1
1 ILLINOIS POLLUTION CONTROL BOARD
2 IN THE MATTER OF: )
)
3 AMENDMENTS TO REQUIREMENTS ) R97-29
FOR LANDSCAPE WASTE COMPOST ) (Rulemaking - Land)
4 FACILITIES, 35 ILL. ADM. )
CODE 830.203(c) 831.107, )
5 AND 831.109(b)(3) )
6
7 The following is the transcript of a
8 hearing held in the above-entitled matter, taken
9 stenographically by Caryl L. Hardy, CSR, a notary
10 public within and for the County of Cook and State
11 of Illinois, before Richard McGill, Hearing Officer,
12 at 100 West Randolph Street, Room 9-040, Chicago,
13 Illinois, on the 7th day of August 1998, A.D.,
14 commencing at the hour of approximately 10:10 a.m.
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L.A. REPORTING (312) 419-9292
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1 PRESENT:
2 HEARING TAKEN BEFORE:
ILLINOIS POLLUTION CONTROL BOARD
3 100 West Randolph Street
Suite 11-500
4 Chicago, Illinois 60601
(312) 814-6983
5 BY: MR. RICHARD R. McGILL, JR.
6
ILLINOIS POLLUTION CONTROL BOARD MEMBERS PRESENT:
7
Ms. Kathleen Hennessey
8 Ms. Marili McFawn
Mr. Anand Rao
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10 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY MEMBERS
PRESENT:
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Mr. Edwin C. Bakowski, P.E.
12 Ms. Judith S. Dyer
Ms. Joyce Munie, P.E.
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L.A. REPORTING (312) 419-9292
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1 I N D E X
2 Page
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GREETING BY HEARING OFFICER. . . . . . . . . . . . 4
4 GREETING BY MS. HENNESSEY. . . . . . . . . . . . . 4
GREETING BY MS. McFAWN . . . . . . . . . . . . . . 4
5 TESTIMONY BY SUSAN GARRETT . . . . . . . . . . . . 12
TESTIMONY BY EDWIN BAKOWSKI, P.E.. . . . . . . . . 14
6 TESTIMONY BY JOYCE MUNIE, P.E. . . . . . . . . . . 22
QUESTION & ANSWER SESSION. . . . . . . . . . . . . 28
7 TESTIMONY BY JOY HINZ. . . . . . . . . . . . . . . 43
QUESTION & ANSWER SESSION. . . . . . . . . . . . . 46
8 TESTIMONY BY CHARLIE PICK. . . . . . . . . . . . . 47
QUESTION & ANSWER SESSION. . . . . . . . . . . . . 54
9 TESTIMONY BY DR. RENUKA DESAI. . . . . . . . . . . 58
TESTIMONY BY JEFFREY GEISS . . . . . . . . . . . . 59
10 QUESTION & ANSWER SESSION. . . . . . . . . . . . . 61
TESTIMONY BY SUSAN FRANZETTI . . . . . . . . . . . 65
11 QUESTION & ANSWER SESSION. . . . . . . . . . . . . 67
CLOSING COMMENTS BY HEARING OFFICER. . . . . . . . 69
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E X H I B I T S
15 Marked for
Identification
16
Hearing Exhibit No. 46. . . . . . . . . . . . . . 19
17 Hearing Exhibit No. 47. . . . . . . . . . . . . . 21
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L.A. REPORTING (312) 419-9292
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1 MR. McGILL: Let's go on the record.
Good morning. My name is Richard McGill, and I
2 have been appointed by the Illinois Pollution
Control Board to serve as hearing officer in this
3 rulemaking proceeding entitled In The Matter Of:
Amendments to Requirements for Landscape Waste
4 Compost Facilities, 35 Illinois Administrative Code
830.203(c) 831.107, and 831.109(b)(3). The docket
5 number for this rulemaking is R97-29, and today is
the third hearing.
6 Also present today on behalf of the board is
Kathleen Hennessey, to my left, the board member
7 assigned to this rulemaking.
MS. HENNESSEY: Good morning.
8 MR. McGILL: To her left, board member Marili
McFawn.
9 MS. McFAWN: Good morning.
MR. McGILL: And to my right, from the board's
10 technical unit, Anand Rao.
By way of background, in May of 1997 -- excuse
11 me.
(Brief pause.)
12 MR. McGILL: In May of 1997, the proponents,
Dr. Renuka Desai and Susan Garrett, filed a proposal
13 with the board to amend 35 Illinois Administrative
Code 830.203(c). Section 830.203(c) contains
14 location standards for composting areas at certain
landscape waste compost facilities.
15 Generally, the proponents requested that the
board amend that section to prohibit composting
16 areas from being located within one-half mile of the
property line of a hospital, school, athletic field,
17 or public park and to require that existing
composting areas located within that setback
18 distance be relocated.
The proponents alleged that their proposed
19 amendments are necessary because these composting
areas release spores into the air that present risks
20 to human health.
On June 17th, 1998, the board adopted proposed
21 amendments for first notice. The board declined to
adopt the proponents' proposal. Instead, the board
22 proposed that the current one-eighth-mile setback
applied to residences apply to health care
23 facilities, primary and secondary schools and their
associated recreational areas, and preschool and
24 child care facilities and their associated
recreational areas.
L.A. REPORTING (312) 419-9292
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1 As proposed, the new setback requirements would
apply only to the compost facility if it is
2 developed after January 1st, 1999, or if it's
permitted composting area is expanded after
3 January 1st, 1999.
The board also proposed corresponding changes
4 to certain permit application requirements.
Please note that sign-up sheets for this
5 proceeding, service and notice lists are located at
the back of the room. Those on the notice list will
6 receive only board opinions and orders and hearing
officer orders. Those on the service list will
7 receive these documents plus certain other filings.
Also at the back of the room are copies of the
8 current notice and service lists. These lists are
updated periodically. I have also placed at the
9 back of the room copies of my hearing officer order
dated June 30th, 1998.
10 Besides witnesses for the proponents and the
Illinois Environmental Protection Agency, if you
11 wish to testify today, you must sign in on the
appropriate sign-up sheet at the back of the room.
12 After any testimony from the proponents and the
Illinois Environmental Protection Agency, we will
13 proceed with the testimony of persons who sign up in
the order their names appear on the sign-up sheet.
14 This hearing will be governed by the board's
procedural rules for regulatory proceedings. All
15 information that is relevant and not repetitious or
privileged will be admitted. All witnesses will be
16 sworn and subject to cross questioning. If you do
not wish to give testimony, you may file written
17 public comments.
As for the order of today's proceeding, we will
18 begin with anyone who would like to testify
regarding the decision of the Department of Commerce
19 and Community Affairs to not conduct an economic
impact study for this rulemaking. Then we will
20 proceed with those who would like to provide
testimony regarding the board's first notice version
21 of the proposed rules. Again, for that testimony,
we will first allow the proponents and the Illinois
22 Environmental Protection Agency an opportunity to
present testimony. After that, we will proceed with
23 the testimony of persons who sign up in the order
their names appear on the sign-up sheet.
24 Anyone may ask a question of any witness. I
ask that during question periods, if you have a
L.A. REPORTING (312) 419-9292
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1 question, please raise your hand and wait for me to
acknowledge you. When I acknowledge you, please
2 state your name and any organization you are
representing here today.
3 Please speak one at a time. If you are
speaking over each other, the court reporter will
4 not be able to get your statements down for the
record.
5 Also, please note that any questions asked by a
board member or staff are intended to help build a
6 complete record for the board's decision and not to
express any preconceived notion or bias.
7 Are there any questions about the procedure we
will follow today?
8 Seeing none, I note that the board has no
additional hearing scheduled in this matter.
9 Also, at the end of today's hearing, I will set
a deadline for filing public comments.
10 Would any of the board members present like to
make any remarks at this time?
11 MS. HENNESSEY: I would just like to welcome
everybody and also just note that although we are
12 happy to receive written public comments following
this hearing, we do give more weight to the
13 testimony that's provided to the hearing than we do
to public comments primarily because there is an
14 opportunity for others to ask cross questions about
the testimony.
15 Thank you.
MR. McGILL: Okay. We will now proceed with
16 the matter of the Department of Commerce and
Community Affairs' decision to not conduct an
17 economic impact study for this rulemaking.
