P98098A.PDF

1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

3 ENVIRONMENTALLY CONCERNED CITIZENS )

ORGANIZATION and BETH FINNEY, )

4 )

Petitioners, )

5 )

vs. ) No. PCB 98-98

6 )

LANDFILL L.L.C d/b/a or a/k/a )

7 WEST END DISPOSAL FACILITY and )

SALINE COUNTY BOARD OF COMMISSIONERS, )

8 )

Respondents. )

13 Proceedings held on March 9, 1998 in

Harrisburg, Illinois before Amy L. Jackson, Hearing

14 Officer.

21 Reporter:

Tricia Emde Huff, CSR #084-003532

Keefe Reporting Company

11 North 44th Street

24 Belleville, IL 62226

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 APPEARANCES:

3 For Petitioners: Mr. Ken

Bleyer, Esq.

608 S. Park Ave.

Herrin, IL 62948

7 For Respondents: Mr. Stephen P.

Hedinger, Esq.

Suite 325 First of America Center

8 1 North Old State Capitol Plaza

Springfield, IL 62701

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BELLEVILLE, IL

1 HEARING OFFICER JACKSON: Good morning,

2 everyone. My name is Amy Jackson and I'm the

3 hearing officer with the Illinois Pollution Control

4 Board. For the record, I note that it is about 9:08

5 a.m. on Monday, March 9, 1998. I also note that

6 members of the public are present today.

7 The proceeding before us is Pollution Control

8 Board Number 98-98, Environmentally Concerned

9 Citizens Organization and Beth

Finney versus

10 Landfill L.L.C. d/b/a or a/k/a West End Disposal

11 Facility and the Saline County Board of

12 Commissioners.

13 For the benefit of those present today who may

14 not be familiar with The Board proceedings I'd first

15 like to briefly explain The Board's process in this

16 type of a hearing. First you should know that it is

17 The Board and not me that will make the decision in

18 this case. My job, as a hearing officer, requires

19 me to conduct the hearing process in a neutral and

20 orderly manner so that we have a clear transcript of

21 these proceedings for The Board to review. It is

22 important that The Board be able to follow the

23 record that we make here today.

24 It is also my responsibility to assess the

25 credibility of any witnesses giving testimony today

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1 and I will do so on the record at the close of these

2 proceedings.

3 At times I may ask for clarification for the

4 record or ask questions of a witness which I believe

5 are necessary and may aid The Board in making their

6 decision in this case.

7 The complaint in this matter alleges that the

8 decision of the Saline County Board of Commissioners

9 in granting local siting approval for a new

10 pollution control facility to Landfill L.L.C. was

11 against the manifest weight of the evidence, that

12 the hearing process was fundamentally unfair and

13 that The Board of Commissioners lack jurisdiction

14 over the siting application.

15 Neither of the respondents have filed a written

16 answer to the complaint but discovery has taken

17 place and there's currently a motion for partial

18 summary

judgement filed on behalf of respondent,

19 L.L.C., pending before The Board on the issue of

20 whether the Saline County Board had jurisdiction to

21 consider the siting application.

22 The Board's procedural rules and the Environmental

23 Protection Act govern these proceedings. They provide

24 that members of the public shall be allowed to speak

25 or submit a written statement at hearing; however,

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1 any person offering testimony today shall be subject

2 to cross-examination by the attorneys present.

3 Additionally, any such statement offered by a

4 member of the public shall be relevant to this case

5 and to the issues currently before The Board. I

6 will call for any statements from members of the

7 public after the parties have presented their

8 evidence.

9 At this point I would like to see hands of any

10 members of the public who are present and who do

11 wish to make a statement today. If you could just

12 raise your hands. Okay. I note that no members of

13 the public that are present today have indicated

14 that they wish to make a statement on the record.

15 Of course that may change as the proceedings

16 progress today, as further members of the public may

17 attend, and I'll ask for this again at the close of

18 proceedings.

19 Finally, I want to caution everyone that a board

20 hearing is much the same as being in court and I

21 expect everyone to act appropriately and with proper

22 decorum.

23 I'll ask the parties to make appearances for the

24 record. Let's begin with the petitioner.

25 MR. BLEYER: Thank you. Madam Hearing

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1 Officer, and Counsel, my name is Ken

Bleyer, that's

2 spelled B, as in boy, l-e-y-e-r. My address is 608

3 South Park Avenue in

Herrin, Illinois, 62948. I

4 represent the petitioners, Beth

Finney and ECCO.

5 HEARING OFFICER JACKSON: Thank you,

6 Mr. Bleyer. Mr. Hedinger.

7 MR. HEDINGER: Thank you. Ms. Jackson,

8 Mr. Bleyer, my name is Steve

Hedinger and I

9 represent the respondent, Landfill L.L.C.

10 HEARING OFFICER JACKSON: And is there

11 anyone here present today on behalf of the Saline

12 County Board of Commissioners? Okay. I note for

13 the record that there appear to be no persons here

14 on behalf of Saline County Board of Commissioners.

15 Mr.

Bleyer, Mr. Hedinger, do we have any

16 preliminary matters?

17 MR. BLEYER: Yes, I think so, Ms. Jackson.

18 I have received a copy of a Motion In

Limine that

19 Mr. Hedinger has submitted to me this morning.

20 While I haven't had a chance to review every page of

21 it I think, in substance, what is the target of this

22 motion is to establish, on the record, stipulations

23 that have been reached over the past two weeks, and

24 I would be willing to recite, into the record, what

25 I believe those stipulations are and then if

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1 Mr. Hedinger is so inclined he can either add to

2 that or modify it in some way.

3 It is my understanding that over the course of

4 approximately one month of discovery, and some

5 disputes we've had along the way, we've more or less

6 narrowed the issues in this case and I believe, as I

7 understand those issues to be, those issues have --

8 are focused around Paragraph 9 of my petition and

9 deal with the allegations that have been made

10 against the proceedings during October of last year

11 and it is my understanding that pursuant to the

12 discovery proceedings that certain of those

13 allegations that I have made are no longer -- my

14 clients no longer wish to pursue those so I would

15 like to make clear, for the record, what those are.

16 First, the allegation dealing with an ex-

parte

17 communication. We, on behalf of the petitioners,

18 will identify that particular allegation will not be

19 pursued.

20 The allegation regarding the conflict of

21 interest with the county board member and the

22 applicant will also not be pursued from this point

23 forward.

