R9729c.PDF

1 ILLINOIS POLLUTION CONTROL BOARD

2 IN THE MATTER OF: )

)

3 AMENDMENTS TO REQUIREMENTS ) R97-29

FOR LANDSCAPE WASTE COMPOST ) (Rulemaking - Land)

4 FACILITIES, 35 ILL. ADM. )

CODE 830.203(c) 831.107, )

5 AND 831.109(b)(3) )

7 The following is the transcript of a

8 hearing held in the above-entitled matter, taken

9 stenographically by Caryl L. Hardy, CSR, a notary

10 public within and for the County of Cook and State

11 of Illinois, before Richard McGill, Hearing Officer,

12 at 100 West Randolph Street, Room 9-040, Chicago,

13 Illinois, on the 7th day of August 1998, A.D.,

14 commencing at the hour of approximately 10:10 a.m.

L.A. REPORTING (312) 419-9292

1 PRESENT:

2 HEARING TAKEN BEFORE:

ILLINOIS POLLUTION CONTROL BOARD

3 100 West Randolph Street

Suite 11-500

4 Chicago, Illinois 60601

(312) 814-6983

5 BY: MR. RICHARD R. McGILL, JR.

ILLINOIS POLLUTION CONTROL BOARD MEMBERS PRESENT:

Ms. Kathleen Hennessey

8 Ms. Marili McFawn

Mr. Anand Rao

10 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY MEMBERS

PRESENT:

Mr. Edwin C. Bakowski, P.E.

12 Ms. Judith S. Dyer

Ms. Joyce Munie, P.E.

L.A. REPORTING (312) 419-9292

1 I N D E X

2 Page

GREETING BY HEARING OFFICER. . . . . . . . . . . . 4

4 GREETING BY MS. HENNESSEY. . . . . . . . . . . . . 4

GREETING BY MS. McFAWN . . . . . . . . . . . . . . 4

5 TESTIMONY BY SUSAN GARRETT . . . . . . . . . . . . 12

TESTIMONY BY EDWIN BAKOWSKI, P.E.. . . . . . . . . 14

6 TESTIMONY BY JOYCE MUNIE, P.E. . . . . . . . . . . 22

QUESTION & ANSWER SESSION. . . . . . . . . . . . . 28

7 TESTIMONY BY JOY HINZ. . . . . . . . . . . . . . . 43

QUESTION & ANSWER SESSION. . . . . . . . . . . . . 46

8 TESTIMONY BY CHARLIE PICK. . . . . . . . . . . . . 47

QUESTION & ANSWER SESSION. . . . . . . . . . . . . 54

9 TESTIMONY BY DR. RENUKA DESAI. . . . . . . . . . . 58

TESTIMONY BY JEFFREY GEISS . . . . . . . . . . . . 59

10 QUESTION & ANSWER SESSION. . . . . . . . . . . . . 61

TESTIMONY BY SUSAN FRANZETTI . . . . . . . . . . . 65

11 QUESTION & ANSWER SESSION. . . . . . . . . . . . . 67

CLOSING COMMENTS BY HEARING OFFICER. . . . . . . . 69

E X H I B I T S

15 Marked for

Identification

Hearing Exhibit No. 46. . . . . . . . . . . . . . 19

17 Hearing Exhibit No. 47. . . . . . . . . . . . . . 21

L.A. REPORTING (312) 419-9292

1 MR. McGILL: Let's go on the record.

Good morning. My name is Richard McGill, and I

2 have been appointed by the Illinois Pollution

Control Board to serve as hearing officer in this

3 rulemaking proceeding entitled In The Matter Of:

Amendments to Requirements for Landscape Waste

4 Compost Facilities, 35 Illinois Administrative Code

830.203(c) 831.107, and 831.109(b)(3). The docket

5 number for this rulemaking is R97-29, and today is

the third hearing.

6 Also present today on behalf of the board is

Kathleen Hennessey, to my left, the board member

7 assigned to this rulemaking.

MS. HENNESSEY: Good morning.

8 MR. McGILL: To her left, board member Marili

McFawn.

9 MS. McFAWN: Good morning.

MR. McGILL: And to my right, from the board's

10 technical unit, Anand Rao.

By way of background, in May of 1997 -- excuse

11 me.

(Brief pause.)

12 MR. McGILL: In May of 1997, the proponents,

Dr. Renuka Desai and Susan Garrett, filed a proposal

13 with the board to amend 35 Illinois Administrative

Code 830.203(c). Section 830.203(c) contains

14 location standards for composting areas at certain

landscape waste compost facilities.

15 Generally, the proponents requested that the

board amend that section to prohibit composting

16 areas from being located within one-half mile of the

property line of a hospital, school, athletic field,

17 or public park and to require that existing

composting areas located within that setback

18 distance be relocated.

The proponents alleged that their proposed

19 amendments are necessary because these composting

areas release spores into the air that present risks

20 to human health.

On June 17th, 1998, the board adopted proposed

21 amendments for first notice. The board declined to

adopt the proponents' proposal. Instead, the board

22 proposed that the current one-eighth-mile setback

applied to residences apply to health care

23 facilities, primary and secondary schools and their

associated recreational areas, and preschool and

24 child care facilities and their associated

recreational areas.

L.A. REPORTING (312) 419-9292

1 As proposed, the new setback requirements would

apply only to the compost facility if it is

2 developed after January 1st, 1999, or if it's

permitted composting area is expanded after

3 January 1st, 1999.

The board also proposed corresponding changes

4 to certain permit application requirements.

Please note that sign-up sheets for this

5 proceeding, service and notice lists are located at

the back of the room. Those on the notice list will

6 receive only board opinions and orders and hearing

officer orders. Those on the service list will

7 receive these documents plus certain other filings.

Also at the back of the room are copies of the

8 current notice and service lists. These lists are

updated periodically. I have also placed at the

9 back of the room copies of my hearing officer order

dated June 30th, 1998.

10 Besides witnesses for the proponents and the

Illinois Environmental Protection Agency, if you

11 wish to testify today, you must sign in on the

appropriate sign-up sheet at the back of the room.

12 After any testimony from the proponents and the

Illinois Environmental Protection Agency, we will

13 proceed with the testimony of persons who sign up in

the order their names appear on the sign-up sheet.

14 This hearing will be governed by the board's

procedural rules for regulatory proceedings. All

15 information that is relevant and not repetitious or

privileged will be admitted. All witnesses will be

16 sworn and subject to cross questioning. If you do

not wish to give testimony, you may file written

17 public comments.

As for the order of today's proceeding, we will

18 begin with anyone who would like to testify

regarding the decision of the Department of Commerce

19 and Community Affairs to not conduct an economic

impact study for this rulemaking. Then we will

20 proceed with those who would like to provide

testimony regarding the board's first notice version

21 of the proposed rules. Again, for that testimony,

we will first allow the proponents and the Illinois

22 Environmental Protection Agency an opportunity to

present testimony. After that, we will proceed with

23 the testimony of persons who sign up in the order

their names appear on the sign-up sheet.

24 Anyone may ask a question of any witness. I

ask that during question periods, if you have a

L.A. REPORTING (312) 419-9292

1 question, please raise your hand and wait for me to

acknowledge you. When I acknowledge you, please

2 state your name and any organization you are

representing here today.

3 Please speak one at a time. If you are

speaking over each other, the court reporter will

4 not be able to get your statements down for the

record.

5 Also, please note that any questions asked by a

board member or staff are intended to help build a

6 complete record for the board's decision and not to

express any preconceived notion or bias.

7 Are there any questions about the procedure we

will follow today?

8 Seeing none, I note that the board has no

additional hearing scheduled in this matter.

9 Also, at the end of today's hearing, I will set

a deadline for filing public comments.

10 Would any of the board members present like to

make any remarks at this time?

11 MS. HENNESSEY: I would just like to welcome

everybody and also just note that although we are

12 happy to receive written public comments following

this hearing, we do give more weight to the

13 testimony that's provided to the hearing than we do

to public comments primarily because there is an

14 opportunity for others to ask cross questions about

the testimony.

15 Thank you.

MR. McGILL: Okay. We will now proceed with

16 the matter of the Department of Commerce and

Community Affairs' decision to not conduct an

17 economic impact study for this rulemaking.

