321
    1
    2 BEFORE THE
    3 ILLINOIS POLLUTION CONTROL BOARD
    4
    5 PEOPLE OF THE STATE OF ILLINOIS, )
    )
    6 Petitioner, )
    )
    7 -vs- ) NO. 96-107
    ) (Enforcement)
    8 ESG WATTS, Inc., an Iowa )
    Corporation, )
    9 )
    Respondent. )
    10 -----------------------------------)
    11
    PROCEEDINGS taken on October 30, 1996, at
    12 the Rock Island County Building, 1504 Third
    Avenue, Third Floor, Rock Island, Illinois,
    13 commencing at 8:08 a.m., before Deborah L.
    Frank, Attorney/Hearing Hearing Officer, and
    14 Victoria Fickel, Certified Shorthand and Notary
    Public of the County of Rock Island, State of
    15 Illinois.
    16
    17
    18
    19
    20
    21
    22
    23
    24
    25
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    1
    A-P-P-E-A-R-A-N-C-E-S
    2
    3 Hearing Officer: DEBORAH L. FRANK
    Attorney/Hearing Officer
    4 Illinois Pollution Control
    Board
    5 608 South Prospect Avenue
    Champaign, IL 61820
    6
    7 Petitioner by: AMY SYMONS-JACKSON
    Office of the Attorney General
    8 Assistant Attorney General
    Environmental Bureau
    9 500 South Second Street
    Springfield, IL 62706
    10
    11 THOMAS DAVIS
    Office of the Attorney General
    12 Chief Environmental Bureau
    500 South Second Street
    13 Springfield, IL 62706
    14
    15 Respondent by: CHARLES J. NORTHRUP
    Sorling, Northrup, Hanna,
    16 Cullen and Cochran, Ltd.
    Suite 800 Illinois Building
    17 P.O. Box 5131
    Springfield, IL 62705
    18
    19
    20
    21
    Also Present: Michelle M. Ryan, Assistant Counsel,
    22 Waste Enforcement, Division of
    Legal Counsel.
    23
    24
    25
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    1 I N D E X
    2
    3 WITNESS EXAMINED BY PAGE
    4
    5 Jerry Martens Ms. Symons-Jackson. . . . 328
    6 Mr. Northrup. . . . . . . 340
    7 Ms. Symons-Jackson. . . . 349
    8 Mr. Northrup. . . . . . . 350
    9
    10
    11 Wayne Siebke Ms. Symons-Jackson. . . . 352
    12 Mr. Northrup. . . . . . . 366
    13
    14
    15 Heidi Schultz --. . . . . . . . . . . . 370
    16 Mr. Davis . . . . . . . . 372
    17 Mr. Northrup. . . . . . . 375
    18 Mr. Davis . . . . . . . . 378
    19 Mr. Northrup. . . . . . . 379
    20
    21
    22 Ron Mehalic Ms. Symons-Jackson. . . . 380
    23 Mr. Northrup. . . . . . . 434
    24 Ms. Symons-Jackson. . . . 447
    25
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    1 Kenn Liss Ms. Symons-Jackson . . . 450
    2 Mr. Northrup. . . . . . . 466
    3 Ms. Symons-Jackson . . . 473
    4 Mr. Northrup. . . . . . . 474
    5
    6
    7 John Taylor Ms. Symons-Jackson. . . . 475
    8 Mr. Northrup. . . . . . . 499
    9
    10
    11 Mark Mehall Mr. Northrup. . . . . . . 512
    12 Mr. Davis . . . . . . . . 519
    13 Mr. Northrup. . . . . . . 521
    14
    15
    16 Gerald Eilers Mr. Northrup . . . . . . 521
    17 Ms. Symons-Jackson . . . 534
    18 Mr. Northrup . . . . . . 542
    19
    20
    21 Steve Keith Mr. Northrup . . . . . . 544
    22 Ms. Symons-Jackson . . . 564
    23 Mr. Northrup . . . . . . 566
    24
    25
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    1 Robert Fortelka Mr. Northrup . . . . . . 569
    2 Ms. Symons-Jackson . . . 578
    3 Mr. Northrup . . . . . . 580
    4 Ms. Symons-Jackson . . . 581
    5
    6
    7 Steve Brao Mr. Northrup . . . . . . 582
    8 Ms. Symons-Jackson . . . 598
    9 Mr. Northrup . . . . . . 598
    10
    11
    12 Joseph Chenoweth Mr. Northrup. . . . . . 600
    13 Ms. Symons-Jackson. . . 624
    14 Mr. Northrup. . . . . . 642
    15
    16
    17
    18
    19
    20
    21
    22
    23
    24
    25
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    1 E X H I B I T S
    2 Offer Admit
    3
    4 Peoples Exhibit No. 24. . . . . . 332. . . . 333
    5 Peoples Exhibit No. 65. . . . . . 411. . . . --
    6 Peoples Exhibit No. 52. . . . . . --. . . . 429
    7 Peoples Exhibit No. 53. . . . . . 457. . . . 457
    8 Peoples Exhibit No. 54. . . . . . 458. . . . 458
    9 Peoples Exhibit No. 55. . . . . . 459. . . . 459
    10 Peoples Exhibit Nos. 57 and 58. . 490. . . . 491
    11 Peoples Exhibit No. 59. . . . . . 494. . . . 495
    12 Peoples Exhibit Nos. 62 - 64. . . 507. . . . 507
    13 Peoples Exhibit Nos. 66 and 67. . 507. . . . 511
    14
    15
    16 Respondent's Exhibit No. 1 . . . . --. . . . 563
    17 Respondent's Exhibit No. 2 . . . . --. . . . --
    18 Respondent's Exhibit Nos. 3 and 4. 603. . . . 603
    19 Respondent's Exhibit No. 5 . . . . --. . . . --
    20
    21
    22
    23 CERTIFICATE OF SHORTHAND REPORTER. . . . . . 648
    24
    25
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    1 THE HEARING OFFICER: Let's go ahead
    2 and begin. Just for the record, we ended with Ron
    3 yesterday, but we are going to begin with some
    4 neighbors today for their convenience. They need
    5 to get to work. So let's go ahead and call your
    6 first witness.
    7 MS. SYMONS-JACKSON: The state would
    8 call Mr. Jerry Martens.
    9 THE HEARING OFFICER: Would you
    10 please swear the witness.
    11 JERRY MARTENS,
    12 called as a witness, after having been first duly
    13 sworn, was examined and testified as follows:
    14 DIRECT EXAMINATION
    15 BY MS. SYMONS-JACKSON:
    16 Q. Would you please state your full name for
    17 the record, sir.
    18 A. Jerry Martens.
    19 Q. Mr. Martens, where do you live?
    20 A. 7928 - 78th Avenue West, Milan, Illinois.
    21 Q. And Mr. Martens, where is your residence
    22 in relationship to the Taylor Ridge landfill?
    23 A. North of it.
    24 Q. And who lives there with you?
    25 A. My wife.
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    1 Q. Do you have any kids?
    2 A. My daughter.
    3 Q. Any other children living at home?
    4 A. No.
    5 Q. Okay. So the three of you that live
    6 in --
    7 A. Yes.
    8 Q. -- the home? Okay. Mr. Martens, for the
    9 sake of the court reporter, let me finish my
    10 questions, and go ahead and answer, so she can take
    11 down one voice at a time. All right?
    12 A. (Nods head.)
    13 Q. And how long have you been resided at
    14 your current address?
    15 A. 20 years.
    16 Q. And was the landfill present when you
    17 moved in 20 years ago?
    18 A. Yes.
    19 Q. And at that time, what were your thoughts
    20 about living near a landfill?
    21 A. Never really bothered me that much,
    22 'cause if it was run by the rules, there shouldn't
    23 be no problems with it.
    24 Q. Now, over the past 20 years, was your
    25 opinion with regard to living near a landfill
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    1 changed at all?
    2 A. Yes.
    3 Q. And can you explain how that opinion has
    4 changed?
    5 A. Because it's never been run by the rules.
    6 Q. And how has -- how have the landfill
    7 operations affected your daily life?
    8 A. Well, we get odors, smells, the highway
    9 is muddy when -- after it rains, litter on the
    10 road, noise from the landfill.
    11 Q. Do you get litter on your property from
    12 the landfill?
    13 A. No. It's too far away to catch the
    14 litter. It gets caught before it gets to my
    15 house. Pasture in-between.
    16 Q. When you talk about mud on the road and
    17 litter on the road, what road are you talking
    18 about?
    19 A. Highway 92. Better known as Andalusia
    20 Road.
    21 Q. And would that road be north of your
    22 property?
    23 A. Yes.
    24 Q. Okay. Now, I want to talk about the
    25 odors for a little bit. Can you describe for us
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    1 what the odor from the landfill smells like?
    2 A. It plain smells like rotten garbage,
    3 shit, whatever you want to call it, raunchy smells.
    4 Q. And do you have an opinion as to where
    5 that odor is coming from?
    6 A. Yes. The landfill.
    7 Q. And are there things that your family
    8 does not do any more as a result of the odor
    9 problems?
    10 A. Yes. We don't have a lot of outside
    11 cookouts like we used to because of it, because you
    12 got to be afraid of having people up with getting
    13 in the middle of the steak or something, and she
    14 comes through, and that's the end of it.
    15 Q. What about are you able to keep the
    16 windows open on your house?
    17 A. Not all the time.
    18 Q. Now, are there certain times either of
    19 the day or of the year that you notice the odor
    20 problems more than other times?
    21 A. Well, sometimes it's when the air is
    22 heavier that we catch it, and the wind is out of
    23 the south is when we catch it. But it is a
    24 year-round thing.
    25 Q. Now, Mr. Martens, when would -- you say
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    1 you've lived at this site for the past 20 years.
    2 When would you say you first really started
    3 noticing a problem with the odors?
    4 A. It's been off and ongoing for ten years
    5 at least, I'd say.
    6 Q. Mr. Martens, I want to hand what you we
    7 have already market as Peoples Exhibit 24. And can
    8 you please identify that for the record? Is it a
    9 two-page document?
    10 A. Yeah. Yep.
    11 Q. Can you identify what that is, please.
    12 A. Well, that tells where I live. That
    13 tells dates that odors have been recorded on it.
    14 Q. And who has -- have you been the one
    15 recording the dates when you've experienced odors
    16 on that?
    17 A. My wife and I both have.
    18 Q. And can you tell us the dates that are
    19 covered by that exhibit?
    20 A. 7-22, the 23rd, the 24th, 25th, 26th,
    21 27th.
    22 Q. If I could interrupt. First date through
    23 to the last date, what time period is covered?
    24 A. Oh the seventh month, from the 22nd to
    25 the 28th. The eighth month, the 4th. Then it
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    1 jumps to the 8th. And then -- well, it jumps into
    2 August. Jumps clear up to 29th. There is a couple
    3 of days in-between where it didn't get an odor
    4 in-between.
    5 Q. And what year are we talking about?
    6 A. Last year.
    7 Q. 1995?
    8 A. Yep.
    9 Q. So it basically covers July and August of
    10 1995?
    11 A. Yep.
    12 Q. Mr. Martens, to the best of your
    13 recollection, do the dates and the comments you've
    14 recorded in this Exhibit 24 accurately reflect the
    15 actual dates and times during which you were
    16 bothered by odor from the landfill?
    17 A. Yes.
    18 MS. SYMONS-JACKSON: Okay.
    19 Ms. Hearing Officer, I would move for admission of
    20 Peoples Exhibit 24.
    21 THE HEARING OFFICER: Is there any
    22 objection?
    23 MR. NORTHRUP: I would object to any
    24 of the entries that were made by his wife as being
    25 hearsay.
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    1 THE HEARING OFFICER: Do you have
    2 any response?
    3 MS. SYMONS-JACKSON: Well, I would
    4 inquire further with Mr. Martens if that's -- if
    5 it's necessary.
    6 THE HEARING OFFICER: Okay. Why
    7 don't you go ahead and do that.
    8 BY MS. SYMONS-JACKSON:
    9 Q. Mr. Martens, did you and your wife
    10 discuss the recording of dates and odors on this
    11 exhibit?
    12 A. Oh, yes, we have. Because I'm not there
    13 24 hours a day. Sometimes it's during the day that
    14 it comes. Sometimes it's early evening, late
    15 evening. I mean, we are a unit as one.
    16 Q. And after your wife may have recorded
    17 odors on this exhibit, did you discuss what she had
    18 done?
    19 A. Yeah. We talked about it.
    20 Q. Okay.
    21 A. You know, the dump stunk today.
    22 MS. SYMONS-JACKSON: I would renew
    23 my motion to admit this into evidence.
    24 THE HEARING OFFICER: Okay. I'm
    25 going to allow --
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    1 MR. NORTHRUP: Just for the record.
    2 Same objection. It's hearsay.
    3 THE HEARING OFFICER: Okay. I'm
    4 going to allow the admission.
    5 BY MS. SYMONS-JACKSON:
    6 Q. Mr. Martens, would you agree that the
    7 dates recorded in this odor log from July to August
    8 of 1995 are not the only occasions in the past ten
    9 years on which you have experienced odor problems
    10 from the landfill?
    11 A. Definitely.
    12 Q. This is just a limited picture for those
    13 two months; is that correct?
    14 A. Right.
    15 Q. Mr. Martens, the frequency of the odors
    16 that you've recorded in this Exhibit 24 and the
    17 comments regarding these specific odors, would you
    18 agree that those are consistent with what -- with
    19 what the odors are actually like on a regular
    20 basis?
    21 A. Yeah. They are, you know, just during
    22 the time periods. You just never know. You might
    23 have a lot. Depends upon the wind.
    24 If the wind is out of the north, I don't
    25 catch the odors. But when you get the southerly
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    1 winds or deep still evening, then I get them where
    2 it can kind of roll.
    3 Q. Okay. Now, Mr. Martens, have you ever
    4 talked to anyone at the landfill regarding these
    5 odors?
    6 A. Personally, no.
    7 Q. Are you aware of whether your wife has?
    8 A. Yes.
    9 Q. And are you aware of what the -- what, if
    10 anything, the landfill has done to attempt to
    11 correct the odor problems?
    12 A. They said, we will try and take care of
    13 it. And there has been times they have went out
    14 and throwed some cover on to cover it.
    15 Q. And when they have done that, have the
    16 odor problems returned?
    17 A. Eventually, yes.
    18 Q. Now, I want to talk a little bit about
    19 the other -- the other things you mentioned with
    20 regard to problems you've experienced as a result
    21 of the landfill operations. You mentioned mud on
    22 the road. Can you describe how that's affected
    23 your life?
    24 MR. NORTHRUP: I'll object to that.
    25 It's irrelevant. No allegation in the complaint
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    1 with respect -- I'm objecting as to relevancy.
    2 There is no allegation in the complaint with
    3 respect to mud on any roads.
    4 MS. SYMONS-JACKSON: It's our
    5 position, Ms. Hearing Officer, that this testimony
    6 is relevant. We have been discussing a number of
    7 off-site impacts as a result of landfill
    8 operations. Mr. Martens covered this during his
    9 discovery deposition. This is nothing new to
    10 Mr. Northrup. Just trying to get an overall
    11 picture of how the landfill operations have
    12 affected his life.
    13 THE HEARING OFFICER: I'm going to
    14 allow the testimony.
    15 BY MS. SYMONS-JACKSON:
    16 Q. Can you describe for us how the mud on
    17 the road has affected your life?
    18 A. Yeah. I got to drive down that highway
    19 at least twice a day. And there has been wrecks
    20 there because of the mud. You can slide off the
    21 road. It's just scary. It gets scary, 'cause it
    22 gets just like ice. It will get so thick. Plus
    23 debris flying up at you hitting your vehicle.
    24 Q. Mr. Martens, are you aware that at one
    25 point in time the highway department posted a sign
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    1 on the highway alerting drivers on the road to mud
    2 on the road?
    3 A. Yes.
    4 Q. Do you recall when that happened?
    5 A. It's been a few years back. It's been
    6 there two or three years, I'd say.
    7 Q. And is that sign still there?
    8 A. I think it's still there. After so long,
    9 you forget to look at it. You just look at the
    10 highway when you come by.
    11 Q. And do you recall what it was -- whether
    12 it was a citizen complaint or request from the
    13 landfill or what prompted the highway department to
    14 put up that sign?
    15 A. I don't know for positive, but I'm pretty
    16 sure it was because of the complaints from the
    17 citizens to do something about it.
    18 Q. Had you ever yourself made a complaint to
    19 the highway department about the mud on the road?
    20 A. No.
    21 Q. Had you made a complaint to the landfill?
    22 A. No.
    23 Q. Had your wife?
    24 A. I don't know for sure.
    25 Q. Now, what about the noise problems you
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    1 mentioned? Can you explain those for us?
    2 A. Well, it isn't as bad as it used to be.
    3 But it used to be you could hear -- they could be
    4 running maybe at 8 o'clock yet at night. Running
    5 Cats with closing time 5 o'clock. Give me a
    6 break. Something is wrong.
    7 Q. Now, when you would hear those noises,
    8 how would that effect what you were doing at your
    9 home on your property?
    10 A. If you are trying to watch TV, you are
    11 listening to Cats running. You know, you got to
    12 turn your volume up and everything else. Got to
    13 talk over it. Plus running the vehicles in the
    14 middle of the night.
    15 Q. There have been times when you've heard
    16 vehicles being operated in the middle of the night?
    17 A. Yes, ma'am.
    18 Q. How many occasions would you say that's
    19 occurred?
    20 A. It's been few, but --
    21 Q. When was the last time you noticed that?
    22 A. It's been about a year.
    23 Q. Okay. And what's happened? Has the
    24 noise been so loud that it's awakened you from your
    25 sleep?
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    1 A. Yes.
    2 Q. With regard to the odors, have the odors
    3 ever been so bad that they have awakened you from
    4 your sleep?
    5 A. That I can't say for sure, 'cause I wake
    6 up now and then anyhow. But I've woke up to them
    7 in the middle of the night. Now, I can't say for
    8 sure whether it's caused me to wake up.
    9 Q. Now, you mentioned your property was too
    10 far from the landfill for litter to actually be
    11 blown on your property. It gets intercepted
    12 somewhere.
    13 A. Yes.
    14 Q. Can you give my an estimate of how far
    15 your property is located from the landfill?
    16 A. Probably about a block. Between a block
    17 and a block-and-a-half.
    18 Q. Can you give me an idea of how many feet
    19 or yards we are talking about?
    20 A. Maybe a thousand feet or so, 1500,
    21 somewhere around in there.
    22 Q. Mr. Martens, have the odors at the
    23 landfill unreasonably interfered with your
    24 enjoyment of life and property?
    25 A. Yes.
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    1 Q. And this has been going on for the past
    2 ten years?
    3 A. At least.
    4 MS. SYMONS-JACKSON: Okay. That's
    5 all I have.
    6 THE HEARING OFFICER: Mr. Northrup.
    7 MR. NORTHRUP: Okay. Just a couple
    8 of quick follow-up questions.
    9 CROSS-EXAMINATION
    10 BY MR. NORTHRUP:
    11 Q. You talk about hearing noises late at
    12 night. You said that occurred on a few occasions.
    13 How many? Can you be more specific?
    14 A. Well, years ago, it was maybe once a week
    15 there for a while. And how many years ago, I don't
    16 remember. And it's got down to where it's very
    17 seldom anymore. Of course, they work on equipment,
    18 I guess, now up there in the evenings. So that's
    19 running it up till 11 o'clock at night when they
    20 are working on stuff.
    21 Q. Okay. So you've heard them working on
    22 equipment. It's not machinery dumping or, you
    23 know, bulldozers covering garbage, that type of
    24 thing?
    25 A. In the past, I've heard them dumping late
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    1 at night. Hear the clanging and bang of the
    2 tailgates on the trucks.
    3 Q. Okay. When you say the past, what are
    4 you talking about? How far back?
    5 A. Oh, it's been within the last year since
    6 I recall.
    7 Q. Now, you still do some entertaining,
    8 correct?
    9 A. Yeah.
    10 Q. Still sleep with your windows open?
    11 A. Try to.
    12 Q. I believe you said you've never been
    13 wakened by the odor.
    14 A. I say I don't know for sure whether it's
    15 woken me or I've just woken up and smelled it.
    16 Q. Okay. Were you deposed on September 26th
    17 of this year?
    18 A. If that was the date.
    19 Q. Were you deposed at the Watts Trucking
    20 Service offices?
    21 A. Yes.
    22 Q. Just take a look at this question; 19, 20
    23 and 21.
    24 A. (Complies.)
    25 Q. Now, does that refresh your recollection
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    1 at all if you've ever been awakened by an odor?
    2 MS. SYMONS-JACKSON: I'm going to
    3 object to this question. Mr. Martens hasn't
    4 indicated that he's had any problem with calling
    5 what he's recollected or not. He said he doesn't
    6 know what's been the reason for him waking up in
    7 the middle of the night.
    8 THE HEARING OFFICER: Mr. Northrup,
    9 did you have a response to her objection?
    10 MR. NORTHRUP: That's fine. I'll
    11 rephrase the question.
    12 BY MR. NORTHRUP:
    13 Q. Having read this from your deposition,
    14 how do you address the inconsistency between your
    15 testimony?
    16 MS. SYMONS-JACKSON: I'm going to
    17 object again. I think this is improper
    18 impeachment.
    19 THE HEARING OFFICER: Mr. Northrup,
    20 do you have a response?
    21 MR. NORTHRUP: To the extent I don't
    22 believe it is improper. How is it improper? I've
    23 given him the deposition. He's looked at it. This
    24 is clearly a different answer in this deposition
    25 than he gave a few minutes ago with respect to
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    1 whether he's ever been wakened by an odor.
    2 THE HEARING OFFICER: Okay. I'm
    3 going to allow the question. Can you repeat it
    4 again for Mr. Martens?
    5 BY MR. NORTHRUP:
    6 Q. Having looked at this deposition, those
    7 couple of lines, how do you -- do you see any
    8 inconsistency between this and your response to the
    9 earlier question on whether you had ever been
    10 awakened by an odor?
    11 A. I don't know, because it says no there,
    12 but I said I don't know.
    13 Q. Why?
    14 A. And I don't remember whether I said no or
    15 don't know down there.
    16 Q. Well, it's recorded in the deposition
    17 what you said --
    18 A. Okay.
    19 Q. -- down there. So which is more
    20 accurate? What was said here, or what you just
    21 said?
    22 A. What I just said. That I don't know.
    23 Q. Have you ever actually witnessed
    24 equipment operating in the evening at the landfill?
    25 A. Yes, I have.
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    1 Q. Okay. When is that?
    2 A. It's been years back.
    3 Q. More than one year?
    4 A. I think most of it was in the time span
    5 of one year there.
    6 Q. Now, this -- I can't remember what the
    7 number was. Peoples Exhibit 24, is that a form
    8 that you developed?
    9 A. Yeah. Somebody developed it.
    10 Q. I'm sorry?
    11 A. Somebody developed it.
    12 Q. Did you?
    13 A. No, not personally.
    14 Q. Where did you get the form?
    15 A. I'm not sure where my wife got it.
    16 Q. Your wife got it. Where do you get your
    17 drinking water from?
    18 A. A well.
    19 Q. Is that on your property?
    20 A. Yes.
    21 Q. Do you know how deep it is?
    22 A. What is it? 315 I think or 215. I don't
    23 remember.
    24 Q. Have you ever had it sampled?
    25 A. Yes.
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    1 Q. Has anyone ever told you not to drink the
    2 water?
    3 A. Not as of yet. But this last report that
    4 just come back showed high levels of lead.
    5 Q. Did you have that report with you?
    6 A. No, I don't.
    7 Q. Who did the sampling?
    8 A. State of Illinois.
    9 Q. They provided you with a copy?
    10 A. Yes.
    11 Q. Do you recall more specific than the
    12 state? Was it EPA?
    13 A. Yeah.
    14 Q. Is there anyplace on your property where
    15 vegetation will not grow?
    16 A. No.
    17 Q. Did you ever -- were you ever a member of
    18 any neighborhood association whose purpose it was
    19 to fight the landfill?
    20 A. Yes.
    21 Q. Do you know what the name of that
    22 organization was?
    23 A. If I can think of it again. Like I
    24 stated before, I cannot remember what we called it.
    25 Q. Is that organization still active?
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    1 A. No.
    2 Q. Okay. When did it cease to be active?
    3 A. It's been a few years back. About the
    4 time that Mr. Watts put the lawsuit against Joe
    5 Whitley.
    6 Q. Is Joe Whitley a member of that
    7 organization?
    8 A. I believe he was. I don't know for
    9 positive.
    10 Q. Did he take an active role in that
    11 organization?
    12 A. Did who?
    13 Q. Joe Whitley. I'm sorry.
    14 A. What do you define as an active role?
    15 Q. Did he ever speak at public gatherings?
    16 A. Yes.
    17 Q. Did he search on any -- were any
    18 committees formed?
    19 A. Yeah. There was some committees formed
    20 at times.
    21 Q. Okay. What were those committees?
    22 A. One that I was involved in was to try and
    23 get the publicity on the landfill.
    24 Q. Okay. Was Joe Whitley involved in that
    25 committee?
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    1 A. Not that I recollect.
    2 Q. Okay. What did Joe Whitley do, if you
    3 know, on behalf of this organization?
    4 A. He was just an involved citizen like the
    5 rest of us.
    6 Q. When was the last time any debris hit
    7 your vehicle on the Andalusia Road?
    8 A. Last night. Mud going home from here.
    9 Q. And you attribute that to the landfill?
    10 A. Yes, sir. Them big hunks of mud out
    11 there in the center of the highway. They sure
    12 didn't grow there.
    13 Q. Where do you think they came from?
    14 A. Off the wheels of garbage vehicles.
    15 Q. When was the time before that that there
    16 was any mud on the road?
    17 A. Let's see. Just about a week ago when it
    18 rained.
    19 Q. Now, you've -- even considering those
    20 instances, is it better now than it was a year ago?
    21 A. No. You get the big rains, we still get
    22 the big muds on the roads.
    23 Q. And have you ever complained about that
    24 to the landfill?
    25 A. No, I haven't.
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    1 Q. Have you ever complained to the state?
    2 A. No, I haven't.
    3 Q. Now, you believe -- you said you smell
    4 landfill odors on a regular basis. Can you -- can
    5 you be more specific for me?
    6 A. Well, the last time was Monday evening.
    7 And before that was -- was it Friday, I think, or
    8 something like that.
    9 Q. On Monday, how long did the odors last?
    10 A. I don't know. I didn't stick around. I
    11 went back inside.
    12 Q. Could you smell it inside?
    13 A. I was down -- no. Windows was closed,
    14 garage was closed up, and I was in the garage, so I
    15 couldn't smell it.
    16 Q. What's the most in terms of duration that
    17 you've ever smelled any odors coming off the
    18 landfill?
    19 A. Well, hard to say, because when it gets
    20 smelling, I get out of the smell. Close the
    21 windows in the house if they are open. Or if
    22 things are closed up and I'm outside doing
    23 something, I go inside. I smell it for at least an
    24 hour at a time.
    25 Q. And you would say -- or it's true that
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    1 the odor is not constant? I mean, it comes and
    2 goes?
    3 A. Right.
    4 MR. NORTHRUP: I don't have any
    5 further questions.
    6 THE HEARING OFFICER: Redirect.
    7 MS. SYMONS-JACKSON: Yes. Just a
    8 few questions.
    9 REDIRECT EXAMINATION
    10 BY MS. SYMONS-JACKSON:
    11 Q. First of all, Mr. Martens, you mentioned
    12 the big hunks of dirt that -- in the middle of the
    13 highway. Can you tell us what size you are talking
    14 about?
    15 A. Oh, you know, that big around
    16 (indicating). Well, for 6-inch diameter, around in
    17 there, down to an inch. Sometimes you get
    18 foot-size clogs that come out from between the
    19 tandem wheels.
    20 Q. Have you seen dirt falling off trucks
    21 coming out of the landfill before?
    22 A. No. You know, it's always there. I --
    23 very seldom do I see one coming right out of it. I
    24 have followed them, though, and got rapped with
    25 stuff at times.
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    1 Q. Stuff blowing off the trucks?
    2 A. Off the wheels. Coming up off the
    3 wheels.
    4 Q. Okay. Now, you indicated that you have
    5 not personally complained to the landfill about
    6 these areas of concern, the odors and the mud, the
    7 litter and the noise. Why not?
    8 A. What good does it do? It doesn't seem to
    9 do any good for anybody to complain.
    10 Q. The problems you've experienced over the
    11 past ten years, would you say they have improved
    12 over the years or just stayed the same?
    13 A. In some instances, it's improved some.
    14 But in others, it's the same old stuff.
    15 Q. Would you say the odors have been pretty
    16 consistent all along?
    17 A. Yes.
    18 Q. Now, looking again at Peoples Exhibit
    19 24. Can you look down there at the bottom, right
    20 underneath the chart. And I'll read for the
    21 record. It says: Do you authorize this Agency to
    22 send a copy of this log to the suspected source of
    23 pollutant? And there is two boxes there where you
    24 can check yes or no. And which box is checked?
    25 A. Yes.
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    1 Q. Now, do you -- do you have any knowledge
    2 of whether this was actually ever sent to the
    3 landfill?
    4 A. No, I don't.
    5 Q. But the landfill -- no one at the
    6 landfill has contacted you regarding these odor
    7 logs; is that correct?
    8 A. No.
    9 MS. SYMONS-JACKSON: That's all the
    10 redirect I have.
    11 THE HEARING OFFICER: Mr. Northrup.
    12 MR. NORTHRUP: Just -- just a
    13 couple of quick follow-up.
    14 RECROSS-EXAMINATION
    15 BY MR. NORTHRUP:
    16 Q. What are the things that have improved
    17 over the years at the landfill?
    18 A. There is a little bit of green. Not
    19 look -- I'm not looking out at nothing but clay all
    20 the time and as much -- well, blowing litter on
    21 that part of it, because they have moved the
    22 operation down where I can't see it now from my
    23 sliding glass door.
    24 Q. That's it. That's all?
    25 A. Yeah.
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    1 Q. I believe you'd earlier said that at
    2 times your wife would call the landfill, and Elmer
    3 would take some action. Is that correct?
    4 MS. SYMONS-JACKSON: I'm going to
    5 object. I don't think that was his testimony
    6 today.
    7 THE HEARING OFFICER: Mr. Northrup.
    8 MR. NORTHRUP: I thought it was.
    9 MS. SYMONS-JACKSON: It certainly
    10 wasn't brought out on redirect. Therefore, I would
    11 object as improper on recross.
    12 THE HEARING OFFICER: I don't know
    13 what you are referring to, so I don't think it's
    14 been brought out today at all.
    15 MR. NORTHRUP: That's fine then.
    16 I'm done.
    17 MS. SYMONS-JACKSON: No further
    18 questions.
    19 THE HEARING OFFICER: Can we go
    20 ahead and excuse this witness so he can go to
    21 work?
    22 Please call your next witness.
    23 MS. SYMONS-JACKSON: People call
    24 Mr. Wayne Siebke.
    25 THE HEARING OFFICER: Please swear
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    1 the witness. Have him spell his name.
    2 WAYNE SIEBKE,
    3 called as a witness, after having been first duly
    4 sworn, was examined and testified as follows:
    5 DIRECT EXAMINATION
    6 BY MS. SYMONS-JACKSON:
    7 Q. Mr. Siebke, can you please state your
    8 name for the record and spell your last name?
    9 A. Wayne L. Siebke. It's spelled
    10 S-I-E-B-K-E.
    11 Q. Mr. Siebke, where do you currently
    12 reside?
    13 A. 7716 - 78th Avenue West, Milan.
    14 Q. And where is that residence in location
    15 to the -- or in relation to the Watts landfill?
    16 A. It lays to the northeast corner of their
    17 property.
    18 Q. And approximately how far is your
    19 property from the Watts landfill property?
    20 A. My south property line is adjacent to
    21 their northeast corner.
    22 Q. Okay. So your property directly borders
    23 the landfill property?
    24 A. Directly borders, yes.
    25 Q. And who lives there at this address with
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    1 you?
    2 A. My wife, Janet, and two children. I
    3 guess as of a week ago, it would be three
    4 children. But Brandy, Rochelle and April.
    5 Q. You have three daughters?
    6 A. Yeah. Three daughters. Brandy is 21,
    7 Rochelle is 18, and April is 15.
    8 Q. And how long have you lived at this
    9 address?
    10 A. Approximately 15 to 20 years. I forget
    11 exactly. At least 15.
    12 Q. Now, you were present for the testimony
    13 from Mr. Jerry Martens when he discussed odors at
    14 the landfill, correct?
    15 A. Yes, I was.
    16 Q. Now, Mr. Siebke, you don't personally
    17 have any complaints regarding odor. Is that fair
    18 to say?
    19 A. That would be fair to say.
    20 Q. And why not?
    21 A. I don't have much sense of smell.
    22 Q. Okay. So there is a physical -- you have
    23 a physical, I guess, impairment that you just don't
    24 have a sense of smell?
    25 A. I guess. I have no idea what caused it.
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    1 So odors are not real offensive to me, although I'm
    2 aware there are odors there.
    3 Q. How are you aware there are odors there?
    4 A. Me and my wife have been up on top of the
    5 hill at times for a relaxing walk or whatever, and
    6 she will suggest that we leave, that it's not
    7 pleasant. We have been up there chopping wood and
    8 stuff different times, and we have to cease the
    9 operation because it's not pleasant. Last winter
    10 we baby-sat for a young boy, and we were walking,
    11 and he -- well, I sensed the smell, but it wasn't
    12 objectable to me. But to him, it was. He made an
    13 obvious yuck or, you know, covered his nose or, you
    14 know, whatever. So it was obviously objectable to
    15 him. But I sense --
    16 MR. NORTHRUP: I object to that.
    17 It's hearsay.
    18 MS. SYMONS-JACKSON: It's not
    19 hearsay for him to observe what the person with him
    20 was doing. He's not telling us what the person
    21 said or anything. Just making an observation.
    22 THE HEARING OFFICER: I'm going to
    23 allow it for -- just to show that that's what the
    24 child did, not as proof that there was a bad smell.
    25 BY MS. SYMONS-JACKSON:
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    1 Q. So, Mr. Siebke, would you agree there
    2 have been times when you and your wife have been
    3 outside of your property and you've had to go
    4 inside as a result of some odors?
    5 A. I don't think that would necessarily be
    6 true. We have had to relocate. I got 20 acres.
    7 And when my family senses the smells, it's
    8 generally when we are back towards the south of our
    9 property. The house lays towards the front of the
    10 property and down the hill. So I believe the
    11 smells tend to get blown over the house or
    12 whatever. Don't get that far. But I would say we
    13 don't get forced inside, no.
    14 Q. And how far is your house from the
    15 landfill?
    16 A. Well, I suppose -- anybody know how many
    17 rods is an acre? It's -- my property is 20 acres,
    18 and it's twice as deep as it is wide. So my house
    19 is located on the front half. So it's at least a
    20 ten-acre square away. I can't come up with -- I
    21 suppose it would be 500, 600 feet maybe. Just
    22 guessing.
    23 Q. Mr. Siebke, is there a creek located
    24 anywhere on your property?
    25 A. I don't think -- I don't know the
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    1 definition of creek. I don't think it would be
    2 classified as a creek. It's more of an erosion
    3 drainage ditch or whatever. I don't know that
    4 technical definition of a creek. But there is not
    5 constant water running there, so I don't think --
    6 in my opinion, it would not be considered a creek.
    7 It's more of a drainage ditch.
    8 Q. Where is that drainage ditch located on
    9 your property?
    10 A. The main one -- the main one -- several
    11 main ones run north and south, cutting my property
    12 approximately in half. Leaving a section on the
    13 east and a section on the west.
    14 Q. Does that main drainage ditch come into
    15 contact at the landfill property?
    16 A. It originates up at the landfill.
    17 Q. And do you know where that drainage ditch
    18 leads to at the other end?
    19 A. Yes. It goes to the Mississippi River.
    20 Q. And do you know whether -- you may not
    21 know this. Do you know whether this drainage ditch
    22 is what is referred to as outfall 001 at the
    23 landfill?
    24 A. I guess I kind of picked it up at the
    25 hearing that's what it was referred to. I think
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    1 that's the first time I recall it being referred to
    2 as that.
    3 Q. Are you aware of whether the landfill
    4 discharges any water or other materials from their
    5 landfill through their drainage ditch?
    6 A. Yes.
    7 Q. Now, is this drainage ditch something you
    8 can see from your house? Let me rephrase that.
    9 Okay. Is -- the point where the drainage
    10 ditch leaves the landfill property and enters your
    11 property, is that point something you can see from
    12 your house?
    13 A. No.
    14 Q. Okay. How frequently would you say
    15 you -- you actually go out and observe this
    16 drainage ditch?
    17 A. Probably two, three times a week.
    18 Q. And under what circumstances do you -- do
    19 you go out to observe the drainage ditch? What are
    20 you doing?
    21 A. Just going outside for a walk, maybe
    22 going out with the dogs, or just feel like going
    23 outside. I assume you are talking about the --
    24 what I can see from the house. I don't go back to
    25 the landfill where you said where it originates. I
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    1 don't go back there that often.
    2 Q. What point of the drainage ditch
    3 didn't -- let me ask you this.
    4 Have the landfill operations, in your
    5 opinion, had any impact on that drainage ditch?
    6 A. Definitely.
    7 Q. And can you explain that for us?
    8 A. The erosion is bad, for lack of a better
    9 term. I mean, whatever the worst term you can come
    10 up with is probably what I would consider it.
    11 Q. By erosion, do you mean the drainage
    12 ditch has gotten deeper or gotten larger?
    13 A. Well, it can't get any deeper than the
    14 Mississippi River. Or basically there is a culvert
    15 going under Highway 92, which is directly in front
    16 of my place. Water just will not cut a ditch
    17 deeper than the excess or what -- where it goes
    18 out.
    19 So, yes, it is getting somewhat deeper
    20 and wider. It's washing trees out. The course
    21 changes, and something will block it, and it will
    22 cause a swirl in the water, and it will wash roots
    23 away from a tree that's next to the creek bank.
    24 And it just -- just typical erosion. I don't know
    25 how else to explain it.
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    1 Q. Have you lost any trees or other
    2 vegetation as a result of the erosion in this
    3 drainage ditch?
    4 A. Oh, yes. I'm not concerned with it,
    5 though. I don't think it was anything of any value
    6 really. It was a nice oak tree that I believe was
    7 killed partially maybe erosion and maybe
    8 compaction. But it's not within sight of the
    9 house, and I got 20 acres of timber, so it's not
    10 that. Trees live and die, so I'm not that
    11 concerned with it.
    12 Q. But the trees that have died, I guess,
    13 along the drainage ditch, you've attributed to the
    14 changing current or the erosion in that drainage
    15 ditch?
    16 A. The ones that the roots were washed away,
    17 yeah. The dirt was washed away from the roots. In
    18 my opinion, I think anybody's opinion, definitely
    19 be the cause of that, yeah.
    20 Q. Any other problems you've noticed or
    21 impacts you've noted from the landfill in that
    22 drainage ditch?
    23 A. Lot of debris that gets washed out with
    24 the water. We have found -- you name it. Their
    25 tires, tampon applicators, surgical gloves, you
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    1 know, tin cans. Anything that would go in a
    2 landfill, we have seen. Bottles.
    3 Q. Mr. Siebke, when you say debris, do you
    4 mean refuse, trash from the landfill?
    5 A. Yes. A big one I just thought of is
    6 plastic garbage bags seems to be the main thing you
    7 see.
    8 Q. Empty bags or bags full of stuff?
    9 A. Both. Mostly empty, I guess. It's hard
    10 to say.
    11 Q. And can you describe for us the frequency
    12 with which you observed this refuse in the drainage
    13 ditch?
    14 A. Well, it's particularly worse after a big
    15 rain, like the water ran hard down there last night
    16 and ran over my road last night, and I know if we
    17 go out there, we would see a truckload of it.
    18 Q. Did you go down there?
    19 A. No. It was dark when I got home and dark
    20 when I left. But every time it rains heavy, there
    21 is stuff in there. And then any time you go down
    22 there, you could observe refuse laying along the
    23 creek banks.
    24 Q. Now, what happens when you observe this
    25 refuse in the creek? What do you do? Or in the
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    1 drainage ditch. Excuse me.
    2 A. For the most part, I haven't done too
    3 much about it. The -- within the past, I suppose
    4 four or five years, it wasn't -- it wasn't so
    5 severe before. But the operation has changed, and
    6 they are actively filling in that. It would be
    7 northeast corner now.