24 We had given an answer in discovery that part of

25 our complaint was based upon the belief that the

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1 hearing officer had been paid by the applicant. We

2 learned in discovery that was not true. We will not

3 be pursuing that either.

4 In addition, we identified, as an objectionable

5 action below, that certain county officials working

6 as an arm of the Saline County Government testified

7 on behalf of the applicant in October of last year

8 and we made it clear, during discovery, that those

9 individuals are Danny January and Randy

Koester who

10 are members of the Egyptian Health Department. We

11 will not be attempting to produce any additional

12 evidence beyond what is in the record below to point

13 out what the basis of our allegations are. In other

14 words, we're not going to put any witnesses on

15 today, nor are we going to try to offer affidavits

16 during the public comment period or anything else

17 with respect to Danny January or Randy

Koester's

18 testimony. In other words, we intend to be bound by

19 the record below with that particular material and

20 the pursuit of that objectionable action.

21 We have also stated that the -- in discovery

22 that the written resolution of the county board

23 deciding the case was contradictory and we did -- we

24 made that conclusion based upon the fact that there

25 seems to be an

incongruency in the vote between the

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1 vote on the nine criteria and then an ultimate vote

2 that was taken on the site, the facility, and that,

3 for some reason, is nine to three in the former and

4 ten to two in the latter and we don't believe that

5 makes any sense. We think that points out a

6 confused county board, which has been one of our

7 arguments from the beginning, and we had told the

8 applicant and their attorney that we do not intend

9 to go beyond that particular issue in furtherance of

10 our objection having to do with the written

11 resolution being contradictory in nature. In other

12 words, we, of course, intend to be bound by the

13 record in that regard.

14 We have also indicated that -- in our discovery

15 responses that representatives of the applicant

16 presented technical information in support of this

17 proceeding and we identified to the applicant and

18 their attorney that that has to do with some

19 material that Mr.

Acree, who was one of the

20 witnesses in the proceedings below, presented during

21 the public comment period; and, of course, that is a

22 matter of record which we do not intend to pursue at

23 this time either.

24 Now, I believe that, in a nutshell, describes

25 what we have taken from Paragraph 9 of the petition

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1 and therefore the balance, as I understand it,

2 represents the matters that remain in dispute, the

3 balance of Paragraph 9. I believe that's my

4 understanding.

5 HEARING OFFICER JACKSON: Mr.

Hedinger,

6 I'll give you a chance to respond, but just so I'm

7 clear, the issues you made that you would no longer

8 pursue were all issues that were raised in Paragraph

9 9, Subparagraph C on the issue of whether the

10 application proceedings were fundamentally fair?

11 MR. BLEYER: Pardon me for just a moment.

12 No, no, that's not correct. There are -- there are

13 issues that stem from Paragraph 9C that we will

14 continue to pursue; however, we clarified, in

15 discovery, what the nature of those issues are and

16 we attempted in furtherance of interrogatories and

17 depositions to identify to the applicant and its

18 attorney precisely where we are going with those

19 issues but, no, we are not saying that there isn't

20 anything in 9C that we're not pursuing. I mean,

21 there are issues that we are pursuing, yes.

22 HEARING OFFICER JACKSON: And that's not

23 what I understood. I mean, I understood that there

24 still are remaining issues in Paragraph 9,

25 Subparagraph C that you intend to pursue?

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1 MR. BLEYER: Yeah.

2 HEARING OFFICER JACKSON: Some of them will

3 not be pursued?

4 MR. BLEYER: Yeah, some have been waived.

5 Particularly you might note in Paragraph 9C the

6 ex- parte communications and the presence of a

7 conflict of interest. We have clearly waived

8 those. We will not be pursuing those.

9 HEARING OFFICER JACKSON: Okay.

10 Mr. Hedinger.

11 MR. HEDINGER: Thank you. Mr.

Bleyer

12 mentioned a Motion In

Limine that I had given him a

13 copy of. Basically the Motion In

Limine was

14 intended to make a record of the stipulations that

15 he has just gone through so I will not be filing

16 that today, and I believe his stipulations that he

17 just recited comports with my understanding of what

18 we agreed to.

19 For the record, he did mention a gentleman named

20 Mr. Acree. That's A-c-r-e-e.

21 HEARING OFFICER JACKSON: Thank you. Is

22 that the only preliminary matter that we have

23 today?

24 MR. BLEYER: That's all I have.

25 MR. HEDINGER: That's all for me.

KEEFE REPORTING COMPANY

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1 HEARING OFFICER JACKSON: Okay.

2 Mr. Bleyer, will you be making an opening statement

3 today?

4 MR. BLEYER: No.

5 HEARING OFFICER JACKSON: Mr.

Hedinger, do

6 you wish to?

7 MR. HEDINGER: No, I will not either.

8 HEARING OFFICER JACKSON: Okay. Mr.

Bleyer,

9 your first witness.

10 MR. BLEYER: Why don't -- I would be

11 willing to accommodate Mr.

Koonce's attorney if

12 Mr. Hedinger and you are inclined to do so.

13 HEARING OFFICER JACKSON: Okay. I think

14 our discussions on this issue were off the record so

15 just so the record reflects what happened, we are

16 experiencing some inclement weather in this part of

17 the state and apparently the attorney for

18 Mr. Bleyer's first witness is caught up in some of

19 that weather but expects to be here shortly. If

20 neither attorney has an objection we'll take a short

21 break, go off the record and allow Mr.

Koonce's

22 attorney to be present for that questioning.

23 MR. HEDINGER: No objection.

24 MR. BLEYER: No objection.

25 HEARING OFFICER JACKSON: Okay. We'll go

KEEFE REPORTING COMPANY

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1 off the record then. Thank you.

2 (Whereupon a break was taken.)

3 HEARING OFFICER JACKSON: We can go back on

4 the record. After a brief pause of about 20, 25

5 minutes we're going to go back on the record. I

6 note that Mr. Chris

Osborn is here representing the

7 Illinois Central Railroad and he had asked to be

8 present for the testimony of Mr. R.L.

Koonce,

9 K-o-o-n-c-e. Okay. Mr.

Bleyer, you ready to call

10 your first witness?

11 MR. BLEYER: Yes, I'll call R.L.

Koonce.

12 HEARING OFFICER JACKSON: Mr.

Koonce, if

13 you'd come up here and please remain standing and

14 raise your right hand, the court reporter will swear

15 you in.

16 (Witness Sworn.)

17 DIRECT-EXAMINATION

18 BY MR. BLEYER:

19 Q. Would you state your name for the record,

20 please.

