BEFORE
THE
ILLINOIS
POLLUTION CONTROL
BOARD
IN
THE
MATTER OF:
~4PR
112003
STATE OF ILLINOIS
PROPOSED
PI~ND~NTS TO:
R03-19
~
Control Board
PUBLIC
PARTICIPATION
RULES
IN
35
(NPDES
Rulemaking)
ILL.
ADM.
CODE
PART
309
NPDES
PERMITS
AND
PERMITTING
PROCEDURES.
Proceedings
held
on
April
2nd,
2003,
at
10
a.m.,
at
the
offices of the Illinois Pollution Control Board,
600 South Second
Street, Suite 403, Springfield,
Illinois, before Marie Tipsord,
Chief Hearing Officer.
Reported by:
Beverly
S.
Hopkins,
CSR, RPR
CSR License No.:
084-004316
KEEFE
REPORTING
COMPANY
11 North 44th Street
Belleville,
IL
62226
KEEFE
REPORTING
COMPANY
1
Keefe Reporting Company
APPEARANCES
HEARING
TAKEN
BEFORE:
Illinois Pollution Control Board
600 South Second Street
Suite 403
Springfield,
Illinois
ILLINOIS POLLUTION
CONTROL
BOARD
MEMBERS:
Mr.
G.
Tanner Girard,
Ph.D.
Mr.
Michael Tristano
Mr.
Thomas
E.
Johnson
Ms.
Doris
C.
Karpiel
Ms.
Lynne
P.
Padovan
ALSO
PRESENT:
Mr.
Fredric
P.
Andes
Mr.
Roy
M.
Harsch
Mr.
Toby Frevert
Mr. Albert Ettinger
Mr.
Frederick
D.
Keady
Mr.
Fred L.
Hubbard
Mr. Mark Miller
Ms. Margaret Mitchell
Ms. Wendy Butler
NOTE:
Various public participants also present
but not duly identified in the record.
INDEX
OPENING
STATEMENTS
Mr.
Frederick
L.
Hubbard
6
Mr.
Fredric
P.
Andes
15
Mr.
Toby Frevert
25
Mr.
Mark
L.
Johnson
51
Mr. Roy M.
Harsch
53
PRE-FILED
TESTIMONY
Mr.
Frederick
6
Mr.
Fredric
P.
Andes
15
Mr.
Toby Frevert
25
Mr.
Mark
L.
Johnson
51
Mr.
Roy M.
Harsch
53
(Note: Exhibits not tendered for inclusion
into deposition
transcript.)
KEEFE
REPORTING COMPANY
2
Keefe Reporting Company
1
HEARING
OFFICER
TIPSORD:
Good
morning.
My
name
is
Marie
2
Tipsord,
and
I
have
been
appointed
by
the
Board
to
serve
as
3
hearing
officer
in
the
proceeding
entitled
In
the
Matter
of
4
Proposed Amendments Public Participation Rules in 35 Ill.
Adm.
5
Code
Part
309 NPDES Permits and Permitting Procedures.
The
6
Docket No.
is R03-19.
7
To
my
right
is
Dr.
Tanner
Girard
the
lead
board
member
8
assigned to this matter.
Also
present to my left is Board
Member
9
Michael Tristano and Board
Member
Doris Karpiel will be joining
10
us shortly.
They have also been assigned to this matter.
In
11
addition to Dr. Girard’s right is Board Member Lynne Padovan and
12
to Member Tristano’s left is Chairman Tom Johnson.
In addition,
13
I believe, Chairman Johnson’s assistant will be joining us as
14
well.
15
MR. JOHNSON:
He will.
16
HEARING OFFICER TIPSORD:
Before we begin,
I have a couple
17
of preliminary matters I’d like to address.
I have two minor
18
motions before us.
First on March 27th the Board received
a
19
Motion to Substitute the Comments of the Illinois Coal
20
Association.
That motion is granted.
The second motion on the
21
same date we filed a motion
——
we received a motion to file
22
instanter pre-filed testimony of Roy M.
Harsch, and we also grant
23
that motion.
24
Also pending before the Board is
a motion for a third
3
Keefe Reporting Company
1
hearing filed by the Illinois Environmental
Regulatory
Group as
2
that motion is not currently ripe.
We will not be
--
I
will not
3
be ruling on that motion.
The Board will be ruling on that
4
motion in its meeting two weeks from tomorrow.
Everyone has 14
5
days to respond to that motion in writing to the Board.
6
This is the second hearing to be held in this proceeding.
