People of the State of Illinois v. Unique Marble Products, Inc.

1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

4 PEOPLE OF THE STATE OF ILLINOIS,

5 Petitioner,

6 vs. No. PCB 97-064

7 UNIQUE MARBLE PRODUCTS, INC.,

8 Respondent.

12 Proceedings held on April 29, 1997 at

13 10:35 a.m., at the

Effingham County Office

14 Building, First Floor Conference Room, 101 North

15 Fourth Street,

Effingham, Illinois, before the

16 Honorable Michael L. Wallace, Hearing Officer.

20 Reported by: Darlene M.

Niemeyer, CSR, RPR

CSR License No.: 084-003677

22 KEEFE REPORTING COMPANY

11 North 44th Street

23 Belleville, IL 62226

(618) 277-0190

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A P

P E A R A N C E S

STATE OF ILLINOIS, OFFICE OF THE ATTORNEY

3 GENERAL

BY: Julia M. Gentile, Esq.

4 Assistant Attorney General

Environmental Bureau

5 500 South Second Street

Springfield, Illinois 62706

6 On behalf of the People of the State of

Illinois.

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

8 BY: John

Waligore, Esq.

Assistant Counsel

9 2200 Churchill Road

Springfield, Illinois 62794-9276

10 On behalf of the Illinois EPA.

11 PARKER, SIEMER, AUSTIN & RESCH

BY: William W. Austin, Esq.

12 307 North Third Street

Effingham, Illinois 62401

13 On behalf of Respondent.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 I N D E X

2 WITNESS PAGE NUMBER

3 Joe

Goodner 9, 25

5 Leslie David Morrow 32

7 Guy R.

Gilmore, Jr. 41, 51

Becky Monica

Gilmore 55, 60, 62

E X H I B I T S

NUMBER MARKED FOR

I.D. ENTERED

People's Exhibit 1 13 25

13 People's Exhibit 2 15 25

People's Exhibit 3 17 25

14 People's Exhibit 4 21 25

People's Exhibit 5 22 25

15 People's Exhibit 6 23 25

People's Exhibit 7 23 25

KEEFE REPORTING COMPANY

Belleville, Illinois

1 P R O C E

E D I N G S

2 (April 29, 1997; 10:35 a.m.)

3 HEARING OFFICER WALLACE: Pursuant to the

4 direction of the Illinois Pollution Control Board,

5 I now call Docket PCB 97-64.

6 This is the matter of The People of the

7 State of Illinois versus Unique Marble Products,

8 Inc.

9 May I have appearances for the record,

10 please.

11 MS. GENTILE: Julia Gentile, Assistant

12 Attorney General, on behalf of the People.

13 With me is John --

14 MR. WALIGORE: John

Waligore, Assistant

15 Counsel for the Environmental Protection Agency.

16 HEARING OFFICER WALLACE: For the

17 Respondent?

18 MR. AUSTIN: William W. Austin, on behalf

19 of the Respondent.

20 HEARING OFFICER WALLACE: Thank you. Let

21 the record reflect there are no other appearances

22 at today's hearing.

23 Are there any preliminary matters, Ms.

24 Gentile?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 MS. GENTILE: I think we have addressed

2 them, and I will be referring to them in my opening

3 statement.

4 HEARING OFFICER WALLACE: The same for

5 you, Mr. Austin?

6 MR. AUSTIN: Yes, correct.

7 HEARING OFFICER WALLACE: All right. You

8 may proceed with your opening statement, if you

9 wish.

10 MS. GENTILE: The case before you today

11 involves the failure of the Respondent to file

12 reports as required under Section 313 of the

13 Federal Emergency Planning and Community Right to

14 Know Act of 1986.

15 Section 313 requires annual reports to be

16 filed by certain companies which release any of the

17 listed toxic chemicals or compounds in the

18 environment. This requirement was inspired by the

19 Bhopal, India Disaster of 1984.

20 In 1987 the Illinois General Assembly

21 amended the Illinois Environmental Protection Act

22 to provide for a coordinated state implementation,

23 Section 313. This amendment also established an

24 orderly procedure for the public to access this

KEEFE REPORTING COMPANY

Belleville, Illinois

1 information.

2 Under the Act the Illinois EPA is charged

3 with the administration of Section 313, which

4 requires industry to report annually to the U.S.

5 EPA and the Illinois EPA via the Toxic Chemical

6 Release Form, known as Form R. The purpose of Form

7 R reporting laws are to give communities in which

8 reportable toxic chemicals are used, manufactured,

9 processed or released, adequate information about

10 what chemicals a company has on its site and the

11 associated risks.

12 This case presents four issues: Whether

13 the Respondent was required to file the U.S. EPA

14 Toxic Chemical Release Inventory Reporting Form,

15 referred to as Form R, for styrene and

16 dichloromethane for calendar year 1994.

17 Subsequent to the filing of the complaint

18 in this case the Respondent admitted in discovery

19 that it was required to file a Form R for

20 dichloromethane for calendar year 1994. In October

21 1996 the Respondent submitted a Form R for

22 dichloromethane for calendar year 1994 to my

23 office.

24 This morning the Respondent presented to

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Counsel two Forms R for styrene for calendar years

2 1994 and 1995, and thereby admits that the

3 Respondent was required to file a Form R for

4 styrene for calendar year 1994.

5 The second issue was whether the

6 Respondent received adequate notice pursuant to

7 Section 25 B(6) of the Illinois Environmental

8 Protection Act before this action was brought.

9 On September 1, 1995, the Illinois EPA

10 mailed a certified letter to Respondent. In

11 materials provided in discovery the Respondent

12 admitted that one Susan Wilson signed the return

13 receipt for the certified letter on September 5th,

14 1995, and Susan Wilson was an employee of Unique

15 Marble on September 5th, 1995. The State will show

16 this was adequate notice.

17 The third issue is whether Respondent

18 responded to the notice within the grace period

19 allowed. In the materials provided in discovery

20 the Respondent admitted that it did not respond to

21 the notice within the 30 days allowed and further

22 did not file either Form R on or before December

23 31st, 1995.

24 The final issue here is a civil penalty

KEEFE REPORTING COMPANY

Belleville, Illinois

1 that is due for failure to comply with Form R

2 reporting requirements. Section 42 B(5) of the

3 Illinois Environmental Protection Act requires that

4 a person who fails to file a Form R in a timely

5 manner is liable for a civil penalty of $100.00 per

6 day for each day the form is late. The period of

7 time upon which the civil penalty is calculated

8 runs from the end of the 30 day grace period

9 through the end of that calendar year.

10 Unique Marble has failed to submit two

11 Forms R, one for

dichloromethane and the other for

12 styrene within the 30 day grace period, which ended

13 on October 5th, 1995, and that Unique Marble is

14 liable for a civil penalty of $100.00 per day for

15 each day from October 6, 1995 through December 31,

16 1995, for a total of 86 days for each Form R that

17 was not filed in a timely manner.

18 The State is, therefore, requiring a

19 civil penalty of $8,600.00 for each of the two

20 Forms R that were not so filed, for a total of

21 $17,200.00.

22 That's all I have.

23 HEARING OFFICER WALLACE: All right. Mr.

24 Austin?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 MR. AUSTIN: Thank you. The State seeks

2 the imposition of a civil penalty for the alleged

3 failure to file the respective Forms R.

4 It is the Respondent's position that the

5 imposition of a penalty is improper for the reason

6 that the grace period never began running. And

7 that reason is that the notice given by the

8 Illinois Environmental Protection Agency was, in

9 fact, defective or reasonably that would be shown

10 in the evidence adduced.