    8 So that has -- the problem has really
    9 gotten worse since they have started actively
    10 filling that corner. And I suppose when it first
    11 got bad, I contacted the landfill, and it was very
    12 hard to get through to them. But I think some new
    13 employees came to work at that time, and I believe
    14 one of them may have been Tom. I'm not sure who
    15 they were.
    16 But I was up there complaining. And for
    17 some reason, must have been a nice day or whatever,
    18 I got them to go for a walk. And they came down to
    19 where I was concerned, where there was kind of a
    20 log damn there. And it would slow the water up.
    21 And it caught a lot of refuse, and the creek had
    22 overflowed, and a lot of stuff laying on the creek
    23 banks. And I told them -- I suppose it's really
    24 coming from my wife complaining to me about it.
    25 She had been down there and seen it, I believe.
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    1 Prompted me to go up and talk to them.
    2 When they seen how bad it was, they had
    3 people work overtime that night to come down and
    4 pick it up. And they don't do a complete job when
    5 they do come down, but they do make an attempt to.
    6 They pick up the obvious.
    7 And the main time I call them is when the
    8 creek runs over my driveway, like it did last
    9 night. And most of the time, there is garbage bags
    10 of stuff laying along there. And they do a pretty
    11 fair job of picking up in that immediate area. But
    12 they don't pursue the creek back southerly from
    13 the -- my driveway.
    14 Q. Now, do the garbage bags actually
    15 overflow the drainage ditch and come up onto your
    16 property or onto your driveway?
    17 A. Yeah. I think I've seen plastic bags lay
    18 up on the driveway. Whatever would float is what
    19 would end up laying on top of the driveway. If
    20 it's not washed down to New Orleans, it gets caught
    21 along the edges. Yes, there has been plastic bags
    22 there.
    23 Q. You mentioned an employee named Tom. Is
    24 that Tom Jones you are talking about?
    25 A. I believe it is, yes.
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    1 Q. You also mentioned a log damn in the
    2 drainage ditch. Is that something that is there
    3 naturally or has that been installed by someone?
    4 A. No. I believe that occurred before I
    5 bought the property. There was a logging operation
    6 there that drug trees out, and I think they made a
    7 creek -- a temporary creek crossing there, and I
    8 believe they threw tree tops and stuff and pushed
    9 dirt in to drive across.
    10 But the erosion from the landfill exposed
    11 those trees and caught the garbage bags and stuff,
    12 refuse.
    13 Q. How would you say the presence of refuse
    14 in this drainage ditch on your property has
    15 affected your enjoyment of your property?
    16 A. Well, I guess for me personally, I
    17 wouldn't say it's affected me drastically, other
    18 than the complaints I get from my wife. I guess
    19 when I bought the property, the landfill was there,
    20 and I guess I had it in my head that I was going to
    21 try and be a neighbor and get along with them.
    22 And as long as it's -- it wasn't on my
    23 kitchen table or whatever, I wasn't going to really
    24 make any major complaints. So I guess honestly I
    25 can't say that it bothers me that drastically, but
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    1 it's not pleasant, I guess.
    2 Q. But it bothers your family?
    3 A. Yeah. I would say so.
    4 Q. And when you observed the refuse in the
    5 drainage ditch, is there water also present in the
    6 drainage ditch?
    7 A. I would -- I'd say no probably. I mean,
    8 I don't know what we classify as water. Probably
    9 50, 75 percent of the time, the creek bottom, or
    10 whatever, or the drainage ditch bottom, is wet.
    11 Approximately what you call a trickle. I don't
    12 know that I would call that water.
    13 I think you are talking flowing water
    14 that would flush refuse down. It's not -- I never
    15 seen water that would flush it down other than
    16 during a rainstorm or immediately after.
    17 Otherwise, it's just a trickle in, and the refuse
    18 laying there.
    19 Q. You have observed standing water in the
    20 bottom of the drainage ditch?
    21 A. Oh, yes. I've been down in my culvert
    22 trying to unplug it when it's raining.
    23 Q. And there has been refuse in that
    24 standing?
    25 A. Yes.
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    1 Q. At one time, I was almost -- when I tried
    2 to unplug it, I thought I was going to get sucked
    3 in the culvert. It kind of got unplugged and kind
    4 of scared me. All of a sudden, there was a big
    5 suction of, you know, it kind of got unplugged and
    6 kind of felt like it was going to suck me in
    7 almost.
    8 Q. Because of the volume of water?
    9 A. Oh, yes. Yes. 30-inch culvert, and it
    10 runs. I could crawl through it, and it would take
    11 something for me to crawl through anything.
    12 Q. Mr. Siebke, it's your opinion that the
    13 refuse in your drainage ditch, the source of that
    14 refuse is the Watts landfill?
    15 A. Oh, definitely.
    16 MS. SYMONS-JACKSON: Those are all
    17 the questions I have on direct.
    18 THE HEARING OFFICER: Mr. Northrup.
    19 MR. NORTHRUP: Okay.
    20 CROSS-EXAMINATION
    21 BY MR. NORTHRUP:
    22 Q. You said you've seen standing water in
    23 the drainage ditch, particularly by the culvert?
    24 A. Yes.
    25 Q. Do you observe that only when it's
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    1 raining?
    2 A. Yes.
    3 Q. You also mentioned that that culvert gets
    4 plugged up.
    5 A. Yes.
    6 Q. What causes it to get plugged up?
    7 A. I would say a tree limb or something
    8 would be the -- what catches the garbage bags and
    9 stuff. A tree limb on its own wouldn't plug it up,
    10 you know. It takes garbage bags or something like
    11 that to plug up the spaces between the twigs.
    12 Q. Okay. Is there any erosions that
    13 originates from your property that goes in this
    14 ditch?
    15 A. I suppose there is. Minimal. Most of my
    16 ditches that go into that doesn't show active
    17 erosion. There is vegetation growing in most all
    18 of them, and there is no vegetation in that one.
    19 Q. Okay. So there are a couple of other
    20 ditches that intersect with this?
    21 A. Yeah. There is three of them, yes.
    22 Q. Has there ever been a time when you or
    23 your wife has complained to the landfill where they
    24 haven't come down to pick up trash?
    25 A. Yes, there was a time.
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    1 Q. Okay. When was that?
    2 A. Well, like I was trying to describe
    3 earlier. I couldn't put a date to it. But before
    4 they realized there was a real problem there, I'd
    5 say, and I think there have been times they have
    6 been too busy. But it takes a second phone call to
    7 remind them.
    8 Q. And if you make that second phone call,
    9 they come down?
    10 A. I would say probably.
    11 Q. When did you have this walk with Tom?
    12 A. Well, it was shortly after his employment
    13 there.
    14 Q. More than a year ago?
    15 A. Yes.
    16 Q. More than --
    17 A. I believe he's worked there three or four
    18 years. I'm not sure.
    19 Q. Have you ever complained to the landfill
    20 about this culvert being blocked?
    21 A. Oh, yes.
    22 Q. Okay. And has the landfill been
    23 responsive to those complaints?
    24 A. Yes. As far as coming down and cleaning
    25 up the debris after the -- after it's created. But
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    1 they don't try to solve the problem. I've -- I've
    2 asked them. I've been on them for three or four
    3 years to dredge that ditch out prior to the culvert
    4 so that there is a place for the water to
    5 accumulate in so it don't run over the culvert.
    6 And I guess I've also approached them about putting
    7 a dry damn in the ravine to slow the water down to
    8 alleviate the erosion problem.
    9 Q. Can you quantify how much trash you've
    10 seen in your drainage ditch? I mean, is it a lot,
    11 is it not very much?
    12 A. Anything is too much. But, yes,
    13 definitely more than a pickup load. When they come
    14 down and clean up, I would say they leave 10, 12
    15 bags laying there. I cannot recall ever seeing
    16 them come back and pick up the bags. I think they
    17 have, but I don't know that I've ever seen it. I
    18 know one time I loaded them up and took them up
    19 there to them. Yeah. But when they come down,
    20 they leave at least a dozen bags or so of stuff
    21 that they have picked up.
    22 Q. Okay. What size bags are you talking
    23 about?
    24 A. Oh, your average, like a leaf bag or
    25 something, a big garbage bag. I wouldn't say it
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    1 was huge, but --
    2 MR. NORTHRUP: I don't have any
    3 further questions.
    4 THE HEARING OFFICER:
    5 Mr. Symons-Jackson.
    6 MS. SYMONS-JACKSON: I don't have
    7 any redirect.
    8 THE HEARING OFFICER: Can we go
    9 ahead and excuse this witness then?
    10 MS. SYMONS-JACKSON: Yes.
    11 MR. DAVIS: Ms. Hearing Officer,
    12 I've been advised a member of the public may wish
    13 to make a statement.
    14 THE HEARING OFFICER: Okay. Have a
    15 seat for us.
    16 THE WITNESS: Sure.
    17 THE HEARING OFFICER: Off the record
    18 for a minute.
    19 (Off-the-record discussion held.)
    20 THE HEARING OFFICER: Please swear
    21 the witness.
    22 HEIDI SCHULTZ,
    23 called as a witness, after having been first duly
    24 sworn, was examined and testified as follows:
    25 THE HEARING OFFICER: Could you
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    1 please state your name for the record?
    2 THE WITNESS: Sure. My name is
    3 Heidi Schultz.
    4 THE HEARING OFFICER: Okay.
    5 THE WITNESS: I live at 8320 - 78th
    6 Avenue West in Milan. Address is Milan.
    7 THE HEARING OFFICER: You may go
    8 ahead and make whatever statement you wish to
    9 make.
    10 THE WITNESS: This morning I was
    11 reading in the paper where this testimony and the
    12 hearing was going on about the landfill.
    13 My husband and I bought our property
    14 along Andalusia Road and moved in in the spring of
    15 '93. And not too long after that was when we
    16 began to notice the smell. And it would be -- the
    17 odor was the first thing that we noticed. Of
    18 course, the wind has to be blowing the right
    19 direction. We live a little farther away than
    20 Mr. Whitley from the landfill. But the smell still
    21 reaches out without any problems on a windy day.
    22 Also the part that really bothered me the
    23 most was we have moved in in the spring. And that
    24 summertime that I started to hear the trucks at
    25 night, and I would say that that's the part that
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    1 really bothers me the most or that caused me the
    2 most concern. Between like 11:30 and maybe 1:00 in
    3 the morning, you would hear trucks up there. And
    4 you'd, like, hear the back-up beep, beep, beep of
    5 back-up vehicles.
    6 And I called the sheriff's department
    7 twice. Once probably during the summertime of '93
    8 and once during the summertime of '94. I'd have to
    9 go back to the sheriff's department to find out the
    10 records of the calls. But I asked them to please
    11 log in the calls, that I wanted a deputy to go up
    12 and find out what was going on up in the landfill
    13 area, that somehow there was large pieces of
    14 equipment.
    15 That -- we sleep with our windows open
    16 also in the summertime if the whether is nice, and
    17 you could easily hear these large pieces of
    18 equipment moving. Earth moving kind of equipment
    19 moving ground around. And that's what I wanted to
    20 add.
    21 THE HEARING OFFICER: Okay. Are
    22 there any questions?
    23 MR. DAVIS: Yes. I have a few.
    24 CROSS-EXAMINATION
    25 BY MR. DAVIS:
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    1 Q. Ma'am, what is your occupation?
    2 A. I'm a human resource consultant.
    3 Q. And what's your educational level?
    4 A. I have a bachelor's degree of business
    5 administration work on my MBA.
    6 Q. I'm sorry?
    7 A. Work on my MBA at Iowa.
    8 Q. How long have you lived in the Quad
    9 Cities area?
    10 A. I've only lived in the Quad City area --
    11 came here when I was married in November of '92.
    12 And we purchased the property in that spring. We
    13 bought our house that next spring. So since the
    14 spring of '93 is when we have been living out along
    15 Andalusia Road.
    16 Q. My next few questions imply that we are
    17 talking generally, but if there is any specific
    18 instance, please try to identify this for us as far
    19 as time and such.
    20 Have the odors been a continuing problem?
    21 A. On and off. It's not a consistent where
    22 you'll smell it every single day. But when it
    23 comes, it seems to come. It will be a couple of
    24 nights. Then it will go away again for a little
    25 while. And a couple of nights, pretty strong. And
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    1 it will go away again. It is enough to make you
    2 want to go in the house and close the windows at
    3 times.
    4 Q. Have you noticed odors at least weekly?
    5 A. I would -- it would be hard for me to say
    6 it was weekly. It's definitely more frequent --
    7 it's on a frequent enough basis that you are aware
    8 of it, and you are like, oh, there is the landfill
    9 again.
    10 We have three acres of property up there
    11 and have patios that we entertain on, and it is
    12 always a fear of mine that the odors are going to
    13 hit on a day when we are having people for a
    14 barbecue.
    15 Q. Has your fears been realized? Have you
    16 detected odors?
    17 A. Not to the best of my recollection. No,
    18 it hasn't hit on a Friday or Saturday night when we
    19 are having a party. We don't entertain that
    20 frequently though.
    21 Q. Have the odors unreasonably interfered
    22 with your enjoyment of your life and property?
    23 A. It has sent us inside at times. And we
    24 have a new infant. We had a baby in April of '96.
    25 And that has heightened my concern again, that if
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    1 there is a problem there, we don't know what that
    2 smell is. If it's any type of a toxic odor or what
    3 it is, it's a concern with having an infant.
    4 MR. DAVIS: Thank you. I have no
    5 other questions.
    6 THE HEARING OFFICER: Mr. Northrup.
    7 CROSS-EXAMINATION
    8 BY MR. NORTHRUP:
    9 Q. You said the odor has sent you inside on
    10 a few times.
    11 A. Uh-huh.
    12 Q. Can you quantify what a few times is?
    13 A. Probably a dozen. And it annoys your
    14 nasal passages.
    15 Q. Okay. And this has been since you moved
    16 in in '93?
    17 A. Yes.
    18 Q. Okay.
    19 A. Approximately June 1st, Labor Day or
    20 Memorial weekend.
    21 Q. And I'm sorry if I didn't catch this
    22 earlier. Do you know how far in distance you are
    23 from the landfill?
    24 A. You know, no, I don't. And I'm not a
    25 good one to judge that. Probably as the crow flys,
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    1 I think we are about a half mile. But that is a
    2 guesstimate. I know if you climb up to the top of
    3 a couple of the little peaks of hills, you can see
    4 it. I can see the top of the landfill. But we
    5 cannot see it from our house at all. We are
    6 protected by lots of trees.
    7 Q. Have you ever seen -- on these occasions
    8 where you hear noise, have you ever seen any trucks
    9 or equipment?
    10 A. No, I can't not see the landfill. At one
    11 time, I was -- attempted to go up there in the
    12 evening when I was hearing the noise, and there is
    13 a large dog. They have a big dog up there one time
    14 when I drove up the road, so I wasn't about to get
    15 out of my car.
    16 Q. The noise. When was the last time you
    17 heard any noise problems?
    18 A. And I was sitting here this morning
    19 trying to think of the last time I heard trucks up
    20 there. And it was this summertime. During this
    21 summer when we were outside in the summertime.
    22 Especially being up -- in fact, it's definitely
    23 been since the baby was born, 'cause having a new
    24 infant, there was times when we were up in the
    25 middle of the night and I could hear trucks up
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    1 there. And basically what I would hear is that
    2 beep, beep, beep. The back-up noise, you know.
    3 When trucks back up, they have that beep, beep,
    4 beep that goes off.
    5 Q. How do you know that's coming from
    6 equipment at the landfill?
    7 A. Well, we are in the middle of nowhere.
    8 There is nothing else moving.
    9 Q. You don't look out your window down
    10 Andalusia Road?
    11 A. Look out towards that direction, and
    12 that's where the sound is coming from. But there
    13 is nothing else out there but woods.
    14 Q. That beep, beep, beep noise, is that --
    15 is that annoying to you?
    16 A. It's loud enough that if you are laying
    17 in bed, you sure can hear it. After 11 o'clock at
    18 night.
    19 Q. Does it ever wake you up?
    20 A. Has that specifically woken me up? I
    21 couldn't say that that's what actually woke me up.
    22 When I am awake, though, it's something that I can
    23 definitely hear laying in bed. You can hear the
    24 beep, beep, beep.
    25 MR. NORTHRUP: That's all the
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    1 questions I have.
    2 RECROSS-EXAMINATION
    3 BY MR. DAVIS:
    4 Q. Has the noise, when you are awake and
    5 you've heard it, inhibited your ability to get back
    6 to sleep or to go to sleep?
    7 A. It's concerned me. I'm wondering what
    8 they could possibly be doing up there so late in
    9 the evening. So yeah, it has inhibited me from
    10 going back to sleep.
    11 MR. DAVIS: Thank you, ma'am.
    12 THE WITNESS: Also the mud on the
    13 road. It's only -- after it rains, it seems to be
    14 the biggest problem. I seem to time it, lucky me,
    15 when the trucks are coming out in the early in the
    16 morning on my way to work several times when a
    17 truck has pulled in front of me as I'm getting
    18 ready to pass the landfill road, and I have
    19 definitely seen large chucks of mud fall off the
    20 back of underneath the wheel wells and fall onto
    21 the road.
    22 BY MR. DAVIS:
    23 Q. So you observed mud coming off the
    24 vehicles leaving the landfill?
    25 A. Coming on my vehicle.
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    1 Q. Has it changed the driveability of the
    2 road conditions?
    3 A. It makes you slow. You are very cautious
    4 there, because it is slick and slippery.
    5 Especially if it's raining. The road is a little
    6 slick, you know. When you have all this other, you
    7 lose your traction.
    8 Q. And there is a sign posted by the highway
    9 people?
    10 A. Yeah. I remember when that sign went
    11 up. Again, you kind of get used to seeing it every
    12 day. I couldn't tell you if it was still up. I
    13 remember when it went up. That's since we moved in
    14 that -- since it went up. That says mud on the
    15 road.
    16 MR. DAVIS: Nothing further.
    17 RECROSS-EXAMINATION
    18 BY MR. NORTHRUP:
    19 Q. The inability to get back to sleep, you
    20 said that's caused -- or you are concerned about
    21 whether --
    22 A. What could be going on.
    23 Q. What the noise -- what could be going on?
    24 A. Yeah.
    25 Q. So what is actually keeping you up? Is
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    1 it your thinking of the concern, or is it the
    2 noise?
    3 A. It's the concern.
    4 MR. NORTHRUP: Okay. I don't have
    5 any further questions.
    6 THE HEARING OFFICER: Okay. Thank
    7 you very much.
    8 THE WITNESS: Thank you.
    9 THE HEARING OFFICER: Are there any
    10 other members of the public? Okay.
    11 Call your next witness then.
    12 Off the record for a minute.
    13 (Off-the-record discussion held.)
    14 (Recess taken.)
    15 THE HEARING OFFICER: All right.
    16 Let's go back on the record. We are resuming with
    17 Ron Mehalic. And I remind you that you are under
    18 oath. He is your witness.
    19 RON MEHALIC,
    20 called as a witness, after having been previously
    21 duly sworn, was examined and testified as follows:
    22 CONTINUED DIRECT EXAMINATION
    23 BY MS. SYMONS-JACKSON:
    24 Q. Okay. Now, Ron, we had been talking
    25 yesterday when we broke for the evening regarding
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    1 your inspection reports at this facility, and we
    2 are just going to keep doing that today.
    3 So to start off, I will hand you Peoples
    4 Exhibit 32. And would you agree that this is a
    5 copy of your July 28, 1993 inspection report?
    6 A. Yes, it is.
    7 Q. And what observations did you make on
    8 this date? Let me take a step back.
    9 During your previous inspection reports,
    10 you had noted an area of exposed refuse on the
    11 southern slope of the landfill. Do you recall that
    12 testimony?
    13 A. Yes, I do.
    14 Q. Okay. And had anything been done to that
    15 area of exposed refuse on this date?
    16 A. Yes.
    17 Q. What had been done?
    18 A. The facility covered the areas with
    19 synthetic fabric.
    20 Q. Did you make any observations on this
    21 date regarding leachate?
    22 A. Yes, I did.
    23 Q. What observations did you make?
    24 A. I observed leachate seeps at the
    25 Northwestern bottom of the waste placement area.
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    1 Q. Did you observe one seep, or give me the
    2 number of seeps you observed?
    3 A. Two.
    4 Q. Ron, is this an area where you have had
    5 previously observed either leachate seeps or
    6 repaired leachate seeps?
    7 A. Yes.
    8 Q. Okay. And do you have any photographs
    9 attached to your inspection report, which is
    10 Exhibit 32, which accurately and truly depict those
    11 leachate seeps?
    12 A. Photographs 6 and 7.
    13 Q. Okay. Is that it?
    14 A. And also 21 and 22.
    15 Q. Okay. And how did the leachate appear on
    16 that date?
    17 A. Appear as in color?
    18 Q. Well, just describe what it looked like.
    19 A. Describe it as a brownish, oily liquid.
    20 Q. Was there any odor associated with the
    21 leachate?
    22 A. Not that I can recall.
    23 Q. Okay. Now, Ron let's move on. I'm going
    24 to hand you Peoples Exhibit 33. Would you agree
    25 this is a copy of your September 2, 1993 inspection
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    1 report?
    2 A. Yes, it is.
    3 Q. Okay. Now, Ron are you familiar with the
    4 requirements of submitting a significant
    5 modification application?
    6 A. All the requirements?
    7 Q. No. I mean, was the landfill required to
    8 submit a significant modification application?
    9 A. Yes.
    10 Q. Do you recall when they were required to
    11 have that application submitted to the Agency?
    12 A. The Agency called their sig-mod in, and
    13 it was due September 1st of 1993.
    14 Q. Okay. Now, during this inspection of
    15 September 2, 1993, did you inquire as to the status
    16 of that sig-mod application?
    17 A. Yes.
    18 Q. And what was the status of the
    19 application? Had it been submitted?
    20 A. It was currently being worked on.
    21 Q. Can you give us a brief description of
    22 what is meant by a sig-mod application?
    23 A. A sig-mod application should be submitted
    24 by facilities to come into compliance with the new
    25 Subtitle D regulations. They should incorporate in
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    1 the sig-mod groundwater monitoring, groundwater
    2 impact assessment, gas recovery, if needed, other
    3 facets that I really can't remember.
    4 Q. Okay. Now, Ron, as of today, the 30th
    5 day of October, 1996, does the Taylor Ridge
    6 facility yet have a modified sig-mod?
    7 A. Not to my knowledge.
    8 Q. Okay. Now, let's look at Peoples Exhibit
    9 34. Do you agree this is a copy of your inspection
    10 report from October 20, 1993?
    11 A. Yes.
    12 Q. Okay. Let's move on to Peoples Exhibit
    13 35. Would you agree this is a copy of your
    14 inspection report from December 13, 1993?
    15 A. Yes, it is.
    16 Q. Okay. Please identify the next exhibit
    17 for the record, please, Exhibit 36. Is this a copy
    18 of your February 18, 1994 inspection report?
    19 A. Yes, it is.
    20 Q. Okay. Peoples Exhibit 37. Is this a
    21 copy of your inspection report from April 13, 1994?
    22 A. Yes, it is.
    23 Q. And, Ron, did you observe any leachate
    24 during this inspection?
    25 A. Yes, I did.
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    1 Q. Can you tell me where at the facility the
    2 leachate was located?
    3 A. Along the southwestern portion of the
    4 landfill, and at the southeastern portion of the
    5 landfill, in the middle of the landfill.
    6 Q. Okay. Ron, how many leachate seeps did
    7 you observe?
    8 A. Approximately four.
    9 Q. Do you have photographs attached to your
    10 inspection report that accurately and truly depict
    11 the appearance of the leachate seeps on that date?
    12 A. Yes.
    13 Q. Which photographs?
    14 A. Photographs 8, 19, 20, and 21.
    15 Q. Can you tell us what the leachate looked
    16 like on that day?
    17 A. A brownish, orangeish liquid.
    18 Q. Were there any other violations that you
    19 observed during this inspection?
    20 A. Yes.
    21 Q. And can you tell us about those, please.
    22 A. The failure to comply with terms and
    23 conditions of permits.
    24 Q. And is that relating to the sig-mod
    25 application?
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    1 A. Yes.
    2 Q. It had not yet been submitted?
    3 A. Yes.
    4 Q. Okay. What about any problems with
    5 odors? Did you notice any odors on that date?
    6 A. Yes.
    7 Q. Can you tell us about the odors -- odor
    8 problems you observed or noticed?
    9 A. I just noticed odor problems at one
    10 portion of the landfill.
    11 Q. What portion was that?
    12 A. At the southwestern portion of the
    13 landfill.
    14 Q. Was that the same area where you had
    15 noticed some leachate seeps?
    16 A. Yes.
    17 Q. Did you observe -- observe a gas hole in
    18 the area of the odors?
    19 A. Yes.
    20 Q. Do you have a photograph that shows that
    21 gas hole?
    22 A. Yes, I do.
    23 Q. What photograph?
    24 A. Photograph 8.
    25 Q. And is that photograph a true and
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    1 accurate representation of what you observed on
    2 that day?
    3 A. Yes.
    4 Q. Ron, can you tell us how a -- a gas hole
    5 formed at a landfill?
    6 A. A gas hole is created by decomposition of
    7 the waste in place. And as it decomposes, it
    8 creates methane and other odors associated with
    9 it. And as the pressure increases, it seeks an
    10 avenue of least resistance and pops out in that
    11 area.
    12 Q. Ron, would you agree that the pressure of
    13 the gas in a landfill would have to be fairly
    14 substantial to cause a gas hole?
    15 A. Yes.
    16 THE HEARING OFFICER: Ron, you need
    17 to speak up, please.
    18 THE WITNESS: Okay.
    19 BY MS. SYMONS-JACKSON:
    20 Q. Ron, did you also observe problems with
    21 erosion on the date of this inspection?
    22 A. Yes.
    23 Q. Can you describe what you observed with
    24 regard to erosion?
    25 A. The beginnings of an erosion -- erosional
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    1 channel, a rill, forming.
    2 Q. At what part of the landfill?
    3 A. At the northern part.
    4 Q. Okay. Ron, is it your opinion that
    5 problems with erosion can contribute to problems
    6 with leachate and odor?
    7 A. Eventually if they are not remediated.
    8 Q. Okay. And how can that -- how can those
    9 problems result from the erosion if that goes
    10 unremediated?
    11 A. Well, in time, as during rain events or
    12 as runoff is cascading off the sides of a given
    13 slope, it would have a tendency to transect through
    14 these channels and eventually encounter waste in
    15 place at some points.
    16 Q. Ron, is it your opinion that at this
    17 facility, the Taylor Ridge facility, uncorrected
    18 erosional problems have contributed to the problems
    19 with leachate and odor?
    20 A. Yes.
    21 Q. And did I ask you already if there are
    22 any photographs that depict the erosional rills
    23 that you observed?
    24 A. Yes, you did.
    25 Q. And you identified those for us?
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    1 A. Photos 14 and 15.
    2 Q. Okay. I'm going to hand you now what we
    3 have marked as Peoples Exhibit 38. Do you agree
    4 this is a copy of your inspection report from May
    5 25, 1994?
    6 A. Yes.
    7 Q. And did you, again, note on this day any
    8 problems with regard to leachate seeps?
    9 A. Yes.
    10 Q. And where were those leachate seeps
    11 located?
    12 A. At the southwest -- or southeastern
    13 portion at the inner part of the landfill and at
    14 the southern portion of the upper slope at the
    15 landfill.
    16 Q. Ron, is this the same general area where
    17 you had noted leachate seeps on prior inspections?
    18 A. Yes.
    19 Q. Do you have any photographs attached to
    20 your inspection report that adequately or
    21 accurately depict those leachate seeps?
    22 A. Yes, I do.
    23 Q. Which photographs?
    24 A. Photographs 10, 16, 17, and 18.
    25 Q. Now, Ron, directing your attention to
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    1 photographs 9 and 10. Did you observe any
    2 erosional rills in those photographs?
    3 A. Yes, there are.
    4 Q. And had you observed erosion in that
    5 location at the landfill on previous inspections,
    6 if you recall?
    7 A. Yes.
    8 Q. Now, what did you observe with regard to
    9 gas holes or odor during this inspection?
    10 A. At this particular time, I didn't see any
    11 gas holes. They were apparently remediated.
    12 Q. So you saw some areas where there had
    13 previously been gas holes but had now been
    14 remediated?
    15 A. Yes.
    16 Q. Now, Ron, you indicated that the leachate
    17 seeps you observed during this inspection were in
    18 the same approximate location as leachate seeps you
    19 had observed during previous inspections, correct?
    20 A. Yes.
    21 Q. Now, if a facility such as Taylor Ridge
    22 continues to have leachate seeps generated in the
    23 same general area time and time again, what does
    24 that tell you about the remedial actions that the
    25 facility is undertaking to correct the leachate
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    1 seeps?
    2 A. Remedial actions. The immediate --
    3 excuse me. The immediate remedial actions taken
    4 would rectify them on the short-term. But as far
    5 as the long-term remedial action, it would need to
    6 be further addressed.
    7 Q. And do you know what the facility was
    8 doing in the short-term to address the leachate
    9 seeps?
    10 A. Yes. They would cover the area with clay
    11 and compact it.
    12 Q. Was there any vegetative cover in place
    13 over the area where the leachate seeps were noted?
    14 A. No.
    15 Q. Now, Ron, in your opinion, if clay or
    16 soil is put down to cover a leachate seep and a
    17 rain occurs without vegetative cover, what's going
    18 to happen to that clay or soil?
    19 A. Eventually, over time, it would erode.
    20 Q. And the leachate would come back?
    21 A. In time.
    22 Q. All right. Let's move on to your -- to
    23 Peoples Exhibit 39. Would you agree this is a copy
    24 of your inspection report from August 3, 1994?
    25 A. Yes.
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    1 Q. Did you observe any areas of remediated
    2 leachate seeps or gas holes during this inspection?
    3 A. Yes.
    4 Q. In what portion of the landfill?
    5 A. The northern portion.
    6 Q. Ron, I want to direct your attention to
    7 the photographs attached to this report. Are there
    8 any photographs that show refuse protruding from
    9 the cover material on the landfill?
    10 A. Could you repeat that?
    11 Q. Sure. May I see the exhibit, please.
    12 A. (Complies.)
    13 Q. Thank you. Okay. I'll withdraw that
    14 last question, Ron.
    15 Can you tell me, are there any
    16 photographs attached to your inspection report that
    17 depict erosional channels at the landfill?
    18 A. Yes.
    19 Q. Which photographs?
    20 A. Photographs 18 and 9. The beginnings.
    21 Q. And what portion of the landfill are
    22 those erosional channels located?
    23 A. The northern part of the landfill.
    24 Q. Okay. Ron, I'm going to hand you the
    25 next exhibit, Peoples Exhibit 40. Would you agree
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    1 this is a copy of your inspection report from
    2 October 6, 1994?
    3 A. Yes.
    4 Q. Ron, did you observe any leachate seeps
    5 during this inspection?
    6 A. Yes.
    7 Q. Where were those seeps located?
    8 A. Photograph 21 at the southern -- at the
    9 southeastern portion of the slope within the
    10 landfill area.
    11 Q. Okay. And did you observe any erosional
    12 rills during this inspection?
    13 A. Yes.
    14 Q. And what photographs are those erosional
    15 rills depicted?
    16 A. Photograph 12 depicts an erosional rill
    17 with a silt fence right at the bottom portion of
    18 the rill. And photograph 17 and 18.
    19 Q. And what portion of the landfill are
    20 those photos taken?
    21 A. Photographs 17 and 18 were taken at the
    22 northern slope of the landfill.
    23 Q. What about photograph 12?
    24 A. It's at the southwestern slope of the
    25 landfill.
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    1 Q. Okay. Ron, I want to direct your
    2 attention for a minute to the eastern side slope of
    3 the landfill. You've got a map that's attached --
    4 or a diagram that's attached to your inspection
    5 report, isn't that correct?
    6 A. Yes.
    7 Q. Now, referring to that or to the
    8 photographs in your inspection report, can you tell
    9 me if you observed any problems with regard to the
    10 eastern side slope of the landfill?
    11 A. The only problem being the beginning of
    12 erosion.
    13 Q. Did you observe any exposed or uncovered
    14 refuse on the eastern side slope of the landfill?
    15 A. No.
    16 Q. May I see a copy of the inspection
    17 report.
    18 A. (Complies.)
    19 Q. Ron, looking at the narrative portion of
    20 your inspection report, which is Peoples Exhibit
    21 40, I want to direct your attention to paragraph
    22 four. Can you take a look at that paragraph and
    23 maybe that will refresh your recollection as to
    24 whether there was any exposed refuse you observed
    25 during this inspection.
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    1 A. Okay. Yes.
    2 Q. Okay. Now, can you tell me what you
    3 observed on that date?
    4 A. Just observed portions of trash starting
    5 to poke out, but not necessarily dotting the
    6 landfill with it. It was just something that
    7 should be remediated at some point.
    8 Q. Is it your opinion, Ron, that there was
    9 an inadequate amount of cover on the eastern side
    10 slope and that inadequate amount of cover was
    11 allowing the refuse to poke out, as you said?
    12 A. It needs to be addressed. At this
    13 juncture, I suppose it could have been inadequate.
    14 Q. And did you make a comment to any of the
    15 landfill employees as to the need to correct the
    16 cover --
    17 A. Yes, I did.
    18 Q. -- in that area?
    19 A. Yes, I did.
    20 Q. Okay. Ron, let's move on to the next
    21 exhibit. Peoples Exhibit 41. Would you agree this
    22 is a copy of your inspection report from December
    23 14, 1994?
    24 A. Yes.
    25 Q. Did you during this inspection observe
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    1 any areas of remediated leachate seeps and/or gas
    2 holes?
    3 A. Yes, I did.
    4 Q. Do you have any photographs that show
    5 those areas of remediated leachate seeps or gas
    6 holes?
    7 A. Photographs 9, 10, 11 and 12.
    8 Q. At what portion of the landfill were
    9 those areas located?
    10 A. At the western slope.
    11 Q. Okay. Now, Ron, during the previous
    12 inspection of October 6, 1994, Exhibit 40 that we
    13 just discussed, there was some uncovered refuse or
    14 exposed refuse on the eastern side slope. And you
    15 just testified that you advised landfill employees
    16 that additional cover material was needed at that
    17 site.
    18 A. Yes.
    19 Q. Okay. Can you take a look at this
    20 inspection report, specifically paragraph four in
    21 the narrative portion of your inspection report.
    22 Can you tell me whether that area had been
    23 addressed?
    24 A. Well, an attempt was made, but it wasn't
    25 totally addressed.
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    1 Q. Did you advise the landfill that further
    2 work was needed to adequately cover that area of
    3 the landfill?
    4 A. Yes, I did.
    5 Q. So would it be your opinion that on this
    6 date there was inadequate cover material on that
    7 portion of the landfill?
    8 A. Yes.
    9 Q. Okay. Okay. Ron, we are going to move
    10 on to Peoples Exhibit 42. Would you agree this is
    11 a copy of your inspection report from February 9,
    12 1995?
    13 A. Yes, it is.
    14 Q. Okay. Now, do you -- do you recall what
    15 the purpose of this inspection was or what prompted
    16 your inspection on this date?
    17 A. Well, as was -- it was solid waste
    18 inspection but also a complaint investigation.
    19 Q. Okay. And what complaint specifically
    20 were you investigating?
    21 A. Actually, there were two complaints.
    22 Complaints pertaining to odors emanating from the
    23 landfill.
    24 Q. And do you recall who made those
    25 complaints?
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    1 A. In particular, the neighbors.
    2 Q. Does your inspection report indicate
    3 which neighbors?
    4 A. No.
    5 Q. Okay. And were those odor complaints
    6 received by the Agency?
    7 A. Yes.
    8 Q. Now, did you note any odor during your
    9 inspection?
    10 A. Yes.
    11 Q. Did you discuss the odor with anyone at
    12 the landfill?
    13 A. Yes, I did.
    14 Q. And what did you talk about?
    15 A. The area where odors could be detected.
    16 Q. Was it your understanding --
    17 A. And --
    18 Q. I'm sorry. Please finish?
    19 A. And future attempt to cover it up. And
    20 we discussed the complaint.
    21 Q. Was it your understanding that the
    22 landfill had made any attempt to address the odor
    23 problem?
    24 A. Yes.
    25 Q. And yet you still noticed an odor on that
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    1 date, correct?
    2 A. Yes.
    3 Q. Are you aware of what the landfill had
    4 done in an attempt to correct the odor problem?
    5 A. Yes.
    6 Q. What did they do?
    7 A. Covered the area with soil from the
    8 borrow pit.
    9 Q. Now, when you mention area, are we
    10 talking about a gas hole or just an area where
    11 they -- where they smelled the odor more
    12 predominantly?
    13 A. Predominant area was the western slope.
    14 It was a large area.
    15 Q. Now, Ron, in your opinion, was this an
    16 adequate remedy for the odor problem?
    17 A. Apparently not. It's -- you could still
    18 smell it.
    19 Q. You still smelled the odor that day?
    20 A. Yes.
    21 Q. Now, did you observe any other violations
    22 on that date, specifically with regard to the
    23 leachate?
    24 A. Yes, I did.
    25 Q. Now, Ron, would you refer to your
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    1 inspection report. The third paragraph, first page
    2 of your narrative --
    3 A. Yes.
    4 Q. -- where you describe the leachate seep.
    5 Would you agree that you described the leachate
    6 seep as bubbling out of the ground and a strong
    7 odor could be detected? Do you see that?
    8 A. Yes.
    9 Q. What is it -- in your opinion, what did
    10 that indicate, that the leachate was bubbling out
    11 of the ground?
    12 A. The bubbles were most likely caused by
    13 gas.
    14 Q. So there was landfill gas, in your
    15 opinion, escaping at that location?
    16 A. Through the leachate seep, yes.
    17 Q. Do you have any photographs attached to
    18 your inspection report that accurately depict that
    19 leachate seep?
    20 A. Photographs 12 -- photograph 12.
    21 Q. And aside from bubbling, can you describe
    22 how the leachate appeared on that day?
    23 A. A brownish liquid.
    24 Q. Was that the only leachate seep you
    25 observed?
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    1 A. No, it was not.
    2 Q. Okay. Why don't you tell us at what
    3 locations at the landfill you observed leachate
    4 seeps?
    5 A. The other locations were at the
    6 southwestern corner and the southeastern corner of
    7 the landfill.
    8 Q. Okay. Once again, Ron, these are areas
    9 that you have noticed leachate seeps at during
    10 previous inspections, correct?
    11 A. At the southeastern -- or western corner,
    12 yes.
    13 Q. Okay. Let's move on to Peoples Exhibit
    14 44.
    15 THE HEARING OFFICER: 42?
    16 MS. SYMONS-JACKSON: Can we go off
    17 the record for a second?
    18 THE HEARING OFFICER: (Nods head.)
    19 (Off-the-record discussion held.)
    20 MS. SYMONS-JACKSON: Okay. Back on
    21 the record?
    22 THE HEARING OFFICER: (Nods head.)
    23 BY MS. SYMONS-JACKSON:
    24 Q. I'm going to hand you a copy of Peoples
    25 Exhibit 43, Ron. Would you agree this is a copy of
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    1 your inspection report from May 18, 1995?
    2 A. Yes, it is.
    3 Q. And what time did you get to the landfill
    4 on this day?
    5 A. Approximately 4:50 a.m.
    6 Q. And did you make any observations
    7 regarding the previous day's operating area?
    8 A. Yes. On the previous day's active area,
    9 yes.
    10 Q. And what observations did you make?
    11 A. Uncovered refuse.
    12 Q. Would you agree there was inadequate
    13 daily cover at that location then?
    14 A. Yes.
    15 Q. Okay. And do you have any photographs
    16 attached to your inspection report that truly and
    17 accurately depicts that area of exposed or
    18 uncovered refuse?
    19 A. Photographs 1 through 4.
    20 Q. What size of area comprise this area of
    21 uncovered refuse?
    22 A. Approximately I would have to make an
    23 estimate, 15 by 30.
    24 Q. Feet?
    25 A. Feet, yes.
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    1 Q. All right. Ron, did you observe any
    2 other violations at the facility on this date?
    3 A. Yes, I did.
    4 Q. And can you tell me what other violations
    5 you observed?
    6 A. Violations pertaining to the observation
    7 of the leachate seeps.
    8 Q. And how many leachate seeps did you
    9 observe?
    10 A. Approximately ten.
    11 Q. Okay. And do you have photographs
    12 attached to your inspection report that accurately
    13 depict those leachate seeps?
    14 A. Yes, I do.
    15 Q. And can you tell me which photographs and
    16 at what portion of the facility those photographs
    17 were taken?
