1
    1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    2
    3 IN THE MATTER OF: )
    )
    4 PROPOSED NEW 35 ILL. ADM. CODE 217, ) R01-09
    SUBPART W, THE NOx TRADING PROGRAM ) (Rulemaking-Air)
    5 FOR ELECTRICAL GENERATING UNITS, )
    AND AMENDMENTS TO 35 ILL. ADM. )
    6 CODE 211 AND 217 )
    7
    8 The following proceedings were
    9 held in the above-referenced title, held before
    10 MS. CATHERINE F. GLENN, Hearing Officer, taken
    11 before GEANNA M. IAQUINTA, CSR, a notary public
    12 within and for the County of Cook and State of
    13 Illinois, at the James R. Thompson Center, 100
    14 West Randolph Street, Room 9-031, Chicago,
    15 Illinois, on the 26th day of September, A.D.,
    16 2000, scheduled to commence at 9:30 a.m.
    17
    18
    19
    20
    21
    22
    23
    24

    L.A. REPORTING (312) 419-9292
    2
    1 A P P E A R A N C E S:
    2
    ILLINOIS POLLUTION CONTROL BOARD
    3 100 West Randolph Street
    Suite 11-500
    4 Chicago, Illinois 60601
    BY: MS. CATHERINE F. GLENN
    5
    6 ILLINOIS POLLUTION CONTROL BOARD MEMBERS PRESENT:
    7 Mr. Bobb Beauchemp Dr. Ronald Flemal
    Ms. Marili McFawn Mr. Nicholas Melas
    8 Mr. Anand Rao Mr. Joel Sternstein
    9
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY MEMBERS
    10 PRESENT:
    11 Ms. Laurel Kroack Mr. Dennis Lawler
    12 Mr. Yoginder Mahajan Mr. Robert Kaleel
    13 Mr. Robert Messina Ms. Vera Herst
    14 Ms. Kathleen Bassi Mr. Richard Forbes
    15 Ms. Shannon Loveless-Bilbruck
    16
    17
    18 OTHER MEMBERS OF THE PUBLIC WERE IN ATTENDANCE
    AT THE MEETING, BUT NOT NOTED ON THIS APPEARANCE
    19 PAGE.
    20
    21
    22
    23
    24

    L.A. REPORTING (312) 419-9292
    3
    1 I N D E X
    2 THE WITNESSES:
    3 PAGES:
    4 TESTIMONY OF TONY SHEA............ 14
    5 TESTIMONY OF JOSEPH DARGUZAS...... 22
    6 TESTIMONY OF MICHAEL MENNE........ 30
    7 TESTIMONY OF BRIAN URBASZEWSKI.... 77
    8 TESTIMONY OF LENNY DUPUIS........ 115
    9 TESTIMONY OF DEREK FURSTENWERTH.. 147
    10 TESTIMONY OF SCOTT MILLER........ 167
    11 TESTIMONY OF MARY SCHOEN......... 184
    12 TESTIMONY OF ARIC DIERICX........ 233
    13
    E X H I B I T S
    14
    Marked for
    15 Identification
    16 Exhibit No. 30.................... 20
    Exhibit No. 31.................... 23
    17
    Public Comment No. 2.............. 24
    18 Exhibit No. 32.................... 30
    19 Exhibit No. 33.................... 64
    Exhibit No. 34.................... 76
    20
    Exhibit Nos. 35 and 36 .......... 114
    21 Exhibit No. 37................... 147
    22 Exhibit Nos. 38 and 39........... 167
    Exhibit No. 40................... 184
    23 Exhibit No. 41................... 232

    24
    L.A. REPORTING (312) 419-9292
    4
    1 HEARING OFFICER GLENN: Good morning,
    2 everyone. My name is Catherine Glenn, hearing
    3 officer in this proceeding. I'd like to welcome
    4 you here to this hearing being held by the
    5 Illinois Pollution Control Board in the matter
    6 of Proposed New 35 Illinois Administrative Code
    7 217 Subpart W, The NOx Trading Program For
    8 Electrical Generating Units, and Amendments to
    9 35 Illinois Administrative Codes 211 and 217.
    10 Present today on behalf of the
    11 Illinois Pollution Control Board and seated to
    12 my left is Dr. Ronald Flemal. Dr. Flemal is the
    13 board member coordinating this rulemaking.
    14 Seated to Dr. Flemal's left is Board Member
    15 Nicholas Melas. Seated to Member Melas' left is
    16 his attorney assistant, Joel Sternstein. Seated
    17 directly to my right, from our technical unit,
    18 is Anand Rao, and seated next to Mr. Rao is
    19 Board Member Marili McFawn, hidden behind our
    20 court reporter, and seated to Member McFawn's
    21 right is her attorney assistant Bobb Beauchemp.
    22 I have placed copies of the notice

    23 and service list sign-up sheets on the table in
    24 the back. Please note that if your name is on
    L.A. REPORTING (312) 419-9292
    5
    1 the notice list, you will only receive copies of
    2 the Board orders and hearing officer orders. If
    3 your name is on the service list, you will
    4 receive copies of Board orders, hearing officer
    5 orders, and any prefiled testimony that may be
    6 filed.
    7 Keep in mind if your name is on the
    8 service list, you must also serve anything you
    9 file with the Board with the members on the
    10 service list. Copies of the Board's proposed
    11 rule and the hearing officer order are also
    12 located on the table in the back.
    13 Also on the table in the back is a
    14 letter from the Department of Community Affairs
    15 -- Commerce and Community Affairs and a letter
    16 from the Board to DCCA. On July 11th, 2000, the
    17 Illinois Environmental Protection Agency filed
    18 this proposal for rulemaking to create 35
    19 Illinois Administrative Code Part 217 Subpart W,
    20 The NOx Trading Program For Electrical
    21 Generating Units, and Amendments to 35 Illinois

    22 Administrative Codes 211 and 217. On July 13th,
    23 2000, the Board adopted for first notice the
    24 Agency's proposal.
    L.A. REPORTING (312) 419-9292
    6
    1 This proposal was published in the
    2 Illinois Register on August 4th, 2000, at pages
    3 11473 and 11493. Pursuant to Section 28.5(h) of
    4 the Illinois Environmental Protection Act, the
    5 Board shall accept evidence and comments on the
    6 economic impact of any provision of the rule and
    7 shall consider the economic impact of the rule
    8 based on the record.
    9 Under Section 27(b) of the Act, the
    10 Board shall request the Department of Commerce
    11 and Community Affairs, or DCCA, to conduct an
    12 economic impact study, or ECIS, on certain
    13 proposed rules prior to adoption of those
    14 rules. If DCCA chooses to conduct the economic
    15 impact study, DCCA has 30 to 45 days after such
    16 request to produce a study on the economic
    17 impact of the proposed rules.
    18 The Board must make the economic
    19 impact study or DCCA's explanation for not
    20 conducting the study available to the public at

    21 least 20 days before a public hearing on the
    22 economic impact of the proposed rules. In
    23 keeping with Section 27(b), the Board has
    24 requested, by a letter dated August 1st, 2000,
    L.A. REPORTING (312) 419-9292
    7
    1 that DCCA conduct an ECIS for the aforementioned
    2 rulemaking.
    3 In addition to requesting that DCCA
    4 conduct an ECIS, the Board requested that DCCA
    5 notify the Board within ten days after receipt
    6 of the request whether DCCA intended to conduct
    7 the economic impact study. The Board further
    8 noted that if it did not receive such
    9 notification, the Board would rely on a record
    10 -- on a letter from DCCA dated March 10th,
    11 2000, from DCCA as the required explanation for
    12 not conducting the economic impact study.
    13 The March 10th, 2000, letter from
    14 DCCA notified the Board that DCCA would not be
    15 conducting economic impact studies on rules
    16 pending before the Board because DCCA lacked
    17 staff and financial resources to conduct such
    18 studies. The ten days for DCCA to notify the
    19 Board have expired, and the Board has not

    20 received any notification from DCCA that it will
    21 conduct an economic impact study on the
    22 above-referenced rulemaking. Accordingly, the
    23 Board will rely on the March 10th letter from
    24 DCCA as DCCA's explanation for not producing a
    L.A. REPORTING (312) 419-9292
    8
    1 study. Copies of the letters from the Board and
    2 to DCCA and a letter from DCCA to the Board are
    3 at the table in the back.
    4 The Board holds this hearing,
    5 therefore, to conduct public comment on DCCA's
    6 explanation for not conducting an economic
    7 impact study in this rulemaking and also for the
    8 purpose of presenting testimony, documents, and
    9 comments by affected entities and other
    10 interested parties. Like any other regulatory
    11 -- like any other regulatory hearing, any
    12 person who testifies will be sworn and subject
    13 to questioning.
    14 Moreover, this hearing will be
    15 governed by the Board's procedural rules for
    16 regulatory proceedings. All information which
    17 is relevant and not repetitious or privileged
    18 will be admitted. Currently, we have a third

    19 hearing scheduled for Tuesday, October 10th,
    20 2000 at 1:00 p.m. in the Board's hearing room on
    21 the 11th floor of the James R. Thompson Center.
    22 It will be devoted to any Agency response to the
    23 materials submitted at the second hearing
    24 today.
    L.A. REPORTING (312) 419-9292
    9
    1 I intend to ask the Agency during
    2 today's proceedings whether or not they will,
    3 indeed, request this third hearing. Let's see.
    4 Before taking testimony regarding the economic
    5 impact of the proposal, the Agency, I believe,
    6 would like to say a few words regarding a motion
    7 they intend to present a little later this
    8 morning. So, perhaps, Ms. Kroack, if you'd like
    9 to tell us about that motion, and after that we
    10 will get started with hearing from our witnesses
    11 who filed prefiled testimony.
    12 MS. KROACK: Thank you. Good morning.
    13 I'm Laurel Kroack with the Illinois EPA. I
    14 think most of you know me. I'm representing the
    15 Agency today in this matter. As most of you,
    16 I'm sure, are aware, on August 30th, 2000, the
    17 United States Court of Appeals, the D.C.

    18 Circuit, issued an order extending the date for
    19 full implementation of the NOx SIP Call from May
    20 1st, 2003, to May 31st, 2004.
    21 USEPA has not issued any guidance,
    22 whether formal or informal at this point in
    23 time, to indicate how it intends to respond to
    24 that order. In light of the order, though,
    L.A. REPORTING (312) 419-9292
    10
    1 Illinois EPA is intending to submit an
    2 additional rulemaking to the Board, probably on
    3 October 2nd. That rulemaking will propose a
    4 rate-based rule to address attainment for the
    5 Metro East Nonattainment Area, and it will have
    6 a compliance date of May 1st, 2003, to cover the
    7 period between May 1st, 2003, and when the NOx
    8 SIP Call is effective.
    9 The rate-based rule will affect the
    10 same class of units. However, it will be at an
    11 emission rate of 0.25 pounds per million Btu.
    12 We have shared that rulemaking with all of you
    13 in the room. We've had some -- I believe all of
    14 you in the room have had some discussions on
    15 it. We're fairly close to final, but we are not
    16 quite ready to submit it at this point in time,

    17 probably next Monday. If anything happens with
    18 USEPA in the interim, we may propose changes to
    19 that rule or changes to the rule we're currently
    20 addressing today.
    21 Later today, and hopefully in a few
    22 hours, we're going to submit a motion to amend.
    23 That motion will address the compliance date.
    24 We'll move it from May 1st, 2003, to May 31st,
    L.A. REPORTING (312) 419-9292
    11
    1 2004. In that motion to amend, we will not be
    2 adjusting at this point in time the allocations,
    3 size of the compliance supplement pool, or any
    4 of those issues until we get further guidance
    5 from USEPA on what it intends to do with those
    6 matters.
    7 The motion to amend has some other
    8 housekeeping measures, some additional items
    9 that we've received, comments from several of
    10 the EGUS about suggested language changes that
    11 we agree with, and we also have a proposed
    12 approval of the rule from USEPA that was
    13 published in the Federal Register, and they've
    14 raised a couple of issues that we intend to
    15 correct with this motion as well.

    16 Just to be clear, we may be
    17 suggesting additional language changes in the
    18 comment period if necessary, but we hope this
    19 covers most of them, if not all of them, and
    20 that's all I have. Thank you.
    21 HEARING OFFICER GLENN: Thank you,
    22 Ms. Kroack. Before we get started then this
    23 morning, I would like to ask if Board Member
    24 Flemal would like to add anything?
    L.A. REPORTING (312) 419-9292
    12
    1 BOARD MEMBER FLEMAL: Welcome everybody,
    2 and I look forward to today's proceeding.
    3 HEARING OFFICER GLENN: What I'd like to
    4 do first is see if there's anybody who would
    5 like to testify regarding DCCA's lack of an
    6 economic impact study. If there is someone who
    7 would like to testify, please raise your hand,
    8 and we will get you sworn in.
    9 Okay. Seeing that no one wants to
    10 testify on DCCA's lack of an ECIS study, let's
    11 get to the matter at hand then. We did receive
    12 prefiled testimony from eight people. I would
    13 like to have them testify in the following
    14 order. After I read all of your names, let's

    15 get you all sworn in at the same time, and then
    16 we can proceed accordingly.
    17 The first witness today will be Tony
    18 Shea from Goodwin Environmental Consultants.
    19 The second witness will be Joseph Darguzas of
    20 Goodwin Environmental Consultants, Michael Menne
    21 from the Ameren Corporation, Brian Urbaszewski
    22 from the American Lung Association of
    23 Metropolitan Chicago, Mr. Lenny Dupuis from
    24 Dominion Environmental, followed by Derek
    L.A. REPORTING (312) 419-9292
    13
    1 Furstenwerth of Reliant Energy. Scott Miller
    2 will follow him, and he's from Midwest
    3 Generation, and our last witness today will be
    4 Mary Schoen of Enron Corp.
    5 Pursuant to Section 28.5, prefiled
    6 testimony will be accepted into the record
    7 without reading of the testimony at hearing
    8 provided that the witness swears to the
    9 testimony and is available for questioning.
    10 Therefore, it's up to all of you individually.
    11 If you'd like to read it in, that's fine. If
    12 you'd like to summarize your testimony, that is
    13 welcome as well, whatever you are comfortable

    14 doing. I would ask after you all are sworn in
    15 and as you come up individually to testify that
    16 you present a copy of your testimony if you have
    17 it with you to me and we will admit it as if
    18 read as an exhibit.
    19 So are there any questions, I guess,
    20 on any of that first of all? All right. Well,
    21 let's begin. Mr. Shea, would you like to start
    22 things this morning? I'm sorry. Could all of
    23 you that are testifying first get sworn in, and
    24 then we'll start with Mr. Shea.
    L.A. REPORTING (312) 419-9292
    14
    1 (Witnesses sworn.)
    2 HEARING OFFICER GLENN: Thank you. Okay,
    3 Mr. Shea.
    4 MR. SHEA: Hello. My name is Tony Shea.
    5 First, I'd like to thank you for allowing me
    6 this opportunity to speak at today's hearing,
    7 and just a correction, I'm actually employed by
    8 ABB Energy Ventures of Princeton, New Jersey, as
    9 project manager, and Goodwin Environmental, they
    10 are a consultant of ours who we had asked to
    11 submit my prefiled testimony on my behalf.
    12 Through our subsidiary, Grand

    13 Prairie Energy, our company is developing a 500
    14 megawatt combined cycle electric generating
    15 facility in Bartlett, which is in DuPage County,
    16 Illinois. We're also considering future
    17 development of additional units at the Bartlett
    18 site, although no definite plans for such units
    19 exist as yet. We currently project start-up of
    20 our facility may occur during the second quarter
    21 of 2003.
    22 The recently issued IEPA
    23 construction permit for Grand Prairie's Bartlett
    24 facility provides for a maximum NOx emission
    L.A. REPORTING (312) 419-9292
    15
    1 rate of 0.017 pounds per million Btu when
    2 burning gas and 0.043 pounds per million Btu
    3 when burning oil, both at maximum load. This is
    4 far below the target average emission rate of
    5 0.15 pounds per million Btu for all budget
    6 EGUs. Nevertheless, we project that our May 1st
    7 through September 30th seasonal NOx emissions
    8 for 2002 and for subsequent years may be as much
    9 as 90 tons and that we would be in competition
    10 for allocation of the required NOx allowances
    11 from the new source set-aside for the years

    12 2003, 2004, and 2005.
    13 Previous testimony by Agency
    14 witnesses suggests that 50 or more new power
    15 plants may be competing for a share of the 1,535
    16 allowances available from the new source
    17 set-aside for 2003, 2004, and 2005. Testimony
    18 by Richard Bulley, Executive Director of MAIN,
    19 at the August 23rd, 2000, Board hearing on
    20 peaker plants indicates that additional
    21 generating capacity beyond that which presently
    22 exists in the MAIN region is essential for
    23 provision of reserve generating capacity margins
    24 necessary for reliable service.
    L.A. REPORTING (312) 419-9292
    16
    1 We believe the proposed number of
    2 allowances for new sources will fall far short
    3 of what is needed to accommodate this additional
    4 capacity. We recognize that the number of new
    5 source set-aside allowances is limited by
    6 statute to five percent of the total EGU budget,
    7 but we're also very concerned about the
    8 availability of sufficient allowances on the
    9 open market as a reasonable and affordable cost
    10 to meet the needs of all new sources that will

    11 have a need for them.
    12 If allowances are not available or
    13 cannot be purchased at an affordable price, we
    14 would be left at a serious competitive
    15 disadvantage and unable to produce the revenue
    16 stream during the May through September control
    17 period necessary to recover our investment.
    18 Equally important, electric energy
    19 customers in Illinois may see a supply shortage
    20 during summer peak demand periods if newly-added
    21 generating capacity cannot be operated because
    22 allowances are not available.
    23 We recommend, therefore, that the
    24 Board maintain the new source set-aside at the
    L.A. REPORTING (312) 419-9292
    17
    1 statutory maximum and that the Agency seek
    2 legislative approval to increase the maximum new
    3 source set-aside to a level commensurate with
    4 need to meet the projected increasing demand and
    5 to maintain adequate capacity reserve. The size
    6 of the new source set-aside should be whatever
    7 is required to allow allocation to new sources
    8 at the same ratio of allowances allocated to
    9 allowances needed as is applicable to existing

    10 sources listed in Appendix F of proposed Subpart
    11 W.
    12 We also urge that the percent new
    13 source set-aside proposed by the Agency for 2006
    14 and subsequent years be increased to the
    15 statutory maximum with a provision that any such
    16 allowances not allocated to new sources be
    17 distributed to existing budget EGUs on a pro
    18 rata basis. This would help new EGUs compete
    19 with existing EGUs on a more nearly level
    20 playing field than provided in the Agency's
    21 proposal.
    22 We also question the fairness of the
    23 Agency's proposal to charge a fee for allowances
    24 allocated from the new source set-aside for EGUs
    L.A. REPORTING (312) 419-9292
    18
    1 which begin operation after January 1st, 2003,
    2 which exceeds what the Agency requires to
    3 administer the NOx trading program.
    4 As proposed, any fee revenue which
    5 exceeds the Agency's cost for administering the
    6 NOx trading program will be distributed to
    7 existing EGUs. This effectively results in new
    8 EGUs being forced to subsidize the operations

    9 of their competitors in what is supposed to be a
    10 free market for wholesale electrical power. It
    11 is our contention that it is unreasonable and
    12 unfair to place such a disproportionate cost
    13 burden on new sources. The legislation allows,
    14 but does not mandate fees for new source
    15 allowances.
    16 We urge the Board to reject this
    17 part of the Agency's proposal or at least to
    18 limit the fees to a level commensurate with the
    19 Agency's administrative costs. Another concern
    20 we have is that the Agency's proposal encourages
    21 continued operation of old, comparatively
    22 inefficient EGUs because allocation of
    23 allowances is based on historic heat input
    24 rather than either future heat input or net
    L.A. REPORTING (312) 419-9292
    19
    1 electric output. A much more environmentally
    2 friendly approach would reward energy efficiency
    3 by basing the allocation of allowances on net
    4 generation or adjusting the allocations for net
    5 heat rate so that comparatively efficient EGUs
    6 would receive more allowances.
    7 This would cause less reliance on

    8 older units and greater reliance on newer units
    9 and would result in lower aggregate emissions of
    10 not just NOx, but particulate matter, carbon
    11 monoxide, sulfur dioxide, VOM, and carbon
    12 dioxide as well.
    13 We believe that with these changes
    14 this would result in a more equitable and
    15 environmentally sound program for limiting NOx
    16 emissions from electric generating facilities.
    17 Thank you.
    18 HEARING OFFICER GLENN: Thank you, Mr. Shea.
    19 Before we ask questions of you, could I ask that
    20 you make a motion to have your prefiled
    21 testimony admitted as an exhibit, please?
    22 MR. SHEA: I move to have my prefiled
    23 testimony admitted as --
    24 HEARING OFFICER GLENN: An exhibit?
    L.A. REPORTING (312) 419-9292
    20
    1 That's fine. Anyone object? The motion is
    2 granted. I'm going to get a copy of your
    3 testimony. Do you have one? This will be
    4 marked as Exhibit 30. At the Board's hearing on
    5 August 28th, we already admitted Exhibits 1
    6 through 29. Just give a moment to mark this,

    7 and then we will have some questions.
    8 (Exhibit No. 30 marked
    9 for identification,
    10 9-26-00.)
    11 HEARING OFFICER GLENN: Okay. Let's
    12 see. What I'd like to do is see if there are
    13 any questions from the Board first of Mr. Shea
    14 and then go to the Agency and then the members
    15 of the public that are present.
    16 BOARD MEMBER FLEMAL: A clarification on
    17 your own anticipated emissions at Bartlett, that
    18 is 90 tons for the ozone season is what you're
    19 anticipating would be your --
    20 MR. SHEA: That would be the maximum.
    21 BOARD MEMBER FLEMAL: It would be your
    22 maximum. It could be less than that depending
    23 upon how much you need to run the facility?
    24 BOARD MEMBER FLEMAL: That's correct.
    L.A. REPORTING (312) 419-9292
    21
    1 HEARING OFFICER GLENN: Anyone else from
    2 the Board have a question for Mr. Shea?
    3 MR. RAO: That 90 tons, is that a
    4 permitted rate or an annual --
    5 MR. SHEA: The 90 tons is based on the

    6 permitted number, yes.
    7 MR. RAO: And in your testimony you --
    8 you know, your reference to cost allowances, you
    9 said, you know, you'd like it to be a reasonable
    10 and affordable cost.
    11 Has your company made any estimates
    12 of what it thinks is a reasonable and affordable
    13 cost for allowances?
    14 MR. SHEA: The fee for the allowances?
    15 MR. RAO: Uh-huh.
    16 MR. SHEA: What we think would be
    17 reasonable and fair would be no more than what
    18 is required for the administrative cost for the
    19 Agency to handle this creating program.
    20 MR. RAO: Thank you.
    21 HEARING OFFICER GLENN: Would the Agency
    22 like to ask any questions of Mr. Shea?
    23 MS. KROACK: We have no questions of this
    24 witness. Thank you.
    L.A. REPORTING (312) 419-9292
    22
    1 HEARING OFFICER GLENN: Members of the
    2 public? Okay.
    3 MS. McFAWN: I have a question.
    4 Based on your answer to Mr. Rao, if

    5 the fees are limited to the Agency's
    6 administrative costs, then it will always be
    7 cheaper to do your trading through the Agency?
    8 MR. SHEA: The problem that we have with
    9 the proposal as it stands is that any fees above
    10 the costs required by the Agency would be
    11 redistributed back to the existing EGUs.
    12 MS. McFAWN: So that's what the real
    13 problem is?
    14 MR. SHEA: Yes.
    15 MS. McFAWN: Thank you.
    16 HEARING OFFICER GLENN: Are there any
    17 other questions of Mr. Shea this morning?
    18 Seeing none, Mr. Shea, thank you very much for
    19 your testimony this morning.
    20 MR. SHEA: Thank you.
    21 HEARING OFFICER GLENN: Next we will hear
    22 from Mr. Darguzas, please. Good morning.
    23 MR. DARGUZAS: Good morning. Members of
    24 the Board, Madam Hearing Officer, Agency
    L.A. REPORTING (312) 419-9292
    23
    1 representatives, good morning, and thank you for
    2 the time and courtesy of hearing us out today.
    3 I would like to ask that my previously filed

    4 written testimony be entered into the record,
    5 and I also have a summary of the remarks that
    6 I'd like to mark this morning that I would also
    7 like to ask be entered this morning as a public
    8 comment.
    9 HEARING OFFICER GLENN: That's fine.
    10 Let's do that now, if you don't mind.
    11 MR. DARGUZAS: Do you mind if I
    12 approach?
    13 HEARING OFFICER GLENN: Please.
    14 MR. DARGUZAS: This is the prefiled.
    15 HEARING OFFICER GLENN: Okay. We will
    16 mark the prefiled testimony of Mr. Darguzas as
    17 Exhibit 31 and we will mark the supplemental
    18 testimony of Mr. Darguzas as Public Comment No.
    19 2.
    20 (Exhibit No. 31 marked
    21 for identification,
    22 9-26-00.)
    23
    24
    L.A. REPORTING (312) 419-9292
    24
    1 (Public Comment No. 2
    2 marked for identification,

    3 9-26-00.)
    4 MR. DARGUZAS: Does that mean I have to
    5 try harder?
    6 HEARING OFFICER GLENN: Mr. Darguzas, I
    7 would ask that you would send a copy of this
    8 public comment to everyone on our service list.
    9 MR. DARGUZAS: Yes, ma'am.
    10 HEARING OFFICER GLENN: Thank you very
    11 much. Please begin.
    12 MR. DARGUZAS: I'd like to just summarize
    13 a few of what I believe are key points that I
    14 would like to bring forward for your attention.
    15 My name, again, is Joe Darguzas. I'm an officer
    16 with a newly formed company called EnviroPower.
    17 We're headquartered in Lexington, Kentucky, but,
    18 in fact, have a project going through the
    19 permitting process in southern Illinois.
    20 I'd like to distinguish our project,
    21 perhaps, from some of the other gas turbine
    22 combined cycle units that are kind of the rage
    23 here in Illinois at this time. We are proposing
    24 to build a solid fuel, in fact, coal waste -
    L.A. REPORTING (312) 419-9292
    25
    1 primarily coal waste fired circulation fluidized

    2 bed in central Illinois. In addition to meeting
    3 all of the best available control technology air
    4 emissions, our project will also eliminate a
    5 solid and a water waste problem that exists in
    6 and around coal mines. We will use the refuse,
    7 the coal refuse and the coal tailings that were
    8 produced in the coal cleaning process, perhaps,
    9 as long as 50 years ago as our fuel source for
    10 our project.
    11 With that introduction, I would like
    12 to, again, highlight a few items of confusion
    13 that I have about the proposed rule. I don't
    14 understand why the Agency seems to be favoring
    15 the existing or the so-called Appendix F
    16 generating units in this rulemaking. This and
    17 what I would consider the more restrictive new
    18 source set-aside program proposed by the Agency
    19 will hurt small start-up companies like
    20 EnviroPower.
    21 I really strongly believe that
    22 Agency rulemaking should not shift economic
    23 development opportunities to other parts of the
    24 country by imposing rules that are more
    L.A. REPORTING (312) 419-9292
    26

    1 stringent than those being proposed or being
    2 considered in the states contiguous to
    3 Illinois.
    4 Just to give an example of, again,
    5 why I believe that our clean coal fluidized bed
    6 technology deserves special consideration is
    7 that our uncontrolled NOx emissions will be
    8 about .2 pounds per million Btu, which is lower
    9 than all of the existing generating unit sources
    10 listed in the Agency's technical support
    11 document. We are proposing SNCR's control
    12 technology and our target NOx emission with SNCR
    13 on a solid fuel waste fuel whole refuse plant is
    14 about .07, which, again, puts us among the best
    15 of the best in the Agency's technical support
    16 document.
    17 To be a little more specific, our
    18 project is scheduled to start up about the same
    19 time as the ozone season in 2004. Based on
    20 advice that we've received from the Agency, our
    21 air permit application is suggesting a testing
    22 program where we will try to demonstrate
    23 sustainable NOx emission levels no greater
    24 than .12 pounds per million and perhaps as low
    L.A. REPORTING (312) 419-9292
    27

    1 as the .07 number that I just mentioned.
    2 I presume that the Agency will then
    3 make the number we demonstrate our permit
    4 limit. If I understand the rules correctly, in
    5 a matter of only a few years after we
    6 demonstrate the lowest possible NOx emission
    7 levels that we can achieve, we'll only be
    8 granted allowances that are about half of what
    9 we've just demonstrated as the best we can do.
    10 That seems to me to be unfair on its face. We
    11 would rather support -- we do support and we'd
    12 rather see a rulemaking that would either grant
    13 us allowances based on the .15 pounds per
    14 million Btu that EPA is suggesting or our
    15 permitted NOx level, whichever is lower, but not
    16 to then -- then to cut us in half after we've
    17 demonstrated the best that we can possibly do.
    18 Thank you very much for hearing me
    19 out this morning.
    20 HEARING OFFICER GLENN: Thank you, Mr. Darguzas.
    21 MR. DARGUZAS: Joe would be fine.
    22 HEARING OFFICER GLENN: Are there any
    23 questions for our witness from the Board this
    24 morning?
    L.A. REPORTING (312) 419-9292

    28
    1 BOARD MEMBER FLEMAL: Let me just try to
    2 clarify those numbers that you're talking about
    3 in terms of the emissions in the units of tons.
    4 In your prefiled testimony, Exhibit 31, you say
    5 that your expected seasonal NOx emissions is
    6 1,100 tons.
    7 MR. DARGUZAS: Approximately, yes, sir.
    8 BOARD MEMBER FLEMAL: And is that the
    9 figure that's already halved that you speak of,
    10 or do you anticipate that the allocation would
    11 actually be half of this 1100?
    12 MR. DARGUZAS: As best I can recall, that
    13 number is based on the before half number. It's
    14 based on the .12 pounds per million.
    15 BOARD MEMBER FLEMAL: So 550 tons over
    16 the season is what you're anticipating?
    17 MR. DARGUZAS: If we can demonstrate our
    18 control technology, yes, sir.
    19 HEARING OFFICER GLENN: Any further
    20 questions from the Board? Does the Agency have
    21 any questions of this witness?
    22 MS. KROACK: Yes. We just have one
    23 question. Good morning, Mr. Darguzas.
    24 MR. DARGUZAS: Joe.
    L.A. REPORTING (312) 419-9292

    29
    1 MS. KROACK: Joe.
    2 Are you aware that the allocation
    3 methodology for a source such as yours would
    4 allow it to roll into the flex portion of our
    5 allocation methodology after you've been in
    6 operation for three or four years?
    7 MR. DARGUZAS: Yes, ma'am.
    8 MS. KROACK: Are you aware that once
    9 you've rolled in the flex portion, no fee will
    10 be charged for those allowances?
    11 MR. DARGUZAS: Yes.
    12 MS. KROACK: Thank you. That's all the
    13 questions we have.
    14 HEARING OFFICER GLENN: Thank you, Ms. Kroack.
    15 Do any members of the public have a question for
    16 our witness this morning?
    17 Seeing that there are no further
    18 questions of Mr. Darguzas, we thank you very
    19 much for your time.
    20 MR. DARGUZAS: You're welcome.
    21 HEARING OFFICER GLENN: Okay. Mr.
    22 Menne.
    23 MR. RIESER: Good morning, Madam Hearing
    24 Officer. My name is David Rieser with the law
    L.A. REPORTING (312) 419-9292

