1 ILLINOIS POLLUTION CONTROL BOARD
    2
    3
    PEOPLE OF THE STATE OF ILLINOIS, )
    4 ex re. JAMES E. RYAN, Attorney General )
    of the State of Illinois, )
    5 )
    Complainant, )
    6 )
    vs. ) PCB No. 98-148
    7 ) (Enforcement)
    DOREN POLAND, LLOYD YOHO, )
    8 and BRIGGS INDUSTRIES, INC., )
    a/k/a BRIGGS PLUMBING PRODUCTS, INC., )
    9 )
    Respondents. )
    10
    11
    12
    13
    14
    15 The following is the transcript of a hearing
    16 held in the above-entitled matter, taken
    17 stenographically by Gale G. Everhart, CSR-RPR, a notary
    18 public within and for the County of Peoria and State of
    19 Illinois, before Bradley P. Halloran, Hearing Officer,
    20 at 200 South Cherry Street, Galesburg, Illinois, on the
    21 10th day of December, A.D. 2002, commencing at
    22 10:03 a.m.
    23
    24
     
     
    L. A. REPORTING (312) 419-9292

     
     
     

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    1 PRESENT:
    2 HEARING TAKEN BEFORE:
    ILLINOIS POLLUTION CONTROL BOARD
    3 200 South Cherry Street
    Galesburg, Illinois 61401
    4 (309) 343-3121
    BY: MR. BRADLEY P. HALLORAN
    5
    6 APPEARANCES:
    7 STATE OF ILLINOIS, OFFICE OF THE ATTORNEY GENERAL
    BY: THOMAS DAVIS, ESQUIRE
    8 Attorney at Law
    500 South Second Street
    9 Springfield, Illinois 62706
    (217) 782-7968
    10 On Behalf of the Complainant.
    11 MOHAN, ALEWELT, PRILLAMAN & ADAMI
    BY: JOEL A. BENOIT, ESQUIRE
    12 Attorney at Law
    One North Old Capitol Plaza, Suite 325
    13 Springfield, Illinois 62701-1323
    (217) 528-2517
    14 On Behalf of the Respondent
    Briggs Industries, Inc.
    15
    DOREN E. POLAND
    16 506 East Latimer Street
    Abingdon, Illinois 61410
    17 (Appeared PRO SE)
    18 LLOYD F. YOHO
    710 North Main Street
    19 Abingdon, Illinois 61410
    (Appeared PRO SE)
    20
    21 ALSO PRESENT:
    22 Joanne Yoho
    Loren West
    23 Tom Nelson
    24
     
     
    L. A. REPORTING (312) 419-9292

     
     
     

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    1 I N D E X Page
    2
    3 GREETING BY HEARING OFFICER . . . . . . . . . . . . . 4
    4
    OPENING STATEMENTS:
    5
    BY MR. DAVIS. . . . . . . . . . . . . . . . . . 8
    6 BY MR. BENOIT . . . . . . . . . . . . . . . . . 19
    7 HEARING OFFICER EXHIBITS ADMITTED INTO EVIDENCE:
    8 *EXHIBIT A. . . . . . . . . . . . . . . . . . . 18
    *EXHIBIT B. . . . . . . . . . . . . . . . . . . 23
    9 *EXHIBIT C. . . . . . . . . . . . . . . . . . . 23
    10 COMPLAINANT'S EXHIBITS ADMITTED INTO EVIDENCE:
    11 *EXHIBIT A. . . . . . . . . . . . . . . . . . . 19
    *SUPPLEMENT TO EXHIBIT A. . . . . . . . . . . . 19
    12
    13 RESPONDENT'S EXHIBITS ADMITTED INTO EVIDENCE:
    14 *EXHIBIT A. . . . . . . . . . . . . . . . . . . 21
    *EXHIBIT B. . . . . . . . . . . . . . . . . . . 22
    15 *EXHIBIT C. . . . . . . . . . . . . . . . . . . 22
    16
    *Exhibits were retained by the Hearing Officer.
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    L. A. REPORTING (312) 419-9292

     
     
     

