1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    2
    3
    4 ESG WATTS, INC.
    5 (SANGAMON VALLEY LANDFILL),
    6 Petitioner,
    7 vs. No. PCB 98-002
    8 SANGAMON COUNTY BOARD,
    9 Respondent.
    10
    11
    12
    13 Proceedings held on December 7, 1998 at 9:40 a.m.,
    14 at 600 South Second Street, Third Floor Conference
    15 Room, Springfield, Illinois, before the Honorable
    16 Kathleen Crowley, Hearing Officer.
    17
    18
    19
    20
    21 Reported by: Darlene M. Niemeyer, CSR, RPR
    CSR License No.: 084-003677
    22
    23
    24 KEEFE REPORTING COMPANY
    11 North 44th Street
    25 Belleville, IL 62226
    (618) 277-0190 1
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 A P P E A R A N C E S
    2
    3 SANGAMON COUNTY STATE'S ATTORNEY OFFICE
    BY: Robert L. Smith
    4 Dwayne Gab
    Assistant State's Attorneys
    5 200 South Ninth Street, Room 402
    Springfield, Illinois 62701
    6 On behalf of Respondent, the Sangamon
    County Board.
    7
    8 SORLING, NORTHRUP, HANNA, CULLEN & COCHRAN, LTD.
    BY: Charles J. Northrup, Esq.
    9 Suite 800, Illinois Building
    607 East Adams
    10 Springfield, Illinois 62705
    On behalf of Petitioner, ESG Watts, Inc.
    11
    12 WATTS TRUCKING SERVICE, INC.
    BY: Larry A. Woodward, Esq.
    13 Corporate Counsel
    525 - 17th Street
    14 Rock Island, Illinois 61201
    On behalf of Petitioner, ESG Watts, Inc.
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    2
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 I N D E X
    2
    3 WITNESS PAGE NUMBER
    4
    5 GEORGE JAMISON
    Direct Examination by Mr. Northrup............... 10
    6
    JOHN JENKINS
    7 Direct Examination by Mr. Northrup............... 21
    Cross Examination by Mr. Woodward................ 37
    8 Offer of Proof by Mr. Woodward................... 47
    Cross Examination by Mr. Smith................... 48
    9 Redirect Examination by Mr. Northrup............. 51
    10 SCOTT YANKEY
    Direct Examination by Mr. Northrup............... 54
    11
    CHARLES BURGERT
    12 Direct Examination by Mr. Northrup............... 61
    Cross Examination by Mr. Woodward................ 70
    13 Cross Examination by Mr. Smith................... 74
    Redirect Examination by Mr. Northrup............. 75
    14
    DEVIN MOOSE
    15 Direct Examination by Mr. Northrup............... 78
    Offer of Proof by Mr. Northrup................... 81
    16 Cross Exam on Offer of Proof by Mr. Smith........ 83
    Redirect Exam on Offer of Proof by Mr. Northrup.. 84
    17 Cross Examination by Mr. Woodward................ 93
    Cross Examination by Mr. Smith.................. 101
    18 Offer of Proof by Mr. Smith..................... 102
    Cross Exam on Offer of Proof by Mr. Northrup.... 104
    19
    JIM STONE
    20 Direct Examination by Mr. Northrup.............. 108
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    3
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 E X H I B I T S
    2
    3 NUMBER MARKED FOR I.D. ENTERED
    4 Petitioner's Exhibit 1 12 113
    Petitioner's Exhibit 2 15 113
    5 Petitioner's Exhibit 3 36 113
    Petitioner's Exhibit 4 95 --
    6 Petitioner's Exhibit 5 115 115
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    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 P R O C E E D I N G S
    2 (December 7, 1998; 9:40 a.m.)
    3 HEARING OFFICER CROWLEY: Good morning. This is a
    4 hearing being conducted by the Illinois Pollution
    5 Control Board in the matter of Docket Number PCB 98-2,
    6 ESG Watts, Inc., the Sangamon Valley Landfill, versus
    7 the Sangamon County Board.
    8 My name is Kathleen Crowley, and I am the Board's
    9 Hearing Officer in this matter.
    10 We are here today on the July 3rd, 1997 petition
    11 filed by ESG Watts challenging the decision of the
    12 Sangamon County Board to deny local siting approval to
    13 overfill at the ESG Watts Sangamon Valley Landfill.
    14 If the parties would make their appearances,
    15 please.
    16 MR. NORTHRUP: Charles Northrup for petitioner,
    17 ESG Watts.
    18 MR. WOODWARD: Larry Woodward for petitioner, ESG
    19 Watts.
    20 MR. SMITH: My name is Robert Smith. I am on
    21 behalf of the County of Sangamon.
    22 MR. GAB: Dwayne Gab, on behalf of the County of
    23 Sangamon.
    24 HEARING OFFICER CROWLEY: For the record, there
    25 are no members of the public here who are not
    5
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 affiliated with either one of the other party.
    2 MR. NORTHRUP: Correct.
    3 MR. SMITH: Well, there is an attorney
    4 representing some of the witnesses that is here, but
    5 otherwise, no.
    6 HEARING OFFICER CROWLEY: Okay. Are there any
    7 preliminary matters we need to do deal with?
    8 MR. NORTHRUP: Yes, I guess there are a couple
    9 that we could talk about. The first thing, I am going
    10 to use three exhibits today, and they are -- I have
    11 not marked them, but there is a professional services
    12 agreement between the County of Sangamon and Hanson
    13 Engineers.
    14 There is a January 31, 1997 statement of
    15 qualifications to provide engineering services for
    16 Sangamon Valley Landfill which was prepared for
    17 Sangamon County by Hanson Engineers. That constitutes
    18 a cover letter as well as the statement of
    19 qualifications.
    20 And then the third document is a letter dated
    21 March 17, 1997, from John Jenkins to Mr. Aiello of the
    22 County Clerk, the Sangamon County Clerk.
    23 Now, these three documents, we believe, should be
    24 in the record that is before the Board. I had gone to
    25 the county offices last week. That's where these
    6
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 documents -- that's where I found these documents, one
    2 of which, the March 17th letter from Jenkins is
    3 actually file stamped, but none of these documents
    4 appear in the record before the Board in the Chicago
    5 offices.
    6 So I guess at this point I would just ask the
    7 State's Attorney's office if they will stipulate to
    8 the inclusion of these documents in the record.
    9 MR. SMITH: Without actually reviewing the
    10 documents that you have in front you, Mr. Northrup, I
    11 can't agree to stipulate.
    12 MR. NORTHRUP: Well, why don't you take a look at
    13 them. Again, these documents were all found in the
    14 file at the County Clerk's office as a part of the
    15 record. In fact, one of them is actually file
    16 stamped.
    17 HEARING OFFICER CROWLEY: And am I not correct,
    18 Mr. Northrup, that these documents all predate the May
    19 30th, 1997 siting denial by the County?
    20 MR. NORTHRUP: That is correct. That is correct.
    21 It may be that I can lay a foundation for all of these
    22 documents, too, with the Hanson witnesses.
    23 HEARING OFFICER CROWLEY: We will let Mr. Smith
    24 examine them.
    25 MR. SMITH: We would stipulate to the foundation,
    7
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 Mr. Northrup.
    2 MR. NORTHRUP: The other document, that I did not
    3 mention, which I do not have a copy of, that I would
    4 also ask that you stipulate to is the County's RFP,
    5 their initial request for proposal that they sent out
    6 to the various engineering companies, which I don't
    7 have a copy of, by the way.
    8 MR. SMITH: Yes, that's fine. I don't have any
    9 objection.
    10 MR. NORTHRUP: I think that takes care of my
    11 preliminary.
    12 HEARING OFFICER CROWLEY: Mr. Smith, did you have
    13 anything?
    14 MR. SMITH: No, no preliminary motions.
    15 MR. NORTHRUP: Should I go ahead?
    16 HEARING OFFICER CROWLEY: Is everyone here who
    17 needs to be here?
    18 MR. NORTHRUP: We are still waiting for two
    19 witnesses, but we can proceed without them.
    20 HEARING OFFICER CROWLEY: All right. If we would
    21 like to proceed with opening statements then, please.
    22 MR. NORTHRUP: I am going to reserve any opening
    23 statement and argument for my brief.
    24 HEARING OFFICER CROWLEY: Mr. Smith?
    25 MR. SMITH: I will do the same.
    8
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 HEARING OFFICER CROWLEY: Fine.
    2 MR. NORTHRUP: In that case, my first witness, and
    3 notwithstanding the Board's order of Thursday, would
    4 be Robert Smith.
    5 MR. GAB: Judge, we will object. Relevance.
    6 HEARING OFFICER CROWLEY: Sustained.
    7 MR. NORTHRUP: Okay. In that case, let me ask a
    8 quick question of Mr. Trapp.
    9 HEARING OFFICER CROWLEY: All right. We are off
    10 the record.
    11 (Discussion off the record.)
    12 HEARING OFFICER CROWLEY: We are back on the
    13 record.
    14 MR. NORTHRUP: As my next witness I would call
    15 George Jamison.
    16 MR. TRAPP: Madam Hearing Officer, do you mind if
    17 I sit here just so I can hear a little better?
    18 HEARING OFFICER CROWLEY: Not at all.
    19 MR. TRAPP: Thank you.
    20 MR. SMITH: Mr. Trapp, could you introduce
    21 yourself since you spoke?
    22 MR. TRAPP: Oh, yes. I am sorry. I am William
    23 Trapp.
    24 (Whereupon the witness was sworn by the Notary
    25 Public.)
    9
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 G E O R G E J A M I S O N,
    2 having been first duly sworn by the Notary Public,
    3 saith as follows:
    4 DIRECT EXAMINATION
    5 BY MR. NORTHRUP:
    6 Q Could you go ahead and state your name for
    7 the record.
    8 A George Jamison, J-A-M-I-S-O-N.
    9 Q Are you currently employed, Mr. Jamison?
    10 A Yes.
    11 Q Where is that?
    12 A Hanson Engineers.
    13 Q What do you do at Hanson Engineers?
    14 A I am the vice president of the company, and I
    15 manage our waste management department.
    16 Q Okay. Were you in that position in December
    17 of 1996?
    18 A Yes.
    19 Q With the same general duties?
    20 A Yes.
    21 Q Are you familiar with a siting application
    22 filed by ESG Watts?
    23 A I was familiar with it. I am less familiar
    24 than I was, but I have seen it.
    25 Q Okay. How are you familiar with that?
    10
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 A Pardon me?
    2 Q How are you familiar with the application?
    3 A We reviewed that as part of our -- as part of
    4 the professional services that we provided to the
    5 County.
    6 Q Okay. So you were retained by the County in
    7 this matter?
    8 A Yes.
    9 Q Okay. And what is it that you were supposed
    10 to do for the County in this matter?
    11 A I don't specifically recall all of the
    12 details, but it was essentially to act as a consultant
    13 to them in the review of the siting application.
    14 Q Who was your client in this matter?
    15 A I don't remember which -- if there was a
    16 particular unit of County government other than
    17 County. I just don't recall.
    18 Q How do you normally determine who your client
    19 is?
    20 A I don't think I understand the question.
    21 Q Well, you indicated that you were not sure
    22 what unit of County government your client was in this
    23 case?
    24 A No, I said I didn't recall.
    25 Q Okay. You would agree that Sangamon County
    11
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 is made up of various departments and units?
    2 A Certainly.
    3 Q Okay. Can you tell me which one of those
    4 departments or units you were working for when you
    5 were reviewing the application?
    6 A Not without reference to the contract. My
    7 recollection is that we were retained generally by the
    8 County as an entity, but I don't recall what the
    9 contract said.
    10 Q Okay. So would you look to the contract to
    11 define for you who your client was?
    12 A That would be one place I would look.
    13 MR. NORTHRUP: Okay. Let me show you what I will
    14 ask the court reporter to mark as Exhibit Number 1,
    15 Petitioner's Exhibit Number 1.
    16 (Whereupon said document was duly marked for
    17 purposes of identification as Petitioner's Exhibit
    18 1 as of this date.)
    19 Q (By Mr. Northrup) Can you just review that
    20 for me with an eye towards defining who your client
    21 was in this matter?
    22 A This is a signed professional service
    23 agreement dated March 11th of 1997, and it indicates
    24 here that the client is County of Sangamon.
    25 Q In this -- during your review of the siting
    12
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 application, did you ever meet with any members of the
    2 Sangamon County Board?
    3 A We met with -- I don't remember the name of
    4 the committee offhand, but it was the landfill
    5 committee or the siting review committee. I am not
    6 sure of the terminology without referencing our files
    7 or some other records.
    8 And there are -- as I understand the make-up of
    9 that committee, there are members of the County Board
    10 that comprise the membership of that committee, so to
    11 that extent I guess that would be correct, yes.
    12 Q How many times would you have met with
    13 members of the siting review committee?
    14 A Well, if that is the committee, the name of
    15 the committee I am not sure of, but if that's the
    16 committee that I recall, then it probably would have
    17 been maybe twice, but I don't know. I don't recall
    18 specifically.
    19 Q Okay.
    20 A I think you were at all of those meetings.
    21 Q Okay. That was my next question.
    22 A But I don't recall on either count as to how
    23 many meetings specifically, without records, or who
    24 was present. My general recollection is that you were
    25 there, but I don't know.
    13
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 Q Well, do you have any specific recollection
    2 of meeting with anyone on the siting review committee
    3 where I or Mr. Woodward was not present?
    4 A I just don't recall.
    5 Q Okay. Did you ever meet with any
    6 representatives of the Sangamon County Department of
    7 Public Health?
    8 A Yes.
    9 Q Okay. Who would that have been?
    10 A Mr. Stone.
    11 Q Okay. Was he the only person from Public
    12 Health?
    13 A I believe there were probably also members of
    14 our firm that may have had some interaction with other
    15 people from that department as we collected records
    16 and documentation. So there may have been other
    17 incidental contact, but our primary point of contact
    18 with that department would be Mr. Stone.
    19 Q Okay. But you didn't meet with anybody else?
    20 A I could have incidentally met other people
    21 and just not recall it.
    22 Q Okay. Do you recall what the purpose of any
    23 of those meetings were?
    24 A The primary purpose was to collect the
    25 records and information and to move through the scope
    14
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 of services that we were to provide. A lot of it
    2 dealt with scheduling and progress of the work.
    3 Q Did you meet with -- throughout this process,
    4 which I will represent to you began on December 2nd,
    5 when the siting application was filed, and May --
    6 December 2nd of 1996 and May 31 of 1997, when the
    7 County made its final decision, did you meet with any
    8 representatives of the State's Attorney's office?
    9 A Yes.
    10 Q Who would that have been?
    11 A Robert Smith.
    12 Q Do you recall on how many occasions you met
    13 with Mr. Smith?
    14 A No.
    15 Q Do you recall the substance of any of those
    16 meetings?
    17 A Again, I think it primarily related to the
    18 progress of our review and schedule and generally
    19 updates on the progress of the project.
    20 MR. NORTHRUP: Let me ask the court reporter to
    21 mark Petitioner's Exhibit Number 2.
