1
1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
2
3
CITY OF JOLIET,
)
4
)
Petitioner, )
5
)
-vs-
) No. PCB 09-25
6
) (Permit Appeal-Water)
ILLINOIS ENVIRONMENTAL
)
7 PROTECTION AGENCY,
)
)
8
Respondent. )
9
10
REPORT OF PROCEEDINGS taken before Tamara
11 Manganiello, Registered Professional Reporter and
12 Notary Public, at 375 West Briarciff Road,
13 Bolingbrook, Illinois, commencing at the hour of
14 9:00 a.m. on the 13th day of January, A.D., 2009.
15
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24
L.A. REPORTING (312) 419-9292
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1 A P P E A R A N C E S:
2
ILLINOIS POLLUTION CONTROL BOARD
3
100 West Randolph Street
Suite 11-500
4
Chicago, Illinois 60601
(312) 814-8917
5
MS. KATHLEEN CROWLEY, HEARING OFFICER
6
7
DRINKER, BIDDLE & REATH, LLP
8
191 North Wacker Drive
Suite 3700
9
Chicago, Illinois 60606-1698
(312) 569-1441
10
BY: MR. ROY M. HARSCH
11
On behalf of the Petitioner;
12
OFFICE OF THE ATTORNEY GENERAL
13
STATE OF ILLINOIS
69 West Washington Street
14
Suite 1800
Chicago, Illinois 60602
15
(312) 814-3369
BY: MR. GERALD T. KARR
16
On behalf of the Respondent.
17
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24
L.A. REPORTING (312) 419-9292
3
1
HEARING OFFICER CROWLEY: Good
2
morning. It is just a couple of minutes
3
after 9:00 on January 13th, 2009. This is a
4
hearing being conducted by the Illinois
5
Pollution Control Board in a matter captioned
6
as City of Joliet versus Illinois
7
Environmental Protection Agency, Board docket
8
09-25.
9
My name is Kathleen Crowley and
10
I'm the Board's senior attorney. I'm
11
standing in today for the assigned hearing
12
officer, Brad Halloran, who is attending a
13
family funeral.
14
The hearing today was prompted by
15
the City of Joliet's October 17th, 2008
16
petition for review of a permit decision by
17
the Illinois Environmental Protection Agency.
18
On February 16th, 2007, the
19
Illinois Environmental Protection Agency
20
denied the City's request for modification of
21
its current permit allowing for application
22
of sewage sludge from its wastewater
23
treatment plants to agricultural lands. The
24
issue in dispute is the allowable amount of
L.A. REPORTING (312) 419-9292
4
1
radium in the sludge.
2
This hearing was scheduled in
3
accordance with the Illinois Environmental
4
Protection Act and Pollution Control Board
5
Rules and Procedures. It will be conducted
6
according to the Board's procedural rules
7
found at Sections 101 and 105, Subpart B.
8
As most of you know, the Board's
9
hearing officers don't make ultimate
10
decisions in the case and the hearing
11
officers do not participate in the Board's
12
decision on the issues in the case. My job
13
today is to ensure the hearing goes smoothly
14
and rule on any evidentiary matters that may
15
arise.
16
When the hearing is finished the
17
Board will review the transcript, the record
18
and any post-hearing briefs and render its
19
decision.
20
I will note at this time, for the
21
record, that there are approximately a dozen
22
persons in the room, including myself and the
23
court reporter. And I will ask at this point
24
if all of -- is there anyone who is not
L.A. REPORTING (312) 419-9292
5
1
affiliated with the parties in this case?
2
MR. HARSCH: Everyone is affiliated
3
with Joliet, I believe.
4
HEARING OFFICER CROWLEY: Thank you,
5
kindly.
6
I will ask counsel to introduce
7
themselves for the record, please.
8
MR. HARSCH: Roy Harsch from the law
9
firm of Drinker, Biddle & Reath on behalf of
10
petitioner, City of Joliet.
11
MR. KARR: Gerald Karr, K-A-R-R,
12
Senior Assistant Attorney General on behalf
13
of the respondent, Illinois Environmental
14
Protection Agency.
15
HEARING OFFICER CROWLEY: Thank you.
16
It's my understanding that the Illinois
17
Environmental Protection Agency will not
18
present witnesses today; is that correct?
19
MR. KARR: That's correct, we will not
20
be calling any witnesses.
