239
1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2
3
IN THE MATTER OF: )
4 )
PRAIRIE RIVERS NETWORK, )
5 )
Petitioner, )
6 )
-vs- ) PCB 01-112
7 ) VOLUME II
ILLINOIS ENVIRONMENTAL )
8 PROTECTION AGENCY AND )
BLACK BEAUTY COAL COMPANY, )
9 )
Respondents. )
10
11
12
13
The following is the transcript of a hearing
14 held in the above-entitled matter, taken stenographically
by Jennifer E. Johnson, CSR, before John Knittle, Hearing
15 Officer, at 6 North Vermilion Road, 2nd Floor Conference
Room, Danville, Illinois, on the 2nd day of May, 2001
16 A.D., commencing at the hour of approximately 9:18 a.m.
17
18
19
20
21
22
23
24
240
1 PRESENT:
2 HEARING TAKEN BEFORE:
3 ILLINOIS POLLUTION CONTROL BOARD
100 West Randolph Street, Suite 11-500
4 Chicago, Illinois 60601
(312) 814-6923
5 BY: MR. JOHN KNITTLE
6
APPEARANCES:
7
ENVIRONMENTAL LAW & POLICY CENTER
8 BY: ALBERT ETTINGER, ESQUIRE
35 East Wacker Drive, Suite 1300
9 Chicago, Illinois 60601-2110
(312) 795-3707
10 On Behalf of the Petitioner.
11 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
BY: SANJAY K. SOFAT, ESQUIRE
12 1021 North Grand Avenue East
Springfield, Illinois 62794-9276
13 (217) 782-5544
On Behalf of the Respondent Environmental
14 Protection Agency.
15 OPPENHEIMER WOLFF & DONNELLY, LLP
BY: W.C. BLANTON, ESQUIRE
16 Plaza VII, Suite 3300
45 South Seventh Street
17 Minneapolis, Minnesota 55402-1609
(612) 607-7450
18 On Behalf of the Respondent Black Beauty
Coal Company.
19
ALSO PRESENT:
20
FRED L. HUBBARD, ESQUIRE
21 415 North Gilbert Street
Danville, Illinois 61834
22 (217) 446-0144
On Behalf of Vermilion Coal Company.
23
MEMBERS OF THE PUBLIC WERE ALSO PRESENT
24
241
1 INDEX
PAGE
2
DEAN VLACHOS
3
Direct Examination by Mr. Blanton 277
4 Cross-Examination by Mr. Ettinger 333
Redirect Examination by Mr. Blanton 373
5
ERIC FRY
6
Direct Examination by Mr. Blanton 374
7 Cross-Examination by Mr. Ettinger 453
8 PUBLIC COMMENTS 458
9 CLOSING ARGUMENTS
10 By Mr. Ettinger 468
By Mr. Sofat 475
11 By Mr. Blanton 476
By Mr. Hubbard 480
12
EXHIBITS
13 HEARING OFFICER'S:
14 Exhibit Number 1 250
Exhibit Number 2 251
15 Exhibit Number 3 251
16 BLACK BEAUTY COAL COMPANY'S:
17 Exhibit Number 16 250
Exhibit Number 17 250
18 Exhibit Number 18 250
Exhibit Number 19 250
19 Exhibit Number 20 250
Exhibit Number 21 250
20 Exhibit Number 22 250
Exhibit Number 23 250
21 Exhibit Number 24 251
Exhibit Number 25 251
22 Exhibit Number 26 251
Exhibit Number 27 251
23 Exhibit Number 28 251
Exhibit Number 29 252
24
242
1 EXHIBITS CONTINUED:
PAGE
2
Exhibit Number 30 252
3 Exhibit Number 31 252
Exhibit Number 32 252
4 Exhibit Number 33 252
Exhibit Number 34 252
5 Exhibit Number 38 279
Exhibit Number 39 303
6 Exhibit Number 40 320
Exhibit Number 41 312
7 Exhibit Number 42 318
Exhibit Number 43 284
8 Exhibit Number 44 325
Exhibit Number 45 331
9 Exhibit Number 46 376
Exhibit Number 47 381
10 Exhibit Number 48 409
Exhibit Number 49 386
11 Exhibit Number 50 390
Exhibit Number 51 394
12 Exhibit Number 52 394
Exhibit Number 53 394
13 Exhibit Number 54 421
Exhibit Number 55 421
14 Exhibit Number 57 425
Exhibit Number 58 425
15 Exhibit Number 59 436
Exhibit Number 61 439
16
17
18
19
20
21
22
23
24
243
1 P R O C E E D I N G S
2 HEARING OFFICER: All right. We are back on
3 the record. Today is May 2nd. It is approximately 9:18
4 a.m. This is the second day of hearing in Pollution
5 Control Number 2001-112, Prairie Rivers Network versus
6 the IEPA and Black Beauty Coal Company. We have all the
7 parties still present and appearing.
8 We still have a contingent from the public;
9 and as before, we are going to allow for public comment
10 after the closes of the case in chiefs which we estimate
11 will be in about two to three hours, maybe a little
12 longer, but, but not much past that anyway. If, as
13 before, you need to leave or you have a conflict that you
14 cannot avoid, please let me know by raising your hand or
15 some such signal, and I'll try to fit you in as soon as
16 we can.
17 We are currently finished with the cases in
18 chief of the petitioner and the respondent the IEPA, and
19 are about to commence the case in chief of Black Beauty
20 Coal Company. And I think we'll just leave it up to
21 Mr. Blanton to call his first witness. Or do we have
22 some preliminary matters?
23 MR. BLANTON: Some other evidence.
24 HEARING OFFICER: Why don't we address those?
244
1 MR. BLANTON: Thank you, Mr. Knittle. To open
2 Black Beauty's case in chief, I would first offer the
3 testimony of three witnesses by deposition. These
4 witnesses were deposed on April 11 and 12 pursuant to
5 subpoenas and notices duly issued. The parties stipulated
6 at the depositions that they could be taken for both
7 discovery and evidentiary purposes. On April 30, I served
8 all other parties with copies of Black Beauty Coal
9 Company's designation of deposition testimony in which we
10 set forth the deponents, the dates of the deposition, and
11 the portions of the depositions that we wished to offer.
12 Before we begin this morning, Mr. Ettinger
13 identified some additional material in one deponent's
14 deposition. We have no objection to that being included
15 as well. We've received very recently the original
16 transcripts. Two of the three deponents have reviewed
17 them, made any changes that they wanted to make, and have
18 signed them. One deponent has not. Because I just got
19 the originals, I have not been able to mark which portions
20 are being offered. I would suggest that those portions
21 that Black Beauty is offering be highlighted in yellow in
22 each of the depositions, and that the portion Mr. Ettinger
23 would like to have be highlighted in light blue. We would
24 assume responsibility of doing that and submitting it to
245
1 you as soon as we have all of them, which will probably be
2 Monday since we're going to be here in Illinois doing
3 depositions for the rest of the week.
4 With that, I will -- rather than identifying
5 the portions, I'll simply identify the depositions and the
6 associated exhibits. What we did was offer, in addition,
7 the deposition exhibits that are referred to in the
8 offered testimony. I have prepared those original
9 deposition exhibits with further hearing exhibit numbers
10 so each of those exhibits bears two stamps; one is the
11 deposition stamp, and the other is the exhibit stamp for
12 here.
13 So, with that, first I will -- if I may
14 approach the bench, I'll give you a copy of the
15 designation. I note that we had thought we might offer
16 the deposition of Rosa Ellis. We are not, so I have
17 crossed that out on the first page. It is only the other
18 three depositions that are being offered.
19 HEARING OFFICER: Okay. Are you marking these
20 as exhibits?
21 MR. BLANTON: Not the designation. I figured
22 it was more pleading. The depositions I can mark for
23 identification purposes if you want, but they're just
24 original transcripts.
246
1 HEARING OFFICER: Okay.
2 MR. BLANTON: And I think it -- to have the
3 deposition be an exhibit and then have exhibits to the
4 exhibit might complicate it. I think technically it's
5 just testimony by deposition.
6 HEARING OFFICER: Okay. Let's --
7 MR. BLANTON: But I'll do whatever you think
8 will keep it clear.
9 HEARING OFFICER: Let's see what the other
10 parties have to say first on the record. Mr. Ettinger, do
11 you have any objection to this course of action?
12 MR. ETTINGER: Not in general. This was on
13 the deposition exhibits? No, I have no objection to that.
14 HEARING OFFICER: Right. I'm just talking
15 about the depositions that are being offered as evidence.
16 MR. ETTINGER: I did just want to note that my
17 only designation -- I looked at his Black Beauty's
18 designations yesterday. I gather they're withdrawing the
19 designations of Ellis.
20 The only testimony that I wanted to designate
21 in addition to what they were designating were certain
22 lines on page 87 of the Glosser deposition, lines 11
23 through 16, so the designation of testimony now on Glosser
24 is now page 87, line 1 through 16.
247
1 And I guess if Mr. Blanton says what he's --
2 does what he says he was going to do, then I guess he's
3 going to color those six lines in blue, and the rest of it
4 will be in yellow.
5 MR. BLANTON: Yes.
6 HEARING OFFICER: Mr. Sofat, do you want any
7 special color for yourself? Do you have anything you want
8 to add to the depositions?
9 MR. SOFAT: No, the agency has no objection or
10 comment.
11 HEARING OFFICER: You have no objection to the
12 way we're going to do this. Mr. Ettinger?
13 MR. ETTINGER: I just wanted to make sure
14 you're not withdrawing any of the designations you made
15 earlier of Dr. Glosser's deposition.
16 MR. BLANTON: No.
17 MR. ETTINGER: Okay.
18 HEARING OFFICER: Okay. Yeah, I don't have a
19 problem -- I'm trying to figure out the best way to do
20 this for the Board.
21 MR. BLANTON: We can call the deposition
22 itself a hearing exhibit. I don't have a problem with
23 that if that helps for identification purposes. But I
24 want to make -- it is testimony by deposition. I don't
248
1 mind identifying it for the record for identification
2 purposes as an exhibit, but I think it has a different
3 quality of evidence.
4 HEARING OFFICER: No, I understand that. It's
5 just it's not really a pleading, and it's not -- I don't
6 know where else to categorize it. I know it will be part
7 of the record; I'm accepting it as part of the record.
8 And let's call them -- just for identification and ease of
9 use purposes, let's make each one of the depositions a
10 hearing exhibit. And they don't have to be Black Beauty
11 Coal Company hearing exhibits because Mr. Ettinger is also
12 offering part. I would designate them Hearing Officer
13 Exhibits 1, 2 and 3 if that's --
14 MR. BLANTON: That would be fine.
15 MR. ETTINGER: That's fine. In fact, some of
16 the testimony that Mr. Blanton's going to color in yellow
17 I will also refer to, so --
18 MR. BLANTON: And a lot of it's -- some of
19 it's Mr. Ettinger's questions, so --
20 HEARING OFFICER: No, I understand. I just
21 don't want them floating out there without any tag
22 attached to them.
23 MR. BLANTON: All right. Well, then in that
24 case, the first one would be the deposition of Caroline
249
1 Taft Grosboll, G-r-o-s-b-o-l-l, and it will be identified
2 as HO 1. In addition, we will be offering Deposition
3 Exhibits 1, 3, 4 --
4 HEARING OFFICER: You don't have to separately
5 identify -- I want you to identify them, but you don't
6 have to mark them. We'll make them one group exhibit.
7 MR. BLANTON: They're already marked as
8 individually.
9 HEARING OFFICER: Right. As deposition
10 exhibits, right?
11 MR. BLANTON: And as trial exhibits.
12 HEARING OFFICER: Oh, okay.
13 MR. BLANTON: So Deposition Exhibit 1 has been
14 marked as BBCC 16. Deposition Exhibit 3 has been marked
15 as BBCC 17. Deposition Exhibit 4 has been marked as BBCC
16 18. Deposition Exhibit 5 has been marked as BBCC 19.
17 Deposition Exhibit 6 has been marked as BBCC 20.
18 Deposition Exhibit 15 has been marked as BBCC 21. And
19 Deposition Exhibit 17 has been marked as BBCC 22.
20 Deposition Exhibit 37 has been marked as BBCC 23.
21 At this time, we offer Hearing Officer
22 Exhibit 1 and BBCC Exhibits 16 through 23.
23 HEARING OFFICER: 1 has already been stated
24 that there's no objection. I'll admit that.
250
1 Mr. Ettinger, you didn't have any objection to
2 the various attachments to the deposition, did you?
3 MR. ETTINGER: No.
4 HEARING OFFICER: Mr. Sofat?
5 MR. SOFAT: No.
6 HEARING OFFICER: All right. I'm going to
7 admit BBCC Exhibits 16 through 23 as well.
8 (Whereupon, HO 1 and BBCC Exhibit Numbers 16
9 through 23 were marked for identification.)
10 MR. BLANTON: May I provide these to you?
11 HEARING OFFICER: Yes. I also have all the
12 exhibits from yesterday. You may take them at your
13 leisure.
14 MR. BLANTON: Second, Black Beauty offers, as
15 Hearing Officer Exhibit 2, HO 2, the deposition of Deanna
16 Glosser for those portions that we had designated and that
17 Mr. Ettinger designated. This is a deposition taken
18 April 11, 2001.
19 In addition, along with that deposition, we
20 offer Deposition Exhibit Glosser 1 which has been marked
21 as BBCC 24, Glosser Exhibit 3 which has been marked as
22 BBCC 25, Glosser Exhibit 4 which has been marked as BBCC
23 26, Glosser Exhibit 5 which has been marked as BBCC 27,
24 and Glosser Exhibit 19 which has been marked as BBCC 28.
251
1 So, we offer Hearing Officer Exhibit 2 and BBCC 24 through
2 28.
3 HEARING OFFICER: Any objection to those,
4 Mr. Ettinger?
5 MR. ETTINGER: No.
6 HEARING OFFICER: Mr. Sofat?
7 MR. SOFAT: No.
8 HEARING OFFICER: Those will all be admitted.
9 (Whereupon, HO 2 and BBCC Exhibit Numbers 24
10 through 28 were marked for identification.)
11 MR. BLANTON: Provide those to the Hearing
12 Officer, please?
13 Third, we offer the deposition of Robert Moore
14 in his capacity as the designee of Prairie Rivers Network,
15 the petitioner. This deposition transcript has been
16 marked as Hearing Officer Exhibit 3. We offer the
17 designated portions that we've already identified plus
18 Exhibit 2 -- Deposition Exhibit 2 which has been marked as
19 BBCC 29, Deposition Exhibit 3 which has been marked as
20 BBCC 30, Deposition Exhibit 4 which has been marked as
21 BBCC 31, Deposition Exhibit 5 which has been marked as
22 BBCC 32, Deposition Exhibit 6 which has been marked as
23 BBCC 33, Deposition Exhibit 7 which has been marked as
24 BBCC 34. We offer all of those.
252
1 HEARING OFFICER: Any objection,
2 Mr. Ettinger?
3 MR. ETTINGER: No.
4 HEARING OFFICER: Mr. Sofat?
5 MR. SOFAT: No.
6 HEARING OFFICER: Those are all admitted as
7 well.
8 (Whereupon, BBCC Exhibit Numbers 29 through 34
9 were marked for identification.)
10 HEARING OFFICER: Is that it on the
11 depositions?
12 MR. BLANTON: Yes. I would, to complete the
13 record, note that all -- Mr. Moore's deposition and
14 Ms. Glosser's deposition also were taken pursuant to
15 stipulation that they could be taken both for discovery
16 and evidentiary purposes. And I would further note that
17 the parties stipulated that Mr. Moore's deposition was
18 taken both of him as an individual and in his
19 representative capacity as the designee for Prairie
20 Rivers.
21 HEARING OFFICER: Okay. That's understood.
22 MR. BLANTON: Give those to the Hearing
23 Officer.
24 HEARING OFFICER: Thank you. I do want to
253
1 clarify this. I've accepted the pleading entitled Black
2 Beauty Coal Company's Designation of Deposition Testimony.
3 We're not going to have any response to that,
4 Mr. Ettinger, filed?
5 MR. ETTINGER: No.
6 HEARING OFFICER: Mr. Sofat, are you going to
7 file a response?
8 MR. SOFAT: To --
9 HEARING OFFICER: It's the designation of
10 deposition testimony. I'm accepting this as a pleading.
11 We're going to file it with the Board.
12 MR. SOFAT: Okay. No, we won't have any.
13 HEARING OFFICER: Generally, under procedural
14 rules you have fourteen days to respond, but of course
15 we're not going to allow that because we're in hearing
16 now, but give you a chance to orally respond if you wanted
17 to. And I take it both of you do not want to?
18 MR. SOFAT: That is true.
19 HEARING OFFICER: That being said, I'll accept
20 that; I'll take it back to the Board. We've got these
21 three deps. I am correct, Mr. Blanton, am I not, that the
22 only parts of the deps being offered into evidence are the
23 parts designated -- the designated portions contained in
24 the pleading here?
254
1 MR. BLANTON: That's correct. And those will
2 be highlighted, and the originals have been provided to
3 you.
4 HEARING OFFICER: With yellow for Black Beauty
5 Coal and blue for Prairie Rivers. And if Mr. Sofat
6 changes his mind, we'll give him greens perhaps.
7 MR. BLANTON: Right.
8 MR. SOFAT: Thank you.
9 MR. BLANTON: At this point, I would ask leave
10 to withdraw the originals of Ms. Grosboll and Mr. Moore
11 from the record so that I can do that marking.
12 HEARING OFFICER: Yes. There's no objection
13 to that, right, Mr. Ettinger?
14 MR. ETTINGER: No, there is not.
15 HEARING OFFICER: And Mr. Sofat?
16 MR. SOFAT: No.
17 MR. BLANTON: I will take those at the end of
18 the hearing.
19 HEARING OFFICER: I will leave them, and you
20 can have them and return them when you get that done.
21 MR. ETTINGER: Mr. Hearing Examiner, may we
22 stop for like thirty seconds? I would just like to ask
23 Mr. Blanton a question regarding something that he and I
24 talked about on the phone earlier.
255
1 HEARING OFFICER: Sure. Let's go off the
2 record.
3 (A discussion was held off the record.)
4 HEARING OFFICER: Back on. All right,
5 Mr. Blanton. If that's all the preliminary matters we
6 have to address -- oh, one more.
7 MR. BLANTON: That's all the depositions. At
8 this point, Black Beauty requests the Board and the
9 Hearing Officer, pursuant to 35 Illinois Administrative
10 Code, Section 101.630, to take official notice of those
11 matters that are stated in Black Beauty Coal Company's
12 request for official notice which I will tender the
13 original for filing with you at this time. Copies of this
14 were served upon the other parties on April 30.
15 For the record, we are asking the Board to
16 take official notice of the following matters: A
17 proceeding before the Board entitled In the Matter of
18 Proposed Amendments to Title 35, Subtitle D, Mine-Related
19 Water Pollution, Chapter One, Number R 84-29, a proceeding
20 before the Illinois Pollution Control Board.
21 We ask the Board to take official notice of an
22 earlier proceeding entitled In the Matter of Proposed
23 Amendments to Title 35, Subtitle D, Mine-Related Water
24 Pollution, Chapter One, Parts 405 and 406, Number R 83-6
256
1 before the Illinois Pollution Control Board.
2 We request the Board to take official notice
3 of its earlier proceedings entitled In the Matter of
4 Proposed Amendments to Chapter Four of the Regulations of
5 the Illinois Pollution Control Board, Numbers R 76-20 and
6 77-10 before the Illinois Pollution Control Board. May I
7 approach the bench for filing this?
8 HEARING OFFICER: Yes.
9 MR. BLANTON: I note that this request had an
10 additional item which has been deleted, and we are not
11 requesting notice of that matter, just the three that I
12 identified.
13 HEARING OFFICER: Mr. Ettinger, are you going
14 to have any response to this official notice? Do you want
15 to see it?
16 MR. ETTINGER: Well, yeah. Mr. Blanton says
17 it was served April 30, but I was down here April 30 so I
18 suspect he served it on my office in Chicago.
19 MR. BLANTON: Yeah, we faxed it yesterday.
20 HEARING OFFICER: Are these all final orders,
21 Mr. Blanton?
22 MR. BLANTON: We want the Board to take notice
23 of the entire proceedings. I have two matters that I do
24 want to offer as -- or three items that specifically I
257
1 want to offer as independent, freestanding exhibits from
2 these proceedings but --
3 HEARING OFFICER: Yeah, I don't know that the
4 Board can take notice of the entire prior proceeding.
5 That encompasses, in some situations, seven or eight years
6 worth of status calls and motions and rule-makings and
7 public comments, and I don't know that that would be
8 feasible for the Board to take official notice of.
9 Clearly, they can take official notice of --
10 MR. BLANTON: Designated portions.
11 HEARING OFFICER: -- well, designated portions
12 and matters that are in the original Board record.
13 MR. BLANTON: I would be happy if -- we are
14 requesting them to take notice of the whole proceedings.
15 I would be happy to identify specifically next week, when
16 I'm back and have a chance those specific portions that we
17 wish to actually be taken account of before briefing is
18 done, so people will know at least what it is we're
19 talking about. But I -- we just found out about these
20 things; I have not had a chance to go through the whole
21 proceedings to find out what's, what's in there.
22 HEARING OFFICER: Right. You understand my
23 reticence.
24 MR. BLANTON: Sure. Sure.
258
1 MR. ETTINGER: Well --
2 HEARING OFFICER: Mr. Ettinger, my proposal
3 would be that we reserve ruling on this and allow you to
4 respond when we know what you're responding to.
5 MR. ETTINGER: Right. I guess just to -- as
6 far as the Board opinions go, the final opinions in these
7 matters, I certainly -- I don't believe that the Board
8 needs to take official notice of its own opinions.
9 As to documents within the record, I'm a
10 little concerned here just as to what they might be being
11 offered for. The fact that they're part of the record I
12 have no -- assuming that they are part of the record in
13 these proceedings, I assume that they can take official
14 notice of things in their own records, assuming they still
15 are in those records, but I --
16 HEARING OFFICER: They would be microfiched.
17 MR. ETTINGER: Yes, but I would still wonder
18 -- to take official notice that a public comment was made
19 in 1984 as being in the record is one thing. But then to
20 draw some inference from that would raise another set of
21 issues --
22 HEARING OFFICER: Right. Well, I do want to
23 state I think the Board can and will take official notice
24 or, you know, I will grant that the Board -- Board views
259
1 and that we do take official notice of certain things.
2 And I will tell you that those will -- anything in the
3 Board's record, the original record, is clearly something
4 the Board can take official notice of. You know, and the
5 weight to be given to that, Mr. Ettinger, if it's a public
6 comment from 1976, you know, is something that the Board
7 will have to decide on its own, and I think the Board will
8 indicate the appropriate weight.
9 But I do think that something -- that we need
10 to know exactly what we're being asked to take official
11 notice of before I take official notice of anything, and
12 then that would give you an opportunity to respond to that
13 as well.
14 Mr. Sofat, did you have any --
15 MR. SOFAT: The agency will reserve its
16 comment then until --
17 HEARING OFFICER: That sounds good. Well, I
18 will accept this pleading. And when we know what certain
19 portions you want the Board to take official notice of,
20 we'll revisit it.
21 MR. BLANTON: In that light -- well, I'll see
22 what you do. We offer at this time as a separate exhibit
23 marked BBCC 35 the opinion of the -- first notice opinion
24 of a proposed rule in matter R 83-6 dated December 15,
260
1 1983, in the proceeding entitled In the Matter of Proposed
2 Amendments to Title 35, Subtitle D, Mine-Related Water
3 Pollution, Chapter One, Parts 405 and 406. I have copies
4 for other counsel. I'll do all three of them because I
5 think we'll have the same issues, if any.
6 Second, we've marked as a separate Exhibit
7 BBCC 36, which is the opinion -- proposed opinion of the
8 Board dated January 24, 1980, in the matter of proposed
9 amendments to chapter four of the regulations of the
10 Illinois Pollution Control Board. I have copies for
11 Counsel.
12 HEARING OFFICER: What was the number on that?
13 MR. BLANTON: R -- I'm sorry. This was number
14 R 76-20 and 77-10. And if I may characterize what these
15 are and what the context was --
16 HEARING OFFICER: No, excuse me. You were
17 offering 77-10 as Exhibit 37?
18 MR. BLANTON: No, it's a single -- it's a --
19 Exhibit 37 -- excuse me, Exhibit 36 relates to two
20 proceedings --
21 HEARING OFFICER: Understood.
22 MR. BLANTON: -- 76-20 and 77-10. What these
23 documents are are opinions of the Board discussing the
24 status of coal mines in Illinois. The 76 and -- 76-20 and
261
1 77-10 documents relate to the Board's rule that was
2 officially temporary that, for practical purposes,
3 exempted coal mines from water quality standards generally
4 applicable to sources in Illinois. The proceeding R 83-6
5 is the proceeding that led to the adoption of the Subtitle
6 D regulations which formalized and made permanent the rule
7 found now at 406.203 by which coal mines might opt out of
8 the water quality standards under Subtitle C and fall
9 instead under technology base standards under Subtitle D,
10 so that's why they are relevant to this proceeding.
11 The third item in connection with these is --
12 we've marked as Exhibit BBCC 37, an excerpt from the
13 proceedings in the R 84-29 case. This is found -- this is
14 the testimony of Allen, A-l-l-e-n, Oertel, O-e-r-t-e-l.
15 Mr. Oertel was, at that time, an environmental protection
16 specialist with the land reclamation division in the
17 Illinois Department of Mines and Minerals, and he was
18 testifying on issues that are directly relevant to this
19 proceeding which is -- I believe this was a sediment basin
20 design proceeding.
21 And one of the issues was relative
22 contributions of sediment and total suspended solids and
23 settleable solids in sediment basins and otherwise. And
24 he is addressing that issue in this testimony.
262
1 Unfortunately, I have only the original. This is
2 available at the Board on microfiches. The copy we were
3 able to get through the Board is barely legible, and so
4 far we have not been able to photocopy it legibly; so when
5 I give it to you, you'll have the only one of them that we
6 have now. We'll have to get more copies, I think, from
7 the Board reading directly from the microfiche reader.
8 But at this point, may I approach the bench? And I have
9 these three exhibits tendered.
10 HEARING OFFICER: I have some thoughts on
11 these, but, Mr. Ettinger, do you want to go first here on
12 BBCC 35 which is --
13 MR. ETTINGER: Is that all of them or --
14 HEARING OFFICER: No, I'm going to do them one
15 at a time. Or do you have --
16 MR. ETTINGER: Well, I have separate thoughts
17 on Mr. Oertel's statement or testimony.
18 HEARING OFFICER: Let's do 35 and 36 then
19 which are court orders.
20 MR. ETTINGER: These are Board orders. I am a
21 little surprised to see them being offered as exhibits. I
22 see these as in the nature of legal authority or authority
23 of the Board. And I certainly will feel free to cite
24 legal authority in this proceeding without offering it as
263
1 an exhibit, so I do thank Mr. Blanton for making copies of
2 these opinions for us so that we can read them and prepare
3 better. And I -- if you wish to admit them as exhibits, I
4 have no objection to them being admitted to exhibits, but
5 I don't think it's necessary.
6 HEARING OFFICER: Mr. Sofat? Let's hit 35 and
7 36, which are the Board orders, first.
8 MR. SOFAT: The agency would not have any
9 objection to the final order or the opinion in the docket
10 numbers that have been identified today.
11 HEARING OFFICER: Okay. I'll tell you what
12 I'm going to do with these. I'm going to deny them as
13 exhibits, but we will take official notice of both of
14 them. The reason I'm denying them is I've got here
15 photocopies of something printed off from Lexis. I don't
16 know if that's the official Board order which we have at
17 the Board offices in Chicago. I'm not denying them for
18 any other reason aside from the fact that if the Board is
19 going to look at its Board orders, I want them to be
20 looking at the original Board order which they have in
21 their office in Chicago. And I'm not entirely sure, going
22 through this in this minute and a half, that these are the
23 correct ones. I know you printed them off of Lexis, but
24 we would have to lay a foundation and everything like that
264
1 as to how that went about. But I am going to have the
2 Board take official notice of these, and we can refer to
3 them as Exhibits 35 and 36.
4 MR. BLANTON: And with that ruling then, we
5 request leave to tie them into the original if we can
6 demonstrate that these are true and accurate copies of the
7 official opinion.
8 HEARING OFFICER: Yeah, sure, you definitely
9 have leave to do that. I don't know that you need to
10 because these are -- you know, I am taking official notice
11 of Docket Number R 83-6, docket A, the order promulgated
12 by the Board on December 15th, 1983. I don't know what
13 other purpose you would need these to serve; but if you
14 have another purpose that you envision, I would be more
15 than welcome to let you do that.
16 MR. BLANTON: I guess my concern about not
17 having them -- I mean, I'm requesting official notice.
18 Frankly, the exhibit, while it's for identification
19 purposes, essentially like we did for the depositions --
20 HEARING OFFICER: Correct.
21 MR. BLANTON: -- I just want to make sure
22 that, contrary to Mr. Ettinger's suggestion, that these
23 are more than legal authority. These are findings of fact
24 and policy decisions that serve as guidance for the agency
265
1 in addressing the issues that are in this case. And
2 further, they are foundation. One of them is foundation
3 for another exhibit that we'll be offering to Mr. Fry.
4 So, they are not just legal authority. They are factual
5 findings, and they serve as foundation documents for other
6 evidence. We offer them for all purposes for which
7 official notice may be -- those matters for which judicial
8 notice may be taken and, therefore, official notice can be
9 taken by the Board. We would offer them for all such
10 purposes.
11 HEARING OFFICER: Right. It's my
12 understanding that official notice -- when I take official
13 notice of something, it's as -- it's in the record as an
14 exhibit so they have the same standing to my mind. And if
15 I'm incorrect, I would be happy to have someone educate me
16 on that particular point of law.
17 MR. BLANTON: I just never found it to be
18 unhelpful to be redundant because it's better to find out
19 that you did too much rather than too little, too late.
20 HEARING OFFICER: I understand. I'm not
21 trying to be facetious. I just want you to know they
22 stand on the same footing as an exhibit, so I don't think
23 there's any reason for you to try to tie these in and make
24 them exhibits by laying the appropriate foundation and
266
1 whatnot. But like I say, you definitely have leave to do
2 that.
3 So, that takes us to BBCC Exhibit Number 37
4 which is the testimony of Alan Oertel. I'm assuming that
5 this is testimony from R 84-29, the hearing?
6 MR. BLANTON: Yes.
7 HEARING OFFICER: But, Mr. Ettinger, comments,
8 objections?
9 MR. ETTINGER: I really have to reserve making
10 any comment on this since I haven't seen it, and I gather
11 we don't even have a legible copy today. So --
12 HEARING OFFICER: It's semi legible.
13 MR. ETTINGER: Okay.
14 HEARING OFFICER: But I understand.
15 MR. ETTINGER: I haven't seen it so --
16 HEARING OFFICER: Are you objecting to it at
17 this point in time?