    22 (Whereupon said document was duly marked for
    23 purposes of identification as Petitioner's Exhibit
    24 2 as of this date.)
    25 Q (By Mr. Northrup) Can you identify that for
    15
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 me, please?
    2 A It is a letter dated January 31st, 1997, to
    3 the Sangamon County Department of Public Health, and
    4 it is a submittal of a statement of qualifications to
    5 provide engineering services related to review of an
    6 application for site approval for the Sangamon Valley
    7 Area 1 overfill.
    8 Q You will note it is signed by an individual
    9 named Robert Cusick; is that right?
    10 A Yes, that's correct.
    11 Q Who is Robert Cusick?
    12 A He is another officer in our company.
    13 Q Okay. Now, there is a document attached to
    14 that January 31 letter; is that correct?
    15 A Yes.
    16 Q Okay. Can you tell me what that is?
    17 A Well, it appears to be a statement of
    18 qualifications as referenced in the letter, but I have
    19 not compared it with what we submitted. So I would
    20 assume that is what it is.
    21 Q On the table of contents, you will note under
    22 roman numeral one, large cap B, team experience. Can
    23 you turn to that section, please?
    24 A Okay.
    25 Q Okay. Now, Hanson had performed work for ESG
    16
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 Watts prior to the siting application; is that
    2 correct?
    3 A I believe that's correct, yes.
    4 Q Okay. Some of that experience is depicted
    5 there at the section that is identified as team
    6 experience?
    7 A Right.
    8 Q Okay. Is that an accurate depiction of the
    9 work that Hanson had done for ESG Watts?
    10 MR. SMITH: I would object to the form of the
    11 question. What does Mr. Northrup mean by accurate?
    12 It is a misleading question.
    13 THE WITNESS: It is really hard to judge that
    14 without review of the records. It does reflect that
    15 we had performed services for Watts, and whether it is
    16 all inclusive or -- I am not sure what you mean by
    17 accurate.
    18 Q (By Mr. Northrup) Okay. Well, other than the
    19 five items that are set out there, do you have any
    20 knowledge of any other work that Hanson performed for
    21 Watts prior to the siting application?
    22 A Not as an unaided recollection. That would
    23 require some research.
    24 Q Take a look at number three which says, 1993,
    25 comma, Phase I and Phase II cultural resources survey
    17
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 for ESG Watts, Inc. Can you tell me what a cultural
    2 resource survey is?
    3 MR. SMITH: We will object as to the relevancy.
    4 MR. NORTHRUP: It is just aiding the Board in some
    5 of the past work that Hanson has performed for Watts.
    6 MR. SMITH: Why is that relevant?
    7 HEARING OFFICER CROWLEY: I am unsure of what
    8 relevance --
    9 MR. NORTHRUP: Without an explanation of what the
    10 cultural resources survey is, the Board is not going
    11 to know what it is. I think there is testimony in his
    12 deposition, either Mr. Jamison or someone else, that
    13 that is, in fact, work that was performed in relation
    14 to a siting application.
    15 HEARING OFFICER CROWLEY: I will give you some
    16 latitude.
    17 And I will allow you to answer if you can, Mr.
    18 Jamison.
    19 THE WITNESS: A cultural resources survey is a
    20 survey that is conducted to identify those resources,
    21 and those can be archeological or historic resources.
    22 I am not sure in this case if we actually performed
    23 that for Watts or for one of their engineers, but a
    24 survey is basically done to identify those as part of
    25 permitting processes.
    18
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 Q (By Mr. Northrup) Okay. Well, let's expand
    2 on that a little bit. Why does a company do a
    3 cultural resources survey?
    4 A Generally it is a requirement of a permitting
    5 process.
    6 Q Okay. And a permitting process would include
    7 a siting process?
    8 A It could, but it can also be other types of
    9 permits.
    10 Q Do you know specifically in this case whether
    11 the work that Hanson did was in relation to a permit
    12 or a siting matter?
    13 A I have no idea.
    14 (Mr. Northrup and Mr. Woodward confer briefly.)
    15 Q (By Mr. Northrup) Mr. Jamison, do you ever
    16 recall advising Watts that you had submitted a
    17 proposal in the siting application to work for the
    18 County?
    19 A I don't know if I -- could you repeat that?
    20 Q Do you recall ever advising Watts that you
    21 had submitted this statement of qualifications to the
    22 County?
    23 MR. SMITH: Objection as to relevancy.
    24 MR. NORTHRUP: It goes to the conflict of
    25 interest, and whether or not there might be some
    19
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 argument down the road that Watts waived the conflict
    2 if, in fact, Hanson had ever requested Watts'
    3 permission to submit the statement of qualifications.
    4 HEARING OFFICER CROWLEY: I will allow you to
    5 answer. It may be arguably relevant.
    6 THE WITNESS: I don't recall specifically whether
    7 we informed Watts. But one of the reasons that we
    8 tried to list under team experience the past services
    9 that had been provided to any client related to the
    10 landfill, for example, in team experience here, was to
    11 be sure that was known and open. And this is a
    12 submittal to a public agency, so we did want that to
    13 be known, that we had done work at that site in the
    14 past for more than one client.
    15 MR. NORTHRUP: Those are all of the questions I
    16 have.
    17 HEARING OFFICER CROWLEY: Mr. Smith?
    18 MR. SMITH: I don't have anything.
    19 HEARING OFFICER CROWLEY: All right. Thank you.
    20 (The witness left the stand.)
    21 MR. NORTHRUP: As my next witness I would call
    22 John Jenkins.
    23 HEARING OFFICER CROWLEY: Please swear the
    24 witness.
    25 (Whereupon the witness was sworn by the Notary
    20
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 Public.)
    2 J O H N J E N K I N S,
    3 having been first duly sworn by the Notary Public,
    4 saith as follows:
    5 DIRECT EXAMINATION
    6 BY MR. NORTHRUP:
    7 Q Can you state your name for the record,
    8 please.
    9 A John Jenkins.
    10 Q What do you do for a living, Mr. Jenkins?
    11 A I am employed at Hanson Engineers.
    12 Q What do you do at Hanson Engineers?
    13 A I am a geo technical engineer, and I also
    14 manage the material testing group.
    15 Q Okay. Are you familiar with a siting
    16 application filed by ESG Watts?
    17 A I am familiar with an application, yes. It
    18 has been awhile since I have reviewed it.
    19 Q Okay. How are you familiar with the
    20 application?
    21 A We reviewed the application as part of our --
    22 part of the services we provided to the County of
    23 Sangamon.
    24 Q What role did you play in those review
    25 services?
    21
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 A I was the project manager for the company.
    2 Q And what does a project manager do?
    3 A Well, my view of project manager is to work
    4 with the various people involved on the project and
    5 coordinate their work, make sure that the schedules
    6 are met, and the deliverables are provided.
    7 Q Who was your client in this case?
    8 A My understanding is the County of Sangamon.
    9 Q Could you be any more specific than that?
    10 A I don't think I can. That's my
    11 understanding, and that's what the contract -- our
    12 agreement was the County of Sangamon.
    13 Q Okay. Did you ever meet with any members of
    14 the County Board? This is all related to the
    15 application, of course.
    16 A Yes. I attended a meeting of the -- of a
    17 committee of the Board, the committee that was
    18 reviewing this -- this application. It was a -- you
    19 were at the meeting.
    20 Q Okay. Do you recall any other meetings with
    21 members of the County Board where I was not present?
    22 A No, I don't recall any.
    23 Q Did you ever meet with any representatives of
    24 the Sangamon County Department of Public Health?
    25 A I met with Jim Stone.
    22
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 Q On how many occasions did you meet with Mr.
    2 Stone?
    3 A I don't recall specifically. Probably two, I
    4 think I recall. I don't know if there may have been
    5 more than that.
    6 Q Do you recall when during the process you had
    7 these meetings with Mr. Stone? Were they before the
    8 actual hearings or were they during the hearings?
    9 A There was a meeting before the hearings, and
    10 that was to discuss procedural issues, physical
    11 issues, like where the hearing would take place or
    12 hearings would take place, what the form of the
    13 hearings would be.
    14 Q How about the 2nd meeting?
    15 A I recall -- if I recall correctly, it was
    16 after the hearings, and it was to discuss what we
    17 would -- Hanson Engineers was to provide, or not what
    18 we were to provide, but what the schedule was and
    19 the -- any reports or reports that we would provide.
    20 Q The second meeting, who was in attendance?
    21 A Jim Stone and George Jamison.
    22 Q Were there any representatives of the
    23 Sangamon County State's Attorney office present?
    24 A I don't recall that -- I don't think so.
    25 Q How about the first meeting where you were
    23
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 discussing procedural issues? Who else was present at
    2 that meeting?
    3 A George Jamison, I believe. I would be fairly
    4 certain he was there. Possibly Robert Smith.
    5 Q Anybody else?
    6 A I can't recall for sure.
    7 Q Would you, from time to time during the
    8 siting process, meet with representatives of the
    9 State's Attorney's office?
    10 A Well, prior to the hearings and during the
    11 hearings we met with Robert Smith.
    12 Q On how many occasions do you recall meeting
    13 with Mr. Smith prior to the hearings?
    14 A I can't recall the number.
    15 Q Okay. More or less than five?
    16 A Before the hearings? Probably more than five
    17 but something maybe on that order.
    18 Q During the hearings, do you recall how many
    19 times you met with Mr. Smith?
    20 A No, I don't.
    21 Q Would you meet -- during the hearings, would
    22 you meet with Mr. Smith outside of meeting with him at
    23 actual hearing time itself?
    24 A Yes.
    25 Q Okay. Do you recall how many times?
    24
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 A No.
    2 Q Okay. Would you routinely meet with him
    3 before every hearing?
    4 A Session?
    5 Q Session.
    6 A I don't know if it would be routinely.
    7 Before some of them certainly. Before all of them, I
    8 don't imagine so.
    9 Q What types of issues would you discuss with
    10 Mr. Smith at these meetings, either before or during
    11 the hearing process?
    12 MR. SMITH: I am going to object as to the
    13 relevancy.
    14 MR. NORTHRUP: It goes to the nature of the
    15 relationship between Hanson and the State's Attorney's
    16 office.
    17 MR. SMITH: Why is that relevant to --
    18 MR. NORTHRUP: And whether they were exercising
    19 their -- ultimately, whether they were exercising
    20 their independent judgment.
    21 HEARING OFFICER CROWLEY: I will sustain the
    22 relevancy objection.
    23 THE WITNESS: Can you repeat the question?
    24 HEARING OFFICER CROWLEY: You don't have to answer
    25 it.
    25
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 THE WITNESS: Oh, okay.
    2 Q (By Mr. Northrup) Did anyone from the State's
    3 Attorney's office -- strike that. You testified at
    4 the hearings, correct?
    5 A Yes.
    6 Q Other employees from Hanson testified at the
    7 hearings, correct?
    8 A That's correct.
    9 Q How did you prepare for your testimony?
    10 A For my testimony? I don't really -- how
    11 would I prepare? We reviewed the application from the
    12 technical point of view. I am not sure I really know
    13 how to answer the question other than we reviewed the
    14 application, and we identified issues or technical
    15 issues that we had questions on or that we found --
    16 that we had questions on or found that were not
    17 present in the application and, therefore, had
    18 questions as to what -- where this information might
    19 be, if it did exist.
    20 Q When you say "we," who do you mean?
    21 A Hanson Engineers, the project team.
    22 Q Did anyone from the State's Attorney's office
    23 assist you in your preparation for the hearing?
    24 A Assist us in -- assist me in the
    25 preparation? I worked with -- Robert Smith and myself
    26
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 discussed these technical issues. If I recall, he
    2 asked questions during the hearing, and they were
    3 issues that we had discussed together.
    4 Q Did you discuss your specific testimony with
    5 Mr. Smith prior to the hearings?
    6 A Discussed in at least a general way. I guess
    7 the answer is we discussed it in a general way.
    8 Q You attended all of the hearings, correct?
    9 A Yes. Yes, I think all of the hearings. If
    10 not all, most of them.
    11 Q Okay. And during those hearings, Mr. Smith
    12 examined and cross-examined witnesses, correct?
    13 A Correct.
    14 Q During the hearing process, did you assist
    15 Mr. Smith in preparing examination or
    16 cross-examination questions for the witnesses who were
    17 on the stand?
    18 A I think we would say we assisted in the
    19 cross-examination questions for sure. During the
    20 testimony we would have questions and we might write
    21 them down.
    22 Q What did you do with them once you wrote them
    23 down?
    24 A In some cases, we would have given them to
    25 Mr. Smith.
    27
    KEEFE REPORTING COMPANY
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    1 Q Okay. Then would he ask those questions of
    2 the witnesses?
    3 A In some cases he would ask those questions or
    4 questions along the lines of what we were writing
    5 down.
    6 Q Just in general, what might prompt you to
    7 write down a question and then pass it to Mr. Smith?
    8 A It would have been a response to a -- to
    9 testimony on technical issues.
    10 Q Well, on an issue that you felt hadn't been
    11 fully explained?
    12 A Possibly.
    13 Q On an issue that you felt the application
    14 might have been lacking?
    15 A Possibly, yes.
    16 Q Prior to the hearings, had you made any
    17 determination as to whether the application, as
    18 submitted by Watts, satisfied the nine criteria set
    19 out in the Environmental Protection Act?
    20 MR. SMITH: I am going to object. Mr. Jenkins'
    21 opinion as to whether the nine criteria were met is
    22 not relevant.
    23 HEARING OFFICER CROWLEY: I am terribly sorry.
    24 But I just didn't catch that.
    25 MR. SMITH: I am sorry. Mr. Jenkins' personal
    28
    KEEFE REPORTING COMPANY
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    1 opinion as to whether the nine criteria had been met
    2 or had not been met is not at issue and is irrelevant.
    3 MR. NORTHRUP: Well, he is the project manager.
    4 Of course, it is relevant. It is going to go to
    5 whether or not they exercised any independent judgment
    6 in reviewing the application.
    7 HEARING OFFICER CROWLEY: I will overrule the
    8 objection. You can answer that question if you can.
    9 THE WITNESS: Could you read it back?
    10 MR. NORTHRUP: Could you read it back.
    11 (Whereupon the requested portion of the record was
    12 read back by the Reporter.)
    13 THE WITNESS: No.
    14 Q (By Mr. Northrup) Prior to the hearings, had
    15 you made any determination as to whether the
    16 application contained sufficient information for you
    17 to make a determination under the Act with respect to
    18 the nine criteria?
    19 A Speaking personally for myself, I would say
    20 that the answer is no. I had not made that
    21 determination.
    22 Q At any time during your review of the siting
    23 application, were you ever asked, you meaning you
    24 personally or Hanson Engineers, ever asked to provide
    25 engineering alternatives to the removal of the waste
    29
    KEEFE REPORTING COMPANY
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    1 from the landfill?
    2 A Were we ever asked to provide them?
    3 Q Correct.
    4 A No.
    5 Q Did you ever offer any?
    6 A Did we ever offer any to --
    7 Q Right, to your client?
    8 A There was a discussion or discussions with
    9 Robert Smith, and the questions during the hearings
    10 regarding alternative -- engineering alternatives.
