1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2 WHITE CAP, INC., )
)
3 Petitioner, )
)
4 vs. ) No. PCB 98-24
) (Variance)
5 ILLINOIS ENVIRONMENTAL )
PROTECTION AGENCY, )
6 )
Respondent. )
7
8 The following is a transcript of a
9 variance hearing held in the above-entitled matter
10 taken
stenographically by LISA H. BREITER, CSR,
11 RPR, CRR, a notary public within and for the
12 County of DuPage and State of Illinois before
13 MICHAEL L. WALLACE, Hearing Officer, at the
14 Thompson Center, 100 West Randolph Street, Room
15 11-500, Chicago, Illinois, on the 1st day of
16 October 1997 commencing at 1:30 o'clock p.m.
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L.A. REPORTING - (312) 419-9292
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1 There were present during the
2 taking of this hearing the following counsel:
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GARDNER, CARTON & DOUGLAS, by
4 MR. RICHARD M. SAINES and
MS. TRACEY L. MIHELIC,
5 Quaker Tower
321 North Clark Street
6 Chicago, IL 60610-4795
(312) 644-3000
7 (312) 644-3381 Fax
8 On behalf of the Petitioner;
9
ILLINOIS ENVIRONMENTAL PROTECTION
10 AGENCY, by
MS. CHRISTINA L. ARCHER,
11 2200 Churchill Road
P.O. Box 19276
12 Springfield, IL 62794-9276
(217) 524-3333
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On behalf of the Respondent.
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ALSO PRESENT:
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MR. RALPH L. FASANO
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1 I N D E X
2 PAGE
3 WITNESSES
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RALPH L. FASANO
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DIRECT EXAMINATION BY MR. SAINES.............. 10
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E X H I B I T S
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(None marked by reporter.)
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1 HEARING OFFICER WALLACE: Pursuant to
2 the direction of the Illinois Pollution Control
3 Board, I now call docket PCB 9824. This is the
4 variance petition of White Cap, Inc., vs. The
5 Illinois Environmental Protection Agency. May I
6 have appearances for the record, please.
7 MS. MIHELIC:
Tracey Mihelic from
8 Gardner, Carton & Douglas with Ralph
Fasano.
9 MR. SAINES: And Richard
Saines from
10 Gardner, Carton & Douglas.
11 MS. ARCHER: Christine Archer from the
12 Illinois Environmental Protection Agency.
13 HEARING OFFICER WALLACE: Let the record
14 reflect there are no other appearances at today's
15 date. Are there any preliminary matters?
16 MS. MIHELIC: Not at this time.
17 HEARING OFFICER WALLACE: Ms. Archer?
18 MS. ARCHER: No.
19 HEARING OFFICER WALLACE: You have a
20 witness today?
21 MS. MIHELIC: We have one witness.
22 HEARING OFFICER WALLACE: Mr.
Fasano,
23 would you please raise your right-hand.
24 (Witness sworn.)
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1 HEARING OFFICER WALLACE: You may
2 proceed.
3 MS. MIHELIC: I'd like to start with
4 just a brief opening statement and some clarifying
5 points of the Agency's recommendation I believe
6 that was filed on Friday, and then we'll go into
7 directing the witness with some questions.
8 White Cap is seeking an extension of
9 the variance granted by the Board in PCB 96-191.
10 White Cap's variance expires at the time that
11 White Cap obtains the Clean Air Act Permit Program
12 permit also called a CAAPP permit or January 12th,
13 1998, whichever is earlier.
14 The board set January 12th, 1998, as
15 the deadline since that was the latest date which
16 the Illinois Environmental Protection agent gave
17 the Agency time to issue White Cap a CAAPP permit
18 as established during the variance proceeding in
19 PCB 96-191. White Cap needs either a state
20 implementation plan revision to Illinois'
21 reasonably available control technology rules or
22 CAAPP permit allowing White Cap to use the
23 alternative capture efficiency test methods set
24 forth in
USEPA's guidance memorandum dated
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1 February 7th, 1995, to comply with Illinois' RACT
2 rules.