18 MR. ETTINGER: I'm just saying I'll have to
19 see it and then decide whether we object or not.
20 HEARING OFFICER: Here you go because I'm
21 going to rule on it now.
22 MR. BLANTON: I would recommend that you clean
23 your glasses before you start.
24 (A pause was had in the record.)
267
1 MR. ETTINGER: I guess I am going to object
2 for a variety of reasons. First of all, as I said, I
3 haven't read this. I don't know that the -- this is part
4 of the record, to my knowledge, of the permit. It was
5 not, to my knowledge, relied on as a document by any of
6 the permit writers. I don't know at this point exactly
7 what purposes it's going to be offered for. Perhaps
8 there's something in here in the nature of a learned
9 treatise or something that some expert witness could link
10 up. But at this point, I am looking at a long document
11 that I don't know what it's being offered from -- for in
12 an unrelated proceeding. It doesn't seem to be admissible
13 under the Illinois statute governing third-party appeals
14 that I can see, and I am unclear what it's being offered
15 for.
16 MR. BLANTON: I can respond to that.
17 HEARING OFFICER: Let's let Mr. Sofat see if
18 he has any comments.
19 MR. SOFAT: I would say that the agency
20 believes that if it was part of the Board proceedings,
21 then they don't have objection to that.
22 HEARING OFFICER: Mr. Blanton? I'm sorry,
23 Mr. Sofat, I didn't mean to cut you off.
24 MR. SOFAT: That's it.
268
1 HEARING OFFICER: I don't have an objection to
2 its authenticity. If it's part of the Board proceedings,
3 I agree that it's authentic. There's a key word here, and
4 you both have said "if." At this point in time,
5 Mr. Blanton, I don't think that we know it is part of the
6 Board proceedings. I don't think the appropriate
7 foundation has been laid yet, so I will deny it.
8 MR. BLANTON: I'll deal with the foundation
9 question first. To the extent that we need chain of
10 custody, the way this document was generated, I called
11 Pierre Talbert, who's an attorney at the Dikeman, Gosset
12 (phonetic) firm in Chicago a couple, three days ago when I
13 learned about this document, requested him to have -- make
14 arrangements for a member of that -- or an employee of
15 that firm to go to the Pollution Control Board, look up
16 this proceeding, go specifically to find the testimony of
17 Alan Oertel taken December 21, 1984, from the microfiche
18 where it is stored, which is information then provided to
19 us by the clerk of the Board or the staff of the Board. I
20 don't have with me the name of the staff attorney who
21 talked to my paralegal, Eli Levenstein, to tell us that's
22 how we could get that, but I can provide that if I need
23 to.
24 The next day I received a fax copy from
269
1 Mr. Talbert of this material. The next day I received by
2 overnight messenger, by FedEx, the document that we are
3 offering. I can give testimony about what I think about
4 Pierre's reliability, but I don't think that's necessary.
5 That's the foundation I have.
6 The relevance of this is Mr. Oertel, at that
7 time, was an employee of the agency, of the environmental
8 agencies in the state of Illinois. Early in his
9 testimony, he testified under oath in this Board
10 proceeding, which I believe dealt with proposed rules
11 about the size of sediment basins at coal mines, that
12 agriculture was the predominant source of total suspended
13 solids in the waters of Illinois and coal-mining regions.
14 There is further testimony through the document relating
15 to the soil, the agencies in the state who have
16 responsibility for managing soil, how they classified the
17 erosion potential of agricultural lands compared to
18 undisturbed lands compared to mining lands.
19 His testimony basically regarding a comparison
20 of the amount of soil that is put in Illinois streams
21 annually from agricultural runoff from storm water
22 compared to those with sediment basins relevant at that
23 time to the issue of whether the sizing, the required
24 sizing of sediment basins could be reduced or whether it
270
1 needed to have something else, some different criteria.
2 The testimony is relevant to this proceeding because there
3 is a concern voiced by the petitioner that, among other
4 things, total suspended solids from storm water runoff at
5 this mine will degrade and have -- degrade the quality of
6 water in the unnamed tributary and the Little Vermilion
7 River and that that may have an impact on biota.
8 Mr. Oertel's testimony is directly relevant to that.
9 There are also issues in this case about the
10 effect of the 3:1 ratio, whether the mine will be
11 contributing cleaner water than the water that will be
12 coming otherwise. It's directly relevant to that.
13 It's also relevant to Mr. Frevert's testimony.
14 It's relevant to the entire record. Petitioner,
15 apparently, thinks that every time there's an NPDES
16 permit, the agency must have amnesia for its collective
17 knowledge and experience in these issues and reinvent the
18 wheel on every issue that every citizen raises. And this
19 goes to the heart of that general concept. It's clear
20 that persons like Mr. Frevert, who has been doing this for
21 30 years and his staff who have been doing it for years
22 with an issue that's been addressed in this state for at
23 least 25 years, are entitled to look at things that are
24 obvious to knowledgeable people in this field and rely on
271
1 it rather than generating staff memo that can then be put
2 in an administrative record.
3 And this goes fairly powerfully to that point
4 which is at the heart of whether or not the agency had an
5 adequate basis to determine that this coal mine will not
6 be causing the problem if it complies with its permit.
7 HEARING OFFICER: Anything further,
8 Mr. Ettinger?
9 MR. ETTINGER: I think Mr. Blanton has stated
10 the issue fairly well, and I think he stated it in a way
11 that suggested this should not be admitted because our
12 position, of course, is not that they need to reinvent the
13 wheel every time. Our position is that the -- that the
14 public needs to be able to participate in the process and
15 see what they're relying on. And if, in fact, that does
16 rely -- need a staff memo or something so that the public
17 can effectively participate in the process.
18 If this document had been offered as part of
19 the record prior to the public hearing that was held in
20 this case, we could have read it then, the public would
21 have been able to participate, and the public would have
22 been able to see this document for whatever it's worth.
23 And yes, precisely, that is -- that's the legal issue that
24 the Board has to decide which is whether the agency's
272
1 allowed to rely on its unstated, unsubstantiated -- in the
2 record, on this permit -- collective memory, but the fact
3 that this document is out there that could have been put
4 into the record below if they had done so really doesn't
5 help us with this proceeding.
6 HEARING OFFICER: Anything, Mr. Sofat?
7 MR. SOFAT: I just object to the --
8 Mr. Ettinger's understanding of agency record that we
9 filed with the Board. We are required to file what was in
10 front of the permit reviewer, not the regulations or the
11 Board opinions. We have never done that before. And
12 other than that, as to this document, I don't think we
13 have any objection.
14 HEARING OFFICER: I'm going to rule. I know,
15 Mr. Blanton, you want to jump up, but I want to get things
16 moving here, so I've pretty much heard enough. I'm still
17 denying this. I don't think appropriate foundation's been
18 laid. I understand, Mr. Blanton, you have represented how
19 you obtained this document, but that's still not
20 appropriate foundation. If we let an attorney assert how
21 things were brought into the record or how things -- if we
22 let the attorney provide evidence for exhibits, we'd have
23 to let everything in. We need the foundation; we need the
24 testimony for the people who actually did what you say
273
1 they did.
2 In terms of -- I'm not going to grant an
3 official notice. I don't think it's something that the
4 Board may take official notice of. I would direct you to
5 section 101.306, entitled Incorporation of Documents by
6 Reference, which allows the Board to incorporate materials
7 from the record of any Board docket into the proceeding:
8 "Upon separate written request of any person or its own
9 issue of, the Board or Hearing Officer may incorporate
10 such materials, and the person seeking incorporation must
11 file with the Board four copies of the material to be
12 incorporated, and then the Board or the Hearing Officer
13 may approve or reduce the number of copies if necessary."
14 I think that's what you're looking for here. I think that
15 R 83-6 and R 76-20 and R 77-10, BBCC's Exhibits 35 and 36,
16 which we did take official notice of, that it's possible
17 that could be included under 101.360 of things we can take
18 official notice of even though that should probably be
19 addressed in section 101.46, Incorporation of Documents by
20 Reference, as well.
21 I think that can be arguably within the
22 specialized knowledge and experience of the Board. So, I
23 did that, but I'm not willing to extend that to testimony
24 from a prior proceeding which may or may not be relevant.
274
1 So, I'm denying that exhibit in total.
2 And we can move on. Anything further?
3 MR. BLANTON: No. In view of that ruling, I
4 request leave to have an extension to have a period of
5 time to and including whatever the date of May 9th to ask
6 the Board in writing to incorporate by reference the
7 testimony of Alan Oertel dated December 21, 1984, in the
8 proceeding R 84-29 and have it incorporated into this
9 case.
10 HEARING OFFICER: Yeah, I would grant you
11 leave to do that. Mr. Ettinger, Mr. Sofat, any objection
12 to that?
13 MR. SOFAT: No objection.
14 HEARING OFFICER: We're going to want it
15 before your reply brief or your response -- or actually
16 it's your post hearing brief so we're going to need it
17 before you do a post hearing brief.
18 MR. ETTINGER: I would think so. And we
19 haven't talked about a briefing schedule yet. We should
20 probably do that off the record when we do at least
21 initially, but there may have to be some scheduling
22 decisions made.
23 HEARING OFFICER: Right. My only reticence,
24 now that I have corrected my own internal error about
275
1 who's going to file the first brief, is that since
2 Mr. Ettinger has to file the first brief -- I would think
3 you would agree -- he would need to know what's going to
4 be in the record before he files his brief. If we wait
5 till May 9th for you to file your motion for incorporation
6 of documents by reference, we're going to be pushing
7 things pretty far back into the briefing schedule. And,
8 of course, you have the keys to that, Mr. Blanton.
9 And as I've said before, you can always
10 provide a limited waiver of the statutory decision
11 deadline, and then it's not an issue. However, at this
12 point, it is an issue. So in light of that, I'm going to
13 have to revisit my ruling and deny the motion for leave
14 for extension of time. I just don't think there's time to
15 get it done and still have a proper briefing schedule.
16 MR. BLANTON: All right. I'll take that up
17 with Black Beauty, and we'll see whether we --
18 HEARING OFFICER: You still have the
19 opportunity to file a motion for leave to file and explain
20 why you need it in. And, you know, that would be
21 something the Board or I would consider.
22 MR. BLANTON: All right.
23 HEARING OFFICER: At this point in time I
24 can't do it, though.
276
1 MR. BLANTON: That's fine.
2 HEARING OFFICER: Now, any further matters of
3 interest?
4 MR. BLANTON: Black Beauty calls Dean Vlachos
5 as its first witness.
6 HEARING OFFICER: Is Dean Vlachos here? Sir,
7 why don't you come up and have a seat in this chair right
8 there?
9 Let's go off the record.
10 (A discussion was held off the record, and a
11 recess was taken.)
12 HEARING OFFICER: All right. We are back on
13 the record after a short recess. It's approximately 10:08
14 a.m., and we are proceeding with Mr. Blanton and the Black
15 Beauty Coal Company's case in chief.
16 MR. BLANTON: Thank you, Mr. Knittle. We have
17 a new configuration for witnesses today, and I would ask
18 whether it's all right for me to be seated to question the
19 witnesses?
20 HEARING OFFICER: Yeah, that would be fine.
21 Let's swear him in, please.
22 (Witness sworn.)
23 DEAN VLACHOS,
24 called as a witness, after being first duly sworn, was
277
1 examined and testified upon his oath as follows:
2 DIRECT EXAMINATION
3 BY MR. BLANTON:
4 Q. State your name.
5 A. Dean Vlachos.
6 Q. Where do you live, Mr. Vlachos?
7 A. I live at 1968 South Vivian Street, Lakewood,
8 Colorado.
9 Q. What's your occupation or profession?
10 A. I am an environmental engineer.
11 Q. Are you affiliated with any professional
12 organization?
13 A. No, I am not currently affiliated with any
14 professional organization.
15 Q. I'm sorry, for your employment?
16 A. For my employment, yes, I am. I am employed
17 by The Advent Group.
18 Q. What is The Advent Group?
19 A. The Advent Group is an environmental
20 engineering consultant group.
21 Q. Where is it based?
22 A. It is headquartered in Nashville, Tennessee.
23 Q. And give us some idea of the size of the
24 organization.
278
1 A. The company has approximately 35
2 professionals.
3 Q. And what's the general nature of The Advent
4 Group's work?
5 A. Our group -- our work focuses primarily in
6 the areas of industrial wastewater management as well as
7 environmental compliance. We have a staff of engineers
8 and scientists available.
9 Q. How long have you been an environmental
10 engineer?
11 A. I have been employed as an environmental
12 engineer since 1989, for about 12 years.
13 Q. You have in front of you a document that's
14 been marked as Black Beauty Exhibit -- I don't remember
15 the -- 38?
16 A. Yes, I do.
17 Q. What is that? What is that?
18 A. It is a copy of my curriculum vitae.
19 Q. And does this accurately set forth your
20 educational, professional background and accomplishments?
21 A. Yes, it does.
22 MR. BLANTON: We offer BBCC Exhibit 38.
23 HEARING OFFICER: Mr. Ettinger, any objection
24 to BBCC 38?
279
1 MR. ETTINGER: No.
2 MR. SOFAT: No objection.
3 HEARING OFFICER: That's admitted.
4 (Whereupon, BBCC Exhibit Number 38 was marked
5 for identification.)
6 BY MR. BLANTON:
7 Q. Mr. Vlachos, as I understand it, you became
8 involved relatively -- not too long ago in the issues of
9 whether an NPDES permit should be issued to Black Beauty
10 Coal Company with respect to its new Vermilion Grove
11 Mine; is that right?
12 A. That's correct.
13 Q. How did you get involved?
14 A. I was contacted by Black Beauty Coal
15 personnel, specifically Mr. Eric Fry, in early October of
16 2000.
17 Q. And what did you understand from that initial
18 contact to be the issue that Mr. Fry might be interested
19 in having you address?
20 A. Mr. Fry was interested in procuring our
21 company's services to do an analysis for a permitting
22 project that was currently going on for the Vermilion
23 Grove Mine.
24 Q. And what was the nature of the project?
280
1 A. The nature of the project was to essentially
2 establish and assess the water quality impacts pre and
3 post discharge from the new mine.
4 Q. Did you ultimately do that?
5 A. Yes, we did.
6 Q. And what was your role in that project?
7 A. I was the lead engineer and project manager
8 on that project, responsible for all the analysis and
9 reporting.
10 Q. Did you prepare a final report of that
11 project?
12 A. Yes, I did.
13 Q. I'm going to show you some materials. This
14 is a notice of filing dated -- sorry, don't have the
15 date, but it's the Environmental Protection Agency's
16 motion for leave to amend and amended record. Attached
17 to it are some materials that are marked as pages 981
18 through 997 in the administrative record in this case.
19 Is that a copy of the report you prepared?
20 A. Yes, it is.
21 Q. Could you -- after you had had the initial
22 contact from Mr. Fry, what was the first thing you did
23 after that in connection with this project?
24 A. One of the first things we wanted to do is to
281
1 understand the basis of the project, so at that time we
2 actually had some communications between Mr. Fry and
3 myself as well as Mr. Toby Frevert with the IEPA to
4 understand the goals and objectives of the project before
5 we commenced calculations.
6 Q. And what did you learn in that regard from
7 those two persons?
8 A. What we learned was our confirmation that we
9 would be looking at an analysis to understand the water
10 quality impacts -- potential water quality impacts of the
11 discharge from outflow 003 from the mine.
12 Q. And based upon what you learned from them,
13 did you develop essentially a project concept on how you
14 would go about what you were going to do?
15 A. That's right. We had a preliminary concept
16 actually established just based on my initial
17 conversations with Mr. Fry, and at that point we also
18 presented those initial concepts to IEPA.
19 Q. And what were your initial concepts?
20 A. Our initial concept was that we wanted to
21 take a look at this in a simplified mass balance approach
22 to understand what the water quality instream impacts --
23 which primarily can be ascertained in terms of instream
24 concentrations -- would be during certain storm events
282
1 resulting in the discharge from the mine.
2 Q. What's a simple mass balance concept?
3 A. A simple mass balance concept is basically
4 where we're looking at what would be -- what would be the
5 effect or the result of mixing the discharge from outfall
6 003 that has been caused by a storm event with the
7 unnamed tributary upstream flow. In other words, when
8 those two water bodies combine, they will mix together.
9 Their mass will be conserved, and that's where the term
10 mass balance comes from initially, and we will find out
11 what is the response downstream from that mixture.
12 Q. What did you understand to be the
13 constituents of the proposed discharge from the mine, and
14 how did you learn that?
15 A. The constituents of concern, our basis for
16 that was what was proposed in the draft permit that was
17 issued that would be commonly expected to be discharged
18 from a mine of this type.
19 Q. What information did you have about the
20 watershed that would be involved in the area where the
21 discharge was proposed?
22 A. The information that we had for the watershed
23 that we needed to do this analysis primarily consisted of
24 drainage basins within the Little Vermilion watershed,
283
1 including the unnamed tributary, in terms of size which
2 would be termed the drainage area.
3 We also had information on the water quality
4 concentrations instream at various points throughout the
5 drainage areas, as well as we needed to have information
6 available about the amounts of rainfall and their
7 response to the drainage area systems.
8 Q. Where did you obtain these data?
9 A. Various sources. Most of the data was
10 obtained in terms of drainage area directly from Black
11 Beauty Coal themselves who had delineated these drainage
12 areas. Rainfall information was available on public
13 knowledge databases from the National Climactic Data
14 Center. Instream water quality concentrations for the
15 basins were obtained again from a monitoring effort
16 conducted by Black Beauty Coal.
17 Q. I'm going to show you what's been marked as
18 BBCC Exhibit 43 and ask if you can identify that, please?
19 A. This exhibit is a map of the Little Vermilion
20 River drainage areas that was put into our October 23
21 report.
22 MR. BLANTON: We offer Exhibit BBCC 43.
23 Q. This is, as I understand it, a copy of the
24 map that's part of the report that's in the record?
284
1 A. That's correct. It's equivalent to figure
2 one.
3 HEARING OFFICER: Mr. Ettinger?
4 MR. ETTINGER: So are you saying this is part
5 of figure one?
6 THE WITNESS: It is. It is a large
7 reproduction of figure one.
8 MR. ETTINGER: No objection.
9 HEARING OFFICER: Mr. Sofat?
10 MR. SOFAT: No objection.
11 HEARING OFFICER: That's admitted.
12 Mr. Blanton, did you skip 39, 40, 41 and 42?
13 MR. BLANTON: Yes.
14 HEARING OFFICER: I wanted to make sure I
15 didn't space out for five exhibits there.
16 MR. BLANTON: No, we're not there yet.
17 HEARING OFFICER: Okay. That's admitted.
18 (Whereupon, BBCC Exhibit Number 43 was marked
19 for identification.)
20 MR. BLANTON: It's a compilation anomaly.
21 BY MR. BLANTON:
22 Q. I'm going to give you a document and ask if
23 that's a copy of Exhibit 43 that's smaller in scale and
24 possibly more manageable to work with?
285
1 A. Yes, it is a copy of the scale; and the map
2 is actually the same, but there is a smaller size.
3 Q. Put Exhibit 43 over here, and open up the
4 smaller copy, please.
5 A. Okay.
6 Q. Can you explain the information found on
7 Exhibit 43 that's relevant to the analysis that you did
8 that's in your report?
9 A. Yes. The information obtained on Exhibit 43
10 here includes the size of the drainage areas that we
11 evaluated in terms of acres as well as the location of
12 the water quality monitoring stations that we used for
13 water quality concentrations.
14 Q. After you gathered the data as you've
15 explained -- you can --
16 A. Should I --
17 Q. Yeah.
18 A. Sorry.
19 Q. That's all the questions I had on the map at
20 this time.
21 After you obtained the data that you thought
22 you would need to get started on the project, then can
23 you just please explain how the project moved along, what
24 was the next thing you did?
286
1 A. The next thing we did was, once our data was
2 collected, to analyze that data essentially to make sure
3 that it was -- we could verify the data, it was a quality
4 that we needed to make the analysis. We then proceeded
5 to set up and conduct the actual calculations to find out
6 what those instream concentrations after mixture would be
7 downstream. This was accomplished essentially just using
8 a, a Microsoft Excel spreadsheet that we had composed to
9 accomplish this purpose.
10 Q. Can you explain in lay terms the engineering
11 concepts that underlie this analysis? Basically, what
12 are you comparing, what are the -- how do you do the
13 calculations? Just explain what you did in lay terms.
14 A. Sure. What we did essentially was to find
15 out -- is to calculate essentially two things: Number
16 one would be the volumes of the flow -- or volumes of
17 flow that we were looking at.
18 Q. And the volume of flows of what, where?
19 A. Those would be a function of rainfall. In
20 other words, we want to estimate the volume of flow that
21 would be coming from the drainage area corresponding to
22 the mine itself, the drainage area of outflow 003. That
23 total volume flow would be a function of the rainfall.
24 Same thing as the total volume flow from the unnamed
287
1 tributary upstream from outfall 003, as well as the
2 Little Vermilion River at various points would also be a
3 function of the rainfall amount that we used.
4 Q. All right. Then how do you take that
5 information and work with it?
6 A. Once we have -- we have a critical design
7 storm event that was defined.
8 Q. What's that?
9 A. The one that we used in the report -- there
10 are actually two storm events that we looked at in the
11 report. A maximum storm event corresponding to the 100
12 year, six-hour storm equivalent to 4.65 inches of runoff,
13 as well as a lower level storm and minimum amount storm
14 equal to one inch of precipitation. This number was
15 derived from conversations with Black Beauty Coal as the
16 minimum storm that would cause a discharge to occur from
17 outfall 003.
18 Q. So then after you knew what the critical
19 storm events were, what did you do?
20 A. At that point, we have to, in essence, take
21 the rainfall from the sky and put it into the river, and
22 that is done by using the standard hydrology practices.
23 Our manual that we used was the U.S. Department of
24 Agriculture technical release number 55 -- I believe the
288
1 title is Urban Hydrology for Small Watersheds -- which
2 provides the equations to translate rainfall into direct
3 runoff from those drainage areas. It is the direct
4 runoff that will be going into the rivers.
5 Q. After you determined what -- how much of the
6 rainfall gets into the streams both from the mine area
7 and from the unnamed tributary and, I think, also Little
8 Vermilion watersheds, what do you do with that
9 information then?
10 A. Okay. Once we have that volume of flow, we
11 need to assign a quality to it. And at that point, we
12 use the water quality stations that were shown on figure
13 one that were representative of those drainage
14 watersheds. We pair those with the volumes of flow to
15 come up with a mass component.
16 Q. Can you state for the record what the water
17 stations are and where they are located, please? I
18 understand there were four of them, right?
19 A. That's correct. There are four water
20 stations. Station number 11SW-3 was --
21 Q. Where is that located?
22 A. That is located on the unnamed tributary
23 downstream from outfall 003; station 14SW-4, located on
24 the unnamed tributary upstream from outfall 003; the
289
1 third station is 15SW-8, located on the Little Vermilion
2 River upstream from the unnamed tributary; and we also
3 used representative sampling point 10SW-7 which is
4 representative of the Faya (phonetic) drain upstream from
5 the Little Vermilion River.
6 Q. Did you understand the proposed discharge
7 from outfall 3 to be going into the unnamed tributary or
8 the Little Vermilion River directly?
9 A. My understanding was the discharge from
10 outflow 003 would be going to the unnamed tributary.
11 Q. For the unnamed tributary, what was the --
12 describe the data set of water quality information you
13 had for the actual receiving waters.
14 A. Yes, I did.
15 Q. What -- I'm sorry. How much -- you said you
16 looked at water quality data from those stations?
17 A. Yes.
18 Q. What was the -- how many data points did you
19 have for the unnamed tributary at stations 11SW-3 and
20 14SW-4?
21 A. For station 11SW-3, we had eight data points.
22 For station 14SW-4, we had seven data points.
23 Q. And over what period of time did you have
24 data?
290
1 A. For 14SW-4, the time period was from 15th
2 December of 1999 to 3rd of August 2000. For data point
3 11SW-3, the time period was 15 December 1999 to
4 12 September of 2000.
5 Q. Did you consider that data set adequate to
6 give you a reasonable basis to determine what water
7 quality in the unnamed tributary was, absent the
8 discharge from the mine?
9 A. Yes, I did.
10 Q. Then what -- over what period of time and how
11 many data points did you have for the Little Vermilion
12 River?
13 A. For the Little Vermilion River at stations
14 15SW-8, we had two data points. For station 10SW-7, we
15 had also two data points.
16 Q. Over what period of time did you have those?
17 A. For both of those stations, they were from
18 3rd August of 2000 to 12 September of 2000.
19 Q. Once you had the water quality data for the
20 rivers or for the unnamed tributary and the Little
21 Vermilion, what did you do with that information?
22 A. I'm sorry, for the water quality?
23 Q. After you had the water quality for the
24 streams, then what did you do?
291
1 A. After we had the water quality data available
2 for the streams, we came up, from those databases, with a
3 single statistic that could be used to represent the
4 water quality at those basins.
5 Q. How did you do that?
6 A. We took an arithmetical average.
7 Q. Is that standard procedure for something like
8 this?
9 A. Yes, it is.
10 Q. Okay. Then what did you do?
11 A. At that point, we have, at each station, a
12 concentration value that we coupled with the volume of
13 flow that we had determined earlier from the rainfall
14 amounts to come up from the mass of those drainage basins
15 at those respective points.
16 Q. Then what did you do in your analysis?
17 A. At that point, when you have the
18 concentration and volumes combined, you can basically --
19 the mass balance, which is equivalent to a conservation
20 mass, can be calculated to have the resulting mass from
21 the two water bodies combined. Once that value is known,
22 you can calculate, knowing the combined volumes, what
23 would be the resulting instream concentration of the
24 mixture.
292
1 Q. And did you do that?
2 A. Yes, we did.
3 Q. And are your results set forth in the report?
4 A. Yes, they are.
5 Q. Where are they found?
6 A. They are found on tables one and two.
7 Q. In the course of making this calculation of
8 putting essentially together the water from the discharge
9 that was proposed from outfall 3 and the water in the
10 receiving waters of the unnamed tributary, what
11 engineering assumptions are taken into account in the
12 equation you used in terms of when mixing takes place,
13 how the balancing is done? Can you explain that?
14 A. Right. What we had assumed, based on the
15 data at hand, was that we would be using a complete mix
16 scenario, often termed an instantaneous mixing approach,
17 to find out what was the total response from mixing those
18 two volumes of water together.
19 Q. Were any other assumptions of that -- well,
20 what assumptions, if any, did you make about when the
21 discharge would take place from both of these areas as
22 rainfall translates into water into the stream or water
23 into the discharge?
24 A. We had looked basically over a, a time
293
1 period, I guess you might say, averaged over the entire
2 duration of the storm event. The volume reflects the
3 total amount of water that would be discharged during the
4 entire storm event.
5 Q. Are those assumptions standard within
6 engineering practice that you're familiar with for a
7 project like this?
8 A. Yes, they are.
9 Q. Are any of those assumptions and techniques
10 used by any environmental agencies that you're familiar
11 with?
12 A. Yes, they are. They are used by federal U.S.
13 EPA who has prescribed guidance within their -- outlaid
14 in the technical support document for water quality based
15 toxics control. Those guidances have been actually
16 adopted by several states to be used as part of their
17 NPDES permitting regulations. And my familiarity also
18 with the Illinois regulations, I believe the part is 35
19 IAC, Subpart C, Part 352, which lays out some NPDES
20 procedures, would also use this type of a complete mixed
21 mass balance approach.
22 Q. That would include the assumptions of
23 instantaneous mixing and single averaged event for
24 translating the rainfall into the flow in the stream?
294
1 A. The regulations address the complete
2 instantaneous mixing.
3 Q. Did you draw any or make any conclusions
4 based upon your calculations as to what effect, if any,
5 discharge from -- proposed discharge from outfall 3 would
6 have on water quality in the unnamed tributary and/or the
7 Little Vermilion River?
8 A. Yes, I did.
9 Q. What were those?
10 A. Those results are found on table one and two
11 of our report. And what we had found, if I can refer to
12 the document, please --
13 Q. Sure.
14 A. -- for the parameters of concern that were
15 analyzed --
16 Q. Let me back up before I ask you that.
17 A. Sure.
18 Q. When you did this original work that's found
19 in your report, what was -- you may have said this
20 already. What was the exact source of data for the water
21 quality that would be coming from outfall 3?
22 A. The water quality that would be coming from
23 outfall 003 -- of course, since the mine was not
24 discharging at the time that we did the analysis, we used
295
1 a surrogate mine. We used DMR data from the Riola mine.
2 Q. What's a DMR?
3 A. A DMR is a discharge monitoring report, the
4 monthly reporting requirements as part of an NPDES permit
5 that a discharge will submit.
6 Q. And where was the -- where's the Riola mine
7 located in relation to the Little Vermilion?
8 A. It is north of the Vermilion Grove mine on
9 the Faya drain.
10 Q. Those were data provided to you by Black
11 Beauty?
12 A. That is correct.
13 Q. Okay. Using those data and the other things
14 that you've just told us, go ahead and now tell us what
15 your conclusions were.
16 A. Our conclusions were, for parameters of
17 concern for chloride and sulfate in terms of the response
18 in the unnamed tributary, the instream concentrations of
19 chloride and sulfate did increase due to the discharge
20 from outfall 001 (sic) but were below water quality
21 standards.
22 For TSS, total suspended solids, the impact
23 in the unnamed tributary was shown to decrease in water
24 quality concentration downstream from the outfall 003
296
1 discharge. For total iron --
2 Q. And how did the resulting TSS number compare
3 to the applicable -- to the water quality standard found
4 in Subtitle 3?
5 A. There is no water quality standard for TSS.
6 Q. Okay.
7 A. The instream iron concentration in the
8 unnamed tributary downstream from the outfall 003
9 discharge also decreased in concentration.
10 Q. How did that compare -- if it can be -- to
11 the water quality standard?
12 A. There is no water quality standard for total
13 iron.
14 Q. Any other parameters that you analyzed in the
15 original report?
16 A. No.
17 Q. Over what period of time did this project
18 last? It was basically done during October?
19 A. That's correct, right. For essentially, I
20 would estimate, a two-week period in October.
21 Q. Okay.
22 A. The final report was submitted
23 October 20th.
24 Q. May I have that back, please? Following your
297
1 original work, have you done any additional analysis of
2 this same basic type as found in your original report?
3 A. Yes, I have.
4 Q. Can you describe what sort of additional
5 analysis you've done?
6 A. The additional analysis that I have done,
7 basically I can term an update of the original work.
8 Q. How?
9 A. Based on available data or, excuse me, data
10 that was not available at the time the original analysis
11 was done and also in regards to responses of issues as
12 part of the permitting process.
13 Q. What are the data that were not available at
14 the time of your original report that are now available
15 that you've now taken into account?