    18 A. Photographs 15 and 16 were taken at the
    19 southwestern corner of the landfill. Photograph 21
    20 was taken at the upper southwestern corner of the
    21 landfill. Photographs 22 and 23 were taken at the
    22 upper western portion of the landfill. Photographs
    23 17 and 19 were taken at the lower portion of the
    24 western landfill slope. And photographs 25, 26, 27
    25 and 28 were taken of the northern slope of the
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    1 landfill.
    2 Q. Okay. Now, did you observe or notice any
    3 problems with regard to landfill odor on this date?
    4 A. Yes, I did.
    5 Q. What did you observe?
    6 A. I observed a malodorous odor around the
    7 areas at the southwestern and western portion of
    8 the landfill.
    9 Q. Okay. Ron, I'm going to direct your
    10 attention to photographs 16 and 17 attached to your
    11 inspection report. Do those photographs show -- do
    12 those photographs show a gas hole?
    13 A. Yes.
    14 Q. In reviewing the narrative portion of
    15 your inspection report, would you agree that on
    16 this date the gas emanating from those gas holes
    17 was audible, you could hear the gas?
    18 A. Yes, you could.
    19 Q. And it was odorous?
    20 A. It was malodorous, yes.
    21 Q. And what did you observe with regard to
    22 erosion during this inspections?
    23 A. I observed exposed waste in erosional
    24 rills at the western portion of the landfill in
    25 photographs 22 and 23.
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    1 Q. Did you observe any standing water in the
    2 erosional rills?
    3 A. No.
    4 Q. Okay. Okay. Ron, did you make an
    5 observation regarding the eastern side slope of the
    6 landfill?
    7 A. Yes.
    8 Q. Was this the area that you had previously
    9 noticed inadequate cover material?
    10 A. No.
    11 Q. Was -- this is a different area?
    12 A. Yes.
    13 Q. Okay. Were there any cover problems in
    14 the eastern slope on this date?
    15 A. No.
    16 Q. Okay. All right. Ron, let's move on to
    17 Peoples Exhibit 44. Well, do you agree this is a
    18 copy of your inspection report from July 12, 1995?
    19 A. Yes, it is.
    20 Q. And did you observe or notice any
    21 violations on this date with regard to gas or odor
    22 problems?
    23 A. Yes, I did.
    24 Q. I'm going to direct your attention to
    25 photograph No. 10 attached to your inspection
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    1 report. Can you tell me what is depicted in
    2 photograph No. 10?
    3 A. A gas hole.
    4 Q. And what -- would you agree on this date
    5 the gas was again audible and odorous?
    6 A. Yes, it was.
    7 Q. Now, why don't you -- we look at
    8 photograph 14 attached to your inspection report.
    9 And can you tell me what is depicted in this
    10 photograph?
    11 A. An area of stressed vegetation, and there
    12 is a gas hole right in the center of the photo.
    13 Q. And at this location, would you agree
    14 that the gas emanating from that gas hole was again
    15 audible and odorous?
    16 A. Yes, it was.
    17 Q. Ron, do you have an opinion as to the
    18 cause of the stressed vegetation in this area
    19 around the gas hole?
    20 A. If I were to make -- I would suspect it
    21 would be the gas that would be causing the
    22 vegetation to be stressed.
    23 Q. Now, Ron, based on your experience as an
    24 environmental protection specialist, do you have an
    25 opinion as to whether landfill gas can, in fact,
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    1 cause stress to vegetation?
    2 A. Yes, it can.
    3 Q. And it's your opinion that that is what
    4 was occurring at this location during this
    5 inspection?
    6 A. At that time, yes.
    7 Q. What is it about landfill gas, what
    8 quality does it have or what does it contain that
    9 can cause this stress to vegetation?
    10 A. The main constituents of gas, I'm not
    11 very familiar with, but I do know that methane is
    12 typical of gas. And as far as it stressing the
    13 vegetation, I'm sure it would deplete the necessary
    14 nutrients for the gas (sic) to sustain life.
    15 Q. For the vegetation to sustain any life?
    16 A. Yeah. For its growth.
    17 Q. Okay.
    18 THE HEARING OFFICER: Mr. Mehalic,
    19 you need to speak up.
    20 BY MS. SYMONS-JACKSON:
    21 Q. Ron, did you observe any problems with
    22 regard to leachate during this inspection?
    23 A. Yes, I did.
    24 Q. Where were those leachate seeps located,
    25 and can you tell me what pictures they are
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    1 depicted?
    2 A. I observed -- I observed leachate at the
    3 upper portion of the southern slope of the
    4 landfill, and these seeps are depicted in
    5 photographs 17 and 18.
    6 Q. Okay. Now, Ron, I'm going to direct your
    7 attention to photograph 21. Would you take a look
    8 at that photograph, please.
    9 A. Yes.
    10 Q. And what is shown in photograph 21?
    11 A. The retention pond at the north --
    12 northern portion of the landfill property.
    13 Q. Would you agree that it's close to the
    14 northwest corner of the property?
    15 A. Yes, I would agree with that.
    16 Q. And, Ron, are you familiar, based on your
    17 knowledge, of the site as to whether this pond is
    18 sometimes referred to as the small Whitley pond?
    19 A. It's been called that.
    20 Q. Now, what is the appearance of this pond
    21 in your photograph 21?
    22 A. Heavily laden with silt.
    23 Q. And, Ron, do you have an opinion, based
    24 on your experience as an environmental production
    25 specialist and on your knowledge of the site, as to
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    1 the source of the silt in this pond?
    2 A. Principally the landfill sloped area from
    3 the northern portion.
    4 Q. And how would the silt get down into that
    5 pond?
    6 A. Via runoff from a precipitation event on
    7 the landfill.
    8 Q. Ron, are you familiar with the operating
    9 permit that was originally issued to this facility,
    10 I believe, back in the early '70s?
    11 A. I'm familiar that they were given an
    12 operating permit in 1972.
    13 Q. Ron, would you agree that the operating
    14 permit contains a provision from off-site impacts
    15 as a result of its operations?
    16 A. I really don't know.
    17 Q. Okay. Okay. Let's move on to Peoples
    18 Exhibit 45. Ron, would you agree this is a copy of
    19 your August 23, 1995 inspection report?
    20 A. Yes.
    21 Q. And did you make any observations or
    22 notice any problems with regard to odor on this
    23 day?
    24 A. Yes, I did.
    25 Q. And what did you notice about the odor?
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    1 A. That I detected a malodorous odor at the
    2 western portion of the landfill.
    3 Q. Okay. Now, looking at photograph 8
    4 that's attached to your inspection report, can you
    5 tell me what is shown in that photograph?
    6 A. A leachate seep --
    7 Q. Okay.
    8 A. -- with a red flag.
    9 Q. Do you know what purpose the red flag
    10 serves?
    11 A. That flag is put there by a landfill
    12 employee to note it and to remediate it as time
    13 allows.
    14 Q. Was this the only leachate seep you
    15 observed during this inspection?
    16 A. Yes.
    17 Q. Ron, I asked you a few minutes ago a
    18 question regarding the terms of an operating permit
    19 that had been issued to ESG Watts and whether there
    20 were terms regarding prohibition on off-sites
    21 impact and, you weren't quite sure if you
    22 remembered seeing any terms like that.
    23 Are there any permit documents that might
    24 help to refresh your recollection on that point?
    25 A. Probably.
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    1 Q. Okay. I'm going to show you a
    2 supplemental permit number 1993-167-SP that was
    3 issued on an August 27, 1993. Referring
    4 specifically to --
    5 THE HEARING OFFICER: Is it on your
    6 exhibit list?
    7 MS. SYMONS-JACKSON: It's not on my
    8 exhibit list.
    9 THE HEARING OFFICER: Okay.
    10 MR. NORTHRUP: I believe it's on
    11 mine, if you want. Go ahead.
    12 THE HEARING OFFICER: I just was
    13 looking for it. Please continue. I'm sorry.
    14 MS. SYMONS-JACKSON: I think we have
    15 agreed and stipulated to the introduction of
    16 permitting materials.
    17 MR. NORTHRUP: Yeah.
    18 MS. SYMONS-JACKSON: So I would go
    19 ahead and move that this be introduced into
    20 evidence as Peoples Exhibit 65.
    21 THE HEARING OFFICER: Let's go off
    22 the record for a second.
    23 (Off-the-record discussion held.)
    24 THE HEARING OFFICER: Okay. We can
    25 go back on the record. Thank you.
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    1 BY MS. SYMONS-JACKSON:
    2 Q. Okay. Ron, I'm going to hand you what we
    3 have now marked as Peoples Exhibit 65, and I'll
    4 direct your attention to page three, paragraph 18
    5 of that exhibit. And would you please review that
    6 paragraph 18 and tell me if that refreshes your
    7 recollection with regard to a prohibition on
    8 off-site impacts from the landfill?
    9 A. It refreshes my memory.
    10 Q. Okay. And can you tell me now whether
    11 there is, in fact, a prohibition against off-site
    12 impacts as a result of operations of the landfill?
    13 A. Yes, there is, according to this
    14 condition.
    15 Q. Okay. And, Ron, would you agree the
    16 siltation in this retention pond or the small
    17 Whitley pond is that you described in a previous
    18 inspection report, I believe Exhibit 44, does that
    19 siltation, in your opinion, constitute an off-site
    20 impact?
    21 A. If the siltation were occurring on
    22 Mr. Whitley's property, yes.
    23 THE HEARING OFFICER: For the
    24 record, Exhibit 65 is admitted into evidence.
    25 MS. SYMONS-JACKSON: Thank you.
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    1 BY MS. SYMONS-JACKSON:
    2 Q. Okay. I think we have finished talking
    3 about -- about Exhibit 45. So let's move on to
    4 Peoples Exhibit 46.
    5 Ron, does this appear to be a copy of
    6 your October 26, 1995 inspection report?
    7 A. Yes, it is.
    8 Q. And did you observe any uncovered refuse
    9 during this inspection? If it will help, I'll
    10 direct your attention to paragraph 3 in the
    11 narrative portion of your inspection report.
    12 A. Photograph 3.
    13 Q. No. Paragraph 3.
    14 A. Paragraph?
    15 Q. Uh-huh.
    16 A. Yes.
    17 Q. Was the landfill using woodchips on this
    18 day?
    19 A. Yes, they were.
    20 Q. Okay. What were they using the woodchips
    21 for?
    22 A. They were utilizing the woodchips as a
    23 road base during inclement weather.
    24 Q. Ron, is it your -- does the landfill or
    25 did the landfill at that time have a permit
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    1 allowing them to use woodchips in the manner that
    2 they were using them that day?
    3 A. No, they did not.
    4 Q. And in your opinion, Ron, did those
    5 woodchips constitute a refuse material?
    6 A. Yes.
    7 Q. And were these woodchips covered in any
    8 way on the date of this inspection?
    9 A. No, they were not.
    10 Q. So this would constitute an area of
    11 uncovered refuse?
    12 A. Yes.
    13 Q. Okay. What observations did you make
    14 with regard to landfill odors or gas during this
    15 inspection?
    16 A. I notice the -- a malodorous odor at the
    17 western side slope of the landfill.
    18 Q. Can you describe the odor that you
    19 noticed on that day? How did it smell?
    20 A. Well, kind of analogous to four-week-old
    21 garbage sitting in the sun for weeks.
    22 Q. Now, on the dates you've noticed odor at
    23 the landfill prior to this and after this, is that
    24 the same smell that you have noticed?
    25 A. Yes.
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    1 Q. Okay. And are you aware of whether the
    2 landfill had done anything or was doing anything to
    3 address the odor problems on that day?
    4 A. Yes.
    5 Q. What were they doing?
    6 A. Five borings were completed. They were
    7 testing the gas in the landfill.
    8 Q. And have you ever received the results
    9 from those borings?
    10 A. I believe those results are contained in
    11 the permit application for the gas recovery system.
    12 Q. Okay. Okay. Let's move on to the next
    13 exhibit. Peoples Exhibit 47.
    14 Does this appear to be a copy of your
    15 inspection report from January 23, 1996?
    16 A. Yes, it is.
    17 Q. And did you notice odor problems again on
    18 this date?
    19 A. Yes.
    20 Q. And, Ron, did you notice any problems
    21 with regard to erosion during this inspection?
    22 A. Yes, I did.
    23 Q. And can you describe for me where those
    24 erosion problems were? And if you have any
    25 photographs, please identify those photographs for
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    1 us.
    2 A. Photographs 13 and 14 were taken of the
    3 upper portion of the southern slope of the
    4 landfill.
    5 Q. Okay. Ron, let's look at Peoples
    6 Exhibit 48, please. Do you agree this is a copy
    7 of your inspection report from January 23 -- or I'm
    8 sorry -- from February 14, 1996?
    9 A. Yes.
    10 Q. And did you make any observations with
    11 regard to uncovered refuse on this date?
    12 A. Yes, I did.
    13 Q. And where was the uncovered refuse
    14 located?
    15 A. Located north of, and I should say, south
    16 of the previous day's working area or active area.
    17 Q. In your opinion?
    18 A. In the center of the landfill.
    19 Q. In your opinion, Ron, was this an area
    20 that should have been covered with a daily cover
    21 material at the end of the previous operating day?
    22 A. Yes.
    23 Q. And are the photographs attached to your
    24 inspection report that depict this area of
    25 uncovered refuse? And if so please, identify those
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    1 photographs for us.
    2 A. Photograph 7, 8, 9, 10, 11, 12, 13, 14,
    3 17, 18, 20, 21, 22, 23, 24, 25, 26, and 27.
    4 Q. Would you agree that it was a fairly
    5 large area on that date of uncovered refuse?
    6 A. Yes.
    7 Q. Okay. Now, Ron, tell us what are the
    8 potential environmental impacts that can result
    9 from allowing refuse to remain uncovered?
    10 A. Well, if you were to leave the refuse
    11 uncovered for an extended period of time and if it
    12 were to rain, therefore you would create leachate
    13 and vectors. There is a chance for vectors, such
    14 as rats, I imagine. Odors from decomposing refuse.
    15 Q. What other violations did you observe on
    16 this date?
    17 A. I observed litter.
    18 Q. Where did you observe the litter?
    19 A. Scattered throughout the landfill area
    20 actually.
    21 Q. Throughout the entire landfill?
    22 A. Not throughout the -- near the previous
    23 day's active area.
    24 Q. So scattered throughout the active area
    25 of the landfill?
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    1 A. Yes.
    2 Q. Okay.
    3 A. And I observed refuse in standing water.
    4 Q. Where was the standing water located?
    5 A. Standing water, north of the nonwaste
    6 disposal area.
    7 Q. And what quantity of refuse did you
    8 observe in that standing water?
    9 A. Excuse me?
    10 Q. Can you refer to any photographs attached
    11 to your inspection report and describe for us the
    12 amount of refuse you observed in the standing
    13 water?
    14 A. Photographs 15, 16 and 19.
    15 Q. Ron, looking at those photos, can you
    16 tell us how much refuse you observed in the
    17 standing water, if you can tell from the
    18 photographs?
    19 A. If I were to hazard a guess, I would say.
    20 Q. Ron, I don't want you to get. Do you
    21 have a picture that shows the refuse in the
    22 standing water?
    23 A. Yes, I do. Photographs 15 and 16.
    24 Q. Would you characterize it as a large
    25 quantity of refuse in standing water, a small
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    1 quantity?
    2 A. A small quantity.
    3 Q. What potential environmental impacts can
    4 result from allowing refuse to accumulate in
    5 standing water?
    6 A. Water pollution.
    7 Q. In your opinion, can that cause any
    8 problems with groundwater?
    9 A. If it's not rectified in the necessary
    10 time fashion, I would say yes.
    11 Q. And what about odor, can refuse in
    12 standing water contribute to odor problems at the
    13 landfill?
    14 A. Yes.
    15 Q. Okay. Ron, let's move on to Peoples
    16 Exhibit 49. Does this appear to be a copy of your
    17 May 23, 1996 inspection report?
    18 A. Yes.
    19 Q. What violations did you observe during
    20 that inspection?
    21 A. Operational?
    22 Q. Did you observe any violations with
    23 regard to odor or gas?
    24 A. Yes, I did. As well as refuse in
    25 standing or flowing waters.
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    1 Q. Was the refuse in the standing water in
    2 the same area as noted during the previous
    3 inspection, or was this a different new area?
    4 A. A different area.
    5 Q. And where was this located?
    6 A. At the northern portion of the area.
    7 Q. Okay. Can I direct your attention to
    8 November No. 11 attached to your inspection report?
    9 A. Yes.
    10 Q. And can you tell me, is photograph 11 a
    11 photograph of the refuse in the standing water?
    12 A. Yes. That also depicts refuse in flowing
    13 water.
    14 Q. Okay.
    15 A. And located at the western portion of the
    16 landfill.
    17 Q. So there were two areas at the landfill
    18 on this date where you observed exposed refuse in
    19 standing water?
    20 A. Yes.
    21 Q. Now, with regard to the odor that you
    22 said you noted, I'm going to direct your attention
    23 to photographs 5, 16 and 10. And can you tell me
    24 what is shown in those photographs?
    25 A. Photograph 5 shows an area of stressed
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    1 vegetation. Photographs 9 and 10.
    2 Q. 16 and 10?
    3 A. 16 and 10. Photograph 16 shows another
    4 area of stressed vegetation, and photograph 10
    5 shows a gas hole.
    6 Q. Can you tell me how would you describe
    7 the appearance of the gas hole shown in photograph
    8 10?
    9 A. It was under artesian pressure. There
    10 was water bubbling out of it.
    11 Q. And was there a noticeable odor at the
    12 location of the gas hole?
    13 A. Yes, there was.
    14 Q. I want to direct your attention to
    15 photograph 17. Can you tell me what is shown in
    16 photograph 17?
    17 A. A couple of tires.
    18 Q. At what portion of the landfill?
    19 A. At the northern portion of the landfill.
    20 Q. And were these tires partially covered by
    21 any soil or other cover material?
    22 A. Partially, yes.
    23 Q. So in other words, they were protruding
    24 from the cover?
    25 A. Yes.
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    1 Q. Would it be your opinion then that there
    2 was inadequate cover at that northern portion of
    3 the landfill area?
    4 A. According to the rules and regs, yes.
    5 Q. Okay. Ron, let's go on to Peoples
    6 Exhibit No. 50. Does this appear to be a copy of
    7 your inspection report from July 18, 1996?
    8 A. Yes.
    9 Q. Did you observe any violations with
    10 regard to leachate on this date?
    11 A. Yes, I did.
    12 Q. And can you tell us with reference to
    13 photographs you took where the leachate was
    14 observed at what portion of the landfill?
    15 A. The leachate was observed at the
    16 southwestern corner of the landfill and is depicted
    17 in photographs 9 and 7.
    18 Q. And did you note anything during your
    19 inspection on this day regarding landfill gas or
    20 odors?
    21 A. Yes.
    22 Q. Can you tell me what you noted and
    23 reference any photograph that might --
    24 A. Photograph 5 shows an area of stressed
    25 vegetation that an odor was detected.
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    1 Q. In what portion of the landfill was that
    2 photograph taken?
    3 A. At the southeastern corner.
    4 Q. Okay. Now, Ron, on July 18, 1996, did
    5 you conduct any off-site inspections of, for
    6 example, neighboring property?
    7 A. Yes.
    8 Q. And did you observe any violations off
    9 site?
    10 A. Yes, I did.
    11 Q. Can you describe what you observed?
    12 A. I observed litter in a ravine north of
    13 the facility on the neighbor's property.
    14 Q. And is that the neighbor Wayne Siebke?
    15 A. Yes, it is.
    16 Q. Now, prior to this date, had you been
    17 aware of any complaints or problems Mr. Siebke had
    18 with regard to litter coming onto his property?
    19 A. Could you repeat that?
    20 Q. Sure. Did you know about the litter
    21 accumulating on Mr. Siebke's property prior to this
    22 date?
    23 A. I was informed by Mr. Siebke prior to
    24 this date.
    25 Q. At what point were you informed?
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    1 A. A week prior perhaps.
    2 Q. Okay. So just a short time?
    3 A. Short time.
    4 Q. Prior to this inspection?
    5 A. Uh-huh, yes.
    6 Q. And are there photographs attached to
    7 your inspection report at that show the litter in
    8 the ditch on Mr. Siebke's property?
    9 A. Photographs 23 and 24.
    10 Q. And what amount of litter or refuse did
    11 you observe on Mr. Siebke's property that day?
    12 A. On this day, a small amount.
    13 Q. And, Ron, do you have an opinion as to
    14 the source of the refuse on Mr. Siebke's property
    15 on July 18, 1996?
    16 A. Most likely from the landfill.
    17 Q. Okay. Now, let's look at Peoples Exhibit
    18 51. And is this a copy of your inspection report
    19 from September 12, 1996?
    20 A. Yes, it is.
    21 Q. Now, Ron, would you agree that the
    22 landfill has been issued a permit for the
    23 installation of a methane gas recovery system?
    24 A. Yes, they have.
    25 Q. And did you observe any work related to
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    1 that system while you were at the site in
    2 September?
    3 A. Yes, I did.
    4 Q. What did you observe?
    5 A. I observed numerous gas extraction wells
    6 in the landfill itself and also observed an area
    7 where consultants failed to properly dispose of
    8 waste extracted from one of their borings.
    9 Q. And, Ron, would you agree that as these
    10 wells are being installed, borings are being made
    11 down into the previously covered areas of refuse?
    12 A. Yes.
    13 Q. And is refuse actually removed then from
    14 those boring areas?
    15 A. Yes.
    16 Q. Okay. And are there requirements
    17 regarding properly disposing of and covering the
    18 refuse that is removed during the installation of
    19 these wells that you are aware of?
    20 A. According to their permit, they are
    21 required to dispose of any waste extracted from
    22 these borings and dispose of it in the active
    23 working area on that day.
    24 Q. On the same --
    25 A. At the end on the same day.
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    1 Q. And when you were on July 18, do you know
    2 how long the refuse had remained uncovered?
    3 A. A day.
    4 Q. Did you observe any problems with regard
    5 to odors on that day that you recall?
    6 A. Yes.
    7 Q. And is this the same typical odor that
    8 you've noticed on other occasions while at the
    9 landfill?
    10 A. Yes.
    11 Q. Since September 12, 1996 have you been
    12 back to the Taylor Ridge landfill?
    13 A. No.
    14 Q. Okay. That was your last inspection?
    15 A. Yes.
    16 Q. Now, Ron, during the September
    17 inspection, did you have an opportunity to return
    18 to this ravine or ditch on the northeast corner of
    19 the property leading onto Mr. Siebke's property?
    20 A. Yes, I did.
    21 Q. Ron, did you observe that the landfill
    22 had done anything, constructed any retention
    23 barrier at that point of the landfill to restrict
    24 the movement of refuse or other materials from the
    25 landfill to this drainage ditch on Mr. Siebke's
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    1 property?
    2 A. I observed that they put a clay side
    3 slope liner to try to restrict any off-site
    4 movement of litter, if it would go through the
    5 ravine.
    6 Q. And do you have an opinion as to the
    7 adequacy of that -- that action?
    8 A. Time will tell.
    9 Q. Ron, would you have an opinion, based on
    10 what you've observed at the facility, that -- as to
    11 whether something above grade such as a berm or
    12 other structure would be more effective in
    13 controlling runoff or runoff containing refuse from
    14 the landfill into this drainage ditch?
    15 A. That would be effective, yes.
    16 Q. Is it your opinion that that would be
    17 potentially more effective than something such
    18 as the clay liner that you mentioned; that is,
    19 actually something above grade would be more
    20 effective?
    21 A. Something above grade to deter the litter
    22 if litter were to run down the ravine that would be
    23 effective.
    24 Q. Okay. And the landfill had not
    25 constructed any berm or above-grade structure?
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    1 A. Not during that inspection, no.
    2 Q. Okay. Ron, I want to ask you a couple of
    3 questions about some inspection records that have
    4 been prepared by the Watts facility. Okay. Are
    5 you aware of whether any employee of the Watts
    6 landfill prepares any site inspection reports?
    7 A. Yes.
    8 Q. And do you know is that one employee that
    9 prepares the reports?
    10 A. Principally, yes.
    11 Q. Who is that?
    12 A. Mr. Joe Chenoweth.
    13 Q. Do you recall when the facility began
    14 prepares the site inspection reports?
    15 A. Couple of years back when Subtitle D
    16 came, I believe.
    17 THE HEARING OFFICER: For the
    18 record, I'm not sure that we admitted Exhibit 52
    19 yesterday. Is that what you are going to be
    20 referring to?
    21 MS. SYMONS-JACKSON: Yes.
    22 MR. DAVIS: You have it, don't you?
    23 You have it with your stuff?
    24 THE HEARING OFFICER: No. Off the
    25 record.
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    1 (Off-the-record discussion held.)
    2 THE HEARING OFFICER: Let's go back
    3 on the record then.
    4 BY MS. SYMONS-JACKSON:
    5 Q. Okay. Ron, I'm going to hand you a copy
    6 of Peoples Exhibit 52, and this a Group Exhibit,
    7 and I'm going to represent to you and to the Board
    8 that this contains all of the site inspection
    9 reports prepared by the Watts personnel that were
    10 provided to the attorney general's office by
    11 Mr. Northrup.
    12 THE HEARING OFFICER: Okay. And
    13 those are stipulated to?
    14 MS. SYMONS-JACKSON: Well, it was my
    15 understanding that originally we did stipulate to
    16 the introduction of these documents.
    17 THE HEARING OFFICER: Is there any
    18 objection to them now?
    19 MR. NORTHRUP: No.
    20 THE HEARING OFFICER: Then Exhibit
    21 52 is admitted into evidence.
    22 BY MS. SYMONS-JACKSON:
    23 Q. Now, Ron, during the course of your
    24 inspections at this facility, you've had an
    25 opportunity to review some of these inspection
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    1 reports, isn't that correct?
    2 A. Yes.
    3 Q. And what types of things does the
    4 facility include in their inspection reports?
    5 A. Areas of odors, exposed refuse, leachate.
    6 Q. And, Ron, do you have an opinion with
    7 regard to the frequency or the continuing nature of
    8 the leachate problems as noted in these inspection
    9 reports?
    10 A. That there is a troubled area where
    11 leachate is a continuing nuisance, yes.
    12 Q. Leachate is continuously reported as an
    13 area of concern in these site inspection reports?
    14 A. Not all of them, but --
    15 Q. Not all of them, but regularly?
    16 A. Yeah. Yes.
    17 Q. Do you have an opinion as to whether --
    18 are odor problems ever noted in these site
    19 inspection reports?
    20 A. Yes.
    21 Q. Do you have an opinion as to whether odor
    22 problems are regularly cited by the landfill as an
    23 area of concern in their site inspection reports?
    24 MR. NORTHRUP: I'll object. Just
    25 regularly is kind of vague.
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    1 THE HEARING OFFICER: Can you be
    2 more specific, please.
    3 MS. SYMONS-JACKSON: I can rephrase
    4 the question, sure.
    5 THE HEARING OFFICER: And,
    6 Mr. Northrup, you need to speak up. It's hard to
    7 hear you.
    8 MR. NORTHRUP: Sorry.
    9 BY MS. SYMONS-JACKSON:
    10 Q. Ron, reviewing these site inspection
    11 reports prepared by Watts employees, have you ever
    12 observed or noted where they have indicated
    13 problems with odors?
    14 A. Yes.
    15 Q. And how would you characterized the
    16 frequency of those odor problems as contained in
    17 site inspection reports?
    18 A. Could you rephrase that?
    19 Q. I'm trying to get at how would you
    20 consider the odor problems to be frequent,
    21 infrequent, regular, continuing? How would you
    22 characterize the odor problems?
    23 A. Frequent to infrequent. Frequent.
    24 Q. You would characterize them as frequent?
    25 A. Yes.
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    1 Q. Now, in these inspection reports do the
    2 Watts employees or employee preparing the report,
    3 do they indicate what remedial measures are taken
    4 to correct the -- the problems they find?
    5 A. Yes.
    6 Q. And have you reviewed -- are you familiar
    7 with the remedial measures they take to correct,
    8 for example, leachate odor and erosional problems
    9 at the landfill?
    10 A. Yes.
    11 Q. Ron, do you have an opinion as to whether
    12 those remedial measures have been effective at the
    13 landfill in correcting the leachate odor and
    14 erosional problems?
    15 A. In the short-term, yes. It's effective.
    16 But evidently, it's not correcting the problem in
    17 the long-term. The long-term needs to be
    18 addressed.
    19 Q. Would you agree, though, Ron, that even
    20 though measures might be taken, the problems
    21 continue to reoccur and reappear?
    22 A. Yes.
    23 Q. And, Ron, do you have an opinion as to
    24 what long-term remedies the landfill needs to
    25 implement to address the leachate and erosional
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    1 problems at the facility?
    2 A. As far as the -- remediating the
    3 continuing leachate problems, I would suggest
    4 leachate extraction.
    5 Q. Have they undertaken any leachate
    6 extraction measures at the facility that you are
    7 aware of?
    8 A. Not to my knowledge.
    9 Q. And what about erosion, what can they be
    10 doing to correct the erosional problems?
    11 A. Restructure the side slopes to
    12 accommodate runoff and to deter any surface water
    13 runoff to adjoining retention ponds.
    14 Q. And, Ron, has the landfill done any of
    15 this?
    16 A. Not to my knowledge.
    17 MS. SYMONS-JACKSON: Those are all
    18 the direct examination questions I have.
    19 THE HEARING OFFICER: Okay. Then
    20 let's go off the record until 11 o'clock and allow
    21 our court reporter to change paper.
    22 (Recess taken.)
    23 THE HEARING OFFICER: Okay. I'd
    24 like to go back on the record. Is Amy here?
    25 MS. SYMONS-JACKSON: I'm here.
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    1 THE HEARING OFFICER: Okay.
    2 Mr. Northrup, we'll begin with your
    3 cross-examination.
    4 MR. NORTHRUP: Okay.
    5 THE HEARING OFFICER: Let me get the
    6 rest of those inspection reports out too.
    7 CROSS-EXAMINATION
    8 BY MR. NORTHRUP:
    9 Q. I believe you testified that -- well,
    10 your inspection reports indicate that you often
    11 show up at the landfill to do your inspections
    12 prior to operating hours.
    13 A. Yes.
    14 Q. Is that correct? Okay. Is that
    15 something routine that you do with all landfills?
    16 A. Yes.
    17 Q. Have there been times when you have gone
    18 onto the landfill property without any
    19 representative of Watts?
    20 A. Yes.
    21 Q. And would those times be before operating
    22 hours?
    23 A. Prior to 5:00 a.m., yes.
    24 Q. Okay. On any of those occasions, have
    25 you ever obtained a search warrant?
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    1 A. No.
    2 Q. Have you ever observed or noticed odors
    3 off site of the landfill?
    4 A. Yes.
    5 Q. Okay. When was that?
    6 A. Particular time frame, I can't recall.
    7 Q. Within the last year?
    8 A. I can't recall.
    9 Q. Where were you when you noticed these
    10 odors?
    11 A. On the landfill.
    12 Q. Okay. That was my question.
    13 A. Yeah.
    14 Q. So you've never been off the landfill
    15 property and smelled odors?
    16 A. No.
    17 Q. You talked about some -- some long-term
    18 fixes for some of the problems at the landfill,
    19 particularly with respect to leachate erosion
    20 and erosional problems. Are you aware -- for
    21 leachate -- you mention leachate extraction. Are
    22 you aware of any plans or permits -- well, strike
    23 that.
    24 Are you aware of any plans by Watts to
    25 perform leachate extraction?
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    1 A. I believe it was proposed in that gas
    2 recovery permit application.
    3 Q. Now, are there long-term fixes for odor
    4 problems?
    5 A. Potentially.
    6 Q. Okay. And what would those be?
    7 A. Gas recovery.
    8 Q. And you are aware that Watts has a permit
    9 for gas recovery?
    10 A. Yes.
    11 Q. Do you have any opinion on how that gas
    12 recovery system will impact odors at the site?
    13 A. Only time will tell if it's effective.
    14 Q. You testified earlier that pressure in
    15 the landfill causes leachate seeps?
    16 A. It's a contributing factor, yes.
    17 Q. Will the gas system have any effect on
    18 the pressure in the landfill?
    19 A. Could you say that again?
    20 Q. Yeah. Will the operation of the gas
    21 recovery system have any impact on the pressure
    22 within the landfill?
    23 A. I believe so.
    24 Q. And what would that effect be?
    25 A. It would most likely decrease the
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    1 pressure.
    2 Q. Now, in your inspection reports you cite
    3 a number of leachate seeps. Have you ever sampled
    4 any of that leachate?
    5 A. No, I have not.
    6 Q. Have you ever observed any leachate
    7 leaving the site?
    8 A. No, I have not.
    9 Q. Is it a violation to repair a leachate
    10 seep?
    11 A. No.
    12 Q. It's a good thing to repair a leachate
    13 seep?
    14 A. Yeah.
    15 Q. You testified earlier that it was your
    16 opinion that the landfill did not have adequate
    17 measures to control leachate in the long-term. Is
    18 it your opinion that the landfill has adequate
    19 measures to monitor leachate?
    20 A. In the short-term?
    21 Q. Sure. In the short-term.
    22 A. Yes. Progress -- yes.
    23 Q. Now, you have responded to complaints
    24 made by Mr. Whitley related to the landfill; is
    25 that correct?
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    1 A. Yes.
    2 Q. On how many occasions?
    3 A. That I don't know.
    4 Q. An approximation?
    5 A. Approximation. During when I inherited
    6 the site, I would say 15 approximate.
    7 Q. And how did you respond to those
    8 approximately 15 complaints?
    9 A. Go out and investigate the site during
    10 one of my solid waste inspections.
    11 Q. Do you recall what any of those
    12 complaints were?
    13 A. Mostly leachate and odors.
    14 Q. Were you able to confirm any of those
    15 complaints?
    16 A. Yes.
    17 Q. How many?
    18 A. That I don't know. Probably -- I would
    19 go out and investigate each complaint, and then I
    20 would address the situation with a landfill
    21 employee, and then we would discuss it. But as far
    22 as the number, I would say out of the 15, maybe 13.
    23 Q. Now, the 13 times that you confirm these
    24 complaints, would these result in any -- any
    25 documentation other than your inspection reports?
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    1 A. No.
    2 Q. Do you know for those 13 instances the
    3 landfill was formally cited for any violations?
    4 A. Based on those complaints?
    5 Q. Based on the -- formally cited, I mean,
    6 in a document, such as your inspection report where
    7 you -- where you check off a violation?
    8 A. It would be in the inspection report.
    9 Q. Let me hand you -- or direct your
    10 attention to Peoples Exhibit 28, which is the April
    11 14th, '93 inspection report. Here. You can look
    12 at mine. I believe with respect to the issue of
    13 any exposed garbage, you indicated that the
    14 landfill had inadvertently exposed refuse. Okay.
    15 Is that correct?
    16 A. That's correct.
    17 Q. Okay. And if you'll look at the fifth
    18 paragraph. It talks about a conversation you had
    19 with Mr. Jones, and you talked about -- and there
    20 was a discussion of unstable slope. --
    21 A. Uh-huh.
    22 Q. -- and weather conditions. Do you
    23 disagree with anything that's on that -- in that
    24 paragraph? Was there an unstable slope?
    25 A. Yes.
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    1 Q. In your opinion, could cover have been
    2 put on that garbage at that time?
    3 A. No. What kind of cover?
    4 Q. Dirt.
    5 A. No.
    6 Q. Do you need a permit to extract leachate
    7 from a landfill?
    8 A. I believe so, yes.
    9 Q. I think some of your inspection reports
    10 also discussed the -- the ravine or creek on the
    11 Siebke property. And you testified that -- and
    12 this may be in your September 12th inspection, I
    13 don't recall, that Watts had installed or
    14 constructed some kind of clay barrier across the
    15 landfill above the ravine. Is that correct?
    16 MS. SYMONS-JACKSON: I'm going to
    17 object. I think that mischaracterizes his earlier
    18 testimony.
    19 BY MR. NORTHRUP:
    20 Q. Do you recall your testimony in that
    21 regard?
    22 A. When you mentioned clay barrier, the clay
    23 barrier that I observed was not on the landfill
    24 slope itself. It was downstream. It was down in
    25 the area where the waste was observed on
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    1 Mr. Siebke's property.
    2 Q. Okay. Okay. Other than that measure,
    3 have you observed anything that Watts has done to
    4 prevent runoff down that ravine?
    5 A. There is in that area -- I believe it's
    6 clay that is on that side slope. But as far as
    7 directing runoff from that area, I'm not certain if
    8 it does.
    9 Q. I believe, too, you testified that it's
    10 your understanding that that ravine is the 001
    11 outfall in the N.P.D.E.S. permit.
    12 A. Yes.
    13 Q. With respect to Peoples Exhibit 40, I
    14 believe you testified that there was inadequate
    15 amount of cover.
    16 MS. SYMONS-JACKSON: Which exhibit?
    17 I'm sorry.
    18 THE HEARING OFFICER: 40.
    19 MR. NORTHRUP: 40.
    20 BY MR. NORTHRUP:
    21 Q. Do you recall that?
    22 A. Yes.
    23 Q. Okay. Why wasn't that cited as a
    24 violation?
    25 A. Well, there really wasn't a lot of trash
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    1 poking out, and I gave the benefit of the doubt to
    2 rectify it.
    3 Q. Okay. Exhibit 41, again, there was a
    4 discussion about inadequate cover. Do you recall
    5 that?
    6 A. Yes.
    7 Q. Okay. Again, that -- no violations were
    8 checked on that inspection report. Why was that?
    9 A. Again, I gave Mr. Chenoweth the benefit
    10 of the doubt.
    11 Q. Have you performed any depth cover tests
    12 during any of your inspections?
    13 A. No.
    14 Q. Let's look at Exhibit 42. On the
    15 narrative portion, the third paragraph. About in
    16 the middle of the third paragraph where it talks
    17 about you observed a leachate seep. And according
    18 to your inspection you've got in here, it indicates
    19 that Mr. Chenoweth stated that the frozen ground
    20 makes it rough for travel as well as producing an
    21 adequate seal over the seep.
    22 Would you agree with that?
    23 MS. SYMONS-JACKSON: I'm going to
    24 object. Agree with what?
    25 MR. NORTHRUP: Two-part question.
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    1 BY MR. NORTHRUP:
    2 Q. Do you agree that during this inspection
    3 at that time the frozen ground made it rough for
    4 traveling?
    5 A. The frozen ground would make it rough for
    6 traveling. But as far as producing an adequate
    7 seal, I would suggest that if one were to scrape
    8 over the frozen ground and then apply the seal, the
    9 clay seal would be more effective.
    10 Q. Did you suggest that to Mr. Chenoweth at
    11 that time?
    12 A. No.
    13 Q. I suppose there are other causes of
    14 vegetative stress than landfill gas. There can be
    15 other causes.
    16 MS. SYMONS-JACKSON: Is that a
    17 question, Charlie?
    18 MR. NORTHRUP: Oh, yeah. That's a
    19 question. I'm sorry.
    20 BY MR. NORTHRUP:
    21 A. Not to my knowledge.
    22 Q. There can be no other cause for
    23 vegetative stress than landfill gas?
    24 A. Well, when you observe a gas hole and you
    25 see vegetative -- or the vegetation being stressed,
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    1 you naturally would presume that the stressed
    2 vegetation is being caused by the gas.
    3 Q. Okay. That's a presumption on your part;
    4 is that correct?
    5 THE HEARING OFFICER: Will you
    6 answer the question, please.
    7 BY MR. NORTHRUP:
    8 A. Yes.
    9 Q. Are you aware of other landfills using
    10 woodchips on their roads?
    11 A. Yes.
    12 Q. Do those landfills have permits for that?
    13 A. Yes.
    14 Q. In your opinion, is that a difficult
    15 permit to obtain?
    16 A. No.
    17 Q. What's the purpose for putting woodchips
    18 on a road?
    19 A. I've been told their purpose serves as an
    20 absorbent in inclement weather.
    21 Q. You've been told. Have you observed
    22 that?
    23 A. Yes.
    24 Q. Yeah. Are you aware where these
    25 woodchips come from?
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    1 MS. SYMONS-JACKSON: I'm going to
    2 object, Charlie. I just want to make it clear for
    3 the record. What woodchips you are talking about?
    4 What inspection report?
    5 MR. NORTHRUP: It's inspection
    6 report 46, and they are the woodchips that are
    7 placed on the landfill roadways.
    8 BY MR. NORTHRUP:
    9 Q. You understand what I'm referring to?
    10 A. Yes. Could you repeat the question?
    11 Q. Yeah. Do you know where Watts got the
    12 woodchips?