3 The Agency does not intend to submit a
4 SIP revision, and therefore, the only relief
5 available for White Cap is through a final
6 effective CAAPP permit. Due to the proposal and
7 pending adoption of the Emissions Reduction Market
8 System rules, the IEPA does not intend to issue
9 CAAPP permits to major sources in the Chicago area
10 until after
IEPA's established ERMS emission
11 baselines.
12 Since ERMS applications are not due
13 until January 1st, 1998, the IEPA does not expect
14 to issue sources in the Chicago area CAAPP permits
15 until after March of 1998. Therefore, sources
16 will not be able to obtain final effective CAAPP
17 permits till sometime thereafter. Based upon
18 discussions with the IEPA, it anticipates that
19 White Cap will have a final effective CAAPP permit
20 by September 1998.
21 White Cap has no control over when it
22 will obtain a final effective CAAPP permit. As
23 set forth in the previous proceedings before the
24 Board, it is technically or economically
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1 infeasible for White Cap to comply with Illinois'
2 RACT rules regarding capture efficiency testing
3 without an extension of the variance. Until such
4 time that White Cap has a final effective CAAPP
5 permit, there is no technical or economical method
6 for White Cap to comply with Illinois' RACT rules.
7 White Cap needs a CAAPP permit in order
8 to comply with the regulations. This hardship is
9 not self-imposed. White Cap is therefore seeking
10 an extension of its current variance until White
11 Cap obtains a final effective CAAPP permit for
12 September 1998, whichever is earlier. As set
13 forth in its petition, the granting of this
14 variance will not have a negative environmental
15 impact.
16 White Cap believes it is in compliance
17 with the underlying regulations. It simply cannot
18 demonstrate compliance. In addition, White Cap
19 has reduced emissions and is continuing to do so
20 by replacing its existing lines with permanently
21 totally enclosed lines. As a result, White Cap
22 has already reduced emissions by over 80 tons per
23 year, and when its modernization and emission
24 reduction program is complete, it will have
L.A. REPORTING - (312) 419-9292
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1 reduced emissions by approximately 300 tons per
2 year.
3 To make some clarifications for the
4 record, upon the Agency's recommendation, in its
5 recommendation in paragraph 23(1), the Agency
6 states or refers to applicable lines. White Cap
7 would like to clarify at this time that its
8 understanding is this means any lines which are
9 not permanently totally enclosed. In paragraph 15
10 of its recommendation, IEPA states that White Cap
11 assumed 100 percent capture efficiency.
12 This assumption arises from
USEPA's
13 guidance memorandum in which USEPA directed
14 sources such as White Cap to assume 100 percent
15 capture efficiency when certifying compliance with
16 overall efficiency of its lines. Also in
17 paragraph 15 of the recommendation, the Agency
18 states that annual emissions in 1995 and 1996
19 based upon a computer program for White Cap are
20 128 and 150 tons respectively.
21 Due to the pending ERMS rulemaking,
22 White Cap is in the process of reviewing these
23 annual emissions and will likely be revising these
24 emission estimates when it submits it's ERMS
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1 application, and last, the Agency sets forth in
2 its recommendation a proposal that White Cap be
3 required to amend its CAAPP permit application.
4 White Cap is willing to amend its CAAPP
5 permit application to include alternative capture
6 efficiency test methods. White Cap, however, is
7 requesting until January 31st, 1998, to do so
so
8 that White Cap may make one revision to its CAAPP
9 permit application incorporating all changes that
10 need to be made to the application arising from
11 its modernization program.
12 The Board should also remember that
13 White Cap's ERMS application is due January 1st,
14 1998, which White Cap assumes will take a
15 significant amount of time to complete, and White
16 Cap has holiday shutdown for the last two weeks of
17 the year of each year, that being typically from
18 December 20th -- December 15th or 20th until
19 December 30th of each year, and then I think Rick
20 Saines is going to go forward and ask the witness,
21 Ralph
Fasano, some questions.
