1 
 
 
 
          1       BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 
                                  April 12, 2005 
          2    
              IN THE MATTER OF:                ) 
          3                                    ) 
              PROPOSED AMENDMENTS TO           ) R05-19 
          4   EXEMPTIONS FROM STATE PERMITTING ) (Rulemaking-Air) 
              REQUIREMENTS (35 ILL. ADM. CODE  ) 
          5   201.146)                         ) 
 
          6    
 
          7                Transcript of proceedings held in 
 
          8   the hearing of the above-entitled matter, taken 
 
          9   stenographically by Stacy L. Lulias, CSR, before 
 
         10   Amy C. Antoniolli, Hearing Officer, at the 
 
         11   James R. Thompson Center, 100 West Randolph Street, 
 
         12   Room 9-34, Chicago, Illinois, on the 12th day 
 
         13   of April, A.D., 2005, commencing at 10:22 a.m. 
 
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                        L.A. REPORTING (312) 419-9292 
 
 
 
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          1   A P P E A R A N C E S: 
 
          2    
                   ILLINOIS POLLUTION CONTROL BOARD, 
          3        James R. Thompson Center 
                   100 West Randolph Street 
          4        Suite 11-500 
                   Chicago, Illinois  60601 
          5        (312) 814-3665 
                   BY:  MS. AMY C. ANTONIOLLI, Hearing Officer 
          6             MR. NICHOLAS J. MELAS, Board Member 
                        MS. ANDREA S. MOORE, Board Member 
          7             MS. ALISA LIU, P.E., Technical Unit 
 
          8                -AND- 
 
          9        ILLINOIS POLLUTION CONTROL BOARD, 
                   2125 South First Street 
         10        Champaign, Illinois  61820 
                   (217) 278-3109 
         11        BY:  MR. THOMAS E. JOHNSON, Board Member 
 
         12    
              ALSO PRESENT: 
         13    
 
         14   MR. ROBERT W. BERNOTEIT, IEPA 
              MS. STEFANIE N. DIERS, IEPA 
         15   MS. LaDONNA DRIVER, Hodge, Dwyer, Zeman 
              MS. ANNET C. GODIKSEN, IEPA 
         16   MS. KATHERINE D. HODGE, IERG 
               MR. ALAN JIRIK, CHMM, CornProducts International 
         17   MR. CHARLES F. MATOESIAN, IEPA 
              MR. ROBERT A. MESSINA, IERG 
         18   MR. BRUCE NILLES, Sierra Club 
              MS. VERENA OWEN, Sierra Club 
         19   MS. PATRICIA F. SHARKEY, Mayer, Brown 
              MR. DONALD E. SUTTON, P.E., IEPA 
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                        L.A. REPORTING (312) 419-9292 
 
 
 
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          1            HEARING OFFICER ANTONIOLLI:  Good morning, 
 
          2   everyone and welcome to the Illinois Pollution 
 
          3   Control Board.  My name is Amy Antoniolli and I have 
 
          4   been assigned hearing officer to this rulemaking. 
 
          5                The rulemaking is captioned in the 
 
          6   matter of Exemptions From State Permitting 
 
          7   Requirements 35 Illinois Administrative Code 
 
          8   201.146, which the Board has docketed R05-19. 
 
          9                In this proceeding, the Agency is 
 
         10   seeking to add four categories to the permit 
 
         11   exemption from State air permitting requirements in 
 
         12   Section 201.146 of the Board's air rules. 
 
         13                This rulemaking was filed on 
 
         14   February 22, 2005, jointly by the Illinois 
 
         15   Environmental Protection Agency and the Illinois 
 
         16   Environmental Regulatory Group. 
 
         17                The Board accepted the proposal for 
 
         18   hearing on March 17, 2005.  Today is the first 
 
         19   hearing.  A second hearing is scheduled for June 
 
         20   14th, 2005, to take place at ten in the morning in 
 
         21   the Board's offices in Springfield. 
 
         22                To my left is Board Member Nicholas 
 
         23   Melis, who is the Board Member assigned to this 
 
         24   matter.  To the left of Member Melis is Member 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                        4 
 
 
 
          1   Thomas Johnson, and to my right is Board Member 
 
          2   Andrea Moore.  Also with us today is Alisa Liu from 
 
          3   the Technical Unit. 
 
          4                And if you'd like to testify today and 
 
          5   you haven't told me yet, please let me know.  We 
 
          6   have today extra copies of the service list and the 
 
          7   notice list up here, and I believe Mr. Matoesian 
 
          8   from the Agency has extra copies of the proposal and 
 
          9   of the prefiled testimony that's been submitted 
 
         10   already in this rulemaking. 
 
         11                Today's proceeding is governed by the 
 
         12   Board's procedural rules.  All of the information 
 
         13   that is relevant and not repetitious or privileged 
 
         14   will be admitted into the record. 
 
         15                We will begin with the testimony of two 
 
         16   witnesses that have prefiled testimony in this 
 
         17   matter, Ms. Katherine Hodge, on behalf of the 
 
         18   Illinois Environmental Regulatory Group, and 
 
         19   Mr. Donald E. Sutton, on behalf of the Illinois 
 
         20   Environmental Protection Agency, followed by any 
 
         21   questions for both of those witnesses. 
 
         22                Please note that any questions posed by 
 
         23   Board Members or staff are designed to help develop 
 
         24   a more complete record for the Board's decision and 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                        5 
 
 
 
          1   do not reflect any bias.  And then after that, 
 
          2   anyone else can testify regarding the proposal. 
 
          3                Like all witnesses, those who wish to 
 
          4   testify will be sworn in and may be asked questions 
 
          5   about their testimony.  We'll conclude with a few 
 
          6   procedural items. 
 
          7                And before we begin, Mr. Melis, do you 
 
          8   have anything to add? 
 
          9            BOARD MEMBER MELIS:  Just thank everybody 
 
         10   for coming, and we anticipate getting further 
 
         11   information on this proposal. 
 
         12            HEARING OFFICER ANTONIOLLI:  We'll then 
 
         13   turn it over to the proponent for opening 
 
         14   statements, if any. 
 
         15            MR. MATOESIAN:  Charles Matoesian 
 
         16   for the Illinois Environmental Protection Agency.  I 
 
         17   would just like to say briefly, with me here today 
 
         18   is Mr. Don Sutton, manager of the permit section, 
 
         19   who will be testifying, but also Mr. Bob Bernoteit, 
 
         20   who is the FESOP/state permit unit manager in the 
 
         21   permit section, and he can answer any questions that 
 
         22   are available.  And also, Annet Godiksen, who is 
 
         23   another attorney for the Agency is present as well. 
 
         24   But that's all I really wanted to mention. 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                        6 
 
 
 
          1            HEARING OFFICER ANTONIOLLI:  Okay, thank 
 
          2   you.  Go ahead. 
 
          3            MS. DRIVER:  I'm LaDonna Driver with 
 
          4   Hodge, Dwyer, Zeman, counsel for the Illinois 
 
          5   Environmental Regulatory Group.  We are co-proponent 
 
          6   with the Illinois EPA. 
 
          7                We will be presenting testimony today 
 
          8   from Katherine Hodge, who is the executive director 
 
          9   of ERG.  Also with us is Alec Messina, who is 
 
         10   general counsel for ERG, and Alan Jirik, who is the 
 
         11   director of regulatory affairs for CornProducts 
 
         12   International.  CornProducts is a member of ERG, and 
 
         13   Alan is also on the executive committee of ERG and 
 
         14   has been involved in the discussions we've had to 
 
         15   date with the Illinois EPA on this proposal. 
 
         16   Mr. Jirik is not going to be presenting any 
 
          17   testimony per se, but is available to answer 
 
         18   questions that the Board may have from a facility 
 
         19   perspective. 
 
         20            HEARING OFFICER ANTONIOLLI:  Okay, thank 
 
         21   you. 
 
         22                Now, why don't we start by having the 
 
         23   witnesses who have prefiled testimony and who intend 
 
         24   to testify be sworn in. 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                        7 
 
 
 
          1                    (Witnesses sworn.) 
 
          2            HEARING OFFICER ANTONIOLLI:  And, 
 
          3   Mr. Matoesian, do you want to go ahead and start? 
 
          4            MR. MATOESIAN:  Mr. Sutton will 
 
          5   present his testimony. 
 
          6            HEARING OFFICER ANTONIOLLI:  And go ahead 
 
          7   and introduce yourself and give us a little 
 
          8   background and then you can go ahead and start. 
 
          9            MR. SUTTON:  My name is Don Sutton.  I'm 
 
         10   the manager of the permit section, the Bureau of 
 
         11   Air, Division of Air Pollution Control.  I've had 
 
         12   that job since July of 1991.  I'm basically 
 
         13   responsible for all the permits, construction 
 
         14   operating permits at issue for the Bureau of Air and 
 
         15   the State of Illinois.  And I'm here today to 
 
         16   testify on behalf of this proposal. 
 
         17                Do I need to read this or -- 
 
         18            MR. MATOESIAN:  If you'd like. 
 
         19            MR. SUTTON:  I'd rather not. 
 
         20            HEARING OFFICER ANTONIOLLI:  You can give a 
 
         21   summary of it, and if you so choose, we can have the 
 
         22   prefiled testimony entered into the record as an 
 
         23   exhibit. 
 
         24            MR. MATOESIAN:  Why don't we do that.  If 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                        8 
 
 
 
          1   you don't want to read the whole thing, we'll just 
 
          2   enter it as an exhibit then. 
 
          3            MR. SUTTON:  In short summary, I would like 
 
          4   to have this just entered into the record, we have 
 
          5   four different exemptions. 
 
          6                Historically, we initially had 
 
          7   26 exemptions way back in the '90s of things that 
 
          8   were exempt from permitting.  In Illinois, if you 
 
          9   have a unit that emits a criteria pollutant, you 
 
         10   need to get a construction permit prior to building 
 
         11   that emission unit and an operating permit to allow 
 
         12   you to operate it, unless that particular unit is 
 
         13   specifically exempt from regulation, so we initially 
 
         14   started out with 26 exemptions. 
 
         15                When the 1990 amendments to the Clean 
 
         16   Air Act came about, there was a requirement that 
 
         17   large sources get what is called a Title V Permit. 
 
         18   That's a federal operating permit.  Under that 
 
         19   particular program, the USEPA identified a series of 
 
         20   what they called insignificant activities that did 
 
         21   not need to be addressed as part of that Title V 
 
         22   permit program. 
 
         23                We adopted into State law a list of 
 
         24   those insignificant activities under Section 210. 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                        9 
 
 
 
          1   We then went back to our exemption list and took 
 
          2   some of the lessons learned from the insignificant 
 
          3   activities and brought them back and basically 
 
          4   expanded our 201.146 list at that time.  And this is 
 
          5   now yet another attempt to add to those exemptions 
 
          6   in the hope of reducing the amount of paperwork we 
 
          7   have to process and taking some of the regulatory 
 
          8   burden away from the regulated entities. 
 
          9            HEARING OFFICER ANTONIOLLI:  And 
 
         10   would you like to move to enter his prefiled 
 
         11   testimony into the record? 
 
         12            MR. MATOESIAN:  Yes, I would. 
 
         13            HEARING OFFICER ANTONIOLLI:  Does 
 
         14   anyone object -- and do you have extra copies? 
 
         15            MR. MATOESIAN:  Yes, I do have extra 
 
         16   copies. 
 
         17            HEARING OFFICER ANTONIOLLI:  Does 
 
         18   anyone object to entering Mr. Sutton's prefiled 
 
         19   testimony into the record as Exhibit 1? 
 
         20                And seeing none, I will mark 
 
         21   Mr. Sutton's prefiled testimony as Exhibit 1, and we 
 
         22   can proceed with Ms. Hodge's testimony. 
 
         23            MS. HODGE:  Thank you. 
 
         24            MS. DRIVER:  I just want to note one 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       10 
 
 
 
          1   thing for the record before Ms. Hodge begins. 
 
          2                She is going to read her prefiled 
 
          3   testimony into the record but wanted to note one 
 
          4   typographical error, which is on Page 3 of her 
 
          5   prefiled testimony, Section IV(b), the third line, 
 
          6   modification of an existing unit is less than 0.1 
 
          7   pounds per hour. 
 
          8            HEARING OFFICER ANTONIOLLI:  Okay, we'll 
 
          9   note that. 
 
         10            MS. DRIVER:  Thank you. 
 
         11            MS. HODGE:  Thank you for the opportunity 
 
         12   to offer testimony in this proceeding today.  My 
 
         13   name is Katherine Hodge, and I'm the Executive 
 
         14   Director of the Illinois Environmental Regulatory 
 
         15   Group, which I will refer to as ERG today. 
 
         16                I have served in that position since 
 
         17   early 2002, and prior to that, since early 1986, I 
 
         18   have been affiliated with ERG first as in-house 
 
         19   counsel and then an outside counsel for a number of 
 
         20   years. 
 
         21                ERG is an affiliate of the State 
 
         22   Chamber of Commerce, and over the last several 
 
         23   years, ERG has worked with the Illinois EPA to 
 
         24   identify potential areas where innovation and 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       11 
 
 
 
          1   improvements to environmental permitting would 
 
          2   assist both the State and the regulated community. 
 
          3                While ERG and the Illinois EPA continue 
 
          4   to work towards additional changes in the permitting 
 
          5   system, our talks to date have led to the proposed 
 
          6   rulemaking before the Board today. 
 
          7                I'd like to next provide just a little 
 
          8   bit of the historical overview of, you know, how we 
 
          9   got to this point. 
 
         10                This proposed rulemaking focuses on air 
 
         11   permitting, and it contains language agreed to by 
 
         12   both parties.  I would like to describe for you the 
 
          13   background and research which led to the submittal 
 
         14   of today's proposal. 
 
         15                Data from Illinois EPA, originally 
 
         16   collected in calendar years 2002 and 2001, showed 
 
         17   that a large number of air permits were issued for 
 
         18   projects with low levels of emissions. 
 
         19                ERG also collected data from 
 
         20   surrounding Region V states regarding the numbers 
 
         21   and types of air permits processed in each state. 
 
         22   ERG has recently reviewed and updated this data and 
 
         23   has conducted an in-depth analysis of current laws 
 
         24   and regulations on air permitting in other Region V 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       12 
 
 
 
          1   states. 
 
          2                Our discussions with Illinois EPA and 
 
          3   our analysis of the data collected have led ERG to 
 
          4   conclude that the proposed changes in the Illinois 
 
          5   air permitting scheme are overdue, as I'll discuss 
 
          6   now. 
 
          7                Our initial investigation into the 
 
          8   nature of air construction permits issued in 
 
          9   Illinois uncovered a rather startling fact, 
 
         10   approximately 70 percent of all air construction 
 
         11   permits issued in calendar years 2000 and 2001 were 
 
         12   for projects with no emission increases or for 
 
         13   emission increases of less than one ton per year. 
 
         14   This finding indicated the potential for elimination 
 
         15   of a large percentage of such construction permits. 
 
         16   And the attached Exhibit 1 to my testimony shows a 
 
         17   summary of the permitting activities for these 
 
         18   two calendar years. 
 
         19                The major revelation from ERG's 
 
         20   research into the permitting schemes in other 
 
         21   Region V states is that these states have taken a 
 
         22   broad approach to streamlining.  And the attached 
 
         23   Exhibit 2 provides a summary of air permit 
 
         24   streamline efforts in other Region v states. 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       13 
 
 
 
          1                For example, Indiana has de minimis 
 
          2   emission permit exemptions, categorical permit 
 
          3   exemptions, notice-only requirements for certain 
 
          4   types of changes, permits by rule, and so forth. 
 
          5   Note that the emission thresholds associated with 
 
          6   these various streamlining components are far higher 
 
          7   than those in today's proposed rulemaking. 
 
          8                Currently, Illinois is the only state 
 
          9   in Region V that does not have at least some form of 
 
         10   de minimis permit exemption.  The proposal before 
 
         11   the Board today is a very moderate approach to 
 
         12   permit streamlining.  While we cannot provide a 
 
         13   precise figure to the number of permits that will be 
 
         14   eliminated by this proposal, our prior research, 
 
         15   summarized in Exhibit 1, indicated that many permits 
 
         16   have the potential to fall within the proposed 
 
         17   exemptions. 
 
         18                It is clear from the data and from the 
 
         19   progress being made in surrounding Region V states 
 
         20   that Illinois must proceed with air permit 
 
         21   streamlining.  As a first step, ERG and the Illinois 
 
         22   EPA have identified a number of minor source permits 
 
         23   whose elimination would have little or no 
 
         24   environmental impact.  This proposal is directed to 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       14 
 
 
 
          1   those sources. 
 
          2                Today's proposal begins the process of 
 
          3   improving the Illinois air permitting system.  The 
 
          4   proposal adds to the already-established list of 
 
          5   construction and operating permit exemptions by 
 
          6   establishing new permitting exemptions for: 
 
          7                A, new or replacement air pollution 
 
          8   control equipment in specified situations; 
 
          9                B, emission units which are replaced, 
 
         10   added or modified at FESOP facilities where the 
 
         11   potential to emit of the new unit or the increase in 
 
         12   potential to emit from the modification of an 
 
         13   existing unit is less than .1 pound per hour or .44 
 
         14   tons per year in specific circumstances; 
 
         15                C, emission units which are replaced, 
 
         16   added or modified at non-major and non-FESOP sources 
 
         17   where the potential to emit of the new unit or the 
 
         18   increase in potential to emit from the modification 
 
         19   of an existing unit is less than .1 pound per hour 
 
         20   or .44 tons per year, or less than .5 pounds per 
 
         21   hour with prior notice to Illinois EPA, again, with 
 
         22   specific circumstances; 
 
         23                And finally, D, CAAPP source 
 
         24   insignificant activities as already defined by 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       15 
 
 
 
          1   current CAAPP permitting rules. 
 
          2                The benefits from adoption of this 
 
          3   rulemaking for Illinois citizens, government and the 
 
          4   business community are many and varied.  The first 
 
          5   benefit is that the rulemaking could actually lead 
 
          6   to improvements in the State's air quality by 
 
          7   freeing up the regulators to concentrate on permit 
 
          8   actions involving something more than minimal 
 
          9   emissions. 
 
         10                During our early discussions with 
 
         11   Illinois EPA, Illinois EPA noted that of the nearly 
 
         12   7,000 sources permitted by the Division of Air 
 
         13   Pollution Control, less than five percent of those 
 
         14   sources are responsible for a great majority of 
 
         15   Illinois' total air emissions.  These figures make 
 
         16   it obvious that the regulators should focus on these 
 
         17   facilities to achieve the greatest environmental 
 
         18   benefits. 
 
         19                Adopting the proposed air permitting 
 
         20   exemptions will allow better allocation of Illinois 
 
         21   EPA resources, which are currently permitting many 
 
         22   minor emission projects.  At the least, reducing the 
 
         23   number of permit applications required to be 
 
         24   reviewed by the Illinois EPA should help the 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       16 
 
 
 
          1   Illinois EPA more efficiently and more quickly 
 
          2   handle the remaining permit applications.  This 
 
          3   reallocation of Illinois EPA resources is especially 
 
          4   crucial during the current period of State budget 
 
          5   constraints. 
 
