1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2
3
4 ESG WATTS, INC.
5 (SANGAMON VALLEY LANDFILL),
6 Petitioner,
7 vs. No. PCB 98-002
8 SANGAMON COUNTY BOARD,
9 Respondent.
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13 Proceedings held on December 7, 1998 at 9:40 a.m.,
14 at 600 South Second Street, Third Floor Conference
15 Room, Springfield, Illinois, before the Honorable
16 Kathleen Crowley, Hearing Officer.
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21 Reported by: Darlene M. Niemeyer, CSR, RPR
CSR License No.: 084-003677
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24 KEEFE REPORTING COMPANY
11 North 44th Street
25 Belleville, IL 62226
(618) 277-0190 1
KEEFE REPORTING COMPANY
Belleville, Illinois
1 A P P E A R A N C E S
2
3 SANGAMON COUNTY STATE'S ATTORNEY OFFICE
BY: Robert L. Smith
4 Dwayne Gab
Assistant State's Attorneys
5 200 South Ninth Street, Room 402
Springfield, Illinois 62701
6 On behalf of Respondent, the Sangamon
County Board.
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8 SORLING, NORTHRUP, HANNA, CULLEN & COCHRAN, LTD.
BY: Charles J. Northrup, Esq.
9 Suite 800, Illinois Building
607 East Adams
10 Springfield, Illinois 62705
On behalf of Petitioner, ESG Watts, Inc.
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12 WATTS TRUCKING SERVICE, INC.
BY: Larry A. Woodward, Esq.
13 Corporate Counsel
525 - 17th Street
14 Rock Island, Illinois 61201
On behalf of Petitioner, ESG Watts, Inc.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 I N D E X
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3 WITNESS PAGE NUMBER
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5 GEORGE JAMISON
Direct Examination by Mr. Northrup............... 10
6
JOHN JENKINS
7 Direct Examination by Mr. Northrup............... 21
Cross Examination by Mr. Woodward................ 37
8 Offer of Proof by Mr. Woodward................... 47
Cross Examination by Mr. Smith................... 48
9 Redirect Examination by Mr. Northrup............. 51
10 SCOTT YANKEY
Direct Examination by Mr. Northrup............... 54
11
CHARLES BURGERT
12 Direct Examination by Mr. Northrup............... 61
Cross Examination by Mr. Woodward................ 70
13 Cross Examination by Mr. Smith................... 74
Redirect Examination by Mr. Northrup............. 75
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DEVIN MOOSE
15 Direct Examination by Mr. Northrup............... 78
Offer of Proof by Mr. Northrup................... 81
16 Cross Exam on Offer of Proof by Mr. Smith........ 83
Redirect Exam on Offer of Proof by Mr. Northrup.. 84
17 Cross Examination by Mr. Woodward................ 93
Cross Examination by Mr. Smith.................. 101
18 Offer of Proof by Mr. Smith..................... 102
Cross Exam on Offer of Proof by Mr. Northrup.... 104
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JIM STONE
20 Direct Examination by Mr. Northrup.............. 108
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 E X H I B I T S
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3 NUMBER MARKED FOR I.D. ENTERED
4 Petitioner's Exhibit 1 12 113
Petitioner's Exhibit 2 15 113
5 Petitioner's Exhibit 3 36 113
Petitioner's Exhibit 4 95 --
6 Petitioner's Exhibit 5 115 115
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 P R O C E E D I N G S
2 (December 7, 1998; 9:40 a.m.)
3 HEARING OFFICER CROWLEY: Good morning. This is a
4 hearing being conducted by the Illinois Pollution
5 Control Board in the matter of Docket Number PCB 98-2,
6 ESG Watts, Inc., the Sangamon Valley Landfill, versus
7 the Sangamon County Board.
8 My name is Kathleen Crowley, and I am the Board's
9 Hearing Officer in this matter.
10 We are here today on the July 3rd, 1997 petition
11 filed by ESG Watts challenging the decision of the
12 Sangamon County Board to deny local siting approval to
13 overfill at the ESG Watts Sangamon Valley Landfill.
14 If the parties would make their appearances,
15 please.
16 MR. NORTHRUP: Charles Northrup for petitioner,
17 ESG Watts.
18 MR. WOODWARD: Larry Woodward for petitioner, ESG
19 Watts.
20 MR. SMITH: My name is Robert Smith. I am on
21 behalf of the County of Sangamon.
22 MR. GAB: Dwayne Gab, on behalf of the County of
23 Sangamon.
24 HEARING OFFICER CROWLEY: For the record, there
25 are no members of the public here who are not
5
KEEFE REPORTING COMPANY
Belleville, Illinois
1 affiliated with either one of the other party.
2 MR. NORTHRUP: Correct.
3 MR. SMITH: Well, there is an attorney
4 representing some of the witnesses that is here, but
5 otherwise, no.
6 HEARING OFFICER CROWLEY: Okay. Are there any
7 preliminary matters we need to do deal with?
8 MR. NORTHRUP: Yes, I guess there are a couple
9 that we could talk about. The first thing, I am going
10 to use three exhibits today, and they are -- I have
11 not marked them, but there is a professional services
12 agreement between the County of Sangamon and Hanson
13 Engineers.
14 There is a January 31, 1997 statement of
15 qualifications to provide engineering services for
16 Sangamon Valley Landfill which was prepared for
17 Sangamon County by Hanson Engineers. That constitutes
18 a cover letter as well as the statement of
19 qualifications.
20 And then the third document is a letter dated
21 March 17, 1997, from John Jenkins to Mr. Aiello of the
22 County Clerk, the Sangamon County Clerk.
23 Now, these three documents, we believe, should be
24 in the record that is before the Board. I had gone to
25 the county offices last week. That's where these
6
KEEFE REPORTING COMPANY
Belleville, Illinois
1 documents -- that's where I found these documents, one
2 of which, the March 17th letter from Jenkins is
3 actually file stamped, but none of these documents
4 appear in the record before the Board in the Chicago
5 offices.
6 So I guess at this point I would just ask the
7 State's Attorney's office if they will stipulate to
8 the inclusion of these documents in the record.
9 MR. SMITH: Without actually reviewing the
10 documents that you have in front you, Mr. Northrup, I
11 can't agree to stipulate.
12 MR. NORTHRUP: Well, why don't you take a look at
13 them. Again, these documents were all found in the
14 file at the County Clerk's office as a part of the
15 record. In fact, one of them is actually file
16 stamped.
17 HEARING OFFICER CROWLEY: And am I not correct,
18 Mr. Northrup, that these documents all predate the May
19 30th, 1997 siting denial by the County?
20 MR. NORTHRUP: That is correct. That is correct.
21 It may be that I can lay a foundation for all of these
22 documents, too, with the Hanson witnesses.
23 HEARING OFFICER CROWLEY: We will let Mr. Smith
24 examine them.
25 MR. SMITH: We would stipulate to the foundation,
7
KEEFE REPORTING COMPANY
Belleville, Illinois
1 Mr. Northrup.
2 MR. NORTHRUP: The other document, that I did not
3 mention, which I do not have a copy of, that I would
4 also ask that you stipulate to is the County's RFP,
5 their initial request for proposal that they sent out
6 to the various engineering companies, which I don't
7 have a copy of, by the way.
8 MR. SMITH: Yes, that's fine. I don't have any
9 objection.
10 MR. NORTHRUP: I think that takes care of my
11 preliminary.
12 HEARING OFFICER CROWLEY: Mr. Smith, did you have
13 anything?
14 MR. SMITH: No, no preliminary motions.
15 MR. NORTHRUP: Should I go ahead?
16 HEARING OFFICER CROWLEY: Is everyone here who
17 needs to be here?
18 MR. NORTHRUP: We are still waiting for two
19 witnesses, but we can proceed without them.
20 HEARING OFFICER CROWLEY: All right. If we would
21 like to proceed with opening statements then, please.
22 MR. NORTHRUP: I am going to reserve any opening
23 statement and argument for my brief.
24 HEARING OFFICER CROWLEY: Mr. Smith?
25 MR. SMITH: I will do the same.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 HEARING OFFICER CROWLEY: Fine.
2 MR. NORTHRUP: In that case, my first witness, and
3 notwithstanding the Board's order of Thursday, would
4 be Robert Smith.
5 MR. GAB: Judge, we will object. Relevance.
6 HEARING OFFICER CROWLEY: Sustained.
7 MR. NORTHRUP: Okay. In that case, let me ask a
8 quick question of Mr. Trapp.
9 HEARING OFFICER CROWLEY: All right. We are off
10 the record.
11 (Discussion off the record.)
12 HEARING OFFICER CROWLEY: We are back on the
13 record.
14 MR. NORTHRUP: As my next witness I would call
15 George Jamison.
16 MR. TRAPP: Madam Hearing Officer, do you mind if
17 I sit here just so I can hear a little better?
18 HEARING OFFICER CROWLEY: Not at all.
19 MR. TRAPP: Thank you.
20 MR. SMITH: Mr. Trapp, could you introduce
21 yourself since you spoke?
22 MR. TRAPP: Oh, yes. I am sorry. I am William
23 Trapp.
24 (Whereupon the witness was sworn by the Notary
25 Public.)
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 G E O R G E J A M I S O N,
2 having been first duly sworn by the Notary Public,
3 saith as follows:
4 DIRECT EXAMINATION
5 BY MR. NORTHRUP:
6 Q Could you go ahead and state your name for
7 the record.
8 A George Jamison, J-A-M-I-S-O-N.
9 Q Are you currently employed, Mr. Jamison?
10 A Yes.
11 Q Where is that?
12 A Hanson Engineers.
13 Q What do you do at Hanson Engineers?
14 A I am the vice president of the company, and I
15 manage our waste management department.
16 Q Okay. Were you in that position in December
17 of 1996?
18 A Yes.
19 Q With the same general duties?
20 A Yes.
21 Q Are you familiar with a siting application
22 filed by ESG Watts?
23 A I was familiar with it. I am less familiar
24 than I was, but I have seen it.
25 Q Okay. How are you familiar with that?
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 A Pardon me?
2 Q How are you familiar with the application?
3 A We reviewed that as part of our -- as part of
4 the professional services that we provided to the
5 County.
6 Q Okay. So you were retained by the County in
7 this matter?
8 A Yes.
9 Q Okay. And what is it that you were supposed
10 to do for the County in this matter?
11 A I don't specifically recall all of the
12 details, but it was essentially to act as a consultant
13 to them in the review of the siting application.
14 Q Who was your client in this matter?
15 A I don't remember which -- if there was a
16 particular unit of County government other than
17 County. I just don't recall.
18 Q How do you normally determine who your client
19 is?
20 A I don't think I understand the question.
21 Q Well, you indicated that you were not sure
22 what unit of County government your client was in this
23 case?
24 A No, I said I didn't recall.
25 Q Okay. You would agree that Sangamon County
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 is made up of various departments and units?
2 A Certainly.
3 Q Okay. Can you tell me which one of those
4 departments or units you were working for when you
5 were reviewing the application?
6 A Not without reference to the contract. My
7 recollection is that we were retained generally by the
8 County as an entity, but I don't recall what the
9 contract said.
10 Q Okay. So would you look to the contract to
11 define for you who your client was?
12 A That would be one place I would look.
13 MR. NORTHRUP: Okay. Let me show you what I will
14 ask the court reporter to mark as Exhibit Number 1,
15 Petitioner's Exhibit Number 1.
16 (Whereupon said document was duly marked for
17 purposes of identification as Petitioner's Exhibit
18 1 as of this date.)
19 Q (By Mr. Northrup) Can you just review that
20 for me with an eye towards defining who your client
21 was in this matter?
22 A This is a signed professional service
23 agreement dated March 11th of 1997, and it indicates
24 here that the client is County of Sangamon.
25 Q In this -- during your review of the siting
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 application, did you ever meet with any members of the
2 Sangamon County Board?
3 A We met with -- I don't remember the name of
4 the committee offhand, but it was the landfill
5 committee or the siting review committee. I am not
6 sure of the terminology without referencing our files
7 or some other records.
8 And there are -- as I understand the make-up of
9 that committee, there are members of the County Board
10 that comprise the membership of that committee, so to
11 that extent I guess that would be correct, yes.
12 Q How many times would you have met with
13 members of the siting review committee?
14 A Well, if that is the committee, the name of
15 the committee I am not sure of, but if that's the
16 committee that I recall, then it probably would have
17 been maybe twice, but I don't know. I don't recall
18 specifically.
19 Q Okay.
20 A I think you were at all of those meetings.
21 Q Okay. That was my next question.
22 A But I don't recall on either count as to how
23 many meetings specifically, without records, or who
24 was present. My general recollection is that you were
25 there, but I don't know.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 Q Well, do you have any specific recollection
2 of meeting with anyone on the siting review committee
3 where I or Mr. Woodward was not present?
4 A I just don't recall.
5 Q Okay. Did you ever meet with any
6 representatives of the Sangamon County Department of
7 Public Health?
8 A Yes.
9 Q Okay. Who would that have been?
10 A Mr. Stone.
11 Q Okay. Was he the only person from Public
12 Health?
13 A I believe there were probably also members of
14 our firm that may have had some interaction with other
15 people from that department as we collected records
16 and documentation. So there may have been other
17 incidental contact, but our primary point of contact
18 with that department would be Mr. Stone.
19 Q Okay. But you didn't meet with anybody else?
20 A I could have incidentally met other people
21 and just not recall it.
22 Q Okay. Do you recall what the purpose of any
23 of those meetings were?
24 A The primary purpose was to collect the
25 records and information and to move through the scope
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 of services that we were to provide. A lot of it
2 dealt with scheduling and progress of the work.
3 Q Did you meet with -- throughout this process,
4 which I will represent to you began on December 2nd,
5 when the siting application was filed, and May --
6 December 2nd of 1996 and May 31 of 1997, when the
7 County made its final decision, did you meet with any
8 representatives of the State's Attorney's office?
9 A Yes.
10 Q Who would that have been?
11 A Robert Smith.
12 Q Do you recall on how many occasions you met
13 with Mr. Smith?
14 A No.
15 Q Do you recall the substance of any of those
16 meetings?
17 A Again, I think it primarily related to the
18 progress of our review and schedule and generally
19 updates on the progress of the project.