21 A. R.L.

Koonce.

22 Q. And where do you live, Mr.

Koonce?

23 A. At 677 South Township Line Road,

24 Thompsonville, Illinois.

25 Q. Where do you work, sir?

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1 A. Illinois Central Railroad at an office in

2 Benton, Illinois.

3 Q. What do you do for them?

4 A. I'm train master.

5 Q. How long have you been with them?

6 A. Been with them 39 years.

7 Q. All right. Mr.

Koonce, do you recall that

8 last week on the 4th of March I took your

9 deposition?

10 A. Yes, sir, I do.

11 Q. Have you had a chance to review that

12 deposition?

13 A. Yes, sir.

14 Q. Does that deposition accurately reflect

15 what you stated in response to questions put to you?

16 A. Yes, sir.

17 Q. Mr.

Koonce, do you know Wayne

Hemmerich?

18 A. I met Mr.

Hemmerich, yes.

19 Q. And when have you met him?

20 A. In October of '97 and March of '98.

21 Q. Okay. And during the interim between

22 October of 1997 and March of 1998 did you have the

23 occasion to be or see -- be with or see

24 Mr. Hemmerich?

25 A. No, sir.

KEEFE REPORTING COMPANY

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1 Q. Do you know what Mr.

Hemmerich's role in

2 these proceedings has been?

3 A. I understand Mr.

Hemmerich was affiliated

4 with Landfill L.L.C. I believe it is.

5 Q. Where did you get that belief from, sir?

6 A. From Mr.

Hemmerich.

7 Q. So you have no outside knowledge of what

8 Mr. Hemmerich's role may or may not be?

9 A. No, sir.

10 Q. Do you know Rick Lane?

11 A. Rick Lane? I don't believe so, no.

12 Q. Do you know Robert Wilson?

13 A. No, sir.

14 Q. Do you know John

Acree?

15 A. No, sir.

16 Q. All right. I'd like to ask you if you can

17 remember what you were doing on Friday, October 24,

18 1997?

19 A. On that particular day I was in my office

20 and I think that was the day I met with

21 Mr. Hemmerich for the first time.

22 Q. And what is the basis of your belief? In

23 other words, why do you believe you met Mr.

24 Hemmerich that day?

25 A. I wrote a letter and in my response to

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1 Mr. Hemmerich in the letter I quoted it that I had

2 met with him on the 24th, or talked to him on the

3 24th.

4 MR. BLEYER: Would the record please

5 reflect that I am showing the witness a copy of a

6 letter identified in this record as C1850 known as

7 Exhibit 52 in the proceedings in October and also

8 identified as Petitioner's Exhibit 1 in a deposition

9 taken last week. Q. Mr.

Koonce, would you look at

10 that for just a moment. Have you had a chance to

11 look at the document, sir?

12 A. Yes, sir, I have.

13 Q. Do you recognize it?

14 A. Yes, sir.

15 Q. And how?

16 A. It's a letter I wrote to Mr.

Hemmerich on

17 October 27, 1997 and signed by me as R.L.

Koonce,

18 Train Master, Illinois Central Railroad.

19 Q. Do you believe that's your signature?

20 A. Yes, sir, I do.

21 Q. Does it reference October 24th?

22 A. Yes.

23 Q. And what is the reference to October 24th?

24 A. It says "This is in response to your

25 inquiry of October 24, 1997".

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1 Q. Now, on October 24th did you meet with

2 Mr. Hemmerich or did you speak with him by phone?

3 A. I believe I spoke with him by phone and met

4 with him, I think, on October 27.

5 Q. Did he call you?

6 A. Yes, he did.

7 Q. Did he call you at work?

8 A. Yes.

9 Q. Why did he call you?

10 A. Mr.

Hemmerich had several questions

11 regarding the railroad on what we refer to as the

12 Eldorado district which runs between

Ferber off our

13 main line over to

Eldorado.

14 Q. When you say he had several questions, do

15 you mean by that that he just asked you questions or

16 did you, in return, offer replies?

17 A. Well, he asked questions and I offered

18 replies, yes.

19 Q. Did he do anything other than put questions

20 to you?

21 A. I don't understand what you mean.

22 Q. Was the substance of your conversation on

23 October 24th merely him asking questions and you

24 making replies or did he also provide you with

25 information about Landfill L.L.C.?

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1 A. He told me that there was a proposal to

2 build a landfill, yes.

3 Q. Did he tell you where it was?

4 A. Basically in -- off of

Macfarland Road I

5 believe it is.

6 Q. Do you know exactly where that is going to

7 be; in other words, where the landfill is to be

8 built, Mr.

Koonce?

9 A. Not precisely, no.

10 Q. Did you meet with him on October 27th?

11 A. Yes.

12 Q. Where?

13 A. At my office in Benton.

14 Q. Do you recall when?

15 A. I don't recall the exact time, no, sir.

16 Q. Who was present?

17 A. Mr.

Hemmerich and myself.

18 Q. What was the purpose of the meeting?

19 A. Mr.

Hemmerich again had some questions that

20 he wanted clarified and I provided them.

21 Q. Wasn't that the purpose of the meeting on

22 the 24th -- pardon me, the telephone conversation on

23 the 24th?

24 A. Basically, yes,

um-hum.

25 Q. What was the need for an additional

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1 contact?

2 A. Mr.

Hemmerich asked me if I would write him

3 a letter regarding this and he just came by the

4 office to ask the questions again and get a

5 clarification on them.

6 Q. Did he ask you that on the 24th or the

7 27th?

8 A. I don't recall if all of the questions were

9 asked on the 24th. I think some of them were, yes.

10 Q. What I'm asking you is did he ask you to

11 write a letter when he spoke to you on the phone on

12 the 24th or did he ask you to write the letter when

13 he saw you on the 27th?

14 A. I believe it was on the 27th.

15 Q. What did Mr.

Hemmerich show you when he

16 came to see you on the 27th?

17 A. He showed me a proposal of a map -- a map

18 of a track layout.

19 Q. What do you mean by that, a track layout?

20 A. Just where a track layout would be built

21 into the landfill.

22 HEARING OFFICER JACKSON: Excuse me, sir.

23 You mean a railroad track?

24 A. Yes.

25 HEARING OFFICER JACKSON: Okay. Thank

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1 you.

2 MR. BLEYER: Q. So, in other words, he

3 showed you a map that contained -- or proposed to

4 show where a railroad track would be built running

5 to the landfill?

6 A. He showed me what I understood to be a

7 proposal to build one. Possibly could be built,

8 yes.