21
HEARING OFFICER CROWLEY: Thank you.
22
But I understand that the City of Joliet does
23
have some witness testimony to present, so I
24
will turn it over to you, Mr. Harsch.
L.A. REPORTING (312) 419-9292
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1
MR. HARSCH: Thank you. Yes, we will
2
be calling four witnesses today. We have
3
previously filed written testimony and
4
provided copies of that written testimony to
5
the Board, pursuant to the hearing officer's
6
order, and to Mr. Karr.
7
I will be requesting that as we
8
call each witness and they have identified
9
their written testimony, that that -- given
10
the fact there are no members of the public
11
present, that that testimony be incorporated
12
into the record as though read.
13
MR. KARR: I have no objection to
14
proceeding that way.
15
HEARING OFFICER CROWLEY: No
16
objection?
17
MR. KARR: Yes.
18
HEARING OFFICER CROWLEY: Thank you.
19
MR. HARSCH: One correction, the
20
appeal is actually with respect to a
21
condition number two in the sludge disposal
22
permit that had been granted by the Illinois
23
Environmental Protection Agency to Joliet.
24
And special condition number two
L.A. REPORTING (312) 419-9292
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1
does not limit the amount of radium in the
2
sludge, but it limits the increase in soil
3
that would theoretically occur from the
4
application of sludge containing radium to
5
agricultural lands.
6
HEARING OFFICER CROWLEY: Thank you,
7
Mr. Harsch. Yes, I acknowledge that I did
8
misstate that.
9
MR. HARSCH: My first witness at this
10
point would be Harold Harty.
11
(Witness sworn.)
12 WHEREUPON:
13
HAROLD HARTY
14 called as a witness herein, having been first duly
15 sworn, was examined and testified as follows:
16
DIRECT EXAMINATION
17
By Mr. Harsch
18
Q. Mr. Harty, have you prepared written
19 testimony for presentation in this proceeding?
20
A. Yes, I have.
21
Q. And the book that is before you marked
22 as Exhibit 1, is this a copy of your written
23 testimony that you prepared?
24
A. Yes, it is.
L.A. REPORTING (312) 419-9292
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1
Q. And the only change from your written
2 testimony would be the inclusion of the references
3 to the exhibit numbers?
4
A. Yes, sir.
5
Q. And that's a true and accurate copy of
6 your written testimony?
7
A. Yes, it is.
8
MR. HARSCH: At this point in time I
9
would move that the written testimony of
10
Mr. Harty be included into the record as
11
though read.
12
MR. KARR: I have no objection.
13
HEARING OFFICER CROWLEY: That motion
14
is granted. And you have -- you will be
15
asking us to introduce as Joliet's Exhibit
16
No. 1 the narrative testimony of Harold Harty
17
of the City of Joliet?
18
MR. HARSCH: In addition, to be
19
included in the transcript as though read.
20
HEARING OFFICER CROWLEY: Yes.
21
MR. HARSCH: And I would move at this
22
point for the admission of Exhibit 1.
23
HEARING OFFICER CROWLEY: Admitted.
24
L.A. REPORTING (312) 419-9292
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1
(Whereupon, Exhibit No. 1
2
was received in
3
evidence.)
4 BY MR. HARSCH:
5
Q. And, Mr. Harty, did you request
6 Joliet's agronomist, Mr. Fiedler, to prepare a
7 letter for submission to the Pollution Control Board
8 in this proceeding?
9
A. Yes, I did.
10
Q. If I direct you to what has been
11 marked as Exhibit 2, is this a letter that
12 Mr. Fiedler prepared?
13
A. Yes, it is.
14
Q. And it's a true and accurate copy of
15 the letter?
16
A. Yes, it is.
17
MR. HARSCH: I would move for the
18
admission of Exhibit 2.
19
MR. KARR: I have no objection.
20
HEARING OFFICER CROWLEY: That's
21
admitted.
22
(Whereupon, Exhibit No. 2
23
was received in
24
evidence.)
L.A. REPORTING (312) 419-9292
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1
HEARING OFFICER CROWLEY: And I would
2
like to make clear for the record, Mr. Karr,
3
you did receive copies of all of this
4
material in advance of hearing; is that
5
correct?
6
MR. KARR: That is correct.
7
HEARING OFFICER CROWLEY: Thank you.
