BEFORE THE POLLUTION CONTROL BOARD
    PEOPLE OF THE STATE )
    OF ILLINOIS, )
    )
    Petitioner, )
    )
    v. ) No. PCB 97-008
    )
    CANTON INDUSTRIAL CORPORATION,)
    )
    Respondent. )
    Illinois Pollution Control Board hearing taken on 3-12-97.
    I N D E X
    Questions by: Page:
    Mr. Davis .......................... 18
    Mr. Golightly ...................... 40
    Mr. Davis .......................... 56
    Mr. Golightly ...................... 63
    Mr. Davis .......................... 65
    Mr. Golightly ...................... 92
    Mr. Davis ......................... 114
    Mr. Golightly ..................... 123
    Mr. Golightly ..................... 129
    Mr. Davis ......................... 160
    Reporter: Angela K.
    Sievers, CSR - #084-004102
    BEFORE THE POLLUTION CONTROL BOARD
    PEOPLE OF THE STATE
    OF ILLINOIS,
    Petitioner,
    v. No. PCB 97-008
    CANTON INDUSTRIAL CORPORATION,
    Respondent.
    APPEARANCES:
    Hearing Officer: Michael L. Wallace
    For the People: Thomas Davis, Esq.
    Michelle M. Ryan, Esq.
    For Respondent: Michael
    Golightly, Esq.
    IT IS STIPULATED AND AGREED by and between counsel for Petitioner
    and counsel for Respondent that the hearing of witnesses may be taken

    for purposes pursuant to and in accordance with the provisions of the
    Illinois Code of Civil Procedure and Supreme Court Rules pertaining to
    such hearings, by and on behalf of both sides, on March 12, 1997, at the
    Illinois Pollution Control Board, Suite 402, 600 S. Second St.,
    Springfield, Illinois, before Angela K.
    Sievers, a Notary Public, that
    the issuance of notice is waived and that this hearing may be taken with
    the same force and effect as if all statutory requirements had been
    complied with.
    Witnesses produced, sworn and examined on behalf of both sides
    testified and deposed as follows:
    HEARING OFFICER: Pursuant to the direction of the Illinois
    Pollution Control Board, I now called docket PCB 97-8. This is the
    complaint of the People of the State of Illinois versus the Canton
    Industrial Corporation. This is an enforcement action under the
    Environmental Protection Act. May I have appearances for the record
    please. For the People?
    MR. DAVIS: My name is Thomas Davis, I'm chief of the Environmental
    Bureau for the Attorney General's Office.
    MS. RYAN: Michelle Ryan, I'm assistant counsel with the Illinois
    EPA.
    MR. GOLIGHTLY: My name is Michael
    Golightly, I'm appearing for the
    respondent. And for purposes of the record, I'll point out that Canton
    Industrial Corporation is now known as
    Cyber America Corporation and
    they are the same corporation. So if I refer back and forth, I'm trying
    to get use to the name change myself. But I am here for the respondent.
    HEARING OFFICER: It's now known as what?
    MR. GOLIGHTLY:
    Cyber America Corporation spelled C-Y-B-E-R,
    capital A-M-E-R-I-C-A, Corporation.
    HEARING OFFICER: All right. Let the record reflect there are no
    other appearances at today's hearing. I believe you're from the Journal
    Star, did you say? Let the record reflect we have a member of the
    public and the People have two witnesses and the Respondent has one
    witness present. All right. Any preliminary matters, Mr. Davis.
    MR. DAVIS: Thank you, Mr. Hearing Officer. The Respondent has
    offered for the record a pleading entitled Respondent's Offer and
    Compromise. While I do not take issue with the factual statements in
    this pleading, I would note that it does attempt to summarize some last
    minute settlement negotiations and I believe that such information is
    not admissible into the record or an enforcement case so therefore I
    would object.
    HEARING OFFICER: Mr.
    Golightly?
    MR. GOLIGHTLY: The intent obviously of the offer and compromise
    which is placed before the Board is the offer of the respondent at the
    time of this hearing that it can do in an effort to respond to the
    State's request for enforcement and payment of some fees related to the
    removal of the waste tires from Canton, Illinois. That is the purpose
    of it. If there's any part of it that goes simply beyond stating that
    offer, we simply would not encourage that upon the Board and certainly
    not try to make a factual argument. Simply the intent is to make an
    offer and settlement and compromise.
    HEARING OFFICER: All right, thank you. I am going to sustain Mr.
    Davis's objection to the settlement negotiation's issue. All right.
    Mr. Davis, do you wish to make an opening statement--I'm sorry, Mr.
    Golightly, did you have any preliminary matters?
    MR. GOLIGHTLY: No, Mr. Hearing Office, I did not.
    HEARING OFFICER: Opening statement, Mr. Davis?
    MR. DAVIS: Thank you, Mr. Wallace. On behalf of the People we
    have brought this case, I would note as background for the Board and as
    I expect the testimony to show that there has been and is still pending

    a prior Court action and it is necessary to touch upon this briefly in
    my opening to provide a context for the other evidence that does go more
    directly to the allegations in our cost recovery complaint that is the
    subject of today's hearing. The Canton Industrial Corporation facility
    in Canton, Illinois, Fulton County, received beginning in late 1992,
    hundreds of thousands of waste tires. This facility began as a
    permitted authorized facility by the Illinois EPA. There was in fact
    financial assurance established in February of 1993 through a trust
    agreement in the amount of $10,000. The facility soon in our view
    outstripped the level of its authorization, that is, it began
    accumulating many more tires than the state regulatory authorities had
    anticipated or had permitted. And in October of 1993, the problems, if
    you will, had risen to such a level that the Illinois EPA had asked
    formally for the Attorney General's office to take a legal action to
    enjoin additional accumulation of waste tires. On October 22, 1993 with
    the assistance of Fulton County State's Attorney Ed
    Danner, a complaint
    was filed by our office and an immediate injunction was obtained under
    section 43A of the Environmental Protection Act. Now I know the Board
    does not deal with these types of cases since it does not have equitable
    powers but under 43A, the Board is well aware that the statute allows
    for an ex parte injunction order if there is proof of a substantial
    endangerment of the public, health, or environment. That initial
    complaint in the court alleged that hundreds of thousands of waste tires
    had been improperly accumulated and stored and that there was a danger
    of fire either accidental or through perhaps the arson of some unknown
    third party and the Circuit Court in Fulton County granted that
    injunction. Now I will note from the outset, Canton Industrial
    Corporation attempted to be cooperative in the court proceeding and for
    the record, this case was entitled People of the State of Illinois
    versus Canton Industrial Corporation and other parties, Fulton County
    Circuit Court, 93-MR-45 I believe. In fact, an agreed order was issued
    in February of 1994 extending the initial injunction order. This agreed
    order prevented further tires from being brought on-site and it also
    required the proper management of the tires on-site until removal could
    be effectuated. This was followed up by an interim consent order on
    March 24, 1994. At the direction of the Court, the parties had
    discussions regarding a plan for the removal and it was this interim
    consent order that memorialized that plan. In executing this consent
    order, Canton Industrial Corporation agreed to remove 20,000 tires per
    month beginning I believe in May of that year and also Canton Industrial
    Corporation agreed to the deposit of $140,000 in an escrow account which
    was subject to forfeiture. The idea being that this escrow account
    would be a performance bond for the total removal plan. I would
    represent also that the evidence that we expect to present would show
    that in April of 1995, contempt proceedings were instituted in circuit
    court for the Canton Industrial Corporation's failure to comply with
    this interim consent order. And then at the end of May 1995, a contempt
    order was entered finding that CIC had failed to comply with the interim
    order and ordering the complete removal of all tires by the end of 1995.
    The contempt order required that the removal rate be at least 30,000
    tires per month. It continued the requirement for the $140,000 as
    performance bond and it set contempt sanctions of $14,000 in the event
    that the tires were not completely removed by the end of December of
    1995. Additionally, the Court allowed $600 attorney's fees to the
    Attorney General's office. During the summer of 1995, a couple of
    things occurred that are directly relevant to today's proceeding.
    First, the Court made it clear to the parties that it was very concerned
    about the potential of the catastrophic fire. The Board will hear
    evidence that this facility is located in the former International
    Harvester Manufacturing Plant, a facility that was built around the turn

    of the century, a huge plant right in the middle of Canton. The Board
    will also hear as to the manner in which the hundreds of thousands of
    waste tires were stored and so forth, pretty much the same evidence that
    the Court entertained in its proceedings. The Court made it very clear
    that it was concerned about the State's ability to proceed under the
    statutory authorization, that is, using State funds to do a cleanup
    action. I can represent to the Court that Mr.
    Purseglove will testify
    that the Illinois EPA took very seriously those statements of concern by
    the Court and on July 17, 1995, Director
    Gade signed what we called a
    section 55.3D notice directing Canton Industrial Corporation to remove
    the tires making findings of a threat to public health and so forth.
    That will be admitted into evidence we expect as People's Exhibit No. 5.
    That type of notice under the statute requires the respondent to
    respond, to come up with a plan, if any, to address the problem. And
    our evidence will show that on August 24, 1995, the Canton Industrial
    Corporation filed a response with the Illinois EPA and that this
    response obviously generated some discussion within the Illinois EPA as
    well as my office. Our evidence will show that the Illinois EPA
    rejected that plan, however, agreed in court during a hearing that was
    prompted by the respondent's motion for injunction to allow respondent
    to take whatever efforts it could during the
    pendency of the State-
    funded project. In fact, the Canton Industrial Corporation had
    attempted to obtain a Court order enjoining the Illinois EPA from
    proceeding with a State-funded cleanup. You will hear evidence that the
    Court denied that injunction request. September 29th of 1995 is when I
    believe a contract was executed with a contractor and on October 2,
    1995, the State-funded project began. It took until early March of the
    following year, 1996, until this project was completed. The proof that
    we need to establish under this title of the act in order to obtain an
    order from the Pollution Control Board regarding cost recovery I believe
    consists of the following. That is, that the Agency issued 55.3D notice
    upon adequate justification, and you will hear evidence regarding the
    inspections conducted prior to the project being commenced. Secondly,
    that the State in fact incurred costs in removing the tires. Those two
    elements of proof are necessary for us to obtain a cost recovery award.
    Furthermore, as we pleaded in our complaint, there is allowable under
    the statute punitive damages for an unreasonable failure on the
    respondent's part to perform the preventative or corrective actions
    identified in the notice. You will hear evidence regarding the response
    by the company and the Agency's rejection of that response and so forth.
    Under the statute, punitive damages are, and this would be 55.3H,
    punitive damages would consist of an amount at least equal to the actual
    costs expended. It is also allowable that that's the bottom of the
    range, that the range could go up to twice the amount. Now in this
    instance, we have actual costs incurred by the Agency of $326,124.09.
    So we are seeking in this action punitive damages in that amount. We
    are not seeking excessive punitive damages because of the already high
    amount of action expenditures but we are requesting the Board to
    consider punitive damages. In a nutshell that's our case. I can in my
    opening advise the Board that we do expect that there may be some
    dispute regarding the extent of actual costs but it is clear in the
    evidence that we
    uncontroverted that we have a situation where there
    were hundreds of thousands of waste tires improperly stored and
    accumulated that was posing a very serious threat to the City of Canton,
    its residents, their public health, and the environment. Thank you.
    HEARING OFFICER: Mr.
    Golightly.
    MR. GOLIGHTLY: Thank you. Pretty much like Mr. Davis has, I would
    like to go over some of the history of the situation so that the Board
    in reaching its decision can be fully informed on the basis upon which
    the respondent intended to take action and what it was it attempted to

    do. As it is evident by the fact that waste tires were involved, the
    respondent's initial efforts were to establish a waste tire recycling
    center plant in the Canton-Fulton County area. Its intent was to
    recycle waste tires within the State of Illinois and to benefit both the
    State and obviously to appropriate a profit center for itself, to be
    able to take what most people don't want and turn it into something
    people do want. The intent of that effort was to produce tire chips of
    1-inch size or smaller and contracts were found to obtain those before
    tires were ever brought onto the site. A great deal of effort was put
    in to try to arrange and be sure that this would be a project that could
    function as it was intended to by the corporate officers. As evidence
    by the fact we're here today, that effort failed. And while there may
    have been many issues that contributed to that failure, various degrees
    certainly are contingent today that the main reason for the result of
    that failure was the result of the equipment that was obtained by the
    company to produce those chips according to specifications, to take the
    tires and to reduce them down to the 1-inch size I was talking about.
    That dispute between the respondent and the supplier company has not
    been resolved. I will be asking the Board to take notice the fact that
    a suit has been filed, originally was filed in a different court, was
    dismissed there based upon jurisdiction that is now presently pending in
    Cook County in an effort to recover damages that have been caused to the
    respondent by that failure. I will also be presenting evidence that
    during that period of time that they attempted to begin this operation,
    the respondent invested and lost a substantial amount of money. I
    believe that the evidence we present will show that the operating
    statements for the respondent, the operation lost over a half a million
    dollars over the course of two years in attempting to establish and
    operate this and it's been a substantial amount of money after that in
    an effort to mitigate and to control the situation resulting from the
    accumulation of the waste tires. I will also point out at this time
    that prior to the entry of the injunction relief that the State was
    referring to, that prior to that time they received waste tires at the
    site. The site had seized and they had not been accepted since that
    time. There's been no additional accumulation once this matter was not
    able to operate on the basis upon which it was intended to do, that no
    additional tires have been moved onto the site. We would also argue
    that efforts to dispose of the waste tires cheaply were not successful.
    Trying to find other ways outside the original intent to recycle them 1-
    inch chips were not met and was unsuccessful and we offer that with open
    opposition. In our opinion from the Illinois Environmental Protection
    Agency Waste Tire Division, that in an effort to comply with the Court
    orders that Mr. Davis has informed the Board of, that there were
    problems getting truck permits to move tire around, there were various
    efforts to propose and get approvals for other methods or efforts to
    dispose of the tires in a more cost-effective method, none of which were
    approved. And that efforts were made even throughout the end to in fact
    based upon the communication received from contractors retained by the
    respondent to interfere with their ability to progress and to remove the
    waste tires as expeditiously as possible. It was also the respondent's
    position that the removal was excessively costly, it wasn't carefully
    controlled, and that the total amount that we have received is
    information from the State and I must submit there still exist in my
    mind some confusion to the exact amount that was removed by the State
    exceeds any estimate that I've heard of the amount of tires that exist
    on-site, both our estimates and those I have heard from the State prior
    to that time. We'll also present evidence that logs were kept at the
    site reflecting the entrance and the removal of waste tires by the State
    contractor that do not coincide with the reports that have been provided
    to us in the amount that has been billed to the State. And so we

    believe that there's certainly some questions there that have been
    raised for the respondent. We'll also point out that limited resources
    has restricted the ability for the Respondent to now fund the
    reimbursement of the State of any level. And the payment plans and the
    discounts based upon our concerns have limited us. The respondent is
    certainly not in the position to write a check for anything close to
    $326,124.09. We believe that there has not been any unreasonable action
    by the respondent in the case to justify the award of punitive damages,
    that the amount that is represented by the $326,000 represents for
    sufficient penalty for any failure to timely comply with the Court's
    orders or entered in the State court case premised upon the efforts of
    the respondent and the cooperation or lack thereof by the State and its
    agencies. I think that's all I have at this time.
    HEARING OFFICER: All right, thank you. Let's go off the record.
    (An off-the-record discussion was held)
    HEARING OFFICER: Back on the record. Let the record reflect we
    have two gentleman from I guess Canton has joined us. It's customary in
    a Board's procedure at the end of the hearing that if members of the
    public wish to make a statement for the record, the Board will accept
    that. So if you gentleman wish to say something at the conclusion of
    the hearing, let me know and we'll let you make a brief statement. All
    right. Mr. Davis, are you ready to proceed.
    MR. DAVIS: Yes, I am. We would call Eugene
    Figge.
    HEARING OFFICER: Mr.
    Figge, will you come up here and we'll use
    this as the witness chair.
    (Witness sworn)
    HEARING OFFICER: Speak clearly and loudly so the court reporter
    can hear you.
    D I R E C T E X A M I N A T I O N
    by Mr. Davis:
    Q. Sir, tell us your name and spell your last name?
    A. R. Eugene
    Figge, F-I-G-G-E.
    Q. Gene, by whom are you employed?
    A. The Illinois Environmental Protection Agency.
    Q. And how long have you worked there?
    A. Since January of 1990.
    Q. Can you summarize what type of job duties you do?
    A. I am a field inspector working in the used tire unit.
    Q. And what part of the state do you handle?
    A. The Peoria Region which consist of 14 counties including
    Fulton County.
    Q. Did you have any sort of environmental experience or
    background prior to working for the Illinois EPA?
    A. I went to work for the Agency right out of college and my
    degree's in biology with a special area of interest in environmental
    study.
    Q. And from which school did you graduate?
    A. Monmouth College.
    Q. Did you receive any specialized training regarding waste tire
    regulations?
    A. When I started with the Agency, I was in the used tire unit
    at that time. Then the new Part 848 regulations were being considered
    and I was involved in that.
    Q. Would it be fair to say, Gene, that you've been working in
    this program since its inception?
    A. Yes.
    Q. And to whom do you report?
    A. I report to John
    Tripses, the Peoria Regional manager, and
    Paul Purseglove, the used tire unit manager.

