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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2
MARCH 10, 2009
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IN THE MATTER OF:
)
4
)
AIR QUALITY STANDARDS CLEAN-UP: )
5 AMENDMENTS TO 35 ILL. ADM. CODE ) R09-19
PART 243
)(Rulemaking-Air)
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)
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REPORT OF PROCEEDINGS had before the
10 ILLINOIS POLLUTION CONTROL BOARD held on March 10,
11 2009, at 9:00 o'clock a.m. at the Thompson Center,
12 Room 11-512, Chicago, Illinois.
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1 A P P E A R A N C E S:
2 ILLINOIS POLLUTION CONTROL BOARD:
3 MR. TIMOTHY J. FOX, Hearing Officer
4 MS. ANDREA S. MOORE, Member
5 MR. ANAND RAO, Senior Environmental Scientist
6
7
8 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
9 1021 North Grand Avenue East
10 P.O. Box 19276
11 Springfield, Illinois 62794-9276
12 MR. ROBERT J. KALEEL, Manager, Bureau of Air
13 MR. CHARLES E. MATOESIAN, Assistant Counsel
14
15 ILLINOIS ENVIRONMENTAL REGULATORY GROUP
16 215 East Adams Street
17 Springfield, Illinois 62701
18 MR. ALEC M. DAVIS
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HEARING OFFICER FOX: Good morning
2
everyone, and welcome to this Illinois
3
Pollution Control Board hearing. My name is
4
Tim Fox, and I'm the hearing officer for
5
this Rulemaking proceeding entitled, In The
6
Matter of Clean-Up, Amendments to 35
7
Illinois Administrative Code, Part 243.
8
Also present from the Board
9
today are at my immediate right, Board
10
Member Andrea S. Moore, the lead Board
11
Member for this rulemaking. And at my left
12
Anand Rao of the technical staff. The Board
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docket number is R09-19.
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The Illinois Environmental
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Protection Agency filed this proposal on
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December 1, 2008, and in an order dated
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December 18, 2008, the Board accepted the
18
proposal for hearing. On January 20, 2009,
19
IEPA filed a motion to amend its rulemaking
20
proposal. And in an order dated
21
February 19, 2009, the Board granted that
22
motion.
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Today we are holding the first
24
hearing on this amended rulemaking proposal.
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Originally, the first hearing had been
2
scheduled to take place on February 3, 2009,
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with the second hearing scheduled to take
4
place here on March 10th. On January 20,
5
however, the Agency, in addition to its
6
motion to amend the rulemaking proposal,
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filed a motion to reschedule that first
8
hearing. And on January 30, 2009, a hearing
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officer order granted that motion and
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rescheduled the first hearing from
11
February 3rd to today, March 10th. That
12
order did not address the schedule for a
13
second hearing, but as indicated, it's
14
expected that the participants here today
15
will address that issue before adjourning
16
this hearing.
17
For the first hearing, the Board
18
on March 3, 2009, received pre-filed
19
testimony from the Illinois Environmental
20
Protection Agency by Mr. Robert Kaleel, who,
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of course, is present here today. Also on
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March 3, the Board received a motion to file
23
Mr. Kaleel's testimony instanter. Does
24
Mr. Davis or anyone else wish to be heard on
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that motion? Although Mr. Davis indicates
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he does not, while the Board's rules do
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allow for 14 days to respond, undue delay
4
would result from allowing that period to
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run. Mr. Kaleel is present, and I suspect
6
he will be sworn in to take any questions
7
very soon, and that motion and the testimony
8
were served on the entities on the service
9
list as the testimony is relatively brief in
10
length, I will grant that motion to file the
11
testimony instanter and accept it into the
12
record at this proceeding.
13
No other participant has
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pre-filed testimony for this hearing. So
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naturally, we will begin with the testimony
16
by Mr. Kaleel which is now in the record,
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and then proceed to questions that any
18
participants may have on the basis of that
19
testimony. After those questions, we can
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turn to any witness who did not pre-file
21
testimony but would like to testify. While
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no one else appears in the room, other than
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Mr. Davis and the representatives of the
24
Agency, there is a sheet at the door on
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which any person -- at the end of this head
2
table near the door -- at which any person
3
who would like to do so, can indicate their
4
interest in testifying today.
