041211EPA.txt

 1

 2 ---oOo---

 3 AVENAL ENERGY PROJECT

 4 PUBLIC MEETING

 5 TUESDAY, APRIL 12, 2011

 6 7:00 P.M. TO 10:00 P.M.

 7 ---oOo---

 8

 9

 10

 11

 12 THE AVENAL THEATER

 13 233 E. KING STREET

 14 AVENAL, CALIFORNIA 93204

 15

 16

 17

 18

 19

 20

 21

 22

 23

 REPORTED BY: CHERI FIKE

 24 CSR NO. 6200

 25

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

 2

 3 HEARING OFFICER:

 4 STEVEN L. JAWGIEL, Assistant Regional Counsel

 5

 6 EPA PERMITS OFFICE:

 7 KERRY DRAKE, Associate Director

 8

 9 AUDIENCE SPEAKERS:

 10 CHERYL TAYLOR

 11 INGRID BROSTROM

 12 LAURA BAKER

 13 LETITIA LOPEZ

 14 RAY LEON

 15 MARICELA MARE-ALATORRE

 16 JESSIE AYALA

 17 CINDY QUIRALTE

 18 ANA MADRUGA

 19 RAMON NARES

 20 RON CONTRERAS

 21 LUPE CHAVEZ

 22 RAMON NARES

 23

 24

 25

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 1 TUESDAY, APRIL 12, 2011, 7:00 P.M.

 2 ---oOo---

 3 THE HEARING OFFICER: Hello, ladies and

 4 gentlemen. It's 7:00 o'clock and I'd like to actually

 5 get the hearing started. My name is Steven Jawgiel.

 6 I'm the Regional Hearing Officer from the Environmental

 7 Protection Agency Region 9 office.

 8 We are here today to discuss and take -- not a

 9 lot to discuss, but to take comments on a proposed

 10 permit that the agency is considering. The hearing

 11 will go until 10:00 o'clock.

 12 I will introduce the people who are here from

 13 the EPA so in case anyone here needs additional

 14 information, they'll know where to go and who to talk

 15 to.

 16 The first person I'd like to introduce is

 17 Kerry Drake. He's the Assistant Director of Region 9

 18 Air Division of EPA.

 19 Gerardo Rios is also here. Gerardo is the Air

 20 Permits Office Chief.

 21 Shirley Rivera who is an AEP Project Manager

 22 For Region 9 Air Division.

 23 Amy Parsley who helped put this whole hearing

 24 today, I'd like to thank Amy for all of her hard work.

 25 She's a Public Hearing Coordinator for Region 9, EPA

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 1 Region 9.

 2 Julie Walters is here. She's in the corner.

 3 She's an attorney with the Office of Regional Counsel.

 4 Sheryl Bilbrey is here. I believe Sheryl is

 5 out --

 6 MS. BILBREY: I'm right here.

 7 THE HEARING OFFICER: Oh, there she is.

 8 Sheryl is in the back of the room. Sheryl is with our

 9 office CED and Environmental Justice.

 10 Carlos Evans is here to my right. Carlos is

 11 going to be our timekeeper. And Carlos is visiting us

 12 from our EPA headquarters office in Washington, D.C.

 13 I'd also like to introduce Nahal Mogharabi.

 14 There she is.

 15 Nahal, I'm sorry for mispronouncing your name.

 16 MS. MOGHARABI: That's okay.

 17 THE HEARING OFFICER: Nahal is with our Office

 18 of Public Affairs. So if there are any journalists

 19 here that need to speak to our Public Affairs Officer,

 20 Nahal is the person to talk to.

 21 Roberto Gutierrez is here from our Air Permits

 22 Office.

 23 And I'd also like to introduce Cheri. Cheri

 24 is our Court Reporter. And Carlos, who is our

 25 Interpreter. If anyone for any reason needs English to

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 1 Spanish interpretation, we do have headsets and

 2 realtime interpretation going on.

 3 I'd like to give a little bit of background of

 4 why we're here. This will just take a couple of

 5 minutes. This is a public hearing on a proposed action

 6 by EPA relating to the Clean Air Act Prevention of

 7 Significant Deterioration, or PSD, permit application

 8 for the Avenal Energy Project.

 9 The project is a 600-megawatt, combined-cycle,

 10 natural gas-fueled electric generating facility. This

 11 power plant is proposed to be located in Avenal,

 12 California, about two miles east of Interstate 5.

 13 In 2009, EPA proposed a PSD permit for the

 14 project and took public comment on its proposed permit

 15 during a four-month-long public comment period. I was

 16 actually involved with that, so if I look familiar, I

 17 was probably the Hearing Officer that you saw for the

 18 public comment period.

 19 The public participation process included

 20 public information -- a public information meeting and

 21 two public hearings that were held in the City of

 22 Avenal. The public comment period for EPA's proposed

 23 permitting action for the project closed in October

 24 2009.

 25 EPA recently initiated another public comment

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 1 period and scheduled tonight's hearing in order to

 2 provide an opportunity for public comment on three

 3 specific topics relating to EPA's proposed permitting

 4 action for the Avenal Energy Project, which I will

 5 describe in a moment.

 6 At this time EPA is seeking comment on these

 7 three topics. It is important to note that EPA is not

 8 reopening the comment period generally or accepting

 9 additional comment at this time on any other issues

 10 other than the three topics that I will describe. So

 11 it's important to note that we're not going to reopen

 12 the issues for public -- for public -- thank you --

 13 we're not going to reopen the issues for public comment

 14 that were taken back in October 2009.

 15 When EPA makes its final decision on the PSD

 16 permit application for the project, EPA will issue its

 17 written responses to all significant comments that were

 18 submitted in 2009, as well as those that are being

 19 submitted during this current comment period.

