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1 BEFORE THE POLLUTION CONTROL BOARD

2 OF THE STATE OF ILLINOIS

3 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

4 IN THE MATTER OF: )

5 GILBERTS CITGO, L.L.C., an Illinois)

6 corporation, )

7 Petitioner, )

8 vs. )PCB 01-50

9 IEPA, WHEELING TRUST & SAVINGS BANK)Water Well

10 A/K/A COLE-TAYLOR BANK, Successor ) Setback

11 Trustee, as Trustee under Trust ) Exception

12 No. 73-314 and JOHN CAPORASO as )

13 beneficiary of Trust No. 73-314, )

14 Respondents. )

15 The following is a transcript of

16 proceedings from the hearing held in the

17 above-entitled matter, taken stenographically by

18 ROSEMARIE LAMANTIA, CSR, a notary public within

19 and for the County of Cook and State of

20 Illinois, before BRADLEY P. HALLORAN, Hearing

21 Officer, at 100 South Third Street, Room 141,

22 Geneva, Illinois, on the 22nd day of November

23 2000, A.D., scheduled to commence at the hour of

24 10:00 a.m.

L.A. REPORTING, 312-419-9292

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

2 HEARING TAKEN BEFORE:

3 ILLINOIS POLLUTION CONTROL BOARD,

100 South Third Street

4 Geneva, Illinois 60134

BY: BRADLEY P. HALLORAN, HEARING OFFICER

7 MEMBERS OF THE ILLINOIS ENVIRONMENTAL PROTECTION

8 AGENCY AS WELL AS OTHER INTERESTED ENTITIES AND

9 AUDIENCE MEMBERS WERE PRESENT AT THE HEARING,

10 BUT NOT LISTED ON THIS APPEARANCE PAGE.

L.A. REPORTING, 312-419-9292

1 INDEX

2 DIANA LARSON

3 Direct Examination by Mr. Dwyer. 10, 29

4 Cross-Examination by Ms. Liu. 17

5 MICHAEL MAUDE, JR.

6 Direct Examination by Mr. Dwyer. 31

7 Cross-Examination by Ms. Liu. 32

8 EDWARD NEWBY

9 Direct Examinationby Mr. Dwyer. 40

10 Cross-Examination by Mr. Ewart. 46

11 Cross-Examination by Ms. Liu.49

12 LYNN E. DUNAWAY

13 Direct Examination by Mr. Ewart.51

14 Cross-Examination by Mr. Dwyer. 61

15 Cross-Examination by Ms. Liu. 63

17 EXHIBITS

18 MARKED RECEIVED

19 Petitioner's No. A . . 14 66

20 Petitioner's No. B . . 33 66

21 Petitioner's No. C . . 46 66

L.A. REPORTING, 312-419-9292

1 HEARING OFFICER HALLORAN: Good

2 morning. My name is Bradley Halloran. I'm a

3 hearing officer from the Illinois Pollution

4 Control Board and I'm assigned to this matter,

5 Gilbert Citgo, L.L.C. versus the Illinois

6 Environmental Protection Agency, Wheeling Trust

7 & Savings Bank, a/k/a Cole-Taylor Bank,

8 Successor Trustee, as Trustee under Trust

9 No. 73-314, and John Caporaso as beneficiary of

10 Trust No. 73-314, PCB No. 01-50.

11 Today is Wednesday, November 22nd.

12 It's approximately 10:00 a.m. I note, aside

13 from the representative parties of the Board,

14 there do not appear to be any members of the

15 public present today, is that correct?

16 This hearing is being held pursuant to

17 Section 106.604 of the Board's procedural rules

18 regarding water well setback exceptions. The

19 hearing will be governed in accordance with the

20 Illinois Environmental Protection Act and the

21 Board's procedural rules.

22 The hearing will be conducted in

23 accordance with Section 102, Subpart J of the

24 Board's procedural rules regarding regulatory

L.A. REPORTING, 312-419-9292

1 hearings.

2 I note that this hearing is intended

3 to develop a record for review for the petition

4 for water well setback exception by the entire

5 Pollution Control Board.

6 I will not be deciding this case.

7 It's the Pollution Control Board that will be

8 the ultimate decision maker. They will review

9 the transcript of this proceeding and the

10 remainder of the record and render a decision in

11 this matter. My job is to try and insure an

12 orderly hearing and present a clear record to

13 develop records so the Board can have all

14 necessary information before rendering a

15 decision.

16 I will rule on admission matters and

17 all non-dispositive motions.

18 After the hearing, the parties will

19 have an opportunity to submit post-hearing

20 briefs. These, too, will be considered by the

21 Board.

22 Before we begin with the continued

23 introduction of the parties, I would like to

24 introduce the staff members who are here on

L.A. REPORTING, 312-419-9292

1 behalf of the Board.

2 We have Alisa Liu, who is a member of

3 the technical unit of the Pollution Control

4 Board. And we Mr. John Knittle, the chief

5 hearing officer from the Pollution Control

6 Board.

7 Mr. Dwyer, would you like to introduce

8 yourself and your witnesses, please?

9 MR. DWYER: Sure.

10 My name is Timothy Dwyer. And I'm

11 here on behalf of the Petitioner, Gilberts Citgo

12 L.L.C.

13 We'll be calling on Diana Larson and

14 Mike Maude. Those are our preliminary

15 witnesses. We've identified two more in the

16 event that the Board or anyone else has any

17 questions, we'll certainly supply them.

18 HEARING OFFICER HALLORAN: Mr. Ewart?

19 MR. EWART: Yes. My name is Stephen

20 Ewart. I'm an attorney for the Illinois

21 Environmental Protection Agency and I have one

22 opinion witness, Lynn Dunaway, also with the

23 Illinois Environmental Protection Agency.

24 HEARING OFFICER HALLORAN: And you're

L.A. REPORTING, 312-419-9292

1 responding in this matter?

2 MR. EWART: Yes.

3 HEARING OFFICER HALLORAN: Are there

4 any representatives from either John Caporaso or

5 the Wheeling Trust & Savings Bank, a/k/a/

6 Cole-Taylor Bank present?

7 At this point, I'd like to do a little

8 housekeeping, and note for the record the

9 history of this petition, for clarification of

10 the Board, for the Board.

11 September 8th, 2000, Petitioner filed

12 the initial petition for water well setback

13 exception.

14 On September 21, the Board ordered the

15 Petitioner to filed an amended petition naming

16 Marsha Caporaso, who Petitioner stated was the

17 owner, as a Respondent.

18 On September 29th, 2000, Petitioner

19 filed an amended petition naming Marsha Caporaso

20 as an additional Respondent.

21 Through subsequent telephone status

22 conferences with the hearing officer and the

23 parties, it was learned that Marsha Caporaso was

24 not the owner, but the wife of the owner and

L.A. REPORTING, 312-419-9292

1 beneficiary of a land trust. The land trust is

2 held by Wheeling Trust & Savings. Marsha

3 Caporaso's husband name is John Caporaso.

4 With leave from the hearing officer,

5 the Petitioner filed a second amended petition,

6 naming additional Respondents, John Caporaso and

7 Wheeling Trust & Savings on October 23rd, 2000.

8 On October 26th, a notice of hearing

9 was filed with notice to all parties listed in

10 the second amended petition.

11 On November 16, we had a telephonic

12 pre-hearing conference. Ms. Caporaso who

13 represented that she is the attorney -- excuse

14 me, who is an attorney licensed in Illinois,

15 stated that she is representing her husband and

16 that she nor he, her husband, wished to partake

17 in the telephone status conference, nor would

18 they appear here today.

19 Finally, pursuant to Section 106.603,

20 there has been no responses other than a

21 response filed by the agency present before the

22 Board today.

23 With that said, Dr. Dwyer, would you

24 like to make an opening statement?

