2425
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
West Suburban Recycling and Energy )
Center ("WSREC"), L.P. )PCB 95-119
)
vs. )(Consolidated
) with
Illinois Environmental Protection ) PCB 95-125)
Agency )
The following is the transcript of the
TENTH DAY of hearing, a public hearing held in the
above-entitled matter, at the Illinois Labor Relations
Board, State of Illinois Building, 4th Floor Hearing Room,
160 North LaSalle Street, Chicago, Illinois, on the 6th of
March, 1996 A.D., commencing at the hour of 9:30 o'clock
a.m.
BEFORE:
MR. MICHAEL L. WALLACE, CHIEF HEARING OFFICER
APPEARANCES:
Ms. Percy Angelo,
Mr. Thomas W. Dimond,
Mr. Jonathan E. Singer and
Mr. John Z. Lee
Mayer, Brown & Platt
180 South LaSalle Street
Chicago, Illinois 60603
appeared on behalf of WSREC;
Mr. Daniel Merriman,
Mr. John J. Kim,
Ms. Laurel L. Kroack and
Ms. Christina L. Archer
Division of Legal Counsel
Illinois Environmental Protection Agency
Springfield, Illinois 62794-9276
appeared on behalf of IEPA;
Sally A. Guardado, C.S.R.
17369 Highwood Drive
Orland Park, IL 60462
(708) 479-6664
2426
APPEARANCES (CONTINUED):
Ms. Ellen O'Laughlin and
Mr. George Cahill
State of Illinois
Office of the Attorney General
100 West Randolph Street
Chicago, IL 60601
appeared on behalf of the State.
ALSO PRESENT:
Mr. Thomas F. Kuslik
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
Members of the Public.
Sally A. Guardado, C.S.R.
17369 Highwood Drive
Orland Park, IL 60462
(708) 479-6664
2427
INDEX
WITNESS:
JAMES D. COBB 2444
Direct Examination by Ms. Kroack 2444
Cross-Examination by Mr. Dimond 2457
Redirect Examination by Ms. Kroack 2473
Redirect Examination by Mr. Kim 2475
CHRISTOPHER P. ROMAINE 2477
Direct Examination by Ms. Kroack 2477
Voir Dire by Ms. Angelo 2478
Examination by
Hearing Officer Wallace 2486
Direct Examination (Continued)
by Ms. Kraock 2495
Cross-Examination by Ms. Angelo 2569
Redirect Examination by Ms. Kroack 2594
Recross-Examination by Ms. Angelo 2603
EXHIBITS
RESPONDENT'S EXHIBITS FOR IDENTIFICATION
5 & 6 2443
RESPONDENT'S EXHIBITS IN EVIDENCE
4 & 5 2567
6 2632
PETITIONER'S EXHIBITS IN EVIDENCE
129 2431
131, 132 & 133 2441
30 2610
32 2611
35 2612
39 2616
57 & 58 2617
73 2619
112 2621
Sally A. Guardado, C.S.R. * (708) 479-6664
2428
HEARING OFFICER WALLACE: Pursuant to adjournment, I
now call dockets PCB 95-119 and 95-125. This is West
Suburban Recycling and Energy Center L.P. versus the
Illinois Environmental Protection Agency.
Ms. Angelo are there any additional
appearances?
MS. ANGELO: No, sir.
HEARING OFFICER WALLACE: Ms. Kroack?
MS. KROACK: No.
HEARING OFFICER WALLACE: Let the record reflect the
same appearances as before.
Preliminarily, I have the motion on the
Request for Admissions. And although there may or may not
be a dispute on the dates, I don't think there's a dispute
over the fact that there at least was a day or two delay
in service.
Would you agree with that Mr. Kim?
MR. KIM: Yes.
HEARING OFFICER WALLACE: And, I think, based upon a
couple of cases that have gone on at the Board the last
couple of months, plus the Supreme Court case, Bright
versus Dickie, which is 209 Illinois Decision 735, the
Sally A. Guardado, C.S.R. * (708) 479-6664
2429
motion -- I'm not even sure. You have a motion to admit
the request for admissions?
MS. ANGELO: We offered them as an exhibit. And we
will make a motion to admit them as an exhibit.
HEARING OFFICER WALLACE: Did you hold on to the
exhibit or did you give it to me?
MR. KUSLIK: You still have one up there.
HEARING OFFICER WALLACE: 12-?
MR. SINGER: 129.
HEARING OFFICER WALLACE: 129. Okay. Then, In
terms of the Request to Admit, Exhibit 129 is granted.
The Agency's counter-motion for an extension of time or
leave to file responses, I believe has to be denied.
The Supreme Court case is fairly clear
that the Request for Admission, while the Court or in my
case, the Hearing Officer, would probably have the
discretion to extend the time, if they are served late,
they are served late.
MR. KIM: Could you give me the citation again? I'm
sorry. 209 --
HEARING OFFICER WALLACE: Which one would you like?
It's 209 Illinois Decision 735 or 652 N.E.2d 275.
Sally A. Guardado, C.S.R. * (708) 479-6664
2430
The case basically goes onto say that the
person requesting to file late has to show good cause for
the late filing. And the burden does not shift to the
other side to prove lack of prejudice.
So, in this instance, even though West
Suburban may not have been prejudiced, it is not their
burden to show lack thereof.
And then the service date. I checked the
Board's procedural rules, and the service is when you put
it into the mail. So, then we have the Mailbox Rule,
which really doesn't apply, because the date of service is
what you're representing it was served.
So if it was late, according to the Board
rules, they would have been deemed admitted.
MR. KIM: I think on behalf of the Agency, we would
generally reserve the right to raise the issue further to
the Board.
HEARING OFFICER WALLACE: You're certainly welcome
to do that.
The Board has considered this a couple of
times in the past few months. In fact, in the two cases
you have cited, Olive Street and People versus Wyman. And
Sally A. Guardado, C.S.R. * (708) 479-6664
2431
I think that my ruling this morning is consistent with
those cases and with the Supreme Court case.
So, Petitioner's Exhibit 129 is admitted.
I just want to check and make sure I have
it up here.
Yes. Entitled Admissions by the Agency
pursuant to Section 103.162 (c).
(Said document, heretofore marked
Petitioner's Exhibit No. 129 for
identification, was admitted into
evidence, to wit, as follows:)
HEARING OFFICER WALLACE: All right. Then, any
preliminary matters?
MS. ANGELO: I wanted to ask for just a minute to
raise with you a point about the Grigoleit case which I
missed yesterday in our discussion.
It was a result of, basically, getting
too many notes too fast and I couldn't understand what I
was being told.
The point being, this is the discussion
we had about whether it would be appropriate for the
Agency to call witnesses to address the factual matters in
Sally A. Guardado, C.S.R. * (708) 479-6664
2432
the Mathur memorandum and to in some way contradict those
facts as stated in the memorandum.
The Grigoleit case, which we mentioned
yesterday, and we've provided a copy for the Hearing
Officer and the Agency this morning, indicates that in the
instance where materials have not been provided during
discovery, and, in that case, what the petitioner asked
for -- That was a permit appeal. The petitioner asked for
the case to be dismissed, and the Board held that that was
not appropriate in that case, but that the appropriate
sanction, and I think I'm reading for it from page 11 of
the draft providers. Of the opinion provided.
"The appropriate sanction is for the
Board to disregard any evidence presented
by the Agency on any matters pertaining to
the type of information revealed in the
withheld documents that may be favorable
to the Agency."
And I wanted to provide a copy of the
case, and make it clear that that's the principal in
Grigoleit that we were relying on, because I know I did
not express it well yesterday.
Sally A. Guardado, C.S.R. * (708) 479-6664
2433
HEARING OFFICER WALLACE: Thank you.
Again, even with the Grigoleit case in
front of me, I haven't read it for a while.
I, certainly, am not going to rule that
the Agency's act was so egregious that in light of the
representations that Mr. Kim made yesterday -- I mean, in
light of his written response and his oral response, I'm
not going to bar discussion of this memorandum, you know,
except for in terms of what Mr. Kim mentioned.
So, as I understood it, the testimony is
going to be, if any at all, is going to be very limited.
And I have admitted the document, so, it seems to me that
Grigoleit would say, probably not even let the information
in at all.
Okay. Any other preliminary matters?
MS. ANGELO: There's one other issue. And that was
the additional documents that the Agency provided to us
that were kind of sandwiched. That memorandum, the fax
cover sheets and so forth.
We had -- this was the -- I think there
were four pages. There were two fax cover sheets and
there was the unmarked copy of the memo without the fax
Sally A. Guardado, C.S.R. * (708) 479-6664
2434
indications on it.
We have been anticipating that, with the
Agency's Land witnesses, we would identify these documents
and make the record complete on what surrounded this
memorandum when it was sent from Mr. Mathur to Mr. Child
and then from Mr. Child to the various individuals in
Land.
In light of the fact that those
individuals are not going to be called, we would ask that
the Agency wouldn't agree to stipulate to the additional
documents that accompanied that Mathur memorandum.
MR. KIM: I'm sorry -- I don't understand what we're
being asked to stipulate to.
HEARING OFFICER WALLACE: You provided --
MR. KIM: I know what the documents are. I'm not
sure. As to their authenticity? Relevance? I don't
know --
HEARING OFFICER WALLACE: Would you stipulate to --
We can mark them as exhibits, but stipulate to the two
cover sheets.
MR. KIM: I think we would stipulate that the cover
sheets are accurate depictions of transmittal cover sheets
Sally A. Guardado, C.S.R. * (708) 479-6664
2435
that were sent from the parties addressed -- from the
parties identified to the parties address.
We certainly don't stipulate as to their
relevance. And, in so far as those documents would be
considered appended to the Mathur memorandum, we would
certainly claim that those would fall within the privilege
that was claimed, as well.
And, certainly, I think those same
arguments would be raised as to the copy of the
memorandum.
HEARING OFFICER WALLACE: All right.
MS. ANGELO: I would understand, certainly, the
Agency's position with regard to the privilege issue. And
I would assume your ruling on that would be the same.
I think, authenticity. We got them from
the Agency days ago. I don't know that there is any
question there.
And relevance. They're relevant to the
same degree that the initial memorandum was relevant, and
that had to do with the subjects it covered.
And, also, I think the importance of
these additional documents as they demonstrate the path of
Sally A. Guardado, C.S.R. * (708) 479-6664
2436
who were the recipients of this memorandum.
You'll recall that the testimony we had
from Mr. Mathur is that we sent it to Mr. Child and that
Mr. Child, then, faxed it on to someone in Land. And
these documents make it clear how that transmission took
place and who in Land received it.
The other, I think, thing -- And what we
have done, by the way, is provide two exhibits and we can
distribute those so you can see the way --
HEARING OFFICER WALLACE: And I'll put on the record
that the cover sheet from Bill Child to Harry C., Ted D.,
and Ron Harmon is page one.
Page two is a page which has been
withheld and I have previously ruled that that is not
material to this case, and, therefore, there will be a
gap. Page two will not appear. But that's what that page
two is.
MR. DIMOND: Actually, Mr. Hearing Officer, we've
marked them as three separate exhibits.
HEARING OFFICER WALLACE: All right.
MS. ANGELO: The other thing we understand is that
the document that, if you'll see in front of you now, is
Sally A. Guardado, C.S.R. * (708) 479-6664
2437
Petitioner's Exhibit 133, which is the memorandum itself.
We understood as it was produced to us, that it was from
Mr. Child's file?
MS. KROACK: No. The initial one -- I don't
remember what file it came from, but it wasn't from Mr.
Mathur's file. This was the one that we subsequently
discovered in Mr. Mathur's incineration file.
HEARING OFFICER WALLACE: The non-faxed copy?
MS. KROACK: 133.
HEARING OFFICER WALLACE: 133.
MS. KROACK: Right.
HEARING OFFICER WALLACE: Was found in Mr. Mathur's
incineration file.
MS. KROACK: Right.
MS. ANGELO: I guess, then I'm a little bit confused
because as the initial one was produced to us, that was
represented as having been found in Mr. Mathur's
incineration file.
And so -- And I understood that we then
asked the Agency if they would explain whether there were
any others in the Land files. And then we were provided
with a document that's labeled as 133.
Sally A. Guardado, C.S.R. * (708) 479-6664
2438
So, I think we have the order of things
backwards.
MS. KROACK: What we initially had was a copy that
the Bureau of Land people had faxed. We did not know Mr.
Mathur had a copy of this.
And we went back and looked for all the
copies, and, apparently, his secretary had stuck a copy of
this in one portion of that incineration file, but it
wasn't with the initial folder.
That's what you asked us to do. So we
went and searched again.
MR. MERRIMAN: Well, okay. I certainly had
misunderstood that then, and the record will demonstrate
what actually was said about it. But, I believe the
explanation we were given for the earlier document, 120,
was that it had been produced after having been found in
Mr. Mathur's incineration file.
MR. KIM: Mr. Hearing Officer, the representation
made was upon review of a deposition transcript in which a
statement was made was that all documents in Mr. Mathur's
files had been produced. The Agency went back, checked
that file and found that this memorandum was, actually,
Sally A. Guardado, C.S.R. * (708) 479-6664
2439
was in place, was in that memo -- or was in that file.
As we stated before, the memorandum that
we produced, was the memorandum that we had held, which we
did not realize was in Mr. Mathur's file.
When we discovered that we had a
memorandum, or copy of that memorandum in the file, we
produced the copy as, I believe, Exhibit 120. The request
was then made, please produce all copies of that
memorandum as they may exist within the Agency.
I don't believe it was limited to Land.
It was all copies. We, therefore, asked all Land
personnel and all Air personnel if they had any copies.
The copy which we produced, which has
been marked as Exhibit 133, was the only other copy that
was found by us during review.
Therefore, both copies have been
produced. Copy number -- Petitioner's Exhibit 133 was the
document which initially triggered our search and our
concern that the statement in the deposition might have
been incorrect.
We produced the first copy that we had
which was the document we've been holding as part of our
Sally A. Guardado, C.S.R. * (708) 479-6664
2440
privilege log. That was actually our privilege log and
that's what we represented was disclosed.
When further request was made to provide
all copies, this was the only other copy we had.
HEARING OFFICER WALLACE: Yes. That seems to
summarize what I recall from the transcript, that the
request was made to go and look for the fax cover sheets
and any other copies.
MS. ANGELO: Well, then, I guess what we're asking
the Agency to confirm for us -- and, I think I just have
-- is that the document that's Petitioner's Exhibit 133 is
from Mr. Mathur's file?
MR. KIM: That's correct.
MS. ANGELO: Is that correct?
HEARING OFFICER WALLACE: Then let's try to put it
on the record. 133 is from Mr. Mathur's incineration
file.
MR. KIM: Yes.
HEARING OFFICER WALLACE: Where did 120 come from?
MR. KIM: 120 was apparently the copy that made it's
way from Mr. Mathur to Mr. Child to, as represented by
Petitioner's Exhibit 131, representative of the Bureau of
Sally A. Guardado, C.S.R. * (708) 479-6664
2441
Land.
HEARING OFFICER WALLACE: So 120, are you saying to
the best of your knowledge, was in the Bureau of Land?
MR. KIM: That's right. And that is evidenced, I
believe, by the fax transmission lines on the top of it.
The memorandum.
HEARING OFFICER WALLACE: All right.
Okay. Petitioner's Exhibits 131, 132,
and 133, having been stipulated to, are admitted into
evidence.
MR. KIM: I'm sorry. I would just again note --
HEARING OFFICER WALLACE: With the Agency's
reservations.
MR. KIM: Thank you.
MR. MERRIMAN: As to, both, privilege and relevance.
(Said document, heretofore marked
Petitioner's Exhibits Nos. 131, 132
and 133 for identification, were
admitted into evidence, to wit, as
follows:)
HEARING OFFICER WALLACE: Mr. Kim, did you have any
preliminary matters?
Sally A. Guardado, C.S.R. * (708) 479-6664
2442
MR. KIM: Yes, just one.
We informed -- As we stated at the close
of the Hearing yesterday, we were going to review what
points we needed to make in the remainder of our case in
chief.
We had a discussion with Mr. Bill Child
last evening. After our conversation with him, it was
determined that his testimony was not necessary.
We then called John Singer. I apologize.
I stated I would call Ms. Angelo and I didn't have her
direct line at Mayer, Brown. I did have Mr. Singer's. So
we called and left a message stating that Mr. Child would
not be called.
On further review during the evening, we
have now determined as to the Air witnesses which we had
planned today. We have knocked two more of those people
off our list.
So, we only have two witnesses planned
for today. Those would be Mr. Romaine and Mr. Cobb.
And, as what I would hope to be one of
the last accommodations that we would ask. Mr. Cobb is
being called for a very limited series of questions on one
Sally A. Guardado, C.S.R. * (708) 479-6664
2443
specific topic.
We don't think his Direct Examination on
our part will last more than ten to fifteen minutes, at
best. And Mr. Romaine's will take slightly longer.
So, we were hoping to be able to take
Mr. Cobb first and allow him to leave and then pick up
with Mr. Romaine.
MS. ANGELO: Could we have two minutes to switch
around here?
We'd be happy to try to accommodate them.
Could we have five minutes to try and shuffle documents?
HEARING OFFICER WALLACE: Sure.
Let's go off the record for five minutes.
(Whereupon, a discussion was held
off the record.)
(Whereupon, Respondent's Exhibits
Nos. 4 & 5 were marked for
identification.)
HEARING OFFICER WALLACE: Miss Kroack?
MS. KROACK: I would like to call Mr. Cobb.
HEARING OFFICER WALLACE: Mr. Cobb, you're being
recalled. You've previously sworn in this matter. Please
Sally A. Guardado, C.S.R. * (708) 479-6664
2444
consider yourself still under oath.
You may proceed.
(The witness was previously sworn.)
JAMES D. COBB
called as a witness, having been previously sworn, was
examined and testified as follows:
DIRECT EXAMINATION
BY MS. KROACK:
Q. Good morning, Mr. Cobb.
There is a Petitioner's Exhibit 39 that's
in front of you. Could you look at that please?
A. Yes, I see the exhibit.
Q. Could you identify it?
A. Yes.
This is a document which I had prepared
in preparation for a Technology Review Committee meeting.
And it has some additional notes on it which are not mine.
Q. Okay. I believe you testified earlier that you
couldn't remember when you created that document; is that
correct?
A. That's correct.
Q. Can you now remember when that document was
Sally A. Guardado, C.S.R. * (708) 479-6664
2445
created?
A. I now know when that document was created, yes.
Q. How do you know that?
A. When I produce a document on the word processer
in my office, I encode the file name with the date in
which that document is being initiated.
Q. Okay. Could you look at Respondent's Exhibit
6, please, and look on the back page of that?
A. Yes.
Q. On the last line you have something called
"file." Could you describe that for me?
A. Yes.
When I was asked to determine the date
that this document had been produced, I went back and
obtained the original document from my computer. And at
the bottom of that document I printed the file name for
the document.
Q. Would you tell me what this file name means to
you?
A. The file name is encoding of the date that the
document was initiated and it bears my initials so that it
could be identified.
Sally A. Guardado, C.S.R. * (708) 479-6664
2446
The first digit in the file name
indicates the year of the decade. The next three digits
indicate the day of the year or Julian date. The next
digit indicates the sequence in which a file was
initiated. The next three characters are my initials.
And then there's a period. And then there are three
letters which designate the type of document that it is.
MR. DIMOND: Mr. Hearing Officer, at this point I'm
going to object to any testimony or use of this document.
This was provided to us first time today.
This is an unfair surprise. It is the same sort of thing
that they did with the Mathur memorandum, except even more
so.
And, under Grigoleit, they are not
allowed to surprise people at hearing and then elicit
selfserving testimony in that regard.
And I just think that this method of
proceeding is unfair to the applicant. It's not what a
permit hearing is supposed to be about, being on the
record. And producing a document like this and surprising
the applicant in this manner is unfair and it's
effectively denying us our due process.
Sally A. Guardado, C.S.R. * (708) 479-6664
2447
MR. KIM: In response, this document was prepared
only to try and ascertain, as Mr. Cobb stated, the exact
date when this -- Petitioner's Exhibit Number 39 was
created.
As he stated, he was not able to
remember, based just upon his recollection, when that
document was created.
He was asked if there was any other way
that he could find out the date of creation. It's my
understanding -- and we can certainly elicit testimony
from Mr. Cobb as to the exact date that this document was
generated -- but, it was done, I believe, no more than two
days ago. Three days ago. Something like that. And it's
being provided for the sole purpose of trying to explain a
gap in his memory that he had testified to earlier.
HEARING OFFICER WALLACE: Objection is noted and
overruled.
Please continue.
BY MS. KROACK:
Q. Is this a true and correct copy of our computer
file with respect to that document?
A. Yes, it is.
Sally A. Guardado, C.S.R. * (708) 479-6664
2448
The only thing that doesn't exist in the
computer file is the last entry, which lists the file
name.
Q. Okay.
A. That was not imprinted on the file, but rather
was just imprinted on this page.
Q. Okay. When did you prepare this particular
document?
A. The file name indicates that the document was
initiated in 1995, on the 166th day of that year.
Q. When I say this document, the document with the
file encoded on the bottom.
When were you requested to produce this
particular document?
HEARING OFFICER WALLACE: Have you identified this?
MS. KROACK: Yes.
HEARING OFFICER WALLACE: Then you might refer to it
as the Respondent's Exhibit.
MS. KROACK: Respondent's Exhibit 4.
MR. KIM: 6.
MS. KROACK: 6.
THE WITNESS: Yes, I was asked to determine the date
Sally A. Guardado, C.S.R. * (708) 479-6664
2449
of this document. And I did this on last Sunday.
BY MS. KROACK:
Q. Okay. Thank you. One last question.
Let me show you a copy of a calendar from
1995. Can you tell me what the 166th day of the year was?
A. That was June 15th of 1995.
Q. Thank you.
I have no further questions -- Wait. I'm
sorry.
And was last Sunday, March 3rd, Mr. Cobb?
A. Yes, I believe it was.
MS. KROACK: Thank you. No further questions.
HEARING OFFICER WALLACE: Mr. Dimond?
MR. DIMOND: I think, Mr. Hearing Officer, we would
like to renew our objection.
It's Ms. Angelo's recollection that
during testimony by Mr. Harmon, he was asked if he could
reproduce documents from his files.
MS. ANGELO: Perhaps I could address that.
In Mr. Harmon's deposition, you'll recall
that Mr. Harmon had an undated review sheet. And
Mr. Dragovich said that's not their practice. And if he
Sally A. Guardado, C.S.R. * (708) 479-6664
2450
noticed that, he would have called it to Mr. Harmon's
attention.
I believe I asked Mr. Harmon in his
deposition if there was any way of recreating the date of
his review sheet. And I was told there was not.
The document that Mr. Cobb has recreated
here is a document. The attached second page to this memo
is a document. Presumably, now that we know how it's
done, there are many more documents in the Agency files
like this that also should have been produced to us in the
course of this discovery.
There are a number of points in this case
where dates have been very important and have been left
off one or another kind of Agency memo.
And to learn now, that, gee, when they
want to find a date, they ask, but, otherwise, that we're
not to be provided those dates, I think is unfair.
MR. KIM: In response.
