BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS )
)
Petitioner, )
)
vs. ) No. PCB 00-212
)
KENNETH MORRISON, )
)
Respondent. )
The following is the transcript of a hearing held in
the above-entitled matter, taken stenographically by Brenda
L. Zeitler, CSR-RPR, License No. 084-004062, a notary public
within and for the County of DeWitt and State of Illinois,
before Mr. Steven C. Langhoff, Hearing Officer, at the
Livingston County Courthouse, Pontiac, Illinois, on the 27th
day of June, 2001, A.D., scheduled to commence at 11:00 a.m.
HEARING TAKEN BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
MR. STEVEN C. LANGHOFF, Hearing Officer
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(312) 814-4925
L.A. REPORTING (800) 419-3376
2
A P P E A R A N C E S:
ELIZABETH A. WALLACE
Senior Assistant Attorney General
Environmental Bureau North
188 West Randolph Street
Chicago, Illinois 60601
(312) 814-5396
On behalf of the Petitioner.
I N D E X
Page
Opening Statement by Ms. Wallace .............. 5
WITNESSES:
TODD MARVEL
Direct Examination by Ms. Wallace ......... 9
KENNETH KEIGLEY
Direct Examination by Ms. Wallace ......... 26
Closing Argument by Ms. Wallace ............... 35
EXHIBITS: Admitted
EXHIBIT NUMBER 1 .................... 9 ...... 9
Interim Opinion and Order
EXHIBIT NUMBER 2 .................... 19 ...... 22
Section 55.3 (d) Notice
EXHIBIT NUMBER 3 .................... 23 ...... 25
10/26/98 Letter
EXHIBIT NUMBER 4 .................... 29 ...... 31
06/24/98 Letter (Certified Mail,
Return Receipt)
EXHIBIT NUMBER 5 .................... 31 ...... 33
12/10/98 Letter
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1 HEARING OFFICER LANGHOFF: Good morning,
2 everyone. My name is Steven Langhoff. I am the Illinois
3 Pollution Control Board hearing officer who will be handling
4 this matter. This is PCB-00-212: People of the State of
5 Illinois versus Kenneth Morrison. For the record, it is
6 Wednesday, June 27, 2001; and we are beginning at 11:04 a.m.
7 I want to note for the record that there are
8 no members of the public present. Members of the public are
9 encouraged and allowed to provide public comment if they so
10 choose.
11 At issue in this case are allegations proven
12 in a complaint filed by the people of the state of Illinois
13 or "the State." The violations proven in the complaint are
14 for failure to perform a corrective action pursuant to
15 notice from the Illinois Environmental Protection Agency or
16 "Agency" at a parcel of land located on Coalville Road,
17 Streator, Livingston County, Illinois, or "the site."
18 These actions have been found by the Board to
19 be a violation of Section 55.3 of the Environmental
20 Protection Act or "Act". See 415 ILCS 5/55.3 (1998).
21 The Board has ordered Kenneth Morrison, or the
22 respondent, to reimburse the agency in the amount of
23 $30,902.52. The State also seeks punitive damages pursuant
24 to 55.3(g) of the Act. The Board has directed that a
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1 hearing be held on the issue of whether and in what amount
2 punitive damages should be imposed on the respondent.
3 It is my responsibility to assess the
4 credibility of any witnesses giving testimony today, and I
5 will do so on the record at the conclusion of the
6 proceedings.
7 We will begin with opening statements from the
8 parties and then will proceed with the State's case followed
9 by Mr. Morrison having an opportunity to put on a case in
10 his behalf. We will conclude with any closing arguments
11 that the parties wish to make, and then we will discuss off
12 the record a briefing schedule, which will be set on the
13 record at the conclusion of the proceedings.
14 For the record, the respondent, Kenneth
15 Morrison, is not present today at this hearing.
16 The Board's procedural rules in the Act
17 provide that members of the public shall be allowed to speak
18 or submit written statements at hearing. Any person
19 offering such testimony today shall be subject to
20 cross-examination by both of the parties. Any such
21 statements offered by members of the public must be relevant
22 to the case at hand. I will call for any statements from
23 members of the public at the conclusion of the proceedings.
24 This hearing was noticed pursuant to the Act
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1 and the Board's rules and regulations and will be conducted
2 pursuant to Sections 101.600 through 101.632 of the Board's
3 procedural rules.
4 At this time I'll ask the parties to make
5 their appearances on the record, beginning with the State.
6 MS. WALLACE: Elizabeth Wallace with the
7 Illinois Attorney General's Office.
8 HEARING OFFICER LANGHOFF: Thank you.
9 Do we have any preliminary matters that we
10 need to discuss on the record?
11 MS. WALLACE: No, we do not.
12 HEARING OFFICER LANGHOFF: Are there any
13 outstanding or prehearing motions that the parties would
14 like to present before we proceed?
15 MS. WALLACE: No.
16 HEARING OFFICER LANGHOFF: Thank you.
17 Would the State like to give a brief opening
18 statement on behalf of their client, Ms. Wallace?