11 HEARING OFFICER WALLACE: Thank you. Do

12 you have witnesses, Ms. Gentile?

13 MS. GENTILE: Yes, we do.

14 (Whereupon the witness was

15 sworn by the Hearing Officer.)

16 HEARING OFFICER WALLACE: You may

17 proceed.

18 MS. GENTILE: Thank you.

19 J O E G O

O D N E R,

20 having been first duly sworn by the Hearing

21 Officer,

saith as follows:

22 DIRECT EXAMINATION

23 BY MS. GENTILE:

24 Q Please state your name and spell your

KEEFE REPORTING COMPANY

Belleville, Illinois

1 last name.

2 A Joe

Goodner, G-O-O-D-N-E-R.

3 Q And, Mr.

Goodner, would you describe your

4 educational background for us?

5 A Sure. I have a Bachelor of Science

6 Degree in Structural Engineering from the

7 University of Illinois in Chicago, and graduate

8 study in Thermal and Environmental Engineering from

9 SIU Carbondale, and in Public Administration from

10 Sangamon State University.

11 Q And do you have any affiliations with

12 professional organizations?

13 A Yes, I am a member of the Illinois and

14 National Societies of Professional Engineers, and I

15 am a Registered Professional Engineer in Illinois.

16 Q By whom are you employed?

17 A The Illinois Environmental Protection

18 Agency.

19 Q When did you begin work at the Agency?

20 A In 1976.

21 Q And what was your initial assignment?

22 A Initially I was assigned to the Permit

23 Section, at that time the Division of Water

24 Pollution Control.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q Okay. Have you been continuously

2 employed by the Illinois EPA since 1976?

3 A Yes, I have.

4 Q What is your present position?

5 A My present position is Manager of the

6 Emergency Planning Unit in the Office of Chemical

7 Safety.

8 Q And how long have you been in that

9 position?

10 A Approximately 12 years. A little over 12

11 years.

12 Q And focusing on your present position,

13 have you had an opportunity to play any policy

14 making roles?

15 A Relative to the Form R program, I have

16 developed and implemented the policies and

17 procedures for carrying out Title 6 B of the

18 Environmental Protection Act.

19 Q When did the Form R program begin?

20 A It was instituted under Federal Emergency

21 Planning and Community Right to Know Act of 1986,

22 and the first reportable calendar year under that

23 law and, of course, the State law was 1987.

24 Q So you have been involved in the Form R

KEEFE REPORTING COMPANY

Belleville, Illinois

1 program since the beginning of the program; is that

2 correct?

3 A Yes.

4 Q What is a Form R?

5 A

A Form R is the federal name for the

6 reporting form to annually report toxic chemical

7 release information under the federal law. EPCRA

8 is the acronym for the Emergency Planning and

9 Community Right to Know Act.

10 Q Who is required to file the Form R?

11 A Facilities having ten or more full-time

12 employees being in the manufacturing category

13 industry, which is standard industrial

14 classification codes 20 through 39, and then

15 surpassing certain thresholds of toxic chemical

16 manufacturer process or otherwise use, which is --

17 there was a reducing threshold for the

18 manufacturing process, but that now since 1989

19 remains at 25,000 pounds a year and otherwise used

20 has always been 10,000 pounds a year or more.

21 Q How does a company know which chemicals

22 are considered toxic and which trigger these Form R

23 requirements?

24 A There is a federally published list

KEEFE REPORTING COMPANY

Belleville, Illinois

1 which, of course, originated in 1986 and has been

2 modified almost annually since that time, and the

3 modifications are published in the federal

4 register.

5 (Whereupon a document was duly

6 marked for purposes of

7 identification as People's

8 Exhibit 1 as of this date.)

9 Q (By Ms. Gentile) Okay. I am going to

10 hand you what I have marked as People's Exhibit

11 Number 1, and ask if you could look at that?

12 MR. AUSTIN: May I see that?

13 MS. GENTILE: Sure. I am sorry.

14 Q (By Ms. Gentile) Okay. Mr.

Goodner, what

15 is that?

16 A These are the federally published

17 reporting instructions and the form for calendar

18 year 1994.

19 Q Okay. Are these publications provided to

20 the public, to the companies?

21 A Yes, they are. The U.S. EPA, each year,

22 sends out the new reporting forms to facilities who

23 have reported to them the prior year, so that's the

24 basis of their list.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q For calendar year 1994 both of the toxic

2 chemicals,

dichloromethane and styrene, were on

3 that list?

4 A Yes, they were.

5 Q Okay. Thank you. How do you determine

6 whether companies are in compliance with Form R

7 requirements?

8 A One mechanism is to look at the list of

9 filers for the previous calendar year, and usually

10 during the month of July, when the forms are coming

11 in, we compare that with who we have heard from,

12 who we have received reports from the current

13 calendar year. Those we have not heard from may be

14 in question.

15 Q Okay. Did you have an occasion to review

16 the compliance status of the Respondent in this

17 case with respect to Form R submissions?

18 A Yes, I did.

19 Q Okay. When were the Form

Rs due for

20 calendar year 1994?

21 A For calendar year 1994, July 1, 1995.

22 Q Okay. So it was subsequent to July 1,

23 1995 that you reviewed the compliance status for

24 Unique Marble in this case?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A Yes, it was.

2 Q Okay. You had just testified that you

3 compared the previous years submittals with the

4 submittals of the current year; is that correct?

5 A That is correct.

6 Q Okay. So did that file review take

7 place? Did you review previous submittals from

8 Unique Marble versus the ones after -- any

9 submittals after July 1995?

10 A Yes, I did.

11 Q Okay. What did your review show?

12 A It showed at the time of that review that

13 we had not received a 1994 Form R for either

14 chemical, which we had previously received.

15 Q And what did you do?

16 A Based on that information, I directed

17 that a compliance inquiry letter be sent to, among

18 others, Unique Marble.

19 Q Okay. I am going to be handing you what

20 I have just marked as People's Exhibit Number 2.

21 (Whereupon said document was

22 duly marked for purposes of

23 identification as People's

24 Exhibit 2 as of this date.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q (By Ms. Gentile) I want you to look at

2 that. I want you to -- do you recognize that?

3 A Yes, I do.

4 Q Okay. Is that the noncompliance letter

5 that you had just talked about?

6 A Yes, it is.

7 Q What is the date?

8 A It is dated September 1st, 1995.

9 Q And who is it directed to?

10 A It is directed to Mr. Guy R.

Gilmore,

11 Jr., President, Unique Marble Products,

12 Incorporated, 2600 South Rainy,

Effingham,

13 Illinois, 62401.

14 Q Why did you direct a letter to that

15 person at that address?

16 A Because this name, the signature of the

17 name, and this exact address had appeared on the

18 previous Form

Rs which we received from Unique

19 Marble.

20 Q Okay. And is that the policy and

21 procedure of your unit to review previous years

22 submittal to determine where you mail any

23 correspondence, if there is a question on the Form

24 R?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A Yes, it is.

2 Q Okay. Attached to this letter is --

3 well, what is attached to this letter?

4 A

A copy of a receipt for certified mail

5 dated -- the date of delivery is given as 09-05-95.

6 Q Okay. Thank you. I am going to hand you

7 now what has been marked as People's Exhibit Number

8 3.

9 (Whereupon said document was

10 duly marked for purposes of

11 identification as People's

12 Exhibit 3 as of this date.)

13 Q (By Ms. Gentile) I have a copy for

14 Counsel, as well. If you could identify that?

15 A Yes. It is a completed Form R for

16 calendar year 1990.

17 HEARING OFFICER WALLACE: I am sorry.

18 What year?

19 THE WITNESS: 1990.

20 HEARING OFFICER WALLACE: Okay. Thank

21 you.