    30
    1 firm of Ross and Hardies, and I'm looking for an
    2 extra copy of our testimony that was prefiled,
    3 there you go, to have it marked as I believe it
    4 would be Exhibit 32.
    5 HEARING OFFICER GLENN: Thank you,
    6 Mr. Rieser. We will mark the prefiled testimony
    7 of Mr. Michael Menne as Exhibit 32.
    8 (Exhibit No. 32 marked
    9 for identification,
    10 9-26-00.)
    11 MR. RIESER: My name is David Rieser with
    12 Ross and Hardies. I'm here on behalf of Ameren
    13 Corporation. I would like to call Mr. Menne to
    14 summarize his testimony that we've already
    15 prefiled. I also have at the table Mr. Steven
    16 Whitworth with Ameren Corporation to respond to
    17 specific technical questions that the Board and
    18 the public might have as to the operation of the
    19 facilities, but I'd like to call Mr. Menne.
    20 He'll be our principal witness.
    21 HEARING OFFICER GLENN: Thank you, Mr.
    22 Rieser. Mr. Menne.
    23 MR. MENNE: Good morning. As was
    24 mentioned, my name is Mike Menne. My title is

    L.A. REPORTING (312) 419-9292
    31
    1 manager of the environmental, safety, and health
    2 department, Ameren Services division of Ameren
    3 Corporation. Our offices are based in downtown
    4 St. Louis, Missouri, and I'm responsible for
    5 providing guidance and developing strategies for
    6 environmental compliance throughout the Ameren
    7 system. My staff and I have followed the
    8 development of the NOx control regulations at
    9 both the state and national level for the past
    10 several years. I will be basically just doing a
    11 summary of the written statements. So I may be
    12 jumping around a little bit to try and just
    13 summarize what I have to say.
    14 Ameren operates six large generating
    15 stations in Illinois. We burn a variety of
    16 fuels, including coal, oil, and natural gas with
    17 a total generating capacity of nearly 3300
    18 megawatts. These are identified as EGUs under
    19 this proposal and are listed in Appendix F.
    20 These are base load facilities which provide
    21 electricity for central and southern Illinois
    22 homes and businesses. Ameren has also installed
    23 over 600 megawatts of new peaking capacity in
    24 Illinois over the past two years and is planning

    L.A. REPORTING (312) 419-9292
    32
    1 several additional units may be located within
    2 the state.
    3 As such, Ameren should be viewed as
    4 a company representing both extensive existing
    5 units and a significant number of new units that
    6 will be affected by this rule. I wish to note
    7 for the record that Ameren has been acknowledged
    8 as a leader in NOx control accomplishments at
    9 our coal-fired generating facilities. Beginning
    10 in 1991, AmerenUE began a series of research
    11 projects and installed advanced combustion
    12 control technologies on several of our
    13 generating units. Our continuing commitment and
    14 goal is to achieve the lowest possible NOx
    15 emissions on these units which has resulted in
    16 unprecedented success.
    17 For the year 1999, AmerenUE operated
    18 the lowest NOx emitting large coal-fired
    19 generating unit in the nation and six out of the
    20 ten lowest emitting units in the country. Our
    21 work with the Electric Power Research Institute
    22 in applying these technologies -- new
    23 technologies on one of our cyclone-fired boilers

    24 fire, which is a boiler with particularly high
    L.A. REPORTING (312) 419-9292
    33
    1 NOx emissions, resulted in that cyclone-fired
    2 boiler being the lowest NOx emitting
    3 cyclone-fired unit in the nation, and it earned
    4 the company the Governor's Pollution Prevention
    5 Award for Missouri in 1998.
    6 We're currently working to install
    7 these technologies on all our other Ameren
    8 generating units, including our largest units in
    9 Illinois and are planning to install additional
    10 innovative technologies on our Illinois units
    11 within the next couple of years.
    12 I wish to express our appreciation
    13 for all the hard work that the Illinois EPA
    14 staff has given to this process. This rule
    15 represents the most stringent and costly
    16 pollution control requirement in the history of
    17 the operation of our existing generating units.
    18 I believe the Agency knew this going into this
    19 process and knew this would be a difficult and
    20 contentious regulation. We have discussed the
    21 issues with the other generators in the state
    22 and have attempted to arrive at consensus

    23 positions with the Illinois EPA.
    24 While we do have a few minor issues
    L.A. REPORTING (312) 419-9292
    34
    1 with the proposed rule, we believe the Agency
    2 has worked hard to seek participation of
    3 stakeholders and to provide consensus solutions
    4 to difficult problems. Ameren commends the IEPA
    5 for its hard work in developing the proposal and
    6 its thoroughness in presenting its proposal to
    7 the Board and to the public.
    8 There are three main issues I wish
    9 to cover in my testimony today. These are with
    10 regard to the so-called .25 rule which was
    11 alluded to earlier by the Illinois EPA, the
    12 allocation of allowances, which I think is
    13 probably going to be the main subject that you
    14 hear from different people here today, and also
    15 the issue of early reduction credits.
    16 With regard to the .25 rule, you
    17 might ask the question why am I bringing up the
    18 .25 rule? We're talking about a SIP Call rule,
    19 which is a .15 rule. The first thing I would
    20 like the Board to understand is that in the
    21 development of coming up with a control -- NOx

    22 control program for the state, we believe that
    23 we were very close to having a consensus on
    24 developing this .25 rule that the Agency
    L.A. REPORTING (312) 419-9292
    35
    1 referenced earlier.
    2 The .25 rule was a rule that a
    3 number of states had proposed as their answer to
    4 the SIP Call. We believe the .25 rule not only
    5 is all that is necessary for attainment of the
    6 one-hour standard in the St. Louis area, but we
    7 also believe that the additional modeling work
    8 that is being done on the .25 controls in the
    9 state would also have shown attainment with the
    10 one-hour standard in the Chicago area.
    11 We also believe that the .25 rule
    12 can satisfy all the requirements under the Clean
    13 Air Act for downwind transport of emissions from
    14 Illinois sources on their impacts to
    15 nonattainment areas. In other words, what I'm
    16 suggesting is we believe, and I think the Agency
    17 was concurring with us, and we're still working
    18 on some modeling studies and things, that a .25
    19 rule was what we needed to do to satisfy the SIP
    20 Call issues. Now, since the court upheld the

    21 SIP Call and the EPA has now come in and
    22 basically forced NOx tonnage budgets on the
    23 state, that is the reason why we're examining
    24 the rule that is before you today.
    L.A. REPORTING (312) 419-9292
    36
    1 We wanted to make you aware and we
    2 feel that the .25 rule was all that was legally
    3 and technically required to satisfy the SIP Call
    4 if it wasn't for the fact that the federal EPA
    5 is forcing the states' hand to adopt the SIP
    6 Call measure.
    7 I wanted to address a little bit of
    8 the difference in the cost between compliance
    9 with the .25 rule and the proposed rule with
    10 points that I'll make later on. In the Ameren
    11 electric generating units in Illinois,
    12 compliance to meet the .25 rule would be roughly
    13 around $30,000,000 on our units, and for that --
    14 for that kind of cost, we would reduce about
    15 12,000 tons of NOx. The rule that's before you
    16 today is going to cost us around $130,000,000.
    17 For that additional $100,000,000, you reduce
    18 about 2800 tons. So the point I'm trying to
    19 make is simply as you get down to these lower

    20 levels, that the benefit you get for the money
    21 you're applying, it really diminishes. You have
    22 a point of diminish in returns. The costs go up
    23 very expedientially as you get to lower and
    24 lower levels. When you start talking about the
    L.A. REPORTING (312) 419-9292
    37
    1 allowance allocation schemes, that's an
    2 important concept to remember.
    3 The second reason I wanted to bring
    4 up the .25 rule is simply because of the fact
    5 that there's still a lot of litigation going on
    6 out there with regard to the NOx SIP Call. A
    7 number of industries and states are going to be
    8 appealing this NOx SIP Call rule to the Supreme
    9 Court. There's already litigation ongoing with
    10 regard to the NOx tonnage budgets that are being
    11 allocated to the states. There's also
    12 litigation going on with Clean Air Act, Section
    13 1.6 petitions.
    14 So a lot of these things can have an
    15 effect on whether or not the federal NOx SIP
    16 Call rule will ultimately be put in place, and
    17 if that is not put in place in a number of
    18 neighboring states, then we would like to see

    19 the .25 rule implemented here in the state of
    20 Illinois and not go forward with the NOx SIP
    21 Call, and that's one reason we have encouraged
    22 the Agency to develop a .25 rule for the May
    23 2003 compliance time. So that rule will be in
    24 place if something happens with the NOx SIP Call
    L.A. REPORTING (312) 419-9292
    38
    1 rule.
    2 There's a second area I wanted to
    3 address with regard to allowance allocations.
    4 You're going to hear a lot today about different
    5 schemes for allocating allowances to new units
    6 and to existing units. I think it's important
    7 for the Board to understand that the Agency has
    8 been working on this issue for a long time,
    9 probably the last couple of years or more, and
    10 they have looked at a lot of different
    11 allocation schemes.
    12 The basic problem we have here is
    13 that the EPA has not given us enough tons to go
    14 around. That's what it really amounts to. So
    15 existing units are going to be required to
    16 expend exorbitant costs to try and get their
    17 emissions down to a level to try and meet this

    18 rule. At the same time, there's a lot of new
    19 generation coming in. They're going to have to
    20 take units from the set-aside from the existing
    21 units as well as they may have to go into the
    22 market to purchase allowances in order for them
    23 to operate each year.
    24 This is a bad situation for both
    L.A. REPORTING (312) 419-9292
    39
    1 types of units as far as I'm concerned because
    2 the NOx budget is simply too low, but, in our
    3 view, what the Agency has come up with is
    4 probably the most and fair equitable approach.
    5 You start with a five percent set-aside for the
    6 new units, and then after a couple of years, you
    7 begin to go into a flex portion where the new
    8 units that have been in operation will gradually
    9 begin to get more and more of the allowance
    10 share, and then over the next couple of years,
    11 they get a greater percentage until you get out
    12 to ten years where basically everybody gets
    13 shares based on the heat input, and we think
    14 that it took a lot of thought to go into that
    15 process. It considered the fact that there's a
    16 lot of generation that has gone in the last

    17 couple of years and is coming in on line, and it
    18 is gradually allowing those new units as they
    19 come in to get access to more tons.
    20 At the same time what it's doing for
    21 existing units, the existing units, we don't
    22 know what our allocations are going to be once
    23 those flex -- fixed/flex portions start to kick
    24 in. We know that this will continue to ratchet
    L.A. REPORTING (312) 419-9292
    40
    1 our emissions over time. We're going to have to
    2 install more pollution control equipment over
    3 time, but it creates a large uncertainty for us
    4 because we're not sure exactly how many
    5 allowances we're going to have to get. We're
    6 not sure of the level and the degree of
    7 pollution control equipment we might have to add
    8 in those future years. So it does create an
    9 uncertainty for us. It's a problem for us, but
    10 we do believe that the system the Agency has
    11 come up with is probably the most fair and
    12 equitable approach.
    13 I would like to address a couple of
    14 things that have come up in the prefiled
    15 testimony of others and that you've already

    16 heard a little bit today. One is with regard to
    17 new units suggesting that they should get a
    18 point -- NOx allocation scheme for their new
    19 units associated with .15 pounds per million
    20 baseline, and they say that's what the existing
    21 units allocation scheme is based on so that they
    22 are making a plea that they should get the same
    23 sort of NOx allocations.
    24 First of all, I think it's important
    L.A. REPORTING (312) 419-9292
    41
    1 for the Board to note that existing units will
    2 not be getting enough tons allowances in NOx
    3 tons to allow us to us operate at a .15 level.
    4 It's going to be much lower than, and that's for
    5 a couple of reasons. First of all, when EPA set
    6 up a baseline tonnage budget for these states,
    7 they did that based on Btus generated in 95-96
    8 time frame from the electrical generating units
    9 in the state. They then applied a growth
    10 projection factor to the Btus that were
    11 generated in those historic years out to 2007
    12 and predicted what Btus would be generated in
    13 the state after you assume a certain amount of
    14 growth.

    15 The Btus that they projected were
    16 supposed to account for both new and existing
    17 units. In fact, the Btus that were generated in
    18 the state just by existing generators during
    19 1998 already exceeded what EPA projected our
    20 Btus would be in the state for the year 2007,
    21 and they went higher than that in '99. They're
    22 going to go higher again this year. So what
    23 that causes us to do is instead of having a .15
    24 tonnage allowance system that we have that would
    L.A. REPORTING (312) 419-9292
    42
    1 allow us to operate at .15 pounds per million,
    2 we have to subtract out the growth that is
    3 incurring in the state, and that is going to
    4 require our units to meet something like a .12
    5 or .11 pounds per million Btu average just at
    6 the start of this program. This is for existing
    7 units.
    8 Another reason for that is because
    9 of the five percent set-aside for new sources.
    10 That also comes out of our budget. So that
    11 drives the actual emission rate that we will
    12 have to meet on our existing generating units
    13 down, and, as I said, that will go down lower

    14 than that over time.
    15 So our point is simply that even the
    16 existing units are not getting NOx allocation
    17 tons equivalent to .15 times our current
    18 emission levels. It's much lower than that. So
    19 we would strongly disagree with giving new units
    20 something at .15 pounds per million level
    21 because we're not even getting those kind of
    22 tonnage allocations.
    23 The second thing is simply that most
    24 new units will operate or will need much less
    L.A. REPORTING (312) 419-9292
    43
    1 than that level of tonnage for operation. Most
    2 units will -- most new units will need 50 to 100
    3 tons, a couple hundred tons per year during the
    4 ozone season. There are some exceptions like
    5 the gentleman who just testified who has a much
    6 larger database for units.
    7 However, to allow them to get
    8 allowances based on .15 would be two to three
    9 times as many tons as they actually need to
    10 operate during the season. Existing units are
    11 not asking for any excess allowances. It's
    12 going to be difficult enough for us just to get

    13 down to the allowances that we are given under
    14 this program. So we would not want to see
    15 allowances just given away to new sources.
    16 That's going to make it much more difficult for
    17 all of us to live under the permit.
    18 I also just wanted to address
    19 something that may come up since some of the
    20 prefiled testimony is with regard to retiring
    21 existing generators. We've worked with most of
    22 the generators in the state, the companies that
    23 operate generating facilities in the state and
    24 have for many years and have a number of
    L.A. REPORTING (312) 419-9292
    44
    1 committees to discuss a number of issues. I am
    2 not aware of any existing generators in the
    3 state that have any plans for retirement over
    4 the lifetime or at least until 2010 when these
    5 allocations basically become equal for all
    6 sources, and after 2010, the allocations are
    7 based on actual heat input. So those retired
    8 units, if a unit does retire after that, they're
    9 not going to get allowances anymore. So I don't
    10 think there's really an issue with retirement of
    11 the units.

    12 The last issue I wanted to discuss
    13 was with regard to early reduction credits. If
    14 you're trying to follow along with my testimony,
    15 this picks up about three pages from the end
    16 right at the bottom. Early reduction credits
    17 are extremely valuable to existing units in the
    18 state because they provide the time for the
    19 development and installation of new innovative
    20 and possibly less costly control technologies,
    21 and they also provide the time necessary to
    22 install and start up most expensive and
    23 long-lead time control technologies.
    24 Again, the problem here is that
    L.A. REPORTING (312) 419-9292
    45
    1 there are a very limited number of early
    2 reduction credits available. Under the proposed
    3 rule, half of the early reduction credits will
    4 be made available for reductions in 2001 and the
    5 other half in 2002. We believe the Agency
    6 should stick with this schedule because of the
    7 shift in the compliance date for this rule that
    8 was alluded to earlier, allowing the early
    9 reduction credits to be used in 2004 and 2005,
    10 assuming that the federal EPA will allow that to

    11 happen. One of the things that's in the
    12 proposed rule, as I understand it, is that the
    13 years in which you will earn early reduction
    14 credits will slide if the compliance date for
    15 the SIP Call slides, which it now has, and
    16 basically what we're saying is we would not like
    17 to see that happen. We'd like to see the early
    18 reduction credits remain in 2001 and 2002, and
    19 then apply in 2004 and 2005.
    20 Our logic for this is as follows:
    21 First, we fully expect that the pool of early
    22 reduction credits will be oversubscribed. Thus,
    23 companies will prorate the amount of early
    24 reduction credits they can earn. This results
    L.A. REPORTING (312) 419-9292
    46
    1 in considerable uncertainty as to the amount of
    2 early reduction credits any given company might
    3 be able to obtain, thus reducing the ability of
    4 a company to know what controls will be needed
    5 to comply with during -- to comply with the rule
    6 during the 2004 and presumably 2005 ozone
    7 season. If you delay all or part of the
    8 distribution of early reduction credits, it will
    9 result in a greater oversubscription of the pool

    10 and increase the uncertainty for those companies
    11 trying to earn those credits, and it will
    12 penalize companies which have expended
    13 considerable time and cost to reduce emissions
    14 at an early date.
    15 Second, during the development of
    16 the Federal NOx SIP Call rule, it's always been
    17 assumed that early reduction credits will be
    18 earned in 2001 and 2002. To delay this schedule
    19 will be a major setback in the achievement of
    20 early air quality improvements and the
    21 scheduling of NOx control projects planned for
    22 EGUs. We also do not believe that one or two
    23 pollution control projects at any one site
    24 should consume a major portion of the available
    L.A. REPORTING (312) 419-9292
    47
    1 ERCs in any one year.
    2 To get the most air quality benefit
    3 and the largest variety of sources without
    4 significant penalties to early NOx reduction
    5 plans, we firmly believe the Agency should keep
    6 the original early reduction credits baseline
    7 and schedule for obtaining the early reduction
    8 credits as proposed in the rule without the date

    9 adjustment provisions.
    10 The other concern we have is with
    11 regard to the schedule of how the Agency is
    12 planning to issue the early reduction credits.
    13 Basically, their schedule would call for them to
    14 issue the credits in May of the following year.
    15 In other words, if they were to
    16 allow early reduction credits to be earned in
    17 year 2003, we would not know what our early
    18 reduction credits were until May of 2004, which
    19 is right at the beginning of that ozone season.
    20 So really although they might provide a little
    21 buffer in terms of tons, we would not be able to
    22 count on them for how we were going to manage
    23 compliance in the year 2004. We believe that
    24 since early reduction credits are based on
    L.A. REPORTING (312) 419-9292
    48
    1 continuous emission monitoring information that
    2 the Agency will have by the end of October of
    3 the year in which they are earned, we would
    4 really ask the Board to accelerate the schedule
    5 in terms of when they would issue early
    6 reduction credits.
    7 This is also another reason why we

    8 believe early reduction credits should remain in
    9 the years 2001 and 2002 because that will give
    10 us some certainty as to how many credits we have
    11 for compliance in the 2004 ozone season. It
    12 will at least give us a year's worth of time to
    13 plan on what level of control we're going to
    14 need for that particular season.
    15 With that, I'd just like to say that
    16 we appreciate the opportunity to provide these
    17 comments today. I'd be happy to address any
    18 questions you might have.
    19 HEARING OFFICER GLENN: Thank you,
    20 Mr. Menne. Do we have questions from the
    21 Board?
    22 BOARD MEMBER FLEMAL: Perhaps, you could
    23 clarify for me just a little bit your position
    24 with respect to the .25 rule.
    L.A. REPORTING (312) 419-9292
    49
    1 My understanding is that you believe
    2 that the .25 rule would be adequate to meet our
    3 requirements to come into compliance with the
    4 national ambient air quality standards; is that
    5 correct?
    6 MR. MENNE: That's correct.

    7 BOARD MEMBER FLEMAL: And that if that
    8 was the only requirement before us, what we
    9 ought to be entertaining is just the .25 rule
    10 and nothing more stringent?
    11 MR. MENNE: That's correct.
    12 BOARD MEMBER FLEMAL: However, we do have
    13 something else before us, and that's Part 96,
    14 the NOx SIP Call, and Section 9.9 of the
    15 Environmental Protection Act requires us to
    16 adopt a trading program, which is also Part 96.
    17 MR. MENNE: That's correct.
    18 BOARD MEMBER FLEMAL: If, in fact, those
    19 latter requirements remain before us, then is
    20 there any utility to be entertaining .25 at
    21 all?
    22 MR. MENNE: First of all, let me say that
    23 under the Clean Air Act, had the NOx SIP call
    24 Process worked the way we believe it should have
    L.A. REPORTING (312) 419-9292
    50
    1 under the Clean Air Act, states should have been
    2 allowed to develop their own plans to address
    3 the transport issue, which I think is the Part
    4 96. It's not only nonattainment. It's the
    5 transport issue.

    6 We believe the .25 rule would have
    7 satisfied the requirements under the Clean Air
    8 Act from both an air quality standpoint and a
    9 legal standpoint because the 96 rules were
    10 basically being forced upon the states and
    11 saying that if you don't do this, we're going to
    12 issue a federal implementation permit, then we
    13 have to agree with this rule, and I should say
    14 at the outset that we support the rule the way
    15 it has been developed from the standpoint that
    16 we have to meet a .15 cap and trade program.
    17 You ask why it should be entertained
    18 anyway, and I still think that there is some
    19 chance that things will happen at the federal
    20 level and the Part 96 rule will be challenged.
    21 It may be thrown out. Parts of them may
    22 change. If that happens under the state
    23 legislation, as I understand it, if other states
    24 do not come in full compliance with the SIP
    L.A. REPORTING (312) 419-9292
    51
    1 Call, that would prohibit the state of Illinois
    2 from doing the same thing, as I understand it.
    3 So what we believe is that we should
    4 have a .25 rule in place so we have something to

    5 make sure that we address the attainment and
    6 standard in the St. Louis and Chicago area
    7 and have a fall-back position for the transport
    8 issue as well.
    9 BOARD MEMBER FLEMAL: Should we adopt,
    10 though, a transport program, as you put it, a
    11 Part 96 program, even though there are these
    12 uncertainties at the federal and maybe state
    13 level as well?
    14 MR. MENNE: Are you asking that we try to
    15 make the 25 rule also presumed to be the
    16 attainment -- part of the attainment for the
    17 Chicago area and the transport issue as well as
    18 attainment for --
    19 BOARD MEMBER FLEMAL: I'm wondering what
    20 your perspective I guess on that would be. I
    21 think I know the answer, but let's put it on the
    22 record.
    23 MR. MENNE: I think it would be nice to
    24 have that record. I'm not sure in the time
    L.A. REPORTING (312) 419-9292
    52
    1 frame that we have to deal with trying to get
    2 that rule in that you can do all the modeling
    3 studies and demonstrations that's necessary to

    4 do that. A lot of that work was ongoing, but I
    5 don't know where that stands.
    6 I think once the court upheld the
    7 SIP Call, I think a lot of the modeling that was
    8 being done in the Midwest on the .25 control
    9 strategies may have been delayed indefinitely or
    10 some of it may be going on. I'm not sure.
    11 You have to make a number of other
    12 demonstrations to make the case for that rule
    13 addressing those other issues, and while that's
    14 ongoing, I don't know if it can be done in time
    15 to address the time requirements in the SIP Call
    16 and the need to get a .25 rule in by 2004.
    17 BOARD MEMBER FLEMAL: I want to ask Mr.
    18 Menne about another subject matter. Is there
    19 anybody who wants to follow up on that?
    20 It seems to me that if we're going
    21 to have a trading program at all, a functional
    22 trading program as opposed maybe to something
    23 that's just on paper, you have to have both a
    24 supply and demand. I think we're hearing
    L.A. REPORTING (312) 419-9292
    53
    1 abundantly that there's going to be a big demand
    2 for allowances from your perspective.

    3 Will there be a supply for
    4 allowances over this next decade if we put in
    5 this program?
    6 MR. MENNE: Yes, there will be. For one
    7 thing, utility companies are fairly notorious
    8 for overcompliance, and they do that for obvious
    9 reasons, but when you get down to a certain
    10 level, particularly with the program that's
    11 established here, a .15 cap and trade, the only
    12 way to get down there on most -- I should say on
    13 several of the existing generating units, you're
    14 going to have to apply certain expensive control
    15 technologies. The one that's out there that's
    16 most selected is catalytic reduction.
    17 If you apply that technology, you're
    18 going to overcomply with these regulations. If
    19 you do that, you're going to have excess tons
    20 available. I should also say that any other
    21 state, as I understand it, any other state that
    22 also adopts a compliance SIP Call rule, we will
    23 be allowed to trade with them, and so there will
    24 be a market that opens up across numerous states
    L.A. REPORTING (312) 419-9292
    54
    1 that they will be able to get their tons from.

    2 BOARD MEMBER FLEMAL: Do you see that
    3 there are likely to be states that will be
    4 supply states and demand -- others that will be
    5 demand states just because of the regulatory
    6 structure that we're dealing with?
    7 MR. MENNE: That's possible. It's really
    8 hard to predict because we're going into new
    9 territory here because of the stringency of the
    10 standard. It really is going to drive people to
    11 go to very low levels on existing units, but I
    12 am confident that -- you know, portions of this
    13 program have already been put in place in the
    14 northeast.
    15 There is a market that has developed
    16 there. There will be a market that will develop
    17 in this case as well. It will happen simply
    18 because of the need to overcomply with the
    19 regulations for some certainty, and, as I say,
    20 as you get down to lower levels, that will
    21 create excess tons for others to purchase.
    22 Our company is going to be on both
    23 sides of this equation because we have quite a
    24 few new units coming in as well as a lot of
    L.A. REPORTING (312) 419-9292
    55

    1 existing units.
    2 MR. RAO: I have a couple of questions
    3 regarding the cost impact that you discussed in
    4 your prefiled testimony.
    5 This $130,000,000 cost figure that
    6 you present, is that for all your existing and
    7 new proposed facilities in Illinois?
    8 MR. MENNE: These are retrofit costs for
    9 our existing units. The new units are basically
    10 operating at pretty much the best available
    11 technology now. We would not envision having to
    12 do more on those other than somehow limit the
    13 operation of those units.
    14 MR. RAO: Do you have some kind of a
    15 break down of the cost of how you arrive at this
    16 130,000,000 dollar figure?
    17 MR. MENNE: Yeah. We can provide that.
    18 Basically, the 30 million is broken up into
    19 multiple projects over multiple years as opposed
    20 to the existing generating units. The
    21 $100,000,000, which is the bulk of it, is for
    22 selective catalytic reduction on two units.
    23 Now, these are fairly firm costs. Those are
    24 costs that come from actual bids from suppliers.
    L.A. REPORTING (312) 419-9292
    56

    1 MR. RAO: If you have, you know, that
    2 information, that could helpful, and if you can
    3 provide that information to the Board.
    4 And, also, you referenced to a study
    5 performed by H. Zinder & Associates in your
    6 prefiled testimony?
    7 MR. MENNE: Yes.
    8 MR. RAO: And you indicate that this
    9 report would be released shortly?
    10 MR. MENNE: Yes.
    11 MR. RAO: Do you have any idea when that
    12 report is going to come out?
    13 MR. MENNE: Well, we hope it will be
    14 completed before the filing date of comments
    15 closes for this hearing. We would be happy to
    16 provide that.
    17 MR. RAO: Thank you.
    18 MR. STERNSTEIN: I have one minor point,
    19 Mr. Menne. You earlier testified that, as
    20 Mr. Rao was saying, there being an extra
    21 $100,000,000 cost to reduce emissions under, I
    22 believe, it was .15 standard that the Agency is
    23 proposing, and how many extra tons would that be
    24 of emissions reductions?
    L.A. REPORTING (312) 419-9292

    57
    1 MR. MENNE: I believe we came up with a
    2 figure of 2800 tons.
    3 MR. STERNSTEIN: It's 2800 tons. Okay.
    4 I just wanted to clarify that. Thank you.
    5 HEARING OFFICER GLENN: Are there any
    6 further questions from the Board?
    7 MS. McFAWN: You made a statement in your
    8 testimony that the approach concerning the 0.25
    9 rule would require existing EGUs to reduce their
    10 NOx to 40 to 75 percent --
    11 MR. MENNE: That's correct.
    12 MS. McFAWN: -- below the current, and
    13 then you say already reduced?
    14 MR. MENNE: That's correct.
    15 MS. McFAWN: Why were those already
    16 reduced?
    17 MR. MENNE: They're already reduced
    18 because of the NOx control requirements under
    19 the Federal Acid Rain program.
    20 MS. McFAWN: Thank you.
    21 HEARING OFFICER GLENN: Does the Agency
    22 have any questions?
    23 MS. KROACK: Yes. We have a number of
    24 questions. Thank you. Good morning, Mr. Menne.
    L.A. REPORTING (312) 419-9292

    58
    1 You made a number of statements in
    2 your prefiled testimony here today about 0.25
    3 pounds of NOx per Btu as being sufficient to
    4 demonstrate attainment for the Lake Michigan
    5 area.
    6 Can you tell me what the basis for
    7 those statements are?
    8 MR. MENNE: The basis for that statement,
    9 really, I believe it was a statement that your
    10 office made. We're not suggesting that that
    11 demonstration has been made. From what we
    12 understand, the -- I believe it was in
    13 Mr. Kaleel's testimony the improvements between
    14 a .25 rule and a .15 rule in the Chicago area is
    15 on the order of one to three parts per million.
    16 I believe that, from what I
    17 understand of the way the modeling has come out,
    18 we're still right on the edge whether or not the
    19 attainment can be demonstrated in Chicago within
    20 the 25 standard. My understanding is part of my
    21 staff has worked very closely with the Agency
    22 and LADCO and other groups in doing modeling
    23 work on the Lake Michigan study, and my
    24 understanding is that a demonstration could be

    L.A. REPORTING (312) 419-9292
    59
    1 made possibly using an alternative model.
    2 There are two acceptable models that
    3 the EPA will allow in making attainment
    4 demonstrations. Additional refinements and
    5 adjustments to existing modeling work may erase
    6 that one or two parts per million to make it
    7 attainable. That's the basis of my statement.
    8 I don't know that we said that, in fact, that it
    9 would make it, but I believe we said it could
    10 make it.
    11 MS. KROACK: Do you know that attainment
    12 modeling is still going on in each of the
    13 individual jurisdictions in the Lake Michigan
    14 region?
    15 MR. MENNE: Yes.
    16 MS. KROACK: And did you know that the
    17 Agency itself is conducting additional
    18 modeling?
    19 MR. MENNE: Yes.
    20 MS. KROACK: And did you know that part
    21 of that is to help for additional emissions from
    22 NOx emissions from the so-called peaker units
    23 and for other adjustments, such as mobile
    24 emissions?

    L.A. REPORTING (312) 419-9292
    60
    1 MR. MENNE: Yes.
    2 MS. KROACK: Back to your testimony on
    3 costs for a minute, just a couple of questions.
    4 When you evaluated the cost per ton
    5 of NOx removed, did you use the same basis as
    6 USEPA used in the NOx SIP Call for assessing the
    7 cost, overall cost, of the NOx SIP Call?
    8 MR. MENNE: We tried to. I'm not sure if
    9 we used the exact formula that they did or not.
    10 I believe we attempted to use the same
    11 depreciation over, I think it was a 15-year
    12 basis, that we based those costs on, annualized
    13 costs over 15 years.
    14 MS. KROACK: So did you look at emissions
    15 from the base 2007 emissions to the expected
    16 reductions from the NOx SIP Call to calculate
    17 cost effect based on tonnage reduction from that
    18 2007 base to the NOx SIP Call base?
    19 MR. MENNE: By the 2007 base, you mean
    20 uncontrolled?
    21 MS. KROACK: Uncontrolled with growth,
    22 growth factor applied.
    23 MR. MENNE: Yes. I believe that's the

    24 way we kept the cost was based on what was
    L.A. REPORTING (312) 419-9292
    61
    1 assumed in that baseline in terms of controls
    2 already being on to some extent, but it's
    3 uncontrolled, that baseline, to the NOx SIP
    4 Call.
    5 The marginal cost I'm talking about
    6 in my testimony, I'm talking a marginal
    7 reduction cost of 8200 tons. That is the
    8 difference between .25 and the SIP Call.
    9 MS. KROACK: Thank you for clarifying
    10 that. I think I have one more question. Give
    11 me a moment here.
    12 The next question I have is you made
    13 a statement here today about the 0.25 pounds per
    14 NOx emission rate being sufficient to address
    15 transport in the region covered by NOx SIP Call.
    16 Can you tell me what the basis for
    17 that statement is?
    18 MR. MENNE: The basis for that statement
    19 is modeling work that has been done by the
    20 Midwest Ozone Group and their consultants.
    21 MS. KROACK: So that actually was
    22 modeling?

