1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

3 IN THE MATTER OF:

4 MINERAL SOLUTIONS, INC.,

5 Complainant,

6 vs. No. PCB 03-039

7 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

12 The following is a transcript of the

above-entitled matter taken stenographically before ANN

13 MARIE HOLLO, CSR, RPR, RMR, a notary public within and

for the County of Montgomery and State of Illinois.

14 Said hearing was taken on the 9th day of December A.D.,

2002, commencing at 9:00 o'clock a.m. at the 600 South

15 Second Street, Hearing Room 403, Springfield, Illinois.

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1 APPEARANCES:

2 ILLINOIS POLLUTION CONTROL BOARD

600 South Second Street

3 Suite 402

Springfield, Illinois 62704

By: Kathleen Crowley, Hearing Officer

6 Mohan, Alewelt, Prillaman & Adami

1 North Old Capitol Plaza

7 Suite 325

Springfield, Illinois 62701

8 By: Patrick D. Shaw, Esq.

9 Appearing on behalf of the Petitioner

Illinois Environmental Protection Agency

11 1021 North Grand Avenue East

Springfield, Illinois 62794

12 By: John J. Kim, Esq. Esq.

Appearing on behalf of the Respondent

ALSO IN ATTENDANCE: Gina Roccaforte

E X H I B I T S

16 Marked

Group Exhibit Nos. 1 and 2 9

17 Group Exhibit No. 3 21

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1 HEARING OFFICER CROWLEY: Good morning.

2 This is a hearing being conducted by the Illinois

3 Pollution Control Board in the matter of PCB 03-039,

4 Mineral Solutions, Inc. versus the Illinois

5 Environmental Protection Agency.

6 My name is Kathleen Crowley, and I am the

7 hearing officer today.

8 This is a proceeding concerning the appeal

9 of a condition on a permit issued by the Illinois

10 Environmental Protection Agency to Mineral Solutions on

11 August 26, 2002. In permit appeal proceedings, the

12 petitioner challenging the condition has the burden of

13 proof, and his burden of proof is proving that the

14 condition added by the agency was not necessary to

15 accomplish the purposes of the Environmental Protection

16 Act or the Board regulations.

17 This case does have a decision deadline,

18 which we will be discussing later. Currently that

19 decision deadline is January 23rd. The board does

20 anticipate receipt of all documents. It needs to make a

21 decision no later than December 23rd.

22 That's really all I have for opening

23 remarks. So I will ask the attorneys to make their

24 appearances please.

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1 MR. SHAW: Patrick Shaw for Mineral

2 Solutions, Inc.

3 MR. KIM: John Kim for the Illinois

4 Environmental Protection Agency.

5 HEARING OFFICER CROWLEY: And do you care

6 to introduce your colleague?

7 MR. KIM: Yes. With me is Gina (sp)

8 Roccaforte, R-o-c-c-a-f-o-r-t-e, who was not making an

9 appearance. She is simply here to observe.

10 HEARING OFFICER CROWLEY: Thank you. And

11 for the record, I will note that we do have some members

12 of the public in attendance today. Thank you.

13 Opening statement? Any?

14 MR. SHAW: Well, maybe an opening

15 administrative matter.

16 HEARING OFFICER CROWLEY: Great.

17 MR. SHAW: As the hearing officer knows,

18 the parties have been discussing the documents to be

19 included in the record. The agency had previously filed

20 with the board the document entitled, the parties are in

21 agreement to supplement that record, but we're not in

22 agreement with how much to supplement the record with.

23 It if pleases the hearing officer, I can

24 present the agreed supplemental part of the record, and

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1 we can go on to maybe our -- actually, I'll give it to

2 you both here, the supplemental record and petitioner's

3 motion to supplement the record.

4 And I believe the supplement to the record

5 is probably any of the documents that were in the record

6 as being admitted with the intent to reserve argument on

7 the legal relevance to be based on the documents.

