1
      
      
      
    1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
      
    2 COMMUNITY LANDFILL COMPANY )
    and CITY OF MORRIS, )
    3 )
    Petitioners, )
    4 )
    vs ) No. PCB 01-170
    5 ) (Permit Appeal, Land)
    ILLINOIS ENVIRONMENTAL )
    6 PROTECTION AGENCY, )
    )
    7 Respondent. )
      
    8
    VOLUME I
    9
      
    10 Record of Proceedings taken before
      
    11 Hearing Officer Bradley P. Halloran, taken
      
    12 stenographically before GEANNA M. IAQUINTA, CSR,
      
    13 a notary public within and for the County of
      
    14 Cook and State of Illinois, at 1320 Union
      
    15 Street, Morris, Illinois, on the 15th day of
      
    16 October, A.D., 2001, scheduled to commence at
      
    17 9:00 o'clock a.m., commencing at 9:10 a.m.
       
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    L.A. REPORTING (312) 419-9292
      
     
      
      
    2
      
      
      
    1 A P P E A R A N C E S:
      
    2
    ILLINOIS POLLUTION CONTROL BOARD
    3 100 West Randolph Street
    Suite 11-500
    4 Chicago, Illinois 60601
    BY: MR. BRADLEY P. HALLORAN, Hearing Officer
    5
      
    6 LaROSE & BOSCO, LTD.,
    734 North Wells Street
    7 Chicago, Illinois 60610
    (312) 642-4414
    8 BY: MR. MARK A. LaROSE
      
    9 Appeared on behalf of the Petitioners,
      
    10
    HINSHAW & CULBERTSON,
    11 100 Park Avenue
    P.O. Box 1389
    12 Rockford, Illinois 61105
    (815) 963-8488
    13 BY: MR. CHARLES F. HELSTEN
      
    14 - AND -
      
    15 LAW OFFICES OF SCOTT M. BELT & ASSOCIATES, P.C.,
    105 1/2 West Washington Street
    16 Morris, Illinois 60450
    (815) 941-4675
    17 BY: MR. SCOTT M. BELT
      
    18 Appeared on behalf of the City of Morris,
      
    19
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
    20 1021 North Grand Avenue East
    Springfield, Illinois 62794
    21 (217) 782-5544
    BY: MR. JOHN J. KIM
    22
    Appeared on behalf of the Respondent.
    23
    ALSO PRESENT:
    24
    Mr. R. Michael McDermott, P.E.

      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    3
      
      
      
    1 I N D E X
      
    2
      
    3 PAGES
    THE WITNESSES:
    4
    PAUL PURSEGLOVE
    5
    Cross-Examination by Mr. LaRose........... 17-47
    6 Redirect Examination by Mr. Kim........... 47-57
    Cross-Examination by Mr. Helsten.......... 58-59
    7 Recross-Examination by Mr. LaRose......... 59-63
      
    8
    MARK RETZLAFF
    9
    Cross-Examination by Mr. LaRose........... 64-114
    10 Cross-Examination by Mr. Helsten......... 114-116
    Redirect Examination by Mr.Kim........... 116-119
    11 Recross-Examination by Mr. LaRose........ 119-122
      
    12
    JOYCE MUNIE
    13
    Cross-Examination by Mr. LaRose.......... 124-231
    14 Cross-Examination by Mr. Helsten......... 238-240
    Redirect Examination by Mr. Kim.......... 247-262
    15 Recross-Examination by Mr. LaRose........ 262-265
      
    16
    CHRISTINE ROQUE
    17
    Cross-Examination by Mr. LaRose.......... 267-301
    18 Redirect Examination by Mr. Kim.......... 301-309
    Recross-Examination by Mr. LaRose........ 309-314
    19
      
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    23
      

    24
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    4
       
      
      
    1 HEARING OFFICER HALLORAN: Good morning.
      
    2 My name is Bradley Halloran. I'm a hearing
      
    3 officer with the Illinois Pollution Control
      
    4 Board, and I'm also assigned to this matter.
      
    5 The matter is PCB 01-170, Community Landfill
      
    6 Company and the City of Morris versus the
      
    7 Illinois Environmental Protection Agency.
      
    8 Today is Monday, October 15th. It's
      
    9 approximately 9:10 a.m. The hearing is being
      
    10 held pursuant to Section 105.214 of the Board's
      
    11 procedural rules regarding permit appeals and in
      
    12 accordance with Section 101, Subpart F.
      
    13 The hearing was scheduled pursuant
      
    14 to and in accordance with the Illinois
      
    15 Environmental Protection Act and the Board's
      
    16 Procedural rules and provisions. I want to note
      
    17 that I will not be deciding the case. It's the
      
    18 Board that will be the ultimate decision-maker.
      
    19 They will review the transcript of this
      
    20 proceeding and the remainder of the record and
      
    21 render a decision in this matter.
      
    22 My job is to ensure an orderly
      

    23 hearing and present a clear and complete record
      
    24 so that the Board will have all the necessary
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    5
      
      
      
    1 information to make their decision.
      
    2 I do want to note -- are there
      
    3 members of the public here?
      
    4 AUDIENCE MEMBER: (Raising hand.)
      
    5 HEARING OFFICER HALLORAN: Sir, do you
      
    6 intend to give testimony?
      
    7 AUDIENCE MEMBER: No.
      
    8 HEARING OFFICER HALLORAN: If there were
      
    9 members of the public here intending to give
      
    10 testimony, they may do so under oath subject to
      
    11 cross-examination. Also, they are allowed to
      
    12 receive public comment at the end of the
      
    13 hearing, and I'll set the briefing schedule
      
    14 then.
      
    15 I guess with that said, Mr. LaRose,
       
    16 would you like to introduce yourself?
      
    17 MR. LaROSE: Yes, Mr. Halloran. Thank
      
    18 you very much. My name is Mark LaRose. I
      
    19 represent the petitioner, Community Landfill
      
    20 Company. With me here today as a representative
      
    21 of the company is Mr. Michael McDermott,
      

    22 environmental engineer, and also two very fine
      
    23 lawyers on behalf of the City of Morris, who
      
    24 I'll let introduce themselves.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    6
      
      
      
    1 HEARING OFFICER HALLORAN: Thank you.
      
    2 Mr. Kim.
      
    3 MR. KIM: Yes. My name is John Kim. I'm
      
    4 assistant counsel and special assistant attorney
      
    5 general representing the respondent, the
      
    6 Illinois Environmental Protection Agency.
      
    7 HEARING OFFICER HALLORAN: Thank you. We
      
    8 do have some preliminary motions to take care
      
    9 of. On October 10th, the petitioner filed a
       
    10 motion for hearing on the issues of fact. The
      
    11 respondent filed a motion -- I believe it was a
      
    12 motion to suppress, and on October 11th, the
      
    13 respondent filed a response to the respondent's
      
    14 motion to suppress.
      
    15 As agreed off the record, I will be
      
    16 reserving my ruling until and if offers of proof
      
    17 come forward.
      
    18 Mr. LaRose, would you like to make
      
    19 an opening statement, please?
      
    20 MR. LaROSE: Yes, sir. Before I do, I
      

    21 just was remiss in not letting these gentlemen
      
    22 introduce themselves.
      
    23 HEARING OFFICER HALLORAN: I'm sorry.
      
    24 MR. LaROSE: That's all right.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    7
      
      
      
    1 HEARING OFFICER HALLORAN: Mr. Helsten.
      
    2 MR. HELSTEN: Mr. Halloran, Chuck Helsten
      
    3 on behalf of the City of Morris. I believe my
       
    4 appearance is on file. One housekeeping matter,
      
    5 we would like to, if you please, enter the
      
    6 additional appearance of Mr. Scott Belt. He's
      
    7 city attorney for the City of Morris.
      
    8 HEARING OFFICER HALLORAN: That is done.
      
    9 MR. BELT: Good morning, your Honor.
      
    10 Scott Belt on behalf of the City. If I may just
      
    11 ask leave to file my appearance on behalf of the
      
    12 City of MOrris. I would also note to the Court
      
    13 that Mr. Helsten will be the spokesperson, if
      
    14 you will, on behalf of the City. So he'll be
      
    15 responsible for making opening remarks and
      
    16 cross-examination, et cetera.
      
    17 HEARING OFFICER HALLORAN: Thank you,
      
    18 sir. So noted.
      
    19 MR. LaROSE: Thank you, Mr. Halloran.
      

    20 I'm going to step up here where I have a
      
    21 microphone.
      
    22 HEARING OFFICER HALLORAN: Terrific.
      
    23 Thank you very much, sir.
      
    24 MR. LaROSE: You're welcome. Good
      
      
       
    L.A. REPORTING (312) 419-9292
      
     
      
      
    8
      
      
      
    1 morning. My name, again, Mark LaRose. I
      
    2 represent the petitioner, Community Landfill
      
    3 Company, in this matter. I'd like to just spend
      
    4 a minute or two to let you know what this
      
    5 hearing is about.
      
    6 This is what we call a permit appeal
      
    7 hearing. It involves a permit application that
      
    8 was filed in November of -- November of 2000.
      
    9 It was denied by the Agency on the 11th of May
      
    10 2001. It relates to a series of permits that
      
    11 were issued to the landfill back in August of
      
    12 2000, on August the 4th, 2000, almost four years
      
    13 to the day after the original application was
      
    14 filed.
      
    15 The Agency issued to the city of
      
    16 Morris as the owner and Community Landfill as
      
    17 the operator a permit to operate parcel A and to
      
    18 close parcel B in accordance with the new and
      

    19 much more stringent landfill regulations.
       
    20 Pursuant to that permit, Community
      
    21 Landfill was required to protect the environment
      
    22 with such things as leachate control devices,
      
    23 leachate storage devices, increased groundwater
      
    24 monitoring, gas collection, and monitoring
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    9
      
      
      
    1 increased volumes of the final cover, direct
      
    2 sewer connections to the Morris POTW.
      
    3 It also contemplated and approved a
      
    4 very important concept. Since parcel A of the
      
    5 landfill was a historical waste disposal area,
      
    6 Community Landfill, as part of the August
      
    7 permits, was required to build a separation
      
    8 layer consisting of three feet of compacted clay
      
    9 over the old waste to put new waste on top of
      
    10 the separation layer and to install various
      
    11 leachate control devices.
      
    12 It is that portion of the permit
      
    13 that is at issue in this case. The large
       
    14 permit, the permits that were issued in August
      
    15 of 2000, require that each time a pollution
      
    16 control device or a new area of the landfill is
      
    17 constructed for Community Landfill's engineers
      

    18 to submit to the Agency an acceptance report, a
      
    19 report proving that we've built the particular
      
    20 component in the right way in accordance with
      
    21 the permit, in accordance with the plans, in
      
    22 accordance with the specifications.
      
    23 We built the separation layer for
      
    24 the new 1.5 acre cell of the landfill. It was
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    10
      
      
      
    1 constructed over the old waste. We sought both
      
    2 approval of the construction of that separation
      
    3 layer and approval to deposit waste on that.
      
    4 Everyone that will testify at this hearing
      
    5 admits that the cell was properly built and that
      
    6 it will be protective of the environment.
       
    7 The permit, however, was denied on
      
    8 May, 11th, 2001, for two reasons totally
      
    9 unrelated to the protection of the environment
      
    10 or the construction of the separation layer
      
    11 itself. It was denied because Robert Pruim,
      
    12 president of Community Landfill, was convicted
      
    13 of a felony in 1993. It was also denied because
      
    14 the company that issued the financial assurance
      
    15 bonds in the amount of approximately $17 million
      
    16 had been delisted from the U.S. Treasury's list
      

    17 of approved insurers.
      
    18 We believe the evidence in this case
      
    19 will show that those two reasons for denial were
      
    20 just an excuse for the Agency to close down the
      
    21 site, something they've been trying to do,
      
    22 unsuccessfully, for years.
      
    23 Let's talk for a second about the
      
    24 conviction. The evidence in this case will show
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    11
       
      
      
    1 that it had absolutely nothing to do with
      
    2 Community Landfill. It had nothing to do with
      
    3 Community Landfill Company. It had nothing to
      
    4 do with the environment. It had nothing to do
      
    5 with waste disposal or waste management in the
      
    6 State of Illinois.
      
    7 The evidence will show that the
      
    8 operator of the site on a day-to-day basis is a
      
    9 gentleman named James Pelnarsh and that he is
      
    10 the person that the City and the government and
      
    11 the Pollution Control Board and that everyone
      
    12 else looked to to be responsible for the
      
    13 operation of the site.
      
    14 The evidence will show that the
      
    15 Agency didn't follow its own procedures with
      

    16 respect to the implementation of Section 39(i)
      
    17 of the Environmental Protection Act, that
      
    18 section that requires it to conduct an
      
    19 evaluation of the permit history and felony
      
    20 conviction history of a prospective
      
    21 owner/operator.
       
    22 The evidence will show that the
      
    23 Agency treated CLC different than it treated
      
    24 others with respect to its 39(i) investigation
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    12
      
      
      
    1 and that it treated CLC different with respect
      
    2 to 39(i) from one permit application to the
      
    3 next.
      
    4 The evidence will also show and we
      
    5 will argue to the Board that the Agency should
      
    6 be barred from raising this issue because we
      
    7 will prove that at least seven high-ranking
      
    8 employees from the Agency's legal division,
      
    9 permitting division, field operation section,
      
    10 all of which have responsibility over monitoring
      
    11 the activities of CLC, knew of this conviction
      
    12 from at least 1995 and did absolutely nothing.
      
    13 They allowed us to spend hundreds of
      
    14 thousands of dollars in site improvement and
      

    15 would incur over $17 million financial liability
       
    16 and then they pull the rug out from under us.
      
    17 With respect to the financial assurance, we will
      
    18 show through the Agency's own past expert, a
      
    19 fellow named John Taylor, who worked for the
      
    20 Agency for over 15 years, has been used by the
      
    21 Agency as a financial assurance expert, we will
      
    22 show through his testimony that the final
      
    23 assurance in place pursuant to the Frontier
      
    24 bonds, indeed, did comply with the regulations.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    13
      
      
      
    1 We will also show that the Agency
      
    2 issued the August 4th, 2000, permits with the
      
    3 exact same financial assurance in place even
      
    4 though they knew at that time that Frontier had
      
    5 already been delisted from the Department of
      
    6 Treasury.
      
    7 In short, the evidence will show
      
    8 that this action by the Agency was nothing more
      
    9 than using permits as enforcement, which they at
       
    10 least admit on the face is illegal. We think
      
    11 that once all the evidence is in, we hope that
      
    12 the Board would agree with us that this was
      
    13 nothing more than an illegal attempt and a
      

    14 pretense to close the site down. Thank you.
      
    15 HEARING OFFICER HALLORAN: Thank you, Mr.
      
    16 LaRose. Mr. Kim.
      
    17 MR. KIM: My name is John Kim. I'm an
      
    18 attorney with the Illinois EPA. I will be
      
    19 representing the Agency in this permit appeal.
      
    20 As Mr. LaRose stated, this case has been brought
      
    21 by Community Landfill Company and the City of
      
    22 Morris challenging a permit decision issued by
      
    23 the Illinois Environmental Protection Agency.
      
    24 This appeal is very focused in
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    14
      
      
      
    1 nature and very specific in nature. It turns
      
    2 simply on two issues; one, whether or not
      
    3 Section 39(i) was appropriately applied; and,
      
    4 two, whether or not the financial assurance that
      
    5 was provided by Community Landfill and the City
      
    6 of Morris met all applicable requirements.
      
    7 The burden, as the Pollution Control
      
    8 Board knows, is on the petitioners in this case
      
    9 to demonstrate that the issuance of this permit
      
    10 would not have caused a violation of the Act as
      
    11 to the financial assurance or that the usage of
      
    12 39(i) was improper in this case.
      

    13 We believe that the facts and, more
      
    14 specifically, the law will bear out that, in
      
    15 fact, the Illinois Environmental Protection
      
    16 Agency's decision was correct. This is a case
      
    17 where certainly there will be some discussion of
      
    18 different facts, and certainly there will be an
      
    19 attempt to portray certain extraneous facts as
      
    20 being much more than they are when I think in
      
    21 the end the Board will note and will base its
      
    22 decision on more specifically questions of law
      
    23 as opposed to questions of fact, and I think in
      
    24 this case the questions of law really will bear
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    15
      
      
      
    1 out what decision should be reached, and we
      
    2 think that if the Board does take a close look
      
    3 at the law, they will come to the conclusion
      
    4 that our decision was correct.
      
    5 This is not a matter of the Illinois
      
    6 Environmental Protection Agency attempting to
      
    7 bypass enforcements, you know, the bringing of a
      
    8 civil action against the petitioners by use of a
      
    9 permit decision. In fact, there is a pending
      
    10 enforcement matter that's been before the
      
    11 Illinois Pollution Control Board for some years
      

    12 now.
      
    13 That matter has nothing to do with
      
    14 this case. Enforcement matters have nothing to
      
    15 do with this case. This case is nothing more or
      
    16 less than a question of whether or not the
       
    17 permit application and the permit applicant
      
    18 properly presented a package to the Illinois
      
    19 Environmental Protection Agency that would allow
      
    20 us to issue the permits out.
      
    21 The facts and the law will
      
    22 demonstrate that they did not, and we hope and
      
    23 anticipate that the Board will find as such and
      
    24 will affirm to the Illinois Environmental
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    16
      
      
      
    1 Protection Agency's decision in this matter.
      
    2 As a side note, I would like to,
      
    3 again, remind the hearing officer that today we
      
    4 will file a motion to supplement the
      
    5 administrative record. I have provided copies
      
    6 of that to the hearing officer and to opposing
      
    7 counsel. We are also filing via U.S. mail
      
    8 delivery originals and the appropriate number of
      
    9 copies to the Board today.
      
    10 The contents of the motion to
       

    11 supplement the record consists of a copy of an
      
    12 order issued by the Board, the final order, and
      
    13 a rulemaking. It consists of -- it also
      
    14 includes a, quote, unquote, Wells letter that
      
    15 was issued by the Illinois Environmental
      
    16 Protection Agency to Community Landfill and to
      
    17 the City of Morris along with certain certified
      
    18 mail receipts related to that letter. Thank
      
    19 you.
      
    20 HEARING OFFICER HALLORAN: Thank you, Mr. Kim.
      
    21 Mr. LaRose, call your first witness.
      
    22 MR. LaROSE: Yes, sir. We call as our
      
    23 first witness Mr. Paul Purseglove, please.
      
    24 HEARING OFFICER HALLORAN: Raise your
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    17
      
      
      
    1 right hand and the court reporter will swear you
      
    2 in, sir.
      
    3 (Witness sworn.)
      
    4 WHEREUPON:
      
    5 P A U L P U R S E G L O V E,
      
    6 called as a witness herein, having been first
      
    7 duly sworn, deposeth and saith as follows:
      
    8 C R O S S - E X A M I N A T I O N
      
    9 by Mr. LaRose
      

    10 Q. Good morning.
      
    11 A. Good morning.
      
    12 Q. State your name for the record, please.
      
    13 A. My name is Paul Purseglove.
      
    14 Q. You've worked for the Agency for some 21
      
    15 years; isn't that right, sir?
      
    16 A. That's correct.
      
    17 Q. You were previously the assistant manager
      
    18 of the field operation section for several
      
    19 years, correct?
      
    20 A. That is correct.
      
    21 Q. Then for a five or six-year period in the
      
    22 '90s, you were the manager of the Used Tire
      
    23 Program, right?
      
    24 A. That's correct.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    18
       
      
      
    1 Q. In 1988 or 1989, you became the statewide
      
    2 manager of the field operations section, right?
      
    3 A. You said '89?
      
    4 Q. I'm sorry. '98 or '99?
      
    5 A. That's correct.
      
    6 Q. We were unable at your deposition to pin
      
    7 those dates down.
      
    8 Did you look further to --
      

    9 A. No, I didn't.
      
    10 Q. So it's somewhere between '98
      
    11 or '99 that you became the head of the whole
      
    12 statewide FOS?
      
    13 A. For the Bureau of Land, I became the
      
    14 section manager of field operations.
      
    15 Q. Okay. What regions do you oversee?
      
    16 A. State -- I have statewide
      
    17 responsibilities, all seven bureau of land
      
    18 regional offices.
      
    19 Q. And what are the seven bureau of land
      
    20 regional offices?
      
    21 A. There's an office in Rockford, Des
      
    22 Plaines, Champaign, Peoria, Springfield,
      
    23 Collinsville, and Marion.
       
    24 Q. And does each of those regions have a
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    19
      
      
      
    1 regional manager?
      
    2 A. Yes. There is a regional manager in each
      
    3 office responsible for the day-to-day activity.
      
    4 Q. Who is the regional manager in the Des
      
    5 Plaines office?
      
    6 A. Cliff Gould.
      
    7 Q. And is that the office that would be
      

    8 responsible for Morris Community Landfill?
      
    9 A. It is.
      
    10 Q. What does FOS do?
      
    11 A. The field operations section is often
      
    12 referred to as the eyes and the ears of the
      
    13 Agency. One of the responsibilities is to
      
    14 conduct inspections at solid waste management
      
    15 facilities around the state.
      
    16 Q. Okay. So you conduct inspections.
      
    17 Do you also sometimes conduct
      
    18 investigations?
       
    19 A. Yes.
      
    20 Q. Okay. You conduct also what's called
      
    21 preoperational inspections; isn't that correct?
      
    22 A. We do.
      
    23 Q. Do you know what that is?
      
    24 A. Yes, I do.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    20
      
      
      
    1 Q. Could you explain that to the Board,
      
    2 please?
      
    3 A. Well, when a permit application is made,
      
    4 many times the permit section will ask one of
      
    5 the field inspectors to visit a site and confirm
      
    6 that construction activities have been occurring
      

    7 according to the permit.
      
    8 Q. Okay. And then they report back to the
      
    9 permit section, correct?
      
    10 A. They would.
      
    11 Q. You also -- the field operation section
      
    12 has some involvement in the enforcement area,
      
    13 right?
      
    14 A. We do.
       
    15 Q. Okay. You are the ones that are the eyes
      
    16 and ears that find alleged violations, correct?
      
    17 A. That's correct.
      
    18 Q. You would also, at least on the first
      
    19 level, try and resolve those violations with the
      
    20 permittee that's allegedly violating the
      
    21 regulations, correct?
      
    22 A. That is correct.
      
    23 Q. If you're not able to resolve it, you
      
    24 bring it to legal so that they can institute
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    21
      
      
      
    1 formal enforcement proceedings, right?
      
    2 A. That is correct.
      
    3 Q. And if formal enforcement proceedings are
      
    4 instituted, you would often be the witnesses for
      
    5 the government, if you will, to prove the
      

    6 charges?
      
    7 A. That's correct.
      
    8 Q. Okay. Are you familiar with Section
      
    9 39(i) of the Act?
       
    10 A. Somewhat.
      
    11 Q. Sir, yes or no, isn't it your duty and
      
    12 responsibility to be familiar with Section 39(i)
      
    13 of the Act?
      
    14 Yes or no, sir?
      
    15 A. Yes.
      
    16 Q. And is it not also the duty and
      
    17 responsibility of every FOS personnel to be
      
    18 aware of the provisions of Section 39(i) of the
      
    19 Act, yes or no?
      
    20 MR. KIM: I'm going to object. I think
      
    21 the witness needs an opportunity to try and
      
    22 answer the question. It may not necessarily be
      
    23 a yes or no answer.
      
    24 MR. LaROSE: Mr. Halloran, it's
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    22
      
      
      
    1 cross-examination. I asked him a yes or no
      
    2 question. I'm entitled to a yes or no answer.
      
    3 HEARING OFFICER HALLORAN: I agree. It
      
    4 is -- the witness is an adverse witness, sir.
      

    5 BY MR. LaROSE:
      
    6 Q. Sir, do you need me to ask the question,
      
    7 again?
      
    8 A. Please.
      
    9 Q. Okay. Isn't it the duty and
      
    10 responsibility of all FOS personnel to be aware
      
    11 of Section 39(i) and to understand what it
      
    12 means?
      
    13 A. Yes, it is.
      
    14 Q. Okay. Sir, in the event that an FOS
      
    15 personnel believes that an owner or operator is
      
    16 in violation of Section 39(i), isn't it also his
      
    17 or her duty to bring that to the attention of
      
    18 management and legal, yes or no?
      
    19 MR. KIM: Objection. There is no
      
    20 violation of 39(i) that's imposed upon an
      
    21 outside party. It is not a prohibitory
      
    22 provision. It's impossible to have a violation
      
    23 of Section 39(i) as a matter of law. That's
      
    24 just the truth. There's nothing prohibitory in
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    23
       
      
      
    1 Section 39(i).
      
    2 MR. LaROSE: Mr. Halloran, I'm setting
      
    3 the table. He did answer this question yes or
      

    4 no at his deposition exactly that same way with
      
    5 that exact same characterization. He should
      
    6 either be able to answer it now or I should be
      
    7 able to impeach him. So I'd like to have a yes
      
    8 or no answer for that question.
      
    9 HEARING OFFICER HALLORAN: Objection
      
    10 overruled. The witness can answer.
      
    11 BY MR. LaROSE:
      
    12 Q. Do you need me to ask the question again?
      
    13 A. Please.
      
    14 Q. Sir, in the event that an FOS employee
      
    15 believes that an owner or operator is in
      
    16 violation of Section 39(i) of the Act, is it his
      
    17 or her duty to bring that to the attention of
      
    18 management or legal, yes or no?
      
    19 A. Yes.
      
    20 Q. 39(i) evaluations or investigations are
      
    21 the responsibility of permits or FOS, aren't
      
    22 they?
       
    23 A. They could be the responsibility of any
      
    24 Agency employee.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    24
      
      
      
    1 Q. Okay. Including FOS?
      
    2 A. Yes.
      

    3 Q. Okay. FOS should bring -- an FOS
      
    4 employee should bring information about a
      
    5 criminal conviction to legal or management no
      
    6 matter what source that information came from,
      
    7 correct?
      
    8 A. That would be very -- that would be very
      
    9 much the way I would like for it to work. If
      
    10 one of my employees knew about a past criminal
      
    11 conviction that they would be familiar enough
      
    12 with the Environmental Protection Act and
      
    13 Section 39(i) and raise that issue.
      
    14 Q. To legal or management, right?
      
    15 A. Correct.
      
    16 Q. And that doesn't matter whether it comes
      
    17 from a newspaper reporter, right?
       
    18 A. Correct.
      
    19 Q. Or sworn testimony, right?
      
    20 A. Correct.
      
    21 Q. Policeman?
      
    22 A. Yes.
      
    23 Q. Rumor, sir?
      
    24 A. By any means.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    25
      
      
      
    1 Q. Any source.
      

    2 If in 1995 anyone from FOS had
      
    3 information that the owner or operator of
      
    4 Community Landfill had been indicted for a
      
    5 felony, should they have brought that to the
      
    6 attention of legal or management, yes or no?
      
    7 A. Yes.
      
    8 Q. If Warren Weritz had this information as
      
    9 early as 1993, should he have brought it to the
      
    10 attention of legal or management, yes or no?
      
    11 A. Yes.
      
    12 Q. What about a manager of the section,
      
    13 Cliff Gould, if he knew about this conviction as
       
    14 long ago as 1993, should he have brought it to
      
    15 the attention of legal or management, yes or no?
      
    16 A. If any employee would have known about a
      
    17 conviction, he should have brought that to
      
    18 management's attention.
      
    19 Q. Including Cliff Gould, the manager of the
      
    20 section, correct?
      
    21 A. Yes.
      
    22 Q. Mark Retzlaff, he should have brought it
      
    23 to their attention, too, if he knew?
      
    24 A. If he had that knowledge.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    26
      
      
      

    1 Q. You have been directly involved with the
      
    2 enforcement proceedings against CLC, have you
      
    3 not, sir?
      
    4 A. I would say it would be an overstatement
      
    5 to say that I've been directly involved.
      
    6 Q. Let's explore that for a second.
      
    7 You believed that we were operating
      
    8 without a permit, did you not?
       
    9 A. I did.
      
    10 Q. And you gave the order for FOS personnel
      
    11 to go to my client's facility, come onto our
      
    12 property, and log the license plates of my
      
    13 client's customers so that you could have a
      
    14 record of our illegal operation, correct?
      
    15 A. I asked my staff to observe the comings
      
    16 and goings at your client's facility.
      
    17 Q. Okay. Did you or did you not ask them to
      
    18 log the license plates of my client's customers?
      
    19 A. I did.
      
    20 Q. And you did that because you believed we
      
    21 were operating illegally?
      
    22 MR. KIM: Objection. I don't understand
      
    23 the relevance of this question -- of any of
      
    24 these questions having to do -- as far as this
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    27
      

      
      
    1 permit appeal goes.
      
    2 HEARING OFFICER HALLORAN: Mr. LaRose.
      
    3 MR. KIM: I don't know when those actions
      
    4 took place, in what context this was, or, again,
      
    5 how this has to do with this.
      
    6 MR. LaROSE: Sir, this gentleman was
      
    7 directly -- and we'll get to that in a minute.
      
    8 He was directly involved in the 39(i)
      
    9 investigation in this case. His involvement
      
    10 also in the enforcement proceedings go to show
      
    11 his bias and prejudice against my client with
      
    12 respect to his involvement with the 39(i)
      
    13 investigation. That's the relevance.
      
    14 HEARING OFFICER HALLORAN: Are you going
      
    15 to satisfy Mr. Kim's concern about the context
      
    16 and when and where this allegedly took place?
      
    17 MR. LaROSE: Sure.
      
    18 BY MR. LaROSE:
      
    19 Q. Sir, do you remember giving that
      
    20 particular order to log the license plates?
      
    21 A. I do.
      
    22 Q. And this was after you became the manager
      
    23 of the statewide section?
      
    24 A. It was.
      
      
       
    L.A. REPORTING (312) 419-9292
      
     
      
      

    28
      
      
      
    1 Q. And it was after -- right after September
      
    2 1999 when the big SIGMOD permit was denied,
      
    3 correct?
      
    4 A. That's correct.
      
    5 Q. Are you aware that the Board ruled
      
    6 against the Agency on the issue of whether we
      
    7 were operating without a permit or not?
      
    8 A. Only since you've told me.
      
    9 Q. Okay. So you never read the Board's
      
    10 April 5th order in the enforcement case that
      
    11 ruled in our favor?
      
    12 A. I did not.
      
    13 Q. And you haven't since I told you, have
      
    14 you?
      
    15 A. No.
      
    16 Q. Did anyone tell Mark Retzlaff that you
      
    17 lost that issue, that we weren't plating without
      
    18 a permit?
      
    19 A. I'm not aware of it.
      
    20 Q. Do you know that he's still writing in
      
    21 his inspection reports that we're operating
      
    22 without a permit and should be closed down?
      
    23 A. I haven't read any of his inspection
      
    24 reports recently.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     

      
      
    29
      
      
      
    1 Q. In the 20 or so years that my clients
      
    2 operated the site, are you aware of a single
      
    3 violation that was ever adjudicated against CLC
      
    4 by a Court or the Board?
      
    5 A. I am not.
      
    6 Q. Do you think CLC should be closed down?
      
    7 A. I think that CLC should operate in
      
    8 compliance with the state law and Board
      
    9 regulations.
      
    10 Q. Okay. And do you think that they're not
      
    11 doing that?
      
    12 A. Yes, I do.
      
    13 Q. Okay. Do you think that they're not
      
    14 doing that even though no Board or Court has
      
    15 adjudicated any violations against them?
      
    16 A. There are concerns that we have over
      
    17 height and there have been concerns raised over
      
    18 the status of their financial assurance.
      
    19 Q. Okay. Do you believe in the legal
      
    20 principle innocent until proven guilty?
      
    21 A. I do.
      
    22 Q. We haven't been proven guilty of
      
    23 anything, have we, sir?
      
    24 A. No.
      
      
      
    L.A. REPORTING (312) 419-9292

      
     
      
      
    30
      
      
      
    1 Q. The noncompliance issues, however, or
      
    2 alleged noncompliance issues have been on your
      
    3 radar screen with respect to Community Landfill,
      
    4 right?
      
    5 A. They have been.
      
    6 Q. Okay. They've also been on the radar
      
    7 screen, to your knowledge, of Joyce Munie, the
      
    8 head of the permit section, have they not, sir?
      
    9 A. Yes.
      
    10 Q. And the radar screen of Blake Harris?
      
    11 A. I don't know what -- I don't know about
      
    12 Blake.
      
    13 Q. Being on the radar screen to you means
      
    14 that they have attention focused on them, right?
      
    15 A. They do.
      
    16 Q. Prior to the spring of 2000, you were
      
    17 aware of the pending enforcement case against
      
    18 CLC, correct?
      
    19 A. Yes.
      
    20 Q. And prior to the spring of 2000, you were
      
    21 aware of recent allegations and notices of
      
    22 violation with respect to the Frontier bonding,
      
    23 correct?
      
    24 A. I don't remember.
      
      

      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    31
      
      
      
    1 Q. What about the notice of intent to file
      
    2 legal action, were you aware of that prior to
      
    3 the spring of 2001?
      
    4 A. Not specifically.
      
    5 Q. Sir, do you remember your deposition in
      
    6 this case?
       
    7 A. Most of it.
      
    8 Q. Okay. Do you remember that you gave your
      
    9 deposition a couple weeks ago?
      
    10 A. I do.
      
    11 Q. You were under oath at that time?
      
    12 A. Yes.
      
    13 Q. And you've reviewed that deposition?
      
    14 A. I have.
      
    15 Q. And you made one little clerical change
      
    16 and besides that everything else in there was
      
    17 correct?
      
    18 A. It seemed to be fine.
      
    19 Q. Sir --
      
    20 MR. LaROSE: Mr. Kim, page 50.
      
    21 BY MR. LaROSE:
      
    22 Q. Do you remember at your deposition being
      
    23 asked these questions and giving these answers?
      
    24 Question, were you aware prior to

      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    32
      
      
      
    1 the spring of this year that there were recent
      
    2 allegations that resulted in notices of
       
    3 violation regarding the financial assurance,
      
    4 specifically that Frontier Insurance Company was
      
    5 the bonding agent for Community Landfill?
      
    6 Answer, yes.
      
    7 Question, and it even went a little
      
    8 farther than that. The Agency issued a notice
      
    9 of intent to initiate legal action after the
      
    10 violation notice. Were you aware of that?
      
    11 Answer, yes. Question, and this all happened
      
    12 before your meeting with Joyce and Nechvatal,
      
    13 and Christine in which Joyce announced that a
      
    14 reporter had called her about the conviction of
      
    15 Bob Pruim? Answer, yes.
      
    16 Sir, do you remember being asked
      
    17 those questions and giving those answers under
      
    18 oath at your deposition?
      
    19 A. I do.
      
    20 Q. Let's talk a little bit about the Section
      
    21 39(i) procedures.
      
    22 Were you consulted in the 39(i)
      
    23 investigation or evaluation in this case?

      
    24 A. In the spring of this year --
       
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    33
      
      
      
    1 Q. Sir, it's really just a yes or no
      
    2 question.
      
    3 Were you consulted --
      
    4 A. I can't answer your question yes or no.
      
    5 HEARING OFFICER HALLORAN: He may
      
    6 explain, if he can.
      
    7 BY THE WITNESS:
      
    8 A. In the spring of this year, Joyce Munie
      
    9 asked me to sit in on a meeting with herself and
      
    10 Mike Nechvatal and John Kim --
      
    11 BY MR. LaROSE:
      
    12 Q. Okay. So --
      
    13 A. -- and talk about --
      
    14 MR. LaROSE: Objection. This is not
      
    15 responsive. He can talk about this on redirect
      
    16 examination. It's not responsive. I asked that
      
    17 his comments be stricken and that he be limited
      
    18 to answering the question.
      
    19 MR. KIM: Again, I'm going to -- this is
      
    20 exactly the objection. He was trying to answer
       
    21 the question.
      
    22 HEARING OFFICER HALLORAN: I'm going to

      
    23 let Mr. Purseglove answer your question or
      
    24 attempt to.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    34
      
      
      
    1 BY THE WITNESS:
      
    2 A. During that meeting, Joyce Munie brought
      
    3 to -- brought up the information that she had
      
    4 recently received about Mr. Pruim having a
      
    5 previous felony conviction. The discussion was
      
    6 --
      
    7 MR. LaROSE: Objection, narrative. I
      
    8 think this is just letting him tell his story.
      
    9 I asked a simple question, and I didn't ask for
      
    10 all of this information.
      
    11 HEARING OFFICER HALLORAN: Mr. LaRose,
      
    12 you may continue. Mr. Kim, you may
      
    13 rehabilitate, if necessary.
      
    14 BY MR. LaROSE:
      
    15 Q. You met with Joyce and Nechvatal and Mr.
      
    16 Kim in the spring of this year, correct?
      
    17 A. Yes.
      
    18 Q. As a result of that meeting, you
      
    19 recommended that the conviction of Mr. Pruim
      
    20 should be considered in the permit decision, yes
      
    21 or no?

      
    22 A. It was my recommendation --
      
    23 MR. LaROSE: Objection, nonresponsive. I
      
    24 ask that the answer be stricken and that the
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    35
      
      
      
    1 witness be directed to answer the question.
      
    2 HEARING OFFICER HALLORAN: Mr.
      
    3 Purseglove, please answer the question --
      
    4 BY THE WITNESS:
      
    5 A. Yes.
      
    6 HEARING OFFICER HALLORAN: -- yes or no,
      
    7 if you're able. Is that yes?
      
    8 THE WITNESS: Yes.
      
    9 HEARING OFFICER HALLORAN: Thank you.
      
    10 BY MR. LaROSE:
      
    11 Q. This was your first involvement in a
       
    12 39(i) evaluation, was it not?
      
    13 A. It was.
      
    14 Q. There is no written guidance that the
      
    15 Agency has on its implementation of 39(i) that
      
    16 you're aware of, is there?
      
    17 A. No, none that I'm aware of.
      
    18 Q. There's no regulations that you're aware
      
    19 of the implementation of Section 39(i), is
      
    20 there?

      
    21 A. None that I'm aware of.
      
    22 Q. The Agency is supposed to conduct a 39(i)
      
    23 evaluation or investigation of every RCRA or
      
    24 municipal landfill permit, are they not?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    36
      
      
      
    1 A. We do not do that.
      
    2 Q. But are they supposed to do that, sir?
      
    3 A. I don't know.
      
    4 Q. With respect to your interpretation of
      
    5 Section 39(i), isn't it that the Agency shall
      
    6 conduct an evaluation of the prospective owner
       
    7 or operator's prior experience, yes or no?
      
    8 A. That is what it says.
      
    9 Q. And that's your interpretation, is it
      
    10 not, sir?
      
    11 A. Yes.
      
    12 Q. Okay. And in your experience, that
      
    13 doesn't always happen?
      
    14 A. That's correct.
      
    15 Q. Okay. Have you read any Board decisions
      
    16 or case law regarding the Agency's
      
    17 implementation of Section 39(i) of the Act?
      
    18 A. I have not.
      
    19 Q. Should the Agency consider all of the

      
    20 facts relative to its 39(i) investigation, yes
      
    21 or no?
      
    22 A. Yes.
      
    23 Q. That would include the age of the
      
    24 violation, would it not?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    37
      
      
      
    1 A. It could.
      
    2 Q. Could or would?
      
    3 A. It would.
       
    4 Q. It would include whether Mr. Pruim --
      
    5 what Mr. Pruim's role was in the operation of
      
    6 the landfill, yes or no?
      
    7 A. All facts.
      
    8 Q. It would include whether Mr. Pruim's --
      
    9 what Mr. Prime's role was in the operation of
      
    10 the landfill, yes or no?
      
    11 A. Yes.
      
    12 Q. It would include whether he was a
      
    13 certified operator of the landfill, yes or no?
      
    14 A. Yes.
      
    15 Q. It would include whether he actually
      
    16 worked at the landfill or not, yes or no?
      
    17 A. Yes.
      
    18 Q. Whether or not the conviction had any

      
    19 connection to waste disposal of Illinois, that's
      
    20 a fact you should have considered, correct?
      
    21 A. Yes.
      
    22 Q. Are you aware of any obligation under the
      
    23 Acts or the regulations that the Primes violated
      
    24 by not bringing this conviction to the Agency's
      
      
      
    L.A. REPORTING (312) 419-9292
       
     
      
      
    38
      
      
      
    1 attention?
      
    2 A. I am not.
      
    3 Q. And no one is saying that the Primes hid
      
    4 this conviction or somehow secreted it away from
      
    5 the Agency, are they?
      
    6 A. No.
      
    7 Q. So you meet with Joyce, Nechvatal, and
      
    8 Kim, correct?
      
    9 A. Yes.
      
    10 Q. Were you involved because they were
      
    11 keeping you in the loop for some reason?
      
    12 A. Yes.
      
    13 Q. Your understanding as a result of that
      
    14 meeting was that Joyce had been called by a
      
    15 reporter stating that Robert Pruim had been
      
    16 convicted of a felony and that is all you knew
      
    17 at that point, correct?

      
    18 A. That's correct.
      
    19 Q. At that meeting, you recommended that if
      
    20 the Agency has info about a conviction, that it
      
    21 should be considered in the permit decision,
      
    22 correct?
      
    23 A. That is correct.
      
    24 Q. And the extent -- the total extent of the
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    39
      
      
      
    1 information that you had when you made that
      
    2 recommendation was, A, a reporter called about a
      
    3 prior felony conviction, and, B, Bob Pruim
      
    4 signed a permit application, right?
      
    5 A. That is correct.
      
    6 Q. You hadn't looked at any documents prior
      
    7 to your recommendation, right?
      
    8 A. That's correct.
      
    9 Q. You never looked at the criminal docket
      
    10 sheet prior to your recommendation, did you?
      
    11 A. No, I did not.
      
    12 Q. You never looked at the criminal
      
    13 complaint or the guilty plea agreement in this
      
    14 case prior to your recommendation, did you?
      
