Microsoft Word - R06-25 081406 hearing transcript

ILLINOIS POLLUTION CONTROL BOARD

August 14th, 2006

IN THE MATTER OF:

)

PROPOSED NEW 35 ILL. ADM.

) R06-25

5 CODE 225 CONTROL OF EMISSIONS ) (Rulemaking-Air)

FROM LARGE COMBUSTION SOURCES )

6 (MERCURY),

)

TRANSCRIPT OF PROCEEDINGS held in the

9 above-entitled cause before Hearing Officer

10 Marie E. Tipsord, called by the Illinois Pollution

11 Control Board, pursuant to notice, taken before

12 Julia A. Bauer, CSR, RPR, a notary public within and

13 for the County of Cook and State of Illinois, at

14 the James R. Thompson Center, 100 West Randolph,

15 Assembly Hall, Chicago, Illinois, on the 14th day of

16 August, A.D., 2006, commencing at 1:03 p.m.

L.A. REPORTING (312) 419-9292

1 A P P E A R A N C E S:

ILLINOIS POLLUTION CONTROL BOARD:

Ms. Marie Tipsord, Hearing Officer

Ms. Andrea S. Moore, Board Member

Mr. G. Tanner Girard, Acting Chairman, IPCB

Mr. Anand Rao, Senior Environmental Scientist

Mr. Nicholas J. Melas, Board Member

Mr. Thomas Fox, Board Member

Mr. Thomas Johnson, Board Member

8 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY:

Mr. John J. Kim

Mr. Charles E. Matoesian

Mr. Jim Ross

Mr. Christopher Romaine

SCHIFF, HARDIN, LLP,

6600 Sears Tower

Chicago, Illinois 60606

(312) 258-5646

BY: MS. KATHLEEN C. BASSI

MR. STEPHEN J. BONEBRAKE

MR. SHELDON A. ZABEL

McGUIRE, WOODS,

77 West Wacker Drive

Suite 4100

Chicago, Illinois 60601-1815

(312) 849-8100

BY: MR. DAVID L. RIESER

ENVIRONMENTAL LAW & POLICY CENTER,

35 East Wacker Drive,

Suite 1300

Chicago, Illinois 60601-2110

(312) 795-3708

BY: MS. FAITH E. BUGEL

L.A. REPORTING (312) 419-9292

1 A P P E A R A N C E S: (Continued)

ENVIRONMENTAL LAW PROGRAM, CHICAGO LEGAL CLINIC

205 West Monroe Street

Fourth Floor

Chicago, Illinois 60606

(312) 726-2938

BY: MR. KEITH I. HARLEY

ALSO PRESENT:

Ms. Mary L. Frontczak, Peabody Energy

Ms. Dianna Tickner, P.E., Peabody Energy

Mr. Larry Kuennen, Engineer III, Fuel and

Environmental Excellence Group

Michael W. Murray, Ph.D., Staff Scientist,

National Wildlife Federation

Anne E. Smith, Ph.D., CRA International

Mr. Michael Menne, Vice President,

Ameren Corporation

Ms. Connie Newman

Ms. Kathleen Crowley

Ms. Deirdre K. Hirner

L.A. REPORTING (312) 419-9292

HEARING OFFICER: Good afternoon. My

name is Marie Tipsord, and I've been

appointed by the Board to serve as hearing

officer in this proceeding entitled In The

Matter Of Proposed New 35 Ill. Adm. Code 225

Control Of Emissions From Large Combustion

Sources (Mercury). The Docket Number is

R06-25.

To my left is Dr. Tanner Girard,

and to my right is Andrea Moore, the two

Board members assigned to this matter. Also

present at the far end on my right is Board

Member Nicholas J. Melas, and the far left is

Board Member Thomas Johnson. In addition, to

Andrea Moore's right, Tim Fox, her attorney

assistant is here, and also to Dr. Girard's

left is Anand Rao from our technical staff.

Also present today is Connie Newman; and, in

addition, we have Kathleen Crowley, who is

our senior attorney. And also a bunch of

thanks to Don Brown for his assistance today.

Today's hearing is the first day

of several during which the Board will hear

from witnesses concerning the proposal filed

L.A. REPORTING (312) 419-9292

with the Board by the Illinois Environmental

Protection Agency, EPA. We will proceed

day-to-day until all the prefiled testimony

has been heard through Friday, August 25th,

if necessary. We will adjust the schedule if

as necessary, and may, in fact, finish before

that date as the hearing progresses.

Starting tomorrow we will begin at 9:00 a.m.

and proceed until close at 5:00 p.m. Some

days it will be a little shorter, some days a

little longer. Practically speaking, at this

point, we have to be out of this building by

6:00, so we're not going to go much later

than 5:30. Now, if it becomes necessary to

go late next week, there are steps we can

take if we have to do that. Thursday,

August 17th is a Board Meeting. On that day,

we'll meet at 9:00 a.m., we'll recess around

10:30 until after lunch. Again, this

schedule is subject to change based on how we

are proceeding. As to when we will start

next Monday, I think we will revisit that

later in the week once we see how fast we are

moving.

L.A. REPORTING (312) 419-9292

During breaks, I am available to

answer any procedural questions. You may

also direct any procedural questions to

Mr. Fox and Mr. Rao. Any members of the

press should speak to Connie Newman. I want

to emphasize that the Board and staff cannot

discuss the substance of the proposal off the

record, nor can we discuss any substantive

issue. Substantive items should be raised

during the hearing. If you're not sure

whether your issue is a substantive issue,

please ask me, and we can always place your

issue on the record.

Also this rulemaking is subject to

Section 27(b) of the Environmental Protection

Act. Section 27(b) of the Act requires the

Board to request the Department of Commerce

and Economic Opportunity to conduct an

economic impact study on certain proposed

rules prior to adoption of those rules. If

DCEO chooses to conduct the economic impact

study, DCEO has 30 to 45 days after such

request to produce a study of the economic

impact of the proposed rules. The Board must

L.A. REPORTING (312) 419-9292

then make the economic impact study, or

DCEO's explanation for not conducting the

study, and make that available to the public

at least 20 days before a public hearing on

the economic impact of the proposed rules.

In accordance with Section 27(b)

of the Act, the Board requested, by letters

dated March 16th, 2006, and May 10th, 2006,

that DCEO conduct an economic impact study

for the above-referenced rulemakings. On

June 26th, 2006, the Board received DCEO

response. DCEO indicated that it does not

have the resources to perform economic impact

studies on this rulemaking. The Board

received the second response letter on June

29th, 2006, which also indicated that DCEO

would not be performing an economic impact

study. Copies of both those letters are

available at the top of the stairs.

Before we start, I have a couple

of housekeeping matters to discuss.

First, Ms. Bassi, on August 7th, you sent an

e-mail adding references to the testimony of

Krish Vijayarakhavan. Do you want to add

L.A. REPORTING (312) 419-9292

those now? (Inaudible.)

THE REPORTER: When you turn your head

like that, I cannot hear you at all.

HEARING OFFICER: Oh, I'm sorry.

MS. BASSI: I don't have those

additional references with me physically at

this moment. So if we may just wait until he

comes. It will be next week.

HEARING OFFICER: That's fine. I know

the e-mail comes to everybody, but you can

actually file in the clerk's office. Also

you sent a request to substitute the first

page of questions for Michael Murray, and I

will grant that request. Also, Mr. Kim, you

filed a motion to file your questions in

Instanter.

MR. KIM: Yes.

HEARING OFFICER: That motion is moot

as the Board received the questions

electronically.

MR. KIM: Thank you very much.

HEARING OFFICER: I think that's all

of the housekeeping matters at this point.

This is the second set of hearings

L.A. REPORTING (312) 419-9292

to be held in this proceeding. The purpose

of these hearings is to hear prefiled

testimony and allow anyone who wishes to ask

questions. The prefiled testimony will be

taken as if read and entered as an exhibit.

I do understand that some witnesses wish to

briefly summarize their testimony, and I will

allow that, but I reserve the right to speed

things along if I feel the summary has gotten

too long. After the witness has finished the

summary, we will proceed with questions. We

will start with prefiled questions, but I

will allow follow-up to the questions by

anyone.

Anyone that asks a question,

however, I do ask that you raise your hand

and wait for me to acknowledge you. After

I've acknowledged you, please state your name

and whom you represent before you begin your

questions. Please speak one at a time. If

you speak over each other, the court reporter

will not be able to get your questions on the

record.

We held a prehearing conference

L.A. REPORTING (312) 419-9292

and established the order of witnesses;

however, since then, I received some requests

for change. First, Ms. Bassi asked to

reorder the witnesses being offered by

Midwest Generation and Dynegy. Second,

Mr. Forecade asked that the witnesses for

Dominion Kincaid be presented next week.

Therefore, my current order of witnesses,

which is subject to change at any request, is

Michael Murray. It will follow with Ameren's

Joint Statement, then we will have Michael

Menne and Anne Smith, Dianne Tickner, J.E.

Cichanowicz.

MS. BASSI: Cichanowicz.

HEARING OFFICER: Cichanowicz, Ishwar

Prasad Murarka, William DePriest, James

Marchetti.

MS. BASSI: Marchetti.

HEARING OFFICER: Marchetti. And then

during the second week, we'll start with

Krish --

MS. BASSI: Vijayaraghavan.

HEARING OFFICER: I'll spell it,

V-I-J-A-Y-A-R-A-G-H-A-V-A-N, and I am going

L.A. REPORTING (312) 419-9292

to try very hard to get these right. Please

forgive me in advance. Gail Charnley, Peter

Chapman, Richard McRanie, C.J. Saladino, and

Andy Yaros.

MS. BASSI: The only, I guess,

reservation we would have about this order is

that Peter Chapman is available Tuesday

morning, and we are sure he can be done

Tuesday morning, but we may --

HEARING OFFICER: That's fine.

MS. BASSI: -- need to adjust.

HEARING OFFICER: That's fine.

MS. BASSI: Thank you.

HEARING OFFICER: Please note that any

questions asked by a Board member or staff

are intended to help build a complete record

for the Board's decision and not to express

any preconceived notion or bias.

At the back of the room are

sign-up sheets for the notice and service

list. If you wish to be on the service list,

you will receive all pleadings and prefiled

testimony in this proceeding. In addition,

you must serve all of your filings on the

L.A. REPORTING (312) 419-9292

persons on the service list. As I noted in

my March 16th, 2006 hearing officer order,

with the advent of COOL, if you are filing a

public comment and not on the service list,

you need not serve that comment on the

service list.

If you wish to be on the notice

list, you will receive all Board and Hearing

Officer orders in the rulemaking. If you

have any questions about which list you wish

to be on, please see me at a break. As I

said, you may also sign up on the COOL list.

Dr. Girard, is there anything

you'd like to add?

DR. GIRARD: Yes. Good afternoon. On

behalf of the Board, I welcome everyone. Can

you hear okay up there?

On behalf of the Board, I welcome

everyone to the second round of hearings on

the governor's proposal to reduce mercury

emissions from coal-fired electrical plants

in Illinois. The Board thanks all the

participants who are working very hard to

make the extensive record in this proceeding.

L.A. REPORTING (312) 419-9292

Your efforts are greatly appreciated. We

look forward to the testimony and questions

over the next two weeks. Thank you.

HEARING OFFICER: Ms. Moore, do you

have anything you'd like to add?

MS. MOORE: No, thank you.

HEARING OFFICER: With that, I think

we're ready to begin with Mr. Murray.

Ms. Bugel, do you have something you want to

add?

MS. BUGEL: Yeah, I just have one

comment for the record. In Mr. Murray's

testimony, there are two incorrect citations.

There is one citation to a document that was

not used at all, and then there is one

incorrect citation. Unfortunately, we did

not bring with us those exact corrections,

and I just wanted to advise the Board that we

would be filing, you know, a memo or a note

to correct those items.

HEARING OFFICER: Those items cited,

are those included in the reference documents

we received?

DR. MURRAY: The one that was not

L.A. REPORTING (312) 419-9292

correctly cited was the 2003 is included in

that -- should be in that packet, and the

other one that -- there was one that was

cited that wasn't referenced in the

testimony, and so you don't need that.

HEARING OFFICER: Thank you. Then

would you like to make any comment before we

swear in Mr. Murray?

MS. BUGEL: I don't think we are going

to do an introductory summary of Mr. Murray's

testimony today.

HEARING OFFICER: Then let's have

Mr. Murray sworn in.

(Witness sworn.)

HEARING OFFICER: Do you have a clean

copy of Mr. Murray's testimony?

MS. BUGEL: I have one copy of it.

HEARING OFFICER: That's fine. If

someone doesn't have a copy, we'll make

copies. If there's no objection, we'll enter

Mr. Murray's prefiled testimony as Exhibit

No. 74. Seeing none, that's marked as

Exhibit No. 74.

MS. BUGEL: Ms. Tipsord, I'm sorry. I

L.A. REPORTING (312) 419-9292

think I just gave you the wrong --

HEARING OFFICER: Oh, you gave me

questions.

MS. BUGEL: I gave you questions.

HEARING OFFICER: Mr. Murray, are you

going to summarize your testimony, or do you

want to just go right to --

DR. MURRAY: We can just go straight

to questions.

HEARING OFFICER: I think it works out

quite well if we have you read the questions,

and then answer it, and then we'll have

follow-up.

MR. ZABEL: Has the witness been

sworn?

HEARING OFFICER: Yes.

DR. MURRAY: Okay. The first question

is, did you have a role in the September 2003

workshop organized by the Society of

Environmental Toxicology and Chemistry

(SETAC)? If so, what was your role?

Yes, I have served on the Steering

Committee for the meeting and follow-up work,

including finalization of the book resulting

L.A. REPORTING (312) 419-9292

from the meeting. The book's title is

Ecosystem Responses to Mercury Contamination:

Indicators of Change, that's the tentative

title, but most likely will be the final

title. Editors are Harris R., Krabbenhoft,

D.P., Mason, R.F., Murray, M.W., Reash, R.J.,

and Saltman, T., published by Society of

Environmental Toxicology and Chemistry in

Pensacola, Florida, as well as Taylor &

Francis in New York, and the book is in press

now. In addition, an article of which I was

a co-author, based on the results of the

meeting, was published in 2005, and that's

Mason, R.F., Abbott, M.L., Bodaly, R.A.,

Bullock, O.R., Driscoll, C.T., Evers, D.,

Lindberg, S.E., Murray, M., Swain, E.B.,

2005. The title is Monitoring the Response

to Changing Mercury Deposition in

Environmental Science and Technology,

Line 39, Number 1, Pages 16A to 22A.

The purpose of the meeting was to

identify and recommend indicators of mercury

contamination in the environment and how they

might be utilized in the development of

L.A. REPORTING (312) 419-9292

national mercury monitoring network. Most of

the work at the meeting, and subsequently,

involved deliberations and drafting in four

areas involving environmental mercury:

Airsheds and watersheds; sediments and water;

aquatic biota; and wildlife. I was involved

with the wildlife group.

Activities by the Steering

Committee members included identifying

potential candidate participants taking part

in the meeting and working with co-authors

and SETAC in finalizing manuscripts,

including editing, and with editing, included

aiming for consistent use of terms in the

various chapters. I worked closely with the

lead author of the wildlife chapter,

Dr. Marti Wolfe, and co-authors in finalizing

that chapter, but also contributed technical

reviews and editing consistency reviews to

each of the other chapters, and there were

also peer reviews of all chapters, external

peer reviews.

Okay. Part B of that question is,

what is the relationship between a mercury

L.A. REPORTING (312) 419-9292

monitoring network and identifying indicators

of mercury contamination in wildlife?

Any monitoring network will

involve measuring parameters, so it is

important to clearly identify the parameters

of interest, the factors that can affect

them, and the overall goals of the monitoring

program. Monitoring for mercury in wildlife

is not a routine matter, given the number of

potential matrices to sample, such as blood,

feathers, eggs or fetus/young, fur, feathers,

or internal organs, as well as the multiple

factors, such as sex, age, seasonal factors,

body conditions, as well as level of the

mercury and methylmercury in prey that can

influence mercury exposure in wildlife. In

addition, one might expect different biotic

responses to changes in mercury loadings in

different regions, due to factors such as

surface water pH, organic carbon content,

sulfate levels or other factors that can

influence mercury methylation, and thus

greater biomagnification potential in aquatic

food webs. So development of the network

L.A. REPORTING (312) 419-9292

should consider these factors as well as the

sensitivity to methylmercury among different

wildlife species across taxa. In particular,

those groups that have been studied most

extensively and are thought to be most at

risk from methylmercury exposure --

HEARING OFFICER: Mr. Murray, could

you slow down just a little bit.

DR. MURRAY: I'm sorry.

THE WITNESS: So I'll restate the last

sentence. So development of the network

should consider these factors as well as

sensitivity to methylmercury among different

wildlife species across taxa. In particular,

those groups that have been studied most

extensively and are thought to be most at

risk from methylmercury exposure, including

fish-eating mammals and birds. And that's

question one.

HEARING OFFICER: Mr. Bonebrake,

before you do that, I do want to note that

these are prefiled questions from Dynegy and

Midwest Generation. Go ahead.

MR. BONEBRAKE: My name is Steve

L.A. REPORTING (312) 419-9292

Bonebrake, and I'm with the law firm Schiff,

Hardin. I just have a couple of follow-up

questions. Dr. Murray, the monitoring

network that you just referred to, is that an

existing network?

DR. MURRAY: No, this is -- the

purpose of the meeting was to develop

basically a framework for a new national, or

potentially even continental scale,

monitoring network in the U.S. There's

currently no existing mercury monitoring

network really anywhere that measures all of

the parameters of interest in terms of how

the environment will respond to changes in

mercury releases. So there's a mercury

deposition network for web deposition, but

there's no national network that monitors

biota or wildlife fish atmospheric mercury

deposition, all of these kind of integrated,

and so that was the purpose. This meeting

was to put together -- identify indicators of

mercury contamination of the environment, and

what would go into a framework for a national

network, basically, recommendations to

L.A. REPORTING (312) 419-9292

agencies, federal agencies, for how it would

be constructed.

MR. BONEBRAKE: And if I understood

you correctly in your answer, you also

referred to a number of factors that affect

the rate of methylation; is that correct?

DR. MURRAY: Correct.

MR. BONEBRAKE: Are you aware,

Dr. Murray, of any studies in Illinois waters

regarding the presence of the various factors

that you mentioned and the methylation rates

in Illinois waters?

DR. MURRAY: No, I'm not. There have

been a number of the studies in the

literature for a number of years now, for a

couple of decades at least, on the factors

such as -- that I mentioned, such as pH and

organic carbon, even things like that

percentage of wetlands in the watershed of a

water body that can affect methylmercury

production.

To my knowledge, most of those

studies have taken place in temperate lakes a

little bit farther north, Wisconsin,

L.A. REPORTING (312) 419-9292

Minnesota, parts of New England, Canada,

Ontario and in Europe and other countries,

but I'm not aware of studies that have

investigated in detail those factors and the

influence on methylmercury's production in

Illinois waters.

HEARING OFFICER: Question number two.

DR. MURRAY: Generally in your

testimony, when you say mercury, do you mean

methylmercury; or do you mean methylmercury

only when you specifically use that word?

It depends. In discussion of

sources and general environmental cycling,

I'm generally referring to mercury alone,

mainly inorganic mercury, which in this

context would include elemental mercury in

the atmosphere. In discussions of the

exposure effects in wildlife, I am generally

referring to methylmercury, as that was the

form either utilized in laboratory studies or

measured or assumed to dominate in the

tissues and field studies given that

methylmercury is in the from that

biomagnifies in aquatic food webs.

L.A. REPORTING (312) 419-9292

Concerning the brief discussion on seed

dressings, some seeds were treated with

mercury-containing preservatives, which may

have been methylmercury compounds, other

alkylmercury compounds, or arylmercury

compounds, such as phenylmercuric acetate.

Such applications have been phased out in

many countries, including the U.S. and

countries of the European Union.

HEARING OFFICER: Question number

three.

DR. MURRAY: Is the form of mercury

taken up by non-piscivorous birds, such as by

ring-necked pheasants, methylmercury?

It varies. The reference in my

testimony to the die-offs in earlier decades

was in the context of avian exposure to

mercury via consumption of mercury-containing

seed dressings. In the case of the Swedish

contamination cases, involving ring-necked

pheasants and rooks, the seed dressings were

alkylmercury compounds, not methylmercury

compounds, other alkylmercury compounds

besides methylmercury, but both of these can

L.A. REPORTING (312) 419-9292

be toxic to wildlife. As I mentioned, a

number of the countries, including the U.S.,

phased out the use of the mercury-containing

seed dressings, according to the United

Nations Environment Programme --

THE REPORTER: What was the end of

that sentence?

DR. MURRAY: According to the United

Nations Environment Programme, Global Mercury

Assessment. Avian exposure to organic

mercury via this route is likely much lower

in those regions today that have phased out

use of mercury seed dressings. In the case

of recent research into exposures of

insectivorous birds to mercury referenced in

my testimony, such as Bicknell's thrush,

studied in the paper published by

Rimmer, et al, in 2005, it is presumed that

the form of mercury in their diets is mostly

methylmercury.

And Part A of the question, if

not, why not? I dealt with that question.

B, what form is it? I dealt with

that above previously.

L.A. REPORTING (312) 419-9292

C, if so, what is the source of

that methylmercury? Again, I dealt with that

previously.

HEARING OFFICER: Ms. Bass, do you

have a follow-up?

MS. BASS: (Nonverbal response.)

HEARING OFFICER: Go ahead.

DR. MURRAY: And then, D, if the form

of the mercury is not methylmercury, are

there any risks to humans who consume such

birds?

The greater risks to humans

consuming game birds, such as pheasants,

would be for birds containing elevated levels

of organic mercury, whether methylmercury or

other organic forms, the latter potentially

being the case in any areas where alkyl or

arylmercury compounds either left

contaminated legacy sites or are still in

use, such as in other countries. Because use

of mercury-containing seed dressings ended in

the U.S., it is unlikely that this source of

organic mercury would lead to elevated

exposures in either insectivorous birds or

L.A. REPORTING (312) 419-9292

humans consuming them.