As background for this portion of today's

18 hearing, Public Act 90-489, which became effective

January 1st, 1998, requires the board to request the

19 Department of Commerce and Community Affairs, or

DCCA, to conduct an economic impact study on certain

20 proposed rules before adopting those rules.

Within 30 to 45 days of the board's request,

21 DCCA may produce a study of the economic impact of

the proposed rules. The board must make the

22 economic impact study or DCCA's explanation for not

conducting the study available to the public at

23 least 20 days before public hearing on the economic

impact of the proposed rules.

24 The board requested by letter dated January

30th, 1998, that DCCA conduct an economic impact

L.A. REPORTING (312) 419-9292

1 study for this rulemaking. The board's letter

referenced a letter dated January 26th, 1998, from

2 DCCA in which DCCA notified the board that DCCA

would not be conducting economic impact studies on

3 rules pending before the board during the remainder

of fiscal year 1998.

4 In its letter, DCCA explained that it lacks the

technical expertise and the financial resources to

5 conduct these studies. Therefore, in its letter,

the board asked that DCCA notify the board within

6 ten days of receipt of the board's letter if DCCA

intended to conduct an economic impact study for

7 this rulemaking.

The board further stated that if it did not

8 receive this notification, the board would rely on

DCCA's January 26th, 1998, letter as the required

9 explanation for not conducting the study.

The ten days for DCCA to notify the board have

10 expired, and the board did not receive any

notification from DCCA that it will conduct an

11 economic impact study. In fact, the board has

received a letter from DCCA dated June 26th, 1998,

12 stating that for the same reasons, DCCA would not be

conducting economic impact studies on rules pending

13 before the board during fiscal year 1999.

Is there anyone who would like to testify

14 regarding DCCA's explanation for not conducting an

economic impact study for this rulemaking?

15 Seeing no response, we will move on to the next

portion of this hearing.

16 The purpose of this portion of the hearing is

to receive testimony from all interested persons on

17 the merits and economic impact of the first notice

version of the proposed rules. In addition, the

18 board would like to receive testimony on several

issues enumerated in my hearing officer order dated

19 June 30th, 1998. Copies of that hearing officer

order are located in the back of the room.

20 Testimony will also be received on other issues if

relevant and not repetitive.

21 At this point, I would like to ask, would the

proponents like to present any testimony?

22 MS. GARRETT: I would like just to make a

comment.

23 MR. McGILL: Why don't you step up here,

please?

24 (Brief pause.)

MR. McGILL: Why don't we have the court

L.A. REPORTING (312) 419-9292

1 reporter swear you in first?

(The witness was duly sworn.)

2 MS. GARRETT: I want to thank the Illinois

Pollution Control Board for holding public hearings

3 and allowing citizens to provide input on the siting

of commercial compost operations in the state of

4 Illinois. I'm proud to say that the impact and

efforts of every day citizens can make a

5 difference. The process made available through the

Illinois Pollution Control Board and the IEPA made

6 it possible for citizens to take on the challenge of

revising a regulation and turning it into a reality,

7 hopefully, by assembling and stating the facts.

While the final proposal does not go as far as

8 we asked, it is certainly a very significant step in

controlling the siting of compost operations

9 throughout the state.

We have had consistency in the siting with

10 regard to residences, but the new regulation

includes guidelines for primary and secondary

11 schools, health care facilities, and preschool and

child care facilities, as well as the surrounding

12 recreational fields.

On behalf of thousands of citizens throughout

13 the state, I thank those parties who gave us the

opportunity to address this important issue.

14 MR. McGILL: Thank you. If you could just hang

on, do the proponents have any additional witnesses

15 to present today?

MS. GARRETT: No. The people that

16 testified are in agreement with the proposed change

in the regulation.

17 MR. McGILL: Okay. At this point, we will open

it up for any questions that anyone might have.

18 Again, as I mentioned earlier, if you have a

question, please raise your hand and wait for me to

19 acknowledge you. When I acknowledge you, please

state your name and any organization you are

20 representing here today.

Does the agency have any questions?

21 MS. DYER: None at this time.

MR. McGILL: Before the board proceeds with any

22 questions it may have, does anyone else have any

questions for this witness?

23 At this point then, I thank you.

MS. HENNESSEY: Thank you.

24 MS. McFAWN: Thank you for all of your work, as

well as your comments today.

L.A. REPORTING (312) 419-9292

1 MR. McGILL: At this point, I would ask the

agency if they would like to present any testimony.

2 MS. DYER: We do have some brief testimony in

response to the --

3 MR. McGILL: If you would like, you can step up

here. It may be easier for us and the court reporter

4 to hear you.

MS. DYER: Good morning. My name is Judy

5 Dyer. I'm here today on behalf of the Illinois

Environmental Protection Agency. With me on my left

6 is Ed Bakowski. He's the manager of our permit

section for the Bureau of Land at the agency. On my

7 right is Joyce Munie. She works under Ed Bakowski

in the permit section.

8 We have some brief testimony to present today

in response to some of the questions that the board

9 requested information on or responses on in the

board order going to first notice.

10 MR. McGILL: Why don't we swear in the

witnesses first?

11 (The witnesses were duly sworn.)

MR. BAKOWSKI: My name is Ed Bakowski. I

12 manage the permit section in the division of land

pollution control with the Bureau of Land with the

13 IEPA. My section has the responsibility for

implementing and administering the landscape waste

14 composting regulations in Illinois pursuant to

Section 39 of the Illinois Environmental Protection

15 Act. I have served in this capacity for more than

four years. From 1987 to 1984, I was a solid waste

16 unit manager in this section, and prior to that, I

was in the mine pollution control program.

17 In the June 17th, 1998, notice concerning this

proposal, the board asked for testimony on several

18 specific subjects. As the regulating agency for

these rules, the Illinois EPA wants to provide as

19 much information to the board as possible. I wish

to provide testimony on the notice Items 1, 4, and

20 5. My unit manager in the solid waste unit, Joyce

Munie, will be addressing Item 2. Ms. Munie will

21 also be raising some technical concerns we have on

the proposed rules.

22 Regarding Item 1, the technical feasibility and

economical reasonableness of the proposed rule, as a

23 general rule: The agency does not have access to

business and financial information of permittees.

24 The decision of where a site will be made is made by

the owner/operator prior to submitting the

L.A. REPORTING (312) 419-9292

1 application to the agency. Because of this, we do

not feel we can comment on the economic

2 reasonableness of complying with this proposal

either for new or existing facilities.

3 Concerning the technical feasibility, the

Illinois EPA is confident that within the state of

4 Illinois there is ample area to find parcels of land

that can meet the proposed setbacks. It is probable

5 that facilities would find more suitable parcels in

more remote areas, and therefore, transportation

6 costs will be higher as they are farther away from

populated areas where there are the more

7 concentrated markets for both generators and users

of the landscape waste and subsequent composts.

8 If the rule is adopted as proposed, it is clear

-- it needs to be clear in the rule when existence

9 of a facility of concern is established. I have

kind of generally categorized these facilities of

10 concern in one group.

It is necessary to know what date a facility of

11 concern is established to invoke the setback. In

other rules, it could either be based on the date of

12 the permit application or of the final decision, but

we think that date is critical and how that date is

13 established.

There is also the concern that if the setbacks

14 are retroactively applied, the creation of a new

facility of concern from which a setback -- a

15 compost facility must be set back from -- excuse

me. There is also a concern that if setbacks are

16 retroactively applied, does the creation of a new

facility of concern from which a compost facility

17 must be set back cause an existing compost facility

or even a facility permitted after these new rules

18 to be relocated?

Regarding Item 4, the Illinois EPA is not

19 exactly sure without additional definitions of the

types of facilities of concern that the new setback

20 will apply from, but even with a general reading of

the terms, it's clear that the agency has no or very

21 minimal information about the proximity and type of

facilities of concern that are near existing compost

22 facilities.

In an effort to help the board, the agency has

23 prepared and mailed a letter to entities that we

believe have this type of information. We have a

24 list of where these facilities were -- these

facilities -- these notices were mailed, and it was

L.A. REPORTING (312) 419-9292

1 felt that counties and municipalities are the most

involved in zoning, and the compost sites themselves

2 may be aware of their neighbors.