 20 The first topic that EPA is seeking to comment

 21 on involves -- is seeking comment on involves EPA's

 22 determination that it is appropriate to grandfather the

 23 PSD permit application for the project from the

 24 requirement to demonstrate that the proposed facility

 25 will not cause or contribute to a violation of the

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 1 recent National Ambient Air Quality Standard hourly for

 2 nitrogen dioxide or NO2. EPA is proposing to approve

 3 the PSD permit application for the project without

 4 requiring a demonstration that the source will not

 5 cause or contribute to a violation of the hourly NO2

 6 standard. EPA is seeking public comment on this

 7 proposed action.

 8 The second issue that we are -- that EPA is

 9 seeking comment on is that EPA believes the factors

 10 that justify this approach for the hourly NO2 standard

 11 also provide a basis not to subject this permit

 12 application to additional permitting requirements that

 13 have taken effect following the promulgation of the

 14 hourly NO2 standard. Therefore, EPA also will not

 15 require the source to meet emissions limitations for

 16 greenhouse gases or to demonstrate that it will not

 17 cause or contribute to a violation of the National

 18 Ambient Air Quality Standard for hourly concentrations

 19 of sulfur dioxide. EPA is seeking public comment on

 20 this proposed action.

 21 And the third and final topic that EPA is

 22 seeking comment on is that EPA is seeking comment on

 23 EPA's Environmental Justice Analysis for the project.

 24 If you would like more details describing the

 25 basis of the EPA's proposed grandfathering action and

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 1 EPA's Environmental Justice Analysis for the project,

 2 they're included in EPA's March 2011 Supplemental

 3 Statement of Basis for the project, which has also been

 4 translated into Spanish. This document has been posted

 5 on EPA's website, and extra copies of the Supplemental

 6 Statement of Basis in English and Spanish are also

 7 available as handouts here, I believe. And I believe

 8 they're located on the back table if anyone needs this

 9 additional information.

 10 I should also note that you will see that out

 11 in the lobby and throughout the room there are these

 12 poster boards with additional information about the

 13 project, so feel free to ask any of the EPA people who

 14 I introduced at the beginning of this hearing about

 15 that information, or if they can assist you with

 16 locating, you know, additional information that you

 17 need to form your comments tonight.

 18 For those who want to look up those documents

 19 on EPA's website, they can be found at -- well, I'm

 20 going to read the website here, but if you need this,

 21 feel free to come up to me during a break and I'll be

 22 happy to give you a copy of the website, but it's

 23 http://www.epa.gov/region9/air/permit/r9-permits-issued

 24 .html.

 25 Next I would like to discuss the method and

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 1 timing for submitting comments. Of course, we're here

 2 tonight to take oral comments from individuals and I

 3 will be explaining how that process will move forward.

 4 The current comment period opened early March

 5 and it closes tonight, so that's very important for

 6 everyone to know, that in addition to the oral

 7 comments, if anyone chooses to submit written comments

 8 to the EPA, they must be submitted to the agency by

 9 midnight tonight.

 10 After seeing -- oh, this is a very important

 11 point too, because when I've held public hearings in

 12 the past, I think a lot of people have been a little

 13 confused about my involvement in the permitting

 14 process. And I always like to tell people that and

 15 assure them that I am not at all involved in the

 16 permitting process. Even though I'm an EPA employee, I

 17 serve as a regional judicial officer for the region and

 18 I don't have any involvement in the decision-making

 19 process of this permit. I'm here merely as a

 20 facilitator and to make sure that everyone that wants

 21 to get a comment on record orally tonight has a fair

 22 and equal opportunity to do so. And that's my sole

 23 limited purpose for being here is to facilitate this

 24 public hearing and not to participate in the

 25 decision-making process at this point.

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 1 Before I start accepting comments, let me go

 2 ahead and give a little bit more detail about how

 3 this -- the actual hearing is going to work.

 4 EPA provided the public with information

 5 describing the issues about which we are about to seek

 6 comment on in a March 2011 public notice that was

 7 published in English and in Spanish. Public notice was

 8 distributed by mail, email, and newspaper publication

 9 and posted on EPA Region 9's website.

 10 You will see, as I mentioned earlier, to my

 11 left this hearing is going to be recorded by a

 12 Certified Court Reporter. She is transcribing pretty

 13 much everything that is said in the room. With that I

 14 do ask people if you can -- everyone can speak, you

 15 know, one at a time. It's very, very difficult for a

 16 Court Reporter to record two, three, or four voices

 17 speaking at the same time. So what I do ask people is

 18 when someone's up at the microphone making a comment,

 19 that we give them the time to finish their comment and

 20 we'll have equal opportunity to make any comments that

 21 you would like. I just ask that people don't speak

 22 over each other. It's very difficult, again, for us to

 23 get a clear record of those situations, so I very much

 24 appreciate your cooperation in that respect.

 25 Although there are -- there's no one here with

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 1 any banners or posters, if there were people with

 2 banners or posters, or if any of you have any, feel

 3 free to show them. However, I do ask people with

 4 banners and posters to stand in the back of the room so

 5 that they don't interfere with other people in the

 6 audience's view of the hearing.

 7 The next thing I'd like to address is the

 8 registration and speaker request forms. You do not

 9 need to register to attend this hearing, however, if

 10 you would like to receive personal notice of EPA's

 11 written response to the comments collected on this

 12 permit, there are forms in the lobby that you can fill

 13 out, and you can write your name and address on the

 14 registration form. And what will happen is when EPA

 15 receives all its comments and is ready to issue the

 16 final decision on the permit, you'll be notified that

 17 that is happening, that the response to the comments is

 18 coming out and the final decision is being made, and

 19 EPA will notify you where to locate that information.

 20 So if you would like to receive that type of

 21 personal notice, feel free to fill out a registration

 22 form in the back. But, again, I want to emphasize you

 23 do not need to do that in order to issue a public

 24 comment here at this meeting tonight.

 25 The next thing I'd like to address are these

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 1 speaker cards. Again, my role here is to make sure

 2 that everyone has an equal and fair opportunity to

 3 voice their opinions. We are going to give each

 4 speaker five minutes to issue their comments. If you

 5 would like to make a comment at the microphone, I ask

 6 that you fill out one of these white cards, because

 7 what I'd like to do is take the speakers in order in

 8 which they submitted their cards. Again, it's just the

 9 fairness issue. If people got here early and submitted

 10 their cards, I'd like to give them the first

 11 opportunity to speak, but I can guarantee you we

 12 will -- you know, we will stay here however late we

 13 need to to get through all the cards.