20 MR. NORTHRUP: Let me ask the court reporter to
21 mark Petitioner's Exhibit Number 2.
22 (Whereupon said document was duly marked for
23 purposes of identification as Petitioner's Exhibit
24 2 as of this date.)
25 Q (By Mr. Northrup) Can you identify that for
15
KEEFE REPORTING COMPANY
Belleville, Illinois
1 me, please?
2 A It is a letter dated January 31st, 1997, to
3 the Sangamon County Department of Public Health, and
4 it is a submittal of a statement of qualifications to
5 provide engineering services related to review of an
6 application for site approval for the Sangamon Valley
7 Area 1 overfill.
8 Q You will note it is signed by an individual
9 named Robert Cusick; is that right?
10 A Yes, that's correct.
11 Q Who is Robert Cusick?
12 A He is another officer in our company.
13 Q Okay. Now, there is a document attached to
14 that January 31 letter; is that correct?
15 A Yes.
16 Q Okay. Can you tell me what that is?
17 A Well, it appears to be a statement of
18 qualifications as referenced in the letter, but I have
19 not compared it with what we submitted. So I would
20 assume that is what it is.
21 Q On the table of contents, you will note under
22 roman numeral one, large cap B, team experience. Can
23 you turn to that section, please?
24 A Okay.
25 Q Okay. Now, Hanson had performed work for ESG
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 Watts prior to the siting application; is that
2 correct?
3 A I believe that's correct, yes.
4 Q Okay. Some of that experience is depicted
5 there at the section that is identified as team
6 experience?
7 A Right.
8 Q Okay. Is that an accurate depiction of the
9 work that Hanson had done for ESG Watts?
10 MR. SMITH: I would object to the form of the
11 question. What does Mr. Northrup mean by accurate?
12 It is a misleading question.
13 THE WITNESS: It is really hard to judge that
14 without review of the records. It does reflect that
15 we had performed services for Watts, and whether it is
16 all inclusive or -- I am not sure what you mean by
17 accurate.
18 Q (By Mr. Northrup) Okay. Well, other than the
19 five items that are set out there, do you have any
20 knowledge of any other work that Hanson performed for
21 Watts prior to the siting application?
22 A Not as an unaided recollection. That would
23 require some research.
24 Q Take a look at number three which says, 1993,
25 comma, Phase I and Phase II cultural resources survey
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 for ESG Watts, Inc. Can you tell me what a cultural
2 resource survey is?
3 MR. SMITH: We will object as to the relevancy.
4 MR. NORTHRUP: It is just aiding the Board in some
5 of the past work that Hanson has performed for Watts.
6 MR. SMITH: Why is that relevant?
7 HEARING OFFICER CROWLEY: I am unsure of what
8 relevance --
9 MR. NORTHRUP: Without an explanation of what the
10 cultural resources survey is, the Board is not going
11 to know what it is. I think there is testimony in his
12 deposition, either Mr. Jamison or someone else, that
13 that is, in fact, work that was performed in relation
14 to a siting application.
15 HEARING OFFICER CROWLEY: I will give you some
16 latitude.
17 And I will allow you to answer if you can, Mr.
18 Jamison.
19 THE WITNESS: A cultural resources survey is a
20 survey that is conducted to identify those resources,
21 and those can be archeological or historic resources.
22 I am not sure in this case if we actually performed
23 that for Watts or for one of their engineers, but a
24 survey is basically done to identify those as part of
25 permitting processes.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 Q (By Mr. Northrup) Okay. Well, let's expand
2 on that a little bit. Why does a company do a
3 cultural resources survey?
4 A Generally it is a requirement of a permitting
5 process.
6 Q Okay. And a permitting process would include
7 a siting process?
8 A It could, but it can also be other types of
9 permits.
10 Q Do you know specifically in this case whether
11 the work that Hanson did was in relation to a permit
12 or a siting matter?
13 A I have no idea.
14 (Mr. Northrup and Mr. Woodward confer briefly.)
15 Q (By Mr. Northrup) Mr. Jamison, do you ever
16 recall advising Watts that you had submitted a
17 proposal in the siting application to work for the
18 County?
19 A I don't know if I -- could you repeat that?
20 Q Do you recall ever advising Watts that you
21 had submitted this statement of qualifications to the
22 County?
23 MR. SMITH: Objection as to relevancy.
24 MR. NORTHRUP: It goes to the conflict of
25 interest, and whether or not there might be some
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 argument down the road that Watts waived the conflict
2 if, in fact, Hanson had ever requested Watts'
3 permission to submit the statement of qualifications.
4 HEARING OFFICER CROWLEY: I will allow you to
5 answer. It may be arguably relevant.
6 THE WITNESS: I don't recall specifically whether
7 we informed Watts. But one of the reasons that we
8 tried to list under team experience the past services
9 that had been provided to any client related to the
10 landfill, for example, in team experience here, was to
11 be sure that was known and open. And this is a
12 submittal to a public agency, so we did want that to
13 be known, that we had done work at that site in the
14 past for more than one client.
15 MR. NORTHRUP: Those are all of the questions I
16 have.
17 HEARING OFFICER CROWLEY: Mr. Smith?
18 MR. SMITH: I don't have anything.
19 HEARING OFFICER CROWLEY: All right. Thank you.
20 (The witness left the stand.)
21 MR. NORTHRUP: As my next witness I would call
22 John Jenkins.
23 HEARING OFFICER CROWLEY: Please swear the
24 witness.
25 (Whereupon the witness was sworn by the Notary
20
KEEFE REPORTING COMPANY
Belleville, Illinois
1 Public.)
2 J O H N J E N K I N S,
3 having been first duly sworn by the Notary Public,
4 saith as follows:
5 DIRECT EXAMINATION
6 BY MR. NORTHRUP:
7 Q Can you state your name for the record,
8 please.
9 A John Jenkins.
10 Q What do you do for a living, Mr. Jenkins?
11 A I am employed at Hanson Engineers.
12 Q What do you do at Hanson Engineers?
13 A I am a geo technical engineer, and I also
14 manage the material testing group.
15 Q Okay. Are you familiar with a siting
16 application filed by ESG Watts?
17 A I am familiar with an application, yes. It
18 has been awhile since I have reviewed it.
19 Q Okay. How are you familiar with the
20 application?
21 A We reviewed the application as part of our --
22 part of the services we provided to the County of
23 Sangamon.
24 Q What role did you play in those review
25 services?
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 A I was the project manager for the company.
2 Q And what does a project manager do?
3 A Well, my view of project manager is to work
4 with the various people involved on the project and
5 coordinate their work, make sure that the schedules
6 are met, and the deliverables are provided.
7 Q Who was your client in this case?
8 A My understanding is the County of Sangamon.
9 Q Could you be any more specific than that?
10 A I don't think I can. That's my
11 understanding, and that's what the contract -- our
12 agreement was the County of Sangamon.
13 Q Okay. Did you ever meet with any members of
14 the County Board? This is all related to the
15 application, of course.
16 A Yes. I attended a meeting of the -- of a
17 committee of the Board, the committee that was
18 reviewing this -- this application. It was a -- you
19 were at the meeting.
20 Q Okay. Do you recall any other meetings with
21 members of the County Board where I was not present?
22 A No, I don't recall any.
23 Q Did you ever meet with any representatives of
24 the Sangamon County Department of Public Health?
25 A I met with Jim Stone.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 Q On how many occasions did you meet with Mr.
2 Stone?
3 A I don't recall specifically. Probably two, I
4 think I recall. I don't know if there may have been
5 more than that.
6 Q Do you recall when during the process you had
7 these meetings with Mr. Stone? Were they before the
8 actual hearings or were they during the hearings?
9 A There was a meeting before the hearings, and
10 that was to discuss procedural issues, physical
11 issues, like where the hearing would take place or
12 hearings would take place, what the form of the
13 hearings would be.
14 Q How about the 2nd meeting?
15 A I recall -- if I recall correctly, it was
16 after the hearings, and it was to discuss what we
17 would -- Hanson Engineers was to provide, or not what
18 we were to provide, but what the schedule was and
19 the -- any reports or reports that we would provide.
20 Q The second meeting, who was in attendance?
21 A Jim Stone and George Jamison.
22 Q Were there any representatives of the
23 Sangamon County State's Attorney office present?
24 A I don't recall that -- I don't think so.
25 Q How about the first meeting where you were
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 discussing procedural issues? Who else was present at
2 that meeting?
3 A George Jamison, I believe. I would be fairly
4 certain he was there. Possibly Robert Smith.
5 Q Anybody else?
6 A I can't recall for sure.
7 Q Would you, from time to time during the
8 siting process, meet with representatives of the
9 State's Attorney's office?
10 A Well, prior to the hearings and during the
11 hearings we met with Robert Smith.
12 Q On how many occasions do you recall meeting
13 with Mr. Smith prior to the hearings?
14 A I can't recall the number.
15 Q Okay. More or less than five?
16 A Before the hearings? Probably more than five
17 but something maybe on that order.
18 Q During the hearings, do you recall how many
19 times you met with Mr. Smith?
20 A No, I don't.
21 Q Would you meet -- during the hearings, would
22 you meet with Mr. Smith outside of meeting with him at
23 actual hearing time itself?
24 A Yes.
25 Q Okay. Do you recall how many times?
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 A No.
2 Q Okay. Would you routinely meet with him
3 before every hearing?
4 A Session?
5 Q Session.
6 A I don't know if it would be routinely.
7 Before some of them certainly. Before all of them, I
8 don't imagine so.
9 Q What types of issues would you discuss with
10 Mr. Smith at these meetings, either before or during
11 the hearing process?
12 MR. SMITH: I am going to object as to the
13 relevancy.
14 MR. NORTHRUP: It goes to the nature of the
15 relationship between Hanson and the State's Attorney's
16 office.
17 MR. SMITH: Why is that relevant to --
18 MR. NORTHRUP: And whether they were exercising
19 their -- ultimately, whether they were exercising
20 their independent judgment.
21 HEARING OFFICER CROWLEY: I will sustain the
22 relevancy objection.
23 THE WITNESS: Can you repeat the question?
24 HEARING OFFICER CROWLEY: You don't have to answer
25 it.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 THE WITNESS: Oh, okay.
2 Q (By Mr. Northrup) Did anyone from the State's
3 Attorney's office -- strike that. You testified at
4 the hearings, correct?
5 A Yes.
6 Q Other employees from Hanson testified at the
7 hearings, correct?
8 A That's correct.
9 Q How did you prepare for your testimony?
10 A For my testimony? I don't really -- how
11 would I prepare? We reviewed the application from the
12 technical point of view. I am not sure I really know
13 how to answer the question other than we reviewed the
14 application, and we identified issues or technical
15 issues that we had questions on or that we found --
16 that we had questions on or found that were not
17 present in the application and, therefore, had
18 questions as to what -- where this information might
19 be, if it did exist.
20 Q When you say "we," who do you mean?
21 A Hanson Engineers, the project team.
22 Q Did anyone from the State's Attorney's office
23 assist you in your preparation for the hearing?
24 A Assist us in -- assist me in the
25 preparation? I worked with -- Robert Smith and myself
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 discussed these technical issues. If I recall, he
2 asked questions during the hearing, and they were
3 issues that we had discussed together.
4 Q Did you discuss your specific testimony with
5 Mr. Smith prior to the hearings?
6 A Discussed in at least a general way. I guess
7 the answer is we discussed it in a general way.
8 Q You attended all of the hearings, correct?
9 A Yes. Yes, I think all of the hearings. If
10 not all, most of them.
11 Q Okay. And during those hearings, Mr. Smith
12 examined and cross-examined witnesses, correct?
13 A Correct.
14 Q During the hearing process, did you assist
15 Mr. Smith in preparing examination or
16 cross-examination questions for the witnesses who were
17 on the stand?
18 A I think we would say we assisted in the
19 cross-examination questions for sure. During the
20 testimony we would have questions and we might write
21 them down.
22 Q What did you do with them once you wrote them
23 down?
24 A In some cases, we would have given them to
25 Mr. Smith.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 Q Okay. Then would he ask those questions of
2 the witnesses?
3 A In some cases he would ask those questions or
4 questions along the lines of what we were writing
5 down.
6 Q Just in general, what might prompt you to
7 write down a question and then pass it to Mr. Smith?
8 A It would have been a response to a -- to
9 testimony on technical issues.
10 Q Well, on an issue that you felt hadn't been
11 fully explained?
12 A Possibly.
13 Q On an issue that you felt the application
14 might have been lacking?
15 A Possibly, yes.
16 Q Prior to the hearings, had you made any
17 determination as to whether the application, as
18 submitted by Watts, satisfied the nine criteria set
19 out in the Environmental Protection Act?
20 MR. SMITH: I am going to object. Mr. Jenkins'
21 opinion as to whether the nine criteria were met is
22 not relevant.
23 HEARING OFFICER CROWLEY: I am terribly sorry.
24 But I just didn't catch that.
25 MR. SMITH: I am sorry. Mr. Jenkins' personal
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 opinion as to whether the nine criteria had been met
2 or had not been met is not at issue and is irrelevant.
3 MR. NORTHRUP: Well, he is the project manager.
4 Of course, it is relevant. It is going to go to
5 whether or not they exercised any independent judgment
6 in reviewing the application.
7 HEARING OFFICER CROWLEY: I will overrule the
8 objection. You can answer that question if you can.
9 THE WITNESS: Could you read it back?
10 MR. NORTHRUP: Could you read it back.
11 (Whereupon the requested portion of the record was
12 read back by the Reporter.)
13 THE WITNESS: No.
14 Q (By Mr. Northrup) Prior to the hearings, had
15 you made any determination as to whether the
16 application contained sufficient information for you
17 to make a determination under the Act with respect to
18 the nine criteria?
19 A Speaking personally for myself, I would say
20 that the answer is no. I had not made that
21 determination.
22 Q At any time during your review of the siting
23 application, were you ever asked, you meaning you
24 personally or Hanson Engineers, ever asked to provide
25 engineering alternatives to the removal of the waste
29
KEEFE REPORTING COMPANY
Belleville, Illinois
1 from the landfill?
