AS97002B.PDF

1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

5 IN THE MATTER OF:

7 Petition of

Chemetco, Inc. for

8 an Adjusted Standard from 35 Ill. No. AS 97-002

9 Adm. Code 720.131 (a) and (c)

13 Supplemental hearing held on August 26th,

14 1997, at 9:55 a.m., at the State Regional Office

15 Building, IDOT Classroom, 1100 East Port Plaza

16 Drive, Collinsville, Illinois, before the Honorable

17 Michael L. Wallace, Hearing Officer.

21 Reported by: Darlene M.

Niemeyer, CSR, RPR

CSR License No.: 084-003677

23 KEEFE REPORTING COMPANY

11 North 44th Street

24 Belleville, IL 62226

(618) 277-0190

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A P

P E A R A N C E S

STATE OF ILLINOIS, OFFICE OF THE ATTORNEY

3 GENERAL

BY: James Lee Morgan, Esq.

4 Senior Assistant Attorney General

Environmental Bureau

5 500 South Second Street

Springfield, Illinois 62706

6 On behalf of the People of the State of

Illinois.

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

8 BY: Christopher P.

Perzan, Esq.

Assistant Counsel

9 Bureau of Land, Division of Legal Counsel

2200 Churchill Road

10 Springfield, Illinois 62794-9276

On behalf of the Illinois EPA.

ARMSTRONG, TEASDALE, SCHLAFLY & DAVIS

12 BY: George M.

Von Stamwitz, Esq.

Richard L. Waters, Esq.

13 One Metropolitan Square

St. Louis, Missouri 63102

14 On behalf of

Chemetco, Inc.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 I N D E X

2 WITNESS PAGE NUMBER

3 David

Hoff 6, 10, 45, 58

6 E X H I B I T S

7 NUMBER MARKED FOR

I.D. ENTERED

8 Exhibit 18 -- 61

9 Exhibit 19 -- 61

KEEFE REPORTING COMPANY

Belleville, Illinois

1 P R O C E

E D I N G S

2 (August 26, 1997; 9:55 a.m.)

3 HEARING OFFICER WALLACE: Pursuant to the

4 direction of the Illinois Pollution Control Board,

5 I now call Docket AS 97-002. This is the matter of

6 the Petition of

Chemetco, Inc. seeking an Adjusted

7 Standard under 35 Illinois Administrative Code

8 720.131, Sections (a) and (c).

9 May I have appearances for the record,

10 please. For the Petitioner?

11 MR. VON STAMWITZ: George M.

Von

12 Stamwitz, with the law firm of Armstrong,

Teasdale,

13 Schlafly & Davis, on behalf of the Petitioner,

14 Chemetco.

15 MR. WATERS: Richard L. Waters, from

16 Armstrong,

Teasdale, on behalf of the Petitioner,

17 Chemetco.

18 HEARING OFFICER WALLACE: For the Agency,

19 please?

20 MR. PERZAN: For the Agency, Christopher

21 Perzan.

22 MR. MORGAN: James Morgan, for the

23 Illinois Attorney General's Office.

24 HEARING OFFICER WALLACE: All right. Let

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Belleville, Illinois

1 the record reflect that there are no other

2 appearances at today's hearing.

3 This matter was previously heard, I

4 believe, March 11th of 1997. Briefs were filed

5 and, I believe, in response to post hearing

6 filings, the Pollution Control Board entered an

7 order on May the 15th sending this back to hearing

8 to clarify certain of those motions to add

9 information to the hearing. Basically it looks

10 like the Board wants the Petitioner to supplement

11 the record with an English translation of certain

12 Spanish documents and certain other agreements.

13 There was an affidavit of Mr. David

Hoff

14 that the Board felt that would not allow the Agency

15 to properly cross-examine so, therefore, they sent

16 it back to hearing. Notice was sent out and we are

17 here. All right. There were no preliminary

18 matters before we went on the record.

19 Mr.

Von Stamwitz, do you have an opening

20 argument or statement that you wish to make at this

21 time?

22 MR. VON STAMWITZ: We would waive any

23 opening statement and proceed directly to

24 testimony, if it pleases the Board.

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Belleville, Illinois

1 HEARING OFFICER WALLACE: All right. Mr.

2 Perzan?

3 MR. PERZAN: That's fine with me.

4 HEARING OFFICER WALLACE: And Mr.

5 Morgan?

6 MR. MORGAN: That's fine, Your Honor.

7 HEARING OFFICER WALLACE: All right. Mr.

8 Von Stamwitz, do you have a witness?

9 MR. VON STAMWITZ: The Petitioner will

10 call Mr. David

Hoff.

11 (Whereupon the witness was

12 sworn by the Hearing Officer.)

13 HEARING OFFICER WALLACE: All right. You

14 may proceed.

15 D A V I D H O F

16 having been first duly sworn by the Hearing

17 Officer,

saith as follows:

18 DIRECT EXAMINATION

19 BY MR. VON STAMWITZ:

20 Q Would you state your name for the record,

21 please.

22 A David

Hoff.

23 Q And, Mr.

Hoff, are you employed, sir?

24 A Yes.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q Where are you employed?

2 A

Chemetco.

3 Q In what capacity?

4 A President.

5 Q You testified previously on March 11th of

6 1997; is that correct, in this hearing?

7 A That's correct.

8 Q I am going to hand you a group of

9 documents that have been labeled Petitioner's

10 Exhibit 18, and I am going to ask you to look over

11 those documents and tell me, in their entirety,

12 what those documents are?

13 A These are documents from various

14 governmental agencies giving approval to ship the

15 copper tin oxides into Spain.

16 Q Again, that relates to what transaction

17 that

Chemetco has with the Spanish entity?

18 A The shipping of material to Spain.

19 Q Who was the customer in Spain?

20 A Oh,

Elmet. I am sorry.

Elmet.

21 Q Now, when that -- was that document

22 received by

Chemetco in the ordinary course of

23 business?

24 A I am sorry?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q Was that -- was a form of this document

2 received by

Chemetco in the ordinary course of

3 business?

4 A Yes, it was.

5 Q When it was received by

Chemetco, what

6 language was it in?

7 A Spanish.

8 Q Now, I am going to direct you to the

9 exhibit, particularly to the portions that are

10 marked 18-1S, and then there are other documents,

11 18-2S. As you look through the document the pages

12 that are so numbered, what are they?

13 A Those particular documents are in

14 Spanish.

15 Q Then if you look at the portions of the

16 document labeled 18-1E and so forth, what are those

17 pages?

18 A Those pages of the document are in

19 English.

20 Q I will direct you to the first page of

21 the document that is just labeled 18, and what is

22 that page, please?

23 A That is -- the

Caldon (spelled

24 phonetically) International Communications,

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1 Incorporated, translated this document from Spanish

2 to English. That is the certification that they

3 did that.

4 Q Did you authorize

Chemetco to pay for

5 that service after receiving the order from the

6 Board?

7 A Yes, I did.

8 Q I am next going to hand you what has been

9 marked Petitioner's Exhibit Number 19, and ask if

10 you can identify that document, please?

11 A This document is the current agreement

12 with

Elmet and -- between

Elmet and Chemetco.

13 Q What is the date of that document,

14 please?

15 A April 1, 1997.

16 Q Was that executed by representatives from

17 Chemetco after the last hearing in this matter on

18 March 11, 1997?

19 A Yes, it was.

20 Q Is that contract different in any way

21 than the relationship between the parties in the

22 previous year?

23 A No.

24 MR. VON STAMWITZ: We have no further

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Belleville, Illinois

1 questions.

2 HEARING OFFICER WALLACE: All right.

3 MR. PERZAN: Are you going to offer those

4 into evidence after all of this?

5 MR. VON STAMWITZ: I was. I could do it

6 now if that would be better.

7 MR. PERZAN: No, that's fine. Just so I

8 understand.