16 A. There was one other additional data point
17 that was collected by Black Beauty Coal as part of that
18 original monitoring program. That was collected on
19 October 4th of 2000.
20 Q. If it was done on October 4 of 2000, why
21 wasn't it in your report dated the end of October 2000?
22 A. The sample was collected on October 4th.
23 Unfortunately, the laboratory analyses were not completed
24 until later.
298
1 Q. And there was something else that you said
2 that was an update that I forgot. What else was there
3 other than that extra data point? Oh, you said there
4 were some additional issues?
5 A. The, the -- we took a look at the analysis
6 again based on the response to some of the issues as part
7 of the permitting process.
8 Q. What were those?
9 A. Those were to reevaluate an appropriate
10 concentration to use for the outfall 003 discharge.
11 Q. And be more specific, please.
12 A. In essence, instead of using the surrogate
13 Riola mine for outfall 003 concentrations, we used the
14 final NPDES daily maximum permit loads.
15 Q. Okay. Did you do anything else in terms of
16 your analysis of the data points?
17 A. Because we had the concentrations for the
18 final daily maximum permit limits for manganese also,
19 that parameter was now included into the analysis.
20 Q. Why wasn't it included in the first one?
21 A. It was not included in the first October 20th
22 report because, again, we used surrogate data for the
23 Riola mine, and there was no manganese data available
24 from the Riola mine.
299
1 Q. When you added the additional data point from
2 October 4, did that get added to all of the sampling
3 stations?
4 A. Yes, it did.
5 Q. And did you again take the arithmetical
6 average of all those available data?
7 A. No. We did not actually.
8 Q. What did you do?
9 A. We reviewed the Illinois regulations and,
10 again, with respect to the part 352 that I had mentioned
11 earlier about NPDES permitting to find if there would be
12 a more appropriate statistic to use for those water
13 quality concentrations. At that point, we -- instead of
14 using the arithmetical average -- used a geometric mean
15 of the background data set as prescribed in the data
16 regulations.
17 Q. What's the geometric mean compared to the
18 arithmetic average?
19 A. Mathematically?
20 Q. Yes.
21 A. An arithmetic average is the total of your
22 database divided by the number of samples. The geometric
23 mean is the reciprocal of the sum of the reciprocals.
24 Q. And what's a reciprocal?
300
1 A. A reciprocal? A reciprocal is basically if
2 you have a number, the reciprocal would be equal to one
3 over that number; one divided by that number.
4 Q. Are you familiar with the engineering or
5 statistical or whatever principle used that would cause
6 one to choose geometric mean over arithmetic average in
7 figuring out the best number to use when you have a set
8 of data points like this?
9 A. I -- yes, I statistically understand the
10 basis why geometric mean would want to be used.
11 Q. Why?
12 A. Because, in essence, a geometric mean will,
13 in essence, mute out extreme events or perhaps extreme
14 outlyers of databases.
15 Q. In addition to adding the data point, adding
16 manganese using permit limits instead of Riola averages
17 for the 100 year, six-hour storm and the -- I'm sorry,
18 for the 4.65 inch rainfall and the one-inch rainfall, did
19 you do any other analysis with these data?
20 A. Yes, we looked at one other case essentially.
21 Q. What is that?
22 A. That involved looking at a flow ratio between
23 the tributary upstream from outfall 003 to outfall 3,
24 that ratio equivalent to 3:1 mixing.
301
1 Q. And why did you look at that recently when
2 you didn't look at it in October?
3 A. We looked at it recently because it is a, a
4 condition of the final permit that was not a condition in
5 the draft permit.
6 Q. Show you what's been marked as BBCC Exhibit
7 39, ask if you can identify that, please.
8 A. This is the database and the result also of
9 the recent remodeling efforts that we have conducted.
10 Q. And does this summarize the results of these
11 -- this additional work that you've described in
12 essentially the same format as the exhibits in the
13 original report?
14 A. Yes.
15 MR. ETTINGER: Excuse me. Which page are we
16 looking at here?
17 MR. BLANTON: It's all four pages together.
18 MR. ETTINGER: So what page are we talking
19 about now? Is it the fourth page?
20 MR. BLANTON: I'm sorry.
21 BY MR. BLANTON:
22 Q. Let me back up. On Exhibit BBCC 39, what is
23 the first page?
24 A. A first -- the first page is a summary of the
302
1 long-term sampling database.
2 Q. Okay. And that essentially sets forth --
3 A. This provides the data that was used to
4 calculate the geometric mean from the water quality
5 sampling stations.
6 Q. So it differs from the original database in
7 the report by adding the fourth data point at each
8 station, adding manganese data and adding -- and doing
9 the calculation by geometric mean rather than arithmetic?
10 A. Right. I believe when you said the fourth
11 data point, you meant the October 4th data point?
12 Q. Yes.
13 A. Right.
14 Q. What is the next page which, I believe, in
15 the exhibit says Black Beauty Coal, Vermilion Grove Mine,
16 Storm Water Dilution Analysis. Outfall 3 concentration
17 equals the final daily maximum permit limits. Then the
18 next line it says, 4.65 inches.
19 A. This is the result of our recent analysis
20 that incorporated that database as well as the other
21 changes that we have just discussed.
22 Q. Then the next page is -- has the same title
23 except it says one inch rather than 4.65. What's that?
24 A. Correct. It's the same analysis again, a
303
1 recent analysis but for a different storm. The first one
2 was for 4.65 inches. That's what's down in the original
3 report. The second one was 4.1 inches which was also
4 done in the original report.
5 Q. And there's a page that the title for the
6 first line is the same. The second one is HC 3:1
7 dilution ratio, et cetera. What's that?
8 A. This is the new case that was recently
9 analyzed to simulate 3:1 mixing dilution ratio between
10 the unnamed tributary upstream from outfall 003 and
11 outfall 004.
12 MR. BLANTON: Now we would offer BBCC Exhibit
13 39.
14 HEARING OFFICER: Mr. Ettinger, any objection
15 to BBCC 39?
16 MR. ETTINGER: No.
17 HEARING OFFICER: Mr. Sofat?
18 MR. SOFAT: No.
19 HEARING OFFICER: That will be admitted.
20 (Whereupon, BBCC Exhibit Number 39 was marked
21 for identification.)
22 BY MR. BLANTON:
23 Q. Mr. Vlachos, what are the conclusions -- well,
24 do these -- can you draw conclusions from Exhibit BBCC
304
1 39?
2 A. Yes.
3 Q. What are they?
4 A. The conclusions are, utilizing all of these
5 changes that we have discussed, the addition of the
6 outfall 003 discharge to the unnamed tributary will not
7 result in any instream concentrations downstream from
8 that discharge greater than water quality criteria.
9 Q. And in terms of whether the absolute numbers
10 would be expected to go up or down, could you go through
11 those again the way you did earlier?
12 A. Sure. The absolute numbers that you were
13 referring to --
14 Q. I'm going to say, did they go up or down? I
15 mean when you put the discharge into the unnamed
16 tributary, I'm not asking you at this point to compare
17 what happens under Exhibit 39 compared to your original
18 conclusions.
19 A. Right. For what I understand that you're
20 asking here, the absolute concentrations did increase
21 because we were using a larger concentration for the
22 initial outfall 003 discharge which was set at its final
23 daily maximum, NPDES daily permit limits.
24 Q. Were there -- using these data, do they
305
1 indicate what will happen with respect to sulfates in
2 relation to water quality standards?
3 A. Yes. For sulfates, for all three cases that
4 were examined, being the 4.65 inch storm, the one inch
5 storm and a 3:1 dilution ratio, the response in the
6 tributary downstream from outfall 003 for sulfate
7 resulted in concentrations less than the water quality
8 standard.
9 Q. What about chlorides?
10 A. The same is true for chlorides.
11 Q. Okay. And what about manganese?
12 A. The same is true for manganese.
13 Q. Did you do any additional work other than
14 what you just described that was summarized in Exhibit
15 BBCC 39?
16 A. Yes, I did.
17 Q. And describe what you did in addition?
18 A. In addition to these analyses, we conducted,
19 I guess you might say, another set of analysis for those
20 three cases -- the 4.65 inch storm, the one inch storm,
21 and the 3:1 dilution ratio using an even further expanded
22 database based on recent NPDES data that was collected.
23 Q. And what do you mean by NPDES data that was
24 collected?
306
1 A. Under the existing permit, the final permit
2 for Black Beauty Coal mine, they're required to sample
3 the outfall 003 discharge. There were three sampling
4 events that we had data for from the month of February
5 that we could utilize for the analysis.
6 Q. Were those data -- there are -- in addition
7 to the outfall, there are instream locations that are to
8 be sampled, right?
9 A. That is true. That is also part of the
10 permit provisions.
11 Q. Did you use the sampling from those instream
12 locations to add to the original database?
13 A. Yes, we did.
14 Q. And then did you do essentially the same
15 calculation with those additional three data points?
16 A. That's correct.
17 Q. I'm going to show you what's been marked as
18 BBCC Exhibit 41 and ask if you can identify that.
19 A. This exhibit presents the combined sampling
20 database which would include the previous one that we've
21 just examined as well as the three additional points for
22 February for the stations in the drainage areas of the
23 Little Vermilion River and the unnamed tributary.
24 MR. ETTINGER: Excuse me. This is very well
307
1 prepared and that's great, but we're moving very quickly
2 here, and I'm just not able to get the paper and find out
3 where we're talking about in time; so could we just slow
4 down so I can see where we are?
5 Now, what document should I have in front of
6 me? And a lot of these documents look very similar.
7 MR. BLANTON: This one says at the top Black
8 Beauty Coal Combined Term Sampling Database.
9 MR. ETTINGER: And this is exhibit what?
10 MR. BLANTON: 41.
11 MR. ETTINGER: 41. And what page are we
12 referring to now?
13 MR. BLANTON: The first page.
14 MR. ETTINGER: The first page. Thank you.
15 MR. BLANTON: Sorry.
16 Q. If you look at Exhibit 41 on the first page --
17 A. Yes.
18 Q. -- that's entitled Black Beauty Coal Combined
19 Term Sampling Database. I notice that for four sampling
20 points, you have added data from February 12th, 14th, and
21 25th of 2001. Is that right?
22 A. That is correct.
23 Q. Were those samples physically taken from the
24 same four locations that you've identified on the map
308
1 that's Exhibit 43 and that are the same locations that
2 are identified in your original report and in Exhibit 39?
3 A. No, they are not.
4 Q. Where are the -- where physically are located
5 the sampling points that you have put in the same box as
6 10SW-7? There's one sampling point for that one, right,
7 for February of 2001?
8 Let me back up. I'm getting it confused.
9 Where are -- excuse me. How many of the NPDES sampling
10 points were used in this sampling base?
11 A. Two.
12 Q. All right. And how are they identified?
13 A. They are given, I believe, just a designated
14 number such as IEPA 2 and IEPA 3.
15 Q. And do you know where they are physically
16 located on these streams in relation to the original four
17 sampling points?
18 A. I would have to refer to a map.
19 Q. Okay. Can you look at Exhibit 43 or look at
20 the small copy of it and tell us where the NPDES sampling
21 points are located?
22 MR. ETTINGER: I have a little problem here in
23 that the record's not going to show where he pointed to
24 the map. Unless they're marked on the map, we're going to
309
1 have some problem. Are these sampling points marked on
2 this exhibit?
3 MR. BLANTON: They will be when he takes my
4 pen and I ask him to do it, yes.
5 MR. ETTINGER: Okay.
6 BY MR. BLANTON:
7 Q. Can you find where they are approximately?
8 A. I would need to confirm that with the --
9 another map.
10 Q. Do you have that?
11 A. I believe I do, yes.
12 Q. Can you get it so you can confirm it so we
13 can put it onto the 43?
14 A. Yes.
15 MR. BLANTON: Can we take just a couple
16 minutes to let him get that?
17 HEARING OFFICER: Yes. Let's go off for a
18 couple minutes.
19 (A discussion was held off the record.)
20 HEARING OFFICER: We are back on the record
21 after a short recess. Sir, let me remind you you're still
22 under oath.
23 BY MR. BLANTON:
24 Q. Mr. Vlachos, have you now located your map
310
1 that will show you where the NPDES sampling points are?
2 A. Yes.
3 Q. What I would like you to do is, using that as
4 a reference, go to Exhibit 43 and place Xs on Exhibit 43
5 in blue ink and circle them so that they're clear where
6 you're showing where the sample points are that are
7 incorporated into Exhibit 41.
8 A. (Witness complies.)
9 Q. Can you also mark them as A, B, C or 1, 2, 3
10 or something so we can track them from the map into the
11 chart?
12 A. Yes.
13 Q. So, you've now marked the map?
14 A. Yes, I have.
15 Q. Okay. Explain just in terms of which stream
16 and whether it's upstream or downstream of something like
17 you have before what the three data points are so we'll
18 know which is which when we look at the map?
19 A. Okay. IEPA site number two is on the unnamed
20 tributary; it is upstream from outfall 003. IEPA site
21 number three is on the Little Vermilion River; it is
22 upstream from the confluence with the unknown tributary.
23 Q. Those are the two?
24 A. Those are the two.
311
1 Q. Okay. Be seated, please.
2 Now look at Exhibit 41. Where are the data
3 from NPDES sampling point two found in the first page of
4 Exhibit 41?
5 A. IEPA sampling site number two, which is on
6 the unnamed tributary, are found in conjunction with both
7 sample sites 11SW-3 and 14SW-4 which are also on the
8 unnamed tributary.
9 Q. Where is NPDES location three found on the
10 first page of Exhibit 41?
11 A. IEPA site number three, which is on the
12 Little Vermilion River, has been combined with sample
13 sites 10SW-7 as well as 15SW-8 for the Little Vermilion
14 River.
15 Q. Why did you do that?
16 A. Both of those, in the case of the Little
17 Vermilion River as well as the unnamed tributary, those
18 sampling sites would be representative of the same water
19 quality conditions as were the original database.
20 MR. BLANTON: We offer Exhibit BBCC 41.
21 HEARING OFFICER: Mr. Ettinger?
22 MR. ETTINGER: I don't object.
23 HEARING OFFICER: Mr. Sofat?
24 MR. SOFAT: No objection.
312
1 HEARING OFFICER: That will be admitted.
2 (Whereupon, BBCC Exhibit Number 41 was marked
3 for identification.)
4 BY MR. BLANTON:
5 Q. Mr. Vlachos, what is the second page of
6 Exhibit 41?
7 A. The second page of Exhibit 41 presents the
8 results of the analysis for the 4.65 inch storm. This
9 analysis was the same as that was done. The only
10 revisions here included -- include the combination of
11 databases as presented on page one.
12 Q. What's page three of Exhibit 41?
13 A. The results for a one inch storm.
14 Q. And then what's page three?
15 A. The results for --
16 Q. Excuse me, page four?
17 A. The results for the 3:1 dilution ratio.
18 Q. And can you draw conclusions from these
19 analyses?
20 A. The -- yes, I can.
21 Q. What are they?
22 A. The conclusions are similar to the previous
23 analysis that we had looked at, such that the resulting
24 instream concentrations for chloride, sulfate, TSS, total
313
1 iron and manganese, those concentrations instream are
2 below water quality standards in the unnamed tributary
3 downstream from outfall 003.
4 Q. And water quality standards means the numbers
5 found in the charts at section 302.208 for general use
6 waters under Subtitle C, right?
7 A. That is correct.
8 Q. Okay. How does the additional work relate to
9 your original conclusions that were in the report that
10 the agency had before it at the time of the permit?
11 A. Essentially the conclusions are the same for
12 both our original report as well as this recent work.
13 The concentration response instream in the Little
14 Vermilion River as well as the unnamed tributary results
15 in concentrations below water quality standards.
16 Q. You can put that exhibit aside, please.
17 There was an issue or topic that came up in my
18 questioning of -- in Mr. Moore's testimony yesterday
19 regarding what is the permit limit for some form of iron
20 and what is the water quality standard for some form of
21 iron and how those compare. Were you here for that
22 testimony?
23 A. Yes, I was.
24 Q. What did you understand the issue to be
314
1 between the permit limit and the water quality limit?
2 A. The permit limit and the water quality limit,
3 the issue at hand was to make sure that there is a clear
4 understanding between the form of iron that either those
5 limits or those water quality standards are based on.
6 Q. Can you explain what the issue is in
7 scientific terms between the concepts of total iron that
8 can be found in water and dissolved iron that can be
9 found in water?
10 A. Total iron includes the dissolved and
11 particulate forms of iron, while dissolved iron is just
12 individually dissolved forms, soluble form of iron.
13 Q. How does particulate iron get into waters
14 like this?
15 A. It will be adhered to particulates, suspended
16 cells, matter within the water column.
17 Q. Do you know how, in a water quality lab if
18 they just get a sample of water how -- whether they can
19 measure both total iron and dissolved iron for that
20 sample?
21 A. Yes, they can measure both total and
22 dissolved iron.
23 Q. How do they do that?
24 A. The difference -- as far as my understanding
315
1 is of the analytical test, the difference between a total
2 dissolved -- or total iron management and dissolved iron
3 management would be that a dissolved iron management
4 includes a filtration step.
5 Q. So, basically they take the particles out
6 physically and then resample --
7 A. That's correct.
8 Q. -- or reanalyze it?
9 A. And use the same type of analysis; that's
10 correct.
11 Q. Do you have any information or knowledge
12 regarding what one might expect to find as a ratio or
13 relative amount of total iron compared to dissolved iron
14 in a given water sample of waters of the sort we're
15 talking about in this case?
16 A. Yes, there have been measurements taken to
17 compare the total and dissolved components for a water
18 sample of iron.
19 Q. I'm going to show you what's been marked as
20 BBCC Exhibit 42 and ask you to identify that please.
21 A. The question again, please?
22 Q. Is, what is the piece of paper I gave you?
23 A. This Exhibit Number 42 presents some data of
24 total iron and dissolved iron measurements that my
316
1 company, The Advent Group, has been involved in on some
2 of our projects.
3 Q. And explain essentially, what is the type of
4 information that's presented in the document?
5 A. The type of information is analytical results
6 for total iron, analytical results for dissolved iron of
7 instream samples, and then a calculation of what's called
8 the total to dissolved ratio which is equivalent to the
9 iron total concentration divided by the iron dissolved
10 concentration.
11 Q. At the bottom of the page, there is a
12 reference -- there's a statement that says, "U.S. EPA has
13 not developed a DMT for Fe as no WQC and not a priority
14 pollutant." Can you please translate that?
15 A. What this is essentially stating is that
16 you -- United States Environmental Protection Agency has
17 not developed a DMT, which stands for dissolved metals
18 translator.
19 Q. What's that mean?
20 A. A dissolved metals translator is another term
21 for that ratio of total to dissolved iron. "For Fe" --
22 Fe is iron, the chemical symbol for iron. "As no WQC" --
23 WQC stands for water quality criteria. "And not a
24 priority pollutant," the meaning of this statement is
317
1 that U.S. EPA essentially has not derived or advised, in
2 guidance, any default metals translator that can be
3 utilized for iron.
4 Q. What's a default metals translator for iron?
5 A. There is none. A default metals
6 translator --
7 Q. What's that mean?
8 A. EPA, in some of their guidance documents that
9 they provide to states, has done some research, some
10 measurements on dissolved metals translators for other
11 constituents, other metals. There is no clear
12 documentation on that for iron at this time.
13 MR. BLANTON: We offer Exhibit BBCC 42.
14 HEARING OFFICER: Mr. Ettinger?
15 MR. ETTINGER: No objection.
16 MR. SOFAT: No objection.
17 MR. ETTINGER: Well -- no.
18 HEARING OFFICER: Do you want to retract your,
19 "No objection"?
20 MR. ETTINGER: I was just wondering what the
21 phone number was on the side here, but I guess it's just
22 where it was faxed to.
23 HEARING OFFICER: That is admitted. Is there
24 a problem with the photo, Mr. Ettinger? We can cross it
318
1 off.
2 MR. ETTINGER: No, I was just hoping it didn't
3 prove to be important.
4 (Whereupon, BBCC Exhibit Number 42 was marked
5 for identification.)
6 MR. BLANTON: I think it's how you locate
7 Mr. Hubbard. I think.
8 MR. ETTINGER: Also, it's a useful piece of
9 information.
10 MR. HUBBARD: You've got it in your file
11 somewhere.
12 BY MR. BLANTON:
13 Q. On this exhibit, there are four boxes on the
14 right side with numbers in them. What are those, and
15 what do they mean?
16 A. Those numbers as stated in the heading of the
17 column are the geometric mean of the total to dissolved
18 ratios for those individual databases.
19 Q. Okay. Essentially what this is telling us is
20 if you have a total iron content in waters that are
21 identified here, which is Lake Michigan, Wabash, the
22 Mississippi and the Ohio, of the total iron number, this
23 is how much of it's dissolved iron, right?
24 A. That's correct. What that number is telling
319
1 you is -- I'll give it as an example here. For the Lake
2 Michigan information, for the geometric mean
3 total/dissolved ratio of 9.18, what that is stating is
4 that the total iron concentration is 9.18 times greater
5 than the dissolved iron concentration.
6 Q. You can put that one aside, please.
7 MR. BLANTON: I'm sorry, Mr. Knittle. I
8 didn't have copies for you. I apologize for that. I
9 have copies --
10 HEARING OFFICER: No problem. Are these the
11 original?
12 MR. BLANTON: Okay. These are copies so you
13 can at least -- while we're doing the originals.
14 HEARING OFFICER: Thank you.
15 BY MR. BLANTON:
16 Q. In addition to these data from waters that are
17 sort of in the neighborhood but not directly involved, do
18 you have any information regarding the iron translator,
19 the dissolved metals translator for iron in the waters
20 that we're concerned with in this case?
21 A. Yes.
22 Q. I'm going to hand you what's been marked as
23 BBCC Exhibit 40 and ask if you can identify that, please?
24 A. This exhibit presents information that was
320
1 collected by Black Beauty Coal as part of that same NPDES
2 database that we were discussing earlier, giving
3 concentrations of iron as total, concentrations of iron
4 as dissolved, and then a calculated iron dissolved metals
5 translator.
6 Q. I notice that this report shows IEPA sites
7 two and three and four, and you've already marked two and
8 three on Exhibit 43. Can you do that for site four also
9 so we'll know where these samples came from?
10 A. (Witness complies.)
11 Q. You've done that now?
12 A. Yes, I have.
13 MR. BLANTON: We offer Exhibit BBCC 40.
14 HEARING OFFICER: Mr. Ettinger?
15 MR. ETTINGER: May I just see somebody's
16 copies of BBCC 40? I -- oh, I see.
17 MR. ETTINGER: I have no objection to 40.
18 MR. SOFAT: No objection.
19 MR. ETTINGER: Now that I figured out which
20 one it was.
21 HEARING OFFICER: That is admitted.
22 (Whereupon, BBCC Exhibit Number 40 was marked
23 for identification.)
24 BY MR. BLANTON:
321
1 Q. What's Exhibit 40 tell you, Mr. Vlachos?
2 A. Exhibit 40 presents iron dissolved metals
3 translators for three of the IEPA sites prescribed in the
4 NPDES permit for Black Beauty Coal. As an example, for
5 site number two, which is the unnamed tributary upstream
6 from the Little Vermilion River, the ratio of total iron
7 to dissolved iron is 1.8. For IEPA site number three,
8 two ratios were calculated, being 24.0 and 3.6. For IEPA
9 site four, which is the Little Vermilion River downstream
10 from the unnamed tributary, that ratio was calculated at
11 4.8.
12 Q. Why is it on Exhibits 42 and 40 there is no
13 number for DMT by every one of the samples? And
14 specifically on Exhibit 40 there is no DMT number where
15 the iron dissolved number is less than 0.005, and that
16 appears to be the case also on Exhibit 42.
17 A. No dissolved metals translator was calculated
18 for an individual data point where either the total iron
19 concentration or dissolved iron concentration was
20 reported as a nondetect value or less than a method
21 detection limit.
22 Q. Even though you cannot calculate a ratio
23 where the denominator would be zero, what do these data
24 tell you if you have a total iron reading and the
322
1 dissolved iron is nondetect in terms of what the ratios
2 in these waters would be between total and dissolved
3 iron?
4 A. You would anticipate and predict essentially
5 that the ratio would be very high as there is not much,
6 if any, dissolved iron within these samples.
7 Q. As you know, the permit sets a minimum
8 dilution level of 3:1. Have you looked at the issue of
9 what actual -- and you also know, I believe, that there
10 was some suggestion by some people in this case that the
11 unnamed tributary might actually not have much water at
12 all in it when there was a discharge.
13 Have you looked at the issue of what the
14 likely scenario is of the actual dilution ratios between
15 the unnamed tributary and this discharge?
16 A. Yes, I have.
17 Q. How did you do that?
18 A. I -- using the precips in the original
19 report, essentially the volume approach for rain storms,
20 an analysis was conducted to understand, for a range of
21 rain storms, precipitation amounts, what would be the
22 anticipated dilution in the unnamed tributary downstream
23 from outfall 003.
24 Q. Can you describe how you did that analysis?
323
1 I mean, basically the same thing. In lay terms, what did
2 you look at?
3 A. We looked at the volumes for many storms
4 resulting from the runoff from the 003 -- excuse me,
5 outfall 003 drainage area mixed with the volumes of
6 rainfall that has run off from the unnamed tributary
7 upstream from the outfall 003 discharge. Those volumes
8 were combined to understand the dilution downstream.
9 Q. And once you knew --
10 A. Calculate it.
11 Q. Once you knew what the actual data were, how
12 did you analyze that to convert it into dilution ratios?
13 Or did you already answer that? Basically, you looked at
14 what it really was, then what was coming out of
15 outfall 3?
16 A. That's correct. We did a volumetric
17 dilution.
18 Q. Would you look at the relationship between
19 the amount of rainfall and what the resulting dilution
20 ratio would be?
21 A. Yes. For many storms, we wanted to
22 understand what was that functional relationship of
23 dilution versus storm precipitation.
24 Q. And in general, what did you find out in that
324
1 regard?
2 A. We found out that -- and I'll preface this by
3 saying the range of rainfall events that we looked at
4 ranged between 1.0 and 4.65 inches which essentially
5 brackets our two scenarios that we have been running for
6 the modeling. For the lower rainfall amounts, 1.0
7 inches, we calculated the dilution amount in the unnamed
8 tributary downstream from outfall 003. As rainfall
9 increases towards 4.65 inches, we do see a decrease in
10 dilution. But as the rainfall amount increases where
11 it's 4.56 (sic) inches, that dilution reaches a minimum
12 value. In essence, in a graph, that would be stated as
13 being the response becomes acidotic to a minimum dilution
14 value.
15 Q. Okay. Have you put the results -- what kind
16 of equations did you use to do that analysis? Since you
17 had rainfall events from 1.65 inches and you had this
18 database, how did you use that information to project it
19 over a larger range of possible precipitation events?
20 A. Basically I used a range of rainfall events
21 between one and 4.65 inches in increments of, I believe,
22 one tenth of an inch of rainfall to plot the dilution for
23 each progressive increasing rainfall event to come up --
24 essentially to generate a graph that can show that
325
1 functional relationship.
2 Q. Let me show you what's been marked as BBCC
3 Exhibit -- I have it as 42, but it can't be that.
4 MR. HUBBARD: 44.
5 MR. BLANTON: Be 44?
6 Q. Ask you if you can identify that?
7 A. This exhibit presents a graphical
8 representation of the results of the analysis which gives
9 dilution of outfall 003 discharge in the unnamed
10 tributary versus precipitation amounts.
11 Q. And what does your analysis -- excuse me.
12 MR. BLANTON: We offer Exhibit BBCC 44.
13 HEARING OFFICER: Mr. Ettinger?
14 MR. ETTINGER: No objection.
15 HEARING OFFICER: Mr. Sofat?
16 MR. SOFAT: No objection.
17 HEARING OFFICER: No objection. That is
18 admitted.
19 (Whereupon, BBCC Exhibit Number 44 was marked
20 for identification.)
21 BY MR. BLANTON:
22 Q. And what does your work show as indicated in
23 Exhibit 44 as to what are the likely dilution ratios on
24 those occasions when Black Beauty is allowed to discharge
326
1 from outfall 3?
2 A. The results of this analysis shows that for
3 rainfall events between one and 4.65 inches as well as
4 greater than 4.65 inches, as we extrapolated the
5 equations, the minimum dilution that would result will be
6 8.0 to one.
7 Q. Were you here yesterday when there was some
8 discussion with Mr. Frevert about how much of the unnamed
9 tributary will mixing occur during discharge events?
10 A. Yes, I was.
11 Q. And what did you understand -- have you given
12 some thought to what would be required to do a complete
13 analysis of what the geographical area is for the mixing
14 zone or a mixing area or dilution area downstream from
15 the discharge point for outfall 3 under all occasions and
16 circumstances under which the discharge is allowed in the
17 permit?
18 A. Yes, I have given it some thought.
19 Q. What would it take to do that engineering
20 analysis?
21 A. To do that type of an engineering analysis,
22 site-specific data of the watershed basin would need to
23 be obtained to calculate, via projections, what would be
24 the size of the mixing zone, what would be the dilution
327
1 of that mixing zone, to understand how that dilution
2 could change as a function of distance downstream from
3 the outfall.
4 Q. Are there -- is there enough information
5 available to you as an experienced environmental engineer
6 who's looked at matters like this to draw some general
7 conclusions about the likely amount of distance
8 downstream from the discharge mixing would still be
9 taking place under a 3:1 dilution ratio?
10 A. Although --
11 Q. The first question is, is there enough data
12 for you to have an opinion?
13 A. Yes, there is.
14 Q. And what is your opinion as to under a 3:1
15 dilution ratio, which would be the minimum amount, how
16 far downstream there would still be mixing going on?
17 A. Although the data does not exist to do the
18 complex models that I had alluded to earlier, there is
19 sufficient information to make a determination, based on
20 characteristics of the receiving water body, the unnamed
21 tributary, as well as characteristics of the discharge
22 to, in essence, understand what that distance would be.
23 Q. And what would it be, in your judgment?
24 A. In my judgment, based on experience with
328
1 working with mixing zones for this discharge as well as
2 other discharge, I would anticipate the mixing instance
3 to be on the order of around 100 feet or so.
4 Q. And can you explain a little more why you
5 think that?
6 A. The basis for that decision primarily rests
7 in the characteristics of the receiving stream as well as
8 the discharge, understanding that in this portion of the
9 unnamed tributary, the approximate width of the stream is
10 around 20 feet or so based on the information that I've
11 been provided by Black Beauty Coal. It's a fairly
12 shallow system, perhaps depths of one or two feet or so.
13 The discharge itself -- as it has been
14 engineered and designed, the resulting discharge from an
15 18-inch outfall pipe will have some momentum and velocity
16 coming out of that pipe when it is basically on or when
17 discharge is being released. That energy will cause
18 rapid mixing within a smaller type stream such as the
19 unnamed tributary. That effective mixing happens within
20 a relatively short time frame which translates
21 essentially being to a short distance downstream.