22 HEARING OFFICER WALLACE: Before you
23 begin, any remarks, Ms. Archer?
24 MS. ARCHER: No, the clarifications are
L.A. REPORTING - (312) 419-9292
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1 amenable to the Illinois EPA. I would like to
2 state, though, for the record if White Cap cannot
3 amend its CAAPP application by January 31st, 1998,
4 as soon as the modernization program -- each step
5 becomes complete thereafter, it's fine just so we
6 have everything on file with the application
7 including ERMS so the Agency can have enough time
8 to complete its review of White Cap's CAAPP
9 application and so White Cap can obtain its final
10 effective CAAPP permit by September of 1998.
11 HEARING OFFICER WALLACE: Have you
12 completed?
13 MS. ARCHER: That's further
14 clarifications, yes.
15 HEARING OFFICER WALLACE: Mr.
Saines,
16 you may proceed.
17 MR. SAINES: Thank you.
18 RALPH L. FASANO,
19 called as a witness herein, having been first duly
20 sworn, was examined and testified as follows:
21 DIRECT EXAMINATION
22 BY MR. SAINES:
23 Q Please state your name for the record.
24 A Ralph
Fasano.
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1 Q What is your position with White Cap,
2 Incorporated?
3 A The corporate manager of environmental
4 affairs.
5 Q Have you read White Cap's petition for a
6 variance that was filed with the Board on August
7 1st, 1997?
8 A Yes.
9 Q With the exception of the variance
10 termination date requested in that petition, is
11 that petition true and accurate?
12 A Yes.
13 Q Have you read White Cap's motion to
14 change the effective date of the variance which
15 was filed with the Board on September 12th, 1997?
16 A Yes, I have.
17 Q Is it true that White Cap's motion to
18 change the effective date of the variance in that
19 motion White Cap requested that the Board extend
20 the variance until White Cap obtains a final
21 effective CAAPP permit or September 7, 1998,
22 whichever is earlier?
23 A Yes.
24 Q Is it your belief, based on discussions
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1 with the Agency, that White Cap should have the
2 final effective CAAPP permit by September 7, 1998?
3 A Yes.
4 Q If White Cap does not obtain a final,
5 effective CAAPP permit by September 7, 1998, is it
6 your understanding that White Cap may need to seek
7 additional relief from the capture efficiency
8 testing requirements until such time as White Cap
9 obtains a final effective CAAPP permit?
10 A Yes.
11 Q Have you read the Agency's draft
12 recommendation in this matter?
13 A Yes, yes, I have.
14 Q Do you agree that the granting of White
15 Cap's petition may have an environmental impact on
16 the ozone air quality in the Chicago
17 non-attainment area?
18 A No, no, I don't.
19 Q Why not?
20 A Well, because White Cap has always
21 believed that we're in compliance, but we simply
22 could not demonstrate it because of the capture
23 efficiency test methods, the whole reason for our
24 variance.
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1 If anything, White Cap truly believes
2 that we've had a positive impact, not a negative
3 impact on air quality because we have been
4 proceeding with the modernization program, and by
5 granting this variance, we can continue to
6 dedicate our time toward, you know, continuing the
7 modernization program without these kind of
8 disturbances, so to speak, but also for the
9 record, I want it to be known that the
10 modernization program has been going on and even
11 throughout the whole process of the variance that
12 we've had for so many years, we have been making
13 improvements all along similar to what
Tracey has
14 said earlier.
15 Q Thank you. Do you agree that White
16 Cap's hardship in this matter is self-imposed?
17 A No, no, I don't.
18 Q Is it your opinion that the hardship, if
19 any, which arises is due to the lack of a CAAPP
20 permit?