19 MS. WALLACE: Yes, I would.
20 OPENING STATEMENT
21 BY MS. WALLACE:
22 Good morning, Mr. Hearing Officer. Again, my
23 name is Elizabeth Wallace, and I'm a senior assistant
24 attorney general representing the complainant in this
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1 action, the People of the State of Illinois.
2 We are here today pursuant to the Boards's
3 order of January 18, 2001, directing that a hearing be held
4 to determine whether and in what amount punitive damages
5 should be imposed in this matter.
6 The State filed a complaint in this matter on
7 May 31, 2000, against Kenneth Morrison seeking the
8 reimbursement of costs incurred by the Illinois EPA to
9 remove used and waste tires from property owned by Kenneth
10 Morrison and for punitive damages.
11 For the record, Mr. Morrison has never
12 responded to any of the pleadings in this matter nor has he
13 participated in any telephone conferences with the Pollution
14 Control Board hearing officer.
15 On December 14, 2000, the State filed a motion
16 for summary judgement, asking the Board to order Mr.
17 Morrison to reimburse the Illinois EPA for costs incurred in
18 removing used or waste tires from his property and for
19 punitive damages.
20 On January 18, 2001, the Board entered partial
21 summary judgment against Kenneth Morrison and ordered
22 Mr. Morrison to pay to the State the costs incurred for
23 performing the tire removal at the site. The Board ordered
24 Mr. Morrison to pay $30,902.52 to the State of Illinois.
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1 There's a section in the Illinois
2 Environmental Protection Act, which I'll refer to as "the
3 Act," Section 55.3(h), which allows the State to seek and
4 obtain punitive damages if a person found liable under
5 Section 55.3(g) of the Act failed to take corrective action
6 pursuant to a notice sent by the Illinois EPA so long as the
7 failure to act was without sufficient cause.
8 Section 55.3(h) provides that punitive damages
9 can be imposed in an amount at least equal to or not more
10 than two times the costs incurred by the State.
11 In the complaint, the State sought punitive
12 damages for Mr. Morrison's failure to perform the corrective
13 action pursuant to notice without sufficient cause.
14 In the Board's order granting summary
15 judgment, the Board declined to impose punitive damages for
16 Mr. Morrison's failure to take corrective action pursuant to
17 notice. The Board found that there was a question of fact
18 as to whether Mr. Morrison had sufficient cause to fail to
19 take such action. This is the only issue that we address at
20 this hearing.
21 In order for the Board to impose punitive
22 damages pursuant to Section 55.3(h), the Board must find
23 three things, first, that a person received notice from the
24 Illinois EPA to perform corrective action at their site,
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1 second, that that person is liable to the Illinois EPA under
2 Section 55.3(g) of the Act for the costs incurred for
3 corrective action or removal of the used or waste tires from
4 the site and, third, that the person failed to take
5 corrective action without sufficient cause.
6 Here, the Board has already found that
7 Mr. Morrison received notice from the Illinois EPA and also
8 that Mr. Morrison is liable under Section 55.3(g) to the
9 Illinois EPA for the costs incurred.
10 Today at this hearing we will show that
11 Mr. Morrison failed to take corrective action without
12 sufficient cause and ask the Board to impose punitive
13 damages pursuant to Section 55.3(h).
14 Testimony will be presented by Mr. Todd
15 Marvel, manager of the used tire unit at the Illinois EPA,
16 and Mr. Ken Keigley, a field inspector with the Illinois
17 EPA who inspected the Morrison property and spoke with
18 Mr. Morrison. This testimony will support the State's
19 position that Mr. Morrison failed to take action to perform
20 corrective action without sufficient cause; and, for this
21 reason, the Board should award punitive damages in the full
22 amount provided by statute, which is $61,805.04.
23 That's all.
24 HEARING OFFICER LANGHOFF: Thank you,
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1 Ms. Wallace. Please call your first witness.
2 MS. WALLACE: Before we get started, I'd like
3 to have the Board's order granting summary judgment entered
4 as part of the record.
5 So if you could mark this -- I've already
6 marked it, actually -- Exhibit 1. And I move to enter the
7 Board's order.
8 HEARING OFFICER LANGHOFF: So moved. Exhibit
9 1 is accepted into evidence.
10 MS. WALLACE: I'd like to call Mr. Todd
11 Marvel.
12 (Witness sworn.)
13 TODD MARVEL,
14 called as a witness, after being first duly sworn, was
15 examined and testified upon his oath as follows:
16 DIRECT EXAMINATION
17 BY MS. WALLACE:
18 Q Mr. Marvel, would you please state your name
19 for the record and spell it?
20 A My name is Todd Marvel. The first name is
21 T-o-d-d. Last name is M-a-r-v-e-l. And I'm the manager of
22 the used tire unit with the Illinois Environmental
23 Protection Agency.
24 Q How long have you been employed there?
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1 A I've been with the Illinois EPA since February
2 of 1987.