L.A. REPORTING, 312-419-9292

1 MR. DWYER: Just briefly, Mr. Hearing

2 Officer.

3 In the context of the background that

4 you supplied, the Petitioner is willing to rest

5 on its second amended petition. All the parties

6 have been served and noticed, and as you said,

7 the objector, who has pretty much initiated this

8 process, has failed to make any subsequent

9 objection or show up or otherwise participate in

10 the process.

11 It's my understanding this morning

12 that the technical staff for the Pollution

13 Control Board has some questions. So, I'm just

14 going to put on a couple of witnesses and go

15 through the background so that those questions

16 might be answered.

17 HEARING OFFICER HALLORAN: Terrific.

18 You may call your first witness.

19 MR. DWYER: I call Ms. Diana Larson.

20 (Witness sworn.)

21 DIANA S. LARSON,

22 called as a witness herein, having been first

23 duly sworn, was examined and testified as

24 follows:

L.A. REPORTING, 312-419-9292

1 DIRECT EXAMINATION

2 BY MR. DWYER:

3 Q. Ms. Larson, could you state your

4 occupation for the record?

5 A. I'm an attorney licensed to practice

6 in Illinois.

7 Q. Okay. And now what is your

8 participation in this process?

9 A. I initially represented the Petitioner

10 in the development process of the property.

11 Q. That is getting it zoned, getting all

12 of the permits approved, et cetera?

13 A. Yes, documents of records, making sure

14 the -- well, first of all, in the purchase of

15 the property and any subsequent development work

16 that was not being handled by the general

17 contractor.

18 Q. At some point in time, did a problem

19 arise with respect to, you know, the property --

20 drilling a well on the property?

21 A. Yes, it did.

22 Q. You want to go through that?

23 A. Sure.

24 I was contacted in early March by one

L.A. REPORTING, 312-419-9292

1 of my clients indicating that it had been

2 discovered that there was a well on the

3 adjoining property, which we had -- either had

4 or were in the process of purchasing.

5 At that time, I did a verbal title

6 search with Chicago Title Insurance Company here

7 in Geneva and was told that the property was in

8 a land trust but as is typical in a case like

9 that the title company also gave me the contact

10 person listed on the real estate tax bill, and

11 that was John Caporaso. I was also given a

12 card, and I am not sure where it came from, I

13 believe it might have been supplied by the

14 Village of Gilberts, indicating that the

15 property adjoining Petitioner's property was

16 owned by Abatron, Inc. The card indicates that

17 John Caporaso was the president of that company.

18 So, on Friday, March 10th, 2000, I contacted --

19 I attempted to contact John Caporaso by phone

20 and was connected to Marsha Caporaso.

21 Q. How did that connection come to pass?

22 A. I assumed that the receptionist said,

23 you know, John's calls are being taken by Mrs.

24 Caporaso.

L.A. REPORTING, 312-419-9292

1 Q. Okay.

2 A. In my subsequent conversations with

3 her, at no time did she indicate that she was

4 the -- she was not the party in interest. She

5 always led me to believe that she had authority

6 either as attorney or spouse or as other -- some

7 other representative of the company to act on

8 the behalf of Abatron, Inc.

9 Q. So you thought that you were dealing

10 with the actual representative of the property

11 in interest?

12 A. I did. And in Illinois, under the

13 Illinois Land Trust law, it's not unusual to

14 have direct contact with the party to whom the

15 tax bills are being mailed to as opposed to the

16 land trustee, which is a bank, which has no true

17 interest in the property other than holding the

18 title of record.

19 Q. Right.

20 A. And they -- had I contacted them they

21 would have referred me directly onto the

22 Caporasos.

23 Q. I believe that is correct.

24 How many conversations did you have

L.A. REPORTING, 312-419-9292

1 with Marsha Caporaso?

2 A. I had -- it would have been numerous

3 conversations or at least numerous attempts to

4 talk with her.

5 In our initial conversation, she

6 indicated that she needed more information about

7 Illinois law with respect to the statutes, at

8 which time I collected everything that I could

9 possibly find and sent it along to her, and in

10 addition appended a brief summary for her so

11 that it would expedite the process.

12 I did not review my billing records,

13 but I assume that I probably talked to her 8 to

14 10 times on the phone.

15 Q. Did you send her any correspondence?

16 A. I sent her -- yes, probably an equal

17 number of letters, faxes, to the extent that we

18 thought we had an agreement worked out in which

19 she would waive the requirements that we would

20 not be going through this process.

21 Q. Okay. What was that agreement?

22 A. It was an agreement that she would

23 waive the 200 foot requirement provided we

24 insure that if there was ever a problem that we

L.A. REPORTING, 312-419-9292

1 would supply water to her premises during the

2 pendency of that problem and also that we would

3 hook up at our expense her property to public

4 water once it was made available. It's

5 currently not available.

6 Q. Okay. Have you called anyone with

7 regard to the Village of Gilberts as to when

8 water will be available?

9 A. Yes, I spoke with the village

10 attorney, Mr. John Brakeway of Arnstein & Lehr,

11 who indicated that in his opinion water would be

12 available by fall of 2000, but he then referred

13 me to Anthony Malone of Robert Anderson &

14 Associates, which is the consulting engineer for

15 the Village of Gilberts. He provided a letter,

16 which I could submit into the record if you

17 would like, dated November 16th, 2000,

18 indicating that water is scheduled along the

19 West End Drive for late winter or spring of

20 2001.

21 MR. DWYER: Mr. Hearing Officer, I'd

22 like to submit that as Petitioner's Exhibit No.

23 A.

24 (Petitioner's No. A was submitted.)

L.A. REPORTING, 312-419-9292

1 BY MR. DWYER:

2 Q. What does that letter indicate, Ms.

3 Larson?

4 A. It indicates that the village is in

5 the process of designing water and wastewater

6 utilities for the Village of Gilberts,

7 construction of the trunk line utilities within

8 the east industrial park along West End Drive is

9 scheduled for late winter or spring of 2000.

10 The sizing of the lines would be appropriate for

11 the current proposed use of the property. It

12 also indicates that although -- that there are

13 no plans at this time to extend the mains within

14 the industrial park but any individual party

15 could do so and then recapture the cost from the

16 subsequent owners that hook up to that line.

17 Q. So, in other words, municipal water is

18 going to be available to not only the subject

19 property, the petition, but -- I should say Mr.

20 Caporaso's property subject to a recapture

21 agreement within a year?

22 A. That's my understanding according to

23 the letter that Mr. Malone provided.

24 Q. And you were willing to undertake the

L.A. REPORTING, 312-419-9292

1 recapture agreement to avoid this whole process

2 to appease Mr. Caporaso?

3 A. Yes, we were. We had made that offer

4 numerous times in writing and verbally by phone.

5 Q. And that was never consummated

6 obviously?

7 A. Correct. And I should indicate the

8 reason that was never consummated was after the

9 final document had been prepared as to the

10 agreement between the parties, Ms. Caporaso

11 requested on behalf of her corporation that my

12 clients guaranty that there would never be a

13 problem in perpetuity with respect to the

14 location of the well and the underground storage

15 tanks and as my client's attorney I advised them

16 that I would under no circumstances allow them

17 to sign such a document.

18 MR. DWYER: Thank you very much.

19 That's all I have.

20 HEARING OFFICER HALLORAN: Thank you.

21 Mr. Ewart, any questions?

22 MR. EWART: No, not at this time.

23 HEARING OFFICER HALLORAN: Ms. Liu.

24 MS. LIU: Good morning, Ms. Larson.

L.A. REPORTING, 312-419-9292

1 CROSS-EXAMINATION

2 BY MS. LIU:

3 Q. How responsive were the Caporasos to

4 your phone calls and your efforts?

5 A. To be honest, I would call them

6 difficult and uncooperative.

7 Q. Do you have anything at all from the

8 village that discusses their plans for

9 connecting up the municipal water supply to that

10 area or just the information from consulting

11 engineer that was --

12 A. The Village of Gilberts does not have

13 a staff engineer, they hire out and so the best

14 opinion one could obtain would be coming from

15 their consulting engineer, which was the

16 document which was just submitted.