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This proceeding is, of course,
6
governed by the Board's procedural rules,
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and all information that is relevant and
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that is not repetitious or privileged will
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be admitted into record. Please note any
10
question posed today by the Board or its
11
staff are intended solely to develop a
12
clear and complete record, and reflect no
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prejudgment or predetermining about the
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substance of the Agency's proposal.
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For the court reporter, please
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speak loudly. We do have a fan that may
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make it a little more difficult to be heard.
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That, I'm sure, will be appreciated so we
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can have the clearest possible transcript.
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Any questions at all about procedures or
21
background? Great. Mr. Matoesian, we're
22
ready to turn to the Agency. Did you or
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Mr. Kaleel wish to make any quick
24
introduction or summary this morning?
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MR. MATOESIAN: Just briefly. I'm
2
Charles Matoesian, appearing for the
3
Illinois Environmental Protection Agency on
4
this matter of clean-up of part 243. This
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clean-up simply incorporates new federal
6
standards into our rule which are currently
7
applicable throughout the nation, and
8
briefly we add a new PM2.5 standard. We add
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a new 8-hour ozone standard. We revoke
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the existing 1-hour ozone standard, and we
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are modifying the PM10 ozone standard, as
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well as modifying the Lead standard.
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We also have a few clean-up
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matters. We proceeded along, since the
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part was open, and with that I can turn
16
things over to Mr. Robert Kaleel, manager of
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the Air Quality Section in the Bureau Of
18
Air, who will provide testimony here today.
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HEARING OFFICER FOX: Mr. Matoesian
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and Mr. Kaleel, I'm sure, you know,
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pre-filed testimony is admitted in the
22
record as if read at 102.4F of the
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procedural rules. If it's a good time, we
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can swear you in too so you can proceed to
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give any kind of summary or any other
2
introduction he might like to provide.
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MR. KALEEL: I have no opening
4
statement.
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HEARING OFFICER FOX: Very good.
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I'm presuming you would be willing to go to
7
questions then?
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Mr. Davis, you are the single
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nonagency entity, other than the Board,
10
present, so certainly it's an opportune
11
time to ask any questions that you might
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wish to.
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MR. DAVIS: Thank you. My name is
14
Alex Davis. I'm here on behalf of the
15
Illinois Environmental Regulatory Group. I
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have a few questions that I'd like to ask
17
you today, Mr. Kaleel.
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MR. KALEEL: Okay.
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MR. DAVIS: Mr. Kaleel, in the
20
Agency's filings of your testimony, the
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intent of the Agency is to have the state's
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Air Quality Standards be the same in
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substance to the National Ambient Air
24
Quality Standards for PM 2.5; is that a
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1
correct understanding?
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MR. KALEEL: That's correct.
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MR. DAVIS: The technical support
4
document provides a lot of summary of the
5
characteristics and health impacts of ozone
6
particulate matter and lead, and generally
7
presents a synopsis of the bases for the
8
U.S. EPA setting the National Air Quality
9
Standards for these pollutants. Has the
10
Agency performed an analysis or
11
investigation of the documents that the
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U.S. EPA used to establish the levels and
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formed the standards in order to determine
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if a different level should be set in
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Illinois, or is it the policy of the Agency
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to rely upon the expertise of the U.S. EPA
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in setting the air quality standards in
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Illinois?
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MR. KALEEL: We have not done an
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independent review of the health effect
21
studies. We do rely upon the U.S. EPA,
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their experts, to develop those proposals,
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and what we're here to do today is to adopt
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the federal standards.
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HEARING OFFICER FOX: Mr. Davis, I
2
neglected to mention that in addition to his
3
pre-filed testimony, Mr. Kaleel did submit
4
into the record a revised technical support
5
document in this proceeding, and I'm
6
assuming that it's that revised document
7
that you are referring to?
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MR. DAVIS: That is what I was
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referring to.
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HEARING OFFICER FOX: Thank you for
11
letting me interrupt.
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MR. DAVIS: Mr. Kaleel, in the case
13
of the ozone standards that you are
14
proposing, are you aware that the proposal
15
is subject to an appeal that could result in
16
the standard being changed?
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MR. KALEEL: We are aware that the
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ozone standard is subject to -- and PM2.5
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are subject to legal action.
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MR. DAVIS: If either of these
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proposals were changed, would the Agency
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40CRF rule begin to incorporate those
23
changes?
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MR. KALEEL: Yes, it would.