I would certainly agree that in this
case, dates are of particular importance and concern. And
that is exactly why we have endeavored to try to clarify
Mr. Cobb's testimony as to the date of the creation of
Sally A. Guardado, C.S.R. * (708) 479-6664
2451
Petitioner's Exhibit 39.
As to Ms. Angelo's reference to a
statement made by Mr. Harmon.
I point out, first of all, that was a
statement made by Mr. Harmon and not by Mr. Cobb.
Second of all, I don't know, but it was
certainly my -- Based upon just my casual observance, I
know that computer systems set up within the Agency are
set up differently.
Mr. Harmon, based upon his testimony, I
would assume, does not have the ability to recreate the
documents in the manner it existed. Mr. Cobb has stated
that he does. Because one person within the Agency can
perform certain tasks on his computer and another person
does not. I can certainly speak from firsthand knowledge
that they vary from one desk to the next. And that's not
just to the capabilities of our computers and our systems.
But I don't believe that anything that
Mr. Cobb has said is inconsistent with what Mr. Harmon
said. He's testified as to his abilities in producing
this document.
Mr. Harmon stated he was not able to
Sally A. Guardado, C.S.R. * (708) 479-6664
2452
produce something similar on his computer.
MS. ANGELO: But the point is that this attachment
that they've given us is a document. And we asked for
computer records and we were not provided any throughout
the discovery that did exist.
HEARING OFFICER WALLACE: If I might.
Mr. Cobb, could you explain, for the
record, how this, on Respondent's Exhibit 6, what appears
between two thick black lines, maybe in a little more
detail, what that is? Why it does not show up on all
documents? If you know.
THE WITNESS: Okay. I was asked to determine the
date.
What I did to do that, because of the
manner in which I initialize documents that I produce, I
went back, retrieved the computer record. And in order to
show what the file name was, I added this particular line.
The computer processor has a function in
it in which it will imprint onto the document the file
name. And since that file name is an encryption of the
date of initiation, I printed that date or that file name
out.
Sally A. Guardado, C.S.R. * (708) 479-6664
2453
HEARING OFFICER WALLACE: All right. What type of
system is this kept in?
THE WITNESS: This is WordPerfect 6.1.
THE WITNESS: And the files and numbers between the
two black lines, that's the file name you gave it in the
WordPerfect system -- the word processing system?
THE WITNESS: Yes.
HEARING OFFICER WALLACE: And that does not
print-out on every document that you print out?
THE WITNESS: Not unless it's specifically
requested, no.
HEARING OFFICER WALLACE: All right. Do you keep
material on hard drive or floppy disk?
THE WITNESS: It's kept on the Agency's network.
HEARING OFFICER WALLACE: And is it kept under your
file or is it --
THE WITNESS: It's kept under a file which is only
accessible to myself and the network administrators.
HEARING OFFICER WALLACE: And this is -- What does
the letters WPD mean?
THE WITNESS: That is letters which the word
processor uses to identify the type of file it is.
Sally A. Guardado, C.S.R. * (708) 479-6664
2454
HEARING OFFICER WALLACE: And do you know what those
three letters mean?
THE WITNESS: It's just a document.
HEARING OFFICER WALLACE: Do you know if it stands
for WordPerfect document? Or not?
THE WITNESS: I don't know precisely what it stands
for.
MR. KIM: Mr. Wallace, I might add, obviously, the
reason that Mr. Cobb is able to give the date, the 166th
day of 1995, I believe is what he said, is, among other
things, is because his system of naming the document is
such that he would be able to determine that.
There is no reason to believe, certainly
based upon his testimony, that Mr. Harmon would have
identified documents to the extent that he even prepared
these. He may not even -- I don't know whether Mr. Harmon
does his own computer work, as apparently Mr. Cobb does.
But there is no reason to believe that he would use the
same system that Mr. Cobb does or that, for that matter,
that was done on a network system or if it was done on a
stand alone or what have you.
And as to the comment that this was not
Sally A. Guardado, C.S.R. * (708) 479-6664
2455
produced in a timely manner as far as it being a computer
file.
As Mr. Cobb stated, this was produced
after February 27, 1995. And the Agency's production of
documents did not include, I believe, many, if any
documents, post-denial dates, simply because, again, we
don't feel those are relevant here. And those were not
requested in terms of --
MS. ANGELO: I guess if Mr. Kim's argument is that
this was produced after February 27th, 1995, and,
therefore, wasn't called for by our discovery, I don't see
what relevance the document that's being provided here has
for the record and the testimony that accompanies it.
HEARING OFFICER WALLACE: Well --
MS. ANGELO: I would remind you and the Agency, that
the document we're talking about here was provided in
their original filing of the record.
They provided this as part of the record.
And they've now decided that they don't want it in the
record, and they're going to try and take it out of the
record by the methods that they're using.
But we've asked any number of people
Sally A. Guardado, C.S.R. * (708) 479-6664
2456
about the dating of this document. No one was able to
clarify that, as we've gone along.
We were told by Mr. Harmon -- and I can
read you his testimony -- that he had no way, didn't know
of a way to recreate the date of the document.
HEARING OFFICER WALLACE: That's sort of immaterial
because it's not Mr. Harmon's document.
MS. ANGELO: But they're using the same Agency
system.
MR. KIM: That's not been established.
HEARING OFFICER WALLACE: Yes.
MS. ANGELO: It seems to me that the burden on that
point should not be ours.
The burden should be theirs to say, yes,
we know there is a difference between what Mr. Harmon told
us and what Mr. Cobb is telling us today.
They don't get to pick and choose the
facts to fit the witness they happen to have up at the
time. And this is what they're doing.
HEARING OFFICER WALLACE: Well --
MS. ANGELO: Suppose, for example, if they had a
good faith belief that this was an appropriate way to do
Sally A. Guardado, C.S.R. * (708) 479-6664
2457
this, don't you think someone should have told us about
this before we went on the record this morning? With a
witness who wasn't supposed to be on this morning?
I think that timing stinks.
HEARING OFFICER WALLACE: Well, Ms. Angelo, you're
entitled to think that the timing stinks. However, I
don't agree with that. And your renewed objection is,
again, noted for the record and is overruled.
If you wish to Cross-examine Mr. Cobb on
his testimony this morning, please begin.
CROSS-EXAMINATION
BY MR. DIMOND:
Q. Mr. Cobb, did you create what has been marked
Respondent's Exhibit 6 at the request of attorneys for the
Agency?
A. Yes, I did.
Q. And, if I understand your testimony right, you
did that on Sunday?
A. This last Sunday, yes.
Q. Do you recall being asked about what's been
identified as Petitioner's Exhibit 39 at your deposition?
A. I don't recall specifically if I was asked
Sally A. Guardado, C.S.R. * (708) 479-6664
2458
about it, no.
Q. Do you recall being asked if you knew when that
document, that the typewritten part of that document had
been created?
MR. KIM: Objection. It's already been established
that in previous testimony, Mr. Cobb had said he was not
aware of the document's creation.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: I believe that I had said, in the
past, that I didn't know when the document was created.
BY MR. DIMOND:
Q. And when you said that, you said it under oath;
is that correct?
A. That's correct.
Q. When you were shown Petitioner's Exhibit 39
during the deposition and you gave your testimony under
oath that you did not know when the typewritten part had
been created, did you give any indication that the
document should not be in the record?
MR. KIM: Objection. Relevance.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: No.
Sally A. Guardado, C.S.R. * (708) 479-6664
2459
MR. DIMOND: Mr. Hearing Officer, the envelope for
Petitioner's Exhibit 8 doesn't seem to --
MS. KROACK: We put it on the table.
MR. DIMOND: Thank you.
BY MR. DIMOND:
Q. Mr. Cobb, I was to hand you what we have
previously marked as Petitioner's Exhibit 8, which is a
copy of the denial letter. In that package is the denial
letter dated February 27, 1995 by the Bureau of Air.
It's my recollection that you previously
testified that you drafted that document; is that correct?
A. Yes, I did.
MR. KIM: I'm sorry. Objection.
I think any questions directed towards
the February 27, 1995 denial letter are outside the scope
of Mr. Cobb's testimony.
HEARING OFFICER WALLACE: I assume you are going to
tie it up to the Direct?
MR. DIMOND: Most definitely.
HEARING OFFICER WALLACE: All right. Overruled at
this time.
BY MR. DIMOND:
Sally A. Guardado, C.S.R. * (708) 479-6664
2460
Q. If you look at the second page of that
document, does that second page have a line on the bottom
with some encrypted -- "encrypted" may not be the right
word. But with some initials and numbers?
A. Yes, it does.
Q. If we read that line from left to right, it
reads: DES:JDC/0224952.DOC; is that correct?
A. Yes, it does.
Q. Don't the numerals on this document, 022495
indicate that you first created this document on
February 24, 1995?
MR. KIM: Objection. Again, this is a question
which is clearly outside the scope of Direct testimony.
Mr. Cobb has not made any representations
whatsoever as to the encryption line or any other part of
the February 27, 1995 denial letter.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Yes. That's correct. It does
indicate the date which the document was initiated.
BY MR. DIMOND:
Q. And this method of inputting numerals into the
document, is different than what you've testified about
Sally A. Guardado, C.S.R. * (708) 479-6664
2461
with regard to Respondent's Exhibit 6; isn't it?
A. Yes, it is.
Q. Either/or both the documents, the typewritten
part of Petitioner's Exhibit 39 and Respondent's Exhibit
6, summarize data from a report by U.S. EPA that was
published in December 1994; isn't that correct?
A. That's correct.
MR. DIMOND: Okay. Mr. Hearing Officer, at this
point in time, I'm going to ask leave to go outside the
scope of what was asked on Direct, specifically, because
at the time of Mr. Cobb's deposition, both days of his
deposition, and at the time of his testimony in the case,
we had not been provided -- Well, I guess maybe by that
time we did have the privilege log. But we had not been
provided a copy of what has been marked as Exhibit 120.
And I have a very few questions that
relate to timing of events in the time frame of that memo
that we would like to ask Mr. Cobb. And I would, again, I
would just ask leave to go outside the scope because of
our inability to ask those questions, given the
non-existence of the document, or our not having the
document either at his deposition or at the time of his
Sally A. Guardado, C.S.R. * (708) 479-6664
2462
testimony.
MR. KIM: Objection.
First of all, again, as Mr. Dimond has
acknowledged, that is certainly outside the scope of
Direct testimony.
Second, the subject matter of what he
seeks to elicit testimony on is exactly that, which, in
repeated pleadings and very strenuous statements made at
hearing on the record, the Respondent's have attempted
to -- I'm sorry. The Petitioners have attempted to
exclude that type of testimony.
They have stated that they feel that it
is inappropriate for the Agency to elicit such testimony.
They feel that it's inappropriate for that kind of
information to be put into the record. And now they are
seeking to do just that.
And, certainly, we would feel, just as we
have agreed that we would not be eliciting that sort of
testimony, that kind of concern that were at least, at one
time, agreed by WSREC, should certainly go both ways.
And, if for some reason, the request is
allowed, then, obviously, the Agency would have every
Sally A. Guardado, C.S.R. * (708) 479-6664
2463
right to Cross-examine Mr. Cobb-- I'm sorry, to pose
Redirect on exactly the subject matter that is going to be
raised.
And I think that's exactly what we have
been -- that's exactly the relief that has been sought by
WSREC that we would be prevented against.
HEARING OFFICER WALLACE: All right.
MR. DIMOND: Mr. Hearing Officer, if I could just
say two things.
One, Mr. Kim anticipates, I think
incorrectly, about the questions we intend to ask.
I don't think -- In fact, I know that we
do not intend to ask questions that will get into the area
that I think Mr. Kim was describing, as best as I
understand it.
Number, two, if we're not allowed to ask
them now, we will, I think call Mr. Cobb as our first
rebuttal witness this afternoon, and we'll go into it
then. Albeit that it will only take five to fifteen
minutes, I think.
HEARING OFFICER WALLACE: All right.
I was going to suggest this, that I would
Sally A. Guardado, C.S.R. * (708) 479-6664
2464
overrule the objection, that you can go beyond the scope.
But I was going to anticipate that we
would just turn around and call him as a rebuttal witness,
as soon as your done with your Redirect, or we can just
wait until this afternoon.
MR. MERRIMAN: It's now out of order with --
HEARING OFFICER WALLACE: I understand that. And
that's only to accommodate his schedule. Otherwise, he
can come back tomorrow as a rebuttal witness or this
afternoon, if necessary.
MR. KIM: Again, because the Agency has attempted to
abide by its previous statement that it would not seek to
elicit any testimony on this subject, we have not
discussed this in any kind of detail with Mr. Cobb and we
feel it would be inappropriate to allow that kind of
questioning to go on right now.
Certainly, if our case in chief wraps up
early this afternoon and if they would like to call him as
their first rebuttal witness this afternoon, that would be
their right.
But, because, again, we feel the document
is privileged, the contents are privileged and because we
Sally A. Guardado, C.S.R. * (708) 479-6664
2465
have not discussed this matter with Mr. Cobb in the form
of testimony that would be elicited, we feel -- we think
it would be prejudice upon us to have that kind of
testimony right now.
HEARING OFFICER WALLACE: Okay. But, in any event,
Mr. Cobb is going to remain here today and tomorrow, if
necessary.
I don't like getting out of order either.
So, he's -- You know, you're committing
to keeping him around.
MR. KIM: That's exactly what we're doing.
MR. DIMOND: Mr. Hearing Officer, if I could just
say.
Mr. Kim is anticipating ahead with what
our questions are going to be.
I think that, essentially, the substance
of his objection anticipates our questions incorrectly.
And, moreover, as Mr. Singer points out
to me, the idea that they haven't talked to Mr. Cobb or,
frankly, a number of their other witnesses about what has
been marked as Exhibit 120, the Mathur memorandum, I think
is not borne out by the fact that they have made a filing
Sally A. Guardado, C.S.R. * (708) 479-6664
2466
with the Board which contains numerous affidavits, one of
which, I believe, is Mr. Cobb's, indicating something in
regard to the Mathur memorandum.
I find it hard to believe that they would
have simply left this affidavit on Mr. Cobb's desk. Not
explained anything about it to him. And just, sort of,
with a note that said "sign this and send it back to us."
I've got to believe that there is some --
you know, there was some explanation there.
HEARING OFFICER WALLACE: You know, I agree that
there -- I don't like getting out of order to a certain
extent. It would be more efficient if we were to go
ahead.
If you object, I will uphold the
objection.
And you are not allowed to go beyond the
scope of the Direct.
In other words, we can finish up with
Mr. Cobb and, then, depending on his schedule, he's going
to have to stay around here.
Or, else, if you want to withdraw your
objection and let them go through this outside the scope,
Sally A. Guardado, C.S.R. * (708) 479-6664
2467
now.
MR. KIM: Could I take a moment, right now?
(Whereupon, a discussion was
held between the Agency attorneys.)
MR. DIMOND: Mr. Hearing Officer, I didn't want to
speak while the Agency attorneys were conferring and not
have them be able to hear me.
In fact, we don't intend to ask any
questions about the document itself.
What we do intend to ask about, is the
timing of certain meetings that we understand Mr. Cobb may
have been involved in on or about February 23, 1995.
We don't intend to -- I don't intend to
have him identify the document. I don't intend to ask him
any questions about the content of the document or
anything that's written therein.
Just to clarify for the Agency in terms
of the questions that we -- the general scope of the
questions we intend to ask. That's it.
HEARING OFFICER WALLACE: Okay. And if you keep in
mind that if you do bring out questions, we are going to
get real confused on Redirect -- not confused, but that
Sally A. Guardado, C.S.R. * (708) 479-6664
2468
will raise additional questions on Redirect, if you're
prepared for that.
MR. DIMOND: I have no problem with that.
MR. KIM: Mr. Hearing Officer, I think that what
Mr. Dimond has just elaborated on is definitely something
that we have not discussed previously with Mr. Cobb.
If nothing else, could you allow a ten,
fifteen minute recess, so that we could discuss this
briefly with Mr. Cobb before this line of questioning
takes place?
And, if that's the case, then we would be
able to take him out of order and we would be able to
conclude with Mr. Cobb this morning.
HEARING OFFICER WALLACE: Do you object to that?
MR. DIMOND: It's a little strange. But, that's
okay.
HEARING OFFICER WALLACE: Your request to go beyond
the scope is a little strange, too, for that matter.
MR. DIMOND: I guess under the circumstances, I
don't think so.
MR. MERRIMAN: And under the circumstances, we don't
think a request for recess is a little strange in itself.
Sally A. Guardado, C.S.R. * (708) 479-6664
2469
HEARING OFFICER WALLACE: Like I said, we could do
it normally and bring him back. So, I don't know which is
more efficient.
MR. KIM: I appreciate your offer and, again, what,
I guess, I'm trying to do is reach a compromise. So, if
we take a small break now, we won't have to worry about
Mr. Cobb being brought back this afternoon or tomorrow.
We would be able to allow the questions
that WSREC would like to ask of him this morning.
If I could just ask for ten or fifteen
minutes before them?
MR. DIMOND: That's acceptable to us.
HEARING OFFICER WALLACE: Let's take a ten minute
break then.
(Whereupon, a short recess was
had.)
HEARING OFFICER WALLACE: All right. Back on the
record.
In the interest of trying to save some
time, Mr. Dimond, you may go ahead and ask questions that
are beyond the scope of the Direct in as much as Mr. Cobb
could be re-called for rebuttal purposes.
Sally A. Guardado, C.S.R. * (708) 479-6664
2470
MR. KIM: I'm sorry. I would just like to note, and
I assume this has been overruled, but I would like to note
for the record our objection, simply that this line of
questioning we feel is outside the scope of our case in
chief, and, therefore, will be irrelevant and
objectionable.
HEARING OFFICER WALLACE: Your objection is noted.
And, like I said, hopefully to try to shorten this up,
it's overruled.
BY MR. DIMOND:
Q. Mr. Cobb, do you recall having a meeting --
Strike that.
Did you have a meeting involving
representatives of the Bureau of Land on February 23,
1995, that involved discussion of the WSREC applications?
A. No.
Q. Did you ever give a different answer to that
question?
A. No.
Q. Do you recall being deposed in the case?
A. Yes.
Q. And at one of those depositions, did you --
Sally A. Guardado, C.S.R. * (708) 479-6664
2471
were these questions asked and did you give these answers
-- and I'm at page I believe I'll start at 220, line
number 8.
"QUESTION: What did you know about
the Land permitting decision?
"ANSWER: I don't have a specific
recollection. I know there was a meeting
sometime prior to the February 27th
denial, in which various issues were
discussed between Air and Land of their
considerations.
"QUESTION: Who was at that meeting?
"ANSWER: I can't recall
specifically who attended that meeting.
"QUESTION: Can you recall generally
who attended?
"ANSWER: You know, people that
could have attended, I guess would be Ron
Harmon, Ted Dragovich -- I'm not sure who
else.
"QUESTION: Were you there?
"ANSWER: Yes.
Sally A. Guardado, C.S.R. * (708) 479-6664
2472
"QUESTION: Was Mr. Romaine there?
"ANSWER: I believe he was, but I
can't remember specifically.
"QUESTION: Was Mr. Desai there?
"ANSWER: I believe he was.
"QUESTION: Anyone else that might
have been there that you recall?
"ANSWER: No.
"QUESTION: Do you know
approximately when this meeting was held?
You said it was before the February 27th
denial?
"ANSWER: I believe it was
February 23rd."
Were those questions and did you give
those answers at your deposition?
A. I don't -- The meeting was prior to
February 23rd.
HEARING OFFICER WALLACE: The pending question is
did you -- were you asked and did you give those answers
at your deposition?
THE WITNESS: I don't recall.
Sally A. Guardado, C.S.R. * (708) 479-6664
2473
MR. DIMOND: No further questions.
HEARING OFFICER WALLACE: All right. Miss Kroack?
REDIRECT EXAMINATION
BY MS. KROACK:
Q. Mr. Cobb, could you look at Petitioner's
Exhibit Number 8 for a moment?
HEARING OFFICER WALLACE: It might be helpful if you
would do your Redirect of Mr. Cobb and, then, if you have
any additional questions on -- go into that separately.
MS. KROACK: Okay. This is Redirect.
HEARING OFFICER WALLACE: All right.
BY MS. KROACK:
Q. Could you look at the last page of that
document, the last line?
A. Which page?
MR. DIMOND: Which page?
BY MS. KROACK:
Q. Petitioner's Exhibit 8, the last page of the
February 27th, 1995 denial. Below Don Sutton's signature
block.
A. Yes.
Q. Can you explain to me why that file code is
Sally A. Guardado, C.S.R. * (708) 479-6664
2474
different than the one that appears on Respondent's
Exhibit 6?
A. These two documents were created at different
periods of time.
Petitioner's Exhibit 8 was produced at a
time when I was utilizing Microsoft WordPerfect -- I'm
sorry. Microsoft Word. And I was utilizing a different
means of naming files than what has been listed as
Respondent's Exhibit 6.
BY MS. KROACK:
Q. Okay. Looking at this Petitioner's Exhibit 8,
the numbers 022495 appear. Is that your effort to
indicate the date this document was initialized?
A. Yes, it is.
Q. At the time you provided your earlier sworn
testimony, testimony concerning Petitioner's Exhibit 39,
and that's the one in the file folder in front of you, was
it your belief at the time that you were unsure when that
document was created?
MR. DIMOND: Objection. His testimony speaks for
itself. It's also hearsay.
HEARING OFFICER WALLACE: Overruled.
Sally A. Guardado, C.S.R. * (708) 479-6664
2475
THE WITNESS: Yes, I believe I initially testified I
did not know when this document was created.
BY MS. KROACK:
Q. And are you now sure of the date you created
that document?
A. Yes, I am.
Q. And that date is?
A. Is 166th day of 1995.
Q. Is that approximately June 15th, 1995?
A. Yes.
MS. KROACK: I'm done with Redirect.
MR. KIM: Mr. Wallace, if you might allow. I just
have one or two questions to ask in response to the
rebuttal testimony.
HEARING OFFICER WALLACE: All right.
REDIRECT EXAMINATION
BY MR. KIM:
Q. Mr. Cobb, during rebuttal testimony a portion
of your deposition transcript was read to you, including
the line -- and this is out of your transcript -- page
221, lines beginning on line 8:
"QUESTION: Do you know
Sally A. Guardado, C.S.R. * (708) 479-6664
2476
approximately when this meeting was held?
You said it was before the February 27th
denial?
"ANSWER: I believe it was
February 23rd."
Was that your recollection at the time of
your deposition?
A. Yes, I believe it was.
Q. And is that your recollection now?
A No, it is not.
Q. What is your recollection now as to the date of
this meeting?
A. It was February 22nd.
MR. KIM: Thank you. Nothing further.
HEARING OFFICER WALLACE: Mr. Dimond?
MR. DIMOND: We don't have any further questions.
HEARING OFFICER WALLACE: Mr. Cobb, you can step
down.
(The witness was excused.)
MR. KIM: So that we are clear, Mr. Cobb is able to
return to Springfield?
HEARING OFFICER WALLACE: Ms. Angelo, do you have
Sally A. Guardado, C.S.R. * (708) 479-6664
2477
any further need to call Mr. Cobb?