7
The purpose of today’s hearing is to hear the testimony pre-filed
8
for today’s hearing and to allow questions of the testifier.
9
If anyone here would like to testify and did not pre-file,
10
we will allow you to testify if time allows.
There is a sign-up
11
sheet on the table
to the left of the room if you wish to testify
12
but have not pre-filed.
13
The order in which we will hear the testimony was
14
determined by the receipt of testimony of the board’s offices.
15
The first testifier will be Fredrick L. Hubbard, second Fredric
16
P.
Andes, third Toby Frevert,
fourth Mark L.
Johnson and fifth
17
Roy M.
Harsch.
We will take the testimony as it’s read.
18
Anyone may ask a question; however,
I do ask you to raise
19
your hand, wait for me to acknowledge you,
after I have
20
acknowledged you, please state your name and who you represent
21
before you begin your questions.
Please speak one at a time.
If
22
you are speaking over each other,
the court reporter will not be
23
able to get your questions on the record.
Please note any
24
questions asked by a board member or staff are intended to help
4
Keefe Reporting Company
1
build a complete record for the board’s decision
and
not to
2
express any preconceived notion or bias to the Board.
3
To the left of the room there are sign-up sheets for the
4
notice and service list.
If you wish to be on the service list,
5
you will receive all pleadings and pre-filed testimony in this
6
proceeding.
In addition, you must serve all of your filings
on
7
the persons on the service list.
If you wish to be on the notice
8
list, you will receive all Board and hearing officer order’s in
9
the rulemaking.
If you have any questions which list you wish to
10
be placed on, please see me at a break.
There are also copies of
11
the current service and notice list inside of the room.
12
Dr.
Girard.
13
MR. GIRARD:
Good morning.
Welcome to the second hearing
14
in this rulemaking proceeding to consider changes in the public
15
participation requirements for issuance of NPDES permits.
We
16
appreciate the efforts of several organizations that filed
17
pre-filed testimony or public comments prior to this hearing
18
including Vermilion Coal Company, Illinois Coal Association,
19
Illinois-American Water Company, Illinois EPA and Illinois
20
Association of Waste Water Agencies.
We look forward to your
21
testimony and questions today.
Thank you.
22
HEARING OFFICER TIPSORD:
Anyone else?
Mr. Tristano?
23
MR. TRISTANO:
(Shakes head.)
24
HEARING OFFICER TIPSORD:
All right.
With that then,
let’s
5
Keefe Reporting Company
1
begin if there’s no other preliminary issues.
Okay.
Then we’ll
2
start with Mr. Hubbard.
Can we have you sworn in please.
3
WHEREUPON:
4
FREDERICK L.
HUBBARD,
5
called as a witness herein, having been first duly sworn,
6
deposeth and saith as follows:
7
HEARING OFFICER TIPSORD:.
And if there’s no objection we’ll
8
enter Mr. Hubbard’s testimony as Exhibit No.
3
--
or No.
2,
I’m
9
sorry.
Seeing none,
that would be admitted as Exhibit No.
2.
If
10
you like to summarize your testimony,
please, go ahead.
11
MR. HUBBARD:
Please.
My name is Fred, F-R-E-D, middle
12
initial
L, Hubbard is H-U-B-B-A-R-D,
like the lady famous in the
13
nursery rhyme.
I represent Vermilion Coal Company.
We were a
14
participant as amicus in the Prairie Rivers, Black Beauty case
15
that appears to have precipitated the request for rule changes.
16
It’s my understanding that that decision on leave to appeal
17
was supposed to be filed at nine o’clock this morning with the
18
Illinois Supreme Court.
In addition to what we filed, we would
19
like to suggest that the owner of property be considered as a
20
party in the permitting process.
In the case of the Black Beauty
21
Coal Company permit, we have an owner with somewhere in excess of
22
10 million dollars worth of coal who was required to remain as an
23
amicus in the permitting process.
Since this could materially
24
reduce the value of the coal owner’s coal to nothing if the
6
Keefe Reporting Company
1
permit
is
not
allowed,
we
think
consideration
should
be
given
to
2
permitting
the
owner
to
participate
as
a
party.
3
We are an advocate of an efficient proceeding.
We don’t
4
want to see the permitting process get too long,
too bogged down
5
or too technical, but we certainly have no objection with the
6
ultimate goal of clean water and I don’t know how anybody could
7
object to that.
We’d like to suggest that if documents,
reports
8
or tables are to be attached to the petition for the permit and
9
to be attached to the draft permit or made a part of the draft
10
permit,
that a similar requirement be imposed upon any objector.