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    1 HEARING OFFICER HALLORAN: Good morning, everyone.
    2 My name is Bradley Halloran. I'm a hearing officer with
    3 the Illinois Pollution Control Board. My predecessor,
    4 Steven Langhoff, who had the hearing last time has
    5 apparently left for greener pastures so it was
    6 reassigned to me.
    7 This matter is PCB 98-148 entitled People
    8 versus Doren Poland, Lloyd Yoho and Briggs Industries,
    9 Inc., a/k/a Briggs Plumbing Products, Incorporated,
    10 Respondents, and Briggs Industries, Incorporated, Third
    11 Party Complainant versus Loren West. And is it Abingdon
    12 Salvage Company, Inc., Third Party Respondents? The
    13 allegations contained in the third party complaint will
    14 not be the subject matter of today's hearing. We will
    15 schedule that for a later date if need be.
    16 I want to note for the record there are no
    17 members of the public here. There is a member of the
    18 press. It appears to be all interested parties here
    19 today. However, if there were members of the public,
    20 they would be allowed to testify subject to
    21 cross-examination.
    22 We are going to run this hearing pursuant to
    23 section 103.212 and section 101 subpart F under the
    24 Board's general provisions. I note that this hearing is
     
     
    L. A. REPORTING (312) 419-9292

     
     
     

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    1 intended to develop a record for review by the Illinois
    2 Pollution Control Board. I will not be making the
    3 ultimate decision in the case. That decision will be
    4 left to the members of the Board. They will review the
    5 transcript of this proceeding and the remainder of the
    6 record and render a decision in this matter. My job is
    7 to ensure an orderly hearing, clear record and rule
    8 on any evidentiary matters that may arise.
    9 After the hearing, the party will be
    10 given -- the parties will be given an opportunity to
    11 submit posthearing briefs if they choose. These, too,
    12 will be considered by the board. I note that the board
    13 found in favor of the complainant in its order of
    14 September 6th, 2001, and ordered parties back to hearing
    15 on the issues of technical relief, penalties, cost and
    16 attorney fees. To that end, the parties are only to
    17 present testimony and evidence that are relevant to the
    18 factors and causes that are set forth in section 33(c)
    19 and 42(h) of the act. This includes proposing a remedy
    20 for violation, whether to impose a civil penalty in
    21 supporting its position with facts and arguments that
    22 address any and all of section 33(c) factors and
    23 proposing a civil penalty including a specific dollar
    24 amount and supporting its position with facts and
     
     
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    1 arguments that address any and all of section 42(h)
    2 factors.
    3 With that said, Mr. Davis, would you like to
    4 introduce yourself, please.
    5 MR. DAVIS: Thank you. My name is Thomas Davis.
    6 I'm an assistant attorney general. I'm also the chief
    7 of the Environmental Bureau. And I am appearing here on
    8 behalf of the People of the State of Illinois.
    9 HEARING OFFICER HALLORAN: Thank you, Mr. Davis.
    10 Mr. Benoit.
    11 MR. BENOIT: Joel Benoit, and I represent
    12 Respondent Briggs Industries.
    13 HEARING OFFICER HALLORAN: Thank you, sir.
    14 Mr. Poland.
    15 MR. POLAND: Yes, sir?
    16 HEARING OFFICER HALLORAN: Would you like to
    17 introduce yourself, please?
    18 MR. POLAND: Doren Poland of Abingdon, Illinois.
    19 Retired six years ago.
    20 HEARING OFFICER HALLORAN: Thank you.
    21 Mr. Yoho.
    22 MR. YOHO: Lloyd Yoho. I live in Abingdon,
    23 Illinois, and I'm one of the owners and operators of
    24 Abingdon Salvage Company.
     