3 Q Could you briefly describe your positions at
4 the Illinois EPA starting with your position when you first
5 began there and finishing up with what your position is
6 today?
7 A I began in February of 1987 as a field
8 inspector in our Maywood regional office, which is in the
9 Chicago area. I primarily inspected hazardous and solid
10 waste facilities in the Chicago area that were regulated
11 under our statutes and regulations.
12 In January of 1989, I moved to our
13 headquarters in Springfield, Illinois, where I continued to
14 be in the field operations section. However, I was a
15 quality assurance/quality control person for the hazardous
16 and solid waste programs, reviewing inspection reports,
17 drafting and ensuring that policies and procedures were
18 followed.
19 And then, in approximately 1993, I became the
20 RCRA coordinator. RCRA is R-C-R-A. It stands for the
21 Resource Conservation and Recovery Act. I became the RCRA
22 coordinator for the Bureau of Land, which basically means I
23 was the liaison between the Illinois EPA and the United
24 States Environmental Protection Agency on matters related to
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1 the RCRA Subtitle C program, which is the federal hazardous
2 waste management program.
3 We have operated under a grant with USEPA, and
4 we have certain commitments that we have to follow. We have
5 to maintain our authorization as a hazardous waste program
6 and just general communication with USEPA on those matters.
7 Then, in 1997, I was promoted to manager of
8 the used tire unit. And I also have retained my duties as
9 RCRA coordinator. It was in November of 1997 that I assumed
10 these additional responsibilities. And I'm also the
11 assistant manager of our field operations section. And I
12 have served in that capacity since November of 1997.
13 Q As manager of the used tire unit, could you
14 generally describe what your duties are?
15 A Our used tire program is a two-phased program.
16 We have a clean-up program, and we have a regulatory
17 program. Under the Environmental Protection Act and the
18 funding that we receive from the used tire management fund,
19 well over 90 percent of the activities and resources that we
20 dedicate in our program are for those two activities, the
21 clean-up and regulatory programs.
22 I manage staff of approximately 15 people
23 throughout the state. And we do clean-ups at used and waste
24 tire facilities. We do several forms of clean-ups. We have
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1 a network of contractors that we work with to conduct the
2 clean-ups. And then we have a regulatory program where we
3 do inspections at used tire handlers. We initiate
4 enforcement actions, recommend enforcement actions, where
5 appropriate, and then work with our legal staff and local
6 state's attorneys and the Attorney General's office on those
7 enforcement matters.
8 Q Why is it necessary to have these regulations
9 for tire facilities?
10 A Well, the regulations were adopted in response
11 to the Used Tire Management Act, which was legislation that
12 was passed, I believe, in 1992, which gave the Illinois
13 EPA the authority to adopt the regulations.
14 The statutes themselves first were adopted
15 primarily because of the presence of the Asian Tiger
16 Mosquito in the state of Illinois and its proliferation over
17 the years throughout the state -- throughout the country
18 and, of course, throughout the state of Illinois.
19 At the beginning of the program, we estimated
20 that there were approximately 15 million used and waste
21 tires in stockpiles throughout the state of Illinois that
22 posed several threats, primarily the threat of the Asian
23 Tiger Mosquito, which carries the encephalitis virus and
24 other viral diseases.
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1 And these stockpiles also presented a fire
2 hazard. And then the ensuing runoff from putting water on
3 these fires can contaminate waters of the state and the
4 land. These stockpiles also presented a -- they generally
5 resulted in the dumping of other materials besides tires at
6 these locations.
7 And the legislature also stated that the used
8 tires that were in these stockpiles presented a resource
9 through energy recovery or other recycling methods. And
10 that was primarily the reason for the adoption of the
11 legislation that was passed, the Used Tire Management Act,
12 and then the regulations ensued.
13 We wanted to provide for an opportunity to
14 clean up these stockpiles and also to establish standards
15 for the current generation of used tires throughout the
16 state so that they would not end up in stockpiles.
17 Q So the stockpiled tires present a threat to
18 human health and the environment if they are left unattended
19 and stockpiled?
20 A That is correct.
21 Q You talked earlier about the clean-up
22 component of the used tire program?
23 A Yes.
24 Q Could you take us through a clean-up process
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1 starting with when you find a facility that's not in
2 compliance and then until the time that the Illinois
3 EPA goes in and conducts a clean-up? What is the process
4 that you go through?
5 A We have two different definitions of -- well,
6 I'll say "used tires." We have a definition of a used tire,
7 which is a tire that's a worn, damaged, or defective tire
8 that is not on a vehicle wheel rim. And then we have a
9 "waste tire." A waste tire is a used tire that's been
10 improperly disposed of.
11 When we find a tire that's been improperly
12 disposed of or, in other words, dumped, we have several
13 different options. We have what's called a consensual
14 removal program, which is a provision under the Act that
15 allows the State of Illinois to use the Used Tire Management
16 Fund and our contractors to remove up to 1,000 used or waste
17 tires from an individual's property. This is a one-time
18 clean-up action, and the property owner has to sign a
19 consensual removal agreement. And we do look into that
20 option.