 14 The hearing is scheduled to last until 10:00

 15 o'clock. It -- you know, if all of you wanted to speak

 16 five times, we still have many hours left over. So

 17 unless there's a huge influx of people that come, which

 18 may happen, what we've done in the past is if people

 19 after their five minutes would like to speak again,

 20 during the break I just ask them to notify me that they

 21 would like another five-minute session to issue further

 22 comment, and with that we'll take a break and when we

 23 come back, when I've gone through the original list of

 24 speakers, we'll allow people an opportunity to come

 25 back up and speak for another five minutes.

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 1 I would also like to emphasize that so

 2 tonight, you know, until midnight, your oral comments

 3 are not the only way that we have to submit a comment.

 4 I mean, by midnight tonight, if you so choose, you can

 5 submit an oral comment and you can go home and you can

 6 email EPA a written comment, too. So there are

 7 multiple means of submitting your comments up until

 8 midnight tonight.

 9 The other thing I'd like to emphasize is, you

 10 know, occasionally I run across a situation where

 11 someone doesn't feel comfortable where they, you know,

 12 they don't want to identify themselves on a speaker

 13 card, and again, they don't have to. What I typically

 14 ask people when they come up to the microphone is if

 15 they could just state their name for the record, and

 16 that way I know that I'm also speaking with the person

 17 who's on the card that is speaking.

 18 However, if anyone here wants to make a public

 19 comment on the record, but does not want to give their

 20 name, I will assure you that it's not a mandate that

 21 you do so, that is, it's not required. However, I

 22 would ask if you can at least submit a card with some

 23 type of designation and I can put -- when I get to that

 24 card, I'll call it out and that person can come to the

 25 microphone and give their oral comment without having

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 1 to identify their name on the record.

 2 Let's see here. What will happen is you'll

 3 see that there are two microphones here kind of flanked

 4 off to the -- you know, in each of the aisles

 5 basically. When your name is called, please step up to

 6 the microphone, state your name for the record, you'll

 7 have five minutes to issue your oral comment.

 8 What will happen here is Carlos -- so that you

 9 kind of have a sense of where you are, four minutes

 10 into your comment Carlos is going to give you a warning

 11 that there's one minute left. And he'll raise the sign

 12 with the "1" on it, and what will happen is, you know,

 13 we don't mean to be distracting, people have mentioned

 14 to me in the past that sometimes they felt that raising

 15 the warning sign was a little distracting as they were

 16 giving their comment. I apologize if you get

 17 distracted by the one-minute warning, it's not intended

 18 to distract you, it is just intended to give you some

 19 gauge that you have one minute left to finish up. And

 20 then at the end of the five minutes Carlos will just

 21 raise this red card, and I will also notify you when

 22 five minutes is up.

 23 For the courtesy of everyone else in the room,

 24 even though you may have more to say, I would really

 25 appreciate if you can really honor the five minutes.

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 1 Again, there will be a likelihood that you'll have

 2 another opportunity to have an additional five minutes

 3 throughout this hearing. So I just want to make sure

 4 that everyone here that wants to make an oral comment

 5 here has that opportunity to do so and we allotted them

 6 the proper time to do so. And always remember that you

 7 have tonight too to submit additional comments for the

 8 record.

 9 I should also mention to you that we will

 10 likely take a break -- I'm going to try to go, you

 11 know, for about an hour and 15 minutes or so, and then

 12 we'll probably take a 10- to 15-minute break for

 13 everyone, particularly for the Court Reporter and our

 14 translator. It's exhausting work for them to do those

 15 tasks. So I'd like to provide them with, you know, an

 16 ample break to get a little bit of a rest.

 17 What also may happen is we may go through the

 18 speaker cards and no one else wants to make a comment

 19 at this point. So we will be here until 10:00 o'clock,

 20 this hearing will remain open in case someone wants to

 21 come after work or is just coming late. If no one at

 22 the moment wants to make any comments, I will take a

 23 break, we'll go off the record, we'll take maybe a

 24 15-minute break and we'll see if other people file in

 25 and give me additional cards, and then we'll, you know,

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 1 go from there. But that's just to give you kind of a

 2 sense of how we're going to move forward through the

 3 hearing.

 4 I think that's about all I have. I should

 5 mention too, if anyone needs the bathrooms, the

 6 restrooms, the restrooms are -- if you go straight down

 7 this hallway and to your right, there's a men's room

 8 and a ladies' room right to your right a few steps, a

 9 few steps down the hallway toward the lobby. We do

 10 have some light refreshments in the corner there so

 11 please help yourself with the light refreshments.

 12 And with that, I think we're ready to actually

 13 get this hearing underway and start taking some

 14 comments. The first person whose card I received is

 15 Cheryl Taylor.

 16 Ms. Taylor, if you can please step up to one

 17 of the microphones.

 18 Good evening, Ms. Taylor, how are you?

 19 MS. TAYLOR: I didn't want to be first.

 20 THE HEARING OFFICER: Oh, I could put you in

 21 the back, there are only three.

 22 MS. TAYLOR: I have the local newspaper here

 23 in town. And I've been a proponent for the Avenal

 24 Energy Project. I feel like if we've already gone

 25 through all the -- the testings and if everything works

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 1 out right, that the project should be a go. That we

 2 need more power. It's got to be better than nuclear.

 3 The solar is good, yeah, but we can't do all solar, so

 4 I think that it would be good for Avenal and good for

 5 California, for the economy, too. It will put people

 6 to work. I just wanted to say thumbs up to it. Thank

 7 you.

 8 THE HEARING OFFICER: Well, thank you. Thank

 9 you, Ms. Taylor. I appreciate your comment.