     
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    1 HEARING OFFICER HALLORAN: Mr. West.
    2 MR. WEST: Loren West, co-owner of Abingdon
    3 Salvage, past co-owner.
    4 HEARING OFFICER HALLORAN: A bit of housekeeping.
    5 On December 5th, Mr. Davis and Mr. Benoit -- actually I
    6 believe it was -- well, Mr. Davis and Mr. Benoit,
    7 somehow I got a fax of a stipulation. It's a section
    8 101.626(d) stipulation and a waiver of the right to
    9 cross-examine. And the reason this originated is
    10 because Mr. Davis and Mr. Benoit are going
    11 to -- actually, Mr. Davis has already filed written
    12 testimony, and Mr. Benoit, I understand, is going to do
    13 that this morning. And subject to section 101.626(d)
    14 in -- pertinent part, written testimony may be
    15 introduced by a party only if the persons whose written
    16 testimony is introduced are available for
    17 cross-examination at the hearing.
    18 With that said, the parties signed a
    19 stipulation under waiver of right to cross-examination.
    20 It was signed by Mr. Yoho, Mr. Poland, Mr. Davis and
    21 Mr. Benoit. That was a fax copy. Today Mr. Benoit
    22 brought in another stipulation, the same stipulation and
    23 we had Mr. Poland and Mr. Yoho and Mr. Davis and
    24 Mr. Benoit sign it again as the original. With that
     
     
    L. A. REPORTING (312) 419-9292

     
     
     

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    1 said, I will accept this stipulation and proceed from
    2 there.
    3 Mr. Davis, would you like to give an opening
    4 statement, or do we need to talk about anything else
    5 before we proceed?
    6 MR. DAVIS: No. I'm prepared to begin.
    7 Thank you, Mr. Halloran.
    8 The Board's September 6th, 2001, interim
    9 opinion and order correctly found Briggs Industries,
    10 Inc., to be liable as an operator for certain waste
    11 disposal violations. The Board has directed the parties
    12 back to hearing on the issues of technical relief and
    13 civil penalty. The evidence presented during the
    14 hearing over two years ago, in the view of the Board,
    15 suggested that the materials disposed of at the
    16 unpermitted site was inert waste.
    17 The People respectfully disagree with this
    18 view because the record contains no proof that the
    19 wastes were inert. The People also disagree with the
    20 Board's conclusion that there was insufficient evidence
    21 in the record to determine whether the wastes posed such
    22 a risk to the environment as to require removal.
    23 The complainant has already shown that the
    24 industrial processed wastes generated by Briggs are not
     
     
    L. A. REPORTING (312) 419-9292

     
     
     

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    1 inert. We have done this essentially by proving a
    2 negative. One question arises, does the Board expect
    3 Briggs to somehow attempt to prove that its wastes are
    4 inert in order to justify the so-called remedy Briggs
    5 has suggested in its briefs? This will likely not occur
    6 during this hearing. In fact, the parties have
    7 stipulated to the admission of written testimony. I
    8 have got a witness, Ken Smith, of the Illinois EPA
    9 permit section to give opinions and conclusions. And
    10 Mr. Benoit, on behalf of Briggs, has a witness, Michael
    11 Rapps, who will supplement the record with a great deal
    12 of information hopefully that will be useful to the
    13 Board. But this written testimony must be viewed in the
    14 context of the existing record.
    15 Now I decided to give an opening statement
    16 today in order to assist the Board because it's been two
    17 years since the liability phase. There are new members
    18 on the Pollution Control Board. The record will have to
    19 be reviewed. And that record is substantial, two days'
    20 testimony, well over 100 documentary exhibits. The
    21 primary violations were proven upon this record as well
    22 as -- and this is key, I believe, to the Board's
    23 consideration -- the so-called Andrews' Engineering
    24 exhibits which were admitted subsequently.
     
     
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    1 The primary violations consisted of open
    2 dumping in count 1 and the development and operation of
    3 a landfill without permits, count 2. In violation
    4 respectfully of sections 21(a) and 21(d) of the
    5 Environmental Protection Act.
    6 Now the nature of the Briggs' waste was not
    7 an issue in either count 1 or count 2. And in
    8 consideration of the allegations within count 3 the
    9 Board, however, also found that although the part 811
    10 standards do apply to this unpermitted site, the
    11 complainant had failed, in the Board's view, to prove
    12 that the wastes were chemical or putrescible wastes.
    13 The burden of proof is obviously on the
    14 complainant initially. And the standard is just as
    15 obviously a preponderance of the evidence, what is more
    16 likely than not. There is no dispute that Briggs,
    17 Mr. Poland and Mr. Yoho had failed to demonstrate in a
    18 series of permit applications that the Briggs wastes
    19 ought to be considered inert. That was their
    20 contention. They failed to prove it. We proved that
    21 they failed to prove it.
    22 The consultant for the respondents, James
    23 Schoenhard, testified at the previous hearing that the
    24 concentrations of both barium and selenium were too
     