    Q. Let me direct your attention to a facility in Canton,
    Illinois. First of all, what county is that?
    A. Fulton.
    Q. And this is within your service area I take it?
    A. Correct.
    Q. Canton Industrial Corporation facility is located where?
    A. It is located basically right in the middle of downtown
    Canton in the old International Harvester building.
    Q. Can you describe the size of the facility and the types of
    structures in order to sort of paint a picture for the Pollution Control
    Board?
    A. Okay. The facility lays in basically a square. I would say
    it's approximately three blocks long on each side of the square. Inside
    the square consist of a number of brick buildings which have wooden
    supports as opposed to metal and also there is an
    aisleway between the
    buildings and then a large
    blacktopped area.
    Q. Okay. Now you've heard me describe it as a turn-of-the-
    century-type structure, would you agree with that?
    A. Yes.
    Q. When did you first have occasion in your duties to visit or
    inspect the CIC facility in Canton?
    A. My first inspection there was December 9, 1992.
    Q. Now you've heard me describe in my opening statement that at
    this point in time, the facility was permitted and had financial
    assurance or at least would have by February '93, are those things
    correct?
    A. Yes.
    Q. Let me direct your attention to some of your inspections that
    we've marked as exhibits. But first of all, would it be fair to say
    that you've inspected the facility many, many times?
    A. Yes.
    Q. Okay. Let's pick out April 17, 1995 and I'll show you what
    I've marked as People's Exhibit No. 1. First of all, is this your
    report of that inspection?
    A. Yes.
    Q. Can you describe generally what this report as well as most
    of your inspection reports consist of?
    A. Generally when I conduct an inspection, it consist of a
    checklist which summarizes any apparent violations and the address of
    the facility, site number, a narrative describing the conditions on-
    site, and a site sketch which shows the general layout of the facility,
    and photographs. The general location where photographs were taken are
    noted on the site sketch by arrows and then each arrow has a number by
    it which corresponds to the photograph.
    Q. Would it be fair to say, Gene, that this is what we call a
    compliance inspection?
    A. Yes.
    Q. Why don't you take a look at this to determine whether it's
    complete. First of all, it contains the components that you've
    generally described. And while you're doing that, let me ask, was this
    prepared in the normal course of the Agency's business?
    A. Actually this particular inspection was conducted to check
    compliance with the Court order in Fulton County Circuit Court which is
    number 93-MR-45. Also included in this report is a printout from Canton
    which outlines the status of the tire removal.
    Q. Okay. Now you've heard my opening statement regarding the
    court proceedings and so forth, did what I relate in my argument so to
    speak conform to your memory as accurate?
    A. Yes.

    Q. So would it be fair to say that you were also attempting to
    determine compliance with not only the regulations and the permit as you
    would with any facility but also the Court order?
    A. Correct.
    Q. Okay. And is this exhibit complete?
    A. Yes.
    Q. And was it conducted and prepared in the course of your
    business?
    A. Yes.
    Q. Is it your practice as a general matter and, of course, in
    this specific instance to prepare the report contemporaneously with the
    inspection, that is, as soon after as you are able to?
    A. Yes.
    Q. And where you have photographs is basically when you get the
    photographs back?
    A. Right.
    MR. DAVIS: Okay. We would move this exhibit, Mr. Hearing Officer,
    as a business record into the record at this point.
    HEARING OFFICER: Any objection?
    MR. GOLIGHTLY: If I can direct just two questions to Mr.
    Figge on
    voir dire to verify.
    HEARING OFFICER: All right.
    Q. (by Mr.
    Golightly) Mr. Figge, was a copy of this ever
    provided to the respondent?
    A. To the best of my knowledge, yes.
    Q. Do you know who that would have been delivered to, if it was?
    A. No, I do not.
    Q. Okay. Then based upon what you're saying, it was delivered
    to them?
    A. The standard practice of the Agency when I complete a report
    is that it's processed through headquarters and then headquarters
    conducts the appropriate mailings which always include a copy of the
    report.
    Q. So if a copy of this was sent to anyone, you didn't do that
    and it would have been handled out of the home office which would be
    here in Springfield?
    A. Correct.
    Q. So you don't personally know whether or not this was ever
    sent, that was just standard practice?
    A. No, I do not.
    Q. But you have satisfied yourself that this is a copy of the
    original report you produced?
    A. Yes.
    Q. And in fact is this the original report that we're actually
    submitting to the Board, Mr.
    Figge?
    A. It appears to be a copy of the original.
    Q. With original photographs--or copies of the original
    photographs?
    A. Yes.
    MR. GOLIGHTLY: On that basis, I won't object to it as being an
    original record as Mr.
    Figge testified.
    HEARING OFFICER: People's Exhibit No. 1 is admitted.
    Q. (by Mr. Davis) Eugene, As a practical matter with regard to
    this case, do you have to ask permission from somebody to get site
    access?
    A. If someone is present, I ask permission to get site access.
    And in the case of this particular inspection, I spoke with the security
    guard who went and got Mr.
    Hansen who granted permission to conduct an
    inspection.

    Q. And as a practical matter with regard to this case, do you
    always try to talk to Mr.
    Hansen to make contact, discuss progress, or
    lack of progress etc.
    etc?
    A. If he's present.
    Q. Getting back to Exhibit 1, the report of your April 17, 1995
    inspection, let me direct your attention to a series of photographs.
    Beginning with photograph number 5, and I'd ask that you quickly review
    photos 5 through 20. And first of all, do these photographs 5 through
    20 truly and accurately depict what you saw that day?
    A. Yes.
    Q. What do they show?
    A. Generally what photographs 5 through 20 show are the various
    locations around the facility where tires are stored. In many cases,
    the photographs are taken through an open door or a broken window and
    along the pathway which runs through the facility which I mentioned
    earlier. When you get to photograph number 11, those photos are taken
    actually inside of the building showing the accumulation of tires from
    an interior view. Basically so you can see more of them as opposed to
    looking simply through a door.
    Q. Okay. Can you tell us where the tires were mostly stored,
    that is, the majority of the tires?
    A. The majority of the tires in the facility if you refer to the
    site's sketch in my report, we're in the building to the northwest, when
    you come in the main entrance of the plant then you enter the plant from
    the north, so you'd be heading south.
    Q. Would this building be the closest to the downtown area of
    Canton?
    A. Yes.
    Q. And how close is it to the downtown area?
    A. I'd estimate six blocks.
    Q. You've also heard me indicate that we believe that hundreds
    of thousands of tires were on-site, how many tires in your estimation
    were there?
    A. I would say at least 500,000.
    Q. And how can you come up with that estimate?
    A. Where I developed my estimates from tires is from working on
    cleanup jobs. The measure I'd use is a 40 cubic yard roll-off box will
    hold roughly 400 car tires and I sort of tried to mentally take the
    dimensions of a 40-yard box and stack it into the facility like this and
    that's what I used to develop an estimate.
    Q. Can you estimate how large an area, that is, how much floor
    space this northwest building may have had?
    A. No, I cannot. It was very large.
    Q. Would it be fair to say that as depicted in the photos in
    this exhibit that the tires were stacked in more than one level?
    A. Yes, they were stacked to the rafters.
    Q. And what sort of height would that be generally?
    A. 25 feet.
    Q. Did you also have access to some company records that may
    have indicated the amount of tires being received during a certain time?
    A. It's not included in this report but while CIC was accepting
    tires, they are required by Part 848 to maintain daily tire records.
    Generally, CIC's records represent that there was an area of 300,000
    tires at the facility.
    Q. By the time of your April 17, 1995 inspection, to your
    knowledge was there a Court order in effect?
    A. Yes.
    Q. And as you've indicated, one of your purposes that day was to
    determine compliance with that Court order?
    A. Yes.

    Q. Can you tell us what sort of problems you observed on that
    issue?
    A. Basically what the Court order required as I outlined in my
    narrative was that CIC remove 20,000 tires a month commencing in May of
    1994 and deposit $140,000 in an escrow account. During my inspection, I
    discovered as per their records that they had not begun removing tires
    until August 12th of 1994. Mr.
    Hansen gave me that information, I
    penciled it in on the top of this form titled CIC Tire Cleanup Status.
    Q. Now within this Exhibit No. 1, that form appears directly
    after the site sketch?
    A. Correct.
    Q. Okay. On the basis of your inspection, did you later that
    spring in perhaps the month of May testify in Fulton County Circuit
    Court regarding your observation?
    A. Yes.
    Q. And to your knowledge, was a contempt order issued by the
    Judge?
    A. Yes, it was.
    Q. Did you have occasion, Gene, to inspect the facility later
    that summer?
    A. Yes.
    Q. Let me show you what we've marked as Exhibit No. 2, is this
    the report of your August 14th inspection in 1995?
    A. Yes, it is.
    Q. And does it appear to be complete?
    A. Yes.
    Q. With original photographs?
    A. Yes.
    Q. Was this inspection report generated in the normal course of
    your Agency's business regarding the compliance investigation?
    A. Yes.
    Q. And as in the case of all your inspection reports, was it
    prepared as soon as you could after that actual visit?
    A. Yes.
    Q. Let me direct your attention to photo number 8 and ask if
    this is also representative of the interior storage conditions?
    A. Yes, it is.
    Q. What does it show?
    A. It shows car and truck tires stacked to the rafters.
    Q. And does it show that truly and accurately, that is, is it a
    good photograph?
    A. Yes.
    MR. DAVIS: We would move into the record People's Number 2.
    MR. GOLIGHTLY: No objection, Mr. Wallace.
    HEARING OFFICER: People's Exhibit No. 2 is admitted into evidence.
    Q. (by Mr. Davis) Now I've represented that the contempt order
    had required a removal rate of 30,000 tires per month. First of all, is
    this accurate with your knowledge of the court proceedings?
    A. Yes.
    Q. And did you observe any removal activities ongoing on August
    14, 1995?
    A. At this time, CIC had proposed bailing tires and shipping
    them to Missouri to be casting concrete and used as building blocks for
    lack of a better description.
    Q. Let me interrupt you, Gene. Did this proposal arise during
    the court proceedings?
    A. Yes.
    Q. Okay. And did it later form the basis of the company's
    formal response to the Agency's removal notice?
    A. Yes.

    Q. Okay. Was one of your purposes then to re-evaluate the
    effectiveness of that plan?
    A. Correct.
    Q. To observe it in operation?
    A. Yes.
    Q. Can you in as comprehensive manner as you can tell us your
    understanding of what they exactly intended to do, how they intended to
    do it, and the end uses if you will of the bail tires?
    A. Okay. I actually have photographs of the bailing operations
    in this report, it would be photographs 1 through 6. Basically what the
    plan was, they had a hydraulic bailing apparatus which they would put
    tires in, they were then compressed, and metal strapping was used to
    secure the tires. And at the time of my inspection, I believe, let me
    look through my report, but I believe they were producing two bails an
    hour. The ultimate destination of these bails as I understood it at
    that time was they were to go to Hannibal, Missouri where they would be
    casting concrete and used to construct flood walls and like storage bins
    for aggregate material. The bailer was exceedingly slow. They get as I
    understand it approximately 75 truck tires in a bail or approximately,
    now this is not from my report, but if I recall correctly, 135 car
    tires, producing two bails an hour. We're talking 150 truck tires an
    hour or whatever 135 times 2 is, I can't do it in my head, around 270
    car tires in an hour. When you're talking about 500,000 tires, it'll
    take a long time to get them all out using that methodology.
    Q. And what was the Court deadline for removal of all tires in
    the Canton facility?
    A. By the end of the year.
    Q. 1995?
    A. Correct.
    Q. Now let me represent that we intend to have Mr.
    Purseglove
    address some of these issues but with that as background, are you aware
    that the State did fund a removal project and go ahead and perceive at
    that?
    A. Yes.
    Q. When did that begin?
    A. On October 2nd.
    Q. And did you have occasion over the course of the next several
    months to visit the facility to monitor the progress of the project?
    A. Part of my responsibility was monitoring the ongoing cleanup
    at the facility.
    Q. Okay. Let me back up and ask you, prior to the initiation of
    that project in October of 1995 and concurrently as well as prior to the
    Agency's issuance of the removal notice of July of 1995, did you have
    occasion to come to any conclusion or opinion based upon your
    observations and your expertise and so forth regarding any hazard posed
    by the tires of the Canton facility?
    A. If a fire started at the Canton facility at the time it was
    full of tires, there is no way it would be put out. The tires being
    inside a building make access extremely difficult not to mention you're
    talking about a building with wooden as opposed to metal supports which
    would burn. The curious thing about car tires is you cannot pour enough
    water on them to put them out. The only way you're going to stop the
    fire is move the tires that are not burning and with them in a building
    like they were, it becomes exceedingly difficult.
    Q. Can you assert--rather let me ask, do you have an opinion,
    yes or no, as to the degree of hazard?
    A. From the smoke --
    MR. GOLIGHTLY: I'm going to object, it's
    nonresponsive. You asked
    him to answer yes or no. Get that in the record and then he can fill it
    in.

    MR. DAVIS: I would concur with that objection, let me rephrase the
    question.
    Q. (by Mr. Davis) Gene, first of all, yes or no, do you have an
    opinion as to the level or degree of hazard?
    A. Yes.
    Q. Okay. What is that opinion and explain as fully as you can
    the basis you have for that opinion?
    A. When tires combust, you have basically two problems. One is
    the smoke which is quite noxious. The effect of the smoke depends on
    wind direction but in the case of the facility in downtown Canton, if a
    large tire fire developed, you'd probably have to do considerable
    evacuations in town. The second problem with tire fires is that when
    tires burn, they melt as much as burn and they give off oily sludgy
    runoff residue which has hazardous constituents. And in the case of
    this facility and most of that runoff would probably have gone into the
    storm sewers and overload sewage treatment systems, contaminate soil,
    things of that nature.
    Q. And as to the degree of hazard perhaps on a scale of 1 to 10,
    10 being the highest, could you pick a number that would be explainable?
    A. Yes.
    Q. Okay. What number would you pick and explain more fully if
    you need to?
    A. I would pick about an 8. The main reason behind that again
    being it's located right in the middle of a populated area. The other
    reason being sheer volume of tires. The third reason being the
    relatively small size of a village like Canton, they simply do not have
    the resources that a larger city would have to fight a fire at this
    magnitude.
    Q. Let me direct your attention please to Exhibit 3 for the
    People, would you agree that this is another inspection report?
    A. Yes.
    Q. Okay. Tell us when you inspected and the purposes that you
    hope to achieve in that inspection?
    A. This inspection report is done in memo form, was completed on
    March 7, 1996. Generally what I was doing at this day was verifying
    that in fact the cleanup was completed. What it includes, it's main
    part probably is a flow chart which I completed over the course of the
    cleanup generally documenting the status of the operation, number of
    laborers on-site, equipment, things of that nature.
    Q. And this would be the second page of Exhibit 3?
    A. Correct.
    Q. When you refer to workers, whose workers are you talking
    about?
    A. Our contractor was
    Tri-Rinse out of St. Louis, Missouri.
    They had individuals on-site who directly worked for
    Tri-Rinse and then
    they also retained laborers from the local community.
    Q. Would you agree that this report that is People's Exhibit 3
    differs from your previous reports in that it intends to summarize
    activity between October of '95 and March of '96?
    A. Yes.
    Q. And does it also contain photographs that truly and
    accurately depict what you observed on designated or specified dates in
    that time frame?
    A. Yes.
    Q. Let me direct your attention to photos 35, 39, and 40, and
    we'll take each of those in turn. First of all, does 35 accurately and
    truly depict those conditions?
    A. Yes.
    Q. What are those conditions?

    A. Basically, the tires in the building to the northwest of the
    property, which we spoke of earlier. On the west side of the building,
    they were closer to Canton, the streets in Canton, than they were to the
    alleyway through the facility. So with cooperation from the city, we
    essentially closed that street and set up operations outside. The tires
    from the west side of the building were moved over next to the street
    where we had one of the two shredders we used during this project setup.
    The tires were shred on the street and then the shreds from the tires
    were stockpiled on an adjacent parking lot which was city owned and from
    there, the trucking firm which handled the transportation of the tires
    loaded the shreds and transported them.
    Q. So what you've summarized is basically photos 36 and 7, would
    you agree?
    A. Yes. Actually the ones following show that the tires are
    being moved from the west side of the building to the street.
    Q. Okay. Let me ask you, however, regarding Exhibit 3, photo
    35, what exactly does that show?
    A. That shows tires which are stacked against the fence.
    Actually, I think we moved those tires there so they could be loaded
    into the shredder.
    Q. So these conditions were not created in your view by the
    company?
    A. No, they were not.
    Q. All right. But 36 and 7 show the Third Avenue part of the
    project that you just testified about?
    A. Yes.
    Q. Okay. Let me ask whether 39 and 40 truly and accurately
    depict what you saw on the designated dates?
    A. They do.
    Q. And for the record, this would be October 23, 95?
    A. Correct.
    Q. Are these rather representative of the storage conditions
    created by the company?
    A. Actually, it's a little better because it's after we started
    moving tires. So prior to the cleanup, there would be more tires in the
    area.
    Q. Do these photographs depict so to speak the logistical
    challenges faced by the contractor?
    A. Yes.
    Q. We would move--well let me ask as foundation, was this report
    generated as well in the normal course of your Agency's business
    contemporaneously with your final visit?
    A. Yes.
    MR. DAVIS: We would move the admission of People's Number 3.
    MR. GOLIGHTLY: No objection.
    HEARING OFFICER: People's Exhibit No. 3 is admitted.
    MR. DAVIS: We have no other questions at this time of this
    witness.
    HEARING OFFICER: Cross-examination?
    MR. GOLIGHTLY: Thank you.
    C R O S
    S E X A M I N A T I O N
    by Mr.
    Golightly:
    Q. Mr. Figge, first let's turn to People's Exhibit No. 1 and I'd
    like to refer to a couple of things you testified to with regard to
    those items. You on a couple of occasions referred to the number of
    tires that were present. Let's look specifically at photographs number
    11 and 12, page 6 I believe in the exhibit.
    A. Yes.

    Q. Okay. And it's your testimony you took those pictures on
    April the 17th and they truly and accurately reflect the condition of
    the tires at the time?
    A. Yes.
    Q. Did I further hear you testify that the tires are stacked to
    the rafters in this building?
    A. Yes.
    Q. Do you know what the height of the ceiling and rafters are in
    those pictures, do you have an estimate of that?
    A. I estimated earlier 25 feet but that's strictly an estimate.
    Q. Okay. So is it also your testimony then that these tires
    reflect--or that these pictures reflect tire piles that are 25 feet
    high?
    A. Not those pictures.
    Q. So those pictures aren't in the exhibit?
    A. Yes, they are.
    Q. So anything that would reflect tires actually piled to the
    rafters anywhere in the building are not included in the exhibits that
    have been presented?
    A. I believe there are photos in this exhibit which will show
    tires stacked to the rafters.
    Q. Would it be fair then--and if you can identify that for me,
    that would be fine--but can we characterize it then that there are
    places that it's your testimony that there are tires stacked 25 feet
    high?
    A. Yes.
    Q. Can you identify where that might be in any of the pictures
    in either Exhibits 1, 2, or 3.
    A. Okay. In Exhibit 1, picture number 14.
    Q. Okay, 14. Let me turn to that so I'm with you.
    A. If you will notice in roughly the center of the photograph,
    there is a column with appears to be a fuse box on it. If you look to
    the left of the column and to the rear of the picture, you can see where
    the pile of tires peaks and it appears from this photograph that it is
    at the rafters.
    Q. May I see the original photograph, the copies regrettably
    don't. Okay. Based upon your personal observation and memory of taking
    the picture, what would be the distance between the top of that pile and
    the roof there? Evidently the tires aren't actually touching the roof
    in these pictures, are they, or the rafter more precisely?
    A. I feel that they are.
    Q. Do you have any recollection of what the approximate height
    is of the fuse box that you referred to in photograph 14?
    A. Approximately my face.
    Q. And you're how tall?
    A. 5 foot 9.
    Q. So we're talking about approximately 5 foot 7. That the
    tires start at that point then I'm going to estimate at a depth of 1 or
    2 feet, and it is then that your testimony is to about 25 feet?
    A. Yes.
    Q. How many places are there and if there are other pictures,
    does the tire pile actually start at a low level and go to a point that
    it actually touches the rafters?
    A. In just this exhibit or all of them?
    Q. This is the only evidence I've got based upon what you've
    been presenting.
    A. I meant --
    Q. Either one of them. If you've got pictures that show that,
    I'd like to know how extensive we are talking about, that they actually
    went to the rafters.