22 THE WITNESS: It is from Unique Marble.

23 MR. AUSTIN: What is the relevancy of

24 this?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 MS. GENTILE: The relevancy is that I am

2 going to be moving into evidence previous

3 submittals of Unique Marble showing that on every

4 Form R that has been submitted they have facility

5 identification, they have indicated the same

6 address as the letter was directed to, and the

7 mailing address as the same.

8 MR. AUSTIN: The address is admitted.

9 That's not an issue.

10 HEARING OFFICER WALLACE: Well, we

11 haven't --

12 MS. GENTILE: I think it is. I think

13 that the procedure that the Agency used is at

14 issue.

15 MR. AUSTIN: Well, the procedure

16 definitely is, but the address isn't.

17 HEARING OFFICER WALLACE: Well, I have

18 no --

19 MR. AUSTIN: The address --

20 HEARING OFFICER WALLACE: I am sorry.

21 There is no stipulation in the record that -- to

22 this address.

23 MS. GENTILE: If you want to stipulate

24 that Unique Marble, for all of the -- from 1990

KEEFE REPORTING COMPANY

Belleville, Illinois

1 through 1993 and, in fact, 1994, when it submitted

2 the Form R for

dichloromethane in October of 1996,

3 which is after the filing of this complaint, used

4 the mailing address as the same one that the Agency

5 relied upon.

6 For any questions that the Agency would

7 have on Form

Rs, they were directed to write that

8 address, and that person was named as both the

9 technical and public contact. I think that is an

10 issue.

11 MR. AUSTIN: I am not prepared to

12 stipulate to that.

13 MS. GENTILE: All right. Then I think we

14 have to proceed.

15 HEARING OFFICER WALLACE: Yes, you may

16 proceed.

17 MS. GENTILE: Okay.

18 Q (By Ms. Gentile) Mr.

Goodner, referring

19 to the Form R for 1990, People's Exhibit Number 3,

20 there is a section on the first page, number three,

21 facility identification, and what information is

22 there? What address is given?

23 A The name of the facility is Unique Marble

24 Products, Incorporated. The street address is 2600

KEEFE REPORTING COMPANY

Belleville, Illinois

1 South Rainy Road, the City of

Effingham, the State

2 of Illinois, the zip code is 62401.

3 Q Okay. And the technical contact name?

4 A Guy R.

Gilmore, Jr.

5 Q And what does technical contact mean?

6 A Technical contact is a name and a

7 telephone number given so that any requests can be

8 discussed, technical aspects of the submittal with

9 a facility representative.

10 Q And the public contact, the name given

11 there?

12 A The public contact is likewise a contact

13 person name and telephone number at the facility

14 who can discuss, in general, the less technical or

15 nontechnical issues and perhaps interpret some of

16 the technical issues for the public.

17 Q And that person's name is?

18 A Guy R.

Gilmore, Jr.

19 Q Okay. Showing you, again, People's

20 Exhibit Number 2, if you want to keep that, and

21 Exhibit 3, and are the addresses the same and the

22 person's name the same?

23 A Yes, they are.

24 Q Okay. I hand you what has been marked as

KEEFE REPORTING COMPANY

Belleville, Illinois

1 People's Exhibit Number 4.

2 (Whereupon said document was

3 duly marked for purposes of

4 identification as People's

5 Exhibit 4 as of this date.)

6 Q (By Ms. Gentile) I will ask you to

7 identify that.

8 A This is the reporting Form R for calendar

9 year 1991 for Unique Marble Products, Incorporated.

10 MR. AUSTIN: May the record show a

11 continuing objection by the Respondent to these

12 previous Forms R?

13 HEARING OFFICER WALLACE: So noted.

14 Q (By Ms. Gentile) In section -- Mr.

15 Goodner, in section number four, facility

16 identification, the name and address of the

17 facility, we could make it a little -- well, maybe

18 you should read it.

19 A It is Unique Marble Products,

20 Incorporated, 2600 South Rainy Road,

Effingham,

21 Illinois, 62401.

22 Q And there is another block below that

23 that says mailing address.

24 A It says the same as above.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q Okay. And is that -- comparing the

2 letter to the address, is that the same?

3 A Yes, it is.

4 Q All right.

5 (Whereupon a document was duly

6 marked for purposes of

7 identification as People's

8 Exhibit 5 as of this date.)

9 Q (By Ms. Gentile) Okay. I hand you

10 People's Exhibit Number 5, and ask you to identify

11 that?

12 A It is the reporting Form R for calendar

13 year 1992 from Unique Marble Products,

14 Incorporated.

15 Q And section four, facility

16 identification, is the address and name the same as

17 on People's Exhibit Number 2, which is the

18 September 1st, 1995 letter?

19 A Yes, it is.

20 Q And the mailing address on Form R, what

21 does it --

22 A The same as above, meaning, yes,

23 identically the same.

24 Q Okay.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 (Whereupon a document was duly

2 marked for purposes of

3 identification as People's

4 Exhibit 6 as of this date.)

5 Q (By Ms. Gentile) I am handing you

6 People's Exhibit Number 6, and ask you to identify

7 it?

8 A Okay. This is reporting Form R from

9 Unique Marble Products, Incorporated, for calendar

10 year 1993.

11 Q And in section four, facility

12 identification, is that the same address as on

13 People's Exhibit Number 2?

14 A Yes, it is.

15 Q And the mailing address?

16 A It indicates the same as above, meaning

17 the same address.

18 Q Okay. I hand you People's Exhibit Number

19 7, and ask you to identify that.

20 (Whereupon said document was

21 duly marked for purposes of

22 identification as People's

23 Exhibit 7 as of this date.)

24 A This is a reporting Form R for calendar

KEEFE REPORTING COMPANY

Belleville, Illinois

1 year 1994 from Unique Marble Products,

2 Incorporated.

3 Q And when was it signed?

4 A The date signed is 10-03-96, meaning

5 October 3rd, 1996.

6 Q And is there any difference between the

7 address and the name from that Form R to People's

8 Exhibit Number 2?

9 A No, there is not.

10 Q Is there a mailing address indicated that

11 is different from that?

12 A No, there is not.

13 MS. GENTILE: Okay. Just one moment,

14 please.

15 I have no further questions of this

16 witness. I would move that People's Exhibits 1

17 through 7 be admitted into evidence.

18 HEARING OFFICER WALLACE: Would you hand

19 the exhibits to me, please?

20 MS. GENTILE: Oh, yes. I am sorry.

21 HEARING OFFICER WALLACE: Any objection,

22 Mr. Austin?

23 MR. AUSTIN: No objection to Exhibit 1.

24 No objection to Exhibit 7. However, we do object

KEEFE REPORTING COMPANY

Belleville, Illinois

1 to the remaining exhibits on the basis of their

2 relevancy.

3 HEARING OFFICER WALLACE: All right.

4 Thank you. Your objections are noted. I am going

5 to admit all seven exhibits, and that would include

6 2, 3, 4, 5 and 6, over your objection.

7 (Whereupon said documents were

8 admitted into evidence as

9 People's Exhibits 1 through 7

10 as of this date.)

11 HEARING OFFICER WALLACE: All right.

12 Cross-examination?

13 MR. AUSTIN: Yes. Thank you.

14 CROSS EXAMINATION

15 BY MR. AUSTIN:

16 Q Mr.

Goodner, you were present in the

17 courtroom, were you not, during Ms. Gentile's

18 opening statement?

19 A Yes, I was.

20 Q Did you hear her reference, by chance, to

21 the Union Carbide incident at Bhopal, India?