           6                Because the emissions targeted by this 
 
          7   rulemaking for exemption are minor, there will be 
 
          8   little or no environmental impact from the change. 
 
          9   Projects that involve more than approximately .5 ton 
 
         10   of emissions, or 2 tons where prior notification is 
 
         11   given will not be impacted by this rulemaking. 
 
         12                Also, the proposal contains constraints 
 
         13   on utilizing the exemptions where such requirements 
 
         14   as New Source Performance Standards, New Source 
 
         15   Review and National Emissions Standards for 
 
         16   Hazardous Air Pollutants would be triggered. 
 
         17                The business community in Illinois will 
 
         18   also benefit from adoption of this proposal. 
 
         19   Improvements to the permitting process in Illinois 
 
         20   will allow businesses to start operation or change 
 
         21   production methods more efficiently, allowing them 
 
         22   to stay more competitive in today's global market. 
 
         23   Delays in permitting issuance frequently results in 
 
         24   financial losses.  The streamlining of today's 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                        17 
 
 
 
          1   proposal will allow businesses to make more timely 
 
          2   improvements, eliminating idle time and waste 
 
          3   involved in waiting on permit issuance, without 
 
          4   reducing environmental protection. 
 
          5                For the reasons discussed above, we 
 
          6   urge the Board to move forward expeditiously with 
 
          7   the proposed rulemaking.  Although ERG hopes to 
 
          8   return with additional air permit streamlining 
 
          9   proposals in the near future, today's proposed rule 
 
         10   is a good first step in bringing Illinois in line 
 
         11   with neighboring Region V states and with the times. 
 
         12                Thank you very much.  I'd be happy to 
 
         13   answer any questions. 
 
         14            HEARING OFFICER ANTONIOLLI:  Thank you both 
 
         15   for the testimony you've provided. 
 
         16                Let's begin with questions for these 
 
         17   two witnesses. 
 
         18            BOARD MEMBER THOMAS:  I had one for Kathy, 
 
         19   and I guess it falls into the category of there's 
 
         20   lies, damn lies and statistics. 
 
          21   BY BOARD MEMBER THOMAS: 
 
         22          Q.     Your testimony was that the time 
 
         23   period of 2000 and 2001 that 70 percent of the 
 
         24   construction permits that were issued were issued 
 
 
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                                                                       18 
 
 
 
          1   either for de minimis emissions or no emissions, my 
 
          2   question is, do you consider that, and based upon 
 
          3   your wealth of experience, to be an average -- is 
 
          4   that reflective of any average two-year time period? 
 
          5   I mean, you didn't go out and just pick 2000 and 
 
          6   2001 because you knew that those were when these 
 
          7   de minimis permits were issued? 
 
          8   BY MS. HODGE: 
 
          9          A.     That's correct.  And we started this 
 
         10   project probably about three years ago, and that was 
 
         11   the most current data available to us at the time, 
 
         12   and that's really what started our efforts here. 
 
         13                We did look at the information done, 
 
         14   and his staff were kind enough to send us an 
 
         15   electric version of their permit tracking, you know, 
 
         16   that had the different kinds of sources, you know, 
 
         17   we've separated them by CAAPP source, FESOP and 
 
         18   State operating permit sources.  And then as to the 
 
         19   emission increases, the data also had, you know, 
 
         20   bi-pollutant information, too, so we just chose to 
 
         21   do a summary.  That really led us to sit down with 
 
         22   our initial discussions with them and say, you know, 
 
         23   let's look at this and think about maybe a 
 
         24   reallocation of some resources. 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       19 
 
 
 
          1                Now, is that consistent, you know, 
 
          2   forward?  We think so.  Don might be more -- better 
 
          3   able to answer that question, but we believe that it 
 
          4   probably is. 
 
          5            MR. SUTTON:  And again, if you would 
 
          6   allow me, I can throw more statistics onto your 
 
          7   statistics. 
 
          8            MR. THOMPSON:  Certainly. 
 
          9            MR. SUTTON:  Currently, we have -- 
 
         10   and this was as of January -- I had to pull the 
 
         11   numbers together for a speech, we have 6,860 sources 
 
         12   in the state that have operating permits, okay, so 
 
         13   these are existing operating sources. 
 
         14                At that point in time, 790 of those 
 
         15   were classified as needing a Title V permit or what 
 
         16   we call Clean Air Act Program Permit or CAAPP.  At 
 
         17   that time, there were 450 sources who had taken 
 
         18   federally enforceable limits, become a peace office, 
 
         19   Kathy mentioned in her testimony, to avoid Title V, 
 
         20   and we had 5,620 smaller source permits, or what we 
 
         21   call lifetime permits.  So these are the people who 
 
         22   have emissions whose potential to emit don't make 
 
         23   them need a larger permit.  So the vast majority of 
 
         24   the permits we have are at small sources, and that's 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       20 
 
 
 
          1   to be expected. 
 
          2                We have done some research on our own 
 
          3   as to see how this might impact our workload, and 
 
          4   currently -- those particular two years actually 
 
          5   were fairly good years for our economy and good 
 
          6   years for permitting.  Permitting has dropped off a 
 
          7   little bit.  We are probably now down into the range 
 
          8   of 1,800 to 1,900 permits a year that we issue, and 
 
          9   roughly of those, about 900 to 1,000 would be 
 
         10   construction permits, and the rest of them would be 
 
         11   operating permits.  This does not include our 
 
         12   open burning permits.  We issue about a thousand of 
 
         13   those a year, and that hasn't changed over time. 
 
         14                But out of that 900 to 1,000 
 
         15   construction permits, just looking back to our -- as 
 
         16   of July of '03, we have a fee structure for 
 
         17   construction permitting, so we went back and picked 
 
         18   up the people who would pay us the minimum amount of 
 
         19   fee as kind of a gauge as to who would fall in these 
 
         20   categories.  And we had roughly, in Bob's group, 
 
         21   somewhere in the range between 120 to 150 permits a 
 
         22   year would probably fall out under this exemption, 
 
         23   and then add our Title V sources, we figured 
 
         24   somewhere between another 60 to 80 would fall out, 
 
 
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                                                                       21 
 
 
 
          1   so we would guess somewhere in the neighborhood of 
 
          2   200 to 230 permits a year would no longer be needed 
 
          3   to issue because of this program.  And that's our 
 
          4   best guess at this time. 
 
          5   BY BOARD MEMBER THOMAS: 
 
          6          Q.     Nor would the fees be paid for those 
 
          7   permits? 
 
          8          A.     Exactly.  If I can continue on that 
 
          9   line, we kind of see those two efforts as a wash. 
 
         10   These are minimum fee payers.  The minimum fee for 
 
         11   construction permits is $500.  And though these 
 
         12   particular permits do not take a great deal of time 
 
         13   to process as far as the permitting end goes, they 
 
         14   take the same amount of time for clerical work, same 
 
         15   amount of time to open up the envelopes, process the 
 
         16   checks, move the paper from point A to point B, 
 
         17   actually type up the permits and send them out.  So 
 
         18   the clerical end doesn't vary much, it's the 
 
         19   engineering end that obviously differs on the amount 
 
         20   of time it takes to review these applications. 
 
         21            BOARD MEMBER THOMAS:  Thanks. 
 
         22            HEARING OFFICER ANTONIOLLI:  Yes?  You want 
 
         23   to introduce yourself? 
 
         24            MR. NILLES:  Sure.  My name is Bruce 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       22 
 
 
 
          1   Nilles, and I represent the Sierra Club.  I had a 
 
          2   couple questions for -- a series of questions for 
 
          3   Don Sutton. 
 
          4   BY THE NILLES: 
 
          5          Q.     You testified that you started working 
 
          6   on this proposal about two years ago; is that 
 
          7   correct? 
 
          8   BY MR. SUTTON: 
 
          9          A.     Well, Kathy and our director have 
 
         10   been after efforts to streamline permitting in all 
 
         11   sorts of fashions for an extended period of time.  I 
 
         12   would say this one is probably at least three years 
 
         13   ago. 
 
         14          Q.     And are you familiar with IERG? 
 
         15          A.     Yeah, IERG and others. 
 
         16          Q.     Who at the Agency has been involved in 
 
         17   this rulemaking? 
 
         18          A.     Predominantly me and Bob Bernoteit. 
 
         19          Q.     And who at the Illinois Environmental 
 
         20   Regulatory Group? 
 
         21          A.     Kathy. 
 
         22          Q.     Are you familiar with the Sierra Club 
 
         23   and other environmental groups in this state? 
 
         24          A.     Yes, I am. 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       23 
 
 
 
          1          Q.     Do you recall discussions last year 
 
          2   regarding the proposed rulemaking cleaning 
 
          3   up (inaudible), otherwise known as the 9-10 
 
          4   rulemaking process? 
 
          5          A.     Yes, I do. 
 
          6          Q.     And there was multiple meetings 
 
          7   between the Agency and the Environmental Public 
 
          8   Health Organizations before the Agency voted for 
 
          9   the proposal? 
 
         10          A.     Yes. 
 
         11          Q.     Did you have any meetings with any 
 
         12   environmental group before the proposals in the last 
 
         13   three years to discuss these issues? 
 
         14          A.     I personally did not.  This particular 
 
         15   spinoff of exemptions, actually, was introduced as 
 
         16   legislation last year, and at that point in time, 
 
         17   had exposure and written print.  We did not make an 
 
         18   effort at that time, as I recall, to outreach to 
 
         19   environmental groups, nor did we at this point. 
 
         20          Q.     Did you ever talk to any public health 
 
         21   organizations? 
 
         22          A.     No. 
 
         23          Q.     Have you ever proposed rulemakings 
 
         24   before without discussing it with other interested 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       24 
 
 
 
          1   parties from the industry? 
 
          2          A.     I personally -- and this is probably 
 
          3   only the third rulemaking I have been involved with, 
 
          4   and I presume one of those were the air rulemaking, 
 
          5   which had extensive outreach, and the other one was 
 
           6   a trade secret rulemaking that I was involved in, 
 
          7   and we did an outreach for that to environmental 
 
          8   groups. 
 
          9          Q.     Do you have any other ongoing 
 
         10   negotiations within the industry regarding other 
 
         11   potential loopholes with the air program? 
 
         12          A.     I think I would take exemption as to 
 
         13   the word loopholes. 
 
         14          Q.     Exemptions, other exemptions to that 
 
         15   program? 
 
         16          A.     Yes, we have explored possibly taking 
 
         17   this farther, but those particular discussions 
 
         18   haven't evolved to the point where we'd like to take 
 
         19   them forward. 
 
         20          Q.     How many staff do you have in the 
 
         21   permitting program? 
 
         22          A.     Engineering, clerical, how would you 
 
         23   like it broken down? 
 
         24          Q.     Total staff in the air program? 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       25 
 
 
 
          1          A.     Well, on a good day, 54 people. 
 
          2          Q.     And resources have been a serious 
 
          3   concern, particularly, since the Title V program 
 
          4   began back in 1990; is that correct? 
 
          5          A.     Yes. 
 
          6          Q.     Do you recall the Agency in 1991 doing 
 
          7   a workload analysis estimating how much resources 
 
          8   you need to run a permitting program between 1992 
 
          9   and 1997? 
 
         10          A.     Yes, I do. 
 
         11          Q.     And do you recall that that indicated 
 
         12   the Agency needed about 330 employees and about a 
 
         13   budget of $25 million to run the program? 
 
         14          A.     I don't recall the total Agency 
 
         15   numbers.  I know the permit numbers at one time were 
 
         16   somewhere estimated between 70 and 80 to run the 
 
         17   total program for permit signing. 
 
         18          Q.     Well, I can perhaps refresh your 
 
         19   memory.  It's -- 
 
         20          A.     I'm not disagreeing with you, but I'm 
 
         21   just saying I'm more familiar with the permits 
 
         22   amount. 
 
         23            HEARING OFFICER ANTONIOLLI:  Are you moving 
 
         24   to introduce this into the record? 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       26 
 
 
 
          1            MR. NILLES:  Just to refresh his memory 
 
          2   first. 
 
          3            MR. SUTTON:  I'm not disagreeing with 
 
          4   the numbers. 
 
          5   BY MR. NILLES: 
 
          6          Q.     So the Agency estimated in 1991 that 
 
          7   it needed 330 employees and budget of about 
 
          8   $25 million, as on Page 2 of the executive summary? 
 
          9          A.     Yes. 
 
         10            HEARING OFFICER ANTONIOLLI:  Can you 
 
         11   explain to us what -- even if you're not introducing 
 
         12   it into the record where you're looking? 
 
         13            MR. NILLES:  I'm sorry.  On Page 2. 
 
         14            HEARING OFFICER ANTONIOLLI:  And what's the 
 
         15   title of the document that you're -- 
 
         16            MR. NILLES:  The document is a report 
 
         17   prepared by the Illinois Environmental Protection 
 
         18   Agency, Air Pollution Control Division, it's called 
 
         19   Workload Projection and Resource Estimates for FY-92 
 
          20   through FY-97. 
 
         21            HEARING OFFICER ANTONIOLLI:  Okay, thank 
 
         22   you. 
 
         23   BY MR. NILLES: 
 
         24          Q.     In executive summary, Page 1, it 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       27 
 
 
 
          1   describes a breakdown of fiscal year total staff 
 
          2   employment estimate in order to run the clean air 
 
          3   program. 
 
          4                Has IEPA ever received close to the 
 
          5   number of staff and resources? 
 
          6          A.     Again, I'm not an expert on Agency 
 
          7   staffing and bureau staff, for that matter, but we 
 
          8   obviously didn't -- staff never approached those 
 
          9   types of numbers.  Personally, I can think -- well, 
 
         10   my best guess is the highest number we had on the 
 
         11   Division of Air Pollution side, this doesn't count 
 
         12   the vehicle emissions side, it probably was in the 
 
         13   neighborhood of 170 people. 
 
         14          Q.     Do you recall in 1996 the legislature 
 
         15   further reduced your fee-generating authority by 
 
         16   reducing the minimum fee for a FESOP from a thousand 
 
         17   bucks to a hundred bucks? 
 
         18          A.     Yes. 
 
         19          Q.     And it resulted in a loss of about 
 
         20   $900,000 from the Agency's permitting budget? 
 
         21          A.     Yes. 
 
         22          Q.     Compared to what the Agency estimated 
 
         23   in 1991, before 2003, the Agency had about 
 
         24   10 million annually generated from Title V and other 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       28 
 
 
 
          1   operating permits; is that correct? 
 
          2          A.     Had I known you were going this 
 
          3   particular direction, I would have brought somebody 
 
          4   more versed in our financial situation.  I can only 
 
          5   assume you've got some source of the numbers. 
 
          6          Q.     In 2003, the legislature raised fees 
 
          7   for various sources of air pollution; is that 
 
          8   correct? 
 
          9          A.     That's correct. 
 
         10          Q.     Various construction and operating 
 
          11   permits? 
 
         12          A.     That's correct. 
 
         13          Q.     But some of that increase was offset 
 
         14   by additional burdens that the Agency -- or 
 
         15   additional outlays the Agency incurred that had 
 
         16   previously been funded by general revenue; is that 
 
         17   correct? 
 
         18          A.     Well, in regards to Title V fees, the 
 
         19   Title V fees by their very nature, had to be spent 
 
         20   to fund the Title V sources, so there were no 
 
         21   general refunds there.  We had fees -- in the permit 
 
         22   section, we have a permit inspection fund that also 
 
         23   is for those sources not covered by Title V fees. 
 
         24   We have state operating fees.  So the permit section 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       29 
 
 
 
          1   itself was pretty well funded from either the 
 
          2   Title V program for those people working on Title V 
 
          3   sources and the permit inspection fund for those 
 
          4   that weren't. 
 
          5                     There are other portions of the 
 
          6   Division of Air Pollution Control that were funded 
 
          7   from general revenue.  The permit section itself was 
 
          8   pretty well funded by the permit inspection fees. 
 
          9          Q.     Your testimony is the Title V fees 
 
         10   were adequate to cover the needs for the Title V 
 
         11   operating permits? 
 
         12          A.     No.  My testimony is, the source of 
 
         13   revenue for my people working for me was from the 
 
         14   Title V program, that's my testimony. 
 
         15          Q.     And that has never been adequate; is 
 
         16   that correct? 
 
         17          A.     Well, I guess you'd have to define 
 
         18   adequate.  But we have not ever exceeded -- 
 
         19   approached the numbers that we had originally 
 
         20   projected, no. 
 
         21          Q.     What was the deadline of the Agency to 
 
         22   issue all of the Title V permits? 
 
         23          A.     Well, the legal deadline was 
 
         24   three years after the installation of the program, 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       30 
 
 
 
          1   so we were supposed to get the applications in '95, 
 
          2   the same year issue a third of those than we should 
 
          3   in '96 and '97.  So the end of 1997, we should have 
 
          4   issued, in theory, by federal mandate, all the 
 
          5   permits. 
 
          6          Q.     By 1998? 
 
          7          A.     Yes.  Well, January of 1999. 
 
          8          Q.     Has the Agency issued all of its 
 
          9   Title V permits yet? 
 
         10          A.     No, we still have roughly 30-some 
 
         11   outstanding. 
 
         12          Q.     With the passage of, in 2003, 
 
         13   additional funding, was the Agency able to hire 
 
         14   additional staff? 
 
         15          A.     No. 
 
         16          Q.     So despite an increase in fees, the 
 
         17   Agency hasn't been able to move forward and hire 
 
         18   additional engineers and other people to administer 
 
         19   the program? 
 
         20          A.     Right.  And I think that was just 
 
         21   basically overall hiring fees within the State of 
 
         22   Illinois. 
 
         23          Q.     You testified that the loss of revenue 
 
          24   associated with these exemptions was a wash? 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       31 
 
 
 
          1          A.     Yes. 
 
          2          Q.     Have you done that analysis in terms 
 
          3   of resources?  Is there anything in writing that 
 
          4   says, here's how much we spend on permitting, these 
 
          5   are the results versus how much money we take in? 
 
          6          A.     We have not got an equation that you 
 
          7   could plug in to calculate that out.  When we 
 
          8   actually went in for a fee structure in July of '03, 
 
          9   we did some preliminary investigations and basically 
 
         10   concluded those particular construction fee levels 
 
         11   were appropriate to cover the cost of administrating 
 
         12   those types of actions.  So, in theory, $500 would 
 
         13   cover the cost of paper processing of that type of 
 
         14   permit. 
 
         15          Q.     Can you explain how the Agency would 
 
         16   consult in a more efficient use of Agency resources? 
 
         17          A.     Yes, because now I have -- while I 
 
          18   issue roughly 1,900 permits a year, I have, at any 
 
         19   one time, a 900 to a 1,000 permit backlog, and so 
 
         20   the hope is that I can then reduce the processing 
 
         21   time for the existing permits I have as a backlog by 
 
         22   diverting staff from these permits to those permits. 
 