    13 A. I believe they obtained them from
    14 someplace in East Moline. Jacobs Energy.
    15 Q. Do you know if they paid for them?
    16 A. That I don't know.
    17 THE HEARING OFFICER: Mr. Mehalic,
    18 you need to speak up and try and face our court
    19 reporter. I know Mr. Northrup is talking to you,
    20 but it's hard to hear you.
    21 THE WITNESS: Okay.
    22 BY MR. NORTHRUP:
    23 Q. Have you ever observed any silt fences on
    24 the landfill property?
    25 A. Yes, I have.
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    1 Q. Okay. How often would you have observed
    2 those?
    3 A. Nearly every inspection.
    4 Q. Can you tell me where you've seen those?
    5 A. At the northern portion of the property,
    6 the landfill property.
    7 Q. Okay. With a little more specificity.
    8 A. The northern slope area adjoining the
    9 road right adjacent to Mr. Whitley's property, and
    10 I have also seen them on the southern slope.
    11 Q. Have you ever seen them by the Siebke
    12 property?
    13 A. No.
    14 Q. Now, since this complaint was filed, you
    15 have inspected the landfill on numerous occasions,
    16 correct?
    17 A. Correct.
    18 Q. At any time since this complaint has been
    19 filed have you ever felt that you were under any
    20 pressure to cite problems that in your estimation
    21 may not be violations of the Act or regulations?
    22 A. No. I just perform my duties.
    23 MR. NORTHRUP: I don't have any
    24 further questions.
    25 THE HEARING OFFICER: Redirect.
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    1 MS. SYMONS-JACKSON: Yes. Just a
    2 few questions on redirect.
    3 REDIRECT EXAMINATION
    4 BY MS. SYMONS-JACKSON:
    5 Q. Ron, going back to some of the early
    6 questions Charlie asked you regarding odors that
    7 you may or may not have observed or noticed off
    8 site.
    9 Have you ever conducted an inspection of
    10 the facility an purposefully gone off site of the
    11 landfill to see if there are odors present?
    12 A. No.
    13 Q. Now, regarding this gas recovery system
    14 that's -- that you testified to as being installed
    15 currently at the landfill. In your opinion, is
    16 this an acceptable solution to the gas problem at
    17 the landfill?
    18 A. Yes. Only time will tell its
    19 effectiveness.
    20 Q. Now, Ron, is it your opinion that this is
    21 something that should have been addressed three
    22 years ago in a sig-mod application by the landfill?
    23 A. Yes.
    24 Q. Now, regarding the April 13, 1993
    25 inspection.
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    1 MR. NORTHRUP: What's the number on
    2 that?
    3 MS. SYMONS-JACKSON: It would be
    4 exhibit -- Peoples Exhibit 28. It's April 14th. I
    5 think I said April 13.
    6 BY MS. SYMONS-JACKSON:
    7 Q. Regarding the uncovered refuse that we
    8 were talking about, you had stated that it was
    9 inadvertently uncovered.
    10 A. Yes.
    11 Q. And you indicated, in your opinion, that
    12 slope was unstable on that day.
    13 A. Yes.
    14 Q. Would you agree that the proper operation
    15 of a landfill would require ensuring that all
    16 slopes are stable?
    17 A. Yes.
    18 Q. And on this date, the Watts landfill had
    19 not ensured that this slope was, in fact, stable;
    20 is that correct?
    21 A. Could you repeat that?
    22 Q. Sure. The slope wasn't stable on this
    23 day, was it?
    24 A. No. It wasn't.
    25 Q. And it's the landfill's obligation to
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    1 ensure that such a slope is stable?
    2 A. Yes.
    3 Q. Okay. Now, regarding a leachate
    4 collection plan. You indicated that you may have
    5 recalled that some plan had been proposed in an
    6 application for gas management system. Is that
    7 accurate?
    8 A. I believe it was touched on in there, in
    9 the gas plan as far as putting -- proposing to put
    10 leachate extraction wells and gas wells in the same
    11 boring.
    12 Q. Okay. Now, Ron, are you aware of whether
    13 there has been issued a permit to the landfill for
    14 a leachate extraction system?
    15 A. Not to my knowledge.
    16 MS. SYMONS-JACKSON: Okay. That's
    17 the redirect I have.
    18 THE HEARING OFFICER: Anything
    19 further, Mr. Northrup?
    20 MR. NORTHRUP: No.
    21 THE HEARING OFFICER: Let's go off
    22 the record for a moment.
    23 (Off-the-record discussion held.)
    24 (Recess taken.)
    25 THE HEARING OFFICER: Let's go back
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    1 on the record, and please swear the witness.
    2 KENN LISS,
    3 called as a witness, after having been first duly
    4 sworn, was examined and testified as follows:
    5 DIRECT EXAMINATION
    6 BY MS. SYMONS-JACKSON:
    7 Q. Please state your name for the record.
    8 A. Kenneth W. Liss, L-I-S-S.
    9 Q. Kenn, who is your current employer?
    10 A. Illinois EPA.
    11 Q. What is your position with the Illinois
    12 EPA?
    13 A. Groundwater unit manager, permits
    14 section.
    15 Q. And that's with the Bureau of Land?
    16 A. Bureau of Land.
    17 Q. And in the permits section, correct?
    18 A. Correct.
    19 Q. And how long, Kenn, have you been the
    20 unit manager?
    21 A. Since 1991.
    22 Q. Prior to 1991, were you employed by the
    23 Illinois EPA?
    24 A. Yes.
    25 Q. And what was your position with the
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    1 Illinois EPA prior to 1991?
    2 A. Senior technical groundwater person in
    3 the permits section.
    4 Q. And how long did you hold that position?
    5 A. About three years.
    6 Q. So approximately 1988 to 1991?
    7 A. Correct.
    8 Q. Prior to 1988, were you employed by the
    9 Illinois EPA?
    10 A. Yes.
    11 Q. And what was your position prior to 1988?
    12 A. Staff level.
    13 Q. In the groundwater unit?
    14 A. In the groundwater. I've been working in
    15 the groundwater at the EPA since August of '84.
    16 Q. And in all of your years with the Agency,
    17 you have been employed in the groundwater section?
    18 A. Doing groundwater work. It wasn't the
    19 groundwater section.
    20 Q. In the permits section?
    21 A. It was the compliance section. And in
    22 1991, permits section. But it's the same work.
    23 Q. Kenn, can you briefly tell us about your
    24 educational background?
    25 A. I have a bachelors degree in geology from
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    1 Illinois State University.
    2 Q. How does geology relate to groundwater?
    3 A. Geology is the study of the earth, and my
    4 studies are focused on groundwater movement through
    5 the earth.
    6 Q. Your studies now or your studies while
    7 you were in school?
    8 A. My studies now. And it was environmental
    9 in hydro classes in college.
    10 Q. Have you done any postgraduate work?
    11 A. Not in geology.
    12 Q. Have you done any at all?
    13 A. Chemistry and statistics.
    14 Q. Have you obtained any postgraduate
    15 degrees?
    16 A. No, I haven't.
    17 Q. What type of course work have you taken
    18 in chemistry and statistics?
    19 A. I don't know. The course -- let me see.
    20 It's basically statistics class and organics class
    21 that pertains to the machinery for groundwater
    22 samples.
    23 Q. Okay.
    24 A. A spectrometer.
    25 Q. My question is: How does this training
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    1 in chemistry and statistics benefit you in the --
    2 your current position with the Agency?
    3 A. In our position, we look at groundwater
    4 contamination. So it's necessary to look at a lot
    5 of data. We use statistics. And the samples that
    6 are taken to a laboratory. So I took the class to
    7 better understand how those numbers were derived.
    8 Q. Now, in addition to this, your
    9 undergraduate degree and postgraduate work, have
    10 you had any other training in the area -- areas
    11 related to groundwater?
    12 A. Yes.
    13 Q. Can you give us a general idea of what
    14 areas you've had training in?
    15 A. Okay. Continuing education credits in
    16 groundwater movement, sampling procedures, U.S. EPA
    17 courses. They put on seminars for the state,
    18 things like that. Probably eight, ten of them.
    19 Q. Kenn, are you also involved in the
    20 rulemaking procedures with the Illinois EPA?
    21 A. Yes.
    22 Q. And have you testified before the state
    23 legislature before?
    24 A. Yes, I have.
    25 Q. And on what issues did you testify?
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    1 A. Before the legislature -- legislation, it
    2 was for the certification and qualifications of
    3 geologists in the state.
    4 Q. And what about the rulemaking, what areas
    5 of rulemaking have you been involved in?
    6 A. Landfill rules, the groundwater rules,
    7 changes to the landfill rules for specific
    8 industries, solid waste landfills, utilities. I
    9 can't think ever anything else right now.
    10 Q. Okay. Now, Kenn, have you reached a
    11 point in your career where you are actually
    12 providing information at these seminars?
    13 A. Yes.
    14 Q. Conducting some of the training yourself?
    15 A. Yes.
    16 Q. And what areas did you conduct training
    17 in?
    18 A. Groundwater movement, looking at the
    19 numbers and basic training on how to review the
    20 data, what it means.
    21 Q. Okay. Now, as unit manager of the
    22 groundwater assistance unit, what do your job
    23 duties include?
    24 A. Currently I have 12 people that work for
    25 me. Bachelor's degree to masters degree. Some now
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    1 are specifically degree'd in hydrogeology. We look
    2 at compliance work, permitting work for landfills,
    3 groundwater detection, technical support for
    4 rulemakings at the Agency.
    5 Q. And how does your groundwater unit or
    6 section fit into the larger permits section of the
    7 Agency?
    8 A. Permits section is five units. We are
    9 one of the five, and it's concentrated on all the
    10 hydrogeology and groundwater chemistry aspects.
    11 Q. Now, getting to the Taylor Ridge facility
    12 in Rock Island. Have you through the course of
    13 your work at the Illinois EPA become aware of the
    14 Taylor Ridge landfill?
    15 A. Yes.
    16 Q. And have you reviewed various permits and
    17 permit submittals that pertain specifically to
    18 groundwater at the Taylor Ridge facility?
    19 A. Yes.
    20 Q. And as the manager of the groundwater
    21 assistance unit, would you have a responsibility
    22 for reviewing documents generated by the
    23 groundwater assistance unit with regard to the
    24 Taylor Ridge facility?
    25 A. Yes.
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    1 Q. And do you also, excuse me, as manager of
    2 the groundwater assistance unit, unit review,
    3 groundwater-related documents that are submitted by
    4 the landfill?
    5 A. Yes, I do.
    6 Q. Now --
    7 A. Or someone on my staff would review
    8 those.
    9 Q. Now, what types of documents do you
    10 review or have you reviewed related to groundwater
    11 that have been submitted by the Taylor Ridge
    12 facility?
    13 A. In preparation of this proceeding here, I
    14 looked at the 19- -- 1994 inspection by Ron
    15 Mehalic, the historical data that was submitted by
    16 the facility, and I reviewed part of the
    17 application for 814 -- part 814, which was a
    18 significant modification to the site's permit.
    19 Q. Ron, have you also reviewed groundwater
    20 monitoring, Ron?
    21 A. Kenn.
    22 Q. What did I say?
    23 A. Ron.
    24 Q. Kenn. Sorry about that?
    25 THE HEARING OFFICER: Last witness.
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    1 BY MS. SYMONS-JACKSON:
    2 Q. Have you also reviewed quarterly
    3 groundwater reports that have been submitted by
    4 Watts to the Illinois EPA?
    5 A. Yes, I have.
    6 Q. Kenn, I'm going to hand you what we have
    7 marked as Peoples Exhibit 53. Would you agree that
    8 this is a group exhibit that constitutes a
    9 compilation of the groundwater monitoring reports
    10 that the Agency has received from the Taylor Ridge
    11 facility?
    12 A. Yes.
    13 Q. And do you recall that Watts is required
    14 by permit to submit these reports to the Illinois
    15 EPA?
    16 A. Yes.
    17 MS. SYMONS-JACKSON: I would move
    18 for the admission of Peoples Exhibit 53.
    19 MR. NORTHRUP: No objection.
    20 THE HEARING OFFICER: It's admitted.
    21 BY MS. SYMONS-JACKSON:
    22 Q. Okay. Now, Ron -- I'm sorry. Kenn, I'm
    23 going to hand you a second exhibit, Peoples Exhibit
    24 54. You mentioned earlier a groundwater monitoring
    25 inspection report that had been prepared by Ron
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    1 Mehalic.
    2 Would you agree that this is, in fact,
    3 that report from August of 1994?
    4 A. Yes, it is.
    5 Q. Kenn, do you agree that this is the type
    6 of report that is typically prepared and kept in
    7 the Agency files in the regular course of Agency
    8 business?
    9 A. Yes, it is.
    10 MS. SYMONS-JACKSON: I would also
    11 move to admit Exhibit 54 into the record.
    12 THE HEARING OFFICER: Any
    13 objection?
    14 MR. NORTHRUP: No objection.
    15 THE HEARING OFFICER: It's admitted.
    16 BY MS. SYMONS-JACKSON:
    17 Q. Now, Kenn, based on your review of the
    18 documents contained in both Exhibits 53 and 54,
    19 have you developed some opinions regarding the
    20 status of the groundwater at the Taylor Ridge
    21 facility?
    22 A. Yes, I have.
    23 Q. Next exhibit I'm going to hand you is
    24 Peoples Exhibit 55. And can you identify for the
    25 record what this is?
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    1 A. Yes. This is a letter I prepared for you
    2 and Tom Davis, of the AG's office, concerning the
    3 conditions at the site.
    4 Q. And, Kenn, when did you prepare this
    5 letter?
    6 A. Oh, within the last two weeks, and it's
    7 dated October 25th, 1996.
    8 Q. Kenn, would you agree that this is the
    9 type of letter or document that is prepared in the
    10 regular course of your Agency business?
    11 A. Yes, it is.
    12 Q. And is this the type of document that
    13 would be kept in the Agency files in the normal
    14 course of the Agency's business?
    15 A. Yes, it is.
    16 MS. SYMONS-JACKSON: I would move to
    17 admit Exhibit 55 into the record.
    18 THE HEARING OFFICER: Any
    19 objection?
    20 MR. NORTHRUP: No objection.
    21 THE HEARING OFFICER: It's admitted.
    22 BY MS. SYMONS-JACKSON:
    23 Q. Kenn, would you agree that this report
    24 reflects the Agency's position regarding the
    25 groundwater situation at the Taylor Ridge facility?
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    1 A. Yes, it does.
    2 Q. And I want to address briefly some of the
    3 conclusions, the opinions that are contained in
    4 this exhibit 55.
    5 First of all, with regard to the
    6 classification of groundwater at that facility,
    7 Kenn, have you reached any opinion as to the
    8 classification of groundwater at this facility at
    9 this point in time?
    10 A. Yes, I have.
    11 Q. Okay. Can you explain that opinion for
    12 us, please.
    13 A. May I look at the letter.
    14 Q. Certainly.
    15 A. It's in point No. 1 of the October 25th
    16 letter. After reviewing the information submitted
    17 by the Watts facility, it appears that the
    18 groundwater could be Class I and in some areas
    19 Class II.
    20 Q. At this point in time, has the
    21 groundwater at the Taylor Ridge facility been
    22 classified as anything other than Class I?
    23 A. No, it has not.
    24 Q. Whose obligation is it to make a proposal
    25 that the groundwater is anything other than Class
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    1 I?
    2 A. The owner/operator.
    3 Q. And have you received any proposal from
    4 the owner/operator regarding a classification of
    5 groundwater at this facility?
    6 A. No. As of this date. I know we made a
    7 couple of requests, and it's in writing, and we
    8 have not received anything.
    9 Q. So as you sit here today, it's your
    10 opinion that the groundwater at the Taylor Ridge
    11 facility is a Class I resource groundwater?
    12 A. Yes.
    13 Q. Now, Kenn, have you reached any
    14 conclusions or do you have any opinions with regard
    15 to whether there are contaminants found in the
    16 groundwater at the Taylor Ridge facility?
    17 A. Yes, I have.
    18 Q. Can you explain those opinions for us?
    19 A. Yeah. Those were in point No. 2 of that
    20 same letter. And I noted increasing trends in high
    21 concentrations of inorganic compounds, based on the
    22 samples submitted by Watts, and similar
    23 concentrations in organic contaminants.
    24 I think these were from our 1994 FOS
    25 inspection by Ron Mehalic.
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    1 Q. Ron -- Kenn, do you have any opinion as
    2 to the source of these contaminants in the
    3 groundwater?
    4 A. Based on the information we have from the
    5 facility, it's my opinion that it is probably due
    6 to the facility.
    7 Q. Kenn, are you aware of whether the
    8 landfill currently has any problems with gas?
    9 A. To the specific problems, I'm not aware.
    10 I know that the Agency in the engineering
    11 department felt that there was a gas problem that
    12 needs to be addressed, and I am aware that they are
    13 pursuing selling the gas.
    14 Q. Do you have an opinion, Kenn, as to
    15 whether landfill gas can contribute to
    16 contamination of groundwater?
    17 A. Yes.
    18 Q. What is that opinion?
    19 A. As the landfill gas builds up, it puts
    20 additional pressure within the landfill itself.
    21 And the fluid build up, which is the leachate, has
    22 to have a place to go. And it generally goes out
    23 the bottom of the landfill or the sides. One other
    24 thing the gas can do is it can migrate through the
    25 more permeable sediments and cause gas
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    1 contamination, which carries with it some of the
    2 inorganics that we have seen or organics that we
    3 have seen.
    4 Q. Kenn, if I were to tell you -- and I
    5 believe there will be testimony offered later on in
    6 the course of this hearing that the landfill is
    7 estimated to be producing 200 cubic yards per
    8 minute -- 2,000 cubic yards per minute of landfill
    9 gas. How would that effect your opinion as to
    10 whether landfill gas plays any role in
    11 contaminating the groundwater at this site?
    12 A. I know from experience and from
    13 discussions with experts in this field that that's
    14 a significant amount of gas, and it would be worth
    15 removing. Therefore, the landfill is generating
    16 enough gas that would be putting pressure,
    17 additional pressure, inside the landfill, and it
    18 should be removed.
    19 I think you had the units mixed up.
    20 Q. Just to clarify, I think it's 2,000 cubic
    21 feet per minute.
    22 A. Feet per minute.
    23 Q. And your opinion is the same?
    24 A. Right.
    25 Q. Would you agree that production of
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    1 landfill gas at that volume would increase the
    2 chances of the gas contributing to the groundwater
    3 contamination?
    4 A. It's very probably.
    5 Q. Based on your review of all these
    6 documents, Kenn, do you have an opinion as to
    7 what -- what should the landfill do now to address
    8 the groundwater issues at the facility?
    9 A. In the permits for the landfill, they are
    10 required to do an assessment when certain values of
    11 these parameters that we monitor are exceeded. And
    12 they have not performed the assessment.
    13 Q. And the certain parameters that you
    14 monitor have been exceeded in the documents that
    15 you have reviewed from this facility?
    16 A. That's correct.
    17 Q. Okay. Kenn, I'm going to hand you
    18 Peoples Exhibit 56.
    19 THE HEARING OFFICER: This exhibit
    20 stipulated to, so it is in evidence.
    21 MS. SYMONS-JACKSON: Okay.
    22 BY MS. SYMONS-JACKSON:
    23 Q. Kenn, would you agree this is a copy of
    24 permit number 1995-374-SP?
    25 A. Yes.
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    1 Q. And is this, Kenn, a permit that was
    2 issued to the Watts landfill allowing them to
    3 perform a groundwater assessment and groundwater
    4 monitoring?
    5 A. That's correct.
    6 Q. When was this permit issued to the
    7 landfill?
    8 A. January 9th, 1996.
    9 Q. And do you know what the current status
    10 of this permit is?
    11 A. As far as I know, it's been appealed.
    12 Q. And are you aware, Kenn, as to whether
    13 any of the actions approved or required in permit
    14 1995-374-SP have been, in fact, implemented by the
    15 facility?
    16 A. I am not aware that they have complied
    17 with all of these things, if that's what you are
    18 asking. Specifically, with the groundwater
    19 monitoring. I had two other people reviewing all
    20 our records the past two weeks, which you've asked
    21 me to do, and we cannot find the information that's
    22 required by that permit.
    23 Q. So, in your opinion, they have not
    24 complied with this permit?
    25 A. That's correct.
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    1 Q. Now, Kenn, above and beyond the permit
    2 requirements contained in Exhibit 56, the landfill
    3 is required by regulation to perform groundwater
    4 assessment and monitoring?
    5 A. It's in their permit. Their part 807
    6 permit that we issued.
    7 MS. SYMONS-JACKSON: Okay. These
    8 are all the questions I have for you on direct,
    9 Kenn.
    10 THE HEARING OFFICER: Okay.
    11 Mr. Northrup.
    12 MR. NORTHRUP: Real quick.
    13 CROSS-EXAMINATION
    14 BY MR. NORTHRUP:
    15 Q. Is groundwater contamination common at
    16 landfills?
    17 A. No. Maybe you can clarify common. How
    18 common? Common in every day occurrence or --
    19 Q. Is groundwater contamination uncommon at
    20 landfills in Illinois?
    21 A. Depends upon how they are operated and if
    22 they are constructed in accordance with their
    23 plans.
    24 Q. Watts isn't the only landfill that may
    25 have groundwater contamination in Illinois?
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    1 A. No.
    2 Q. Do you have any idea how many landfills
    3 across the state might have a problem with
    4 groundwater contamination?
    5 A. No. We don't track that specifically.
    6 Q. Have you reviewed a submittal made by
    7 Watts' consultants CH2MHill on or about October
    8 18th to address sig-mod deficiencies?
    9 A. October 18th of what year?
    10 Q. '96.
    11 A. No. I have not seen it.
    12 Q. Now, you indicated that the source of the
    13 alleged contamination at the landfill is probably
    14 due to the facility, to the landfill?
    15 A. That's correct.
    16 Q. What might other sources be other than
    17 the landfill?
    18 MS. SYMONS-JACKSON: Let me object.
    19 It calls for speculation on the part of the
    20 witness.
    21 MR. NORTHRUP: Well, he's been
    22 qualified as an expert. He's rendered his opinions
    23 on where he thinks the contamination comes from.
    24 THE HEARING OFFICER:
    25 Mrs. Symons-Jackson, did you have anything
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    1 further?
    2 MS. SYMONS-JACKSON: This is the
    3 whole point. He testified, too, earlier he doesn't
    4 know until the assessment is performed what other
    5 possible sources might be contributing.
    6 MR. NORTHRUP: So how can he say it
    7 probably comes from the landfill? What's the basis
    8 for that if there is no assessment?
    9 THE HEARING OFFICER: I'm going to
    10 allow the question. Can you repeat it please for
    11 the witness?
    12 BY MR. NORTHRUP:
    13 Q. What might be other sources of
    14 contamination of the alleged contamination of this
    15 groundwater?
    16 A. Generally speaking, when we go into an
    17 assessment for a landfill, a facility looks at the
    18 analytical data to see if there is any errors in
    19 the sample data, the handling of the information.
    20 You look at the wells to make sure they are intact,
    21 so that surface water that's running off of the
    22 landfill may not be migrating down the casing. The
    23 way the wells -- if you have a bad well, let's
    24 say. There is background. Obviously if there is
    25 some source other than the landfill in the area,
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    1 there is that potential.
    2 Q. Iron is naturally occurring in the soil?
    3 A. Yes.
    4 Q. How about manganese?
    5 A. Yes.
    6 Q. You in your letter -- I can't remember
    7 what this was admitted as. Peoples 55. You
    8 reference on page two at the first paragraph,
    9 R.O.E.
    10 A. Uh-huh.
    11 Q. What is that?
    12 A. Residue on evaporation.
    13 Q. What does that mean?
    14 A. A sample is taken. It's a known volume.
    15 And the water is driven off or the liquid is driven
    16 off. It's just a determination of the solids.
    17 It's a way we determine similar like suspended
    18 solids, total dissolved solids. It's related to
    19 amount of solids in the sample.
    20 Q. If there is groundwater contamination in
    21 a facility, how can it be addressed?
    22 A. It depends upon the source.
    23 Q. Okay. Assuming the source is the
    24 landfill.
    25 A. Well, I mean, the source, meaning if it's
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    1 driven by gas, if it's a breach if the liner, if --
    2 if -- if the wells are bad, and surface water that
    3 is infiltrating down. It depends.
    4 Q. Okay.
    5 A. But I guess for your answer -- to answer
    6 you, I'll assume that it's the landfill and it's
    7 the leachate that's leaving the facility.
    8 Capping, which is redoing the cap for
    9 proper slope and reduce infiltration. Removing
    10 gas. Getting an idea of the leachate head buildup
    11 in removing the leachate. Most expensive and the
    12 worst way is to have to clean up the leachate after
    13 it leaves the facility and enters the groundwater.
    14 That's the purpose ever the assessment.
    15 Q. Cleaning up the groundwater in that
    16 scenario, is that commonly referred to as a pump
    17 and treat?
    18 A. That is one method.
    19 Q. What other methods are there?
    20 A. Sometimes we go for containment.
    21 Q. Which would be what?
    22 A. Going around the contaminated areas with,
    23 say, a slurry, sheet piles.
    24 Q. Okay. Now, if the contamination was
    25 driven by gas, how would you fix that?
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    1 A. We would first want to relieve the
    2 pressure, take care of the gas.
    3 Q. Now, are you aware that the Watts
    4 landfill has been issued a permit to operate a gas
    5 recovery system?
    6 A. I haven't specifically reviewed it.
    7 Q. In your opinion, would a gas recovery
    8 system relieve pressure from inside the landfill?
    9 A. It should, yes.
    10 Q. And if it relieves that pressure, would
    11 it be your opinion that groundwater contamination
    12 would be less likely --
    13 A. No.
    14 Q. -- than if there wasn't a system?
    15 A. No. The gas is a component that adds to
    16 the problem. In fact, if there is a leachate
    17 buildup on the liner, and depending upon how the
    18 facility is constructed, the leachate will still
    19 migrate.
    20 Q. Now, does the gas itself add -- in your
    21 opinion, can it add constituents to the
    22 groundwater?
    23 A. Yes, it can.
    24 Q. So it's not just that the gas itself
    25 facilitates movement of the groundwater?
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    1 A. Right. The gas can move as a separate
    2 phase and carries with it some of the highly
    3 volatile constituents of the leachate.
    4 Q. Okay. In your opinion, what are some of
    5 those highly volatile constituents?
    6 A. Based on what's been seen at the site,
    7 the chlorinated solvents.
    8 Q. This is the last area I want to ask you
    9 about. On this Exhibit 55, was it? On page -- the
    10 second to last page. Under heading No. 3. You
    11 have got some figures down here. That cost benefit
    12 to the operator for not complying with, I guess,
    13 its the groundwater assessment. You've got the
    14 figure 20,000 to 30,000. Can you explain where you
    15 came up with those figures?
    16 A. Yes. That's based on the analytical work
    17 and some consultant review. The figures are
    18 estimates. We have surveyed three different
    19 laboratories in the state, and we routinely look at
    20 the post closure and closure cost estimates
    21 provided by the landfills and analytical work is
    22 based on the list. Well, it's in your Peoples
    23 Exhibit 56.
    24 Q. So basically, these numbers are your
    25 opinion of what it would cost for Watts to
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    1 implement the groundwater assessment?
    2 A. That would be to take the samples and
    3 have them analyzed for the required parameters and
    4 compile the data. That does not include
    5 installation of any additional wells.
    6 Q. Are sulfates naturally occurring?
    7 A. Yes.
    8 MR. NORTHRUP: I don't have any
    9 further questions.
    10 THE HEARING OFFICER: Redirect.
    11 MS. SYMONS-JACKSON: Yes.
    12 REDIRECT EXAMINATION
    13 BY MS. SYMONS-JACKSON:
    14 Q. Kenn, are you aware of whether ESG Watts
    15 operates other landfills in the state of Illinois?
    16 A. Yes, I am.
    17 Q. Are you aware of the two other landfills
    18 operated by ESG Watts; Sangamon Valley and Viola?
    19 A. Yes, I am.
    20 Q. And are there groundwater problems at
    21 either or both of those facilities?
    22 A. I haven't looked at anything lately on
    23 Viola. But, yes, there is extensive groundwater
    24 problems at the Sangamon Valley.
    25 MS. SYMONS-JACKSON: That's all I
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    1 have.
    2 THE HEARING OFFICER: Mr. Northrup.
    3 MR. NORTHRUP: Yeah.
    4 RECROSS-EXAMINATION
    5 BY MR. NORTHRUP:
    6 Q. What are those extensive groundwater
    7 problems at Sangamon Valley?
    8 A. We -- oh, gosh. I can't give you
    9 specific permit numbers, but we have issued several
    10 permits to require groundwater remediation. There
    11 are people on the south side of the road that
    12 contamination is a -- these are private wells.
    13 It's been detected in their wells that the state
    14 has proven has come from the Watts facility. And I
    15 guess the situation -- it's our position the
    16 situation got worse because of their failure to act
    17 in accordance with their permits.
    18 Q. Do you know if Watts is undertaking any
    19 groundwater remediation at that site?
    20 A. I know he's -- the Watts company is
    21 required to. I know specifically that some wells
    22 were replaced and that they are trying to repair
    23 the liner, which evidently was not installed on the
    24 one side of the landfill. And as for any
    25 groundwater, pump and treat, I'm not aware that
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    1 it's been implemented.
    2 Q. I assume there are other landfills in
    3 Illinois besides the Watts landfills that have
    4 groundwater problems.
    5 A. Yes.
    6 MR. NORTHRUP: Okay. I don't have
    7 any further questions.
    8 MS. SYMONS-JACKSON: I don't have
    9 anything else.
    10 THE HEARING OFFICER: Okay. Let's
    11 go off the record.
    12 (Off-the-record discussion held.)
    13 (Recess taken.)
    14 THE HEARING OFFICER: I'd like to go
    15 back on the record if everybody is ready. Please
    16 swear the witness.
    17 JOHN TAYLOR,
    18 called as a witness, after having been first duly
    19 sworn, was examined and testified as follows:
    20 DIRECT EXAMINATION
    21 BY MS. SYMONS-JACKSON:
    22 THE HEARING OFFICER: Okay. We are
    23 back on the record, Ms. Symons. Could you please
    24 begin.
    25 BY MS. SYMONS-JACKSON:
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    1 Q. Would you state your name for the record,
    2 please.
    3 A. John Taylor.
    4 Q. Mr. Taylor, with whom are you currently
    5 employed?
    6 A. The Illinois EPA.
    7 Q. What is your job with the Illinois EPA?
    8 A. I'm a financial assurance analyst.
    9 Q. And how long have you been the Agency's
    10 financial assurance analyst?
    11 A. About a little over six-and-a-half years.
    12 Q. What types of facilities are you a
    13 financial assurance analyst for?
    14 A. Solid waste disposal facilities, tire
    15 storage disposal sites, underground injection
    16 control facilities, and I oversee some of the
    17 compost site financial assurance issues.
    18 Q. Can you describe for us, John, what your
    19 duties are as a financial assurance analyst for the
    20 Illinois EPA?
    21 A. My primary duty is to review financial
    22 assurance documents submitted to the Agency by
    23 operators of the facilities in question and to
    24 determine compliance with the applicable statutes
    25 and regulations, and if there is a lack of
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    1 compliance initiate enforcement activities.
    2 Q. Now, prior to becoming a financial
    3 assurance analyst, did you have any other
    4 experience regarding landfills?
    5 A. Yes. I worked for the EPA as a field
    6 operations inspector from 1975 to 1980 and worked
    7 in the industry from 19- -- roughly from 1980
    8 through 19- -- or sorry. From 19- -- yes. 1980 to
    9 1990, when I returned to the Agency.
    10 Q. So how many total years have you worked
    11 for the Illinois EPA?
    12 A. A little over 11.
    13 Q. John, what sorts of educational
    14 background do you have?
    15 A. I have a bachelor's degree in economics,
    16 a master of business administration from Washington
    17 University in St. Louis, and I've completed half
    18 the requirements of a jurist doctorate degree in
    19 St. Louis University.
    20 THE HEARING OFFICER: Mr. Taylor,
    21 can you please speak up. Some people are having
    22 trouble hearing.
    23 THE WITNESS: Okay.
    24 BY MS. SYMONS-JACKSON:
    25 Q. John, can you tell us what is financial
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    1 assurance?
    2 A. Concept of financial assurance is
    3 straightforward. Operators of pollution control
    4 facilities, such as landfills, are required by
    5 statutes and regulation now to provide some form of
    6 financial guaranty that they will be able to --
    7 they or someone else will be able to clean up the
    8 facility at the end of its useful life, that there
    9 will be money -- effectively money available to
    10 close the landfill and provide for monitoring after
    11 closure and maintenance and related activities.
    12 Q. Okay. John, have you had an opportunity
    13 to review financial assurance related documents
    14 with regard to the Taylor Ridge facility?
    15 A. Yes, I have.
    16 Q. Can you give us a brief idea of what sort
    17 of documents you would review?
    18 A. In the course of -- course of my duties,
    19 I would review the permits that have been issued to
    20 the facilities that set forth the financial
    21 assurance requirements, any information provided by
    22 the operator at the site.
    23 And in this case, we periodically receive
    24 reports from the trustee of the trust created for
    25 the financial -- to meet the financial assurance
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    1 requirement for this facility.
    2 Q. Okay. And based on your review of these
    3 documents, would you agree that the financial
    4 assurance obligations for the Taylor Ridge landfill
    5 have increased over the past several years?
    6 A. Yes, they have.
    7 Q. Can you explain for us how financial
    8 assurance is calculated and why there might be
    9 these increases over time?
    10 A. Okay. Financial assurance requirements
    11 are developed by the operator's consultants,
    12 usually a consulting engineering firm. And it's
    13 basically a third-party estimate of all the costs
    14 of closing the facility, providing post closure
    15 care and maintenance.
    16 These estimates are submitted to the EPA
    17 as part of a permit application and approved by our
    18 permits section and generally are included in a
    19 permit letter issued to the operator.
    20 Q. So the cost estimates for final assurance
    21 are provided to the Agency by the owner/operator?
    22 A. Yes.
    23 Q. And is there a mechanism by which the
    24 facility is required to update cost estimates?
    25 A. Yes. The regulations for landfill
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    1 facilities are -- contain various, depending on
    2 which -- depending on which set of the regulations
    3 the facility is operating under, there are various
    4 forms of various requirements to update the cost
    5 estimates.
    6 Q. John, would you agree that this facility
    7 is currently operating under the 807 part 807
    8 regulations?
    9 A. Yes.
    10 Q. And under those 807 regulations, what are
    11 the requirements regarding submitting revised cost
    12 estimates?
    13 A. Okay. Generally speaking, rule 807.623
    14 requires that the cost estimates for these
    15 facilities be revised every two years.
    16 Q. And is there a specific due date that's
    17 assigned for that revision?
    18 A. Yes. Generally there is, yes.
    19 Q. How is that date determined?
    20 A. As I recall, there is an Agency policy
    21 statement that explains it in detail. But when a
    22 facility is first issued -- or first issued a
    23 permit, including the approval of a closure and
    24 post closure care plan, they are given a date two
    25 years hence. And which to -- at which time they
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    1 must provide revised cost estimates. At that time
    2 they are effectively assigned that date every two
    3 years indefinitely for the life of the site such
    4 that -- as an example. If your first permit were
    5 issued July 1st of a year, that your next revision
    6 would be two years from that date and two years
    7 further and then two years after that.
    8 But if there are problems with the
    9 revisions, so on so forth, and delay in meeting
    10 this requirement, you don't get additional time.
    11 Q. Okay. Now John, what happens in that
    12 two-year period -- say cost estimate is approved.
    13 Let's take your example. July 1, 1990. Say on
    14 some day within the two-year period from July 1
    15 1990 to July 1, 1992, there is some reason that the
    16 facility has to file a revised cost estimate within
    17 that amount of time.
    18 A. Yes.
    19 Q. And it's approved within that amount of
    20 time. When is the next cost estimate due?
    21 A. It would be due July 1st of two years
    22 hence from the date of the initial permit according
    23 to the -- to our policy -- the Agency's policy.
    24 Q. So any interim revision within that
    25 two-year period does not change the date for the
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    1 biannual cost revision?
    2 A. Normally, no.
    3 Q. And do you know, does the Taylor Ridge
    4 facility have a set biannual revision date?
    5 A. I believe so, yes.
    6 Q. Do you know what that date is?
    7 A. It's in late November. I believe the
    8 next biannual revision due is next month.
    9 Q. November of 1996?
    10 A. Right.
    11 Q. And do you know when the first biannual
    12 revision was due to be submitted from Watts for the
    13 Taylor Ridge facility?
    14 A. No, I don't. I'm -- not from memory.
    15 Q. John, are there any documents that you
    16 have prepared in anticipation for your testimony
    17 today that might help refresh your recollection as
    18 to the exact biannual revision date?
    19 A. Yes. I prepared a memorandum file as a
    20 result of the review of the relevant documents for
    21 you last week.
    22 Q. Okay. I'm going to hand you a copy of
    23 Peoples Exhibit 59. Memorandum prepared on October
    24 25, 1996.
    25 Can you take a look at that document and
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    1 please inform us if it refreshes your recollection
    2 as to the biannual revision due date?
    3 A. Yes. I believe the next biannual
    4 revision due date would be November 28th, 1996.
    5 Q. So would you agree, then, that the first
    6 due date would have been November 28 of 1994?
    7 A. There may have been others before that.
    8 I just don't recall.
    9 Q. Okay. Would you agree that a biannual
    10 revision was due on November 28, 1994?
    11 A. Yes.
    12 Q. And, John, based on your review of the
    13 documents in your Agency file, are you aware of
    14 whether Watts did file a revised cost estimate on
    15 November 28, 1994?
    16 A. I recall that they did not. However, the
    17 next biannual revision was finally approved some 13
    18 months after the November 28th, 1994 date.
    19 Q. So at some point then after November 28,
    20 1994, a revision must have been filed?
    21 A. Yes.
    22 Q. Now, John, as of November 28th -- well
    23 strike that. Let me start over.
    24 Can you tell us what financial assurance
    25 mechanisms a facility can use to provide financial
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    1 assurance?
    2 A. Yes. There are six for solid waste
    3 disposal facilities. Payment bond, performance
    4 bond, closure insurance, letter of credit,
    5 self-insurance. And forgetting one other, I guess.
    6 I believe that's all of them.
    7 Q. Okay. Now, the Watts facility, in this
    8 case for Taylor Ridge, has provided any financial
    9 assurance for the facility?
    10 A. Yes. They used the sixth method, the
    11 trust funds.
    12 MR. NORTHRUP: I'm going to object
    13 at this point with respect to any line of
    14 questioning on Watts' funding of financial
    15 assurance. I've made the objection yesterday.
    16 There is no allegation in the complaint
    17 that deals with funding type of issues, whether or
    18 not Watts has assurance or not.
    19 The complaint is solely limited to when
    20 revisions have or have not been filed. With
    21 respect to the anticipated testimony for this
    22 September (sic) deadline, again, that's -- that has
    23 occurred.
    24 I mean, there has been no notice pursuant
    25 to 31-D of the Act for that. So I don't think any
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    1 of that is relevant.
    2 THE HEARING OFFICER:
    3 Ms. Symons-Jackson.
    4 MS. SYMONS-JACKSON: A couple of
    5 comments, Ms. Hearing Officer. First of all, we do
    6 believe this evidence in this testimony is
    7 relevant.
    8 The respondent has opened the door to the
    9 financial condition of the corporation of the
    10 landfill and the corporation, ESG Watts, in their
    11 answers to interrogatories.
    12 If there is a legal objection to the
    13 testimony that we are going to be presenting, then
    14 I would suggest that we just address that in our
    15 briefs.
    16 In our complaint we do make allegations
    17 regarding the failure to file revised cost
    18 estimates. And in our supplemental pleading, we do
    19 indicate that we will be presenting evidence and
    20 proving up violations that have continued from the
    21 date of our complaint.
    22 THE HEARING OFFICER: Okay. Do you
    23 have anything else, Mr. Northrup?
    24 MR. NORTHRUP: Yeah. Again, that's
    25 right. The complaint talks about failure to -- to
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    1 file revisions. There is nothing about whether
    2 these things are adequately funded.
    3 Furthermore, I don't think I have opened
    4 the door in any of my answers to interrogatories on
    5 the funding issue.
    6 THE HEARING OFFICER: Okay. I'm
    7 going to allow it. The Board's rules do plainly
    8 state that proof may depart from the pleadings and
    9 that pleadings may be amended, as long as there is
    10 no undue surprise.