    15 A. I did not review Mr. Pruim's case.
      
    16 Q. You didn't even know what the charges

      
    17 were, did you?
      
    18 MR. KIM: He just answered he didn't
      
    19 review the case.
      
    20 HEARING OFFICER HALLORAN: Sustained.
      
    21 BY MR. LaROSE:
      
    22 Q. Did you know how long ago the conviction
      
    23 was before giving your recommendation that it
      
    24 should be considered?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    40
      
      
      
    1 A. No.
      
    2 Q. Did you know what Mr. Pruim's -- what
      
    3 role Mr. Pruim played in the day-to-day
      
    4 operation of the site?
      
    5 MR. KIM: Objection. He just answered he
      
    6 did not look at any of that information.
      
    7 MR. LaROSE: I'm not so sure he did. He
      
    8 said he didn't read anything. I asked him
      
    9 whether he knew what role he played prior to --
      
    10 prior to his recommendation.
      
    11 HEARING OFFICER HALLORAN: Mr. Purseglove
      
    12 may answer.
       
    13 BY THE WITNESS:
      
    14 A. Your question was?
      
    15 BY MR. LaROSE:

      
    16 Q. Did you know what role Mr. Pruim played
      
    17 in the day-to-day operation of the site before
      
    18 you made your recommendation?
      
    19 A. No, I did not.
      
    20 Q. Or whether he was a certified operator of
      
    21 the site?
      
    22 A. No, I did not.
      
    23 Q. Or whether he had been the one that
      
    24 submitted prior conduct certifications for the
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    41
      
      
      
    1 site?
      
    2 A. No.
      
    3 Q. Or whether he even worked there?
      
    4 A. No.
      
    5 Q. Okay. Did you do anything prior to your
      
    6 recommendation to verify whether the conviction
      
    7 had anything to do with waste management or
      
    8 waste disposal in Illinois?
      
    9 A. No, I didn't.
      
    10 Q. After that meeting, you really didn't do
      
    11 anything else with respect to Section 39(i), did
      
    12 you?
      
    13 A. That's correct.
      
    14 Q. You didn't conduct any personal

      
    15 investigation, right?
      
    16 A. None.
      
    17 Q. You weren't asked to, were you?
      
    18 A. No.
      
    19 Q. You didn't gather any information?
      
    20 MR. KIM: Objection. He just said he
      
    21 didn't do anything afterwards.
      
    22 HEARING OFFICER HALLORAN: Sustained.
      
    23 BY MR. LaROSE:
      
    24 Q. Forget about you personally.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    42
      
      
      
    1 Did FOS, to your knowledge, have any
      
    2 further involvement in the evaluation or
      
    3 investigation?
      
    4 A. None to my knowledge.
      
    5 Q. Do you have any idea what kind of
       
    6 investigation was conducted after that meeting?
      
    7 A. I do not.
      
    8 Q. Why were you there?
      
    9 A. As manager of the field operation
      
    10 section, I'm one of the management teams for the
      
    11 bureau of land.
      
    12 Q. Okay. You didn't look at any documents,
      
    13 you didn't know any facts, you didn't conduct

      
    14 any investigation.
      
    15 My question again is, what were you
      
    16 doing there?
      
    17 MR. KIM: Objection. He just answered
      
    18 the question.
      
    19 HEARING OFFICER HALLORAN: Sustained.
      
    20 BY MR. LaROSE:
      
    21 Q. Did you consider that when you went into
      
    22 that meeting that the Agency was treading new
      
    23 ground on this 39(i) issue because there was no
      
    24 policy or procedure?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    43
      
      
      
    1 A. Yes.
      
    2 Q. Okay. So we're treading on new ground on
      
    3 a regulation that is -- or not a regulation,
      
    4 statute, that is how old, sir?
      
    5 A. I don't know exactly.
      
    6 Q. Do you know whether it's more than 15
      
    7 years old?
      
    8 A. No, I don't.
      
    9 Q. After the meeting, did you read the
      
    10 complaint or the docket sheet?
      
    11 A. I don't understand that question.
      
    12 Q. After the meeting, did you read the

      
    13 criminal complaint or the docket sheet in the
      
    14 criminal case?
      
    15 A. No, I did not.
      
    16 Q. Mr. Purseglove, I'm going to show you
      
    17 what's been previously marked as Exhibit No. 1
      
    18 in this case, which is the Agency record without
      
    19 the portions of the supplement that Mr. Kim
      
    20 submitted today.
      
    21 MR. LaROSE: Mr. Halloran, do you have a
      
    22 copy of the record in front of you?
      
    23 HEARING OFFICER HALLORAN: I do, Mr.
       
    24 LaRose.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    44
      
      
      
    1 MR. LaROSE: Mr. Kim, do you?
      
    2 MR. KIM: Yes.
      
    3 BY MR. LaROSE:
      
    4 Q. Take a look at -- these pages, sir, after
      
    5 the index, are consecutively numbered. Take a
      
    6 look at page 12, please. Are you with me?
      
    7 A. I am.
      
    8 Q. Okay. Pages 12 and 13 are a May 9th,
      
    9 2001, memo from Joyce Munie to Christine Roque,
      
    10 and it is carbon copied to you, right?
      
    11 A. It is.

      
    12 Q. Do you remember getting that memo?
      
    13 A. I do.
      
    14 Q. You agreed with the ultimate decision to
      
    15 deny the permit in this case, correct?
      
    16 A. I did.
      
    17 Q. And you agreed with the ultimate decision
      
    18 to deny the permit in this case based solely on
      
    19 your attendance at that meeting and the
       
    20 information in this memo, right?
      
    21 A. And the recommendation of Joyce Munie.
      
    22 Q. Okay. Look at page 13, sir, the first
      
    23 full paragraph, the third sentence beginning
      
    24 with the word Act, could you read that sentence,
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    45
      
      
      
    1 the Act?
      
    2 A. The Act does not require the Agency to
      
    3 investigate, but rather allows the Agency to
      
    4 conduct an evaluation of the operator's prior
      
    5 experience in waste management operations.
      
    6 Q. Do you agree with that statement, yes or
      
    7 no?
      
    8 A. Yes.
      
    9 Q. Flip the page to page 14, sir. That's an
      
    10 e-mail from Joyce Munie dated 3-30-01?

      
    11 A. Yes, it is.
      
    12 Q. You're copied on that?
      
    13 A. I am.
      
    14 Q. Do you remember receiving that?
      
    15 A. No, I do not.
      
    16 Q. Flip to page 53 of the record, please.
      
    17 That appears to be an e-mail from Mark Retzlaff,
      
    18 your field inspector for the Morris Community
      
    19 Landfill, to the head of permits, Joyce Munie,
      
    20 right?
      
    21 A. Yes.
      
    22 Q. He also copied this to enforcements,
      
    23 correct?
      
    24 A. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    46
      
      
      
    1 Q. Okay. He says in the last sentence, they
      
    2 seem to get away with quite a bit of sloppy
      
    3 operations with little or no repercussion.
      
    4 Do you have a problem with that
      
    5 statement, yes or no?
      
    6 A. No.
      
    7 Q. Flip the page to page 54. The second to
      
    8 the last paragraph of page 54 reads, this site
      
    9 has been involved in extensive enforcement and

      
    10 seems to disregard the Act regulations and input
       
    11 of the Agency. It's hard to believe that a
      
    12 permit was issued at all under the past and
      
    13 current circumstances.
      
    14 Do you have a problem with that
      
    15 statement, yes or no?
      
    16 A. No.
      
    17 Q. Do you know if anyone ever told Mark
      
    18 Retzlaff in the 12 years that he's worked for
      
    19 the Agency that the Agency doesn't use permits
      
    20 to enforce?
      
    21 A. No, I'm not aware that anybody has told
      
    22 him that.
      
    23 MR. LaROSE: That's all I have.
      
    24 HEARING OFFICER HALLORAN: Thank you, Mr.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    47
      
      
      
    1 LaRose. Mr. Kim.
      
    2 MR. KIM: Thank you. Just a few
      
    3 questions. I'm sorry. You'll probably have to
      
    4 bear with me as I go through my notes.
      
    5 R E D I R E C T E X A M I N A T I O N
      
    6 by Mr. Kim
       
    7 Q. Mr. Purseglove, you were asked about the
      
    8 duties of members of the field operation section

      
    9 in terms of what they should do when confronted
      
    10 with information of any kind concerning a
      
    11 conviction of somebody that was under
      
    12 regulation.
      
    13 Do you remember those questions?
      
    14 A. I do.
      
    15 Q. And you stated, I believe, that they did
      
    16 have a duty to inform both legal and their
      
    17 management if they came upon that information;
      
    18 is that right?
      
    19 A. Yes, I did say that.
      
    20 Q. What's the basis for your statement of
      
    21 that? Why do you believe that to be true?
      
    22 A. Well, for one thing, it's optimistic for
      
    23 me to believe that all of my employees know
      
    24 what's contained in every section of the
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    48
      
      
      
    1 Environmental Protection Act, but, in general, I
      
    2 think that we should be aware of the law and
      
    3 regulations and advise upper management and take
      
    4 it up the ladder when they're aware of
      
    5 violations.
      
    6 Q. But is there any policy or any guideline
      
    7 or guidance documents that's been issued by the

      
    8 bureau of land to its inspectors that instructs
      
    9 them to do that?
      
    10 A. Not to my knowledge. I have never
      
    11 directed staff to specifically do criminal
      
    12 background checks on people who were applying
      
    13 for permits.
      
    14 Q. Okay. And for that matter, are there
      
    15 guidance documents or policies or procedures on
      
    16 every aspect of the Environmental Protection Act
      
    17 as it would relate to the field operation
      
    18 section?
      
    19 A. No, there is not.
      
    20 Q. Why is that?
      
    21 A. Because it would just be so many policies
      
    22 and procedures.
      
    23 Q. And I believe you also stated that it was
       
    24 your opinion that Community Landfill is being
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    49
      
      
      
    1 operated out of compliance with the Act and
      
    2 regulations; is that right?
      
    3 A. That is correct.
      
    4 Q. Okay. What is the basis for your
      
    5 statement there?
      
    6 A. My recollection is that through their own

      
    7 permit application, they identified that certain
      
    8 parts of their landfill had been filled above
      
    9 the permitted capacity, and subsequent to that,
      
    10 the Agency retained a civil engineer to go out
      
    11 and survey the landfill, and his report
      
    12 confirmed what their own permit application said
      
    13 in that certain areas of the landfill had been
      
    14 overfilled with -- had been overfilled.
      
    15 Q. Okay. And do you know whether or not
      
    16 that allegation has been made in terms of the
      
    17 pending enforcement case that's now before the
       
    18 Board?
      
    19 A. There is a pending enforcement case in
      
    20 front of the Board.
      
    21 Q. And have you been informed by anyone
      
    22 whether or not that particular issue has yet
      
    23 been resolved?
      
    24 A. No, I have not.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    50
      
      
      
    1 Q. Okay. You also testified about the
      
    2 different roles that the field operation section
      
    3 would have and also the question of whether or
      
    4 not enforcement through permitting was
      
    5 appropriate.

      
    6 Can you explain how enforcement
      
    7 would need to make a -- how enforcement would
      
    8 balance those two concepts in terms of, one,
      
    9 providing information to, for example, the
      
    10 permit staff if they asked for information, and,
      
    11 two, recognizing that you should not conduct
      
    12 enforcement through permitting?
       
    13 MR. LaROSE: Objection to the form of the
      
    14 question. It's compound.
      
    15 HEARING OFFICER HALLORAN: Can you
      
    16 rephrase that, Mr. Kim?
      
    17 MR. KIM: Well, if the witness can
      
    18 answer.
      
    19 HEARING OFFICER HALLORAN: Could you
      
    20 rephrase it, please?
      
    21 MR. KIM: Sure, sure.
      
    22 BY MR. KIM:
      
    23 Q. You testified that the field section
      
    24 performs different functions for different
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    51
      
      
      
    1 groups within the bureau of land; is that right?
      
    2 A. That's correct.
      
    3 Q. How is it that the field section would
      
    4 not, in your opinion, run the risk of engaging

      
    5 in enforcement through permitting or how would
      
    6 they make sure that they didn't contribute to
      
    7 that happening?
      
    8 A. Through our inspections, the field can
      
    9 convey information to the permit section. The
      
    10 decision on the permit is ultimately made by the
      
    11 permit section, ultimately the permit section
      
    12 manager, and so inspection reports or memoranda
      
    13 that is written is facts and opinions of the
      
    14 field staff.
      
    15 Q. Is it safe to say that the permit section
      
    16 does not always do what the field operation
      
    17 section would otherwise like them to do?
      
    18 MR. LaROSE: Objection, leading.
      
    19 HEARING OFFICER HALLORAN: He may answer
      
    20 if he's able.
      
    21 BY THE WITNESS:
      
    22 A. That is correct.
      
    23 BY MR. KIM:
      
    24 Q. You also testified that you were at a --
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    52
      
      
      
    1 I'm sorry. Strike that.
      
    2 You testified that there was
      
    3 attention, at least on your part, focused on

      
    4 Community Landfill Company. It was -- I believe
      
    5 the term used was on the radar screen.
      
    6 Do you remember that?
      
    7 A. I do.
      
    8 Q. What about this site would make it stand
      
    9 out as compared to any of the other, for
      
    10 example, 811 solid waste facilities in the
      
    11 state?
      
    12 A. The two main issues were the overheight
      
    13 and the financial assurance, lack of -- concern
      
    14 about the lack of adequate financial assurance.
      
    15 Q. Okay. Well, then let's go with the first
      
    16 one there. You said that your understanding is
      
    17 the overheight was the subject of an enforcement
      
    18 case that's now before the Board?
      
    19 A. Yes.
      
    20 Q. Okay. Do you know roughly, off the top
      
    21 of your head, how many 811 solid waste
      
    22 facilities there are in the state right now?
      
    23 A. About 55 or 57 currently operating.
      
    24 Q. Okay. To the best of your knowledge, do
       
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    53
      
      
      
    1 you know how many of those sights are currently
      
    2 the subject of a pending enforcement action

      
    3 before either the Board or the Circuit Court?
      
    4 A. No, I'm not aware of how many enforcement
      
    5 cases are pending. Very few.
      
    6 Q. You testified that you were present at a
      
    7 meeting with Joyce Munie, Mike Nechvatal, and
      
    8 myself, and that through the course of that
      
    9 meeting you made a recommendation.
      
    10 Do you recall that?
      
    11 A. I do.
      
    12 Q. What was the basis for the --
      
    13 specifically, what was the recommendation that
      
    14 you made at that meeting?
      
    15 A. During that meeting, Joyce presented
      
    16 information that had been submitted to her from
      
    17 a reporter that alleged -- that indicated that
      
    18 Mr. Pruim had had previous felony convictions,
       
    19 and I believe that those felony convictions were
      
    20 related to the waste management business.
      
    21 It was my recommendation that we
      
    22 should investigate that allegation made by the
      
    23 reporter, that information that was provided,
      
    24 and if it was found to be true, use that in
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    54
      
      
      
    1 considering whether Section 39(i) would apply to

      
    2 this permit decision. That was my
      
    3 recommendation.
      
    4 Q. Did you recommend at that meeting that
      
    5 the permit should be denied?
      
    6 A. No.
      
    7 Q. Okay. You also testified that you don't
      
    8 believe that the Agency conducts an evaluation
      
    9 or investigation for all sights that have
      
    10 submitted a permit application.
      
    11 Do you recall that?
      
    12 A. I do. I do recall that.
      
    13 Q. Who would conduct an evaluation of a
       
    14 permit application? Would it be the field
      
    15 section?
      
    16 A. No.
      
    17 Q. Who would do that?
      
    18 A. That would be the permit section staff.
      
    19 Q. Okay. You also testified that in your
      
    20 opinion you were -- and I may not be using the
      
    21 exact terminology, but just that you were sort
      
    22 of breaking new ground in discussing the 39(i)
      
    23 application for Community Landfill.
      
    24 Do you recall that?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    55
      
      

      
    1 A. In my tenure as section manager, the
      
    2 applicability of Section 39(i) had never before
      
    3 come to my attention. So this was new ground
      
    4 for me.
      
    5 Q. Okay. You also testified that your
      
    6 attention was directed to a statement made by
      
    7 Joyce Munie on page 13 of the administrative
      
    8 record.
       
    9 That's found in a memo that she
      
    10 prepared dated May 9th, 2001?
      
    11 A. Yes.
      
    12 Q. Is it your understanding that the
      
    13 Environmental Protection Act requires the Agency
      
    14 to conduct a background investigation of every
      
    15 prospective owner or operator that submits a
      
    16 permit application?
      
    17 When I say background check, I mean
      
    18 for criminal activity.
      
    19 A. I think it allows us to do that.
      
    20 Q. Does it require you to do that?
      
    21 A. No.
      
    22 Q. You also testified that on pages 53 and
      
    23 54 of the administrative record certain
      
    24 statements made by Mark Retzlaff in the e-mail
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    56

      
      
      
    1 on page 53 and a memo on page 54 that you had no
      
    2 problems with those statements.
      
    3 Why don't you have a problem with
       
    4 those statements?
      
    5 A. I expect my field staff to speak candidly
      
    6 with permit section people about observations
      
    7 that they make, and if these are one of my
      
    8 staff's observations, then so be it.
      
    9 Q. Do you think it's important to have that
      
    10 line of communication between the field section
      
    11 and the permit section?
      
    12 A. Absolutely.
      
    13 MR. LaROSE: Objection, leading.
      
    14 BY THE WITNESS:
      
    15 A. I do believe that it is.
      
    16 MR. KIM: That's a yes or a no question.
      
    17 HEARING OFFICER HALLORAN: Overruled.
      
    18 BY THE WITNESS:
      
    19 A. Yes.
      
    20 Q. And why do you think that's important?
      
    21 A. Because the field staff are in a position
      
    22 to observe firsthand the operations at these
      
    23 facilities, the waste management sites, and they
      
    24 need to be able to and they must convey what
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      

      
    57
      
      
      
    1 they see to the permit section engineers.
      
    2 Q. Do you expect the permit section to Act
      
    3 upon those type of statements, for example, the
      
    4 statements made by Mr. Retzlaff to Ms. Roque?
      
    5 MR. LaROSE: Objection, leading.
      
    6 MR. KIM: It's a yes or a no question.
      
    7 MR. LaROSE: That's exactly what it is.
      
    8 It's a leading question.
      
    9 MR. KIM: I can rephrase.
      
    10 HEARING OFFICER HALLORAN: Thank you.
      
    11 BY MR. KIM:
      
    12 Q. In your opinion, how should the permit
      
    13 section consider statements such as those made
      
    14 by Mr. Retzlaff?
      
    15 A. I think that they should review
      
    16 information that they have and take it alone
      
    17 with any other information that they might have
      
    18 before they make a decision.
      
    19 MR. KIM: Okay. Nothing further.
      
    20 HEARING OFFICER HALLORAN: Thank you, Mr.
       
    21 Kim. Mr. LaRose.
      
    22 MR. LaROSE: I don't know if Mr. -- just
      
    23 as a point of order, Mr. Halloran, I don't know
      
    24 if Mr. Helsten wants to ask any questions before
      
      
      
    L.A. REPORTING (312) 419-9292
      

     
      
      
    58
      
      
      
    1 I re-cross.
      
    2 MR. KIM: And actually I was not sure
      
    3 about that. After Mr. LaRose finished, I might
      
    4 have just assumed I should go ahead, but I
      
    5 didn't know if Mr. Helsten also had some
      
    6 questions on direct. I apologize. I probably
      
    7 should have --
      
    8 HEARING OFFICER HALLORAN: I agree, and I
      
    9 don't mean to slight Mr. Helsten. Mr. Helsten,
      
    10 do you have any questions for Mr. Purseglove?
      
    11 MR. HELSTEN: I only have one, your
      
    12 Honor. I didn't know what order you wanted me
      
    13 to go in based upon our limited interest in this
      
    14 deal, which is only limited to one aspect of the
       
    15 financial assurance issue.
      
    16 HEARING OFFICER HALLORAN: Since Mr. Kim
      
    17 has finished with his direct,
      
    18 Mr. Helsten, if Mr. LaRose doesn't have any
      
    19 problem with it, you can go ahead and ask your
      
    20 questions, please.
      
    21 MR. LaROSE: Absolutely not.
      
    22 C R O S S - E X A M I N A T I O N
      
    23 by Mr. Helsten
      
    24 Q. Mr. Purseglove, just out of curiosity,
      
      
      

    L.A. REPORTING (312) 419-9292
      
     
      
      
    59
      
      
      
    1 how does the Agency determine when a 39(i)
      
    2 evaluation should take place and when one
      
    3 shouldn't take place?
      
    4 A. We do not have any policy per se that
      
    5 dictates when 39(i) evaluations or background
      
    6 checks would be done.
      
    7 MR. HELSTEN: That's all I have.
      
    8 HEARING OFFICER HALLORAN: Thank you, Mr.
      
    9 Helsten. Mr. LaRose.
       
    10 R E C R O S S - E X A M I N A T I O N
      
    11 by Mr. LaRose
      
    12 Q. Sir, you said on redirect examination in
      
    13 the question to Mr. Kim that you thought it
      
    14 would be optimistic of you to believe that your
      
    15 people would know the regulations and always
      
    16 comply with them.
      
    17 You said something like that, right?
      
    18 A. I don't think that that's what I said. I
      
    19 said --
      
    20 Q. Well, what did you say about overly
      
    21 optimistic?
      
    22 A. What I thought I said was --
      
    23 Q. What was your overly optimistic --
      
    24 A. It would be overly optimistic for my
      

      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    60
      
      
      
    1 staff to know what every regulation and law in
      
    2 the Act and the Board's regulations were.
      
    3 Q. Is it overly optimistic for them or for
      
    4 you to expect them to know that if a conviction
       
    5 comes to their attention that they're supposed
      
    6 to pick up the phone and call legal or
      
    7 management?
      
    8 A. No, that's not overly optimistic.
      
    9 Q. Okay. And that's all it would have taken
      
    10 in this case, for Cliff Gould or Mark Retzlaff
      
    11 or any of the other people in the field
      
    12 operation like Warren Weritz, all they had to do
      
    13 is pick up the telephone and permits would have
      
    14 been alerted to this, correct?
      
    15 A. That's correct.
      
    16 Q. You said that you didn't have any
      
    17 problems with the statements in 53 or 54 by Mr.
      
    18 Retzlaff. Are you telling me and the Board that
      
    19 it's okay for your field operation sections to
      
    20 send e-mails to the permit section expressing
      
    21 opinion, conjecture, or derogatory comments?
      
    22 A. I think that it's appropriate to use
      
    23 e-mail to convey information from the field
      

    24 staff to the permit section.
      
      
      
    L.A. REPORTING (312) 419-9292
       
     
      
      
    61
      
      
      
    1 Q. Okay. Is it appropriate, in your
      
    2 opinion, for the field staff to convey to the
      
    3 permit section in e-mails, opinion, conjecture,
      
    4 or derogatory comments about the permittee, yes
      
    5 or no?
      
    6 MR. KIM: Before he answers, I'm going to
      
    7 object to just the last reference to a
      
    8 derogatory comment. I'm not quite sure what the
      
    9 basis is for that. I don't think there's been
      
    10 any --
      
    11 HEARING OFFICER HALLORAN: I agree. Mr.
      
    12 LaRose, could you rephrase it?
      
    13 MR. LaROSE: Sure. Let's break it down.
      
    14 BY MR. LaROSE:
      
    15 Q. Is it, in your opinion, okay for your
      
    16 field staff to send the head of landfill -- of
      
    17 the bureau of land permits an e-mail that
      
    18 expresses his opinion?
      
    19 A. I do.
      
    20 Q. His conjecture?
      
    21 A. I'm not sure what that means.
       
    22 Q. Do you know what the word supposition
      

    23 means?
      
    24 A. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    62
      
      
      
    1 Q. Okay. Is supposition --
      
    2 A. What he supposes?
      
    3 Q. Yes.
      
    4 A. Sure.
      
    5 Q. Okay. Would you consider the last line
      
    6 of this, they seem to get away with quite a bit
      
    7 of sloppy operations with little or no
      
    8 repercussion, is that an opinion or a
      
    9 supposition?
      
    10 A. I don't know what that is.
      
    11 Q. Okay. Is it a derogatory comment? It's
      
    12 certainly not complimentary of my client, is it?
      
    13 A. It's not complimentary.
      
    14 Q. Okay. So was it okay for him to make
      
    15 that not complimentary --
      
    16 A. Yes.
      
    17 Q. -- statement in an e-mail to the head of
      
    18 the permit section when she's considering the
      
    19 very permit that was denied in this case?
      
    20 A. Field --
      
    21 Q. Yes or no?
      

    22 A. Yes, it is. I think it's appropriate for
      
    23 them to relay information that they have.
      
    24 Q. Did you tell them that, your field
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    63
      
      
      
    1 operation people, that they could e-mail the
      
    2 head of permits while they're considering permit
      
    3 decisions and make their opinions and
      
    4 uncomplimentary comments about the permittee?
      
    5 A. No, I didn't.
      
    6 Q. Okay. But you would tell them that, you
      
    7 condone that?
      
    8 A. I do condone that.
      
    9 MR. LaROSE: That is all I have.
      
    10 MR. KIM: Nothing further.
      
    11 HEARING OFFICER HALLORAN: Nothing
      
    12 further. Mr. Helsten.
      
    13 MR. HELSTEN: Nothing further.
      
    14 HEARING OFFICER HALLORAN: Thank you, Mr.
      
    15 Purseglove. You can step down. We'll go off
      
    16 the record and take a few minutes break.
      
    17 (Break taken.)
      
    18 HEARING OFFICER HALLORAN: We're back on
      
    19 the record. It's approximately 10:20. We took
      
    20 about a ten minute break. Mr. LaRose will be
      

    21 calling his second witness. You may step up,
      
    22 please. Raise your right hand and the court
      
    23 reporter will swear you in.
      
    24
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    64
      
      
      
    1 (Witness sworn.)
      
    2 WHEREUPON:
      
    3 M A R K R E T Z L A F F,
      
    4 called as a witness herein, having been first
      
    5 duly sworn, deposeth and saith as follows:
      
    6 C R O S S - E X A M I N A T I O N
      
    7 by Mr. LaRose
       
    8 Q. Good morning.
      
    9 A. Morning.
      
    10 Q. Could you state your name for the record,
      
    11 please?
      
    12 A. Mark Retzlaff, R-e-t-z-l-a-f-f.
      
    13 Q. Sir, you've worked for the Agency for
      
    14 approximately 14 years?
      
    15 A. Yes.
      
    16 Q. You are what they call an environmental
      
    17 protection specialist three, correct?
      
    18 A. Yes.
      
    19 Q. And you work in the field operation
      

    20 section of the northern region of Illinois,
      
    21 which is headquartered in Des Plaines, Illinois?
      
    22 A. Yes.
      
    23 Q. And as part of your duties, you are
      
    24 currently the field operations inspector for two
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    65
      
      
      
    1 landfills, the Morris Community Landfill an its
      
    2 neighbor, the Envirotech Landfill, correct?
      
    3 A. Yes.
       
    4 Q. You conduct routine inspections of the
      
    5 Morris Community Landfill?
      
    6 A. Yes.
      
    7 Q. It is your job to report alleged
      
    8 violations --
      
    9 A. Yes.
      
    10 Q. -- correct? Sir?
      
    11 A. Yes.
      
    12 Q. You would also work as part of your
      
    13 duties with the enforcement people?
      
    14 A. Yes.
      
    15 Q. If you saw an alleged violation and you
      
    16 were unable to resolve it with the operator, it
      
    17 would be part of your job to bring that to the
      
    18 attention of legal?
      

    19 A. Yes.
      
    20 Q. You also do some work with the permit
      
    21 sections with respect to preoperational
      
    22 inspections, correct?
      
    23 A. That's correct.
      
    24 Q. As a result of a preoperational
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    66
       
      
      
    1 inspection, you would look at the operating
      
    2 units that are sought to be permitted and see if
      
    3 they comply with your knowledge of the permit
      
    4 requirements, correct?
      
    5 A. Yes.
      
    6 Q. And you would report that to permitting?
      
    7 A. Yes.
      
    8 Q. You are not an engineer, are you, sir?
      
    9 A. No.
      
    10 Q. During part of your stint with the
      
    11 Agency, you were first a field operations
      
    12 inspector, right?
      
    13 A. Yes.
      
    14 Q. And then for a period of time, several
      
    15 years in the '90s, you were assigned to criminal
      
    16 investigations with was it the Illinois
      
    17 Department of Criminal Investigations?
      

    18 A. Well, Illinois State Police.
      
    19 Q. Okay. So the EPA lent you, if you will,
      
    20 to the state police regarding the conduct of
      
    21 criminal investigations, correct?
      
    22 A. Correct, via interagency agreement.
      
    23 Q. And that was for a period of several
      
    24 years in the 1990s?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    67
      
      
      
    1 A. Yes.
      
    2 Q. And then sometime in 1989 or -- I'm
      
    3 sorry, 1998 or '99, you returned to your duties
      
    4 as merely a field inspector?
      
    5 A. Yes.
      
    6 Q. Okay. And you've been the field
      
    7 inspector for Morris Community Landfill for the
      
    8 last couple of years or so, correct?
      
    9 A. Yes.
      
    10 Q. And during that time, you've conducted
      
    11 five or six inspections of the Morris Community
      
    12 Landfill?
      
    13 A. Yes.
      
    14 Q. Okay. When you go there, who do you deal
      
    15 with?
      
    16 A. James Pelnarsh, Senior.
      

    17 Q. Okay.
      
    18 A. Do you want the spelling?
      
    19 Q. No. That's okay.
       
    20 Who do you understand James
      
    21 Pelnarsh, Senior, to be?
      
    22 A. Site operator.
      
    23 Q. When you inspect the Morris Community
      
    24 Landfill, is Mr. Pelnarsh accommodating
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    68
      
      
      
    1 regarding your inspections?
      
    2 A. Yes.
      
    3 Q. Cooperative?
      
    4 A. Yes.
      
    5 Q. Has he ever attempted in any way to limit
      
    6 the scope of your inspection?
      
    7 A. No.
      
    8 Q. He's always showed you what you wanted to
      
    9 see, told you what you wanted to know, correct?
      
    10 A. Yes.
      
    11 Q. As far as the Morris Community Landfill
      
    12 and your involvement with it, Jim Pelnarsh, the
      
    13 guy we know as JP, that's your contact, correct?
      
    14 A. Yes.
      
    15 Q. Have you ever had any contact with Robert
      

    16 Pruim?
      
    17 A. No.
      
    18 Q. Would you know Robert Pruim if you saw
      
    19 him?
      
    20 A. No.
      
    21 Q. Have you ever seen Robert Pruim at the
      
    22 Morris Community Landfill?
      
    23 A. Not that I'm aware of, no.
      
    24 Q. Do you have any idea whether Robert Pruim
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    69
      
      
      
    1 has any involvement in the day-to-day operations
      
    2 of Morris Community Landfill?
      
    3 A. No.
      
    4 Q. Based on your observation, though, it
      
    5 would be JP that has those responsibilities?
      
    6 A. Yes.
      
    7 Q. Okay. You had some involvement in the
      
    8 permit application in this case regarding your
      
    9 preoperational inspection, correct?
      
    10 A. Yes.
      
    11 Q. And you wrote a preoperational inspection
      
    12 report?
      
    13 A. Yes.
      
    14 Q. You also wrote an e-mail to Joyce Munie
      

    15 regarding your inspection of the landfill?
      
    16 A. Yes.
      
    17 Q. You also wrote a preoperational
      
    18 inspection report to Christine Roque?
      
    19 A. A report, no.
      
    20 Q. I'm sorry. A preoperational memo?
      
    21 A. Memo, yes.
      
    22 Q. Didn't you also write a preoperational
      
    23 inspection report?
      
    24 A. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    70
      
      
      
    1 Q. Okay. With respect to inspection
      
    2 reports, isn't it a requirement that the reports
      
    3 only contain factual information?
      
    4 A. Yes.
      
    5 Q. Okay. They're not supposed to contain
      
    6 any opinion, right?
      
    7 A. No.
      
    8 Q. Or conjecture, right?
       
    9 A. No.
      
    10 Q. Okay. Or derogatory comments about the
      
    11 permittee, correct?
      
    12 MR. KIM: Same objection to the use of
      
    13 the term derogatory comments.
      

    14 BY MR. LaROSE:
      
    15 Q. Sir, can you answer the question?
      
    16 HEARING OFFICER HALLORAN: Sustained.
      
    17 BY THE WITNESS:
      
    18 A. No.
      
    19 MR. KIM: Move to strike the answer.
      
    20 HEARING OFFICER HALLORAN: The answer is
      
    21 stricken. Mr. LaRose, could you please rephrase
      
    22 that? I think our concern is with the phrase
      
    23 derogatory. I think that's Mr. Kim's concern.
      
    24 MR. LaROSE: And my concern, Mr.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    71
      
      
      
    1 Halloran, is that he did answer the very same
      
    2 question in his deposition. So if he can answer
      
    3 it now, he should, and if he can't, he should be
       
    4 impeached upon it. So I'm just trying to set
      
    5 the table for the question. We used this term
      
    6 probably 30 times during his deposition and
      
    7 neither Mr. Kim nor he had any problem with it.
      
    8 MR. KIM: I was going to say, I mean,
      
    9 whether or not it was objected to in the
      
    10 deposition doesn't mean that it can't be
      
    11 objected to here.
      
    12 MR. LaROSE: Can I try and clear it up
      

    13 just a little bit?
      
    14 HEARING OFFICER HALLORAN: Go ahead, Mr.
      
    15 LaRose.
      
    16 BY MR. LaROSE:
      
    17 Q. Sir, yes or no, your inspection reports
      
    18 should not contain derogatory comments, correct?
      
    19 A. That's correct.
      
    20 Q. Okay. And as far as you know with
      
    21 respect to Morris Community Landfill, in your
      
    22 inspection report, you've attempted at all times
      
    23 to follow that rule?
      
    24 A. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    72
      
      
      
    1 Q. Okay. Your reports state only the facts,
      
    2 correct?
      
    3 A. Correct.
      
    4 Q. You have in front of you your -- a copy
      
    5 of the record in this case, and I'd like to
      
    6 direct your attention -- after the index
      
    7 section, the pages are consecutively numbered.
      
    8 I'd like to direct your attention to pages 55
      
    9 through 59.
      
    10 Are you with me?
      
    11 A. Yes.
      

    12 Q. Okay. That is your preoperational
      
    13 inspection report with respect to the permit
      
    14 application that's at issue in this case,
      
    15 correct?
      
    16 A. Correct.
      
    17 Q. Your inspection report as it appears at
      
    18 pages 55 through 59 of the record does not list
      
    19 a single violation of the Act or the
      
    20 regulations, does it?
      
    21 A. No.
      
    22 Q. Okay. The entire time that you've been
       
    23 inspecting this landfill, in each one of your
      
    24 inspection reports, you've not noted a single
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    73
      
      
      
    1 new violation of the landfill regulations or the
      
    2 Act, have you?
      
    3 A. No.
      
    4 Q. Okay. Sir, are you aware of a single
      
    5 fine or adjudication of a violation levied
      
    6 against Morris Community Landfill in the almost
      
    7 20 years that my clients have been operating the
      
    8 fill?
      
    9 A. No.
      
    10 MR. LaROSE: Mr. Halloran, I'm going to
      

    11 show the witness what we've previously marked as
      
    12 Exhibit No. 77. I've already supplied Mr. Kim
      
    13 with a copy of that.
      
    14 BY MR. LaROSE:
      
    15 Q. All right. Sir, that is your inspection
      
    16 report from April 17th, 2000, correct?
      
    17 A. Yes.
      
    18 Q. I was present at that inspection,
       
    19 correct?
      
    20 A. Yes.
      
    21 Q. At any time during that inspection, was
      
    22 your inspection in any way -- did we attempt at
      
    23 any time to limit the scope of your inspection?
      
    24 A. No.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    74
      
      
      
    1 Q. Was the inspection conducted cordially?
      
    2 A. Yes.
      
    3 Q. Were we cooperative?
      
    4 A. Yes.
      
    5 Q. Did we let you see anything that you
      
    6 wanted to see?
      
    7 A. Yes.
      
    8 MR. KIM: I'm going to object to the
      
    9 reference to this exhibit on relevance grounds.
      

    10 The date is April 17th. This predates the date
      
    11 that the application in question was even
      
    12 submitted. So I fail to see the relevance of
      
    13 this particular document.
      
    14 HEARING OFFICER HALLORAN: Mr. LaRose.
       
    15 MR. LaROSE: The relevance of this
      
    16 document, sir, goes to the old issue of this
      
    17 gentleman's opinion, which we'll get to in a
      
    18 minute, that the site is operating and was
      
    19 operating at this time illegally, which goes to
      
    20 -- which attaches relevance to the statements
      
    21 that he made in his e-mail to Ms. Munie and his
      
    22 memo to Ms. Roque that we were conducting sloppy
      
    23 operations in violation of the Act, disregarding
      
    24 things, and how in the world could we possibly
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    75
      
      
      
    1 get a permit. This background goes to his bias
      
    2 and prejudice with respect to those issues.
      
    3 HEARING OFFICER HALLORAN: Mr. Kim.
      
    4 MR. KIM: I don't have anything further.
      
    5 HEARING OFFICER HALLORAN: I'm sorry?
      
    6 MR. KIM: I have nothing to respond to
      
    7 Mr. LaRose. I still think it's irrelevant. I
      
    8 think the witness has testified that he hasn't
      

    9 found any new violations. He can ask questions
      
    10 about those statements if he'd like, but I don't
      
    11 know why it's important to bring in this
      
    12 document. Again, this predates the whole
      
    13 application being submitted to begin with. I
      
    14 just don't think it's relevant.
      
    15 HEARING OFFICER HALLORAN: Is this in the
      
    16 record?
      
    17 MR. KIM: No, it's not.
      
    18 HEARING OFFICER HALLORAN: I'm going to
      
    19 sustain Mr. Kim's objection.
      
    20 MR. LaROSE: Sir, I'd like to make a
      
    21 brief offer of proof then with respect to the
      
    22 relevancy of this document.
      
    23 HEARING OFFICER HALLORAN: You may.
      
    24 MR. LaROSE: Thank you.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    76
      
      
      
    1 BY MR. LaROSE:
      
    2 Q. Okay. Sir, this is your inspection
       
    3 report?
      
    4 A. Yes.
      
    5 Q. Okay. In this inspection report, you've
      
    6 noted there's a portion of it that starts after
      
    7 numbered page six that is your comments.
      

    8 Can you find that for me?
      
    9 A. Numbered -- oh, page six of the --
      
    10 Q. Of the report itself and the page right
      
    11 after that begins your comments, correct?
      
    12 A. Okay. Sure. Yes.
      
    13 Q. Okay. Sir, during this inspection, was
      
    14 it apparent to you that the landfill was -- had
      
    15 been dressed up and was looking much better?
      
    16 A. Yes.
      
    17 Q. You say at the bottom of that first page
      
    18 of your comments, no new apparent violations
      
    19 observed; however, the following continuing
      
    20 violations remain outstanding, correct?
      
    21 A. Yes.
      
    22 Q. And then you list one, two, three, four
      
    23 pages of the alleged continuing violations,
      
    24 correct?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    77
      
      
      
    1 A. Yes.
      
    2 Q. Didn't you just copy those alleged
      
    3 continuing violations out of the inspection
      
    4 reports that were generated by your predecessor
      
    5 inspectors?
      
    6 A. Yes.
      

    7 Q. And you didn't do anything at any time
      
    8 either before this or after this to confirm
      
    9 whether these continuing violations actually
      
    10 existed at the site?
      
    11 A. No.
      
    12 Q. With respect to some of the continuing
      
    13 violations, sir, weren't a lot of these related
      
    14 to operating without a permit after September
      
    15 18th, 1997?
      
    16 A. Yes.
      
    17 Q. Okay. That was the Agency's contention
      
    18 that we should not have been operating after
      
    19 September 18th, 1997?
      
    20 A. Yes.
      
    21 MR. LaROSE: Sir, that's the end of the
       
    22 offer of proof, and with that, I would renew my
      
    23 statement that this document is relevant to this
      
    24 witness' knowledge of the site and the fact that
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    78
      
      
      
    1 he did nothing to confirm continuing violations;
      
    2 yet, a year and a half later made e-mails
      
    3 directly to the permit section saying we weren't
      
    4 complying with the law.
      
    5 HEARING OFFICER HALLORAN: Mr. Kim,
      

    6 anything?
      
    7 MR. KIM: No. Just the same objection.
      
    8 HEARING OFFICER HALLORAN: I stand on my
      
    9 ruling.
      
    10 BY MR. LaROSE:
      
    11 Q. Sir, did anyone tell you prior to your
      
    12 deposition about ten days ago that the Board had
      
    13 ruled against the Agency and in our favor on
      
    14 this issue of continuing violations?
      
    15 A. No, not that I'm aware of.
      
    16 Q. And that they had ruled against the
       
    17 Agency and in our favor on this issue of
      
    18 operating without a permit?
      
    19 A. No.
      
    20 Q. Okay. Don't your inspection reports
      
    21 today still contain these violations even though
      
    22 the Board has ruled against you?
      
    23 A. Yes.
      
    24 Q. Have you read the Board's decision?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    79
      
      
      
    1 A. No.
      
    2 MR. KIM: I'm going to object. It's my
      
    3 understanding that -- and, admittedly, I'm not
      
    4 familiar with the enforcement case the way Mr.
      

    5 LaRose is, but it's my understanding that the
      
    6 Board's final decision on what he's discussing
      
    7 came in an order that postdates the decision
      
    8 that's being discussed here.
      