17 Q. Do you have any idea how much it might

18 cost someone to hook up to the service once it

19 comes out that way?

20 A. I don't know that.

21 Q. Okay. Do you know how much it might

22 cost on a monthly basis for the water and sewer

23 to be used once that service is hooked up?

24 A. I don't know the answer to that

L.A. REPORTING, 312-419-9292

1 either. Perhaps there are other witnesses that

2 might have a better idea of what the actual cost

3 involved would be.

4 MR. DWYER: Who?

5 THE WITNESS: Mike.

6 MR. DWYER: Mike?

7 BY MS. LIU:

8 Q. Would you be the best person to

9 describe the negotiations that went on when

10 Gilberts Citgo was looking at the property and

11 deciding whether to buy it or not?

12 A. Yes.

13 Q. Do you know if the lending agency

14 required them to perform an environmental site

15 assessment before they would issue the loan?

16 A. I do not believe one was required.

17 That particular lender allows a questionnaire

18 form regarding environmental, which was probably

19 used in this instance.

20 Q. Was there a site -- or a walk-through

21 at all involved in that questionnaire?

22 A. Oh, there was -- in the purchase

23 process, there was substantial due diligence,

24 which is how we arrived upon the issue of the

L.A. REPORTING, 312-419-9292

1 well being within 200 feet of the proposed

2 location of the tanks.

3 Q. But you didn't discover the well until

4 after the property was actually purchased?

5 A. I'm not sure of the timing. Let me

6 get another file.

7 HEARING OFFICER HALLORAN: Off the

8 record, please.

9 (Off the record.)

10 HEARING OFFICER HALLORAN: Back on the

11 record.

12 THE WITNESS: I do not recall and I do

13 not have the purchase file with me. I believe

14 that the closing was in early April and that we

15 had decided to proceed even though we knew of

16 this issue because we, number 1, believed that

17 there was -- that the adjoining property was

18 owned by the party from whom we were purchasing

19 the lot that we were purchasing, in which case

20 it would have been an easy process to obtain a

21 waiver.

22 If we did have knowledge of the

23 different owner at the time that we closed, we

24 believe that we could act reasonably and provide

L.A. REPORTING, 312-419-9292

1 them with sufficient assurances that they would

2 give us the waiver.

3 BY MS. LIU:

4 Q. So you went into the purchase thinking

5 that the waiver was a likelihood possibility --

6 A. Not going to be a problem.

7 Q. When Gilberts Citgo was looking for a

8 piece of property to start their gas station,

9 what criteria did they look for in finding the

10 right site?

11 A. Typically a person looking at

12 developing a gas station would look at traffic

13 studies, easy access, location. There is at

14 this time no gas station in the Village of

15 Gilberts. They're very anxious for this

16 development to go through. We had the full

17 support of the village, which is not always the

18 case. Those are the types of things that we

19 would look for.

20 Q. Are there any other available or

21 suitable sites in that area that might serve the

22 same purpose?

23 A. No, this would be the -- probably the

24 best location in the village and there is

L.A. REPORTING, 312-419-9292

1 certainly strong support. I believe the Village

2 of Gilberts previously forwarded a letter

3 indicating their strong support for the

4 development at this site.

5 MR. DWYER: I believe that is Exhibit

6 4 to the petition.

7 MS. LIU: The letter?

8 MR. DWYER: Yes.

9 BY MS. LIU:

10 Q. And so what makes it the best site?

11 A. The access locations are extremely

12 important when you have semis turning in and out

13 of a facility regarding turn angles. Visibility

14 is important. This is a heavily traveled street

15 and it would be a very convenient location, you

16 know. It's not the type of development that you

17 would set one lot back. It has to be a frontage

18 parcel with easy access.

19 Q. If for some reason the Board were not

20 to accept the setback exception, could you

21 demonstrate in your post-hearing brief a

22 negative economic impact if, for instance,

23 Citgo, Gilberts, were to sell that property

24 to -- on their investment?

L.A. REPORTING, 312-419-9292

1 A. Could you restate your question?

2 MR. DWYER: Actually, I think we can

3 call another witness who would be able, much

4 better able to answer that.

5 MS. LIU: Who would that be?

6 MR. DWYER: That would be either Mr.

7 Maude or Mr. Hill or Mr. Newby, take your pick.

8 BY MS. LIU:

9 Q. Are you the best one to ask about the

10 well construction reports that were provided in

11 the petition?

12 A. No.

13 Q. No.

14 Mr. Newby would be?

15 A. I have no idea.

16 MR. DWYER: Hold on for a second.

17 (Off the record.)

18 HEARING OFFICER HALLORAN: Back on the

19 record. We've been off the record for

20 approximately five minutes, and Ms. Larson, the

21 witness, doesn't appear to be able to answer

22 some questions, but Ms. Liu, for the record,

23 will be asking the questions, if not only for

24 the mere purpose of clarification, it will give

L.A. REPORTING, 312-419-9292

1 guidance to the Petitioner to hopefully address

2 in his post-hearing brief.

3 Ms. Liu, would you like to ask your

4 questions?

5 BY MS. LIU:

6 Q. I'll continue, and you don't have to

7 answer if you don't know. I guess I would

8 appreciate it if somehow your team would address

9 on the water well construction reports which one

10 of the ones in the petition that were provided

11 correspond to this site in question. And if

12 none of those well reports correspond with that

13 site, would your team be willing to demonstrate

14 that the well is not a shallow well and that it

15 was constructed properly through the

16 certification by a professional geologist, if

17 the property owners were to grant you right of

18 entry to do that.

19 MR. DWYER: What do you mean if the

20 property owners --

21 MS. LIU: In order for a professional

22 geologist to inspect the well for depth and for

23 proper construction --

24 MR. DWYER: You're speaking about Ms.

L.A. REPORTING, 312-419-9292

1 Caporaso's well?

2 MS. LIU: Yes.

3 MR. DWYER: Well, she won't --

4 THE WITNESS: She won't appear. She

5 certainly won't let us on her property.

6 MR. DWYER: You don't understand.

7 We're here because of Ms. Caporaso. Okay. And

8 to get her consent to do this is impossible. We

9 can't even get her on the phone to participate

10 in the pre-hearing conference. That's just

11 impossible.

12 So, given the fact that that is

13 impossible, what do you want us to do?

14 MS. LIU: I guess in order to show

15 the Board that that is impossible, then I would

16 think that you should at least show a

17 notification that the request was made. If they

18 don't respond or if they deny it, then it will

19 be shown as something that was not reasonable.

20 THE WITNESS: Why is it our

21 responsibility to insure that she --

22 HEARING OFFICER HALLORAN: Off the

23 record.

24 MR. DWYER: Why? On the record.

L.A. REPORTING, 312-419-9292

1 HEARING OFFICER HALLORAN: Fine.

2 We're back on the record at the request of Mr.

3 Dwyer.

4 THE WITNESS: I do not understand why

5 it is our responsibility to make sure that she

6 properly constructed her well, when, to the best

7 of my knowledge, they are not drinking this

8 water. There is very little use at that

9 property and we've agreed that if there is a

10 problem, we will supply water to them and if

11 need be, hook it up.

12 MR. DWYER: During the pre-hearing

13 conference, Ms. Liu, Ms. Caporaso indicated that

14 they were not drinking the water on that site,

15 that it was not used for drinking water, that it

16 was used for washing hands and machinery. Is

17 that correct?

18 AUDIENCE: Empty warehouse.

19 HEARING OFFICER HALLORAN: Mr. Dwyer

20 is asking the questions, please.

21 MR. DWYER: Not withstanding that

22 fact, you want some paper from the Petitioner --

23 I guess my only fear is that, you know, we'll

24 write them a letter immediately asking them to

L.A. REPORTING, 312-419-9292

1 inspect their well and in view of the testimony

2 of Ms. Larson, from March until the present

3 time, they will not respond, so, how long do you

4 want us to wait before their lack of response

5 becomes unreasonable?