8 BY MR. HARSCH:
9
Q. Mr. Harty, drawing your attention to
10 Exhibit 3 in this proceeding, this is a copy of the
11 permit appeal that we filed on behalf of the City of
12 Joliet; is that correct?
13
A. Yes, it is.
14
Q. And attached to Exhibit 3 would be a
15 copy of the permit that we're seeking to challenge
16 in this proceeding?
17
A. Yes, it is.
18
MR. HARSCH: I would move for the
19
acceptance of Exhibit 3 into the record at
20
this time.
21
MR. KARR: It's a Board filing. I
22
don't know that it needs to be an exhibit,
23
but no objection.
24
HEARING OFFICER CROWLEY: Thank you.
L.A. REPORTING (312) 419-9292
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1
I agree, it's unnecessary, but there's no
2
problem with admitting it. It's admitted.
3
(Whereupon, Exhibit No. 3
4
was received in
5
evidence.)
6
MR. HARSCH: Thank you. That
7
concludes my direct of Mr. Harty.
8
MR. KARR: I have a couple of
9
questions.
10
CROSS EXAMINATION
11
By Mr. Karr
12
Q. Mr. Harty, again, my name is Gerald
13 Karr. I represent the Illinois EPA in this matter.
14 On Page 2 of your narrative, the last paragraph at
15 the bottom --
16
A. Let me get down there. Yes.
17
Q. It begins, the City of Joliet's land
18 application program.
19
A. Yes.
20
Q. It says it's become a model for others
21 to follow. Do you know what others -- who else has
22 followed this, sir?
23
A. I know that the EPA has gave it out to
24 other people and they have, you know, taken it on.
L.A. REPORTING (312) 419-9292
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1 Fox -- I don't want to misrepresent. Fox Valley or
2 Fox Metro has done it -- has seen it. I don't know
3 how much they incorporated it in their permit
4 because I did not have a look at Fox Metro's. I
5 think it's Fox Metro.
6
MR. HARSCH: Are you referring to the
7
former Aurora Sanitary District?
8
THE WITNESS: Yes.
9
MR. HARSCH: That's Fox Metro. The
10
confusion is Fox Metro is Aurora and Fox
11
River is Elgin.
12
MR. KARR: Okay.
13
HEARING OFFICER CROWLEY: Thank you.
14 BY MR. KARR:
15
Q. So you would just know -- you're just
16 familiar with this one other sanitary district that
17 may have used parts of this program?
18
A. Yes, sir.
19
Q. In that same paragraph the third line
20 begins, the only alternative would be to landfill.
21 Are you familiar with other uses of biosolids such
22 as using it for soil amendments to rehabilitate
23 brownfields properties?
24
A. No, sir, I am not.
L.A. REPORTING (312) 419-9292
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1
Q. Have you heard that biosolids can go
2 through a nutrification or melting process where it
3 becomes a usable glass aggregate product?
4
A. I have heard that, but I've heard the
5 cost is very prohibitive. It would be very
6 expensive to do.
7
Q. But it would be another alternative to
8 landfilling?
9
A. Yes, it would be. What I was stating
10 is our alternative would be landfill.
11
Q. Now turning your attention to Page 3
12 of your testimony in the third paragraph down about
13 the middle begins, this would eventually mean that
14 more and more land would be needed to be identified
15 by our agronomist and signed up to be part of the
16 program.
17
And I believe that's in reference
18 to a lower radium limit, limiting the amount of
19 applications; is that correct?
20
A. Application rates, yes, sir.
21
Q. Turning back, though, on Page 2, the
22 fourth paragraph down, the second sentence begins,
23 there has always been more demand for biosolids than
24 we have ever produced.
L.A. REPORTING (312) 419-9292
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1
A. Yes, sir. That is true, but at a rate
2 where -- farmers want it at a -- they don't want a
3 one-haul deal. If I go down to that rate, it would
4 be a one-time application to them. They would like
5 it every year on a continuous basis and at least ten
6 applications where they know they're going to get
7 it.
8
If a farmer is going to get it
9 just one time, it's very hard for the agronomist to
10 market that. And that's where it comes down to,
11 that you just have to have so much more land. But
12 it's hard to market when you can only say I'm going
13 to haul it to you, you can only get it one time and
14 that's it.