I guess I would submit --

3 MS. DYER: We would like to submit as an

exhibit a letter that was sent.

4 MR. BAKOWSKI: I have ten copies of the letter

we sent and the attached notice and then three lists

5 of copies of who we sent it to. We basically sent

it to the permitted compost facilities, the counties

6 in Illinois, and the Illinois municipality.

MS. DYER: These are three copies of the letter

7 that was mailed and the attachments of the notice

and proposed rules.

8 MR. McGILL: This is three copies of the same?

MS. DYER: Right, and I can give you more. We

9 brought ten with us.

MR. McGILL: Those are extras.

10 MS. DYER: That's three copies of the list.

MR. McGILL: Mailing list?

11 MS. DYER: Mailing list.

MR. McGILL: Okay. I have been handed two

12 documents. The first is a letter from the Illinois

Environmental Protection Agency dated July 30th,

13 1998, regarding Proposed Amendments to Landscape

Waste Compost Facilities request for comment. And

14 attached to that letter is a copy of my hearing

officer order of June 30th, 1998, along with the

15 board's first notice opinion and order of June 17th,

1998.

16 Is there any objection to entering the

described documents as a hearing exhibit?

17 Seeing none, I am marking these documents as

Exhibit Number 46 and entering them as a hearing

18 exhibit.

(Hearing Exhibit No. 46 marked for

19 identification, 8-7-98.)

MS. HENNESSEY: Just a question. Did you

20 provide a copy of this letter to the proponents?

MS. DYER: No. I was going to offer that.

21 MS. GARRETT: Can I ask for clarification?

MR. McGILL: Sure. Just state your name again

22 for the record.

MS. GARRETT: Susan Garrett.

23 I guess I'm just a little confused. It appears

as if the IEPA is asking for -- the retroactive

24 aspect of the proposed regulation I thought was not

supported by the Illinois Pollution Control Board,

L.A. REPORTING (312) 419-9292

1 but it seems as if, you know, the IEPA is concerned

that that is part of the proposed change in the

2 regulation.

MS. DYER: Excuse any confusion, if I could

3 just respond. We are trying to respond to questions

that the board posed in its order.

4 MS. GARRETT: Okay.

MS. DYER: And maybe it will become clearer

5 when Ms. Munie testifies as to what our position is

and remains and why we are providing this

6 information.

MS. GARRETT: Okay. All right.

7 MR. McGILL: Let me just ask one question to

reiterate this for the record. When you were

8 referring to question numbers in your earlier

testimony, you were referring to questions that were

9 set forth in my hearing officer order of June 30th,

1998; is that correct?

10 MR. BAKOWSKI: No. I was referring to the

questions in the June 17th, 1998, notice.

11 MS. HENNESSEY: And those are on Page 7 of the

June 17th order?

12 MR. BAKOWSKI: I believe so.

MS. HENNESSEY: Okay.

13 MR. BAKOWSKI: They are one through five

there.

14 MR. McGILL: Thank you.

MS. HENNESSEY: I just have a question. Are

15 you going to give these exhibit numbers for the

record or what?

16 MR. McGILL: Yes. This is Exhibit Number 46,

the agency letter with the attachments.

17 MS. HENNESSEY: Okay.

MR. McGILL: We left off at 45 last time.

18 MS. HENNESSEY: Okay.

MR. McGILL: And the other document that the

19 agency has handed me is a list of mailing

addresses. These are the persons to whom the agency

20 sent the letter and attachments that are now Exhibit

46.

21 Is there any objection to entering this mailing

list as a hearing exhibit?

22 Seeing none, I'm marking this document as

Exhibit Number 47 and entering it as a hearing

23 exhibit.

(Hearing Exhibit No. 47 marked for

24 identification, 8-7-98.)

MR. McGILL: Would the agency like to proceed

L.A. REPORTING (312) 419-9292

1 with its testimony?

MR. BAKOWSKI: A little further in response to

2 Ms. Garrett's question, we didn't send you a copy of

our letter because all we were trying to do is

3 solicit information for the board. When the board

proposed its notice, it asked specific questions,

4 and the agency feels obligated to provide testimony

as much as we can. In this instance, we didn't feel

5 we had the information, so we tried to find -- think

about who had that information and tried to let them

6 know that the board was seeking that type of

information. And we knew you would be here, so you

7 would see the letter eventually. But it was just an

effort to try to -- try to get as much information

8 to the board because we didn't feel we had that type

of information.

9 MS. GARRETT: Okay.

MR. BAKOWSKI: I think I'm finished.

10 MR. McGILL: Okay.

MS. HENNESSEY: Thank you for your efforts to

11 solicit comments. We appreciate that.

MS. MUNIE: Good morning. My name is Joyce

12 Munie. I manage the solid waste unit of the permit

section division of land pollution control at the

13 Illinois EPA.

I am testifying today in response to the

14 board's request for testimony on specific issues and

other issues, if relevant and not repetitive, on

15 Page 7 in the June 17th, 1998, first notice order in

this matter. I would like to address the second

16 issue identified in the order: If the setbacks

proposed in this first notice order were applied to

17 existing compost facilities, should they apply

immediately or after some period of time expires?

18 The Illinois EPA testified in the original

hearings that these setbacks should not be added at

19 all either prospectively or retroactively. Since

sufficient protection is in place with existing

20 operational and location standards, the Illinois

EPA's position has not changed. But since the

21 board, in its order, has indicated that retroactive

applicability of the setbacks may be under

22 consideration, the Illinois EPA feels compelled to

address that possibility.

23 If the board were to apply the setbacks to

existing facilities, the Illinois EPA would

24 recommend that the applicability be phased in with

the compliance deadline for each existing facility

L.A. REPORTING (312) 419-9292

1 being the current permit expiration date for that

facility.

2 As I testified in the first hearing, the

Illinois EPA does not believe that adding the

3 proposed setback requirement to new facilities will

have any impact on our administrative cost. Any

4 proposed facility would just need to be located

outside any setbacks that are in place at the time

5 of application, and review of setback demonstration

would just be a small part of the overall review of

6 the application.

However, if the additional setbacks are imposed

7 retroactively, the Illinois EPA would expect the

need to permit additional compost facilities to

8 replace the existing facilities required to close.

This would have a short-term impact when the rule is

9 first adopted.

As I stated in the first hearing, if 35 new

10 facilities were needed to replace facilities that

needed to close, it was estimated that this would

11 cost the Illinois EPA between 525,000 and $700,000

within the first couple of years after the rules

12 became effective.

If this requirement were phased in, the

13 Illinois EPA could distribute these costs over a

longer period of time. This estimate was based on

14 an assumption that 50 percent of the facilities

would close. If the information gathered by the

15 board in these proceedings reveal that more or less

of that percentage will close, this cost can be

16 adjusted accordingly.

We also want to mention that under the current

17 compliance schedule, in 35 Illinois Administrative

Code 830.107, the facilities that are continuing to

18 operate under permits issued pursuant to 39(m) of

the act must demonstrate compliance with all of the

19 provisions of Part 830 upon renewal. We expect

these additional requirements to cause some

20 facilities to close anyway based on our experience

with our facilities that have come to that

21 deadline.

As stated by Edwin Bakowski, the remainder of

22 the questions posed by the board need to be

addressed by the industry and communities that will

23 be impacted by the proposed rules.

We want to identify a few concerns about the

24 regulations as proposed by the board.

First, no definitions have been added. What

L.A. REPORTING (312) 419-9292

1 type of facilities are to be included in the scope

of health care facilities? There are many types of

2 facilities that could arguably be included. Is a

nursing home a health care facility? Does a

3 doctor's office fit into this definition? Is a

psychiatrist's office included? Is a mental health

4 hospital included?

We assume that primary and secondary schools

5 would be kindergarten through 12th grade and could

include public and private schools. Is a home where

6 children are home-schooled included?