         23          Q.     You testified you thought about 100 to 
 
         24   230 permits would be exempt under this proposal, do 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       32 
 
 
 
          1   you know what kind of sources those are? 
 
          2          A.     Well, yeah, a rough breakdown is the 
 
          3   150 are the ones that Bob processes, and he issues a 
 
          4   construction -- his unit issues construction permits 
 
          5   for the smaller sources and the FESOP sources, and 
 
          6   his review of that basically concluded to be about 
 
          7   150 a year roughly, in that neighborhood. 
 
          8                Chris Romaine, his staff, at least a 
 
          9   portion of his staff, issues construction permits 
 
         10   for Title V sources, and he's the one who came up 
 
         11   with the 80 figure for Title V sources. 
 
         12          Q.     Do you know what type of industrial 
 
         13   category we're talking about that would be exempt? 
 
         14          A.     All of them. 
 
         15          Q.     This would include medical waste 
 
         16   incinerators? 
 
         17          A.     Well, when you say, include medical 
 
         18   waste incinerator, a source that has a medical waste 
 
         19   incinerator can have a Title V permit and could add 
 
         20   additional units at that source not related to the 
 
         21   incinerator that may be impacted by it, so again, 
 
         22   how you frame your question, you will not be able to 
 
         23   modify medical waste incinerator on the rule, but 
 
         24   you could add another unit at a hospital that may 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       33 
 
 
 
          1   not have anything to do with the incinerator that 
 
          2   would be allowed, and the only reason that 
 
          3   particular hospital has the Title V permit is 
 
          4   because of the medical waste incinerator, so again, 
 
          5   I have to understand your question. 
 
          6          Q.     Could you make any changes to an 
 
          7   incinerator on any of these exemptions, 
 
          8   particularly, a replacement of the air pollution 
 
          9   controls? 
 
         10          A.     Well, to that end, yes, you could. 
 
         11          Q.     Thank you. 
 
         12                     Do you know if any of these 
 
         13   sources are not intended areas? 
 
         14          A.     Yes, I assume several of them are. 
 
         15          Q.     Are you aware that the Agency is 
 
         16   under a federal obligation to come up with a plan 
 
         17   for the State to meet the new eight-hour ozone and 
 
         18   fine particulate standard; is that correct? 
 
         19          A.     Yes. 
 
         20          Q.     And right now, we violate both the 
 
         21   eight-hour ozone standard and the fine particulate 
 
         22   standard in the Greater Chicago area and the metro 
 
         23   east; is that correct? 
 
         24          A.     That's correct. 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       34 
 
 
 
          1          Q.     At this point, the Agency hasn't 
 
          2   determined how it's going to meet those standards; 
 
          3   is that correct? 
 
          4          A.     Right, that's correct.  Predominantly 
 
          5   because the USEPA hasn't come out with guidance to 
 
          6   tell you how to put together your plan yet, but 
 
          7   that's slowed us down a little bit. 
 
          8          Q.     Do any of these sources contribute 
 
          9   either the precursors or the pollution that causes 
 
         10   nonattainment with either ozone or fine particulate 
 
         11   standards? 
 
         12          A.     I would say to a very minimal degree, 
 
         13   yes, they would have to. 
 
         14          Q.     Has the Agency done any analysis as to 
 
         15   whether these sources that they're proposing to 
 
         16   exempt are controversial sources, that is, where 
 
         17   there has been a controversy in the past either from 
 
         18   the neighbors or elected officials? 
 
         19          A.     Again, because this covers a whole 
 
         20   range of permitting sources, I mean, in theory, you 
 
         21   could say this affects, to a certain degree, 6,000 
 
         22   sources, all having -- to decide which ones may or 
 
         23   may not be controversial. 
 
         24          Q.     These exemptions will eliminate the 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       35 
 
 
 
          1   opportunity for the public to receive notice and 
 
          2   comment on these proposed permits; is that correct? 
 
          3          A.     These will -- well, for our smaller 
 
          4   source permits, which are the predominant number of 
 
          5   these permits that we issue, there is not a 
 
          6   requirement for public notice for those particular 
 
          7   permits that we issue currently. 
 
          8          Q.     Are any of these proposed exemption 
 
          9   sources that are currently subject to -- do any of 
 
         10   these construction and operating permit exemptions 
 
         11   currently require public notice or any public 
 
         12   participation?  Let me rephrase it. 
 
         13                     Do these exemptions eliminate 
 
         14   situations right now where the public has an 
 
         15   opportunity to participate in the issuance of either 
 
         16   the construction or operating permits? 
 
         17          A.     Well, the way we have structured it, I 
 
         18   would think not, because you cannot trigger a PSD 
 
         19   permit, a new source review permit, a new source 
 
         20   performance standard permit or a NESHAP permit, so 
 
         21   no federal permit by the way that we have structured 
 
         22   this is that these are all below all federal 
 
         23   requirements, so I would not see a need for having a 
 
         24   public notice for any of these types of permits, 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       36 
 
 
 
          1   historically. 
 
          2                     As Bob has just pointed out to me 
 
          3   also, we deliberately put in here that these current 
 
          4   sources have to be in compliance.  Again, that was 
 
          5   an attempt to try to address the controversial 
 
          6   nature of those particular permits.  People who are 
 
          7   in compliance can still be controversial, obviously, 
 
          8   but to a less degree than the people -- what we are 
 
          9   trying to get here are small sources who had maybe 
 
         10   create-nuisance conditions in the recent past would 
 
         11   not be able to benefit from these types of 
 
         12   exemptions. 
 
         13          Q.     Are you familiar with the Evanston 
 
         14   medical waste incinerator? 
 
         15          A.     No. 
 
         16          Q.     Are you familiar with the controversy 
 
         17   last year about the Evanston medical waste 
 
         18   incinerator? 
 
         19          A.     Well, I don't know if I am familiar 
 
         20   with Evanston in itself, but medical waste 
 
         21   incinerators are generally not viewed as polite 
 
         22   neighbors, so I would assume it would have people 
 
         23   who are not in favor of them.  So I'm not disputing 
 
         24   that Evanston may have had people who weren't happy 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       37 
 
 
 
          1   with it. 
 
          2          Q.     Do you recall whether that facility 
 
          3   was technically in compliance or not? 
 
          4          A.     As far as I know, we had no 
 
          5   outstanding enforcement actions against them. 
 
          6   Again, I'm the permit section, but I don't recall 
 
          7   any enforcement action against them. 
 
          8          Q.     Turning to the requirements that the 
 
          9   exemption is only available if its source is in 
 
         10   compliance, why is it important that the sources 
 
         11   operate in compliance before you grant them an 
 
         12   exemption? 
 
         13          A.     I think all sources ought to operate 
 
         14   in compliance. 
 
         15          Q.     Let me try the question again. 
 
         16                     Why is it relevant in establishing 
 
         17   an exemption for a particular facility whether or 
 
         18   not there's been any compliance for the previous 
 
         19   year? 
 
         20          A.     Well, again, I think these things are 
 
         21   aimed at two sources, one, you have the permitted 
 
         22   source, so you have to have some history with us, 
 
         23   which I think is important because we have, 
 
         24   obviously, a lot easier time dealing with people who 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       38 
 
 
 
          1   are used to working with the system; and two, to a 
 
          2   level that they are in compliance shows a light bit 
 
          3   of faith on their part to make sure they're adequate 
 
          4   in determining and evaluating each particular 
 
          5   exemption.  I would think it's just a good idea. 
 
          6          Q.     So it's important that they're in 
 
          7   compliance? 
 
          8          A.     Again, I think it's important that all 
 
          9   sources be in compliance. 
 
         10          Q.     Including the sources proposed here 
 
         11   today? 
 
         12          A.     Yes. 
 
         13          Q.     How will I get EPA compliance? 
 
         14          A.     We have our own enforcement section 
 
         15   who keeps records of the compliance status, all of 
 
         16   these things, so we track people. 
 
         17          Q.     And their compliance status? 
 
         18          A.     Now, are you saying if somebody 
 
         19   doesn't come to me how am I aware of that?  That we 
 
         20   would have to find out through a field inspection. 
 
         21          Q.     Are you proposing to conduct a field 
 
         22   inspection prior to granting any of these 
 
         23   exemptions? 
 
         24          A.     Well, first you got to understand how 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       39 
 
 
 
          1   the exemptions work.  People do not write to me and 
 
          2   ask for an exemption.  Once the exemption is on the 
 
          3   books, people then read the exemption and follow 
 
          4   that exemption and record in their own records where 
 
          5   they're at within that exemption.  You do not write 
 
          6   to me and say, Don, I want to take advantage of this 
 
          7   ticket exemption. 
 
          8                     Some cases people say, we're 
 
          9   anticipating a project, would it fall under this 
 
         10   exemption, and we would then respond in writing if 
 
         11   asked.  But the whole point here is to avoid the 
 
         12   processing of permits. 
 
         13          Q.     So how will you determine compliance? 
 
         14          A.     Again, how we would determine 
 
         15   compliance is if at such time the field inspection 
 
         16   occurs, and we're not suggesting we're going to 
 
         17   inspect these people, but I guess the most likely 
 
         18   scenario, if you want to use that term, Bruce, would 
 
         19   be, should we have a complaint at a source, we would 
 
         20   follow up on complaints.  Should the field person 
 
         21   show up, he then analyzes not just the source of the 
 
         22   complaint, but takes an inventory of what's there. 
 
         23                Obviously, if that inventory is 
 
         24   different than what we have on record, then he would 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       40 
 
 
 
          1   then determine whether that particular piece of 
 
          2   equipment, by asking the source or his own knowledge 
 
          3   is would it be exempt.  If it's not exempt, then he 
 
          4   would find him in violation.  If it is exempt, he 
 
          5   may or may not add it to his particular information 
 
          6   database on that source depending on the inspection. 
 
          7   But that is how he would then determine the units 
 
          8   that are at that source are properly being 
 
          9   regulated. 
 
         10                To the extent somebody relies on one of 
 
         11   the exemptions, it says that its emissions are less 
 
         12   than .1 pound per hour or .44 tons per year, they 
 
         13   would have to have records to confirm that, be it 
 
         14   manufacturer's guarantee, whatever, some method of 
 
         15   determining that they have -- they are inputting 
 
         16   compliance with that particular exemption, if that's 
 
         17   what they're relying on to avoid permitting, so it 
 
         18   brings that obligation to the source. 
 
         19          Q.     So the obligation is on the source to 
 
         20   determine whether or not it's in compliance, and 
 
         21   therefore, it's eligible for this exemption? 
 
         22          A.     Exactly. 
 
         23          Q.     How often do you inspect minor 
 
         24   sources? 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       41 
 
 
 
          1          A.     We do not routinely inspect any minor 
 
          2   sources.  Both of our staff is devoted to inspecting 
 
          3   Title V sources, and, to a certain extent, FESOP 
 
          4   sources.  We probably visit, I would guess -- and 
 
          5   again, permits, not FOS, we probably inspect 
 
          6   somewhere in the neighborhood of 8 to 900 small 
 
          7   sources a year just based on complaint follow-up. 
 
           8          Q.     So that's about one every six years? 
 
          9          A.     Well, I could safely say that there 
 
         10   could be sources out there we haven't gone to in ten 
 
         11   years because they have no complaint history. 
 
         12            MR. MATOESIAN:  Well, I don't like 
 
         13   that type of speculation.  Perhaps we could have 
 
         14   better numbers at the second hearing on that -- 
 
         15            HEARING OFFICER ANTONIOLLI:  And if you'd 
 
         16   like to pose your question for the record that the 
 
         17   Agency may be able to better answer that at the next 
 
         18   hearing? 
 
         19            MR. NILLES:  The frequency in which 
 
         20   minor sources are expected and then a follow-up on 
 
         21   Don's question, which is, are there some minor 
 
         22   sources that have never been inspected or what's the 
 
         23   greatest length of inspection time frame we've seen 
 
         24   for minor sources in Illinois. 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       42 
 
 
 
          1            MR. MATOESIAN:  Okay. 
 
          2   BY MR. NILLES: 
 
          3          Q.     When the rule says, in short 
 
          4   compliance, does that mean compliance with air 
 
          5   requirements, water requirements, any environmental 
 
          6   requirements, any local zoning requirements, what 
 
          7   does it mean? 
 
          8          A.     These particular rules are specific to 
 
          9   air. 
 
         10          Q.     So if they have a terrible 
 
         11   environmental record for other media, i.e., waste or 
 
         12   water, IEPA would say that that source is eligible 
 
         13   for exemption under the air program? 
 
         14          A.     As this rule is written, yes.  Again, 
 
         15   history would suggest if they have those types of 
 
         16   problems, they don't limit themselves to just one 
 
         17   media, so air, land and water, either they are or 
 
         18   they aren't. 
 
         19          Q.     Does it include intermittent 
 
         20   compliance? 
 
         21          A.     This suggests that they had to be in 
 
         22   compliance in the last year. 
 
         23          Q.     If they have a violation on one day in 
 
         24   the last year, does that mean they are no longer 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       43 
 
 
 
          1   eligible for any of the exemptions? 
 
          2          A.     As written, this says they're not 
 
          3   subject to a noncompliance advisory, 114 request, a 
 
          4   violation notice or compliance equipment agreement, 
 
          5   administrative order, or civil or criminal 
 
          6   enforcement action.  So they had to have had -- the 
 
          7   Agency would have to have taken some level of 
 
          8   enforcement action against them. 
 
          9                     We would not have knowledge to the 
 
         10   length and degree that you're talking on continuous 
 
         11   compliance, nor do we ask that level of commitment 
 
         12   other than for Title V sources. 
 
         13                     The only true test of that would 
 
         14   be for Title V sources who have to provide annual 
 
         15   compliance certifications.  To the extent where 
 
         16   those would certify a noncompliance, it doesn't 
 
         17   happen much, but if they certify a noncompliance, 
 
         18   that would have an impact on these rules. 
 
         19          Q.     The list you just described, did that 
 
         20   include self-disclosure violations? 
 
         21          A.     No, these are all Agency actions. 
 
         22          Q.     So if a source says, I violated my 
 
         23   permit, it's still eligible for permit exemption? 
 
         24          A.     Well, to the extent that happens, 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       44 
 
 
 
          1   which I would say would be extremely rare, we would 
 
          2   then follow up on that to determine if there is a 
 
          3   need to take follow-up action.  If somebody tells us 
 
          4   they're out of compliance, historically, we would 
 
          5   then go back and pursue that, and so that should 
 
          6   lead to one of these. 
 
          7          Q.     Are you familiar with the coal fire 
 
          8   complex (phonetic) owned by Midwest Generation in or 
 
          9   around Chicago? 
 
         10          A.     Yes. 
 
         11          Q.     Are you aware that they regularly 
 
         12   report they violate the hazardous standards? 
 
         13          A.     I know they regularly report they have 
 
         14   exceedences from their CEMs. 
 
         15          Q.     In the five years -- in the history of 
 
         16   the clean air program, has the State ever taken an 
 
         17   active enforcement case against Midwest Generation 
 
         18   for ongoing violations? 
 
         19            MR. MATOESIAN:  I'm not sure this is 
 
         20   relevant. 
 
         21            HEARING OFFICER ANTONIOLLI:  I'll note your 
 
         22   objection for the record. 
 
         23                Mr. Nilles, you can continue, and 
 
         24   Mr. Sutton can answer the best he can. 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       45 
 
 
 
          1   BY MR. NILLES: 
 
          2          Q.     Turning to the issue of hazardous air 
 
          3   pollutants, the proposed rule would exempt sources 
 
          4   based on the percentage of hazardous air pollutants, 
 
          5   raw materials and fuel; is that correct? 
 
          6          A.     Yes, it's correct for the FESOP 
 
          7   sources. 
 
          8          Q.     Is dioxin decay a hazardous air 
 
          9   pollutant? 
 
         10          A.     Yes, it is. 
 
         11          Q.     Is it ever present in the raw 
 
         12   materials of fuel? 
 
         13          A.     Ever?  I would assume to some very, 
 
         14   very small fraction. 
 
         15          Q.     Are you aware of dioxin ever making up 
 
         16   .1 percent of a fuel or raw material? 
 
         17          A.     I don't know if we are or not. 
 
         18          Q.     Dioxin is a known carcinogen, right? 
 
         19          A.     Yes. 
 
         20          Q.     And the governor announced a coalition 
 
         21   to shut down medical waste incinerators because of 
 
         22   the large source of dioxin; is that correct? 
 
         23          A.     Yes. 
 
         24                     I would like to, I guess, expound 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       46 
 
 
 
          1   on the fact that the limits for fighting FESOP 
 
          2   sources are uncontrolled at a rate of less than .1 
 
          3   pound per hour, and that the percentage by weight of 
 
          4   the hazardous pollutant can only be .01 percent of 
 
          5   that .01 pound -- excuse me.  .01 percent, .1 pound, 
 
          6   so again, you're talking a very, very small number. 
 
          7          Q.     Does the Agency measure dioxin in 
 
          8   parts per billion or parts per trillion? 
 
          9          A.     The Agency doesn't measure dioxin. 
 
         10   We have no monitors.  We don't measure.  The 
 
         11   calculations that come from dioxins and pure ions 
 
         12   are based on the non-fuels that burnt, and again, as 
 
         13   you say, through whatever percent, although 
 
         14   fractional, that this might be creating.  Again, 
 
         15   these are very small units that we're talking for 
 
         16   exemption, and I, to my recollection, would not know 
 
         17   how you get dioxin purines out of them, but you can 
 
         18   theorize anything you want. 
 
         19                     And again, you seem to be fixated 
 
         20   on medical waste incinerators, which, by law, have 
 
         21   to be Title V permitted sources, so they're not 
 
         22   covered by these particular set of exemptions.  They 
 
         23   are similar exemptions and under insignificant 
 
         24   activities that already cover those have already 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                        47 
 
 
 
          1   been in place, so this doesn't add anything to those 
 
          2   particular exemptions. 
 
          3          Q.     Are you aware of -- what I'm getting 
 
          4   at is that there are a lot of hazardous air 
 
          5   pollutants that are not in the raw materials, all of 
 
          6   the fuels, but are a byproduct of violent combustion 
 
          7   or the chemical process involved at the source. 
 
          8                     And so an exemption based on what 
 
          9   is in the raw material on fuel fails to recognize, 
 
         10   and dioxin is one of the best examples, that what 
 
         11   comes out of the stacks is not the chemical that was 
 
         12   in the fuel because of the chemical reaction that 
 
         13   occurs during the combustion process? 
 
         14          A.     Yes.  But again, you're talking very 
 
         15   small units, very small exemptions, so your theory 
 
         16   is correct, but in practical use, I don't see that 
 
         17   usually occurring.  You give me an example where you 
 
         18   think somebody would burn a fuel that they're 
 
         19   allowed to burn, because, again, this only would 
 
         20   cover conventional-type fuels.  Obviously, you can't 
 
         21   come up on hazardous waste incinerator and follow it 
 
         22   under these rules because they would be coupled by 
 
         23   other regulations. 
 
