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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF MAINE BOARD OF ENVIRONMENTAL PROTECTION



# ORIGINAL

IN RE: CHAPTER 131 : CUTBACKASPHALT

AND EMULSIFIEDASPHALT

PRESIDINGOFFICER: SUSAN LESSARD, CHAIRMAN

This hearing was held pursuant to Notice at the Augusta Civic Center, Civic Center Drive, Augusta Maine, on June 18, 2009, beginning at 9:05 a.m.

ALLEY & MORRISETTE REPORTING SERVICE 207-495-3900Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (This hearingwas held before the Board

of Environmental Protection, at the Augusta Civic Center, Civic Center Drive, Augusta, Maine, on June 18, 2009, beginningat 9:05 a.m.) * * * * *
. CHAIRPERSON LESSARD: Good morning
. The Board of Environmental Protection is holding a public hearing today on Chapter 131 : Cutback Asphalt and Emulsified Asphalt
. My name is Susan Lessard and I amthe Chair of the Board of Environmental Protection and I will be the presiding officer today
. Other Board members here are Wing Goodale, the deputy director and a senior scientist at the Biodiversity Research Institute who is fromFalmouth, Lissa Widoff, the executive director of a nonprofit foundation with a background in forestry and public administration who resides in Freedom
. We have Andy Nixon who is a retired business executive who resides in Brunswick
. Don Guimond, the town manager of Fort Kent and the co-owner/operator of a family farm who resides in Fort Kent
. We have Dick Gould, a former state legislator, high school teacher and current code enforcement officer in Greenville
. We will have an assistant attorney general who is

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who is the executive analyst for the Board
. We have our newest Board member, Frank Woodard, who is an engineer fromFalmouth, Nancy Ziegler, an attorney fromSouth Portland, and Matt Scott, a retired aquatic biologist and beekeeper from Belgrade, and at the end we have Terry Hanson who is our administrative assistant
. Staff here today fromthe Department of Environmental Protection Bureau of Air Quality are Jeff Crawford, Ron Severance and Carolyn Wheeler
. Our recorder today is Joanne Alley of Alley & Morrisette Reporting Service
.

Today's hearing is being held pursuant to 38 M_R.S.A
. Sections 585-A and 345-A
. In addition, because this rule will be submitted as a revision of the Maine State Implementation Plan for Air Quality, today's hearingwill be conducted pursuant to the requirements of Title 40, Part 51 of the Code of Federal Reaulations
.

Notice of today's hearingwas published in the Kennebec Journal on May 16, 2009 and in the Kennebec Journal , Lewiston Daily Sun, Waterville Morning Sentinel , Portland Press Herald and Bangor Daily News on May 27th, 2009
.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Notice of today's hearing was also sent to

all persons on the Department's regulatory notice mailing list, affected sources listed in the Bureau's inventory database and to other persons who have expressed interest in the rule that is the subject of today's hearing
.

The record for written comments shall remain open until 5 p.m., on June 30th, 2009
. All written testimony should be addressed to the Bureau of Air Quality and clearly marked as follows: for inclusion in the June 18, 2009 Chapter 131 public hearing record
.

Today's hearing will be transcribed and made available to all Board members. Based on the complete record, the Board will vote to approve, deny or amend the proposed rule at a regularly scheduled Board meeting
. Copies of the final staff recommendation will be available upon request before the rule is presented for adoption
. An attendance sheet is presently circulating the roomfor those interested in being
on a mailing list for this rule.

Procedures call for presentations, first, by proponents, second, by opponents and, third, by other interested parties who are neither for nor

ALLEY & MORRISETTE REPORTING SERVICE 207-495-3900Page 5

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 against. If you plan to speak and have not

already done so, please sign in nowon the appropriate speakers' sheet and I have those here
. If there's anyone who came in late that has not yet signed up, we can get you added
. Following each presentation there will be an opportunity for members of the Board to direct questions through the Chair
. Copies of the proposed rule are available on the table by the door
. At this time I would ask all persons who intend to testify to please stand to be sworn in
.

Raise your right hand
. Do you swear to tell the whole truth and nothing but the truth? (Witnesses respond answer in the affirmative
.

CHAIRPERSON LESSARD: Thank you. Any questions? If there are no questions, we will begin by hearing testimony fromthe staff
. Good morning
.

MR
. CRAWFORD: Good morning, Chairman Lessard, Members of the Board, my name is Jeff Crawford
. I'mwith the Bureau of Air Quality
. I'mhere today to tell you a little bit about the Department's proposal to amend its Chapter 131, Cutback Asphalt and Emulsified Asphalt Rule
. Chapter 131 was originally adopted back in 1993

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pursuant to requirements under the Clean Air Act
.