MR. DIMOND: Not that we know of.
MS. ANGELO: Not at this time.
MR. KIM: We are now going to send him back south.
MR. DIMOND: Happy trails.
MS. KROACK: Thank you.
HEARING OFFICER WALLACE: Next witness?
(The witness was previously sworn.)
HEARING OFFICER WALLACE: All right. Miss Kroack?
MS. KROACK: Mr. Romaine --
HEARING OFFICER WALLACE: I'm sorry.
Mr. Romaine, having previously testified
in this matter, please consider yourself still under oath.
THE WITNESS: I do. Thank you.
CHRISTOPHER P. ROMAINE
called as a witness, having been first duly sworn, was
examined and testified as follows:
DIRECT EXAMINATION
BY MS. KROACK:
Q. Can you state your name again for the record?
A. Christopher Pelton Romaine.
Q. What is your current job title at the Illinois
Sally A. Guardado, C.S.R. * (708) 479-6664
2478
EPA?
A. I'm the Manager of the New Source Review Unit
in the Air Permit Section.
Q. And how long have you held that position?
A. Over twelve years.
MS. KROACK: Mr. Hearing Officer, at this time we
would like to offer Mr. Romaine as an expert in the areas
of New Source Review, including LAER, emission offsets,
and BACT determinations, based on his previous testimony
and our response to WSREC's interrogatories.
MS. ANGELO: May I ask some questions of Mr. Romaine
on voir dire, before we proceed in that fashion?
HEARING OFFICER WALLACE: Yes, you may.
VOIR DIRE
BY MS. ANGELO:
Q. Mr. Romaine, we've met on several occasions
prior to this matter for depositions and I want to refer
you to the last day of deposition which encompassed your
expert deposition.
Were you asked and did you tell us at
that time, with respect to any opinions that you might
have to offer with respect to the emission offsets issued,
Sally A. Guardado, C.S.R. * (708) 479-6664
2479
that you had not completed your review of that issue at
that time?
A. I don't recall the specific question you're
referring to.
Q. I believe you were asked what opinion you had
formed regarding the documentation for emission offsets
that were submitted by WSREC and I believe you responded
that you hadn't completed your review?
MR. KIM: Mr. Hearing Officer, could we have a
citation to the transcript.
MS. ANGELO: Well, I'm not trying to impeach him,
I'm trying to refresh his recollection. Page 269.
MR. KIM: Thank you.
THE WITNESS: Yes, I do.
BY MS. ANGELO:
Q. And did you also tell me at that time that you
did not have much recall for what was done prior to the
February denial on that point?
A. Yes, I did.
Q. Were you also asked with respect to any
opinions you might have formed with regard to BACT, and --
Strike that. Let me start again.
Sally A. Guardado, C.S.R. * (708) 479-6664
2480
Did you also tell us, at that time, that
with regard to any opinions that you might form with
regard to BACT, that you had not finished forming your
opinions at that time?
A. Yes, I had.
Q. Didn't you also tell us that in connection with
forming those opinions you would like to review articles
that might be -- might have been collected by Mr. --
excuse me, Dr. John Reed?
A. I don't specifically recall. It seems
reasonable that I said that.
Q. And you indicated at that time that you hadn't
completed reviewing those articles at that time?
A. That's correct.
Q. You also, I believe, indicated that, in
connection with your review of that issue, you had or
would be reviewing materials submitted by WSREC in May of
1995, did you not?
A. I believe so, yes.
Q. And didn't you also tell us that you weren't
sure if you had reviewed those documents, articles, from
Dr. John Reed as of February 27th, 1995?
Sally A. Guardado, C.S.R. * (708) 479-6664
2481
A. I believe that's correct.
Q. And that, indeed, if you had reviewed them, you
would have reviewed them quickly?
A. That's certainly correct.
Q. And didn't you also, in describing your views
as to the BACT issues, make reference to certain articles
that were contained in the May 1995 application?
A. I believe I did, yes.
Q. And with respect to the opinion that, or
opinions that you might be forming with regard to LAER,
were you not asked at your deposition about that matter --
about that issue and did you not reply that you were
providing the information as to points that you'd
identified so far to that point in time?
A. I believe so, yes.
Q. And didn't you also indicate that in forming
your expert opinion, you were relying or would rely on the
application that was filed by WSREC in May of 1995?
MR. KIM: As a matter of clarification, and I
understand the purposes of your reading this, but is there
another page citation you can give so as we can try to
follow along with your questions, or are you skipping
Sally A. Guardado, C.S.R. * (708) 479-6664
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around?
MS. ANGELO: I'm skipping around. Unless
Mr. Romaine tells me that he doesn't remember anything,
I'm afraid I have been skipping around, so I hadn't -- as
you can imagine, these issues were dealt with over a
number of pages.
MR. KIM: I understand.
BY MS. ANGELO:
Q. Do you remember my question?
A. No, I don't.
Q. With regard to your opinion with respect to
LAER, did you not also indicate at that time, that you
were relying on the WSREC application which had been
submitted in May of 1995?
A. In forming an expert opinion as to what LAER
might be, I think I've said that, yes.
MS. ANGELO: Thank you for the opportunity to
conduct voir dire, Mr. Hearing Officer.
I think that we would argue that
Mr. Romaine should not be allowed to testify as an expert
for several reasons.
The first being that he had not formed
Sally A. Guardado, C.S.R. * (708) 479-6664
2483
his opinions and was not prepared to provide his opinions
at the time that he gave his expert deposition, which was
at the very end of the discovery period in this case.
And, therefore, we have not had any opportunity to learn
his support of those opinions.
I would also suggest that to allow
Mr. Romaine to appear and support his expert opinions by
materials that have been barred from consideration, at the
Agency's request in this record is, it seems to me, at the
least, inconsistent with what's gone on so far in this
proceeding.
I would also note that, it is
troublesome, I believe, to provide an expert opinion from
Mr. Romaine at this time relying on May 1995 data,
articles he's read since, and so forth, when, at the time
of the decision itself, those articles apparently were
available and he hadn't read them and he was involved in
the decision.
So, in essence, he's being asked to
provide an expert opinion that, at the time, he did
whatever he did in February of 1994, he was correct, even
though he had not read the appropriate materials, reviewed
Sally A. Guardado, C.S.R. * (708) 479-6664
2484
the articles that he believes are relevant.
I think that's an improper basis for an
expert opinion.
So I would ask that he not be allowed to
provide expert testimony in this case.
MR. KIM: In response, initially, I would note that,
as I believe was borne out and, again, I wasn't able to
follow, and I understand that Percy -- Ms. Angelo's was
referring to the deposition transcript.
But, in my understanding, in most
situations when Mr. Romaine during depositions was asked
if he had an opinion, he stated that he had formed an
opinion. It was just that he was continuing to review
information.
I don't think that's at all inappropriate
for someone in his position to do and, in fact, I think it
would be unusual if a person would stop considering
further information as part of his job responsibilities.
As far as any kind of reliance that Mr.
Romaine may have upon documents that the Agency has taken
the position would be inappropriate for direct
consideration in reference to this case, we certainly
Sally A. Guardado, C.S.R. * (708) 479-6664
2485
wouldn't change our position there. However, it's also
our -- it's my understanding that as to a matter of
guidance, Supreme Court Rule 703 -- I'm sorry, Federal
Rule 703, Federal Rule 11 703, which has been adopted by
the Illinois Supreme Court in the case of Wilson versus
Clark, states that facts or data in the particular case
upon which an expert basis an opinion or inference may be
those received by or made known to the expert at or before
the hearing.
So, the time frame that they seek to
impose as being an inappropriate time at which he must
have stopped his consideration of any materials, would not
be applicable.
And that is not inconsistent with the
Agency's past position that, for example, the May 1995,
application is not relevant or germane to this case and
should not be considered.
MS. ANGELO: I would just indicate that I don't
think that the rule that you referred to is relevant here
where the issue in the case is the propriety of the
Agency's decision as of a particular date.
The situation we're faced with is that
Sally A. Guardado, C.S.R. * (708) 479-6664
2486
Mr. Romaine had not completed review of the materials in
the record as of that date.
He had not completed his review as of the
date of the deposition, a year later, even though
discovery had been filed indicating what Mr. Romaine's
opinions were.
And I certainly object to the idea that
people endeavor to keep reviewing these things all the way
up to the time of trial. You either have formed an
opinion and have reasons for it or you don't. But you
don't continually speak to determine new support for your
theory long after the fact. And, in this case, the fact
was February 27th, 1995.
HEARING OFFICER WALLACE: All right. Thank you.
EXAMINATION
BY HEARING OFFICER WALLACE:
Q. Firstly, Mr. Romaine -- if you have stated
this, I'm sorry -- what's your educational background?
A. I have a Bachelor of Science in Engineering and
a Bachelor of Arts in Art from Brown University.
Q. Brown University?
A. Brown University.
Sally A. Guardado, C.S.R. * (708) 479-6664
2487
I completed course work towards a Masters
in Environmental Engineering at Southern Illinois
University.
Q. And when were you degrees awarded?
A. 1973 and 1974.
Q. And you've been employed by the Environmental
Protection Agency beginning when?
A. June of 1976.
Q. And, briefly, if you could run through your
capacities at the Environmental Protection Agency?
A. I've always been employed by the Permit Section
in the Bureau of Air.
I started off as a Junior Analyst. I did
become Permit Analyst. I also got involved in Special
Projects and proceeded to become a Senior Analyst over
time.
Then I was designated as Manager of the
New Source Review Unit and have been functioning in that
position since, I believe, may of 1983.
As part of the New Source Review Unit, I
sort of had a twofold job. The first involved to take
programmatic responsibility for the various programs,
Sally A. Guardado, C.S.R. * (708) 479-6664
2488
giving review of new and modified sources. And in the New
Review making sure that we have the appropriate
regulations and infrastructure in place. And then, also,
to assist analysts in their review of individual permit
applications.
I have also been involved in a number of
special projects over the years for the Agency, including
extensive involvement in Agency rulemakings -- Agency
rulemakings before the Board.
Q. Do you have any publications under your
authorship?
A. I have published one paper. Yes.
Q. Have you attended any, for a lack of better
term, continuing education program since you became
manager of New Source Review Unit?
A. I take advantage of those opportunities when
they appear.
We have a connection to the U.S. EPA's
training program. Periodically U.S. EPA office workshops.
Yes.
Q. Do you attend professional or scientific
meetings? Seminars?
Sally A. Guardado, C.S.R. * (708) 479-6664
2489
A. I attend meetings and seminars as my schedule
allows that are organized by the Air and Waste Management
Association in the general Illinois vicinity.
Q. Have you ever served on panels for such
organizations?
A. I've successfully avoided that.
Q. And what's your experience with BACT,
generally?
A. I've been involved in the reviewing or assisted
in reviewing on a variety of PSD applications that have
been received.
Q. PSD?
A. Prevention of Significant Deterioration Rules
that have been received by the Agency. I've also been
involved in the previous municipal waste combustion
permits issued in Illinois.
By my recent count, we've processed about
50 PSD applications since I have been with the Agency.
Q. And all PSD applications involve BACT?
A. All PSD applications require determination of
Best Available Control Technology.
Q. All right. And what's your involvement with
Sally A. Guardado, C.S.R. * (708) 479-6664
2490
LAER?
A. Well, my involvement with LAER is much less
because we have not been receiving major projects subject
-- applications for major projects subject to Part 203.
But in discussions with applicants about those
requirements, I am required to be knowledgeable about the
LAER requirements and to assist them in explaining what
the Agency's expectations would be with regard to LAER or
LAER determinations.
Q. How did you acquire your knowledge in BACT and
LAER?
A. Primarily through on-the-job experience.
Obviously, as part of my job I also have to refer to
various documents, communications with U.S. EPA,
communications with consultants, permit applications, and
other Agency staff.
HEARING OFFICER WALLACE: Okay. Thank you.
MR. KIM: And I apologize, Mr. Hearing Officer. We
would have asked the questions, you had, if you would -- I
think we were attempting to save some time by avoiding
those questions, but we certainly would have asked those
questions, that you had gone through.
Sally A. Guardado, C.S.R. * (708) 479-6664
2491
HEARING OFFICER WALLACE: I understand that. That's
okay.
I'm going to allow Mr. Romaine to testify
as an expert witness. Although, I do believe that since
Petitioner's Exhibit Number 8 defines the denial points
and the date in time that the materials past February 27,
1995, his expertise must revolve around February 27, 1995.
MS. ANGELO: Mr. Hearing Officer, can we also ask
that to the extent Mr. Romaine relies on arguments or
material, that he was not prepared to provide for us at
his deposition, that he confine his support for his
opinions to the matters that we were able to explore at
his deposition?
HEARING OFFICER WALLACE: Mr. Merriman?
MR. MERRIMAN: I guess I just I'd like to -- I think
it's responsive to Ms. Angelo's concerns.
The Federal Rule of Evidence 703 changed
the need to use hypothetical questions and cited all the
basis for an expert opinion in advance and, in fact, it
allows an expert to render an opinion based upon materials
which may or may not be properly admissible themselves.
An expert can rely upon anything, as long
Sally A. Guardado, C.S.R. * (708) 479-6664
2492
as it is something that is reasonably relied upon a person
in that field.
And, I guess, in an area of inquiry
permissible for cross-examination is, what it was that was
relied upon and the reasonableness thereof.
And those are certainly under Federal
Rule 705.
Federal Rule of Evidence 705 states that
the expert may, in any event, be questioned about the
underlying facts or data under which he relied on
Cross-examination.
So, it's certainly a proper area of
inquiry under Cross-examination if counsel for Petitioner
believes that the formation of the opinion may or may not
have relied upon things that were proper areas, or in the
knowledge of the expert at the time of the February 27,
1995 denial. So I think --
MS. ANGELO: I think the point I was making was not
so much the issue of admissibility of the underlying
materials, as to litigation fairness and discovery
fairness in our opportunity to learn of the matters on
which he was relying.
Sally A. Guardado, C.S.R. * (708) 479-6664
2493
So, I don't think the citation
Mr. Merriman has given us dealings with that issue at all.
And that's the concern I raised.
If a year after the fact, Mr. Romaine,
who made and participated in the decision, still was not
able to tell us what the bases were for the denial and his
opinion that our application was insufficient, then I
don't know that it's appropriate for him to be able to
come up with reasons to support that opinion in the last
couple of days before he goes on the stand.
HEARING OFFICER WALLACE: Mr. Merriman?
MR. MERRIMAN: In response to that, again, Federal
Rule of Evidence 703, which was adopted by the Illinois
Supreme Court in Illinois for civil cases in the Wilson
versus Clark case -- I'm sorry, I don't have the citation
at hand -- but that states that the facts or data in the
particular case upon which an expert basis an opinion or
inference may be those perceived by or made known by to
the expert at or before the hearing.
It is perfectly proper for someone who
has disclosed an individual pursuant to discovery as an
expert, have the expert sitting here.
Sally A. Guardado, C.S.R. * (708) 479-6664
2494
Mr. Pierce, could have been cited as an
expert, for example, he could listen to Mr. Romaine's
testimony today and formulate an opinion, and be asked
that on rebuttal for his opinion. And he could rely upon
things that Mr. Romaine says today.
It's a perfectly permissible use of
expert witnesses so long as the other side has an
opportunity to cross-examine the expert as to the basis
and as to reasonableness of their reliance.
HEARING OFFICER WALLACE: In terms of -- I think we
are just going to have to see what develops because I
cannot tell if there are -- if there is anything that
Mr. Romaine may have relied on now that he didn't rely on
then, that he didn't disclose during his deposition or
during discovery.
Short of -- It seems to me, kind of an
odd situation in law where we are very limited by February
27, 1995. And if the material that Mr. Romaine is going
to testify all was developed after 1995, then his expert
opinion as to what occurred prior to February 27th, 1995,
would be somewhat limited, if not useable at all by the
Board. So, with that in mind, let's get started, I guess.
Sally A. Guardado, C.S.R. * (708) 479-6664
2495
Ms. Kroack?
DIRECT EXAMINATION (Continued)
BY MS. KROACK:
Q. Good morning, Mr. Romaine.
In your opinion, what is the regulatory
basis for requiring new municipal waste incinerators in
Illinois to demonstrate BACT, or Best Available Control
Technology for emissions of dioxin/furan and mercury?
MS. ANGELO: Objection. Legal conclusion.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Section 9.4 of Illinois' Environmental
Protection Act requires that new Municipal Waste
Combustors that burn more than 25 tons of waste per day,
have best available control technology for a number of
different pollutants. Those pollutants include dioxin/
furan and mercury.
BY MS. KROACK:
Q. Does WSREC's application indicate that the
proposed facility will burn at least 25 tons per day of
municipal waste?
A. Yes, it does.
Q. In your opinion, what is Best Available Control
Sally A. Guardado, C.S.R. * (708) 479-6664
2496
Technology under Section 9.4 of the the Act.
MS. ANGELO: Objection. Ambiguous.
I don't know whether she's asking for a
definition. If she's simply asking for what the Act says,
conceivably, she's asking for a legal conclusion.
And, further, and an additional matter,
and a reason for the ambiguity is, if she's asking for an
application of BACT for a particular source, I don't think
that's clear from the question.
So I think the question is ambiguous on
several counts.
HEARING OFFICER WALLACE: Would you care to be more
precise?
MS. KROACK: Sure.
BY MS. KROACK:
Q. What is your understanding of the definition of
BACT under Section 9.4, without regard to any specific
facilities?
MS. ANGELO: Legal conclusion.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: First of all, I'd clarify that BACT
from Section 9.4, is, in fact, a term that is defined in
Sally A. Guardado, C.S.R. * (708) 479-6664
2497
Section 9.4.
That definition states that BACT is the
maximum -- in general terms, the maximum emission
reduction for a pollutant, considering cost of
environmental and energy impacts.
It's an emission limitation. That
emission limitation is supposed to be set on a case by
case basis during the permitting of a proposed project.
Accordingly, it is an emission limitation that is going to
be set by the Agency.
BY MS. KROACK:
Q. In your understanding, what is the difference,
if any, between the definition of the BACT under Section
9.4 of the Illinois Environmental Protection Act and U.S.
EPA's definition of the BACT for the Federal Program for
Prevention of Significant Deterioration or PSD?
MS. ANGELO: Have you concluded?
MS. KROACK: Yes.
MS. ANGELO: Objection. Legal conclusion. I also
would point out that I believe the last answer purported
to ask for what the definition was provided in the
statute.
Sally A. Guardado, C.S.R. * (708) 479-6664
2498
Mr. Romaine went far beyond that to give
numerous interpretations. And I believe the answer should
be stricken as non-responsive, as the question apparently
was objectionable as being narrative. Calling for a
narrative.
And I think it confirms my early
objection that Miss Kroack was calling for a legal
conclusion.
So I would also move to strike the prior
answer.
HEARING OFFICER WALLACE: Objection is overruled.
And the answer will stand.
MS. KROACK: Do you remember the question?
HEARING OFFICER WALLACE: The objection to the
pending question is overruled.
Mr. Romaine?
THE WITNESS: Well, the two definitions are, in
fact, very similar.
The two major differences that I've noted
in the terms are, first of all, the definition of BACT
under Section 9.4 reflects emission limitation
determination by the Agency. Where the PSD definition of
Sally A. Guardado, C.S.R. * (708) 479-6664
2499
BACT refers to a determination made by U.S. EPA, in fact,
the Administrator of the U.S. EPA.
The other difference is that the
definition of BACT, under Section 9.4 of the Act, is
narrowly focused toward Municipal Waste Combustors.
Whereas, the definition of BACT under the PSD program is
more generally developed in terms of any type of
particular project.
MS. ANGELO: Mr. Hearing Officer, I'm going to also
move at this point to strike Mr. Romaine's responses.
Mr. Romaine was offered as an expert in
certain areas disclosed in the discovery responses.
He's being offered now as an expert,
apparently, as to legal interpretations. That's an area
in which he has not been offered and which I don't believe
he's demonstrated, in answer to your questions, that he
has any expertise.
And I think, this testimony is improper.
MR. KIM: I'm responding.
Again, Mr. Romaine has not provided any
legal conclusions. Mr. Romaine has provided his
understanding of the subject matter which has been
Sally A. Guardado, C.S.R. * (708) 479-6664
2500
questioned by Miss Kroack.
Furthermore, he is simply testifying as
to his day-to-day understanding and his application of the
regulations, and that is entire within the context of his
being called as an expert to testify in these areas.
MS. ANGELO: Mr. Hearing Officer, if I may just make
an additional point.
I have the Agency's expert discovery
response which gave the opinions on which Mr. Romaine
would be testifying.
They have nothing of this kind in there.
I mean, I can read it.
"Opinions and bases: As of
February 27th, WSREC had not satisfied its obligations
under 35 Illinois Administrative Code Part 203,
specifically...," a long list of sections "...have not
made an adequate showing..." --
HEARING OFFICER WALLACE: Well, Ms. Angelo. I'm
going to interrupt here.
Your objection is overruled. The answer
stands.
Please continue, Ms. Kroack.
Sally A. Guardado, C.S.R. * (708) 479-6664
2501
BY MS. KROACK:
Q. Mr. Romaine, I believe in front of you, you
have the document called the New Source Review Workshop
Manual. And it's marked as Respondent's Exhibit 5; is
that correct?
A. Yes, it is.
Q. Could you just identify that for us?
A. Well, this is, as you identified, the U.S.
EPA's New Source Review Workshop Manual for the prevention
of significant deterioration in non-attainment area
permitting. It's dated October 1990. And it's indicated
to be a draft document.
Q. Did you provide this document with your
deposition materials?
MS. ANGELO: Objection. Ambiguous.
I don't know what deposition materials
are.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: I supplied this to the legal staff of
the Agency and they, in fact, included it in the
supplementary material filed at the time of my deposition.
BY MS. KROACK:
Sally A. Guardado, C.S.R. * (708) 479-6664
2502
Q. Thank you.
How do you use this document in your
duties as Manager of the New Source Review Unit and as a
member of the Bureau of Air Permit Section?
MS. ANGELO: Objection. Vague.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Well, I look at this document as the
authoritative statement of U.S. EPA's guidance for New
Source Review permitting.
And that's the first place I look if
there is an issue that I have to address in permitting or
if somebody looks for guidance on an issue.
I would look, first, here, to see if that
topic has already been considered by U.S. EPA and have
gotten their belief how it is appropriate to be addressed.
BY MS. KROACK:
Q. Do you follow any updates that might be issued
by U.S. EPA on the matters that you just referred to?
MS. ANGELO: Objection. Ambiguous.
I don't know what "following" and
"update" means. I don't know what an "update" means.
HEARING OFFICER WALLACE: Would you care to be more
Sally A. Guardado, C.S.R. * (708) 479-6664
2503
precise?
BY MS. KROACK:
Q. Mr. Romaine, are you generally aware of and do
you review any further additional guidance that U.S. EPA
might issue, that impact the statements that they set
forth in this New Source Review Workshop Manual?
A. As a general matter. Yes.
If there is further guidance or policy
interpretation by U.S. EPA or some specific case where
they are distributing the letter of decision that they had
made, I would review it and try to follow it in my mind
for general knowledge and put it away in a file folder for
future reference, if, in fact, it constricted or
supplemented that manual.