However, agency staff in at least

one state, namely Utah, have measured

elevated levels of mercury above EPA's

methylmercury water criterion of 0.3

milligrams per kilogram in tissue, in two

duck species consumed by humans -- northern

shovelers and common goldeneyes -- and

established a consumption advisory based on

these findings. These ducks were feeding on

contaminated prey in marshes along the Great

Salt Lake, and these prey levels are

presumably significantly higher than one

would find in aquatic insects in Illinois.

However, I am not aware of assessments of

mercury levels in game birds in Illinois to

confirm that levels across all species are

indeed below levels of concern.

HEARING OFFICER: Ms. Bassi.

MS. BASSI: I now have three

questions. The first one is, I believe you

said that the insectivorous birds, those that

are eating insects, are probably uptaking

methylmercury; is that correct? Is that what

L.A. REPORTING (312) 419-9292

you said?

DR. MURRAY: Well, we know that they

would presumably be taking up some

methylmercury. There are not a lot of data

on methylmercury levels in insects. Most of

the data are from aquatic insects from

systems in Canada and Ontario, in particular,

and in particular, in reservoirs, and there

they found different levels of methylmercury,

but in some cases methylmercury is the

dominant form of mercury in the insects.

There's much less information on insects in

certain habitats.

MS. BASSI: So if these are the

aquatic insects, is it reasonable to presume

or to assume that the methylmercury is coming

from -- because they are eating things that

are in the water that is already methylated.

DR. MURRAY: Right, right. So it

would be, typically, methylmercury that's in

their prey. In some cases, they could take

it up directly from the water, but more

likely, it's of the other prey.

MS. BASSI: My second question is, I

L.A. REPORTING (312) 419-9292

believe you said that the danger -- there is

some danger or level of exposure to humans

who eat birds, who have eaten seed dressings

that contain various species of mercury,

including methylmercury and those other ones

that I'm not going to attempt to pronounce.

What is the danger to humans from

eating birds containing mercury levels that

are levels other than methylmercury? And

this is based on my understanding that the

form of mercury that was dangerous, if you

will, to humans is methylmercury form as

opposed to other forms.

DR. MURRAY: A key issue is the -- how

mercury behaves in the body, and

methylmercury is taken up quite effectively

in the intestine of humans and mammals in

general; and so that's the form of particular

concern. There's been much less work, to my

knowledge, on other organic mercury

compounds, such as ethylmercury, the form of

mercury in vaccines. That's a whole separate

issue. There have been a number of studies

on potential health risks, in particular to

L.A. REPORTING (312) 419-9292

children, with that issue, but that form is

definitely a concern. There really aren't

any, to my knowledge, toxilogical or

biological reasons that we would not concern

with ethylmercury, given that we have

concerns with methylmercury. They're very

same similar structurally, the content.

And it's the same thing for

phenylmercuric acetate and organic mercury

compound, to my knowledge, there's been very

little on the uptake, the metabolism, the

excretion of that form of mercury in humans,

but again, there's -- it seems plausible that

one would be -- if one is concerned about

methylmercury, and we are for a good reason,

that we would be concerned about some of the

other organic mercury forms as well.

MS. BASSI: And my third question, I

believe you said or implied that Great Salt

Lake has higher levels of methylmercury than

water bodies in Illinois. Why would that be?

DR. MURRAY: Well, there are a lot of

questions about that. It's not that clear.

Great Salt Lake is obviously a very unusual

L.A. REPORTING (312) 419-9292

water body, it's a very saline water body

inland in the U.S. It's not clear where

the -- to my knowledge, where the mercury is

coming from, how it's getting methylated.

It's a fairly shallow water body. I think in

a lot of ways the conditions are not

necessarily considered to be ideal for

methylmercury production, but somehow

methylmercury is being produced or mercury

has been taken up by insects, by the shrimp

and then taken up by ducks. It's just

something that has been really investigated

over the past few years, I think mostly by

the state agency staff out there, and I don't

think people have a good handle on why the

levels are elevated.

MS. BASSI: Thank you.

HEARING OFFICER: Mr. Zabel.

MR. ZABEL: Dr. Murray, is

ethylmercury introduced into the environment

or formed into the environment?

DR. MURRAY: That's a good question.

I'm not aware of any studies showing that

ethylmercury can be produced by bacteria in

L.A. REPORTING (312) 419-9292

the environment. I know methylmercury can be

naturally produced. I guess it's conceivable

that ethylmercury can be produced, but I'm

just not aware of any evidence to indicate

that, but it has been, as I mentioned, used

extensively as a preservative in vaccines.

MR. ZABEL: So Ethylmercury, which is

formed in the environment from other mercury

compounds, so ethylmercury has to be

introduced into the environment?

DR. MURRAY: I would assume, yes.

MR. ZABEL: Thank you. Is

alkylmercury formed naturally in the

environment?

THE WITNESS: Again, beyond

methylmercury, I'm not aware of other forms

of organic mercury, but I don't know if there

are any reasons why some of those forms could

not be created in the environment.

MR. ZABEL: There's just been no

studies you're aware of of that form at

issue?

THE WITNESS: Correct.

HEARING OFFICER: Question number

L.A. REPORTING (312) 419-9292

four.

DR. MURRAY: In your testimony, you

state that mercury contamination is an

additional stress that could be delaying

recovery of certain bird populations in

Southern Florida that are significantly

impacted by other factors. What are the

other factors that stress and significantly

impact these bird populations in Southern

Florida?

As with any wading birds, habitat

quality is important for the South Florida

wading bird population. The Everglades

system, in particular the hydrology has been

heavily altered by human activity for

decades, and restoring more natural flow

conditions is a key objective of current

restoration efforts. Wading bird populations

for a number of species decreased

dramatically in the Everglades through the

20th Century, following large-scale

hydrological alterations. Wading birds rely

on certain water depths for optimal foraging

conditions, and changes, in depth or timing,

L.A. REPORTING (312) 419-9292

to optimal levels can lead to decreased

foraging success for these birds. For

example, the water levels remained high in

early 2005 following 2004 hurricane activity,

and while recession lead to lower levels in

the spring, heavy rains in March and April

left higher than optimal levels that

persisted until the start of the summer rainy

season. While populations of five species of

focus have increased over the past 15 years,

researchers and managers note that the system

is still not fully understood, and conditions

are still not optimal for full recovery of

these populations, with questions remaining

about what can be done to really optimize

these conditions, and the South Florida Water

Management District produces annual reports

on wading birds, and have noted some of the

challenges.

HEARING OFFICER: Question number

five.

DR. MURRAY: On the fourth page of

your testimony, you refer to

mercury-containing seed dressings causing

L.A. REPORTING (312) 419-9292

bird mortality. What type of mercury was

this?

As I noted previously, in the case

of the Swedish contamination cases of

ring-necked pheasants and rooks, the seed

dressings were alkylmercury mercury

compounds.

What were the mercury levels found

in the birds that died?

I'm not sure of those levels, but

presumably, since they were eating --

consuming seeds that had high levels of

alkylmercury in them, initially, I assume

that the levels would have been quite high.

And laboratory studies on toxicity of mercury

compounds would give also a rough estimate of

what those levels would likely have needed to

be to cause acute mortality on a short-term

basis.

Later in the same paragraph, you

refer to ecologically relevant levels.

Please define that term, numerically if

possible, and compare to the levels in

connection with the seed dressings incident.

L.A. REPORTING (312) 419-9292

By ecologically relevant levels,

I'm referring to the concentrations of

mercury that would be seen currently in the

environment in locations not impacted by

point sources, whether current or historical

point sources. For example, mean

methylmercury concentrations in fillets of 13

freshwater fish species in lakes in the

Northeastern U.S. --

THE REPORTER: Can you slow down a

little?

MR. MURRAY: Oh, sure.

For example, mean methylmercury

concentrations in fillets of 13 freshwater

fish species in lakes in the Northeastern

U.S. ranged from about 0.17 to 0.75

milligrams per kilograms or parts per

million. This was published in paper by

Kamman, K-A-M-M-A-N, et al, in 2005.

In addition, it's noted in the

technical support document for this

rule-making process, large mouth bass mercury

concentrations in Illinois have been measured

and were shown to range from 0.01 to 1.4

L.A. REPORTING (312) 419-9292

parts per million with an average of about

0.19 parts of million, so lower than the --

at the low end of the concentration range

seen for species in the Northeastern U.S.

The largest majority of these

samples would have come from water not

contaminated by current or historic point

sources. Concerning typical liver mercury

levels, I'm not aware of recent studies of

mercury contamination pertaining to

ring-necked pheasants in the wild. In one of

the studies I cited in my testimony on

Florida wading birds, Sundlof, et al, in '94,

reported liver mercury levels that ranged

from 0.29 to 18.84 in seven species, with

averages for three study areas of 0.44, 0.55

and 2.63 parts per million in the liver.

HEARING OFFICER: Go ahead.

MR. ZABEL: Just so I'm clear, the

last numbers you gave, those were not in the

seed dressing cases of pheasants, were they?

DR. MURRAY: No, they were not.

MR. ZABEL: Do you have those numbers?

DR. MURRAY: No.

L.A. REPORTING (312) 419-9292

MR. ZABEL: Those would be acute

numbers?

DR. MURRAY: Right.

MR. ZABEL: And just for the record,

do pheasants eat large mouth bass?

DR. MURRAY: No.

MR. ZABEL: Thank you.

DR. MURRAY: I was talking about -- I

was just indicating in that case some of the

freshwater fish tissue that had been sampled

for mercury.

MR. BONEBRAKE: You mentioned at the

beginning of your answer, I think you

mentioned the type of mercury at issue was

alkylmercury, and in your earlier answer, as

I understood it, you described it as a

category that mercury included, but was not

limited to methylmercury?

DR. MURRAY: Right.

MR. BONEBRAKE: Was methylmercury at

issue in the Swedish study?

DR. MURRAY: I don't believe it is.

My recollection was, it was more of an

ethylmercury compound, but I'm not positive

L.A. REPORTING (312) 419-9292

on that.

HEARING OFFICER: Question number six.

DR. MURRAY: On the fifth page of your

testimony discussing loons, you referred to

elevated mercury in eggs and prey fish. Is

that loon eggs? Yes.

You refer to a decline in egg

laying in areas with elevated methylmercury

concentrations in eggs and prey fish. Was

the author noting a coincidence or alleging a

causation?

The author, Barr, in 1986,

described the inverse relationship between

reproductive success and mercury

contamination, i.e., increased percentage

success in territories that were increasingly

distant from the point source mercury

contamination. These lower levels were seen

in loon tissue and in prey, namely yellow

perch, both within the area termed C1 of six

lakes downstream from the chlor-alkali plant

thought to be the principal mercury source in

the region, as well as in other lakes

downstream or upstream from the most

L.A. REPORTING (312) 419-9292

contaminated areas.

If the latter, did the author test

for other contaminants? Yes, in fish.

If so, did he/she find any?

Barr, in 1986, reported, quote,

generally low levels, unquote, of the other

toxicants measured in fish in three of the

study regions, including lindane, heptachlor,

aldrin, heptachlor epoxide, dieldrin, and

PCBs. The author noted, quote, non-mercury

toxicants can be discounted as a major factor

in the failure of loons in the

Wabigoon-English system subjected to high

levels of mercury contamination, end quote.

If so, did he/she exclude those as

possible causative or contributive factors?

Yes, as noted above, the author

did not believe that the other contaminants

were at levels sufficient to cause

reproductive harm in the loons. However, the

author did note that earlier research had

indicated that the methylmercury has the

potential to act in an additive or

synergistic manner with organichlorine

L.A. REPORTING (312) 419-9292

compounds.

HEARING OFFICER: Question number

seven.

DR. MURRAY: Is the form of mercury

stressing birds in Southern Florida always

methylmercury, i.e., do other forms of

mercury cause adverse effects?

All forms of mercury are toxic,

depending on the route of entry and the dose.

As noted previously, the piscivorous birds

are generally thought to be at greater risk

of exposure to elevated levels of

environmental mercury, because methylmercury

biomagnifies to a greater extent than

inorganic mercury, and thus the prey

piscivorous species will tend to be higher in

methylmercury than inorganic mercury. In

addition, methylmercury is absorbed more

readily in the intestine than inorganic

mercury, as I mentioned earlier.

HEARING OFFICER: Question number

eight.

DR. MURRAY: Are belted kingfishers a

species of blue herons? See fifth page of

L.A. REPORTING (312) 419-9292

your testimony, second paragraph, fifth

sentence. Your testimony suggests that

belted kingfishers are species of blue

herons.

This paragraph indicates examples

of other birds for which mercury exposure,

and in some cases effects, data have been

obtained. The sentence in question was

written in a condensed manner to indicate

that great blue herons and belted kingfishers

had been subject to mercury exposure studies.

They are clearly different species, not even

being in the same order, Ciconiiformes in the

case of the great blue heron, and

Coraciiformes in the case of the belted

kingfisher.

If not, what the did the

researchers find regarding blue herons?

Wolfe and Norman, in 1998,

reported that no correlation between tissue

mercury concentrations and distance from a

major mercury source in the region, namely a

mercury mine near Clear Lake, California, nor

any difference in reproductive success

L.A. REPORTING (312) 419-9292

between the contaminated site and nearby

sites that were presumably at lower

contamination levels. The researchers also

noted that they did not have formal controls

or a matched reference population in their

study; at least one of the two studies at

which growth rates were compared was done in

a region, namely known as Nova Scotia, known

for elevated methylmercury levels in fish and

wildlife. Also, average blood methylmercury

concentrations in the herons reported by

Wolfe and Norman in 1998 at each of the three

sites were in or near the impacting, in

quotes, range as identified by Evers, et al,

in 2003, and this range was 1.3 to 2.0 parts

per million.

HEARING OFFICER: Question number

nine.

DR. MURRAY: Your testimony suggests

that some animals are exposed to mercury by

eating insects. How do insects take up

mercury?

Uptake of mercury at lower levels

of the food web is still not fully

L.A. REPORTING (312) 419-9292

understood. In aquatic habitats, insects

take up inorganic and methylmercury both from

water and via diet. As with higher levels in

the food web, diet appears to be particularly

important. In measurements in a flooded

reservoir in Ontario, methylmercury

concentrations in predator insects, i.e.,

insects feeding on other animals, were nearly

three-fold higher than levels in so-called

collectors or shredders, that is insects that

feed on plant tissue or decomposing organic

matter, and that's referenced in a paper by

Hall, et al, in 1998. In addition, factors

such as pH, dissolved organic carbon and

other water chemistry parameters can

influence methylmercury production, and thus

uptake into aquatic biota, including insects,

lower on the food web. An example is a study

by Watras, et al, in 1998, that looked at

these parameters.

There has been very little study

of uptake of mercury at low levels of

terrestrial food webs, as I noted earlier.

Rimmer, et al, in 2005, and Miller, et al, in

L.A. REPORTING (312) 419-9292

2005, noted that methylmercury is found in

plant leaves, though it is a very small

fraction of total mercury, and it is not

clear if this represents mercury produced in

the plant or taken up from the atmosphere or

via the routes. This leaf matter can serve

as a source of methylmercury when consumed by

insects.

Part B, what form of mercury is

absorbed by insects such that it can be

absorbed by other animals that consume

insects?

Again, both inorganic and

methylmercury can be taken up by insects.

Because methylmercury is excreted more

slowly, this form would tend to biomagnify,

that is from insects to a predator, to a

greater extent than inorganic mercury. In a

recent study on mercury in Bicknell's thrush,

that is Rimmer, et al, in 2005, it is

presumed that the form of mercury in their

diets is mostly methylmercury. In this

study, the researchers did not measure

mercury content of the prey, but they did

L.A. REPORTING (312) 419-9292

note that the proportion of methylmercury in

insects can vary significantly, from about 20

to 25 percent in detritivores, that is,

again, the insects feeding on decomposing

plants issue, to high levels, such as around

95 percent in dragonflies eating other

insects.

HEARING OFFICER: Question number 10.

DR. MURRAY: Why would there be

greater uptake of mercury in insectivorous

passerines' wintering areas than in their

breeding areas?

Mercury uptake will be a function

of quantity of food consumed and mercury

concentration and form, that is inorganic

mercury or methylmercury, in the prey items.

Again, the study by Rimmer, et al, in 2005,

noted higher methylmercury blood levels in

Bicknell's thrush at several wintering sites

in Hispaniola and Cuba, but there were a

relatively small number of samples at each

site. The authors noted that the lack of

information on factors in the wintering

habitat could influence methylmercury levels,

L.A. REPORTING (312) 419-9292

and so they did not have any good explanation

for why there were elevated levels at those

sites.

HEARING OFFICER: Dr. Murray, before

you go on, I just want to note the question

actually says would there be greater take up

of mercury. I'm assuming they're the same,

uptake, take up. I just want to be sure.

Okay. Thank you.

DR. MURRAY: Do such birds generally

breed in the spring and/or summer?

Bicknell's thrush breed in late

spring/early summer. In Vermont, the

breeding usually begins in May, with the

initiation of most clutches in June, and

fledging from early July to early August,

according to a report by Rimmer, et al, in

2001.

One would assume that

insectivorous would winter in warmer areas

where insects continue to be active during

the winter months; is that correct? Yes.

Where would such wintering areas

be?

L.A. REPORTING (312) 419-9292

This will vary depending on the

species. For the Bicknell's thrush, passing

the subject to the Rimmer, et al, paper, the

wintering habitat is the Greater Antilles,

including Cuba and Hispaniola, and this is

from the Rimmer, et al, report in 2001. And

then by contrast, for another thrush, the

Swainson's thrush, the wintering areas can

range from Mexico to as far south as

Argentina. So knowing -- the wintering areas

vary quite widely, and thus, the potential

for methylmercury exposure will vary

depending on where they are and conditions,

in part, specific to those sites, to those

wintering sites.

HEARING OFFICER: Question number 11.

DR. MURRAY: In your testimony

regarding the studies of elevated mercury

levels in mink, you refer to the elevated

mercury levels, e.g., 5 ppm in the diet, in

one study, and then to another study that

reported extensive death of brain cells at

high levels of methylmercury.

What type of the mercury does the

L.A. REPORTING (312) 419-9292

first reference in this sentence to elevated

mercury levels mean? Methylmercury.

Is there an ecologically relevant

level for mercury in the diet?

As I noted previously, in

Northeastern U.S., mean methylmercury

concentration in fillets of 13 freshwater

fish species in lakes ranged from about 0.17

to 0.75 milligrams per kilogram or part per

million. That's, again, the Kamman, et al,

paper in 2005, and as I noted also, the

Illinois large mouth bass had concentrations

ranging from 0.01 to 1.4 with a mean of 0.19

according to the technical support document.

If so, how does it compare to the

5 ppm?

These levels are obviously lower

than the high experimental level used in the

study cited in Heinz in 1996.

In the other studies using lower

doses, what were those doses?

The study of Wobeser, et al, in

1976, utilized chow spiked with methylmercury

chloride at concentrations of 0, 1.1, 1.8,

L.A. REPORTING (312) 419-9292

4.8, 8.3 and 15 milligrams per kilogram.

Histopathological damage, such as pale livers

and nervous system lesions, was seen at the

1.1 milligram per kilogram dose, and anorexia

and ataxia, or lack of muscle coordination,

were seen after to two to three months at the

1.8 milligram per kilogram dose level.

Are you aware of the fish tissue

sampling that has shown methylmercury levels

as high as 5 ppm in Illinois fish? No.

What were the high levels of

methylmercury in the second study you

referred to?

This is also referring to the

Wobeser, et al, 1976 study. The highest

exposure level was 15 milligrams per

kilogram.

Are you aware of any fish tissue

sampling that has shown methylmercury levels

in Illinois fish as high as the level

reported in the second study you referred to

that considered high levels of methylmercury?

No. But even in the earlier

study, namely Wobeser, et al, in 1976, as

L.A. REPORTING (312) 419-9292

noted above, subclinical effects were seen

beginning at a dietary concentration of

1.1 milligram per kilogram, which is closer

to levels that would be expected in some

Illinois fish.

HEARING OFFICER: Mr. Zabel?

MR. ZABEL: As I understood you, you

said 0.014 to 0.019 in Illinois fish; is that

correct?

DR. MURRAY: The range was 0.01 to

1.4.

MR. ZABEL: I'm sorry. The last one

was 1.4?

DR. MURRAY: Right, and the average

was 0.19 for large mouth bass.

MR. ZABEL: The average was 0.19?

DR. MURRAY: Right.

MR. ZABEL: The next subpart of that

question, as I understand, you were saying

that adverse conditions were seen at a level

of 1.1; is that right?

DR. MURRAY: Right.

MR. ZABEL: And it's two levels of

magnitude higher; is that correct?

L.A. REPORTING (312) 419-9292

DR. MURRAY: One order of magnitude

higher than the mean of the large mouth bass

in Illinois.

MR. ZABEL: Thank you.

HEARING OFFICER: Question number 12.

DR. MURRAY: You refer to recent

studies reporting an association between

methylmercury in wild mink and other

neurochemical receptors in the brain. What

do you mean by an association?

In a study of wild mink trapped in

the several locations in Canada, muscarinic

acetylcholine receptor density and ligand

affinity both increased with total and

methylmercury levels in the brain. These are

receptors for the neurotransmitters in the

brain and indicate -- and the researchers

found association between the levels of these

receptors and methylmercury that they

measures. Other research has shown that

methylmercury can affect neurotransmitter

pathways, such as synthesis, storage or

release of neurotransmitters, re-uptake or

clearance mechanism.

L.A. REPORTING (312) 419-9292

Was this coincidence or causation?

Again, previous work has shown

that methylmercury can alter

neurotransmission pathways, so the authors

noted that, though there was a correlation,

it is also biologically plausible.

Did these studies find biochemical

changes in the mink and otters?

In the dosing study on captive

mink, up to 2 ppm methylmercury, Basu, et al,

in 2006, did not find effects on brain

choline acetyltransferase, acetylcholine and

choline transporter associated with

methylmercury exposure. However, the

researchers did find higher densities of

muscarinic cholinergic receptors in several

parts of the brain at several doses, in a

pattern -- in a similar pattern with the

findings in wild mink. It was published by

Basu, et al, in 2005. And similar findings

were observed by the same group in wild

otters, although the trend was decreasing

muscarinic acetylcholine receptor density and

ligand affinity with increasing mercury

L.A. REPORTING (312) 419-9292

exposure. So it's a different trend with

what they saw with the mink, and was a

separate paper by Basu, et al, in 2005. In

addition, negative relationships between

dopamine-2 receptor density and total mercury

were observed in both wild mink and otters.