As background for this portion of today's
18 hearing, Public Act 90-489, which became effective
January 1st, 1998, requires the board to request the
19 Department of Commerce and Community Affairs, or
DCCA, to conduct an economic impact study on certain
20 proposed rules before adopting those rules.
Within 30 to 45 days of the board's request,
21 DCCA may produce a study of the economic impact of
the proposed rules. The board must make the
22 economic impact study or DCCA's explanation for not
conducting the study available to the public at
23 least 20 days before public hearing on the economic
impact of the proposed rules.
24 The board requested by letter dated January
30th, 1998, that DCCA conduct an economic impact
L.A. REPORTING (312) 419-9292
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1 study for this rulemaking. The board's letter
referenced a letter dated January 26th, 1998, from
2 DCCA in which DCCA notified the board that DCCA
would not be conducting economic impact studies on
3 rules pending before the board during the remainder
of fiscal year 1998.
4 In its letter, DCCA explained that it lacks the
technical expertise and the financial resources to
5 conduct these studies. Therefore, in its letter,
the board asked that DCCA notify the board within
6 ten days of receipt of the board's letter if DCCA
intended to conduct an economic impact study for
7 this rulemaking.
The board further stated that if it did not
8 receive this notification, the board would rely on
DCCA's January 26th, 1998, letter as the required
9 explanation for not conducting the study.
The ten days for DCCA to notify the board have
10 expired, and the board did not receive any
notification from DCCA that it will conduct an
11 economic impact study. In fact, the board has
received a letter from DCCA dated June 26th, 1998,
12 stating that for the same reasons, DCCA would not be
conducting economic impact studies on rules pending
13 before the board during fiscal year 1999.
Is there anyone who would like to testify
14 regarding DCCA's explanation for not conducting an
economic impact study for this rulemaking?
15 Seeing no response, we will move on to the next
portion of this hearing.
16 The purpose of this portion of the hearing is
to receive testimony from all interested persons on
17 the merits and economic impact of the first notice
version of the proposed rules. In addition, the
18 board would like to receive testimony on several
issues enumerated in my hearing officer order dated
19 June 30th, 1998. Copies of that hearing officer
order are located in the back of the room.
20 Testimony will also be received on other issues if
relevant and not repetitive.
21 At this point, I would like to ask, would the
proponents like to present any testimony?
22 MS. GARRETT: I would like just to make a
comment.
23 MR. McGILL: Why don't you step up here,
please?
24 (Brief pause.)
MR. McGILL: Why don't we have the court
L.A. REPORTING (312) 419-9292
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1 reporter swear you in first?
(The witness was duly sworn.)
2 MS. GARRETT: I want to thank the Illinois
Pollution Control Board for holding public hearings
3 and allowing citizens to provide input on the siting
of commercial compost operations in the state of
4 Illinois. I'm proud to say that the impact and
efforts of every day citizens can make a
5 difference. The process made available through the
Illinois Pollution Control Board and the IEPA made
6 it possible for citizens to take on the challenge of
revising a regulation and turning it into a reality,
7 hopefully, by assembling and stating the facts.
While the final proposal does not go as far as
8 we asked, it is certainly a very significant step in
controlling the siting of compost operations
9 throughout the state.
We have had consistency in the siting with
10 regard to residences, but the new regulation
includes guidelines for primary and secondary
11 schools, health care facilities, and preschool and
child care facilities, as well as the surrounding
12 recreational fields.
On behalf of thousands of citizens throughout
13 the state, I thank those parties who gave us the
opportunity to address this important issue.
14 MR. McGILL: Thank you. If you could just hang
on, do the proponents have any additional witnesses
15 to present today?
MS. GARRETT: No. The people that
16 testified are in agreement with the proposed change
in the regulation.
17 MR. McGILL: Okay. At this point, we will open
it up for any questions that anyone might have.
18 Again, as I mentioned earlier, if you have a
question, please raise your hand and wait for me to
19 acknowledge you. When I acknowledge you, please
state your name and any organization you are
20 representing here today.
Does the agency have any questions?
21 MS. DYER: None at this time.
MR. McGILL: Before the board proceeds with any
22 questions it may have, does anyone else have any
questions for this witness?
23 At this point then, I thank you.
MS. HENNESSEY: Thank you.
24 MS. McFAWN: Thank you for all of your work, as
well as your comments today.
L.A. REPORTING (312) 419-9292
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1 MR. McGILL: At this point, I would ask the
agency if they would like to present any testimony.
2 MS. DYER: We do have some brief testimony in
response to the --
3 MR. McGILL: If you would like, you can step up
here. It may be easier for us and the court reporter
4 to hear you.
MS. DYER: Good morning. My name is Judy
5 Dyer. I'm here today on behalf of the Illinois
Environmental Protection Agency. With me on my left
6 is Ed Bakowski. He's the manager of our permit
section for the Bureau of Land at the agency. On my
7 right is Joyce Munie. She works under Ed Bakowski
in the permit section.
8 We have some brief testimony to present today
in response to some of the questions that the board
9 requested information on or responses on in the
board order going to first notice.
10 MR. McGILL: Why don't we swear in the
witnesses first?
11 (The witnesses were duly sworn.)
MR. BAKOWSKI: My name is Ed Bakowski. I
12 manage the permit section in the division of land
pollution control with the Bureau of Land with the
13 IEPA. My section has the responsibility for
implementing and administering the landscape waste
14 composting regulations in Illinois pursuant to
Section 39 of the Illinois Environmental Protection
15 Act. I have served in this capacity for more than
four years. From 1987 to 1984, I was a solid waste
16 unit manager in this section, and prior to that, I
was in the mine pollution control program.
17 In the June 17th, 1998, notice concerning this
proposal, the board asked for testimony on several
18 specific subjects. As the regulating agency for
these rules, the Illinois EPA wants to provide as
19 much information to the board as possible. I wish
to provide testimony on the notice Items 1, 4, and
20 5. My unit manager in the solid waste unit, Joyce
Munie, will be addressing Item 2. Ms. Munie will
21 also be raising some technical concerns we have on
the proposed rules.
22 Regarding Item 1, the technical feasibility and
economical reasonableness of the proposed rule, as a
23 general rule: The agency does not have access to
business and financial information of permittees.
24 The decision of where a site will be made is made by
the owner/operator prior to submitting the
L.A. REPORTING (312) 419-9292
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1 application to the agency. Because of this, we do
not feel we can comment on the economic
2 reasonableness of complying with this proposal
either for new or existing facilities.
3 Concerning the technical feasibility, the
Illinois EPA is confident that within the state of
4 Illinois there is ample area to find parcels of land
that can meet the proposed setbacks. It is probable
5 that facilities would find more suitable parcels in
more remote areas, and therefore, transportation
6 costs will be higher as they are farther away from
populated areas where there are the more
7 concentrated markets for both generators and users
of the landscape waste and subsequent composts.
8 If the rule is adopted as proposed, it is clear
-- it needs to be clear in the rule when existence
9 of a facility of concern is established. I have
kind of generally categorized these facilities of
10 concern in one group.
It is necessary to know what date a facility of
11 concern is established to invoke the setback. In
other rules, it could either be based on the date of
12 the permit application or of the final decision, but
we think that date is critical and how that date is
13 established.
There is also the concern that if the setbacks
14 are retroactively applied, the creation of a new
facility of concern from which a setback -- a
15 compost facility must be set back from -- excuse
me. There is also a concern that if setbacks are
16 retroactively applied, does the creation of a new
facility of concern from which a compost facility
17 must be set back cause an existing compost facility
or even a facility permitted after these new rules
18 to be relocated?
Regarding Item 4, the Illinois EPA is not
19 exactly sure without additional definitions of the
types of facilities of concern that the new setback
20 will apply from, but even with a general reading of
the terms, it's clear that the agency has no or very
21 minimal information about the proximity and type of
facilities of concern that are near existing compost
22 facilities.
In an effort to help the board, the agency has
23 prepared and mailed a letter to entities that we
believe have this type of information. We have a
24 list of where these facilities were -- these
facilities -- these notices were mailed, and it was
L.A. REPORTING (312) 419-9292
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1 felt that counties and municipalities are the most
involved in zoning, and the compost sites themselves
2 may be aware of their neighbors.
