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ILLINOIS POLLUTION CONTROL BOARD
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AMERICAN BOTTOM CONSERVANCY )
and SIERRA CLUB,
)
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)
Plaintiffs,
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)
PCB 07-84
vs.
)
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)
CITY OF MADISON, ILLINOIS )
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and WASTE MANAGEMENT OF
)
ILLINOIS, INC.,
)
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)
Defendants.
)
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RECORD OF HEARING
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August 23, 2007
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Opening Comments by Hearing Officer Webb: Page 4
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Opening Statement by Petitioners: Page 6
Opening Statement by Respondent, Waste Management: Page 6
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Direct Examination of Kathy Andria by Petitioners: Page 8
Cross Examination of Kathy Andria by Waste Management:
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Page 31
Cross Examination of Kathy Andria by City of Madison:
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Page 82
Re-Direct Examination of Kathy Andria by Petitioners:
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Page 121
Re-Cross Examination of Kathy Andria by Waste Management:
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Page 125
Re-Cross Examination of Kathy Andria by City of Madison:
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Page 132
Second Re-Cross Examination of Kathy Andria by Waste
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Management: Page 134
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Reported by Holly A. McCullough, C.S.R., C.C.R., R.P.R.
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Keefe Reporting Company
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ILLINOIS POLLUTION CONTROL BOARD
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AMERICAN BOTTOM CONSERVANCY )
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and SIERRA CLUB,
)
)
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Plaintiffs,
)
)
PCB 07-87
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vs.
)
)
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CITY OF MADISON, ILLINOIS )
and WASTE MANAGE OF
)
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ILLINOIS, INC.,
)
)
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Defendants.
)
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APPEARANCES:
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For Petitioners:
Great Rivers Environmental Law Center
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by: Bruce A. Morrison
705 Olive Street, Suite 614
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St. Louis, MO 63101-2208
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For Respondent, City of Madison:
Callis, Papa, Hale, Szewczyk, Rongey & Danzinger, P.C.
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by: John Papa
1326 Niedringhaus Avenue
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Granite City, IL 62040
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For Respondent, Waste Management:
Pedersen & Houpt
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by: Donald J. Moran
161 North Clark Street, Suite 3100
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Chicago, IL 60601-3224
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Also for Respondent, Waste Management:
Livingstone Law Firm
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by: Penni S. Livingston
5701 Perrin Road
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Fairview Heights, IL 62208
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INDEX OF EXHIBITS:
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ABC/Andria Exhibit No. 1 -- Page 133, 136, 139-143
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ABC/Andria Exhibit No. 2 -- Page 136, 139-143
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ABC/Andria Exhibit No. 3 -- Page 136, 139-143
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ABC/Andria Exhibit No. 4 -- Page 136, 139-143
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ABC/Andria Exhibit No. 5 -- Page 136, 139-143
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ABC/Andria Exhibit No. 6 -- Page 136, 139-143
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ABC/Andria Exhibit No. 7 -- Page 136, 139-143
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ABC Exhibit No. 8 -- Page 136, 139-143
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ABC Exhibit No. 9 -- Page 137, 142-143
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ABC Exhibit No. 10 -- Page 137, 143
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ABC Exhibit No. 11 -- Page 27-29, 101-103, 105-107, 121-123,
137
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WMII Exhibit No. 1 -- Page 144-145
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City of Madison Exhibit No. 1 -- Page 95, 145
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City of Madison Exhibit No. 2 -- Page 145-146
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(Exhibits were marked for identification by respective
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parties and were retained by the Hearing Officer.)
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BE IT KNOWN that a record of hearing was made on August
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23, 2007, at the Madison County Administration Building,
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County Board Room 203, 157 North Main Street, Edwardsville,
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Illinois, before Holly A. McCullough, an Illinois Certified
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Shorthand Reporter, a Missouri Certified Court Reporter, a
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Registered Professional Reporter and a Notary Public. Also,
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it is stipulated and agreed by and between counsel for
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Plaintiff and counsel for Defendant that this record may be
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taken in stenotype by Holly A. McCullough and thereafter
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transcribed into typewriting.
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HEARING OFFICER WEBB: Good morning. My name is Carol
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Webb. I'm a Hearing Officer with the Pollution Control
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Board. This is PCB 07-84, American Bottom Conservancy and
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Sierra Club versus City of Madison and Waste Management of
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Illinois. It is August 23rd, 2007, and we are beginning at
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9:00 a.m.
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At issue in this case is Waste Management's application
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to expand the Milam recycling and disposal facility located
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in Fairmont City to a site called North Milam located in the
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City of Madison. Petitioner appeals on the grounds that the
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City's proceedings were not fundamentally fair and that the
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City's approval of the siting application was against the
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manifest weight of the evidence. The decision deadline is
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November 15th, 2007.
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You should note that it is the Pollution Control Board
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and not me that will make the final decision in this case.
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My purpose is to conduct the hearing in a neutral and orderly
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manner so that we have a clear record of the proceedings. I
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will also assess the credibility of any witnesses on the
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record at the end of the hearing.
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I'll note for the record that we do have a couple
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members of the public present. The procedural rules and the
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Act provide that members of the public shall be allowed to
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speak or submit written statements at hearing. I will call
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for any statements from members of the public at the
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conclusion of the proceeding.
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This hearing was noticed pursuant to the Act and the
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Board's rules and will be conducted pursuant to Sections
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101.600 through 101.632 of the Board's procedural rules.
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At this time, I would like to ask the parties to please
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make their appearances on the record.
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MR. MORRISON: Bruce A. Morrison, attorney for both
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Petitioners, American Bottom Conservancy and Sierra Club.
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MR. MORAN: Donald Moran on behalf Waste Management of
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Illinois, Inc.
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MR. PAPA: John C. Papa on behalf of the City of
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Madison.
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MS. LIVINGSTON: And Penni Livingston on behalf of Waste
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Management of Illinois.
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HEARING OFFICER WEBB: Thank you. Are there any
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preliminary matters anyone wishes to discuss on the record?
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(No response.)
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HEARING OFFICER WEBB: "No"? Okay. Would the
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Petitioners like to give an opening statement?
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MR. MORRISON: Well, I've got a few sentences.
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Petitioner's case will be based largely on the record made
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before the City of Madison. Part of the case, though, is
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whether Madison conducted the proceedings in a fundamentally
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fair manner. Miss Kathy Andria will testify on behalf of
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both Petitioners that the proceedings that Madison conducted
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were not fundamentally fair for reasons in the pleadings. At
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the hearing, she was prohibited from questioning Waste
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Management's witnesses about archaeological issues at the
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proposed North Milam site. She was prohibited from
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questioning Waste Management's witnesses about wetland issues
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of the site. That will be some of the proof that will be
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presented.
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HEARING OFFICER WEBB: Thank you. Would the Respondents
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like to make an opening statement?
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MR. MORAN: Yes, just briefly. The proceedings held by
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the City of Madison in all respects supported what the
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applicable rules providing for fundamental fairness of a
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siting hearing for local government bodies. Applicable case
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law both from the Appellate Court and the Pollution Control
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Board itself make clear that the right of fundamental
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fairness of any participant has relates to the right to
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present a case, to present evidence, in fact, cross examine
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witnesses, and to obtain impartial rulings on the evidence.
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The evidence that will be presented here will amply
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demonstrate that Miss Andria, American Bottom Conservancy and
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Sierra Club had full and ample opportunity to present
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whatever case, whatever evidence they believed was
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appropriate, cross examine any witnesses on matters that were
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pertinent and relevant to the proceeding here. The
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contention that the American Bottom Conservancy and Sierra
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Club were unable to question any witnesses on relevant
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matters will seem to be unfounded, and that some of the areas
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that were desired to be acquired about were, in fact, matters
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of no relevancy for a siting.
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So, when all the evidence is presented on these issues,
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it will be eminently clear that fundamental fairness was
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provided these Petitioners, and that the decision ultimately
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of the City of Madison ought to be affirmed. Thank you.
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HEARING OFFICER WEBB: Thank you. Does the City have
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any?
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MR. PAPA: City will waive them.
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HEARING OFFICER WEBB: Thank you. Mr. Morrison, you may
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call your first witness.
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MR. MORRISON: Thank you, Miss Webb. And before I
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forget here, as part of the Plaintiffs' case -- this may not
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be necessary, but I know there's a case on -- a record made
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and a record has been filed with the Illinois Pollution
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Control Board. I'd like to move that that record be part --
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be entered into evidence, if that is necessary.
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HEARING OFFICER WEBB: It is not necessary.
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MR. MORRISON: I appreciate it. Thank you. And,
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Mrs. Kathy Andria, would you please take the stand.
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KATHY ANDRIA, called as a witness, is sworn in under
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oath.
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D I R E C T E X A M I N A T I O N
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by Mr. Bruce A. Morrison:
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Q. Please state your name.
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A. Kathy Andria.
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Q. And what is your position with American Bottom
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Conservancy and Sierra Club?
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A. I am president.
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Q. Is American Bottom Conservancy an Illinois
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corporation in good standing?
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A. Yes.
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Q. Would you please tell us about the mission or the
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objectives of American Bottom Conservancy?
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A. American Bottom Conservancy was formed to
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protect, preserve, enhance, restore and promote the cultural
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and natural resources of the American Bottom floodplain and
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to educate the public as to the importance of those
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resources.
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Q. Does American Bottom Conservancy have any
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interest in the preservation of Horseshoe Lake State Park?
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A. Yes. American Bottom Conservancy is -- has
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worked to conserve the wetlands of the American Bottom, to
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protect Horseshoe Lake, to protect water sources, water
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supply and also to increase the amount of land that's
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preserved and to keep it from development.
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Q. Does American Bottom Conservancy as part of its
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mission or objectives have any interest in preserving or
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enhancing the Cahokia Mounds world heritage site?
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A. American Bottom Conservancy has been working
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since its beginning to preserve the cultural resources,
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archaeological resources in the American Bottom. We are
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working currently to establish a trail that links Cahokia
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Mounds with the Eads Bridge that goes along the mounds
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through East St. Louis, and we've worked on various sites
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throughout the American Bottom to keep them from developing,
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to make sure that the integrity of the resources and the
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Native Americans' heritage is protected.
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Q. And what work has American Bottom Conservancy
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done in connection with the siting of landfills in American
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Bottom?
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A. I'm sorry. You're going to have to speak louder,
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Mr. Morrison.
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Q. What work has American Bottom Conservancy done
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over the years in connection with the siting of landfills?
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A. We participated in various landfill siting
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decisions and permitting decisions with regard to the
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landfill that's in the middle of the Mississippi River, Shoto
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(phonetic) Island, which is a Waste management landfill, with
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regard to the expansion of the Milam landfill in Fairmont
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City, which is the existing landfill, and with regard to
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encroachment into wetlands through the 404 Clean Water Act
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permitting process.
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Q. Okay. Now, tell me, does American Bottom
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Conservancy at this point have a physical office address?
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A. No, we do not.
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Q. Are you using a post office box as your address?
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A. Yes, we are.
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Q. Have you taken steps to change that physical
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office address?
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A. We are registered -- It was brought to our
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attention that we are existing -- the address of the
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registered agent was wrong in the deposition. So, we've
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corrected that. We have an office registered agent now at
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402 East Main in Mascoutah. Yes, we would love to have a
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physical office.
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Q. And that is something that you addressed just
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yesterday, I believe?
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A. That's correct.
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Q. Now, does American Bottom Conservancy have any
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members?
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A. Yes. We have about 110 or so members.
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Q. Are you a member of American Bottom Conservancy?
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A. Yes, I am.
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Q. Do you visit the area in the vicinity of the
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proposed North Milam landfill?
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A. Yes, I do.
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Q. Where do you go?
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A. I visit Horseshoe Lake at least once a week on
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average, sometimes more, sometimes less. I visit Eagle Park
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Marsh, which is not far from there. It's on the Illinois
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natural inventory's list. I drive by the landfill
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frequently. So, I'm in the area, and I also visit Canteen
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Lake, and I keep an eye on wetlands in that area and report
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anything to the Corps of Engineers that I think is an
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encroachment on wetlands.
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Q. And how often do you make these visits?
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A. I am in that area usually several times a week.
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Q. During any of these visits, are you with other
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members of American Bottom Conservancy at any time?
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A. Sometimes.
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Q. How about, are you with any members of Sierra
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Club?
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A. Sometimes.
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Q. Is American Bottom Conservancy concerned about
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the impacts of the proposed North Milam landfill?
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A. Extremely concerned, yes.
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Q. What are the concerns for you?
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A. It is -- I'm sorry. Did you ask me the new
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landfill?
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Q. The proposed North Milam landfill.
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A. Yes, we're concerned, first, that it's located in
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wetlands, that it's located in an archaeologically important
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area, that it's located about 2,000 feet from Horseshoe Lake,
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and that it's located within I think 2,100 feet of the
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Cahokia Mounds world heritage site and national historic
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landmark boundaries.
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Q. Backing up for a few questions back, when did you
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last check the status of American Bottom Conservancy with the
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Illinois Secretary of State as far as whether the corporation
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is in good standing?
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A. This morning.
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Q. And what did the Secretary of State's records
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show?
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A. It said that we were in good standing.
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Q. Now, tell me, do you have any positions with
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Sierra Club?
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A. Yes. I'm conservation chair for the Kaskaskia
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group, I'm chair of the state chapter for the waste land
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recycling committee, I'm on the clean air campaign for the
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state, and I'm also on Midwest coal group, and I'm on the
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water quantity committee.
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Q. Is Sierra Club a corporation in good standing?
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A. Yes, it is.
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Q. Can you tell me something briefly about Sierra
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Club's missions and objectives as they relate to the
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floodplain in the area?
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A. Well, the mission of Sierra Club is to explore,
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enjoy and protect the planet. It's worked for many years on
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work on the floodplain issues and protecting the rivers, the
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impacts to the river and on -- in the American Bottom and in
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the rivers leading to the Mississippi River.
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Q. And has its work in particular dealt with the
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Mississippi River -- part of the Mississippi River in the
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vicinity where the proposed North Milam facility is proposed
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to be located?
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A. Yes. There's a committee -- a national committee
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that addresses river and floodplain issues, and the local
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groups have worked on wetlands and floodplain issues.
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Q. Does the Sierra Club have members?
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A. Yes.
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Q. About how many of them in Illinois?
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A. In Illinois, it's about 26,000. In the national,
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it's, according to the web site, 1.7 million, and locally
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there's perhaps 1,500 local members in the Metro East in two
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groups, and then there are many more across the river in the
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Eastern Missouri group.
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Q. Are you a member of Sierra Club?
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A. Yes, I am.
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Q. And did any members of Sierra Club participate in
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the public hearing before the City of Madison?
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A. Yes, they did.
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Q. Did any members of American Bottom Conservancy
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participate in the public hearing before the City of Madison?
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A. Yes, they did.
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Q. Let me switch gears on you and get away from
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standing issues, start talking about fundamental fairness
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issues. Now, are you familiar with an ordinance of the City
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of Madison relating to conducting a public hearing for siting
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landfills?
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A. Yes, I am.
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Q. When did you first learn that there was a City
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ordinance governing the procedures for a public hearing for
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siting a landfill or a pollution control facility?
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A. On the Monday before the hearing. I think it's
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December 18th.
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Q. And how was it that you came to learn about the
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ordinance?
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A. I visited the office of the City of Madison, City
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Hall, the clerk, and I saw the ordinance.
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Q. Okay. What efforts did you make to obtain a copy
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of that ordinance?
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A. I asked for a copy of the ordinance, to have a
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copy of the ordinance.
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Q. Okay. And were you charged for a copy of the
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ordinance?
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A. I was -- They quoted me a figure of I believe it
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was $5 for the first so many pages, and then it was a dollar
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a page afterwards, and I asked if that was what they charged
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for everything that they did, and they said, "Yes." I said,
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"Even if somebody gets one piece of paper, it's $5?" Then I
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asked if there was a copy at the local library, because my
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memory from the library is that they charged, I think, a
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quarter a page. The woman said, "No." The person behind the
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counter said, "No," that there wasn't one.
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MEMBER OF THE PUBLIC: Can you speak up? It's hard to
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hear.
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A. Is this better? I'm sorry.
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(Member of public nods head.)
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A. The person behind the desk said, "No," there was
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not a copy at the library, and she went to a telephone, and
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she called someone and spent a little time on the phone
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discussing my request, and that -- and I didn't hear her
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conversation, but I know that she was talking to someone on
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the phone about the request.
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BY MR. MORRISON:
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Q. Did you consider the charge that Waste Management
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sought to impose for that ordinance excessive?
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MR. MORAN: Objection. I don't think Waste Management
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is charging for records.
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MR. MORRISON: I'm sorry.
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MR. PAPA: The City would acknowledge that the City was
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making the charges.
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HEARING OFFICER WEBB: Yes. Would you like to re-ask
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the question?
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MR. MORRISON: I would.
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BY MR. MORRISON:
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Q. Before I ask it, I think probably Waste
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Management deserves a better plug than that because during
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the course of these proceedings, Waste Management had given
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you documents relating to this siting without charge; right?
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A. They absolutely did.
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Q. They've been very good in that respect?
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A. Yes, they have.
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Q. In particular, Miss Livingston and Joe Durako
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over there?
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A. Yes.
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MR. MORRISON: I'm not to here bash --back to the City
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bash.
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MR. PAPA: None taken, sir.
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BY MR. MORRISON:
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Q. So, the charge that the City of Madison sought to
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impose, did you consider that to be excessive?
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A. Yes. It's my understanding to get documents --
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for the public to get documents, they're supposed to be
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charged the cost of the production, and local Kinko's, etc.,
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Casey's charge from 7 cents to 10 cents to 15 cents to a
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quarter, and I think a dollar a page is excessive.
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Q. Why does that make a difference to you that it's
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excessive?
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A. Because I and our organization have limited
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funds.
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Q. Do you charge members anything to be members of
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for American Bottom Conservancy?
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A. No. I also think it's unfair for the general
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public, not just for me, citizens of Madison.
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Q. Now, in your view, before the hearing before the
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City of Madison, did you receive any information that you
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considered to be inaccurate concerning how the hearing would
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be conducted?
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A. I'm sorry. Would you repeat that?
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Q. Before the hearing the City of Madison held, did
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you receive any information from anyone with the City that
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you considered to be not accurate concerning how the hearing
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was to be held?
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A. Yes. I called on Friday the week before the
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hearing. I think the hearing was on December 21st and
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December 22nd, and I called that Friday to the City Hall, and
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I asked if there were -- if there was anything in place that
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I have to register or what were the rules with regard to the
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hearing.
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Q. Okay. And what were you told?
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A. It was a gentleman who answered the phone, and he
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said, "No. Just show up."
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Q. But then after that, you took some steps to
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obtain -- well, seek out a City ordinance?
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A. Well, before I did that, I asked how the hearing
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was going to be conducted, who was going to be testifying, if
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there were any information about that, and he directed me to
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call the City attorney, John Papa, and gave me a phone number
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to call.
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Q. Now, jumping ahead a couple of days to when you
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went to City Hall to get a copy or saw that there was an
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ordinance that the City of Madison had, at what point did you
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review that ordinance?