    11 That would be the extent of it.
    12 Q Okay. I am a little confused. You said that
    13 you had discussions with Robert Smith during the
    14 hearings?
    15 A Discussion -- we had discussions with Robert
    16 Smith on technical issues. There was discussions in a
    17 general way, not specifically for this landfill, of
    18 engineering alternatives. During the hearings
    19 questions were asked of Watts, or the engineers,
    20 whether these had been considered.
    21 Q Okay. I am still a little confused. So
    22 prior to the hearings there were discussions with
    23 Robert Smith and then during the hearings?
    24 A During the hearings as a course of the
    25 hearings, during the testimony.
    30
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 Q Okay. Do you recall if you ever communicated
    2 to Robert Smith that he should ask questions of the
    3 witnesses on engineering alternatives?
    4 A Well, I seem to recall that those questions
    5 were asked. Presumably we possibly -- we had
    6 discussed this with Robert Smith prior to the
    7 hearings.
    8 Q Did you or anyone at Hanson present any
    9 testimony regarding engineering alternatives?
    10 A Not that I recall.
    11 Q At the time of the hearing you had worked at
    12 Hanson for how long?
    13 A What year was the hearing?
    14 Q The hearings were in 1997, in the spring of
    15 1997.
    16 A So I was going on seven years.
    17 Q Okay. And had you worked on any matters
    18 involving ESG Watts prior to that point?
    19 A Yes.
    20 Q Okay. Did you ever advise anyone at ESG
    21 Watts that Hanson had prepared a statement of
    22 qualifications in this matter?
    23 A I am sorry. I -- can you repeat the
    24 question?
    25 Q Yes. Did you at any time advise anybody at
    31
    KEEFE REPORTING COMPANY
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    1 ESG Watts that Hanson had, in fact, prepared a
    2 statement of qualifications, and were going to bid on
    3 this job?
    4 A We didn't bid on the job. We submitted a
    5 statement of qualifications.
    6 Q Submitted a statement of qualifications?
    7 A But, no.
    8 Q Did you ever meet with anyone at the Illinois
    9 Environmental Protection Agency about the siting
    10 application?
    11 A At what point in time? At any time?
    12 Q Any time from December 2nd, 1996, through May
    13 31 of 1997?
    14 A We had a meeting with someone from the
    15 Illinois Environmental Protection Agency at some point
    16 prior to the hearings, and the purpose of the meeting
    17 was to discuss -- well, it wasn't to discuss. It was
    18 to, if I recall correctly, to identify any additional
    19 technical information that was available regarding the
    20 landfill.
    21 Q Now, prior to this meeting you had submitted
    22 a FOIA request to the Agency?
    23 A Yes.
    24 Q Had you received a response to that request
    25 by the time of this meeting?
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    KEEFE REPORTING COMPANY
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    1 A I believe so.
    2 Q Were you in attendance at this meeting?
    3 A Yes.
    4 Q Do you recall was the meeting with an
    5 individual named Chris Leadman?
    6 A I believe that's correct.
    7 Q Do you know what his position was at the
    8 Agency?
    9 A No, not specifically.
    10 Q Do you know why you were meeting with him as
    11 opposed to anybody else from the Agency?
    12 A I presume at some point we were informed
    13 maybe by -- maybe through documents in the -- that we
    14 obtained in the FOIA -- through the FOIA request or in
    15 the application, somehow we were informed that he was
    16 knowledgeable I guess about the landfill, and that's
    17 why we met with him to find out if there was any
    18 additional information. I don't -- but I don't
    19 specifically recall why, you know.
    20 Q Did you advise any representative of ESG
    21 Watts that you were going to have this meeting with
    22 the IEPA?
    23 A No.
    24 Q Do you recall that the siting review
    25 committee requested that Hanson prepare a final report
    33
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 for them to review in this matter?
    2 A I don't specifically recall.
    3 Q Do you recall drafting some kind of final
    4 report for the committee?
    5 A I recall that we drafted a draft report for
    6 the committee.
    7 Q And this was at their request?
    8 A At the committee's request?
    9 Q At the committee's request?
    10 A It was -- the requirements for a report -- if
    11 I recall, the requirements for a report were included
    12 in the scope of services.
    13 Q You did, in fact, prepare that report?
    14 A There was a requirement for the report in the
    15 scope of services. We were -- and we prepared a
    16 report, a draft report. The scope of services may
    17 have been modified to not include a final report. I
    18 am really not -- I can't recall exactly.
    19 Q What did you do with the draft report? Did
    20 you submit it to the committee?
    21 A I don't recall exactly who we submitted it
    22 directly to. I would assume the committee, but I am
    23 not sure if it would have been a committee or the
    24 Department of Public Health.
    25 Q Okay.
    34
    KEEFE REPORTING COMPANY
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    1 A Or the county clerk. The record would show
    2 it. I just don't recall.
    3 Q Do you recall showing that draft report to
    4 Mr. Smith prior to its formal submission to the clerk
    5 or the committee or Public Health?
    6 A I don't specifically recall. I don't think
    7 that we showed them the final -- I am fairly certain
    8 that we didn't show them the final draft report until
    9 it was submitted.
    10 Q Did you show them any drafts along the way
    11 prior to getting to the final draft?
    12 A I don't recall. It may be possible that he
    13 saw a predraft draft.
    14 Q During the actual hearing process, did you
    15 have any communications with any members of the siting
    16 review committee?
    17 A Communications, no. What is communications?
    18 Q Did you talk to anybody?
    19 A We saw them in the hallway.
    20 Q Okay.
    21 A I may have said hi.
    22 Q Anything of substance related to the
    23 application?
    24 A Nothing of substance. The only -- the only
    25 thing -- nothing of substance. During the hearings
    35
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 one of the Board Members leaned over the rail and made
    2 some -- made a comment or something about drilling or
    3 something like that. And that was it.
    4 Q I mean, was the comment directed towards you?
    5 A No.
    6 Q Okay. Did you respond in any way or did
    7 anybody from your side of the table respond?
    8 A He asked some question regarding drilling,
    9 and my response was I don't know or something like
    10 that. It was not -- I didn't provide any --
    11 Q Do you recall which committee member it was?
    12 A It is -- the name Bob Nagelini (spelled
    13 phonetically). I think I remember that.
    14 MR. NORTHRUP: May I ask the court reporter to go
    15 ahead and mark this as Petitioner's Exhibit number 3.
    16 (Whereupon said document was duly marked for
    17 purposes of identification as Petitioner's Exhibit
    18 3 as of this date.)
    19 Q (By Mr. Northrup) Can you just go ahead and
    20 identify that for me?
    21 A It is a letter from Hanson Engineers to the
    22 Office of the County Clerk, Sangamon County, and it is
    23 a filing in memorandum and support of the entry of
    24 appearance.
    25 Q Is that your signature on the last page?
    36
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 A Yes, it is.
    2 CROSS EXAMINATION
    3 BY MR. WOODWARD:
    4 Q As to Petitioner's Exhibit Number 3, and the
    5 first sentence -- excuse me -- the second sentence --
    6 the first sentence, you indicate that this memorandum
    7 is filed in support of an entry of appearance filed by
    8 the County of Sangamon; is that correct?
    9 A That's what it says. That's the first
    10 sentence, though, right.
    11 Q Is it the first sentence?
    12 A Okay.
    13 Q Well, there is no comma after Inc., so I was
    14 not sure. At the time you wrote this, then, did you
    15 understand that the County of Sangamon was a party to
    16 this proceedings?
    17 A I don't recall. Just from what it says it
    18 appears that we filed a support of -- the entry of
    19 appearance filed by the County of Sangamon, so it
    20 appears that it was our impression that there was an
    21 entry of appearance filed by the County of Sangamon.
    22 Q And is it your understanding that entry of
    23 appearance that that makes them a party?
    24 A No, I am not certain exactly what that means.
    25 Q Okay.
    37
    KEEFE REPORTING COMPANY
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    1 A My understanding would be more that they have
    2 filed information just as a -- anybody from the public
    3 could file.
    4 Q Now, the prior questions as to the County of
    5 Sangamon, you indicated that it was your understanding
    6 it was County of Sangamon generally, is that correct,
    7 that was your client?
    8 A Our client, yes.
    9 Q Here the County of Sangamon is identified as
    10 your client, right, somewhere in this document?
    11 A HEI has been retained by Sangamon County,
    12 correct.
    13 Q Now, retained by Sangamon County, does that
    14 include the County Board?
    15 A That's a question I don't know the -- I mean,
    16 I don't know the answer to. It seems to me that is a
    17 legal question.
    18 Q Didn't you indicate that the professional
    19 services agreement, which I think is identified as --
    20 has been marked as Petitioner's Exhibit Number 1, that
    21 part of that document was that you were to prepare a
    22 final report?
    23 A That's correct.
    24 Q And who was that final report to go to?
    25 A It would be the client, which would be the
    38
    KEEFE REPORTING COMPANY
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    1 County of Sangamon.
    2 Q Well, I want to direct your attention to page
    3 two of Petitioner's Exhibit Number 1.
    4 A Okay.
    5 Q What is number -- does number eleven, in
    6 fact, say prepare finding of fact report for approval
    7 of committee?
    8 A Yes, it does.
    9 Q Okay. Is the committee a committee of the
    10 County Board?
    11 A I don't -- I would assume so. I don't know
    12 that -- if it was defined in here or not.
    13 Q Well, they were your client. Did you
    14 understand them to be a committee of the County Board?
    15 A No, I understood them to be the County. I
    16 don't know that I understood it to be specifically a
    17 committee.
    18 Q When you attended the hearings, were there
    19 any persons sitting as part of the committee who were
    20 not members of the County Board?
    21 A I don't believe so.
    22 Q All right. Did you understand that the
    23 committee was then to give a recommendation to the
    24 County Board?
    25 A Yes.
    39
    KEEFE REPORTING COMPANY
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    1 Q Okay. So you -- also on page two of
    2 petitioner's Exhibit Number 1, number ten talks about
    3 the -- excuse me -- number nine talks about preparing
    4 written evidence and testimony at the public hearing;
    5 is that correct?
    6 A That's correct.
    7 Q As part of the scope of services, and prepare
    8 a summary report after public hearing if requested by
    9 the client. Is that also part of the scope of
    10 services?
    11 A Yes.
    12 Q So weren't you, in fact, doing two things in
    13 this process; assisting a party to the proceedings,
    14 and cross-examining and serving as an adverse party,
    15 and then serving as a consultant to the decision
    16 maker?
    17 MR. SMITH: Objection. Argumentative.
    18 HEARING OFFICER CROWLEY: I will sustain the
    19 objection to the form of the question. This is your
    20 witness.
    21 Q (By Mr. Woodward) Did you serve two roles in
    22 this process?
    23 A No, I don't believe so. Our role was
    24 technical review of the application, and that was --
    25 in a nutshell that was our role, and that's what we
    40
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 provided.
    2 Q In performing what you considered your role,
    3 did you provide assistance in cross-examining
    4 witnesses?
    5 A Yes.
    6 Q And did you prepare a draft or final report
    7 for the siting review committee, which summarized
    8 evidence and gave recommendations?
    9 A We prepared a draft report which summarized
    10 the evidence. The draft report did not provide
    11 recommendations. I don't believe that -- I don't
    12 recall that we provided recommendations at all. We
    13 just summarized the report or the application.
    14 (Mr. Northrup and Mr. Woodward confer briefly.)
    15 MR. WOODWARD: May I approach the witness?
    16 HEARING OFFICER CROWLEY: Yes.
    17 Q (By Mr. Woodward) Are you telling me that you
    18 don't recall whether your draft report had any
    19 recommendations in it?
    20 A Yes.
    21 Q Okay. Would examining the draft report
    22 refresh your memory?
    23 A Conceivably, yes.
    24 MR. SMITH: I am going to object to handing the
    25 witness something outside the public record. On pages
    41
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 13231 to 13283 -- I am sorry -- 13176 to 13230 is the
    2 report of the Regional Pollution Control Facility and
    3 Hanson's review of the application, so what he is
    4 attempting to hand him, there is an official copy in
    5 that box over there.
    6 MR. WOODWARD: Okay. I will pull it out of that
    7 box if you want me to.
    8 HEARING OFFICER CROWLEY: Okay. Off the record.
    9 (Discussion off the record.)
    10 HEARING OFFICER CROWLEY: Back on the record.
    11 Q (By Mr. Woodward) I am handing you what is
    12 labeled Volume -- roman numeral -- I think that's 54
    13 of the official record. Directing your attention to
    14 page C13236, would you read that particular paragraph?
    15 A Which one?
    16 Q The one I am directing you to.
    17 A Overall, the application appears to lack the
    18 details necessary to demonstrate compliance to the
    19 statutory criteria and, thus, few of the criteria
    20 required for approval of the application have been
    21 met.
    22 Q Is that a recommendation?
    23 A I would consider that to be more a summary of
    24 our opinion.
    25 Q So it is a statement of opinion that you are
    42
    KEEFE REPORTING COMPANY
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    1 giving the Sangamon Review Board in your draft final
    2 report?
    3 A A statement of our position or our view of
    4 it.
    5 Q Now, there are some charts starting on page
    6 C13237 and going to C13251. And in those charts do
    7 you not set forth what the criteria number is, the
    8 section of the code that gives that criteria, the
    9 criteria description, and the applicable regulatory
    10 section, and then you state an opinion as to whether
    11 there is sufficient documentation, insufficient
    12 documentation, or it does not meet compliance; is that
    13 correct?
    14 A That's correct.
    15 Q And on page C13239 are there not two where
    16 you have stated that it does not meet compliance, two
    17 separate lines?
    18 A That's correct, that's what it says.
    19 Q Is that a recommendation since this is a
    20 draft report?
    21 A No, I would not call it a recommendation.
    22 Again, it is our opinion as to whether this -- the
    23 application met the compliance or information provided
    24 in that application met compliance with these
    25 applicable regulatory sections.
    43
    KEEFE REPORTING COMPANY
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    1 Q Okay. Then on page C1324, again, there is
    2 another one line in the chart on that page that
    3 says -- where you have given your opinion, Hanson
    4 Engineers opinion that there is something in that
    5 criteria that was not -- that does not meet the
    6 compliance, in the application that does not meet the
    7 criteria stated on that page, correct?
    8 A The application does not meet the criteria
    9 stated on this page, that's correct, the applicable
    10 regulatory section.
    11 Q On that page there is several where you have
    12 indicated, or that Hanson Engineers has indicated,
    13 that there is insufficient documentation to determine
    14 whether they are in compliance or not; is that
    15 correct?
    16 A With those regulatory criteria or sections,
    17 yes.
    18 Q And in every case in this chart you are
    19 saying if -- that you have not given a recommendation
    20 but just the opinion of Hanson Engineers; is that
    21 correct?
    22 A Yes.
    23 Q Did you understand the County Board -- excuse
    24 me -- the siting review board having a belief that you
    25 served as independent consulting engineers to them?