22 So, that assessment is based on my
23 understanding of the configuration of the receiving
24 stream as well as the outfall characteristics.
329
1 Q. And you're not representing that this is a
2 rigorous engineering analysis?
3 A. Absolutely not.
4 Q. Are you aware of any work that the Illinois
5 EPA has done that's similar to the sort of analysis that
6 you did in your original report and your follow-up work
7 here recently, basically analyzing the watersheds and
8 what sort of effect there would be, if any, on water
9 quality from the discharge?
10 A. Yes, I have.
11 Q. And what's the information you have available
12 to you from IEPA?
13 A. The information that I have available to me
14 were essentially some very similar type of mass balancing
15 calculations to find resulting instream concentrations
16 for chloride and sulfate that would result in the unnamed
17 tributary downstream from outfall 003.
18 Q. Do you have those calculations that you used
19 to describe?
20 A. I have a copy of those calculations.
21 Q. Can you get them, please?
22 (A pause was had in the record.)
23 MR. BLANTON: Could we stay off the record for
24 just a second? We need to find out whether these are in
330
1 the record or not.
2 HEARING OFFICER: Let's go off the record.
3 (A discussion was held off the record.)
4 HEARING OFFICER: We're back on the record.
5 Mr. Blanton?
6 BY MR. BLANTON:
7 Q. Mr. Vlachos, I'm going to hand you what's been
8 marked as BBCC Exhibit 45 and ask what you understand
9 that to be, just in nature, not the numbers.
10 A. I understand this to be a calculation of
11 instream water quality concentrations for sulfate and
12 iron conducted by Illinois's Environmental Protection
13 Agency.
14 Q. Was that provided to you by my office as part
15 of the discovery materials that were in this case?
16 A. Yes.
17 Q. Can I have that?
18 MR. BLANTON: When we were off the record,
19 it's State of Illinois, Environmental Protection Agency.
20 Subject, BBCC Vermilion data, LVR -- Little Vermilion
21 River -- reviewed by Bob Mosier and Scott Twait dated
22 December 20, 2000. I believe it to be a document
23 provided by the agency in response to Petitioner's
24 interrogatories.
331
1 We offer it as BBCC 45. I'm sorry, I don't
2 have any copies.
3 MR. ETTINGER: Yeah, we saw this. No
4 objection.
5 HEARING OFFICER: Mr. Sofat?
6 MR. SOFAT: No objection.
7 HEARING OFFICER: That is admitted.
8 (Whereupon, BBCC Exhibit Number 45 was marked
9 for identification.)
10 BY MR. BLANTON:
11 Q. How do the agency's calculations compare with
12 the work you've done on this matter?
13 A. The agency's calculations are similar to the
14 work that we have done in this matter by taking a look at
15 volumes of runoff from drainage areas, combining those
16 with instream concentrations to find resultant
17 concentrations downstream from outfall 003 and the
18 unnamed tributary.
19 Q. And how do their conclusions compare to
20 yours?
21 A. Their conclusions are the same as ours,
22 essentially that water quality concentrations that result
23 from the mixture of outfall 003 and upstream unnamed
24 tributary waters, those concentrations are below water
332
1 quality standards for chlorides and sulfates.
2 Q. Did you have any discussion with anyone from
3 the agency about the method of analysis you thought you
4 might employ on this project before you set out on it?
5 A. Yes.
6 Q. Who?
7 A. I had a conversation with Mr. Toby Frevert
8 from Illinois Environmental Protection Agency in
9 conjunction, during a conference call with Black Beauty
10 Coal personnel.
11 Q. Do you remember about when that was?
12 A. I believe the date in reference to my notes
13 is October 10th, 2000.
14 Q. And at that time, did you discuss with
15 Mr. Frevert the basic approach to analyzing these issues
16 that you intended to take?
17 A. That approach was presented to him, correct.
18 Q. And is that the approach you actually took
19 and is demonstrated both in your original report that's
20 in the record beginning at page 983 and these exhibits
21 that you've had here today?
22 A. Yes.
23 MR. BLANTON: I have no other questions for
24 this witness at this time.
333
1 HEARING OFFICER: Mr. Ettinger?
2 MR. ETTINGER: I need a break to try and
3 figure out what all these exhibits are and talk to my
4 expert here.
5 HEARING OFFICER: Let's go off the record for
6 just one second.
7 (A discussion was held off the record, and a
8 lunch recess was taken.)
9 HEARING OFFICER: We're back on the record
10 after a short lunch recess. It is approximately 12:47
11 p.m.
12 Sir, let me remind you you are still under
13 oath. We're going to start with the cross-examination,
14 starting with Mr. Ettinger.
15 CROSS-EXAMINATION
16 BY MR. ETTINGER:
17 Q. What was the pronunciation of your name
18 again?
19 A. Dean Vlachos.
20 Q. Vlachos?
21 A. Right.
22 Q. Are you registered as an engineer in Illinois
23 Mr. Vlachos?
24 A. No, I am not.
334
1 Q. Are you licensed as an engineer in Illinois?
2 A. I am not licensed as an engineer in Illinois.
3 Q. When was the first time that you heard of
4 this mining proposal?
5 A. The first time I had heard about it was in
6 early October of 2000.
7 Q. So you weren't -- nothing was brought to your
8 attention regarding this proposal prior to the contact
9 from, I think you testified, Mr. Fry after the public
10 hearing?
11 A. That's correct. I do not know the date that
12 you're referring to of the public hearing.
13 Q. I believe the public hearing was
14 September 27, 2000.
15 A. That's correct.
16 Q. So prior to September 27, 2000, you hadn't
17 been contacted in any way regarding this permit?
18 A. No, I had not been contacted.
19 Q. I would like you to turn to documents which
20 are part of the public record numbered 981 to 997 which
21 we previously identified as the Vermilion Grove Mine
22 storm water mixing zone evaluation.
23 MR. BLANTON: Hold on just a second,
24 Mr. Knittle. I gave the witness my copy. Thanks.
335
1 HEARING OFFICER: Proceed, Mr. Ettinger.
2 BY MR. ETTINGER:
3 Q. I guess my question is, what is a storm water
4 mixing zone evaluation in your view?
5 A. My view, it's an analysis of the dilution of
6 storm water between a discharge and receiving water.
7 Q. Were you asked to do a mixing zone
8 evaluation?
9 A. I was asked to analyze the impacts and water
10 quality from the outfall 003 discharge to the unnamed
11 tributary and Little Vermilion River.
12 Q. So, is the title of your making?
13 A. The title is of my choice, correct.
14 Q. Turning now to page one of this document
15 which is numbered 984, the third sentence of this first
16 paragraph, it says, "No mine pumpage will be added to the
17 storm water runoff so there will be no dry weather
18 discharge." Do you see that sentence?
19 A. Yes, I do.
20 Q. Is that something you were told by the
21 company, or did you make some independent analysis of
22 that?
23 A. That was information provided by the company.
24 Q. Okay. So -- okay. Down here to the third
336
1 paragraph, the second sentence, it says, "The minimum
2 rainfall event will cause a" -- I'm sorry, strike that --
3 "The minimum rainfall event that will cause a discharge
4 to occur is represented by one inch of precipitation;
5 otherwise, the ponds will hold smaller precipitation
6 amounts."
7 Is that something you were told by the
8 company, or did you make an independent study of that?
9 A. That information was provided to me by the
10 company.
11 Q. Then in the last paragraph on this page, the
12 second sentence, it says, "This evaluation focused on the
13 resultant instream concentrations of select parameters of
14 concern." How were those parameters of concern chosen?
15 A. Those parameters of concern reflect the
16 paramaters that were in the draft NPDES permit.
17 Q. Was there a limit for manganese in the draft
18 NPDES permit?
19 A. Yes, there was.
20 Q. Why was that not included?
21 A. During our analysis, we needed data and
22 information to reflect an actual discharge or a surrogate
23 for an actual discharge for outfall 003. The database
24 that we had was information provided by the Riola mine.
337
1 There was no manganese data available from the Riola mine
2 to use for that, so the analysis would have been
3 incomplete.
4 Q. Going back a little bit more to your
5 qualifications again, are you an expert in mining?
6 A. I would not consider myself an expert in
7 mining operations or processes.
8 Q. Have you studied a lot of coal mines?
9 A. Could you please define "study"?
10 Q. Well, have you looked at the effluent data
11 for coal on a lot of different coal mines?
12 A. No, I have not, not for a lot of different
13 coal mines, no.
14 Q. So, do you -- you don't know whether all coal
15 mines have similar effluent or not?
16 A. In terms of the select parameters that we're
17 referring to, we're going off the parameters in the NPDES
18 permit which, from my understanding, would be a typical
19 list for coal mines.
20 Q. What's your understanding based on?
21 A. The regulations.
22 Q. Okay. Do you know whether coal mines vary
23 from mine to mine as to how much they actually discharge?
24 A. In terms of concentration of flow?
338
1 Q. In terms of concentrations or flow.
2 A. I have not looked at a database of actual
3 discharge data value from various mines.
4 Q. Going back to the table three, the sampling
5 database, this is -- sorry. That's on page 000995. It
6 refers to the Black Beauty Coal long-term sampling
7 database. What do you mean by "long-term" here?
8 A. That is a term that I had put in, was not
9 provided by the company. Long term basically means
10 something of a duration where some seasonality can be
11 captured, essentially more than just a one-event
12 occurrence.
13 Q. Okay. So in your -- in this case, long term
14 to you means -- goes back at least to December 1999?
15 A. That's correct.
16 Q. Are you aware of any prior data that the
17 company collected as to -- or that anybody collected as
18 to any of these parameters discussed in table three?
19 A. "Anybody" being defined as whom?
20 Q. Are you aware of any other data going before
21 December '99 as to any of these parameters?
22 A. No, I am not.
23 Q. And you don't know whether the company's
24 collected any data prior to that?
339
1 A. I do not know that.
2 Q. You don't know whether U.S. or IEPA has
3 collected any data from the period prior to that?
4 A. I do not.
5 Q. Now, when these various concentrations were
6 measured that are captured in table three, were
7 precipitation events going on?
8 A. I had no rainfall records that are indicative
9 of what rain was falling on the mine or these drainage
10 areas, per se. I did look at some drain -- some rainfall
11 information that was provided by regional gauges,
12 specifically a National Climactic Data Center gauge in
13 Danville, Illinois, as well as one in Urbana. At that --
14 correlating those time of rainfall events with -- at
15 those gauges with the dates that these were sampled,
16 there was correlation between rainfall events occurring
17 close to this event in the order of one to three days
18 prior to the majority of these events.
19 Q. Majority of these events. And the flow here
20 on the table, it says here cubic feet per second. That's
21 the flow in the stream, I presume?
22 A. Yes.
23 Q. Okay. Down here we've got the 3rd of August
24 2000, .1 flow on this one site, 14SW-4. .1 cubic feet
340
1 per second. Do you see that figure?
2 A. Yes, I do.
3 Q. Do you believe that it had rained immediately
4 before that data was taken?
5 A. I would have to consult my notes to see when
6 the exact precipitation was.
7 Q. Well, do you have any way -- is there any
8 data for -- that you have available to you that will tell
9 us what the level of precipitation was at the time that
10 these -- this data was collected?
11 A. Yes, I do.
12 Q. Was that -- is that part of the record?
13 A. Not to my knowledge.
14 Q. Okay. Sitting here today, do you know
15 whether any of that data corresponds to a one inch
16 precipitation event?
17 A. I have seen the numbers. I would have to
18 review them to give you an exact number for that.
19 Q. Okay. So sitting here today, we really don't
20 know how the precipitation correlates with any of the
21 concentrations that were found at these sampling
22 stations?
23 A. I -- excuse me. I do know that rainfall
24 events again did occur. For the exact precipitation
341
1 amount that you want from those gauges, I would have to
2 consult my notes to get that information, which is
3 available.
4 Q. Now, where did this data come from that's in
5 table three?
6 A. In terms of the water quality concentrations?
7 Q. Who collected it?
8 A. I would assume Black Beauty personnel
9 collected that.
10 Q. You said that long-time data was adequate to
11 predict seasonal fluctuations. Would that hold true as
12 to site number 10SW-7 and 15SW-8?
13 A. There were no data greater than the two that
14 are shown here at this time that we have access to.
15 Q. You would agree with me that August and
16 September of the same year doesn't exactly represent data
17 on a seasonal fluctuation?
18 A. I would say that's a valid assumption, yes.
19 Q. Right. In fact, we've got one year of data
20 here for two sites?
21 A. That's correct. We have one year of data for
22 the sites on the unnamed tributary.
23 Q. Well, actually it's December to August and
24 December to September on two of the sites that we're
342
1 looking at; is that correct?
2 A. That's correct.
3 Q. Okay. Do concentrations of sediment loading
4 change based on how much rain is falling?
5 A. Yes, I would anticipate that sediment
6 concentrations can be affected by the amount of rain
7 which would also impact the amount of runoff.
8 Q. Right. So, you would want to know how much
9 it had rained prior to a -- if you were measuring what a
10 stream concentration would be or you were trying to
11 predict -- strike that.
12 If you were trying to predict what a stream
13 concentration would be of runoff, you would want to know
14 what the level of rainfall had been prior to that event,
15 wouldn't you?
16 A. To calculate the volumes of runoff that we're
17 using for this analysis, yes, we would need to know the
18 rainfall event amount. But I might add to that, too, for
19 this analysis we have that information available and had
20 the select storms, the 4.65 inch storm as well as the 1.0
21 inch storm that we used for analysis.
22 Q. I'm sorry. This data, does any of this data
23 on table three represent a 4.6 storm?
24 A. I would have to check the records to see if
343
1 that's the case from those gauges at Danville or Urbana.
2 Q. I'm sorry. Perhaps I didn't understand your
3 earlier interjection there. Do you have the data as to
4 this or not?
5 A. What data are you referring to again, please?
6 Q. I'm sorry. Could you read back the answer --
7 okay, we won't.
8 HEARING OFFICER: I wasn't saying you couldn't
9 read it back. I just want you to come through me.
10 MR. ETTINGER: Okay. Would you please ask the
11 court reporter to --
12 HEARING OFFICER: Read back what exactly?
13 MR. ETTINGER: There was -- Mr. Vlachos
14 finished an answer; then he sort of made an additional
15 comment. And I apparently didn't catch the additional
16 comment sufficiently. I just was hoping to hear that
17 back.
18 HEARING OFFICER: Do you know what he's
19 referring to?
20 (Whereupon, the requested testimony from Page
21 340, Line 16 was read back.)
22 BY MR. ETTINGER:
23 Q. Having heard that read back, would you just
24 like to clarify that?
344
1 A. For the analysis that we conducted that we
2 presented in the October 20th report, we used two storms
3 for the analysis, a 4.65 inch storm that corresponded to
4 a 100 year, six-hour event as well as a 1.0 inch storm
5 which corresponded to the minimum precipitation amount
6 that would be expected to result in a discharge from
7 outfall 003.
8 Q. Now, I understand that you had a theoretical
9 model that you ran on that. My question is, do you have
10 any con-- instream concentration data that corresponds to
11 storms of those magnitudes?
12 A. The data that we have available for the
13 analysis is the data presented here. If those correspond
14 to those specific storms of either 4.65 inches or 1.0
15 inches, I would have to check the database in terms of
16 precipitation amounts to see if that is the case. I do
17 not know that offhand.
18 Q. Okay. Other than this database which isn't
19 in the record, we have no way of corresponding now, nor
20 did the agency at the time it looked at this study have
21 any way of knowing how these measured concentrations
22 corresponded to rainfall events?
23 A. That database provided by National Climatic
24 Data Center is available to the public.
345
1 Q. Okay. You don't know whether the agency
2 looked at it?
3 A. I do not know that.
4 Q. You didn't present it to them?
5 A. I did not.
6 Q. Did the concentrations of pollutants change
7 depending on the amount of rainfall?
8 MR. BLANTON: Object to the form of the
9 question. Concentrations instream, concentrations in
10 discharge? Which concentrations, please?
11 MR. ETTINGER: That was a good clarification.
12 BY MR. ETTINGER:
13 Q. Why don't you answer for all of those?
14 A. Okay. Which one was the first one?
15 Q. Streams.
16 A. As a result of the discharge from the
17 outfall, yes, the concentrations instream in the Little
18 Vermilion River and in the unnamed tributary did change.
19 Q. So that's, that's based on running your
20 theoretical model?
21 A. That's correct.
22 Q. Does water gradually usually become more
23 turbid when you have runoff?
24 A. It depends what the land use -- where that
346
1 runoff is coming from.
2 Q. What's turbidity caused by?
3 A. Turbidity, as I understand it, is basically
4 essentially a measurement of clarity of the water; so,
5 those physical characteristics, such as suspended
6 sediments, can cause turbidity to increase as more
7 sediment is added to the water column.
8 Q. Is total suspended solids higher during
9 rainfall events?
10 A. I'd have to ask you to specify, instream
11 measurement, at discharge measurement perhaps or --
12 Q. Well, let's put it this way: For a given
13 stream, would you expect the total suspended solids to go
14 up, as a concentration, following a rainfall event?
15 A. Depending on the land use and the runoff
16 characteristics, yes, it could go up.
17 Q. And would it go up more if it was a harder
18 rain or a longer rain?
19 A. It depends on many conditions, but generally
20 yes, it could go up for a larger volume, more intense
21 rainstorm.
22 Q. Have you ever heard of a term called first
23 flush?
24 A. Yes, I have.
347
1 Q. What is first flush?
2 A. My understanding of first flush is
3 essentially a concept to understand the initial
4 concentrations that can result for the initial runoff at
5 the beginning of a storm to perhaps a stream or within a
6 discharge, et cetera.
7 Q. Is the first flush concentration sometimes
8 higher than the concentration of the pollutants in the
9 effluent after the first flush?
10 A. It can sometimes be higher than the
11 pollutants that are measured as an average over a storm
12 event.
13 Q. Do you know whether the data that was taken
14 in table three corresponded to the levels you would
15 expect in the stream following a first flush or after the
16 rainfall had gone on for a while?
17 A. There's no information to tie the sampling
18 times of these concentrations within the period of the
19 rainfall event, be it the beginning, first flush, middle
20 of the storm, end of the storm.
21 Q. You said that the -- I'm sorry. Let's look
22 now at the table four data. This is also data that was
23 recorded by Black Beauty Coal Company to U.S. -- I'm
24 sorry, IEPA on its discharge monitoring reports. Is that
348
1 your understanding?
2 A. That is my understanding.
3 Q. Okay. And what's your understanding of the
4 conditions for when they had to take this data?
5 A. What conditions perhaps are you referring to,
6 please?
7 Q. Well, a discharge monitoring report is -- a
8 requirement to file a discharge monitoring report is
9 normally caused by a permit condition; is that true?
10 A. That's correct.
11 Q. And my question is, do you know any of the
12 terms of the permit conditions as to how they were to
13 collect this data that appears in table four?
14 A. I would have to review the Riola permit in
15 terms of if it was a grab sample or a 24-hour composite
16 or what's the nature of the sampling method. I would
17 assume that is specified in the permit or the fact sheet
18 for the Riola mine.
19 Q. Was that -- did you ever check that fact?
20 A. The information that I had included the Riola
21 mine permit as well as the DMR report? Yes, I did check
22 that fact. I cannot recall the result of that checking.
23 Q. Do you know whether these concentrations
24 represent or that the recordings of concentrations in
349
1 table four here represent first flush samples?
2 A. No, I do not.
3 Q. Do you know if they are averages over a
4 30-day period?
5 A. To the best of my memory, they are single
6 daily values and not monthly averages.
7 Q. Is it your understanding that the Riola mine
8 is limited by a permit condition that it is only to
9 discharge following precipitation events?
10 A. I do not recall that.
11 Q. Do you know whether the discharges, the
12 concentrations of which are measured in table four,
13 occurred during storm water events?
14 A. No, I do not.
15 Q. Do you know whether these numbers in table
16 four represent the daily max?
17 A. Under the assumptions that there was just one
18 sample collected that day, that could be equated to the
19 daily max.
20 Q. Okay. That's your assumption; you really
21 don't know sitting here today whether it was one --
22 A. I'm sorry. My fault.
23 Q. I know you know where I'm going before I do,
24 but we still have to let a question finish. You don't
350
1 know whether it was a grab sample or not sitting here
2 today?
3 A. Without checking the DMR reports or the NPDES
4 permit to confirm that, no.
5 Q. Obviously if it was a grab sample, a single
6 sample taken of that discharge on that day, there's --
7 it's both a daily max and a daily min; is that correct?
8 A. If there's only one sample, your maximum and
9 minimum are equal, that's correct.
10 Q. Okay. It says here Dates, and I notice that
11 the dates are given as whole months?
12 A. (Witness nods head.)
13 Q. Is that just because they failed to specify a
14 particular day, or did they only discharge once per
15 month, or what happened there?
16 MR. BLANTON: I object to the question and any
17 further questions along this line. It's not relevant to
18 the witness's opinions or his work. What he was given was
19 a project to say if the concentrations at the outfall
20 number 3 are a certain number, what will happen in the
21 stream? How you get that number has nothing to do with
22 the work he did.
23 It's outside the scope of direct. I think
24 we've had enough of just let's see what the witness
351
1 remembers about his data set. The question has nothing to
2 do with either the issues in the case or the witness's
3 work. I think we need to move on.
4 MR. ETTINGER: The whole study that was
5 presented to the EPA that was used as a basis for issuing
6 this permit is based, among other things, on this Riola
7 mine data which uses these data points to determine what
8 the likely effluent concentration will be under this
9 permit. And that's what's being used to determine that
10 this will not violate water quality standards and will not
11 blow out the endangered species below this discharge. And
12 now I'm hearing that I can't probe into what this data set
13 used, which is the foundation for the whole showing that
14 the agency used to show compliance of water quality
15 standards.
16 MR. BLANTON: That's not so. The permit --
17 the draft permit said we will have certain effluent
18 limits; the sampling requirement was a grab sample. The
19 task for the witness was, if you have a grab sample in a
20 certain concentration which, in this case, was an average
21 grab sample concentration of 802 milligrams per liter of
22 chloride coming out of outfall 3, what will happen in the
23 water? It is an assumption that it's the permit
24 condition.
352
1 There's a complete lack of understanding of
2 what the project was, apparently lack of understanding
3 what the permit is, lack of understanding about what we
4 were talking about. The study assumes that if you have a
5 grab sample from outfall 3 in this set of numbers, what
6 will happen? Where you get these numbers has nothing do
7 with the issue before the agency or this study.
8 MR. ETTINGER: That's -- that was one of the
9 assignments. It's simply -- let's look at the table. The
10 numbers that were used from this table four are the
11 numbers that are used in table two and table one to
12 predict the concentrations that would occur in the unnamed
13 tributary and the Little Vermilion River.
14 MR. BLANTON: You can't --
15 HEARING OFFICER: Final thoughts?
16 MR. BLANTON: I'm sorry. You can't -- he
17 wants to argue about, is it a reasonable assumption that
18 this is a number that's real. Fine. But I mean, the
19 study -- all this table does is say, if we assume that the
20 discharge is this, then this is what happens. That's all
21 that's going on.
22 If Mr. Ettinger wants to argue that these are
23 not realistic assumptions, that's a different issue. But
24 the petitioner's position is you shouldn't even look at
353
1 averages. You shouldn't make assumptions. You must test
2 it by the permit limits. They're arguing against their
3 own position in the case. This is just an assumption
4 under which the calculations were run. This witness did
5 not purport to say, I think outfall number 3 is going to
6 have this number. All he said was, Look, they gave me a
7 number. They asked me, If the number's this, what will
8 happen? I told them what would happen. Where the number
9 comes from is not this witness's problem and it's not a
10 proper line of questioning for this witness.
11 HEARING OFFICER: All right. I'm going to
12 rule. Sanjay or -- excuse me, Mr. Sofat, anything to add?
13 MR. SOFAT: Yeah. We would like to object to
14 the statement that the agency used this to show compliance
15 with the water quality standards or any kind of
16 compliance. The agency had its own studies and own
17 analysis and own professionals. And, therefore, we'll
18 object to that. We would like that to be part of the
19 record.
20 HEARING OFFICER: That's duly noted for the
21 record. I think the questions Mr. Ettinger asks are
22 relevant to the question at hand; however, if this witness
23 doesn't know the answers to those questions, Mr. Ettinger,
24 then I expect him to say so, and we can move on instead of
354
1 spending too much time on it.
2 But I think the questions underlying the
3 study, in fact, the numbers and how they were arrived at,
4 I think that's a valid line of questioning. So, to that
5 extent, I'm going to overrule the objection and allow you
6 to go on.
7 However, if he did not pick the numbers, and
8 he doesn't know how to do it, then -- maybe I'm
9 misunderstanding -- but wouldn't seem that there would be
10 much use in questioning him further.
11 MR. ETTINGER: We're agreed that "I don't
12 know" is always a fair answer.
13 BY MR. ETTINGER:
14 Q. Well, let's go back. I can't possibly
15 remember what the last question was anyway.
16 Do you visualize that your role in this study
17 was basically that of a number cruncher?
18 A. One role. Another role is the interpretation
19 of the information that we generate.
20 Q. Okay. So you basically were just given
21 numbers, you ran them through this program, and then you
22 compared them to the water quality standards; is that a
23 fair characterization of the work you did?
24 A. Some numbers were provided to me by Black
355
1 Beauty Coal. Of course, I would make an assessment of
2 that data to see if it's appropriate for the analysis
3 that we have. That, combined with other information that
4 I would have to obtain myself, was combined to do the
5 complete analysis.
6 Q. Okay. So, did you feel that the data that
7 was provided here, these sort of monthly or daily data
8 points in table four was what was appropriate for your
9 analysis?
10 A. Yes.
11 Q. And -- well, what work did you do to
12 determine that those -- that that data was appropriate
13 for your analysis?
14 A. We looked at the database that was provided,
15 again from the Riola DMRs. Those DMRs, by the way, are
16 monthly submissions. A lot of times the sampling that's
17 reported on those, there's no specific date given on --
18 for during that month when that actual sample was
19 collected. In other words, you're provided a July DMR,
20 and you know it occurred in July, and you cannot ascribe
21 down what the date might be when that sample was
22 collected.
23 We looked at that information for Riola to
24 understand the quality of that data in terms of, are we
356
1 perhaps looking at an outlyer that's involved? Is there
2 something that might not be typical of representative
3 conditions that we might want to use for the Vermilion
4 Grove Mine? There is an analysis on the numbers to make
5 sure that we have something consistent that we feel would
6 be representative of the Vermilion Grove mine.
7 Q. I've had the misfortune also of looking at a
8 lot of DMRs in life, and a lot of them are filed monthly,
9 and they generally have a max value for the month and
10 then a 30-day average for the month. Is that the sort of
11 DMR you were looking at for the Riola mine?
12 A. The DMRs were on forms, I believe, provided
13 by the agency. I can't confirm that. That did have
14 spaces allowed for that type of statistic to be put in
15 there.
16 Q. And do you know which data from those DMRs
17 you used to get those numbers? Was it the max, the
18 monthly average, or what number did you use?
19 A. I do not know that. I have not memorized
20 that. I would have to consult the forms, individual ones
21 for the month, to tell you exactly what that statistic
22 was.
23 Q. I'm sorry. I apparently didn't make myself
24 clear. I'm not asking you to remember what the specific
357
1 numbers were. I'm just asking you in terms of type of
2 number you used, did you use a 30-day average from the
3 DMRs, or a -- the max in the DMR; or if there was some
4 other classification in the DMRs that Riola filed, did
5 you use that?
6 A. To the best of my recollection, there were --
7 one sample point there would correspond to one value
8 collected during that month.
9 Q. So, your understanding would be that there
10 was one discharge per month in each of those months?
11 A. There was one sample collected per month.
12 The number of discharges, I'm not aware.
13 Q. So we don't know if there were other
14 discharges that, that weren't reported or you didn't look
15 at for this study?
16 MR. BLANTON: Object to the form of the
17 question. It's pretty obvious what the witness has said.
18 It's argumentative.
19 MR. ETTINGER: I'll go on.
20 HEARING OFFICER: I think it was asked and
21 answered.
22 MR. ETTINGER: I'll go on.
23 BY MR. ETTINGER:
24 Q. In page two of this document that we're
358
1 looking at, it says, "To simplify the mixing zone
2 approach" -- I'm in sort of the middle of the big
3 paragraph in the middle of the page that's been marked
4 000985. It says, "To simplify the mixing zone approach,
5 total runoff volumes from the subwatershed components
6 were mixed together as opposed to mixing peak discharge
7 with time-dependent hydrographs which do not occur
8 simultaneously within the basin."
9 Could you explain a little bit about that for
10 those of us who aren't quite so familiar with hydrographs
11 and other concepts used there?
12 A. Okay. To determine the volumes of flow that
13 we were using for a mixing zone analysis, a storm event,
14 rain, snow melt, some type of precipitation event will
15 fall in a watershed area and then run off. We can tell
16 from common sense that the rains did not fall on the
17 watershed and all run off at one time. There is a time
18 component that relates to flow at a point in the
19 watershed that relates to flow to the time of the storm
20 event. This is commonly what's known as a hydrograph.
21 If you want to think about it in terms of a bell-shaped
22 curve of flow in a watershed versus time, that's similar
23 to what the watershed will look like.
24 How that exact shape is made is dictated by
359
1 many things, the storm event itself as well as the land
2 use. To mix volumes of water together, there's
3 essentially two measured fundamental ways that we can do
4 that for this type of analysis for the data at hand.
5 One, of course, is the approach that we used where we
6 look at the total volume of water that has run off from
7 that storm, from beginning to end essentially, over those
8 watersheds. This would represent somewhat of an average
9 basis of the storm event because we're looking at the
10 total amount of water. There's no time component
11 involved with that.
12 The other method that's referenced here in
13 terms of using peak discharges from hydrographs, if you
14 again think about that classical bell-shaped curve, at
15 the top there, at maximum, you will see a maximum flow
16 rate that occurs during sometime in the middle of the
17 storm. At that point, we know the maximum volume or --
18 excuse me, discharge rate of the storm, but that is
19 dependent, again, on the storm itself and the watershed
20 characteristics.
21 When we're mixing two basins, such as the
22 outfall 003 drainage area, as well as the unnamed
23 tributary drainage area, they will have each have their
24 own unique shape bell curve or their own hydrograph. The
360
1 timing of the peak, the top of the curve will not occur
2 at the same time. Therefore, we don't know when those
3 two will cross and come together at the exact instance in
4 time. So, that data is not available to make that
5 analysis.
6 So, of course, another method would be to use
7 a total volume approach, which is what we did.
8 Q. Okay. My degree is in law, so you'll have to
9 correct me if I'm totally confused here. But all things
10 being equal, I would assume that rain that fell on the
11 upper part of the watershed would generally take longer
12 to reach the stream than run -- rain that hit parts of
13 the watershed that were closer to the stream. Is that --
14 is that a fair assumption?