9 HEARING OFFICER WALLACE: Mr.

Perzan?

10 MR. PERZAN: Yes, I have a few

11 questions.

12 CROSS EXAMINATION

13 BY MR. PERZAN:

14 Q Those government documents that make up

15 Exhibit 18, and when I say 18, I mean all of the

16 1s, 1E, 1S, all of that, those also reflect

17 application from

Chemetco to Spain, correct?

18 A I am not sure I understand the question.

19 Q Well, some of these documents are things

20 that you submitted to Spain?

21 A (Witness reviewed documents.) Yes.

22 Q Okay. So is it correct to characterize

23 these as an application that

Chemetco submitted to

24 the Government of Spain, and then a responsive

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Belleville, Illinois

1 document by the Government of Spain to

Chemetco?

2 A Ask me that again, please.

3 Q Is it correct to characterize these

4 documents, and I am talking about all of them, this

5 series of documents, as a couple of documents that

6 you submitted to the Government of Spain and then

7 their reply to you?

8 A (Witness reviewed documents.) This one

9 was sent by Dennis

Meyer. It appears that this

10 page did, by Dennis

Meyer.

11 Q What page was that?

12 A One.

13 Q That's marked as 18-2S, is that the one

14 you are looking at?

15 A Yes.

16 Q Did you prepare these documents?

17 A No, I did not personally prepare these.

18 Q Did you see them being prepared?

19 A No, I did not see them being prepared.

20 Q Do these documents mention zinc oxide

21 anywhere on them?

22 MR. VON STAMWITZ: It is a long

23 document. Is there a page you want him to refer to

24 or would you rather he just thumb through it?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 MR. PERZAN: Yes, anywhere.

2 THE WITNESS: (Witness reviewed

3 documents.) No, I don't see it.

4 Q (By Mr.

Perzan) Okay. I am going to

5 refer you to 18-2E. That's the first or it is the

6 second English translation. What is the title of

7 this document?

8 A 18-2A?

9 Q Yes, 2E?

10 A Oh. Okay. European community.

11 Q Is there another title?

12 A Oh. Okay. Cross border waste shipments.

13 HEARING OFFICER WALLACE: I am sorry.

14 What page are you on?

15 MR. PERZAN: 18-2E.

16 HEARING OFFICER WALLACE: Okay.

17 Q (By Mr.

Perzan) So how would you

18 characterize this document?

19 A I am sorry?

20 Q How would you characterize this

21 document? This is the application for the shipment

22 of waste into Spain?

23 MR. VON STAMWITZ: Objection. The term

24 "waste" means different things in different

KEEFE REPORTING COMPANY

Belleville, Illinois

1 countries. If he is talking about using the

2 American terminology or the European terminology it

3 is important that he reference that.

4 Q (By Mr.

Perzan) Does any country involved

5 in this transaction, Spain or the United States,

6 does either of them consider this substance that

7 you shipped there a waste?

8 A As I understand it, the European

9 documents carry the term "waste" as a broad

10 category for many materials, okay. I don't think

11 they term it as we term a RCRA waste, a hazardous

12 waste. It is used in two different meanings. Have

13 we ever been disallowed to ship this material to

14 Europe, no.

15 Q That wasn't my question. Is it

16 Chemetco's position that this is not a regulated

17 waste under RCRA?

18 A We are shipping copper tin oxides into

19 Spain, a product.

20 Q Do those copper tin oxides have the zinc

21 oxide mixed with it?

22 A Yes, they do.

23 Q Is there any requirement that you reveal

24 that zinc oxide is mixed in with the copper tin

KEEFE REPORTING COMPANY

Belleville, Illinois

1 oxides on these permits to Spain?

2 A Our zinc oxide is a product.

3 Q Under Spanish law or American law?

4 A It is a product to ship, and the Spanish

5 Government has said it is okay to come into their

6 country.

7 Q But the Spanish Government does not know

8 that you are shipping zinc oxide into Spain, based

9 on these documents?

10 MR. VON STAMWITZ: Objection. Are you

11 saying --

12 Q (By Mr.

Perzan) Based on these documents,

13 is it revealed that this zinc oxide is going to

14 Spain?

15 MR. VON STAMWITZ: I believe the

16 documents speak for themselves that copper tin

17 oxides are going to Spain.

18 MR. PERZAN: Well, we have already

19 established that zinc oxide is not listed on this

20 document.

21 Q (By MR.

Perzan) So is it fair to say that

22 based on these documents Spain does not know that

23 zinc oxide is going into Spain?

24 A The chemical analysis of the product

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1 being shipped to Spain is on this document, and

2 they have approved the chemical analysis of that

3 product to come into their country.

4 Q Okay. Have you ever done a hazardous

5 waste determination on the zinc oxide that you are

6 currently shipping to Spain?

7 A I don't know the answer to that.

8 MR. VON STAMWITZ: Let me object to

9 that. I don't know how that is relevant to the

10 narrowness of this proceeding. We are talking

11 about -- we all know that the disposition of

12 something affects its characterization. This

13 material is handled as a product, and no hazardous

14 waste characterization is done on it.

15 MR. PERZAN: I think that

Chemetco has

16 opened the door to this because they submitted this

17 and claimed that Spain considers it one thing and

18 that the United States considers it another. I am

19 just trying to get to the differences.

20 HEARING OFFICER WALLACE: All right. Mr.

21 Hoff, would you answer the question, please.

22 THE WITNESS: Would you ask it again,

23 please.

24 Q (By Mr.

Perzan) Has Chemetco ever done a

KEEFE REPORTING COMPANY

Belleville, Illinois

1 hazardous waste determination with regard to the

2 zinc oxide currently being shipped to Spain?

3 A I don't believe so.

4 Q Okay. Would anyone know for sure in your

5 organization?

6 A It would have to be checked out.

7 Q How does the chlorine get into the

8 materials that are shipped to Spain?

9 A If there is chlorine in the incoming

10 product it would end up in the zinc oxide.

11 Q So there is chlorine in the incoming

12 product?

13 A I don't know that.

14 Q Well, I would just refer you to the

15 document, either one of the documents, that is

16 18-2S or 18-3S, for their equivalent Spanish or

17 English translation, Number 13, where it lists the

18 composition of the materials being sent to Spain.

19 I believe the last thing says .3 CL?

20 A Yes.

21 Q So do you know how the chlorine gets into

22 the zinc oxide?

23 A I do not know where that came from.

24 Q Could it come from the zinc oxide?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A I do not know where that came from.

2 Q So it might come from the zinc oxide?

3 A I would doubt that it would come from the

4 zinc oxide.

5 Q Okay. But you are not sure?

6 A (No response.)

7 Q I want to refer you to, on the English

8 translation, 18-2E, line 3E, where the evaluation

9 process, I believe, has a check there. Can you

10 tell me what that means?

11 MR. VON STAMWITZ: No objection, if the

12 witness knows.

13 THE WITNESS: I don't know.

14 Q (By Mr.

Perzan) Does it seem to you that

15 20,000 metric tons or 20 million kilograms is an

16 awful lot for evaluation of this material?

17 MR. VON STAMWITZ: Objection. There is

18 no foundation for that question. Counsel had all

19 the opportunities in the world to take all the

20 depositions he wanted regarding these documents and

21 he didn't. This witness said he doesn't know what

22 that term means.

23 MR. PERZAN: I don't know what whether or

24 not we had taken depositions has to do with this.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 MR. VON STAMWITZ: This is not a

2 discovery conference here. This witness does not

3 know what that term means. You are asking him

4 questions about it.

5 HEARING OFFICER WALLACE: All right. To

6 the extent that the Board referred this matter back

7 to hearing to go into this exhibit, I think it is a

8 reasonable question. The objection is overruled.

9 Answer the question, please, Mr.

Hoff.

10 THE WITNESS: Would you ask it again,

11 please?