    44
    KEEFE REPORTING COMPANY
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    1 MR. SMITH: Objection. Calls for speculation,
    2 what the County Board review members may have thought.
    3 MR. WOODWARD: I don't believe there is
    4 speculation. Personally, I was at one of the
    5 meetings, and that statement was made where he said he
    6 was present.
    7 MR. SMITH: Mr. Woodward is going to now recuse
    8 himself from the case and be a witness in the case, if
    9 he wants to testify.
    10 MR. WOODWARD: I didn't say I wanted to testify.
    11 He is saying speculation. I am saying he can say
    12 whether a County Board Member who sat on the --
    13 HEARING OFFICER CROWLEY: He can -- the witness
    14 can testify as to his understanding, if any.
    15 You can respond to that question.
    16 THE WITNESS: You will have to repeat it.
    17 MR. WOODWARD: Okay.
    18 HEARING OFFICER CROWLEY: Read back the question,
    19 please.
    20 (Whereupon the requested portion of the record was
    21 read back by the Reporter.)
    22 THE WITNESS: I don't know what their belief was.
    23 Q (By Mr. Woodward) Was it ever expressed at a
    24 meeting in which you attended by any member of the
    25 committee in open session?
    45
    KEEFE REPORTING COMPANY
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    1 A I don't specifically recall them saying that.
    2 Q Thank you.
    3 (Mr. Northrup and Mr. Woodward confer briefly.)
    4 Q (By Mr. Woodward) I believe you testified
    5 prior to a question directed to you by Mr. Northrup
    6 that you did not give ESG Watts or anybody at ESG
    7 Watts notice that you were submitting a proposal in
    8 response to the request for proposals issued by the
    9 County of Sangamon; is that correct?
    10 MR. SMITH: I am going to object. It has been
    11 asked and answered.
    12 HEARING OFFICER CROWLEY: It has been answered.
    13 MR. SMITH: They have two Counsel. Let's keep it
    14 so that we are not asking the same questions over all
    15 of the time.
    16 Q (By Mr. Woodward) One step further. Did you
    17 ever seek the permission from anyone, from anybody at
    18 ESG Watts to do so?
    19 MR. SMITH: Objection as to relevancy.
    20 MR. WOODWARD: Again, it goes to the issue of
    21 whether there is a conflict of interest, and as stated
    22 by the rules of professional ethics governing
    23 engineers, whether they could serve in the role of
    24 consultants to the County of Sangamon when they had
    25 done prior work for ESG Watts, and whether there was
    46
    KEEFE REPORTING COMPANY
    Belleville, Illinois

    1 bias on the part of Hanson Engineers.
    2 And because this report was -- appears to be
    3 heavily relied upon by the siting review board, it
    4 goes to the issue of whether that bias affected their
    5 judgment. I mean, since this is prepared summary of
    6 the evidence and gave opinions, I believe it is very
    7 relevant in that regard.
    8 HEARING OFFICER CROWLEY: I believe this is
    9 outside the scope of what the Board will consider
    10 here. I will allow you to answer the question as an
    11 offer -- ask the question as an offer of proof if you
    12 would care to.
    13 MR. WOODWARD: Yes, I would.
    14 HEARING OFFICER CROWLEY: So this is an offer of
    15 proof. You may answer if you can.
    16 THE WITNESS: To my knowledge -- are you asking me
    17 personally?
    18 Q (By Mr. Woodward) I am asking if you did.
    19 A No, no.
    20 HEARING OFFICER CROWLEY: Mr. Smith, as part of
    21 the offer of proof, do you have any question for Mr.
    22 Jenkins on that point?
    23 MR. SMITH: No questions.
    24 HEARING OFFICER CROWLEY: All right. That
    25 concludes the offer of proof?
    47
    KEEFE REPORTING COMPANY
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    1 MR. WOODWARD: Yes, and I am finished with
    2 questioning.
    3 HEARING OFFICER CROWLEY: All right. Fine. Mr.
    4 Smith, do you have cross for Mr. Jenkins?
    5 MR. SMITH: Just a few.
    6 HEARING OFFICER CROWLEY: Okay.
    7 CROSS EXAMINATION
    8 BY MR. SMITH:
    9 Q Mr. Jenkins, you indicated that you testified
    10 during the course of this landfill siting hearing; is
    11 that correct?
    12 A That's correct.
    13 Q And you were subject to cross-examination?
    14 A That's correct.
    15 Q Mr. Northrup had an opportunity to ask you
    16 questions?
    17 A Yes, I believe he did.
    18 Q Okay. Did he ask you substantial questions
    19 about the relationship between ESG Watts and Hanson
    20 Engineers prior to Hanson working for the County, if
    21 you recall?
    22 A Yes, I recall that he did ask questions
    23 involving that. I don't specifically remember what
    24 questions.
    25 Q Mr. Northrup also just referred to
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    1 engineering alternatives, and whether they were
    2 brought up during the course of the proceedings. Was
    3 landfill mining mentioned as a possible alternative to
    4 the removal of waste?
    5 A During the hearings was that --
    6 Q Yes.
    7 A I believe that -- I believe that that was
    8 asked of the -- of the Watts engineer.
    9 Q Okay. While you were subject to
    10 cross-examination, Mr. Northrup could have asked you
    11 about landfill mining, couldn't he?
    12 A I assume so.
    13 Q Mr. Northrup referred to a contact that you
    14 had with Robert Nagelini, a County Board Member?
    15 A Uh-huh.
    16 Q Do you recall the substance of the question
    17 Mr. Nagelini asked when he leaned over the railing, as
    18 you referred to it?
    19 A It had to do with -- it must have been a
    20 discussion or testimony of drilling at or around the
    21 land site, the landfill site. And his question was
    22 involving something about could they drill -- could
    23 they have -- did they drill vertically or
    24 horizontally, or could they have drilled horizontally
    25 or something to that effect, and that was the
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    1 question.
    2 Q Okay. Do you recall how you responded to
    3 that question?
    4 A I believe I said I don't know.
    5 Q Okay. But that's a good question to ask?
    6 A Yes.
    7 Q Okay.
    8 A Something like that, but I didn't want to --
    9 I was conscious of trying not to provide any answer to
    10 him, because I was aware that I was not to be talking
    11 to any Board Members.
    12 Q Okay. How were you made aware that you were
    13 not supposed to talk to any Board Members?
    14 A It was part of the discussions that we had
    15 had in-house. We are aware of previous landfill
    16 siting cases or whatever where contact with the
    17 members who are making the decision has been an issue.
    18 Q And you had in-house discussion about these
    19 Pollution Control Board cases or appellate court cases
    20 that talk about fundamental fairness?
    21 A Right.
    22 Q And not having ex parte contacts?
    23 A Exactly.
    24 MR. SMITH: I don't have anything further.
    25 HEARING OFFICER CROWLEY: Anything on redirect?
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    1 MR. NORTHRUP: Yes.
    2 REDIRECT EXAMINATION
    3 BY MR. NORTHRUP:
    4 Q I kind of missed that last question. You
    5 indicated that there were in-house discussions about
    6 the issues of fundamental fairness and that type of
    7 thing?
    8 A Yes. I recall a -- I don't know if it is a
    9 publication. It was a summary of some Pollution
    10 Control Board or appellate cases where ex parte
    11 contact was an issue, and I reviewed that document,
    12 and I know I have discussed it with others.
    13 Q Okay. Did you discuss it with Mr. Smith?
    14 A It is very likely possible. I don't
    15 specifically recall, but I would imagine so.
    16 Q Do you think it was Mr. Smith who provided
    17 you with this publication?
    18 A No, I don't believe it is.
    19 Q Other than leaving the waste in place,
    20 removing it, or landfill mining, what other
    21 engineering alternatives might have been available to
    22 ESG Watts?
    23 MR. SMITH: I am going to object. The testimony
    24 concerning the merits of the criteria are supposed to
    25 be based solely upon the record. Mr. Northrup is now
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    1 attempting to try to put in technical evidence
    2 involving criteria, which is not appropriate at this
    3 juncture.
    4 MR. NORTHRUP: Mr. Smith specifically raised the
    5 single issue of landfill mining. Again, whatever
    6 other alternatives are out there, and which Hanson may
    7 have discussed prior to the hearing, go to whether or
    8 not Hanson exercised its independent judgment in
    9 presenting those alternatives or not presenting those
    10 alternatives to the Board.
    11 MR. SMITH: In response, during the course of Mr.
    12 Jamison's testimony or any of the other three
    13 individuals from Hanson Engineers that testified
    14 during the course the proceedings, Mr. Northrup could
    15 have said, okay, you don't like our application. What
    16 about these things? Or do you have any other
    17 alternatives? At no time did he choose to ask about
    18 these environmental alternatives that he now wants to
    19 put in front of the Board. I don't believe it is
    20 relevant, and ask the Board to sustain the objection.
    21 MR. NORTHRUP: Again, it is not an issue.
    22 HEARING OFFICER CROWLEY: I am going to sustain
    23 the objection and I also believe it is outside the
    24 scope of cross-examination.
    25 MR. NORTHRUP: I don't have any further
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    1 questions.
    2 MR. SMITH: Nothing further.
    3 HEARING OFFICER CROWLEY: Thank you. I am sorry.
    4 I do have one question. As the Hearing Officer in
    5 this proceeding, I don't make decisions or recommend
    6 decisions to the Pollution Control Board. My job is
    7 to provide a record that is as easy for them to work
    8 with and as complete as possible.
    9 If you could just -- we have been speaking about
    10 landfill mining. If you could just give us, in a
    11 short form, what your understanding of landfill mining
    12 is.
    13 THE WITNESS: My understanding is that it is the
    14 selective removal of a portion of the parts of the
    15 waste that could be recycled or recovered, so that
    16 would remove -- that would, in effect, remove a
    17 portion of the waste.
    18 HEARING OFFICER CROWLEY: Thank you. I just
    19 wanted some definition of the term that was close to
    20 the testimony.
    21 THE WITNESS: Okay.
    22 HEARING OFFICER CROWLEY: Thank you.
    23 (The witness left the stand.)
    24 HEARING OFFICER CROWLEY: I think it would be
    25 appropriate to take five minutes.
    53
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    1 (Whereupon a short recess was taken.)
    2 HEARING OFFICER CROWLEY: All right. Back on the
    3 record.
    4 Mr. Northrup, your next witness.
    5 MR. NORTHRUP: Scott Yankey.
    6 (Whereupon the witness was sworn by the Notary
    7 Public.)
    8 A L A N S C O T T Y A N K E Y,
    9 having been first duly sworn by the Notary Public,
    10 saith as follows:
    11 DIRECT EXAMINATION
    12 BY MR. NORTHRUP:
    13 Q Can you go ahead and state your name for the
    14 record.
    15 A It is Alan, A-L-A-N, Scott Yankey.
    16 Q Where do you work?
    17 A Hanson Engineers.
    18 Q And you were involved in the review of the
    19 Watts siting application?
    20 A Yes.
    21 Q Kind of in general tell me what role you
    22 played in the review of the application?
    23 A I reviewed the application -- portions of the
    24 application that included descriptions of the site
    25 geology and hydrogeologic conditions.
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    1 Q You are a hydrogeologist?
    2 A Yes. As --
    3 Q Did you -- go ahead.
    4 A I am sorry. As well as information obtained
    5 from the IEPA as part of the FOIA request. I reviewed
    6 that data as well.
    7 Q Okay. Did you testify at the hearing?
    8 A Yes.
    9 Q During the -- or prior to the hearings, did
    10 you meet with anyone from the IEPA?
    11 A Yes, I believe there was one meeting at the
    12 IEPA.
    13 Q Do you recall who you met with?
    14 A From earlier Chris Leadman was mentioned.
    15 That jogs a memory.
    16 Q Okay. Did you advise anyone at ESG Watts of
    17 this meeting at the IEPA?
    18 A No, I did not.
    19 Q Was anyone from ESG Watts at that meeting?
    20 A I don't believe so.
    21 Q Who was at the meeting beside yourself and
    22 Mr. Leadman?
    23 A Myself, Chuck Burgert, John Jenkins, perhaps
    24 Devin Moose, I believe. I believe that's it.
    25 Q Okay. During your review of the application,
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    1 would you from time to time meet with Robert Smith of
    2 the State's Attorney's office?
    3 A Yes.
    4 Q Do you recall about how many times you would
    5 have met with him?
    6 A Prior to the hearings?
    7 Q Prior to.
    8 A Several. I would say five or more.
    9 Q You did indicate you testified at the
    10 hearing; is that correct?
    11 A Yes.
    12 Q Did Mr. Smith help you or help prepare you
    13 for your testimony?
    14 A He informed me a little bit logistically, I
    15 suppose, about how things would be handled, if that's
    16 what you mean.
    17 Q Did you discuss the specifics of your
    18 testimony with Mr. Smith?
    19 A Yes.
    20 Q Did you and Mr. Smith put together some
    21 specific questions that you were going to be asked?
    22 A I formulated some questions that I thought
    23 would be good questions.
    24 Q And were those questions ultimately asked of
    25 you?
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    1 A Some of them. Some of them weren't, I
    2 think.
    3 Q Other than testifying at the hearing, did you
    4 attend all of the hearings?
    5 A Not all of the hearings. I don't recall
    6 exactly how many I attended, but certainly not all of
    7 them.
    8 Q During the hearings that you attended, did
    9 you provide questions to Mr. Smith that he in turn
    10 could ask the witnesses?
    11 A I don't believe that I did, no.
    12 Q During your review of the application, did
    13 you know that Hanson had done some prior work for ESG
    14 Watts?
    15 A Yes.
    16 Q And how did you come by that knowledge?
    17 A Just kind of secondhand. I had heard it
    18 mentioned that we had done some work there before.
    19 Q During Hanson's review of the application,
    20 were there -- and this is prior to the hearings. Were
    21 there any discussions regarding the merits of the
    22 application?
    23 A I don't recall exactly, but probably.
    24 Q During those discussions, did you discuss
    25 what you might or what might be -- what you might have
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    1 felt were shortcomings of the application?
    2 A Probably so, yes.
    3 Q Did you ever at any time prior to the
    4 hearings or during discuss any method or means by
    5 which those shortcomings could be addressed or
    6 overcome?
    7 A Yes, I believe so, probably.
    8 Q Okay. Do you recall whether you or anyone at
    9 Hanson ever presented any of those methods or means to
    10 the site review committee?
    11 A No, I don't believe so. These were mainly
    12 items that came up as part of the review process, more
    13 of between ourselves type of discussions.
    14 Q Were you ever asked to develop any
    15 engineering alternatives to any of the shortcomings in
    16 the application?
    17 A No, I don't believe so.
    18 Q Who was Hanson's client in this matter?
    19 A Sangamon County, as far as I know.
    20 Q Does that include the Sangamon County State's
    21 Attorney's office?
    22 A I don't know.
    23 Q Does it include the Sangamon County
    24 Department of Public Health?
    25 A I don't know.
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    1 Q Does it include the siting review committee?