8 HEARING OFFICER CROWLEY: If I can just

9 make sure that I'm understanding this correctly. The

10 agency submitted to the board the agency administrative

11 record on November 12th. That was a bates number

12 stamped document, pages 1 to 133. Agreed supplemental

13 record document appears to continue -- to continue the

14 bates numbers from 132 to 251.

15 So that's material that you both agree

16 belongs in this record?

17 MR. SHAW: Yes. It sounds to me like the

18 bates stamping is -- is there an overlap here? I may

19 not have the last page of the document, John. I

20 don't --

21 MR. KIM: Well, the administrative record

22 that was filed by the agency went up to page 131 bate

23 stamp, as the hearing officer pointed out.

24 MR. SHAW: Did I -- maybe I misheard. I

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1 thought she said up to 132.

2 MR. KIM: Your agreed motion begins on 132,

3 which is correct.

4 HEARING OFFICER CROWLEY: Okay. And then

5 we have an additional motion by petitioner to supplement

6 the record with a discovery deposition of William Child

7 taken in Brockman versus IEPA, PCB 93-162. Is that an

8 agreed motion?

9 MR. KIM: That is not an agreed motion.

10 And I don't want to -- you know, Mr. Shaw, I'm sure will

11 present his arguments as to why that document should be

12 in.

13 But what I was going to ask before we got

14 to that document, I think that the parties in presenting

15 the agreed supplement to the record, supplemental record

16 to the board, are also seeking to have the board admit

17 both the administrative record and now the agreed

18 supplemental record into evidence, so that we can make

19 reference to those documents through briefing admitted

20 documents. Is that correct?

21 MR. SHAW: Correct.

22 MR. KIM: Okay.

23 HEARING OFFICER CROWLEY: That's fine that

24 the documents are entered as exhibits.

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1 I will just add for the benefit of our

2 audience today, the board is required to determine

3 whether the agency's imposition of the condition was

4 appropriate based on the administrative record that the

5 agency had before it. So that's why there will be some

6 discussion as to whether some bits of information were

7 actually before the agency as part of its record or

8 whether they were not, so.

9 MR. KIM: And as to the motion to

10 supplement, the agency objects to the motion of the

11 request. You know, I would certainly defer to Mr. Shaw

12 to make his arguments as to why he thinks the documents

13 should be in, and I'd be happy to respond.

14 HEARING OFFICER CROWLEY: Mr. Shaw?

15 MR. SHAW: I want to make sure we get all

16 our agreements together, and now we can start with our

17 disagreements.

18 HEARING OFFICER CROWLEY: I appreciate

19 that.

20 MR. SHAW: The document that is the subject

21 of the motion to supplement the record, as the hearing

22 officer noted, is a deposition of William Child taken

23 from another case.

24 The issue here, as determined by the

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1 language of section 40D of the Act, which says that in

2 reviewing the denial of any condition of a permit issued

3 by the agency pursuant to rules and regulations adopted

4 under section C of 9.1 of this Act, the decision of the

5 board will be based exclusively on the record before the

6 agency, including the record of the hearing, based and

7 held pursuant to paragraph F3 of section 39, unless the

8 parties agree to supplement the record.

9 The Boards' procedural rules accordingly

10 also state that the hearing shall be based exclusively

11 on the record similar to the Act.

12 The reason the deposition is part of the

13 record -- and I also note that Mineral Solutions, Inc.

14 noticed up the permit review to come here to testify

15 today. After talking with the agency, we said that it

16 would not be necessary, that the basic facts supporting

17 our request are already in the record. It was admitted

18 here today. On page 76 of the administrative record,

19 there was a letter from --

20 HEARING OFFICER CROWLEY: Just one moment

21 please.

22 MR. SHAW: Sure.

23 HEARING OFFICER CROWLEY: To make sure that

24 we have a clear record here, the administrative record

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1 is filed by the agency in November. I will be marking

2 that as Group Exhibit 1, and that will be bate stamps

3 number -- pages number 1 to 131.