2 A Were we ever asked to provide them?
3 Q Correct.
4 A No.
5 Q Did you ever offer any?
6 A Did we ever offer any to --
7 Q Right, to your client?
8 A There was a discussion or discussions with
9 Robert Smith, and the questions during the hearings
10 regarding alternative -- engineering alternatives.
11 That would be the extent of it.
12 Q Okay. I am a little confused. You said that
13 you had discussions with Robert Smith during the
14 hearings?
15 A Discussion -- we had discussions with Robert
16 Smith on technical issues. There was discussions in a
17 general way, not specifically for this landfill, of
18 engineering alternatives. During the hearings
19 questions were asked of Watts, or the engineers,
20 whether these had been considered.
21 Q Okay. I am still a little confused. So
22 prior to the hearings there were discussions with
23 Robert Smith and then during the hearings?
24 A During the hearings as a course of the
25 hearings, during the testimony.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 Q Okay. Do you recall if you ever communicated
2 to Robert Smith that he should ask questions of the
3 witnesses on engineering alternatives?
4 A Well, I seem to recall that those questions
5 were asked. Presumably we possibly -- we had
6 discussed this with Robert Smith prior to the
7 hearings.
8 Q Did you or anyone at Hanson present any
9 testimony regarding engineering alternatives?
10 A Not that I recall.
11 Q At the time of the hearing you had worked at
12 Hanson for how long?
13 A What year was the hearing?
14 Q The hearings were in 1997, in the spring of
15 1997.
16 A So I was going on seven years.
17 Q Okay. And had you worked on any matters
18 involving ESG Watts prior to that point?
19 A Yes.
20 Q Okay. Did you ever advise anyone at ESG
21 Watts that Hanson had prepared a statement of
22 qualifications in this matter?
23 A I am sorry. I -- can you repeat the
24 question?
25 Q Yes. Did you at any time advise anybody at
31
KEEFE REPORTING COMPANY
Belleville, Illinois
1 ESG Watts that Hanson had, in fact, prepared a
2 statement of qualifications, and were going to bid on
3 this job?
4 A We didn't bid on the job. We submitted a
5 statement of qualifications.
6 Q Submitted a statement of qualifications?
7 A But, no.
8 Q Did you ever meet with anyone at the Illinois
9 Environmental Protection Agency about the siting
10 application?
11 A At what point in time? At any time?
12 Q Any time from December 2nd, 1996, through May
13 31 of 1997?
14 A We had a meeting with someone from the
15 Illinois Environmental Protection Agency at some point
16 prior to the hearings, and the purpose of the meeting
17 was to discuss -- well, it wasn't to discuss. It was
18 to, if I recall correctly, to identify any additional
19 technical information that was available regarding the
20 landfill.
21 Q Now, prior to this meeting you had submitted
22 a FOIA request to the Agency?
23 A Yes.
24 Q Had you received a response to that request
25 by the time of this meeting?
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 A I believe so.
2 Q Were you in attendance at this meeting?
3 A Yes.
4 Q Do you recall was the meeting with an
5 individual named Chris Leadman?
6 A I believe that's correct.
7 Q Do you know what his position was at the
8 Agency?
9 A No, not specifically.
10 Q Do you know why you were meeting with him as
11 opposed to anybody else from the Agency?
12 A I presume at some point we were informed
13 maybe by -- maybe through documents in the -- that we
14 obtained in the FOIA -- through the FOIA request or in
15 the application, somehow we were informed that he was
16 knowledgeable I guess about the landfill, and that's
17 why we met with him to find out if there was any
18 additional information. I don't -- but I don't
19 specifically recall why, you know.
20 Q Did you advise any representative of ESG
21 Watts that you were going to have this meeting with
22 the IEPA?
23 A No.
24 Q Do you recall that the siting review
25 committee requested that Hanson prepare a final report
33
KEEFE REPORTING COMPANY
Belleville, Illinois
1 for them to review in this matter?
2 A I don't specifically recall.
3 Q Do you recall drafting some kind of final
4 report for the committee?
5 A I recall that we drafted a draft report for
6 the committee.
7 Q And this was at their request?
8 A At the committee's request?
9 Q At the committee's request?
10 A It was -- the requirements for a report -- if
11 I recall, the requirements for a report were included
12 in the scope of services.
13 Q You did, in fact, prepare that report?
14 A There was a requirement for the report in the
15 scope of services. We were -- and we prepared a
16 report, a draft report. The scope of services may
17 have been modified to not include a final report. I
18 am really not -- I can't recall exactly.
19 Q What did you do with the draft report? Did
20 you submit it to the committee?
21 A I don't recall exactly who we submitted it
22 directly to. I would assume the committee, but I am
23 not sure if it would have been a committee or the
24 Department of Public Health.
25 Q Okay.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 A Or the county clerk. The record would show
2 it. I just don't recall.
3 Q Do you recall showing that draft report to
4 Mr. Smith prior to its formal submission to the clerk
5 or the committee or Public Health?
6 A I don't specifically recall. I don't think
7 that we showed them the final -- I am fairly certain
8 that we didn't show them the final draft report until
9 it was submitted.
10 Q Did you show them any drafts along the way
11 prior to getting to the final draft?
12 A I don't recall. It may be possible that he
13 saw a predraft draft.
14 Q During the actual hearing process, did you
15 have any communications with any members of the siting
16 review committee?
17 A Communications, no. What is communications?
18 Q Did you talk to anybody?
19 A We saw them in the hallway.
20 Q Okay.
21 A I may have said hi.
22 Q Anything of substance related to the
23 application?
24 A Nothing of substance. The only -- the only
25 thing -- nothing of substance. During the hearings
35
KEEFE REPORTING COMPANY
Belleville, Illinois
1 one of the Board Members leaned over the rail and made
2 some -- made a comment or something about drilling or
3 something like that. And that was it.
4 Q I mean, was the comment directed towards you?
5 A No.
6 Q Okay. Did you respond in any way or did
7 anybody from your side of the table respond?
8 A He asked some question regarding drilling,
9 and my response was I don't know or something like
10 that. It was not -- I didn't provide any --
11 Q Do you recall which committee member it was?
12 A It is -- the name Bob Nagelini (spelled
13 phonetically). I think I remember that.
14 MR. NORTHRUP: May I ask the court reporter to go
15 ahead and mark this as Petitioner's Exhibit number 3.
16 (Whereupon said document was duly marked for
17 purposes of identification as Petitioner's Exhibit
18 3 as of this date.)
19 Q (By Mr. Northrup) Can you just go ahead and
20 identify that for me?
21 A It is a letter from Hanson Engineers to the
22 Office of the County Clerk, Sangamon County, and it is
23 a filing in memorandum and support of the entry of
24 appearance.
25 Q Is that your signature on the last page?
36
KEEFE REPORTING COMPANY
Belleville, Illinois
1 A Yes, it is.
2 CROSS EXAMINATION
3 BY MR. WOODWARD:
4 Q As to Petitioner's Exhibit Number 3, and the
5 first sentence -- excuse me -- the second sentence --
6 the first sentence, you indicate that this memorandum
7 is filed in support of an entry of appearance filed by
8 the County of Sangamon; is that correct?
9 A That's what it says. That's the first
10 sentence, though, right.
11 Q Is it the first sentence?
12 A Okay.
13 Q Well, there is no comma after Inc., so I was
14 not sure. At the time you wrote this, then, did you
15 understand that the County of Sangamon was a party to
16 this proceedings?
17 A I don't recall. Just from what it says it
18 appears that we filed a support of -- the entry of
19 appearance filed by the County of Sangamon, so it
20 appears that it was our impression that there was an
21 entry of appearance filed by the County of Sangamon.
22 Q And is it your understanding that entry of
23 appearance that that makes them a party?
24 A No, I am not certain exactly what that means.
25 Q Okay.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 A My understanding would be more that they have
2 filed information just as a -- anybody from the public
3 could file.
4 Q Now, the prior questions as to the County of
5 Sangamon, you indicated that it was your understanding
6 it was County of Sangamon generally, is that correct,
7 that was your client?
8 A Our client, yes.
9 Q Here the County of Sangamon is identified as
10 your client, right, somewhere in this document?
11 A HEI has been retained by Sangamon County,
12 correct.
13 Q Now, retained by Sangamon County, does that
14 include the County Board?
15 A That's a question I don't know the -- I mean,
16 I don't know the answer to. It seems to me that is a
17 legal question.
18 Q Didn't you indicate that the professional
19 services agreement, which I think is identified as --
20 has been marked as Petitioner's Exhibit Number 1, that
21 part of that document was that you were to prepare a
22 final report?
23 A That's correct.
24 Q And who was that final report to go to?
25 A It would be the client, which would be the
38
KEEFE REPORTING COMPANY
Belleville, Illinois
1 County of Sangamon.
2 Q Well, I want to direct your attention to page
3 two of Petitioner's Exhibit Number 1.
4 A Okay.
5 Q What is number -- does number eleven, in
6 fact, say prepare finding of fact report for approval
7 of committee?
8 A Yes, it does.
9 Q Okay. Is the committee a committee of the
10 County Board?
11 A I don't -- I would assume so. I don't know
12 that -- if it was defined in here or not.
13 Q Well, they were your client. Did you
14 understand them to be a committee of the County Board?
15 A No, I understood them to be the County. I
16 don't know that I understood it to be specifically a
17 committee.
18 Q When you attended the hearings, were there
19 any persons sitting as part of the committee who were
20 not members of the County Board?
21 A I don't believe so.
22 Q All right. Did you understand that the
23 committee was then to give a recommendation to the
24 County Board?
25 A Yes.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 Q Okay. So you -- also on page two of
2 petitioner's Exhibit Number 1, number ten talks about
3 the -- excuse me -- number nine talks about preparing
4 written evidence and testimony at the public hearing;
5 is that correct?
6 A That's correct.
7 Q As part of the scope of services, and prepare
8 a summary report after public hearing if requested by
9 the client. Is that also part of the scope of
10 services?
11 A Yes.
12 Q So weren't you, in fact, doing two things in
13 this process; assisting a party to the proceedings,
14 and cross-examining and serving as an adverse party,
15 and then serving as a consultant to the decision
16 maker?
17 MR. SMITH: Objection. Argumentative.
18 HEARING OFFICER CROWLEY: I will sustain the
19 objection to the form of the question. This is your
20 witness.
21 Q (By Mr. Woodward) Did you serve two roles in
22 this process?
23 A No, I don't believe so. Our role was
24 technical review of the application, and that was --
25 in a nutshell that was our role, and that's what we
40
KEEFE REPORTING COMPANY
Belleville, Illinois
1 provided.
2 Q In performing what you considered your role,
3 did you provide assistance in cross-examining
4 witnesses?
5 A Yes.
6 Q And did you prepare a draft or final report
7 for the siting review committee, which summarized
8 evidence and gave recommendations?
9 A We prepared a draft report which summarized
10 the evidence. The draft report did not provide
11 recommendations. I don't believe that -- I don't
12 recall that we provided recommendations at all. We
13 just summarized the report or the application.
14 (Mr. Northrup and Mr. Woodward confer briefly.)
15 MR. WOODWARD: May I approach the witness?
16 HEARING OFFICER CROWLEY: Yes.
17 Q (By Mr. Woodward) Are you telling me that you
18 don't recall whether your draft report had any
19 recommendations in it?
20 A Yes.
21 Q Okay. Would examining the draft report
22 refresh your memory?
23 A Conceivably, yes.
24 MR. SMITH: I am going to object to handing the
25 witness something outside the public record. On pages
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 13231 to 13283 -- I am sorry -- 13176 to 13230 is the
2 report of the Regional Pollution Control Facility and
3 Hanson's review of the application, so what he is
4 attempting to hand him, there is an official copy in
5 that box over there.
6 MR. WOODWARD: Okay. I will pull it out of that
7 box if you want me to.
8 HEARING OFFICER CROWLEY: Okay. Off the record.
9 (Discussion off the record.)
10 HEARING OFFICER CROWLEY: Back on the record.
11 Q (By Mr. Woodward) I am handing you what is
12 labeled Volume -- roman numeral -- I think that's 54
13 of the official record. Directing your attention to
14 page C13236, would you read that particular paragraph?
15 A Which one?
16 Q The one I am directing you to.
17 A Overall, the application appears to lack the
18 details necessary to demonstrate compliance to the
19 statutory criteria and, thus, few of the criteria
20 required for approval of the application have been
21 met.
22 Q Is that a recommendation?
23 A I would consider that to be more a summary of
24 our opinion.
25 Q So it is a statement of opinion that you are
42
KEEFE REPORTING COMPANY
Belleville, Illinois
1 giving the Sangamon Review Board in your draft final
2 report?
3 A A statement of our position or our view of
4 it.
5 Q Now, there are some charts starting on page
6 C13237 and going to C13251. And in those charts do
7 you not set forth what the criteria number is, the
8 section of the code that gives that criteria, the
9 criteria description, and the applicable regulatory
10 section, and then you state an opinion as to whether
11 there is sufficient documentation, insufficient
12 documentation, or it does not meet compliance; is that
13 correct?
14 A That's correct.
15 Q And on page C13239 are there not two where
16 you have stated that it does not meet compliance, two
17 separate lines?
18 A That's correct, that's what it says.
19 Q Is that a recommendation since this is a
20 draft report?
21 A No, I would not call it a recommendation.
22 Again, it is our opinion as to whether this -- the
23 application met the compliance or information provided
24 in that application met compliance with these
25 applicable regulatory sections.
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 Q Okay. Then on page C1324, again, there is
2 another one line in the chart on that page that
3 says -- where you have given your opinion, Hanson
4 Engineers opinion that there is something in that
5 criteria that was not -- that does not meet the
6 compliance, in the application that does not meet the
7 criteria stated on that page, correct?
8 A The application does not meet the criteria
9 stated on this page, that's correct, the applicable
10 regulatory section.
11 Q On that page there is several where you have
12 indicated, or that Hanson Engineers has indicated,
13 that there is insufficient documentation to determine
14 whether they are in compliance or not; is that
15 correct?
16 A With those regulatory criteria or sections,
17 yes.
18 Q And in every case in this chart you are
19 saying if -- that you have not given a recommendation
20 but just the opinion of Hanson Engineers; is that
21 correct?