15
Q. Okay.
16
MR. KARR: That's all I have. Thank
17
you.
18
HEARING OFFICER CROWLEY: Thank you,
19
Mr. Harty.
20
THE WITNESS: Thank you.
21
MR. HARSCH: At this time I would call
22
Mr. Duffield.
23
(Witness sworn.)
24
L.A. REPORTING (312) 419-9292
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1 WHEREUPON:
2
DENNIS DUFFIELD
3 called as a witness herein, having been first duly
4 sworn, was examined and testified as follows:
5
DIRECT EXAMINATION
6
By Mr. Harsch
7
Q. Mr. Duffield, did you prepare written
8 testimony for this proceeding?
9
A. Yes, I did.
10
Q. If I draw your attention to what has
11 been marked as Exhibit 4, is that a copy of your
12 written testimony?
13
A. Yes, it is.
14
Q. Is it a true and accurate copy?
15
A. Yes, it is.
16
Q. And the only changes to that testimony
17 would be the inclusion of the reference to the
18 various exhibits?
19
A. That's correct.
20
MR. HARSCH: At this point in time I
21
guess I would move that the testimony be
22
included as though read into the record and
23
that Exhibit 4 be accepted.
24
MR. KARR: No objection.
L.A. REPORTING (312) 419-9292
16
1
HEARING OFFICER CROWLEY: It's agreed.
2
(Whereupon, Exhibit No. 4
3
was received in
4
evidence.)
5 BY MR. HARSCH:
6
Q. Mr. Duffield, in summary, do you have
7 an opinion as to whether or not the Illinois --
8 based on the various meetings that we've had with
9 the Illinois Environmental Protection Agency that
10 are referenced in the permit record that they accept
11 the ten millirem dose resulting from the application
12 of Joliet sludge to farm fields?
13
A. Yes. At the meeting of January 24th,
14 2007, the meeting notes from Jeff Hutton of the
15 Illinois EPA that are in the record, it said all
16 parties at the meeting agreed to ten millirems.
17
Q. And is it your understanding then that
18 IEMA, Illinois Department of Nuclear Safety, accepts
19 the ten millirem dose?
20
A. Based on that note, yes, it is.
21
Q. And is it the ten millirem dose
22 acceptance that allowed the Illinois Environmental
23 Protection Agency to increase the allowable
24 concentration in Joliet's original sludge
L.A. REPORTING (312) 419-9292
17
1 application permit from 0.1 to the subsequent ones
2 at 0.4?
3
A. Yes. At that same meeting IEMA did
4 some calculations and came up with the 0.4 as a
5 revision to the permit.
6
Q. Again, in summary, do you believe
7 that -- can you characterize what appears to be the
8 sole controversy in this proceeding?
9
A. The sole controversy appears to be
10 that IEMA does not accept that topsoil is stripped
11 before homes are built and they're calculating the
12 dose with topsoil underneath a house and it's not --
13 that is not allowed by most building codes, all
14 building codes I've been able to track down, and
15 it's not a normal practice.
16
Q. And why is that?
17
A. Because topsoil is not a structural
18 material.
19
Q. Based on your years of service at
20 Joliet as the director of public works and your
21 experience as an environmental consultant since
22 you've retired from Joliet are you generally
23 familiar with the Board's tiered approach to
24 corrective action regulations or TACO regulations?
L.A. REPORTING (312) 419-9292
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1
A. I understand the concept.
2
Q. Do these regulations rely on various
3 engineering controls such as the use of three feet
4 of cover or pavement?
5
A. Yes, they do.
6
Q. Do these rules also rely upon, at
7 times, local ordinances that prohibit the use of
8 groundwater, for example?
9
A. Yes, they do.
10
Q. Is the concept of requiring the
11 removal of topsoil prior to building a house, in
12 your opinion, similar to those types of --
13
A. Yes. It's the same type of control.
14
Q. And, in fact, did you not recommend
15 that to the Illinois EPA as part of your report
16 that's contained in this record?
17
A. Yes, I did.
18
Q. And that would be for inclusion as a
19 condition to any permit that was granted relying on
20 that assumption?
21
A. That's correct.
22
Q. Can you summarize for the record where
23 Joliet is in terms of the construction of facilities
24 to comply with the drinking water radium standard?