    A. Okay. Again on Exhibit 1, photograph number 16, there is a
    small white structure to the left-hand side of the photograph. To the
    right, there is another column. To the right of the column if you look
    back further, there is a second column set further back in the picture.
    And if you can look at the peak of the tire pile, there is a metal, I
    refer to it as rafter for lack of a better description, and I would note
    that actually part of the tire accumulation obscures this metal object.
    Q. Thank you for handing me the exhibit. Is it your testimony
    then that the depth of the tire pile exceeds the white structure that's
    in front of the picture? From the picture, it appears it does not, I'm
    just asking if that's a point of reference that the tire pile doesn't
    exceed the height of that building or structure, whatever it maybe.
    A. From the picture, it appears not to.
    Q. Okay. So that again would be a place where tires do not
    reach the rafters. Even if we say that structure is 12 feet high,
    obviously all the piles in that area are less than that?
    A. Correct.
    Q. Okay. Do we have any other evidence that would substantiate
    your representation that tire piles routinely reached the rafters in
    this case?
    A. Photograph 17, immediately following the last one. If you
    refer back to the site sketch, it will show that photo 17 was taken just
    south of photograph number 16. So essentially I am standing next to the
    white structure at the time the photograph is taken. The white
    structure doesn't appear in the picture but I am right next to it taking
    the photograph, to the right of it.
    Q. So these are pictures that would be partially visible in
    photograph number 16, we've just gone farther south and we continued to
    take pictures?
    A. Yeah. Where the column is in photograph 16, I'm pretty much
    standing next to it.
    Q. Okay. So again these would be the same tires we discussed in
    16, all lower in height than the structure that's in picture 16?
    A. If you look to the right in photograph 17, there is a blue
    metal object which appears to be another rafter and the tires are
    stacked up to it.
    Q. In fact, the blue metal structure you're referring to appears
    to be behind them. Are you testifying that you know that those tires
    touched that structure?
    A. From the photograph, I cannot tell.
    Q. Okay. Is that it or do we need --
    A. Would you like me to look at Exhibit 2?
    Q. If you would like to review Exhibit 2 or 3 if you believe
    there are pictures that would reflect that.
    A. Photograph number 8, Exhibit 2, if you'll look dead center in
    the photograph, tires are again up to the metal objects which I'm
    calling rafters, that might not be entirely accurate.
    Q. Okay. Do you have any independent recollection of piles of
    tires other than what you've shown us in the photographs actually
    touching the roof structure in any of these buildings?
    A. Yes.
    Q. And other than what you've presented in the way of these
    photographs, if that exist, they are outside of these photographs and it
    is strictly from your memory?
    A. Yes.
    Q. What percentage of the tire piles then would have exhibited
    that characteristic of actually piled to the 20 or 25-foot ceiling?
    A. 70 percent.
    Q. 70 percent? Then these pictures don't fairly and accurately
    represent that because I'm going to disagree based upon these pictures

    and looking and saying 70 percent of these piles. I mean, they
    obviously all apparently start at some level. Even in the areas they go
    up, they build up to that level. Would that be a fair characterization?
    A. No.
    Q. So every place we've got tires stacked 25 feet high and you
    have to start pulling them out from that level?
    A. As you established earlier, there is a slope on a tire pile.
    When I am taking a photograph, I am obviously standing at the edge of
    the tire pile and unless I scaled the site of it, which wouldn't be very
    safe, and therefore it's going to appear due to the slope that a smaller
    percentage of the tire pile is in fact as high as it is. Because again
    you're talking about photographs taken strictly from the edge.
    Q. As I understand your testimony, the greatest danger these
    tires presented was one of fire; is that correct?
    A. Yes.
    Q. Because they were inside, they didn't present the dangers
    that may have been typical of waste tires of collecting water and other
    items; is that also correct?
    A. The disrepair of the roof of the facility was a concern for
    water accumulation but I feel it's a fire risk.
    Q. As far as your evaluation of the danger, I believe at one
    point you characterized it as an 8, is that primarily based upon the
    fire dangers you perceived?
    A. Yes.
    Q. Okay. In your inspections that you've presented into
    evidence, is the danger of fire discussed in either one of those?
    A. My inspections --
    Q. I understand you may have other problems, I'm just asking if
    it's mentioned in these?
    A. No.
    Q. Okay. Did you note in your inspections any particular fire
    hazard that was present at the site that could have created a fire at
    the site? I'll put it that way.
    A. Yes. If you'll refer specifically to the regulations Part
    848.202C, let me find it. It's for facilities with 500 or more tires,
    they must maintain a contingency plan. Again, that is a fire
    consideration. Separation from ignition sources by 250 feet. Again,
    that's a fire consideration. 848.202B has separation distances from the
    sides of the building. Again, that is a fire consideration. And I also
    have a concern about security of the facility which is addressed in the
    regulations and also there was previously a fire in the power plant at
    CIC which obviously is a concern.
    Q. Do you know when this fire took place?
    A. It's not included in these inspection reports but if I could
    go to my file, I could tell you the date.
    Q. Is it something you became aware of during the time the tires
    were present?
    A. Yes. Actually, I read about it in the paper.
    Q. Attached as part of Exhibit No. 2 is a copy of the July
    report for Canton Industrial Corporation which included the agreement
    for services with a corporation known as Echo Systems; is that correct?
    A. Correct.
    Q. Did you review that contract?
    A. Yes.
    Q. And did it provide for a procedure to remove the tires from
    the site in a timely fashion?
    A. I did not deem that it would accomplish removal in a timely
    fashion.
    Q. And that's based upon you actually going and observing the
    work progress as opposed to what's on the face of the contract?

    A. Correct.
    Q. And my question was, do you have an opinion as to whether or
    not the contract itself provided for the removal of the tires in a
    timely fashion?
    A. The contract did.
    Q. Okay. Do you have an opinion as to the feasibility of using
    those sort of bailed tires in concrete blocks for the purposes that were
    identified for you?
    A. Yes, I have an opinion.
    Q. And that opinion would be?
    A. That it's not feasible.
    Q. And that's based upon you've actually seen it tried and
    failed or you just have never seen it work to your knowledge?
    A. There were bails taken to Hannibal, several of the bails
    broke when they were unloaded. To my knowledge, no E-
    ko (phonetically)
    blocks were ever made in Hannibal.
    Q. Pardon me for interrupting if you're not finished yet but you
    appear to be addressing the specifics of this program, how it worked. I
    was asking the feasibility of doing these things, do you have any actual
    knowledge of whether or not this type of use of waste tires is feasible?
    A. Based upon research of a similar project?
    Q. If that's the basis of your opinion.
    A. I've never seen a similar project.
    Q. Okay. So you have no actual experience with any type of
    projects to this nature?
    A. No, I do not.
    Q. And you earlier testified your estimate of the number of
    tires located was 500,000; is that correct?
    A. Correct.
    Q. And that's consistent through your reports as reflected on
    Exhibits 1 and 2?
    A. Yes.
    Q. And so that I'm clear, does 500,000 refer to what I've heard
    referred to as PTE or passenger tire equivalent?
    A. It was basically an estimate. It was a guess of a number,
    the number of whole tires in the facility. How many pennies are in a
    jar.
    Q. Okay. So is there any distinction in that number between car
    tires, truck tires, or any other tires?
    A. No.
    Q. And do you have an opinion based upon your experience with
    the waste tire division of the number of pounds that 500,000 tires
    represents or tons, if that's easier for the way you do it.
    A. Take 25 pounds times 500,000.
    Q. Could we agree that that would work out to 12,500 pounds?
    A. An estimate, yes.
    HEARING OFFICER: I'm sorry?
    Q. (by Mr.
    Golightly) 12,500,000 pounds. And that would roughly
    translate into 6,250 tons of tires. 12,500,000 pounds divided by 2,000
    would result in 6,250.
    A. Assuming you punched the number in correctly.
    Q. If you'd like to do those number yourself, I invite you to do
    so.
    A. You want tons?
    Q. Appears to be the way ultimately.
    HEARING OFFICER: Go ahead, those numbers are correct.
    Q. (by Mr.
    Golightly) Were you the person responsible for the
    day-to-day--or was there anyone else responsible for the day-to-day
    supervision of the State contractor for the removal of these tires?

    A. I was primarily responsible but Paul
    Purseglove was also
    involved.
    Q. Then in Exhibit No. 3, there's a schedule that makes up the
    second page of that that has dates, personnel present, equipment
    present, actions taken, is that a result of your visits on those dates?
    A. Yes.
    Q. And are those all the visits that you made or are there ones
    when you did not write this information down?
    A. I believe there are some days omitted because essentially the
    same thing was happening as the previous day.
    Q. Okay. So your testimony, there are additional visits to
    those that are listed there?
    A. Maybe one or two but most of them are there.
    Q. This is by far the bulk of them?
    A. Yes.
    Q. So you don't have any knowledge of what went on necessarily
    then on a day-to-day basis, that was left in the hands of the State
    contractor?
    A. To some extent.
    Q. Okay. How long was the operation conducted on the outside of
    the plant, on the I believe it's Third Avenue?
    A. Okay. The big shredder was moved to Third Avenue October 25,
    1995. Prior to that time, they had in fact been moving tires over to
    accessible at that point. And I missed when the big shredder was moved
    back inside the facility. I missed when we reopened the street.
    Q. You don't know how long then they actually operated outside
    of the plant boundaries?
    A. I have an estimate.
    Q. Okay. Do you have--is that estimate somewhat close to moved
    outside on October the 25th and then that they moved back in sometime
    just after the first of November?
    A. Actually, I think it was more towards the latter part of
    November.
    Q. Okay.
    A. Are you talking about the shredder or hauling tires from
    outside?
    Q. Well, that they moved the shredder back into the plant so
    that any tires that were handled perhaps were moved to the shredder but
    then it was located back inside the plant.
    A. No. The tires that were brought to the shredder were shred.
    The shreds were accumulated on a parking lot owned by the City of
    Canton. Shreds were trucked from that parking lot after the shredder
    had in fact been moved because there was a stockpile.
    Q. Okay. So one of the things this contractor did was created a
    stockpile of shredded tires out on the public street?
    A. Correct.
    Q. Okay.
    A. Well, parking lot.
    Q. Parking lot, excuse me. And then those were later trucked
    inside the site for some purpose?
    A. No, they were never trucked inside of the site.
    Q. Okay. But you don't know what period of time that covers
    necessarily?
    A. Roughly from six weeks.
    Q. That they were trucking the shreds from outside the site on
    that side of the building?
    A. Yes.
    Q. Was there ever a punitive time when
    Tri-Rinse was not
    operating at all on this site?
    A. Yes.

    Q. And do you know the purpose for that cessation of operations?
    A. No, I do not.
    Q. Okay. I note that your report has a visit on 11/29/95 says
    no equipment in operations, actions, no work and that the next time that
    there's an indication here of what you did is 12/26 and you show that
    three men are there, is there a reason that you went almost a month for
    making such notations?
    A. It appears they did not work during that month.
    MR. GOLIGHTLY: No further questions.
    HEARING OFFICER: Re-direct?
    MR. DAVIS: Yes, thank you.
    R E - D I R E C T E X A M I N A T I O N
    by Mr. Davis:
    Q. Mr. Figge, counsel has raised issues that I did not touch on.
    I focused on fire hazard. Let me try to address some of those other
    issues. I believe you mentioned that there are operational requirements
    imposed by the regulation and that this regulation is section 848.202?
    A. Correct.
    Q. Let me hand you a copy of the regulations with that section
    opened and ask as a general matter does 848.202 impose requirements
    according to how many tires are being handled?
    A. Correct.
    Q. And is it an accumulative section, that is, all the
    requirements are at issue if you have a certain amount of tires?
    A. Correct. If you have over 10,000 tires they all apply.
    Q. Can we agree that at least 10,000 tires were on this site?
    A. Yes.
    Q. Go point by point, review the regulation if you would. When
    you come to a regulatory provision that you feel has been violated, I
    would ask that you first read that provision and then explain why you
    think it was violated.
    A. Okay.
    MR. GOLIGHTLY: Your Honor, we object going over anything that's
    already included in People's Exhibit 1 and 2 which would be his previous
    statements of what he found to be violations and are already in the
    record. I don't see any point of going back through this unless there's
    something more specific that you're seeking.
    MR. DAVIS: Well, my response would be I'm trying to address these
    matters generally without regard to specific inspections with the hope
    that it might be a more efficient inquiry. I'm open to any other
    suggestion but I believe the inquiry is pertinent. It's certainly
    something that was addressed on cross to a certain extent. Let me
    attempt to accommodate by withdrawing that inquiry and ask this. We
    focused on the inside, Gene, let's now focus on the outside. Did you
    observe any problems, that is, regulatory violations regarding tires on
    the outside of the buildings?
    A. Yes, I did.
    Q. Did any of these problems pose a threat to the public health
    or environment?
    A. Yes.
    Q. Tell us point by point what the problem is and how it posed a
    threat?
    A. Obviously tires outside are going to be accumulating water
    and as addressed under 848.202B4 and 5 and that specifically 4 says
    tires should be drained of water on the day of generation or receipt and
    5 says that within 14 days of the accumulation, they must be prevented
    from holding water. That's a concern for mosquito breeding,
    infector
    organisms. The tires outside were holding water.

    Q. Okay. Now as to the manner of storage of whole tires, would
    you agree that in many instances, tires were placed directly against the
    buildings?
    A. Yes, they were.
    Q. Is this a violation of any regulatory provision?
    A. Yes. 848.202E2 and that is essentially a regulation as far
    as the concern for fire goes. Burning tires up against the side of the
    building obviously is going to act as an
    accelerant for lack of a better
    term.
    Q. Let me show you Exhibit No. 1 and direct your attention to
    photograph number 19, does this truly and accurately depict the place
    where the tires were against the building?
    A. In that particular area, it does.
    Q. And what is the extent of that area from the foreground of
    the photo to the background?
    A. Approximately 100 feet long and if you look at the tire pile,
    I'd say 10 foot wide and the center of it is probably hit high to me.
    Q. And as to photo 20, first of all, does it truly and
    accurately depict what you saw that day?
    A. Yes, it does.
    Q. And what does it show?
    A. That is a large door on the building where semis at one time
    had been backed into a loading dock area which is now covered and the
    tires are spilling out of the door and stacked directly against the side
    of the building.
    Q. Would these conditions pose the threat of a fire that might
    start outside going into the building?
    A. Yes, they would.
    Q. Did you observe on the outside of these buildings any other
    violations or public health or environmental threats?
    A. Concerning the storage of the whole tires?
    Q. Focusing for the moment on whole tires.
    A. Since the regulation that you said earlier are accumulative,
    you go into section 848.202C and part of that is Part 3, 848--wrong one,
    sorry, let me find the right number here. There it is, 848.202C5. And
    that is separation distance from buildings, aisle space requirements,
    things of that nature essentially increase with the larger tire storage
    unit. Since we pretty much agree that there are more than 500 tires
    here, the tires would have to be separated more than 25 feet from the
    building according to the dimensions of the tire storage unit and there
    is a table included in the regulations there.
    Q. Are there tire storage unit height requirements or
    prohibitions if you will?
    A. Yes. Also in 848.202C along with the rough dimensions of the
    tire storage unit and the appropriate separation distance, there is a
    limit on how big a tire storage unit can be under 848.202C4, which
    basically says it can be no more than 20 feet high by 250 feet wide by
    250 feet long.
    Q. And did you observe a violation indoors or outdoors of this
    requirement?
    A. I have to look at the reports, I don't believe I actually
    cited that one. Let me check. I did not cite that one.
    Q. Okay. And finally with regard to whole tires, were there any
    other serious problems indoors or out?
    A. Obviously, the condition of the roof.
    Q. I think you've touched on that in cross. Now let's shift our
    focus to the shredded material. First of all, was there any?
    A. Yes.
    Q. Was it of the proper sizes?
    A. No.

    Q. And can you tell us where it was and how much of it there
    was?
    A. It is actually noted on my site sketch in the exhibits.
    Q. Let's look at Exhibit 1 from April of '95.
    A. It is noted pile of tire chips to the southeast side of the
    plant directly at the end of the corridor, driveway, whatever you want
    to call it that runs through the facility?
    Q. Outside?
    A. Outside.
    Q. Did this situation impose any public health or environmental
    threats?
    A. The material's not going to hold water because it's shred but
    it will burn a lot better than a whole tire because it's more compacted
    and so forth.
    Q. And finally, did you ever observe any mosquitoes or other
    infectors that are a source of concern under the regulations?
    A. I did not ever sample for mosquitoes myself, however, I am
    aware that the Illinois Department of Public Health did some sampling.
    Q. And would it be fair to say that the primary concern was
    basically just the fire hazard?
    A. Yes.
    Q. And that it was severe?
    A. Yes.
    MR. DAVIS: Okay. Thank you, sir, I have no other questions.
    HEARING OFFICER: Re-cross?
    R E - C R O S
    S E X A M I N A T I O N
    by Mr.
    Golightly:
    Q. Just one or two questions. If there are tires outside, can
    you use insecticides to treat them, is that an acceptable way to control
    the infector problem?
    A. There are provisions.
    Q. Are you aware that any effort was made by the respondent to
    treat the tires with insecticides?
    A. They were treated one time I believe.
    Q. So you're aware of at least one time?
    A. Yes.
    MR. GOLIGHTLY: I have no further questions.
    HEARING OFFICER: Mr.
    Figge, you had a couple of spellings. There
    was a Tripses, John Tripses or something, could you spell that please?
    THE WITNESS: T-R-I-P-S-E-S.
    HEARING OFFICER: And then the construction company
    Tri-Rinse?
    THE WITNESS: T-R-I, hyphen, R-I-N-S-E.
    HEARING OFFICER: And from the
    Tri-Rinse contractor, where were the
    shredded tires transported?
    THE WITNESS: They were transported to several places actually.
    Part of the tires went to Union Electric and also part of the tires went
    to Tri-Rinse's home base where they could process them further and I
    believe those wound up at Union Electric, too. And I also think some
    went to ADM.
    HEARING OFFICER: All right. And photos in Exhibit 2 where you
    were talking about the bails.
    THE WITNESS: Yeah.
    HEARING OFFICER: Looking at photograph number 1, are those the
    bails you were talking about?
    THE WITNESS: Part of them.
    HEARING OFFICER: All right. In the foreground or the middle
    ground of the photo, that's a complete bail?
    THE WITNESS: Yes.
    HEARING OFFICER: Now how many tires did you say were in that bail?

