R98009A.PDF

1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

4 IN THE MATTER OF:

5 MUNICIPAL SOLID WASTE

6 LANDFILL (MSWLF) RULES:

7 AMENDMENTS TO 35 ILL. ADM. CODE R98-009

8 811, 813 AND 848

13 Proceedings held on October 27, 1997, at

14 10:10 a.m., at the Illinois State Capitol Building,

15 Room 400, Springfield, Illinois, before the

16 Honorable Marie

Tipsord, Hearing Officer.

21 Reported by: Darlene M.

Niemeyer, CSR, RPR

CSR License No.: 084-003677

23 KEEFE REPORTING COMPANY

11 North 44th Street

24 Belleville, IL 62226

(618) 277-0190

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Belleville, Illinois

1 A P

P E A R A N C E S

Board Chairman, Claire A. Manning

Board Member G. Tanner

Girard, Ph.D.

Mr. John

Knittle, Assistant to Board Member

Anand Rao, Scientist, the Board's Technical Unit

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

8 BY: Judith Dyer, Esq.

Assistant Counsel

9 2200 Churchill Road

Springfield, Illinois 62794-9276

10 On behalf of the Illinois EPA

11 WEBBER & THIES, P.C.

BY:

Phillip R. Van Ness, Esq.

12 202 Lincoln Square

Urbana, Illinois 61803

13 On behalf of National Solid Wastes

Management Association, Midwest Chapter

KEEFE REPORTING COMPANY

Belleville, Illinois

1 I N D E X

2 PANEL OF WITNESSES PRESENT WHO WERE QUESTIONED:

3 THOMAS A. HILBERT

4 JOYCE MUNIE,

P.E.

5 EDWIN C. BAKOWSKI,

P.E.

6 KENNETH W. LISS

E X H I B I T S

9 Proponent Exhibit 1

Prefiled testimony of

Mr. Thomas a.

Hilbert

Proponent Exhibit 2

Prefiled testimony of Mr.

11 Edwin C.

Bakowski, P.E.

12 Proponent Exhibit 3

Prefiled testimony of Mr.

Kenneth

Liss

Proponent Exhibit 4

Prefiled testimony of Ms.

14 Joyce

Munie, P.E.

(The exhibits are attached to the back of this

16 transcript.)

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1 P R O C E

E D I N G S

2 (October 27, 1997; 10:10 a.m.)

3 HEARING OFFICER TIPSORD: Good morning.

4 My name is Marie

Tipsord, and I have been appointed

5 by the Board to serve as Hearing Officer in this

6 proceeding entitled, In the Matter of Municipal

7 Solid Waste Landfill Rules: Amendments to 35

8 Illinois Administrative Code 811, 813 and 848. The

9 Docket Number is R98-9.

10 To my right is Dr. Tanner

Girard, one of

11 the Board Members assigned to this matter. Also

12 present is Board Chairman, Claire A. Manning, who

13 is also assigned to this matter. With me is John

14 Knittle, to Dr. Girard's right, representing Mr.

15 Yi. To my left is

Anand Rao, from our Technical

16 Unit.

17 This is the first hearing of this

18 proceeding which was filed on August 11, 1997, as a

19 joint proposal by the Illinois Environmental

20 Protection Agency and the National Solid Waste

21 Management Association. Along with the proposal

22 the proponents filed a motion asking the Board to

23 limit the scope of this proceeding. On August

24 21st, 1997, the Board accepted the proponents

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1 proposal, and I will quote from that order. The

2 Board notes both the proponents' desire to proceed

3 with this rulemaking in an expeditious manner and

4 that the expansion of the scope of the proposal to

5 include other regulatory quote, wish list, unquote,

6 could unduly delay the Board's deliberation.

7 However, the Board will not limit the discussion of

8 the regulatory alternative proposed or public

9 testimony or comment period concerning subject

10 matters addressed by this proposal. Therefore, at

11 this time the Board agrees to limit the scope of

12 this proceeding in that the Board will not

13 entertain requests from other parties to expand the

14 list of sections proposed for amendment. The Board

15 will accept comments on the proposed language for

16 the section opened in the proposal including any

17 potential suggestions regarding alternatives, close

18 quote.

19 Therefore, the Board limited the scope of

20 this proceeding. I will limit the scope of the

21 hearing consistent with the Board's order.

22 At the back of the room there are sign-up

23 sheets for both the notice and the service lists as

24 well as current copies of both the notice and

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1 service lists. If you wish to be on the service

2 list you will receive all pleadings and all

3 prefiled testimony in the proceeding. If you wish

4 to be on the notice list you will receive all Board

5 and Hearing Officer orders in the rulemaking. If

6 you have any question about which list you wish to

7 be placed on, please see me at a break.

8 The Board received

prefiled testimony

9 from the proponents and we will begin with the

10 proponent's testimony. Once we have proceeded

11 through the testimony we will have summaries of the

12 testimony and mark the testimony as it is read. We

13 will allow questions for the specific testimony and

14 the specific testifier.

15 We will then have a panel discussion and

16 allow for questions to be addressed to the panel as

17 a whole. Once we concluded all the

prefiled

18 testimony, if there is anyone here who may wish to

19 testify today, if we have time we will try to allow

20 that. At the close of today's hearing, we will

21 determine the

prefiling testimony days for the

22 hearing to be held on November 19th in Chicago.

23 At this time, is there anything you would

24 like to add, Dr.

Girard?

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1 BOARD MEMBER GIRARD: Yes, I would just

2 like to add that on behalf of the Board we welcome

3 everyone here to this hearing this morning. I

4 would also like to express the Board's appreciation

5 to the joint proponents for all the hard work

6 evidenced in this proposal which has come before

7 us, and we look forward to a fair and efficient

8 rulemaking process. Thank you.

9 HEARING OFFICER TIPSORD: Thank you.

10 Chairman Manning?

11 BOARD CHAIRMAN MANNING: Thank you for

12 bringing this forward as a joint proposal. It is

13 nice to see a joint proposal.

14 HEARING OFFICER TIPSORD: At this time I

15 will turn to the proponents. Would either of you

16 like to make an opening statement?

17 MR. VAN NESS: Madam Hearing Officer, my

18 name is

Phillip Van Ness. I am the attorney for

19 the NSWMA, one of the proponents today.

20 As per your direction a few moments ago,

21 we have one witness, Mr. Thomas A.

Hilbert, who

22 has, as you mentioned, previously filed testimony.

23 For the record, I would note that a copy of his

24 prefiled testimony is also available at the back of

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1 the room, as per Pollution Control Board rules.

2 I have no particular comment. I think we

3 would be better served and the Board's time better

4 served by opening the floor to the questions that

5 the Board Members themselves may have or you, Madam

6 Hearing Officer, may have as well as any members of

7 the public.

8 Without further ado, I guess I would be

9 entering Mr. Thomas A.

Hilbert, and we will

10 subsequently move that his testimony, as

prefiled,

11 be admitted as is read.

12 HEARING OFFICER TIPSORD: Before we do

13 that, Ms. Dyer, did you have an opening statement,

14 or would you like to reserve that until

15 afterwards?

16 MS. DYER: My opening statement will be

17 very brief, as was Mr. Van

Ness', and I think I

18 will reserve it until after Mr.

Hilbert responds to

19 questions.