    9 In other words, I believe that the
      
    10 Board's final order in your case that you're
      
    11 referring to was dated after May 11th, 2001; is
       
    12 that correct? It was either July or August,
      
    13 wasn't it?
      
    14 MR. LaROSE: The original decision was
      
    15 April 5th, which was modified by a second
      
    16 decision on a motion to reconsider. I think
      
    17 that was some time in June, which was modified
      
    18 on a motion for a clarification. So the
      
    19 original order dated April 5th ruled on this and
      
    20 it was later clarified, I think, July or August
      
    21 of this year.
      
    22 MR. KIM: And, obviously, we would object
      
    23 to any reference to the enforcement case insofar
      
    24 as it didn't have any bearing on this case, but
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    80
      
      
      
    1 if there is going to be reference made, I think
      
    2 the Board should restrict whatever review it
      
    3 decides to give to the enforcement case to
      

    4 whatever decision it made up to May 11th, 2001,
      
    5 the date of this decision, and not take into
       
    6 account any decisions that happened after that
      
    7 date.
      
    8 HEARING OFFICER HALLORAN: It's my
      
    9 understanding the motion for reconsideration was
      
    10 more or less, as you state, a clarification. So
      
    11 I'm going to sustain Mr. Kim's objection and
      
    12 limit it to anything prior to May 11th.
      
    13 MR. KIM: Thank you.
      
    14 BY MR. LaROSE:
      
    15 Q. Sir, were you aware that on April 5th the
      
    16 Board issued an order on this issue in our
      
    17 favor?
      
    18 A. No.
      
    19 Q. Okay. And no one has told you that?
      
    20 A. Not that I'm aware of.
      
    21 Q. And when you wrote your memo to Joyce
      
    22 Munie and to Christine Roque, you still believed
      
    23 that we were in violation of operating without a
      
    24 permit, correct?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    81
      
      
      
    1 A. Yes.
       
    2 Q. For the last year and a half, sir, you
      

    3 personally felt that the landfill was operating
      
    4 without a permit, yes or no?
      
    5 A. Yes.
      
    6 Q. And you told Christine Roque in a
      
    7 conversation with her that the landfill should
      
    8 not be granted a permit, correct?
      
    9 A. Expressing my opinion.
      
    10 Q. But you told her that the landfill should
      
    11 not be granted a permit, yes or no?
      
    12 A. I believe so, yes.
      
    13 Q. And you had discussions with the head of
      
    14 the permit section, Joyce Munie, that the
      
    15 facility should not be allowed to operate, and
      
    16 those discussions predated May 11th, 2001,
      
    17 correct?
      
    18 MR. KIM: I'm going to object only on the
      
    19 grounds that if Mr. LaRose is making specific
      
    20 reference to documents in the record, it would
      
    21 be helpful if he could identify it. If he's
      
    22 asking questions outside of the record, then I'd
      
    23 like that clarified as well.
       
    24 HEARING OFFICER HALLORAN: Mr. LaRose.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    82
      
      
      
    1 MR. LaROSE: The information that I'm
      

    2 attempting to elicit in this hearing came from
      
    3 the information that I asked him about at his
      
    4 deposition. There were documents that are in
      
    5 the record as e-mails, but he also said that he
      
    6 had conversations prior to May 11th with Joyce
      
    7 Munie expressing those same opinions, and that's
      
    8 what I'm asking him about now.
      
    9 HEARING OFFICER HALLORAN: I think Mr.
      
    10 LaRose may explore it.
      
    11 MR. KIM: Yeah. I was just looking for a
      
    12 clarification.
      
    13 HEARING OFFICER HALLORAN: Okay.
      
    14 BY MR. LaROSE:
      
    15 Q. Sir, again, so that the record is clear,
      
    16 you and Joyce Munie, the head of the land bureau
      
    17 permit section, had discussions that the
       
    18 facility should not be allowed to operate and
      
    19 those discussions occurred prior to May 11th,
      
    20 2001?
      
    21 A. It's possible my conversation did contain
      
    22 that sort of wording.
      
    23 Q. As of September 1999, when the
      
    24 significant modification permit application was
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    83
      
      
      

    1 originally denied, you were directed by your
      
    2 boss, the big boss, Paul Purseglove, to go to
      
    3 the site and log trucks in and out of the
      
    4 facility, correct?
      
    5 A. Yes.
      
    6 Q. That was because at the time everybody at
      
    7 the Agency that had responsibility with
      
    8 Community Landfill believed that we were
      
    9 operating illegally, correct?
      
    10 A. Yes.
      
    11 Q. And you actually went out for two days
      
    12 log --
      
    13 MR. KIM: I'm sorry. The same objection
       
    14 as before. I don't think it's ever been
      
    15 established when this happened or what relevancy
      
    16 at all logging license plate numbers has to do
      
    17 with this permit issue.
      
    18 HEARING OFFICER HALLORAN: Mr. LaRose,
      
    19 try to set up the content, the time and the
      
    20 place.
      
    21 MR. LaROSE: Yes, sir.
      
    22 BY MR. LaROSE:
      
    23 Q. The permit was denied -- the first SIGMOD
      
    24 permit was denied September 1st, 1999.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    84
      

      
      
    1 Do you remember that?
      
    2 A. Yes.
      
    3 Q. And soon thereafter, you were ordered by
      
    4 your boss to go out to the Morris Community
      
    5 Landfill and actually observe and log license
      
    6 plate numbers of trucks in and out of my
      
    7 client's facility, correct?
      
    8 A. Yes.
      
    9 Q. And that would have happened in the early
      
    10 part of September 1999, correct?
      
    11 A. I believe so, yes.
      
    12 MR. KIM: Again, I'm going to object on
      
    13 the grounds of relevancy. This is now going
      
    14 over -- well over a year before this application
      
    15 came in. This had nothing -- and this actually
      
    16 even predates the last set of appeals that we
      
    17 had a hearing on in January. So I don't see the
      
    18 relevance of this line of questioning at all.
      
    19 This has nothing to do with the case at hand.
      
    20 MR. LaROSE: This is directly related to
      
    21 our argument and position in this case that
      
    22 they're attempting to use these permits to do
      
    23 what they were unable to do in the enforcement
      
    24 case. The fact that this gentleman who sent
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      

    85
      
      
      
    1 e-mails attempting to influence the permit
      
    2 decision in this case believed and, in fact,
       
    3 went out to the site to log in trucks because we
      
    4 were operating illegally relates to his later
      
    5 involvement, direct involvement, in the permit
      
    6 action in this case.
      
    7 It's background information that
      
    8 goes all to his bias and prejudice and both to
      
    9 our ability to explore and contest the things he
      
    10 wrote to Joyce Munie in December of the year
      
    11 2000 and later to Christine Roque in March of
      
    12 2001.
      
    13 HEARING OFFICER HALLORAN: It's my
      
    14 understanding Mr. Purseglove testified to the
      
    15 same when he was up here on the stand.
      
    16 MR. KIM: Yeah. I believe I objected,
      
    17 but that the questions were asked, and, again,
      
    18 the grounds there were the same as here.
      
    19 There's no reference in these reports to any
      
    20 activity involving logging down license tags or
      
    21 anything that happened out at the site in 1999,
      
    22 and, again, for that matter, that would predate
      
    23 the August 2000 issuance of the SIGMOD permits
      
    24 that were later appealed.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     

      
      
    86
      
      
      
    1 Again, I just fail to see how that
      
    2 has any relevance to what's going on here. If
      
    3 he wants to ask him questions about the
      
    4 statements he made in his e-mails or if he'd
      
    5 like to ask him what his basis was, I think
      
    6 that's fair, but I don't understand how this has
      
    7 any relevance to his statements in the record.
      
    8 MR. LaROSE: And that's just the point,
      
    9 sir. He says on page 54 of the record, the site
      
    10 has been involved in extensive enforcement and
      
    11 it seems to disregard the Act, the regulations,
      
    12 and the input of the Agency.
      
    13 Well, I don't know, but when they
      
    14 went out there, we told them to get the hell off
      
    15 of our property and go out in the street if they
      
    16 wanted to do this illegal activity. This is the
      
    17 testimony and evidence that relates directly to
      
    18 the things that he's writing to the permit
      
    19 people about extensive enforcement disregarding
      
    20 the Acts, the regulations, and the input of the
      
    21 Agency, and his comment that we get a lot --
      
    22 away with quite a bit of sloppy operations with
      
    23 little or no repercussion. I think it's germane
      
    24 to that issue. I think I should be allowed to
      
      
      
    L.A. REPORTING (312) 419-9292

      
     
      
      
    87
      
      
      
    1 explore it.
      
    2 HEARING OFFICER HALLORAN: Mr. Kim, I'm
      
    3 going to overrule your objection, but if we
      
    4 could wrap it up in a hurry, Mr. LaRose.
      
    5 MR. LaROSE: Thank you.
      
    6 BY MR. LaROSE:
      
    7 Q. Sir, again, the reason why you were out
      
    8 there was because you and other people at the
      
    9 Agency believed we were operating illegally,
      
    10 correct?
      
    11 A. Yes.
      
    12 Q. You spent two days out at the landfill
      
    13 logging in the trucks?
      
    14 A. Yes.
      
    15 Q. Was the purpose of doing that so that you
      
    16 could contact our customers and tell them that
      
    17 we were operating illegally?
      
    18 A. Not myself. I don't know.
      
    19 Q. Do you know what the purpose was?
      
    20 A. I would assume to document that waste was
      
    21 being received and disposed of at the facility.
      
    22 Q. And as a result of this, didn't we have
      
    23 conversations with your boss that day and
      
    24 ordered you to leave the property?
      
      

      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    88
      
      
      
    1 A. Yes.
      
    2 Q. And you went out in the middle of -- not
      
    3 in the middle, but on the side of Ashley Road
      
    4 and continued for two days to log in this
      
    5 activity?
      
    6 A. Yes.
      
    7 Q. Do you know whether the Agency ever
      
    8 contacted any of our customers to tell them that
      
    9 we were operating illegally?
      
    10 A. No, I don't.
      
    11 Q. One way for you to communicate with the
      
    12 permit section is through formal inspection
      
    13 reports which we've already established are
      
    14 required to be factual, correct?
      
    15 A. Yes.
      
    16 MR. LaROSE: Mr. Halloran, I'm going to
      
    17 hand the witness what's previously been marked
      
    18 as Exhibit 78 and ask him to take a look at
      
    19 that, please.
      
    20 BY MR. LaROSE:
      
    21 Q. Sir, that's a package that contains your
      
    22 December 5th inspection report, correct?
      
    23 A. Correct.
      
    24 Q. Now, that is also the same inspection

      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    89
      
      
      
    1 that was the subject of your e-mail to Joyce
       
    2 Munie on December the 7th, which appears on page
      
    3 53 of the record, correct? Take a look at 53.
      
    4 A. Yes.
      
    5 Q. Okay. This inspection report is a public
      
    6 document, right?
      
    7 A. That's correct.
      
    8 Q. This was sent on December the 20th to Mr.
      
    9 Pruim, correct?
      
    10 A. Yes.
      
    11 Q. To Mr. Pelnarsh, Senior, at the landfill,
      
    12 correct?
      
    13 A. Yes.
      
    14 Q. And to the then-mayor of the City of
      
    15 Morris, Robert T. Feeney, correct?
      
    16 A. Yes.
      
    17 Q. Now, your inspection report itself, if
      
    18 you look at the first page after numbered page
      
    19 six, is your comments, correct?
      
    20 A. Yes.
      
    21 Q. Again, you say no new apparent violations
      
    22 were observed. However, the following
      
    23 continuing violations remain outstanding, right?

      
    24 A. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
       
     
      
      
    90
      
      
      
    1 Q. These are the very same continuing
      
    2 violations that you had copied from your
      
    3 predecessors' reports, correct?
      
    4 A. Yes.
      
    5 Q. And still by this time as of December the
      
    6 5th, 2000, you hadn't done anything to
      
    7 independently verify whether any of these
      
    8 violations existed?
      
    9 A. No.
      
    10 Q. Okay. You've worked for the Agency for
      
    11 14 years, right?
      
    12 A. Almost, yes.
      
    13 Q. Is it true that the first time that
      
    14 anyone told you that the Agency does not use
      
    15 permits as enforcement was a day or two before
      
    16 your October 5th, 2001, deposition?
      
    17 A. Yes.
      
    18 Q. Cliff Gould and John Kim told you that?
      
    19 A. Cliff Gould did.
      
    20 Q. And as of that date, for the first time,
      
    21 you understood that enforcement and permitting
      
    22 should be separate?

      
    23 A. Yes.
      
    24 Q. Okay. Prior to May 11th, that was not
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    91
      
      
      
    1 your understanding, was it?
      
    2 A. Correct. Yes.
      
    3 Q. Correct, it was not your understanding?
      
    4 A. Yes. That's true.
      
    5 Q. You contacted Joyce Munie by e-mail on
      
    6 12-7-2001 (sic), correct?
      
    7 A. Yes.
      
    8 Q. Did you understand that as of 12-7-2000 --
      
    9 I'm sorry, 12-7-2000.
      
    10 Did you understand that as of
      
    11 12-7-2000 that it was okay to express conjecture
      
    12 or opinion or derogatory comments in an e-mail
      
    13 to the head of the permit section?
      
    14 A. Repeat that, please.
      
    15 Q. Yes, sir.
      
    16 MR. KIM: I'm going to object, again, to
      
    17 the characterization of derogatory comments. I
       
    18 don't have a problem if Mr. LaRose does what he
      
    19 did before. If you could just say opinions and
      
    20 you can --
      
    21 HEARING OFFICER HALLORAN: Sustained,

      
    22 sustained. Mr. LaRose.
      
    23 BY MR. LaROSE:
      
    24 Q. Did you understand as of 12-7-2000 that
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    92
      
      
      
    1 it was okay to express your opinion to the head
      
    2 of permits in an e-mail?
      
    3 A. Yes.
      
    4 Q. Okay. The same question with respect to
      
    5 conjecture?
      
    6 A. Yes.
      
    7 Q. The same question with respect to
      
    8 unfavorable or derogatory comments with respect
      
    9 to the permittee?
      
    10 MR. KIM: Objection as to the second
      
    11 part.
      
    12 MR. LaROSE: Sir, again, 30 times in his
      
    13 deposition, he understood the question and he
       
    14 answered it that way. I'm entitled to --
      
    15 HEARING OFFICER HALLORAN: He may
      
    16 answer.
      
    17 BY MR. LaROSE:
      
    18 Q. Sir?
      
    19 A. Yes.
      
    20 Q. Okay. In fact, it was your understanding

      
    21 that as opposed to inspection reports, you were
      
    22 authorized to use interoffice memos to --
      
    23 interoffice memos or e-mails to express
      
    24 conjecture, opinion, or derogatory comments,
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    93
      
      
      
    1 correct?
      
    2 A. That's correct.
      
    3 Q. Okay. What purpose does that serve under
      
    4 the Act or the landfill regulations, do you
      
    5 know?
      
    6 A. No.
      
    7 Q. Was it your supervisor,
      
    8 Mr. Gould, that told you that it was okay to
      
    9 express conjecture or opinion or derogatory
      
    10 comments in e-mails or interoffice memos?
      
    11 A. Yes.
      
    12 Q. And, in fact, didn't he tell you that
      
    13 that was the only place that it was appropriate
      
    14 to do that?
      
    15 A. That's correct.
      
    16 Q. Okay. And these comments that are in the
      
    17 e-mail to Joyce Munie, they don't appear
      
    18 anywhere in your formal inspection report that
      
    19 was sent to my client, do they?

      
    20 A. No.
      
    21 Q. And when you sent Joyce Munie the e-mail
      
    22 at this time, there's no indication that you
      
    23 also sent it to -- I'm sorry, that you also sent
      
    24 her the inspection report that contains only
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    94
      
      
      
    1 factual information?
      
    2 A. No.
      
    3 Q. Okay. You also sent your e-mail on page
      
    4 53 of Exhibit 1 to your boss, Clifford Gould,
      
    5 right?
      
    6 A. Yes.
      
    7 Q. And to the enforcement attorney Bruce
      
    8 Kugler, right?
      
    9 A. Yes.
      
    10 Q. If this matter didn't end up in a permit
      
    11 appeal, we wouldn't know that you were sending
      
    12 e-mails that contained these types of opinion to
      
    13 the permit section, would we?
      
    14 A. That's correct, yes.
      
    15 Q. You don't send these to the people you
      
    16 are making opinions about, do you?
      
    17 A. No.
      
    18 Q. Or that you are conjectruing about,

      
    19 right?
      
    20 A. No.
      
    21 Q. Or that you make any derogatory comments
      
    22 about, right?
      
    23 A. Correct.
      
    24 Q. If you're going to do this in the future,
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    95
      
      
      
    1 if I gave you my e-mail address, will you send
       
    2 me a copy of them?
      
    3 MR. KIM: Objection.
      
    4 HEARING OFFICER HALLORAN: Sustained.
      
    5 BY MR. LaROSE:
      
    6 Q. Do the opinions or conjecture that are in
      
    7 these e-mails have to have any basis in fact?
      
    8 A. Not if I'm expressing my opinion, no.
      
    9 Q. You have spoken through an e-mail
      
    10 enforcement attorney, Bruce Kugler, prior to May
      
    11 11th with respect to Community Landfill as well,
      
    12 right?
      
    13 A. Yes.
      
    14 Q. And you spoke with -- in addition to the
      
    15 e-mails, you actually spoke with Joyce Munie
      
    16 about the permits in this case?
      
    17 A. Yes.

      
    18 Q. And those conversations were another way
      
    19 in which you expressed your opinions with
      
    20 respect to the permits at issue in this case?
      
    21 A. Yes.
      
    22 Q. When you sent the e-mail to Joyce Munie
      
    23 and the memo to Christine Roque, did you realize
      
    24 that they had never been to the facility?
       
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    96
      
      
      
    1 A. I assumed that was a good possibility.
      
    2 Q. Okay. Did you realize that they were
      
    3 relying on you to be their eyes and ears and
      
    4 accurately report what you saw or heard or took
      
    5 pictures of?
      
    6 A. Yes.
      
    7 Q. At the time that you wrote the memo,
      
    8 which appears on page 54 of the record, did you
      
    9 believe that there was any prohibition against
      
    10 you communicating with permits and enforcement
      
    11 in the same case?
      
    12 A. No.
      
    13 Q. No one ever told you that you shouldn't
      
    14 be doing that, did they?
      
    15 A. No, not prior.
      
    16 Q. As a result of what you were told by

      
    17 Cliff Gould two days before your deposition, you
      
    18 now know that that wasn't proper, correct?
      
    19 A. I know that it's -- that you shouldn't
       
    20 mix enforcement and the permitting issue.
      
    21 Q. Let's talk about the hi, Joyce memo.
      
    22 That appears on page 53 of the record.
      
    23 Had you ever met Joyce Munie before?
      
    24 A. I don't believe so.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    97
      
      
      
    1 Q. When you say in her memo that you
      
    2 observed the cell on 12-5-01, had you done
      
    3 anything prior to that to verify the dimensions
      
    4 of the cell?
      
    5 A. No.
      
    6 Q. Did you measure the cell to see if it
      
    7 conformed to what the permit dimensions were?
      
    8 A. No.
      
    9 Q. Did you measure the eastern perimeter
      
    10 berm at the cell?
      
    11 A. No.
      
    12 Q. Did you measure any of the intercell
      
    13 berms?
      
    14 A. No.
      
    15 Q. Did you physically examine any of the

      
    16 soil at the cell?
      
    17 A. No.
      
    18 Q. Did you take any compaction tests?
      
    19 A. No.
      
    20 Q. Did you look at the soil rain sides?
      
    21 A. No.
      
    22 Q. Did you touch the soil to see if it was
      
    23 clay-like?
      
    24 A. No.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    98
      
      
      
    1 Q. You described -- you described the area
      
    2 in your memo as much like a parking lot.
      
    3 Do you see that on page 53 of the
      
    4 record?
      
    5 A. Yes.
      
    6 Q. Did you know that we were building a
      
    7 separation layer over old waste and new waste
      
    8 was going to be put on top of it?
      
    9 A. Yes.
      
    10 Q. So the idea that it might look like a
      
    11 parking lot actually complied with the permitted
      
    12 requirements in this case, didn't it?
       
    13 A. Yes.
      
    14 Q. During any of your inspections, wasn't

      
    15 Mr. Pelnarsh, including the 12-5 inspection,
      
    16 available to answer any of your questions?
      
    17 A. Yes.
      
    18 Q. When you went out here, you didn't have
      
    19 the acceptance report with you, right?
      
    20 A. That's correct.
      
    21 Q. You hadn't reviewed it yet, right?
      
    22 A. Only briefly with Mr. Pelnarsh.
      
    23 Q. But before you went to the site, you
      
    24 hadn't reviewed it, correct?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    99
      
      
      
    1 A. No.
      
    2 Q. When you went to the site, didn't Mr.
      
    3 Pelnarsh offer and volunteer to make that
      
    4 document available to you because he had it
      
    5 available in his office?
      
    6 A. Yes.
      
    7 Q. And, in fact, you did look at it at his
      
    8 office?
       
    9 A. Yes.
      
    10 Q. On page 53, you say, they seem to get
      
    11 away with quite a bit of sloppy operations with
      
    12 little or no repercussion.
      
    13 Your inspection report dated 12-5,

      
    14 which is Exhibit 78, doesn't say that, does it?
      
    15 A. That's correct.
      
    16 Q. And you say here at the end of the second
      
    17 paragraph on page 53 of the record, this seems
      
    18 completely inadequate and pointless to develop a
      
    19 landfill in this matter.
      
    20 You probably meant manner, right?
      
    21 A. Yes.
      
    22 Q. But that doesn't appear in your
      
    23 inspection report, does it?
      
    24 A. No.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    100
      
      
      
    1 Q. You sent this e-mail to express your
      
    2 opinion, right?
      
    3 A. That's correct.
      
    4 Q. When you said -- when you used the term
       
    5 little or no repercussion, you were attempting
      
    6 to directly refer to the pending enforcement
      
    7 case, right?
      
    8 A. Yes.
      
    9 Q. And your frustration that the enforcement
      
    10 case was taking too long?
      
    11 A. That's a good assumption, yes.
      
    12 Q. Okay. When you sent this e-mail to Joyce

      
    13 Munie, you meant to convey to her that the
      
    14 enforcement case seemed to be going on
      
    15 perpetually or, as you termed it in your
      
    16 deposition, on and on, right?
      
    17 A. Yes.
      
    18 Q. Were you venting your frustration to the
      
    19 head of permits that the enforcement case seemed
      
    20 to be going nowhere?
      
    21 A. It would appear so, yes.
      
    22 Q. At the time that you sent Joyce Munie the
      
    23 e-mail, which appears on page 53 of the record,
      
    24 had you told her or anybody else that you've
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    101
       
      
      
    1 never done anything to independently verify
      
    2 whether the continuing violations listed in your
      
    3 inspection reports currently exist?
      
    4 A. No.
      
    5 Q. Did Joyce Munie respond to this e-mail?
      
    6 A. I don't recall. I don't believe so.
      
    7 Q. Did Bruce Kugler respond to this e-mail?
      
    8 A. I don't believe so.
      
    9 Q. Did anyone, after this e-mail, tell you
      
    10 up until just a few days ago stop sending
      
    11 e-mails reporting your conjecture, opinion, or

      
    12 derogatory comments?
      
    13 A. No.
      
    14 Q. Let's look at page 54 of the record.
      
    15 That's a memo to Christine Roque dated March
      
    16 7th, 2001, directly related to her review of the
      
    17 permit in this case, correct?
      
    18 A. Yes.
      
    19 Q. And in this, you were attempting to state
      
    20 your opinion, again, right?
      
    21 A. Yes.
      
    22 Q. You were, again, attempting to vent your
      
    23 frustrations to the permit reviewer with respect
      
    24 to ongoing enforcement actions at the landfill,
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    102
      
      
      
    1 correct?
      
    2 A. Yes.
      
    3 Q. Were you, sir, venting your frustration
      
    4 at a system that would allow permits to be
      
    5 issued to folks where pending enforcement
      
    6 actions -- where enforcement actions were
      
    7 pending, but had not yet been adjudicated?
      
    8 A. That would be a fair view.
      
    9 Q. In your opinion, the mere pendency of
      
    10 alleged violations should have resulted in the

      
    11 denial of the permit, yes or no?
      
    12 MR. KIM: I'm going to object as to --
      
    13 I'm going to ask him to specify a frame of -- at
      
    14 what time that opinion would have been formed.
      
    15 MR. LaROSE: I can do that.
      
    16 BY MR. LaROSE:
      
    17 Q. When you wrote this memo on March the
       
    18 7th, 2001, to Christine Roque, was it your
      
    19 opinion that the mere pendency of alleged
      
    20 violations should have resulted in the denial of
      
    21 a permit, yes or no?
      
    22 A. In my opinion, it would be nice if that
      
    23 would be the case, but reality being what it is,
      
    24 it was unrealistic to expect that.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    103
      
      
      
    1 MR. LaROSE: Mr. Hearing Officer, I
      
    2 object to the answer as unresponsive and ask
      
    3 that it be stricken and ask that the witness be
      
    4 directed to answer the question.
      
    5 BY THE WITNESS:
      
    6 A. Can you repeat the question?
      
    7 HEARING OFFICER HALLORAN: I agree. Mr.
      
    8 Witness, yes or no?
      
    9 MR. LaROSE: I can repeat the question.

      
    10 BY MR. LaROSE:
      
    11 Q. At the time that you wrote the March 7th
      
    12 memo to Christine Roque, was it your opinion
       
    13 that the mere pendency of alleged violations
      
    14 should have resulted in the denial of the
      
    15 permit, yes or no?
      
    16 A. Should have, well, I'll go with yes.
      
    17 Q. You say in here planned engineering and
      
    18 construction do not seem to have a role in the
      
    19 construction of this cell.
      
    20 Do you have any idea what
      
    21 engineering involvement there was in the
      
    22 construction of this cell?
      
    23 A. Yes, somewhat, yes.
      
    24 Q. Okay. You read at some point the
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    104
      
      
      
    1 acceptance report?
      
    2 A. Yes.
      
    3 Q. Do you now know that engineering did have
      
    4 a role in the construction of the cell?
      
    5 A. Yes.
      
    6 Q. Do you have any criticisms of that
      
    7 engineering?
      
    8 A. No.

      
    9 Q. You say here, it's hard to believe that a
      
    10 permit was issued at all under the past and
      
    11 current circumstances.
      
    12 Was that a direct reference to the
      
    13 pending enforcement case?
      
    14 A. Yes.
      
    15 Q. Let's talk for a minute about the
      
    16 Gonzales Transfer Station.
      
    17 Do you know anything about that?
      
    18 A. Some, little information.
      
    19 Q. There was a 39(i) evaluation of the
      
    20 Gonzales Transfer Station in Chicago, was there
      
    21 not?
      
    22 A. Yes.
      
    23 Q. And that investigation was brought to
      
    24 permitting's attention by the field operation
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    105
      
      
      
    1 section, a woman named Anna Van Orden in your
      
    2 office?
      
    3 A. Yes.
      
    4 MR. KIM: I'm going to object to these
      
    5 questions. I don't think any relevance has been
      
    6 established, and I don't think there is any
      
    7 relevance between what happened in the decision

      
    8 that Mr. LaRose is referring to now and the
      
    9 decision at hand.
      
    10 HEARING OFFICER HALLORAN: Mr. LaRose.
      
    11 MR. LaROSE: We've alleged and we think
      
    12 we'll prove, Mr. Halloran, that the Agency
      
    13 treated Community Landfill under similar
      
    14 circumstances differently than it treated the
      
    15 Gonzales Transfer Station, which would then
      
    16 assist us in proving our allegation that this
      
    17 permit denial was really a pretext to closing
      
    18 down the facility.
      
    19 I think I'm entitled to explore this
      
    20 gentleman's involvement in that case, and I
      
    21 think I can establish a similarity of factual
      
    22 circumstances between the two cases.
      
    23 HEARING OFFICER HALLORAN: Mr. LaRose,
      
    24 was this in the record before the Agency at the
      
      
      
    L.A. REPORTING (312) 419-9292
       
     
      
      
    106
      
      
      
    1 time of the permit denial or issues May 11th,
      
    2 2001?
      
    3 MR. LaROSE: Is it in the record in this
      
    4 case? No. Was it in the Agency's files?
      
    5 Absolutely. They did -- the investigation of
      
    6 the Gonzales case was initiated in February of

      
    7 1999 resulting in the issuance of Wells letters
      
    8 in November of 1999 and the issuance of a permit
      
    9 on the 30th of December 1999. So was it in the
      
    10 Agency's files and did they know about it?
      
    11 Absolutely.
      
    12 HEARING OFFICER HALLORAN: Mr. Kim.
      
    13 MR. KIM: I believe when we get to the
      
    14 testimony about a permit, it will be established
      
    15 that each situation in which the use of 39(i) is
      
    16 contemplated is done on a case-by-case basis.
      
    17 That being the case, trying to compare any two
      
    18 sites is really kind of -- the facts, at least,
      
    19 really is pretty much just apples and oranges.
       
    20 One doesn't have anything to do with another.
      
    21 HEARING OFFICER HALLORAN: I'm going to
      
    22 sustain Mr. Kim's objection.
      
    23 MR. LaROSE: I don't think I'm going to
      
    24 -- no. You know what, I think I will. I'm
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    107
      
      
      
    1 going to do a brief offer of proof at this
      
    2 time. It's really not -- this witness wasn't
      
    3 involved in this particular 39(i) investigation,
      
    4 but the witnesses that were, Ms. Munie, Ms.
      
    5 Roque, Mr. Liebman had very, very limited 39(i)

      
    6 experience, and I think when we talk to them, we
      
    7 will raise the issue again, but there is a
      
    8 couple of questions that I have for Mr. Retzlaff
      
    9 under an offer of proof for this particular
      
    10 facility.
      
    11 HEARING OFFICER HALLORAN: May proceed,
      
    12 Mr. LaRose.
      
    13 MR. LaROSE: Thank you.
       
    14 BY MR. LaROSE:
      
    15 Q. The field office brought the Gonzales
      
    16 issue to the attention of the Agency?
      
    17 A. Yes.
      
    18 Q. The permit section of the Agency, I
      
    19 should say?
      
    20 A. Yes.
      
    21 Q. And it involved the criminal activity --
      
    22 criminal conviction of the operator of the site,
      
    23 Mr. Gonzales, and potential criminal activity of
      
    24 the owner of the site, a Mr. DiSilvestro?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    108
      
      
      
    1 A. I'm aware that it involved Gonzales. I'm
      
    2 not aware that it involved DiSilvestro.
      
    3 Q. Okay. Were you involved in any
      
    4 investigations with respect to Mr. DiSilvestro?

      
    5 A. Yes.
      
    6 Q. Okay. And you were involved with charges
      
    7 or potential charges that were going to be
      
    8 brought against Mr. DiSilvestro for illegal
       
    9 dumping, correct?
      
    10 A. That's not correct. If I could explain.
      
    11 Q. Go ahead.
      
    12 A. What we were working on, he was not a
      
    13 target of us. He apparently was a target of the
      
    14 FBI.
      
    15 Q. Okay. And the FBI was looking at him for
      
    16 illegal dumping.
      
    17 That's what your knowledge is?
      
    18 A. Partially, yes.
      
    19 Q. And the charges didn't pan out because
      
    20 the wire was faulty and the videotape screwed
      
    21 up?
      
    22 A. That's my understanding, yes.
      
    23 Q. Okay. Is it one of your duties and
      
    24 responsibilities to inform permitting about
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    109
      
      
      
    1 felony convictions of owner/operators of
      
    2 sanitary landfills?
      
    3 A. It hasn't been real clear.

      
    4 MR. KIM: Are we still on the offer of
       
    5 proof?
      
    6 MR. LaROSE: We are not. I'm sorry.
      
    7 HEARING OFFICER HALLORAN: Okay.
      
    8 MR. LaROSE: This is the first question
      
    9 that's not part of the offer of proof.
      
    10 HEARING OFFICER HALLORAN: I stand on my
      
    11 ruling. Mr. Kim's objection is sustained.
      
    12 MR. LaROSE: Thank you.
      
    13 HEARING OFFICER HALLORAN: Thank you.
      
    14 MR. LaROSE: Let me ask that question
      
    15 again so that we --
      
    16 HEARING OFFICER HALLORAN: Please do.
      
    17 BY MR. LaROSE:
      
    18 Q. Is it one of your duties and
      
    19 responsibilities to inform permitting about
      
    20 felony convictions of owners and operators of
      
    21 sanitary landfills that come to your attention?
      
    22 A. I suppose it could be, yes.
      
    23 Q. And certainly if you did that, nobody
      
    24 would say you were doing a bad thing?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    110
       
      
      
    1 A. No.
      
    2 Q. You knew about Robert Pruim's conviction

      
    3 for several years, correct?
      
    4 A. Yes.
      
    5 Q. Probably all the way back to 1993, right?
      
    6 A. Yes.
      
    7 Q. There was office talk in Maywood for as
      
    8 many as eight years with respect to Robert
      
    9 Pruim's conviction?
      
    10 A. Yes.
      
    11 Q. Would you characterize that office talk
      
    12 that it was common knowledge in Maywood that Mr.
      
    13 Pruim had been convicted?
      
    14 A. Yes.
      
    15 Q. Okay. Cliff Gould knew, didn't he?
      
    16 A. Yes.
      
    17 Q. You had specific discussions with Mr.
      
    18 Gould about Mr. Pruim's conviction as long ago
      
    19 as 1993?
      
    20 MR. LaROSE: Just give me a minute.
      
    21 BY MR. LaROSE:
      
    22 Q. Did Bruce Kugler know about the
      
    23 conviction?
      
    24 A. Possibly.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    111
      
      
      
    1 MR. KIM: Objection. I don't see the

      
    2 relevancy of an enforcement attorney's knowledge
      
    3 having anything to do with the permit decision.
      
    4 MR. LaROSE: I kind of questioned that,
      
    5 too, when he sent his memo that went to Joyce
      
    6 Munie and Bruce Kugler too, and I think that
      
    7 ties it up.
      
    8 Our position is that everybody at
      
    9 the Agency knew and nobody did their job. So
      
    10 the more people that I can prove that knew -- I
      
    11 mean, Mr. Purseglove got up there and said if
      
    12 you got this knowledge, you've got a duty to
      
    13 report it. I can prove at least seven, and I
      
    14 think Mr. Kugler is probably eight.
      
    15 HEARING OFFICER HALLORAN: Is Mr. Kugler
      
    16 going to be here today as a witness?
      
    17 MR. KIM: Mr. Kugler is not going to be a
      
    18 witness.
       
    19 MR. LaROSE: I was restricted in taking
      
    20 Mr. Kugler's deposition. I was told that I
      
    21 couldn't.
      
    22 MR. KIM: And the reason being there was
      
    23 nothing that Mr. Kugler was going to testify to
      
    24 that would be admissible at a hearing, which I
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    112
      
      

      
    1 believe is true. Along those same lines, I
      
    2 don't understand, first of all, on a relevancy
      
    3 basis how that question has anything to do with
      
    4 the permit decision at hand, and second -- well,
      
    5 that's the objection.
      
    6 MR. LaROSE: Again, Mr. Halloran, our
      
    7 position is and has been from day one that
      
    8 people knew about this for many, many years and
      
    9 did absolutely nothing about it, slept on their
      
    10 rights, let us spend hundreds of thousands of
      
    11 dollars, incur millions of dollars of liability,
      
    12 and then when some reporter calls them, they all
       
    13 of a sudden get religion and do their job.
      
    14 That's the Laches defense. That's the waiver
      
    15 defense. That's estoppel defense, the defense
      
    16 that we're making in this case. I think I have
      
    17 an opportunity to explore who knew, and there's
      
    18 one other reason why I think I have that
      
    19 opportunity.
      
    20 If you look at page 13 of the
      
    21 record, in the first full paragraph, third line
      
    22 from the bottom, Ms. Munie writes as part of her
      
    23 memo in the permit decision in this case,
      
    24 however, the conviction was not known before the
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    113

      
      
      
    1 complaint was brought to our attention in
      
    2 April 2001.
      
    3 Case law is absolutely clear that I
      
    4 have the right to present cross-examination and
      
    5 testimony to rebut the reasons that the Agency
      
    6 made in this case. She said, it wasn't known.
       
    7 I have the ability to prove that it was, and
      
    8 that would include Mr. Kugler as a high-ranking
      
    9 person in the legal department who should have
      
    10 done something about this if he knew about it.
      
    11 MR. KIM: In response, I think that first
      
    12 Mr. Kugler would be happy to hear he is now a
      
    13 high-ranking member of legal, and, second, any
      
    14 statement that Ms. Munie made in terms of the
      
    15 wording or what she intended in her memo I think
      
    16 should be directed to her.
      
    17 Again, I don't understand how
      
    18 anything on the part of Mr. Kugler, who had no
      
    19 part in the permit decision, how that bears any
      
    20 relevancy to this.
      
    21 HEARING OFFICER HALLORAN: I'm going to
      
    22 sustain Mr. Kim's objection. You can ask Ms.
      
    23 Munie, if you so choose, when she takes the
      
    24 stand.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      

      
    114
       
      
      
    1 MR. LaROSE: I'd like to make an offer of
      
    2 proof on this.
      
    3 BY MR. LaROSE:
      
    4 Q. Sir, did Kugler know about it?
      
    5 A. I really don't know.
      
    6 MR. LaROSE: Okay. That's the end of the
      
    7 offer of proof.
      
    8 HEARING OFFICER HALLORAN: Thank you. My
      
    9 ruling stands. Thank you.
      
    10 MR. LaROSE: That's all I have at this
      
    11 time.
      
    12 HEARING OFFICER HALLORAN: I don't want
      
    13 to slight the attorney from Rockford, Mr.
      
    14 Charles Helsten. Do you have any questions for
      
    15 the witness?
      
    16 MR. HELSTEN: Thank you. Mr. Hearing
      
    17 Officer. Just several questions. Maybe this is
      
    18 a better way that both petitioners get their
      
    19 questions out of the way and then Mr. Kim can
      
    20 ask his.
      
    21 C R O S S - E X A M I N A T I O N
      
    22 by Mr. Helsten
      
    23 Q. In summary, Mr. Retzlaff, if you can just
       
    24 clarify, what were your specific reasons for
      
      
      
    L.A. REPORTING (312) 419-9292
      

     
      
      
    115
      
      
      
    1 recommending denial of the permit?
      
    2 A. Based on my experience from inspectors,
      
    3 previous inspectors, who cited all those
      
    4 violations on observations over on parcel B with
      
    5 the general site conditions at the time that I
      
    6 had seen them.
      
    7 Q. So you had two bases; one were the
      
    8 observations of the prior inspector, correct?
      
    9 A. Yes.
      
    10 Q. And what was the second basis?
      
    11 A. Personal observations of the site
      
    12 conditions.
      
    13 Q. Okay. What about site conditions
      
    14 concerned you or led you to suggest denial or
      
    15 recommended denial of the permit?
      
    16 A. Based on the conditions at parcel B, the
      
    17 old section, erosion cuts, lack of vegetation,
      
    18 ditches filled up and so forth, the sediments.
       
    19 Q. Anything else?
      
    20 A. Those were the primary.
      
    21 Q. I take it these were not included by Ms.
      
    22 Munie in her denial letter of May 11th, 2001,
      
    23 correct?
      
    24 A. I have no idea what she wrote.
      
      
      

    L.A. REPORTING (312) 419-9292
      
     
      
      
    116
      
      
      
    1 Q. Okay. You never saw the denial letter?
      
    2 A. I really don't know. I get a lot of mail
      
    3 that comes through. I scan a lot of it.
      
    4 HEARING OFFICER HALLORAN: Keep your
      
    5 voice up, sir.
      
    6 THE WITNESS: Sure.
      
    7 MR. HELSTEN: That's all, Mr. Hearing
      
    8 Officer.
      
    9 HEARING OFFICER HALLORAN: Thank you,
      
    10 Mr. Helsten. Mr. Kim, your witness.
      
    11 MR. KIM: Just a few questions.
      
    12 R E D I R E C T E X A M I N A T I O N
      
    13 by Mr. Kim
      
    14 Q. Mr. Retzlaff, you testified that your
      
    15 understanding of the Agency's policy concerning
      
    16 enforcement and permitting has changed based
      
    17 upon recent conversations you've had?
      
    18 A. That's correct, yes.
      
    19 Q. What is your understanding now as to who
      
    20 makes -- I'll rephrase that.
      
    21 What is your understanding now as
      
    22 whether or not the Agency can take permitting
      
    23 action to reach an enforcement conclusion?
      
    24 A. That you cannot.
      

      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    117
      
      
      
    1 Q. Do you know if Joyce Munie intended the
      
    2 permit denial to be a matter of enforcement?
      
    3 A. No.
      
    4 Q. Does the field operation section always
      
    5 agree with decisions that the permit section has
      
    6 made?
      
    7 A. Seldom.
      
    8 Q. There was also some testimony elicited
       
    9 concerning your comments made in certain
      
    10 documents. I believe those are found on pages
      
    11 53 and 54 of the record. If you could, turn to
      
    12 page 53, please.
      
    13 In your opinion, are the comments
      
    14 that you made in the -- well, let me rephrase
      
    15 that question.
      
    16 What parts of the e-mail that you
      
    17 sent to Joyce Munie, in your opinion, are
      
    18 derogatory comments?
      
    19 A. None.
      
    20 Q. What did -- is it safe to say that some
      
    21 of those comments that you made in there were
      
    22 restricted as Mr. LaRose was asking you towards
      
    23 the technical aspects of the landfill?
      

    24 A. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    118
      
      
      
    1 Q. And what were the other comments that you
      
    2 made in there? How would you characterize them?
      
    3 A. Just opinion.
       
    4 Q. Okay. Do you ever express derogatory
      
    5 comments in what you interpret to be or what you
      
    6 understand to be derogatory comments --
      
    7 MR. LaROSE: Objection, leading.
      
    8 HEARING OFFICER HALLORAN: He may answer,
      
    9 if he can.
      