    23 MR. MENNE: Right.
    24 MS. KROACK: Okay. Thank you.
    L.A. REPORTING (312) 419-9292
    62
    1 HEARING OFFICER GLENN: Does anyone else
    2 have any questions of Mr. Menne? Yes, Mr.
    3 Urbaszewski.
    4 MR. URBASZEWSKI: Mr. Menne, is LaGrange
    5 Power an Ameren Company?
    6 MR. MENNE: Yes, it is.
    7 MR. URBASZEWSKI: I believe Ameren is in
    8 the process of switching that unit from coal to
    9 gas-fired generation, correct?
    10 MR. MENNE: That's correct.
    11 MR. URBASZEWSKI: And under the rules,
    12 you view that as not a shutdown of the unit, but
    13 a control technology?
    14 MR. MENNE: It is a repowering of the
    15 unit.
    16 MR. URBASZEWSKI: Repowering?
    17 MR. MENNE: Yes.
    18 MR. URBASZEWSKI: However, you are going
    19 to be getting an allocation for that facility
    20 based on coal generation, correct?
    21 MR. MENNE: Initially, I would assume

    22 that's the way it would work.
    23 MR. URBASZEWSKI: However, it will
    24 operate under gas and needing far fewer NOx
    L.A. REPORTING (312) 419-9292
    63
    1 allocations?
    2 MR. MENNE: Under the flex provisions, it
    3 would eventually get the amount of heat input
    4 that goes into that unit.
    5 MR. URBASZEWSKI: Thank you.
    6 HEARING OFFICER GLENN: Does anyone else
    7 have questions this morning of Mr. Menne? All
    8 right. Seeing there are no more questions
    9 Mr. Menne, thank you very much for your time
    10 this morning.
    11 Let's go off the record for just a
    12 few minutes, please.
    13 (Discussion had
    14 off the record.)
    15 HEARING OFFICER GLENN: We're going to
    16 take a ten-minute break. If everyone would
    17 please return at 11:00 o'clock. Thank you.
    18 (Break taken.)
    19 HEARING OFFICER GLENN: It is 11:10. We
    20 are back on the record, and the Agency would

    21 like to present a motion to amend. So what I
    22 would like to do at this point is suspend the
    23 testimony for a little while and give the Agency
    24 an opportunity to present their motion, walk us
    L.A. REPORTING (312) 419-9292
    64
    1 through it, and then take questions on the
    2 motion, and then we will resume testimony.
    3 If the time comes that we need to
    4 break for lunch, we will do that, and without
    5 further ado, Ms. Kroack, would you like to --
    6 MS. KROACK: Actually, Ms. Herst will
    7 submit it since she was the drafter.
    8 HEARING OFFICER GLENN: Great. Ms.
    9 Herst, would you like to present your motion to
    10 amend?
    11 MS. HERST: We would like to submit this
    12 motion to amend as whatever exhibit it comes out
    13 to be.
    14 HEARING OFFICER GLENN: I have a copy
    15 here. We will admit it as Exhibit No. 33.
    16 (Exhibit No. 33 marked
    17 for identification,
    18 9-26-00.)
    19 HEARING OFFICER GLENN: Did you have

    20 enough copies of the motion to amend to give to
    21 the audience today?
    22 MS. KROACK: Does anybody need a copy of
    23 the motion to amend?
    24 HEARING OFFICER GLENN: If we need more
    L.A. REPORTING (312) 419-9292
    65
    1 copies, we'll get them made. Are there enough
    2 copies of the motion, or do we need to make
    3 more? All right.
    4 Ms. Herst?
    5 MS. KROACK: Actually, I'll go through
    6 it. Ms. Herst is the attorney of record on the
    7 motion. So I felt she should submit it.
    8 I think the best way to do this, to
    9 go through this, is to go through the attachment
    10 B, which is in the back of the motion. When we
    11 put the motion together, we broke it down to
    12 changes we were making in response to the
    13 court's August 30th, 2000, order in the NOx SIP
    14 Call litigation. The next number of changes
    15 were changes that we were making to respond to
    16 USEPA's conditional approval published in the
    17 Federal Register on March -- it was -- the
    18 proposed conditional approval published at

    19 volume 65 of the Federal Register, page 52967 on
    20 August 31st, 2000, and then there had been some
    21 additional comments we had received from
    22 representatives of the electrical generating
    23 units here today on minor language changes that
    24 we agreed to make.
    L.A. REPORTING (312) 419-9292
    66
    1 So rather than breaking it down that
    2 way and skipping through the rule, I'll just
    3 start what the attachment. We're proposing to
    4 amend Sections 211.1320 and 211.1324 to add the
    5 language allocation of allowances as described
    6 in as you can see in the underlined language.
    7 Just to denote that, for the
    8 purposes of commence commercial operation and
    9 commence operation, those terms, as applied to
    10 part 217, deal with allocation of allowances,
    11 and this was a comment of Ameren through their
    12 attorney, Mr. Rieser. Section 211.1515, the
    13 change there is the change necessitated by the
    14 court's ruling denoting that in the 2004 control
    15 period, it's a partial control period beginning
    16 on May 31st rather than May 1st.
    17 The next change, it's Part 217,

    18 217.750, purpose. Again, the change there is
    19 adding the language to reflect the 2004 control
    20 period as a partial control period. 217.736
    21 compliance requirements, we make a change in
    22 Subsection D, as in dog, (3), again, the
    23 language is to denote the change in the start of
    24 this program from May 1st, 2003, to May 31st,
    L.A. REPORTING (312) 419-9292
    67
    1 2004.
    2 The next change we make in that
    3 section is Subsection F. We had it broken into
    4 Subsections F(5)(a) and F (5)(b), and Mr. Rieser
    5 pointed out to us that the owner or the operator
    6 of the budget electrical generating unit has
    7 excess emissions is the one that's subject to
    8 the fine rather than the account
    9 representative. It was a drafting error. We
    10 broke that section into two sections, Subsection
    11 F(5) and Subsection F(6) to the account
    12 representative's responsibility is to surrender
    13 allowances and the owner/operator is the
    14 responsible party for fines, penalties, or other
    15 assessments.
    16 Section 217.758, permitting

    17 requirements, these changes, again, are tied to
    18 the date of the NOx SIP Call moving them forward
    19 one year as the NOx program moved forward one
    20 year. We didn't attempt to account for any
    21 partial adjustments making the rule too
    22 complicated and only applicable for one year.
    23 So we moved those dates from 2002 to 2003, and
    24 that would be in Subsections A(4), A(5), and
    L.A. REPORTING (312) 419-9292
    68
    1 A(6) in section 758.
    2 A comment in 217.758, Subsection (3)
    3 was a change we made based on Mr. Rieser's
    4 request stating basically how the permit --
    5 budget permit works in that it's folded into an
    6 existing permit, federally enforceable permit,
    7 for the unit if one exists already. It was
    8 clarifying language.
    9 Section 217.760, NOx trading budget,
    10 we made changes in Subsections A(1) and A(2) to
    11 change the dates -- to slide the dates by one
    12 year based on the court's order. Subsection
    13 217.760(b), we changed the Agency may to the
    14 Agency shall based on a comment of Mr. Rieser on
    15 behalf of Ameren, and this is the language that

    16 requires us to adjust the budget available for
    17 allocation for units opting into the program.
    18 217.764, we made changes in
    19 subsections, or proposing changes to be more
    20 accurate, Subsections A, B, C, D, E, and F to,
    21 again, slide the dates one year to reflect the
    22 change of the court in the NOx SIP Call
    23 implementation date, and I don't intend to go
    24 through those one by one. It's self-explanatory
    L.A. REPORTING (312) 419-9292
    69
    1 I think.
    2 217.768 is the new source set-asides
    3 for new budget EGUs. We are proposing a change
    4 to a number of subsections here. Again, these
    5 changes are to reflect the slide of the dates
    6 from implementation of the NOx SIP Call based on
    7 court order, and these changes appear in
    8 Subsections B, C, F, G, H, I, J, K, and L.
    9 Section 217.770 is the early reduction credits
    10 for budget electrical generating units. When we
    11 looked at this section, we weren't -- it wasn't
    12 clear to us what USEPA was going to do with the
    13 early reduction credits portion of the NOx SIP
    14 Call, whether they will slide the dates that

    15 allowances may be earned to add years to allow
    16 2003 to be an additional year which you may earn
    17 early reduction credits or whether they'll keep
    18 the same two years or whether they'll make it
    19 instead of '01, '02, and '03, it will be '02 and
    20 '03.
    21 We also weren't clear what dates
    22 they would require that those early reduction
    23 credits be used, whether it would remain '04 or
    24 whether they would add '05. Obviously, '03
    L.A. REPORTING (312) 419-9292
    70
    1 doesn't work because the program isn't in
    2 effect. Based on that and the comments from the
    3 electrical generating units in our last meeting
    4 following the issuance of this order, we
    5 proposed to do the following: We are going to
    6 allow early reduction credits to be earned in
    7 '01, '02, and '03 to be used in '04, and we've
    8 added language, where later control periods
    9 authorized by USEPA, which we hope will allow us
    10 to allow the EGUs to use those early reduction
    11 credits in later years if USEPA so authorizes.
    12 For reductions in '03, we are
    13 allowing reductions to be earned in '03 only if

    14 the compliance supplement pool set aside for '01
    15 isn't fully distributed, and the reason for that
    16 is we are concerned that our SIP revision may
    17 not be approved by USEPA. If it is not, the NOx
    18 SIP Call currently provides that if your SIP
    19 isn't approved, you may not distribute early
    20 reduction credits prior to that date. So we are
    21 concerned that that might happen. We also
    22 wanted to provide the flexibility that it they
    23 weren't used in -- weren't earned
    24 in '01 or '02, they could be earned in '03 as
    L.A. REPORTING (312) 419-9292
    71
    1 well.
    2 No. If USEPA does not approve it by
    3 May 1st -- our SIP revision by May 1st of '01
    4 and we wanted to slide the dates, early
    5 reduction credits could be used for two years,
    6 and those are the reasons that we made the
    7 changes in Subsection (2), and it shows that
    8 early reduction credits can be earned over three
    9 years, and Subsection F(2)(a), it says if USEPA
    10 has approved this subpart as a SIP revision, not
    11 more than one-half the total early reduction
    12 credit allowances can be earned, the reductions

    13 made in the control period 2001, and, B, not
    14 more than one-half of the total early reduction
    15 credit allowances for reductions made in the
    16 control period 2002 and, C, any early reduction
    17 allowances not allocated pursuant to the
    18 Subsections F(2)(a) or (b) of the section
    19 reductions made in the control period 2003.
    20 In Subsection E, going back one, we,
    21 again, provide for the use of the early
    22 reduction credits for later years if USEPA
    23 permits this in any rulemaking or guidance. In
    24 G, we had concerns that -- concern was expressed
    L.A. REPORTING (312) 419-9292
    72
    1 by Ameren, among others, that the date by which
    2 the Agency informed the electrical generating
    3 units whether they were getting ERCs and how
    4 many they would be getting was too late. So we
    5 moved that date from May to March, and we added
    6 Subsection G(3) to allow for any early reduction
    7 credits that are earned in 2003, and H and I,
    8 again, reflect the movement of the NOx SIP Call
    9 implementation date by one year, and I also
    10 reflect when early reduction allowances may be
    11 used allows for additional time as USEPA might

    12 authorize, and then the last changes that we're
    13 proposing are in 217.782, and this is allowance
    14 allocations to budget opt in units. We are
    15 adding Subsection A(6) to provide that sources
    16 that may opt in may not be any unit located at a
    17 source listed in Appendix D of this part.
    18 Appendix D of this part, as you may
    19 recall, are the nonelectrical generating units
    20 which will be subject to a similar rulemaking in
    21 a future proceeding, and for the purposes of
    22 integrity of their different allowance
    23 allocation pools, we felt that we need to make
    24 this language clear that they could not opt in
    L.A. REPORTING (312) 419-9292
    73
    1 to Subpart W, but had to opt instead to Subpart,
    2 to be proposed, U, and the last change in here,
    3 217.782(b)(2)(b) of the language change was
    4 based on a comment by USEPA stating that we
    5 would allow -- allocate allowances to the budget
    6 opt in unit by multiplying it by the lesser of
    7 the unit's baseline NOx emission rate determined
    8 pursuant to Section 217.776(c) or the lowest NOx
    9 emissions limitation applicable to that unit for
    10 the year of the control period in which

    11 allowance allocations are given as opposed to
    12 the control period a year prior, and this was a
    13 USEPA approvability comment, and we felt it
    14 appropriate to suggest that change today.
    15 I believe I've covered them, and I
    16 am more than happy -- I will provide various
    17 Agency people to answer any questions you might
    18 have on the proposed changes.
    19 HEARING OFFICER GLENN: Thank you,
    20 Ms. Kroack. Do any members of the Board have
    21 questions of anything in the motion? Let's open
    22 it up to the public. Does anyone in attendance
    23 today have any specific questions? Let's go
    24 with Mr. Rieser and then we'll go to Mr.
    L.A. REPORTING (312) 419-9292
    74
    1 Urbaszewski.
    2 MR. RIESER: Thank you, Madam Hearing
    3 Officer. Looking at 217.756(f), page two of the
    4 attachment you modified the original F(5), F(5)
    5 and F(6), but F(6) still has the -- states that
    6 the owner/operator of the budget EGU shall pay
    7 any fine. I think we had suggested that the
    8 shall pay suggested that there was a regulatory
    9 requirement that any fine levied be paid and

    10 that would be both a regulatory requirement and
    11 a permit requirement since I think these things
    12 are also incorporated into the permit.
    13 I had suggested language that would
    14 say that the owner/operator would be potentially
    15 liable for a fine in addition to the removal of
    16 the surrender of the allowances, rather than
    17 there being an apparent regulatory requirement
    18 that the owner/operator must pay a fine in this
    19 circumstance.
    20 MS. KROACK: Okay. I'm not sure that we
    21 understood your comment on that level. We'll
    22 look at it and we'll address it in our written
    23 comments.
    24 MR. RIESER: Thank you very much.
    L.A. REPORTING (312) 419-9292
    75
    1 HEARING OFFICER GLENN: Mr. Urbaszewski,
    2 did you have a question?
    3 MR. URBASZEWSKI: Yes. Just for the
    4 allocations for the 2004 season, the abbreviated
    5 season taking one month of a five-month ozone
    6 season, that May 31st date, is it your
    7 understanding that all allocations are going to
    8 be given out for that four-month period rather

    9 than five-month period and, therefore, EGUs will
    10 be allowed essentially at a 20 percent increase
    11 in emissions over the control period?
    12 MR. LAWLER: This is an issue that USEPA
    13 will have to address, and at this point, we
    14 don't know how they're going to address it. We
    15 know they're considering different options, and
    16 so at this point, we've written it the way we've
    17 written it, and we're going to have to see.
    18 So it's possible. In answer to your
    19 question, it's possible that if EPA decides,
    20 because they issued the allocations, and they
    21 decide that all of those will be available in
    22 the first year, that's the way we'll view it
    23 also, but we don't know.
    24 MR. URBASZEWSKI: But it's your
    L.A. REPORTING (312) 419-9292
    76
    1 understanding that it has to be consistent
    2 across the domain because of trading reasons?
    3 MR. LAWLER: Yes.
    4 HEARING OFFICER GLENN: For the record,
    5 that was Mr. Lawler from the Agency.
    6 MR. LAWLER: Sorry.
    7 HEARING OFFICER GLENN: Are there any

    8 other questions on the motion? If after lunch
    9 people come up with more questions, we will open
    10 the floor back up so you'll have a chance to
    11 look at this more closely during the lunch
    12 hour.
    13 If there are no more questions right
    14 now on the motion, however, we will go back to
    15 hearing from our witnesses that filed prefiled
    16 testimony. Okay. Mr. Urbaszewski, would you
    17 like to present your testimony, please?
    18 MR. URBASZEWSKI: Shall I?
    19 HEARING OFFICER GLENN: Yes, please.
    20 We'll admit Mr. Urbaszewski's testimony as
    21 Exhibit No. 34.
    22 (Exhibit No. 34 marked
    23 for identification,
    24 9-26-00.)
    L.A. REPORTING (312) 419-9292
    77
    1 MR. URBASZEWSKI: My name is Brian
    2 Urbaszewski. I'm the director of environmental
    3 health programs for the American Lung
    4 Association in Metropolitan Chicago. However, I
    5 am filing joint comments on behalf of the Lung
    6 Association, the Illinois Environmental Council,

    7 the Environmental Law and Policy Center, and
    8 the Illinois Public Interest Research Group or
    9 Illinois PIRG.
    10 The American Lung Association of
    11 Metropolitan Chicago was founded in 1906 to
    12 concur tuberculosis. Today the Lung Association
    13 is committed in eliminating all respiratory
    14 diseases, including cancer, emphysema, and
    15 asthma. Our mission is to promote the
    16 importance of lung health to reduce the pain and
    17 suffering caused by lung disease, the third
    18 leading cause of death and disability in the
    19 United States. We represent more than a million
    20 people in Chicago and the suburbs who suffer
    21 from some form of lung disease, including more
    22 than 96,000 children with asthma. With that
    23 intro, I'd like to go directly to my testimony.
    24 These groups support the Illinois
    L.A. REPORTING (312) 419-9292
    78
    1 Environmental Protection Agency's proposal to
    2 implement a control level of .15 pounds per
    3 million Btu standard for electrical generation
    4 units in Illinois. We disagree with the Agency
    5 on how best to implement this NOx reduction

    6 program that incorporates this level of
    7 emissions reduction. Although the state is
    8 allowed flexibility in adopting the EPA model
    9 rule, the .15 level emission standard for EGUs
    10 must be met if the state chooses to participate
    11 in an interstate market in which tradable NOx
    12 pollution allowances can be bought and sold.
    13 The standard should not be weakened since in
    14 addition to the federal requirement for
    15 interstate ozone transport control and the
    16 threat of federal implementation plan if the
    17 state fails to meet this obligation, the
    18 proposed level of NOx reduction is also
    19 necessary, we believe, for the Agency's plan to
    20 meet one-hour ozone standard in the Chicago
    21 Ozone Nonattainment area, and I'm basing that
    22 allegation on the information that was presented
    23 by the Agency as an exhibit at the last
    24 meeting.
    L.A. REPORTING (312) 419-9292
    79
    1 In fact, several significant
    2 uncertainties provide serious doubts as to
    3 whether the proposed rule will adequately
    4 protect public health. The reasons are the

    5 Agency has miscalculated ozone precursor
    6 emission reductions in the recent past and
    7 underestimated them. Federally approved methods
    8 for calculating those ozone precursor emissions
    9 used by the Agency substantially underestimate
    10 actual real world emissions of ozone precursors,
    11 and it is unclear how a .15 pounds per million
    12 Btu rule would ensure that citizens of the state
    13 do not suffer from ozone levels deemed
    14 unhealthful for sensitive individuals.
    15 Environmentalists, therefore,
    16 propose an alternative proposal which will
    17 significantly increase the likelihood that the
    18 health of the citizens of Illinois are
    19 adequately protected. Our proposal, as set
    20 forth, go into the details, utilizes an
    21 output-based allocation and reallocation
    22 methodology that has already been proposed
    23 previously; includes a new source set-aside that
    24 will award NOx allowances sufficient to allow
    L.A. REPORTING (312) 419-9292
    80
    1 post-1995 EGUs to operate; requires an equal
    2 reallocation of NOx allowances to existing old
    3 and new EGU units based on the rate of 1.5

    4 pounds per megawatt hours; continues a new
    5 source set-aside of at least five percent of the
    6 EGU budget in the out years beyond the first
    7 reallocation period, and, five, includes an
    8 additional set-aside that awards NOx allowances
    9 to energy efficiency and renewable energy
    10 projects that displace NOx emissions from EGUs.
    11 I'll skip what I allege are miscalculations of
    12 past emissions reductions by the Agency. They
    13 have been corrected in the nine percent rate of
    14 progress plan for the Chicago Nonattainment
    15 Area, and I would also like to say that although
    16 the Lake Michigan Air Directors Consortium, the
    17 entity that models attainment strategies for
    18 Illinois and the Midwestern states also assures
    19 us that the same mistakes did not occur in the
    20 attainment model presented to the Board. I
    21 wanted to present this, however, as a fact that
    22 mistakes do happen and that mistakes
    23 overestimating emissions reductions have been
    24 made.
    L.A. REPORTING (312) 419-9292
    81
    1 In addition, shortfalls in emission
    2 reductions needed for an attainment

    3 demonstration may also be beyond the control of
    4 the Agency. Much of Illinois' emissions
    5 inventory of ozone precursors, and the Agency
    6 may be seriously underestimating the actual real
    7 world emissions from these courses even while
    8 using approved federal methodologies. I want to
    9 say on May 12th, 2000, the National Academy of
    10 Sciences issued a report, Modeling Mobile Source
    11 Emissions, which noted that the mobile model
    12 substantially underestimates VOC emissions of
    13 unburned fuel from cars and nitrogen oxides from
    14 diesel trucks. Both are major sources of ozone
    15 precursors in the Chicago area. On-road mobile
    16 sources are responsible for 37 percent of all
    17 VOC emissions and 55 percent of the NOx
    18 emissions in the Chicago nonattainment area
    19 according to the Agency.
    20 The likelihood that emissions
    21 reductions have been underestimated from mobile
    22 sources makes a .15 pound per million Btu NOx
    23 rule or a 1.5 pounds per megawatt hour NOx rule,
    24 all the more important to ensure that the
    L.A. REPORTING (312) 419-9292
    82
    1 Chicago Ozone Nonattainment Area meets the

    2 one-hour standard by 2007 attainment deadline.
    3 Illinois was also required to submit
    4 an attainment plan for meeting the one-hour
    5 standard back in 1994 and this plan is still not
    6 in place, but we hope it will be in by the end
    7 of the year. To the state's credit, Illinois
    8 EPA was a leader in the Ozone Transport
    9 Assessment Group's, OTAG's, search for a
    10 regional approach to the ozone problem, and this
    11 development led to the NOx SIP Call from USEPA.
    12 Yet, even if the Agency believes the
    13 reductions required by the NOx SIP Call are
    14 sufficient in scope to bring the Chicago
    15 Nonattainment Area into attainment with the
    16 one-hour standard, significant health problems
    17 will persist due to unhealthful ozone levels in
    18 the region.
    19 Recent medical studies have shown
    20 that ground-level ozone is even more of a
    21 persistent and damaging phenomena than
    22 previously thought, and this knowledge led to
    23 the more protective eight-hour National Ambient
    24 Air Quality standard promulgated by USEPA in
    L.A. REPORTING (312) 419-9292
    83

    1 1997.
    2 In addition, in 1999, the USEPA
    3 chose the eight-hour concentration level of
    4 ozone corresponding to the eight-hour ozone
    5 National Ambient Air Quality Standard as, quote,
    6 unhealthy for sensitive populations in its use
    7 in the Air Quality Index. The AQI, or Air
    8 Quality Index, is used nationally to communicate
    9 air quality to the general public, and it's
    10 governed by Section 319 of the federal Clean Air
    11 Act, which requires USEPA to establish this
    12 uniform Air Quality Index. This requirement is
    13 independent of the statutory provisions
    14 governing establishment and revision of the
    15 National Ambient Air Quality Standards.
    16 However, USEPA noted in using this level to
    17 provide information to the public on air quality
    18 and health that the scientific record and
    19 conclusions underlying studies that examined the
    20 health impacts of ozone are more than sufficient
    21 as a basis for decisions on the levels at which
    22 the public should be notified about health risks
    23 associated with daily air quality.
    24 So even though health warnings are
    L.A. REPORTING (312) 419-9292
    84

    1 issued on days when the eight-hour ozone
    2 concentration reaches levels unhealthy for
    3 sensitive groups, it is unclear how much
    4 improvement the .15 pounds per million Btu
    5 standard proposed by the Agency for EGUs will
    6 provide in lowering these eight-hour ozone
    7 levels. As the Agency stated in the first
    8 hearing on this matter, the Lake Michigan region
    9 endured 36 days in 1999 alone when the ambient
    10 ozone levels exceeded ozone levels deemed
    11 unhealthy for sensitive groups.
    12 In fact, based on medical and
    13 epidemiological research that documents health
    14 effects related to ozone exposure and using
    15 actual 1997 ambient ozone measurements, a study
    16 has been done that estimates the impact of ozone
    17 levels on the populations of 37 states covered
    18 in the OTAG region, which is a larger group of
    19 states than the actual number of states that
    20 have to comply with the NOx SIP Call, but it was
    21 the original study area.
    22 The study concluded that ambient
    23 levels of ozone in Illinois were responsible for
    24 numerous health impacts, including 7,200
    L.A. REPORTING (312) 419-9292

    85
    1 emergency room visits, 2,400 hospital emissions
    2 for respiratory reasons, as well as over an
    3 additional 310,000 asthma attacks. Short-term
    4 exposure to ozone has also been linked to a
    5 variety of minor symptoms, including cough, sore
    6 throat, head cold. This study estimated that
    7 over 4,000,000 instances of such minor symptoms
    8 occur in Illinois as well.
    9 At best, the draft rule, along with
    10 subsequent rules for other NOx emission sources,
    11 coming forth from the Agency may comply with the
    12 legal requirements of the NOx SIP Call, but will
    13 still leave Illinois with air unhealthy for
    14 sensitive groups. Great uncertainty still
    15 exists whether the Agency proposed rules will
    16 meet federal requirements protect and public
    17 health in Illinois. This is true since we know
    18 actual ozone precursor emissions are
    19 underestimated and computer modeling based on
    20 those emissions inventories is being used to
    21 bolster claims of attainment with the one-hour
    22 standard. Illinois citizens face continuing
    23 health danger from ozone levels even below the
    24 one-hour National Ambient Air Quality Standard
    L.A. REPORTING (312) 419-9292

    86
    1 for ozone that has been designated unhealthy for
    2 -- has been designated as unhealthful.
    3 In short, the Agency approach is not
    4 consistent with the Illinois Constitution, which
    5 states that each person has the right to a
    6 healthful environment and that the public policy
    7 of the state and the duty of each person is to
    8 provide and maintain a healthful environment for
    9 the benefit of this future generation.
    10 Given the uncertainty, the Board
    11 must therefore decide which interested party
    12 should get the benefit of this doubt, the
    13 polluting industry which has an interest in
    14 limiting emissions controls, or the citizens of
    15 Illinois who have no choice but to breathe these
    16 emission by-products and suffer the health
    17 consequences. We believe that the public
    18 deserves the benefit of that doubt.
    19 I'd like to now go into some
    20 suggested rule changes. The methods proposed by
    21 the Agency for awarding initial NOx allowances
    22 to EGUs and the fixed-flex system which delays
    23 the full implementation of the USEPA proposed
    24 model rule trading system beyond 2011 are
    L.A. REPORTING (312) 419-9292

    87
    1 flawed, and forgive me if I'm off about a year
    2 or two. I tried to adjust my dates to account
    3 for the 2004 date that the court just came out
    4 with. Environmentalists recommend that the
    5 draft Illinois NOx reduction rule should be
    6 modified to, again, use an output-based
    7 allocation and reallocation methodology; include
    8 a new source set-aside that will award NOx
    9 allowances sufficient to allow post-1995 EGUs to
    10 be operated; require and equal reallocation of
    11 NOx allowances to existing old and new EGU units
    12 based on a rate of 1.5 pounds per megawatt
    13 output-base standard; continue the new source
    14 set-aside of at least five percent in the out
    15 years beyond the first reallocation period; and
    16 include an additional set-aside for energy
    17 efficiency and renewable energy projects.
    18 A NOx reduction rule for Illinois
    19 should create an incentive for all EGUs to
    20 produce electricity with the least amount of
    21 smog-forming or ozone forming pollution per unit
    22 of electrical power generated. Within the scope
    23 of an Illinois NOx trading program, NOx
    24 allocations should be allocated on an

    L.A. REPORTING (312) 419-9292
    88
    1 output-based measure such as pounds of NOx per
    2 megawatt hour that directly reflect the
    3 pollution efficiency of electrical generation.
    4 The states of Massachusetts, New Jersey, and
    5 Connecticut have adopted such a system and are
    6 using a rate of 1.5 pounds per megawatt hour. A
    7 modified heat-input based allocation
    8 methodology, as proposed by the Agency, awards
    9 NOx credits based simply on the amount of fuel
    10 burned and does not encourage pollution
    11 efficiency and rewards existing older and
    12 pollution inefficient generation facilities by
    13 minimizing incentives to achieve higher
    14 efficiency in generation. By higher
    15 efficiencies, I mean pollution per electricity
    16 generated.
    17 A new source set-aside should also
    18 be sufficient to provide allocations to all
    19 generators expected to be operating at the start
    20 of the program in 2004. Even though this is
    21 currently prohibited by a state law passed in
    22 1999, which limits the new source set-aside to
    23 five percent of the EGU budget, and Illinois
    24 rule should reflect the goals of the national

    L.A. REPORTING (312) 419-9292
    89
    1 USEPA model NOx reduction rule in treating both
    2 older and post-1995 generation facilities
    3 equally in any allocation and reallocation
    4 methodology. It is our contention that the
    5 Agency and the General Assembly severely
    6 underestimate the demand for new source
    7 set-aside allocations, and as structured, the
    8 five percent cap in the new source set-aside
    9 unfairly raised the operating costs of new, more
    10 pollution efficient, electrical generation units
    11 while favoring older, more polluting, pre-1995
    12 electrical generation units.
    13 After the period covered by the
    14 initial three-year allocation is complete and
    15 assuming a new source set-aside is adequate to
    16 cover the needs of all new EGUs in the first
    17 three years of the program, EGUs that operated
    18 prior to 1995 and received initial NOx
    19 allocations and the newer post-1995 EGUs should
    20 be treated equally in a reallocation methodology
    21 based on generation efficiency. We believe both
    22 subsets of the EGUs should have equal access to
    23 credits awarded.