21 However, obviously, there are many times there
22 is much more than 1,000 tires at a site in which case we
23 have options involving a tire removal agreement, which we
24 may or may not go with, depending on the threat that the
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1 tires pose and the past actions of the property owner.
2 Then we have this provision under --
3 Q Excuse me. I'm sorry to cut you off.
4 Is the tire removal agreement -- that's an
5 agreement with the owner operator of the tires?
6 A That's correct, the property owner.
7 Q And under that agreement, they would remove
8 the tires?
9 A That's correct. And there are specific
10 provisions in the Act and the regulations addressing the
11 tire removal agreement.
12 When a stockpile of tires poses a threat to
13 human health or the environment, we have the authority under
14 Section 55.3(d) of the Act to issue a notice to the owner or
15 operator of the site. And this notice gives them -- we have
16 to give them the opportunity to perform the clean-up action
17 themselves. It's basically a notice that formalizes our
18 opinion that the tires pose a threat to human health and the
19 environment.
20 Once that notice is issued, they can submit a
21 clean-up plan in some instances. Otherwise, we will give
22 them a deadline to remove the tires, depending on how many
23 tires are there.
24 And then, if they submit a clean-up plan, we
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1 can establish a tire removal agreement under that notice.
2 If there's no response, then we have the authority under the
3 Act to go in and take preventative and corrective actions to
4 mitigate the threat. And we use a contractor to do that.
5 After that's done, then we have the statutory
6 authority to pursue recovery of our costs and then the
7 punitive damages, as well.
8 Q So during that process, it sounds like there's
9 different opportunities for the owner operator of these
10 tires that are disposed of improperly, in violation of the
11 law, to get assistance from the Illinois EPA to remove those
12 tires?
13 A That is correct. It is fairly unusual for us
14 to go straight to a 55.3(d) notice without first trying to
15 reach some kind of agreement with the property owner, either
16 through a tire removal agreement or a consensual removal
17 agreement.
18 Q In the consensual removal agreement, the
19 Illinois EPA does the removal; and do you do cost recovery
20 against the owner operator in that case?
21 A There are no cost recovery provisions under
22 the consensual removal agreement. It would be only under
23 55.3(d) outside of that consensual removal agreement.
24 However, the consensual removal agreement is
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1 designed for individuals who had tires on their property at
2 the time that the Used Tire Management Act was enacted.
3 It's not used for any business that generates used tires or
4 for anyone who has dumped used tires on a property
5 improperly, particularly since the passage of the Act.
6 Q And if an owner operator of the tires wanted
7 some time to do a clean-up because they didn't have the
8 money to do it all at one time, would the Illinois EPA work
9 with that party to allow them to take some time to do the
10 clean-up?
11 A Yes, we would.
12 Q You mentioned a notice that went out to
13 parties to notify them of this situation. Is that a notice
14 under Section 55.3(d) of the Act?
15 A Yes, that's correct. We commonly refer to it
16 as a "55.3(d) Notice." I think the formal name is "a notice
17 pursuant to Section 55.3(d) of the Act."
18 Q And, generally, what does a 55.3(d) notice
19 say?
20 A Generally, the Section 55.3(d) notice will
21 state that the Illinois EPA believes that this accumulation
22 of tires poses a threat to human health or the environment.
23 There is a section -- I believe it's entitled
24 "Identified Response Action" -- that gives the owner of the
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1 site an opportunity to remove the tires either by a
2 specified deadline or the opportunity to submit a clean-up
3 plan. And it also includes a requirement that they maintain
4 records, primarily receipts from the disposal of the tires,
5 for our inspection to demonstrate that the tires were
6 properly disposed of.
7 And then the notice also provides the --
8 reiterates the statutory provisions for cost recovery and
9 punitive damages. And it also specifies the different
10 corrective and preventative actions that the agency may take
11 under the notice.
12 I wanted to add from your earlier question
13 that we are statutorily obligated to allow the property
14 owner to remove the tires themselves before we remove the
15 tires with our contractor.
16 Q Do you generally receive responses to these
17 55.3(d) notices?
18 A We do receive responses in some instances.
19 However, there are a significant -- there is a significant
20 percentage of the notices that we issue that do not solicit
21 a response.
22 Q If you got a response and, again, someone
23 needed some time, would you allow them time? Would you
24 assist them in allowing them to clean up the tires
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1 themselves?
2 A Yes, we would. There are certain provisions
3 in a clean-up plan or in a response that we look for: A
4 fair amount of detail as to the rate of clean-up, either on
5 a weekly or monthly basis, and what transporter they're
6 going to use and where the tires are going to go to.
7 If a response doesn't include that type of
8 detail, then we will work with and talk to the property
9 owner and issue a letter that clarifies the agreement. We
10 won't just reject it because it doesn't meet all of our
11 requirements. We will work with the property owner to reach
12 a modified agreement that will have the level of detail that
13 we're looking for.