20 HEARING OFFICER TIPSORD: Okay. At this

21 time would you swear in Mr.

Hilbert.

22 (Whereupon the witness was

23 sworn by the Notary Public.)

24 MS. TIPSORD: All right. Go ahead.

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1 MR. VAN NESS: I guess I would say at

2 this point that our intention is to ask no

3 questions of him, and not ask him to summarize his

4 testimony unless that be the will of the Board.

5 The statement has been

prefiled for a couple of

6 weeks now. If you would like for him to summarize

7 his testimony, he can do so briefly, or if you

8 prefer to pass on that and move on, we will take

9 our direction from you, Madam Hearing Officer.

10 HEARING OFFICER TIPSORD: Okay. We will

11 just go ahead and allow you to tender his testimony

12 and proceed with the Agency and then have the panel

13 questioning.

14 MR. VAN NESS: Thank you. Then that

15 would be our sum total testimony for the present.

16 HEARING OFFICER TIPSORD: Okay. So you

17 would like to offer his testimony as if read as

18 Exhibit Number 1?

19 MR. VAN NESS: That's fine.

20 HEARING OFFICER TIPSORD: Okay. We will

21 mark it as an exhibit and then we will attach it.

22 MR. VAN NESS: All right. Do you want to

23 mark that as NSWMA or proponents --

24 HEARING OFFICER TIPSORD: Well, let's go

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1 with proponents.

2 MR. VAN NESS: Okay.

3 HEARING OFFICER TIPSORD: And then that

4 will be distinguished -- if that is okay with the

5 Agency, that will be distinguishable and then if

6 either of you have separate exhibits that you want

7 to tender later on. We will assume the testimony

8 is joint from the proponents. Is that okay?

9 MS. DYER: Yes.

10 HEARING OFFICER TIPSORD: Do you have a

11 copy with you to hand to the court reporter?

12 MR. VAN NESS: Yes, I will hand her a

13 copy.

14 HEARING OFFICER TIPSORD: Okay. I think

15 the pleasure of the Board is to wait until the

16 panel discussion to direct our questions. I don't

17 think we have anything specific.

18 So we will proceed with you, Ms. Dyer.

19 MS. DYER: Good morning. My name is Judy

20 Dyer. I am here today on behalf of the Illinois

21 Environmental Protection Agency. With me, our

22 Agency witnesses today. On my left is Ken

Liss and

23 Ed

Bakowski. On my right is Joyce

Munie.

24 I don't have very much to say as an

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1 opening statement. I would just like to move on to

2 offer the testimonies of Ed

Bakowski and Kenneth

3 Liss and Joyce Munie and have them entered into the

4 record as if read. I have a copy.

5 HEARING OFFICER TIPSORD: We will mark Ed

6 Bakowski's testimony as Exhibit Number 2.

7 MR. VAN NESS: Ed

Bakowski as Number 2?

8 HEARING OFFICER TIPSORD: Yes, as Number

9 2. Then Kenneth

Liss as Number 3 and Joyce

Munie

10 as Number 4.

11 Ms. Dyer, did any of your testifiers wish

12 to summarize in any way or do you want to just

13 proceed to questioning?

14 MS. DYER: If it is all right with the

15 Board, we will just proceed to the questioning. I

16 would also like to mention that there are

17 additional copies of our testimony, of the Agency's

18 testimony in the back.

19 HEARING OFFICER TIPSORD: All right.

20 Would the court reporter please swear in the

21 witnesses.

22 (Whereupon witnesses Ed

Bakowski, Kenneth

Liss and

24 Joyce

Munie were sworn by the

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1 Notary Public.)

2 HEARING OFFICER TIPSORD: Okay. That

3 being the case, we will proceed to questions of the

4 panel. Although, I believe I have a specific

5 question of Mr.

Liss. Let me check something.

6 I have a specific question for Mr.

Liss

7 regarding your testimony. On page three of your

8 prefiled testimony, you talk about a potential

9 delay of 90 days before detection is not

10 significant. It is the first actual paragraph

11 there.

12 MR. LISS: Okay.

13 HEARING OFFICER TIPSORD: When you say a

14 potential delay of 90 days before detection is not

15 significant, you mean environmentally not

16 significant? The whole paragraph there, I guess, I

17 should clarify for the record is talking about the

18 time -- the difference between semiannual and

19 quarterly reporting of groundwater monitoring

20 results, I believe, and if the interval between --

21 from 90 to 180 days would not result in a

22 significant environmental effect.

23 MR. LISS: Considering the rate -- in the

24 paragraph I tried to bring out the -- specifically,

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1 I said on the order of 20 to 30 feet per year that

2 would be a very high rate of groundwater movement,

3 in considering that -- even that rate of movement,

4 if the detection, the worse case scenario being

5 that if this facility could go to semiannual

6 monitoring, there would be an additional 90 day

7 interval before there would be some samplings and

8 statistical methods to evaluate, and it would not

9 be significant in travel time.

10 What I didn't put in there, and I can

11 clarify now, is looking at the well spacing that we

12 have any analytical capabilities where we are

13 basically down to the one part per billion for all

14 organics, very close to five to ten most of the

15 inorganics, it would not be significant in travel

16 time.

17 HEARING OFFICER TIPSORD: Thank you.

18 All right Mr.

Hilbert, in your testimony

19 on page 3, under Subpart III, substantive features

20 of this proposal, you refer to 811 -- on point

21 number two you refer to 811.309 (e).

22 MR. HILBERT: Yes, excuse me. That's

23 incorrect.

24 HEARING OFFICER TIPSORD: That should be

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1 (g)?

2 MR. HILBERT: It should read (g)(1).

3 HEARING OFFICER TIPSORD: Great. Thank

4 you. Okay. I think that's all I have for the

5 specific testifiers.

6 Does anyone having anything else for the

7 specific testifiers?

8 BOARD MEMBER GIRARD: I have one

9 question. My question goes to Part 811.321, if you

10 want to turn to that. In fact, 811.321(b)(4). It

11 is on page 58 of the proposal.

12 Under this subsection we talk about

13 having a CQA officer certifying or

recertifying

14 certain criteria, and the CQA officer is defined in

15 811.502, which is one of the sections which is not

16 open. So, first of all, I think we need to at

17 least discuss the definition of what a CQA officer

18 is to get into the record of this proceeding.

19 Secondly, we need something in the record

20 here about why the CQA officer is the appropriate

21 person to do this kind of certification, so that at

22 least we get a discussion on the record. If you

23 would like to discuss that today that would be fine

24 or otherwise you can put it in the comments and

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1 submit that before the next hearing. Whatever your

2 pleasure is at this point in time.

3 MS. DYER: Joyce

Munie can respond to

4 that question.

5 MS. MUNIE: First, we would like to

6 define the CQA officer today, just to get it into

7 the testimony. However, as far as why the CQA

8 officer is the appropriate person to make this

9 certification, we would like to do that in written

10 response, if you don't mind.

11 BOARD MEMBER GIRARD: That is fine.

12 Thank you.

13 MS. MUNIE: The CQA officer himself or

14 herself is defined in Section 811.502 and under

15 subsection (b) it talks about the duties and

16 qualifications of the CQA officer. Under (b)(1)

17 the CQA officer shall supervise and be responsible

18 for all inspections, testing, and other activities

19 required to be implemented as part of the CQA

20 program under the subpart, and (b)(2) requires that

21 the CQA officer shall be a professional engineer.