Again, both in papers by Basu, et al, in

2005.

You say these changes can be

associated with clinical effects. Were

clinical effects observed in the mink and

otter?

No, but as the authors note, the

cholinergic and dopaminergic systems are

involved in a number of neurobehaviors,

including learning and memory, motor

functions, temperature regulation and

cognition. This is referenced in Basu, et

al, in the second 2005 paper.

HEARING OFFICER: Excuse me.

Mr. Bonebrake, do you have some follow-up?

MR. BONEBRAKE: In your response to

Subpart C, you refer to exposure level of two

parts per million, and then later in your

L.A. REPORTING (312) 419-9292

answer, you refer to several different

exposure levels. Did I understand your

answer correctly?

DR. MURRAY: Right.

MR. BONEBRAKE: What were those

several different exposure levels?

DR. MURRAY: The levels used in the

dosing study of the captive mink were

nominal, the concentrations were zero -- this

is parts per million, 0, 0.1, 0.5, 1 and 2

parts per million in the diet.

MS. BUGEL: For the record, can you

please indicate what you're reading from.

DR. MURRAY: Oh, sorry, and this is

from Basu, et al, paper in 2006, which is in

the testimony.

MR. BONEBRAKE: And the effects you

were referring to, are those associated with

the highest two parts per million dosing

level?

DR. MURRAY: In some cases, the

maximum response was seen at actually lower

levels. For example, in the basal ganglia

and in the brain stem, the maximum responses

L.A. REPORTING (312) 419-9292

and the changes in receptor density were at

either the 0.5 or the 1 ppm level, not at the

highest exposure level, and this, again, is

Basu, et al, 2006.

MS. BUGEL: Are there two different

Basu, et al, in 2006?

DR. MURRAY: Just one for 2006, and

then two for 2005.

HEARING OFFICER: Please continue,

Dr. Murray, with your answer.

DR. MURRAY: And then Part E, were

other factors, such as other chemicals,

excluded from causation? Not to my

knowledge.

If so, how? Again, I'm not sure

in terms of the studies of the wild mink or

otter whether these other factors were --

other possible chemicals, as far as I know,

they were not assessed, and to my knowledge,

they weren't. So there could be no

assessment of the potential effects of those

on the response variables.

HEARING OFFICER: Question number 13.

DR. MURRAY: Your testimony states

L.A. REPORTING (312) 419-9292

that while a number of studies have shown a

decline in deposition in the past several

decades, at least in some sediment cores,

contemporary deposition rates are still

thought to be well above pre-industrial

values, indicating the importance of human

activities.

Are you aware of any studies,

including studies of the tissue of fish in

museums, that show that fish tissue levels

are not increasing over time even if

deposition levels are?

One study I'm aware of is Amrhein

and Geis, published in 2001, which reported

inconsistent results in comparing fresh

yellow perch caught in 1988 in Wisconsin

lakes to archived museum samples from 1927,

showing two lakes with an increase in

mercury, one lake with a decrease in mercury,

and two lakes showed very little change

between the two periods. But there are

methodological issues that remain to be

resolved, including any effect on

concentration of storage in alcohol versus,

L.A. REPORTING (312) 419-9292

for example, freezing, and until

methodological issues are resolved with

analyzing museum samples, monitoring of fresh

fish tissue would be the optimal means for

assessing trends in fish tissue mercury

concentrations. And, to my knowledge, there

are -- there have been no, kind of, ongoing

monitoring programs measuring mercury in fish

that go back, say, like, six or

seven decades. There are programs that have

been monitoring for several decades, and

there's one part in Canada I'm aware of, and

then some state health departments or state

agencies have been monitoring fish looking at

trends over the past, say, couple -- two or

three decades, but to my knowledge, that's

the longest database we would have on mercury

in fish tissue in the U.S. or Canada.

HEARING OFFICER: Question number 14.

DR. MURRAY: Do you agree that some

level of methylmercury was present in fish

tissue prior to the industrial resolution?

Yes.

Do you contend that some level of

L.A. REPORTING (312) 419-9292

injury occurred to fish and animals as a

result of that pre-industrial level of

methylmercury in fish tissue?

That is hard to know. Fish and

fish-eating wildlife presumably evolved

mechanisms for detoxifying mercury to some

extent, and this might possibly involve

selenium, for example. So they may have

generally been able to deal with the mercury

exposures prior to the human alteration of

the global mercury cycle. On the other hand,

natural activities that changed mercury

exposures, for example, if there is damming

of a river that submerged plants and

potentially increased methylmercury

production in that location, this could

conceivably lead to increased exposures of

fish or wildlife above a toxic threshold in

that area. At the same time, increases in

mercury mobilization by human activity have

much more likely increased exposures more

globally as compared to pre-industrial

exposures.

HEARING OFFICER: Question number 16.

L.A. REPORTING (312) 419-9292

DR. MURRAY: With respect to your

testimony regarding the potential harm to

fish for mercury exposure, what is the form

of the mercury to which the fish studied were

exposed?

Studies have investigated exposure

to both inorganic, for example, mercuric

chloride compounds, as well as organic

mercury, such as methylmercuric chloride

exposures.

At the sites where there were very

high mercury exposures, at sites contaminated

by direct discharges, what other contaminants

were in the discharges?

This sentence in my testimony is

mainly referring to controlled studies at

exposures that would be seen at sites heavily

contaminated by points source discharges,

such as mercury cell chlor-alkali plants. At

such sites, there could be other contaminants

present as well.

What was the source type of the

discharges, such as industrial, municipal

wastewater treatment plant, agricultural,

L.A. REPORTING (312) 419-9292

run-off collection, et cetera?

Sites that are heavily

contaminated by point source discharges

include mercury cell chlor-alkali plants and

gold mining operations. In the U.S.,

high-level ongoing contamination is not

common, fortunately; typical effluent or

run-off concentrations will be much lower

than levels seen at sites of historic

contamination or major spills or releases,

but these lower levels can still contribute

mercury to water bodies that are not

currently meeting water quality standards.

What is a more typical

environmental exposure for fish?

Again, fish tissue in New England

lakes were found to average between about 0.2

and 0.75 ppm mercury. Concentrations over

1.0 part per million are occasionally seen in

some Midwestern water bodies, and as I noted,

concentrations in large mouth bass are 1.4

parts per million have been -- were reported

in the TSD.

Do these typical levels vary from

L.A. REPORTING (312) 419-9292

state to state?

Typical levels vary more by water

body in part on variables such as pH,

dissolved organic carbon, amount of wetland

in the watershed, as I noted previously, but

can vary regionally as well. For example,

there are often higher levels of fish

methylmercury in the more acidic, organic

carbon rich lakes in Northern Minnesota than

some other parts of the region.

How did you determine these

typical levels?

Again, some levels in the

Northeastern U.S. -- and I keep citing the

Northeastern U.S. study because they -- the

Kamman, et al, 2005, because they compiled

thousands of data points from a number of

different databases in that assessment, so

it's a pretty good representative of

concentrations in that part of the country,

and in Southeastern Canada that -- for the

various species. I'm not aware of such a

database for Illinois fish or for many other

states in the Midwest, and again, there is

L.A. REPORTING (312) 419-9292

the large mouth bass stated in the TSD.

What is an environmentally

relevant concentration of methylmercury?

Again, in terms of fish tissue,

this would range in the northeast, in terms

of mean levels from about 0.2 to 0.75 part

per million, based on the mean concentrations

in the 13 species in the Northeastern U.S.

In Illinois waters, the means of large mouth

bass is more like about 0.19 part per million

so the typical concentrations are going to be

lower, down to 0.1 or lower, and occasionally

up over 1 part per million in large mouth

bass.

HEARING OFFICER: Mr. Bonebrake.

MR. BONEBRAKE: You've mentioned a

couple times now a high number, I think, of

1.4 parts per million of the large mouth bass

population in Illinois; is that correct?

DR. MURRAY: Correct.

MR. BONEBRAKE: Do you know where that

particular fish -- what body of water it was

found?

DR. MURRAY: No, I'm not positive.

L.A. REPORTING (312) 419-9292

MR. BONEBRAKE: Do you know if there's

any uncertainty at this point in time

regarding the validity of that number?

DR. MURRAY: It's always possible that

you've got an invalid number due to various

reasons, in particular, contamination. I

think that kind of number, if you look at the

databases of methylmercury levels in fish in

EPA's national listing of fish and wildlife

database, you'll occasionally see numbers up

above that one part per million level. And

in particular, in the northeast, sometimes

you see the mean levels that approach that.

So if the mean levels are, say, 0.7 or 0.8

part per million, obviously, you're going to

have individual fish well above that,

including above one. So it's possible that

it resulted from contamination, but more

typically, the concern with contaminated

samples is in measuring, say, water -- water

concentrations with the mercury, because the

concentrations are so much lower, it's easier

to have contamination that leads to an

elevated level than in fish tissue where the

L.A. REPORTING (312) 419-9292

concentrations are higher and there's a

little less concern about various results

that are due to contamination.

MR. BONEBRAKE: Did you read

Gorachev's (phonetic) testimony in this

matter?

DR. MURRAY: No, I did not.

HEARING OFFICER: I want to note for

the record for people who will read the

transcript that Dr. Murray has also provided

the references that are cited in his

testimony, and they have been filed with the

Board and are available through the Board's

website in a filing for August 8th and August

14th, and there's well over 200 pages of

reference material that has been included in

his records, so I just want to note that.

Are there any questions for Dr. Murray?

MS. BUGEL: We are going to have a few

questions, but we'd like just a short break

for Counsel to confer before questioning.

HEARING OFFICER: Okay. Well, it's a

little early, but let's take about a

ten-minute break.

L.A. REPORTING (312) 419-9292

(Whereupon, a break was taken,

after which the following

proceedings were had.)

HEARING OFFICER: Let's go back on the

record.

MS. BUGEL: I do have just two

follow-up questions, and then Mr. Harley is

going to have two follow-up questions.

Dr. Murray, referring back to

your -- question 1(b), you provided an answer

to question 1(b) that discussed factors that

can influence mercury methylation, and a

question was asked of you whether there were

any studies of Illinois waters to identify

the factors, and your answer, I believe, was

no; is that correct?

DR. MURRAY: Correct.

MS. BUGEL: And then I would like to

just ask you, are the studies from outside of

Illinois regarding the factors that effect

methylation still applicable to Illinois?

DR. MURRAY: Yeah, I mean, one of the

goals, obviously, with science is to come up

with models that explain phenomena that are

L.A. REPORTING (312) 419-9292

generalizable, that are applicable in other

settings beyond the subject, the area of

focus of a particular study. So as I noted,

in a lot of the detailed biogeochemistry

studies of mercury have taken place in

Wisconsin and Minnesota and New England and

Ontario and other countries. So generally

north temperate areas, temperate lakes in

particular. But the factors that influence

methylmercury production in particular, as I

note, things like pH and dissolved organic

carbon, content of sulfate levels, the

percentage of wetlands and watersheds, and

all those factors -- it's not a simple

relationship. Sometimes the studies show

conflicting results just because the process

is complex and not everything is fully

understood, but it's clear that all of those

factors seem to be important in the

production of methylmercury, which, again, is

important because that's a form of

biomagnifying to the greatest extent, and all

those factors can come into play in Illinois

waters as well in terms of pH, the more

L.A. REPORTING (312) 419-9292

acidic waters, and for example, an additional

factor is that if you look, say, coal-fired

power plants, we're looking at mercury here,

but obviously, there is major sources of

sulfur dioxide as well. And one of the whole

purposes -- or one of the whole goals of the

Clean Air Act of 1990 was to reduce, in part,

sulfur through the acid rain to reduce sulfur

dioxide emission so that acid-impacted water

bodies in the eastern U.S. could recover. So

there's been some reductions there, but

emissions still continue to be high. So

that's a case where you'd have two pollutants

coming from the same source, where the one

can interact with the other. In terms of

creative conditions, that may be more

favorable for methylmercury production,

basically, in deposition of sulfate of

acidity, acid deposition in rain or in dry

deposition contributing to acidified water

bodies, which then can, in some cases, lead

to higher methylmercury production.

There are also issues like, you

know, reservoirs and dams in water bodies can

L.A. REPORTING (312) 419-9292

lead to increased levels of methylmercury

production, and changes in the water levels,

in particular, flooding of areas that were

previously above water, now have plant matter

in them that's below water, and once that

decomposes, it can lead to anaerobic

conditions in the water body, which again,

facilitates the production of methylmercury.

So in any areas where you've got reservoirs

and the change in the water levels, those

factors can lead to the increased

methylmercury production, and hence,

increased availability of methylmercury to

build up in food webs. So those factors can

all come into play in Illinois waters.

MS. BUGEL: And the second question,

in response to question four, you discussed

factors in South Florida that were stressors

to the bird population, and you mentioned

habitat -- human activities in the habitat

quality. Are the similar types of stressors

also seen in Illinois?

DR. MURRAY: Well, obviously, a

habitat is an important requirement for any

L.A. REPORTING (312) 419-9292

wildlife species, including for birds, so

that's been a significant factor. It's

thought in Florida in preventing the recovery

of a number of the wading bird population,

but as I noted there, the -- kind of, the

alteration of water levels that followed from

all of the activities, hydrological

modifications there in the Everglades, it's

slowed down the recovery -- just that those

conditions of not having natural flow regimes

there have slowed down the recovery of wading

bird populations there. And I just noted the

issue of the changing in reservoirs, where

you've got changing water levels that can

contribute to increased methylmercury

production; and in fact, in the Everglades,

there are certain areas that -- methylmercury

is not uniformly high in the Everglades. It

definitely varies, but there's certain areas

that could definitely have higher levels, and

the same kind of thing can happen in

Illinois. Obviously, it's a different

system, but any place where you've got

reservoirs or water levels and the change in

L.A. REPORTING (312) 419-9292

a particular flood or increase can lead to

submerged vegetation that can decompose that

can lead to the increased production of

methylmercury, and that's increased uptake in

the food web.

HEARING OFFICER: Ms. Bassi?

MS. BASSI: Isn't there a distinction

between the Everglades and a reservoir,

though? Aren't reservoirs man-made?

DR. MURRAY: Yeah, they're -- yeah

Everglades is natural but it's been so

hydrologically modified, I think it would

almost be characterized now as more of a

man-made and artificial system. I think

there are a lot of people who are working on

it. But, yeah, reservoirs, in general, are

man-made. Obviously, you can have a natural

reservoir in a small river with a beaver dam

producing, you know, a small reservoir there,

but...

HEARING OFFICER: Mr. Harley.

MR. HARLEY: Dr. Murray, for the

record, my name is Keith Harley, and I'm an

attorney for the Illinois Public Interest

L.A. REPORTING (312) 419-9292

Research Group and Environment, Illinois.

Earlier in your testimony, you

used the term temperate lakes to characterize

the lakes where most of the studies have been

done about the impacts of mercury on wildlife

populations. You said the temperate lakes

tended to be in northern locations by

comparison to Illinois. Are the lake systems

in Illinois also properly characterized as

temperate lakes?

DR. MURRAY: I would say that the

water bodies in Illinois are kind of at the

southern end of the temperate range, I mean,

based on climate. Obviously, there are a lot

smaller number of lakes -- natural lakes in

Illinois than in the upper Midwest, but they

would be considered to be in the southern

range of the temperate lake system.

MR. HARLEY: Just one other question,

Dr. Murray. In response to questions that

were put together by Dynegy and Midwest

Generation, you have indicated that some of

the wildlife species that are impacted by

mercury include this list: Loons, belted

L.A. REPORTING (312) 419-9292

kingfishers, blue herons, ring-necked

pheasants, two types of thrush, insectivorous

passerines, 13 species of freshwater fish,

some insect-consuming mammals, aquatic

insects, minks and otters.

Dr. Murray, is this the total list

of wildlife receptors that are susceptible to

mercury toxicity?

DR. MURRAY: Well, no, that wouldn't

be a completed or universal list. Just to

clarify two that -- the species you

indicated, including fish species, indicate

data for which mercury exposure is available

and not necessarily where effects have been

measured. The fish tissue data I was talking

about for the Northeastern U.S., the 13

species, those were measured -- mercury

levels measured in those fish. It wasn't --

those were just measured in fish environment.

It wasn't part of any kind of controlled

study, but there have been -- it's important

to -- just, in turn, whether it's fish or

wildlife to think about the, kind of,

practical concerns in doing controlled dosing

L.A. REPORTING (312) 419-9292

studies.

So there's some wildlife species

for which there aren't much data because

they're just hard to study, in particular

marine mammals; but in this case we're

talking here about, the situation in more of

the simple U.S., the number of the species of

wildlife that have been studied intensively

for mercury exposure. And toxicity is a

relatively small membrane. I mean, we noted

it in the loons, the herons, other species

where controlled studies have been done, and

also a number of species where field data has

been obtained, such as the belted kingfisher.

So in some cases the species

are -- in all cases, assuming the data are

solid, species with good indicators of

mercury contamination exposure in the

environment, but the number that have been

subject to controlled dosing studies is

relatively small. In fact, mallard ducks

were subject controlled dosing studies, in

particular in the '70s, and even more

recently. And it's not necessarily clear

L.A. REPORTING (312) 419-9292

that those are the species that are most

sensitive to methylmercury toxicity, but for

various reasons that species was chosen for

study and had still been subject of a study.

But it is assumed, as I mentioned earlier,

that results from studies from individual

species, assuming similar kinds of chemical

transport and biological mechanisms going on

between different species, say, within the

bird -- among birds, can -- you know, can

have that ability with other species.

So just briefly then, the number

of species for which mercury and

methylmercury is potentially a problem is

fairly large, and again, would include

non-piscivorous species, in particular, and

the large majority of those have not been

studied in controlled dosing studies, and as

we know, there's relatively limited data on

even mercury exposure levels in a lot of

those species in this part of the country.

HEARING OFFICER: Anything further for

Dr. Murray? Dr. Murray, thank you very much

for appearing and for your testimony. Thank

L.A. REPORTING (312) 419-9292

you.

All right. Next is Ameren.

Before you start, Mr. Zabel?

MR. ZABEL: I have a motion to make on

the record. We would move the Board, and

I'll explain reasons for this, but I'll do

the motion on that one first. That the Board

had scheduled additional hearings in this

matter, and it specifically addressed to the

IEPA and Ameren proposal that we're about to

hear testimony on. As an alternative route,

because there's a time deadline concerning

the Board in this matter, they would suggest

that the IEPA and Ameren proposal be

separated out as a separate docket or

subdocket so that hearings on that proposal

can be held while the Board could otherwise

move forward on the general rule on mercury.

Either of those approaches would be

acceptable.

The reason we have a problem and

we're having a motion is, as the Board knows,

this was only presented to us on July 28th.

There's been very little time to analyze and

L.A. REPORTING (312) 419-9292

respond to it. Furthermore, there's no

procedure in the record, as currently set, to

file responsive testimony. The testimony was

all due on the 28th. There's new date for

additional testimony. So we see there are

several factual, several Illinois and legal

and several federal legal problems, as we

understand the Ameren/IEPA proposal. As I

mentioned, we've had no opportunity to

present responsive evidence. We have had no

time really to present it to our experts to

analyze the impact of this proposal on the

other generated units in the state, whether

they opt in or out of this proposal, what the

impact of the proposal would be if only

Ameren opts into it or others opt into it

under SOx, SO2 and under NOx regulations.

We're concerned that both Mr. Lawson and

Mr. Flamingas (phonetic), if I recall

testimony in their transcripts, said that the

technology-only standard was unacceptable for

mercury, and now we have one. We don't

understand why the Agency has changed its

position, and why it doesn't change its

L.A. REPORTING (312) 419-9292

position on the entire regulation.

On the legal front, as I

mentioned, there's no SO2 or NOx evidence in

this record to support an SO2 or NOx

approval. We believe the promulgation of the

SO2 will violate Section 10, prohibits the

Board from adopting SO2 regulations for

sources outside the metropolitan areas,

unless it's done for purpose of complying

with SO2 and National Air Quality Standard.

We believe, and we haven't had

time to analyze this, as I stated, that this

is an Ameren-only proposal; that, in fact,

the facts demonstrate that it's the only one

in reality that can be eligible to apply.

Then we believe it's a longer proceeding. In

Commonwealth Edison versus The Pollution

Control Board, which is one of the cases that

Mr. Forecade furnished to the Board during

the June hearing. Although, it arose in

somewhat of a factual setting, the judge

stated, and I quote, substantive rules of

this nature -- and this on the side of SO2,

in particular, standards in that case.

L.A. REPORTING (312) 419-9292

Quote, substantive rules of this nature are

promulgated for general, not special

application. Where one seeks to relax their

enforcement against it exclusively, the

legislator is determined that the appropriate

remedy is for the agreed party to seek a

variance according to Title 9 of the Act, end

of quotation.

Now that we've had a second

proceeding, 28.1, for adjusted standard, both

of which are provided by the legislator with

specific entities with specific concerns.

This is to be a regulation of general

applicability, but the Board has no evidence

that it, in fact, would apply generally or

could apply generally, which is why

additional time is necessary.

If Ameren, as its testimony

indicates, has coordination and technological

problems with the proposal, either it's the

variance or adjusted standard that isn't

appropriate or everyone has those same

problems in the rule of general

applicability.

L.A. REPORTING (312) 419-9292

The problem at the federal level

is probably worse. How are they going to

demonstrate compliance in the cap, is a

question you would ask the Agency. How are

you going to demonstrate compliance with the

cap, if only Ameren is going to apply or

others are going to opt in? What assumptions

are they making about others opting in? We

have no idea, and there's no testimony

supplied from the Agency.

More importantly, we believe that

surrender of allowances in the prohibited

trading violates both the Supremacy Clause

and the Interstate Commerce clause. I refer

the Board to two decisions the Clean Air

Markets Group versus Pataki,

194 App. Supp. 2d. 147, it was a district

court case in which New York attempted to

restrain trading of SO2 allowances. The

district court found it in vio- -- in those

cases, it was some of -- different facts, but

similar. They could still trade. They

weren't prohibited from trading. They were

limited in how they were to trade.

L.A. REPORTING (312) 419-9292

Allowances weren't removed from the market.

Congress has defined that market at a certain

size, at a certain scope. New York tried to

modify only who they could trade with. The

district court found it violated both the

Interstate Commerce Clause and the Supremacy

Clause.