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A. I'm sorry. At what point --
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Q. Did you at some point review the ordinance that
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you obtained from the City of Madison?
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A. I looked at it. I didn't read it all right then,
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but I scanned it right then.
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Q. Okay. And what did you learn after reading that
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ordinance about how the proceedings were to be conducted?
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A. That I was supposed to have everything --
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anything I was going to submit, any reports, a list of
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witnesses, all of these -- the things that are contained in
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one of those paragraphs, I was supposed to have done that the
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previous Friday.
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Q. So, after reading that ordinance, did that have
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any effect on how you conducted your portion of the
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proceedings before the City of Madison?
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A. I'm sorry. I'm having trouble hearing.
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Q. So, after reading that ordinance, did that have
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any effect on the manner in which you dealt with the facts
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and proceeded before the City of Madison at a public hearing?
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A. Well, I had been hoping to do some -- have some
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information and questions and perhaps a report on the
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archaeology of the site and to be able -- I had gotten a copy
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of some archaeology papers from Miss Livingston -- well,
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actually, from Mr. Durako, and that interfered -- since I was
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not going to be able to present anything or since we weren't
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going to be able to have reports or anything, that that
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changed the conduct of how we would tackle the public
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hearing.
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Q. Okay. As far as change, you make an allegation
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in the Petition about the City having changed its rules
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governing the conduct of the proceedings. Is this what
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you're speaking about, or is this what the allegation goes to
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as far as changing rules?
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A. No. There were different rules that were
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changed, different things that happened along the way before
7
the hearing and during the hearing that seemed to shift.
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When the hearing was going to be called, there was suddenly a
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hearing that had not been public noticed that was at night
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that was -- actually, we were invited to by the Corps of
11
Engineers, but we didn't understand what that purpose and who
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was holding that hearing. There was -- Whether we could
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submit something and whether we couldn't, Mr. Moran agreed
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that we couldn't in the beginning, and then at the end of it,
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he allowed to submit things. So, there was a shifting --
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There was shifting rules and different things that happened
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throughout the process.
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Q. I suppose, if there are any changes in the rules
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of the proceedings happening during the hearing, those
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changes would be reflected in the transcript itself?
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A. Yes.
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Q. Have you talked about all the rule changes that
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occurred before the hearing, before a transcript was made?
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A. All of the rule changes?
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Q. So far, I've only heard one, and there may only
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be one, about being told one thing on a Friday before the
3
hearing by a City official as far as just showing up, and an
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ordinance saying something else. I just want to make sure
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that I'm covering the allegations in the Petition.
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A. There may be. It's not coming to my mind right
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at this moment. Perhaps I'll be able to think of something
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as the hearing goes on.
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Q. Let me ask you a little bit about archaeology,
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archaeological issues brought up at the hearing. Before the
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hearing, did you receive any papers from anyone concerning
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archaeological issues in connection with the proposed
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landfill?
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A. Yes. I received some papers from Mr. Durako that
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he said he didn't know if that was all they had on
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archaeology, and I had been asking for the archaeology report
17
for quite some time, and I don't know the exact date Miss
18
Livingston had me sign that I received it. So, she would
19
have that information, but I don't know the exact date, but
20
it was only within a few weeks of the public hearing.
21
Q. Now, these papers that you received, did you --
22
what did you do with these papers?
23
A. I contacted Dr. John Kelly, who's an
24
archaeologist. I took them also to show some other people.
22
Keefe Reporting Company
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I gave the file to Dr. Kelly, and he reviewed it and made
2
notes, and he put stickies at various points on it.
3
Q. You say Dr. Kelly is an archaeologist. Does he
4
practice in archaeology?
5
A. He has -- He is a consultant. He teaches at
6
Washington University. He works with Cahokia Mounds, does a
7
lot of the archaeological digs at the Mounds, conducts
8
archaeology classes with teaching students archaeology
9
techniques, and he's an expert on the Mississippian culture
10
and the East St. Louis Mounds group.
11
Q. Was Dr. Kelly critical in any way of the papers
12
that you gave him that you received from Waste Management
13
concerning archaeological issues?
14
MR. MORAN: Objection. There's an attempt here to now
15
find out what Dr. Kelly may have reviewed, evaluated with
16
respect to some documents that were given to him, and in
17
indeed it may very well be whatever this evaluation is we're
18
about to hear is information that may have been presented at
19
the siting hearing I believe these Petitioners claim have
20
some relevance to the siting hearing. So, now we're getting
21
into the area of substantive testimony about allegedly
22
relevant matters in this hearing and not simply a fundamental
23
fairness proceeding. I object to the relevance of this, and
24
there appears to be an attempt to introduce evidence that
23
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1
should have been presented during the siting hearing.
2
MR. PAPA: The City would join in that objection.
3
HEARING OFFICER WEBB: Okay.
4
MR. MORRISON: I think this will all become clear a few
5
more questions down the road, but the substance of what Dr.
6
Kelly said -- Now is probably a good time to pass out these
7
Exhibits and see what gets admitted into the record and what
8
doesn't. But what we're going to hear very soon is on
9
fundamental fairness, and this is in the transcript, but the
10
transcript will show that there was an attempt by Ms. Andria
11
to question at the hearing a Waste Management witness about
12
archaeological issues at the site, and there were objections
13
made that these questions about, "Well, what about these
14
mounds found within the area where the landfill is proposed,
15
what the significance of these?", there was an objection that
16
there was no significance. There was no relevance. This
17
didn't have anything to do with compatibility with the
18
existing area. So, what these notes are going to be relevant
19
for, they're going to support Ms. Andria's testimony that she
20
was prepared at that hearing to bring out testimony from the
21
applicant's witnesses about archaeology, and if the Pollution
22
Control Board determines that there was error in excluding
23
that evidence, well, the question is going to be whether the
24
Petitioners were prejudiced at all. Now, certainly if the
24
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1
notes are meaningless and they just ask what were the name of
2
the witness, it's going to be hard to find prejudice, but the
3
substance of Kathy Andria sought to get from the witness is
4
important in determining prejudice. And in substance, these
5
notes are offered to show the substance of that inquiry, not
6
to offered to prove the truth of the matters asserted in
7
those notes. In a post hearing brief, if there's going to be
8
mention of those notes by me, it's going to be in the fashion
9
of fundamental fairness.
10
MR. MORAN: With respect to any notes that Dr. Kelly may
11
have prepared, clearly if that's what they are, based on the
12
ruling the hearing officer made during the siting hearing to
13
exclude such materials, if it were appropriate, the proper
14
procedure would have been for American Bottom Conservancy or
15
Sierra Club to make its appropriate offer of proof and lay
16
out that information during the hearing, not to attempt to
17
introduce it during the Pollution Control Board hearing on
18
the appeal. So, the whole notion that we need to find out
19
what that information was now can only be offered for the
20
truth of the matters asserted therein because it's evidence
21
that ABC alleges is relevant to this proceeding. It isn't --
22
It should have been presented at the siting hearing. There
23
should have been an offer of proof made. There wasn't. And
24
it's improper to introduce it at this point.
25
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HEARING OFFICER WEBB: Well, since the substance of that
2
testimony is not part of the record, although I think the
3
allegation is that they wanted to comment and were not able
4
to. So, I'm going to allow you to ask some questions about
5
it within reason as an offer of proof to the Board.
6
MR. MORRISON: At this point, let me pass out -- I
7
probably should have done this before the hearing, but I've
8
got these Exhibits. Some may come in, and some may come in
9
as offers of proof. If I may take a minute to give everybody
10
a set, including you, Ms. Webb.
11
HEARING OFFICER WEBB: Okay.
12
MR. MORAN: Miss Hearing Officer, if I might clarify.
13
Is it your ruling --
14
HEARING OFFICER WEBB: He may ask a few questions.
15
MR. MORAN: We are proceeding as if it's an offer of
16
proof?
17
HEARING OFFICER WEBB: This is an offer of proof. Let
18
me know when this line of questioning is completed so we can
19
reflect on the record that we're back.
20
21
BY MR. MORRISON:
22
Q. Are you ready, Miss Andria?
23
A. Yes, I am.
24
Q. Now, forgive me if I asked this, but was Dr.
26
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Kelly in any way critical of papers that you gave him that
2
you received from Waste Management?
3
A. He was extremely critical of the papers and the
4
procedures and the way the surveys were reported and taken
5
and undertaken, that the procedures.
6
Q. Did you and he discuss rebutting the report
7
either through applicant witnesses or presenting your own
8
evidence?
9
A. Yes, we did.
10
Q. Did he give you any notes that you could use in
11
connection with that effort?
12
A. Yes, he did.
13
MR. MORRISON: Ms. Webb, I've mistakenly given to you
14
the original Exhibits. I have a courtesy copy for you.
15
Thank you. Ms. Webb, if I may approach Ms. Andria and hand
16
her what's been marked Exhibit 11.
17
HEARING OFFICER WEBB: You may.
18
(Mr. Morrison hands document to witness.)
19
20
BY MR. MORRISON:
21
Q. Ms. Andria, I've handed you what's been marked
22
ABC Exhibit 11. Would you identify that, please?
23
A. It's says "Milam North Archaeology, History of
24
Investigation." It's two pages, plus a third page that lists
27
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1
various sites, locations and what was found. It's notes that
2
John Kelly gave to me.
3
Q. Now, I believe the transcript of the proceedings
4
before the City of Madison shows your effort to question a
5
Waste Management witness about archaeological issues?
6
A. Yes. It seemed logical that the archaeology, the
7
mounds on the site, the only thing that it seemed to fall
8
under in terms of the siting criteria is incompatibility, and
9
we certainly consider it to be incompatible to have a
10
landfill on top of important Indian remains and mounds that
11
are eligible for the national historic registry listing. So,
12
we -- I forgot your question. I'm sorry.
13
Q. Well, I think you've answered that question. But
14
another question, were any of your questions that you were
15
going to ask at that hearing going to be based upon what is
16
set out in these notes, that ABC Exhibit 11?
17
A. Yes. I assumed there was going to be the
18
archaeology report presented at the hearing. I did not see
19
the list of witnesses that they had. When they announced who
20
was going to do that, I did not see an archaeologist.
21
Mr. Schanuel was the person who was listed as the
22
incompatibility person. So, I attempted to ask questions on
23
archaeology and cultural resources and the mounds from him.
24
The report was not submitted at the hearing. It was not --
28
Keefe Reporting Company
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An archaeologist wasn't there. We were denied asking
2
questions, and the report apparently was submitted at the end
3
of the public comment period.
4
Q. And when you say "a report was not submitted," at
5
least at the hearing, what report are you talking about?
6
A. The archaeology, the papers that were given to me
7
by Mr. Durako and then the archaeology report -- I do not
8
know if they're the same -- that was submitted by Waste
9
Management by Mr. Shinn, I think is his name, from Burns and
10
McDonnell at the City of Madison after the close -- or at the
11
close of the public hearing -- I mean, at the close of the
12
public comment period, not at the public hearing.
13
Q. So, this archaeology report, what you're
14
referring to as a report that was not submitted during the
15
public hearing, is that what you're calling the papers that
16
you had received from Waste Management and given to Dr.
17
Kelly?
18
A. That's what -- I received a file folder of
19
documents that looked to be a report. I do not know if it is
20
the archaeology report since it was never identified as such.
21
Q. Okay. But those papers were not submitted at the
22
public hearing or beforehand?
23
A. That's correct.
24
Q. And the notes that you had from Dr. Kelly
29
Keefe Reporting Company
1
pertained to those papers?
2
A. That's correct.
3
Q. Now, you've just said that there was an
4
archaeology report submitted by Waste Management during the
5
public comment period?
6
A. At the very end is my understanding, of the
7
public comment period.
8
Q. Why did you not respond to that report?
9
A. It was at the end of the public comment period.
10
I didn't know it was there. I don't think there was time to
11
respond.
12
MR. MORRISON: That concludes the offer of proof.
13
HEARING OFFICER WEBB: Thank you.
14
15
BY MR. MORRISON:
16
Q. Before the public hearing, did you have any
17
information on wetlands impacts arising out of the proposed
18
landfill?
19
A. Yes. The Waste Management had applied sometime
20
perhaps -- I'm not even sure of the date, but quite sometime
21
before to the Corps of Engineers for a permit -- a 404 permit
22
to destroy 18 acres of wetlands and in order to use that as
23
soil to cover garbage, and there was a phrase -- and I don't
24
remember the exact wording of the phrase -- that said that it
30
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1
might be used as part of other activities at North Milam.
2
Q. And did you attempt to elicit from any witnesses
3
-- Waste Management witnesses at the public hearing any
4
information about incompatibility with the wetlands?
5
A. I did. I tried to ask questions of the
6
incompatibility expert and was not allowed to ask questions
7
on wetlands.
8
MR. MORRISON: Miss Webb, that concludes the Direct
9
testimony of Ms. Andria. It's not the Petitioners' case in
10
its entirety.
11
HEARING OFFICER WEBB: Thank you. Is anyone adverse to
12
taking a five-minute break before Cross Examination?
13
(No response.)
14
HEARING OFFICER WEBB: We'll take a five-minute break.
15
16
(A brief recess off the record.)
17
18
HEARING OFFICER WEBB: All right. We will go back on
19
the record and pick up with Miss Andria's Cross Examination.
20
MR. MORAN: Thank you.
21
22
C R O S S E X A M I N A T I O N
23
by Mr. Donald J. Moran:
24
Q. Miss Andria, you've been involved in site
31
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1
location proceedings prior to this one; haven't you?
2
A. Yes, I have.
3
Q. A number of them; correct?
4
A. Yes, I have.
5
Q. How many?
6
A. I think six.
7
Q. And, in fact, the first one you were involved in
8
was one that was, in fact, presented to the City of Madison;
9
isn't that correct?
10
A. I don't know.
11
Q. Were you ever involved in a siting proceeding
12
before this one that was held before the City of Madison?
13
A. Yes.
14
Q. And when was that?
15
A. When?
16
Q. Approximately.
17
A. Maybe ten years ago. I'm not sure of the date.
18
Q. And you participated in that siting proceeding in
19
what capacity? Were you representing an organization? Did
20
you appear on your personal behalf?
21
A. I represented an organization, and a group of
22
citizens also bantered together, and I don't remember whether
23
I was involved individually or just as the organization.
24
Q. What was the organization's name?
32
Keefe Reporting Company
1
A. SPILL, S-P-I-L-L.
2
Q. And that's an acronym for something?
3
A. Stop Polluting Illinois.
4
Q. So, you were opposed to that siting application
5
pending before the City of Madison?
6
A. That's correct.
7
Q. Did the City of Madison have a siting ordinance
8
that applied to that proceeding?
9
A. I believe so.
10
Q. And did you review that siting ordinance prior to
11
your participation in that siting hearing?
12
A. I know that we handed in documents. So, I must
13
have reviewed it. I don't remember the details. I remember
14
some of the details very vividly. I don't remember all the
15
details of that.
16
Q. Isn't it true that that siting ordinance provided
17
that if there were any documents or exhibits any party wished
18
to use at the siting hearing, those documents had to be filed
19
five days before the start of the public hearing?
20
A. I know that there was -- part of the ordinance
21
said something about pre-filing. I do not remember the
22
specifics of the ordinance.
23
Q. And the provisions in the ordinance that applies
24
to this proceeding, in fact, provided that any documents or
33
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1
exhibits that a party wished to use must be filed five days
2
before the start of the public hearing; isn't that correct?
3
A. What was the first part of your question?
4
Q. In this proceeding before the City of Madison, a
5
city ordinance provided and provides that if any party wished
6
to use an exhibit or document, that exhibit or document had
7
to be filed five days before the start of the public hearing?
8
A. That's correct.
9
Q. And that's, in fact, the same provision that was
10
in the ordinance applied to the proceeding you participated
11
in on behalf of SPILL approximately ten years ago; is that
12
correct?
13
A. I don't know if it's the same.
14
Q. Did you file any exhibits or documents on behalf
15
of SPILL in the proceeding before the City of Madison
16
approximately ten years ago?
17
A. My memory is that we did, yes.
18
Q. And did you file those documents within the
19
requisite period of time before the public hearings began on
20
that proceeding?
21
A. I'm sorry. I do not remember.
22
Q. Now, you indicated here that you first became
23
aware the existence of the City of Madison's siting ordinance
24
on Monday, December 18th; is that correct?
34
Keefe Reporting Company
1
A. That's correct.
2
Q. And I believe you indicated that you first made
3
any contact with the City of Madison about whether it had a
4
siting ordinance on December 15th of 2006?
5
A. No, that's not what I said. I said I called to
6
find out if there were any rules in place. I didn't ask
7
about an ordinance. It didn't occur to me to ask about an
8
ordinance. I said just, "Do I have to register? What rules
9
are in place?"
10
Q. So, when you called the City of Madison on
11
December 15th, what you're telling us is that you had no
12
thought or indication about whether or not the City of
13
Madison had a siting ordinance that might apply to this
14
siting application; would that be correct?
15
A. I did not know that there was a siting ordinance.
16
I had heard that there might be something in place, that I
17
needed to do something, but I did not know that there was a
18
siting ordinance, and I did not know to ask.
19
Q. Did your knowledge of the fact that the City of
20
Madison had a siting ordinance in 1995 at all enter into your
21
mind?
22
A. I'm afraid, no, it did not. It was ten years
23
ago, and I just did not remember that.
24
Q. So, when you called the City of Madison on
35
Keefe Reporting Company
1
December 15th, you didn't ask whether the City had a siting
2
ordinance that applied to this proceeding?
3
A. I did not use those words, no.
4
Q. You simply asked whether there were any rules
5
that applied to the siting hearing?
6
A. I asked, "Do I have to register for the public
7
hearing? Are there any rules in place?", and he said, "No.
8
Just show up," and then I asked how the hearing was going to
9
be conducted and how they were going to take witnesses, and
10
that's when he told me to call Mr. Papa.
11
Q. So, the information you received on December 15th
12
was that you should just show up to the hearing; correct?
13
A. That's correct.
14
Q. And there was no discussion about whether there
15
was any siting ordinance; correct?
16
A. That's correct.
17
Q. And you were told to call Mr. Papa?
18
A. That's correct.
19
Q. Did you call Mr. Papa?
20
A. I called Mr. Papa's office at the number that the
21
gentleman had gave me, and a woman answered. I identified
22
myself and why I was calling and asked to speak to Mr. Papa,
23
and I was told that they were all at a party -- a Christmas
24
party all day long, and they wouldn't be back.
36
Keefe Reporting Company
1
Q. Did you ask for any other information about
2
Mr. Papa by which you may be able to contact him, in other
3
words, a cell phone number or some other means to contact
4
him?
5
A. I did not.
6
Q. So, you didn't talk to anybody over that weekend,
7
that is the 16th and 17th of December, regarding the
8
questions you had asked the City of Madison on the 15th;
9
correct?
10
A. I didn't talk to anybody at the City, is that
11
what you're asking me?
12
Q. Yes.
13
A. I did not talk to anybody from the City.
14
Q. And you didn't talk to Mr. Papa over that
15
weekend; correct?
16
A. No, I did not.
17
Q. So, as of Monday then, you still hadn't heard
18
from Mr. Papa; correct?