12 Q (By Mr.

Perzan) Does it seem like 20,000

13 metric tons or 20 million kilograms of this

14 material is a large amount for an evaluation, using

15 the generally understood meaning of the term

16 evaluation?

17 A By the Spanish Government, do you mean?

18 Q By

Elmet.

19 A I am not sure I understand the question

20 yet.

21 Q Okay. Let's back up a little bit, then.

22 Apparently,

Chemetco is shipping this material to

23 Elmet, correct?

24 A Correct.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q In this permit application to the Spanish

2 Government,

Chemetco said they are shipping it for

3 an evaluation process, correct?

4 A I don't know what that evaluation is for.

5 Q Well, do you know what evaluation means?

6 Do you know what the word evaluation means?

7 A I do.

8 Q Can you tell me what you think it means?

9 A That they are going to evaluate the

10 material we are sending to them,

Elmet.

11 Q Okay. Does that mean that they may not

12 accept it?

13 HEARING OFFICER WALLACE: "They" meaning

14 Elmet?

15 MR. PERZAN: Yes,

Elmet. Thank you.

16 THE WITNESS:

Elmet is going to check the

17 chemistry. They are going to do their own analysis

18 on the material when we ship it to them.

19 Q (By MR.

Perzan) So I will ask that

20 question again. Do you think that 20,000 metric

21 tons is an awful lot for an evaluation?

22 MR. VON STAMWITZ: I will object just on

23 the notion that it is 20 million kilograms, is what

24 the document says.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 MR. PERZAN: Okay. 20 million kilograms.

2 Q (By MR.

Perzan) Do you think 20 million

3 kilograms is a lot for an evaluation?

4 A For?

5 Q For the evaluation purposes?

6 A They are not going to evaluate all 20

7 million kilograms.

8 Q Okay. So what are they going to do with

9 the rest of it?

10 A That, you would have to ask them.

11 Q You don't know?

12 A I don't know what

Elmet is going to do.

13 Q Looking at number five of the same

14 document,

Chemetco has a total estimated amount

15 there. Can you tell me what that is?

16 A I am sorry. Where are you?

17 Q Page five. Not page five. Excuse me.

18 It is paragraph five.

19 A What's the question?

20 Q Can you tell me what the estimated amount

21 that

Chemetco is going to send over is?

22 A It is about 4,000 tons a month.

23 Q Is that what that says there?

24 A I am sorry. That says 20 million

KEEFE REPORTING COMPANY

Belleville, Illinois

1 kilograms.

2 Q How much is that in tons?

3 A About 4,000 tons a months.

4 Q How much is that in tons total? How much

5 is this number rendered into tons? Not per month.

6 A It is right at 4,000 tons.

7 Q I am not talking about per month, sir. I

8 am talking about the number here in tons.

9 A

Uh-huh.

10 MR. VON STAMWITZ: I think he has

11 answered the question that --

12 MR. PERZAN: No.

13 HEARING OFFICER WALLACE: I don't believe

14 he has either. This 20 million kilograms is not

15 expressed in 20 million kilograms per month. You

16 are expressing a tonnage figure per month. What is

17 the overall tonnage figure that the 20 million

18 kilograms represents?

19 THE WITNESS: I think it is about 4,000

20 tons, isn't it?

21 Q (By Mr.

Perzan) Do you know how many

22 kilograms in a metric ton?

23 A Oh, in a metric ton?

24 Q Yes.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A No, I don't.

2 Q Okay. Could it be 1,000?

3 A I said I don't know.

4 Q You don't know. Okay. That's fine. Did

5 you prepare for this hearing?

6 A Yes.

7 Q Did you look at these numbers?

8 A Yes.

9 Q Okay. Did you talk about this with Mr.

10 Von Stamwitz?

11 A Yes.

12 Q Okay. Thank you. Referring you again to

13 Number 13, paragraph 13 of that, it is a couple of

14 pages down, I think. It is one page down. Can you

15 tell me what the composition of the zinc oxide is?

16 The zinc. Excuse me.

17 A The copper tin oxides?

18 Q The composition of the zinc as it is

19 listed within the copper tin oxides?

20 A It is 23 percent moisture, 16.8 percent

21 luson (spelled phonetically) ignition, 22.8 percent

22 copper, 9.5 percent zinc, 2.7 percent iron, a half

23 percent nickel, and .3 chlorine.

24 HEARING OFFICER WALLACE: If I might

KEEFE REPORTING COMPANY

Belleville, Illinois

1 interject, what does

luson ignition mean?

2 THE WITNESS: I am not sure I know how

3 they interpret that term.

4 HEARING OFFICER WALLACE: All right.

5 Q (By Mr.

Perzan) Does the number for zinc

6 there match

Chemetco's specifications as they were

7 indicated in the Attachment 4 to the petition?

8 A Attached to where?

9 Q Attachment 4 to the petition. If you

10 don't recall that, I have a copy of it here to help

11 your memory.

12 A (Witness reviewed document.) No, it does

13 not match identical.

14 Q Is it higher or lower?

15 A Than what?

16 Q Is it higher or lower? Is it a higher

17 number or a lower number than --

18 A The zinc?

19 Q Yes.

20 A The zinc is lower here.

21 Q Okay. Let's move on to the contract

22 here, Exhibit 19. Did you draft this?

23 A No.

24 Q Did you see it drafted?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A No.

2 Q Do you know who drafted it?

3 A Yeah, I believe it was drafted by George.

4 Q Mr.

Von Stamwitz?

5 A Mr.

Von Stamwitz, sir.

6 Q Okay. Did you testify earlier at the

7 March proceeding that the current contract with

8 Elmet was for 1,500 tons per month?

9 A Yes, I did.

10 Q Did you testify that that amount

11 reflected a reduction from previous contracts?

12 A

A reduction from previous contracts?

13 Q Yes.

14 A I don't remember. I may have.

15 Q Okay. Would it help you to look at the

16 transcript?

17 A It would, yes.

18 Q At seven and eight.

19 A Eight?

20 Q Yes.

21 A (Witness reviewed transcript.) Yes, I did

22 say that.

23 Q Did you do anything after that hearing

24 that would have led you to change your testimony?

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Belleville, Illinois

1 Well, let's back up here. I withdraw that

2 question.

3 Currently, how much is the contract --

4 how much can you send to

Elmet based on your

5 current contract of the copper tin oxides?

6 A It is 3,000 tons per month.

7 Q Is that the same as the contract you had,

8 say, in 1996?

9 A I don't remember 1996. I believe it was

10 1,500 then.

11 Q So you are saying it is higher now?

12 A It is more tonnage.

13 Q More tonnage. Did anyone tell you to

14 change your testimony today?

15 MR. VON STAMWITZ: I am going to object.

16 I believe under

recross in the old hearing we went

17 over this, the distinction between the actual sales

18 every month, which is 1,500 versus the potential

19 sales.

20 MR. PERZAN: I don't think so.

21 MR. VON STAMWITZ: It was briefed and

22 discussed. Then on redirect we went over this in

23 some detail. We can go over it again, if you would

24 like.

KEEFE REPORTING COMPANY

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1 HEARING OFFICER WALLACE: Are you

2 objecting or --

3 MR. VON STAMWITZ: I am objecting to the

4 line of questioning.

5 HEARING OFFICER WALLACE: All right.

6 MR. VON STAMWITZ: We have a contract

7 here for 1997. We can ask about what is happening

8 in 1997, if you would like. But this distinction

9 between 1,500 and 3,000 has been discussed and

10 briefed, and I think we are going over old

11 territory.

12 HEARING OFFICER WALLACE: Your response?

13 MR. PERZAN: I think the witness has

14 clearly testified two different ways, and I think

15 we are entitled to explore that.

16 HEARING OFFICER WALLACE: All right. The

17 objection is overruled. Go ahead.

18 Q (By Mr.

Perzan) Did anyone tell you to

19 change your testimony?