The case went to the United States

Court of Appeals to the Second Circuit in

338 App. 3rd. 826, and the Court of Appeals

affirmed they only reached a Supremacy

Clause, found in the New York statute, and

violating Supremacy Clause and declared it

unconstitutional.

We have not had time to prepare a

brief on either the state or federal issues,

but we think there are serious concerns that

the Board should be consumed with with this

proposal, and additional hearings or a

separate docket would be appropriate. Thank

you, Madam Hearing Officer.

HEARING OFFICER: Thank you,

Mr. Zabel. Mr. Rieser, I imagine you have a

response?

L.A. REPORTING (312) 419-9292

MR. RIESER: Well, I'll note as an

initial measure that I don't seem to have as

good a microphone as Mr. Zabel. To my ears,

I sound like Donald Duck, and I don't know if

that's universally heard, and I don't want

that to effect the seriousness of this

argument.

Obviously, Mr. Zabel has raised a

lot of issues, which are going to be

difficult to respond to orally, since I

wasn't able to write them all down. As far

as additional hearings, we have two weeks in

front of us, and if after the end of those

two weeks, the Board feels that there's going

to be a need for additional hearings, as you

have reserved to yourself anyway, then that

will be a decision that gets made.

I do want to note as I was going

to say in presenting the witnesses, that we

do have the Agency available, and they have

agreed to answer some questions that were

directed to Mr. Menne that were really more

directed to the Agency, i.e., what does the

Agency think about this or think about that

L.A. REPORTING (312) 419-9292

or how does that impact the Agency's other

testimony. So Mr. Ross is available to

respond to that now, and there's been a

suggestion that he be allowed to answer those

questions as we move forward so that we can

keep the record together.

As for the legal issues, as to

separate it out to a docket, I guess my

response is that this is all at peace. As

we'll talk about -- this was negotiated with

Ameren. It's not Ameren's position that

other companies can or can't because we don't

know if other companies' systems well enough

to be able to say whether they can utilize it

or not, but the intention is that this is all

at peace with the other rules.

Sitting here, it would surprise me

greatly if there were not other rules with

general applicability that also addressed,

within the same docket, issues relating to

individual companies, whether they were

separate sections or separate parts or some

measure where a company or trade association

came in and made suggestions as to how those

L.A. REPORTING (312) 419-9292

rules would apply in certain specific

settings. So I don't know that we're

required to use the site-specific unadjusted

standard mechanisms or the variance

mechanisms for these purposes. Obviously,

the time lines that are laid out here would

make that extremely difficult. I guess it

was our thought that these were rules of

applicability that would apply throughout the

state and have to be adopted very quickly,

and then bringing us into part of that whole

discussion was the federal way -- the federal

way to address that.

As for the legal issues, the legal

issues tend not to be addressed within the

context of the hearings themselves, anyway,

since these are primarily factual and

intended to involve the presentation of

factual testimony. The legal issues are

usually addressed in post-hearing comments.

Obviously, to the extent that Mr. Zabel

believes that there are legal barriers to

adopting the rules that are proposed, then

that would probably be the time to address

L.A. REPORTING (312) 419-9292

those, whether or not they were presented in

a separate hearing.

So that's my initial response.

Obviously, Mr. Zabel had a lot of -- made a

number of points, and I guess, I'm not sure

the reason for bringing it up now as opposed

to presenting it in argument as testimony was

filed, but I certainly would like -- think it

would be better for that motion to be

presented in writing so that both the issues

that are raised can be more fully elaborated

and my response can be more fully elaborated.

HEARING OFFICER: Thank you,

Mr. Rieser.

MR. KIM: May I respond as well since,

I think the Agency --

HEARING OFFICER: Can we get the

microphone?

MR. KIM: I'll speak very loudly.

John Kim on behalf of Illinois EPA, and I

wanted to make a couple statements in

response considering the Illinois EPA would

also be affected by the request, and as an

initial matter, I just want to -- for

L.A. REPORTING (312) 419-9292

clarification, is your motion being made on

behalf of both Dynegy and Midwest Generation?

MR. ZABEL: Yes, sir.

MR. KIM: Well, just to -- we would

agree certainly with everything that

Mr. Rieser has just stated, and then I just

wanted to add a couple quick comments as

well.

First of all, the language that

we're talking about here is -- it's voluntary

language, and I think the testimony is going

to come out, but it was intended to add an

additional measure of flexibility into the

rule consistent with what the underlying

reasoning was with the TTBS language. This

is language that we have discussed with all

of the people that are being represented

today. We've had a number of discussions, as

a matter of fact, with everybody here. So

it's not as if this language has just been

presented at the very last minute, and I

would also tend to agree -- I think I've got

some responses as to some of the legal issues

that Mr. Zabel raised, but I do think it's

L.A. REPORTING (312) 419-9292

probably best not to get into that here. I

think it's better to have the opportunity for

everybody to actually write that out and

brief it if it does get to that point; but

again, similar with the approach that was

taken with the TTBS, admittedly, it wasn't

presented at the very beginning of the

proceeding at the same time the original rule

was presented. However, I believe that

through the course of the Springfield hearing

and through the questions that were asked and

so forth, that sufficient answers were given

so that the Board would be able to proceed

with that language, and I don't think that

that's going to be any different than what we

would envision here for this language.

That's all I have.

HEARING OFFICER: Thank you, Mr. Kim.

MR. ZABEL: I'm not going to belabor

the point. I understand Mr. Rieser's

surprise, if you will, and I didn't mean to

do it as a surprise, but as you know, we had

a serious volume of questions from the Agency

that we had to prepare for our own witnesses'

L.A. REPORTING (312) 419-9292

responses. We had 11 days. I don't know how

many working days that is, which it isn't in

writing, and I apologize to the Board, but I

haven't had time to research all of this

information.

Mr. Kim mentions voluntary, I

think the New York case would be quoted on

voluntariness, and right now we're

considering revising our comment, whether --

if this rule is adopted in a certain fashion,

whether we take it to the appellate court or

take it to the federal court.

There are a lot of issues here.

We're not sure what the answers are to all of

them. We would think the Board would want to

know that before it happens. It doesn't want

to, I am sure, run the risk of contravening

with the Interstate Commerce Clause and

Supremacy Clause or Section 10 of the

Illinois Environmental Protection Act.

All I can say is that it may not

have been a surprise to Mr. Kim, but we

didn't know anything about this until the

28th of July when it was filed, and the Board

L.A. REPORTING (312) 419-9292

had no knowledge of it until then, so you had

no opportunity to set for hearing. You may,

and that's what we're asking you to do. We

think the Board needs to pursue these issues.

We think we would like to be able to pursue

these issues. Thank you.

HEARING OFFICER: Well, I first would

point out that since this is a motion that

only the Board can address, even though our

foreman is currently present, there's no way

for the Board to address that motion at this

point in time. It has to be on a regularly

scheduled board meeting. That being the

case, I'm going to, as hearing officer, ask

that you do address this in writing to the

Board, and you can do it one of two ways. If

you feel it's of great enough concern that

you would like to see the Board make a

decision before final comments or before the

last set of comments after the hearings would

be due, I'm willing to shorten the briefing

schedule, i.e., I would have you file a

motion within the next seven days, shorten

the response period to seven days, which

L.A. REPORTING (312) 419-9292

would put it on in front of the Board's rule

in early September, and certainly before any

comments would be due from this hearing; or

you can raise it in your final comments, and

I would leave that up to you. I keep saying

final comments, and I don't necessarily mean

final comments. I mean post-hearing

comments, and I will leave that to you.

Which direction would you prefer to go?

MR. ZABEL: I prefer to do it in

writing, but as it's obvious, as Counsel for

my clients, I'm working on this hearing this

entire week for the next seven days and that

makes it very difficult -- that's what made

it difficult to put it in writing. If I may,

Madam Hearing Officer, respond to the request

first thing tomorrow morning, I would do

that?

HEARING OFFICER: And we can be

flexible with that schedule. I just quickly

looked at the calendar, the way it's set up,

if we did it seven days from Thursday, for

example, so that your motion would be viewed

on the 24th, responses on the 31st --

L.A. REPORTING (312) 419-9292

THE REPORTER: I wasn't able to hear

the end of that.

HEARING OFFICER: Oh, sorry. I just

indicated that the Board's meeting schedule

is such that if they filed a motion on the

24th and responses were due on the 31st, then

the Board could possibly rule the first

meeting in September, but that we would be

willing to bump that out to the middle of

September or wait until final comments --

post-hearing comments, whichever works best

for Mr. Zabel.

MS. BASSI: Madam Hearing Officer, I

just want to clarify, whatever motion is

filed, even if it is filed in the same time

frame as post-hearing comments, would that be

considered a comment?

HEARING OFFICER: No, it would be a

motion. Then I would allow 14 days for

response. And keep in mind, when we start

talking about post-hearing comments, if there

are still issues that you feel need to be

addressed, we can also discuss how we're

going to have those comments filed. We can

L.A. REPORTING (312) 419-9292

play with that as we get closer to that time.

MR. ZABEL: Yeah, I assume at the end

of the hearing we're going to address those

procedural questions.

HEARING OFFICER: Absolutely. Yes,

Ms. Crowley?

MS. CROWLEY: Can we ask Mr. Zabel to

repeat the citation, I didn't quite catch it?

MR. ZABEL: The First District

Appellate Court, Commonwealth Edison versus

Pollution Control Board. I don't think I

gave a citation. I apologize. It's

24 Ill. App. 3d -- 25. I'm sorry.

25 Ill. App. 3d. 271, First District 1974.

The two federal cases that I cited are both

captioned Clean Air Markets Group versus

Pataki, the governor of New York. The

District Court case is 194 App. Supp. 2d 147,

decided by the Northern District of New York

in 2002. The same case in the Second Circuit

Court of Appeals is 338 App. 3d. 826, decided

in 2003.

HEARING OFFICER: Thank you. So with

that, we will look for a motion response.

L.A. REPORTING (312) 419-9292

Mr. Rieser.

MR. RIESER: I do want to suggest a

way of proceeding to hopefully shorten this a

little bit and to make a better record for

the Board. We have two witnesses to present,

Mike Menne and Dr. Anne Smith. It would be

my suggestion that Mike would summarize his

testimony, and he will do so briefly. It is

also my understanding from the pre-hearing

conference that you'd like to see the joint

statement that was filed by the Agency and by

Ameren as an exhibit to his testimony, so

when he presents himself, his testimony, the

expectation is that we will introduce both

the joint statement and his testimony as

exhibits, and I don't have the numbers handy,

and then we would move from there.

The second point -- actually, it's

a series of points, is that Midwest Gen has

asked a number of questions of Mike, which he

will try to answer, and some of them are

excellent in moving the record forward and

some less so, and I will be putting forward

objections to those that are less so as we

L.A. REPORTING (312) 419-9292

move along, but it pretty much follows into

three separate groups. One, are the

questions that are directed at Mike where he

is asked to talk about what the Agency

believes or thinks or says about a given

issue. As it happens, John Kim has offered

to have Jim Ross here to testify as to what

the Agency thinks or believes about these

issues, and I think it would be my suggestion

that we proceed by having Jim simply jump in

and answer those questions as they come up in

the course of the questions being asked of

Mike, as a way of just keeping the record --

keeping the matter moving and keeping the

record clear. So that's my first suggestion.

The second group are questions

about operations of other companies and how

it supplies to other companies. Obviously,

Mike doesn't have the information about other

companies' operations or emissions or

financial issues within his knowledge at a

level that he can respond to those questions,

and so that's what his response is going to

be. He just doesn't know what the impact

L.A. REPORTING (312) 419-9292

will be on these other companies.

The third group is that Midwest

Gen asked a number of processed questions; in

other words, what were negotiations, who were

there, what meetings, blah-blah-blah. The

fact is that, obviously, as John Kim had

said, there have been -- this was obviously

the result of a number of meetings between a

number of the Ameren representatives and IEPA

representatives. There have been a number of

meetings between IEPA representatives of the

other companies, and I don't think that the

record is furthering and our time is well

served by getting into those process

questions because I think the question that's

before the Board is what is this rule, what

does it mean, what's its impact, is it a good

idea, is it not a good idea, and the whole

process question of who was at what meeting,

to me, is fairly irrelevant to answering that

question. I understand that at regulatory

hearings, there tends to be a pretty broad

idea of relevance, but for this situation, it

seems like that would be just an

L.A. REPORTING (312) 419-9292

inappropriate use of everybody's time to get

into a lot of questions about who did what

and who was at what meetings, since that

really doesn't have anything to do with the

value of the rule to the value of the

proposal we're presenting here today.

So it would be my intent to flag

those types of questions as we go through and

indicate that I have an objection to them,

and I guess my expectation is that you will

rule depending on what the question is and

what else is going on.

HEARING OFFICER: We will need to

respond to those objections on a

question-by-question basis.

MR. ZABEL: Yeah, we would need you to

respond by a question-by-question basis

because it would be hard to argue without

them.

HEARING OFFICER: We'll do that on a

question-by-question basis then. At this

time, can we have Mr. Menne and Dr. Smith

sworn in?

(Witnesses sworn.)

L.A. REPORTING (312) 419-9292

HEARING OFFICER: And also, are

Mr. Ross and Mr. Romaine both going to be

answering Agency questions?

MR. KIM: Yes.

HEARING OFFICER: All right. Let's go

ahead and swear in Mr. Ross and Mr. Romaine.

MR. RIESER: Aren't they already

sworn?

HEARING OFFICER: We'll just do it

again.

(Witnesses sworn.)

MR. RIESER: At this time, I'd like to

present Mike Menne's testimony and the joint

statement as two exhibits. I'm afraid I

don't have the --

HEARING OFFICER: 75 and 76.

MR. RIESER: 75 and 76. So the joint

statement will be 75, and the testimony will

be 76?

HEARING OFFICER: Correct.

MR. RIESER: We have copies of those

to be distributed, and perhaps, Dr. Smith's

testimony as well at the same time?

HEARING OFFICER: That's fine. It

L.A. REPORTING (312) 419-9292

will be Exhibit 77.

MR. RIESER: Thank you.

HEARING OFFICER: If there's no

objection to enter the joint statement as

Exhibit No. 75, and the prefiled testimony of

Michael Menne as Exhibit 76, and the prefiled

testimony of -- not the addendum, just the

testimony of Dr. Anne Smith as Exhibit

No. 77. Am I correct the addendum is --

(inaudible).

THE REPORTER: Can you repeat the end

of that?

HEARING OFFICER: I'm sorry. The

addendum is -- (inaudible.)

MS. BASSI: We filed Ms. Smith -- or

Dr. Smith's addendum with Marchetti's and

with Krish's (phonetic) testimony as part of

their testimony -- as references to their

testimony.

HEARING OFFICER: Okay. So Exhibit 77

will just be the prefiled testimony of Anne

Smith.

MR. BONEBRAKE: Madam Hearing Officer,

with respect to your question, as to whether

L.A. REPORTING (312) 419-9292

there's any objections, I just want to state

for the record, we're not making an objection

at this time, but we're not waiving any

objections that we might present to the

Board, for instance, in the motion we have

discussed and will discuss tomorrow morning.

HEARING OFFICER: Thank you.

THE REPORTER: Miss Hearing Officer?

HEARING OFFICER: Yes.

THE REPORTER: Can I have one of

those?

HEARING OFFICER: Sure.

THE REPORTER: Thank you.

HEARING OFFICER: So, again, for

clarification, the joint statement, which

is -- the joint statement and the ruling

that's attached is Exhibit No. 75. The

testimony on Michael Menne is Exhibit 76, and

testimony of Anne Smith is Exhibit No. 77.

MR. RIESER: And I'd also like to note

that the rules are also attached to

Mr. Menne's testimony. So if you're

referring to 75 and 76, we'll refer to the

proposal throughout to avoid confusion.

L.A. REPORTING (312) 419-9292

With that, I'd like for Mr. Menne

to summarize his testimony and then proceed

with the questions.

HEARING OFFICER: Excuse me,

Mr. Rieser, before we start, the copies that

I was just handed does not include the rule

attached to the back. We have the joint

statement. I have Mr. Menne's testimony, and

then I have one copy of the proposed

multi-pollutant standards ruling, which I

have put with the joint statement, but then

there's not one to go with Mr. Menne's

testimony.

MR. RIESER: My recollection is that

we filed it with it attached, and we can

provide additional copies of it here if that

would be useful.

HEARING OFFICER: Yeah, I just want to

be sure that it's identical to what you

filed.

MR. RIESER: Super. We'll make sure

we have the right one.

HEARING OFFICER: Let's go off the

record for just a second.

L.A. REPORTING (312) 419-9292

100

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER: Back on the record.

MR. MENNE: My name is Mike Menne.

I'm vice president of the Environmental,

Safety and Health Department for Ameren

Corporation out of St. Louis. Ameren

Illinois of generating companies have 25

coal-fired units, and thus, the outcome of

this hearing in one way or another this

proceeding will effect our company to a

significant degree as well as our customers.

Ameren as well as most of the

electric utility generating companies takes

compliance with environmental standards very

seriously. In fact, like others, we try to

make an effort to operate well below our

compliance levels so we have an operated

margin below the level that we need to

maintain just for compliance with

environmental standards. Thus, when we

initially reviewed the proposed mercury rule

that's the subject of this hearing, it gave

us some concern that we would be able to

L.A. REPORTING (312) 419-9292

101

comply with a 90 percent controlled rule in

just three years by 2009, at least from the

standpoint of being able to put in controls

that we believe would reliably get us to

90 percent on all of our 21 coal-fired units.

In addition, this Board is going

to begin hearing on the Clean Air Interstate

the -- Federal Clean Air Interstate Rule, I

believe in October, I think it set some

hearing dates for it, the CAIR rule will

require significant additional reductions of

SO2 and nitrogen oxide emissions from

electric generating units in the state.

So what we, Ameren, did was

approach the Illinois Environmental

Protection Agency. Realizing that our

decisions to control SO2 emissions, to a

lesser extent NOx emission, but particularly

SO2 emission, is going to have a significant

impact often our planning for control of

mercury operations because a lot of SO2

controls also control mercury, such as wet

scrubbers and whether or not to use bag

houses with dry scrubbers, et cetera.

L.A. REPORTING (312) 419-9292

102

So we approached the Agency with

the idea and with the concerns that I just

mentioned in mind of whether or not they

would be willing to agree to an off-ramp

approach, if you will, or amendment to this

rule that would allow companies to control

sulfur dioxide and nitrogen oxide emissions

to a point that we believe would actually put

controls on the units that are beyond the

requirements of the Federal CAIR rules as an

option to controlling mercury or guaranteeing

that we will control mercury on all of units

by 1990 (sic).

The Illinois EPA seemed to have --

I'm sorry. 2009.

The Illinois EPA seemed to be

appreciative of the fact that we wanted to

reduce SO2 emissions and NOx emissions to a

large degree more significantly than might be

otherwise required, and they appreciated the

fact that these controls can compliment each

other. They had basically two requirements

that they wanted us to meet. One was that we

would control mercury emissions on all of our

L.A. REPORTING (312) 419-9292

103

units by 1990, and we have -- I keep saying

1990, and I apologize for that. For some

reason that year is stuck in my head. 2009.

If I ever a say 1990, I mean 2009. 2009, and

we've agreed to that, and that is in this

proposed amendment, with the exception of our

smallest units, which are less than

90 megawatts. Those units have to install

mercury controls by 2012. The second thing

they wanted to do was to make sure we

guaranteed that we controlled mercury by some

future date at the 90 percent level, and that

is in this amendment that we will be in

compliance at the 90 percent level on all our

units, again, with exception of the smaller

ones by 2015.

The agreement that both Ameren and

the Illinois Environmental Protection Agency

have with regard to both agreeing to the

language that has been submitted and attached

to my testimony is basically laid out in the

joint statement that was also just submitted

as, I think it was Exhibit --

HEARING OFFICER: 75.

L.A. REPORTING (312) 419-9292

104

MR. MENNE: 75, and as such, we are

urging the Pollution Control Board to adopt

this amendment as an alternative method to

comply with the spirit of this mercury rule,

and that's my opening statement.

HEARING OFFICER: Okay.

MR. MENNE: You want me to go right

into the questions?

HEARING OFFICER: Yes, please. And

these are questions by Dynegy and Midwest

Generation.

MR. MENNE: Question number one. Has

anyone outside of Ameren aided Ameren in

preparing responses to these questions? And

if so, who?

The answer to the first question

is yes. The who is really the legal team

that has aided Ameren throughout this whole

process.

What form did that help take?

Basically, they provided me with

these questions. And as Mr. Rieser noted,

they discussed whether some of them should,

in fact, be answered straightforwardly or

L.A. REPORTING (312) 419-9292

105

which ones I could or couldn't answer because

of the knowledge base. They advised me on --

I told them I didn't know a lot of these

answers. He said that's fine. If you can't

answer them, just do it. That sort of thing.

HEARING OFFICER: Excuse me.

Mr. Zabel.

MR. ZABEL: Could you tell me who was

on your legal team besides Mr. Rieser?

MR. MENNE: Who was on the legal team?

MR. RIESER: Well, again, this gets

into the first -- the process questions. I

don't know how it matters to the Board who

was on the legal team. It was lawyers from

McGuire, Woods who were on the legal team who

worked together with Ameren to formulate

answers to these questions.

MR. ZABEL: I think it's all relevant

to the very broad rules of admissibility in

this proceeding. Was it only -- I'm going to

revise my question. Was it only lawyers from

McGuire, Woods?

MR. MENNE: No.

MR. ZABEL: Where else?

L.A. REPORTING (312) 419-9292

106

MR. RIESER: It's the same objection,

and he spoke too quickly for me to interpose.

These are the process questions that I think

are objectable and do nothing to forward the

record.

HEARING OFFICER: I have to agree with

Mr. Rieser. I'm not sure I understand the

relevance.

MR. ZABEL: I think it's relevant how

the Board came about having this proposal

presented to them. It's acting -- it may be

a rule of general applicability, and I think

it's important to know how it came about. My

next question will go to the same subject.

HEARING OFFICER: Well, I think he's

testified to how it came about. Ameren

approached the Agency to discuss --

MR. ZABEL: Very generally, he did,

indeed, and that's why I'm following up on

this.

HEARING OFFICER: I will allow it.

Answer the question, Mr. Menne.