9 Q. Okay. Well, explain to me why you say

10 proposed. Did the map show where the track was to

11 be constructed?

12 A. It showed the layout. It didn't show

13 exactly -- identify exactly where it would be built,

14 no. It was my understanding it would be built off

15 of the Illinois Central Railroad.

16 Q. Did he tell you it was merely proposed?

17 A. That was the understanding I had, yes.

18 Q. And where did you get that understanding?

19 A. From Mr.

Hemmerich.

20 Q. Now, in addition to showing you the map for

21 the proposed track, did he show you anything else?

22 A. No, I don't think so.

23 Q. Did he read any documents to you that day?

24 A. No, sir.

25 Q. Did he give any documents to you to read?

KEEFE REPORTING COMPANY

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1 A. No, sir.

2 Q. Have you ever seen Landfill

L.L.C.'s

3 application for siting?

4 A. No, I have not.

5 Q. Has anyone ever read any material out of

6 that application to you?

7 A. Not that I recall of, no.

8 Q. Is Mr.

Hemmerich the only person, to your

9 knowledge, associated with the landfill that has

10 spoken to you about a matter relative to the

11 landfill?

12 A. Yes, sir.

13 Q. The letter which is the exhibit that you

14 now have in your possession in front of you, Exhibit

15 Number 52 in the proceedings below, where was that

16 letter prepared?

17 A. At my office.

18 Q. And who prepared it?

19 A. I did.

20 Q. When did you prepare it?

21 A. On October 27, 1997.

22 Q. Why did you prepare it?

23 A. I prepared it in response to Mr.

Hemmerich.

24 Q. In response to his request?

25 A. In response to his request, yes.

KEEFE REPORTING COMPANY

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1 Q. Now, prior to being subpoenaed for your

2 deposition last week had you advised anyone with the

3 Illinois Central Gulf that you had written that

4 letter?

5 A. No, sir.

6 Q. Did you copy that letter to anyone at

7 Illinois Central Gulf?

8 A. No, sir.

9 Q. Did Mr.

Hemmerich tell you that your letter

10 would become an exhibit in the proceedings on

11 October 27th?

12 A. No, sir.

13 Q. Do you know where Landfill L.L.C. is going

14 to develop rail access?

15 A. From my understanding it would be some

16 place south of our main track running between

17 Galatia and what we consider

Ferber, called Ferber,

18 or west end.

19 Q. Between County Line Road and

Macfarland

20 Road, do you know where this spur is to be

21 constructed?

22 A. Not exactly, no, sir.

23 Q. Do you know how many cars, railroad cars

24 that is, Landfill L.L.C. will be bringing into and

25 out of the spur if it is constructed?

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BELLEVILLE, IL

1 A. No, sir, I don't.

2 Q. Do you know how much time will be required

3 to bring the cars to and from the spur?

4 A. No, sir.

5 Q. Do you know what the cars that Landfill

6 L.L.C. might use would be used for?

7 A. What the cars would be used for?

8 Q. In other words, what the content of the

9 cars would be.

10 A. No, sir.

11 Q. Now, isn't it true, Mr.

Koonce, that

12 because you don't know where the spur is you don't

13 know if the spur is going to cause blockages of

14 either the County Line Road or

Macfarland Road

15 without knowing the number of cars that Landfill

16 L.L.C. would have or where the spur will be located?

17 A. That's true.

18 Q. I have no further questions.

19 HEARING OFFICER JACKSON: Mr.

Hedinger.

20 MR. HEDINGER: Before proceeding with

21 cross-examination I would like to state, for the

22 record, an objection to the entirety of Mr.

Koonce's

23 testimony and ask that it be stricken on relevance

24 grounds. This pollution control facility siting

25 review hearing is based on the record developed

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BELLEVILLE, IL

1 below and my understanding of the statute and case

2 law is that at this stage of the proceedings the

3 only new evidence that can be developed has to

4 concern either jurisdictional issues or fundamental

5 fairness. It seemed to me the entirety of

6 Mr. Bleyer's questioning related to the merits of

7 the Illinois Central Railroad's role in the

8 underlying petition, the underlying application for

9 siting approval and the proper time to have

10 presented evidence on this issue would have been at

11 the local proceedings rather than at this proceeding

12 and on that basis I would move that the testimony be

13 stricken.

14 HEARING OFFICER JACKSON: Mr.

Bleyer, your

15 response.

16 MR. HEDINGER: Thank you, Madam Hearing

17 Officer. The testimony, of course, is relevant. It

18 is relevant because the document that Mr.

Koonce has

19 been testifying from here today was introduced into

20 the record at the proceedings below over my

21 objection without him being present at that time.

22 Those objections are well stated in the record.

23 Contrary to the applicant's representations on

24 October 27th by Mr. Wilson that I could have

25 subpoenaed Mr.

Koonce to come to the proceedings in

KEEFE REPORTING COMPANY

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1 the ensuing nights; that, of course, is not correct,

2 I could not have done that and I did not have those

3 powers and did not know the -- did not have the

4 opportunity to cross-examine Mr.

Koonce as this

5 particular document was presented. I believe that

6 that was -- it was a mistake to let that document in

7 in the first place because of the fact I couldn't

8 cross-examine him. It was a piece of hearsay that

9 should never have been part of the record.

10 It does go to the issues of fundamental fairness

11 because when you allow documents like that that have

12 such a pertinent purpose in those proceedings to be

13 put in the record, clearly, as a member representing

14 the members of the public, I have a right to come in

15 and cross-examine the originator of that document

16 and I did not have that chance, all I had to do

17 was -- the opportunity to do was to question

18 Mr. Hemmerich and I believe that some of the things

19 that Mr.

Hemmerich said on that night and some of

20 the things that Mr.

Koonce has testified here to

21 today do not jive, they do not correlate, and I

22 believe had I been given the chance to ask the

23 questions on October 27th it may have impacted on

24 the county board's decision as to the issue of the

25 traffic on the road and where the rail spur was

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 going to be and some other things that had been

2 highly contested throughout the previous three

3 nights so I believe his testimony is very relevant.

4 HEARING OFFICER JACKSON: Mr.

Hedinger.

5 MR. HEDINGER: Well, I have not much more

6 to add to what I said previously. I think there's

7 two issues here; one, the fact that what happened at

8 the hearings before the Saline County Board

9 Commissioners, and that stands as it is, and whether

10 or not Mr.

Koonce will help or hurt Mr.