22 A Yes, I did.

23 Q Are you familiar with that incident,

24 generally?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A Only from the literature. In general

2 terms, yes.

3 Q That involved a chemical release of -- or

4 a release of toxic chemicals, did it not?

5 A Yes, it did.

6 Q There is no suggestion that anything of

7 that nature was true of Unique Marble, was there?

8 MS. GENTILE: I am going to object.

9 Q (By Mr. Austin) Are you aware of any --

10 MS. GENTILE: I am going to object.

11 Q (By Mr. Austin) Are you aware of any

12 unauthorized release of toxic chemicals with

13 respect to Unique Marble for the period of time in

14 question, Mr.

Goodner?

15 MS. GENTILE: I am going to object to the

16 relevance of that question.

17 MR. AUSTIN: It was made relevant by Ms.

18 Gentile's own remarks.

19 HEARING OFFICER WALLACE: Overruled.

20 THE WITNESS: Would you please restate

21 your question?

22 Q (By Mr. Austin) Are you aware of any

23 unauthorized release of toxic chemicals by the

24 Respondent in this case?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A I am not aware of any unauthorized

2 release.

3 Q And you purport to be the author, do you

4 not, of People's Exhibit 2, Mr.

Goodner?

5 A Yes, I do.

6 Q And that letter was sent by certified

7 mail?

8 A Yes, it was.

9 Q Why was it sent by certified mail?

10 A In the case of compliance inquiry

11 letters, that is the standard procedure to assure

12 receipt and documentation of receipt.

13 Q That's a requirement, is it not?

14 A It is a procedure.

15 Q Is it also not a requirement, or do you

16 know?

17 A

A requirement in what terms?

18 Q Either a statutory or a regulatory

19 requirement. Is it or do you know?

20 A I know it is a procedure requirement.

21 Whether or not it is a specific requirement, I

22 would have to say that I am not sure.

23 Q And that is sent by certified mail

24 because there is some importance or significance

KEEFE REPORTING COMPANY

Belleville, Illinois

1 attached to this particular notice; isn't that

2 correct?

3 A That is correct.

4 Q The penalties for noncompliance are

5 somewhat serious, wouldn't you agree?

6 A They are.

7 Q How do you determine to whom this notice

8 is to be sent?

9 A We review previous submissions, we check

10 for the address, especially on the last submission

11 that we have from the facility. And in this case

12 we had also checked the history of addresses and

13 the name of the person who signed the actual form,

14 and then that's who we directed the letter to.

15 Q You would agree, would you not, that it

16 is important that this notice get to the right

17 person at a company?

18 A Yes, I would.

19 Q The addressee of the notice in question,

20 People's Exhibit 2, purports to be the president of

21 the company, does it not?

22 MS. GENTILE: Objection.

23 THE WITNESS: I wouldn't say so.

24 HEARING OFFICER WALLACE: The objection

KEEFE REPORTING COMPANY

Belleville, Illinois

1 is overruled.

2 Q (By Mr. Austin) Okay. Who is the

3 addressee?

4 A The addressee is Mr. Guy R.

Gilmore, Jr.

5 Q And does his title appear on the address

6 box?

7 A Yes, it is.

8 Q What is that title?

9 A President.

10 Q Does Mr.

Gilmore's receipt by signature

11 appear on the return receipt?

12 A No, it doesn't appear to.

13 Q Now, there is a block for that purpose,

14 is there not, block five?

15 A Yes, there is.

16 Q Does anything appear in block five?

17 A Actually, the signature is above the line

18 of block five.

19 Q But does anything appear in block five?

20 A No, nothing appears in block five.

21 Q And there is also a block six, isn't

22 there?

23 A Yes, there is.

24 Q What is the purpose of block six?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A Block six indicates signature and,

2 parens, agent.

3 Q Okay. Is there a signature of an agent

4 in block six?

5 A No, there isn't.

6 Q Is there any signature on that form --

7 A Yes, there is.

8 Q -- acknowledging release -- or receipt,

9 rather?

10 A There is a signature on the form.

11 Q Can you make out the signature?

12 A It appears the first name is Susan. It

13 looks like the middle initial is E, and it appears

14 the last name is Wilson.

15 Q Now, what, if anything, does Susan E.

16 Wilson have to do with the Respondent, Unique

17 Marble?

18 A I don't know.

19 Q You can't say, then, can you, that this

20 was received by somebody at the company having

21 authority?

22 A I can't say.

23 Q Now, the form also has a block that

24 restricts delivery to the addressee, does it not?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 I direct your attention to the upper right-hand

2 corner of the form.

3 A Yes, it does.

4 Q But in this particular case, the delivery

5 of your certified letter to Mr.

Gilmore at Unique

6 Marble was not restricted to delivery to him, was

7 it?

8 A Neither box is checked in that area.

9 MR. AUSTIN: All right. No further

10 questions.

11 HEARING OFFICER WALLACE: Thank you.

12 Redirect?

13 MS. GENTILE: No.

14 HEARING OFFICER WALLACE: No redirect?

15 MS. GENTILE: No redirect.

16 HEARING OFFICER WALLACE: You may step

17 down, Mr.

Goodner.

18 (The witness left the stand.)

19 HEARING OFFICER WALLACE: The next

20 witness.

21 MS. GENTILE: Yes.

22 (Whereupon the witness was

23 sworn by the Hearing Officer.)

24 HEARING OFFICER WALLACE: You may

KEEFE REPORTING COMPANY

Belleville, Illinois

1 proceed.

2 L E S L I E D A V I D M O R

R O W,

3 having been first duly sworn by the Hearing

4 Officer,

saith as follows:

5 DIRECT EXAMINATION

6 BY MS. GENTILE:

7 Q Please state your name and spell your

8 last name for the record.

9 A My name is Leslie, L-E-S-L-I-E, David

10 Morrow, M-O-R-R-O-W.

11 Q And, Mr. Morrow --

12 MR. AUSTIN: It would appear -- excuse

13 me.

14 MS. GENTILE: Sure.

15 MR. AUSTIN: It would appear that Mr.

16 Morrow has notes in his possession at the

17 witness --

18 THE WITNESS: Yes, that is correct. I

19 do.

20 MR. AUSTIN: -- stand. Could he identify

21 those?

22 HEARING OFFICER WALLACE: Yes. Identify

23 your notes, please.

24 THE WITNESS: I just took a few notes on

KEEFE REPORTING COMPANY

Belleville, Illinois

1 what I understand my testimony will cover today,

2 and I am using them as kind of crib sheets or

3 reminders for high points.

4 MR. AUSTIN: I don't believe it is proper

5 that this witness refer to his notes unless done

6 under the

auspice of refreshing his recollection or

7 in that manner.

8 MS. GENTILE: That's fine.

9 HEARING OFFICER WALLACE: All right.

10 Would you put your notes away, please.

11 (The witness complied.)

12 THE WITNESS: They are on the floor.

13 Q (By Ms. Gentile) Would you describe your

14 educational background for us?

15 A I have a Bachelor's of Arts Degree in

16 Premedicine from the University -- from

Millikin

17 University in Decatur, Illinois. I have a Master's

18 in progress at the University of Illinois in

19 Springfield.

20 Q Okay. By whom are you employed?

21 A The State of Illinois Environmental

22 Protection Agency.

23 Q When did you begin work there?

24 A In February of 1988.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q And you have been continuously employed

2 by the Illinois EPA since that date?

3 A That's correct.

4 Q Okay. What is your present position?

5 A I am an Environmental Protection

6 Specialist, Level III, and my working title is an

7 environmental toxicologist.

8 Q Okay. How long have you been in that

9 position?