    2 A I don't know.
    3 Q Does it include the Sangamon County Board?
    4 A I am not sure.
    5 Q Did anyone at Hanson ever tell you, with any
    6 more specificity than just Sangamon County, who your
    7 client was during this project?
    8 A Not that I am aware of, no.
    9 Q Based upon your participation in the process,
    10 what is your understanding of who your client was?
    11 A I don't know that I ever expressed any
    12 burning desire to find that out. I had tasks to
    13 perform, and it didn't really make much difference who
    14 the client was.
    15 Q Other than Mr. Smith, did you meet with
    16 anyone from the Sangamon County State's Attorney's
    17 office?
    18 A I don't believe so.
    19 Q Okay. During the whole process did you ever
    20 meet with anyone from the Sangamon County Department
    21 of Public Health?
    22 A Yes.
    23 Q Okay. Who was that?
    24 A I believe his last name was Alexander. I
    25 think he was someone from Public Health that had
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    1 experience at the landfill.
    2 Q How many occasions did you meet with him?
    3 A Once, I believe.
    4 Q Where was that?
    5 A We took -- we went to the landfill and had a
    6 tour of the facility there.
    7 Q Did you ever meet with Jim Stone in relation
    8 to the application?
    9 A Not that I recall. I may have.
    10 Q Okay. Did you ever meet with or communicate
    11 with any members of the siting review committee during
    12 this process?
    13 A No. Just in passing to say hello is all.
    14 Q How about any other Members of the County
    15 Board, other than those that were on the siting review
    16 committee?
    17 A No.
    18 MR. NORTHRUP: I don't have any further
    19 questions.
    20 HEARING OFFICER CROWLEY: Mr. Smith?
    21 MR. SMITH: No questions.
    22 HEARING OFFICER CROWLEY: Thank you. You are
    23 excused.
    24 (The witness left the stand.)
    25 MR. NORTHRUP: My next witness is Charles
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    1 Burgert.
    2 (Whereupon the witness was sworn by the Notary
    3 Public.)
    4 C H A R L E S E. B U R G E R T,
    5 having been first duly sworn by the Notary Public,
    6 saith as follows:
    7 DIRECT EXAMINATION
    8 BY MR. NORTHRUP:
    9 Q Can you state your name for the record.
    10 A It is Charles E. Burgert.
    11 Q And you are --
    12 HEARING OFFICER CROWLEY: Excuse me one moment.
    13 Would you like a glass of water?
    14 THE WITNESS: Yes.
    15 (Whereupon a short recess was taken.)
    16 HEARING OFFICER CROWLEY: Excuse me for
    17 interrupting, Mr. Northrup.
    18 MR. NORTHRUP: That is okay.
    19 Q (By Mr. Northrup) We have your name on the
    20 record, right?
    21 A Yes.
    22 Q You are currently employed at Hanson
    23 Engineers?
    24 A That is correct.
    25 Q You are a geo technical engineer?
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    1 A Yes.
    2 Q And you participated in the review of the ESG
    3 Watts siting application?
    4 A Yes.
    5 Q Give me a real in general synopsis of what
    6 you did as far as your review?
    7 A I reviewed the clay liner, the clay cover
    8 aspects, the -- I guess some of the aspects with the
    9 slopes of the landfill, and some of the surface
    10 hydrology aspects.
    11 Q Okay. You did testify at the hearing?
    12 A Yes, I did.
    13 Q Prior to the hearings, did you meet with
    14 anyone from the Illinois EPA?
    15 A We had one meeting, which has been mentioned
    16 previously here, with Chris Leadman.
    17 Q Did you advise anyone at ESG Watts of that
    18 meeting?
    19 A No.
    20 Q And there was no one from ESG Watts at the
    21 meeting, correct?
    22 A No.
    23 Q Why were you meeting with Mr. Leadman?
    24 A We were -- the purpose of the meeting was to
    25 try and develop more of an understanding of the
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    1 history of the landfill.
    2 Q Did you bring anything with you to the
    3 meeting?
    4 A Yes, I brought some drawings that were from
    5 the application, and I believe we brought some
    6 historical drawings that came from the FOIA request.
    7 Q During Hanson's review of the application,
    8 would you from time to time meet with Mr. Robert
    9 Smith?
    10 A Yes, Robert came to our office several
    11 times.
    12 Q Do you recall how many times?
    13 A I can't give you a specific number, but I am
    14 sure it was more than five times. There was about a
    15 one or four week period maybe.
    16 Q Did Mr. Smith help prepare you for your
    17 examination?
    18 A I wouldn't say that Mr. Smith helped prepare
    19 me.
    20 Q Did he assist you in any way with respect to
    21 your testimony?
    22 A I don't think he assisted me either.
    23 Q Did you discuss any questions that he might
    24 ask you?
    25 A I discussed my findings with Mr. Smith, and
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    1 in my particular presentation it involved upwards of
    2 about 26 figures and drawings, and I did suggest
    3 questions to Mr. Smith so that we could organize the
    4 presentation of those drawings in a clear and concise
    5 manner to the hearing.
    6 Q Did Mr. Smith in general follow along with
    7 the suggestions that you had made?
    8 A I think as far as in general that we did
    9 follow a format to present the information.
    10 Q During the hearing, would you from time to
    11 time provide Mr. Smith with questions that he could
    12 ask other witnesses who might be on the stand?
    13 A There was one gentleman that -- Mr. Burgstrom
    14 (spelled phonetically) and he was the opposing expert,
    15 I guess you would say, to my testimony. And during
    16 his testimony or even prior to his testimony, I
    17 prepared some general questions, because he had
    18 inconsistencies with some of our findings, and thought
    19 it would be good to have those asked so we could try
    20 and understand his basis.
    21 Q And were those questions ultimately asked?
    22 A In general I would say that they were. I
    23 can't say word for word that they were.
    24 Q After Mr. Smith had had this opportunity to
    25 ask the questions that you suggested, did you have any
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    1 remaining concerns with Mr. Burgstrom's testimony?
    2 A I think there is still areas of
    3 inconsistencies between our findings and Mr.
    4 Burgstrom's reports, but it would take more than
    5 questions to get answers to those.
    6 Q What would it take other than questions?
    7 A I think it would take additional site
    8 investigations.
    9 Q At any time throughout this process, did you
    10 advise Mr. Smith that additional site investigation
    11 might be warranted?
    12 A I think that if I recall, when we show or at
    13 least when our findings were developed and they were
    14 inconsistent with Mr. Burgstrom's findings that the
    15 only way you could get an answer to them is by more
    16 site investigations. And even if you did more site
    17 investigations possibly you couldn't get all of the
    18 answers to the inconsistencies.
    19 Q Did you so advise Mr. Smith of that fact?
    20 A I don't know if I specifically advised him of
    21 that, as much as just in discussing my findings
    22 indicated that there is areas that need additional
    23 work if they can be determined.
    24 Q Did you ever advise anyone on the site review
    25 committee that additional investigation might be
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    1 warranted?
    2 A I don't believe anyone ever asked that
    3 question.
    4 Q So I take it that's a no, you did not advise
    5 anyone on the committee?
    6 A Well, once again, I will say I was never
    7 asked that question.
    8 Q And, again, I will ask you, did you ever
    9 advise anyone on the committee that additional site
    10 investigation might be warranted?
    11 MR. SMITH: Objection. Asked and answered.
    12 MR. NORTHRUP: Well, that's the point, Your
    13 Honor. It has not been answered. If you would
    14 instruct --
    15 HEARING OFFICER CROWLEY: I will allow him to
    16 answer. Please do.
    17 THE WITNESS: Okay. Would you please read it
    18 again? Did I --
    19 Q (By Mr. Northrup) Did you ever advise anybody
    20 on the committee that additional investigation might
    21 be warranted?
    22 A I never advised anyone on the committee that
    23 additional investigation could be warranted, but then
    24 again -- well, I will leave it like that.
    25 Q Throughout this process did you ever have any
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    1 communications with anybody on the site review
    2 committee?
    3 A Yes, one.
    4 Q Okay. Tell me about that.
    5 A There was a gentleman at -- during a break,
    6 when I was out in the hallway, who came up to me and
    7 introduced himself, and when he introduced himself I
    8 told him that I couldn't talk to him.
    9 Q That was the only communication that you had
    10 with anybody on the committee?
    11 A Yes, that's correct.
    12 Q Did you ever have any communications with
    13 anybody on the Sangamon County Board other than anyone
    14 who might have been on the committee?
    15 A Not to my knowledge, no.
    16 Q Did you ever have any communications with
    17 anybody from the Sangamon County Department of Public
    18 Health during this process?
    19 A One time I believe I talked to Mr. Stone
    20 about I needed a location to put our exhibits to store
    21 them.
    22 Q Anything of substance related to the
    23 application?
    24 A No.
    25 Q During the review of the application, did you
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    1 ever become aware that Hanson had performed some prior
    2 work for ESG Watts?
    3 A I believe I became aware of that during the
    4 hearings possibly. I think it was during the
    5 hearings.
    6 Q All right. Do you recall how you became
    7 aware of that?
    8 A I think I heard some questions asked during
    9 the hearing about that.
    10 Q Who was Hanson's client in this matter?
    11 A I never found that out. I don't know.
    12 Q Did you ever ask anyone?
    13 A No.
    14 Q Throughout this process and -- well, based
    15 upon your participation in this process, what was your
    16 understanding of who Hanson's client was?
    17 A Sangamon County.
    18 Q Did Sangamon County include the Sangamon
    19 County State's Attorney's office?
    20 A I would just say Sangamon County. Once
    21 again, I did my work on the technical aspects. I was
    22 not involved in the contract or any other of those
    23 aspects, so I had no specific knowledge as to who the
    24 client was.
    25 Q Well, I am asking you about your perception?
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    1 A My perception would be Sangamon County.
    2 Q Okay. Did that include the State's
    3 Attorney's office?
    4 A I -- well, once again, Sangamon County, I
    5 guess it doesn't include it.
    6 Q I am sorry?
    7 A I don't get where you are going at here.
    8 Q Well, did you say it does or does not include
    9 the State's Attorney's office?
    10 A I didn't view the State's Attorney's office
    11 as our client, if that's what you are asking.
    12 Q Okay. Who did you view as your client?
    13 A I viewed Sangamon County, I guess, as our
    14 client. Once again, I had no knowledge of exactly who
    15 our client was. I just concentrated on the technical
    16 aspects.
    17 Q Did Sangamon County include the Department --
    18 the Sangamon County Department of Public Health?
    19 A I don't know.
    20 Q Did it include the site or siting review
    21 committee?
    22 A I don't know.
    23 Q Did it include the Sangamon County Board?
    24 A I don't know.
    25 (Mr. Northrup and Mr. Woodward confer briefly.)
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    1 Q (By Mr. Northrup) During Hanson's review of
    2 the application, were there any discussion regarding
    3 the merits of the application?
    4 A You know, the best answer that I could give
    5 to that is the paragraph that we have written in the
    6 summary report, because I think that summarizes our
    7 opinion on the application rather well.
    8 Q Well, prior to the actual hearings, were
    9 there --
    10 A Oh, prior to the hearings.
    11 Q Right.
    12 A Okay.
    13 Q Were there any discussions as to the merits
    14 of the application?
    15 A To the merits? I don't recall that. Once
    16 again, I concentrated on a specific area and not on
    17 all ten criteria on the report. I was only involved
    18 in one.
    19 CROSS EXAMINATION
    20 BY MR. WOODWARD:
    21 Q You testified that you could not speak to any
    22 County Board member outside the hearing. Can you tell
    23 me why you could not?
    24 A As I recall, there had been a member who had
    25 leaned over the railing and asked John a question, and
    70
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    1 that I believe that was brought up by either yourself
    2 or Mr. Northrup as, you know, wanting an explanation
    3 or something to the hearing officer. So at that point
    4 we were instructed that we should not talk at all. Of
    5 course, when the gentleman introduced himself and
    6 wanted to talk to me, I just apologized and said I am
    7 sorry, but we are not allowed to talk to the Members
    8 on the Board.
    9 Q From a perception standpoint, are you usually
    10 not allowed to talk to your client?
    11 A I don't understand the question.
    12 Q Okay. I believe you indicated that you never
    13 found out who your client was. He asked from your
    14 perception whether it included the siting review
    15 board, and you said you didn't know. So now I am
    16 asking you from normal engineering practices, are you
    17 not allowed to speak to your client?
    18 A I don't know what relevance that has here,
    19 them being our client. So I don't know what --
    20 Q I am not asking you to understand the reason
    21 for the question. I am asking you to answer the
    22 question.
    23 A I think the -- I find the question
    24 unanswerable, I guess.
    25 Q Okay. Would the fact that you could not
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    1 speak to members of the siting review board affect or
    2 help you to form a perception that the siting review
    3 board was not your client?
    4 A I don't understand what you are saying,
    5 actually.
    6 Q What factors normally go into your forming a
    7 perception of who your client is?
    8 MR. SMITH: I am going to object as to the
    9 relevancy as to Mr. Burgert's interpretation of who
    10 his client was, how that is relevant to these
    11 proceedings.
    12 MR. WOODWARD: I think that goes to the very heart
    13 of our argument of denial of fundamental due process.
    14 We have a group of engineers who have signed a
    15 contract with the County of Sangamon who have now said
    16 we never bothered to find out who our client was, so
    17 we don't know whether they engaged in improper contact
    18 or not. We don't know whether they -- their opinions
    19 were restricted solely to opinions on the record, or
    20 whether they gave them directly to -- because none of
    21 them can remember.
    22 So I am asking this gentleman to tell me what it
    23 is that forms a perception of who his client is in a
    24 normal circumstance. I am trying to find out whether
    25 he is being truthful when he says I don't know -- I
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    1 don't know who my client is, and I don't have a
    2 perception of who my client is.
    3 THE WITNESS: Can I answer?
    4 HEARING OFFICER CROWLEY: If you care to, yes.
    5 THE WITNESS: The previous answer I gave, which is
    6 the truthful answer in this case, is that I concerned
    7 myself with the technical aspects of the clay liner,
    8 the clay cover, the slopes, the surface hydrology. I
    9 was not involved in the contract negotiations. I was
    10 not involved in the request for proposal. I was not
    11 involved in any of those items. So I can't answer
    12 your questions.
    13 Q (By Mr. Woodward) As an engineer you were
    14 involved in giving expert testimony, were you not?
    15 A On the areas that I investigated.
    16 Q And as an engineer don't you have some
    17 professional ethics that restrict your ability to --
    18 restrict your abilities to do certain things when you
    19 serve as an expert witness?
    20 HEARING OFFICER CROWLEY: I am going to stop this
    21 here. This is your witness. He has answered the
    22 question you have asked him more than once.
    23 MR. WOODWARD: That's all I have.
    24 HEARING OFFICER CROWLEY: Thank you. Mr. Smith,
    25 do you have anything?
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    1 MR. SMITH: Thanks.
    2 CROSS EXAMINATION
    3 BY MR. SMITH:
    4 Q In your meeting with Chris Leadman of the
    5 Illinois Environmental Protection Agency, did Mr.
    6 Leadman express an opinion as to the merits of the
    7 application?