I guess I would submit --
3 MS. DYER: We would like to submit as an
exhibit a letter that was sent.
4 MR. BAKOWSKI: I have ten copies of the letter
we sent and the attached notice and then three lists
5 of copies of who we sent it to. We basically sent
it to the permitted compost facilities, the counties
6 in Illinois, and the Illinois municipality.
MS. DYER: These are three copies of the letter
7 that was mailed and the attachments of the notice
and proposed rules.
8 MR. McGILL: This is three copies of the same?
MS. DYER: Right, and I can give you more. We
9 brought ten with us.
MR. McGILL: Those are extras.
10 MS. DYER: That's three copies of the list.
MR. McGILL: Mailing list?
11 MS. DYER: Mailing list.
MR. McGILL: Okay. I have been handed two
12 documents. The first is a letter from the Illinois
Environmental Protection Agency dated July 30th,
13 1998, regarding Proposed Amendments to Landscape
Waste Compost Facilities request for comment. And
14 attached to that letter is a copy of my hearing
officer order of June 30th, 1998, along with the
15 board's first notice opinion and order of June 17th,
1998.
16 Is there any objection to entering the
described documents as a hearing exhibit?
17 Seeing none, I am marking these documents as
Exhibit Number 46 and entering them as a hearing
18 exhibit.
(Hearing Exhibit No. 46 marked for
19 identification, 8-7-98.)
MS. HENNESSEY: Just a question. Did you
20 provide a copy of this letter to the proponents?
MS. DYER: No. I was going to offer that.
21 MS. GARRETT: Can I ask for clarification?
MR. McGILL: Sure. Just state your name again
22 for the record.
MS. GARRETT: Susan Garrett.
23 I guess I'm just a little confused. It appears
as if the IEPA is asking for -- the retroactive
24 aspect of the proposed regulation I thought was not
supported by the Illinois Pollution Control Board,
L.A. REPORTING (312) 419-9292
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1 but it seems as if, you know, the IEPA is concerned
that that is part of the proposed change in the
2 regulation.
MS. DYER: Excuse any confusion, if I could
3 just respond. We are trying to respond to questions
that the board posed in its order.
4 MS. GARRETT: Okay.
MS. DYER: And maybe it will become clearer
5 when Ms. Munie testifies as to what our position is
and remains and why we are providing this
6 information.
MS. GARRETT: Okay. All right.
7 MR. McGILL: Let me just ask one question to
reiterate this for the record. When you were
8 referring to question numbers in your earlier
testimony, you were referring to questions that were
9 set forth in my hearing officer order of June 30th,
1998; is that correct?
10 MR. BAKOWSKI: No. I was referring to the
questions in the June 17th, 1998, notice.
11 MS. HENNESSEY: And those are on Page 7 of the
June 17th order?
12 MR. BAKOWSKI: I believe so.
MS. HENNESSEY: Okay.
13 MR. BAKOWSKI: They are one through five
there.
14 MR. McGILL: Thank you.
MS. HENNESSEY: I just have a question. Are
15 you going to give these exhibit numbers for the
record or what?
16 MR. McGILL: Yes. This is Exhibit Number 46,
the agency letter with the attachments.
17 MS. HENNESSEY: Okay.
MR. McGILL: We left off at 45 last time.
18 MS. HENNESSEY: Okay.
MR. McGILL: And the other document that the
19 agency has handed me is a list of mailing
addresses. These are the persons to whom the agency
20 sent the letter and attachments that are now Exhibit
46.
21 Is there any objection to entering this mailing
list as a hearing exhibit?
22 Seeing none, I'm marking this document as
Exhibit Number 47 and entering it as a hearing
23 exhibit.
(Hearing Exhibit No. 47 marked for
24 identification, 8-7-98.)
MR. McGILL: Would the agency like to proceed
L.A. REPORTING (312) 419-9292
13
1 with its testimony?
MR. BAKOWSKI: A little further in response to
2 Ms. Garrett's question, we didn't send you a copy of
our letter because all we were trying to do is
3 solicit information for the board. When the board
proposed its notice, it asked specific questions,
4 and the agency feels obligated to provide testimony
as much as we can. In this instance, we didn't feel
5 we had the information, so we tried to find -- think
about who had that information and tried to let them
6 know that the board was seeking that type of
information. And we knew you would be here, so you
7 would see the letter eventually. But it was just an
effort to try to -- try to get as much information
8 to the board because we didn't feel we had that type
of information.
9 MS. GARRETT: Okay.
MR. BAKOWSKI: I think I'm finished.
10 MR. McGILL: Okay.
MS. HENNESSEY: Thank you for your efforts to
11 solicit comments. We appreciate that.
MS. MUNIE: Good morning. My name is Joyce
12 Munie. I manage the solid waste unit of the permit
section division of land pollution control at the
13 Illinois EPA.
I am testifying today in response to the
14 board's request for testimony on specific issues and
other issues, if relevant and not repetitive, on
15 Page 7 in the June 17th, 1998, first notice order in
this matter. I would like to address the second
16 issue identified in the order: If the setbacks
proposed in this first notice order were applied to
17 existing compost facilities, should they apply
immediately or after some period of time expires?
18 The Illinois EPA testified in the original
hearings that these setbacks should not be added at
19 all either prospectively or retroactively. Since
sufficient protection is in place with existing
20 operational and location standards, the Illinois
EPA's position has not changed. But since the
21 board, in its order, has indicated that retroactive
applicability of the setbacks may be under
22 consideration, the Illinois EPA feels compelled to
address that possibility.
23 If the board were to apply the setbacks to
existing facilities, the Illinois EPA would
24 recommend that the applicability be phased in with
the compliance deadline for each existing facility
L.A. REPORTING (312) 419-9292
14
1 being the current permit expiration date for that
facility.
2 As I testified in the first hearing, the
Illinois EPA does not believe that adding the
3 proposed setback requirement to new facilities will
have any impact on our administrative cost. Any
4 proposed facility would just need to be located
outside any setbacks that are in place at the time
5 of application, and review of setback demonstration
would just be a small part of the overall review of
6 the application.
However, if the additional setbacks are imposed
7 retroactively, the Illinois EPA would expect the
need to permit additional compost facilities to
8 replace the existing facilities required to close.
This would have a short-term impact when the rule is
9 first adopted.
As I stated in the first hearing, if 35 new
10 facilities were needed to replace facilities that
needed to close, it was estimated that this would
11 cost the Illinois EPA between 525,000 and $700,000
within the first couple of years after the rules
12 became effective.
If this requirement were phased in, the
13 Illinois EPA could distribute these costs over a
longer period of time. This estimate was based on
14 an assumption that 50 percent of the facilities
would close. If the information gathered by the
15 board in these proceedings reveal that more or less
of that percentage will close, this cost can be
16 adjusted accordingly.
We also want to mention that under the current
17 compliance schedule, in 35 Illinois Administrative
Code 830.107, the facilities that are continuing to
18 operate under permits issued pursuant to 39(m) of
the act must demonstrate compliance with all of the
19 provisions of Part 830 upon renewal. We expect
these additional requirements to cause some
20 facilities to close anyway based on our experience
with our facilities that have come to that
21 deadline.
As stated by Edwin Bakowski, the remainder of
22 the questions posed by the board need to be
addressed by the industry and communities that will
23 be impacted by the proposed rules.
We want to identify a few concerns about the
24 regulations as proposed by the board.
First, no definitions have been added. What
L.A. REPORTING (312) 419-9292
15
1 type of facilities are to be included in the scope
of health care facilities? There are many types of
2 facilities that could arguably be included. Is a
nursing home a health care facility? Does a
3 doctor's office fit into this definition? Is a
psychiatrist's office included? Is a mental health
4 hospital included?
We assume that primary and secondary schools
5 would be kindergarten through 12th grade and could
include public and private schools. Is a home where
6 children are home-schooled included?