6 MS. LIU: That's not up to me.

7 MR. DWYER: Well, I guess you're

8 raising the issue, and, therefore, it is kind of

9 up to you.

10 MS. LIU: Well, actually the issue is

11 part of the requirements of obtaining a setback

12 exception is to show that if you don't receive a

13 waiver that the well is not shallow and that it

14 was constructed properly.

15 MR. DWYER: Right.

16 MS. LIU: I was just looking for

17 verification.

18 MR. DWYER: I understand.

19 MS. LIU: If you couldn't provide that

20 to at least explain or somehow --

21 MR. DWYER: Okay. Sure. No problem.

22 HEARING OFFICER HALLORAN: Point of

23 clarification, Mr. Dwyer stated the only reason

24 we're here is because Ms. Caporaso is the owner

L.A. REPORTING, 312-419-9292

1 of the well and was uncooperative, and, in fact,

2 the way I read Subpart F 106.604 the Board holds

3 at least one public hearing prior to granting

4 exception.

5 MR. DWYER: My point being, Mr.

6 Hearing Officer, that we would never had to go

7 through this entire process had they agreed to

8 the offer made to which is an exhibit in the

9 petition and testified by Mrs. Larson that we

10 would give them free water service, at our

11 expense, pursuant to the recapture agreement.

12 Ms. Liu asked a number of questions

13 about cost. Basically, we have said all along

14 to these people that we will pick up the entire

15 cost in exchange for a waiver and we'll give you

16 municipal water service and that was kind of

17 agreed to by them but never consummated in

18 writing, therefore, we are here, and that was

19 the point of my remark.

20 HEARING OFFICER HALLORAN: So noted.

21 Ms. Liu, would you like to ask anymore

22 questions for the record for point of

23 clarification for post-hearing briefs?

24 MS. LIU: I would like to hold off on

L.A. REPORTING, 312-419-9292

1 any additional questions for that purpose for

2 Mr. Maude.

3 HEARING OFFICER HALLORAN: Very well.

4 Mr. Dwyer, any redirect of Ms. Larson?

5 MS. LIU: But I would like to continue

6 asking Ms. Larson some questions, if I might.

7 HEARING OFFICER HALLORAN: Proceed.

8 MS. LIU: I'm sorry.

9 BY MS. LIU:

10 Q. I guess the question I might have is

11 obvious, do you have any idea why the Caporasos

12 have been so difficult when it seems like you've

13 offered them everything that was reasonable?

14 A. I -- in my opinion, I've been

15 practicing law for 20 years. I don't litigate.

16 I negotiate on a daily basis. And I would say

17 she is one of the two most difficult people I've

18 ever dealt with in my life. I don't know why.

19 Let me give you an example. I talked

20 to the attorney -- to a local attorney who had

21 purchased her property and after the closing it

22 took them a year before she moved out of her

23 house. That's the kind of person we are dealing

24 with.

L.A. REPORTING, 312-419-9292

1 Q. Any idea if she had anything to gain

2 by not --

3 A. I made one final attempt to reach her

4 after the most recent phone hearing and I

5 indicated to her that I could not understand why

6 she was taking the position she was taking, that

7 it seemed that if she would grant the waiver it

8 was a win/win situation, we could move on with

9 our development. This is costing us a lot of

10 money just to be sitting and not moving forward

11 with the development. In addition, we were

12 supplying many expenses to her, you know. I

13 said to her, I just do not understand why you

14 are taking the position you are and I want to

15 give you a final opportunity to work out

16 something and she said our conversation is

17 ended.

18 MS. LIU: All right. Thank you so

19 much for all of your help.

20 DIRECT EXAMINATION FURTHER

21 BY MR. DWYER:

22 Q. Ms. Larson, based upon your dealings

23 with Ms. Caporaso, what do you think the chances

24 are of her giving you access to her property to

L.A. REPORTING, 312-419-9292

1 examine her well with regard to shallowness and

2 construction?

3 A. I think she would take every

4 opportunity to lengthen the process, to make it

5 more difficult for us. If there were a way for

6 her to turn that into a two or three month

7 process, I'm sure she would do so and I cannot

8 explain her behavior.

9 Q. So you were going to give her water --

10 A. I think it is totally unreasonable to

11 ask us to even contact her any further. We'll

12 certainly cooperate.

13 Q. Just to recap, you were going to give

14 the adjacent property owner water service --

15 A. Correct.

16 Q. -- at your cost?

17 A. At our expense when the water was

18 available.

19 Q. And the water is going to be available

20 within the next year?

21 A. Correct.

22 MR. DWYER: That's all I have.

23 HEARING OFFICER HALLORAN: Any

24 questions, Mr. Ewart?

L.A. REPORTING, 312-419-9292

1 MR. EWART: None.

2 HEARING OFFICER HALLORAN: Ms. Liu?

3 MS. LIU: No, thank you.

4 HEARING OFFICER HALLORAN: You may

5 step down. Thank you.

6 MR. DWYER: Mike, you want to step up.

7 (Witness sworn.)

8 MICHAEL MAUDE, JR.,

9 called as a witness herein, having been first

10 duly sworn, was examined and testified as

11 follows:

12 DIRECT EXAMINATION

13 BY MR. DWYER:

14 Q. State your name and spell it for the

15 record.

16 A. Michael Maude, M-A-U-D-E, Junior.

17 Q. Mr. Maude, what is your participation

18 in this project?

19 A. My role is the design builder. I

20 obtain the contract to assist the Gilberts Citgo

21 L.L.C. group in obtaining all permits through

22 design engineering permitting, and I've also

23 performed negotiation feature functions, which

24 is the construction management of the project.

L.A. REPORTING, 312-419-9292

1 MR. DWYER: All right. That's all I

2 have. I may have my rebuttal after.

3 HEARING OFFICER HALLORAN: Mr. Ewart,

4 any questions?

5 MR. EWART: No.

6 HEARING OFFICER HALLORAN: Ms. Liu?

7 CROSS-EXAMINATION

8 BY MS. LIU:

9 Q. Good morning.

10 A. Good morning.

11 Q. Could you tell me how far the well is

12 from the property line in feet?

13 A. The Caporaso's well?

14 Q. Yes.

15 A. I do not have that exact information.

16 It's on the site plan.

17 (Off the record.)

18 HEARING OFFICER HALLORAN: Back on the

19 record. Mr. Maude is on the witness stand. Ms.

20 Liu.

21 BY MS. LIU:

22 Q. Could you tell me how far away the

23 well is from the property line?

24 A. It appears from the records that it is

L.A. REPORTING, 312-419-9292

1 about 17 feet.

2 MR. DWYER: Mr. Hearing Officer, I'm

3 going to mark the site utility plan, site

4 grading plan as Petitioner's Exhibit B. Where

5 do you want this?

6 (Petitioner's No. B was submitted.)

7 By MS. LIU:

8 Q. Actually, I was hoping perhaps that,

9 Mr. Maude, you could describe to us the

10 difficulty and constraints you have to deal with

11 on the engineering site plan in locating the

12 tanks and the truck traffic and as they would

13 come to fill up the tanks on your engineering

14 site plan?

15 A. Okay. There is only a few places that

16 the tanks could be located on the site. If I

17 could refer to this document, might be best

18 served to have another document, which has a

19 site circulation with the tanker driving on the

20 site.

21 MR. DWYER: This one?

22 Let the record reflect that Mr. Maude

23 is looking at Petitioner's Exhibit No. A in the

24 actual petition in terms of answering the

L.A. REPORTING, 312-419-9292

1 question.