    24 In short, both groups, pre and
    L.A. REPORTING (312) 419-9292
    90
    1 post-1995 EGUs, should receive allocations for
    2 the fourth and fifth years of the program based
    3 on the standard of 1.5 pounds per megawatt
    4 hour. If there is an oversubscription of the
    5 available allowances, they should be prorated
    6 among these EGU sources based on recent
    7 historical electrical generation.
    8 Facilities that do not operate
    9 within an allocation period and receive NOx
    10 allocations from the state for that period
    11 should not be granted allowances for subsequent
    12 periods. Initial baseline heat input for EGUs
    13 operational prior to 1995 should not be used to
    14 lock in guaranteed allocations until the eighth
    15 year of the program as the Agency has proposed.
    16 The Agency itself has noted that an allowance
    17 allocated by the Agency or by USEPA under the
    18 NOx trading program does not constitute a
    19 property right. If a facility has permanently
    20 ceased operation prior to reallocation, it does
    21 not need a NOx allocation for subsequent control
    22 periods, and gifting NOx allocations to a

    23 nonoperational or possibly even nonexistent EGU
    24 is inconsistent with the principle that the
    L.A. REPORTING (312) 419-9292
    91
    1 allocation is not a property right.
    2 We also believe that a five percent
    3 new source set-aside should be kept in the sixth
    4 year of the program. The energy efficiency and
    5 renewable energy set-aside, the Agency's draft
    6 rule also misses an exceptional opportunity to
    7 establish an energy efficiency and renewable
    8 energy set-aside, which would simultaneously
    9 reduce the costs of complying with the NOx SIP
    10 Call while providing Illinois with major
    11 economic and environmental benefits. We
    12 strongly recommend that the Board reject the
    13 Agency's shortsighted action in dismissing the
    14 need for this program and require the creation
    15 of an energy efficiency and renewable energy
    16 set-aside. The set-aside should include at
    17 least ten percent of the Illinois EGU NOx
    18 budget.
    19 As the USEPA stated in a Guidance
    20 Document describing how states could set up
    21 set-asides, states have a great opportunity to

    22 take advantage of the economic and environmental
    23 benefits of energy efficiency and renewable
    24 energy in developing a NOx transport mitigation
    L.A. REPORTING (312) 419-9292
    92
    1 strategy. By including an energy efficiency and
    2 renewable energy set-aside in a state's NOx
    3 Budget Trading Program, states can prevent
    4 growth in NOx emissions, avoid building
    5 additional generating capacity, save energy and
    6 consumer dollars, and put additional jobs and
    7 money into their local economies. This is from
    8 -- the reference is from the USEPA guidelines.
    9 USEPA succinctly stated three key
    10 reasons for a state to include an energy
    11 efficiency and renewable energy set-aside; to
    12 reduce the total economic cost of meeting the
    13 proposed NOx cap; to promote energy efficiency
    14 by accelerating the adoption of energy efficient
    15 practices and technologies; and to reduce future
    16 C02-related liabilities by recognizing the
    17 positive impacts of energy efficiency and
    18 renewable energy on carbon emissions. Such a
    19 set-aside would possibly also assist in reducing
    20 electrical demand and may reduce stress on the

    21 regional transmission and distribution system or
    22 electricity transport that would otherwise be
    23 expected to occur due to electrical load
    24 growth.
    L.A. REPORTING (312) 419-9292
    93
    1 Detailed written public comments
    2 setting forth recommendations on how Illinois
    3 should establish its set-aside will be provided
    4 in the near future by the Environmental Policy
    5 Center and will draw on two subsequent documents
    6 that the USEPA has come out with for guidance on
    7 how to design such a set-aside.
    8 Environmentalists strongly believe
    9 the above elements in an output-based rule are
    10 necessary to construct the most equitable and
    11 efficient system for improving air quality and
    12 public health in the Chicago region, while
    13 meeting the demands of the NOx SIP Call. It
    14 would be unfortunate if, due to the fast-track
    15 nature of this rulemaking, these provisions were
    16 not included in the final rule and the rule
    17 implemented -- and the rule was not implemented
    18 right the first time. If, due to lack of time
    19 under the fast-track requirements, the Board

    20 determines that it is prevented from
    21 incorporating these admittedly major
    22 restructuring elements into the final rule,
    23 there is still an opportunity for improvement in
    24 the framework the Agency has put forth as the
    L.A. REPORTING (312) 419-9292
    94
    1 proposed rule.
    2 The following describes how to move
    3 the rule towards providing the necessary public
    4 health protections: Using an input-based
    5 system, as the Agency has proposed, all EGUs
    6 should be treated equally in the NOx allocation
    7 -- the NOx allowance reallocation process.
    8 At the first reallocation for the
    9 fourth year of the program, EGUs given
    10 allocations based on pre-1995 operational status
    11 or from the new source set-aside or which were
    12 not awarded allocations because of the small
    13 size, but were forced to buy NOx credits on the
    14 open market should receive NOx allocations based
    15 solely on the recent heat input of that facility
    16 and a rate of .15 pounds per Btu. Reallocation
    17 in subsequent years should continue this
    18 methodology.

    19 The General Assembly deregulated the
    20 electricity industry in Illinois in 1997 in part
    21 to promote competition in the supply of
    22 electricity. Yet, in early 1999, the General
    23 Assembly limited the new source set-aside for
    24 the post-1995 EGUs in the NOx trading program to
    L.A. REPORTING (312) 419-9292
    95
    1 a maximum of five percent of the total EGU
    2 budget. As the Agency has noted, in recent
    3 months, it has become apparent that this is
    4 insufficient to cover the allocations needed by
    5 these new EGUs and could underestimate the
    6 actual need by more than a factor of six.
    7 Deliberately depriving the vast
    8 majority of new sources, many of which are
    9 already operating or are under construction, of
    10 NOx allocations that they will need several
    11 years in the future to put new electric
    12 providers at a competitive disadvantage. They
    13 must incur additional costs to meet more
    14 stringent environmental regulations than the
    15 older, pre-1995 generation facilities must meet,
    16 yet they are being forced to pay their direct
    17 competitors for NOx allocations they need if

    18 they wish to operate.
    19 Meanwhile, older, more polluting
    20 facilities are given credits necessary to
    21 operate at a far higher emissions. The state is
    22 operating at cross-purposes here by encouraging
    23 competitive sources of generation and cleaner
    24 sources of generation, yet installing
    L.A. REPORTING (312) 419-9292
    96
    1 competitive barriers to the new generation
    2 sources that would provide energy.
    3 Although the five percent new source
    4 set-aside maximum is written into Illinois law,
    5 the Agency still has the opportunity to operate
    6 a more equitable NOx reallocation system. The
    7 model rule would have all EGUs operating in 2004
    8 that were given allocation based on pre-1995
    9 operational status given the allocations from
    10 the new source set-aside or those facilities not
    11 awarded allocations, but which were operational
    12 and purchased NOx credits on the open market, an
    13 equitable NOx reallocation based solely on the
    14 heat input of that facility. Also, such EGUs
    15 would be awarded NOx allocations at the first
    16 reallocation period for the fourth year of the

    17 program based on their heat input times a rate
    18 Btu of .15 pounds per megawatt Btus. No dual
    19 track emissions rate structure would exist as
    20 the Agency has proposed for those EGUs in
    21 operation prior to 1995 and those which became
    22 operational after this date.
    23 If there were not enough credits to
    24 award all such EGUs under this methodology an
    L.A. REPORTING (312) 419-9292
    97
    1 amount necessary to cover emissions at those
    2 EGUs, such allocation would be prorated among
    3 these sources based on heat input. Such a
    4 system would be repeated in subsequent periods
    5 as additional new source EGUs became operational
    6 and were then added to the inventory of EGUs
    7 that would periodically receive reallocated NOx
    8 allocations.
    9 Similar to the output-based system,
    10 this model rule system also rewards generation
    11 efficiency. Awarding NOx allowances to all
    12 generators at a rate of .15 pounds per million
    13 Btus or less if allowances are prorated among an
    14 oversubscribed pool of EGUs would likely award
    15 the EGUs with the lowest NOx rates a number of

    16 allowances greater than would be needed to cover
    17 actual emission at these facilities. These
    18 extra NOx allowances, achieved simply because of
    19 such low emission rates, would provide some
    20 compensation for the expenses incurred in
    21 achieving extremely low NOx emission rates.
    22 If the Agency believes this system,
    23 suggested by the USEPA in the model rule, it too
    24 austere a program for existing, pre-1995 EGUs,
    L.A. REPORTING (312) 419-9292
    98
    1 there is still additional room for improvement
    2 over the system currently proposed by the
    3 Agency. However, it should be noted that this
    4 last proposal offer the least amount of
    5 improvement over the Agency's approach and of
    6 the three approaches listed from
    7 environmentalists as a way to create a
    8 responsible NOx EGU rule for the state, this
    9 garners the least amount of enthusiasm.
    10 As noted previously, the number of
    11 new EGUs already operating, under construction,
    12 or which have applied for a permit vastly
    13 oversubscribe the five percent new source
    14 set-aside for the first three years of the NOx

    15 program. Due to growth in the electrical
    16 generation industry, unforeseen by the Agency or
    17 the General Assembly, or even by Commonwealth
    18 Edison and spoken to this fact in Board hearings
    19 on peakers, the Board should avoid repeating the
    20 short changing of new EGUs in subsequent years.
    21 The board should ensure that in and beyond the
    22 fourth year of the program, NOx allocations
    23 adequate to cover actual emissions should be
    24 provided through the reallocation mechanism to
    L.A. REPORTING (312) 419-9292
    99
    1 new, post-1995 EGUs in operation at the start of
    2 the program. True equal allocations, which was
    3 the previous proposal, this is our second, based
    4 solely on heat input would commence at the
    5 second reallocation in the sixth of the year
    6 program.
    7 Again, the Agency has stated that
    8 the demand for NOx allocations from these new
    9 facilities now stands at approximately 11,000
    10 tons if all are constructed and operated.
    11 Although, it is unlikely all of the projects
    12 currently proposed will be built and operated as
    13 proposed today, it would be prudent to assume

    14 that over the next several years prior to the
    15 start of the program the same amount of capacity
    16 would be built, especially since demand for
    17 electrical capacity continues to rise.
    18 At present, under the provisions of
    19 the proposed rule, the Agency notes that in the
    20 fourth year of the program, 6,017 NOx allowances
    21 would be made available to new EGUs that
    22 commenced operation four years previous.
    23 However, this is still approximately half the
    24 number of allocations such new EGUs are expected
    L.A. REPORTING (312) 419-9292
    100
    1 to need to operate. In order to right the
    2 proposed inequitable distribution of credits in
    3 the initial allocation, the rule should expand
    4 the flex portion and decrease the fixed portion
    5 of the allocations for the reallocation in the
    6 fourth year of the program.
    7 Rather than the 80 percent of the
    8 initial allocation reserved for the use of older
    9 or pre-1995 EGUs in the first reallocation known
    10 as the fixed portion, this percentage should be
    11 significantly lower. If a ten percent energy
    12 efficiency and renewable energy set-aside is

    13 created and a five percent new source set-aside
    14 remains in the fourth year of the program, the
    15 remaining 85 percent of EGU allocations
    16 available should number 26,096. If the need for
    17 post-1995 EGUs that were in operation prior to
    18 the first year of the program is expected to be
    19 at least 11,000 tons, then the percentage of
    20 allowances that is reserved for pre-1995 EGUs
    21 should only be 15 percent rather than 80
    22 percent.
    23 Even if the Agency eliminates the
    24 energy efficiency and renewable energy set-aside
    L.A. REPORTING (312) 419-9292
    101
    1 and keeps the new source set-aside at two
    2 percent, the percentage of allowances that are
    3 reserved for pre-1995 EGUs should represent only
    4 63 percent of the available EGU budget. Again,
    5 this compares to 80 percent in the Agency's
    6 proposed rule.
    7 In 2009, or the sixth year of the
    8 program, EGU allocations should be based on heat
    9 input alone. This is what the USEPA model rule
    10 proposes should occur in the first reallocation
    11 period for the fourth year of the program. All

    12 EGUs should be awarded allocations based on heat
    13 input times a rate of .15 pounds per megawatt
    14 Btu. Again, if the pool is oversubscribed, such
    15 allocations should be prorated among all EGU
    16 sources based on heat input.
    17 Heat input used should closely
    18 reflect the actual heat input in that future
    19 time, not the original heat input numbers the
    20 Agency used to set the allocations for pre-1995
    21 EGUs at the start of the program. Reallocation
    22 should be tied to actual operation of the plants
    23 preceding the reallocation. If a facility has
    24 permanently ceased operation in the period prior
    L.A. REPORTING (312) 419-9292
    102
    1 to reallocation it does not need a NOx
    2 allocation for subsequent control periods.
    3 Again, presenting NOx allocations to a
    4 nonoperational or possibly even nonexistent EGU
    5 casts doubt on the claim that this allocation is
    6 not a property right.
    7 Again, this system would belatedly
    8 award facilities with low rates of NOx emissions
    9 for achieving such rates and providing
    10 electrical power to the public while imposing

    11 the least amount of pollution.
    12 The proposal put forth by the Agency
    13 indicates that Illinois is attempting to do the
    14 bare minimum in controlling levels of air
    15 pollution, rather than doing what is right and
    16 necessary to protect the health of Illinois
    17 citizens, especially young children, the
    18 elderly, and those with serious medical
    19 conditions. Even with an eventual final
    20 attainment strategy for the one-hour ozone
    21 standard based on the federal NOx SIP Call, this
    22 plan will still fail to actually get the Chicago
    23 region to a point where air quality is
    24 reasonably protective of public health. Thank
    L.A. REPORTING (312) 419-9292
    103
    1 you.
    2 HEARING OFFICER GLENN: Thank you,
    3 Mr. Urbaszewski. Do any members of the Board
    4 have any questions regarding this testimony? Do
    5 any members of the Agency have any questions of
    6 Mr. Urbaszewski?
    7 MS. KROACK: We have no questions.
    8 HEARING OFFICER GLENN: Any members of
    9 the public wish to ask Mr. Urbaszewski any

    10 questions?
    11 MS. McFAWN: Then I have some questions.
    12 HEARING OFFICER GLENN: Okay.
    13 MS. McFAWN: I thought maybe the audience
    14 would have some. I like to hear those first
    15 actually.
    16 On page seven of your prepared
    17 testimony, you talk about fixing the current
    18 Agency proposal, and you have a framework that
    19 you've described, and at paragraph 1a you talk
    20 about allocations being based solely on the
    21 recent heat input of that facility, and in your
    22 scheme, what would you consider the recent heat
    23 input?
    24 MR. URBASZEWSKI: Well, I think the way
    L.A. REPORTING (312) 419-9292
    104
    1 the Agency proposes it is that anywhere from six
    2 years previous counts as recent heat input,
    3 which would put it in 2001 through 2003. That
    4 would be acceptable to us.
    5 I think if you use 2003, four years
    6 before the start of the program, you would only
    7 get the heat input for that year. You could
    8 also average 2002 and 2003 or if you were in

    9 operation by 2001, I think you could pick the
    10 two highest heat inputs between 2001 and 2003;
    11 is that correct? So it would use the existing
    12 Agency proposal for that.
    13 MS. McFAWN: Okay. You talk about
    14 permanently closed facilities being allocated
    15 NOx allowances.
    16 Are you -- if they get that
    17 allocation, how do you see them using those --
    18 using the allocation since they are closed?
    19 MR. URBASZEWSKI: Well, we view the
    20 initial allocation process as unequal and
    21 significantly favoring the owners and operators
    22 of older coal-fired power plants as gas-fired
    23 power plants built prior to 1995. I asked that
    24 question of the gentleman from Ameren. They
    L.A. REPORTING (312) 419-9292
    105
    1 said we need as many allocations as we can get
    2 from 95 percent of the EGU budget because we're
    3 not going to be able to meet this level of .15,
    4 but yet Ameren is actually switching one of
    5 their coal plants to gas.
    6 They are getting an allocation based
    7 on their coal heat input and their NOx emission

    8 needs, but yet when the program is going to be
    9 up and running, that facility is going to be
    10 running on gas, and it's going to have far less
    11 NOx emissions. They're capturing that element
    12 and using it to cover emissions for that
    13 facility and perhaps other facilities. They may
    14 also be able to monitorize that and sell it on
    15 the open market. That's good for Ameren, but
    16 that also excludes a lot of other companies that
    17 are coming on and building cleaner facilities.
    18 MS. McFAWN: But if they make that
    19 change, they have a cleaner facility?
    20 MR. URBASZEWSKI: That's true.
    21 MS. McFAWN: So isn't that comparable to
    22 other facilities coming on line that have a
    23 cleaner facility?
    24 MR. URBASZEWSKI: It should be, but why
    L.A. REPORTING (312) 419-9292
    106
    1 should that company get allocations when another
    2 company that's building, perhaps, the same type
    3 of facility, meets the same environmental
    4 standards, the same low emission rates, not get
    5 that issue?
    6 MS. McFAWN: You talk about -- at the

    7 very conclusion, you talk about that right now,
    8 even if we were to adopt the Agency's proposal,
    9 you don't believe that we will reach attainment
    10 in Chicago; is that correct?
    11 MR. URBASZEWSKI: I don't know if we'll
    12 reach attainment in Chicago. Again, that goes
    13 back to my basic -- earlier in my testimony I
    14 say that the mobile model severely
    15 underestimates it. The National Academy of
    16 Sciences has said that the mobile model, which
    17 is a process for calculating the emissions --
    18 ozone precursor emissions from mobile sources,
    19 trucks and cars in the metropolitan area,
    20 severely underestimated what's actually coming
    21 out of those cars and trucks.
    22 That would mean that we're
    23 underestimating the ozone precursors in the
    24 region, but the mobile model output, which is
    L.A. REPORTING (312) 419-9292
    107
    1 underestimated, actually goes into the modeling
    2 that proves whether we're making attainment. My
    3 contention is is that the actual emissions are a
    4 lot higher than that model says. Therefore, the
    5 emissions total that's going into the attainment

    6 modeling is also likely higher, which would make
    7 it less likely that we would actually meet the
    8 one-hour standard.
    9 MS. McFAWN: Just give me a moment.
    10 MR. URBASZEWSKI: That's fine.
    11 MS. McFAWN: I don't know if you have any
    12 comment on this or not. One of the persons
    13 testifying, I believe, stated that there's a
    14 balancing factor from the existing EGUs in that
    15 they provide a steady source of power; whereas,
    16 peaker plants are not the base load plants and
    17 that maybe Illinois needs the existing EGUs and
    18 the structure of this trading program to favor
    19 them for that reason.
    20 Do you have any comment on that?
    21 MR. URBASZEWSKI: Well, I can't speak
    22 directly to that point, but I can say that in
    23 addition to peaking units in the various
    24 proposals, and I forget what the number is, I
    L.A. REPORTING (312) 419-9292
    108
    1 think it's up to almost 50 proposals right now,
    2 there's also a number of combined cycle units,
    3 which are used for more intermediate power
    4 generation.

    5 So it's not just peak units. There
    6 are larger units coming on line, and that would
    7 almost say that we need to give large grants of
    8 pollution emissions to plants because we're
    9 going to have an electrical reliability
    10 problem. If they don't get the credits, they
    11 would shut down. Of course, they could also buy
    12 them from cleaner generators on the open market.
    13 I can't really speak to that because
    14 I don't know enough about the electrical system
    15 reliability and what the capacity coming on line
    16 with new facilities would be relative to old
    17 facilities, and, like I said with Ameren,
    18 there's also complicated factors where older
    19 facilities are being repowered, is that the
    20 correct term, are being repowered with cleaner
    21 systems or cleaner fuels.
    22 MS. McFAWN: Thank you.
    23 HEARING OFFICER GLENN: Thank you, Mr.
    24 Urbaszewski.
    L.A. REPORTING (312) 419-9292
    109
    1 MR. MELAS: Mr. Urbaszewski, if I could
    2 boil it down to just one or two sentences, your
    3 main objective is to see that we have a system

    4 that is going to substantially reduce the NOx
    5 emissions in this area?
    6 MR. URBASZEWSKI: Correct.
    7 MR. MELAS: And one of the ways that you
    8 think that this can be accomplished is that this
    9 program should treat all of the generating units
    10 equally, whether they are pre-1995 older
    11 gas-fired or whatever, in order to increase the
    12 number of the more efficient producers? When I
    13 say efficient, meaning efficiency in terms of
    14 NOx reductions, pollution reductions?
    15 MR. URBASZEWSKI: Correct.
    16 MR. MELAS: That's all of it down into
    17 one sentence.
    18 MR. URBASZEWSKI: That is our main
    19 contention.
    20 MR. MELAS: Thank you.
    21 HEARING OFFICER GLENN: Are there any
    22 other questions from Mr. Urbaszewski? Yes, Mr.
    23 Goodwin. Would you please identify yourself for
    24 the record.
    L.A. REPORTING (312) 419-9292
    110
    1 MR. GOODWIN: Daniel Goodwin with Goodwin
    2 Environmental Consultants.

    3 If I've done my math correctly, your
    4 proposal that the allocation be done on the
    5 basis of 1.5 pounds per million Btu -- excuse
    6 me, 1.5 pounds per megawatt hour, that works out
    7 to be equivalent to the .15 pounds per million
    8 Btus for a unit that has a net heat rate of
    9 10,000 Btus per kilowatt hour.
    10 Does that sound right to you?
    11 MR. URBASZEWSKI: The engineering is a
    12 little bit beyond me. From what I understand,
    13 that is approximately correct and three states
    14 are already using this, and that is deemed
    15 acceptable by USEPA and in compliance with the
    16 NOx SIP Call.
    17 MR. GOODWIN: So the way your proposal
    18 would work is, in contrast to the Agency'S
    19 proposal, units that had a heat rate less than
    20 10,000 Btus per kilowatt hour, assuming my
    21 conversion was correct, those units would
    22 receive proportionately greater allocation, and
    23 units that had a heat rate above that number
    24 would receive proportionately lower; is that
    L.A. REPORTING (312) 419-9292
    111
    1 correct?

    2 MR. URBASZEWSKI: I really can't speak to
    3 it because I haven't done the engineering work
    4 on this. All I can say is that this has been
    5 accepted and used by other states.
    6 HEARING OFFICER GLENN: Thank you, Mr.
    7 Goodwin.
    8 MS. McFAWN: Following along that line,
    9 when you say you haven't done the engineering
    10 work, then you just accepted the number because
    11 of those states or did you have someone assist
    12 you in developing your testimony?
    13 MR. URBASZEWSKI: Because of those states
    14 using it.
    15 MS. McFAWN: Thank you.
    16 MR. URBASZEWSKI: And the fact that it's
    17 accepted by USEPA.
    18 MR. STERNSTEIN: Mr. Urbaszewski,
    19 regarding the energy efficiency and renewable
    20 energy set-aside, I'm just wondering are any of
    21 the other states pursuing the NOx SIP Call
    22 considering this agency guidance document in
    23 developing their programs?
    24 MR. URBASZEWSKI: I believe so, but I
    L.A. REPORTING (312) 419-9292
    112

    1 don't have the states with me. Mr. Dan
    2 Rosenblum from the ELPC is doing much more
    3 detailed work on this. Unfortunately, he was
    4 unavoidably not able to be here for personal
    5 reasons, but he will be submitting written
    6 testimony and comments that should address that.
    7 MR. STERNSTEIN: And, again, if this is
    8 beyond your area of expertise, we can wait for
    9 the comments, but with such a program, would
    10 that allow nonelectrical generating units to
    11 receive credits that they could trade with
    12 EGUs?
    13 I'm just picturing that an office
    14 facility, say, that reduces its -- installs,
    15 say, energy efficient lighting and is available
    16 to reduce its electricity consumption by 20 or
    17 30 percent, would that management company or
    18 that office facility actually receive credits
    19 that they would actually trade with electrical
    20 generating units?
    21 MR. URBASZEWSKI: Yes. The main idea
    22 behind the energy -- renewable energy set-aside
    23 is that these are projects that would create or
    24 save electricity and reduce the need for
    L.A. REPORTING (312) 419-9292
    113

    1 electricity from power plants that would be
    2 emitting NOx in the production of that
    3 electricity.
    4 Since the power plants are not
    5 emitting the NOx, they don't need the credit.
    6 The credit, which can be monitorized in the
    7 market, and you can sell it, should go to the
    8 people who have taken the initiative to reduce
    9 that NOx from going into the atmosphere, i.e.,
    10 the people who have installed an energy
    11 efficiency lighting system, updated
    12 air-conditioning, heating system, or have
    13 installed solar/wind generation that doesn't
    14 have emissions, but they would take that credit
    15 that this would generate and do with it as
    16 the -- they could sit on it. They could donate
    17 it. They could sell it on the open market, and
    18 the cash they would receive from the sale of
    19 that allowance would go to offset the expense
    20 they occurred in constructing the energy
    21 efficiency project or the alternative energy
    22 system.
    23 HEARING OFFICER GLENN: Are there any
    24 further questions of Mr. Urbaszewski this
    L.A. REPORTING (312) 419-9292

    114
    1 morning -- afternoon? Okay. Mr. Urbaszewski,
    2 thank you for coming.
    3 Mr. Dupuis, could I ask you to
    4 submit your prefiled testimony as an exhibit,
    5 please?
    6 MR. DUPUIS: Yes. I can make a motion to
    7 do so.
    8 HEARING OFFICER GLENN: Thank you.
    9 MR. DUPUIS: I'd also like to file this
    10 errata sheet as well.
    11 HEARING OFFICER GLENN: Do you have an
    12 extra copy of your testimony with you this
    13 morning, or shall we get one from the table?
    14 MR. DUPUIS: We can get one.
    15 HEARING OFFICER GLENN: Okay. Let me get
    16 that. I will admit Mr. Dupuis' prefiled
    17 testimony as Exhibit No. 35 and then a copy of
    18 his errata sheet as Exhibit No. 36. Just give
    19 me a moment to mark those.
    20 (Exhibit Nos. 35 and 36
    21 marked for identification,
    22 9-26-00.)
    23 HEARING OFFICER GLENN: Mr. Dupuis, I
    24 request when you return to your office that you
    L.A. REPORTING (312) 419-9292

    115
    1 submit the errata sheet also to the service list
    2 people so they're aware of the change in your
    3 testimony.
    4 MR. DUPUIS: Okay.
    5 HEARING OFFICER GLENN: Thank you. I
    6 guess we're ready to begin.
    7 MR. DUPUIS: Good afternoon. My name is
    8 Lenny Dupuis. I am manager of environmental
    9 policy for Dominion Generation. Dominion is a
    10 fully integrated, investor owned electric and
    11 gas energy provider headquartered in Richmond,
    12 Virginia, with power generating facilities
    13 located in Illinois, Virginia, West Virginia,
    14 North Carolina, Ohio, and Pennsylvania. Our
    15 corporation operates the 1200 megawatt
    16 coal-fired Kincaid generating station located in
    17 Kincaid, Illinois, and this consists of two
    18 coal-fired cyclone boilers that are identified
    19 as Subpart W Appendix F units that will be
    20 required to meet the requirements of the NOx SIP
    21 Call rule, the Subpart W rule.
    22 As you've already heard today, this
    23 SIP Call rule is potentially one of the most
    24 stringent and costly air quality regulations

    L.A. REPORTING (312) 419-9292
    116
    1 that utility generators in Illinois and
    2 elsewhere have had to face to date. The rule
    3 will require existing electric generating units
    4 in Illinois to significantly reduce ozone season
    5 NOx emissions to comply with the emission
    6 budgets or caps or caps that have been set by
    7 USEPA based on a .15 pound per million Btu limit
    8 heat input. New generation already built after
    9 the baseline year from which the emission caps
    10 are calculated as well as future planned
    11 generation in the state will also have to secure
    12 emission allowances under this cap. This means
    13 that existing base load generation that has
    14 served the energy needs of the Illinois public
    15 in the past and newer generation that will be
    16 needed to serve increasing energy demands in the
    17 future will be competing for a limited number of
    18 emission allowances for years to come.
    19 Dominion fully recognizes the
    20 pressure the state is currently facing given the
    21 deadlines imposed upon them to develop and
    22 submit a plan to address EPA's NOx SIP Call by
    23 late October of this year. We also realize the
    24 difficulty the Agency has had in developing the

    L.A. REPORTING (312) 419-9292
    117
    1 rule that would address as equitably as possible
    2 the many issues and concerns of all affected
    3 parties. Dominion commends the IEPA for its
    4 efforts over the last year in allowing affected
    5 stakeholders the opportunity to provide
    6 meaningful input through face-to-face meetings
    7 and written comment throughout the development
    8 of this Subpart W rule.
    9 There are, however, some issues
    10 associated with this rule that are of particular
    11 concern to Dominion that I'd like to address
    12 with you today. Some of these issues have
    13 already been addressed to some extent by the
    14 motion for amendment of the Subpart W rule that
    15 was recently filed by the Agency, but these
    16 issues do deal with the U.S. Court of Appeals
    17 August 30th order extending the compliance date
    18 of the NOx SIP Call, issues related to the
    19 generation and use of early reduction credits in
    20 the compliance supplement pool, issues relating
    21 to the growth factor that USEPA used in setting
    22 the NOx budget cap for electric generating units
    23 in Illinois additional allocations for existing

    24 or Appendix F sources in the Subpart W rule can
    L.A. REPORTING (312) 419-9292
    118
    1 finally be use of the Subpart W rule in state's
    2 attainment demonstration plans, and I'll address
    3 each of those issues.
    4 The Subpart W compliance date, as we
    5 heard earlier today, the Agency has filed a
    6 motion to modify its rule to reflect the
    7 extension of the SIP Call requirement from May
    8 1st, 2003, to May 31st, 2004, and Dominion
    9 supports this modification.
    10 In terms of the 2004 ozone season
    11 budget, we also heard that they intend at least
    12 at this time to allocate the full EGU NOx budget
    13 for the 2004 ozone season, and we also
    14 understand that they are awaiting some further
    15 guidance if that, indeed, comes from USEPA on
    16 that decision.
    17 However, if, for any reason, IEPA is
    18 compelled to adjust the budget to reflect a
    19 four-month ozone season instead of a full ozone
    20 season as they are proposing right now, we would
    21 urge the Agency to adequately account for
    22 intraseasonal generation and emission patterns

    23 in a reasonable manner and not simply to reduce
    24 the budget by 20 percent.
    L.A. REPORTING (312) 419-9292
    119
    1 I'd like now to address early
    2 reduction credits in the compliance supplement
    3 pool. The Subpart W rule provides the
    4 opportunity for sources to earn early reduction
    5 credits, or ERCs, from a compliance supplement
    6 pool that has been established by USEPA under
    7 the SIP Call rule by achieving emission
    8 reductions prior to the rule's prior compliance
    9 deadline. Dominion appreciates USEPA's
    10 recognition, at least to some degree, of the
    11 difficulty that utilities will face in having to
    12 retrofit a number of units in a short time frame
    13 in order to comply with the SIP Call reductions
    14 and EPA's subsequent creation of the compliance
    15 supplement pool. We further appreciate Illinois
    16 EPA's incorporation of early reduction credits
    17 and the compliance supplement pool into its
    18 Subpart W rule. Early reduction credits are
    19 good for the environment and should be
    20 encouraged, but decisions to early comply are
    21 also serious business decisions involving

    22 significant early investments in capital and
    23 labor in order to be assured the ability to
    24 compensate for unexpected delays or
    L.A. REPORTING (312) 419-9292
    120
    1 complications in installing and operating
    2 control technologies that will be needed to meet
    3 the required emission reductions.
    4 We believe that some of the
    5 provisions governing the generation and use of
    6 the early reduction credits currently embedded
    7 in EPA's SIP Call rule and in the Subpart W rule
    8 limit, to some extent, the usefulness of these
    9 credits do not provide sufficient certainty for
    10 planning purposes for which they were intended.
    11 Such restrictions could discourage source owners
    12 from installing and operating control technology
    13 earlier than required.
    14 Some of these limitations are as
    15 follows: The total number of early reduction
    16 credits that can be awarded are presently
    17 limited by the amount of available allowances
    18 under the state's compliance supplement pool,
    19 which has been set by EPA -- USEPA. In the
    20 total amount -- if the total amount of requested

    21 ERCs exceeds the total number of allowances
    22 available in the compliance supplement pool,
    23 source specific allocations of this pool will be
    24 awarded on a prorated basis. Thus, there is the
    L.A. REPORTING (312) 419-9292
    121
    1 possibility that sources will not receive full
    2 credit on a ton-for-ton basis or all of the
    3 early reductions made below the designated
    4 baseline levels.
    5 Illinois EPA intends to award half
    6 of the compliance supplement allowances for
    7 reductions made in the 2001 ozone season in the
    8 remaining half of the year 2002 ozone season.
    9 Sources must apply for these credits by November
    10 1st of the year during which the ozone season
    11 reductions are achieved. IEPA will award the
    12 early reduction credits by now March 1st of the
    13 year following the ozone season during which the
    14 reductions were achieved. While this schedule
    15 does help, to some extent, it still results in
    16 delays certainty as to the amount of ERCs that
    17 have been obtained, making it difficult to
    18 adequately incorporate the use of these credits
    19 for compliance strategy planning purposes for