    11 In this case, I don't believe that it
    12 should come as a surprise that this information is
    13 being brought up.
    14 Mr. Northrup, if you wish to make
    15 arguments as to 31-D notice, you may do so in your
    16 brief.
    17 MR. NORTHRUP: Okay.
    18 MS. SYMONS-JACKSON: I would just --
    19 Ms. Hearing Officer, I would ask that you please
    20 acknowledge and state on the record that we have
    21 advised Mr. Northrup of our intentions to address
    22 these issues at the hearing during previous phone
    23 conversations. I believe the first of which
    24 occurred over a month ago.
    25 THE HEARING OFFICER: You're asking
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    1 me to recall something that I'm not sure that I
    2 recall specifically talking about the amount of
    3 money in the trust funds. So I can't make that
    4 statement on the record.
    5 We did have several pre-hearing phone
    6 conferences where I believe that the attorney
    7 general's office made it clear that they would be
    8 trying to prove ongoing violations, and anything --
    9 any proof that they could find to show that. But
    10 as to the specific information, I don't remember
    11 that.
    12 MS. SYMONS-JACKSON: Okay.
    13 THE HEARING OFFICER: It's not that
    14 you didn't do it. It's just that I don't remember
    15 that conversation.
    16 MR. NORTHRUP: I'll make the
    17 affirmative statement, that issue did come up in
    18 phone conversations, and I did indicate at that
    19 time that I would be raising these objections to
    20 it.
    21 THE HEARING OFFICER: Okay. And
    22 certainly, this does not prescribe you from any
    23 legal arguments in your briefs. But I am going to
    24 allow the information into evidence now.
    25 MS. SYMONS-JACKSON: May I continue?
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    1 THE HEARING OFFICER: Yes. Please.
    2 MS. SYMONS-JACKSON: Ms. Hearing
    3 Officer, I'm going to need the original Peoples
    4 Exhibit 2 that we introduced into evidence earlier
    5 in the case.
    6 THE HEARING OFFICER: Certainly.
    7 Let's go off the record for a minute.
    8 (Off-the-record discussion held.)
    9 THE HEARING OFFICER: Then let's
    10 continue.
    11 MS. SYMONS-JACKSON: Okay.
    12 BY MS. SYMONS-JACKSON:
    13 Q. John, we have just handed you a copy of
    14 the permit the number of which is 1996-087-SP. I
    15 would ask that you please review that permit and
    16 tell us what the approved cost estimate is in that
    17 permit.
    18 A. The approved current cost estimate or the
    19 current cost estimate approved by this permit is
    20 $1,299,564.
    21 Q. And, Mr. Taylor, are you aware of what
    22 the current balance of the trust fund for Watts'
    23 financial assurance is?
    24 A. Yes. As of the latest available
    25 information as of this morning was that the fund
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    1 contains just over $435,000. As of Friday. The
    2 close of business Friday, October 25th.
    3 Q. And where did you get this information?
    4 A. From the trustee, the Rock Island Bank.
    5 Q. John, based on your review of this permit
    6 that I've handed you that was previously admitted
    7 into evidence as Peoples Exhibit 2, is there a due
    8 date on which the facility was required to provide
    9 that amount of financial assurance?
    10 A. Okay. In accordance with rule 807.603
    11 the operator was to provide additional financial
    12 assurances so as to equal the current cost estimate
    13 within 90 days of the issuance of the permit, which
    14 was June 13th, 1996.
    15 So on or about September 13th, 1996, the
    16 rules would require the operator to provide
    17 financial assurance at least equal to 1,299,000 so
    18 forth.
    19 Q. Okay. John, I'm going to hand you what
    20 we have already marked as Peoples Exhibits 57 and
    21 58. I'm going to ask that you identify both of
    22 those, referring to each exhibit number for the
    23 record.
    24 A. Yes. These are both memoranda prepared
    25 by myself. Peoples Exhibit 57 is a memorandum
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    1 detailing a financial assurance record review
    2 performed by myself on September 19th, 1996. And
    3 Peoples Exhibit 58 is a memorandum, prepared again
    4 by myself, detailing the deficiencies and the three
    5 trust funds for the three ESG Watts sites in
    6 Illinois.
    7 Q. John, are these the types of reports that
    8 you would normally prepare in the regular course of
    9 your business and your duties as a financial
    10 assurance analyst --
    11 A. Yes.
    12 Q. -- at the Illinois EPA?
    13 A. Yes.
    14 Q. And are these the type of reports that
    15 you would, as a matter of custom or business, keep
    16 in the Agency files regarding this landfill?
    17 A. Yes.
    18 MS. SYMONS-JACKSON: Ms. Hearing
    19 Officer, I would move to admit both Exhibits 57 and
    20 58 into evidence.
    21 THE HEARING OFFICER: Is there an
    22 objection?
    23 MR. NORTHRUP: No. Other than just
    24 subject to the prior objection on the line of
    25 questioning.
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    1 THE HEARING OFFICER: Okay. They
    2 are both admitted.
    3 BY MS. SYMONS-JACKSON:
    4 Q. John, referring to Peoples Exhibit 57.
    5 Can you tell us briefly what information is
    6 contained in this document?
    7 A. Okay. This document is a -- a written --
    8 written report that details the violations I found
    9 at the time of the review on September 19th. It's
    10 various information detailing what financial
    11 assurances, what the financial assurance
    12 requirements are for the facility and what
    13 financial assurance has been provided by the
    14 operator, and any apparent violations of the Act
    15 and regulations.
    16 Q. John, is it your opinion that the
    17 violations that you included in that record have
    18 continued to the present?
    19 A. Yes.
    20 Q. Okay. Now, looking at Peoples Exhibit
    21 58. You indicated that this addresses financial
    22 assurance at the three ESG Watts facilities in the
    23 state of Illinois, correct?
    24 A. Yes.
    25 Q. And what was the purpose in preparing
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    1 this document?
    2 A. To provide -- to provide information to
    3 anyone looking at any of the three site files for
    4 the ESG Watts facilities. That information about
    5 the sister facilities or the other facilities also
    6 owned by Watts, such that the financial assurance
    7 violations that did not only pertain to one of
    8 these sites but all three sites were seriously
    9 underfunded.
    10 Q. So it's your conclusion, then, that each
    11 of the three ESG Watts facilities are underfunded
    12 with their financial assurance obligations?
    13 A. Yes.
    14 Q. And, John, based on your experience as
    15 the financial assurance analyst for the Agency,
    16 what concerns do you have when you find a facility
    17 that is underfunded in its financial assurance
    18 obligations to the state?
    19 A. I believe what our concern is a larger
    20 picture. Is that -- that there is a possibility
    21 that the site will be abandoned, and the taxpayers
    22 ultimately will end up providing the closure and
    23 post closure of the facility. And effectively, the
    24 operator -- the operator or the customers of the
    25 operator that use the facility wouldn't be paying
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    1 the true cost of closure and post closure care of
    2 the facility. The burden will be borne by the
    3 taxpayers.
    4 Q. John, would you agree that for a facility
    5 that has a number of operational violations, would
    6 your concern regarding the lack of sufficient funds
    7 to close and post close the facility is heightened,
    8 that your concern is heightened by that?
    9 A. Yes. I believe so.
    10 Q. And why would that be?
    11 A. Just in general, you know, it would be
    12 more concerned that higher likelihood that the site
    13 may be abandoned for any number of reasons. There
    14 simply wouldn't be enough money to close it or
    15 provide monitoring and maintenance after closure.
    16 Q. Now, referring to document Exhibit 58.
    17 Have you reached a conclusion as to the total
    18 extent of underfunding attributable to the three
    19 Watts facilities in Illinois?
    20 A. Yeah. As of the time I prepared this
    21 memorandum, the total deficiency for the three
    22 facilities was l,842,000.
    23 Q. And what portion of that amount is
    24 attributable to the Taylor Ridge facility?
    25 A. At the time, it was $869,000.
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    1 Q. Okay. John, I'm going to hand you a copy
    2 of Peoples Exhibit 59. Can you please identify
    3 this document for the record.
    4 A. Yes. It's a memorandum I prepared on
    5 October 25th, 1996, with an estimate of possible
    6 economic benefits from failure to fund the trust
    7 for the Andalusia site.
    8 Q. Okay. When did you say this document was
    9 prepared?
    10 A. October 25th.
    11 Q. And is this the type of document that you
    12 would normally prepare in the regular course of
    13 your business and duties as a financial assurance
    14 analyst for the Illinois EPA?
    15 A. Yes. I occasionally produce information
    16 like this.
    17 Q. And is this the type of report that you
    18 would as a matter of customary business keep in the
    19 Agency files regarding the Taylor Ridge facility?
    20 A. Yes.
    21 MS. SYMONS-JACKSON: Ms. Hearing
    22 Officer, I would move to admit Peoples Exhibit 59
    23 into evidence.
    24 THE HEARING OFFICER: Is there an
    25 objection?
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    1 MR. NORTHRUP: No. Other than
    2 subject to my prior objection on relevance.
    3 THE HEARING OFFICER: Okay. That
    4 Exhibit 59 is also admitted into evidence.
    5 BY MS. SYMONS-JACKSON:
    6 Q. John, referring to Exhibit 59. And based
    7 on your experience with the Agency, do you have an
    8 opinion as to whether ESG Watts has benefitted
    9 economically from failing to properly fund its
    10 financial assurance trust fund for the Taylor Ridge
    11 facility?
    12 A. Yes.
    13 Q. Can you explain your opinions for us,
    14 please.
    15 A. Yes. Generally assume that there is some
    16 form of benefit from failure to fully fund a
    17 trust. Otherwise, the question would be, why would
    18 they not fund the trust if there was no benefits in
    19 not doing so. Placing some sort of a cost on the
    20 benefits is a little more problematical.
    21 The method I used is, simply put, for
    22 this analysis was assume a cost of capital for ESG
    23 Watts as a company, minus what sort of interest
    24 rate they would receive from the investments in the
    25 trust fund. And in giving that a number, and an
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    1 assumed number obviously, and multiplying that
    2 interest rate times the deficiencies since the
    3 site -- since the point in time it was decided the
    4 trust fund was underfunded.
    5 Q. Okay. You indicated that this assumed
    6 number -- the percentage that you come up with, is
    7 an -- an assumed number?
    8 A. Yes.
    9 Q. What do you base that on?
    10 A. Well, several assumptions you have to
    11 make. First is what the trust fund would earn.
    12 What trust funds like this or what this specific
    13 trust fund earns. And that -- the trust fund this
    14 year has earned very little money. But sort of
    15 arbitrarily assigned it a return of 3 percent.
    16 Q. And is that based on your review of what
    17 trust funds such as this one typically earn?
    18 A. That's a little difficult. Right now,
    19 for example, CD's and government bonds are earning
    20 about 5 percent. However, this trust, I believe,
    21 from December 31st of this year to September,
    22 earned something like 1-1/2 percent for nine
    23 months. So something like 2 percent.
    24 So the annual rate that they are earning
    25 is something actually less than 3 percent. That's
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    1 where that number came from.
    2 The -- the other number is even harder to
    3 come up with. It would be a cost of capital to ESG
    4 Watts, who historically has not had a great credit
    5 rating. I obviously don't know what their cost of
    6 capital is. But have to assume that it would be
    7 much higher than normal. And I just for the sake
    8 of demonstrating, assign it a cost capital of 15
    9 percent.
    10 Q. And the cost of capital, is that the
    11 interest rate that you are assuming ESG Watts is
    12 going to have to pay to borrow or obtain that
    13 money?
    14 A. Yes. Exactly.
    15 Q. And in formulating that number, do you
    16 look at the standard interest rates in the banging
    17 facility for this time?
    18 A. No. As I say, it's a difficult number to
    19 come up with. It would depend largely on how ESG
    20 Watts obtains funds, who they obtain them from,
    21 what sort of rates they have to pay.
    22 Without some testimony from someone from
    23 Watts, it would be extremely difficult to pin
    24 down. I used this number as an approximation for
    25 the sake of this demonstration.
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    1 Q. Okay. And based on these calculations,
    2 have you come up with an amount of money that would
    3 show the amount that ESG Watts is benefiting by
    4 failing to properly fund their trust fund?
    5 A. Assuming that these numbers are -- that
    6 the cost of capital to Watts is somewhere near
    7 accurate, that their economic benefits by failure
    8 to fund the trust would be in the neighborhood of
    9 $55,000.
    10 Q. Per year?
    11 A. No. That would be more the period from
    12 November of 1994 to the present.
    13 Q. Okay. Now, from the period of
    14 September -- mid September 1996 until today, do you
    15 have an opinion as to what their economic benefit
    16 is, say, on a per month basis?
    17 A. Assuming -- assuming -- given the
    18 previous assumptions, it would probably be
    19 something like $9,000 a month.
    20 Q. And that benefit will continue to improve
    21 to ESG Watts until their financial assurance
    22 properly funded.
    23 MS. SYMONS-JACKSON: That's all the
    24 direct examination I have, John.
    25 THE HEARING OFFICER: Mr. Northrup.
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    1 CROSS-EXAMINATION
    2 BY MR. NORTHRUP:
    3 Q. Are you aware that the sig-mod submitted
    4 in September of '94 contained cost revisions?
    5 A. Not specifically, no.
    6 Q. Do -- your calculations on Peoples
    7 Exhibit 59, do they take into account the fact that
    8 Watts was overfunded from the period at least
    9 assuming from March 1, '93 through November of '94?
    10 A. No.
    11 Q. Would it be true to say that Watts --
    12 Watts employees, particularly a financial person,
    13 is in a better position to identify their cost of
    14 capital?
    15 A. Certainly. Yes.
    16 Q. Do you know what the prime rate is today?
    17 A. No, I don't. I have yesterday's Wall
    18 Street Journal with me. We can like it up.
    19 Offhand, I don't know.
    20 Q. Is it more than 3 percent?
    21 A. I don't recall. I really don't recall
    22 what it is.
    23 Q. Okay. Now, you indicated that between
    24 December 31st, I guess, of '95 and September of
    25 this year, Watts earned about 1-1/2 percent on its
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    1 trust fund.
    2 A. I believe that's correct, yes.
    3 Q. Again, where did that number come from?
    4 A. Okay. The balance -- the market value of
    5 the trust as of December 31st, '95 was
    6 four-twenty-four, six-thirty-five, eighty-eight.
    7 And as of September 13th, it was four-thirty-nine,
    8 forty-one.
    9 If you want to do the calculation, I
    10 think you'll find that's like 1.3 percent or
    11 something over a nine-month period. So a very low
    12 increase in value.
    13 Q. Okay. Do you know what Watts has
    14 invested these trust funds in, these funds in?
    15 A. Not offhand, no, I don't.
    16 Q. Okay.
    17 A. That would be between Watts and the
    18 trustee.
    19 Q. Do you know who an individual name John
    20 Lawly (phonetic spelling) is?
    21 A. I don't believe so, no.
    22 Q. Have you ever -- do you ever recall
    23 having a telephone conversation with him, perhaps a
    24 Jack Lawly?
    25 A. Not offhand, I don't. Not offhand.
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    1 Q. Do you recall discussing financial
    2 assurance with anyone on Watts' behalf last week,
    3 funding mechanisms?
    4 A. Yes, sir. I've had several phone calls
    5 from people. Some of whom, I've known. Some I
    6 don't recall their names.
    7 Q. Okay. Who are the ones who you recall
    8 their names?
    9 A. I believe we had somebody from Scheer's
    10 Incorporated. It's a bond broker in the Chicago
    11 area.
    12 MS. SYMONS-JACKSON: Can you speak
    13 up?
    14 THE HEARING OFFICER: Thank you.
    15 BY MR. NORTHRUP:
    16 A. I had a telephone conversation with
    17 someone from shears incorporated. It's
    18 S-C-H-E-E-R-'-S. It's a brokerage firm in Chicago,
    19 and I believe two other telephone calls in the last
    20 four to six weeks.
    21 Q. Okay. On those two other calls, what
    22 were the subjects of those calls?
    23 A. I believe people were asking about - they
    24 were asking questions, about how the financial
    25 assurance regulations for the Watts -- not for the
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    1 Watts. They were asking about how various
    2 financial assurance mechanisms and regulations were
    3 in Illinois.
    4 Q. Do you recall specific discussion about
    5 the availability of insurance?
    6 A. Yes. Someone did call last week. That
    7 may be the person that you were asking about.
    8 Someone called last week and asked about closure
    9 insurance.
    10 Q. And what did you tell that person?
    11 A. That it's one of the availability
    12 mechanisms.
    13 Q. Did you say it wasn't an available
    14 mechanism to Watts?
    15 A. I wouldn't know if it's an available
    16 mechanism to Watts. But I believe I told him that
    17 as of this time we have no closure -- I do not
    18 believe we have any closure insurance for any
    19 facilities in Illinois, other than Brownie Ferris
    20 (phonetic spelling) industry sites and the waste
    21 management sites. And those are issued by
    22 subsidiary companies of BFI and waste management,
    23 and they are not available to anyone, to other
    24 facility operators.
    25 Q. But insurance is an acceptable financial
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    1 assurance mechanism?
    2 A. Yes.
    3 Q. Did you state or imply to this gentleman
    4 that there would be no way Watts would be able to
    5 ever get insurance -- or financial insurance?
    6 A. I don't recall using that language. I
    7 told him I thought it was highly unlikely he
    8 would be able to obtain closure insurance, since
    9 no one -- since we don't have any. No one has
    10 successful.
    11 THE HEARING OFFICER: Mr. Taylor,
    12 you are trailing off.
    13 THE WITNESS: I'm sorry.
    14 BY MR. NORTHRUP:
    15 A. I told him that I thought it would be
    16 highly -- highly unlikely that Watts would be able
    17 to obtain financial assurance, as there was no --
    18 there are no policies issued that we have accepted
    19 to date.
    20 Q. So there is some discretion on your part
    21 as to whether or not to accept insurance as an
    22 acceptable funding mechanism?
    23 A. No. If -- there is no discretion if the
    24 if the policies meet the requirements of the Act
    25 and regulations. Obviously, we must accept them.
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    1 Q. Did you tell this individual that it was
    2 highly unlikely that you would approve insurance as
    3 an acceptable funding mechanism for the Watts
    4 facility?
    5 A. Not in those words. They were asking --
    6 Q. What words?
    7 A. They were asking whether or not Watts
    8 would -- would be able to obtain insurance. I told
    9 him it was highly unlikely. There are no policies.
    10 So far.
    11 Q. Well, I don't think that quite answers my
    12 question.
    13 Did you tell this individual that it was
    14 highly unlikely you would approve insurance as an
    15 acceptable funding mechanism for Watts?
    16 A. That was the net result of our
    17 conversation, yes. I thought it was highly
    18 unlikely he would be able to obtain insurance.
    19 Q. Well, did you tell him in so many words
    20 that it was highly unlikely that the Agency would
    21 approve insurance as a funding mechanism for
    22 financial insurance?
    23 MS. SYMONS-JACKSON: I'm going to
    24 object. You've asked this question three times. I
    25 haven't said anything before now. It's been asked
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    1 and answered.
    2 MR. NORTHRUP: Yeah. I get
    3 different answers every time I ask it.
    4 THE HEARING OFFICER: I'm actually
    5 going to overrule your objection, because I haven't
    6 heard a responsive answer yet. And I was actually
    7 going to reask the question if Charlie didn't.
    8 So, Mr. Taylor, if you will answer the
    9 question specifically. Just what he is asking.
    10 Not a net result of your conversation. But did you
    11 say those words?
    12 BY MR. NORTHRUP:
    13 A. You are obviously asking me to recall
    14 what I said in a phone call to someone whose name I
    15 didn't remember in the past.
    16 What I recall saying to him was that I
    17 thought it was highly unlikely ESG Watts would be
    18 able to obtain an insurance policy that would be
    19 acceptable to the Agency. And exactly what words I
    20 used, I frankly don't recall.
    21 THE HEARING OFFICER: Okay. Let's
    22 go ahead and move on.
    23 MR. NORTHRUP: I don't have any
    24 further questions.
    25 THE HEARING OFFICER: Redirect.
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    1 MS. SYMONS-JACKSON: I don't have
    2 any.
    3 THE HEARING OFFICER: Okay. Thank
    4 you. Let's go off the record.
    5 (Off-the-record discussion held.)
    6 THE HEARING OFFICER: Go ahead and
    7 go back on the record. Does the state have any
    8 further witnesses?
    9 MS. SYMONS-JACKSON: No, we do not.
    10 THE HEARING OFFICER: Okay.
    11 MR. DAVIS: Ms. Hearing Officer, we
    12 would, however, move pursuant to stipulation
    13 Peoples Exhibit 62 identified as the judgment order
    14 in the Sangamon Valley case; Peoples Exhibit No. 3
    15 (sic), the first contempt order in the Sangamon
    16 Valley case, and Peoples Exhibit No. 64, the
    17 supplemental contempt order.
    18 (Proceedings interruption.)
    19 MR. DAVIS: Let me start over.
    20 THE HEARING OFFICER: Peoples
    21 Exhibit 62 through 64?
    22 MR. DAVIS: Yes, Ms. Hearing
    23 Officer.
    24 THE HEARING OFFICER: Okay.
    25 MR. DAVIS: Peoples Exhibit 63, the
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    1 first contempt order in the Sangamon Valley case;
    2 and Peoples Exhibit, 64 the supplemental contempt
    3 order in the Sangamon Valley case.
    4 THE HEARING OFFICER: Okay. Those
    5 are admitted into evidence by stipulation.
    6 MR. DAVIS: The People would also
    7 tender for a ruling on admissability at this point
    8 the 1994 U.S. corporate income tax return and the
    9 1995 U.S. corporate income tax return. Which would
    10 be No. 66 and 67.
    11 We have had a discussion off the record,
    12 and I'll reiterate part of that. We only have one
    13 copy of these documents with us. We would ask for
    14 a ruling at this point in time and be prepared to
    15 argue the objection that we anticipate. And if
    16 there -- if the exhibits are admitted, we would
    17 provide the court - the hearing officer with copies
    18 within a few days.
    19 THE HEARING OFFICER: Okay. I was
    20 writing on the other exhibits while you were
    21 talking.
    22 Can you tell me -- they are both
    23 corporate tax records. Can you tell me what date
    24 66 is and what date 67 is?
    25 MR. DAVIS: Yes. 66 would be the
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    1 1994 return filed in, I believe, October of '95.
    2 THE HEARING OFFICER: Okay.
    3 MR. DAVIS: 67 would be the 1995
    4 return filed in October of 1996.
    5 THE HEARING OFFICER: Okay.
    6 Mr. Northrup, is there any objection?
    7 MR. NORTHRUP: Yeah. I'm going to
    8 object to their admission at this time. There have
    9 been no -- the issue of ESG Watts' financial health
    10 certainly at this point in time has not been put
    11 into issue. Therefore, those documents are
    12 irrelevant at this point.
    13 THE HEARING OFFICER: Okay.
    14 Mr. Davis.
    15 MR. DAVIS: Thank you. The issue of
    16 relevancy is not dependent upon whether the defense
    17 has made its case or whether there will be a
    18 defense case.
    19 It's inherent within the documentary
    20 exhibit whether that exhibit is relevant. I can
    21 submit to this hearing officer in this proceeding
    22 that this hearing officer in the previous
    23 proceeding, 94-127, correctly allowed similar
    24 documents, that being, I think, the 1992 corporate
    25 tax return, that the Board properly looked at that
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    1 documentary exhibit in 94-127, and that the
    2 appellate court in its published opinion 224
    3 Illinois Ap 3rd 43, close, 282, Illinois Ap 3rd 43,
    4 correctly and extensively addressed the information
    5 contained in that document.
    6 We have had some pre-hearing efforts by
    7 the respondent to exclude that information by
    8 protective order. This hearing officer correctly
    9 ruled on that.
    10 We are tendering it for admission now,
    11 and we will tender it later if -- if necessary as
    12 far as Mr. Ehlers (phonetic spelling) is
    13 testifying. But we expect that he will talk about
    14 the things that the interrogatory answer indicated
    15 he would talk about. And is - that is directly
    16 going to put financial status at issue. So it's a
    17 good faith effort to complete our presentation at
    18 this time.
    19 THE HEARING OFFICER: Okay.
    20 Mr. Northrup, do you have anything further?
    21 MR. NORTHRUP: Yeah. A couple of
    22 things. In the 127 case, the tax returns were put
    23 in issue primarily by Watts because his theory in
    24 that case was that there were cash flow problems,
    25 and he could not comply with the -- those fee
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    1 payments. So we put the issue at issue in that
    2 case.
    3 In this case, there is going to be, as
    4 far as I can see right now, no issue of Watts'
    5 inability to comply with any of the allegations in
    6 this case, based upon an inability to -- or a
    7 financial inability to comply.
    8 I understand that obviously if I put
    9 Mr. Ehlers in the chair, this issue may resurface
    10 again, depending on what I ask him, and what his
    11 responses are. But at this time, that issue is not
    12 before the Board. It's not my intention to put
    13 that issue before the Board.
    14 MR. DAVIS: I've only attempted to
    15 address the objection as articulated. I would
    16 suggest however that under 42-H, we have some
    17 criteria to look to. We have also touched on
    18 economic benefits. These documents are relevant to
    19 that.
    20 There is a larger issue on simply the
    21 delay of compliance, regardless of whether or not
    22 an economic benefit does occur. And that is the
    23 due diligence aspect.
    24 These documents will show that there is
    25 money there to be spent. I believe we have already
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    1 established in our case in chief that the leachate
    2 management plan has not been formally applied for
    3 or approved. The storm management plan has not
    4 been applied for or approved. The assessment
    5 monitoring program that was permitted has not been
    6 implemented.
    7 We merely attempted to show
    8 simplistically what must be done. And now we are
    9 trying to show that Watts could afford to do it.
    10 THE HEARING OFFICER: Okay.
    11 MR. NORTHRUP: That was an issue for
    12 them in their case in chief. They could have named
    13 Jerry Ehlers as a witness. They did not.
    14 THE HEARING OFFICER: Okay. I
    15 believe that this information is relevant to the
    16 42-H factors, and I am going to admit the corporate
    17 tax returns based on that.
    18 MR. DAVIS: We can tender those.
    19 THE HEARING OFFICER: I've added
    20 them to the list. We have a couple of pages that
    21 we needed -- or one page we needed. We can talk
    22 about that at the end and get a date for all of
    23 that.
    24 Do the People rest at this time?
    25 MS. SYMONS-JACKSON: The People rest
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    1 at this time.
    2 THE HEARING OFFICER: Okay. Let's
    3 go off the record.
    4 (Off-the-record discussion held.)
    5 (Lunch recess taken at 1:11 p.m.)
    6 (Proceedings resumed at 2:03 p.m.)
    7 THE HEARING OFFICER: Mr. Northrup,
    8 please call your first witness.
    9 MR. NORTHRUP: Call Mark Mehall.
    10 MARK MEHALL,
    11 called as a witness, after having been first duly
    12 sworn, was examined and testified as follows:
    13 DIRECT EXAMINATION
    14 BY MR. NORTHRUP:
    15 Q. State your full name for the record,
    16 please.
    17 A. Mark David Mehall, M-E-H-A-L-L.
    18 Q. And what do you do for a living?
    19 A. I'm the solid waste coordinator of the
    20 Rock Island County Waste Management Agency.
    21 Q. Now, what exactly are your duties or
    22 responsibilities in that position?
    23 A. Well, basically I head the Agency. I'm
    24 the director on down. We are a planning and
    25 implementation Agency for a number of governments
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    1 in Rock Island County.
    2 Q. Anything else?
    3 A. As I said, we are a municipal action
    4 agency under Illinois law. We have 13 member
    5 governments. The Agency was formed in 1992 in
    6 order to undertake solid waste management efforts.
    7 It has been seated the planning and authority to
    8 implement ann manage the solid waste management
    9 plan by Rock Island County. So we are the solid
    10 waste management authority for Rock Island County.
    11 Q. What kind of planning do you do?
    12 A. Well, first of all, we keep and update
    13 the solid waste management plan as mandated in the
    14 Environmental Protection Act.
    15 Q. And do you supervise any employees?
    16 A. No, I do not.
    17 Q. How is your organization funded?
    18 A. We are funded through the solid waste fee
    19 provided by the three solid waste disposal
    20 facilities. Solid waste disposal facilities in
    21 Rock Island County.
    22 Q. Please provide a brief description of
    23 your educational background.
    24 A. Yes. I have a bachelors of science from
    25 Central Michigan University and a master of public
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    1 administration from Central Michigan University.
    2 The bachelors was obtained in 1983, and the master
    3 was obtained in 1985.
    4 Q. Do you from time to time attend seminars
    5 or workshops related to your work?
    6 A. Yes, I do.
    7 Q. When was the last one of those you went
    8 to?
    9 A. The Illinois County Solid Waste
    10 Management Association annual conference, October
    11 10th and 11th, 1996.
    12 Q. Now, are you familiar with the ESG Watts
    13 Taylor Ridge landfill?
    14 A. Yes, I am.
    15 Q. How are you familiar with that?
    16 A. It is one of the three landfills which
    17 pay the solid waste fee which funds our Agency.
    18 I'm also familiar with it as, again, one of the
    19 three solid waste management facilities in Rock
    20 Island County, which we monitor in relation to the
    21 solid waste management plan.
    22 Q. Okay. Now, you collect a fee from these
    23 facilities?
    24 A. Correct.
    25 Q. What is that fee based on?
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    1 A. It's based on cubic yards or tonnage as
    2 allowed by Illinois state statute.
    3 Q. Do you know what percentage of your
    4 budget is attributable to the Taylor Ridge
    5 landfill?
    6 A. Yes. Of the revenue received by us on an
    7 annual basis, it makes -- it's approximately 50
    8 percent of the total revenue.
    9 Q. Have you ever visited the Taylor Ridge
    10 landfill?
    11 A. Yes, I have.
    12 Q. On how many occasions?
    13 A. Officially twice.
    14 Q. How about unofficially?
    15 A. As official site visits, twice. I was
    16 adjacent to the landfill on one occasion, which I
    17 could see landfill operations from an adjoining
    18 property. That was when I paid a visit to
    19 Mr. Whitley's property.
    20 Q. Okay. You are familiar with Joe Whitley?
    21 A. Correct.
    22 Q. And where is his property in relation to
    23 the landfill?
    24 A. It is immediately adjacent to it on the
    25 southwest side of the landfill.
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    1 Q. And you indicated you visited his
    2 property?
    3 A. Yes.
    4 Q. When was that, if you can recall?
    5 A. March 21st, 1995.
    6 Q. What was the purpose of your visit?
    7 A. The purpose of my visit was responding to
    8 a concern of a resident of Rock Island County.
    9 Q. What did he say those concerns were?
    10 Well, I assume Joe Whitley is that citizen.
    11 A. Yes. Mr. Whitley. His concerns were
    12 basically the effect was having on his property.
    13 Q. And did he say what those effects were?
    14 A. Basically deleterious effects on his pond
    15 and the immediately adjacent area.
    16 Q. Did he mention any other effects?
    17 A. That's -- no. Of the reason to go out
    18 there, no.
    19 Q. Did -- or how long were you at his
    20 property?
    21 A. Approximately an hour-and-a-half.
    22 Q. What were the weather conditions on that
    23 day?
    24 A. It was a warm -- warmer spring like day.
    25 Warm, early spring day. Sunny.
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    1 Q. Did you smell any odors while you were
    2 there?
    3 A. Not that I can recall.
    4 Q. Did you observe any litter on
    5 Mr. Whitley's property?
    6 A. Not -- not that I can recall.
    7 Q. Did Mr. Whitley tell you that he thought
    8 Jim Watts had a vendetta against him?
    9 A. He did mention that he believed as a
    10 result of both the landfill operations and
    11 countersuit that Mr. Watts had filed against him
    12 that it had a negative effect on his person, both
    13 reputation and healthwise.
    14 Q. Did he use the term vendetta?
    15 A. I do not recall him using that term.
    16 Q. Did Mr. Whitley indicate to you that he
    17 was a member of a neighborhood association?
    18 A. He did -- yes, he did indicate that he
    19 had been a part of an effort to oppose Watts.
    20 Q. Now, are you aware of the relief that the
    21 attorney general's office is seeking in this
    22 matter?
    23 A. Yes, I am.
    24 Q. And what is that?
    25 A. The relief is revocation of the operating
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    1 permit for ESG Watts Taylor Ridge landfill.
    2 Q. Do you have any opinion as to what the
    3 effect the revocation of Watts' operating permits
    4 would have on Rock Island County or the community?
    5 A. From what I can best gauge from our
    6 planning efforts over the last couple of years, it
    7 would, one -- do one of two things. One, either
    8 increase the amount of waste going to the two
    9 remaining landfills in Rock Island County, and thus
    10 bring into question -- shorten the life expectancy
    11 ever those. Or two, it would cause -- it would be
    12 cause for a new facility, either a transfer station
    13 or a new landfill, to be sited somewhere in Rock
    14 Island County.
    15 Q. In your opinion, would it have any impact
    16 on competition in the waste industry?
    17 A. I think it would have some impact in
    18 lessening competition, but I cannot say that it
    19 would be an extremely great impact at the present
    20 moment. Mainly due to the consolidation that's
    21 already going on in the waste industry.
    22 Particularly involving the Allied Corporation.
    23 Q. The what?
    24 A. The Allied Corporation. Allied Waste
    25 Systems, who owns the upper Rock Island County
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    1 landfill.
    2 MR. NORTHRUP: That's all the
    3 questions I have.
    4 THE HEARING OFFICER: Okay.
    5 CROSS-EXAMINATION
    6 BY MR. DAVIS:
    7 Q. Mr. Mehall, to your knowledge, based upon
    8 your studies and reports and planning efforts, does
    9 Rock Island County receive waste from haulers
    10 coming from Iowa?
    11 A. Correct.
    12 Q. Is this a significant amount of the waste
    13 load?
    14 A. Yes, it is. It is approximately 45 to 50
    15 percent of the total waste load in all three
    16 landfills.
    17 Q. And do you know whether the hauling
    18 companies owned by Watts Trucking Service would
    19 bring some of the waste in from Iowa?
    20 A. I believe they do, yes. Specifically,
    21 the Watts' Muscatine County and Scott County
    22 operations come almost exclusively to the Watts
    23 landfill.
    24 Q. Would you agree, sir, that one of the
    25 possible impacts of the closure of Taylor Ridge
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    1 would be a decrease in the waste importation from
    2 Iowa?
    3 A. I really cannot say, because of the
    4 unique situation that we are in vis-a-vis the Iowa
    5 counties, as Muscatine right now doesn't have a
    6 landfill, and Scott County is basically closed to
    7 their member governments, and doesn't do a lot of
    8 commercial business. Chances are a lot of that
    9 waste would still come into Rock Island County. So
    10 I really can't say that there would be any sort of
    11 significant impact at the beginning at least.
    12 Q. On the issue of tipping fees and the
    13 budgetary concerns of your governmental agency,
    14 would you agree that if the waste going to the two
    15 other landfills would, in fact, increase, which
    16 does seem reasonable --
    17 A. Uh-huh.
    18 Q. -- that this would offset any tipping
    19 fees impact or partially offset any tipping fee
    20 impact on your agency?
    21 A. From what I can determine, it would
    22 either partly or significantly offset it. There
    23 were -- as we would only suffer a slight decrease,
    24 if any. I believe that most of the waste would
    25 come -- that's coming into Rock Island County would
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    1 continue to come into our county. And like I said
    2 before, the reduction would only be slight.
    3 MR. DAVIS: Thank you, sir.
    4 MR. NORTHRUP: Just one
    5 clarification.
    6 REDIRECT EXAMINATION
    7 BY MR. NORTHRUP:
    8 Q. Muscatine and Scott County, those are
    9 Iowa counties?
    10 A. Correct.
    11 MR. NORTHRUP: I don't have anything
    12 else.
    13 THE HEARING OFFICER: Anything else?
    14 Can this witness be excused? Okay. Thank you.
    15 THE HEARING OFFICER: Call your next
    16 witness.
    17 MR. NORTHRUP: Jerry Eilers.
    18 GERALD EILERS,
    19 called as a witness, after having been first duly
    20 sworn, was examined and testified as follows:
    21 DIRECT EXAMINATION
    22 BY MR. NORTHRUP:
    23 Q. State your name for the record?
    24 A. Gerald Eilers, E-I-L-E-R-S.
    25 Q. And what do you do for a living,
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    1 Mr. Eilers?
    2 A. I'm employed with Watts Trucking Service
    3 Company.
    4 Q. Do you hold any positions with ESG Watts?
    5 A. Yes, I do. I'm a vice president of the
    6 company.
    7 Q. What do you do for ESG Watts?
    8 A. I'm in charge of accounting, personnel,
    9 safety, as well as many other -- many other duties.
    10 Q. I guess I should say what is ESG Watts?
    11 A. ESG Watts is a corporation that owns
    12 land -- owns and operates landfills and is a
    13 subsidiary of Watts Trucking Services.
    14 Q. How many landfills does ESG Watts own and
    15 operate?
    16 A. It owns the Taylor Ridge landfill, which
    17 it operates. It owns the Sangamon Valley landfill
    18 in Springfield, which at this time is not accepting
    19 waste. And it owns the landfill north of Viola,
    20 which is closed.
    21 Q. Can you give me a little bit about your
    22 educational background?
    23 A. I have a BA degree in accounting from
    24 Norris College in Dubuque in 1965. I worked in
    25 public accounting from 1965 until 1976. At that
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    1 time, I took a job with the Watts companies as
    2 controller.
    3 Q. Okay. When you said you worked in public
    4 accounting, what does that -- can you give us a
    5 little more description?
    6 A. I worked for a CPA firm. I was an audit
    7 manager with Peat Marwick Mitchell. At the time
    8 that I left their employ, I was in charge of
    9 auditing various companies.
    10 Q. Are you familiar -- if I use the term
    11 solid waste fee, would you know what I was
    12 referring to?
    13 A. Yes.
    14 Q. Okay. Explain to me what a solid waste
    15 fee is?
    16 A. Solid waste fee is a fee that landfills
    17 are required to remit to the state, in some
    18 instances to local government, based on yards or
    19 tonnage coming into the landfill.
    20 Q. Okay. And assuming ESG pays these
    21 fees --
    22 A. Yes.
    23 Q. -- who do they pay them to?
    24 A. They pay them to the state of Illinois
    25 and to the Rock Island County Solid Waste Agency.
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    1 Q. Do you know what the last payment was to
    2 the state of Illinois?
    3 A. I don't know the specific amount. But it
    4 was approximately $65,000.
    5 Q. How about over the last year?
    6 A. Total fees would be in the range of
    7 $240,000 a year.
    8 Q. Okay. And then how about Rock Island
    9 County, what was the last fee paid to them?
    10 A. Approximately 25,000.
    11 Q. And over the last year?
    12 A. I think it runs about $100,000 a year.
    13 Q. Are you current with fee payments to the
    14 state of Illinois?
    15 A. Yes.
    16 Q. Have you been current with fee payments
    17 to the state of Illinois since the Board -- let me
    18 strike that.
    19 Are you familiar with a Pollution Control
    20 Board opinion issued in a matter 94-127?
    21 A. That number doesn't really mean anything
    22 to me. Relating to what?
    23 Q. Solid waste fee payments?
    24 A. I think so.
    25 Q. Okay. Have -- are you -- have you -- are
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    1 you current -- have you been current with all
    2 payments since the order was issued in that case?
    3 A. Yes, we have.
    4 Q. Now, are you current with your payments
    5 to Rock Island County?
    6 A. Yes.
    7 Q. Do you know what relief the attorney
    8 general is seeking in this case?
    9 A. Yes.
    10 Q. And what is that?
    11 A. Revocation of the operating permit for
    12 the Taylor Ridge landfill.
    13 Q. Do you have any opinion as to what impact
    14 the closure of the Taylor Ridge landfill would have
    15 on the Rock Island community?
    16 A. Yes.
    17 Q. Okay. What is that opinion?
    18 A. Well, the first impact that it would have
    19 is that it would cause a reduction in the
    20 production of goods and services for the Quad City
    21 community.
    22 I made some calculations based on the
    23 United States Department of Commerce information
    24 that is used to calculate what business is coming
    25 into the community or going out of communities,
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    1 contributing to the community in the form of
    2 economic impact of dollars, et cetera.
    3 And based on those calculations, ESG has
    4 had annual expenditures in excess of 2.2 million
    5 dollars over the last three years. And based on
    6 those calculations, I determined that there would
    7 be a reduction in the production of goods and
    8 services in the community of approximately 5.6
    9 million dollars, a reduction in household earnings
    10 of 1.9 million dollars, and reduction in jobs of
    11 183.