Bleyer's

11 case I don't think is really relevant to the

12 question of whether there was a breach of

13 fundamental fairness in the way it was handled below

14 or in the right to now develop that testimony that

15 is relevant only to a substantive issue during these

16 proceedings. A substantive siting issue.

17 HEARING OFFICER JACKSON: Okay. My ruling

18 is I'll allow the testimony in and Mr.

Hedinger will

19 be allowed to cross-examine him.

20 As you both know, no additional evidence can be

21 submitted or considered by The Board on the issue of

22 the nine siting criteria. Those issues were already

23 determined by the Saline County Board of

24 Commissioners. I will allow this testimony in on

25 Mr. Bleyer's assertion that it does go to his

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 argument of fundamental fairness. Only on that

2 issue, not as to whether any of the nine siting

3 criteria were met. Evidence on that has already

4 been admitted and no further evidence is allowed on

5 those issues so for that limited purpose the

6 testimony is allowed.

7 Obviously if you feel this is an incorrect

8 ruling a motion to strike may be made later and it

9 can be taken up with The Board.

10 MR. HEDINGER: Thank you. So without

11 waiving that objection I will proceed with

12 cross-examination.

13 HEARING OFFICER JACKSON: Yes.

14 CROSS-EXAMIANTION

15 BY MR. HEDINGER:

16 Q. Mr.

Koonce, I'm Steve

Hedinger. We met the

17 other day during your deposition. When was the

18 first time that you had any contact with Mr.

Bleyer?

19 A. Last Wednesday in Benton.

20 Q. Okay. And what happened Wednesday in

21 Benton?

22 A. I gave a deposition to Mr.

Bleyer.

23 Q. Okay. And when was the first time prior to

24 Wednesday in Benton that you had heard Mr.

Bleyer's

25 name?

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 A. I received a subpoena the week before --

2 Q. Okay.

3 A. -- from Mr.

Bleyer's office.

4 Q. Okay. So just to make sure I understand,

5 between October 27, 1997, which is the date that you

6 met with Mr.

Hemmerich, and the date that you

7 received that subpoena, during that time interval

8 you had never heard from Mr.

Bleyer, correct?

9 A. That's true.

10 Q. During that time interval, that same time

11 interval between October 27th and the date of the

12 subpoena, had you heard from any of the following

13 individuals; Keith

Finney, John P. Murphy, or Pat

14 Murphy, Paul

Spicer or Beth Finney?

15 A. No, sir.

16 Q. Had you ever heard of an organization known

17 as the Environmentally Concerned Citizens

18 Organization?

19 A. Only on the subpoena that I received.

20 That's the first time I heard of them.

21 Q. Okay. Mr.

Koonce, are you aware of whether

22 or not there are any regulatory restrictions

23 governing the rights of any individual land owner to

24 create a rail spur to connect with the Illinois

25 Central Railroad's main line?

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 A. I'm not sure I understand your question.

2 Q. Okay. Well, if an individual, suppose a

3 landfill, wanted to build a landfill, could they

4 just do that or is there a regulatory proceeding or

5 regulatory scheme that they have to comply with?

6 MR. BLEYER: I want to show my objection.

7 I asked this witness nothing about regulations

8 involved with placing a spur or installing it. I

9 believe that's beyond the scope of the Direct. I

10 never asked him anything about that.

11 HEARING OFFICER JACKSON: I'm going to

12 allow the question. You inquired as to the

13 placement of a rail spur and I believe this is a

14 reasonable extension of that line of questioning so

15 I'll allow it.

16 MR. HEDINGER: I'm sorry, did we get an

17 answer yet? Q. Do you remember the question?

18 A. You would like to know if there are any

19 regulatory commissions that have to be -- have to

20 approve a rail spur?

21 Q. Yes.

22 A. Yes, there are.

23 Q. Okay. And, first, what's the basis of your

24 knowledge of those regulatory schemes?

25 A. I think it's pretty well common knowledge

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 in the railroad industry that --

2 Q. And how long have you been in the railroad

3 industry?

4 A. Thirty-nine years.

5 Q. Okay. Now, can you tell me, briefly,

6 what -- just a thumbnail sketch of what that

7 regulatory scheme might be before someone could just

8 attach a spur onto the main rail line.

9 A. We have to abide by FRA regulations,

10 Federal Railroad Association regulations that

11 determine specifications for rail spurs. We have

12 our own company engineering department that must

13 approve them. They must be approved by the

14 officials on the IC Railroad.

15 Q. Okay. Are there any state agencies

16 involved?

17 A. If there are public crossings or something

18 to that nature, yes.

19 Q. Okay. And what do you mean by public

20 crossings?

21 A. Public highway crossings that would be

22 built -- a spur being built across a road.

23 Q. Okay. What state agencies would have to be

24 contacted in that regard?

25 A. I think the Illinois Commerce Commission.

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 Q. Okay.

2 A. Department of Transportation.

3 Q. The Illinois Department of Transportation?

4 A. Illinois Department of Transportation.

5 Q. Okay. And just to bring it full circle

6 then, to make sure I understand, if a private land

7 owner, private business owner wanted to build a spur

8 that would cross a public roadway before joining up

9 with your main line, prior to doing so they would

10 have to go through a number of both federal and

11 state regulatory agencies as well as your own

12 internal audit; is that correct?

13 A. That would be correct, yes.

14 Q. Okay. Can you tell me, just in a nutshell,

15 what some of the things that the ICC or the

16 Department of Transportation would require prior to

17 granting approval to take a spur over a roadway.

18 MR. BLEYER: I'd like to show my objection

19 on this. This man doesn't work for the ICC or the

20 Illinois Department of Transportation, number one.

21 Number two, I know you granted a reasonable

22 extension in overruling my objection a moment ago

23 and I think this is going too far. Again, I did not

24 ask this man any of these questions. And, thirdly,

25 I'd like to point out that all of this seems to be

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 going to whether or not this railroad crossing is

2 going to be safe for the roadway. Now, this seems

3 to fly in face of what you just got through saying a

4 moment ago, that his testimony was limited to the

5 issue of fundamental fairness. It doesn't have

6 anything to do with the substance of whether or not

7 the railroad is going to impose an obligation or a

8 burden in some regard that would merit ruling one

9 way or another on the issue of traffic impact so for

10 all three reasons I object to any further questions

11 along this line.

12 HEARING OFFICER JACKSON: Mr.

Hedinger.

13 MR. HEDINGER: I think this is just an

14 extension of the questioning of Mr.