For preschool and child care facilities, the
7 definition could be very broad. Are all children's
day care facilities included? Would this include
8 in-home day care facilities? Is there a minimum
number of children that must be cared for in the day
9 care? Are church schools included in either of
these definitions? Also, are the associated
10 recreational areas to schools only the contiguous
areas? Are arenas or fields not owned by the
11 schools but leased or used for recreational
activities included? From where is the measurement
12 to the composting area made? In the case of a
health care facility, would the measurement be made
13 to the building or to the property line? Are
buildings that are used for support such as
14 maintenance buildings at health care facilities
included in the setback?
15 For the school and child care facilities with
the associated recreational areas, is the
16 measurement made to the associated area and building
or to the property line? These issues should be
17 addressed in the definitions.
Second, we would like to make it clear that
18 compost facilities must be set back only from
facilities of concern that exist and are used for
19 purposes for which a setback applies on the date
that a complete application for the development of
20 the compost facility or expansion of the compost
facility is submitted to the Illinois EPA.
21 Also, if the board chooses to make the setback
retroactive, it should be made clear on what date to
22 consider the location of the facility of concern
from which the compost facility is set back. A
23 school, day care, or health care facility could have
moved within 660 feet of the compost area after the
24 compost facility was developed and in operation.
Would an existing compost facility use the date it
L.A. REPORTING (312) 419-9292
16
1 was originally developed or another compliance date
that the board establishes when demonstrating that
2 the existing compost area is appropriately set back
from the facility of concern?
3 That concludes my testimony on behalf of the
Illinois EPA today.
4 MR. McGILL: Does the agency have any
additional testimony they would like to present
5 today?
MS. DYER: That's all the testimony we have.
6 If there are any questions, we could try to respond
to those.
7 MR. McGILL: Okay. Why don't we open it up for
questions?
8 Are there any additional questions for the
agency's witnesses?
9 Seeing none, the board may have a question.
Why don't we go off the record for a moment?
10 (Whereupon, a discussion was held off
the record.)
11 MR. McGILL: Let's go back on the record.
This is a question for Ms. Munie. I believe in
12 your testimony you stated that even if the board
were to adopt the first notice version of the rules
13 as final rules that a facility would have a
compliance date at some point at which it would need
14 to be in compliance with these new setback
requirements?
15 MS. MUNIE: No, with all of 830. But the way
your rule is written, it's clear that it's only
16 facilities that are expanded or developed after a
specified date that have to comply with that new
17 setback, but the rest of 830 must be complied with
upon renewal or expansion.
18 MR. McGILL: So you would view these additional
setback requirements that the board has proposed as
19 a siting requirement?
MS. MUNIE: Yes, for new facilities.
20 MS. HENNESSEY: New or expanded.
MS. MUNIE: New or expanded, yes.
21 MR. McGILL: Thank you.
MS. HENNESSEY: I have a question. Earlier in
22 your testimony, I thought I heard you say that the
agency doesn't support the setbacks even as
23 proposed. Is that correct? I guess, I -- first of
all, is that -- did I understand you correctly?
24 MS. MUNIE: Yes. In our original testimony, we
stated that we don't support the need for it.
L.A. REPORTING (312) 419-9292
17
1 MS. HENNESSEY: Although I thought in your
later public comments filed after we had kind of
2 discussed this potential compromise proposal that
the agency at least didn't object to it.
3 MS. MUNIE: We don't object to it.
MS. HENNESSEY: And also, on definitions, I
4 would just -- you raised some interesting questions
on definitions. In terms of health care facilities,
5 I would note that the TACO refers it to -- which was
an agency proposal, refers just to health care
6 facilities, and I'm just wondering if the agency has
had experience with that kind of term in other
7 regulations outside of the composting facility and
whether that might aid the agency in applying this
8 regulation without further definitions.
MS. HENNESSEY: By TACO, just for the record, I
9 will make it clear, the Tiered --
MR. McGILL: Tiered Approach to Corrective
10 Action Objectives, Part 742 of 35 Illinois
Administrative Code.
11 MR. BAKOWSKI: Right. In the permit section,
we do utilize some of the TACO information, but we
12 don't routinely go through -- and it's fairly new,
and we haven't -- in our section haven't run across
13 that. We did look back and look at some other
permitting rules that had references, and we found
14 one for hospitals, and I think we have a general
idea what a hospital is, but some of the health care
15 facilities were a little unclear. I guess we can
address some of that. In comment, we can go back
16 and talk to the -- primarily the underground storage
tank program and the remedial project management
17 programs, look at that. They might have had some
experience over the past year in that.
18 MS. HENNESSEY: Okay. I'm a little --
certainly we will have to give some thought to
19 definitions. One of the problems, though, when you
start defining things is then there are questions
20 about the definitions, so it seems there is never an
end. I mean, there are always going to be some gray
21 areas, but it may be that health care facilities and
schools, et cetera need some further definition.
22 I think we were thinking of those terms -- I'm
not speaking for the board, but at least my
23 impression when we think of these terms in kind of
ordinary, common sense usage of those terms to the
24 health care facility would not be, for example, a
drug rehab facility, I mean, because that wasn't the
L.A. REPORTING (312) 419-9292
18
1 kind of facility that we were necessarily concerned
about. It wasn't really discussed in some of the
2 hearings that we had had. But I guess I would just
encourage you, if you can, to help us to come up
3 with any suggested definitions that would be helpful
for us to consider.
4 MR. ANAND: I would just like to add to what
Ms. Hennessey was saying regarding landfill rules,
5 we use the term schools in setting setbacks from
landfills, so if you have any experience in defining
6 schools under your landfill program, we can look at
that.
7 MS. MUNIE: Actually, the schools was the
easiest one. It's when it went to day care
8 facilities and the associated areas that it became
tougher.
9 MR. BAKOWSKI: Yes, and recreational areas to
schools because a lot of schools, you know, they
10 just -- they just have adjacent areas that might be
a public park that the school doesn't even control
11 or a piece of land that some other entity may own
and they let the schools go out and use those
12 areas.
MR. McGILL: I just had a question. The
13 current regulations have a setback requirement for
residences, and the rule, as far as I know, does not
14 specify a date certain by when the measurement is
made. How does the agency apply the current
15 regulation?
MS. MUNIE: The current regulation, first of
16 all, there is a 200-foot setback and a 660-foot
setback, and it's based on the date that the
17 facility was first permitted or was expanded.
DR. DESAI: Can I respond to the question about
18 the home day care?
MR. McGILL: Maybe we better let the agency
19 respond to the question I just posed, but please
keep your question, and you will have a chance to
20 ask that.
MS. MUNIE: The reference on that is Section
21 830.203(c), and it specifies the 200-foot setback
came from Section 39(m) of the act, and it was when
22 compost facilities were first permitted under
39(m). And then there was a second setback added by
23 the legislature of November 17th, 1991, for a
facility that is developed or the permitted
24 composting area is expanded after 1991 -- November
17th, 1991, so that is set by that date that that is
L.A. REPORTING (312) 419-9292
19
1 the date you look at, location.
MR. McGILL: Right. I understand that. I'm
2 just saying that as far as I know, the rules don't
specify a compliance date or a date when you would
3 measure that eighth of a mile for a residence. You
were suggesting it should be a time certain like
4 when a permit is -- permit application is submitted
or when a permit is issued.
5 MS. MUNIE: Actually, we believe that for the
rules as written, it would be the date that the
6 application is complete -- made complete to us.
It was the question of if you make it
7 retroactive, you will need to make it clear that --
because we haven't seen a proposal on that yet, you
8 should make it clear that it's a date that's
specified, and that's the date that they look at
9 it.
MR. McGILL: In terms of the existing -- you
10 had mentioned being in compliance with the setback
at the time the permit application was complete.
11 MS. MUNIE: Yes.
MR. McGILL: Is that approach that you just
12 described anywhere in the regulations, the current
regulations?
13 MS. MUNIE: That is under 830.203(d).
MR. McGILL: If I understand (d), that's an
14 operational requirement that you have to, by the end
of each day, have your landscape waste in the
15 windrows?
MS. MUNIE: The only time you are required by
16 the regulations to make an application demonstrating
your location is when you are developing a new area
17 or expanding under your compliance deadlines. So if
you don't have to make an application demonstrating
18 it, the demonstration is not questioned again.
MR. McGILL: Can we just go off the record for
19 a minute?
(Whereupon, a discussion was held off
20 the record.)
MR. McGILL: Let's go back on the record.