MR. MENNE: Which question am I

answering?

L.A. REPORTING (312) 419-9292

107

HEARING OFFICER: Who besides McGuire,

Woods?

MR. RIESER: Well, but that's for this

question.

HEARING OFFICER: Right.

MR. RIESER: Again, the -- you're

absolutely right it's the whole process. It

has nothing to do with the rule that's before

you, the merits or demerits, as it may be,

are written into the rule, and there's

technical testimony in support of it, and

that's where the focus should be and not on

how many meetings did you have and who was at

what meeting. That's the next question. If

it's your direction to have him answer the

question, then he should answer the question,

obviously, but for the next one we'll --

HEARING OFFICER: We'll take it up

then.

MR. ZABEL: It's a

question-by-question basis.

MR. MENNE: Well, I think I was asked

what other firm, and I'm going to struggle

with this because I don't -- these firm names

L.A. REPORTING (312) 419-9292

108

give me trouble. Summershine.

THE REPORTER: What was it,

Summershine?

MR. RIESER: Sonnenschien, S-O-N-N.

MR. MENNE: And I believe that's the

only outside firm that I can think of, other

than our internal attorneys at Ameren.

HEARING OFFICER: Thank you.

MR. ZABEL: And were the answers to

the questions discussed with people from the

Agency?

MR. RIESER: Same objection.

MR. ZABEL: It's an Agency proposal,

Madam Hearing Officer. I think we ought to

have at least some idea of what the Agency's

input was, as they tender no prepared

testimony in support of their own proposal.

HEARING OFFICER: It's a joint

statement. It's not necessarily the Agency's

proposal, but I do think it is important to

know how much -- how involved the Agency has

been in preparing for the answers to the

question about the joint statement, which

they share. So this question, yes.

L.A. REPORTING (312) 419-9292

109

MR. MENNE: As I understand the

question, did the Agency assist me in any way

in answering these questions?

HEARING OFFICER: Yes.

MR. MENNE: The answer to that is no.

The second question, who was

involved in negotiating the multi-pollutant

standards?

MR. RIESER: It's the same objection,

Madam Hearing Officer.

HEARING OFFICER: But in this case,

that's been in all the newspapers, so I think

we can answer it. I mean, that's a matter of

public record.

MR. MENNE: Well, actually negotiating

the standards was members of the Illinois

Environmental Protection Agency, myself, some

of my staff and some of the lawyers on the

legal team, not all of them, but several of

them were involved at different points in

time.

HEARING OFFICER: Question number

three.

MR. MENNE: Who drafted the

L.A. REPORTING (312) 419-9292

110

multi-pollutant standard?

MR. RIESER: Same objection.

HEARING OFFICER: This one you have to

answer.

MR. MENNE: It was derived from

negotiations from a number of teams -- from

meetings that we had. I would say it was

drafted -- at least the initial draft came

from our legal team, and I don't know exactly

who came up with the first language, but it

went back and forth between our legal team

and members of the Illinois Environmental

Protection Agency, and that's how it was

drafted.

HEARING OFFICER: Question number

four.

MR. MENNE: What persons and entities

provided input or comments concerning the

development of the MPS?

MR. RIESER: Same objection, but I

understand your ruling.

MR. MENNE: The answer is really the

same as number 3. It was basically the

members of the Illinois Environmental

L.A. REPORTING (312) 419-9292

111

Protection Agency, parts of our legal team,

and there were many people within Ameren in

the internal departments that had comments on

the development of this.

HEARING OFFICER: Mr. Bonebrake?

MR. BONEBRAKE: Who of EPA, the

Illinois Environmental Protection Agency, was

involved in drafting the MPS and provided

input or comments regarding the MPS?

MR. ROSS: I would say the main people

at the IEPA involved in that process were

Chris Romaine, Laurel Kroack and myself.

THE REPORTER: And what is your name

again?

MR. ROSS: Jim Ross.

MR. BONEBRAKE: If I understand the

process correctly, and correct me if I'm

wrong, your testimony is that the first draft

of the MPS was done by Ameren

representatives, and then subsequent

provisions were made by IEPA personnel; is

that correct?

MR. MENNE: If I recall properly, I

think our legal team took the first crack at

L.A. REPORTING (312) 419-9292

112

how the language would fit into the ruling.

MR. BONEBRAKE: Does that mean

drafting some of the language?

MR. MENNE: I would assume, yes,

drafting some language, and then presenting

it to IEPA. I believe that's how the

language came to be.

HEARING OFFICER: Question number

five.

MR. MENNE: Who drafted the joint

statement?

I'm going to have to defer this a

little bit because I wasn't involved directly

in the drafting of the joint statement. It

involved the lawyers, primarily, and when I

looked at the joint statement, it's signed by

David Rieser and John Kim, so I'm assuming

they had a lot to do with drafting it, but

that's as far as my direct knowledge goes on

this statement.

HEARING OFFICER: Okay. Question

number 5A.

MR. MENNE: I have read this

statement, and I agree with this statement.

L.A. REPORTING (312) 419-9292

113

HEARING OFFICER: Question number six.

MR. MENNE: You state in your

testimony you're not speaking on behalf of

the Agency. Who is?

I think that Mr. Ross has agreed

to do that.

MR. ROSS: I can and Chris Romaine

can.

MR. MENNE: And number seven, I would

like to defer to the Agency as well.

MR. ROSS: Number seven is, do you

know why the Agency failed to offer any

testimony in support of the MPS?

And we believe the purpose of the

second hearing is specifically for those who

opposed the rule to present their testimony.

So, in part, that's why, but also just the

timing that was involved. The resolution on

the MPS was reached late in the negotiations

process, just prior to the beginning of these

hearings, so we did not have sufficient time

to provide adequate testimony, but we are

making ourself available here today to answer

any questions.

L.A. REPORTING (312) 419-9292

114

MR. ZABEL: I don't understand your

answer, that is, quote, people opposing the

proposal. Dr. Murray didn't oppose the

proposal. Ameren did not oppose the

proposal, and I don't believe that was what

the Hearing Officer's order said. Could you

explain, Mr. Ross?

MR. ROSS: Well, we presented our

primary case at the initial hearing, and the

second hearing, the primary purpose is for

those opposing the rule to present their

case. Now, we have had an amendment. We

understand that, so we did take part in the

joint statement, and we are making ourself

available to answer any questions.

MR. ZABEL: You are aware that the

Ameren proposal supports the Agency proposal,

are you not?

MR. ROSS: Yes, we're aware of that.

MR. ZABEL: And you were aware that

that would be the subject of this hearing,

were you not?

MR. ROSS: We were aware, as I stated,

late in the process --

L.A. REPORTING (312) 419-9292

115

MR. ZABEL: How late?

MR. ROSS: -- so just prior to the

beginning of this hearing.

I would say agreement was reached

roughly a few days before prefiled testimony

was required.

MR. ZABEL: And yet, Ameren had an

opportunity and capability to file that

testimony. Why couldn't the Agency?

MR. KIM: Well, before this is

answered, if you look at the language of the

joint statement, which is found in

Exhibit 75, it states that Ameren is

proposing the language, and the Illinois EPA

supports that presentation. However, that

language makes clear Ameren is presenting the

proposal. When you asked why there is no

testimony, the Agency is agreeing and

supporting Ameren's decision to bring this to

the Board's attention, but if you read that

language, it states very clearly Ameren is

making the presentation, the Agency supports

that presentation. So --

MR. ZABEL: Why is not presenting

L.A. REPORTING (312) 419-9292

116

evidence -- explain why it supports that

proposal.

MR. RIESER: It's hard to know where

this is going. I mean --

MR. ZABEL: It certainly is. I'll

stipulate to that.

MR. RIESER: What has happened, has

happened, and so again, we're getting into a

process issue that I think retracts from a

good discussion about what actually has been

proposed and whether that makes sense or not.

HEARING OFFICER: I don't think I'm as

concerned as Mr. Zabel, and you've made

several comments about not -- the Agency not

providing testimony, et cetera. This is a

rule-making process and comments are not

honorable, and there have been opportunities

for comments, and maybe comments can be

perhaps in another hearing, and I understand

where you're going with this stuff, but I

don't believe we should belabor the point.

MR. ZABEL: I won't belabor it, but I

will respond, Madam Hearing Officer.

The Agency is one of the two major

L.A. REPORTING (312) 419-9292

117

branches of this state government in the

environmental area. It is usually the major

component of regulations to this Board. I

would think the Board would want to know its

participation and how it came about to

support this, and that's the purpose of my

question.

HEARING OFFICER: And I'm allowing

them to answer your questions, but I do think

we're going a little bit beyond what the

purpose of this hearing is.

MR. ZABEL: And I won't belabor it.

HEARING OFFICER: We're on question

number eight.

MR. RIESER: And this is one of the

ones I'm objecting to on a process basis.

MR. ZABEL: Excuse me. I don't know.

Did Mr. Ross complete his answer to seven?

MR. KIM: I believe that his answer

would have been covered under the Hearing

Officer's ruling just now.

HEARING OFFICER: No, he can answer

the questions. I said we're not going to

belabor the point about what this hearing is

L.A. REPORTING (312) 419-9292

118

about. I do think we need to know --

MR. ROSS: I can continue.

MR. KIM: I'm sorry. To know?

HEARING OFFICER: Mr. Ross can

continue to answer his question.

MR. ROSS: 7A, was the possibility of

the Agency's testifying discussed with the

Agency?

Well, I believe --

MR. KIM: You're here now.

MR. ROSS: Right.

I mean, we've had short

discussions with Ameren about us testifying,

and I think it was agreed that Ameren would

be the one testifying. B, did anyone from

the --

MR. ZABEL: Excuse me, Mr. Ross. Why?

MR. ROSS: Simply, as John stated,

that it's --

MR. ZABEL: John is not under oath.

HEARING OFFICER: Go ahead and state

what Mr. Kim stated because he wasn't sworn

in.

MR. ROSS: Well, I believe it was

L.A. REPORTING (312) 419-9292

119

discussed that Ameren is the one submitting

the amendment and supporting the -- and

proposing the amendment and will provide the

primary support for the amendment, and the

Agency, again, would make itself available

here today to answer any questions.

MR. ZABEL: And when was that decided?

MR. KIM: Again, is this line of

questioning necessary? He's answered the

questions. If we're going to go back into a

time line of when every discussion was held,

we're going to be here for a long time.

MR. ZABEL: I think it's very

difficult because in question 7B, the syntax

is wrong if the Agency is answering the

question, but nobody told us they were going

to answer the questions, so the syntax is

written the way it is.

Now, I'm curious why and I will be

curious when it was decided to tender the

Agency's witnesses, and why before that, it

was determined not to? That was the point of

the question.

HEARING OFFICER: Mr. Ross should

L.A. REPORTING (312) 419-9292

120

answer the question.

MR. ROSS: I think it goes back to the

timing. When was that decided? My best

guess is a couple days prior to when we had

to get prefiled testimony in. When anyone

who was submitting prefiled testimony had to

get it in.

HEARING OFFICER: And I also want to

note for the record that it was stated at the

pre-hearing conference that the Agency will

not be providing testimony. So in fairness

to Mr. Zabel, the Agency -- I think he's

right to ask these questions because we did

discuss this at the pre-hearing conference,

and I believe this was raised by Ms. Bassi,

and the Agency indicated they would not be

providing testimony, and I appreciate that

you are here to answer the questions, as I'm

sure Mr. Zabel is, but I do think that he is

legitimately asking some of these questions.

MR. KIM: Just to clarify, and I can't

recall, was the pre-hearing conference held

before or after the prefiled questions were

submitted? Because my thought is when -- we

L.A. REPORTING (312) 419-9292

121

probably -- and I could be wrong if the dates

don't match up, but my sense is, I thought

the pre-hearing conference was before the

questions were received -- well, in any

event, the reasoning was, a number of the

questions, upon receipt and upon review,

clearly were placing Ameren in the position

of having to look into the minds of the

Agency and answer some of these questions,

and so we simply thought it would be helpful

for the Board and for all the parties,

instead of Ameren saying, well, I don't know,

you're going to have to ask the Agency, to

have someone here from the Agency answer

those questions.

HEARING OFFICER: The pre-hearing

conference was held before the questions were

filed, but I really -- you know, we're

spending a lot of time arguing over this

stuff. So just answer the questions. I

understand you want to make your point, but I

think that we need to go ahead and answer the

questions. I will address objections on

individual questions as they come up. For

L.A. REPORTING (312) 419-9292

122

now Mr. Ross needs to answer the question.

MR. ROSS: 7B, did anyone from the

Agency indicate why no testimony would be

offered?

We've spoke to that already, I

believe.

7C, if so, what were the reasons?

Previously provided.

That takes us to eight.

HEARING OFFICER: Question number

eight.

MR. MENNE: Is there a written formal

agreement between Ameren and the Agency

relative to the proposal of the MPS?

MR. RIESER: And this is another one

of those process questions to which I've been

objecting. The joint statement that's been

presented is a written statement between the

Agency and Ameren with respect to the MPS,

and that's what we're presenting here today

and prepared to testify about.

HEARING OFFICER: Mr. Zabel?

MR. ZABEL: There's things in the

joint statement that raises questions. For

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123

instance, the statement -- there's

articulation in the joint statement that

if there are -- to this effect, and you can

look it up if you wish, that Ameren would be

last if there are further regulations of SO2

and NOx. I want to know if there's an

agreement -- I'll ask Mr. Menne specifically

the question. Is there a memorandum of

understanding between the Agency and Ameren

that at least in part addresses the proposal

here?

MR. RIESER: Again, this is exactly

the type of question that goes to the

process. The memorandum of the statement --

the joint statement that's been presented is

the statement that's intended to embody the

agreement between Ameren and the Agency.

Obviously, there are ongoing discussions that

are still taking place, as there are between

all of the other companies. We still have

the CAIR rule-making that's coming up. So

there are ongoing discussions on these

things, but the joint statement is what we

are presenting to the Board for the Board's

L.A. REPORTING (312) 419-9292

124

consideration.

MR. ZABEL: Madam Hearing Officer,

Page 3 of the statement, the paragraph at the

top, the very last sentence, "And any further

reductions needed would first come from other

sources." I think the Board -- and

certainly, we would like to, but I think the

Board is entitled to know the other agency

involved in the proposal that has made an

agreement with Ameren that affects this

movement.

MR. RIESER: Well, and there's a

question that's being put to Mr. Menne later

on about this very point, what does this

mean, what do you mean by other sources, and

he's prepared to answer that question. So

it's hard to see where we go with going

further on this. He's ready to answer the

question, as is the Agency.

MR. ZABEL: And I think the Board

ought to know as it's memorialized in the

agreement, whether now or if he answers that

further question.

HEARING OFFICER: Where were you

L.A. REPORTING (312) 419-9292

125

reading from Mr. Zabel? I'm sorry.

MR. ZABEL: It's on Page 3 of the

joint statement. It's the paragraph that

ends at the top. It's the very last cause in

that paragraph.

HEARING OFFICER: I have to agree with

Mr. Zabel on this too. I think we need to

know if there's a formal agreement that

Ameren, by making this agreement, that is now

going to place a more significant --

intentionally more significant burden on

other sources, and if there's a formal

agreement to that end with the Agency.

MR. MENNE: Well, I think the

agreement is written right here, just what it

says, "Any further reductions needed would

first come from other sources," and it's

signed by us and them as well. If you're

asking if there is another written document

that specifies that, I personally have not

seen any document to that effect. I'm not

saying that any does not exist. There were

some drafts that were made. All I could say

is, to my knowledge, I have not seen anything

L.A. REPORTING (312) 419-9292

126

that's been signed written by either us or

the Agency on that.

HEARING OFFICER: Thank you.

MR. ZABEL: I don't want to ask

technical evidentiary questions because we

don't do that in this proceeding. Mr. Menne

is testifying on behalf of his company. He

may not know it personally, but the question

was directed towards him. So I'll direct it

to the Agency, since they're here to testify

today. Mr. Menne may well not know, and I

accept his answer, but that doesn't mean it

doesn't exist.

MR. ROSS: It's my understanding there

are three documents that memorialize the

agreement. The first one being the joint

statement that was submitted to the Board and

signed by both parties. There's the

multi-pollutant standard itself, and finally,

there is a letter of understanding. And I

might as well continue on to 8A.

MR. ZABEL: We'd like a copy of the

letter for the record.

MR. ROSS: I believe that --

L.A. REPORTING (312) 419-9292

127

MR. RIESER: It's my understanding,

just to follow-up on this, that that letter

of understanding is not final. It's still

being negotiated, and the question was, is

there a final agreement, and the answer, as I

understand it, and Mr. Ross may have a final

thing that I haven't seen, is that there was

not. So I don't know what purpose it would

serve to present a draft of an agreement --

present a draft of an agreement that's not

final. Again, negotiations are continuing

with respect to the CAIR issues, with respect

to other issues, so...

HEARING OFFICER: Would you like to

ask Mr. Ross if there's a final agreement, or

would you like me to swear you in?

MR. RIESER: No, I don't want you to

swear me in.

HEARING OFFICER: Would you like to

ask Mr. Ross if there's a final agreement or

if it's a draft agreement?

MR. RIESER: Mr. Ross, is this a draft

that you're thinking about or has this been

signed?

L.A. REPORTING (312) 419-9292

128

MR. ROSS: It has not been signed by

both parties, so I would assume that would

make it not finalized.

MR. ZABEL: Is it signed, Mr. Ross, by

one of the parties?

MR. ROSS: I believe it has been

signed by one of the parties.

MR. ZABEL: Which one, Mr. Ross?

MR. ROSS: By Ameren's representative.

MR. ZABEL: And has it been tendered

to the Agency for its signature?

MR. ROSS: I believe that's the

status.

MR. ZABEL: You probably could file

background with the Board, and if they want

to amend it when it's signed by the other

party, when it's changed, I certainly have no

objection to that, since this is a fairly

expedited proceeding, and we may never see it

otherwise.

MR. RIESER: Again, I'm going to

object as just not having any relevance

whatsoever to this proceeding.

MR. ZABEL: Without seeing it, it's

L.A. REPORTING (312) 419-9292

129

hard to answer that.

MR. RIESER: Well, the Board could

look at en camera. We could see where we are

at the end of the questioning to see whether

it's meaningful.

HEARING OFFICER: I'm, frankly,

disagreeing upon having a draft included, and

the reason being is that it could change, and

I think the joint statement speaks for

itself. I would ask that if it's finalized,

then that be included into the record.

MR. ZABEL: I'm afraid, Madam Hearing

Officer, and I hate to say this, I'm very

reluctant, but it's a perfect excuse for them

not to have a second signature until these

proceedings are over. I'm sorry to say that,

but the way this proceeding has gone, I have

to put that on the record for our own appeal,

if nothing else.

HEARING OFFICER: I appreciate that,

Mr. Zabel. Question number nine.

MR. MENNE: Question number nine, in

drafting the MPS, was any consideration given

to the compliance issues of other companies

L.A. REPORTING (312) 419-9292

130

subject to the proposed mercury rule?

I would see if the Agency wants to

respond to that. In my view, there was

certainly no conscious attempt to exclude any

others from -- we knew this would have a

general applicability, but our discussions

were simply on Ameren and how this would fit

into Ameren's position. We briefly discussed

other companies and whether or not they would

comply, but it was not -- we didn't have any

sufficient information as to the other

companies and how that would fit into the

rule, and the Agency did not go into that.

So I can't say it was not discussed, but only

in a statement here or there, not to any

extent. And I think that covers 9A.

And 9B is, to my knowledge, there

is no provision or language that was

specifically drafted to address other

companies.

HEARING OFFICER: Mr. Bonebrake.

MR. BONEBRAKE: Mr. Menne, I think you

said -- you were addressing question nine

from your perspective, and you didn't know

L.A. REPORTING (312) 419-9292

131

whether the Agency had any further input with

respect to question nine. Does the Agency

have a further response with respect to

question nine?

HEARING OFFICER: Obviously,

Mr. Romaine had his hand in the air.

MR. KIM: You saved me the trouble.

Thank you.

MR. ROSS: And the answer is yes,

other consideration was given to

other companies -- or consideration was given

to other companies. First, I would like to

state that since at least as early as the

stakeholder meetings, we have offered to meet

with anyone to discuss the proposed rule and

industries' concerns, and the offer to meet

was to any of the power plants, environmental

groups or anyone involved in this rule.

Obviously, Ameren took us up on it, and we

have worked out an agreement, which we are

now discussing.

Since the announcement of the

Ameren agreement, we have met with several

more companies, including Midwest Generation,

L.A. REPORTING (312) 419-9292

132

Dynegy and Dominion Kincaid. We have been in

active negotiations with at least one of

these companies.

Back to consideration given to

others and drafting the MPS. In the proposed

MPS, the standards for NOx and SO2 given

option, that is to either comply with a

numerical emission rate in pounds per million

BTU or a percent reduction from a baseline

emission rate, whichever of the two is more

stringent. The pounds per million BTU

standard were arrived at via discussions with

Ameren. The percent production standards

were put there specifically for other

companies. These percent reductions are

actually less than the reductions Ameren

needs to achieve to meet the numerical

emission rates of the MPS. Therefore, the

MPS actually requires others who desire to

use it or opt in to use it to get less of a

percent reduction in SO2 emissions

specifically. This is based on the fact that

we looked at what other companies are

currently doing in the way of emission

L.A. REPORTING (312) 419-9292

133

control and where they could reasonably be in

the future with some level of additional

control.

So we have looked at each company

in the state individually in terms of what

their current emission rates are and where

they could get with good pollution control,

and we are open to more discussions with

companies on the MPS, although, timing now is

somewhat of an issue. It's important to note

that as the MPS is currently written, it is

available for use by all. It is not limited

to Ameren.

B, please identify any

provision --

HEARING OFFICER: Mr. Zabel.

MR. ZABEL: I'd like to follow-up on

that and show Mr. Ross a document, if I may?

HEARING OFFICER: Sure. Mr. Zabel has

handed me a document analysis of Ameren's

multi-pollutant alternative to Illinois'

proposed mercury rule. If there's no

objection, we'll mark this as Exhibit 78.

Seeing none, we'll mark this as Exhibit 78.

L.A. REPORTING (312) 419-9292

134

MR. ZABEL: Mr. Ross, have you seen

the document before?

MR. ROSS: I have seen it, yes.