    8 A No, he did not. As a matter of fact, when we
    9 went into Mr. Leadman's office, he specifically told
    10 us right out before anything was said he told us that
    11 he could not express an opinion on the landfill. He
    12 could not express any opinions to us at all. That if
    13 we had some kind of historical question about when
    14 certain areas were filled, that he might be able to
    15 help us with that. But he was very specific about
    16 that.
    17 Q Mr. Northrup asked you questions concerning
    18 the conflicting nature of your testimony in
    19 relationship to Dr. Burgstrom's testimony, and that
    20 your solution may be additional site investigations.
    21 During the course of the proceedings testifying you
    22 were subject to cross-examination; isn't that true?
    23 A Yes.
    24 Q Mr. Northrup could have asked you questions
    25 about, Mr. Burgert, your findings were totally
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    1 different than what Mr. Burgstrom's are. What can we
    2 do to solve these problems. He could have asked these
    3 questions?
    4 A Yes.
    5 Q Did he ever ask you those questions?
    6 A Not to my recollection.
    7 Q Would your opinions have been different as to
    8 the merits of the application if ESG Watts was your
    9 client?
    10 A No, our findings are our findings.
    11 MR. SMITH: All right. I don't have any further
    12 questions.
    13 HEARING OFFICER CROWLEY: Mr. Northrup?
    14 MR. NORTHRUP: I have just a couple quick
    15 follow-up.
    16 REDIRECT EXAMINATION
    17 BY MR. NORTHRUP:
    18 Q When you met with Mr. Leadman, did you
    19 discuss what regulatory standards would be applicable
    20 to the review of the application?
    21 A That was not in my area. I didn't discuss
    22 that.
    23 Q Did someone discuss it at the meeting?
    24 A You know, if someone did, I don't recall it.
    25 Q If, in fact, as Mr. Smith posed, if ESG Watts
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    1 was your client, and there were deficiencies in the
    2 application, you would have told them how to fix those
    3 deficiencies, would you not?
    4 A I don't know if I could or not.
    5 Q At least you would have told them?
    6 A Pardon me?
    7 Q You would have told them where their
    8 application or where their proposal was deficient if
    9 they were your client?
    10 A Well, I guess I am confused on where this is
    11 leading. Because what I did was examine the available
    12 information --
    13 Q Well, I know, and I am not asking --
    14 A -- and compare it to theirs.
    15 Q I am not asking --
    16 A And that there is significant
    17 inconsistencies.
    18 Q It is a simple question.
    19 A I am sure it is simple.
    20 Q If ESG Watts was your client and they asked
    21 you for your technical support and services in looking
    22 at an application, and if you felt that it was
    23 deficient, you would tell them?
    24 A If they had a deficient application as far as
    25 the clay liner, the clay cover, the items that I
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    1 looked at, if they were submitting an insufficient
    2 application in those areas and I was working for them,
    3 which I wasn't, I guess I would, yes.
    4 MR. NORTHRUP: Okay. I don't have any further
    5 questions.
    6 MR. SMITH: Nothing further.
    7 HEARING OFFICER CROWLEY: Thank you very much.
    8 THE WITNESS: Thank you.
    9 (The witness left the stand.)
    10 MR. NORTHRUP: Well, I have got two more probably,
    11 you know, about the same, half an hour each, so I
    12 don't know if you want to go ahead or --
    13 HEARING OFFICER CROWLEY: Off the record.
    14 (Discussion off the record.)
    15 HEARING OFFICER CROWLEY: We are back on the
    16 record.
    17 We have determined that we will take a ten minute
    18 break at this point. We will go through lunch, so if
    19 you can find a soft drink or a cookie or something,
    20 feel free to bring it back with you. We will resume
    21 again at noon.
    22 (Whereupon a short recess was taken.)
    23 HEARING OFFICER CROWLEY: All right. We are back
    24 on the record.
    25 MR. NORTHRUP: We call Devin Moose.
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    1 (Whereupon the witness was sworn by the Notary
    2 Public.)
    3 D E V I N M O O S E,
    4 having been first duly sworn by the Notary Public,
    5 saith as follows:
    6 DIRECT EXAMINATION
    7 BY MR. NORTHRUP:
    8 Q Could you state your name for the record,
    9 please.
    10 A Devin Moose.
    11 Q And you are the director of a company called
    12 Engineering Solutions?
    13 A Yes.
    14 Q Where is that at?
    15 A Geneva, Illinois.
    16 Q And you are a geo technical engineer by
    17 training?
    18 A Civil engineering with geo technical
    19 emphasis.
    20 Q Okay. And you are familiar with the Watts
    21 siting application that is at issue in this case?
    22 A Yes.
    23 Q Okay. What role did you play in the review
    24 of that -- well, in the review of the application?
    25 A I was retained by Hanson Engineers to assist
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    1 them.
    2 Q Assist them more specifically with what?
    3 A Initially the assignment was to provide
    4 advice and provide my experiences in sitings in other
    5 cases and procedurally how a project like that is
    6 managed. And then as the work load increased, I was
    7 requested to evaluate the application versus some of
    8 the criteria.
    9 Q Now, had you ever worked on a -- or worked on
    10 a case involving siting where it was just related to
    11 an overfill?
    12 A Not only an overfill, no.
    13 Q Okay. But there were some cases that you had
    14 worked on in your prior experience that at least dealt
    15 in some fashion with an overfill?
    16 A I believe, yes.
    17 Q Okay. Was one of those the Land of Lakes
    18 facility in Romeoville?
    19 A Yes.
    20 Q Okay. And another one was in Jackson County?
    21 A Yes.
    22 Q The proceeding in Romeoville, Land of Lakes,
    23 who was your client in that case?
    24 MR. SMITH: Objection as to relevancy.
    25 MR. NORTHRUP: It is going to go to the fact that
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    1 Mr. Moose will be able to explain a little bit about
    2 the relationship between who is the client of the
    3 consultant and that type of thing.
    4 HEARING OFFICER CROWLEY: Do you have any
    5 response, Mr. Smith?
    6 MR. SMITH: Once again, either Hanson's
    7 interpretation of who their client was or Mr. Moose,
    8 as a subcontractor to Hanson Engineers, who their
    9 interpretation of the client is, is not really
    10 relevant. None of them were the decision makers.
    11 None of them had a vote in this final land site.
    12 The Sangamon County Board could have said, Hanson
    13 Engineers, you have the greatest piece of papers, but
    14 we don't buy it. We like Mr. Northrup's argument
    15 better. The fact that the County Board chose Hanson's
    16 report, it does not matter. Their opinion as to --
    17 Hanson's opinion as to who their client was is not
    18 relevant to the subject matter of this proceeding.
    19 MR. NORTHRUP: It goes to the entire heart of the
    20 argument that there has a been a breach of Watts' --
    21 or that fundamental fairness has not been followed in
    22 this case.
    23 MR. SMITH: How does who Mr. Moose represented in
    24 the Land of Lakes case have anything to do with the
    25 fundamental fairness of the hearing with the Sangamon
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    1 County?
    2 MR. NORTHRUP: Because it is going to be
    3 additional evidence in cases like this the consultant
    4 knows who their client is, knows very well who their
    5 client is, and it is either going to be the State's
    6 Attorney's office, or it is going to be the County
    7 Board. But there is none of this mishmash of, well, I
    8 guess our client is Sangamon County, and who are they,
    9 well, gee, we don't really know.
    10 HEARING OFFICER CROWLEY: I am going to sustain
    11 the relevance objection. But I will allow you to
    12 enter the testimony as an offer of proof.
    13 MR. NORTHRUP: Okay.
    14 Q (By Mr. Northrup) And in the Land of Lakes
    15 case --
    16 HEARING OFFICER CROWLEY: And please do let me
    17 know when you have finished your offer of proof, so
    18 that we can get Mr. Smith's questions in.
    19 MR. NORTHRUP: Okay.
    20 Q (By Mr. Northrup) The Land of Lakes facility,
    21 you represented the Will County State's Attorney's
    22 office?
    23 A I believe we were employed by Will County,
    24 yes.
    25 Q Wasn't it not the Will County State's
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    1 Attorney's office?
    2 A Will County was my contact for the project.
    3 The Will County State's Attorney's office was our
    4 contact.
    5 Q And in Jackson County, that was also the
    6 Jackson County State's Attorney's office?
    7 A That was our contact for that project, yes.
    8 MR. NORTHRUP: Now, would your ruling also pertain
    9 to questions on just how he determines who his client
    10 is and that type of thing?
    11 HEARING OFFICER CROWLEY: Yes.
    12 MR. NORTHRUP: Okay.
    13 Q (By Mr. Northrup) Mr. Moose, how do you
    14 define who your client is?
    15 A Sometimes it can be defined by who is paying
    16 you. Sometimes it can be defined by in a contract
    17 specifically identifying the client. Sometimes it can
    18 be defined by who your project manager is. So I think
    19 it changes a little bit depending on the type and
    20 nature of the project.
    21 MR. NORTHRUP: Okay. That's all I have on that.
    22 Thank you.
    23 HEARING OFFICER CROWLEY: Mr. Smith, did you have
    24 any cross on the offer of proof?
    25 MR. SMITH: Yes.
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    1 CROSS EXAMINATION (offer of proof)
    2 BY MR. SMITH:
    3 Q Mr. Moose, are you familiar with the Illinois
    4 Environmental Protection Act Regional Pollution
    5 Control Facility Siting in Illinois Report?
    6 A I have seen it. I don't recall it
    7 specifically.
    8 HEARING OFFICER CROWLEY: Can we have a date on
    9 that, please, Mr. Smith?
    10 MR. SMITH: It is from November 12, 1981, through
    11 December 13, 1994. The publication date is January of
    12 1995.
    13 HEARING OFFICER CROWLEY: Thank you.
    14 Q (By Mr. Smith) During that time period, there
    15 was approximately 80 applications to local governments
    16 for landfill expansions of regional pollution control
    17 type facilities, do you know?
    18 A It sounds reasonable.
    19 Q And of those 80 cases, how many were the
    20 State's Attorney's office the contacts for?
    21 A I don't recall.
    22 MR. SMITH: Okay. I don't have anything further.
    23 HEARING OFFICER CROWLEY: All right. Anything on
    24 redirect?
    25 REDIRECT EXAMINATION (offer of proof)
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    1 BY MR. NORTHRUP:
    2 Q Isn't it true that as far as identifying who
    3 the client is that that is something that is
    4 identified up front before you really begin any
    5 substantive work on a project?
    6 A Generally it is defined up front, but it can
    7 change over time. In this particular case -- and I
    8 should correct myself. In the case of Will County and
    9 Jackson County, my clients were those counties. And
    10 when I say Will County, I mean the citizens of Will
    11 County are who I hold my obligations to.
    12 My contact, my person that I report and interact
    13 with in Will County was a member of the State's
    14 Attorney's office. But I think that generally it is
    15 defined up front, and in a case like the Jackson
    16 County and Will County -- and when I say county, I am
    17 referring to the citizens of that county. I do have
    18 contacts within those, and these two cases that you
    19 cited were State's Attorney's offices.
    20 Q In a case where you represent the citizens of
    21 a county, how are their instructions or desires known
    22 to you?
    23 A Well, their instructions are funneled through
    24 my contact, which may or may not be the State's
    25 Attorney's office. And in many cases it is, but my
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    1 obligation is to a bigger purpose. It is to the
    2 people and the health, safety, welfare kind of
    3 criteria. It really goes to my obligation to the
    4 public.
    5 Q But you would agree that this concept of the
    6 fact that you represent the county has to be funneled
    7 through some elected official, like the State's
    8 Attorney's office or --
    9 A No, I don't agree with that.
    10 Q So how do you -- so then do you make the
    11 decision what is best for the citizens of that county?
    12 A No, not in the respect of who I report to.
    13 Q Okay. Well, who makes that decision then?
    14 A That is usually a decision that is made
    15 within the unit of government who is going to be the
    16 project leader for that particular project.
    17 HEARING OFFICER CROWLEY: Which may or may not be
    18 an elected official?
    19 THE WITNESS: That's correct.
    20 Q (By Mr. Northrup) So in a situation like
    21 that, the citizens are somewhat separate and apart
    22 from the decision maker, correct?
    23 A I think your question was in a decision like
    24 that -- you would have to be more specific. Can you
    25 tell me --
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    1 Q Well, in a case where you were working under
    2 the impression that, you know, you are representing
    3 the citizens of a county, the final decision on
    4 whether or not a facility gets sited does not rest
    5 with the citizens, it rests with the County Board or
    6 whatever other entity the statute may require?
    7 A Well, I think that was a pretty broad
    8 question. One, I don't think I represent the
    9 citizens. I work on behalf of the citizens. They may
    10 be my client. So I guess the way the question was
    11 phrased about me representing the citizens is really
    12 not what I meant to impart in my responses.
    13 MR. NORTHRUP: Okay. That's it for me.
    14 HEARING OFFICER CROWLEY: That concludes the offer
    15 of proof?
    16 MR. SMITH: Yes. I don't have any questions.
    17 HEARING OFFICER CROWLEY: Fine.
    18 Q (By Mr. Northrup) Okay. So you were a
    19 subconsultant to Hanson Engineers in this case?
    20 A Correct.
    21 Q Okay. At some point in the -- when were you
    22 brought in to the project?
    23 A I don't recall the date. It was sometime, I
    24 believe, after the application was filed.
    25 Q Okay. Were you at some point during your
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    1 work in the case advised that Hanson had done prior
    2 work for ESG Watts?
    3 A I became aware of it at some point.
    4 Q Do you recall how you became aware of that?
    5 A It was probably a meeting that was held
    6 within Hanson's Engineering office where it -- where I
    7 became aware that there was knowledge about the
    8 Springfield site, and without specifics I remember
    9 arriving at the conclusion that I was informed, well,
    10 we worked on that site, we, meaning Hanson.
    11 Q During your involvement in the project, did
    12 you meet with anyone from the Illinois EPA?
    13 A Yes.
    14 Q Who was that?
    15 A Chris Leadman.
    16 Q Was this meeting the one that has been
    17 discussed by other witnesses this morning?
    18 A It appears as so, yes.
    19 Q Okay. At that meeting -- there was no
    20 representatives from ESG Watts at the meeting,
    21 correct?
    22 A No, not to my recollection.
    23 Q Do you know if ESG Watts was advised that
    24 that meeting was going to take place?
    25 A They may have been.
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    1 Q Did you have any knowledge that they were?
    2 A We were at the landfill facility immediately
    3 prior to going to the IEPA. We toured the landfill
    4 facility with representatives of Watts. I would be
    5 surprised that they were not aware that we were going
    6 to the IEPA from that location, but I don't recall
    7 specific conversations.
    8 Q Okay. When you were at the meeting with
    9 Chris Leadman was the issue of what regulatory
    10 standards would be applicable in the review discussed?
    11 A They may have been.
    12 Q What do you recall about those discussions,
    13 if anything?