4 I will mark as Exhibit Number 2 the agreed

5 motion to -- the agreed supplemental record filed

6 today. And with the agency -- initial agency record,

7 I'm going to also include the notice of filing, which

8 does have the index to that record, and we have an index

9 of sorts to the supplemental record, which is why I've

10 divided them into two exhibits.

11 [Group Exhibit Numbers 1 and 2

12 were marked for identification.]

13 HEARING OFFICER CROWLEY: So please go

14 ahead, Mr. Shaw. And what page are you referring to?

15 MR. SHAW: My reference will solely be

16 Exhibit 1, and page 76 will be the first reference.

17 And just a little bit of background here.

18 At some point, the general review of the record will

19 show that there were some discussion between the agency

20 and Mineral Solutions, Inc. a few different times during

21 the permit review.

22 On July 26, 2002, RAPPS Engineering, a

23 consultant for Mineral Solutions, Inc., requested a

24 meeting with the agency. And specifically the second

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1 paragraph of that letter states we respectfully request

2 that you convene this meeting at your office. It is

3 very important that Bill Child be in attendance, since

4 he is familiar with the legislative intent of the 39C

5 provision at issue. And 39C is the basis for denial of

6 the permit in this case.

7 A few days later, there was a large brief

8 in the file, which I guess has my name on it. It starts

9 at page 78. It goes for a good length.

10 On page 89 of Group Exhibit 1, reference is

11 made to the deposition of William Child with respect to

12 the legislative history. Specifically a statement is

13 made that William Child will later testify that the

14 purpose of this amendment was to terminate permits of

15 Brockman Landfill and one or two other closed dormant

16 landfills. See Child's deposition from Brockman v.

17 IEPA, Number 3-94-075.

18 HEARING OFFICER CROWLEY: Please excuse

19 me. That page again was?

20 MR. SHAW: Page 89.

21 HEARING OFFICER CROWLEY: Thank you.

22 MR. SHAW: It's in the last full

23 paragraph.

24 HEARING OFFICER CROWLEY: Thank you.

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1 MR. SHAW: Two other items in the record.

2 Page 74 of Group Exhibit 1 shows that Illinois EPA

3 meeting sign-in sheet in which Bill Child signed is

4 present -- his presence at that meeting. For the

5 record, I was present at that meeting as well.

6 The following page of Group Exhibit 1, page

7 75, indicates that the history of section 39C in the Act

8 was discussed. Although details of that discussion are

9 not set forth.

10 The scope of this review is the agency's

11 record. The agency's record -- I think we need to

12 distinguish two different items. One is a bureaucratic

13 or administrative record that the Illinois Environmental

14 Protection Agency keeps for any permit it reviews or any

15 item under its review. It does not duplicate other

16 permit files. It doesn't put in everything in that

17 record that it has somewhere else that it reviewed.

18 If you look through this record or probably

19 any other record, you could see that the agency, in

20 reviewing any permit application, reviewing other

21 permits for that facility reviews other documents. It

22 doesn't copy them and place them into a new file.

23 So what we have here is a distinction

24 between an agency administrative record and what was in

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1 the agency's purview, thoughts, insight, knowledge at

2 the time the decision was made.

3 At the time the decision was made,

4 Environmental Protection Agency had a deposition of

5 William Child that had been taken in a previous

6 proceeding. Let's see. That deposition was dated

7 1993. It was not something that they reviewed out of

8 their own course. I don't think there's anything in the

9 record to indicate that their permit reviewer would have

10 looked at another facility's record. They could have.

11 It's certainly up to them. But it was referenced in

12 materials submitted by permit applicant with respect to

13 a legal argument that was being made about the purpose

14 of this provision.

15 I'd also note that this document, I

16 believe, is in the Pollution Control Board's record,

17 because I believe it was submitted in the Brockman v.

18 IEPA PCB decision from several years ago. I haven't

19 personally reviewed that or sought to determine whether

20 or not it's still there. But my records show it was

21 submitted to the board in that case. So this document

22 is actually before the board or in the board's records

23 also.