    12 Q. Now, that reduction in jobs? Does ESG
    13 employ 183?
    14 A. No, we do not.
    15 Q. Where does that figure come from?
    16 A. That's a multiplying effect of dollars
    17 going through the community.
    18 Q. Any other impacts?
    19 A. Yes, there is. There will be an impact
    20 on the EPA fees, the solid waste fees that are
    21 collected by the state of Illinois and the Rock
    22 Island County Solid Waste Agency.
    23 Q. Okay. What would that impact be?
    24 A. A substantial portion of the garbage that
    25 comes into our landfill comes from our hauling
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    1 company. Our hauling company, excuse me, is the
    2 largest hauling company in Davenport and
    3 Bettendorf, and also in Muscatine, Iowa. We haul
    4 all of that refuse back to the Rock Island County
    5 landfill or to the Taylor Ridge landfill. In
    6 addition we haul waste from Galesburg, Monmouth and
    7 many other smaller cities south of Rock Island
    8 County into the Rock Island County landfill.
    9 Should the landfill be closed, we will be
    10 looking at disposing of garbage at the nearest
    11 point to where we collect our garbage. And the
    12 garbage collected in Iowa will probably end up
    13 going to the Scott County landfill, and the garbage
    14 in Muscatine would go to the transfer station which
    15 ends up in the city of Muscatine's landfill, and
    16 the refuse collected south of Rock Island County
    17 would go into local landfills in those areas. That
    18 will have a substantial impact on the amount of
    19 fees that are paid both to the county and to the
    20 state.
    21 Q. Okay. Any other impacts?
    22 A. Yes. The closing -- closing of one of
    23 the three landfills in the county will reduce
    24 competition by a third. And when competition is
    25 reduced, typically rates are increased. An example
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    1 of that is in Springfield where the Sangamon Valley
    2 closed in June of '94.
    3 Since that time, rates have gone up 26
    4 percent, and I would see a substantial increase
    5 coming here, too, in the future.
    6 Q. Any other impacts?
    7 A. I think those are the main ones that I
    8 identified.
    9 Q. Now, it has been -- or the issue has
    10 arisen that ESG has failed to meet a financial
    11 assurance funding requirement that was imposed in I
    12 believe it was the gas management application.
    13 Are you aware of that?
    14 A. Yes, I am.
    15 Q. Okay. Now, has Watts obtained that
    16 financial assurance?
    17 A. Not at this point in time.
    18 Q. Have you taken any steps to obtain that
    19 financial assurance?
    20 A. Yes, we have.
    21 Q. Okay. Describe for me those steps.
    22 A. ESG Watts entered into a contract with
    23 Resource Technology Corporation in early 1995 to
    24 set up these gas energy plants. And part of that
    25 contract, we knew at the time there was going to be
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    1 an increase in the financial assurance. And part
    2 of the responsibility that Resource Technology has
    3 will be to fund the additional financial assurance
    4 that's going to be -- that is required as a result
    5 of that plan.
    6 And so in 1995, we started having
    7 discussions with a number of insurance brokers and
    8 insurance agencies, because insurance companies
    9 were starting to get interested in providing
    10 financial assurance. And at that time, they were
    11 looking at doing it with surety bonds, which are
    12 not necessarily the easiest to get either. One of
    13 the companies that we talked to was Lawly Service
    14 out of Buffalo New York.
    15 They indicated that they eventually were
    16 going to try to get an insurance company to write
    17 an insurance policy to cover financial assurance.
    18 Just within the last 30 days, they
    19 indicated they were successful in putting that
    20 program together in California. And they
    21 anticipate they would be able to do this throughout
    22 the state.
    23 And that's the approach that we are
    24 working directly with Resource Technology to at the
    25 time accomplish as soon as possible.
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    1 MS. SYMONS-JACKSON: I want to make
    2 an objection to a portion of the answer given by
    3 Mr. Eilers as to anybody at the name of this
    4 business in Buffalo, New York might have said.
    5 They are certainly not here, and I believe it is
    6 hearsay.
    7 THE HEARING OFFICER: Okay.
    8 Mr. Northrup.
    9 MR. NORTHRUP: I don't -- I don't
    10 think it's hearsay. It's not going to the truth of
    11 what those people may have said. But it's rather
    12 just to identify how Watts has reacted and what
    13 actions it has taken in response to those things.
    14 THE HEARING OFFICER: Okay. I'm
    15 going to allow it.
    16 MR. NORTHRUP: Let me go off the
    17 record too.
    18 THE HEARING OFFICER: Okay.
    19 (Off-the-record discussion held.)
    20 THE HEARING OFFICER: Back on the
    21 record.
    22 BY MR. NORTHRUP:
    23 Q. When did -- maybe I just missed this.
    24 You said these discussions began with brokers in
    25 '95?
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    1 A. Yes.
    2 Q. Do you recall when?
    3 A. The earliest date I can remember is, you
    4 know, January 1st of '95. But we had many
    5 telephone conversations over the long period of
    6 time.
    7 Q. Okay. Which brokers, insurance agents?
    8 How many did you talk to?
    9 A. I think we have talked to at least three.
    10 Q. And do you remember their names?
    11 A. Two of them, I do. Lawly, I already
    12 mentioned. The other one was Evergreen Indemnity,
    13 which I think the agency on that was Huffman
    14 (phonetic spelling). Huffman Group.
    15 I think there was one other. I can't
    16 remember the name.
    17 Q. Are you currently -- strike that.
    18 Are you actively seeking financial
    19 assurance as of today's date?
    20 A. Yes, we are. The Lawly Group has within
    21 the last 30 days submitted a formal application to
    22 Zurich Insurance Company.
    23 Q. And what is that application? What is
    24 that intended to do? What's the purpose of the
    25 application?
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    1 A. The purpose of the application is to
    2 provide Zurich with the necessary information to
    3 make a determination as to whether they will issue
    4 an insurance policy for the amount of the financial
    5 assurance required on the Taylor Ridge landfill.
    6 Q. Okay. And if Zurich agrees to do that,
    7 what steps would follow after that?
    8 A. Illinois regulations do include insurance
    9 as a vehicle that can be used. My understanding as
    10 to what will happen is a proposed insurance policy
    11 will have to be submitted to the state agency. The
    12 state agency will review that insurance policy to
    13 determine its adequacy to meet their requirements.
    14 And if it's approved, then it's a matter
    15 of doing the paperwork. Put it together.
    16 Q. In your position at ESG Watts, are you in
    17 a position to know what ESG's cost of capital is?
    18 A. I'm in a position to know approximately
    19 what that cost would be.
    20 Q. Okay. I guess explain to me what cost of
    21 capital means to you.
    22 A. The cost of borrowing money.
    23 Q. And what is that cost of capital for ESG
    24 Watts?
    25 A. Well, my estimate of the cost of capital
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    1 would be -- right now, the prime interest rate is
    2 8-1/4. And so, you know, my estimate would be
    3 probably two to three points above that.
    4 Conservative number would be 12 percent at the
    5 most.
    6 Q. You are familiar with financial -- the
    7 state's financial assurance requirements?
    8 A. Yes.
    9 Q. Do you know that Watts needs to set aside
    10 a certain amount of money for that?
    11 A. Yes.
    12 Q. Has Watts currently -- does Watts
    13 currently have any such money set aside?
    14 A. Yes.
    15 Q. How about specifically for the Taylor
    16 Ridge landfill?
    17 A. Yes.
    18 Q. Do you know what amount that would be?
    19 A. I don't recall a specific number, but I
    20 think it's somewhere in the neighborhood of
    21 440,000. Somewhere in there.
    22 Q. Okay. Where is that money?
    23 A. It's in a trust fund at Rock Island Bank
    24 and Trust.
    25 Q. Is that an interest bearing account?
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    1 A. Yes.
    2 Q. What kind of -- well, what kind of
    3 interest does that account earn?
    4 A. The fund is invested in U.S. treasury
    5 obligations, and the rate of interest on those
    6 range anywhere from 5 percent to 7-3/4 percent.
    7 (Proceedings interruption.)
    8 (Recess taken.)
    9 MR. NORTHRUP: Those are all the
    10 questions I have.
    11 THE HEARING OFFICER: Oh, okay.
    12 CROSS-EXAMINATION
    13 BY MS. SYMONS-JACKSON:
    14 Q. Mr. Eilers, first of all, you began your
    15 testimony talking about solid waste fees. Do you
    16 recall that?
    17 A. Yes.
    18 Q. Okay. And you indicated that your solid
    19 waste fee payments are currently up-to-date with
    20 the state and the county. Correct?
    21 A. Correct.
    22 Q. Have there been occasions in the past
    23 when, in fact, those solid waste fees have not been
    24 paid?
    25 A. There have been occasions when they were
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    1 paid late prior to '95.
    2 Q. Have there been occasions, sir, when
    3 those solid waste fees were paid by checks that
    4 have bounced or been returned by the bank with
    5 insufficient funds?
    6 A. I think that happened back in '92, '93,
    7 maybe '94.
    8 Q. I want to talk a little bit more about
    9 these conclusions that you say you have reached
    10 regarding the supposed impact on the Rock Island
    11 area as a result of the closure of this landfill.
    12 First of all, in the solid waste landfill
    13 capacity report, do you agree that this landfill is
    14 anticipated to close within the next three years
    15 anyway?
    16 A. I don't know what the length of time is.
    17 Three to five years, it's a relatively short number
    18 of years though.
    19 Q. If that's the amount of time that was
    20 included in solid waste capacity report prepared by
    21 one of Watts own employees, you wouldn't disagree
    22 with that amount of time, would you?
    23 A. No.
    24 Q. Mr. Eilers, I believe you were present in
    25 the room during the direct examination and
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    1 cross-examination of Mr. Mark Mehall from the Rock
    2 Island County Solid Waste, I guess, Management
    3 Office.
    4 A. Yes.
    5 Q. How, sir, can you justify your opinion
    6 with regard to the overall reduction in solid waste
    7 fees that would be paid to the county or to the
    8 state as a result of the closure of this landfill
    9 when Mr. Mark Mehall has stated that he doesn't
    10 believes their would be a significant reduction in
    11 those fees?
    12 A. He doesn't understand the total
    13 situation. The hauler is the company that makes
    14 the decision as to where the garbage goes. The
    15 solid Rock Island County Solid Waste Agency does
    16 not dictate to the haulers where to take their
    17 garbage.
    18 Q. Can you explain for me again how you --
    19 how you came about the conclusions that you reached
    20 regarding the effect closure of the landfill would
    21 have on the community, on the income of households,
    22 and on the number of jobs that you estimate if the
    23 landfill was closed?
    24 A. Everybody that reads the paper and reads
    25 about new companies that are going to come into
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    1 town reads about the impact that -- the economic
    2 impact it's going to have on the community. It's
    3 common sense when a new business comes into town,
    4 it's going to spend X dollars per year, going to
    5 ever a ripple effect through the economy, to help
    6 the economy.
    7 By the same token, if you take the money
    8 out, the same thing is going to happen, just in
    9 reverse.
    10 Q. Now, if the landfill closed, one of the
    11 things Mr. Mark Mehall testified to as a possible
    12 result would be the development siting and
    13 permitting for another landfill in Rock Island
    14 County.
    15 If that, in fact, were to happen, how
    16 would that affect your opinions regarding the
    17 effect on the Rock Island community if the landfill
    18 were to close?
    19 A. I don't know.
    20 Q. You indicated with regard to the
    21 financial assurance obligations that the landfill
    22 currently has with the state that you had been in
    23 discussions with various brokers or, I guess, banks
    24 since 1995. Is that correct?
    25 A. Yes.
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    1 Q. Do you remember when in 1995 those
    2 discussions began?
    3 A. The earliest we began talking to these
    4 people was in, like, January, February of '95.
    5 Q. And you still do not have adequately
    6 funded financial assurance at this point in time;
    7 is that correct?
    8 A. For the Taylor Ridge site?
    9 Q. Yes.
    10 A. No, we do not.
    11 Q. Isn't it true, Mr. Eilers, that you've
    12 had a difficult time getting financing for your
    13 financial assurance trust fund?
    14 A. I don't know what you mean by having a
    15 difficult time.
    16 Q. You've been in discussions since early
    17 1995 with various facilities, and you still don't
    18 have financial assurance today.
    19 A. Reason we started discussions in '95 was
    20 we knew the gas plant was going to be coming
    21 on-line and cause a substantial bump in the amount
    22 of financial assurance required. The closure cost
    23 estimate that reflected that was approved in
    24 September of '96.
    25 And so, I mean, we started in advance.
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    1 And the vehicles that it -- the insurance company
    2 had looked like they were not going to work for us,
    3 and we had had discussions -- we have had calls
    4 from -- from a number of insurance companies that
    5 are getting interested in this market. And it all
    6 takes time to try and put that stuff together.
    7 Q. Have you in your discussions with
    8 facilities since 1995 ever inquired into obtaining
    9 a loan for the funding of the financial assurance
    10 document or financial assurance fund?
    11 A. No, I did not.
    12 Q. Have you, since becoming aware of the
    13 anticipated increase in your financial assurance
    14 obligations -- when I say you, I mean ESG Watts,
    15 Incorporated.
    16 Has ESG Watts, Incorporated made any
    17 efforts to recoup the amount of money they have
    18 made in loans to stockholders? I believe it totals
    19 $370,000 over the past two years?
    20 MR. NORTHRUP: Objection. No
    21 foundation for that.
    22 MS. SYMONS-JACKSON: We have income
    23 tax returns that have been admitted into evidence,
    24 and the information is set forth in the documents.
    25 THE HEARING OFFICER: Mr. Northrup,
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    1 do you have anything?
    2 MR. NORTHRUP: No.
    3 THE HEARING OFFICER: Okay. I'm
    4 going to allow it.
    5 Can you repeat your question or rephrase
    6 it? Do you want it read back?
    7 MS. SYMONS-JACKSON: (Shakes head.)
    8 BY MS. SYMONS-JACKSON:
    9 Q. Mr. Eilers, I'm going to refer your
    10 attention to Peoples Exhibit No. 67. It has
    11 already been admitted into evidence.
    12 On the balance sheet -- this is the
    13 United States corporation income tax return for the
    14 year '95 for Watts Trucking Services, Inc., and
    15 it's subsidiaries.
    16 At the beginning of that tax year loans
    17 to stockholders, outstanding loans to stockholders,
    18 total $799,000. $799,691. Would you agree with
    19 that?
    20 A. Yes.
    21 Q. In looking at that document, can you tell
    22 me your -- what was the outstanding amount in loans
    23 to stockholders?
    24 A. $1,012,014.
    25 Q. Has there been any attempt to recoup the
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    1 amount of money loaned to stockholders --
    2 A. Yes.
    3 Q. -- by ESG Watts?
    4 A. Stockholder doesn't owe ESG Watts any
    5 money. There aren't any loans.
    6 Q. Watts Trucking?
    7 A. Watts Trucking, yes.
    8 Q. What attempts have been made?
    9 A. He's repaying that at about the rate of
    10 $80,000 a year.
    11 Q. And what interest rate is he charged?
    12 A. He's charged -- it varies each year. The
    13 interest rate is used out of the Internal Revenue
    14 Service Regulations, and I think it runs in the 8,
    15 9 percent range. 6 to 9 percent range. I don't
    16 know. It varies each year, depending upon the
    17 rates that the federal government publishes. We
    18 use the rate that was established by the IRS some
    19 years ago.
    20 Q. Which years actually were payments made
    21 by the stockholder back to Watts Trucking,
    22 Incorporated?
    23 A. He's been making payments back on that
    24 loan probably for the last five years. Five, six
    25 years.
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    1 Q. Now, you've been making payments back,
    2 but the loan has continued to be made to the
    3 stockholder; is that correct?
    4 A. I'm not aware of any loans that are
    5 actually made to the stockholder. You know, it's
    6 not like as if we decided to loan him a half
    7 million dollars or something or other. That's not
    8 done.
    9 Q. Well, the amount of money that's
    10 indicated in the column that reads loan to
    11 stockholders, that is -- has continued -- continued
    12 to increase, hasn't it?
    13 A. It goes up and down.
    14 MS. SYMONS-JACKSON: I don't have
    15 any other cross-examination.
    16 THE WITNESS: Okay.
    17 REDIRECT EXAMINATION
    18 BY MR. NORTHRUP:
    19 Q. I was a little confused with some of that
    20 testimony. You said these weren't loans?
    21 A. The -- they are recorded as loans. It's
    22 recorded as receivable from Jim. It's not a
    23 situation where he decides to borrow money from the
    24 company.
    25 Lots of times when you have family-owned
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    1 businesses of this nature, it's -- it's just one of
    2 those things that happens, that some personal
    3 things go through the books. And we charge those
    4 against his account.
    5 I can't remember in the last two years
    6 the time he came in said he wanted to borrow money
    7 from the company. That doesn't just happen that
    8 way.
    9 THE HEARING OFFICER: For the
    10 record, I think we all know who is being referred
    11 to, but we haven't made that clear for the record
    12 at all. When you are referring to the stockholder
    13 and Jim, who are you talking about?
    14 THE WITNESS: Jim Watts.
    15 THE HEARING OFFICER: Okay. And you
    16 also made a reference to Watts Trucking. Is that
    17 owned by Jim Watts?
    18 THE WITNESS: Jim Watts owns Watts
    19 Trucking Service, and Watts Trucking Service owns
    20 ESG Watts, yes.
    21 THE HEARING OFFICER: Okay. Thank
    22 you.
    23 BY MR. NORTHRUP:
    24 Q. Was there any time from when you began
    25 these discussions with insurance brokers for any
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    1 extended period of time where you stopped these
    2 discussions?
    3 A. Yes. We did, because we were -- the only
    4 vehicle that they had available were surety bonds,
    5 and surety bonds needed 100 percent collateral.
    6 And we just weren't in a position to just -- to
    7 secure those. And one of the companies indicated
    8 they thought eventually they would be able to get
    9 to a fully insured program. And so, you know, we
    10 were hoping that that would come to eventuality,
    11 and it has.
    12 MR. NORTHRUP: I don't have any
    13 further questions.
    14 THE HEARING OFFICER: Anything else?
    15 MS. SYMONS-JACKSON: No.
    16 THE HEARING OFFICER: Okay. Can we
    17 excuse this witness? Any reason to recall him?
    18 MR. DAVIS: Oh, no.
    19 THE HEARING OFFICER: Thank you.
    20 Please call your next witness.
    21 STEVE KEITH,
    22 called as a witness, after having been first duly
    23 sworn, was examined and testified as follows:
    24 DIRECT EXAMINATION
    25 BY MR. NORTHRUP:
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    1 Q. Why don't you identify yourself for the
    2 record, please.
    3 A. My name is Steven Montgomery Keith.
    4 Q. And where are you employed?
    5 A. I'm employed by the engineering firm of
    6 CH2MHill.
    7 Q. Where is that at?
    8 A. Our office is located in Milwaukee,
    9 Wisconsin.
    10 Q. Okay. How long have you been employed
    11 there?
    12 A. Been employed there about ten-and-a-half
    13 years.
    14 Q. Okay. And what do you do there?
    15 A. I'm an environmental engineer.
    16 Q. What does that entail? What kind of work
    17 do you do?
    18 A. Basically work involves engineering
    19 activities, planning, design, oversight of
    20 construction activities, permit assistance, things
    21 like that for solid and hazardous waste management
    22 activities for clients.
    23 Q. Why don't you tell me a little bit about
    24 your education background.
    25 A. I received a bachelors of science in
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    1 engineering from the University of Michigan in
    2 1980, and then a masters of science in
    3 environmental engineering from the University
    4 Illinois in 1986.
    5 Q. Have you continued your education in any
    6 way since 1986?
    7 A. Yes, I have. I've attended several short
    8 courses offered through the University of Wisconsin
    9 extension service.
    10 Q. What types of courses?
    11 A. Those would be courses related to the
    12 field of solid and hazardous waste management,
    13 including landfill design, sanitary landfill
    14 design, transfer station design, and materials
    15 appropriate facility design.
    16 Q. Have you written any scholarly articles?
    17 A. I've authored a couple of articles. Two
    18 were published in the Madison Waste Conference, and
    19 one published in the conference proceedings for
    20 hazardous waste conference in Washington D.C.
    21 Q. What were the subject matters of those
    22 articles?
    23 A. The subjects of the articles for the
    24 Madison Waste Conference were collection and
    25 treatment of landfill gas from several landfills in
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    1 Madison, Wisconsin area. And the article for the
    2 hazardous waste conference related to assessing
    3 uncertainty in groundwater monitoring.
    4 Q. You are familiar with ESG Watts?
    5 A. Yes.
    6 Q. How are you familiar with them?
    7 A. We were under agreement with them to
    8 provide engineering services to them.
    9 Q. Okay. Specifically what types of
    10 engineering services?
    11 A. Specifically to assist in their
    12 preparation of an application for a significant
    13 modification permit for the Taylor Ridge landfill
    14 site.
    15 Q. Have you ever been to the Taylor Ridge
    16 landfill?
    17 A. Yes, I have.
    18 Q. On how many occasions?
    19 A. I can't recall exactly. I think -- I
    20 think on three occasions.
    21 Q. Okay. Did you, in fact, prepare a
    22 sig-mod application?
    23 A. Yes, we did.
    24 Q. And when was that?
    25 A. That was prepared and submitted, I
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    1 believe, in 1994. The month, I can't recall. I
    2 think it was August of 1994.
    3 Q. And do you know what the Agency did that
    4 with that submittal?
    5 A. That submittal was initially determined
    6 to be administratively incomplete. We then filed a
    7 follow-up submittal to that several months later.
    8 And that one was determined to be administratively
    9 complete.
    10 Q. Okay. And what happened to that
    11 submittal?
    12 A. Let's see. Initially, the submittal did
    13 not undergo a technical review. My recollection
    14 was that it -- ESG Watts requested that -- that it
    15 did -- it would receive a technical review. And
    16 eventually it was given a technical review.
    17 Q. Was that application approved?
    18 A. No, it was not.
    19 Q. Okay. Do you know when it was denied?
    20 A. A denial letter was issued in February of
    21 1995, I believe.
    22 Q. Okay. Have you ever seen a copy of the
    23 denial letter?
    24 A. Yes, I have.
    25 Q. After that February of '95, did you or
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    1 CH2MHill perform any additional work for Watts with
    2 respect to the Taylor Ridge landfill?
    3 A. Yes, we did.
    4 Q. And what work was that?
    5 A. That would have included conferencing
    6 with people from ESG Watts to discuss the denial
    7 letter, discussing how we planned to approach,
    8 address the issues raised by the Illinois EPA. And
    9 then arranging for a meeting with the Illinois EPA
    10 to discuss those issues.
    11 After the meeting, we then prepared a
    12 scope of work for how we would plan to proceed from
    13 that point forward.
    14 Q. Okay. What exactly is the scope of work?
    15 A. Scope of work for that point forward
    16 would have been to address the specific issues or a
    17 number of the specific issues raised in the
    18 February denial letter.
    19 Q. Has CH2MHill submitted any kind of
    20 response to the February denial letter?
    21 A. Yes, we have.
    22 Q. And when was that sent in?
    23 A. That was submitted on October 18th, I
    24 believe.
    25 MR. NORTHRUP: I'm going to go ahead
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    1 and mark this as our first one. I've got a copy,
    2 if you guys want one. It's the October CH2MHill
    3 submittal.
    4 MS. SYMONS-JACKSON: Yeah. We would
    5 like a copy.
    6 MR. NORTHRUP: Ms. Hearing Officer,
    7 on the outside or on the inside?
    8 THE HEARING OFFICER: On the
    9 outside, please.
    10 BY MR. NORTHRUP:
    11 Q. Let me show you what I have just marked
    12 as Respondent's Exhibit 1. Can you identify that
    13 for me, please.
    14 A. Yes. This would be our responses to the
    15 notices -- response to the letter of denial letter
    16 of February 16th of 1995 for the Taylor Ridge
    17 landfill significant modification application.
    18 Q. Okay. And did you prepare that
    19 submittal?
    20 A. Yes.
    21 Q. What did you do with the submittal once
    22 it was prepared?
    23 A. We mailed four copies to the Illinois EPA
    24 and several copies to ESG Watts.
    25 MR. NORTHRUP: I'd go ahead and
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    1 offer this into evidence.
    2 THE HEARING OFFICER: Any objection?
    3 MS. SYMONS-JACKSON: Yes. This
    4 document was, first of all, not covered by our
    5 stipulation in the beginning, and we would object
    6 to the relevancy of this document, as it is not an
    7 approved permit. It's not a formal application for
    8 a significant modification.
    9 THE HEARING OFFICER: Okay.
    10 Mr. Northrup.
    11 MR. NORTHRUP: Well, I think it is.
    12 And I can explore that a little bit as to why it
    13 was submitted in this form. But it was also my
    14 understanding that this was stipulated to. I
    15 believe I've identified it as one of the
    16 applications that I would be relying on. I would
    17 have certainly provided it to the attorney
    18 general's office long before today in response to
    19 in response to their document -- request to
    20 produce.
    21 MS. SYMONS-JACKSON: Can we go off
    22 the record for a second?
    23 THE HEARING OFFICER: Yes.
    24 (Off-the-record discussion held.)
    25 THE HEARING OFFICER: Let's go back
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    1 on the record. I'm going to allow the document.
    2 If you -- we have had a discussion off the record.
    3 If you want to admit evidence that goes to what
    4 weight the Board should give this document, then
    5 you certainly are free to try and do that.
    6 MS. SYMONS-JACKSON: Yeah. One --
    7 one concern we have, and we would like to get an
    8 agreement from Mr. Northrup, this is not to be
    9 referred to as an application. It's misleading.
    10 And I believe -- I can look through this
    11 deposition, but I believe Mr. Keith admitted during
    12 his deposition that he agrees that this, in fact,
    13 is not an application for a significant
    14 modification.
    15 MR. NORTHRUP: I think that's fine.
    16 I mean, I don't have a problem with not referring
    17 to it as an application. We will see what
    18 Mr. Keith says about what the EPA told him and how
    19 the fact that they would accept this in this form
    20 as an application under the sig-mod, that they did
    21 not have to resubmit an entire new sig-mod.
    22 THE HEARING OFFICER: Okay. You are
    23 testifying.
    24 MR. NORTHRUP: I don't care.
    25 THE HEARING OFFICER: You are
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    1 testifying now. It sounds like you agree to not
    2 refer to it as an application. Please question
    3 your witness about it without calling it an
    4 application. I have it listed on the exhibit list
    5 as a submittal.
    6 MR. NORTHRUP: That's fine. I can
    7 refer to it as that.
    8 BY MR. NORTHRUP:
    9 Q. You indicated that you had had several
    10 telephone conversations leading up to a meeting
    11 with the IEPA.
    12 A. Correct.
    13 Q. Okay. When did that meeting occur?
    14 A. That meeting occurred in August of 1995.
    15 Q. Who was present or where was that meeting
    16 held?
    17 A. That meeting was held at the offices of
    18 the Bureau of Land in Springfield.
    19 Q. Okay. I assume you were present.
    20 A. Yes.
    21 Q. Who else was present, if you can recall?
    22 A. I recall as being present Tom Jones and
    23 also Steve Grothus from ESG Watts. Also present
    24 would have been Krishna Brahmamdam. I also believe
    25 present was Gweneth Thompson from the IEPA as well
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    1 as Joyce Mooney. I believe there may have been one
    2 to three other additional present from the Illinois
    3 EPA. Their names, I cannot recall.
    4 Q. What was the purpose of this meeting?
    5 A. The purpose was to discuss the issues
    6 raised by the Illinois EPA in their February denial
    7 letter. February of 1995 denial letter.
    8 Q. And were various issues discussed at that
    9 time?
    10 A. Yes.
    11 Q. What were some of those issues?
    12 A. Some of the issues included kind of
    13 specifically how we planned to address things such
    14 that effect our control plan.
    15 We reviewed the property survey. We were
    16 curious what deficiencies they had identified in
    17 that. We discussed the plan for groundwater
    18 modeling.
    19 The Agency was of the opinion that there
    20 was need to do -- need for some additional field
    21 sampling activities. We discussed how we would use
    22 that field data in our analysis of the groundwater
    23 impact assessment. Those were some of the issues.
    24 Q. Okay. But there were others?
    25 A. Yes. I believe so. We had -- in
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    1 preparation for the meeting, we had prepared a --
    2 two memorandums and mailed those to the Illinois
    3 EPA just kind of as preparatory for the meetings.
    4 My recollection is they did not wish to
    5 go through each of those one by one.
    6 Q. Points. You mean points of the denial
    7 points?
    8 A. Correct. So we tended to group the
    9 issues together into larger issues.
    10 Q. Was the issue of the form of the sig-mod
    11 remittal discussed?
    12 A. My recollection is that near the end of
    13 the meeting, the question was asked as to whether
    14 or not we needed to resubmit the application in its
    15 entirety. And the response that we received was
    16 that we only needed to resubmit the changed pages,
    17 the pages that were undergoing changes, if it was
    18 accompanied by a letter certifying as such.
    19 Q. Do you recall who made that statement?
    20 A. I do not recall.
    21 Q. Okay. And did you rely on that statement
    22 in making this October 18 resubmittal?
    23 A. Yes.
    24 Q. Did the February sig-mod denial letter
    25 contain denial points related to the classification
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    1 of groundwater at the site?
    2 A. Yes, it did.
    3 Q. Do you recall what that denial point was?
    4 A. I recall the denial point was something
    5 to the effect that until the state had received
    6 better documentation or demonstration that, the
    7 uppermost aquifer was not a Class I aquifer, then
    8 basically would default to a Class I aquifer. They
    9 would they would treat it as a Class I aquifer.
    10 Q. In the October 18th resubmittal, is there
    11 any material addressing that issue?
    12 A. Yes, there is. That is one of the
    13 attachments.
    14 Q. Okay. And what is concluded in that
    15 attachment?
    16 A. It's concluded that it should be
    17 classified as a Class II aquifer.
    18 Q. In the February '95 denial letter, were
    19 there issues relating to the performance of
    20 groundwater assessments?
    21 A. Yes. Are you referring to performing an
    22 assessment monitoring?
    23 Q. That's correct. That's correct.
    24 A. Yes. There was. I believe that was one
    25 of the points making reference to the need to
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    1 address that in some fashion.
    2 Q. Okay. What's the purpose of the
    3 groundwater assessment monitoring plan?
    4 A. The purpose is first to determine whether
    5 or not some apparent increases or significant --
    6 significant increases in the components that are
    7 being monitored in the monitoring, if there is --
    8 in fact, has been a statistically significant
    9 increase. And that's generally done through
    10 resampling of wells or sampling more frequently.
    11 If it is then confirmed that there has
    12 been a significant increase in concentrations of
    13 some compounds or contaminants of concern, then the
    14 plan would be to then embark on additional
    15 sampling, perhaps at locations other than existing
    16 ones, to help define -- better define the source of
    17 the increase and the nature and extent.
    18 Q. Does the October 18th resubmittal contain
    19 a proposal for groundwater monitoring assessment?
    20 A. Yes, it does.
    21 Q. If, in fact, there were groundwater
    22 contamination at the landfill, is that something
    23 that can be -- let me strike that.
    24 How would you address groundwater
    25 contamination just in general?
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    1 A. If the question is if it had been
    2 determined that there was a significant increase in
    3 some of the monitoring wells, then first we would
    4 need to determine -- attempt to determine what the
    5 source of that contamination increase was from.
    6 And then once that had been determined, then there
    7 would be a plan established to take measures that
    8 would mitigate any further spreading of
    9 contamination or release from the suspected source.
    10 Q. How would you mitigate the sporadic
    11 contamination?
    12 A. That could be done in a variety of
    13 methods. It would depend upon the defined -- the
    14 source that's been identified. But if -- for
    15 instance, if the source was from the landfill, then
    16 one approach would be to install leachate
    17 extraction wells. If the source was from outside
    18 the landfill, or if it had been migrated to a point
    19 where there was contamination outside the landfill
    20 that could not be addressed through leachate
    21 extraction, one could install groundwater
    22 extraction wells outside the landfill to collect
    23 the collect the contaminated water.
    24 Q. Is there any proposal in the October
    25 resubmittal to install leachate extraction wells?
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    1 A. There was some discussion of that point.
    2 Q. Okay. And what is that discussion?
    3 A. See, there is a -- in the -- in the
    4 application, there is a section that's referred to
    5 as the contingency plan. And in that section, it
    6 presents a hypothetical scenario by which a
    7 remedial action could be undertaken to address
    8 groundwater contamination at the site, if, in fact,
    9 that was determined to be a problem as resulting
    10 from a significant increase in the landfill being
    11 the source.
    12 Q. Have you performed -- outside of the --
    13 of this October resubmittal, have you prepared any
    14 other documents for Watts for the Taylor Ridge
    15 landfill?
    16 A. Yes. I believe we have.
    17 Q. And what documents would those be?
    18 A. I believe we had prepared a draft of the
    19 storm water management pollution prevention plan.
    20 Q. What types of things are in that plan?
    21 A. It discusses activities to be undertaken
    22 at the site to help reduce release of sediment from
    23 the site as well as other operational activity that
    24 could be undertaken to help reduce the potential
    25 for release of other contaminants into surface
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    1 water runoff.
    2 Q. And what are some of those other things?
    3 A. Aside from activities related to
    4 modification of the final cover and cap to
    5 reconstruct some of the ditches and downshoots.
    6 There would also be some discussion regarding how
    7 improvements or being aware of the potential for
    8 release of oil, gasoline, that type of thing from
    9 operating vehicles to help prevent any release of
    10 contaminants in, say, like petroleum products into
    11 surface water runoff, general containment.
    12 Q. Now, was -- this storm water prevention
    13 plan, is this part of the resubmittal?
    14 A. That pollution prevention plan in itself
    15 is not part of the submittal. There is a part of
    16 the plan, a storm water management plan.
    17 Q. There is a storm water management plan as
    18 part of the October resubmittal?
    19 A. Correct. That was a part of the original
    20 sig-mod submittal. And there have been some
    21 revisions to it.
    22 MR. NORTHRUP: Let me go ahead and
    23 mark this as Respondent's No. 2.
    24 BY MR. NORTHRUP:
    25 Q. Can you identify that for me, please.
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    1 A. Yes. This would be a draft version of
    2 the storm water pollution prevention plan we had
    3 prepared for the Taylor Ridge landfill.
    4 Q. When was that prepared?
    5 MS. SYMONS-JACKSON: Sorry,
    6 Charlie. Can I interrupt you for a second? Do you
    7 have a copy?
    8 MR. NORTHRUP: I think that's my
    9 only one.
    10 MS. SYMONS-JACKSON: It is my
    11 understanding that copies were going to be
    12 provided.
    13 MR. NORTHRUP: Yeah. And I thought
    14 I had made copies, and I was looking for it last,
    15 night and I couldn't find it. If you want to bear
    16 with me for ten minutes, I'll look again. Or feel
    17 free to take a look.
    18 MR. DAVIS: Go ahead.
    19 THE HEARING OFFICER: Let's go off
    20 the record for a second.
    21 (Off-the-record discussion held.)
    22 THE HEARING OFFICER: Go back on the
    23 record.
    24 BY MR. NORTHRUP:
    25 Q. I'm sorry. Can you identify Respondent's
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    1 Exhibit No. 2?
    2 A. It that question for me?
    3 Q. Yeah. I'm sorry. Sorry.
    4 A. Yes. This is a draft version of a storm
    5 water pollution prevention plan that we had
    6 prepared for the Taylor Ridge landfill site.
    7 Q. Have you conveyed a copy of that to ESG
    8 Watts?
    9 A. Yes. I believe we did. I can't recall
    10 the exact date. It would have been early this
    11 year.
    12 MR. NORTHRUP: I'd go ahead and
    13 offer that into evidence.
    14 THE HEARING OFFICER: Is there an
    15 objection?
    16 MS. SYMONS-JACKSON: Same objection
    17 as before to the sig-mod submittal. We haven't
    18 stipulated to the introduction of this document.
    19 Other than that, it's -- this is simply a draft
    20 document. The permit requires that a plan be
    21 submitted. I don't know if this is actually the
    22 plan or a draft.
    23 THE HEARING OFFICER: Okay.
    24 Mr. Northrup.
    25 MR. NORTHRUP: Well, I mean, it's
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    1 being offered. I've laid the proper foundation for
    2 it. The Watts people will talk about what they
    3 have used it for and that type of thing.
    4 THE HEARING OFFICER: I'm going to
    5 allow it. Your objection is really going to the
    6 weight that we need to give the document, and not
    7 to its admissability. I think it's relevant.
    8 MR. NORTHRUP: In case why I -- did
    9 I offer Respondent's No. 1 into evidence?
    10 THE HEARING OFFICER: Yes. It has
    11 been admitted. Let's go off the record.
    12 (Off-the-record discussion held.)
    13 (Recess taken.)
    14 THE HEARING OFFICER: Let's go back
    15 on the record.
    16 BY MR. NORTHRUP:
    17 Q. Let me ask you just a couple of
    18 clarifying questions with respect to Respondent's
    19 Exhibits 1 and 2. Now, the October resubmittal
    20 contains a storm water management plan.
    21 A. That's correct.
    22 Q. That is different than the storm water
    23 pollution prevention plan, which has been marked as
    24 Respondent's Exhibit 2?
    25 A. That's correct.
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    1 Q. Correct. Okay.
    2 MR. NORTHRUP: I don't have any
    3 further questions.
    4 THE HEARING OFFICER: Okay.
    5 CROSS-EXAMINATION
    6 BY MS. SYMONS-JACKSON:
    7 Q. Mr. Keith, do you recall when you
    8 completed the sig-mod submittal that was sent into
    9 the Agency on October 18, 1996?
    10 A. When it was completed? This document
    11 right here?
    12 Q. Uh-huh.
    13 A. Yes. That was completed on the 18th.
    14 Q. Okay. Was there some point prior to
    15 October 18 when you presented a complete package so
    16 to speak to ESG Watts to review?
    17 A. There was a point in time where we
    18 presented a draft version to ESG Watts for review.
    19 That was not fully complete. It was -- it was 80
    20 percent complete.
    21 Q. Would you agree that that draft review
    22 was made approximately one month prior to today?
    23 A. Yes. That's about right.
    24 Q. Now, you had some delays along the way in
    25 preparing this sig-mod submittal. Is that
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    1 accurate?
    2 A. Yes.
    3 Q. Mr. Keith, do you agree that at least
    4 three months could be -- of delay could be
    5 attributable to the failure of ESG Watts to make
    6 payments to CH2MHill for the work they were
    7 performing?
    8 A. I would say that there was perhaps some
    9 delay caused by it. As to whether or not three
    10 months is an accurate number, I think it's hard to
    11 say. But that's probably not far off.
    12 Q. Okay. And I believe you testified in
    13 your deposition, do you recall, that it was
    14 probably that -- it was as many as three months of
    15 delay?
    16 A. Yes. That's correct.
    17 Q. Okay. And Mr. Keith, the only deadline
    18 with regard to submitting this sig-mod submittal to
    19 the Agency was that it be into the Agency prior to
    20 this hearing. Isn't that correct?
    21 A. We had that as a goal to try.
    22 Q. Okay.
    23 A. Have it prepared by that point in time.
    24 MS. SYMONS-JACKSON: Those are the
    25 only questions I have.
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    1 THE HEARING OFFICER: Any redirect?
    2 MR. NORTHRUP: Yeah.
    3 REDIRECT EXAMINATION
    4 BY MR. NORTHRUP:
    5 Q. When did you begin working on the
    6 resubmittal?
    7 A. We began working on the resubmittal
    8 immediately following our August meeting with the
    9 Illinois EPA. Actually, we would have initiated
    10 work on it even prior to that. If we consider our
    11 assessment of how we might approach addressing the
    12 questions raised by the IEPA, then to some extent
    13 we would have started even prior to the August
    14 meeting in that regard.
    15 Q. I recall you indicated you had sent a
    16 couple -- were they memos or letters to the EPA
    17 prior to August?
    18 A. That's right.
    19 Q. Okay. And did those -- did you elicit
    20 some kind of response from the EPA with those?
    21 A. I don't think that we anticipated
    22 receiving a response from them prior to that time.
    23 But it was, I think, intended to just set the table
    24 so to speak prior to the meeting, giving them some
    25 idea about some thoughts that we had in terms of
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    1 how we plan to approach addressing their concerns.