    14 A I don't recall, other than in a general way,
    15 much about the discussions. We were there to get
    16 historical information on the facility, to fill in
    17 missing data gaps, to find the status of certain
    18 documents that we did not retrieve at our FOIA. And
    19 the specifics of the conversation I don't recall
    20 precisely.
    21 Q During the pendency of the project, were you
    22 ever asked to provide or devise any engineering
    23 alternatives to the removal of the waste?
    24 A I am not sure -- I will have to ask you to
    25 repeat the question. But as far as devising
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    1 engineering alternatives for removal of the waste, in
    2 my opinion, no, we were not asked to devise that. And
    3 the second qualifier or the first one that you asked,
    4 I don't recall what that was.
    5 Q Well, it was during the pendency of the
    6 proceeding, were you ever asked to provide any
    7 engineering alternatives or devise to the removal of
    8 the waste?
    9 A We did not devise any. Alternatives were
    10 discussed.
    11 Q Did you testify at the hearing?
    12 A No.
    13 Q Do you recall any of those alternatives ever
    14 being discussed at the hearing?
    15 A I don't recall precisely what was discussed
    16 at the hearings that I attended.
    17 Q All right. Are you aware that those
    18 alternatives were presented in any fashion to the
    19 siting review committee?
    20 A I am not aware whether they were or they
    21 weren't.
    22 Q During the review process, did you meet with
    23 any members of the Sangamon County Board?
    24 A No.
    25 Q Did you meet with any members of the siting
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    1 review committee?
    2 A No.
    3 Q Did you meet with any members of the -- or
    4 employees of the Sangamon County Department of Public
    5 Health?
    6 A Yes.
    7 Q Who is that?
    8 A I do not recall their names.
    9 Q Okay.
    10 A They attended the landfill tour with us, and
    11 there was a site inspector from Sangamon County that
    12 was familiar with the site. There may have been more
    13 than one.
    14 Q Other than that individual, anybody else?
    15 A Not to my recollection, meetings. There were
    16 social exchanges between Mr. Stone and myself during
    17 the hearings, but I don't recall any meetings with
    18 anybody else.
    19 Q Never any substantive discussion of the
    20 application?
    21 A No to my recollection, no.
    22 Q Okay. During the review process, did you
    23 meet with anyone from the Sangamon County State's
    24 Attorney's office?
    25 A Yes.
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    1 Q Who would that have been?
    2 A Mr. Smith.
    3 Q Did you discuss the substance of the
    4 application?
    5 A Yes.
    6 Q How many times would you have -- do you
    7 recall meeting with Mr. Smith?
    8 A My recollection is that it would have been
    9 between five and ten.
    10 Q At any of those meetings was the testimony of
    11 Hanson employees discussed, the potential testimony of
    12 Hanson employees?
    13 A My recollection is that, yes, it would have
    14 been.
    15 Q Okay. On how many occasions, if you recall?
    16 A I don't recall.
    17 Q You did attend some of the hearing yourself;
    18 is that correct?
    19 A Yes.
    20 Q Would you from time to time communicate with
    21 Mr. Smith questions that you felt would be appropriate
    22 to be asked of the witnesses?
    23 A Yes.
    24 Q Do you have any idea on how many occasions
    25 that occurred?
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    1 A No.
    2 Q Okay. Would Mr. Smith ask those questions?
    3 A Occasionally.
    4 Q Okay. But not always?
    5 A Not always.
    6 Q Based upon your participation in the process,
    7 do you have an understanding as to who Hanson's client
    8 was in this matter?
    9 A My understanding is it would have been
    10 Sangamon County.
    11 Q And would that include -- would Sangamon
    12 County include the Sangamon County Board?
    13 A To the extent that they are citizens of
    14 Sangamon County, yes.
    15 Q How about the siting review committee?
    16 A The same answer.
    17 Q How about the State's Attorney's office?
    18 A The same answer.
    19 Q And the Department of Public Health?
    20 A The same answer.
    21 (Mr. Northrup and Mr. Woodward confer briefly.)
    22 Q (By Mr. Northrup) Is it your belief that a
    23 siting application -- or a siting request can be
    24 judged just on the application itself?
    25 A If there are -- if it is a prima facie case
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    1 and there is no testimony it may be necessary, but
    2 generally my understanding is that the application
    3 needs to be evaluated based on the record, and the
    4 record includes the application testimony, written
    5 comments, and all information that is in the record.
    6 CROSS EXAMINATION
    7 BY MR. WOODWARD:
    8 Q Did you give a deposition in this matter on
    9 May 13th, 1998?
    10 A I believe sometime back in May I did. I
    11 don't recall the date.
    12 Q Now, as to your meeting with Chris Leadman,
    13 was that part of the substantive questions placed to
    14 you during the course of your application, what the
    15 substance of that meeting was?
    16 A I am not aware of any application that -- I
    17 don't understand the question.
    18 Q I am talking about during the course of your
    19 deposition, was the substance of the meeting with
    20 Chris Leadman, was that placed -- do you recall that
    21 being placed to you?
    22 A No, I don't recall the substance of the
    23 deposition.
    24 MR. WOODWARD: May I approach the witness.
    25 MR. SMITH: I would object to him handing him the
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    1 deposition and asking him -- to direct questions to
    2 him concerning the questions that were asked to see if
    3 his recollection needs to be refreshed by looking at
    4 the deposition.
    5 MR. WOODWARD: Fine.
    6 Q (By Mr. Woodward) Do you recall a question
    7 being asked of you, do you recall any discussions
    8 about what regulations would be applicable in the
    9 review of the application?
    10 A Not specifically, no.
    11 Q Okay. Do you recall giving an answer just
    12 generally, generally I think this was our opinion
    13 based upon our experience in numerous other sites in
    14 Illinois. My recollection is the siting application
    15 itself referred to compliance with these regulations
    16 in this format and a meeting was held at the IEPA with
    17 the permit reviewer at the time, Chris Leadman, who I
    18 think concurred with the analysis or the regulatory
    19 structure that a facility would be governed under?
    20 A I don't recall, no.
    21 MR. WOODWARD: Okay. Now may I approach the
    22 witness.
    23 HEARING OFFICER CROWLEY: Yes.
    24 Q (By Mr. Woodward) Is that a transcript of
    25 your deposition?
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    1 A I have no idea. I requested a right to
    2 review these transcripts, and I was not really given
    3 the opportunity to do so.
    4 MR. SMITH: I would object to the use of this
    5 deposition. One, it has not been marked in any type
    6 of exhibit and, two, he has not laid the proper
    7 foundation.
    8 MR. WOODWARD: Could you mark this, please.
    9 (Whereupon said document was duly marked for
    10 purposes of identification as Petitioner's Exhibit
    11 4 as of this date.)
    12 HEARING OFFICER CROWLEY: That was the deposition
    13 of Devin Moose from what date, please?
    14 MR. WOODWARD: May 13th, 1998.
    15 HEARING OFFICER CROWLEY: Thank you.
    16 Q (By Mr. Woodward) I am handing you what has
    17 been marked as Petitioner's Exhibit Number 4.
    18 A Yes.
    19 Q Is that your deposition transcript?
    20 A It appears to be one, but I am not sure it is
    21 true and accurate.
    22 Q As to page 31, starting with line 3, and
    23 going to page 32, line 5, would you review that,
    24 please?
    25 A (Witness complied.) Okay.
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    1 Q Now, do the lines -- do the pages and lines
    2 that I have indicated deal with discussion of the
    3 regulations identified as 814, Subpart C?
    4 A They -- no.
    5 Q Up here?
    6 A Well, yes, it covers a lot of things.
    7 Q Okay. Now, back down on line 22, when it
    8 says this was our -- line 21 and 22, where it says,
    9 this was our opinion, are you talking about 814
    10 Subpart C is applicable regulations?
    11 A I am responding to the question that is just
    12 above it.
    13 Q Okay. What is your opinion then at that
    14 point? Is it that --
    15 A My opinion --
    16 MR. SMITH: Hold it. Excuse me, Devin. I am
    17 going to object. One, it is not proper impeachment.
    18 Two, he has not laid the foundation for the document
    19 in front him. It is not improper impeachment, if that
    20 is what he is attempting to do.
    21 Q (By Mr. Woodward) Well, after reading that,
    22 is that -- were those pages and lines?
    23 HEARING OFFICER CROWLEY: Sustained. I will let
    24 you try to --
    25 MR. WOODWARD: I assumed she was sustaining. I am
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    1 sorry.
    2 HEARING OFFICER CROWLEY: That's all right.
    3 Q (By Mr. Woodward) As to the pages and lines
    4 that I directed your attention to, is that an accurate
    5 transcription of your deposition testimony?
    6 A No, I don't accept that. I specifically
    7 requested the right to review my transcript, and I was
    8 denied the right.
    9 Q You are now being given that opportunity to
    10 review those particular pages and lines, and is that
    11 an accurate transcription?
    12 A I have no way of -- this is six months later
    13 or seven months later. I can't recall precisely what
    14 I said seven months ago.
    15 MR. WOODWARD: Okay. I will go at this a
    16 different way.
    17 Q (By Mr. Woodward) Before you met with Chris
    18 Leadman, did you have an opinion as to what applicable
    19 regulations applied to the application of ESG Watts
    20 for siting approval at the Sangamon Valley landfill?
    21 MR. SMITH: I am going to object as to the
    22 relevancy, what Mr. Moose's opinion as to what the
    23 regulations implied. It could have been matters of
    24 record. They could have called him as potential
    25 witness at the landfill trial if they so desired. We
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    1 are getting outside the scope of what criteria was
    2 required. They are only supposed to be as to matters
    3 of record, and not to go outside.
    4 MR. WOODWARD: I am not asking this for the
    5 purpose of establishing what standards do apply. I am
    6 asking this for the purpose of determining whether he
    7 did have an opinion as to what standards apply before
    8 he met with Chris Leadman. He now has indicated that
    9 he does not recall the substance of that meeting, and
    10 I am going to try to reach what his recollection is a
    11 different way from the transcript.
    12 MR. SMITH: I would object as to what relevancy,
    13 whether he had an opinion as to whether 814 Subpart C,
    14 Subpart D, or 811 apply. It is the final -- the
    15 County Board made a determination of what regulations
    16 should apply or shouldn't apply, and that's the issue,
    17 not Mr. Moose's.
    18 MR. WOODWARD: I believe a part of our objection
    19 is that the meeting with Chris Leadman was an ex parte
    20 communication that we should have been notified of and
    21 had the right to attend, and if a discussion of what
    22 applicable standards were going to be made applicable
    23 to our application that we would have input into that
    24 at that time.
    25 Now, that is particularly relevant to the issue of
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    1 denial of due process. You can go all you want to
    2 about we didn't ask it at the hearing, but the issue
    3 of denial of due process was objected to at the
    4 hearing, and we were told that if we wanted to pursue
    5 it, we would have to hire other counsel, pay -- I
    6 mean, pay for the other counsel, which was not a
    7 proper response to that objection.
    8 Now, I think we have a right to pursue this when
    9 this is the hearing -- this hearing is specifically to
    10 establish a record as to whether there was a denial of
    11 due process.
    12 MR. SMITH: In response, I would refer the Hearing
    13 Officer to the petition for hearing. Nowhere in any
    14 of the allegations that are alleged in the petition
    15 that there was improper contact with members of the
    16 Environmental Protection Agency. So now we are even
    17 outside the scope of the petition for hearing.
    18 Nowhere do they allege that there was improper contact
    19 between anybody and the Environmental Protection
    20 Agency.
    21 MR. NORTHRUP: Well, first of all, that petition
    22 reserves our right to bring up whatever other issues
    23 we happen to come across. And the first time we
    24 learned about this meeting was in the deposition of
    25 Mr. Yankey back in May. So we are following up.
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    1 There is no issue that we waived this. We didn't know
    2 about it until we had to depose the Hanson people.
    3 HEARING OFFICER CROWLEY: I will allow the
    4 questions. I am not sure of the relevance at this
    5 point. I will give you some latitude and let you ask
    6 the question, and then we will see where we go.
    7 Q (By Mr. Woodward) At the time you met with --
    8 I believe the question is -- rather than having you
    9 read it back, I will restate it.
    10 The question is, at the time that you met with
    11 Chris Leadman, did you have an opinion as to what
    12 regulatory standards were applicable to the
    13 application of ESG Watts, Inc., for local siting
    14 approval for the Sangamon Valley landfill?
    15 A My recollection is that I had an
    16 understanding of what regulatory structure it was
    17 governed under, but I had not at that time done an
    18 analysis on my own.
    19 Q Was your understanding that the regulatory
    20 structure was Part 814, Subpart C?
    21 A That was the understanding that I was working
    22 under at that time.
    23 Q Okay. In your meeting with Chris Leadman,
    24 was that issue discussed?
    25 A I don't recall specifically.
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    1 Q You don't recall ever making a statement that
    2 Chris Leadman concurred in that analysis?
    3 A Not in the context in which you just
    4 presented it. That's not consistent with the context
    5 of that accurate or inaccurate testimony that you got
    6 in front of you. It is generally, to the best of my
    7 recollection type qualifiers, and the general
    8 understanding of the regulatory structure that I was
    9 working with at that time came from the siting
    10 application which said that Subpart C were the
    11 regulations that it was governed under.
    12 HEARING OFFICER CROWLEY: And that's 35 Illinois
    13 Administrative Code, Part 814.
    14 THE WITNESS: Correct.
    15 MR. WOODWARD: I have no further questions.
    16 HEARING OFFICER CROWLEY: Mr. Smith?
    17 CROSS EXAMINATION
    18 BY MR. SMITH:
    19 Q Mr. Moose, you indicated that you worked for
    20 Environmental Solutions?
    21 A Engineering Solutions.
    22 Q Sorry. Engineering Solutions. Is that a
    23 subsidiary of Geo Tech?
    24 A Envirogen.
    25 Q Does either Engineering Solutions or
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    1 Envirogen currently have a contract with ESG Watts to
    2 perform work at the Sangamon Valley Landfill?
    3 A Yes, we do.
    4 Q Did you get permission from the County of
    5 Sangamon before entering into this agreement with ESG
    6 Watts to work for --
    7 MR. NORTHRUP: I will object. What is the
    8 relevance?
    9 MR. SMITH: They brought out issues of Hanson
    10 Engineering and the normal practice of asking your
    11 former clients if it is okay to work for your current
    12 clients. I am going to show that their own engineers,
    13 they didn't do the same courtesy.
    14 MR. NORTHRUP: In the context of the siting --
    15 HEARING OFFICER CROWLEY: If you care to -- the
    16 objection is sustained. If you care to do it, it
    17 would be as an offer of proof.
    18 MR. SMITH: I will make an offer of proof.
    19 THE WITNESS: What is the question pending? I am
    20 sorry.
    21 Q (By Mr. Smith) Did either Engineering
    22 Solutions or Envirogen seek permission or inform the
    23 County of Sangamon that you were then going to be
    24 working on the ESG Watts application to try to get
    25 approval for this overfill?
    102
    KEEFE REPORTING COMPANY
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    1 A No.
