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STATE OF MAINE 

BOARD OF ENVIRONMENTAL PROTECTION 

ORIGINAL 

IN RE : CHAPTER 131 : CUTBACK ASPHALT 

AND EMULSIFIED ASPHALT 

PRESIDING OFFICER : 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 . 

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(This hearing was held before the Board 

of Environmental Protection, at the Augusta Civic 

Center, Civic Center Drive, Augusta, Maine, on 

June 18, 2009, beginning at 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 am the 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 from Falmouth, 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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not present yet . To my left is Cynthia Bertocci 

who is the executive analyst for the Board . We 

have our newest Board member, Frank Woodard, who 

is an engineer from Falmouth, Nancy Ziegler, an 

attorney from South 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 

from the 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 hearing will be conducted 

pursuant to the requirements of Title 40, Part 51 

of the Code of Federal Reaulations . 

Notice of today's hearing was 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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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 room for 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 

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against . If you plan to speak and have not 

already done so, please sign in now on 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 from the staff . Good 

morning . 

MR . CRAWFORD : Good morning, Chairman 

Lessard, Members of the Board, my name is Jeff 

Crawford . I'm with the Bureau of Air Quality . 

I'm here 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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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 CTG for 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 

from 3 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 on a 

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very hot day that they're using the hot mix and 

you take some pity on the guys doing this . That 

is, in fact, the most commonly used paving 

material and relatively few volatile organic 

compound emissions from it because it's a very 

heavy long chain hydrocarbon . Long chain 

hydrocarbons do not evaporate, they're not 

volatile, so, therefore, from an ozone air quality 

standpoint there are very few emissions . The 

other two categories of asphalt that are used or 

should I say formerly used were cutback asphalt 

which was traditionally used as a tack coat 

between old pavement and new paving 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 from about 25 to 45 percent volume or it 

depends on how much the operator puts in there 

with solvents which might range from kerosene, 

fuel oil or perhaps something a little more 

volatile . As you can guess, there are significant 

emissions from some 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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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 from everything 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 review and 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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identified Chapter 131 as a rule that needed to be 

updated because it no longer constituted a 

baseline RACK or Reasonably Available 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 new rule 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 New Jersey 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 

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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 why we've gone from percentages to 

six milliliter content . We're also proposing to 

extend the rule's applicability from public roads 

and highways to all paving operations . 

With that, I will be more than happy to 

entertain any questions you may have . 

CHAIRPERSON LESSARD : 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 

am testifying 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'm very familiar with testing 

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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 VOC by weight . Liquid 

asphalt as a raw material, the specifications 

allow up to one half of one percent of liquid 

asphalt itself, and that is determined by the thin 

film oven 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 

ASTM Method D-244, standard test method and 

practices for emulsified asphalts or AASHTO T-59 

standard method for the test of emulsified 

asphalts . I would also include ASTM Method D-402, 

standard test method for distillation of cutback 

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asphalt products or AASHTO T-78, standard method 

of tests for cutback asphalt products . The reason 

for this being is that both products would be 

tested the same way . They would both have the 

ability to have no more than six milliliters of 

distillate oil come off from a 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 low emission cutback 

ever being developed, 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 know that 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 ASTM or AASHTO standards, I 

feel that we are working on an equal footing for 

both products . Any questions? 

CHAIRPERSON LESSARD : Lissa . 

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MS . WIDOFF : I'm not 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 

know if I'm interpreting 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 follow your 

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 allow the use of 

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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 raw asphalt 

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 

film oven 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 from the AC . It's a very small 

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amount, and I feel that any asphalt that is used 

will have some, no matter how minute, 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 from raw asphalt 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 VOC standard 

would prevent a low VOC 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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and if one is to allow six milliliters of oil 

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'm just trying to follow it . 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 from Pike Industries . 

MR . CHORUS : Good morning . I'll by very 

brief because I'm not the expert, Roland is, but 

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as I was just listening to his testimony and I 

remembered hearing this from him last 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 number with one and you don't do it 

with the other,, then you'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 from Roland last night, and the 

other thing, I just wanted to go on record as a 

member of Pike Industries, I'm their environmental 

coordinator, that he knows what he's doing and if 

anybody needs any assistance, it would be from 

him . That's it . 

CHAIRPERSON LESSARD : Any questions for Mr . 

Chorus? Thank you very much . Those were the only 

two that we had listed on the form in 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 

from Lane Construction . Good morning . 

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MR . WELTON : Good morning, Chair Lessard, 

good morning, Members of the Board . As Susan 

mentioned, my name is Gene Welton and I'm an 

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'm not 

sure if it was addressed in an internal meeting, 

but I'd like to know production 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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asphalt so I don't know if 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 from what I'm told, 

we're in pretty good shape there . I'd just 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 hearing was concluded 

at 9 :38 a .m .) 

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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 am a 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 

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