         24                     So you're going to take a 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       48 
 
 
 
          1   conventional fuel and burn it in a very small device 
 
          2   and then create a concern that isn't currently being 
 
          3   addressed by either state or federal government, so 
 
          4   I'm not sure where you're heading with your line of 
 
          5   questioning. 
 
          6          Q.     Let me ask the final question on the 
 
          7   issue of -- are you aware of any source in the state 
 
          8   where dioxin makes up, including major sources, more 
 
          9   than 0.01 percent by waste? 
 
         10          A.     No. 
 
         11          Q.     Are you aware of arsenic ever making 
 
         12   up more than 0.01 percent of waste? 
 
         13          A.     Me personally, no. 
 
         14          Q.     Thank you. 
 
         15                     Switching gears, on March 23rd, 
 
         16   2005, the EPA proposed exempting five industrial 
 
         17   categories from obtaining Title V sources, including 
 
         18   dry cleaners, degreasers and secondary aluminum 
 
         19   smelters, has the Agency considered how this 
 
         20   proposal intersects with what USEPA is proposing? 
 
         21          A.     Well, the USEPA is currently proposing 
 
         22   to exempt what they would call area sources from 
 
         23   their national emissions standards or hazardous air 
 
         24   pollutants.  They have deferred covering these 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       49 
 
 
 
          1   particular permits since the inception of Title V 
 
          2   and now they've made that permanent.  So these 
 
          3   particular deferrals have just continued their 
 
          4   practice since the initial start of that program. 
 
          5   They still need state permits to an extent, they're 
 
          6   not covered by exemption. 
 
          7          Q.     Do you have any view as to what the 
 
          8   EPA is proposing affects the 230 permits you believe 
 
          9   may be exempt under the proposal? 
 
         10          A.     Well, I said this -- they're 
 
         11   continuing that historic practice on keeping these 
 
         12   as area sources, so we have not permitted those 
 
         13   Title V sources in the past, so I don't see any 
 
         14   particular change in our permitting strategy based 
 
         15   on those particular deferrals being made permanent. 
 
         16          Q.     Did the Illinois EPA conduct its 
 
         17   assessment of what other states are doing, or did it 
 
         18   just rely on what IERG has prepared? 
 
         19          A.     We did our own. 
 
         20          Q.     And where is that? 
 
         21          A.     We didn't elect to put it in the 
 
         22   testimony.  ERG did a pretty good job of summarizing 
 
         23   that.  Bob and I just recently went to Wisconsin to 
 
         24   spend two days with them because they're expanding 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       50 
 
 
 
          1   their exemptions list, and we also met with the lady 
 
          2   who was there for the same reason from Minnesota. 
 
          3   Minnesota has no less than 12 different particular 
 
          4   permitting functions to allow people to either avoid 
 
          5   or reduce their permitting.  So we know we are more 
 
          6   conservative in Illinois than the other Region V 
 
          7   states, which would include Ohio, Indiana, Michigan, 
 
          8   Wisconsin, Illinois and Minnesota. 
 
          9          Q.     On the issue of Minnesota, does 
 
         10   Minnesota have any areas that violate federal Air 
 
         11   Quality Standards? 
 
         12          A.     Not that I'm aware of. 
 
         13          Q.     You mentioned Wisconsin, the operative 
 
         14   word is that they are exploring exemptions; is that 
 
         15   correct? 
 
         16          A.     Well, they were mandated by their 
 
         17   legislature to come up with systems to improve their 
 
         18   permitting times and to reduce they're permitting. 
 
         19   So I think it's, I would say, a pretty good 
 
         20   indication that they'll come up with something. 
 
         21          Q.     Are you aware that USEPA has sent a 
 
         22   letter conveying substantial concerns about that 
 
         23   legislation? 
 
         24          A.     No. 
 
 
                        L.A. REPORTING (312) 419-9292 
 
 
 
                                                                       51 
 
 
 
          1          Q.     Are you aware that before a state can 
 
          2   adopt an implement a rule, it has to be approved by 
 
          3   USEPA? 
 
          4          A.     Yes, I am. 
 
          5          Q.     So EPA is the final arbiter as to 
 
          6   whether these comply with the Clean Air Act? 
 
          7          A.     Correct. 
 
          8          Q.     Have you had any discussions with the 
 
          9   USEPA? 
 
         10          A.     No.  These particular levels are all 
 
         11   well below what other people have in their SIPs, so 
 
         12   we don't anticipate having any particular problems 
 
         13   getting them approved by the USEPA.  And those are 
 
         14   states that all have nonattainment areas, so again, 
 
         15   we feel that, as ERG has pointed out, we are a 
 
         16   little more conservative than the states in the 
 
         17   area, and so to that extent, if they deny our SIP, 
 
         18   they would have to basically state to us why they 
 
         19   would allow that in other states. 
 
         20          Q.     Are you aware of any differences that 
 
         21   have occurred in the last couple years between -- 
 
         22   let's try that again. 
 
         23                     In the last two years, the USEPA 
 
         24   has redesignated large areas of each of the five 
 
 
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                                                                       52 
 
 
 
          1   region states with the exception of Minnesota as 
 
          2   nonattainment with the eight-hour ozone and fine 
 
          3   particulate standard; is that correct? 
 
          4          A.     I'm not sure the eight-hour was that 
 
          5   much greater than the one-hour, but the PM 2.5 is 
 
          6   obviously numerous and greater. 
 
          7          Q.     Are you aware of any of these 
 
          8   permitting exemptions that have been approved by 
 
          9   USEPA subsequent to the designations of all these 
 
         10   new nonattainment areas? 
 
         11          A.     I'm not aware of any.  Most of these 
 
         12   have been longstanding.  Again, I seriously doubt 
 
         13   the states are going to go back and undo their 
 
         14   exemptions as part of the compliance plan. 
 
         15                     I think one thing, since you seem 
 
         16   to be going down this road, keep in mind, based on 
 
         17   allowable permitted levels, roughly the largest 
 
         18   five percent of our sources emit 95 percent of our 
 
         19   air pollution, and that's across the board, and 
 
         20   those are all the same precursors that you're 
 
         21   concerned about for PM 2.5 and for ozone. 
 
         22                     Any state's compliance plan or a 
 
         23   plan to bring their areas back into compliance will 
 
         24   be focused on those large sources.  Obviously, it 
 
 
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                                                                       53 
 
 
 
          1   makes a little sense.  The fact that we do not 
 
          2   regulate these particular sources do not mean they 
 
          3   go unaccounted.  The USEPA, when you put together an 
 
          4   inventory, have what they call stationary sources, 
 
          5   which historically are the ones covered by the 
 
          6   permits, level sources and area sources.  So even if 
 
          7   we don't have permits for very small sources, the 
 
          8   USEPA still puts in the inventory an allocation for 
 
          9   those emissions from those sources.  So, again, they 
 
         10   don't go unaccounted for in the overall mix, if you 
 
         11   will, of emissions and how they control into the 
 
         12   future. 
 
         13          Q.     You mentioned that five percent of the 
 
         14   sources cause about 95 percent of the air pollution; 
 
         15   is that correct? 
 
         16          A.     I said that based on their allowable 
 
         17   emissions, as we put them in our report, 95 percent 
 
         18   of those emissions based on allowable sources are 
 
         19   based on those top five.  If you go on actual 
 
         20   emissions reported, it's the top 15 percent. 
 
         21          Q.     That's for the pollutants that 
 
         22   cause -- 
 
         23          A.     Those are all criteria, correct. 
 
         24          Q.     That does not include hazardous air 
 
 
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                                                                       54 
 
 
 
          1   pollutants, correct? 
 
          2          A.     Again, it would not, but majority of 
 
          3   the -- I think we're down to 186 now hazardous air 
 
          4   pollutants, the bulk of those are also regulated as 
 
          5   either volatile organic materials, particulate 
 
          6   matter or some other fashion.  So they're over -- 
 
          7   they're counted as particulate matter or a VOM.  And 
 
          8   in the rare case where you have a hazardous air 
 
          9   pollutant that is not otherwise regulated would be 
 
         10   like an acid gas.  And so we -- those emissions that 
 
         11   you control would be counted in our inventory.  We 
 
         12   don't double count them, if you will. 
 
         13          Q.     With the exception of acid gases? 
 
         14          A.     Right. 
 
         15          Q.     Does Chicago and the metro east area 
 
         16   have problems with levels of hazardous air 
 
         17   pollutants? 
 
         18          A.     How do you define problems? 
 
         19          Q.     Exceeding the EPA's risk of one in a 
 
         20   million cancer? 
 
         21          A.     Well, I don't know if I've seen the 
 
         22   USEPA's listings of that, but they have a program to 
 
         23   address hazardous air pollutants, which is two 
 
         24   parts.  First, for the maximum available control 
 
 
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                                                                        55 
 
 
 
          1   strategy for sources in any one of the 172 source 
 
          2   categories, and then going back into the risk 
 
          3   assessments to determine if there's additional need 
 
          4   to control hazardous air pollutants.  The Illinois 
 
          5   strategy, if you will, is basically to follow the 
 
          6   federal standards. 
 
          7          Q.     Let me try that again. 
 
          8                     Do you consider hazardous air 
 
          9   pollutants a problem in the Greater Chicago metro 
 
         10   east area? 
 
         11          A.     Again, I would suggest -- I'm the 
 
         12   permit section manager, I'm not the one that would 
 
         13   address that particular issue. 
 
         14          Q.     Does this rulemaking propose to exempt 
 
         15   certain sources of hazardous air pollutants? 
 
         16          A.     At very small sources, yes.  It 
 
         17   doesn't prohibit them. 
 
         18                     The USEPA's, I guess, level of 
 
         19   concern trigger for Title V sources is that you have 
 
         20   to emit or have the potential to emit annually ten 
 
         21   tons of any one pollutant or a combination of 
 
         22   25 tons of all of those 186.  That makes you a major 
 
         23   source for hazardous air pollutants in the federal 
 
         24   program. 
 
 
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                                                                       56 
 
 
 
          1                     To take advantage of the ability 
 
          2   to issue hazardous air pollutants as an area source, 
 
          3   obviously, you've got to be well below the major 
 
          4   source threshold and you have to be in a category 
 
          5   thus not covered by a new source performance 
 
          6   standard or a NESHAP.  So to the extent one of those 
 
          7   exist, yes, you have the ability to have increases 
 
          8   in hazardous materials. 
 
          9          Q.     Are you aware of any sources to date 
 
         10   that emit more than ten tons of mercury per year? 
 
         11          A.     No. 
 
         12          Q.     Do we have a serious mercury problem 
 
         13   that exists? 
 
         14          A.     I think you've answered your own 
 
         15   question.  One, there is a concern, but there's 
 
         16   no -- there are -- nobody in this range can permit 
 
         17   mercury to any great degree.  Why would you assume 
 
         18   somebody in a small area source would immediately 
 
         19   have a mercury emission they historically have not 
 
         20   had? 
 
         21          Q.     Are any sources of mercury? 
 
         22          A.     Not that I'm aware of, but, again, I 
 
         23   don't think they would necessarily handle mercury to 
 
         24   the extent that mercury might be a contaminant 
 
 
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                                                                       57 
 
 
 
          1   byproduct. 
 
          2                     I mean, we have -- in the FESOP 
 
          3   sources, we have this .01 percent by weight, we do 
 
          4   not have that for the various small sources.  I 
 
          5   mean, I can't envision where you're going have -- 
 
          6   these types of sources have mercury emissions 
 
          7   because these aren't historically the types of 
 
          8   sources that have that. 
 
          9          Q.     Could we ask that that be an issue 
 
         10   that the Agency address at the next hearing? 
 
         11          A.     Yes. 
 
         12          Q.     Are any of these sources sources of 
 
         13   mercury? 
 
         14          A.     Yeah, I think that would be good. 
 
         15          Q.     Are you aware that Illinois has a 
 
         16   statewide fish consumption advisory because of high 
 
         17   level of mercury in every lake, river or stream, 
 
         18   including Lake Michigan? 
 
         19          A.     Yes. 
 
         20          Q.     A very small amount of mercury can 
 
         21   contaminate a water body; isn't that correct? 
 
         22          A.     I assume. 
 
         23            MR. MATOESIAN:  That's really a question 
 
         24   for the Bureau of Water, not the Bureau of Air. 
 
 
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                                                                       58 
 
 
 
          1            HEARING OFFICER ANTONIOLLI:  Okay. 
 
          2   BY MR. NILLES: 
 
          3          Q.     The last issue is, would it be 
 
          4   possible for the Agency to provide an updated list 
 
          5   as to update -- let me back up. 
 
          6                     Are you familiar with attachment 
 
          7   Exhibit 1 to Ms. Hodge's prefiled testimony? 
 
          8          A.     Yes. 
 
          9            HEARING OFFICER ANTONIOLLI:  Actually, 
 
         10   we haven't yet entered Ms. Hodge's prefiled 
 
         11   testimony into the record yet, would you like to 
 
         12   move at this time to do that before we -- 
 
         13            MS. DRIVER:  I would. 
 
         14            HEARING OFFICER ANTONIOLLI:  And I have a 
 
         15   copy of it in front of me. 
 
         16                Does anyone object at this time to 
 
         17   entering Ms. Hodge's prefiled testimony into the 
 
         18   record as Exhibit 2? 
 
         19                And seeing none, I will mark that as 
 
         20   Exhibit 2, and you can go ahead and ask questions 
 
         21   about it. 
 
         22   BY MR. NILLES: 
 
         23          Q.     Is it possible for the Agency to 
 
         24   update the 2000, 2001 number in Exhibit 1? 
 
 
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                                                                       59 
 
 
 
          1          A.     Yes.  I think we would have the 
 
          2   information through -- solid through December of 
 
          3   '04. 
 
          4          Q.     The Agency is close to finalizing all 
 
          5   of its Title V permits; is that correct? 
 
          6          A.     That's correct. 
 
          7          Q.     So this table is going to look very 
 
          8   different from what it did in 2000, 2001; is that 
 
          9   correct? 
 
         10          A.     Well, I think you got to understand 
 
         11   this table.  It will -- first of all, the operating 
 
         12   permits are the operating permits.  They're ongoing. 
 
         13   The number of construction permits that we issue 
 
         14   Title V sources varies over time.  The number of 
 
         15   Title V permits we issue are now into renewals, so 
 
         16   I'm not sure there's going to be a huge number. 
 
         17                Where do you envision a change? 
 
         18          Q.     The Agency is almost done issuing all 
 
         19   of it's round one of Title V permits; is that 
 
         20   correct? 
 
         21          A.     Right. 
 
         22          Q.     In 2000 and 2001, the Agency issued 
 
         23   approximately 882 Title V permits? 
 
         24          A.     No. 
 
 
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                                                                        60 
 
 
 
          1          Q.     Excuse me.  Can you tell me what 
 
          2   Exhibit 1 says then? 
 
          3          A.     Well, that -- what I was trying to -- 
 
          4   we issued -- we had operating permits for these 
 
          5   existing sources, so the operating -- that's this 
 
          6   particular table, and we can present this in a 
 
          7   different fashion when we update.  These are 
 
          8   existing sources. 
 
          9                What I propose we could bring at the 
 
         10   next hearing is the number of construction permits 
 
         11   we issued by category and the number of operating 
 
         12   permit modifications, if you will, be it new or 
 
         13   renewal or revised, and we can provide that 
 
         14   information.  And that may provide a little level of 
 
         15   clarity. 
 
         16                This was basically how we provided -- 
 
         17   they asked for the information, that is how we 
 
         18   provided it.  But, like I said, we issue roughly 
 
         19   somewhere in the neighborhood of 1,800 permits a 
 
         20   year -- permitting actions, if you will, and that's 
 
         21   a breakdown we can provide. 
 
         22          Q.     My last question is, did the Agency 
 
         23   consider exempting specific types of industrial 
 
         24   sources rather than broad brush based on emissions? 
 
 
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                                                                       61 
 
 
 
          1          A.     Well, historically, that is an 
 
          2   approach we've taken.  What this particular attempt 
 
          3   was to do was basically bring parity for the FESOP 
 
          4   sources and maybe a little bit beyond for the 
 
          5   smaller sources to what is already allowed under 
 
          6   Title V sources under insignificant activities. 
 
          7   The non-HAP emissions and CAAPP sources are 
 
          8   insignificant if they're less than one pound an 
 
          9   hour.  If hazardous is less than .1 an hour, and 
 
         10   they have the ability to write their own, you can 
 
         11   raise that higher. 
 
         12                     So to the extent those are 
 
         13   emissions at our largest sources, which are the 
 
         14   source of our emissions, those are obviously the 
 
         15   ones we're most concerned about, so bringing these 
 
         16   exemptions down to the smaller sources seem to make 
 
         17   sense to us.  And, again, we've taken the more 
 
         18   conservative approach, and they don't actually have 
 
         19   the ability to get as high as the insignificant 
 
         20   activities the federal government allows under 
 
         21   Title V. 
 
         22            MR. NILLES:  No further questions.  Thank 
 
         23   you. 
 
         24            HEARING OFFICER ANTONIOLLI:  Mr. Matoesian, 
 
 
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                                                                       62 
 
 
 
          1   would you like to follow up on any of these 
 
          2   questions at this time before we proceed with 
 
          3   questions for Ms. Hodge? 
 
          4            MR. MATOESIAN:  You can proceed with 
 
          5   questions. 
 
          6            HEARING OFFICER ANTONIOLLI:  Okay. 
 
          7            MS. DRIVER:  I actually would like follow 
 
          8   up with Mr. Sutton, if that's all right? 
 
          9            HEARING OFFICER ANTONIOLLI:  Sure. 
 
         10   BY MS. DRIVER: 
 
         11          Q.     The question was asked about the 
 
         12   exemption for small sources and, I think, 
 
         13   Mr. Sutton, you stated that that was the one permit 
 
         14   exemption where there wasn't a HAP restriction in 
 
         15   it? 
 
         16          A.     Right. 
 
         17          Q.     Let's assume that that exemption was 
 
         18   not in place as is currently the case right now and 
 
         19   someone files a permit application for the type of 
 
         20   activity that that permit exemption would fit, would 
 
         21   you have any ability to not issue that permit under 
 
         22   normal circumstances in compliance and mapped as a 
 
         23   trigger and so forth? 
 
         24          A.     Well, I mean, first of all, the source 
 
 
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          1   cannot be covered by new source performance 
 
          2   standard, NESHAP, PSD or new source review, which 
 
          3   these are all small sources.  They wouldn't -- so I 
 
          4   if I understand your question, if the source came in 
 
          5   and said, I want a permit for something that doesn't 
 
          6   need a permit, historically, the reaction would be 
 
          7   we write back and say no permits required. 
 
          8          Q.     And, currently, if this sort of 
 
          9   application is being filed right now, would you have 
 
         10   a basis for rejecting the permit? 
 