Section 184 of the Clean Air Act requires states to implement or update reasonably available control technology or RACT controls on all major sources of volatile organic compounds and nitrogen oxides and also source categories for which the U.S
. Environmental Protection Agency promulgated standards known at control technique guidelines or CTGs
. EPA promulgated a CTGfor asphalt paving operations back in 1977, and after the passage of the 1990 Clean Air Act where Maine had a number of nonattainment areas and also with the entire state being included in the Northeastern Ozone Transport Region, we were required to promulgate a regulation for asphalt paving operations
. The existing rule prohibits the use of cutback asphalt during the ozone season with some exceptions and also establishes volatile organic compound or VOC content limits for emulsified asphalts ranging from3 percent to 12 percent.

A little background first
. We see a lot of asphalt being used paving roads and so forth
. The vast majority of large paving operations I understand to be done with hot mix
. This is the hot mix asphalt you see. Invariably it's ona

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you take some pity on the guys doing this
. That is, in fact, the most commonly used paving material and relatively fewvolatile organic compound emissions fromit because it's a very heavy long chain hydrocarbon
. Long chain hydrocarbons do not evaporate, they're not volatile, so, therefore, froman ozone air quality standpoint there are very fewemissions
. The other two categories of asphalt that are used or should I say formerly usedwere cutback asphalt which was traditionally used as a tack coat between old pavement and newpaving operations and perhaps more frequently for patching operations, is essentially a long chain or heavy asphalt paving material that's been mixed or cutback anywhere fromabout 25 to 45 percent volume or it depends on howmuch the operator puts in there with solvents which might range fromkerosene, fuel oil or perhaps something a little more volatile
. As you can guess, there are significant emissions fromsome of the more volatile solvents, and these materials at least over the last ten years or so have been used increasingly less
. The third major category, and it's really starting to

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 take on a real major role in some operations, I'll

explain that shortly, are emulsified asphalts, and these are asphalt cements that have an emulsifier, think soap, added so that they can be liquefied with water. As the paving material is spread on the road and consolidated, some of the -- some of the emulsified compounds get a little closer, they drive off the water and essentially they flocculate. Think latex paint
. an emulsified coating
. So emulsified asphalt is used
. That's actually that's the way an These compounds are used fromeverything nowadays from, coats, patching materials, and in again, tack 

### a lot of the recycled aggregate paving operations you see where they're grinding up the road and then mixing it with asphalt and spreading it right down to a nice flat surface, those are, in fact, emulsified asphalts
. The impetus behind this rulemaking is under the 1997 eight-hour ozone standard, and I previously mentioned we need to update these, Maine is required to reviewand update its Reasonably Available Control Technology Rules and SIP revisions. Some of those are also on the agenda for later today, and as part of the Department's analysis of its existing rules, we

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 identified Chapter 131 as a rule that needed to be

updated because it no longer constituted a baseline RACK or ReasonablyAvailable Control Technology for these operations
. Keep in mind that RACT is essentially a cost effective control technology
. It's not the most stringent level of control, it is a moderate level of control
. Approximately five years ago the Ozone Transport Commission and consultants developed a model rule for paving operations and, in fact, a number of states here in the Northeast have already updated their rules essentially along the lines of that model rule
. Connecticut has a newrule in place and has updated its regulations
. Massachusetts, in fact, identified its existing rule as needing to be updated and they're in the rulemaking process I understand
. Rhode Island has completed hearings and NewJersey has an existing rule
. I believe Delaware, Pennsylvania and Maryland will be following soon. Similar rules are also in effect in other states such as Texas, Illinois, I believe Wisconsin, Michigan and of course California
. What the Department is proposing to do is simply to amend its existing rule to prohibit the use of cutback asphalt during the

ALLEY & MORRISETTE REPORTINGSERVICE 207-495-3900Page 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ozone season, eliminate those exceptions, and to

require a more stringent emission limit for those emulsified asphalts
. What we are proposing is a six milliliter oil distillate requirement for emulsified asphalts
. It's a little different test, which is whywe've gone frompercentages to six milliliter content
. We're also proposing to extend the rule's applicability frompublic roads and highways to all paving operations
.

With that, I will be more than happy to entertain any questions you may have
.

CHAIRPERSONLESSARD: Any Board members have any questions? If not, thank you very much
. We will move on to proponents which there seems to be a dearth of on this list
. Unless someone came in afterwards who wishes to speak in favor, I believe we have opposition and one for neither for nor against
. We'll start with the opposition
. Roland Fogg
.