    10 MR. KIM: I'm sorry. I was going to add
      
    11 to that to finish the question.
      
    12 BY MR. KIM:
      
    13 Q. -- in interoffice e-mails or memorandum?
      
    14 A. No.
      
    15 Q. You were also asked about your
      
    16 understanding of the field operation section's
      
    17 role as the eyes and ears of the Agency and
      
    18 maybe more specifically for the permit section,
      
    19 if necessary.
      
    20 What steps do you take in order to
      
    21 act as the eyes and ears for the permit section
      
    22 when you perform landfill inspections?
      

    23 A. File review, discussions possibly with
      
    24 previous inspectors, site visit, maybe
      
      
      
    L.A. REPORTING (312) 419-9292
       
     
      
      
    119
      
      
      
    1 discussions with permitters as well.
      
    2 Q. Okay.
      
    3 A. The writers.
      
    4 Q. And specifically as to the inspection
      
    5 that you conducted on December 5th, why did you
      
    6 conduct an inspection on that day?
      
    7 A. James Pelnarsh, Senior, had asked me to
      
    8 because the site was ready. Basically, they had
      
    9 finished it. He had asked me to do it then.
      
    10 Q. And I don't recall if you answered this
      
    11 question or not, but what is your understanding
      
    12 of any Agency policy or any Agency guideline as
      
    13 to how you are supposed to pass on information,
      
    14 rumors, what have you, of potential criminal
      
    15 convictions of permit applicants?
      
    16 A. I'm not aware of any formal policy.
      
    17 Q. Are you aware of any formal guidance or
      
    18 any documents?
      
    19 A. No, none.
      
    20 MR. KIM: No further questions.
       
    21 MR. LaROSE: Thank you, Mr. Kim. Mr.
      

    22 LaRose.
      
    23
      
    24
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    120
      
      
      
    1 R E C R O S S - E X A M I N A T I O N
      
    2 by Mr. LaRose
      
    3 Q. How about the telephone, sir, would that
      
    4 have been a good mechanism to convey your
      
    5 knowledge of the conviction?
      
    6 A. Sure.
      
    7 Q. E-mail?
      
    8 A. Yes.
      
    9 Q. Candigram?
      
    10 MR. KIM: Objection.
      
    11 HEARING OFFICER HALLORAN: Sustained.
      
    12 BY MR. LaROSE:
      
    13 Q. You had any number of means at your
      
    14 disposal to convey this to management or legal,
      
    15 correct?
      
    16 A. Yes.
      
    17 Q. There was no impediment to that, correct?
      
    18 A. No.
       
    19 Q. Did anyone need to write a policy that
      
    20 said you should pick up the phone and call them
      

    21 and give them this information?
      
    22 A. No.
      
    23 Q. Okay. Look at page 53 of your -- of the
      
    24 record. Quite a bit of sloppy operations, while
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    121
      
      
      
    1 up wouldn't characterize that as a derogatory
      
    2 comment, it's certainly not complimentary, is
      
    3 it?
      
    4 A. No.
      
    5 Q. When you came out there to have the
      
    6 inspection with me when we spent an hour and a
      
    7 half back in April of 2000, did you tell me that
      
    8 you thought the operations were sloppy?
      
    9 A. No.
      
    10 MR. KIM: Objection. That's beyond the
      
    11 scope.
      
    12 BY MR. LaROSE:
      
    13 Q. Have you ever told Jim Pelnarsh that the
      
    14 operations were sloppy?
       
    15 A. Not in so many words.
      
    16 Q. If you really believed that, why wouldn't
      
    17 you tell the guy that you were doing the
      
    18 inspection with?
      
    19 A. I have asked him to correct areas that
      

    20 needed attention.
      
    21 Q. Okay. And if you asked him to do that,
      
    22 when you came back the next time, had he done
      
    23 it?
      
    24 A. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    122
      
      
      
    1 MR. LaROSE: That's all I have.
      
    2 HEARING OFFICER HALLORAN: Thank you, Mr.
      
    3 LaRose. Mr. Helsten.
      
    4 MR. HELSTEN: Nothing.
      
    5 HEARING OFFICER HALLORAN: Mr. Kim.
      
    6 MR. KIM: Nothing further.
      
    7 HEARING OFFICER HALLORAN: Okay. Thank
      
    8 you. You may step down. Let's go off the
      
    9 record.
      
    10 (Discussion had
       
    11 off the record.)
      
    12 HEARING OFFICER HALLORAN: All right.
      
    13 We're back on the record. It's approximately
      
    14 11:25 -- 11:27. We're going to take a 60-minute
      
    15 lunch break. Everybody be back here by no later
      
    16 than 12:30.
      
    17 MR. LaROSE: Before I lose my track, I
      
    18 would like to offer into evidence Exhibit No.
      

    19 78, which is Mr. Retzlaff's December 5th, 2000,
      
    20 inspection report.
      
    21 MR. KIM: No objection.
      
    22 HEARING OFFICER HALLORAN: Exhibit No. 78
      
    23 is admitted into evidence.
      
    24 MR. LaROSE: I suppose I don't need to do
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    123
      
      
      
    1 this, but since I've marked it separately as an
      
    2 exhibit, I would also move into evidence Exhibit
      
    3 No. 1, which is the originally filed
      
    4 administrative record in this case.
       
    5 MR. KIM: No objection.
      
    6 HEARING OFFICER HALLORAN: That's granted
      
    7 as well.
      
    8 MR. LaROSE: And then I would move into
      
    9 admission Exhibit No. 7 -- I'm sorry, 77, which
      
    10 is Mr. Retzlaff's April 17th, 2000, inspection
      
    11 report in this case.
      
    12 MR. KIM: Same objection as before.
      
    13 HEARING OFFICER HALLORAN: I'll take it
      
    14 with the case under the condition it is for the
      
    15 offer of proof.
      
    16 MR. LaROSE: So admitted for the --
      
    17 HEARING OFFICER HALLORAN: Admitted for
      

    18 the purpose --
      
    19 MR. LaROSE: Denied, but admitted for the
      
    20 offer of proof only.
      
    21 HEARING OFFICER HALLORAN: Correct.
      
    22 (Whereupon, further proceedings
      
    23 were adjourned pursuant to the
      
    24 lunch break and reconvened
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    124
      
      
      
    1 as follows.)
      
    2 HEARING OFFICER HALLORAN: We're back on
      
    3 the record. It's approximately 12:42 in case
      
    4 number 01-170, and I believe Mr. LaRose was
      
    5 going to call his next and third witness.
      
    6 MR. LaROSE: Yes, sir. I call Joyce
      
    7 Munie.
      
    8 HEARING OFFICER HALLORAN: If I may note,
      
    9 there are no members of the public present and
      
    10 there haven't been throughout the proceedings.
      
    11 There's a couple members of the press. Thank
      
    12 you. Would you please raise your right hand,
      
    13 please?
      
    14 (Witness sworn.)
      
    15 WHEREUPON:
      
    16 J O Y C E M U N I E,
      

    17 called as a witness herein, having been first
      
    18 duly sworn, deposeth and saith as follows:
      
    19 C R O S S - E X A M I N A T I O N
      
    20 by Mr. LaRose
      
    21 Q. Good afternoon.
       
    22 A. Good afternoon.
      
    23 Q. State your name for the record, please?
      
    24 A. Joyce Munie.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    125
      
      
      
    1 Q. Joyce, you're a professional engineer?
      
    2 A. Yes.
      
    3 Q. You are currently the manager of the
      
    4 permit section of the bureau of land?
      
    5 A. Yes.
      
    6 Q. Permit decisions on land permits are your
      
    7 authority only, correct?
      
    8 A. Yes.
      
    9 Q. You have been delegated that authority by
      
    10 the director of the EPA?
      
    11 A. Yes.
      
    12 Q. And unless he took away that delegation
      
    13 not even he could reverse your decision?
      
    14 MR. McDERMOTT: She.
      
    15 BY MR. LaROSE:
      

    16 Q. She. Formerly he. Not even she could
      
    17 reverse your decision, correct?
      
    18 A. Yes.
      
    19 Q. Okay. You denied the permit in this
      
    20 case, right?
      
    21 A. Yes.
      
    22 Q. In front of you, is a copy of the record
      
    23 that we've marked as Exhibit No. 1. I'd like
      
    24 you to take a look at that. The pages are
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    126
      
      
      
    1 consecutively numbered after the index. Take a
      
    2 look at pages one and two, please, Ms. Munie.
      
    3 Is that the permit denial in this
      
    4 case?
      
    5 A. Yes.
      
    6 Q. You signed that?
      
    7 A. Yes.
      
    8 Q. It's dated May 11th, 2001?
      
    9 A. Yes.
      
    10 Q. The permit was denied for two reasons;
      
    11 one, Frontier Insurance had been delisted by the
      
    12 Department of Treasury, correct?
      
    13 A. Removed from the list.
      
    14 Q. Okay. So one of the reasons was Frontier
       

    15 Insurance had been removed from the 570 list of
      
    16 approved insurers?
      
    17 A. Correct. Yes.
      
    18 Q. The second reason was that Robert Pruim
      
    19 had been convicted of a felony in 1993, correct?
      
    20 A. Yes.
      
    21 Q. And you made the sole and ultimate
      
    22 decision with respect to that conviction,
      
    23 correct?
      
    24 A. With respect to this denial?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    127
      
      
      
    1 Q. Yes.
      
    2 But with respect to the denial, you
      
    3 made the decision with respect as it related to
      
    4 Mr. Pruim's conviction?
      
    5 A. Yes.
      
    6 Q. Look at page -- numbered paragraph two.
      
    7 You say here about five lines down, based upon
      
    8 the felony conviction of Robert J. Pruim, comma,
      
    9 which is directly related to management of waste
      
    10 in Illinois, are you the one that wrote those
      
    11 words?
      
    12 A. Yes.
      
    13 Q. And that's your interpretation of the
      

    14 information that you received and the documents
      
    15 that you reviewed during your 39(i) evaluation
      
    16 in this case?
      
    17 A. Yes.
      
    18 Q. You also were the person that granted
      
    19 permits to Community Landfill in August of 2000,
      
    20 correct?
      
    21 A. Yes.
      
    22 MR. LaROSE: Mr. Halloran, I'm going to
      
    23 show the witness what we previously marked as
      
    24 Exhibit No. 32, please.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    128
      
      
      
    1 HEARING OFFICER HALLORAN: Thank you.
      
    2 BY MR. LaROSE:
      
    3 Q. Ms. Munie, Group Exhibit 32 is the cover
      
    4 letter for the May 8th permit application for
      
    5 parcel. A couple of pages back is the LPCPA-1,
       
    6 and the rest of it is the actual permit itself
      
    7 granted on August 4th, 2000, correct?
      
    8 A. Yes.
      
    9 Q. Bob Pruim was the president of Community
      
    10 Landfill that signed the LPCPA-1 as contained in
      
    11 Exhibit 32?
      
    12 A. Yes.
      

    13 Q. And the Frontier Insurance bonds, the
      
    14 same ones that were the subject of your May 11th
      
    15 denial, were the bonds that were issued to
      
    16 support this permit application, correct?
      
    17 A. That's my understanding.
      
    18 Q. Take a look at page two of the permit,
      
    19 please. Under item C on page two, it says the
      
    20 operation, paren, i.e., waste disposal, end
      
    21 paren, within the permitted boundaries of the
      
    22 existing landfill unit.
      
    23 Did that mean that this permit was
      
    24 approving that activity?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    129
       
      
      
    1 A. This is the -- for significant
      
    2 modification to operate.
      
    3 Q. Okay. But was it approving the activity
      
    4 listed on page two, item number C?
      
    5 A. Yes.
      
    6 Q. And if you look at item number B, it was
      
    7 approving an in place net disposal capacity of
      
    8 approximately 1,459,400 cubic yards, correct?
      
    9 A. Design of that, yes.
      
    10 Q. And it was requiring, in the second
      
    11 paragraph of paragraph B, for us to reserve up
      

    12 to 475,000 cubic yards in parcel A to dispose of
      
    13 excess waste that there might be in parcel B,
      
    14 correct?
      
    15 A. Yes.
      
    16 Q. The permit at issue in this case was for
      
    17 the approval of an acceptance report for the
      
    18 separation layer and -- for portions of the
      
    19 separation layer and to place waste in the new
      
    20 cell, correct?
      
    21 A. Yes.
      
    22 Q. The separation layer was designed to
      
    23 control pollution at the site, was it not?
      
    24 A. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    130
      
      
      
    1 Q. At least part of the concept behind the
      
    2 August 2000 permit was to place the separation
      
    3 layer over the old waste, to place waste on top
      
    4 of the separation layer, and to have pollution
      
    5 control devices, such that leachate control --
      
    6 leachate would be controlled in the site,
      
    7 correct?
      
    8 A. For the new area, yes.
      
    9 Q. And all of those things, in your opinion,
      
    10 were designed to protect the environment, yes or
      

    11 no?
      
    12 A. Yes.
      
    13 Q. It is also your opinion, is it not, that
      
    14 the grant of the August 2000 permit was
      
    15 preferable for the environment rather than
      
    16 leaving the site the way it was? Ma'am?
      
    17 A. The word preferable is confusing.
       
    18 Q. Okay. Can you not answer that question?
      
    19 A. No.
      
    20 Q. Okay. Do you remember your deposition a
      
    21 week and a half ago?
      
    22 A. Yes.
      
    23 Q. Okay.
      
    24 MR. LaROSE: Page nine, Mr. Kim.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    131
      
      
      
    1 BY MR. LaROSE:
      
    2 Q. Do you remember being asked this question
      
    3 and giving this answer? Question, you told me
      
    4 -- I think you told me the last time we spoke
      
    5 on the record that you believe that the grant of
      
    6 the August SIGMODs was preferable for the
      
    7 environment rather than leaving the site just
      
    8 the way it was? Answer, yes.
      
    9 Do you remember being asked that
      

    10 question and giving that answer?
      
    11 A. Yes.
      
    12 Q. You didn't have a problem with the word
      
    13 preferable two weeks ago, but you do now?
      
    14 A. I had a problem with the word then, but
      
    15 it was deposition, and you were looking for a
      
    16 yes or no answer.
      
    17 Q. And I still am.
      
    18 A. Okay.
      
    19 Q. And you're under oath?
      
    20 A. Okay.
      
    21 Q. Do you understand what preferable means
      
    22 now?
      
    23 A. I understand what preferable means.
      
    24 Q. So was it -- was the grant of the August
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    132
      
      
      
    1 2000 permits more preferable for the environment
      
    2 than leaving the site the way it was?
      
    3 A. More preferable?
      
    4 Q. Yeah.
      
    5 A. Yes.
      
    6 Q. Is it the Agency's obligation to conduct
      
    7 a Section 39 evaluation every time a sanitary
      
    8 landfill permit is filed?
      

    9 A. Yes.
       
    10 Q. Every single application for sanitary
      
    11 landfill, the Agency is required to evaluate the
      
    12 application pursuant to Section 39(i), right?
      
    13 A. Yes.
      
    14 Q. And that means that the Agency goes into
      
    15 the evaluation mode the minute an application is
      
    16 filed, right?
      
    17 A. Yes.
      
    18 Q. You interpret the regulations as meaning
      
    19 that you only have to evaluate, but you don't
      
    20 have to investigate every application, right?
      
    21 A. Could you ask that question again?
      
    22 Q. Yes.
      
    23 Your interpretation of section 39(i)
      
    24 is that you only have to evaluate every
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    133
      
      
      
    1 application, not investigate every application?
      
    2 A. Yes.
      
    3 Q. Okay. Take a look at page 13 of Exhibit
      
    4 1, ma'am. The first full paragraph, the
       
    5 sentence that starts with the words about three
      
    6 lines -- I'm sorry. Are you with me --
      
    7 A. Yes.
      

    8 Q. -- on page 13? The first full paragraph
      
    9 on page 13, I believe it's the fourth sentence
      
    10 that begins with the word the Act, could you
      
    11 read that into the record please, that sentence?
      
    12 A. The Act does not require the Agency to
      
    13 investigate, but rather allows the Agency to
      
    14 conduct an evaluation of the operator's prior
      
    15 experience in waste management operations.
      
    16 Q. You wrote that statement, right?
      
    17 A. Yes.
      
    18 Q. Do you believe that to be an accurate
      
    19 interpretation of Section 39(i) of the Act?
      
    20 A. Yes.
      
    21 Q. If Sally Springer -- who is Sally
      
    22 Springer, by the way?
      
    23 A. She's a reviewer in the permit section
      
    24 solid waste unit.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    134
      
      
      
    1 Q. She works for you, right?
      
    2 A. She works for someone who works for me,
      
    3 yes.
      
    4 Q. Ultimately, you're her boss?
      
    5 A. Yes.
      
    6 Q. Okay. If Sally Springer was in a hearing
      

    7 where she heard sworn testimony that the Primes
      
    8 had been indicted for bribing city officials,
      
    9 should she have brought that to somebody's
      
    10 attention in the permit section so that a 39(i)
      
    11 evaluation or investigation could be conducted?
      
    12 A. If she heard what?
      
    13 Q. If she heard sworn testimony that the
      
    14 Primes had been indicted for bribing city
      
    15 officials, should she have brought that to
      
    16 someone's attention in the permit section so it
      
    17 could be evaluated or investigated, yes or no?
      
    18 A. Not necessarily.
      
    19 Q. What about if Clifford Gould heard the
      
    20 same information?
      
    21 A. Not necessarily.
       
    22 Q. What about March Retzlaff, if he heard
      
    23 the same information?
      
    24 A. Not necessarily.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    135
      
      
      
    1 Q. What about John Taylor?
      
    2 A. Not necessarily.
      
    3 Q. What about Kyle Davis?
      
    4 A. Not necessarily.
      
    5 Q. What about Jack Burds?
      

    6 A. Not necessarily.
      
    7 Q. In your deposition, when I asked you the
      
    8 same question, you told -- instead of saying not
      
    9 necessarily, you said possibly.
      
    10 Is there a reason why you're
      
    11 answering that question differently today than
      
    12 you did in your deposition?
      
    13 A. It's two weeks later. The same word
      
    14 didn't come to my mind.
      
    15 Q. Would you equate the not necessarily to
      
    16 the possibly?
      
    17 A. Yes.
       
    18 Q. In your mind, you're meaning to convey
      
    19 the same thought?
      
    20 A. Yes.
      
    21 Q. The August 2000 -- the application that
      
    22 resulted in the August 2000 permit, did you
      
    23 conduct a 39(i) evaluation of that application?
      
    24 A. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    136
      
      
      
    1 Q. And your evaluation was an evaluation of
      
    2 only what was in front of you, correct?
      
    3 A. In the application, yes.
      
    4 Q. You did not go outside the four corners
      

    5 of the application in conducting your 39(i)
      
    6 evaluation of that particular application?
      
    7 A. No.
      
    8 Q. Is it fair to say, ma'am, that the
      
    9 evaluation in that case amounted to evaluating
      
    10 the absence of information?
      
    11 A. Yes.
      
    12 Q. Did my clients have any obligation under
       
    13 any law, rule, or regulation that you're aware
      
    14 of to bring the conviction to your attention?
      
    15 A. No.
      
    16 Q. Do you feel like they hid anything from
      
    17 you?
      
    18 A. No.
      
    19 Q. If you had the same information in front
      
    20 of you in August of 2000 as you did in April of
      
    21 2001, would you have made the same decision?
      
    22 A. I can't say.
      
    23 Q. You don't know?
      
    24 A. I can't say. I don't know what I would
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    137
      
      
      
    1 do if the situation is not in front of me.
      
    2 Q. 39(i) applies to every permit for either
      
    3 a sanitary landfill or a waste disposal site,
      

    4 correct?
      
    5 A. Yes.
      
    6 Q. 39(i) makes no distinction between the
      
    7 types of permits for sanitary landfill or waste
      
    8 disposal sites as regards whether you are
       
    9 supposed to conduct an evaluation or not,
      
    10 correct?
      
    11 A. Correct.
      
    12 Q. Do you have discretion under Section
      
    13 39(i) to grant or deny permits?
      
    14 A. Yes.
      
    15 Q. Do you take that discretion seriously?
      
    16 A. Yes.
      
    17 Q. As a good environmental professional, do
      
    18 you have an obligation, do you believe, to use
      
    19 your discretion wisely, fairly, and equitably?
      
    20 A. Yes.
      
    21 Q. Out of the thousand permits or so that
      
    22 you've reviewed or signed, you've conducted only
      
    23 three 39(i) investigations, correct?
      
    24 A. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    138
      
      
      
    1 Q. One was in the ESG Watts case, correct?
      
    2 A. Yes.
      

    3 Q. Their permits were denied regarding the
      
    4 criteria under 39(i) about operating history,
       
    5 right?
      
    6 A. Not necessarily.
      
    7 Q. Okay. Tell me about the denial in ESG
      
    8 Watts?
      
    9 A. There were permits that were issued.
      
    10 Q. Okay. In ESG Watts, permits were issued,
      
    11 not denied under 39(i)?
      
    12 A. Yes.
      
    13 Q. So your involvement in Watts resulted in
      
    14 you using your discretion to grant the permits
      
    15 rather than deny them?
      
    16 A. Actually, I was not the permit manager at
      
    17 that time.
      
    18 Q. Okay. But you did -- you just told me
      
    19 you had some involvement in conducting the 39(i)
      
    20 investigation in that case?
      
    21 A. Yes.
      
    22 Q. Didn't the 39(i) investigation in that
      
    23 case result in the denial of several permits for
      
    24 the Sangamon County Landfill?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    139
      
      
       
    1 A. Some permits. Oh, excuse me. For which
      

    2 landfill?
      
    3 Q. Sangamon Valley.
      
    4 A. Oh, I can't recall.
      
    5 Q. All right. The other one that you were
      
    6 involved in, you couldn't remember the name of
      
    7 it, but it was a transfer station in Chicago?
      
    8 A. Yes.
      
    9 Q. Was it the Gonzales Transfer Station?
      
    10 A. It could be.
      
    11 Q. Do you know what the Gonzales -- what
      
    12 factor of 39(i), which of the three areas of
      
    13 information under 39(i), you were evaluating in
      
    14 the Gonzales case?
      
    15 MR. KIM: I'm going to object. I think
      
    16 the same issue came up with a previous witness
      
    17 concerning the Gonzales Transfer Station. We
      
    18 object on the grounds that it was not relevant.
      
    19 The Hearing Officer sustained the objection and
      
    20 allowed Mr. LaRose at that time to conduct an
      
    21 offer of proof. We would make the same
      
    22 objection as to relevancy for the same reasons.
       
    23 HEARING OFFICER HALLORAN: Mr. LaRose.
      
    24 MR. LaROSE: I think this is not only
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    140
      
      
      

    1 relevant to show that we were treated
      
    2 differently than the Gonzales situation, but
      
    3 it's relevant to show that this lady's
      
    4 experience with the implementation of Section
      
    5 39(i).
      
    6 Of the thousand or so permits that
      
    7 she's been involved in, she's only conducted
      
    8 three evaluations, and I think it's germane to
      
    9 the issue of whether they followed the
      
    10 appropriate procedures in this case.
      
    11 MR. KIM: I don't think she said
      
    12 evaluations. I think she said investigations.
      
    13 MR. LaROSE: I agree with that. I
      
    14 correct myself. She said she conducts an
      
    15 evaluation of every single application, which is
      
    16 just looking at it. If information comes to her
       
    17 possession, she shifts into the investigative
      
    18 mode.
      
    19 Of the thousand or so, she's only
      
    20 done only three. We're claiming they didn't
      
    21 follow appropriate procedures in this case, and
      
    22 I think I should be able to explore her
      
    23 experience with the implementation of 39(i).
      
    24 MR. KIM: And just in brief response,
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    141
      

      
      
    1 again, the testimony has been and will continue
      
    2 to be that there are no set procedures for this
      
    3 type of evaluation, that it's done on a
      
    4 case-by-case basis, and as we objected to
      
    5 before, it's trying to compare apples and
      
    6 oranges.
      
    7 The facts there are not going to be
      
    8 the same as the facts here, and so it's not as
      
    9 if you're comparing identical situations.
      
    10 They're completely different, and I don't think
       
    11 they have any bearing on this particular case,
      
    12 and they have no relevance to this case.
      
    13 MR. LaROSE: First of all, the fact that
      
    14 there are no policies and procedures should be a
      
    15 reason more so to investigate how she's
      
    16 evaluating or investigating 39(i) with respect
      
    17 to other sites, but I haven't even had an
      
    18 opportunity to show any comparison,
      
    19 similarities, or likenesses between this case
      
    20 and Gonzales.
      
    21 I think before -- I think maybe
      
    22 that's a good foundational objection, but can we
      
    23 at least get to the similarities and likenesses
      
    24 before we make a ruling?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      

    142
      
      
      
    1 HEARING OFFICER HALLORAN: I think I'm
      
    2 going to sustain Mr. Kim's objection, and then
      
    3 you may make your offer of proof, if you so
      
    4 choose.
       
    5 MR. LaROSE: Let's do that.
      
    6 HEARING OFFICER HALLORAN: Mr. LaRose
      
    7 just handed me Exhibit No. 75.
      
    8 BY MR. LaROSE:
      
    9 Q. Ms. Munie, I'm going to hand you what's
      
    10 been previously marked as Group Exhibit No. 75,
      
    11 which are excerpts from the Agency's file in the
      
    12 Gonzales case. It looks like the second and
      
    13 third pages of that document are the permit that
      
    14 was issued in this case on December the 14th,
      
    15 1999, correct?
      
    16 A. No.
      
    17 Q. Maybe you don't have the same one that I
      
    18 have. Oh, I'm sorry. You're right. It isn't
      
    19 the permit. Flip back about six pages to the
      
    20 December 30th, 1999, permit.
      
    21 A. Are those six full pages or six front and
      
    22 back pages?
      
    23 Q. Flip back to the permit, ma'am, dated
      
    24 December 30th, 1999. You know what it looks
      
      
      
    L.A. REPORTING (312) 419-9292
      
     

      
       
    143
      
      
      
    1 like.
      
    2 A. Yes.
      
    3 Q. Okay. Did you sign that permit?
      
    4 A. Yes.
      
    5 Q. The permit is for the operation --
      
    6 development and operation of a transfer station?
      
    7 A. No.
      
    8 Q. For the development of a transfer
      
    9 station?
      
    10 A. Yes.
      
    11 Q. To develop a transfer station in Cook
      
    12 County, Illinois?
      
    13 A. Yes.
      
    14 Q. The second and third pages were a
      
    15 December 14th letter -- December 14th, 1999,
      
    16 letter to trust officer Mr. Gonzales.
      
    17 Is this what you've commonly
      
    18 referred to in the past as a Wells letter?
      
    19 A. Yes.
      
    20 Q. This was a letter by which you were
      
    21 telling Mr. Gonzales that you were going to
      
    22 consider his prior convictions, correct?
      
    23 A. Yes.
      
    24 Q. In the Gonzales case, the issue was a
      
      
      
    L.A. REPORTING (312) 419-9292

      
     
      
      
    144
      
      
      
    1 prior felony conviction, right?
      
    2 A. Yes.
      
    3 Q. So that it was subcategory two, number
      
    4 two, of Section 39(i) that you were being
      
    5 involved in in this case?
      
    6 A. Yes.
      
    7 Q. And this information came to you from the
      
    8 field operation section?
      
    9 A. Yes.
      
    10 Q. It's really troublesome -- I mean
      
    11 burdensome because we don't have these pages
      
    12 numbered, but if you flip back past the permit,
      
    13 you'll see a February 19th, 1999, memo to you
      
    14 from Anna Van Orden.
      
    15 Did you find that?
      
    16 A. Yes.
      
    17 Q. Okay. This is your first knowledge of
      
    18 the felony conviction of Mr. Gonzales in this
      
    19 particular case, correct?
       
    20 A. Yes.
      
    21 Q. And this comes to you from the field
      
    22 operation section?
      
    23 A. Yes.
      
    24 Q. Ms. Van Orden says that the applicant is
      
      

      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    145
      
      
      
    1 a disbarred attorney found guilty of extorsion
      
    2 and tax evasion, correct?
      
    3 A. Yes.
      
    4 Q. She also says that he was involved in an
      
    5 investigation where hazardous waste disappeared
      
    6 while under his charge, correct?
      
    7 A. Yes.
      
    8 Q. She also says that Mr. Gonzales is
      
    9 involved in a case that has been referred to the
      
    10 Attorney General's Office, correct?
      
    11 A. Yes.
      
    12 Q. Then she talks about the property owner,
      
    13 Mr. DiSilvestro, being involved in a Silver
      
    14 Shovel investigation and criminal activities
      
    15 investigated by DCI, right?
       
    16 A. Yes.
      
    17 Q. She's saying she doesn't feel comfortable
      
    18 giving the transfer station
      
    19 to -- giving this transfer station permit to
      
    20 individuals with this background, correct?
      
    21 A. Yes.
      
    22 Q. You ultimately made the decision that it
      
    23 was okay to do so, right?
      
    24 A. Yes.

      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    146
      
      
      
    1 Q. And that was based, at least in part, on
      
    2 their lawyer's response to your Wells letter,
      
    3 right?
      
    4 A. Yes.
      
    5 Q. And that appears in this record on the
      
    6 fifth page or it starts on the fifth page?
      
    7 MR. KIM: Is that a question?
      
    8 MR. LaROSE: Yes.
      
    9 BY THE WITNESS:
      
    10 A. Oh, that was a question?
      
    11 BY MR. LaROSE:
      
    12 Q. Yes.
       
    13 A. What was the question? I'm sorry.
      
    14 Q. That's all right.
      
    15 It appears -- the response to your
      
    16 Wells letter appears on the fifth page or begins
      
    17 on the fifth page of this Exhibit 75?
      
    18 A. Fifth physical page, yes.
      
    19 Q. And it goes on for four pages, correct?
      
    20 A. Yes.
      
    21 Q. Do you know how long you gave Mr.
      
    22 Gonzales' lawyer to respond to the allegations
      
    23 of his client's felony?

      
    24 A. No.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    147
      
      
      
    1 Q. Read the -- flip to the last page of his
      
    2 letter, Mr. Slobig's letter.
      
    3 A. Uh-huh.
      
    4 Q. It says in the beginning of the second
      
    5 full paragraph, we requested in November 1999 an
      
    6 opportunity to see and respond to the matters
      
    7 raised in Ms. Munie's December 14th, 1999,
       
    8 letter.
      
    9 Does that refresh your recollection
      
    10 as to whether Mr. Slobig was aware of your
      
    11 intent to consider the felony conviction as
      
    12 early as November 1999?
      
    13 A. It would appear that way.
      
    14 Q. So even though this gentleman had been
      
    15 convicted of a felony, disbarred as an attorney,
      
    16 and had hazardous waste investigations against
      
    17 him, and the owner of the property had other
      
    18 investigations against him, you thought it was
      
    19 okay to issue them a permit?
      
    20 A. The hazardous waste investigation was not
      
    21 an adjudicated violation, and it's my
      
    22 understanding that Mr. DeSilva (sic) is not a

      
    23 permittee.
      
    24 Q. DiSilvestro?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    148
      
      
      
    1 A. DiSilvestro.
      
    2 Q. Right.
      
    3 Wasn't his trust a permittee and
      
    4 wasn't he the sole beneficiary of that trust?
      
    5 A. Not that I'm aware of.
      
    6 Q. Who was -- look at the permit, ma'am,
      
    7 December 30th, 1999.
      
    8 The owner was the trust, right?
      
    9 A. Yes.
      
    10 Q. LaSalle National Bank Trust with certain
      
    11 trust numbers.
      
    12 Do you know who the beneficiary of
      
    13 that was?
      
    14 A. Not offhand.
      
    15 Q. In making your decision in this case, you
      
    16 looked at Ms. Van Orden's memo, the document
      
    17 that's behind it regarding lawyers charged under
      
    18 Graylord, a two-page document behind that which
      
    19 appears to be some print-out information
      
    20 regarding Mr. Gonzales, and the response to the
      
    21 Wells letter, correct?

      
    22 A. Is this the entire file?
      
    23 Q. I don't think so. I think this is just
      
    24 excerpts from it, but the permit reviewer's
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    149
      
      
      
    1 notes are in there. I mean, it's certainly not
      
    2 the entire Agency's file.
      
    3 MR. KIM: Maybe just to clarify, was your
      
    4 question to her was this all that you looked at
      
    5 or was your question interpreted as whatever you
      
    6 looked at, was this included in your review?
      
    7 MR. LaROSE: I think I can clean it up a
      
    8 little. I think you're probably right.
      
    9 BY MR. LaROSE:
      
    10 Q. In making your decision in this case, you
      
    11 definitely looked at the lawyer's response to
      
    12 the Wells letter?
      
    13 A. Yes.
      
    14 Q. Okay. And you would have looked at the
      
    15 information sent to you by Anna Van Orden,
      
    16 correct?
      
    17 A. Yes.
      
    18 Q. And you would have looked at the permit
      
    19 reviewer's notes, correct?
      
    20 A. Yes.

      
    21 Q. Other than those things, do you remember
      
    22 whether you looked at anything else in making
      
    23 your decision?
      
    24 A. Not that I can recall.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    150
      
      
      
    1 MR. LaROSE: That's the end of the offer
      
    2 of proof, sir.
      
    3 HEARING OFFICER HALLORAN: This Gonzales
      
    4 permit, my understanding it was not part of the
      
    5 -- part of the record presented to the IEPA.
      
    6 MR. KIM: This was not part of the permit
      
    7 application presented to us. It was not part of
      
    8 our compilation review of the administrative
      
    9 record. That's correct.
      
    10 HEARING OFFICER HALLORAN: I stand on my
      
    11 ruling. We'll take it as an offer of proof.
      
    12 MR. LaROSE: Okay. Then I would offer
      
    13 Exhibit 75 for that purpose.
      
    14 HEARING OFFICER HALLORAN: Exhibit 75 is
      
    15 accepted for the purposes of the offer of
       
    16 proof.
      
    17 BY MR. LaROSE:
      
    18 Q. Ma'am, are there any rules or regulations
      
    19 or guidelines regarding how you're supposed to

      
    20 implement Section 39(i) of the Act?
      
    21 A. There is a Board proceeding in the Watts,
      
    22 I believe the Taylor Ridge case, and it
      
    23 specifically points to 745, which is a section
      
    24 in the regulations which is generally used for
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    151
      
      
      
    1 prior conduct certifications.
      
    2 Q. Didn't you tell me at your deposition
      
    3 that there were no rules, regulations, or
      
    4 guidelines regarding the implementation of
      
    5 Section 39(i)?
      
    6 A. And there are no rules, regulations, or
      
    7 guidelines that are specific to the
      
    8 implementation of 39(i).
      
    9 Q. So the answer to that question would be
      
    10 yes, right?
       
    11 A. I don't believe I understood your
      
    12 question then.
      
    13 Q. Okay. Maybe you didn't. Let me ask it
      
    14 again.
      
    15 Yes or no, are there any rules,
      
    16 regulations, or guidelines relating to the
      
    17 implementation of Section 39(i), yes or no?
      
    18 A. No.

      
    19 MR. KIM: Objection. Guidelines as to
      
    20 Agency produced or guidelines as to outside
      
    21 sources?
      
    22 HEARING OFFICER HALLORAN: Mr. LaRose?
      
    23 MR. LaROSE: Just guidelines.
      
    24 MR. KIM: She may have the same answer,
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    152
      
      
      
    1 though.
      
    2 MR. LaROSE: Well, she did. She said
      
    3 no.
      
    4 BY MR. LaROSE:
      
    5 Q. Are there any guidance documents that
      
    6 you're aware of from the Agency regarding the
       
    7 implementation of Section 39(i)?
      
    8 A. Of 39(i)? No.
      
    9 Q. The same question with respect to Board
      
    10 regulations?
      
    11 A. No.
      
    12 Q. When you were doing your investigation in
      
    13 this case, were you kind of winging it in terms
      
    14 of how to interpret Section 39(i)?
      
    15 A. I used my professional judgment.
      
    16 Q. Okay. And that's all you used?
      
    17 A. And the information in front of me.

      
    18 Q. You used your professional judgment to
      
    19 evaluate the information in front of you,
      
    20 correct?
      
    21 A. Yes.
      
    22 Q. You used no other guidance documents,
      
    23 correct?
      
    24 A. Correct.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    153
      
      
      
    1 Q. What's the Agency's obligation under the
      
    2 mandates of the Wells Manufacturing case?
       
    3 A. If we want to consider anything outside
      
    4 of the four corners of the application in front
      
    5 of us, we must inform the applicant that we're
      
    6 going to do that.
      
    7 Q. And that's to give them an opportunity to
      
    8 respond to the fact that you are going to look
      
    9 at something outside the four corners of the
      
    10 application, correct?
      
    11 A. I don't know if that's the specific
      
    12 purpose of it.
      
    13 Q. Do you know what the purpose is?
      
    14 A. I thought the purpose was to inform them
      
    15 that we were looking outside the four corners of
      
    16 the application.

      
    17 Q. And that's the only purpose that you
      
    18 think it is?
      
    19 MR. KIM: I'm going to object. I think
      
    20 the whole question calls for a legal
      
    21 interpretation of that case. He's asking what
      
    22 does that case impose upon the Agency. I don't
      
    23 know that that's a fair question for the
      
    24 witness. It's a question of law, not a question
       
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    154
      
      
      
    1 of fact. He can ask her interpretation of it.
      
    2 MR. LaROSE: And that's what I am asking
      
    3 her. She's -- maybe I can get to it this way.
      
    4 HEARING OFFICER HALLORAN: Very well.
      
    5 BY MR. LaROSE:
      
    6 Q. Do you understand that you, as the permit
      
    7 manager, have certain obligations under the
      
    8 Wells case?
      
    9 A. Yes.
      
    10 Q. Okay. What do you understand those
      
    11 obligations to be, ma'am?
      
    12 A. To inform the applicant that we're
      
    13 considering something outside the four corners
      
    14 of the application.
      
    15 Q. And what do you understand the purpose of

      
    16 that obligation to be?
      
    17 A. So that the applicant knows that we're
      
    18 going to be looking outside the four corners of
      
    19 the application.
       
    20 Q. And is that the extent of it?
      
    21 A. Extent of what?
      
    22 Q. The extent of the purpose, ma'am.
      
    23 A. Of my purpose in informing them?
      
    24 Q. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    155
      
      
      
    1 A. Yes.
      
    2 Q. Is part of the purpose, do you know, to
      
    3 give them an opportunity to respond to the fact
      
    4 that you're going to look at stuff outside the
      
    5 four corners of the application?
      
    6 A. I didn't know that that was a purpose,
      
    7 but that's usually the result, and that's what I
      
    8 assume someone would do with the information I
      
    9 give them.
      
    10 Q. Have you ever read the Wells
      
    11 Manufacturing case, ma'am?
      
    12 A. No.
      
    13 Q. So you don't know whether the Wells
      
    14 Manufacturing case requires you to give the

      
    15 applicant an opportunity to respond?
      
    16 MR. KIM: Again, objection. It calls for
      
    17 a legal conclusion.
      
    18 MR. LaROSE: She's the one that
      
    19 implemented it, Mr. Halloran.
      
    20 HEARING OFFICER HALLORAN: She can
      
    21 answer, if she's able?
      
    22 BY MR. LaROSE:
      
    23 Q. Ma'am?
      
    24 A. Ask the question again.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    156
      
      
      
    1 Q. You don't know whether the Wells
      
    2 Manufacturing case requires you, as the permit
      
    3 manager, to give the permittee an opportunity to
      
    4 respond to the fact that you're looking at
      
    5 things outside the permit application?
      
    6 A. No.
      
    7 Q. In the Wells letters that you sent in
      
    8 this case, you gave us -- the letter says you
      
    9 have until a certain time to respond, correct?
      
    10 A. Yes.
       
    11 Q. And you gave us until 5:00 p.m. on
      
    12 April the 9th to respond?
      
    13 MR. KIM: Which case are you referring

      
    14 to?
      
    15 MR. LaROSE: This case.
      
    16 MR. KIM: Does she have the --
      
    17 MR. LaROSE: Yes.
      
    18 HEARING OFFICER HALLORAN: What are we
      
    19 looking at?
      
    20 MR. LaROSE: You know what, I'm sorry.
      
    21 I'm sorry. She doesn't. She doesn't. Let me
      
    22 back up. I need 81. You're right. Thank you.
      
    23 Mr. Halloran, I'm going to hand you
      
    24 what's been previously marked as Exhibit No.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    157
      
      
      
    1 81. Do you have one?
      
    2 MR. KIM: I've got one. I gave you
      
    3 three.
      
    4 MR. LaROSE: Chuck, can I share with
      
    5 you?
      
    6 MR. HELSTEN: You may have this one.
       
    7 MR. LaROSE: Okay.
      
    8 BY MR. LaROSE:
      
    9 Q. Ms. Munie, I'm going to give you what's
      
    10 been previously marked as Group Exhibit No. 81,
      
    11 which is your lawyer's supplement to the record
      
    12 in this case. Don't -- try not to take the clip

      
    13 off because that's the only thing holding these
      
    14 together?
      
    15 A. I just moved it to the corner so I could
      
    16 actually look at more than the front page.
      
    17 Q. Thanks.
      
    18 The Wells letters, do you know
      
    19 whether the Wells letters were -- the Wells
      
    20 letter to me -- Strike that, the Wells letter to
      
    21 my client and to the City of Morris were
      
    22 originally included in the record or not?
      
    23 A. I don't know.
      
    24 Q. Okay. The Wells letters I asked your
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    158
      
      
      
    1 lawyer to find them because they were not
       
    2 included in the record, and you if you look
      
    3 at -- these look like they are consecutively
      
    4 numbered down at the right-hand corner. If you
      
    5 look at document number 0275, that's the Wells
      
    6 letter, right?
      