 10 The next person is -- is it Ingrid Brostrom?

 11 Thank you for coming tonight.

 12 MS. BROSTROM: My name is Ingrid Brostrom.

 13 I'm the attorney for the Center on Race, Poverty and

 14 the Environment. We're here tonight representing

 15 several groups, the El Pueblo Para El Aire y Agua

 16 Limpio, Greenaction for Health and Environmental

 17 Justice, and the Center for Biological Diversity.

 18 As we submitted some comments earlier today, I

 19 would also like to add a couple signatories to those

 20 comment letters, Valley LEAP, Latino Environmental

 21 Advancement Project, and also the San Joaquin Valley

 22 MAPA.

 23 I will be focusing my comments on the

 24 Environmental Justice Analysis.

 25 EPA was required to do this analysis to

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 1 address some recent decisions by the Environmental

 2 Appeals Board in place of compliance with the NO2

 3 regulations. Under Executive Order 12898, the EPA must

 4 determine any disproportionately high and adverse human

 5 health or environmental impacts of this permitting

 6 decision on minority or low-income communities.

 7 The EJ Assessment I can hardly call an

 8 analysis. It basically had zero information on the

 9 probable impacts of increasing the NO2 pollution in

 10 this region. It was nothing more than a treaty on

 11 general population statistics, as well as general

 12 health information about pollution consequences.

 13 In fact, the Assessment acknowledges that the

 14 EPA cannot reach any definitive conclusion about the

 15 specific human health or environmental impacts of

 16 shortly-exposed NO2 emissions from the facility on

 17 minority and low-income populations. This is exactly

 18 what the EPA is tasked with doing. And yet, EPA admits

 19 that it is unable to do even the bare minimum of

 20 finding out whether or not there's going to be an

 21 impact here. And, in fact, we know there's going to be

 22 an impact here.

 23 We have communities of Kettleman City, Huron

 24 and Avenal just miles from this facility, and all three

 25 of these communities suffer from multi-source pollution

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 1 from the nearby Highway 5. Kettleman City suffers an

 2 unexplained birth defect cluster, in addition to an

 3 expansion of a hazardous waste facility. These are

 4 some of the things that need to be addressed in the EJ

 5 Assessment, yet the EPA completely throws its hands up.

 6 Even in looking at the numbers, you look at

 7 the statewide averages of NO2 emissions into the valley

 8 and you see that the -- the addition of the Avenal

 9 Power Plant by their own calculation will exceed the

 10 new standard. The new standard was passed by the EPA

 11 and adopted and implemented to protect public health

 12 recognizing that the old standard failed to do so.

 13 Residents are living in a valley that is compromised

 14 severely by environmental pollution and are suffering

 15 the health consequences, and yet EPA proposes to allow

 16 additional pollution. It just doesn't make any sense.

 17 The EJ Assessment based its analysis on two

 18 other communities in the valley, the communities of

 19 Hanford and Visalia. Those are outside the 25

 20 kilometer radius the EPA itself set for determining

 21 adverse impacts, and those two communities, if you're

 22 from here, you will know that they're not reflective of

 23 the conditions in Avenal, and Kettleman, or Huron.

 24 Here we have minority populations of above 90 percent

 25 for each of those communities and highly impacts

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 1 isolation. Visalia and Hanford both are around 50

 2 percent minority and are some of the more

 3 economically-successful communities in the area.

 4 Additionally, neither Visalia nor Hanford sit

 5 adjacent to the Highway Interstate 5, the largest

 6 interstate highway that we have in California. In

 7 addition, with the hazardous waste expansion, we're

 8 going to see the addition of truck traffic and trucks

 9 idling nearby Kettleman City just miles away.

 10 The monitoring data in the EJ Assessment are

 11 just not reflective of the conditions here. EPA must

 12 go back and do a better job of determining what is the

 13 background of pollution felt by these communities.

 14 The health air quality standards, even if EPA

 15 required the applicant to comply with them, are still

 16 not sufficient to protect public health in this area

 17 particularly. You have cumulative impacts from

 18 immunocompromised health in Kettleman City from birth

 19 defects, high rates of asthma. You have drinking water

 20 contaminated with arsinic and benzine. You have

 21 proximity to pesticide application sites. You have the

 22 toxic risk exposure, risks from the proximity of the

 23 hazardous waste facility. You have Highway 5. You

 24 have Highway 41. You have a place that is in

 25 nonattainment for both the -- for PM2.5 and ozone.

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 1 All of these things are happening in these

 2 communities, and yet EPA can't even bother to determine

 3 whether or not there's a risk. I can tell you that

 4 there is a risk and this is the wrong place to site

 5 this facility. Thank you.

 6 THE HEARING OFFICER: Thank you. Thanks for

 7 coming today.

 8 The next person is Laura Baker.

 9 Miss Baker.

 10 MS. BAKER: Good evening, I'm also an attorney

 11 with the Center on Race, Poverty and the Environment

 12 here with Ms. Brostrom in representing these

 13 communities.

 14 In addition to our Environmental Justice

 15 comments, I'd like to make four additional points.

 16 First, EPA's proposal to approve the Avenal

 17 application without a demonstration that the source

 18 will not cause or contribute to a violation of the

 19 hourly NO2 standard or SO2 standard and to not require

 20 the source to meet the emissions limitation for

 21 greenhouse gases violates the Clean Air Act. The plain

 22 language of the Act defines the applicability of these

 23 requirements at the time construction commences prior

 24 to the issuance of the PSD permit. Neither the Act,

 25 nor the regulations, provide EPA with the authority to

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 1 waive these requirements.

 2 Secondly, EPA's stated grounds for

 3 grandfathering the Avenal Energy Project from these

 4 requirements are each fatally flawed. The first

 5 statement that the project will satisfy the old

 6 requirements in no way provides a basis for exempting

 7 the facility from the current requirements.

 8 Additionally applies the NO2 standard which the agency

 9 itself has deemed insufficient to protect public health

 10 in an area that's already fraught with environmental

 11 impacts.