    2 Q. Okay. How did you happen to settle on
    3 August for this meeting?
    4 A. I can't recall exactly. I think that we
    5 had made contact with the Illinois EPA prior to
    6 that. On what dates, I can't recall. But
    7 scheduling meetings in the summer is often a
    8 difficult task. I think we may have contacted the
    9 Illinois EPA, you know, some weeks prior to that
    10 exactly. How far in advance, I can't recall. But
    11 that meeting date was set with the Illinois EPA --
    12 Q. Okay.
    13 A. -- through discussions with them.
    14 Q. Now, between August of '95 and October of
    15 '96, that's about 14 months. Taking into
    16 consideration what you believe to be a three-month
    17 delay because of money problems, for lack of a
    18 better term, were there any other delays involved?
    19 A. Yes. Some delay could be attributed to
    20 the need to obtain some leachate samples from the
    21 landfill. The samples were needed to obtain data
    22 that would be input into the groundwater model that
    23 was used to perform the groundwater impact
    24 assessment or revised version of that.
    25 Q. Okay. Was any kind of permit needed
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    1 prior to or before you could take those samples?
    2 A. Yeah. I can't recall exactly. I believe
    3 that ESG Watts did need to submit some type of a
    4 request. I can't recall if it was, in fact, a
    5 permit application to have the wells installed.
    6 Q. Anything else that you can think of that
    7 would contribute to this nine-month period in which
    8 to develop the resubmittal?
    9 A. Yes. Some of the items that were
    10 addressed in the denial letter related to the need
    11 to collect more field data, that being including
    12 drilling, some soil borings, doing some probing for
    13 landfill gas. There might have been something
    14 else. But -- but some of it was based upon the
    15 need to collect some additional field data. Also
    16 included in there would have been getting some more
    17 information on the hydraulic conductivity of some
    18 of the soil layers surrounding the landfill. This
    19 would have been done using some slug tests.
    20 Q. Anything else?
    21 A. Nothing comes to mind right now.
    22 Q. This three-month delay for money
    23 problems, when did this occur? Is it one big chunk
    24 of three months, or is it a month here, a month
    25 there?
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    1 A. It would have been one chunk.
    2 Q. Okay. And do you recall when that was?
    3 A. That would have been probably spring to
    4 summer of this year. Summertime of this year.
    5 MR. NORTHRUP: I have no further
    6 questions.
    7 THE HEARING OFFICER: Anything
    8 else?
    9 MS. SYMONS-JACKSON: No.
    10 THE HEARING OFFICER: Okay. Can we
    11 excuse this witness?
    12 MR. NORTHRUP: Thanks.
    13 THE HEARING OFFICER: Okay. Thanks
    14 you. Please call your next witness.
    15 MR. NORTHRUP: Call Rob Fortelka.
    16 THE HEARING OFFICER: Okay. Please
    17 swear the witness.
    18 ROBERT FORTELKA,
    19 called as a witness, after having been first duly
    20 sworn, was examined and testified as follows:
    21 DIRECT EXAMINATION
    22 BY MR. NORTHRUP:
    23 Q. Go ahead and identify yourself for the
    24 report, please.
    25 A. Robert Marshall Fortelka.
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    1 Q. And where do you work?
    2 A. I work for Resource Technology
    3 Corporation, Chicago, Illinois.
    4 Q. What is Resource Technology Corporation?
    5 A. Resource Technology Corporation is a
    6 developer of gas-to-energy systems.
    7 Q. How long have you worked at RTC?
    8 A. Since the beginning of September 1996.
    9 Q. I guess I should say, if I use the term
    10 RTC, you understand that?
    11 A. Yes. RTC, Resource Technology
    12 Corporation.
    13 Q. What kind of responsibilities do you have
    14 at RTC?
    15 A. I'm a resident engineer, which means I
    16 have responsibility for the construction and
    17 operation of their gas to energy facilities.
    18 Q. How many projects are you currently
    19 working on?
    20 A. Over a dozen. I'm sorry. Yeah. Over a
    21 dozen.
    22 Q. Now, are they all over the country or
    23 just in the Midwest?
    24 A. Yeah. All over the country.
    25 Q. Can you explain a little bit about your
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    1 educational background?
    2 A. I'm a civil engineer by degree with an
    3 environmental emphasis from the University of
    4 Wisconsin, Platteville. Graduated in 1990.
    5 Q. Do you have any postgraduate work?
    6 A. No postgraudate work.
    7 Q. Since 1990, have you attended seminars or
    8 workshops with respect to the environmental field?
    9 A. Yes. I've attended numerous conferences
    10 and seminars with technical presentations presented
    11 at those.
    12 Q. Have you ever presented any of those?
    13 A. Myself? No.
    14 Q. What were some of the subject matters of
    15 those conferences and seminars?
    16 A. The last couple of years I've attended
    17 conferences specific to the landfill gas industry,
    18 Swana's (phonetic spelling) Landfill Gas
    19 Conference, two years in a row, '95, '94.
    20 Q. What did you do after you graduated from
    21 college?
    22 A. I went to work for Waste Management of
    23 North America in Oakbrook, Illinois as a staff
    24 engineer, where I was involved with the design and
    25 permitting of landfill and landfill-related
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    1 facilities.
    2 Q. When you say landfill-related facilities,
    3 what do you mean by that?
    4 A. Anything to do with the operation or
    5 general compliance at a landfill, gas systems,
    6 leachate collection systems, that type of thing.
    7 Q. Okay. How long were you at Waste
    8 Management?
    9 A. For three years.
    10 Q. Okay. What did you do after that?
    11 A. I went to work for Sexton Companies
    12 (phonetic spelling), which is a similar landfill
    13 owner/operator as Waste Management.
    14 Q. Were you involved with gas methane issues
    15 at Sexton?
    16 A. Yes. I was involved with not only the
    17 direction of design of gas systems, but also the
    18 operation of systems in place.
    19 Q. How many systems do you think did you
    20 design and how many did you operate?
    21 A. Four systems that I was involved with the
    22 operation of. The design and/or design
    23 modification of probably five or six.
    24 Q. Okay. Are you familiar with the Taylor
    25 Ridge landfill -- scratch that.
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    1 Are you familiar with ESG Watts?
    2 A. Yes.
    3 Q. Okay. How are you familiar with ESG
    4 Watts?
    5 A. I'm familiar with ESG Watts as a landfill
    6 owner/operator that RTC has contracted with with
    7 regard to the gas rights on their facilities.
    8 Q. Okay. Have you ever been to the Taylor
    9 Ridge landfill?
    10 A. Yes, I have.
    11 Q. How many times?
    12 A. I've been to the site three times since
    13 I've been with RTC.
    14 Q. What have you done on those site visits?
    15 A. I've toured the site. I've inspected the
    16 gas well construction progress. I've reviewed
    17 general site conditions. I've been involved in the
    18 location of -- future location of the RTC gas
    19 facility, gas processing facility.
    20 Q. Are you familiar with the gas management
    21 permit that the Agency has issued for the Taylor
    22 Ridge facility?
    23 A. I believe so.
    24 Q. And have you reviewed that?
    25 A. Yes.
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    1 Q. What does that permit permit Watts to do?
    2 A. That permit permits Watts to construct
    3 and operate a gas collection system, including an
    4 electrical generating facility.
    5 Q. Okay. When you talk about a gas
    6 collection system, what exactly -- and with
    7 reference to the Taylor Ridge site, what exactly do
    8 you mean by that?
    9 A. The permit encompasses approximately 88
    10 gas collection wells, a network of gas transmission
    11 piping and a gas processing facility and electrical
    12 generating facility.
    13 Q. Now, has that system been installed as of
    14 today's date?
    15 A. That system is partially installed. The
    16 gas collection wells are currently in place.
    17 Q. Anything else other than the wells?
    18 A. I don't believe so.
    19 Q. Okay. Do you know when installation of
    20 the wells began?
    21 A. I don't have the exact date. I'd have to
    22 say two to three months ago.
    23 Q. You were not there when the wells were
    24 started?
    25 A. Correct.
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    1 Q. What remains to be put in place?
    2 A. The gas collection or gas transmission
    3 piping, the headers and laterals associated with
    4 that piping. And then the complete gas processing
    5 control center and electrical generating facility.
    6 Q. When you talk about the gas processing
    7 facility, what exactly is that?
    8 A. That's a section of the gas-to-energy
    9 plant that will contain the compressors that will
    10 actually apply a vacuum to the collection wells
    11 through the header system and transmit the gas from
    12 the landfill into the plant. Also associated with
    13 the gas processing facility are a series of gas
    14 cleaning and processing equipment that will ready
    15 the gas for use as a fuel.
    16 Q. Now, what's the effect of applying the
    17 vacuum?
    18 A. The effect of applying the vacuum, the
    19 vacuum will create a negative pressure within the
    20 wells and cause the landfill gas in and around the
    21 individual wells to flow towards the wells and thus
    22 be extracted up through the wells and into the
    23 collection piping to the plant.
    24 Q. I should have said, what's the purpose of
    25 this system?
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    1 A. The purpose of the system is to extract
    2 landfill gas from the landfill.
    3 Q. And why do you want to do that?
    4 A. RTC wants to extract as much gas as
    5 possible to use as a fuel in the generation of
    6 electricity.
    7 Q. Are these systems fairly common at
    8 landfills?
    9 A. Gas collection systems are fairly common
    10 at landfills.
    11 Q. Are systems where electricity is
    12 generated common?
    13 A. They are becoming more common. They are
    14 currently only in operation on some of the larger
    15 facilities due to their relatively high capital
    16 cost.
    17 Q. What is the cost for constructing one of
    18 these facilities?
    19 A. The current cost estimate for the Taylor
    20 Ridge processing -- or gas collection and
    21 generating facility is 4.5 million dollars.
    22 Q. When -- is there a proposed date where
    23 this system is going to be up and running?
    24 A. We have a projected time frame, sometime
    25 mid 1997 to have the facility operational.
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    1 Q. How much gas is the system designed to
    2 collect?
    3 A. Currently the design will be able to
    4 handle approximately 2,000 cubic feet per minute.
    5 Q. Do you know how much gas the landfill
    6 produces?
    7 A. We base our design estimate to try to
    8 collect as much gas as possible. However, the
    9 system is not designed, nor is there any system I
    10 don't believe designed, to extract the gas at its
    11 absolute peak rate of generation. I don't know how
    12 much gas the landfill itself is currently or
    13 potentially can develop, generate.
    14 Q. Currently where does the gas going -- or
    15 I should say, the landfill is currently generating
    16 gas?
    17 A. The landfill is currently generating gas.
    18 Q. Where does that gas go right now?
    19 A. I would say a large portion of that gas
    20 currently generated escapes to the atmospheres.
    21 Q. Do you have an opinion with respect as to
    22 whether this system will affect how much gas is
    23 escaping the landfill?
    24 A. This system -- I would predict this
    25 system would dramatically reduce the amount of gas
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    1 escaping into the atmosphere.
    2 MR. NORTHRUP: Those are all the
    3 questions I have.
    4 THE HEARING OFFICER:
    5 Cross-examination.
    6 MS. SYMONS-JACKSON: Yes.
    7 CROSS-EXAMINATION
    8 BY MS. SYMONS-JACKSON:
    9 Q. Mr. Fortelka, you testified that it's
    10 estimated that the installation of this entire
    11 system will cost in the neighborhood of 4.5 million
    12 dollars.
    13 A. Correct.
    14 Q. Can you tell me how much of that amount
    15 is attributable to the installation of the gas
    16 collection system only?
    17 A. I believe around $600,000.
    18 Q. And the remainder of that amount would be
    19 attributable to the energy production?
    20 A. Yes.
    21 Q. Are there any other expenses that are
    22 included in that 4.5 million dollars, aside from
    23 energy production and the gas collection?
    24 A. Just activities and materials associated
    25 with that plant.
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    1 Q. Okay. Now, isn't it true, Mr. Fortelka,
    2 that the 4.5 million dollars, or ultimately how
    3 much it costs to install this gas collection
    4 system, is being paid for out of RTC's pockets and
    5 not out of Watts' pockets?
    6 A. As far as capital costs, yes.
    7 Q. RTC is paying for the whole thing?
    8 A. Yes.
    9 Q. Now, isn't it true also, Mr. Fortelka,
    10 that as a result of Watts, if you want to call it,
    11 selling the gas to RTC, Watts will earn a royalty
    12 on the gas that is, in fact, generated and turned
    13 into the energy in the amount of approximately
    14 15,000 to $25,000 per month that this gas is
    15 generated and sold as electricity?
    16 A. If the current output of the plant meets
    17 expectations, then that range is true. That
    18 royalty range is true.
    19 Q. And would you agree, then, that for -- or
    20 tell me how many years do you anticipate being able
    21 to collect gas from this landfill?
    22 A. Well, the plant may operate for 10 to 15
    23 years. However, it should be noted that the
    24 royalty amount will decrease with the output of the
    25 facility, which definitely will decrease over time.
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    1 Q. But gas will be continued to be collected
    2 and sold off as electricity as long as you can
    3 still get gas out of the landfill, right?
    4 A. As long as it continues to be
    5 economically feasible.
    6 Q. As long as the gas is being sold off as
    7 electricity, money is going to go back to Watts as
    8 a royalty payment?
    9 A. That's correct.
    10 Q. Now -- RTC also paid for the permit
    11 application fees pursuant to its contract with
    12 Watts?
    13 A. I believe it did.
    14 MS. SYMONS-JACKSON: That's all I
    15 have.
    16 THE HEARING OFFICER: Mr. Northrup.
    17 REDIRECT EXAMINATION
    18 BY MR. NORTHRUP:
    19 Q. Would you consider gas being a commodity?
    20 A. Yes.
    21 Q. Let me back up a little bit. Ms. Symons
    22 asked you about application fees. Do you know how
    23 much were involved? Do you know if any application
    24 fees were involved in applying for this permit?
    25 A. I would anticipate there were fees, yes.
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    1 Q. Do you have any idea what those might be?
    2 A. I don't know what this facility was.
    3 Q. Does RTC expect to earn more than 4.5
    4 million dollars from this electricity generating
    5 system?
    6 A. Yes.
    7 MR. NORTHRUP: Those are all the
    8 questions I have.
    9 THE HEARING OFFICER: Anything
    10 further?
    11 MS. SYMONS-JACKSON: Just a quick
    12 point to clarify.
    13 RE-CROSS EXAMINATION
    14 BY MS. SYMONS-JACKSON:
    15 Q. When I asked you about the payment of
    16 application fees, what I was actually referring to
    17 were the preparation costs in preparing the
    18 application for the gas management system.
    19 Do you know, did RTC pay for the
    20 preparation of this application?
    21 A. Yes.
    22 Q. It did pay for it?
    23 A. Yes.
    24 MS. SYMONS-JACKSON: Okay. That's
    25 all.
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    1 THE HEARING OFFICER: Anything else?
    2 MR. NORTHRUP: Huh-uh.
    3 THE HEARING OFFICER: Okay. Thank
    4 you. This witness be excused?
    5 MR. DAVIS: Yes.
    6 THE HEARING OFFICER: Off the record
    7 for a minute.
    8 (Off-the-record discussion held.)
    9 MR. NORTHRUP: Call Steve Brao.
    10 THE HEARING OFFICER: Please swear
    11 the witness.
    12 STEVE BRAO,
    13 called as a witness, after having been first duly
    14 sworn, was examined and testified as follows:
    15 DIRECT EXAMINATION
    16 BY MR. NORTHRUP:
    17 Q. Please state your name for the record,
    18 please.
    19 A. Steven Brao.
    20 Q. And what do you do for a living?
    21 A. President of Noble Earth Corporation.
    22 THE HEARING OFFICER: You are going
    23 to have to speak up.
    24 BY MR. NORTHRUP:
    25 A. Environmental consultant company.
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    1 Q. What is -- what does Noble Earth
    2 Corporation do?
    3 A. Provide consulting services to
    4 waste-related industries.
    5 MS. SYMONS-JACKSON: Charlie, if I
    6 can interrupt you for a second. I need a copy of
    7 his deposition.
    8 MR. NORTHRUP: Of his deposition?
    9 MS. SYMONS-JACKSON: Yeah. Sorry
    10 about that.
    11 THE HEARING OFFICER: That's okay.
    12 MR. NORTHRUP: Sorry. What was the
    13 last question?
    14 THE HEARING OFFICER: You asked what
    15 Noble Earth does.
    16 BY MR. NORTHRUP:
    17 Q. What does Noble Earth do?
    18 A. Provide consulting services to
    19 waste-related companies.
    20 Q. Okay. What types of consultant services?
    21 A. I do permitting, construction, quality
    22 assurance services. I do consulting in regulatory
    23 issues, environmental assessments.
    24 Q. Where is your corporation based out of?
    25 A. St. Louis, Missouri.
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    1 Q. Do you want to describe your educational
    2 background for me, please.
    3 A. I have a bachelor of science degree in
    4 geology from Eastern Michigan University.
    5 Graduated in 1984.
    6 Q. Did you have any formal education after
    7 that?
    8 A. No.
    9 Q. Have you attended any seminars or
    10 workshops on environmental issues?
    11 A. Yes.
    12 Q. What -- list out some of those for me.
    13 A. Continuing education at the University of
    14 Wisconsin, Madison. Also -- also Green Bay.
    15 Landfill operation, design classes specific to the
    16 waste industry.
    17 Q. Are you familiar with ESG Watts?
    18 A. Yes.
    19 Q. Okay. How are you familiar with them?
    20 A. Prior to starting the Noble Earth
    21 Corporation, I operated a landfill in Litchfield,
    22 Illinois. I knew Tom Jones professionally. ESG
    23 Watts operated the Sangamon Valley Landfill. That
    24 was one of my competitors. So I was aware of that
    25 facility. And through Tom, became aware of the
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    1 Taylor Ridge facility.
    2 Q. Take a step back. Can you give me some
    3 of your work experience? You say you operated a
    4 landfill?
    5 A. Yes. I was a landfill operator.
    6 Litchfield, Illinois site. Prior to that, I
    7 operated a facility in Auburn Hills, Michigan.
    8 Prior to that, I was construction manager at a
    9 co-disposal facility, Ford Motor Company, Dearborn,
    10 Michigan. One of the suburbs there. And prior to
    11 that, I was the operations manager and also served
    12 as -- in the capacity of compliance engineer with a
    13 hazardous waste company. It was -- also a
    14 co-disposal facility in Belleville, Michigan.
    15 Prior to that, I worked for a consulting company
    16 and provided consulting services to various
    17 waste-related industries. And before that, similar
    18 position with another consulting company. Both
    19 consulting companies, I was employed as a staff
    20 geologist.
    21 Q. Okay. Before that, you were in school?
    22 A. Yes.
    23 Q. Okay. The first consulting company you
    24 worked for, what -- what are the dates that you
    25 were there? Who were they? What's the name of the
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    1 company?
    2 A. I had submitted a resume. I don't recall
    3 the dates offhand.
    4 Q. Okay. That's fine, if you don't recall.
    5 I don't have a copy with me.
    6 A. Roughly in 1984 to '85.
    7 Q. Okay. Then the next consulting company?
    8 A. I was there for approximately two years.
    9 Q. Okay. And what types of work did you do
    10 there?
    11 A. The same type of work I did at the first.
    12 I was a staff geologist. Majority of my time was
    13 spent on solid waste sites, constructing landfills,
    14 providing CQA services.
    15 Q. What is CQA?
    16 A. Construction quality assurance services.
    17 Q. And your next position, you were a
    18 compliance engineer?
    19 A. Yes. I was hired by -- at the time, the
    20 company was known as Wayne (phonetic spelling)
    21 Disposal. Later to become known as Environmental
    22 Quality Company. I was hired by their engineering
    23 department to provide their in-house construction
    24 quality assurance.
    25 Q. How long were you at Wayne Disposal?
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    1 A. About ten years.
    2 Q. Okay. And then you worked at -- is it a
    3 Ford co-disposal?
    4 A. Wayne Disposal provided management
    5 services for that Ford Motor Company co-disposal.
    6 Q. Okay. And then how about the Auburn
    7 Hills, is that the same thing?
    8 A. Wayne Management, the environmental
    9 quality company, owned that facility.
    10 Q. Okay. And how about Litchfield?
    11 A. The environmental company owned that
    12 facility as well.
    13 Q. Now, you are familiar with the Taylor
    14 Ridge landfill?
    15 A. Yes.
    16 Q. You are familiar with ESG Watts' other
    17 landfill sites in Illinois?
    18 A. I'm familiar with the Sangamon Valley
    19 landfill.
    20 Q. When was the first time you visited the
    21 Taylor Ridge landfill?
    22 A. I believe it was Monday, July 15th.
    23 Q. Of what year?
    24 A. 1996.
    25 Q. Okay. And why were you there?
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    1 A. I made a site visit with Mike Olson, who
    2 is the CQA officer for a project that I am working
    3 on. Mike and I did a site inspection together.
    4 Q. What's the project that you were working
    5 on at that time?
    6 A. Resource Technology Corporation's gas
    7 installation. Gas management installation.
    8 Q. Okay. And what exactly were you doing
    9 for RTC?
    10 A. Providing construction quality assurance
    11 services.
    12 Q. Exactly what does that mean?
    13 A. I was providing services. The state of
    14 Illinois requires certification by an independent
    15 registered professional engineer. Mike Olson would
    16 be that professional engineer. I work with Mike
    17 doing the field end of that requirement and more or
    18 less acting as his eyes and ears on a project.
    19 Q. How many times between July and today,
    20 just in general terms, in approximation, have you
    21 spent at the Taylor Ridge landfill?
    22 A. 39 days.
    23 Q. And what types of things have you done
    24 there during those 39 days?
    25 A. Monitoring the installation of gas
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    1 extraction, leachate extraction wells. I have been
    2 initiating some zoning variance efforts, locating
    3 the future location of the power plant. I've
    4 provided some assistance in determining locations
    5 of gas wells. Most recent, I've been doing some
    6 borings in the landfill cap and measuring cover
    7 thickness.
    8 Q. Now, were you retained by Watts to do
    9 these borings on the landfill cap, when did you do
    10 that?
    11 A. Yes. It would have been March or April
    12 of -- it was originally discussed in March or April
    13 of 1996. I didn't actually begin any work.
    14 A. About two weeks ago. I did some survey
    15 work.
    16 Q. Okay. So mid-October?
    17 A. Yes.
    18 Q. Okay.
    19 A. I believe it was the 15th and 16th.
    20 Q. Why did it take you between March and
    21 April of '96 to October before you actually started
    22 doing some work?
    23 A. The -- the cover certification requires
    24 me to provide some field density testing. To do
    25 that testing, I needed to obtain a license to own
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    1 and operate a small portable nuclear device. In
    2 order to get the license, I had to get some
    3 certification. By the time I got the certification
    4 and then the license, it was already mid-August.
    5 And then I ordered my equipment. And then the
    6 equipment came out of South Carolina. And they had
    7 a hurricane. And that delayed shipment. And I
    8 finally got the equipment about a week or so ago.
    9 Q. Besides the hurricane, have there been
    10 any other weather problems that have prevented you
    11 performing your borings?
    12 A. Yes. When I went to the site, I believe
    13 it was the 16th of October. I have my date book if
    14 you'd like me to verify the date. When I did the
    15 survey work, the intention was to -- was to go
    16 ahead with the borings the following day. But
    17 what -- we got quite a bit of rain that night, that
    18 morning, and we just couldn't access the landfill.
    19 Q. So when did you actually begin your
    20 borings?
    21 A. The afternoon of the deposition last
    22 week. I believe deposed on Thursday, and I drove
    23 to Taylor Ridge and began doing borings on the cap
    24 that afternoon.
    25 Q. Okay. Step back a minute. What -- what
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    1 were you specifically retained to do by ESG Watts?
    2 A. I was asked -- I was asked to verify
    3 three foot of cover on the landfill.
    4 Q. Okay. Now, how do you go about verifying
    5 cover?
    6 A. The two ways I'm most familiar with would
    7 be using two surveys, surveying the top of waste,
    8 placing your cover, and then surveying again, and
    9 doing a subtraction between the points. And that
    10 would then show you thickness.
    11 But since there was no top-of-waste
    12 survey to rely on, I would use direct measurement.
    13 I was going to use a -- I used a portable boring
    14 rig and drilled holes in the -- in the cap, so I
    15 could take direct measurement.
    16 Q. How many borings did you -- did you take?
    17 A. The first afternoon we worked -- we
    18 worked late. We did the flatter portion of the
    19 landfill. We did 65. The second day, I completed
    20 the balance. I had originally identified 171
    21 potential locations. Those locations were shown on
    22 a plan grid pattern, and I completed 152.
    23 Q. You completed 152 total for both days?
    24 A. Yes.
    25 Q. And that's all that you did?
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    1 A. Yes.
    2 Q. Now, did you do all these borings
    3 yourself, or did you have any assistance?
    4 A. I did not run the equipment. I had
    5 Mr. Watts' personnel run the boring equipment.
    6 Q. Who was that?
    7 A. Steve Grothus.
    8 Q. Okay. What were you doing while
    9 Mr. Grothus was running the equipment?
    10 A. I watched him running the equipment,
    11 examine the spoils, remove the auger. I looked at
    12 the spoils on the auger, the spoils on the ground.
    13 And then I examined the bore hole itself and take a
    14 direct measurement to whatever depth counterweight.
    15 Q. How do you take the direct measurement?
    16 A. With a tape measure.
    17 Q. Now, were your borings confined to the
    18 flat area of the landfill, or did you do the slopes
    19 as well?
    20 A. We had to do the slopes as well.
    21 Q. And did you record your findings?
    22 A. Yes.
    23 MR. NORTHRUP: I'm going to go
    24 ahead and mark this as Respondent's 3. It's a
    25 two-page -- two pages. I'll go ahead and mark
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    1 the second page separately.
    2 THE HEARING OFFICER: There is no
    3 need. Is it not stapled.
    4 MR. NORTHRUP: No. It's not
    5 stapled.
    6 THE HEARING OFFICER: Okay.
    7 MR. NORTHRUP: Okay.
    8 BY MR. NORTHRUP:
    9 Q. Can you identify what I am about to hand
    10 you, which have been marked Respondent's Exhibits 3
    11 and 4?
    12 A. My field log from October 24th and
    13 October 25th, 1996.
    14 Q. Which one is 24 and which one is 25?
    15 A. The one dated the 24th in the upper
    16 right-hand corner is from the 24th. The one that's
    17 nearly completely filled out is from the 25th, and
    18 this is also dated.
    19 THE HEARING OFFICER: Is that
    20 Exhibit 4?
    21 THE WITNESS: Yes.
    22 THE HEARING OFFICER: Okay.
    23 BY MR. NORTHRUP:
    24 Q. Okay. Now, did you -- did you prepare
    25 these documents?
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    1 A. Yes.
    2 Q. And do they accurately reflect your depth
    3 readings?
    4 A. Yes.
    5 MR. NORTHRUP: I'd go ahead and move
    6 for the admission of these two documents.
    7 THE HEARING OFFICER: Is there any
    8 objection?
    9 MS. SYMONS-JACKSON: No.
    10 THE HEARING OFFICER: Then they are
    11 both admitted.
    12 BY MR. NORTHRUP:
    13 Q. Now, on Respondent's Exhibit 4, I want
    14 you to take a look at two boxes at the intersection
    15 of I-14 and J-14 and K-14. Can you tell me what
    16 those say?
    17 A. I-14 says 1.5 foot of cover. That depth
    18 measurement was taken on the I line at the
    19 intersection of the 1400 plus 25 line. J-14, I
    20 found 1.5 foot of cover. And K -- you asked for
    21 K-14?
    22 Q. Yeah.
    23 A. K-14, I also found 1.5 foot of cover.
    24 And that's at -- located at the I plus -- I can't
    25 read this copy. It came from a fax, I assume.
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    1 Q. (Nods head.)
    2 A. That came slightly off of the J line. I
    3 believe 50 feet off the J line at the 1400 line.
    4 Q. You'll note from just reviewing the other
    5 documents that the 1.5 do appear to be quite a bit
    6 less than the other borings. Do you have any
    7 explanation as to why that might have occurred?
    8 A. The -- that specific area, I found --
    9 found four borings -- there were four borings that
    10 showed insufficient cover. There is no vegetative
    11 cover laying in place in that area. And that area
    12 is being used as an equipment storage area. Their
    13 roll-off boxes and heavy construction equipment
    14 sitting there.
    15 Q. Has Watts instructed you to do anything
    16 with your boring findings?
    17 A. Not yet.
    18 Q. Are you doing any additional testing?
    19 A. Yes.
    20 Q. Okay. What is that?
    21 A. If -- since all of the borings did not
    22 show compliance with our objectives, I went back.
    23 And as I stated in my deposition, I reviewed the
    24 pertinent criteria as far as depth measurement.
    25 And Tom Jones had originally asked me to
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    1 certify three foot of cover. When I took out the
    2 807 regs, the August 1993 closure -- closure
    3 document supplied by Watts and the supplemental
    4 permit, I found the requirement was -- was very
    5 clear. There is only two foot of final cover
    6 necessary, and six inches of a layer to support
    7 vegetation.
    8 So with that in mind, the requirement for
    9 certification would be reduced to a total of
    10 two-and-a-half foot. But there are also some other
    11 requirements. The top -- the top lift of cover.
    12 This is not to see the vegetative lift that would
    13 be exposed, but the top lift of cover was to have
    14 been placed in an eight-inch lift and compacted to
    15 approximately six inches. It had to be compacted
    16 to 90 percent of its maximum dry density. And it
    17 had to be placed at a -- at a moisture content. I
    18 believe it's 2 to 5 percent above optimum. Perhaps
    19 it's 3 to 5 percent above optimum.
    20 Since I wasn't there to see this be
    21 placed, I can't make any assessment as to the
    22 condition when it was placed, how thick the lifts
    23 were. However, the weather was such that I could
    24 access the site. And I began doing density tests.
    25 The density tests at this point are
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    1 inconclusive, because I don't have the lab
    2 information to tell me what the maximum density
    3 is. And make an -- and on surveying of whether or
    4 not we were compliant with the 90 percent
    5 requirement it appears.
    6 I'm done with my density testing. I was
    7 hoping to complete the sampling yesterday, but I
    8 just couldn't get up on the landfill because of the
    9 weather. So I will complete the sampling of that
    10 lift, get the appropriate lab analysis completed,
    11 and compare my results with that. And that will
    12 also then be included in my report.
    13 Q. Now, you can't certify the cover, is that
    14 correct?
    15 A. That's correct.
    16 Q. You have to be a P.E. to do that?
    17 A. Yes.
    18 Q. So what are you going to do with your --
    19 with the data that you've produced from your
    20 testing?
    21 A. Mike Olson is doing the certification.
    22 Q. You -- I assume Watts agreed to pay you
    23 for this work.
    24 A. Yes.
    25 Q. Okay. Was payment contingent in any way
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    1 on your findings?
    2 A. No.
    3 MR. NORTHRUP: I don't have any
    4 further questions.
    5 THE HEARING OFFICER:
    6 Ms. Symons-Jackson.
    7 MS. SYMONS-JACKSON: Yes.
    8 CROSS-EXAMINATION
    9 BY MS. SYMONS-JACKSON:
    10 Q. Mr. Brao, you only just began your
    11 sampling or taking your soil logs less than a week
    12 ago, correct?
    13 A. Yes.
    14 Q. And you have not finished your data
    15 collection at the facility, correct?
    16 A. That is correct.
    17 Q. Okay. So as you sit here today, you
    18 can't give us any opinion regarding the adequacy of
    19 the final cover of this landfill, can you?
    20 A. Not in its entirety.
    21 MS. SYMONS-JACKSON: That's all I
    22 have.
    23 THE HEARING OFFICER: Mr. Northrup.
    24 REDIRECT EXAMINATION
    25 BY MR. NORTHRUP:
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    1 Q. Okay. What limited opinions can you give
    2 us about the cover on this landfill?
    3 A. There is sufficient cover thickness in
    4 place over much of the area. However, there exists
    5 an area approximately half an acre that clearly
    6 shows insufficient cover.
    7 Q. Okay. And where is that? Where is that
    8 half acre? Is that what we have been talking
    9 about?
    10 A. Yes. J-14. There were also two other
    11 borings that indicated insufficient cover, both of
    12 which measured 2.4 feet. One was in the northeast
    13 corner. A-1. It measured 2.4 feet. And the
    14 another in the northwest corner. F minus 100
    15 feet. There is insufficient cover in both of those
    16 locations, but I was unable to make any -- the
    17 surroundings borings show greater than three feet
    18 or three feet of cover. I did -- I made no effort
    19 to simulate the area into a smaller description.
    20 MR. NORTHRUP: I don't have any
    21 further questions.
    22 MS. SYMONS-JACKSON: I don't have
    23 anything else.
    24 THE HEARING OFFICER: Okay.
    25 THE WITNESS: Thank you.
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    1 THE HEARING OFFICER: Off the record
    2 for a second.
    3 (Off-the-record discussion held.)
    4 THE HEARING OFFICER: Okay. Let's
    5 go back on the record. Please swear the witness.
    6 JOSEPH CHENOWETH,
    7 called as a witness, after having been first duly
    8 sworn, was examined and testified as follows:
    9 DIRECT EXAMINATION
    10 BY MR. NORTHRUP:
    11 Q. Please state your name for the record.
    12 A. Joseph Chenoweth.
    13 Q. And where do you work?
    14 A. I work for ESG Watts Taylor Ridge
    15 landfill.
    16 Q. What do you do at Taylor Ridge?
    17 A. What is my position or what do I do?
    18 Q. What's your position?
    19 A. I'm a landfill supervisor.
    20 Q. What exactly does that mean?
    21 A. I fill in for my immediate supervisor,
    22 Elmer Elliot. When he's off site, I take over his
    23 responsibility. My responsibilities are many, all
    24 the way from picking up paper to running heavy
    25 equipment, site inspections, fixing and repairing
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    1 leachate seeps, odors. I run guard shack, do a
    2 little bit of everything, fill out site inspection
    3 reports.
    4 Q. What's your typical day at the landfill?
    5 When do you get there? When do you leave?
    6 A. Oh, on average of probably a quarter to
    7 6:00 in the morning till earliest I leave is 4:00
    8 in the afternoon. Sometimes it's later than that.
    9 Q. Are you familiar with the term daily
    10 cover?
    11 A. Sure am.
    12 Q. What's your understanding of that term?
    13 A. Daily cover, there is a requirement of
    14 six inches of soil that needs to be covered at the
    15 end of each workday. Or what we have is a
    16 synthetic fabric, ATC, Alternate Daily Cover, that
    17 we can use also.
    18 Q. With respect to the dirt, where does that
    19 come from? Where does it come from for use as
    20 daily cover?
    21 A. We have a borrow area that we haul the
    22 dirt from to the active phase each day.
    23 Q. Now, you do not yourself apply daily
    24 cover on a -- on a daily basis?
    25 A. Myself, not on a daily basis, no.
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    1 Q. Okay. You have applied it, though, in
    2 the past?
    3 A. I have applied it, yes.
    4 Q. Okay. Have you instructed other landfill
    5 employees about the requirements of daily cover?
    6 A. Every employee there knows the
    7 requirement for daily cover.
    8 Q. Okay. And what is your basis for saying
    9 that?
    10 A. I have talked to each one and have
    11 stressed it at least three, four times a week on
    12 it.
    13 Q. Do you ever go out at the end of the day
    14 to insure that daily cover is in place?
    15 A. Every day.
    16 Q. Can you recall any day where -- in the
    17 last year where there has not been daily cover on
    18 the place?
    19 A. On the active work space, I can never
    20 recall a time that it was never properly put on.
    21 Q. Now, I suppose to be fair, you do take
    22 vacations from time to time.
    23 A. I do take vacations from time to time.
    24 Q. So you are not at this landfill every
    25 day?
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    1 A. Not every day.
    2 Q. Let me show you --
    3 MR. NORTHRUP: I will go ahead and
    4 mark this as Respondent's Exhibit 5.
    5 BY MR. NORTHRUP:
    6 Q. Can you identify that for me? Tell me
    7 what it is.
    8 MR. NORTHRUP: Also, if I did not
    9 move for the admission of 3 and 4 --
    10 THE HEARING OFFICER: They are in.
    11 MR. NORTHRUP: Okay.
    12 BY MR. NORTHRUP:
    13 A. Could you ask the question again?
    14 Q. Sure. Can you just identify that for
    15 me? Tell me what it is?
    16 A. Table of contents. It's referring to
    17 site inspection reports, leachate seep repair.
    18 Q. Okay. Hand it back to me.
    19 THE HEARING OFFICER: That who
    20 prepared? I'm sorry.
    21 MR. NORTHRUP: I don't think he
    22 said.
    23 THE WITNESS: I didn't say who
    24 prepared it.
    25 MR. NORTHRUP: I'm not going to get
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    1 it in through Joe.
    2 THE HEARING OFFICER: Okay.
    3 BY MR. NORTHRUP:
    4 Q. Take a look at the seventh page of this
    5 document. Can you tell me what that is?
    6 A. That's a site inspection report that I
    7 fill out each time I walk the landfill site and I
    8 return.
    9 Q. Did you have any input into developing
    10 that form?
    11 A. I've had some input into developing
    12 that. Mostly the attachment that I have put onto
    13 it is mostly input that I had.
    14 Q. What's the -- what is the attachment?
    15 A. It's a topo map of the landfill.
    16 Q. And what do you do with the topo map?
    17 A. I pinpoint a little more accurate of
    18 where the problem areas are on the -- that had been
    19 repaired or need attention or repair work done to
    20 it.
    21 Q. Okay. How often, approximation, in any
    22 given week do you perform -- I should say do you
    23 perform site inspections?
    24 A. Yes, I do.
    25 Q. Okay. How often in any given week do you
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    1 go out and perform these inspections?
    2 A. No. Less than three times a week as far
    3 as I can remember doing it. And all the way up to
    4 six times a week.
    5 Q. Does anyone else at the landfill perform
    6 these inspections?
    7 A. Not these inspections, no. But everybody
    8 knows to look for problem areas that sometimes I
    9 may miss, because I got 80 acres to cover, and it's
    10 a tough job to do. And any time through their
    11 operations, if they see something, they will notify
    12 me. But it is my job to do.
    13 Q. What exactly do you do on site
    14 inspections?
    15 A. I'll walk the landfill on foot when
    16 weather permits, which is most of the time, and
    17 I'll be looking for any sort of troubles; litter,
    18 erosions, seeps, odors, any problems whatsoever.
    19 Q. Okay.
    20 A. Then I'll note it, and then I'll get the
    21 problems corrected.
    22 Q. Okay. When you note it, what do you mean
    23 by that? Note it where?
    24 A. Note it on my site inspection report.
    25 Q. Okay. So you take one of these forms
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    1 with you when you go?
    2 A. No. I'll take a notebook with me, and
    3 then I'll come back and put it down on a site
    4 inspection report.
    5 Q. Okay. Do you mark the location on the
    6 landfill in any particular way?
    7 A. Like I said, on my topo map that I attach
    8 to it is where I do the markings at, and I carry
    9 one with me when I'm out there, so I know.
    10 Q. But do you -- if you come across a
    11 leachate seep, do you mark that in some way?
    12 A. Oh, yes, I do. Unless I'm going to
    13 repair it myself, then I'll flag it.
    14 Q. Then how do you mark it?
    15 A. I put an orange flag by it, and then I
    16 get word to the people where it's at, and they go
    17 pull the flag and bring it back to me. That way I
    18 know it's repaired.
    19 Q. If -- how do you repair -- say, if you
    20 come across a leachate seep. How do you repair one
    21 of those?
    22 A. Depending on weather conditions, and if
    23 the problem area -- because we do have certain
    24 areas that we have problems with. It's one of the
    25 reasons for the site inspection report. Keeps me
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    1 posted where they are at, so I keep an eye on it on
    2 a daily basis.
    3 If it's a serious problem, we will
    4 excavate it, take it out, and we will fill it in
    5 sometimes with gravel and dirt. Most generally, we
    6 just cap the area. We haul clay to the area, cap
    7 it and compact it.
    8 Q. And have you instructed other landfill
    9 employees on how to repair leachate seeps?
    10 A. Yes, I have.
    11 Q. Do you fill out one of these site
    12 inspections reports every time you do a site
    13 inspection?
    14 A. Every time I do a site inspection, I fill
    15 one out.
    16 Q. Even if you didn't find anything?
    17 A. Even if I didn't find anything.
    18 Q. Do -- the problems that you discover on
    19 your site inspections, are those repaired the same
    20 day?
    21 A. I would say rough guess, 90 percent of
    22 them are repaired that day, depending upon the
    23 weather. The weather will stop us most of the
    24 time, 'cause I don't risk life or limb.
    25 Q. Now, are there other occasions where you
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    1 might be notified of a problem other than your own
    2 personal observations through the site inspections?