L.A. REPORTING (312) 419-9292
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1
A. Joliet has completed the construction
2 of all their treatment facilities. Those facilities
3 rely upon discharge of the treatment residuals to
4 the sanitary sewer and ultimately ending up in the
5 sludge.
6
Joliet's invested over $50 million
7 in a water program to comply with the drinking water
8 standard for radium and now it appears that the
9 problem has translated over in a land problem.
10
When I was director of public
11 works in Joliet in 2004 I had the first
12 communications with Illinois EPA that indicated that
13 decisions need to be made about what the appropriate
14 disposal of radium -- sludge containing radium was
15 because a lot of communities were making decisions
16 about discharge of residuals and treatment and here
17 we are 2009 and we still don't have it resolved.
18
Q. That's what, in essence, this appeal
19 is all about?
20
A. That's right.
21
MR. HARSCH: I have no further
22
questions.
23
MR. KARR: I have no questions.
24
HEARING OFFICER CROWLEY: Thank you,
L.A. REPORTING (312) 419-9292
20
1
very much, Mr. Duffield.
2
MR. HARSCH: At this time I would call
3
Mr. Port, please.
4
(Witness sworn.)
5 WHEREUPON:
6
ELI PORT
7 called as a witness herein, having been first duly
8 sworn, was examined and testified as follows:
9
DIRECT EXAMINATION
10
By Mr. Harsch
11
Q. Mr. Port, I would like you to review
12 what has been marked as Exhibit 8 that's before you.
13 Is this a true and accurate copy of the written
14 testimony that you prepared for this proceeding?
15
A. It is.
16
MR. HARSCH: At this point in time I
17
would move that the testimony be accepted
18
into the record as though read and that
19
Exhibit 8 be accepted.
20
MR. KARR: No objection.
21
HEARING OFFICER CROWLEY: So admitted.
22
(Whereupon, Exhibit No. 8
23
was received in
24
evidence.)
L.A. REPORTING (312) 419-9292
21
1 BY MR. HARSCH:
2
Q. Mr. Port, I guess in summary follow-up
3 do you have an opinion as to whether based on our
4 various meetings that we've had that are detailed
5 into the record as well as your individual meetings
6 with IEMA, the Department of Nuclear Safety staff
7 that are also referenced in the record, that both
8 IEPA and IEMA accept the ten millirem dose as being
9 an acceptable number?
10
A. Yes.
11
Q. And can you characterize what appears
12 to be the sole point of dispute in this matter?
13
A. The issue that we have discussed
14 repeatedly has been whether it is reasonable to
15 assume that houses will be built as required by code
16 or follow conventional building practices or whether
17 the non-conforming homeowner, someone who builds a
18 home that's in non-conformance with either building
19 practices or code should be protected should he
20 choose to build a home on uncompacted topsoil.
21
Q. Have you evaluated the RESRAD modeling
22 work done by IEMA?
23
A. To some extent, yes.
24
Q. And have you looked at that modeling
L.A. REPORTING (312) 419-9292
22
1 to see how it compares to the modeling that you
2 performed?
3
A. Yes.
4
Q. And if IEMA were to have accepted the
5 assumptions, the removal of topsoil, could you tell
6 us what the result would be, if you know?
7
A. I believe that when they ran the
8 RESRAD model, which is a computer code, with topsoil
9 removed, because they used some input parameters
10 that were different from ours, we used -- they used
11 default values and we used values supplied by the
12 City of Joliet, they, at one picocurie per gram
13 increased loading of the soil at under six millirem
14 and we have about nine millirem.
15
HEARING OFFICER CROWLEY: If we can go
16
off the record for a minute.
17
(Whereupon, a discussion
18
was had off the record.)
19
HEARING OFFICER CROWLEY: Back on the
20
record when you're ready, Mr. Harsch.
21 BY MR. HARSCH:
22
Q. In our initial discussions with
23 Illinois EPA and IEMA, Rich Allen was present and
24 involved in this matter for IEMA; is that correct?
L.A. REPORTING (312) 419-9292
23
1
A. Yes.
2
Q. Is he a health physicist?
3
A. He is.
4
Q. Do you have continued involvement with
5 IEMA, Department of Nuclear Safety, on an ongoing
6 basis?
7
A. I do.
8
Q. With Mr. Allen's departure, are any of
9 the other gentlemen, who have been identified in the
10 record at IEMA, health physicists?