     
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    1 high, the transcript, page 202. The leachate testing by
    2 Andrews Engineering in November 2000 also indicated that
    3 the levels would not meet the inert standards,
    4 specifically chromium, iron, oil and grease, total
    5 dissolved solids and sulfate were in excess of the inert
    6 wastes classification standards. I refer the Board to
    7 People's Exhibits 73 and 74.
    8 By the way, I should mention I'm giving this
    9 opening statement in lieu of a written brief at the end
    10 because we have already filed our briefs. We have
    11 already made our recommendations. This is an
    12 opportunity, as you have noted, Mr. Hearing Officer, for
    13 additional arguments to be presented, and that's all I'm
    14 trying to accomplish. So I want to tell the Board that
    15 it was correct in looking to People's Exhibit 73, but it
    16 should also look at People's Exhibit 74. The Board had
    17 quoted Exhibit 73 in interim opinion and order of
    18 September '01. And this quote is on page 14. That
    19 document, Exhibit 73, was an October, 26th, 2000, letter
    20 from Andrews Engineering to Counsel for Briggs,
    21 Mr. Benoit.
    22 That letter, Exhibit 73, discussed the
    23 failure of previous sampling of events to demonstrate
    24 that the Briggs wastes could be classified as inert.
     
     
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    1 And that letter, Exhibit 73, proposed that leachate
    2 wells be drilled into the existing exposed fill area in
    3 order to obtain uncontaminated, undiluted and
    4 unattenuated leachate samples. That was done. Exhibit
    5 74 contains those analytical results. However, the
    6 Board did not mention or discuss in an interim order
    7 those analytical results, the levels of chromium, iron,
    8 oil and grease, total dissolved solids and sulfates were
    9 in excess of the inert waste classification standards.
    10 The written testimony of Ken Smith previously
    11 filed and offered into the record at this hearing does
    12 not have to go beyond that evidence. The Illinois EPA
    13 does not have to do its own testing. We did not.
    14 In fact, no further testing has been done.
    15 The written testimony of Mr. Rapps indicates that he had
    16 reviewed all previous testing that was available. And
    17 his opinion -- and I refer the Board to page 12 of his
    18 written testimony -- is, quote, "It is my opinion the
    19 new landfill will likely never meet the inert waste
    20 standards," unquote.
    21 I, of course, suggest that with any statement
    22 the Board should read the entire document. I'm not
    23 suggesting that -- I'm not trying to quote anything out
    24 of context. What I will try to do, however, for the
     
     
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    1 Board is to respectfully contend that we have already
    2 proven one issue that the Board is somehow concerned
    3 with, and that is more likely than not these wastes are
    4 industrial processed wastes, special wastes. They are
    5 not, definitely not, because there is no evidence
    6 whatsoever that they are inert.
    7 In the years prior to the first hearing, the
    8 respondents have collectively failed to demonstrate that
    9 the wastes were inert. Immediately prior to the hearing
    10 Briggs, through Andrews Engineering, had conclusively
    11 demonstrated through proper testing the wastes were not
    12 inert.
    13 I won't go through all of the contentions and
    14 allegations regarding the Andrews documents. They were
    15 provided to the People after the hearings. We got them
    16 into the record. We simply had a -- you know, we didn't
    17 have the opportunity to explore those documents at
    18 hearing with other witnesses.
    19 Now the People also will obey the Board and
    20 not try to relitigate certain issues here. However, we
    21 still, as a matter of argument, can state that we
    22 respectfully disagree with the Board's finding that the
    23 part 811 violations were not supported by a proper
    24 showing.
     