    3 A. Rephrase that again.
    4 Q. Yeah. Would you ever be alerted to any
    5 other -- to problems at the landfill from any other
    6 person?
    7 A. Other than myself?
    8 Q. Other than yourself.
    9 A. Yes. About any source. The office
    10 personnel, if they see something, they will notify
    11 me. Like I said, the employees theirselves.
    12 Neighbors' complaints. I've also answered to all
    13 of those.
    14 Q. You have made repairs in response to
    15 neighbors' complaints?
    16 A. Always.
    17 Q. If you have received a neighbor's
    18 complaint, has there been any time where you did
    19 not respond?
    20 A. Never.
    21 Q. Are you aware at -- what are the
    22 operating hours of the landfill?
    23 A. Operating hours, Monday through Friday
    24 are from 6:00 a.m. till 4 o'clock p.m. On
    25 Saturday, it's 7:00 a.m. until 12 o'clock noon.
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    1 Q. Now, when you say the operating hours is
    2 until 4 o'clock, does that mean the last truck
    3 comes in at 4 o'clock, or do you stop sometime
    4 before then?
    5 A. They are required to be out of the gate
    6 by 4 o'clock.
    7 Q. Be out?
    8 A. Right.
    9 Q. To your knowledge, have you ever operated
    10 your -- you or any of your employees, operated
    11 equipment, say, within the last three years after
    12 8 o'clock at night?
    13 A. The only time I can recollect is probably
    14 the summer of '93 when we were running three
    15 shifts. After that summer of '93, never, to my
    16 knowledge, have we ever operated after dark.
    17 Never.
    18 Q. Now, would you from time to time be
    19 making repairs on equipment --
    20 A. No.
    21 Q. -- at night?
    22 A. There is -- well, I take that back.
    23 There is a second shift during that time that might
    24 be bringing a machine in from the parking area
    25 outside to work on it or something like that. But
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    1 it's not like they are -- they are running it for
    2 anything more than a half an hour to get it started
    3 and move it inside.
    4 Q. Okay. When you talk about --
    5 A. That's what I'm assuming.
    6 Q. When you talk about a second shift, is
    7 that something that's currently going on?
    8 A. Not right now. We had -- it was a
    9 maintenance crew.
    10 Q. Okay. And when was the last time that
    11 you had this second shift?
    12 A. I couldn't even take a guess.
    13 Q. More than a year ago?
    14 A. I guess not -- maybe that. Maybe that.
    15 I really don't know.
    16 Q. While I'm looking for one of these
    17 documents, why don't you -- do you live in the Rock
    18 Island area?
    19 A. I live in Davenport, Iowa.
    20 Q. Okay. What is your educational
    21 background?
    22 A. I have a high school education.
    23 Q. Did you get that in the Rock Island area?
    24 A. I got it in Davenport.
    25 Q. Okay. You ever been in the service?
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    1 A. I was in the United States Marine Corps.
    2 for four years.
    3 Q. When was that?
    4 A. 1967 through 1971.
    5 Q. Let me -- I will hand you what has been
    6 marked Peoples Exhibit 40, which is an inspection
    7 report done by Ron Mehalic. Why don't you take a
    8 look at -- I'm going to show you the narrative
    9 portion.
    10 MS. SYMONS-JACKSON: What's the date
    11 on that, Charlie?
    12 MR. NORTHRUP: This is October 6th
    13 of '94.
    14 MS. SYMONS-JACKSON: Thank you.
    15 THE HEARING OFFICER: Do you have a
    16 copy?
    17 MS. SYMONS-JACKSON: Yes.
    18 THE HEARING OFFICER: Okay. ;
    19 BY MR. NORTHRUP:
    20 Q. I've marked a little portion. Why don't
    21 you go ahead and read that for me, just to
    22 yourself.
    23 A. Okay.
    24 Q. Do you recall this incident?
    25 A. I recall that incident.
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    1 Q. Okay. Now, Mr. Mehalic indicates that
    2 Mr. Chenoweth stated that he would have this area
    3 covered as soon as possible. Do you recall what
    4 you did in response to this?
    5 A. I remember taking scrapers, which are
    6 dirt hauling equipment, and hauling dirt from the
    7 borrow area to that area, and unloading it, and
    8 then dozers would come by and spread it throughout
    9 the area and fix the erosions that were showing
    10 exposed refuse through it.
    11 Q. Okay. And the second part where he talks
    12 about -- let's see. This steep slope and the fact
    13 that more intermediate soil cover needed to be
    14 applied, did you respond to that?
    15 A. Yes, I did.
    16 Q. Okay. What did you do about that?
    17 A. The same thing as I -- I did to the
    18 erosions area.
    19 Q. I should say, when did you act on this?
    20 A. That I can't recollect.
    21 Q. Would it have been on or about the date
    22 of the inspection?
    23 A. That I can't recollect. I react upon
    24 everything according to weather mostly. I guess I
    25 wouldn't risk anybody's life or limb for hauling
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    1 dirt.
    2 Q. From time to time, rather than go through
    3 all of the inspections, you would accompany
    4 Mr. Mehalic on his inspections?
    5 A. Most every one of them, I have. There
    6 has been a few occasions where I have arrived late
    7 for some reason, and he is already out and about
    8 doing it.
    9 Q. And from time to time, would Mr. Mehalic
    10 identify problem areas?
    11 A. Every time I walked the inspects with
    12 him, would he identify the problem areas.
    13 Q. And was it your practice to act upon
    14 those problem areas?
    15 A. Yes.
    16 Q. Okay. Do you recall ever having a time
    17 where you and Mr. Mehalic discussed something that
    18 needed to be done and you not performing that?
    19 A. Never have I ever remembered that, no.
    20 It might have been two or three days later or maybe
    21 a week later, but I've always acted upon it.
    22 Q. I'm going to hand you Peoples Exhibit 51,
    23 which is also a Mehalic inspection report. Why
    24 don't you read just this last paragraph of the
    25 narrative and then up at the top?
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    1 A. Okay. Okay.
    2 Q. Do you recall at that specific incident?
    3 A. Without a doubt, I do, yes.
    4 Q. And how do you remember that?
    5 A. I heard that there was a complaint that
    6 we had exposed garbage left over from the drilling
    7 rigs. And the next day, I did investigate it, and
    8 Ron Mehalic was with me. And he -- there was
    9 exposed garbage by the drilling rig, and there was
    10 an open -- there wasn't an open gas hole, but it
    11 was a well that they dug, but it was covered with a
    12 steel plate so nobody would fall in it. And he
    13 asked me, why this is. And I told him, as I've
    14 stated all along, that the weather would not permit
    15 equipment to get down to where that exposed garbage
    16 is to haul it away to the active area for that
    17 day.
    18 There is a lighting storm and everything,
    19 and the drilling company left that day because of
    20 the boom. It sticks up in the air. Asking for a
    21 lightning rod. But I would not let anyone go down
    22 that slope to check that, because, like I said, I
    23 wouldn't offer life or limb. I will not do that.
    24 Q. To you it was a serious enough situation?
    25 A. To me, yes, but I know it is a citing.
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    1 I'll take the citing over life and limb any day.
    2 Q. What do you mean citing?
    3 A. That there is exposed garbage.
    4 Q. Other than this incident, are you aware
    5 of any time where waste was -- spoils were
    6 produced from the gas wells that was not covered
    7 that day?
    8 A. I don't know what you mean there. Could
    9 you say that again?
    10 Q. Other than this incident --
    11 A. Okay.
    12 Q. -- are you aware of any other time where
    13 waste produced from the drilling operations at
    14 these gas wells was not -- was left exposed
    15 overnight?
    16 A. No. I don't ever remember another time.
    17 They had -- they had a problem with litter control
    18 that is kept care of by though. No.
    19 Q. Did they address that problem at all?
    20 A. Yes, they did.
    21 Q. How did they do that?
    22 A. They spent two weeks hiring temporary
    23 help, picking up the litter, stuff like that that
    24 was left over.
    25 Q. Okay.
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    1 A. And I would do an inspection each day and
    2 address it and find out where they needed more work
    3 and where they didn't.
    4 Q. Did they pick -- was this -- were they
    5 focused -- strike that.
    6 This litter that they were to pick up,
    7 was it primarily on the landfill, or was it off
    8 site?
    9 A. It was all on the landfill.
    10 Q. Have you ever installed silt fences on
    11 the landfill?
    12 A. I've had them installed, and I have
    13 installed them myself, yes.
    14 Q. Where would you have installed those?
    15 A. Oh, numerous places. North -- northwest
    16 corner, northeast corner, south slopes, west
    17 slopes. All over the landfill. Wherever it needed
    18 it the most.
    19 Q. Any idea how often you would have done
    20 that?
    21 A. I can't really say how often.
    22 Q. Currently, as of today, how much of the
    23 landfill, the inactive portion, has vegetative
    24 growth on it?
    25 A. Estimate 3/5ths of it.
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    1 Q. Now, where is that other 2/5ths?
    2 A. That would be the top portion of the
    3 landfill, and that would be the northeast slope.
    4 Q. Why isn't there any vegetation up there?
    5 A. On the top?
    6 Q. Yeah.
    7 A. Mostly because of we knew the ongoing
    8 work with the gas extraction wells going in.
    9 Q. What's -- what's the ongoing work? Lots
    10 of vehicles?
    11 A. Lots of vehicles. Heavy equipment.
    12 Everything. Yes.
    13 MR. NORTHRUP: I don't have any
    14 further questions.
    15 MR. DAVIS: May we have five
    16 minutes, please.
    17 THE HEARING OFFICER: Yes.
    18 (Recess taken.)
    19 THE HEARING OFFICER: Let's go back
    20 on the record.
    21 MR. DAVIS: Madam hearing officer,
    22 we have been consulting; that is, lead counsel,
    23 myself and the Agency attorney, on the issue of
    24 dealing with -- primarily dealing with Respondent's
    25 Exhibit No. 1 the sig-mod resubmittal.
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    1 Now, as you've been aware through our
    2 presentation, we have focused on, from our
    3 perspective, the failure of the Watts companies to
    4 pursue leachate management, storm water management,
    5 this that and the other.
    6 It now appears that this exhibit
    7 contains -- attempts to do that. It also should be
    8 very obvious that it was recent submitted. It has
    9 not received a technical review. I can represent
    10 that as an officer of the court so to speak. I can
    11 also represent that it's not been filed as a
    12 permanent application. We need to take a look at
    13 that.
    14 We need to prepare ourselves not only for
    15 rebuttal but for the testimony that we anticipate
    16 from Mr. Jones, who is the in-house engineer. We
    17 need to be able to cross him and so forth.
    18 This is a big case to us. We have
    19 certainly made a big production out of it. And
    20 there is no reason to impose upon the good graces
    21 of the court reporter in going further tonight or
    22 even doing a partial day tomorrow.
    23 What I'm asking essentially is at your
    24 convenience as the hearing officer, could give us
    25 another full day at some point in the future. We
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    1 night only need a couple of weeks. And that's
    2 perhaps optimistic, because I've got -- I've --
    3 what I'm got in mind is involving a rebuttal
    4 witness by the name of the Joyce Munie, M-U-N-I-E.
    5 And I don't know your schedule.
    6 That's the type of motion that I'm
    7 seeking to try to finish with Mr. Chenoweth. To
    8 try to stop at a reasonable time together and
    9 resume when we are ready to proceed, because I can
    10 represent to you that the extent of Exhibit No. 1
    11 has come as somewhat of a surprise to us.
    12 Additionally -- and that was the primary
    13 reason. Secondarily, we have heard some testimony
    14 from Mr. Brao, whom we only deposed last week, as
    15 you may recall, regarding certification attempts on
    16 final cover under 807. And we have an issue
    17 whether that's going to be acceptable. A big
    18 issue.
    19 Obviously, 88 wells have been put in on
    20 the site and so forth. Certainly, you know, nobody
    21 advised the Agency that there -- and they could not
    22 have -- that there were such and such depth of
    23 so-called final cover in these portions. That
    24 wasn't part and parcel of the gas management plan,
    25 et cetera, et cetera. So we do have -- have
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    1 several reasons. I don't really want to belabor
    2 the point, because I don't know if Mr. Northrup is
    3 going to object.
    4 THE HEARING OFFICER: Mr. Northrup,
    5 do you have any objection?
    6 MR. NORTHRUP: Can I talk to these
    7 guys? I kind of doubt I will object, but I want to
    8 check with the client.
    9 MR. DAVIS: Sure.
    10 THE HEARING OFFICER: Can we go
    11 ahead? I'm sorry.
    12 MR. DAVIS: Mr. Riser (phonetic
    13 spelling) is from Springfield, so we may want to
    14 squeeze him in. I don't know.
    15 THE HEARING OFFICER: Can we go off
    16 the record for a second?
    17 (Off-the-record discussion held.)
    18 (Recess taken.)
    19 THE HEARING OFFICER: Back on the
    20 record. Okay. We have just had a lengthy
    21 conversation off the record regarding suspension or
    22 continuance of the hearing until such time as the
    23 attorney general can get someone at IEPA -- we're
    24 not sure who yet -- to review the submittal, which
    25 is Exhibit No. 1.
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    1 And it has -- we have agreed off the
    2 record that we will have a conference call next
    3 week, which would be the first full week in
    4 November to pick our next hearing date, which we
    5 are going to have in Springfield, because we have
    6 fulfilled our requirement to be within the county,
    7 and we have been here for the public.
    8 I believe that what we are talking about
    9 for the rest of the hearing is pretty much
    10 testimony by IEPA people, with the exception of Tom
    11 Jones to talk about the submittal.
    12 MR. NORTHRUP: And Riser.
    13 MR. DAVIS: Steve.
    14 MR. NORTHRUP: Steve Grothus too.
    15 THE HEARING OFFICER: And for the
    16 convenience of everyone, I believe that we will
    17 reconvene in Springfield. And that time we will
    18 set in a conference call. So that we don't forget
    19 the briefing schedule and things like it, we will
    20 take care of when we are finally done with the
    21 hearing.
    22 But my intention was to ask for page two
    23 of Exhibit 13, and I believe you had two tax
    24 returns which you needed to provide to the Board on
    25 the same day that the transcript is due.
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    1 MR. DAVIS: 66 and 67.
    2 THE HEARING OFFICER: Will you be
    3 able to provide those by the time the transcript is
    4 due?
    5 MR. DAVIS: Sure.
    6 THE HEARING OFFICER: Okay. And it
    7 is still my intention to give our court reporter
    8 extra time, because we have kept her late and
    9 started her early. She's going to need some extra
    10 time besides the eight working, days to prepare the
    11 transcript.
    12 Right now I'm looking at November 18 for
    13 the transcript. And if you can do it more quickly,
    14 that would be great. Is there any reason that we
    15 need the transcript before we reconvene for
    16 hearings?
    17 MR. DAVIS: (Shakes head.)
    18 MS. SYMONS-JACKSON: (Shakes head.)
    19 THE HEARING OFFICER: Well, then,
    20 November 18th will be the transcript due date. I
    21 think also that it makes sense to finish the
    22 cross-examination of Mr. Chenoweth now so that he
    23 does not have to return to Springfield for
    24 hearings. So if we could continue with that and
    25 get that taken care of, then we will go ahead and
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    1 suspend the hearing. And we will reconvene in
    2 Springfield, and we will renotice in the Rock
    3 Island area. But it will just notice that the
    4 hearing is in Springfield.
    5 Is there anything further that needs to
    6 be taken care of on the record?
    7 Mr. Northrup, I did agree to let you
    8 depose whatever witness the attorney general's
    9 office decides that they are going to use to
    10 testify.
    11 MR. DAVIS: Over our objection.
    12 THE HEARING OFFICER: Over your
    13 objection.
    14 MR. NORTHRUP: Do you know whether
    15 that will be one or two?
    16 MS. SYMONS-JACKSON: We don't know
    17 yet.
    18 THE HEARING OFFICER: Okay. Let's
    19 proceed then. Are you done with direct?
    20 MR. NORTHRUP: Yes.
    21 THE HEARING OFFICER: Okay.
    22 Ms. Symons-Jackson or Mr. Davis, I don't know who
    23 is --
    24 MS. SYMONS-JACKSON: I'll be doing
    25 cross-examination.
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    1 CROSS-EXAMINATION
    2 BY MS. SYMONS-JACKSON:
    3 Q. Mr. Chenoweth, first of all, one comment
    4 you made at the beginning of your direct. I know
    5 it seems like it's been a long time ago now.
    6 You talked about the alternative daily
    7 cover that the landfill is using as an alternate
    8 daily cover for the soil.
    9 A. Yes.
    10 Q. When did the facility first receive a
    11 permit to use that as an alternate daily cover?
    12 A. That I cannot recollect.
    13 Q. And how long have you employed at the
    14 landfill?
    15 A. About -- rough guess, four-and-a-half
    16 years, I think.
    17 Q. And have they been using the alternate
    18 daily cover for each of those four-and-a-half
    19 years?
    20 A. No. It started after -- after I was
    21 employed there. I do believe that Nicky was the
    22 one that first looked into it and got the permit
    23 for it.
    24 Q. And you are referring to Nicky Hute?
    25 A. That's correct.
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    1 Q. Who is an engineer for the landfill?
    2 A. I'm not real sure on what her position
    3 is.
    4 Q. Is that H-U-T-E, her last name?
    5 A. Her name has changed. She has married
    6 since, and I don't know what her new married name
    7 is. I apologize for that.
    8 Q. I just wanted to identify who we were
    9 talking about.
    10 A. Okay. Yes.
    11 Q. Now, Mr. Chenoweth, have you had
    12 experience applying both the six inches of soil
    13 material as daily cover and the alternate daily
    14 cover?
    15 A. Yes, I have.
    16 Q. And isn't it true that the alternate
    17 daily cover is a lot easier to apply?
    18 A. Without a doubt, it is.
    19 Q. Mr. Chenoweth, I do want to talk about
    20 your site inspection reports that you perform at
    21 the Watts landfill. You performed quite a number
    22 of them.
    23 Do you recall when you first started
    24 performing those site inspections?
    25 A. That's a tough one. I'm just going to
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    1 take a rough guess of '93. Summer. Fall. I'm not
    2 real sure.
    3 Q. If I suggested to you that it was, in
    4 fact, August, I believe, 30th of 1993, does that
    5 sound accurate to you?
    6 A. I guess. It would be fine.
    7 Q. And do you recall why you began
    8 conducting these site inspections?
    9 A. I was requested by the office to do
    10 this. It was -- they said that it's not
    11 necessarily a requirement, that we are just doing
    12 it upon ourselves, and they explained to me why.
    13 And I understand why.
    14 It's been official to myself, my job.
    15 This way I know the landfill like the back of my
    16 hand. I know where the problems are, where they
    17 are not, what needs to be done. And it's a
    18 constant reminder to me. And a lots of times, the
    19 problem may not be able to be fixed that day or
    20 maybe not for three or four days. I can go back
    21 and tell and do so.
    22 Q. Okay. Mr. Chenoweth, are you familiar
    23 with a preliminary injunction order that was
    24 entered by the Sangamon County Circuit Court, cause
    25 No. 92-CH-23, People versus Watts Trucking, Inc.,
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    1 and ESG Watts, Inc., Incorporated?
    2 A. Know nothing about it.
    3 Q. Okay. Has anyone from the Watts landfill
    4 office told you that they are under a court order
    5 to adequately monitor and control leachate?
    6 A. No, they have not.
    7 Q. So that was not a reason they gave you
    8 for starting these site inspections?
    9 A. That was not one of the reasons they gave
    10 me, no.
    11 Q. Now, Mr. Chenoweth, I've taken a look at
    12 all your site inspection reports. And according to
    13 those reports, would you agree that when you detect
    14 a leachate seep, for example, that the remedy you
    15 perform for that leachate seep is typically the
    16 same remedy each time?
    17 A. That's correct.
    18 Q. And I think you testified earlier that
    19 that remedy is to cover the area with a clay cap?
    20 A. That's correct.
    21 Q. And compact the area?
    22 A. That's correct.
    23 Q. Okay. Now, the same thing with regard to
    24 any odors that you might detect at the landfill.
    25 Would you agree that when you detect an odor, that
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    1 the remedy you employ is the same remedy each time?
    2 A. Yes. That's correct.
    3 Q. And the remedy that you employ is again
    4 to cover the area with a clay cap and compact the
    5 area?
    6 A. That is correct. The majority of the
    7 time, but not all of the time.
    8 Q. Okay. What else do you do?
    9 A. At times excavate the area, or I dig it
    10 out. And then where it's dry, and reclay the area
    11 and compact it.
    12 Q. Now, would you -- would you excavate the
    13 area as opposed to just applying the clay cap when
    14 the odors are particularly bad?
    15 A. No. It's generally held to the leachate
    16 seeps.
    17 Q. Okay. So when you talk about excavating,
    18 you are talking about a repair of the -- the
    19 leachate seeps and not the odors?
    20 A. Generally.
    21 Q. Now, talking about the leachate seeps,
    22 would you agree that if we looked through every
    23 single site inspection report, you have prepared
    24 since August of 1993, we would notice recurring
    25 problems with leachate?
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    1 A. Most definitely.
    2 Q. And would you also agree that if we
    3 looked through all of the maps that are attached to
    4 your site inspection reports, we would see that
    5 those recurring problems with leachate tend to
    6 recur in basically the same areas of the landfill?
    7 A. Basically the same area, yes. That's
    8 correct.
    9 Q. And so would you agree, Mr. Chenoweth,
    10 that despite the interim, you may be compacting or
    11 excavating the leachate seep, that does not
    12 permanently fix the problem?
    13 A. It does not permanently fix the problem
    14 short-term.
    15 Q. Now, regarding odor, would you agree that
    16 if we look through all your site inspection
    17 reports, we would notice that odor is also a
    18 recurring problem at the landfill?
    19 A. Yes, it is.
    20 Q. And, Mr. Chenoweth, would you agree that
    21 the odors you have noted at the landfill tend to
    22 recur in basically the same areas time and again?
    23 A. Not always. Sometimes, yes. But not
    24 always.
    25 Q. Have there been occasions where you have
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    1 just been unable to pinpoint the location where the
    2 odor is coming from?
    3 A. Lots of times.
    4 Q. And on those occasions, would it be fair
    5 to say you might characterize that in your
    6 inspection report as odors throughout the entire
    7 landfill?
    8 A. No. I don't believe so. I may just say
    9 the western area or something like that.
    10 Q. Okay. Had there been occasions where you
    11 have noticed odors throughout the entire landfill?
    12 A. No.
    13 Q. Now, if I mentioned to you or represent
    14 to you that if you took a look at the site
    15 inspection report for May 28, 1996, it would, in
    16 fact, indicate that there were odors all through
    17 the landfill area reported?
    18 A. Of what was the date on that again,
    19 please.
    20 Q. May 28 of this year. Please take a look
    21 at the inspection report, if you need to.
    22 A. That may be because of the gas drilling,
    23 I might have said that.
    24 Q. Do you have it more accessible?
    25 A. I've got them right here.
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    1 Q. Here. We have got this thing.
    2 MR. DAVIS: 52.
    3 THE HEARING OFFICER: What?
    4 MR. DAVIS: 52.
    5 THE HEARING OFFICER: I have them.
    6 I just start pulling them out.
    7 MR. NORTHRUP: Date again?
    8 MR. DAVIS: May 28 of '96.
    9 THE WITNESS: May 28th, you said.
    10 BY MS. SYMONS-JACKSON:
    11 Q. Here you go. Did you find it?
    12 A. Yes.
    13 Q. Mr. Chenoweth, can you please -- please
    14 read for the record what you have entered in the
    15 site inspection report for that day?
    16 A. I have problem odors. Location, all
    17 throughout landfill area.
    18 Q. And what do you indicate for corrective
    19 action?
    20 A. Corrective actions, none taken today due
    21 to muddy conditions.
    22 Q. Mr. Chenoweth, do you know when any
    23 corrective actions were taken following this date
    24 to address the odor problems?
    25 A. Not right offhand, no. I cannot say.
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    1 Q. Okay. Now, do you know when the
    2 installation of the gas wells began at the
    3 landfill?
    4 A. I'd have to stop and think. I'm not real
    5 sure. No, I do not recollect when.
    6 Q. Is it possible, Mr. Chenoweth, that the
    7 installation of the gas wells actually began
    8 sometime after?
    9 A. After this, yes.
    10 Q. Okay. You would agree that it was after?
    11 A. Yes.
    12 Q. Okay. Now, since you've got your site
    13 inspection report out there in front of you, do
    14 those go back -- do they date back to February of
    15 1995?
    16 A. September of '95. No, it does not.
    17 Q. Okay. I'm going to hand you a copy of
    18 the February 21st, 1995 site inspection report.
    19 And since I don't have a copy of it in front of me,
    20 can you tell me what it says for the first problem
    21 that day?
    22 A. Problem No. 1, odors. Large problem
    23 area.
    24 Q. And what was the corrective action taken
    25 on that day?
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    1 A. Corrective action, try to bulldoze dirt
    2 over area. Wouldn't last long because of ground
    3 conditions.
    4 Q. And where was the location of that odor
    5 problem?
    6 A. Do you want me to give you the location
    7 according to the coordinates I wrote down on here
    8 or just in general off of the topo?
    9 Q. Why don't you give me both.
    10 A. Okay. Location was north 50000 to north
    11 50500, east 48500 to east 49000.
    12 Q. And what general location is that at the
    13 landfill?
    14 A. Okay. Okay. That would be the
    15 midsection of the western slope.
    16 Q. Okay. I'm going to ask you to set that
    17 inspection report aside, and I'll hand you the one
    18 for the next day, February 22, '95.
    19 What problems have you noted for that
    20 day?
    21 A. Okay. Problem No. 1, it says odor,
    22 No. 1. Want me to give you the location?
    23 Q. Well, just tell me, is it the same
    24 location or a different location from the previous
    25 day?
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    1 A. It is a different location.
    2 Q. Okay. And did you check the location
    3 from February 21, 1995 during this inspection
    4 report on the next day?
    5 A. Too far back to tell if I did or not.
    6 Most generally, getting to this location, I would
    7 have to walk by that area. I probably looked at it
    8 as a guess. It's a long time ago. I do not know.
    9 Q. Okay. Now, isn't it fair to say that you
    10 were not able to complete remedy of the odor
    11 problem on that date due to whether? Is that
    12 what's indicated on your report?
    13 A. On which? On this one here, February
    14 22nd?
    15 Q. Yes.
    16 A. Because of weather and landfill
    17 conditions, could not get to it to fix. That is
    18 correct.
    19 Q. Mr. Chenoweth, do you recall when you
    20 were able to get to those problems to correct them?
    21 A. Like I said, I really couldn't answer
    22 that, because it was a long time ago. And all I
    23 know is I get to these problems as soon as I can
    24 with weather conditions.
    25 Q. Okay. Now, I've got in front of me an
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    1 inspection report from April 28, 1995. And on this
    2 inspection report, actually a number of them, April
    3 24, 1995; April 25, 1995; and April 28, 1995. You
    4 indicate retractions from February and March.
    5 Okay.
    6 Does that mean that these were the times
    7 when you were able to go back and correct the
    8 problems you noted in February and March?
    9 A. My assumption would be that, yes.
    10 Q. And what would be the reason that you had
    11 not corrected those problems for that month- to
    12 two-month time period?
    13 A. It's hard to say. I couldn't answer
    14 being that far back.
    15 Q. Have there been occasions, Mr. Chenoweth,
    16 where problems may have gone uncorrected at the
    17 landfill for a various number of reasons for longer
    18 than a week?
    19 A. It all depends on by -- what you mean by
    20 a problem.
    21 Q. A leachate seep or an odor or an
    22 erosional rill, a problem that you have.
    23 A. I would say so, yes.
    24 Q. What about for longer than a month?
    25 A. Off the top of my head, that's -- I can't
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    1 recollect anything going maybe that long.
    2 Q. Okay. Except for the ones we have got
    3 here in front of us right now?
    4 A. Once again, all depends on maybe -- like
    5 I said, if it's wintertime, icy conditions and
    6 stuff like that, and it's on a slope area, I will
    7 not send any heavy equipment back there. So there
    8 is a small possibility it will go that long.
    9 Q. So during periods of bad weather, repairs
    10 are not made at the facility?
    11 A. If it's-- if it can be -- if I feel that
    12 it is safe for equipment and a person to get back
    13 there, yes. If I feel that it is not, I will not
    14 do it.
    15 Q. Can you look through the inspection
    16 reports you have in front of you and find an
    17 inspection for June 14th of this year, 1996?
    18 A. Okay.
    19 Q. Can you read for us what you indicate as
    20 the problem for the problems on that date?
    21 A. Same old problems, no new ones.
    22 Q. Okay. What are you talking about when
    23 you talk about same old problems?
    24 A. I would imagine I would have to look back
    25 through here to see what I was talking about.
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    1 Q. Okay. Would it be fair?
    2 A. 'Cause I didn't know this stuff was going
    3 to come out like this. A lot of times, I write
    4 things just so I know.
    5 Q. Would it be fair to say, Joe, that -- and
    6 I think you've testified to this already -- that
    7 the same old problems would include leachate and
    8 odor and erosion?
    9 A. In a way, yes. What I mean by it is
    10 maybe I haven't gotten to that one problem as of
    11 this date. Like it might have been an erosion, and
    12 still to this day that problem is still there.
    13 Q. Now, when you indicate on your inspection
    14 reports, as you have done on some of them, if there
    15 are no new problems today?
    16 A. That's correct.
    17 Q. Does that necessarily -- or strike that.
    18 That does not necessarily mean that there
    19 aren't any problems at the landfill, just that
    20 there aren't any new ones?
    21 A. That is correct.
    22 Q. There might be some problems that you had
    23 noted during some prior inspections, that due to
    24 whether or some other reason, you weren't able to
    25 get to?
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    1 A. That is correct.
    2 Q. Okay. Now, Mr. Chenoweth, have there
    3 been times when you have not had adequate equipment
    4 at the landfill to address any of these problems?
    5 A. I would say it all depends on what do you
    6 mean by time. Two weeks, three weeks, half an
    7 hour, an hour. There are times that we have been
    8 short for an hour or two hours or something like
    9 that.
    10 Q. Short on equipment?
    11 A. Short on equipment for an hour or two,
    12 yes.
    13 Q. Now, Mr. Chenoweth, do you -- is it
    14 frustrating to you having to go back and correct
    15 the same problems day after day at the landfill?
    16 A. It's a challenge. It's got a lot of
    17 pride there. Not really. At times. At times.
    18 But overall, no. It's my job, and it has to be
    19 kept care of.
    20 Q. Now, we were talking about the vegetative
    21 cover earlier. Charlie was asking you some
    22 questions regarding, I think, percentage of it --
    23 A. Uh-huh.
    24 Q. -- of the nonactive area that is covered
    25 by vegetation. And you indicated that one of the
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    1 areas that is not covered by vegetation is the
    2 top --
    3 A. Correct.
    4 Q. -- of the inactive area?
    5 A. Yes.
    6 Q. Do you know when that final lift of
    7 refuse was deposited in that area?
    8 A. I was employed there at the time. I
    9 really can't answer that.
    10 Q. Okay. Now, I don't want to get an exact
    11 date from you. But if you could give me an
    12 estimate. Was it within a year of you starting
    13 your employment at the landfill?
    14 A. No. I'm going to guess no. And that's a
    15 guess.
    16 Q. Okay. Do you know which landfill
    17 employee might know when the refuse was placed in
    18 that area?
    19 A. The last -- you mean the last finals?
    20 Q. Right.
    21 A. You mean like the next time you talk to
    22 him or call him right now, they will. No. I can
    23 find out myself. But there is a lot of people with
    24 that knowledge. But they would have to look and
    25 see.
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    1 Q. Okay. Do you think Tom Jones would have
    2 that knowledge?
    3 A. He would have that knowledge. Whether he
    4 would have it on hand right today, I don't know.
    5 Q. Okay.
    6 A. Maybe more than I would.
    7 Q. What about Steve Grothus, would he know?
    8 A. Less than Tom or me maybe. No offense,
    9 Steve. No offense, Steve. You be sure.
    10 MR. NORTHRUP: I'll tell him.
    11 THE WITNESS: No offense. You be
    12 sure and tell him
    13 BY MS. SYMONS-JACKSON:
    14 Q. Do you remember -- your site inspections,
    15 do you perform any storm water prevention measures?
    16 A. Yes, I do.
    17 Q. Can you tell me what those are?
    18 A. Well, such as erosions and silt fences.
    19 We will repair the erosions and silt fences. We
    20 have built new terraces on the north face, which
    21 surprised -- it surprised me that Ron forgot about
    22 that, because that was probably in the last
    23 year-and-a-half that we built a new terrace for
    24 storm water direction on the north face. That's
    25 about it for right now all I can remember.
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    1 Q. Do you recall when that was done?
    2 A. No, I do not. Probably, like I said, in
    3 the last year-and-a-half.
    4 Q. Okay.
    5 A. Maybe sooner. Maybe later.
    6 Q. Mr. Chenoweth, would you agree that the
    7 facility despite these measures is still
    8 experiencing problems about storm water runoff?
    9 A. Could you say that again?
    10 Q. Sure. Despite the measures you just
    11 talked about, would you agree that the facility is
    12 still having problems with storm water runoff?
    13 A. On certain -- on certain rainy days, I
    14 would say yes. On other days, not so much.
    15 Q. Now, I asked you about leachate and odor,
    16 but I didn't specifically ask you about erosion.
    17 A. Uh-huh.
    18 Q. If we look through all your site
    19 inspection reports, would we find that erosion is a
    20 problem that is repeatedly being addressed at the
    21 landfill?
    22 A. Yes.
    23 Q. Okay. Would you gee if we look through
    24 all your inspection reports that the portions of
    25 the landfill that experience problems with the
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    1 erosion are typically the same portion of the
    2 landfill time and time again?
    3 A. Not always, no. There are certain spots
    4 that are problems, yes. But other ones come and
    5 go.
    6 Q. Okay. But there are certain locations at
    7 the facility that do pose erosional problems time
    8 and time again?
    9 A. Yes.
    10 MS. SYMONS-JACKSON: Okay. I think
    11 that's all the cross-examination I have for you.
    12 Thank you, Mr. Chenoweth.
    13 THE HEARING OFFICER: Redirect.
    14 MR. NORTHRUP: Yeah. A couple of
    15 quick follow-ups.
    16 REDIRECT EXAMINATION
    17 BY MR. NORTHRUP:
    18 Q. Going back to the May 28th, '96 site
    19 inspection report. I think that was the one that
    20 said odors throughout the entire landfill.
    21 A. Yes.
    22 Q. Do you recall that particular day?
    23 A. Yes, I do. For some odd reason, I do
    24 believe -- I'm not -- I'm just going to take a
    25 guess. Maybe Ron Mehalic had an inspection
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    1 probably the day after or something. I'm not real
    2 sure. But I just remember -- for some odd reason,
    3 I don't know why, I had gas leaks popping up all
    4 over the place. And I don't know why, and it took
    5 me -- it took me a while to get them all fixed.
    6 Q. Okay. Let's see. Why don't you take a
    7 look at -- you would -- or were you asked some
    8 questions about the April 24, 25 and 28 inspection
    9 reports that had on there retraction from February
    10 and March.
    11 A. Okay.
    12 Q. Do you recall that?
    13 A. I remember them asking that, yes.
    14 Q. Okay. What -- again, what does that mean
    15 retraction?
    16 A. That means going back and repairing some
    17 problems I wasn't able to get to at that time for
    18 whatever reason.
    19 Q. Okay. Do you recall if -- well, let me
    20 scratch that.
    21 In the retractions, did they go back to
    22 these February 21 and February 22 in the site
    23 inspection reports?
    24 A. I'm assuming that it does. 100 percent,
    25 I cannot say. It's been a long time ago.
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    1 Q. Do you recall, then, from February 21st
    2 and 22nd to these April dates, it was a constant
    3 odor problem?
    4 A. That I can't recall. Long time ago.
    5 Q. Have you ever not taken corrective action
    6 and an odor problem within one week's time of
    7 discovering it?
    8 A. The only time is weather, so I would have
    9 to answer your question, I have waited longer than
    10 a week because of weather conditions.
    11 Q. And, again, that was primarily -- that
    12 would have been because of safety concerns?
    13 A. Always safety concerns comes first with
    14 me.
    15 Q. Now, on the June 14th, '96 inspection, I
    16 think there was a notation, same old problems.
    17 A. That's going to haunt me, ain't it?
    18 Q. Okay.
    19 A. Okay.
    20 Q. Okay. Could that -- could that be a
    21 reference to one problem?
    22 A. It could be.
    23 Q. You just don't know?
    24 A. I just don't know.
    25 Q. Do you take a lot of pride in the work
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    1 you do?
    2 A. Yes, I do. Very much so.
    3 MR. NORTHRUP: That's all I've got.
    4 THE HEARING OFFICER: Anything
    5 else?
    6 MS. SYMONS-JACKSON: No.
    7 THE HEARING OFFICER: Okay. Before
    8 we recess, I'd like to make a credibility statement
    9 about the witnesses that we have had for the last
    10 two days while they are all still fresh in my
    11 mind.
    12 MR. NORTHRUP: Can I address that
    13 issue?
    14 THE HEARING OFFICER: Yes.
    15 MR. NORTHRUP: The credibility. I
    16 don't know -- I know with respect to Mr. Whitley,
    17 there were a couple of things that I want to make
    18 sure you remember.
    19 First, we had asked Mr. Whitley if he
    20 felt Jim Watts had a vendetta against him. He said
    21 no. I think that was contradicted by the
    22 statements of Mr. Mehall.
    23 Also Mr. Whitley indicated that he was
    24 not a member of an organization that -- whose
    25 purpose it was to fight the landfill. That
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    1 statement was contradicted by both Jerry Martens
    2 and Mr. Mehall. So --
    3 THE HEARING OFFICER: Okay.
    4 Mr. Davis.
    5 MR. DAVIS: Yes. Thank you. I've
    6 done several enforcement hearings before the Board
    7 and have yet to see that this matter is subject to
    8 argument. Something that the hearing officer does,
    9 and I don't believe it's appropriate to interject
    10 these thoughts.
    11 And having had this put on the table, if
    12 you will, I would suggest that Mr. Mehall didn't
    13 say that.
    14 THE HEARING OFFICER: Okay. Well,
    15 before we get into a lengthy argument, I find that
    16 all of the witnesses were credible. The statements
    17 Mr. Northrup, which you have referred to, go to the
    18 weight of his testimony. The Board can believe or
    19 disbelieve any witness. What they are really
    20 asking me to do is look at the body language and
    21 how I perceive them, the witnesses, because they
    22 can't be here. If somebody is -- you know, really
    23 looks like there is a problem.
    24 So the witnesses were credible for the
    25 hearings officer's purposes. And the weight is up
    IOWA-ILLINOIS REPORTING
    Moline, IL 61265 309/764-1171

    647
    1 to the Board.
    2 Are there any other matters that we need
    3 to discuss before our we recess the record?
    4 Okay. I'd just like to make a statement
    5 thanking both sides for being incredibly
    6 professional and organized and moving through this
    7 in a timely manner. This is a big case with a lot
    8 at stake for everyone, and I know there has been a
    9 lot of hard work that's gone into it. And
    10 everybody has really done a great job. And I
    11 will -- let's recess, and I will see you all in
    12 Springfield.
    13 (Proceedings concluded at 6:12 p.m.)
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    IOWA-ILLINOIS REPORTING
    Moline, IL 61265 309/764-1171

    648
    1
    2 STATE OF ILLINOIS )
    ) ss.
    3 COUNTY OF ROCK ISLAND )
    4
    I, Victoria Fickel, a Notary Public, in
    5 and for the County of Rock Island, in the State of
    Illinois, do hereby certify:
    6
    7 That the witness in the foregoing
    deposition named was present at the time and place
    8 therein specified;
    9
    That the said proceeding was taken before
    10 me as a Notary Public at the said time and place
    and was taken down in shorthand writing by me;
    11
    12 That I am a Certified Shorthand Reporter
    of the State of Illinois, that the said proceeding
    13 was thereafter under my direction transcribed into
    computer-aided transcription, and that the
    14 foregoing transcript constitutes a full, true and
    correct report of the proceedings which then and
    15 there took place;
    16
    That I am a disinterested person to the
    17 said action.
    18
    IN WITNESS WHEREOF, I have hereto
    19 subscribed my hand and affixed my official seal
    this 16th day of November, 1996.
    20
    21
    22 _______________________________
    Victoria Fickel, Notary Public
    23 In and For the County of Rock Island
    State of Illinois
    24 C.S.R. License No. 84-003220
    25
    IOWA-ILLINOIS REPORTING
    Moline, IL 61265 309/764-1171

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