19
A. I believe that's correct.
20
Q. And your understanding was you should just show
21
up at the hearing; correct?
22
A. Well, let's put it this way: That was what I was
23
told on Friday, but when I called and could not get any
24
information and a law office was going to be closed all day,
37
Keefe Reporting Company
1
because I called in the morning, that's when I went straight
2
to City Hall to find out what was there and what was in
3
place.
4
Q. Now, wait a minute. Who was closed all day?
5
A. I was told Mr. Papa's office on Friday that
6
they're all gone for the whole day at a Christmas party.
7
Q. I'm trying to understand what you were thinking
8
over this weekend when you hadn't heard from Mr. Papa and you
9
were told simply to show up at the hearing. So, at that
10
point, you still had no knowledge about whether there was a
11
siting ordinance; correct?
12
A. What I was thinking is that there was funny
13
business.
14
Q. You thought there was a funny business?
15
A. I said it did not seem logical to me that a law
16
office would close all day on a Friday for a Christmas party,
17
and I did not think that -- I thought something was funny. I
18
identified myself. I gave my name. I said, "Why are you
19
calling on Friday?" You asked me what I was thinking. I was
20
thinking that something was not right about this.
21
Q. Did you have or at any point learn facts or
22
information to support your thought that there was some funny
23
business going on?
24
A. Do I know that they were there? I mean, I don't
38
Keefe Reporting Company
1
understand --
2
Q. No. I'm just trying to focus on your use of the
3
term "funny business". I'm not sure what you actually mean
4
by that. But I'm asking, were there any facts or information
5
you learned afterwards that supported your thought that there
6
was some funny business going on?
7
A. I'm finding it difficult to understand the
8
question you're asking. What you asked me was what my
9
thinking was. My thinking has been that there had been
10
fundamental unfairness found on the part of the City before.
11
There had been fundamental unfairness found on the part of
12
Waste Management. I did not think that I was going to have
13
to deal with either of these for this situation until after I
14
tried to get what rules were in place and what was going to
15
be happening on that Friday. That's when I started to think,
16
"Something's not right here."
17
Q. So, when you referred to "funny business," what
18
you were thinking is fundamental unfairness; would that be
19
accurate?
20
A. That's correct.
21
Q. So, as of the weekend of December 16th and 17th,
22
you're thinking there may be some fundamental unfairness
23
going on with respect to the siting application?
24
A. I was thinking that there was the possibility
39
Keefe Reporting Company
1
that I was not being given all of the information that I was
2
asking for.
3
Q. So, would it be accurate to say that you believed
4
that Mr. Papa was deliberately not calling you back over that
5
weekend; did that thought occur to you?
6
A. I guess I did not think about -- Since the office
7
was closed on Friday, I did not think about a weekend being
8
business, that the City or that Mr. Papa would be operating
9
as if it were a weekday, especially with it was the last
10
weekend before Christmas.
11
Q. So, you didn't view it as unusual in any way that
12
Mr. Papa did not return your call over the weekend; is that
13
accurate?
14
A. I did not say that, and I would not say that.
15
Q. Okay. Well, what was your point about saying
16
this is the weekend before Christmas, and you didn't
17
necessarily expect that there would be some response over the
18
weekend?
19
A. I'm saying I did not make a determination that it
20
was unusual that he did not call me back. I'm saying I did
21
not think that it was usual. I'm just saying -- You're
22
asking me did I make a decision; did I have this thought in
23
my mind; was I waiting by the phone for him to call? No, I
24
was not, although the number I gave was my cell number. I'm
40
Keefe Reporting Company
1
trying to answer your questions.
2
Q. And you didn't try to reach Mr. Papa with his
3
cell number; would that be correct -- over that weekend?
4
A. I do not have Mr. Papa's cell number, and I did
5
not.
6
Q. And you didn't ask for his cell number when you
7
called his office on Friday?
8
A. I did not.
9
Q. So, Monday morning, you don't know any more than
10
you knew on Friday; correct?
11
A. I believe that's correct.
12
Q. Did you receive any phone calls from anyone on
13
Monday, December 18th?
14
A. I do not remember.
15
Q. Did you take any actions on Monday, December
16
18th?
17
A. Yes.
18
Q. What did you do?
19
A. I believe I went with Mr. Norman to the -- Jack
20
Norman to the City of Madison City Hall.
21
Q. Why did you go to the City of Madison on Monday
22
morning with Mr. Norman if you hadn't heard back from
23
Mr. Papa or anyone else?
24
A. Because the City is where the repository of
41
Keefe Reporting Company
1
information is, the City Clerk's office.
2
Q. But you didn't go to the City of Madison on
3
Friday; did you?
4
A. No, I did not.
5
Q. But you went on Monday; correct?
6
A. That's correct.
7
Q. And you went for what purpose?
8
A. I went to see what was -- what was in place, if
9
there were rules, what was going on with the hearing, and I
10
got a copy of the ordinance I believe.
11
Q. And who gave you a copy of the ordinance?
12
A. I do not know.
13
Q. Was it a man a woman?
14
A. It was a woman I believe.
15
Q. Did you ask for the ordinance, or was it simply
16
offered to you?
17
A. I asked -- I don't remember the words that I
18
used. I asked about what -- how it was going to be
19
conducted, if there were anything there that I could see. I
20
don't remember the words that I used.
21
Q. And were you asked to pay for a copy of the
22
ordinance?
23
A. Yes.
24
Q. What was the charge for the ordinance?
42
Keefe Reporting Company
1
A. It was to be -- As I said, I don't remember. I
2
think it was $5 for up to three pages or up to five pages.
3
I'm not sure. If you got one page, it was still $5, and for
4
every page after that, it was a dollar.
5
Q. How long was the ordinance in pages?
6
A. It was 11 pages.
7
Q. Did you receive any documents in addition to the
8
siting ordinance when you went to the City on December 18th?
9
A. I'm not sure if I did.
10
Q. Well, isn't it true that you also received a
11
document that set out and identified the witnesses that Waste
12
Management of Illinois was going to present at the siting
13
hearing?
14
A. That's possible.
15
Q. Because one of the things the ordinance required
16
was that in conjunction with the filing of other documents or
17
exhibits, that the applicant and the other parties submit a
18
list of its witnesses that it intended to call at the hearing
19
also five days before the hearing; is that correct?
20
A. That's correct.
21
Q. So, you received those two documents, the siting
22
ordinance and a list of witnesses that were going to be
23
called by Waste Management of Illinois; correct?
24
A. I believe so.
43
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1
Q. And you were charged for both of those documents?
2
A. I don't remember the specific charge.
3
Q. But you were charged for them?
4
A. I believe so.
5
Q. You did pay some amount of money --
6
A. I did.
7
Q. -- for these documents?
8
A. I did.
9
Q. You believe it was at least $5?
10
A. I do not remember the amount. I'm sorry.
11
Q. So, it could have been less than $5?
12
A. I do not remember the amount.
13
Q. As you sit here now, you have no idea what the
14
amount was?
15
A. That's correct.
16
Q. Do you have any information about whether you
17
were charged the customary amount for those documents or
18
whether you were given those documents at some reduced
19
amount?
20
A. I was -- There was a phone conversation. The
21
clerk or -- I don't know that it was the clerk or the deputy
22
clerk called someone and talked to someone on the telephone,
23
and they had a rather -- they talked for several minutes, and
24
they charged me then less than the full amount would have
44
Keefe Reporting Company
1
been, and I do not remember the difference, and I looked and
2
didn't find a receipt. So, I could not tell you the amount
3
that I was charged, but I do also know that I was not given
4
-- after the close of the public comment period, I was not
5
given a reduced rate. I had to pay a dollar a page for
6
everything that I got -- the minutes and everything.
7
Q. This would have been after the decision was
8
rendered by the City of Madison?
9
A. This would have been after the vote was taken.
10
Q. And the vote was taken on February 6th of 2007?
11
A. I don't have that date.
12
Q. I understand that you don't recall what the
13
amount was you paid for the ordinance and the list of
14
witnesses, but it's your contention that whatever that amount
15
was, it was excessive; is that correct?
16
A. My contention is that it was excessive for the
17
City to charge what they were wanting to charge, and that
18
apparently -- I asked questions about the charging policy by
19
the City, and I firmly believe that it's against the law what
20
they're charging citizens to get copies of City documents.
21
Q. Is it your contention that what you were charged
22
here for these documents was against the law?
23
A. I was given the special rate. I do not remember
24
what it was, but it was -- I would assume specifically the
45
Keefe Reporting Company
1
clerk was told to charge me less because of the previous
2
appeal that we had -- and a decision on fundamental fairness
3
that I got a special rate up-front because it was me. I
4
think the next person could have gone, and they would have
5
not got a special rate. I think that's fundamentally unfair
6
to citizens.
7
Q. Do you have any facts or information to support
8
your belief that the reason you were given a lesser charge
9
for these documents was because of the appeal of the SPILL
10
matter back in 1995?
11
A. Do I have proof of that?
12
Q. Or any facts or information. Did somebody say
13
that? Did you hear anything that suggested that was the
14
reason?
15
A. Well, they had an interesting discussion over on
16
the side, the woman employee of the City whoever was on the
17
other end of the phone.
18
Q. But you didn't hear any of that discussion; did
19
you?
20
A. No, I did not.
21
Q. So, other than that, you don't have any basis to
22
conclude the reason that you were given whatever charge you
23
were given was because of the involvement in the SPILL
24
proceeding back in 1995?
46
Keefe Reporting Company
1
A. I think that it's a logical deduction from the
2
way Waste Management handled this proceeding and the way the
3
City handles it that that could be the case, and I found that
4
at another siting hearing that I was at that I attempted to
5
get information, it was cited -- or asked, "Are you the lady
6
that sued over this?", or something, and then they just gave
7
me something. So, yeah, I think you get special treatment if
8
someone doesn't want a lawsuit to be there, but I still think
9
that what they did and how they did it was fundamentally
10
unfair. It's not only unfair to us; it's unfair to anyone
11
who wanted -- If Jane Smith went in there and wanted to get a
12
document to participate in the hearing, I really firmly
13
believe they would not give them her a special price.
14
Q. But in this case, you contend that you received
15
special treatment with respect to the amount you were
16
charged?
17
A. With respect to the ordinance, yes, not with
18
respect to the public comments that were submitted or the
19
decision, as you call it, the vote, I call it the minutes of
20
that meeting, with regard to the end of the public comment
21
period, yes.
22
Q. And you're contending that the amount you were
23
charged was fundamentally unfair; correct?
24
A. I am considering -- Yes, the amount I was charged
47
Keefe Reporting Company
1
was fundamentally unfair.
2
Q. And are you contending the amount you were
3
charged for the ordinance and the list of witnesses was
4
excessive?
5
A. No, I am not saying that the amount I was charged
6
was excessive. I don't remember what it was. I do know it
7
was a reduction from what it was first said to be.
8
Q. In your Petition for Review that you filed in
9
this proceeding, you allege that the City's sum that was
10
being charged for the ordinance that you received was
11
excessive. Are you now saying that this allegation ought to
12
be changed and deleted because you're now not claiming the
13
amount you were charged was excessive?
14
MR. MORRISON: If I may object. That may
15
mischaracterize the Petition. For clarity, what paragraph,
16
counsel, please?
17
MR. MORAN: I'm sorry. It is paragraph 16, Petition For
18
Review, and the specific sentence I'm referring to is the
19
last sentence. I'll just read that. It says, "Further, in
20
light of the excessive sum the City sought to charge for a
21
copy of Ordinance 1670, the City should have borne the burden
22
of including Ordinance 1670 within the record."
23
A. I think that statement is correct. Sought to
24
charge is what they sought to charge. They sought to charge
48
Keefe Reporting Company
1
me a dollar a page after the initial amount.
2
3
BY MR. MORAN:
4
Q. So, you're still contending that the amount the
5
City initially quoted you for the ordinance and the list of
6
witnesses was excessive?
7
A. I do.
8
Q. But are you saying that the amount you were
9
actually charged for the ordinance and the list of witnesses
10
was not excessive?
11
A. I am saying that I don't remember the amount.
12
So, I couldn't say whether I think it was excessive or not.
13
Q. So, it's fair to say, as you sit here now, you
14
are unable to say whether the amount you were actually
15
charged was excessive; would that be fair?
16
A. That's fair.
17
Q. Are you contending that the amount you were
18
actually charged for the ordinance and the list of witnesses
19
was against the law?
20
A. The amount that I paid, is that what you're
21
asking.
22
Q. Yes.
23
A. I don't know. I doubt it.
24
Q. Are you contending the amount that was quoted to
49
Keefe Reporting Company
1
you for the ordinance and the list of witnesses was against
2
the law?
3
A. I believe it's against the freedom of information
4
law and the access to public records, yes.
5
Q. And your claim here is that the amount you were
6
actually charged for the ordinance and list of witnesses was
7
in any case fundamentally unfair; correct?
8
A. I'm sorry. Would you --
9
Q. And what you're saying here is the amount you
10
were actually charged for the ordinance and the list of
11
witnesses was fundamentally unfair?
12
A. You just asked me that question.
13
Q. I just want to make sure that I understand that
14
that's your contention here.
15
A. I said I don't know the amount that I was
16
actually charged. I was relieved to get it less than $11 or
17
however much more because if I got the list of witnesses,
18
that was -- I don't know how many pages that was. So, I
19
don't know what the total was. I needed that ordinance. I
20
had no place else to get it. It was not at the library. So,
21
I was relieved that I could get it for a discount, shall we
22
say.
23
Q. Are you saying now that you are unable to state
24
whether the amount you were actually charged for the
50
Keefe Reporting Company
1
ordinance and the list of witnesses was fundamentally unfair?
2
A. Mr. Moran, I will say it again. I do not
3
remember the amount I was given. I cannot make a judgment as
4
to whether I think it was against the law.
5
Q. That wasn't my question. I'm focusing now on the
6
fundamental fairness. Forget about the question about
7
whether it's against the law.
8
A. Okay.
9
Q. Now I'm only asking about the fundamental
10
fairness.
11
A. Okay.
12
Q. Are you saying that because you don't know as you
13
sit here what you were charged, you don't know whether that
14
amount was fundamentally unfair, and you're not contesting
15
that it was fundamentally unfair because you can't -- you
16
don't know what the amount charged was?
17
A. I don't know the amount that I paid was for that.
18
Q. I'm saying don't you know whether the amount that
19
you were charged was fundamentally unfair?
20
A. Right. I do know what I did pay at the end of
21
the -- after the vote was taken.
22
Q. So, would it be accurate to say then that you are
23
not contending as you sit here now the amount you were
24
charged for the ordinance and the list of witnesses was
51
Keefe Reporting Company
1
fundamentally unfair? You're not saying that now; correct?
2
A. I am not saying that it was fundamentally unfair.
3
I am not saying it was fundamentally fair. Since I don't
4
know the amount, I can't say that.
5
Q. Now, you indicated that you received a copy of
6
the ordinance on Monday, December 18th; correct?
7
A. Yes.
8
Q. And you said you skimmed over the ordinance on
9
the 18th; would that be accurate?
10
A. While I was still at the office.
11
Q. Was there ever a time when you actually read
12
through the ordinance start to finish?
13
A. I would assume so.
14
Q. But as you sit here, you don't know whether you
15
did that before the hearing started?
16
A. Every word, I don't know when I did. I don't
17
know whether I read it in part. I don't know whether I sat
18
down and read it from start to finish. I really don't know
19
the answer to the question.
20
Q. At some point, did you learn that the ordinance
21
contained within it the same provision as in the previous
22
ordinance from 1995 that said any exhibits or documents
23
intended to be used at the hearing had to be filed five days
24
before the start of the public hearing?
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Keefe Reporting Company
1
A. Yes, I learned that on Monday.
2
Q. On Monday you learned that?
3
A. Yes.
4
Q. December 18th?
5
A. Yes.
6
Q. And, so, you determined based on your reading of
7
that ordinance on the 18th that any documents you wanted to
8
use at the hearing had to have been filed five days before
9
December 21st?
10
A. On Monday, you said December 18th?
11
Q. That was Monday, December 18th.
12
A. Yeah. I'm sorry. I have my dates mixed up.
13
Yes, I learned that I should have filed the previous Friday
14
of the public hearing.
15
Q. Yes. By Friday, December 15th; correct?
16
A. Yes.
17
Q. Now, did you ask anyone to read the ordinance and
18
indicate to you whether your reading of the ordinance was
19
correct in that regard?
20
A. I don't believe so.
21
Q. So, you didn't consult with a lawyer about what
22
the contents of that ordinance said or meant; correct?
23
A. I think I discussed it with Mr. Norman, and I
24
discussed it with Dr. Kelly, and I'm sure I discussed it with
53
Keefe Reporting Company
1
other people, but I did not consult an attorney, I do not
2
believe.
3
Q. So, you did not at any time seek any legal advice
4
as to what the intent or meaning of that ordinance language
5
was; correct?
6
A. I believe that's correct.
7
Q. You talked to Mr. Norman?
8
A. I did.
9
Q. And who is Mr. Norman, by the way?
10
A. Mr. Norman is both a Sierra Club and an ABC
11
member.
12
Q. And Dr. Kelly you've already identified?
13
A. Yes.
14
Q. Who were the other people that you talked to
15
about this provision of the ordinance?
16
A. Other people perhaps that were involved and who
17
were going to be going to the hearing, Sierra Club members.
18
I don't remember specifically.
19
Q. But they all concurred in your view that in order
20
to submit any documents, they would have had to be filed no
21
later than Friday, December 15th?
22
A. I don't remember that we took a vote. I mean, it
23
said what it said, and that's how we -- It's pretty clear
24
what it said.
54
Keefe Reporting Company
1
Q. And did reading that in any way refresh your
2
recollection that the City of Madison ordinance that you had
3
dealt with back in 1995 had exactly the same provision?
4
A. Oh, yes.
5
Q. So, then you remembered that indeed, "Here's that
6
same provision that we dealt with back in 1995"?
7
A. Yes.
8
Q. Now, as of December 18th of 2006, was it your
9
intention to have any documents or exhibits prepared that
10
would be presented at the siting hearing?
11
A. As of which date?
12
Q. December 18th, Monday.
13
A. Would you repeat the question? I'm sorry.
14
Q. Yes. As of Monday, December 18th, was it your
15
intention or plan to have any documents or exhibits prepared
16
so they could be submitted at the siting hearing?
17
A. Yes. I had done -- I had started doing a google
18
search and going to some sites that I know about landfill
19
impacts and various studies that I've seen and been aware of
20
from previous work on impacts where landfills on groundwater
21
on how --
22
MEMBER OF THE PUBLIC: Speak up, please.
23
A. I'm sorry. I had started to compile studies from
24
the Internet on different impacts that I knew of with health
55
Keefe Reporting Company
1
related things to communities living around landfills, to
2
impacts to groundwater, to various things. I had begun doing
3
those to bring to the hearing that I would have introduced
4
and asked questions from.
5
6
BY MR. MORAN:
7
Q. When did you start that google search? That day,
8
Monday, December 18th?