MS. ANGELO: Objection. And move to strike.
That answer had nothing to do with
updates to this manual.
HEARING OFFICER WALLACE: Overruled.
The answer stands.
BY MS. KROACK:
Q. Mr. Romaine, in your understanding, is U.S.
EPA's Top Down BACT process included in this document?
Sally A. Guardado, C.S.R. * (708) 479-6664
2504
MS. ANGELO: Objection. Ambiguous.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Yes, it is. It's specifically
described in this document.
BY MS. KROACK:
Q. Do you rely on this New Source Review Workshop
Manual in permitting for major new sources?
MS. ANGELO: Objection. Ambiguous. "Rely."
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Yes, I do. As I said, if there are
questions I need guidance on, this is one of the first
places I would look to get matters resolved.
If I have forgotten or want to be
refreshed on how U.S. EPA approaches a specific term, what
the different steps of the Top-Down process, those sorts
of issues, I would turn to this document.
BY MS. KROACK:
Q. In your understanding, is this document
commonly relied upon by people who conduct permit reviews
for BACT and LAER?
MS. ANGELO: Objection. This is, first of all, a
foundation question, but Ms. Kroack, I believe, is leading
Sally A. Guardado, C.S.R. * (708) 479-6664
2505
her expert. I don't think that's necessary here.
HEARING OFFICER WALLACE: Sustained as to leading
questions.
BY MS. KROACK:
Q. Did you use this document in reviewing WSREC's
permit application denied on February 27, 1995 by the
Bureau of Air?
MS. ANGELO: Objection. ambiguous. "Use."
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: I'm not sure whether I specifically
used this document. I certainly have relied on this
document and I previously looked at it in the review of
WSREC's application.
MS. ANGELO: Mr. Hearing Officer, could I ask that
that answer be read wack?
HEARING OFFICER WALLACE: Would you read the answer
back, please?
(Whereupon, the record was read.)
HEARING OFFICER WALLACE: Next question, please?
BY MS. KROACK:
Q. In your understanding, what does the Top-Down
BACT guidance provide?
Sally A. Guardado, C.S.R. * (708) 479-6664
2506
A. The Top-Down BACT guidance establishes a
procedure for going through a BACT evaluation. It sets
forth a series of steps to assure that BACT evaluations
are conducted in a standardized fashion. That they're
done systematically and the goal of that process was to
generally improve the consistency and quality of those
determinations.
Q. Can you describe, briefly, what the steps are
in the Top-Down BACT process?
MS. ANGELO: Calls for a narrative.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Well, the Top-Down process, like I
said, was a systematic approach to making a BACT
determination.
There are five steps in that process.
The first step is identifying possible control
alternatives for a particular project. And this is sort
of like a test. Whatever is out there that can be
conceivably applied to a particular project.
Step two, then, is to review those
assembled control alternatives and to see if any of those
can be limited because they're not technically feasible.
Sally A. Guardado, C.S.R. * (708) 479-6664
2507
If one of those alternatives is not technically feasible,
it doesn't have to be further evaluated.
Step 3 is then to rank the remaining
control technologies with remaining alternatives as to
their effectiveness.
Actually, first to determine their
effectiveness and then to rank them in terms of their
effectiveness. Putting the most effective technology at
the top of the list, then the technology that has the
lowest amount of emissions. And at the very bottom of the
list you put the least effective technology, and that's
the technology which allows the greatest level of
emissions.
Step four is then to evaluate those
technologies as necessary, and it's at that stage you
consider the economic environmental and energy impacts of
the projects.
And the approach that is used: You go to
the top of the list. If the applicant is willing to
accept that, then that is selected as BACT. Otherwise,
you would proceed down that list until you come to a
technology or alternative that you cannot eliminate and
Sally A. Guardado, C.S.R. * (708) 479-6664
2508
that is what is established BACT.
And that is, in fact, the fifth stage, is
selecting that technology that, in fact, cannot be
eliminated.
BY MS. KROACK:
Q. In your understanding, does the use of this
Top-Down process alter the determination of what
constitutes BACT?
MS. ANGELO: Objection. Ambiguous.
But I also am not sure I understand the
relevance of Mr. Romaine's discussion of a draft Federal
Guidance document.
HEARING OFFICER WALLACE: This is their case, Ms.
Angelo.
MS. ANGELO: I still -- Relevance is still a matter
that applies to their case or my case.
This is a situation where they have
several times told us that their case does -- their denial
did not involve any federal issues.
They have moved to dismiss our appeal
before the EAB because it did not involve any federal
issues. And what we're getting now is the discussion of
Sally A. Guardado, C.S.R. * (708) 479-6664
2509
federal guidance. Draft federal guidance.
HEARING OFFICER WALLACE: All right. Your objection
is noted and overruled.
Please continue?
BY MS. KROACK:
Q. Do you remember the question, Mr. Romaine?
A. No.
Q. I will restate it.
In your understanding, does the Top-Down
BACT process alter the determination of what constitutes
BACT?
A. It doesn't substantively change what has to --
the determination of what is BACT.
As a technique or a procedure, it
certainly improves the process by which BACT is
determined. And by making that improvement to the
process, I think it improves consistency and results in
better BACT determinations, but it does not change the
criteria for what is BACT in a particular situation.
Q. Mr. Romaine, do you know how widely used this
New Source Review Workshop Manual is?
MS. ANGELO: Objection. "Widely used."
Sally A. Guardado, C.S.R. * (708) 479-6664
2510
First of all, it's irrelevant. It's also
ambiguous.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: I believe this document is widely
used. U.S. EPA certainly refers to it, when we ask
questions. And they point to it, when they're asking
questions of us. Consultants call me and ask questions
about it. When I go to conferences, people make
references to this document.
BY MS. KROACK:
Q. To your knowledge, does WSREC's application
indicate that it would use U.S. EPA's Top-Down process to
demonstrate what is BACT for a proposed facility?
MS. ANGELO: Objection.
Outside the scope of the testimony as
disclosed interrogatories. Outside the scope of the
testimony that was discussed by Mr. Romaine in his
deposition.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Yes. The application does say that
it's -- WSREC would be demonstrating what is BACT using
the Top-Down process.
Sally A. Guardado, C.S.R. * (708) 479-6664
2511
BY MS. KROACK:
Q. In your understanding, does U.S. EPA's Top-Down
BACT process indicate that cost effectiveness should be
used for comparison of the cost impact of different
control alternatives?
MS. ANGELO: That's definitely vague.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Let me -- If you're looking at the
Top-Down process, when you get to the step four of the
process, when you are comparing different alternatives,
U.S. EPA indicates that cost effectiveness is the way that
different control alternatives should be compared.
BY MS. KROACK:
Q. What is your understanding of the phrase, cost
effectiveness, as it is used in this Top-Down BACT
Guidance?
A. Well, cost effectiveness is an economic measure
of the performance of different control alternative. It
relates the cost of that alternative, how much is about to
be expended to apply it, to the amount of emission
reductions that would be achieved.
The simplest way to explain it is by an
Sally A. Guardado, C.S.R. * (708) 479-6664
2512
example.
If a certain control measure, for
example, would take $10,000 a year out-of-pocket to apply
it, that control measure would result in 5 tons of
emissions no longer being emitted to the atmosphere, then
the control effectiveness of that particular measure would
be quoted as $2,000 per ton.
Q. In your understanding, would a BACT limitation
be more stringent than an applicable Federal New Source
Performance Standard?
MS. ANGELO: Objection. Foundation. Leading.
Legal conclusion.
HEARING OFFICER WALLACE: Sustained as to leading.
BY MS. KROACK:
Q. Mr. Romaine, in your understanding, which is
more stringent, a BACT limitation or an applicable Federal
New Source Performance Standard --
MS. ANGELO: Still leading.
I'm sorry.
BY MS. KROACK.
Q. -- or NSPS?
MS. ANGELO: It's still leading.
Sally A. Guardado, C.S.R. * (708) 479-6664
2513
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: A BACT limitation can be more
stringent than an applicable New Source Performance
Standard. It cannot be less stringent than a New Source
Performance Standard.
BY MS. KROACK:
Q. Can you give my an example of a situation where
a BACT is more stringent than an applicable NSPS or New
Source Performance Standard.
MS. ANGELO: Objection. Relevance.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Yes, I can.
The most obvious example for this
particular situation, is the particulate matter emission
limit that would be proposed to achieve by WSREC as
compared to the applicable New Source Performances
Standard.
I believe that the New Source Performance
Standard that U.S. EPA adopted sets a particulate matter
emission limit of .01 grains per standard cubic feet. Per
BACT, WSREC proposed to comply with an emission limit of
.007 grains per dry standard cubic feet.
Sally A. Guardado, C.S.R. * (708) 479-6664
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BY MS. KROACK:
Q. I would like you to look at Petitioner's
Exhibit 8 for a moment. I believe it's on the table
somewhere in front of you.
Did you assist in the drafting of
Petitioner's Exhibit 8?
A. Yes, I did.
Q. What is your understanding of the Agency's
February 27, 1995 denial point with respect to WSREC's
demonstration of BACT for dioxin/furans and mercury?
MS. ANGELO: I'm going to object to that question
because I'm not sure whether she's calling for Agency
intent as to this point, as to which, I don't think
testimony is appropriate. The document speaks for itself.
If she's asking for some kind of opinion,
expert opinion of a point, I don't -- I think her question
is unclear. And I have no idea what kind of answer she's
eliciting.
So, I guess my question is -- my
objection is either ambiguity or the fact that she's
calling for an interpretation of the document and Agency
intent in a situation where the document should speak for
Sally A. Guardado, C.S.R. * (708) 479-6664
2515
itself.
MS. KROACK: I'm not asking for Mr. Romaine's expert
opinion. I'm just asking what his understanding is of
that denial point, as one of the drafters of that denial
point.
MS. ANGELO: I'm not sure that's relevant.
If Mr. Romaine's intent or understanding
were to differ from the point itself, that would not
change what the denial point is.
And, I believe, -- Let me point out, that
one of the requests for admission was that the permit
denial sets forth each and every reason that the Air
permit was denied by the Agency as required by the rule.
That was request for admission number ten, which has now
been admitted.
So eliciting further information of what
Mr. Romaine believed he meant by something, I think, is
not only irrelevant, but it's beyond the scope of what we
ought to be considering now.
HEARING OFFICER WALLACE: Are you asking for his
intent?
MS. KROACK: I'm just asking for him to describe the
Sally A. Guardado, C.S.R. * (708) 479-6664
2516
denial point.
Really, their whole case has been that
our denial points are faulty. I want him to describe it
and I want to ask him some questions about it.
HEARING OFFICER WALLACE: All right. As redefined,
please answer the question, Mr. Romaine?
THE WITNESS: Well, in terms of my understanding, I
refer to the document itself to refresh my recollection
exactly what our concerns for.
The first point of the denial, overall,
the issue was that the application didn't include enough
information to determine the compliance of the Act and the
Regulations.
Then, with regard to Best Available
Control Technology, expressed specific concerns that there
wasn't enough information to determine what was Best
Available Control Technology for the project as it was a
Municipal Waste Combustor subject to Best Available
Control Technology under Section 9.4 of the Act.
The two specific issues that we
identified under that denial point were, the application
didn't adequately evaluate other types of carbon
Sally A. Guardado, C.S.R. * (708) 479-6664
2517
absorption technologies which might be more effective for
purposes of control of dioxin, furans and mercury.
And the other denial point with regard to
BACT was that the emission test data submitted from other
Municipal Waste Combustors show levels of dioxin/furans
that were below the proposed New Source Performance
Standards, and we didn't believe that the application
adequately addressed why those tests shouldn't be followed
as the basis for BACT for dioxin and furans. It set a
limit that was lower than the proposed NSPS.
BY MS. KROACK:
Q. Can you describe what an activated carbon
control system is?
MS. ANGELO: Objection. That's not within the scope
of the expertise that he described in his response to
questioning.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Yes. I can.
Activated carbon is used in a lot of
environmental control applications. In terms of this
particular application, activated carbon is used to
selectively remove a contaminant from the exhaust stream
Sally A. Guardado, C.S.R. * (708) 479-6664
2518
by exposing the exhaust stream to an activated carbon or
passing the exhaust stream to activate the carbon.
Contaminants with some degree of effective, are then
transferred to the carbon and removed from the gas stream,
resulting in a cleaner gas stream than being discharged to
the atmosphere.
BY MS. KROACK:
Q. When you say gas stream, is another term for
that flue gas stream?
A. Another term is flue gas stream. Exhaust
stream. We have a number of terms that we sort of try to
use to describe emissions in a process that -- prior to
discharge to the atmosphere and at various points in the
control system.
Q. Are you aware of whether any fixed bed carbon
systems are used in Europe to control the emissions of
dioxin, furans, and mercury?
MS. ANGELO: Objection. Foundation.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Yes. The application indicates that
fixed bed carbon systems are being used in Europe and
Municipal Waste Combustors.
Sally A. Guardado, C.S.R. * (708) 479-6664
2519
BY MS. KROACK:
Q. In your opinion, does the existence of these
systems in Europe, to control the emissions of dioxin,
furan and mercury, indicate that these systems are
technically feasible, as that term is used in U.S. EPA's
Top-Down BACT guidance?
MS. ANGELO: Objection. Foundation. Also, vague.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Yes, it does. The most straight
forward evidence of technical feasibility is whether a
particular technology is being used in a particular type
of source.
If fixed bed carbon systems are being
used on Municipal Waste Combustors somewhere, they're used
on a number of them over there, then they are technically
feasible.
BY MS. KROACK:
Q. And in Europe, those systems are being used on
Municipal Waste Combustors, specifically?
A. To my --
MR. MERRIMAN: Objection. Foundation.
HEARING OFFICER WALLACE: Overruled.
Sally A. Guardado, C.S.R. * (708) 479-6664
2520
THE WITNESS: Based on the information in the
application, they are. Yes.
BY MS. KROACK:
Q. And to your knowledge, based on your review of
WSREC's permit application, after identifying the
existence of these fixed bed carbon systems, did WSREC
continue its evaluation of fixed bed activated carbon
systems and if they were technically feasible?
MS. ANGELO: Objection.
Apparently we're just being asked or
Mr. Romaine is being asked to discuss the application
itself and what was contained in the application.
That is in the document. It's for
argument. I don't know that it's a matter of expert
debate.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Can you please repeat the question,
Miss Kroack?
MS. KROACK: Sure.
BY MS. KROACK:
Q. In your understanding of your review of WSREC's
permit application, after identifying the existence of
Sally A. Guardado, C.S.R. * (708) 479-6664
2521
these fixed bed carbon systems, did WSREC continue its
evaluation of those systems as if they were technically
feasible, as that term is used in U.S. EPA's Top-Down BACT
guidance?
A. Yes, I believe they did.
In particular, they then obtained a quote
for installation of a fixed bed carbon system on the WSREC
facility.
The ability to obtain a quote for a
particular type of control technology is a continuation of
the Top-Down BACT procedure, as it is assembling
information to allow comparison of different alternatives.
It is also another indication that that technology is
feasible.
MS. ANGELO: I'm going to object and move to strike
as being an excellent example of an area where Mr. Romaine
is going beyond the support for his opinions which he was
able to offer at the deposition in this case.
HEARING OFFICER WALLACE: Overruled.
The answer stands.
BY MS. KROACK:
Q. After identifying technically feasible control
Sally A. Guardado, C.S.R. * (708) 479-6664
2522
technologies, in your understanding, what is the next step
in U.S. EPA's Top-Down BACT process?
A. The next step in U.S. EPA's Top-Down BACT
process is to determine the effectiveness of those
different feasible control alternatives and then to rank
those alternatives in order of descending effectiveness.
Q. In your understanding of WSREC's permit
application, did they take that next step to the Top-Down
BACT process?
MS. ANGELO: Objection. The document is going to
speak for itself and the Board is going to make the
decision.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: I don't believe they did. I think
they skipped a step and simply went to the evaluation of
cost impacts. And, even there, they didn't provide the
cost effectiveness, they just gave data on the overall
cost of applying the technology.
BY MS. KROACK:
Q. In your understanding of WSREC's permit
application, did WSREC propose to meet the emission
limitation for dioxin/furans in the proposed NSPS for
Sally A. Guardado, C.S.R. * (708) 479-6664
2523
Municipal Waste Combustors?
A. Yes, it did.
Q. Why do you believe a lower dioxin and furan
emission limitation might be achieved, than the one
proposed by WSREC?
A Well, I don't know if I believe that first of
all.
But, in terms of the issue that was
before the Agency as of February 27th, we were trying to
evaluate whether, in fact, what was the Best Available
Control Technology for dioxin/furan emissions. And the
application included a number of tests on dioxin and furan
emissions. The application made -- And these tests showed
emission levels that were well below the emission levels
of the U.S. EPA's proposed NSPS.
One of the issues that we had to resolve
or had to be resolved in this application was, should BACT
be set at the level that U.S. EPA proposes or set at the
level that is being achieved by these other facilities
which is supposed -- much more lower -- much lower, based
on the test data provided.
Q. When you refer to those facilities for which
Sally A. Guardado, C.S.R. * (708) 479-6664
2524
test data was included in WSREC's permit application, can
you tell me which facilities you're referring to?
A. Yes, I can.
The facility of the most interest, just
not necessarily how you relate it to back BACT, but in
terms of what is the precedent for this facility, is
SEMASS.
Energy Answers was also involved in
SEMASS. It is also using Energy Answers' shred and burn
technology. So we do look at this as the -- look at the
SEMASS facility as the prototype or the starting point for
what the WSREC facility was, certainly -- should be
expected to achieve.
And data was provided for the SEMASS
facility showing dioxin/furan emissions that were much
lower than the U.S. EPA proposed NSPS.
There was also data for some other RDF
facilities. Mid Connecticut facility shows much lower
numbers.
There was data for the Greater Detroit
facility that wasn't quite as good but, again, was lower
than the NSPS. There's also data for facilities that are
Sally A. Guardado, C.S.R. * (708) 479-6664
2525
using activated carbon systems which are, in fact, not
used at SEMASS which also show very low levels of dioxin
and furan emissions.
Q. Okay. With respect to the performance data for
the SEMASS unit, can you recall what the average was of
those test runs?
A. I'd prefer to refer to the application. The
application speaks for itself in that regard.
My recollection, it's about .02 nanograms
per cubic meter, toxic equivalence.
Q. If you would like to look at Petitioner's
Exhibit 16, I believe it's the November 1994, amended
supplement to the October 1994 application.
A. I have it before me.
Q. And can you find the data that you're referring
to?
I believe it's on page 24, Bates stamp
026?
A. The data is actually on pages 24, 25, and 26,
of the November submission. I'll take your word for Bates
stamping.
Q. Okay. With respect to this performance data
Sally A. Guardado, C.S.R. * (708) 479-6664
2526
for the SEMASS Unit Three for dioxin and furans, how would
you describe the difference between that data and the
proposed emission limit for dioxin and furans in WSREC's
application?
MS. ANGELO: Objection. Vague. Ambiguous. May
call for a narrative. I can't tell.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: I guess, first of all, I do need to
clarify which particular proposed limit in WSREC's
application.
What WSREC proposed was the two-stage
approach to compliance of dioxins/furan emission
limitation, in which, for the first three years of initial
operation, it would be a higher limit for dioxin/furan
emissions. A lower limit would become effective in the
fourth year of operation.
After the fourth year of operation, the
number for comparison to these numbers would be .2
nanograms per cubic meter, toxic equivalence, the emission
limit that WSREC was proposing. That's the background.
I remember the question was comparison.
Well, the numbers speak for themselves.
Sally A. Guardado, C.S.R. * (708) 479-6664
2527
.05 compared to .2. About an eighth.
.017 compared to .2. About a tenth.
.012 compared to .02, about a sixteenth,
or something.
Overall, they appear to be an order of
magnitude generally less than .2 emission limit that WSREC
proposed as BACT.
I think I'd also point out that as a
result of my subsequent evaluation there is a numerical
error on page 26.
The bottom of page 26, the total dioxin
and furan represented should not be less than 0.095. I
believe if you check your math, it should be less than
0.0095.
MS. ANGELO: Can I just suggest -- I was trying to
follow Mr. Romaine as he read things.
I cannot find the numbers he was reading
and comparing on these pages. At least what I thought I
understood to be a .095 number.
HEARING OFFICER WALLACE: Mr. Romaine, would you go
back through your numbers?
THE WITNESS: The last point I was making --
Sally A. Guardado, C.S.R. * (708) 479-6664
2528
MS. ANGELO: It didn't have to do with your last
point. It had to do with your earlier comparisons, I
believe.
HEARING OFFICER WALLACE: You went through each of
the three pages you had in your hand and read a number off
them.
THE WITNESS: The numbers that I'm using for
comparison are the numbers at the bottom of the page that
are expressed as nanograms per dry standard cubic meter of
7 percent O-2.
In fact, the dioxin/furan limits that
we're talking about that WSREC proposed is also at this
correction, 7 percent O-2, so that's the number that's
appropriate for comparison.
The NSPS number for dioxin/furan
expressed in equivalency, not as total dioxin/furans, but
as equivalent dioxin/furans, after three years of
operation is .2 nanograms per cubic meter.
The emission data that's provided here in
the application states that "This particular case at
SEMASS was achieving total dioxin/furans in toxin
equivalence at 7 percent O-2, the same units as the NSPS,
Sally A. Guardado, C.S.R. * (708) 479-6664
2529
of less than 0.025.
Just using simple arithmetic, .025 is one
eighth of .2.
BY MS. KROACK:
Q. And on the next page?
A. Similarly, on the next page, the number for
comparison is 0.017. In rough terms that's a tenth of .2.
On the last page, the test of emission
rate was 0.012. That's about a sixteenth of .2.
The other point I was making, was if you
go up two numbers from that it states that the total was
less than 0.095. That is a numerical error. That, they
dropped out a zero and, in fact, should be less than
0.0095.
Q. Thank you.
In your opinion, are those differences in
the emission rates significant?
MS. ANGELO: Objection.
MR. DIMOND: Objection.
MS. ANGELO: Vague. Foundation.
HEARING OFFICER WALLACE: You need to be more
precise. "Different" from what, I believe.
Sally A. Guardado, C.S.R. * (708) 479-6664
2530
BY MS. KROACK:
Q. In your opinion, is the difference between the
test result of the SEMASS Unit Three, memorialized in page
24, the November 1994 application, page 25 of the November
1995 application, and page 26 of the 1995 application,
expressed as nanograms per dry standard cubic meter at 7
percent O-2, in comparison to .2 nanograms per dry
standard cubic meter at 7 percent O-2 proposed by WSREC,
significant?
MS. ANGELO: Objection. That's beyond the scope of
his expertise as offered or as described.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Yes. I believe it's significant.
That sort of discrepancy between tested emission rates and
the proposed limitation, definitely warrants further
investigation to explain why the proposed emission rate
should, in fact, be almost an order of magnitude higher
than the test of emissions.
BY MS. KROACK:
Q. In your recollection, what did you recommend to
WSREC in pre-application meetings with respect to
inclusion of supporting information for its application?
Sally A. Guardado, C.S.R. * (708) 479-6664
2531
MS. ANGELO: Vague. Foundation.