     
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    1 Schoenhard, the consultant for all three of
    2 the respondents had admitted on cross-examination that
    3 the permit application submitted collectively on behalf
    4 of Briggs, Mr. Poland and Mr. Yoho had failed to satisfy
    5 the part 811 requirements. And that was basically what
    6 we had alleged in count 3.
    7 Now the unresolved issues of technical remedy
    8 and penalty could have and perhaps should have been
    9 determined by the Board without further hearing although
    10 it's the Board's prerogative under section 103.212(d) to
    11 conduct a separate hearing as to remedy. The parties
    12 didn't know that the first hearing was only for
    13 liability. The parties didn't know that there would be,
    14 two years later as it turns out, a separate hearing on
    15 technical remedy and civil penalty. None of the parties
    16 had requested bifurcated proceedings on liability and
    17 relief. So the People have already made our case. We
    18 have already introduced testimony and documentary
    19 evidence regarding lack of due diligence, the accrual of
    20 economic benefit and so forth. The so-called section
    21 33(c) and 42(h) factors.
    22 What we will do, and have through the filing
    23 of written testimony of Mr. Smith, is to attempt to
    24 address the Board's various inquiries. And specifically
     
     
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    1 I'm referring to an order issued on January 24, 2002.
    2 Page 4 sets forth several matters as issues for this
    3 so-called second hearing. Our written testimony,
    4 Mr. Hearing Officer, has addressed the regulatory
    5 obligations applicable to the new landfill -- so-called
    6 new landfill or the unpermitted landfill. Secondly,
    7 that the industrial processed wastes generated by Briggs
    8 are special wastes due to the failure to demonstrate
    9 that such wastes might be inert. And, lastly, we have
    10 addressed the possible costs of compliance. But we are
    11 not producing any further evidence. And we are not
    12 filing written briefs.
    13 Exhibit 74 provides the only objective,
    14 definitive and reliable factual evidence in the record
    15 as to the potential environmental risks, the levels of
    16 chromium and so forth. As to economic benefit, it's
    17 obvious, I would argue, that Briggs did accrue some
    18 economic benefit through its arrangements with
    19 Mr. Poland and Mr. Yoho. Exhibits 32 through 70, if
    20 memory serves me right, document the expenditures of
    21 Briggs during the lengthy period of violation for
    22 several years of disposal at the unpermitted landfill.
    23 Now according to the testimony of Mr. Orton,
    24 the plant manager, of the unpermitted landfill half a
     
     
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    1 mile from the plant was, quote, "A good deal," unquote,
    2 transcript 375. The very next page, and this is on
    3 direct examination still, Mr. Orton testified that
    4 Briggs only began to send its wastes to a permitted
    5 landfill when Mr. Poland and Mr. Yoho raised the daily
    6 fee from $500 to $700. This daily fee for disposal was
    7 in addition to Briggs paying half of certain operating
    8 and consulting expenses.
    9 Now I suggest to the Board that it would be
    10 unreasonable to expect a precise quantification of the
    11 economic benefit in a case such as this. I can't come
    12 up with a number. But the record should be reviewed.
    13 The Board should do its work and determine, as best it
    14 can, on the evidence that was put into the record
    15 whether and to what extent there was an economic
    16 benefit.
    17 Now, lastly, I'm, on behalf of the State of
    18 Illinois, contending that Briggs ought to be liable not
    19 only for civil penalties but also for whatever technical
    20 relief may be necessary. This is critical to, quote,
    21 "Assure that the adverse effects upon the environment
    22 are fully considered and borne by those who caused
    23 them," unquote. This obviously is section 2(b) of the
    24 act.
     