         11          A.     No.  There would -- I mean, this 
 
         12   particular case, because there's no underlying 
 
         13   regulation, we basically take the money and issue 
 
         14   them the permit. 
 
         15          Q.     Okay, thank you. 
 
         16                     The question was raised to you 
 
         17   about how the Agency is going to determine whether 
 
         18   people are complying with these permit exemptions, 
 
         19   and I recall that you stated that the Board Rule 
 
         20   201.146 already has several permit exemptions in 
 
         21   place, then the Agency already does have some 
 
         22   procedure for determining compliance with permit 
 
         23   exemption? 
 
         24          A.     Well, again, to the extent that we 
 
 
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          1   would show up at a location that has -- first of 
 
          2   all, they are permitted sources, so we show up -- 
 
          3   historically, what we would have done, our field 
 
          4   staff would do, we'd go categorize an inventory of 
 
          5   what's there as far as an emission source, and to 
 
          6   the extent -- ask if it's permitted, and if not, why 
 
          7   not, and if they knew, for example, that the boiler 
 
          8   was less than 10 million BTUs, they would ask about 
 
          9   that.  They would basically say, okay, that's an 
 
         10   exempt oil.  And so to the extent there is some 
 
         11   level of confusion, they may ask the source which 
 
         12   exemption you think you fall under.  And we've 
 
         13   actually, I'm sure, had been sent compliance letters 
 
         14   to people who've come back and said, well, no, we 
 
         15   are exempt because we do this.  So when in doubt, 
 
         16   ask. 
 
         17            BOARD MEMBER THOMAS:  Can I -- because I 
 
         18   had a question almost exactly along that line. 
 
         19   BY BOARD MEMBER THOMAS: 
 
         20          Q.     It's my understanding, I think, your 
 
         21   testimony that regarding those inspections, the 
 
         22   process that you go through now -- or the process 
 
         23   that you would go through with regard to these 
 
         24   proposed new exempt sources is the exact same 
 
 
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          1   process that you currently go through with regard to 
 
          2   sources that are now exempt? 
 
          3          A.     Yes.  The one slight difference is 
 
          4   that, historically, we have written our exemptions 
 
          5   to address fixed objects, if you will, storage 
 
          6   tanks, boilers, processes, this opens up the 
 
          7   category in that is it based on emissions, so those 
 
          8   sources will have to, to an extent, be able to 
 
          9   confirm that the emissions are less than .1 pound 
 
         10   per hour or .5 pounds per hour, so we'll have to 
 
         11   have some basis for that knowledge, if you will. 
 
         12          Q.     Okay. 
 
         13          A.     And where we're really hitting is the 
 
         14   problem, if you will, with our exemption list is 
 
         15   that there are certain things that -- well, the 
 
         16   USEPA, when it did the insignificant activities, to 
 
         17   make sure that there was no question, threw in 
 
         18   categories for bathrooms, Xerox machines, 
 
         19   cafeterias, lawn maintenance, because they didn't 
 
         20   want anybody coming in arguing, well, yeah, there is 
 
         21   emissions when you mow the grass.  So is that 
 
         22   something to worry about, no. 
 
         23                     So to that extent we have -- and 
 
         24   we get calls from people saying, we have something 
 
 
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          1   we think is near zero emissions, if you will.  We 
 
          2   don't know if there's emissions or not, but we can't 
 
          3   find any on your exemption list.  Well, then, 
 
          4   unfortunately, we'd have to probably -- the safe bet 
 
          5   would be go ahead and issue a permit.  This will 
 
          6   allow those people to proceed without that. 
 
          7            HEARING OFFICER ANTONIOLLI:  And like 
 
          8   it states in the proposal that the owner or operator 
 
          9   assumes the responsibility and the risk for 
 
         10   inaccurate determinations. 
 
         11            MR. SUTTON:  Always. 
 
         12            HEARING OFFICER ANTONIOLLI:  And, 
 
         13   specifically, regarding the de minimis emissions 
 
         14   threshold. 
 
         15            MR. SUTTON:  That's correct. 
 
         16   BY MS. DRIVER: 
 
         17          Q.     While we're talking -- 
 
         18            MR. NILLES:  Could I go ahead and ask 
 
         19   a question or -- is that okay? 
 
         20            MS. DRIVER:  Go ahead. 
 
         21   BY MR. NILLES: 
 
         22          Q.     Any there any record keeping 
 
         23   requirements to ensure that the inspector can look 
 
         24   at when he or she showed up at the source to 
 
 
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          1   actually verify that they are exempt? 
 
          2          A.     We haven't defined those, but we have, 
 
          3   and Bob has pointed out to me, we have some of our 
 
          4   exemptions currently, they are written based on 
 
          5   record retention.  There is exemptions, for example, 
 
          6   that if you use less than 5,000 gallons of coating, 
 
          7   then you're exempt.  So to that extent, we don't 
 
          8   tell those people what records to keep, but they 
 
          9   have to have enough records to demonstrate it's 
 
         10   listed 5,000 gallons a year, be it purchase records, 
 
         11   whatever.  But they have to have some form of proof 
 
         12   they use less than 5,000 gallons a year.  Similarly, 
 
         13   these people then would be on their own to determine 
 
         14   what is accurate record keeping to ensure they're in 
 
         15   compliance, be it the .44 tons or less than .1 
 
         16   pounds per hour.  Again, a lot, I think, would 
 
         17   entail use of materials and what makes up those 
 
         18   materials. 
 
         19          Q.     You mentioned that a lot of sources -- 
 
         20   that you receive calls from people saying this 
 
         21   activity, we think, is below the threshold, but it 
 
         22   doesn't fall under one of the exemptions, do you 
 
         23   have those categories listed anywhere as to -- do 
 
         24   people call you about X activity over the last 
 
 
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          1   decade and say, you know, it doesn't quite fit under 
 
          2   the exemption, wish we had one? 
 
          3          A.     Well, I'm sure there's some of that, 
 
          4   and I -- we, I don't think, have been keeping an 
 
          5   extensive record of what types of areas we want to 
 
          6   think about expanding next into, but there are some 
 
          7   areas there that, you know, have come up.  I, off 
 
          8   the top of my head, can't tell you one, a for 
 
          9   instance.  We have an office of small businesses 
 
         10   people contact and also DECA -- it's not DECA 
 
         11   anymore, it's Department of Commerce and Economic 
 
         12   Opportunity, that has an office of small business. 
 
         13   Like say we want to push that, we would ask them 
 
         14   what kind of calls they're getting and what kind of 
 
         15   help they've been provided. 
 
         16          Q.     Is it possible to provide, at the next 
 
         17   hearing, a list of the calls or requests for 
 
         18   information the Agency has received where the Agency 
 
         19   believes these should clearly be exempt, and that's 
 
         20   what we're trying to get at, because what we're 
 
         21   struggling with is this sledgehammer approach, and 
 
         22   its approach that's basically being proposed that is 
 
         23   exempting based on emission totals rather than 
 
         24   narrowly targeted to the problem of the Agency in 
 
 
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          1   hearing about it from the industry, and, I guess, if 
 
          2   you have records of hearing from industries saying, 
 
          3   you know, we all agree that these particular type of 
 
          4   activities should be regulated, then is that the 
 
          5   ultimate way to proceed? 
 
          6                     And also -- 
 
          7          A.     I don't know if we can provide -- 
 
          8            HEARING OFFICER ANTONIOLLI:  Proponent, 
 
          9   would you like to comment on that question?  I think 
 
         10   what he was asking is if either of you could provide 
 
         11   any sort of follow-up to the question he had 
 
         12   specifically about what response you get from the 
 
         13   public on exemptions for particular sources? 
 
         14            MS. DRIVER:  Are you asking for the Agency 
 
         15   to generate records, or are you asking for records 
 
         16   they may have? 
 
         17            MR. NILLES:  Mr. Sutton testified that he 
 
         18   receives calls from people who say, we think we're 
 
         19   very close to the exemption threshold, but we're not 
 
         20   listed, and his advice in current law is, if you're 
 
         21   not listed, err on the side of caution, pay your 
 
         22   money, get the permit. And if he has been receiving 
 
         23   calls about specific types of activity that we all 
 
         24   agree should be exempt, is that not a more targeted 
 
 
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          1   way to get at this problem than issuing a general 
 
          2   exemption that allows unknown sources and unknown 
 
          3   potential problems down the road? 
 
          4                MR. SUTTON:  Well, first, I don't 
 
          5   know -- we don't keep records of the calls, so I 
 
          6   don't think we can provide that level of 
 
          7   information, and I don't know if it's -- it's been a 
 
          8   very broad brush as far as areas go, so I don't know 
 
          9   if there's been a concentration.  And that was why 
 
         10   we were hoping to take this particular approach, 
 
         11   because, again, we're talking 800 pounds a year for 
 
         12   a FESOP source as far as an emission goes, so these 
 
         13   are extremely small levels of emissions, and it's 
 
         14   for even the larger -- for the -- the 800 pounds, 
 
         15   again, for a small source, we're suggesting that it 
 
         16   could go up to a half a pound an hour, which is 
 
         17   roughly a little over two tons a year by 
 
         18   notification.  And then that gives us the 
 
         19   opportunity, though, it doesn't stop somebody from 
 
         20   adding that particular unit, to at least let us know 
 
         21   those units are going in and will those particular 
 
         22   units raise any concern from us as far as being 
 
         23   possibly mischaracterized or have some potential 
 
         24   problems.  So that is why we threw the notification 
 
 
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          1   clause in for the, if you will, slightly larger 
 
          2   units. 
 
          3                Again, we're talking such small amounts 
 
          4   of emissions that I'm afraid that, you know -- it 
 
          5   just stops the discussion on are you really worried 
 
          6   about a 600-pound-a-year emission source whether 
 
          7   it's exempt or not, and we're saying, we would not 
 
          8   likely prefer not to worry about it not covered by a 
 
          9   permit. 
 
         10            HEARING OFFICER ANTONIOLLI:  Thank you. 
 
         11                Ms. Driver, would you like to continue? 
 
         12            MS. DRIVER:  Yes, thank you. 
 
         13   BY MS. DRIVER: 
 
         14          Q.     While we're on the discussion of the 
 
         15   current permit exemption, there was some question 
 
         16   raised, Mr. Sutton, about the need to obtain USEPA 
 
         17   approval for the proposal that we have today.  The 
 
         18   Agency, obviously, has proposed permit exemptions in 
 
         19   the past as manifested by that list, also, has, as 
 
         20   you've testified to, had in place the insignificant 
 
         21   activities thresholds, was there any issue with 
 
         22   USEPA about those insignificant activities 
 
         23   thresholds in the past, such that you would be 
 
         24   concerned about them being carried over to the minor 
 
 
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          1   source and FESOP source and the CAAPP source on the 
 
          2   construction side? 
 
          3          A.     Well, the insignificant activities 
 
          4   portion of our program was approved as part of the 
 
          5   overall Title V permit program, and I don't recall 
 
          6   having any particular controversy raised with our 
 
          7   insignificant activities list at that time, so to 
 
          8   follow that, yeah, I would not presume they would 
 
          9   have a particular problem with having our exemptions 
 
         10   match these. 
 
         11                We took an effort shortly after the 
 
         12   insignificant activity to expand or to double our 
 
         13   list, and the USEPA thought, nah.  Again, this goes 
 
         14   into the few areas that we didn't pull back at that 
 
         15   time.  So no, I personally don't envision we would 
 
         16   have a problem with it. 
 
         17          Q.     And following up on that, the effort 
 
         18   that you are discussing about expanding the permit 
 
         19   exemption list, I know you get to this in your 
 
         20   prefiled testimony, was there any significant 
 
         21   concern expressed from the environmental groups in 
 
         22   those proceedings? 
 
         23          A.     Not that I'm aware of. 
 
         24          Q.     Also, you were asked several questions 
 
 
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          1   about medical waste incinerators, and at one point, 
 
          2   were asked about the permit exemption for the 
 
          3   replacement of air pollution control equipment, 
 
          4   which is in the proposal as proposed Section (hhh). 
 
          5                You had been asked if the medical waste 
 
          6   incinerator is going to replace controls, what would 
 
          7   happen with the permit exemption to that scenario? 
 
          8   Could I just call your attention to Subsection 4 
 
          9   under proposed Section (hhh) and hear your thoughts 
 
         10   about how that provision would impact the use of a 
 
         11   permit exemption for replacement of air pollution 
 
         12   control equipment at a source like a medical waste 
 
         13   incinerator? 
 
         14          A.     Well, the attempt under (hhh) 4 was 
 
         15   not necessarily addressed at medical waste 
 
         16   incinerators because there already is a MACT in 
 
         17   place for them, but what our -- if the USEPA 
 
         18   proposes a MACT standard for an emission unit, 
 
         19   sources have up to three years to come into 
 
         20   compliance with that MACT and -- 
 
         21            HEARING OFFICER ANTONIOLLI:  Mr. Sutton, 
 
         22   can you explain what MACT is, too, for the record? 
 
         23            MR. SUTTON:  We use a lot of acronyms 
 
         24   in our business. 
 
 
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                                                                       74 
 
 
 
          1            HEARING OFFICER ANTONIOLLI:  We do. 
 
          2            MR. SUTTON:  Maximum Available Control 
 
          3   Technology. 
 
          4            HEARING OFFICER ANTONIOLLI:  Thanks. 
 
          5   BY MR. SUTTON: 
 
          6          A.     The USEPA basically enforces what -- 
 
          7   the intent under their NESHAP program, which is 
 
          8   National Emissions of Standards for Hazardous Air 
 
          9   Pollutants is, again, looking at the top 12 percent 
 
         10   of a particular SIC code enforcing all the other 
 
         11   people to put that level of control on.  And so 
 
         12   that's how they come up with this Maximum Available 
 
         13   Control technology. 
 
         14                     Once they propose that under a 
 
         15   NESHAP, all new sources have to immediately put that 
 
         16   level of control on.  Existing sources have up to 
 
         17   three years to come into compliance.  What we're 
 
         18   trying to do here is saying that they need to come 
 
         19   into compliance with a MACT.  They may have to put 
 
         20   on control devices.  Those control devices would 
 
         21   still  be covered by the MACT and they wouldn't be 
 
         22   covered by this particular exemption, so that was 
 
         23   our intent there. 
 
         24                     When Bruce asked the question, 
 
 
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          1   yes, a medical waste incinerator can put on -- 
 
          2   replace it's control as long as the control that 
 
          3   it's adding is equal to or better than what they 
 
          4   have in place already has no collateral increase 
 
          5   with any other pollutant and has adequate controls 
 
          6   to monitor its emissions.  So to that extent -- and 
 
          7   the source has to have been in compliance for the 
 
          8   last year, we felt there would be no increase and 
 
          9   should, in fact, be a decrease in emissions. 
 
         10            MS. DRIVER:  Can I have just a 
 
         11   moment, please? 
 
         12            HEARING OFFICER ANTONIOLLI:  Sure. 
 
         13                      (Brief pause.) 
 
         14            MS. DRIVER:  I believe we're finished 
 
         15   with our questions for Mr. Sutton. 
 
         16            HEARING OFFICER ANTONIOLLI:  Okay. 
 
         17            BOARD MEMBER MELIS:  Can I take a 
 
         18   follow-up on this discussion? 
 
         19            MR. SUTTON:  Yes. 
 
         20   BY BOARD MEMBER MELIS: 
 
         21          Q.     I'm looking at, again, this (hhh), 
 
         22   in Item 2 and 3, you refer to the term target 
 
         23   pollutants and then collateral pollutants, 
 
         24   respectively. 
 
 
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          1                what is the meaning of -- or what do 
 
          2   you interpret as the meaning of what is a target 
 
          3   pollutant, what is a collateral pollutant? 
 
          4          A.     Well, the easiest example, I think, to 
 
          5   explain that is if you have volatile organic 
 
          6   material as an emission that you want to control, 
 
          7   whether it's hazardous or not, that would be the 
 
          8   target pollutant.  And though what you're trying to 
 
          9   do is, Bruce pointed out, is to reduce ozone.  Ozone 
 
         10   is not released in the atmosphere, it's actually 
 
         11   created in the atmosphere, where some might be in 
 
         12   volatile organic materials.  So to reduce ozone, you 
 
         13   control VOM.  By doing so -- so that would be your 
 
         14   target pollutant, you want to reduce VOMs.  You 
 
         15   might do that by way of an afterburner, where you 
 
         16   physically burn that up, and so you might achieve 98 
 
         17   or 99 percent destruction of that volatile organic 
 
         18   material, but by doing so, you would actually 
 
         19   release nitrous oxides or carbon monoxide, which are 
 
         20   also what would be called collateral pollutants. 
 
         21                And so what we're saying is by 
 
         22   increasing your pollution control device, not only 
 
         23   do you have to do a better job or equal job with 
 
         24   your pollutant that you're concerned about, but you 
 
 
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          1   cannot create another emission when doing so. 
 
          2                A more simple example is if you have 
 
          3   currently have a cyclone, which is a device that 
 
          4   controls particulate matter, it just controls 
 
          5   particulate matter, doesn't do anything else, you 
 
          6   replace that with a bag house, which is equivalent 
 
          7   to the bag in your vacuum cleaner, that does a 
 
          8   considerably better job of reducing those 
 
          9   particulate matter and has no particular other 
 
         10   impact on any other pollutant. 
 
         11            HEARING OFFICER ANTONIOLLI:  Do you 
 
         12   think then, proponents, that collateral pollutant 
 
         13   would be something that needs to be defined in the 
 
         14   rulemaking language, if it's something that's not 
 
         15   typically seen in other Board rules? 
 
         16            MR. SUTTON:  I think we'd be happy to. 
 
         17            HEARING OFFICER ANTONIOLLI:  Do you 
 
         18   want to continue? 
 
         19   BY BOARD MEMBER MELIS: 
 
         20          Q.     Then one other question that I had on 
 
         21   (hhh), in Item Number 4, you use the term different 
 
         22   regulatory or newly proposed regulatory requirements 
 
         23   will not apply to the unit.  Would you clarify, what 
 
         24   do you mean newly proposed, do they refer to 
 
 
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          1   proposed requirements being considered by the Board 
 
          2   or other requirements that are replaced? 
 
          3          A.     Our intent here, again, was to 
 
          4   predominantly focus on new federal requirements, and 
 
          5   that would be -- the newly proposed would be under 
 
          6   NESHAPs, the most likely one. 
 
          7   BY BOARD MEMBER LIU: 
 
          8          Q.     If that's your intent, to just talk 
 
          9   about new federal proposals in order to not have 
 
         10   some outside group come in and propose a new thing, 
 
         11   would you want to include that word federal in 
 
         12   there, that might not happen? 
 
         13          A.     I think we left it open, also, because 
 
         14   we also have to come up with new strategies for 
 
         15   coming into compliance.  So if we determine there's 
 
         16   a need to further reduce something, this wouldn't 
 
         17   let them out of that.  So we haven't come up with 
 
         18   our strategies yet, but they may require some 
 
         19   additional controls of existing sources. 
 