    THE WITNESS: In the case of truck tires, I believe they had 75.
    It's tough to tell from the photos because some of them get smashed
    really small so I might be overestimating.
    HEARING OFFICER: You turned to photo number 4, each banded set of
    tires is what you've described as a bail?
    THE WITNESS: Yes.
    HEARING OFFICER: All right. And those bails were approximately 8,
    10 feet long or longer?
    THE WITNESS: I'd say 8 feet long.
    HEARING OFFICER: All right. Thank you, Mr.
    Figge, you may step
    down.
    MR. DAVIS: We would call Paul
    Purseglove.
    (Witness sworn)
    HEARING OFFICER: Thank you, you may proceed.
    D I R E C T E X A M I N A T I O N
    by Mr. Davis:
    Q. Thank you. Sir, your name and the spelling of your last
    name.
    A. Paul Purseglove, P-U-R-S-E-G-L-O-V-E.
    Q. And by whom are you employed?
    A. Illinois Environmental Protection Agency Bureau of Land.
    Q. Since when?
    A. I've worked at the EPA for 16 years.
    Q. And focusing on your current assignment, first of all, what
    is it and how long have you been in that position?
    A. I am currently the manager of the used tire unit, I have been
    so for seven years.
    Q. Now we understand that under the Environmental Protection
    Act, there is a State fund that receives revenues from the sale of new
    tires; is this correct?
    A. That's correct.
    Q. Can you explain a little bit about the funding and the type
    of program that you've managed and its objectives?
    A. Our program can be described perhaps as really two ways or in
    two main efforts. First, in the traditional sense of the EPA, we
    regulate the generators, the transporters, processors, and end users of
    scrap tires. The other half of our program is that of a cleanup program
    where we clean up tire dumps around the state.
    Q. Focusing on that cleanup component of your program, Paul, let
    me ask if first of all you're familiar with the Canton Industrial
    Corporation facility in Canton, Illinois?
    A. Yes, I am.
    Q. When did you first become directly involved in that
    situation?
    A. I met with Mr. Alan
    Hansen probably in 1992 when he first
    came to the state and expressed interest in starting a tire recycling
    business.
    Q. Now I've stated in my opening statement that at the initial
    part of the time period we're concerned with, the Canton Industrial
    Corporation was permitted and authorized to operate; is this accurate?
    A. That's correct.
    Q. To what extent were they permitted to operate?
    A. They had registered as a storage and processing facility.
    Their plans included several things that perhaps the most important to
    us was a facility where tires could be brought in, usable tires could be
    recycled as recapped truck tires, perhaps strap tires would be shredded,
    processed into a tire drive fuel which would then be marketed to at that
    time an unknown third party who would use it as a supplemental fuel for
    their power plant. The use of tires as supplemental fuel is widely
    spread across the country and the world.

    Q. And in fact under the statutes at issue, is it part of the
    Agency's mission to encourage these private efforts?
    A. Absolutely.
    Q. And did you attempt to do that in the case of Canton
    Industrial Corporation?
    A. Absolutely. My responsibility is to manage the 12 million
    tires that are generated in the state and find markets for those tires
    as well as clean up the millions of tires that have been dumped across
    the state.
    Q. Now I mentioned the State fund, can you touch on that very
    briefly about how that works, how the expenditures are made, who gets
    hired, on what basis, and how money is obtained for reimbursement.
    A. Yes. The legislature established a program to fund the tire
    program specifically. And in Illinois when a tire is sold at retail, a
    $1 user fee is charged. That user fee is deposited into the used tire
    management fund. The first 2 million dollars of proceeds into that fund
    are distributed among four or five agencies. After 2 million dollars,
    it is split primarily between EPA for our regulatory and cleanup program
    and the other split goes to the Department of Commerce and Community
    Affairs which does grants and loan programs for stimulating markets for
    used tires.
    Q. Does this fund provide a source of funding for State
    cleanups?
    A. Yes. The total fund receipts are 6 to 7 million dollars a
    year.
    Q. And do you manage these State cleanups?
    A. Yes, I do.
    Q. In the case of Canton Industrial, we're going to be focusing
    on that later in your testimony but as a general matter, how do you
    choose contractors and on what basis do you allow those contracts?
    A. The State procures contractors. We request proposals. We
    solicit bids for cleanup contractors. We have done that several times
    in the course of my employment there. We currently have a handful of
    contractors on retainer. We task cleanup jobs based on a number of
    factors, cost and ability to perform and ultimate use of the material.
    Q. And where do the tires go once the State contractor, as a
    general matter once again, becomes involved?
    A. It depends on the location of the site and transportation is
    certainly a big portion of any of these cleanup costs. We look to
    minimize the cost as best we can. It is fair to say that most of the
    material that comes from our cleanups has historically gone to Archer
    Daniels Midland in Decatur which uses it as a supplemental fuel.
    Q. Let's drop that inquiry for a moment and return more
    specifically regarding Canton Industrial. Getting back to your direct
    involvement with this facility, were you also involved in the various
    court proceedings that we've had?
    A. Yes, I was.
    Q. And for the record, is it true to your knowledge that an
    immediate injunction was entered in October of 1993?
    A. Yes.
    Q. Was this at the request of the Illinois EPA?
    A. Yes.
    Q. And on what basis was this request made?
    A. It became apparent by October or actually even a little
    sooner than that that CIC did not have a market for their materials.
    They had no equipment on-site to process the tires. They had a shredder
    which was subsequently removed and however up until then, even tires
    continued to come onto the property and it got to the point where so
    many tires had been received that they were even spilling out of the
    buildings and being stacked outside. These buildings are virtually

    acres under roof and the buildings had been filled almost to the maximum
    capacity and the tires were spilling out into the open.
    Q. We should make it clear that you've been to the Canton
    facility several times?
    A. Yes.
    Q. Getting back to the receipt of tires by CIC, do you have any
    knowledge under what terms this occurred?
    A. CIC had contracted with a number of people who were either
    commercially hauling tires or who themselves were generating tires and I
    should say that in my opinion, they were offering tire disposal at a low
    market cost and that's not at all uncommon for new companies to try to
    undercut cost to acquire market share.
    Q. Well basically CIC was being paid to receive tires?
    A. CIC was paid to receive tires.
    Q. When a new tire is sold to a consumer, who imposes the $1 fee
    that you mentioned?
    A. The retailer must collect it from the purchaser.
    Q. Is the retailer required to take the used tire that the new
    tire replaces?
    A. Right. The law requires you as a retailer accept used tires
    in exchange for the purchase of a new one.
    Q. And in Canton Industrial's situation as I understand your
    testimony thus far, there was some relationship with numerous retailers
    as well as other people?
    A. Virtually hundreds of retailers and dozen transporters had
    business arrangements, perhaps contracts, where they could use the
    services of CIC to dispose of their tires.
    Q. Now within the Agency files that I've reviewed and been
    provided copies of, I've seen customer lists, have you seen those lists?
    A. Yes, I have.
    Q. And is that part of the basis for your testimony in this
    issue?
    A. Yes, it is.
    Q. Okay. We've also heard the estimation of approximately
    500,000 tires being on-site during 1993, 1994, 1995. Do you agree with
    this estimation?
    A. Yes, I do.
    Q. Getting back to the court proceedings, would you also agree
    that you were involved with the company and its representatives in
    attempting to come up with a Court sanction plan for removal?
    A. Yes.
    Q. And that this as a general matter would have required a
    certain amount of tires to be removed on a per month basis?
    A. Yes.
    Q. Would it be fair to say, Paul, that the company didn't remove
    some tires during the Court's sanction plan?
    A. I don't think that any tires were ever removed by CIC prior
    to the Agency starting the cleanup.
    Q. Okay. And would you agree that the Circuit Court of Fulton
    County did enter a contempt order at one point in time?
    A. Yes.
    Q. Let's now focus on that point in time, being May and the
    summer of 1995. Did you attend the court hearing in which Judge
    Wilhelm
    stated his concerns regarding the fire hazard?
    A. Yes, I was.
    Q. Were you in attendance during that proceeding when the chief
    of the Canton Fire Department testified?
    A. Yes, I was.

    Q. Without getting into any specifics because that would be
    hearsay, would it be fair to say that the chief of the fire department
    expressed concerns regarding the fire hazard?
    A. Yes.
    Q. And that the Court apparently took this into consideration?
    A. Yes.
    Q. Did you yourself provide testimony regarding the fire hazard?
    A. I don't recall.
    Q. Okay. Did the Court express an interest in the State of
    Illinois coming to the rescue so to speak?
    A. Yes. Through the proceedings, the Court became aware of the
    Agency's authority and programs to clean up these tires and to order the
    cleanup. And if that order is not followed and the State can effect the
    removal itself, the Court stressed very strongly that the Agency use its
    authority and order this cleanup.
    Q. The Court did not order the EPA to do a cleanup?
    A. In so many words he did not order us to do it. He stressed
    very strongly that if the State had all this authority then it ought to
    use it to get this cleanup done.
    Q. And did the State perceive with that?
    A. Yes, we did.
    Q. What involvement if any did you have in the issuance of what
    we called the section 55.3D notice?
    A. I'm responsible for that.
    Q. And let me hand you Exhibit No. 4 for the People, is this a
    copy of the notice that was issued by the Agency?
    A. Yes, it is.
    Q. And is it an accurate and complete copy?
    A. Yes.
    Q. Signed by whom?
    A. Our director, Mary
    Gade.
    Q. And did you have occasion to brief her directly or indirectly
    on this case?
    A. My briefs go to the Bureau chief and the Bureau people in the
    divisional land.
    Q. Is it your understanding, Paul, that on the basis of the
    input and recommendations, that you and your program provided that the
    director of the EPA issue this notice?
    A. Yes.
    Q. The notice refers, and I'll be specific here, page 2 section
    3 statement E under the findings of fact and I'll read it. The Agency
    finds that this storage of used and/or waste tires poses a threat to the
    environment, quote, unquote. Do you know what the basis for this
    finding of fact by the director would be?
    A. Yes.
    Q. And can you briefly explain in your own view having heard the
    testimony of Gene
    Figge and previous testimony in other forms?
    A. The primary concern here is that of fire. If the fire would
    commence in a pile or in a location such as CIC where there inside
    buildings have inadequate fire lanes, we would have a catastrophic
    situation. Parts of the city would probably need to be evacuated there.
    The runoff from the fire would contaminate the storm sewers. I'm not
    certain whether they have public treatment plants for their storm water.
    Material could get into the environment ditches, creeks. We would have
    a major environmental cleanup on our hands if there was a fire there.
    Q. Now having been involved with the used and waste tire program
    for such a length of time, have you had occasion to see similar problems
    elsewhere?
    A. Absolutely. Unfortunately, a scenario just like this has
    occurred in other places where people rent buildings, fill them full of

    tires, and then disappear and the landowners, property owners, are left
    to clean up the tires. In East Chicago, Indiana, an old World War II
    factory, perhaps even a little larger than this one but very much the
    same circumstances, stacked from wall to wall as high as 10 to 12 feet
    tall with tires that caught on fire. That fire burned uncontrollably
    for days and days and days. The structure collapsed on top of the
    burning rubber making putting the fire out nearly impossible. People
    were evacuated. Millions of dollars spent in fighting the fire and
    cleaning up the residue thereof.
    Q. And with regard to State-funded cleanups, have there been
    problems of a similar magnitude to the CIC situation?
    A. Nothing where we had that many tires inside of a building.
    Q. Do I understand you to say that this has been the biggest
    State-funded cleanup?
    A. We have cleaned up as many tires in a pile before but it was
    outside. Over the course of my cleanup activities, I have cleaned up 7
    to 10 million tires in various sizes.
    Q. Taking this other situation, can you first of all identify it
    for us, the similar magnitude situation?
    A. It was an open dump east of Kankakee.
    Q. Comparing these two, which cleanup was more difficult?
    A. It's hard to say exactly which is more difficult, each one
    has particular parts of it that made it difficult. Retrieving the tires
    out of a building was problematic. You couldn't really operate big
    machinery inside of it but rather Bobcat size machines that would have
    to go in and grab 10 to 20 tires at a time, bring them to the outside.
    It's virtually acres under roof. One of the benefits of this was that
    we could work through the winter because we did have some protection
    there and we also had a hard surface to work on, concrete and/or
    blacktop, which made working through the winter months possible.
    Q. Okay. Let's get back to Canton Industrial. Now having
    issued the 55.3D notice in July of '95, did the Agency receive any
    response?
    A. Yes, we did.
    Q. Let me show you Exhibit No. 5 and ask if that is a copy of
    what was sent to the director of the Illinois EPA?
    A. Yes, it is.
    Q. And as far as the date of the cover letter, what would that
    be?
    A. August 25th, 1995.
    Q. And does the exhibit indicate when it was received by the
    director?
    A. Yes, August 31, 1995.
    Q. Would it be fair to say, Paul, that the substance of this
    response was a proposal to remove tires?
    A. Yes.
    Q. And that this proposal had been under discussion during the
    court proceedings and the summer of '95?
    A. My recollection is that this was the first time that we had
    officially heard from them a plan to bail tires to effectuate the
    removal.
    Q. Had there been some informal suggestion that some sort of
    plan along these lines might be undertaken?
    A. Yes.
    Q. Okay. As to the actual plan, bailing tires, can you tell us
    whether or not it had been ongoing at the time that this response was
    provided to the director?
    A. I think that as this response was provided, the project of
    bailing tires was just in its infancy.

    Q. Okay. Paul, let me show you Exhibit 2, an inspection report
    that we've had admitted regarding Gene
    Figge's inspection on August
    14th, and does it contain photographs showing the bailing process?
    A. Yes.
    Q. Okay. Did the Agency's review of the plan result in any
    determination whether it was adequate?
    A. In general, our conclusions were that while the project may
    have had some merit, it was willfully inadequate in terms of addressing
    the total removal of the tires from the site. The plan called for
    bailing tires, transporting those bails to Hannibal, Missouri, and then
    at Hannibal casting them into concrete,
    lego block sort of things to
    perhaps oversimplify it, but interlocking blocks that can then be used
    for storage of aggregate piles of big heavy concrete blocks that you
    might see at a DOT yard. Whenever a project such as that is proposed,
    we talk to our sister states to find out if such a project would be
    appropriate or approved. We certainly don't want somebody transporting
    bails of tires into Illinois unless we know what they're going to be
    used for. So we made inquiries to the State of Missouri and I made a
    trip to Hannibal and I talked with the city engineer there. And the
    conclusions after numerous phone calls and letters was that this was a
    pilot project, could consume as much as 450 bails, and frankly we were
    happy that something like this would happen because by then, our plans
    for the cleanup were already in motion and if any tires could be
    beneficially used, that would just lessen the amount that we had to do.
    I would add that in my trips to Hannibal, I observed the spot where the
    bails had been shipped to and frankly the tires had been dumped off of
    trucks, bails had been split open, and tires were laying loosely around.
    It was in the middle of a grass lot. There was no concrete forms.
    There were no bailing--there was no forming operation. When I was
    there, there were just over 100 bails had been transported and I don't
    believe that they ever did ship the 450 bails that the city had
    requested and I don't have any knowledge of them being casting concrete
    and actually used. During the course of the cleanup, the people from
    Missouri said, hey come get these bails back, we don't want them,
    they're just laying around here.
    Q. Okay. Let me interrupt you and show you Exhibit 6 and ask if
    this is the letter you wrote rejecting
    CIC's plan?
    A. Yes.
    Q. And the plan that we're talking about is Exhibit 5 which was
    submitted in response to Exhibit 4?
    A. Correct.
    Q. The scenario being the Agency sent a notice which identified
    the necessary corrective actions, that is, tire removal and that the
    company submitted the response, and then as you've testified, the
    response was evaluated and then finally rejected?
    A. Correct.
    Q. When was it formally rejected?
    A. September 28th.
    Q. 1995?
    A. 1995.
    MR. DAVIS: And that's shown on the face of Exhibit 6. Mr. Hearing
    Officer, let me as a group move the admission of 4, 5, and 6 being the
    notice, the company response, and the rejection.
    HEARING OFFICER: Mr.
    Golightly?
    MR. GOLIGHTLY: I have no objection, Your Honor.
    HEARING OFFICER: People's Exhibits 4, 5, and 6 are admitted into
    evidence.
    Q. (by Mr. Davis) Now by the end of September of '95, Paul, when
    the plan was rejected, had the Agency already been in contact with
    Tri-
    Rinse?

    A. Yes.
    Q. And on what basis was
    Tri-Rinse selected?
    A. They had the equipment, personnel to get the job done, and
    they were the lowest cost contractor that we have on retainer.
    Q. Okay. The contract with
    Tri-Rinse would have been on a unit
    basis then?
    A. Per ton basis.
    Q. Okay. And how many tons approximately were actually removed
    over the course of the project?
    A. In excess of 6000.
    Q. And as far as the exact amount of costs incurred by the
    Agency, what was that?
    A. The exact costs were $326,124.09.
    Q. And for the record, was this money paid by the State out of
    the fund that you've been mentioning to the contract?
    A. Yes, yes, it was.
    Q. Okay. Do you have any opinion as to whether the company
    failed without sufficient cause to do what they were told to do through
    the notice?
    A. Yes, they failed.
    Q. Okay. Did they fail without sufficient cause?
    A. Yes.
    Q. Okay. Now focusing on those two parts. First of all, the
    Agency did its own cleanup, we've established that.
    A. Yes.
    Q. During the course of that cleanup, the company did remove
    through the bails some tires?
    A. Yes.
    Q. Did the company remove any other tire material during the
    course of your cleanup?
    A. Yes, they did. After we started our cleanup, they then
    loaded trailer loads of tires and transported them to Decatur for
    disposal.
    Q. Okay. In effect, did the company reduce the amount of tires
    ultimately removed by the Agency?
    A. Yes.
    Q. On what basis do you state that this is a failure to comply?
    A. They never took any actions until after we began our work and
    they removed but a fraction of the tires that were there.
    Q. Okay. Focusing now on the other part of the sufficient
    cause, does this relate to the nature of their plan in response to the
    notice?
    A. I don't quite understand that.
    Q. The sufficiency of their plan, is this the issue that you're
    focusing on?
    A. Yes.
    Q. Okay. And you've already talked a little bit about it and
    you've mentioned your visit to Hannibal so let me ask that this exhibit
    be marked as People's No. 7.
    (People's Exhibit No. 7 marked for identification.)
    Q. (by Mr. Davis) Paul, let me show you what we've marked as
    Exhibit 7 and ask first of all for you to look at that and identify that
    for us?
    A. Yes, this is a memo and attached photographs that depict what
    I observed in Hannibal, Missouri regarding the location of bailed tires
    that had been shipped there.
    Q. And this would have been a visit on November 7, 1995?
    A. On November 7, 1995 I traveled there.
    Q. Okay. For what purpose?