22 BOARD MEMBER GIRARD: Thank you. What

23 does the acronym CQA stand for?

24 MS. MUNIE: Construction quality

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1 assurance.

2 BOARD MEMBER GIRARD: Thank you. That's

3 all I have.

4 MR. RAO: I have a few questions. Some

5 of them are clarification questions and some

6 substantive. Under 811.309, Subsection (d)(6), the

7 proposed amendment requires one day's worth of

8 leachate storage capacity plus management of

9 leachate through disposal of treatment.

10 Does this alternative provide the same

11 margin of safety equivalent to the existing

12 regulations which requires five days of storage?

13 If so, is it envisioned that the

14 alternative means of

leachate management will be

15 available at all times to deal with any

16 contingency, such as breakdown of one of the

17 options?

18 MS. MUNIE: Under this section, the

19 proposed change, we would expect it to be

20 equivalent protection because of the two

21 alternatives for

leachate management on top of the

22 one day's worth of storage. Assuming that one of

23 your options would breakdown, you have the second

24 one to deal with.

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Belleville, Illinois

1 Generally, these

leachate management

2 options are things that you know are going to go

3 down because you are doing routine maintenance on

4 them. Under routine maintenance you have a second

5 backup to deal with the

leachate that has

6 accumulated during that day. If something

7 catastrophic happens, you would have one day's

8 worth of storage on site to store the

leachate as

9 you dealt with the catastrophic problem, be it

10 everything breaking down all at once.

11 MR. RAO: These two alternative means of

12 leachate management that should be available, so

13 would that be part of the permit, you know, to have

14 demonstrated that these options are available to

15 them?

16 MS. MUNIE: Clearly, that would be part

17 of the permit application, that they would have to

18 demonstrate that they have these two options. And

19 it would be a requirement that if they knew

20 something was going to happen to one of these

21 options it would require a permit modification to

22 make available a second option for them.

23 Also, I want to point out that both of

24 these

leachate options for management must be able

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1 to manage all of the

leachate that should be

2 generated in that one day. It can't just manage

3 half the

leachate. It has to be able to manage

4 everything that they expect to encounter in that

5 one day.

6 MR. RAO: And when you talk about one

7 day's storage, it is the maximum

leachate

8 generation, right, that is used to recommend the

9 one day storage capacity?

10 MS. MUNIE: Yes.

11 MR. RAO: Okay. In the same Section,

12 under Subsection (g)(1) the proposed amendment to

13 require

leachate to be characterized on the basis

14 of individual monitoring locations within a

15 disposal unit rather than treating the unit as a

16 whole, can you please explain how the

leachate

17 characteristics at each monitoring location will be

18 used to evaluate the performance of the unit as a

19 whole?

20 MS. MUNIE: Currently, the way the

21 Section reads, it requires that

leachate be

22 monitored from each individual unit, and the unit

23 could be up to 200 acres in an area. Whereas this

24 proposal establishes

leachate monitoring locations

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1 which within that specific unit which is a defined

2 area. So it would allow us to monitor, say, the

3 south end and the north half, the east side and the

4 west side. It would allow us to monitor more than

5 one location within each unit.

6 MR. RAO: From a treatment standpoint,

7 would it be more useful to have

leachate quality

8 data representative of the

leachate from the unit

9 as a whole or do you feel that the individual

10 monitoring locations is a better way to do that?

11 MS. MUNIE: From the treatment

12 standpoint, it would be better to understand what

13 the

leachate constituents are as a whole. However,

14 from the groundwater monitoring it would be better

15 to have

spacial variations to determine whether or

16 not, say, that the west side is going to impact the

17 west side groundwater as opposed to what overall or

18 a combination of all the

leachate would look like.

19 Generally, whenever

leachate is

20 collected, it is collected in one tank. Before

21 that tank can go off for treatment it must be

22 monitored for the specific hazardous

23 characteristics. So that

leachate tank is also

24 monitored in addition to these monitoring locations

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1 within the unit itself.

2 MR. RAO: Okay. When you talk about this

3 monitoring of

leachate in the tank, is that

4 required by the rules, or is that something that an

5 operator does to make sure that the treatment meets

6 the requirements?

7 MS. MUNIE: Testing the

leachate before

8 it goes to a treatment facility is required by the

9 treatment facility itself. It is required that

10 they do not send hazardous

leachate off-site.

11 Therefore, they must test and monitor the

leachate

12 that is being sent off-site to determine whether or

13 not it is hazardous.

14 MR. RAO: In Subsection (g)(1) the

15 proposed amendment allows the Agency to require

16 additional

leachate sampling as necessary to ensure

17 compliance with the Act and Subtitle (g). Could

18 you identify the specific requirements under the

19 Act or regulations pertaining to

leachate sampling

20 from landfills?

21 MS. MUNIE: We don't believe that there

22 is additional

leachate sampling in the Act. What

23 we are getting at there is ensuring compliance with

24 the Act that this new line would allow the Agency

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1 to add additional

leachate monitoring to ensure

2 that the

leachate that is discharged from the unit

3 does not cause a violation of the Act. It is not

4 that there is additional

leachate monitoring

5 requirements in the Act that this subsection is

6 trying to make them monitor for.

7 HEARING OFFICER TIPSORD: I have a

8 follow-up question on that, along the same lines.

9 That sentence says that the Agency may, by permit

10 conditions, require additional

leachate sampling.

11 I am assuming that the Agency would make that

12 determination pursuant to its permitting process

13 and its permitting authority. Is that correct?

14 MS. MUNIE: Clearly, it would be part of

15 the permit application. We would envision that

16 these additional sampling requirements would come

17 about because we found a groundwater problem or

18 there was a hit in the groundwater where we wanted

19 to determine whether or not it was actually coming

20 from the unit itself.

21 HEARING OFFICER TIPSORD: Okay.

22 MR. RAO: I have one more question on the

23 same subsection. Subsection (g)(1) requires

24 leachate to be tested in accordance with

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1 subsections (g)(2)(G), and (g)(3)(D).

2 Under what circumstances would

leachate

3 samples be tested for parameters listed in

4 subsections (g)(2)(A) through (g)(2)(F) and

5 (g)(3)(A) through (g)(3)(C)?

6 MS. MUNIE: Once

leachate comes out of

7 the unit and it is going for treatment or

8 pretreatment, these are standard constituents that

9 you would monitor for that would be specific for

10 that treatment plant. These are constituents that

11 are important in a biological treatment of

12 leachate.

13 Whereas, the

leachate that is within the

14 unit itself only needs to be monitored for the

15 groundwater constituents, because those are the

16 parameters that you are looking for to indicate

17 whether there was a groundwater concern.

18 MR. RAO: So the proposed amendment as to

19 what is going to be tested within the unit and what

20 would be tested when the

leachate is being disposed

21 after treatment, is that what you are saying?

22 MS. MUNIE: Yes. The change that we make

23 to the

leachate monitoring section in (g)(1) are

24 really changes to what is monitored within the unit

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1 itself. Whereas, we made no changes to the

2 Subsection (2) and (3) of the Subsection (g), and

3 those are the constituents that are monitored prior

4 to treatment and pretreatment.