MR
. FOGG: Good morning
. My name is Roland Fogg
. I work for Pike Industries
. The reason I amtestifying here today is that I feel that as this is proposed it does not reflect what you people are really trying to do, and the reason that I say that is I'mvery familiar with testing

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of liquid asphalts because I've spent many years

doing that and I find that this regulation does not meet or should I say address the situation that we're trying to take care of
. Under Section 3-A it says -- Section 3-A, number 2, emulsified asphalt and cutback asphalt, asphalt shall contain no greater than .1 percent VOCby weight
. Liquid asphalt as a rawmaterial, the specifications allowup to one half of one percent of liquid asphalt itself, and that is determined by the thin filmoven test. So what we're saying is that raw asphalt could not even be used on the highways
. So I would suggest that the -- that statement of asphalt containing no greater than .1 percent VOCs by weight be eliminated
.

Then to go on further, we are talking of providing a standard to which to test these materials
. I would suggest that in Section B where it says asphalt produces no greater than six milliliters of oil distillate in accordance with ASTMMethod D-244, standard test method and practices for emulsified asphalts or AASHTOT-59 standard method for the test of emulsified asphalts
. I would also include ASTMMethod D-402, standard test method for distillation of cutback

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of tests for cutback asphalt products
. The reason for this being is that both products would be tested the same way. Theywould both have the ability to have no more than six milliliters of distillate oil come off froma distillation, and my thoughts are that if we say that only .1 percent VOCs can come off, that totally eliminates the opportunity of ever a lowemission cutback ever beingdeveloped, and I feel that it's a possibility that one could be developed
. So it's for these reasons that I feel that we need to look at making this a standard whereby the six milliliters of oil distillate is the standard that we're setting
.

I knowthat it probably doesn't mean a lot to you but the -- the emulsified asphalt test is a distillation to 500 degrees
. Cutback asphalt is a distillation to 680 degrees Fahrenheit
. So actually it is going to be much tougher for a cutback asphalt to meet that specification but as long as we go by the ASTMor AASHTO standards, I feel that we are working on an equal footing for both products
. Any questions?

CHAIRPERSON LESSARD: Lissa
.
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. WIDOFF: I'mnot sure if this is a

question for you. This may be a question for staff on clarification
. I read Section A to imply that cutback asphalt would be eliminated entirely and that emulsified asphalt would be eliminated except for the conditions and I think I understood your comments to be suggesting that there would be exceptions to the cutback asphalt
. So I don't knowif I'minterpreting things correctly and can you clarify for me?

MR
. CRAWFORD: That is correct
. MS
. WIDOFF: My interpretation is correct? MR
. CRAWFORD: Yes
. MS
. WIDOFF: So I was trying to followyour comments talking about similar standards for cutback versus emulsified, but I just read it that cutback is being eliminated --

MR
. FOGG: I would -- MS
. WIDOFF: -- during this time
. MR
. FOGG: Myself, if the cutback asphalt met the specifications or the standard set forth in this regulation, I would think it would be perfectly all right to use.

MS
. WIDOFF: So you're suggesting that conditions be added that would allowthe use of

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cutback asphalt if those conditions matched what

are being proposed for the emulsified asphalt and in addition, you're suggesting that the VOC requirement proposed of .1 percent is too low?

MR
. FOGG: That's correct. MS
. WIDOFF: In terms of just the formula for asphalts?

MR
. FOGG: That's correct. MS
. WIDOFF:- And this was just for clarification so I could then figure it out. Thanks
.CHAIRPERSON LESSARD: Any others? Frank
.

MR
. WOODARD: Can you explain a little bit further your comment that even rawasphalt couldn't be used at a certain time during the ozone period?

MR
. FOGG: Well, according to the test methods used for testing liquid asphalt, there is

-- part of the specification is that one-half of one percent can be lost to what they call a thin filmoven test where it is put in an oven and heated for hours at 360 degrees to simulate going through a hot mix plant and so on and so forth
. That is basically -- I mean, it's VOCs which would be coming off fromthe AC
. It's a very small

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will have some, no matter howminute, will have some VOCs which will come off over a period of time
. MR
. WOODARD: But do you have data to show that enough will come off fromrawasphalt to not meet the requirement?

MR
. FOGG: You would have to look at the certificates of analysis for the present asphalt being used
. I would -- I would say that we could obtain those very easily and see what there is for a loss on asphalt
.

CHAIRPERSON LESSARD: Would it be possible for you to provide your comments in writing to us as well by the June 30th deadline so that we have this submitted in writing to us as well?

MR
. FOGG: Certainly
. CHAIRPERSON LESSARD: Thank you. MS
. WIDOFF: I have one more question
. You made a comment that this .1 percent VOCstandard would prevent a lowVOC emission product from being developed, and I didn't really understand what you meant because it is aiming towards a lower emission product
.