22 A Yes.
23 Q Did you understand the County Board -- excuse
24 me -- the siting review board having a belief that you
25 served as independent consulting engineers to them?
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 MR. SMITH: Objection. Calls for speculation,
2 what the County Board review members may have thought.
3 MR. WOODWARD: I don't believe there is
4 speculation. Personally, I was at one of the
5 meetings, and that statement was made where he said he
6 was present.
7 MR. SMITH: Mr. Woodward is going to now recuse
8 himself from the case and be a witness in the case, if
9 he wants to testify.
10 MR. WOODWARD: I didn't say I wanted to testify.
11 He is saying speculation. I am saying he can say
12 whether a County Board Member who sat on the --
13 HEARING OFFICER CROWLEY: He can -- the witness
14 can testify as to his understanding, if any.
15 You can respond to that question.
16 THE WITNESS: You will have to repeat it.
17 MR. WOODWARD: Okay.
18 HEARING OFFICER CROWLEY: Read back the question,
19 please.
20 (Whereupon the requested portion of the record was
21 read back by the Reporter.)
22 THE WITNESS: I don't know what their belief was.
23 Q (By Mr. Woodward) Was it ever expressed at a
24 meeting in which you attended by any member of the
25 committee in open session?
45
KEEFE REPORTING COMPANY
Belleville, Illinois
1 A I don't specifically recall them saying that.
2 Q Thank you.
3 (Mr. Northrup and Mr. Woodward confer briefly.)
4 Q (By Mr. Woodward) I believe you testified
5 prior to a question directed to you by Mr. Northrup
6 that you did not give ESG Watts or anybody at ESG
7 Watts notice that you were submitting a proposal in
8 response to the request for proposals issued by the
9 County of Sangamon; is that correct?
10 MR. SMITH: I am going to object. It has been
11 asked and answered.
12 HEARING OFFICER CROWLEY: It has been answered.
13 MR. SMITH: They have two Counsel. Let's keep it
14 so that we are not asking the same questions over all
15 of the time.
16 Q (By Mr. Woodward) One step further. Did you
17 ever seek the permission from anyone, from anybody at
18 ESG Watts to do so?
19 MR. SMITH: Objection as to relevancy.
20 MR. WOODWARD: Again, it goes to the issue of
21 whether there is a conflict of interest, and as stated
22 by the rules of professional ethics governing
23 engineers, whether they could serve in the role of
24 consultants to the County of Sangamon when they had
25 done prior work for ESG Watts, and whether there was
46
KEEFE REPORTING COMPANY
Belleville, Illinois
1 bias on the part of Hanson Engineers.
2 And because this report was -- appears to be
3 heavily relied upon by the siting review board, it
4 goes to the issue of whether that bias affected their
5 judgment. I mean, since this is prepared summary of
6 the evidence and gave opinions, I believe it is very
7 relevant in that regard.
8 HEARING OFFICER CROWLEY: I believe this is
9 outside the scope of what the Board will consider
10 here. I will allow you to answer the question as an
11 offer -- ask the question as an offer of proof if you
12 would care to.
13 MR. WOODWARD: Yes, I would.
14 HEARING OFFICER CROWLEY: So this is an offer of
15 proof. You may answer if you can.
16 THE WITNESS: To my knowledge -- are you asking me
17 personally?
18 Q (By Mr. Woodward) I am asking if you did.
19 A No, no.
20 HEARING OFFICER CROWLEY: Mr. Smith, as part of
21 the offer of proof, do you have any question for Mr.
22 Jenkins on that point?
23 MR. SMITH: No questions.
24 HEARING OFFICER CROWLEY: All right. That
25 concludes the offer of proof?
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 MR. WOODWARD: Yes, and I am finished with
2 questioning.
3 HEARING OFFICER CROWLEY: All right. Fine. Mr.
4 Smith, do you have cross for Mr. Jenkins?
5 MR. SMITH: Just a few.
6 HEARING OFFICER CROWLEY: Okay.
7 CROSS EXAMINATION
8 BY MR. SMITH:
9 Q Mr. Jenkins, you indicated that you testified
10 during the course of this landfill siting hearing; is
11 that correct?
12 A That's correct.
13 Q And you were subject to cross-examination?
14 A That's correct.
15 Q Mr. Northrup had an opportunity to ask you
16 questions?
17 A Yes, I believe he did.
18 Q Okay. Did he ask you substantial questions
19 about the relationship between ESG Watts and Hanson
20 Engineers prior to Hanson working for the County, if
21 you recall?
22 A Yes, I recall that he did ask questions
23 involving that. I don't specifically remember what
24 questions.
25 Q Mr. Northrup also just referred to
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 engineering alternatives, and whether they were
2 brought up during the course of the proceedings. Was
3 landfill mining mentioned as a possible alternative to
4 the removal of waste?
5 A During the hearings was that --
6 Q Yes.
7 A I believe that -- I believe that that was
8 asked of the -- of the Watts engineer.
9 Q Okay. While you were subject to
10 cross-examination, Mr. Northrup could have asked you
11 about landfill mining, couldn't he?
12 A I assume so.
13 Q Mr. Northrup referred to a contact that you
14 had with Robert Nagelini, a County Board Member?
15 A Uh-huh.
16 Q Do you recall the substance of the question
17 Mr. Nagelini asked when he leaned over the railing, as
18 you referred to it?
19 A It had to do with -- it must have been a
20 discussion or testimony of drilling at or around the
21 land site, the landfill site. And his question was
22 involving something about could they drill -- could
23 they have -- did they drill vertically or
24 horizontally, or could they have drilled horizontally
25 or something to that effect, and that was the
49
KEEFE REPORTING COMPANY
Belleville, Illinois
1 question.
2 Q Okay. Do you recall how you responded to
3 that question?
4 A I believe I said I don't know.
5 Q Okay. But that's a good question to ask?
6 A Yes.
7 Q Okay.
8 A Something like that, but I didn't want to --
9 I was conscious of trying not to provide any answer to
10 him, because I was aware that I was not to be talking
11 to any Board Members.
12 Q Okay. How were you made aware that you were
13 not supposed to talk to any Board Members?
14 A It was part of the discussions that we had
15 had in-house. We are aware of previous landfill
16 siting cases or whatever where contact with the
17 members who are making the decision has been an issue.
18 Q And you had in-house discussion about these
19 Pollution Control Board cases or appellate court cases
20 that talk about fundamental fairness?
21 A Right.
22 Q And not having ex parte contacts?
23 A Exactly.
24 MR. SMITH: I don't have anything further.
25 HEARING OFFICER CROWLEY: Anything on redirect?
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 MR. NORTHRUP: Yes.
2 REDIRECT EXAMINATION
3 BY MR. NORTHRUP:
4 Q I kind of missed that last question. You
5 indicated that there were in-house discussions about
6 the issues of fundamental fairness and that type of
7 thing?
8 A Yes. I recall a -- I don't know if it is a
9 publication. It was a summary of some Pollution
10 Control Board or appellate cases where ex parte
11 contact was an issue, and I reviewed that document,
12 and I know I have discussed it with others.
13 Q Okay. Did you discuss it with Mr. Smith?
14 A It is very likely possible. I don't
15 specifically recall, but I would imagine so.
16 Q Do you think it was Mr. Smith who provided
17 you with this publication?
18 A No, I don't believe it is.
19 Q Other than leaving the waste in place,
20 removing it, or landfill mining, what other
21 engineering alternatives might have been available to
22 ESG Watts?
23 MR. SMITH: I am going to object. The testimony
24 concerning the merits of the criteria are supposed to
25 be based solely upon the record. Mr. Northrup is now
51
KEEFE REPORTING COMPANY
Belleville, Illinois
1 attempting to try to put in technical evidence
2 involving criteria, which is not appropriate at this
3 juncture.
4 MR. NORTHRUP: Mr. Smith specifically raised the
5 single issue of landfill mining. Again, whatever
6 other alternatives are out there, and which Hanson may
7 have discussed prior to the hearing, go to whether or
8 not Hanson exercised its independent judgment in
9 presenting those alternatives or not presenting those
10 alternatives to the Board.
11 MR. SMITH: In response, during the course of Mr.
12 Jamison's testimony or any of the other three
13 individuals from Hanson Engineers that testified
14 during the course the proceedings, Mr. Northrup could
15 have said, okay, you don't like our application. What
16 about these things? Or do you have any other
17 alternatives? At no time did he choose to ask about
18 these environmental alternatives that he now wants to
19 put in front of the Board. I don't believe it is
20 relevant, and ask the Board to sustain the objection.
21 MR. NORTHRUP: Again, it is not an issue.
22 HEARING OFFICER CROWLEY: I am going to sustain
23 the objection and I also believe it is outside the
24 scope of cross-examination.
25 MR. NORTHRUP: I don't have any further
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KEEFE REPORTING COMPANY
Belleville, Illinois
1 questions.
2 MR. SMITH: Nothing further.
3 HEARING OFFICER CROWLEY: Thank you. I am sorry.
4 I do have one question. As the Hearing Officer in
5 this proceeding, I don't make decisions or recommend
6 decisions to the Pollution Control Board. My job is
7 to provide a record that is as easy for them to work
8 with and as complete as possible.
9 If you could just -- we have been speaking about
10 landfill mining. If you could just give us, in a
11 short form, what your understanding of landfill mining
12 is.
13 THE WITNESS: My understanding is that it is the
14 selective removal of a portion of the parts of the
15 waste that could be recycled or recovered, so that
16 would remove -- that would, in effect, remove a
17 portion of the waste.
18 HEARING OFFICER CROWLEY: Thank you. I just
19 wanted some definition of the term that was close to
20 the testimony.
21 THE WITNESS: Okay.
22 HEARING OFFICER CROWLEY: Thank you.
23 (The witness left the stand.)
24 HEARING OFFICER CROWLEY: I think it would be
25 appropriate to take five minutes.
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1 (Whereupon a short recess was taken.)
2 HEARING OFFICER CROWLEY: All right. Back on the
3 record.
4 Mr. Northrup, your next witness.
5 MR. NORTHRUP: Scott Yankey.
6 (Whereupon the witness was sworn by the Notary
7 Public.)
8 A L A N S C O T T Y A N K E Y,
9 having been first duly sworn by the Notary Public,
10 saith as follows:
11 DIRECT EXAMINATION
12 BY MR. NORTHRUP:
13 Q Can you go ahead and state your name for the
14 record.
15 A It is Alan, A-L-A-N, Scott Yankey.
16 Q Where do you work?
17 A Hanson Engineers.
18 Q And you were involved in the review of the
19 Watts siting application?
20 A Yes.
21 Q Kind of in general tell me what role you
22 played in the review of the application?
23 A I reviewed the application -- portions of the
24 application that included descriptions of the site
25 geology and hydrogeologic conditions.
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1 Q You are a hydrogeologist?
2 A Yes. As --
3 Q Did you -- go ahead.
4 A I am sorry. As well as information obtained
5 from the IEPA as part of the FOIA request. I reviewed
6 that data as well.
7 Q Okay. Did you testify at the hearing?
8 A Yes.
9 Q During the -- or prior to the hearings, did
10 you meet with anyone from the IEPA?
11 A Yes, I believe there was one meeting at the
12 IEPA.
13 Q Do you recall who you met with?
14 A From earlier Chris Leadman was mentioned.
15 That jogs a memory.
16 Q Okay. Did you advise anyone at ESG Watts of
17 this meeting at the IEPA?
18 A No, I did not.
19 Q Was anyone from ESG Watts at that meeting?
20 A I don't believe so.
21 Q Who was at the meeting beside yourself and
22 Mr. Leadman?
23 A Myself, Chuck Burgert, John Jenkins, perhaps
24 Devin Moose, I believe. I believe that's it.
25 Q Okay. During your review of the application,
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KEEFE REPORTING COMPANY
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1 would you from time to time meet with Robert Smith of
2 the State's Attorney's office?
3 A Yes.
4 Q Do you recall about how many times you would
5 have met with him?
6 A Prior to the hearings?
7 Q Prior to.
8 A Several. I would say five or more.
9 Q You did indicate you testified at the
10 hearing; is that correct?
11 A Yes.
12 Q Did Mr. Smith help you or help prepare you
13 for your testimony?
14 A He informed me a little bit logistically, I
15 suppose, about how things would be handled, if that's
16 what you mean.
17 Q Did you discuss the specifics of your
18 testimony with Mr. Smith?
19 A Yes.
20 Q Did you and Mr. Smith put together some
21 specific questions that you were going to be asked?
22 A I formulated some questions that I thought
23 would be good questions.
24 Q And were those questions ultimately asked of
25 you?
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1 A Some of them. Some of them weren't, I
2 think.
3 Q Other than testifying at the hearing, did you
4 attend all of the hearings?
5 A Not all of the hearings. I don't recall
6 exactly how many I attended, but certainly not all of
7 them.
8 Q During the hearings that you attended, did
9 you provide questions to Mr. Smith that he in turn
10 could ask the witnesses?
11 A I don't believe that I did, no.
12 Q During your review of the application, did
13 you know that Hanson had done some prior work for ESG
14 Watts?
15 A Yes.
16 Q And how did you come by that knowledge?
17 A Just kind of secondhand. I had heard it
18 mentioned that we had done some work there before.
19 Q During Hanson's review of the application,
20 were there -- and this is prior to the hearings. Were
21 there any discussions regarding the merits of the
22 application?
23 A I don't recall exactly, but probably.
24 Q During those discussions, did you discuss
25 what you might or what might be -- what you might have
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1 felt were shortcomings of the application?
2 A Probably so, yes.
3 Q Did you ever at any time prior to the
4 hearings or during discuss any method or means by
5 which those shortcomings could be addressed or
6 overcome?
7 A Yes, I believe so, probably.
8 Q Okay. Do you recall whether you or anyone at
9 Hanson ever presented any of those methods or means to
10 the site review committee?
11 A No, I don't believe so. These were mainly
12 items that came up as part of the review process, more
13 of between ourselves type of discussions.
14 Q Were you ever asked to develop any
15 engineering alternatives to any of the shortcomings in
16 the application?