For preschool and child care facilities, the

7 definition could be very broad. Are all children's

day care facilities included? Would this include

8 in-home day care facilities? Is there a minimum

number of children that must be cared for in the day

9 care? Are church schools included in either of

these definitions? Also, are the associated

10 recreational areas to schools only the contiguous

areas? Are arenas or fields not owned by the

11 schools but leased or used for recreational

activities included? From where is the measurement

12 to the composting area made? In the case of a

health care facility, would the measurement be made

13 to the building or to the property line? Are

buildings that are used for support such as

14 maintenance buildings at health care facilities

included in the setback?

15 For the school and child care facilities with

the associated recreational areas, is the

16 measurement made to the associated area and building

or to the property line? These issues should be

17 addressed in the definitions.

Second, we would like to make it clear that

18 compost facilities must be set back only from

facilities of concern that exist and are used for

19 purposes for which a setback applies on the date

that a complete application for the development of

20 the compost facility or expansion of the compost

facility is submitted to the Illinois EPA.

21 Also, if the board chooses to make the setback

retroactive, it should be made clear on what date to

22 consider the location of the facility of concern

from which the compost facility is set back. A

23 school, day care, or health care facility could have

moved within 660 feet of the compost area after the

24 compost facility was developed and in operation.

Would an existing compost facility use the date it

L.A. REPORTING (312) 419-9292

1 was originally developed or another compliance date

that the board establishes when demonstrating that

2 the existing compost area is appropriately set back

from the facility of concern?

3 That concludes my testimony on behalf of the

Illinois EPA today.

4 MR. McGILL: Does the agency have any

additional testimony they would like to present

5 today?

MS. DYER: That's all the testimony we have.

6 If there are any questions, we could try to respond

to those.

7 MR. McGILL: Okay. Why don't we open it up for

questions?

8 Are there any additional questions for the

agency's witnesses?

9 Seeing none, the board may have a question.

Why don't we go off the record for a moment?

10 (Whereupon, a discussion was held off

the record.)

11 MR. McGILL: Let's go back on the record.

This is a question for Ms. Munie. I believe in

12 your testimony you stated that even if the board

were to adopt the first notice version of the rules

13 as final rules that a facility would have a

compliance date at some point at which it would need

14 to be in compliance with these new setback

requirements?

15 MS. MUNIE: No, with all of 830. But the way

your rule is written, it's clear that it's only

16 facilities that are expanded or developed after a

specified date that have to comply with that new

17 setback, but the rest of 830 must be complied with

upon renewal or expansion.

18 MR. McGILL: So you would view these additional

setback requirements that the board has proposed as

19 a siting requirement?

MS. MUNIE: Yes, for new facilities.

20 MS. HENNESSEY: New or expanded.

MS. MUNIE: New or expanded, yes.

21 MR. McGILL: Thank you.

MS. HENNESSEY: I have a question. Earlier in

22 your testimony, I thought I heard you say that the

agency doesn't support the setbacks even as

23 proposed. Is that correct? I guess, I -- first of

all, is that -- did I understand you correctly?

24 MS. MUNIE: Yes. In our original testimony, we

stated that we don't support the need for it.

L.A. REPORTING (312) 419-9292

1 MS. HENNESSEY: Although I thought in your

later public comments filed after we had kind of

2 discussed this potential compromise proposal that

the agency at least didn't object to it.

3 MS. MUNIE: We don't object to it.

MS. HENNESSEY: And also, on definitions, I

4 would just -- you raised some interesting questions

on definitions. In terms of health care facilities,

5 I would note that the TACO refers it to -- which was

an agency proposal, refers just to health care

6 facilities, and I'm just wondering if the agency has

had experience with that kind of term in other

7 regulations outside of the composting facility and

whether that might aid the agency in applying this

8 regulation without further definitions.

MS. HENNESSEY: By TACO, just for the record, I

9 will make it clear, the Tiered --

MR. McGILL: Tiered Approach to Corrective

10 Action Objectives, Part 742 of 35 Illinois

Administrative Code.

11 MR. BAKOWSKI: Right. In the permit section,

we do utilize some of the TACO information, but we

12 don't routinely go through -- and it's fairly new,

and we haven't -- in our section haven't run across

13 that. We did look back and look at some other

permitting rules that had references, and we found

14 one for hospitals, and I think we have a general

idea what a hospital is, but some of the health care

15 facilities were a little unclear. I guess we can

address some of that. In comment, we can go back

16 and talk to the -- primarily the underground storage

tank program and the remedial project management

17 programs, look at that. They might have had some

experience over the past year in that.

18 MS. HENNESSEY: Okay. I'm a little --

certainly we will have to give some thought to

19 definitions. One of the problems, though, when you

start defining things is then there are questions

20 about the definitions, so it seems there is never an

end. I mean, there are always going to be some gray

21 areas, but it may be that health care facilities and

schools, et cetera need some further definition.

22 I think we were thinking of those terms -- I'm

not speaking for the board, but at least my

23 impression when we think of these terms in kind of

ordinary, common sense usage of those terms to the

24 health care facility would not be, for example, a

drug rehab facility, I mean, because that wasn't the

L.A. REPORTING (312) 419-9292

1 kind of facility that we were necessarily concerned

about. It wasn't really discussed in some of the

2 hearings that we had had. But I guess I would just

encourage you, if you can, to help us to come up

3 with any suggested definitions that would be helpful

for us to consider.

4 MR. ANAND: I would just like to add to what

Ms. Hennessey was saying regarding landfill rules,

5 we use the term schools in setting setbacks from

landfills, so if you have any experience in defining

6 schools under your landfill program, we can look at

that.

7 MS. MUNIE: Actually, the schools was the

easiest one. It's when it went to day care

8 facilities and the associated areas that it became

tougher.

9 MR. BAKOWSKI: Yes, and recreational areas to

schools because a lot of schools, you know, they

10 just -- they just have adjacent areas that might be

a public park that the school doesn't even control

11 or a piece of land that some other entity may own

and they let the schools go out and use those

12 areas.

MR. McGILL: I just had a question. The

13 current regulations have a setback requirement for

residences, and the rule, as far as I know, does not

14 specify a date certain by when the measurement is

made. How does the agency apply the current

15 regulation?

MS. MUNIE: The current regulation, first of

16 all, there is a 200-foot setback and a 660-foot

setback, and it's based on the date that the

17 facility was first permitted or was expanded.

DR. DESAI: Can I respond to the question about

18 the home day care?

MR. McGILL: Maybe we better let the agency

19 respond to the question I just posed, but please

keep your question, and you will have a chance to

20 ask that.

MS. MUNIE: The reference on that is Section

21 830.203(c), and it specifies the 200-foot setback

came from Section 39(m) of the act, and it was when

22 compost facilities were first permitted under

39(m). And then there was a second setback added by

23 the legislature of November 17th, 1991, for a

facility that is developed or the permitted

24 composting area is expanded after 1991 -- November

17th, 1991, so that is set by that date that that is

L.A. REPORTING (312) 419-9292

1 the date you look at, location.

MR. McGILL: Right. I understand that. I'm

2 just saying that as far as I know, the rules don't

specify a compliance date or a date when you would

3 measure that eighth of a mile for a residence. You

were suggesting it should be a time certain like

4 when a permit is -- permit application is submitted

or when a permit is issued.

5 MS. MUNIE: Actually, we believe that for the

rules as written, it would be the date that the

6 application is complete -- made complete to us.

It was the question of if you make it

7 retroactive, you will need to make it clear that --

because we haven't seen a proposal on that yet, you

8 should make it clear that it's a date that's

specified, and that's the date that they look at

9 it.

MR. McGILL: In terms of the existing -- you

10 had mentioned being in compliance with the setback

at the time the permit application was complete.

11 MS. MUNIE: Yes.

MR. McGILL: Is that approach that you just

12 described anywhere in the regulations, the current

regulations?

13 MS. MUNIE: That is under 830.203(d).

MR. McGILL: If I understand (d), that's an

14 operational requirement that you have to, by the end

of each day, have your landscape waste in the

15 windrows?

MS. MUNIE: The only time you are required by

16 the regulations to make an application demonstrating

your location is when you are developing a new area

17 or expanding under your compliance deadlines. So if

you don't have to make an application demonstrating

18 it, the demonstration is not questioned again.

MR. McGILL: Can we just go off the record for

19 a minute?

(Whereupon, a discussion was held off

20 the record.)