21 Just for clarification, if we could get a
response from the agency on what date they feel is
22 the most appropriate to measure or to determine
compliance with the setback.
23 MS. MUNIE: For retroactivity if it's
retroactive?
24 MR. McGILL: No. Forgetting that, as proposed
by the board in its first notice and in the order.
L.A. REPORTING (312) 419-9292
20
1 MS. MUNIE: We will be glad to do it in written
comment. However, you do have a compliance date set
2 in the rules and --
MR. McGILL: I think I need to specify. By
3 compliance date, I'm not referring to the January 1st,
1999, date where we are talking about the facilities
4 developed or expanded after that date.
You had talked about the permitting process and
5 when you would determine if a proposed facility or
expansion is within a certain distance from a
6 protected facility. Would it be when a permit
application arrives or when it's complete or when a
7 permit is issued or some other time? In terms of
the latter compliance date, what does the agency
8 feel would be the most appropriate time to make that
determination?
9 MS. MUNIE: It's when the application is
complete at the agency.
10 MR. McGILL: Okay. Is that an agency
determination that's made in writing?
11 MS. MUNIE: That an application is complete?
MR. McGILL: Right.
12 MS. MUNIE: Yes.
MR. McGILL: And that is sent to the permit
13 applicant?
MS. MUNIE: It's sent to the permit applicant.
14 We inform them either it's complete or it's
incomplete for these reasons, and we give them the
15 date -- the date that we receive the application is
the date that it's determined approved.
16 MR. McGILL: Thank you.
As you know, these setback requirements apply
17 also to nonpermitted landscape waste compost
facilities. Does the agency have any thoughts on
18 what a compliance date would be for purposes of
siting those nonpermitted facilities?
19 MS. MUNIE: It would be the date where it's
developed or it's expanded because since they don't
20 come in with an application to us, there is no paper
trail. It should be the date of construction for
21 development or construction for expansion.
MR. McGILL: You mean the date the construction
22 commences?
MS. MUNIE: Commences, yes.
23 MR. McGILL: I just have one more question.
You had mentioned where to measure from. The
24 board's first notice opinion and order of Page 37
mentions that the setback should be measured from
L.A. REPORTING (312) 419-9292
21
1 the nearest edge of the composting area to the
nearest property line of the protected facilities.
2 Does the agency agree with that approach?
MS. MUNIE: The property line is a fine
3 approach as long as -- when a city owns a school and
they own more property than what is the school, but
4 it's contiguous, there is a very hazy line right
there where where does the school property line end
5 and where does the city property begin if it could
be the school property as opposed to the owner of
6 the school which, in general, for public schools is
the city.
7 MS. HENNESSEY: Is that different than -- how
is it currently done for residences? Is it done the
8 same way: Composting area to the property line?
MS. MUNIE: Yes, yes.
9 MS. HENNESSEY: Okay.
MR. McGILL: It is done to the property line of
10 the residence?
MS. MUNIE: It's done to the property line.
11 MR. BAKOWSKI: Usually a residence has a
defined property. When you have schools associated
12 with churches, the church may have all kinds of
pieces of property everywhere, and a school may sit
13 on one part and they might go a half-mile over and
that's their recreational area and things like
14 that.
MS. MUNIE: And in the case of a farm, it's
15 defined as the manicured area around the home.
MS. HENNESSEY: I see.
16 MS. McFAWN: Under what regs?
MS. MUNIE: Under a determination --
17 MR. BAKOWSKI: I think that the agency's view
is residences at farms are -- you know, a farm might
18 be 9,000 acres, but what we consider the residence
of a farm is the area where the house is where
19 people live, and usually they manicure a certain
area around there. They maintain landscaping
20 MS. McFAWN: So that's how you have interpreted
it for those?
21 MR. BAKOWSKI: Right.
MS. McFAWN: I see.
22 MR. McGILL: Are there any other questions for
the agency?
23 If you would just state your name for the
record, please.
24 DR. DESAI: My name is Renuka Desai. I'm from
Lake Forest, Illinois, and I just have a question
L.A. REPORTING (312) 419-9292
22
1 for the EPA.
How many violations do you need to revoke the
2 permit of the existing facility?
MS. MUNIE: The Illinois EPA does not have the
3 authority to revoke a permit.
DR. DESAI: So even if they have 100 violations,
4 200 violations, still we can't do anything about
it?
5 MS. MUNIE: We can enforce against them, and
through an enforcement action, a permit can be
6 revoked by the board.
MR. BAKOWSKI: The decision to pursue
7 revocation of a permit is based on the history of
the facility, the number of violations, but more
8 important than the number is the severity and the
potential threat to human health and the
9 environment. So one violation that's real serious
might cause a revocation where 100 violations of
10 other provisions that don't have a direct impact on
human health and the environment may not.
11 MS. MUNIE: But these violations must be
adjudicated in front of a court where a determination
12 must be made that we are right in the violation that
we have cited.
13 DR. DESAI: Okay. Thank you.
MR. McGILL: Go ahead and state your name,
14 please.
MS. BUCKO: My name is Chris Bucko, and I was
15 curious. It appears that Ms. Munie was indicating
that the agency's position was that this -- these
16 proposed regulations would affect only developmental
permits or expansion permits, and I was interested
17 to hear how a renewal would be handled.
MS. MUNIE: Under the regulation as written, it
18 would just be facilities that expanded their
composting area or newly developed facilities after
19 a certain date. And renewals would be handled the
same way renewals are handled now. If a facility
20 was developed before 1991, it has a 200-foot setback
from a residence; whereas, if it was developed after
21 November 17th of 1991, there is a 660-foot setback
to a residence. This would be handled similarly.
22 MR. McGILL: Thank you. Ms. Bucko, just for
the record, you are with the Attorney General's
23 office?
MS. BUCKO: That's correct.
24 MR. McGILL: Thank you.
Are there any other questions for the agency's
L.A. REPORTING (312) 419-9292
23
1 witnesses?
Seeing none, I'm just going to go off the
2 record for a moment.
(Whereupon, a discussion was held off
3 the record.)
MR. McGILL: Let's go back on the record.
4 Seeing no further questions for the agency's
witnesses, I would like to thank the agency for
5 coming here today and presenting this testimony.
MS. DYER: You are welcome.
6 MR. McGILL: Let's go off the record for a
moment.
7 (Whereupon, a discussion was held off
the record.)
8 MR. McGILL: Let's go back on the record.
At this point, we are going to turn to the
9 testimony of those who have signed up to testify
today. Again, we will proceed in the order in which
10 their names appear on the sign-up sheet.
At this point, I would ask Ms. Joy Hinz if she
11 would step up.
(Brief pause.)
12 MR. McGILL: Why don't we go ahead and have the
court reporter swear you in?
13 (The witness was duly sworn.)
MR. McGILL: I just want to make sure that you
14 again state your name and the organization you are
representing here today and your position with that
15 organization.
MS. HINZ: My name is Joy Hinz, and I am with
16 Will County. We are responsible for enforcing the
Environmental Protection Act and the regulations set
17 forth, and I am here to make a statement prepared by
our office in regards to two of the permitted
18 facilities, as well as the proposal.
MR. McGILL: Excuse me. Would you just speak
19 up a little? I'm having a hard time hearing you.
MS. HINZ: Oh, sure.
20 MR. McGILL: Thank you.
MS. HINZ: I will go ahead and read the
21 statement.
The Will County Land Use Department Waste
22 Services Division would like to provide comments
with regard to the technical feasibility of
23 requiring a one-eighth mile setback for landscape
waste compost facilities from health care
24 facilities, from primarily secondary schools and
their associated recreational areas, and preschool
L.A. REPORTING (312) 419-9292
24
1 and child care facilities and their associated
recreational areas.
2 The Pollution Control Board has concluded,
quote, no relationship between exposure to certain
3 levels of A. fumigatus spores and adverse health
effects has been demonstrated. This was stated in
4 the opinion and order of the board, proposed rule,
first notice, Page 5.
5 In addition, the board further concluded that
the concentration of A. fumigatus spores falls to
6 background within approximately 500 feet of the
composting area quoted in the opinion and order of
7 the board, proposed rule, first notice, Page 5.
