00-15s090500

1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

3 In the Matter of: )

4 Petition of Heritage )

5 Environmental Services, Inc. )

6 for an Adjusted Standard )

7 35 Ill. Adm. Code 702.126(d)(1) )

9 CASE # AS 2000-015

11 TRANSCRIPT OF PROCEEDINGS had at

12 the hearing of the above-entitled matter, taken

13 stenographically by Cheryl L. Sandecki, CSR,

14 before JOHN C. KNITTLE, Hearing Officer, held at

15 100 West Randolph, Room 11-512, Chicago, Illinois,

16 on the 5th day of September, 2000, at the hour of

17 10:00 a.m.

L.A. REPORTING (312) 419-9292

1 PRESENT:

2 HEARING TAKEN BEFORE:

3 Illinois Pollution Control Board

100 West Randolph Street

4 Room 11-512

Chicago, Illinois 60601

5 (312) 814-3620,

BY: MR. JOHN C. KNITTLE

7 ----

CHUHAK & TECSON, P.C.

9 BY: MR. DANIEL J. BIEDERMAN

MS. JULIE A. DOYLE

10 225 West Washington Street, Suite 1300

Chicago, Illinois 60606

11 (312) 444-9300,

12 appeared on behalf of Heritage

Environmental Services, LLC;

ILLINOIS ENVIRONMENTAL PROTECTION

14 AGENCY

BY: MR. ROBERT J. SCHERSCHLIGT and

15 MR. MARK V. GURNIK

1021 North Grand Avenue East

16 P.O. Box 19276

Springfield, Illinois 62794-9276

17 (217) 782-5544,

18 appeared on behalf of the

Illinois Environmental Protection

19 Agency.

20 ALSO PRESENT: Ms. Alisa Liu, Illinois Pollution

Control Board Engineer

Miss Emilea Lindgren

L.A. REPORTING (312) 419-9292

1 I N D E X

2 PAGE

3 OPENING STATEMENT

By Ms. Doyle 8

4 By Mr. Scherschligt 11

5 WITNESS

6 CARLTON LOWE

7 Direct by Mr. Biederman 13

Cross by Mr. Scherschligt 45

8 Redirect by Mr. Biederman 69

Recross by Mr. Scherschligt 77

10 GARY F. LINDGREN

11 Direct by Mr. Biederman 81

Cross by Mr. Scherschligt 101

CLOSING ARGUMENT

By Mr. Biederman 108

14 By Mr. Scherschligt 114

By Mr. Biederman (Rebuttal) 118

16 E X H I B I T S

PAGE

17 Petitioner's Exhibit Nos.

18 1 12

2 107

L.A. REPORTING (312) 419-9292

1 HEARING OFFICER KNITTLE: My name is John

2 Knittle. I am chief hearing officer with the

3 Illinois Pollution Control Board.

4 We are here for a hearing today in

5 Pollution Control Board docket number Adjusted

6 Standard 2000-15 entitled in the matter of

7 Petition of Heritage Environmental Services

8 Incorporated for an adjusted standard from

9 35 Illinois Administrative Code 702.126(d)(1).

10 It is approximately 10:00 a.m. on

11 September 5th, 2000. I want to note for the

12 record that there are no members of the public

13 here.

14 Before we get started on the hearing

15 proper and before I go off on my prehearing

16 statements that I have to make, we have had a

17 request from the petitioner to delay this matter

18 for 30 minutes. We have got Ms. Doyle here,

19 correct?

20 MS. DOYLE: Correct.

21 HEARING OFFICER KNITTLE: Is that correct,

22 Ms. Doyle, you are requesting a 30-minute

23 continuance due to an unavoidable delay, if I am

24 not mistaken?

L.A. REPORTING (312) 419-9292

1 MS. DOYLE: Yes, that's correct.

2 HEARING OFFICER KNITTLE: Do we have any

3 objection on that from the Environmental

4 Protection Agency?

5 MR. GURNIK: No objection.

6 HEARING OFFICER KNITTLE: In light of the

7 request and the lack of objection, we are just

8 going to continue this off the record for 30

9 minutes and we will meet back here at 10:30 and

10 start up again.

11 (Short recess taken.)

12 HEARING OFFICER KNITTLE: We are back on the

13 record. It is approximately 10:30 a.m.

14 As I have already stated, my name is

15 John Knittle with the Illinois Pollution Control

16 Board. It is September 5th of the year 2000.

17 We had a brief delay in the beginning.

18 We had a request for a 30-minute continuance,

19 which we granted, no objection from the Illinois

20 Environmental Protection Agency.

21 As I stated, this is a hearing on

22 Adjusted Standard 2000-15 in the matter of

23 Petition of Heritage Environmental Services, Inc.,

24 for an adjusted standard from 35 Illinois

L.A. REPORTING (312) 419-9292

1 Administrative Code 702.126(d)(1).

2 We are going to run this hearing

3 pursuant to 102(j) of the Board's regulations,

4 which provides for hearings for regulatory

5 matters. We are running it that way because this

6 is a RCRA matter. It is seeking adjusted standard

7 of 702.126 which falls in the specified

8 regulations in 106.410.

9 So that being said, I note there are no

10 members of the board being present here, other

11 than Alisa Liu, and your title, ma'am?

12 MS. LUI: Environmental scientist and

13 professional engineer.

14 HEARING OFFICER KNITTLE: She is with the

15 Board's technical staff. I don't think there are

16 any members of the public here. Are we going to

17 count her?

18 MR. BIEDERMAN: Sure.

19 HEARING OFFICER KNITTLE: That is one of the

20 witnesses' daughters, correct?

21 MR. LINDGREN: Emilea Lindgren.

22 HEARING OFFICER KNITTLE: Does she want to

23 provide any public comment here today?

24 MR. LINDGREN: No.

L.A. REPORTING (312) 419-9292

1 HEARING OFFICER KNITTLE: Aside from one of

2 the witnesses' daughters, there are no members of

3 the public present. Everyone else is affiliated

4 with the parties. If there were members of the

5 public, they, of course, would be able to provide

6 public comment and we would allow for that at the

7 end of cases-in-chief. We may also allow a

8 written public comment period, which we will

9 discuss when we discuss briefing schedules.

10 Could we have the parties starting with

11 the petitioner introduce themselves, then we will

12 get started?

13 MR. BIEDERMAN: My name is Daniel Biederman

14 on behalf of Heritage.

15 MS. DOYLE: My name is Julie Doyle on behalf

16 of Heritage as well.

17 HEARING OFFICER KNITTLE: Thank you.

18 MR. GURNIK: Mark Gurnik on behalf of the

19 Illinois EPA.

20 MR. SCHERSCHLIGT: And Robert Scherschligt

21 also Illinois EPA.

22 HEARING OFFICER KNITTLE: And Mr. Biederman,

23 I think you wanted to indicate that there were two

24 members of Heritage Environmental Services here.

L.A. REPORTING (312) 419-9292

1 MR. BIEDERMAN: Actually, here with us today

2 is Mr. Gary Lindgren from Heritage Environmental

3 Services. And also present is Mr. Carlton Lowe on

4 behalf of the Metropolitan Water Reclamation

5 District of Greater Chicago.

6 I will refer to that entity throughout

7 this morning as the District.

8 HEARING OFFICER KNITTLE: Okay. All right.

9 Let's get started.

10 Mr. Biederman, do you have an opening

11 statement that you want to provide?

12 MR. BIEDERMAN: We do. And I would like my

13 colleague, Ms. Doyle, to provide that opening.

14 HEARING OFFICER KNITTLE: Ms. Doyle?

15 OPENING STATEMENT

16 BY MS. DOYLE:

17 To summarize, Heritage is the owner and

18 operator of a RCRA facility. The District owns

19 the real property upon which the facility is

20 located and, therefore, is required to sign the

21 RCRA permit.

22 The District is a governmental entity.

23 It does not have the statutory authority to sign

24 the permit.

L.A. REPORTING (312) 419-9292

1 Heritage today is seeking an adjusted

2 standard from 35 Illinois Administrative Code

3 702.126(d)(1). Section 702.126(d)(1) is derived

4 from 40 CFR 270.11. For the remainder of this

5 hearing, we will refer to this regulation as the

6 certification requirement.

7 Section 28.1 of the Illinois

8 Environmental Protection Act allows the Board to

9 adopt an adjusted standard if the factors relating

10 to the applicant are substantially different from

11 those relied upon by the Board in adopting the

12 regulation and that those factors justify an

13 adjusted standard.

14 The Board must also examine health

15 effects and consistency with federal laws. In

16 determining whether an adjusted standard is

17 justified, the Board must act within the

18 boundaries of its delegated authority as defined

19 by Section 27(a) of the Environmental Protection

20 Act. Pursuant to 27(a), the Board should be

21 reasonable in its decision making, taking into

22 account the use factors relative to individual

23 petitions.

24 As I have stated, the District is a

L.A. REPORTING (312) 419-9292

1 governmental entity vested with limited, very

2 distinct powers. It does not have the statutory

3 authority to sign the certification. Neither the

4 Board, nor the U.S. EPA considered an entity such

5 as the District when it enacted the certification

6 requirement. For this reason the adjusted

7 standard sought by Heritage was justified.

8 Furthermore, the adjusted standard

9 Heritage seeks is consistent with federal law

10 based on the decision by the Ninth Circuit in the

11 case of Systech versus U.S. EPA.

12 Finally, the adjusted standard, if

13 granted, will not result in any adverse effects to

14 health or the environment.

15 Based on all the documents of record and

16 the testimony that Mr. Lowe and Mr. Lindgren will

17 provide and comments by Mr. Biederman and myself,

18 Heritage urges the Board to grant Heritage the

19 adjusted standard it is seeking today. Thank you.

20 HEARING OFFICER KNITTLE: Thank you,

21 Ms. Doyle.

22 Mr. Gurnik, do you have an opening

23 statement?

24 MR. SCHERSCHLIGT: Just briefly, Bob

L.A. REPORTING (312) 419-9292

1 Scherschligt, Illinois EPA.

2 OPENING STATEMENT

3 BY MR. SCHERSCHLIGT:

4 The Agency will be filing a brief in

5 this matter. But just very briefly, we would

6 submit that the factors that the Board and that

7 the U.S. EPA relied upon is that there are no

8 factors unique or unique to MWRD or Heritage that

9 would justify an adjusted standard in this

10 particular case. Specifically, I would cite to

11 the level of justification in Section 28.1(c)(1)

12 of the Illinois Environmental Protection Act.

13 And further, the Agency submits that

14 the adjusted standard as proposed in the petition

15 is, in fact, inconsistent with federal law.

16 And having said that, I have nothing

17 further.

18 HEARING OFFICER KNITTLE: Thank you,

19 Mr. Scherschligt.

20 I do want to note for the record, and

21 this is my error, Ms. Doyle handed me beforehand

22 documents included in the record. We went over

23 this off the record, and we are of the opinion

24 that all of these documents are included in the

L.A. REPORTING (312) 419-9292

1 Board's record to this point. Ms. Doyle,

2 Mr. Biederman, do you want to make this an

3 exhibit?

4 MR. BIEDERMAN: I would like that, yes.

5 HEARING OFFICER KNITTLE: We have marked this

6 now as Petitioner's No. 1. Just for the record

7 the Illinois Environmental Protection Agency did

8 not have an objection to this, correct?

9 MR. SCHERSCHLIGT: Correct.

10 HEARING OFFICER KNITTLE: And you are

11 offering this into evidence?

12 MR. BIEDERMAN: Yes.

13 HEARING OFFICER KNITTLE: This will be

14 accepted as Petitioner's No. 1. And you may now

15 proceed with your case-in-chief.

16 (Whereupon document so offered

17 was received in evidence as

18 Petitioner's Exhibit No. 1.)

19 MR. BIEDERMAN: Mr. Knittle, I would like to

20 call my first witness, and that is Mr. Carlton

21 Lowe of the District, who is seated to my left.

22 HEARING OFFICER KNITTLE: Thank you.

23 Mr. Lowe, we are going to have you sworn in by the

24 court reporter.

L.A. REPORTING (312) 419-9292

1 (Witness duly sworn.)

2 HEARING OFFICER KNITTLE: Mr. Biederman.

3 CARLTON LOWE,

4 called as a witness herein on behalf of Heritage

5 Environmental Services, LLC, having been first

6 duly sworn, was examined and testified as follows:

7 DIRECT EXAMINATION

8 BY MR. BIEDERMAN:

9 Q. Good morning, sir. Would you state

10 your name for the record, please?

11 A. My name is Carlton Lowe, L-o-w-e.

12 Q. Mr. Lowe, by whom are you employed?

13 A. The Metropolitan Water Reclamation

14 District of Greater Chicago.

15 Q. So that the record is clear on this

16 point, is it acceptable if I refer to that entity

17 as the District throughout this morning?

18 A. Yes, that would be fine.

19 Q. If I refer to it as the District, you

20 will know who I am referring to?

21 A. That's correct.

22 Q. Thank you.

23 Sir, how long have you been employed by

24 the District?

L.A. REPORTING (312) 419-9292

1 A. Approximately ten years, since

2 February 4th, 1991.

3 Q. Mr. Lowe, what is your current position

4 with the District?

5 A. My current title is principal assistant

6 attorney.

7 Q. Could you briefly state your

8 educational background for us today?

9 A. I have my Bachelor's degree from

10 Illinois Wesleyan University. I have my juris

11 doctorate degree from Northwestern University.

12 And I am licensed to practice law in the state of

13 Illinois.

14 Q. Can you just briefly describe for us

15 your duties and responsibilities as a District

16 attorney?

17 A. Well, I am in charge of what we refer

18 to as the asset management section of the real

19 estate division of the law department. My primary

20 duties and responsibilities are to supervise and

21 oversee the leasing of District real estate to

22 private parties and municipal corporations.

23 Q. Can you give us, Mr. Lowe, some

24 background information regarding the District's

L.A. REPORTING (312) 419-9292

1 history and the services that it performs for the

2 general public?

3 A. Okay. Well, the District was created

4 by the Illinois General Assembly in 1889, I think

5 it is, to protect the water quality of Lake

6 Michigan. We performed that responsibility by

7 treating and managing waste water. We cover

8 approximately -- or our area of responsibility is

9 approximately 850 square miles, which is just

10 about all, but not quite all in Cook County.

11 We have pretty close to 600 miles of

12 intersecting sewers. We manage and control the

13 deep tunnel by which we store and treat waste

14 water. We own real estate in Fulton County, which

15 we also use in conjunction with our corporate

16 purposes.

17 But what we primarily do is to treat

18 waste water to make sure that the drinking water

19 quality is not compromised in any way.

20 I should also add that many years ago

21 in order to accomplish this purpose, the District

22 with the assistance of the Army Corps of Engineers

23 dug a very complicated canal interconnecting

24 canals and channels by which we disperse this

L.A. REPORTING (312) 419-9292

1 waste water.