 12 Next, EPA attempts to justify this proposal

 13 based on the timing of the permit submission. The

 14 Supplemental Statement of Basis fails to note that EPA

 15 could not have issued the permit prior to receiving the

 16 Endangered Species Act analysis by the Fish and

 17 Wildlife Service, which was not concluded until August

 18 of 2010.

 19 EPA further describes the modeling techniques

 20 required by the operative regulations as creating

 21 unanticipated challenges. However, if this is true,

 22 then these same challenges apply to all applicants and

 23 EPA cannot simply pick and choose who must comply, who

 24 is exempted from a requirement.

 25 Lastly, EPA's claim of equitable authority

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 1 derived from case law relies on a single case which it

 2 misapplies and is inapplicable to the current

 3 situation.

 4 My third point is that EPA's proposal creates

 5 a juxtaposition between two or more issues. If the

 6 exemption creates a policy applicable to other permit

 7 applicants, then it violates the Administrative

 8 Procedure Act for failure to conform to the noticing

 9 comment rule making.

 10 Secondly, if the exemption is only applicable

 11 to the Avenal facility, then it violates the Equal

 12 Protection Clause guarantees applied to the Federal

 13 Government through the Fifth Amendment of the U.S.

 14 Constitution.

 15 My last comment is that EPA's attempts to

 16 remove authority from the Regional Administrator is

 17 unlawful. The regulatory authority to issue PSD

 18 permits is specifically granted to Regional

 19 Administrators.

 20 40 CFR Section 124 states after the close of

 21 the public comment period under Section 124.10 on a

 22 draft permit, the Regional Administrator shall issue a

 23 final permit decision. To challenge this codified

 24 delegation formal noticing comment rule making period

 25 is required under the Administrative Procedure Act.

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 1 Therefore, the Administrator's actions to attempt to

 2 remove the Regional Administrator's authority to issue

 3 a PSD permit is unlawful.

 4 As you've already heard about our EJ analysis

 5 comments, I'll thank you for your consideration.

 6 THE HEARING OFFICER: Thank you.

 7 The next person we have is Leticia Lopez.

 8 Miss Lopez, if you would step up to the

 9 microphone. Thank you for coming tonight.

 10 MS. LOPEZ: Thank you. My name is Leticia

 11 Lopez. I'm a community member here in Avenal. And I

 12 was actually quite shocked to see that they -- the EPA

 13 actually approved for the energy plant to allow -- to

 14 not let the new law go into effect. And I see, or I

 15 don't understand why the energy plant -- yes, they

 16 applied, whenever they applied, but if the law is

 17 requiring them to have a law for California as the

 18 safety standards of the -- of the air conditions, why

 19 can't they abide by those laws? What changes would

 20 they need to do that it would take so much for them to

 21 make sure that they were abiding that law?

 22 I think especially since we're in the valley

 23 and we do have a smog problem and it is known that

 24 emissions from, say, a car or any factory is affecting

 25 the air more so than it would another area, they should

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 1 definitely have to abide by those laws. Therefore, I

 2 feel that as a resident here in Avenal, you know, our

 3 best interests should be taken into account by EPA and

 4 the power plant that's supposed to be coming in and not

 5 only affecting us, but everyone else in California.

 6 So they should definitely apply the new

 7 law and the new climate emissions law to the new -- to

 8 the energy plant if they're even considering it in

 9 there, so...

 10 And I also feel like the energy plant and

 11 others should make it a point to let the community know

 12 about it. I didn't even know that this was going on or

 13 that the EPA had approved the new law. Nobody -- I had

 14 in the last meeting had asked them to email me of any

 15 changes or if it had been approved or anything and I

 16 didn't receive anything. By reading a article in the

 17 New York Times is the way I found out, and that was

 18 last month. So it's kind of ridiculous to be a member

 19 of this community that we don't know anything, and it

 20 just kind of comes up under us.

 21 So I hope you take into consideration that it

 22 is our health, we are the people that live here, and it

 23 affects us, so thank you.

 24 THE HEARING OFFICER: Thank you.

 25 At this time I don't have any other speaker

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 1 cards. I don't know if there is anyone else -- thank

 2 you.

 3 MR. LEON: I was waiting to help you out.

 4 THE HEARING OFFICER: Thank you.

 5 MR. LEON: Good afternoon, my name is Ray

 6 Leon. I'm Executive Director and Founder of the Valley

 7 Latino Environmental Advancement Project. And actually

 8 I did grow up here for a big part of my childhood and I

 9 kind of reside here every now and then when I stay at

 10 my mom's house not too far from here.

 11 And so as it's obvious that this is a very

 12 important issue, not only because I have family here,

 13 some of which are here today, and because my mother,

 14 who is 74, who just beat cancer about a couple months

 15 ago, she lives here and she is part of that vulnerable

 16 population, but -- but she's one of very many.

 17 This is the San Joaquin Valley. We know that

 18 we are above the standards of a lot of the criteria

 19 plumes that this power plant will be dispersing into

 20 our air and impacting our air quality immensely. That

 21 is very alarming because of the fact that these are --

 22 that power plant will be surrounded by farmworker

 23 communities, and it's surrounded by farmworkers that

 24 will be working in the orchards nearby there and in the

 25 crops next door as well on the other side of the canal.

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 1 And, I mean, if anybody, you know, knows what

 2 that means, you know, you would know that that means

 3 farmworkers not only do not have health insurance, not

 4 only do they get minimum wage, but -- but they also

 5 toil in the most -- most, you know, difficult

 6 situations, I'm thinking about the heat in the summer.

 7 They don't get a day off because it's 120. You know,

 8 it doesn't happen, yet. You know, it should.

 9 And so that power plant is going to be placed

 10 in the wrong place, in the wrong area. It will have a

 11 detrimental impact on the public health of the

 12 community here in Avenal, the families, the children

 13 that on the most part do not have the health coverage

 14 that other families in the upper income communities are

 15 able to cherish. It doesn't exist. Asthma medication

 16 is more and more expensive.

 17 So this is not only an environmental

 18 injustice, this is an economic injustice. This is

 19 environmental racism, just to take it back to the

 20 original terminology that was used prior to the

 21 government finally realizing that environmental justice

 22 was a concept that needed to be paid attention to.