14 Q I've got Exhibit 2, which I've already marked.
15 Mr. Marvel, I am showing you a document that is marked
16 Exhibit 2. Would you please take a look at that?
17 Can you tell us what that document is?
18 A This document is a notice pursuant to Section
19 55.3(d) of the Environmental Protection Act, which is issued
20 under our authority under Section 55.3(d) of the Act.
21 Q Who is that particular notice directed to?
22 A It's directed to Kenneth Morrison.
23 Q Would you please turn your attention to the
24 proof of service which is attached towards the back of the
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1 document.
2 HEARING OFFICER LANGHOFF: Go off the record
3 for just a second.
4 (Discussion held off the record.)
5 A Yes, I see the proof of service.
6 Q Thank you. And who was this document served
7 on, according to this proof of service?
8 A It was served on Mr. Kenneth Morrison.
9 Q What date was it mailed to Mr. Morrison?
10 A The document was mailed on August 11, 1998.
11 Q Do you know who Mr. Kenneth Morrison is, why
12 he received this?
13 A Mr. Kenneth Morrison is the owner of the
14 property where the used tires were located that is the
15 subject of the 55.3(d) notice.
16 Q Can you generally describe what this document
17 says?
18 A The notice itself?
19 Q The notice, yes.
20 A Well, the notice states that Mr. Kenneth
21 Morrison has caused or allowed the open dumping at this
22 particular site that this document is reference to and that
23 the Illinois EPA finds that it's a threat to the
24 environment.
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1 We have made some determinations, as I said
2 before, that the site presents a threat to pubic health or
3 the environment. And then we, under the identified response
4 action, which I referenced earlier, we direct Mr. Morrison
5 to remove all used and/or waste tires located at the site by
6 or before October 1, 1998, and for Mr. Morrison to make all
7 business records and receipts available for our inspection.
8 And then the rest of the notice is our
9 standard legal and statutory language pursuant to Section 55
10 of the Act.
11 Q Does the notice warn Mr. Morrison that he
12 would be responsible for costs incurred by the State and
13 also for punitive damages?
14 A Yes, it does.
15 Q Do you know if this notice was prepared by a
16 person with knowledge of or made from information given by a
17 person with knowledge of the information appearing on it?
18 A Yes, it was.
19 Q Is it the regular practice of the Illinois
20 EPA to make this type of document?
21 A Yes, it is.
22 Q Was this document prepared in the course of a
23 regularly conducted business activity?
24 A Yes, it was.
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1 MS. WALLACE: Mr. Hearing Officer, I move to
2 admit Exhibit Number 2 into evidence.
3 HEARING OFFICER LANGHOFF: Exhibit Number 2 is
4 admitted.
5 BY MS. WALLACE:
6 Q Mr. Marvel, I'd like to direct your attention
7 to the last two pages of the document.
8 A Okay.
9 Q Could you please tell us what those are?
10 A Pages 3 and 4 of the notice?
11 Q The last two pages that are attached to the
12 document.
13 A Yes. This notice is, as a matter of practice,
14 sent certified mail. And the last two documents are what we
15 refer to as the "white card" and the "green card" that's
16 used in sending certified mail. It documents who the notice
17 was addressed to. It contains an article number, which is a
18 tracking number, on what we call the "green card" or the
19 Receipt for Certified Mail. And then it's got the signature
20 of the addressee upon delivery and date of delivery and a
21 stamp from the post office.
22 Q And who was this green card addressed to?
23 A It was addressed to Mr. Kenneth Morrison.
24 Q Is it signed by Mr. Morrison?
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1 A Yes, it is.
2 Q Does it have a date of delivery?
3 A Yes, it does.
4 Q What is that date?
5 A August 17, 1998.
6 Q Did the Illinois EPA receive a response to
7 this notice from Mr. Morrison?
8 A No, we did not.
9 Q If you had received a response, would there
10 have been an opportunity for Mr. Morrison to come in and
11 work with you to clean up his tires from his site?
12 A Yes, there would have been.
13 Q I have exhibit number --
14 A I just would add that it's not only a common
15 practice of ours, but it's also a statutory obligation to
16 allow the property owner to conduct whatever preventive or
17 corrective action is needed.
18 Q I have Exhibit Number 3, which I have already
19 marked.
20 Mr. Marvel, I'm showing you a document that's
21 been marked as Exhibit 3. Would you please take a look at
22 that.
23 A Okay.
24 Q Can you tell us what that is?
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1 A This is letter that, as a normal course of
2 business, I send to the property owner which is the subject
3 of the notice. And it's just a reiteration that we've
4 issued a notice to you and that we've received no response
5 and that we will be removing the tires.
6 There is no statutory obligation to send this
7 letter. However, as a common business practice, we do so to
8 reiterate what actions have taken place and what our
9 intentions are.