     
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    1 We made our recommendations for civil
    2 penalty. For the benefit of the press and you,
    3 Mr. Hearing Officer, who didn't attend the previous
    4 hearing or may have read the briefs, we are asking for a
    5 $25,000 civil penalty against the company and $5,000 or
    6 less against the individuals. But most importantly this
    7 mess cannot be left. The exposed fill area must be
    8 dealt with. If the Board wants to look at its
    9 regulations and look at the record of this case and
    10 allow 2.3 acres of unpermitted waste disposal to simply
    11 be covered up and monitored, I am suggesting that would
    12 be a lousy precedent. In this case by finding that
    13 Briggs was liable and the generator, the Board has set
    14 forth a good precedent on that issue of liability. On
    15 technical relief this is an opportunity, I guess, for
    16 the Board to snatch defeat from the jaws of victory, as
    17 I would look at it, because the unpermitted wastes
    18 improperly disposed of cannot simply be left there.
    19 So I thank you, Mr. Hearing Officer, for your
    20 patience, and I will submit our written testimony
    21 formally to the Board.
    22 HEARING OFFICER HALLORAN: Thank you, Mr. Davis.
    23 Before we proceed, I want to revisit this
    24 stipulation and waiver of right to cross-examination. I
     
     
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    1 want to get it on the record. Mr. Poland, you, in fact,
    2 voluntarily signed -- which I'm going to mark Hearing
    3 Officer Exhibit A -- this waiver of right to
    4 cross-examination of written testimony of Ken Smith,
    5 Mr. Smith and Mr. Rapps; is that correct?
    6 MR. POLAND: Uh-huh.
    7 HEARING OFFICER HALLORAN: Thank you.
    8 Mr. Poland -- I'm sorry, Mr. Yoho, you have
    9 also signed this voluntarily? You are waiving your
    10 right to cross-examination of the written testimony?
    11 MR. YOHO: Yes.
    12 HEARING OFFICER HALLORAN: Thank you very much.
    13 With that said, I will accept again the
    14 written testimony of Ken Smith. I will label it
    15 Complainant's Exhibit A.
    16 MR. DAVIS: And I have a supplement to that,
    17 Mr. Hearing Officer. I had inadvertently, in filing the
    18 written testimony, left off Ken's curriculum vitae,
    19 which is his resume which Mr. Benoit had. And all this
    20 is, Mr. Poland and Mr. Yoho, is sort of a resume
    21 indicating some personal information about his education
    22 and work experience. So I would ask for leave to attach
    23 this to what was filed earlier.
    24 HEARING OFFICER HALLORAN: Any objections or
     
     
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    1 questions, Mr. Poland or Mr. Yoho?
    2 MR. YOHO: No, sir.
    3 MR. POLAND: No.
    4 HEARING OFFICER HALLORAN: Thank you. It will be
    5 taken as a supplement to Complainant's Exhibit A, the
    6 resume of Mr. Ken Smith. So admitted.
    7 Mr. Benoit, would you like to give a
    8 statement?
    9 MR. BENOIT: Just one thing, if I could.
    10 HEARING OFFICER HALLORAN: I'm sorry.
    11 MR. BENOIT: Tom, that's not attached to this. You
    12 can just send me a copy of it.
    13 MR. DAVIS: Oh, sure.
    14 HEARING OFFICER HALLORAN: Mr. Davis, with that
    15 have you rested?
    16 MR. DAVIS: Yes, sir.
    17 HEARING OFFICER HALLORAN: Thank you very much.
    18 Mr. Benoit.
    19 MR. BENOIT: Again, I represent Briggs in this
    20 matter. And in an attempt to follow the Board's January
    21 24th, 2002, order setting out what this hearing was
    22 about, I don't think it's proper to argue about the
    23 violations found or not found based on the initial
    24 hearing, and I won't do so. In addition, what I tried
     
     
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    1 to do in compliance with the Board's order, what my
    2 client has is put together evidence for the Board to
    3 consider as the Board requested in that January 24th
    4 order.
    5 As the hearing officer has mentioned, that
    6 consists primarily of the written testimony of Michael
    7 W. Rapps, and I would like to submit that to the hearing
    8 officer for filing in the record. I would also like to
    9 ask the hearing officer -- I'm just submitting one copy,
    10 but I have a couple of extra copies and there are a lot
    11 of diagrams, color copies attached to that. Would it be
    12 helpful to have a couple more of those for the Board?
    13 HEARING OFFICER HALLORAN: One should be
    14 sufficient. Thank you.
    15 MR. BENOIT: I would also like to submit into the
    16 record Complainant's answer to request to admit by
    17 Briggs Industries, Inc.
    18 MR. DAVIS: Which one?
    19 MR. BENOIT: (Handed document to Mr. Davis.)
    20 I would also like to submit portions of
    21 Complainant's responses to Briggs Industries' second set
    22 of interrogatories. My focus here is on the responses
    23 to interrogatories 9, 16, 17, 23, and 25. And in order
    24 to keep the record smaller, those are the portions that
     