 23 And so the -- the third point I want to make

 24 is that, and to strengthen just the whole notion of the

 25 environmental racism, is just the policies that exist.

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 1 I think my colleagues from CRPE have shared some very

 2 strong language in terms of why it shouldn't happen,

 3 but, you know, one of the -- the mechanisms that exist

 4 here in the region so that everybody could know is I'm

 5 going to share a little story in terms of how one of

 6 the power plants in Firebaugh was established.

 7 And the San Joaquin Valley Air Pollution

 8 District here uses ERC, emission reduction credits.

 9 And the way that they come about of piling up ERCs is

 10 by reducing pollution in other areas. They take

 11 those -- they transform them into credits. And perhaps

 12 I think they use 20 percent of them, so the 20 percent

 13 of pollution doesn't return. So that's kind of like

 14 the good part. The bad part is that they'll take them

 15 from different areas. And in the case with Firebaugh,

 16 the power plant out there, they took the credits from

 17 an area in Tracy and an area in Kern County, both in

 18 zip codes that were upper income levels and were a

 19 majority of Euro-American, and then they brought those

 20 credits together to provide the opportunity so that a

 21 power plant, which was essentially consolidating

 22 pollution and placing it in the low income community

 23 area where the minorities are Latinos were the

 24 majority, farmworkers. That's environmental racism.

 25 There is no other way to put it.

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 1 And so what is occurring here is the same

 2 thing. The EPA has to really embrace some

 3 responsibility and say, no, definitely not in the San

 4 Joaquin Valley. I mean, I know there's a transmission

 5 line, that's why they're doing it. The power, the

 6 energy will not be for Avenal. It gets into the grid

 7 and disperses out throughout the State of California.

 8 It's 600 megawatts. If it was for Avenal, it would be

 9 way too much. One megawatt per a thousand households,

 10 that's about 3,000 and some people.

 11 I think the solar plant, if you want to see it

 12 that way, the solar plant of 10 megawatts covers Avenal

 13 and whatever industries are in the community -- in the

 14 area, and even the prison. But the prison has its own

 15 energy plant which is powered by diesel, which is a

 16 whole other matter of particulate matter of PM2.5,

 17 other pollution that impacts the prisoners

 18 disproportionately out there.

 19 But anyhow, what I'm saying is that this is

 20 not the right place to place this power plant. 500

 21 tons of material plumes in this area will be

 22 detrimental to the communities.

 23 And just to conclude we got to -- I mean,

 24 there's other areas. If you really want to do a

 25 natural gas power plant, I'm not a big supporter, but

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 1 the coastal area, at least the breeze can take the

 2 pollution away, right? It will disperse it throughout

 3 and will not be a huge impact. Here it will stick

 4 around. It will stay in the bowl, which is the San

 5 Joaquin Valley, and impact farmworkers' families. It's

 6 environmental racism.

 7 I hope you get that message to Lisa Jackson,

 8 we've shared it with her before. And we stand strong

 9 on that fact, because if you want to be on the right

 10 side of history, do not approve this permit. Thank

 11 you.

 12 THE HEARING OFFICER: We have a card from --

 13 is it Maricela Mares-Alatorre?

 14 Thank you for coming tonight.

 15 MS. MARES-ALATORRE: Hi, my name is Maricela

 16 Mares-Alatorre. I've been a resident of Kettleman City

 17 for 33 years. I went to Avenal High School here for

 18 four years.

 19 I don't know a lot about the science behind

 20 it, but one thought that comes to mind is I had my

 21 cellphone prior to them passing the law where you

 22 couldn't call while you're driving or you can't text.

 23 Since I had my cellphone prior to that, does that mean

 24 I don't have to follow the law? Because it seems like

 25 that's what the situation is right here. And I don't

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 1 think that's necessarily right or good for the people

 2 that have to live in this area.

 3 As you heard, Kettleman City has suffered from

 4 a rash of birth defects that we don't know what has

 5 caused them. The only thing that we know that the

 6 mothers had in common is their environment. And when

 7 the State Department of Public Health came out and did

 8 their report, one thing that they did say was that

 9 pollution in the area, that we were exposed to a large

 10 number of sources of pollution, including pesticides

 11 from the fields, diesel emissions from the I-5 and

 12 Highway 41. We're situated next to the largest toxic

 13 waste dump in the West and we have contaminated water.

 14 So one thing that they did say in the report was that

 15 pollution should be reduced. And this was agreed upon

 16 by the State.

 17 So I'm wondering how approving this power

 18 plant goes along with that recommendation if that is

 19 helping to reduce pollution so that children are no

 20 longer born with unexplained birth defects or, you

 21 know, passing away, because we have had three children

 22 that passed away suffering from birth defects. I'm

 23 wondering how that goes along with that, with the call

 24 to reduce pollution? Does it? And if so, why is it

 25 okay to go ahead and pass it? We're going to be

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 1 neighbors to it. We're already overburdened as it is.

 2 And, again, I think that when you have laws,

 3 you need to follow the laws to keep people safe. I

 4 have a big tax bill coming on the 15th and I can't

 5 choose not to pay it, because that's the law, it has to

 6 be paid. And it seems like everyone should have to

 7 follow existing laws, even a big power plant with lots

 8 of money. Thank you.

 9 THE HEARING OFFICER: Thank you for coming

 10 tonight.

 11 At this time I don't have any more speaker

 12 cards. Is there anyone else in the audience that would

 13 like to make a comment?

 14 Thank you.

 15 MS. AYALA: Hello, my name is Jessie Ayala.

 16 I'm a community member and I also am a volunteer for

 17 the Latino Environmental Advancement Project, Ray

 18 Leon's organization. And I'm very concerned. I have a

 19 few things to say.

 20 First of all, I think the amount of security

 21 here seems ridiculous. I think it's intimidating to

 22 the public. How do you expect the public to voice

 23 their opinions if they may feel intimidated to come in

 24 here?

 25 Second of all, there was a community member in

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 1 here that said she didn't even know about the project.