24 I believe that this document constitutes

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1 what we considered the agency record. I don't think

2 that it is unfair to present something that was given to

3 them and given the agency opportunity to look at.

4 Whether or not they looked at it themselves, I think is

5 somewhat besides the course. They were put on notice

6 that this deposition is something that we found to be

7 important enough to reference in a legal document to say

8 look at it if you want. And also to request that Bill

9 Child be present at the meeting so they can talk about

10 this provision.

11 So we would just respectfully ask that the

12 deposition be admitted into the record. Unless there

13 are any questions, I'll let John respond.

14 HEARING OFFICER CROWLEY: If I may ask just

15 one question. Was the deposition submitted to the

16 agency along with your brief?

17 MR. SHAW: No, it was not.

18 MR. KIM: Thank you.

19 In response, I'm probably going to repeat

20 back the statements that Mr. Shaw just made, because

21 actually I think they support the agency's contention

22 that this document should not be included as part of the

23 record.

24 He noted that, first of all, Mr. Child, who

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1 is the deponent in the transcript that he's seeking to

2 supplement, Mr. Child was asked to be in attendance at a

3 meeting related to Mineral Solutions. Well, that

4 meeting took place in 2002. The deposition was taken in

5 1993. So some nine years have passed.

6 There's no indication or there's no

7 evidence presented or before the board that what was

8 testified to in the deposition transcript, which was a

9 discovery deposition, not an evidentiary deposition, was

10 in any way, shape or form parroted back or repeated or

11 reiterated in the meeting in 2002. There's no evidence,

12 as a matter of fact, as to what Mr. Child said at all

13 during that meeting.

14 Mr. Shaw stated that his memo that's part

15 of the agreed -- that's part of the administrative

16 record does make reference to the deposition, but as the

17 hearing officer just pointed out, that deposition

18 transcript was not included as an attachment to the

19 memo. There's no presence of that transcript in any

20 document that was submitted by Mineral Solutions to the

21 agency as part of this -- part of the permit application

22 that led to the decision that's under dispute.

23 The scope of review in this case is limited

24 to the administrative record. The administrative record

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1 that the agency provided and that we have agreed to

2 supplement contains documents solely related to Mineral

3 Solutions and solely documents that were relied upon or

4 reviewed by the agency permit reviewer in making the

5 decision at issue.

6 As Mr. Shaw stated, there's no evidence

7 that the permit reviewer reviewed the deposition

8 transcript. In fact, if they in that deposition

9 transcript had been reviewed or relied upon in some

10 fashion, it would have been included as part of the

11 administrative record. It was not.

12 The fact that this document may or may not

13 exist in some file before the board really is of no

14 consequence, because, again, just because a document

15 exists in some fashion in a separate file in a board

16 proceeding doesn't mean that it's automatically

17 qualified to be admitted as a document here.

18 What it comes down to is, this document

19 does not meet the standard, and it does not meet the

20 definition of a document that should be included as part

21 of the administrative record. It was not relied upon.

22 It was not reviewed. And as a result, it should not be

23 considered by the Board. And reviewing the agency's

24 decision to do so would be unfair, because it's taking

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1 into account something which was never considered as

2 part of the decision making process.

3 HEARING OFFICER CROWLEY: Mr. Shaw, any

4 response?

5 MR. SHAW: Well, I respond that the

6 standard that the agency would like to see established

7 here is the only information they relied upon. It's a

8 one-sided standard as to consider what they want to

9 consider, and don't consider what they don't want to

10 consider, and don't have to answer to the board or

11 anyone else. They considered or relied upon what they

12 wanted to rely upon, and that's fair enough.

13 We also asked them to look at this or

14 consider this, and they chose not to. That's fine.

15 It's a lengthy document. I don't think that their

16 decision not to rely upon it, to elect not to look at it

17 should be binding on the board or anybody else.

18 I think that these arguments that we made

19 are good. And I have a feeling that down the road, the

20 board may want to look at the deposition to fully

21 consider what was referenced there in the record.