    20 which the compliance supplement pool allowances
    21 were designed.
    22 Given the extension of the
    23 compliance deadline to May 31st, 2004, the use
    24 of early reduction credits is now restricted to
    L.A. REPORTING (312) 419-9292
    122
    1 just one year. The current rule retires unused
    2 credits at the end of the 2004 ozone season,
    3 although we did just hear in the motion to amend
    4 that they will consider extending that ability
    5 through the 2005 ozone season pending further
    6 guidance and approval by USEPA, and we would
    7 support that.
    8 Given the substantial cost and
    9 difficulties associated with meeting
    10 requirements of the SIP Call rule, we would urge
    11 the state to try to incorporate as much
    12 flexibility as possible into the provisions of
    13 the early reduction credit portion of the rule
    14 that will help to ease the financial burden to
    15 affected sources and provide more certainty to
    16 the process. We believe there might be such an
    17 opportunity by modifying the early reduction
    18 provisions to maximize their usefulness and

    19 provide added incentive for source owners to
    20 generate early emission reductions.
    21 First of all, given the extension of
    22 the compliance deadline for the SIP Call to May
    23 2004, the ability to generate early reduction
    24 credits should be extended through the 2003
    L.A. REPORTING (312) 419-9292
    123
    1 ozone season. We heard from their motion to
    2 amend moments ago that they do intend to do
    3 that. As it stands right now, they will be
    4 allocating emissions in 2001 and 2002, and
    5 whatever is left over, if there is anything left
    6 over, will be considered for distribution in the
    7 year 2003, and we would support this extension
    8 to the year 2003.
    9 We also urge the Agency to extend
    10 the use of the early reduction credits to at
    11 least the 2005 ozone season, which they intend
    12 that they will consider doing given the extended
    13 deadline for compliance with the SIP Call rule
    14 to May 31st, 2004. This would at least maintain
    15 status quo in the rule, which under the initial
    16 May 2003 compliance deadline allowed the use of
    17 early reduction credits for two ozone seasons

    18 beyond the compliance deadline.
    19 In its currently proposed form, the
    20 Subpart W rule incorporates the banking
    21 provisions of EPA's model rule Part 96. Under
    22 the model rule provisions, banked allowance as
    23 well as early reduction credits awarded from the
    24 compliance supplement pool are subject to a flow
    L.A. REPORTING (312) 419-9292
    124
    1 control mechanism beginning in the 2004 ozone
    2 season. Dominion believes that given the
    3 limitations already imposed upon the generation,
    4 use, and lifetime of the early reduction credits
    5 obtained from the compliance supplement pool
    6 that these early reduction credits should not be
    7 subject to additional flow control. We note
    8 that in USEPA's Part 97 rules in which they
    9 implement the Federal NOx trading program, which
    10 EPA intends to implement in states which become
    11 subject to a federal implementation plan or are
    12 subject to the Section 126 rule, EPA is not
    13 subjecting early reduction credits allocated
    14 from the compliance supplement pool to flow
    15 control and is not implementing the banking
    16 provision flow control mechanism for the first

    17 two years of the trading program until the early
    18 reduction credits have all been used or retired.
    19 Dominion urges this Board and the
    20 IEPA to consider doing the same, that is, do not
    21 subject the early reduction credits to flow
    22 control and amend the rules to delay the
    23 implementation of the flow control mechanism in
    24 the banking provisions at least until the early
    L.A. REPORTING (312) 419-9292
    125
    1 reduction credits from the compliance supplement
    2 pool have been used up or retired.
    3 We believe that USEPA would not
    4 object to this alteration of the model rule
    5 provision since the Agency itself applied this
    6 concept in its Part 97 rule. The state should
    7 consider awarding compliance supplement
    8 allowances as soon as possible following the
    9 ozone season during which the reductions are
    10 achieved. This would provide source owners more
    11 lead time as to exactly how many early reduction
    12 credits they have been allotted and would
    13 provide some additional time to incorporate this
    14 knowledge into compliance plans and schedules.
    15 There is no absolute requirement

    16 that states adopt a compliance supplement pool
    17 provision within their rules. The state could
    18 consider developing an early reduction credit
    19 program totally independent of EPA's compliance
    20 supplement pool that would not limit the number
    21 of early reduction credits that could be
    22 achieved. Removing such a limitation, while at
    23 the same time providing a more up front
    24 guarantee that early reduction credits will be
    L.A. REPORTING (312) 419-9292
    126
    1 awarded or rewarded in the form of equivalent
    2 emission credits, would greatly enhance the
    3 incentive for source owners to install and
    4 operate control technology earlier than
    5 required.
    6 I'd like now to turn to the growth
    7 issue. During the August 28th public hearing,
    8 there was mention of and several questions
    9 raised about the growth factor that USEPA
    10 assumed in Illinois to account for expected
    11 growth in electric generation over the period
    12 from the baseline year 1996 to the 2007 budget
    13 year. In my prefiled testimony, I have provided
    14 an explanation of how EPA derived these growth

    15 factors, and I'd like to take some time here
    16 just to emphasize a few key points.
    17 First, the growth factors play a
    18 significant role in the determination of the
    19 final state specific EGU NOx budgets that were
    20 set in the SIP Call rule. During the course of
    21 the SIP Call rulemaking process, the growth
    22 factor assumed by USEPA in Illinois ranged from
    23 a high of 34 percent to the current eight
    24 percent, which was used in the final NOx budget
    L.A. REPORTING (312) 419-9292
    127
    1 rule. At one time during the rulemaking
    2 process, the NOx EGU budget in Illinois was as
    3 high as 36,570 tons, a 30 percent increase over
    4 the current 32,372 tons. A 34 percent growth
    5 factor applied to the current baseline for
    6 sources in the trading budget are those that are
    7 established in Appendix F of the Subpart W rule
    8 would increase the tonnage trading budget from
    9 the current 30,701 tons to over 38,000 tons, an
    10 increase of almost 25 percent. So you can see
    11 the relative importance of this growth factor in
    12 what the final budgets in Illinois were.
    13 The eight percent growth rate

    14 assumed in Illinois over the 11-year period is
    15 simply inappropriate. In many cases, growth
    16 over the last several years has already exceeded
    17 the projected 2000 levels that EPA assumed in
    18 the NOx SIP Call. EPA produced surrogate growth
    19 rates for the 1996 through 2007 period that was
    20 based on year 2001 and year 2010
    21 projections from the integrated planning model.
    22 EPA's methodology does not adequately address
    23 growth in the earlier years of this period,
    24 mainly 1996 through 2001.
    L.A. REPORTING (312) 419-9292
    128
    1 In fact, IPM projections for year
    2 2001 and 2010 used by EPA in the IPM model to
    3 determine the growth rate exceed the 2007 levels
    4 that have been projected by the EPA in the SIP
    5 Call rule. The EPA growth factors also vary
    6 considerably from state to state ranging from an
    7 actual negative growth factor in Rhode Island to
    8 a high of 59 percent in the state of
    9 Massachusetts. The disparity in quote
    10 assumptions from state to state results in
    11 substantial differences in the amount of growth
    12 tonnage that's added on to the baseline

    13 emissions.
    14 This underestimation of growth in
    15 setting the NOx emission budgets directly
    16 affects the ultimate emission rate a given
    17 utility system will have to meet to comply with
    18 the seasonal allocations provided under the
    19 state NOx budget. For states where EPA has
    20 significantly underestimated the growth, the
    21 effective emission rate to comply with the
    22 budget will be much lower than .15 pound per
    23 million Btu. For example, at our Kincaid
    24 generating station, we will have to achieve an
    L.A. REPORTING (312) 419-9292
    129
    1 emission rate well below the .15 pound per
    2 million Btu rate that's assumed by EPA in
    3 deriving the budget in order to comply with the
    4 seasonal NOx allocations in appendix F of the
    5 Subpart W rule if these units continue to
    6 operate at levels experienced over the last
    7 several ozone seasons.
    8 We suspect and we've already heard
    9 to some degree this morning from previous
    10 testimony that other sources in Illinois will
    11 share the same thing. USEPA claims that the

    12 regional trading program will mitigate these
    13 flaws and discrepancies. However, EPA has said
    14 individual state budgets, that individual states
    15 must meet it. It did not set an overall
    16 regional 22 state budget. Therefore, EPA's
    17 methodology has subjectively set certain states
    18 as potential net buyers of allowances and other
    19 states as potential net sellers of allowances.
    20 Sources in states, such as Illinois where EPA
    21 has underestimated growth, may very well be
    22 forced to spend their money on purchasing
    23 emission allowances to comply with the NOx
    24 budget, while other states with larger growth
    L.A. REPORTING (312) 419-9292
    130
    1 rates have more flexibility for meeting the
    2 reduction requirements and for incorporating new
    3 sources into their budgets.
    4 This provides the higher growth
    5 states with an economic advantage over other
    6 states with lower growth rates, such as
    7 Illinois. Several industry groups have
    8 petitioned for review of the state specific NOx
    9 budgets that USEPA has established in the SIP
    10 Call rule in the U.S. Court of Appeals, D.C.

    11 Circuit for some of the very same reasons that
    12 I've described above.
    13 The briefing litigation schedule was
    14 recently set by the court. A decision from the
    15 court is not expected until at least the second
    16 quarter of next year at the earliest. This
    17 ongoing legal review presents the possibility
    18 that the SIP Call budgets could be rejected by
    19 the court and/or remanded back to USEPA for
    20 further consideration and review.
    21 Therefore, the total NOx budget for
    22 electric generating units referenced in the
    23 Subpart W rule of Illinois may at some point in
    24 the future need to be adjusted pending the
    L.A. REPORTING (312) 419-9292
    131
    1 outcome of this litigation. The Illinois EPA
    2 has incorporated a provision within its Subpart
    3 W rule that allows the Agency to adjust the
    4 state budget should USEPA adjust the trading
    5 budget for any reason. Dominion believes that
    6 this provision should be specifically tied to
    7 the ongoing litigation of the budget which, if
    8 successful, in our opinion, will increase the
    9 budget in Illinois.

    10 I would also note that there are
    11 some states that are considering submitting SIP
    12 Call rules requiring a cap based on the .15
    13 pound per million Btu, but with alternative
    14 budgets that will be derived from more
    15 representative growth factors in those states.
    16 I'd now like to address initial
    17 allocations for the Appendix F sources.
    18 Dominion believes that Illinois EPA should
    19 re-examine the allocations established for the
    20 Appendix F sources for the initial three-year
    21 control period. We believe that a more
    22 equitable approach would be to adopt a
    23 methodology similar to that used by USEPA in its
    24 Part 97 rule, which bases the allocations for
    L.A. REPORTING (312) 419-9292
    132
    1 each unit on the average of the two highest
    2 ozone season heat inputs over a multi-year
    3 period, adjusted by normalizing the total state
    4 EGU tonnage so obtained with the state EGU
    5 budget established by EPA in the SIP Call rule.
    6 This, in fact, is the methodology that Subpart W
    7 rule applies in subsequent allocation periods
    8 for the flex portion of the fixed/flex

    9 approach.
    10 Finally, I'd like to address the
    11 state ozone attainment demonstrations. The
    12 Agency had envisioned using the Subpart W rule
    13 as a means to achieve attainment of the National
    14 Ambient Air Quality Standard for Ozone in the
    15 Metro-East St. Louis Nonattainment Area and the
    16 Lake Michigan Chicago Nonattainment Area and has
    17 submitted the rule to USEPA for pre-approval and
    18 review prior to actual adoption by the state in
    19 support of attainment demonstration which must
    20 be submitted to USEPA by December of 2000. In
    21 that submittal, the state does commit the state
    22 to the SIP Call controls beginning in May 2003.
    23 Given the court's extension of the SIP Call
    24 compliance date to May 31st, 2004, and the fact
    L.A. REPORTING (312) 419-9292
    133
    1 that Agency modeling indicates that attainment
    2 can be achieved for the Metro-East St. Louis
    3 area with a rate base .25 pound per million Btu
    4 statewide control level, we suggest that the
    5 Subpart W rule will be removed from the
    6 attainment demonstration plans for the St. Louis
    7 and Chicago nonattainment areas at this time.

    8 The states should proceed with an
    9 attainment demonstration plan independent from
    10 the SIP Call rule and move forward with a rate
    11 base .25 pounds per million Btu control
    12 requirement for the 2003 ozone season, and I
    13 believe we heard that the state is considering
    14 taking this approach earlier this morning. This
    15 approach would adequately address the St. Louis
    16 nonattainment problem while not subjecting
    17 sources in Illinois to a more stringent level of
    18 control earlier than is required of sources in
    19 other surrounding states subject to the NOx SIP
    20 Call. This would also protect the state should
    21 a review of the NOx SIP call rule in the Supreme
    22 Court, if so granted, results in additional
    23 delay or overturning of the NOx SIP Call rule.
    24 We thank you for this opportunity to
    L.A. REPORTING (312) 419-9292
    134
    1 comment, and I would be very happy to hear any
    2 questions. Thank you.
    3 HEARING OFFICER GLENN: Thank you,
    4 Mr. Dupuis. Do any members of the Board have
    5 any questions for Mr. Dupuis? Let's go over to
    6 the Agency and see if they have any questions.

    7 MS. KROACK: We have a few for you,
    8 Mr. Dupuis.
    9 You stated in your testimony that
    10 the Subpart W rule should provide for allocation
    11 of total statewide NOx budget for EGUs in the
    12 2004 control period or 30,700 for allowances
    13 even though the control period has been
    14 shortened by 30 days.
    15 Do you understand that USEPA
    16 administers the NOx trading program?
    17 MR. DUPUIS: Yes.
    18 MS. KROACK: Do you also understand that
    19 the Agency can only allocate those allowances
    20 that USEPA gives us?
    21 MR. DUPUIS: Yes.
    22 MS. KROACK: So then if USEPA elects to
    23 decrease that budget, isn't it also true that we
    24 can only allocate to you what they give us to
    L.A. REPORTING (312) 419-9292
    135
    1 allocate to our pool of electrical generating
    2 units?
    3 MR. DUPUIS: Yes. I believe that's the
    4 case, but, again, I would hope that the Agency
    5 would make an argument that USEPA consider that

    6 in most years generation in May is lower than
    7 most of the other ozone season months and would
    8 reflect that in the allocation, and that's what
    9 we would ask.
    10 MS. KROACK: We would just like to state
    11 for the record that we understand that, and we
    12 intend to make that and other arguments to USEPA
    13 as well when the time is appropriate.
    14 The other question, you said the
    15 other states are opting into the federal trading
    16 program. I believe this is what you said in
    17 your testimony just now, and I didn't find it in
    18 your written testimony. So maybe I misheard
    19 you.
    20 But they're opting into the federal
    21 NOx trading program, but they're setting their
    22 own budgets?
    23 MR. DUPUIS: They are not opting in.
    24 They are part of the SIP Call rule. So I guess
    L.A. REPORTING (312) 419-9292
    136
    1 you could say they're going to try to opt into
    2 the trading program, but they're going to submit
    3 a different -- a different budget than USEPA.
    4 Yes. That's correct.

    5 MS. KROACK: Do you know which states
    6 these are?
    7 MR. DUPUIS: I do, but I'm not at liberty
    8 to say right now because they have not submitted
    9 the rules.
    10 MS. KROACK: So they haven't put anything
    11 out to the public?
    12 MR. DUPUIS: No, they have not.
    13 MS. KROACK: This is just internal
    14 discussions?
    15 MR. DUPUIS: This is internal
    16 discussions.
    17 MS. KROACK: Do you understand that the
    18 Federal NOx Trading Program sets requirements
    19 for opting in within Part 96 rules that it says
    20 the state must meet to opt in?
    21 MR. DUPUIS: Uh-huh.
    22 MS. KROACK: Thank you. And I just want
    23 to clarify one point. The Agency has said today
    24 that it intends next week, we hope, to submit a
    L.A. REPORTING (312) 419-9292
    137
    1 rate-based rule to address attainment, but only
    2 for the Metro-East Nonattainment Area. I just
    3 -- I know I said that, but I wanted to make

    4 that clear.
    5 HEARING OFFICER GLENN: Thank you, Ms.
    6 Kroack. Did members of the Board have
    7 questions? Any members of the public, would any
    8 of you like to ask any questions?
    9 MS. McFAWN: I do. Like I stated before,
    10 I always like to hear from the audience first
    11 because if you have a question that I have, I'm
    12 glad when it comes from the audience.
    13 In your testimony, you talked about
    14 compliance supplemental provisions, and you made
    15 a suggestion that we are to consider developing
    16 an early reduction credit program independent of
    17 EPA's CSP. Can we do that? Is that one of our
    18 discretionary approaches?
    19 MR. DUPUIS: I don't know for sure
    20 whether you can or not. I think it would have
    21 to be totally independent of the compliance
    22 supplement pool. I believe the state does have
    23 -- they have a discretion whether to accept the
    24 compliance supplement pool or not. They have
    L.A. REPORTING (312) 419-9292
    138
    1 that choice, and what I'm suggesting here is
    2 that if to provide more flexibility or

    3 assurances of early reduction credits in that
    4 they could be generated on a one-for-one basis
    5 that the state could consider having an early
    6 reduction program that is separate from the
    7 compliance supplement pool.
    8 Now, they would have to work out
    9 with USEPA a way to move those credits into the
    10 trading program. So there would have to be some
    11 discussion with USEPA as to whether or not. The
    12 other option would be to just track those
    13 separately within the state.
    14 MS. McFAWN: If we were to do that and we
    15 failed in convincing the USEPA to allow that
    16 into the CSP, can we use that then to be
    17 allocated or would the companies that had taken
    18 steps to achieve early reduction credits maybe
    19 not be able to use them in the federal trading
    20 program?
    21 MR. DUPUIS: If EPA were to come back and
    22 disapprove that option, then the state would
    23 have the option of amending its SIP in applying
    24 the compliance supplement pool. It would have
    L.A. REPORTING (312) 419-9292
    139
    1 that ability to do so.

    2 MS. McFAWN: Okay. Thank you. You said
    3 that at Kincaid you will have to achieve a
    4 level -- an emission rate much less than 0.15
    5 emission rates?
    6 MR. DUPUIS: Yes. That's correct.
    7 MS. McFAWN: We've heard from other
    8 generators, they, too, would have to.
    9 Do you think that Kincaid will be
    10 significantly less than your competitors?
    11 MR. DUPUIS: I don't know what level they
    12 would have to go down to. I do know that if we
    13 were to maintain the generation or the
    14 utilization that we have experienced in the last
    15 several ozone seasons that we would likely be
    16 down in the range somewhere around .10. I don't
    17 know how others are affected by that.
    18 MS. McFAWN: Okay. I think it was under
    19 -- in the part of your testimony where you talk
    20 about growth factors, you suggest that we should
    21 use a different period of time, is that correct,
    22 for establishing --
    23 MR. DUPUIS: No. What I was trying to
    24 indicate to you is that when USEPA tried to
    L.A. REPORTING (312) 419-9292
    140

    1 apply a growth rate, what they were seeking to
    2 do was to apply a growth factor from the
    3 baseline year, which is 1996, out to the year
    4 2007, but in order to do, they ran what they --
    5 the integrated planning model. It's a
    6 forecasting model that the Agency used, and they
    7 ran the model for two projection years 2001 and
    8 2010. Based on the modeling results from those
    9 two years, they computed a growth rate from 2001
    10 to 2010 period.
    11 They then calculated that growth
    12 rate over that nine-year period, prorated it to
    13 11 years, and then went back to the 1996
    14 baseline and used that rate to adjust 1996 up to
    15 2007. Now, our point is that they were using
    16 two projections to the future, from 2001 to
    17 2010, but nowhere is the growth from 1996 to
    18 2001 part of that assessment, and we have seen a
    19 substantial growth in the last few years, which
    20 essentially is not part of that equation.
    21 MS. McFAWN: Okay. Thank you for that
    22 clarification. I don't think I have any other
    23 questions.
    24 HEARING OFFICER GLENN: Are there any
    L.A. REPORTING (312) 419-9292
    141

    1 further questions of Mr. Dupuis this afternoon.
    2 Mr. Dupuis, thank you very much for coming and
    3 giving us your comments this afternoon.
    4 MR. DUPUIS: Thank you.
    5 HEARING OFFICER GLENN: Let's break for
    6 lunch. We will resume in an hour. It is
    7 12:45. So we will resume at 1:45 promptly. We
    8 will begin with Mr. Furstenwerth and then
    9 proceed with Mr. Miller and then we'll get
    10 Ms. Schoen sworn in and we will hear her
    11 testimony as well, and then also during the
    12 lunch hour, if any of you look at the Agency's
    13 motion and determine you have further questions,
    14 we will entertain those after lunch as well. So
    15 we will go off the record now and resume at
    16 1:45. Thank you.
    17 (Whereupon, further proceedings
    18 were adjourned pursuant to the
    19 lunch break and reconvened
    20 as follows.)
    21 HEARING OFFICER GLENN: Let's go back on
    22 the record. Good afternoon, again, and welcome
    23 back to this, our second hearing in our R01-9,
    24 the Proposed New 35 Illinois Administrative Code
    L.A. REPORTING (312) 419-9292

    142
    1 217, Subpart W, The NOx Trading Program for
    2 Electrical Generating Units.
    3 Before we resume hearing from the
    4 our witnesses this afternoon, I'd like to take
    5 care of just a couple of housekeeping items.
    6 First, I would like to ask the Agency if they
    7 intend to request a third hearing which is
    8 currently scheduled for October 10th?
    9 MS. KROACK: We do not.
    10 HEARING OFFICER GLENN: In light of the
    11 Agency's request not to have a third hearing,
    12 there will be some deadlines that you might want
    13 to listen up for. We intend to get an expedited
    14 transcript in this matter, which would mean the
    15 Board would have the transcript on September
    16 29th. Assuming that the transcript does arrive
    17 at the Board on September 29th, the public
    18 comment period runs for 14 days, which would
    19 mean the record in this matter would officially
    20 close on Friday, October 13th, at 4:30. The
    21 mailbox rule does not apply to any public
    22 comments. So you would have to file this
    23 comment with the Board by 4:30 on October 13th.
    24 If you file a public comment, I
    L.A. REPORTING (312) 419-9292

    143
    1 would remind you that the Board is to receive an
    2 original and nine copies of this comment.
    3 Additionally, we would ask that you would serve
    4 a copy of your public comments on all people on
    5 the service list. We have copies of that
    6 service list here today. You can take one with
    7 you or you can ask us for -- ask me for one at a
    8 later date, but you are required to serve the
    9 service list people with your public comments.
    10 I would discourage anyone from
    11 filing fact filings on the 13th, but if you get
    12 desperate, give me a call. Now, if in the event
    13 we do not get the transcript on the 29th, those
    14 dates are going to change. So what I will do is
    15 I will put out a hearing officer order as soon
    16 as we get the transcript so everybody on the
    17 service list and notice list will know what the
    18 final dates are, but I'm optimistic that we will
    19 get it on the 29th.
    20 Also, the transcript will be placed
    21 on the Board's web page, but I don't anticipate
    22 that happening, assuming we get it on September
    23 29th, I don't anticipate that will happen before
    24 Tuesday, October 3rd. Hopefully, we will get it
    L.A. REPORTING (312) 419-9292

    144
    1 put on the web page that Tuesday. Keep
    2 checking. It will be on there.
    3 Are there any questions regarding
    4 that matter? Okay.
    5 MS. KROACK: Cathy -- excuse me. Hearing
    6 Officer Glenn, do you intend if you receive the
    7 transcript on the 29th to send it to the service
    8 list or only to make it available?
    9 HEARING OFFICER GLENN: We will only make
    10 it available. We will not be sending hard
    11 copies of the transcript to the service list.
    12 The Board has a policy of 75 cents a page for
    13 something like that. So if you wanted us to
    14 send it to you, please let me know, but you will
    15 be getting a bill. I would recommend the
    16 transcript off the web or come to the Board's
    17 offices and I can get you a copy that you can
    18 copy for yourself.
    19 Yes. Do you have a question, Ms. Schoen.
    20 MS. SCHOEN: After the 13th date, what
    21 are the next milestones?
    22 HEARING OFFICER GLENN: Oh. Thank you.
    23 After October -- assuming we get the transcript
    24 on September 29th and the record closes on

    L.A. REPORTING (312) 419-9292
    145
    1 October 13th, pursuant to the Board's order on
    2 July -- excuse me a moment, July 13th. We did
    3 announce that if the third hearing is cancelled,
    4 the Board would go to second notice by November
    5 20th, and the Board meeting preceding November
    6 20th is November 16th.
    7 So the latest we would be going to
    8 second notice would be that meeting on November
    9 16th, and I would remind you that under Section
    10 28.5, those time frames are -- those are
    11 statutory. The Board doesn't have any
    12 flexibility on that schedule. After we proceed
    13 to second notice, final adoption would be 21
    14 days after we receive JCAR's certificate of no
    15 objection, and, I'm sorry, I don't know what
    16 JCAR's meeting calendar is in December, but
    17 those are the deadlines we are working with now.
    18 Any more questions about those
    19 deadlines? Again, I will put out a hearing
    20 officer order to clarify everything once we
    21 receive the transcript. If the transcript is
    22 delayed in getting to us, the time frames will
    23 adjust accordingly, but I will contact all of
    24 you via hearing officer order so you will know

    L.A. REPORTING (312) 419-9292
    146
    1 precisely what is going on. If you haven't
    2 signed up to be on our notice list or our
    3 service list and you want to get this hearing
    4 officer order, please sign up. There's a
    5 sign-up sheet for either the notice or service
    6 list on the table by the door there.
    7 Any more questions regarding that?
    8 Okay. Seeing none, before we get to our witness
    9 testimony, I would like to ask if anyone else
    10 has any questions for the Agency regarding the
    11 motion to amend that it filed this morning?
    12 Okay. No more questions. So let's get back to
    13 our witness testimony. I believe we were going
    14 to start this afternoon with Mr. Furstenwerth.
    15 Before we get to Mr. Furstenwerth, I do have
    16 additional copies of testimony on the table that
    17 we ran out of this morning. So if you didn't
    18 get copies of something, I know we ran out of
    19 Mr. Dupuis' and some others. So help yourself.
    20 If you still don't see what you need, let me
    21 know afterwards and I'll get you a copy before
    22 you leave here today.
    23 Without further ado, Mr.

    24 Furstenwerth.
    L.A. REPORTING (312) 419-9292
    147
    1 MR. FURSTENWERTH: Thank you members of
    2 the Board. Before I start my comments, I'd like
    3 to move to enter my testimony into the record.
    4 HEARING OFFICER GLENN: So granted. We
    5 will mark Mr. Furstenwerth's prefiled testimony
    6 as Exhibit No. 37.
    7 (Exhibit No. 37 marked
    8 for identification,
    9 9-26-00.)
    10 MR. FURSTENWERTH: Thank you. My name is
    11 Derek Furstenwerth. I'm a leader in the Air
    12 Resources Division of the Environmental
    13 Department of Reliant Energy Incorporated.
    14 Reliant Energy is an international energy
    15 services and energy delivery company based in
    16 Houston, Texas. Reliant Energy owns and
    17 operates over 26,000 megawatts of power
    18 generation in the U.S. and western Europe. In
    19 Illinois, Reliant Energy began operation this
    20 summer at its 345 megawatt facility in Shelby
    21 County and has under construction an 870
    22 megawatt peaking facility in Aurora. As a

    23 result, Reliant Energy will be impacted by the
    24 final NOx trading rule regulations promulgated
    L.A. REPORTING (312) 419-9292
    148
    1 by the Pollution Control Board. We appreciate
    2 the opportunity to present this testimony.
    3 As you're aware, the electric
    4 industry is in the process of being
    5 deregulated. Because of uncertainty regarding
    6 the shape that deregulation would take, there's
    7 little investment in new power generation
    8 facilities in the United States in the late
    9 1980s and the 1990s. As a result, there's now a
    10 shortage of generation capacity during periods
    11 of peak electric demand. In response to the
    12 shortage and the passage of Illinois'
    13 deregulation law, there's been a significant
    14 amount of activity in the siting of electric
    15 power generation facilities in Illinois in the
    16 last two years.
    17 Work on the proposed Illinois NOx
    18 trading rule began in 1998 after the USEPA
    19 issued the NOx SIP Call, which ordered states in
    20 the eastern U.S. to develop NOx trading rules as
    21 a cost-effective way to ensure ozone

    22 nonattainment areas in the eastern U.S. would
    23 reach attainment. This SIP Call occurred prior
    24 to the current period of significant electric
    L.A. REPORTING (312) 419-9292
    149
    1 generation development in Illinois. As a
    2 result, the proposed rule developed by the IEPA
    3 contains a number of provisions that do not
    4 accurately reflect the present marketplace of
    5 generating facilities in the state.
    6 These new market entrants are part
    7 and parcel of the development of the
    8 infrastructure within the state of Illinois that
    9 will allow the current economic expansion in the
    10 state to continue. Moreover, the facilities
    11 being built generally have significantly lower
    12 NOx emissions than older generating units in the
    13 state. In effect, the proposed rule insulates
    14 older generating sources from having to install
    15 pollution control equipment and forces potential
    16 new sources to compete for an insufficient
    17 amount of NOx allowances available to them under
    18 the provisions of the proposed rule. Surely one
    19 quality of a successful NOx trading rule would
    20 be to reduce NOx as cost-effectively as possible

    21 while allowing the continued development of the
    22 new, clean, efficient generation the state needs
    23 to foster continued economic growth. To this
    24 end, Reliant Energy suggests four substantive
    L.A. REPORTING (312) 419-9292
    150
    1 changes to the propose Illinois NOx trading
    2 rule.
    3 First, USEPA's model rule allowance
    4 allocation methodology should be applied
    5 beginning in 2006 or now with this morning's
    6 proposal, 2007. In general, the proposed
    7 Illinois NOx trading rule is modeled after
    8 USEPA's model rule. The model rule was issued
    9 as part of the NOx SIP Call to provide states a
    10 template upon which to build their own state
    11 budget rules. The proposed Illinois NOx trading
    12 rule uses many of the concepts from USEPA's
    13 model rule, but strays from the model rule
    14 approach in several ways. The allocation
    15 methodology is one area in which the NOx trading
    16 rule differs from the model rule.
    17 Both the model rule and the proposed
    18 Illinois NOx trading rule allocate a fixed
    19 number of allocations to existing sources for

    20 the first three years of the program. These
    21 allocations amount to 95 percent of the total
    22 state NOx budget, and the remainder of the
    23 budget resides in the new source set-aside,
    24 which is discussed in greater detail later in my
    L.A. REPORTING (312) 419-9292
    151
    1 testimony.
    2 Facilities receiving fixed
    3 allocation in 2003 through 2005 are listed in
    4 Appendix F of the proposed rule and for the
    5 purpose of this discussion will be referred to
    6 hereafter as Appendix F sources. Only sources
    7 in operation prior to 1995 are listed in
    8 Appendix F. In other words, from 2003 through
    9 2005, sources which began operating after 1994
    10 will receive no fixed allocations, but will
    11 instead be allocated allowances only from the
    12 new source set-aside.
    13 In USEPA's model rule, beginning in
    14 2006, all existing sources, including those
    15 built after 1995, are allocated allowances based
    16 on their historical heat input, which is the
    17 same essentially as fuel use, multiplied by a
    18 target NOx emission rate .15 pounds per million