Bleyer. As I

15 understood, his argument was intended to show

16 prejudice on his client's behalf as a result of this

17 testimony that he wasn't able to cross-examine and

18 if that's the record we're developing then that's

19 the record I'm developing here and I think

20 Mr. Koonce's testimony -- he's 39 years in the

21 railroad industry. Certainly he would have some

22 idea of what some of the restrictions are on placing

23 a spur over a roadway, but if he doesn't know that

24 I'm sure he'll tell us that.

25 HEARING OFFICER JACKSON: With the

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 understanding that this testimony is being developed

2 solely for the purpose of arguments on the issue of

3 fundamental fairness I'll allow the testimony if

4 Mr. Koonce has personal knowledge of the

5 requirements that you're talking about. Mr.

Bleyer,

6 your objection is noted.

7 MR. HEDINGER: Q. Mr.

Koonce, do you

8 remember the question?

9 A. My general knowledge, with nothing

10 specific, would be that there's several Government

11 agencies that would have to be involved including

12 the Illinois Department of Transportation if it's a

13 crossing that would go across an Illinois state

14 highway. I'm sure it would be the Federal

15 Government if it went across an interstate highway

16 or a federal highway. Same thing would apply for a

17 county, if it went across a county highway, county

18 Government would be involved, and it would probably

19 be -- there would probably be studies of rail

20 traffic going across the crossing, there would be

21 studies made of the amount of traffic -- automobile

22 traffic going across the crossing. All these

23 studies and plans would be submitted and have to be

24 approved by some regulatory agency, depending on

25 where it's located. They would make the decision.

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 They would have the final say.

2 Q. Okay. Bear with me just a moment, please.

3 Sorry for the delay. Mr.

Koonce, just a couple

4 other questions here. Mr.

Bleyer asked you about

5 whether you had, at any time, shown a copy of your

6 October 27 letter to anyone else within the Illinois

7 Central Railroad Organization. Would that be

8 something that you would expect, as a result of your

9 job description duties, that you would be required

10 to do? In other words, would you expect that you

11 would have to show that to someone?

12 A. Not necessarily. This was in response to

13 questions that anyone could have answered of a

14 representative of the railroad and I would have

15 given.

16 Q. And who would you have given these answers

17 to? Is there only a certain class of people that

18 you would have answered or do you answer anyone who

19 comes in?

20 A. I would probably take into consideration

21 who asked the questions, yes.

22 Q. Okay. Well, if Mr.

Bleyer had contacted

23 you prior to that subpoena, is there anything that

24 you said here today that you would not have told

25 him?

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 A. Not that I can think of.

2 Q. Okay. I have no further questions.

3 HEARING OFFICER JACKSON: Mr.

Bleyer, any

4 Redirect?

5 REDIRECT-EXAMINATION

6 BY MR. BLEYER:

7 Q. Mr.

Koonce, what are the considerations

8 that you would take advisement from in determining

9 who you would write such a letter for?

10 A. If I understand what you're asking I would

11 take into consideration anyone who -- anyone who

12 came to my office or anyone who gave me a call and

13 asked for information that I could provide I would

14 take into consideration who they were, who they

15 represented. If I felt that the questions that I

16 provided would be public knowledge or not in any way

17 to harm the railroad I would probably take that into

18 consideration before I answered questions of this

19 nature. The questions that were answered -- or

20 asked are fairly simple questions.

21 Q. Well, did you know who Wayne

Hemmerich was

22 before he talked to you on the 24th?

23 A. I knew who Mr.

Hemmerich was -- who he

24 represented himself to be, yes, from what he told

25 me.

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 Q. Okay. But you didn't know him before that,

2 did you?

3 A. No, I did not.

4 Q. Okay. And then when you wrote the letter

5 for him on the 27th, your only knowledge of him had

6 been your phone call the Friday before?

7 A. That's correct.

8 Q. And until he called you on the 24th, you

9 didn't know who he represented either, did you?

10 A. No, sir, I didn't.

11 Q. And when you wrote the letter for him, the

12 only knowledge you had about who he represented was

13 what he had told you on the previous Friday; isn't

14 that correct?

15 A. That's true.

16 Q. I don't have anything further.

17 MR. HEDINGER: No

Recross.

18 HEARING OFFICER JACKSON: Okay. This

19 witness is here today pursuant to a Subpoena

Duces

20 Tecum. Is he released now? Any --

21 MR. HEDINGER: Mr.

Bleyer's subpoena.

22 MR. BLEYER: Well, I think I'd like to wait

23 until the proceedings are done. We're going to be

24 done here shortly so -- I don't anticipate recalling

25 him, no, but I want to wait until we're completely

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 done.

2 HEARING OFFICER JACKSON: Okay. Mr.

3 Koonce, you're free to step down and I'd ask that

4 you just remain in the courtroom for the remainder

5 of these proceedings. Thank you. Mr.

Bleyer, your

6 next witness.

7 MR. BLEYER: I have no further witnesses.

8 HEARING OFFICER JACKSON: Mr.

Hedinger, do

9 you have any witnesses?

10 MR. HEDINGER: Yes, we will call Mr. Keith

11 Finney.

12 HEARING OFFICER JACKSON: Mr.

Finney, come

13 forward, please. Please raise your right hand, the

14 court reporter will swear you in.

15 (Witness sworn.)

16 DIRECT-EXAMINATION

17 BY MR. HEDINGER:

18 Q. Please state and spell your name for the

19 record.

20 A. Keith

Finney, F- i-n-n-e-y.

21 Q. And Mr.

Finney, are you familiar with an

22 organization known as the Environmentally Concerned

23 Citizens Organization?

24 A. Yes.

25 Q. Okay. And are you affiliated with that

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 group?

2 A. Yes.

3 Q. Okay. Can you tell us, what is the nature

4 of that group, what is that group organized to do.

5 A. Trying to keep the landfill out of our

6 backyard.

7 Q. Okay. And can you tell me when that

8 organization was created approximately?

9 A. I think it was August of '97.

10 Q. August, 1997. And who are the members of

11 the organization at that time?

12 A. Same as they are now, me, my wife, Beth

13 Finney, Paul Spicer, Pat Murphy.

14 Q. Okay. And Pat Murphy is also known as John

15 P. Murphy; is that correct?

16 A. Yes.

17 Q. Have there ever been any members of the

18 organization other than the four of you?

19 A. No.

20 Q. Okay. And Mr.

Finney, you were present at

21 the time that the Saline County Board of

22 Commissioners voted on the application for approval

23 of the Landfill L.L.C. application, were you not?