 2 And to tell you the truth, I really didn't know much

 3 about it, and I think it's the community's right to

 4 know what's going on, because how are they going to

 5 have an opinion if they don't even know what's

 6 happening in their community?

 7 And also, it's very obvious that this area has

 8 very high pollution levels, so that's a main -- a major

 9 concern. I have a sister that had a child with a birth

 10 defect and there's too close family friends that had

 11 children with birth defects, too. So I'm concerned

 12 about the future of the children in this area. Thank

 13 you.

 14 THE HEARING OFFICER: Thank you.

 15 MS. AYALA: Thank you.

 16 MS. QUIRALTE: Hello, my name is Cindy

 17 Quiralte. I'm here representing the San Joaquin

 18 Chapter of MAPA here today. I'm originally from

 19 Merced. I grew up unfortunately two months early due

 20 to some birth defects regarding a lung developing so I

 21 had asthma throughout my childhood growing up, which is

 22 very expensive which caused me to be a very sick girl

 23 at school. And I was missing school a lot which left

 24 me really behind in my education. So those are some of

 25 the things that I've had to go through with my own

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 1 experiences what can happen through health issues and

 2 health problems that come about through pollution.

 3 Something that I really want everyone to

 4 understand is public health for the community of Avenal

 5 is being put into more jeopardy than it already faces.

 6 The population of Avenal is almost 90 percent minority

 7 and this issue is going to be affecting a lot of the

 8 population immensely. Farmworkers are a key component

 9 to this community and they're not even able to finance

 10 and pay for their health insurance from the health

 11 issues that they are already facing through Avenal, the

 12 pollution issue.

 13 The power plant will bring about more

 14 pollution issues, and I am -- I am really concerned

 15 with the fact that how a community would be able to

 16 finance and pay for these issues for not only for

 17 themselves now, but also for the future generations

 18 that come? So I'm wondering if you guys are taking

 19 into consideration the people that are here now and the

 20 people that are going to be here in future generations

 21 to come?

 22 THE HEARING OFFICER: Thank you.

 23 MS. MADRUGA: My name is Ana Madruga, I'm here

 24 for Greenaction for Health and Environmental Justice.

 25 My thing is that EPA hasn't even given an answer to

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 1 those mothers about the children that passed away in

 2 Kettleman City, but yet you guys are ready to approve

 3 power plants. When you guys approve power plants,

 4 you're telling those mothers that you guys really don't

 5 care about the health of their children. Nobody has

 6 gone out to Avenal and done any studies on health.

 7 There's a lot of health issues here in Avenal, as well

 8 as in Kettleman City. You know, when does this stop?

 9 I think it's time that you guys go back and

 10 instead of just sitting down at your desks and not

 11 doing the right job that you guys should be doing, go

 12 door to door, ask people how they're doing, because

 13 there's a lot of sick people out there, and you guys

 14 need to first look at that first before approving any

 15 power plants. Thanks.

 16 THE HEARING OFFICER: Thank you.

 17 MR. NARES: My name is Ramon Nares. And I

 18 want to remind EPA since when have you done your job?

 19 Never. For 20 some years, 30 some years I've been

 20 fighting with you because of the toxic dump that we

 21 have in Kettleman City, and when have you listened to

 22 us?

 23 You also issue the permits under the table.

 24 Is there money in it for you or what? Because you've

 25 never listened to us. Or have you ever listened to us?

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 1 No matter how many problems we've had, when have you

 2 listened to us? When have you paid attention to us?

 3 You know that our water is poisoned and you're going to

 4 add more to that? We have a lot of health problems and

 5 you're going to add more? How far will this go? Don't

 6 you think about the harm that you're causing us? No,

 7 all you're thinking about is the money.

 8 You're like the Kings County Supervisors

 9 always issuing permits. You don't know there's a

 10 problem. There's no license for Chem Waste, they give

 11 them special permits. I wish when they took my license

 12 away, my driver's license, they would give it back

 13 instead of giving them license to poison to have a

 14 special permit so I could continue driving even if I

 15 didn't have it.

 16 Let's hope you can develop a little bit of

 17 conscience and understand our problem, thank you.

 18 THE HEARING OFFICER: Is there anyone else at

 19 this time that has a -- thank you.

 20 MR. CONTRERAS: Good evening. My name is Ray

 21 Contreras and I'm here for the second time. I was here

 22 at the last meeting that you held. I am a little bit

 23 surprised because the last time that you had this

 24 meeting was to see whether you were going to grant this

 25 permit for the construction of this plant. And today I

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 1 realize that it is, in fact, going to be built, and it

 2 seems somewhat unfair to me because they didn't tell us

 3 anything, nothing happened. And I'm beginning to

 4 realize that you're not even going to follow the new

 5 laws in effect for the construction site is going to

 6 pollute more. It seems a barbarity to me. You simply

 7 don't see, don't listen to the people's opinion. It

 8 seems to me that it doesn't matter enough to you.

 9 We already have enough problems with our trash

 10 problems here in Avenal. I don't know if you saw at

 11 the entrance to the City, we have a huge trash can at

 12 the entrance. Okay, they're covering it up, but if it

 13 rains one day, all that garbage is going to come into

 14 town and it's nothing more than pollution. So what's

 15 this about? You're going to pollute more? We have

 16 enough pollution here in the area. So you should think

 17 about it in more depth and you should think about this

 18 town and its community. Thank you.

 19 THE HEARING OFFICER: Is there anyone else at

 20 this time? What I'd like to do is why don't we take --

 21 the time is 7:55 right now. Why don't we take a

 22 ten-minute break and then I'll resume the hearing, and

 23 if people would like to make comments at that time,

 24 we'll start with the same process, thank you. And

 25 thank you for everyone that has made comments so far.

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 1 (Recess taken.)