2 In the process of building those canals

3 and channels, we condemned and acquired more land

4 than was absolutely necessary for the channels.

5 So in addition to managing and controlling the

6 waste water through the channels, we owned a great

7 deal of real estate on both sides of the channel.

8 The general assembly authorized the

9 District in situations where it owned land and was

10 not required for its corporate purposes, it could

11 make that land available for lease to private and

12 public entities pursuant to a specific statute

13 which set forth how these lands are to be made

14 available.

15 So my section pretty much take cares of

16 leasing lands in accordance with our leasing

17 statute.

18 Q. Is it fair to say, Mr. Lowe, then that

19 the Board's authority is limited in its scope in

20 connection with the properties that it leases?

21 A. That is correct.

22 Q. Mr. Lowe, are you familiar with the

23 facility located at 15330 Canal Bank Road in

24 Lemont, Illinois?

L.A. REPORTING (312) 419-9292

1 A. Yes, I am.

2 Q. And can you describe for us how you are

3 familiar with that facility?

4 A. Well, as I indicated before, one of my

5 duties and responsibilities is to manage the

6 leasing of District property to third parties.

7 This particular site became part of my portfolio

8 back in the early 1990s when one of the -- an

9 entity that was occupying District property had

10 requested that we approve an assignment of a

11 lease. So that is how this particular file first

12 came to my attention.

13 Q. Describe for us the decisions the --

14 the District's decision to lease the property to

15 Heritage.

16 A. Okay, I am not quite sure when you say

17 describe.

18 Q. You indicated in your testimony that

19 there was a particular entity that approached the

20 District to assign the lease to the District.

21 A. Yes.

22 Q. Can you give us more information on

23 that assignment and the District's decision in

24 accepting the assignment of that lease?

L.A. REPORTING (312) 419-9292

1 A. Okay. The particular property in

2 question, if my recollection serves me correctly,

3 was leased -- about 65 acres was leased to an

4 entity called the Lemont Industrial District back

5 in the 1960s for a 99-year lease.

6 In 1980 the Lemont Industrial District

7 subleased approximately, I think, about 17 acres

8 to Heritage Environmental Services. In the 1990s

9 we were approached by the lessee, Lemont

10 Industrial District, as well as the sublessee,

11 Heritage, about the possibilities of Heritage

12 entering into direct privy for the occupancy of

13 that property with the District by the assignment

14 or the spinning off that portion of the leasehold

15 directly to Heritage so they can be in direct

16 privy with the District.

17 Q. Mr. Lowe, do you know when the current

18 lease expires?

19 A. Yes. It was a 99-year lease, so it

20 expires in 2060, I think.

21 Q. Mr. Lowe, can you describe for us the

22 District's understanding of the general nature of

23 the operations at the facility?

24 A. Yes. It is our understanding that

L.A. REPORTING (312) 419-9292

1 Heritage treats and stores hazardous waste

2 materials at the -- at that particular facility.

3 Q. And what is the basis of your

4 understanding of Heritage's activity on this

5 property?

6 A. I guess it is two-fold. It is

7 information that has been provided to us by

8 Heritage before agreeing to assign the lease.

9 Naturally, we made sure we were aware what they

10 were doing at the property. And also we have our

11 own police department and our own real estate

12 investigator who periodically patrol our lease

13 properties.

14 So based upon information that Heritage

15 has provided us and our own observations, we are

16 comfortable that that is what they do with that

17 particular site.

18 Q. Mr. Lowe, are you personally familiar

19 with the lease that expires in approximately 2060?

20 A. Yes, I am.

21 Q. And you have reviewed a copy of that

22 lease?

23 A. Yes.

24 Q. Okay. Did you bring a copy of that

L.A. REPORTING (312) 419-9292

1 lease with you today?

2 A. Yes, I did.

3 Q. I would like to mark this as the second

4 exhibit.

5 MR. BIEDERMAN: For the record we have

6 identified Petitioner's No. 2 document.

7 BY MR. BIEDERMAN:

8 Q. Mr. Lowe, would you take a look at that

9 document?

10 A. Okay.

11 Q. Are you familiar with that document?

12 A. Yes, I am.

13 Q. And what is that document, sir?

14 A. This is the agreement by which the

15 assignment and assumption of lease was made to

16 Heritage.

17 Q. Is the lease attached to that document?

18 A. Yes. The underlying lease is attached.

19 Q. And you are familiar with both of those

20 documents that have been identified as

21 Petitioner's Exhibit No. 2?

22 A. Yes.

23 Q. Is it your understanding and opinion

24 that the lease that currently existed between the

L.A. REPORTING (312) 419-9292

1 District and Heritage requires that Heritage

2 operate its facility in a manner that complies

3 with all applicable environmental laws and

4 statutes?

5 A. That's correct.

6 Q. And I believe, Mr. Lowe, that you

7 testified that the District understands that the

8 facility that Heritage operates at the facility is

9 a facility that is regulated under the Resource

10 Conservation Recovery Act; is that correct?

11 A. That is correct.

12 Q. And as an operator of a facility under

13 the Resource Conservation Recovery Act -- and I

14 will also refer to that statute as the RCRA

15 statute. So when I refer to that statute as RCRA,

16 you will understand the statute that I am

17 referring to?

18 A. Yes.

19 Q. And it is the District's understanding

20 as an operator under the RCRA statute that it

21 possesses a part A and a part B permit for that

22 facility; is that correct?

23 A. That is correct.

24 Q. Let me ask you, does the District own

L.A. REPORTING (312) 419-9292

1 other properties other than the property that we

2 have been discussing located at Canal Bank Road

3 upon which a RCRA permitted facility is located?

4 A. Well, we own several thousand acres of

5 real estate, several hundred leases. But this is

6 the only RCRA facility on District property.

7 Q. Thank you. Could you describe for me,

8 Mr. Lowe, the District's involvement with the

9 activities or operations of Heritage at this

10 facility?

11 A. Well, naturally, as the owner of the

12 property, the District has an intense interest in

13 being certain that its tenant is in compliance

14 with its lease terms. And so, therefore, we have

15 our own police department who periodically patrol

16 the site. We have a real estate investigator who

17 goes out to the site to see if there -- observe

18 anything that would be in violation of the lease.

19 And naturally what would violate the law would

20 violate the lease.

21 But our role is to just make sure that

22 there are, in fact, no violations of the lease

23 agreement.

24 Q. Okay. Is it fair to say that the

L.A. REPORTING (312) 419-9292

1 District has not in the past become involved in

2 the day-to-day operations of the Heritage facility

3 from a RCRA perspective?

4 A. No, we have not.

5 Q. Thank you.

6 Can you describe for me, Mr. Lowe, the

7 steps Heritage has taken to ensure the District

8 that the District is made aware of the nature and

9 operation of the facility that is located at the

10 site?

11 A. Well, first of all, you know, Heritage

12 has the ability and in the past has been engaged

13 in direct discussions with the District at any

14 time on many issues. We are provided with any

15 public notices that are required for the facility,

16 any changes in the operations, the lease

17 requirements. If there are any problems or any

18 issues, any spills or any releases, we are to be

19 provided that information immediately.

20 So we do have a mechanism in place

21 where -- that Heritage at any time in any way can

22 contact the District, and we do insist that they

23 keep us apprised as to what is taking place of any

24 changes at that facility.

L.A. REPORTING (312) 419-9292

1 Q. Is it fair to say, Mr. Lowe, that the

2 District is well advised of the nature of the

3 operations that are being conducted at the

4 facility?

5 A. We take -- again we -- the District

6 takes the position that it has a responsibility to

7 the public to manage its land efficiently and

8 consistently. So we do take great pride in being

9 aggressive and being aware of what is going on in

10 the property, not only Heritage, but any situation

11 where we lease land to a third party.

12 Q. Mr. Lowe, is it fair to say that the

13 District understands the nature of liability that

14 is imposed by the RCRA statute?

15 A. Absolutely, maybe not happy about it,

16 but we do understand that we are, as a land owner

17 -- the District is jointly and severally liable

18 for the acts and operations of the Heritage

19 facility, no question about it. We made it very

20 clear to our Board of Commissioners that the law

21 imposes that liability, yes. So we are aware of

22 that.

23 Q. Mr. Lowe, you are familiar with the

24 certification that appears in the regulations that

L.A. REPORTING (312) 419-9292

1 were referred to earlier by Ms. Doyle. You are

2 familiar with that certification; is that correct?

3 A. Yes, I am.

4 Q. And that certification has been the

5 topic of numerous discussions with you and myself

6 and with representatives of the Illinois

7 Environmental Protection Agency; is that correct?

8 A. That is very true.

9 Q. Okay. And I notice, Mr. Lowe, that you

10 have a copy of that certification in front of you

11 today; is that correct?

12 A. That is true.

13 Q. And that is the certification that

14 appears in the regulations that have been referred

15 to today; is that correct?

16 A. That is my understanding, yes.

17 Q. Would you object if we identify that as

18 an exhibit for the record?

19 A. No, not at all.

20 HEARING OFFICER KNITTLE: This is

21 Petitioner's No. 3, Mr. Biederman.

22 MR. BIEDERMAN: And I apologize, I don't have

23 an extra copy, but I think it is a document that

24 you will both recognize.

L.A. REPORTING (312) 419-9292

1 MR. SCHERSCHLIGT: Mr. Biederman, is this

2 used for demonstrative purposes, evidentiary?

3 MR. BIEDERMAN: I would like to admit it into

4 evidence. I would like Mr. Lowe to testify from

5 this document and refer to this document.

6 MR. SCHERSCHLIGT: Well, I guess it may be

7 premature, but, I mean, I would prefer that we

8 just stipulate to the language in the regulation.

9 That has verbatim the certification language that

10 is at issue here. And, you know, I don't know

11 what kind of foundation you are prepared to lay

12 for this, but I do notice that it has been

13 modified. There are markings on it. It is -- so

14 we would probably be inclined to object if it were

15 offered into the record. It is hearsay.

16 There are -- I guess it is not clear to

17 the Agency for what purpose the exhibit is being

18 offered, but that may become more clear as

19 Mr. Biederman attempts to lay foundation for it.

20 MR. BIEDERMAN: I would like to state that I

21 believe that this document has previously --

22 without any notations that have been made on the

23 document has been previously stipulated to and has

24 been entered into the record as part of the

L.A. REPORTING (312) 419-9292

1 documents that are attached to our petition.

2 MS. DOYLE: I don't know if that is true.

3 MR. SCHERSCHLIGT: If that is the case, then

4 I would prefer that you just refer to the already

5 proffered exhibit as opposed to marking this as a

6 separate exhibit, knowing that it has been

7 modified and marked on.

8 MS. DOYLE: Exhibit A to our petition is the

9 statute at issue here, if you just want to stick

10 with that.

11 MR. BIEDERMAN: That is fine.

12 MR. SCHERSCHLIGT: Thank you.

13 MR. BIEDERMAN: I can also refer -- just off

14 the record.

15 HEARING OFFICER KNITTLE: Off the record.

16 (Discussion had off the

17 record.)

18 HEARING OFFICER KNITTLE: On the record.

19 BY MR. BIEDERMAN:

20 Q. Mr. Lowe, I would like you to turn your

21 attention to page 6 of the petitioner's petition

22 for adjusted standard, in particular the

23 certification language that appears on that page.

24 A. Okay.

L.A. REPORTING (312) 419-9292

1 Q. You are familiar with the certification

2 language that appears on page 6?

3 A. Yes, I am.

4 Q. Has the District ever executed the

5 certification in its exact form as it appears on

6 that page?

7 A. Not to my knowledge, no.

8 Q. Thank you.

9 Are you aware that the District has, in

10 fact, executed alternative certification language?

11 A. Yes.

12 Q. Okay. Can you explain your

13 understanding of the alternative certification

14 language that the Board has executed?

15 MR. SCHERSCHLIGT: Objection to relevance. I

16 think the adjusted standard as being proffered

17 here is clear from the petition. And any language

18 or lax language or ultimate language that may have

19 been accepted in the past really is not relevant

20 for purposes of these proceedings.

21 HEARING OFFICER KNITTLE: Mr. Biederman?

22 MR. BIEDERMAN: I would state that the

23 history of this facility, this facility's

24 compliance with applicable regulations, the

L.A. REPORTING (312) 419-9292

1 certifications that the District has made in the

2 past are clearly relevant to each of the four

3 factors that the petitioner is required to prove.

4 In particular, one of the factors that

5 we intend to prove is that the existence of the

6 factors that exists justifies an adjusted

7 standard. Relevant to that is the compliance

8 history of the facility. We intend to prove that

9 we have operated under an alternative

10 certification and that our operation under that

11 alternative certification has not caused any

12 detrimental health effects.

13 I would refer to the four factors that

14 are required for us to prove our petition. One of

15 those factors is that the requested standard will

16 not result in environmental or health effects

17 substantially and significantly nor adverse than

18 the effects considered by the Board in adopting

19 the rule of general applicability.

20 I think that it is very relevant what

21 conditions this facility has been operating under

22 in the past, and I would like to continue this

23 line of questioning.

24 MR. SCHERSCHLIGT: I am sorry, if I may

L.A. REPORTING (312) 419-9292

1 respond?

2 HEARING OFFICER KNITTLE: Sure.

3 MR. SCHERSCHLIGT: Previously executed

4 certification language has absolutely nothing to

5 do with present or past compliance of the

6 petitioner. I might note that the petitioner in

7 this case is Heritage Environmental, not MWRD.

8 And in terms of being consistent with

9 any applicable federal law, that has absolutely

10 nothing to do with what MWRD may have signed in

11 the past. The question is is the certification

12 language in this petition, is the evidence at this

13 hearing going to meet that level of justification

14 for that certification language. And what was

15 proffered or executed in the past has no relevance

16 whatsoever.

17 MR. BIEDERMAN: May I respond?

18 HEARING OFFICER KNITTLE: Yes.

19 MR. BIEDERMAN: I view our obligation here in

20 this petition for adjusted standard to be greater

21 than simply compliance with federal law. As I

22 indicated, I believe one of our -- the

23 requirements that we must prove is that if the

24 Board grants this adjusted standard, that it will

L.A. REPORTING (312) 419-9292

1 not result in any environmental health effects

2 that are substantially and significantly more

3 adverse than the effects considered by the Board.

4 I think that the proof will show, the

5 evidence will show that Heritage has been

6 operating under the co-permittee alternative

7 certification and that there is no likelihood or

8 no possibility that simply continuing an alternate

9 certification would affect the compliance history,

10 the compliance nature of that facility or impact

11 in any way environmental or health effects of that

12 facility.