    7 A. Yes.
      
    8 Q. Okay. And that was maybe not signed by
      
    9 you, but certainly approved by you?
      
    10 A. Yes.
      
    11 Q. Okay. Your signature appears or a

      
    12 signature of a Joyce L. Munie appears on the
      
    13 second page of this document, but you didn't
      
    14 actually sign that, somebody else did?
      
    15 A. That's correct.
      
    16 Q. And you authorized them to do so?
      
    17 A. Yes.
      
    18 Q. Okay. It says here on the second page,
      
    19 this information must reach the EPA by 5:00 p.m.
      
    20 on April the 9th, 2001, and down below that, it
      
    21 says failure to submit information addressing
      
    22 the aforementioned issue by 5:00 p.m. on April
      
    23 9th, 2001, may result in a denial of your
       
    24 application.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    159
      
      
      
    1 You were giving us opportunity to
      
    2 respond by that time, correct?
      
    3 A. Yes.
      
    4 Q. Now, the letter is dated April the 4th
      
    5 and said it was sent by certified mail, right?
      
    6 A. Yes.
      
    7 Q. Do you know what day of the week April
      
    8 the 4th is?
      
    9 A. No.
      
    10 Q. I've got a calendar right here. Let's

      
    11 take a look at it. If you look down the
      
    12 left-hand side of this calendar, take a look and
      
    13 tell me what day of the week April the 4th was
      
    14 of 2001?
      
    15 A. Wednesday.
      
    16 Q. Okay. So you were going to send these
      
    17 out on Wednesday. There was going to be at
      
    18 least a weekend between April the 4th and
      
    19 April the 9th, correct?
       
    20 A. Yes.
      
    21 Q. Okay. Do you know when these documents
      
    22 were delivered by certified mail to my client?
      
    23 A. No.
      
    24 Q. You don't know that because that's not in
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    160
      
      
      
    1 the record, is it, ma'am?
      
    2 A. Okay.
      
    3 Q. Okay. Does the record or this
      
    4 supplemental record contain any evidence that my
      
    5 client ever received this document?
      
    6 A. Can I take a minute to look through the
      
    7 supplemental record?
      
    8 Q. You can look through it all you want.
      
    9 A. I've never seen it before.

      
    10 Q. You know what, focus your attention on
      
    11 pages 0275 to 0280 because I can promise you
      
    12 it's not before that.
      
    13 A. It appears that it was received by the
      
    14 City of Morris on April 9th, 2001.
       
    15 Q. That doesn't answer the question.
      
    16 When was it received by my client?
      
    17 My client is Community Landfill Company.
      
    18 A. I'm sorry. I thought you were
      
    19 representing the permittee.
      
    20 Q. Okay.
      
    21 A. I do not see anything that indicates that
      
    22 this was received by Community Landfill
      
    23 Corporation.
      
    24 Q. Okay. And what you do see on page 0279
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    161
      
      
      
    1 was that it was received by the City of Morris
      
    2 on 4-9-01, the very date that you set the
      
    3 deadline on at 5:00 o'clock for them to respond?
      
    4 A. Yes.
      
    5 Q. Did you think that was a fair enough or
      
    6 reasonable enough time for them to respond to
      
    7 this serious allegation?
      
    8 A. I think that they could have picked up

      
    9 the phone on April 9th, yes.
       
    10 Q. Didn't I write you on April the 9th and
      
    11 say this was an unreasonable time frame?
      
    12 A. I don't recall that.
      
    13 Q. Okay. Well, let's flip to page 15 of the
      
    14 record, which is Exhibit 1, and see if that
      
    15 refreshes your recollection.
      
    16 A. Yes. It would appear that
      
    17 you -- on April 9th that these letters had been
      
    18 sent.
      
    19 Q. That wasn't the question.
      
    20 Wasn't I objecting to the short time
      
    21 frame because this letter had been given to me
      
    22 by my consultant, Mike McDermott, by fax that
      
    23 morning because he had received it by a CC and
      
    24 not by certified mail.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    162
      
      
      
    1 MR. KIM: Objection. I think that's a
      
    2 fine line between leading and testifying. If he
      
    3 wants to ask her to read the letter and then ask
      
    4 her questions, that's fine, but I think he's
       
    5 putting information into his questions that's
      
    6 not found in this letter.
      
    7 MR. LaROSE: I think he's probably

      
    8 right. I think he's probably right. Let me see
      
    9 if I can break it down.
      
    10 BY MR. LaROSE:
      
    11 Q. I say here in this letter the first
      
    12 paragraph, Ms. Munie's letters were received by
      
    13 me only this morning via fax by Mr. McDermott
      
    14 who is copied on these letters, yet the letters
      
    15 require a response prior to 5:00 p.m. today. We
      
    16 object to the unreasonable time frame in which
      
    17 to respond.
      
    18 Was that as good as a telephone
      
    19 call, ma'am?
      
    20 A. This letter, yes.
      
    21 Q. So you knew that as of April the 9th we
      
    22 had less than 24 hours to respond to this
      
    23 information. You knew we were objecting to it.
      
    24 Did you ever call me up and say,
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
       
    163
      
      
      
    1 Mark, you can have a little more time?
      
    2 A. Did you not ask for a little more time in
      
    3 this letter?
      
    4 Q. No, I didn't.
      
    5 A. Why not?
      
    6 Q. Ma'am, answer the question.

      
    7 Did you ever call me and say we
      
    8 could have a little more time?
      
    9 A. No.
      
    10 Q. Okay. Weren't we saying here, the
      
    11 instant permit applications have been pending
      
    12 for several months, and all of a sudden we are
      
    13 required to respond within hours to the EPA's
      
    14 intent to consider the 1993 guilty plea. We
      
    15 think such a requirement is unfair, improper,
      
    16 and illegal.
      
    17 Did you ever respond to that in any
      
    18 way?
      
    19 A. No.
      
    20 Q. Okay. Was it a fair opportunity to
      
    21 respond by sending these letters to my client
      
    22 having no proof that they were ever received and
       
    23 having me have a few hours to respond when Mr.
      
    24 McDermott sent it to me by fax?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    164
      
      
      
    1 MR. KIM: Objection. That's an
      
    2 argumentative question.
      
    3 HEARING OFFICER HALLORAN: Mr. LaRose,
      
    4 could you please rephrase?
      
    5 BY MR. LaROSE:

      
    6 Q. Do you think you gave my client fair
      
    7 opportunity to respond to your Wells letter in
      
    8 this case?
      
    9 A. Yes.
      
    10 Q. Did you consider the pending enforcement
      
    11 case in making your permit decision?
      
    12 A. No.
      
    13 Q. Did you consider the notice of violation
      
    14 that had been issued on the Frontier bonds?
      
    15 A. No.
      
    16 Q. Did you consider the notice of intent to
      
    17 pursue legal action on the Frontier bonds?
      
    18 A. No.
       
    19 Q. Did you consider any of the enforcement
      
    20 matters pending against my client in making your
      
    21 permit decision?
      
    22 A. No. I cannot use permits for
      
    23 enforcement.
      
    24 Q. Did you consider any of our responses in
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    165
      
      
      
    1 any of the permit matters in making your
      
    2 decision?
      
    3 A. Yes.
      
    4 Q. You considered our responses in the

      
    5 enforcement case?
      
    6 MR. KIM: Objection.
      
    7 BY THE WITNESS:
      
    8 A. You said the permit case.
      
    9 MR. KIM: The question was to the permit
      
    10 case, not to the enforcement case.
      
    11 MR. LaROSE: I don't believe.
      
    12 HEARING OFFICER HALLORAN: Sustained.
      
    13 BY MR. LaROSE:
      
    14 Q. Okay. Ma'am, did you consider our
       
    15 responses to the enforcement case in making your
      
    16 permit decisions in this case?
      
    17 A. No.
      
    18 Q. Was the fact that the Frontier Insurance
      
    19 Company had been removed from the 570 list
      
    20 considered by you in denying this permit?
      
    21 A. Not specifically.
      
    22 Q. Okay. That was part of the permit
      
    23 denial, though, wasn't it?
      
    24 A. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    166
      
      
      
    1 Q. Was the delisting or the removal from the
      
    2 list something that was in the permit
      
    3 application?

      
    4 A. No.
      
    5 Q. So that would have been something outside
      
    6 of the permit application that you considered,
      
    7 correct?
      
    8 A. It's part of the file.
      
    9 Q. Okay. Answer the question, ma'am.
      
    10 Yes or no, was the delisting from
       
    11 the 570 list something outside the application
      
    12 that you considered?
      
    13 A. Yes.
      
    14 Q. Did we get a Wells letter on that one?
      
    15 A. No.
      
    16 Q. In this case, you received a phone call
      
    17 from a reporter, Chuck Pelkie, regarding
      
    18 information about my client's criminal
      
    19 conviction, right?
      
    20 A. Yes.
      
    21 Q. You had spoken to Mr. Pelkie before,
      
    22 hadn't you?
      
    23 A. Yes.
      
    24 Q. In fact, you had spoken to him several
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    167
      
      
      
    1 times before, probably more than ten times, had
      
    2 you not?

      
    3 A. Can you say before what?
      
    4 Q. Before he called you with the criminal
      
    5 conviction information.
      
    6 A. Yes.
      
    7 Q. The first time you spoke to Mr. Pelkie
       
    8 was right after the last time we had a hearing,
      
    9 permit hearing, in the Community Landfill
      
    10 matter, right?
      
    11 A. It was during the last day of the
      
    12 hearing.
      
    13 Q. And when you spoke to him on that day,
      
    14 you talked to him for more than two hours?
      
    15 A. Up to two hours.
      
    16 Q. And in this two-hour conversation, you
      
    17 were giving him, I think you called it, a
      
    18 landfill 101 lesson?
      
    19 A. Yes.
      
    20 Q. When he called you to tell you about the
      
    21 information on the criminal conviction, were you
      
    22 embarrassed that this had to be brought to your
      
    23 attention by a reporter?
      
    24 A. No.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    168
      
      
      
    1 Q. Do you remember your deposition in this

      
    2 case, ma'am?
      
    3 A. Yes.
       
    4 Q. You swore to tell the truth back then two
      
    5 weeks ago?
      
    6 A. Yes.
      
    7 MR. LaROSE: Page 138, Counsel.
      
    8 BY MR. LaROSE:
      
    9 Q. Ma'am, do you remember this question and
      
    10 giving this answer? Question, were you at all
      
    11 embarrassed or was anyone else that you talked
      
    12 to embarrassed that this had been brought to the
      
    13 Agency's attention by a reporter? Answer, that
      
    14 might be a good way to put it, yes.
      
    15 Do you remember being asked that
      
    16 question and giving that answer?
      
    17 A. Yes.
      
    18 Q. You included Mr. Purseglove in this 39(i)
      
    19 issue because he was the field section manager,
      
    20 correct?
      
    21 A. Yes.
      
    22 Q. Did he provide you with any information
      
    23 that you used in your evaluation or
      
    24 investigation?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    169
       
      

      
    1 A. Not that I can recall.
      
    2 Q. You didn't ask him to conduct any part of
      
    3 the evaluation or investigation, did you?
      
    4 A. No.
      
    5 Q. He was included to sit there, listen, and
      
    6 volunteer information if he had any, right?
      
    7 A. Yes.
      
    8 Q. Let's take a look at page 14 of the
      
    9 record, please. This is your e-mail of 3-30-01,
      
    10 8:08 a.m., to Mike Nechvatal, Scott Phillips, a
      
    11 carbon copy to John Kim, Chris Liebman, Paul
      
    12 Purseglove, Christine Roque, and Sue Schroeder,
      
    13 right?
      
    14 A. Yes.
      
    15 Q. Do you remember -- this is the first
      
    16 document that you generated after you talked to
      
    17 Mr. Pelkie, the reporter, regarding the
      
    18 conviction, right?
      
    19 A. Yes.
      
    20 Q. How many -- when you talked to Pelkie the
      
    21 ten or so times before 3-30-01, was it spread
      
    22 out from January all the way to March or were
      
    23 they kind of more clustered in January and then
      
    24 you didn't talk to him for a while?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    170

      
      
      
    1 A. They were clustered, but I would say I
      
    2 hadn't talked to him for a while.
      
    3 Q. Did he ever tell you anything about the
      
    4 upcoming April election of the mayor of the City
      
    5 of Morris? Did you guys talk about that at all?
      
    6 A. No.
      
    7 Q. He never mentioned it to you?
      
    8 A. Not that I can recall.
      
    9 Q. Did he explain to you what the purpose of
      
    10 him -- Strike that.
      
    11 When you talked to him ten or so
      
    12 times before March the 30th, would he always
      
    13 call you or sometime you would call him?
      
    14 A. Sometimes I would call him at the request
      
    15 of my public information officer.
      
    16 Q. But your recollection is that he always
      
    17 initiated the call and then sometimes you would
      
    18 call him back?
      
    19 A. Yes.
      
    20 Q. Did you ever just initiate a call like,
      
    21 hi, Chuck, how are you doing, let me tell you
      
    22 some more about the landfill?
      
    23 A. No.
      
    24 Q. So, again, the question is in the ten or
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      

      
    171
      
      
      
    1 more times that he talked to you or called you
      
    2 before 3-30-01, do you remember whether they
      
    3 were clustered early on or more spread out over
      
    4 the time period between January 2001 and March
      
    5 the 30th?
      
    6 A. They were mostly clustered.
      
    7 Q. Early on now?
      
    8 A. Yes.
      
    9 Q. Did he ever tell you what his purpose
      
    10 was?
      
    11 A. To write an article.
      
    12 Q. About what?
      
    13 A. About the appeal hearing and Community
       
    14 Landfill.
      
    15 Q. Okay. And the appeal hearing and
      
    16 Community Landfill?
      
    17 A. The appeal hearing for Community
      
    18 Landfill.
      
    19 Q. Okay. And was that the limitation of the
      
    20 ten or so conversations that you had with him
      
    21 before 3-30-01?
      
    22 A. Can you ask that question a different
      
    23 way?
      
    24 Q. Yeah, I can. I knew you were going to
      
      
      
    L.A. REPORTING (312) 419-9292
      

     
      
      
    172
      
      
      
    1 have a problem with that one.
      
    2 Was that the extent of the content
      
    3 of the conversations that you had with him,
      
    4 information about the permit hearing?
      
    5 A. And the landfill.
      
    6 Q. And the landfill itself?
      
    7 A. Yes.
      
    8 Q. You spent two hours with him the first
      
    9 time.
      
    10 Would you say that you spent maybe
      
    11 more than ten hours with him on the telephone?
      
    12 A. No.
      
    13 Q. More than five?
      
    14 A. I doubt it.
      
    15 Q. What part of your job is it that
      
    16 authorizes you to spend hours talking to the
      
    17 press about pending cases?
      
    18 A. That authorizes me?
      
    19 Q. Yeah.
      
    20 A. I have no specific authorization to speak
      
    21 to anyone.
      
    22 Q. Your recollection, referring back to page
      
    23 14 of the record, Exhibit 1, is that he called
      
    24 you the evening before this, right, late in the
      
      
      

    L.A. REPORTING (312) 419-9292
      
     
      
      
    173
      
      
      
    1 evening of the 29th of March?
      
    2 A. Yes.
      
    3 Q. Okay. As of 8:08 a.m. on 3-30-01, you're
      
    4 now in the investigative mode, right?
      
    5 A. Could you say that a different way?
       
    6 Q. No.
      
    7 As of 8:08 on 3-30-01, are you in
      
    8 the investigative mode, yes or no?
      
    9 A. No.
      
    10 Q. Ma'am, do you remember your deposition
      
    11 again?
      
    12 A. Yes.
      
    13 Q. You swore to tell the truth a couple of
      
    14 weeks ago?
      
    15 A. Yes.
      
    16 MR. LaROSE: Mr. Kim, page 148.
      
    17 BY MR. LaROSE:
      
    18 Q. At your deposition when you were under
      
    19 oath and you swore to tell the truth a couple of
      
    20 weeks ago, do you remember being asked this
      
    21 question and giving this answer?
      
    22 Question, not my question. Are you
      
    23 in the investigative mode as of 8:08 on 3-30-01,
      
    24 comma, correct? Answer, yes.
      

      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    174
      
      
      
    1 Do you remember being asked that
       
    2 question and giving that answer?
      
    3 A. Yes.
      
    4 Q. So do you want to change your answer here
      
    5 today?
      
    6 A. I believe that you were in a line of
      
    7 questioning and I had to give a yes or no answer
      
    8 to move on. I don't think I'd use the term
      
    9 investigative mode.
      
    10 Q. But you agreed with it under oath two
      
    11 weeks ago?
      
    12 A. I agreed with that line of questioning,
      
    13 yes.
      
    14 Q. From that time on, from 8:08 on 3-30-01,
      
    15 did you ever assign anyone from permits, legal,
      
    16 or FOS to look at the Agency's CLC file to see
      
    17 if there was any information on these
      
    18 convictions?
      
    19 A. Not specifically.
      
    20 Q. Not even generally, did you, ma'am?
      
    21 A. Generally, the reviewer is looking at the
      
    22 file when they are reviewing applications.
      
    23 Q. Okay. But you didn't assign anyone
      

    24 generally to look at the Agency's file to see if
       
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    175
      
      
      
    1 there was information on these convictions?
      
    2 A. Generally, a reviewer is looking at the
      
    3 permit file, and as part of that review, they
      
    4 are considering everything that's being
      
    5 considered under the application. We had
      
    6 Wells'd this issue. So it was then under
      
    7 evaluation.
      
    8 Q. Okay. Let's try it one more time.
      
    9 Yes or no, ma'am, did you assign
      
    10 anyone to look at the Agency's file to determine
      
    11 whether there was information in the file on
      
    12 these convictions, whether that would be
      
    13 generally or specifically, yes or no?
      
    14 A. Ask the question again.
      
    15 Q. Yes.
      
    16 From 3-31-01 at 8:08 a.m. and at any
      
    17 time thereafter, did you assign anyone from
      
    18 permits, legal, or FOS, whether generally or
      
    19 specifically, to look at the Agency's file on
       
    20 CLC to see if there was information on these
      
    21 convictions?
      
    22 A. Yes.
      

    23 Q. Back to the deposition, again, ma'am, two
      
    24 weeks ago under oath again, remember?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    176
      
      
      
    1 A. Yes.
      
    2 MR. LaROSE: Page 148, Mr. Kim, line 22.
      
    3 BY MR. LaROSE:
      
    4 Q. Do you remember being asked this question
      
    5 and giving this answer? From that time forward,
      
    6 did you, as part of your investigation, assign
      
    7 anybody, whether they be from legal, permits,
      
    8 FOS, or anybody, to look at the entirety of the
      
    9 Community Landfill file to see if there's any
      
    10 information in the file regarding these
      
    11 convictions? Answer, no.
      
    12 Do you remember being asked that
      
    13 question and giving that answer?
      
    14 A. Yes, and I believe that that was the
       
    15 answer I gave to the question before the one
      
    16 asking generally or specifically.
      
    17 MR. LaROSE: Objection, nonresponsive,
      
    18 and ask that the answer be stricken and that the
      
    19 witness be instructed to answer the question.
      
    20 HEARING OFFICER HALLORAN: Excuse me, Ms.
      
    21 Munie. Just answer the question, please.
      

    22 BY THE WITNESS:
      
    23 A. Can you give me the question again?
      
    24
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    177
      
      
      
    1 BY MR. LaROSE:
      
    2 Q. Do you remember being asked that question
      
    3 and giving that answer --
      
    4 A. Yes.
      
    5 Q. -- yes or no?
      
    6 A. Yes.
      
    7 Q. Okay. Do you believe that the more
      
    8 information you have in your possession with
      
    9 respect to your 39(i) investigation, the better?
      
    10 A. Yes.
       
    11 Q. Your entire evaluation in this case
      
    12 consisted of your May 9th memo, right?
      
    13 A. Did you ask if that's my entire
      
    14 evaluation?
      
    15 Q. No, no. I'm going to give you a list of
      
    16 things. Let's do it this way. I'm going to try
      
    17 and get what the entirety of your investigation
      
    18 was in this case, and part of that, at least,
      
    19 was your May 9th memo as it appears on pages 12
      
    20 and 13 of the record, correct?
      

    21 A. That was part of my evaluation, yes.
      
    22 Q. And part of your evaluation was also your
      
    23 March 30th e-mail as appears on page 14 of the
      
    24 record, correct?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    178
      
      
      
    1 A. Yes.
      
    2 Q. And you also wrote a memo on April the
      
    3 2nd regarding your investigation that didn't
      
    4 make it into the record the first time around,
      
    5 but that we located later, and now we're going
      
    6 to supplement the record with it.
      
    7 Do you remember that?
      
    8 A. Kind of.
      
    9 Q. Okay. Let me show it to you.
      
    10 MR. LaROSE: Mr. Halloran, I'm going to
      
    11 give you and the witness what we've marked as
      
    12 Exhibit 74? Do you have a copy, John?
      
    13 MR. KIM: Yeah.
      
    14 BY MR. LaROSE:
      
    15 Q. That's a memo that you wrote on April the
      
    16 2nd regarding your investigation, correct?
      
    17 A. Yes.
      
    18 Q. That wasn't included in the record, but
      
    19 it probably should have been, right?
      

    20 A. Yes.
      
    21 Q. Okay.
      
    22 MR. KIM: I agree with Mr. LaRose, I
      
    23 mean, it should have been part of the record.
      
    24 We can either do an oral motion or we can -- we
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    179
       
      
      
    1 won't object to its inclusion as evidence.
      
    2 Let's put it that way.
      
    3 HEARING OFFICER HALLORAN: Okay.
      
    4 MR. LaROSE: I think it's best to
      
    5 actually move it into the record in this case so
      
    6 that there's no question that it should have
      
    7 been part of the record, and I'm not claiming
      
    8 that this was secreted or anything like that. I
      
    9 just think that it was an oversight and we found
      
    10 it later and it should be --
      
    11 HEARING OFFICER HALLORAN: Being there's
      
    12 no objection, Exhibit 74 is admitted into the
      
    13 record.
      
    14 MR. LaROSE: Thank you.
      
    15 BY MR. LaROSE:
      
    16 Q. Then you looked at my -- in addition
      
    17 to -- right now, we've got the May 9th memo, the
      
    18 March 30th e-mail, the April 2nd memo. You
      

    19 looked at my Wells response, which appears on
      
    20 pages 15 and 16 of the record, correct?
      
    21 A. Yes.
      
    22 Q. You looked at the docket sheet in the
       
    23 criminal case, which appears on pages 18 through
      
    24 27 of the record, correct?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    180
      
      
      
    1 A. Yes.
      
    2 Q. You looked at the complaint, which
      
    3 appears on pages 28 through -- 28 through 42 of
      
    4 the record, correct?
      
    5 A. Correct.
      
    6 Q. And you looked at Christine's reviewer
      
    7 notes?
      
    8 A. Yes.
      
    9 Q. And that was -- those things that we just
      
    10 talked about was the entire extent of the
      
    11 information that you reviewed in your 39(i)
      
    12 investigation in this case?
      
    13 A. In my evaluation, yes.
      
    14 Q. Evaluation or investigation, right?
      
    15 A. It doesn't make sense.
      
    16 Q. Okay. I know it doesn't make sense to
      
    17 you, and sometimes this whole thing doesn't make
      

    18 sense to me, but let's see if we can clear it up
       
    19 for the record.
      
    20 You only evaluate the four corners
      
    21 of the application, correct?
      
    22 A. Correct.
      
    23 Q. So when you looked at all of these
      
    24 things, you were investigating under 39(i),
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    181
      
      
      
    1 correct?
      
    2 A. When I looked at them, I was evaluating.
      
    3 When I went out to search for them, I was
      
    4 investigating.
      
    5 Q. All right. So your entire 39(i)
      
    6 evaluation of this case consisted of the
      
    7 application and these things that we just talked
      
    8 about?
      
    9 A. Yes.
      
    10 Q. Okay. Did you ever talk to anybody from
      
    11 Community Landfill during your entire 39(i)
      
    12 investigation?
      
    13 A. No.
      
    14 Q. Anybody that represented them?
      
    15 A. Not that I can recall.
       
    16 Q. Okay. You didn't call Mr. McDermott or I
      

    17 to discuss this?
      
    18 A. Not specifically.
      
    19 Q. Not generally either, did you?
      
    20 A. Not on this issue.
      
    21 Q. Right.
      
    22 And no nobody that worked at
      
    23 Community Landfill, you didn't call and talk to
      
    24 them?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    182
      
      
      
    1 A. I didn't, no.
      
    2 Q. Mr. Pruim?
      
    3 A. No.
      
    4 Q. Nobody from the Agency did, did they?
      
    5 A. Not that I'm aware of.
      
    6 Q. Okay. You didn't look at the guilty plea
      
    7 agreement in conducting your evaluation, did
      
    8 you?
      
    9 A. If that's not one of the documents here,
      
    10 no.
      
    11 Q. Did you read the docket sheet, which
      
    12 appears -- it starts on page 22 of the record?
       
    13 That's one of the things that you evaluated in
      
    14 this case.
      
    15 A. It starts on page 18?
      

    16 Q. I'm sorry. It starts on page 18?
      
    17 A. Yes.
      
    18 Q. Did you read it in its entirety?
      
    19 A. Yes.
      
    20 Q. Take a look at page 22, the second to the
      
    21 last entry, docket entry number 14, 9-24-93,
      
    22 plea agreement as to Robert J. Pruim.
      
    23 Do you see that?
      
    24 A. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    183
      
      
      
    1 Q. Okay. Did you ever look at anything
      
    2 that's called a plea agreement?
      
    3 A. No.
      
    4 Q. Okay. Isn't it a fact, ma'am, that you
      
    5 thought what you were reviewing was the plea
      
    6 agreement when you looked at the complaint?
      
    7 A. Not necessarily.
      
    8 Q. Okay.
       
    9 MR. LaROSE: Page 91, Mr. Kim.
      
    10 BY MR. LaROSE:
      
    11 Q. Do you remember being asked this question
      
    12 and giving this answer under oath?
      
    13 Question, so when you thought you
      
    14 had the guilty plea in front of you, what you
      

    15 really had was the charging document and the
      
    16 Court's docket sheet, correct? Answer, yes.
      
    17 Do you remember under oath giving
      
    18 that answer to that question not just two weeks
      
    19 ago?
      
    20 A. Yes.
      
    21 Q. Okay. So did you think you had the
      
    22 guilty plea in front of you or didn't you?
      
    23 A. Yes.
      
    24 Q. Okay. You were mistaken, weren't you?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    184
      
      
      
    1 A. To what?
      
    2 Q. That you didn't have the guilty plea in
      
    3 front of you.
      
    4 You were mistaken in your belief
       
    5 that you had it in front of you, correct?
      
    6 A. Yes.
      
    7 Q. In retrospect, would you think that you
      
    8 should have looked at that or somebody from
      
    9 legal should have given it to you?
      
    10 A. Possibly.
      
    11 Q. Again, back to your deposition, ma'am.
      
    12 MR. LaROSE: Page 91, Mr. Kim.
      
    13 BY MR. LaROSE:
      

    14 Q. Do you remember being asked this question
      
    15 and giving this answer? Question, in
      
    16 retrospect, should you have looked at the guilty
      
    17 plea? Answer, in retrospect, I would have
      
    18 thought the lawyer would have sent me the guilty
      
    19 plea.
      
    20 Do you remember being asked that
      
    21 question and giving that answer?
      
    22 A. Yes.
      
    23 Q. Ms. Munie, flip to page 29 of the record,
      
    24 please.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    185
       
      
      
    1 Is this -- this is the complaint
      
    2 that you reviewed in making your decision
      
    3 against my client on the 39(i) issue?
      
    4 A. Yes.
      
    5 Q. Did subparagraph (f), as it appears on
      
    6 page 29, in any way factor into your decision as
      
    7 to whether this conviction was related to either
      
    8 waste management activities in Illinois or
      
    9 related to Community Landfill?
      
    10 A. Yes.
      
    11 Q. Do you know whether or not my client pled
      
    12 guilty to the facts contained in paragraph (f)
      

    13 as they appear on page 29?
      
    14 A. It's my understanding he was convicted of
      
    15 a felony in this case.
      
    16 Q. Okay. Not really the question. So let's
      
    17 try it again.
      
    18 Yes or no, do you know whether or
      
    19 not my client pled guilty to the facts contained
      
    20 in paragraph (f) on page two of the complaint?
      
    21 A. No.
      
    22 Q. Ma'am, I'm going to hand you what is a
       
    23 certified copy from the National Archives and
      
    24 Records Administration of the guilty plea
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    186
      
      
      
    1 agreement entered into by Bob Pruim on September
      
    2 the 24th, 1993.
      
    3 MR. KIM: I'm going to pose my objection
      
    4 now and get that in. This is one of the
      
    5 documents that was the subject of a motion to
      
    6 suppress. This was -- this document was not a
      
    7 part of the Agency's review. This was not --
      
    8 this was only in the Agency's possession when
      
    9 Mr. LaRose provided it to the Agency.
      
    10 It was, therefore, not a part of
      
    11 anyone's review during this -- of the decision
      

    12 at hand. So by clear Board precedent, by
      
    13 regulations, and statute, this document should
      
    14 not be included in the record and should not be
      
    15 an exhibit.
      
    16 MR. LaROSE: I have several responses to
       
    17 that. My not only right, but my obligation is
      
    18 to present evidence and cross-examination that
      
    19 would be -- that would rebut the reasons given
      
    20 by the Agency in denying the permit in this
      
    21 case.
      
    22 I direct your attention to page 13
      
    23 of the record where Ms. Munie writes, however,
      
    24 the 1993 guilty plea -- however, the 1993 guilty
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    187
      
      
      
    1 plea is directly related to bribing a city
      
    2 official in their capacity as it relates to
      
    3 waste management. Further, the company named in
      
    4 the complaint is related to CLC as stated in the
      
    5 complaint.
      
    6 Ms. Munie has also testified that
      
    7 she thought she had the guilty plea in front of
      
    8 her, but she didn't, but she definitely had in
      
    9 front of her the docket sheet on page 22 that
      
    10 specifically references the guilty plea.
       

    11 If she's going to make statements
      
    12 about the guilty plea in this case and she
      
    13 didn't even take the chance to look at it or was
      
    14 mistaken and she was looking at the wrong
      
    15 document, I think I should be able to show that
      
    16 the actual plea agreement in this case, A, had
      
    17 nothing to do with Community Landfill; B, had
      
    18 nothing to do with waste management activities
      
    19 in Illinois; and, C, had nothing to do with the
      
    20 environment.
      
    21 With that statement -- and this is
      
    22 really the point of order that we've made in Mr.
      
    23 Kim's motion to suppress. With that statement,
      
    24 I would like this document to be examined by Ms.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    188
      
      
      
    1 Munie, and I would like it to be accepted into
      
    2 the record.
      
    3 HEARING OFFICER HALLORAN: Mr. Kim,
      
    4 anything further?
       
    5 MR. KIM: Yes, just briefly. I think Mr.
      
    6 LaRose brought up a very good point, and that is
      
    7 that Ms. Munie stated it was her understanding
      
    8 that the docket sheet that is in the record is
      
    9 what she considered to be the guilty plea.
      

    10 Therefore, any reference she made in
      
    11 her memo goes to the document within the record,
      
    12 which is as it should be. Her memo references
      
    13 only the documentation that she looked. Now,
      
    14 Mr. LaRose is incorrect if he's saying he has an
      
    15 opportunity to rebut our decision based upon the
      
    16 introduction of evidence outside of the record.
      
    17 That, in fact, is not what the Board
      
    18 case law says. The Board case law is very clear
      
    19 and the Board regulations are very clear in
      
    20 stating that the Agency's decision should be
      
    21 reviewed by the Board based upon the information
      
    22 that it had at the time of the decision.
      
    23 The Agency did not have this guilty
      
    24 plea, and, therefore, it should not be
       
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    189
      
      
      
    1 considered. He can address was it the docket
      
    2 sheet. He can address was it the information he
      
    3 provided. He can make his comments as to those
      
    4 documents, but he cannot bring in new documents
      
    5 that we did not include as part of our review to
      
    6 somehow question our review that we never had in
      
    7 our possession to begin with.
      
    8 HEARING OFFICER HALLORAN: Although the
      

    9 plea agreement is quite possibly immaterial and
      
    10 irrelevant in and of itself because a felony is
      
    11 a felony under 39(i); however, I think it is
      
    12 relevant, and I think it is part and parcel of
      
    13 the guilty plea. It qualifies -- the plea
      
    14 agreement qualifies the guilty plea. So on that
      
    15 basis, I do find it relevant, and I will allow
      
    16 further testimony and allow Exhibit 18 to come
      
    17 into evidence.
      
    18 MR. KIM: Just for clarification, this
      
    19 has been admitted then?
      
    20 HEARING OFFICER HALLORAN: I believe Mr.
      
    21 LaRose offered it, and it has been admitted.
      
    22 MR. KIM: Okay. Thank you.
      
    23 BY MR. LaROSE:
      
    24 Q. Ma'am, would you take a look at page --
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    190
      
      
      
    1 the cover page is just a certification of this
      
    2 document.
      
    3 Would you take a look at numbered
      
    4 page two of this particular document?
      
    5 Subparagraph five, it says, in pleading guilty,
      
    6 defendant admits the following facts and that
      
    7 those --
      

    8 A. Wait a minute. I'm not at the same
      
    9 place. My paragraph five starts with
      
    10 defendant.
      
    11 Q. I'm sorry. I'm down to the next sentence
      
    12 in paragraph five. Sorry.
      
    13 A. Okay.
      
    14 Q. The second sentence of paragraph five on
      
    15 page two of Exhibit 18 states, in pleading
      
    16 guilty, defendant admits the following facts and
      
    17 that those facts establish his guilt beyond a
      
    18 reasonable doubt, and then it goes on on page
      
    19 two, page three, page four, page five, page six,
      
    20 and page seven down to numbered paragraph six
      
    21 reciting the facts that my client actually pled
      
    22 guilty to.
      
    23 MR. KIM: Objection. Is there a question
      
    24 there?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    191
      
      
      
    1 MR. LaROSE: I just want her to get with
      
    2 me.
      
    3 BY THE WITNESS:
      
    4 A. I'm up to page seven.
      
    5 BY MR. LaROSE:
      
    6 Q. Okay. So all of paragraph five recites
      

    7 the facts that my client pled guilty to.
      
    8 Could you review all of paragraph
       
    9 five, please, and tell me whether any of those
      
    10 facts talk about Community Landfill Company,
      
    11 Morris Community Landfill, waste management
      
    12 activities in Illinois, or the management of
      
    13 waste in Illinois?
      
    14 A. Again, you want me to just read paragraph
      
    15 five on page seven?
      
    16 Q. No, no, no. Paragraph five runs from
      
    17 page two to page seven.
      
    18 A. Okay.
      
    19 MR. KIM: Mr. Hearing Officer, can we
      
    20 take a five-minute break while she reads this?
      
    21 HEARING OFFICER HALLORAN: Sure. We're
      
    22 off the record?
      
    23 (Discussion had
      
    24 off the record.)
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    192
      
      
      
    1 (Break taken.)
      
    2 HEARING OFFICER HALLORAN: We're back on
      
    3 the record. It's approximately 2:05. Mr.
       
    4 LaRose.
      
    5 BY MR. LaROSE:
      

    6 Q. Ma'am, flip back to page 29 of the
      
    7 record, which is Exhibit 1, please.
      
    8 A. Yes.
      
    9 Q. You had told me earlier under
      
    10 cross-examination that you considered subsection
      
    11 -- subparagraph (f) as it appears on 29 as part
      
    12 of your evaluation and investigation in this
      
    13 case, correct?
      
    14 A. Yes.
      
    15 Q. And that's the paragraph or at least one
      
    16 of the paragraphs you used to make a connection
      
    17 between this conviction and both Community
      
    18 Landfill and waste activities in Illinois,
      
    19 correct?
      
    20 A. Yes.
      
    21 Q. Does the information contained in
      
    22 paragraph -- subparagraph (f) on page 29 appear
      
    23 anywhere in Exhibit 18?
      
    24 A. Excuse me?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    193
       
      
      
    1 Q. Does the same information that's
      
    2 contained on subparagraph (f) on page 29 of the
      
    3 record appear anywhere in the guilty plea
      
    4 agreement that's now been admitted as Exhibit
      

    5 18?
      
    6 A. I'm sorry. I've only gotten up to page
      
    7 five. You're going to have to give me a few
      
    8 minutes.
      
    9 Q. Okay.
      
    10 HEARING OFFICER HALLORAN: We're going to
      
    11 go off the record for a second while Ms. Munie
      
    12 reads approximately another two pages of Exhibit
      
    13 18.
      
    14 (Discussion had
      
    15 off the record.)
      
    16 MR. LaROSE: Mr. Kim and I have had a
      
    17 discussion off the record, and, Mr. Kim, I'll
      
    18 state the stipulation, and then you can tell me
      
    19 whether I've stated it correctly or not. The
      
    20 parties are -- have agreed to stipulate that
      
    21 none of the words -- none of the information
      
    22 contained on subparagraph (f) of the complaint
       
    23 as it appears on page 29 of the record is
      
    24 contained in paragraph -- is contained in
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    194
      
      
      
    1 Exhibit 18, correct?
      
    2 MR. KIM: Give me two seconds to confirm
      
    3 that. I was focusing primarily on paragraph
      

    4 five, but let me see.
      
    5 We would stipulate late to that.
      
    6 MR. LaROSE: And we've also agreed to
      
    7 stipulate, Mr. Halloran, that the words
      
    8 influence an employee with the City of Chicago
      
    9 in his responsibilities related to removal and
      
    10 disposal of waste do not appear in the plea
      
    11 agreement.
      
    12 HEARING OFFICER HALLORAN: Mr. Kim.
      
    13 MR. KIM: We would stipulate that those
      
    14 exact words in that phrase are not included in
      
    15 the plea agreement.
      
    16 MR. LaROSE: Or that the words bribing a
      
    17 city official in their official capacity as
      
    18 relates to waste management activities do not
      
    19 appear in the plea agreement.
      
    20 MR. KIM: Again, we would agree that
      
    21 those words in that phrase -- used as that
      
    22 phrase do not appear in the plea agreement.
      
    23 MR. LaROSE: And that the words Robert J.
      
    24 Pruim pled guilty to violations specifically
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    195
      
      
      
    1 referencing CLC as related to the hauling
      
    2 company do not appear in the plea agreement.
      

    3 MR. KIM: We would agree that those words
      
    4 as used in that specific phrase are not included
      
    5 in the plea agreement.
      
    6 MR. LaROSE: And, finally, that the
      
    7 phrase which is directly related to management
      
    8 of waste in Illinois is not contained anywhere
      
    9 in the plea agreement.
      
    10 MR. KIM: We would agree that that
       
    11 specific phrase is not included with those exact
      
    12 words in the plea agreement. Although, we would
      
    13 reserve the -- we do not extend that stipulation
      
    14 to mean that that concept is not included in the
      
    15 plea agreement.
      
    16 MR. LaROSE: I'm only asking them to
      
    17 stipulate that the words don't appear in there.
      
    18 MR. KIM: We stipulate to that.
      
    19 HEARING OFFICER HALLORAN: So
      
    20 stipulated.
      
    21 BY MR. LaROSE:
      
    22 Q. With that, Ms. Munie, I'm finished with
      
    23 Exhibit 18.
      
    24 Ma'am, you made the determination,
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    196
      
      
      
    1 did you not, that Mr. Pruim's conviction
      

    2 directly related to waste management in
      
    3 Illinois, did you not?
      
    4 A. Waste management activities.
      
    5 Q. Flip to page two of the record, please.
       
    6 Subparagraph number two, the actual phrase was
      
    7 which is directly related to the management of
      
    8 waste in Illinois, that's your phrase, correct?
      
    9 A. Yes.
      
    10 Q. That's the determination that you made,
      
    11 correct?
      
    12 A. Yes.
      
    13 Q. You can't recall anybody that was
      
    14 involved in the evaluation or investigation
      
    15 using those exact words, can you?
      
    16 A. No.
      
    17 Q. Mr. Pelkie didn't use those words to you,
      
    18 did he?
      
    19 A. No.
      
    20 Q. And none of the documents that we've read
      
    21 in this case -- that you've read in this case,
      
    22 the docket sheet or the complaint, used those
      
    23 exact words, did they?
      
    24 A. No.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    197
      
      
      

    1 Q. The term, quote, directly related to
       
    2 waste management in Illinois, end quote, was
      
    3 based on your interpretation of the common words
      
    4 that appeared in both the complaint and the
      
    5 docket sheet, correct?
      
    6 A. The words used in those, yes.
      
    7 Q. When I say common words, at our
      
    8 deposition, we were kind of making a distinction
      
    9 between the wherefores and the hereas as opposed
      
    10 to just the common -- commonly understood words,
      
    11 correct?
      
    12 A. Yes.
      
    13 Q. So when you said related to -- directly
      
    14 related to management of waste in Illinois, that
      
    15 was based on your understanding of the words or
      
    16 your interpretation of the words contained in
      
    17 the complaint and the docket sheet?
      
    18 A. Yes.
      
    19 Q. And when you said influence an employee
      
    20 with the City of Chicago in his responsibilities
      
    21 relating to removal and disposal of waste, that
      
    22 was based on your interpretation of the words
      
    23 contained in the complaint and the docket sheet,
       
    24 correct?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    198
      

      
      
    1 A. Yes.
      
    2 Q. Take a look at pages -- page 16 of the
      
    3 record, please. I stated in response to the
      
    4 Wells letter on page 16 of the record that the
      
    5 guilty plea and the conviction had absolutely no
      
    6 connection to Community Landfill, Community
      
    7 Landfill Company, Mr. Prime's status as an
      
    8 officer and shareholder of Community Landfill
      
    9 Company, the operation of Community Landfill, or
      
    10 other matters related to environmental
      
    11 concerns.
      