17 A No, I don't believe so.
18 Q Who was Hanson's client in this matter?
19 A Sangamon County, as far as I know.
20 Q Does that include the Sangamon County State's
21 Attorney's office?
22 A I don't know.
23 Q Does it include the Sangamon County
24 Department of Public Health?
25 A I don't know.
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1 Q Does it include the siting review committee?
2 A I don't know.
3 Q Does it include the Sangamon County Board?
4 A I am not sure.
5 Q Did anyone at Hanson ever tell you, with any
6 more specificity than just Sangamon County, who your
7 client was during this project?
8 A Not that I am aware of, no.
9 Q Based upon your participation in the process,
10 what is your understanding of who your client was?
11 A I don't know that I ever expressed any
12 burning desire to find that out. I had tasks to
13 perform, and it didn't really make much difference who
14 the client was.
15 Q Other than Mr. Smith, did you meet with
16 anyone from the Sangamon County State's Attorney's
17 office?
18 A I don't believe so.
19 Q Okay. During the whole process did you ever
20 meet with anyone from the Sangamon County Department
21 of Public Health?
22 A Yes.
23 Q Okay. Who was that?
24 A I believe his last name was Alexander. I
25 think he was someone from Public Health that had
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1 experience at the landfill.
2 Q How many occasions did you meet with him?
3 A Once, I believe.
4 Q Where was that?
5 A We took -- we went to the landfill and had a
6 tour of the facility there.
7 Q Did you ever meet with Jim Stone in relation
8 to the application?
9 A Not that I recall. I may have.
10 Q Okay. Did you ever meet with or communicate
11 with any members of the siting review committee during
12 this process?
13 A No. Just in passing to say hello is all.
14 Q How about any other Members of the County
15 Board, other than those that were on the siting review
16 committee?
17 A No.
18 MR. NORTHRUP: I don't have any further
19 questions.
20 HEARING OFFICER CROWLEY: Mr. Smith?
21 MR. SMITH: No questions.
22 HEARING OFFICER CROWLEY: Thank you. You are
23 excused.
24 (The witness left the stand.)
25 MR. NORTHRUP: My next witness is Charles
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1 Burgert.
2 (Whereupon the witness was sworn by the Notary
3 Public.)
4 C H A R L E S E. B U R G E R T,
5 having been first duly sworn by the Notary Public,
6 saith as follows:
7 DIRECT EXAMINATION
8 BY MR. NORTHRUP:
9 Q Can you state your name for the record.
10 A It is Charles E. Burgert.
11 Q And you are --
12 HEARING OFFICER CROWLEY: Excuse me one moment.
13 Would you like a glass of water?
14 THE WITNESS: Yes.
15 (Whereupon a short recess was taken.)
16 HEARING OFFICER CROWLEY: Excuse me for
17 interrupting, Mr. Northrup.
18 MR. NORTHRUP: That is okay.
19 Q (By Mr. Northrup) We have your name on the
20 record, right?
21 A Yes.
22 Q You are currently employed at Hanson
23 Engineers?
24 A That is correct.
25 Q You are a geo technical engineer?
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1 A Yes.
2 Q And you participated in the review of the ESG
3 Watts siting application?
4 A Yes.
5 Q Give me a real in general synopsis of what
6 you did as far as your review?
7 A I reviewed the clay liner, the clay cover
8 aspects, the -- I guess some of the aspects with the
9 slopes of the landfill, and some of the surface
10 hydrology aspects.
11 Q Okay. You did testify at the hearing?
12 A Yes, I did.
13 Q Prior to the hearings, did you meet with
14 anyone from the Illinois EPA?
15 A We had one meeting, which has been mentioned
16 previously here, with Chris Leadman.
17 Q Did you advise anyone at ESG Watts of that
18 meeting?
19 A No.
20 Q And there was no one from ESG Watts at the
21 meeting, correct?
22 A No.
23 Q Why were you meeting with Mr. Leadman?
24 A We were -- the purpose of the meeting was to
25 try and develop more of an understanding of the
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1 history of the landfill.
2 Q Did you bring anything with you to the
3 meeting?
4 A Yes, I brought some drawings that were from
5 the application, and I believe we brought some
6 historical drawings that came from the FOIA request.
7 Q During Hanson's review of the application,
8 would you from time to time meet with Mr. Robert
9 Smith?
10 A Yes, Robert came to our office several
11 times.
12 Q Do you recall how many times?
13 A I can't give you a specific number, but I am
14 sure it was more than five times. There was about a
15 one or four week period maybe.
16 Q Did Mr. Smith help prepare you for your
17 examination?
18 A I wouldn't say that Mr. Smith helped prepare
19 me.
20 Q Did he assist you in any way with respect to
21 your testimony?
22 A I don't think he assisted me either.
23 Q Did you discuss any questions that he might
24 ask you?
25 A I discussed my findings with Mr. Smith, and
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1 in my particular presentation it involved upwards of
2 about 26 figures and drawings, and I did suggest
3 questions to Mr. Smith so that we could organize the
4 presentation of those drawings in a clear and concise
5 manner to the hearing.
6 Q Did Mr. Smith in general follow along with
7 the suggestions that you had made?
8 A I think as far as in general that we did
9 follow a format to present the information.
10 Q During the hearing, would you from time to
11 time provide Mr. Smith with questions that he could
12 ask other witnesses who might be on the stand?
13 A There was one gentleman that -- Mr. Burgstrom
14 (spelled phonetically) and he was the opposing expert,
15 I guess you would say, to my testimony. And during
16 his testimony or even prior to his testimony, I
17 prepared some general questions, because he had
18 inconsistencies with some of our findings, and thought
19 it would be good to have those asked so we could try
20 and understand his basis.
21 Q And were those questions ultimately asked?
22 A In general I would say that they were. I
23 can't say word for word that they were.
24 Q After Mr. Smith had had this opportunity to
25 ask the questions that you suggested, did you have any
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1 remaining concerns with Mr. Burgstrom's testimony?
2 A I think there is still areas of
3 inconsistencies between our findings and Mr.
4 Burgstrom's reports, but it would take more than
5 questions to get answers to those.
6 Q What would it take other than questions?
7 A I think it would take additional site
8 investigations.
9 Q At any time throughout this process, did you
10 advise Mr. Smith that additional site investigation
11 might be warranted?
12 A I think that if I recall, when we show or at
13 least when our findings were developed and they were
14 inconsistent with Mr. Burgstrom's findings that the
15 only way you could get an answer to them is by more
16 site investigations. And even if you did more site
17 investigations possibly you couldn't get all of the
18 answers to the inconsistencies.
19 Q Did you so advise Mr. Smith of that fact?
20 A I don't know if I specifically advised him of
21 that, as much as just in discussing my findings
22 indicated that there is areas that need additional
23 work if they can be determined.
24 Q Did you ever advise anyone on the site review
25 committee that additional investigation might be
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1 warranted?
2 A I don't believe anyone ever asked that
3 question.
4 Q So I take it that's a no, you did not advise
5 anyone on the committee?
6 A Well, once again, I will say I was never
7 asked that question.
8 Q And, again, I will ask you, did you ever
9 advise anyone on the committee that additional site
10 investigation might be warranted?
11 MR. SMITH: Objection. Asked and answered.
12 MR. NORTHRUP: Well, that's the point, Your
13 Honor. It has not been answered. If you would
14 instruct --
15 HEARING OFFICER CROWLEY: I will allow him to
16 answer. Please do.
17 THE WITNESS: Okay. Would you please read it
18 again? Did I --
19 Q (By Mr. Northrup) Did you ever advise anybody
20 on the committee that additional investigation might
21 be warranted?
22 A I never advised anyone on the committee that
23 additional investigation could be warranted, but then
24 again -- well, I will leave it like that.
25 Q Throughout this process did you ever have any
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1 communications with anybody on the site review
2 committee?
3 A Yes, one.
4 Q Okay. Tell me about that.
5 A There was a gentleman at -- during a break,
6 when I was out in the hallway, who came up to me and
7 introduced himself, and when he introduced himself I
8 told him that I couldn't talk to him.
9 Q That was the only communication that you had
10 with anybody on the committee?
11 A Yes, that's correct.
12 Q Did you ever have any communications with
13 anybody on the Sangamon County Board other than anyone
14 who might have been on the committee?
15 A Not to my knowledge, no.
16 Q Did you ever have any communications with
17 anybody from the Sangamon County Department of Public
18 Health during this process?
19 A One time I believe I talked to Mr. Stone
20 about I needed a location to put our exhibits to store
21 them.
22 Q Anything of substance related to the
23 application?
24 A No.
25 Q During the review of the application, did you
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1 ever become aware that Hanson had performed some prior
2 work for ESG Watts?
3 A I believe I became aware of that during the
4 hearings possibly. I think it was during the
5 hearings.
6 Q All right. Do you recall how you became
7 aware of that?
8 A I think I heard some questions asked during
9 the hearing about that.
10 Q Who was Hanson's client in this matter?
11 A I never found that out. I don't know.
12 Q Did you ever ask anyone?
13 A No.
14 Q Throughout this process and -- well, based
15 upon your participation in this process, what was your
16 understanding of who Hanson's client was?
17 A Sangamon County.
18 Q Did Sangamon County include the Sangamon
19 County State's Attorney's office?
20 A I would just say Sangamon County. Once
21 again, I did my work on the technical aspects. I was
22 not involved in the contract or any other of those
23 aspects, so I had no specific knowledge as to who the
24 client was.
25 Q Well, I am asking you about your perception?
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1 A My perception would be Sangamon County.
2 Q Okay. Did that include the State's
3 Attorney's office?
4 A I -- well, once again, Sangamon County, I
5 guess it doesn't include it.
6 Q I am sorry?
7 A I don't get where you are going at here.
8 Q Well, did you say it does or does not include
9 the State's Attorney's office?
10 A I didn't view the State's Attorney's office
11 as our client, if that's what you are asking.
12 Q Okay. Who did you view as your client?
13 A I viewed Sangamon County, I guess, as our
14 client. Once again, I had no knowledge of exactly who
15 our client was. I just concentrated on the technical
16 aspects.
17 Q Did Sangamon County include the Department --
18 the Sangamon County Department of Public Health?
19 A I don't know.
20 Q Did it include the site or siting review
21 committee?
22 A I don't know.
23 Q Did it include the Sangamon County Board?
24 A I don't know.
25 (Mr. Northrup and Mr. Woodward confer briefly.)
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1 Q (By Mr. Northrup) During Hanson's review of
2 the application, were there any discussion regarding
3 the merits of the application?
4 A You know, the best answer that I could give
5 to that is the paragraph that we have written in the
6 summary report, because I think that summarizes our
7 opinion on the application rather well.
8 Q Well, prior to the actual hearings, were
9 there --
10 A Oh, prior to the hearings.
11 Q Right.
12 A Okay.
13 Q Were there any discussions as to the merits
14 of the application?
15 A To the merits? I don't recall that. Once
16 again, I concentrated on a specific area and not on
17 all ten criteria on the report. I was only involved
18 in one.
19 CROSS EXAMINATION
20 BY MR. WOODWARD:
21 Q You testified that you could not speak to any
22 County Board member outside the hearing. Can you tell
23 me why you could not?
24 A As I recall, there had been a member who had
25 leaned over the railing and asked John a question, and
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1 that I believe that was brought up by either yourself
2 or Mr. Northrup as, you know, wanting an explanation
3 or something to the hearing officer. So at that point
4 we were instructed that we should not talk at all. Of
5 course, when the gentleman introduced himself and
6 wanted to talk to me, I just apologized and said I am
7 sorry, but we are not allowed to talk to the Members
8 on the Board.
9 Q From a perception standpoint, are you usually
10 not allowed to talk to your client?
11 A I don't understand the question.
12 Q Okay. I believe you indicated that you never
13 found out who your client was. He asked from your
14 perception whether it included the siting review
15 board, and you said you didn't know. So now I am
16 asking you from normal engineering practices, are you
17 not allowed to speak to your client?
18 A I don't know what relevance that has here,
19 them being our client. So I don't know what --
20 Q I am not asking you to understand the reason
21 for the question. I am asking you to answer the
22 question.
23 A I think the -- I find the question
24 unanswerable, I guess.
25 Q Okay. Would the fact that you could not
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1 speak to members of the siting review board affect or
2 help you to form a perception that the siting review
3 board was not your client?
4 A I don't understand what you are saying,
5 actually.
6 Q What factors normally go into your forming a
7 perception of who your client is?
8 MR. SMITH: I am going to object as to the
9 relevancy as to Mr. Burgert's interpretation of who
10 his client was, how that is relevant to these
11 proceedings.
12 MR. WOODWARD: I think that goes to the very heart
13 of our argument of denial of fundamental due process.
14 We have a group of engineers who have signed a
15 contract with the County of Sangamon who have now said
16 we never bothered to find out who our client was, so
17 we don't know whether they engaged in improper contact
18 or not. We don't know whether they -- their opinions
19 were restricted solely to opinions on the record, or
20 whether they gave them directly to -- because none of
21 them can remember.
22 So I am asking this gentleman to tell me what it
23 is that forms a perception of who his client is in a
24 normal circumstance. I am trying to find out whether
25 he is being truthful when he says I don't know -- I
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1 don't know who my client is, and I don't have a
2 perception of who my client is.
3 THE WITNESS: Can I answer?
4 HEARING OFFICER CROWLEY: If you care to, yes.
5 THE WITNESS: The previous answer I gave, which is
6 the truthful answer in this case, is that I concerned
7 myself with the technical aspects of the clay liner,
8 the clay cover, the slopes, the surface hydrology. I
9 was not involved in the contract negotiations. I was
10 not involved in the request for proposal. I was not
11 involved in any of those items. So I can't answer
12 your questions.
13 Q (By Mr. Woodward) As an engineer you were
14 involved in giving expert testimony, were you not?
15 A On the areas that I investigated.
16 Q And as an engineer don't you have some
17 professional ethics that restrict your ability to --
18 restrict your abilities to do certain things when you
19 serve as an expert witness?
20 HEARING OFFICER CROWLEY: I am going to stop this
21 here. This is your witness. He has answered the
22 question you have asked him more than once.
23 MR. WOODWARD: That's all I have.
24 HEARING OFFICER CROWLEY: Thank you. Mr. Smith,
25 do you have anything?