MR. McGILL: Let's go back on the record.

21 Just for clarification, if we could get a

response from the agency on what date they feel is

22 the most appropriate to measure or to determine

compliance with the setback.

23 MS. MUNIE: For retroactivity if it's

retroactive?

24 MR. McGILL: No. Forgetting that, as proposed

by the board in its first notice and in the order.

L.A. REPORTING (312) 419-9292

1 MS. MUNIE: We will be glad to do it in written

comment. However, you do have a compliance date set

2 in the rules and --

MR. McGILL: I think I need to specify. By

3 compliance date, I'm not referring to the January 1st,

1999, date where we are talking about the facilities

4 developed or expanded after that date.

You had talked about the permitting process and

5 when you would determine if a proposed facility or

expansion is within a certain distance from a

6 protected facility. Would it be when a permit

application arrives or when it's complete or when a

7 permit is issued or some other time? In terms of

the latter compliance date, what does the agency

8 feel would be the most appropriate time to make that

determination?

9 MS. MUNIE: It's when the application is

complete at the agency.

10 MR. McGILL: Okay. Is that an agency

determination that's made in writing?

11 MS. MUNIE: That an application is complete?

MR. McGILL: Right.

12 MS. MUNIE: Yes.

MR. McGILL: And that is sent to the permit

13 applicant?

MS. MUNIE: It's sent to the permit applicant.

14 We inform them either it's complete or it's

incomplete for these reasons, and we give them the

15 date -- the date that we receive the application is

the date that it's determined approved.

16 MR. McGILL: Thank you.

As you know, these setback requirements apply

17 also to nonpermitted landscape waste compost

facilities. Does the agency have any thoughts on

18 what a compliance date would be for purposes of

siting those nonpermitted facilities?

19 MS. MUNIE: It would be the date where it's

developed or it's expanded because since they don't

20 come in with an application to us, there is no paper

trail. It should be the date of construction for

21 development or construction for expansion.

MR. McGILL: You mean the date the construction

22 commences?

MS. MUNIE: Commences, yes.

23 MR. McGILL: I just have one more question.

You had mentioned where to measure from. The

24 board's first notice opinion and order of Page 37

mentions that the setback should be measured from

L.A. REPORTING (312) 419-9292

1 the nearest edge of the composting area to the

nearest property line of the protected facilities.

2 Does the agency agree with that approach?

MS. MUNIE: The property line is a fine

3 approach as long as -- when a city owns a school and

they own more property than what is the school, but

4 it's contiguous, there is a very hazy line right

there where where does the school property line end

5 and where does the city property begin if it could

be the school property as opposed to the owner of

6 the school which, in general, for public schools is

the city.

7 MS. HENNESSEY: Is that different than -- how

is it currently done for residences? Is it done the

8 same way: Composting area to the property line?

MS. MUNIE: Yes, yes.

9 MS. HENNESSEY: Okay.

MR. McGILL: It is done to the property line of

10 the residence?

MS. MUNIE: It's done to the property line.

11 MR. BAKOWSKI: Usually a residence has a

defined property. When you have schools associated

12 with churches, the church may have all kinds of

pieces of property everywhere, and a school may sit

13 on one part and they might go a half-mile over and

that's their recreational area and things like

14 that.

MS. MUNIE: And in the case of a farm, it's

15 defined as the manicured area around the home.

MS. HENNESSEY: I see.

16 MS. McFAWN: Under what regs?

MS. MUNIE: Under a determination --

17 MR. BAKOWSKI: I think that the agency's view

is residences at farms are -- you know, a farm might

18 be 9,000 acres, but what we consider the residence

of a farm is the area where the house is where

19 people live, and usually they manicure a certain

area around there. They maintain landscaping

20 MS. McFAWN: So that's how you have interpreted

it for those?

21 MR. BAKOWSKI: Right.

MS. McFAWN: I see.

22 MR. McGILL: Are there any other questions for

the agency?

23 If you would just state your name for the

record, please.

24 DR. DESAI: My name is Renuka Desai. I'm from

Lake Forest, Illinois, and I just have a question

L.A. REPORTING (312) 419-9292

1 for the EPA.

How many violations do you need to revoke the

2 permit of the existing facility?

MS. MUNIE: The Illinois EPA does not have the

3 authority to revoke a permit.

DR. DESAI: So even if they have 100 violations,

4 200 violations, still we can't do anything about

it?

5 MS. MUNIE: We can enforce against them, and

through an enforcement action, a permit can be

6 revoked by the board.

MR. BAKOWSKI: The decision to pursue

7 revocation of a permit is based on the history of

the facility, the number of violations, but more

8 important than the number is the severity and the

potential threat to human health and the

9 environment. So one violation that's real serious

might cause a revocation where 100 violations of

10 other provisions that don't have a direct impact on

human health and the environment may not.

11 MS. MUNIE: But these violations must be

adjudicated in front of a court where a determination

12 must be made that we are right in the violation that

we have cited.

13 DR. DESAI: Okay. Thank you.

MR. McGILL: Go ahead and state your name,

14 please.

MS. BUCKO: My name is Chris Bucko, and I was

15 curious. It appears that Ms. Munie was indicating

that the agency's position was that this -- these

16 proposed regulations would affect only developmental

permits or expansion permits, and I was interested

17 to hear how a renewal would be handled.

MS. MUNIE: Under the regulation as written, it

18 would just be facilities that expanded their

composting area or newly developed facilities after

19 a certain date. And renewals would be handled the

same way renewals are handled now. If a facility

20 was developed before 1991, it has a 200-foot setback

from a residence; whereas, if it was developed after

21 November 17th of 1991, there is a 660-foot setback

to a residence. This would be handled similarly.

22 MR. McGILL: Thank you. Ms. Bucko, just for

the record, you are with the Attorney General's

23 office?

MS. BUCKO: That's correct.

24 MR. McGILL: Thank you.

Are there any other questions for the agency's

L.A. REPORTING (312) 419-9292

1 witnesses?

Seeing none, I'm just going to go off the

2 record for a moment.

(Whereupon, a discussion was held off

3 the record.)

MR. McGILL: Let's go back on the record.

4 Seeing no further questions for the agency's

witnesses, I would like to thank the agency for

5 coming here today and presenting this testimony.

MS. DYER: You are welcome.

6 MR. McGILL: Let's go off the record for a

moment.

7 (Whereupon, a discussion was held off

the record.)

8 MR. McGILL: Let's go back on the record.

At this point, we are going to turn to the

9 testimony of those who have signed up to testify

today. Again, we will proceed in the order in which

10 their names appear on the sign-up sheet.

At this point, I would ask Ms. Joy Hinz if she

11 would step up.

(Brief pause.)

12 MR. McGILL: Why don't we go ahead and have the

court reporter swear you in?

13 (The witness was duly sworn.)

MR. McGILL: I just want to make sure that you

14 again state your name and the organization you are

representing here today and your position with that

15 organization.

MS. HINZ: My name is Joy Hinz, and I am with

16 Will County. We are responsible for enforcing the

Environmental Protection Act and the regulations set

17 forth, and I am here to make a statement prepared by

our office in regards to two of the permitted

18 facilities, as well as the proposal.

MR. McGILL: Excuse me. Would you just speak

19 up a little? I'm having a hard time hearing you.

MS. HINZ: Oh, sure.

20 MR. McGILL: Thank you.

MS. HINZ: I will go ahead and read the

21 statement.

The Will County Land Use Department Waste

22 Services Division would like to provide comments

with regard to the technical feasibility of

23 requiring a one-eighth mile setback for landscape

waste compost facilities from health care

24 facilities, from primarily secondary schools and

their associated recreational areas, and preschool

L.A. REPORTING (312) 419-9292

1 and child care facilities and their associated

recreational areas.

2 The Pollution Control Board has concluded,

quote, no relationship between exposure to certain

3 levels of A. fumigatus spores and adverse health

effects has been demonstrated. This was stated in

4 the opinion and order of the board, proposed rule,

first notice, Page 5.

5 In addition, the board further concluded that

the concentration of A. fumigatus spores falls to

6 background within approximately 500 feet of the

composting area quoted in the opinion and order of

7 the board, proposed rule, first notice, Page 5.