         20                So what we don't want to happen is 
 
         21   someone to say, because I did this exemption, I no 
 
         22   longer have to comply with a future nox whack rule 
 
         23   (phonetic) if we elect to go that way.  So I guess I 
 
         24   would be reluctant to add that clarifier. 
 
 
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          1          Q.     Do you envision a problem, for 
 
          2   instance, if somebody wanted to take advantage of 
 
          3   that statement as it's worded now, to kind of throw 
 
          4   a monkey wrench into the works, when you say, newly 
 
          5   proposed, that could mean at any level then, could 
 
          6   be a state or federal level, or anyone can propose 
 
          7   something before the Board at any time? 
 
          8          A.     Yeah, that is correct.  I assume, 
 
          9   check with my counsel, but probably state or federal 
 
         10   regulation would help clarify it. 
 
         11            MR. MATOESIAN:  Yeah. 
 
         12            HEARING OFFICER ANTONIOLLI:  Or 
 
         13   something -- and you do mean something that hasn't 
 
         14   yet been adopted? 
 
         15   BY MR. SUTTON: 
 
         16          A.     Partly because under the MACT 
 
         17   standard, generally, you have to comply with them 
 
         18   whether they're formally adopted or not, at least 
 
         19   for new sources, so that's why we put the newly 
 
         20   proposed. 
 
         21            MS. HODGE:  And, again, if I may, 
 
         22   this is a permit exemption, not an exemption from 
 
         23   otherwise applicable regulatory requirements.  This 
 
         24   is just a permit exemption. 
 
 
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          1            HEARING OFFICER ANTONIOLLI:  Okay. 
 
          2            MR. NILLES:  May I ask a follow-up? 
 
          3            HEARING OFFICER ANTONIOLLI:  Go ahead. 
 
          4   BY MR. NILLES: 
 
          5          Q.     Is this now putting the cart before 
 
          6   the horse?  Because I just heard you say, we may 
 
          7   need to regulate these sources to meet the new 
 
          8   particulate standard, and if we do, we don't want to 
 
          9   create an exemption, so why would we create an 
 
         10   exemption until we know whether or not we need these 
 
         11   sources as a part of the solution to fix air quality 
 
         12   in Chicago and the metro east? 
 
         13   BY MR. SUTTON: 
 
         14          A.     Well, what I meant to say, but it 
 
         15   didn't come out that way, is we do not want to cut 
 
         16   off any options into the future.  And nothing in 
 
         17   these particular exemptions says anybody can violate 
 
         18   a state or federal requirement, and so that will 
 
         19   continue into the future.  We can't do that. 
 
         20                So this was just to provide clarity 
 
         21   that if you anticipate doing something in the 
 
         22   future, we may still come back and ask for more. 
 
         23   That was the only purpose for putting it in there. 
 
         24          Q.     And that would require them to have a 
 
 
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          1   permit so you can actually work out what they're 
 
          2   doing, right? 
 
          3          A.     To the extent we come up with a new 
 
          4   regulation that says something has to be controlled, 
 
          5   that will become something -- it more than likely 
 
          6   would become a regulation, obviously, that they'll 
 
          7   have to comply with.  If we elect to go with the 
 
          8   commanding control route, yes, they would need a 
 
          9   permit probably to bring them down to those levels. 
 
         10   We're not saying that may be the approach we take. 
 
         11          Q.     You don't know? 
 
         12          A.     Well, clearly, we may elect to take 
 
         13   some level of training program much like our arms 
 
         14   program as a means for that.  And so we're just 
 
         15   saying here, making it clear that people still have 
 
         16   to comply with underlying regulations, and that was 
 
         17   the intent of the language. 
 
         18          Q.     Just a question of timing, when is the 
 
         19   State obligation to submit to EPA its plan for 
 
         20   meeting the ozone and fine particulate standard? 
 
         21          A.     Again, I'm not the proper person to 
 
         22   answer that question, and whatever it is, it'll 
 
         23   probably be somewhat stayed by the fact they haven't 
 
         24   answered their implementation guidance yet, so their 
 
 
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          1   deadline might come and go where if they don't 
 
          2   provide the guidance, it's going to be very hard to 
 
          3   meet that requirement. 
 
          4          Q.     Maybe I can ask at the next meeting 
 
          5   that the Agency clarify what the deadline is, 
 
          6   because there is a deadline, to when it has to 
 
          7   propose to USEPA, after having the Board adopt rules 
 
          8   to meet the eight-hour ozone fine particulate 
 
          9   standard, and I believe it's within the next 12 
 
         10   months. 
 
         11                And so at this point, with the Agency 
 
         12   not clear as to what we need to have in that plan, 
 
         13   moving forward with a permit exemption for sources 
 
         14   that may have to be regulated seems, again, putting 
 
         15   the cart before the horse? 
 
         16          A.     And I would like to go on record 
 
         17   saying it's clear we do not envision controlling 
 
         18   these sources to that level.  And to the extent 
 
         19   Title V sources, the major sources, have to be 
 
         20   controlled, this would not impact that decision. 
 
         21            HEARING OFFICER ANTONIOLLI:  Okay, go 
 
         22   ahead. 
 
         23   BY MS. DRIVER: 
 
         24          Q.     Mr. Sutton, possible background on 
 
 
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          1   this (hhh) 4 provision, you've talked about the fact 
 
          2   that this exemption would not apply where a MACT 
 
          3   standard is in place, is it possible that the newly 
 
          4   proposed regulatory requirements came about as a 
 
          5   concern that a proposed new source performance 
 
          6   standard, for instance, could be coming in just 
 
          7   about the time that someone is about to put a new 
 
          8   replacement pollution control device in place, and 
 
          9   the concern was not for people to beat the new 
 
         10   standard coming in, just to make sure that the 
 
         11   exemption covers rules that are in place and those 
 
         12   that are about to be coming into place, is it that 
 
         13   that's really what the genesis of this language was 
 
         14   getting at, since this is really a permit exemption, 
 
         15   not an exemption from regulatory compliance? 
 
         16          A.     Well, clearly, it is not an exemption 
 
         17   from regulatory requirements, and that's what we 
 
         18   want to -- I guess we just want to put a note of 
 
         19   caution in here that if you are a large source and 
 
         20   you have a control device in place, just knowing 
 
         21   where the U.S. Government is heading is important. 
 
         22   Not so much because the exemption -- because, again, 
 
         23   to meet the rest of these, you have to put on a 
 
         24   control that's been what you have in place today. 
 
 
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          1   It's just that be aware that if there is something 
 
          2   out there that you're going to have to meet, you'll 
 
          3   still have to meet it.  I think if you really want 
 
          4   to do it, you can almost just make the Board a note 
 
          5   that says, if you will, you still have to comply 
 
          6   with underlying federal regulations and future 
 
          7   State regulations.  So if it's causing that much 
 
          8   confusion, that's not a problem. 
 
          9            HEARING OFFICER ANTONIOLLI:  Okay, thank 
 
         10   you.  Mr. Melis, do you have any further questions? 
 
         11            BOARD MEMBER MELIS:  None. 
 
         12            HEARING OFFICER ANTONIOLLI:  Anyone 
 
         13   else from the Board Members or technical unit? 
 
         14            BOARD MEMBER LIU:  I have some 
 
         15   follow-up questions. 
 
         16            MR. SUTTON:  Sure. 
 
         17   BY BOARD MEMBER LIU: 
 
         18          Q.     Regarding the proposed 
 
         19   Subsection (iii) 2, in the statement of reasons it 
 
         20   notes that the threshold at the .01 percent by 
 
         21   weight corresponds to insignificant activity 
 
         22   regulations for the CAAPP sources, could you please 
 
         23   clarify whether the statement of reasons is 
 
         24   referring to the provisions in Section 201.209 that 
 
 
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          1   deal with the initiative CAAPPs, that section -- I 
 
          2   have it, if you want it. 
 
          3          A.     I brought my own copy.  I agree. 
 
          4          Q.     Section 201.209 includes de minimis 
 
          5   thresholds of .01 percent as well as .1 percent 
 
          6   depending on the type and quantity of CAAPP being 
 
          7   emitted by the source, we were wondering if you 
 
          8   could clarify whether the use of the threshold, 
 
          9   .01 percent, was intended to reflect the more 
 
         10   conservative threshold, or if there was perhaps 
 
         11   another reason why you picked .01 over .1? 
 
         12          A.     Well, one, we took the conservative 
 
         13   approach, and two, generally, this is the lowest as 
 
         14   they actually record on an MSDS sheet, so what we're 
 
         15   basically saying is you shouldn't have a hit on your 
 
         16   MSDS sheet for any hazardous air pollutants. 
 
         17          Q.     And, also, I'd like to ask you another 
 
         18   question that you discussed earlier in response to 
 
         19   questions from Mr. Nilles and Ms. Driver, but I was 
 
         20   hoping you can just clarify it a little bit more. 
 
         21                Regarding the proposed exemptions in 
 
         22   Subsection (jjj) for the smallest sources which are 
 
         23   not CAAPP sources or joint FESOPs, you mentioned 
 
         24   that he didn't purposefully include that .01 percent 
 
 
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          1   limit, we were wondering perhaps why that was? 
 
          2          A.     Well, Title V sources are the largest 
 
          3   sources and have generally, historically, the most 
 
          4   hazardous air pollutants emitted from them, and are 
 
          5   sources that are only a Title V source because it 
 
          6   has air pollutants. 
 
          7                In the FESOPs, most of those people 
 
          8   have taken them as to avoid triggering that Title V 
 
          9   criteria pollutant, but there may be some who have 
 
         10   actually taken the limit to avoid triggering Title V 
 
         11   from a hazardous air pollutant basis. 
 
         12                To quality for the lifetime sources, 
 
         13   your potential to emit has to be considerably less 
 
         14   than what would make you major.  So with the caveat 
 
         15   that this doesn't excuse them from any hazardous air 
 
         16   pollutants regulation, the USEPA may come under 112 
 
         17   for an area source, we felt that these people were 
 
         18   not as serious of a risk for hazardous air pollutant 
 
         19   emissions, and that they would be far enough from 
 
         20   the regulatory trigger that they would be of 
 
         21   concern. 
 
         22            BOARD MEMBER LIU:  Thank you. 
 
         23                Ms. Hodge, I do have one question 
 
         24   for you as well. 
 
 
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          1                 MS. HODGE:  Okay. 
 
          2   BY BOARD MEMBER LIU: 
 
          3          Q.     In your testimony, in particular, on 
 
          4   the prefiled testimony on Page 3, you mentioned that 
 
          5   this is phase one of what you call improving the air 
 
          6   permitting system or streamlining it, anticipating 
 
          7   that maybe there would be future phases to this, and 
 
          8   I was wondering if you could kind of give us an 
 
          9   outlook of what you see that future looking like? 
 
         10   BY MS. HODGE: 
 
         11          A.     Certainly, I'd be glad to. 
 
         12                     The executive committee of the 
 
         13   Illinois Environmental Regulatory Group has been 
 
         14   involved in a streamlining project of sorts, as I 
 
         15   said before, for several years, and it's not just 
 
         16   limited to the Bureau of Air.  We are looking at the 
 
         17   different bureaus at the Agency and looking at 
 
         18   opportunities for streamlining, and we hope that 
 
         19   we'll be coming forward to the Board within the next 
 
         20   six months or so with some additional streamlining 
 
         21   proposals for -- the ones we've identified right now 
 
         22   deal with Bureau of Air permitting issues, as well 
 
         23   as Bureau of Water permitting issues.  We are a 
 
         24   little bit further behind probably on the Bureau of 
 
 
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          1   Land.  But yes, we do have things that we're working 
 
          2   on right now and we hope to be coming forward. 
 
          3            BOARD MEMBER LIU:  Thank you. 
 
          4            HEARING OFFICER ANTONIOLLI:  Anyone else, 
 
          5   questions? 
 
          6            MR. NILLES:  A couple questions for 
 
          7   Ms. Hodge. 
 
          8   BY MR. NILLES: 
 
          9          Q.     You mentioned other streamlining 
 
         10   issues, are you in discussions with IEPA right now 
 
         11   about those streamlining proposals? 
 
         12          A.     Not right now, we are not. 
 
         13          Q.     Can you give us more specifics about 
 
         14   areas that you're considering? 
 
         15                MS. DRIVER:  I'm going to object to 
 
         16   that just for -- those are internal discussions 
 
          17   right now.  We're not talking about it with people 
 
         18   outside the group, and I think that needs to remain 
 
         19   within the group until decisions are made, at least. 
 
         20   BY MR. NILLES: 
 
         21          Q.     Ms. Hodge, in summarizing each of the 
 
         22   states, turning to Wisconsin, which is the last page 
 
         23   of your report, basically, the same question I had 
 
         24   for Mr. Don Sutton, which is, your reference to the 
 
 
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          1   new streamlining required by law, the notice with 
 
          2   contact 118, are you aware that the USEPA has raised 
 
          3   serious concerns with contact 118? 
 
          4          A.     I am not aware. 
 
          5          Q.     You are aware that USEPA must approve 
 
          6   the Illinois EPA before the Board adopts the 
 
          7   regulations; is that correct? 
 
          8          A.     Yes, that's my understanding. 
 
          9            MS. DRIVER:  What kind of regulations 
 
         10   are you referring to in that question? 
 
         11            MR. NILLES:  Changes to the state 
 
         12   implementation plan. 
 
         13            MR. SUTTON:  If I could add, what's 
 
         14   already here on Wisconsin is already in place in 
 
         15   their state.  These aren't proposed, these are 
 
         16   already existing. 
 
         17            MR. NILLES:  I'm referring to number 
 
         18   three. 
 
         19            MR. SUTTON:  Oh, okay. 
 
         20            MS. HODGE:  As far as the items in 
 
         21   Roman Numeral 2 are a list of -- 
 
         22            MR. SUTTON:  And the number two 
 
         23   numbers are higher than the numbers we're talking 
 
         24   about. 
 
 
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          1    
 
          2   BY MR. NILLES 
 
          3          Q.     Ms. Hodge, has the Illinois 
 
          4   Environmental Regulatory Group ever done an analysis 
 
          5   as to the resources the Agency needs to be able to 
 
          6   issue permits in a timely manner? 
 
          7            MS. DRIVER:  I was just going to note, 
 
          8   before that question is answered, an objection to 
 
          9   what knowledge we would have without the Agency's 
 
         10   internal operations.  I'm not sure that we're the 
 
         11   best person to speak to that, but with that 
 
         12   objection noted, if you want to respond the best 
 
         13   you can. 
 
         14            MS. HODGE:  I'll try, I'll try. 
 
         15            HEARING OFFICER ANTONIOLLI:  Sure. 
 
         16   With that caveat noted, then you can go ahead and 
 
         17   answer the best you can. 
 
         18            MS. HODGE:  Thank you. 
 
         19   BY MS. HODGE: 
 
         20          A.     I am aware that during the early days 
 
         21   of the Title V program in Illinois, you know, with 
 
         22   the implementation of the Title V permit 
 
         23   requirements in the State of Illinois, that there 
 
         24   was some ongoing dialogue between Illinois EPA and 
 
 
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          1   the Illinois Environmental Regulatory Group about 
 
          2   resources that would be needed to fund the program. 
 
          3                I personally was not intimately 
 
          4   involved in that project, but I am aware that, you 
 
          5   know -- or did significant work. 
 
          6   BY MR. NILLES: 
 
          7          Q.     You state in your testimony that there 
 
          8   can be permitting delays because the Agency doesn't 
 
          9   issue operating permits in a timely manner? 
 
         10            MS. DRIVER:  Can you show us where 
 
         11   you're talking about? 
 
         12            MR. NILLES:  I'm sorry.  That was 
 
         13   Don Sutton's testimony.  Scratch that. 
 
         14   BY MR. NILLES: 
 
         15          Q.     Let me ask this question.  Let me ask 
 
         16   it slightly differently. 
 
         17                If a facility wants to change its 
 
         18   operating permits and it submitted an application to 
 
         19   the Agency, can the source proceed to operate absent 
 
         20   the State acting on the operating permit change? 
 
         21          A.     It depends upon what the change 
 
         22   request would be. 
 
         23            MS. DRIVER:  Are you talking about 
 
         24   currently or under the exemption that we've 
 
 
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          1   proposed? 
 
          2            MR. NILLES:  I'm talking currently. 
 
          3            MR. DRIVER:  And which type of operating 
 
          4   permit are you talking about? 
 
          5            MR. NILLES:  Title V permits. 
 
          6   BY MR. NILLES: 
 
          7          Q.     You submitted an application to the 
 
          8   Agency for a Title V exemption, you can continue to 
 
          9   operate, is that correct, under the permit -- 
 
         10            MS. DRIVER:  Is the permit issued? 
 
         11            MR. NILLES:  No. 
 
         12            MS. DRIVER:  The permit has not been 
 
         13   issued? 
 
         14            MR. NILLES:  Correct. 
 
         15            MS. DRIVER:  And you're asking if a 
 
         16   facility can operate without the Title V permit 
 
         17   being issued? 
 
         18            MR. NILLES:  Correct.  I was asking 
 
         19   Ms. Hodge. 
 
         20   BY MR. NILLES: 
 
         21          Q.     Can a major source of pollution that 
 
         22   applied for a Title V permit continue to operate 
 
         23   absent the State acting on the Title V permit? 
 
         24          A.     That's a different question. 
 
 
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          1                     Yes, my understanding is that that 
 
          2   is correct, that under the transition requirements 
 
          3   for Title V, if someone makes a timely application, 
 
          4   timely and complete application for a Title V 
 
          5   permit, they can continue to operate under the 
 
          6   existing State operating permits. 
 
          7          Q.     Are you aware of any source that has 
 
          8   been unable to make a change because of a delay in 
 
          9   the Agency acting on any type of operating permit? 
 
         10          A.     I'm not personally aware. 
 
         11          Q.     In your testimony on Page 4, you state 
 
         12   that one of the benefits of this reallocation of 
 
         13   Illinois EPA resource is especially crucial during 
 
         14   this current period of state and budget constraints; 
 
         15   is that correct? 
 
         16          A.     That's correct. 
 
         17          Q.     Is there any general purpose revenue 
 
         18   assigned to the air program? 
 
         19          A.     My understanding is there is not. 
 
         20          Q.     So how does the budget constraints 
 
         21   affect permit issuance rates? 
 
         22          A.     Because I believe that Mr. Sutton 
 
         23   testified to, early on, his staff has reduced levels 
 
         24   of staff right now notwithstanding the fact that the 
 
 
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          1   permit fees have increased, fewer dollars are going 
 
          2   to run the program. 
 
          3          Q.     So the problem is a lack of target 
 
          4   resources so they have enough to be able to process 
 
          5   a permit? 
 
          6          A.     I'm not sure I agree with that. 
 
          7            MR. NILLES:  Thank you.  No further 
 
          8   questions. 
 