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MR. DAVIS: The Agency's proposed
2
revisions -- in the proposed revisions,
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no mention is made to designate the proposed
4
standard as being primary or secondary
5
standards. The proposed standards are
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identical for primary and secondary
7
standards. If that were to change as a
8
result of ongoing appeals, for example,
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would the Agency make such a designation in
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this part 243 or is it the intent of the
11
Agency to only establish a primary or health
12
base standard?
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MR. KALEEL: I think it would be our
14
intent to propose to make secondary
15
standards consistent with U.S. EPA's Air
16
Quality Standards. As you noted, in most
17
cases, if not all cases, in this proposal,
18
the primary standard and the secondary
19
standard are identical. There's no need to
20
do that at this point.
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MR. DAVIS: Okay. The Agency's
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proposed revisions do not duplicate the
23
language of the U.S. EPA National Ambient
24
Air Quality Standard, but seem to capture
12
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the substance. Why doesn't the Agency use
2
the same language as the federal standard so
3
as to avoid any possible misinterpretation
4
or confusion?
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MR. KALEEL: Excuse me for just a
6
second. I think our intent was to capture
7
the essence of the Air Quality Standard.
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I'm not aware of specific instances where
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the language is different. If you have some
10
information in that regard --
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MR. DAVIS: I might be able to
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draw your attention to a few instances that
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I'm aware of. I think I'll get to that in a
14
minute, if that's all right.
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The Agency is proposing to
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delete the 1-hour ozone standard and to
17
adopt the 200 federal ozone standard, but
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Part 243 has never included the 1997 ozone
19
standard, which is currently the subject
20
of rulemaking before the Board and state
21
implementation plans that are being
22
developed by the Agency. Why didn't the
23
Agency propose to include the 1997 ozone
24
standard in the Part 243 rules?
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MR. KALEEL: Well, I guess our
2
preference would have been to adopt the 1997
3
standard shortly after 1997. We didn't make
4
such a proposal. As you noted, current
5
ozone standards are under legal challenge.
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The 1997 standards were under legal
7
challenge for many years, and at the point
8
that those standards were successfully
9
resolved legally, we are aware that U.S. EPA
10
was already under a deadline to revise those
11
standards yet again. So it's a little bit
12
of a game of catch-up. The 1-hour standards
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are federal standards. We believe they
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apply to Illinois, even if they are not
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included in Part 243, and we have an
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obligation under federal law to address
17
those standards, even if they are not
18
contained in Part 243. So I think it would
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be a mistake to go back and adopt the 1-hour
20
standard when they no longer exist at the
21
federal level.
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MR. DAVIS: Thank you. I now have
23
some questions that are focused directly at
24
the contents of the proposal. It might be
14
1
useful to refer to that. In the proposed
2
section 243.120, that would be the PM10,
3
the proposal says in part, "That the ambient
4
air quality standard for PM10 is a maximum
5
24-hour concentration of 150 micrograms per
6
cubic meter." Does this language mean that
7
the standard is violated if the Agency
8
performs for a single 24-hour period at a
9
value greater than 150 micrograms per cubic
10
meter?
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MR. KALEEL: That is not in keeping
12
with the form of the standard. I believe
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the form of the standard is 150 micrograms
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per cubic meter not to be exceeded more than
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once per year.
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MR. DAVIS: I see. And that I think
17
is similar to the federal Ambient Air
18
Quality Standard language.
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I guess I can -- can I enter
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that as an exhibit if I were to distribute
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the Code of Federal Regulations for
22
reference?
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HEARING OFFICER FOX: Certainly. If
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you've got copies of that, you can
15
1
distribute, we can take that up.
2
MR. DAVIS: This would be Title 40,
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Sections 50.4 through 50.15, which contain
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the National Ambient Air Quality Standards
5
for the various pollutants.
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HEARING OFFICER FOX: Mr. Davis, I'll
7
take your circulation of that as a motion to
8
admit this as Hearing Exhibit 1. Is that a
9
fair assessment?
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MR. DAVIS: That would be, exactly.
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HEARING OFFICER FOX: Does the Agency
12
wish to be heard on the motion to admit this
13
as Exhibit 1?
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MR. MATOESIAN: No, thank you.
15
HEARING OFFICER FOX: Very good. It
16
will be marked as Exhibit 1, the citation to
17
the Code of Federal Regulations as Mr. Davis
18
had indicated.