9
A. No. I had gotten some other documents from when
10
the first 404 permit for the Corps of Engineers, I believe I
11
handed in some documentation on that. And, so, I was -- Some
12
of the research had already been done. Some of it was -- I
13
was getting copies of things that I knew or that I had turned
14
in, and then there was the archaeology.
15
Q. So, some of these reports that you intended or
16
planned to present at the siting hearing you had obtained
17
during the 404 permitting process?
18
A. Some of them, yes.
19
Q. And you said you submitted those documents. To
20
whom did you submit them?
21
A. To the Corps of Engineers.
22
Q. And when was that?
23
A. Whatever the deadline was for public comments,
24
and then there was -- I don't remember the dates. I'm sorry.
56
Keefe Reporting Company
1
And I think that -- It's my understanding that they held it
2
open for new information. And, so, I did submit additional
3
studies and reports.
4
Q. Was your submission of those initial reports done
5
sometime prior to December 15th of 2006?
6
A. Yes.
7
Q. How long before? Approximately a few months?
8
A. I'm sorry. I don't have a timeline in my head.
9
Q. Do you recall when you first became involved in
10
any part of 404 permit process?
11
A. I don't remember the date.
12
Q. Was it in 2005?
13
A. I believe so.
14
Q. So, it would have been well over a year before
15
this siting application was even filed; correct?
16
A. I believe so.
17
Q. Now, those documents that you submitted in the
18
404 permitting process, you intended or planned to submit
19
here, did you, in fact, offer any of those documents at the
20
siting hearing?
21
A. I believe I offered one. I'm not sure if I tried
22
to offer more than one, but I know that there was one that I
23
wanted to question Scott Schanuel on, which was impact of
24
landfills on the community. I thought that was a
57
Keefe Reporting Company
1
compatibility issue.
2
Q. And when you offered that document, was it
3
admitted into evidence?
4
A. No, it was not.
5
Q. Which document was it?
6
A. I don't remember the name of it.
7
Q. Is it your recollection that at some point during
8
the hearings, all of the documents you offered were admitted
9
as part of this record?
10
A. I don't believe so.
11
Q. What documents weren't admitted?
12
A. I don't believe that the landfill document from
13
Rachel's was admitted, and I'm not sure if there were others.
14
Q. Do you know the circumstances under which you
15
offered that document relating to landfills from Rachel's?
16
A. I think I just said it was during the -- when I
17
was questioning Mr. Schanuel, I was asking him about impact
18
and compatibility on surrounding communities.
19
Q. And then later you were given the opportunity to
20
again offer that exhibit into evidence; weren't you?
21
A. It was at the end of the hearing, and there was a
22
magnanimous gesture, "Put it in since it's not going to
23
matter anymore," because there were no more witnesses to
24
question. So, it really had no -0 I mean, it lost its
58
Keefe Reporting Company
1
impact. I couldn't question from it. I couldn't do
2
anything. I couldn't give a document that --
3
Q. Well, was it your understanding that you were
4
unable to ask questions of a witness based on a document that
5
you hadn't offered and admitted into evidence?
6
A. Well, I tried to ask questions, and my memory is
7
that the hearing officer said -- you objected, and he
8
sustained your objection. There were a lot of instances of
9
that. Some I attribute to the fact that I'm not an attorney
10
and maybe don't know how to lay a foundation to ask those
11
questions, and some I attribute to that there was -- I was
12
just not going to be able to ask questions about things that
13
the proponents didn't want asked.
14
Q. But ultimately isn't it true that that exhibit
15
you sought to have offered and you did offer was admitted as
16
part of the proceeding?
17
A. I don't know what its condition, what its status
18
was. There was some sort of something at the end where you
19
asked me, I believe, who the author was, and I cited -- I
20
read some of his credentials, and I said he was a respected
21
person, and I said that we can't bring these people -- we
22
can't -- citizens can't pay people to come to testify who
23
have done, I think, professional research. So, I think you
24
objected, and you wanted -- you said that, I believe -- and
59
Keefe Reporting Company
1
this is just from not very solid memory, but I think you said
2
that weren't the hazardous waste sites, and I said that I
3
thought landfills all take in hazardous waste because that's
4
the toxic chemicals that we get, and we had a discussion
5
about that. So -- But I don't think it was admitted as
6
evidence, no.
7
Q. You were asked to provide additional information
8
with respect to that report so that a determination could be
9
made as to the relevance of the information contained; isn't
10
that correct?
11
A. You asked me to provide something, yes.
12
Q. And did you ever provide that information?
13
A. I don't believe I did.
14
Q. Okay. Now, during the course of this hearing,
15
you -- and also the post hearing period, you submitted more
16
public comments; correct?
17
A. That's correct.
18
Q. And one of those public comments had to do with
19
the archaeological issues you wished to raise; is that
20
correct?
21
A. Some of the -- Are you talking about the one on
22
the coroner's report?
23
Q. If that's what you characterize as an
24
archaeological study, yes.
60
Keefe Reporting Company
1
A. Well, it was proof that there were burial remains
2
at the site, and it also indicated that the way that it was
3
being handled was not, I think, the way it should have been
4
handled according to the law, and I do know that I did not
5
see that coroner's report in what you submitted as the
6
archaeology report, but at least it was not in the documents
7
that were given to me before the hearing.
8
Q. What you just indicated to us were the contents
9
of the written comment -- a public comment that you submitted
10
during the post hearing public comment period; correct?
11
A. What I just said was what I had in my public
12
comment period, is that what your question?
13
Q. Yes. What you just described for us.
14
A. I believe so.
15
Q. Now, you're not contending here that you were
16
unable or prohibited from presenting any information
17
regarding archaeological issues; are you?
18
A. No, I'm not saying I was prohibited from
19
commenting on archaeological issues. I'm saying that a
20
report on the archaeology of the site was handed in at the
21
very end when we had no opportunity to question the person
22
who submitted the report, who compiled the report and to ask
23
the questions that we knew that were -- that had some
24
problems with procedure and results.
61
Keefe Reporting Company
1
Q. And, in fact, did you have any intention or plan
2
to present an archeological report or study during the course
3
of the hearing?
4
A. We were trying to get a report. I submitted what
5
Mr. Durako gave me. I gave that to Dr. Kelly. It was a file
6
that was large. Dr. Kelly tried to go through it, and he
7
made notes about different things. We were going to try to
8
get a report together that we could use and then also prepare
9
questions to ask the archaeology person about the report.
10
Q. When did you first contact Dr. Kelly about
11
reviewing any of the information in this siting application?
12
A. Well, Dr. Kelly and I were working together on
13
the 404, and, so, he knew about the 404, but as soon as I got
14
a copy of the archaeology files from Mr. Durako, I called Dr.
15
Kelly.
16
Q. When did you get that copy of the archaeological
17
document from Mr. Durako?
18
A. It was in the weeks before the hearing. I don't
19
remember the date. I'm sorry.
20
Q. Would it be fair to say it was in the early part
21
of December of 2006, a few weeks before the hearing?
22
A. It's fair to say that.
23
Q. And that's when you first had a discussion with
24
Dr. Kelly about the possibility of putting a book together to
62
Keefe Reporting Company
1
submit at the hearing?
2
A. Well, we didn't know -- We were looking for what
3
was found at the site and trying to get information from the
4
Illinois Historic Preservation Agency, talking to people at
5
the mounds, talking to other archaeologists who may know
6
things. I do not know who all Dr. Kelly talked to. We were
7
trying to find out what other people knew, but we did not
8
have the official archaeology -- the archaeologist's report
9
or -- Burns and McDonnell is an engineering firm, not an
10
archaeology firm. We didn't have their report.
11
Q. So, it would be accurate to say that Dr. Kelly
12
was aware of these different archaeological matters and
13
issues at least by the early part of December of 2006 when
14
you had the first discussion with him about the possibility
15
of submitting a report and siting information; correct?
16
A. Yes.
17
Q. And you at some point determined that you would
18
not present any report on archaeological issues at the
19
hearing because you had missed the deadline for submitting
20
such documents; correct?
21
A. That's correct. We were -- We had gotten the
22
documents, the archaeology file late, and he was going
23
through it. I'm not -- I don't have the technical background
24
to go through and to read it. So, he had to go through it,
63
Keefe Reporting Company
1
and he has classes and other things. So, he did as much as
2
he could. When I found out that there was not -- it was too
3
late to submit a report, I said, "We can't submit a report."
4
So, he gave me the questions that I was going to ask the
5
archaeologist about the different parts about what was wrong
6
with the waste or things that were done and try to figure out
7
where the mounds were because there are several that are
8
eligible for registry, national historic registry, to ask
9
questions about remains because archaeologists hear about
10
what's happening, but not everything is shared. There's not
11
like some place you can go out to find out what someone found
12
very easily.
13
Q. Did you talk with Dr. Kelly at all about the
14
public comment that you subsequently filed regarding
15
archaeological issues?
16
A. I gave Dr. Kelly a copy of the coroner's report
17
when I got it, and I think he had heard that they had found a
18
body or that they had found bones, remains or something, and
19
I don't believe that he knew what the details were, and I got
20
that from going to the coroner's office. I did not know how
21
else to get it.
22
Q. You prepared the public comment that addressed
23
the archaeological issues that you submitted; is that
24
correct?
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A. That's correct.
2
Q. Did Dr. Kelly have any input or provide any
3
information that you used in preparing that written comment?
4
A. I don't remember the comment. I haven't looked
5
at it lately. So, I couldn't answer that question just now.
6
Q. Did you make any determination that you would
7
file the comments that Dr. Kelly had given you to use in
8
cross-examining witnesses?
9
A. Would you repeat that? I'm sorry.
10
Q. Yes. Did you make any determination whether to
11
file the document, your notes that Dr. Kelly gave you for
12
your use in cross-examining witnesses? He gave you these
13
files as a public comment?
14
A. Well, I have no -- It's not my document. I have
15
no way of saying what it is, of proving what it is when I
16
hand it in. So, I --
17
Q. So, would it be fair to say you made the
18
determination not to file the document that Dr. Kelly had
19
given you?
20
A. I don't remember there was a determination made.
21
I'm not sure what my thinking was about it. I knew that it
22
was a big file, and that it had lots of sticky papers with
23
his notes on, and it was a challenge. So, I don't know -- I
24
didn't have the ability to write a report and assess what it
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was.
2
Q. Did you ask Dr. Kelly to prepare a written
3
comment or submission that could be filed as part of the
4
siting process?
5
A. I think Dr. Kelly wrote a letter of comment from
6
the Powell Archaeological Research Center. I don't think he
7
compiled a report.
8
Q. Did you ask him to prepare that letter?
9
A. I don't think so.
10
Q. Did you talk to him about his preparation of such
11
a letter?
12
A. We discussed -- We discussed it there. We
13
discussed it at meetings that we have. I mean, there were
14
many -- There was a lot of concern about the archaeology on
15
the site, about the Indian remains.
16
Q. Did you review his letter before he filed it?
17
A. No, I did not.
18
Q. So, you never saw it until after it was filed?
19
A. I did not see it until I picked up the comment
20
from Madison City's office when I got the -- when I saw that
21
the archaeology report was there. So, I think that that's
22
the first time I saw that letter and the archaeology letter,
23
and I'm not sure when I saw that the Mayor had responded to
24
them.
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Q. So, you somewhat became aware that Dr. Kelly was
2
submitting his own letter; correct?
3
A. I think I knew he might be doing that. I don't
4
remember -- I don't remember because he was out of town for a
5
lot of that period. I think he was doing some archaeology
6
somewhere. So, I don't really have a lot of memory of the
7
details of that period, what was done when or --
8
Q. Did you ask Dr. Kelly to attend the siting
9
hearing?
10
A. I think that I had hoped that he would, but I
11
think that he was unable to. I think he was out of town. I
12
think my memory is that -- it may not be correct, but I think
13
that was -- he was visiting family at Christmas.
14
Q. Did you consult with any person with respect to
15
the wetland issues you wished to raise with regard to the
16
site?
17
A. Did I consult with anyone?
18
Q. Yes.
19
A. I talked with Mr. Brensman (phonetic). I talked
20
to a lot of people who are concerned about wetlands. I
21
talked to people who are concerned about -- I talked to
22
people with 404 knowledge.
23
Q. Did you talk with any individual about preparing
24
a letter or any written document addressing the wetland
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issues you thought were important at the site?
2
A. You mean an expert?
3
Q. An expert or anyone who's knowledgeable about
4
wetlands who can prepare a document that would set out those
5
issues as you saw they were important at the siting hearing?
6
A. I talked to someone, and I don't remember his
7
name, but I believe he submitted a comment, although I think
8
it was late. He was an academic from somewhere, but it
9
was -- We had a discussion, and he submitted something, but
10
it was difficult for me to understand what he was saying.
11
Q. Did you ask that person to attend the siting
12
hearing?
13
A. No. I did not know about that person.
14
Q. But your understanding is that this person did
15
submit a written comment during or maybe after the post
16
hearing comment period?
17
A. It's my understanding. He had offered to come,
18
but it was too late.
19
Q. That's because you didn't learn about the hearing
20
until the -- or the ordinance until the 18th?
21
A. No. I didn't know about the man.
22
Q. Of the four written comments that you submitted,
23
did any of them address wetland issues?
24
A. Well, the soil survey is all about wetlands and
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floodplain and soil chemistry composition.
2
Q. So, in fact, one of your written submission did
3
address the wetland issues that you thought were important
4
regarding the siting area; correct?
5
A. It addressed the soil issues. It did not -- I'm
6
not remembering whether I read it recently. I don't know
7
that it talked about flood storage ability of wetlands or
8
what mitigation was on the site because I know that there's
9
been mitigation on the site, and that's a question I would
10
have asked the wetlands expert. When you put -- Where is the
11
landfill going to go? Is it going to interfere with any
12
mitigation that's there now from other impacts to wetlands?
13
How is it going to -- Just the fact that you're taking
14
wetlands. Those are all questions I would have asked of the
15
wetland expert.
16
Q. Are you aware that with respect to the
17
archaeological issues you sought to raise at the siting
18
hearing, that it was the position of the applicant that any
19
such issues were not properly considered as part of the
20
siting ruling process?
21
A. That's what you said.
22
Q. Are you aware of what the regulatory scheme is to
23
address archaeological issues in the State of Illinois?
24
A. Scheme?
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Q. Well, regulatory set up, for instance, agencies
2
who review these issues. Do you have any understanding or
3
knowledge as to any of that?
4
A. Well, there are various components, and I'm
5
certainly not an expert on that. Because it's also a wetland
6
site, archaeology falls under the federal rule, and that's
7
triggered -- triggers -- I forget the law that it triggers
8
about confrontation with tribes. Without the 404 permit, if
9
there's not federal permitting, the State -- the Illinois
10
Historic Preservation Agency, and I'm not sure -- I think
11
there's a lot of latitude sometimes given. So, I'm not
12
really sure of all the law.
13
Q. But you are familiar with the Illinois Historic
14
Preservation Agency and their role in considering these
15
issues?
16
A. I certainly am.
17
Q. And with respect to the wetlands issues, you've
18
already referred to the 404 permit process?
19
A. Correct.
20
Q. Is that indeed the regulatory format in which
21
wetland issues are addressed at this type of proposed
22
landfill site?
23
A. Well, I believe Phillip -- I'm not sure if it's
24
been gutted or not, but I think the US EPA also has
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jurisdiction over the floor on wetland issues.
2
Q. And was it your understanding that the position
3
of the applicant is that those kind of wetland issues are
4
more properly addressed by the agency and the Corps of
5
Engineers and part of the 404 permitting process; that's the
6
reason why we did not believe those issues were properly
7
considered at the siting hearing?
8
A. That's my understanding of your reading. Our
9
understanding is that those things go to the very heart of
10
the compatibility.
11
Q. You mentioned also that you became aware that
12
there was a written comment filed by the applicant that
13
related to archaeological investigations done at the site; is
14
that correct?
15
A. That's correct.
16
Q. I believe you said that your understanding is
17
that that written comment was filed on the last day of the
18
public comment period?
19
A. Close to the last day or the last day. I'm not
20
sure.
21
Q. Did you read that written comment?
22
A. Did I read it?
23
Q. Yes.
24
A. I don't think I read the whole entire.
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Q. Were you aware that the comment was submitted
2
with the expressed statement that it was not a necessary or
3
relevant consideration for the local siting hearing body to
4
consider, but was submitted only because the issue had been
5
raised by ABC and the Sierra Club, and it felt it was
6
appropriate to at least describe the investigative work and
7
fieldwork that had been done to that date with respect to
8
those issues; were you aware of that?
9
A. I'm aware that that's your contention that it's
10
not relevant. It's not the feeling of the Native Americans
11
who are members of ABC. It's not the feeling of ABC, and we
12
think it's a very relevant issue.
13
Q. Did you read the written comment that was
14
submitted by the applicant as it related to the 404
15
permitting issues?
16
A. Mr. Harding's comments.
17
Q. Yes.
18
A. I think I skimmed it. I don't know that I read
19
everything.
20
Q. Did you note in your review of that submission
21
that the statement was clearly set out that it was not the
22
appropriate conclusion that the letter was in any way
23
necessary or even relevant to the issues in the siting
24
hearing; it was simply to describe information purposes to
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identify the steps that had been taken to date as part of the
2
404 permitting process?
3
A. I read that he said that, and I do not agree. I
4
think that is your contention, and that's part of what we are
5
saying is not right, because it's like when you just put it
6
at the end and say you're doing it because we brought it up,
7
you're circumventing it. You're circumventing us from being
8
able to question those people. And the Mayor says in the
9
letter to the two archaeological groups that he made a
10
decision that those -- that report was enough for him, and he
11
didn't want to hear what the archaeology groups, the
12
professional archaeologists, who had been working on this for
13
many, many years, he didn't want to hear that. So, I think
14
that's fundamentally unfair, sir.
15
Q. So, would it be accurate to say that your
16
contention is that you were negatively affected in your
17
ability to cross examine Scott Schanuel because there was no
18
report filed on archaeological issues by the applicant?
19
A. I'm sorry?
20
Q. Is it your contention that your ability to cross
21
examine Scott Schanuel was negatively affected by the fact
22
that the applicant did not file a written report describing
23
its archaeological investigations at the site?
24
A. It's our contention that we were unable to
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question Mr. Schanuel because you said that he's not the
2
archaeology person, and we tried to ask archaeology
3
questions, yet you had no archaeology person, and you
4
submitted an archaeology report at the very end that we could
5
not refute, rebut or question.
6
Q. Is that the extent of your contention with
7
respect to your ability to cross examine Mr. Schanuel, what
8
you just stated?
9
A. Is it the extent? I don't think so. I mean, I
10
tried repeatedly to ask him on specific issues. He's a
11
planner, a land use planner, and that's what he was, I
12
believe -- I can't think of the word I want, but that's what
13
you certified him as, that that was his field of expertise,
14
and I think my understanding of land planners from my work in
15
various growth issues and land use planning is that they have
16
to take account of what is at a site, what is adjacent to a
17
site, what the potential -- or what's going to happen to
18
around the site while this landfill is in use, and he
19
admitted that that didn't happen, not while the landfill is
20
open for 19 years, and he admitted that he did not do other
21
kinds of things that were -- that should have been required
22
for how the landfill would impact the area around and the
23
land use as it is.