15 A. That's a generalization. Of course, there
16 will be factors on, you know, what is the type of land,
17 the permeability of the soils that are involved for
18 percolation, et cetera. But that is a very broad
19 generalization.
20 Q. And the soil's ability to absorb water may
21 vary depending on how much -- how wet it is already,
22 wouldn't it?
23 A. You're referring to anasenic (phonetic)
24 moisture conditions. Yes. How much water is in the soil
361
1 already will dictate how much can run off.
2 Q. And if the soil's very dry at the time that
3 the rain hits, it's -- there's been a six-week drought or
4 something, then the soil will absorb much more water than
5 it would if it's been raining for some time before then?
6 A. Not necessarily. It's possible, but also
7 because of a dry soil that's so hard, it might actually
8 start acting like a parking lot and become more
9 impermeable and have more runoff.
10 Q. What soil conditions do the conditions that
11 you -- write it down.
12 I heard your last answer, under some
13 circumstances the ground can basically get so dry that it
14 can't absorb water anymore?
15 A. It's possible.
16 Q. In doing this study, what sort of soil
17 conditions did you assume in doing the simulation?
18 MR. BLANTON: I'll object to the form of the
19 question and the fact that the -- there is no basis in the
20 record for the question. The study, if you look at it, is
21 based on the resulting flow. How the flow got to be what
22 the flow was is not addressed in the study, is not
23 relevant to the study. The numbers on what the flow
24 actually was on the data points that were used is in table
362
1 three, in the record at page 995. Whatever it was is
2 whatever it was. The number is here.
3 How it got there is beyond the scope of the
4 study and what the witness knows.
5 HEARING OFFICER: Response?
6 MR. ETTINGER: I don't -- either Mr. Blanton
7 or I are very confused about parts of this study. And let
8 me ask a few more questions. I believe the study purports
9 to say more than Mr. Blanton is suggesting. If I'm wrong,
10 then I'll find that out.
11 BY MR. ETTINGER:
12 Q. But I believed, reading this study, that one
13 of the things that you attempted to estimate was the
14 runoff volume from the various subbasins in this area; is
15 that correct?
16 HEARING OFFICER: Let's stop for a second.
17 We're going to hold off on the objection. Are you going
18 to ask some preliminary questions to find out?
19 MR. ETTINGER: I guess that's what we're
20 doing, yes. Well, is that all right with you, Mr. Hearing
21 Officer?
22 HEARING OFFICER: Go ahead. I think that was
23 a fair question.
24 Could you read it back?
363
1 (The preceding question was read back by the
2 court reporter.)
3 A. Yes, it is correct.
4 Q. And did you use -- did you use numbers from,
5 I think, the Soil Conservation Service to estimate how
6 much the runoff would be from the various tributaries?
7 A. Yes, they were part of that analysis.
8 Q. Were those -- and under what conditions were
9 those numbers taken from?
10 A. We used the guidance, again, prescribed in
11 U.S. Department of Agricultural Technical Release
12 Memoranda Number 55, Urban Hydrology for Small Watersheds
13 for the equation that we used. There is a component to
14 describe land use, and that is the -- what is known as a
15 curve number which is the number that you're referring to
16 here.
17 Soil Conservation Service publishes the types
18 of land use, the types of information that is necessary
19 to determine what that curve number is. We had utilized
20 that information to put in a curve number for our model,
21 representative of the conditions of the watershed basins.
22 That number is fixed based on land use. It is not a
23 function of the differing type of storm events.
24 Q. So, what soil conditions are assumed by the
364
1 equation you used to predict the runoff?
2 A. I would have to consult the report to answer
3 that question.
4 Q. That's that urban hydrology report? I'm
5 sorry. The -- you mentioned the urban --
6 A. Urban Hydrology for Small Watersheds. TR 55
7 is the slang to refer to that.
8 Q. That's the report you would have to look at
9 to determine what soil conditions were assumed?
10 A. That's the report that gives you the curve
11 numbers for different types of conditions for the
12 site-specific conditions. Each county will publish their
13 own report that gives additional information. Those two
14 are combined to come up with the curve number.
15 MR. ETTINGER: Can we stop here? Have I
16 addressed Mr. Blanton's objection as to --
17 HEARING OFFICER: I don't know. I think
18 you're going to have to ask the question again and --
19 MR. ETTINGER: Actually, I think I've gotten
20 where I wanted to go a little longer.
21 HEARING OFFICER: Then we'll not rule on the
22 objection. We'll let it stand.
23 MR. ETTINGER: Okay.
24 HEARING OFFICER: Unless you need a ruling,
365
1 Mr. Blanton?
2 MR. BLANTON: No, I'm fine.
3 HEARING OFFICER: Okay.
4 BY MR. ETTINGER:
5 Q. I'm just wondering about the title of the
6 report, "urban." Does it also apply to rural areas?
7 A. Yes, it does.
8 Q. The next sentence on page two, it says,
9 "Furthermore, the outfall 003 sediment control pools were
10 conservatively assumed to be at pool conditions (full)
11 during the onset of the storm event." What do you mean
12 by they were conservatively assumed?
13 A. If the pond is not full, that rainfall will
14 basically be stored and captured by the pond and will not
15 be discharged. By assuming the pond is full, the
16 discharge, in essence, becomes immediate as runoff is
17 routed through that watershed system which would allow
18 more volume or more discharge to be coming from outfall
19 003.
20 Q. In page three, getting back to the soil
21 conservation runoff curve numbers, how did you pick the
22 curve number of 78 for outfall 003 drainage?
23 A. As stated in the report, that number is
24 consistent with the design for the sediment control ponds
366
1 for the mine. In essence, that number was provided to me
2 by the Black Beauty Coal Company.
3 Q. And the number that's used for the unnamed
4 tributary and Little Vermilion River watersheds, that's a
5 curve number of 81, and that came from this report we've
6 talked about?
7 A. That came through a combination of reports
8 that we talked about, the TR 55 manual as well as the
9 Vermilion County Soil Conservation Service maps.
10 Q. During Mr. Blanton's examination, you talked
11 about a U.S. EPA document that I believe you called the
12 technical support document, and that that supported your
13 approach in calculating the zone or rather in -- strike
14 all of that.
15 Earlier during Mr. Blanton's questioning, you
16 mentioned the technical support document, and this
17 supported your methodology and the summary. What
18 technical support document were you referring to?
19 A. It's a technical support document for water
20 quality based toxics control.
21 Q. And is that a document that's used generally
22 by engineers working in this field?
23 A. Yes, it is.
24 Q. And you believe it's a reliable document for
367
1 calculating this sort of study?
2 A. Yes, I do.
3 Q. Is your approach to calculating a mixing zone
4 described in that document?
5 A. Would you repeat the question, please, one
6 more time?
7 Q. Was your approach that you took in this
8 study -- what is it called, Vermilion Storm Water Mixing
9 Zone Evaluation, is that described in the technical
10 document?
11 A. Components of it are, yes.
12 Q. Is this the only approach that's discussed in
13 that document?
14 A. Again, I apologize for not having the
15 document memorized, but to the best of my knowledge,
16 there would be more approaches.
17 Q. I apologize for not bringing the document
18 from my office. So, do you know if there are other
19 approaches for doing this sort of study?
20 A. As referenced in the technical support
21 document?
22 Q. My question now is broader than that. Did
23 you choose from among approaches to doing this work, or
24 is this pretty much the only recognized way to do it?
368
1 A. There are always variations on an approach or
2 a guidance that's given. For the data that was at hand,
3 for the type of analysis at hand here also, as well as
4 the objectives to be measured, this approach was chosen.
5 MR. ETTINGER: Okay. I have spread out so
6 far I can't control myself. Going to have to take a
7 brief break to find the rest of my papers.
8 HEARING OFFICER: How long of a brief break,
9 Mr. Ettinger?
10 MR. ETTINGER: Very brief. In fact, the break
11 could end in a matter of seconds if I find the paper.
12 HEARING OFFICER: What do you estimate in
13 terms of continued cross-examination for this witness
14 time-wise?
15 MR. ETTINGER: Twenty minutes. Did I leave
16 them over here is the issue. Oh. I just found them.
17 BY MR. ETTINGER:
18 Q. Looking now at what has been marked as BBCC
19 Exhibit 40, this document refers to -- do you have that
20 in front of you, sir?
21 A. Yes, I do.
22 Q. It's Black Beauty Coal NPDES sampling
23 database, and it refers to IEPA site, and it gives some
24 numbers. Is that data that was collected by IEPA?
369
1 A. No, those are site designations.
2 Q. Okay. Do you know why this data was
3 collected?
4 A. To my knowledge, it's part of the NPDES
5 permit provisions.
6 Q. Okay. Do you know whether it was reported to
7 IEPA?
8 A. No, I don't.
9 Q. Would you look now at -- could you look now
10 at BBCC Exhibit 43?
11 MR. BLANTON: 43 is the map.
12 BY MR. ETTINGER:
13 Q. Actually could be 41. Can I -- let's see what
14 we've got here. Sorry. May I come up and straighten out
15 my paper? Yes.
16 Looking now at the third page of Exhibit 41
17 you predict certain -- under L, there is results in which
18 there are predictions from running the model with and
19 without the 003 discharge; is that correct?
20 A. Yes.
21 Q. Did you ever compare the predictions of the
22 concentrations in the Little Vermilion River without the
23 003 discharge with any actual data of concentrations in
24 the Little Vermilion River?
370
1 A. If I'm answering your question correctly,
2 yes, that's in column L also, Little Vermilion River
3 downstream tributary without 003 discharge.
4 Q. Yes. That's what you've projected. My
5 question is, did you ever compare your projections with
6 actual data taken in the river?
7 MR. BLANTON: I'll object to the form of the
8 question. It misstates the record, misstates the
9 witness's testimony. He just told you that it's real
10 data. It's not a projection on without discharge, I think
11 is what he said.
12 HEARING OFFICER: Response, Mr. Ettinger?
13 MR. BLANTON: I may be wrong. My
14 understanding of what he said --
15 MR. ETTINGER: I believe Mr. Blanton's wrong.
16 I believe that this is a projection based on the model
17 conditions, and that those are projected numbers.
18 BY MR. ETTINGER:
19 Q. Is that correct?
20 A. That is correct.
21 MR. BLANTON: I apologize.
22 BY MR. ETTINGER:
23 Q. My question then is, did you ever compare
24 those projections with any data on the Little Vermilion
371
1 River?
2 A. Are you inferring data that's downstream from
3 the unnamed tributary?
4 Q. Yes.
5 A. No, I did not.
6 MR. ETTINGER: Now I would like to take a
7 five-minute break.
8 No, I want to take a break and talk.
9 HEARING OFFICER: Does this mean that we're
10 close to wrapping up?
11 MR. BLANTON: Very close. I want to take a
12 five-minute break, talk to my client here and then wrap
13 up.
14 HEARING OFFICER: Okay. Let's do that.
15 (A brief recess was taken.)
16 HEARING OFFICER: Back on. Sir, let me
17 remind you you're still under oath.
18 THE WITNESS: Thank you.
19 BY MR. ETTINGER:
20 Q. In the study you make certain conclusions
21 regarding the storm water mixing zone impact to aquatic
22 organisms. Strike all of that.
23 Are you a biologist?
24 A. No.
372
1 Q. In your study, you make certain conclusions
2 regarding storm water mixing zone impact to aquatic
3 organisms. Is it fair to characterize your conclusions
4 there as based solely on a comparison of the calculations
5 that you made with the water quality standards and
6 criteria?
7 A. That is a portion of that. The other portion
8 is consultation with other Advent personnel who are
9 biologists.
10 Q. Oh. What biologists did you consult?
11 A. The name?
12 Q. Yes. Who did you consult?
13 A. David Arbeason (phonetic).
14 Q. And has he done studies regarding the effect
15 of concentrations on any of the endangered species that
16 are present in the water in the Little Vermilion River?
17 A. He personally has not done any studies, no.
18 Q. Do you know what studies -- I'm sorry. What
19 did Mr. Arbeason tell you regarding the potential effect
20 of these concentrations on the aquatic organisms in the
21 receiving waters?
22 A. They would be anticipated not to have any
23 effect on the aquatic organisms in the receiving waters.
24 Q. Okay. Did Mr. Arbeason's --
373
1 MR. ETTINGER: We're done. I have no further
2 questions at this point.
3 HEARING OFFICER: Mr. Sofat?
4 MR. SOFAT: The agency has no questions.
5 HEARING OFFICER: Redirect, Mr. Blanton?
6 MR. BLANTON: Your Honor -- yes, Mr. Knittle,
7 very briefly.
8 REDIRECT EXAMINATION
9 BY MR. BLANTON:
10 Q. Mr. Vlachos, would you look at your report on
11 pages 990 and 991 which is the storm water mixing zone
12 impact to aquatic organisms, that section? Do you see
13 the last paragraph on page 991?
14 A. Yes.
15 Q. Does that say, for all practical purposes,
16 exactly what your answer was to Mr. Ettinger's last two
17 questions?
18 A. Yes.
19 MR. BLANTON: That's all I have.
20 HEARING OFFICER: Recross, Mr. Ettinger?
21 MR. ETTINGER: No. Next witness.
22 HEARING OFFICER: Recross -- we have to let
23 Mr. Sofat decide if he wants to recross on that issue.
24 MR. SOFAT: No, we don't have any questions.
374
1 HEARING OFFICER: Thank you, Mr. Vlachos. You
2 can step down.
3 THE WITNESS: Thank you.
4 HEARING OFFICER: Mr. Blanton?
5 MR. BLANTON: We call Eric Fry.
6 HEARING OFFICER: Mr. Fry, if you'll please
7 have a seat.
8 (Witness sworn.)
9 ERIC FRY,
10 called as a witness, after being first duly sworn, was
11 examined and testified upon his oath as follows:
12 DIRECT EXAMINATION
13 BY MR. BLANTON:
14 Q. State your full name, please.
15 A. Eric Paul Fry.
16 Q. Where do you live?
17 A. Address?
18 Q. Yes.
19 A. 1509 Glenmore Road, Evansville, Indiana.
20 Q. What's your occupation or profession?
21 A. I am a geologist.
22 Q. Are you employed?
23 A. Yes.
24 Q. Who do you work for?
375
1 A. Black Beauty Coal Company.
2 Q. How long have you worked for Black Beauty?
3 A. A little over nine years.
4 Q. What's your general area of responsibility
5 for Black Beauty at the present time?
6 A. I'm an environmental affairs manager. I
7 spend a lot of my time involved with regulatory issues,
8 with new regulations and that sort of thing, but I also
9 work a lot with the NPDES permits and the air permits and
10 other environmental issues.
11 Q. How many mines, both active and closed or in
12 reclamation status, does Black Beauty have at the present
13 time?
14 A. I --
15 Q. Personally?
16 A. I couldn't tell you exactly, but I'm going to
17 guess around forty.
18 Q. What states are those located?
19 A. Indiana and Illinois.
20 Q. I want to show you what's been marked as BBCC
21 Exhibit 46 and ask if that's a copy of your current
22 resume?
23 A. Yes.
24 MR. BLANTON: We offer BBCC Exhibit 46.
376
1 HEARING OFFICER: Mr. Ettinger?
2 MR. ETTINGER: No objection.
3 HEARING OFFICER: Mr. Sofat?
4 MR. SOFAT: No objection.
5 HEARING OFFICER: It's admitted.
6 (Whereupon, BBCC Exhibit Number 46 was marked
7 for identification.)
8 BY MR. BLANTON:
9 Q. Mr. Fry, up at the top of your resume,
10 Exhibit 46, after your name you have the initials LPG.
11 What's that mean?
12 A. Licensed professional geologist.
13 Q. And your professional certifications are
14 shown there in the second portion of your resume, right?
15 A. Right.
16 Q. On -- you have taught at the University of
17 Southern Indiana; is that right?
18 A. Yes, I taught hydrogeology in '95.
19 Q. On the second page of your resume, under the
20 Law and Regulatory Experience, you have an item here that
21 says, "Work directly with Indiana Department of
22 Environmental Management, Office of Air Issues." What
23 was involved in that?
24 HEARING OFFICER: If you folks could try to
377
1 speak up a little bit, I'm getting motions from the back
2 of the room.
3 BY MR. BLANTON:
4 Q. Second page of your resume, what is this work
5 that you did with the Department of Environmental
6 Management of Air Issues?
7 A. They were developing -- when Title 5 came in,
8 they didn't want everything to go under the conditions of
9 Title 5, so some of the smaller industries, some of the
10 smaller sources were, were segmented into other operating
11 agreements. And this source-specific operating agreement
12 is what Indiana uses to regulate coal mines and aggregate
13 mines and other small sources, and you have to -- it
14 supplanted the permit that they had before.
15 Q. The next item was you indicate that you were
16 the primary author of a 1996 Indiana nonpoint source
17 management plan for active coal mines. Can you tell us
18 what that's about?
19 A. That was a group that was formed by -- again,
20 to study the -- to come up with a nonpoint source
21 management plan for, for coal mines. And they were doing
22 it for all sorts of industries, and I was on the coal
23 mine group.
24 Q. And what are nonpoint sources at active coal
378
1 mines? What was it that you were dealing with?
2 A. Well, you're looking at -- of course, an
3 active coal mine does -- it has point sources in the, in
4 the sediment basins. The nonpoint sources mostly are the
5 areas that, that are not controlled by the basins, areas
6 like the roads in some cases or areas that are the
7 outsides of dams or other undisturbed areas that are
8 within the permit.
9 Q. Back on the first page of your resume under
10 Professional Affiliations, one of the things you've
11 listed is the chairman of the Regulatory Affairs
12 Committee for the Indiana Coal Council. Are you
13 currently that chairman?
14 A. Yes.
15 Q. What are your responsibilities in that role?
16 A. Well, to chair the meetings of the Regulatory
17 Affairs Committee and bring issues to the -- to the Coal
18 Council and discuss those issues and decide on what we're
19 going to do.
20 Q. In the course of your work with Black Beauty
21 Coal Company, have you had occasion to become familiar
22 with the environmental laws of the United States and
23 various states regarding regulation of coal mines?
24 A. Yes, some of them.
379
1 Q. And in that regard, if you -- has it been
2 necessary as part of your work for you to learn the
3 origin of some of the laws and the legislative histories
4 and some of the issues that were involved when these
5 rules were developed?
6 A. Yes.
7 Q. Do you have any role in the NPDES permit
8 proceedings that we're involved in here, the permit for
9 the Vermilion Grove mine?
10 A. Yes, I've been involved.
11 Q. What's been your role in this permit process
12 from the -- from the first part of it till now?
13 A. Well, I, I did a lot of the work answering
14 your questions in part three of the application, and
15 that's where you actually apply for the permit. And then
16 as the permit became controversial, I've worked with
17 Illinois EPA to try to get the permit through the process
18 and get it issued.
19 Q. Now, is there a separate application form for
20 an NPDES permit for coal mines in Illinois?
21 A. No, it's done through the permit application.
22 There are separate applications, but normally with a coal
23 mine, you do it through the permit application.
24 Q. When you say the permit application, are you
380
1 talking about the operating permit application that's
2 submitted to the Office of Mines and Minerals?
3 A. I'm sorry, yes.
4 Q. And that's part three of that application?
5 A. Right.
6 Q. And that's where you get started on the NPDES
7 permit track also?
8 A. Exactly.
9 Q. Going to show you what's been marked as BBCC
10 Exhibit 47 and ask if that's part three -- that's a copy
11 of part three to the operating permit application that
12 was submitted to the Illinois Department of Natural
13 Resources, Office of Mines and Minerals, from which this
14 permit proceeding began. I've got copies for everybody.
15 MR. ETTINGER: Oh that's wonderful.
16 MR. HUBBARD: Have you got one or more?
17 MR. BLANTON: No, that's one.
18 BY MR. BLANTON:
19 Q. There's been some discussion in this -- well,
20 what kind of information generally is contained in this
21 part three --
22 MR. BLANTON: I'm sorry. We offer BBCC
23 Exhibit 47.
24 HEARING OFFICER: Mr. Ettinger?
381
1 MR. ETTINGER: I'm sorry. This is exhibit
2 number what?
3 MR. BLANTON: 47.
4 MR. ETTINGER: This was the permit
5 application?
6 MR. BLANTON: Right.
7 MR. ETTINGER: No objection.
8 MR. SOFAT: No objection.
9 HEARING OFFICER: That's admitted.
10 (Whereupon, BBCC Exhibit Number 47 was marked
11 for identification.)
12 BY MR. BLANTON:
13 Q. Would you tell us generally what sort of
14 information is in this document?
15 A. In the entire document?
16 Q. Yeah, in all of part three generally.
17 A. It's hydrogeologic information. It's
18 characterizing the geology and the hydrogeology of the
19 area in which the mine is proposed.
20 Q. What were the sources of information that was
21 put into this part of the operating permit application?
22 A. Well, it requires certain baseline
23 monitoring, both of the groundwater and of the surface
24 water. It requires -- I'm not sure that everything is
382
1 here. It requires a study of the -- of the geology, of
2 the unconsolidated material and the bedrock material.
3 And that's normally done through boring logs, put in
4 monitoring wells and do slug tests to determine
5 permeability, or there are other methods to determine
6 permeability, some of which we've used where we used soil
7 borings and the soil material to actually do silt
8 analysis and get permeability from that.
9 Q. Are you familiar with the Illinois
10 regulations called Subtitle D?
11 A. Yes, somewhat.
12 Q. Is there a procedure by which, in your
13 understanding, coal mine operators who are applying for
14 operating permits and NPDES permits can opt into
15 Subtitle D and out of Subtitle C regulations?
16 A. Yes, that's my understanding.
17 Q. And is there a place in part three of the
18 application where that can be done?
19 A. Yes.
20 Q. Can you tell us where in Exhibit 47 that
21 issue was addressed by Black Beauty in its permit
22 application?
23 A. In this copy, on page 13 of 20, part H.
24 Q. And what did Black Beauty choose as its
383
1 regulatory option at that point in the application?
2 A. We chose, yes, to accept the TDS-related
3 conditions.
4 Q. That would put you in Subtitle D --
5 A. Yes.
6 Q. -- and out of Subtitle C?
7 A. That's my understanding.
8 MR. ETTINGER: I'm sorry. I'm not seeing
9 where the box is checked here on page 13.
10 THE WITNESS: It's on page 14 on this copy.
11 MR. ETTINGER: Oh, page 14; I'm sorry.
12 THE WITNESS: The question was on 13.
13 MR. ETTINGER: Okay.
14 BY MR. BLANTON:
15 Q. What I want to do -- okay, you can put that
16 aside, please.
17 What I would like you to do next is generally
18 describe the Vermilion Grove mine. What kind of mine is
19 it?
20 A. It's an underground coal mine, number six
21 coal about 200, 200 feet to the coal. It will probably
22 produce somewhere between 2 and 3 million tons of coal a
23 year to be loaded by rail. There will be a preparation
24 plant there, there will be a refuse cell there.
384
1 Q. What's going to happen to the coal that's
2 mined there?
3 A. It will be shipped by rail to -- I'm ashamed
4 to say this, but I'm not exactly -- I think it's to PSI.
5 Q. It's going to a power plant?
6 A. Yes.
7 Q. And are there surface facilities associated
8 with this underground mine?
9 A. Yes.
10 Q. What are those surface facilities? What
11 structures, if any, will there be there for supplementing
12 the mining and processing process?
13 A. It will be a slope.
14 Q. What's that?
15 A. That's the hole in the ground to enter and
16 leave the mine. There will be an air shaft that enables
17 ventilation of the mine. There will be -- there are
18 currently sediment ponds to control drainage in the
19 disturbed areas. There will be a refuse pile. There
20 will be a preparation plant which more or less just
21 washes the coal. It's a gravity separation process.
22 There's no chemicals used other than some flocculents,
23 the same sort of flocculents that you would see used at
24 the Georgetown water treatment facility. There will be a
385
1 railroad out, rail loop.
2 Q. Okay.
3 A. There will be an office, maintenance
4 building.
5 Q. How big an area is encompassed in the surface
6 portion of the mine?
7 A. I think that what we -- what we permitted was
8 418 acres, although I could be wrong. That's
9 approximate.
10 Q. Okay. At the preparation plant, what is
11 getting separated? I think you said that's where
12 separation or something takes place. What's physically
13 going on at the preparation plant?
14 A. When the coal is mined, you pick up a little
15 bit of the floor and a little bit of the roof; and it
16 also will have rock seams within the coal. And the
17 washing process is just a density separation process
18 that, that removes the rock from the coal -- that
19 separates the rock from the coal. The rock goes out to
20 the refuse pile; the coal is shipped to the customer.
21 Q. Is there anything in the refuse pile other
22 than the rock that came out of the ground with the coal?
23 A. No.
24 Q. Where do you plan on getting the water to use
386
1 in the preparation plant?
2 A. The -- we have rather large storm water
3 ponds. There may be some water that's pumped from
4 underground, although I don't think that much right
5 there. But it would mainly be the storm water ponds.
6 Q. I'm going to show you what's been marked as
7 Exhibit 49 and ask you to identify that. May I approach?
8 HEARING OFFICER: Yes. Is there a marking on
9 this? Or is this the --
10 MR. BLANTON: There's not a marking on that
11 one.
12 HEARING OFFICER: Okay.
13 A. This is a map of the Vermilion Grove area.
14 It's showing the watershed above the mine in yellow and
15 in the Little Vermilion River. And then what's in gray I
16 believe is the watershed that purports to our spillway.
17 MR. BLANTON: We offer BB -- Exhibit BBCC 49.
18 HEARING OFFICER: Mr. Ettinger?
19 MR. ETTINGER: No objection.
20 HEARING OFFICER: Mr. Sofat?
21 MR. SOFAT: No objection.
22 HEARING OFFICER: It's admitted.
23 (Whereupon, BBCC Exhibit Number 49 was marked
24 for identification.)
387
1 BY MR. BLANTON:
2 Q. Can you tell us how this map was prepared?
3 How did someone decide that the area in yellow is the
4 total drainage area for the Little Vermilion River?
5 A. Actually, one of our engineering techs went
6 through and delineated the watershed based on the
7 topographic contours.
8 Q. Okay. Explain what topographic contours are
9 on the base map from which this outline was prepared.
10 A. The topographic contours give an indication
11 of the -- of the surface elevation, so it, it shows you
12 what the relief is on the ground.
13 Q. And who did the topographic map that was
14 used? Who's the -- who decided what the elevations were
15 on this map?
16 A. These are USGS-based maps. These are --
17 they're off of rasters that the -- USGS raster that the
18 USGS supplies, but these are a compilation of normal
19 7-1/2 minute USGS quads.
20 Q. And those are United States Geological Survey
21 maps?
22 A. Right. Right.
23 Q. And they've got a system that they basically
24 map areas all over the United States and include
388
1 topography lines?
2 A. Exactly.
3 Q. And so that was used by Black Beauty to
4 generate this map so it basically copied and expanded the
5 USGS quad information on topography?
6 A. We -- the engineering techs put together
7 several quads in order to form this map.
8 Q. Okay. And how was it determined what the
9 area was that would be part of the mine drainage area
10 down there in gray on the right-hand side?
11 A. Well, the same way. It's based on the -- on
12 the topography.
13 Q. For the record, what's the total drainage
14 area for the Little Vermilion River watershed as
15 determined off of these USGS-based topography numbers?
16 A. Number's 97,208.95 acres.
17 Q. And how big is the area that will be affected
18 by the mine and be the drainage area for the mine surface
19 area?
20 A. 413.79.
21 Q. And of the total drainage area for the Little
22 Vermilion River, how much of it will become part of the
23 mine, what percentage roughly?
24 A. The -- I believe the mine area is less than
389
1 half of a percent.
2 Q. Okay. Thank you. That's all I have on this
3 one if anybody wants to fold these up.
4 MR. HUBBARD: Are you going to cross from the
5 map?
6 MR. BLANTON: I don't think so.
7 MR. HUBBARD: If you were, why, kind of --
8 MR. BLANTON: I understand. I understand.
9 But he's far enough along that I guess we'll just let him
10 finish.
11 THE WITNESS: We can do it again.
12 MR. ETTINGER: If worse comes to worse. I
13 don't think so. We won't get done today.
14 HEARING OFFICER: Oh, we will get done today.
15 MR. ETTINGER: Okay. We will get done today.
16 BY MR. BLANTON:
17 Q. Mr. Fry, I've given you a document that's been
18 marked as BBCC 50. What is that?
19 A. This is a map showing the, the permit area,
20 and it's showing some of the features within the permit.
21 It's showing the drainage, sediment ponds, refuse areas.
22 The areas in green are the areas that are not controlled
23 by drainage ditches and don't report to the pond.
24 MR. BLANTON: All right. We would offer
390
1 Exhibit BBCC 50.
2 HEARING OFFICER: Mr. Ettinger?
3 MR. ETTINGER: No objection.
4 HEARING OFFICER: Mr. Sofat?
5 MR. SOFAT: No objection.
6 HEARING OFFICER: Will be admitted.
7 (Whereupon, BBCC Exhibit Number 50 was marked
8 for identification.)
9 BY MR. BLANTON:
10 Q. Okay. Mr. Fry, using Exhibit 50 and
11 otherwise, can you please explain the storm water
12 management system for the surface facilities at the
13 Vermilion Grove mine which, I believe, are depicted on
14 this exhibit?
15 A. Well, it's fairly simple. For the areas that
16 are not in green or brown -- brown is the backs of the
17 dams. Everything else is, is controlled by ditches and
18 reports to the -- one of the three ponds. But the, the
19 NPDES outfall 003 is the only -- is the only outlet to
20 state waters. The others are holding ponds, but they do
21 not outflow. They are connected in series to, to 003.
22 HEARING OFFICER: Is he referring to BBCC 50,
23 Mr. Blanton?
24 MR. BLANTON: Yes.
391
1 Q. There's an area --
2 MR. BLANTON: May I approach the witness?
3 HEARING OFFICER: Yes.
4 BY MR. BLANTON:
5 Q. There's an area on the lower -- it's marked
6 right underneath -- it's the area of green in which the
7 legend 13MW-1 is located --
8 A. Uh-huh.
9 Q. -- sort of in the center of the main part of
10 the surface facilities?
11 A. Yeah.
12 Q. What is the current condition of that area?
13 A. That's undisturbed.
14 Q. What do you mean by "undisturbed"?
15 A. It's undisturbed by mining. We haven't had
16 any activities there. We will have eventually. You can
17 see that there is -- well, you can see there's kind of a
18 squarish shape there. That's where a soil pile will go
19 eventually, and it will be ditched around. But currently
20 I'm showing it as green because, because it's
21 undisturbed.
22 Q. All right. In the lower right-hand corner of
23 the surface area over here near the number 18 from the
24 base map, I believe, where we have -- what is in that
392
1 area to the right? What's going on at the mine there in
2 this area that's not controlled because of -- as shown by
3 the green?
4 A. That's a road. That's a road into the mine.
5 That's a gravel road. And I believe that eventually it
6 will be paved.