     
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    1 I have copied for introduction into the record.
    2 Now unlike Mr. Davis, I am not going to waive
    3 the right to file a written brief in this matter. I
    4 believe that when the Board considers the testimony of
    5 Mr. Rapps that will be of great assistance to the Board
    6 in determining the technical remedy to impose in this
    7 case. But I would comment -- just one comment Mr. Davis
    8 mentioned that these Andrews documents are something
    9 that he is relying upon and the State is relying upon,
    10 and they didn't have a chance to challenge these Andrews
    11 documents. And I would suggest to the hearing officer
    12 and the Board that today was the day to do that. And so
    13 without waiving the right to file a written brief, that
    14 concludes my comments.
    15 HEARING OFFICER HALLORAN: Thank you, Mr. Benoit.
    16 With exception of Respondent's -- which I marked
    17 Respondent's Exhibit A, the written testimony of Michael
    18 Rapps, that exhibit is admitted into evidence.
    19 With respect to Respondent's Exhibit B, which
    20 I entitled B, Complainant's answer to request to admit
    21 by Briggs Industries, Inc., any objections to this being
    22 admitted into evidence by anyone?
    23 MR. WEST: No, sir.
    24 HEARING OFFICER HALLORAN: Mr. Poland? Mr. Yoho?
     
     
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    22
     
     
     
     
     
    1 MR. POLAND: No.
    2 MR. YOHO: No.
    3 HEARING OFFICER HALLORAN: Respondent's Exhibit B
    4 is admitted.
    5 Complainant's responses to Briggs Industries
    6 Inc., second set of interrogatories which I labeled
    7 Respondent's Exhibit C. Any objections to those being
    8 admitted into evidence?
    9 MR. DAVIS: No, sir.
    10 HEARING OFFICER HALLORAN: I hear no objection.
    11 Respondent's Exhibit B, Respondent's Exhibit C is
    12 admitted into evidence
    13 Mr. Poland, do you have any evidence today?
    14 I assume Mr. Benoit has rested.
    15 MR. POLAND: I believe that's all I have today.
    16 Everything else has been well covered. I believe that's
    17 all I have.
    18 HEARING OFFICER HALLORAN: I will cover this.
    19 Mr. Poland has tendered to the hearing officer October
    20 9th, 2001, letter from Mr. Donald Moffitt, state
    21 representative, 94th District. And, actually, there are
    22 two letters. I'm sorry. Another letter dated October
    23 16th, 2001, from Mr. Moffitt as well. I have entitled
    24 the October 9th, 2001, letter Hearing Officer Exhibit B.
     
     
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    23
     
     
     
     
     
    1 And I also entitled the October 16th, 2001, Hearing
    2 Officer Exhibit C. What will happen is, if I accept
    3 them, they will be accepted only as a public comment
    4 under section 101.628.
    5 Mr. Davis, any objections to these letters?
    6 MR. DAVIS: No, sir. Mr. Poland was kind enough to
    7 mention them several months ago. I advised him I could
    8 not give him any legal advice, but it was my
    9 understanding that they would be admissible under the
    10 Board's rules for whatever weight the Board wanted to
    11 give it. So I have no objection.
    12 HEARING OFFICER HALLORAN: Mr. Benoit?
    13 MR. BENOIT: I do object to their entry without
    14 Mr. Moffitt being present.
    15 HEARING OFFICER HALLORAN: Does anybody else have
    16 any objections?
    17 (No audible response.)
    18 HEARING OFFICER HALLORAN: Over the objection of
    19 Mr. Benoit, I will accept these two letters as public
    20 comments and entitle them Hearing Officer Exhibit B and
    21 Hearing Officer Exhibit C.
    22 With that said, Mr. Yoho, do you have any
    23 evidence today?
    24 MR. YOHO: No. I have a question if it's not out
     