24
Q. In addition to Mr. Schanuel, are you contending
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your ability to cross examine any other witness was
2
negatively affected?
3
A. I think it was a challenge to try and question
4
Mr. Connor, who -- I'm sorry -- but I think that the
5
information presented on floodplain and the site being in the
6
floodplain and a map that you all contended -- a floodplain
7
map that you all contended in the last siting hearing for
8
Milam you said was an inaccurate map, and then you go and use
9
this map at this hearing as it is the truth, and I think that
10
you made it very difficult for us to ask questions, and just
11
declaring that it's not in the floodplain without showing
12
proof that it's not in the floodplain, I think that made it
13
difficult for us.
14
Q. Would it be accurate to say that you are claiming
15
that your ability to cross examine Mr. Connor was impaired
16
because of your belief that we did not submit sufficient
17
information to establish that the facility was not within a
18
hundred year floodplain?
19
A. That's correct.
20
Q. Was there anything else about your ability to
21
cross examine Mr. Connor that was impaired or restricted?
22
A. I do not -- Nothing comes to mind right now, but
23
I can't exclude that there wasn't.
24
Q. Were you negatively affected in your ability to
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cross examine any other witness who was presented in the
2
siting hearing?
3
A. Negatively impacted by how?
4
Q. I'm asking if that's your contention. I don't
5
presume to know how someone was restricted in their ability
6
to cross examine someone. I'm asking you. Were there other
7
witnesses that you are contending you could not effectively
8
cross examine?
9
A. Oh, I was unable to effectively cross examine
10
people because the lack of technical background, but that's
11
not something I can do anything about or you can.
12
Q. We would all agree to that. Are there any other
13
witnesses that you're contending your right or ability to
14
cross examine was negatively affected, other than Mr. Connor
15
and Mr. Schanuel, as you've already indicated?
16
A. You mean the witnesses who testified, not
17
Mr. Harding?
18
Q. Right. We're not talking about your ability to
19
cross examine witnesses who never testified, that would be
20
correct.
21
A. Mr. Dennison.
22
Q. And in what way were you negatively affected in
23
your ability to cross examine Mr. Dennison?
24
A. Well, from my understanding from both Dr. Kelly
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and from the application and from an archaeologist I've
2
talked to since then, there's a huge safety issue, in that
3
the landfill as it's supposed to be constructed lies along
4
side -- I was wondering why it was a strange shape, but it
5
lies along a pipeline. When I asked who I could question
6
about the pipeline, you brought Mr. Dennison out, and he
7
seemed -- he said he did not consider it, he did not know who
8
owned it, he did not know the nature of it, and I find it
9
hard to believe that -- he seems a very capable engineer --
10
that he would not know those things or that Waste Management,
11
who is a big, important company, would not have addressed
12
those issues.
13
Q. So, is it accurate to say that your contention is
14
that your ability to cross examine Mr. Dennison was
15
negatively affected because he did not have, in your view,
16
the level of knowledge that you would have liked to have been
17
able to inquire about?
18
A. No, I didn't say he didn't have the level of
19
knowledge. I said he did not provide information.
20
Q. Is it your understanding that any part of this
21
facility boundary is within or includes that pipeline?
22
A. What you've told me or what -- whoever was there,
23
I think Mr. Dennison said it's 200 feet away.
24
Q. So, the pipeline that you wanted to ask about was
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200 feet away from the facility boundary; correct?
2
A. The archaeologists that have looked at the maps
3
and know much more about such situations than I do think it's
4
a big deal.
5
Q. That wasn't my question. My question is, is it
6
accurate to say that the pipeline that you were concerned
7
about was located at least 200 feet away from the facility
8
boundary?
9
A. I do not have personal knowledge of that. That's
10
what you told me. The way they described it to me, it's
11
along the boundary.
12
Q. Were there any other witnesses who you claim your
13
ability to cross examine was negatively affected?
14
A. I'm not sure that there is, but -- I'm not sure
15
that there is.
16
Q. As you're sitting here now, you do not recollect
17
that there were any other witnesses for whom you claim that
18
was --
19
A. I thought about it for a minute, and I can't come
20
up with anything, but I'm not -- I don't discount that I
21
might not just be thinking of it at this moment.
22
Q. Are you contending that the decision rendered by
23
the City of Madison was fundamentally unfair?
24
A. Are we contending that the decision was
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fundamentally unfair?
2
Q. Yes.
3
A. I think they're contending they didn't make a
4
decision.
5
Q. When you say the City of Madison did not make a
6
decision, would you describe for us what you mean?
7
A. Well, I think that the -- And I don't know that
8
I'm going to have all of this correct, but it's my
9
understanding that the vote for siting must be based upon --
10
that each of the criteria -- of those nine criteria must be
11
proven, and it must include their findings, and the City of
12
Madison voted as at a city council meeting, and there's few
13
sentences in a middle of the city council minutes, and there
14
was -- when we went to get a copy of the -- because we read
15
about that there was a vote, and we went to get a copy of the
16
decision, there was no decision, and that's what we were
17
given was the three-page copy of the minutes with a few lines
18
about the vote.
19
Q. So, is it your contention that the City of
20
Madison did not follow appropriate procedures in reaching its
21
decision granting siting approval?
22
A. I'm saying that I don't believe that they did
23
have siting approval. I can't talk about the reaching part.
24
I mean, they voted. I wasn't there. I didn't hear what was
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discussed or anything with the reaching. All I know is that
2
they did not submit a decision and the reasons for their
3
decision that they complied with all the nine criteria.
4
Q. So, your contention is that the City of Madison
5
did not render a decision on the siting application?
6
A. That's correct.
7
Q. Can you describe for us why the action taken by
8
the City of Madison was inappropriate or improper?
9
A. Well, if the citizens or anybody don't have a
10
proper decision, then they don't have the ability to appeal.
11
They have to know what it is that they're appealing, and they
12
have to know when the decision was made because there's a
13
certain timeline -- I'm not for sure, but maybe 35 days or
14
something -- after which they must -- or during which they
15
must appeal, and if you're waiting for that decision and the
16
decision document, and then they're counting the vote that
17
they took as the decision, and you blow your 35 days, then
18
you're out of luck. So, we chose and the Pollution Control
19
Board accepted that a vote -- we could appeal from that vote,
20
even though there was, in our view, no decision rendered.
21
Q. So, you're saying that the steps taken by the
22
City of Madison here may prevent an interested party or
23
citizen from appealing a decision or a punitive decision made
24
by the City of Madison; correct?
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A. Yes.
2
Q. And, yet, you're here having filed this appeal
3
and presenting your case before the Pollution Control Board;
4
correct?
5
A. And because we decided that we better because we
6
didn't know -- You could -- I think there's in the law that
7
if the City doesn't render its decision within so many days
8
after you submit your application, then it's automatically
9
deemed granted, the application of the siting is granted.
10
So, if we wait around and we don't appeal within that time,
11
then they can grant it, and we lose all our rights, and I
12
think that's fundamentally unfair.
13
Q. So, if you're right that the City did not take
14
the proper steps to decide this appeal, we should be arguing
15
in this case that there should be a deemed approval, we
16
shouldn't be going through this exercise; is that correct?
17
A. That's a decision for the Pollution Control
18
Board.
19
MR. MORAN: Thank you, Miss Andria. I have no further
20
questions.
21
HEARING OFFICER WEBB: Mr. Papa, do you have any
22
questions?
23
MR. PAPA: Yes, ma'am. Thank you.
24
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C R O S S E X A M I N A T I O N
2
by Mr. John Papa:
3
Q. Miss Andria, I'm John Papa. You and I have met
4
several times before.
5
A. Yes, sir.
6
Q. I'd like to ask some follow-up questions. If I'm
7
not clear in my questions, would you be kind enough to ask me
8
to restate them or rephrase them?
9
A. Yes, sir.
10
Q. Thank you. Ma'am, a good portion of what I'd
11
like to talk to you about and we'll go back over the attempts
12
you made to obtain information --
13
A. I can't hear you.
14
Q. -- attempts you made to gain information from the
15
City about the process that was ongoing concerning this
16
application. Just so we have a good understanding about this
17
process, you had known of the intent of Milam to expand this
18
landfill for some months before the hearing in December of
19
2006; correct?
20
A. That's correct. And I want to correct what
21
you're saying. We are contending that it's not an expansion,
22
that it's a whole new landfill.
23
Q. That's fine. I don't take exception to whatever
24
you want to characterize it as yourself. However, the
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application was not something that was a surprise to you
2
several months before this hearing in December of 2006;
3
correct?
4
A. Was the application a surprise to me?
5
Q. Yes.
6
A. The application, I knew that it was coming.
7
Q. That application -- in fact, you obtained a copy
8
of that application, which is several inches thick, and I
9
believe you indicated from Mr. Durako; is that correct?
10
A. I don't know if it was from Mr. Durako or from
11
Miss Livingston, but, yes, Waste Management provided us with
12
a copy of the application.
13
Q. And that was how many months before the hearing
14
in December, do you remember?
15
A. I do not remember.
16
Q. Is it fair to say that it was at least two or
17
three months before the hearing?
18
A. I do not know.
19
Q. You've raised issues of fundamental fairness, and
20
I gather that one of the aspects of fundamental fairness that
21
you believe is important in this process is to make sure that
22
the people involved in the decision-making process be given
23
enough information as far in advance as possible so they can
24
react to the information and take appropriate action; is that
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right?
2
A. Are you talking about the City or a citizen? I
3
don't understand your question.
4
Q. Well, let's talk about that. In this instance,
5
what is your understanding as to the role of the City when
6
one of these applications for a siting approval is filed;
7
what's the City supposed to do?
8
A. The City -- There's rules about what the City is
9
supposed to do and what they have to do.
10
Q. Is it your understanding that the role of the
11
City is to actually make a decision as to whether the
12
application should or should not be granted or approved?
13
A. It's my understanding that the role of the City
14
is to decide whether the applicant has met all nine criteria
15
that are required under the law of the State of Illinois.
16
Q. And does your understanding of the process
17
include the fact that, in addition to receiving information
18
from the applicant, the process provides for opportunities to
19
members of the public to provide information to the City for
20
consideration?
21
A. I believe that there's a very fine line of the
22
citizens in interacting with the City until the public
23
comment period. I think that you're not supposed to discuss
24
it -- The decision-making body is not supposed to discuss the
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application because they're the decision makers.
2
Q. But you understand that private citizens are
3
given a role in presenting information to the City for
4
consideration; are you not?
5
A. In the public comment section in the hearing,
6
yes.
7
Q. The hearing and the public comment section;
8
correct?
9
A. Yes.
10
Q. Now, the law, as you understand it, doesn't limit
11
citizen participation to citizens of the municipality itself;
12
does it?
13
A. That's correct.
14
Q. That's how you got to be involved in this; isn't
15
it? You don't live in Madison; do you?
16
A. I do not.
17
Q. Okay. You've got members of your organization
18
who have grown up in Madison, though; correct?
19
A. We have members who have -- either live or have
20
lived in Madison, yes.
21
Q. You understood that fundamental fairness gave
22
these citizens an opportunity during the hearing and during
23
the public comment period to give information to the City of
24
Madison so that they could consider that in making its
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decision as to whether to approve the application or not;
2
correct?
3
A. Correct.
4
Q. And you knew that months in advance of this
5
hearing in December of 2006; didn't you?
6
A. Did I know that the citizens could participate?
7
Q. Yes.
8
A. Yes.
9
Q. And you knew the citizens could introduce
10
evidence into the hearing; correct?
11
A. I think that's a difficult thing. I think it's
12
provided for, but it's a difficult thing to accomplish in
13
reality.
14
Q. Well, you said that ABC, your organization, has
15
over a hundred members; right?
16
A. Yes.
17
Q. Some of those members are professionals, like an
18
archaeologist like Dr. Kelly; correct?
19
A. Right.
20
Q. I presume other ABC members have other expertise
21
that they are in possession of; correct?
22
A. Some of them do.
23
Q. How about yourself? Let's talk about your
24
background. What is your educational background?
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A. May I ask the relevance of the question?
2
Q. No. I think it's a legitimate question.
3
HEARING OFFICER WEBB: Do you not want to give your
4
educational background?
5
A. I have a degree in art history, I have graduate
6
work in math communications, and I have a lot of work in
7
political science.
8
9
BY MR. PAPA:
10
Q. Do you have any engineering background?
11
A. Absolutely none.
12
Q. Do you have any scientific background?
13
A. Absolutely none. Nor legal.
14
Q. Did you understand well in advance of this
15
hearing in December of 2006 that you personally would not be
16
qualified to render opinions about issues relative to
17
archaeology?
18
A. I'm sorry. Render opinions?
19
Q. Opinions, yes, about archaeological issues that
20
might impact this siting application.
21
A. Oh, absolutely not. I think that anybody with
22
any sense when you hear that there are mounds prehistorical
23
ancient Indian mounds, when something is close to the
24
2,000 feet from an archaeological world heritage site --
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there aren't many of them in the world -- when there are
2
Indian remains found, I think anyone without an archaeology
3
degree can decide whether that's appropriate or not to put a
4
landfill and dump garbage on it.
5
Q. Well, I'm not asking you about your opinions
6
about what may be appropriate or not generally. I'm wanting
7
to know whether you have expertise where you can give
8
opinions to a reasonable degree of scientific certainty about
9
the impact or effect that this landfill might have on the
10
site where it was being proposed to be located?
11
A. I know how to do research, I know how to question
12
experts, I know how to gather information, and I know how to
13
present it. Just because I present something, it doesn't
14
mean that it's necessarily invalid because I don't have a
15
degree.
16
Q. Would that opinion be true also for wetlands
17
issues that might come up in one of these siting
18
applications?
19
A. What, that I don't have a valid opinion on
20
wetlands?
21
Q. That you're not qualified to express your
22
opinions to a reasonable degree of scientific certainty in
23
reference to those issues.
24
A. Well, I was asked to testify in front of a house
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government, a committee on government reform on wetlands.
2
That gives me some credibility. I've worked on wetlands
3
issues for a long time. I know their value, and I certainly
4
know the record and the history of Mr. Harding and the record
5
of wetlands destruction in the American Bottoms.
6
Q. Are you taking the position today that you are an
7
expert in wetlands science?
8
A. No, I'm not.
9
Q. Given your background and history in this kind of
10
work where you have participated in siting application
11
processes in the past, you understood generally speaking that
12
at a hearing, witnesses presented on behalf of the applicant
13
would be testifying; correct?
14
A. Correct.
15
Q. You understood that witnesses could be called by
16
people in opposition to the application to testify; correct?
17
A. I'm a little fuzzy on that part.
18
Q. Well, when you read the ordinance that you picked
19
up at City Hall --
20
A. 1670.
21
Q. -- 1670, you certainly saw there that, in
22
addition to submitting documents, that you would be allowed
23
to present testimony as to any issues you felt were relevant
24
to the application itself; correct?
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A. I don't remember that part of it, but I'm sure
2
it's there.
3
Q. Well, from your experience in other hearings, you
4
knew that people could come and testify, could be called to
5
testify about the application itself; correct?
6
A. I'm not clear that people can -- that we as
7
citizens can call someone to testify. I think that involves
8
subpoenas and all other kinds of things. If someone
9
voluntarily wants to testify, that's a whole other thing, but
10
to call a witness, I don't think you can do that.
11
Q. That's your understanding, that you don't have
12
the right to have a witness testify if you asked them to come
13
and testify?
14
A. No, that's not what I said.
15
Q. So, you do believe that if you asked someone to
16
come and testify, they could testify at a hearing such as was
17
conducted in December of 2006?
18
A. I do believe that if someone wants to come
19
testify, that they can do so, yes.
20
Q. And this case reflects that some people did come
21
up and give statements about their feelings concerning this
22
application during that hearing; correct?
23
A. I don't believe anyone testified. I believe the
24
comments that were held that they strangely called being the
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meeting, I believe all of those were public comments without
2
testifying. And, so, those, my understanding, receive lesser
3
weight.
4
Q. You didn't hear anyone that asked to testify be
5
denied the opportunity to testify during that hearing; did
6
you?
7
A. I don't believe so.
8
Q. You mentioned that there was a part of the
9
hearing that you didn't think was properly noticed; is that
10
correct?
11
A. That's correct.
12
Q. Just so the record is clear, you indicated that
13
you first heard about that from the Corps of Engineers;
14
correct?
15
A. Correct.
16
Q. Would you agree with me that you came to
17
understand after you began to attend the hearing that was
18
properly noticed, which you acknowledge; correct?
19
A. The daytime part, yes, it was properly noticed.
20
I believe so. I didn't look into it that it was or wasn't,
21
but --
22
Q. You haven't challenged it; correct?
23
A. No.
24
Q. So, you got a notice about a hearing?
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A. No, I did not get a notice. I got an e-mail.
2
Q. You received information that informed you that
3
this hearing was going to take place beginning at what, 9:00
4
o'clock in the morning?
5
A. No, no, no.
6
Q. I'm talking about the notice for the hearing that
7
was published in the newspaper.
8
A. Okay. The notice -- I don't believe I saw the
9
notice. I know I said that in the deposition, but I don't
10
believe I saw that notice in the paper, because I believe
11
Miss Livingston called me to tell me it was going to be on
12
the Belleville paper on a certain date, and it wasn't. I
13
believe I saw or heard from somebody who saw an article that
14
it was going to be. So, I'm not sure that I saw the public
15
notice that was in the paper. But you're talking about for
16
the regular hearing, not for the one that the Corps of
17
Engineers attended; right?
18
Q. Well, I'm talking about the hearing that began on
19
Thursday morning, I believe, at 9:00 o'clock. Okay?
20
(Witness nods head.)
21
Q. You had gotten information about that hearing was
22
going to take place; you believe that the information in the
23
notice was sufficient and complied with the law; correct?
24
A. I believe so.
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Q. And you showed up at 9:00 o'clock for that
2
hearing to begin; correct?
3
A. I did.
4
Q. And at that time or shortly thereafter, you found
5
out that there was going to be an extension from that date
6
after 5:00 o'clock if people wanted to come and attend
7
another session of that hearing later that evening; correct?
8
A. I don't know that I found that out then. I think
9
I remember that I got an e-mail the evening before, late in
10
the afternoon from Keith McMullen from the Corps of
11
Engineers, and I don't remember the contents of the e-mail,
12
but it said something about the Corps was inviting us to come
13
to a public hearing in the City of Madison on the Milam. I
14
don't remember the specific wording. I think that was the
15
first I heard that there was a separate public hearing on
16
that night.
17
Q. All right. So, this hearing that you're deeming
18
a separate hearing was a hearing that took place the day on
19
which a notice was issued about the hearing taking place on
20
this application; correct?
21
A. It was on the evening of the day that the public
22
hearing started at 9:00 o'clock.
23
Q. In your experiences with these public hearings,
24
you know that sometimes the public hearings are conducted
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during the day; correct?
2
A. Correct.
3
Q. Sometimes those public hearings are conducted
4
during the evening; correct?
5
A. Correct.
6
Q. Sometimes they're conducted both in the morning,
7
afternoon and evening of a particular day; aren't they?