11
A. I believe not. The two people I know
12 involved with this project are not. They are
13 engineers.
14
Q. Can you perhaps place into perspective
15 what the difference in dose is from the assumption
16 of removing topsoil or not removing the topsoil?
17
A. Yes. And, frequently, in explaining
18 load doses it's difficult to assign any significance
19 to the doses other than to compare them with other
20 sources of comparable dose.
21
I did a quick investigation of the
22 doses -- the difference in doses of a person who
23 lives in a wooden structure versus a brick or
24 masonry structure. And the ranges -- in the United
L.A. REPORTING (312) 419-9292
24
1 States the estimates are the difference between wood
2 and brick. This is the EPA's estimate from its
3 website, 77 millirem. The University of Iowa
4 Healthcare System has an estimate of 75 millirem for
5 the difference between a wooden house and a brick
6 house. The European Nuclear Society has difference
7 that ranges up to about 200 millirem for a
8 difference between living in a wooden structure and
9 living in a brick and cement structure.
10
Q. So that's on the low end then of those
11 exposures for a masonry structure is what basically
12 the increase in dose we're talking about?
13
A. Yes, it is.
14
MR. HARSCH: No further questions.
15
MR. KARR: I just have a couple.
16
CROSS EXAMINATION
17
By Mr. Karr
18
Q. Mr. Port, in your prepared testimony
19 on the second page, fifth paragraph down --
20
HEARING OFFICER CROWLEY: And we're
21
looking at Exhibit 8, just so it's clear.
22 BY MR. KARR:
23
Q. Exhibit 8, Page 2, it begins, the
24 radium concentration in the Joliet water supply.
L.A. REPORTING (312) 419-9292
25
1 That last sentence of that paragraph, the
2 application of the sludge to land adds the radium in
3 the sludge to the radium naturally in the soil or
4 resulting from prior applications of phosphate
5 fertilizer.
6
So I guess what I'm trying to
7 understand is through these land applications of
8 these biosolids or sludges, the radium content is
9 increased or the radium concentration?
10
A. Over what might already be a larger
11 number that's in soil, yes.
12
Q. And the hazard associated with the
13 radium is the concentration; is that correct?
14
A. If we assume that the risk is linear,
15 which is a controversial assumption, then if we
16 double the concentration, we double the risk.
17
MR. KARR: I have nothing further.
18
REDIRECT EXAMINATION
19
By Mr. Harsch
20
Q. I neglected to ask if Exhibit 9 is the
21 document you have referenced in your written
22 testimony?
23
A. Yes.
24
MR. HARSCH: And I would move for the
L.A. REPORTING (312) 419-9292
26
1
inclusion of Exhibit 9 into the record.
2
RECROSS EXAMINATION
3
By Mr. Karr
4
Q. Before I say one way or another, I was
5 just trying to find that quote. It seems that
6 that's a quote from Exhibit 9 that you put into your
7 testimony. Somehow maybe I missed it or I'm not
8 reading Exhibit 9 accurately.
9
A. On what page is the quote?
10
Q. This would be on Page 4 where it
11 references Exhibit 9, the third paragraph down.
12
HEARING OFFICER CROWLEY: We're
13
looking at Exhibit 8.
14 BY MR. KARR:
15
Q. Page 4 of Exhibit 8, third paragraph
16 references Exhibit 9. It appears there's a quote
17 from Exhibit 9 in Exhibit 8 and I was trying to find
18 that quote in Exhibit 9.
19
A. Page 2 of Exhibit 9.
20
Q. I just found it. I'm sorry. I found
21 it.
22
A. Page 2.
23
Q. Yeah.
24
MR. KARR: I have no objection.
L.A. REPORTING (312) 419-9292
27
1
HEARING OFFICER CROWLEY: Thank you.
2
So admitted.
3
(Whereupon, Exhibit No. 9
4
was received in
5
evidence.)
6
MR. HARSCH: Nothing further.
7
HEARING OFFICER CROWLEY: Thank you,
8
Mr. Port.
9
MR. HARSCH: At this time I would call
10
Dr. Richard Toohey.
11
(Witness sworn.)
12 WHEREUPON:
13
RICHARD TOOHEY
14 called as a witness herein, having been first duly
15 sworn, was examined and testified as follows:
16
DIRECT EXAMINATION
17
By Mr. Harsch
18
Q. Dr. Toohey, did you prepare written
19 testimony for this proceeding?