2 THE WITNESS: The tanks have been

3 placed in what might be the southwest -- middle

4 southwest of the lot. And as you can see from

5 the tanker, to deposit fuel into the tanks is

6 loaded from the passenger side and the

7 circulation to get on and off the site, the

8 travel path, is indicated by this drawing, the

9 circulation tanker plan. And so the placement

10 of those tanks can best be placed in that travel

11 path. The tanker would not be able to circulate

12 in any other location on this site.

13 BY MS. LIU:

14 Q. Are the tanks these oblong, oval

15 shapes?

16 A. Yes, they are.

17 Q. And there appears to be basically two

18 tanks?

19 A. There are two tanks.

20 Q. Where would the associated piping for

21 those tanks run underneath the site?

22 A. The product piping that fuels the

23 dispensers is located on the product piping plan

24 that is provided to the state fire marshals

L.A. REPORTING, 312-419-9292

1 office. That information was provided and a

2 permit was issued by the office of the state

3 fire marshal in March of 2000. There may or may

4 not be a product piping plan associated with

5 this but one can be provided in the post-hearing

6 packet, if necessary.

7 Q. Could you do that for us, please?

8 A. Yes.

9 Q. Thank you.

10 Ms. Larson mentioned that you might be

11 a better one to answer my questions about cost

12 issues in bringing municipal water supply,

13 perhaps what a monthly service fee might be for

14 water and sewer. Do you know what that might

15 be?

16 A. As far as bringing monthly water

17 supply to provide water for the usage of -- to

18 make coffee and to flush the toilets and things

19 of that nature, I would not be able to provide

20 you with that estimate.

21 Q. In your post-hearing brief, is there

22 someone that could contact a municipal water

23 supply and ask them what the going rate is?

24 MR. DWYER: You know, I guess we could

L.A. REPORTING, 312-419-9292

1 try to. I would like to establish the relevance

2 though, first. I mean, we've offered to pay for

3 the objector's water service in total.

4 MS. LIU: Yes.

5 MR. DWYER: So are you getting to what

6 our hardship is?

7 MS. LIU: You also withdraw that offer

8 when it became clear that they were not willing

9 to issue the waiver, is that correct?

10 MR. DWYER: The offer has never been

11 withdrawn. No, that is absolutely not correct.

12 The offer -- if she was here today and agreed to

13 it, we would do it right now and walk. No, that

14 is not correct.

15 MS. LIU: If the exception goes

16 through the Board, will that offer still stand?

17 MR. DWYER: If the Board okays the

18 exception? No.

19 MS. LIU: Reason for my questioning

20 was in the exception procedure they ask you to

21 identify the impacts and those impacts are not

22 just simply environmental but they could be

23 economic as well. If you no longer offer to

24 provide water and sewer service, then there is

L.A. REPORTING, 312-419-9292

1 an economic impact there to those property

2 owners and I was just merely trying to establish

3 what that would be.

4 MR. DWYER: Okay. I don't -- I don't

5 really -- I don't really get the relevance, but

6 we'll certainly provide you with anything we

7 can.

8 HEARING OFFICER HALLORAN: And I think

9 it behooves us all to get all of the information

10 in front of the Board for a full and informed

11 decision, and as Mr. Dwyer, you know, the

12 petition has -- Petitioner does have the burden,

13 and in order for the Board to grant or deny the

14 exception, they do need all of the information.

15 So it would be appreciated if you could get all

16 of the information to all of the questions that

17 Ms. Liu has asked in the post-hearing briefs.

18 MR. DWYER: No, we'll certainly try,

19 it's just that, you know, what sewer and water

20 may or may not cost is, you know, inherently

21 speculative and it's based upon where you are,

22 subject to the recapture agreement.

23 I mean, if they're a mile and a half

24 away, it is going to cost more than if you're

L.A. REPORTING, 312-419-9292

1 two blocks away and I'm not really sure how you

2 go about quantifying that. Actually, I am sure,

3 you get an engineer, but I'm not going to hire

4 an engineer to quantify costs which aren't

5 relevant to the issue and that is my only

6 problem. So we'll do our best to get you

7 anything you need in that regard, short of

8 hiring an engineer.

9 BY MS. LIU:

10 Q. Mr. Maude, I have one more question

11 that I asked Ms. Larson and she thought that you

12 might be the better one to answer it. If for

13 some reason the Board did not grant the setback

14 exception, could Gilberts Citgo demonstrate a

15 negative return on their investment if they had

16 to sell that property because they weren't able

17 to develop it?

18 A. I would not be able to answer that

19 question.

20 Q. Okay. Do you know who might be better

21 able to address that in perhaps a post-hearing

22 brief?

23 A. I believe one of the owners might be

24 able to better address their investment. I'm

L.A. REPORTING, 312-419-9292

1 not aware of their investments that they've made

2 in the property or if it would be a negative

3 investment as a result of the hardship.

4 MR. DWYER: We will get your question

5 answered today after a short break, after Mr.

6 Maude is done testifying.

7 MS. LIU: Wonderful.

8 MR. DWYER: Okay.

9 MS. LIU: Thank you, Mr. Maude, very

10 much.

11 THE WITNESS: Thank you.

12 HEARING OFFICER HALLORAN: Mr. Dwyer,

13 any redirect?

14 MR. DWYER: No.

15 HEARING OFFICER HALLORAN: Mr. Ewart?

16 MR. EWART: No.

17 HEARING OFFICER HALLORAN: You may

18 step down. Thank you, sir.

19 MR. DWYER: Two minutes.

20 HEARING OFFICER HALLORAN: Sure, off

21 the record, please.

22 (Off the record.)

23 HEARING OFFICER HALLORAN: Back on the

24 record, it's approximately 11:00 o'clock. Mr.

L.A. REPORTING, 312-419-9292

1 Dwyer, you can call your next witness please.

2 MR. DWYER: Mr. Edward Newby.

3 (Witness sworn.)

4 EDWARD NEWBY,

5 called as a witness herein, having been first

6 duly sworn, was examined and testified as

7 follows:

8 DIRECT EXAMINATION

9 BY MR. DWYER:

10 Q. Please state your name and spell your

11 last name for the record.

12 A. Edward Newby, N-E-W-B-Y.

13 Q. And Mr. Newby, are you the owner of

14 this piece of property, subject of the matter

15 today?

16 A. We're the owner through an L.L.C.

17 company.

18 Q. Okay. So you're a part owner?

19 A. That's correct. I'm a member.

20 Q. Okay. How long have you owned the

21 property?

22 A. We concluded the purchase sometime in

23 the spring and I don't have the exact date on

24 it, but spring of this year.

L.A. REPORTING, 312-419-9292

1 Q. Okay. And what is your intention to

2 use the property for, sir?

3 A. Well, we bought it to put in a gas

4 station and convenience store.

5 Q. Are you going to own the gas station

6 and convenience store?

7 A. Yes.

8 Q. Okay. And since your purchase of

9 April, even prior to that and subsequent to that

10 time, have you put money into the property?

11 A. Well, we've put, of course, obviously,

12 the initial purchase price of the property and

13 then -- and I don't have hard numbers for you,

14 but subsequent fees for the village, for the

15 hearings that we went through and for legal

16 fees, et cetera, et cetera. And, obviously,

17 they're still accumulating. That we've probably

18 tossed somewhere between 50 and $75,000

19 additional monies over and above the purchase

20 price in this process.

21 Q. Does that include engineers,

22 architects, the whole package?

23 A. Oh, no. No. That is -- if you put in

24 what we would -- at this point in time, what we

L.A. REPORTING, 312-419-9292

1 have done with the engineering company, et

2 cetera, et cetera, as a matter of fact, I think

3 I was just presented with a bill that we have

4 approximately $50,000 additional funds over and

5 above that. If it went belly up, they're gone.

6 Q. $50,000 in funds over and above what,

7 sir?

8 A. Over and above the 50 to 75 estimate

9 that I just gave you.

10 Q. So in total is it your testimony that

11 you have 100 to 125,000 into this property for

12 purposes of constructing the gasoline station?