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1 MR. SMITH: Thanks.
2 CROSS EXAMINATION
3 BY MR. SMITH:
4 Q In your meeting with Chris Leadman of the
5 Illinois Environmental Protection Agency, did Mr.
6 Leadman express an opinion as to the merits of the
7 application?
8 A No, he did not. As a matter of fact, when we
9 went into Mr. Leadman's office, he specifically told
10 us right out before anything was said he told us that
11 he could not express an opinion on the landfill. He
12 could not express any opinions to us at all. That if
13 we had some kind of historical question about when
14 certain areas were filled, that he might be able to
15 help us with that. But he was very specific about
16 that.
17 Q Mr. Northrup asked you questions concerning
18 the conflicting nature of your testimony in
19 relationship to Dr. Burgstrom's testimony, and that
20 your solution may be additional site investigations.
21 During the course of the proceedings testifying you
22 were subject to cross-examination; isn't that true?
23 A Yes.
24 Q Mr. Northrup could have asked you questions
25 about, Mr. Burgert, your findings were totally
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1 different than what Mr. Burgstrom's are. What can we
2 do to solve these problems. He could have asked these
3 questions?
4 A Yes.
5 Q Did he ever ask you those questions?
6 A Not to my recollection.
7 Q Would your opinions have been different as to
8 the merits of the application if ESG Watts was your
9 client?
10 A No, our findings are our findings.
11 MR. SMITH: All right. I don't have any further
12 questions.
13 HEARING OFFICER CROWLEY: Mr. Northrup?
14 MR. NORTHRUP: I have just a couple quick
15 follow-up.
16 REDIRECT EXAMINATION
17 BY MR. NORTHRUP:
18 Q When you met with Mr. Leadman, did you
19 discuss what regulatory standards would be applicable
20 to the review of the application?
21 A That was not in my area. I didn't discuss
22 that.
23 Q Did someone discuss it at the meeting?
24 A You know, if someone did, I don't recall it.
25 Q If, in fact, as Mr. Smith posed, if ESG Watts
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1 was your client, and there were deficiencies in the
2 application, you would have told them how to fix those
3 deficiencies, would you not?
4 A I don't know if I could or not.
5 Q At least you would have told them?
6 A Pardon me?
7 Q You would have told them where their
8 application or where their proposal was deficient if
9 they were your client?
10 A Well, I guess I am confused on where this is
11 leading. Because what I did was examine the available
12 information --
13 Q Well, I know, and I am not asking --
14 A -- and compare it to theirs.
15 Q I am not asking --
16 A And that there is significant
17 inconsistencies.
18 Q It is a simple question.
19 A I am sure it is simple.
20 Q If ESG Watts was your client and they asked
21 you for your technical support and services in looking
22 at an application, and if you felt that it was
23 deficient, you would tell them?
24 A If they had a deficient application as far as
25 the clay liner, the clay cover, the items that I
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1 looked at, if they were submitting an insufficient
2 application in those areas and I was working for them,
3 which I wasn't, I guess I would, yes.
4 MR. NORTHRUP: Okay. I don't have any further
5 questions.
6 MR. SMITH: Nothing further.
7 HEARING OFFICER CROWLEY: Thank you very much.
8 THE WITNESS: Thank you.
9 (The witness left the stand.)
10 MR. NORTHRUP: Well, I have got two more probably,
11 you know, about the same, half an hour each, so I
12 don't know if you want to go ahead or --
13 HEARING OFFICER CROWLEY: Off the record.
14 (Discussion off the record.)
15 HEARING OFFICER CROWLEY: We are back on the
16 record.
17 We have determined that we will take a ten minute
18 break at this point. We will go through lunch, so if
19 you can find a soft drink or a cookie or something,
20 feel free to bring it back with you. We will resume
21 again at noon.
22 (Whereupon a short recess was taken.)
23 HEARING OFFICER CROWLEY: All right. We are back
24 on the record.
25 MR. NORTHRUP: We call Devin Moose.
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1 (Whereupon the witness was sworn by the Notary
2 Public.)
3 D E V I N M O O S E,
4 having been first duly sworn by the Notary Public,
5 saith as follows:
6 DIRECT EXAMINATION
7 BY MR. NORTHRUP:
8 Q Could you state your name for the record,
9 please.
10 A Devin Moose.
11 Q And you are the director of a company called
12 Engineering Solutions?
13 A Yes.
14 Q Where is that at?
15 A Geneva, Illinois.
16 Q And you are a geo technical engineer by
17 training?
18 A Civil engineering with geo technical
19 emphasis.
20 Q Okay. And you are familiar with the Watts
21 siting application that is at issue in this case?
22 A Yes.
23 Q Okay. What role did you play in the review
24 of that -- well, in the review of the application?
25 A I was retained by Hanson Engineers to assist
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1 them.
2 Q Assist them more specifically with what?
3 A Initially the assignment was to provide
4 advice and provide my experiences in sitings in other
5 cases and procedurally how a project like that is
6 managed. And then as the work load increased, I was
7 requested to evaluate the application versus some of
8 the criteria.
9 Q Now, had you ever worked on a -- or worked on
10 a case involving siting where it was just related to
11 an overfill?
12 A Not only an overfill, no.
13 Q Okay. But there were some cases that you had
14 worked on in your prior experience that at least dealt
15 in some fashion with an overfill?
16 A I believe, yes.
17 Q Okay. Was one of those the Land of Lakes
18 facility in Romeoville?
19 A Yes.
20 Q Okay. And another one was in Jackson County?
21 A Yes.
22 Q The proceeding in Romeoville, Land of Lakes,
23 who was your client in that case?
24 MR. SMITH: Objection as to relevancy.
25 MR. NORTHRUP: It is going to go to the fact that
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1 Mr. Moose will be able to explain a little bit about
2 the relationship between who is the client of the
3 consultant and that type of thing.
4 HEARING OFFICER CROWLEY: Do you have any
5 response, Mr. Smith?
6 MR. SMITH: Once again, either Hanson's
7 interpretation of who their client was or Mr. Moose,
8 as a subcontractor to Hanson Engineers, who their
9 interpretation of the client is, is not really
10 relevant. None of them were the decision makers.
11 None of them had a vote in this final land site.
12 The Sangamon County Board could have said, Hanson
13 Engineers, you have the greatest piece of papers, but
14 we don't buy it. We like Mr. Northrup's argument
15 better. The fact that the County Board chose Hanson's
16 report, it does not matter. Their opinion as to --
17 Hanson's opinion as to who their client was is not
18 relevant to the subject matter of this proceeding.
19 MR. NORTHRUP: It goes to the entire heart of the
20 argument that there has a been a breach of Watts' --
21 or that fundamental fairness has not been followed in
22 this case.
23 MR. SMITH: How does who Mr. Moose represented in
24 the Land of Lakes case have anything to do with the
25 fundamental fairness of the hearing with the Sangamon
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1 County?
2 MR. NORTHRUP: Because it is going to be
3 additional evidence in cases like this the consultant
4 knows who their client is, knows very well who their
5 client is, and it is either going to be the State's
6 Attorney's office, or it is going to be the County
7 Board. But there is none of this mishmash of, well, I
8 guess our client is Sangamon County, and who are they,
9 well, gee, we don't really know.
10 HEARING OFFICER CROWLEY: I am going to sustain
11 the relevance objection. But I will allow you to
12 enter the testimony as an offer of proof.
13 MR. NORTHRUP: Okay.
14 Q (By Mr. Northrup) And in the Land of Lakes
15 case --
16 HEARING OFFICER CROWLEY: And please do let me
17 know when you have finished your offer of proof, so
18 that we can get Mr. Smith's questions in.
19 MR. NORTHRUP: Okay.
20 Q (By Mr. Northrup) The Land of Lakes facility,
21 you represented the Will County State's Attorney's
22 office?
23 A I believe we were employed by Will County,
24 yes.
25 Q Wasn't it not the Will County State's
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1 Attorney's office?
2 A Will County was my contact for the project.
3 The Will County State's Attorney's office was our
4 contact.
5 Q And in Jackson County, that was also the
6 Jackson County State's Attorney's office?
7 A That was our contact for that project, yes.
8 MR. NORTHRUP: Now, would your ruling also pertain
9 to questions on just how he determines who his client
10 is and that type of thing?
11 HEARING OFFICER CROWLEY: Yes.
12 MR. NORTHRUP: Okay.
13 Q (By Mr. Northrup) Mr. Moose, how do you
14 define who your client is?
15 A Sometimes it can be defined by who is paying
16 you. Sometimes it can be defined by in a contract
17 specifically identifying the client. Sometimes it can
18 be defined by who your project manager is. So I think
19 it changes a little bit depending on the type and
20 nature of the project.
21 MR. NORTHRUP: Okay. That's all I have on that.
22 Thank you.
23 HEARING OFFICER CROWLEY: Mr. Smith, did you have
24 any cross on the offer of proof?
25 MR. SMITH: Yes.
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1 CROSS EXAMINATION (offer of proof)
2 BY MR. SMITH:
3 Q Mr. Moose, are you familiar with the Illinois
4 Environmental Protection Act Regional Pollution
5 Control Facility Siting in Illinois Report?
6 A I have seen it. I don't recall it
7 specifically.
8 HEARING OFFICER CROWLEY: Can we have a date on
9 that, please, Mr. Smith?
10 MR. SMITH: It is from November 12, 1981, through
11 December 13, 1994. The publication date is January of
12 1995.
13 HEARING OFFICER CROWLEY: Thank you.
14 Q (By Mr. Smith) During that time period, there
15 was approximately 80 applications to local governments
16 for landfill expansions of regional pollution control
17 type facilities, do you know?
18 A It sounds reasonable.
19 Q And of those 80 cases, how many were the
20 State's Attorney's office the contacts for?
21 A I don't recall.
22 MR. SMITH: Okay. I don't have anything further.
23 HEARING OFFICER CROWLEY: All right. Anything on
24 redirect?
25 REDIRECT EXAMINATION (offer of proof)
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1 BY MR. NORTHRUP:
2 Q Isn't it true that as far as identifying who
3 the client is that that is something that is
4 identified up front before you really begin any
5 substantive work on a project?
6 A Generally it is defined up front, but it can
7 change over time. In this particular case -- and I
8 should correct myself. In the case of Will County and
9 Jackson County, my clients were those counties. And
10 when I say Will County, I mean the citizens of Will
11 County are who I hold my obligations to.
12 My contact, my person that I report and interact
13 with in Will County was a member of the State's
14 Attorney's office. But I think that generally it is
15 defined up front, and in a case like the Jackson
16 County and Will County -- and when I say county, I am
17 referring to the citizens of that county. I do have
18 contacts within those, and these two cases that you
19 cited were State's Attorney's offices.
20 Q In a case where you represent the citizens of
21 a county, how are their instructions or desires known
22 to you?
23 A Well, their instructions are funneled through
24 my contact, which may or may not be the State's
25 Attorney's office. And in many cases it is, but my
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1 obligation is to a bigger purpose. It is to the
2 people and the health, safety, welfare kind of
3 criteria. It really goes to my obligation to the
4 public.
5 Q But you would agree that this concept of the
6 fact that you represent the county has to be funneled
7 through some elected official, like the State's
8 Attorney's office or --
9 A No, I don't agree with that.
10 Q So how do you -- so then do you make the
11 decision what is best for the citizens of that county?
12 A No, not in the respect of who I report to.
13 Q Okay. Well, who makes that decision then?
14 A That is usually a decision that is made
15 within the unit of government who is going to be the
16 project leader for that particular project.
17 HEARING OFFICER CROWLEY: Which may or may not be
18 an elected official?
19 THE WITNESS: That's correct.
20 Q (By Mr. Northrup) So in a situation like
21 that, the citizens are somewhat separate and apart
22 from the decision maker, correct?
23 A I think your question was in a decision like
24 that -- you would have to be more specific. Can you
25 tell me --
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1 Q Well, in a case where you were working under
2 the impression that, you know, you are representing
3 the citizens of a county, the final decision on
4 whether or not a facility gets sited does not rest
5 with the citizens, it rests with the County Board or
6 whatever other entity the statute may require?
7 A Well, I think that was a pretty broad
8 question. One, I don't think I represent the
9 citizens. I work on behalf of the citizens. They may
10 be my client. So I guess the way the question was
11 phrased about me representing the citizens is really
12 not what I meant to impart in my responses.
13 MR. NORTHRUP: Okay. That's it for me.
14 HEARING OFFICER CROWLEY: That concludes the offer
15 of proof?
16 MR. SMITH: Yes. I don't have any questions.
17 HEARING OFFICER CROWLEY: Fine.
18 Q (By Mr. Northrup) Okay. So you were a
19 subconsultant to Hanson Engineers in this case?
20 A Correct.
21 Q Okay. At some point in the -- when were you
22 brought in to the project?
23 A I don't recall the date. It was sometime, I
24 believe, after the application was filed.
25 Q Okay. Were you at some point during your
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1 work in the case advised that Hanson had done prior
2 work for ESG Watts?
3 A I became aware of it at some point.
4 Q Do you recall how you became aware of that?
5 A It was probably a meeting that was held
6 within Hanson's Engineering office where it -- where I
7 became aware that there was knowledge about the
8 Springfield site, and without specifics I remember
9 arriving at the conclusion that I was informed, well,
10 we worked on that site, we, meaning Hanson.
11 Q During your involvement in the project, did
12 you meet with anyone from the Illinois EPA?
13 A Yes.
14 Q Who was that?
15 A Chris Leadman.
16 Q Was this meeting the one that has been
17 discussed by other witnesses this morning?
18 A It appears as so, yes.
19 Q Okay. At that meeting -- there was no
20 representatives from ESG Watts at the meeting,
21 correct?
22 A No, not to my recollection.
23 Q Do you know if ESG Watts was advised that
24 that meeting was going to take place?
25 A They may have been.
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1 Q Did you have any knowledge that they were?
2 A We were at the landfill facility immediately
3 prior to going to the IEPA. We toured the landfill
4 facility with representatives of Watts. I would be
5 surprised that they were not aware that we were going
6 to the IEPA from that location, but I don't recall
7 specific conversations.