11
Now the objections appear to be in two types.
The NIMBY
12
objection which is the emotional plea.
Typically most sincerely
13
heartfelt but it’s more emotional than logic.
So a logical
14
objection says that the permit doesn’t meet a certain technical
15
requirement or it exceeds
a certain limit or whatever,
I would
16
suggest that the rules would include
a requirement that the
17
objector also attach any documents,
reports,
tables, references
18
upon which they rely.
19
One of the significant things that I have included in my
20
comments on the proposed rules is a suggestion that the modifiers
21
be deleted where it’s like significant,
reasonable.
My basis for
22
that comes on 40 years of being a practical, downstate,
23
country-type lawyer.
I don’t say that you shouldn’t use those
24
standards.
Obviously you want to have a reasonable ruling.
You
7
Keefe Reporting Company
1
obviously
want
to
make
sure
everything
is
significant,
you
want
2
to make sure it’s admissible.
But when you start putting those
3
terms into the rules themselves, you then create a possibility of
4
difference of opinion.
What
I
regard as reasonable,
someone else
5
might not regard as reasonable and somebody else might still have
6
a third opinion, and once you put that in there, you create a
7
basis for objections.
8
Yeah, your decision was right, but it wasn’t reasonable,
9
no.
I think those things should be completely taken out and the
10
rule should be written fair square but interpreted with the
11
modifiers.
12
It’s our opinions that these rules will be probably slanted
13
toward the objectors if they are approved as written,
and this
14
relates to my previous comment.
All
the objectors has got to do
15
is say, you don’t meet the test, you don’t meet the rules, you
16
can’t have your project.
So these rules appear to attempt to
17
shift that burden over onto the petitioner completely, and we
18
think that the statute clearly provides that when an objector
19
raises
an
objection,
has
a
burden
of
proof
on
appeal,
the
statute
20
still controls.
It’s a general rule, and I’m sure you’re all
21
aware of it.
That your rules have to be in accordance with the
22
enabling statute adopted by the legislature,
and I don’t think
23
you should deviate from that intent.
24
Lastly, with regard to the third hearing, my client would
8
Keefe Reporting
Company
1
have no objection to
a third hearing.
I’m done.
Any
questions?
2
HEARING
OFFICER TIPSORD:
Thank you.
Are
there any
3
requests
of
Mr.
Hubbard?
4
EXAMINATION
5
BY MR.
ETTINGER:
6
Q.
I’m Albert Ettinger.
I represent the Prairie Rivers
7
Network, Yellow PC and a number of other petitioners.
You’re a
8
practicing lawyer for a long time obviously?
9
A.
40 years,
sir.
10
Q.
40 years,
sir.
How do you feel about the fourth
11.
amendment to the United States Constitution?
12
A.
I’m in favor of it.
13
Q.
Okay.
So
I assume you don’t think that the guys who
14
wrote that were wrong when they put in unreasonable search and
15
seizure, do you?
16
A.
No.
17
Q.
No.
And
that’s because you can’t define in advance all
18
the conditions in which a search and seizure might be reasonable?
19
A.
I think that’s somewhat different than these rules.
20
Q.
Okay.
How about the other cases
--
Well, how about the
21
terms here that you refer to fair,
are you
——
you’re not opposed
22
to fairness,
are you?
23
A.
Not opposed to fair.
24
Q.
Okay.
How about if the Board has already used fair in a
9
Keefe Reporting Company
1
portion of its rules,
do you believe they should be stricken?
2
A.
Not necessarily.
3
Q.
But it gives
--
it gives cause for appeal;
right?
4
A.
It could give cause for appeal.
5
Q.
I see.
Well,
how about compliance with federal law, you
6
don’t think that we shouldn’t comply with federal law,
do you?
7
A.
I’m not quite sure where you’re going with that.
No,
8
I’m not against with complying with federal law.
It
may
not be
9
applicable,
however.
10
Q.
Okay.
But if it were applicable,
you believe that our
11
conduct at the Illinois Pollution Control Board and the Illinois
12
Environmental Agency should be consistent with federal law?
13
A.
Yeah,
if it’s a procedure to do that.
14
Q.
Right.
Do you believe that the language in the existing
15
rules that requires the agency in many instances to act
16
consistently with federal law should be stricken?
17
A.
Negative.
18
Q.
You do not?
19
A.
I do not.
20
Q.
But you’re opposed to that in this particular case?
21
A.
