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
     
     

     
    2
     
     
     
    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
    20
     
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    L.A. REPORTING (312) 419-9292
     
     

     
    3
     
     
     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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,
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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.
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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.
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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?
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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.
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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?
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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,
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    63
     
     
     
    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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    64
     
     
     
    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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    65
     
     
     
    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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    66
     
     
     
    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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    67
     
     
     
    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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    68
     
     
     
    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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    69
     
     
     
    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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    70
     
     
     
    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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    71
     
     
     
    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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    72
     
     
     
    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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    73
     
     
     
    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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    75
     
     
     
    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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    76
     
     
     
    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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    77
     
     
     
    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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    78
     
     
     
    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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    79
     
     
     
    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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    80
     
     
     
    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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    81
     
     
     
    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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    82
     
     
     
    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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    83
     
     
     
    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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    84
     
     
     
    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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    85
     
     
     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    86
     
     
     
    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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    87
     
     
     
    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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    88
     
     
     
    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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    89
     
     
     
    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.
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    90
     
     
     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    91
     
     
     
    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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    92
     
     
     
    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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    93
     
     
     
    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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    94
     
     
     
    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.
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    95
     
     
     
    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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    96
     
     
     
    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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    97
     
     
     
    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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    98
     
     
     
    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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    99
     
     
     
    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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    100
     
     
     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    101
     
     
     
    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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    102
     
     
     
    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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    103
     
     
     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    104
     
     
     
    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:
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    105
     
     
     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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.
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    107
     
     
     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    110
     
     
     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    111
     
     
     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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:
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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:
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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,
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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?
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    121
     
     
     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    122
     
     
     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    123
     
     
     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    124
     
     
     
    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
     
     
    L.A. REPORTING (312) 419-9292
     
     

     
    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
     
     

     

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