5 MR. RAO: Okay. I have one more question

6 on 811.309.

7 The proposed changes to the

leachate

8 monitoring that are applicable to both

putrescible

9 waste and chemical waste landfills. Should the

10 changes also apply to steel and foundry waste

11 landfills under Part 817, since such landfills are

12 also a subset of chemical waste landfills? Because

13 the requirements which are based on these 811

14 requirements --

15 MS. MUNIE: I will be perfectly honestly

16 with you. We did not look at the 817 requirements

17 in regard to these particular provisions. But,

18 yes, clearly, they could also go to the 817 units,

19 because those units are similar to chemical and

20 putrescible in that if the constituents in

leachate

21 are high enough they became chemical and

22 putrescible waste landfills. So if the Board chose

23 to, these would be appropriate changes to 817.

24 MR. BAKOWSKI: May I say something? I

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1 think we have to kind of look at that thoroughly,

2 though, because I think the steel and foundry

3 landfills are more homogenous than these types of

4 landfills. So you might have to have a provision

5 where you could address that factor.

6 MR. RAO: The reason I ask you is, you

7 know, the steel and foundry waste landfills right

8 now have the quarterly sampling and, you know, it

9 is similar to what was in the existing Part 811.

10 Since we are relaxing these rules, I want to know

11 what the Agency thinks about the steel and foundry

12 chemical waste landfills.

13 MR. BAKOWSKI: Specifically, I don't

14 think the steel and foundry -- I don't know how

15 many are members of -- how many are members of the

16 NSWMA. They really haven't been a part of that. I

17 think we would need some direct discussions with

18 them to think about proposing any changes that

19 effect them. They are kind of a separate group

20 that work on their own rules with their own set of

21 constituents.

22 MR. RAO: Yes, I know about the

23 organization and everything, but in terms of the

24 landfill itself I just wanted to get your feedback,

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Belleville, Illinois

1 since we have a docket open in the steel and

2 foundry waste landfills, also. I just thought

3 maybe you could address --

4 MR. BAKOWSKI: I am sorry?

5 MR. RAO: We have ongoing rulemaking in

6 steel foundry landfills, too.

7 MR. BAKOWSKI: Oh, okay.

8 MR. RAO: Okay. Moving on to Section

9 811.310. In Subsection (d)(1)(C) the proposed

10 amendment recommends that we eliminate monitoring

11 of nitrogen from landfill gas. In the testimony

12 supporting the change it says that there was no

13 reason for monitoring nitrogen.

14 I have looked at the justification in the

15 Board's final opinion in Docket R88-7, and it

16 states that nitrogen should be monitored as an

17 indicator of air leaks which can aid in the

18 interpretation of the validity of the sample and

19 integrity of the monitoring devices.

20 Since the proposed amendment Section

21 (d)(1)(C) eliminates the requirement to monitor

22 nitrogen, what will be used as an alternative

23 indicator of air leaks in the system?

24 MR. HILBERT: Well, you could still

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1 determine nitrogen concentrations, assuming the

2 mass balance approach, you know, if nitrogen was a

3 component of the gas you were sampling and you had

4 tested all the other components, then the remaining

5 fraction would be the nitrogen.

6 MR. RAO: The air leaks were supposed to

7 be -- you know, in terms of you measure for

8 nitrogen and then you do the mass balance and see

9 if it matches up. If it does not, then that is an

10 indication of an air leak. And so if you are

11 proposing that we eliminate nitrogen, there is no

12 way of eliminating air leaks in the system.

13 MR. HILBERT: The general idea was not to

14 specifically eliminate nitrogen. It was to

15 eliminate specific testing for nitrogen. Because

16 that test requires that the samples be sent to an

17 analytic lab, and it is not readily done in the

18 field. That is an additional expense that is

19 really not necessary, because the mass balance

20 approach is pretty foolproof. It is pretty

21 consistent.

22 MS. MUNIE: Also, the point you are

23 trying to get at here is air leaks within a

24 controlled system where you are actually getting --

KEEFE REPORTING COMPANY

Belleville, Illinois

1 you are pulling the methane out of the landfill.

2 The provision here is talking about below ground

3 monitoring devices, which are all devices where you

4 place a monitoring device into the ground, and you

5 are just monitoring the constituents there. It is

6 not in a closed system.

7 If you are in a closed system and you are

8 monitoring -- specifically monitoring for nitrogen,

9 you are going to see whether you have any air leaks

10 there. This is not a closed system that we are

11 monitoring. These are just the air monitoring

12 devices that are within the ground itself.

13 So for the monitoring of the landfill

14 itself, doing a direct measurement of nitrogen

15 seems excessive because you have got -- you have to

16 send those particular samples off to a lab. You

17 are not getting any direct measurements on the day

18 that you are monitoring it. It is also a very

19 expensive test and for a non enclosed system, it

20 just seemed excessive to us.

21 MR. RAO: Okay. Then moving on to

22 Section 811.312, under Subsection (g)(1), a

23 landfill gas processing facility which is permitted

24 to receive and process landfill gas under the Act

KEEFE REPORTING COMPANY

Belleville, Illinois

1 and Board regulations is considered -- is not

2 considered as part of the facility under the

3 proposed amendments.

4 Under what provisions of the Act and/or

5 Board regulations are the landfill gas processing

6 facilities required to obtain permits?

7 MS. MUNIE: You mean from the Agency?

8 MR. RAO: Yes.

9 MS. MUNIE: Under the Bureau of Air,

10 permitting requirements.

11 MR. RAO: I was asking you what

12 provisions of the Act or Board regulations are

13 landfill gas processing facilities required to

14 obtain permits? Because it says in the Board

15 regulations and the Act.

16 MS. MUNIE: You are looking for the

17 specific regulations and --

18 MR. RAO: Yes.

19 MS. MUNIE: -- provisions in the Act?

20 MR. RAO: If you don't have it, you can

21 provide it in the comments.

22 MS. MUNIE: We will provide that in the

23 comments.

24 MR. BAKOWSKI: You just need the

KEEFE REPORTING COMPANY

Belleville, Illinois

1 citation?

2 MR. RAO: Yes. Thank you.

3 MR. BAKOWSKI: Okay.

4 MR. RAO: Are all landfill gas processing

5 facilities required to have a permit to receive and

6 process landfill gas?

7 MS. MUNIE: Could you ask that question

8 again?

9 MR. RAO: Are all landfill gas processing

10 facilities required to have a permit to receive and

11 process landfill gas?

12 MS. MUNIE: We will provide that in our

13 comments, our written responses.

14 MR. RAO: Okay. In the case of a

15 permitted off-site gas processing facility, would

16 the operator of the landfill, from which the

17 facility receives landfill gas, have any control

18 over the processing system to ensure that an

19 adequate system for gas disposal is always

20 accessible and available?

21 MR. HILBERT: The way that that has been

22 amended, it still requires the landfill facility to

23 maintain financial assurance for the landfill gas

24 control measures that would be required. Just

KEEFE REPORTING COMPANY

Belleville, Illinois

1 because you have entered into a contract with a

2 third party or some other entity to utilize your

3 gas and maintain the control systems on the

4 landfill, that does not relieve you from the

5 financial burden to always have something there in

6 case they default it. So that -- I mean, there is

7 still protection to ensure that that could be done

8 if this third party no longer existed.