MR. ZABEL: At the moment, I'm only

going to ask you a couple of questions in

light of what you just said about percentage.

Turn to Page 3, please, of that document.

MR. ROSS: Okay.

MR. ZABEL: Do you see the table?

MR. ROSS: Yes, I do.

MR. ZABEL: A 30 percent reduction of

Ameren would put them at about 0.33, would it

not -- 35 percent. I'm sorry. The first

stage of the Ameren proposal. I'm sorry. I

misstated that 65 percent reduction.

MR. ROSS: Yes, I believe a 65 percent

reduction.

MR. ZABEL: 65 percent, 35 percent of

current emission.

MR. ROSS: Right.

MR. ZABEL: That would put Ameren,

would it not, at about -- on this average

that's shown on this table at about 0.33,

which is the standard in the proposal?

L.A. REPORTING (312) 419-9292

135

MR. ROSS: Well, actually, I

believe -- if you want to be specific --

MR. ZABEL: I can pull out a

calculator and hand it to you if you'd like.

MR. ROSS: I don't think that's

necessary.

HEARING OFFICER: Mr. Zabel, where

exactly are you?

MR. ZABEL: I'm looking at the table

on the bottom of the page where it says

annual SO2 emission rates.

MR. ROSS: And you ask this in a later

question, and we'll get to it, but I believe

the actual percent reduction of 68.7 gets

them to 0.33, and that's from a starting

emission rate at 1.053.

MR. ZABEL: So it's slightly different

than the average shown here?

MR. ROSS: That's correct.

MR. ZABEL: And applying that same

percent let's say for Dominion, what would

they end up at?

MR. ROSS: A lower emission rate

mainly due to the fact that they emit at a

L.A. REPORTING (312) 419-9292

136

higher rate at this time.

MR. ZABEL: It looks to me that they

emit at a lower rate than Ameren.

MR. ROSS: Or a lower rate at this

time, that's correct, lower rate.

MR. ZABEL: So the percentage

reduction requirement that it's the more

restrictive of the two between the 0.33 and

the 65 percent reduction --

MR. ROSS: Right, so --

MR. ZABEL: Let me finish the

question, Mr. Ross. It puts every single

company to a lower rate than Ameren, would it

not?

MR. ROSS: I believe that's correct

due to Ameren having a higher starting point.

MR. ZABEL: So, in other words, the

others who have done better, but in the past,

so they'll be punished for it; is that right,

Mr. Ross?

MR. ROSS: No, that's not correct.

Actually, they'd need to reduce emissions at

a lower percentage. As I stated, Ameren will

be required to reduce their emissions

L.A. REPORTING (312) 419-9292

137

68.7 percent, and the rule only requires that

others would reduce 65 percent.

MR. ZABEL: But to a lower level than

Ameren, it would have to be at; is that --

MR. ROSS: A lower level due to

Ameren's higher starting point.

MR. ZABEL: Due to the fact that

Ameren is currently emitting almost twice as

much sulfur as any of the others?

MR. ROSS: I wouldn't say that's an

accurate --

MR. ZABEL: Average emission rate.

MR. ROSS: I still say that's not

accurate.

MR. ZABEL: Significantly higher, I'll

eliminate double.

MR. ROSS: Higher than.

MR. ZABEL: And aren't all of these

companies competitors of Ameren?

MR. ROSS: I believe they would be.

MR. ZABEL: And in your experience,

the lower the rate in pounds per million, the

more expensive it is to control?

MR. ROSS: Not necessarily.

L.A. REPORTING (312) 419-9292

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MR. ZABEL: Why not?

MR. ROSS: Well, I believe what we're

looking at here -- we look at what every

company currently has, what Level of SO2 to

control, and we're looking for every company

to get a good level of SO2 control.

Now, a lot of the arguments we've

been hearing as we discuss this with other

companies is they believe that low sulfur

coal gets them to that level, and that is not

our belief. We believe a good level of

sulfur control, you require scrubbers on some

of the units, not necessarily all of the

units, but certainly the larger capacity

units would need scrubbers to get down below

the point -- or at or below 0.25 pounds per

million BTU level.

So how much does it cost the

company? A scrubber would probably cost in

the same range. Each company would pay the

same amount for a scrubber. I mean, it's

dependent on a lot of factors, but based

on -- if one company had a 300-megawatt

plant, they would probably pay about the same

L.A. REPORTING (312) 419-9292

139

rate if they were using the same coal and all

the other wide parameters that affect

operations at a coal plant, they'd probably

pay roughly the same amount for a scrubber

than someone else who ran a 300-megawatt

plant.

MR. ZABEL: Dominion would have to be

at the rate based on these numbers of 0.15,

would it not, at a 70 percent reduction -- or

30 percent reduction?

MR. ROSS: I haven't done the

calculations, but probably that sounds right.

That sounds like a rate they could get to

with the addition of a scrubber. Like,

Ameren is being required to put on scrubbers

to get to their rate.

MR. ZABEL: And its competitor,

Ameren, would be at 0.25; is that correct?

MR. ROSS: That is correct, again, due

to their higher starting point, but again,

Ameren would have to reduce emissions more at

a higher percent than any of the other

companies, and it's more profound when you

get to the Stage II.

L.A. REPORTING (312) 419-9292

140

It's two phases. There's Phase I

and Phase II. So when you get to the

Phase II of the SO2 requirements, it's a

0.25 pounds per million BTU limit, and the

actual reduction that Ameren will be required

to achieve to get to that 0.25 pounds per

million BTU is 76.3 percent, whereas, other

companies would only be required to reduce

their SO2 emission to 70 percent.

MR. ZABEL: To a much lower rate than

Ameren, nonetheless?

MR. ROSS: To a lower rate than

Ameren, and that's mostly due to the fact

that Ameren does continue to burn some

Illinois coal.

MR. ZABEL: Well, isn't 0.15 about

40 percent of 0.25?

MR. ROSS: I'd have to do the --

MR. ZABEL: Feel free to do it. It

doesn't take long.

MR. ROSS: I don't have a calculator.

MR. ZABEL: You can't do that one in

your head?

MR. RIESER: Objection.

L.A. REPORTING (312) 419-9292

141

MR. ZABEL: No further questions at

this time on that exhibit.

MR. KIM: Is this exhibit being

offered into evidence?

HEARING OFFICER: Yeah, I already

asked for objections for purposes of the

record.

MR. KIM: I'm sorry. I didn't hear

that. I was just curious if we could get a

little foundation as to how this -- where

this document originated or who prepared it

or how it --

MR. ZABEL: Mr. Ross identified that

he'd seen it before.

MR. ROSS: I've seen it before, but I

did not generate that document.

MR. ZABEL: I didn't ask you if you

generated it.

MR. KIM: Again, Mr. Zabel offered an

exhibit. I'm simply asking if we could get

some basic information from him as to what

this exhibit represents, who prepared it, how

it came to be and how it is he's submitted it

today. I don't think that's asking anything

L.A. REPORTING (312) 419-9292

142

unusual.

MR. ZABEL: It's a document used on

cross-examination. I introduced it solely

for that purpose at this point. If you want

to introduce it on our direct case, we will.

He's identified it, and he's seen it before.

It speaks for itself. He's answers the

questions. I don't think anything more is

necessary.

HEARING OFFICER: Excuse me. This was

not offered for the truth of any matter

asserted in here. It's been admitted as an

exhibit for cross-examination purposes, and

there's no intent that this information

should be considered as testimony.

MR. KIM: That's fine. Thank you.

MR. ZABEL: I mean, I'm happy to ask

Mr. Ross, if it helps the Board, to look on

the last page and identify the tag line, if

he can.

MR. ROSS: G:/KK/Laurel/ANALYSIS OF

AMEREN AMPS.7-21-06.doc.

MR. ZABEL: Does that mean anything to

you, Mr. Ross?

L.A. REPORTING (312) 419-9292

143

MR. ROSS: That means that it was most

probably generated by our bureau chief,

Laurel Kroack, since her name appears in the

document name.

MR. KIM: And I think my question

would probably be mirrored by Mr. Zabel, if

we offered up for any purpose a document that

had been prepared by his client and not by

us.

MR. ZABEL: I offered it for cross,

and I expect the Hearing Officer to be doing

the same.

HEARING OFFICER: Yes, again, this is

not offered as the truth of the matter

asserted. It is offered to establish a

point. I don't think any of us is going

to -- let's just say that the Board will not

accept as a fact what these averages are,

unless they're presented in direct testimony

at a later date and time. They were

presented to make a point, which I think is

made.

MR. KIM: Thank you.

HEARING OFFICER: Dr. Girard?

L.A. REPORTING (312) 419-9292

144

DR. GIRARD: I'd like to ask a

clarifying question about this memorandum of

understanding between Ameren and the Agency.

Does this deal with mercury NOx

and SO2, or does it just deal with NOx and

SO2?

MR. ROSS: I believe it just deals

with NOx and SO2.

HEARING OFFICER: Ms. Bassi, you have

follow-up?

MS. BASSI: Yeah. Mr. Ross, you were

saying that in your -- in, apparently, the

Agency's opinion, you want every company to

reach a, quote, good level of sulfur control

on at least some of the larger units or maybe

you said on the larger units; is that

correct?

MR. ROSS: I don't think that's

exactly what I said. I said the Agency, to

some degree, needs companies to reach a good

level of SO2 control in order for us -- you

know, the big picture here is we have two

major nonattainment areas in the State of

Illinois, the greater Chicagoland area and

L.A. REPORTING (312) 419-9292

145

the East St. Louis Metro East area

nonattainment for the ozone and PM 2.5

National Ambient Air Quality Standards. So

we have to make a -- we have to come up with

a plan, as you know, to achieve those

standards at some point in time, and in order

to do that, we need reductions in NOx and

SO2. NOx being a precursor to both PM 2.5

and ozone, and SO2 being a precursor to

PM 2.5.

So in order to get the reductions

in SO2 that we feel we need to help us in our

attainment demonstration, that low sulfur

coal, which I don't think -- there is no

formal category to classify that for what

level of SO2 control that constitutes, but we

need a higher level than that at our plants

in the State of Illinois to help us in our

attainment purposes -- needs.

MS. BASSI: Is there a difference in

the environment as to whether the lower

sulfur rates that are emitted come from low

sulfur coal or other control measures?

MR. ROSS: No, they're not, but what

L.A. REPORTING (312) 419-9292

146

we see with low sulfur coal is a lot of

companies are using 100 percent low sulfur

coal, and what mission rate that takes them

to is around in the 0.5 to 0.6 pounds per

million BTU area, and we need lower than

that. We need 0.25 or lower.

MS. BASSI: And before we venture into

this discussion and much further, is that the

scope of this hearing?

HEARING OFFICER: I was just about to

interrupt and point out that, as interesting

as these questions are, I think these

questions belong to Member Johnson and

Hearing Officer Knittles. I understand that

because Ameren has included in their joint

statement SO2 and NOx, that we need to get

some points on it, but I think we're getting

into way too much detail for this proceeding.

I believe, Mr. Ross, we were at 9B.

Mr. Bonebrake, do you have a follow-up?

MR. BONEBRAKE: I did have a

follow-up. First, part of our concern here,

Madam Hearing Officer, is the proposal that's

been signed (inaudible) not the support that

L.A. REPORTING (312) 419-9292

147

we typically expect to see, and that's one of

the reasons why these questions are being

presented. There has been a joint proposal,

and we're asking questions about background

regarding the proposal.

My specific follow-up relates to

Exhibit 78 and the SO2 table, Mr. Ross, and

what Mr. Zabel was asking you questions

about. To your knowledge, are the numbers on

the S02 table on Page 3 of that exhibit

correct?

MR. ROSS: To my knowledge, they are

most likely correct. The difference I was

citing is that the average -- the final

column in that bottom table, that's the

average of 2002 through 2004. What the MPS

baseline is determined by is the average of

years 2003 through 2005, and that's what I

was referring to. We -- I was referring to

the actual baseline rate that the MPS uses to

determine reductions from.

MR. BONEBRAKE: And the 2003 through

2005 numbers on this chart, you believe to be

correct?

L.A. REPORTING (312) 419-9292

148

MR. ROSS: Yes, they are correct.

HEARING OFFICER: Mr. Ross, we were at

question 9B.

MR. ROSS: 9B, please identify any

provision or language of the MPS that was

drafted to address such issues.

And as I stated, the MPS provides

an option for compliance, an emission rate or

percent reduction. Ameren will most likely

meet the numerical emission rate. So

intuitively, the percent reduction

requirement was established for use by other

companies. That takes us to ten.

HEARING OFFICER: You know what? Do

you have follow-up?

MR. BONEBRAKE: I do have a follow-up.

HEARING OFFICER: Okay. Go ahead.

MR. BONEBRAKE: Just for

clarification, the percentage reduction was

established by the EPA, rather than Ameren;

is that correct?

MR. ROSS: That's correct.

HEARING OFFICER: With that, before we

proceed to question number ten, let's take

L.A. REPORTING (312) 419-9292

149

about a ten-minute break, and we'll come

back, and we'll shoot to going until

about 5:30.

(Whereupon, a break was taken,

after which the following

proceedings were had.)

HEARING OFFICER: Back on the record.

I think we're at question number ten.

MR. MENNE: Based upon your and the

Agency's analysis of the MPS, what other

companies do you and the Agency believe could

cost-effectively take advantage of the MPS?

Again, this is one of those

questions where you're talking about

cost-effectively, how other companies could

comply, I really don't have any information

to answer that question.

HEARING OFFICER: Does the Agency have

anything to add?

MR. ROSS: Yes. Again, we believe the

MPS is available to all companies, and the

more that use it, we're fine with that. The

most obvious candidates, we believe, besides

Ameren, who we fully believe will use it, are

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150

Dynegy and Midwest Generation, who have large

fleets of coal-fired power plants in

Illinois. Others have evaluated and at least

one other large has indicated that there may

be the potential for them to use it with some

minor tweaks to the percent reduction in

maybe a few other spots in the proposal, but

without face-to-face meetings and

discussions, the IEPA is hard-pressed to

evaluate what other companies can and cannot

do.

HEARING OFFICER: Mr. Bonebrake.

MR. BONEBRAKE: Mr. Ross, has there

been any assessment by the Agency of the

controls that other companies would be

required to install in order to be eligible

for and comply with the MPS?

MR. ROSS: To some degree, yes, and I

say to some degree because we have sat down

with Ameren extensively and gone over what

controls would be required, and we have sat

down with another company and gone over what

controls would be required specifically to

utilize the MPS. So at least with those --

L.A. REPORTING (312) 419-9292

151

with two companies, we have gone over in

detail what additional controls would be

required to utilize the MPS.

MR. BONEBRAKE: With the exception of

those two companies, has the Agency conducted

any such assessment?

MR. ROSS: Yeah, to -- yes, to some

degree, in that we have looked over each

plant or each company individually at their

fleet of power plants and looked at their

level of control and made a preliminary

determination on what additional controls may

be needed to utilize the MPS, such as I spoke

of earlier, that we believe low sulfur

coal -- use of low sulfur coal alone will not

get you to the levels required to utilize the

MPS. You would require some additional

scrubbers to get there -- a company would

require some additional scrubbers to utilize

the MPS, or for those companies who have no

scrubbers, it would be, they would have to

install some scrubbers.

HEARING OFFICER: Ms. Moore?

MS. MOORE: In looking over the other

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152

corporations and how they might use the MPS

and what might actually be needed in order

for them to comply, was there any

consideration given as to improvements that

might have been ongoing or under a court

order or some improvements for emission

reduction that might have been made in the

last several years?

MR. ROSS: Yes, there was. We've

looked at consent decrees that require

controls be installed over a time frame and

what level of control is achievable from

those additional controls required by that

decree.

MS. MOORE: And beyond the decree, if

someone had made some investments that were

significant over a period of years, and then

benefitted from some reductions, was there

consideration given to that?

MR. ROSS: To some extent, in that

what we're looking at, kind of, is what each

system has in place at this time and where

they can -- and what level of control they

have, whether it be medium -- and again,

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153

there's no specific table or chart you can

look to that says this constitutes medium

level sulfur control, this is good level

sulfur control, this is high level sulfur

control, but you can look at a system and see

basically what they are doing to control SO2

emissions and where they could do better and

what rate they're emitting at now and where

they could reasonably get to with the

installation of some additional sulfur

controls, such as a scrubber.

MS. MOORE: Thank you.

HEARING OFFICER: Ms. Bassi?

MS. BASSI: I have to come back to a

question that I was asking earlier, which is

what is the difference to the environment if

the reduction in sulfur rate comes through

the type of coal that's burned through a

control device, and it sounds to me like --

is it true that what the Agency has done is

evaluated the control devices, or lack

thereof, that are at the various plants,

rather than looking at the level of sulfur

rate that can be, I want to say tolerated,

L.A. REPORTING (312) 419-9292

154

which is probably not the best word, in order

to meet whatever the environmental goal is

that's not the subject of this particular

proceeding?

MR. ROSS: I will answer that the same

in which I answered it before that we believe

low sulfur coal and the emission rate that

corresponds to that does not get you low

enough for our needs, and that is what we're

seeing for companies that use 100 percent

western subbituminous coal, low sulfur coal,

also known as low sulfur coal. Their typical

emission rates are in the range of 0.5 to 0.6

pounds per million BTU. The emission rates

we're looking to get down to are, obviously,

0.25 and below. We believe that constitutes

a level of control that we need in Illinois.

MS. BASSI: The question is, why is it

necessary in an MPS, which prescribes certain

control measures as opposed to just an

emission rate?

MR. ROSS: The MPS only addresses

emission rate and percent reduction. We're

not telling companies that they need to

L.A. REPORTING (312) 419-9292

155

install any particular controls to get there.

They can get there as they see fit. So we

are basing our rule on the emission rates

that are needed in the State of Illinois, but

we believe -- well, obviously, the use of low

sulfur coal alone cannot get you there. So

the most logical, reasonable way to get

there, most straightforward is to install SO2

scrubbers.

MS. BASSI: Why is there not an equal

emission rate for all companies?

MR. ROSS: Again, we discussed that to

some degree that all companies are not equal

in their starting point. Some companies -- I

mean --

MS. BASSI: Excuse me --

MR. ROSS: Pardon? I missed that.

Could you repeat that, please?

MS. BASSI: No, I interrupted. I

apologize.

MR. ROSS: Well, there's different

starting points for different companies. As

your witnesses will testify and our witnesses

testified in the first hearing, each plant

L.A. REPORTING (312) 419-9292

156

and each unit, there's a wide variety of

operating parameters. There's different

boiler types. There's different coal types,

et cetera, et cetera, and so what we looked

at is each -- what's actually occurring in

Illinois at this period, what each system is

actually doing and where we need to get to as

far as the level of SO2 and NOx control that

we need in Illinois, and what can be

reasonably achieved, and we discussed what

can be reasonably achieved with several

companies.

MS. BASSI: Let me put it another way.

Generally speaking -- and I want to make this

just a general statement because I don't have

the rules all memorized, but generally

speaking, a rules of general applicability as

an emission rate or percent reduction, it

doesn't have -- nevermind. I'm --

MR. ROMAINE: I'll answer that

question. This is Chris Romaine. We have

many regulations that give people choices of

either an emission rate or a control

efficiency requirement that allow people to

L.A. REPORTING (312) 419-9292

157

start from different places to achieve

environmental objectives.

HEARING OFFICER: Question number 11.

MR. MENNE: Page 3 of your testimony,

you state that Ameren will work with EPRI to

evaluate ways for continuously measuring

mercury emissions.

HEARING OFFICER: That's EPRI for our

court reporter.

MR. MENNE: Oh, sorry. EPRI. Does

Ameren have doubts about how to continuously

measure mercury emissions, i.e., that such

measurements cannot be made now with reliable

accuracy?

The simple answer to that question

is yes.

MR. ZABEL: We like simple answers,

Mr. Menne.

HEARING OFFICER: Question number 12.

MR. MENNE: Your testimony states that

Ameren is determined to find out how

effective this type of technology activated

carbon injection will be on our generating

units and that we do not believe Ameren's

L.A. REPORTING (312) 419-9292

158

system can make the IEPA 90 percent reduction

requirement with HCI, and that's halogenated

activated carbon injection, alone.

A, does this mean that Ameren

questions the Agency's assertion that

non-halogenated activated carbon injection,

ACI, or HCI, will achieve 90 percent

reduction in mercury emissions reliably?

The key to this question is the

word reliably, in my view, and that is -- as

I mentioned in my opening statement, that is

where our concern is that we would be able to

achieve 90 percent reduction just using ACI

reliably in that short period of time.

Part B, what additional controls

would be required to reliably achieve

90 percent reduction?

This is really a -- the answer to

this is that it's very site-specific. I have

seen test data which shows that you can get

90 percent removal with certain types of

activated carbon injection to reliably remove

90 percent. Some of the other options are to

use a wet fluid gas desulfurization

L.A. REPORTING (312) 419-9292

159

combination with selective catalytic

reduction. Another option would be a spray

drier absorber or fabric filter in

association with activated carbon injection.

There's a number of technologies that we

believe we could get 90 percent. At least

there's test data to suggest that you could

if you put on a lot of control -- or a lot of

different control, but it's very

site-specific on different units.

HEARING OFFICER: Mr. Zabel.

MR. ZABEL: Mr. Menne, if there were

no MPS promulgated with the Board's rules,

would Ameren rely solely on ACI --

halogenated ACI for compliance?

MR. MENNE: No.

MR. ZABEL: What else would you rely

on?

MR. MENNE: We believe that we would

have to put at least fabric filters or bag

houses on each one of our units in

combination with ACI or a scrubber of some

form.

MR. ZABEL: So by doing the MPS, you

L.A. REPORTING (312) 419-9292

160

won't have to meet the 90 percent or 0.0080

in 2009; is that correct.

MR. MENNE: That's correct.

MR. ZABEL: So under the MPS, it's

basically the Agency that takes the risk that

it's right, whereas, for everyone else under

the rule, they have to take the risk; isn't

that the case?

MR. MENNE: I'm not sure I understand

your question. If you try to comply with the

rule, you can take whatever risk you have

with the controls that you put on.

MR. ZABEL: That was a complex

question. I apologize. Let me break it up.

If the MPS is included in the

rule, Ameren opts for it, you will install it

with the exception of the small unit, ACI and

all the remaining units; is that correct?

MR. MENNE: On most of them, yes,

scrubbers.