20
A. Yes, I did.
21
Q. And if I ask you to look at what's
22 been marked as Exhibit 10 before you, is this a copy
23 of your written testimony?
24
A. Yes, it is.
L.A. REPORTING (312) 419-9292
28
1
Q. I believe before the hearing you
2 indicated that you had found one item that you
3 wanted to correct?
4
A. Yes, that is true. In rereading this
5 I noticed I had inadvertently omitted a component of
6 the average medical dose. So if you go to Page 3 of
7 the exhibit, first paragraph, fourth line, the
8 written testimony says, in addition the average US
9 resident receives another 240 millirem from man-made
10 sources, primarily medical uses. The correct figure
11 is 320 millirem. I had neglected to include 80
12 millirem from nuclear medicine procedures.
13
And with that increase, then the
14 total dose instead of being 540 millirem is actually
15 620 millirem. I apologize for that omission.
16
MR. HARSCH: With those two
17
corrections, as explained by Dr. Toohey, I
18
would move for the inclusion of Dr. Toohey's
19
testimony as though read into the record and
20
acceptance of Exhibit 10.
21
MR. KARR: I have no objection.
22
HEARING OFFICER CROWLEY: Thank you.
23
I have handmade the corrections in the
24
exhibit that will be presented to the Board.
L.A. REPORTING (312) 419-9292
29
1
I will ask that you just double check that I
2
did that correctly and then I'll initial it.
3
Thank you.
4
(Whereupon, Exhibit
5
No. 10 was received in
6
evidence.)
7 BY MR. HARSCH:
8
Q. Dr. Toohey, your written testimony is
9 based upon the information contained in the record
10 of the permit appeal in this proceeding that was
11 provided to you?
12
A. That is correct.
13
Q. And is the sum of your testimony
14 intended to guide the Board as to what is or is not
15 a safe decision?
16
A. Yes. I believe that would be the
17 thrust of it.
18
Q. And can you briefly summarize your
19 conclusion?
20
A. My conclusion is based on the record
21 from Joliet and also existing federal regulations
22 that a dose of ten millirem a year from a man-made
23 source of radiation is considered to be a safe level
24 and is below the standard that every federal agency
L.A. REPORTING (312) 419-9292
30
1 applies in various federal regulations.
2
Q. So you would support the Pollution
3 Control Board's determination that the Illinois
4 Environmental Protection Agency's permit decision
5 should be reversed in this matter?
6
A. Yes, I would because as others have
7 noted, if the topsoil is removed before a house
8 would be built on soil to which radium has been
9 added up to one picocurie per gram, the dose from
10 radon would be negligible and the total dose would
11 then be about seven millirem and less than the ten
12 millirem limit.
13
MR. HARSCH: I have no further
14
questions.
15
MR. KARR: I just have one or two
16
questions here, Dr. Toohey.
17
CROSS EXAMINATION
18
By Mr. Karr
19
Q. Page 2 of your testimony, right about
20 the middle there's a sentence that says, the
21 important thing to note is that the limits are for
22 dose because potential risks to human health from
23 radiation exposure are assumed to be directly
24 proportional to the radiation dose received.
L.A. REPORTING (312) 419-9292
31
1
And the question I have is if
2 there is an increase in the concentration of the --
3 I guess in this case radium, does that lead to a
4 greater dose or exposure?
5
A. Yes. An increase in radium would lead
6 to greater dose. The question is does a slight
7 increase in dose really cause an increase in risk?
8 We assume it does for regulatory purposes, but
9 there's no convincing scientific evidence of these
10 levels of dose that it actually does increase the
11 risk in any measurable fashion.
12
MR. KARR: Thank you. That's all I
13
have.
14
MR. HARSCH: Thank you, Dr. Toohey.
15
HEARING OFFICER CROWLEY: Thank you,
16
sir.
17
MR. HARSCH: I did not move for the
18
introduction of several of the other
19
pleadings that were referenced in Dennis
20
Duffield's testimony. That would be Exhibits
21
6, 7 and 8. They are all pleadings that were
22
filed in this proceeding.
23
I can move for the acceptance just
24
because they referenced in the testimony as
L.A. REPORTING (312) 419-9292
32
1
exhibits is probably the only reason.