    A. To verify or to know for sure that the bailed tires that were
    being shipped off the property were in fact being used as represented.
    Q. And did you verify that?
    A. Yes, I did. I verified that the tires were just unloaded
    into a vacant lot but that there was nothing, no casting of concrete
    ongoing, no production-type facility that would lead us to believe that
    this was any legitimate operation.
    Q. In essence, did this confirm your suspicions from several
    weeks earlier?
    A. Yes.
    MR. GOLIGHTLY: I'll object to the question.
    HEARING OFFICER: Overruled. Answer stands. Your answer was?
    THE WITNESS: Yes, it did.
    Q. (by Mr. Davis) By this time, November 1995, had the shipment
    of bails to Hannibal ceased?
    A. I'm not sure if after my visit anymore loads were transported
    off-site or not. At this time, there were some 175 bails shipped there,
    the project called for 450.
    Q. Okay. To your knowledge, was any individual bail ever
    converted to its intended use as a concrete retaining block?
    A. No, and I don't think that--one of the reasons I say that is
    that we had received phone calls from the people in Hannibal asking the
    city engineer there asking if we would come and get these bails back.
    Q. During the limited time that this bailing project was in
    effect, did the Agency issue permits for transportation to facilitate or
    authorize the bails leaving the state?
    A. Yes, but only after we had inquired with the State of
    Missouri, our counterparts there and the city, as to their intentions
    and the legality of such an operation.
    Q. Were these actions in your view a legitimate exercise of the
    Agency's authority?
    A. Yes, very much so.
    Q. Was it to the Agency's benefit to allow any legitimate
    removal no matter how small an amount?
    A. Yes.
    Q. And was this ultimately done to the tune of 175 bails?
    A. It was.
    Q. Okay. Let's touch finally on the project itself. Would it
    be fair to say that this was conducted over the course of five months?
    A. Yes.
    Q. And would it also be fair to say that during portions of that
    time period, that the contractor was not working on the Canton project?
    A. Yes.
    Q. Can you explain that for us?
    A. The contractors that we have do a number of jobs for us.
    Many months prior to commencing the Canton cleanup, we had scheduled
    Tri-Rinse to do a cleanup of a County Amnesty Day. The Agency sponsors
    dozens of these every year. We set up on a parking lot, the public
    brings in tires.
    Tri-Rinse had been scheduled to do this work so we
    moved them off of the Canton site for probably about a week or ten days
    to do a cleanup in Springfield at the fairgrounds and then they went
    back to Canton to continue on with the work.
    Q. Did the contractor bill the State for any costs associated
    from, for the lack of a better word, going to Springfield and coming
    back?
    A. No.
    Q. Okay. Can you as a general matter in regard, of course, to
    this project tell us what types of expenditures remained?

    A. We reimbursed the contractor for a cost to mobilize to a site
    and then a cost per ton to remove and load the tires and then a cost per
    ton to transport them.
    Q. Is the State charged for the purchase of equipment, shredding
    equipment for instance?
    A. No.
    Q. Is the State charged for--well, strike that.
    A. I might add that during the course of this cleanup, as we
    completed the removal of the whole tires, we moved on to the removal of
    the bailed tires and then to the removal of the shredded material that
    had been accumulated on-site. I did negotiate a reduced cost for the
    removal and disposition of the shredded material, something less than
    the contracted price that
    Tri-Rinse provides us because I know that it
    would have been less of an effort to remove the material that was
    already shredded on-site.
    Q. Now the sequence of events that you mentioned, the whole
    tires and then the bails and then the shreds, was that done as an
    accommodation to the company?
    A. Absolutely.
    Q. How so?
    A. So that if any legitimate use of these bails would come
    about, we would not have spoiled their efforts to use bails.
    Q. Okay. And was the focus of the project from its outset on
    reducing the threat of fire hazard?
    A. Yes.
    Q. How was this addressed?
    A. Well, by doing the cleanup.
    Q. I mean as far as sequence of actions.
    A. We started at one end of the facility and pretty much worked
    from one end to the other, crossed over the aisle and worked from the
    other end back. We did remove the tires that had been stacked outside
    for several reasons. One, to effectuate our large trucks moving up and
    down the alleyway, and two, so as to remove the fire hazard.
    Q. Okay. Along those lines, would you agree with the previous
    testimony that the shredded material may have posed a fire hazard but it
    was less than the other circumstances?
    A. Yes.
    Q. Okay.
    A. There were perhaps outside chances that those chips that were
    stored outside could have been marketed and when it got to the end of
    the cleanup and they had not been completely removed by CIC, we removed
    them.
    Q. Okay. I have no other questions but I would move the
    admission of Exhibit 7. I believe a foundation has been laid as a
    business record and so forth. Although I acknowledge for the record
    it's an inspection of a Missouri facility, it was done in conjunction
    with the Agency in Illinois.
    HEARING OFFICER: Any objections, Mr.
    Golightly?
    MR. GOLIGHTLY: Other than I've never seen it before, Mr. Wallace,
    I'm not sure yet.
    Q. (by Mr.
    Golightly) Just a couple questions. First of all,
    this is your original report then?
    A. It is a copy that I provided to Mr. Davis.
    Q. Okay. And is there any indication here of who took these
    pictures and what date they were taken that is sufficient to identify
    the site that's purported to be represented?
    A. I took those pictures.
    Q. Is that on the exhibit?
    A. I believe on the front page it indicates I traveled there on
    the 7th and photographed the representation of what I observed.

    MR. GOLIGHTLY: Beyond that it's a business record, Judge, we have
    no objection to its admission as to what it is.
    HEARING OFFICER: All right. People's Exhibit No. 7 is admitted
    into evidence.
    MR. DAVIS: And I've concluded my direct examination.
    HEARING OFFICER: Cross examination?
    C R O S
    S E X A M I N A T I O N
    by Mr.
    Golightly:
    Q. Mr. Purseglove, did you have an opportunity to speak to the
    principal of the contractor with CIC?
    A. You mean my contractor?
    Q. No, the contractor of CIC. The person who was to create
    these bails and make some ultimate use of them.
    A. Yes.
    Q. Okay. And do you recall about when that took place?
    A. It would have been right as either September or October of
    '95.
    Q. Okay. Since that contract was made known to the Agency and
    included in Mr. Figge's report of August the 14th, is there a reason you
    wouldn't have checked on it before that?
    A. I'm not exactly sure of the date that I spoke to him. In
    fact, you're talking about Randy
    Nowack?
    Q. Novack I believe is his name.
    A. Yes.
    Q. Do you recall speaking with him then?
    A. Yes.
    Q. Do you recall what the result of that conversation was?
    A. I was less than impressed that he had the market to handle
    the half a million tires that were on the CIC property.
    Q. And did you express to him an opinion at that time?
    A. Just that it was clear he had an end use for a small portion,
    small number of bails, at the Hannibal project. But beyond Hannibal, he
    had nothing in contract form that would allow for the use of these
    bails.
    Q. Did he indicate that he was pursuing other contracts for uses
    beyond simply the Hannibal use?
    A. I don't recall.
    Q. In regard to People's Exhibit No. 6, you indicated that you
    had reached the decision, it's your letter to reject the plan that was
    proposed as contained in People's Exhibit No. 5; is that correct?
    A. Correct.
    Q. And that was premised also upon this telephone conversation?
    A. That conversation and discussions that I had with the city
    engineer in Hannibal.
    Q. Okay. Were there any other basis for the decision that's set
    forth in the September 28th letter?
    A. The fact that we had been involved with CIC in legal matters
    going back to October of '93, virtually no tires had been removed from
    the site. Those combination of things led me to believe that CIC would
    not remove the tires in a timely fashion.
    Q. When you say virtually no tires, are we speaking strictly on
    a relative basis?
    A. Yes.
    Q. Because Mr.
    Figge's report in People's Exhibit 1 indicates
    that at least through October or November of '94 that 50,000 tires had
    been removed during that month, is that approximately correct?
    A. I would defer to that, yes.
    Q. So there were some activities taking place prior to that.
    Was there any other basis for your letter of September 28th?

    A. Nothing beyond what is already set out in the original
    notice.
    Q. So then is it your testimony as I understand it, the primary
    factor was the lack of activity you had seen by the respondent prior to
    that date to remove tires on its own?
    A. Yes, sir.
    Q. Was it strictly a matter of rejecting the plan that's
    contained in People's Exhibit No. 5 were the efforts of Mr.
    Novack to
    remove tires?
    A. No. In fact, we encouraged that, we went along with that and
    I think we had discussions that encouraged them to use the bails
    anywhere and everywhere that they possibly could.
    Q. Did in fact the respondent propose several different options
    in an effort to dispose of tires?
    A. At one point, yes, we did receive some correspondence from
    Mr. Hansen.
    Q. Then were any of those other uses approved by the Agency?
    A. No.
    Q. Okay. Do you know how many by volume or whatever tires that
    were removed by the respondent prior to the time that all the tires were
    removed from the project? Beginning at any point in time that you'd
    like to pick as a specific starting date that you're aware of.
    A. I don't have that information.
    Q. Is that something that would be available to the Agency?
    A. CIC is required to maintain daily and annual records that
    show what comes in and what goes out. So CIC should have that record as
    to how much was removed from the property.
    Q. Do you have any idea of the volume of tires that were then
    removed by CIC after the last court date through the period of time that
    exist now that all the tires are removed?
    A. Specifically, no.
    Q. Do you have any general estimate?
    A. I have a general idea of what was removed after October 1st
    when we began our cleanup.
    HEARING OFFICER: I'm sorry, removed by who?
    THE WITNESS: CIC.
    Q. (by Mr.
    Golightly) Generally what would be your opinion then
    of the number of tires that has been removed?
    A. Probably less than 30 truckloads.
    Q. And what would that convert into as far as tons?
    A. 30,000 tires.
    Q. And does that include both whole tires and the shredded
    material that we were discussing?
    A. They did remove some shredded tires. I recall now that they
    also did remove some shredded material.
    Q. And do you have any idea of the amount of those that were
    removed?
    A. Not without looking at their daily tire records I wouldn't
    know.
    Q. Okay. Do you know what
    Tri-Rinse did with majority of the
    tires it removed?
    A. Yes.
    Q. Where were they taken?
    A. Archer
    Daniels Midland in Decatur.
    Q. Commonly known as ADM?
    A. ADM.
    Q. And did ADM charge a fee for receipt of that material from
    Tri-Rinse?
    A. Yes.
    Q. Do you know what that is?

    A. It's a fluctuating fee depending upon the market. During the
    time of this cleanup, I believe it was $15 a ton, it could have been 10.
    Q. Do you have--are there records that exist within the Agency
    that would reflect what was paid since I assume the State reimbursed
    Tri-Rinse for those.
    A. We paid the contractors a flat rate. They absorb whatever
    disposal costs there are.
    Q. Okay. Why was a lower rate negotiated for the shredded
    material?
    A. The contractor, part of his business is re-mediation work.
    Going to sites, shredding whole tires. There is certainly a cost
    associated with shredding tires. Another part of their business is to
    take tires at their home plant, process them down, and market them as
    fuel. Since the shredded material was partially processed, the cost
    associated to them to take it down to the final marketable stages would
    be less.
    Q. Okay. Does ADM accept whole tires?
    A. They except whole automobile tires.
    Q. Okay. And what's the distinction that they accept whole
    automobile tires as opposed to any other tire?
    A. They do accept some whole truck tires but at a significantly
    increased cost. In effect, nobody takes whole truck tires to ADM.
    Truck tires are by nature much more difficult to shred. They are very
    heavy. The equipment necessary to shred truck tires is significantly
    more expensive than equipment necessary to shred a car tire.
    Q. Okay. Do you know if there was any difference in the rate
    that ADM charged to receive whole passenger car tires and the rate that
    they were charging
    Tri-Rinse to receive the material they were
    delivering?
    A. No, there shouldn't have been no difference.
    Q. Do you know in fact that the respondent,
    Cyber America
    Corporation, was shipping whole passenger car tires to ADM and getting
    that same rate as
    Tri-Rinse was getting for the shredded material that
    they were shipping?
    A. I don't have any knowledge of that. I assume that would be
    correct.
    Q. Do you know if that was the same rate that they were also
    paying for the shredded material that was being shipped over there?
    A. Yes.
    Q. So if anyone could have shipped whole passenger car tires,
    the cost at ADM would have been the same?
    A. Correct, at ADM the cost would have been the same.
    Q. And the other costs involved would have been simply
    transporting those tires, the hauling cost to get them to the ADM site?
    A. Yes. Well, it would have been the cost of taking them out of
    the building, putting them on a truck, and then transporting them to
    ADM.
    Q. Are you aware of any inquiry being made into the number of
    truckloads of tires that were leaving the Canton plant site during the
    State cleanup procedure?
    A. I don't quite understand that question.
    Q. Are you aware of any concern that the company has expressed
    regarding the number of loads that were shown as having left the Canton
    plant site as opposed to those that were reflected in internal company
    records of Canton?
    A. Not until after the cleanup was completed.
    Q. Okay. At that time then did you assist in formulating any
    sort of response to that?
    A. Yes.

    Q. And what if anything did you do in responding to that
    inquiry?
    A. We provided a copy of all of the invoices that would document
    each truckload of shredded material that left the site.
    Q. Okay. And those are the same invoices that lead to the
    figure that you have given Mr. Davis of $326,000, whatever it is, those
    are simply the invoices and by addition you've totaled them up to
    testify to that figure?
    A. Yes.
    Q. And what efforts have you made to satisfy yourself that all
    of those invoices of the material represented by the invoices originated
    from the Canton site?
    A. That is our standard operating procedure.
    Q. I'm sorry?
    A. I said it's very much our standard procedure to task a
    contractor to do a cleanup and during the course of that cleanup as
    loads are sent to Decatur, each truck is weighed in and out at Decatur,
    date stamped, and then that ticket is submitted to the EPA for
    reimbursement.
    Q. So you've satisfied yourself that the material was actually
    received in Decatur and you have receipts from ADM, if I understand what
    you've just testified to?
    A. Correct.
    Q. My question was, what efforts did you do to verify that this
    material originated from the Canton plant site?
    A. Although we did not maintain a constant vigil at the site
    during the course of the cleanup, we inspected--Mr.
    Figge was on-site
    numerous days. I was there numerous days, observed trucks coming in,
    going out. And then as bills would come in, we would look at reports
    that might have been submitted from the field or E-mail letters that
    Gene and I would have shared saying five trucks went out today, ten
    trucks went out today, and comparing them against the bills that came
    in. We did not follow every truck that left the Canton site and track
    it to Decatur to be sure that we were not being cheated. I have no
    reason to think that we were being cheated. We have done work with this
    contractor for several years and found him to be nothing but forthright
    and honest in his dealings with us.
    Q. You mentioned several things. First of all, you said there
    were reports that five truckloads went today?
    A. As an example maybe five loads went out today or ten loads
    went out today.
    Q. And who would have generated that sort of report to report to
    either you or Mr.
    Figge that five loads went out today?
    A. Either Gene would have gotten the weight tickets from the on-
    site manager, the
    Tri-Rinse foreman, or he would have actually observed
    them going in or out if he was there that day.
    Q. So those would primarily have been limited to the visits that
    are reflected in People's Exhibit No. 3 on the second page there when he
    was on the site. In other words, for him to personally observe, it
    would have been when he was actually there?
    A. Yes.
    Q. Is there a record kept of when you were on the site?
    A. No.
    Q. Okay. And the last comment you made was you had no reason to
    believe that we were cheated. In other words, we just simply trust
    Tri-
    Rinse, we relied upon them and went from there?
    A. It's not quite that simple.
    Tri-Rinse has two shredding
    machines, both of them were on-site at the Canton operation doing this
    cleanup work at varying times. I don't have any reason to think that
    they would have been doing any cleanup work anywhere else at the time.

    So that what you're getting at is that
    Tri-Rinse hauled more loads to
    Decatur than what came out of Canton, I don't have any reason to believe
    that. They were working on this job for us, they weren't working
    anywhere else.
    Q. And other than your confidence in them, do you have any other
    evidence that would substantiate that position that there's no reason to
    even ask that question?
    A. No, I don't have any evidence to think that they would have
    been billing the State for work that they didn't do.
    Q. Do you know whether or not
    Tri-Rinse stopped moving whole
    tires to move the shredded material that was piled out on the site?
    A. I don't recall.
    Q. Did you have to specifically authorize
    Tri-Rinse to begin
    moving the shredded tires?
    A. Yes.
    Q. And was part of that a stipulation that they finished
    removing the whole tires, as you mentioned that was the most important
    thing?
    A. It was just as the cleanup was nearing its completion, that
    we then addressed the removal of the shredded material. There could
    have been a few whole tires left.
    Q. Could have been but you don't really know?
    A. I could look at my letters that I authorized the contractor
    to remove the shred and could tell you, yes, there were still some whole
    tires on-site. Part of the reduction in cost to remove the shredded
    material was a factor that they would already have their equipment down
    there doing the whole tires and if they had done the whole tires and
    then left and had to leave a man on-site just to remove the shred, it
    would have cost more than if while they were working on the final part
    of the removal of the whole tires, they could then also load out the
    shreds.
    Q. Was there any cost related in removing the shreds other than
    simply using a front end motor, putting it on a truck, hauling it to
    ADM, and paying their charges?
    A. I would have to look at my records but I believe that the
    materials, the shredded material was hauled to St. Louis where it was
    re-processed and then marketed as fuel.
    Q. Okay. But you're not sure about that?
    A. I'm almost certain.
    Q. Okay. Did you testify that prior to the entry of the Court
    order that Canton didn't remove any tires or tire product?
    A. Virtually none I think is what I said.
    Q. Okay. When did they remove the shred that was taken to the
    Pekin landfill, when did that happen?
    A. They did remove some material to the
    Pekin landfill.
    Q. That would have been prior to the Court order?
    MR. DAVIS: This is not necessarily an objection but I would think
    the record would be more clear if we referenced which Court order since
    we have several.
    MR. GOLIGHTLY: But that was the question, prior to the entry of
    the time of the Court order. If you want to clarify which one it was
    then.
    MR. DAVIS: Well then I would object, I think the record may be
    confused. The witness if he can should identify what Court order.
    HEARING OFFICER: Sustained. Let's put a date around it.
    Q. (by Mr.
    Golightly) The last Court order as I recall--do you
    have Mr. Davis's chronology, was it in July of 1995, is that the last
    Court order you testified to? The last contempt order or the last order
    of the Court was May 31, 1995. Let's use that as a point of reference.