13 A. That is correct.

14 Q. Okay. In the event that you had to

15 sell it today, because the Board did not grant

16 you a water well exception, what kind of damages

17 could you sustain?

18 A. That is really hard to say because I

19 don't know what the exact sale price would be,

20 but I can only tell you that we could not

21 recover our money if we had to sell our

22 property, we just couldn't do it. We can't --

23 in other words, we can't get that much over what

24 we paid, anywhere near that much. If we -- I

L.A. REPORTING, 312-419-9292

1 would say that we could definitely cover our

2 land purchase price. The rest of it would be

3 gone.

4 Q. Well, now, if you didn't get the water

5 well exception, wouldn't that also devalue the

6 property?

7 A. Well, it would. It would in the fact

8 that you have to know the piece of property to

9 appreciate what we're trying to do here. It is

10 in an industrial area. There are no residential

11 areas around it. It is straight industrial

12 area. And we do know that that site has been

13 investigated by at least one other person that

14 is in the gas business and, in fact, has told us

15 that they would like to have put a gas station

16 there. So it's a site that is excellent for the

17 gas station and if we can't get the waiver, the

18 land has been sitting there vacant for several

19 years.

20 Q. Aside from the gas station, does it

21 have any other use?

22 A. Well, it could support obviously an

23 industrial building, but for an industrial site

24 you could never justify the cost of the land

L.A. REPORTING, 312-419-9292

1 that we paid for with the idea that we would be

2 able to put in a gas station and convenience

3 store. An industrial building just will not

4 generate enough income.

5 Q. Sir, could it support an industrial

6 building without a water well setback exception?

7 A. I believe -- I believe that they would

8 be able to put a well in on an industrial site,

9 is that --

10 Q. Exactly.

11 A. Exact -- I don't think it would be any

12 restriction of the well there.

13 Q. Right. So the answer is yes?

14 A. Yes.

15 Q. Okay. Now, what is the difference in

16 value in your estimation between an industrial

17 site, an industrial building on that site and

18 the gasoline station in terms of valuing the

19 property?

20 A. Well, I'm not in the development of

21 industrial buildings, but I think traditionally

22 buildings would probably be -- a square foot

23 site basis would probably be 50 percent at

24 least, no more than 50 percent of a commercial

L.A. REPORTING, 312-419-9292

1 site development, and probably even less, but

2 I -- I'm not -- I'm not an expert in industrial

3 development, but --

4 Q. What is the highest and best use for

5 this property, sir?

6 A. Well, the highest and best use is

7 without question what we're trying to do with

8 it, and it has prompted us to pay what we

9 considered at the time a premium price for the

10 property, but we felt that the business

11 opportunities were there and the village has

12 been very, very supportive of this project.

13 They need it, they want it and this problem that

14 we've run into here has literally set us back

15 months and months and months.

16 Q. Mr. Newby, are you familiar with this

17 letter?

18 A. Yes, I have a copy of this letter.

19 Q. What is the date of that letter?

20 A. March 15th.

21 Q. March 15?

22 A. 2000.

23 Q. And who is the letter from?

24 A. Well, it is from Diana Larson to Ms.

L.A. REPORTING, 312-419-9292

1 Caporaso.

2 Q. Can you read the last paragraph on

3 page 1 for the record, please, on page 1?

4 A. Page 1.

5 Okay. The environmental expert has

6 also suggested that we might consider relocating

7 your well 100 feet to the east on your property

8 at our expenses. I hesitate to suggest this as

9 it reminds me of the time my neighbor had asked

10 me to move my air conditioning unit to the other

11 side of my house because it was keeping him

12 awake at night. Nevertheless, it is a possible

13 solution, which we would consider.

14 MR. DWYER: I submit this letter as

15 Petitioner's No. C.

16 (Petitioner's No. C was submitted.)

17 I have no further questions.

18 HEARING OFFICER HALLORAN: Mr. Ewart,

19 any cross?

20 MR. EWART: Yes. Just a few.

21 CROSS-EXAMINATION

22 BY MR. EWART:

23 Q. Mr. Newby, in the petition on page 4,

24 it states that the purchase price was

L.A. REPORTING, 312-419-9292

1 approximately $135,000, is that accurate?

2 A. No. No. That -- and I thought that

3 had been changed. It was 287,000.

4 Q. 287,000.

5 Okay. Does that include fees and

6 legal fees?

7 A. No, that was the purchase price.

8 Q. That was just the purchase price?

9 A. That is the purchase price.

10 Q. It doesn't include the fees?

11 A. It doesn't include legal fees. It

12 doesn't include anything.

13 Q. It doesn't. Okay.

14 So approximately what did it cost you

15 to purchase that property?

16 A. Up to this date?

17 Q. Yes.

18 A. Up to this date, we could add another

19 $100,000 without question to it. That's where

20 we're at today.

21 Q. So you're saying 387,000

22 approximately?

23 A. Yes, and I believe it will probably be

24 higher than that when everything is totaled up,

L.A. REPORTING, 312-419-9292

1 but that is approximate. I mean, I'm

2 comfortable with that number. And if you give

3 me a little time, I can give you almost an

4 accurate number, but --

5 Q. Well, I think that in your

6 post-hearing brief you might want to crunch

7 those numbers to provide that for the Board.

8 A. Sure.

9 Q. The other issue is if this -- have you

10 ever looked into this property to see -- or your

11 expectancy, what is your expectancy with regard

12 to the percentage that you would -- in revenues

13 you would receive from gasoline versus

14 revenues -- versus the use of this property just

15 as a convenience store?

16 A. Oh, I don't even want to take a wag at

17 that because I would never even consider

18 building a convenient store without the

19 petroleum end of the business. It just is not

20 feasible. I mean, we never -- I would never do

21 that, so I can't answer your question.

22 MR. EWART: Thank you.

23 MR. DWYER: No further.

24 HEARING OFFICER HALLORAN: Ms. Liu.

L.A. REPORTING, 312-419-9292

1 CROSS-EXAMINATION

2 BY MS. LIU:

3 Q. Good morning, Mr. Newby.

4 A. Good morning.

5 Q. Did you make those investments above

6 and beyond the purchase price of the property,

7 the engineering and the permits and the legal

8 fees, under the reasonable belief that the well

9 owners would grant the waiver for you?

10 A. Yes, we did. And I will only -- I

11 will only tell you that Patterson Construction,

12 the general contractor on this, has stated that

13 they have -- they have built literally hundreds

14 of gas stations and some of them needed waivers,

15 several of them, I don't remember the exact

16 terminology that was used, but this is the first

17 time that they've ever had an adjoining lot

18 owner that refused to give a waiver.

19 MS. LIU: Thank you.

20 Mr. Hearing officer, I do have one

21 more question that I would like Mr. Dwyer to

22 answer in his post-hearing brief. Is now the

23 appropriate time to ask?

24 HEARING OFFICER HALLORAN: You can

L.A. REPORTING, 312-419-9292

1 state it for the record, the question.

2 MS. LIU: The water well exception

3 requirements under 415 ILCS 5/14.2F, there is

4 mention of whether or not the county or

5 municipality might have ordinances that are more

6 stringent than the prohibitions of the section I

7 mentioned. Is there some way that you can

8 affirm --

9 MR. DWYER: Absolutely. And the

10 answer is no, not in Gilberts county has an

11 ordinance more stringent than that provision,

12 but did you need letters from the county or how

13 would you want that verified?

14 MS. LIU: Your answer today was fine.

15 That's all I have.

16 HEARING OFFICER HALLORAN: Mr. Dwyer,

17 any redirect or -- any recross?

18 MR. EWART: No.

19 HEARING OFFICER HALLORAN: Thank you,

20 sir.

21 You may step down.

22 Any other witnesses, Mr. Dwyer?

23 MR. DWYER: No, not at this time. I

24 might have a rebuttal witness, depending on what

L.A. REPORTING, 312-419-9292

1 the agency says, but I don't think so.