8 Q Okay. When you were at the meeting with
9 Chris Leadman was the issue of what regulatory
10 standards would be applicable in the review discussed?
11 A They may have been.
12 Q What do you recall about those discussions,
13 if anything?
14 A I don't recall, other than in a general way,
15 much about the discussions. We were there to get
16 historical information on the facility, to fill in
17 missing data gaps, to find the status of certain
18 documents that we did not retrieve at our FOIA. And
19 the specifics of the conversation I don't recall
20 precisely.
21 Q During the pendency of the project, were you
22 ever asked to provide or devise any engineering
23 alternatives to the removal of the waste?
24 A I am not sure -- I will have to ask you to
25 repeat the question. But as far as devising
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1 engineering alternatives for removal of the waste, in
2 my opinion, no, we were not asked to devise that. And
3 the second qualifier or the first one that you asked,
4 I don't recall what that was.
5 Q Well, it was during the pendency of the
6 proceeding, were you ever asked to provide any
7 engineering alternatives or devise to the removal of
8 the waste?
9 A We did not devise any. Alternatives were
10 discussed.
11 Q Did you testify at the hearing?
12 A No.
13 Q Do you recall any of those alternatives ever
14 being discussed at the hearing?
15 A I don't recall precisely what was discussed
16 at the hearings that I attended.
17 Q All right. Are you aware that those
18 alternatives were presented in any fashion to the
19 siting review committee?
20 A I am not aware whether they were or they
21 weren't.
22 Q During the review process, did you meet with
23 any members of the Sangamon County Board?
24 A No.
25 Q Did you meet with any members of the siting
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1 review committee?
2 A No.
3 Q Did you meet with any members of the -- or
4 employees of the Sangamon County Department of Public
5 Health?
6 A Yes.
7 Q Who is that?
8 A I do not recall their names.
9 Q Okay.
10 A They attended the landfill tour with us, and
11 there was a site inspector from Sangamon County that
12 was familiar with the site. There may have been more
13 than one.
14 Q Other than that individual, anybody else?
15 A Not to my recollection, meetings. There were
16 social exchanges between Mr. Stone and myself during
17 the hearings, but I don't recall any meetings with
18 anybody else.
19 Q Never any substantive discussion of the
20 application?
21 A No to my recollection, no.
22 Q Okay. During the review process, did you
23 meet with anyone from the Sangamon County State's
24 Attorney's office?
25 A Yes.
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1 Q Who would that have been?
2 A Mr. Smith.
3 Q Did you discuss the substance of the
4 application?
5 A Yes.
6 Q How many times would you have -- do you
7 recall meeting with Mr. Smith?
8 A My recollection is that it would have been
9 between five and ten.
10 Q At any of those meetings was the testimony of
11 Hanson employees discussed, the potential testimony of
12 Hanson employees?
13 A My recollection is that, yes, it would have
14 been.
15 Q Okay. On how many occasions, if you recall?
16 A I don't recall.
17 Q You did attend some of the hearing yourself;
18 is that correct?
19 A Yes.
20 Q Would you from time to time communicate with
21 Mr. Smith questions that you felt would be appropriate
22 to be asked of the witnesses?
23 A Yes.
24 Q Do you have any idea on how many occasions
25 that occurred?
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1 A No.
2 Q Okay. Would Mr. Smith ask those questions?
3 A Occasionally.
4 Q Okay. But not always?
5 A Not always.
6 Q Based upon your participation in the process,
7 do you have an understanding as to who Hanson's client
8 was in this matter?
9 A My understanding is it would have been
10 Sangamon County.
11 Q And would that include -- would Sangamon
12 County include the Sangamon County Board?
13 A To the extent that they are citizens of
14 Sangamon County, yes.
15 Q How about the siting review committee?
16 A The same answer.
17 Q How about the State's Attorney's office?
18 A The same answer.
19 Q And the Department of Public Health?
20 A The same answer.
21 (Mr. Northrup and Mr. Woodward confer briefly.)
22 Q (By Mr. Northrup) Is it your belief that a
23 siting application -- or a siting request can be
24 judged just on the application itself?
25 A If there are -- if it is a prima facie case
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1 and there is no testimony it may be necessary, but
2 generally my understanding is that the application
3 needs to be evaluated based on the record, and the
4 record includes the application testimony, written
5 comments, and all information that is in the record.
6 CROSS EXAMINATION
7 BY MR. WOODWARD:
8 Q Did you give a deposition in this matter on
9 May 13th, 1998?
10 A I believe sometime back in May I did. I
11 don't recall the date.
12 Q Now, as to your meeting with Chris Leadman,
13 was that part of the substantive questions placed to
14 you during the course of your application, what the
15 substance of that meeting was?
16 A I am not aware of any application that -- I
17 don't understand the question.
18 Q I am talking about during the course of your
19 deposition, was the substance of the meeting with
20 Chris Leadman, was that placed -- do you recall that
21 being placed to you?
22 A No, I don't recall the substance of the
23 deposition.
24 MR. WOODWARD: May I approach the witness.
25 MR. SMITH: I would object to him handing him the
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1 deposition and asking him -- to direct questions to
2 him concerning the questions that were asked to see if
3 his recollection needs to be refreshed by looking at
4 the deposition.
5 MR. WOODWARD: Fine.
6 Q (By Mr. Woodward) Do you recall a question
7 being asked of you, do you recall any discussions
8 about what regulations would be applicable in the
9 review of the application?
10 A Not specifically, no.
11 Q Okay. Do you recall giving an answer just
12 generally, generally I think this was our opinion
13 based upon our experience in numerous other sites in
14 Illinois. My recollection is the siting application
15 itself referred to compliance with these regulations
16 in this format and a meeting was held at the IEPA with
17 the permit reviewer at the time, Chris Leadman, who I
18 think concurred with the analysis or the regulatory
19 structure that a facility would be governed under?
20 A I don't recall, no.
21 MR. WOODWARD: Okay. Now may I approach the
22 witness.
23 HEARING OFFICER CROWLEY: Yes.
24 Q (By Mr. Woodward) Is that a transcript of
25 your deposition?
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1 A I have no idea. I requested a right to
2 review these transcripts, and I was not really given
3 the opportunity to do so.
4 MR. SMITH: I would object to the use of this
5 deposition. One, it has not been marked in any type
6 of exhibit and, two, he has not laid the proper
7 foundation.
8 MR. WOODWARD: Could you mark this, please.
9 (Whereupon said document was duly marked for
10 purposes of identification as Petitioner's Exhibit
11 4 as of this date.)
12 HEARING OFFICER CROWLEY: That was the deposition
13 of Devin Moose from what date, please?
14 MR. WOODWARD: May 13th, 1998.
15 HEARING OFFICER CROWLEY: Thank you.
16 Q (By Mr. Woodward) I am handing you what has
17 been marked as Petitioner's Exhibit Number 4.
18 A Yes.
19 Q Is that your deposition transcript?
20 A It appears to be one, but I am not sure it is
21 true and accurate.
22 Q As to page 31, starting with line 3, and
23 going to page 32, line 5, would you review that,
24 please?
25 A (Witness complied.) Okay.
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1 Q Now, do the lines -- do the pages and lines
2 that I have indicated deal with discussion of the
3 regulations identified as 814, Subpart C?
4 A They -- no.
5 Q Up here?
6 A Well, yes, it covers a lot of things.
7 Q Okay. Now, back down on line 22, when it
8 says this was our -- line 21 and 22, where it says,
9 this was our opinion, are you talking about 814
10 Subpart C is applicable regulations?
11 A I am responding to the question that is just
12 above it.
13 Q Okay. What is your opinion then at that
14 point? Is it that --
15 A My opinion --
16 MR. SMITH: Hold it. Excuse me, Devin. I am
17 going to object. One, it is not proper impeachment.
18 Two, he has not laid the foundation for the document
19 in front him. It is not improper impeachment, if that
20 is what he is attempting to do.
21 Q (By Mr. Woodward) Well, after reading that,
22 is that -- were those pages and lines?
23 HEARING OFFICER CROWLEY: Sustained. I will let
24 you try to --
25 MR. WOODWARD: I assumed she was sustaining. I am
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1 sorry.
2 HEARING OFFICER CROWLEY: That's all right.
3 Q (By Mr. Woodward) As to the pages and lines
4 that I directed your attention to, is that an accurate
5 transcription of your deposition testimony?
6 A No, I don't accept that. I specifically
7 requested the right to review my transcript, and I was
8 denied the right.
9 Q You are now being given that opportunity to
10 review those particular pages and lines, and is that
11 an accurate transcription?
12 A I have no way of -- this is six months later
13 or seven months later. I can't recall precisely what
14 I said seven months ago.
15 MR. WOODWARD: Okay. I will go at this a
16 different way.
17 Q (By Mr. Woodward) Before you met with Chris
18 Leadman, did you have an opinion as to what applicable
19 regulations applied to the application of ESG Watts
20 for siting approval at the Sangamon Valley landfill?
21 MR. SMITH: I am going to object as to the
22 relevancy, what Mr. Moose's opinion as to what the
23 regulations implied. It could have been matters of
24 record. They could have called him as potential
25 witness at the landfill trial if they so desired. We
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1 are getting outside the scope of what criteria was
2 required. They are only supposed to be as to matters
3 of record, and not to go outside.
4 MR. WOODWARD: I am not asking this for the
5 purpose of establishing what standards do apply. I am
6 asking this for the purpose of determining whether he
7 did have an opinion as to what standards apply before
8 he met with Chris Leadman. He now has indicated that
9 he does not recall the substance of that meeting, and
10 I am going to try to reach what his recollection is a
11 different way from the transcript.
12 MR. SMITH: I would object as to what relevancy,
13 whether he had an opinion as to whether 814 Subpart C,
14 Subpart D, or 811 apply. It is the final -- the
15 County Board made a determination of what regulations
16 should apply or shouldn't apply, and that's the issue,
17 not Mr. Moose's.
18 MR. WOODWARD: I believe a part of our objection
19 is that the meeting with Chris Leadman was an ex parte
20 communication that we should have been notified of and
21 had the right to attend, and if a discussion of what
22 applicable standards were going to be made applicable
23 to our application that we would have input into that
24 at that time.
25 Now, that is particularly relevant to the issue of
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1 denial of due process. You can go all you want to
2 about we didn't ask it at the hearing, but the issue
3 of denial of due process was objected to at the
4 hearing, and we were told that if we wanted to pursue
5 it, we would have to hire other counsel, pay -- I
6 mean, pay for the other counsel, which was not a
7 proper response to that objection.
8 Now, I think we have a right to pursue this when
9 this is the hearing -- this hearing is specifically to
10 establish a record as to whether there was a denial of
11 due process.
12 MR. SMITH: In response, I would refer the Hearing
13 Officer to the petition for hearing. Nowhere in any
14 of the allegations that are alleged in the petition
15 that there was improper contact with members of the
16 Environmental Protection Agency. So now we are even
17 outside the scope of the petition for hearing.
18 Nowhere do they allege that there was improper contact
19 between anybody and the Environmental Protection
20 Agency.
21 MR. NORTHRUP: Well, first of all, that petition
22 reserves our right to bring up whatever other issues
23 we happen to come across. And the first time we
24 learned about this meeting was in the deposition of
25 Mr. Yankey back in May. So we are following up.
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1 There is no issue that we waived this. We didn't know
2 about it until we had to depose the Hanson people.
3 HEARING OFFICER CROWLEY: I will allow the
4 questions. I am not sure of the relevance at this
5 point. I will give you some latitude and let you ask
6 the question, and then we will see where we go.
7 Q (By Mr. Woodward) At the time you met with --
8 I believe the question is -- rather than having you
9 read it back, I will restate it.
10 The question is, at the time that you met with
11 Chris Leadman, did you have an opinion as to what
12 regulatory standards were applicable to the
13 application of ESG Watts, Inc., for local siting
14 approval for the Sangamon Valley landfill?
15 A My recollection is that I had an
16 understanding of what regulatory structure it was
17 governed under, but I had not at that time done an
18 analysis on my own.
19 Q Was your understanding that the regulatory
20 structure was Part 814, Subpart C?
21 A That was the understanding that I was working
22 under at that time.
23 Q Okay. In your meeting with Chris Leadman,
24 was that issue discussed?
25 A I don't recall specifically.
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1 Q You don't recall ever making a statement that
2 Chris Leadman concurred in that analysis?
3 A Not in the context in which you just
4 presented it. That's not consistent with the context
5 of that accurate or inaccurate testimony that you got
6 in front of you. It is generally, to the best of my
7 recollection type qualifiers, and the general
8 understanding of the regulatory structure that I was
9 working with at that time came from the siting
10 application which said that Subpart C were the
11 regulations that it was governed under.
12 HEARING OFFICER CROWLEY: And that's 35 Illinois
13 Administrative Code, Part 814.
14 THE WITNESS: Correct.
15 MR. WOODWARD: I have no further questions.
16 HEARING OFFICER CROWLEY: Mr. Smith?
17 CROSS EXAMINATION
18 BY MR. SMITH:
19 Q Mr. Moose, you indicated that you worked for
20 Environmental Solutions?
21 A Engineering Solutions.
22 Q Sorry. Engineering Solutions. Is that a
23 subsidiary of Geo Tech?
24 A Envirogen.
25 Q Does either Engineering Solutions or
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1 Envirogen currently have a contract with ESG Watts to
2 perform work at the Sangamon Valley Landfill?
3 A Yes, we do.
4 Q Did you get permission from the County of
5 Sangamon before entering into this agreement with ESG
6 Watts to work for --
7 MR. NORTHRUP: I will object. What is the
8 relevance?
9 MR. SMITH: They brought out issues of Hanson
10 Engineering and the normal practice of asking your
11 former clients if it is okay to work for your current
12 clients. I am going to show that their own engineers,
13 they didn't do the same courtesy.
14 MR. NORTHRUP: In the context of the siting --
15 HEARING OFFICER CROWLEY: If you care to -- the
16 objection is sustained. If you care to do it, it
17 would be as an offer of proof.
18 MR. SMITH: I will make an offer of proof.
19 THE WITNESS: What is the question pending? I am
20 sorry.
21 Q (By Mr. Smith) Did either Engineering
22 Solutions or Envirogen seek permission or inform the
23 County of Sangamon that you were then going to be
24 working on the ESG Watts application to try to get
25 approval for this overfill?