9 MR. RAO: Actually, I was more interested

10 in knowing about during the operation of the

11 landfill, you know, if there is a buildup of

12 landfill gas or some dangerous situation occurs,

13 will this off-site gas processing facility, will it

14 be always available and accessible to the operator

15 to make sure that, you know, the safety concerns

16 are addressed?

17 If not, do you believe the alternative

18 backup system must be available to the operator

19 like, you know, flares or something of that sort,

20 in the event that the off-site facility is not

21 available for some reason?

22 MR. HILBERT: It is my understanding that

23 that would still be the requirement. I mean, the

24 landfills are still required to satisfy the other

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Belleville, Illinois

1 portions of the regulations. So that if there was

2 a problem with excessive gas, let's say your full

3 ground monitoring devices, and some other

4 indication that the landfill gas was not under

5 control, the landfill would still have to make

6 whatever or do whatever requirements are necessary

7 to control the landfill gas. I mean, even if he

8 didn't have some kind of working relationship with

9 this third party he would still be responsible for

10 ensuring that the public health and safety was

11 protected and the environmental issues were

12 protected.

13 MR. RAO: Is there anything in the rules

14 that require the operator to do that?

15 MR. HILBERT: Yes. This doesn't amend

16 other sections of 811 that require -- I don't know

17 the specific references here, but this is really

18 geared towards off-site processing facilities, so

19 that they are not considered a part of the

20 landfill. I mean, it would allow easier access for

21 people entering the contracts with utilities, other

22 entities that want to utilize the gas that they

23 have available, but --

24 MR. RAO: The reason I ask this question

KEEFE REPORTING COMPANY

Belleville, Illinois

1 was when this rule was adopted in Docket 88-7, a

2 similar thing was proposed and was not accepted by

3 the Board, and at that time, you know, as an

4 alternative you can have backup systems to be

5 contingencies if you want to. You can take a look

6 at the Board's opinions and get back to us on that.

7 MS. MUNIE: But just because a landfill

8 facility has, as part of its permit, this off-site

9 processing facility, that does not ensure that they

10 have any real control on whether or not that

11 off-site processing facility continues to operate.

12 That off-site processing facility, although still

13 permitted under the landfill's permit, it could

14 choose to shut down.

15 MR. RAO: That's the reason I asked if

16 there is a need for backup options if it decided to

17 shutdown for some reason.

18 MS. MUNIE: That is what I am saying.

19 That is the way it is now. Without any changes to

20 the Act as it is right now, the

regs, as they are

21 written, even though the landfill has a permit for

22 this off-site facility, they have no real control

23 over it.

24 MR. RAO: Because if it is 50 percent

KEEFE REPORTING COMPANY

Belleville, Illinois

1 over -- if it is 50 percent or more, the landfill

2 gas right now is considered part of the facility

3 and the operator will have control over the

4 facility.

5 MS. MUNIE: But just because --

6 MR. RAO: Under the existing rules.

7 MS. MUNIE: Under the existing rules it

8 is required to be permitted as part of the landfill

9 facility. That does not ensure that the operator

10 has any control over the facility, the processing

11 facility.

12 MR. RAO: Okay. But still, you know,

13 there is concern about what happens in terms of,

14 you know, if there is a shutdown a or breakdown or

15 anything of that sort.

16 MS. MUNIE: Sure. We will be glad to go

17 through the Board's original reasoning in the R88-7

18 and respond further.

19 MR. RAO: Because the operator has

20 control over the --

21 MS. MUNIE: Sure.

22 MR. RAO: -- facility.

23 MS. MUNIE: We understand that, and we

24 will be glad to respond further in our written

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Belleville, Illinois

1 comments.

2 MR. RAO: Okay. Then moving on to

3 811.319. Under 811.319, Subsection (a)(1)(A), the

4 amendments require certification described in 35

5 Illinois Administrative Code 813.304(b) take into

6 consideration the levels of the monitored

7 constituents within the --

8 MR. VAN NESS: Could you repeat that?

9 MR. RAO: Under (a)(1)(A), the

10 certification required under 811 -- it is not 811.

11 Under 813.304(b), does it take into consideration

12 that the levels of the monitored constituents

13 should be within the zone of attenuation or just at

14 the edge of the unit?

15 (Chairman Manning exited the

16 hearing room.)

17 MR. HILBERT: If I understand your

18 question right, the certification in 304(b), you

19 are questioning if it -- I mean, what realm does it

20 encompass?

21 MR. RAO: Yes.

22 MR. HILBERT: If I understand 304(b), and

23 I am doing this from memory, that is just basically

24 certifying that nothing has changed from the

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Belleville, Illinois

1 original groundwater impact assessment that was

2 completed for the facility, if I am correct. And

3 that would encompass -- actually, when you are

4 preparing groundwater impact assessments, you are

5 looking at not only the waste footprint, the zone

6 of attenuation, point of compliance, but you are

7 also looking at the type of geology outside of that

8 region, because you need to understand groundwater

9 flow directions, background groundwater quality and

10 other issues.

11 So, yes, it covers the waste footprint,

12 the zone of attenuation, the point of compliance,

13 but it also covers some site-specific areas outside

14 of that boundary that are unique to each site when

15 you prepare your groundwater impact assessment.

16 MR. RAO: So the certification involves

17 more than just, you know, demonstrating that the

18 monitoring constituents meet all the

MAPCs within

19 the zone of attenuation?

20 You have two options in your proposed

21 amendment, and one is the certification or an

22 operator could just demonstrate, you know, the

23 groundwater within the zone of attenuation meets

24 the MAPC?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 MR. LISS: I guess I need to know if you

2 are asking how we plan to do it in the regulatory

3 framework as opposed to how the operator --

4 MR. RAO: I was looking at this and

5 basically the certification where no data is

6 provided to the Agency you could see whether they

7 meet the levels so --

8 MR. LISS: Well, you have to --

9 MR. RAO: Monitoring, would it be more

10 appropriate to just go with the monitoring data to

11 show whether they meet the

MAPCs or not?

12 MR. LISS: All right. I am ready to

13 answer. You have to read that with part of (a).

14 You said that first that doesn't require the

15 submittal of any data. Basically it is

16 certification.

17 Under (a) there is some criteria listed

18 here, one through five, and that if any of these

19 things occur that, obviously, they can't meet (b).

20 That's a compliance issue, first of all, whether or

21 not they have told us if any of these things have

22 or have not occurred. That's a compliance issue

23 there. We have reviews, file reviews, and tracking

24 these things that happen.

KEEFE REPORTING COMPANY

Belleville, Illinois

1 So assuming that they meet (b), no, they

2 would not submit anything different for that, but

3 with the data that we get throughout the year, the

4 data that comes in quarterly, we easily would be

5 able to verify that, and that's what we plan to

6 do. We don't want all that data resubmitted under

7 (b) because we already have it.

8 MR. RAO: Okay. You are still going to

9 look at the data that you review with the

10 compliance?

11 MR. LISS: Yes. At the first part I was

12 a little confused. I think you were getting at

13 what if the MAPC is found to be exceeded?