2 HEARING OFFICER HALLORAN: The

3 Petitioner rests in his case in chief.

4 Mr. Ewart?

5 MR. EWART: Yes. I would like to call

6 Lynn Dunaway as a witness as part of our case as

7 Respondent.

8 (Witness sworn.)

9 LYNN E. DUNAWAY,

10 called as a witness herein, having been first

11 duly sworn, was examined and testified as

12 follows:

13 DIRECT EXAMINATION

14 BY MR. EWART:

15 Q. Would you state your name for the

16 record and spell your last name.

17 A. My name is Lynn Dunaway,

18 D-U-N-A-W-A-Y.

19 Q. Would you state your address for the

20 record?

21 A. I live at 1505 West Elm Street in

22 Taylorville, Illinois.

23 Q. Where are you employed?

24 A. Illinois Environmental Protection

L.A. REPORTING, 312-419-9292

1 Agency.

2 Q. And what branch of the Illinois

3 Environmental Protection Agency do you work

4 with?

5 A. I work in the Groundwater Section in

6 the Division of Public Water Supplies, Bureau of

7 Water.

8 Q. What is your title?

9 A. I'm an Environmental Protection

10 Specialist 3.

11 Q. Would you briefly describe your

12 educational background?

13 A. I've got a bachelor of science degree

14 in geology.

15 Q. Where and when?

16 A. 1982, Bradley University.

17 Q. Are you a licensed professional

18 geologist in Illinois?

19 A. Yes.

20 Q. How long have you worked with Illinois

21 Environmental Protection Agency?

22 A. Since February of 1988.

23 Q. In what capacity with the Illinois

24 Environmental Protection Agency?

L.A. REPORTING, 312-419-9292

1 A. I've always worked in the groundwater

2 section.

3 Q. Would you briefly describe your

4 current duties within the groundwater section at

5 Illinois Environmental Protection Agency?

6 A. I explain and work with the public

7 regulated parties, other government agencies

8 explaining aspects of the environmental

9 protection act, the regulations that were

10 adopted under the environmental protection acts

11 such as, you know, the setback zones, the

12 regulations that would apply within those

13 setback zones, other ground work quality

14 standards, reviewing geologic reports that are

15 prepared for sites and other special projects

16 that the agency may do that require geologic

17 expertise, and other -- write reports, general

18 reports that are required for us by either the

19 U.S. Environmental Protection Agency or within

20 the agency.

21 Q. How often do you deal with setback

22 waivers and exceptions?

23 A. Fairly often. We probably have --

24 well, we have an actual waiver needed roughly on

L.A. REPORTING, 312-419-9292

1 average once a month, they don't always come one

2 every month, but there has probably been eight

3 to ten a year since the act went, the portion of

4 the act that established the setback zones

5 require waivers went into effect. And I've

6 probably dealt with about 74 of those myself.

7 MR. EWART: Mr. Hearing Officer, I

8 offer this witness as an opinion witness, an

9 expert in the area of geology and hydrogeology

10 with regard to these proceedings forthcoming.

11 HEARING OFFICER HALLORAN: Any

12 objection?

13 MR. DWYER: None.

14 HEARING OFFICER HALLORAN: Okay.

15 BY MR. EWART:

16 Q. Would you describe the circumstances

17 with regard to Gilberts Citgo and the setback

18 waiver and how you got involved?

19 A. I believe it was in the early part of

20 April, I talked, I spoke with representatives

21 from Patrick Construction -- Patterson

22 Construction, excuse me. They were representing

23 Gilberts Citgo and we were discussing

24 requirements of the waiver. And I explained to

L.A. REPORTING, 312-419-9292

1 them the requirements, the type of information

2 they needed to submit to the agency and the

3 process that I would go through, the review

4 would have to do, and that the actual waiver

5 would be required from the well owner in order

6 to proceed with construction that the agency

7 grant concurrence, which essentially means that

8 the well owner has adequate information to make

9 an informed decision.

10 Q. Now, did you speak with the Petitioner

11 on this, representatives of the Petitioners?

12 A. Yes, I did.

13 Q. Did you speak with anyone else with

14 regard to this issue?

15 A. I also spoke with Marsha Caporaso, the

16 well owner, on at least one occasion, possibly

17 two, and she asked for additional information

18 regarding the waiver, and I believe I faxed her

19 pertinent sections from the Environmental

20 Protection Agency act for her review and I think

21 I had a follow-up call with her to see if she

22 had any questions regarding the -- to insure

23 that the fax had arrived and to see if she had

24 any follow-up questions.

L.A. REPORTING, 312-419-9292

1 Q. And approximately when was that

2 follow-up call?

3 A. It was the first part to mid-April,

4 first part of April to mid part of April.

5 Q. Had you had any other contact with the

6 Respondent regarding these issues?

7 A. No, not since that point.

8 Q. Please continue with your description

9 of the process, what, if anything, with regard

10 to the waiver requests?

11 A. In May we received a waiver request

12 for Gilberts Citgo, which I did review and I

13 found that based on my opinion of the

14 requirements of the act that they had supplied

15 adequate information and I recommended to our

16 division manager that, you know, he sign the

17 letter that I prepared stating that we did

18 concur with their waiver, and our division

19 manager, Roger Selburg did sign that letter and

20 we did send that to the Petitioner. Also I

21 notified the well owner that the concurrence had

22 been granted, Kane County public health.

23 Q. Have you had any further contact with

24 representatives of Gilberts Citgo?

L.A. REPORTING, 312-419-9292

1 A. Yes. They did -- they contacted me

2 several times. We have had telephone

3 conversations regarding the next step since they

4 did not seem to be able to get a waiver from the

5 well owner. And I said that they would need to

6 file an exception with the Board. And at a

7 later point when -- in the year, I believe it

8 may have been the first part of September, they

9 asked for an example exception. I said the

10 agency didn't have an example but I did provide

11 them with a copy of another exception that had

12 been presented to the Board with the subject

13 names blocked out so that there was no

14 identification of where the other exception took

15 place or who the parties involved were.

16 Q. Did you have occasion to review the

17 petition and the various amended petitions

18 including --

19 A. Yes, I did.

20 Q. -- the most recent one, the second

21 amended petition dated October 20th, 2000?

22 A. Yes.

23 Q. What opinion, if any, did you form

24 regarding the adequacy of the various petitions

L.A. REPORTING, 312-419-9292

1 especially with regard to the one dated

2 August -- or October 20th, 2000?

3 A. I felt like they had provided adequate

4 evidence that the petition -- that adequate

5 evidence was in the petition for it to be heard

6 by the Board.

7 Q. What do you feel about the

8 alternative, the maximum feasible alternative

9 setback zone?

10 A. I think they made an adequate

11 demonstration that given the requirements for

12 truck traffic and safety considerations, that

13 they used the maximum alternative setback from

14 the tanks to the well.

15 Q. You did look at the geologic well logs

16 that were attached to the petition?

17 A. Yes, I did.

18 Q. What, if anything, did you conclude

19 from those, the detailed well logs?

20 A. Well, there are a number of well logs

21 provided and some of them were -- because of the

22 requests, the way they requested from the state

23 water survey, some of them were not in the area,

24 I did identify some that were at least within

L.A. REPORTING, 312-419-9292

1 the general area where the site is located.

2 There are three streets, Cinder Drive, Solo

3 Drive, East Drive, and that is bordered by Route

4 72, based on the maps provided by the

5 Petitioner.

6 Q. Are these your copies?

7 A. I have the ones that are from the

8 general area with me up here.

9 Q. Oh, you do?

10 A. Yes.

11 Q. Is it true that in the record, as you

12 received it, that there was not a well log for

13 the subject well?

14 A. No, I didn't find one that was

15 identified as the subject well.

16 Q. But what wells are you discussing now

17 in your review?

18 A. Okay. The wells I'm discussing now

19 are wells that are located in the general

20 vicinity of the proposed site for the Gilberts

21 Citgo.

22 Q. What, if anything, do these well logs

23 detail with regard to the geologic conditions?