13 HEARING OFFICER KNITTLE: Anything further

14 Mr. Scherschligt?

15 MR. SCHERSCHLIGT: This is not a retroactive

16 adjusted standard. What they have been operating

17 under as far as certification language may be the

18 subject of dispute, I don't know. But it doesn't

19 make any difference what they have been operating

20 under. What is relevant is what they are

21 proposing to be operating under from the point in

22 time if and when the Board adopts the adjusted

23 standard and into the future.

24 You know, if the agency in the past has

L.A. REPORTING (312) 419-9292

1 accepted alternate certification language, then

2 that would clearly be error on the part of the

3 agency. And the fact that the agency may have

4 erred in the past does not mean that it should

5 perpetuate its error. I think the Board has made

6 that clear in State Bank of Whittington.

7 MR. BIEDERMAN: The purpose of the evidence

8 concerning certifications that may have been

9 executed in the past is not to point out any

10 error. The sole purpose and relevancy of those

11 certifications is just simply to prove that

12 operation under an alternative certification in

13 the future will not have any adverse effects on

14 the environment or health.

15 MR. SCHERSCHLIGT: Well, then let's -- I am

16 sorry.

17 MR. BIEDERMAN: If the agency is willing to

18 stipulate to that fact, I would be willing to

19 strike from the record -- I want to think about

20 this for a minute. Can we go off the record for a

21 minute?

22 HEARING OFFICER KNITTLE: Yes.

23 (Discussion had off the

24 record.)

L.A. REPORTING (312) 419-9292

1 HEARING OFFICER KNITTLE: We are back on the

2 record after a short discussion off the record

3 still debating -- well, we have had an objection

4 by Mr. Scherschligt. We haven't actually had this

5 exhibit offered into evidence at this point. This

6 all by might be a little premature.

7 Mr. Biederman, are you planning on

8 introducing this into evidence?

9 MR. BIEDERMAN: This is in evidence, this --

10 the certification that we have been discussing.

11 HEARING OFFICER KNITTLE: So,

12 Mr. Scherschligt, what are you objecting to

13 exactly?

14 MR. SCHERSCHLIGT: What number is that,

15 Mr. Biederman?

16 MS. DOYLE: It is Exhibit B.

17 MR. SCHERSCHLIGT: Plaintiff's exhibit --

18 MR. BIEDERMAN: I am referring directly to

19 the certification language as it appears in the

20 regulation.

21 MR. SCHERSCHLIGT: As long as Mr. Biederman

22 is referring to the certification language in the

23 petition and not the single page that was marked

24 as an exhibit, I have no objection to him

L.A. REPORTING (312) 419-9292

1 referring to that.

2 HEARING OFFICER KNITTLE: All right.

3 MR. SCHERSCHLIGT: But my objection was to

4 Mr. Biederman referring to certification language

5 that the Agency may have accepted in the past. I

6 object on the basis of relevance. I object on the

7 basis of it assumes facts not evidence. And I

8 object on the basis of it being hearsay. Because

9 there is absolutely nothing to demonstrate what

10 that is.

11 HEARING OFFICER KNITTLE: Okay. And we have

12 had extensive discussion on this. And,

13 Mr. Biederman, I will allow you one last response,

14 then we are going to rule on it and get moving.

15 MR. BIEDERMAN: I want to make sure that I am

16 very clear on the line of testimony that we are

17 addressing here. The certification I have been

18 addressing with the witness, Mr. Lowe, is the

19 certification as it appears on page 6 of our

20 petition. I have asked Mr. Lowe if alternative

21 language has been executed on behalf of the

22 District. And I believe that Mr. Lowe testified

23 that, yes, in fact, alternate language has been

24 executed. I am making no offer of proof as to

L.A. REPORTING (312) 419-9292

1 whether that certification -- that language was

2 approved by the IEPA.

3 MR. SCHERSCHLIGT: I object to hearsay then.

4 Produce it. If there has been past certification

5 language, lay the foundation and produce it. But

6 for Mr. Lowe to testify what that was or if it

7 even occurred is hearsay and, not to mention,

8 irrelevant and assumes facts not in evidence.

9 HEARING OFFICER KNITTLE: Let me jump in. I

10 am not so concerned about the hearsay at this

11 point, but I don't see how it is relevant,

12 Mr. Biederman.

13 MR. BIEDERMAN: I would like to point out

14 that the alternate certification that has been

15 executed on behalf of the District is, in fact,

16 part of our evidentiary record and it appears in

17 our petition as the last page of Exhibit B. So I

18 believe that this certification language is, in

19 fact, part of this record. Again, I --

20 HEARING OFFICER KNITTLE: A relevant part of

21 the record? That is what I am concerned about.

22 MR. BIEDERMAN: Yes, absolutely.

23 HEARING OFFICER KNITTLE: Tell me why it is

24 relevant.

L.A. REPORTING (312) 419-9292

1 MR. BIEDERMAN: It is relevant because it

2 speaks to the condition under which the facility

3 has operated in the past. It has operated in the

4 past under an alternate certification executed by

5 the District. And I believe that there is no

6 evidence to suggest that if the facility were to

7 continue operating under an alternate

8 certification that it would not have any adverse

9 effects on the compliance record of the facility

10 or environmental or health effects of the

11 facility.

12 I believe that is relevant and

13 important because I believe and I understand one

14 of the requirements that we must prove is that the

15 existence of the factors that are different

16 justified an adjusted standard.

17 MR. SCHERSCHLIGT: It is prospective. It is

18 not retroactive relief. There has been no

19 foundation laid for anything that may already

20 exist in that exhibit. To the extent you want to

21 try and lay foundation and introduce it somewhere

22 down the line, that is fine. But this is not

23 about retroactive relief. This is about is this

24 certification language proposed in the petition,

L.A. REPORTING (312) 419-9292

1 does it satisfy the level of justification. And

2 any past certification language should not justify

3 or validate the certification language that is

4 being proposed.

5 HEARING OFFICER KNITTLE: I am going to

6 overrule the objection, Mr. Scherschligt. I think

7 that at least it is potentially relevant to

8 whether there is going to be a health or safety

9 issue down the road based on past performance. I

10 am going allow it in, but I am not going to allow

11 a lot of questions along this line. Because I do

12 agree with Mr. Scherschligt that it is prospective

13 relief you are speaking of here. Although I think

14 it is at least tenuously relevant, I am not so

15 sure that I want to go too far into it.

16 MR. BIEDERMAN: And I would agree. In fact,

17 the evidence that I want in the record I think is

18 now complete and I am prepared to move on.

19 MR. SCHERSCHLIGT: And, Mr. Hearing Officer,

20 if I may just reserve my right to -- first of all,

21 I guess I would just ask for your ruling on my

22 objection for lack of foundation for this

23 alternate certification language that

24 Mr. Biederman is referring to in the exhibit. And

L.A. REPORTING (312) 419-9292

1 secondly, I would also reserve my right to object

2 at a later time as well.

3 HEARING OFFICER KNITTLE: Mr. Scherschligt, I

4 think, though, the language he is referring to is

5 part of the petition, correct? See, he is no

6 longer referring to -- at least it is my

7 understanding that this is no longer Petitioner's

8 Exhibit 3 --

9 MR. BIEDERMAN: That's correct.

10 HEARING OFFICER KNITTLE: -- from the hearing

11 he is referring to.

12 MR. BIEDERMAN: That's correct.

13 HEARING OFFICER KNITTLE: He is referring to

14 an exhibit that is attached to the petition filed

15 before the Board in this case.

16 MR. BIEDERMAN: Correct.

17 MR. SCHERSCHLIGT: To the extent that he just

18 wants to point out that that page exists in the

19 exhibit, I guess I don't have a problem with that.

20 Then I would question for what purpose are you

21 offering that?

22 HEARING OFFICER KNITTLE: Mr. Biederman, you

23 are not offering that to my understanding at all,

24 are you?

L.A. REPORTING (312) 419-9292

1 MR. BIEDERMAN: Well, I want to be very

2 clear. I don't believe that there is a need to

3 offer this into evidence because I believe that

4 the certification language that has been executed

5 is part of the evidentiary record.

6 I was just simply asking this witness

7 if he was familiar with the fact that alternative

8 certification language had been executed on behalf

9 of the District in the past. I believe that the

10 witness, Mr. Lowe, responded in the affirmative

11 and said that he was familiar.

12 HEARING OFFICER KNITTLE: Okay. To the

13 extent that that is the only question,

14 Mr. Scherschligt, I don't see that any foundation

15 would --

16 MR. SCHERSCHLIGT: We will stipulate that

17 there is a page in that exhibit that refers to

18 some other certification language is what is being

19 offered in this case.

20 HEARING OFFICER KNITTLE: Sufficient,

21 Mr. Biederman?

22 MR. BIEDERMAN: Absolutely.

23 HEARING OFFICER KNITTLE: Mr. Scherschligt?

24 MR. SCHERSCHLIGT: That is fine.

L.A. REPORTING (312) 419-9292

1 HEARING OFFICER KNITTLE: Let's move on.

2 MR. BIEDERMAN: Thank you.

3 If I could have one moment here.

4 HEARING OFFICER KNITTLE: Do you need to go

5 off the record?

6 MR. BIEDERMAN: No.

7 BY MR. BIEDERMAN:

8 Q. Mr. Lowe, let me direct your attention

9 now to page 14 of the petitioner's petition for

10 an adjusted standard, and in particular I will

11 refer your attention to the proposed alternative

12 certification language that appears on that page.

13 A. Okay.

14 Q. Are you familiar with that language,

15 sir?

16 A. Yes.

17 Q. Is it your understanding that the

18 District is willing to execute such language?

19 A. That is correct.

20 Q. Tell me what your involvement has been

21 with respect to this language. There has been

22 numerous discussions between you and I on this

23 language. And just give me a little of the

24 history and your involvement in this alternative

L.A. REPORTING (312) 419-9292

1 certification.

2 A. Well, as I indicated earlier --

3 MR. SCHERSCHLIGT: Objection, overly vague

4 and -- overly vague. Could you please be a little

5 more specific?

6 MR. BIEDERMAN: I would ask the witness if he

7 understands the question.

8 THE WITNESS: I think I understand the

9 question.

10 MR. SCHERSCHLIGT: Could we read the question

11 back?

12 HEARING OFFICER KNITTLE: Do you want to read

13 it back, please?

14 (Record read as requested.)

15 BY MR. BIEDERMAN:

16 Q. Sir, do you understand the question

17 that I have posed?

18 A. Yes, sir.

19 Q. Can you answer that question?

20 HEARING OFFICER KNITTLE: You can answer that

21 question. Can you answer his question?

22 THE WITNESS: Yes, I think I can.

23 HEARING OFFICER KNITTLE: Mr. Scherschligt,

24 do you have an objection?

L.A. REPORTING (312) 419-9292

1 MR. SCHERSCHLIGT: I will withdraw the

2 objection based on the answer.

3 THE WITNESS: My involvement with respect to

4 the language that has been pointed out is that

5 when matters come into the District that requires

6 the signature of the corporate authorities for the

7 District, which is the general superintendent, it

8 comes to the law department to review and approve

9 that language before it is submitted for execution

10 by the general superintendent.

11 The original certification language is

12 the law department's point of view that the

13 general superintendent cannot execute that

14 language because it requires the District to

15 attest to facts which are not, in fact, true, that

16 is that the District did not direct and supervise

17 the preparation of the application. And it is our

18 position that the District cannot -- it is a

19 public -- the District is a governmental entity.

20 It cannot go into Heritage and directly supervise

21 the preparation of that application.

22 We have advised Heritage of that and

23 have indicated that we have no difficulty in

24 certifying to language that is true and, in fact,

L.A. REPORTING (312) 419-9292

1 correct, but we cannot certify or recommend to the

2 general superintendent to certify language that is

3 false.

4 So that resulted in some discussion

5 with Heritage and Mr. Biederman as to how we can

6 satisfy the purpose of the certification

7 provisions in a manner that allows the District to

8 attest truthfully and allow it to do so in a way

9 where it does not exceed its authority.

10 BY MR. BIEDERMAN:

11 Q. Mr. Lowe, is it your testimony today

12 that the certification that appears on page 14 of

13 the petitioner's petition for an adjusted

14 standard, that that certification is within the

15 authority of the District to execute?

16 A. Yes. We have carefully reviewed that

17 language, and it is our opinion that we can

18 recommend the general superintendent execute that

19 language, that's correct, or certify to that

20 language.

21 Q. Mr. Lowe, is the District attempting in

22 any way to distance itself from its obligations

23 under RCRA by seeking to execute the alternative

24 certification language that appears on page 14?

L.A. REPORTING (312) 419-9292

1 A. No, absolutely not. The District's --

2 the District's goal it two-fold: One that it must

3 operate within its statutory authority, and, two,

4 whatever it is that is certified to must be true

5 or fact. Those are the only two objectives.

6 Q. And you believe that those objectives

7 are accomplished with this alternative

8 certification language?

9 A. That is correct.

10 Q. Mr. Lowe, does the District remain

11 willing to work with the Board and/or the IEPA

12 and/or Heritage in alternative certification

13 language that is acceptable to all parties and

14 meets the needs and goals of the District?

15 A. Yes. I think we have been very clear

16 on that point throughout the process.

17 MR. BIEDERMAN: Thank you. Could I have just

18 one minute?

19 HEARING OFFICER KNITTLE: Yes.

20 MR. BIEDERMAN: I have no further questions

21 on direct and reserve my right to redirect at the

22 completion of the cross.

23 HEARING OFFICER KNITTLE: Mr. Scherschligt or

24 Mr. Gurnik, do you have cross?

L.A. REPORTING (312) 419-9292

1 MR. GURNIK: Yes.

2 CROSS-EXAMINATION

3 BY MR. SCHERSCHLIGT:

4 Q. Mr. Lowe, you have testified that MWRD

5 does not have the authority to sign the permit

6 application?

7 A. No, I haven't testified to that. What

8 I have attempted to testify to is that we do not

9 have the authority to certify the language as it

10 appears on page 4 of the petition.

11 Q. The District has filed permit

12 applications in the past with the Illinois EPA on

13 unrelated matters, hasn't it?

14 MR. BIEDERMAN: Objection. It addresses

15 evidence that is not in the record. It is also

16 outside the scope of the direct examination.

17 HEARING OFFICER KNITTLE: Overruled.

18 BY MR. SCHERSCHLIGT:

19 Q. Have you filed permit applications in

20 the past?

21 A. Yes. It is my understanding that the

22 District has.

23 Q. And they have signed those permit

24 applications, have they not?

L.A. REPORTING (312) 419-9292

1 A. They have a clear distinction, though.

2 Q. But have they signed those permit

3 applications?

4 A. Sure.

5 Q. Those permit applications also contain

6 certification language?

7 A. Sure. But the question is sort of

8 misleading, though. Those are --

9 Q. Your counsel will have the opportunity

10 to ask you any redirect.