MR. ZABEL: Scrubber units,

understood, but on all the rest of the units

install the ACI?

MR. MENNE: That's correct.

L.A. REPORTING (312) 419-9292

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MR. ZABEL: And you would operate with

good operating practices and whatever went

with that?

MR. MENNE: Yes.

MR. ZABEL: And you would be in

compliance of the rule?

MR. MENNE: Presumably, yes.

MR. ZABEL: So if the Agency's

testimony that that technology is sufficient

for 90 percent is, in fact, wrong, you would

not be taking a risk of an enforcement action

under those circumstances, would you?

MR. MENNE: No, because we'd be in

compliance with that provision of the rule.

MR. ZABEL: But if the Agency was

wrong, and another source did not opt for the

MPS, then it takes the risk of an enforcement

action, doesn't it?

MR. MENNE: The company, you're saying

takes the risk?

MR. ZABEL: Yes.

MR. MENNE: Yes, that would be true.

MR. ZABEL: Thank you.

HEARING OFFICER: Mr. Bonebrake.

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MR. BONEBRAKE: Mr. Menne, I believe

you mentioned that, absent the MPS, in your

response to questions from Mr. Zabel, that

Ameren would install a bag house of condition

to ACI, is that correct, to its various

units?

MR. MENNE: That's what we were

assuming we would have to do, that's correct.

MR. BONEBRAKE: Did Ameren price those

bag houses?

MR. MENNE: Yes, we did. Well, I

would say yes. All these are kind of rough

estimates, but yeah, we took a rough shot.

MR. BONEBRAKE: Could you give us a

range of those bag houses?

MR. MENNE: On our system, it would be

$350 to $400 million.

MR. BONEBRAKE: That's bag houses on

all of your units.

MR. MENNE: That would be bag houses

on every unit that we would currently plan to

install ACI, correct.

MR. BONEBRAKE: And how many units

would that be again, Mr. Menne?

L.A. REPORTING (312) 419-9292

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MR. MENNE: Let's see. I believe that

would be 16 units.

MR. BONEBRAKE: And that $350 to

$400 million compliance would be in addition

to the cost associated with installation and

operation of the ACI; is that correct?

MR. MENNE: That's correct.

HEARING OFFICER: Sub C.

MR. MENNE: Given the Agency's support

for the MPS, which does not require a

90 percent reduction of mercury emissions in

2009, it appears that the Agency no longer

views a 90 percent reduction of mercury

emissions in 2009 to be necessary elements of

an Illinois mercury rule. Is that correct?

I'll have to defer to the Agency

with regard to that question.

MR. ROSS: And the answer to that is,

no, the Agency's position is that meeting a

90 percent reduction is necessary and

required, and the sooner the better.

MR. ZABEL: It's not going to be

required, is it, of most of the Ameren units

if they opt for the MPS; is that correct,

L.A. REPORTING (312) 419-9292

164

Mr. Ross?

MR. ROSS: It will be required of

94 percent of their capacity by 2015 and --

MR. ZABEL: That's not the question,

Mr. Ross. In 2009, will they be required --

MR. ROSS: In 2009, they are required

to install mercury controls or achieve

mercury control as a co-benefit by the end of

2009 on 94 percent of their capacity.

MR. ZABEL: Are they required to reach

0.0080 or 90 percent reduction in 2009?

MR. ROSS: No, they are not, not until

2015. So they are required to meet it, yes,

it's delayed.

MR. ZABEL: I'm asking about 2009.

MR. ROSS: Well, you stated that

they were not required to do that, and they

are.

MR. ZABEL: So if the technology that

they install -- this is the same question I

asked Mr. Menne, and I'll ask the Agency. If

they install the ACI as planned under the

MPS, install the 90 megawatts units, and the

scrubbers probably aren't needed, and in

L.A. REPORTING (312) 419-9292

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fact, that technology does not work, they're

in compliance with the rule, are they not?

MR. ROSS: They would be in compliance

with the mercury portion of that rule if they

operate that equipment in compliance with the

other requirements of that portion of the

rule, which has some operating parameters

that are required, and they must also comply

with the SO2 and NOx requirements in the

future.

MR. ZABEL: And that answer is Member

Johnson's concern. I'm sticking with mercury

at the moment, Mr. Ross, if they don't meet

90 percent, they're still in compliance in

2009, 2010, 2011, 2012, et cetera; is that

correct?

MR. ROSS: That's correct.

MR. ZABEL: Thank you.

HEARING OFFICER: Question number 13.

MR. MENNE: Does Ameren intend to put

all three of its companies into the MPS?

Our current intention is yes.

If so, does it have any commitment

to do so?

L.A. REPORTING (312) 419-9292

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It's kind of a technicality here

in terms of what the commitment is. We have

no commitment in terms of, you know -- this

would have to go to the Board of those

companies to get a commitment as to whether

they want to do that. So we don't have

anything that commits us to following that

path, but our intention is yes.

MR. ZABEL: Just to follow-up. The

three Ameren companies, what about Electric

Engineering?

MR. MENNE: It excludes it.

HEARING OFFICER: Ms. Bassi.

MS. BASSI: Just a clarification on

the question. You stated that you have the

intention to put all three of your Illinois

companies into the MPS. Is there a

requirement or a commitment that all three

have to go in as opposed to two or one?

MR. MENNE: Yes, the requirement is

all of the generating systems have to be MPS.

MS. BASSI: Including EEI?

MR. MENNE: That is correct, from my

understanding.

L.A. REPORTING (312) 419-9292

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MR. ZABEL: Is that how you interpret

the rule, or is that an agreement you have

with the Agency?

MR. MENNE: That's the way the rule --

I've been told the rule requires it.

MR. ZABEL: Thank you.

HEARING OFFICER: Question 14.

MR. MENNE: On Pages 3 and 4 of your

testimony, you indicate that Ameren reduced

emissions SO2 and NOx by 60 to 70 percent

over the past 15 years.

Subpart A, what has been the

reduction over that period for just the

Illinois units currently owned by Ameren?

Our calculations are that our NOx

rate on our units has been 70 percent

reduction. NOx tons is 62 percent

reductions. Our SO2 rate is 67 percent

reduction, and our SO2 tons are 56 percent

reduction.

B, is the historic 60 to 70

percent reduction in SO2 and NOx emissions

across the Ameren's fleet in Illinois a total

amount of the reductions of these two

L.A. REPORTING (312) 419-9292

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pollutants combined?

The answer is no. I just give you

the specifics. So that makes Part C moot.

Part D, does that figure include

or exclude EEI?

The figures I gave you include

EEI.

Part E, what are the percentage

reductions for just Ameren's Illinois

facilities?

It's the same as the answer I just

gave in A, those reductions would be the

same.

Question F, how do these emission

rates and pounds per million BTU of Ameren's

Illinois facilities compare to those of other

Illinois generators for SO2 and NOx?

And I did not make an attempt to

compare those. I do not know.

MR. ZABEL: Has the Agency?

MR. ROSS: Yes, as a matter of fact,

that was the table that you referred me to

earlier. That is a comparison of the

emission rates of all of the systems in

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169

Illinois.

HEARING OFFICER: Would that be

Exhibit 78?

MR. KIM: Yes.

MR. ZABEL: And you believe those

numbers are accurate, I think you testified;

is that correct, Mr. Ross?

MR. ROSS: I checked the numbers for

2003, 2004 and 2005 on the SO2 only for

Ameren, I believe, and I found those numbers

to be accurate.

MR. ZABEL: So you believe the rest

are as well?

MR. ROSS: I have no reason to not

believe it, but I have not checked them.

MR. ZABEL: Fair enough. Thank you.

HEARING OFFICER: Question number 15.

MR. MENNE: Page 4 of your testimony,

you state we do not believe Ameren can

achieve 90 percent reduction with HCI alone

because of the use of subbituminous coal and

SO3 -- I assume that should be conditioning.

Do you have any reason to think it

would be different for other similar units?

L.A. REPORTING (312) 419-9292

170

And the simple answer is no.

Part A, what is Ameren's schedule

for the installation of SO2 and NOx control

equipment?

Well, the schedule -- what we

intend to do is put in SO2 and NOx controls

to meet the rates that are given in the MPS

under the time frames that are given to the

MPS. We have commitments to putting some

scrubbers on some of our units early in Duck

Creek and Coffeen units. The remainder,

while we have looked at what type of

installations could be used to achieve those

rates, we'd like to keep the flexibility with

the developing technologies to be able to use

any technology that will get us to those

emission rates.

B, will Ameren continue to inject

SO3 until our installations are complete?

Our company will continue to

inject SO3 as long as it is required to meet

capacity in particular limits.

What is the quantitative effect of

this SO3 injection on mercury emissions?

L.A. REPORTING (312) 419-9292

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And here, I'm not sure I can

really give you a quantitative effect, and

I'm not an expert in mercury control

technologies. I believe Jim Stow (phonetic)

provided some testimony in the previous

hearings as to problems that occurred with

SO3 injection. I have seen some test results

that suggest when you use ACI in combination

with SO3 injection that can reduce the

efficiency of your carbon injection, and I've

seen numbers that range anywhere from 30 to

70 percent of control efficiencies. Again,

it's very site-specific. It depends upon a

lot of factors within a given unit; and I

believe others will be testifying to this in

a more quantitative fashion in the course of

the next week or two. That's about the best

I can do on that.

HEARING OFFICER: Question number 16.

MR. MENNE: What percent of the coal

Ameren burns in Illinois is from Illinois?

Currently, it's 16 percent.

MR. ZABEL: Mr. Menne, if I may, as a

follow-up, are those burned in scrubber

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units?

MR. MENNE: One of the units is

currently scrub. One of the units that burns

Illinois coal is currently scrub.

MR. ZABEL: Is there a unit on the

Ameren system burning Illinois coal that is

not scrub?

MR. MENNE: Yes.

MR. ZABEL: Which one?

MR. MENNE: I'm probably going to have

to defer that just to make sure my answer is

accurate.

MR. ZABEL: Is it burned in a blend?

MR. MENNE: At Coffeen, we are

currently burning Illinois coal at times and

subbituminous coal at times.

HEARING OFFICER: Question number 17.

MR. MENNE: On Page 8 (sic) of your

testimony, you state that all the MPS will

result in SO2 and NOx reductions above those

required by CAIR. Is this just considering

Ameren utilizing the MPS?

And, to my knowledge, the answer

to that question is yes.

L.A. REPORTING (312) 419-9292

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Part B, how much will the

reductions by Ameren exceed the reductions to

be achieved under CAIR?

What I'd like to do on this

question B and question C is defer these

questions to Anne Smith, who's really looked

at this more closely and better to answer the

question.

HEARING OFFICER: Before you do that,

I would note you read it as in reference to

Page 8 of your testimony, and it is actually

question 6 -- on Page 6 of your testimony.

You read it as on Page 8.

MR. MENNE: Oh, sorry.

HEARING OFFICER: That's all right,

just correcting it for the record.

MS. SMITH: The analysis that we did

of the MPS system produced lower emission

subjected to the NOx than the analysis that

we did of just the CAIR in line with the CAMR

rule, and the differences were associated

with Ameren emissions. They ranged from --

for SO2 from about 23,000 tons less per year

in term ten rising up to somewhere between 43

L.A. REPORTING (312) 419-9292

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and 45,000 tons per year difference in the

late -- time frame of 2015 through 2020, but

we ended the model at 2020.

For NOx, the emissions were

about -- they ranged between 1,200 tons per

year -- 1,200 tons per year and 2,600 tons

per year difference, always lower than for

the years from 2010 through 2020.

HEARING OFFICER: I want to clarify

when you refer to CAIR, you're referring to

the federal proposal for CAIR?

MS. SMITH: That's correct.

MR. ZABEL: Did you do any analysis of

the Illinois proposed CAIR comparison?

MS. SMITH: No, we did not.

MR. ZABEL: Did you do any analysis of

any post-CAIR requirements if they were

necessary in Illinois?

MS. SMITH: No, we did not.

MR. ZABEL: Do you believe that there

would be post-CAIR requirements in Illinois?

MS. SMITH: It's my understanding that

there's going to be an nonattainment issue,

and Illinois believes that a nonattainment

L.A. REPORTING (312) 419-9292

175

issue will remain even after limitation of

the Federal CAIR, that's my understanding.

MR. ZABEL: And it's your

understanding of the regulations that if that

nonattainment condition continues, additional

requirements will be necessary, to your

knowledge?

MS. SMITH: I'm sorry. I didn't hear

the question.

MR. ZABEL: If nonattainment

conditions continue after the CAIR,

additional requirements would be necessary in

Illinois, would they not?

MS. SMITH: In Illinois, it's not

clear to me exactly where reductions will

have to come from.

MR. ZABEL: But there would be a need

for additional reduction to demonstrate

progress towards attainment; is that your

understanding?

MS. SMITH: That's my understanding if

you have a nonattainment issue left after --

THE REPORTER: I'm sorry. Can you

repeat that? I'm sorry.

L.A. REPORTING (312) 419-9292

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MS. SMITH: It is my understanding

that if you would have to have a

nonattainment, that you have to have

additional reductions of S02 or NOx,

depending on what the nonattainment problem

is, if that nonattainment problem remains

after full limitation of the Federal CAIR

program.

MR. ZABEL: And it's your

understanding that the Agency believes it

would remain; is that correct?

MS. SMITH: It is my understanding

that they've projected NOx being a problem

after implementation of CAIR.

MR. ZABEL: Did you do analysis of

whether these reduced numbers would be lower

or higher than would be necessary in that

first CAIR?

MS. SMITH: I did not.

HEARING OFFICER: Question number

eight, please. I'm sorry. She answered

that. I apologize. Question C, does this

comparison exclude the possibility of

purchasing allowances under CAIR?

L.A. REPORTING (312) 419-9292

177

MS. SMITH: For that, I'd like some

clarification. What comparison exactly? In

which situation?

MR. ZABEL: The comparison you made, I

think, under MPS, assumes those requirements

and not the use of allowances; that's the

objective of the question.

MS. SMITH: Under the MPS, we require

certain technologies to be put in place that

would meet these emission rate limits that

are stated in the MPS, in the wording of it.

So those would be forced in controls and the

MPS system would achieve those rates at the

required times.

MR. ZABEL: And in your CAIR analysis,

were you assuming technology or purchasing

allowances?

MS. SMITH: We were not forcing in any

technology. We were assuming that units

would take the least cost approach in the

face of that marketplace for emission

allowances. So trading was permitted under

the CAIR analysis for any company.

MR. ZABEL: And in that analysis,

L.A. REPORTING (312) 419-9292

178

would Ameren have purchased allowances rather

than install the same level of technology as

the MPS?

MS. SMITH: They would have been

purchasing --

MR. RIESER: I'm sorry. Could I hear

the question back, please?

THE REPORTER: Can you repeat it?

MR. ZABEL: In your analysis of CAIR

for Ameren, would there have been less

technology installed than there is under the

MPS?

MS. SMITH: I haven't had a chance to

look at my notes.

MR. ZABEL: You can do that at any

time, Ms. Smith, feel free.

MS. SMITH: I cannot comment for NOx

because the NOx currently has not yet been

allocated under CAIR, but for SO2, it would

appear, from the model that we've done, that

they would purchasing allowances for SO2.

MR. ZABEL: And that would make that

differential much greater, doesn't it?

MS. SMITH: Yeah, the differential al

L.A. REPORTING (312) 419-9292

179

between --

MR. ZABEL: If you assume technology

for CAIR, rather than purchasing allowances,

the amount of reduction beyond CAIR would be

much less, would it not?

MS. SMITH: I'll just try to answer

it --

MR. ZABEL: I can rephrase.

MS. SMITH: Because the MPS achieves

greater reduction of SO2, than our simulation

of what Ameren would do under the CAIR rule,

there's less need for using allowances under

the CAIR rule by Ameren because their

emissions are lower; so to the extent that

they were purchasing, there would be less

need to purchase.

MR. ZABEL: What you have indicated --

maybe that question wasn't clear. That

there'd be 23,000 less tons of SO2 in the

MPS, than in CAIR in 2010; is that correct?

MS. SMITH: That's correct, in 2010.

MR. ZABEL: And is that because there

would be no technology installed under CAIR?

MS. SMITH: There is technology

L.A. REPORTING (312) 419-9292

180

installed under CAIR, not in every unit.

MR. ZABEL: I'm sorry?

MS. SMITH: There is some technology

in our simulation being installed under CAIR,

but it's not as much as what is given --

MR. ZABEL: How much of that 23,000

ton differential is attributable to the

lesser technology installed under CAIR?

MS. SMITH: Well, all of it,

basically, except that there may be some

differences, but they'd be small.

HEARING OFFICER: Question number 18.

MR. MENNE: On Page 6 of your

testimony, you state that the MPS will allow

Ameren to take advantage of the co-benefits

that established NOx and SO2 controls provide

for mercury control. A, what do you mean by

established controls?

I would characterize that as

installed hardware for SO2 and NOx controls,

such as scrubbers or selective reduction.

B, without the MPS, would Ameren

not be able to take advantage of co-benefits?

The answer is yes.

L.A. REPORTING (312) 419-9292

181

C, what do you mean by take

advantage of?

Basically, take advantage means

that by installing hardware, such as

scrubbers and SCR, you get mercury reductions

out of them as well. So you get the

advantage of reducing more than one pollutant

at a time. You also get the advantage from

an economic standpoint that you might be able

to get mercury reductions with your SO2

controls.

D, would units not in the MPS and

subject to the Illinois mercury also not be

able to take advantage of the co-benefits

from NOx and SO2 controls?

And the answer is yes.

Number 19, what is LADCO's Midwest

Regional Planning Organization list that you

refer to on Page 7 of your testimony? Please

provide a copy.

Do you have a copy?

MR. RIESER: We have a copy. This was

the round two modeling summary taken from

LADCO's website. We have a copy that we're

L.A. REPORTING (312) 419-9292

182

presenting here. It's actually an appendix

to this document. The document itself is

dated July 12th, 2005, and the address for

where we obtained the document is

www.ladco.org/regional_air_quality.html.

HEARING OFFICER: If there's no

objection, we'll mark this as Exhibit No. 79.

Seeing none, it's marked at Exhibit 79.

MR. MENNE: Number 20, isn't it

true --

HEARING OFFICER: Give me one second.

Because I'm still shaking my head as to the

answer to Question 18D, and I think I'm not

the only one. With a double negative in

there, I'm a little confused.

MR. ZABEL: Would you like me to

rephrase that question?

HEARING OFFICER: Could you please.

MR. MENNE: I'm not sure I answered it

right now that I see the double negative.

MR. ZABEL: For a unit that does not

opt for the MPS, would it be unable to take

advantage of the co-benefits, as Ameren is

under the MPS?

L.A. REPORTING (312) 419-9292

183

MR. MENNE: So if they're not in it --

MR. ZABEL: They don't opt in, will

they be able to take advantage of the

co-benefits the way Ameren is?

MR. MENNE: Well, they wouldn't have

the co-benefits from installing scrubbers and

other technologies, so they would not have

that, which we are required to do under the

MPS.

MR. ZABEL: Over the time schedule

that's set forth?

MR. MENNE: That's correct.

HEARING OFFICER: Thank you. Question

Number 20.

MR. MENNE: Isn't it true that USEPA

promulgated the CAIR and CAMR so as to allow

states and companies to coordinate and

synchronize the measures necessary to comply

with both programs because of the potential

co-benefits and inter-relationships that are

recognized under the MPS?

And my simple answer to that is

yes, I think that's the intention that's

specified in the preambles to those rules.

L.A. REPORTING (312) 419-9292

184

21, you state that the MPS will

provide substantial beyond-CAIR NOx and SO2

controls. What is beyond-CAIR?

When we make the statement

beyond-CAIR, we're talking about anything

that's more stringent than required by the

federal rules.

To your knowledge, is there any

evidence in the record of this proceeding

concerning SO2 and NOx emissions, existing

controls or proposed regulations?

To my knowledge, no. I can't

answer it fully because I haven't read the

whole record.

C, to your knowledge, is there

evidence in the record of this proceeding

concerning beyond-CAIR requirements?

And, to my knowledge, the answer

would be no.

Is this statement limited to

Phase II -- CAIR Phase II?

I guess my answer would be the

same, no, referring to --

MR. RIESER: Well, which statement is

L.A. REPORTING (312) 419-9292

185

referred to as being limited to CAIR

Phase II?

MR. ZABEL: I assume the answer to the

question is the same as C?

HEARING OFFICER: Ms. Bassi?

MS. BASSI: Just to clarify, does

beyond-CAIR refer to only the reductions that

might be required by CAIR Phase II?

MR. MENNE: No, it's for both Phase I

and Phase II.

Does the MPS provide controls

beyond CAIR Phase I?

And, again, that's going to be a

system by system determination, but I believe

for Ameren, it does, yes.

How does the MPS affect compliance

with CAIR Phase I, which has compliance dates

of 2009 for NOx and 2010 for SO2?

It does not. It doesn't.

G, will Ameren have to trade to

comply with CAIR Phase I?

Again, I can't really answer that

question. We're not sure because the way the

CAIR is going to be implemented in Illinois

L.A. REPORTING (312) 419-9292

186

has not been determined yet. We don't really

know what NOx analysis we're going to have

and what additional allowancing we might be

eligible for.

MR. ZABEL: Excuse me, Mr. Menne, is

that just for NOx?

MR. MENNE: Well, I answered with

regard to NOx. With regard to CAIR SO2,

again, I'd like to get back to this question,

if I can.

MR. ZABEL: Certainly, I'd rather have

you be comfortable with your answer.

MR. MENNE: Part H, is this similar to

the position of other companies, to the best

of your knowledge?

Again, I can't begin to answer

that.

HEARING OFFICER: Mr. Menne, I

actually have a couple of follow-up

questions, and this is as good a place as

any, and they're brought about by some of

these questions in the record in this mercury

proceeding regarding NOx and SO2.

One of my questions is, since the

L.A. REPORTING (312) 419-9292

187

CAIR rule has been proposed in Illinois,

would it be Ameren's intent and the Agency's

intent to also file this joint statement, or

have they already filed? Which I don't think

they have this joint statement in the CAIR

rule-making proceeding.

MR. ROSS: The Agency does not have

that intent, nor have we discussed that with

Ameren.

MR. RIESER: I have the same answer as

well. It's certainly something that we can

look at, but it wasn't our intent.