10 Q What date did this letter go out?
11 A This letter was sent on October 26, 1998.
12 Q Who was it sent to?
13 A It was sent to Mr. Kenneth Morrison.
14 Q And who prepared this letter?
15 A I prepared this letter.
16 Q And, again, it references the notice, the
17 55.3(d) notice, that already had gone out to Mr. Morrison?
18 A Yes, it does.
19 Q Is it the regular practice of the Illinois
20 EPA to make this type of document?
21 A Yes, it is.
22 Q Was this document prepared in the course of a
23 regularly conducted business activity?
24 A Yes, it was.
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1 MS. WALLACE: Mr. Hearing Officer, I move to
2 admit Exhibit Number 3 into evidence.
3 HEARING OFFICER LANGHOFF: Exhibit 3 is
4 admitted.
5 BY MS. WALLACE:
6 Q Mr. Marvel, to your knowledge, has
7 Mr. Morrison ever responded to any notices or letters that
8 the Illinois EPA sent him regarding these tires?
9 A To my knowledge, no, there has been no
10 response to any notice regarding the tires.
11 Q To your knowledge, did Mr. Morrison ever make
12 any effort to remove the waste tires on his facility?
13 A To my knowledge, there has been no effort to
14 do so.
15 MS. WALLACE: Thank you, I have nothing
16 further.
17 HEARING OFFICER LANGHOFF: Thank you. You may
18 step down.
19 Next witness, Ms. Wallace.
20 MS. WALLACE: I'd like to call Mr. Kenneth
21 Keigley.
22
23
24
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1 (Witness sworn.)
2 KENNETH KEIGLEY,
3 called as a witness, after being first duly sworn, was
4 examined and testified upon his oath as follows:
5 DIRECT EXAMINATION
6 BY MS. WALLACE:
7 Q Mr. Keigley, would you please state your name
8 for the record and spell it?
9 A Kenneth Keigley, K-e-n-n-e-t-h K-e-i-g-l-e-y.
10 Q Where are you currently employed?
11 A I work for the Illinois Environmental
12 Protection Agency in the Champaign region, Champaign,
13 Illinois.
14 Q How long have you been there?
15 A Approximately five years.
16 Q Can you briefly describe what your job
17 responsibilities have been, starting with when you started
18 with the Illinois EPA and finishing with what you are
19 currently doing there now?
20 A Sure. When I started out, I was primarily
21 inspecting used tire sites to determine the regulatory
22 status and their compliance status. I did this until about
23 two years ago, and then I started inspecting RCRA sites.
24 Q What are your job responsibilities right now?
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1 A Right now, I inspect RCRA sites, hazardous
2 waste sites.
3 Q And are used tire facilities part of that
4 program?
5 A Not part of that program, but if I happen on
6 to waste tires that are a problem, I go ahead and perform
7 those inspections, too.
8 Q So you go out of the office to the sites in
9 different facilities and inspect them for compliance?
10 A Yes, I do.
11 Q Are you familiar with the property owned by
12 Mr. Kenneth Morrison?
13 A Yes, I am.
14 Q And how did you become familiar with that
15 property?
16 A I inspected that property in March of 1998.
17 Q Do you recall whether you spoke to
18 Mr. Morrison during that inspection in March of 1998?
19 A Mr. Morrison wasn't present during that
20 inspection -- was not present.
21 Q What did you see on the site when you
22 inspected the facility?
23 A Used tires scattered throughout the site and
24 waste consisting of broken furniture, cloth, plastic,
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1 dimensional lumber scattered around the site.
2 Q You say you went there in March of 1998 to
3 perform an inspection there?
4 A Yes.
5 Q Did you ever have occasion to go back to that
6 site after the first inspection that you made?
7 A Yes. Later in the year -- and I'm not certain
8 exactly what month -- I went out to meet the USEPA site
9 manager that was overseeing hazardous waste clean-up at the
10 site.
11 Q Were the tires still on the property at that
12 time?
13 A Yes, they were.
14 Q And during that visit, do you recall whether
15 or not you met Mr. Morrison?
16 A I did meet Mr. Morrison on that visit.
17 Q And did you speak to him?
18 A Yes, I did.
19 Q Can you tell us what you said to him and what
20 he said to you?
21 A Yes. I told him that the Illinois
22 Environmental Protection Agency was in the process of
23 setting things up to remove the tires as a threat to the
24 environment. And he asked me at the time if he could remove
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1 the tires before we did. And I told him that, yes, he
2 could. It was a fairly short conversation.
3 Q So based on your conversation, do you believe
4 that Mr. Morrison knew that the Illinois EPA was going to
5 come in and do a tire removal at this property?
6 A Yes, he did know that.
7 Q I have Exhibit 4, which I've already marked.
8 Mr. Keigley, I'm handing you a document that we've marked as
9 Exhibit 4. Would you please take a moment and look at that.
10 Have you seen that document before?
11 A Yes, I have.
12 Q Can you tell us what it is?
13 A It's a violation notice that is issued
14 pursuant to Section 31 of the Act, the Illinois
15 Environmental Protection Act.
16 Q Who did this violation notice go to?
17 A Mr. Kenneth Morrison.
18 Q Can you tell me who signed this letter, which
19 is the violation notice?