We've had discussions I believe, about
various --
HEARING OFFICER WALLACE: Sustained.
BY MS. KROACK:
Q. Mr. Romaine, did you have pre-application
meetings with representatives of WSREC for its Bureau of
Air permit application?
A. Yes. I had participated in a number of
pre-application meetings. And, I guess, ongoing
application meetings with WSREC with regard to this
project.
Q. Did you discuss what kind of supporting
information you wanted to see in that application with
respect to BACT and LAER determinations?
A. I believe that topic did come up.
Q. Do you remember what you stated to WSREC with
respect to that topic?
MS. ANGELO: That still doesn't answer the
foundation problem.
HEARING OFFICER WALLACE: Sustained.
BY MS. KROACK:
Sally A. Guardado, C.S.R. * (708) 479-6664
2532
Q. Can you tell me the date of the first meeting
that you had with WSREC -- the pre-application meeting
that you had with WSREC, the approximate date?
A. The only specific date I recall by memory would
be something back in 1988. To identify other dates, in
fact, I would refer to my handwritten memos. And one of
the things that I can reproduce from those memos is dates
of meetings.
Q. Okay. At the meeting back in 1988, do you
remember who attended on behalf of WSREC?
A. I would want to refer to my memo to refresh my
recollection.
I also believe that that was way before
the particular meetings of interest with which Gary would
have been present.
I guess the key participants in these
meetings from my perspective would be myself, Jim Cobb and
Gary.
HEARING OFFICER WALLACE: Uh-uh.
THE WITNESS: I apologize.
BY MS. KROACK:
Q. Were you present at the hearing last week when
Sally A. Guardado, C.S.R. * (708) 479-6664
2533
Mr. Pierce stated that he believed testing of carbon duct
injection systems at Camden County and Stanislaus County
and Marion County showed emission returns beyond some rate
of activated carbon injection?
MS. ANGELO: Misstates the testimony. I think it's
also an unclear statement.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Yes, I was.
BY MS. KROACK:
Q. To your knowledge, in reviewing the WSREC
application, was this belief stated in those applications?
MS. ANGELO: Objection. The document is going to
speak for itself. And Mr. Romaine's interpretation of
that point, I think, is not helpful.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: I don't believe that that
representation or that testimony by Mr. Pierce was in fact
reflected in the application that was submitted to the
Agency that was before the Agency as of February 27, 1995.
There were references made to that
testing. I checked that point after my testimony. But I
did not find any identification of the point about
Sally A. Guardado, C.S.R. * (708) 479-6664
2534
diminishing effectiveness.
MS. ANGELO: I'm going to move to strike now.
Apparently all we have gotten is a
statement by Mr. Romaine that he went back and -- Not as a
matter of expert testimony at all. He just went back and
he didn't find something. And he's testifying to that.
That has nothing to do with whether a
discussion was there or not.
HEARING OFFICER WALLACE: Overruled.
BY MS. KROACK:
Q. Based on your review of the WSREC permit
application, were copies of those actual test results
included in the November 1994 application?
A. No. They were not.
Q. Okay. With respect to the testing of activated
carbon duct injection systems conducted at the Stanislaus
County facility, what did WSREC's application, in your
understanding, conclude or state?
MS. ANGELO: Same objection.
HEARING OFFICER WALLACE: Excuse me. We have to go
off the record. I'll be right back.
(Whereupon, a discussion was held off
Sally A. Guardado, C.S.R. * (708) 479-6664
2535
the record.)
HEARING OFFICER WALLACE: Miss Kroack?
MS. KROACK: I'm not sure. Did I get an answer to
my last question?
HEARING OFFICER WALLACE: There was an objection.
Could you repeat your question?
MS. KROACK: Sure.
BY MS. KROACK:
Q. With respect to testing of activated carbon
duct injection systems conducted at the Stanislaus County
facility, in your understanding of WSREC's application,
what did it conclude or state with respect to that
testing?
MS. ANGELO: I think I made my objection. And the
application speaks for itself.
HEARING OFFICER WALLACE: Okay. Objection is
overruled.
Mr. Romaine?
THE WITNESS: The application included a number of
points from that testing and then summarized the results
of that testing, saying it appeared that this testing
would suggest that activated carbon systems would be
Sally A. Guardado, C.S.R. * (708) 479-6664
2536
effective in further reducing emissions of dioxins and
furans and mercury from Municipal Waste Combustors.
BY MS. KROACK:
Q. Turning, for a moment, from the LAER
requirements.
MS. ANGELO: Can I just object and move to strike.
I don't think that's a proper description
of the document.
It illustrates the problem of having
people testify as to what's clearly on paper. But I would
object and move to strike.
HEARING OFFICER WALLACE: Objection overruled.
The answer stands.
BY MS. KROACK:
Q. In your understanding, do the Board's Rules at
35 Illinois Administrative Code Part 203 apply to
emissions of NOx from the WSREC facility?
MS. ANGELO: Legal conclusion.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Yes, they do.
The application clearly indicates that
this will be a major source for NOx emissions. The site
Sally A. Guardado, C.S.R. * (708) 479-6664
2537
of the proposed facility is in Northeastern Illinois.
Northeastern Illinois is a severe Ozone Non-Attainment
Area. We have a classic major non-attainment area project
for NOx.
BY MS. KROACK:
Q. Mr. Romaine, what is your understanding of
LAER, the Lowest Achieve Available Emission Rate?
MS. ANGELO: Legal conclusion.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Well, LAER is a requirement for a
major new source for non-attainment area contaminants. In
the circumstances such as WSREC, WSREC is subject to LAER
for NOx.
LAER is an emission rate. It
specifically described in the Board's regulations. I
believe it's Section 203.301 (a), provides the description
of what LAER is. As a general matter, the way I would
describe it is a very stringent emission limitation.
But the Board's rule set up the framework
that it's the choice of either of two limitations,
whichever is more stringent.
The one limitation you look at is the
Sally A. Guardado, C.S.R. * (708) 479-6664
2538
most stringent limitation that's in any State
Implementation Plan, unless it can be demonstrated that
even though there is such a limitation, the implementation
plan is not achievable. So that's one basis to go for
defining what is LAER.
The other bases, the other emission
limitation to look at, is the most stringent limitation
achieved in practice.
The other aspect of LAER is that it is
set on a case-by-case basis during permitting of a
project, such that it's a limitation that the Agency has
to set in a permit.
BY MS. KROACK:
Q. When you say that one of the things that might
be LAER is what is achieved in practice for a
particular -- When you say "what is achieved in practice,"
is that achieved in practice by Municipal Waste Combustors
or some other type of facility?
MS. ANGELO: Compound. Legal conclusion. Vague.
Leading.
HEARING OFFICER WALLACE: Sustained as to leading
and compound.
Sally A. Guardado, C.S.R. * (708) 479-6664
2539
BY MS. KROACK:
Q. What is your understanding of what "achieved in
practice" means for a LAER determination?
MS. ANGELO: Legal conclusion.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: My understanding of what is achieved
in practice is, when we have a particular class for other
similar types of units, what emission rates and what
emission limitations are associated with those emissions
limitations -- those emission rates, that have actually
been achieved.
BY MS. KROACK:
Q. What class or source would you put the WSREC
facility in?
MS. ANGELO: Objection. Outside of the scope of his
expertise. Ambiguous
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Well, it's a fuel combustion source.
A broad category. It's more narrowly a fuel combustion
source burning municipal waste.
BY MS. KROACK:
Q. What is your understanding of the
Sally A. Guardado, C.S.R. * (708) 479-6664
2540
February 27th, 1995, denial letter with respect to LAER?
MS. ANGELO: Same objections I made earlier as to
the usefulness of testimony of any kind, expert or not, as
to the text of the denial which must stand on its own.
MS. KROACK: I'm not asking his expert opinion, I
just want him to describe it so that I can ask some
questions.
HEARING OFFICER WALLACE: As amended. Overruled.
THE WITNESS: I refer to the document to refresh my
specific recollection.
Again, as I already stated, we generally
identified our concerns with the application. These are
denials that have fair and adequate information to show
compliance with the Act and Regulations.
We then have a specific denial point with
regard to Lowest Achievable Emission Rate. We Stated that
the application, the information in that application,
doesn't demonstrate that Lowest Achievable Emission Rate
has been supplied for NOx and that the application didn't
provide sufficient explanation and reasons for elimination
of Selective Catalytic Reduction technology which appears
to be a more efficient technology.
Sally A. Guardado, C.S.R. * (708) 479-6664
2541
BY MS. KROACK:
Q. And when you say that Selective Catalytic
Reduction may be a more efficient technology, what do you
mean?
MS. ANGELO: I think there's a disconnect there. I
thought he was just describing the application. Now, he's
being asked to tell us what he means by "more efficient."
I think that creates the assumption that
he's now interpreting the language of this document and
what was meant in the document. I don't think that's
proper.
If Miss Kroack is asking Mr. Romaine,
separately and apart from what he just read, you know,
"look at the terms 'more efficient technology,' what do
you mean by that?" I think that's a different question.
But the suggestion that he's interpreting the document,
now, I think is improper.
MS. KROACK: I'm not attempting to suggest that he
interpret the document, and I will just rephrase the
question.
HEARING OFFICER WALLACE: All right.
BY MS. KROACK:
Sally A. Guardado, C.S.R. * (708) 479-6664
2542
Q. Mr. Romaine, why do you believe WSREC needed to
eliminate Selective Catalytic Reduction technology for the
control of NOx for purposes of a LAER demonstration?
MS. ANGELO: I think it's the same objection.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Well, SCR is generally recognized as a
more effective control technology for NOx, than SNCR.
The application included information
confirming that general understanding as applied to
Municipal Waste Combustors.
The key point, if you look at the
applications, when they evaluated the application of
SNCR -- SCR to the WSREC facility, they put forth as a
quote that proposed an emission limit of 60 PPM
for NOx. Whereas, they were only proposing to achieve an
emission limit of 100 PPM with the SNCR technology.
BY MS. KROACK:
Q. When you say SNCR. You mean?
A. I mean Selective Non-Catalytic Reduction. SCR
refers to Selective Catalytic Reduction.
Q. Thank you.
To your knowledge, does the November 1994
Sally A. Guardado, C.S.R. * (708) 479-6664
2543
WSREC application include estimates of the cost of
applying SCR to the proposed facility?
MS. ANGELO: Objection. The document speaks for
itself.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Yes, it did.
BY MS. KROACK:
Q. Are you familiar with these two cost estimates?
A. Yes, I am.
Q. Given that WSREC included two cost estimates in
the November 1994 application, why do you believe that as
of February 27th, 1995, WSREC had not made a LAER
determination?
MS. ANGELO: Objection. This is leading.
HEARING OFFICER WALLACE: Sustained.
BY MS. KROACK:
Q. Do you believe WSREC had made a LAER
determination as of February 27, 1995?
MS. ANGELO: Legal conclusion.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: No, I don't.
As stated in the application, they hadn't
Sally A. Guardado, C.S.R. * (708) 479-6664
2544
provided sufficient information, sufficient reasons for
eliminating SCR as LAER.
BY MS. KROACK:
Q. And did you consider these two cost estimates
in forming that opinion?
MS. ANGELO: Foundation.
First of all we didn't know what two cost
estimates we are talking about. And that's also
ambiguous. It's also outside the scope of what was
disclosed in the discovery.
HEARING OFFICER WALLACE: Overruled.
Mr. Romaine?
THE WITNESS: I did not place great reliance on
those cost estimates, no.
BY MS. KROACK:
Q. Why not?
A. The key question for a LAER determination is
what is the most stringent emission limitation that is
ever achieved in practice.
The information in the application
clearly indicated that SCR was the most stringent control
technology.
Sally A. Guardado, C.S.R. * (708) 479-6664
2545
The information on economics is not
normally considered in LAER determinations, and that's
something that I would have referred to the U.S. EPA's New
Source Review manual to confirm. And in the New Source
Review Manual it indicates that economic considerations
don't normally enter into LAER determinations. If it
should be used somewhere, it should be used at the
proposed facility.
However, the U.S. EPA goes on to provide,
and I recall an exception to that, that says that if you
can demonstrate that the economic impact of a particular
control technology would preclude development of any
facility, any new facility in that particular industry,
that, in that case, economics can be relied upon to
eliminate that control technology, so it doesn't have to
be used as LAER.
MS. ANGELO: Objection. Move to strike.
The reliance on U.S. EPA's documentation
with respect with respect to New Source Review and
especially LAER, is irrelevant in this proceeding. This
proceeding, as the Agency has told us several times,
involves state law.
Sally A. Guardado, C.S.R. * (708) 479-6664
2546
HEARING OFFICER WALLACE: Objection is overruled.
The answer stands.
BY MS. KROACK:
Q. I'm going to refer you to the November 1994
application, so you can refresh your recollection. I
think it's pages 53 to 56 and Bates stamp 055 to 058. In
particular page 55, Bates stamp 057.
Can you describe what's on page 55 for us
briefly?
MS. ANGELO: Objection. That's vague. Overly
broad. Obviously, the page speaks for itself.
HEARING OFFICER WALLACE: Sustained.
BY MS. KROACK:
Q. In Petitioner's Exhibit 16, the November 1994
application, at page 55, what does this page describe for
you, Mr. Romaine?
MS. ANGELO: Objection. Same problem.
Now, we are asking about his personal
impression, I guess.
I got the impression before that we were
refreshing a recollection, but we didn't have any
indication that there was a recollection that needed
Sally A. Guardado, C.S.R. * (708) 479-6664
2547
refreshing.
I don't know what this is about, but I
can't tell from the question and I don't know that the
record will be able to tell from the question what this is
showing.
HEARING OFFICER WALLACE: Sustained.
BY MS. KROACK:
Q. Looking at page 55, Mr. Romaine, is this what
is referred to as the Mercer County Study for the
estimated cost of applying SCR at a Municipal Waste
Combustors facility?
A. Yes, it is.
Q. Okay. What emission level of NOx emissions was
assumed to be achieved in this study?
A. It was assumed that the uncontrolled emissions
would be 300 PPM and that the controlled emissions would
be 60 PPM.
Q. How does this level of NOx emissions, with SCR
control, compare to the NOx emission level proposed by
WSREC with SNCR?
MS. ANGELO: Objection. Vague.
HEARING OFFICER WALLACE: Overruled.
Sally A. Guardado, C.S.R. * (708) 479-6664
2548
THE WITNESS: WSREC, in its application, proposed a
NOx emission limit for LAER of 100 PPM. This cost quote
reflects achievement of an emission rate of 60 PPM. 60
PPM is 60 percent of 100 PPM.
BY MS. KROACK:
Q. If the WSREC project met an emission limit of
60 PPM for NOx, what effect would this have on total NOx
expected to be emitted from the facility?
MS. ANGELO: Objection. Outside the scope of
anything in this proceeding.
We've been told by the Agency itself that
they were very concerned that this -- that the issues here
do not slop over into other areas such as modeling, risk
assessment, all kinds of other things, that were also
involved with this permit application. And we have been
very cautious in our case not to introduce those issues.
To ask Mr. Romaine, now, to talk about
total emissions, I think is doing, on the Agency's part,
exactly what they cautioned us that they would expect us
not to do.
MS. KROACK: I just don't understand the basis of
Ms. Angelo's objections. I'm asking Mr. Romaine to
Sally A. Guardado, C.S.R. * (708) 479-6664
2549
compare the proposed -- the NOx emission rate achieved in
this study versus what WSREC achieved and draw some
conclusions from that, based on what they proposed in
their application.
I'm not going past February 27, 1995.
I'm merely asking him, what is his conclusion in comparing
the two. The total of NOx emissions proposed to be
admitted by the facility is one of the pieces of
information included in this application.
HEARING OFFICER WALLACE: Overruled.
Mr. Romaine?
THE WITNESS: In terms of total emissions, at 100
PPM, WSREC indicated that they would have the potential to
emit about 570 tons per year.
If you multiply 570 tons per year times
60 percent, you end up with about 340 tons per year of
emissions.
Comparing 570 tons of 100 PPM versus 340
tons of 60 PPM, you are talking about a difference of 230
tons per year on the potential emissions from the
facility.
BY MS. KROACK:
Sally A. Guardado, C.S.R. * (708) 479-6664
2550
Q. Would that reduction in total NOx emitted
result in any kind of financial savings to WSREC in your
understanding?
MS. ANGELO: Objection. Foundation. And, also,
there is absolutely nothing in Mr. Romaine's experience or
in the disclosures that were made to us that indicates
that this is an area in which he's an expert or in which
he was to provide testimony.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: The thing that immediately comes to
mind is what would be saved if WSREC didn't have to
provide offsets for those 230 tons per year of emissions.
I don't know the details of it, but,
apparently, WSREC is expending certain funds to obtain
offsets so, conceivably they would have to spend 40
percent less money for those offsets.
BY MS. KROACK:
Q. Were you here when Mr. Pierce testified that
the total price to be paid for NOx emissions from
Commonwealth Edison -- emission offsets to be obtained
from Commonwealth Edison in the event they were required,
would be $2.8 million?
Sally A. Guardado, C.S.R. * (708) 479-6664
2551
MS. ANGELO: Objection. Misstates the testimony.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: I recall Mr. Richardson mentioning a
figure of $2.8 million dollars, yes.
BY MS. KROACK:
Q. So, in your understanding, that cost figure
could be reduced?
A. I don't --
MS. ANGELO: Objection. He's already said he
doesn't have any further information. I think he was just
about to say it again, there. So the question can only be
leading and calling for speculation.
HEARING OFFICER WALLACE: Sustained.
BY MS. KROACK:
Q. What was the cost effectiveness of the SCR
system evaluated by WSREC in your understanding?
MS. ANGELO: Objection. Ambiguous. Cost
effectiveness.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: In this regard, the document does
speak for itself. The cost estimate indicates for this
particular option that's evaluated here, the cost
Sally A. Guardado, C.S.R. * (708) 479-6664
2552
effectiveness would be $6,162 per ton of NOx removed.
There's another figure I can't immediately point to it,
for the second version of this cost quote that would give
a cost effectiveness for an SCR system, if the SCR system
also included a fixed bed carbon filter.
BY MS. KROACK:
Q. Referring only to the Mercer County facility
study for a moment on the November 1994, was the cost
impact of the SCR system, evaluated by WSREC, also
expressed in terms of the impact on the tipping fee?
A. Yes, it was.
Q. Okay. In your understanding of the
application, did it specify the dollar amount of waste
tipping fees in Northern Illinois?
MS. ANGELO: Objection. The document speaks for
itself.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: No, it did not.
BY MS. KROACK:
Q. Did the application specify a dollar amount of
waste tipping fees in other areas of the United States?
MS. ANGELO: Foundation, as well. And I probably
Sally A. Guardado, C.S.R. * (708) 479-6664
2553
should have made a foundation objection to the earlier
question.
The question apparently assumes, and I
don't know whether or not that's true, but apparently
assumes that there is a dollar amount of tipping fees. I
don't think there's any showing that such an animal
exists.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: No, it doesn't.
BY MS. KROACK:
Q. What concerns do you have about an economic
evaluation of a control technology -- Let my rephrase
that.
Do you have concerns about an economic
evaluation of a control technology expressed in terms of
tipping fees?
MS. ANGELO: Objection. Concerns.
HEARING OFFICER WALLACE: Overruled.
MS. ANGELO: Concerns are normally not relevant.
THE WITNESS: Yes, I do.
The way that control technologies are
usually compared is by cost effectiveness values.
Sally A. Guardado, C.S.R. * (708) 479-6664
2554
Effectiveness values are used to compare control
technologies among -- with other control technologies to
select among control technologies or to rank a conversion
of costs into tipping fees, takes it into an area where I
don't have expertise.
I don't know what goes into a tipping
fee. I don't know if it's, in fact, the appropriate
measure to be used for a Municipal Waste Combustor. I
don't know if it accounts for other factors that should be
considered in an economic analysis, such as electricity
revenue and a cost for material recovery. It's an unknown
to me.
BY MS. KROACK:
Q. In your opinion, is Selective Catalytic
Reduction considered a technically feasible control
technology alternative for NOx emissions for Municipal
Waste Combustors?
MS. ANGELO: Objection. Legal conclusion.
MS. KROACK: I'm asking for his opinion.
HEARING OFFICER WALLACE: I'm sorry. Could you
restate your question?
MS. KROACK: Sure.
Sally A. Guardado, C.S.R. * (708) 479-6664
2555
BY MS. KROACK:
Q. In your opinion, Mr. Romaine, is SCR considered
a technically feasible control technology for NOx
emissions from a Municipal Waste Combustor?
HEARING OFFICER WALLACE: Objection is overruled.
THE WITNESS: Yes. Clearly based on the
application. The application gave numerous references to
locations where SCR systems were being used.
BY MS. KROACK:
Q. What is your understanding of what U.S. EPA's
New Source Review manual indicates about technologies used
outside of the United States in the Top-Down BACT process?
MS. ANGELO: Objection.
The document is going to speak for itself
and say whatever it has to say. Interpretation of that is
inappropriate.
Furthermore, again, it's a U.S. EPA draft
guidance document. This is not a federal program that's
being -- that is the subject of this particular part of
the application.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: The U.S. EPA does indicate it's
Sally A. Guardado, C.S.R. * (708) 479-6664
2556
appropriate to consider control technologies in use
outside the United States as part of the description of
step one of the Top-Down process when collecting the
entire realm of possible control options. It specifically
states that if you're aware of something being used
outside of the United States, just the fact that it's not
being used outside the United States isn't basis to
exclude it from the control technologies in consideration.
BY MS. KROACK:
Q. As you have been sitting through these
proceedings, have you heard discussions about
reengineering of SCR?
A. Yes, I have.
Q. And what is your understanding of what
reengineering of SCR is?
A. Reengineering of SCR, as described in the
testimony -- I'm not sure, in fact, I agree with that use
of the terminology -- but, as used, it's the addition of
features to a, I have to characterize it as a simple SCR
system.
If the basic technique of SCR is
introduction of a catalyst bed into a point and to make
Sally A. Guardado, C.S.R. * (708) 479-6664
2557
the exhaust working at the correct temperature for the
catalytic reductions to occur and inject ammonia or other
appropriate reagent material for that, than that would be
considered basic SCR.
As the term reengineered SCR has been
used, it appears to be any additional features or
alternative approaches that are applied to SCR to address
technical concerns or obstacles to the use of SCR.
So, as described here, one of the things
that have been characterized as reengineering, is taking
that SCR catalyst bed from in front of the fabric filter
and a particulate matter control device where the flue gas
is normally in the appropriate temperature range for
catalytic reductions to occur, and placing the SCR system
after the particulate matter filter, to a point where we
have to reheat the flue gas to appropriate temperature for
the Selective Catalytic Reductions to occur.
Conceivably, another term that might be
considered reengineering is the development of a more
expensive catalyst or an alternative catalyst that
operates at different temperatures and doesn't have
problems with poisoning that might, in fact, be more
Sally A. Guardado, C.S.R. * (708) 479-6664
2558
expensive. Introduction of a carbon bed filter to help
protect a catalyst.
But reengineering as used in this thing,
is the addition of -- in this proceeding, appears to be
just the addition of additional features to a basic
technology to make sure that that technology performed
reliably and effectively.