    19 Btu. The purpose of this calculation approach
    20 is to allocate allowances to sources in the
    21 state based on their level of operations, more
    22 operations, more allowances. Conversely, the
    23 less a source operates, the fewer allowances it
    24 receives.
    L.A. REPORTING (312) 419-9292
    152
    1 Bear in mind, however, that the
    2 state's NOx budget is fixed. If more sources
    3 are built in the state or older sources are
    4 operated more than they were historically,
    5 individual allocations are reduced for all
    6 sources. As a result, as more new clean sources
    7 begin operating in the state and as older
    8 sources operate more to meet increased demand,
    9 all sources receive a smaller piece of the pie.
    10 The Illinois NOx trading rule
    11 differs from the model rule in two significant
    12 ways at this point. One is discussed here, and
    13 one is discussed in my second comment. While
    14 the model rule allocates NOx allowances
    15 beginning in 2006, based on historical
    16 operations, the proposed Illinois NOx trading
    17 rule utilizes what IEPA describes a fixed/flex

    18 allocation methodology for allowance allocations
    19 from 2006 through 2009. In 2006 and seven,
    20 Appendix F sources receive 80 percent of their
    21 fixed allocation amount regardless of historical
    22 operations.
    23 Sources not listed in Appendix F
    24 receive their allocations based on historical
    L.A. REPORTING (312) 419-9292
    153
    1 operations from the left over 20 percent of the
    2 state budget. These allocations are then
    3 reduced by 20 percent. If any allocations
    4 remain, they are divided among all sources
    5 according to historical operations. In 2008 and
    6 2009, Appendix F sources receive 50 percent of
    7 their fixed allocations, again, regardless of
    8 historical operations. Non-Appendix F sources
    9 receive 50 percent of the allocation to which
    10 they would be entitled based on historical
    11 operations. Any remaining allowances are,
    12 again, divided among all sources based on
    13 historical operation.
    14 The net result of this is to lock
    15 non-Appendix F sources out of the majority of
    16 allowance allocations for the first seven years

    17 of the program. This will force newer sources,
    18 which are already the cleanest in the state, to
    19 force technology to unprecedented levels to
    20 control emissions to within their allowance
    21 allocations or attempt to buy additional NOx
    22 allowances in the marketplace.
    23 Existing sources, meanwhile, can
    24 simply stockpile allowances from the early years
    L.A. REPORTING (312) 419-9292
    154
    1 of the program delaying the implementation of
    2 controls for many years, even though these
    3 controls may be more cost-effective than the
    4 incremental controls on the newer, cleaner
    5 sources. As a result, newer cleaner sources
    6 will be discouraged from locating in Illinois at
    7 a time when such facilities are needed to
    8 provide cheaper and more reliable electricity to
    9 the state.
    10 In order for a market-based NOx
    11 control rule to work, the NOx allowance
    12 allocation scheme must reflect the historical
    13 operations of the sources affected by the rule.
    14 The fixed/flex allowance allocation scheme runs
    15 directly counter to this precept. Accordingly,

    16 Reliant Energy recommends that the proposed
    17 Illinois NOx trading rule be revised to apply
    18 the model rule allowance allocation methodology
    19 beginning in 2006 rather than delaying full
    20 implementation of this methodology until 2010.
    21 My second point is NOx allowance
    22 should be allocated to all sources based on a
    23 target emission rate of .15 pounds per million
    24 Btu. Another important difference in allocation
    L.A. REPORTING (312) 419-9292
    155
    1 methodology between the NOx trading rule and
    2 USEPA's model rule lies in the disparate
    3 treatment of Appendix F sources and newer
    4 sources with respect to emission rates. The
    5 model rule allocates allowances to all affected
    6 sources based on historical operations
    7 multiplied by .15 pounds per million Btu NOx.
    8 These allocations are then prorated to all
    9 sources to ensure that the total allocations do
    10 not exceed the state NOx budget.
    11 The result of this is to allow NOx
    12 reductions to be made most cost-effectively by
    13 installing controls on the sources best-suited
    14 to such controls and allowing lesser controls on

    15 other sources. For example, one unit may be
    16 particularly well-suited to installing pollution
    17 control equipment and another may not. In
    18 effect, this approach rewards the lowest
    19 emitters because any allowances they receive
    20 above their actual emissions level can be either
    21 used at other sources owned by the same owner or
    22 sold on the market to recoup some of the costs
    23 of installing control. This is another central
    24 concept in a market-based emission control
    L.A. REPORTING (312) 419-9292
    156
    1 rule.
    2 The proposed Illinois NOx trading
    3 rule differs from the model rule in its
    4 treatment of non-Appendix F sources. As noted
    5 above, the model rule allocates allowances to
    6 all sources based on a target emission rate of
    7 .15 pounds per million Btu. The proposed
    8 trading rule, on the other hand, only proffers
    9 this treatment to Appendix F sources. Newer,
    10 cleaner sources are allocated allowances based
    11 on their permitted NOx emission limits, which
    12 are much lower than .15 pounds per million
    13 Btus. Current emission limits for new units are

    14 approaching one-tenth of that level. Here's an
    15 example of the disparity thus created. Source A
    16 began operating in 1960 and consumes ten million
    17 Btus of fuel in the baseline period. As a
    18 result of the NOx budget rule, Source A was
    19 equipped with pollution control equipment that
    20 reduces NOx to .05 pounds per million Btu.
    21 Source B began operating in 2000. Source B also
    22 consumed ten million Btus of fuel in the
    23 baseline period and also has NOx emissions of
    24 .05 pounds per million Btu.
    L.A. REPORTING (312) 419-9292
    157
    1 Under the proposed rule, Source A
    2 would receive 750 NOx allowances, while Source B
    3 would receive 250. I would like to editorialize
    4 here that this is assuming that I'm ignoring the
    5 idea that the entire budget is likely to be
    6 oversubscribed and these would all be prorated.
    7 This is just a relative proportion. It's an
    8 example of the proportions.
    9 In effect, Source B is penalized for
    10 being built after 1995. Consider also the fact
    11 that the source built in 2000 is almost
    12 certainly more efficient than the source built

    13 in 1960, and the imbalance of this approach
    14 becomes even more pronounced. In this way, the
    15 proposed trading rule provides another barrier
    16 to the new electric generation facilities
    17 Illinois needs and rewards older, less efficient
    18 units simply for being older. Reliant Energy
    19 strongly recommends that all existing units be
    20 allocated allowances based on a target emission
    21 rate of .15 pounds per million Btu.
    22 The new source set-aside should be
    23 maintained at five percent of the total state
    24 NOx budget for the life of the program. The
    L.A. REPORTING (312) 419-9292
    158
    1 current proposal reduces the size of the new
    2 source set-aside to two percent of the total NOx
    3 budget beginning in 2006. This will further
    4 limit the allowances available to new sources
    5 wishing to locate in Illinois raising additional
    6 barriers to economic development. The new
    7 source set-aside is the pool of allowances which
    8 is used to provide allowances to new sources
    9 until they have been operating long enough to
    10 enter the main program.
    11 This recommendation is consistent

    12 with the Illinois Pollution Control Act, which
    13 stipulates five percent of total state NOx
    14 budget as the maximum size of the new source
    15 set-aside. Other states have maintained the new
    16 source set-aside at five percent of the total
    17 NOx budget in order to encourage continued
    18 economic development. In fact, New Jersey has a
    19 new source set-aside equal to ten percent of the
    20 state NOx budget.
    21 I'd also like to point out here that
    22 one of the previous witnesses was discussing
    23 their facility, which was a CFB boiler facility
    24 burning coal waste and so forth, and they were
    L.A. REPORTING (312) 419-9292
    159
    1 talking about NOx emissions during the control
    2 period of, if memory serves, about 1100 tons,
    3 and the new source set-aside when it drops to
    4 two percent of the state budget will be about
    5 600 tons of NOx. So with one source of that
    6 size of that new source set-aside, it would
    7 already be two percent -- excuse me, two times
    8 oversubscribed.
    9 Item four, IEPA should not charge
    10 fee withdrawals from the new source set-aside.

    11 The IEPA has proposed to charge an equal to the
    12 market index price for each NOx allowance
    13 allocated from the new source set-aside. The
    14 proceeds from these fees are then returned to
    15 Appendix F sources. In effect, this further
    16 increases the cost of doing business in Illinois
    17 for new sources, but provides very little return
    18 to Appendix F sources to help them offset
    19 pollution control costs.
    20 The new source set-aside is simply a
    21 mechanism to provide allowances to new sources
    22 until they have operated for long enough to
    23 enter the main program. No fee is charge for
    24 allowance allocations in any other part of the
    L.A. REPORTING (312) 419-9292
    160
    1 program. There's no benefit for charging a fee
    2 to a source simply because they're in this
    3 interim program. Furthermore, Reliant Energy is
    4 unaware of any other states that are proposing
    5 to charge for withdrawals from the new source
    6 set-aside.
    7 In summary, the proposed Illinois
    8 NOx trading rule, with some important changes,
    9 should provide for clean air in the state by

    10 balancing the interests of existing electric
    11 generation facilities with those of new entrants
    12 into the electric generation market. Reliant
    13 Energy appreciates the opportunity to provide
    14 input on this important topic, and we are
    15 prepared to answer any questions that the
    16 Pollution Control Board may have regarding our
    17 comments or anybody else for that matter.
    18 HEARING OFFICER GLENN: Thank you,
    19 Mr. Furstenwerth. Why don't we go to members of
    20 the public first. Would anyone like to ask a
    21 question of Mr. Furstenwerth's testimony? Such
    22 a quiet group. Okay. Members of the Agency,
    23 anything?
    24 MS. KROACK: We have no questions.
    L.A. REPORTING (312) 419-9292
    161
    1 HEARING OFFICER GLENN: Okay. Members of
    2 the Board, any questions for Mr. Furstenwerth?
    3 MS. McFAWN: I have some. I didn't want
    4 to disappoint you all. The first page of your
    5 prepared testimony, you say that, in effect, the
    6 proposal will insulate older generating sources
    7 from having to install pollution control
    8 equipment. I didn't realize that. I thought

    9 they had to install pollution control equipment,
    10 but they were going to have a difficult time
    11 cost and retrofitting.
    12 MR. FURSTENWERTH: I think the intent
    13 there was to say that some of the provisions of
    14 the rule tend to minimize the impact of some of
    15 the pollution control equipment that would have
    16 to be installed on those, in my opinion, at the
    17 -- to the detriment of new sources in the
    18 state.
    19 MS. McFAWN: So they will have to install
    20 equipment?
    21 MR. FURSTENWERTH: Yes.
    22 MS. McFAWN: How would -- maybe I didn't
    23 understand your answer correctly.
    24 How would the installation of that
    L.A. REPORTING (312) 419-9292
    162
    1 equipment be a detriment to the new sources?
    2 MR. FURSTENWERTH: Because the way that
    3 it does that is by preserving a larger portion
    4 of the total allowance pool and dedicating it to
    5 existing sources. So while new sources are
    6 being built in the state and competing for a
    7 relatively small portion of the allowance pool,

    8 the existing sources are still entitled to a
    9 fixed portion of that pool through the first
    10 seven years of the program.
    11 MS. McFAWN: Okay. Thank you.
    12 Further on in your testimony under
    13 your first point still, you were talking about
    14 new sources and cleaner sources being
    15 discouraged from locating in Illinois at a time
    16 when such facilities are needed to provide
    17 cheaper and more reliable electricity to the
    18 state.
    19 Why, you know, if we set aside the
    20 cost of the allocations, why would the new
    21 sources provide cheaper electricity?
    22 MR. FURSTENWERTH: The presumption here
    23 is that the will of the Illinois Assembly or
    24 their perception of the way the electric
    L.A. REPORTING (312) 419-9292
    163
    1 industry should work is correct in that more
    2 generation in the -- excuse me, more competition
    3 in the electric generation sector will drive
    4 prices down for all the end users of
    5 electricity.
    6 MS. McFAWN: All right. But if you're

    7 using like a cleaner fuel like gas, it can be a
    8 more costly --
    9 MR. FURSTENWERTH: I wouldn't dispute
    10 that natural gas costs more than coal. That's
    11 right.
    12 MS. McFAWN: Under your fourth point
    13 towards the end of your prepared testimony, you
    14 say -- you're talking about the market index
    15 price which will be the fee, and you said that
    16 the proceeds from these fees are then returned
    17 to the Appendix F sources, okay, and that, in
    18 effect, this provides very little return to help
    19 the sources in the main program offset pollution
    20 control costs.
    21 By that, I think you're referring to
    22 the Appendix F sources; is that correct?
    23 MR. FURSTENWERTH: What I'm referring to
    24 is that with the size of the new source
    L.A. REPORTING (312) 419-9292
    164
    1 set-aside, if the entire new source set-aside
    2 were sold at a market index price of, you know,
    3 whatever that may be, maybe it's $3,000 a ton of
    4 NOx, and I don't really know what that would be,
    5 when you take the proceeds from the entire new

    6 source set-aside, which will be 600 tons after
    7 the first three years of the program, divide it
    8 over all the existing sources in the existing
    9 source pool -- I think I misspoke here.
    10 I believe that this is distributed
    11 to all of the existing sources of folks in the
    12 existing pool. At any rate, when you divide it
    13 over all of those sources, the net return to any
    14 one of those sources is very small compared to
    15 their total pollution control costs.
    16 MR. RAO: Just clarification on your
    17 reply.
    18 The proceeds from the sale of new
    19 source set-aside, part of it is for -- is meant
    20 for the Ageny's administration of this program,
    21 right? So only, you know, the monies that are
    22 generated in excess of whatever the Agency's
    23 costs are there, that is distributed to the
    24 existing sources?
    L.A. REPORTING (312) 419-9292
    165
    1 MR. FURSTENWERTH: Right. I should
    2 clarify. We would support a fee for the cost of
    3 administering the program. It's the cost over
    4 and above that we feel are not justified.

    5 MR. RAO: Thank you.
    6 MR. MELAS: Just a couple of
    7 clarification questions. On your opening
    8 paragraph, that 345 megawatt facility in Shelby,
    9 is that a base load unit or is that a peaker
    10 unit?
    11 MR. FURSTENWERTH: That's a peaker.
    12 MR. MELAS: Is it simple cycle?
    13 MR. FURSTENWERTH: Yes, sir.
    14 MR. MELAS: And what about the one you're
    15 planning in Aurora, what's that going to be?
    16 MR. FURSTENWERTH: That will also be a
    17 simple cycle plant.
    18 MR. MELAS: Are there any plans down the
    19 road to maybe go combined cycle on that Aurora
    20 plant?
    21 MR. FURSTENWERTH: I'm not aware of any
    22 at this time.
    23 MR. MELAS: Do you have adequate space on
    24 your site if you so decide that three years down
    L.A. REPORTING (312) 419-9292
    166
    1 the line you want to do that?
    2 MR. FURSTENWERTH: I'm not sure. I don't
    3 know if that was something that was anticipated

    4 or not.
    5 HEARING OFFICER GLENN: Any more
    6 questions of Mr. Furstenwerth? Okay. Seeing
    7 none, thank you very much for coming. Let's
    8 move on to Mr. Miller.
    9 MS. FAUR: My name is Cynthia Faur. I'm
    10 from Sonnenschein, Nath & Rosenthal. I'm here
    11 today representing Midwest Generation EME. We
    12 have one primary witness today, Scott Miller.
    13 Kent Wanninger is also at the table with us to
    14 answer any more technical questions that the
    15 Board, the Agency, or members of the public may
    16 have. Mr. Miller is going to summarize his
    17 testimony today, but I do have copies of his
    18 prefiled testimony and his summary to submit to
    19 the Board as exhibits.
    20 HEARING OFFICER GLENN: Please present
    21 those now, Ms. Faur. Mr. Wanninger, could we
    22 swear you in actually. Could we get him sworn
    23 in first, and then I'll do the exhibits.
    24 (Witness sworn.)
    L.A. REPORTING (312) 419-9292
    167
    1 HEARING OFFICER GLENN: And then now I
    2 will mark Mr. Miller's prefiled testimony as

    3 Exhibit No. 38 and then Mr. Miller's -- the
    4 summary of Mr. Miller's testimony as Exhibit No.
    5 39.
    6 (Exhibit Nos. 38 and 39
    7 marked for identification,
    8 9-26-00.)
    9 HEARING OFFICER GLENN: Okay. Please
    10 begin.
    11 MR. MILLER: Good afternoon. My name is
    12 Scott Miller. I represent Midwest Generation
    13 where I am employed as a senior environmental
    14 engineer in the corporate environmental health
    15 and safety department. I have been working for
    16 Midwest Generation since the fossil generation
    17 assets of Commonwealth Edison Company were
    18 purchased by Edison Mission Energy on December
    19 15th, 1999. Prior to that, I held a similar
    20 position at Commonwealth Edison where I was
    21 involved mainly with air quality planning,
    22 permitting, monitoring, and compliance.
    23 I've been following NOx regulation
    24 development issues since the Clear Air Act was
    L.A. REPORTING (312) 419-9292
    168
    1 amended in 1990, and I have participated in the

    2 development of several proposed rulemakings
    3 concerning NOx emissions, including the Illinois
    4 Draft NOx RACT regulation and the Chicago
    5 nonattainment area NOx cap and trade design team
    6 which was the predecessor to the VOM cap and
    7 trade system and regulation. I also
    8 participated as a stakeholder in the development
    9 of the NOx trading program for electrical
    10 generating units, which is the of this
    11 rulemaking.
    12 As the Board may be aware, Midwest
    13 Generation is a new company to Illinois, and it
    14 is based in Chicago. Midwest Generation is a
    15 subsidiary of Edison Mission Energy, which is
    16 one of the largest independent power producers
    17 in the world with an installed capacity of over
    18 27,000 megawatts of electrical. Midwest
    19 Generation, which consists of coal, oil, and
    20 natural gas power plants in Illinois and
    21 Pennsylvania, has an installed capacity of
    22 10,000 megawatts in Illinois and 2,000 megawatts
    23 in Pennsylvania. In Illinois, Midwest
    24 Generation operates coal-fired plants in
    L.A. REPORTING (312) 419-9292
    169

    1 Chicago, Waukegan, Will County, Joliet, and
    2 Pekin, Illinois.
    3 When Midwest Generation purchased
    4 ComEd's fossil assets, it made a commitment to
    5 reduce nitrogen oxides from those plants by 50
    6 percent both on a rate basis and a tonnage basis
    7 by the end of the year 2002. This commitment
    8 was not based upon any future regulatory
    9 requirements or the prospect of early reduction
    10 credits, but based upon a desire to improve air
    11 quality in Midwest Generation's operating area.
    12 Earlier this year, we have
    13 retrofitted three tangentially fired boilers at
    14 our Joliet, Waukegan, and Will County stations
    15 with low NOx burners utilize close-coupled and
    16 separated overfire air ports known as the ABB
    17 TFS-2000 system. All three units have achieved
    18 NOx reductions as low as 1.3 pounds per million
    19 and collectively will reduce NOx emmissions by
    20 4500 tons in this year's ozone season and 9,000
    21 tons annually. This newly achieved emissions
    22 rate at all three units is greater than a 50
    23 percent reduction.
    24 Next year, Midwest Generation plans
    L.A. REPORTING (312) 419-9292
    170

    1 to install NOx controls at an additional five
    2 units. These controls will reduce NOx by an
    3 additional 7,000 tons during the ozone season
    4 and 14,000 tons annually.
    5 Midwest Generation generally
    6 supports the proposed rule including the NOx
    7 budget allowance allocations. The purpose of my
    8 testimony is to comment on three aspects of the
    9 rule; the compliance date for the rule in light
    10 of a recent court ruling extending the
    11 compliance date for the SIP Call until March
    12 31st, 2004; the appropriateness of the fixed
    13 allocation method; and the manner in which early
    14 reduction credits will be determined.
    15 First, Midwest Generation requests
    16 that the Board amend the proposed rule to
    17 postpone the compliance date for the NOx SIP
    18 Call from May 1, 2003, to May 31st, 2004. We
    19 heard this morning a motion to amend, and we
    20 would agree with that. On August 30th, 2000,
    21 the U.S. Court of Appeals for the District of
    22 Columbia, as part of the ongoing litigation of
    23 the USEPA rules known as the SIP Call, postponed
    24 the compliance date for the SIP call until May
    L.A. REPORTING (312) 419-9292

    171
    1 31st, 2004. Consequently, it is my
    2 understanding that implementation of the
    3 proposed rule, which is Illinois' response to
    4 the NOx SIP Call, could be delayed until May
    5 31st, 2004, in accordance with that order.
    6 Midwest Generation believes that an extension
    7 will better enable sources to install the
    8 pollution control equipment necessary to meet
    9 the requirements of the rule by the compliance
    10 date.
    11 It is Midwest Generation's
    12 understanding that the Illinois EPA intends to
    13 propose an interim rule that would require EGUs
    14 to meet a rate-based limit of .25 pounds per
    15 million Btu by May 1st, 2003. Midwest
    16 Generation would, in concept, support such an
    17 interim rule giving sources time to comply with
    18 the additional stringent requirements of the SIP
    19 Call.
    20 Second, I would like to comment on
    21 the fixed allocation method proposed by the
    22 Agency in the initial years of the program.
    23 Midwest Generation supports this approach
    24 because it provides existing coal burning
    L.A. REPORTING (312) 419-9292

    172
    1 facilities with certainty coming into this
    2 stringent NOx reduction program. There has not
    3 been a great deal of experience on the retrofit
    4 of control technologies on existing coal-fired
    5 burning units, using fixed allotments for the
    6 initial years of the program will facilitate a
    7 smooth transition of existing EGUs, those in
    8 service before 1995, into this program.
    9 Finally, I would like to comment on
    10 two aspects of the early reduction credit
    11 program included in Section 217.770 of the
    12 rule. Before I summarize Midwest Generation's
    13 comment on 217.770, I would like to withdraw a
    14 portion of my prefiled testimony on the early
    15 reduction program. In my prefiled testimony, I
    16 suggested that the Board amending 217.770 of the
    17 proposed rule to allow sources to generate early
    18 reduction credits over a three-year period, 2001
    19 through 2003, instead of the two-year period
    20 currently proposed.
    21 After filing my prefiled testimony
    22 with the Board, however, I learned that the
    23 Agency intends to amend this proposed rule to
    24 delay implementation of the NOx trading rule

    L.A. REPORTING (312) 419-9292
    173
    1 until May 2004, and to propose to the Board an
    2 interim NOx rule that would become applicable to
    3 EGUs in May 2003.
    4 Since the Agency intends to propose
    5 an interim rule to the Board that would require
    6 emission reductions from EGUs in May 2003,
    7 Midwest Generation no longer believes that would
    8 be appropriate to allow sources to generate ERCs
    9 in the year 2003.
    10 Therefore, I am withdrawing my
    11 comments in the prefiled testimony that
    12 reference options for three-year early reduction
    13 credit program. In my oral testimony, I will
    14 summarize our comments on the two-year early
    15 reduction program as originally proposed by the
    16 Agency.
    17 Midwest Generation strongly believes
    18 that an early reduction credit program should be
    19 included in the final rule adopted by the
    20 Board. An early reduction credit program will
    21 provide sources with the incentive to reduce
    22 their NOx emissions before the required
    23 compliance date, but this incentive will be lost
    24 if the years of the early reduction program can

    L.A. REPORTING (312) 419-9292
    174
    1 slide back with delays in the program. Under
    2 Section 217.770(e), as currently proposed, if
    3 the date for implementing the NOx SIP Call is
    4 delayed, the dates for use of the ERCs will
    5 shift to correspond with the first two years of
    6 the trading program and the years in which ERCs
    7 can be generated will be delayed until two years
    8 before implementation of the trading program.
    9 While Midwest Generation agrees that
    10 ERCs should be available to be used during the
    11 first two years of the trading program, it does
    12 not believe that there should be a shift in the
    13 years in which ERCs can be generated. Midwest
    14 Generation, therefore, requests that 217.770(e)
    15 be revised to provide that if there's a delay
    16 in implementation of the SIP Call, which there
    17 seems to be, the dates for submitting an early
    18 reduction request will remain as provided in
    19 217.770(d)(3), but the other dates in the
    20 section shall be adjusted accordingly. The
    21 proposed revision will lock in 2001 and 2002 as
    22 the dates for the early reduction program.
    23 Only an early reduction program that

    24 locks in 2001 and 2002 as the years for early
    L.A. REPORTING (312) 419-9292
    175
    1 reduction credit generation will truly encourage
    2 early reduction. If the dates for early
    3 reduction credit generation are allowed to slide
    4 with the implementation of the trading rule,
    5 sources that reduce emissions in 2001 and 2002
    6 will be penalized because other sources that did
    7 not intend to reduce their emissions early, but
    8 instead planned to install their control
    9 equipment just in time to comply with the rules
    10 would also be eligible for a share of the
    11 limited number of ERCs.
    12 To further encourage early
    13 reductions, Midwest Generation also requests
    14 that the Board advise the allocation of ERCs
    15 contained in section 217.770(f)(2) of the
    16 proposed rule to provide a larger pool of
    17 available credits in 2001 and 2002. As
    18 currently proposed, Section 217.770(f)(2)
    19 provides that the 15,621 ERCs will be divided
    20 equally over the two years of the early
    21 reduction credit program. Midwest Generation
    22 believes that to truly encourage and reward

    23 early reductions, this pool should be divided so
    24 more credits are available in 2001.
    L.A. REPORTING (312) 419-9292
    176
    1 Specifically, Midwest Generation requests that
    2 the Board revise a proposed rule to allocate
    3 two-thirds of the available credits, or 10,184
    4 ERCs, to the ERC pool in 2001 and to allocate
    5 the remaining one-third of the credits, or
    6 5,887 -- 5,087 ERCs to the 2002 pool. Since the
    7 allowances carry forward, no unused allowances
    8 would be lost by this proposed method, and the
    9 proposed method would encourage earlier
    10 reductions.
    11 Midwest Generation also requests
    12 that the Board revise the calculation
    13 methodology contained in 217.770(c) of the
    14 proposed rule, which is used to determine if
    15 early reductions are eligible for the ERC
    16 program. Specifically, Midwest Generation
    17 requests that the Board delete the requirement
    18 contained in Section 217.770(c)(2) that EGUs
    19 with units that are part of a NOx averaging plan
    20 achieve emission reductions from those units as
    21 a whole equivalent to a 30 percent reduction

    22 from the emission rate required under that NOx
    23 averaging plan.
    24 A NOx averaging plan is a means of
    L.A. REPORTING (312) 419-9292
    177
    1 demonstrating compliance with the annual NOx
    2 limitations under the Federal Acid Rain Program,
    3 and Midwest Generation does not believe that
    4 this annual averaging plan should be applied on
    5 a five-month basis because under the averaging
    6 plan, there can be variation annually in the
    7 emissions from the units included in the
    8 average. For example, in the summer months, all
    9 the units in the NOx averaging plant may meet or
    10 exceed the individual NOx limitations applicable
    11 to their particular boiler type without
    12 averaging, but averaging may be needed to meet
    13 the NOx limits of the Acid Rain Program in
    14 another part of the year.
    15 In that example, some units may be
    16 achieving emission reductions that exceed 30
    17 percent of their individual acid rain
    18 limitations, but the other units included in the
    19 averaging plan may not be performing at a level
    20 that would demonstrate 30 percent reduction from

    21 the emission rate in the averaging plan even if
    22 the other units were actually in compliance with
    23 their individual acid rain NOx limitations for
    24 the ozone season.
    L.A. REPORTING (312) 419-9292
    178
    1 As demonstrated by my example, each
    2 EGU could be penalized for using an annual NOx
    3 averaging plan for acid rain compliance in a way
    4 that another source that was not participating
    5 in an averaging plan would not. To address this
    6 potential problem, Midwest Generation requests
    7 that the Board delete the requirement in Section
    8 217.770(c)(2) that EGUs participating in an
    9 annual NOx averaging plan for acid rain
    10 compliance be required to demonstrate a 30
    11 percent reduction from the emission rate
    12 contained in the averaging plan across the units
    13 in the average plan, and to revise Section
    14 217.770(c)(1) to require that all EGUs subject
    15 to acid rain requirements demonstrate a 30
    16 percent reduction from the applicable acid rain
    17 program on a unit-by-unit basis. Midwest
    18 Generation thanks the Board for allowing comment
    19 on this regulation and thanks the Illinois EPA

    20 for many years of developing even back to 1990
    21 with the RACT regulations to this day on
    22 developing those regulations.
    23 HEARING OFFICER GLENN: Thank you, Mr. Miller.
    24 Before we take questions of Mr. Miller, Ms.
    L.A. REPORTING (312) 419-9292
    179
    1 Faur, could I impose upon you to at some point
    2 serve the service list with a summary of the
    3 testimony?
    4 MS. FAUR: Certainly.
    5 HEARING OFFICER GLENN: That way if the
    6 transcript isn't available on the web right
    7 away, at least people will be aware of what Mr.
    8 Miller has changed today from his prefiled
    9 testimony.
    10 MS. FAUR: Certainly. We will serve the
    11 service list.
    12 HEARING OFFICER GLENN: Thank you very
    13 much. Do members of the public have any
    14 questions of Mr. Miller? Yes, please, Mr.
    15 Darguzas.
    16 MR. DARGUZAS: Just a quickie techno
    17 meaning point. On page two of your prefiled
    18 testimony, did you mean to say that you had

    19 reductions of .13 pounds per million Btu, and,
    20 if so, what are the before and after limits?
    21 MR. MILLER: The peak-fired units are
    22 baseline emissions. The baseline was about
    23 between .4 and .5 pounds per million Btus.
    24 MR. DARGUZAS: And you're actually down
    L.A. REPORTING (312) 419-9292
    180
    1 to .12 on a continuous basis?
    2 MR. MILLER: Yes.
    3 BOARD MEMBER FLEMAL: I was trying while
    4 you were running through, particularly Section
    5 217.770, to flip back and forth to where you
    6 were suggesting your changes, and I'm going to
    7 have to go back and do that a little bit more.
    8 Maybe you can help me, though, as I pursue that
    9 effort.
    10 Are there any of those
    11 recommendations that you made regarding 217.770
    12 that the Agency has also recommended in its
    13 motion? I'm not sure whether you were
    14 supporting their changes or whether you were
    15 offering changes in addition to what they add or
    16 wanted to say where we were?
    17 MR. MILLER: I think they added three

    18 years to the early reduction credit program, and
    19 that our comments refer to a two-year program,
    20 2001 and 2002.
    21 BOARD MEMBER FLEMAL: To stay with
    22 basically the proposal as is rather than the
    23 motion made by the Agency to make that a
    24 three-year program.
    L.A. REPORTING (312) 419-9292
    181
    1 MR. WANNINGER: And the other
    2 recommendation was to move -- to have a split in
    3 the early reduction credits, two-thirds of them
    4 earned in the first year, one-third in the
    5 second year to encourage cleaning up the
    6 environment earlier.
    7 BOARD MEMBER FLEMAL: Thank you.
    8 HEARING OFFICER GLENN: Any other
    9 questions of Mr. Miller from the Agency?
    10 MS. KROACK: We have no questions.
    11 HEARING OFFICER GLENN: Thank you,
    12 Ms. Kroack. Anyone else from the public or
    13 members of the Board?
    14 MS. McFAWN: I have a question. Your
    15 second point was that you agree with the fixed
    16 allocation method; is that right?