11 A. Okay.

12 Q. You have testified that other than

13 assurances or -- verbal or written assurances that

14 you may receive from Heritage and police patrols,

15 are there any other measures that the District

16 undertakes in ascertaining compliance with

17 Heritage's permit or any other environmental laws

18 or regulations?

19 A. When Heritage makes application for

20 modifications or new permits, we do have those

21 documents reviewed by the District's research and

22 development department.

23 Q. And do they have expertise in the

24 contents or the proposals in those permit

L.A. REPORTING (312) 419-9292

1 applications?

2 A. I would say that they -- yes, they

3 review them. So I would assume that there is some

4 level of expertise.

5 Q. So they provide some oversight to the

6 permit application process?

7 MR. BIEDERMAN: Objection. That assumes

8 facts not in evidence and --

9 MR. SCHERSCHLIGT: I am asking him.

10 MR. BIEDERMAN: If I can finish my objection.

11 HEARING OFFICER KNITTLE: You can finish your

12 objection.

13 MR. BIEDERMAN: And I think it

14 mischaracterizes the witness's testimony.

15 HEARING OFFICER KNITTLE: Mr. Scherschligt?

16 MR. SCHERSCHLIGT: I asked if they provide

17 any oversight to the application permit process.

18 I am asking for evidence to that effect.

19 HEARING OFFICER KNITTLE: I will allow the

20 question to stand.

21 If you can answer, sir.

22 THE WITNESS: When a document is submitted by

23 Heritage for the District's execution, we do

24 review those documents. That is correct.

L.A. REPORTING (312) 419-9292

1 BY MR. SCHERSCHLIGT:

2 Q. What terms of compliance measures does

3 the District undertake in making sure that the

4 lessee, Heritage, is in compliance with its

5 permits and with the environmental laws and

6 regulations?

7 A. What we don't do is that -- let me tell

8 you what we do do. And what we do do is what I

9 indicated earlier. We patrol the property both

10 with our police department and our real estate

11 investigation staff. We pay attention to any

12 documents that are submitted by Heritage and have

13 them reviewed by our technical people. We pay

14 attention to public notices that are submitted.

15 We do what we think the landlord would ordinarily

16 do. We don't get into the Heritage day-to-day

17 operations.

18 Q. Are your police officers experts in

19 environmental laws and environmental compliance?

20 A. Absolutely not.

21 Q. So they wouldn't really know if that

22 facility were operating in the confines of its

23 permits or the law and regulations; is that

24 correct?

L.A. REPORTING (312) 419-9292

1 A. That is true.

2 Q. Now, the certification language --

3 first of all, it is true that MWRD is not a party

4 to this action; is that correct?

5 A. That's correct.

6 Q. But MWRD, you would agree, does have a

7 vested interest in the outcome of this action?

8 MR. BIEDERMAN: Objection to the form of the

9 question.

10 BY MR. SCHERSCHLIGT:

11 Q. Does MWRD have a vested interest in the

12 outcome of this action?

13 MR. BIEDERMAN: I would renew my objection.

14 THE WITNESS: I am not sure --

15 HEARING OFFICER KNITTLE: Let me rule. I

16 have got to overrule. I think this goes to

17 credibility on cross-examination.

18 MR. BIEDERMAN: My objection spoke to the

19 issue of -- could you read the question back,

20 please?

21 HEARING OFFICER KNITTLE: Hold on. Ask me to

22 ask her to read the question back. I don't want

23 everybody just asking the court reporter

24 willy-nilly.

L.A. REPORTING (312) 419-9292

1 Would you like me to ask her?

2 MR. BIEDERMAN: Yes.

3 HEARING OFFICER KNITTLE: Could you read the

4 question back?

5 (Record read as requested.)

6 MR. BIEDERMAN: And I just want to clarify

7 for the record that my objection was as to form in

8 that I don't know what a vested interest is. If

9 the -- if that is clear in the record, that is

10 what my objection speaks to.

11 HEARING OFFICER KNITTLE: Mr. Scherschligt?

12 MR. SCHERSCHLIGT: If the Board were to grant

13 the adjusted standard or the alternate

14 certification, then presumably that would be for

15 the District's benefit. And that is really what

16 the purpose of my question is, to elicit whether

17 or not this is really for MWRD's benefit.

18 HEARING OFFICER KNITTLE: Do you have an

19 objection to that question?

20 MR. BIEDERMAN: Again, I would renew my

21 objection as to form.

22 HEARING OFFICER KNITTLE: Okay, I am going to

23 overrule that.

24 You can answer, sir.

L.A. REPORTING (312) 419-9292

1 THE WITNESS: Okay. We perceive it as

2 providing no benefit at all to the District. Our

3 position is simply this, that the language that we

4 certified to must, in fact, be true. We don't

5 perceive it as providing us a benefit or harm or

6 any other way.

7 BY MR. SCHERSCHLIGT:

8 Q. Forgive me, it is to alleviate the

9 District's concerns, would that be a fair

10 statement?

11 A. No. It is to make sure the District

12 can certify truthfully and legally to a statement.

13 It is not an issue of concern.

14 Q. So it benefits the District to that

15 end?

16 A. We don't refer to it as benefiting the

17 District. If, in fact, your position is that

18 compliance with the law or testifying truthfully

19 is beneficial to the District, yes, in that sense

20 it benefits the District. If your suggestion is

21 that we somehow derive some other types of

22 benefits, absolutely not.

23 Q. The former was what I was getting it

24 and you have answered my question. Thank you.

L.A. REPORTING (312) 419-9292

1 I would like to go over the

2 certification language in the petition on page 14

3 of the petitioner's petition for adjusted

4 standard. There is no reference in that language,

5 is there, to certifying under penalty of law or

6 penalty of purgery; isn't that correct?

7 A. That's correct.

8 Q. And there is no language in there

9 with respect to any acknowledgment of joint and

10 several liability on the part of MWRD; isn't that

11 correct?

12 A. No, but neither is there any such

13 language --

14 MR. SCHERSCHLIGT: Mr. Hearing Officer, I

15 would ask that you instruct the witness to answer

16 the question that has been asked. And if his

17 attorney wants to elaborate at a later time, that

18 is his right.

19 HEARING OFFICER KNITTLE: Sir, if you could

20 try to refrain from adding additional information

21 than what is asked.

22 THE WITNESS: Okay.

23 HEARING OFFICER KNITTLE: I would direct you

24 to do so.

L.A. REPORTING (312) 419-9292

1 THE WITNESS: Okay.

2 BY MR. SCHERSCHLIGT:

3 Q. And, Mr. Lowe, there is no

4 acknowledgement of any joint responsibility for

5 compliance of the facility, is there?

6 A. In the statement itself, no.

7 Q. And there is no assertion that there

8 has been due diligence or good faith with respect

9 to the truth of the contents of the permit

10 application; isn't that correct?

11 A. Oh, I think that is fairly clearly

12 implied.

13 Q. How is it implied, sir?

14 A. You are certifying that it was prepared

15 by a professional engineer.

16 Q. So you would submit that --

17 A. You are certifying that you have

18 confirmed with the operator. You are certifying

19 that it is to the best of your knowledge that it

20 is true. Surely that implies that.

21 Q. But there is no reference to due

22 diligence, is there?

23 MR. BIEDERMAN: Objection, argumentative.

24 HEARING OFFICER KNITTLE: Mr. Scherschligt?

L.A. REPORTING (312) 419-9292

1 MR. SCHERSCHLIGT: I can ask it in a

2 different tone if that would help.

3 BY MR. SCHERSCHLIGT:

4 Q. Is there any reference to due diligence

5 in that proposed certification language?

6 A. The language surely sets forth a

7 process of due diligence. It does not use the

8 words due diligence.

9 Q. Thank you. That was my question.

10 Are you familiar with the Ninth Circuit

11 Court of Appeals opinion that the petitioner has

12 attached as an exhibit to its petition for

13 adjusted standard?

14 A. I have read it, but I wouldn't say I am

15 familiar with it, no.

16 Q. Do you acknowledge that Congress and

17 the U.S. EPA felt that there was a policy

18 objective that owners share in the responsibility

19 for compliance at a particular facility?

20 MR. BIEDERMAN: Objection. It is outside the

21 scope of direct. It also assumes facts that are

22 not in evidence.

23 MR. SCHERSCHLIGT: It goes to the question of

24 whether it is consistent with federal law.

L.A. REPORTING (312) 419-9292

1 MR. BIEDERMAN: Again, it was --

2 MR. SCHERSCHLIGT: Petitioner is asserting

3 that this petition is consistent with federal law.

4 And as part of the petition, they have attached a

5 Ninth Circuit Court of Appeals opinion that goes

6 to compliance.

7 MR. BIEDERMAN: Does it go to compliance or

8 does it go to the issue of the nature and extent

9 of federal law? Again, I believe it is outside

10 the scope of direct.

11 HEARING OFFICER KNITTLE: I am going to

12 sustain the objection. I don't think we covered

13 this in direct examination.

14 MR. SCHERSCHLIGT: I think he asked him about

15 compliance, past and present compliance in the

16 facility. And I would limit any question and

17 offer it only to the extent that it goes to

18 compliance at the facility -- present compliance

19 at the facility.

20 HEARING OFFICER KNITTLE: But the question

21 about the attached case, Mr. Scherschligt?

22 MR. SCHERSCHLIGT: I guess my question is

23 does MWRD acknowledge that it has joint

24 responsibility for compliance at the facility.

L.A. REPORTING (312) 419-9292

1 HEARING OFFICER KNITTLE: I will allow that

2 question to stand.

3 THE WITNESS: We are very much aware that

4 they are jointly and severally liable.

5 BY MR. SCHERSCHLIGT:

6 Q. But are you also aware that you are

7 jointly and severally responsible for compliance?

8 MR. BIEDERMAN: Objection. It calls for a

9 legal conclusion.

10 MR. SCHERSCHLIGT: I will rephrase.

11 HEARING OFFICER KNITTLE: Mr. Scherschligt?

12 MR. SCHERSCHLIGT: I will rephrase.

13 BY MR. SCHERSCHLIGT:

14 Q. I will just ask it this way. Does the

15 District view itself as being jointly responsible

16 for compliance at the facility? I won't ask what

17 the law requires. I will ask does the District

18 view itself as being jointly responsible for

19 compliance measures at the facility?

20 A. The District views itself as jointly

21 and severally liable for any failures of the

22 facility to comply with the law, sure.

23 Q. So if the law were that you were

24 jointly responsible for compliance itself, you

L.A. REPORTING (312) 419-9292

1 would dispute that?

2 MR. BIEDERMAN: I am going to object to

3 the --

4 THE WITNESS: I think I am answering your

5 question. When you say jointly responsible, I am

6 not really sure what -- what I am certain of is

7 that we are jointly and severally liable. I am

8 not sure what you mean when you say jointly

9 responsible.

10 BY MR. SCHERSCHLIGT:

11 Q. I appreciate that. And that was one of

12 my other questions, whether you acknowledge joint

13 and several liability, and I think you already

14 have.

15 But even before we get to the issue of

16 liability, in the event of a violation, do you

17 also acknowledge that you are jointly -- that the

18 District is jointly responsible for the compliance

19 activities at that facility for making sure that

20 it does stay in compliance?

21 MR. BIEDERMAN: I would object to the

22 question. I believe it calls for a legal

23 conclusion.

24 MR. SCHERSCHLIGT: It asks whether the

L.A. REPORTING (312) 419-9292

1 District recognizes a joint responsibility, not

2 what the law requires. I simply want to know do

3 they recognize that, do they subscribe to that?

4 HEARING OFFICER KNITTLE: I will overrule the

5 objection.

6 THE WITNESS: Do we subscribe to what?

7 BY MR. SCHERSCHLIGT:

8 Q. Do you subscribe to the policy that

9 MWRD is jointly responsible for compliance at that

10 facility?

11 A. And I am not answering your question

12 when I say we are jointly and severally liable?

13 Q. I don't want to know what you view your

14 liability. I want to know if you view it your

15 responsibility to make sure that that facility is

16 in compliance?

17 MR. BIEDERMAN: I am going to again object to

18 this question. It is vague. It has been asked

19 and answered.

20 MR. SCHERSCHLIGT: It has not been asked and

21 answered.

22 MR. BIEDERMAN: And it calls for a legal

23 conclusion.

24 MR. SCHERSCHLIGT: It is not vague. It is

L.A. REPORTING (312) 419-9292

1 right out of the attachment to the petitioner's

2 petition. They attach a copy of the Ninth

3 District Court of Appeals in their petition.

4 HEARING OFFICER KNITTLE: I think there is a

5 difference in the two questions. I would like to

6 hear the witness answer it once.

7 Do you need the question read back,

8 sir?

9 THE WITNESS: No. I need -- when you say

10 joint --

11 MR. SCHERSCHLIGT: I will rephrase the

12 question.

13 THE WITNESS: Are you saying responsible to

14 making sure on a day-to-day basis that the

15 facility is properly staffed, that we are

16 responsible for checking whenever any particular

17 barrel or hazardous waste facility comes into the

18 facility?

19 BY MR. SCHERSCHLIGT:

20 Q. I will rephrase the question, Mr. Lowe.

21 Do you acknowledge a responsibility to provide

22 supervision in any fashion to make sure that that

23 facility is operating in accordance with the law

24 and its permits?

L.A. REPORTING (312) 419-9292

1 MR. BIEDERMAN: I am going to object to the

2 form of the question. Again, I think it assumes

3 facts not evidence and it is outside the scope of

4 the direct.

5 HEARING OFFICER KNITTLE: Yes, your objection

6 is noted for the record, but I will allow the

7 question to go forward.

8 To the best of your ability, sir.

9 THE WITNESS: What level of responsibility?

10 BY MR. SCHERSCHLIGT:

11 Q. Any responsibility?

12 A. Are we responsible for failures of

13 the facility, yes, we are. Are we responsible to

14 make sure that each and every day the facility is

15 properly staffed, we take a position that is not

16 our responsibility. Are we responsible on each

17 and every day to check each drum that comes into

18 the site, we don't view that as our

19 responsibility.

20 Q. If you become aware of a violation at

21 the facility, do you feel that the District has an

22 obligation to correct that violation?

23 A. We take a position, absolutely, that

24 any violation should be corrected. Our first

L.A. REPORTING (312) 419-9292

1 position is that Heritage should correct it. But

2 if Heritage does not immediately do it,

3 absolutely.

4 Q. What measures do you undertake to find

5 out whether or not the facility is, in fact, in

6 compliance, other than police patrols and verbal

7 assurances or written assurances that you may

8 receive from Heritage?

9 MR. BIEDERMAN: Objection, asked and

10 answered.

11 HEARING OFFICER KNITTLE: Mr. Scherschligt,

12 have you asked and answered this?

13 MR. SCHERSCHLIGT: I don't think he has

14 answered the question I just asked him.