MR
. FOGG: You're looking to reduce VOCs

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distillate on one product, then I feel it should be allowed on an equally competing product
.

MS
. WIDOFF: Okay. MR
. FOGG: Because six milliliters of distillate is actually -- because they use 200 milliliters of liquid in the distillation
. So if you get six milliliters, you're looking at three percent.

MS
. WIDOFF: Okay
. It's beyond what I understand but I think Chairman Lessard is right, if this could be sort of spelled out in writing in the comments, then I think we would all be able to analyze it
.

MR
. FOGG: Yes, and I apologize for my -- MS
. WIDOFF: No, that's okay, that's okay
. I'mjust trying to followit
. Thank you for your time
. MR
. FOGG: -- Kind of a haphazard presentation
.

CHAIRPERSON LESSARD: You're fine, sir, no problem

. Thank you. Our next presenter would be John Chorus fromPike Industries
.

MR
. CHORUS: Good morning
. I'll by very brief because I'mnot the expert, Roland is, but

ALLEY & MORRISETTE REPORTING SERVICE 207-495-3900Page 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as I was just listening to his testimony and I

remembered hearing this fromhimlast night, one of the things that he touched on, and I hope it hit home, is that if you -- if you work with the six milliliter numberwith one and you don't do it with the other,, thenyou'd actually -- you'd cut out one of the competing -- there are some people that do this and some people who do that, so you'd lose one whole avenue. So that would also -- you know, it's almost like taking two car makers and eliminating one of them
. I think that's the way I understand it fromRoland last night, and the other thing, I just wanted to go on record as a member of Pike Industries, I'mtheir environmental coordinator, that he knows what he's doing and if anybody needs any assistance, it would be from him
. That's it
. CHAIRPERSONLESSARD: Any questions for Mr
. Chorus? Thank you very much
. Those were the only two that we had listed on the formin opposition
. Were there people who came in after who wished to speak in opposition that didn't have a chance to sign the sheet? Okay, testimony neither in support nor in opposition, and we have Gene Welton fromLane Construction
. Good morning
.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR
. WELTON: Good morning, Chair Lessard,

good morning, Members of the Board
. As Susan mentioned, my name is Gene Welton and I'man environmental coordinator for the Lane Construction Corporation. We are a user of emulsified asphalt and have been primarily using emulsified asphalt for the past probably ten years. We typically don't use cutback asphalt
. We use it in our chipped steel projects, our tag applications for pavement and production of cold mix
. Our main concern would be that any Maine Department of Transportation concerns would be addressed by the Department of Environmental Protection
. Maine DOT is a large customer of ours and uses our products on a daily basis
.

The only concern, I had heard, and I'mnot sure if it was addressed in an internal meeting, but I'd like to knowproduction of cold mix in particular with an emulsified asphalt during the period September 15th to May 1st if that was produced with a grade of emulsion over the six milliliters, if that was produced during that time, would it need to be used during that time or if it's left over, can it be used after the May 1st deadline
. It's a product of that emulsified

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 asphalt so I don't knowif it still pertains but

it was a question that I think may have been asked and may have been answered already but that would be our main concern. Our supplier, Downeast Emulsions, their representative, Steve Ford, is here to probably answer any specific questions on emulsification itself and fromwhat I'mtold, we're in pretty good shape there
. I'djust heard that concern was out there and I wasn't sure if it was addressed
.

CHAIRPERSON LESSARD: Any questions for Mr
. Welton? Thank you very much
.

MR
. WELTON: Thank you. CHAIRPERSON LESSARD: Anyone else who wishes to speak neither for nor against who did not have a chance to sign up prior? Hearing none, I will declare the public hearing closed
. As was stated before, testimony -- written testimony can be submitted until June 30th at 6 p.m . Thank you very much
. (Whereupon, the above-named hearingwas concluded at 9:38 a.m.)

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE

I, Joanne P
. Alley, a Notary Public in and for the State of Maine, hereby certify that on the 18th day of June, 2009, personally appeared before me the within-named witnesses who were sworn to testify to the truth, the whole truth, and nothing but the truth in the aforementioned cause of action and that the foregoing is a true and accurate record as taken by me by means of computer-aided machine shorthand
.

I further certify that I ama disinterested person in the event or outcome of the aforementioned cause of action
.

IN WITNESS W .H.EREOF, I have hereunto set my

Joaftne P
. Alley Co,-urt Reporter/Notary Public
my commission expires: July 17, 2015

ALLEY & MORRISETTE REPORTINGSERVICE 207-495-3900