22 I'd also say that I think it would be an

23 unfortunate standard that the deposition would need to

24 be physically attached to something given to the

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1 agency. And I can understand if the agency wasn't able

2 to come up with the document if it's something that is

3 not in their possession or their knowledge.

4 But as you can tell here, this is

5 a -- well, 51-page document. We've got a lot of

6 environmental practices before the board and the agency

7 which are intended to reduce paper load, but there's a

8 lot of paperwork in this line of business, and right now

9 I think there's a docket open to try to get even less

10 paper.

11 The procedural requirement of putting a

12 document and attaching it, which is already in the

13 possession of the agency, would seem to be poor

14 environmental sense and not very practical.

15 They elected not to rely upon this document

16 and review it. I think that's fine. That doesn't mean

17 I don't think it should not be admitted into the

18 record.

19 What was stated in Joliet Sand and Gravel

20 Company Case, PCB 86-159, was to the extent that the

21 agency has relied upon information beyond what was

22 contained in the application, such information must be

23 included in the permit record filed with the board. If

24 it is not, the applicant may properly submit such

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1 information to the board during the course of the

2 board's hearing.

3 And additionally, if there was information

4 in the agency's possession, upon which it reasonably

5 should have relied, the applicant may also submit such

6 information to the board for the board's consideration.

7 I know from our previous conversations,

8 there's probably other pollution control board cases

9 that go the other way. There's a fairly gray area here

10 in which a lot of effort has been put forth to grapple

11 with what was in the knowledge of the agency, what is

12 that intangible item. I think this one clearly should

13 fall into the category of something that is easily

14 obtainable to be included in the record.

15 So I would again request that the motion to

16 supplement the record be granted.

17 MR. KIM: I just have a very short response

18 just on one specific point.

19 Mr. Shaw stated that this is something that

20 the agency should have reviewed because it was made

21 reference to in his memo. And I think that when you're

22 speaking of unfair standards, I think that creates a

23 very difficult problem for the agency. Just because

24 someone makes reference to a document or a treatise or a

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1 publication of some kind, or what have you, and what is

2 essentially an offhanded manual without including a

3 citation to it or without including a copy of it, I

4 don't think that that means it is incumbent upon the

5 agency to track down that document to make it a part of

6 the record and to review that document to see if there's

7 anything that should or should not be considered.

8 By way of example -- and I think, actually,

9 Ms. Crowley, you might have been the hearing officer on

10 this case. There was a case that I was involved with

11 where there was a reference made to a textbook as part

12 of a technical document. That was submitted to the

13 board. And much issue was made about that book.

14 In preparation for hearing, the agency

15 attempted to try to find a copy of this textbook that

16 was referenced. As it turned out, I think there was

17 only one copy of that book in downstate Illinois that we

18 could find that was in a library. And we had to pull a

19 lot of strings just to borrow the book for a little

20 while so that we could read and see what it was, before

21 we could even make any kind of response of argument at

22 hearing.

23 It's an unfair standard to set up. And if

24 a petitioner wants to make something a part of the

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1 record, if they want to have us rely upon it, and almost

2 every instance that I can think of, they won't include a

3 copy of what they're referring to. And I'm sure in this

4 case, there have been, you know, photographs and other

5 documents that were submitted by Mineral Solutions in

6 support of their permit application.

7 If someone just says, "Well, we know that

8 you can get a hold of that, it's in a case that is

9 admittedly not in this case, but it's in a case that's

10 nine years old, and you can track it down, and you can

11 now make it part of the record," that's an undue burden

12 upon us. We don't have the time to try to track down

13 all those documents, and to the point that we are going

14 to be penalized if we fail to do so.

15 So I think that certainly on that point

16 alone, that it's an unfair burden to place on the agency

17 and is not something that should be relied upon in

18 making the decision on this document.

19 HEARING OFFICER CROWLEY: Thank you for the

20 record.

21 The case Mr. Kim was just referring to was

22 I believe Selial (sp) versus the IEPA. I do not recall

23 the docket number. I believe it was an underground

24 storage tank reimbursement case, for whatever it may be

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1 worth.