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1 A No.
2 Q Did you ask Hanson Engineers or advise Hanson
3 Engineers that either Engineering Solutions or
4 Envirogen was going to be working for ESG Watts in
5 relationship to the application that had previously
6 been pending before the Sangamon County Board?
7 A There was an attempt to reach Hanson
8 Engineering to let them know, and our efforts at
9 contacting one another were not successful.
10 HEARING OFFICER CROWLEY: I am sorry? Your
11 efforts --
12 THE WITNESS: Efforts at contacting one another
13 were not successful.
14 Q What attempts did you make?
15 A I placed phone calls to George Jamison. He
16 was at the time out of the office on an extended
17 trial. And enough time had gone by between phone
18 calls that we just never connected. At the time it
19 had been six or seven months since I heard anything
20 from anybody relative to the project. And I was
21 unaware that there was litigation going on. So I
22 thought the project was over, done and closed.
23 So Watts actually approached me and asked to get
24 a -- asked us to get involved in their Taylor Ridge
25 facility, and we moved down to also come up with some
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1 plans for Sangamon Valley. I did not feel comfortable
2 calling the County, because I did not want to end run
3 my client. My client was Hanson. And I thought it
4 was inappropriate for me to call Hanson's client.
5 Q Did you follow-up your unanswered phone calls
6 with a letter?
7 A No, I did not.
8 Q Do you know the fax number for Hanson
9 Engineers?
10 A I don't recall, but I am sure I have it
11 available.
12 Q Could you fax things to them during the
13 course of the proceedings?
14 A Sure.
15 MR. SMITH: I don't have anything further on the
16 offer of proof.
17 HEARING OFFICER CROWLEY: Any cross on the offer
18 of proof?
19 CROSS EXAMINATION
20 BY MR. NORTHRUP:
21 Q Have you attempted to meet with any
22 representatives of Sangamon County on the Sangamon
23 Valley Landfill?
24 A Yes.
25 Q And has the County responded to those
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1 requests?
2 A Responded? They have met with us, yes.
3 MR. NORTHRUP: No further questions.
4 Q (By Mr. Smith) When you --
5 HEARING OFFICER CROWLEY: That ends the offer of
6 proof?
7 MR. SMITH: That's correct. I am sorry.
8 Q (By Mr. Smith) When you took a tour of the
9 landfill facility with the representative from the
10 Sangamon County Department of Public Health, were
11 there any County Board Members present?
12 A No.
13 Q Was there any members of the siting review
14 committee present?
15 A No.
16 Q Did you attend all of the meetings of the
17 siting review committee?
18 A No.
19 Q Did you attend the final County Board meeting
20 in which the resolution was discussed?
21 A No.
22 Q You indicated that occasionally you asked --
23 you handed questions to be asked that were not asked
24 of the witnesses. Do you recall that statement?
25 A Yes.
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1 Q Okay. Were there any questions that were not
2 asked that changed the recommendations to Hanson, your
3 client?
4 A I didn't make any recommendations.
5 Q 39.2 indicates that an applicant shall file
6 a -- excuse me. 415 ILCS 5/39.2(c) of the
7 Environmental Protection Act says, an applicant shall
8 file a copy of its request, with the County Board of
9 the county or the governing body of the municipality
10 in which the proposed site is located. The request
11 shall include (1) the substance of the applicant's
12 proposal and (2) all documents, if any, submitted as
13 of that date to the Agency pertaining to the proposed
14 facility, except trade secrets.
15 Mr. Northrup earlier asked you is it possible just
16 to decide the case alone on the application itself.
17 Do you recall that question?
18 A Yes.
19 Q Doesn't the statute require more than just an
20 application? You have to submit all documents that
21 were submitted pertaining --
22 MR. NORTHRUP: Objection. The statute speaks for
23 itself.
24 Q (By Mr. Smith) -- pertaining to the proposed
25 facility?
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1 HEARING OFFICER CROWLEY: The statute speaks for
2 itself.
3 Q (By Mr. Smith) During the course of this
4 siting application, did Hanson's have to file a
5 Freedom of Information Act request with the
6 Environmental Protection Agency?
7 A Hanson did file a Freedom of Information
8 request to obtain additional information, that is
9 correct.
10 Q Three boxes of information -- approximately
11 three banker boxes of information was retained from
12 the Agency that was not included in the original
13 application?
14 A My recollection is that it was more than
15 that, but it was certainly a substantial amount of
16 information.
17 Q And those documents were necessary for Hanson
18 to --
19 MR. NORTHRUP: Objection. He seems to be going to
20 the merits of the application.
21 MR. SMITH: Mr. Northrup asked questions
22 concerning how can you decide -- can you just decide
23 the case on the application alone. I am expanding
24 that you need more. Hanson needed more than what was
25 filed.
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1 HEARING OFFICER CROWLEY: I will overrule the
2 objection. Go ahead.
3 THE WITNESS: In my opinion, additional
4 information was necessary in order to evaluate the
5 application.
6 MR. SMITH: All right. I don't have anything
7 further.
8 HEARING OFFICER CROWLEY: All right. Thank you
9 very much, Mr. Moose.
10 THE WITNESS: You are welcome.
11 (The witness left the stand.)
12 HEARING OFFICER CROWLEY: Can we go off the record
13 for just a second.
14 (Discussion off the record.)
15 MR. NORTHRUP: We now call Jim Stone.
16 (Whereupon the witness was sworn by the Notary
17 Public.)
18 J A M E S S T O N E,
19 having been first duly sworn by the Notary Public,
20 deposeth and saith as follows:
21 DIRECT EXAMINATION
22 BY MR. NORTHRUP:
23 Q Could you state your name for the record,
24 please.
25 A James Stone.
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1 Q And you are the Director of the Sangamon
2 County Department of Public Health?
3 A That's correct.
4 Q You held that position since at least
5 December of 1996?
6 A Yes.
7 Q You are familiar with the siting proceeding
8 that we have all been talking about?
9 A Yes.
10 Q Can you describe for me the role that your
11 department played in this matter?
12 A In the County's ordinance regarding the
13 siting process, the Health Department is listed as --
14 this is not verbatim -- its role is to assist the
15 committee, the siting committee in getting whatever
16 would be necessary to go through the process. I spent
17 time basically getting conference rooms, making sure
18 documents were at meetings, as needed, arranging
19 schedules, things of that nature.
20 Q Okay. We have talked a lot about the siting
21 review committee. Can you explain exactly what that
22 is and who makes it up?
23 A The siting review committee consists of the
24 County Board Solid Waste & Management Planning
25 Committee plus the County Board Chairman acting as
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1 chair of the siting committee.
2 Q And that is the committee that all of the
3 hearings were before?
4 A That's correct.
5 Q Would you from time to time have occasion to
6 interpret the siting ordinance?
7 A It depends on how you say interpret. I
8 looked at the ordinance as far as the deadlines were
9 concerned and the time frames, things of that nature.
10 As far as to the merit of the application or the case
11 if front of us, I would not see that as the definition
12 of the interpretation, no.
13 Q With respect to the deadlines and the time
14 frames and all of that, would you from time to time
15 call upon the State's Attorney for advice?
16 A I did after reviewing the ordinance. Any
17 time I looked at the deadline, I tried to confirm with
18 Mr. Smith whether or not I was correct in that
19 interpretation.
20 Q Okay. On those occasions when you would call
21 upon the State's Attorney, Mr. Smith, did these occur
22 both prior to the beginning of the hearings and during
23 the actual hearing process?
24 A Actually, the whole issue of deadlines I
25 believe we dealt with before the hearings actually
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1 began. Because it was, again, my best recollection of
2 the ordinance, it is kind of like a clock starts
3 ticking when the application is filed. And all of the
4 deadlines then start to kind of fall in domino affect
5 based on that, and based on when the hearings are
6 first held.
7 Q Would the siting committee meet periodically
8 throughout this process?
9 A They did.
10 Q Okay. Were you present at those meetings?
11 A Some of them.
12 Q Okay. At the meetings that you were present,
13 was Mr. Smith present?
14 A He may have been.
15 Q Do you ever recall at any of the meetings
16 that you attended the committee asking specific
17 questions of Mr. Smith?
18 A Specific questions?
19 Q Regarding the ordinance or the process, that
20 type of thing?
21 A I think there was some discussion, yes, about
22 the process of what they had to do to go through the
23 siting, because it was new to everyone.
24 Q Okay. And do you recall Mr. Smith responding
25 to those questions?
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1 A I don't recall any specific response, no.
2 Q No, but did he respond?
3 A If he was in the meeting and the County Board
4 asked him a question he probably responded. Whether
5 or not he said anything, I don't know.
6 Q Okay. Did you ever request the State's
7 Attorney's office to file a formal appearance on
8 behalf of the Department of Public Health?
9 A No, not to my knowledge.
10 Q Okay. Other than the siting review committee
11 meetings, and during throughout this process, do you
12 ever recall the State's Attorney's -- the State's
13 Attorney either formally or informally advising the
14 committee on matters related to the ordinance, the
15 siting ordinance?
16 A I don't remember any specific advice, no.
17 MR. NORTHRUP: Those are all of the questions I
18 have.
19 HEARING OFFICER CROWLEY: All right. Thank you.
20 Mr. Smith?
21 MR. SMITH: No questions.
22 (The witness left the stand.)
23 MR. NORTHRUP: The petitioner rests, I guess.
24 HEARING OFFICER CROWLEY: I don't believe that you
25 have moved any of the exhibits that we have marked.
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1 MR. NORTHRUP: I was not sure if I needed to or
2 with the stipulation up front that they are part of
3 the record.
4 HEARING OFFICER CROWLEY: Petitioner 1 through 3
5 have been stipulated to. If you are moving them, we
6 will enter them as marked.
7 MR. NORTHRUP: Okay.
8 HEARING OFFICER CROWLEY: Exhibit Number 4 was
9 marked.
10 MR. NORTHRUP: I would offer 1 through 3 that we
11 stipulated up front and then also, though, there was
12 the additional --
13 MR. SMITH: The offer of proof.
14 MR. NORTHRUP: What was the other document?
15 MR. SMITH: The RFP.
16 MR. NORTHRUP: Yes, the RFP, which I think you
17 also said that you didn't have a problem with, that I
18 didn't have a copy of.
19 MR. SMITH: I don't have a problem with that.
20 MR. NORTHRUP: It is actually 1 through 3.
21 HEARING OFFICER CROWLEY: And then 5.
22 (Whereupon said documents were entered into
23 evidence as Petitioner's Exhibits 1 through 3 as
24 of this date.)
25 MR. WOODWARD: On Number 5 we will obtain a copy
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1 and submit to Mr. --
2 HEARING OFFICER CROWLEY: If Mr. Smith can give me
3 a copy, I will copy it and give it to you guys.
4 MR. SMITH: I was looking for it. I didn't bring
5 my whole filing cabinet full of stuff. I don't have
6 it with me right now.
7 MR. NORTHRUP: Do we need to do a schedule while
8 we are here on the record, as far as briefs?
9 HEARING OFFICER CROWLEY: Let's go off the record
10 for a moment.
11 (Discussion off the record.)
12 HEARING OFFICER CROWLEY: We are back on the
13 record.
14 Off the record we have been discussing the
15 briefing schedule. First, I would ask, does anyone
16 care to make closing arguments here or do you want to
17 reserve them for briefs.
18 MR. NORTHRUP: I will reserve for briefs.
19 MR. SMITH: I will just reserve.
20 HEARING OFFICER CROWLEY: Okay. Fine. The
21 briefing schedule that we have agreed on is based not
22 on the February 28th, 1999 due date that I currently
23 show, but on a June 30th, 1998 due date. We will be
24 receiving a written separate waiver on that shortly,
25 correct, Mr. Northrup?
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1 MR. NORTHRUP: Yes.
2 HEARING OFFICER CROWLEY: So based on a June 30th,
3 1999 due date, the petitioner's brief is due January
4 25th, 1999. The respondent's brief is due February
5 16th, 1999. And any reply brief the petitioner may
6 chose to file would be due March 2nd, 1999.
7 The only matter left over is that we have to get a
8 copy of Petitioner's Exhibit Number 5 to mark and get
9 to everyone. And I think that takes care of
10 everything that we have here.
11 All right. Do you have anything additional, Mr.
12 Northrup?
13 MR. NORTHRUP: No, I believe that's it, Your
14 Honor.
15 HEARING OFFICER CROWLEY: Mr. Smith?
16 MR. SMITH: No.
17 HEARING OFFICER CROWLEY: Okay. Fine. At this
18 point we will adjourn the hearing in PCB 98-2. We had
19 noticed that we were going to begin the hearing in AC
20 98-4 immediately upon conclusion of 98-2 hearing.
21 We will reconvene at 2:00 and open that hearing at
22 that point. Thank you.
23 MR. NORTHRUP: Thank you.
24 (Whereupon said document was duly marked at a
25 later time after the hearing for purposes of
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1 identification, and was entered into evidence as
2 Petitioner's Exhibit 5 as of this date.)
3 (Exhibits were retained by Hearing Officer
4 Crowley.)
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1 STATE OF ILLINOIS )
) SS
2 COUNTY OF MONTGOMERY)
3
4 C E R T I F I C A T E
5
6 I, DARLENE M. NIEMEYER, a Notary Public in and for
7 the County of Montgomery, State of Illinois, DO HEREBY
8 CERTIFY that the foregoing 116 pages comprise a true,
9 complete and correct transcript of the proceedings
10 held on the 7th of December A.D., 1998, at 600 South
11 Second Street, Third Floor Conference Room,
12 Springfield, Illinois, in the case of ESG Watts, Inc.
13 v. Sangamon County Board, in proceedings held before
14 the Honorable Kathleen Crowley, Hearing Officer, and
15 recorded in machine shorthand by me.
16 IN WITNESS WHEREOF I have hereunto set my hand and
17 affixed my Notarial Seal this 14th day of December
18 A.D., 1998.
19
20
Notary Public and
21 Certified Shorthand Reporter and
Registered Professional Reporter
22
CSR License No. 084-003677
23 My Commission Expires: 03-02-99
24
25
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