10 A Approximately three years.

11 Q Okay. In your present position and in

12 that capacity have you ever testified on the public

13 health impacts of various chemicals?

14 A Yes, I have.

15 Q When was that? Or how many times, I

16 should say?

17 A Five.

18 Q And before the Board and before the

19 Court?

20 A Yes, yes.

21 Q Both?

22 A Before the Board.

23 Q Okay.

24 A Never in a court setting, no.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q Okay. In your position with the Illinois

2 EPA, have you had occasion to review the physical

3 or chemical properties of either or both

4 dichloromethane and styrene?

5 A I have, both of them.

6 Q And can you explain, in as simple terms

7 as possible, the basic properties of these two

8 chemicals?

9 A I can.

10 MR. AUSTIN: I am going to interpose an

11 objection.

12 I certainly have no reason to question

13 Mr. Morrow's expertise in the area that this

14 inquiry seems to be going, but it really doesn't

15 have anything to do with why we are here. By

16 definition, the U.S. EPA, and correspondingly the

17 Illinois EPA, have determined that

dichloromethane

18 and styrene are toxic chemicals, and that there are

19 certain reporting requirements.

20 The degree of toxicity and that sort of

21 thing really isn't relevant to why we are here

22 today.

23 MS. GENTILE: I would think it is

24 relevant.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 The purpose of the Form R program was to

2 inform the public as to what chemicals are used in

3 sites in their areas, and while this case

4 technically deals with a reporting requirement,

5 underneath that reporting requirement is the fact

6 that the public has been denied the right to know

7 about certain chemicals, and that is a very

8 important part of this enforcement action.

9 HEARING OFFICER WALLACE: I am sorry.

10 The enforcement action is limited to the reporting.

11 MS. GENTILE: It is. You are right. No,

12 it is.

13 HEARING OFFICER WALLACE: And I --

14 MS. GENTILE: But the purpose of the Form

15 R has been defeated, and I think it is important

16 for this case, I believe, that the chemicals be

17 looked upon for what they are.

18 HEARING OFFICER WALLACE: All right. I

19 am going to sustain the objection. I don't see the

20 relevance of this line of testimony.

21 MS. GENTILE: Okay. Then I -- that would

22 be it.

23 HEARING OFFICER WALLACE: It is the

24 practice of the Board, since this is a one-shot

KEEFE REPORTING COMPANY

Belleville, Illinois

1 hearing, if you wish to make an offer of proof, you

2 may do so, to have it in the record.

3 MS. GENTILE: Well, okay, I would. If,

4 you know, Mr. Morrow were to testify, he would

5 testify that --

6 HEARING OFFICER WALLACE: Well, you can

7 ask him.

8 MS. GENTILE: Okay.

9 HEARING OFFICER WALLACE: If you

10 designate it as an offer of proof, you can go ahead

11 and ask him the --

12 MS. GENTILE: Okay.

13 HEARING OFFICER WALLACE: -- questions

14 that you were going to ask him. Then when you

15 conclude your offer of proof, please tell me that

16 that is the end of it.

17 MS. GENTILE: Okay, fine. We will

18 present an offer of proof.

19 Q (By Ms. Gentile) Okay. Continuing, then,

20 can you explain, in basic terms, as basic as

21 possible, what are the properties of these two

22 chemicals?

23 A I can.

24 Q Okay.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A

Dichloromethane is a -- it is a man-made

2 chemical. It is a liquid at room temperature and

3 pressure.

4 Q Okay.

5 A It has a sweet odor. It is used in many

6 industries. On the consumer level, it is contained

7 in paint strippers and paint removers. It is

8 moderately toxic in the acute phase, which means

9 high doses. About one to two percent will kill

10 rodents. The affects before death are anesthesia,

11 similar to surgical anesthesia.

12 Q Okay. How does it get into the

13 atmosphere?

14 A It is a volatile chemical. It readily

15 evaporates. During chemical processes it can be --

16 its evaporation can be accelerated with heat and

17 pressure.

18 Q Is it carcinogenic?

19 A The U.S. Environmental Protection Agency

20 considers it a probable human carcinogen, which

21 means that it does definitely cause cancer in rats

22 and mice.

23 Q Okay. That was

dichloromethane?

24 A Correct.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q Now, styrene, if you can describe what --

2 A Styrene is a liquid at room temperature.

3 Q Synthetic?

4 A Yes, it is a synthetic, a man-made

5 chemical.

6 Q Okay.

7 A It has a definite odor. Its acute

8 toxicity is higher than that of

dichloromethane.

9 It causes irritation to eyes and throats, and

10 that's generally the cause of death, in the acute

11 phase where the bronchus close up from the

12 irritation. It is not considered a carcinogen by

13 the U.S. EPA.

14 Q Okay.

15 A It is of interest to the State of

16 Illinois, because it does -- there are some

17 Scandinavian studies that indicate that it can

18 disrupt the menstrual cycle of workers, and has

19 caused some defects on the sperm of male workers.

20 And it is considered now a potential endocrine

21 disrupter for the State of Illinois.

22 Q And how does styrene get into the

23 atmosphere?

24 A Once again, it is a volatile chemical and

KEEFE REPORTING COMPANY

Belleville, Illinois

1 volatility, once again, is accelerated through

2 chemical processes.

3 MS. GENTILE: I have no further

4 questions.

5 HEARING OFFICER WALLACE: Okay. Does

6 that conclude your offer of proof?

7 MS. GENTILE: Yes.

8 HEARING OFFICER WALLACE: Mr. Austin, do

9 you wish to cross-examine Mr. Morrow on that offer

10 of proof?

11 MR. AUSTIN: No, Your Honor.

12 HEARING OFFICER WALLACE: All right. You

13 may step down, Mr. Morrow.

14 THE WITNESS: All right. Thank you.

15 (The witness left the stand.)

16 MS. GENTILE: I have no further

17 witnesses.

18 HEARING OFFICER WALLACE: No further

19 witnesses?

20 MS. GENTILE: Correct.

21 HEARING OFFICER WALLACE: All right. Mr.

22 Austin, do you have any witnesses you wish to

23 present?

24 MR. AUSTIN: Yes, I do. We first call

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Bob

Gilmore.

2 (Whereupon the witness was

3 sworn by the Hearing Officer.)

4 HEARING OFFICER WALLACE: You may

5 proceed.

6 G U Y R. G I L M O R E, JR.,

7 having been first duly sworn by the Hearing

8 Officer,

saith as follows:

9 DIRECT EXAMINATION

10 BY MR. AUSTIN:

11 Q Would you state your name, please.

12 A Guy R.

Gilmore, Jr.

13 Q Are you familiar with the Respondent,

14 Unique Marble, Products, Inc.?

15 A Yes, I am.

16 Q And how does that happen?

17 A I am the president.

18 Q And you are presently?

19 A Yes.

20 Q How long have you served in that

21 capacity?

22 A Since late 1988.

23 Q By president you are talking about the

24 corporate office president?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A Yes.

2 Q What is the nature of the business of

3 Unique Marble?

4 A The manufacture of cultured marble vanity

5 tops.

6 Q For what use?

7 A For home use.

8 Q Where would it be found?

9 A In the bathrooms for sinks.

10 Q All right.

11 A Sinks in bathrooms.

12 Q Is that the business that Unique Marble

13 is presently engaged in?

14 A No.

15 Q What business is Unique Marble presently

16 engaged in?

17 A None.

18 Q When did it cease to be engaged in the

19 cultured marble business?

20 MS. GENTILE: I would object. There is

21 no relevance.

22 HEARING OFFICER WALLACE: Yes, I believe

23 there is. It goes to the factors that the Board

24 must weigh in assessing any penalty.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 So you may continue.