          9            MS. DRIVER:  Can I have just a moment? 
 
         10                     (Brief pause.) 
 
         11            MS. DRIVER:  Could we have Mr. Jirik 
 
         12   sworn just to follow up on a question, I think it 
 
          13   will clarify, that's been asked of Ms. Hodge? 
 
         14            HEARING OFFICER ANTONIOLLI:  Sure, of 
 
         15   course. 
 
         16                     (Witness sworn.) 
 
         17   BY MS. DRIVER: 
 
         18          Q.     Mr. Jirik, a question had just been 
 
         19   posed of Ms. Hodge about whether a source could make 
 
         20   a -- has been prevented from making changes and 
 
         21   without getting a modification to their operating 
 
         22   permit.  I'm not sure the intent of the question 
 
         23   necessarily was understood with respect to the 
 
         24   answers that were given. 
 
 
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          1                In your capacity as working at a 
 
          2   facility that could be impacted by these permit 
 
          3   exemptions, could you talk a little bit the 
 
          4   carryover of the insignificant activity on the 
 
          5   operating side to the requirement to have a 
 
          6   construction permit before a change can be made? 
 
          7          A.     Specific to the insignificant 
 
          8   activities relative to operating permits, today 
 
          9   there is a requirement, and we've had testimony in 
 
         10   that regard, that one still receive a construction 
 
         11   permit for things that had been acknowledged and not 
 
         12   regulated insignificant activities.  So while the 
 
         13   question and the answer was accurate relative to the 
 
         14   operating permit, it is necessary and advised and 
 
         15   mandatory to wait and incur a delay until the 
 
         16   nominal construction permit issued for a matter that 
 
         17   with the State of Illinois has recognized and 
 
         18   apparently are still having states involved to 
 
         19   recognize as minor insignificant activities. 
 
         20                So a delay is indeed incurred at the 
 
         21   point of construction permitting, which is the 
 
         22   subject addressed relative to the insignificant 
 
         23   activities. 
 
         24            MS. SHARKEY:  Could I ask a follow-up 
 
 
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          1   question? 
 
          2            HEARING OFFICER ANTONIOLLI:  Sure. 
 
          3            MS. SHARKEY:  Pat Sharkey asking 
 
          4   Alan Jirik. 
 
          5   BY MS. SHARKEY: 
 
          6          Q.     If it's not a Title V source, you also 
 
          7   need to -- isn't it true that you also experience a 
 
          8   delay waiting for the operating permit as well? 
 
          9          A.     If you're a Title V -- 
 
         10          Q.     If you are a FESOP source, for 
 
         11   example, you need a construction permit? 
 
         12          A.     You are required to get a construction 
 
         13   permit.  Once that is complete, then the answer is 
 
         14   accurate relative to operating, but there is a 
 
         15   delay, and that point needs to be emphasized, at the 
 
         16   construction permit level.  And then for the 
 
         17   non-Title V's, you also have the operating permits. 
 
         18          Q.     Thank you. 
 
         19                     And that would be true for a minor 
 
         20   source lifetime source as well? 
 
         21            MR. NILLES:  Objection as to personal 
 
         22   knowledge of this.  If you're a major source, right? 
 
         23            MR. JIRIK:  I'm a major source, so I 
 
         24   can't speak to -- I mean, I understand the 
 
 
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          1   regulations, but I'm -- 
 
          2   BY MS. SHARKEY: 
 
          3          Q.     Could I direct that question then 
 
          4   toward Mr. Sutton? 
 
          5          A.     I would like to answer it and actually 
 
          6   even take it a step farther. 
 
          7                     When you determine whether you're 
 
          8   a major source for Title V, it doesn't matter 
 
          9   whether your emission units are permitted or not. 
 
         10   You look at your potential emissions of all emission 
 
         11   units at your source to determine if you trigger the 
 
         12   Title V threshold.  So that end, it doesn't matter 
 
         13   whether I issue a permit or not or exempt it or not, 
 
         14   you still look at all the emissions, add up all the 
 
         15   numbers, and if it's -- for example, if the nitrous 
 
         16   oxides are greater than 100 tons a year, you need a 
 
         17   Title V permit. 
 
         18                To that extent, sources then come back 
 
         19   and say, well, that's my potential.  In reality, my 
 
         20   actual emissions are much lower than that, can I 
 
         21   take limits to limit and become a FESOP?  Again, 
 
         22   they can, and we issue a federally enforceable state 
 
         23   operating permit limiting those things that they 
 
         24   elect to take voluntary limits on to keep them from 
 
 
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          1   becoming major, but we still identify all emission 
 
          2   units at that source to make sure they're not major 
 
          3   sources.  They still have to come in and get 
 
          4   construction permits, as Pat says, for adding small 
 
          5   units, and then we have to amend their FESOP to 
 
          6   address the operations under that CAAPP. 
 
          7                Even after this exemption ends out, 
 
          8   when we come up for renewal and the source has to 
 
          9   report, you know, they keep their units, they cannot 
 
         10   add enough incident units that would change their 
 
         11   major source threshold.  So as Bob renews their 
 
         12   FESOP, he continues what is limited and he -- we 
 
         13   have what's called an Attached A, where we limit all 
 
         14   the other nonpermitted units and what their 
 
         15   emissions are.  So you can take the nonpermitted 
 
         16   emissions plus the permit emissions and make sure 
 
         17   they're less than major.  Long answer to your 
 
         18   question, Pat, did I get it? 
 
         19          Q.     Yes. 
 
         20                And, Mr. Sutton, one more, would that 
 
         21   be true for a minor source as well as lifetime 
 
         22   source, that if they indeed had -- I believe the 
 
         23   question is whether there is somehow a permit 
 
         24   shield, the application shield would result in 
 
 
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          1   there not being a problem or a delay for a source in 
 
          2   making a change at its unit by the addition of one 
 
          3   of these various de minimis emission sources.  And I 
 
          4   think the initial answer was based on the concept of 
 
          5   a summit shield for a Title V application, you have 
 
          6   now answered for a FESOP application, and I'm going 
 
          7   down to the lifetime permitting level, that 
 
          8   multitude of emissions sources that are permitted 
 
          9   out there, will those people, those very small 
 
         10   emission sources end with a delay, will they be 
 
         11   required to get both a construction permit and also 
 
         12   then get an operating permit? 
 
         13          A.     They do have the requirement for a 
 
         14   construction permit and operating permit.  If, in 
 
         15   fact, they are very small units, oftentimes, Bob 
 
         16   will issue what's called a joint construction 
 
         17   operating permit, and so that would somewhat limit 
 
         18   that, so we have that capability.  And as you point 
 
         19   out, they still would count account all their 
 
         20   emissions toward the Title V applicability. 
 
         21                     In theory -- and I don't know if 
 
         22   we have one in the State of Illinois, but you can, 
 
         23   in fact, have a source who sold all the emission 
 
         24   units they have are less than significant, they're 
 
 
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          1   all insignificant activities, but yet, when added up 
 
          2   in aggregate, they are major sources, so they end up 
 
          3   with a Title V permit, which basically is hollow 
 
          4   saying you are an insignificant activity source. 
 
          5   You don't report anything, you pay the minimum fee, 
 
          6   but we recognize that because of all these 
 
          7   emissions, you are still high enough to trigger the 
 
          8   major source threshold.  I don't recall if we 
 
          9   actually have one of those in our state. 
 
         10            HEARING OFFICER ANTONIOLLI:  Thank 
 
         11   you. 
 
         12            MR. NILLES:  One quick follow-up 
 
         13   question. 
 
         14   BY MR. NILLES: 
 
         15          Q.     What is the total amount of air 
 
         16   pollution that could increase under these exemptions 
 
         17   for these sources, what's the worst care scenario? 
 
         18          A.     Well, Bruce, again, in the 
 
         19   hypothetical, it's unlimited. 
 
         20          Q.     The amount of air pollution? 
 
         21          A.     Right, in the hypothetical. 
 
         22                Because like I said, you could end up 
 
         23   adding up enough of these that you end up being a 
 
         24   Title V source.  In the reality of the situation, I 
 
 
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          1   don't think that would ever occur, but that can 
 
          2   happen. 
 
          3                One thing you -- well, we could back it 
 
          4   up and say, first of all, you can't trigger an MSDS, 
 
          5   NESHAP, you can't trigger PSD or new source review, 
 
          6   so -- and you can't change status between FESOP, 
 
          7   Title V or major source, so I guess -- let me back 
 
          8   it up and say, okay, the more conservative the 
 
          9   estimate is you can't probably take a smaller source 
 
         10   with which we got 5,600 of those and add some level 
 
         11   of pollutant which would trigger some of those 
 
         12   things. 
 
         13                The minimum, let's say 5,000 sources 
 
         14   times ten tons of any one half would put them in the 
 
         15   next threshold, so that would be one cut.  So 
 
         16   that's, what, 5,000 times 10, 50,000 tons, if you 
 
         17   will. 
 
         18                So I don't know what the actual 
 
         19   emissions would be, and these are very small 
 
         20   sources, historically, haven't changed over time, 
 
         21   haven't seen a lot of activity.  We don't envision 
 
         22   much emissions, but I can't give you a bottom line 
 
         23   saying they can't exceed a certain number. 
 
         24          Q.     Let me break it down. 
 
 
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          1                     There's 5620 small lifetime 
 
          2   sources? 
 
          3          A.     Right. 
 
          4          Q.     These exemptions, would it allow them 
 
          5   to make changes and increase pollution up to 
 
          6   two tons per modification. 
 
          7          A.     Right. 
 
          8            HEARING OFFICER ANTONIOLLI:  Would you like 
 
          9   to comment on that question? 
 
         10   BY MS. SHARKEY: 
 
         11          Q.     I want to make sure that the responder 
 
         12   is answering the question that's asked, would allow 
 
         13   increased emissions or would allow the emissions to 
 
         14   go without a permit, not be requesting a permit, to 
 
         15   make sure that Mr. Sutton understands the difference 
 
         16   in the question? 
 
         17          A.     I think that -- go ahead -- 
 
         18            HEARING OFFICER ANTONIOLLI:  Is that 
 
         19   your question, Mr. Nilles? 
 
         20   BY MR. NILLES: 
 
         21          Q.     My question is, these 5,620 sources 
 
         22   are going to be exempt from certain activities if 
 
         23   the Board approves what is being proposed today? 
 
         24          A.     Right. 
 
 
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          1          Q.     And a part of that exemption is -- 
 
          2   exempting from permit, are activities that increase 
 
          3   air pollution at each of these sources by up to 
 
          4   two tons of pollution per modification. 
 
          5          A.     Per unit. 
 
          6          Q.     What is the safer unit? 
 
          7          A.     Well, basically, it's .5 pounds per 
 
          8   hour, per unit. 
 
          9          Q.     But there are multiple units? 
 
         10          A.     Right. 
 
         11          Q.     So each source could increase more 
 
         12   than two tons? 
 
         13          A.     Oh, yes, if they had more units. 
 
         14                     What I was getting at is your 2.2 
 
         15   tons a year is for that particular unit, if you 
 
         16   times it 8,760 hours in a year.  I was just getting 
 
         17   ahead of you math wise. 
 
         18          Q.     Not difficult. 
 
         19                        (Laughter.) 
 
         20   BY MR. NILLES: 
 
         21          Q.     So we have 5,620 minor sources, each 
 
         22   unit can increase 2.2 tons per year and be exempt 
 
         23   from permitting, and each of these 5,620 sources can 
 
         24   have multiple units, and the 2.2 tons includes 
 
 
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          1   hazardous air pollutants, am I correct? 
 
          2          A.     So far. 
 
          3          Q.     And there's no public role in any of 
 
          4   this exemption process; is that correct? 
 
          5          A.     Nor similarly, as I think Pat pointed 
 
          6   out earlier, that those units came in and asked for 
 
           7   a permit -- no, no room.  There would be no public 
 
          8   notice requirement, which is, I think, what Bruce 
 
          9   was heading for, and I was just going to add 
 
         10   similarly today, if they came and got a permit for 
 
         11   the same unit, there would be no public notice for 
 
         12   that. 
 
         13            HEARING OFFICER ANTONIOLLI:  Do you 
 
         14   have a question? 
 
         15            MS. SHARKEY:  I'd just like to follow 
 
         16   up to make sure that I'm clear on what Mr. Sutton is 
 
         17   saying and that the Board is clear on what 
 
         18   Mr. Sutton is saying. 
 
         19            HEARING OFFICER ANTONIOLLI:  Do you 
 
         20   need to be sworn in? 
 
         21            MS. SHARKEY:  No, I would like to 
 
         22   ask questions. 
 
         23            HEARING OFFICER ANTONIOLLI:  Okay. 
 
         24   BY MS. SHARKEY: 
 
 
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          1          Q.     Mr. Sutton, the question was asked as 
 
          2   to whether or not -- I believe the question was 
 
          3   asked as to whether or not there would be the total 
 
          4   amount of air pollution increase by virtue of this 
 
          5   regulation, is this by virtue of exempting from 
 
          6   permitting, is there actually any increase in 
 
          7   emissions from an emission source? 
 
          8          A.     There's -- if all the sources we have 
 
          9   permitted today stayed the same, there's no 
 
         10   increase.  The emissions are what they are.  What 
 
         11   this would allow would be additional units to come 
 
         12   in to existing permitted sources so they could add 
 
         13   an additional unit at less than .1 pounds per hour 
 
         14   or up to .5 pounds per hour as long as they notify 
 
         15   us what that is, without the requirement for a 
 
         16   construction permit or modification of their 
 
         17   operating permit. 
 
         18          Q.     So if they came in for a permit, they 
 
         19   would have the increased emission, and if they did 
 
         20   not -- if they were exempt, they would have the 
 
         21   increase in emissions, so isn't it true that there 
 
         22   is absolutely no difference in emissions as to 
 
         23   whether it's permitted or exempted? 
 
         24          A.     I'm not going to be so bold as to say 
 
 
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                                                                      106 
 
 
 
          1   that the fact that somebody has to get a permit from 
 
          2   me is slowing up their business growth, so I agree 
 
          3   with your assessment that the emissions would be the 
 
          4   same whether they're permitted or not, and the 
 
          5   activity would occur whether they're permitted or 
 
          6   not, the difference being is that they don't have to 
 
          7   pay me a fee for that construction permit and I 
 
          8   don't have to process it. 
 
          9          Q.     And you had testified earlier, I 
 
         10   believe, that, in fact, all of those emissions from 
 
         11   the exempt emission sources must be included in any 
 
         12   potential to emit analysis that that source is 
 
         13   subject to, is keeping and is subject to determine 
 
         14   whether or not it triggers any other regulatory 
 
         15   requirements? 
 
         16          A.     That's correct. 
 
         17          Q.     So the emissions involved in those 
 
         18   exempt sources are going to be reflected whether 
 
         19   permitted or not, would be required to be reflected 
 
         20   under law? 
 
         21          A.     They have to take in consideration all 
 
         22   emissions of all units to determine the regulatory 
 
         23   status. 
 
         24            MS. SHARKEY:  Thank you. 
 
 
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          1   BY MR. NILLES: 
 
          2          Q.     Mr. Sutton, you have no record of what 
 
          3   changes they made, if these exemptions go through; 
 
          4   is that correct? 
 
          5          A.     Correct.  We'd have no record if it's 
 
          6   less than .1 pound per hour, we'd have notification 
 
          7   if it's greater than that and less than .5 pounds 
 
          8   per hour.  So we would have records indicating that 
 
          9   one that -- that one between the greater than .1, 
 
         10   less than .5, actually had occurred, and that would 
 
         11   go into our file. 
 
         12   BY MS. DRIVER: 
 
         13          Q.     Isn't it true then, Mr. Sutton, you 
 
         14   would have notification on the Title V sources 
 
         15   because they have to follow that process under their 
 
         16   Title V permit for insignificant activities? 
 
         17          A.     The problem is, obviously, we have 
 
         18   three major types of permits, we have Title V 
 
         19   permits, which are larger sources, they have their 
 
         20   own sets of rules, they have the insignificant 
 
         21   activity rules, and they do have to tell us what 
 
         22   they are initially in that renewal so we have that 
 
         23   information.  If they add new ones that weren't 
 
         24   previously covered by the Title V permit, they have 
 
 
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                                                                      108 
 
 
 
          1   to tell us about that, so they'd have to let us know 
 
          2   what's going on. 
 
          3                     The FESOP, which are the next 
 
          4   ones, they're probably, if you will, some of our 
 
          5   more critical ones, because they have -- they're 
 
          6   trying not to become, if you will, Title V sources. 
 
          7   So one, we have a very small de minimis increase for 
 
          8   them, and two, they have to let us know, and as Pat 
 
          9   pointed out, they cannot change their regulatory 
 
         10   status by adding insignificant activities. 
 
         11                So to that extent, we keep track of 
 
         12   that particular group because it's of concern, then 
 
         13   we have, I think, where Bruce was heading, is our 
 
         14   smallest ones, which we have annual emission reports 
 
         15   from what is permitted at those sources.  So if they 
 
         16   don't have a requirement to report emissions from 
 
         17   nonpermitted units, if you will, but they do have an 
 
         18   obligation to remain where they're at, if we show up 
 
         19   as sometimes we have been known to do and find out 
 
         20   that they have enough emissions that they're 
 
         21   miscategorized, then we take action against them. 
 
         22                     So if you think you're a minor 
 
         23   source and we think you're a Title V source, that's 
 
         24   a big problem, and it will cost you a lot of 
 
 
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                                                                      109 
 
 
 
          1   dollars. 
 
          2            MR. MATOESIAN:  Can I just -- 
 
          3   BY MR. MATOESIAN: 
 
          4          Q.     And, Mr. Sutton, and the risk, again, 
 
          5   is always on the source -- 
 
          6          A.     On the source. 
 
          7          Q.     -- to make sure that their calculation 
 
          8   and their assertions are correct? 
 
          9          A.     Right. 
 
         10   BY MR. NILLES: 
 
         11          Q.     When you get a permit right now for 
 
         12   the minor sources, construction permits, is part of 
 
         13   the analysis before you issue a permit to make sure 
 
         14   that they don't trigger any of the programs you 
 
         15   considered to make sure that their emissions are 
 
         16   under MSDS, PSD, major source definition, is that 
 
         17   part of the analysis, do you know? 
 
         18          A.     Yes. 
 
         19          Q.     That analysis won't happen for those 
 
         20   sources that are now going to be exempt and emit 
 
         21   less than .1 pound per hour; is that correct? 
 
         22          A.     To the extent that somebody does not 
 
         23   submit an application and I'm not able to then 
 
         24   review, as Chuck pointed out, the burden, if you 
 
 
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          1   will, and the risk, if you will, is on the 
 
          2   applicant, because it does not shield them from 
 
          3   future prosecution if, in fact, they mischaracterize 
 
          4   their source. 
 
          5          Q.     Has the Agency given any thought as to 
 
          6   what the notification would be for those sources 
 
          7   that are between .1 and .5 pounds per hour? 
 