21 A True, yeah.
22 Q Is it your understanding that White Cap
23 cannot perform capture efficiency testing until it
24 obtains a final effective CAAPP permit allowing it
L.A. REPORTING - (312) 419-9292
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1 to use the alternative capture test efficiency
2 methods?
3 A Yes.
4 MR. SAINES: I have no more questions.
5 MS. ARCHER: I have a clarification.
6 Mr.
Fasano, you stated that you reviewed a draft
7 of the agency recommendation in this case, is that
8 correct?
9 THE WITNESS: Correct.
10 MS. ARCHER: Just for the record, I'd
11 like to state that that would be the draft that I
12 faxed to Ms.
Mihelic last Thursday afternoon which
13 was September 25th. Ms.
Mihelic did receive the
14 final recommendation, I believe, on Monday, at
15 which there was no changes between the drafts and
16 the final.
17 MS. MIHELIC: For clarification, I know
18 there are no changes. I have not reviewed a
19 final.
20 MS. ARCHER: For the record, there are
21 no changes between the draft and the final.
22 That's all I have of Mr.
Fasano.
23 HEARING OFFICER WALLACE: All right.
24 Thank you, Mr.
Fasano. Anything more, Mr.
Saines?
L.A. REPORTING - (312) 419-9292
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1 MR. SAINES: Nothing more.
2 HEARING OFFICER WALLACE: Let's go off
3 the record.
4 (Discussion off the record.)
5 HEARING OFFICER WALLACE: Ms. Archer.
6 MS. ARCHER: Thank you. Good afternoon.
7 The Illinois EPA stands by its recommendation
8 filed in this matter. The Illinois EPA would
9 recommend that the Illinois Pollution Control
10 Board grant White Cap's variance extension in PCB
11 98-24 until White Cap obtains its final effective
12 Clean Air Act Permit Program or CAAPP permit until
13 September 7th, 1998, whichever is sooner.
14 Without belaboring the facts in this
15 case, it has quite a long and extensive history,
16 and it's been documented in three previous
17 variance proceedings. The underlying issue in
18 this case is when White Cap and how White Cap is
19 required to conduct capture efficiency testing.
20 As laid out in PCB 96-191, the Board recognized
21 that White Cap needed a federally-enforceable
22 permit before they could conduct this capture
23 efficiency testing. The Illinois EPA believes it
24 can issue White Cap its CAAPP permit by September
L.A. REPORTING - (312) 419-9292
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1 7, 1998, and will stand by that date accordingly.
2 MS. ARCHER: Thank you.
3 HEARING OFFICER WALLACE: Thank you,
4 Ms. Archer. Just for point of clarification, is
5 White Cap asking the Board really just to extend
6 the prior variance?
7 MS. MIHELIC: It's asking the Board to
8 extend its prior variance and actually to slightly
9 amend the language so the variance is until it
10 obtains a final effective CAAPP permit and not
11 just until the Agency issues a CAAPP permit, which
12 I believe is the previous language.
13 So that when the Agency issues a CAAPP
14 permit, it is not final, nor is it truly effective
15 for sometime thereafter. So we're asking that
16 language be modified to say until White Cap
17 obtains a final effective CAAPP permit or
18 September 7th, 1998, since that's the date
19 everybody believes White Cap will have a final
20 effective CAAPP permit.
21 HEARING OFFICER WALLACE: I'm looking at
22 the order in 191 and the first conditions,
23 variance shall terminate upon the date upon the
24 which the Agency issues White Cap a
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1 federally-enforceable state operating permit
2 pursuant to the Clean Air Act Permit Program or 90
3 days following the date Illinois revises its state
4 implementation plan to include alternative test
5 methods,
blah, blah, blah. That's the condition
6 you want changed?
7 MS. MIHELIC: Right, to state until
8 White Cap obtains a final effective Clean Air Act
9 Permit Program permit, and because we've
10 determined that Illinois will not amend its SIP
11 provision, I don't believe that that language is
12 any longer necessary.