HEARING OFFICER: My next question is,

given that the actual ruling, which does

contain some standards, for lack of a better

word, at this point, for NOx and SO2, and in

fact, specifically cross-references

provisions of the proposed CAIR rule that

aren't currently adopted, would it be

feasible, for example, if the Board were to

decide to proceed with this proposal and

accept this proposal, but hold off on the

provisions for NOx and SO2 until the CAIR

rule; would that be feasible?

L.A. REPORTING (312) 419-9292

188

MR. RIESER: Well, obviously, this is

all for peace. Mercury reductions are based

on achieving the CAIR of NOx and SO2 levels,

so those have to be together somewhere.

We're certainly open to a discussion about

the -- whether -- we're looking at the issue

of whether additional language needs to be in

the proposed CAIR rule itself, so that the

rules are consistently coordinated. So

that's the best answer I've got.

HEARING OFFICER: And now we really do

have to swear you in.

MR. ZABEL: Does that mean I get to

cross-examine, Mr. Rieser?

HEARING OFFICER: Only to the

questions I just asked.

MR. RIESER: I guess I wasn't trying

to provide the factual information, but the

legal analysis of what the language of the

rule has to say or how things were being

addressed within the language of the rule

itself, which I guess I view as a legal issue

and not a factual question.

HEARING OFFICER: I'll let it go.

L.A. REPORTING (312) 419-9292

189

Question number 22.

MR. MENNE: How many coal-fired units

under 90 megawatts are in the Illinois

portion of the Ameren's system?

There's actually six.

What is their aggregate capacity?

Roughly, 280 megawatts.

B, isn't it true that two of the

three coal units at Grand Tower would not

have to have any mercury controls before

January 1, 2013, and might never be required

to meet a reduction or emissions rate

requirement?

Grand Tower was converted to gas a

few years ago, so they're not subject to the

rule.

C, isn't that also true for four

of the five coal units at Meredosia?

Yes.

D, isn't that true for all the

units in Hutsonville?

Yes.

MR. ZABEL: Mr. Menne, in your

discussions with the Agency, were there any

L.A. REPORTING (312) 419-9292

190

consideration about hot spots at the

Hutsonville plant for mercury controls at

least until 2015?

MR. MENNE: The discussion centered

around the fact that Hutsonville is within

relative -- relatively close proximity to our

Newton plant, which would be required to have

mercury controls on. So from a geographical

standpoint, there would be controls on units

in that area; but with regard to specifically

the hot spots for various small units, it's a

matter that is debatable.

MR. ZABEL: How far apart are the two

plants?

MR. MENNE: Roughly, 50 miles.

MR. ZABEL: And in what direction from

Newton is Hutsonville?

MR. MENNE: East.

MR. ZABEL: Which way are the

prevailing winds, Mr. Menne?

MR. MENNE: Generally southwest to

northeast.

HEARING OFFICER: Question 23.

MR. MENNE: How many coal-fired units

L.A. REPORTING (312) 419-9292

191

under 90 megawatts are operating in the State

of Illinois, including but not limited to

Ameren's units?

I believe I just mentioned six in

the Ameren system. I can't speak with 100

percent sure -- I don't know, but I've been

told that there are two others in the State

of Illinois, which would make it eight.

Why is 90 megawatt the threshold

between --

HEARING OFFICER: Ms. Bassi?

MS. BASSI: Does the Agency know the

answer to that question?

MR. ROSS: What was the question?

MS. BASSI: Number 23.

MR. ROSS: Eleven.

MS. BASSI: Thank you.

MR. ROMAINE: That's the total number.

HEARING OFFICER: Question number 24.

MR. MENNE: Why is 90 megawatts the

threshold between large and small units in

the MPS?

To be quite honest with you,

that's what we proposed because it fit the

L.A. REPORTING (312) 419-9292

192

Ameren system.

25, does the choice of

90 megawatts as the threshold provide

additional relief for Ameren that would not

be available to other companies?

Well, to the extent there's

11 units, obviously, there's units and other

systems that could take advantage of it.

26, what support is there in the

record in this proceeding for your statement

that participation in the MPS will contribute

significantly towards attainment of the ozone

in the PM 2.5 National Ambient Air Quality

Standards?

MR. RIESER: We looked for that

specific statement. I'm not sure we could

find that specific statement in the

testimony. So if you could point to it?

MR. BONEBRAKE: Why don't we pass the

question, and we'll take a look at the

testimony, then we can come back to it.

MR. RIESER: Super. Thank you.

MR. MENNE: 26A, has Ameren modeled

the effect of the MPS? Oh, we're going to

L.A. REPORTING (312) 419-9292

193

come back to this. Okay. 27.

HEARING OFFICER: Ms. Moore has a

question, I think.

MS. MOORE: No, that's okay.

HEARING OFFICER: Okay. Go ahead.

MR. MENNE: Well, I think 27 is the

same thing. It would be deferred as well

because it talks about significant

contribution.

MR. RIESER: Right.

MR. MENNE: 28, what other sources

does the provision of the joint statement

that any further reductions needed would

first come from other sources refer to?

Basically, all other sources that

is outside of Ameren.

HEARING OFFICER: Mr. Bonebrake?

MR. BONEBRAKE: Is that including, but

not limited to other electric generating

units?

MR. MENNE: That is our assumption,

yes.

MR. BONEBRAKE: What is the basis of

that assumption?

L.A. REPORTING (312) 419-9292

194

MR. MENNE: Well, I guess the basis of

that assumption is simply just taking the

statement on its face that's in the joint

statement, and that's the best way I can

answer that. I mean, we didn't specifically

talk about other types of sources and whether

they would go after it or anything like that.

I'm just talking on the basis of the

agreement that's in the joint statement.

MR. BONEBRAKE: And is that the

statement that's set forth in the joint

statement set forth in any other agreement

between Ameren and IEPA?

MR. MENNE: Again, not to my direct

knowledge, no.

HEARING OFFICER: Ms. Bassi, do you

have follow-up?

MS. BASSI: I found the answer -- or

the source for the question for 26, if it's

time to go there.

HEARING OFFICER: Go ahead.

MS. BASSI: It's in the joint

statement. It's in the next to the last

paragraph on Page 3 that says, "The level of

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195

NOx and SO2 reductions required in the

proposed rule is expected to contribute

significantly towards the state's efforts to

achieve attainment of the NAAQS," and I

shortened that.

MR. MENNE: Well, I think there's a

big difference between contribute

significantly towards the state's efforts to

achieve NAAQS, as opposed to significantly

contribute towards attainment. I don't

believe we made an analysis as to how much it

would contribute towards attainment of the

NAAQS, but I think the joint statement says

it contributes towards the state's effort to

achieve the NAAQS. I think that's a big

difference in -- at least, in our view. I

think the state believed that these

reductions were going to make a major

contribution to their efforts in attaining

the NAAQS, but we don't make a claim, on the

face it, that it will significantly

contribute to NAAQS attained.

MR. RIESER: And by NAAQS you mean,

National -- N-A-A-Q-S, National Ambient Air

L.A. REPORTING (312) 419-9292

196

Quality Standards for the reporter's benefit.

MR. BONEBRAKE: I have a follow-up

that's directed to the Agency, and again,

referring to Page 3 of the joint statement.

There appears to be a sentence that reads,

"Ameren and the Illinois EPA agree that

compliance with the multi-pollutant

alternative is both technically feasible and

economically reasonable, and that the level

of NOx and SO2 reductions required in the

proposed rule is expected to contribute

significantly towards the state's efforts to

achieve attainment of National Ambient Air

Quality Standards, and any further reductions

needed would first come from other sources."

That last phrase, "Further

reductions needed would first come from other

sources," would that apply to any and all

companies that would elect to participate in

the MPS? That is, the -- if, let's say

Dominion were to participate in the MPS as

well as Ameren, then with respect to both of

those companies, the Agency would go to all

other sources first?

L.A. REPORTING (312) 419-9292

197

MR. ROSS: Potentially, we believe as

a result of this agreement, Ameren's

coal-fired units will be well controlled.

That's the qualifier, so to say. So to the

extent that others who choose to utilize the

MPS, that their systems would also be well

controlled, then I would believe that we

would generally agree to a similar statement

with those companies. We've analyzed

exactly -- or potentially what Ameren needs

to do to comply with the MPS, what controls

would be put on their existing systems, and

the level of emissions they will achieve as a

result, and we believe that takes them to a

good level of pollution control.

HEARING OFFICER: We have a follow-up

from the audience.

MS. FRONTCZAK: I have a question for

the Agency.

HEARING OFFICER: You need to identify

yourself.

MS. FRONTCZAK: Mary Frontczak.

HEARING OFFICER: Can you stand up,

please? We can't see you at all. Thank you.

L.A. REPORTING (312) 419-9292

198

MS. FRONTCZAK: The MPS applies only

to existing units; isn't that right?

MR. ROSS: That's correct.

MS. FRONTCZAK: So a new unit would

still have to meet additional reductions?

MR. ROSS: A new unit would still need

to comply with the non-MPS portion of the

rule, that's correct.

HEARING OFFICER: Mr. Bonebrake.

MR. BONEBRAKE: My follow-up for

Mr. Ross, and maybe we're moving into

Question 29 a little bit here, but that is

whether there are -- whether the statement

here appears to be for the benefit of Ameren,

and the joint statement is agreed by Ameren

and the Agency, and I just posed to you,

Mr. Ross, a hypothetical, if Dominion were to

participate in the MPS as well.

That election may not occur in the

MPS until sometime in the future. What would

be the form of the reassurance that IEPA

would provide to Dominion in that scenario?

MR. ROSS: That would depend on what

we work out with Dominion. I mean, what

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199

we've done with Ameren is we've reached a

general understanding that after the controls

they install as a result of this MPS, they

will have good control system-wide, and in

general, we do not seek additional reductions

from systems that are already well

controlled. We would first look to systems

that are not -- and units that are not as

well controlled.

MR. BONEBRAKE: Would that mean,

Mr. Ross, that you would anticipate that any

company considering opting into the MPS at

some future date would first need to come to

the Agency and work out a specific agreement

with the Agency regarding protection from the

CAIR requirements?

MR. ROSS: No, they do not have to,

nothing is forcing them to.

MR. BONEBRAKE: But to be able to

obtain that assurance from the IEPA, wouldn't

that be necessary, Mr. Ross?

MR. ROSS: No, I would think that all

they need to do is reach a level of good

control, and we would not look to them for

L.A. REPORTING (312) 419-9292

200

additional reduction.

MR. BONEBRAKE: And what assurance

would they have that the Agency would not go

to them for additional control?

MR. ROSS: I don't think they would

have any assurances, except that, in general,

we do not look for additional reductions from

units' systems that are well controlled.

MR. BONEBRAKE: Whereas for Ameren --

this to Mr. Ross, Ameren has the assurance

that's provided in the sworn statement; is

that correct?

MR. ROSS: And that does go into

Question 29, and we're not giving any

guarantees here, and I don't think the

statement gives any guarantees. It's just a

general understanding that we've reached with

Ameren that after they achieve the limits

required by the MPS, they will be a well

controlled system. The emission reductions

and SO2 and NOx are in the -- we estimate in

the hundreds of thousands of tons per year,

which is, I think all would agree,

significant, and they will install numerous

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201

scrubbers, a couple SCR's, potentially,

across their fleet of coal-fired power

plants. So after they are done with this

broad multi-pollutant control strategy, they

will be a well controlled system.

HEARING OFFICER: Would you, Mr. Ross,

agree then that any utility or any group that

took advantage of the MPS provision as

written, if they complied with those

provisions, that they would be a well

controlled --

MR. ROSS: Intuitively, yes, I would

agree with that.

HEARING OFFICER: Ms. Hirner, you had

a question.

MS. HIRNER: D.K. Hirner with the

Illinois Environmental Regulatory Group. I

just have a -- to ask the Agency a point of

clarification. In the statement of reasons,

when it says first from all other sources, do

you anticipate both EGU's and non-EGU's?

HEARING OFFICER: In the joint

statement?

MS. HIRNER: The joint statement.

L.A. REPORTING (312) 419-9292

202

MR. ROSS: I think the agreement --

the understanding is limited to Ameren's

coal-fired power plants. So we would not

look first to them for additional reductions.

MS. HIRNER: But you would look to

non-EGU's prior to?

MR. ROSS: Perhaps.

HEARING OFFICER: Dr. Girard.

DR. GIRARD: Mr. Ross, I have a

question. The federal mercury rule requires

cap on mercury emissions for Illinois. Have

you done the ballpark figures to see if all

the current Illinois coal-fired plants

utilized MPS, would there be any room for new

coal-fired plants under the federal cap, the

mercury issues?

MR. ROSS: Yes, we believe so. The

cap up to the year 2018 is somewhere around

3,000 pounds. Our original estimates based

on the proposed rule prior to the MPS, was

that the mercury emission reductions would

be -- or the level of mercury emissions would

be in the neighborhood of 900 to 1,000

pounds, which gives us a buffer zone of

L.A. REPORTING (312) 419-9292

203

around 2,000 pounds of mercury emissions to

play with, so to say.

So with the MPS, we think we will

potentially see additional mercury emissions,

that's true, but nothing too significant;

that is, at most, we estimate that the

mercury emissions in Illinois could increase

to around 1,500 pounds to -- out to 2015,

where they will be required to meet

90 percent on 94 percent of their capacity.

Even at 1,500 pounds, that's less than half

of the federal mercury cap until the year

2018. So we still have a very large comfort

zone that our proposed rule will fall well

below the federal mercury emissions caps.

MS. BASSI: Does this estimate of the

number of pounds that would be admitted in

Illinois if all the companies opted into the

MPS reflect a lack of confidence on the part

of the Agency that ACI would get 90 percent

reduction?

MR. ROSS: No, it's just a real quick

preliminary worse-case calculation.

MR. ZABEL: What was the basis of the

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calculation, did you assume 90 percent?

MR. ROSS: Well, we assumed that the

six small units, obviously, would not receive

any control until 2012, and then it was

just --

MR. ZABEL: What about the other five?

If everyone opts into the MPS, didn't you say

there were 11?

MR. ROSS: So you're talking, outside

of Ameren if everyone opts into it?

MR. ZABEL: That was the chairman's

question, if everyone opts into the MPS.

MR. ROSS: Yeah, if everyone opted

into it, still, the level -- the buffer zone

is -- I would say gives us a high level of

confidence that there is absolutely no way we

could ever reach that 3,000 pounds of mercury

emissions per year. Now, I -- now, you're

going to ask me for the -- I didn't actually

do the calculations.

MR. ZABEL: I'm not going to ask you

for the numbers. I'm confused as to what the

answer was in regards to the question.

Did the Agency analyze the

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compliance with the cap based on if all the

units in the state opted for the MPS?

MR. ROSS: And answer was, yes, we did

assess that. We looked at that. The buffer

zone is, again, huge under our existing rule

without the MPS. We estimate emissions won't

get above 1,000 with it, and the actual

federal mercury cap is greater than 3,000.

So, you know, that's three times as much.

You have a buffer zone of 2,000 pounds per

year of mercury emissions. Even with the

MPS, there's no possible way you will ever

get to a level of 3,000 pounds per year of

mercury emissions.

MR. ZABEL: And what was the basis of

the appraisal and trading off that increase

in alleged number of toxins for precursors of

the ozone and fine particulate?

MR. ROSS: Well, I think what we've

done with the MPS is simply to recognize that

some companies are willing to commit to a

broad strategy of pollutant reductions, not

only mercury, but NOx and SO2, and in order

to do this, they would need to take advantage

L.A. REPORTING (312) 419-9292

206

of some co-benefits from other controls; and

of course, there are cost and timing issues

involved in this multi-pollutant strategy.

So we are simply recognizing those aspects,

as others have done, New Jersey, has a

similar multi-pollutant strategy approach.

The LADCO rule also promotes a

multi-pollutant approach where they do

something very similar to what we are doing.

They give some additional time to reach

mercury reduction levels if the company will

commit to reductions in SO2 and NOx. So it's

very similar to what we are doing.

MR. ZABEL: Actually, didn't the

USEPA, to ensure CAIR and CAMR, do exactly

that?

MR. ROSS: That's a good point. The

USEPA did the same thing.

MR. BONEBRAKE: Mr. Ross, I have a

follow-up for clarification. I think you

indicated that under the proposal that IEPA

has before the Board, and prior to the

proposed MPS, that you expected annual

mercury emissions to be about 1,000 pounds;

L.A. REPORTING (312) 419-9292

207

is that correct?

MR. ROSS: And I, again, don't have

the number, but the estimates were roughly in

that neighborhood, yes.

MR. BONEBRAKE: And it's also your

testimony that if all of the companies from

the State of Illinois were to opt into the

MPS, that the pounds of mercury emissions per

year would increase by about 500 pounds?

MR. ROSS: I would say under worse

case scenario, they would increase to around

that range, and that's based on -- only the

smaller units can avoid mercury control

until 2012, and then the larger units still

get some level of mercury control, they're

just not required to meet 90 percent until

2015. So the increase in mercury emissions

will be the difference between the smaller

units not getting any mercury control until

2012, and the larger units still putting on

mercury controls, but not necessarily being

required to meet 90 percent, so they may only

get 80 percent, so there's only a 10 percent

difference there. So that's the incremental

L.A. REPORTING (312) 419-9292

208

increase in mercury emissions that could

occur as a result of the MPS.

Now, one important thing to note,

and Ameren has stated this, I believe, in

their testimony, and our estimates concur, is

that when Ameren installs all these controls

at the end of their multi-pollutant plan,

that is in 2015, their actual mercury

emission reductions from 94 percent of their

capacity will be greater than 90 percent, we

estimate somewhere in the neighborhood of

94 percent mercury emission reduction. So

the net effect of giving them more time, is

they will potentially get greater mercury

emission reductions.

MR. BONEBRAKE: The 500 pound

differential that we've been talking about,

would that apply then from the period of 2009

until to 2015?

MR. ROSS: Probably under a worse

case, yes, I would think. It would be

somewhat less due to the installation of

mercury controls on the smaller units at the

end of 2012, but I don't think that would

L.A. REPORTING (312) 419-9292

209

play a major role since those units are

already considered small -- relatively

smaller emitters of mercury than the larger

units.

MR. BONEBRAKE: And I think you just

mentioned as well the calculations being in

the neighborhood of 94 percent reduction

from --

MR. ROSS: Well, I think that's in

Ameren's testimony, and yes, we've done some

rough calculations.

MR. BONEBRAKE: When you say Ameren's

testimony, do you mean the testimony of

Ms. Smith?

MR. ROSS: Yeah, I believe it's in

Ms. Smith's testimony.

HEARING OFFICER: Ms. Bassi?

MS. BASSI: Back to my question

before. You stated just a minute ago that if

the other companies -- if all the other

companies opted into the MPS, you thought

there would be less than a 90 percent

reduction in mercury emissions, yet, all of

them would be required to install ACI except

L.A. REPORTING (312) 419-9292

210

on their smallest units, which the 90 -- you

said around 80 percent; is that correct?

MR. ROSS: Well, what the MPS requires

is that units that will not install -- or who

burn -- some units need to install mercury

controls by July 1st, 2009. Some units need

to install mercury controls by December 31st,

2009, and other units need to install mercury

controls by December 31st, 2012.

So it's somewhat complicated, but

there's three phases in there. The large

units, 94 percent of Ameren's capacity or

potentially a different percentage of another

company's capacity who would enter the MPS,

would need to install mercury controls able

to reach a 90 percent reduction by no later

than December 31, 2009.

MS. BASSI: Is the difference then --

when you use the word able --

MR. ROSS: Right.

MS. BASSI: -- is the difference in

your confidence of reaching the 90 percent

based upon measuring the 90 percent or

demonstrating that they've met the 90

L.A. REPORTING (312) 419-9292

211

percent?

MR. ROSS: Say that again.

MS. BASSI: Well, you said they must

install equipment that is able to meet

90 percent.

MR. ROSS: Right.

MS. BASSI: How do they demonstrate

equipment able to reach 90 percent?

MR. ROSS: Equipment that is generally

believed -- that the Agency has testified is

able to achieve a 90 percent reduction.

MS. BASSI: And where did the

80 percent come from?

MR. ROSS: Well, just assuming --

pulled it out of the air, a rough number.

Some of them may not reach 90 percent. You

know, you have to do a worse case assumption,

what we believe, and some of them may not

reach 90 percent. Technically, they're not

required.

MS. BASSI: Why would they not reach

90 percent?

MR. ROSS: Some of them may reach

95 percent, but some may not.

L.A. REPORTING (312) 419-9292

212

MS. BASSI: Why not?

MR. ROSS: They may have difficulties.

I mean, they have testified that they're not

able to reach 90 percent on some of their

units. What this does is -- it's a

compromise. It recognizes that potentially

there may be difficulties. We'll give you

more time in this broad multi-pollutant

strategy. It kind of takes the argument out

of the equation, so to say, if they'll commit

to larger reductions over the long haul.

MS. BASSI: Well, do you assume then

that the technology will not necessarily meet

90 percent that you testified to earlier will

meet 90 percent?

MR. ROSS: No, we are not making that

assumption. We generally, and it is our

continuing position, that the technology we

have testified is capable of meeting

90 percent, and this will all be discussed, I

believe, when Mr. Cichanowicz is up here. As

we presented our testimony, he'll present

otherwise, and there will be, I'm sure, some

discussion on that.

L.A. REPORTING (312) 419-9292

213

HEARING OFFICER: Anything further?

It's a good place to call it a day. Let's go

off the record.

(Whereupon, there were no

further proceedings had

on this date.)

L.A. REPORTING (312) 419-9292

214

1 STATE OF ILLINOIS )

) SS

2 COUNTY OF COOK )

JULIA A. BAUER, being first duly

6 sworn on oath says that she is a court reporter

7 doing business in the City of Chicago; that she

8 reported in shorthand the proceedings given at the

9 taking of said hearing and that the foregoing is a

10 true and correct transcript of her shorthand notes

11 so taken as aforesaid and contains all the

12 proceedings given at said hearing.

JULIA A. BAUER, CSR

29 South LaSalle Street, Suite 850

Chicago, Illinois 60603

License No.: 084-004543

19 SUBSCRIBED AND SWORN TO

before me this # day

20 of #, A.D., 2004.

Notary Public

L.A. REPORTING (312) 419-9292