20 A What do you mean, did anybody tell me to

21 change my testimony?

22 Q Did anyone tell you that you should

23 change your testimony after the March 11th hearing?

24 A I believe what happened at the March 11th

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1 hearing is that I was under the impression that

2 this was a new contract, and all this is

is an

3 approval.

4 Q And "this" is? You are referring to --

5 A May I finish?

6 Q I just want to make --

7 HEARING OFFICER WALLACE: When you say

8 "this," what --

9 THE WITNESS: Oh, this document?

10 HEARING OFFICER WALLACE: Identify it so

11 that we know what you are talking about when you

12 say "this".

13 THE WITNESS: The approval to ship in by

14 the government agencies to ship to Spain. At that

15 point in time I thought this was the contract. I

16 was wrong. That was not the contract. This is the

17 contract for 3,000 tons a month for the year of

18 1997.

19 Q (By Mr.

Perzan) Okay. When did you learn

20 this? When did you learn that you were mistaken?

21 A When I found out that we didn't have the

22 contract yet, that this was just the approval to

23 ship by the government agencies.

24 Q Who told you that?

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1 A I don't remember.

2 Q Were you aware after the March 11th

3 hearing that your testimony at the hearing could

4 hurt

Chemetco's chances to get an Adjusted

5 Standard?

6 A I am not sure how I could hurt

Chemetco.

7 Q You don't understand the question?

8 A I don't understand the question.

9 Q Were you aware that a reduction in the

10 amount of materials that you were able -- that

11 Chemetco was able to send to

Elmet might hurt the

12 chances of

Chemetco to receive an Adjusted

13 Standard?

14 A At the time I thought that the contract

15 was for 3,000 tons to go to

Elmet, okay, and that's

16 500 tons, the way I calculate it, a month excess,

17 which is 6,000 tons a year which give or take about

18 what is in the bunker, that is pretty close to five

19 years. Now, there is no reason for me to believe

20 that we wouldn't continue to do business with

Elmet

21 for a long time. There is also no reason for me to

22 believe that we wouldn't have other customers over

23 the five year period for zinc oxide.

24 Q What was it specifically that led you to

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1 testify on March 11th that there was a reduction in

2 1997 from the previous contract?

3 A May I --

4 MR. VON STAMWITZ: Objection. A

5 reduction from 1997 to the previous contract?

6 MR. PERZAN: He testified that way. What

7 is your -- what are you objecting to?

8 MR. VON STAMWITZ: Is there in the record

9 anywhere stated there was a reduction from 1997

10 from what was previous?

11 MR. PERZAN: It may not say the dates.

12 If that's the basis for your objection I will

13 modify it and remove the dates and just say the

14 previous contract.

15 MR. VON STAMWITZ: I just don't think

16 that's an accurate statement.

17 HEARING OFFICER WALLACE: Do you have a

18 reference to the prior transcript?

19 MR. PERZAN: Yes, it is page 56, line 8

20 through 11.

21 HEARING OFFICER WALLACE: All right. The

22 section you quote does not mention any specific

23 years.

24 MR. PERZAN: Okay. So I will rephrase my

KEEFE REPORTING COMPANY

Belleville, Illinois

1 question then.

2 Q (By Mr.

Perzan) What led you to believe

3 that there was a reduction from 300 tons per month

4 under the prior agreement?

5 A May I read that again? (Witness reviewed

6 the transcript.)

7 MR. VON STAMWITZ: Mr. Wallace, while he

8 is doing that, I would like to, for the record,

9 give permission to allow Mr.

Hoff to read other

10 portions of the record on the same topic so he

11 might be educated on this question. I think he is

12 referring just to specific things that redirect

13 talked about in some detail, as well, that I would

14 like to ask Mr.

Hoff to review.

15 HEARING OFFICER WALLACE: Well, I think

16 that Counsel is allowed to explore Mr.

Hoff's

17 memory and his testimony based upon this new

18 document. So I think that he should first of all

19 answer the question that is pending, based upon

20 page 56 of the prior transcript.

21 MR. VON STAMWITZ: All right.

22 HEARING OFFICER WALLACE: Have you read

23 those lines, Mr.

Hoff?

24 THE WITNESS: Yes.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 HEARING OFFICER WALLACE: Can you answer

2 the question?

3 THE WITNESS: In 1996 the contract may

4 have been for 1,500 tons, and in 1997 the contract

5 is for 3,000 tons per month, and you are referring

6 to Mr.

Kotter's affidavit in there and asking me

7 what the difference is between Mr.

Kotter's

8 affidavit and the 1,500 tons. Is that what you are

9 referring to?

10 Q (By Mr.

Perzan) All I am referring to is

11 what your statement was.

12 A That it was 1,500 tons in 1996 or a year,

13 and now it is 3,000 tons in 1997?

14 Q So how is it changed now?

15 A It has gone up.

16 Q It has gone up. I still don't understand

17 why you would have said that -- that you would have

18 agreed with the assertion that -- I will read it.

19 "And that is a reduction from the 3,000 tons per

20 month under this prior agreement." And you said

21 "that's correct."

22 I still don't understand why you agreed

23 with that, because it is pretty clear that is

24 talking about a reduction and not an increase.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A Because I believe that -- may I answer

2 that?

3 Q Yes, please.

4 A I believe in there that is referring to

5 what I thought was a prior contract, which is 1,500

6 tons, okay. Now it has gone to 3,000 in 1997. You

7 are referring to the difference between Mr.

8 Kotter's affidavit and that day. Mr.

Kotter had

9 said 3,000 tons for whatever year. I had said

10 1,500 tons for 1996 or 1995, whatever year. The

11 new contract is for 3,000 tons. You are comparing

12 Mr.

Kotter's affidavit to contracts.

13 Q Well, Mr. --

14 A Mr.

Kotter had said the 3,000 tons.

15 Q I believe the petitioner had said 3,000

16 tons, as well.

17 A That's what I just read in there. You

18 asked him what the difference was between Mr.

19 Kotter's 3,000 tons and my 1,500 tons.

20 MR. PERZAN: Just to be clear, I would

21 like to point out that this is during Mr.

Morgan's

22 cross-examination of Mr.

Hoff, and not mine.

23 Q (By Mr.

Perzan) So does Mr.

Kotter's

24 affidavit that was attached to the petition state

KEEFE REPORTING COMPANY

Belleville, Illinois

1 that

Chemetco had a renewable contract with

Elmet

2 to sell 3,000 tons of oxide per month?

3 A I don't have Mr.

Kotter's affidavit

4 (Witness reviewed document.) Yes, he does say

5 that.

6 Q So Mr.

Kotter in that affidavit was

7 talking about the contract that

Chemetco claims it

8 has with

Elmet during that period, correct?

9 A Which period?

10 Q The time when the petition was filed.

11 A I can't answer for Mr.

Kotter.

12 Q You can't. Okay. Well, was there a

13 contract for 3,000 tons per month with

Elmet, tons

14 of oxides per month at the time that this was

15 submitted to the Board?

16 A What's the date?

17 Q June 6, 1996, I believe, the date is.

18 Actually, I think it is on that --

19 A June 6, 1996?

20 Q Yes. I think it is on the last page

21 there.

22 A

Uh-huh. I don't know the answer to that

23 in June of 1996.

24 Q So you don't know whether this is true or

KEEFE REPORTING COMPANY

Belleville, Illinois

1 not?

2 A Whether what is true?

3 Q Whether the affidavit was true or not?

4 A I have not seen the 1996 contract.

5 Q So the way I gather your testimony is

6 that you have just said that the contract now with

7 Chemetco is an increase from the one that was

8 testified to by Mr.

Kotter in this affidavit; is

9 that correct?

10 A No. The contract for 1997 is 3,000 tons

11 a month.

12 Q Yes.

13 A Mr.

Kotter also talks about 3,000 tons

14 per month.