In that particular context.
22
Q.
And
why is that?
23
A.
Because it can create uncertainty.
24
Q.
And you don’t believe there’s uncertainty in the other
10
Keefe Reporting Company
1
places that it’s located?
2
A.
It’s been there long enough.
I think it’s been
3
interpreted
and,
therefore,
it’s
become
more
solidified.
4
Q.
You think that it’s so clear what federal
law is in all
5
these cases
——
6
A.
Oh, no.
7
Q.
--
the agency knows what its doing?
8
A.
I know the agency knows what it’s doing, but I’m not
9
sure if federal law is correct.
10
Q.
I have a question about your objection with 35 Illinois
11
Administrative Code, Part 105, could you just describe that
12
section?
13
A.
I didn’t memorize it,
sir.
Which
one did you ask about,
14
Al?
15
Q.
Actually I’m anxious
to see if
--
It’s the last sentence
16
of your pre-filed testimony.
17
HEARING
OFFICER TIPSORD:
The last sentence of the
18
pre-field
testimony?
19
MR.
TRISTANO:
The last sentence on page 1?
20
A.
The last sentence on page 2.
21
Q.
(By Mr. Ettinger)
Right.
There is
a hearing provision
22
under 35 Illinois Administrative Code Part 105 which is a
23
catchall review hearing which appears to have been totally
24
ignored in the proposed drafts?
11
Keefe Reporting Company
1
A.
Okay.
2
Q.
I just wanted to ask you what that’s about?
3
A.
That’s
about
the
review
hearing
procedure
that
you
and
I
4
and others went through in the Prairie Rivers’ objection to the
5
Black Beauty Coal in which your position before the Board was
6
that nothing that took place in that hearing was in the record
7
for review and,
indeed, that’s the way the procedure is set up.
8
That that hearing has not heard any new evidence to be
9
considered.
And
I’m suggesting that if that hearing is, in fact,
10
meaningless, it be abolished and if that hearing is to have any
11
meaning, that whatever takes place in the hearing, will be a part
12
of the record for consideration by the Board.
13
Q.
So now 105 is the appeal?
14
A.
Yes,
sir.
15
Q.
Okay.
So what you’re saying then is that the Board
16
should be willing to hear new evidence in the appeal proceedings?
17
A.
What I’m saying is that perhaps in lieu of a third
18
hearing on any changes in the permit,
that hearing could be more
19
meaningful if it did permit additional evidence, yes.
20
Q.
Are
you aware that the Board as pursuant to state law as
21
to what evidence it
may
hear in the appeal proceeding?
22
A.
Completely.
23
Q.
Sir, are you suggesting a change in state law or are you
24
suggesting that the Board should disobey state law?
12
Keefe Reporting Company
1
A.
No, I’m
--
I don’t have
--
not disobeying state law.
2
I’m suggesting if in that hearing
is,
in fact, meaningless
3
because state law makes it meaningless, that it be considered to
4
be admitted.
5
Q.
Okay.
So your proposal is to actually to drop the
6
hearing in the appeals rather than
--
7
A.
Particularly if the third hearing is allowed on any
8
significant changes.
9
Q.
Okay.
Do you
—-
You speak about fair and reasonable for
10
the agency and the applicants provide documents and materials,
11
did you construe a petition as saying that parties who are
12
objecting to the permit would not be required to put materials
13
into the record but could still use those materials later in
14
appeal?
15
A.
It’s my understanding that the proposed new rules are
16
going to require additional filings from an applicant.
Because
17
part of what is proposed and part of what we ran into in the
18
Black Beauty case, was that what needs to be attached to the
19
application in order to meet all the requirements.
In this
20
process,
as I learned very early in my legal career,
is kind of
21
like a bowl of jello.
You don’t really know what you need until
22
something else happens and then that something else happens and
23
then you need something to respond that vice versa and that’s the
24
way the evidence works.
13
Keefe Reporting Company
1
And it seems to me it’s obvious that if an applicant hasn’t
2
attached to something and an objection,
should be attached,
they
3
ought to have the opportunity to amend and attach it.
Likewise,
4
if an objector comes up with something that maybe is raised
5
later,
I don’t have a problem with an objector raising something
6
later, but it seems to me we ought to get as close to the battle
7
as early as we can with as much ammunition as we can to keep this
8
process moving rapidly and efficiently and get to a fair and
9
reasonable result.
10
Q.
But you don’t have
a problem with the rule that requires
11
applicants to get their information in within 30 days after the
12
public hearing?
