1
1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2
3
4 SIERRA CLUB and JIM BENSMAN, )
)
5 Petitioners, )
)
6 vs. ) No. PCB-98-43
)
7 CITY OF WOOD RIVER and NORTON )
ENVIRONMENTAL, )
8 )
Respondents. )
9
10
HEARING
11
On Tuesday, December 2, 1997, at 1:30 p.m.
12
Wood River City Hall
13 111 Wood River Avenue, Wood River, Illinois
14
15 APPEARANCES
16 The Hearing Officer: Deborah L.
Feinen
Also present: John
Burds
17
For Petitioner Jim
Bensman: Pro se
18
For Respondent City of Wood River:
Hodge & Dwyer
19 By: Christine G.
Zeman, Attorney at Law
20 For Respondent Norton Environmental:
Schain, Firsel & Burney, Ltd.
21 By: Glenn C.
Sechen, Attorney at Law
22
23
24 Reporter: Vicki G.
Kasten, CSR #084-003245, RPR #1945
Keefe Reporting Company Belleville, IL (618) 277-0190
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1 THE HEARING OFFICER: We're going to go ahead and
2 start.
3 Good afternoon. My name is
Deb Feinen, and I'm the
4 Illinois Pollution Control Board Hearing Officer for
5 this case. To my left is Jack
Burds, who is also a
6 hearing officer for the Pollution Control Board. He's
7 here to observe.
8 For the record, I would note that it is one
9 forty-five, on December 2nd, 1997, and that there are
10 members of the public present. We're getting started a
11 little bit late because we had been waiting in case
12 Robert
Larson showed up on behalf of the Sierra Club.
13 He has entered an appearance, but he has not appeared
14 yet here at the hearing.
15 The proceeding before us today is Sierra Club and Jim
16 Bensman, versus the City of Wood River and Norton
17 Environmental. It's PCB-98-43.
18 And there are members of the public present, so I
19 will just briefly caution that the Illinois
20 Environmental Protection Act, although it does allow
21 members of the public to make a statement on the
22 record, specifically states that no new or additional
23 evidence in support of or in opposition to any finding,
24 order, determination, or decision of the appropriate
Keefe Reporting Company Belleville, IL (618) 277-0190
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1 county board or governing body shall be heard by the
2 Pollution Control Board.
3 Basically, what that means is, no new evidence on the
4 citing criteria can come in at hearing. You can come
5 forward, though, and make a statement on the record, if
6 you wish to, and we'll just kind of go issue-by-issue
7 as to whether or not it's something that the board can
8 allow on the record.
9 At this time, I'm going to go ahead and allow the
10 attorneys to make appearances on the record, and if you
11 wish to introduce anyone who's here, please feel free
12 to do that, and also, Mr.
Bensman, you can make your
13 appearance on the record.
14 Start at either end. Doesn't matter.
15 MS. ZEMAN: Christine
Zeman with Hodge and Dwyer, on
16 behalf of the City of Wood River. With me is Joey
17 Talbert, as well as the city clerk, Jean Bruce. And
18 behind me are other representatives of the City of Wood
19 River.
20 MR. BENSMAN: Jim
Bensman, for myself.
21 MR. SECHEN: And Glen
Sechen. I'm here on behalf of
22 Norton Environmental.
23 THE HEARING OFFICER: Okay. Does anyone have an
24 opening statement?
Keefe Reporting Company Belleville, IL (618) 277-0190
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1 MR. SECHEN: Not I.
2 THE HEARING OFFICER: Okay. Everyone has waived
3 opening statements.
4 Are there any members of the public who wish to make
5 a statement on the record?
6 Okay. There's no one.
7 Does anyone wish to call any witnesses or put
8 anything into the record at this time?
9 Okay. I am going to go ahead and keep the record
10 open until two o'clock, in case any members of the
11 public come to the hearing and wish to make a
12 statement, or in case Mr.
Larson has been delayed and
13 he feels like he needs to make a statement on the
14 record.
15 At two o'clock, if no one else has come, then we will
16 consider this hearing adjourned.
17 There is already a briefing schedule in place with
18 the final brief being due yesterday, supplemental
19 briefs are due by December 8th, and I believe the
20 supplemental briefs were there in case there was
21 something that needed to be responded to from the
22 hearing.
23 Since there has been basically no action at the
24 hearing, I would expect that at the end of this
Keefe Reporting Company Belleville, IL (618) 277-0190
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1 hearing, the record would be closed and ripe for a
2 decision for the board.
3 Is there any comment to that?
4 MR. BENSMAN: I'm planning on filing a reply. You
5 still have a couple of motions. There are still a
6 couple of motions pending about setting the schedule
7 for a reply.
8 MS. ZEMAN: For the record, I would agree with
9 your ruling with respect to supplemental briefs.