          8          A.     Our presumption is, one, it would be 
 
          9   by letter.  These are existing sources, so we have a 
 
         10   way of tracking them, and there is just a prior -- 
 
         11   we assume there would be no waiting period, it's 
 
         12   basically we plan to install a unit of a certain 
 
         13   size, obviously, less than .5 pounds per hour and 
 
         14   presumably greater than .1 pound per hour, they 
 
         15   shouldn't have to write the letter, they're just 
 
         16   sending it to us.  So it's our intent to add this 
 
         17   particular emission unit. 
 
         18          Q.     Would you consider some kind of 
 
         19   certification requiring them to certify that it's 
 
         20   below any other applicable thresholds, put the onus 
 
         21   squarely on the applicant? 
 
         22          A.     On the smaller sources, yes, and also, 
 
         23   we, if need be, develop a forum to basically tell 
 
         24   them it's not covered by MSDS, which is most likely 
 
 
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          1   what it's going to trigger.  But, again, these are 
 
          2   most of the MSDS is units larger than this. 
 
          3                We know what their actual emissions 
 
          4   are.  They've been reported to us.  We actually -- 
 
          5   we have some assemblance of what their potentials 
 
          6   are.  The level of scrutiny, I think, would -- and I 
 
          7   don't want to speak on Bob's behalf, but, obviously, 
 
          8   would be based on how historically large they have 
 
          9   been. 
 
         10                If, like most of these sources, their 
 
         11   combined emissions in total is less than 25 tons a 
 
         12   year actual emissions, the bulk of them pay us the 
 
         13   minimum fee, and that cutoff is based only all your 
 
         14   emissions in aggregate being less than 25 tons.  So 
 
         15   those people pay us $200 a year as an operating fee, 
 
         16   and, of those, 5,620 sources, the bulk of them pay 
 
         17   us $200.  And, Chuck, please make note, we will 
 
         18   provide that number to you at the of the next 
 
         19   hearing, so I would suggest approximately close to 
 
         20   5,000 of those pay us $200.  So their actual 
 
         21   emission in aggregate are less 25 tons.  Keeping in 
 
         22   mind, other than the hazardous air pollutant 
 
         23   trigger, after June 15th, the lowest level will be 
 
         24   100 tons for major source for Title V, and so 
 
 
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                                                                      112 
 
 
 
          1   they'll be a long way away from that major source 
 
          2   threshold. 
 
          3                     So I don't envision us spending a 
 
          4   tremendous amount of time trying to make sure that 
 
          5   somebody whose actual emissions are 20 tons in 
 
          6   aggregate is less than 100 tons of any one 
 
          7   pollutant. 
 
          8          A.     The one thing they will obviously keep 
 
          9   somewhat concerned on is hazardous air pollutants, 
 
         10   but, again, they report their hazardous air 
 
         11   pollutants to us currently, and most of these are 
 
         12   very, very small hazardous air pollutant sources. 
 
         13                     What you see predominantly is 
 
         14   something that's in relationship to indirect/direct 
 
         15   heating-type operations or some small 
 
         16   coating/finishing-type operations.  So these, like I 
 
         17   said, are small units.  But we will provide the 
 
         18   number of people who pay us the $200 a year 
 
         19   operating fee. 
 
         20   BY HEARING OFFICER ANTONIOLLI: 
 
         21          Q.     But back to the notice requirement, it 
 
         22   states in the rule language that the unit can be 
 
         23   then constructed, installed or modified immediately 
 
         24   after the notification is filed, so there's no lag 
 
 
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                                                                      113 
 
 
 
          1   time there, and the applicant doesn't have to wait 
 
          2   for the Agency to get back to it? 
 
          3          A.     That's correct.  We deliberately just 
 
          4   wanted a notification, we didn't want them to assume 
 
          5   when they get back to us -- again, they're 
 
          6   proceeding at their own risk, but we didn't want to 
 
          7   put any particular burden on us to come back within 
 
          8   two days, seven days, whatever.  So if they're 
 
          9   confident, they send us a letter and they go on.  If 
 
         10   they're not confident, then as they would do today, 
 
         11   some sources would send us a letter saying we're 
 
         12   anticipating doing this, does it meet the exemption, 
 
         13   and then we would respond to that, so we do provide 
 
         14   that. 
 
         15   BY MR. NILLES: 
 
         16          Q.     Does the Agency consider requiring 
 
         17   notification from all of these changes so they had a 
 
         18   record for its inspectors? 
 
         19          A.     We picked this particular group 
 
         20   because, again, .5 pounds per hour is not a huge 
 
         21   emission source, but it is somewhat.  At .1 pound 
 
         22   per hour or less that -- roughly 800 pounds a year, 
 
         23   we would not want to keep track or handle that 
 
         24   amount of paperwork?  I don't think it's necessary 
 
 
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                                                                      114 
 
 
 
          1   or adds to the overall goals. 
 
          2          Q.     This include hazardous air pollutants, 
 
          3   though, right? 
 
          4          A.     Only at the smaller sources.  Keep in 
 
          5   mind the FESOP ones, it's -- again, it's less than 
 
          6   .1 percent of that .1 pound per hour, so I have no 
 
          7   concern for the FESOP sources.  For the smaller guy, 
 
          8   again, that's 800 pounds a year of hazardous air 
 
          9   pollutants, it's .1 pound per hour, even at that 
 
         10   level, that's not a tremendous amount. 
 
         11          Q.     800 pounds of hazardous air pollutant 
 
         12   is not large enough? 
 
         13          A.     No, if you keep in mind USEPA's 
 
         14   concern level is ten tons per year.  That is where 
 
         15   they draw the line in the sand. 
 
         16            HEARING OFFICER ANTONIOLLI:  Do I see 
 
         17   a question in the back? 
 
         18            MS. SHARKEY:  Yeah, if I could just follow 
 
         19   up on that? 
 
         20   BY MS. SHARKEY: 
 
         21          Q.     Mr. Sutton, if indeed that emission 
 
         22   source, de minimis emission source unit were subject 
 
         23   to a permit and it were not subject to a NESHAP or 
 
         24   any other federal requirement, were not at a major 
 
 
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                                                                      115 
 
 
 
          1   source for hazardous air pollutant, is there any 
 
          2   emission limitation or other controls designed to be 
 
          3   used, HAPs that would be included in the permit, if 
 
          4   indeed this de minimis emission unit were subject to 
 
          5   permitting? 
 
          6          A.     No. 
 
          7          Q.     So there would be no difference in 
 
          8   HAPs whether it was permitted or not; is that 
 
          9   correct? 
 
         10          A.     Correct. 
 
         11            MS. SHARKEY:  Thank you. 
 
         12   BY MR. MATOESIAN: 
 
         13          Q.     When you said that 880 pounds of HAPs 
 
         14   were not of concern, you're speaking strictly for 
 
         15   permitting purposes, correct? 
 
         16          A.     Right, and regulatory purposes.  There 
 
         17   is no regulation -- keep in mind all the federal 
 
         18   requirements still exist, and all we're talking 
 
         19   about here is the need for permit even though 
 
         20   there's no underlying control that goes with that 
 
         21   permit. 
 
         22            HEARING OFFICER ANTONIOLLI:  I have a 
 
         23   couple questions about the language, too, then. 
 
         24   BY HEARING OFFICER ANTONIOLLI: 
 
 
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                                                                      116 
 
 
 
          1          Q.     Looking at the proposed language on 
 
          2   the first line after the title, exemptions for State 
 
          3   permit requirement, it states, construction or 
 
          4   operating permits pursuant to Sections 201.142, 
 
          5   201.143, and then should that be 201.144? 
 
          6          A.     I think you're right. 
 
          7          Q.     And then I had one more. 
 
          8                Then at Subsection (hhh) 5, will the 
 
          9   proposed amendments require new air pollution 
 
         10   control equipment to be equipped with monitoring 
 
         11   devices only if existing pollution control equipment 
 
         12   is also required by the Board rules to have such 
 
         13   devices? 
 
         14                     So I think what -- the language 
 
         15   says, where the existing air pollution control 
 
         16   equipment had required monitoring equipment, should 
 
         17   that be has instead of had required, so where the 
 
         18   existing air pollution control equipment has 
 
         19   monitoring equipment?  I know this is pretty 
 
         20   technical stuff here, but we have to make sure 
 
         21   that -- 
 
         22            MS. HODGE:  I think that's okay. 
 
         23            MR. SUTTON:  It sounds good so far. 
 
         24   BY HEARING OFFICER ANTONIOLLI: 
 
 
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                                                                      117 
 
 
 
          1          Q.     And then continuing on the new air 
 
          2   pollution control equipment, will be equipped with 
 
          3   instrumentation and monitoring devices that are 
 
          4   typically installed on the new equipment of such 
 
          5   type? 
 
          6   BY MR. SUTTON: 
 
          7          A.     Yes. 
 
          8   BY BOARD MEMBER LIU: 
 
          9          Q.     And the follow-up to that is, if the 
 
         10   existing air pollution control equipment didn't have 
 
         11   air monitoring equipment associated with it, the new 
 
         12   equipment wouldn't need it either? 
 
         13          A.     If they elected to add a device that 
 
         14   has an underlying requirement for control, so it's 
 
         15   different than the previous, then they would have to 
 
         16   have that monitoring on there.  On the inverse, I'd 
 
         17   probably answer your question, but if the new device 
 
         18   had no control and no one had the control, you're 
 
         19   right, I agree. 
 
         20   BY MR. NILLES: 
 
         21          Q.     Sticking to that provision, can you 
 
         22   define typically?  I'm not familiar with the term 
 
         23   typically being used in regulations. 
 
         24            HEARING OFFICER ANTONIOLLI:  Now, if you 
 
 
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                                                                      118 
 
 
 
          1   wanted to note that -- I don't know if the Agency or 
 
          2   IERG is prepared to answer that now, but that's 
 
          3   something that may be able to be flushed out at the 
 
          4   next hearing. 
 
          5            MS. HODGE:  We'll address that. 
 
          6            HEARING OFFICER ANTONIOLLI:  And do 
 
          7   we have any further questions? 
 
          8                Yes, Ms. Sharkey? 
 
          9                 MS. SHARKEY:  I would like to clarify 
 
         10   one more point. 
 
         11   BY MS. SHARKEY: 
 
         12          Q.     There were questions regarding 
 
         13   identification of these emission sources and some 
 
         14   concern that those units that are subject to this 
 
         15   exemption may not -- that we're relying on the 
 
         16   source to identify those units, I wanted to ask 
 
         17   Mr. Sutton, isn't it true that the Agency relies on 
 
         18   the source to identify emission units in all of its 
 
         19   permitting activities apart from inspecting the 
 
         20   facility, of course? 
 
         21          A.     It is true that the application -- we 
 
         22   rely on information by applicant in the application 
 
         23   to process that permit.  Very seldom we go and do an 
 
         24   independent evaluation on-site as to -- so if 
 
 
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                                                                      119 
 
 
 
          1   somebody says they're going to build something, we 
 
          2   have to take on them on their word. 
 
          3          Q.     So the burden is on the applicant to 
 
          4   identify what those emission units are? 
 
          5          A.     Always. 
 
          6          Q.     And applicants certify their 
 
          7   applications, do they not? 
 
          8          A.     Yes. 
 
          9          Q.     And in terms of the current 
 
         10   categorical exemptions that exist in 
 
         11   Section 201.146, those parties who are believed that 
 
         12   are subject to categorical exemptions identify those 
 
         13   units themselves, do they not?  The burden continues 
 
         14   to be on that applicant to determine that that falls 
 
         15   under that exemption? 
 
         16          A.     Correct. 
 
         17          Q.     And so, in this case, what we're 
 
          18   talking about is parties -- is simply that the same 
 
         19   burden that is currently on sources that are 
 
         20   utilizing an exemption would be on these sources, 
 
         21   just as it is for the categorical exemption; is that 
 
         22   correct? 
 
         23          A.     Correct. 
 
         24            MS. SHARKEY:  No more questions, 
 
 
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                                                                      120 
 
 
 
          1   thank you. 
 
          2            HEARING OFFICER ANTONIOLLI:  Thank 
 
          3   you.  Any further questions? 
 
          4            MR. NILLES:  Just a quick follow-up. 
 
          5   BY MR. NILLES: 
 
          6          Q.     You mentioned that an applicant has to 
 
          7   certify the number of emission units, correct?  Let 
 
          8   me back up. 
 
          9                A critical piece of the enforcement 
 
         10   program that the State has in place right now is 
 
         11   that there's a record and an application that the 
 
         12   Agency has to certify under the threat of perjury; 
 
         13   is that correct? 
 
          14          A.     Yes. 
 
         15          Q.     Does the Agency prosecute companies 
 
         16   for false statements?  Does the Agency have the 
 
         17   authority to prosecute people for false statements? 
 
         18          A.     I presume. 
 
         19          Q.     Can we add the definition of -- let me 
 
         20   turn specifically to that. 
 
         21                     3-5 of the proposal lists the type 
 
         22   of activities for purposes of compliance, and it 
 
         23   limits it to relating to air emissions of the 
 
         24   source? 
 
 
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          1            MS. DRIVER:  Where are you? 
 
          2            MR. NILLES:  I'm sorry, (iii) 5. 
 
          3   BY MR. NILLES: 
 
          4          Q.     Does the Agency consider someone who 
 
          5   falsifies their application to be in violation 
 
          6   relating to air emissions of the source?  Let me say 
 
          7   this another way. 
 
          8                Is it the Agency's intent to say, 
 
          9   you're in compliance with all your applicable 
 
         10   requirements but maybe get prosecuted for false 
 
         11   statements and would be allowed to apply for the 
 
         12   exemption? 
 
         13          A.     I don't understand the question. 
 
         14          Q.     Let me try it a slightly different 
 
         15   way. 
 
         16            HEARING OFFICER ANTONIOLLI:  Are you 
 
         17   asking whether that's necessary to include in the 
 
         18   language? 
 
         19            MR. NILLES:  That's right, thank you. 
 
         20   BY MR. SUTTON: 
 
         21          A.     I don't think it's necessary.  I mean, 
 
         22   we don't -- I think it's understood if you lie to 
 
         23   us, that's a violation, but I don't know if we have 
 
         24   to state in here that you can't lie on your 
 
 
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          1   application.  That seems a little redundant. 
 
          2   BY MR. NILLES: 
 
          3          Q.     Does it relate to the air emissions of 
 
          4   the source? 
 
          5          A.     Well, again, I think it doesn't follow 
 
          6   logically that you have to point out to people they 
 
          7   have to not lie to us and still qualify for 
 
          8   something.  I think the presumption is that they 
 
          9   will be honest to start and would like to keep that 
 
         10   presumption. 
 
         11          Q.     I guess maybe the question I would 
 
         12   make then is, has the Agency consulted with either 
 
         13   the enforcement folks or the Attorney General's 
 
         14   Office about these provisions? 
 
         15            MR. MATOESIAN:  And just for clarification, 
 
         16   the Agency does not prosecute perjury, we might 
 
         17   refer them to the Attorney General, just to clarify. 
 
         18   I don't know if anyone has spoken to the Attorney 
 
         19   General. 
 
         20            MR. NILLES:  If I could request that 
 
         21   the Agency would do that to make sure that this 
 
         22   actually picks up the type of cases that the 
 
         23   Attorney General would prosecute, particularly, 
 
         24   false statements.  We know it's a big deal at the 
 
 
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          1   federal level, and I would believe an important tool 
 
          2   at the state level as well. 
 
          3            HEARING OFFICER ANTONIOLLI:  Now, 
 
          4   do any of the Board members have any further 
 
          5   questions?  Anybody else? 
 
          6                Let's go off the record here for a 
 
          7   minute. 
 
          8                     (Whereupon, a discussion was had 
 
          9                      off the record.) 
 
         10            HEARING OFFICER ANTONIOLLI:  And I'll 
 
         11   note, too, that Board Member Moore has left the 
 
         12   room.  We still have Board Member Melis and Board 
 
         13   Member Johnson here.  We are approaching 12:45 here, 
 
         14   or just passed 12:45, and I'd like to state that the 
 
         15   Board has scheduled a second hearing in this matter 
 
         16   for June 14th, 2005, in Springfield.  The hearing 
 
         17   will be at 10 a.m. in the Board offices there. 
 
         18                Any person wishing to testify should 
 
         19   prefile testimony by Wednesday, June 1st.  We expect 
 
         20   to have the transcript of today's hearing available 
 
         21   in approximately eight business days.  Soon after we 
 
         22   receive it, the Board will post the transcript on 
 
         23   our website, which is www.ipcb.state.il.us. 
 
         24                There, the transcript, as well as the 
 
 
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          1   Agency's and the IERG's proposal and all of the 
 
          2   Board orders, including prefiled testimony, will be 
 
          3   viewable and downloadable at no charge. 
 
          4   Alternatively, you can order a copy of the 
 
          5   transcript from the Clerk of the Board at $.75 a 
 
          6   page. 
 
          7                Anyone can file a public comment in 
 
          8   this proceeding with the Clerk of the Board, 
 
          9   Ms. Dorothy Gunn, but please note that when filing 
 
         10   public comment, you must serve all of the people on 
 
         11   the service list with a copy of that public comment. 
 
         12   And as I mentioned earlier today, I have extra 
 
         13   copies of the current service list and notice list 
 
         14   here with me.  But, also, if this is a few weeks 
 
         15   down the road, please check with the Board for the 
 
         16   current service list.  And as I noted earlier, 
 
         17   Mr. Matoesian also has extra copies of the proposal 
 
         18   and extra copies of the prefiled testimony so far, 
 
         19   if you'd like. 
 
         20                If there's nothing further, then I wish 
 
         21   to thank everybody here for your comments and your 
 
         22   testimony, and the hearing is closed.  I will see 
 
         23   you again on June 14th.  Thank you. 
 
         24                     (Which were all the proceedings 
 
 
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                                                                      125 
 
 
 
          1                      had on this date.) 
 
          2   STATE OF ILLINOIS   ) 
                                  )  SS. 
          3   COUNTY OF DUPAGE    ) 
 
          4    
 
          5                     I, STACY L. LULIAS, CSR, do hereby 
 
          6   state that I am a court reporter doing business in 
 
          7   the City of Chicago, County of DuPage, and State of 
 
          8   Illinois; that I reported by means of machine 
 
          9   shorthand the proceedings held in the foregoing 
 
         10   cause, and that the foregoing is a true and correct 
 
         11   transcript of my shorthand notes so taken as 
 
         12   aforesaid. 
 
         13    
 
         14    
 
         15                         _____________________ 
                                    Stacy L. Lulias, CSR 
         16                         Notary Public, 
                                    DuPage County, Illinois 
         17    
 
         18   SUBSCRIBED AND SWORN TO 
              before me this ___ day 
         19   of ________, A.D., 2005. 
 
         20    
              _________________________ 
         21   Notary Public 
 
         22    
 
         23    
 
         24    
 
 
                        L.A. REPORTING (312) 419-9292