2 Mr. Shaw, I'm going to deny the motion.

3 Had the document been submitted to the agency along with

4 your brief, it clearly would have been part of the

5 agency record.

6 Given that this was a deposition given in

7 an unrelated case some 10 years before, given the fact

8 that you did not submit a copy of the document, I do not

9 believe that it is properly part of the agency record.

10 However, given the fact that this is a case

11 with a decision deadline, a very tight decision

12 deadline, and given the fact that we can't go back and

13 have another hearing should the board believe that this

14 should have been a part of the record, I am willing to

15 accept it as an offer of proof.

16 MR. SHAW: We would appreciate that. Thank

17 you.

18 HEARING OFFICER CROWLEY: So to keep the

19 record clear, we'll mark this as -- we'll mark it as

20 Group Exhibit 3. It's been offered, and it's accepted

21 as an offer of proof, but it is not accepted as an

22 exhibit.

23 [Group Exhibit Number 3 was marked for

24 identification.]

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1 MR. SHAW: That is all the information or

2 matters we wish to address from the petitioner's side of

3 the aisle.

4 MR. KIM: We didn't have anything else, I

5 think, other than just the administrative matter of

6 setting up the briefing schedule.

7 And Mr. Shaw and I discussed this. I

8 believe -- I'm sure he will correct me if I misstate

9 this.

10 MR. SHAW: I forgot my calendar.

11 MR. KIM: What we discussed was submitting

12 post-hearing briefs concurrently on December 16th. And

13 I would ask that the board allow fax filing of that

14 document, given the expedited -- --.

15 HEARING OFFICER CROWLEY: I have authority

16 to allow fax filing.

17 MR. KIM: Thank you. And then we would

18 also then in turn file the current response briefs on

19 December the 23rd, again, taking advantage of fax

20 filing.

21 HEARING OFFICER CROWLEY: Yes.

22 MR. KIM: Okay.

23 HEARING OFFICER CROWLEY: So am I correct

24 that you're waiving both any opening or closing remarks,

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1 that you're saving it all for the briefs?

2 MR. SHAW: Yes.

3 MR. KIM: Yes.

4 HEARING OFFICER CROWLEY: At this point, I

5 will ask whether any members of the public wish to make

6 statements. If you wish to make statements today, those

7 statements would have to be made under oath and would be

8 subject to cross examination.

9 If you care to alternatively, you

10 could -- or additionally, you can file written

11 comments. The written public comments would have to be

12 received by the board also no later than December 23rd.

13 So I will ask while we're on the record,

14 would any of you gentlemen care to make a statement

15 today? I'm seeing negative nods.

16 That would appear to be all of the business

17 that we have today. There have been no witnesses, so

18 there are no credibility issues.

19 I'm looking forward to reading some

20 fascinating briefs. Thank you very much.

21 [End of hearing.]

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COURT REPORTER'S CERTIFICATION

I, Ann Marie Hollo, Certified Shorthand

3 Reporter, Registered Professional Reporter, Registered

Merit Reporter of the State of Illinois and Notary

4 Public, do hereby certify that said hearing before the

Illinois Pollution Control Board and Illinois Pollution

5 Control Board Hearing Officer Kathleen Crowley, took

place on the 9th day of December A.D., 2002, and held at

6 the Illinois Pollution Control Board Room, 600 South

Second Street, Room 403, Springfield, Illinois.

I do hereby certify that I did take

8 stenographic notes of the proceedings and that said

notes were reduced to typewritten form under my

9 direction and supervision.

10 I do further certify that the attached and

foregoing is a true, correct and complete copy of my

11 notes and that said testimony is now herewith returned.

12 I do further certify that I am not related

in any way to any of the parties involved in this action

13 and have no interest in the outcome thereof.

14 Dated at Litchfield, Illinois, this 9th day

of December, A.D. 2002 and given under my hand and seal.

15 My commission expires April 5, 2006.

16 ____________________________

Ann Marie Hollo, CSR, RPR, RMR

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