20 A Richard Gerard, my supervisor.
21 Q Do you know whether he prepared this violation
22 notice?
23 A I prepared the violation notice.
24 Q You prepared the violation notice. Well, why
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1 did he sign it and not you?
2 A He reviews and approves all the documents that
3 are sent out of the Champaign region.
4 Q Can you generally describe the information
5 which is in the violation notice?
6 A It's notifying Mr. Morrison that the agency
7 believes that there are violations of the Environmental
8 Protection Act for regulations on property controlled or
9 owned by him and lists the violations and the reason why we
10 believe they are violations and provides corrective actions
11 and deadline dates for correcting the problems.
12 Q And where did you get the information to put
13 into this violation notice?
14 A The information I got either from the Illinois
15 Environmental Protection Act or 35 Illinois Administrative
16 Code.
17 Q What about the factual information about the
18 particular violations? Where did you get that information?
19 A Well, actually from the inspection, observing
20 the violations personally on the site.
21 Q And that was the inspection that took place
22 when?
23 A In March of 1998.
24 Q Does this violation notice talk about tires
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1 being at the facility?
2 A Yes, it does.
3 Q I'd like to direct your attention to the last
4 two pages of this document. Does the notice direct
5 Mr. Morrison to remove the tires?
6 A Yes, it does.
7 Q And does it give a date by which Mr. Morrison
8 should remove those tires?
9 A Yes, it does.
10 Q Is it the regular practice of the Illinois
11 EPA to prepare and send out these violation notices?
12 A Yes, it is.
13 Q Was this document prepared in the course of
14 regularly conducted business activity?
15 A Yes.
16 MS. WALLACE: Mr. Hearing Officer, I move to
17 admit Exhibit Number 4 into evidence.
18 HEARING OFFICER LANGHOFF: Exhibit Number 4 is
19 admitted.
20 BY MS. WALLACE:
21 Q I have Exhibit Number 5, which is marked. Mr.
22 Keigley, I'm showing you a document that's been marked
23 Exhibit Number 5. Would you please take a look at that.
24 Have you seen that document before?
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1 A Yes, I have.
2 Q Can you tell us what it is?
3 A It's a letter prepared by me and signed by my
4 supervisor to Mr. Morrison memorializing the conversation I
5 had with him on December the 8th of '98 over the telephone.
6 Q And who did you say prepared this letter?
7 A I prepared the letter.
8 Q Again, it was signed by your supervisor?
9 A Yes.
10 Q Do you know whether the information in the
11 letter is accurate?
12 A Yes, it is accurate.
13 Q And, again, could you describe what is the
14 contents of this letter?
15 A Mr. Morrison had called the office and asked
16 if he would be allowed to remove the tires before the agency
17 conducted their removal. I told him that he would be
18 allowed to do that, and I furnished him with an application
19 to apply to be a used tire transporter so that he could haul
20 the tires himself.
21 Q I believe you said the date of the letter, but
22 I don't recall.
23 A It's December 10, 1998.
24 Q Is it the regular practice of the Illinois
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1 EPA to write such letters?
2 A Yes, it is.
3 Q Was this letter prepared in the course of a
4 regularly conducted business activity?
5 A Yes, it was.
6 MS. WALLACE: Mr. Hearing Officer, I move to
7 admit Complainant's Exhibit Number 5 into evidence.
8 HEARING OFFICER LANGHOFF: Exhibit Number 5 is
9 admitted.
10 BY MS. WALLACE:
11 Q Did the Illinois EPA receive a response to
12 this letter from Mr. Morrison?
13 A No, we didn't.
14 Q To your knowledge, did Mr. Morrison ever make
15 any effort to remove any of the used or waste tires from his
16 property?
17 A No, he did not.
18 MS. WALLACE: I have nothing further. Thank
19 you.
20 HEARING OFFICER LANGHOFF: Thank you,
21 Ms. Wallace. Do you have anything further?
22 MS. WALLACE: No. We have no more witnesses.
23 HEARING OFFICER LANGHOFF: I'd like to go off
24 the record for just a moment, please.
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1 (Discussion off the record.)
2 HEARING OFFICER LANGHOFF: We've just had an
3 off-the-record discussion regarding the filing of post
4 hearing briefs. The parties and the hearing officer have
5 agreed to a briefing schedule. Before we get into closing
6 arguments, I will go ahead and read that schedule into the
7 record.
8 The transcript of these proceedings should be
9 available from the court reporter by July 10, 2001. I will
10 establish a short public comment period of seven days. The
11 parties know to talk to the court reporter following the
12 hearing regarding the availability of the transcript.
13 The State's brief will be due by August 9,
14 2001. The mailbox rule will not apply. The Respondent's
15 brief, if any, will be due August 23, 2001. And the mailbox
16 rule will not apply.
17 The transcript is usually put on the Board's
18 website within a few days of the availability. I would just
19 like to note that our website address is
20 www.ipcb.state.il.us.