15 HEARING OFFICER KNITTLE: I don't recall this

16 question, Mr. Biederman. But I will admit that I

17 may not have an entirely accurate recollection

18 myself at this point.

19 I will allow this question to stand.

20 THE WITNESS: I am sorry, Bob, what was the

21 question again?

22 MR. SCHERSCHLIGT: Can we repeat it back?

23 HEARING OFFICER KNITTLE: Yes.

24 (Record read as requested.)

L.A. REPORTING (312) 419-9292

1 THE WITNESS: That is pretty much it.

2 BY MR. SCHERSCHLIGT:

3 Q. Does the District go on-site and

4 conduct any periodic inspections of the facility

5 to ascertain compliance with the lease agreement,

6 the permit or any other environmental laws and

7 regulations?

8 A. No, we do not.

9 Q. Does the lease give MWRD the right to

10 enter the property?

11 A. It is my understanding that it does.

12 And even if it doesn't, we do that.

13 Q. Has MWRD ever offered to hire outside

14 environmental consultants to review the contents

15 of applications for permits submitted by Heritage

16 Environmental Services?

17 A. Yes.

18 MR. BIEDERMAN: I am going to object to the

19 question. It assumes facts not in evidence. It

20 is also outside the scope of the direct.

21 MR. SCHERSCHLIGT: Well, Mr. Hearing Officer,

22 one of the issues here is whether or not the Board

23 should accept relaxed certification language. And

24 the purpose for that question is to inquire as to

L.A. REPORTING (312) 419-9292

1 exactly what the District would be willing to do

2 in terms of providing supervision to the

3 preparation of permit applications. So I think

4 that is entirely relevant here and it is

5 information, really, that the Board, I presume,

6 would like to know.

7 HEARING OFFICER KNITTLE: Could you read the

8 question back?

9 (Record read as requested.)

10 HEARING OFFICER KNITTLE: I would overrule

11 the objection. I don't think it is beyond the

12 scope. I think it is relevant. My concern was

13 whether it was beyond the scope of direct

14 examination, and I think we touched on that in

15 direct examination. The question is allowed.

16 Did you answer the question yes, sir?

17 THE WITNESS: I answered the question, but

18 his comment -- at the end he made a comment that

19 sort of modified the question. His comment after

20 he gave the question was with respect to the

21 supervising and preparation of the application. I

22 heard him initially ask --

23 MR. SCHERSCHLIGT: I will strike that part of

24 my comment or question or whatever it was.

L.A. REPORTING (312) 419-9292

1 HEARING OFFICER KNITTLE: Is that acceptable,

2 Mr. Biederman?

3 MR. BIEDERMAN: Yes, it is.

4 BY MR. SCHERSCHLIGT:

5 Q. Is it fair to say that the District's

6 only interest and involvement in this facility is

7 to collect rent pursuant to the lease agreement?

8 A. Could you say it again?

9 Q. Is it fair to say that the District's

10 only interest and involvement in the facility is

11 to collect rent pursuant to the lease agreement?

12 A. No. It is also to make sure that the

13 public property is not misused or compromised in

14 any way.

15 Q. Is it also true that -- would you say

16 it is fair to say that the District does not

17 possess any expertise whatsoever in the operations

18 and permitting requirements of the RCRA facility?

19 A. We have a very competent, professional

20 staff. I am not going to make a generalization

21 about all of the engineering.

22 Q. Do you have any professional engineers

23 on staff?

24 A. Oh, hundreds of them.

L.A. REPORTING (312) 419-9292

1 Q. Do you have lawyers on staff?

2 A. Yes.

3 Q. Do you have any biologists, chemists?

4 A. Yes.

5 Q. Do you have any geologists?

6 A. I don't think we have any geologists.

7 Q. Would you say that any of your experts

8 on staff are at least somewhat familiar with the

9 RCRA program?

10 A. Yes. I would be surprised if some of

11 our technical staff wouldn't have some knowledge

12 in this area.

13 Q. And you have testified that as a

14 governmental entity you don't believe that MWRD

15 has the authority to sign the certification

16 language as is, is that correct, as it currently

17 exists in the regulation?

18 A. Yes, because it requires that the

19 District direct and supervise the preparation of

20 that application.

21 Q. I would like you to please turn to

22 page 2 of the petition for adjusted standards. I

23 just want to make sure that I understand what

24 language the District has a problem with.

L.A. REPORTING (312) 419-9292

1 And I believe it is -- is it your

2 testimony that you don't believe the District has

3 the authority to certify under penalty of law that

4 the application and attachments were prepared

5 under its direction or supervision?

6 A. That's correct.

7 Q. But it would be possible for the

8 District to hire an outside consultant or consult

9 with its own experts with respect to the contents

10 of the petition and its attachments; isn't that

11 fair to say?

12 A. With respect to the direction and

13 supervision or the actual contents after it has

14 been prepared?

15 Q. Yes. I would like to single out the

16 word supervision in the law as it exists.

17 Is it fair to say that the District

18 could provide supervision of the application

19 process by simply reviewing the application and

20 reviewing the attachments, whether that would

21 require outside or internal consultants?

22 A. Okay, I am not quite sure if I am

23 understanding what you are asking.

24 Q. Along the lines of providing

L.A. REPORTING (312) 419-9292

1 supervision to the permit application and all

2 attachments that are being submitted to the

3 Illinois EPA, would it be possible for MWRD to

4 provide review of those documents via outside

5 environmental consultants or internal experts,

6 whether it be your lawyers, you chemists, your

7 biologists, your certified professional engineers,

8 or whatever the case may be?

9 A. In the preparation of these documents

10 you are talking about?

11 Q. Yes.

12 A. We would take the position that a

13 governmental entity, such as the District, should

14 not direct or supervise the preparation of the

15 documents that relate to a private operation that

16 is not related to its corporate purpose.

17 Q. I understand that you don't think that

18 is your place. My question is would it be

19 possible for you to provide that review of those

20 documents?

21 A. Well, if we don't -- see, you keep

22 switching your language. Surely we can review

23 documents that Heritage has prepared, and we can

24 hire somebody to do that. The certification

L.A. REPORTING (312) 419-9292

1 speaks to the preparing of the documents. We

2 don't believe that we can send public people, even

3 hiring a consultant, and go to a private firm and

4 direct and supervise the preparation of documents

5 that relate to this private entity's operation.

6 Q. Well, you are the landlord of the

7 facility, correct?

8 A. Surely.

9 Q. You have joint and several liability

10 for any violations that may occur at the facility,

11 correct?

12 A. That's correct.

13 Q. And that would include conditions of a

14 permit, correct?

15 A. That's correct.

16 Q. And other environmental laws and

17 regulations?

18 A. Sure. But the law imposes that

19 liability.

20 Q. I understand.

21 A. So the District has -- I mean, so it

22 doesn't matter whether it falls within the state

23 charter or not.

24 Q. But you have testified that the

L.A. REPORTING (312) 419-9292

1 District has offered to have the permit

2 application reviewed by an outside environmental

3 consultant, correct?

4 A. A permit application that has been

5 prepared by Heritage, yes.

6 Q. Already been prepared?

7 A. Yes.

8 Q. Just to review it to make sure that the

9 District didn't see any obvious problems with it

10 or --

11 A. Surely, absolutely.

12 MR. SCHERSCHLIGT: That is all I have. Thank

13 you very much, Mr. Lowe.

14 HEARING OFFICER KNITTLE: Do we have any

15 redirect, Mr. Biederman?

16 MR. BIEDERMAN: Yes.

17 REDIRECT EXAMINATION

18 BY MR. BIEDERMAN:

19 Q. Mr. Lowe, you testified on

20 cross-examination that the District has signed

21 permit applications. Do you recall that

22 testimony?

23 A. Yes.

24 Q. Can you explain to us the nature of

L.A. REPORTING (312) 419-9292

1 those applications that are signed by the

2 District?

3 A. We are in the business of treating

4 waste water. And there are -- I don't know the

5 specifics, but I am aware of the fact that there

6 are several different types of permits that we

7 must apply for. But those permits under my -- to

8 my understanding are related to our corporate

9 purposes and are permits issued directly to the

10 District, not related to some private entity's

11 operations.

12 Q. So it would be fair to say then that

13 the documents, the permit applications, et cetera,

14 that are executed on behalf of the District, that

15 those documents were, in fact, prepared under the

16 direction and supervision of a District employee;

17 is that correct?

18 A. That is correct.

19 Q. I would like you to turn your attention

20 to the proposed alternate certification section in

21 the petition appearing on page 13. I would like

22 to direct your attention to two requirements that

23 the petitioner is recommending be required when

24 the Board grants the petition.

L.A. REPORTING (312) 419-9292

1 Those requirements are, first, that a

2 licensed Illinois professional engineer sign the

3 permit application on behalf of Heritage and, two,

4 that Heritage demonstrate to the District that it

5 is, in fact, in compliance with all applicable

6 environmental laws and regulations.

7 MR. SCHERSCHLIGT: I am going to object

8 simply because -- and, Mr. Biederman, you may want

9 to rephrase -- there is nothing in there to the

10 effect that it be signed by a professional

11 engineer. I believe it says that it is prepared

12 by a professional engineer.

13 MR. BIEDERMAN: And I would ask -- fine.

14 Then I would qualify my question with the exact

15 language that appears on page 13, that the

16 application be prepared by -- and it does say

17 prepare and sign on behalf of Heritage.

18 MR. SCHERSCHLIGT: Well, perhaps I am not

19 looking at the right page.

20 MS. DOYLE: It is one page before that,

21 Bob, page 13.

22 MR. SCHERSCHLIGT: Because on page 14 I think

23 is what you are proposing.

24 MS. DOYLE: No, no. That is what we are

L.A. REPORTING (312) 419-9292

1 proposing, but it is not what we are looking at

2 now.

3 MR. SCHERSCHLIGT: Well, do you want to ask

4 your question about what you are proposing that

5 the adjusted standard be?

6 MR. BIEDERMAN: I am looking at page 13,

7 section 7, paragraph numbered 1, which reads "that

8 the District is willing to impose the following

9 requirements in the certification, one, require

10 that a professional engineer licensed with the

11 state of Illinois prepare the permit application,

12 request and sign on behalf of Heritage." I would

13 like you to direct your attention to that

14 language.

15 THE WITNESS: Okay.

16 MR. SCHERSCHLIGT: Then I apologize. I was

17 looking at the wrong language. I withdraw the

18 objection.

19 MR. BIEDERMAN: Thank you.

20 BY MR. BIEDERMAN:

21 Q. Secondly, on page 14, the second bullet

22 point reads "require Heritage to demonstrate to

23 the District that it is in compliance with all

24 applicable environmental laws and regulations that

L.A. REPORTING (312) 419-9292

1 apply to the facility." Do you see those two

2 conditions?

3 A. Yes, I do.

4 Q. Do you believe that those conditions

5 assist the District in understanding and making a

6 good faith effort in determining the accuracy of

7 the certification that the District is willing to

8 sign?

9 A. Yes, I would think so.

10 Q. I would like to direct your attention

11 to the certification on page 6. Mr. Lowe, do you

12 see a statement in there that discusses joint and

13 several liability?

14 A. No, I do not.

15 Q. Do you see a statement in there

16 relating to due diligence specifically?

17 A. No, I do not.

18 Q. Do you see a statement in there

19 requiring good faith efforts?

20 A. No, I do not.

21 Q. Now, Mr. Lowe, you testified that it is

22 your belief that the District must, in fact,

23 assure itself of the two conditions that I earlier

24 referred to and, in fact, have a good faith basis

L.A. REPORTING (312) 419-9292

1 for executing the certification as it appears in

2 the amended form in this petition; is that

3 correct?

4 A. That is true.

5 Q. Do you believe that the good faith

6 efforts that are required of the District in

7 executing the alternate certification are the same

8 as the good faith efforts that would be required

9 in signing the certification that appears at

10 page 6?

11 MR. SCHERSCHLIGT: I am going to object.

12 That is kind of a conclusion. That is really a

13 question for the Board to decide.

14 HEARING OFFICER KNITTLE: Mr. Biederman?

15 MR. BIEDERMAN: He has testified as to the

16 good faith efforts that the District is willing to

17 undertake in assuring itself of the accuracy of

18 the certification. I think that this witness is

19 competent to testify and, in fact, has testified

20 as to what the good faith efforts are that the

21 District intends to undertake prior to signing the

22 certification that appears at page 14. And I am

23 just simply trying to ascertain that the good

24 faith efforts really required by each of these two

L.A. REPORTING (312) 419-9292

1 certifications are no different. I think he is

2 competent to testify to that.

3 HEARING OFFICER KNITTLE: The objection is

4 overruled.

5 You can answer, sir.

6 BY MR. BIEDERMAN:

7 Q. Mr. Lowe, do you understand my

8 question?

9 A. Could you read it again just because of

10 the discussion?

11 Q. Sure. I am simply going to ask whether

12 you believe that the good faith requirements that

13 the District is willing to undertake prior to

14 executing the alternate certification at page 14,

15 those good faith efforts are really no different

16 than what would otherwise be required in the

17 certification appearing at page 6; is that

18 correct?

19 A. With respect to the accuracy of the

20 information?

21 Q. Yes.

22 A. Yes.

23 Q. You have testified, Mr. Lowe, that the

24 District does not possess the authority to execute

L.A. REPORTING (312) 419-9292

1 the certification at page 6. My question for you,

2 sir, is do you feel that that problem can be

3 overcome by hiring outside consultants to advise

4 you?

5 A. No, absolutely not. Our problem is in

6 the directing and supervising the preparation of a

7 private entity in matters that is not related to

8 the District corporate purposes. We -- the law

9 department takes a position that that is acting

10 outside the District's scope of authority.

11 Q. And if the District doesn't have that

12 scope of authority, would you agree that it would

13 be unable to delegate that authority to a third

14 party such as a consultant?

15 A. Surely, we couldn't. We can't get

16 around our authority by authorizing a private

17 party to act on our behalf. That doesn't work.

18 MR. BIEDERMAN: Mr. Hearing Officer, could I

19 have just a minute?

20 HEARING OFFICER KNITTLE: Yes.

21 MR. BIEDERMAN: I have no further questions

22 at this time.

23 HEARING OFFICER KNITTLE: Mr. Scherschligt,

24 do you have a recross?

L.A. REPORTING (312) 419-9292

1 MR. SCHERSCHLIGT: Just a moment. Could I

2 have just a few seconds?

3 HEARING OFFICER KNITTLE: Let's go off the

4 record.

5 (Short pause in proceedings.)

6 HEARING OFFICER KNITTLE: We are back on the

7 record.

8 Mr. Scherschligt, do you have any

9 recross examination?

10 MR. SCHERSCHLIGT: Just a couple.

11 RECROSS-EXAMINATION

12 BY MR. SCHERSCHLIGT:

13 Q. Mr. Lowe, you would acknowledge, would

14 you not, sir, that the certification language says

15 "I certify under penalty of law that this document

16 and all attachments were prepared under my

17 direction or supervision"; isn't that correct?