2 THE WITNESS: In October of 1995.

3 Q (By Mr. Austin) How does it happen that

4 Unique Marble is no longer in business?

5 A I made the decision to close the

6 business.

7 Q And that was a financial decision, I take

8 it?

9 A Yes.

10 Q Now, directing your attention to

11 September of 1995, who was the president of Unique

12 Marble at that time?

13 A I was.

14 Q And who were the other corporate

15 officers?

16 A My wife Becky was the

17 secretary-treasurer.

18 Q Were there any other corporate officers?

19 A No.

20 Q Were there any other people in the

21 capacity during the month of September of 1995 of

22 having general oversight responsibility in the

23 company?

24 A No.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q Okay. Are you familiar with a Susan E.

2 Wilson?

3 A Yes.

4 Q How does it happen that you are familiar

5 with that name?

6 A She was an employee of Unique Marble

7 Products.

8 Q Was she an employee of Unique Marble in

9 September of 1995?

10 A Yes.

11 Q In what capacity?

12 A She was customer service representative

13 in the office.

14 Q And what did her duties consist of?

15 A Answering the phone, taking orders,

16 answering customers' questions about deliveries or

17 product questions.

18 Q Would you briefly describe the office

19 layout of Unique Marble in September of 1995?

20 A When you came -- when you walked in the

21 front door there was an entryway that you walked

22 through into the front center office. There was an

23 office off to the right of that.

24 Q Was there a receptionist that would greet

KEEFE REPORTING COMPANY

Belleville, Illinois

1 people?

2 A Yes.

3 Q Where was your mail delivered; to the

4 office or to a post office box?

5 A To the office.

6 Q And that office was at 2600 South Rainy

7 in

Effingham?

8 A Yes.

9 Q That's not in dispute, is it?

10 A No.

11 Q What, if any, receptionist duties did

12 Susan Wilson have?

13 A None.

14 Q Where was her work area relative to the

15 reception area?

16 A Actually, two offices removed from the

17 reception area. It would be down a hall to the --

18 what we consider the back office, the farthest

19 removed office from the reception area.

20 Q When mail was delivered to the Unique

21 Marble office, where was the mail deposited or left

22 by the postman?

23 A The mailbox out alongside the parking lot

24 of the facility.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q That's to say it was not brought inside

2 by the postman or the mailman?

3 A That is correct.

4 Q Who had the responsibility of picking up

5 the mail on a daily basis?

6 A On a daily basis it was the office

7 manager's duties.

8 Q And what, if any, office management

9 duties did Susan Wilson have?

10 A None.

11 Q How was certified mail handled at Unique

12 Marble? Was that brought inside?

13 A Yes.

14 Q By the mailman?

15 A Yes.

16 Q And who received that, typically?

17 A Typically it would be me or at times it

18 could be the office manager.

19 Q Who was that at that time? By that time,

20 I am talking about September of 1995.

21 A At that time it would have been my wife

22 Becky.

23 Q Did anybody else have authority to accept

24 and receipt for certified mail?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A No.

2 Q Did anybody else do so?

3 A No.

4 Q To your knowledge?

5 A Not that I am aware of.

6 MR. AUSTIN: May I see the exhibits

7 again? Thank you.

8 Q (By Mr. Austin) Now, Mr.

Gilmore, I am

9 going to direct your attention to what has already

10 been received in evidence as People's Exhibit 2,

11 and ask you to look at that.

12 I will point out that it consists of a

13 copy of a two-page letter and a copy of a return

14 receipt which is attached as the third sheet of

15 People's Exhibit 2. Do you agree with that?

16 A Yes.

17 Q First, directing your attention to the

18 letter portion, the first two sheets. Have you

19 seen that before today?

20 A Yes.

21 Q Do you recall when you first saw it?

22 A I can't remember the exact date. It was

23 in 1996 when your office made me aware of it, I

24 believe.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q Do you recall what the circumstances were

2 in 1996?

3 A As far as --

4 Q How you -- how that happened to come to

5 your attention, that letter?

6 A I believe I was sent a copy by your

7 office, if I am not mistaken.

8 Q Now, directing your attention to the

9 third sheet of People's Exhibit 2.

10 A

Uh-huh, yes.

11 Q Your name appears as the addressee, does

12 it not?

13 A Yes.

14 Q That is your title, as well, the title of

15 president?

16 A Correct.

17 Q That is the name of your company; that is

18 correct, isn't it?

19 A Yes.

20 Q And the address is also correct, isn't

21 it?

22 A Yes.

23 Q Do you recognize the name or signature

24 that appears manually inscribed?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A Yes, I do.

2 Q And that name is what?

3 A Susan E. Wilson.

4 Q When did you first see that?

5 A When your office made it available to me.

6 Q And when was that, relative to September

7 5, 1995?

8 A I believe it was sometime in the spring

9 of 1996.

10 Q Do you have any recollection of Ms.

11 Wilson or anyone else presenting this letter dated

12 September 1, 1995, to you prior to 1996?

13 A No, not at all.

14 Q What was the normal method of handling a

15 communication of this type of an official nature

16 received by certified mail in your firm?

17 A Something of that nature --

18 Q And let's limit that to the fall of

19 1995.

20 A I would have expected it to have been

21 brought immediately to my attention. That would

22 have been the normal procedure.

23 Q You had filed Forms R in the past, had

24 you not, Mr.

Gilmore?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A Yes.

2 Q And you were aware, were you not, of the

3 penalties that were associated with non filing?

4 A Yes.

5 Q You were aware of the -- and were at that

6 time aware of the importance of filing the Form R,

7 were you not?

8 A Yes.

9 Q Now, again, directing your attention to

10 the fall of 1995, were you continuously involved in

11 the day-to-day business operations?

12 A At that time I was having some health

13 problems that I wasn't necessarily there on a daily

14 basis full-time.

15 Q Would you just very briefly and generally

16 tell us what you mean by health problems or what

17 effect that had on your ability to function in the

18 business?

19 A Well, the effect it had was basically I

20 did not have the energy and the stamina to, you

21 know, be there on a daily basis and, you know, on a

22 full-time basis.

23 Q How, then, did you pass your day?

24 A There were some days when I just could

KEEFE REPORTING COMPANY

Belleville, Illinois

1 not make it in. Typically, I would try to go in

2 and --

3 MS. GENTILE: I would object to the

4 relevance of this, where this is going. I don't

5 see the relevance.

6 MR. AUSTIN: This is the last question I

7 intended to ask along this line.

8 HEARING OFFICER WALLACE: All right. Go

9 ahead.

10 MR. AUSTIN: The witness was already in

11 the process of answering.

12 THE WITNESS: I would go home at noon for

13 lunch and at that time I would not have the energy

14 to return.

15 Q (By Mr. Austin) Was Mrs.

Gilmore

16 continuously involved in the day-to-day operations

17 of the business during September of 1995?

18 A Yes.

19 MS. AUSTIN: Okay. That's all I have.

20 HEARING OFFICER WALLACE: All right.

21 Cross-examination?

22 MS. GENTILE: I have a few questions.

23 CROSS EXAMINATION

24 BY MS. GENTILE:

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q Did you testify that in October of 1995

2 you ended your business; is that correct?

3 A Yes.

4 MR. AUSTIN: I believe the testimony was

5 October of --

6 MS. GENTILE: Of 1996?

7 THE WITNESS: 1995.

8 Q (By Ms. Gentile) That's right, October of

9 1995?

10 A Yes.

11 Q And so for the year -- for the calendar

12 year 1994 you were in business?