    17 MR. MILLER: Right.
    18 MS. McFAWN: Okay. And the reason is is
    19 that there has not been a great deal of
    20 experience in retrofitting; is that right?
    21 MR. MILLER: On large cycle and boilers
    22 like with SCR control technology, add-on control
    23 technology, for large coal-fired units.
    24 MS. McFAWN: Is that the kind of
    L.A. REPORTING (312) 419-9292
    182
    1 retrofit -- did you do retrofitting to lower
    2 your numbers?
    3 MR. MILLER: Most of the projects we've
    4 done so far are burners and tangentially fired
    5 boilers. The more difficult retrofits would be
    6 on larger units, greater than 500 megawatts. We
    7 have quite a few cyclone boilers that are high
    8 NOx emitters, emit greater than 1.0 pounds per
    9 million Btu. There's not a lot of actual
    10 commercial demonstrations of SCR in large
    11 coal-fired units, especially that burn powder.
    12 MS. McFAWN: What was that last part?
    13 I'm sorry.
    14 MR. MILLER: There's not a lot of
    15 retrofits on cyclone boilers that burn powder

    16 and river basin coal, western coal.
    17 MS. McFAWN: Do you anticipate having to
    18 do that type of retrofitting in the near
    19 future?
    20 MR. MILLER: If the budget is based on
    21 a .15 rate.
    22 MR. WANNINGER: We have plans right now
    23 to do a retrofit in our powering station. We've
    24 sent out for bids.
    L.A. REPORTING (312) 419-9292
    183
    1 MS. McFAWN: That was all. Thank you.
    2 Any other questions of Mr. Miller this
    3 afternoon? Okay. Seeing none, Mr. Miller and
    4 Mr. Wanninger, thank you very much. We
    5 appreciate your time.
    6 Before moving to Ms. Schoen, it has
    7 come to my attention that Mr. Menne would like
    8 to come back this afternoon and say a few more
    9 words. If anybody else that has already
    10 testified today would like to come back up after
    11 we've heard from Ms. Schoen, I will ask you to
    12 indicate so when she's finished.
    13 Otherwise, we'll hear from Mr. Menne
    14 following Ms. Schoen and then any other members

    15 of the public that didn't file prefiled
    16 testimony, but would like to say a few words,
    17 are welcome to do so also. So, let's see, Ms.
    18 Schoen, we'll hear from you, please.
    19 MS. SCHOEN: Should I be sworn?
    20 HEARING OFFICER GLENN: Yeah. Please
    21 spell your name for the record, please?
    22 MS. SCHOEN: It's S-c-h-o-e-n.
    23 HEARING OFFICER GLENN: Thank you. I
    24 apologize for the pronunciation.
    L.A. REPORTING (312) 419-9292
    184
    1 (Witness sworn.)
    2 MS. SCHOEN: I would like to submit my
    3 prefiled testimony.
    4 HEARING OFFICER GLENN: Okay. We will
    5 admit Ms. Schoen's prefiled testimony as Exhibit
    6 No. 40.
    7 (Exhibit No. 40 marked
    8 for identification,
    9 9-26-00.)
    10 HEARING OFFICER GLENN: Ms. Schoen, you
    11 might want to speak just a little loudly in
    12 case -- I couldn't hear you very well. I'm kind
    13 of loud. Thank you.

    14 MS. SCHOEN: Good afternoon. My name is
    15 Mary Schoen, and I'm manager of environmental
    16 strategies for Enron Corporation. Before I get
    17 started, I'd like to thank the Illinois EPA as
    18 well as for the willingness to engage in an open
    19 dialogue on these important issues and for their
    20 active encouragement in the industry public's
    21 participation in this rulemaking effort.
    22 Enron Corporation is a diversified
    23 energy and communications business. We're the
    24 largest wholesale marketer of natural gas and
    L.A. REPORTING (312) 419-9292
    185
    1 electricity in the U.S. We're a leading
    2 developer of clean merchant generation, and our
    3 business, Enron Energy Services, is a leading
    4 provider of retail energy solutions for
    5 customers around the U.S. and here in Illinois.
    6 Finally, speaking from a trading market
    7 perspective, we're one of the leading emissions
    8 traders of NOx and SO2 allowances in the U.S.
    9 today. We're particularly proud of our Lincoln
    10 Energy Center here in Illinois. This natural
    11 gas-fired facility meets the most stringent air
    12 requirements for a simple cycle generating

    13 plant. Using GE's dry load NOx technology,
    14 we're able to keep emissions at nine parts per
    15 million NOx.
    16 That being said, we're still very
    17 concerned with the NOx SIP being developed here
    18 in Illinois. We've already paid a high price to
    19 build a facility that needs these stringent
    20 clean energy requirements. We believe that the
    21 rule being developed by Illinois EPA will add
    22 significant economic costs to doing business
    23 here in Illinois.
    24 First, let's discuss what the goals
    L.A. REPORTING (312) 419-9292
    186
    1 of the rulemaking were. As you've already
    2 heard, the USEPA in a work group consisting of
    3 states and industry determined that in order to
    4 meet clean air standards for ozone attainment,
    5 NOx would have to be addressed on a regional
    6 basis. USEPA then developed budgets of these
    7 NOx allowances for the affected states that it
    8 determined contributes to transportation of
    9 ozone in affected regions.
    10 As I stated in my written submittal,
    11 each state had its discretion on how to allocate

    12 allowances to affected sources, but they must
    13 stay within the budget given them by the USEPA
    14 in order to participate in the trading program.
    15 This allowance allocation is a
    16 critical factor of the trading program since, as
    17 I stated in my testimony, it compromises the
    18 distribution of wealth, so to speak, in the
    19 trading program. The USEPA provided a model
    20 emissions trading program for states to use as
    21 guidelines, and the theory behind this cap and
    22 trade program proposed by the EPA is that the
    23 market, if allowed, will determine where the
    24 most cost-effective emissions reductions can be
    L.A. REPORTING (312) 419-9292
    187
    1 made, and that as long as there is a cap, in
    2 this case, a budget on the emissions, the
    3 environmental goals will be met.
    4 I think the history is showing that
    5 cap and trade programs can be very effective
    6 ways to achieve environmental regulations. The
    7 SO2 market established an acid rain program and
    8 has achieved reductions at much lower costs than
    9 anticipated when the rule was developed, and the
    10 states currently participating in NOx trading

    11 programs on the east coast have also achieved
    12 NOx reductions at much lower costs than
    13 originally anticipated when the rule was being
    14 developed, but, again, the key to successful cap
    15 and trade programs is that the market determines
    16 where these cost-effective reductions can be
    17 made.
    18 If allowances are distributed
    19 equally to all affected sources, then the
    20 sources and the market can determine a rational
    21 economic basis on how to achieve reduction,
    22 whether it is to install control technology or
    23 whether it is to buy emissions on the market,
    24 whether it is to shut down and sell emissions
    L.A. REPORTING (312) 419-9292
    188
    1 that they have available to them.
    2 If, however, the allocations are
    3 skewed to one group or another, then the
    4 cost-saving functions of the cap and trade
    5 program will be skewed and the lowest cost
    6 reduction will not be made. The design of the
    7 program is critical to ensuring the market
    8 mechanisms envisioned by the USEPA work.
    9 Unfortunately, the Illinois EPA's proposed rules

    10 go against these key principles of letting the
    11 market determine where to make reductions, and
    12 while the air may be cleaner, the citizens and
    13 electric consumers of the state of Illinois will
    14 ultimately pay the price of a NOx SIP that
    15 disincentivizes the development of clean
    16 generation to prevent the lowest cost reductions
    17 from being made.
    18 I'm going to my written testimony
    19 now under Subpart W comments if you want to
    20 follow there. In developing Subpart W, as I
    21 said, Illinois diverged significantly from the
    22 allocation philosophy recommended by the USEPA.
    23 IEPA developed the allocation approach after
    24 extensive negotiations with existing affected
    L.A. REPORTING (312) 419-9292
    189
    1 sources. Developers of new power plants were
    2 not included in this process. This is the
    3 subpart or the Appendix F, I think, it's
    4 called. The resulting allocation methodology is
    5 referred to as the fixed/flex approach.
    6 The initial allocation of allowances
    7 in 2003 provides allowances, tongue twister,
    8 allowances only to plants that were in operation

    9 by January 1st, 1995. Under the fixed/flex
    10 approach, the allocations to existing sources
    11 are fixed to varying degrees until 2008. That
    12 means that the existing sources receive the
    13 majority of the allowances through 2008,
    14 regardless of how much they run or how much they
    15 emit. They will receive these allowances even
    16 if they are shut down and have no emissions.
    17 In the EPA model rule, which we
    18 advocate, the plants that actually provide the
    19 state's power receive the allowances. In
    20 Subpart W, the existing plants receive
    21 grandfathered allowances regardless of whether
    22 they provide any power to the state.
    23 Under the flex portion of the rule,
    24 some of the remaining allowances are allocated
    L.A. REPORTING (312) 419-9292
    190
    1 to the new sources at their very low permitted
    2 emissions levels. The formula is designed in
    3 such a way that new sources will not receive
    4 enough allowances to cover their actual
    5 emissions, even though they are as much as ten
    6 times cleaner than the nominal .15 pounds per
    7 MM/Btu emissions rate. Despite the high cost

    8 systems required of these new plants, as I said,
    9 to meet new stringent technology requirements,
    10 they will be required to purchase allowances,
    11 possibly even from our competitors, in order to
    12 operate under this rule.
    13 While IEPA and the owners of
    14 existing plants argue that retrofit controls on
    15 existing plants are more costly than controls on
    16 new plants, actual experience indicates the
    17 opposite. The cost of NOx controls for large
    18 coal-fired plants is expected to range from
    19 $1500 to $5,000 a ton of NOx reduced. However,
    20 the reduction cost of installing SCR on an
    21 already low-emitting gas-combined cylcle can be
    22 much higher.
    23 Having already, as I said, paid this
    24 high price to control emissions, the new plants
    L.A. REPORTING (312) 419-9292
    191
    1 have as much claim as existing plants to the
    2 benefits of the trading program and should be
    3 treated equitably.
    4 Finally, although there's a new
    5 source set-aside, as we've heard from other
    6 testimonies today, the large number of new

    7 plants being built in Illinois will rapidly
    8 exhaust that set-aside and there will not be
    9 enough allowances to go around. Moreover,
    10 plants that go on line after May 1st, 2002, will
    11 be required to pay for any new source set-asides
    12 they receive at market prices.
    13 Existing sources argue that the EGU
    14 budget is based upon their continued operation
    15 and that they should be compensated for loss of
    16 allowances allocated to new EGUs. This
    17 misstates the development and philosophy of the
    18 trading program. The EGU budget set by the EPA
    19 was based on growth and power generation in
    20 Illinois at a constant allocation rate of .15
    21 pounds per MMBtu, and while we've heard there is
    22 controversy surrounding the budget that was
    23 determined for EPA, but the fact is that this
    24 budget number did not specify which entities
    L.A. REPORTING (312) 419-9292
    192
    1 would provide the growth in that state. In
    2 fact, new plants will actually provide much of
    3 that growth that was anticipated by the USEPA.
    4 Those new plants should be allocated the growth
    5 portion of the budget at the full allocation

    6 level set by the EPA.
    7 The suggestion that existing plants
    8 are losing allowances suggests that they own or
    9 have a right to those allowances. The rules
    10 clearly state that allowances are not a property
    11 right. The allowances are created by the
    12 federal and the state governments as a mechanism
    13 to provide clean air at the lowest cost to
    14 consumers and citizens. They represent these
    15 citizens right to clean air and should be
    16 allocated in the manner which best accomplishes
    17 that goal. They certainly do not belong to
    18 existing power plants as a reward for past
    19 pollution of the environment.
    20 The USEPA's model rule sets a five
    21 percent new source set-aside for the initial
    22 period to cover all the new sources that come on
    23 line between 1995 and now 2004, I assume.
    24 That's a two percent per year set-aside for
    L.A. REPORTING (312) 419-9292
    193
    1 subsequent annual reallocations. Since the
    2 subsequent reallocation in Subpart W takes place
    3 only every two years, we believe that the
    4 set-aside should be increased to at least four

    5 percent and not the maximum five percent. There
    6 is no risk to setting a higher level for the
    7 state of Illinois. If the growth does not
    8 materialize, the unused set-aside allowances
    9 will simply be allocated to existing sources.
    10 On the other hand, if the growth is needed to
    11 support Illinois' economy and electric needs,
    12 the availability of set-asides will be assured.
    13 In summary, there are several
    14 aspects of the fixed/flex approach that will not
    15 achieve emissions reductions in the state of
    16 Illinois in an equitable or cost-effective
    17 manner: The setting aside of a fixed portion of
    18 the allowances for the existing plants; the
    19 allocation of allowances for new sources based
    20 on their very low permitting emissions levels
    21 rather than at the same level used for existing
    22 sources; the new source set-aside is not granted
    23 freely to new sources, but is made available as
    24 a pool of allowances to be purchased at market
    L.A. REPORTING (312) 419-9292
    194
    1 price; and, finally, the new source set-aside
    2 being reduced to two percent, even though the
    3 reallocation period is longer than one-year

    4 reallocation recommended by the EPA model rule.
    5 So what are the negative impacts of
    6 this Subpart W? The fixed portion of the
    7 allocation constitutes an anticompetitive grant
    8 of economic value to the existing plants in the
    9 state of Illinois. This subsidizes continued
    10 greater operation of higher emitting plants.
    11 Since the overall emissions are capped, the
    12 plants must invest in pollution control
    13 equipment. Increased operation of the plants
    14 means higher control costs which are passed on
    15 to the public. By subsidizing the operation of
    16 the old plants, the fixed/flex approach
    17 increases the cost of the program to the
    18 public. The new plants, on the other hand, have
    19 already invested in clean equipment. The
    20 transfer of generation from the older plants to
    21 the new plants would decrease the future control
    22 costs for the old plants and reduce the overall
    23 cost to the public.
    24 The allocation to new sources based
    L.A. REPORTING (312) 419-9292
    195
    1 only on their low permitted levels denies them
    2 any value in the trading program for their low

    3 emissions. This reduces effectiveness of the
    4 trading program in reducing the program cost.
    5 It also makes Illinois less attractive as a site
    6 for new, clean generation. Without a reliable
    7 power supply, Illinois is a less attractive
    8 place for new businesses and new economic
    9 growth. We heard a lot from existing sources
    10 that they need the fixed portion of the budget
    11 in order to assure reliability, but not allowing
    12 for growth in the state affects future liability
    13 of the system, and there needs to be some
    14 analysis on what the true impacts of that fixed
    15 portion are on the liability in the state.
    16 Illinois has recently gone through a long
    17 process of restructuring the electric generating
    18 sector.
    19 A major goal of this effort was to
    20 create open competition among electric
    21 generators. By creating a vested interest for
    22 older power plants, this rule nullifies some of
    23 that value of that process. It slows the growth
    24 of competitive power and reduces the potential
    L.A. REPORTING (312) 419-9292
    196
    1 cost savings and reliability improvements for

    2 Illinois consumers.
    3 Charging new sources for new source
    4 set-asides exacerbates the economic
    5 disincentives for new generation. It has been
    6 suggested that this policy is a logical
    7 extension of past programs such as the SO2
    8 trading program or the new source offset
    9 policies. However, the SIP Call is a new
    10 program that was designed by the EPA to include
    11 new source set-asides at no charge.
    12 In summary, our recommendations are
    13 as follows: In order to encourage the growth of
    14 clean, efficient power generation in Illinois,
    15 provide the open competition that is
    16 contemplated by electric restructuring in
    17 Illinois, and minimize the cost of the program
    18 to Illinois citizens, we recommend that the
    19 allocation process of Subpart W be substantially
    20 restored to the provision of the EPA model rule;
    21 that is, allocation to all sources based on
    22 actual heat input during the appropriate
    23 historical period;
    24 allocation to all sources at the same emissions
    L.A. REPORTING (312) 419-9292
    197

    1 rate; new source set-asides be distributed free
    2 of charge like other allowances; the new source
    3 set-aside level should be maintained at five
    4 percent throughout the program.
    5 These changes will allow the trading
    6 program to function properly and encourage the
    7 growth of clean, efficient power generation that
    8 can provide the electricity needed to support a
    9 growing Illinois economy. We appreciate -- I
    10 appreciate this opportunity to comment. We're
    11 happy to answer any questions.
    12 HEARING OFFICER GLENN: Thank you, Ms. Schoen.
    13 Do any members of the public have any questions
    14 of Ms. Schoen? Let's go to Mr. Furstenwerth and
    15 then we'll go to Mr. Wanninger.
    16 MR. FURSTENWERTH: Ms. Schoen, in the
    17 third page of your testimony, I believe you
    18 talked about the cost of NOx controls on SCR,
    19 specifically on a combined cycle gas-fired
    20 turbine-based plant.
    21 MS. SCHOEN: Uh-huh.
    22 MR. FURSTENWERTH: Does Enron have any
    23 estimates or are you aware of any installations
    24 of SCR on simple cycles which are so prevalent
    L.A. REPORTING (312) 419-9292
    198

    1 in current development in the state?
    2 MS. SCHOEN: SCR is, A, not
    3 cost-effective in cycling and, B, not
    4 particularly feasible for simple cycle because
    5 of the temperatures of the facilities.
    6 HEARING OFFICER GLENN: Mr. Wanninger?
    7 MR. WANNINGER: Ms. Schoen, in your
    8 testimony, you say there's no risk of setting a
    9 higher level for new source set-aside after the
    10 first three years of the program. You state
    11 that set-aside allowances that are not allocated
    12 are not subscribed to or allocated back to
    13 existing sources.
    14 Is it not true that they actually go
    15 into a pool and then are allocated out once that
    16 pool exceeds a certain value, which would
    17 probably be in two or three years?
    18 HEARING OFFICER GLENN: Could you repeat
    19 that? We cannot hear you.
    20 MS. SCHOEN: I'm just trying to
    21 understand the question.
    22 MR. WANNINGER: Is it not true that the
    23 set -- the allocated set-aside goes into a bank
    24 and then is only distributed once that bank
    L.A. REPORTING (312) 419-9292

    199
    1 achieves a certain value of allowances, which
    2 would be a future year so the reallocation would
    3 not occur in the same year that they were not
    4 subscribed?
    5 MS. SCHOEN: I'm talking about creating a
    6 process closer in line --
    7 HEARING OFFICER GLENN: Could you repeat
    8 that, please, Ms. Schoen? I'm sorry. The court
    9 reporter can't hear you.
    10 BOARD MEMBER FLEMAL: Face the court
    11 reporter.
    12 MS. SCHOEN: I'm advocating a new source
    13 set-aside that's closer in line with the EPA's
    14 model rule.
    15 MR. WANNINGER: Are you advocating that
    16 the reallocation of unused goes back in the same
    17 year that they're subscribed?
    18 MS. SCHOEN: Right.
    19 HEARING OFFICER GLENN: Ms.Dorge, could
    20 you please identify yourself for the record?
    21 MS. DORGE: I'm Carol Dorge. I'm
    22 interested in your thoughts on something that
    23 was said by the natural gas plants to --
    24 HEARING OFFICER GLENN: We can't hear
    L.A. REPORTING (312) 419-9292

    200
    1 you, Ms. Dorge. Could you stand up, please?
    2 Thank you.
    3 MS. DORGE: Is the standard based pounds
    4 per megawatt hours or something as opposed to --
    5 HEARING OFFICER GLENN: I'm sorry. I
    6 couldn't hear you there. If everyone could just
    7 shout, that would actually help.
    8 MS. DORGE: An output performance base
    9 standards, is that what you're talking about?
    10 Do you have any thoughts on that?
    11 MS. SCHOEN: To be honest, I haven't done
    12 that kind of analysis on how it affects simple
    13 cycle plants and peaking plants. So I wouldn't
    14 care to comment at this point.
    15 BOARD MEMBER FLEMAL: You at one point
    16 mentioned that there was a successful NOx
    17 trading market in the northeast states.
    18 Do you know at what rate NOx
    19 allowances are trading roughly?
    20 MS. SCHOEN: When the market first
    21 opened, they traded at $7,000 a ton, and that
    22 was I think a fear that that would be the cost
    23 in order to reduce NOx. Now, they trade below
    24 half that value.
    L.A. REPORTING (312) 419-9292

    201
    1 BOARD MEMBER FLEMAL: What states are
    2 involved in that trading program?
    3 MS. SCHOEN: Twelve east coast states.
    4 Maine is not. It's not Maine down to D.C.,
    5 Maryland, D.C., another ozone transport -- I
    6 think it's --
    7 BOARD MEMBER FLEMAL: I don't know that I
    8 need it on the record.
    9 MS. SCHOEN: There's 12 northeast
    10 mid-Atlantic states.
    11 BOARD MEMBER FLEMAL: That's sufficient
    12 for my purposes.
    13 Assuming that the full 22 states
    14 that are under the current NOx SIP Call also are
    15 involved in NOx trading, do you anticipate that
    16 there will be a market that's in any way similar
    17 to what's going on in those 12 states?
    18 MS. SCHOEN: I would anticipate it would
    19 be similar, yes, if enough states opt into the
    20 trading program, which it looks like they will.
    21 BOARD MEMBER FLEMAL: And you would
    22 anticipate that there will actually be
    23 allowances to be traded, that there will be
    24 places where there are unused allowances?

    L.A. REPORTING (312) 419-9292
    202
    1 MS. SCHOEN: Yes.
    2 MS. McFAWN: That trading program, maybe
    3 you can tell us a little bit more about it. I'm
    4 not familiar with it, and couple of points,
    5 like, when did it begin and is it the same type
    6 of trading program as advocated by Part 96?
    7 MS. SCHOEN: It actually began last
    8 year. It will be replaced by the NOx SIP
    9 program. So it goes out of effect when the NOx
    10 SIP program goes into effect in states where
    11 there's duplication of 12 states on the east
    12 coast. The NOx SIP program supersedes.
    13 MS. McFAWN: When that happens, do you
    14 think that the trading program will be very much
    15 different from that that they used for the past
    16 year?
    17 MS. SCHOEN: There obviously will be more
    18 sources affected and the reductions required
    19 will be greater. So I would assume the costs of
    20 the program may be more, may be higher than they
    21 are today.
    22 MS. McFAWN: The cost of administering
    23 the program?
    24 MS. SCHOEN: The cost of the emissions.

    L.A. REPORTING (312) 419-9292
    203
    1 MS. McFAWN: The cost of the emissions?
    2 MS. SCHOEN: Yes.
    3 MS. McFAWN: Do you know why the price
    4 dropped from 7,000 to half?
    5 MS. SCHOEN: I think we heard earlier
    6 utilities found ways to refire the boilers and
    7 do controls that didn't require -- do reductions
    8 that didn't require installation of controls.
    9 They found ways to, you know, switch fuels, to
    10 refire the boiler in a different way that didn't
    11 require a control technology to be put on the
    12 units.
    13 MS. McFAWN: I had some questions on a
    14 different topic.
    15 You had mentioned in your testimony
    16 that the allocations or the allowances are only
    17 provided under the EPA model if the plant
    18 actually provides the states power, okay, and
    19 under ours or Illinois' proposed one, that they
    20 will get the allowances even if they shut down,
    21 but earlier you had stated that some of the
    22 trading or the allowances available for trading
    23 come about because plants shut down older

    24 facilities and then use that credit towards
    L.A. REPORTING (312) 419-9292
    204
    1 trading. So I'm kind of befuddled.
    2 How does this work?
    3 MS. SCHOEN: Lower their emissions rate
    4 or lower their previous year's allowances. It's
    5 short-term versus kind of long-term and
    6 permanent.
    7 MS. McFAWN: So explain that in a little
    8 bit more detail for me.
    9 They shut down and then they get
    10 credit so they can then market, right?
    11 MS. SCHOEN: There are, unfortunately,
    12 kind of different emissions programs on the
    13 market today. There are emissions offset
    14 programs, and then there are the allowance
    15 trading programs.
    16 The offset program in nonattainment
    17 areas people can go and pay plants to cease
    18 operations in order to buy offsets from those
    19 plants in order to install new generation or
    20 added generation.
    21 MS. McFAWN: And is that a permanent
    22 remedy in the offset programs?

    23 MS. SCHOEN: It can be, yes.
    24 MS. McFAWN: And how does that differ
    L.A. REPORTING (312) 419-9292
    205
    1 from the allowance programs?
    2 MS. SCHOEN: The allowance programs,
    3 again, are based on a historical operation. So
    4 in the NOx program today, you're not going to
    5 continue to get allowances -- if you're not in
    6 the EPA's model rule, you're not going to
    7 continue to get allowances if you're not
    8 operating.
    9 MS. McFAWN: Would you get them for one
    10 year? Is that what you meant by short-term
    11 benefit?
    12 MS. SCHOEN: One or two years. I'm not
    13 sure.
    14 MS. McFAWN: Okay. And under Illinois,
    15 Illinois is the one proposed by the IEPA today,
    16 you don't see that happening?
    17 MS. SCHOEN: Through 2009 they have the
    18 right to buy, wholesale those Appendix F
    19 allowances.
    20 MS. McFAWN: Okay. Thank you. That was
    21 very nice to hear. The clarification was very

    22 helpful.
    23 You talked about the combined cycle
    24 plants and that it would cost $5,000 a ton or
    L.A. REPORTING (312) 419-9292
    206
    1 higher to install an SCR.
    2 Is that the type of plant Enron is
    3 operating?
    4 MS. SCHOEN: We have a simple cycle
    5 facility.
    6 MS. McFAWN: So by your testimony about
    7 these costs and what it costs an existing plant
    8 versus a new gas-fired combined cycle, are you,
    9 in essence, trying to say that the costs are the
    10 same for the new as for the old?
    11 MS. SCHOEN: No. I'm saying if a new
    12 facility had to install a control technology,
    13 the cost would be higher.
    14 MS. McFAWN: When you say that, do you
    15 mean --
    16 MS. SCHOEN: Per ton of NOx reduced.
    17 MS. McFAWN: If they had to -- but they
    18 are installing control technologies. They're
    19 just doing it at the front end, right.
    20 MS. SCHOEN: Correct. Some are, some

    21 aren't. We use load NOx technology on our
    22 facility. We didn't put a control technology
    23 SCR on our facility. It's not feasible for
    24 simple cycles.
    L.A. REPORTING (312) 419-9292
    207
    1 MS. McFAWN: But just talking about the
    2 combined cycle, when you talk about the SCR
    3 being installed, that's at the construction
    4 point, the initial construction?
    5 MS. SCHOEN: For a new plant today having
    6 to meet clean technology standards, some do,
    7 some don't. I think it depends.
    8 MS. McFAWN: What I mean is if, in fact,
    9 they installed the SCR, it's at the time they're
    10 constructing the new plant.
    11 MS. SCHOEN: I'm sorry. That cost --
    12 does that cost come from installing it at the
    13 time, yes.
    14 MS. McFAWN: So then it does -- if you
    15 have to install that technology, you're saying
    16 that's comparable to the same price that an
    17 existing facility has to pay to retrofit?
    18 MS. SCHOEN: I'm saying that an existing
    19 facility can install control technology and

    20 reduce their NOx emissions less costly than a
    21 new facility.
    22 MS. McFAWN: Oh, okay. So less costly?
    23 MS. SCHOEN: Correct.
    24 MR. RAO: On that, just a clarification.
    L.A. REPORTING (312) 419-9292
    208
    1 The statement that you made just now, does that
    2 apply only in cases where they're, you know,
    3 installing SCR, you know --
    4 MS. SCHOEN: As opposed to some other
    5 kind of --
    6 MR. RAO: Yeah. Like combustion
    7 modification for a simple cycle, will that be
    8 comparable too?
    9 MS. SCHOEN: For a new facility or for
    10 the existing facilities?
    11 MR. RAO: When you compare the add-on
    12 controls or retrofitting for existing facilities
    13 with a new facility.
    14 MS. SCHOEN: The 1500 to $5,000 a ton
    15 means that they can reduce their NOx without
    16 putting SCR on. There's some things they can do
    17 first to get to the standard in the rule. They
    18 may have to put on SCR, and their costs will

    19 increase. There's some low-hanging fruit that
    20 they can do first to reduce the NOx emissions.
    21 MR. MELAS: Ms. Schoen, on the second
    22 page of your testimony, the last sentence at
    23 that bottom paragraph, that's just before
    24 Subpart W comments, when you were reading that
    L.A. REPORTING (312) 419-9292
    209
    1 sentence, you added a phrase that's not in the
    2 printed version. You said although the air will
    3 be cleaner, the citizens of Illinois will
    4 ultimately pay the price of NOx SIP rule that
    5 disincentivizes the development of clean
    6 generation.
    7 What did you mean by that, although
    8 the air will be cleaner? Did you mean
    9 immediately, in the long run? Did you mean only
    10 in the short run?
    11 MS. SCHOEN: No. Illinois' rule, USEPA
    12 model rule, both cap NOx allowances in the state
    13 of Illinois and in the region, the affected
    14 region. So the air is going to get cleaner.
    15 It's just a matter of how much that costs us and
    16 who the winners and losers are in the process.
    17 MR. MELAS: The air will get cleaner

    18 either way?
    19 MS. SCHOEN: The air will get cleaner
    20 either way.
    21 MR. MELAS: No difference between the
    22 two?
    23 MS. SCHOEN: Not in terms -- there
    24 shouldn't be in terms of the effect on the
    L.A. REPORTING (312) 419-9292
    210
    1 environment.
    2 MR. MELAS: Or sooner or later?
    3 MS. SCHOEN: Sooner or later.
    4 MR. MELAS: If the air gets cleaner
    5 sooner, isn't that a worthy objective than
    6 getting cleaner two, three, four, five years
    7 down the line?
    8 MS. SCHOEN: I would agree with that.
    9 HEARING OFFICER GLENN: Ms. Kroack, did
    10 you have a question?
    11 MS. KROACK: I do, Ms. Schoen. You
    12 testified -- you were talking about NOx credits
    13 in the ozone transport commission as being
    14 roughly half of $7,000, which would make it
    15 3500.
    16 Are you familiar with NAP Source?

    17 MS. SCHOEN: Yes.
    18 MS. KROACK: Would it surprise you to
    19 learn that NAP Source quoting as of August 24th,
    20 2000, 1999 vintage NOx allowances at $480 a
    21 ton?
    22 MS. SCHOEN: No.
    23 MS. KROACK: Okay. And for the 2002
    24 vintage, it's $560 a ton?
    L.A. REPORTING (312) 419-9292
    211
    1 MS. SCHOEN: (Shaking head.)
    2 MS. KROACK: I just wanted to put that
    3 information before the Board.
    4 HEARING OFFICER GLENN: Ms. Kroack, what
    5 is NAP Source?
    6 MS. KROACK: NAP Source is an emissions
    7 brokerage index that brokers SO2 and NOx
    8 allowance and does other air quality type
    9 programs.
    10 MS. SCHOEN: I wasn't aware of the market
    11 value. I know it had fallen below half the last
    12 time I really looked at what the values were,
    13 but the point being that trading programs are
    14 very effective at reducing the costs of
    15 emissions reductions. For a market that opened

    16 at $7,000 a ton, because that's what the
    17 industry was worried it would cost, has now
    18 fallen down that low.
    19 HEARING OFFICER GLENN: Mr. Wanninger,
    20 did you have another question?
    21 MR. WANNINGER: Isn't it true that the
    22 ozone transport region that was referred to has
    23 a much less stringent NOx standard than what is
    24 proposed in the Illinois rulemaking?
    L.A. REPORTING (312) 419-9292
    212
    1 MS. SCHOEN: As I said, the costs will
    2 likely go up in the future as more sources are
    3 affected as reductions are created.
    4 MR. WANNINGER: And didn't you say that
    5 that program was going to be phased out with
    6 the .15 SIP Call?
    7 MS. SCHOEN: Yes.
    8 MR. WANNINGER: Would you speculate that
    9 a number of utilities are starting to install
    10 overcontrolled NOx to meet that 2003 or 2004
    11 deadline and consequently are generating lots of
    12 excess allowances which would dilute that
    13 market?
    14 MS. SCHOEN: That would be an interesting

    15 analysis. I think if you look at the back
    16 orders on control technologies today as
    17 utilities look to reduce their emissions in the
    18 future, it would be interesting to say whether
    19 there is an overcontrol happening right now or
    20 if there were more cost-effective ways to reduce
    21 emissions without --
    22 HEARING OFFICER GLENN: Could you repeat
    23 just that last part?
    24 MS. SCHOEN: I'm not -- I don't know
    L.A. REPORTING (312) 419-9292
    213
    1 enough to say whether the bulk of the reductions
    2 in NOx in the 12 area ozone transport region
    3 came from the 12 state area early reductions in
    4 anticipation of the NOx SIP or whether utilities
    5 were able to reduce their NOx emissions without
    6 installing control technologies. I do know that
    7 there's a large back order on control
    8 technologies right now as states look to come
    9 into compliance with the SIP.
    10 HEARING OFFICER GLENN: Thank you. Does
    11 anyone else have any further questions for Ms.
    12 Schoen?
    13 MS. McFAWN: I do.