    12 Did you read that?
      
    13 A. Yes.
      
    14 Q. You didn't find that to be compelling,
      
    15 did you?
      
    16 A. No.
      
    17 Q. Did you find it to be accurate, yes or
      
    18 no?
      
    19 A. No. Wait a minute. What all sentences
       
    20 are you including in there?
      
    21 Q. Just the second sentence of the first
      
    22 full paragraph on page 16?
      
    23 A. Okay. Just the second sentence starting
      
    24 the guilty plea --
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      

    199
      
      
      
    1 Q. The guilty plea?
      
    2 A. -- and ending with or any other matters
      
    3 relating to environmental concerns?
      
    4 Q. Yes.
      
    5 Did you find that to be an accurate
      
    6 statement, yes or no?
      
    7 A. No.
      
    8 Q. Okay.
      
    9 MR. LaROSE: Pages 85 and 86, Mr. Kim.
      
    10 BY MR. LaROSE:
      
    11 Q. Back to your deposition,
      
    12 Ms. Munie, do you remember being asked this
      
    13 question and giving this answer? Well, forget
      
    14 about whether you really liked it or not, did
      
    15 you find it to be accurate? Answer, I believe
       
    16 it's your opinion that I find it accurate in
      
    17 your opinion.
      
    18 Do you remember being given that
      
    19 question and giving that answer at your
      
    20 deposition?
      
    21 A. Yes.
      
    22 Q. Did the complaint have anything to do
      
    23 with the environment?
      
    24 A. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     

      
      
    200
      
      
      
    1 Q. Back to your deposition, ma'am, page 87.
      
    2 Do you remember being asked this question and
      
    3 giving this answer? Question, did the complaint
      
    4 have anything to do with the environment,
      
    5 anything?
      
    6 MR. KIM: Objection. That is not what
      
    7 the question states.
      
    8 MR. LaROSE: You're exactly right. I'm
      
    9 sorry.
      
    10 BY MR. LaROSE:
      
    11 Q. Question, did the complaint say anything
       
    12 about the environment, question, anything?
      
    13 Answer, no.
      
    14 Do you remember being asked that
      
    15 question and giving that answer?
      
    16 A. Yes.
      
    17 Q. These were not environmental crimes, were
      
    18 they, ma'am?
      
    19 A. It's related to transfer stations, which
      
    20 is an environmental activity.
      
    21 Q. Yes or no, ma'am, were these
      
    22 environmental crimes?
      
    23 MR. KIM: Objection. What does the term
      
    24 environmental crimes mean?
      
      
      
    L.A. REPORTING (312) 419-9292

      
     
      
      
    201
      
      
      
    1 HEARING OFFICER HALLORAN: I'm a little
      
    2 confused myself, Mr. LaRose.
      
    3 MR. KIM: That's a vague term.
      
    4 MR. LaROSE: She wasn't confused when she
      
    5 answered the question at her deposition. I'm
      
    6 setting the table to ask her a question. Either
       
    7 she's going to say she agrees with it, disagrees
      
    8 with it, or can't answer it, and then we'll read
      
    9 her deposition.
      
    10 BY THE WITNESS:
      
    11 A. I can't answer it.
      
    12 BY MR. LaROSE:
      
    13 Q. Do you remember your deposition, ma'am?
      
    14 MR. LaROSE: Page 87, Mr. Kim.
      
    15 BY MR. LaROSE:
      
    16 Q. Question, did it mention illegal dumping
      
    17 or any waste, physical waste-related activities
      
    18 -- let me rephrase that. That's a bad
      
    19 question. These were not environmental crimes,
      
    20 correct? Answer, not that I'm aware of.
      
    21 Do you remember being asked that
      
    22 question and giving that answer?
      
    23 A. Yes.
      
    24 Q. Was the fact that the guilty plea was
      
      

      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    202
      
      
      
    1 eight years old -- Strike that.
      
    2 Did you factor into your evaluation
      
    3 or investigation the fact that the guilty plea
      
    4 was eight years old?
      
    5 A. Yes.
      
    6 Q. And one of the things that you considered
      
    7 when you consider an eight-year-old conviction
      
    8 was that it wasn't 20 years old, correct?
      
    9 A. Yes.
      
    10 Q. If it had been 20 years old, would it
      
    11 have been better for us?
      
    12 A. Yes.
      
    13 Q. If it was more than ten years old, would
      
    14 you have still denied the permit?
      
    15 A. I can't say.
      
    16 Q. If it had been more than 20 years old,
      
    17 would you still have denied the permit?
      
    18 A. I can't say.
      
    19 Q. Did you tell me in your deposition the
      
    20 answer to both of those questions possibly?
      
    21 A. Possibly.
      
    22 Q. Did you say possibly or are you saying
      
    23 you said possibly?
      
    24 Ma'am, is it possible that you would

      
       
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    203
      
      
      
    1 have still denied the permit if it was ten or 20
      
    2 years old?
      
    3 A. Yes.
      
    4 Q. You characterized the eight-year-old
      
    5 conviction as relatively recent, didn't you?
      
    6 A. Yes.
      
    7 Q. And, in your opinion, that was a negative
      
    8 in terms of your evaluation of this permit
      
    9 application, correct?
      
    10 A. Yes.
      
    11 Q. Did you do anything to verify whether or
      
    12 not Bob Pruim was the president of Community
      
    13 Landfill in 1993?
      
    14 A. No.
      
    15 Q. You didn't go through a checklist of the
      
    16 factors listed in Section 745.141 of the Board
      
    17 regulations, did you, ma'am, yes or no?
      
    18 A. No.
      
    19 Q. Do you know how much control Mr. Pruim
      
    20 exerted over the operations at Community
      
    21 Landfill at any time from 1993 to the present?
      
    22 A. No.
      
    23 Q. Did you know whether he worked at the

      
    24 site on a daily basis?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    204
      
      
      
    1 A. No.
      
    2 Q. Did you know whether he had ever been to
      
    3 the site?
      
    4 A. No.
      
    5 Q. Did you know that he wasn't the certified
      
    6 operator of the site?
      
    7 A. No.
      
    8 Q. Did you know that he wasn't the person
      
    9 that had submitted prior conduct certifications?
      
    10 A. No.
      
    11 MR. LaROSE: Can I have Exhibit 20,
      
    12 please?
      
    13 BY MR. LaROSE:
      
    14 Q. Have you read the ESG Watts decision from
      
    15 the Board regarding 39(i)?
      
    16 A. Yes.
      
    17 Q. Did you read it recently?
      
    18 A. No.
      
    19 Q. Did you read it since our deposition?
      
    20 A. No.
      
    21 Q. Do you know what it says about your
      
    22 obligation to consider mitigating factors with

      
    23 respect to Section 39(i) investigations?
      
    24 MR. KIM: Again, objection as to any
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    205
      
      
      
    1 legal conclusions having drawn from that case,
      
    2 any burdens that that case might impose upon the
      
    3 Agency. It calls for a legal conclusion.
      
    4 HEARING OFFICER HALLORAN: Mr. LaRose,
      
    5 could you rephrase that somehow?
      
    6 MR. LaROSE: Could you read that back and
      
    7 let me see what I said to see how I can rephrase
      
    8 it?
      
    9 HEARING OFFICER HALLORAN: Thank you, Mr.
      
    10 LaRose. I'll ask her if she can read it back.
      
    11 MR. LaROSE: Thank you.
      
    12 (Record read.)
       
    13 MR. LaROSE: I don't know how else --
      
    14 HEARING OFFICER HALLORAN: I think she
      
    15 can answer it based on her opinion.
      
    16 BY MR. LaROSE:
      
    17 Q. Ma'am, it's really a yes or a no
      
    18 question, and then we can get to your
      
    19 understanding after that.
      
    20 A. Do I understand my obligation? Is that
      
    21 what the question said?

      
    22 HEARING OFFICER HALLORAN: Mr. LaRose.
      
    23 MR. LaROSE: I thought I said it really
      
    24 good. I want to say it in the same way.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    206
      
      
      
    1 Geanna, please. Mr. Hearing Officer.
      
    2 (Record read.)
      
    3 BY THE WITNESS:
      
    4 A. I don't know the specific words in the
      
    5 case, so no.
      
    6 MR. LaROSE: I'm going to hand the
      
    7 witness Exhibit 20, Mr. Halloran.
       
    8 BY MR. LaROSE:
      
    9 Q. Ms. Munie, Exhibit 20 contains some
      
    10 documents regarding prior conduct certifications
      
    11 submitted by my -- by representatives of my
      
    12 client. Look at page -- the first page of that,
      
    13 which is a March 16th letter under your
      
    14 authority, if not your signature, correct?
      
    15 A. Yes.
      
    16 Q. Okay. You didn't actually sign that?
      
    17 A. No.
      
    18 Q. Somebody did on your behalf?
      
    19 A. Yes.
      
    20 Q. And you delegated the authority to them

      
    21 to sign that?
      
    22 A. That authority was delegated to them,
      
    23 yes.
      
    24 Q. And this says that Mr. Pelnarsh is the
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    207
      
      
      
    1 one that submitted the prior conduct
      
    2 certification, correct?
      
    3 A. Yes.
       
    4 Q. And the second page of that is the same
      
    5 type of letter dated about a year earlier on
      
    6 March 21st, 2000, where, again, Mr. Pelnarsh had
      
    7 submitted and the Agency had accepted the prior
      
    8 conduct certification for Community Landfill,
      
    9 correct?
      
    10 A. Correct.
      
    11 MR. LaROSE: With that, Mr. Hearing
      
    12 Officer, I move for the admission of Exhibit 20
      
    13 into the record.
      
    14 MR. KIM: Objection. I fail to see any
      
    15 relevance between a prior conduct certification
      
    16 submitted by Mr. Pelnarsh to any of the issues
      
    17 presented here. Mr. Pelnarsh's qualifications
      
    18 were not a part of the denial that was issued
      
    19 here. It was never contended that they've been,

      
    20 and this document has no relevance to the case
      
    21 at hand.
      
    22 HEARING OFFICER HALLORAN: Mr. LaRose,
      
    23 anything further?
      
    24 MR. LaROSE: The ESG Watts decision in
      
      
      
    L.A. REPORTING (312) 419-9292
       
     
      
      
    208
      
      
      
    1 this case specifically --
      
    2 MR. KIM: Just as a clarification, when
      
    3 you say the ESG Watts decision, which decision
      
    4 are you referring to because there are several
      
    5 decisions? Are you referring generically to all
      
    6 case law surrounding that?
      
    7 MR. LaROSE: No. No, I'm not. I'm
      
    8 referring to the Pollution Control Board's
      
    9 decision dated March 21st, 1996, cited here as
      
    10 -- in cases PCB 94-243, 94-306, 94-307, 94-308,
      
    11 94-309 95-133, 95-134 all consolidated cited as
      
    12 1996 WL 154102.
      
    13 MR. KIM: Thank you.
      
    14 MR. LaROSE: Mr. Hearing Officer, this
      
    15 case specifically instructed the Agency to
      
    16 consider factors set forth in 745.141, prior
      
    17 conduct certification law, in making its
      
    18 analysis of the -- in making its analysis of the

      
    19 Section 39(i).
      
    20 I direct your attention to page 35
       
    21 of that opinion. The Agency may in its
      
    22 discretion grant prior conduct certification if
      
    23 mitigating factors such as certification should
      
    24 issue. Mitigating factors should include, and
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    209
      
      
      
    1 then it talks about, one, the severity of the
      
    2 misconduct; two, how recently the misconduct
      
    3 took place, and, three, the degree of control
      
    4 exerted over waste disposal operations at the
      
    5 site by the applicant at the time the misconduct
      
    6 described in Section A3 was committed.
      
    7 MR. KIM: I'm sorry. When you say page
      
    8 35, the numbering may be different.
      
    9 MR. LaROSE: I'm sorry. Do you have
      
    10 Exhibit 67, John? That will be the easiest
      
    11 way.
      
    12 HEARING OFFICER HALLORAN: Off the
      
    13 record.
      
    14 (Discussion had
      
    15 off the record.)
       
    16 MR. LaROSE: Mr. Halloran, I'm going to
      
    17 hand you a copy of Exhibit 67 and Exhibit 69 so

      
    18 that you have it in front of you. Sixty-nine is
      
    19 the Appellate Court's decision in ESG Watts.
      
    20 Mr. Halloran, up in the right-hand
      
    21 corner on Exhibit 67, you'll see some
      
    22 pagination, and I'm looking at page number 35 up
      
    23 in the right-hand corner. This is where the
      
    24 Board is making an analogy because of the fact
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    210
      
      
      
    1 that there are no written rules or regulations
      
    2 making an analogy to the prior conduct
      
    3 certification and instructing the Agency to
      
    4 consider mitigating factors with respect to
      
    5 that.
      
    6 That decision was affirmed by the
      
    7 Appellate Court in Exhibit No. 69, the ESG Watts
      
    8 versus Illinois Pollution Control Board and
      
    9 Illinois Environmental Protection Agency, 767
       
    10 N.E. 2d, 229, dated February 6th, 1997.
      
    11 So the fact that Mr. Pruim was not
      
    12 the certified operator under the very law that
      
    13 the Board instructed the Agency to consider is
      
    14 certainly relevant to the issue of whether or
      
    15 not Mr. Pruim exerted any control over the waste
      
    16 disposal facility. With that, I would ask that

      
    17 Exhibit No. 20 be admitted.
      
    18 MR. KIM: Well, in response, the case
      
    19 does not say that. The case does not say that
      
    20 the Board has determined that the Agency should
      
    21 look at that. As a matter of fact, what the
      
    22 case says is, and I'm reading from what I
      
    23 believe is the paginated page 14 of the opinion,
      
    24 and it says there are no administrative rules by
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    211
      
      
      
    1 the Agency to govern the Agency's process in the
      
    2 solid waste disposal permit application or to
       
    3 govern the mandatory Section 31(i) -- I'm sorry
      
    4 39(i) evaluation, and since the Agency has not
      
    5 proposed rules to the Board for adoption, we
      
    6 find it helpful to examine other relevant
      
    7 portions of the Act and Board regulations in
      
    8 analyzing this case.
      
    9 Then they go on to say that the
      
    10 Board has simply stated that the Appellate
      
    11 Court, without reading into that, also notes
      
    12 that the Board or the Agency did not adopt
      
    13 procedures and neither did the Board nor the
      
    14 Appellate Court have any fault in the fact that
      
    15 there were no regulations promulgated. There's

      
    16 no statutory requirement to do that.
      
    17 All the Board said was for their
      
    18 purposes in analyzing our decision, they find it
      
    19 helpful to do that. That does not impose any
      
    20 burden upon us to review or to impose prior
      
    21 conduct certification review under a 39(i)
      
    22 process. The case clearly does not say that.
      
    23 If that's the only grounds for including these
       
    24 prior conduct certification documents, then
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    212
      
      
      
    1 that's all the more reason -- there's no reason
      
    2 for those to be in here.
      
    3 The Board's opinion does not impose
      
    4 that burden upon us. The Board simply states
      
    5 they found it helpful to look at those rules.
      
    6 That does not mean that that's something that
      
    7 we're subject to. As a matter of fact, there's
      
    8 no specific direction in that opinion in any
      
    9 way, shape, or form that directs the Agency to
      
    10 use those guidelines.
      
    11 MR. LaROSE: And whether or not it's a
      
    12 specific directive to do it, how can we say that
      
    13 if the Board finds it helpful to analyze that
      
    14 criteria to determine whether 39(i) was

      
    15 appropriately applied in this case, then the
      
    16 prior conduct certifications aren't relevant to
      
    17 the Board's review.
       
    18 I quote from page eight of Exhibit
      
    19 69, which is the Third District Appellate
      
    20 Court's decision affirming the Board's decision,
      
    21 however -- about halfway down on the first
      
    22 paragraph on the right-hand side of the page,
      
    23 the Court notes, however, Section 745.141(b)
      
    24 permits certain mitigating factors to be taken
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    213
      
      
      
    1 into account when enforcing Section 22.5.
      
    2 Specifically, the Agency may consider the
      
    3 severity of the conduct, how recently the event
      
    4 took place, and the degree of control exerted
      
    5 over the disposal operations by the applicant.
      
    6 If they didn't do that in this case,
      
    7 I don't think they did their job, and if they
      
    8 didn't do that in this case, I think the Board
      
    9 should know about it. That's why I think the
      
    10 fact that Mr. Pelnarsh was the person that was
      
    11 certified as the operator of this site is
      
    12 important to the Board's consideration of this
      
    13 issue.

      
    14 MR. KIM: I'm going to grant Mr. Kim's
      
    15 objection. I'll sustain his objection. Excuse
      
    16 me. I will deny entry of Exhibit No. 20 into
      
    17 evidence, Mr. LaRose.
      
    18 MR. LaROSE: I would offer 20 then as an
      
    19 offer of proof.
      
    20 HEARING OFFICER HALLORAN: Then you've
      
    21 pretty much given your offer of proof.
      
    22 MR. LaROSE: So it's done.
      
    23 HEARING OFFICER HALLORAN: So granted.
      
    24 Exhibit No. 20 is admitted as only an offer of
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    214
      
      
      
    1 proof.
      
    2 MR. LaROSE: Thank you.
      
    3 BY MR. LaROSE:
      
    4 Q. Under this permit application, if the
      
    5 decision is not reversed, there's not going to
      
    6 be any more waste put into this landfill, is
      
    7 there?
      
    8 A. Excuse me?
      
    9 Q. Under this particular permit application,
      
    10 if this decision is not reversed, there's not
      
    11 going to be any more waste put into this
      
    12 landfill, correct?

      
    13 A. I can't answer that question.
      
    14 Q. Did you answer that question at your
      
    15 deposition, ma'am?
      
    16 A. Not that I can recall.
      
    17 Q. Okay.
      
    18 MR. LaROSE: Page 101, Mr. Kim.
      
    19 BY MR. LaROSE:
      
    20 Q. Do you remember being asked these
      
    21 questions and giving these answers? Question,
      
    22 would you agree with me that as a result of your
      
    23 action, if it's not overturned, there's not
      
    24 going to be any more waste put into this
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    215
      
      
      
    1 facility? Answer, no. Question, why not? This
       
    2 -- under this permit, under this application, I
      
    3 agree with that statement.
      
    4 Do you remember being asked those
      
    5 questions and giving those answers?
      
    6 A. Yes.
      
    7 Q. Okay. Was that true when you said that
      
    8 and what you just told me now untrue?
      
    9 A. No.
      
    10 Q. They were both true even though you gave
      
    11 me completely different answers?

      
    12 A. You gave me completely different
      
    13 questions.
      
    14 Q. Did the permit denial have anything to do
      
    15 with whether the cell was constructed properly
      
    16 or not?
      
    17 A. Not that I know of.
      
    18 Q. As far as you know, the cell was
      
    19 constructed properly and in accordance with the
      
    20 plans and specifications that was contained in
      
    21 the permit application, correct?
      
    22 A. Yes.
      
    23 Q. When you granted the SIGMOD in August of
      
    24 2000, was it your understanding that the
       
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    216
      
      
      
    1 facility had no capacity left?
      
    2 A. It's possible.
      
    3 Q. It's possible that that was your
      
    4 understanding?
      
    5 A. No. It's possible it had no capacity
      
    6 left.
      
    7 Q. Okay. Ma'am, yes or no, when you granted
      
    8 the SIGMOD in August of 2000, was it your
      
    9 understanding that the facility had no capacity
      
    10 left?

      
    11 A. I can't answer that question.
      
    12 MR. LaROSE: Page 114 of the deposition,
      
    13 Mr. Kim.
      
    14 BY MR. LaROSE:
      
    15 Q. Ma'am, do you remember being asked this
      
    16 question and giving this answer? Joyce, when
      
    17 you granted the permit in 2000, August of 2000,
      
    18 the big SIGMODs LFM permits, did you contemplate
      
    19 that this facility would be allowed to accept
      
    20 waste pursuant to the permit application that
       
    21 they filed and the permit that you issued?
      
    22 Answer, actually it was my
      
    23 understanding that they had no capacity left,
      
    24 but I did not do a specific review on that, but
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    217
      
      
      
    1 that was not -- it was not a question to me.
      
    2 Do you remember being asked that
      
    3 question and giving that answer?
      
    4 A. Yes.
      
    5 Q. Was it the fact that this permit sought
      
    6 the disposition of waste that caused you to deny
      
    7 the May 11th permit, yes or no?
      
    8 A. No.
      
    9 MR. LaROSE: Page 122 of the deposition,

      
    10 Mr. Kim.
      
    11 BY MR. LaROSE:
      
    12 Q. Do you remember being asked these
      
    13 questions under oath a couple weeks ago, this
      
    14 question and giving this answer? Okay. So --
      
    15 so the -- so it's really the further disposition
       
    16 of waste in the site that you targeted when you
      
    17 used your discretion to deny the May 11th
      
    18 permit? Answer, I don't know if you could use
      
    19 the term targeted, but that was the reason.
      
    20 Do you remember being asked that
      
    21 question and giving that answer?
      
    22 A. Yes.
      
    23 Q. Did you ever do anything to investigate
      
    24 Ed Prime's conviction?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    218
      
      
      
    1 A. No.
      
    2 Q. If the information that Mr. Pelkie gave
      
    3 to you came to you from any source, would you
      
    4 have conducted an evaluation?
      
    5 A. Yes.
      
    6 Q. If it came to you from Warren Weritz or
      
    7 Sally Springer or Cliff Gould or John Taylor,
      
    8 Kyle Davis, Jack Burds, or Mark Retzlaff, would

      
    9 you have conducted an investigation?
      
    10 A. His name is Jack Burds, but yes.
       
    11 Q. Was it important to you if anyone from
      
    12 the field office had any prior knowledge of this
      
    13 conviction?
      
    14 A. No.
      
    15 Q. Did you know that we were running out of
      
    16 space --
      
    17 A. Yes.
      
    18 Q. -- at the landfill?
      
    19 A. Yes.
      
    20 MR. LaROSE: Pages 150 and 151, Mr. Kim.
      
    21 BY MR. LaROSE:
      
    22 Q. At your deposition, ma'am, do you
      
    23 remember being asked this question and giving
      
    24 this answer? Question, did you know that they
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    219
      
      
      
    1 were running out of space at the landfill?
      
    2 Answer, no.
      
    3 Do you recall being asked that
      
    4 question and giving that answer?
      
    5 A. Yes.
      
    6 Q. Do you care?
      
    7 A. No.

      
    8 Q. That's the right answer.
      
    9 MR. KIM: She had a 50/50 shot.
      
    10 MR. LaROSE: She did.
      
    11 BY MR. LaROSE:
      
    12 Q. When you use your discretion under
      
    13 Section 39(i), ma'am, are you required to take
      
    14 into consideration any mitigating factors?
      
    15 A. No.
      
    16 Q. It's the required part that you're having
      
    17 a problem with, aren't you?
      
    18 A. Yes.
      
    19 Q. May you consider mitigating factors?
      
    20 A. Yes.
      
    21 Q. In the sound and equitable exercise of
      
    22 your discretion, should you?
      
    23 A. Yes.
      
    24 Q. One mitigating factor would be what the
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    220
      
      
      
    1 felony conviction actually is for, correct?
      
    2 A. Yes.
      
    3 Q. Another mitigating factor would be how
      
    4 recently it took place, correct?
       
    5 A. Yes.
      
    6 Q. Another mitigating factor would be the

      
    7 degree of control exerted over the waste
      
    8 disposal operation by the applicant?
      
    9 A. Yes.
      
    10 Q. Did you consider these factors in this
      
    11 case?
      
    12 A. Yes.
      
    13 Q. Do you know what type of waste went into
      
    14 CLC at any time prior to your May 11th
      
    15 application --
      
    16 A. No.
      
    17 Q. -- excuse me, denial?
      
    18 A. No.
      
    19 Q. And prior to May 11th, did you know
      
    20 whether any of it came from the City of Chicago?
      
    21 A. No.
      
    22 Q. Let's look at page 53 of the record,
      
    23 please, ma'am. That's the hi, Joyce, e-mail
      
    24 from Mark Retzlaff dated 12-7-01.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    221
      
      
      
    1 Does he e-mail you often?
       
    2 A. Not that I'm aware of.
      
    3 Q. Is this the first time that it occurred?
      
    4 A. Possibly.
      
    5 Q. Did you think this was appropriate?

      
    6 A. I think it was his observations of the
      
    7 site and he's an inspector.
      
    8 Q. Did you think it was appropriate for him
      
    9 to be e-mailing you with this information?
      
    10 A. Yes.
      
    11 Q. Did you read the 12-5 inspection report?
      
    12 A. I don't recall specifically reading it,
      
    13 no.
      
    14 Q. Is it included in the record in this
      
    15 case?
      
    16 A. Yes.
      
    17 Q. Where is it included in the record?
      
    18 A. It starts two pages back from where you
      
    19 are. Page 55.
      
    20 Q. Take a look, again, ma'am. That's not
      
    21 the 12-5 inspection report. That's the March
      
    22 7th inspection report.
      
    23 A. Sorry.
      
    24 Q. The 12-5 inspection report, is it
      
      
       
    L.A. REPORTING (312) 419-9292
      
     
      
      
    222
      
      
      
    1 contained in the record?
      
    2 MR. KIM: To save time, we would
      
    3 stipulate that it's not.
      
    4 MR. LaROSE: I would accept that

      
    5 stipulation, Mr. Hearing Officer.
      
    6 HEARING OFFICER HALLORAN: I'll accept
      
    7 it.
      
    8 BY MR. LaROSE:
      
    9 Q. Did you respond to Mr. Retzlaff's memo?
      
    10 A. Not that I recall.
      
    11 Q. Do you remember either writing him or
      
    12 calling him with respect to this memo?
      
    13 A. No.
      
    14 Q. Do you remember ever telling him that you
      
    15 didn't think it was appropriate for him to be
      
    16 sending you memos expressing his opinions on
      
    17 pending permit applications?
      
    18 A. No.
      
    19 Q. You don't think that's inappropriate, do
      
    20 you?
      
    21 A. Can you ask that again?
       
    22 Q. Do you think it was inappropriate for him
      
    23 to have sent you a memo expressing his opinions
      
    24 on pending permit applications?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    223
      
      
      
    1 A. No.
      
    2 Q. How many field operation inspectors have
      
    3 e-mailed you about pending permit applications

      
    4 other than Mr. Retzlaff?
      
    5 A. Probably all of them.
      
    6 Q. So this is a common practice that the
      
    7 field inspectors would e-mail the permit manager
      
    8 about pending permit applications?
      
    9 A. Yes.
      
    10 Q. Would it be equally common that they
      
    11 would -- that it would be appropriate for them
      
    12 to put into these e-mails their opinions
      
    13 regarding the permit applications?
      
    14 A. I'm sorry. I heard double negatives in
      
    15 there.
      
    16 Q. I'm sure you did. Let's try it again.
       
    17 Would it be -- Strike that. In the
      
    18 e-mails that you received from the other
      
    19 inspectors, do any of them -- have any of them
      
    20 expressed their opinions as to the pending
      
    21 permit applications?
      
    22 A. Yes.
      
    23 Q. And that's okay with you?
      
    24 A. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    224
      
      
      
    1 MR. LaROSE: Mr. Halloran, I'm going to
      
    2 skip forward a section, and then the last

      
    3 section that I have relates to the June 29th
      
    4 permit. Maybe we can just stop and make that
      
    5 the offer of -- the offer of proof. Okay?
      
    6 HEARING OFFICER HALLORAN: Okay.
      
    7 MR. LaROSE: I'm going to go ahead to
      
    8 another section. Then I'll come back to that.
      
    9 HEARING OFFICER HALLORAN: Is that fine
      
    10 with you, Mr. Kim?
      
    11 MR. KIM: That's fine.
       
    12 BY MR. LaROSE:
      
    13 Q. The other reason for the denial other
      
    14 than the 39(i) was the financial assurance
      
    15 question, correct?
      
    16 A. Yes.
      
    17 Q. You relied on Blake Harris'
      
    18 recommendation regarding the financial
      
    19 assurance, yes or no?
      
    20 A. Yes.
      
    21 Q. The August 2000 -- in August 2000,
      
    22 another accountant from the Agency told you that
      
    23 the Frontier bonds complied with the
      
    24 regulations, correct?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    225
      
      
      
    1 A. No.

      
    2 Q. Did he write you that?
      
    3 A. That it complied -- that the Frontier
      
    4 bonds complied with the regulation?
      
    5 Q. Yes.
      
    6 A. I don't think he wrote that.
      
    7 MR. LaROSE: Page 116, Mr. Kim.
      
    8 BY MR. LaROSE:
       
    9 Q. At your deposition where you were under
      
    10 oath a couple of weeks ago, Ms. Munie, do you
      
    11 remember being asked this question and giving
      
    12 this answer? Question, and did your accountant
      
    13 tell you, in fact, that the bonds that were
      
    14 submitted did comply with the accurate rules,
      
    15 the regulations, and were in the proper
      
    16 amounts? Answer, yes.
      
    17 Do you remember being asked that
      
    18 question and giving that answer?
      
    19 A. Yes.
      
    20 Q. Okay. You relied on that information
      
    21 from Mr. Taylor in August 2000, correct?
      
    22 A. Yes.
      
    23 Q. When Mr. Harris gave you different
      
    24 information about the Frontier bonds in May of
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    226
      
      

      
    1 2000, did you assume that the difference in his
      
    2 recommendation between the recommendation made
      
    3 by Mr. Taylor in August of 2000 was because
      
    4 something had occurred during the passage of
      
    5 time?
      
    6 A. Yes.
      
    7 Q. So you thought that there was a change in
      
    8 circumstances regarding the Frontier bonds from
      
    9 August 2000 when
      
    10 Mr. Taylor told you they were okay to May of
      
    11 2001 when Mr. Harris told you that they weren't?
      
    12 A. It's possible, yes.
      
    13 MR. LaROSE: Mr. Halloran, at this point,
      
    14 I'm going to go into the June 29th permit and
      
    15 would use the next three exhibits and this
      
    16 examination as an offer of proof.
      
    17 HEARING OFFICER HALLORAN: So noted.
      
    18 Thank you.
      
    19 MR. KIM: Are you done then questioning
      
    20 on all information that would be outside -- that
      
    21 would be -- you know what I'm saying, not
      
    22 included in an offer of proof?
      
    23 MR. LaROSE: That is correct, subject to
      
    24 re-examination.
      
      
      
    L.A. REPORTING (312) 419-9292
       
     
      
      
    227

      
      
      
    1 MR. KIM: Sure.
      
    2 MR. LaROSE: I'm going to hand the
      
    3 witness what's been previously marked as
      
    4 Exhibits 37 and 73. I'll hand you a copy as
      
    5 well.
      
    6 HEARING OFFICER HALLORAN: Thanks.
      
    7 MR. KIM: Can you wait just a second?
      
    8 MR. LaROSE: No problem. Take your
      
    9 time. It's 37 and 73.
      
    10 BY MR. LaROSE:
      
    11 Q. Ma'am, first, I want to direct your
      
    12 attention to -- back to page 12 of the record in
      
    13 this case. Your memo references three permit
      
    14 log numbers, correct?
      
    15 A. Yes.
      
    16 Q. The 2000-438 was the permit log in this
      
    17 particular case, correct?
      
    18 A. Yes.
      
    19 Q. And the 2001-012 and 2001-051 were two
      
    20 other permit applications, right?
      
    21 A. Yes.
      
    22 Q. Okay. Directing your attention to Group
       
    23 Exhibit 37, please, the first two pages of that
      
    24 are a cover letter with a permit application
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      

      
    228
      
      
      
    1 dated February 1, 2001. The next two pages are
      
    2 the LPCPA-1s, and the rest of it are the permits
      
    3 -- two permits or one -- is the permit that you
      
    4 issued for parcel A on June 29th, 2001, correct?
      
    5 A. Yes.
      
    6 Q. And that is log number 2001-051, which is
      
    7 referenced at least as one of the log numbers in
      
    8 your May 9th memo as it appears on page 12 of
      
    9 Exhibit 1?
      
    10 A. Yes.
      
    11 Q. This permit was for the acceptance
      
    12 approving the construction and operation of gas
      
    13 perimeter probes at the landfill, correct?
      
    14 A. Yes.
      
    15 Q. Okay. And do you know whether you
      
    16 evaluated the same information for the June 29th
      
    17 permit as for the May 11th denial as regards to
      
    18 Section 39(i)?
      
    19 A. I'm sorry. You lost me in that question.
      
    20 Q. Okay. Did you conduct the same 39(i)
      
    21 investigation for the June 29th permit as for
      
    22 the May 11th denial?
      
    23 A. Yes.
      
    24 Q. Okay. The June 29th permit was granted;
      
      
      
    L.A. REPORTING (312) 419-9292
      

     
      
      
    229
      
      
      
    1 the May 11th was denied, correct?
      
    2 A. Yes.
      
    3 Q. Take a look now at Group Exhibit 73,
      
    4 please. Group Exhibit 73 are excerpts that we
      
    5 took out of the 2001-051 permit file when we
      
    6 were down at the Agency a week or so ago taking
      
    7 depositions.
      
    8 The first two pages of that contain
      
    9 your June -- your May 9th memo, correct?
      
    10 A. Yes.
      
    11 Q. So this permit, the one for the gas
      
    12 probes, was under consideration prior to May the
      
    13 11th, correct?
      
    14 A. The application was.
      
    15 Q. That's correct?
      
    16 A. Yes.
      
    17 Q. The second page is some exempt document
      
    18 that I'm sure that's the smoking gun to nail
      
    19 this case down, but we didn't get it. I'm just
      
    20 kidding. The next two pages are my same
      
    21 response to the Wells letter dated April 9th,
      
    22 correct?
      
    23 A. Yes.
      
    24 Q. The next pages are the docket sheet in
      
      
      

    L.A. REPORTING (312) 419-9292
      
     
      
      
    230
      
      
      
    1 the criminal case, the same one that appeared in
      
    2 this file, correct?
      
    3 A. Yes.
      
    4 Q. And the next pages are Christine Roque's
      
    5 reviewer notes, correct?
      
    6 A. Yes.
      
    7 Q. The financial assurance, as far as you
      
    8 were aware, was exactly the same for the May
      
    9 11th denial as it was for the June 29th grant
      
    10 for the permit?
      
    11 A. I would assume.
      
    12 Q. You don't know any differently that it
      
    13 wasn't?
      
    14 A. Correct.
      
    15 Q. If you look at the LPCPA-1 as contained
      
    16 in Exhibit 37, Bob Pruim was still the president
      
    17 of Community Landfill under this application?
      
    18 A. Yes.
      
    19 Q. You used your discretion in the June 29th
      
    20 application to grant the permit even though Bob
      
    21 Pruim was still the president, the information
      
    22 on the conviction was exactly the same, and, to
      
    23 the best of your knowledge, the financial
      
    24 assurance bonding was exactly the same, correct?
      

      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    231
      
      
      
    1 A. Yes.
      
    2 Q. But you came to a different result,
       
    3 correct?
      
    4 A. Yes.
      
    5 Q. And the difference in the result and the
      
    6 using of your discretion was one permit was to
      
    7 put waste into the landfill and the other permit
      
    8 was to operate a gas monitoring system, correct?
      
    9 A. Yes.
      
    10 MR. LaROSE: That's all with the offer of
      
    11 proof, and with that, I would seek the admission
      
    12 of Exhibits 37 and 73 into the record.
      
    13 HEARING OFFICER HALLORAN: Mr. Kim.
      
    14 MR. KIM: Again, same objection. These
      
    15 relate to a decision that took place well after
      
    16 the permit decision at issue. It postdates the
      
    17 decision, and by Board regulation and statute,
      
    18 it should not be included in the record in this
      
    19 case.
      
    20 HEARING OFFICER HALLORAN: Anything
      
    21 further, Mr. LaRose?
      
    22 MR. LaROSE: I don't think so, Mr.
      
    23 Halloran. I just think that, just briefly, they
      

    24 examined the same information at the exact same
       
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    232
      
      
      
    1 time and within a month of each other came to
      
    2 two different conclusions. I think that the
      
    3 implication is clear.
      
    4 Mr. Pruim is a convicted felon and
      
    5 the Frontier Insurance bonds are somehow good
      
    6 enough for them to run and pay their money for
      
    7 pollution control devices at the facility, but
      
    8 not good enough to put waste into the facility.
      
    9 I think this exposes the fatal flaws that the
      
    10 Agency has committed in this case, and I think
      
    11 that the Board should consider it.
      
    12 MR. KIM: There is no provision that
      
    13 allows just close in time or it's very close in
      
    14 sequence to the decision that is under appeal.
      
    15 I mean, it postdates the decision. There's a
      
    16 ream of case law that says that that kind of
      
    17 thing should not be considered.
      
    18 HEARING OFFICER HALLORAN: I think I'm
       
    19 going to sustain Mr. Kim's objection, and at
      
    20 this point, I'm relying on case law that it was
      
    21 not part of the record before the Agency at the
      
    22 time. However, I will accept Exhibit 73 and
      

    23 Exhibit 37 as your offer of proof, Mr. LaRose.
      
    24 MR. LaROSE: Mr. Halloran, just a point
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    233
      
      
      
    1 of order. I think we're really, I think, done
      
    2 with Ms. Munie on this issue no matter what you
      
    3 rule, but I've yet to get a ruling on the issue
      
    4 of whether I can have a separate hearing under
      
    5 this -- under the provisions of 105.214. I
      
    6 don't know that I need that ruling right now
      
    7 because I would use the same offer of proof as
      
    8 the information in that separate hearing, if you
      
    9 know what I mean.
      
    10 HEARING OFFICER HALLORAN: Right. I'm
      
    11 ready to rule. I just thought it was agreed
       
    12 that you would use your offer of proof as a
      
    13 substitute to the motion for a supplementary
      
    14 hearing.
      
    15 MR. KIM: From a practical standpoint, I
      
    16 mean, that's basically going to serve the same
      
    17 purpose, isn't it?
      
    18 MR. LaROSE: No, no, and here's why,
      
    19 because if the Board holds a separate hearing,
      
    20 that isn't an offer of proof. That's a separate
      
    21 hearing where admissible evidence is allowed.
      

    22 An offer of proof is for somebody, Mr. Halloran,
      
    23 as he knows, and I respect his decisions, and
      
    24 he's made a decision and the offer of proof is
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    234
      
      
      
    1 for someone else to look at and see if he made
      
    2 the right decision.
      
    3 It's a completely separate issue as
      
    4 to whether I'm entitled to a separate hearing on
      
    5 this, and I think that I am, and I'm willing to
       
    6 let the evidence set forth in the offer of proof
      
    7 be that separate hearing, and we already have it
      
    8 segregated as an offer of proof in this case,
      
    9 and if the ruling is that I'm allowed a separate
      
    10 hearing, that's the evidence that I would stand
      
    11 on and submit.
      
    12 MR. KIM: The only response is that even
      
    13 if the Board were to determine that some
      
    14 separate hearing separate and apart from what
      
    15 we're doing right now would be warranted, I
      
    16 disagree. I think my motion states that I don't
      
    17 think that's necessary.
      
    18 I still don't think that that just
      
    19 automatically throws out the rules of
      
    20 admissibility or any other evidentiary rules and
      

    21 guidelines that the Board has established by
      
    22 case law. I don't think that's a way around
      
    23 being able to present to the Board information
      
    24 that the Board has repeatedly said is not
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    235
      
      
      
    1 information that it should consider in reviewing
      
    2 a permit decision.
      
    3 I strongly disagree that that
      
    4 language should somehow be allowed to be used as
      
    5 a backboard in allowing in evidence that would
      
    6 not otherwise be included.
      
    7 HEARING OFFICER HALLORAN: My ruling on
      
    8 Mr. LaRose's motion to hold a separate hearing
      
    9 subject to Section 105.214(a) of the Board's
      
    10 procedural rules is denied. I find that the
      
    11 second sentence -- actually, it's the third, if
      
    12 any party desires to introduce evidence before
      
    13 the Board with respect to any disputed issue of
      
    14 fact nearly modifies Section 40(d) in which a
      
    15 hearing is to be held regarding any disputed
      
    16 facts.
      
    17 MR. LaROSE: Can I respond to that
      
    18 briefly?
      
    19 HEARING OFFICER HALLORAN: Briefly.
      

    20 MR. LaROSE: Again, I respectfully
       
    21 disagree with your opinion because if, in fact,
      
    22 the parties had agreed to amend the record under
      
    23 Section 43 -- 40(d) of the Act, there would be
      
    24 no need for a separate hearing because the
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    236
      
      
      
    1 record in the case would contain the information
      
    2 that we need.
      
    3 If, in fact, your ruling is correct,
      
    4 that this sentence modified 40(d) of the Act,
      
    5 then the entirety of this language is absolutely
      
    6 unnecessary and superfluous. The only reason
      
    7 that this could possibly be in there is to allow
      
    8 a separate hearing on issues of fact related to
      
    9 matters that aren't in the record.
      
    10 The history of this particular rule
      
    11 is that this provision was formerly in the
      
    12 provision that was related only to NPDES permit
      
    13 appeals, which were normal hearings and not
      
    14 related to the record. When the Board adopted
       
    15 this rule at first notice, it did not have this
      
    16 information in there and at second notice it
      
    17 did.
      
    18 The only conclusion that anyone can
      

    19 reach is whether the Board abolished the
      
    20 difference between the NPDES permit appeals and
      
    21 any other permit appeals in adopting the rule to
      
    22 allow separate hearings on the issues of fact.
      
    23 If, in fact, 40(d) was followed in this case,
      
    24 and Mr. Kim and I agreed to amend the record,
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    237
      
      
      
    1 like we have already in this case, there
      
    2 wouldn't be a need for a separate hearing.
      