MS. ANGELO: I'm going to move to strike. It's a
long explanation that's purported to be a summary of our
testimony. It was no where close. So I object on that
grounds.
I also object on the grounds that
Mr. Romaine is not an expert in these areas.
HEARING OFFICER WALLACE: Overruled.
Answer stands.
BY MS. KROACK:
Q. Using the term reengineered control
technologies as been discussed in the testimony and as
you've just described, in your understanding, does the
U.S. EPA Top-Down BACT guidance address reengineering of
control technology?
MS. ANGELO: Leading.
Sally A. Guardado, C.S.R. * (708) 479-6664
2559
HEARING OFFICER WALLACE: Sustained.
BY MS. KROACK:
Q. In your understanding, what impact does
reengineering of control technology have under U.S. EPA's
Top-Down BACT guidance process?
MS. ANGELO: Vague.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: The U.S. EPA's Top-Down guidance
specifically addresses how to approach physical
modifications to a particular technology to address
technical obstacles or concerns to the application or to
apply technology to a particular source.
What the Top-Down guidance indicates is
that the presence or the need to make those types of
physical modification or do that reengineering should not
be considered a basis to deem a particular control
technology infeasible.
Those additional features of
reengineering, however, can be and should be considered
when an evaluation is performed at the cost of that
technology. The cost impact of that technology.
BY MS. KROACK:
Sally A. Guardado, C.S.R. * (708) 479-6664
2560
Q. In your opinion, does the Top-Down BACT process
apply to LAER determinations?
MS. ANGELO: Objection. Legal conclusion.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: It doesn't strictly apply. However,
the Top-Down policy resolves a number of issues for how
control technology determinations should be determined.
Certainly, the LAER guidance builds on
all those points that U.S. EPA expounds at much greater
length in the Top-Down analysis.
The point where I would say that the LAER
evaluation deviates from the Top-Down analysis is that the
LAER evaluation focuses on the most stringent options out
there. So, it isn't necessary to go through, as I say, as
complete a listing of control options as this broad
universe of what is conceivably achieved. And, then,
starting from that point, a much more condensed evaluation
can be performed, focusing on, in fact, what are the most
effective technologies in this case.
The two technologies that would have to
be resolved are SCR versus SNCR.
BY MS. KROACK:
Sally A. Guardado, C.S.R. * (708) 479-6664
2561
Q. In your opinion, which is the more stringent
emission limitation, BACT or LAER?
MS. ANGELO: Legal conclusion.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: LAER is clearly the more stringent
limitation in a general sense.
If you look at the definition of LAER, it
says the most stringent of what is being achieved or
limitations in a particular limitation plan that's being
applied in a non-attainment area. So, LAER has to be
equal to or more stringent than Best Available Control
Technology.
Q. In your understanding of the Board's Rules that
appear in Part 203, as they mention cost effectiveness or
cost impact, would that criteria be considered in a LAER
determination?
MS. ANGELO: Objection. Legal conclusion.
She's asking him to read the rules. The
Board apparently knows them better than all the rest of
us.
HEARING OFFICER WALLACE: Sustained.
BY MS. KROACK:
Sally A. Guardado, C.S.R. * (708) 479-6664
2562
Q. In your understanding, what does U.S. EPA's
guidance in the New Source Review Manual provide with
respect to the role of economic impact in a LAER
determination?
MS. ANGELO: I think we've had this before. Asked
and answered.
HEARING OFFICER WALLACE: Didn't we have this
before?
MS. KROACK: He answered part of it, but not quite
all of it, earlier.
HEARING OFFICER WALLACE: Overruled. Just answer
the part you didn't answer.
THE WITNESS: I'm afraid -- I'm afraid I will repeat
what I said before.
HEARING OFFICER WALLACE: All right. Then let's
skip to the next question, then.
BY MS. KROACK:
Q. Does the U.S. EPA's guidance in the New Source
Review Manual, with respect to the economic impact of the
LAER determination, set forth its standards in economic
factors that may be considered in a LAER determination?
MS. ANGELO: Objection. Leading.
Sally A. Guardado, C.S.R. * (708) 479-6664
2563
MS. KROACK: I'm asking if it does.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: I think you could look at it as a
standard. It, basically, says that you can't normally
consider economic impacts, but if you can demonstrate, you
can meet a standard, I guess, that the economic impacts of
a particular technology would prevent development of a
particular type of source in the industry as a whole, then
it is acceptable to consider economic impacts.
MS. ANGELO: I'm going to object, Mr. Hearing
Officer and move to strike.
I had understood, I guess, perhaps
incorrectly, that when Miss Kroack was referring, when she
was talking about U.S. EPA guidance to the document she
had marked at the beginning of this discussion.
That clearly is not the case with respect
to the question she just asked.
MS. KROACK: That's isn't true.
MS. ANGELO: Which must mean, in my mind, that we
have been referring all along to a document that hasn't
been identified for us.
MS. KROACK: That's not true Ms. Angelo. You have
Sally A. Guardado, C.S.R. * (708) 479-6664
2564
to look at G 4 in here. And the guidance that --
individual guidance that you brought up before in your
Direct Examination, actually appears in this document, as
well. Look at Section G. Specifically, G 4.
HEARING OFFICER WALLACE: What did you pull out?
MS. KROACK: I'm looking at Respondent's Exhibit 5.
HEARING OFFICER WALLACE: The objection is
overruled.
BY MS. KROACK:
Q. In your opinion, did WSREC's application and
the information contained therein meet the standard for
economic viability of SCR to Municipal Waste Combustors as
described in the New Source Review Workshop Manual?
MS. ANGELO: I don't know what meeting the standard
for economic viability to SCR, or of SCR, I can't remember
what Miss Kroack's just said. I can't tell what that
means and, therefore, I don't know what kind of a
narrative is being solicited by that question. And, I
also believe I have a legal objection. A legal conclusion
objection. But, again, I can't tell from the question.
MS. KROACK: I can rephrase the question slightly,
but I'm asking for a yes-or-no answer. And I'm asking
Sally A. Guardado, C.S.R. * (708) 479-6664
2565
based on a standard he just described -- I will just
rephrase it.
BY MS. KROACK:
Q. Mr. Romaine, in your opinion, based on the
standard for when economic factors may be considered in a
LAER determination, did WSREC's application and the
information contained therein, meet that standard with
respect to Selective Catalytic Reduction application to
Municipal Waste Combustors?
MS. ANGELO: Legal conclusion and leading.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: No, it did not.
MS. KROACK: I have no further questions for
Mr. Romaine.
Although, at this time, I'd like to move
to admit Respondent's Exhibit 5, and, from yesterday, I
believe we had Respondent's Exhibit 4, which is just the
Top-Down BACT guidance that also appears in this document,
that that's what Mr. Pierce was questioned about,
specifically.
MS. ANGELO: I would like to object to both
documents. They were not provided by the original record
Sally A. Guardado, C.S.R. * (708) 479-6664
2566
in this case. They were included in one of the much
subsequent piles of documents that we received.
We have already heard an explanation of
how matters were or items or documents were kept in
Mr. Romaine's office. I think it's pretty clear they were
never part of a record here until the Agency began
accumulating documents in response to the litigation, and
it was decided that this document would be added to the
pile as being supportive, or arguably supportive of the
decision that was reached.
I don't think there was any showing that
it was ever part of the record as considered by the Agency
in a decision that was issued in February of '95.
MS. KROACK: Mr. Romaine has testified that he knew
of this guidance before this decision date. He uses that
guidance in his role as Manager of the New Source Review
Unit. That he applied this guidance with respect to the
WSREC application in particular.
When the initial record was filed, we
included only the things that the Board requires.
When required to expand that, we included
all the supporting documents that were identified by our
Sally A. Guardado, C.S.R. * (708) 479-6664
2567
Permit Analysts. We provided this to Ms. Angelo at Mr.
Romaine's first deposition early in January. And it's
been part of the Agency -- was then submitted to the Board
as part of the Agency's supplemental record. It has been
in the record the entire time.
I fail to see any of Ms. Angelo's
arguments on this point.
HEARING OFFICER WALLACE: All right. Thank you.
Respondent's Exhibit 4 and 5 are admitted
into evidence.
(Said document, heretofore marked
Respondent's Exhibits Nos. 4 & 5 for
identification, was admitted into
evidence, to wit, as follows:)
HEARING OFFICER WALLACE: Let's break for lunch.
MS. KROACK: Are we coming back?
MR. KIM: We are coming back.
HEARING OFFICER WALLACE: Let's take about
forty-five minutes.
THE WITNESS: I will refrain from discussing my
testimony with my attorneys.
(Whereupon, the hearing was continued
Sally A. Guardado, C.S.R. * (708) 479-6664
2568
pursuant to lunch recess to March 6,
1996 at the hour of 1:50 p.m.)
Sally A. Guardado, C.S.R. * (708) 479-6664
2569
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
West Suburban Recycling and Energy )
Center ("WSREC"), L.P. ) PCB 95-119
)
v. )(Consolidated
) with
Illinois Environmental Protection ) PCB 95-125)
Agency )
March 6, 1996, A.D.
1:50 O'clock p.m.
Illinois Labor Relations Board
State of Illinois Building
4th Floor Hearing Room
160 North LaSalle Street
Chicago, Illinois
BEFORE:
MR. MICHAEL L. WALLACE, CHIEF HEARING OFFICER
APPEARANCES:
Ms. Percy Angelo,
Mr. Thomas W. Dimond,
Mr. Jonathan E. Singer and
Mr. John Z. Lee
Mayer, Brown & Platt
appeared on behalf of WSREC;
Mr. Daniel Merriman,
Ms. Laurel L. Kroack,
Mr. John J. Kim and
Ms. Christina L. Archer
Division of Legal Counsel
Illinois Environmental Protection Agency
appeared on behalf of IEPA;
Ms. Ellen O'Laughlin and
Mr. George Cahill
Office of the Attorney General
appeared on behalf of the State.
Also Present:
Members of the Public.
Sally A. Guardado, C.S.R. * (708) 479-6664
2570
HEARING OFFICER WALLACE: Back on the record. Let's
reconvene for the afternoon. Mr. Romaine is in this chair.
Are there any preliminary matters to take
up before we begin?
(No response.)
HEARING OFFICER WALLACE: All right.
Cross-examination?
MS. ANGELO: Thank you.
CROSS-EXAMINATION
BY MS. ANGELO:
Q. Good afternoon, Mr. Romaine.
You were asked some questions this
morning about, I believe, comparing BACT to NSPS and LAER
to BACT. Isn't it true that BACT can be the same as the
standards set my NSPS?
A. Yes.
Q. And isn't it also true that BACT can be the
same as LAER for any particular pollutants?
A. Yes.
Q. Indeed, isn't it also true that -- Respondent's
Exhibit 5 is entitled New Source Review Manual. It says
in the upper right-hand corner that it is a draft dated
Sally A. Guardado, C.S.R. * (708) 479-6664
2571
October 1990.
Is it your understanding that this,
indeed, is a draft document by U.S. EPA?
A No, it is not.
Q. That's not your understanding?
A. I don't consider it a draft document, no.
Q. Has U.S. EPA issued a final version of that
document?
A. No, they have not.
Q. Has U.S. EPA taken any steps to adopt this
document as regulation?
A. I don't know if they have or not.
Q. In your understanding, is this document
required to be followed in New Source Review
determinations?
A. As a whole, I couldn't -- I would say it is not
required to be followed, but there are certain elements in
it that are required to be followed.
Q. Could you look at page 274, Bates 274, of the
document? And I want to refer you to the second sentence
on that page which states that the document is not
intended -- that's "not" intended to be an official
Sally A. Guardado, C.S.R. * (708) 479-6664
2572
statement of policies and standards and does not establish
binding regulatory requirements.
Do you see that language?
A. Yes, I do.
Q. Do you disagree with that language?
A. No.
Q. Since the document's issuance as a draft in
October 1990, has there been any action by the Agency
to -- I'm reminded I should say U.S. EPA. Has there been
any action by the U.S. EPA to implement this document in
final form?
MR. KIM: Objection. I believe this question has
been asked.
MS. ANGELO: It's a slightly different question.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: I don't know.
BY MS. ANGELO:
Q. But you're not aware of any?
A. No, I'm not.
Q. When you were testifying about how you used
this document, you made references, I believe, if my notes
are correct, to updates -- Well, let me start begin.
Sally A. Guardado, C.S.R. * (708) 479-6664
2573
I think the question that was presented
to you was with regard to updates. And you gave an answer
that had to do with trying to follow letter decisions,
letters -- Trying to follow letters. Trying to follow
decisions. Implementing the document. I guess, I'm going
to need to have you, if you recall your testimony on this
point, state it again so that I can understand what you
were referring?
A. Okay. What I was indicating was that if I
received copies of U.S. EPA's policies or correspondence
that they distribute that touches on their guidance and
policies, I would take those into consideration as well.
And the U.S. EPA does issue policy
memorandums. It also distributes correspondence on
decisions it's made or findings it's made in other cases
and makes those available to State permitting agencies to
assist them in carrying out permitting.
Q. Okay. Are those memoranda, are those adopted
in any way by U.S. EPA?
A. Certainly. They're signed by U.S. EPA.
Q. So, as far as you know, what they have that
makes them effective is just the signature on the
Sally A. Guardado, C.S.R. * (708) 479-6664
2574
document?
MR. KIM: Objection. Characterization of the
document being "effective." It's unclear what that means.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: I have not -- I think it's --
investigated the issue of what authority is behind those
documents. I was asked the question of whether they were
adopted. And certainly they were adopted. They certainly
aren't rules either.
BY MS. ANGELO:
Q. Are any of those updates provided in this
Respondent's Exhibit 5 that's been offered by the Agency?
A. No, they're not. This reflects a document as
of October 1990.
Q. You were asked some questions with regard to
cost effectiveness in making BACT, I believe it was,
determinations. And you defined cost effectiveness in
response to a question, and I believe you eventually came
down to defining it as cost per dollars -- cost per ton of
pollutants involved.
Isn't it true, Mr. Romaine, that cost
effectiveness does not relate to directly to the economic
Sally A. Guardado, C.S.R. * (708) 479-6664
2575
viability of any particular control technology?
A. That's correct.
Q. Going back to the U.S. EPA draft guidance which
you provided as Respondent's Exhibit 5, and your
indication that you relied on guidance, letters,
memoranda, policy memoranda. Do you also rely on U.S. EPA
publications?
A. In certain circumstances I would rely on U.S.
EPA publications.
Q. We've given you a copy of Petitioner's Exhibit
126, Mr. Romaine. Do you recognize this document?
A. Yes, I do.
Q. Isn't this document a U.S. EPA publication?
A. Yes --
Q. With regard to NOx control technologies for
Municipal Waste Combustors?
A. Yes, it is.
Q. You were asked a question about, I believe,
concerns that you had with regard to the use of tipping
fees in making your analysis.
Are you aware that tipping fees are
discussed in the New Source Performance Standards for
Sally A. Guardado, C.S.R. * (708) 479-6664
2576
Municipal Waste Combustors?
A. I don't specifically recall that.
Q. Have you read the New Source Performance
Standards for Municipal Waste Combustors?
A. I have looked through it several times, but I
have not read it in the sense of reading it straight
through.
Q Have you looked at the proposed New Source
Performance Standards for Municipal Waste Combustors, the
one that was published I believe in the Fall of 1994?
A. Yes.
Q. Do you recall that that proposal had any kind
of discussion of tipping fees and the effect of the
technology proposed on tipping fees?
A. I don't specifically recall that.
Q. Isn't it true, Mr. Romaine, that the New Source
Review Workshop Manual that you indicated that you use and
rely on, indicates that technologies in application
outside the United States are considered to the extent
that they've been successfully demonstrated in practice on
full scale operations?
A. Are you referring to a specific page?
Sally A. Guardado, C.S.R. * (708) 479-6664
2577
Q. Is it your -- You don't have an independent
recollection of that?
A. I don't remember the specific qualification as
demonstrated on full scale facilities.
I also don't remember the context in
which that statement was made and whether that was a
statement with respect to the consideration of those
technologies, or was that linking together the first --
the inclusion of step one in the Top-Down analysis and
then step two of the Top-Down analysis to evaluate whether
those technologies were, in fact, technically feasible.
Q. Is it you understanding, then, that
technologies should be considered even though they are not
used in practice on full scale operations?
A. Under the step one of the Top-Down analysis, it
would certainly be appropriate to include those
technologies for evaluation. And, then, as part of step
two of the Top-Down analysis, to determine whether, in
fact, those technologies should be considered feasible or
not.
Q. Would you also disagree that technologies which
have not yet been applied to or permitted for full scale
Sally A. Guardado, C.S.R. * (708) 479-6664
2578
operations need not be considered available?
A. I don't think I can agree with that statement,
as it doesn't explain what basis is being used for the
demonstration.
The other fact to consider is, in fact,
technology transfer.
If the narrow distinction was being drawn
between a particular technology not having been applied on
exactly that type of unit, certainly I would not allow
that conclusion to be drawn.
Q. I guess I'm not sure, I believe, I have an
answer.
Do you disagree with that statement?
A. I think I have to.
Q. You think you have to.
Mr. Romaine, you didn't take any
chemistry as an undergrad, did you?
A. No, I did not.
Q. And you're not a chemist?
A. No, I'm not.
Q. How many people do you supervise in your New
Source Review Unit?
Sally A. Guardado, C.S.R. * (708) 479-6664
2579
A. None, directly.
Q. The unit is just yourself?
A. That's correct.
Q. You gave us some comments about emission levels
that you had observed in the application of SEMASS and
certain other combustors, I think you also mentioned
Greater Detroit and Mid Connecticut?
A. That's correct.
Q. Isn't it true, Mr. Romaine, that emission
levels have to be -- emission levels set as standards have
to be complied with a hundred percent of the time?
MR. KIM: Objection. That calls for a legal
conclusion.
HEARING OFFICER WALLACE: First of I didn't quite
catch all your question. The emission?
MS. ANGELO: The emission levels set as standards.
MR. KIM: It's also a vague question in that there
is no foundation as to what emission levels she's
referring to as applied to what type of facility or what
operation.
MS. ANGELO: Any kind of emission level.
HEARING OFFICER WALLACE: Overruled.
Sally A. Guardado, C.S.R. * (708) 479-6664
2580
THE WITNESS: No. As a practical matter they don't
have to be.
BY MS. ANGELO:
Q. If they were to be set in a permit as a permit
condition, wouldn't they have to be complied with a
hundred percent of the time?
A. As a practical matter, no.
As a regulatory matter, if they were not
complied with a hundred percent of the time, a source
would be subject to enforcement for those periods of time
in which they were in compliance.
Q. So to avoid regulatory enforcement, the source
has to be in compliance?
MR. KIM: Again, objection. These are all legal
questions.
HEARING OFFICER WALLACE: Overruled.
BY MS. ANGELO:
Q. A source has to be in compliance --
MR. KIM: I'm sorry.
BY MS. ANGELO:
Q. -- all the time, is that not correct,
Mr. Romaine?
Sally A. Guardado, C.S.R. * (708) 479-6664
2581
THE WITNESS: What was the question?
MR. KIM: I apologize for interrupting you, Ms.
Angelo.
BY MS. ANGELO:
Q. In order to avoid regulatory enforcement, a
source has to be in compliance with its applicable
limitations all the time, does it not?
A. If it's not in compliance 100 percent of the
time, it certainly experiences the risk of regulatory
enforcement.
Q. And isn't it true that in setting emission
limits for a source, that it's appropriate to set that
limit at a level higher than the emission rate that might
have been achieved over a limited period of time?
MR. KIM: Objection. It's unclear what type of
emission limits she's talking about, in what context as
far as what regulatory basis or what period of time.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: It may be. It may not be.
BY MS. ANGELO:
Q. Did you give me a different answer in your
deposition?
Sally A. Guardado, C.S.R. * (708) 479-6664
2582
A. I think I gave you a much longer answer in my
deposition.
Q. Well, do you recall being deposed?
A. Yes. The answer I gave in my deposition, as I
recall it, is you have to account for variability.
If in fact you don't have confidence that
that short-term test is indicative of long-term
performance, then you have to account for long-term
performance.
Q. And indeed when you were asked a question --
And I'm at page 227, line 23.
"Is the emission limit normally
higher than the emission rate that might
have been achieved over a limited period
of time?"
Your answer at that time was "yes," was
it not?
A. Yes. I would agree with that previous answer.
Q. Mr. Romaine, we've handed you, I hope, a copy
of Petitioner's Exhibit 37, which was the fax to Mr. Jim
Cobb from Gary Pierce on December 19, 1994.
Do you see that document in front of you?
Sally A. Guardado, C.S.R. * (708) 479-6664
2583
A. Yes, I do.
Mr. KIM: Objection. This document was never
discussed during the course of Direct.
MS. ANGELO: It's directly relevant to the
discussion Mr. Romaine had on his Direct testimony about
how you set emission limits and what emission limit was
appropriate in light of the test results that
were achieved.
HEARING OFFICER WALLACE: Continue.
BY MS. ANGELO:
Q. You would agree, would you not, Mr. Romaine,
that this document, in particular the discussion in this
document that begins at page Bates 21, is relevant to the
question of the emission limit that should be set for
dioxin, furans and mercury for the WSREC facility?
A. No, I would not.
Q. Did you give me a different answer at your
deposition, Mr. Romaine?
A. I hope not.
Q. I'm referring to page 233, at line 3. And at
the time of the deposition, I believe this document was
Exhibit 41.
Sally A. Guardado, C.S.R. * (708) 479-6664
2584
At that time, Mr. Romaine, were you asked
and did you give the following answer to this question at
the time of your deposition:
"I would like you to look again,
just a little bit, at Exhibit 41. And I'm
going too point you in particular to pages
21 through 23."
And I think if you will look at pages 21
through 23 of Exhibit 37, that's in front of you, you'll
see that those are the same pages.
"If you recall it was the fax from
Mr. Pierce to Mr. Cobb on December 19th.
If you could just read through that
quickly and tell me if what is in that fax
responds to or provides information that
is relevant to the issue of the
meaningfulness of the emissions test data
that is below the emissions limits -- that
is below the emissions limits that was
being proposed by WSREC?"
Pause. Witness perusing document.
"THE WITNESS: I would agree that
Sally A. Guardado, C.S.R. * (708) 479-6664
2585
the material is certainly relevant to the
issue."
Were you asked that question and did you
give that answer --
A. Yes, I did.
Q. -- on the occasion of your deposition?
A. That was a discussion that was with regard to
the dioxin/furan limits.
Q. And did I ask you about mercury, is that the --
A. Yes, you did.
Q. I'm sorry if I was overbroad in my question.
A. Uh-hum.
Q. So you would agree that this material is
relevant to the issue of dioxin/furan limits?
A. Yes, I would.
Q. And it's correct, is it not, Mr. Romaine, that
you can't recall whether or not you considered the
information in this Petitioner's Exhibit 37 on or prior to
February 27th?
A. I think what I indicated in the previous
statement was that I cannot specifically recall whether I
re-reviewed it in the time frame of February 27th.
Sally A. Guardado, C.S.R. * (708) 479-6664
2586
I do recall having looked at it in the
time period of December when it was submitted to us.