18 A. That is correct.

19 Q. So it is disjunctive; it is direction

20 or supervision, correct?

21 A. That's correct.

22 Q. And would you acknowledge that having

23 the application and any attachments reviewed by

24 consultants or experts of your own or having it

L.A. REPORTING (312) 419-9292

1 reviewed by consultants or experts outside of the

2 District, would you acknowledge that that would be

3 one form of supervision of the application

4 process?

5 A. If, in fact, what you are asking is

6 after the application has been prepared we review

7 that, I don't see that as compliance with that

8 language. I see that language requiring the

9 supervising of the actual preparation of the

10 document, not the review of the finished product

11 of the document.

12 Q. If the Board, and again, if the Board

13 were to conclude that doing exactly what you are

14 willing to do by reviewing the application

15 in-house or seeking advice of experts or

16 consultants outside of MWRD, if the Board were to

17 find that that were adequate supervision for

18 purposes of this certification language, would

19 MWRD be amenable to doing that?

20 A. If, in fact, we got a letter from the

21 IEPA giving us that interpretation or --

22 Q. Or if the Board issued an opinion to

23 that effect?

24 HEARING OFFICER KNITTLE: I think you are

L.A. REPORTING (312) 419-9292

1 referring to the Pollution Control Board,

2 Mr. Scherschligt?

3 MR. SCHERSCHLIGT: Yes.

4 BY MR. SCHERSCHLIGT:

5 Q. If the Illinois Pollution Control Board

6 were to find that it is sufficient supervision for

7 the District to review the application, all

8 attachments, review it in good faith and then to

9 make the assertion that to the best of its

10 knowledge it believes the statements to be true

11 and correct under penalty of purgery, would that

12 be acceptable to MWRD?

13 A. If we got -- if we received a binding

14 statement that we view as a binding statement as

15 to that interpretation, then yes.

16 MR. SCHERSCHLIGT: Thank you.

17 HEARING OFFICER KNITTLE: Anything further,

18 Mr. Scherschligt?

19 MR. SCHERSCHLIGT: No. Thank you.

20 HEARING OFFICER KNITTLE: Mr. Biederman, any

21 re-redirect?

22 MR. BIEDERMAN: No.

23 HEARING OFFICER KNITTLE: Sir, you can step

24 down.

L.A. REPORTING (312) 419-9292

1 Let's go off the record for a second.

2 (Discussion had off the

3 record.)

4 (Whereupon the hearing was

5 recessed until 1:00 p.m. this

6 date, September 5, 2000.)

7 - - - -

8 A F T E R N O O N S E S S I O N

9 HEARING OFFICER KNITTLE: We are back on the

10 record after a lunch recess. It is 1:00 o'clock

11 in the afternoon. And I want to note for the

12 record that there are still no members of the

13 public, aside from the next witness's daughter,

14 present.

15 Mr. Biederman, it is still your

16 case-in-chief. You can call your next witness.

17 MR. BIEDERMAN: My next witness will be Gary

18 Lindgren.

19 HEARING OFFICER KNITTLE: Could you swear

20 him?

21 (Witness duly sworn.)

22 HEARING OFFICER KNITTLE: Mr. Biederman, your

23 witness.

24 MR. BIEDERMAN: Thank you.

L.A. REPORTING (312) 419-9292

1 GARY LINDGREN,

2 called as a witness herein on behalf of Heritage

3 Environmental Services, having been first duly

4 sworn, was examined and testified as follows:

5 DIRECT EXAMINATION

6 BY MR. BIEDERMAN:

7 Q. Sir, would you state your name for the

8 record, please?

9 A. My name is Gary Frank Lindgren.

10 Q. Mr. Lindgren, by whom are you employed?

11 A. I am employed by Heritage Environmental

12 Services.

13 Q. And how long have you been employed by

14 Heritage Environmental Services?

15 A. In a few weeks it will be 15 years.

16 Q. And where do you reside?

17 A. I reside in Zionsville, Indiana.

18 Q. Could you review for us your

19 educational background, please?

20 A. I have a Bachelor of Science and a

21 Master's degree in environmental policy from

22 Indiana University.

23 Q. What is your current position with

24 Heritage?

L.A. REPORTING (312) 419-9292

1 A. I am vice president of operations and

2 compliance.

3 Q. And how long have you served in this

4 capacity?

5 A. I have been vice president of

6 compliance, a portion of it, since 1992. I have

7 been vice president of operations for roughly a

8 year and a half.

9 Q. Are you familiar with the facility that

10 is located in Lemont, Illinois?

11 A. Yes, I am.

12 Q. Can you describe for us your

13 responsibilities with respect to that facility?

14 A. My responsibilities for that is general

15 review of its performance and direct supervision

16 of the management team outside.

17 Q. Do you have occasion to visit that

18 facility on a periodic basis?

19 A. Yes, I do.

20 Q. And explain to us what the nature of

21 your visits are.

22 A. The nature of my visits are for several

23 reasons. We would conduct management operations

24 reviews where we would deal with our safety

L.A. REPORTING (312) 419-9292

1 record, our compliance issues and with our

2 financial performance. Also we have customer open

3 houses and various other employee events that

4 cause me to visit the facility.

5 Q. Are there individuals that are employed

6 at the Lemont facility that report to you

7 directly?

8 A. Yes, there are.

9 Q. Can you describe that for me?

10 A. The plant manager, whose name is Dave

11 Manley, is a direct report to me. The plant

12 compliance manager, whose name is Kent Percel, dot

13 line reports to me. As VP of operations, all of

14 those -- the employees there at the treatment

15 center would be within my chain of command.

16 Q. Is it fair to say that you are

17 responsible within the organization for that

18 facility?

19 A. It would be fair to say that in a

20 general sense.

21 Q. Okay. Mr. Lindgren, could you tell us

22 how long Heritage has owned and operated that

23 facility?

24 A. Heritage has owned and operated the

L.A. REPORTING (312) 419-9292

1 improvements to the property and the tank farms,

2 for example, since roughly 1987 through a joint

3 venture -- initially through a joint venture with

4 another company called Petrokemp Services, which

5 Heritage purchased on or about 19 -- the mid '80s

6 and subsequently bought out all the interest of

7 Petrokemp Services and has operated it as Heritage

8 Environmental Services since that time.

9 Q. Can you also tell us, Mr. Lindgren, who

10 owns the real property upon which the facility is

11 located?

12 A. The real property is owned by the

13 Metropolitan Water Reclamation District.

14 Q. But the improvements to that facility

15 have all been made by Heritage Environmental

16 Services?

17 A. The improvements have all been made by

18 Heritage and the predecessor owner of the

19 facility, Petrokemp.

20 Q. Mr. Lindgren, are you familiar with the

21 various permits that have been issued to Heritage

22 with respect to the Lemont facility, including the

23 facility's RCRA permits?

24 A. Yes, I am generally familiar with

L.A. REPORTING (312) 419-9292

1 those.

2 Q. And how have you made yourself aware of

3 those permits?

4 A. I manage what we call the corporate

5 compliance department, which is the people who

6 physically prepare those -- the permit

7 application. I review draft versions of it, ask

8 questions and see that whatever changes are needed

9 get made in the final version that goes to the

10 agency.

11 Q. So you would be that person within the

12 organization who is most familiar with the

13 compliance history of that facility?

14 A. Yes, generally.

15 Q. Can you describe for us the compliance

16 history of this facility?

17 A. I think the facility has an excellent

18 compliance history, not without blemishes, but we

19 have routine inspections by the Illinois

20 Environmental Protection Agency. And its more

21 often than not the results of the inspection are

22 that the company's activities are in compliance

23 with the permit as determined by the inspector.

24 Q. And what measures have -- what measures

L.A. REPORTING (312) 419-9292

1 has Heritage implemented to ensure that the

2 facility is in compliance with applicable

3 regulations?

4 A. Okay. First, we hired, for our

5 management staff especially, qualified people with

6 experience. We have a person whose sole function

7 is to be what we call the plant compliance

8 manager. That person straight line reports to the

9 plant manager and dot line reports to me, has my

10 -- in my function of overseeing corporate

11 compliance at this facility and other facilities.

12 We have active training programs,

13 including advanced interactive CD-rom training to

14 ensure that not only our management staff but also

15 our employees are up-to-date on what we expect

16 them to know and to do.

17 We also have an internal audit program,

18 which is performed by one of my staff members,

19 whose function is to audit all of our facilities

20 and maintain compliance.

21 Q. Can you briefly describe for us the

22 nature of the operations at the Lemont facility

23 including control equipment that are utilized by

24 that facility?

L.A. REPORTING (312) 419-9292

1 A. The Lemont facility is a waste storage

2 treatment and transfer facility where we manage

3 hazardous waste there, various types in containers

4 -- largely in containers, some in bulk. There is

5 no disposal that takes place on-site. But we

6 blend various types of organic liquids together to

7 make a fuel that is sent to a cement kiln.

8 We pack and we repackage various

9 laboratory chemicals for off-site disposal. And

10 then trains ship materials to other facilities,

11 some of which are owned by Heritage and some of

12 which are owned by other companies, for such

13 purposes as incineration, waste water treatment,

14 things of that nature.

15 Q. Do you know in general how many

16 different hazardous waste facility permits a

17 facility is to receive?

18 A. In the hundreds as outlined in our

19 part A and part B permit application and permit

20 documents, different codes.

21 Q. Can you describe for us some control

22 equipment that is present in the facility that

23 will assist in complying with RCRA regulations?

24 A. Starting with the facility's own

L.A. REPORTING (312) 419-9292

1 bedrock, all of our waste management activities

2 are performed on paved areas. Our storage

3 activities are within secondary containment. We

4 have engineering controls for storm water run-off

5 as well as -- you know, concrete dikes that

6 capture run-off that would directly touch a

7 container or a storage tank.

8 We also have air emission control

9 devices which include activated carbon filters.

10 And we have a boiler which combusts aerosol can

11 propellants.

12 Q. And it is your opinion, sir, that today

13 Heritage is in compliance with all applicable

14 environmental laws and regulations with respect to

15 the Lemont facility?

16 A. We are in material compliance with

17 applicable laws, rules, regulations. That is our

18 goal.

19 Q. And, sir, is it also your opinion that

20 the facility possesses systems of internal

21 controls to continue to evaluate its compliance

22 and assure that it remains in material compliance

23 with all applicable environmental laws and

24 regulations?

L.A. REPORTING (312) 419-9292

1 A. It is my opinion that the facility when

2 combined with the corporate oversight role

3 possesses such systems.

4 Q. Now, Mr. Lindgren, you have discussed

5 the corporate oversight role. Does Heritage own

6 and manage other facilities other than the one in

7 Lemont?

8 A. Heritage owns and operates seven other

9 part B permitted facilities across the country.

10 Q. Would you also be -- would you be

11 responsible for compliance at those seven other

12 RCRA facilities?

13 A. Yes.

14 Q. Can you briefly describe the other

15 facilities for us?

16 A. We have a facility in Burlington,

17 Vermont, which is a container storage facility.

18 We have a facility in Charlotte, North Carolina,

19 which is a treatment and storage facility. We

20 have a facility in Indianapolis, Indiana, which is

21 a treatment and storage facility. We have a

22 facility near Roachdale, Indiana, which is a land

23 disposal facility.

24 We have a facility in Kansas City,

L.A. REPORTING (312) 419-9292

1 Missouri, which is a treatment disposal facility.

2 We have a facility outside Phoenix, Arizona, which

3 is a storage facility. We have a facility in

4 Caldwell, Texas, which is currently inactive,

5 which is a storage facility.

6 Q. Mr. Lindgren, can you describe for us

7 the operations of the Lemont facility and the

8 periodic need for permit modifications of its RCRA

9 permit?

10 A. Okay. I think I have generally

11 discussed the operations of the Lemont facility

12 previously. We accept waste materials in tank

13 trucks and containers, but there are three general

14 causes for us to reevaluate our permits and

15 whether we can or need to or want to modify those.

16 The first cause is changes in rules and

17 regulations which might add waste codes or impose

18 additional or changed requirements upon the

19 facility. The second requirement or second

20 instance where we would want to evaluate our

21 permit, whether we might need to modify it would

22 be changes in technologies available. There has

23 been changes in computer technology that are

24 available that would make our activities at the

L.A. REPORTING (312) 419-9292

1 facility more efficient, for example. And also

2 there is changes in the marketplace. As

3 manufacturing firms have minimized their waste,

4 there are changes, not necessarily in the waste

5 codes that apply to the waste materials, but what

6 type of matrix they are, they are presented to us

7 as.

8 For example, instead of clear liquids,

9 we receive a lot of sludges and muck, for lack of

10 a better term, because people have minimized their

11 waste on-site and present us with the same waste

12 but in a different physical state.

13 Q. Is it fair to say that the part B

14 permit that Heritage has is very detailed in the

15 description of the operations that it permits and

16 that any deviation from those operations as

17 described in your permit -- part B permit would

18 require a modification of that permit?

19 A. It is detailed. And in many instances

20 just to give you an example, we are required to

21 provide the name, home addresses, home phone

22 numbers, pager numbers, cellphone numbers for

23 management personnel that might be called upon to

24 respond in case of an emergency at the facility,

L.A. REPORTING (312) 419-9292

1 so detailed that we would be required to submit a

2 permit modification if the area code was changed,

3 for example, at the facility to change that part

4 of our permit that specifies those members of our

5 -- of those employees that have that

6 responsibility.

7 Q. Describe for me, if you will, the

8 process of modifying that permit. What is

9 entailed in modifying that permit, and in

10 particular, what signatures need to be obtained in

11 submitting that permit modification to the

12 appropriate regulatory agencies?

13 A. In general there is three different

14 classes of modifications. You know, I guess you

15 can say minor, moderate and major. But you know,

16 it is different states use different nomenclature,

17 class I, class II, class III.

18 In terms of the protocol, obviously,

19 the petition has to be made to the Illinois EPA to

20 change something. That petition in Illinois has

21 to be signed by both the owner and operator. And

22 so it has to be signed by Heritage, typically by

23 myself. And it has to be signed by a

24 representative of the water district in order for

L.A. REPORTING (312) 419-9292

1 it to be, you know, automatically accepted as a

2 valid petition for modification by the Illinois

3 EPA. And then depending on what level of permit

4 it is, there may or may not be a public hearing or

5 public meeting, comments, things of that nature.

6 Q. So is it true to say that even a change

7 in the cellphone number of an individual that is

8 responsible for emergency response would entail a

9 permit modification and require the signatures of

10 both Heritage and the owner of the real property

11 where the facility is located?

12 A. That is my understanding.

13 Q. In your experience how many permit

14 modifications are typically required in managing

15 such a facility over a period of time? And let's

16 focus on a period of time of being one year.