    3 There isn't a need for a separate
      
    4 hearing on the things that I allowed him to
      
    5 amend the record with. It's absolutely -- it
      
    6 would be absolutely superfluous and meaningless
      
    7 language, and I would like you to at least
      
    8 consider that argument when you're making your
       
    9 ruling in this case.
      
    10 HEARING OFFICER HALLORAN: I've made my
      
    11 ruling. The record will so note your objections
      
    12 and comments, and you can and I'm sure you will
      
    13 appeal my ruling. With that said, based on your
      
    14 motion to allow certain evidence in, Mr. LaRose,
      
    15 we have one more in question, the evidence of
      
    16 expenditures?
      
    17 MR. LaROSE: Yes, sir. We haven't gotten
      

    18 to that one yet.
      
    19 HEARING OFFICER HALLORAN: All right. I
      
    20 just wanted to clear that up.
      
    21 MR. LaROSE: That will be coming in
      
    22 through probably a city personnel and through
      
    23 Mr. McDermott.
      
    24 HEARING OFFICER HALLORAN: Very well.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    238
      
      
      
    1 Thank you.
      
    2 MR. LaROSE: Thank you. That's all I
      
    3 have of Ms. Munie.
       
    4 HEARING OFFICER HALLORAN: Mr. Helsten.
      
    5 MR. HELSTEN: I've got two or three
      
    6 things pending before Ms. Munie, and I'm not
      
    7 sure if I want to ask any questions. Just a
      
    8 couple, just a couple, Ms. Munie.
      
    9 C R O S S - E X A M I N A T I O N
      
    10 by Mr. Helsten
      
    11 Q. Could you look at Exhibit No. 32 that
      
    12 Mr. LaRose previously asked you questions
      
    13 about? Do you have that in front of you, Ms.
      
    14 Munie?
      
    15 Was this submitted in support of the
      
    16 SIGMOD application that was ultimately denied on
      

    17 May 11th, 2001?
      
    18 A. I believe that this was the May 11th
      
    19 application. I'm sorry. Give me a second.
      
    20 Q. Yeah. Take whatever time you need to
      
    21 look at it.
      
    22 A. I'm sorry. Ask that question again.
      
    23 Q. Let me ask it differently.
      
    24 This is a submittal dated May 8th,
      
      
      
    L.A. REPORTING (312) 419-9292
       
     
      
      
    239
      
      
      
    1 2000, by Andrews Engineering,, correct?
      
    2 A. Correct.
      
    3 Q. And was this submittal in support of the
      
    4 pending application for SIGMOD that was
      
    5 ultimately denied on May 11th 2000 -- 2001?
      
    6 Excuse me.
      
    7 A. No.
      
    8 Q. Okay. This is different?
      
    9 A. Yes.
      
    10 Q. Oh, okay. One last question. Just out
      
    11 of curiosity, Joyce, why doesn't the LPCPA-1
      
    12 form include a section that asks for the
      
    13 information in 39(i)(2)?
      
    14 A. The information required by the 39(i)(2),
      
    15 it asks for every employee of a company and
      

    16 every employee of a company is a rather large
      
    17 list of people. If I were to ask them to submit
      
    18 information regarding every felony committed
      
    19 from every employee of a company, that would be
      
    20 a rather large submittal.
      
    21 I would also presume that I would
       
    22 have to ask for any violations in accordance
      
    23 with 39(i)(1), and, offhand, I don't remember
      
    24 what 39(i)(3) refers to, but I would presume I
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    240
      
      
      
    1 would have to ask for all that information for
      
    2 all the employees from everybody. It would be a
      
    3 lot of information.
      
    4 HEARING OFFICER HALLORAN: Thank you, Mr.
      
    5 Helsten. Mr. Kim.
      
    6 MR. KIM: Well, Mr. Helsten brought up a
      
    7 point. Is Exhibit 32 being offered? It is the
      
    8 -- I believe it relates to the August 2000
      
    9 SIGMOD permit that was issued. Is this being
      
    10 offered in this case?
      
    11 MR. LaROSE: Yes.
      
    12 MR. KIM: We would object to the entry of
      
    13 it, again, as to relevance. This relates to
      
    14 appeal. This is not related to this particular
      

    15 appeal. The information that this relates to
       
    16 was already the subject of an appeal. It is now
      
    17 before the Appellate Court. What's in this
      
    18 application has no bearing on what we decide in
      
    19 this case.
      
    20 MR. LaROSE: That's absolutely false.
      
    21 It's exactly what it has to do with. This is
      
    22 the very permit that required us to submit the
      
    23 permit application in this case. Mr. Hearing
      
    24 Officer, I would direct your attention to page
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    241
      
      
      
    1 three of the permit itself which appears about
      
    2 six or seven pages back on Exhibit 32, Roman
      
    3 numeral number I two --
      
    4 HEARING OFFICER HALLORAN: I'm sorry, Mr.
      
    5 LaRose. Where is it in the record?
      
    6 MR. LaROSE: Exhibit 32.
      
    7 HEARING OFFICER HALLORAN: Okay. I got
      
    8 it.
      
    9 MR. LaROSE: If you look one, two, three,
      
    10 four, five, six pages back on Group Exhibit 32,
       
    11 which is page three of the permit, number (i)(2)
      
    12 is the very provision that required us to submit
      
    13 the permit application in this case. No part of
      

    14 the unit shall be placed into service or accept
      
    15 waste until an acceptance report for all
      
    16 activities listed below has been submitted to
      
    17 and approved by the Illinois EPA as a
      
    18 significant modification to 35 IAC Sections
      
    19 811.505(d) and 813.203.
      
    20 Subparagraph A of that is
      
    21 preparation of the separation layer. This is
      
    22 the permit that forms the basis of the permit in
      
    23 this case. I understand these rulings about the
      
    24 -- about the record in this case, but if
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    242
      
      
      
    1 they're telling you that they didn't know about,
      
    2 consider, or have in their position the fact
      
    3 that we had to submit this application pursuant
      
    4 to this, I think that's just ludicrous, and I
      
    5 think if the rules of this -- of the Board are
      
    6 going to this extent to say we've just got to
      
    7 look at with a microscope this particular thing
      
    8 and nothing that happens before that directly
      
    9 relates to it, that's equally ridiculous. I
      
    10 move for the admission of Exhibit 32.
      
    11 MR. KIM: And that's not the objection.
      
    12 The objection is, as Mr. LaRose stated, that the
      

    13 permit that he referred to in that group exhibit
      
    14 requires the submission of the permit
      
    15 application that was ultimately denied in this
      
    16 case. There's no issue that's been raised as to
      
    17 why that permit application that we received
      
    18 here was submitted or that it was required or
      
    19 wasn't required.
      
    20 The only issue goes to whether or
      
    21 not the permit application that was submitted,
      
    22 and we have no problem -- nothing in that permit
      
    23 application relates to the decision at hand.
      
    24 HEARING OFFICER HALLORAN: Nothing in
       
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    243
      
      
      
    1 what permit application?
      
    2 MR. KIM: I'm sorry. The May 2000 permit
      
    3 application, which is in the exhibit that he's
      
    4 referring to, had nothing to do with the
      
    5 November 2000 application, which is actually the
      
    6 one in our administrative record in this case,
      
    7 which is the one that formed the basis for our
      
    8 decision.
      
    9 The only link is, as Mr. LaRose
      
    10 stated, that the previous permit required that
      
    11 this application be submitted, and, I mean,
      

    12 that's not an issue. The issue of why this
      
    13 permit application was submitted has not been
      
    14 raised as an issue. How we handled the permit
      
    15 application once it was submitted, that's
      
    16 obviously been called into question, but the
      
    17 necessity of that permit application means that
      
    18 it's never been raised as an issue.
       
    19 So I don't understand why we need to
      
    20 have the old permit, and it's not to say that --
      
    21 we're not trying to be nitpicky, but the thing
      
    22 is you've got to draw the line somewhere, and
      
    23 there's no reason for that document to be
      
    24 admitted as an exhibit in this case. It's not
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    244
      
      
      
    1 relevant to the decision at hand.
      
    2 MR. LaROSE: I direct your attention to
      
    3 page 85 of the record, Mr. Halloran. Are you
      
    4 with me?
      
    5 HEARING OFFICER HALLORAN: Yes, sir.
      
    6 MR. LaROSE: The first paragraph, about
      
    7 three lines down, the acceptance report is being
      
    8 submitted in accordance with special condition
      
    9 Roman number II of permit number 2000-1559(l)
      
    10 and (f). That's the very permit that we seek
      

    11 admission of in this case.
      
    12 Moreover, it has been our position
       
    13 since day one in my response to Ms. Munie -- Ms.
      
    14 Munie and in our permit appeal in this case that
      
    15 each one of these prior applications from 1996
      
    16 until now should have been subject to a 39(i)
      
    17 evaluation and investigation and if, in fact,
      
    18 they were, we would probably not be here today
      
    19 because we wouldn't have spent millions of
      
    20 dollars in developing this landfill and incurred
      
    21 several million dollars worth of liability.
      
    22 The fact that they reviewed this
      
    23 application and the fact that they didn't
      
    24 conduct a 39(i) investigation is absolutely
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    245
      
      
      
    1 crucial for the presentation of our Laches
      
    2 defense. In Laches defense, the Board has
      
    3 specifically held under certain circumstances we
      
    4 are entitled to bring. That's what this case is
      
    5 about.
      
    6 HEARING OFFICER HALLORAN: I'm sorry, Mr.
       
    7 LaRose. Did you cite any of those cases in your
      
    8 motion or response as far as the Laches?
      
    9 MR. LaROSE: I cited my -- well my,
      

    10 response wasn't related to this because he
      
    11 didn't move to keep this out, but I cited the
      
    12 Board's case, and I cited the Board's decision
      
    13 April 5th, 1993, in case number -- I'm sorry.
      
    14 April 5th, 2001, in case number 97-193, which
      
    15 specifically held that under certain
      
    16 circumstances Laches could apply.
      
    17 They did hold that Laches did not
      
    18 apply in that particular case, but they cited
      
    19 the circumstances in which they could, and I
      
    20 think I have that opinion here. I could show it
      
    21 to you.
      
    22 HEARING OFFICER HALLORAN: Mr. Kim, it's
      
    23 your position that the Agency did not rely on
      
    24 the May 8th, 2000 --
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    246
      
      
      
    1 MR. KIM: That's correct. We only relied
      
    2 on the application that's included within the
      
    3 administrative record.
      
    4 HEARING OFFICER HALLORAN: I'm going to
      
    5 sustain your objection. I'll deny Exhibit No.
      
    6 32 into evidence.
      
    7 MR. LaROSE: And is the ruling that this
      
    8 isn't relevant to the issue of Laches? Because
      

    9 you must understand the defense of Laches isn't
      
    10 based on what they reviewed. It's based on what
      
    11 they didn't do.
      
    12 HEARING OFFICER HALLORAN: I understand.
      
    13 MR. LaROSE: So how can I present a
      
    14 defense of Laches based on what they didn't do
      
    15 without presenting the applications that they
      
    16 didn't act upon?
      
    17 HEARING OFFICER HALLORAN: Perhaps the
      
    18 Board in its infinite wisdom will decide
      
    19 differently, but for now, I will deny it.
      
    20 MR. LaROSE: I would ask that it be
      
    21 admitted as an offer of proof.
      
    22 HEARING OFFICER HALLORAN: It will be
      
    23 admitted for an offer of proof. Go off the
      
    24 record.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    247
      
      
      
    1 (Discussion had
      
    2 off the record.)
      
    3 (Break taken.)
      
    4 MR. LaROSE: We're back on the record.
      
    5 Mr. Kim.
      
    6 MR. KIM: Thank you.
      
    7 R E D I R E C T E X A M I N A T I O N
      

    8 by Mr. Kim
      
    9 Q. Ms. Munie, you were asked earlier in your
      
    10 testimony questions as to whether the grant of
      
    11 the August 2000 permit was more preferable than
      
    12 leaving the site as was?
      
    13 MR. LaROSE: Objection. If he's going to
      
    14 ask her about the August 2000 permit and it's
      
    15 not been admitted in this case, then it's as
      
    16 irrelevant for him to ask her the questions as
       
    17 it was for me to ask her the questions.
      
    18 HEARING OFFICER HALLORAN: Mr. Kim.
      
    19 MR. KIM: Well, I have no problem
      
    20 expanding my relevancy objection on the exhibit
      
    21 and ask that all the questions that he posed
      
    22 regarding the August 2000 permit would be
      
    23 stricken.
      
    24 Mr. LaRose is stating how can he
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    248
      
      
      
    1 possibly expect to put on a defense and so forth
      
    2 if all those documents can't come in? I think
      
    3 he answered his own question. He's been asking
      
    4 Ms. Munie -- he's elicited a great deal of
      
    5 testimony from Ms. Munie about all this.
      
    6 I don't think that the document is
      

    7 necessary. He asked her the circumstances
      
    8 regarding the issuance of the document, how it's
      
    9 been handled, and so forth and so on. I don't
      
    10 think the document is needed for that. I think
       
    11 all you need is her testimony. I'm simply
      
    12 asking to cross -- redirect, I guess, a question
      
    13 based on testimony that he elicited.
      
    14 MR. LaROSE: Based on that, I agree, and
      
    15 I would withdraw my objection.
      
    16 HEARING OFFICER HALLORAN: Thank you, Mr.
      
    17 LaRose. Mr. Kim, you may proceed.
      
    18 BY MR. KIM:
      
    19 Q. Again, Ms. Munie, you were asked a
      
    20 question concerning the grant of the August 2000
      
    21 permit, and I believe there was a question as to
      
    22 your use of the word preferable, that permit
      
    23 being -- issuing the permit being more
      
    24 preferable than leaving the site as is.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    249
      
      
      
    1 Do you recall those line of
      
    2 questions?
      
    3 A. Yes.
      
    4 Q. What did you mean when you said you
      
    5 thought it would be more preferable to issue the
       

    6 permit than not?
      
    7 A. Actually, that was Mr. LaRose's words
      
    8 being more preferable, and in answering it --
      
    9 Q. Well, let me ask you this. How would you
      
    10 characterize it then?
      
    11 A. I would characterize it as the permit
      
    12 that was issued in August of 2000 was to bring
      
    13 -- to allow the site to be brought up to the
      
    14 new standards for landfills. With that permit
      
    15 in place, with all the conditions from that
      
    16 permit in place, the site would be operated in a
      
    17 more environmentally friendly manner.
      
    18 Q. And you were also asked a question
      
    19 concerning -- and I'm going to skip around a
      
    20 little bit here. So if I ask a leading question
      
    21 or two, it's just to get you to a point.
      
    22 You were also asked some questions,
      
    23 I believe, concerning what certain members of
      
    24 the Agency staff, past or present, should have
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
       
    250
      
      
      
    1 done if they had information concerning a past
      
    2 indictment. Included among the people that you
      
    3 were asked about was Sally Springer.
      
    4 Do you recall that line of
      

    5 questioning?
      
    6 A. Yes.
      
    7 Q. What policy or what guidance do you have
      
    8 in place that directs -- that -- let me rephrase
      
    9 that.
      
    10 What policy does the permit section
      
    11 have concerning what permit reviewers should do
      
    12 with that kind of information?
      
    13 A. There is no policy on that.
      
    14 Q. What guidance documents does the permit
      
    15 section have as to what permit reviewers should
      
    16 do if they have that information?
      
    17 A. There is no guidance document.
      
    18 Q. You were also asked some questions, I
      
    19 believe, concerning Wells letters, and
      
    20 generically Wells letters -- when I use that
      
    21 phrase, I'm referring to letters that are sent
       
    22 taking heed of the decision that was issued in
      
    23 the Wells Manufacturing case.
      
    24 You know what I mean when I refer to
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    251
      
      
      
    1 Wells letters, don't you?
      
    2 A. Yes.
      
    3 Q. Are the forms for the Wells letters
      

    4 standard forms?
      
    5 A. You mean the response letters that I
      
    6 sent?
      
    7 Q. Well, the Wells letters themselves. How
      
    8 do you prepare a Wells letter? What goes into
      
    9 preparing a Wells letter?
      
    10 A. There's some basic canned language in the
      
    11 front and at the bottom and with the legal
      
    12 description itself being the most variable and
      
    13 the dates of when these are received, variables.
      
    14 Q. Somewhere in front of you, do you have
      
    15 Exhibit 81?
      
    16 A. Yes.
      
    17 Q. Okay. Could you look to page 0275 of
      
    18 that exhibit?
      
    19 A. Yes.
      
    20 Q. Is that the document that goes on to page
      
    21 0276 of the Wells letter?
      
    22 A. Yes.
      
    23 Q. Is this typical, aside from the, you
      
    24 know, specifics, typical of the general form of
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    252
      
      
      
    1 the Wells letter that the Agency sends?
      
    2 A. Yes.
      

    3 Q. Okay. As far as the Wells letter -- and
      
    4 let's keep your attention on that particular
      
    5 document, page 275.
      
    6 What is the date of that document?
      
    7 A. April 4th, 2001.
      
    8 Q. And what was the deadline that the Agency
      
    9 provided for taking action? I'm sorry. Let me
      
    10 rephrase that.
      
    11 What was the Agency's permit
      
    12 deadline on that date for issuing a decision on
       
    13 this permit application?
      
    14 A. According to the letter, it's April 12th,
      
    15 2001.
      
    16 Q. And what was the date in the letter that
      
    17 the Agency allowed for a response time by
      
    18 Community Landfill Company or the City of
      
    19 Morris?
      
    20 A. Until 5:00 o'clock on April 9th, 2001.
      
    21 Q. How was the date April 9th arrived at?
      
    22 How was that chosen?
      
    23 A. I don't know specifically, but it looks
      
    24 like it's giving them more than halfway between
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    253
      
      
      
    1 the two days.
      

    2 Q. Okay. And I believe you answered this
      
    3 question, but just let me clarify this.
      
    4 In the administrative record, page
      
    5 -- which is the big book, pages 15 and 16, this
      
    6 is a response from Mr. LaRose addressed to you
      
    7 or to Ms. Roque; is that correct?
       
    8 A. Yes.
      
    9 Q. Was this included in your -- this was
      
    10 included as part of your review of the permit
      
    11 application in making this decision?
      
    12 A. Yes.
      
    13 Q. I believe you also testified on some
      
    14 questions concerning what you do when you
      
    15 receive an inquiry from a member of the press.
      
    16 Do you recall those questions?
      
    17 A. Yes.
      
    18 Q. And I think specifically the question was
      
    19 related to Chuck Pelkie; is that right?
      
    20 A. Yes.
      
    21 Q. What do you do if a reporter calls you
      
    22 with a question about a site or facility that's
      
    23 within your section's domain?
      
    24 A. If they call me directly, I try and get
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    254
      
      
      

    1 my public information officer on the line. If
      
    2 I'm not able to do that, I will answer the
       
    3 questions that are put to me stating the facts.
      
    4 Q. And why do you answer the questions as
      
    5 opposed to just choosing not to? What are your
      
    6 reasons for answering?
      
    7 A. The reason I answer is because we've been
      
    8 directed by the Agency in the form of my direct
      
    9 supervisor Mike Nechvatal and Bill Child stating
      
    10 that it's their preference that we answer
      
    11 questions.
      
    12 Q. There was also some question as to the
      
    13 use of the phrase investigative mode in the
      
    14 context of -- let's see. I believe it was page
      
    15 -- if you could turn to page 14 of the
      
    16 administrative record. I think there was a
      
    17 question concerning whether or not you were in
      
    18 the investigative mode as of 8:08 a.m. on March
      
    19 30th, 2001.
      
    20 Do you recall that question?
      
    21 A. Yes.
      
    22 Q. How would you characterize -- well, let's
      
    23 put it this way.
      
    24 Was investigative mode your phrase?
       
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    255
      

      
      
    1 A. No.
      
    2 Q. Okay. How would you characterize the
      
    3 status of the evaluation or investigation at
      
    4 that time?
      
    5 A. I would say that this is initiating an
      
    6 investigation.
      
    7 Q. Okay. If you could now turn to pages 12
      
    8 and 13 of the administrative record.
      
    9 Who prepared the words in that memo?
      
    10 A. I did.
      
    11 Q. Did you copy any of these words verbatim
      
    12 out of any document or group of documents?
      
    13 A. I quoted Mr. LaRose's April 9th letter.
      
    14 Q. Okay. Other than that quote, were there
      
    15 any other direct quotations that you took from
      
    16 any other source?
      
    17 A. There is a further quote pursuant to
      
    18 39(i) for the denial point of 39(i), but that's
      
    19 it.
      
    20 Q. Okay. If you could look now to Exhibit
      
    21 18, which is the guilty plea, and specifically
      
    22 page 30 of that exhibit.
      
    23 A. Okay.
      
    24 Q. Is there any information on this page
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      

    256
      
      
      
    1 that, in your mind, relates to waste management
      
    2 activities?
      
    3 A. Am I on the same page? Page three --
      
    4 page two of ten?
      
    5 Q. I'm sorry. It's Exhibit 18, page --
      
    6 A. Oh, I'm sorry. It's on page 18.
      
    7 HEARING OFFICER HALLORAN: This is the
      
    8 plea agreement, correct?
      
    9 MR. KIM: Plea agreement.
      
    10 HEARING OFFICER HALLORAN: Not the guilty
      
    11 plea?
      
    12 MR. KIM: Right.
      
    13 HEARING OFFICER HALLORAN: I think
      
    14 everyone is using it interchangeably.
      
    15 MR. KIM: I apologize.
       
    16 HEARING OFFICER HALLORAN: Oh, no. Don't
      
    17 apologize.
      
    18 BY MR. KIM:
      
    19 Q. Exhibit 18, which is the plea agreement,
      
    20 page three.
      
    21 A. Yes.
      
    22 Q. Is there any information on that page
      
    23 that you believe relates to waste management?
      
    24 A. Excel Disposal is a transfer station,
      
      
      
    L.A. REPORTING (312) 419-9292
      
     

      
      
    257
      
      
      
    1 which is a waste management activity or waste
      
    2 management facility in the State of Illinois.
      
    3 MR. LaROSE: Excuse me. Where is she
      
    4 quoting from?
      
    5 THE WITNESS: Page three, the second
      
    6 paragraph discussing their company, Excel
      
    7 Disposal and their business dealings.
      
    8 MR. LaROSE: Just a point of order here.
      
    9 I don't understand if she's quoting from the
      
    10 document or interpreting the document. So
       
    11 objection to the form of the question and her
      
    12 answer.
      
    13 MR. KIM: That's fine. I can clarify. I
      
    14 can rephrase the question.
      
    15 BY MR. KIM:
      
    16 Q. What information on page three of Exhibit
      
    17 18, in your opinion, relates to waste management
      
    18 activities in the State of Illinois?
      
    19 A. Excel Disposal Company being a transfer
      
    20 station.
      
    21 Q. And look now, please, if you could, back
      
    22 to the administrative record. I apologize for
      
    23 doing this to you. I'm trying to do this in the
      
    24 order they were raised. Page 16 of the
      
      
      
    L.A. REPORTING (312) 419-9292

      
     
      
      
    258
      
      
      
    1 administrative record.
      
    2 A. Okay.
      
    3 Q. The second full sentence that begins with
      
    4 the guilty plea and ends with the words matters
      
    5 related to environmental concerns, you were
       
    6 asked some questions concerning whether or not
      
    7 you believe that statement to be accurate or
      
    8 what -- how you use that statement in your
      
    9 review process.
      
    10 Do you recall those questions?
      
    11 A. Yes.
      
    12 Q. Do you believe that statement is
      
    13 completely accurate, in your opinion?
      
    14 A. No.
      
    15 Q. Okay. And why is that?
      
    16 A. A transfer station is related to
      
    17 environmental concerns.
      
    18 Q. And the transfer station?
      
    19 A. Being Excel Disposal.
      
    20 Q. Based on your understanding of the
      
    21 information that you had at the time you made
      
    22 your decision in this case, and that means not
      
    23 looking at Exhibit 18 because we did not have
      
    24 that, did you think that the allegations made in
      
      

      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    259
      
      
       
    1 the complaint related to environmental matters?
      
    2 MR. LaROSE: Objection, leading.
      
    3 HEARING OFFICER HALLORAN: Mr. Kim, can
      
    4 you rephrase, please?
      
    5 MR. KIM: I can try.
      
    6 BY MR. KIM:
      
    7 Q. What in the information that was before
      
    8 you at the time of your decision related, in
      
    9 your opinion, to Mr. Pruim and environmental
      
    10 concerns?
      
    11 A. It was the facts or the relationship
      
    12 between him and Excel Disposal, Excel Disposal
      
    13 being a transfer station.
      
    14 Q. Okay. You were also asked about what
      
    15 options the -- what means the facility might
      
    16 have to somehow, again, be able to accept
      
    17 waste. I think the question concerned reversal
      
    18 of its decision.
      
    19 What other ways would this facility
      
    20 ultimately be able to accept waste in
      
    21 conjunction with the constructed separation
      
    22 layer from this day forward?
      
    23 A. Resubmit an application for a significant
       
    24 modification to operate that addressed the two

      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    260
      
      
      
    1 denial points.
      
    2 Q. And just as a point of clarification, I
      
    3 might have misheard because I think I heard your
      
    4 answer different ways, what is your opinion as
      
    5 to whether or not the field operation section
      
    6 should -- let me rephrase that.
      
    7 What is your opinion as to whether
      
    8 or not it is appropriate for the field operation
      
    9 section to forward comments or opinions to the
      
    10 members of the permit section, yourself
      
    11 included?
      
    12 MR. LaROSE: Objection as to calls for
      
    13 her opinion. I didn't know she was here as an
      
    14 opinion witness.
      
    15 MR. KIM: In her role as department
      
    16 manager of the permit section.
      
    17 MR. LaROSE: I think she can testify as
      
    18 to what her interpretation is. I don't know if
      
    19 giving her opinion on anything in this case,
      
    20 other than the permit decision itself, is
      
    21 appropriate.
      
    22 MR. KIM: Well, I think a lot of the
      
    23 questions that have been asked so far have been

      
    24 what's your opinion of what does this case say
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    261
      
      
      
    1 or that case say. I think if she's qualified to
      
    2 somehow give opinions on case law, she can at
      
    3 least give her opinion on what type of
      
    4 information her staff should receive from field
      
    5 operation.
      
    6 HEARING OFFICER HALLORAN: I agree. You
      
    7 may ask the question again or if you know the
      
    8 answer, you may answer.
      
    9 BY THE WITNESS:
      
    10 A. Try again.
      
    11 BY MR. KIM:
      
    12 Q. I can try again, sure.
      
    13 What is your opinion as to the
      
    14 appropriateness of members of the field
      
    15 operation section sending comments -- their
      
    16 comments or opinions to your staff regarding a
      
    17 pending permit application?
      
    18 A. We actually encourage the field staff to
      
    19 send information to us including their
      
    20 opinions. They are the people actually seeing
      
    21 the site and viewing the site and can give us
      
    22 much more information than we can glean from an

      
    23 application.
      
    24 Q. What will your people do with that
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    262
      
      
      
    1 information once they receive it?
      
    2 A. If it's strictly an opinion, they'll look
      
    3 at it and move on. Facts that are directly
      
    4 related to the application in front of them,
      
    5 they will consider, and if it calls for a
      
    6 specific response, they would either give them
       
    7 an oral or written response.
      
    8 MR. KIM: Okay. I have nothing further.
      
    9 HEARING OFFICER HALLORAN: Mr. LaRose.
      
    10 R E C R O S S - E X A M I N A T I O N
      
    11 by Mr. LaRose
      
    12 Q. Ms. Munie, look at page three of Exhibit
      
    13 18 again. You said that you thought that the
      
    14 information on this page related to waste
      
    15 management activities because of the Excel
      
    16 Transfer Station?
      
    17 A. Yes.
      
    18 Q. Okay. I must have missed it, and maybe I
      
    19 did, where does the words transfer station
      
    20 appear on page three?
      
    21 A. Excel Disposal is a transfer station and

      
    22 was a transfer station.
      
    23 Q. But you got that from reading page three?
      
    24 A. The company Excel Disposal and the
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    263
      
      
      
    1 information I had previously.
       
    2 Q. Okay. Does the words transfer station
      
    3 appear anywhere on page three of Exhibit 18, yes
      
    4 or no?
      
    5 A. No.
      
    6 Q. You said that you encouraged the field to
      
    7 communicate with the permit writers, right?
      
    8 A. Yes.
      
    9 Q. If it's just their opinion, permit people
      
    10 aren't supposed to consider that, they look at
      
    11 it and completely move on, correct?
      
    12 A. Yes.
      
    13 Q. So what would be the purpose of them
      
    14 expressing their opinion to you at all?
      
    15 A. Just to express it.
      
    16 Q. Okay. So it's okay for them to express
      
    17 their opinion, but it's not okay for you to
      
    18 consider it, correct?
      
    19 A. Correct.
      
    20 Q. Okay. And no one has ever told them

      
    21 don't write us stuff expressing your opinion
      
    22 because we can't consider it, right?
      
    23 A. Correct.
      
    24 Q. In fact, you encourage just the opposite,
       
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    264
      
      
      
    1 don't you?
      
    2 A. Yes.
      
    3 Q. You said that you sent the Wells letter
      
    4 in enough time to give us half -- more than half
      
    5 time between April the 4th and April the 12th.
      
    6 Did that include the time it was
      
    7 going to take the U.S. Post Office to deliver
      
    8 these certified mail receipts?
      
    9 A. That was just calendar days.
      
    10 Q. And if, in fact the Wells letter didn't
      
    11 get to my client at all, let alone by April the
      
    12 9th, they didn't have an opportunity to respond,
      
    13 did they?
      
    14 A. No.
      
    15 Q. Okay. And, ma'am, the permit decision in
      
    16 this case was made on May the 11th, correct?
      
    17 A. Yes.
      
    18 Q. So we can assume that the April 12th
      
    19 deadline was either extended or you blew it and

      
    20 you didn't make the deadline?
      
    21 A. I would assume it was extended.
      
    22 Q. When it was extended so that you could
      
    23 make your decision by May the 11th, did you ever
      
    24 rewrite anybody from Community Landfill or from
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    265
      
      
      
    1 the City of Morris or me or Mr. McDermott saying
      
    2 we got a little more time, do you have anything
      
    3 else you want to tell us about the conviction?
      
    4 A. No.
      
    5 Q. You said that the permit that was granted
      
    6 in August of 2000 was good for the environment
      
    7 because it would require the landfill to come up
      
    8 to the new landfill standards I think you said,
      
    9 correct?
      
    10 A. Yes.
      
    11 Q. It also contemplated and, in fact,
      
    12 allowed the continuing operation of parcel A to
      
    13 the tune of 1.4 million yards of cubic waste
      
    14 being deposited in parcel A, right?
       
    15 A. Yes.
      
    16 Q. So it wasn't just bringing the landfill
      
    17 up to the regulations, it contemplated the very
      
    18 thing that we sought approval of in May of 2001,

      
    19 correct?
      
    20 It contemplated that we would build
      
    21 a separation layer and put waste on top of the
      
    22 separation layer, didn't it?
      
    23 A. Yes.
      
    24 MR. LaROSE: That's all I have.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    266
      
      
      
    1 HEARING OFFICER HALLORAN: Thank you, Mr.
      
    2 LaRose. Mr. Helsten.
      
    3 MR. HELSTEN: Nothing.
      
    4 HEARING OFFICER HALLORAN: Mr. Kim.
      
    5 MR. KIM: Nothing further.
      
    6 HEARING OFFICER HALLORAN: Ms. Munie, you
      
    7 may step down. Thank you very much. Let's go
      
    8 off the record, please.
      
    9 (Discussion had
       
    10 off the record.)
      
    11 (Break taken.)
      
    12 HEARING OFFICER HALLORAN: We're back on
      
    13 the record. It's approximately ten until 4:00.
      
    14 Mr. LaRose.
      
    15 MR. LaROSE: Ms. Roque as our next
      
    16 witness, please.
      
    17 HEARING OFFICER HALLORAN: Ms. Roque,

      
    18 could you please step up, raise your right hand,
      
    19 and the court reporter will swear you in.
      
    20
      
    21
      
    22
      
    23
      
    24
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    267
      
      
      
    1 (Witness sworn.)
      
    2 WHEREUPON:
      
    3 C H R I S T I N E R O Q U E,
      
    4 called as a witness herein, having been first
      
    5 duly sworn, deposeth and saith as follows:
      
    6 C R O S S - E X A M I N A T I O N
       
    7 by Mr. LaRose
      
    8 Q. Good afternoon.
      
    9 A. Good afternoon.
      
    10 Q. Okay. You particularly, and I'm not
      
    11 chastising you, you have to speak up otherwise
      
    12 she's not going to be able to hear you. Maybe
      
    13 pull that mike a little closer to you.
      
    14 A. Okay.
      
    15 Q. Could you state your name for the record,
      
    16 please?

      
    17 A. It's Christine Roque, R-o-q-u-e.
      
    18 Q. You were the permit reviewer for the
      
    19 permit at issue in this case, correct?
      
    20 A. Correct.
      
    21 Q. And you are a professional engineer?
      
    22 A. I'm an engineer. I'm not a professional
      
    23 engineer.
      
    24 Q. You're not a registered professional
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    268
      
      
      
    1 engineer?
      
    2 A. No.
       
    3 Q. But you have an engineering degree?
      
    4 A. Yes, I do.
      
    5 Q. You also were the permit reviewer on the
      
    6 August 2000 SIGMOD, correct?
      
    7 A. Correct.
      
    8 Q. And you agreed with the issuance of the
      
    9 August 2000 SIGMOD because you thought it was
      
    10 better for the environment to grant the permit
      
    11 than to leave the site the way it was, right?
      
    12 A. Right.
      
    13 Q. This permit, the permit in this case, was
      
    14 part of the overall scheme that was permitted in
      
    15 August 2000, correct?

      
    16 A. Correct.
      
    17 Q. Part of the overall permitted scheme in
      
    18 August 2000 was to build a separation layer over
      
    19 the old waste, put waste on top of it, and
      
    20 install leachate control devices, correct?
      
    21 A. Correct.
      
    22 Q. And if built correctly, the separation
      
    23 layer was going to be protective of the
      
    24 environment, right?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    269
      
      
      
    1 A. Right.
      
    2 Q. The permit also called for installation
      
    3 of leachate collection devices, correct?
      
    4 A. Correct.
      
    5 Q. Leachate storage tank, correct?
      
    6 A. Correct.
      
    7 Q. Direct sewer connections to the Morris
      
    8 POTW, correct?
      
    9 A. Correct.
      
    10 Q. Increased groundwater monitoring, both in
      
    11 terms of the number of Wells and the parameters
      
    12 to be monitored for?
      
    13 A. That's correct.
      
    14 Q. And an increased requirement for final

      
    15 cover for the facility?
      
    16 A. That's correct.
      
    17 Q. Of the many, many permits that you've
      
    18 reviewed, you've only been involved in one other
      
    19 39(i) investigation, correct?
      
    20 A. Correct.
      
    21 Q. And that was something to do with the
       
    22 Watts case, right?
      
    23 A. Right.
      
    24 Q. Your interpretation of Section 39(i) is
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    270
      
      
      
    1 that the Agency may conduct an evaluation,
      
    2 right?
      
    3 A. That was my understanding.
      
    4 Q. Okay. And that was your understanding at
      
    5 the time that you reviewed this particular
      
    6 permit application, right?
      
    7 A. Right.
      
    8 Q. And that was your understanding at the
      
    9 time that you gave your deposition a couple
      
    10 weeks ago, right?
      
    11 A. That's correct.
      
    12 Q. There are no written procedures as to
      
    13 when the Agency is to conduct an evaluation,

      
    14 correct?
      
    15 A. Yeah. We do not have a procedure for
      
    16 39(i).
      
    17 Q. 39(i) makes no distinction between the
       
    18 types of permits it applies to, correct?
      
    19 A. Correct.
      
    20 Q. Any permit for a sanitary landfill or a
      
    21 waste disposal site applies to Section 39(i)?
      
    22 A. That's correct.
      
    23 Q. Even though Section 39(i) says that the
      
    24 Agency shall conduct, from your experience, that
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    271
      
      
      
    1 doesn't always happen, right?
      
    2 A. My interpretation is different.
      
    3 Q. Okay. Even though Section 39(i) says
      
    4 shall conduct, from your experience, you don't
      
    5 always do a 39(i), yes or no?
      
    6 MR. KIM: Objection. When you say 39(i),
      
    7 what are you referring to? You said a 39(i).
      
    8 MR. LaROSE: Right.
      
    9 BY MR. LaROSE:
      
    10 Q. A 39(i) evaluation, yes or no, ma'am?
      
    11 A. I do not always do a 39(i).
      
    12 Q. Of the thousand or so permits that you've

      
    13 been involved in, in 998 of them, you didn't
      
    14 conduct a 39(i) evaluation?
      
    15 A. That's correct.
      
    16 Q. There is no Agency written guidance or
      
    17 memos on the implementation of Section 39(i), is
      
    18 there?
      
    19 A. No.
      
    20 Q. Even if the owner or operator is
      
    21 convicted of a felony, you still have discretion
      
    22 whether or not to deny the permit, correct?
      
    23 A. Correct.
      
    24 Q. And, in your opinion, if the permit is
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    272
      
      
      
    1 protective of the environment, you would grant
      
    2 the permit regardless of whether there was a
      
    3 conviction, right?
      
    4 A. I believe that's how we've been doing it.
      
    5 Q. Okay. I don't know about how you've been
      
    6 doing it. I want to know what your
      
    7 interpretation is right now.
      
    8 Please answer the question yes or
       
    9 no. If the permit was protective of the
      
    10 environment, you would recommend granting the
      
    11 permit regardless of a conviction, yes or no?

      
    12 A. Yes.
      
    13 Q. Have you read the Board's decisions or
      
    14 court cases regarding the implementation of
      
    15 Section 39(i)?
      
    16 A. No, I have not.
      
    17 Q. In conducting your evaluation, did you
      
    18 look at any other provisions of the Act?
      
    19 A. No.
      
    20 Q. When you conducted your evaluation in
      
    21 this case, you knew that Jim Pelnarsh was a
      
    22 certified operator of the site, not Bob Pruim,
      
    23 correct?
      
    24 A. I did not do the 39(i) evaluation --
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    273
      
      
      
    1 investigation.
      
    2 Q. Okay. At the time that you -- Strike
      
    3 that.
      
    4 You concurred with the 39(i)
       
    5 decision in this case, correct?
      
    6 A. Correct.
      
    7 Q. At the time that you concurred with the
      
    8 39(i) decision in this case, you knew that the
      
    9 certified operator was Jim Pelnarsh, not Bob
      
    10 Pruim?

      
    11 MR. KIM: Objeciton. I don't think any
      
    12 foundation has been made as to what time he's
      
    13 referring to.
      
    14 HEARING OFFICER HALLORAN: Mr. LaRose.
      
    15 MR. LaROSE: Okay.
      
    16 BY MR. LaROSE:
      
    17 Q. Ma'am, when the decision was made on
      
    18 April -- I'm sorry, May 11th, 2001, did you
      
    19 concur with that decision?
      
    20 A. Yes.
      
    21 Q. Okay. And you concurred with it at least
      
    22 as of May 11th, 2001, or sometime before,
      
    23 correct?
      
    24 A. Correct.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    274
      
      
       
    1 Q. Okay. At the time that you concurred,
      
    2 either on or prior to May 11th, 2001, did you
      
    3 know that the certified operator was Jim
      
    4 Pelnarsh, not Bob Pruim?
      
    5 A. Yes, I did.
      
    6 Q. Okay. You didn't make the 39(i) decision
      
    7 in this case, but you agreed with it, right?
      
    8 A. Right. I accepted it in final letter.
      
    9 Q. You didn't accept it only, you agreed

      
    10 with it, correct?
      
    11 A. Correct.
      
    12 Q. The information that you had was Joyce's
      
    13 memo of May the 9th, my letter, and the criminal
      
    14 case docket at the time that you concurred,
      
    15 correct?
      
    16 A. Correct.
      
    17 Q. You didn't even have the complaint in
      
    18 front of you at the time that you concurred with
      
    19 the decision, did you?
      
    20 A. I don't believe so.
      
    21 Q. When you agreed with the decision, did
      
    22 you know whether Mr. Pruim worked at the
      
    23 landfill?
       
    24 A. I know he's the president of the company.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    275
      
      
      
    1 Q. Okay. Did you know whether he worked at
      
    2 the landfill?
      
    3 A. No.
      
    4 Q. Did you know what decisions he made
      
    5 regarding the day-to-day operations?
      
    6 A. No.
      
    7 Q. Did you believe that the conviction
      
    8 related to Community Landfill based only on

      
    9 reading Joyce's memo of May the 9th?
      
    10 A. Can you repeat that?
      
    11 Q. Did you believe that the conviction
      
    12 related to Community Landfill based only on your
      
    13 reading of Joyce's memo dated May the 9th?
      
    14 A. That's correct.
      
    15 Q. You've never seen the guilty plea
      
    16 agreement, have you?
      
    17 A. No.
      
    18 Q. Other than Joyce's memo, you don't have
      
    19 any independent knowledge of whether the
       
    20 conviction had anything to do with waste
      
    21 management in Illinois, do you?
      
    22 A. No.
      
    23 Q. Did you hear people from the Agency
      
    24 saying that CLC was operating without a permit?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    276
      
      
      
    1 A. Yes.
      
    2 Q. You heard it from people that had
      
    3 involvement with CLC, including Joyce Munie,
      
    4 Paul Purseglove, Bruce Kugler, Bill Ingersoll,
      
    5 and John Kim, correct?
      
    6 A. Correct.
      
    7 Q. In your opinion, the site should have

      
    8 stopped accepting waste in 1997, correct?
      
    9 A. Correct.
      
    10 Q. Mark Retzlaff is the inspector for our
      
    11 site, right?
      
    12 A. Right.
      
    13 Q. Didn't he question why you should be --
      
    14 why you should issue a permit to this site?
      