8
A. I am aware that that has happened. I don't know
9
that I've been at one that's gone day -- morning, afternoon
10
and evening. Maybe on a continuous basis. I'm not sure. I
11
can't remember that I was involved in one, but I can't be
12
sure that I was.
13
Q. In any event, you were able to attend all of
14
these hearings personally yourself both on Thursday and then
15
the next day, on Friday; correct?
16
A. That's correct.
17
Q. Now, let's go back to the Friday before the
18
hearing when you went to or you called the City Hall and
19
spoke with an individual about the hearing and whether you
20
had to preregister for the hearing; right?
21
A. Yes.
22
Q. You were prompted to make that phone call by
23
what?
24
A. I think I had a conversation with Miss Livingston
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that she said there might be something that you have to do
2
before the hearing.
3
Q. So, you had been in communication with counsel
4
for Waste Management in the days and weeks leading up to that
5
date about the application?
6
A. I wouldn't put it on a regular basis. I had
7
periodically conversations or meetings.
8
Q. You also -- Well, had you remembered at that time
9
that in the prior siting application that you participated in
10
at the City of Madison -- and I'll represent to you it was
11
back in 1995 -- that the City had, in fact, adopted certain
12
rules and regulations about the hearing and how it was going
13
to be conducted?
14
A. Are you asking me if I remember?
15
Q. Had you remembered that back around that time?
16
A. I only remembered it after I saw the ordinance.
17
MR. PAPA: Madam Hearing Officer, may I approach,
18
please?
19
(Hearing Officer Webb nods head.)
20
21
BY MR. PAPA:
22
Q. Ma'am, I'd like to show you what I've marked as
23
City of Madison Exhibit No. 1, and ask you if you recall this
24
to be Ordinance Number 2158 of the City of Madison adopted on
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July 5th, 1995 relative to a procedure for approving a
2
regional pollution control facility site in the City; is this
3
a document that you had familiarized yourself with years
4
before this hearing in December of 2006?
5
A. I remember that there was an ordinance back 10
6
years ago, 12 years I guess it is. I don't remember what was
7
in the ordinance. I do remember taking the document back
8
things -- different things on hazardous waste, incineration
9
and different things to the City.
10
Q. You remember back in 1995 that you actively
11
participated in a hearing before a hearing officer by the
12
name of William King during a hearing that spanned several
13
days; correct?
14
A. You reminded me of that during the deposition,
15
and I could not come up with his name or remember a lot about
16
it. I remember some things very vividly from that time. I
17
did not remember Mr. King. I'm sorry.
18
Q. So, when you obtained the Ordinance Number 1670
19
from the Clerk of the City of Madison and looked at it, did
20
that refresh your recollection that, in fact, Madison had a
21
similar ordinance back in 1995 when you participated in that
22
siting application hearing?
23
A. Yes, it did.
24
Q. Now, do you remember back from 1995 that the
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hearing officer, Mr. King, did make certain rulings that
2
related to the application of the rules that were set forth
3
within the ordinance about admission of evidence and
4
documents and exhibits?
5
A. I'm sorry, Mr. Papa, but I do not remember.
6
Those are the things that I do not remember about that.
7
There are things that I do remember about that time, but I do
8
not remember Mr. King's rulings.
9
Q. Let me see if I can refresh your recollection.
10
MR. PAPA: And this would be, Madam Hearing Officer, the
11
Court can take judicial notice of since it is part of the
12
findings of the hearing officer, Mr. King, that would be part
13
of the record of the Pollution Control Board from back during
14
that period of time.
15
HEARING OFFICER WEBB: The ordinance you mean?
16
MR. PAPA: No. His findings that were made part of the
17
record in the appeal of that process.
18
HEARING OFFICER WEBB: Okay.
19
20
BY MR. PAPA:
21
Q. The case number -- I don't have that -- I think
22
it's 3-14-95, but on September 11th, 1995, Mr. King rendered
23
certain findings that included the following, on Page 10:
24
"It will be noted that in compliance with Rule 13 of that
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ordinance, providing that the rule shall be interpreted
2
liberally by the hearing officer, and that the hearing
3
officer has power to bury the rules and deviate therefrom
4
when deemed necessary by him in order to conduct the public
5
hearing consistent with fundamental fairness. The hearing
6
officer, in fact, did not require the proponents or opponents
7
of the application to strictly follow the ordinance, but, for
8
instance, granted opportunity for verbal cross examination by
9
both the proponents and opponents, permitted the introduction
10
of exhibits which were not previously marked or offered for
11
evidence, permitted the testimony of witnesses not named on a
12
witness list submitted to the hearing officer prior to the
13
hearing, and generally permitted the proponents and opponents
14
to offer into evidence provided it's all verbal testimony and
15
documentation presented by both sides during the public
16
hearing process or in the 30 days following the conclusion of
17
the public hearing." Do you recall -- Does that refresh your
18
recollection at all as to how the hearing officer back in
19
1995 conducted that hearing that involved an application
20
before the City of Madison?
21
A. Again, I have some very vivid memories of that,
22
and those were not of my memory of that time, but I remember
23
Mr. King briefly as to what he did, and that I think he was
24
an attorney in Edwardsville, but I really don't remember.
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That was 12 years ago. And I don't remember that hearing in
2
terms of how it was conducted by Mr. King.
3
Q. Well, you will agree with me, will you not, Miss
4
Andria, in Ordinance 1670, it specifically relates that, "The
5
hearing officer shall make all decisions and rulings in
6
accordance with 40.1 of the Act and fundamental fairness"; do
7
you recall that portion of the ordinance?
8
A. If you're reading from it, I'm sure it's there.
9
Could I ask one question? Is 1670 -- And are you submitting
10
this to the record is, this 1670 in the record?
11
HEARING OFFICER WEBB: Please just answer the question
12
that's asked. Mine is labeled 1258.
13
MR. PAPA: This is the old one.
14
HEARING OFFICER WEBB: Oh, okay. Thank you for the
15
clarification.
16
17
BY MR. PAPA:
18
Q. You mentioned 1670. And yesterday you remember
19
giving a deposition?
20
A. Yes.
21
Q. And I asked you to bring to the hearing today a
22
copy of any documents you received from the City of
23
Madison --
24
A. Yes.
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Q. -- correct? You received -- You're acknowledging
2
you received Ordinance 1670; do you not?
3
A. Yes.
4
Q. You didn't bring that today; did you?
5
A. Did I?
6
Q. I'll show you what your counsel had given to me.
7
A. If I didn't bring it, then I didn't have it, or I
8
couldn't find it.
9
Q. Ma'am, is my understanding correct, that one of
10
the reasons that you believe the process conducted by the
11
City of Madison was not fair to you is because you weren't
12
allowed to introduce evidence that you wanted to introduce at
13
this hearing?
14
A. That was one of the things that we thought was
15
unfair.
16
Q. Part of the evidence that you wanted to introduce
17
was archaeological evidence; correct?
18
A. That's correct.
19
Q. You knew about issues relative to archaeological
20
matters related to this site, at least in your mind, well in
21
advance of the hearing; didn't you?
22
A. Did I know about archaeology matters on the site
23
in advance of the hearing? Yes.
24
Q. You probably tried to bring those back up with
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the Fairmont City application several years ago; correct?
2
A. I know that archaeology was brought up. I think
3
it was a member of the community that brought up putting
4
landfills and garbage on Indian mounds. She was of Native
5
American heritage. I don't remember specifically that we
6
were -- Since it was a vertical expansion and not a
7
horizontal expansion, I don't think we went into a lot of
8
what was going to happen destroying additional land on the
9
ground.
10
Q. Would you agree with me that the person you were
11
getting most of your information from in terms of these
12
archaeological issues is probably Dr. Kelly?
13
A. Well, also the archaeologist at the mounds.
14
There are several archaeologists at the mounds.
15
Archaeologists that I've talked to with some of the
16
university, not just Dr. Kelly, no.
17
Q. Well, what you've brought here today, this
18
Plaintiff's Exhibit 11, that you're asking to be introduced
19
into this record, your representation is that these three
20
pages, Exhibit 11, are your notes based upon what Dr. Kelly
21
was telling you about this site and issues that he felt
22
needed to be raised about the archaeology issues relative to
23
this site; correct?
24
MR. MORRISON: Object to the question. It lacks
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foundation. That was not her prior testimony that those were
2
her notes.
3
4
BY MR. PAPA:
5
Q. Perhaps I need some clarification then. What is
6
your purpose in introducing Plaintiff's Exhibit 11? What's
7
this supposed to be?
8
A. You asked me, I believe, at the deposition
9
whether I was prepared, whether we had done -- and you were
10
trying to insinuate or Mr. Moran was -- I'm not sure -- that
11
we weren't preparing any information and questions with
12
regard to the hearing and archaeology, and those are Dr.
13
Kelly's -- some of Dr. Kelly's notes on some of the things he
14
found to question in the archaeology report that was handed
15
in at the end of the hearing, and he got those from the notes
16
that were filed that Mr. Durako gave to me. He looked
17
through that, and he --
18
Q. I'm really confused now. I thought you testified
19
yesterday that you had --
20
MR. MORAN: Tuesday.
21
A. Tuesday.
22
23
BY MR. PAPA:
24
Q. I'm sorry. Thank you. I thought you indicated
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in your deposition on Tuesday that you had meetings or phone
2
calls with Dr. Kelly, and you had made some personal notes
3
that you intended to use at the hearing to cross examine
4
people. Is that what these notes are?
5
A. No. That was Dr. Kelly's notes.
6
Q. So --
7
A. And I was going to use them with some other
8
things that are with pink stickies to question the
9
archaeologist on parts of the archaeology report that was in
10
question and that were inadequate, and that's from Dr. Kelly.
11
That's not my writing.
12
Q. Well, can you show me on Plaintiff's Exhibit 11
13
where Dr. Kelly's name appears anywhere?
14
A. I don't think it does.
15
Q. Can you show me on Exhibit 11 a date that shows
16
when this document was prepared?
17
A. I don't think it does.
18
Q. When you say that you were prejudiced or
19
adversely impacted by not being able to cross examine someone
20
because of Dr. Kelly's notes during the hearing --
21
A. I don't think I said that.
22
Q. Is that an accurate statement; did you have some
23
notes that you were going --
24
A. I wasn't able to cross.
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Q. Did you want to cross examine someone based upon
2
notes that you had received from Dr. Kelly during this
3
hearing?
4
A. Did I want to cross examine someone based on Dr.
5
Kelly's notes and reading of the archaeology papers that were
6
given to us? Yes, I did.
7
Q. Are you saying you were given archaeology papers
8
in advance of the hearing?
9
A. That's correct.
10
Q. Okay. Do you remember what those were, what
11
those papers were that you were given in advance of the
12
hearing about archaeology issues? I'm presuming you were
13
given them by the applicant?
14
A. By Mr. Durako.
15
Q. So, you had this information in advance of the
16
hearing. Dr. Kelly -- Is that correct? You had some
17
archaeology information in advance of the hearing; correct?
18
A. Correct.
19
Q. You got that from Mr. Durako; correct?
20
A. Yes.
21
Q. You understood that that was a position taken by
22
or documents that were going to be relied upon by the
23
applicant in reference to the application; correct?
24
A. I assumed so.
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Q. You went to a member of your organization, who is
2
a professor. Is he an archaeology professor? What's his
3
degree at Wash U?
4
A. He's got a doctor. I'm not sure what it is.
5
He's an archaeologist. He's, I think, a cultural
6
anthropologist. I'm not sure.
7
Q. And this is Dr. Kelly; correct?
8
A. Correct.
9
Q. In advance of the hearing, you have an
10
opportunity to meet with Dr. Kelly or talk to him on the
11
phone, and he looks at documents that were given to you by
12
applicant in this case; correct?
13
A. Correct.
14
Q. You make some notes from your discussions with
15
him; correct?
16
A. Correct.
17
Q. Exhibit 11 is not those notes, though; right?
18
A. No. That's from Dr. Kelly. That's his notes.
19
Q. Okay. Do you know when these were made?
20
A. I think a couple days before the hearing.
21
Q. Would you agree with me then that any issue that
22
you have relative to fundamental fairness and the
23
introduction of Dr. Kelly's observations into this case would
24
be moot if Dr. Kelly subsequent to the hearing submitted
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documentation for consideration by the City?
2
A. Well, Dr. Kelly's report or documentation is
3
precluded on what this is, and this was never identified what
4
this is, the papers that we got. It's not an official
5
application. It wasn't an official report. It wasn't
6
anything. It was basically given to me by Mr. Durako. He
7
said, "This is what I can find on archaeology. I don't know
8
if it's all there."
9
Q. I want to make sure the record it clear. The
10
information contained on Plaintiff's Exhibit 11 is
11
information that you are submitting was prepared by Dr. Kelly
12
in advance of this hearing; correct?
13
A. Correct.
14
Q. You've indicated that you're aware Dr. Kelly
15
submitted a report as a member of the Powell Archaeological
16
Research Center in Fairmont City, Illinois after the hearing;
17
correct?
18
A. No, he did not submit a report. He submitted --
19
I believe Powell Archaeological Research Center submitted a
20
comment letter.
21
Q. Okay. Are you familiar with the fact that on
22
January 19th, 2007, he authored a document that was submitted
23
during the comment section or period of this case?
24
A. Yes, I am.
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Q. Did you participate with Dr. Kelly in the
2
preparation of the document dated January 19th, 2007?
3
A. I did not.
4
Q. Have you actually read what he submitted?
5
A. At one time I did. I haven't read it lately.
6
Q. Certainly you understand this process of a siting
7
application and the comment period to allow opponents, as
8
well as proponents, to submit whatever information they want
9
to have considered admissible by who's making the decision in
10
this case during this comment period?
11
A. That's correct.
12
Q. So, if Dr. Kelly wanted to relate everything that
13
was contained on Plaintiff's Exhibit 11 during the comment
14
period, you know of no reason why he would have been
15
prohibited from doing so; do you?
16
A. Well, it refers to specific information in the
17
papers that, to our knowledge, haven't been submitted. So,
18
if you say, "On page something," or cite "Page 1 of this
19
something," cite 158 or whatever it was, it doesn't make any
20
sense. It doesn't have any relevance. No one knows what
21
he's saying or implying. That's why it was important to
22
submit the archaeology report, Waste Management, Burns and
23
McDonnell, Mr. Shinn's report while we could still ask
24
questions on it. A document with questions about something
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Keefe Reporting Company
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that's not in evidence is nothing. It means nothing.
2
Q. You indicated that you made an attempt to contact
3
my office on Friday before the hearing in December of 2006;
4
correct?
5
A. Correct.
6
Q. And I was not available when you made that call;
7
correct?
8
A. That's correct.
9
Q. You indicated that you did speak with an
10
individual at the office; correct?
11
A. That's correct.
12
Q. Did you make any attempts during -- later in the
13
day on that Friday to reach me?
14
A. No. The receptionist or whoever answered the
15
phone said that you wouldn't be there the rest of the day.
16
So, I did not.
17
Q. Do you think it was important for you to get in
18
touch with somebody from the City about how this hearing was
19
going to be conducted?
20
A. I identified who I was, what I was calling about,
21
and that it was important, and I would assume that your
22
receptionist would have given you the message.
23
Q. Why did you feel it was important for you to
24
contact someone from the City about how the hearing was going
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to be conducted?
2
A. Why was it important?
3
Q. To you.
4
A. So I would know what the rules are.
5
Q. You felt that was going to be very -- You didn't
6
want to have any problems in presenting whatever you wanted
7
to present during that hearing; did you?
8
A. I really didn't want problems with this. I
9
really did not.
10
Q. You certainly have had access before that date to
11
representatives from Waste Management; correct?
12
A. Yes, absolutely.
13
Q. In fact, one of their lawyers communicated with
14
you from time to time about this whole process; correct?
15
A. As did Mr. Durako through his attorney, but I did
16
meet with him.
17
Q. So, the applicant in this case appeared to be
18
cooperating with you; did they not?
19
A. Yes, they did.
20
Q. You weren't expecting any funny business, as you
21
quote, as you described it, from the applicant; did you?
22
A. I certainly didn't expect anything like that, no.
23
Q. And when you called the City Hall on Friday, the
24
Friday before this hearing, it wasn't out of the ordinary for
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you to be told that you should direct your questions about
2
how a hearing is going to be conducted to the City attorney;
3
right?
4
A. Was it unusual? I don't know. I don't call city
5
halls and ask things like that often. So, I don't know.
6
Q. But you're a seasoned veteran, if you will, of
7
these siting applications; are you not, Ms. Andria?
8
A. I guess I would say that, yes.
9
Q. You knew well enough to call the City Hall that
10
day to inquire about how the hearing is going to be
11
conducted; correct?
12
A. Yes. And like I said before, I think that the
13
information belonged at the City Clerk's office. I don't
14
think that citizens have to track down an attorney. I think
15
that the proper procedure is to have information available at
16
the City Clerk's office.
17
Q. Well, the only way to get the information from
18
the City Clerk's office is to go to the City Clerk's office;
19
correct?
20
A. I called. That's why I called them.
21
Q. I understand. Where did you call from?
22
A. Where did I call from?
23
Q. Yes, ma'am.
24
A. What City?
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Q. Sure.
2
A. I don't remember.
3
Q. I mean, were you in Madison County? Were you out
4
of state?
5
A. I'm not positive, but I'm pretty sure I wasn't in
6
Madison County.
7
Q. Okay. Could you have made this call the day
8
before and inquired about any rules or procedures to be
9
followed?
10
A. I think I said that I just -- I had a
11
conversation with Miss Livingston, and she said, "I think
12
there's some rules or something in place." So, I did not --
13
I think I only found out then.
14
Q. So, the only reason you called is because Miss
15
Livingston suggested maybe you should look into this?
16
A. That's my memory.
17
Q. So, that was the diligence that you were
18
exercising on behalf of American Bottom Conservancy and the
19
Sierra Club in reference to this application that you knew
20
was pending for several months before that date?
21
A. There was nothing in any articles or anything or
22
anything that said there was a precondition of filing, and I,
23
frankly, did not remember your -- 12 years, the experience
24
beforehand.
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Q. Well, when you weren't able to reach me that
2
Friday, did you have the heightened sense of concern about
3
having your rights being jeopardized because of your
4
inability to reach me that day?
5
A. I was unhappy. I don't know. Heightened
6
concerned is -- As I said before, I thought this did not go
7
well.
8
Q. Did you make any other attempts to reach me that
9
Friday?
10
A. I did not.
11
Q. Did you call back to City Hall after you tried to
12
reach me at my office and inquire if there was another way
13
for them to contact me to return your call?
14
A. I did not.
15
Q. Did you call anyone on Saturday?
16
A. I did not.
17
Q. Anyone on Sunday?
18
A. You mean from the City?
19
Q. Or me.
20
A. No.
21
Q. Did you look in a telephone book to see whether I
22
was listed with a home address?
23
A. No.
24
Q. Were you able to look in a telephone book to find
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out whether I was listed at a home address?
2
A. Do I have a telephone book, is that the question?
3
Q. You can interpret it that way, sure.
4
A. Well, I left my name, my cell number and the
5
reason I called. I assumed that you had that information or
6
would get that information. I made no further attempt to
7
keep calling you.