Given these conclusions, there appears to be no
8 imminent threat to cause the board to apply the new,
more stringent setback requirements either
9 prospectively or retroactively.
If the more stringent setback requirements must
10 be imposed, the board should only apply them
prospectively to any composting area developed or
11 expanded no earlier than January 1st, 1999.
The Will County Land Use Department Waste
12 Services Division is not aware of any documented
adverse health effects resulting from exposure to
13 A. fumigatus within Will County. However, if more
stringent setback requirements are imposed
14 retroactively, at least one permitted compost site
in the county would be closed: Referenced, Land and
15 Lakes in Romeoville.
Loss of this facility would inevitably result
16 in an increased transportation cost for those
residents using this site, increased open dumping
17 and open burning, illegal dumping of landscape waste
in landfills, and loss of sustainable market for
18 landscape waste compost.
In summary, first, there appears to be no
19 imminent public health threat to require a
one-eighth-mile setback. Secondly, retroactively
20 applying the one-eighth mile setback would result in
loss of permitted composting capacity within Will
21 County and a sustainable market for landscape waste
compost in this area.
22 That's it.
MR. McGILL: Thank you. Are there any
23 questions for this witness?
Seeing none, I'm just going off the record for
24 a moment.
L.A. REPORTING (312) 419-9292
25
1 (Whereupon, a discussion was held off
the record.)
2 MR. McGILL: Let's just go back on the record.
We just have one question. Can you provide any
3 testimony on the anticipated economic impact or
economic effect of the first notice version of the
4 proposed rules?
MS. HINZ: We do not have any evidence at this
5 time.
MR. McGILL: Okay. Thank you.
6 Are there any other questions for this
witness?
7 MS. McFAWN: I had just a few background
questions. Maybe I missed it, but you are with Will
8 County?
MS. HINZ: Yes.
9 MS. McFAWN: And your position with Will County
is?
10 MS. HINZ: Environmental enforcement officer.
We are a -- at the moment we are not, but we are
11 normally a delegated county with the Illinois EPA.
MS. McFAWN: And your statements today were
12 made on behalf of Will County?
MS. HINZ: Correct.
13 MR. McGILL: Any further questions for this
witness?
14 Seeing none, we would like to thank you for
being here today.
15 MS. HENNESSEY: Thank you.
MS. HINZ: Thank you.
16 MR. McGILL: We will now proceed with the
testimony of Mr. Charlie Pick.
17 (Brief pause.)
MR. McGILL: If the court reporter would swear
18 in the witness, please.
(The witness was duly sworn.)
19 MR. McGILL: Again, before you begin, if you
would just please state your name and identify any
20 organization you are representing here today and
your position with that organization.
21 MR. PICK: Certainly. My name is Charlie
Pick. I am vice-president of Organics Management
22 Company. It's based in Chicago.
First, I would like to say for the record that
23 the first notice recommendation by the board to
apply the setback requirements to new or expanded
24 facilities I think is entirely reasonable. It's
consistent, I think, with the intent -- original
L.A. REPORTING (312) 419-9292
26
1 intent of the setback requirements of the original
EPA regulations.
2 However, I do agree with Joyce Munie that a lot
of work should go into looking at the definitions of
3 the proposed additional facilities, health care
facilities, schools and so forth that would be
4 affected by this rule.
About a year ago, I think, in this room, I gave
5 testimony about the economic impact as to the
retroactive application of this rule, and I'm not
6 going to rehash that other than to say that I
maintain that a retroactive application of this rule
7 would be pretty devastating to the composting
infrastructure in the state.
8 With respect to a prospective application, at
the end of your first notice, you asked for
9 testimony with respect to prospective and
retroactive application of the rule, especially with
10 regard to economics, and based on DCCA's comment
that they are not able to provide it, I thought that
11 my testimony might be helpful in looking at the
prospective side of it.
12 With a prospective application, what I
understand that to mean would be an application of
13 the rule at the time of permit expiration or renewal
sometime in the future, and I do think that a
14 prospective application would at least give an
operator the opportunity to minimize the loss of
15 investment by having some ability to plan for that
date when their permit expires. But obviously,
16 there are a number of different dates across the
whole variety of facilities that are currently
17 permitted when that would occur. It could be two
months from now, two days from now, or two years
18 from now, so the impact could range from devastating
to at least, you know, minimal, although site
19 improvement costs generally are completely lost when
a facility is closed simply because you can't sell
20 those improvements typically to a new property
purchaser. They don't place any economic value on
21 those.
But aside from the economic implications of a
22 closure sometime in the future, I think it's more
important to look at the effect on the composting
23 capacity in the state of Illinois if that were put
into effect prospectively. Essentially, the
24 facilities that would be affected by this rule would
be unlikely to relocate in any kind of close
L.A. REPORTING (312) 419-9292
27
1 proximity to where they are now simply because if
the rule affects them, it's quite likely that they
2 are in a densely populated area where it would be
almost impossible to find another piece of property
3 nearby that would find -- that would be suitable for
composting. Lake Forest did an investigation to try
4 and move their site, and they couldn't find anything
with any kind of reasonable distance -- reasonable
5 proximity to the original site.
And to give you an illustration of the problem
6 in relocating, if you look at a five-acre composting
facility and then look at a 660-foot setback around
7 that facility, if you look at that all told, you are
looking at a 73-acre block of land that has --
8 effectively has to have nothing in it, so to speak,
in terms of applicable receptors as far as the
9 setback requirements are concerned. So 73 acres of
land, that's 660 feet all around plus the size of
10 the facility. That is a huge piece of land in any
kind of urban environment where essentially nothing
11 is going on.
In addition to that, typically operators look
12 for more than 660 feet in the prevailing wind
direction where there is no receptor at all, whether
13 that be -- forget about the statutory requirements,
but in terms of any sort of office building or any
14 other sensitive receptor that would object to the
facility, they are looking for 1,000 feet, 1200
15 feet, 1500 feet where there is nobody there. So the
likelihood of relocating a facility in close
16 proximity to the affected facility that was closed
down under this rule is really, really, really
17 slim.
MS. HENNESSEY: Can I just interrupt you
18 because I think there may be unwitting confusion
that we have created about the terms prospective and
19 retroactive. I think I speak for the board. I
don't officially speak for the board. My
20 understanding when we talked about this
prospectively -- applying it prospectively, that
21 meant it would only apply to facilities -- to either
new facilities or facilities that were expanding.
22 MR. PICK: Okay.
MS. HENNESSEY: What you seem to be talking
23 about when you use the word prospective is having
this requirement apply to existing facilities
24 already sited sometime in the future, so either when
their permits come up for renewal or at some set
L.A. REPORTING (312) 419-9292
28
1 date.
MR. McGILL: Even if they don't expand.
2 MR. PICK: Right.
MS. HENNESSEY: Okay. So what you have been
3 addressing now is the application of these setbacks
to existing facilities?
4 MR. PICK: Right. Maybe I misunderstood.
MR. McGILL: That is one of the questions we --
5 MR. PICK: I thought that was part of the
question.
6 MS. HENNESSEY: We did pose that question, but
I just wanted to make sure that you don't have a
7 problem with this proposal as it applies to only new
or expanded facilities.
8 MR. PICK: That's correct.
MS. HENNESSEY: Okay. Thank you.
9 MR. PICK: Yeah. I'm just looking at the
existing facilities, and I'm trying to give you some
10 economic basis.
MS. HENNESSEY: Which is exactly what we asked
11 for. Thanks.
MR. PICK: Okay.
12 So given that the facilities affected would
close, it would be unlikely to relocate in any kind
13 of close proximity to their original location. What
you are left with in a scenario like that, in my
14 estimation, would be not unlike what the solid waste
experience -- solid waste industry experienced under
15 Subtitle D, which is that a lot of the small, local
landfills have no choice but to close. And what was
16 left was essentially a transfer station
infrastructure, which is not a bad thing, but it was
17 a transfer station that took this solid waste from
more densely populated areas out to larger, more
18 remote landfills, and I don't see the composting
business going in any other direction under this
19 scenario. So many of these composting sites would
likely become transfer stations, or some of them
20 would just close completely and other transfer
stations would open.