    15 A. Yes.
       
    16 Q. Didn't he say it was hard to believe that
      
    17 somebody could get a permit under these
      
    18 circumstances?
      
    19 A. Yes.
      
    20 Q. You drafted -- you drafted three Wells
      
    21 letters with respect to the 39(i) issue and Mr.
      
    22 Pruim's convictions, did you not?
      
    23 A. Yes, I did.
      
    24 MR. LaROSE: John, 10, 11, and 12. Mr.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    277
      
      
      
    1 Halloran, I'm going to hand you and Ms. Roque
      
    2 Exhibits 10, 11 and 12.
      
    3 BY MR. LaROSE:
      
    4 Q. Ms. Roque, I'm going to hand you 10, 11,
      
    5 and 12, please. Let's start with No. 12.
      
    6 That's the Wells letter that was

      
    7 issued in this particular case, correct?
      
    8 A. Correct.
      
    9 Q. And 11 is the Wells letter that was
      
    10 issued under docket number 2000-051, correct?
       
    11 A. Correct.
      
    12 Q. And Exhibit 10 is the docket -- the Wells
      
    13 letter that was issued under docket 2000-012,
      
    14 correct?
      
    15 A. Correct.
      
    16 Q. Okay. The docket 2000-051, Exhibit 11
      
    17 Wells letter, that's the permit that was issued
      
    18 on June the 29th, 2001, correct?
      
    19 A. Correct.
      
    20 Q. And the Exhibit 10, the docket number
      
    21 2000-012, that's the permit that has yet to be
      
    22 issued, correct?
      
    23 A. 2001-012?
      
    24 Q. Yes.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    278
      
      
      
    1 A. It's still pending.
      
    2 Q. Okay. All of these Wells letters,
      
    3 Exhibits 10, 11, and 12, related to the criminal
      
    4 conviction of Mr. Pruim, correct?
      
    5 A. Correct.

      
    6 Q. What is your understanding of the
       
    7 Agency's obligations under the Wells
      
    8 Manufacturing case?
      
    9 A. That if we are going to consider factors
      
    10 outside of the scope of the application, we are
      
    11 required to -- we should send them a Wells
      
    12 letter notifying them of our intent to consider
      
    13 factors outside the scope of the application.
      
    14 Q. Isn't that also an opportunity for the
      
    15 person to respond to that information?
      
    16 A. Yes.
      
    17 Q. Okay. Wasn't this a short time for us to
      
    18 respond if we received the document on April 9th
      
    19 and we had to respond on April 9th?
      
    20 A. We mailed it April 4th.
      
    21 Q. Okay. Do you have Exhibit 81 in front of
      
    22 you?
      
    23 A. Yes.
      
    24 Q. Did you compile the record in this case,
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    279
      
      
      
    1 Ms. Roque?
      
    2 A. Yes, I did.
       
    3 Q. When you first compiled the record,
      
    4 neither the Wells letters nor the return

      
    5 receipts for the certified mail were included in
      
    6 the record, right?
      
    7 A. Right.
      
    8 Q. That wasn't on purpose, was it?
      
    9 A. No.
      
    10 Q. Did you -- that was just a mistake?
      
    11 A. I believe so. The letter went directly
      
    12 to the file. So if it went directly to me, I
      
    13 would have included it in the record.
      
    14 Q. Take a look at number page 0279 of
      
    15 Exhibit 81.
      
    16 Doesn't that show that the Wells
      
    17 letter was delivered to the City of Morris on
      
    18 April the 9th, '01, the same date that the
      
    19 response was due?
      
    20 A. Yes.
      
    21 Q. And you looked in the file, didn't you,
      
    22 at Mr. Kim's request to see if there was a
      
    23 return receipt as to when my client received the
      
    24 Wells letter?
      
      
      
    L.A. REPORTING (312) 419-9292
       
     
      
      
    280
      
      
      
    1 A. Yes.
      
    2 Q. And you couldn't find one, could you?
      
    3 A. No.

      
    4 Q. And you called the post office, didn't
      
    5 you?
      
    6 A. Yes.
      
    7 Q. And they couldn't find one either, could
      
    8 they?
      
    9 A. That's right.
      
    10 Q. As you sit here, you don't know whether
      
    11 the Wells letter dated April the 4th ever was
      
    12 received by anyone from Community Landfill,
      
    13 right?
      
    14 A. Right.
      
    15 Q. Okay. And if it was received -- we know
      
    16 that I got a copy from Mr. McDermott by fax on
      
    17 that day, right, and I had to respond by that
      
    18 afternoon, right?
      
    19 A. Right.
      
    20 Q. Did you think that was a sufficient
      
    21 enough opportunity for us to respond to the
      
    22 allegations regarding the serious eight-year-old
       
    23 criminal conviction?
      
    24 A. I don't know.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    281
      
      
      
    1 Q. Did you consider the pending enforcement
      
    2 case during your review of the permit

      
    3 application?
      
    4 A. No.
      
    5 Q. Did you consider the notices of violation
      
    6 that were issued on the financial assurance
      
    7 documents?
      
    8 A. No.
      
    9 Q. Did you consider the notice of intent to
      
    10 file suit with respect to the financial
      
    11 assurance documents when you did the permit
      
    12 activities in this case?
      
    13 A. No.
      
    14 Q. Did you consider any of the petitioners,
      
    15 Community Landfill's or the City of Morris',
      
    16 responses to any enforcement documents in making
      
    17 the permit decisions that you made in this case?
      
    18 A. No.
       
    19 Q. The Wells letters that you sent only
      
    20 related to Section 39(i), correct?
      
    21 A. Correct.
      
    22 Q. They didn't in any way address the issue
      
    23 of the delisting of Frontier, did they?
      
    24 A. No.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    282
      
      
      
    1 Q. You weren't at the meeting with Joyce

      
    2 Munie, Mike Nechvatal, Paul Purseglove, and John
      
    3 Kim, were you?
      
    4 A. No.
      
    5 MR. LaROSE: I'm sorry. Mr. Hearing
      
    6 Officer, before we get too far afield, I'm going
      
    7 to move for admission of Group Exhibit 81 and
      
    8 admission of Exhibits 10, 11, and 12.
      
    9 HEARING OFFICER HALLORAN: Mr. Kim.
      
    10 MR. KIM: No objection to 81, and, again,
      
    11 I'm not sure procedurally how the Board will
      
    12 handle it. This is something I've mailed to the
      
    13 clerk. I don't know how it's going to be
       
    14 handled.
      
    15 HEARING OFFICER HALLORAN: Right. I'll
      
    16 allow into evidence Exhibit Group 81 with no
      
    17 objection.
      
    18 MR. KIM: No exhibit as to exhibit -- no
      
    19 objection, it's getting late, as to Exhibit 12.
      
    20 No objection.
      
    21 HEARING OFFICER HALLORAN: No objection
      
    22 to Exhibits 10, 11, and 12. Exhibits 10, 11,
      
    23 and 12 are so admitted.
      
    24 BY MR. LaROSE:
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    283
      
      

      
    1 Q. Do you know why the permit reviewer,
      
    2 being you, wasn't at the meeting, but the head
      
    3 of field operations was?
      
    4 A. I don't know.
      
    5 Q. Okay. Do you know what he did?
      
    6 A. Who did?
      
    7 Q. Purseglove, at the meeting.
      
    8 A. No, I don't.
      
    9 Q. Let's look at the -- do you have the
       
    10 record in front of you, Christine?
      
    11 A. Yes.
      
    12 Q. We've looked at that before. It's
      
    13 consecutively numbered after the abstract in the
      
    14 front.
      
    15 A. Okay.
      
    16 Q. Look at pages 12 and 13, please. At the
      
    17 bottom of page 12 -- are you with me?
      
    18 A. Yes.
      
    19 Q. (Continuing.) -- and the top of page 13,
      
    20 there's a clause influence an employee with the
      
    21 City of Chicago in his responsibilities related
      
    22 to removal and disposal of waste.
      
    23 Do you know where Joyce came up with
      
    24 that statement?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    284

      
      
      
    1 A. I believe from her investigation.
      
    2 Q. Okay. But do you know where she got it
      
    3 from, yes or no?
      
    4 A. No.
      
    5 Q. Did you do anything to verify that
       
    6 information?
      
    7 A. No.
      
    8 Q. Look at page 13, please. The fourth
      
    9 sentence of the first full paragraph beginning
      
    10 with the word the Act, do you see that?
      
    11 A. The first paragraph?
      
    12 Q. First full paragraph, fourth sentence,
      
    13 which is the third line down beginning with the
      
    14 word the Act.
      
    15 A. Okay.
      
    16 Q. Okay. Do you agree with that sentence?
      
    17 A. Yes.
      
    18 Q. Ma'am, the first sentence of that
      
    19 paragraph says, Mike, Paul, and I discussed
      
    20 mitigating factors as enumerated in the
      
    21 April 9th letter from Mark LaRose.
      
    22 Do you know whether or not Joyce
      
    23 considered any other mitigating factors other
      
    24 than those contained in my letter?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      

      
    285
      
      
      
    1 A. I don't know.
       
    2 Q. If you knew about the criminal activity
      
    3 in August of 2000, would you have recommended a
      
    4 39(i) investigation at that time?
      
    5 A. It's Joyce's call to do an investigation.
      
    6 Q. Okay. If you had to make a
      
    7 recommendation to Joyce with respect to that,
      
    8 would you have recommended for her to do an
      
    9 evaluation?
      
    10 A. An investigation?
      
    11 Q. Investigation or evaluation.
      
    12 A. Yes.
      
    13 Q. Okay. What about -- you were the permit
      
    14 reviewer for the September '99 denial, correct?
      
    15 A. Correct.
      
    16 Q. The same question, if the same
      
    17 information came to you in September '99, would
      
    18 you have recommended to Joyce to conduct an
      
    19 evaluation or investigation?
      
    20 A. That's correct.
      
    21 Q. Okay. Is it your position as an
      
    22 environmental professional that a convicted
      
    23 felon is okay to receive a permit to protect the
      
    24 environment, but he's not okay to receive a
       
      
      
    L.A. REPORTING (312) 419-9292
      

     
      
      
    286
      
      
      
    1 permit to deposit waste pursuant to a permitted
      
    2 scheme, yes or no, ma'am?
      
    3 MR. KIM: I object to the form of the
      
    4 question. It's a compound question. If you
      
    5 could break it up into two, maybe that would be
      
    6 --
      
    7 MR. LaROSE: I could, except I asked her
      
    8 the same question before. Let me try and ask it
      
    9 again and see if she can follow me. Okay?
      
    10 HEARING OFFICER HALLORAN: Very well, Mr.
      
    11 LaRose.
      
    12 BY MR. LaROSE:
      
    13 Q. Is it your position as an environmental
      
    14 professional that a criminal is okay to receive
      
    15 a permit to protect the environment, but he's
      
    16 not okay to receive a permit to deposit waste
      
    17 pursuant to a permit that he's already been
      
    18 issued, yes or no?
      
    19 A. I'd say yes.
       
    20 Q. Adding more waste was all part of the
      
    21 permitted scheme in August of 2000, correct?
      
    22 A. Correct.
      
    23 Q. Adding up to 1.4 million cubic yards of
      
    24 more waste was part of that scheme, right?
      
      
      

    L.A. REPORTING (312) 419-9292
      
     
      
      
    287
      
      
      
    1 A. Right.
      
    2 Q. The permit denied in this case was to
      
    3 approve the construction of the separation layer
      
    4 and to approve putting waste on top of it,
      
    5 correct?
      
    6 A. Correct.
      
    7 Q. And the permit would have included
      
    8 installation of leachate control devices,
      
    9 correct?
      
    10 A. Correct.
      
    11 Q. And approving the construction of a
      
    12 three-foot impermeable clay layer that would be
      
    13 the separation layer, correct?
      
    14 A. Correct.
      
    15 Q. So part of the permit was at least to
       
    16 improve the environment, right?
      
    17 A. Right.
      
    18 Q. Did the denial -- Strike that.
      
    19 Did the fact that you concurred with
      
    20 the denial have anything to do with trusting
      
    21 Community Landfill or Community Landfill Company
      
    22 one way or the other?
      
    23 A. Trusting?
      
    24 Q. Trusting them to run these pollution
      

      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    288
      
      
      
    1 control devices in the right manner.
      
    2 A. The decision is based on what's being
      
    3 applied for, the scope of the application. It
      
    4 has nothing to do with trust.
      
    5 Q. Okay. So just to clarify the question,
      
    6 the fact that you concurred with the denial
      
    7 wasn't because you didn't trust us to do the
      
    8 right thing?
      
    9 A. Right.
      
    10 Q. You would recommend issuing a permit that
       
    11 was protective of the environment even though
      
    12 the president of the company was a convicted
      
    13 felon, correct?
      
    14 A. Correct.
      
    15 Q. The separation layer that was constructed
      
    16 by Community Landfill with the oversight of Mr.
      
    17 McDermott was built in accordance with the
      
    18 design and permit specifications, correct?
      
    19 A. Correct.
      
    20 Q. And you felt that way even though the
      
    21 fellow from field operations tried to tell you
      
    22 differently, right?
      
    23 A. Right.
      

    24 Q. Did you ever consider the fact in your
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    289
      
      
      
    1 concurrence with the permit decision that the
      
    2 Board had ruled in our favor on April 5th on the
      
    3 issues of operating without a permit?
      
    4 MR. KIM: I'm going to object. That
      
    5 question assumes she has some foundation or
       
    6 knowledge of that opinion, and I don't think
      
    7 that it's been established that she does.
      
    8 MR. LaROSE: I agree with that. I'll
      
    9 withdraw the question and try it again.
      
    10 HEARING OFFICER HALLORAN: Thank you, Mr.
      
    11 LaRose.
      
    12 BY MR. LaROSE:
      
    13 Q. Did you have knowledge about the Board's
      
    14 April 5th order in the enforcement case?
      
    15 A. The enforcement case?
      
    16 Q. Yes.
      
    17 A. Or the appeal?
      
    18 Q. The enforcement case. They did make --
      
    19 I'm not trying to be confusing.
      
    20 They made two decisions on the same
      
    21 day.
      
    22 A. Yeah. I think that's where I'm getting
      

    23 confused.
      
    24 Q. Okay.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    290
      
      
      
    1 A. I think I read the decision on the
       
    2 appeal.
      
    3 Q. Because that's the one you were involved
      
    4 in?
      
    5 A. Right.
      
    6 Q. And do you remember whether or not you
      
    7 read the one in the enforcement case?
      
    8 A. No, I'm not sure if I've read the
      
    9 enforcement case.
      
    10 Q. Okay. Look at page 53 of the record,
      
    11 please. Yes or no, ma'am, did you consider this
      
    12 memo at all in making your decisions this case?
      
    13 A. Parts of it.
      
    14 Q. Yes or no, ma'am?
      
    15 A. Yes.
      
    16 Q. Flip to the next page to page 54 of the
      
    17 record. You looked at this memo, too, in
      
    18 regards to your obligations in reviewing the
      
    19 permit in this case, correct?
      
    20 A. Correct.
      
    21 Q. When you talked to Retzlaff -- you did
      

    22 speak with him over the telephone regarding this
      
    23 particular permit, right?
      
    24 A. I believe so.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    291
      
      
      
    1 Q. Okay. When you spoke with him prior to
      
    2 May 11th, would he say things like the site has
      
    3 been involved in extensive enforcement, seems
      
    4 like they disregard the Act and input of the
      
    5 Agency, quite a bit of sloppy operations with
      
    6 little or no repercussions? Would he say things
      
    7 like that?
      
    8 A. I think so.
      
    9 Q. Is he making these statements, in your
      
    10 impression, because he keeps questioning why you
      
    11 keep issuing permits?
      
    12 A. I believe so.
      
    13 Q. Take a look at pages 55 through 59 of the
      
    14 record, please. That's Mr. Retzlaff's
      
    15 preoperational inspection report of March the
      
    16 7th, 2001, correct?
      
    17 A. Correct.
      
    18 Q. That accompanied his memo which appears
      
    19 on page 54 of the record, correct?
      
    20 A. Correct.
       

    21 Q. There isn't a single violation of the Act
      
    22 or the regulations noted in the preop
      
    23 inspection, is there?
      
    24 A. No.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    292
      
      
      
    1 Q. Have you ever been to Community Landfill?
      
    2 A. No.
      
    3 Q. Did you drive by it today?
      
    4 A. No. I didn't have time.
      
    5 Q. Okay.
      
    6 MR. KIM: I think he's there.
      
    7 HEARING OFFICER HALLORAN: I'm still
      
    8 here, Mr. LaRose.
      
    9 MR. LaROSE: I didn't know whether I
      
    10 killed you with boredom.
      
    11 BY MR. LaROSE:
      
    12 Q. Financial assurance, Blake Harris made
      
    13 the determination that the landfill was not in
      
    14 compliance with financial assurance, correct?
      
    15 A. Correct.
      
    16 Q. You had no input on that?
       
    17 A. No.
      
    18 Q. You made no independent determination
      
    19 regarding financial assurance, right?
      

    20 A. Right.
      
    21 Q. Joyce didn't either, did she?
      
    22 A. No.
      
    23 Q. As we sit here today -- as we sit here
      
    24 today, the presently applicable permits for this
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    293
      
      
      
    1 facility were the two SIGMODs issued on August
      
    2 4th modified by the permits issued on 2-1-2001
      
    3 and June 29th, 2001, correct?
      
    4 A. Correct.
      
    5 Q. The Agency has not yet issued any revised
      
    6 SIGMOD permits pursuant to the Board's April 5th
      
    7 order, right?
      
    8 A. Right.
      
    9 Q. Why not?
      
    10 A. I think because it's still under appeal.
      
    11 Q. Okay. Were you asked to do anything with
      
    12 respect to that?
       
    13 A. No.
      
    14 MR. LaROSE: John, No. 5. Mr. Halloran,
      
    15 I'm going to show the witness what's been
      
    16 previously marked as Exhibit 5.
      
    17 BY MR. LaROSE:
      
    18 Q. Ms. Roque, in the August 4th permits --
      

    19 permit application, didn't Mr. Taylor tell you
      
    20 that the Frontier Insurance bonds complied with
      
    21 the Act and the regulations in all respects?
      
    22 A. This doesn't tell me what kind of bonds
      
    23 they have. It just tells me that they have
      
    24 acceptable final assurance documents.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    294
      
      
      
    1 Q. Okay. Without referring to Exhibit 5 for
      
    2 a second, yes or no, did Mr. Taylor render an
      
    3 opinion in August of 2000 that the Frontier
      
    4 bonds complied with all regulations?
      
    5 A. Whatever financial assurance they have
      
    6 complies with the regulations.
       
    7 Q. Okay. But he didn't specifically say
      
    8 Frontier bonds?
      
    9 A. I don't know.
      
    10 Q. Now, Mr. Harris is telling you that the
      
    11 financial assurance doesn't comply with the
      
    12 regulations, right?
      
    13 A. The document says that.
      
    14 Q. You didn't do anything to attempt to
      
    15 reconcile those two positions, did you?
      
    16 A. No.
      
    17 Q. Did it personally bother you that there
      

    18 were two conflicting opinions by two
      
    19 environmental professionals who work for the
      
    20 Agency with respect to the same bonds?
      
    21 A. I think my answer during the deposition
      
    22 was, yes, personally it bothers me that there's
      
    23 inconsistencies in making decisions.
      
    24 Q. Ma'am, yes or no, whether a financial
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    295
      
      
      
    1 assurance mechanism is in compliance with the
       
    2 regulations, in your opinion, depends on what
      
    3 the permit application is for?
      
    4 A. That's correct.
      
    5 Q. Okay.
      
    6 MR. LaROSE: The only thing I have left
      
    7 is the June 29th stuff.
      
    8 HEARING OFFICER HALLORAN: Okay.
      
    9 MR. LaROSE: So I'll go through that
      
    10 quickly and then that's it.
      
    11 HEARING OFFICER HALLORAN: All right.
      
    12 For the record, this is Mr. LaRose's offer of
      
    13 proof, I believe, for the June 29th.
      
    14 BY MR. LaROSE:
      
    15 Q. You have in front of you Exhibit -- I
      
    16 think you have -- I hope you have in front of
      

    17 you Exhibit 37 and Exhibit 73. I just had it in
      
    18 front of me.
      
    19 A. Yes.
      
    20 MR. LaROSE: Give me a minute, fellows.
      
    21 I had it all stacked up here.
      
    22 MR. HELSTEN: Which one do you need?
      
    23 MR. LaROSE: 37 and 73.
      
    24 MR. HELSTEN: I've got it.
       
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    296
      
      
      
    1 MR. LaROSE: Thanks.
      
    2 BY MR. LaROSE:
      
    3 Q. Let's refer for a second to Exhibit 73 --
      
    4 I'm sorry, Exhibit 37. That's a small portion
      
    5 -- that's the cover letter for the permit
      
    6 application, the LPCPA-1, and then the permit
      
    7 that was issued on June 29th, 2001.
      
    8 MR. KIM: Is that a question?
      
    9 MR. LaROSE: Yes.
      
    10 BY MR. LaROSE:
      
    11 Q. Correct?
      
    12 A. Correct.
      
    13 Q. Okay. And you, even though Joyce signed
      
    14 this permit, you signed off on it on the last
      
    15 page, page 48, correct?
      

    16 A. Correct.
      
    17 Q. And you concurred with this particular
      
    18 permit decision, correct?
      
    19 A. Correct.
      
    20 Q. This was to operate an acceptance report
       
    21 for the installation and operation of gas
      
    22 monitoring probes at the site, correct?
      
    23 A. Correct.
      
    24 Q. As far as you know, the exact same
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    297
      
      
      
    1 financial assurance was in place for this
      
    2 particular application?
      
    3 A. I believe so.
      
    4 Q. And the same Bob Pruim was president of
      
    5 the corporation, the same one that you conducted
      
    6 or the Agency conducted a 39(i) evaluation on
      
    7 with respect to the prior application?
      
    8 A. Yes.
      
    9 Q. Okay. Take a look at Exhibit 73,
      
    10 please. These are excerpts from the Agency's
      
    11 record under log number 2001-051, which was the
      
    12 permit that was ultimately issued on June the
      
    13 29th, 2001, correct?
      
    14 A. Part of the record?
      

    15 Q. Yes, ma'am.
      
    16 A. Yes.
      
    17 Q. It contains in Exhibit 73
      
    18 Ms. Roque's May 9th memo, right?
      
    19 A. Right.
      
    20 Q. That's the same exact memo that's
      
    21 contained in the record in this case, right?
      
    22 A. Right.
      
    23 MR. KIM: You're referring to Ms. Munie's
      
    24 memo, right?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    298
      
      
      
    1 MR. LaROSE: Who did I --
      
    2 MR. KIM: You said Ms. Roque's.
      
    3 MR. LaROSE: Sorry.
      
    4 BY MR. LaROSE:
      
    5 Q. The memo from Ms. Munie to Ms. Roque
      
    6 dated May the 9th, 2001?
      
    7 A. Right.
      
    8 Q. Okay. And that's the same document that
      
    9 appears in the record in this case, correct?
      
    10 A. Correct.
      
    11 Q. My Wells letter response, April 9th,
      
    12 2001, that's the same letter that is included in
       
    13 the record in this case, correct?
      

    14 A. Correct.
      
    15 Q. The docket sheet in the criminal case,
      
    16 that's the same docket sheet that's included in
      
    17 the record in this case?
      
    18 A. Correct.
      
    19 Q. And then your permit reviewer notes where
      
    20 you take a position on the final action,
      
    21 correct?
      
    22 A. Correct.
      
    23 Q. Okay. And in the final action section,
      
    24 pages two and three -- that appear on pages two
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    299
      
      
      
    1 and three of your permit reviewer notes, you
      
    2 include in there your justifications for
      
    3 granting this permit even though he's been
      
    4 convicted of a felony, correct?
      
    5 A. Correct.
      
    6 Q. You don't say anything in here about why
      
    7 you granted the permit even in light of the
      
    8 Agency's position that the financial assurance
      
    9 is no good, though, do you?
      
    10 A. No, I did not.
      
    11 Q. Okay.
      
    12 MR. LaROSE: Mr. Halloran, that concludes
      

    13 the offer of proof with respect to Exhibits 37
      
    14 and 73 as they relate to Ms. Roque's testimony.
      
    15 HEARING OFFICER HALLORAN: Mr. Kim,
      
    16 briefly, do you want to renew your objection?
      
    17 MR. KIM: The same objection. The
      
    18 subject matter of those exhibits and of her
      
    19 testimony relates to a decision that was issued
      
    20 on June 29th, 2001, which is over a month after
      
    21 the decision in this case was rendered.
      
    22 It is outside the record, and it
      
    23 postdates the decision, and the Board should not
      
    24 consider it in its deliberations concerning the
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    300
      
      
      
    1 review of the May 11th, 2001, decision.
       
    2 HEARING OFFICER HALLORAN: I agree. Mr.
      
    3 Kim's objection is sustained. I find it
      
    4 irrelevant for the purposes of the hearing
      
    5 today, and the permit was 00-438?
      
    6 MR. KIM: That's the one we had before
      
    7 us. I think 00- --
      
    8 MR. LaROSE: 051.
      
    9 MR. KIM: -- 051 is the June 29th.
      
    10 HEARING OFFICER HALLORAN: Right, and I
      
    11 don't think it's relevant to the hearing today.
      

    12 MR. LaROSE: But we've already -- I
      
    13 believe we've already offered as an offer of
      
    14 proof Exhibits 73 and 37.
      
    15 HEARING OFFICER HALLORAN: Correct.
      
    16 MR. LaROSE: I would add to that the
      
    17 questioning -- ask that you allow me to add to
      
    18 that the questions and answers that we just went
      
    19 over with Ms. Roque.
      
    20 HEARING OFFICER HALLORAN: So noted.
      
    21 MR. LaROSE: That's all that I have for
      
    22 Ms. Roque at this time.
      
    23 HEARING OFFICER HALLORAN: Thank you, Mr.
       
    24 LaRose. Mr. Helsten.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    301
      
      
      
    1 MR. HELSTEN: Nothing, your Honor.
      
    2 HEARING OFFICER HALLORAN: Mr. Kim.
      
    3 MR. KIM: Hopefully, just a few
      
    4 questions.
      
    5 R E D I R E C T E X A M I N A T I O N
      
    6 by Mr. Kim
      
    7 Q. Ms. Roque, when you receive a permit
      
    8 application that's assigned to you, what steps
      
    9 do you take to review that application?
      
    10 A. What steps do I take?
      

    11 Q. Yes.
      
    12 A. We review for completeness of forms, of
      
    13 the application forms, that they're properly
      
    14 signed by the owner and operator, and we review
      
    15 the technical portion of the application, and if
      
    16 there are required reviewers from other units
      
    17 like groundwater or financial assurance, then we
      
    18 get -- I get their comments.
       
    19 I usually get comments from FOS or
      
    20 our field operation section and combine all
      
    21 comments together and make a decision based on
      
    22 that and make a recommendation based on all the
      
    23 comments and my review.
      
    24 Q. Okay. And in the -- in all the permit
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    302
      
      
      
    1 applications that have been assigned to you,
      
    2 have those steps been followed?
      
    3 A. Yes.
      
    4 Q. You also testified that it was your
      
    5 opinion that the landfill should have stopped
      
    6 accepting waste in 1997.
      
    7 Do you recall that?
      
    8 A. Yes.
      
    9 Q. What's the basis for that statement or
      

    10 for your opinion?
      
    11 A. Based on my knowledge that they have not
      
    12 received their significant modification,
      
    13 significant modification by September 18th,
       
    14 1997, and that they have not timely filed their
      
    15 application.
      
    16 Q. Okay. You were also asked some questions
      
    17 concerning the timeliness of the Wells letters
      
    18 that were sent out to the city and Community
      
    19 Landfill Company in the present case.
      
    20 Do you know why the deadlines that
      
    21 were imposed for them to respond to the Agency,
      
    22 how they were selected that were included in the
      
    23 Wells letters?
      
    24 A. I believe it was April 2nd when Joyce
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    303
      
      
      
    1 sent me that -- sent me a memo to go and write a
      
    2 Wells letter, and it was April 4th when we
      
    3 mailed it, and the due date of the application
      
    4 was April 12th. So I just picked, like, an
      
    5 arbitrary number in the middle to allow us time
      
    6 to review their response. So that's how I
      
    7 picked April 9th.
      
    8 Q. And what happened to push the deadline
      

    9 back in this case from April -- whatever the
      
    10 original date was to May 11th?
      
    11 A. Well, yeah. When the time -- the time I
      
    12 wrote the Wells letter, there were some pending
      
    13 engineering issues at the time, and Mike
      
    14 McDermott had sent me additional information on
      
    15 the 12th.
      
    16 Q. Of what month?
      
    17 A. April 12th. That extended the due date
      
    18 another 30 days.
      
    19 Q. Okay. You were also asked some questions
      
    20 concerning two different situations involving
      
    21 someone who had been convicted of a felony
      
    22 receiving a permit for control devices and
      
    23 receiving a permit for accepting waste.
      
    24 What is your -- let me rephrase
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    304
      
      
      
    1 that. Why is it, in your opinion, acceptable
      
    2 for a convicted felon to receive a permit that
      
    3 would allow for the operation or installation of
      
    4 pollution control devices compared to his
      
    5 receiving a permit to authorize the acceptance
      
    6 of additional waste?
      
    7 A. First of all, just because they have a
      

    8 39(i) investigation does not mean we're never
      
    9 going to give them a permit, we're never going
      
    10 to issue them a permit, and, second, if it's
      
    11 more beneficial for the environment, we give
      
    12 them a permit.
      
    13 Q. Is a -- why would a permit to accept
      
    14 additional waste not necessarily be beneficial
      
    15 to the environment?
      
    16 MR. LaROSE: Objection, leading.
      
    17 HEARING OFFICER HALLORAN: Mr. Kim.
      
    18 MR. KIM: I asked why. I'm not asking
      
    19 for a yes or a no. I'm asking her why wouldn't
      
    20 it be beneficial.
      
    21 HEARING OFFICER HALLORAN: You may
      
    22 answer, if you're able.
      
    23
      
    24 BY THE WITNESS:
       
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    305
      
      
      
    1 A. It will generate more leachate and more
      
    2 operational issues.
      
    3 BY MR. KIM:
      
    4 Q. Okay. Could you please look to the
      
    5 administrative record in this case and turn to
      
    6 page 53? That's an e-mail that was sent to
      

    7 Joyce Munie from Mark Retzlaff and apparently
      
    8 you received a copy of that as well; is that
      
    9 correct?
      
    10 A. That's correct.
      
    11 Q. What portions of this e-mail did you
      
    12 consider helpful and what portions did you
      
    13 consider not helpful in your review of the
      
    14 permit application?
      
    15 A. I only considered portions of this e-mail
      
    16 that relates to the constructed cell, which is
      
    17 his comment on the site, the liner, and side
      
    18 walls.
      
    19 Q. Okay. What portions of this e-mail did
       
    20 you not consider in your review of the permit
      
    21 application?
      
    22 A. Anything that sounds like his opinion.
      
    23 Q. How common is it for permit reviewers to
      
    24 receive opinions or comments from members of the
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    306
      
      
      
    1 field operation section in the context of a
      
    2 pending permit application?
      
    3 A. It's quite common.
      
    4 Q. And when you receive those, how do you --
      
    5 how do you take those comments or opinions from
      

    6 the field staff in conjunction with your permit
      
    7 review?
      
    8 A. We listen to their opinions because we
      
    9 want to know more about the particular facility,
      
    10 but we try to separate it. We try to just focus
      
    11 on the scope of the application, and we do not
      
    12 consider any opinions in making our decision.
      
    13 Q. Okay. Turn to page 54 of the
       
    14 administrative record.
      
    15 A. Thirty-four?
      
    16 Q. I'm sorry, 54.
      
    17 A. Okay.
      
    18 Q. This is a memo addressed to you from Mark
      
    19 Retzlaff; is that right?
      
    20 A. That's right.
      
    21 Q. The same set of questions, what portions
      
    22 of this memo from Mark to you did you consider
      
    23 helpful in the course of your review of the
      
    24 permit application?
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    307
      
      
      
    1 A. Only the portion that talks about how the
      
    2 cell was constructed.
      
    3 Q. What portions of this memo did you
      
    4 consider not so helpful in your review of the
      

    5 permit application?
      
    6 A. Anything that he gives his opinion on.
      
    7 Q. Could you, for example, pick out some
      
    8 portion of the memo that you're referring to?
      
    9 A. Yeah. The side wall slopes of the cell
       
    10 are at an inadequate height along three of the
      
    11 four sides.
      
    12 Q. Okay. Are there any other comments in
      
    13 the memorandum that you think were not
      
    14 particularly helpful in the course of your
      
    15 review?
      
    16 A. I think the rest of this are his
      
    17 opinions.
      
    18 Q. I'm sorry?
      
    19 A. The rest of the memo are Mr. Retzlaff's
      
    20 opinions.
      
    21 Q. Okay. Maybe I'll rephrase -- maybe I
      
    22 asked my question ambiguously.
      
    23 What I meant to ask you was what
      
    24 portions of this memo did you not find helpful
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    308
      
      
      
    1 when you were conducting your permit review?
      
    2 A. Oh, did I not find helpful?
      
    3 Q. Yes, yes.
      

    4 A. The third paragraph.
      
    5 Q. Beginning where?
       
    6 A. This site has been involved in extensive
      
    7 enforcement and seems to disregard the Act.
      
    8 Q. Okay. The last question I had for you
      
    9 was you were asked a question concerning whether
      
    10 financial assurance was compliant and whether or
      
    11 not that depends on the type of permit that was
      
    12 issued.
      
    13 What is your position as to whether
      
    14 financial assurance depends upon the type of
      
    15 permit that's issued?
      
    16 A. Financial assurance -- compliance with
      
    17 financial assurance is required for any waste
      
    18 disposal application. That's specifically
      
    19 stated in 811.700, and that is -- that's why we
      
    20 consider that financial assurance or the
      
    21 noncompliance with financial assurance as a
      
    22 denial point in the 2000-438 application and not
      
    23 really the gas probes.
      
    24 Q. And is the gas probe the permit decision
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    309
       
      
      
    1 that was issued in February 2001?
      
    2 A. I think that was issued in June.
      

    3 Q. Okay. What was the decision -- what was
      
    4 the permit decision issued in February of 2000,
      
    5 do you recall? I don't know if I've got that.
      
    6 MR. LaROSE: Maps or something, facility
      
    7 maps.
      
    8 BY THE WITNESS:
      
    9 A. Yeah. The February 2001, I think that's
      
    10 just the submission of facility maps showing
      
    11 monitoring locations in both areas.
      
    12 BY MR. KIM:
      
    13 Q. Was financial assurance reviewed in
      
    14 conjunction with that permit application?
      
    15 A. No.
      
    16 Q. And why not?
      
    17 A. Because it's not asking to place waste in
      
    18 an area.
      
    19 MR. KIM: I have nothing further.
      
    20 HEARING OFFICER HALLORAN: Mr. LaRose.
      
    21 MR. LaROSE: Briefly.
      
    22 R E C R O S S - E X A M I N A T I O N
      
    23 by Mr. LaRose
       
    24 Q. You said that these memos that you get,
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    310
      
      
      
    1 some parts of it are helpful and some parts of
      

    2 it aren't in your investigation, correct?
      
    3 A. Correct.
      
    4 Q. Don't you have to read the whole thing to
      
    5 determine which part is helpful and which part
      
    6 is not?
      
    7 A. Yes. I read the whole thing.
      
    8 Q. And you said that you listen to the
      
    9 opinions to learn more about the facility; is
      
    10 that right?
      
    11 A. Right.
      
    12 Q. Okay. So you do consider the opinions as
      
    13 part of your information gathering with respect
      
    14 to the facility, right?
      
    15 A. Information gathering, but not
      
    16 necessarily the decision.
      
    17 Q. Okay. But information gathering, the
      
    18 answer to that question is yes, right?
       
    19 A. Yes.
      
    20 Q. If the rest of it's not helpful in making
      
    21 your decision, does that mean that it somehow
      
    22 makes your decision harder to weed through that
      
    23 information?
      
    24 A. No.
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    311
      
      
      

    1 Q. Okay. So the corollary is not true, if
      
    2 it's not helpful in making your decision, it
      
    3 doesn't make your decision more difficult?
      
    4 A. If it's not what?
      
    5 Q. Yeah. I'm not so sure -- I'll withdraw
      
    6 that question. It's getting late.
      
    7 You said that giving a -- you said
      
    8 that giving a convicted felon a permit to put
      
    9 more waste on the site would be potentially
      
    10 harmful to the environment because it would
      
    11 generate more leachate, correct?
      
    12 A. Correct.
      
    13 Q. Wasn't part of this permit to install the
       
    14 very separation layer and the leachate control
      
    15 devices that were designed to control that
      
    16 leachate?
      
    17 A. Yes.
      
    18 Q. Okay. Why in the world would anyone want
      
    19 to spend their money to put leachate control
      
    20 devices to control leachate from waste if they
      
    21 couldn't put waste into the facility?
      
    22 MR. KIM: Objection. That's speculation
      
    23 on the part of the witness.
      
    24 BY MR. LaROSE:
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      
    312
      

      
      
    1 Q. Ma'am?
      
    2 MR. KIM: She's not a --
      
    3 HEARING OFFICER HALLORAN: Mr. LaRose.
      
    4 MR. LaROSE: You know, I think I'm
      
    5 getting soft in my old age. I think he's
      
    6 right. I'll withdraw the question.
      
    7 BY MR. LaROSE:
      
    8 Q. Ma'am, when you approved the permit in
      
    9 August of 2000, it was certainly contemplated by
      
    10 that permit application that they would not only
      
    11 spend their money to install pollution control
      
    12 devices, but they might be able to actually make
      
    13 some money by depositing waste into the
      
    14 landfill, correct?
      
    15 A. Correct.
      
    16 Q. And part of the scheme for depositing
      
    17 waste into the landfill was to do it all within
      
    18 a manner and a permitted fashion that would
      
    19 protect the environment, right?
      
    20 A. Right.
      
    21 Q. Okay. You said that the Wells letter was
      
    22 mailed on April the 4th.
      
    23 When Mr. McDermott submitted
      
    24 additional information on April the 12th, is
      
      
      
    L.A. REPORTING (312) 419-9292
      
     
      
      

    313
      
      
      
    1 there some rule that gives you an automatic
      
    2 extension when he submits additional?
      
    3 A. Yes.
       
    4 Q. So if before the due date the consultant
      
    5 or the permit applicant submits additional
      
    6 information, you guys get an automatic 30-day
      
    7 extension, right?
      
    8 A. Right.
      
    9 Q. When that happened, did anybody write me
      
    10 another Wells letter or call me up or do
      
    11 anything to say you've got a little bit more
      
    12 time to respond?
      
    13 A. No.
      
    14 Q. Okay. Ma'am, flip the page to page 235
      
    15 of the record, please.
      
    16 Is this Mr. McDermott's cover letter
      
    17 to you with the submittal of the additional
      
    18 information?
      
    19 A. Yes.
      
    20 Q. And this is the April 12th stuff, right?
      
    21 A. Right.
      
    22 Q. It says in accordance with our discussion
      
    23 yesterday.
      
    24 Do you remember whether he called
      
      
      
    L.A. REPORTING (312) 419-9292
      
     

      
      
    314
       
      
      
    1 you or you called him on April the 11th?
      
    2 A. I don't remember.
      
    3 Q. Okay. But somebody had a telephone
      
    4 conversation on April 11th that resulted in the
      
    5 submittal on April the 12th, right?
      
    6 A. Right.
      
    7 MR. LaROSE: That's all I have.
      
    8 HEARING OFFICER HALLORAN: Thank you, Mr.
      
    9 LaRose.
      
    10 MR. LaROSE: You're welcome.
      
    11 HEARING OFFICER HALLORAN: Mr. Helsten?
      
    12 MR. HELSTEN: Nothing.
      
    13 HEARING OFFICER HALLORAN: Mr. Kim.
      
    14 MR. KIM: No, nothing.
      
    15 HEARING OFFICER HALLORAN: Thank you, Ms. Roque.
      
    16 You can step down.
      
    17 THE WITNESS: Thank you.
      
    18 HEARING OFFICER HALLORAN: Thank you.
      
    19 We'll go off the record briefly, please.
      
    20 (Discussion had
      
    21 off the record.)
      
    22 HEARING OFFICER HALLORAN: We're back on
      
    23 the record. It's approximately ten until 5:00.
       
    24 We're going to close this hearing today, October
      
      
      
    L.A. REPORTING (312) 419-9292

      
     
      
      
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    1 15th, and we're going to continue it on the
      
    2 record tomorrow, October 16th, at 9:00 a.m. in
      
    3 the same place. Thank you very much. Have a
      
    4 safe trip to your hotels.
      
    5 (Whereupon, these were
      
    6 all the proceedings held
      
    7 in the above-entitled matter.)
      
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    L.A. REPORTING (312) 419-9292
       
     
      
      
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    1 STATE OF ILLINOIS )
    ) SS.
    2 COUNTY OF C O O K )
      
    3
      
    4 I, GEANNA M. IAQUINTA, CSR, do
      
    5 hereby state that I am a court reporter doing
      
    6 business in the City of Chicago, County of Cook,
      
    7 and State of Illinois; that I reported by means
      
    8 of machine shorthand the proceedings held in the
      
    9 foregoing cause, and that the foregoing is a
      
    10 true and correct transcript of my shorthand
      
    11 notes so taken as aforesaid.
      
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    ______________________________
    14 GEANNA M. IAQUINTA, CSR
    . Notary Public, Cook County, IL
    15 Illinois License No. 084-004096
      
    16
      
    17 SUBSCRIBED AND SWORN TO
    before me this_____day
    18 of_______, A.D., 2001.
      
    19 _______________________
    Notary Public
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    L.A. REPORTING (312) 419-9292
      

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