8
Q. So, you left your cell number?
9
A. Yes.
10
Q. What number was that?
11
A. I'd rather not put that in a record that's going
12
to be on the Pollution Control Board site.
13
Q. Will you give an address?
14
A. Absolutely not.
15
Q. So, you're telling this Court that even though
16
you aren't willing to disclose an address or a cell phone
17
number, that you gave that number to someone at my office to
18
call you whenever I wanted to; is that your testimony today?
19
A. That I left my -- I assume my cell phone number.
20
Q. You're not certain; are you?
21
A. That's a good question. Maybe I didn't. Maybe I
22
didn't want to leave my cell phone number.
23
Q. Are you certain you even left your name?
24
A. Absolutely. I identified myself and the reason
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that I called, and that the City -- I had just talked to the
2
City, and they wanted me to -- I mean, I don't remember all
3
the specifics that I said, and I recounted it in the
4
transcript of the hearing. I remember specifically after I
5
identified who I was, what I was calling about, that I was
6
told you guys were going to be gone all day long.
7
Q. Who's the secretary/treasurer of the American
8
Bottom Conservancy?
9
A. Mark Feldworth.
10
Q. Was he the secretary/treasurer back in December
11
of 2006?
12
A. I believe so.
13
Q. You were aware that Mark Feldworth and I grew up
14
together in Madison; were you not -- back in December of
15
2006?
16
A. I had been aware at some point that he knew you
17
and that you may have gone to school together. I wasn't sure
18
in what proximity.
19
Q. In fact, had you inquired, you would have
20
determined that his father continues to live next door to my
21
parents in the 1800 block of Third Street in Madison; would
22
you not?
23
A. I know that his father lives in Madison. I did
24
not know it was next to you. And I did ask Mr. Feldworth
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right after the deposition, I told him what you said, that I
2
should have asked him for how to get in touch with you, and
3
he said he hadn't seen you in years, and that he did not know
4
how to get in touch with you and certainly didn't have your
5
cell phone number.
6
Q. Needless to say, you made no attempts, even
7
though you knew Mr. Feldworth was from Madison, that his
8
parents live next door to my parents or at least we grew up
9
together, you made no attempts to contact Mr. Feldworth to
10
find out how you might be able to get me over that weekend;
11
correct?
12
A. Mr. Papa, at that day, any knowledge I had about
13
you and Mr. Feldworth was not in my mind at all, and I had no
14
idea, I had no memory whether he was even in town then. He's
15
travels a lot. But, no, there was no -- nothing that I
16
remember connecting, "Oh, Mark, will know how to get in touch
17
with him." That did not happen.
18
Q. Monday morning comes around. Do you make another
19
telephone call to my office?
20
A. I don't believe so.
21
Q. Did you make a call to City Hall?
22
A. I went to City Hall.
23
Q. About what time of the day?
24
A. I do not remember.
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Q. You're positive you went on Monday, the 18th?
2
A. I'm pretty sure. I don't remember. I know I
3
didn't want to go alone. I wanted to go with someone. And I
4
waited until Mr. Norman was available to go with me. So, I
5
don't remember the time.
6
Q. Were you concerned about your security coming to
7
Madison?
8
A. I would like to have had Mr. Norman with me to
9
observe and learn and ask any questions, and I just feel more
10
comfortable having him come with me.
11
Q. So, you wanted him to come along so he could
12
learn what to do under circumstances like this?
13
A. I wanted not to go to the City Hall alone.
14
Q. You get to City Hall, and you ask for whether
15
there's any ordinances, I gather, or rules that are going to
16
apply to this hearing --
17
A. I wasn't. I'm sorry. I interrupted you.
18
Finish.
19
Q. Is that what you asked for, whether there were
20
any ordinances and rules that could apply to this hearing?
21
A. I don't think I used the word "ordinance" because
22
it didn't occur to me. I think I asked something about the
23
nature how the hearing was going to be conducted, and I don't
24
remember specifically.
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Q. At that time, did the clerk -- And you remember
2
this was a female clerk; correct?
3
A. Yes.
4
Q. The clerk advised you that there was an ordinance
5
that had been passed back in June that related to this
6
hearing?
7
A. I believe so. I don't know that she said it was
8
in June, but it was written on there.
9
Q. You asked for a copy of the ordinance?
10
A. Yes.
11
Q. She told you that it was going to cost so much
12
money for the copy and charges; correct?
13
A. Correct.
14
Q. You took exception to the amount you were being
15
quoted; correct?
16
A. Correct.
17
Q. She went and made a phone call and then came back
18
and told you that you were going to be charged a lesser
19
amount, and you willingly paid that lesser amount; correct?
20
A. Correct.
21
Q. She made out a receipt for you for the money that
22
you gave her; correct?
23
A. I assume so.
24
Q. You don't have a copy of that; right?
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A. I do not have that receipt. I couldn't find it.
2
Q. Two days ago I asked you to look around and find
3
that receipt; right?
4
A. I did look.
5
Q. You found a receipt from three months or four
6
months later; correct?
7
A. It was with the documents that I brought.
8
Q. But you couldn't find the receipt from December
9
of 2006; right?
10
A. That's correct.
11
Q. She made that receipt out or at least made some
12
note of the receipt the day you were there; didn't she?
13
A. I'm sorry?
14
Q. She actually made that receipt out the day you
15
were there?
16
A. I would assume. Why would she make it at another
17
time?
18
MR. PAPA: May I approach the witness?
19
(Hearing Officer Webb nods head.)
20
21
BY MR. PAPA:
22
Q. Ms. Andria, I'm going to represent to you this is
23
a copy of the receipt ledger from the City Clerk's office in
24
Madison, Illinois. I'd like to direct your attention to the
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1
third entry -- actually, the fifth entry from the top that
2
has your name on it, Kathy Andria. Do you see that?
3
A. Yes.
4
Q. See where it says that a copy was made of
5
Ordinance 1670 and two documents for the hearing?
6
A. Yes. It's hard to see, but I see "1670". I
7
can't read what it says.
8
Q. What date is shown for the date of that?
9
A. 12-19-06.
10
Q. What's the amount shown for how much you paid?
11
A. $1.80.
12
Q. Does that refresh your recollection as to the
13
amount you paid?
14
A. It seems very reasonable.
15
Q. Does that refresh your recollection as to the
16
date you were there?
17
A. I don't -- I don't know that -- I guess I was
18
there that date then. I don't know. I thought I went
19
Monday.
20
Q. All right.
21
A. But I know I wanted Mr. Norman with me.
22
Q. Is it possible that you didn't go to City Hall
23
until Tuesday as that document seems to indicate?
24
A. It is possible, but I don't have that receipt to
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prove that I did or didn't.
2
Q. In the event you didn't go to City Hall until
3
Tuesday to inquire about rules for this hearing, what
4
attempts did you make to reach me on Monday?
5
A. I don't believe I did try to reach you on Monday.
6
It was my memory -- and if this is wrong, it's wrong, but I
7
really wish -- This says 1.80. If there's a receipt, I think
8
that you would have that -- the copy of the receipt like this
9
one was. It was not just a ledger page, but it was something
10
that had a number and everything. I would --
11
MR. PAPA: Believe me, Miss Andria, I wish you had that
12
receipt like you have the other one. I don't have anything
13
further.
14
HEARING OFFICER WEBB: Thank you. I'm guessing there's
15
quite a bit of Re-Direct.
16
MR. MORRISON: Madam Hearing Officer, there's not quite
17
a bit. Seven distinct questions based upon one of
18
Mr. Moran's questions.
19
HEARING OFFICER WEBB: Okay. Would you like to do that
20
now, or would you like to take a five-minute break, or I
21
guess --
22
23
(A brief discussion off the record.)
24
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R E D I R E C T E X A M I N A T I O N
2
by Mr. Bruce A. Morrison:
3
Q. Miss Andria, thanks for bearing with us and
4
hanging in there. Several follow-up questions on one of
5
Mr. Moran's questions. Mr. Moran asked you if it was your
6
contention that your ability to cross examine Mr. Schanuel
7
about archaeology was negatively affected by the applicant
8
not filing a written report on archaeology. Now, the
9
applicant had given to you before the hearing papers on
10
archaeology; is that right?
11
A. The applicant had given me papers on archaeology
12
before the hearing, yes.
13
Q. And you gave those to Dr. John Kelly?
14
A. I did.
15
Q. And in return Dr. John Kelly gave you some notes;
16
is that right?
17
A. That's correct.
18
Q. And those notes are marked ABC Exhibit No. 11 at
19
the bottom; is that right?
20
A. Yes.
21
Q. And you had those notes with you when you sought
22
to question Mr. Schanuel on archaeology; is that right?
23
A. Yes, they were in a folder.
24
Q. Questions you sought to ask, were they based on
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those notes?
2
A. I'm sorry?
3
Q. The questions you sought to ask Mr. Schanuel and
4
ask other Waste Management witness present at that hearing,
5
were your questions going to be based on those notes?
6
A. Well, they're not precisely because they have --
7
they refer to specific Phase 1 surveys and material that
8
wasn't in evidence and that he hadn't knowledge of, but they
9
were -- there were some things that I gleaned out of it
10
that was because of the incompatibility of the archaeology.
11
Q. So, what did negatively affect your ability to
12
ask Mr. Schanuel or any other Waste Management witness about
13
archaeology at that hearing?
14
A. The report wasn't submitted. There was no
15
archaeologist to question.
16
Q. Okay. And you attempted to question somebody --
17
A. I attempted to question --
18
Q. -- at that hearing?
19
A. Yes. I attempted to question Mr. Schanuel
20
because he was the person certified as the expert on
21
incompatibility.
22
MR. MORRISON: And the transcript shows the result of
23
your effort or what happened when you attempted to question
24
Mr. Schanuel. Madam Hearing Officer, what I would like to do
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at this time is renew my offer to introduce into evidence ABC
2
11, the notes of Dr. John Kelly. Mr. Papa elicited a ton of
3
testimony about those notes, and in particular he asked Ms.
4
Andria a question, "Well, isn't the issue of Dr. Kelly's
5
notes going to be mooted by what Dr. Kelly submitted in
6
comment? The issue about fundamental fairness, is that all
7
moot because Dr. Kelly submitted these comments anyway?" And
8
the only which the Board is going to be able to determine
9
whether that issue is moot or not is to have those notes of
10
Dr. Kelly before it.
11
HEARING OFFICER WEBB: Would the Respondents like to
12
comment?
13
MR. MORAN: The testimony that counsel just alluded to
14
does not in any way address the fundamental question basis
15
for the objection, which was this information is submitted in
16
an effort to address an issue substantively, which was not in
17
any way relevant or pertinent to this proceeding. It's
18
offered to provide substantive evidence on what is allegedly
19
a relevant matter. So, it still has not addressed the
20
question of whether or not you can now attempt to submit it
21
at this hearing substantive evidence going to allegedly one
22
of the criteria. So, I don't think anything's been
23
established that would warrant a change in your ruling to
24
allow this as an offer of proof and nothing more.
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Keefe Reporting Company
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MR. PAPA: If I might also add, Your Honor, as far as
2
the City's concerned, this document has not been sufficiently
3
authenticated to say who was authored by. Dr. Kelly's name
4
appears nowhere on this. There's no date as to when this was
5
prepared, who prepared it. It's extremely prejudicial I
6
think to try to use this at this stage of the proceedings,
7
particularly if -- And I think I've gotten confused myself on
8
it in a way. I'm not sure if this document was prepared
9
before the hearing or after the hearing, whether this is part
10
of the notes that Miss Andria was talking about that she was
11
going to use for cross examination or whether it wasn't. At
12
one point I thought it was, but another point of her
13
testimony I thought she indicated this was not part of what
14
she was going to use for cross examination. To that extent,
15
it wouldn't be relevant to something that she said she was
16
going to introduce at the hearing. If, in fact, this is
17
something authored by Dr. Kelly after the hearing, we have a
18
document that we know he authored after the hearing that is
19
certainly been accepted by the City and was considered by the
20
City. If he had chosen to include other information within
21
that document, there's no question it would have been made a
22
part of this record, but for whatever reason, the opponents
23
in this case chose not to introduce it at a time when it was
24
appropriate to introduce it. And that puts us at a very
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1
great disadvantage, I'm afraid.
2
HEARING OFFICER WEBB: Well, I think I am going to
3
maintain its status as an offer of proof because it's not in
4
the record, and I don't think the Board necessarily needs
5
this document to evaluate the testimony elicited by the City,
6
but I will present it to the Board so they will have it, and
7
they can make a different determination if they need to. Do
8
you have any further Re-Direct?
9
MR. MORRISON: I don't, Madam Hearing Officer.
10
HEARING OFFICER WEBB: Do the Respondents have any
11
further questions for this witness?
12
MR. MORAN: Yes, I would have further questions, but I
13
would ask that we break for just a few moments.
14
HEARING OFFICER WEBB: Okay. We're going to take a
15
five-minute break. We'll go off the record.
16
17
(A brief recess off the record.)
18
19
HEARING OFFICER WEBB: Okay. We are back on the record
20
with additional questions from Mr. Moran.
21
MR. MORAN: Thank you, Ms. Hearing Officer.
22
23
R E C R O S S E X A M I N A T I O N
24
by Mr. Donald J. Moran:
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Keefe Reporting Company
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Q. Miss Andria, I believe you indicated that you did
2
receive a copy of the siting application from Ms. Livingston
3
sometime shortly after it was filed; is that correct?
4
A. I did receive a siting application. I think it
5
was from Miss Livingston. I don't remember when I received
6
it.
7
Q. Are you aware that the application was filed on
8
September 22nd of 2006?
9
A. I'm aware that it was filed counting back
10
180 days or something I think.
11
MEMBER OF THE PUBLIC: Speak up, please.
12
A. That could be right. I'm not sure of the date it
13
was filed. I'm sure you have the right date.
14
15
BY MR. MORAN:
16
Q. You aren't denying it was filed on September
17
22nd, 2006; are you?
18
A. No, I'm not.
19
Q. How did you pick up a copy of the application?
20
A. I don't remember.
21
Q. You don't remember picking it up at Ms.
22
Livingston's office?
23
A. That could very well be. I don't remember.
24
Q. And you picked it up three days of its filing?
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A. I don't remember.
2
Q. And you indicated that Ms. Livingston had
3
provided you with other documents relating to archaeological
4
issues; is that correct?
5
A. I think they were given to me by Mr. Durako.
6
Q. I'm sorry. Mr. Durako gave them to you
7
personally; is that what you're saying; that's your
8
recollection?
9
A. I believe so.
10
Q. Okay. And when did you receive those documents?
11
Sometime before December 21st --
12
A. Correct.
13
Q. -- 2006? And it was a number of weeks before
14
December 21st, 2006?
15
A. A number?
16
Q. At least three or four weeks before?
17
A. I don't know that it was that long, but it was
18
not the week before, but a couple weeks because I gave them
19
to Dr. Kelly.
20
Q. So, it would be accurate to say that you've been
21
in Ms. Livingston's office on occasions prior to
22
December 21st?
23
A. Correct.
24
Q. Do you have Ms. Livingston's phone number at her
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Keefe Reporting Company
1
office?
2
A. Yes.
3
Q. Do you have her cell phone number, as well?
4
A. Probably.
5
Q. When you were unable to reach Mr. Papa on
6
December 15th and you had ask that he call you back, did you
7
ever attempt to call Ms. Livingston?
8
A. I don't believe so.
9
Q. In fact, did you ever attempt to reach or call
10
Ms. Livingston at any point between December 15th and
11
December 21st of 2006?
12
A. I don't remember.
13
Q. I believe you indicated that at this point, you
14
don't know whether or not you left a telephone number with
15
the person that you spoke to on December 15th from the City
16
of Madison or from John Papa's office; correct?
17
A. I'm saying that when I called, I identified
18
myself, the purpose for which I was calling, and I would
19
assume that I left a number -- a phone number.
20
Q. But you sitting here today, you don't know
21
whether you left a phone number; would that be accurate?
22
A. It's accurate that I'm not positive, but it's
23
consistent that I would because that's what I would do.
24
Q. Now, you were asked a question on examination by
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1
Mr. Papa as to whether you were contending that part of the
2
reason you are arguing that this process was fundamentally
3
unfair, is that you were not allowed to introduce evidence at
4
this siting hearing. Did I hear that correctly?
5
A. When I -- The first thing that I tried to submit
6
into evidence, you objected, and you said that it had to have
7
been submitted according to Ordinance 1670, that it had to be
8
pre-filed five days before or whatever words you used with
9
the ordinance.
10
Q. And is that the basis on which you're now
11
contending that part of this process was fundamentally
12
unfair, the fact that you offered a document that was
13
initially refused admission for the reasons you indicated?
14
A. Am I saying -- I guess I don't understand. I
15
really do have trouble with your questions, Mr. Moran.
16
Q. I'm sorry. I'll try to rephrase it. I don't
17
mean to be unclear. You said that you're claiming the
18
process was unfair because you were not allowed to present
19
evidence; is that correct or not correct?
20
A. It's partially correct.
21
Q. Because I didn't see in your Petition For Review
22
any claim that the fundamental unfairness you're alleging
23
here was based on the fact that you were not allowed to
24
present evidence; would that be accurate; it's not in this
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Petition?
2
A. I'm not sure. I thought that there was something
3
about the way the conduct of the hearing.
4
Q. But now I'm just focusing on what you said here
5
today, that your contention is that because you were not
6
allowed to present evidence, the hearing was fundamentally
7
unfair; is that correct?
8
A. I think that that's part of the fundamental
9
unfairness.
10
Q. And is the evidence that you were not allowed to
11
present the exhibit you offered during the hearings that was
12
initially refused admission by the hearing officer?
13
A. Is that the only thing? No.
14
Q. Is that one of the things that supports an
15
argument that the fundamental unfairness in this proceeding
16
was that you were not allowed to present evidence?
17
A. That's one of the things.
18
Q. And that exhibit, in fact, was admitted at the
19
hearing on Friday, on the 22nd; wasn't it? It was initially
20
refused, but then it was admitted on Friday; wasn't it?
21
A. Would you remind me what that document was?
22
Q. Well, you're the one who identified the document.
23
You identified a document you initially submitted or offered,
24
and it was refused admission; did you not?
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A. I originally offered a document to question, and
2
it was refused, and if this is the document about -- from
3
Rachel's about the cancer deaths near sites, then I don't
4
think that was admitted into evidence.
5
Q. And it was not admitted because you were unable
6
to provide the additional information necessary to provide
7
the submission of that exhibit; is that correct?
8
A. No, it was not included -- it was not admitted
9
into evidence because I didn't put the rule -- I didn't have
10
it pre-submitted. At the end, it was offered to be added, as
11
were some brochures I think, but I needed to do something,
12
and I wasn't sure, but it was like it was over. I mean, it
13
was like there was I think a gratuitous gesture.
14
Q. But you didn't provide the additional
15
information; did you?
16
A. Well, I did not --
17
Q. Is that correct?
18
A. -- provide the information. I'm not really sure
19
what you were wanting, and I don't think that it would have
20
any import because I wasn't able to use the document in my
21
questioning.
22
Q. So, is that the document that you are claiming
23
you were unable to present which is part of the reason for
24
your claim the hearing is fundamentally unfair?