24 A. Yes.

25 Q. And were other members of your organization

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 also present?

2 A. Pat Murphy, and I think Paul was there.

3 Q. Paul

Spicer?

4 A. Yes.

5 Q. Was Mr.

Bleyer there?

6 A. No.

7 Q. And at that time, Mr.

Finney, did either

8 you or Mr. Murphy or Mr.

Spicer raise or attempt to

9 raise any objection to the county commissioners

10 prior to their vote?

11 MR. BLEYER: Ms. Jackson, I want to show an

12 objection on this. Number one, I put on evidence

13 today having to do with an exhibit that was put into

14 evidence identified as Exhibit Number 52 at the

15 proceedings below. I don't know what any of this

16 has to do with that exhibit that went in. I don't

17 know what the constitution of ECCO or, for that

18 matter, the vote of the county board on December

19 18th of 1997 has got to do with that at all. That's

20 number one. Number two, I don't really know where

21 Counsel is leading with these questions. I don't

22 know what this has to do with this proceeding here

23 today. There is certainly no motion pending that

24 would substantiate an argument of any kind that ECCO

25 or its members or Ms.

Finney or Mr. Finney have

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 failed to do something that they should have done.

2 There's certainly no motion to that effect.

3 As you adequately pointed out at the beginning

4 of these proceedings, there's never been any answer

5 filed by the applicant to this petition to challenge

6 anything that we've said in our petition, or done,

7 so I object to questioning Mr.

Finney unless he

8 wants to ask him questions about what I've opened

9 the door on here today having to do with Exhibit

10 Number 52 and the fundamental fairness of allowing

11 that exhibit in over hearsay objections.

12 HEARING OFFICER JACKSON: Mr.

Hedinger, do

13 you have a response?

14 MR. HEDINGER: Sure. Mr.

Koonce testified

15 that he had never heard of those four individuals

16 but as far as I'm aware the record did not state who

17 those four individuals were and I think now we've

18 established that those are the four members of the

19 petitioner in this case, in this pollution board

20 proceeding, and I think that was a necessary loose

21 end I needed to tie up. And the County Board of

22 Commissioners board hearing I think just goes to the

23 issue of prejudice and what attempts were taken to

24 protect their rights during the proceedings, not

25 only for this issue that we're -- that Mr.

Bleyer

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 has presented evidence on but for the other

2 remaining issues that may still exist in this

3 petition and this was my last question so where it's

4 leading we will now see.

5 HEARING OFFICER JACKSON: Okay. I'm going

6 to allow the questioning. The evidence you put on

7 this morning does not limit Mr.

Hedinger in the

8 presentation of his case. The claims in your

9 petition open the door to his case so because this

10 line of questioning may offer further light on that

11 I'm going to allow the questioning. Objection is

12 overruled. You can answer.

13 MR. HEDINGER: Q. The question was, I

14 believe, whether during the vote of the Saline

15 County Board of Commissioners either you or any of

16 the other members of the Environmentally Concerned

17 Citizens Organization that were in attendance that

18 day objected or attempted to object to anything that

19 the Board of Commissioners was doing?

20 A. No.

21 Q. No further questions. Thank you.

22 HEARING OFFICER JACKSON: Mr.

Bleyer, any

23 Cross?

24 CROSS-EXAMINATION

25 BY MR. BLEYER:

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 Q. Were you offered a chance to make any

2 objections that day?

3 A. No one was.

4 Q. Okay. That's all I wanted to ask.

5 HEARING OFFICER JACKSON: Any Redirect,

6 Mr. Hedinger?

7 MR. HEDINGER: No.

8 HEARING OFFICER JACKSON: You may be

9 excused. Mr.

Hedinger, next witness.

10 MR. HEDINGER: Our last witness, I believe,

11 is Mr. Wayne

Hemmerich.

12 HEARING OFFICER JACKSON: Mr.

Hemmerich, if

13 you'd raise your right hand the court reporter will

14 swear you in.

15 (Witness sworn.)

16 DIRECT-EXAMINATION

17 BY MR. HEDINGER:

18 Q. Please state and spell your name for the

19 record.

20 A. Wayne

Hemmerich, H-e-m-m-e-r-

i-c-h.

21 Q. And Mr.

Hemmerich, are you related or

22 affiliated in any way with the respondent in this

23 proceeding, Landfill L.L.C.?

24 A. I work for Rick Lane who is a

co-owner of

25 Landfill L.L.C.

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 Q. And are you the same Wayne

Hemmerich that

2 testified on a number of occasions during the

3 proceedings before the Saline County Board of

4 Commissioners?

5 A. Yes, I was.

6 Q. In particular, Mr.

Hemmerich, are you the

7 same Wayne

Hemmerich that testified concerning

8 notices which were sent concerning -- sent and

9 otherwise disseminated concerning the proposed

10 application for the pollution control facility?

11 A. Yes, I was.

12 Q. And can you tell me, briefly, what the

13 notices were intended to do.

14 A. The notices which I -- which we mailed and

15 which were also, for the most part, hand delivered

16 were notifying the property owners in the area of

17 our intent to file a siting request with Saline

18 County.

19 Q. How did you determine who should be given

20 that notification?

21 A. I was --

22 MR. BLEYER: Ms. Jackson, I want to show my

23 objection on this. You've already ruled that he can

24 bring in additional material based on my petition,

25 and that's fine, but I'll adopt the objection he

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 made to my presenting Mr.

Koonce in these

2 proceedings and state to you that I don't believe

3 that it is appropriate, at this stage, to put a

4 representative of the applicant on to try to clean

5 up the record in relation to how he served notices.

6 Now, they were represented by an attorney at the

7 proceedings below. He's sitting right there with

8 him today, Robert Wilson. He asked him question

9 after question after question about notices that

10 were served, the means that they were served and

11 then he offered a lot of material into evidence that

12 was accepted by the hearing officer and a record has

13 been made on that point. Now, I have not presented

14 here today, or by way of my petition, anything in

15 furtherance of that and I think it is utterly

16 ridiculous for us to sit here and listen to the

17 applicant come in today and try to present

18 additional material in furtherance of this issue

19 having to do with whether or not proper service was

20 made, so I object. I think this exceeds the purpose

21 for this hearing and, like I said, I assumed the

22 same argument that Mr.

Hedinger just made, however,

23 in this particular case we're not talking about an

24 issue having to go to fundamental fairness, he's

25 testified about matters having to do with

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 jurisdiction so I believe it's inappropriate.