Q. Is that the answer that you gave to us at your
deposition?
A. I don't believe so.
Q. So at that time of your deposition you told us
that you had not -- couldn't recall whether you had
considered this information on or prior to February 27th,
did you not?
A. In the context of that deposition, answering
that question, yes.
Q Did you, during any of your conversations with
the people from WSREC, or did anyone else with the Agency
during any of the meetings which you attended, tell the
people from WSREC that they should get cost quotes to make
their application a stronger application?
MR. KIM: Objection. Lack of foundation. There is
no dates. No parties from either side. It's unclear when
these meetings would have taken place.
MS. ANGELO: It doesn't matter when they took place.
And I'm asking if he set it at any time and I then I'll be
happy to pin down the time and the individuals present.
Sally A. Guardado, C.S.R. * (708) 479-6664
2587
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: I don't recall.
BY MS. ANGELO:
Q. Do you recall having a meeting with the people
from WSREC in November of 1994?
A. I don't specifically recall that meeting, no.
Q. Do you generally recall that meeting? I don't
know what your term "specifically" means.
MR. KIM: Objection. I think he just answered the
question.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: The practice that had been established
is when we sent an NOI to WSREC, Gary would come and talk
about it. So, I believe there was a meeting in that time
frame.
BY MS. ANGELO:
Q. Do you have any recollection of talking to
WSREC in that meeting about the desirability in the view
of the Agency of obtaining cost quotes of the equipment
that was being discussed?
A. I don't --
MR. KIM: Objection. He stated he didn't have any
Sally A. Guardado, C.S.R. * (708) 479-6664
2588
recollection of the meeting itself, much less any content
that was discussed during the meeting.
MS. ANGELO: He testified, I believe, that he
recalls that there was a meeting during that time frame.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: I don't recall.
BY MS. ANGELO:
Q. You testified with regard to test data for
certain sources including, for example, test data for
sources controlling dioxin/furan emissions.
Were you, in that testimony, relying on
information that was supplied in the application?
A. Yes, I was.
Q. Were you relying on anything else beyond the
application?
A. No.
Q. You also, I think, testified about fixed carbon
beds being used in Europe. Was your information about
that, also, from the application?
A. In terms of my statements, it was based on the
application. I have not bothered to remember whether
there were other independent evidence confirming that
Sally A. Guardado, C.S.R. * (708) 479-6664
2589
fixed carbon beds were also being used there.
Q. But your statement here relied on the
application?
A. That's correct.
Q. You also, I believe, talked about activated
carbon duct injection being used on Municipal Waste
Combustor facilities in the United States.
Isn't it true that all of those
facilities are mass burn facilities?
A. In terms about the data that I was referring
to, that is correct.
Q. You also testified that the application stated,
I think this was with regard to SCR, that it was generally
recognized as more effective and that the application
confirmed that for MWCs.
Do you know where in the application
that's stated?
A. I can't point to a specific sentence in the
application that makes that statement. But, in terms of
the variety of data presented for Municipal Waste
Combustors in the application, that's the conclusion that
appears to be presented by that data.
Sally A. Guardado, C.S.R. * (708) 479-6664
2590
Q. That's the conclusion that you drew?
A. That's the conclusion I drew, yes.
Q. Can you tell me which -- I don't want to have
you spend a lot of time going through papers here, but can
you tell me which document of the application you were
referring to in making that statement?
A. It would have been the specific discussions
with regard to whether SCR or SNCR is appropriate to be
used for LAER.
It was addressed very generally in the
October submission. There was a much more detailed
response to our Notice of Incompleteness in the November
submission.
Q. So you were relying primarily on the October
and November submissions?
A. Yes.
Q. But primarily on the November submission?
A That's correct.
Q. And you would agree that that language does not
appear in the document in that form, but that's just the
conclusion you drew?
MR. KIM: Objection. He answered that question
Sally A. Guardado, C.S.R. * (708) 479-6664
2591
three questions ago.
HEARING OFFICER WALLACE: Sustained.
BY MS. ANGELO:
Q. You also referred to, I believe, the Mercer
County data estimated annual costs in the November
application and, I believe, indicated that you had
determined that the Mercer County facility would be
meeting a limit of 60 parts per million?
A. I believe that's correct.
Q. The 60 parts per million was an assumed number
for purposes of that cost quote, was it not?
MR. KIM: Objection. To borrow an objection from
earlier this morning, the document speaks for itself.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: The 60 PPM was the assumption for the
emission level reflected by that cost quote.
I don't have basis to say whether it was
assumption or not. But certainly, I'm assuming that it
was the emission limit.
BY MS. ANGELO:
Q. You are not aware of any vendor guarantee of
any kind that backs up the 60 part per million number for
Sally A. Guardado, C.S.R. * (708) 479-6664
2592
that installation of SCR at that facility?
A. No, I'm not.
Q. Indeed, isn't it true that Mercer County uses
SNCR?
A. I don't know.
Q. So you don't know actually what the limit that
a -- what limit is in place in Mercer County, do you?
A. That's correct.
Q. With respect to BACT and the New Source
Performance Standards, isn't it true that in the Robbins
Air permit issued by the Agency, the Agency set a
dioxin/furan limitation at the same level as was proposed
in the proposed NSPS?
MR. KIM: Objection. The Robbins permit was never
discussed during the Direct Examination. It's outside the
scope.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Yes, it is.
BY MS. ANGELO:
Q. Isn't it true, Mr. Romaine, that you no longer
review most construction permits that come into the Air
Bureau?
Sally A. Guardado, C.S.R. * (708) 479-6664
2593
MR. KIM: Objection. Relevance.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: I never reviewed most of them.
I'm no longer involved in the supervisory
review of most construction permits prior to issuance.
BY MS. ANGELO:
Q. I should have used the term "supervised."
Exercised a supervisory role in connection with most
construction permits.
If I had rephrased the question, that
way, would I have been more correct?
A. Yes.
HEARING OFFICER WALLACE: I'm sorry. Just so it's
clear, why don't you say it again.
MS. ANGELO: Say it again that way?
BY MS. ANGELO:
Q. Isn't it true, Mr. Romaine, that you no longer
exercise a supervisory function with respect to most
construction permits that come into the Air Bureau?
A. That's right. I don't get involved in the
majority of the construction permit applications.
Q. And isn't it true that the reason that you no
Sally A. Guardado, C.S.R. * (708) 479-6664
2594
longer provide that role, is that you didn't have the time
to do that?
MR. KIM: Again, objection. This is outside the
scope and I don't see how this is relevant.
MS. ANGELO: It has to do with his qualifications.
HEARING OFFICER WALLACE: Yes. You've offered him
up as an expert and I think this can get into that.
So the objection is overruled.
THE WITNESS: That's corrects.
My time is too valuable. It should be
concentrated on the more significant applications.
BY MS. ANGELO:
Q. And isn't it also true that your review was
delaying the expeditious return of information to the
analyst?
MR. KIM: Objection. That's a characterization on
the part of Ms. Angelo.
BY MS. ANGELO:
Q. I'm afraid it's not.
HEARING OFFICER WALLACE: I'm sorry. I was trying
to think. Overruled.
Go ahead and answer the question.
Sally A. Guardado, C.S.R. * (708) 479-6664
2595
THE WITNESS: That's correct. For routine matters,
my review was not contributing anything to the process.
BY MS. ANGELO:
Q. And, indeed, was delaying the expeditious
return of information to the analyst, was it not?
A. That would happen at times, yes.
HEARING OFFICER WALLACE: What?
THE WITNESS: That did happen. I agree.
HEARING OFFICER WALLACE: I'm sorry. I missed
something. Did you say on this project or did you just
say on projects?
MS. ANGELO: On projects.
HEARING OFFICER WALLACE: On projects.
MS. ANGELO: I have no further questions.
MS. KROACK: I just have a few.
HEARING OFFICER WALLACE: Redirect?
MS. KROACK: Just a few.
REDIRECT EXAMINATION
BY MS. KROACK:
Q. Mr. Romaine, you were asked about updates that
effect Respondent's Exhibit 5. Are you aware of any
updates that, as that term has been used, in copies of
Sally A. Guardado, C.S.R. * (708) 479-6664
2596
U.S. EPA policies, correspondence of policies or findings
on other cases that would change what's stated in that
document?
A. Yes, I am.
MS. ANGELO: Objection. Overbroad. Ambiguous.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: Yes, I am.
BY MS. KROACK:
Q. And can you describe those?
A. Well, the one that specifically comes to mind
in this circumstance is the U.S. EPA's further guidance on
federal enforceability for exhaustives.
Q. Anything else that you can think of?
A. None that are relevant to this matter.
Q. When you were asked whether the cost
effectiveness relates to economic viability of any control
technology, you responded that you agreed with that
statement.
What did you mean?
MS. ANGELO: Objection. Ambiguous.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: That in the permitting of air
Sally A. Guardado, C.S.R. * (708) 479-6664
2597
pollution control sources I did not consider the economic
viability of the project as a whole.
The economic viability of projects isn't
something that the Agency is charged to protect. The goal
of the Agency is to evaluate projects against the
applicable Air Pollution Control Regulations where, with
respect to those projects, some projects are viable and
some aren't.
BY MS. KROACK:
Q. With respect to Petitioner's Exhibit 126. I
think you have that in front of you, correct?
A. To your knowledge, did you receive that
document on or before February 27th, 1995?
A. Not to my knowledge.
Q. Okay. With respect to -- There's a publication
date of December 1994.
Based on your understanding of how these
types of documents generally come to the Agency, when do
you -- what is the normal process for how this document
comes into the Agency?
MS. ANGELO: Foundation. And I think it assumes a
lot of facts that we haven't had any discussion on.
Sally A. Guardado, C.S.R. * (708) 479-6664
2598
HEARING OFFICER WALLACE: Sustained.
BY MS. KROACK:
Q. You were asked whether emission levels set at
standards must be complied with a hundred percent of the
time.
My question is, how does a permittee
demonstrate whether they're complying with an emission
limit in their permit?
MS. ANGELO: Objection. Compound and calls for a
narrative. Also beyond the scope.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: In compliance with an emission
limitation, the permit may be determined by a number of
means, depending on what that emission limitation is, in
the first place. What the technology is.
The most authoritative determination of a
compliance with an emission limit is, in fact, by
emissions testing. Actually going in and measuring the
concentration of the pollutants and the exhaust gases from
the facility. For certain pollutants, continuous emission
monitoring can also be used to form that evaluation on a
continuous basis.
Sally A. Guardado, C.S.R. * (708) 479-6664
2599
There also may be inferences with regard
to making compliance based on how equipment is being
operated. So that if equipment is not properly -- not
being operated in a proper manner consistent with normal
practice, it may be assumed that a source is out of
compliance.
So, to maintain equipment and operating
it within normal parameters, is also a means that a source
uses to demonstrate compliance or non-compliance.
MS. ANGELO: May I just interrupt? I missed a word.
I don't know whether it was an important one or not. But
you said -- if I may, the witness said something, there
may also be, and there was a blank on my paper, based on
how the equipment was operated.
HEARING OFFICER WALLACE: Mr. Romaine, do you
remember?
THE WITNESS: I believe I said inference. Inference
and indication. It's not a definitive statement of
whether a source is in compliance or not, but as a piece
of information that could be relied upon.
MS. ANGELO: "Inference" is what you're saying?
THE WITNESS: Correct.
Sally A. Guardado, C.S.R. * (708) 479-6664
2600
MS. ANGELO: Thank you.
BY MS. KROACK:
Q. You were asked about activated carbon duct
injection used in the U.S. and you responded those were
all mass burn facilities.
In your understanding, opinion, would you
expect similar or better emission rates for dioxin and
furan with respect to RDF facilities with the use --
MS. ANGELO: Objection.
BY MS. KROACK:
Q. -- with the use of activated carbon injection?
MS. ANGELO: Objection. Outside the scope. It's
outside the scope of the Direct, even. It's also outside
his expertise.
MS. KROACK: It may be outside the scope of the
Direct, but Ms. Angelo asked on Cross about activated
carbon duct use in the U.S., and wasn't that all on mass
burn facilities. And I'm just exploring that.
MS. ANGELO: No. My question related simply to the
kinds of facilities on which it was used.
HEARING OFFICER WALLACE: You tailed off.
MS. ANGELO: It was directed solely to the kinds of
Sally A. Guardado, C.S.R. * (708) 479-6664
2601
facilities on which it was used as to which Mr. Romaine
had testified.
HEARING OFFICER WALLACE: Sustained.
BY MS. KROACK:
Q. Mr. Romaine, does the fact that a facility is a
mass burn facility, affect or impact the effectiveness of
removal for a particular pollutant, when using activated
carbon duct injection?
MS. ANGELO: Objection to his area of expertise.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: It might have an effect. Yes.
BY MS. KROACK:
Q. Would you describe that effect?
MS. ANGELO: Same objection.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: The effectiveness of a technology or
not, on control technology, depends on the amount of
pollutants entering that device. Accordingly, the type of
technology generating emissions does have a role in what
will be measured as the effectiveness of the control
technology. That means that if you are going in with a
low concentration of it in the middle, may in fact be into
Sally A. Guardado, C.S.R. * (708) 479-6664
2602
the inlet of a device, you may not show as high an
efficiency in terms of percent removal. You may still
show a reduction across the control device.
So, it will have an impact on what the
measured efficiency of the control device is. It doesn't
necessarily show that the addition of that technology
would not act to control emissions.
BY MS. KROACK:
Q. Would it affect the emission rate?
A. Yes, it would.
Q. And can you describe that?
MS. ANGELO: Same objection as to expertise.
HEARING OFFICER WALLACE: Overruled.
THE WITNESS: The function of activated carbon is to
collect and remove a contaminant from the Air stream. And
the addition of activated carbon would function to collect
and remove dioxin, furan, mercury from the air stream.
The extent of that removal might vary, but the general
principal would be the same. You might get very little.
You might get a lot. But it would be acting as a further
control measure.
BY MS. KROACK:
Sally A. Guardado, C.S.R. * (708) 479-6664
2603
Q. With respect to the Robbins permit for the
Robbins Resource Recovery facility, do you know when the
Agency issued its permit?
A. In June of 1990.
Q. And with respect to your review of permits, do
you participate in the review of most construction permits
that include PSD New Source Review or NSPS issues.
A. I participate in the review of most projects
that involve PSD issues.
I certainly get involved in the more
significant New Source Review applications.
Most NSPS projects, at this point, are
considered routine and I do not get involved.
(Whereupon, a discussion was held off
the record.)
HEARING OFFICER WALLACE: Back on the record.
MS. KROACK: I have no further questions.
HEARING OFFICER WALLACE: Recross?
(Pause.)
HEARING OFFICER WALLACE: Are you still discussing
whether you have any Recross?
MS. ANGELO: I think I have one. Maybe one small
Sally A. Guardado, C.S.R. * (708) 479-6664
2604
question.
RECROSS-EXAMINATION
BY MS. ANGELO:
Q. I had asked you a question, Mr. Romaine, about
cost effectiveness, and whether it wasn't true that cost
effectiveness had no relationship to economic viability,
and you agreed with that.
Miss Kroack came back, asked you to
explain that answer, and you said that you had given that
answer, because, I believe -- I don't want to misstate --
that economic viability is not to be considered in the
determinations that you were making.
I want to go back to my original
question, however.
Irrespective of whether or not you
believe whether or not economic viability is a
consideration, isn't it true that cost effectiveness of
the technology, in and of itself, does not relate directly
to the economic viability of a particular facility?
A. That's correct.
MS. ANGELO: Thank you.
HEARING OFFICER WALLACE: Mr. Romaine, before you
Sally A. Guardado, C.S.R. * (708) 479-6664
2605
leave, if you could, just for the Hearing Officer, give us
on -- try to explain the relationship or the overlap
between BACT or LAER? I mean, you said something about
BACT can be LAER. Didn't you?
THE WITNESS: Yes.
MR. MERRIMAN: Just a simple question.
Ms. ANGELO: Very metaphysical.
MR. KIM: Gary's running for cover.
HEARING OFFICER WALLACE: Is it, apparently, not a
very short answer?
THE WITNESS: Yes.
Nobody can object to your questions.
I will give you sort of a general --
HEARING OFFICER WALLACE: Well, actually my question
is, why did you say BACT is LAER or BACT can be LAER?
THE WITNESS: Both of these are case -- You know,
BACT is a case-by-case determination. LAER is a
case-by-case determination.
You may come up with a circumstance where
BACT and LAER case-by-case determinations result in the
same conclusion. In that case, LAER would be the same as
BACT. BACT would be the same as LAER.
Sally A. Guardado, C.S.R. * (708) 479-6664
2606
There may be circumstances where LAER
results in something more stringent, than what is
determined to be BACT.
HEARING OFFICER WALLACE: Okay. That was simple
enough.
Thank you.
You may step down.
THE WITNESS: Thank you.
(The witness was excused.)
HEARING OFFICER WALLACE: Mr. Kim?
MR. KIM: Mr. Hearing Officer, I believe that is the
last of the witnesses we would call on Direct on our case
in chief.
Before we would rest, we did have some
things, housekeeping matters, that we do want to raise.
And you can take them up now, I suppose, or at the
conclusion of the hearing. But we wanted to make sure we
raised the issues.
And we would also, like, I guess, get
some kind of idea as to who and how many -- I guess who
would be called tomorrow as a rebuttal witness, and I
don't know, if it's at all possible, an expectation as to
Sally A. Guardado, C.S.R. * (708) 479-6664
2607
the time that that might take so we could possibly
coordinate some schedules.
HEARING OFFICER WALLACE: First things first. What
matters did you want to bring up?
MR. KIM: Well, there's a -- I'll tell you. I will
go through my laundry list and some of these, are,
obviously what we would discuss at the close of rebuttal.
But we had some concerns as to briefing.
Obviously, a briefing schedule will have to be worked out.
We have some considerations we wanted to
raise as to the time of the Agency's preparation of the
brief.
We feel it would be appropriate to allow
slightly longer time for the Agency's reply -- or response
brief, insofar as WSREC -- well, Petitioner in this case
-- the Petitioner in permit appeals has an opportunity to
file two pleadings. We have just the one. So we would
like to make sure we have as much time as possible to get
our one bite of the apple in.
Along those lines, as to briefing, when
you do set the briefing schedule, we would ask that the
mailbox rule not be applicable and that briefs be due on
Sally A. Guardado, C.S.R. * (708) 479-6664
2608
the date that the briefing schedule sets. And,
furthermore, that as far as delivery of those briefs, one
copy be provided both to the Attorney General's office
here in Chicago and also to the Agency's offices in
Springfield.
There are, I believe, two protective
orders that are still in effect.
We would certainly ask that those remain
in effect until the Board have an opportunity to -- had an
opportunity to consider them and make a ultimate ruling.
Certainly as to the document that's been identified as the
Mathur memorandum, and also to the permit appeal -- I'm
sorry, the permit manuals and the administrative manual
for the Bureau of Land.
Also, along the lines of a Protective
Order, we would ask that an order be entered such that
neither party would be allowed to initiate or propound
discovery during the period of briefing, discovery in the
second set of appeals, 96-155 and 156, such that the
parties would be allowed to focus primarily upon the
briefing of this case.
The Agency is still working under the
Sally A. Guardado, C.S.R. * (708) 479-6664
2609
time deadline for the filing of whether there's a second
case anyway, so we already have that obligation. But, we
would ask that both parties be -- essentially a moratorium
be set in place until after the briefing schedule is run,
before any discovery could be propounded.
Let's see.
I believe that the only other requests
that we wanted to bring to your attention would be
resolution of any pending matters as to pending motions
that would be before the Hearing Officer and exhibits that
have -- where the ruling for admittance of those exhibits
has been deferred.
And I wanted to make sure we've raised
these before we rest our case. You can address them now
or, I suppose, tomorrow at the end of rebuttal. I just
wanted to make sure we got these out.
HEARING OFFICER WALLACE: Thank you.
Do you wish to say anything right now?
MS. ANGELO: I prefer to -- I mean, as to some of
the matters, I have to look at a calendar anyway to figure
out what's going on and it seems better to wait until
tomorrow to deal with them.
Sally A. Guardado, C.S.R. * (708) 479-6664
2610
HEARING OFFICER WALLACE: All right.
In terms of rebuttal, we are going to
break today. Unless you want to put someone on today?
MS. ANGELO: No. We do have to break.
HEARING OFFICER WALLACE: All right. And are you --
Will you be ready to proceed tomorrow?
MS. ANGELO: Yes. What I anticipate tomorrow is
that we'll put Mr. Pierce on.
We need to go back and talk to
Mr. Richardson about his schedule, so I can't -- I'm not
in a position to say today, yet, when we would be able to
put him in or if we need to.
As far as how long Mr. Pierce will be
tomorrow, we can't imagine that it would take more than an
hour, hour and a half.
HEARING OFFICER WALLACE: For your Direct?
MS. ANGELO: For our Direct.
HEARING OFFICER WALLACE: All right. In terms of --
Maybe we should deal with some of this right now since we
actually have spare time.
Petitioner's Exhibit 30, I have reserved
ruling on. And the Agency's objection was that this was
Sally A. Guardado, C.S.R. * (708) 479-6664
2611
unsigned; is that correct?
MR. KIM: That's correct.
And, I guess, to go through it, we
believe certainly it was unsigned. We believe it was
never sent. And we don't believe it's relevant to the
case at hand.
MS. ANGELO: This was covered in the Request to
Admit Number 7.
HEARING OFFICER WALLACE: Okay. Petitioner's
Exhibit 30 is admitted
(Said document, heretofore marked
Petitioner's Exhibit No. 30 for
identification, was admitted into
evidence, to wit, as follows:)
HEARING OFFICER WALLACE: The next one I show is 32.
February 1st memo from Mr. Desai to Mr. Cobb. "The final
draft permit must be errorless," et cetera.
MR. KIM: I'm sorry. I believe the Agency's
objection on that document was that it was irrelevant. I
don't believe there is any testimony that's been provided
as to this.
MS. ANGELO: I'm sorry. I didn't hear.
Sally A. Guardado, C.S.R. * (708) 479-6664
2612
MR. KIM: I stated, I'm sorry, I wasn't aware of any
testimony that has been elicited since the time you
reserved your ruling that would have changed -- that would
have added any additional relevance.
HEARING OFFICER WALLACE: Okay. Petitioner's
Exhibit 32 is admitted.
(Said document, heretofore marked
Petitioner's Exhibit No. 32 for
identification, was admitted into
evidence, to wit, as follows:)
HEARING OFFICER WALLACE: The next one I show is 35,
a memo from Rich Hodges to Jim Cobb.
MR. KIM: There again, the Agency's position was
there was no relevance to this document. There was no
testimony as to the contents of the document.
MS. ANGELO: Well, it went to Cobb, the permit
reviewer. It demonstrates, I think, consistent with all
the rest of the testimony in the case, that all the way up
until February 22nd, the Agency was on track to issue
these Air permits. February 22nd and beyond.
February 23rd, seems to be the day everything fell apart.
MS. KROACK: Mr. Hodges isn't a permit analyst.
Sally A. Guardado, C.S.R. * (708) 479-6664
2613
He's merely an AQPS Section and reviewed the permit with
respect to whether they complied with that portion. We
haven't raised that in our denial. We're not alleging
that they didn't comply with the Air Quality Modeling
Requirements.