Given these conclusions, there appears to be no

8 imminent threat to cause the board to apply the new,

more stringent setback requirements either

9 prospectively or retroactively.

If the more stringent setback requirements must

10 be imposed, the board should only apply them

prospectively to any composting area developed or

11 expanded no earlier than January 1st, 1999.

The Will County Land Use Department Waste

12 Services Division is not aware of any documented

adverse health effects resulting from exposure to

13 A. fumigatus within Will County. However, if more

stringent setback requirements are imposed

14 retroactively, at least one permitted compost site

in the county would be closed: Referenced, Land and

15 Lakes in Romeoville.

Loss of this facility would inevitably result

16 in an increased transportation cost for those

residents using this site, increased open dumping

17 and open burning, illegal dumping of landscape waste

in landfills, and loss of sustainable market for

18 landscape waste compost.

In summary, first, there appears to be no

19 imminent public health threat to require a

one-eighth-mile setback. Secondly, retroactively

20 applying the one-eighth mile setback would result in

loss of permitted composting capacity within Will

21 County and a sustainable market for landscape waste

compost in this area.

22 That's it.

MR. McGILL: Thank you. Are there any

23 questions for this witness?

Seeing none, I'm just going off the record for

24 a moment.

L.A. REPORTING (312) 419-9292

1 (Whereupon, a discussion was held off

the record.)

2 MR. McGILL: Let's just go back on the record.

We just have one question. Can you provide any

3 testimony on the anticipated economic impact or

economic effect of the first notice version of the

4 proposed rules?

MS. HINZ: We do not have any evidence at this

5 time.

MR. McGILL: Okay. Thank you.

6 Are there any other questions for this

witness?

7 MS. McFAWN: I had just a few background

questions. Maybe I missed it, but you are with Will

8 County?

MS. HINZ: Yes.

9 MS. McFAWN: And your position with Will County

is?

10 MS. HINZ: Environmental enforcement officer.

We are a -- at the moment we are not, but we are

11 normally a delegated county with the Illinois EPA.

MS. McFAWN: And your statements today were

12 made on behalf of Will County?

MS. HINZ: Correct.

13 MR. McGILL: Any further questions for this

witness?

14 Seeing none, we would like to thank you for

being here today.

15 MS. HENNESSEY: Thank you.

MS. HINZ: Thank you.

16 MR. McGILL: We will now proceed with the

testimony of Mr. Charlie Pick.

17 (Brief pause.)

MR. McGILL: If the court reporter would swear

18 in the witness, please.

(The witness was duly sworn.)

19 MR. McGILL: Again, before you begin, if you

would just please state your name and identify any

20 organization you are representing here today and

your position with that organization.

21 MR. PICK: Certainly. My name is Charlie

Pick. I am vice-president of Organics Management

22 Company. It's based in Chicago.

First, I would like to say for the record that

23 the first notice recommendation by the board to

apply the setback requirements to new or expanded

24 facilities I think is entirely reasonable. It's

consistent, I think, with the intent -- original

L.A. REPORTING (312) 419-9292

1 intent of the setback requirements of the original

EPA regulations.

2 However, I do agree with Joyce Munie that a lot

of work should go into looking at the definitions of

3 the proposed additional facilities, health care

facilities, schools and so forth that would be

4 affected by this rule.

About a year ago, I think, in this room, I gave

5 testimony about the economic impact as to the

retroactive application of this rule, and I'm not

6 going to rehash that other than to say that I

maintain that a retroactive application of this rule

7 would be pretty devastating to the composting

infrastructure in the state.

8 With respect to a prospective application, at

the end of your first notice, you asked for

9 testimony with respect to prospective and

retroactive application of the rule, especially with

10 regard to economics, and based on DCCA's comment

that they are not able to provide it, I thought that

11 my testimony might be helpful in looking at the

prospective side of it.

12 With a prospective application, what I

understand that to mean would be an application of

13 the rule at the time of permit expiration or renewal

sometime in the future, and I do think that a

14 prospective application would at least give an

operator the opportunity to minimize the loss of

15 investment by having some ability to plan for that

date when their permit expires. But obviously,

16 there are a number of different dates across the

whole variety of facilities that are currently

17 permitted when that would occur. It could be two

months from now, two days from now, or two years

18 from now, so the impact could range from devastating

to at least, you know, minimal, although site

19 improvement costs generally are completely lost when

a facility is closed simply because you can't sell

20 those improvements typically to a new property

purchaser. They don't place any economic value on

21 those.

But aside from the economic implications of a

22 closure sometime in the future, I think it's more

important to look at the effect on the composting

23 capacity in the state of Illinois if that were put

into effect prospectively. Essentially, the

24 facilities that would be affected by this rule would

be unlikely to relocate in any kind of close

L.A. REPORTING (312) 419-9292

1 proximity to where they are now simply because if

the rule affects them, it's quite likely that they

2 are in a densely populated area where it would be

almost impossible to find another piece of property

3 nearby that would find -- that would be suitable for

composting. Lake Forest did an investigation to try

4 and move their site, and they couldn't find anything

with any kind of reasonable distance -- reasonable

5 proximity to the original site.

And to give you an illustration of the problem

6 in relocating, if you look at a five-acre composting

facility and then look at a 660-foot setback around

7 that facility, if you look at that all told, you are

looking at a 73-acre block of land that has --

8 effectively has to have nothing in it, so to speak,

in terms of applicable receptors as far as the

9 setback requirements are concerned. So 73 acres of

land, that's 660 feet all around plus the size of

10 the facility. That is a huge piece of land in any

kind of urban environment where essentially nothing

11 is going on.

In addition to that, typically operators look

12 for more than 660 feet in the prevailing wind

direction where there is no receptor at all, whether

13 that be -- forget about the statutory requirements,

but in terms of any sort of office building or any

14 other sensitive receptor that would object to the

facility, they are looking for 1,000 feet, 1200

15 feet, 1500 feet where there is nobody there. So the

likelihood of relocating a facility in close

16 proximity to the affected facility that was closed

down under this rule is really, really, really

17 slim.

MS. HENNESSEY: Can I just interrupt you

18 because I think there may be unwitting confusion

that we have created about the terms prospective and

19 retroactive. I think I speak for the board. I

don't officially speak for the board. My

20 understanding when we talked about this

prospectively -- applying it prospectively, that

21 meant it would only apply to facilities -- to either

new facilities or facilities that were expanding.

22 MR. PICK: Okay.

MS. HENNESSEY: What you seem to be talking

23 about when you use the word prospective is having

this requirement apply to existing facilities

24 already sited sometime in the future, so either when

their permits come up for renewal or at some set

L.A. REPORTING (312) 419-9292

1 date.

MR. McGILL: Even if they don't expand.

2 MR. PICK: Right.

MS. HENNESSEY: Okay. So what you have been

3 addressing now is the application of these setbacks

to existing facilities?

4 MR. PICK: Right. Maybe I misunderstood.

MR. McGILL: That is one of the questions we --

5 MR. PICK: I thought that was part of the

question.

6 MS. HENNESSEY: We did pose that question, but

I just wanted to make sure that you don't have a

7 problem with this proposal as it applies to only new

or expanded facilities.

8 MR. PICK: That's correct.

MS. HENNESSEY: Okay. Thank you.

9 MR. PICK: Yeah. I'm just looking at the

existing facilities, and I'm trying to give you some

10 economic basis.

MS. HENNESSEY: Which is exactly what we asked

11 for. Thanks.

MR. PICK: Okay.

12 So given that the facilities affected would

close, it would be unlikely to relocate in any kind

13 of close proximity to their original location. What

you are left with in a scenario like that, in my

14 estimation, would be not unlike what the solid waste

experience -- solid waste industry experienced under

15 Subtitle D, which is that a lot of the small, local

landfills have no choice but to close. And what was

16 left was essentially a transfer station

infrastructure, which is not a bad thing, but it was

17 a transfer station that took this solid waste from

more densely populated areas out to larger, more

18 remote landfills, and I don't see the composting

business going in any other direction under this

19 scenario. So many of these composting sites would

likely become transfer stations, or some of them

20 would just close completely and other transfer

stations would open.