7 Q. Is there anything that distinguishes that
8 from any other gravel road --
9 A. No.
10 Q. -- in that area?
11 A. Similar to, to the many other gravel roads in
12 that area.
13 Q. In the north part of the area up near where
14 the Little Vermilion River is and in the southwest corner
15 and the northeast corner, there are areas of green. What
16 physically is the condition of the land there in those
17 green areas?
18 A. At the north end of the permit?
19 Q. Right.
20 A. Those are -- those are undisturbed areas.
21 Q. And what's on them? Are those rock piles or
22 forests or what right now?
23 A. I'd say that they're trees and undergrowth.
24 Q. Between -- is the permit boundary shown by
393
1 this sort of long and then two short -- one long, two
2 short broken line all the way around these areas?
3 A. Yeah, that's the permit boundary.
4 Q. Okay. Between the permit boundary on the
5 north up there where it says 12MW-2 and it's closest to
6 the Little Vermilion River, is there an area between the
7 mine and the river that is not owned or controlled by
8 Black Beauty?
9 A. Yes, I believe that there is a corridor
10 that's owned by Georgetown.
11 Q. And what is there now?
12 A. It's riverbank.
13 Q. And has that been disturbed in any way by
14 Black Beauty?
15 A. No.
16 Q. How does -- as water falls in this area
17 within the ditch area, how does it move through these
18 ditches and into the sediment basins? Is there any
19 pumping, or is it all just gravity movement or what?
20 A. It's gravity flow.
21 Q. Okay. That's all I have on that map for
22 right now.
23 Mr. Fry, I'm going to hand you three
24 documents. These are photographs marked as BBCC Exhibit
394
1 51, 52, and 53. Can you look at those, please?
2 (A pause was had in the record.)
3 Q. Who took these photographs?
4 A. I did.
5 Q. When did you take them?
6 A. Last Thursday, I believe.
7 Q. Do they fairly and accurately depict certain
8 areas of the mine and adjacent areas?
9 A. Yes.
10 MR. BLANTON: We offer Exhibits BBCC 51, 52,
11 and 53.
12 HEARING OFFICER: Mr. Ettinger?
13 MR. ETTINGER: I guess no objection. No
14 objection.
15 HEARING OFFICER: Mr. Sofat?
16 MR. SOFAT: No objection.
17 MR. BLANTON: Can you please --
18 HEARING OFFICER: Admitted.
19 (Whereupon, BBCC Exhibit Numbers 51 through 53
20 were marked for identification.)
21 MR. BLANTON: I'm sorry. I need the ruling.
22 I cut you off on the ruling.
23 HEARING OFFICER: I think she got it.
24 "Admitted," right?
395
1 COURT REPORTER: Yes.
2 BY MR. BLANTON:
3 Q. Can you describe, tell us what Exhibit 51
4 shows?
5 A. 51 is a controlled structure on the, would --
6 we need the map again -- on the large pond in the
7 northeast of the mine. Not the outfall, but the large
8 pond.
9 Q. What's its designation?
10 A. I would have to look. 003-A.
11 Q. And how does this control structure work?
12 A. The boxes that you can -- that you see in --
13 on the -- in the middle on the right-hand side and in the
14 middle on the left-hand side contain weirs, and they have
15 removable plates that can be taken out to control the
16 water level on the other -- on the other side within the
17 impoundment. As you take the plates out, you can allow
18 water to, to bypass your dam and come out these large
19 corrugated pipes that you -- well, you can actually only
20 see one of them.
21 Q. Okay. And so that's how you control the flow
22 of water and levels in all three of the basins?
23 A. No. That's, that's just in the -- in the
24 large basin. We actually have a dual control. We have a
396
1 control at the large basin which was whatever I said,
2 003-A, and then we have additional control at the
3 settlement basin where the outfall exists.
4 Q. Can you look at Exhibit 52, please?
5 A. Yep.
6 Q. What does that show?
7 A. That is the, the actual outfall. And you can
8 see in the middle on the right-hand side the little
9 red-topped box. That's where a similar type weir that
10 I've just described, that's where that is.
11 Q. What's the function of that again?
12 A. Again, it's to control the water level within
13 the sediment basin.
14 Q. Okay. Where is the sediment basin from the
15 area that we can see on Exhibit 52, or is it part of it?
16 A. It's to the right. This isn't part of the
17 sediment basin, no. This is actually the -- it's -- the
18 outfall is in the bottom of the riprap trench. It's hard
19 to see, but there is a corrugated metal pipe that's
20 sticking out and is within the shadows.
21 MR. ETTINGER: Going to object at this point.
22 I thought a little of this was useful to give some
23 background on the mine, but at some point we've got to
24 relate this to the permit that we're talking about here,
397
1 as we did earlier when I was offering testimony with
2 regard to the mine and the permit conditions.
3 HEARING OFFICER: A relevancy objection?
4 MR. ETTINGER: Yeah. I have an objection to
5 relevance. A little bit was useful as background, but
6 it's gone way beyond that.
7 HEARING OFFICER: Mr. Blanton, can you explain
8 the relevancy?
9 MR. BLANTON: There's an issue in this case
10 about what is going to happen under precipitation events,
11 how this discharge will be managed, how it will be
12 controlled, how we have some idea that we're matching or
13 complying with the 3:1 dilution ratio, what we have to do
14 and how we can control sediment basin levels at times when
15 rain has stopped but there's still a lot of flow.
16 This is all pretty necessary information to
17 explain how this system operates and how we can, in fact,
18 be sure that we're complying with the permit, and that
19 it's not just a situation where every time it rains water
20 goes into the unnamed tributary. This is background
21 information on how this system operates.
22 MR. ETTINGER: The question, though, before us
23 now -- we don't disagree that you could run this mine
24 perfectly and do -- and run it properly and not have a
398
1 discharge that harmed anything. The question is, what
2 does the permit require them to do?
3 There is some useful information here. It's
4 by way of background in terms of the background of the
5 site. But all of this was -- this is post close of the
6 record, post permit issuance. And while -- you know, how
7 they are going to do this begins to become more and more
8 attenuated in its relevance once we get further and
9 further from what's required by the permit. The question
10 here is what's required by the permit.
11 HEARING OFFICER: Is this information that was
12 before the agency at the time of their decision?
13 MR. BLANTON: I believe that the agency
14 understood these things. I believe they can read
15 engineering drawings, and they know what it's going to
16 work like. It's obvious that the petitioner doesn't.
17 HEARING OFFICER: Regardless of whether they
18 understood it and what they can and cannot do, though, was
19 this before them at the time they made the decision?
20 MR. BLANTON: Were these photographs before
21 them? No.
22 HEARING OFFICER: The photographs that -- the
23 structures of --
24 MR. BLANTON: Our explanation of how --
399
1 HEARING OFFICER: And the system was in place.
2 MR. BLANTON: No, it was.
3 HEARING OFFICER: There was a proposed system
4 in place at the time of the agency decision?
5 MR. BLANTON: Yes.
6 HEARING OFFICER: And this is the realization
7 of the proposed system?
8 MR. BLANTON: Right.
9 HEARING OFFICER: I'm going let it go forward
10 for a little bit, Mr. Ettinger.
11 BY MR. BLANTON:
12 Q. So, how does water get from the sediment basin
13 into the outfalls that are shown in the left part of the
14 photograph?
15 A. Again, through this weir structure, the
16 red-topped box that you can see in the photograph, you
17 remove plates within the weir structure to control the
18 amount of water you want to let out.
19 Q. Can you look at Exhibit 53, please? What
20 does that show?
21 A. This is actually on the other side of the
22 road from the previous photograph. You can see in the
23 previous photograph that the water comes out of the base
24 of the hill, and it goes through these three corrugated
400
1 metal pipes under the road. And in Exhibit 53, this is
2 where the, the pipes exit on the other side of the road
3 into the unnamed tributary.
4 MR. ETTINGER: I'm going to object again and
5 ask where in the record before the agency there were
6 diagrams or plans that specified these corrugated pipes or
7 described the control structures and where that was in the
8 record before the agency.
9 MR. BLANTON: I believe that when an applicant
10 says in their construction application and the agency
11 writes conditions like on, I think, page five of the
12 permit that says that these structures of sediment basins
13 and discharge points is how we will control storm water,
14 the agency understood full well that this was the sort of
15 structure that was going to be built because that's the
16 way you do sediment basins in coal mines in Illinois and
17 have for decades. And no, I don't -- I also believe that
18 the permit application that went in to Mines and Minerals,
19 which consults with EPA, has detailed engineering drawings
20 for these things. I'll ask the witness that.
21 MR. ETTINGER: Well, if the question is what
22 did the agency understand, Mr. Blanton should have asked
23 these questions of the agency that wrote the permit
24 yesterday. Now we're hearing speculation from Mr. Blanton
401
1 as to what the agency understood based on its reading of
2 documents that are in the -- some of which are in the
3 record, but they certainly didn't see a picture that was
4 taken a couple of weeks ago in ruling on this permit.
5 HEARING OFFICER: Mr. Sofat?
6 MR. SOFAT: Agency would like to comment that
7 this is relevant because this shows -- this basically
8 translates the permit. This shows what Black Beauty's
9 interpretation of their permit is. So I think it's very
10 relevant to this proceeding and what the permit requires
11 and how that will be achieved.
12 HEARING OFFICER: Anything further,
13 Mr. Blanton?
14 MR. BLANTON: I could ask the witness more
15 foundation questions if you like.
16 HEARING OFFICER: I'm going to overrule the
17 objection and let it go forward for a little bit. But
18 more foundation is always helpful.
19 MR. BLANTON: Okay.
20 BY MR. BLANTON:
21 Q. Mr. Fry, when did Black Beauty submit
22 engineering drawings and specs for these settlement
23 basins and the control structures at the mine, if you
24 know?
402
1 A. They certainly did for the sediment basins.
2 Whether these -- the control structures are shown exactly
3 like this, I'm not positive.
4 Q. Is there anything unusual or unique about
5 these coal structures as compared to the sorts of
6 structures that are industry practice and standard in
7 this state for sediment basin control structures like
8 this?
9 A. Yeah, I would say there is. The weir box
10 itself is something that you wouldn't normally see.
11 Normally, you would see just a discharge pipe and an
12 emergency overflow channel so that the sediment basin
13 could discharge itself. And here we have a control on
14 this basin, and we have a control farther back in the
15 system to be able to control the water and let it out at
16 our desire as opposed to it flowing just whenever the
17 water reached a certain level.
18 Q. And was the fact that that was going to be
19 done part of the permit application information that was
20 submitted to these agencies, that it was going to be
21 controlled?
22 A. I believe so.
23 Q. And is -- on Exhibit 53, relating this back
24 to Exhibit 51, I believe -- excuse me, 50 which was the
403
1 drawing of uncontrolled areas at the outfall, is it this
2 material that's around the discharge pipes and the
3 adjacent areas, is that what you're talking about when
4 you say the backs of the dams in part?
5 A. Yes, in part.
6 Q. And is there also -- back on Exhibit 52, is
7 the area between the weir and the discharge pipe, is that
8 part of the collection system, or is that part of the
9 what you described as uncontrolled area?
10 A. That would be uncontrolled area.
11 Q. Okay. But that's -- the thing we're talking
12 about is riprap and grass and brush and trees?
13 A. Yes.
14 Q. And is that true in the other uncontrolled
15 areas that we talked about up on the north and the west
16 and northeast sides?
17 A. Up on the north end, I don't believe you'll
18 see any riprap up there. We put the riprap in to control
19 erosion from the outlet. But you would see the brush and
20 trees up on the north end, yes.
21 Q. What is the function of the settlement
22 basins? What control or treatment function do they
23 serve?
24 A. To reduce suspended, the settleable solids
404
1 and total suspended solids.
2 Q. How does that work?
3 A. It slows down the water. The sediments are
4 entrained by the movement in the water; and once the
5 water slows down, some of the sediment will drop out.
6 Q. In the course of your work for Black Beauty
7 and the regulatory affairs within the Indiana Coal
8 Council and so forth, have you learned anything about
9 runoff from agricultural lands and nonmining land as
10 compared to storm water runoff from controlled mining
11 areas like this that have sediment basin control systems?
12 A. Yes, I have.
13 Q. What did you learn about that?
14 A. Well, you can -- you can stand at a sediment
15 basin during a rainstorm and, for the most part or in
16 many instances, see clear water running from the sediment
17 basin into muddy water in the creek that's draining
18 agricultural fields. And it's a reasonable thing when
19 you think about it, that we have sediment basin
20 technology that's built to, to remove suspended
21 sediments, and the agricultural fields do not.
22 And I have taken samples of runoff from
23 agricultural fields and taken samples simultaneously from
24 the basins and seen -- in different mines in Indiana and
405
1 seen large differences, for example, 5,000 TDS from the
2 agricultural runoff as compared to less than 100 from the
3 mine area. And this is -- this is not a secret. This is
4 fairly well known with the professionals in the industry
5 and in the regulatory arena.
6 Q. In the course of obtaining this permit, how
7 did the size of the basins for the Vermilion Grove mine
8 compare to the industry standard and the normal way of
9 doing sediment basins like this?
10 A. There, they're very much oversized.
11 Q. What do you mean by that?
12 A. I mean they will hold a greater volume of
13 water and detain the water for a longer period of time,
14 detain runoff for a longer period of time than what would
15 have normally been built. The, the basin that was 003-A,
16 I believe, was -- our engineers tell me that it's
17 150 percent of what it would normally be, and the, the
18 outfall basin is 350 percent of what it normally would
19 be.
20 Q. And what is the effect on the -- excuse me.
21 How does that affect the ability of the basin to do what
22 it does which is allow the sediments to fall out before
23 they're discharged into the receding waters?
24 A. It increases its ability to reduce total
406
1 suspended solids.
2 Q. How?
3 A. By allowing a longer settling time.
4 Q. Are Black Beauty's operations at this mine,
5 the surface facilities, subject to inspection on a
6 regular basis by any regulatory authorities?
7 A. Absolutely.
8 Q. Can you describe the inspection regimen that
9 the mine would be subject to and already is?
10 A. The Department of Mines and Minerals will
11 normally inspect a mine at least once a month, and I
12 think that they have to do a full inspection on a
13 quarterly basis, and we may see them more than once a
14 month. Illinois EPA, I think that their requirements are
15 quarterly, although I think with this mine, as with some
16 other mines, that they may visit once a month. OSM, I
17 believe, makes quarterly inspections; that's the federal
18 counterpart. And MSHA, I believe, makes quarterly
19 inspections, although they tend to show up more
20 frequently.
21 Q. What is MSHA?
22 A. MSHA is Mine Safety and Health
23 Administration. Their -- they inspect underground coal
24 mines. Well, they inspect surface coal mines, too, but
407
1 they're -- they show up more frequently for underground.
2 Q. Do they have responsibility for confirming
3 the integrity of dams and other structures and
4 sediment -- and storm water control systems like this?
5 A. I believe that they do, but I don't believe
6 that they get involved with dams of this size. I think
7 it has to be a certain size before they actually have to
8 have approval.
9 Q. There was an issue in this case about how
10 Black Beauty will know whether or not there's a 3:1 ratio
11 of flow in the unnamed tributary and the flow in the
12 discharge from the sediment basins. Have you addressed
13 that issue in any way?
14 A. Well, it's hard to see, but in Exhibit 53,
15 there is a staff gauge in this picture, although I'm not
16 sure I'm going to have an easy time pointing it out to
17 anybody. Actually, there is two staff gauges, and one of
18 them is not in the picture.
19 Q. Can you take my pen and show where the one is
20 or draw a circle around it or mark it somehow?
21 A. (Witness complies.)
22 Q. Okay. Did you mark where that is?
23 A. Yeah.
24 Q. And how does a staff gauge function?
408
1 Hold the picture. How does the staff gauge
2 work and enable the people who are responsible for
3 controlling discharges to know whether they have a 3:1
4 dilution situation that will allow them, under the terms
5 of the permit, to discharge?
6 A. Well, you can actually calculate the volume
7 of water when it's passing the discharge point through
8 the, the basin characteristics and knowing the basin
9 characteristics. And you, you measure the geometry of
10 the stream and calculate the, the velocity by the basin
11 characteristics. And from that point, just a water level
12 can give you the volume. So, just a visual inspection of
13 that staff gauge can tell you what the volume is in the
14 stream. And you know what the volume is coming from your
15 basin because it's controlled by a discharge pipe that
16 you can calculate the volume of that flow. So, if you
17 know what your discharge pipe is, and once it reaches a
18 certain level on the staff gauge, then you know that you
19 have your 3:1 dilution.
20 Q. Is there anything, to your knowledge, unusual
21 from an engineering or operational standpoint about this
22 system of knowing whether you have 3:1 dilution or not?
23 A. No.
24 Q. You can put the photograph down. I want to
409
1 show you what's been marked as BBCC Exhibit Number 48.
2 MR. BLANTON: I'll note for the record that
3 this is a copy of the memorandum that Mr. Frevert
4 identified yesterday. It's found in the administrative
5 record at 933 to 937. We offer it as an independent
6 exhibit so it's easier to work with in the record.
7 MR. ETTINGER: No objection.
8 HEARING OFFICER: What's the number? 54?
9 MR. BLANTON: No, 48.
10 HEARING OFFICER: I missed one.
11 MR. HUBBARD: Fills in the gap.
12 MR. BLANTON: It fills the gap.
13 HEARING OFFICER: Mr. Sofat?
14 MR. SOFAT: No objection.
15 HEARING OFFICER: It's admitted.
16 (Whereupon, BBCC Exhibit Number 48 was marked
17 for identification.)
18 BY MR. BLANTON:
19 Q. One of the issues in this case that's been
20 raised and questions have been raised as to why the main
21 is where it is. Is that addressed in this document
22 anywhere at least in part?
23 A. Yes.
24 Q. Where?
410
1 A. I believe it's in the -- it's on the first
2 page near the top.
3 Q. Where it says Facility Location Alternatives?
4 A. Yes.
5 Q. Can you please explain why Black Beauty put
6 the mine where it is?
7 A. Well, somebody -- the engineers decided on
8 that, but I can attempt to, to give their reasonings.
9 The primary issue, I think, for them was rail access.
10 The mine is located near -- close to an active railway,
11 and it would be a short distance to, to tie into it with
12 a loop as opposed to going all the way across to Riola,
13 which it's questionable whether you can get the easements
14 to do that.
15 Q. If you didn't have close rail access, how
16 would you move coal from the plant to where you could
17 ship it from?
18 A. Well, you would either have to have an
19 additional rail siting, or you would have to truck it.
20 Q. So, in effect, is it the fact that it --
21 having it close to the rail reduces truck traffic at the
22 mine, or likely to?
23 A. Yes.
24 Q. Okay.
411
1 A. But that's, that's just one of the reasons.
2 The other reasons were that there was -- when Black
3 Beauty took over Riola, there was already a purchase of
4 or at least options on a certain amount of property there
5 at Vermilion Grove, so there was property in place.
6 There was proximity to the power lines. There was a
7 suitability of overburden for slope construction.
8 Certain geologic conditions are much, much more expensive
9 to try to put a slope into than others. There's
10 economics of conveyer lengths. If you try to stretch
11 your conveyers out too long or stretch your mains -- your
12 main tunnels in the mine out too far, you have long
13 travel times for your men, for them to get to the face to
14 where the coal's being mined. If it's an hour from your
15 entryway to the face where the work's being done and an
16 hour back, that's wasted production.
17 Additionally, when your mains are in for too
18 long of a period of time, you start getting deterioration
19 of roof conditions, and that can be a safety hazard and
20 expense. And there may be other reasons, but these are
21 the ones that the engineers have mentioned to me.
22 Q. In your memo to Bill Seltzer, you address
23 certain socioeconomic issues also, right?
24 A. Yes.
412
1 Q. At the bottom and the middle of page one?
2 A. Uh-huh.
3 Q. Where did you get the information that
4 appears there, the socioeconomic issues?
5 A. Oh, the, the calculations?
6 Q. Yes.
7 A. These were given to me by one of our
8 engineers that, that had used an in-plan economic model.
9 Q. Is that Carl Consolas (phonetic)?
10 A. Yes.
11 Q. And what's his position in the company?
12 A. He's a mining engineer.
13 Q. And is his memo to you and others found at
14 pages 936 -- excuse me, 935 through 937, the last three
15 pages of the exhibit?
16 A. Yes.
17 Q. Who are the other recipients of this memo
18 dated October 31, 2000?
19 A. Bruce Dousman (phonetic) is the manager of
20 the engineering department, and Mark Keeling (phonetic)
21 is the director of mining services.
22 Q. This memorandum is dated October 31, 2000.
23 Is that the date upon which you sent it to Bill Seltzer
24 at EPA; do you remember?
413
1 A. Yes, I believe that is the date that I sent
2 it to -- and I was trying to think about that from the
3 earlier testimony, and I'm not sure that I sent it
4 directly to Bill Seltzer. I may have sent it to Toby
5 Frevert or Bob Mosier with the understanding that they
6 would forward it to Bill Seltzer. But I don't remember
7 exactly.
8 MR. BLANTON: Would this be a good time to
9 take about a five-minute break?
10 HEARING OFFICER: That depends how much more
11 you have to go.
12 MR. BLANTON: Quite a bit.
13 HEARING OFFICER: Quite a bit?
14 MR. BLANTON: Yeah.
15 HEARING OFFICER: What do you need to take a
16 break for then?
17 MR. BLANTON: Okay. I'll keep going.
18 HEARING OFFICER: I mean, if you have a
19 pressing need, I'll, of course, take a break. But if
20 we've got quite a bit more --
21 MR. BLANTON: Okay, we'll keep going.
22 HEARING OFFICER: There's no reason. It's
23 already three.
24 MR. BLANTON: All right.
414
1 BY MR. BLANTON:
2 Q. In the course of your work doing permitting
3 and regulatory work, can you compare the requirements of
4 this permit to those that are what you're used to seeing
5 for coal mine operations like this?
6 A. The NPDES permits are, are substantially more
7 than what we're used to seeing, yes.
8 Q. In what ways?
9 A. Have you got a copy of the permit?
10 Q. It's in the record up there.
11 MR. BLANTON: May I approach? I don't
12 remember the number from yesterday. It's IEPA 1.
13 MR. HUBBARD: It's Exhibit 6.
14 MR. BLANTON: No, the final permit's IEPA 1.
15 MR. HUBBARD: Yeah, but it's your Exhibit 6.
16 BY MR. BLANTON:
17 Q. Give you what's been marked as Exhibit IEPA 1,
18 use that for reference.
19 A. Okay. The sediment basin size, as we
20 discussed earlier, is one example of something that we
21 did that was over what we would usually do. The biologic
22 monitoring requirements, I don't know of any other --
23 certainly none of our permits in Indiana or Illinois have
24 ever had biologic monitoring requirements.
415
1 Special condition twelve that requires the
2 monitoring for total and dissolved metals is something
3 that's beyond the normal permit. The total mercury is
4 beyond the normal permit.
5 Q. Are there things to test for or record
6 under -- that are required under special condition twelve
7 that are not the sorts of things that are associated with
8 coal mine operations?
9 A. Yes. In my opinion, total ammonia. We use
10 no ammonia at the site and don't intend to use any
11 ammonia at the site, yet we have the obligation to test
12 for ammonia.
13 Q. And others?
14 A. Yes. Dissolved oxygen wouldn't be a normal
15 parameter for a coal mine, and I really don't think that
16 it can be justified scientifically.
17 Q. You had mentioned the metals testing. Has
18 there been, in the course of development of federal and
19 state regulations for coal mines, the issue of what types
20 of pollutants and contaminants that result from mining
21 operations are common?
22 A. Yes. The mine effluent was studied
23 extensively in the middle Seventies and the early
24 Eighties.
416
1 Q. By whom?
2 A. By the federal EPA and OSM, and part of
3 SMRCA.
4 Q. What is OSM?
5 A. Office of Surface Mining.
6 Q. What's SMRCA?
7 A. Surface Mining and Reclamation Act.
8 Q. Go ahead. What were the results of those
9 studies, and how did that impact the regulatory regimen?
10 A. The results of the studies were federal
11 standards for coal mines, and they determined that
12 sediment basins were the best ways -- was the best method
13 to treat coal mine effluent. And they developed a set
14 of, of standards -- effluent standards to go along with
15 the sediment basins.
16 Q. And what are the effluent standards that are
17 generally developed for that length; what items were
18 found to be the things of concern in coal mines?
19 A. Iron, manganese, pH, total suspended solids,
20 and settleable solids, to the best of my recollection.
21 They tested large numbers of, of effluent streams from,
22 from many different coal mines, and they tested them for
23 inorganic and organic parameters; and they did get a few
24 hits on other metals, but they found that when the iron
417
1 was in -- was within specified limits that they didn't
2 see elevations of these other metals. So iron and
3 manganese provided a indicator parameter for what little
4 other hits that they did have on metals.
5 Q. What do you mean by an indicator parameter?
6 A. It's a parameter that can be used as opposed
7 to doing a whole list of parameters. There may be a
8 chemical that's -- or a parameter that's fairly
9 conservative that, that would show up if the water was
10 being affected.
11 Q. How does sulfates and chlorides come into the
12 regulatory regime with respect to coal mines and mines
13 like the Vermilion Grove mine specifically?
14 A. Well, sulfates and chlorides are not part of
15 the federal standards. They're not part of the Indiana
16 standards. They're not part of many -- the standard for
17 many states for coal mines. Sulfates and chlorides were
18 something that Illinois added themselves, along with
19 acidity and alkalinity.
20 Q. And what is the source of concern or the
21 source of chlorides in association with coal mining in
22 Illinois, if you know?
23 A. I'm not sure I understand the question.
24 Q. There's --
418
1 A. What's the --
2 Q. What's the connection between chlorides and
3 coal mines in Illinois? Why are chlorides associated
4 with coal mining operations in Illinois?
5 A. Well, chlorides can be associated with
6 shells, especially marine shells.
7 Q. And what would be the source of sulfates in
8 connection with mining operations?
9 A. Sulfates are generally the result of the
10 dissolution of pyrite, iron sulfates.
11 Q. How does that occur?
12 A. The pyrite's exposed to oxygen and water, and
13 the result is sulfates, iron, and lower pH.
14 Q. And is there an opportunity at the Vermilion
15 Grove mine for there to be pyrites affected so as to
16 create sulfates?
17 A. I believe that it's -- it is a fairly low
18 sulfur coal, but yes, there would be pyrites associated
19 with the coal and the -- with the foreign material.
20 Q. What about any of the material that would be
21 on the surface of the mine or at the surface areas of the
22 mine? Would there be any -- would there be any portions
23 of the surface areas of the mine where the generation of
24 sulfates or creation of sulfates might occur?
419
1 A. In the coal yard.
2 Q. How would that happen?
3 A. In the coal yard and potentially in the
4 refuse pile.
5 Q. How would that happen?
6 A. By the oxidation of pyrite.
7 Q. And is it -- to your understanding is that
8 why those parameters are listed in the permit for the
9 discharge from waters that have been in contact with an
10 area?
11 A. Absolutely.
12 Q. Were you here when Mr. Moore testified
13 regarding his visits to the unnamed tributary and his
14 description of it?
15 A. Yes.
16 Q. Have you visited the unnamed tributary
17 areas --
18 A. Yes.
19 Q. -- that he was talking about?
20 A. Yes.
21 Q. Are you -- what you believe he's talking
22 about?
23 A. Yes.
24 Q. What was your impression of the area?
420
1 A. I'm not sure how you mean that.
2 Q. Does it show -- is there any evidence of it
3 having been disturbed or used or having human impact on
4 it?
5 A. Oh, yes.
6 Q. Before the mine came in?
7 A. Yes, there was definite human impact.
8 Q. In what way?
9 A. There are numerous dumps along the unnamed
10 tributary of refrigerators and other white goods, cars,
11 that sort of thing. There's definite human impact there.
12 Q. Let me show you what's been marked as
13 Exhibits BBCC 54 and 55 and ask if those are two
14 additional photographs you've taken?
15 A. Yes.
16 Q. When did you take them?
17 A. I believe last Thursday.
18 Q. And what do they -- where were they taken?
19 A. These two locations are, are very close
20 upstream from the NPDES outfall.
21 MR. BLANTON: We offer Exhibits BBCC 54 and
22 55.
23 HEARING OFFICER: Mr. Ettinger? Objection?
24 MR. ETTINGER: I guess not.
421
1 HEARING OFFICER: Mr. Sofat?
2 MR. SOFAT: No objection.
3 HEARING OFFICER: Those will be admitted.
4 (Whereupon, BBCC Exhibit Numbers 54 and 55
5 were marked for identification.)
6 BY MR. BLANTON:
7 Q. One of the issues in the case that's been
8 raised by the petitioner is whether or not the -- I
9 probably won't get this term right -- the biological
10 survey, biological inventory should have been required
11 before the permit was issued or before mining operations
12 occurred. Are you familiar with that issue generally?
13 A. Yes.
14 Q. Has Black Beauty submitted a plan for
15 carrying out the biological inventory?
16 A. Yes.
17 Q. I want to show you what's been marked as BBCC
18 Exhibit 56. Please look through the entire document and
19 tell me, are these documents relating to the biological
20 inventory requirements of the permit?
21 A. I believe they are.
22 MR. ETTINGER: Is Mr. Blanton now attempting
23 to prove compliance with the permit, or what is the
24 relevance of this?
422
1 HEARING OFFICER: Mr. Blanton?
2 MR. BLANTON: Do you have an objection?
3 MR. ETTINGER: Yes, objection.
4 HEARING OFFICER: Leave the specifics to me.
5 Do you have a response to that statement he made?
6 MR. BLANTON: I believe it's quite relevant.
7 The petitioner's complaining that the fact that this was
8 done -- was not required before the permit was issued is a
9 flaw in the permit, and there is potential adverse impact
10 on the environment or water quality or whatever it is.
11 And what we're attempting to show is that -- the fact that
12 it wasn't required to be done at the time they want it to
13 be done is of no significance for the issues that they've
14 raised in the case.
15 HEARING OFFICER: How does this do that?
16 MR. BLANTON: By showing that it has, in fact,
17 been carried out before there are any activities that
18 would involve contact of water with coal which is the
19 situation that would have any relevance to the biological
20 inventory.
21 MR. ETTINGER: Well, that's his -- we disagree
22 on an interpretation of the permit, and this is ultimately
23 a legal issue, as to what were the mining activities that
24 the permit required, that the biological inventory be done
423
1 before. It's their position that the permit states that
2 they didn't have to do this biological inventory until
3 water came in contact with coal.
4 It's our position that the site preparation
5 activities which resulted in a large storm water release
6 of pollutants eroded and destroyed the baseline conditions
7 and, as a result, the study that was done here is not the
8 study that should have been done or that we would have
9 liked to have seen done, had the permit been clearer in
10 requiring the true baseline conditions be taken.
11 So, this does not really address our dispute
12 which relates to what was supposed to be in the permit,
13 not what was done subsequently.