17 A. Well, again, depending on changes in

18 the rules, on changes in technology and changes in

19 the marketplace, you know, it wouldn't be

20 impossible to have three modifications in a year

21 of varying levels. And that assumes a stable

22 management team, stable area code numbers and

23 people that don't -- you know, emergency

24 coordinators and manager team members that don't

L.A. REPORTING (312) 419-9292

1 move from one place to another within the general

2 area.

3 Q. Are you aware of the fact that Heritage

4 has had difficulty in obtaining such permit

5 modifications in the past?

6 A. Yes, I am aware.

7 Q. And can you describe for us the

8 difficulties that Heritage has had?

9 A. The difficulties largely have been

10 obtaining a signature of the owner of the real

11 property.

12 Q. Is it fair to say that if a resolution

13 is obtained to the certification of the owner of

14 the property, that that resolution will allow

15 Heritage to operate this facility in a compliant

16 manner and that, in fact, the state of the

17 operations and perhaps even the compliance would

18 benefit as a result of the owner's ability to sign

19 permit modifications?

20 MR. SCHERSCHLIGT: Objection, no foundation.

21 HEARING OFFICER KNITTLE: I will sustain the

22 objection.

23 BY MR. BIEDERMAN:

24 Q. Mr. Lindgren, you have testified that

L.A. REPORTING (312) 419-9292

1 you are familiar with the permit that is held by

2 Heritage at the Lemont facility; is that correct?

3 A. That's correct. I am generally

4 familiar with the permit at the Lemont facility.

5 Q. And you are familiar with permit

6 modifications that are required on a periodic

7 basis; is that correct?

8 A. I am familiar with RCRA permit

9 modifications, yes.

10 Q. Specific to the Lemont facility?

11 A. Yes.

12 Q. And you are familiar with the process

13 of obtaining a permit modification at the Lemont

14 facility?

15 A. Yes, I am.

16 Q. And you are also familiar with the

17 relationship that Heritage enjoys with the owner

18 of the property, the owner being the Metropolitan

19 Water Reclamation District; is that correct?

20 A. I am generally familiar with that, yes.

21 Q. And you are aware of the needs of the

22 facility in terms of a compliance perspective; is

23 that correct?

24 A. Yes, I am.

L.A. REPORTING (312) 419-9292

1 Q. Is it fair to say that if Heritage is

2 able to readily obtain the signature of the owner

3 of the facility that it would enhance the

4 performance of this facility?

5 A. I would say it would both not only

6 enhance the performance of the facility, but would

7 allow for additional investment at the facility.

8 Q. Can you explain that?

9 A. As the nature of wastes change, the

10 nature of the equipment necessary to most

11 efficiently process the waste also changes. I

12 mentioned just one example, instead of easily

13 pumpable materials, we get less than easily

14 pumpable materials. So we would be able to invest

15 in different and better pumps, shredders, sizing

16 equipment and things of that nature that would

17 allow us to take a broader range of waste

18 materials that would carry the exact same codes

19 and even the same shipping descriptions.

20 Q. Are you familiar with how the District

21 has been involved with the facility and in

22 particular with assuring itself that the

23 provisions of the lease that was executed between

24 the District and Heritage are being met?

L.A. REPORTING (312) 419-9292

1 MR. SCHERSCHLIGT: Objection. I would object

2 to this witness being able to testify what MWRD

3 believes with respect to acquiring permits or

4 signatures or -- I am not real sure what the

5 question is calling for. But it is asking for

6 MWRD's understanding or impression.

7 HEARING OFFICER KNITTLE: Could you read it

8 back for us?

9 (Record read as requested.)

10 MR. SCHERSCHLIGT: I would only object to the

11 second part of that question. I have no objection

12 to asking him if he is -- I don't know if you want

13 to --

14 HEARING OFFICER KNITTLE: I think

15 Mr. Biederman was withdrawing the second part of

16 the question.

17 MR. BIEDERMAN: Yes. And in fact, let me

18 withdraw the question and ask the question in a

19 different way.

20 HEARING OFFICER KNITTLE: Okay.

21 BY MR. BIEDERMAN:

22 Q. You are familiar with the relationship

23 that Heritage enjoys with the District, the owner

24 of the property; is that correct?

L.A. REPORTING (312) 419-9292

1 A. Yes.

2 Q. And can you describe for us what

3 Heritage does in order to inform the District of

4 Heritage's compliance with the law and with the

5 lease that was executed between the parties?

6 A. There has been various meetings and

7 conversations between various officers and

8 managers of Heritage and representatives of the

9 District. We certainly copied -- you know, we

10 copied them on correspondence to the agency. We

11 are under the impression that the agency also

12 copies them on correspondence from the agency to

13 Heritage.

14 I have been informed that there have

15 been representatives of the District on the Lemont

16 property for various purposes. The specifics of

17 which, you know, evidently weren't out of the

18 ordinary because they weren't relayed to me, only

19 that the District has been on-site.

20 Q. Mr. Lindgren, you are familiar with

21 the alternative certification that Heritage has

22 proposed, and that certification is included in

23 the petition at page 14; is that correct?

24 A. That's correct.

L.A. REPORTING (312) 419-9292

1 Q. You are also familiar with the

2 certification that appears in the regulations, and

3 that certification is laid out at page 6 of the

4 petition; is that correct?

5 A. That's correct.

6 Q. Based upon your understanding of the

7 nature of the compliance and the compliance

8 efforts that are undertaken at this facility, is

9 it true to say that the adjusted standard, if it

10 is granted by the Board, will have no effect on

11 the nature of the operations in the compliance of

12 the facility?

13 A. That is true. You know, an alternative

14 certification grant in the District will not alter

15 our operating philosophies or our compliance

16 practices or resources allocated to them or the

17 nature of what we do at that facility.

18 Q. So that I am clear, is it your

19 testimony that if the Board grants the adjusted

20 standard that Heritage is seeking, that that will

21 not result in any environmental or health effects

22 that are different than the current operations

23 today?

24 A. Yes, that is my understanding.

L.A. REPORTING (312) 419-9292

100

1 Q. Is it true to say that an alternative

2 certification that will provide a more timely

3 permit modification process will allow you to

4 remain competitive in the marketplace?

5 A. That is true. I would further state it

6 is necessary to the long-term viability of the

7 facility. For example, if the District doesn't

8 sign our permit renewal application and the

9 Illinois EPA doesn't accept, you know, a modified

10 standard or any altered signature, then we are out

11 of business there.

12 Q. How many people are employed at the

13 Lemont facility?

14 A. I would say rough -- right around

15 70 people all told, which would include

16 professionals, field personnel and plant

17 personnel.

18 MR. BIEDERMAN: I would like just a moment to

19 review my notes, but I think I am finished.

20 Subject to any redirect, I have no

21 further questions.

22 HEARING OFFICER KNITTLE: Okay.

23 Mr. Scherschligt, do you have cross?

24 MR. SCHERSCHLIGT: Just very briefly, I

L.A. REPORTING (312) 419-9292

101

1 believe.

2 CROSS-EXAMINATION

3 BY MR. SCHERSCHLIGT:

4 Q. Mr. Lindgren, am I saying that right?

5 A. Uh-huh.

6 Q. To your knowledge, are there any

7 periodic or regular inspections, compliance

8 inspections conducted by MWRD at the Heritage

9 facility?

10 A. I have been unable to detect any

11 pattern that would cause me to say they are

12 routine like, for example, monthly or quarterly or

13 semiannually.

14 Q. Have you ever known MWRD to send

15 somebody to your facility and actually do a

16 compliance inspection with a checklist and a copy

17 of the permit to ascertain compliance with that

18 permit or other laws and regulations?

19 A. No, I am unaware of that. I am sure I

20 would have been told if that were the case.

21 Q. Just so I understand what Heritage is

22 asking for, am I correct in my understanding that

23 Heritage itself is willing to sign a permit

24 application with the current certification

L.A. REPORTING (312) 419-9292

102

1 language as it is in the regulation?

2 A. Absolutely.

3 Q. So this adjusted standard, this relaxed

4 certification language, if you will, is mainly for

5 the benefit of MWRD so that it will feel

6 comfortable in signing a permit application; is

7 that correct?

8 A. I guess I would look at it from a

9 different angle, that it is for the benefit of

10 Heritage so we can continue our activities there.

11 Q. But it is MWRD who has a problem with

12 the certification language as it exists in the

13 regulation; isn't that correct?

14 A. That is my understanding, yes.

15 Q. Now, the adjusted standard as is

16 proposed or the language that is being proposed on

17 page 14 of your petition, there is no

18 representation in that language such that these

19 certifications are being made under penalty of law

20 or penalty of purgery, correct?

21 A. Not being a lawyer, I don't know how to

22 answer the last part of that with --

23 Q. Well, do you see any language in there

24 to the effect that it is being certified under

L.A. REPORTING (312) 419-9292

103

1 penalty of law, any words penalty of law in there?

2 MR. BIEDERMAN: Object to the question. The

3 language speaks for itself.

4 HEARING OFFICER KNITTLE: Yes, I would

5 sustain that.

6 MR. SCHERSCHLIGT: Okay. Fair enough.

7 BY MR. SCHERSCHLIGT:

8 Q. In the past when you have submitted

9 permit applications to the agency on behalf of

10 Heritage, has MWRD taken a liberty to read and

11 review those permit applications and provide

12 comment?

13 A. I know we have submitted draft versions

14 of them to the District. I cannot recall getting

15 comments back.

16 Q. So you never, to your knowledge, have

17 -- to your knowledge -- and I am not asking

18 anybody else at the facility. But to your

19 knowledge, they have never provided comment or any

20 proposed revisions to the permit applications?

21 A. I would say yes to my knowledge, but I

22 have a full-time engineer that actually does the

23 details and would better know the answer to that

24 question.

L.A. REPORTING (312) 419-9292

104

1 Q. You testified that sometimes you may

2 find it necessary to do a permit application to

3 change the cellphone number of an emergency

4 response personnel --

5 A. Uh-huh.

6 Q. -- is that correct?

7 A. Yes.

8 Q. You would certainly want MWRD to know

9 the number of that person, would you not, if it

10 changed?

11 A. Yes, I would.

12 Q. You would want them to review that

13 application and take note of the change in number,

14 would you not?

15 A. We would want them to know that we have

16 made that change?

17 Q. Yes.

18 A. I mean, the emergency coordinator list

19 is basically Heritage personnel and Heritage

20 subcontractors we would call in to respond to an

21 emergency.

22 Q. But would you certainly expect MWRD to

23 want to know the names and numbers of those

24 individuals as well, wouldn't you?

L.A. REPORTING (312) 419-9292

105

1 MR. BIEDERMAN: Object to the form of the

2 question. It calls for speculation.

3 HEARING OFFICER KNITTLE: Mr. Scherschligt,

4 response?

5 MR. SCHERSCHLIGT: Well, if MWRD is signing

6 the permit application and they are the ones who

7 -- seemingly they would want to review that permit

8 application and know that there is going to be a

9 change.

10 HEARING OFFICER KNITTLE: I have no flaw with

11 your logic, but I have to sustain the objection

12 because this witness can't testify to that.

13 MR. SCHERSCHLIGT: Thank you. Just one

14 moment.

15 I don't have anything further.

16 HEARING OFFICER KNITTLE: Mr. Biederman, do

17 you have a redirect examination?

18 MR. BIEDERMAN: I have no redirect

19 examination at this time.

20 HEARING OFFICER KNITTLE: Sir, thank you for

21 your time. You are no longer under oath.

22 Mr. Biederman, do you have any other

23 witnesses you wish to call in this case?

24 MR. BIEDERMAN: No, I do not.

L.A. REPORTING (312) 419-9292

106

1 HEARING OFFICER KNITTLE: Mr. Scherschligt,

2 do you have any witnesses for the Illinois

3 Environmental Protection Agency?

4 MR. SCHERSCHLIGT: I don't believe so. We

5 don't -- we are not going to put on a

6 case-in-chief.

7 HEARING OFFICER KNITTLE: Okay. Before we

8 get started on closing arguments, I do note that

9 we have three exhibits that have been discussed

10 anyway. We have Petitioner's Exhibit No. 1, which

11 was the document talking about what has been

12 included in the record. That was admitted. But

13 Petitioner's 2 and Petitioner's 3 have never been

14 offered.

15 MR. BIEDERMAN: I thought I offered

16 Petitioner's Exhibit No. 2 and I withdrew

17 Petitioner's Exhibit No. 3.

18 HEARING OFFICER KNITTLE: Was that your

19 intention?

20 MR. BIEDERMAN: Yes.

21 MR. SCHERSCHLIGT: Just so we are clear,

22 No. 3 is that single-page --

23 HEARING OFFICER KNITTLE: -- certificate.

24 MR. SCHERSCHLIGT: Fair enough.

L.A. REPORTING (312) 419-9292

107

1 HEARING OFFICER KNITTLE: Let's take them one

2 by one because I haven't ruled on them.

3 Petitioner's No. 2 is the lease. You

4 are offering that now?

5 MR. BIEDERMAN: Yes.

6 HEARING OFFICER KNITTLE: Mr. Scherschligt,

7 do you have any objection to that?

8 MR. SCHERSCHLIGT: No objection.

9 HEARING OFFICER KNITTLE: That is admitted.

10 (Whereupon document so offered

11 was received in evidence as

12 Petitioner's Exhibit No. 2.)

13 HEARING OFFICER KNITTLE: And Petitioner's

14 No. 3 was withdrawn; is that correct?

15 MR. BIEDERMAN: That's correct.

16 HEARING OFFICER KNITTLE: So we won't worry

17 about that.

18 I want to note one last time for the

19 record that no members of the public are present.

20 Were they here, they would be given an opportunity

21 to provide public comment, which the Board is

22 always eager to receive on any particular case.

23 But there being no members of the public here, we

24 will skip over that portion and I move right to

L.A. REPORTING (312) 419-9292

108

1 closing arguments.

2 Mr. Biederman, Mr. Scherschligt, you

3 have the opportunity to make a closing argument or

4 you can waive it and cover it in your briefs or

5 you can do both.

6 MR. BIEDERMAN: I would like to make a very

7 brief closing argument.

8 HEARING OFFICER KNITTLE: Go right ahead.

9 MR. BIEDERMAN: Thank you.

10 CLOSING ARGUMENT

11 BY MR. BIEDERMAN:

12 Mr. Hearing Officer, representatives of

13 the IEPA, first of all, let me thank you for your

14 patience and in particular for IEPA's patience and

15 assistance throughout the course of the years that

16 this matter has been considered.