13 HEARING OFFICER WALLACE: So we would
14 take out the sentence "or 90 days following" and
15 then we would change the date, but we would leave
16 the words "but no later than September."
17 MS. MIHELIC: 7.
18 HEARING OFFICER WALLACE: 7.
19 MS. ARCHER: Right.
20 HEARING OFFICER WALLACE: Are there any
21 other conditions, changes that have been
22 requested?
23 MS. MIHELIC: I think you requested that
24 it require White Cap to amend its CAAPP permit
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1 application to include a request to use the
2 alternative capture efficiency test methods that's
3 not set forth in that variance.
4 MS. ARCHER: Condition 2, I believe
5 96-191, "White Cap shall test its applicable lines
6 for capture efficiency to either of the seven
7 proposed test methods," is that what that says?
8 HEARING OFFICER WALLACE: Yes.
9 MS. ARCHER: We would like that to still
10 be in there.
11 MS. MIHELIC: Still be in there, right.
12 HEARING OFFICER WALLACE: Was there
13 something that you wanted added?
14 MS. ARCHER: I did. We are modifying
15 that White Cap would admit its compliance schedule
16 in its CAAPP application by January 31st, 1998.
17 That would be a condition as well as the previous
18 record keeping and reporting.
19 MS. MIHELIC: And it's set forth in what
20 paragraph because it was not in the previous Board
21 order.
22 MS. ARCHER: It's paragraph 23 in our
23 recommendation, and I believe it was in the
24 Board's order of November 7th in the text, but it
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1 wasn't in the actual order.
2 HEARING OFFICER WALLACE: So on 24 -- on
3 your recommendation --
4 MS. ARCHER: Yes.
5 HEARING OFFICER WALLACE: -- paragraph
6 24 with numerical 2 and 3, would you ask that
7 those be added --
8 MS. ARCHER: Yes.
9 HEARING OFFICER WALLACE: -- if they're
10 not already in?
11 MS. ARCHER: Those should already be in
12 there. Those are conditions from the 92155.
13 HEARING OFFICER WALLACE: All right,
14 you're correct.
15 MR. FASANO: I have a question
16 regarding --
17 HEARING OFFICER WALLACE: So that's all
18 that you have?
19 MS. ARCHER: Correct.
20 HEARING OFFICER WALLACE: Okay. And
21 then both parties are agreeable that the Board can
22 administratively adopt the record in 96-191?
23 MS. ARCHER: Yes.
24 MS. MIHELIC: Yes.
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1 HEARING OFFICER WALLACE: And White Cap
2 is agreeable to waiving the decision deadline to
3 December 4th, 1997?
4 MS. MIHELIC: Yes.
5 HEARING OFFICER WALLACE: Even though
6 we've put it on the record, the office does like a
7 letter. Thank you. Anything further from White
8 Cap?
9 MS. MIHELIC: Nothing further.
10 HEARING OFFICER WALLACE: The Agency?
11 MS. ARCHER: No.
12 HEARING OFFICER WALLACE: All right.
13 MS. MIHELIC: We appreciate the Board's
14 patience in this matter.
15 HEARING OFFICER WALLACE: We certainly
16 try to be patient, I guess. Thank you, there will
17 be nothing further. This hearing is closed, thank
18 you.
19 (Which were all the proceedings
20 had in the above-entitled
21 hearing.)
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L.A. REPORTING - (312) 419-9292
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1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2 LISA H. BREITER, CSR, RPR, CRR, being
3 first duly sworn, on oath says that she is a court
4 reporter doing business in the City of Chicago;
5 that she reported in shorthand the proceedings at
6 the taking of said hearing and that the foregoing
7 is a true and correct transcript of her shorthand
8 notes so taken as aforesaid, and contains all of
9 the proceedings had at said hearing.
10
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12
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LISA H. BREITER, CSR, RPR, CRR
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L.A. REPORTING
79 West Monroe Street
15 Suite 1219
Chicago, Illinois 60603
16 (312) 419-9292
(312) 419-9294 Fax
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