13
A.
That seems reasonable to me.
14
MR. ETTINGER:
That’s all I have.
15
HEARING OFFICER TIPSORD:
Anyone else?
Thank you very
16
much.
Next we’ll move on to Fredric Andes.
17
MR.
ETTINGER:
Excuse me.
Can we go off the record?
18
HEARING OFFICER TIPSORD:
Sure.
19
(A discussion was held off the record.)
20
HEARING
OFFICER TIPSORD:
There’s no objection.
We will
21
admit the
--
Oh,
wait.
First you have to be sworn in.
22
WHEREUPON:
23
FREDRIC ANDES,
24
called as a witness herein, having been first duly sworn,
14
Keefe Reporting Company
1
deposeth and saith as follows:
2
HEARING OFFICER TIPSORD:
There’s no objection.
We’ll
3
admit the pre-filed testimony of Fredric
P. Andes as Exhibit No.
4
3.
Seeing none,
so admitted.
I
ant pronouncing your last name
5
correct, aren’t I?
6
MR.
ANDES:
That’s correct.
7
HEARING OFFICER TIPSORD:
Thank you.
8
MR. ANDES:
I’m Fred Andes.
I’m here on behalf of the
9
Illinois Coal Association.
I’m with the law
firm
of Barnes &
10
Thornburg
and
as noted we pre-filed testimony.
I’ll summarize
11
that very briefly.
The Association believes that the current
12
public participation procedures for the permitting process are
13
adequate.
We believe that the proposed rule,
and we’ve laid out
14
our concerns in the testimony, would have a series of problems.
15
We think overall it would introduce unnecessary complexity into
16
the process,
slow the permitting process down substantially in
17
many circumstances and create costly delays for Illinois business
18
which would also discourage companies from locating or expanding
19
in this state.
20
However, we’re open to working with the other stakeholders
21
to discuss these concerns,
try to resolve them.
We understand
22
that from the pre-filed testimony submitted by Illinois EPA that
23
the Agency is interested in doing that and perhaps modifying the
24
proposal.
We look forward to working with the other stakeholders
15
Keefe Reporting Company
1
to try to get a resolution that’s acceptable to everyone.
2
HEARING OFFICER TIPSORD:
Thank you.
Are there any
3
questions?
4
EXAMINATION
5
BY MR.
ETTINGER:
6
Q.
I guess
I have
——
I guess I have
a couple.
You claim
7
your concern that in your pre-filed testimony that the appeals
8
regarding fairness might hold up the issuance of permits,
is that
9
a concern of yours?
10
A.
When you say appeals based on fairness?
11
Q.
Claims that the proceedings and the Agency,
the way this
12
would come up as
I envision it,
is that the Agency would grant
13
the permit but the third party would appeal to the Board based on
14
the claim that the permit was granted using unfair procedures,
15
are you concerned that that would lead to holding up a permit?
16
A.
Yes, because of provisions like the one that says the
17
permit can’t be issued unless the public has a fair opportunity
18
to comment.
We’re not sure as to what that kind of term means.
19
Does that mean only what the current procedures say in terms of
20
opportunity and comment?
In this case we’re not sure why it’s
21
needed or does it mean something else, which then raises the
22
issue of some kind of subjective fairness concept of coming into
23
the process.
24
Q.
Well,
it says proposed,
and according to your testimony,
16
Keefe Reporting Company
1
proposed
revision
would
simply
add an additional basis for
2
challenging a permit by the Agency,
is that your concern?
3
A.
Yes.
4
Q.
What’s your understanding of what happens when a permit
5
has been issued by the Agency or somebody appeals it, what’s the
6
legal affect of the permit?
7
A.
The legal affect of the permit during the appeal
8
process?
9
Q.
Correct?
10
A.
Well, are you talking in terms of a third party appeal
1.
or
a discharge appeal?
12
Q.
Well,
if a third party appeal would be most important in
13
this case?
14
A.
Well, let me ask you
a question.
It doesn’t seem to me
15
that this process deals with that issue in terms of whether
16
permits condition are stayed or whether permits in fact; right?
17
Q.
Exactly.
So my point is is your concern sake that we
18
will be holding up permits and discouraging businesses from going
19
forward,
is it not true unless the Board stays the permit that
20
the business can go forward with its valid permit that was issued
21
by the Agency?
22
A.
Oh,
I see the point.
While it’s true the permit would
23
be stayed,
the discharge would be taking
a risk that later in the
24
process that permit could end up being either modified or even
--
17
Keefe Reporting Company
1
or even revoked.