2
MR. KARR: You know, again, it's the
3
same thing, these are prior petitions for
4
review, they're part of the Board's public
5
records. I think the Board can take notice
6
of them.
7
HEARING OFFICER CROWLEY: Thank you.
8
Mr. Karr. We have accepted Joliet's Exhibits
9
1 through 10 as presented today just to make
10
sure the record is clear.
11
MR. HARSCH: Thank you. That rests
12
the direct case of Joliet in this matter.
13
HEARING OFFICER CROWLEY: Thank you.
14
Mr. Karr?
15
MR. KARR: And the respondent has no
16
witnesses to call. That would conclude our
17
side of the case.
18
HEARING OFFICER CROWLEY: I'm sorry?
19
MR. KARR: Respondent, Illinois EPA,
20
has no witnesses to call. That would
21
conclude our case in chief.
22
HEARING OFFICER CROWLEY: Thank you.
23
Do either of you have any closing remarks you
24
want to make on the record?
L.A. REPORTING (312) 419-9292
33
1
MR. HARSCH: I just find it a little
2
remarkable that there's no one here from
3
Illinois Environmental Protection Agency, no
4
one here from IEMA. The record was -- as
5
stated in the record on Page 3, that was a
6
concern that we've raised in our last meeting
7
with IEPA.
8
So I guess their absence does
9
speak perhaps some volumes to the issue at
10
hand for the Board and the Board can take
11
whatever conclusion it wants to.
12
HEARING OFFICER CROWLEY: Thank you.
13
Mr. Karr?
14
MR. KARR: And I would just counter
15
that the Agency's record speaks for itself.
16
There's certainly sufficient evidence
17
contained in the record for support of the
18
Agency's decision to deny this modification
19
to the permit. We'd ask that the Board
20
uphold that decision.
21
HEARING OFFICER CROWLEY: Thank you.
22
I assume that you would each like to file
23
closing briefs?
24
MR. KARR: I think that would be the
L.A. REPORTING (312) 419-9292
34
1
best way to go.
2
MR. HARSCH: Yes.
3
HEARING OFFICER CROWLEY: Can we go
4
off the record and come up with some
5
agreeable dates for that?
6
(Whereupon, a discussion
7
was had off the record.)
8
HEARING OFFICER CROWLEY: We're back
9
on the record. We've had a brief discussion
10
of briefing. The current Board decision
11
deadline is April 2nd. The Board prefers to
12
have at least 30 days of time to deliberate
13
and draft its opinion and order. We have
14
asked that the final brief be filed no later
15
than February 27th.
16
The court reporter indicates that
17
the Board will receive the transcript on or
18
before January 27th. Based on that receipt
19
date, the parties' initial and simultaneous
20
filings are due in the Board's office on
21
February 20th and any response they may have
22
to the other's filings will be due in the
23
Board's office on February 27th.
24
Again, this briefing schedule is
L.A. REPORTING (312) 419-9292
35
1
based on the April 2nd deadline. If there
2
are difficulties producing the transcript or
3
complying with the schedule, Hearing Officer
4
Halloran can extend them, provided that the
5
City is willing to extend the decision
6
deadline. If the City is not, then we'll
7
need to keep to this original schedule.
8
MR. HARSCH: Understand. Thank you
9
very much.
10
MR. KARR: Thank you.
11
HEARING OFFICER CROWLEY: Thank you.
12
MR. HARSCH: Thanks, Counselor, for
13
agreeing to the inclusion of the testimony as
14
though read.
15
HEARING OFFICER CROWLEY: Thank you.
16
(Which were all the proceedings
17
had in the above-entitled cause
18
on this date.)
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
36
1 STATE OF ILLINOIS )
) SS.
2 COUNTY OF WILL )
3
4
I, Tamara Manganiello, CSR, RPR, do hereby
5 certify that I reported in shorthand the proceedings
6 held in the foregoing cause, and that the foregoing
7 is a true, complete and correct transcript of the
8 proceedings as appears from my stenographic notes so
9 taken and transcribed under my personal direction.
10
11
______________________________
TAMARA MANGANIELLO, CSR, RPR
12
License No. 084-004560
13
14
15
16
17
18
19
SUBSCRIBED AND SWORN TO
20 before me this ____ day
of _______, A.D., 2009.
21
_______________________
22 Notary Public
23
24