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MR. DAVIS: The PM10 standard is
20
contained in Section 50.6, and as you
21
indicated, it says there in subsection A,
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the number of days per calendar year is a
23
single exceedance. And I was just curious
24
to know why or if there was a reason that
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the Agency doesn't explicitly include this
2
or similar language in the standard it's
3
proposing?
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MR. KALEEL: I don't think we're
5
opposed to do doing that. I would note that
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the language that you just distributed also
7
makes reference to Appendix K, as does our
8
proposal, and I think the effect of Appendix
9
K would do exact the same thing. It
10
identifies that the first exceedance of 150
11
micrograms per cubic meter does not
12
constitute a violation and takes a second
13
exceedance. I think our proposal does the
14
same thing, but we're not opposed to some
15
clarifying language if it's determined
16
that's necessary.
17
MR. DAVIS: Okay. Thank you.
18
Similarly, with regard to the
19
PM5 standard, that would be the 243.20A,
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and for comparison's sake, is 40CFR,40E.7,
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referring these two, comparing these two
22
sections, the Agency's proposed
23
standard refers to 50 micrograms per cubic
24
meter, and the federal standard is
17
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15.0 micrograms per cubic meter. That's
2
just one indication that was pointed out to
3
me. A second being that the standard is
4
described as being met in the federal
5
standard when the annual arithmetical mean
6
concentration is determined in accordance
7
with the Appendix N, this part is less than
8
15.0 micrograms per cubic meter. This
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information isn't included or at least it's
10
not immediately obvious whether or not the
11
reference to Appendix N is applicable to
12
both the 24-hour and the annual standards in
13
the proposal or to me at least it's not
14
immediately evident that this is the case.
15
Is that the intent?
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MR. KALEEL: The intent is for
17
Appendix N to apply to both standards, and
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that is consistent with the language in the
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federal standard that you have supplied.
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MR. DAVIS: Thank you. Turning our
21
attention to the 8-hour ozone standard
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contained --
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MEMBER RAO: Mr. Davis, before you
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go to that -- Mr. Kaleel, you didn't
18
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respond to the issue of 15.0 --
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MR. DAVIS: Yes, you are right.
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Thank you.
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MEMBER RAO: -- micrograms per cubic
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meter.
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MR. KALEEL: The 15.0, that could
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conceivably have a substantive effect, and I
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would agree that the value should be 15.0.
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In prior air quality standards there's
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frequently some discussion or some process
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to deal with rounding. So it's conceivable
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that 15 micrograms could be interpreted than
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15.0. So I think we probably would intend
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to amend that to make it look at 15.0.
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MEMBER RAO: Just one more. This is
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more of a procedural issue. For PM2.5 you
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are given a section number of 243.120A, and
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as far as I can tell we have not seen
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sections broken up in terms of A, B, and C.
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Would it be acceptable to the Agency if we
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just make it 243.121?
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MR. KALEEL: I think we'd want to
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consider that. We noticed that 243.121 is
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listed as repealed with an effective date of
19
1
1/22. I suspect our attorneys were trying
2
not to use the same section number, but I
3
think I'd want to consult with your
4
attorneys.
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MEMBER RAO: Because we may have
6
some J-CAR issues with that numbering
7
system.
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MR. KALEEL: I appreciate you
9
pointing that out, and I think we will take
10
a look at that matter.
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MEMBER RAO: Thank you.
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MR. DAVIS: Turning our attention to
13
the 8-hour ozone standard contained in the
14
243.125, and similarly in Section 50.10 of
15
the Code of Federal Regulations, I was
16
pointing out the difference that the
17
Agency's proposal states that the standard
18
is based on the fourth highest 8-hour daily
19
value recorded in a calendar year. But
20
unlike the federal standard, it doesn't
21
explain that compliance is based on the
22
three-year average of the annual fourth
23
highest daily maximum 8-hour averages. And
24
I have to apologize because I didn't see
20
1
that.
2
MR. KALEEL: Again, I guess we'd
3
want to take a look specifically at the
4
language that you are pointing to. It is
5
our intent to match up the state air quality
6
standard with the federal air standard? If
7
there's some sloppiness on that, I do
8
apologize, but we do intend for the state
9
standards to match the federal standards.
10
MR. DAVIS: Okay. If I could take a
11
minute here.