14 MR. RAO: Yes. My concern was you have

15 two options here. One is the certification which

16 just states, you know, the original groundwater

17 impact assessment still applies, or an operator

18 could demonstrate that they meet all

MAPCs within

19 the zone of attenuation. So I was looking at those

20 two options and I was asking you, you know, in a

21 detection monitoring, would you rather have a

22 demonstration or a certification.

23 MR. LISS: It is in the context of a

24 renewal, and for that we already have the data. I

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Belleville, Illinois

1 would rather -- we prefer the way it is written as

2 a certification.

3 MR. RAO: Okay.

4 MR. LISS: But there might be -- the

5 alternate serves as two functions. One, that they

6 could have

exceedance of MAPC at the time and when

7 they submit that we are going to look at that.

8 There is other triggering mechanisms that are

9 required by the rules for the evaluation of

10 groundwater data and also put into the permit when

11 we issue that we would already know that they

12 reported that to us under the assessment being

13 triggered into assessment.

14 When the renewal comes up, it could be

15 that a facility can't make this but they were

16 triggered into assessment. I am sure at that point

17 they would give us that information and show us

18 that basically going through the administrative

19 functions of responding to an assessment and the

20 MAPC could, at that point, be an analytical error,

21 a false-positive, and then maybe we would rely on

22 the assessment data and still probably allow them

23 with the certification in (b) to go to the

24 monitoring. Does that answer your question?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 MR. RAO: It kind of clears it up, yes.

2 MS. LISS: Okay.

3 MR. RAO: Under 811.319 (a)(1)(A), if the

4 groundwater monitoring results indicate that the

5 monitored unit constitutes a threat to groundwater,

6 would the monitoring frequency revert back to a

7 quarterly interval?

8 MR. BAKOWSKI: Can you repeat that,

9 please?

10 MR. RAO: Yes. If the groundwater

11 monitoring results indicate that the monitored unit

12 constitutes a threat to groundwater, would the

13 monitoring frequency revert back to quarterly

14 intervals?

15 MR. LISS: We have that technical data

16 that would trigger an assessment, and under

17 assessment monitoring we would still have increased

18 monitoring which could be quarterly or some other

19 frequency that we maintain that monitoring at that

20 frequency until such time it was cleared up or it

21 went to corrective action.

22 MR. RAO: Okay.

23 HEARING OFFICER TIPSORD: I have a

24 general question, as well. In Section 813.501,

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Belleville, Illinois

1 there is a requirement having to do with a

2 modification that is

nonsignificant and --

3 MS. MUNIE: Do you mean 103?

4 MR. BAKOWSKI: 501 is annual reports.

5 HEARING OFFICER TIPSORD: I am sorry.

6 Yes, 813.103. The provision would allow the Agency

7 30 days to review that modification, and there is a

8 possibility that -- in fact, it says the Agency's

9 decision deadline date shall be stated as

10 determined -- as of the date of such written notice

11 the Agency's determination date -- my question is

12 having to do with the possibility that this 30 days

13 could extend the Agency's 180 day decision deadline

14 or 90 day decision deadline assessed in the

15 statute. And, in fact, I believe that Mr.

Bakowski

16 and Mr.

Hilbert both referred to the fact that if

17 this modification came in the last 30 days it

18 could, in fact, extend that time.

19 My general question is since the statute

20 sets your deadline at 90 or 180 days, and most

21 would be 180 days in this context, what is your

22 authority for extending that time, or do you see

23 that as, in fact, extending the statutory time?

24 MR. BAKOWSKI: No, our understanding is

KEEFE REPORTING COMPANY

Belleville, Illinois

1 that that modification is -- it makes it a new

2 application. So that time starts over again.

3 HEARING OFFICER TIPSORD: Even a

4 modification that is not significant?

5 MR. BAKOWSKI: By the wording in this

6 rule we intended that to mean that even an

7 insignificant modification is -- makes it a new

8 application. For example, in the composting rules,

9 any modification at all, no matter what, it defines

10 that in the rules that that makes it a new

11 application. So we paralleled that. Clearly,

12 right now significant modifications make it a new

13 application. We wanted to add minor modifications.

14 HEARING OFFICER TIPSORD: So any

15 modification would be considered a new application

16 and start the time frame over again?

17 MR. BAKOWSKI: Right. And then by rule

18 we have a new deadline to decide similar. Right

19 now operating permits under 807, there is a

20 provision where we have to do them within 45 days

21 even though there is no statutory deadline.

22 HEARING OFFICER TIPSORD: Yes, Mr. Van

23 Ness?

24 MR. VAN NESS: I am going to jump in here

KEEFE REPORTING COMPANY

Belleville, Illinois

1 even though this isn't, per se, an issue that is

2 terribly near and dear to the

NSWMA's heart, per

3 say. We view this as more of a holding type

4 provision. It is not necessarily one that messes

5 with the statute. What we see this is

is a safe

6 haven for the Agency and the applicant to basically

7 arrive at the decision as to whether this is or is

8 not a

sig mod in the first place.

9 If the decision is that it is not, you

10 will notice that the way that this section is

11 worded that the clock then picks up where it left

12 off subject to this possible 30-day umbrella

13 period, which to the extent possible is tucked

14 within the existing statutory deadline. Only when

15 you get to that eleventh hour change, when the

16 Agency desperately needs the ability to make the

17 decision, is this or is this not a

sig mod, that

18 this extension comes into play. We view it more as

19 a holding while that decision is made. Once that

20 decision is made, then the clock is back on.

21 But I don't think that this poses a

22 statutory construction problem. JCAR may have a

23 disagreement with us on that. I think a fair

24 reading of the statute is almost to the doctrine of

KEEFE REPORTING COMPANY

Belleville, Illinois

1 necessity. At some point in time the Agency simply

2 must have the time to make the determinations to go

3 through the data submitted to it before making

4 decisions.

5 The alternative is satisfactory to both

6 the Agency and to the regulated community, which

7 would be the Agency would have to maybe either

8 allow something to pass that might or might not

9 qualify the

sig mod or, alternatively, reject the

10 permit, start the clock over again, simply to

11 preserve the statutory time limits. That seems to

12 be a tremendous waste of administrative resources.

13 So I guess I am kind of invoking a doctrine of

14 necessity in terms of providing the Agency the time

15 it clearly needs.

16 MR. RAO: I have a clarification question

17 for the Agency. Does the Agency make the

18 determination whether the modification is a

19 significant modification or -- I don't know what --

20 MR. BAKOWSKI: Yes. Whenever a

21 modification comes in we have to because it effects

22 our decision.

23 MR. RAO: That would be in accordance

24 with the definition of a significant modification?

KEEFE REPORTING COMPANY

Belleville, Illinois

1 MR. BAKOWSKI: Right.

2 MS. MUNIE: Yes.

3 MR. BAKOWSKI: The current definition of

4 significant modification was really contemplated in

5 the context of an operating permit, not an

6 application that is not really there yet. We

7 rather them really just rewrite the definition of

8 significant modification. We thought we would do

9 it by calling it a

nonsignificant or some other

10 kind.