 2 THE HEARING OFFICER: Ladies and gentlemen,

 3 we're going to get back on record, but before I start

 4 taking comments again, there was something I did forget

 5 to mention. In addition to submitting oral comments

 6 tonight and submitting something to EPA through the

 7 Internet, there's a third way that you can submit

 8 written comments to the agency tonight both in English

 9 and Spanish. There are these public comment forms that

 10 are on the table in the lobby and there's this white

 11 form that you can fill out and you can write your

 12 comments on and submit it into the comment box back

 13 there. And we also have one that can be -- that's in

 14 Spanish so you can submit both in either English or

 15 Spanish. So I wanted to mention that.

 16 And right now we have another speaker, Lupe

 17 Chavez.

 18 Mr. Chavez, thank you for coming tonight.

 19 MR. CHAVEZ: Hello, my name is Lupe Chavez.

 20 I'm a resident from Avenal. And as you can see, I was

 21 ready to go to play some basketball when I saw the sign

 22 up there. That's my comment, you know, that I have. I

 23 don't have numbers or what's going on, no idea what's

 24 going on, just from the little bit I've heard right

 25 now.

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 1 So my comment's more of a way we can get

 2 meetings like this more out there, more known. I'm

 3 pretty sure that they put it in the paper, like, you

 4 know, like I'm always on the go having to coach sports

 5 here in town with small kids. I don't really have time

 6 to look at the paper. You know, and if it wasn't I was

 7 driving by, I would have never known about this.

 8 So, you know, I can't say nothing positive or

 9 negative about what's going on here besides maybe put

 10 the information out so more -- get more people to know

 11 about what's going on and when the meetings are.

 12 That's it.

 13 THE HEARING OFFICER: I appreciate it,

 14 Mr. Chavez. And our team is always looking for better

 15 ways to notify the community, so thank you. Is

 16 there --

 17 MR. NARES: I wanted to make an additional

 18 comment. Months ago we had a meeting in Hanford where

 19 I was not allowed to speak because I was asking for

 20 justice, and the only justice there was 10 or 12 police

 21 officers took me out. It seems to be the same

 22 situation here, although I haven't been kicked out yet,

 23 but there are way more police officers than people

 24 here, and that is because they want to intimidate

 25 people, and they do. With so many police officers they

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 1 do intimidate people.

 2 And I would like for you to listen to what I

 3 say because you have never ever listened to us. Keep

 4 that in mind. You are there to protect us, not poison

 5 us. And when have you done something for us? Have you

 6 ever done anything for us? Remember that. Have you

 7 ever done anything for us? Never.

 8 I'm telling you for about 30 years I've been

 9 fighting with you and EPA has never done anything for

 10 us. I don't know what your purpose of having you here

 11 is if it's to protect the environment, when have you

 12 protected it? When have you done anything for the

 13 community? Never. Nor will you ever. Thank you.

 14 THE HEARING OFFICER: Thank you.

 15 At this time I don't have any additional

 16 cards. I don't know if there's anyone else in the

 17 audience that would like to speak again. I mean, if

 18 not, what we'll do is I will go off the record again,

 19 we'll take another break. And then we'll, of course,

 20 go back on the record, and I'll probably -- we'll see

 21 what time it is. It's about 8:14 right now. Why don't

 22 we go off the record for 15 minutes. I will wait until

 23 8:30 and we'll see if there is anyone that would like

 24 to make an additional comment at that point. So it's

 25 8:14. We're off the record and we'll go back on the

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 1 record at 8:30. Thank you.

 2 (Recess taken.)

 3 THE HEARING OFFICER: Hello everyone, it's

 4 8:32. I just thought I'd check in with folks just to

 5 see if there's anyone else who would like to make

 6 comment at this time. If not, what I think we'll do is

 7 we'll take a little bit of a longer break at this

 8 point. I think we'll break for -- unless I receive a

 9 card -- well, let's break for about 20 minutes and then

 10 I'll check in with folks again.

 11 So it's -- I have 8:32 right now, we'll come

 12 back on line -- we'll say 8:50. We'll come back on

 13 line at 8:50 and I'll check in again. Thank you.

 14 (Recess taken.)

 15 THE HEARING OFFICER: Hello, ladies and

 16 gentlemen, it's 8:50. I said I would check in at this

 17 time, so I just wanted to just check in with everyone

 18 to see if there's anyone that wants to make a comment

 19 at this time. If not, I think what we'll do is we'll

 20 take a break until let's say -- let's say 9:15. We'll

 21 go about 25 minutes, half hour, I'll check in again at

 22 9:15, and we'll go from there. Thanks again.

 23 (Recess taken.)

 24 THE HEARING OFFICER: Hello, it's 9:15 and I

 25 just want to check in again. I just want to make sure

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 1 there's no one here that wants to make a comment for

 2 the record.

 3 What we'll do is we'll break again until 9:45,

 4 and then we'll check in again at 10:00 o'clock and then

 5 we'll close up. So it's about 9:16 right now and we'll

 6 break until 9:45. Thank you.

 7 (Recess taken.)

 8 THE HEARING OFFICER: It's 9:45 and I just

 9 want to check in again to make sure that there's no one

 10 in the room that wants to make any public comments on

 11 the record. What we'll do is we'll break until 10:00

 12 o'clock and then I'll do one final check in and we'll

 13 wrap up. Thank you.

 14 (Recess taken.)

 15 THE HEARING OFFICER: It's 10:00 o'clock and

 16 there's no one else that would like to make any

 17 comments so I'd like to close up the hearing.

 18 I want to thank everyone for coming tonight.

 19 I want to thank the Air Division Team from EPA for

 20 doing an outstanding job of organizing this public

 21 comment period, and thank you and good night.

 22 (Meeting adjourned.)

 23 ---oOo---

 24

 25

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 1 ---oOo---

 2

 3 I, CHERI FIKE, a Certified Shorthand

 4 Reporter, DO HEREBY CERTIFY:

 5 That the foregoing and annexed pages

 6 constitute a full, true, and correct transcript of the

 7 proceedings had and testimony given in the hearing of

 8 the matter entitled as upon the first page hereof.

 9

 10 Dated: April 14, 2011.

 11

 12

 _____________________________

 13 Official Court Reporter #6200

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