21 The net result, I believe, is that you would

have two things. One: You would have larger, more

22 remote composting facilities just like you have

larger, more remote landfills now. And number two:

23 The transportation costs to get the materials from

the populated areas to those remote facilities would

24 have to be borne by the generators, and when I say

generator, it's the taxpayer or a landscaper which

L.A. REPORTING (312) 419-9292

1 would, in turn, pass that cost on to the homeowner.

So ultimately, the citizens would pay the additional

2 cost of transportation and processing to move the

material from the transfer station and over to the

3 remote composting facilities.

Transfer stations mean additional handling,

4 additional processing, and then the trucking in both

directions because not only would you transfer raw

5 material out to the sites, but you would have to

bring the compost back to the urban areas in order

6 to make it marketable because if you are 60 miles

from downtown Chicago or 100 miles from downtown

7 Chicago, it is quite difficult to market finished

product in that area of the world.

8 So in conclusion, I believe that if the rule

were applied to facilities at the time of permit

9 expiration or renewal that that would result in most

of those facilities closing down and considerable

10 additional costs to the homeowner in terms of

disposal fees for the yard waste that they

11 generate.

MS. HENNESSEY: We had a lot of testimony at

12 the first hearing about how the half-mile proposed

setback would be a problem. As I understand what

13 you are saying today, even an eighth-of-a-mile

setback is going to cause just -- would it cause the

14 same number of facilities to close, would you

think?

15 MR. PICK: Well, it's going to be fewer than a

half a mile for sure, but there are a number of

16 facilities -- because schools in particular are --

there are a lot of facilities that are not very far

17 from schools, and so they would be closed down. I

mean, I know that there was testimony even to the

18 effect of the rule on the eighth-of-a-mile setback

for existing facilities, and a lot of them would be

19 affected. I believe Crystal Lake would be, village

of Winnetka, the city of Evanston. I don't have a

20 complete list, but a lot of facilities. So to the

extent that each one of those closes, then those

21 costs are going to be higher.

MR. McGILL: Are there any questions for this

22 witness?

Go ahead and state your name.

23 MS. GARRETT: Susan Garrett.

In regard to the economic impact, I think we

24 testified originally that other communities make

allowances for the cost of transporting yard waste,

L.A. REPORTING (312) 419-9292

1 and that is picked up by taxpayers. As far as I

know, Highland Park is a good example. There have

2 not been any negative repercussions on that issue at

all, and I think it's important to discuss and to

3 debate the idea of having these sites farther away

from the public and then having the transportation

4 cost built into it because I think in the long run,

that's what the citizens do want, and I think in the

5 long run it will be a much healthier industry for

the composting business.

6 MR. PICK: Was that a question or a comment?

MS. GARRETT: I just wanted to comment on what

7 you said regarding the extra dollars that taxpayers

would pick up.

8 MR. McGILL: Let me just clarify, Ms. Garrett

is still under oath, and there will be an

9 opportunity to provide additional testimony since

Mr. Pick is the last person to sign up. So if you

10 have any specific questions for this witness, why

don't we pose those now? Then everyone will have a

11 chance to provide any additional testimony, if they

would like, a little later.

12 Are there any questions for this witness?

Seeing none, I just have one question. I was

13 wondering if you could provide any testimony on the

anticipated economic effect of the first notice

14 version of the proposed rules. And just for

clarity, as proposed at the first notice, the new

15 setback requirements would apply only to a compost

facility if it is developed after January 1st, 1999,

16 or if it's permitted composting area is expanded

after January 1st, 1999.

17 MR. PICK: I think the economic impact under

that notice would be minimal because the expansion

18 is voluntary and you know what the rules are, and if

it doesn't make economic sense, you don't do it.

19 As far as a new facility, it's the same thing:

You go in with your eyes open and make that decision

20 MR. McGILL: But a facility -- if someone did

want to develop or expand a facility, what sort of

21 economic impact do you think these new rules would

have?

22 MR. PICK: I think what you are more likely to

see is larger, more remote facilities because the

23 more stringent the setback requirements, the harder

it is to site these facilities. But again, the

24 developer or owner of a facility that would be new

or expanded would not undertake that investment

L.A. REPORTING (312) 419-9292

1 unless they felt it warranted. So I think it's -- I

don't see any net impact on the industry as a result

2 of it or on cost.

MR. McGILL: Are there any other questions for

3 this witness?

Seeing none, I would like to thank you for

4 being here today and providing that testimony.

At this point, I would ask if there is anyone

5 who would like to provide testimony at this point.

I see two individuals. I saw Dr. Desai's hand

6 first, so Dr. Desai, if you would step up here,

please.

7 (Brief pause.)

MR. McGILL: Why don't you go ahead and let the

8 court reporter swear you in first?

(The witness was duly sworn.)

9 MR. McGILL: If you would just state your name

for the record.

10 DR. DESAI: Okay. My name is Renuka Desai, and

I just want to make a statement. I would like to

11 thank the board for taking their time and looking

into this issued because nobody was ready to listen

12 to this. You have invested so much time and you

have come to some kind of reasonable conclusion, and

13 I want to thank you, and I would strongly support

whatever decision the board will make because I know

14 that you will make the decision in good faith.

Thank you.

15 MR. McGILL: Thank you.

Were there any questions for Dr. Desai?

16 Seeing none, I will just note that

Dr. Desai was one of the proponents, along with

17 Susan Garrett.

I believe there was one other person who

18 indicated they would like to provide testimony. If

you would step up, you are welcome to sit or stand

19 as you wish.

MR. GEISS: Okay.

20 (Brief pause.)

MR. McGILL: We'll go ahead and have the court

21 reporter swear you in.

(The witness was duly sworn.)

22 MR. McGILL: Before you begin, if you would

state your name and any organization you are

23 representing here today and your position with that

organization.

24 MR. GEISS: My name is Jeffrey Geiss. I work

for CDT Landfill in Joliet, and I am operations

L.A. REPORTING (312) 419-9292

1 manager at the Joliet landscape waste compost

facility. I have been the manager there since

2 1992.

First, CDT would like to support the positions

3 of the Illinois Environmental Protection Agency and

the Will County land use department. The only -- we

4 have talked to our engineers and we do not feel that

the setback requirement will affect our facility

5 today, but the questions that we were concerned

about would be that if new child care facilities or

6 health care facilities were located within the

setback at a later time, if this would affect our

7 permit.

The other question we had was if a permit

8 renewal was considered in an expansion, and I think

that question was answered earlier.

9 We also believe that this regulation could, in

fact, increase illegal dumping of yard waste in

10 areas where the compost facilities would be

affected.

11 Thank you.

MR. McGILL: I just wanted to ask -- was that

12 the extent of your testimony?

MR. GEISS: Yes.

13 MR. McGILL: I just wanted to ask a question.

In terms of what the board has proposed at first

14 notice, the new setback requirement would apply only

if a facility is developed or expanded after

15 January 1st, 1999.

MR. GEISS: Correct.

16 MR. McGILL: The organization you represent, do

you have any -- do they have any thoughts on what

17 the board has proposed at first notice in terms of

economic impact or the merits of the first notice

18 proposal?

MR. GEISS: As I have read this and as I

19 understand it, it would not affect us today. There

was some question, I believe, to the effect of

20 retroactive. We still don't believe a retroactive

would affect us.

21 Currently, we are a fairly rural area. There

is farms to the north. The facility is sited on top

22 of a closed landfill. There are not many other uses

for that landfill, so if it was a retroactive and at

23 a later date one of these facilities that required

an eighth-mile setback was located within that

24 eighth mile and that would displace the facility,

that would be an economic hardship for us because we

L.A. REPORTING (312) 419-9292

1 do not feel that we could relocate this site and

operate the facility at a profit because of the

2 current competitive economic state of the industry.

MR. McGILL: Okay. I would just like to note

3 one thing for clarification. This is on Page 37 of

the board's first notice opinion and order. It's in

4 a footnote. A similar concern that you just

expressed was raised by the city of Lake Forest, and

5 the board clarified in that footnote, and I will

just quote: To clarify, the proposed first notice

6 amendments to 35 Illinois Administrative Code

830.203(c) are siting requirements. A compost

7 facility sited in compliance with these requirements

would not violate them because a health care

8 facility, for example, is thereafter constructed

within one-eighth of a mile.