24 A. Generally speaking I did not have a

L.A. REPORTING, 312-419-9292

1 well log for the subject well. In general, most

2 of the wells in the area used the bedrock

3 aquifer, which is located some -- approximately

4 200 feet below ground surface. And the wells

5 that did penetrate that deep indicated that

6 there were relatively thick sequences of clay

7 between the surface and the bedrock aquifer.

8 The significance of clay is that it has a low

9 permeability, which inhibits the movement of

10 fluids, which would be either water or were

11 there a gasoline spill it would also inhibit the

12 movement of gasoline, because of the thick clay

13 layers, it seemed to be fairly widespread

14 through the area. I didn't think that the

15 proposed site posed a significant hazard to the

16 bedrock aquifer. There are a few wells in that

17 vicinity that appear to use shell, sand and

18 gravel, that they're interspersed throughout the

19 clays. Based on the well logs I have, those

20 sands and gravels don't seem to be very

21 continuous. So the shallow groundwater that

22 might be used for potable use within those sand

23 and gravel layers would not be wide spread. I

24 did, however, in some of the nearby logs there

L.A. REPORTING, 312-419-9292

1 were some shell, sand and gravels that I think

2 in my opinion if the shell, sand and gravel

3 occurred on the subject property or on the

4 proposed Citgo site, and if the subject well

5 utilized the same sand and gravel, there could

6 be a significant risk to the well were there a

7 release from the site, however, in their

8 petition the Petitioner has stated that they are

9 willing to monitor the subject well at least on

10 an annual basis and since they are willing to

11 monitor the subject well, I believe that removes

12 the significant hazard from consumption of that

13 water.

14 So in summary, I would not say that

15 the Gilberts Citgo poses a significant hazard to

16 the subject well or groundwater in general.

17 MR. EWART: Thank you. I don't have

18 any further questions at this point.

19 CROSS-EXAMINATION

20 BY MR. DWYER:

21 Q. You've done about 75 of these?

22 A. Yes.

23 Q. Have you ever seen a situation where

24 the petitioning party offers the objector to

L.A. REPORTING, 312-419-9292

1 move their well?

2 A. I think so.

3 Q. Okay. Have you ever seen a situation

4 where the petitioning party offers to bring

5 municipal water to the adjacent property?

6 A. Yes.

7 Q. Okay. Do you think those are

8 reasonable accommodations in this circumstance?

9 A. Yes.

10 Q. Okay. Can you think of anything above

11 that that the Petitioner could do to accommodate

12 the objector?

13 A. It would depend on the specific

14 circumstances at the site. I -- I think

15 providing alternative source of water to replace

16 the well is very reasonable. Any other

17 accommodations that might be reasonable would

18 have to be, you know, based on site specific

19 conditions.

20 MR. DWYER: Thank you very much.

21 HEARING OFFICER HALLORAN: Mr. Ewart,

22 any redirect?

23 MR. EWART: None.

24 HEARING OFFICER HALLORAN: Ms. Liu?

L.A. REPORTING, 312-419-9292

1 CROSS-EXAMINATION

2 BY MS. LIU:

3 Q. Good afternoon, Mr. Dunaway.

4 Can you think of any reason why the

5 state water survey would not have a well

6 construction report on file for this subject

7 well?

8 A. It's possible one was never turned

9 into the state water survey.

10 Q. Is there a requirement to do that

11 generally?

12 A. I believe there is, but it's not

13 always done.

14 MS. LIU: Thank you very much.

15 HEARING OFFICER HALLORAN: Any other

16 questions of this witness, Mr. Dunaway? Mr.

17 Dwyer? Mr. Ewart?

18 MR. EWART: No.

19 MR. DWYER: No.

20 HEARING OFFICER HALLORAN: You may

21 step down. Thank you.

22 You don't have any other witnesses?

23 MR. EWART: None.

24 HEARING OFFICER HALLORAN: Do you have

L.A. REPORTING, 312-419-9292

1 any rebuttal?

2 MR. DWYER: No.

3 HEARING OFFICER HALLORAN: For the

4 record, I want to note that there are no members

5 of the public here.

6 Also, for the record, I want to note

7 that representatives -- there are no

8 representatives of Wheeling Trust & Savings

9 Bank, the other Respondent, nor John Caporaso,

10 they're not in the room.

11 With that said, Mr. Dwyer, would you

12 like to make a closing?

13 MR. DWYER: No. Especially if we're

14 going to do a post-hearing brief, if that is

15 what you're looking for.

16 HEARING OFFICER HALLORAN: Mr. Ewart,

17 any closing?

18 MR. EWART: No closing.

19 (Off the record.)

20 HEARING OFFICER HALLORAN: We've been

21 off the record discussing post-hearing briefs.

22 The record appears to be -- the transcript will

23 be ready on December 6. Mr. Dwyer and Mr. Ewart

24 stated that their post-hearing briefs will be

L.A. REPORTING, 312-419-9292

1 filed by December 6th and I'm going to allow a

2 seven day window for public comment, so, the

3 briefs, post-hearing briefs are due December 6th

4 from the Petitioner and the Respondent, and

5 public comments will be due on December 13th.

6 Also, for the record, Mr. Dwyer, have

7 you moved these exhibits into evidence?

8 MR. DWYER: I thought I did.

9 HEARING OFFICER HALLORAN: Petitioner

10 Exhibit A, Exhibit B, Petitioner's Exhibit C?

11 MR. DWYER: If I didn't, I'd like to

12 now.

13 HEARING OFFICER HALLORAN: Any

14 objection, Mr. Ewart?

15 MR. EWART: None.

16 HEARING OFFICER HALLORAN: For the

17 record, Petitioner's Exhibit A is a letter dated

18 November 16th, year 2000, to Ms. Larson from

19 Anthony Malone, the hired project engineer from

20 the Village of Gilberts.

21 Exhibit B is a blow up of the site

22 grading plan and the site utility plan

23 comprising of four documents.

24 Petitioner's Exhibit C is a March

L.A. REPORTING, 312-419-9292

1 15th, 2000, letter to Ms. Caporaso from Ms.

2 Larson.

3 (Petitioner's No. A, B & C

4 were received into evidence.)

5 HEARING OFFICER HALLORAN: With that

6 said, we'll break for lunch. We'll be back here

7 approximately 1:00 o'clock, in case there are

8 any members of the public that show up.

9 Thank you.

10 MR. DWYER: If there aren't any

11 members of the public that show up, do we still

12 have public comment period for a week after the

13 date?

14 HEARING OFFICER HALLORAN: We do.

15 MR. DWYER: Better safe than sorry.

16 (Lunch recess.)

17 HEARING OFFICER HALLORAN: Back on the

18 record.

19 Good afternoon. We're back on the

20 record in case of Pollution Control Board 01-50.

21 There being no members of the public present,

22 this concludes the hearing in this matter, and I

23 might add that it is approximately 1:00 o'clock

24 in the afternoon, November 22, year 2000.

L.A. REPORTING, 312-419-9292

1 I want to thank you all for appearing

2 here today, and have a nice trip home. Thank

3 you.

L.A. REPORTING, 312-419-9292

1 STATE OF ILLINOIS )

)SS:

2 COUNTY OF DU PAGE )

3 I, ROSEMARIE LAMANTIA, being first duly

4 sworn, on oath says that she is a court reporter

5 doing business in the City of Chicago; that she

6 reported in shorthand the proceedings given at

7 the taking of said hearing, and that the

8 foregoing is a true and correct transcript of

9 her shorthand notes so taken as aforesaid, and

10 contains all the proceedings given at said

11 hearing.

13 ------------------------------

14 ROSEMARIE LA MANTIA, CSR

License No. 84 - 2661

16 Subscribed and sworn to before me

this day of , 2000.

------------------------------------

18 Notary Public

L.A. REPORTING, 312-419-9292