HEARING OFFICER WALLACE: This just goes to
modeling?
MS. ANGELO: Mr. Singer reminds me that this is one
of the very few things that was included in the original
record filed by the Agency.
HEARING OFFICER WALLACE: All right.
MS. KROACK: It is in the record. We agree.
HEARING OFFICER WALLACE: In that event, it's in
there anyway, so I would admit it as an exhibit.
Petitioner's Exhibit 35 is admitted.
(Said document, heretofore marked
Petitioner's Exhibit No. 35 for
identification, was admitted into
evidence, to wit, as follows:)
HEARING OFFICER WALLACE: The next one I show is 39?
MS. KROACK: That's the discussion we had this
morning and I believe testimony has established that the
Sally A. Guardado, C.S.R. * (708) 479-6664
2614
creation date was June 15th, 1995, four months --
HEARING OFFICER WALLACE: The Agency objected to
this; is that correct?
MS. KROACK: We objected to it because we didn't
believe it was created before February 27, 1995, and
that's what Mr. Cobb was testifying to this morning.
HEARING OFFICER WALLACE: Okay.
MS. ANGELO: Mr. Hearing Officer, as you can tell
from our discussion this morning, the testimony of
Mr. Cobb was inconsistent with what he had told us before
about this.
We do think it's curious that we suddenly
have a way of identifying a date on this document even
though when we were asking about dates earlier we were
told there was no way to do it.
It's clear that the document summarizes
material that was available as of the time of the permit
application in December '94 and should have been
considered by the Agency, whether or not it was.
And Mr. Dimond can provide for you the
comments that were made by Dr. Reed on this document who
indicated that it was something that he had considered in
Sally A. Guardado, C.S.R. * (708) 479-6664
2615
this review.
MR. DIMOND: Looking at --
HEARING OFFICER WALLACE: That's --
MS. KROACK: Can I respond?
HEARING OFFICER WALLACE: You're looking at his
deposition, right?
MS. ANGELO: That's right.
HEARING OFFICER WALLACE: That's outside the record.
MS. ANGELO: If we need to, we will call him and
have him say the same thing.
HEARING OFFICER WALLACE: I don't want Mr. Dimond
reading the deposition into the record at this point.
MS. KROACK: Could we just respond very quickly?
HEARING OFFICER WALLACE: Yes.
MS. KROACK: We object to that document because we
now can establish when it was created and, additionally,
the handwritten notes on it are Hank Nauer's who was not
called to testify with respect to those handwritten notes.
Secondly, the document that it summarizes
is Petitioner's Exhibit 126, which you've previously
admitted into the record, and that document if you apply
Ms. Angelo's with Best Evidence Rule, is the document that
Sally A. Guardado, C.S.R. * (708) 479-6664
2616
they need in the record, if they feel that they need it.
HEARING OFFICER WALLACE: I'm going to admit the
exhibit to the extent that it goes to Mr. Cobb's
credibility.
MS. KROACK: I don't believe Mr. Cobb ever testified
he couldn't establish when that document was dated. He
said he did not recall. It was Mr. Harmon who said he
couldn't date his documents.
HEARING OFFICER WALLACE: Without arguing what's
back three or four hearing dates ago, or even what
Mr. Cobb said, today, I think that it's been properly
established as going to that credibility in the hearing.
MR. KIM: So, as a matter of clarification, you are
admitting this, not as to the substance of the document
itself, but rather as to, again, like you said, the
question as to Mr. Cobb's testimony as to date of
preparation?
HEARING OFFICER WALLACE: Well, I'm admitting the
document. And if --
MR. KIM: I thought you were doing it for a limited
purpose. That's why I was trying to flush that out.
HEARING OFFICER WALLACE: It certainly is
Sally A. Guardado, C.S.R. * (708) 479-6664
2617
admissible, I think, as a document that he acknowledges
preparing. Whether the information is valid, based upon
the other document, that's a different story.
But, I think, it's certainly admissible.
MR. KIM: One last question then, before we
conclude, about that.
Does the admission -- Are we to take the
admission of that document as a finding on the part of the
Hearing Officer as to the credibility of Mr. Cobb's
testimony?
HEARING OFFICER WALLACE: Not at this time, no.
MR. KIM: Thank you.
(Said document, heretofore marked
Petitioner's Exhibit No. 39 for
identification, was admitted into
evidence, to wit, as follows:)
HEARING OFFICER WALLACE: Petitioner's Exhibit 57
and 58 are these manuals.
I'm going to admit both of those. I
guess I would renew -- I haven't changed it, so the
Protective Order concerning those two is still in effect.
MS. ANGELO: I think there was only a Protective
Sally A. Guardado, C.S.R. * (708) 479-6664
2618
Order on the one. Am I wrong on that?
MR. KIM: I believe we have always taken the
position that both documents need to be protected.
HEARING OFFICER WALLACE: That was my understanding.
MS. ANGELO: I think --
MR. SINGER: That's right.
HEARING OFFICER WALLACE: I caution the Agency, once
we drop these into the record, they are public documents
and there is no, you know, --
MR. KIM: I think we appreciate and recognize the
limits of the Protective Order.
HEARING OFFICER WALLACE: Okay. So 57 and 58 are
admitted.
(Said document, heretofore marked
Petitioner's Exhibit No. 57 & 58 for
identification, was admitted into
evidence, to wit, as follows:)
Sally A. Guardado, C.S.R. * (708) 479-6664
2619
HEARING OFFICER WALLACE: Petitioner's Exhibit 73 is
"How does the waste-to-energy stack up."
MS. ANGELO: This was, I believe, provided by the
Agency in one of its supplements to the record.
Some of us seem to remember it's from
Mr. Romaine's office.
HEARING OFFICER WALLACE: The piles.
MS. KROACK: Actually, I believe that one was part
of Mr. Cobb's.
MR. ROMAINE: I gave it to him.
MS. KROACK: There you go.
MS. ANGELO: So, if it was provided by Mr. Cobb,
then, it clearly, as far as we know, came from what was
viewed as the record from the very beginning of the
process.
MS. KROACK: I don't think there has been any
testimony to that and no one testified as to the contents
of the article, but we did include it in our discovery,
and, then, subsequently, put all this stuff in discovery
into the record.
HEARING OFFICER WALLACE: All right. Do you still
object to the admission of Petitioner's Exhibit 73?
Sally A. Guardado, C.S.R. * (708) 479-6664
2620
MS. KROACK: Yes.
MR. KIM: Relevance.
MS. KROACK: Relevance.
HEARING OFFICER WALLACE: Okay.
MS. ANGELO: If you would like me to address the
relevance, I can.
HEARING OFFICER WALLACE: No. That's all right.
I'm going to admit it for whatever it
might be worth.
(Said document, heretofore marked
Petitioner's Exhibit No. 73 for
identification, was admitted into
evidence, to wit, as follows:)
HEARING OFFICER WALLACE: I show the next one as
being Petitioner's Exhibit 112.
MR. KIM: The Agency's position on that document, I
believe, that it was an unsigned document and we don't
feel -- it's, as such and by the content, not relevant to
the case.
MS. ANGELO: I'm sorry. "Unsigned" I heard, but
what was the rest?
MR. KIM: Unsigned document, and because of that and
Sally A. Guardado, C.S.R. * (708) 479-6664
2621
the contents of the document, we do not feel it is
relevant to the case.
MS. ANGELO: Well, the contents, I think, are right
on relevance.
This accompanied the letter that went to
-- This was sent at the same time as the letter which went
to U.S. EPA which said this was a complete application and
it meets all standards and we'd love U.S. EPA's comment on
it.
It's certainly relevant.
As far as the Agency's view about whether
it was signed or not signed, I don't think that has
anything to do with the text. The fact it was prepared by
Don Sutton who said these things about the application.
MR. KIM: Mr. Sutton, I believe, testified that he
did not actually prepare that document. And, furthermore,
again, because it is an unsigned document, I believe,
actually, Ms. Angelo's statement that it was sent at all
is incorrect.
MS. ANGELO: I'm sorry. I'm told that Mr. Cobb
prepared it for Mr. Sutton, so it's what Mr. Cobb is
saying, at this point in time.
Sally A. Guardado, C.S.R. * (708) 479-6664
2622
MR. KIM: I don't believe there has been any
testimony established that that document was ever sent
from the identified originator to identified recipient.
MS. ANGELO: It doesn't matter whether it was sent
or not.
MR. KIM: I'm just responding to the statement that
you made that it was sent at the same time of a different
document.
MS. ANGELO: If I said that, I was misspeaking.
I don't know that it's clear it was not
sent. But the fact that's important, I think, is that
this was prepared at this time for this purpose to notify
people of the sending of a document to U.S. EPA. And it
shows, just as we've said on other points, everyone on the
Agency was on track for issuing this permit up until
February 23rd.
HEARING OFFICER WALLACE: I'm going to admit it,
although, again, I don't think that it says what you are
arguing, Ms. Angelo. But I will admit it into the record.
(Said document, heretofore marked
Petitioner's Exhibit No. 112 for
identification, was admitted into
Sally A. Guardado, C.S.R. * (708) 479-6664
2623
evidence, to wit, as follows:)
HEARING OFFICER WALLACE: All right. The Agency had
one other.
MR. KIM: Is that the --
HEARING OFFICER WALLACE: I showed the ordinance. I
was reserving ruling on the ordinance.
MR. KIM: I'm sorry. I was going to say along with
our arguments as to why that document should be admitted
into evidence. It also represents a formal action taken
by an elected body and, certainly, the Board, at the very
least, would be able to take administrative or judicial
notice at this time.
MS. ANGELO: Is this the ordinance we are talking
about now?
MR. KIM: Yes. Respondent's Exhibit 3.
MS. ANGELO: I don't think the problem with the
ordinance is relevance, because its clearly siting related
and this is not a siting based denial.
I guess I would also add that if the
Agency intends to use this, and I don't know how they
intend to use it, but if they intend to use it in their
briefing to discuss siting, adequacy of siting and so
Sally A. Guardado, C.S.R. * (708) 479-6664
2624
forth, then, I think that use would be improper. And I
don't know how to protect myself from that, without trying
to figure out how to address whatever imaginary issues
that there may be in there.
So, it certainly puts us in a difficult
spot to know what to do with an admitted document that has
nothing, apparently, to do with the denial. The scope of
the denial in this case.
Would it be premature to ask how the
Agency intends to use this?
MR. KIM: Well, I think it probably would.
HEARING OFFICER WALLACE: Okay. Mr. Kim, this
ordinance at least the document you submitted, is the
Village's approval of the siting application?
MR. KIM: That's correct
HEARING OFFICER WALLACE: And, therefore, this
confers jurisdiction on the Agency to proceed per the
jurisdiction on the Board. Are you going to argue that
this ordinance is now inapplicable?
MR. KIM: No. No, again. And I understand that we
have had this discussion before.
The Agency's position is, it's not that
Sally A. Guardado, C.S.R. * (708) 479-6664
2625
the siting which was granted by the Villages of Summit or
McCook is deficient. What we are saying is that the
siting that those bodies granted is not sufficient when or
for the purposes that are being offered by WSREC,
vis-a-vis their permit applications.
The siting approvals are fine. What we
question is, basically, what WSREC is doing with those
siting applications.
And, obviously, the ordinance -- I agree
I don't think we are questioning the jurisdiction of the
Village of Summit to enter that ordinance. As a matter of
fact, we are saying that that was certainly -- we have no
problem with that.
We would like to, basically, use that
document as evidence of what the Village of Summit did do,
which would be, in fact, grant the local siting requested.
MS. ANGELO: What I'm hearing is that they intend to
use it to argue the scope of siting at this site, which is
not an issue that's been addressed at all in this
proceeding so far, and which, you know, if that goes in, I
don't know -- We have to respond to it.
I don't know what we would do to respond
Sally A. Guardado, C.S.R. * (708) 479-6664
2626
to it now, but it seems to me that we have -- we cannot
leave that sitting there.
MR. KIM: Well, again --
HEARING OFFICER WALLACE: I'm curious. How does the
Agency proceed with any permit application in a 172 case
without this to begin with?
MR. KIM: We don't. As a matter of fact, the McCook
ordinance, the corresponding ordinance is in the Land
permit application, so we don't need to worry about trying
to get that in, because that document has already been
admitted into evidence.
If, for some reason, that, the Summit
ordinance, had been included with the Bureau of Land
application, we wouldn't need -- we obviously, wouldn't
need to make that request either.
They are generally considered to be part
of the application. Talking to you right now, I don't
know why that particular ordinance was not included in the
permit application. But, certainly the Village of
Mc Cook's was, appropriately so.
And the siting ordinance granted by the
Village of Summit provides the proof that we would, I
Sally A. Guardado, C.S.R. * (708) 479-6664
2627
agree, feel is necessary for us to consider the
application as one that had gone through local siting.
What I'm saying, again, is -- And perhaps
it's a fine line that's not appreciable. But what I'm
saying again is that our concern is not that the Village
of Summit did not grant -- did not follow the appropriate
steps as to their grant of local siting. That's not the
Agency's domain. It hasn't been for a long time. And we
don't want it to go there.
What we are saying is, WSREC's use of
that siting ordinance, the grant of local siting, is at
question in our mind and we do feel that that is not
consistent with what has been represented in the permit
application. And we would like to be able to use the
ordinance to reflect what the local body, the local unit
of government did.
HEARING OFFICER WALLACE: Okay.
MR. KIM: Essentially, using that as the baseline.
HEARING OFFICER WALLACE: Well --
MR. KIM: And again, I know, it is --
HEARING OFFICER WALLACE: I think that that's not an
issue that is even before the Board and I'm not sure that
Sally A. Guardado, C.S.R. * (708) 479-6664
2628
it's an issue that can be placed before the Board.
Because this ordinance shows that siting
was done and, therefore, you're going to argue something
completely different in the context -- not in the context
of a denial point and something that is essential being
raised now at the Board level. I don't --
MR. KIM: We are not trying to shoehorn that
application or that ordinance into our denial points.
We agree, acknowledge and certainly feel
restrained to the relevant case law that states that the
Agency's denial points are framed by the denial letter.
HEARING OFFICER WALLACE: All right.
MR. KIM: What we are saying is, there are other
issues outside of the denial letter which we feel are of a
special concern and raise, in our minds, jurisdictional
matters that must be placed before the Board in the event
that the Board asks the Agency to take some action on
permitting.
This is exactly what happened in
Grigoleit. What we are trying to do is to forestall that
kind of thing by trying to raise the issue as soon as
possible, so we don't end up in a situation where this
Sally A. Guardado, C.S.R. * (708) 479-6664
2629
kind of issue comes up in what is, probably, an untimely
manner.
MS. ANGELO: This is a permit appeal, and it's
subject to the scope set for permit appeals in the
statute. And what I'm hearing is that some way the Agency
believes it's appropriate to raise non-permit appeal
issues in a permit appeal.
I don't know that I've ever seen that
done before, but, it's inconsistent with the record that
it was before the Agency. It's inconsistent with the
record to be provided to the Board.
I think the practicalities of what it
does to our situation demonstrate why it can't be the
right approach.
It means that there is this document now
floating around in the record that the Agency is
apparently going to argue from, that, I don't know, I'm
left to try and respond to, even though it was not part of
the denial, even though it was not part of the record, but
somehow it's going to -- the Agency feels it's going to
bar the Board from granting the relief to which we believe
we're entitled.
Sally A. Guardado, C.S.R. * (708) 479-6664
2630
I'm just not aware of any basis in law,
for saying, this is a permit appeal, and we know this is
not a denial point, but we want the Board to consider it
anyway. And it seems to me that if they want to do that,
it's not appropriate to say, Mr. Hearing Officer, make
this part of the record so we can do it.
If they want to try and do that, and I
think it's totally inappropriate for them to do it, they
just ought to make their argument and try to deal with it
that way.
But don't force me to try and deal with
it because it's part of the record before the Board of a
permit appeal.
HEARING OFFICER WALLACE: I think that the -- I
guess it can go either way -- or can't go both ways.
So, I don't see that that's a proper
issue before the Board in this permit appeal, and,
therefore, if that's the reason you want Respondent's
Exhibit 3 admitted into evidence, it is not admitted.
MR. KIM: Could I then, request, that --
HEARING OFFICER WALLACE: It will be included in
these boxes.
Sally A. Guardado, C.S.R. * (708) 479-6664
2631
MR. KIM: And similar to what was previously denied
by -- as to Respondent's Exhibit 1 and 2, I think those
were basically denied and the Agency asked that those be
considered as part of an offer of proof.
Would you include that Respondent's
Exhibit Number 3 in that group as well? I'm asking that
you would.
It would then be incumbent upon the
Agency, if it decided to make that argument, to make that
offer of proof before the Board.
HEARING OFFICER WALLACE: I don't think it's
necessary. I think you can, if you wish to argue that it
should have been admitted and, therefore, you can make an
argument from it, I think you can do that just as a motion
to the Board -- you know, preserve that in your brief.
Bring that up. This doesn't need to be in an offer of
proof.
MR. KIM: But your decision today does not restrict
us from so raising the issue in the manner you've
described, in briefing before the Board?
HEARING OFFICER WALLACE: Well, if I could I would.
MR. KIM: So it's understood.
Sally A. Guardado, C.S.R. * (708) 479-6664
2632
HEARING OFFICER WALLACE: Because I certainly feel,
as a Hearing Officer, that's not an issue in this case.
And to the extent that that's a ruling of mine, you can
take exception to the Board, obviously.
MR. KIM: Well, again, I --
HEARING OFFICER WALLACE: So, I mean, insofar as
Respondent's Exhibit 1, 2, and 3, deal with this issue of
the potential, as you phrase it, siting jurisdiction, you
know, they have not been admitted into evidence in this
record. And you can argue that they were wrongly denied
admission, I guess, if you want.
MR. KIM: Thank you.
I believe then, the last document that is
pending would be Respondent's Exhibit Number 6.
HEARING OFFICER WALLACE: Okay.
MR. KIM: Which is the document that Mr. Cobb
testified to this morning.
We have not intended to offer to admit
this into evidence, but given your ruling on Petitioner's
Exhibit 39, we ask that it be admitted, as well?
HEARING OFFICER WALLACE: It is admitted.
(Said document, heretofore marked
Sally A. Guardado, C.S.R. * (708) 479-6664
2633
Respondent's Exhibit No. 6 for
identification, was admitted into
evidence, to wit, as follows:)
HEARING OFFICER WALLACE: All right.
Did I miss any exhibits that you know of?
MS. KROACK: I can't find it.
MR. KIM: You've got our six.
MS. KROACK: We have a lot of exhibits.
MS. ANGELO: I'm told that we're, at least, not
clear in our records as to whether 124 was admitted.
HEARING OFFICER WALLACE: You're right.
MR. KIM: What's 124?
MS. ANGELO: It was the NOx Trading Program Design.
I guess I would suggest that when this
initially came up there was an objection to it.
We've since had the Solid Waste Report,
which, when it came up, the Agency recognized that it,
being a publication of the Agency, that it was appropriate
that -- without conceding relevance, that it was
appropriately something that the Agency had available and
could have considered.
I would suggest that the similar handling
Sally A. Guardado, C.S.R. * (708) 479-6664
2634
is appropriate for this document.
HEARING OFFICER WALLACE: 124 is the Draft Proposal
Designs for NOx Trading System.
MS. KROACK: Right.
Our objection is that was a draft
proposal that never went forward. It wasn't relied upon
by anyone. There was no testimony to that effect. And we
asked for disclosure of the documents they intended to
introduce and that document wasn't included in their list
of exhibits.
HEARING OFFICER WALLACE: Petitioner's Exhibit 124
is not admitted.
MS. ANGELO: Mr. Hearing Officer, I don't understand
the objection to it, being a draft, since it was
distributed to the public and it has as much status as a
draft as the EPA document that they provided earlier for
us today, that they indicated Mr. Romaine uses frequently.
MS. KROACK: But it doesn't have the same status
because it for a program that never went for forward.
It was the beginning of a design of a
program, Agency Regulatory Program that the Agency felt it
may need to implement and it was determined that we
Sally A. Guardado, C.S.R. * (708) 479-6664
2635
didn't. We never moved forward with the proposal.
MS. ANGELO: And that wasn't the reason why the
document was provided.
The document was used as indicating that
the Agency and WSREC have all the information that is
necessary to indicate that availability of NOx offsets of
the type that WSREC proposed to use here. Specifically,
those from Commonwealth Edison.
The Agency's suggestion that no one
really knew whether Commonwealth Edison had offsets
available is contradicted by the inventory that's attached
to the back of this document.
MS. KROACK: No Agency person said that we didn't
know whether Commonwealth Edison had NOx offsets
available.
The question was the specificity of those
offsets with respect to the WSREC project, and whether we
were comfortable with Commonwealth Edison's commitment to
move forward with those offsets in the event they had to
go -- they had to actually provide them.
That's a different question than the one
Ms. Angelo just posed.
Sally A. Guardado, C.S.R. * (708) 479-6664
2636
HEARING OFFICER WALLACE: I'm not going to admit
124.
MS. ANGELO: We apparently also have some question
about 11 and 12? Or 12 and 13?
12 and 13 were the original June
applications. I don't know what your records show.
HEARING OFFICER WALLACE: I thought they were
admitted.
MS. ANGELO: Okay. That's fine with us, obviously.
MS. KROACK: We have 11 as Procedures for a
Coordinated Permit Review.
MS. ANGELO: I think I got the numbers wrong. I
meant 12 and 13.
MS. KROACK: We have them as admitted.
HEARING OFFICER WALLACE: Okay. If they're not, 12
and 13 are admitted. They're the June '94 Air
applications, Volume 1 and 2.
Now you scare me. There wasn't an
Exhibit 11, was there?
MR. SINGER: No. We never used that number.
Should we provide a list?
HEARING OFFICER WALLACE: No. I think we have them
Sally A. Guardado, C.S.R. * (708) 479-6664
2637
all.
MR. SINGER: We skipped a couple numbers in there
and they might appear in the files.
HEARING OFFICER WALLACE: I didn't think I missed
any.
All right.
Briefing schedule we will reserve until
we have calendars.
Well, I guess we could handle that one.
Do you have any objection to Mr. Kim's
request on 155 and 156? I don't think there is any
ongoing discovery right now anyway, is there?
MS. ANGELO: There isn't, but I would like to look
at a calendar and find out what our deadlines are before I
agree to it and have no discovery until the end of the
briefing period.
HEARING OFFICER WALLACE: Did you waive that out
until August or something?
MS. ANGELO: We did until --
Mr. SINGER: August 10th or thereabouts.
MS. ANGELO: So I would just prefer to check the
dates to make sure that whatever kind of time bonds we are
Sally A. Guardado, C.S.R. * (708) 479-6664
2638
putting ourselves in, we understand, before we do that.
HEARING OFFICER WALLACE: Does that wrap everything
up today?
(No response.)
HEARING OFFICER WALLACE: Thank you.
We will reconvene here tomorrow morning
for rebuttal.
(Whereupon, the hearing was continued
until March 7, 1996 at the hour of
9:30 o'clock a.m.)
Sally A. Guardado, C.S.R. * (708) 479-6664