14 HEARING OFFICER: Anything further,
15 Mr. Blanton?
16 MR. BLANTON: It's certainly relevant to our
17 theory of what the permit requires and what it needed to
18 require. What it shows is that the way the permit works
19 is a perfectly fine way of administering the requirements
20 of the act and the permit.
21 HEARING OFFICER: Mr. Sofat?
22 MR. SOFAT: No comment.
23 MR. BLANTON: I think basically we're entitled
24 to advance the evidence that supports our theory of the
424
1 case.
2 HEARING OFFICER: Well, you're entitled to
3 advance it if it's relevant and applies to the case in
4 point which is what I'm trying to decide right now. I am
5 going to let it go forward for a little bit. The
6 objection is overruled, noted for the record. But it
7 seems to me to be a bit tenuous, and I don't want to waste
8 too much time on it.
9 BY MR. BLANTON:
10 Q. Was the biological inventory plan proposed by
11 Black Beauty approved with some modifications by the
12 agency?
13 A. I can't tell you that. I would assume that
14 it has been. I haven't been involved in that.
15 Q. Has the biological inventory -- at least has
16 it begun?
17 A. Yes.
18 Q. Show you what's been marked as Exhibits 57 --
19 BBCC 57 and 58 and ask you if those are photographs that
20 you took --
21 A. Yes.
22 Q. -- last Thursday? What do they depict?
23 A. They depict biological inventory in progress.
24 MR. BLANTON: We offer BBCC Exhibits 56 and
425
1 57.
2 MR. ETTINGER: I'm sorry, what's the numbers?
3 HEARING OFFICER: Have you had a chance --
4 MR. BLANTON: They're 57 and 58.
5 HEARING OFFICER: -- to look at those,
6 Mr. Ettinger?
7 MR. ETTINGER: Which are these? Are these
8 then pictures of their people in the water?
9 MR. BLANTON: Yes.
10 MR. ETTINGER: Looks like fun. No objection.
11 MR. SOFAT: No objection.
12 HEARING OFFICER: They will be admitted.
13 (Whereupon, BBCC Exhibit Numbers 57 and 58
14 were marked for identification.)
15 BY MR. BLANTON:
16 Q. One of the issues in the case, as I understand
17 it, as raised by Petitioners is that the testing that --
18 basically condition twelve as required because of a lack
19 of information about the potential impact of certain
20 components or constituents of the outfall 3 discharge on
21 certain species. Do you understand that to be an issue?
22 A. Yes.
23 Q. And have you looked at some previous
24 rulemaking and other proceedings before the Pollution
426
1 Control Board that you believe address that topic?
2 A. Yes.
3 MR. ETTINGER: Objection. We're not going to
4 hear the witness now testify as to his interpretation of
5 the court opinions?
6 MR. BLANTON: We are laying a foundation.
7 HEARING OFFICER: Let him finish the question.
8 Was that it, Mr. Ettinger?
9 MR. ETTINGER: I'm sorry. I hope that we're
10 not going ask the witness now to interpret a Board
11 opinion.
12 MR. BLANTON: Nope.
13 MR. ETTINGER: Thank you.
14 HEARING OFFICER: Proceed.
15 BY MR. BLANTON:
16 Q. Can you tell me generally what the materials
17 were that you looked at in that regard?
18 A. I looked at the proceedings and findings of
19 the Illinois Pollution Control Board. I was looking for
20 the, the reasoning behind the 3500 and 1,000 levels for
21 sulfates and chlorides, and believe that those -- -- it's
22 clear in the proceedings that those numbers were actually
23 based on a biologic study done by the Illinois Water
24 Survey.
427
1 MR. ETTINGER: Well, he's testifying as to
2 exactly what I objected to, which is he's now telling us
3 what the Board's numbers were based on. The record in the
4 proceedings that shows those numbers presumably shows what
5 the Board relied on, if the Board's opinion doesn't
6 itself, and we certainly don't need a witness and should
7 not have a witness to interpret either Illinois law or the
8 Board's opinions.
9 MR. BLANTON: Was there a -- I'm sorry.
10 HEARING OFFICER: Go ahead.
11 MR. BLANTON: Was there --
12 HEARING OFFICER: Are you responding to
13 Mr. Ettinger?
14 MR. BLANTON: Can I ask a preliminary question
15 for foundation before I respond?
16 HEARING OFFICER: Let's hear the question. If
17 Mr. Ettinger has a further objection, we'll move back and
18 address them both.
19 BY MR. BLANTON:
20 Q. Did you find a reference to a study conducted
21 in Illinois regarding the possible toxic effect of
22 chlorides and sulfates on some fishes in Illinois
23 referenced in the materials from the Pollution Control
24 Board that you reviewed?
428
1 A. Yes.
2 Q. And are those materials you reviewed the two
3 exhibits for which we asked the Board to take official
4 notice earlier today?
5 A. Yes.
6 Q. And have you located the study that is
7 referenced in that -- in one of those documents?
8 A. Yes.
9 Q. I'm going to show you what's been marked as
10 Exhibit BBCC 60 and ask if that's a copy of the study
11 that's referenced in the document that we asked the Board
12 to take official notice of?
13 A. Yes.
14 MR. BLANTON: We offer Exhibit BBCC 60.
15 MR. ETTINGER: Can I see -- is this the --
16 MR. BLANTON: It's the only copy we've got.
17 MR. ETTINGER: Is this -- can we get a -- is
18 this what we saw this morning?
19 MR. BLANTON: No.
20 HEARING OFFICER: I think this is a study that
21 was mentioned in these court opinions, if I'm not
22 mistaken.
23 MR. ETTINGER: So, we're just saying was this
24 in the -- is this in the -- we've just testified that this
429
1 is in the Board's official records of --
2 HEARING OFFICER: No. Let me clarify. And
3 correct me if I'm wrong, Mr. Blanton, but I think we've
4 testified that this witness saw mention of this study in
5 the Board's records.
6 MR. BLANTON: That's correct.
7 HEARING OFFICER: He didn't actually say the
8 study was incorporated into the Board's prior proceeding,
9 at least that's my understanding.
10 MR. BLANTON: That's correct.
11 HEARING OFFICER: How do you feel about this,
12 Mr. Ettinger?
13 MR. ETTINGER: Well, I -- if it was in the
14 Board's record and is an official document, it can be
15 cited for whatever it's worth. And certainly the Board
16 decision, to the extent it refers in this, can be recited
17 as an authority. It's not been shown that this is part of
18 this permit record, and I don't see its relevance, and I
19 don't to this permit proceeding.
20 HEARING OFFICER: Can I take a look at it?
21 Mr. Sofat, do you have an objection?
22 MR. SOFAT: No. In fact, the agency believes
23 that this should be admitted.
24 MR. BLANTON: Before you rule on it --
430
1 HEARING OFFICER: Do we have the authors
2 available or anything from them?
3 MR. BLANTON: I doubt it.
4 HEARING OFFICER: All right. Before I rule,
5 do you have something to say?
6 MR. BLANTON: Yes. I -- since you have the
7 document, I can't tell you what the exact -- the exact
8 depiction of this document is, but it is a publication of
9 the state water survey, division of the water quality
10 section of the Illinois Department of Energy and Natural
11 Resources. It is a contract report prepared for and
12 funded by the Illinois Environmental Protection Agency,
13 Division of Water Pollution Control, dated September 1981.
14 It is an official document. And a report of a study
15 funded by this state, I believe, on its face it is
16 admissible in this proceeding because it certainly
17 addresses the issue of whether condition twelve is
18 adequate as a means of -- and the other controls in the
19 permit are adequate for reasonable people to decide
20 that what the permit requires is adequate to protect and
21 investigate status of these biota and what our discharge
22 may do to them. I think, on its face, it's admissible on
23 the question of toxicity without regard to whether Mr. Fry
24 found it.
431
1 HEARING OFFICER: Well, I -- that's what we're
2 here to decide. Let's see what Mr. Ettinger has to --
3 final reply, then I'll rule.
4 MR. ETTINGER: I do not -- I believe in
5 wide-open proceedings, and Prairie Rivers believes that we
6 should have all the evidence -- scientific evidence
7 possible on, on these scientific questions. The problem
8 here is we're now being asked to review an administrative
9 record, and this was not in the administrative record or,
10 to our knowledge, it was not referred to by the agency in
11 this proceeding. And so if one wishes to cite a published
12 study or -- and we certainly believe that people should
13 use this sort of evidence in writing permits, but it's not
14 in this hearing record.
15 HEARING OFFICER: I'm going to deny this. I
16 don't think it was before the Illinois Pollution -- excuse
17 me, Illinois Environmental Protection Agency when they
18 made the decision. Not only that, I don't know that
19 proper foundation has been laid, so I'm going to deny it.
20 MR. BLANTON: May I make one more comment on
21 it?
22 HEARING OFFICER: You sure may.
23 MR. BLANTON: I guess it goes back to the
24 general nature of, what does the agency have to do to
432
1 issue an individual permit? I mean, I spend most of my
2 professional time in opposition to various regulatory
3 agencies, and all I hear is what they do should be
4 deferred to by the courts and everyone else because of
5 agency expertise and experience in situation after
6 situation after situation in which every bit of experience
7 and expertise that every person in that agency has in
8 their heads after years of working is not part of the
9 record.
10 I think if we're proceeding in which the
11 petitioner is trying to prove that U.S. EPA, Illinois EPA,
12 Illinois DNR, both the mining people and the endangered
13 species people have no basis for concluding that condition
14 twelve in the 3:1 dilution ratio and all the other
15 conditions in this permit that are beyond anything that's
16 normal, that are beyond the requirements of Illinois rules
17 according to Mr. Frevert, that they can't -- that they
18 have to go write down every bit of information that they
19 know, every discussion they have, every document that
20 they've ever read that gives them knowledge and judgment,
21 I think that is a completely unworkable way to run a
22 government, and I think that's not what the law requires
23 of them.
24 And when we come in after the fact to show,
433
1 look, these people didn't just make this up, it wasn't the
2 first time they ever heard of these issues, look at this
3 wealth of material over decades that's part of their
4 agency expertise and experience, the petitioners don't
5 like it. I don't see -- it cuts both ways. If you're
6 going to have agency expertise, I think we're entitled to
7 show that they, in fact, have -- that that might be
8 justified from time to time.
9 HEARING OFFICER: I agree, Mr. Blanton. And
10 if the agency people who made the decision are on the
11 stand, they can testify about what they relied upon.
12 However, nobody's done that to this point in time. What
13 we have here is a report from 1981. It was not in the
14 record, it was not included in the record. And the law is
15 very clear that the Pollution Control Board has to look at
16 the agency record when making this decision. This was not
17 in the record.
18 Not only that, I don't think it was
19 properly -- I don't think foundation was properly laid for
20 it. We have a report made by Paul Reed and Ralph Evans.
21 We don't have Paul Reed or Ralph Evans here. We don't
22 know what this contains. We don't have any proper
23 foundation laid for this at all except for the fact that
24 this witness saw it in a Illinois Pollution Control Board
434
1 rulemaking and obtained the report. We don't know if the
2 Illinois Pollution Control Board made it part of the
3 record of the underlying proceeding that you've asked us
4 to take official notice of. And it -- unless we know some
5 of those things or unless we have someone who can provide
6 how this document was made, what it was made for, the
7 reasons why it was made, what it was used for in the
8 Illinois Pollution Control Board proceeding, I'm not going
9 to allow it in, so it's denied, and that's it.
10 Let's move on. We can go off the record, if
11 you want, if you have some point of clarification.
12 MR. HUBBARD: The only question I have was
13 were 57 and 58 admitted?
14 HEARING OFFICER: That's a fine question. I
15 don't -- yes, they were. They were both admitted.
16 MR. HUBBARD: Correct my notes. Thank you.
17 BY MR. BLANTON:
18 Q. The record in this case, Mr. Fry, indicates
19 that there are ratings of the Little Vermilion River that
20 were referenced by various witnesses about it being an A
21 stream and a B stream and things of that nature. Are you
22 familiar with that?
23 A. Yes.
24 Q. I'm going to show you what's been marked as
435
1 BBCC 59 and ask you what that is?
2 A. This is a EPA study entitled Intensive Survey
3 of Little Vermilion River as Affected by Seasonal
4 Variation, 1992.
5 MR. BLANTON: I'll note for the record that
6 this is a publication of the Illinois Environmental
7 Protection Agency, Bureau of Water, dated August 1993.
8 It is a document identified as IEPA/WPC/93/139. It was
9 referred to -- I believe this is accurate -- by both
10 Ms. Grosboll and Ms. Glosser in their deposition
11 testimony. It was part of the basis for statements in
12 their letters that are part of the administrative record,
13 all of which have been identified individual exhibits in
14 this case.
15 We offer BBCC Exhibit 59.
16 HEARING OFFICER: Mr. Ettinger?
17 MR. ETTINGER: Was this in the administrative
18 record?
19 MR. BLANTON: It is a document that was
20 referred to by those persons who the petitioner rely on
21 and cite in their letters in the administrative record,
22 and those persons have testified it is the basis for their
23 statements that are part of the administrative record.
24 MR. ETTINGER: In that case, no objection.
436
1 HEARING OFFICER: Mr. Sofat?
2 MR. SOFAT: No objection.
3 HEARING OFFICER: This will be admitted.
4 (Whereupon, BBCC Exhibit Number 59 was marked
5 for identification.)
6 BY MR. BLANTON:
7 Q. Have you read this document, Mr. Fry?
8 A. Yes.
9 Q. Are you familiar with it?
10 A. Yes.
11 Q. What does it generally -- what sort of
12 information is contained in it?
13 A. Well, it's generally a study, I believe,
14 beginning in '89 of the Little Vermilion River where they
15 looked at the biology and some water chemistry of
16 different sites along the Little Vermilion in the area of
17 the mine and beyond.
18 MR. ETTINGER: Excuse me. Was Mr. Fry
19 qualified as a biologist?
20 MR. BLANTON: He's qualified to read -- I'm
21 sorry.
22 HEARING OFFICER: Go ahead. You can respond.
23 Was that an objection?
24 MR. ETTINGER: Are you a biologist, Mr. Fry?
437
1 HEARING OFFICER: Hold on, hold on.
2 MR. ETTINGER: Objection.
3 HEARING OFFICER: If you have an objection,
4 make your objection and allow him to respond.
5 MR. ETTINGER: I apologize.
6 HEARING OFFICER: Okay.
7 MR. ETTINGER: My objection -- I object to
8 Mr. Fry offering his interpretation of this document which
9 is now in the record that we can all read for ourselves
10 unless he has some special qualifications that enables him
11 to read it any better than the rest of us.
12 HEARING OFFICER: Okay. Mr. Blanton?
13 MR. BLANTON: I think the witness can read
14 English, and all I'm asking is what's the nature of the
15 information in there. I'm not asking him to interpret it.
16 I'm asking him to provide some -- you know, give us a
17 point in there that I want to draw his attention to and I
18 want the proceedings to be drawn to.
19 MR. ETTINGER: Well, that's my point exactly.
20 We can all read English, we hope, and if, if Mr. Blanton
21 wants to draw his -- our attention to this subsequent to
22 the hearing, he can put that in his brief, and he can
23 refer to this exhibit which I did not object to its
24 admission.
438
1 HEARING OFFICER: I'm going to sustain the
2 objection. If you want to direct his attention to a
3 particular bit of this exhibit to elicit testimony, that
4 would be okay.
5 MR. BLANTON: All right.
6 BY MR. BLANTON:
7 Q. Mr. Fry, when you were taking pictures last
8 Thursday, did you go on the Little Vermilion River below
9 the dam through the Carl Fliermans Nature Preserve?
10 A. I wasn't able to go through the Carl
11 Fliermans Nature Preserve, but I did go beyond it, yes,
12 on the Little Vermilion River.
13 Q. I want to show you what's been marked as
14 Exhibit -- BBCC Exhibit 61, ask you if that's a
15 photograph that you took in that area?
16 A. Yes.
17 Q. How far away from what you understand to be
18 the boundaries of the Carl Fliermans Nature Preserve is
19 this?
20 A. I'd have to look at a map.
21 Q. I'll show you a map in a minute, but it's
22 nearby?
23 A. It may be a mile or so.
24 Q. Is it closer than the mine is?
439
1 MR. BLANTON: I'll withdraw that. I'll offer
2 the exhibit at this point.
3 HEARING OFFICER: Mr. Ettinger?
4 MR. ETTINGER: No objection.
5 HEARING OFFICER: Mr. Sofat?
6 MR. SOFAT: No objection.
7 HEARING OFFICER: It's admitted.
8 (Whereupon, BBCC Exhibit Number 61 was marked
9 for identification.)
10 BY MR. BLANTON:
11 Q. In Exhibit 61, is there anything depicted in
12 Exhibit 61 that might be related to coal mining?
13 A. Yes.
14 Q. What?
15 A. The, the talus that you see along the banks
16 there is, is mine spoil. This area has been extensively
17 surface-mined. If you were to, to -- in the area of the
18 river, there are large spoil ridges from, from mining.
19 There's a final-cut lake within 50 feet of the Little
20 Vermilion River, and obviously here, this is mine spoil
21 right on the banks of the Little Vermilion River.
22 Q. I'm going to show you what's been marked as
23 Exhibit BBCC 62 and ask you what that is?
24 A. This is the topographic map -- this is a
440
1 topographic map that shows the area in -- surrounding the
2 mine, and it shows the locations of both strip mines and
3 underground mines in the watershed of the Little
4 Vermilion below the mine.
5 MR. BLANTON: We'd offer Exhibit BBCC 61 --
6 excuse me, 62.
7 HEARING OFFICER: Mr. Ettinger?
8 MR. ETTINGER: I object. Was this in the --
9 was this in the agency record?
10 MR. BLANTON: I believe the fact that these
11 mines exist is known to the agency.
12 MR. ETTINGER: Well --
13 MR. BLANTON: This map is not part of the
14 agency record.
15 MR. ETTINGER: Is this an illustration of
16 facts that are presented somewhere in the agency record?
17 MR. BLANTON: Every time anyone in the agency
18 makes a statement in a document that is a matter of
19 judgment and professional opinion, the petitioner says
20 they have no basis for that, it's unreasonable, they must
21 document it. This is part of what people who are making
22 the decision on this permit know. It is part of what --
23 it's part of what the area is that we're talking about.
24 And if the judgment is, are the conditions in the permit
441
1 reasonable under the circumstances or must you try to
2 start basic science from ground zero with respect to these
3 endangered species and the quality of this river, I think
4 we're entitled to show that what is common knowledge and
5 what the actual facts are on the ground is relevant to
6 whether the judgments of the agency in issuing the permit
7 were reasonable in this proceeding.
8 There are disputed facts about whether the
9 conditions are sufficient and adequate, whether the
10 agencies should have required more information or whether
11 they were entitled to rely on their experience and
12 expertise. This is part of the background information
13 that is known. It's part of what the world is out there.
14 HEARING OFFICER: Well, I understand, but that
15 doesn't mean it's admissible yet. Mr. Sofat?
16 MR. SOFAT: Agency has no objection and
17 believes it should be -- I think it describes the nature
18 of the nature preserve that Petitioner talks about.
19 HEARING OFFICER: I'm sure it does. However,
20 is this or something similar to this in the record as what
21 the agency relied on at the time they made their decision?
22 MR. SOFAT: I think it should go in under
23 Mr. Ettinger's philosophy of open hearing.
24 HEARING OFFICER: As much as I respect
442
1 Mr. Ettinger, I'm not too concerned about his philosophy
2 of open hearings. What I want to know is whether this was
3 something that the agency had before it or something
4 similar to what the agency had before it. And I'm not
5 content to rely upon the basic agency knowledge. As much
6 as I respect people who work for the agency, I'm not
7 always that enthused about their knowledge, and I wouldn't
8 want to take it for granted that they have knowledge of
9 the topography of the site.
10 MR. ETTINGER: And there are specific -- I
11 mean, even if it were the case -- and we don't know what
12 the unnamed agency permit writers might have known other
13 than what they state in the record, that there's all sorts
14 of specific information here as to particular coal mines
15 and when they were closed at particular times.
16 HEARING OFFICER: Is that true? I haven't
17 seen the exhibit.
18 MR. ETTINGER: I understand. And certainly to
19 believe that that's sort of the common base of knowledge
20 of whoever had input into this record is, is making a
21 remarkable leap of, of presumption as to what the agency
22 permit writers knew.
23 HEARING OFFICER: All right. Since we're all
24 making sweeping statements about the philosophy of the
443
1 process, the agency record is what we base our decision on
2 for a reason. We don't want to make it an overreview;
3 we're not allowed to make it an overreview. We have to
4 base -- we, the Illinois Pollution Control Board, have to
5 base our decision on what was before the agency at the
6 time of the decision.
7 MR. BLANTON: May I tie it?
8 HEARING OFFICER: If you could.
9 MR. BLANTON: All right. In Caroline
10 Grosboll's first letter to the agency expressing concern
11 about the mining permit, there are statements about the
12 Fliermans Nature Preserve and the potential effects of
13 coal mining on that kind of -- on that area specifically.
14 In Deanna Glosser's letter, there is extensive -- there is
15 a reference to acid mine drainage from abandoned mines and
16 how terrible that is and how that will be really bad for
17 the river, and how she's particularly concerned about the
18 effect of that on the Carl Fliermans Nature Preserve.
19 She's supposed to be an expert who would know
20 the conditions of the -- of the species that she's raising
21 questions about. And if she's using it as a reference
22 point, I think the -- this evidence, which is directly
23 germane to what the conditions of the Carl Fliermans
24 Nature Preserve are, directly relate to the concerns
444
1 raised by these two agencies which are specifically relied
2 upon in Petitioner's petition for review of this permit.
3 One of their key points early in their
4 petition is this permit should be denied, specifically
5 because of these letters written by Caroline Grosboll and
6 Deanna Glosser, both of which were specifically tied to
7 the Fliermans Nature Preserve. The question of whether
8 those concerns have been adequately addressed and what
9 this exhibit shows is that the Fliermans Nature Preserve
10 is smack dab in the middle of unreclaimed coal land. And
11 what is, therefore, reasonable for the agency to respond
12 to those concerns is directly relevant and tied to the
13 record that the agency relied on and the evidence in the
14 record that the petitioners rely on. They want you to be
15 concerned about the preserve, but they don't want you to
16 know where it is or what it's like.
17 HEARING OFFICER: Well, and as much as -- let
18 me respond. I don't much care about what they want me to
19 be concerned about either, you know. No offense,
20 Mr. Ettinger, but I am here strictly to let evidence into
21 the record and the Board's record that I think is
22 appropriate. And what either party is concerned about
23 doesn't bother me.
24 You reference conditions of the site. Correct
445
1 me if I'm wrong. Didn't you refer to biological
2 conditions?
3 MR. BLANTON: No, it was not limited to that.
4 It was referenced generally to this preserve and what a
5 wonderful resource it is and how it should not be
6 contaminated by coal mining or related activities.
7 HEARING OFFICER: Understood. This map is a
8 topography map, correct?
9 MR. BLANTON: No, it shows the location --
10 HEARING OFFICER: Someone show me the map.
11 MR. BLANTON: I'm sorry. This is the -- may I
12 come up?
13 HEARING OFFICER: Yeah.
14 MR. BLANTON: This is the nature preserve.
15 What it shows is mines all up and down this river. That's
16 the area that they say has been unaffected by any of this
17 before.
18 HEARING OFFICER: Anything further,
19 Mr. Ettinger?
20 MR. ETTINGER: I have -- if the agency had
21 created this map in response to the comments that
22 Mr. Blanton refers to and had put this in the record of
23 the permit, then it would be in the record, and we'd have
24 all this information and the public would have had an
446
1 opportunity to look at this while the agency record was
2 open. However, the agency didn't choose to put any of
3 this information in the record or respond to the letters
4 that Mr. Blanton refers to. And that is the record that,
5 at this point, we have to judge the permit on.
6 HEARING OFFICER: Mr. Sofat, anything?
7 MR. SOFAT: We have no objection to
8 introduction of this map.
9 MR. BLANTON: May I make one more statement,
10 Mr. Knittle?
11 HEARING OFFICER: Yes, please.
12 MR. BLANTON: We had discussion at the very
13 first prehearing conference on this on what the nature of
14 this proceeding would be and whether the record can be
15 supplemented. And at that time, no decisions were made.
16 We had the subject come up again with respect to
17 depositions. We began this hearing with Mr. Ettinger
18 calling witnesses to talk about things that are related
19 to, supplemental to the record.
20 I think it's clear the petitioner chose the
21 nature of the hearing by starting to call witnesses, and
22 there is no difference of us putting in facts about the
23 Carl -- the Carl Fliermans Nature Preserve which is
24 relied -- which is related to the testimony and the
447
1 documents in the record by other witnesses than there is
2 for the petitioner to call their witnesses to talk about
3 the same things or related things to what they already put
4 in the record. If a witness can say, I sent this letter,
5 and now I'm going to tell you about it and be
6 cross-examined on it, that is no different than them
7 putting a document in the record --
8 HEARING OFFICER: Well --
9 MR. BLANTON: -- saying, This is what I think,
10 and me putting a different document in to contradict it.
11 There's no -- there's no difference from an evidentiary or
12 scope of the proceeding.
13 HEARING OFFICER: Well, the only difference I
14 can see is that what he did was not objected to, and this
15 has been objected to, and I am not estopped from making a
16 ruling just because we let it in earlier if I think it's
17 the proper ruling. And I'm going to deny this. I don't
18 think it's part of the agency record. I don't think it's
19 sufficiently related to go into the Board record. I don't
20 think it's anything that I've been shown that the agency
21 relied upon in making its final decision.
22 And as you all know, the agency is required to
23 put anything that they relied upon in making its final
24 decision into their record, and that's what we base our
448
1 proceedings upon. So, this exhibit is denied.
2 MR. BLANTON: Could we have a five-minute
3 break while I figure out what to wrap up with?
4 HEARING OFFICER: How much longer do you think
5 we have?
6 MR. BLANTON: That depends on what this is.
7 It's one topic or none.
8 HEARING OFFICER: Okay. If it's --
9 MR. BLANTON: I need to talk to my client.
10 HEARING OFFICER: Understood, but you seem to
11 be reticent in giving us estimates about how long it's
12 going to take. If, in fact, it's going to go forward,
13 about how long do you think?
14 MR. BLANTON: If it goes forward?
15 HEARING OFFICER: If your topic goes forward?
16 MR. BLANTON: Five minutes.
17 HEARING OFFICER: Yeah, sure. Take five
18 minutes. Let's go.
19 (A recess was taken.)
20 HEARING OFFICER: Back on the record.
21 Mr. Blanton?
22 MR. BLANTON: Yes.
23 BY MR. BLANTON:
24 Q. The last thing I want to cover with you,
449
1 Mr. Fry, there were some questions raised about the
2 sampling machine --
3 A. Uh-huh.
4 Q. -- out near the mine?
5 A. Yes.
6 Q. First, I would like you to look at a document
7 that's been marked as Exhibit 41 --
8 A. 41.
9 Q. -- which shows the sampling points, among
10 other things, that identifies sample points 10SW-7,
11 11SW-3, 14SW-4, 15SW-8. And using Exhibit 43 to refresh
12 your recollection, if you need to, all I would ask you to
13 do is explain first -- are you the person responsible for
14 selecting these four sampling points?
15 A. Selecting the sampling points, yes.
16 Q. Okay. First, with respect to sampling points
17 11SW-3 and 14SW-4, both of which I believe are on the
18 unnamed tributary, why did you select those sampling
19 points and start sampling as early as December 15, 1999?
20 A. In anticipation of, of the mining permit
21 application.
22 Q. And what did anticipating the mining permit
23 application have to do with sampling the unnamed
24 tributary?
450
1 A. It requires baseline data for, for the
2 surface water that, that will be receiving drainage from
3 the mine.
4 Q. Sampling points 10SW-7 and 15SW-8, I
5 understand, I think, to be on the Little Vermilion River.
6 And sampling began in August of 2000; is that right?
7 A. Right.
8 Q. Okay. Why did you start sampling there?
9 A. Well, normally they wouldn't be required for
10 the permit; but because there seemed to be a little more
11 controversy to this permit, I decided to go ahead and
12 pick some points on the Little Vermilion and take some
13 samples.
14 Q. Then if you look at Exhibit 40, there's a
15 reference there to IEPA sampling sites two, three, and
16 four. And if you would look at the map 43, some of those
17 are on the Little Vermilion, some are on the unnamed
18 tributary, right?
19 A. Right.
20 Q. Who picked those spots?
21 A. The Illinois EPA and the Illinois DNR.
22 Q. And when did they do that? Was that in
23 connection with the issuance of the permit?
24 A. Absolutely.
451
1 Q. That was information that you were just told
2 that that's where you would be sampling?
3 A. Right.
4 Q. There was a question raised about whether the
5 data gathered on February 12, 14, and 25, 2001, had been
6 reported to IEPA. What can you tell us about that?
7 A. Information in regards to the permit is
8 turned in as required by the permit.
9 Q. And do you know what the reporting
10 requirements are? The permit says, but just so we can
11 talk about it, when would you expect that those data
12 have to be turned in? The sample was on February 12th;
13 what's your understanding of when you have to report it?
14 A. I believe that that one's been reported. My
15 understanding of when it has to be reported is within 60
16 days of our having received the analysis.
17 Q. Okay. And you believe that the February 12
18 one has been reported?
19 A. I think so.
20 Q. What about the other two?
21 A. I'm not positive whether they have been
22 reported or not, but they will be reported as required.
23 MR. BLANTON: Those are all the questions I
24 have for this witness at this time.
452
1 HEARING OFFICER: Mr. Ettinger, do you want
2 to -- we had an off-the-record discussion, and I don't
3 know if Mr. Blanton was available for that. Did you hear
4 us talking about public comments?
5 MR. BLANTON: (Counsel shakes head.)
6 HEARING OFFICER: Mr. Ettinger is worried that
7 some of these people have to leave before it gets too late
8 in the day, and we are thinking of taking some public
9 comments now.
10 Is that correct, People? Anybody need to
11 leave before this witness is finished?
12 AUDIENCE MEMBER: When will it be finished?
13 HEARING OFFICER: Hey, if it were up to me,
14 ma'am --
15 AUDIENCE MEMBER: Five?
16 HEARING OFFICER: It's up to the attorneys and
17 how long they take to make their case.
18 MR. ETTINGER: I believe I'm going to be very
19 quick.
20 HEARING OFFICER: Mr. Sofat, do you have --
21 MR. SOFAT: No questions.
22 HEARING OFFICER: You're not going to have any
23 questions? So I would say in about fifteen, twenty
24 minutes, depending on cross and redirect.
453
1 (No response from audience members.)
2 HEARING OFFICER: Okay. We'll proceed then
3 with cross-examination.
4 CROSS-EXAMINATION
5 BY MR. ETTINGER:
6 Q. Mr. Fry, did you attend the public hearing
7 that was held on September 27th of last year?