15 Q Okay. Correct me if I am wrong here, but

16 I thought you just testified that the reason that

17 you agreed with the statement that the 3,000 tons

18 was a reduction from the prior agreement was that

19 the current contract or the new contract was for

20 more, if I understood your testimony correctly?

21 A It is my opinion that in 1996 the

22 contract was for 1,500 tons a month and it went to

23 3,000 tons in 1997.

24 Q So when you testified at the hearing on

KEEFE REPORTING COMPANY

Belleville, Illinois

1 this matter on March 11th you thought that the

2 contract was for only 1,500 tons per month, just

3 rephrasing what you just said; is that correct?

4 A I thought the contract before was for

5 1,500 tons. The new contract was for 3,000 tons.

6 I also thought that this exhibit, Exhibit 18, was

7 the contract. It was not the contract. I was

8 wrong. It was just the permission to ship into

9 Spain. Now we have the contract and it is 3,000

10 tons per month, which is Exhibit 19.

11 Q So on March 11th had you read the

12 petition?

13 A I am sorry?

14 Q Had you read the petition or reviewed the

15 petition in preparation for your testimony on March

16 11th, do you recall?

17 A I don't remember what all I read.

18 Q You might have read the petition? You

19 think it is something that you would have read?

20 A I may have read it.

21 Q Does Mr.

Von Stamwitz draft all of your

22 contracts like this?

23 MR. VON STAMWITZ: Which contracts?

24 MR. PERZAN: Like this one, Exhibit 19.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 THE WITNESS: If we employ George to

2 write them he writes them.

3 Q (By Mr.

Perzan) Do you?

4 A If we need, yes. All of them, probably

5 not. To some of them, yes.

6 Q So there was a special need here to write

7 a contract?

8 A It we feel there is a need for George to

9 write a contract then we ask George to do it.

10 Q Was this contract written specifically

11 for this Adjusted Standard?

12 A No. George doesn't feel that we do

13 contracts very well, so he chooses to write most of

14 them.

15 Q Is this the first one?

16 A No.

17 Q There are others that he has written?

18 A Yes.

19 Q Can you think of one?

20 A He has looked over the contracts on land

21 that we have done. He has looked over contracts on

22 buys that we have done. He has looked over

23 contracts on agreements when we buy a business.

24 Q I don't want to get into all the things

KEEFE REPORTING COMPANY

Belleville, Illinois

1 that Mr.

Von Stamwitz does for you. I know he does

2 a lot of things. I am talking specifically about

3 the zinc oxide sales or the sales of copper tin

4 oxide, whichever you call it. I don't really need

5 to get beyond that.

6 A We have George do our contracts so that

7 they are correct.

8 Q Was this the first zinc oxide contract he

9 has done for you?

10 A I don't know the answer to that.

11 Q Can you tell me what the price of the

12 contract is here?

13 A I am sorry?

14 Q What the price of the material is based

15 on this contract?

16 A Of?

17 Q Of the material?

18 A The way that we execute this contract is

19 that we send copper tin oxides to Spain and they

20 ship red brass --

21 HEARING OFFICER WALLACE: Let me

22 interrupt, Mr.

Hoff. That's not the question. Is

23 there a price listed in this document was the

24 question.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 THE WITNESS: Oh, I am sorry. I

2 misunderstood. It is $149.00 per ton.

3 Q (By Mr.

Perzan) Is that a price? It says

4 historic average. It seems to refer to the past.

5 Is that what

Elmet -- let's back up a minute. Who

6 pays who under this contract?

7 A The controllers balance the books every

8 so often and adjust from there.

9 Q Does

Chemetco send money to

Elmet?

10 A

Chemetco has sent money to

Elmet.

11 Q Does

Elmet send money to

Chemetco?

12 A I don't know the answer to that.

13 Q Is the amount of money that

Chemetco may

14 send to

Elmet calculated based on anything, any

15 formula that is reflected in this contract?

16 A There is no formula in this contract. Is

17 that your question?

18 Q Well, I guess that answers it. There is

19 no method for calculating the price of this

20 material in this contract, correct?

21 A In this contract here, no.

22 Q Okay. Ordinarily in a contract wouldn't

23 you expect to see that? Do you often do contracts

24 that don't have prices in them?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A We do formula contracts, yes, we do.

2 Q This says confirm the existing

3 contracts. Does that mean that there are other

4 documents out there and this is just a confirmation

5 of those?

6 A To the best of my knowledge, this is the

7 contract.

8 Q Does this document say zinc oxide

9 anywhere on it?

10 A No.

11 Q Do you think it would be a violation of

12 this contract to send zinc oxides under this

13 contract instead of sending copper tin oxides?

14 A No, I do not because it is done by

15 chemistry.

16 Q Well, this says copper tin oxides,

17 doesn't it?

18 A Yes, it does.

19 Q And copper tin oxides is not the same

20 thing as zinc oxide?

21 A Copper tin oxides has zinc oxide in it.

22 Q Before or after you mix them together?

23 A After.

24 Q Before you mix them together, then,

KEEFE REPORTING COMPANY

Belleville, Illinois

1 apparently, copper tin oxide does not have zinc

2 oxide in it?

3 A Right.

4 Q So if this contract says that the letter,

5 whatever it is, says you have contracts to deliver

6 3,000 tons per month of copper tin oxides, then,

7 apparently, under this contract you don't have --

8 this doesn't say anything about zinc oxide and,

9 therefore, you don't have a contract to send zinc

10 oxide?

11 MR. VON STAMWITZ: Objection. I believe

12 the witness just said that zinc oxide is in the

13 blend.

14 Q (By Mr.

Perzan) Does it indicate that on

15 this document?

16 A No.

17 Q This document does not say anything about

18 a blend, does it?

19 A Copper tin oxides.

20 Q It does not say copper tin oxides have

21 been blended with something?

22 A No, it does not say that.

23 Q What is black copper?

24 HEARING OFFICER WALLACE: I think we went

KEEFE REPORTING COMPANY

Belleville, Illinois

1 over that the last time.

2 MR. PERZAN: Did we?

3 HEARING OFFICER WALLACE: Yes.

4 MR. PERZAN: Okay.

5 Q (By Mr.

Perzan) If there was less zinc

6 oxide in this mixture, would you get back more

7 black copper or red brass from

Chemetco -- or from

8 Elmet? Excuse me.

9 A Ask me that again, please.

10 Q If there was less zinc oxide in this

11 mixture that you sent over there, would you, as a

12 result, get more black copper or red brass back

13 from

Elmet?

14 A No. The way we -- what we send over is

15 copper tin oxides. What we get back is a red

16 brass, okay.

Elmet charges their furnace with a

17 charge. The copper tin oxides are oxides. Red

18 brass is a metallic. You can't get from copper tin

19 oxides to red brass.

20 Q Okay. So the black copper or the red

21 brass, according to you, does not come from the

22 copper tin oxides?

23 A No.

24 Q But they can extract something out of the

KEEFE REPORTING COMPANY

Belleville, Illinois

1 copper tin oxide?

2 A Absolutely.

3 Q What do they extract?

4 A Copper, tin, lead, gold, silver.

5 Q Isn't copper a metallic?

6 A It is in an oxide form. You have to

7 change the chemical.

8 Q So you can get copper out of these

9 materials that you send there?

10 A If you did copper tin oxides in a furnace

11 by itself I don't know what you would get.

12 Q But there is some method by which

Elmet

13 can get copper out of these materials?

14 A Their process is a charge. This is one

15 piece of the charge. The charge is a continuous

16 charge into a blast furnace.

17 Q Under this contract does it tell you how

18 much black copper and red brass you are going to

19 get back from

Elmet?

20 A The red brass is a buy from

Elmet. The

21 copper tin oxides and the red brass -- we send the

22 copper tin oxides and they send the red brass.