21 The net result, I believe, is that you would
have two things. One: You would have larger, more
22 remote composting facilities just like you have
larger, more remote landfills now. And number two:
23 The transportation costs to get the materials from
the populated areas to those remote facilities would
24 have to be borne by the generators, and when I say
generator, it's the taxpayer or a landscaper which
L.A. REPORTING (312) 419-9292
29
1 would, in turn, pass that cost on to the homeowner.
So ultimately, the citizens would pay the additional
2 cost of transportation and processing to move the
material from the transfer station and over to the
3 remote composting facilities.
Transfer stations mean additional handling,
4 additional processing, and then the trucking in both
directions because not only would you transfer raw
5 material out to the sites, but you would have to
bring the compost back to the urban areas in order
6 to make it marketable because if you are 60 miles
from downtown Chicago or 100 miles from downtown
7 Chicago, it is quite difficult to market finished
product in that area of the world.
8 So in conclusion, I believe that if the rule
were applied to facilities at the time of permit
9 expiration or renewal that that would result in most
of those facilities closing down and considerable
10 additional costs to the homeowner in terms of
disposal fees for the yard waste that they
11 generate.
MS. HENNESSEY: We had a lot of testimony at
12 the first hearing about how the half-mile proposed
setback would be a problem. As I understand what
13 you are saying today, even an eighth-of-a-mile
setback is going to cause just -- would it cause the
14 same number of facilities to close, would you
think?
15 MR. PICK: Well, it's going to be fewer than a
half a mile for sure, but there are a number of
16 facilities -- because schools in particular are --
there are a lot of facilities that are not very far
17 from schools, and so they would be closed down. I
mean, I know that there was testimony even to the
18 effect of the rule on the eighth-of-a-mile setback
for existing facilities, and a lot of them would be
19 affected. I believe Crystal Lake would be, village
of Winnetka, the city of Evanston. I don't have a
20 complete list, but a lot of facilities. So to the
extent that each one of those closes, then those
21 costs are going to be higher.
MR. McGILL: Are there any questions for this
22 witness?
Go ahead and state your name.
23 MS. GARRETT: Susan Garrett.
In regard to the economic impact, I think we
24 testified originally that other communities make
allowances for the cost of transporting yard waste,
L.A. REPORTING (312) 419-9292
30
1 and that is picked up by taxpayers. As far as I
know, Highland Park is a good example. There have
2 not been any negative repercussions on that issue at
all, and I think it's important to discuss and to
3 debate the idea of having these sites farther away
from the public and then having the transportation
4 cost built into it because I think in the long run,
that's what the citizens do want, and I think in the
5 long run it will be a much healthier industry for
the composting business.
6 MR. PICK: Was that a question or a comment?
MS. GARRETT: I just wanted to comment on what
7 you said regarding the extra dollars that taxpayers
would pick up.
8 MR. McGILL: Let me just clarify, Ms. Garrett
is still under oath, and there will be an
9 opportunity to provide additional testimony since
Mr. Pick is the last person to sign up. So if you
10 have any specific questions for this witness, why
don't we pose those now? Then everyone will have a
11 chance to provide any additional testimony, if they
would like, a little later.
12 Are there any questions for this witness?
Seeing none, I just have one question. I was
13 wondering if you could provide any testimony on the
anticipated economic effect of the first notice
14 version of the proposed rules. And just for
clarity, as proposed at the first notice, the new
15 setback requirements would apply only to a compost
facility if it is developed after January 1st, 1999,
16 or if it's permitted composting area is expanded
after January 1st, 1999.
17 MR. PICK: I think the economic impact under
that notice would be minimal because the expansion
18 is voluntary and you know what the rules are, and if
it doesn't make economic sense, you don't do it.
19 As far as a new facility, it's the same thing:
You go in with your eyes open and make that decision
20 MR. McGILL: But a facility -- if someone did
want to develop or expand a facility, what sort of
21 economic impact do you think these new rules would
have?
22 MR. PICK: I think what you are more likely to
see is larger, more remote facilities because the
23 more stringent the setback requirements, the harder
it is to site these facilities. But again, the
24 developer or owner of a facility that would be new
or expanded would not undertake that investment
L.A. REPORTING (312) 419-9292
31
1 unless they felt it warranted. So I think it's -- I
don't see any net impact on the industry as a result
2 of it or on cost.
MR. McGILL: Are there any other questions for
3 this witness?
Seeing none, I would like to thank you for
4 being here today and providing that testimony.
At this point, I would ask if there is anyone
5 who would like to provide testimony at this point.
I see two individuals. I saw Dr. Desai's hand
6 first, so Dr. Desai, if you would step up here,
please.
7 (Brief pause.)
MR. McGILL: Why don't you go ahead and let the
8 court reporter swear you in first?
(The witness was duly sworn.)
9 MR. McGILL: If you would just state your name
for the record.
10 DR. DESAI: Okay. My name is Renuka Desai, and
I just want to make a statement. I would like to
11 thank the board for taking their time and looking
into this issued because nobody was ready to listen
12 to this. You have invested so much time and you
have come to some kind of reasonable conclusion, and
13 I want to thank you, and I would strongly support
whatever decision the board will make because I know
14 that you will make the decision in good faith.
Thank you.
15 MR. McGILL: Thank you.
Were there any questions for Dr. Desai?
16 Seeing none, I will just note that
Dr. Desai was one of the proponents, along with
17 Susan Garrett.
I believe there was one other person who
18 indicated they would like to provide testimony. If
you would step up, you are welcome to sit or stand
19 as you wish.
MR. GEISS: Okay.
20 (Brief pause.)
MR. McGILL: We'll go ahead and have the court
21 reporter swear you in.
(The witness was duly sworn.)
22 MR. McGILL: Before you begin, if you would
state your name and any organization you are
23 representing here today and your position with that
organization.
24 MR. GEISS: My name is Jeffrey Geiss. I work
for CDT Landfill in Joliet, and I am operations
L.A. REPORTING (312) 419-9292
32
1 manager at the Joliet landscape waste compost
facility. I have been the manager there since
2 1992.
First, CDT would like to support the positions
3 of the Illinois Environmental Protection Agency and
the Will County land use department. The only -- we
4 have talked to our engineers and we do not feel that
the setback requirement will affect our facility
5 today, but the questions that we were concerned
about would be that if new child care facilities or
6 health care facilities were located within the
setback at a later time, if this would affect our
7 permit.
The other question we had was if a permit
8 renewal was considered in an expansion, and I think
that question was answered earlier.
9 We also believe that this regulation could, in
fact, increase illegal dumping of yard waste in
10 areas where the compost facilities would be
affected.
11 Thank you.
MR. McGILL: I just wanted to ask -- was that
12 the extent of your testimony?
MR. GEISS: Yes.
13 MR. McGILL: I just wanted to ask a question.
In terms of what the board has proposed at first
14 notice, the new setback requirement would apply only
if a facility is developed or expanded after
15 January 1st, 1999.
MR. GEISS: Correct.
16 MR. McGILL: The organization you represent, do
you have any -- do they have any thoughts on what
17 the board has proposed at first notice in terms of
economic impact or the merits of the first notice
18 proposal?
MR. GEISS: As I have read this and as I
19 understand it, it would not affect us today. There
was some question, I believe, to the effect of
20 retroactive. We still don't believe a retroactive
would affect us.
21 Currently, we are a fairly rural area. There
is farms to the north. The facility is sited on top
22 of a closed landfill. There are not many other uses
for that landfill, so if it was a retroactive and at
23 a later date one of these facilities that required
an eighth-mile setback was located within that
24 eighth mile and that would displace the facility,
that would be an economic hardship for us because we
L.A. REPORTING (312) 419-9292
33
1 do not feel that we could relocate this site and
operate the facility at a profit because of the
2 current competitive economic state of the industry.
MR. McGILL: Okay. I would just like to note
3 one thing for clarification. This is on Page 37 of
the board's first notice opinion and order. It's in
4 a footnote. A similar concern that you just
expressed was raised by the city of Lake Forest, and
5 the board clarified in that footnote, and I will
just quote: To clarify, the proposed first notice
6 amendments to 35 Illinois Administrative Code
830.203(c) are siting requirements. A compost
7 facility sited in compliance with these requirements
would not violate them because a health care
8 facility, for example, is thereafter constructed
within one-eighth of a mile.