    Did CIC remove tire product prior to the last Court order which was on
    May 31, 1995?
    A. I don't recall. I think that they did remove some material
    to the Pekin landfill.
    Q. And any of the other prior things would have been included in
    Mr. Figge's reports that already in evidence if he so testified that the
    exhibits contained them?
    A. Yes.
    Q. And as I understood Mr.
    Davis's question at one point, the
    last Court order would have been at or about the May 31, 1995 date; is
    that correct?
    A. Yes.
    Q. Do you recall any discussion of the plan using the concrete
    blocks at that court hearing?
    A. I don't recall.
    Q. Okay. And do you have an exact figure on the number of tons
    that were actually removed by the State contractor?
    A. Yes, I do.
    Q. And that would be?
    A. 6042.2 tons.
    Q. Okay. I received subsequent correspondence that indicated or
    that provided records for the removal of 5631.2 tons from the
    Department, do you know what that figure represents?
    A. During the course of this cleanup which began on the 2nd of
    September --
    Q. About the 2nd of October, just to be clear.
    HEARING OFFICER: Wait, don't talk over each other please.
    MR. GOLIGHTLY: I'm sorry, sir.
    THE WITNESS: Over the course of the cleanup --
    HEARING OFFICER: Wait, let's back up. What date were you using, I
    didn't hear. You started to say a date.
    THE WITNESS: The cleanup commenced around the first of October '95
    and completed around March of '96. We received 9 or 11 invoices billing
    us from the contractor during the course of those months. Adding up
    those 9 invoices, there may have been some discrepancy over 5632 tons or
    6024 tons.
    Q. (by Mr.
    Golightly) And has that discrepancy been resolved?
    A. I thought that it had.
    Q. Has it or hasn't it? I mean, you admitted there is some
    discrepancy, how has that been resolved?
    A. I think that we gave Mr. Davis the correct figure which he
    incorporated into the records.
    Q. You think you gave him the correct figure?
    A. We gave him the figure that we thought was correct.
    Q. What was the billing rate per ton for the project done by
    Tri-Rinse?
    A. They charged us $49.50 a ton to retrieve and shred and load
    the tires. 5 cents a ton mile to transport them and a mobilization
    charge to bring their equipment onto the property.
    Q. Are you aware of the mileage from the Canton plant to ADM?
    For a suggested figure of 210 miles, is that a close enough estimate?
    A. I don't know, I didn't look at a map.
    Q. Did the billings that
    Tri-Rinse sent to us include a charge
    for those miles?
    A. Yes, 210 miles, you're correct.
    Q. Okay. And would that work out to approximately $10.50 a ton
    for 210 miles?
    A. Yes.
    Q. Okay. So
    Tri-Rinse is billing $60 a ton, that is,
    approximately 49.50 and 10.50 for hauling?

    A. Yes.
    Q. And the discrepancy of 500 tons is something that you think
    we've worked out?
    A. Yes.
    Q. How does 6042.1 tons convert into whole tires?
    A. Because there were numerous truck tires, numerous
    ag. tires,
    and off-road tires,
    Volkswagon tires versus tires that might come off of
    Cadillacs, it sometimes becomes difficult. In the business, we normally
    say 100 tires makes a ton. There were a lot of truck tires on this
    property.
    Q. Then do you have any opinion as to the reason that over 6000
    tons were reported removed only by
    Tri-Rinse for approximately 600,000
    tires based on what you just told us and Mr.
    Figge's estimate of
    $500,000 tires in the report that he filed previously?
    A. A couple of things can account for that. Truck tires weigh
    about 100 pounds, so for every truck tire that was on the property, you
    would reduce the total number of tires. Secondly, one of the things
    that strikes me the most about this site is virtually acres of property
    under roof and tires piled everywhere and little
    ailseways cut through
    it and you could virtually walk around it in circles and it's not like
    you can walk up and see one pile. These piles are in building after
    building after building. And when you start approaching a half a
    million tires, it is very difficult to give you an exact number. I
    would not be surprised if it would have been 7000 tons. Suffice it to
    say, it was a lot of tire.
    Q. Would you be surprised if it was 7500 tons?
    A. No.
    Q. Would you be surprised if it was 8000?
    A. No.
    Q. 9000?
    A. Somewhere along the line we would have a concern about it but
    there were many, many thousands of tires there.
    Q. At what point would be your threshold for being surprised?
    A. I don't know.
    Q. Okay. Mr.
    Purseglove, just so I'm clear on the basis of the
    contract, you used a couple of terms.
    Tri-Rinse is a firm that's on
    retainer, is that a proper term that you use in the Agency?
    A. Yes.
    Q. Does that mean there's already a contract and there's already
    a price established at which they'll come in and do work?
    A. Yes.
    Q. And such a contract was signed substantially prior to them
    coming onto this site of October 1, 1995 when they started working on
    the site?
    A. Yes.
    Q. Okay. So that price was determined without regard to the
    existence of the buildings, the other factors that are present and
    existed on the Canton plant site?
    A. I don't know what the contractor considered when he made his
    proposal to do work for the State.
    Q. Was he aware of this site when the contract was originally
    signed months prior to October of 1995?
    A. No.
    Q. Okay. So then that contract was not negotiated on the basis
    of this site?
    A. That's correct.
    Q. And who initiated the discussion to have a different
    contractual rate for the already shredded material that was on the site,
    was that at your request?
    A. I did.

    Q. Your request and not
    Tri-Rinse's?
    A. Yes.
    Q. If that had not happened, would they have been authorized or
    could they have simply treated that as waste tires and done them at the
    original contract rate?
    A. Yes.
    Q. So you took action at that point to try and conserve the
    State's funds; is that correct?
    A. Correct.
    Q. And is that one of your responsibilities?
    A. Yes.
    Q. And anytime an opportunity's presented to save the State's
    funds, it's one of your responsibilities to pursue that?
    A. I can within some limits pursue those things. I can --
    Q. It's okay, I can ask you another question. I don't believe I
    have anymore questions at this time, Mr. Wallace.
    HEARING OFFICER: Re-direct?
    MR. DAVIS: Thank you, Mr. Hearing Officer. Paul, is it your
    understanding that you've provided to Ms. Ryan, the Agency counsel, and
    myself all of the supporting documentation for the removal project?
    THE WITNESS: Yes.
    MR. DAVIS: With leave of the Hearing Officer, let me address my
    remarks to counsel. If you see a need to put this in the record, I'll
    put it in?
    MR. GOLIGHTLY: You're aware of what my concerns are.
    MR. DAVIS: If I might have a moment then.
    HEARING OFFICER: Before you begin your re-direct, why don't we
    take a five, six, ten minute break.
    (A short break was taken)
    HEARING OFFICER: All right. Back on the record. We're
    essentially beginning re-direct of Mr.
    Purseglove.
    R E - D I R E C T E X A M I N A T I O N
    by Mr. Davis:
    Q. Paul, the first issue I want to touch upon is a logistical
    issue. Is it easier to haul whole tires or shredded material?
    A. Shredded material.
    Q. And why so?
    A. You can use a dumping truck that dumps at ADM. ADM doesn't
    have any facilities to unload trailers. So if you send a trailer load
    of whole tires to ADM, you have to send the laborers along with it to
    unload them.
    Q. And can you haul more PTE in a truck of the same size
    carrying shredded material as opposed to whole tires?
    A. Yes.
    HEARING OFFICER: I'm sorry, did you say PTE?
    MR. DAVIS: Yes, passenger tire equivalent is what I'm referring
    to.
    Q. (by Mr. Davis) And another issue I'd like to touch upon
    involves the Agency's oversight. We've had testimony from yourself and
    Mr. Figge that you were both on-site numerous occasions. Is your time,
    your mileage, any other costs that you and your colleague incurred
    included within the $326,000 figure?
    A. It is not.
    Q. Now lastly as to the issue of an apparent discrepancy, would
    it be fair to say that there was a preliminary total number and then a
    final total number?
    A. Regarding the towing tons and cost figures?
    Q. Yes.
    A. Yes.
    Q. And focusing on the money, what is the final figure?

    A. The final figure is as represented in our complaint.
    Q. The 326,000?
    A. 326,000.
    Q. Okay. And as to the issue of tonnage, what is the final
    figure?
    A. 6042 tons.
    Q. Okay. Do you believe that the Agency --
    HEARING OFFICER: Sorry, that's 6042, right?
    THE WITNESS: Yes.
    Q. (by Mr. Davis) Do you believe that the Agency has
    documentation to support these final numbers?
    A. Yes.
    Q. Let me show you what we've marked as a group Exhibit No. 8
    for the People and ask if these are copies of the invoices that pertain
    to the CIC/ Tri-Rinse project?
    A. Yes, they are.
    Q. And I believe you had testified earlier that there were
    several different--or rather several separate invoices. Could you, if
    you would, go through these one by one and determine whether or not
    these are the actual invoices?
    A. Yes, they are.
    Q. Okay, very good. Let me focus on just the first invoice in
    the series. Let me have you describe what types of information and the
    sources of information would be on the first invoice in Exhibit 8.
    A. It would include a summary of the tons that were removed and
    the distance that they were transported, broken down by individual loads
    over the time period specified. For example, this invoice is for loads
    that were transported October 6th through October 12th. And during that
    time period, there was a total of 734.95 tons of material removed.
    Q. Now these forms are Agency-generated forms for the most part?
    A. The form is generated, the contractor completes them.
    Q. And is this an obligation under the contractor?
    A. Right. The contractor must use these forms so that our
    fiscal people can quickly analyze their forms.
    Q. And is there also on
    Tri-Rinse letterhead a separate invoice?
    A. Yes. An invoice is submitted from
    Tri-Rinse, our forms is
    backup documentation. And then after the Agency's process the invoice
    and send it to the comptroller, this form is attached to it.
    Q. Now I see on the face of some of the invoices including the
    initial one in Exhibit 8 that there has been some cross-outs regarding
    the RCIF, would this be the response action contractor indemnification
    fund that is provided in certain cases under state statute?
    A. Correct.
    Q. But not regarding waste tires I take it?
    A. Yes. When we began our contract tire cleanup work, 5 percent
    of all contract costs were deposited into the indemnification fund.
    That doesn't affect the cleanup costs, it's just in addition to what we
    pay another 5 percent goes into the indemnification. Just at about the
    time that this work began, the indemnification fund reached its
    statutory maximum so the State no longer had to pay into it.
    Q. Okay. And so have the figures represented on these forms
    been adjusted to reflect reality?
    A. Yes.
    Q. Okay. Are these forms and the information contained therein
    generated in the normal course of the Agency's business?
    A. Yes.
    Q. Contemporaneously with the separate billings reflected by the
    separate invoices?
    A. Yes, they are.

    MR. DAVIS: Mr. Hearing Officer, we would move into the record
    People's 8 as a business record of the Agency.
    MR. GOLIGHTLY: I have no objection.
    HEARING OFFICER: How many total invoices are included?
    MR. DAVIS: I would represent to the Board that People's Exhibit 8
    as admitted contains an invoice dated 10/17/95, an invoice dated
    10/31/95, an invoice dated 12/5/95, an invoice dated 1/9/96, an invoice
    dated 1/31/96, an invoice dated 2/15/96, invoice dated 2/29/96, and then
    the one that should have preceded that dated February 15, '96.
    MR. GOLIGHTLY: We've had one dated 2/15/96.
    MR. DAVIS: May we go off the record please.
    HEARING OFFICER: Off the record.
    (An off-the-record discussion was held)
    HEARING OFFICER: Back on the record.
    Q. (by Mr. Davis) Paul, would you go through the exhibit and
    utilize the invoice numbers to indicate separate exhibits and give me
    the subtotals for each that you do. I believe that there are nine,
    we've established that during the off the record investigation. So the
    first invoice number would be?
    A. I think the easiest way to do it would be for the work
    performed for such and such a date.
    Q. All right.
    A. This was for work conducted October 6, '95 through October
    12, '95 for $44,832.45.
    Q. Okay.
    A. Work conducted October 13th through the 31st, $94,842.74.
    Work conducted December 7th through December 27, '95, $15,447.21. Work
    conducted January 11, '96 through January 29, '96, $51,095.29. Work
    conducted February 1st through February 13th of '96, $24,647.59. Work
    conducted October 13, '95 through 10/31/95, 94,842.74.
    MR. DAVIS: That's apparently a duplicate copy.
    MR. GOLIGHTLY: The amounts and the dates, is it in fact a
    duplicate or are we testifying to what it appears to be?
    Q. (by Mr. Davis) What does it appear to be, Paul?
    A. That appears to be a duplicate copy of what we've already
    talked about.
    MR. DAVIS: With leave of the Hearing Officer, we will withdraw
    this duplicate copy from Exhibit 8.
    HEARING OFFICER: All right. The leave is granted.
    THE WITNESS: This one is for work conducted 11/1/95 through
    11/29/95, $24,874.61. This is for work conducted February 14th through
    February 29th for a total of $45,547.70. And an invoice for work
    conducted February 21st through March 1st.
    HEARING OFFICER: Of '96?
    THE WITNESS: Yes, for $24,866.50.
    Q. (by Mr. Davis) Now for purposes of clarifying the record, I
    would request once more to go off the record so that we can use a
    calculator to come up with the total, if that's all right, Mr. Wallace?
    HEARING OFFICER: All right. Off the record.
    (An off-the-record discussion was held)
    HEARING OFFICER: Back on the record.
    Q. (by Mr. Davis) Mr.
    Purseglove, according to calculations that
    we've conducted off the record, what is the total?
    A. $326,154.09.
    Q. Now regarding the issue of any discrepancy in the State's
    billing records, does it appear that we've resolved this by tallying up
    each of the separate invoices?
    A. Yes.

    Q. As far as another issue that being whether our records
    submitted by the contractor may or may not comport with the company's
    records, do you have any information that could enlighten this?
    A. Our contracts are designed so that we receive a weight ticket
    on every load that is removed from a cleanup site. CIC, to my
    knowledge, did not weigh any trailer load that came into their property.
    Trailer loads were brought in and an estimate was made of the number of
    tires, depending upon whether that was a trailer that was 40 feet in
    length or 53 feet in length, whether the person that was loading the
    trailer had experience or not. You could have anywhere from 700 to 1300
    tires in a trailer. I don't know specifically if CIC counted the tires
    as they were removed or made some estimate on every load that came in,
    oh this trailer's got 300, oh this one's got 500. But if they think
    that there was something less than the 6000 tons of material on the
    site, they didn't weigh it coming in so I don't know.
    MR. DAVIS: Okay. Thank you, sir. At this time, we would conclude
    our re-direct and move the admission of No. 8 I believe.
    HEARING OFFICER: Any objections?
    MR. GOLIGHTLY: I have no objection to 8 and we would reiterate my
    request off the record for a copy of 8.
    HEARING OFFICER: People's Exhibit No. 8 is admitted into evidence
    and leave is granted for Mr. Davis to withdraw People's Exhibit No. 8 to
    make copies for the People and for the Respondent and return the marked
    to the Board. I would note for the record that Exhibit 8 is a group
    exhibit and it consists of eight separately stapled invoice vouchers
    with each invoice voucher having various attachments to it for lack of a
    better description. Re-cross?
    R E - C R O S
    S E X A M I N A T I O N
    by Mr.
    Golightly:
    Q. With regard to People's Exhibit No. 8, Mr.
    Purseglove, does
    your signature appear on the front page here as the receiving officer?
    A. Yes.
    Q. It's one of your duties and responsibilities to review these
    invoices that are received from the contractors?
    A. Correct.
    Q. Now is what's consisting of People's Exhibit No. 8, are those
    documents of which there are eight separately stapled items, is that the
    substance of what you review in indicating or signing them for approval?
    A. Attached to those would be a weight ticket for each load. So
    there would be considerably more than that.
    Q. So this is simply a summary of what you've referred to?
    A. Correct.
    Q. And those documents are not attached to this exhibit?
    A. The individual weight tickets for the thousand or so loads
    are not attached to that exhibit.
    Q. So you've reduced these from what was already there to
    something less than what was there for purposes of admission to the
    Court today?
    A. Correct.
    Q. Okay. And those weight tickets, I think we referred to those
    briefly earlier, those are the ones where ADM weighs the truck on the
    way in and weighs the truck on the way out, says this is the tonnage of
    tires for which we're going to bill you for having received them?
    A. Correct.
    Q. Are there any other documents that exist or that are being
    submitted to the Hearing Officer that exist to indicate the source of
    the materials that were received by ADM with those weight tickets?
    A. No.
    Q. What information is on the weight ticket?