11 MR. RAO: Okay.

12 HEARING OFFICER TIPSORD: So to make

13 clear, then, what you envision is that this would

14 hold the decision deadline, for example, if it came

15 in on the 135th day or the 150th day that you would

16 hold for 30 days that decision deadline and then

17 kick it back in once you decided what this was and

18 say it is a

nonsignificant modification you would

19 start over and the Agency would have another 25

20 days then to make it's decision after that initial

21 30 so it would add --

22 MR. BAKOWSKI: Let's say if it came in on

23 the 170th day, okay, and we considered it at a

24 minimum it would go to 200 because you have got 170

KEEFE REPORTING COMPANY

Belleville, Illinois

1 plus 30. Okay. If it was significant, then you

2 would have 170 plus 180, whatever that is.

3 HEARING OFFICER TIPSORD: Therein lies my

4 question. You are, then extending the decision

5 deadline.

6 MR. BAKOWSKI: No. Right now when a

7 significant modification comes in on day 170 it

8 goes to 180.

9 HEARING OFFICER TIPSORD: I understand

10 that, Mr.

Bakowski. But if it is a significant

11 modification you view that as a new application you

12 start the clock over for another 180 days. What

13 you are doing now is saying that we get 30 days to

14 decide if it is a significant modification.

15 MR. BAKOWSKI: No, not necessarily,

16 because it has to be either a minor or a

17 significant, okay. So by the regulatory language

18 you are making it a modification.

19 HEARING OFFICER TIPSORD: If I modify my

20 permit on the 170th day, you have now another 30

21 days, so you are getting another 20 days beyond the

22 statutory 180 days to make the decision.

23 MR. BAKOWSKI: No, what I am saying is we

24 have a new application which is the result of a

KEEFE REPORTING COMPANY

Belleville, Illinois

1 minor modification and we have 30 days to review

2 that. And you could extend -- like, you could

3 extend it -- it is a new application so statutorily

4 we have 180 days but through negotiations with

5 NSWMA, we decide that those we are going to turn

6 in -- have the rule establish a 30 day deadline

7 similar to 807 operating permits that are right now

8 45 days even though there is no statutory deadline

9 for 45 days. See, I think the Board can establish

10 a shorter time than the statutory time frame and

11 that's what we are proposing here, is to establish

12 a shorter time frame rather than doing it similar

13 to the composting applications where we said any

14 change is a new one and starts the statutory time

15 frame over. This does start the statutory time

16 frame over, but by rule you are making it shorter.

17 HEARING OFFICER TIPSORD: But if it comes

18 in on the 145th day, it doesn't start the statutory

19 time frame over.

20 MR. BAKOWSKI: Any modification starts

21 the statutory time frame over but the Board is --

22 HEARING OFFICER TIPSORD: Okay, but now

23 you just by saying that you just trapped yourself

24 into the -- if they bring in something on day one,

KEEFE REPORTING COMPANY

Belleville, Illinois

1 and they modified it day two, you only have 30 days

2 to approve or disapprove the application.

3 MR. BAKOWSKI: Good point. I think we

4 can -- if that's your issue, I think we want to

5 address that and clarify that. We will never

6 shorten that original one.

7 MR. VAN NESS: If I could clarify that,

8 Madam Hearing officer, I wasn't sure if I was

9 getting your point either. Now I think I am. I

10 want to make sure so we want to respond to that.

11 If I understand correctly, your concern is that the

12 additional 30 days might end up coming in addition

13 to the subsequent 180 days if we should determine

14 that this was indeed a significant modification.

15 Is that correct? Do I understand that right.

16 HEARING OFFICER TIPSORD: My concern is

17 that you are creating a whole new --

18 MR. VAN NESS: 210 days.

19 HEARING OFFICER TIPSORD: -- permutation

20 year that triggers -- really becomes a concern to

21 me when you get beyond that 150 days. And what you

22 are saying is if it comes in any time before the

23 150 days it has no effect -- unless it becomes a

24 significant modification, it has no effect on the

KEEFE REPORTING COMPANY

Belleville, Illinois

1 180 days, but if it comes in on the 151st day, then

2 it becomes the new application but only if it comes

3 in on the 151st day. I see some real legal issues

4 with that. I would like to see some discussion or

5 some explanation on that. You see what I am

6 saying.

7 MS. DYER: I think this is a legal issue

8 and it would involve construing the statute. I see

9 your point and I think that we would have to

10 interpret final action but maybe we should respond

11 in our comments.

12 HEARING OFFICER TIPSORD: I think that is

13 probably a good idea to see some legal discussion

14 on it. I think at a minimum we need to include

15 something in the Board's opinion clarifying this.

16 Were there any questions from anyone in

17 the audience?

18 Seeing none, are there anymore from the

19 Board?

20 BOARD MEMBER GIRARD: I have some

21 questions considering new section 813.504. That's

22 on page 64 of the proposal. This section concerns

23 an annual report that is supposedly to be kept at

24 or near the facility for inspection by Agency

KEEFE REPORTING COMPANY

Belleville, Illinois

1 personnel pursuant to I think it is section before

2 813.503. If the Agency desired to have a copy of

3 this annual report, would a copy be made available

4 to the Agency?

5 MS. MUNIE: The information in the annual

6 report itself would be available for anyone to

7 inspect at the facility itself including the Agency

8 to inspect at the facility.

9 BOARD MEMBER GIRARD: Well, now, when you

10 say "anyone," does that include a member of the

11 public?

12 MS. MUNIE: As part of the operating

13 record, yes, it would be. This is all information

14 that is required in the operating record, and

15 that's available to anyone.

16 BOARD MEMBER GIRARD: So if a member of

17 the local Sierra Club, just to take an example,

18 desired to come in during normal working hours and

19 inspect these annual reports that would be made

20 available to that person?

21 MS. MUNIE: At a municipal solid waste

22 landfill, that's the kicker. Yes, 811.112 all of

23 the information that is required to be combined and

24 kept in the annual report is also required under

KEEFE REPORTING COMPANY

Belleville, Illinois

1 811.112 for the record keeper requirements for

2 municipal solid waste landfills. So municipal

3 solid waste landfills, yes, it would be available

4 to anyone. Legally I am not sure whether anyone

5 can go on any other site and ask for their annual

6 report, like chemical waste landfills. To answer

7 your question, we don't believe it would be

8 available to anyone except for municipal solid

9 waste landfills.

10 MR. VAN NESS: We will look into that.

11 BOARD MEMBER GIRARD: You see only that

12 one class of landfill having that annual report

13 available to members of the public?

14 MS. MUNIE: I believe that's probably

15 true.

16 BOARD MEMBER GIRARD: But it is available

17 to the Agency?

18 MS. MUNIE: It is available to the

19 Agency, yes.

20 BOARD MEMBER GIRARD: So it is public

21 information?

22 MS. MUNIE: It is available for the

23 Agency to see. It is not -- we do not have a

24 requirement in here that allows us to require that

KEEFE REPORTING COMPANY

Belleville, Illinois

1 they submit it to us.

2 MR. RAO: But most of the information

3 that is listed here the Agency does get that

4 information under other requirements or rules?

5 MR. BAKOWSKI: Right.

6 MS. MUNIE: Yes.

7 MR. RAO: Other information can be

8 available to the public?

9 MS. MUNIE: Right. The public would have

10 to go through our files. It is not available at

11 one report within our files but the information

12 itself is.

13 MR. BAKOWSKI: Under a FOIA request they

14 could specifically list all these documents and

15 obtain them through the Freedom of Information Act.

16 MR. HILBERT: They can FOIA all the

17 components of 504 separately from the Agency.