21 All post hearing comments must be filed in
22 accordance with Section 101.628 of the Board's procedural
23 rules. Public comments must be filed within seven days.
24 The mailbox rule set forth at 35 Ill. Adm.
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1 Code 101.102 will apply to any post hearing filings. I
2 don't know if I said that earlier, but the mailbox rule will
3 apply to any post hearing comments by the public.
4 At this time I would like to ask: Are there
5 any members of the public present that want to make
6 statements on the record? For the record, there is one
7 member of the public present. Do you want to make any kind
8 of a statement, sir?
9 AUDIENCE MEMBER: No. Thank you.
10 HEARING OFFICER LANGHOFF: Seeing none, we
11 will move to the State's closing argument. Ms. Wallace?
12 MS. WALLACE: Thank you. Mr. Morrison had
13 ample opportunity and notice to perform a removal of the
14 waste and used tires from his property.
15 On June 24, 1998, the Illinois EPA sent him a
16 violation notice giving him until September 1, 1998, to
17 remove the tires. Mr. Morrison did not respond. On August
18 11, 1998, the Illinois EPA sent a notice pursuant to Section
19 55.3(d) of the Act, again advising Mr. Morrison to remove
20 the tires on his site, this time by October 1, 1998. Again,
21 Mr. Morrison did not respond.
22 On October 26, 1998, the Illinois EPA sent
23 another letter to Mr. Morrison warning him that the Illinois
24 EPA would be removing the tires from his site and that he
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1 would be responsible for the costs incurred and also for
2 punitive damages. No response.
3 Kenneth Keigley, an Illinois EPA inspector who
4 testified here today, said he spoke with Mr. Morrison at the
5 Morrison facility regarding the tires on the site. Again,
6 Mr. Morrison took no action.
7 Finally, the Illinois EPA sent a letter to
8 Mr. Morrison on December 10, 1998, stating that if
9 Mr. Morrison wanted to, he could remove the tires himself
10 and also putting him on notice that the Illinois EPA would
11 perform the removal as soon as a contractor could be
12 scheduled. Mr. Morrison took no steps to remove the tires.
13 The Act provides that punitive damages may be
14 assessed if a person failed to take corrective action
15 without sufficient cause. As the record shows, Mr. Morrison
16 ignored the Illinois EPA's notices and letters regarding the
17 ongoing violation except for one telephone call he
18 apparently made to the Illinois EPA.
19 Mr. Morrison showed a complete disregard for
20 compliance with the law by ignoring the numerous warnings
21 sent by the Illinois EPA. The Board should not allow Mr.
22 Morrison's nonresponsiveness to be a reason for not imposing
23 punitive damages. He cannot be allowed to benefit because
24 he chose not to respond to the many notices sent by the
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1 Illinois EPA.
2 Penalties were included in the statute to
3 encourage cooperation and clean-up of waste and used tires.
4 If the Board does not impose penalties in this case, it will
5 send the wrong message to those people who fought the law by
6 illegally disposing of waste and used tires and then
7 ignoring the Illinois EPA when it comes time to clean them
8 up.
9 Mr. Morrison was given ample notice and
10 opportunity to clean up his site prior to the Illinois
11 EPA going in and doing the clean-up. He refused to clean up
12 his own site. The facts show that Mr. Morrison failed by
13 choice and without sufficient cause to take corrective
14 action pursuant to notice, and the Board should impose the
15 maximum penalty allowed by law in the amount of $61,805.01.
16 Thank you.
17 HEARING OFFICER LANGHOFF: Thank you,
18 Ms. Wallace.
19 I'm required to make a statement as to the
20 credibility of witnesses testifying during this hearing.
21 The statement is to be based on my legal judgment and
22 experience. And, accordingly, I state that I have found all
23 the witnesses testifying today to be credible. Credibility
24 should not be an issue for the Board to consider in
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1 rendering a decision in this case.
2 At this time, I would like to conclude the
3 proceedings. It is Wednesday, June 27, 2001, at
4 approximately 11:52 a.m. And we stand adjourned.
5 I thank you all for your participation.
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7 (HEARING CONCLUDED.)
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1 COUNTY OF DeWITT )
) SS
2 STATE OF ILLINOIS )
3
4 CERTIFICATE OF REPORTER
5
6 I, BRENDA L. ZEITLER, CSR-RPR, Notary Public in
7 and for the County of DeWitt, State of Illinois, DO HEREBY
8 CERTIFY that the foregoing transcript, consisting of pages 1
9 through 38, both inclusive, constitutes a true and accurate
10 transcript of the original stenographic notes recorded by me
11 of the foregoing proceedings in the case of People of the
12 State of Illinois versus Kenneth Morrison before Steven
13 Langhoff, Hearing Officer, on the 27th Day of June, 2001.
14
15
Dated this 5th day of July, 2001.
16
17
18 ________________________________________
BRENDA L. ZEITLER, CSR-RPR
19 Notary Public
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