    A. The tickets are numbered sequentially. The dates are on
    there. The truck driver signs them, the weight in, the time in, the
    weight out, time out.
    Q. So essentially identifies the truck, the date, and then the
    weight when it comes in and the weight when it goes out and then I
    suppose there's a difference between those numbers to indicate the
    number of tires received by ADM?
    A. Correct.
    Q. And it was on the basis of these documents that you earlier
    testified of the amount that the State expended?
    A. Correct.
    Q. And can that money be expended until you complete this review
    and approve these for payments on the dates as indicated by your
    signatures on each of the eight separate stapled documents that make up
    People's Exhibit 8?
    A. You lost me there.
    Q. Well, can these be paid prior to your approval for payment?
    A. No.
    Q. Is there anyone else that has to approve these for payment?
    A. We have a series of checks and balances within our Agency.
    Our fiscal group reviews them, they return them to me after they have
    done the actual math, and approve that the contractor's math has been
    correct, and then when I get it back from fiscal saying the math is
    good, I sign them.
    Q. So you don't perform that math verification?
    A. No.
    Q. You rely upon someone else to do that?
    A. One of the accountants, yes.
    Q. And is there a place on these documents that indicate that
    that review has taken place?
    A. It would not be on that document.
    Q. I'll hand you back People's Exhibit 8.
    A. No.
    Q. So there's another document that would have been attached to
    this upon which you based your approval that's not included in People's
    Exhibit No. 8, being this math verification process?
    A. Yes.
    Q. And would they have received weight tickets as well, the
    other documents that are not attached to these?
    A. The complete package would be that of the weight tickets, one
    weight ticket for every load, and some accountant's adding machine
    ribbon that showed he checked the math on it.
    Q. What other efforts with regard to any of these invoices did
    you take to verify their accuracy and their completeness?
    A. None others.
    Q. Subsequent to the approval for payment and based upon the
    proceedings that are being taken by this Board, have you completed any
    other activity to verify the accuracy and completeness of these
    invoices?
    A. I've reviewed each one of them before I signed them, found
    them to be accurate, and approved payment.
    Q. Okay. Subsequent to that time, has there been anything else
    you've done to verify the accuracy and completeness of these invoices?
    A. No.
    Q. In the dates that are included--oh, I know what that is,
    strike that. And, Mr.
    Purseglove, the total you gave us of 6042.1 tons,
    that was arrived by the same process of adding the tonnage up from each
    of these invoices and you're confident that that number turns out to be
    6042.1 tons and that number would only be derived from the contents of
    People's Exhibit 8?

    A. Yes, correct.
    Q. As supported from the other documents that were attached to
    these at the time of your review?
    A. That's correct.
    MR. GOLIGHTLY: I have nothing else.
    HEARING OFFICER: Will you hand me Exhibit 8 please. Actually, I
    just had a couple questions. For the record, Mr.
    Purseglove, when you
    say CIC, what are you referring to?
    THE WITNESS: Canton Industrial Corporation.
    HEARING OFFICER: And did you authorize
    Tri-Rinse to go to
    Hannibal, Missouri to bring the bails back?
    THE WITNESS: No.
    HEARING OFFICER: Did the State of Illinois retrieve the bails?
    THE WITNESS: No, we did not.
    HEARING OFFICER: Another question I had, the 210 mile
    transportation figure, is that a round trip figure?
    THE WITNESS: That's a round trip figure from Canton to ADM in
    Decatur.
    HEARING OFFICER: Okay. The EPA form entitled Summary of Used Tire
    Cleanup Charges, contained on that form for Exhibit 8 is all the tonnage
    that you've said comes up to 6042.1?
    THE WITNESS: Yes.
    HEARING OFFICER: Okay. And that's derived from the weight
    tickets?
    THE WITNESS: Correct.
    HEARING OFFICER: Okay, thank you, you may step down.
    MR. DAVIS: The People would rest.
    HEARING OFFICER: Okay. Mr.
    Golightly?
    MR. GOLIGHTLY: We'll call Alan
    Hansen.
    (Witness sworn)
    HEARING OFFICER: All right. You may proceed.
    D I R E C T E X A M I N A T I O N
    by Mr.
    Golightly:
    Q. State your name for the record please?
    A. Alan Dale
    Hansen.
    Q. And could you spell Alan for the record?
    A. Alan, A-L-A-N, Dale, D-A-L-E,
    Hansen, H-A-N-S-E-N.
    Q. And have you been employed by the respondent what was known
    as Canton Industrial Corporation and is now known as
    Cyber America
    Corporation?
    A. Yes.
    Q. What has been your position with the company here in
    Illinois?
    A. Various. Anything from vice president of operations to
    currently I'm a part-time employee doing property management for the
    company.
    Q. So your present only title is that of property manager?
    A. Yes.
    Q. For the site located in Canton, Illinois?
    A. Correct.
    Q. Okay. Could you briefly describe how you came to be in
    Illinois and your involvement with the tire recycling project generally
    that's been discussed here today?
    A. I had gone to work for the company in Salt Lake City, I'm
    trying to remember if it was Canton Industrial Corporation at the time
    or not, I'm not certain. They asked me to come out and start up a tire
    recycling operation. My background was the chief operation's officer of
    a tire retailing operation. Came out here I believe it was the 3rd of
    July 1992, started doing some evaluation trying to understand what the
    market was, what would work, what wouldn't work, talked to a lot of

    people in the industry including Mr.
    Purseglove, etc. Once that was
    done, developed a business plan. The company said they wanted to
    proceed. We determined we weren't going to do anything until we had a
    commitment on equipment which we got I believe in early November of 1992
    at which time once we had the commitment on equipment and delivery, we
    went ahead and started receiving tires within the law based on the fact
    that we needed revenue generation. This proceeded, equipment started to
    arrive on a timely basis. The main equipment was on-site.
    Unfortunately, we ran into the problem with the manufacturer who had
    committed to bring conveyers which delayed us ultimately several months.
    The equipment didn't work according to specifications.
    Q. Let's stop there for a moment. This is in late 1992?
    A. That would have been in early 1993.
    Q. And can we short circuit the whole explanation by saying
    there were severe problems with the operation and the end product that
    this equipment was able to produce?
    A. Yes.
    Q. Did that ultimately lead to some complaints between the two
    companies?
    A. Yes.
    Q. Are you aware of the lawsuit that's been filed with the
    supplier of that equipment?
    A. Yes, I am.
    Q. Let me hand you what's been marked as Plaintiff's Exhibit 6
    and just ask you if you can identify what that document is and if you're
    generally aware that a suit has been filed?
    HEARING OFFICER: Respondent's Exhibit?
    MR. GOLIGHTLY: Respondent's Exhibit 6, I'm sorry.
    THE WITNESS: I'm not sure if I'm familiar with this specific
    document. I am aware that the company has filed a suit against My-
    jak
    (phonetically).
    Q. (by Mr.
    Golightly) And you assisted in providing information
    related to the events that took place in late '92 and early '93 that
    formed the basis of that complaint?
    A. Yes, I have.
    MR. GOLIGHTLY: Your Honor, at this point having provided Mr. Davis
    with a copy, we'd ask the Court to take judicial notice of this public
    filing. It's a copy of the complaint that's filed in Cook County.
    MR. DAVIS: No objection.
    HEARING OFFICER: I will admit Respondent's Exhibit No. 6 into
    evidence and take administrative notice of said suit.
    Q. (by Mr.
    Golightly) How long a period of time did the problems
    related to the equipment last before the intention to use the equipment
    was abandoned?
    A. I'm sorry what?
    Q. How long was it until the attempt to rectify the equipment
    was abandoned?
    A. The efforts to--there were two pieces of equipment brought
    in. They were by contract to produce a 1-inch minus chip at a rate of
    six tons per hour. The initial piece of equipment we worked with and
    tested for a period of 30 plus days, that was producing very large
    useless chip about 4-inch nominal. The vice president of My-
    jak
    (phonetically) came down and offered to provide us with another piece of
    equipment, take the whole first system out, bring in a second system by
    which time we had already agreed with the EPA to reduce our operation to
    three truckloads a day which meant we were operating in a deficit. The
    second piece of equipment was delivered. It did function to the point
    where it was accomplishing something. It was supposed to be making a 2-
    inch minus chip, it was making what the EPA has determined to be a 2-
    inch nominal chip, difference being 5 percent or less of material has

    any diameter more than 2-inches. We estimated it at 10 to 15 percent,
    was larger than that so it would have been a 2-inch nominal. 2-inch
    nominal means by the definition of the State that it is still a whole
    tire. We continued operation, I would call limping along until
    September at which time the corporation re-
    nigged on an agreement to
    keep the equipment in place. We shut down the operation as far as
    bringing tires in about, I don't know, one or two weeks before an
    injunction was placed on the company. So it already ceased as far as
    bringing tires in.
    Q. If I tell you that the complaint to seek that injunction was
    filed on October 22, 1993, can you testify whether tires were still
    coming in at the time the complaint was filed?
    A. If I remember, and that's just a little rough, but I can
    become pretty close. It seems like it was early September when the
    decision was made to stop operations at least until new equipment was
    provided. And I had been in communication with the EPA telling them we
    were going to wind down what we brought in, basically cleaning up
    operations where equipment was already in place. And I think we
    finished the last load by September 30th I believe.
    Q. And so that was the last time the tires were received on the
    site?
    A. Uh-huh, yes.
    Q. From that date until the completion of the tire cleanup in
    March of 1996 when any further or additional waste tire was brought onto
    the site?
    A. None were brought in officially. I think there may have been
    a half a dozen tires thrown over the fence. No, there were no other
    tires brought into the facility.
    Q. What in your opinion being the representative of the
    respondent here in Canton, Illinois prevented the respondent from
    complying with the Court's orders to remove 20,000 tires per month in
    1994?
    A. There were two factors. The first factor was related to cash
    flow of the operation. Salt Lake authorized me to keep all rents and
    supplemented that to some extent between I think it was October of '94
    and January of '95. I believe we took out approximately 700 tons of
    material, this was all the 2-inch nominal chips. The reason we chose
    that was neither fire safety although I've heard both sides of that
    today saying that it was more volatile and somebody saying less. The
    bottom line was I had a certain number of dollars to work with and we
    could come fairly close to the compliance figure by removing the 2-inch
    chips which I had been specifically told as far as the EPA was concerned
    were whole tires. So we were meeting the letter of the law.
    Q. Okay. And what was the second factor?
    A. The second factor was in January of 1997, the
    Pekin landfill
    informed us they could no longer accept our tires or our chips even
    though they continued and do to this date continue to receive chips from
    the Pekin Recycling Facility. We had been informed, and I suppose this
    would be hearsay but this is the opinion that I had, that they had been
    told that they were not to receive anymore chips from us, us being
    Canton Industrial Corporation. There was some sort of regulation that
    was referred to but the bottom line was they were afraid that the EPA
    would chase them if they didn't comply. So the feedback I got, and I
    cannot remember specifically who I got it from, whether it was the EPA
    or a third party, was that they had decided that we should be cleaning
    up the whole tires rather than the chips and therefore they didn't want
    us to clean up the chips.
    MR. GOLIGHTLY: Mr. Hearing Officer, at this point I would object
    and move to strike this relation of what unknown parties or somebody may
    have said seemingly as being presented for the truth and the content of

    what may or may not have been said. So it is definitely hearsay. If
    the witness can be more specific, we can address that but that's my
    objection thus far.
    MR. GOLIGHTLY: As far as addressing what was said by third
    parties, I cannot respond to Mr.
    Davis's argument. Obviously, there
    were a mixture of numerous statements to attempt to strike the entire
    thing based upon an objection of hearsay. After that, we can't now go
    back and reconstruct what we said. I responded on obviously it's all
    hearsay and therefore we should be able to strike the entire answer at
    this time.
    HEARING OFFICER: All right. The objection is overruled to the
    extent that I'm not going to strike the entire testimony. Maybe in
    future questioning when there is a purported hearsay objection, bring it
    up at that time. Please continue.
    Q. (by Mr.
    Golightly) Then the primary reason that chips were no
    longer--the nominal 2-inch chips were no longer taken to the
    Pekin
    landfill is that the company was informed they would no longer accept
    them?
    A. Correct.
    Q. So that avenue of disposing materials on the site was no
    longer available to the company?
    A. That's correct.
    Q. And the cash flow that was being provided to you was the on-
    site person, that was the most expeditious manner to remove the material
    that the EPA designated needed to be removed?
    A. That's correct.
    Q. What other efforts were made to remove tires from the site
    prior to the contempt or to the hearing that took place in May of 1995?
    A. I don't know that we had any--we did not remove any tires
    between, wait I take that back. I believe we did remove something like
    two truckloads of whole passenger tires to ADM. I'm not certain of
    that. I believe we took out a couple but it was not of any great
    significance. Part of the problem we had at that point in time was
    trying to figure out how to effectively use what limited funds we had.
    We hadn't achieved any particular conclusion when we got back into a
    contempt hearing in May.
    Q. Okay. Were you in attendance at that court hearing?
    A. I don't know if I was at that one or not, I missed several
    court hearings.
    Q. Okay. As a result of the activities at that time, wasn't a
    method for disposing as many of the tires as possible on a cost
    effective basis attempted by the company?
    A. Yes. The company informed me that they had finally gotten
    some funds, I believe it was $140,000. We were looking at leasing
    shredding equipment. During I believe it was early July when we were
    just getting bids on leases of shredding equipment, we discovered E-
    ko
    (phonetically) block. I had talked with Randy
    Novack before on another
    matter and so I called him and asked him what that was all about. He
    informed me that he had equipment that could bail tires that could
    construct concrete blocks out of them, that he had contracts for it. We
    didn't take that at face value. We pursued that to verify that there
    were contracts. We verified that there was a contract available in
    Hannibal, Missouri. We contacted the city engineer and spoke with him.
    He agreed that they were planning on doing something right away and
    primarily from that one contract, we entered into an agreement because
    it appeared that we could process at a rate of about $10 per ton net.
    Q. Let's go back. When you used the term $10 a ton net, you're
    referring to that as the net costs of the company to actually remove the
    tires from the site and dispose of them? So that's a reflection or a

    statement, that's the net cost to dispose of a ton of tires from the
    site?
    A. I believe their projection is $7 a ton, we used the figure of
    $10 a ton assuming the equipment would work according to specifications
    exactly.
    Q. Let me hand you what's been marked as Respondent's Exhibit
    No. 1. Mr. Davis, I believe you already have a copy. For purposes of
    identification, Mr.
    Hansen, is Respondent's Exhibit No. 1 a copy of the
    contract that was ultimately entered into?
    A. Yes.
    Q. And was that contract sufficient had E-
    ko (phonetically)
    Systems performed to remove all of the waste tires that were present at
    the Canton plant site?
    A. Yes.
    Q. And when you earlier testified that we verified it, are you
    in fact the person who did most of that verification work?
    A. I contacted not only that company but also some companies
    back east where they had sold and placed equipment that was functioning.
    Q. And so the answer is?
    A. Yes. Most of it, yeah.
    Q. Did you then begin efforts in an attempt to carry out the
    provisions of the contract as of July 28, 1995, the date that's on the
    contract?
    A. Yes.
    MR. GOLIGHTLY: At this point, I should move to admit Respondent's
    Exhibit No. 1.
    HEARING OFFICER: Any objection, Mr. Davis?
    MR. DAVIS: No, there's no objection to this. I believe it's also
    part of one of our exhibits so we would not object to this one.
    MR. GOLIGHTLY: It's part of People's Exhibit No. 2 I believe.
    HEARING OFFICER: Respondent's Exhibit No. 1 is admitted into
    evidence.
    Q. (by Mr.
    Golightly) And the question just before that was did
    you then begin efforts in an attempt to carry out the provisions of that
    contract?
    A. Yes.
    Q. Okay. Who is the principal officer of E-
    ko (phonetically)
    Systems?
    A. Randy
    Novack.
    Q. Was he the primary person you had contact with and further
    tried to coordinate the performance of these blocks?
    A. Yes.
    Q. All right. Let me hand you what's been marked as
    Respondent's Exhibit No. 2 and ask if you can identify that exhibit?
    A. This is a letter that I received from Randy
    Novack.
    Q. And is that a true and correct copy of the letters you
    received?
    A. Yes.
    Q. And does it appear--or can you testify whether or not that
    letter was received by a fax at your office or by a facsimile
    transmission?
    A. I can't remember if it was facsimile or direct mail. I think
    it was facsimile.
    Q. Okay. Is the original of that something that would have been
    kept in the normal course of business of the respondent?
    A. Yes.
    Q. And so this is a part of business records that are retained
    by the respondent?
    A. Yes.
    MR. GOLIGHTLY: I move for admission of Exhibit No. 2.

    MR. DAVIS: The People would object. Mr. Hearing Officer, this is
    hearsay. The fact that a copy or even the original may be retained
    within business files does not make it a business record. I would
    submit from my review of this that it appears to be intended at least
    partially to attempt to impeach one of the witnesses for the State. But
    primarily the objection is that it's hearsay. Secondarily, it's for
    perhaps a legitimate purpose, that being impeachment but an illegitimate
    mess-up.
    MR. GOLIGHTLY: Mr. Wallace, the letter was received in the normal
    course of business and we offer it only for the fact that it had been
    received and that it influenced Mr.
    Hansen's activities and
    responsibilities with regard to the attempt to comply with the
    directions and instructions they were receiving from the State with
    regard to the removal of tires. To that extent, we would urge that its
    admission be completed before the Board.
    MR. DAVIS: Well, having heard that Mr. Wallace, if I could, I
    think that purpose might be achieved through oral testimony without this
    document.
    HEARING OFFICER: All right, thank you. I'm going to admit
    Respondent's Exhibit No. 2.
    Q. (by Mr.
    Golightly) Mr. Hansen, as a result of the letter
    that's dated August 22nd, were there discussions between yourself and
    Mr. Novack in an attempt to deal with the objections of the Illinois
    EPA?
    A. Yes.
    Q. Okay. Did you as the local representative of the respondent
    take all action you felt was inquired, proper, and needed in order to
    make the contract that the company had with E-
    ko (phonetically) Systems
    and the objections as you understood them to make the removal of the
    tires as expeditious and proper as possible?
    A. I don't understand the question.
    Q. Okay. Were you doing everything you could to get the tires
    removed as quickly as possible within the confines of the contract
    that's been marked as Respondent's Exhibit No. 1?
    A. Yes.
    Q. And was that also carried out in light of the matters that
    were raised in Respondent's Exhibit No. 2, the letter from Mr.
    Novack?
    A. Yes.
    Q. What ultimately caused the company not to be able to comply
    with the terms and conditions of the contract such that tires were not
    completely removed on or before September the 29th?
    A. There was a rather vocal dispute going on, whether or not
    this was a real entity, a real source. The State of Illinois decided
    that they were not going to allow us to have a hauling permit which we
    did not receive until after they contracted with
    Tri-Rinse to come in.
    Finally, I got into the middle of it because the Missouri end of the
    contract was E- ko (phonetically) Systems and Mr.
    Novack was concerned
    because of the test nature of it, that it was going to get disrupted.
    Finally, I overrode his concerns and made some contacts myself with the
    Missouri EPA who informed me they had no opposition to our bringing
    these bails into the state. In fact, there was no legal restrictions on
    the bails. Again I confirmed with the city engineer in Hannibal that
    they were green light and finally I believe all that information was
    passed along to the Illinois EPA and once we had the verification from
    the State of Missouri that they had no objection and never had had, that
    we finally were allowed to have a trucking permit. Meanwhile, as far as
    Mr. Novack was concerned, the damage was done. There were some backup
    contracts that he felt were in jeopardy and might fail because of this
    particular problem. I can't testify that they would have, I can only