18 MS. MUNIE: Yes.

19 BOARD MEMBER GIRARD: I understand that

20 this annual report is basically a compilation of

21 quarterly groundwater monitoring reports and other

22 data which comes to the Agency and which would be

23 available at the Agency for inspection, but

24 certainly it is put together in a different way and

KEEFE REPORTING COMPANY

Belleville, Illinois

1 there are some items that, you know, may possibly

2 be of interest to the public, and I was just

3 wondering if the public then went to the Agency and

4 FOIAed the annual report for facilities which were

5 not municipal solid waste landfills may not be

6 available under statute or regulation, would the

7 Agency have to go to that facility to get a copy

8 and then supply it to the public? It seems like --

9 MR. BAKOWSKI: I am looking at my

10 attorneys here, but if has not been submitted to

11 the Agency and get a request for it under FOIA, I

12 don't think we are obligated to go out and get it.

13 The way this is set up, they have to keep it at the

14 facility and not submit it to us. If we have a

15 FOIA request for that, we have -- it would not be a

16 state record at that time.

17 BOARD MEMBER GIRARD: So then as one

18 consequence of this not being submitted to the

19 Agency, it is hidden from the public?

20 MS. MUNIE: Compiling in this manner it

21 could be considered hidden from the public. The

22 information would be available in our files and

23 would be available to the public but compiled in

24 the manner of annual reports, I don't believe it is

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1 available to the public.

2 BOARD MEMBER GIRARD: Well, so the

3 question I have then is, why doesn't the Agency

4 just get a copy of this annual report? I

5 understand you are trying to cut down on paperwork

6 and storing paper documents but nowadays, I mean,

7 you could get a computer disk of this annual report

8 once a year and it would be very easy to store and

9 wouldn't have these questions about whether or not

10 it is a available for the public because it would

11 be -- I see it as public information.

12 MR. VAN NESS: If I may, I suppose we

13 could address it in our subsequent written remarks,

14 but I think the question, again, is not public

15 information. The issue is the format, it seems to

16 me. Our thesis has been in this all of the

17 information that is compiled in the annual report

18 is already submitted on a far more current basis

19 four times a year in the quarterly reports. So the

20 loss is of format. I am not sure that there is any

21 public right to format. There certainly is a

22 public right to information, but our thesis is that

23 the information is in there. If someone wanted to

24 submit a FOIA request asking for the last four

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1 quarterly reports, they have the net effect -- they

2 have, in effect, I suppose a running annual report

3 that is probably more current than what they would

4 be able to get otherwise. If I submit a request

5 today for the most recent annual report I am

6 getting information that is 9 months old. On the

7 other hand, if I submit a request today for the

8 last four quarterly reports, I have information

9 that is not more than three months stale. It is

10 far more current. It may not be set out in the

11 exact same format. Frankly, I am not sure whether

12 one format is superior to the other for the purpose

13 of some member of the public, but it occurs to me

14 that if the data is there the information is there

15 and the public interest is served in either

16 respect, in either way. There is certainly nothing

17 in the statute that says that the public has a

18 right to information in a specific format as long

19 as the information is understandable and

20 available. So I think we need to understand what

21 the issue here is strictly format and not the

22 availability of information. Nevertheless, we will

23 be happy to submit the written response to you and

24 kind of discuss that issue. Perhaps we can lay out

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1 what the formatting differences are and address

2 those.

3 BOARD MEMBER GIRARD: Thank you for your

4 comments. I appreciate your concerns in trying to

5 reduce paperwork, and I agree that the data will be

6 available at the Agency in different forms than,

7 say, quarterly, biannual reports. However, I also

8 see evaluation of data here. I think that goes

9 beyond just having data available. There is lot of

10 data out there but, quite frankly, it is hard to

11 evaluate that data many times which determines what

12 people think is going on. So that is something

13 that we need to look at and hopefully you will

14 address in the comments, is whether or not the

15 evaluation of the data is still going to be there

16 for the public. Because it is the evaluation that

17 determines how that data is a used, how that data

18 is viewed, and what value is placed on that data.

19 So it is not just a matter of having the data in a

20 form available. It is a matter of how that data is

21 evaluated, which needs to be available to the

22 public.

23 MR. VAN NESS: I think I would agree with

24 that. You know, I have been working on the premise

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1 that the data is usable in either format. But I

2 think we do need to go back and address that and

3 see if there is information that becomes difficult

4 to the point of material concern as to whether a

5 member of the public is interested might get lost

6 going through the quarterly data and not have the

7 ability to analyze or evaluate what is in front of

8 them. I think that's a legitimate issue that we

9 can discuss and supply to the Board in writing.

10 BOARD MEMBER GIRARD: Thank you.

11 HEARING OFFICER TIPSORD: Let's go off

12 the record for a second.

13 (Discussion off the record.)

14 HEARING OFFICER TIPSORD: Back on the

15 record.

16 We have a second hearing scheduled in

17 this proceeding for November 19th in Chicago at

18 Room 11-504, I think it is. It is the Board's

19 conference room. We are trying to check into

20 getting a larger room although that may not be

21 necessary. If we do change it, it will be posted

22 at the desk at 11-500, so you will be able to find

23 it fairly easily.

24 We have set November -- after the

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1 discussion off the record we decided that November

2 12th will be the deadline for

prefiling testimony.

3 That is in the Board's office on November 12th.

4 Then we can proceed on the 19th. After the hearing

5 on the 19th we can discuss how best the proponents

6 see the proceeding going as far as the final

7 comment and all of that should come in, final

8 first -- pre first comments. We have first notice

9 at this time and also as a point I have noticed in

10 going through this there are some typographical

11 style errors some references to paragraphs,

12 subsections and things like that. If you would

13 like to take a look at those and present an errata

14 sheet it would be helpful to the Board. I found

15 some, but it is always helpful to have more eyes on

16 those kinds of things.

17 Was there anyone else here who wanted to

18 testify today or say anything on the record?

19 All right. Seeing nothing, I think that

20 pretty much concludes the business for today. I

21 think you all very much. It has been a very

22 productive hearing. I look forward to more comment

23 and seeing you on the 19th. This hearing is

24 closed.

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1 STATE OF ILLINOIS )

) SS

2 COUNTY OF MONTGOMERY)

3 C E R T I F I C A T E

5 I, DARLENE M. NIEMEYER, a Notary Public

6 in and for the County of Montgomery, State of

7 Illinois, DO HEREBY CERTIFY that the foregoing 57

8 pages comprise a true, complete and correct

9 transcript of the proceedings held on the 27th of

10 October

A.D., 1997, at the Illinois State Capitol

11 Building, Room 400, Springfield, Illinois, in the

12 matter of: Municipal Solid Waste Landfill Rules:

13 Amendments to 35 Ill. Adm. Code 811, 813, and 848,

14 in proceedings held before the Honorable Marie

15 Tipsord, Hearing Officer, and recorded in machine

16 shorthand by me.

17 IN WITNESS WHEREOF I have hereunto set my

18 hand and affixed my

Notarial Seal this 5th day of

19 November

A.D., 1997.

Notary Public and

22 Certified Shorthand Reporter and

Registered Professional Reporter

CSR License No. 084-003677

24 My Commission Expires: 03-02-99

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