23 Okay. It is two separate issues.

24 Q But the contract --

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A The reason we send them copper tin oxides

2 is because you cannot get oxides in Europe. The

3 reason we get red brass back is because you cannot

4 get red brass in the United States.

5 Q Why are they

formulized in this contract

6 at the same time then?

7 A Ask that question again, please.

8 Q Why are they

formulized in this contract

9 at the same time?

10 A I don't understand the question.

11 Q Well, if they are separate transactions,

12 why do you even need to mention the black copper

13 and red brass in this contract?

14 A What we need is red brass and what they

15 need are oxides. It is the overall picture.

16 Q So this document does not, then, reveal

17 how much black copper and red brass you are going

18 to get from

Elmet?

19 A No, there is not a quantity.

20 Q Okay. So it could be any amount?

21 A We purchase every month.

22 Q This contract does not tell you how much

23 you are going to send to

Elmet, how much copper tin

24 or zinc oxides you are going to send to

Elmet below

KEEFE REPORTING COMPANY

Belleville, Illinois

1 the maximum of 3,000 tons per month, does it?

2 A It says we have a contract to ship 3,000

3 tons a month of copper tin oxides.

4 Q Does this letter state the specifications

5 that the copper tin oxides have to meet?

6 A Not on this page, no.

7 Q Does this letter mention evaluation as it

8 is mentioned in permits?

9 A Does it mention their assay techniques in

10 Spain, no, it does not.

11 Q Does it mention evaluation, was the

12 question.

13 A No, it does not.

14 Q Where do you get your copper tin oxides

15 for sale to

Elmet?

16 A All over the United States.

17 Q Do you know what

Elmet does with the

18 waste that it produces?

19 A I don't work at

Elmet.

20 Q Can you tell me who signed this for

21 Elmet?

22 A I can't read it either.

23 Q Okay. Can you tell me who signed this

24 for

Chemetco?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A Dennis

Meyer.

2 Q Who is he?

3 A He is the area manager of commercial for

4 Chemetco.

5 HEARING OFFICER WALLACE: Area manager

6 for what?

7 THE WITNESS: For commercial.

8 Q (By Mr.

Perzan) What is his function?

9 A He buys materials for

Chemetco.

10 Q And sells, too, as well, apparently?

11 A He trades, yes.

12 MR. PERZAN: I don't have anything

13 further.

14 HEARING OFFICER WALLACE: Mr. Morgan?

15 MR. MORGAN: Thank you, Mr. Hearing

16 Officer.

17 CROSS EXAMINATION

18 BY MR. MORGAN:

19 Q With regard to I think it is Exhibit

20 Number 19, which is what has been described as the

21 contract between

Elmet and Chemetco, is that the

22 first time this relationship has been memorialized

23 in a document like that, to your knowledge?

24 A Memorialized? What does --

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q Put down in writing?

2 A -- that mean?

3 Q Put down in writing.

4 A To the best of my knowledge, I think

5 there are other contracts each year.

6 Q This refers to -- is it calendar year

7 1997?

8 A Yes, I believe so. It is from 01-01-97

9 through 01-01-98, I believe.

10 Q Have negotiations started on the

11 01-01-98?

12 A I don't know that.

13 Q Who would be in charge of that?

14 A That would be Dennis.

15 Q Now, in paragraph two of that contract,

16 it says

Chemetco balances account based on the red

17 brass received. There is a dollar figure, an

18 estimated dollar figure for the red brass. How is

19 the balancing dollar figure for the copper tin

20 oxide determined?

21 A We ship -- as the whole picture, we ship

22 copper tin oxides. Okay. We have a cost of doing

23 that, okay, all costs. Then we have a purchase for

24 red brass, okay. We know all the margins on that.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Okay. Then that difference is done and then the

2 account is settled.

3 Q I am asking how do you determine how to

4 sell it? How do you determine what the cost is of

5 the copper tin oxides?

6 A They track it monthly on shipments,

7 okay. Then the market goes up and down, and then

8 they will settle after a period of time.

9 Q The market for what?

10 A For copper.

11 Q For copper. So it is based on the copper

12 content of the copper tin oxides?

13 A Actually, I should say it is based on the

14 COMEX market or the LME market. I don't know

15 exactly how the --

16 HEARING OFFICER WALLACE: Would you spell

17 those for the record, please, the COMEX and there

18 was another market.

19 THE WITNESS: C-O-M-E-X and L-M-E.

20 Q (By Mr. Morgan) I guess there is a number

21 on one of those markets that corresponds to

22 something in the copper tin oxide; is that correct?

23 A I don't understand that question.

24 Q I don't understand how you determine what

KEEFE REPORTING COMPANY

Belleville, Illinois

1 the value of the zinc oxide is. That's what I am

2 trying to get at.

3 A Oh, okay. We have a cost of doing the

4 copper tin oxides. There is freight costs. Okay.

5 We have, you know, labor costs, okay. So that is

6 in this. Then we purchase red brass. That is over

7 here. There is a margin in red brass, okay, the X

8 margin that is figured in when we buy the

9 material. Okay. The cost and the margin are

10 offset. That's how they balance the books.

11 Q So the only cost of the copper tin oxide

12 is the labor cost and the freight cost?

13 A And there is some material cost there.

14 Q How do you determine the material cost?

15 A The material cost is tracked. I mean, it

16 is -- there is contracts. Some of it is free and

17 some of it is not.

18 Q How do you determine what is free and

19 what is not?

20 A We purchase the copper tin oxides. Some

21 of them we get free, and some of them we pay a

22 penny for. Some of them we pay a quarter of a cent

23 for.

24 Q So your cost of copper tin oxides

KEEFE REPORTING COMPANY

Belleville, Illinois

1 reflects what you paid for the copper tin oxides on

2 the market?

3 A Yes.

4 Q And there is no cost associated with the

5 zinc oxide you mix in with it; is that correct?

6 A I don't know how much that cost is

7 figured in there. There is a cost to zinc oxide,

8 that is true. How much of that is in there I don't

9 know.

10 Q Do you know how that is determined?

11 A What?

12 Q The cost of the zinc oxide?

13 A The cost accounting, by our cost

14 accounting process.

15 Q Could you explain that cost accounting

16 process for me?

17 A We have --

18 MR. VON STAMWITZ: If you know.

19 THE WITNESS: We have general areas that

20 have cost accounting codes, and everything that is

21 done in that area is charged to that code.

22 Q (By Mr. Morgan) So if you have a laborer

23 go out there to pick up zinc oxide would that be

24 the cost?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A No, it is -- yes, that's part of it. I

2 mean, every cost associated to that product is

3 costed against that product.

4 Q Is there a value of the zinc oxide, in

5 and of itself, that is included in what

Elmet is

6 charged under your arrangement?

7 A You would have to ask the controller

8 where he is right now. That's the financial

9 accounting group. Okay. I don't know where they

10 are at right now.

11 Q I take that to mean that the value of the

12 zinc oxide can fluctuate over time; is that a fair

13 statement?

14 A All the materials in this industry

15 fluctuate every minute of every day.

16 Q Okay. There has been some discussion

17 earlier of what was perceived to be a difference in

18 the amount of material that

Elmet would accept from

19 Chemetco, the 1,500 tons versus the 3,000 tons.

20 The waste export documents included a 20 million

21 kilogram amount on it. Do you know if a new

22 document needs to be issued if that amount would go

23 up?

24 A I don't know how they do these

KEEFE REPORTING COMPANY

Belleville, Illinois

1 documents. I do know we have a contract for 2,000

2 tons a month for copper tin oxides. That's what we

3 can ship a month.

4 Q Would you be surprised to learn that

5 3,000 tons a month of copper tin oxides would be

6 almost double 20 million kilograms?

7 A I have not done the math. I would have

8 to check.

9 Q Well, let me just walk you through my

10 math. We start with the 20 million kilograms, and

11 there are 2.2 pounds per kilogram, and that would

12 mean 44 million pounds of copper tin oxides divided

13 by 2,000 pounds per ton, that leaves 22,000 tons.