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HEARING OFFICER FOX: That's just
13
fine, Mr. Davis. Please go ahead.
14
MR. DAVIS: Okay, thank you.
15
HEARING OFFICER FOX: Please go ahead,
16
if you have more questions, Mr. Davis.
17
MR. DAVIS: A few more.
18
With regard to the lead
19
standard, this would be in the amended
20
proposal, Section 243.126. Initially I'd
21
like to indicate that under subsection A you
22
referred to air quality standard for lead,
23
and I suspected this was the case. But I
24
wanted to confirm that there was not an
21
1
intent to have more than one standard. My
2
question that immediately came to mind was
3
that there was going to be a primary and
4
secondary or whether it was just the single
5
standard in this proposal; is that correct?
6
MR. KALEEL: I believe there is just
7
a single standard.
8
MR. DAVIS: Okay. I'd also like to
9
indicate that as you stated, I believe it
10
was in regard to the PM10 standard, referred
11
to the appendix that referenced how that
12
standard was to be met, yet in this lead
13
standard, that is not included, this is an
14
Appendix R, which is the method for
15
interpreting the standard. Is there a
16
reason the Agency chose not to explicitly
17
refer to this Appendix R? And that would
18
not be in the CFR's I distributed because
19
that lead standard was published after the
20
CFR's. So we would have to turn to your
21
filing of the federal register for that
22
citation. Federal register, volume 73, page
23
60752. This was the Agency's filing
24
accompanied the amendment.
22
1
HEARING OFFICER FOX: That was 67052?
2
MR. DAVIS: Correct. And the
3
national primary and secondary ambient
4
air quality standard for lead are contained
5
in Section 50.16. And in subsection B of
6
that section, it's on the left-hand column
7
about three inches down, it's subsection B,
8
and it describes the use of Appendix R to
9
determine whether or not the standard is
10
met. And I guess my question is, is there a
11
reason that that appendix R, the reference
12
to appendix R was not included in the
13
proposed standard?
14
MR. KALEEL: I'm not aware of a
15
reason why that was excluded. I think I
16
appreciate you pointing that out. We'll go
17
back and take a look at that and see if an
18
amendment is appropriate.
19
MR. DAVIS: Okay. Thank you. I
20
have just a few more -- a few questions, and
21
these are along the same vain. However,
22
these are in reference to some of the
23
standards that aren't being explicitly
24
overridden. For example, the sulfur dioxide
23
1
standard, which is contained in 243.122,
2
contains substantial differences between the
3
current state standard and the U.S. EPA
4
standard. Would the Agency be considering
5
reviewing standard other than those it's
6
explicitly updated to make them consistent
7
with the federal standards?
8
MR. KALEEL: We are not proposing
9
any changes for sulfur dioxide. We are
10
trying to get caught up, if you will, with
11
changes for the other standards that we have
12
noted. The SO2 standard that you have
13
referred to has existed at the state level
14
for many years. It's not our intent to
15
revise that at this time.
16
MR. DAVIS: The Carbon Monoxide Air
17
Quality Standard, perhaps contained in
18
243.123, is expressed in parts per million
19
where in comparison to 50.8 of the CFR is a
20
standard in -- excuse me one second -- 40CFR
21
50.8 is the standard for carbon monoxide is
22
in parts per million, and the Agency
23
standard is in milligrams per cubic meter.
24
The federal standard also provides data
24
1
summary conventions and rounding conventions
2
that are used when comparing and monitoring
3
data for the level of the standard. Would
4
the Agency consider making notary changes
5
to better adapt its standard to the federal
6
NAAQS, National Air Quality Standards, in
7
order to avoid possible confusion?
8
MR. KALEEL: Again, it's not our
9
intent to revise the carbon monoxide
10
standard. I noted that in the Board's
11
version of 243.123 for carbon monoxide both
12
milligrams per cubic meter and parts per
13
million are listed, and at least my quick
14
read here on the CFR language that you
15
distributed, U.S. EPA does it the same way.
16
Different ones are parenthetical, but both
17
units are listed, both parts per million and
18
milligrams per cubic meter, and in both
19
parts of the rule. I guess I don't
20
understand why there would be any need to
21
revise anything since both are listed.
22
Having said that, we are not proposing any
23
changes for carbon monoxide. It's not our
24
intent to do so.
25
1
MR. DAVIS: I suspect your answer
2
might be similar for nitrogen dioxide?