    testify that he told me that they were in jeopardy and ultimately did
    fail.
    Q. How long did the process take from when trucking permits were
    initially sought until some were finally issued?
    A. I think two months.
    Q. And when were the first trucking permits actually issued?
    A. I don't know.
    Q. Was it before or after the State began its removal process on
    or about October the 1st?
    A. The permits were issued I think I received notification
    simultaneously.
    Q. Hand you what's been marked as Respondent's Exhibit No. 5 and
    ask if you can identify that for the record?
    A. This is a log that security of the plant was asked to keep
    relative to trucks leaving the plant. Actually, this particular one was
    specifically of truck shipments leaving the plant from the
    Tri-Rinse
    Company and it goes from October 6th to March 1st--October 6, 1995 to
    March 1, 1996.
    Q. Okay. Who actually created these records?
    A. The security guards that were sitting at the front gate.
    Q. Was that the primary point of entry and departure from the
    plant site?
    A. Yes.
    Q. Was there any other point of entry or departure from the
    plant site during the period of October 6th through March 1st?
    A. Not normally.
    Q. Would that have required someone to unlock the gate and allow
    exit through some other place or gate?
    A. Yes.
    Q. Okay. What was the duties and responsibilities with regard
    to these security guards in the creation of Exhibit 5?
    A. The security guards had nominal responsibility. Their job
    was to admit and checkout anyone entering or leaving the plant,
    primarily doing that work for handling manufacturing. Relative to the
    amount of traffic going in and out, this would have been, they might
    have had 20 entries and exits a day on a typical day.
    Q. Was it within the normal course of their responsibilities to
    record and log-in the exit and entry of vehicles from the plant site?
    A. Yes.
    Q. And did they keep what's been marked as Respondent's Exhibit
    No. 5 in the normal course of those responsibilities?
    A. Yes.
    Q. And was that ultimately delivered to you for keeping within
    the records of the company?
    A. Yes.
    MR. GOLIGHTLY: At this time, I move for admission of Respondent's
    Exhibit No. 5.
    MR. DAVIS: We would object. This tracking system we believe was
    not in the normal course of business. This is not a business record in
    the sense that it deals with anything over which CIC had control, that
    is, whatever its business was certainly in contrast to let's say a
    receipt record, a daily log of receipts. That would be within the
    business record realm. Here they're simply maintaining surveillance
    over the Agency's State-funded cleanup. Now I realize that much of what
    I'm saying could be interpreted as going toward weight instead of
    admissibility but we're talking about a document that is being entered
    as if it were complete. The issue being it's contested that there were
    any other shipments beyond which might be reflected within Respondent's
    No. 5. So that's the context that you should view my objection.
    Additionally, there's been no indication that the generator of this

    record is unavailable for testimony. We believe that it is hearsay,
    hearsay, hearsay, and I cannot emphasize that enough except by repeating
    it and that it is inadmissible. Thank you.
    HEARING OFFICER: Do you wish to respond?
    MR. GOLIGHTLY: Just that as a business record, all of Mr.
    Davis's
    arguments goes to the weight of what's there. He argues it's hearsay.
    Any business record by definition is hearsay. Business record is an
    exemption to hearsay because it is kept by someone at or near the time.
    Mr. Hansen's testified that these records were made at or near the time
    of the activities that's reported. It would be under the control of the
    respondent to maintain its gate, to know who's coming in, who's going
    out, it's not some unknown stranger. That they were authorized in this
    particular case by the State contractor to come in and out and that they
    were directed to keep this record in a normal course of their affairs as
    to record who was coming in and who was going out. When we get to the
    weight of it, Mr. Davis can certainly make his arguments. But as far as
    a business record of what the security guards at the gate kept track, we
    would urge its admission before the Board.
    HEARING OFFICER: I'm going to deny the admission of Respondent's
    Exhibit No. 5, I don't think the proper foundation has been made.
    Q. (by Mr.
    Golightly) All right. Mr.
    Hansen, were the security
    guards directed to record the entry and exit of trucks through the main
    gate of the Canton plant?
    A. Yes.
    Q. And what's been marked as Respondent's Exhibit No. 5 the
    records that they kept to comply with that request?
    A. This is part of the record, so it would have been kept for
    that request.
    Q. And this is only a portion of those records that is distinct
    as to Tri-Rinse, there were other records of other trucks coming and
    going and whoever came and left out the front gate?
    A. Yes.
    Q. And that you asked them to keep track of whoever came into
    the gate before the State-funded removal started; and after it ended,
    that continues to be the practice to this day when there's a security
    guard there?
    A. That was their primary responsibility.
    Q. And did they make this record at or about the time of the
    events that are recorded thereon?
    A. Yes.
    Q. Did they keep it on a daily basis to your knowledge?
    A. Yes.
    Q. And is the only evidence that this reflects is simply the
    entry or exit of a truck, on a date, on a time, and with a truck and
    trailer number?
    A. Yes.
    Q. And again is it your testimony that that was done in the
    regular course of the business of the respondent?
    A. Yes.
    Q. And that it was the regular course of business of the
    respondent to make such records and to keep them within the corporate
    records?
    A. Yes.
    Q. And that Respondent's Exhibit No. 5 is a true and correct
    copy of that record?
    A. Yes.
    MR. GOLIGHTLY: Again, Mr. Wallace, under section 103.208 we move
    for the admission of Respondent's Exhibit No. 5 as a business record.
    MR. DAVIS: Well, to elaborate upon the objection, obviously it is
    hearsay whether it falls within the business records exception as

    provided by the procedural rule or based upon common practice in this
    code of civil procedure. The focus is what is being recorded in the
    context of what may be the business of the party doing the recording.
    And once again, this type of surveillance was done apparently to track
    the State-funded cleanup. I'm not suggesting it was illegitimate at all
    but it is not the normal course of business for CIC. In accepting
    tires, you make a record. In CIC transporting out tires, you make a
    record. Those things would be certainly admissible as a business
    record's exception. But to keep track of a third party's activity,
    that's not within
    CIC's business. Still we have not, and I'm not
    suggesting it's necessarily a matter of foundation for business records,
    but where you're trying to get this type of information for this
    apparent purpose, the unavailability of the maker of the record is
    sometimes viewed. I'm not suggesting it's crucial to your decision, Mr.
    Wallace, but I am suggesting that there's not been a foundation, there's
    not been anything that shouldn't adequately support this exhibit.
    MR. GOLIGHTLY: Only to the purposes of business, the plant is not
    only a place where waste tires were at, it is a piece of real estate
    upon which the respondent exercises control. As Mr.
    Hansen has already
    testified, anything that came in or out through the gate--the day Mr.
    Figge would have visited, those would have been recorded. If anyone
    else would have showed up, those would have been recorded. Rather than
    burden anyone with all additional information, I think we complied
    easily with the requirements of 103.208.
    HEARING OFFICER: These aren't the actual logs, these are pre-
    printed?
    MR. GOLIGHTLY: These are copies of that actual log as it exist in
    its original form. There is an additional log that would have everybody
    that came in and out. This one has been specifically identified as to
    the entire shipments for ease of use in keeping the business records.
    HEARING OFFICER: All right. I'm still going to deny admission, I
    will take it as an offer of proof. You may appeal the denial if you
    like.
    MR. GOLIGHTLY: Thank you, Mr. Hearing Officer.
    Q. (by Mr.
    Golightly) Mr. Hansen, during the period of time
    during which the State conducted through its contract to remove tires,
    did the respondent continue to make bails and then begin a process in
    removing other whole tires from the plant?
    A. We continued to make bails I believe until the end of
    November at which time there was a serious question of what was going on
    in Hannibal. So we had bails in stockpile. We chose to stop that part
    of the operation. Once the
    Tri-Rinse operation came in, it wasn't
    within our budget to do a complete cleanup with the funds available.
    But we deemed it responsible to start loading whole passenger tires,
    shipping them to ADM which was costing us a net of $25 a ton. It was
    costing us $10 for shipping, $10 for ADM, and approximately $5 a ton to
    load them.
    Q. And do you have any estimate of the number of whole tires
    removed in that fashion?
    A. I do not have that at the tip of my tongue. I sent all the
    ADM invoices to your office. It was a lot more than 30 loads.
    HEARING OFFICER: I would ask that when you give a date, if you
    would please give the year, sir.
    THE WITNESS: Okay.
    Q. (by Mr.
    Golightly) All the dates you just referred to have
    been in 1996?
    A. Yes, sir.
    Q. Okay. When did the company start --
    HEARING OFFICER: I'm sorry, that wouldn't be quite correct. The
    cleanup was completed March of '96, wasn't it?

    MR. GOLIGHTLY: March of '97 actually.
    HEARING OFFICER: No, no, '96.
    MR. GOLIGHTLY: I'm sorry. Yes, it would have begun in 1995.
    HEARING OFFICER: That's why I asked that we put some dates on
    everything.
    MR. GOLIGHTLY: And I've made the point too obvious.
    Q. (by Mr.
    Golightly) This would have been through the fall,
    late fall of 1995, then and near the spring of 1996?
    A. Yes.
    Q. To what point did the company cease removing whole tires from
    the plant site?
    A. Late March of--or excuse me, late February of 1996.
    Q. And did the company at some point determine that it could
    remove the remaining nominal 2-inch chips at a lower cost per ton than
    it was removing the whole tires?
    A. Yes, sir. Out of the process, we were looking at methods of
    removing the 2-inch chips. I believe until December of 1995, early
    January of 1996, we thought we were going to be able to remove them at
    no charge to LoanStar. They came down and inspected, we sent them a
    load which they tested and decided it had too much wire in it. We then
    determined that the best thing we could do is to remove that to minimize
    the total cost of the cleanup between the two parties and had our
    trucking company start emphasis on removing the tire chips, which again
    they did the loading and hauling for $15 a ton and then the disposal
    cost at ADM was $10 a ton. So we were still at $25 a ton net.
    Q. Were you basically on the plant site on a daily basis?
    A. Yes.
    Q. At what point did the State start removing the same nominal
    2-inch chips?
    A. Shortly after we started a true emphasis on that, where I
    believe we were removing about three loads a day, we started running
    into a blockage problem.
    Tri-Rinse stopped most of their other
    operations and just outgunned us. It became a horse race to see who
    could remove them the fastest.
    Q. Did the efforts to remove the whole tires cease at that point
    in an effort to emphasize removal of the nominal 2-inch chips by
    Tri-
    Rinse?
    A. As best I recall, they did not remove any of the materials
    they had been working on and diverted all their trucking to removing
    chips while we were removing chips.
    Q. Would it be fair to characterize that you're loading chips on
    one side of the pile and they're on the other side of the pile?
    A. At a certain point of time, we actually had to give up
    because we couldn't get in, yes.
    Q. Mr. Hansen, you've been present for all the testimony today?
    A. Yes.
    Q. And you've heard the testimony as to the number of tons of
    tires that were removed by the State of 6042.1 tons?
    A. Yes.
    Q. Did you have an opinion as to the total number of waste tires
    that would have been on the site at the beginning of the process in the
    summer of 1995 before the State began any action?
    A. If I remember correctly, and again I didn't review notes
    before I came, I think we had a total of 537,000
    PTE's that we had
    received. We based the receipt of that on an estimate per ton--or per
    truck. I remember passenger tire loads we estimated at 1000
    PTE's per
    truckload which would have been equivalent of about I believe 1200
    tires. I do not remember the number we used for truck tires but we
    found out later that we were way overstated on truck tires.

    Q. Is it your testimony and opinion then that the number of
    tires that had been reported removed between your efforts and the
    company's efforts and those of the State-funded removal exceed your
    estimate of the tires that were on the plant site?
    A. Yes.
    Q. Whatever happened to E-
    ko (phonetically) Systems, did they
    ever perform the requirements that were set forth in the contract
    margins in Respondent's Exhibit No. 1?
    A. No.
    Q. And despite demands having been made on Mr.
    Novack, has he
    failed to comply with the terms and conditions of that contract?
    A. Yes.
    Q. Has it been more than six months since you've had any contact
    with him with regard to that issue?
    A. Yes.
    Q. Despite efforts to contact him to find out what he was going
    to do?
    A. I have made no effort to contact Mr. Novack in the last six
    months.
    MR. GOLIGHTLY: I'll pass the witness on for cross.
    HEARING OFFICER: Off the record.
    (An off-the-record discussion was held)
    HEARING OFFICER: Back on the record. You're finished with direct,
    Mr. Golightly?
    MR. GOLIGHTLY: Yes, thank you.
    HEARING OFFICER: Cross-examination, Mr. Davis?
    MR. DAVIS: Thank you.
    C R O S S E X A M I N A T I O N
    by Mr. Davis:
    Q. Mr. Hansen, on a PTE unit basis, how much was Canton
    Industrial charging to accept waste tires?
    A. I believe we started on a PTE basis in the 25 to 35 cent
    range and by midsummer of '93, we were raising that somewhere around 40,
    45 cents per PTE.
    Q. And would you agree that based upon what you've told us as
    far as record-keeping, the estimation of truckloads and so forth, that
    your 537,000 PTE number is just an estimate?
    A. I would feel comfortable saying plus or minus 10 percent.
    Q. Okay. Now my next few questions are rather obvious and I
    apologize if they sound stupid. But did CIC fail to remove all of the
    tires by the end of 1995?
    A. Yes.
    Q. Okay. And did the plan regarding the bailing of the tires,
    the so-called E-ko (phonetically) blocks, did this plan fail as well?
    A. The plan relative to what we were doing was working.
    However, the overall plan which included the E-ko (phonetically) block
    portion of their contract failed.
    Q. Would you agree that no bail to your knowledge was ever
    transformed into an E-ko (phonetically) block?
    A. No. I will say that no bail that was produced in Canton and
    shipped to Hannibal was shaped into an E-ko (phonetically) block.
    Q. All right. And as to Respondent's Exhibit No. 1, would you
    agree, Mr. Hansen, that Canton Industrial Corporation was not a party to
    that contract?
    A. Yes.
    MR. DAVIS: I have no other questions.
    HEARING OFFICER: Re-direct?
    MR. GOLIGHTLY: No, Your Honor.
    HEARING OFFICER: Thank you, Mr. Hansen, you may step down.

    MR. GOLIGHTLY: Mr. Hearing Officer, at this time what I'm going to
    do is I'm going to tender what's been marked as Respondent's Exhibit No.
    3 and based upon the affidavits that's attached to the front page move
    for its admission. For purposes of the record, let me identify that it
    is a financial statement, been identified by the controller of what is
    now Cyber America related to the costs and losses in operations that
    were conducted at the Canton plant site, and his statement under oath
    that these were normal business records that were kept and included in
    the audit and financial statements of Canton Industrial Corporation and
    based upon his testimony under oath that these are business records,
    we'd ask for their admission and to be included in the record.
    MR. DAVIS: We would not object.
    HEARING OFFICER: All right. Respondent's Exhibit No. 3 is
    admitted into evidence.
    MR. GOLIGHTLY: With that, we'd rest the Respondent's case.
    HEARING OFFICER: There was no 4, right?
    MR. GOLIGHTLY: No, that was a matter that was strictly contingent
    upon the admission of No. 5.
    HEARING OFFICER: Let's go off the record.
    (An off-the-record discussion was held)
    HEARING OFFICER: Back on the record.
    MR. GOLIGHTLY: The last thing would be, I would submit
    Respondent's Exhibit No. 4 which is a summary that has been prepared in
    my office for ease of use in this proceeding and subsequent proceedings,
    if any, that compare in the first call of the items that would have been
    contained in the State's Exhibit No. 8 as to the number of loads were
    billed each day comparing that to the number of loads that were shown
    leaving the plant as reflected in Respondent's Exhibit No. 5, that
    exhibit is not admitted, and showing the difference between those two
    over the course of time from October the 6th, 1995 through March the
    6th, 1996. We offered that only as a summary of other items that are
    already in evidence with the now exclusion of Respondent's Exhibit No.
    5.
    HEARING OFFICER: All right. Mr. Davis?
    MR. DAVIS: Well, this being an offer of proof, we would have
    similar objections and we would address those in our brief.
    HEARING OFFICER: All right. Again, I will deny admission of
    Respondent's Exhibit No. 4, I will take it as an offer of proof and if
    you wish to argue its inclusion to the Board, you may do so.
    MR. GOLIGHTLY: With that then we'll rest our case in chief.
    HEARING OFFICER: Thank you. Any rebuttal?
    MR. DAVIS: No, we have no rebuttal evidence.
    HEARING OFFICER: Do you wish to file briefs?
    MR. DAVIS: Did the citizens leave?
    HEARING OFFICER: They apparently have left.
    MR. DAVIS: Yes, we would follow the normal course and file a
    brief. It wouldn't take that much time.
    HEARING OFFICER: All right. Let's go back off the record.
    (An off-the-record discussion was held)
    HEARING OFFICER: Back on the record. We'll establish the briefing
    schedule. The People's initial brief is due April the 21st, 1997. The
    Respondent's response brief is due May the 2nd, 1997 and People's reply
    brief, if any, May 16, 1997. The Respondent had asked to file a
    response pleading in response to this hearing today. If such a motion
    is to be filed, it should be filed by May 2nd of 1997. It should be in
    a form of motion for leave to file with the attached motion. The People
    will be given an opportunity within the confines of the procedural rules
    to reply to that pleading. Is there anything else, Mr. Davis?
    MR. DAVIS: No, sir.
    HEARING OFFICER: Mr. Golightly?

    MR. GOLIGHTLY: No, sir.
    HEARING OFFICER: All right. Thank you, this hearing is adjourned.
    STATE OF ILLINOIS )
    COUNTY OF MACOUPIN ) SS.
    I, ANGELA K. SIEVERS, a Notary Public in and for the County of
    Macoupin, State of Illinois, DO HEREBY CERTIFY that pursuant to
    agreement between counsel there appeared before me on March 12, 1997 at
    the offices of the Illinois Pollution Control Board, Suite 402, 600 S.
    Second St., Springfield, Illinois, witnesses, who was first duly sworn
    by me to testify the whole truth of their knowledge touching upon the
    matter in controversy aforesaid so far as they should be examined and
    their examination was taken by me in shorthand and afterwards
    transcribed upon the typewriter and said hearing is herewith returned.
    IN WITNESS WHEREOF I have hereunto set my hand and affixed my
    Notarial Seal this 19th day of March, 1997.
    __________________________
    Notary Public--CSR
    #084-004102.
    My Commission expires September 6, 1999.
    ??

    Back to top