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A. Was that one of the documents?
2
Q. Yes.
3
A. Yes.
4
Q. Were there any other documents or any other
5
evidence that you were not allowed to present at the hearing?
6
A. At the hearing with respect to that I tried to
7
introduce something? I'm not sure.
8
Q. So, as you sit here today, you cannot recall any
9
other evidence you sought to offer that was refused; is that
10
correct?
11
A. That may be the case. I'm not positive.
12
Q. I'm only asking as you sit here today right now.
13
You don't recall any other evidence that you sought to offer
14
that was refused admission in the siting hearing; is that
15
correct?
16
A. During the hearing itself, is that what you're
17
asking?
18
Q. Yes.
19
A. Okay. Yes. I have no -- I can't bring anything
20
to mind right now. I can't exclude that there wasn't. I'm
21
not sure.
22
MR. MORAN: Thank you. Nothing further.
23
HEARING OFFICER WEBB: Thank you. Mr. Papa?
24
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R E C R O S S E X A M I N A T I O N
2
by Mr. John Papa:
3
Q. Just to make sure that we're clear, was the
4
article that you're making reference to this Rachel's
5
publication article entitled "Landfills are dangerous,"
6
September 24, 1998?
7
A. It's very possible.
8
MR. PAPA: This is a document that counsel has marked as
9
ABC No. 1, with today's date, as Petitioner's list of
10
exhibits. If I might approach, Madam.
11
HEARING OFFICER WEBB: Yes.
12
13
BY MR. PAPA:
14
Q. You've testified, Miss Andria, that you don't
15
believe it was ultimately admitted. Let me show you the
16
front page of that article and point out the entry made by
17
the hearing officer saying that this document was, in fact,
18
admitted into the record on December 23rd, 2006. Does that
19
refresh your recollection as to whether it was submitted?
20
A. It was submitted on Saturday.
21
Q. Well, I'm sorry. I'm looking up side down.
22
Perhaps that says 22nd.
23
A. I know it was at the very end if it was admitted.
24
I don't remember that it was admitted because I said I
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thought that Mr. Moran had some sort of proviso that if only
2
I did something, that it would be admitted, but, as I said,
3
it was at the end, and it was kind of confusing to me what
4
was going on.
5
MR. PAPA: Okay. That's all, Your Honor.
6
HEARING OFFICER WEBB: Thank you. Mr. Morrison?
7
MR. MORRISON: Nothing on Re-Direct.
8
HEARING OFFICER WEBB: So, there's no further questions
9
for this witness?
10
(No response.)
11
HEARING OFFICER WEBB: Okay.
12
MR. MORAN: Give me one second.
13
HEARING OFFICER WEBB: I'm sorry. Hang on.
14
MR. MORAN: I need to have a moment. I need to get a
15
transcript. Miss Hearing Officer, if I might approach the
16
witness.
17
HEARING OFFICER WEBB: Yes.
18
19
S E C O N D R E C R O S S E X A M I N A T I O N
20
by Mr. Donald J. Moran:
21
Q. What I'm going to be referring to is Volume Two
22
of the transcript of the public hearing from the hearing that
23
took place on December 22nd of 2006 before Hearing Officer
24
Daniel R. Schattnik. Ms. Andria, let me direct your
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attention to Page 380 of the transcript, as I indicated,
2
dated December 22nd, 2006, Volume Two, and ask you if you can
3
read to yourself beginning on Page 380 the colloquy between
4
you and me ending on Page 384 with the hearing officer's
5
statement regarding your Exhibit 1.
6
(Mr. Moran hands document to witness.)
7
A. Yes.
8
Q. Is the discussion on Pages 380 to 384 of this
9
transcript a description of the exhibit that you were
10
referring to earlier as having been offered by you but
11
refused admission?
12
A. I believe so.
13
Q. Could you read for us out loud the hearing
14
officer's statement on Page 384 beginning at line 10 with
15
respect to whether that exhibit was admitted or not?
16
A. It says, "The Exhibit identified as Andria 1 is
17
now admitted without objection."
18
MR. MORAN: Thank you, Miss Andria. I have nothing
19
further.
20
HEARING OFFICER WEBB: Mr. Morrison?
21
MR. MORRISON: Nothing for Re-Direct.
22
HEARING OFFICER WEBB: Mr. Papa?
23
MR. PAPA: Nothing further.
24
HEARING OFFICER WEBB: Thank you, Miss Andria.
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Mr. Morrison, do you have any further witnesses that you
2
would like to call.
3
MR. MORRISON: No further witnesses to call, just
4
exhibits to offer.
5
HEARING OFFICER WEBB: All right. Let's talk about the
6
exhibits.
7
MR. MORRISON: Madam Hearing Officer and counsel, I put
8
together this packet of exhibits that everybody has a copy
9
now. Exhibits ABC 1 through ABC 7, this is just an attempt
10
to collect into one plate exhibits that were offered and
11
admitted at least according to something that already appears
12
in the administrative record, and in particular at Page C2219
13
of the record, there is an Appendix II, list of exhibits
14
offered and admitted on behalf of opponent to the
15
application, which, actually, I was assuming that the City of
16
Madison had prepared that, but I don't know that. In any
17
case, ABC 1 through ABC 7 are duplicates of documents that
18
already appear in the record. The number -- The page number
19
of these documents are on the right-hand side.
20
ABC No. 8 is a group exhibit, and it's collective pages
21
from Waste Management's application for siting approval.
22
When you look at the pages that all of you have, there is no
23
record number. There is no "C" and then digits on any of
24
these pages, and that is because my copy of the records that
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I got from the City is in electronic form. I have it here on
2
this flash drive that I'm holding up. I don't know what the
3
Hearing Officer has, but when I need to reference the maps
4
from my electronic copy, there's really no detail. It's kind
5
of a big black blotch and gray blotch, and for that reason
6
what I've done is gone to an actual hard copy of the
7
application from Waste Management, and I've photocopied --
8
made a color copy of pages from that application and then put
9
in the corresponding page number from the record that would
10
be there if I actually printed something out from my flash
11
drive. With that said, I'm not faulting the City personally
12
for giving me something electronically. I know Miss Andria
13
is going to kill for me getting electronic rather than a
14
paper copy. I actually appreciate the electronic copy. I
15
just can't see these diagrams.
16
ABC 9 is something different entirely. These are pages
17
from a different file, from the Milam landfill vertical
18
expansion. The cover pages Illinois Pollution Board
19
certifying that these pages came from that file. These pages
20
are offered to show that the landfill is incompatible with
21
surrounding uses because they show that the applicants once
22
before represented a buffer was to have been a buffer to the
23
north of Cahokia canal, and the landfill has now jumped over
24
the buffer.
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There is no ABC 10. The list of exhibits refers to
2
Exhibit 10, but there is no corresponding 10.
3
Those are the extent of the Exhibits, with the exception
4
of 11.
5
HEARING OFFICER WEBB: So, ABC Exhibit 1 through 8 are
6
already in the administrative record that's been filed with
7
the Pollution Control Board; is that correct?
8
MR. MORAN: Yes, but as Andria exhibits.
9
THE WITNESS: As what? Pardon me.
10
MR. MORAN: They were presented at the siting hearing as
11
Andria Exhibits, not ABC. So, just to avoid any confusion,
12
the numbers are the same, but at the siting hearing, they're
13
identified as Andria Exhibits, not ABC. Here they're
14
identified as ABC, but I believe they are the same
15
documents --
16
MR. MORRISON: They are.
17
MR. MORAN: -- at least 1 through 7.
18
HEARING OFFICER WEBB: And then 8, what about 8?
19
MR. MORAN: 8, As Mr. Morrison pointed out, are pages
20
from the siting application. So, those would also already be
21
in the record. Certainly we could identify them as ABC 8,
22
although they're already in the record as part of the siting
23
application.
24
HEARING OFFICER WEBB: Do you know whether the Board had
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the same problem Mr. Morrison had? And I haven't looked at
2
my copies of the photos yet. Would you object to me taking
3
these photos just because they appear to be of good quality?
4
I'm not implying that what you filed with the Court wasn't,
5
but I just don't know. So, I don't know if there's any
6
objection to taking any of these.
7
MR. MORRISON: And, actually, Madam Hearing Officer,
8
what I propose to leave --
9
HEARING OFFICER WEBB: The original --
10
MR. MORRISON: These are color copies instead of just
11
the black and white.
12
HEARING OFFICER WEBB: I mean, the Board may well have
13
perfectly good quality copies. If there's no objection, I'll
14
take them.
15
MR. MORAN: This is only with regard to what's been
16
identified as ABC 8?
17
HEARING OFFICER WEBB: Yes.
18
MR. MORAN: We would have no objection to you taking
19
these pages identified as Group ABC 8.
20
HEARING OFFICER WEBB: Okay. So, I'd admit them as
21
Exhibits. We obviously do not have to call them Exhibits
22
because they're already in the record, but we can do that
23
just to highlight them so the Board doesn't have to look
24
through the whole record to find them.
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1 through 8, is there any objection to also for the same
2
purpose admitting these Exhibits as ABC -- And I don't think
3
we actually referred to any of these during the hearing; did
4
we? So, it really doesn't matter if we call them ABC
5
Exhibits or Andria Exhibits; is that correct? Is there any
6
reason you want to move these as Exhibits rather than just
7
having them referred to as the Andria Exhibits in the
8
administrative record?
9
MR. MORRISON: Oh, I think I see.
10
HEARING OFFICER WEBB: I mean, if you're going to make
11
arguments in your post hearing brief, can you just refer to
12
them as how they're labeled in the administrative record
13
that's currently on file, or is there some reason that you
14
would like to do it this way?
15
MR. MORRISON: And my only concern is that if there is
16
the same difficulty when either you or a member of the Board
17
is looking at a particular Exhibit and has the same
18
difficulty, for example, when looking at a location map of
19
what is where on the location map, if you and the Board just
20
have black and whites or something electronically, I suppose
21
it would be good to also then refer to this as ABC 8 so that
22
somebody actually knows there is a better copy that somebody
23
can go to. That's the only reason, the only justification I
24
have for separately calling these.
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1
HEARING OFFICER WEBB: I see your point.
2
MR. MORAN: The only confusion is going to be you have
3
Andria 1's and ABC 1's. Somebody reviewing the record is
4
going to be wondering, "Are these exactly the same Exhibits?"
5
It seems to me it makes more sense from an ease of
6
administrative review standpoint that we simply leave them as
7
Andria 1, 2, 3, 4, 5, 6, 7 as they were identified in the
8
administrative record. As you pointed out, we haven't used
9
them here. So, it would seem to me the better way to
10
approach is to leave them as Andria 1, 2, 3, 4, 5, 6, 7 for
11
facilitating appropriate review by the Pollution Control
12
Board.
13
MR. MORRISON: And that makes sense for me. Then what's
14
labeled ABC 8, would that be Andria 8?
15
MR. MORAN: No, because there was no Andria 8. Only 1
16
through 7. They're on the application. It would be easier
17
to look at the application than -- If you want to call it ABC
18
A and introduce it here, then I don't have a strong objection
19
to it, but it would seem somewhat unnecessary.
20
HEARING OFFICER WEBB: Well, do we know what page of the
21
record it's on, by any chance?
22
MR. MORAN: It's identified here.
23
MR. MORRISON: On the list of exhibits.
24
HEARING OFFICER WEBB: Oh, I'm sorry. Okay. I see.
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MR. MORAN: So, there are all record numbers or cites
2
for each of these pages.
3
HEARING OFFICER WEBB: I see.
4
MR. MORRISON: And for the sake of furthering the
5
discussion, I'd be happy to call ABC 1 through 7 Andria 1
6
through 7 if that's acceptable to the Hearing Officer, and
7
leaving ABC 8 as ABC 8.
8
HEARING OFFICER WEBB: That's acceptable to me. Is that
9
confusing to anybody else? I just don't want to confuse
10
anything.
11
MR. MORRISON: And I'll -- With everybody's leave, I'll
12
prepare a different list of exhibits.
13
MR. MORAN: I hate to suggest this, but to avoid any
14
confusion, I suppose if you're going to allow this be
15
identified as an ABC Exhibit, it ought to be ABC 1 to go
16
to --
17
HEARING OFFICER WEBB: We don't necessarily have to --
18
We don't have to include it. It doesn't really need to be an
19
Exhibit at all really because it's in administrative record.
20
So, I suppose from that standpoint, I can just -- I can take
21
it as an additional supplemental copy of pages whatever,
22
12,000 whatever pages it is in the record. We could do that
23
too.
24
MR. MORAN: That seems to be preferable.
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Keefe Reporting Company
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MR. MORRISON: It does to me, also.
2
HEARING OFFICER WEBB: Why don't we do that? Exhibit 9
3
is -- Would you like to comment on Exhibit 9?
4
MR. MORAN: Yes. Exhibit ABC 9 consists of a letter
5
John Therriault to the Board, including various documents
6
from the prior siting application in Waste Management of
7
Illinois and Village of Fairmont City. It is intended to
8
present substantive evidence that addresses testimony and
9
evidence presented at the siting hearing, and as such clearly
10
should have been presented during the siting hearing. It has
11
no reference or relation to any fundamental fairness issue,
12
but indeed attempts to address the substantive criteria, and
13
as such we object to its submission against the City.
14
MR. PAPA: The City would join in the objection, and I
15
don't recall any reference to it being made during any
16
testimony today.
17
HEARING OFFICER WEBB: I guess I also don't quite see
18
the relevance of this document, and it seems like something
19
that if the Board was truly interested, they could review
20
this, but I'm not going admit this 9 as an Exhibit. And
21
there's no 10. And I think 11 -- But I will take it as an
22
offer of proof if you'd like.
23
MR. MORRISON: I appreciate that. Thanks.
24
HEARING OFFICER WEBB: Was that a "yes"?
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Keefe Reporting Company
1
MR. MORRISON: Yes, an offer of proof.
2
HEARING OFFICER WEBB: Okay. So, that's 9 and 11, you'd
3
like to make an offer of proof? I think we already discussed
4
11.
5
(Mr. Morrison nods head.)
6
HEARING OFFICER WEBB: And 1 through 8 we decided were
7
already part of the record, but I will reference as such in
8
the hearing report. Okay. Does the Petitioner have anything
9
further for their case?
10
MR. MORRISON: That concludes the Petitioners' evidence.
11
HEARING OFFICER WEBB: Okay. Thank you. Would the
12
Respondents like to begin with their Exhibits or call your
13
first witness, or do you have any witnesses? I'm sorry.
14
MR. MORAN: Waste Management of Illinois has no
15
witnesses to present.
16
HEARING OFFICER WEBB: Okay.
17
MR. MORAN: It has a document that it would submit as
18
part of an offer of proof because we don't believe that it is
19
a relevant document, but given what was heard today and given
20
what was presented today, we would simply ask to submit this
21
document in a way as a response to the offer of proof made.
22
So, we would also ask that it be made part of an offer of
23
proof.
24
HEARING OFFICER WEBB: Okay. What document is that?
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MR. MORAN: It's a letter dated August 3rd, 2007 from
2
the Illinois Historic Preservation Agency addressed to
3
Mr. Keith McMullen, US Army Corps of Engineers, authored by a
4
Ms. Anne Haaker from the Illinois Historic Preservation
5
Agency in relation to the North Milam site.
6
HEARING OFFICER WEBB: And this relates to the testimony
7
that fell under the offer of proof offered by the Petitioner;
8
correct?
9
MR. MORAN: Yes.
10
HEARING OFFICER WEBB: Okay. Can I refer to this as WMI
11
1?
12
MR. MORAN: WMII 1?
13
HEARING OFFICER WEBB: Yes.
14
MR. MORAN: That would be fine.
15
HEARING OFFICER WEBB: Okay. Okay. Do you have
16
anything further, Mr. Moran?
17
MR. MORAN: Nothing further.
18
HEARING OFFICER WEBB: Okay. Mr. Papa, would you like
19
to call a witness?
20
MR. PAPA: No witnesses, Your Honor. We would move for
21
the admission of City of Madison's Exhibits 1 and 2.
22
HEARING OFFICER WEBB: I have 2 in front of me. 1 was
23
the old --
24
MR. PAPA: The Ordinance 1248.
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HEARING OFFICER WEBB: Mr. Morrison, do you have an
2
objection to either of these Exhibits?
3
MR. MORRISON: No objection.
4
HEARING OFFICER WEBB: No objection. Then Exhibits 1
5
and 2 for the City of Madison are admitted. Do you have
6
anything further, Mr. Papa?
7
MR. PAPA: No, ma'am.
8
HEARING OFFICER WEBB: Okay. Is there anyone here who
9
would like to offer any public comments or testimony on
10
today's proceeding?
11
(No response.)
12
HEARING OFFICER WEBB: "No"? Okay. Before we hear any
13
closing arguments, let's go off the record to discuss the
14
briefing schedule.
15
16
(A brief discussion off the record.)
17
18
HEARING OFFICER WEBB: We've just had an off the record
19
discussion regarding post hearing briefs. The parties have
20
agreed to a briefing schedule as follows: The transcript of
21
these proceedings will be available from the Court Reporter
22
by August 28th and will be posted on the Board's web site.
23
Public comment headline is September 15th. Any public
24
comment must be filed in accordance with Section 101.628 of
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the Board's procedural rules. The Petitioners' brief is due
2
by September 18th. Respondents' briefs are due by October
3
9th. The Petitioners' reply, if any, is due by October 12th.
4
The mailbox rule will not apply, although parties may file
5
electronically. Mr. Morrison, would you like to make any
6
closings statement?
7
MR. MORRISON: No, Madam Hearing Officer. I'll have our
8
closing argument set forth in our post hearing brief.
9
HEARING OFFICER WEBB: Thank you. Mr. Moran, would you
10
like to make a closing statement?
11
MR. MORAN: No, thank you. We'll submit it in the
12
argument brief.
13
HEARING OFFICER WEBB: Mr. Papa, would you like to make
14
a closing statement?
15
MR. PAPA: The City will waive, as well.
16
HEARING OFFICER WEBB: Okay. Thank you very much. If
17
there are no members of the public here who wish to offer any
18
testimony or comments, I will proceed to make a statement as
19
to the credibility of the witness testifying during this
20
hearing. Based on my legal judgment and experience, I find
21
the witness testifying to be credible. At this time, I will
22
conclude the proceedings. We stand adjourned. And I thank
23
you all for your participation.
24
* * * * *
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1
STATE OF ILLINOIS )
)
2
COUNTY OF ST. CLAIR )
3
4
I, HOLLY A. McCULLOUGH, a Notary Public within and
5
for the County of St. Clair, State of Illinois, do HEREBY
6
CERTIFY that the foregoing record of hearing was made before
7
me on August 23, 2007, at the Madison County Administration
8
Building, County Board Room 203, 157 North Main Street,
9
Edwardsville, Illinois.
10
IN WITNESS WHEREOF, I have hereunto set my hand and
11
affixed my Notarial Seal the 24th day of August, 2007.
12
13
14
_____________________________
HOLLY A. McCULLOUGH
15
Notary Public
CSR #084-004265
16
RPR #821968
CCR #1011
17
18
19
20
21
22
23
24
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