9 MR. GEISS: Thank you. That clarifies my

question then.

10 MS. HENNESSEY: Maybe what you are suggesting

to us is that needs to be set forth in the

11 regulation itself?

MR. GEISS: Well, as I read the regulation,

12 that was a question that came to mind, and me being

a layman and an operations manager and not a lawyer,

13 that's the questions that popped into my mind.

MS. HENNESSEY: Does your facility have any

14 current plans to expand?

MR. GEISS: Our site is approximately 20 acres,

15 and currently, it meets all the needs for our

customers, so we don't have any immediate future

16 plans to expand the site.

MS. HENNESSEY: Assuming you were to expand,

17 would this regulation affect you?

MR. GEISS: Today it wouldn't because today

18 there is corn fields to the north of us. And if

that cornfield, for example, is developed and a

19 facility of such nature that would require a setback

was placed within that setback, then that could

20 affect an expansion.

MS. HENNESSEY: How large is your site? You

21 said it's 20 acres?

MR. GEISS: Approximately 20 acres.

22 MS. HENNESSEY: Okay. Thank you.

MR. GEISS: Thank you.

23 MR. McGILL: Are there any other questions for

this witness?

24 Seeing none, let's just go off the record for a

moment.

L.A. REPORTING (312) 419-9292

1 (Whereupon, a discussion was held off

the record.)

2 MR. McGILL: Let's go back on the record.

I would like to thank you for participating

3 today.

MR. GEISS: Thank you for having the hearing.

4 MR. McGILL: Is there anyone else who would

like to testify today?

5 MS. FRANZETTI: I do have a question based on

the last comment made by you on your footnote if I

6 could ask that

MR. McGILL: Maybe I could explain the context

7 of this proceeding. The people you see before you

up here are not the entire board, so we can't really

8 speak on behalf of the board.

MS. FRANZETTI: I understand.

9 MR. McGILL: The board speaks through its

written opinions and orders, but we certainly

10 welcome comments and questions.

MS. FRANZETTI: I will put it in the form of a

11 comment.

MR. McGILL: In the form of public comment,

12 that would be fine.

MS. FRANZETTI: I should not have called it a

13 question.

My name is Susan Franzetti. I'm with Gardner,

14 Carton, & Douglas here in Chicago.

The confusion that I think starts getting

15 created when you --

MR. McGILL: I'm sorry. Are you posing a

16 question? We don't have a witness right now.

MS. FRANZETTI: No, no. I just want to make a

17 comment

MR. McGILL: If you are testifying, we need to

18 get you sworn in, so why don't you step up, if you

don't mind?

19 MS. FRANZETTI: I will stand right here. It's

not going to take that long.

20 MR. McGILL: Okay. Why don't we swear in the

witness?

21 (The witness was duly sworn.)

MR. McGILL: Could you just again state the --

22 MS. FRANZETTI: Susan Franzetti for Gardner,

Carton, & Douglas for the city of Lake Forest.

23 MR. McGILL: Thank you.

MS. FRANZETTI: I think the confusion that

24 starts to get created -- and I just want to point it

out. I know we can address this in comments, but I

L.A. REPORTING (312) 419-9292

1 think it just got underscored by the exchange with

the last witness, and that is that the footnote on

2 Page 37 does clarify things with respect to the

proposed first notice regulation that the setback is

3 a siting requirement and, therefore, for an existing

facility. If a protected facility or facility of

4 concern -- we have used a few different terms for

those today -- gets located within that new setback

5 requirement, that wouldn't cause the facility to

close down. I think that's clear.

6 However, when you start talking about

retroactivity, that's when I think it becomes very

7 unclear because let's just assume if you made this

retroactive and at some point, let's say at renewal,

8 let's assume that, an existing facility violates the

new revised setback requirement, I believe they

9 would have to close down. However, under this

footnote statement, an existing facility shouldn't

10 have to close down if a protected facility comes to

be located within the setback. It doesn't seem to

11 make sense. It doesn't add up in terms of how this

footnote is written and then when you start to talk

12 about retroactivity because, in fact, then unless

this footnote were to then change, you have this

13 incongruous situation whereby an existing facility

that wouldn't meet this proposed new setback

14 requirement would have to close, but a new one that

met it at one time but now something locates within

15 that setback -- one-eighth-of-a-mile setback would

not have to close.

16 I can't rationalize that, so I just wanted to

make that comment, and I know we can address that in

17 public comment, but I think that's why you have some

of this uncertainty about what happens then with an

18 existing facility. I think it's because of the

specter of retroactively when you combine it with

19 this footnote.

Thank you.

20 MR. McGILL: Thank you. And I just would like

to ask, is there anyone who has a question for this

21 witness?

MS. HENNESSEY: Ms. Franzetti, just to clarify

22 your comment, are you raising the similar issue that

the agency raised which is suppose we apply this a

23 retroactively. Do we need to basically go back and

look at when the facility was originally sited and

24 see if in one one-eighth of a mile there were any of

these protected facilities? Is that the inquiry

L.A. REPORTING (312) 419-9292

1 that we should undertake? Or will it be looking at

the time of renewal? At the time that a permit is

2 renewed, do we need to then determine if there are

any protected facilities within the one-eighth-of-a-mile

3 setback?

MS. FRANZETTI: It's certainly a related point,

4 but it's not the same point that I think I'm trying

to make. There would seem to be -- when you get

5 into retroactivity, there would seem to be an

arbitrariness introduced between how the regulation

6 works for a brand new facility that only has to meet

it at the beginning and then it can be violated

7 afterwards by things moving in to its area versus

the existing facility. That's the point I'm trying

8 to make. They are related points. I'm not sure

they are identical.

9 MS. HENNESSEY: Okay. I understand. Thank

you.

10 MR. McGILL: Are there any further questions

for this witness?

11 Seeing none, I will ask again, is there anyone

else who wishes to testify today?

12 Seeing no response, I will move on to a few

procedural matters to address before we adjourn.

13 Why don't we go off the record for a moment?

(Whereupon, a discussion was held off

14 the record.)

MR. McGILL: Let's go back on the record.

15 Public comments must be received by the clerk

of the board no later than 4:30 on September 4th,

16 1998. The mailbox rule does not apply to this

filing.

17 Anyone may file public comments. These public

comments must be filed with the clerk of the board.

18 Public comments should reference the docket number

of this rulemaking, R97-29, as well as the name,

19 address, and affiliation, if any, of the

commentary.

20 If you are on the service list, your public

comment must be simultaneously delivered to all

21 persons on the service list. You should contact me

or the clerk's office to make sure you have the

22 current service list.

Copies of the transcript of today's hearing

23 should be available at the board here in Chicago by

August 12th, 1998. At the present time, we cannot

24 put transcripts on the board's home page on the

Worldwide Web. Accordingly, for the time being, we

L.A. REPORTING (312) 419-9292

1 will provide an electronic copy of this transcript

on disk free of charge.

2 Are there any other matters that need to be

addressed at this time?

3 MS. HENNESSEY: I would just like to, again,

thank everyone for participating. I wish we had as

4 much public participation in all of our

rulemakings. Some great points have been raised,

5 and we would take them back and give them some

thought and look forward to your public comments.

6 MR. McGILL: Thank you.

Are there any other matters that need to be

7 addressed at this time?

Seeing none, I would like to also thank

8 everyone for their participation today. This

hearing is adjourned.

9 (Whereupon, the hearing was adjourned

at 11:40 a.m.)

L.A. REPORTING (312) 419-9292

1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF COOK )

4 I, CARYL L. HARDY, a Certified Shorthand

5 Reporter doing business in the County of Cook and

6 State of Illinois, do hereby certify that I reported

7 in machine shorthand the proceedings at the hearing

8 of the above-entitled cause.

9 I further certify that the foregoing is a

10 true and correct transcript of said proceedings as

11 appears from the stenographic notes so taken and

12 transcribed by me.

17 CSR No. 084-003896

19 SUBSCRIBED AND SWORN TO

before me this ____ day

20 of ___________, A.D., 1998.

21 _____________________________

Notary Public

L.A. REPORTING (312) 419-9292