10 The order of Hearing Officer Michael Wallace made
11 clear at the time that this hearing was set, and I
12 believe at the time the scheduling was established,
13 that if supplemental briefs were to be filed, they
14 would only be filed regarding the evidence on
15 fundamental fairness at this hearing.
16 So, I would support your ruling on that and ask that
17 any reply brief actually not be permitted.
18 THE HEARING OFFICER: For the record --
19 MR. SECHEN: May I just respond?
20 THE HEARING OFFICER: Sure.
21 MR. SECHEN: I may file a short memorandum going to
22 the lack of evidence at the hearing.
23 THE HEARING OFFICER: Okay. For the record, I have
24 Mr.
Wallace's order in front of me, which specifically
Keefe Reporting Company Belleville, IL (618) 277-0190
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1 states supplemental briefs will only be allowed to the
2 extent evidence is presented on the issue of
3 fundamental fairness.
4 And in my previous ruling in response to a request to
5 have new scheduling of the briefs, my ruling was that
6 the prior hearing officer order would stand. If
7 anybody wants to file anything, assuming we don't have
8 anyone who comes in and brings up fundamental fairness
9 at this hearing, if anyone wants to file anything after
10 this hearing is over, they will have to do so with a
11 motion for leave to file with the board, and then it
12 will be up to the board as to whether or not they want
13 to accept additional filing. This does have a decision
14 deadline of January 20th, so we're getting close to the
15 board's deliberation period.
16 Okay. Let's go ahead and go off the record, unless
17 someone comes in.
18 MR. BENSMAN: I was going to --
19 THE HEARING OFFICER: Okay. Let's go back on the
20 record. Mr.
Bensman does have a comment.
21 MR. BENSMAN: There is still a motion pending before
22 you, and a motion pending before the board on
23 modifications to the briefing schedule.
24 THE HEARING OFFICER: That motion was ruled on by me
Keefe Reporting Company Belleville, IL (618) 277-0190
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1 and I did not modify the briefing schedule.
2 MR. BENSMAN: And there was a subsequent -- there was
3 another one after that.
4 THE HEARING OFFICER: And I believe that the board
5 just ruled on that one.
6 MR. BENSMAN: No. There's two -- I made one to you,
7 which you have not ruled on, and
Larson made one to the
8 board, which the board has not ruled on.
9 THE HEARING OFFICER: Ms.
Zeman?
10 MS. ZEMAN: I believe
Larson moved for leave to file
11 a reply brief or a response brief on December 8th, or
12 whatever the original deadline was for the next filing.
13 MR. SECHEN: I have not seen a board order in regard
14 to that motion.
15 THE HEARING OFFICER: Okay. It was my understanding
16 that the board's latest ruling cleared up all
17 outstanding issues. While we're off the record, I will
18 look through the record, and if it has not, I will go
19 ahead and rule on that.
20 (Off the record.)
21 THE HEARING OFFICER: Can we go back on the record.
22 There is a motion from Mr.
Bensman dated November
23 5th, '97, which asks for request for schedule
24 modification and other relief, and discusses the
Keefe Reporting Company Belleville, IL (618) 277-0190
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1 record.
2 The hearing officer was in error when she thought
3 there was an error from both Ms.
Zeman and Mr. Bensman
4 stating that the matter had been cleared up, and so the
5 hearing officer did not know that there were still
6 pending issues in that motion. It was her
7 understanding that the motion was no longer pending
8 from the letter.
9 So, we do have a pending motion dated November 5th
10 from Mr.
Bensman, and we also have a motion from Sierra
11 Club for leave to file a reply brief that is dated
12 November 10th. Both of those motions will be decided
13 by the hearing officer tomorrow and faxed decisions
14 will be sent to all parties tomorrow.
15 Is there anything further?
16 Okay. Are there any members of the public who wish
17 to speak? There have been some people who have come in
18 and out.
19 Okay. Then at this time, it is two o'clock, Mr.
20 Larson still has not appeared, but we are going to go
21 ahead and adjourn the hearing. Thank you all for
22 coming.
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Keefe Reporting Company Belleville, IL (618) 277-0190
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1 STATE OF ILLINOIS )
)
ss.
2 COUNTY OF MADISON )
3
4 COURT_REPORTER'S_CERTIFICATION
__________ _____________
5
6 I, VICKI G. KASTEN, Certified Shorthand Reporter
7 and Notary Public of the State of Illinois, do hereby
8 certify that the foregoing Hearing, was held on
9 Tuesday, December 2, 1997.
10 I do further certify that the foregoing
11 transcript is a true, correct, and complete record of
12 my notes of the proceedings; that the proceedings were
13 taken by me
stenographically, and the foregoing is an
14 accurate and correct transcription of the same.
15 I do further certify that I am not related in
16 any way to any of the parties involved in this action
17 and have no interest in the outcome thereof.
18 Dated December 9 1997.
19
20 _____________________________
VICKI G. KASTEN
21 CSR #084-003245, RPR #1945
22
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Keefe Reporting Company Belleville, IL (618) 277-0190