2 HEARING OFFICER JACKSON: Mr.

Hedinger.

3 MR. HEDINGER: Well, I believe jurisdiction

4 is one of those issues that additional evidence is

5 permitted during the board hearings, but even to the

6 extent there isn't there is a -- well, let me say

7 that. I don't believe that is the case. I believe

8 it is allowed during the Pollution Control Board

9 proceedings and I think there are numerous cases

10 where, particularly objectors, appear during these

11 proceedings and put on evidence that there wasn't

12 jurisdiction and certainly the inverse of that must

13 also be true, but I will say this, in addition to

14 that, Mr.

Bleyer has specifically raised the

15 jurisdictional issue in his petition. He has

16 clarified that issue in his interrogatory response

17 and I think we have it nailed down; however I have

18 not yet seen his response to our motion for summary

19 judgement and, frankly, this is just a little

20 clarification evidence to make sure that there are

21 no misunderstandings on a point related directly, I

22 believe, to the issue of these -- I think the

23 objection and response are taking longer than the

24 testimony would have.

25 HEARING OFFICER JACKSON: Okay. I do note

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 that lengthy testimony was given during the Saline

2 County Board of Commissioners hearing on this matter

3 so I would caution you not to just replicate what

4 was already done, what is already before The Board

5 in the record; however, the issue of jurisdiction

6 has been raised in the petitioner's complaint and

7 I'm going to allow some limited questioning on that

8 issue but --

9 MR. HEDINGER: I have two more questions.

10 I'm sorry, I don't know if we had an answer. Could

11 you read the last question back, please.

12 (Whereupon the question was read

13 back by the court reporter.)

14 A. I was given a list of property owners

15 around the proposed site, the property line site.

16 Q. Were John P. Murphy and Mr.

Guye on that

17 list?

18 A. Yes, they were.

19 Q. Can you tell me in what manner those two

20 individuals were served.

21 A. They were served by certified mail and also

22 in person.

23 Q. Can you tell us the circumstances

24 surrounding the personal service and how you know

25 that.

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 A. I notified them in person, myself.

2 Mr. Murphy, I found him on -- he was on his tractor

3 and I talked to him and Mr.

Guye was at his house.

4 Q. Do you recall what date that occurred?

5 A. June 24th.

6 Q. Okay.

7 HEARING OFFICER JACKSON: Excuse me. June

8 24th of 1997?

9 A. Yes.

10 MR. HEDINGER: No further questions.

11 HEARING OFFICER JACKSON: Mr.

Bleyer.

12 MR. BLEYER: I don't have any questions.

13 HEARING OFFICER JACKSON: Okay. The

14 witness is excused.

15 MR. HEDINGER: The L.L.C. has no further

16 witnesses.

17 HEARING OFFICER JACKSON: Any rebuttal,

18 Mr. Bleyer?

19 MR. BLEYER: No.

20 HEARING OFFICER JACKSON: Okay. As the

21 hearing officer I am required to make a statement as

22 to the credibility of the witnesses here today. The

23 statement is to be based on my legal

judgement and

24 experience. Accordingly, I hereby state that I

25 found the witnesses here today to be credible and

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 therefore credibility is not an issue in these board

2 proceedings.

3 As the attorneys know, an expedited transcript

4 has been requested and should be available within

5 three business days.

6 Before I continue, I forgot to ask, again, if

7 any members of the public who are present wish to

8 make statements on the record at this time. If so,

9 please indicate with a raised hand. Okay. There

10 being none I'll continue with the briefing

11 schedule.

12 As we discussed, I think during our

prehearing

13 conferences, the briefing schedule is going to be

14 somewhat tight due to the statutory decision

15 deadline in this case. The briefing schedule which

16 we previously discussed and which I'm prepared to

17 order on the record today would require the

18 petitioner's brief be filed by 5:00 p.m. Friday,

19 March 20, respondent's brief by Friday, March 27,

20 also 5:00 p.m., and petitioner's reply brief by 5:00

21 p.m. Thursday, April 2 and the record will close at

22 that time.

23 I ask both parties that if you need to Fax a

24 copy of your brief to get it to opposing counsel by

25 5:00 p.m. on the due date, that you do so. The

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 schedule is tight and they'll need every available

2 opportunity to get responses put together. Is this

3 briefing schedule acceptable, Mr.

Bleyer?

4 MR. BLEYER: Well, I guess it will have to

5 do.

6 HEARING OFFICER JACKSON: Mr.

Hedinger.

7 MR. HEDINGER: Let me just double check

8 here. Now, the service by Fax is being authorized.

9 Is filing by Fax also authorized?

10 HEARING OFFICER JACKSON: Service on

11 opposing counsel by Fax is being authorized. As for

12 copies coming into The Board, just file those by

13 First Class Mail.

14 MR. HEDINGER: Not that I anticipate any,

15 but we'll deal with it in advance, in the event we

16 have any motions that are directed toward yourself,

17 would those be authorized by Fax as well?

18 HEARING OFFICER JACKSON: Yes. At this

19 time any motions between now and the closing of the

20 record that need to be filed or that you believe

21 should be directed to the hearing officer, you are

22 authorized to file those by facsimile so they can be

23 resolved without disrupting the briefing schedule.

24 MR. HEDINGER: Okay. That works for me

25 then.

KEEFE REPORTING COMPANY

BELLEVILLE, IL

1 HEARING OFFICER JACKSON: All right. If

2 any members of the public wish to submit written

3 comments there will be a written comment period and

4 that will extend from today until the date the

5 record is closed which will be 5:00 p.m., April 2.

6 All written comments must be submitted to The

7 Board's Chicago office and written comments will be

8 available to counsel for both parties upon request

9 to the clerk's office. If anyone wishes to make

10 public comments I do have copies of The Board's

11 address that you can get from me after the hearing

12 is concluded.

13 As you know, there are already many public

14 comments that were submitted to the Saline County

15 Board of Commissioners and rest assured those are

16 part of the record that will be reviewed by The

17 Board. Unless we have any other unfinished

18 business, I'll conclude the hearing. Mr.

Bleyer?

19 MR. BLEYER: Nothing further.

20 HEARING OFFICER JACKSON: Mr.

Hedinger.

21 MR. HEDINGER: Nothing further.

22 HEARING OFFICER JACKSON: Okay. I note for

23 the record that it is about 10:32 Monday, March 9,

24 1998 and we stand adjourned. Thank you very much.

25 (Hearing Concluded.)

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