8 A. Yes.
9 Q. Did you speak at that hearing?
10 A. I think that I was asked several questions --
11 Q. Is there --
12 A. -- so that I did speak, yes.
13 Q. Is there any reason that you couldn't have
14 presented all of this information that you're presenting
15 now at the public hearing?
16 A. What information are you referring to?
17 Q. Well, a lot of your information here
18 regarding more the topology of the site and the location
19 of other coal mines and the other facts about the site
20 and the company's plans that you presented at this
21 hearing. Is there any reason that that couldn't have
22 been presented then?
23 A. I suppose that some of that could have been
24 presented, yes.
454
1 Q. Thank you. Regarding the -- what's been
2 marked, I believe, as Exhibit 47 that I believe we
3 decided was part three of the mining permit
4 application -- yes -- on page -- it's page 7 of 20 on the
5 bottom, there is some water quality data, site-specific
6 regional surface water quality and site-specific surface
7 water quality data. Do you see that?
8 A. Yes.
9 Q. Who collected that data?
10 A. On page 7 of 20, the data that, that -- that
11 is there, I believe it tells that the -- oh, the
12 site-specific data?
13 Q. Yes. Who collected that? I'm actually
14 having a little trouble reading it because of the
15 copying, but --
16 A. Okay. I believe that Black Beauty collected
17 that data.
18 Q. And where was that data collected?
19 A. The data was collected at the -- at the -- at
20 the points shown on the table.
21 Q. Okay. And just to be clear on these numbers
22 -- there's various numbers here. Well, let's just look,
23 for instance, total manganese in the middle column. I
24 think it says 12SW-5. Do you see where I'm talking
455
1 about?
2 A. Yes, I do.
3 Q. It's got a .21, then -4.2. What does that
4 mean?
5 MR. BLANTON: For the record, it's .29.
6 BY MR. ETTINGER:
7 Q. I'm sorry. Well, I'm -- what does it say,
8 .29 - 4.2? Do you see where I'm looking?
9 A. That, that should be the range of values that
10 were collected over the baseline monitoring period.
11 Q. Okay. So, over that period, your lowest
12 value was .29, and your highest value was 4.2?
13 A. Correct.
14 Q. How many data points does that represent?
15 A. I'm going to guess and say six.
16 MR. ETTINGER: Thank you. No further
17 questions.
18 HEARING OFFICER: Mr. Sofat, did you have any
19 questions?
20 MR. SOFAT: No.
21 HEARING OFFICER: Mr. Blanton?
22 MR. BLANTON: No other questions.
23 HEARING OFFICER: Sir, you may step down.
24 Thank you for your time.
456
1 Mr. Blanton, any other witnesses for you?
2 MR. BLANTON: No. Black Beauty closes, rests.
3 HEARING OFFICER: Mr. Ettinger, do you have
4 any case in rebuttal?
5 MR. ETTINGER: No.
6 HEARING OFFICER: All right. We are moving
7 right along now. I think the time has come for public
8 comments. If there is anybody out there wishing to
9 provide a public comment to the Board, you would be more
10 than welcome to come up, and you'll be asked to state your
11 name and swear to tell the whole truth and nothing but the
12 truth, or affirm, and we will take your comments back to
13 the Board, they will be made part of the transcript --
14 yes, ma'am, why don't you come up -- and the Board will
15 consider them.
16 You should also know that you may be subject
17 to limited cross-examination by the parties.
18 MS. MARIAGE: I just have a statement I would
19 like to read.
20 HEARING OFFICER: Yes. You're more than
21 welcome to. First we want you to be sworn in.
22 (Ms. Mariage sworn.)
23 HEARING OFFICER: Please proceed, ma'am.
24 MS. MARIAGE: My name is Gloria Mariage. I'm
457
1 a member of the Prairie Rivers Network. And my statement
2 I'd like to read to you is, I enjoy having the Little
3 Vermilion River as a neighbor, living less than a quarter
4 mile from my home. My husband and I and our children and
5 grandchildren canoe, fish and release, go boating, and
6 looking and watching the wildlife on the river. We have
7 tried to teach our grandchildren, as we did our children,
8 to protect and help clean the Little Vermilion River by
9 picking up garbage from the river and its banks and not to
10 destroy nature so others can see and enjoy the river and
11 all the wildlife and beauty that it beholds.
12 Thank you.
13 HEARING OFFICER: Thank you very much, ma'am.
14 Don't go anywhere. Does anyone have any questions,
15 starting with Mr. Ettinger?
16 MR. ETTINGER: Are you a member of Prairie
17 Rivers?
18 MS. MARIAGE: Yes, I am.
19 MR. ETTINGER: No further questions.
20 HEARING OFFICER: Mr. Sofat?
21 MR. SOFAT: Agency has no questions.
22 HEARING OFFICER: Mr. Blanton?
23 MR. BLANTON: No questions.
24 HEARING OFFICER: Sir, would you like to
458
1 provide a public comment?
2 MR. ELLIS: Yes.
3 HEARING OFFICER: Why don't you come on up and
4 stand next to the flags. You can sit if you're more
5 comfortable.
6 (Mr. Ellis affirmed.)
7 HEARING OFFICER: And your name, sir?
8 MR. ELLIS: Bill Ellis.
9 HEARING OFFICER: Could you spell that,
10 please? Just the last part.
11 MR. ELLIS: E-l-l-i-s.
12 HEARING OFFICER: Thank you.
13 MR. ELLIS: I'm also a member of Prairie
14 Rivers. A few years ago, I was called for jury duty in
15 the courthouse here in Danville on a trial that I thought
16 was a rather serious case, attempted murder. When the
17 judge addressed the jury, he told us to use our life
18 experiences in judging credibility of witnesses and their
19 testimony.
20 My life experience tells me that the location
21 and operation of this coal mine will eventually cause
22 pollution of the Little Vermilion River. I would not
23 expect much pollution to occur the first day of mining,
24 but I believe -- I believe that eventually that river will
459
1 be in some -- to some extent polluted.
2 Now, I have personally observed some discharge
3 that I believe to be more or less continuous from outlet
4 003 for at least two months, March and April, and I
5 have -- we also observed that large discharge in February.
6 It is interesting to me that most of us
7 concerned about pollution from this mine do not stand to
8 gain financially in any way, no matter the outcome of this
9 hearing.
10 One other comment I'd like to make, I heard
11 the Vermilion County Soil and Water Conservation
12 mentioned. At the -- at the hearing, I believe it was
13 on -- in September 27th, they expressed concern about
14 siting of this mine on the Little Vermilion River. That's
15 all the comments I have.
16 HEARING OFFICER: Thank you sir.
17 Mr. Ettinger, do you have any questions for
18 this witness?
19 MR. ETTINGER: No.
20 HEARING OFFICER: Mr. Sofat?
21 MR. SOFAT: No.
22 HEARING OFFICER: Mr. Blanton?
23 MR. BLANTON: No questions.
24 HEARING OFFICER: Thank you, sir. Thank you
460
1 for your public comment. Does anyone else wish to provide
2 public comment here today?
3 MS. ELLIS: I testified. May I make a
4 statement?
5 HEARING OFFICER: I think you can. Let's see
6 if we have an objection from any of the respondents.
7 Mr. Sofat, Mr. Blanton?
8 We'll allow you to come and provide your
9 public comment.
10 MS. ELLIS: Okay.
11 HEARING OFFICER: Everybody should be aware,
12 too, that we are going to allow a written public comment
13 period as well which will be addressed at the close of the
14 hearing here. We'll set a date by which you have to file
15 anything you want to file with the Board up in Chicago.
16 (Witness affirmed.)
17 HEARING OFFICER: Yes. Please proceed. Your
18 name again, even though --
19 MS. ELLIS: My name is Rosa Ellis; I'm known
20 as Rose. When I started out on this journey fifteen
21 months ago with this coal mine, when we found out it was
22 where it was going to be placed, this land there means a
23 great deal to our families. And the river, as I have told
24 you, we have used the 50 years that I've lived there. And
461
1 it's inconceivable to me to think that people can stand
2 and say that this mine cannot pollute the river. We all
3 pollute in some way every day that we breathe, every time
4 we breathe.
5 And this is what has concerned me, that we
6 have been told that there will be no pollution, there will
7 be no change in our area. None of you are living there.
8 We've had a great deal of change since January. We have
9 noise that we never had before and traffic that we've
10 never had before. But we are not against progress; we all
11 know that we want electricity, but electricity is not one
12 of the three things that we need to sustain our lives here
13 on this earth. And I believe that there's other ways to
14 get electricity, but I'll not go into that.
15 But what I am concerned about from this
16 hearing, I have noticed that the Illinois EPA and that
17 Black Beauty Coal have been arm in arm. When this appeal
18 was applied, it was applied to the Illinois EPA, not to
19 Black Beauty. But I've sat here two days and heard most
20 of the comments from Black Beauty, not from Illinois EPA.
21 Now, we pay the Illinois EPA. They are supposed to be
22 there to protect our resources, our way of life, and I
23 just don't believe that they're doing it. I think they're
24 there for heavy industry. That's what I've gotten out of
462
1 this hearing.
2 And also, I've -- as you all know, we farm.
3 My husband farmed over 50 years. And we have always been
4 conservationists. We did not use exorbitant amounts of
5 chemicals of any kind. We used to mole bore them. I
6 heard an argument this morning over allowing research done
7 in 1984 about the pollution being from the mines -- from
8 the farms, excuse me, not the mines. Do any of you take
9 in consideration since 1984 that I will say more than
10 90 percent of farming now is done as no till or minimum
11 till? The mole bore plow has gone by the wayside. We
12 just don't use it. And that was where most of your runoff
13 from the fields -- the, the farm fields came from was the
14 mole bore (phonetic) plow. And I will not deny that there
15 has been soil erosion from the fields because back when we
16 used the plow, we used it in the spring, not in the fall,
17 because in the early spring's when you get your runoff.
18 And we would plow after the ground had dried. So we did
19 not have that runoff. Farmers want to conserve their
20 topsoil. You only get topsoil in this world once. It
21 doesn't rebuild -- only after generations after
22 generations and generations. It takes a long time to
23 build an inch of topsoil. And so that has been one thing
24 that I've taken offense to here today, about the
463
1 agriculture.
2 I was asked, Mr. Blanton, by you in my
3 deposition if we had used these chemicals, and I told you
4 we had and how we had used it. And you asked me at the
5 time if I knew what was in our water from our field tile
6 where it flows off to the stream. Well, we went out the
7 other evening and got a bottle, and here it is
8 (indicating). This is from our field tile. But we also,
9 Saturday, went to an unnamed mine, and this is what's
10 coming off of a mine that's not been worked (indicating).
11 And would you rather have this water go in
12 your river, or would you rather have this?
13 HEARING OFFICER: Let's let the record reflect
14 that Ms. Ellis is holding up a bottle of clear water and a
15 bottle of somewhat murky water and alleging that the murky
16 water has come from the unworked mine.
17 MS. ELLIS: That's it. Nothing has been put
18 in that water. It settles to the bottom.
19 HEARING OFFICER: Anything further, Ms. Ellis?
20 MS. ELLILS: That is it.
21 HEARING OFFICER: I have a question for you.
22 MS. ELLIS: Okay.
23 HEARING OFFICER: What are the three things in
24 this world you need to live?
464
1 MS. ELLIS: You need food.
2 HEARING OFFICER: I got that one.
3 MS. ELLIS: You need water, and you need
4 shelter.
5 HEARING OFFICER: Oh, all right. I was
6 curious. I was going with air, but --
7 MS. ELLIS: Well, you need air. That is God's
8 given to us. God has given us the water, he has given us
9 the air. We take those things for granted. We're never
10 going to get a replenishment of clean water. And
11 eventually, your next big fight in this country is going
12 to be water.
13 HEARING OFFICER: Well, thank you for your
14 comment. Let's see if anybody else has questions for you
15 starting with Mr. Ettinger?
16 MR. ETTINGER: No.
17 HEARING OFFICER: Mr. Sofat?
18 MR. SOFAT: No.
19 HEARING OFFICER: Mr. Blanton?
20 MR. BLANTON: No.
21 HEARING OFFICER: Ma'am, thank you very much.
22 MS. ELLIS: Thank you.
23 HEARING OFFICER: Anybody else wishing to
24 provide public comment to this point?
465
1 Yes, ma'am, come on up.
2 (Witness sworn.)
3 HEARING OFFICER: Would you state your name,
4 please, and spell your last name?
5 MS. CRUM: Karen Crum, C-r-u-m.
6 HEARING OFFICER: Thank you, ma'am. You can
7 proceed with your statement.
8 MS. CRUM: All right. It's a hard act to
9 follow after Rose.
10 HEARING OFFICER: I know.
11 MS. CRUM: But I just wanted to say I haven't
12 been around here for the last 40 years; I just got back.
13 Been gone, been in a big city, and have really been busy.
14 It hasn't been till I came back that I started becoming
15 more aware of the environment, and I now must say I'm
16 taking time to smell the roses. I'm much more aware. And
17 I'm proud to tell people that I live very close to the
18 Little Vermilion River which is one of the top ten
19 cleanest rivers in Illinois, and that is important for me.
20 Today's hearing, I came expecting EPA to
21 explain so I could better understand their decision for
22 the permit, and all I basically have heard is Mr. Blanton
23 defending Black Beauty's permit application. And it is
24 very, very confusing to me. I'm really a little at a loss
466
1 for words as to why I didn't hear more from the IEPA and
2 less from him. That's all.
3 HEARING OFFICER: Thank you, ma'am. Don't go
4 anywhere yet, though. We may have questions for you.
5 Mr. Ettinger?
6 MR. ETTINGER: Are you a Prairie Rivers
7 member?
8 MS. CRUM: Yes, I am.
9 HEARING OFFICER: Mr. Sofat?
10 MR. SOFAT: No questions.
11 HEARING OFFICER: Mr. Blanton?
12 MR. BLANTON: No questions.
13 HEARING OFFICER: Thank you very much, ma'am.
14 MS. CRUM: You're welcome.
15 HEARING OFFICER: Anybody else? Okay. I see
16 nobody raising their hand to provide public comment. This
17 is, I think, the last call on public comment then. Thank
18 you all very much. The Board does appreciate and is
19 always very interested in receiving comments from the
20 members of the public in the county that's affected.
21 At this point in time, I want to go off the
22 record and talk about briefs and closings, and then we'll
23 go back on, set it up, and deal with it that way. Let's
24 go off.
467
1 (A discussion was held off the record, and a
2 recess was taken.)
3 HEARING OFFICER: We are back on the record
4 after a recess to discuss, among other things, briefing
5 schedules and closing arguments and whatnot. We have set
6 up a schedule, a post hearing schedule that is as follows:
7 We anticipate the transcript will be done by May 8th,
8 correct, Jennifer?
9 COURT REPORTER: Yes.
10 HEARING OFFICER: We have public comments will
11 be due on or before May 14th at the Board's offices. I've
12 handed out the address to one of you, I know. If anybody
13 needs it, feel free to call me at the Board's offices and
14 ask for it. My phone number -- if anyone wants to write
15 it down, they would be more than welcome. I'm there from
16 eight to four every day. My number is (312) 814-3473, and
17 that will get you directly to me. If I'm not there, you
18 can leave a message or you can punch zero and you will be
19 transferred out to the receptionist.
20 Public comments will be due on May 14th. We
21 have the petitioner's brief will be due on May 18th. The
22 respondent's brief as well as the amicus brief will be due
23 on May 25th. And on May 31st, the reply brief will be
24 due. Once again, the mailbox rule does not apply to any
468
1 of these post hearing filings. They have to be in the
2 Board's offices and served on the other parties by the
3 date that I -- dates that I've set out.
4 You guys don't have to serve your public
5 comments on anyone. You just send it in to the Board's
6 offices.
7 MR. BLANTON: How do we get those?
8 HEARING OFFICER: The public comments? That's
9 a good question. Generally, the assistant clerk will send
10 copies to the parties. However, in light of this tight
11 time frame, I would -- I'm sure she will do that. And I
12 would call me on May 14th, maybe we'll set up a status
13 conference before we leave here to address that issue
14 around the May 14th time line.
15 We have closing arguments we can make if we
16 want. Mr. Ettinger, are you going to be doing a closing
17 argument?
18 MR. ETTINGER: The -- some members of the
19 public have requested that I do so. I guess I will, a
20 brief closing argument. Hopefully that won't keep us here
21 long.
22 HEARING OFFICER: Take as much time as you
23 feel is necessary.
24 MR. ETTINGER: No, I just wanted to make a few
469
1 points. This is an important proceeding in a number of
2 senses, and one of them is that I believe this is the
3 first third-party appeal of an NPDES permit that's
4 actually gone to hearing, and it will be heard by the
5 Board; so some of the rules and procedures that we're
6 setting up here will be important for a lot of other
7 proceedings that are to come.
8 And for that reason, I think we need to focus
9 a lot more on maybe procedural issues than we have in the
10 course of this argument. It's been difficult for all of
11 us because the rules simply haven't been established yet
12 on some of these proceedings because there just have not
13 been prior proceedings like this. I think what we've
14 seen, though, is sort of two visions of how the permitting
15 process is supposed to work here. One, we believe, was
16 mandated by the Clean Water Act and, I think, the
17 practical requirements of common sense and what the public
18 can be expected to do in these proceedings in order to
19 participate.
20 And then there's an alternate vision which has
21 been put forward to some degree by the agency, although
22 I'm not sure they, they believe it -- in it as a matter of
23 policy, although I think they believe it was acceptable in
24 this matter.
470
1 And another vision that was advanced by the
2 coal company, or rather, the version that was advanced by
3 the coal company. We believe that the public has to be
4 able to rely on the agency to do its homework here. We
5 have to be able to see the documents collected, the
6 studies done, the evidence in the public hearing and part
7 of the public process. In fact, there's a, a circuit
8 court decision that's cited under the Clean Water Act
9 which refers to the public -- the NPDES writing process as
10 to be like in a fish bowl-like atmosphere, everything is
11 supposed to be out in public. And that's because we have
12 to rely on the agency, as members of the public, because
13 we are not in a position as neighbors, as people who live
14 in this area, to go out and hire an expert. We count on
15 the State to do that. And any of the facts that the
16 agency or, rather, that the permittee wants brought to the
17 attention of the agency, they should do that, but they
18 should do it up-front so that the agency can consider that
19 data as part of the public process. Because while we have
20 to rely on the agency, we don't just have to rely on the
21 agency because the Clean Water Act and the public
22 participation requirements require responses to public
23 comments so that we can see answers in the public record
24 as to our concerns.
471
1 So, what we then have is a requirement, we
2 believe, under the Clean Water Act and certainly the way
3 the Board should do this now unless the Board wants to
4 hear many, many appeals of getting all of the evidence in
5 the public record. That seems to be what the Illinois
6 statute requires as well as Clean Water Act. What we have
7 instead and what was done here is the public record and
8 the public hearings were held almost as like a scoping
9 hearing in which we raised concerns which were then worked
10 out in the dark of night between the company in documents
11 that we didn't see until after the records were closed and
12 documents were filed after the close of the public
13 hearing.
14 In e-mails between U.S. EPA and IEPA that we
15 didn't see until after the close of the public record, and
16 now, of course, today we've seen another extension of that
17 principle in which the company now wants to justify this
18 permit and offer all sorts of information six months after
19 or whatever it is -- five months after the close of the
20 public hearing record. What that does, of course, is
21 totally skew the process. We can't go through -- the
22 public can't participate in a process in which they don't
23 get to see the information up-front. They have to be able
24 to rely on the expertise of the agency in the public
472
1 process. And we have a lot of faith in the agency; we
2 know they have a lot of smart people who are capable of
3 reading the studies and looking at many of the documents
4 that have been referred to or alluded to today. And
5 that's -- because they're so smart and because they are
6 capable, they should be able to discuss those documents in
7 the public responsiveness survey which is designed by the
8 agency to give the agency's answers to the concerns that
9 were raised by the public. And they pretty much have to
10 live or die on the basis of what's on the record, and
11 that's what the statute indicates.
12 It was argued that we presented evidence
13 outside of the record, and that's really true only in the
14 sense that we attempted to elucidate some of the things
15 that the statute does require that persons having
16 third-party appeals demonstrate. And I think if you look
17 at the evidence that we actually put on, almost all of
18 that falls into what is addressing issues in the
19 third-party appeal statute.
20 We also, because there was a public hearing,
21 sought to elucidate and explain our objections to the
22 proceeding a little more, but they really basically are in
23 the nature of explaining our arguments and our concerns
24 and specifically go to what the specific problems were and
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1 the issues that were raised by the failure to address
2 these problems that we raised during the public hearing.
3 In fact, the statute's quite clear that if we don't raise
4 issues, we can't bring them up later; and furthermore, we
5 believe strongly that means also that nobody else can come
6 in with a new rationale as to why this is a great permit
7 after the close of the public hearing.
8 We have explained what the problems were with
9 the permit as written. The problem with the permit as
10 written is it left all sorts of very key provisions wide
11 open. It simply did not spell out the most critical
12 provision which was how the dilution was going to be
13 monitored here. The whole theory of this permit and how
14 it's going to protect state water quality standards is
15 that we are going to assure that there's always enough
16 flow in the unnamed tributary so that there are not
17 violations of state water quality standards in the unnamed
18 tributary. What the permit says, though, however, is it
19 doesn't spell out how that's going to be monitored or
20 described in the permit. It says, Permittee, you go out
21 and work it out; and in 180 days, you come back and tell
22 us how we're going to do it.
23 Well, how am I going to enforce that as a
24 member of the public? Can I bring a lawsuit based on what
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1 they told the agency 180 days after the permit was
2 written, under the Clean Water Act? Is any of that
3 enforceable? Did I have a chance to comment on their
4 compliance plan when it wasn't developed until 180 days
5 after the permit was issued?
6 So, what we have here is a situation which
7 fundamentally denied the public a right to participate --
8 I'm not going to go through all the other things. We've
9 heard quite enough today. But what we have here is a
10 whole process which fundamentally cut the public out of
11 the process in favor of letting the public -- it was
12 great. The public was allowed to raise concerns in the
13 public hearing that was held in September 27th and in the
14 prior letters and in the post comment hearing comments;
15 and then deals were cut, patches were made to try and
16 address those concerns. We never got to see them. We
17 never got to comment on them. Some of these things might
18 well have been worked out if they had been presented
19 beforehand and the public had had an opportunity to
20 understand them.
21 Some of the charts and beautiful maps that we
22 saw today with the circles and arrows and things, we would
23 have really liked to have seen those at the public
24 hearing. Those would have been very good. And if Mr. Fry
475
1 or someone else had presented that information, that would
2 have been very interesting, but it wasn't presented at the
3 time. What we were asked to buy with this permit was a
4 pig in a poke. That was what we were given in the permit
5 in terms of what we were asked to buy with the public
6 hearing.
7 And then, on a couple of key terms, the permit
8 basically says, you go to -- you come up with a plan after
9 the permit's issued, and then we, IEPA, and the permittee
10 in the dark of night will either approve or disapprove
11 what you came out with. This is the opposite of what the
12 Clean Water Act requires and what state law requires.
13 Thank you.
14 HEARING OFFICER: Thank you, Mr. Ettinger.
15 Mr. Sofat, do you have anything --
16 MR. SOFAT: Yes.
17 HEARING OFFICER: -- in terms of closing
18 argument? I take it, Mr. Ettinger, you're not waiving the
19 filing of your post hearing brief.
20 MR. ETTINGER: No. Emphatically not.
21 MR. SOFAT: The agency would like to thank all
22 the participants in this hearing and especially the
23 Pollution Control Board. The agency believes that Toby
24 Frever's testimony yesterday, the record that the agency
476
1 filed with the Board, as well as the record that was
2 developed during this hearing clearly shows that we
3 followed the provisions of the act as well as the
4 applicable regulations.
5 We strongly disagree with the petitioner's
6 interpretation of public participation, requirements of
7 the Clean Water Act. They promote a resource-intensive
8 approach, and we believe the purpose of a public hearing
9 is to explore if there is additional information that the
10 agency needs to consider prior to issuing a permit or
11 there is a need to modify the permit. We believe that
12 based on the comments that we received during this public
13 hearing, we considered all that information, and we do
14 believe that we are competent and we are smart enough to
15 make decisions without asking for further input on those
16 issues. And that is how this permit was issued.
17 The agency will make further, more
18 comprehensive arguments in their post hearing brief, and
19 that's all I have to say. Thank you.
20 HEARING OFFICER: Thank you, sir.
21 Mr. Blanton, do you have any closing argument?
22 MR. BLANTON: Yeah, I have a couple brief
23 things. I will defer to the agency about the process and
24 what the regulations provide and what rights the public
477
1 have in this permitting process. My understanding of
2 Illinois law on this point is that Mr. Ettinger's wishes
3 and Prairie Rivers' wishes for what rights the public have
4 in this process are not anything but wishes. That's not
5 the way the regulations are written.
6 And I believe Mr. Sofat is correct that the
7 agency scrupulously followed all of the requirements of
8 Illinois law in allowing participation. I think there is
9 another principle involved here that's a very serious one
10 that we do intend to raise with the agency, and that is
11 that permittees and applicants in the regulated community
12 also have rights, and among the rights that we have is the
13 right of the state government to take neutral positions
14 with professional judgments that are involved in this
15 case.
16 We have serious concerns about the process,
17 too, that underlie the attacks on this permit by Prairie
18 Rivers. This is a situation where the petitioner has a
19 member basically taking the -- doing the investigation and
20 writing the position paper and comments of a state agency
21 to a sister state agency. We have people in state
22 agencies who are being asked for advice and consulting
23 with Petitioner and people attacking the permit on issues
24 that we, frankly, believe are turf wars within the agency
478
1 that we are victimized by in the final terms of the
2 permit. And there are other things that concern us about
3 the process.
4 I think the public, if you look at the public
5 record, yeah, there's -- a huge amount of it is public
6 participation, the public hearing, the public comments.
7 The fact that the public has concerns does not mean that
8 they are right or that they have a scientific basis to
9 attack a reasonable evaluation of what this discharge is.
10 We are not talking in this case about something brand-new
11 under any circumstances whatsoever. What coal mines are,
12 what effects that they have, what regulated discharges
13 after material has been held in sediment basins is long
14 established, well understood technology.
15 The questions about endangered species are
16 fair questions to ask, but I believe that what the agency
17 did in this case when it consulted with the state agency
18 that had raised the concerns in the first instance,
19 listened to EPA's proposed way of dealing with those
20 concerns, and concurred in what was decided is reasonable,
21 is supportable under the law and the way the process is
22 supposed to work.
23 At the end of the day, this permit imposes
24 requirements on Black Beauty that are far beyond what we
479
1 believe are justified by Illinois law because we believe
2 when we checked the box in section three, our operating
3 permit, we were entitled to have the whole issue of water
4 quality standards under Subtitle C off the table, under
5 Illinois law. We will deal with U.S. EPA, but if the
6 agency had followed the Illinois regulations, we would
7 have had permit limits established, technology based under
8 Subtitle D. That's what we believe the law allowed the
9 agency to put into our permit. We have accepted
10 conditions, and we have not appealed them. But the fact
11 of the matter is we have requirements that are imposed on
12 us in response to the concerns voiced by the public that
13 more than adequately address concerns about water quality
14 and the impacts of the quality of the water on the biota
15 there. When any reasonable evaluation is made, frankly, I
16 don't think it is possible to satisfy the concerns of many
17 of the people who have commented. That's fine. They're
18 entitled to stay worried and concerned as long as they
19 have. That's their right. But it is not the duty of this
20 agency in dealing fairly with a regulated community under
21 rules and regulations that have been established over
22 many, many years, with all of the procedural safeguards,
23 to say that just because someone is worried and just
24 because someone says, Well, I'm not satisfied, that that
480
1 is a lawful basis to deny a permit or to upset a permit
2 term.
3 The professionals in this field from U.S. EPA
4 who have certainly voiced their concerns loud and clear,
5 the people at the endangered -- who are responsible for
6 protecting endangered species in this state have expressed
7 their concerns loud and clear, as well as the mining
8 folks, as well as the long-time professionals in this
9 agency have all concurred that their professional judgment
10 is that the data show that the concerns are not warranted.
11 And you can't deny us a permit because the neighbors are
12 just concerned about what might happen. You have to look
13 at the evidence in the record, and it more than adequately
14 sustains this permit.
15 HEARING OFFICER: Thank you, Mr. Blanton.
16 Mr. Hubbard, do you have something you want to add in
17 terms of closing argument?
18 MR. HUBBARD: Just a few remarks, please. I'm
19 in a unique situation here in that these objectors,
20 members of Prairie Rivers, at least in the past have been
21 clients, some of them; certainly they're neighbors;
22 they're people that live in the same community that I do,
23 so I don't want to get in a position of stepping on their
24 rights.
481
1 On the other hand, I've been retained to
2 represent the rights of Vermilion Coal that owns over
3 10,000 acres of coal in this location. The essence of my
4 remarks is that I think the system has worked. I think
5 it's probably got some improvements that could occur, but
6 the people have been heard, the process has been weighed,
7 the balances have taken place, the Environmental
8 Protection Agency has done its job.
9 Toby has testified as to all of the balancing
10 process and all of the things that they've done to try to
11 comply with the law. The law's been complied with. The
12 permit's been issued. The burden of proof on the third
13 party is to prove that the permit should not have been
14 issued. And all we've heard in these two days, other than
15 evidence proving why the permit should have been issued,
16 are inquiries and questions and suggestions. We have
17 heard nothing as to why the permit should not have been
18 issued.
19 So, therefore, we feel it has been properly
20 issued, and we would urge the Board to concur in the
21 issuance of that permit and not set it aside. Thank you.
22 HEARING OFFICER: Thank you, Mr. Hubbard.
23 Mr. Ettinger, do you have any rebuttal argument?
24 MR. ETTINGER: Only to say that anything I
482
1 didn't say in this hearing or offer in this hearing I may
2 still offer based on what's in the public record, and
3 that, in fact, is what our arguments will be; those will
4 be the documents that we will show and meet the burden
5 that Mr. Hubbard referred to.
6 HEARING OFFICER: Thank you very much. I have
7 a credibility statement I am required to make by law.
8 Based on my legal judgment and experience, I did not find
9 any credibility issues with the witnesses who testified at
10 this hearing.
11 That being said, I think we are finally
12 finished with the hearing. Thank you all very much for
13 your participation and especially for those members of the
14 public who had the constitution to sit through two days.
15 Thank you all very much.
16 (Proceedings concluded at 4:56 p.m.)
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2 STATE OF ILLINOIS :
: SS
3 COUNTY OF PEORIA :
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6 I, JENNIFER E. JOHNSON, Certified Shorthand
Reporter, Registered Merit Reporter, do hereby certify
7 that the foregoing transcript of proceedings is true and
correct to the best of my knowledge and belief;
8
That I am not related to any of the parties
9 hereto by blood or marriage, nor shall I benefit by the
outcome of this matter financially or otherwise.
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14 _______________________________
JENNIFER E. JOHNSON
15 Certified Shorthand Reporter
Registered Merit Reporter
16 (License #084-003039)
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