    14 HEARING OFFICER GLENN: Okay. Board
    15 Member McFawn.
    16 MS. McFAWN: I hope I didn't preempt
    17 anybody there. I just didn't want you to get
    18 away, Ms. Schoen.
    19 I'm curious because you said that
    20 you're a leader in this industry. I'm just
    21 going to explore some questions I have. You
    22 talk about that -- where were your words? That
    23 we need -- that the proposed NOx SIP
    24 disincentivizes the development of clean
    L.A. REPORTING (312) 419-9292
    214
    1 generation.
    2 What are we talking about when we
    3 talk about future clean generation? Would you
    4 explain that a bit?
    5 MS. SCHOEN: I hate to be controversial,
    6 but if you look at what happened in California,
    7 and there is a shortfall in energy development
    8 in California right now, and one of the
    9 shortfalls for that is very stringent air
    10 permitting requirements.
    11 So if a new generator has an option
    12 where to build their plant, they're going to

    13 build it in a state that's got flexibility in
    14 terms of the rules.
    15 MS. McFAWN: But what kind of generation
    16 are they going to build? Right now, our base
    17 loads are coal-fired.
    18 MS. SCHOEN: Right.
    19 MS. McFAWN: And you, rightly so, say we
    20 should move towards cleaner generation. Will
    21 that involve retrofitting our coal-fired
    22 primarily or will we find our base load replaced
    23 with gas-fired or alternatives?
    24 MS. SCHOEN: I think in the short-term,
    L.A. REPORTING (312) 419-9292
    215
    1 you're going to see retrofits on coal plants. I
    2 think in the longer term, you're going to see a
    3 shift to more natural gas generation across the
    4 U.S.
    5 You know, as natural gas prices get
    6 higher and higher, does it make sense to start
    7 developing cleaner coal technology? Maybe. I
    8 mean, there's a lot of variables.
    9 MS. McFAWN: But if we have to depend on
    10 our coal-fired for the near future, sometimes I
    11 look at this rule and I think the Agency may be

    12 proposing it and took that into consideration
    13 the reliability of the coal-fired in the next
    14 five to ten years.
    15 Isn't that a valid premise for their
    16 proposal on allowances?
    17 MS. SCHOEN: Does this rule mean that
    18 coal plants are going to shut down if their
    19 costs increase? I don't know. That's a market
    20 decision. Does it mean that Illinois won't have
    21 enough power? That, again, depends on a lot of
    22 variables, what are the transmission constraints
    23 in the state, how much new generation can come
    24 on quickly. We can't build a plant in less than
    L.A. REPORTING (312) 419-9292
    216
    1 two years. I mean, there are a lot of variables
    2 in that question.
    3 MS. McFAWN: So do you think new plants
    4 could provide the same amount, those, like you
    5 mentioned, would be built in the two-year span,
    6 could they actually replace?
    7 MS. SCHOEN: Versus -- when you think
    8 about importing power as well. I just don't
    9 know what the transmission constraints are
    10 versus the market.

    11 MS. McFAWN: No. That's a whole
    12 different issue. I just --
    13 MS. SCHOEN: Can enough gas go up today
    14 to shut down a large base load coal plant?
    15 Probably not. Will that plant shut down if
    16 there's that much market need? Probably not.
    17 It's a matter of who pays. They'll just have to
    18 buy allowances for that plant. It's all an
    19 economic decision whether to run that plant and
    20 buy allowances or run the plant less and not buy
    21 as many allowances. That's a market decision
    22 and that's all we're advocating is let the
    23 market decide what's the most efficient way to
    24 get clean generation in the state.
    L.A. REPORTING (312) 419-9292
    217
    1 MS. McFAWN: You had mentioned at the
    2 outset of your testimony that you have a
    3 facility in Lincoln Energy or Lincoln is it?
    4 MS. SCHOEN: It's in Will County.
    5 MS. McFAWN: Where is it?
    6 MS. SCHOEN: Wilton County?
    7 MS. KROACK: Will.
    8 MS. SCHOEN: Will County. Sorry.
    9 MS. McFAWN: And I take it that is your

    10 single cycle?
    11 MS. SCHOEN: Yes. It's 925 megawatts.
    12 MS. McFAWN: When you talk about that
    13 plant, the new generation providing low cost
    14 reliable power and jobs and tax revenues, do you
    15 mean as an offshoot of providing the energy or
    16 do you mean the plant itself provides all that?
    17 MS. SCHOEN: Both.
    18 MS. McFAWN: How many jobs are there in
    19 the Will County plant?
    20 MS. SCHOEN: Not a lot. I think nine or
    21 ten.
    22 MS. McFAWN: I just was curious. Thank
    23 you, Ms. Schoen.
    24 HEARING OFFICER GLENN: Are there any
    L.A. REPORTING (312) 419-9292
    218
    1 other -- yes, please. In the back identify
    2 yourself.
    3 MR. HOPKINS: My name is Leonard
    4 Hopkins. Just to follow up on Mr. Melas'
    5 question, do you claim that the model rule or
    6 the Illinois rule, one, will meet -- one, will
    7 reduce the NOx quicker than the other or will
    8 they both reduce at the same time?

    9 MS. SCHOEN: In theory, they should both
    10 reduce the same amount at the same time.
    11 MR. HOPKINS: I was curious on the
    12 clarification because Mr. Melas asked the rule
    13 about whether it was quicker or sooner or later,
    14 both rules will do it at the same time; is that
    15 correct?
    16 MS. SCHOEN: Absolutely, but let's also
    17 look at the other associated emissions --
    18 HEARING OFFICER GLENN: I'm sorry.
    19 MS. SCHOEN: The other associated
    20 emissions of pollution control from coal-fired
    21 generation versus gas generation.
    22 HEARING OFFICER GLENN: Versus what
    23 generation?
    24 MS. SCHOEN: Natural gas.
    L.A. REPORTING (312) 419-9292
    219
    1 HEARING OFFICER GLENN: Thank you. Any
    2 further questions of Ms. Schoen?
    3 MR. HOPKINS: I'd like to follow up.
    4 HEARING OFFICER GLENN: Yes, Mr.
    5 Hopkins. On the comparison between the
    6 emissions control on the dual cycle gas unit
    7 compared with a coal unit, 1500 to 5,000 tons,

    8 the controls -- the actual tonnage controlled by
    9 the controls on the gas unit are quite small in
    10 comparison to the tonnage that is controlled on
    11 the coal unit; is that correct.
    12 MS. SCHOEN: This was a cost per ton.
    13 MR. HOPKINS: Right. That's on a per
    14 ton. So the actual tonnage on the gas is very
    15 small compared to the actual tonnage that's
    16 produced from a coal-fired unit; is that
    17 correct?
    18 MS. SCHOEN: I'm not sure I understand
    19 the question.
    20 MR. HOPKINS: Total tons that would be
    21 controlled by the control device on a gas unit
    22 compared to the total tons that would be
    23 controlled on a coal-fired unit --
    24 MS. SCHOEN: Yes.
    L.A. REPORTING (312) 419-9292
    220
    1 MR. HOPKINS: -- are very small?
    2 MS. SCHOEN: That's correct.
    3 MR. HOPKINS: For the amount that's
    4 controlled on the gas, the final tonnage, for
    5 instance, if it went from .15 on a coal unit to
    6 .10, that amount would be very expensive to

    7 control, wouldn't that be right, on a coal
    8 unit?
    9 MS. SCHOEN: I'm not sure what the margin
    10 will cost.
    11 HEARING OFFICER GLENN: Where the what
    12 cost?
    13 MS. SCHOEN: The margin will cost, where
    14 they shift from, you know, where you hit that
    15 point between possible --
    16 MR. HOPKINS: And there would be tonnage
    17 that would be astronomically high to you to get
    18 the lower amounts or to control a small tonnage
    19 of natural gas?
    20 MS. SCHOEN: (Shaking head.)
    21 HEARING OFFICER GLENN: Yes, Mr.
    22 Urbaszewski.
    23 MR. URBASZEWSKI: You earlier alluded to
    24 additional environmental benefits, and I can
    L.A. REPORTING (312) 419-9292
    221
    1 think of other pollutants that come out of power
    2 plants like sulfur dioxide, fine particulates,
    3 and mercury --
    4 HEARING OFFICER GLENN: We can't hear you
    5 up here.

    6 MR. URBASZEWSKI: Let me think how to
    7 rephrase the question again, you talked about
    8 additional environmental benefits that might be
    9 had from some of the new plants that might be
    10 running on gas, and I can think of several
    11 pollutants that come out of power plants, be it
    12 nitrogen oxides, but you also have sulfur
    13 dioxides, which gets oxidized as fine
    14 particulate matter and mercury.
    15 Could you give us an understanding,
    16 perhaps, of what the difference would be between
    17 a typical older coal plant and a new gas plant
    18 that might have to meet these additional
    19 regulations that you're talking about in terms
    20 of those pollutants?
    21 MS. SCHOEN: I think you hit two
    22 pollutants that are being talked about as
    23 possibly being regulated in the future, which
    24 are fine particulates and mercury, and, you
    L.A. REPORTING (312) 419-9292
    222
    1 know, what the costs are. I'm not sure coal
    2 predominately generates. The mercury are
    3 man-made mercury emissions that are generated in
    4 the U.S. Fine particulates, predominately it's

    5 from coal generation, but your question is in
    6 terms of the cost and differences between --
    7 MR. URBASZEWSKI: I was just asking about
    8 the relative difference. Would one be far less
    9 than the other?
    10 MS. SCHOEN: Yeah. I mean, natural gas,
    11 mercury is a -- mercury comes from coal, I mean,
    12 that coal generation that doesn't come from
    13 natural gas generation. Fine particulates are
    14 due to both fuels and combustion, but coal-fired
    15 generators generate more fine particulates
    16 matter. Coal-fired generators generate more
    17 fine particulates than natural gas generation.
    18 MR. URBASZEWSKI: Thank you.
    19 HEARING OFFICER GLENN: Any other
    20 questions of Ms. Schoen before I give her the
    21 award for answering the most questions today?
    22 MS. SCHOEN: I'm glad I could be so
    23 controversial at the end of the day.
    24 HEARING OFFICER GLENN: Okay. We really
    L.A. REPORTING (312) 419-9292
    223
    1 appreciate your patience. Let's take a
    2 five-minute break.
    3 (Break taken.)

    4 HEARING OFFICER GLENN: I believe Mr. Menne
    5 wanted to say some additional comments. If
    6 after Mr. Menne speaks, anyone else would like
    7 to say anything, regardless of whether you filed
    8 prefiled testimony or not, I will inquire after
    9 Mr. Menne if you'd like to do that. Mr. Menne,
    10 please begin.
    11 MR. MENNE: Thank you. First, I'd just
    12 like to say that for the questioning Ms. Schoen
    13 just got, I don't know if I really want to say
    14 anything else, but I appreciate the opportunity
    15 just for a quick clarification.
    16 One of our units, the Grand Tower
    17 unit, which is a coal-fired plant that's being
    18 converted to gas was mentioned earlier, and I
    19 just wanted to inform the Board what the
    20 situation is with regard to that plant and how
    21 it will be affected by this rule.
    22 First of all, I think for one thing,
    23 you can consider a conversion from coal to gas
    24 as a method of pollution control. Certainly,
    L.A. REPORTING (312) 419-9292
    224
    1 the Agency, I believe, considers it that way,
    2 and EPA, in their evaluations of controlling

    3 various emissions from coal-fired power plants
    4 often use it as conversions from coal to gas as
    5 a means of a pollution control and they cost it
    6 out that way.
    7 So I think for one -- in one
    8 respect, you can look at it from the standpoint
    9 of it is no different than if we were to
    10 overcontrol with some postcombustion technology
    11 or SCR on another coal-fired unit where we would
    12 get our emissions down lower than what the tons
    13 would be allocated for that unit and, therefore,
    14 create excess emissions. You can simply look at
    15 it as a different type of control technology.
    16 Secondly, while I would like to say
    17 that it might be nice if we were to be getting
    18 all kinds of tons associated with this plant
    19 because it was a coal-fired plant and we're
    20 converting it to gas and that we're going to
    21 have lots of excess allowances that we can sell
    22 on the market, in fact, that won't be the case
    23 in the situation of Grand Tower. Just looking
    24 at the numbers that I have as the rule would
    L.A. REPORTING (312) 419-9292
    225
    1 play out, Grand Tower would initially get

    2 allowances less than 300 tons of allowances in
    3 the first year of the program, 2004, and the
    4 fixed allowances would drop down to about 150
    5 tons less than that in the second phase of the
    6 program.
    7 That is not all that much -- that is
    8 fairly comparable to a new gas-fired unit we get
    9 or receive or we need to operate in the same
    10 situation. Also, because we're only getting
    11 that number of allowances for those units
    12 because it was utilized on a very low basis
    13 during the baseline period. There wasn't a lot
    14 of generation down there. After we repower this
    15 unit, it is going to be a cleaner unit. It's
    16 going to be a more efficient unit. We expect a
    17 capacity factor on that unit will be
    18 considerably higher than it was during the
    19 baseline.
    20 In fact, we will be needing more
    21 allowances than we will be getting for that unit
    22 to operate that plant after it's converted to
    23 gas. So I just didn't want the Board to be left
    24 with the impression that we were getting
    L.A. REPORTING (312) 419-9292
    226

    1 allowances as a coal-fired unit and going to get
    2 a big windfall down at Grand Tower to sell to
    3 the state. So I just wanted to clarify that. I
    4 appreciate the opportunity.
    5 HEARING OFFICER GLENN: Thank you, Mr.
    6 Menne. Does anyone have any questions of Mr.
    7 Menne's comments? Yes, Mr. Urbaszewski.
    8 MR. URBASZEWSKI: I just wanted to follow
    9 up. Maybe I just didn't hear you, but you said
    10 there's an increase in capacity at that plant?
    11 I was wondering what the increase was.
    12 MR. MENNE: The capacity factor --
    13 HEARING OFFICER GLENN: Could you please
    14 answer the question this way? That would be
    15 helpful.
    16 MR. MENNE: In other words, the
    17 utilization that we had that set the baseline
    18 for the number of tons that we got on that, the
    19 capacity factor of those units was fairly low.
    20 I don't have that number offhand, but it might
    21 have been 20, 30, or 40 percent. I don't know.
    22 After we make this conversion, we
    23 intend to have -- the capacity factor will
    24 increase. In other words, we will be generating
    L.A. REPORTING (312) 419-9292
    227

    1 many more Btus from those units after this
    2 conversion takes place.
    3 So even though it is -- it is
    4 converted to gas which is a cleaner fuel, we
    5 will actually be utilizing it much more than we
    6 did in the past. So as a result, because the
    7 tons allocations are based on a much reduced
    8 emission rate, we're actually going to be
    9 needing more tons to operate that in the future
    10 than we are being allocated.
    11 MR. URBASZEWSKI: So, in general, you're
    12 saying that it was a coal plant that wasn't
    13 utilized all that much and now it's going to be
    14 turned into a gas plant -- gas-fired plant that
    15 is going to be utilized in a much higher level?
    16 MR. MENNE: That's correct.
    17 MR. URBASZEWSKI: So in general, the
    18 plant is going to be producing a lot more
    19 electricity than it did in the past?
    20 MR. MENNE: That's correct, but it will
    21 be much more efficient.
    22 MR. URBASZEWSKI: Thank you. Are there
    23 any further questions?
    24 MR. MELAS: Mr. Menne, what's the
    L.A. REPORTING (312) 419-9292

    228
    1 megawatt production of that Grand Tower plant
    2 before and after?
    3 MR. MENNE: It was actually rated for
    4 around 200 megawatts. I don't have the actual
    5 rating on those units. I believe repowering is
    6 closer to 500 megawatts.
    7 MR. MELAS: As long as -- a thought just
    8 ran through my mind a moment ago, not directly
    9 on the point, but maybe switching from
    10 coal-fired operations to natural gas, you're to
    11 achieve this, isn't the source of natural gas
    12 finite much more so than coal, obviously? I
    13 know that.
    14 MR. MENNE: That's very definitely. The
    15 industry recently did a study on the prospect of
    16 switching a lot of coal-fired plants to natural
    17 gas and what that does to gas supply and the
    18 cost of gas and things of that nature, and
    19 there's some interesting figures in there in
    20 terms of potential increases and the cost of
    21 gas, the tremendous amount of natural gas
    22 infrastructure that would be necessary if you
    23 wanted to convert many power plants to gas.
    24 I mean, Illinois has an advantage
    L.A. REPORTING (312) 419-9292

    229
    1 because you have some major gas lines running
    2 through the state. This particular gas line is
    3 within a mile of the Grand Tower facility. So
    4 it makes it very convenient from that
    5 standpoint, but your question is a good one in
    6 that it is going to be difficult to supply a lot
    7 of different existing coal-fired plants with
    8 natural gas, and if the Board would be
    9 interested in that study, I would be happy to
    10 supply them with that.
    11 MS. McFAWN: Would you?
    12 MR. MENNE: Yes.
    13 MS. McFAWN: That would be great.
    14 MR. MELAS: Yeah. I'd like to see it.
    15 HEARING OFFICER GLENN: Thank you. Any
    16 other questions of Mr. Menne this afternoon?
    17 Yes, Mr. Urbaszewski.
    18 MR. URBASZEWSKI: I actually have a
    19 question of you. If that study is provided to
    20 the Board, can the service list also get a copy
    21 of it?
    22 HEARING OFFICER GLENN: How big is the
    23 study?
    24 MR. MENNE: It's a pretty thick study.

    L.A. REPORTING (312) 419-9292
    230
    1 HEARING OFFICER GLENN: You know what,
    2 Mr. Urbaszewski, I think we'll just have a copy
    3 available here, and you're welcome to come over
    4 and look at it.
    5 MR. MENNE: If there's an executive
    6 summary or something like that, I'd certainly be
    7 happy to do that for the service list.
    8 HEARING OFFICER GLENN: If you would give
    9 that to the service.
    10 MR. MENNE: I'll see what's available.
    11 HEARING OFFICER GLENN: We appreciate you
    12 trying to accommodate everyone. Thank you.
    13 If we do receive that study, by the
    14 way, I'll add that to the exhibit list or file
    15 it as a public comment. So it will hopefully be
    16 indicated on the web site one way or another.
    17 Any other questions of Mr. Menne?
    18 All right. Thank you very much for your
    19 additional comments. Would anyone else this
    20 afternoon like to say anything more?
    21 MR. RODRIGUEZ: Madam Hearing Officer,
    22 Gabe Rodriguez for Dynegy Midwest Generation.
    23 As you know, Mr. Diericx submitted comments as
    24 public comments for Dynegy Midwest. As I

    L.A. REPORTING (312) 419-9292
    231
    1 understand it, the Agency has some questions of
    2 him that they wanted to ask. If that's still
    3 true, Mr. Diericx is willing to -- he has
    4 nothing prepared to present to the Board today
    5 other than his written comments, but if there
    6 are questions that might be put to him, he's
    7 more than willing to answer them.
    8 HEARING OFFICER GLENN: We appreciate
    9 that, Mr. Rodriguez. For those of you, the
    10 public comment Mr. Rodriguez is referring to is
    11 available on the table. Ms. Kroack, did you
    12 have questions of Mr. Diericx?
    13 MS. KROACK: I only had one, and I just
    14 wanted to state that we're -- the Agency will
    15 respond to Mr. Diericx's public comment in our
    16 written comments, that he has alluded to what he
    17 calls considerable uncertainty regarding the NOx
    18 SIP Call and how that might affect the
    19 rulemaking, and we do not agree with the
    20 statements in there, but since they go to
    21 questions of law, we think they're best
    22 addressed in written comments.
    23 HEARING OFFICER GLENN: If you do have a

    24 question, then we -- could we swear him in
    L.A. REPORTING (312) 419-9292
    232
    1 first, please?
    2 MS. KROACK: Sure.
    3 MR. RODRIGUEZ: Could we place this in
    4 the record?
    5 HEARING OFFICER GLENN: Oh, his
    6 comments. Let's -- we already have them
    7 admitted as a public comment, but, what the
    8 heck, let's have it as an exhibit, too, for good
    9 measure. Our clerk at the Board will be very
    10 excited. We're going to admit these comments
    11 by, I'm sorry, Mr. Diericx as Exhibit No. 41.
    12 (Exhibit No. 41 marked
    13 for identification,
    14 9-26-00.)
    15 MR. DIERICX: By the way, I was sworn in
    16 at the last hearing.
    17 HEARING OFFICER GLENN: Thank you. We'll
    18 have to do it again today anyway.
    19 (Witness sworn.)
    20 HEARING OFFICER GLENN: Okay. Ms.
    21 Kroack, if you --
    22 MR. DIERICX: Before answering questions,

    23 could I make a couple opening statements?
    24 HEARING OFFICER GLENN: Please, by all
    L.A. REPORTING (312) 419-9292
    233
    1 means. Go ahead.
    2 MR. DIERICX: Again, for the record, my
    3 name is Aric Diericx. I'm employed at Dynegy
    4 Midwest Generation, Inc. I am the manager of
    5 environmental resources for DMG. I have been
    6 with DMG and its predecessor company, Illinois
    7 Power Company, for the past 21 years, and my
    8 entire career there has been involved with the
    9 environmental issues, primarily air quality
    10 management issues.
    11 I'm not going to read the written
    12 comments we submitted. I'll just briefly touch
    13 upon them to give a flavor for the Board here.
    14 The first comments were in response to a
    15 question, I believe, the Board asked at the last
    16 hearing about what other ongoing litigation was
    17 out there that might affect the Subpart W rules
    18 that are being proposed here by the Agency, and
    19 the first part of our comments were our opinion
    20 of what those key issues were and how they may
    21 eventually affect the Subpart W rules whenever

    22 the litigation is finalized.
    23 Again, it was just opinions.
    24 There's multiple legal points in these cases
    L.A. REPORTING (312) 419-9292
    234
    1 that are being discussed. This is just examples
    2 of what is going on and what could result from
    3 that litigation. We also submitted additional
    4 comments supporting the Agency's fixed/flex
    5 approach to the allocations. We thought it was
    6 a very innovative approach the Agency has taken
    7 to address the needs of both the new and
    8 existing EGUs in Illinois, and we offer that
    9 support not only as a company with existing
    10 EGUs, but also as a company with several new EGU
    11 units in the state. This support is given even
    12 though the greatest economic burden is placed on
    13 the existing EGUs in the state. Our projected
    14 compliance costs, similar to Ameren, I think,
    15 we're projecting capital compliance costs in
    16 excess of $100,000,000 to comply with the
    17 Subpart W SIP Call rules, and of that
    18 $100,000,000, all of that is earmarked for our
    19 existing EGU sources. We do not reject any
    20 additional capital is going to be expended upon

    21 our new EGUs sources for the purposes of the SIP
    22 Call rule, and the reason for that is because
    23 new EGUs for us and possibly other new EGU
    24 sources in the state have made their
    L.A. REPORTING (312) 419-9292
    235
    1 expenditures for NOx controls due to the best
    2 available control technology requirements of the
    3 PSD program and also the new source performance
    4 standards that apply to those new EGUs.
    5 So for that reason, we are
    6 projecting all of our NOx compliance costs for
    7 the existing EGUs and none for our new EGUs,
    8 and, again, that trend may be similar for other
    9 units in the state. We also support in our
    10 comments the heat input based allocation scheme
    11 in the Agency rules. This is consistent with
    12 the federal EPA Acid Rain program. It's one
    13 sources and regulators have dealt with for many
    14 years and it's effective, and we think that
    15 should continue.
    16 We submitted some comments also on
    17 the growth factor that several other people
    18 identified in their testimony. The growth
    19 factor we feel is driven by the economics within

    20 the state and the weather conditions from season
    21 to season. In our testimony, we identified that
    22 actual 1998 heat input was approximately ten
    23 percent higher than the 2007 projected heat
    24 input from the USEPA IPM model, and if, in fact,
    L.A. REPORTING (312) 419-9292
    236
    1 the heat input projections for EGUs in Illinois
    2 is low in 2007, then also the percent NOx
    3 reductions that need to be made by the existing
    4 EGUs is also being underestimated, and if those
    5 control -- amounts of controls are
    6 underestimated, the control costs are going to
    7 be greater than what's indicated in the record.
    8 I feel this is important because of
    9 the Board's inquiry at the last hearing about
    10 how the cost of controls on EGUs compared to the
    11 cost of other ozone season controls from other
    12 programs that are currently in Illinois.
    13 Finally, we offered some comments also about the
    14 early reduction credit program. We are
    15 supportive of the Agency's proposal to award
    16 early reduction credits for the 2001/2002
    17 control seasons and the rest of the early year
    18 reduction credits awarded in 2003 if that

    19 flexibility is, in fact, provided by the SIP
    20 Call rules.
    21 HEARING OFFICER GLENN: Thank you.
    22 Ms. Kroack, why don't you proceed with your
    23 question, and then we'll open it up to anyone
    24 else that may have a question on those
    L.A. REPORTING (312) 419-9292
    237
    1 comments?
    2 MS. KROACK: Sure. Mr. Diericx, you
    3 stated that USEPA severely underestimated the
    4 growth rate for EGUs in calculating the base
    5 2007 budget, and you went on to give the 1998
    6 seasonal heat input for the existing EGUs
    7 450,495,863 million Btus, and that the 2007 base
    8 budget for these same units was 411,298,433
    9 Btus.
    10 Do you know what the heat input for
    11 these units was in 1999?
    12 MR. DIERICX: For these exact units, no,
    13 I do not.
    14 MS. KROACK: Would it surprise you to
    15 learn it was 418,258,674 million Btus?
    16 MR. DIERICX: That number sounds like a
    17 number less than the 1998 ozone season heat

    18 input, but a number still greater than the 2007
    19 projected heat input.
    20 MS. KROACK: Correct. But it's a
    21 downward adjustment from the 1998 figure.
    22 MR. DIERICX: And I think I indicated in
    23 my opening comments that that number will vary
    24 year to year based on economic conditions and
    L.A. REPORTING (312) 419-9292
    238
    1 whether that drives the heat input for the
    2 state.
    3 MS. KROACK: That was our comment. Thank
    4 you.
    5 HEARING OFFICER GLENN: Thank you, Ms.
    6 Kroack. Does anyone else have any questions of
    7 Mr. Diericx?
    8 BOARD MEMBER FLEMAL: We have over our
    9 three days together heard many times a
    10 suggestion that the eight percent growth factor
    11 is substantially underestimated of what is and
    12 can be anticipated to happen in Illinois.
    13 What I'm not sure I've heard anybody
    14 say, and I offer you the opportunity to give me
    15 an answer, is what do we do about that?
    16 MR. DIERICX: I do not have a

    17 recommendation on how to adjust that. There is,
    18 I think we mentioned at the last hearing,
    19 ongoing litigation. I think it's short-handed.
    20 The litigation gets the technical amendments,
    21 SIP Call. That might provide some relief for
    22 that. We won't know that for several months
    23 until that case is decided.
    24 I think the point of my comments was
    L.A. REPORTING (312) 419-9292
    239
    1 that if the growth number is underestimated, the
    2 control costs for the existing EGUs will be
    3 greater, and just to properly reflect that fact
    4 in the record when the Board compares these
    5 costs to other ozone control programs.
    6 MR. MILLER: Just to give you an example,
    7 Indiana has the same small fossil capacity as
    8 Illinois. There is 47,000.
    9 HEARING OFFICER GLENN: 47,000 tons?
    10 MR. MILLER: Yes.
    11 HEARING OFFICER GLENN: Would anyone else
    12 like to ask a question of Mr. Diericx? Okay.
    13 Thank you very much. We appreciate your time.
    14 Would anyone else present this
    15 afternoon like to say anything further? This is

    16 sort of a going once, going twice since we will
    17 not be having our third hearing.
    18 Okay. If you'll bear with me for
    19 just a moment then. I just want to reiterate
    20 that we will not be having the third hearing
    21 scheduled for October 10th. I will put out and
    22 send to all of you on the notice and service
    23 lists a hearing officer order explaining the
    24 precise deadlines for public comment, but as it
    L.A. REPORTING (312) 419-9292
    240
    1 stands right now, we anticipate public comments
    2 will be due by Friday, October 13th, at 4:30 in
    3 the Board's Chicago office.
    4 Please keep in mind if you file a
    5 public comment, you are obligated to file an
    6 original and nine copies with the Board as well
    7 as serve copies of public comments on the
    8 members of the service list. Our transcript of
    9 today's proceeding will hopefully be posted on
    10 our Board's web site next Tuesday, October 3rd.
    11 The Board's web site is
    12 www.ipcb.state.il.us. You want to go to the
    13 rules and regulations section and then click on
    14 the transcript for Docket R01-9. Are there any

    15 other matters that need to be addressed at this
    16 time? Ms. Kroack, do you have anything to add?
    17 MS. KROACK: No. Thank you.
    18 HEARING OFFICER GLENN: Well, then on
    19 behalf of the Pollution Control Board, I would
    20 sincerely like to thank all of you present here
    21 today that have contributed so greatly to the
    22 development of this rule, and we look forward to
    23 tackling everything you have given us now to put
    24 something together for our November 16th Board
    L.A. REPORTING (312) 419-9292
    241
    1 meeting.
    2 Again, thank you to the Agency for
    3 all of your time and for all of you making the
    4 trip up from Springfield today, and thank you
    5 members of the regulated community for your much
    6 appreciated attention to this matter and the
    7 environmental community as well. Thank you.
    8 Have a nice afternoon.
    9 (Whereupon, these were all
    10 the proceedings held in the
    11 above-entitled matter.)
    12
    13

    14
    15
    16
    17
    18
    19
    20
    21
    22
    23
    24
    L.A. REPORTING (312) 419-9292
    242
    1 STATE OF ILLINOIS )
    ) SS.
    2 COUNTY OF C O O K )
    3
    4 I, GEANNA M. IAQUINTA, CSR, do
    5 hereby state that I am a court reporter doing
    6 business in the City of Chicago, County of Cook,
    7 and State of Illinois; that I reported by means
    8 of machine shorthand the proceedings held in the
    9 foregoing cause, and that the foregoing is a
    10 true and correct transcript of my shorthand
    11 notes so taken as aforesaid.
    12

    13
    ______________________________
    14 Geanna M. Iaquinta, CSR
    Notary Public, Cook County, IL
    15 Illinois License No. 084-004096
    16
    17 SUBSCRIBED AND SWORN TO
    before me this_____day
    18 of_______, A.D., 2000.
    19 _______________________
    Notary Public
    20
    21
    22
    23
    24
    L.A. REPORTING (312) 419-9292

    Back to top