17 Heritage is proud of the

18 state-of-the-art RCRA facility that it has built

19 in Lemont, Illinois. Heritage's facility is

20 managed by trained professionals and offers the

21 marketplace a safe choice for the disposal, the

22 management of hazardous waste. It is within the

23 public interest that generators of hazardous waste

24 have as an alternative Heritage's management of

L.A. REPORTING (312) 419-9292

109

1 their waste at this facility and that they

2 continue to operate within the framework of the

3 RCRA regulations.

4 This facility must not be forced to

5 cease operations due to a blind application of the

6 regulations forcing the District to undertake the

7 burdensome task of either co-supervising

8 Heritage's application process, a process that,

9 according to the testimony today, the District

10 does not have the legal authority to undertake,

11 or, alternatively, to simply commit purgery.

12 A legal result that one federal circuit

13 court has called irrational and perverse, the

14 United States Court of Appeals for the Ninth

15 Circuit would not require such a result and

16 instead allowed an alternative certification in

17 keeping with Congress's intent and one that

18 satisfies the underlying objectives of the RCRA

19 regulations. We ask for nothing more here today.

20 The record is now complete. Included

21 within the record is evidence on each of the four

22 requirements that Heritage must prove in obtaining

23 its adjusted standard. And I will briefly

24 summarize each of those four requirements. The

L.A. REPORTING (312) 419-9292

110

1 first of the four requirements states: "Factors

2 relating to that petitioner are substantially and

3 significantly different from the factors relied

4 upon by the Board in adopting the general

5 regulation applicable to that petitioner." I

6 submit to you that the factors relating to this

7 petitioner are very unique and justifies an

8 adjusted standard in this case. In the instant

9 case Heritage leases the property from a

10 governmental authority that is not authorized to

11 execute the certification as it appears in the

12 regulations. There can be no doubt that neither

13 the Board nor U.S. EPA considered such

14 circumstances.

15 The circumstances in the instant case

16 are, in fact, unique and do justify relief by this

17 Board.

18 The second of the four factors is that

19 "the existence of these factors justifies an

20 adjusted standard." The unique situation of

21 having an owner of the facility as a governmental

22 entity that is unable to execute the certification

23 in and of itself justifies this adjusted standard.

24 Moreover, the public policy behind what we are

L.A. REPORTING (312) 419-9292

111

1 seeking also justifies an adjusted standard. We

2 have indicated earlier today through testimony

3 here before you that it is in the public interest

4 that this facility be allowed to continue to

5 operate. It provides the marketplace with an

6 alternative for the management of hazardous waste

7 and an alternative that is compliant with the

8 spirit and the letter of the RCRA regulations.

9 As proven by the evidence, Heritage is

10 a responsible and compliant operator. The

11 marketplace needs such facilities. The fact that

12 the Board is not -- that the District is not

13 empowered to execute the certification justifies

14 this Board in granting Heritage's adjusted

15 standard.

16 The third requirement is "the requested

17 standard will not result in environmental or

18 health effects substantially and significantly

19 more adverse than the effects considered by the

20 Board in adopting the rule of general

21 applicability." You have heard the testimony of

22 Mr. Gary Lindgren who has testified that if its

23 co-permittee, the District, is allowed to execute

24 the proposed alternate certification, it will have

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1 no effect on the compliance history of this

2 facility. It will have no effect on the

3 compliances -- on the facility's compliance and

4 protection of human health and the environment in

5 the future.

6 The last requirement is that the

7 adjusted standard is consistent with applicable

8 federal law. Heritage has proposed an alternative

9 certification that Mr. Carlton Lowe has testified

10 is acceptable to the District. The proposed

11 certification complies with applicable federal

12 law. United States Court of Appeals for the Ninth

13 Circuit carefully analyzed the regulatory history

14 of this certification and analyzed the federal law

15 in the public policy behind that certification.

16 After considering the regulatory

17 history of this requirement, the court held, and I

18 quote, a simple certification setting forth the

19 owner's knowledge of the activity on his property

20 and his liability for that activity would satisfy

21 both EPA's and Congress's objectives. You have

22 heard the testimony of Mr. Carlton Lowe. We have

23 here today a co-permittee that is very

24 sophisticated. The District understands and the

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1 testimony here today proves that the District

2 understands the liability that results from the

3 ownership of real property wherein a RCRA

4 management facility is located. There can be no

5 doubt and the record is clear on that point.

6 The certification proposed by Heritage

7 satisfies both EPA's and Congress's objectives.

8 We ask that the Board relieve the District of the

9 requirement that it execute a certification

10 attesting to a fiction that does not advance the

11 objectives of the RCRA regulations.

12 Heritage's adjusted standard is

13 conditioned on the requirement that an Illinois

14 licensed professional engineer execute the

15 certificate and that Heritage must demonstrate to

16 the District that it is in material compliance

17 with all applicable environmental laws and

18 regulations, thus fulfilling the District's

19 requirement that it have a good faith belief in

20 the certification that it signs.

21 The proposed conditions assure the

22 District that the District establishes a good

23 faith belief in the truth of the application it

24 executes. I believe that the record is clear and

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1 is compelling, and we would ask that the Board

2 grant the proposed certification language as

3 identified in our petition for an adjusted

4 standard. Thank you.

5 HEARING OFFICER KNITTLE: Thank you.

6 Does anybody from the Illinois

7 Environmental Protection Agency have a closing

8 argument they wish to make at this point?

9 MR. SCHERSCHLIGT: Yes.

10 CLOSING ARGUMENT

11 BY MR. SCHERSCHLIGT:

12 Mr. Hearing Officer, Mr. Biederman,

13 Ms. Doyle, Mr. Gurnik, members of the Illinois

14 Pollution Control Board, we would submit that the

15 petition for adjusted standard falls substantially

16 short of the level of justification that is

17 required by Section 28.1(c) of the Illinois

18 Environmental Protection Act. And I too will go

19 down the list.

20 There are four subparts to that section,

21 and the first being factors relating to that

22 petitioner are substantially and significantly

23 different than the factors relied upon by the

24 Board in adopting the general regulation

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1 applicable by the petitioner. The Illinois EPA

2 would submit that the evidence that we have heard

3 here today, the factors that we have heard here

4 today, relate not really to the petitioner, but to

5 MWRD. And that is in large part why the Illinois

6 EPA in its response to the petition asserts that

7 this really should be dismissed because the

8 interested party here is MWRD and they are not a

9 party to the action.

10 What we have heard basically is that

11 MWRD does not believe that it has the authority,

12 although we weren't really given any specific

13 reasons for their belief, but they assert that

14 they don't have the authority to sign the

15 certification language as it exists when, in fact,

16 those are factors -- those are specific factors

17 that the Illinois -- or that the United States

18 Environmental Protection Agency and Congress took

19 into consideration when they adopted the federal

20 RCRA regulations. In fact, the Agency's response

21 cites to volume 45 of the Federal Register,

22 page 33169. And I would encourage the Board to

23 read that part of the Federal Register because

24 Congress and U.S. EPA does take into consideration

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1 the fact that sometimes there will be an absentee

2 land owner.

3 But because of Congress's policy

4 consideration and because of USEPA's policy

5 consideration that land owners be joint -- not

6 only jointly and severally liable for any

7 resulting violations, but that they also be

8 jointly and severally responsible for compliance,

9 I would submit that MWRD has no way of being

10 jointly responsible for compliance if they are not

11 willing to adequately read and review any permit

12 application that is submitted by Heritage to the

13 Illinois EPA. And if they are going to be jointly

14 responsible, it is necessary for them to take an

15 active -- a proactive role, approach to the

16 facility to make sure that they know what is going

17 on at the facility. Not that they take more of a

18 hands-off approach, but that they know exactly

19 what is going on on their property because they

20 are jointly responsible for compliance and they

21 are jointly responsible and liable for any

22 violations.

23 Then with respect to item No. 2, "the

24 existence of those factors justifies an adjusted

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1 standard," well, I would submit that that has not

2 been met simply because there has been no

3 demonstration that the factors relating to the

4 petitioner were substantially and significantly

5 different than the factors relied upon by U.S.

6 EPA, Congress and the Board when they adopted them

7 as pass-through regulations. So No. 1 and 2 have

8 not been met.

9 With respect to item No. 3, "requested

10 standard will not result in any environmental or

11 health effects," well, if MWRD does not have

12 knowledge or can certify to the contents of the

13 applications for permits, then how are they going

14 to be able to police or supervise the activities

15 that occur at their property? So it is very

16 conceivable that there could be adverse

17 environmental or health effects if they are not

18 activity involved in the permitting process.

19 And finally, we would submit that the

20 Ninth District Federal Court of Appeals case is

21 the law of that one particular case. It is not

22 the federal law. The federal regulation has

23 remained the same and the state regulation is

24 identical to that federal regulation.

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1 If the Board were to accept the

2 proposed adjusted standard, it would effectively

3 be accepting a standard that is less stringent

4 than the federal RCRA regulation. And for those

5 reasons and for the reasons that we will further

6 elaborate in our brief, we would recommend that

7 the petition be, if not dismissed, that the

8 petition be denied. Thank you.

9 HEARING OFFICER KNITTLE: Mr. Biederman, any

10 final closing arguments? You have an opportunity

11 under our regulations to have the last say, so to

12 speak.

13 MR. BIEDERMAN: Thank you. Could I have just

14 a minute, please?

15 HEARING OFFICER KNITTLE: You may.

16 MR. BIEDERMAN: Thank you.

17 (Short pause in proceedings.)

18 HEARING OFFICER KNITTLE: Anything further,

19 Mr. Biederman?

20 MR. BIEDERMAN: Yes.

21 REBUTTAL CLOSING ARGUMENT

22 BY MR. BIEDERMAN:

23 The testimony here today as well as the

24 evidentiary record is clear that Heritage is

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1 justified in seeking the adjusted standard so that

2 its co-permittee can certify in a timely fashion

3 RCRA documents in order for this facility to

4 operate in a compliant manner in an ever-changing

5 marketplace.

6 I believe that that is a fair result

7 and that that is a result that public policy and

8 the citizens of the state of Illinois deserve.

9 I have nothing further.

10 HEARING OFFICER KNITTLE: Thank you, sir.

11 Let's go off the record.

12 (Discussion had off the

13 record.)

14 HEARING OFFICER KNITTLE: We are back on the

15 record after talking about briefing schedules off

16 the record. Briefs will be due as follows: First

17 off, there will be a written public comment

18 period. Written public comments will be due at

19 the Board on or before September 20th.

20 Petitioner's brief will be due on or about

21 September 27th, with the Illinois Environmental

22 Protection Agency's brief due on or before

23 October 11th, and the petitioner's reply brief due

24 on or before October 18th.

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1 We didn't talk about the mailbox rule,

2 but let's just get all the briefs into the Board

3 office on the dates that I have set out. There

4 will be no mailbox rule. So mailing it doesn't

5 cut it. It has to be in the Board's offices on

6 that day. And I would ask for maybe a courtesy

7 copy, you can work it out amongst yourselves, as

8 to whether a copy delivered via U.S. Mail will be

9 sufficient. But you may want to give the EPA an

10 overnight copy so they can get it and start

11 working on their brief.

12 MR. GURNIK: Would submittal to the

13 Springfield office be acceptable?

14 HEARING OFFICER KNITTLE: No. We don't allow

15 that. It has to be filed in the Chicago office.

16 MR. SCHERSCHLIGT: Do the Board rules

17 specifically -- I mean, what do the rules say with

18 respect to the mailbox rule?

19 HEARING OFFICER KNITTLE: There is a

20 presumption --

21 MR. SCHERSCHLIGT: I don't anticipate that

22 even being a problem.

23 HEARING OFFICER KNITTLE: There is a

24 presumption of filing that says if there is a date

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1 and it is -- there is a four-day presumption of

2 filing that we take into account. They don't take

3 into account any mailbox rule, per se, other than

4 that. It is just standard case law. And

5 generally the hearing officer at the hearing

6 decides under light of the circumstances whether

7 or not it is warranted or not. If you need it, if

8 you guys think you need it, we can work it in.

9 MR. SCHERSCHLIGT: I don't think it will be a

10 problem. If it is necessary, we will file

11 appropriate motions for an extension, but I don't

12 think it will.

13 HEARING OFFICER KNITTLE: Right. I don't

14 have a -- it is a lot cleaner if we don't have to

15 worry about it at all.

16 MR. GURNIK: I would like to make an

17 suggestion since we were not going to be applying

18 the mailbox rule, if we could move the Agency's

19 brief due date one day later to the 12th and

20 Heritage's date to the 19th. Columbus Day is the

21 9th. And if we are going to have a problem

22 getting signatures, it is going to occur on the

23 10th, and we are going to have to have it out of

24 our office on the 10th in order to get it here

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1 overnight on the 11th. If we have that extra day,

2 I think that will be beneficial.

3 MS. DOYLE: That is fine.

4 MR. BIEDERMAN: We have no objection to that.

5 HEARING OFFICER KNITTLE: I think that is

6 fair. Let's do that. October 12th for the Agency

7 brief and October 19th for the petitioner's reply

8 brief. And that will be set out in a hearing

9 officer order summarizing the hearing today. That

10 is all I have.

11 Once again, no members of the

12 public are present. I do want to note that we had

13 two witnesses testify. Based on my legal judgment

14 and experience, I did not find any credibility

15 issues with either witness.

16 I thank you both -- and by both I

17 mean both parties -- very much.

18 MR. BIEDERMAN: Thank you.

19 MR. SCHERSCHLIGT: Thank you.

20 (Discussion had off the

21 record.)

22 HEARING OFFICER KNITTLE: We are back on the

23 record briefly. It turns out there is a clerical

24 mistake. We don't have a copy of Petitioner's

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1 Exhibit 2. The first witness took it with him.

2 Mr. Scherschligt has given us his copy to

3 substitute for Petitioner's No. 2.

4 Mr. Scherschligt, do you have any

5 objection if we use this copy?

6 MR. SCHERSCHLIGT: None whatsoever.

7 HEARING OFFICER KNITTLE: Mr. Scherschligt

8 says no.

9 Is that sufficient for you,

10 Mr. Biederman?

11 MR. BIEDERMAN: Yes, it is.

12 HEARING OFFICER KNITTLE: This will be

13 accepted as Petitioner's Exhibit No. 2. And that

14 is the end of the hearing.

15 (Whereupon the proceedings in

16 the above-entitled cause were

17 concluded.)

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124

1 STATE OF ILLINOIS )

) SS:

2 COUNTY OF LAKE )

3 I, Cheryl L. Sandecki, a Notary Public

4 within and for the County of Lake and State of

5 Illinois, and a Certified Shorthand Reporter of

6 the State of Illinois, do hereby certify that I

7 reported in shorthand the proceedings had at the

8 taking of said hearing and that the foregoing is a

9 true, complete, and correct transcript of my

10 shorthand notes so taken as aforesaid, and

11 contains all the proceedings given at said

12 hearing.

14 ____________________________________

Notary Public, Cook County, Illinois

15 C.S.R. License No. 084-03710

L.A. REPORTING (312) 419-9292