    2 Q Did you ask Hanson Engineers or advise Hanson
    3 Engineers that either Engineering Solutions or
    4 Envirogen was going to be working for ESG Watts in
    5 relationship to the application that had previously
    6 been pending before the Sangamon County Board?
    7 A There was an attempt to reach Hanson
    8 Engineering to let them know, and our efforts at
    9 contacting one another were not successful.
    10 HEARING OFFICER CROWLEY: I am sorry? Your
    11 efforts --
    12 THE WITNESS: Efforts at contacting one another
    13 were not successful.
    14 Q What attempts did you make?
    15 A I placed phone calls to George Jamison. He
    16 was at the time out of the office on an extended
    17 trial. And enough time had gone by between phone
    18 calls that we just never connected. At the time it
    19 had been six or seven months since I heard anything
    20 from anybody relative to the project. And I was
    21 unaware that there was litigation going on. So I
    22 thought the project was over, done and closed.
    23 So Watts actually approached me and asked to get
    24 a -- asked us to get involved in their Taylor Ridge
    25 facility, and we moved down to also come up with some
    103
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    1 plans for Sangamon Valley. I did not feel comfortable
    2 calling the County, because I did not want to end run
    3 my client. My client was Hanson. And I thought it
    4 was inappropriate for me to call Hanson's client.
    5 Q Did you follow-up your unanswered phone calls
    6 with a letter?
    7 A No, I did not.
    8 Q Do you know the fax number for Hanson
    9 Engineers?
    10 A I don't recall, but I am sure I have it
    11 available.
    12 Q Could you fax things to them during the
    13 course of the proceedings?
    14 A Sure.
    15 MR. SMITH: I don't have anything further on the
    16 offer of proof.
    17 HEARING OFFICER CROWLEY: Any cross on the offer
    18 of proof?
    19 CROSS EXAMINATION
    20 BY MR. NORTHRUP:
    21 Q Have you attempted to meet with any
    22 representatives of Sangamon County on the Sangamon
    23 Valley Landfill?
    24 A Yes.
    25 Q And has the County responded to those
    104
    KEEFE REPORTING COMPANY
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    1 requests?
    2 A Responded? They have met with us, yes.
    3 MR. NORTHRUP: No further questions.
    4 Q (By Mr. Smith) When you --
    5 HEARING OFFICER CROWLEY: That ends the offer of
    6 proof?
    7 MR. SMITH: That's correct. I am sorry.
    8 Q (By Mr. Smith) When you took a tour of the
    9 landfill facility with the representative from the
    10 Sangamon County Department of Public Health, were
    11 there any County Board Members present?
    12 A No.
    13 Q Was there any members of the siting review
    14 committee present?
    15 A No.
    16 Q Did you attend all of the meetings of the
    17 siting review committee?
    18 A No.
    19 Q Did you attend the final County Board meeting
    20 in which the resolution was discussed?
    21 A No.
    22 Q You indicated that occasionally you asked --
    23 you handed questions to be asked that were not asked
    24 of the witnesses. Do you recall that statement?
    25 A Yes.
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    1 Q Okay. Were there any questions that were not
    2 asked that changed the recommendations to Hanson, your
    3 client?
    4 A I didn't make any recommendations.
    5 Q 39.2 indicates that an applicant shall file
    6 a -- excuse me. 415 ILCS 5/39.2(c) of the
    7 Environmental Protection Act says, an applicant shall
    8 file a copy of its request, with the County Board of
    9 the county or the governing body of the municipality
    10 in which the proposed site is located. The request
    11 shall include (1) the substance of the applicant's
    12 proposal and (2) all documents, if any, submitted as
    13 of that date to the Agency pertaining to the proposed
    14 facility, except trade secrets.
    15 Mr. Northrup earlier asked you is it possible just
    16 to decide the case alone on the application itself.
    17 Do you recall that question?
    18 A Yes.
    19 Q Doesn't the statute require more than just an
    20 application? You have to submit all documents that
    21 were submitted pertaining --
    22 MR. NORTHRUP: Objection. The statute speaks for
    23 itself.
    24 Q (By Mr. Smith) -- pertaining to the proposed
    25 facility?
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    1 HEARING OFFICER CROWLEY: The statute speaks for
    2 itself.
    3 Q (By Mr. Smith) During the course of this
    4 siting application, did Hanson's have to file a
    5 Freedom of Information Act request with the
    6 Environmental Protection Agency?
    7 A Hanson did file a Freedom of Information
    8 request to obtain additional information, that is
    9 correct.
    10 Q Three boxes of information -- approximately
    11 three banker boxes of information was retained from
    12 the Agency that was not included in the original
    13 application?
    14 A My recollection is that it was more than
    15 that, but it was certainly a substantial amount of
    16 information.
    17 Q And those documents were necessary for Hanson
    18 to --
    19 MR. NORTHRUP: Objection. He seems to be going to
    20 the merits of the application.
    21 MR. SMITH: Mr. Northrup asked questions
    22 concerning how can you decide -- can you just decide
    23 the case on the application alone. I am expanding
    24 that you need more. Hanson needed more than what was
    25 filed.
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    1 HEARING OFFICER CROWLEY: I will overrule the
    2 objection. Go ahead.
    3 THE WITNESS: In my opinion, additional
    4 information was necessary in order to evaluate the
    5 application.
    6 MR. SMITH: All right. I don't have anything
    7 further.
    8 HEARING OFFICER CROWLEY: All right. Thank you
    9 very much, Mr. Moose.
    10 THE WITNESS: You are welcome.
    11 (The witness left the stand.)
    12 HEARING OFFICER CROWLEY: Can we go off the record
    13 for just a second.
    14 (Discussion off the record.)
    15 MR. NORTHRUP: We now call Jim Stone.
    16 (Whereupon the witness was sworn by the Notary
    17 Public.)
    18 J A M E S S T O N E,
    19 having been first duly sworn by the Notary Public,
    20 deposeth and saith as follows:
    21 DIRECT EXAMINATION
    22 BY MR. NORTHRUP:
    23 Q Could you state your name for the record,
    24 please.
    25 A James Stone.
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    1 Q And you are the Director of the Sangamon
    2 County Department of Public Health?
    3 A That's correct.
    4 Q You held that position since at least
    5 December of 1996?
    6 A Yes.
    7 Q You are familiar with the siting proceeding
    8 that we have all been talking about?
    9 A Yes.
    10 Q Can you describe for me the role that your
    11 department played in this matter?
    12 A In the County's ordinance regarding the
    13 siting process, the Health Department is listed as --
    14 this is not verbatim -- its role is to assist the
    15 committee, the siting committee in getting whatever
    16 would be necessary to go through the process. I spent
    17 time basically getting conference rooms, making sure
    18 documents were at meetings, as needed, arranging
    19 schedules, things of that nature.
    20 Q Okay. We have talked a lot about the siting
    21 review committee. Can you explain exactly what that
    22 is and who makes it up?
    23 A The siting review committee consists of the
    24 County Board Solid Waste & Management Planning
    25 Committee plus the County Board Chairman acting as
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    1 chair of the siting committee.
    2 Q And that is the committee that all of the
    3 hearings were before?
    4 A That's correct.
    5 Q Would you from time to time have occasion to
    6 interpret the siting ordinance?
    7 A It depends on how you say interpret. I
    8 looked at the ordinance as far as the deadlines were
    9 concerned and the time frames, things of that nature.
    10 As far as to the merit of the application or the case
    11 if front of us, I would not see that as the definition
    12 of the interpretation, no.
    13 Q With respect to the deadlines and the time
    14 frames and all of that, would you from time to time
    15 call upon the State's Attorney for advice?
    16 A I did after reviewing the ordinance. Any
    17 time I looked at the deadline, I tried to confirm with
    18 Mr. Smith whether or not I was correct in that
    19 interpretation.
    20 Q Okay. On those occasions when you would call
    21 upon the State's Attorney, Mr. Smith, did these occur
    22 both prior to the beginning of the hearings and during
    23 the actual hearing process?
    24 A Actually, the whole issue of deadlines I
    25 believe we dealt with before the hearings actually
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    1 began. Because it was, again, my best recollection of
    2 the ordinance, it is kind of like a clock starts
    3 ticking when the application is filed. And all of the
    4 deadlines then start to kind of fall in domino affect
    5 based on that, and based on when the hearings are
    6 first held.
    7 Q Would the siting committee meet periodically
    8 throughout this process?
    9 A They did.
    10 Q Okay. Were you present at those meetings?
    11 A Some of them.
    12 Q Okay. At the meetings that you were present,
    13 was Mr. Smith present?
    14 A He may have been.
    15 Q Do you ever recall at any of the meetings
    16 that you attended the committee asking specific
    17 questions of Mr. Smith?
    18 A Specific questions?
    19 Q Regarding the ordinance or the process, that
    20 type of thing?
    21 A I think there was some discussion, yes, about
    22 the process of what they had to do to go through the
    23 siting, because it was new to everyone.
    24 Q Okay. And do you recall Mr. Smith responding
    25 to those questions?
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    1 A I don't recall any specific response, no.
    2 Q No, but did he respond?
    3 A If he was in the meeting and the County Board
    4 asked him a question he probably responded. Whether
    5 or not he said anything, I don't know.
    6 Q Okay. Did you ever request the State's
    7 Attorney's office to file a formal appearance on
    8 behalf of the Department of Public Health?
    9 A No, not to my knowledge.
    10 Q Okay. Other than the siting review committee
    11 meetings, and during throughout this process, do you
    12 ever recall the State's Attorney's -- the State's
    13 Attorney either formally or informally advising the
    14 committee on matters related to the ordinance, the
    15 siting ordinance?
    16 A I don't remember any specific advice, no.
    17 MR. NORTHRUP: Those are all of the questions I
    18 have.
    19 HEARING OFFICER CROWLEY: All right. Thank you.
    20 Mr. Smith?
    21 MR. SMITH: No questions.
    22 (The witness left the stand.)
    23 MR. NORTHRUP: The petitioner rests, I guess.
    24 HEARING OFFICER CROWLEY: I don't believe that you
    25 have moved any of the exhibits that we have marked.
    112
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    Belleville, Illinois

    1 MR. NORTHRUP: I was not sure if I needed to or
    2 with the stipulation up front that they are part of
    3 the record.
    4 HEARING OFFICER CROWLEY: Petitioner 1 through 3
    5 have been stipulated to. If you are moving them, we
    6 will enter them as marked.
    7 MR. NORTHRUP: Okay.
    8 HEARING OFFICER CROWLEY: Exhibit Number 4 was
    9 marked.
    10 MR. NORTHRUP: I would offer 1 through 3 that we
    11 stipulated up front and then also, though, there was
    12 the additional --
    13 MR. SMITH: The offer of proof.
    14 MR. NORTHRUP: What was the other document?
    15 MR. SMITH: The RFP.
    16 MR. NORTHRUP: Yes, the RFP, which I think you
    17 also said that you didn't have a problem with, that I
    18 didn't have a copy of.
    19 MR. SMITH: I don't have a problem with that.
    20 MR. NORTHRUP: It is actually 1 through 3.
    21 HEARING OFFICER CROWLEY: And then 5.
    22 (Whereupon said documents were entered into
    23 evidence as Petitioner's Exhibits 1 through 3 as
    24 of this date.)
    25 MR. WOODWARD: On Number 5 we will obtain a copy
    113
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    1 and submit to Mr. --
    2 HEARING OFFICER CROWLEY: If Mr. Smith can give me
    3 a copy, I will copy it and give it to you guys.
    4 MR. SMITH: I was looking for it. I didn't bring
    5 my whole filing cabinet full of stuff. I don't have
    6 it with me right now.
    7 MR. NORTHRUP: Do we need to do a schedule while
    8 we are here on the record, as far as briefs?
    9 HEARING OFFICER CROWLEY: Let's go off the record
    10 for a moment.
    11 (Discussion off the record.)
    12 HEARING OFFICER CROWLEY: We are back on the
    13 record.
    14 Off the record we have been discussing the
    15 briefing schedule. First, I would ask, does anyone
    16 care to make closing arguments here or do you want to
    17 reserve them for briefs.
    18 MR. NORTHRUP: I will reserve for briefs.
    19 MR. SMITH: I will just reserve.
    20 HEARING OFFICER CROWLEY: Okay. Fine. The
    21 briefing schedule that we have agreed on is based not
    22 on the February 28th, 1999 due date that I currently
    23 show, but on a June 30th, 1998 due date. We will be
    24 receiving a written separate waiver on that shortly,
    25 correct, Mr. Northrup?
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    1 MR. NORTHRUP: Yes.
    2 HEARING OFFICER CROWLEY: So based on a June 30th,
    3 1999 due date, the petitioner's brief is due January
    4 25th, 1999. The respondent's brief is due February
    5 16th, 1999. And any reply brief the petitioner may
    6 chose to file would be due March 2nd, 1999.
    7 The only matter left over is that we have to get a
    8 copy of Petitioner's Exhibit Number 5 to mark and get
    9 to everyone. And I think that takes care of
    10 everything that we have here.
    11 All right. Do you have anything additional, Mr.
    12 Northrup?
    13 MR. NORTHRUP: No, I believe that's it, Your
    14 Honor.
    15 HEARING OFFICER CROWLEY: Mr. Smith?
    16 MR. SMITH: No.
    17 HEARING OFFICER CROWLEY: Okay. Fine. At this
    18 point we will adjourn the hearing in PCB 98-2. We had
    19 noticed that we were going to begin the hearing in AC
    20 98-4 immediately upon conclusion of 98-2 hearing.
    21 We will reconvene at 2:00 and open that hearing at
    22 that point. Thank you.
    23 MR. NORTHRUP: Thank you.
    24 (Whereupon said document was duly marked at a
    25 later time after the hearing for purposes of
    115
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    Belleville, Illinois

    1 identification, and was entered into evidence as
    2 Petitioner's Exhibit 5 as of this date.)
    3 (Exhibits were retained by Hearing Officer
    4 Crowley.)
    5
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    116
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    1 STATE OF ILLINOIS )
    ) SS
    2 COUNTY OF MONTGOMERY)
    3
    4 C E R T I F I C A T E
    5
    6 I, DARLENE M. NIEMEYER, a Notary Public in and for
    7 the County of Montgomery, State of Illinois, DO HEREBY
    8 CERTIFY that the foregoing 116 pages comprise a true,
    9 complete and correct transcript of the proceedings
    10 held on the 7th of December A.D., 1998, at 600 South
    11 Second Street, Third Floor Conference Room,
    12 Springfield, Illinois, in the case of ESG Watts, Inc.
    13 v. Sangamon County Board, in proceedings held before
    14 the Honorable Kathleen Crowley, Hearing Officer, and
    15 recorded in machine shorthand by me.
    16 IN WITNESS WHEREOF I have hereunto set my hand and
    17 affixed my Notarial Seal this 14th day of December
    18 A.D., 1998.
    19
    20
    Notary Public and
    21 Certified Shorthand Reporter and
    Registered Professional Reporter
    22
    CSR License No. 084-003677
    23 My Commission Expires: 03-02-99
    24
    25
    117
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