9 MR. GEISS: Thank you. That clarifies my
question then.
10 MS. HENNESSEY: Maybe what you are suggesting
to us is that needs to be set forth in the
11 regulation itself?
MR. GEISS: Well, as I read the regulation,
12 that was a question that came to mind, and me being
a layman and an operations manager and not a lawyer,
13 that's the questions that popped into my mind.
MS. HENNESSEY: Does your facility have any
14 current plans to expand?
MR. GEISS: Our site is approximately 20 acres,
15 and currently, it meets all the needs for our
customers, so we don't have any immediate future
16 plans to expand the site.
MS. HENNESSEY: Assuming you were to expand,
17 would this regulation affect you?
MR. GEISS: Today it wouldn't because today
18 there is corn fields to the north of us. And if
that cornfield, for example, is developed and a
19 facility of such nature that would require a setback
was placed within that setback, then that could
20 affect an expansion.
MS. HENNESSEY: How large is your site? You
21 said it's 20 acres?
MR. GEISS: Approximately 20 acres.
22 MS. HENNESSEY: Okay. Thank you.
MR. GEISS: Thank you.
23 MR. McGILL: Are there any other questions for
this witness?
24 Seeing none, let's just go off the record for a
moment.
L.A. REPORTING (312) 419-9292
34
1 (Whereupon, a discussion was held off
the record.)
2 MR. McGILL: Let's go back on the record.
I would like to thank you for participating
3 today.
MR. GEISS: Thank you for having the hearing.
4 MR. McGILL: Is there anyone else who would
like to testify today?
5 MS. FRANZETTI: I do have a question based on
the last comment made by you on your footnote if I
6 could ask that
MR. McGILL: Maybe I could explain the context
7 of this proceeding. The people you see before you
up here are not the entire board, so we can't really
8 speak on behalf of the board.
MS. FRANZETTI: I understand.
9 MR. McGILL: The board speaks through its
written opinions and orders, but we certainly
10 welcome comments and questions.
MS. FRANZETTI: I will put it in the form of a
11 comment.
MR. McGILL: In the form of public comment,
12 that would be fine.
MS. FRANZETTI: I should not have called it a
13 question.
My name is Susan Franzetti. I'm with Gardner,
14 Carton, & Douglas here in Chicago.
The confusion that I think starts getting
15 created when you --
MR. McGILL: I'm sorry. Are you posing a
16 question? We don't have a witness right now.
MS. FRANZETTI: No, no. I just want to make a
17 comment
MR. McGILL: If you are testifying, we need to
18 get you sworn in, so why don't you step up, if you
don't mind?
19 MS. FRANZETTI: I will stand right here. It's
not going to take that long.
20 MR. McGILL: Okay. Why don't we swear in the
witness?
21 (The witness was duly sworn.)
MR. McGILL: Could you just again state the --
22 MS. FRANZETTI: Susan Franzetti for Gardner,
Carton, & Douglas for the city of Lake Forest.
23 MR. McGILL: Thank you.
MS. FRANZETTI: I think the confusion that
24 starts to get created -- and I just want to point it
out. I know we can address this in comments, but I
L.A. REPORTING (312) 419-9292
35
1 think it just got underscored by the exchange with
the last witness, and that is that the footnote on
2 Page 37 does clarify things with respect to the
proposed first notice regulation that the setback is
3 a siting requirement and, therefore, for an existing
facility. If a protected facility or facility of
4 concern -- we have used a few different terms for
those today -- gets located within that new setback
5 requirement, that wouldn't cause the facility to
close down. I think that's clear.
6 However, when you start talking about
retroactivity, that's when I think it becomes very
7 unclear because let's just assume if you made this
retroactive and at some point, let's say at renewal,
8 let's assume that, an existing facility violates the
new revised setback requirement, I believe they
9 would have to close down. However, under this
footnote statement, an existing facility shouldn't
10 have to close down if a protected facility comes to
be located within the setback. It doesn't seem to
11 make sense. It doesn't add up in terms of how this
footnote is written and then when you start to talk
12 about retroactivity because, in fact, then unless
this footnote were to then change, you have this
13 incongruous situation whereby an existing facility
that wouldn't meet this proposed new setback
14 requirement would have to close, but a new one that
met it at one time but now something locates within
15 that setback -- one-eighth-of-a-mile setback would
not have to close.
16 I can't rationalize that, so I just wanted to
make that comment, and I know we can address that in
17 public comment, but I think that's why you have some
of this uncertainty about what happens then with an
18 existing facility. I think it's because of the
specter of retroactively when you combine it with
19 this footnote.
Thank you.
20 MR. McGILL: Thank you. And I just would like
to ask, is there anyone who has a question for this
21 witness?
MS. HENNESSEY: Ms. Franzetti, just to clarify
22 your comment, are you raising the similar issue that
the agency raised which is suppose we apply this a
23 retroactively. Do we need to basically go back and
look at when the facility was originally sited and
24 see if in one one-eighth of a mile there were any of
these protected facilities? Is that the inquiry
L.A. REPORTING (312) 419-9292
36
1 that we should undertake? Or will it be looking at
the time of renewal? At the time that a permit is
2 renewed, do we need to then determine if there are
any protected facilities within the one-eighth-of-a-mile
3 setback?
MS. FRANZETTI: It's certainly a related point,
4 but it's not the same point that I think I'm trying
to make. There would seem to be -- when you get
5 into retroactivity, there would seem to be an
arbitrariness introduced between how the regulation
6 works for a brand new facility that only has to meet
it at the beginning and then it can be violated
7 afterwards by things moving in to its area versus
the existing facility. That's the point I'm trying
8 to make. They are related points. I'm not sure
they are identical.
9 MS. HENNESSEY: Okay. I understand. Thank
you.
10 MR. McGILL: Are there any further questions
for this witness?
11 Seeing none, I will ask again, is there anyone
else who wishes to testify today?
12 Seeing no response, I will move on to a few
procedural matters to address before we adjourn.
13 Why don't we go off the record for a moment?
(Whereupon, a discussion was held off
14 the record.)
MR. McGILL: Let's go back on the record.
15 Public comments must be received by the clerk
of the board no later than 4:30 on September 4th,
16 1998. The mailbox rule does not apply to this
filing.
17 Anyone may file public comments. These public
comments must be filed with the clerk of the board.
18 Public comments should reference the docket number
of this rulemaking, R97-29, as well as the name,
19 address, and affiliation, if any, of the
commentary.
20 If you are on the service list, your public
comment must be simultaneously delivered to all
21 persons on the service list. You should contact me
or the clerk's office to make sure you have the
22 current service list.
Copies of the transcript of today's hearing
23 should be available at the board here in Chicago by
August 12th, 1998. At the present time, we cannot
24 put transcripts on the board's home page on the
Worldwide Web. Accordingly, for the time being, we
L.A. REPORTING (312) 419-9292
37
1 will provide an electronic copy of this transcript
on disk free of charge.
2 Are there any other matters that need to be
addressed at this time?
3 MS. HENNESSEY: I would just like to, again,
thank everyone for participating. I wish we had as
4 much public participation in all of our
rulemakings. Some great points have been raised,
5 and we would take them back and give them some
thought and look forward to your public comments.
6 MR. McGILL: Thank you.
Are there any other matters that need to be
7 addressed at this time?
Seeing none, I would like to also thank
8 everyone for their participation today. This
hearing is adjourned.
9 (Whereupon, the hearing was adjourned
at 11:40 a.m.)
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L.A. REPORTING (312) 419-9292
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1 STATE OF ILLINOIS )
) SS.
2 COUNTY OF COOK )
3
4 I, CARYL L. HARDY, a Certified Shorthand
5 Reporter doing business in the County of Cook and
6 State of Illinois, do hereby certify that I reported
7 in machine shorthand the proceedings at the hearing
8 of the above-entitled cause.
9 I further certify that the foregoing is a
10 true and correct transcript of said proceedings as
11 appears from the stenographic notes so taken and
12 transcribed by me.
13
14
15
16
17 CSR No. 084-003896
18
19 SUBSCRIBED AND SWORN TO
before me this ____ day
20 of ___________, A.D., 1998.
21 _____________________________
Notary Public
22
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L.A. REPORTING (312) 419-9292