3
MR. KALEEL: You suspect correctly.
4
We are not making changes to nitrogen
5
dioxide. These quality levels have existed
6
for a very long time, and at such time
7
U.S. EPA revises those standards, we will
8
revisit those, but we don't intend to do
9
those at this time.
10
MEMBER RAO: May I ask a follow-up
11
question, Mr. Kaleel, just for the record?
12
Could you clarify whether the Agency has
13
looked at these standards that Mr. Davis
14
questioned you about to see if there were
15
any substantive changes at the federal level
16
that we need to make at the state level?
17
MR. KALEEL: To be honest, we've not
18
spent any time on the older standards. I
19
don't believe, with the exception of sulfur
20
dioxide, I don't believe just from my own
21
knowledge of these standards that are there
22
substantive differences. The sulfur
23
dioxide, I believe there's a difference in
24
determining compliance between the state
26
1
level and the federal level, and I think we
2
believe that the standard should remain the
3
way we've had it listed for at least
4
20 years. Maybe longer than that.
5
MEMBER RAO: And you had no problems
6
with the U.S. EPA in terms of how the state
7
is implementing those sulfur dioxides?
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MR. KALEEL: I believe our sulfur
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dioxide, the way it is, is slightly more
10
stringent than the U.S. EPA standard. I
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also point out that there are no places in
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Illinois that's an issue. All of Illinois
13
is in attainment with both the state form of
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the standard and the federal form of the
15
standard. So we are not really interested
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in proposing a change to that at this time.
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MR. DAVIS: Thank you. That's it
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for me.
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HEARING OFFICER FOX: No further
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questions, Mr. Davis?
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MR. DAVIS: No. Thank you.
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HEARING OFFICER FOX: Mr. Davis has
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indicated that he is has completed his
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questions, and both Board Member Moore and
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1
Mr. Rao have indicated they have no
2
questions based on that testimony. So it is
3
appropriate, Mr. Kaleel, to thank you for
4
your preparation of that testimony and time
5
in testifying today.
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If everyone is prepared to do
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so, why don't we go off the record briefly
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and speak about procedural issues for just a
9
moment or two.
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(Whereupon, a discussion was had
11
off the record.)
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HEARING OFFICER FOX: In going off
13
the record and discussing procedural
14
matters, participants have agreed to
15
schedule a second hearing in this rulemaking
16
to take place at 2:00 p.m. on Tuesday, April
17
28, 2009, in Springfield at the Pollution
18
Control Board offices. With the deadline of
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Tuesday, April 14, 2009, for pre-filing
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testimony. And it's the Board's intent that
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the mailbox rule would not apply, and the
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pre-filed testimony would be in the Board's
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offices on the 14th.
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In addition, anyone with the
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1
clerk of Board, those may be made
2
electronically through the Board's clerk's
3
office on-line or call and any questions
4
about that procedure can be directed to John
5
Therriault, T-H-E-R-R-I-A-U-L-T, who is the
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Board's assistant clerk. Those filings must
7
also be served on the hearing officer and on
8
those persons on the service list as well.
9
Copies of the transcript of today's hearing
10
should be available in about eight business
11
days, by Friday March 20th, and very soon
12
after that, the transcript would be posted
13
to the Board's website www.ipcb.state.il.us.
14
under this docket number RO9-19.
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If any anybody has questions
16
regarding procedural aspects of this
17
rulemaking, they may reach me through the
18
information on the Board's site just
19
provided.
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Any other matters that need to
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be addressed at this time? Again, thanks to
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all of you for your time, effort and travel
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from Springfield. We're adjourned, and
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we look forward to seeing you in Springfield
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on the 28th of April.
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1 STATE OF ILLINOIS )
2
) SS.
3 COUNTY OF COOK )
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5
6
I, DENISE A. ANDRAS, being a Certified
7 Shorthand Reporter doing business in the City of
8 Chicago, Illinois, County of Cook, certify that I
9 reported in shorthand the proceedings had at the
10 foregoing hearing of the above-entitled cause.
11 And I certify that the foregoing is a true and
12 correct transcript of all my shorthand notes so
13 taken as aforesaid and contains all the
14 proceedings had at the said hearing of the
15 above-entitled cause.
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___________________________
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DENISE A. ANDRAS, CSR
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CSR NO. 084-0003437
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