14 A So you are saying 22,000 tons is 20

15 million kilograms? Is that what you are saying?

16 Q Yes.

17 A Okay.

18 Q Do you know if there has been any effort

19 by

Chemetco or Elmet to notify the Spanish

20 authorities of the difference between 22,000 tons

21 and 36,000 tons?

22 A I would not know that.

23 Q Do you know who at

Chemetco would know

24 that?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A That would be Dennis

Meyer.

2 Q Do you know if there is any obligation to

3 report to the Spanish authorities if the

4 composition of the material being shipped would

5 change?

6 A I don't know the answer to that. I don't

7 know how the government works.

8 Q Do you know if there is a similar

9 document required from the shipments of the red

10 brass from

Elmet to Chemetco?

11 A I am not sure I know which document you

12 are talking about.

13 Q The waste export or waste shipment

14 document that is Exhibit 18?

15 A Coming out of Spain?

16 Q Correct.

17 A I don't know that.

18 Q Referring to that exhibit, and I don't

19 have the page numbers. If I may, I will come

20 around and point you to the right page. I will be

21 looking at the English translation. It is item

22 Number 23. I am still not sure of the page

23 number. I take that back. That's not the right

24 one. Okay. This would be the 18-4E. Would you

KEEFE REPORTING COMPANY

Belleville, Illinois

1 read the paragraph that starts, "with respect to"?

2 A "With respect to processing your

3 application the Department of Environmental Quality

4 has no objection to authorizing the shipment of the

5 waste materials indicated in the aforesaid document

6 provided that the issuing authority has no

7 objection."

8 Q Do you know who the issuing authority

9 they are referring to is?

10 A No, I don't.

11 Q Do you know if there has ever been an

12 objection filed by any governmental agency to this

13 procedure?

14 A To the best of my knowledge, no.

15 Q Would you -- would the issuing authority

16 be the U.S. Environmental Protection Agency?

17 MR. VON STAMWITZ: I believe he stated he

18 doesn't know.

19 MR. MORGAN: I was hoping that would jog

20 your memory.

21 HEARING OFFICER WALLACE: The next

22 question.

23 MR. MORGAN: Certainly.

24 Q (By Mr. Morgan) Mr.

Hoff, do you know

KEEFE REPORTING COMPANY

Belleville, Illinois

1 what the percentage of tin is in the copper tin

2 oxides you obtain to mix with the zinc oxide for

3 shipment?

4 A The percentage of tin will vary, you

5 know, every time you ship.

6 Q Do you know if there is a particular

7 range that it has fallen in?

8 A There is a spec for

Elmet.

9 Q Do you recall what that spec is?

10 A I don't, but I know it has never been

11 rejected from

Elmet.

12 Q There was previously submitted as part of

13 this application a material safety data sheet for

14 zinc oxide, if you recall, and --

15 MR. VON STAMWITZ: Mr. Hearing Officer, I

16 have to object again. We are going over old

17 exhibits that we went over at some length on March

18 11th. There is nothing new on this issue.

19 MR. MORGAN: If I may, I think there is.

20 This document portrays the amount of zinc being

21 shipped to Spain as being in the range of 9

22 percent. This material safety data sheet projects

23 the amount of zinc oxide in the zinc oxide as

24 anywhere from between 34 to 40 percent.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 As I understand the process, they take

2 half zinc oxide, half copper tin oxides to reach

3 the total amount. If you reduce 40 percent zinc

4 oxide by half, you end up with more than 9 percent

5 zinc in the final mixture. I was trying to explore

6 that discrepancy.

7 HEARING OFFICER WALLACE: All right. Mr.

8 Hoff, what is the explanation for the --

9 THE WITNESS: I am not sure I understand

10 your question yet.

11 MR. MORGAN: Certainly.

12 HEARING OFFICER WALLACE: Mr.

Hoff, I

13 have let you avoid these questions for a while, and

14 these aren't hard questions. He has given you a

15 set of numbers that don't match up and he is asking

16 you to explain why they don't match up.

17 THE WITNESS: It is in how we mix it.

18 The variance in the chemistry is in how we mix it

19 and what is in the mix.

20 Q (By Mr. Morgan) So, as I understand it,

21 then, your zinc oxide can vary from -- let me

22 rephrase that. Are you saying that you don't take

23 half copper tin oxide and half zinc oxides to

24 provide what you are shipping to

Elmet?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 MR. VON STAMWITZ: I object. This is

2 just a point of clarification that I think would

3 move this along. He is referring to a material

4 safety data sheet. He is not referring to

Elmet's

5 specifications.

Elmet's specifications is an

6 exhibit. It was in the record. It was testified

7 about. It is not the same as the material safety

8 data sheets. There is broad ranges in there. I

9 believe he is confusing the witness regarding what

10 are

Elmet's specifications versus what is in a

11 different document. I believe that is part of the

12 confusion here.

13 MR. MORGAN: Well, if I may?

14 HEARING OFFICER WALLACE: Mr. Morgan?

15 MR. MORGAN: What I was getting at was

16 their documents for which they obtained approval

17 from Spain says we are providing 9 percent zinc

18 oxide. I believe the specifications may be

19 different than that. The base amount of the zinc

20 oxide, which they previously have testified is

21 added at a fifty-fifty ratio, wouldn't result in

22 that amount. I am just trying to make sure that

23 what they have told Spain they are shipping is, in

24 fact, what they are shipping.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 HEARING OFFICER WALLACE: Well, then ask

2 that question, then, because we are going back over

3 prior hearing material. Like I mentioned at the

4 outset of the hearing, this hearing is really

5 limited to what has been marked as Exhibits 18 and

6 19.

7 Q (By Mr. Morgan) Perhaps the easiest way

8 to do that is to ask, do you know what information

9 was provided to the Spanish authorities in order to

10 suggest to them that the amount of zinc was only

11 9.5 percent?

12 A I don't know where they got that

13 information. From somebody.

14 Q Would it have been someone within

15 Chemetco?

16 A I don't know who prepared the papers and

17 who sent them or what they asked for even.

18 Q Do you know if that information is

19 accurate, based on the information available to you

20 today?

21 A Information here in this document?

22 Q Yes, in that document.

23 A In Exhibit 18?

24 Q Yes, in Exhibit 18.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A As far as I know it is correct.

2 MR. MORGAN: Nothing further. Thank

3 you.

4 HEARING OFFICER WALLACE: Thank you.

5 Redirect?

6 MR. VON STAMWITZ: Yes.

7 REDIRECT EXAMINATION

8 BY MR. VON STAMWITZ:

9 Q Mr.

Hoff, I am going to hand you what has

10 been marked as Petitioner's Exhibit 4 from the

11 previous hearing, and I would like you to read into

12 the record the range for zinc in that document?

13 A The range for zinc is 10 to 30 percent.

14 Q Thank you. Now, in 1996, when you

15 prepared a shipment of copper tin oxides to

Elmet,

16 how large was that shipment?

17 A Each shipment is a 1,500 ton barge.

18 Q Is that 100 percent of the zinc oxide

19 produced in that given period of time?

20 A Yes. We will ship the barges with copper

21 tin oxides, ship 100 percent of current production

22 zinc oxide.

23 Q In other words, at 1,500 a shipment you

24 don't have any excess zinc oxide lying around?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A We do not.

2 Q So you had no need to have an arrangement

3 with

Elmet larger than 1,500?

4 A That's true.

5 Q Now, if for some reason operations

6 changed and in 1996 you had the ability to send

7 more than 1,500 to

Elmet, do you have an opinion

8 regarding whether

Elmet would take 1,500 more -- or

9 not 1,500 more, but more than 1,500 in 1996?

10 A Oxides, in their process, it is very

11 important how they make their product.

12 HEARING OFFICER WALLACE: All right.

13 What's the answer, Mr.

Hoff?