13 A Yes.

14 Q You talked about how mail was brought,

15 how mail was usually left outside, but for

16 certified mail it was brought inside; is that

17 correct, and that you or your --

18 A Well, that was the postal policy, you

19 know, that --

20 Q Okay. Right, because they have that --

21 A -- they required signature.

22 Q That is right, exactly.

23 A They obviously --

24 Q Yes, exactly.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A -- required signature.

2 HEARING OFFICER WALLACE: Wait. Wait.

3 Don't talk over each other, please.

4 THE WITNESS: Okay.

5 Q (By Ms. Gentile) That's right, certified

6 mail was brought inside?

7 A That was the post office policy, they

8 required a signature, yes.

9 Q I believe you testified that only certain

10 people were authorized to accept it, you and your

11 wife?

12 A Right.

13 Q Okay.

14 MR. AUSTIN: I believe the testimony was

15 at that particular time those were the two people

16 that were.

17 THE WITNESS: Right.

18 MS. GENTILE: Right, that's right.

19 Q (By Ms. Gentile) But if you weren't

20 around and the office managers were not around, who

21 would accept the certified mail?

22 A I would -- I would expect nobody to at

23 that time.

24 Q You would expect that no one would?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A Right.

2 Q But if somebody was, in fact, on the

3 premises and the post office were to walk in with a

4 certified mail, it is very possible that it would

5 have been signed?

6 MR. AUSTIN: Objection. Calls for

7 speculation.

8 HEARING OFFICER WALLACE: Sustained.

9 Q (By Ms. Gentile) Did you ever notify the

10 post office that you only wished -- you only wanted

11 certain people to be authorized to accept certified

12 mail?

13 A No.

14 MS. GENTILE: All right. I have no

15 further questions.

16 HEARING OFFICER WALLACE: Redirect?

17 MR. AUSTIN: None. Thank you.

18 HEARING OFFICER WALLACE: Thank you, Mr.

19 Gilmore. You may step down.

20 (The witness left the stand.)

21 HEARING OFFICER WALLACE: Mr. Austin, do

22 you have any further witnesses?

23 MR. AUSTIN: Yes, Your Honor. I would

24 like to call Becky Monica

Gilmore.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 (Whereupon the witness was

2 sworn by the Hearing Officer.)

3 HEARING OFFICER WALLACE: You may

4 proceed.

5 B E C K Y M O N I C A G I L M O R E,

6 having been first duly sworn by the Hearing

7 Officer,

saith as follows:

8 DIRECT EXAMINATION

9 BY MR. AUSTIN:

10 Q Would you state your name, please.

11 A Becky Monica

Gilmore, G-I-L-M-O-R-E.

12 Q And what is your association, if any,

13 with the Respondent, Unique Marble Products, Inc.?

14 A It is my husband's and my company.

15 Basically it is my husband's and I am just

16 secretary and treasurer.

17 Q How long have you served in that

18 capacity?

19 A Since 1988.

20 Q Were you present in the courtroom during

21 your husband's testimony in this cause?

22 A Yes.

23 Q If I were to put the same questions to

24 you as I put to him, to the extent of your

KEEFE REPORTING COMPANY

Belleville, Illinois

1 knowledge of those matters, would your answers be

2 the same or substantially similar?

3 A Yes.

4 Q Mrs.

Gilmore, I am going to show you what

5 has been previously marked as People's Exhibit

6 Number 2. Do you recall having seen that document

7 before? First, I am talking about the letter,

8 consisting of the first two pages.

9 A The first time I saw this is when my

10 husband brought it home from your office that you

11 had received it by certified mail.

12 Q Do you recall when that was?

13 A The spring of 1996. I am not for sure

14 what month it was or what date it was at all.

15 Q And the return receipt, which is the

16 third sheet?

17 A

Uh-huh.

18 Q Have you seen that before?

19 A Just with the letter that you had gave my

20 husband at that time.

21 Q Now, in September of 1995, what

22 association did you have with the Respondent,

23 Unique Marble Products, Inc., on a day-to-day

24 basis?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A I was there every day. I worked as

2 basically the office manager. I was doing some

3 production, the production schedules and things

4 like that, but I was there basically overseeing it,

5 because my husband wasn't -- he was there most of

6 the time, but not all the time. So I made it a

7 point that I was there.

8 Q Did you have a desk that you normally

9 worked at?

10 A I had a couple of desks. I had the -- a

11 Jack of all trades. I had -- the reception area

12 was basically mine, because I wanted to know -- we

13 didn't have that many people come in there,

14 whatsoever, but I was there to greet just in case

15 somebody did come in, a salesman or whatever type

16 thing. Then I did have a desk off to the side just

17 as you come into the reception area to the

18 right-hand side, which is our production office. I

19 was there partly, and moved paperwork back and

20 forth.

21 Q Well, did Unique Marble at that time,

22 September of 1995, receive from time to time

23 certified mail and express mail?

24 A Not very often, whatsoever. Certified

KEEFE REPORTING COMPANY

Belleville, Illinois

1 mail, I can't even remember the last time we did

2 get a certified mail, whatsoever. If they did,

3 what they did if we weren't there in the past

4 previous times, they just left the little yellow

5 receipt and --

6 Q Who is "they"?

7 A The postman.

8 Q Okay.

9 A Which he came about 10:30 in the morning

10 to noon type thing. He would just leave that there

11 and if somebody wasn't there, you know, one of us,

12 he would just leave it there, and we would have to

13 go up to the post office and pick it up there and

14 sign for the receipt. Federal Express and things

15 like that, we didn't have very often, but usually I

16 was there to sign if that's what it was.

17 Q How would a notice of this type, received

18 by certified mail, have normally been handled in

19 Unique Marble?

20 A With it being signed and with it being

21 Guy R.

Gilmore, I mean, we -- well, I didn't feel

22 comfortable signing my name to something that was

23 supposed to be his. So I would have him go up to

24 the post office if he wasn't there. He had to go

KEEFE REPORTING COMPANY

Belleville, Illinois

1 get it, you know, because that is what the

2 signature said.

3 The postman never had no problems with

4 that at all. I mean, he never said anything

5 before. But it would always be a certified mail.

6 If it was certified to Unique Marble, I would sign

7 it or my husband would sign it at that time.

8 Q Are you familiar with Susan Wilson?

9 A Yes.

10 Q Susan E. Wilson?

11 A Yes.

12 Q Was it within the scope of Ms. Wilson's

13 duties for Unique Marble, on September of 1995, to

14 receipt for certified mail or otherwise receive

15 mail?

16 A No.

17 Q Did Ms. Wilson, to the best of your

18 recollection, ever bring this notice, dated

19 September 1, 1995, to the attention of either you

20 or your husband?

21 A No.

22 MR. AUSTIN: No further questions.

23 HEARING OFFICER WALLACE: All right.

24 Cross-examination?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 MS. GENTILE: I just have a few

2 questions.

3 CROSS EXAMINATION

4 BY MS. GENTILE:

5 Q If you -- well, when you weren't there,

6 it was possible that other employees could be

7 there, correct, at the office?

8 A Could be what? I am sorry.

9 Q At the office, if you weren't at the

10 office?

11 A Yes,

uh-huh.

12 Q Then it is possible -- I mean, when you

13 talked about the postal service leaving a yellow

14 receipt, that is if no one was at the office?

15 A No, no.

16 Q When was that?

17 A It was left if we -- if it was not -- you

18 know, if it was Unique Marble on there, with Guy R.

19 Gilmore on there, or a person type thing, they

20 would leave it, because nobody signed it. I am

21 sorry.