     
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    24
     
     
     
     
     
    1 of context.
    2 HEARING OFFICER HALLORAN: Feel free to ask it.
    3 MR. YOHO: This seems like one of the major
    4 questions is that the site be evacuated. I mean, the
    5 possibility of that.
    6 MRS. YOHO: Excavated.
    7 MR. YOHO: Excavated, I'm sorry. I don't
    8 understand by the hundreds of sites around the
    9 surrounding counties including Knox and including some
    10 state property is not also an issue if we are singled
    11 out for this one portion. I mean, that's just a
    12 question not a -- you know, I don't know if I'm out of
    13 context by asking that or not.
    14 HEARING OFFICER HALLORAN: Well, I mean, the Board
    15 will decide whether you are out of context, but feel
    16 free to continue.
    17 MR. YOHO: That's all I have, sir.
    18 HEARING OFFICER HALLORAN: Mr. Poland has rested
    19 and Mr. Yoho has rested. And Mr. West, since you are a
    20 third party respondent, we will take your
    21 issues -- comments up at a later date at another
    22 hearing. Is that --
    23 MR. WEST: That's fine.
    24 HEARING OFFICER HALLORAN: Let's --
     
     
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    25
     
     
     
     
     
    1 MR. DAVIS: I'm sorry. Mr. Hearing Officer, may I
    2 respond to just a couple of things that Mr. Benoit
    3 raised?
    4 HEARING OFFICER HALLORAN: Yes, you may.
    5 MR. DAVIS: On the issue of the Andrews documents,
    6 I wasn't trying to convey that we had missed our
    7 opportunity to challenge the documents. In fact, we are
    8 relying upon those documents, as the Board will see in
    9 the written testimony of Mr. Smith, cites those
    10 documents as a basis for his opinion.
    11 And then, secondly, real quick, we are
    12 waiving our right to file an initial brief. Depending
    13 upon what Mr. Benoit has to say in his brief, I may
    14 exercise an opportunity, if allowed to, to reply.
    15 HEARING OFFICER HALLORAN: Thank you. We will go
    16 off the record shortly, and we will get a hearing
    17 scheduled.
    18 (Discussion off the record.)
    19 HEARING OFFICER HALLORAN: We are back on the
    20 record. We are talking about scheduling the posthearing
    21 briefs. We have concluded that the transcript will be
    22 due on December 20th. However, in all likelihood it
    23 probably won't be posted on our web site until December
    24 23rd. That is a Monday.
     
     
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    26
     
     
     
     
     
    1 With that said, the complainant, Mr. Davis,
    2 has waived his right to his opening brief. However,
    3 Respondents have not waived their right. So we set
    4 Respondent's posthearing brief due February 5th, 2003.
    5 And the complainant's reply, if any, is due February
    6 20th, 2003. And for the record, I would like to make a
    7 public comment due date which would be January 16th
    8 public comment is due to be filed. And that will be
    9 weighted accordingly by the Board. I don't think there
    10 is anything else. And, if not, have a safe trip home
    11 and a Happy New Year and happy holidays. Thank you very
    12 much.
    13
    14
    15 (Whereupon, the proceedings concluded
    16 at 10:40 a.m.)
    17
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    27
     
     
     
     
     
    1 STATE OF ILLINOIS )
    ) SS
    2 COUNTY OF PEORIA )
    3
    4
    5 CERTIFICATE OF REPORTER
    6
    7 I, GALE G. EVERHART, CSR-RPR, Notary Public
    8 in and for the County of Peoria, State of Illinois, do
    9 hereby certify that the foregoing transcript, consisting
    10 of pages 1 through 26, both inclusive, constitutes a
    11 true and accurate transcript of the original
    12 stenographic notes recorded by me of the foregoing
    13 proceedings had before Hearing Officer Bradley P.
    14 Halloran, in Galesburg, Illinois, on the 10th of
    15 December, A.D. 2002.
    16
    17
    18 Dated this 16th day of December, A.D. 2002.
    19
    20
    21
    22 ___________________________________
    GALE G. EVERHART, CSR-RPR
    23 Illinois License No. 084-004217
    24
     
     
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