14 THE WITNESS: Yes.

15 Q (By Mr.

Von Stamwitz) Would Elmet take

16 more than 1,500 tons in 1996 if you asked them to?

17 A Yes.

18 Q I am going to hand you an affidavit of

19 Mr.

Bovida (spelled phonetically). I refer you to

20 paragraph two. I ask you to read into the record

21 what Mr.

Bovida stated the capacity of the contract

22 was?

23 A

Elmet has an open contract with

Chemetco,

24 Incorporated of Hartford, Illinois, either to

KEEFE REPORTING COMPANY

Belleville, Illinois

1 purchase or tow into black copper up to 3,000

2 metric tons per month of nonferrous copper tin zinc

3 metallic oxides.

4 Q Thank you. Since the last hearing, since

5 the hearing on March 11th, have you been making

6 regular shipments to

Elmet?

7 A Yes.

8 Q Since the last hearing have you been

9 continuing to investigate other additional --

10 MR. PERZAN: Objection. It is beyond the

11 scope of this hearing.

12 HEARING OFFICER WALLACE: Sustained.

13 MR. VON STAMWITZ: No further questions.

14 HEARING OFFICER WALLACE: All right.

15 Recross?

16 MR. PERZAN: I have nothing further.

17 MR. MORGAN: Nothing further. Thank

18 you.

19 HEARING OFFICER WALLACE: All right.

20 MR. VON STAMWITZ: I believe I have not

21 yet moved for the entry into the record of Exhibits

22 18 and 19. I would like to do that at this time.

23 HEARING OFFICER WALLACE: All right. Mr.

24 Perzan?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 MR. PERZAN: We have no objection to 18.

2 Exhibit 19 we object to on the basis of hearsay and

3 lack of foundation.

4 HEARING OFFICER WALLACE: All right.

5 Petitioner's Exhibit Number 18 is admitted. I will

6 admit Petitioner's Exhibit 19. I believe under the

7 rules of the Board it probably is an acceptable

8 exhibit.

9 (Whereupon said documents were

10 admitted into the record as

11 Petitioner's Exhibits 18 and 19

12 as of this date.)

13 EXAMINATION

14 BY HEARING OFFICER WALLACE:

15 Q Mr.

Hoff, I know you mentioned earlier in

16 your previous testimony, but what is your position

17 with

Chemetco?

18 A President.

19 Q And this Dennis

Meyer, where does he work

20 out of?

21 A Phoenix, Arizona.

22 Q And you work out of?

23 A Hartford.

24 Q Hartford, Illinois?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A Yes.

2 Q Does

Chemetco have several facilities or

3 several locations?

4 A

Chemetco is one manufacturing facility,

5 but we have many warehouses that collect.

6 Q What do your overall responsibilities

7 include, Mr.

Hoff?

8 A Operations of

Chemetco, and transform

9 into basically the operating side of the business.

10 Q Now, do you directly supervise Mr. Dennis

11 Meyer?

12 A No, I do not.

13 Q Now, is he actually in

Chemetco, Inc. or

14 is he in another --

15 A He is a

Chemetco employee.

16 Q A

Chemetco employee. Okay. Looking at

17 Exhibit 18, can you testify here today that the

18 copper tin oxides that you shipped to

Elmet conform

19 to the percentage numbers that are contained in

20 line 13?

21 A Every shipment will be very close to

22 this.

Elmet has a spec that we have to meet.

23 Q All right. But what about the Spanish

24 Government? Do you --

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A I don't know what, you know,

Elmet gave

2 to the Spanish Government, so I --

3 Q Well, Mr.

Hoff, it is apparent that

4 Chemetco has submitted document Petitioner's

5 Exhibit 18 to the Spanish Government since it is

6 signed by Dennis

Meyer.

7 A

Uh-huh.

8 Q Based upon line 13, there are percentage

9 points for various materials.

10 A

Uh-huh.

11 Q Now, do you have any knowledge that, a,

12 Chemetco has to comply with those numbers, and, b,

13 does

Chemetco comply with those numbers in its

14 shipment?

15 A

A, this is probably the average that

16 Dennis gave them out of our computer screen. And,

17 b, yes, we are very close every time we ship.

18 Q Do you do -- is it called an assay, is

19 that --

20 A Analysis.

21 Q Analysis.

22 A Of the material, yes, we do.

23 Q Of every --

24 A And so does Spain.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 Q I am sorry. Let me finish. You do an

2 analysis of every barge shipment you ship?

3 A We do a random sampling.

4 Q Your random sampling is from different

5 parts of the barge or different parts of the

6 shipment or what?

7 A Different parts of the barge.

8 Q And do you maintain records on those?

9 A Yes.

10 Q Now, Mr. Morgan asked you some questions

11 and you replied with COMEX and --

12 A COMEX and LME.

13 Q LME. Now, are those markets for

14 products?

15 A Yes, COMEX is the American market. LME

16 is the European market.

17 Q These are listed exchanges of some type?

18 A Yes.

19 Q So the market does provide a price for

20 certain commodities?

21 A Yes.

22 Q Does it actually provide -- do the

23 markets provide a price for copper oxide, copper

24 tin oxide, as that type of commodity?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 A No, they will give you copper, aluminum,

2 nickel.

3 Q All right. So these markets do not

4 provide an oxide price?

5 A No.

6 HEARING OFFICER WALLACE: Okay. Thank

7 you, Mr.

Hoff.

8 Again, Exhibits 18 and 19 are admitted.

9 Is there anything further, Mr.

Von Stamwitz?

10 MR. VON STAMWITZ: No, sir.

11 HEARING OFFICER WALLACE: Mr.

Perzan?

12 MR. PERZAN: No, sir.

13 HEARING OFFICER WALLACE: Everything has

14 been briefed. Does anyone wish to file a short

15 supplemental on today's hearing with the Board?

16 MR. VON STAMWITZ: The Petitioner does

17 not, but reserves the right if Respondent wants to

18 file a reply.

19 MR. PERZAN: I don't think we need to.

20 HEARING OFFICER WALLACE: All right. We

21 will leave it that the parties do not intend to

22 file any post hearing briefs or supplemental briefs

23 to this hearing. In the event -- I don't encourage

24 it, but in the event that either party changes its

KEEFE REPORTING COMPANY

Belleville, Illinois

1 mind you would have to request leave from the Board

2 to file an additional supplemental brief, and you

3 would address that to the Board and not to me.

4 Otherwise, I consider the hearing concluded as

5 directed by the Board.

6 All right. Thank you very much.

7 Pursuant to the Board's rules, I do not find any

8 credibility problem with the testimony of Mr.

9 Hoff.

10 (Exhibits were retained by

11 Hearing Officer Wallace.)

KEEFE REPORTING COMPANY

Belleville, Illinois

1 STATE OF ILLINOIS )

) SS

2 COUNTY OF MONTGOMERY)

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

4 I, DARLENE M. NIEMEYER, a Notary Public

5 in and for the County of Montgomery, State of

6 Illinois, DO HEREBY CERTIFY that the foregoing 66

7 pages comprise a true, complete and correct

8 transcript of the proceedings held on the 26th of

9 August

A.D., 1997, at the State Regional Office

10 Building, Collinsville, Illinois, in the matter of:

11 Petition of

Chemetco, Inc. for an Adjusted Standard

12 from 35 Ill. Adm. Code 720.131 (a) and (c), in

13 proceedings held before the Honorable Michael L.

14 Wallace, Hearing Officer, and recorded in machine

15 shorthand by me.

16 IN WITNESS WHEREOF I have hereunto set my

17 hand and affixed my

Notarial Seal this 3rd day of

18 September

A.D., 1997.

Notary Public and

21 Certified Shorthand Reporter and

Registered Professional Reporter

CSR License No. 084-003677

23 My Commission Expires: 03-02-99

KEEFE REPORTING COMPANY

Belleville, Illinois