22 Q That's okay. No, I didn't mean that.

23 Obviously, though, an employee did sign it?

24 A Yes.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q Okay. So, obviously, that procedure that

2 you say was in effect was not really in effect, was

3 it?

4 A She did not follow it.

5 MR. AUSTIN: Objection. Argumentative.

6 HEARING OFFICER WALLACE: Overruled.

7 You may answer the question.

8 THE WITNESS: She did not follow it, you

9 know.

10 Q (By Ms. Gentile) But she was an employee

11 of --

12 A She did not follow our policy, I should

13 say.

14 Q But she was an employee of Unique Marble

15 in customer service; is that correct?

16 A Yes.

17 Q She answered the telephone, and I believe

18 it was testified that she also received some mail?

19 A No, she did not.

20 Q Okay.

21 A She answered the telephone for customers

22 calling in asking questions or placing orders.

23 MS. GENTILE: Okay. I have no further

24 comments. No further questions.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 HEARING OFFICER WALLACE: Redirect?

2 REDIRECT EXAMINATION

3 BY MR. AUSTIN:

4 Q How long after September 5, 1995 did Ms.

5 Wilson's employment by Unique Marble continue?

6 A She was there until the middle of

7 October, about the 20th of October.

8 Q And you did experience some other

9 difficulties with her following internal

10 procedures, did you not?

11 A Yes, we did.

12 MR. AUSTIN: No further questions.

13 HEARING OFFICER WALLACE: Re-cross?

14 MS. GENTILE: I have no questions.

15 HEARING OFFICER WALLACE: Thank you, Ms.

16 Gilmore. You may step down.

17 (The witness left the stand.)

18 HEARING OFFICER WALLACE: Do you have

19 anything further, Mr. Austin?

20 MR. AUSTIN: We have no further

21 witnesses.

22 HEARING OFFICER WALLACE: Any rebuttal,

23 Ms. Gentile?

24 MS. GENTILE: No.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 HEARING OFFICER WALLACE: Okay. Let's go

2 off the record.

3 (Discussion off the record.)

4 HEARING OFFICER WALLACE: Back on the

5 record.

6 We had an off-the-record discussion

7 discussing briefing schedules.

8 The transcript should be due roughly

9 around May the 9th, and maybe earlier. So our

10 briefing schedule will be -- the People's initial

11 brief is May the 23rd, and the Respondent's brief

12 is due June the 6th.

13 Just for the record, the lady in the

14 back, do you wish to make any kind of statement

15 regarding -- well, are you just a member of the

16 public?

17 MS. GENTILE: She is with the Illinois

18 EPA. I am sorry.

19 HEARING OFFICER WALLACE: Oh, okay.

20 Thank you.

21 Ms. Gentile, do you wish to make a

22 closing statement?

23 MS. GENTILE: Yes. Thank you.

24 The evidence shows that Unique Marble was

KEEFE REPORTING COMPANY

Belleville, Illinois

1 required to file Form

Rs for dichloromethane and

2 styrene for calendar year 1994. That the Illinois

3 EPA provided Unique Marble with adequate notice in

4 accordance with the Environmental Protection Act,

5 and that Unique Marble did not respond to that

6 notice, and did not file a Form R for either toxic

7 chemical on or before December 31st, 1995.

8 The Respondent's argument is that since

9 the person who accepted delivery of the Agency's

10 September 1, 1995 certified letter was not so

11 authorized by that company to sign, that this isn't

12 adequate notice.

13 The EPA sent to the Respondent by

14 certified mail a letter dated September 1, 1995,

15 notifying the Respondent that they were to file two

16 Form

Rs. One Susan Wilson, employed by Unique

17 Marble, on September 5th, accepted delivery of that

18 letter, signing the return receipt card on

19 September 5th.

20 There is no statutory or regulatory

21 requirement that in the case of a corporation it be

22 directed to a certain authorized recipient. So,

23 therefore, the Respondent was served with notice by

24 certified mail, as required by the statute.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 First, Unique Marble was required to file

2 a Form R for both

dichloromethane and styrene by

3 July 1st, 1995. There is no requirement that the

4 federal or state authorities must notify the

5 company of this requirement before it is

6 triggered. However, the notice is a prerequisite

7 to the Agency's enforcement authority, and here the

8 notice was adequate in accordance with the

9 Environmental Protection Act.

10 We have here a case where a company has

11 filed Forms R for four years; 1990, 1991, 1992 and

12 1993. Suddenly, the company does not file the

13 required reports for Form R for calendar year 1994,

14 and as its defense claims the Agency delivered

15 notice to an employee who the company did not

16 consider an authorized recipient of that notice.

17 Yet, for years 1990 through 1993 the

18 company provided the IEPA with certain mailing

19 information if we had any questions about Form R.

20 At any time the company could have advised the

21 Illinois EPA where it wished its mail sent and to

22 whose attention, but it did not.

23 As late as October of 1996, after this

24 action was brought, the company submitted its Form

KEEFE REPORTING COMPANY

Belleville, Illinois

1 R for

dichloromethane for calendar year 1994, and

2 again provided the Agency with the same mailing

3 information that it had in years previous.

4 The September 1, 1995 letter was directed

5 to a person and addressed consistent with

6 information the company provided to the Illinois

7 EPA for that purpose. Now the company complains

8 that the Illinois EPA was incorrect in relying on

9 information that the company provided. The company

10 complaint is self-imposed.

11 That's all I have to say. Thank you.

12 HEARING OFFICER WALLACE: Thank you, Ms.

13 Gentile.

14 Mr. Austin?

15 MR. AUSTIN: We will waive closing

16 argument being that we will be given an opportunity

17 to argue in a post-trial brief.

18 HEARING OFFICER WALLACE: All right.

19 Thank you, sir.

20 Okay. That's all from the People, Ms.

21 Gentile?

22 MS. GENTILE: Yes, that concludes our

23 case.

24 HEARING OFFICER WALLACE: And that is all

KEEFE REPORTING COMPANY

Belleville, Illinois

1 from the Respondent?

2 MR. AUSTIN: That is correct.

3 HEARING OFFICER WALLACE: Pursuant to the

4 Board's rules of practice, I will note for the

5 record that there are no members of the public

6 present, and that I find no credibility issues with

7 the witnesses presented.

8 There being nothing further, this hearing

9 is adjourned. Thank you.

10 MS. GENTILE: Thank you.

11 MR. AUSTIN: Thank you.

12 (People's Exhibits 1 through 7

13 were retained by Hearing

14 Officer Wallace.)

KEEFE REPORTING COMPANY

Belleville, Illinois

1 STATE OF ILLINOIS )

) SS

2 COUNTY OF MONTGOMERY)

3 C E R T I F I C A T E

4 I, DARLENE M. NIEMEYER, a Notary Public

5 in and for the County of Montgomery, State of

6 Illinois, DO HEREBY CERTIFY that the foregoing 67

7 pages comprise a true, complete and correct

8 transcript of the proceedings held on the 29th of

9 April

A.D., 1997, at Effingham County Office

10 Building, First Floor Conference Room, 101 North

11 Fourth Street,

Effingham, Illinois, in the case of

12 The People of the State of Illinois v. Unique

13 Marble Products, Inc., in proceedings held before

14 the Honorable Michael L. Wallace, Hearing Officer,

15 and recorded in machine shorthand by me.

16 IN WITNESS WHEREOF I have hereunto set my

17 hand and affixed my

Notarial Seal this 6th day of

18 May

A.D., 1997.

Notary Public and

21 Certified Shorthand Reporter and

Registered Professional Reporter

CSR License No. 084-003677

23 My Commission Expires: 03-02-99

KEEFE REPORTING COMPANY

Belleville, Illinois