So it’s hard to go forward building your
2
facility or expanding or changing your discharge not knowing
3
whether at the end of the process things will be changed enough
4
to take down what you’ve put up.
5
Q.
That’s only if they think there’s a danger that the
6
third party will actually win and prove to this Board that the
7
procedure that issued the permit was, in fact, unfair?
8
A.
And true.
And we believe that’s why we’re concerned is
9
that we believe this set of procedures gives new ground or could
10
be read to give new grounds for overturning a permit based on
11
various objective
-—
based on
a very subjective basis.
So
12
there’s an increased likelihood that you will get a permit and
13
then it will be overturned on permit.
14
Q.
And increased likelihood?
15
A.
Yes.
16
Q.
Are
you familiar with the current regulations regarding
17
public hearings on NPDES application?
18
A.
Okay.
19
Q.
Okay.
Are
you ware that that clause requires that
a
20
hearing be held which is stale?
21
A.
Yes.
22
Q.
Have there been a lot of appeals based on that?
23
A.
Not to date.
24
Q.
And you think new appeals will be based on a broad
18
Keefe Reporting Company
1
clause that will require the overall proceeding to be fair?
2
A.
Well,
they think that
--
there are a number of changes
3
that are in the proposal that would give new grounds for appeal
4
and make it more likely that there would be significant permit
5
appeals in the future.
6
Q.
If we were to change that fair opportunity to appeal
7
language or fair opportunity comment language to something that
8
was, shall we say,
a little stiffer on a burden on appeal, would
9
that meet any of your concerns?
10
A.
Well,
it’s hard to say without reviewing actual
11
language.
As I said, we’re certainly willing to sit down and
12
talk about those all these issues and see if there are ways to
13
resolve our concerns.
14
Q.
Are you concerned about the proposal that issues
—-
that
15
permits not be issued if the procedures is used in issuing them
16
are not consistent with federal law?
17
A.
Well,
I think our
--
our take on that,
and in our
18
testimony,
is that we believe that’s redundant since currently
19
the permits cannot be issued if they’re inconsistent with federal
20
law,
so we’re not sure why that was needed as part of the
21
regulation.
22
Q.
So it’s your belief that currently
a permit could not be
23
issued if the procedures used to formulate it were inconsistent
24
with federal law?
19
Keefe Reporting Company
1
A.
Well, if the procedures
--
the procedures that the State
2
has were issued and the State was given delegation by Illinois
--
3
by USEPA,
which I don’t believe has been withdrawn,
so the
4
judgment by USEPA has been that the procedures they say are
5
consistent with Federal law and USEPA has not vetoed any permit
6
on the basis that they’re inconsistent with federal law, so I
7
don’t think on that basis that we have an issue.
8
Q.
So it’s your position that State rules,
once approved by
9
USEPA, could never be found later by Federal United States
10
Environmental Protection Agency as being misconstrued or
11
construed so that they’re longer consistent with federal law?
12
A.
No,
it’s possible that USEPA could determine that the
13
requirements are not consistent with federal law.
I’m not sure
14
to what extent they would say, well,
the rule itself in language
15
is consistent with the way
--
the way it is being applied is not.
16
I’m not sure that’s something that the EPA would instill.
17
Q.
I’m sorry.
I need to grab something.
Okay.
Is it your
18
belief now that,
let’s say,
a third party brought in appeal and
19
they wanted to make an argument based on federal law that the
20
procedures that had been used by the Agency in issuing the permit
21
be improper, would that be a valid argument?
22
A.
I think that’s an argument to be brought to the USEPA.
23
I think the issue is if one believes that the State’s procedures
24
are not consistent with federal law, USEPA has an opportunity to
20
Keefe Reporting Company
1
require
changes
if
it
believes
that’s
the
case.
But
to
--
to put
2
that into a State process and the State ought to be making an
3
independent determination of that,
you know,
irrespective of what
4
the Federal Government believes I’m not sure it’s appropriate.
5
Q.
Okay.
So you’re telling me I should file a
6
de-delegation position instead of going to the Illinois Pollution
7
Control Board with this problem?
8
A.
I think the proper issue is whether USEPA has taken a
9
position
that
the
Illinois
procedures
are
not
consistent
with
10
federal law, that if that’s the case,
that the issue needs to be
11
discussed
and
resolved,
but
I
don’t
think
that
the
State
12
permitting
process, individual
permitting
proceedings,
I don’t
13
believe are the proper venue for that issue of the validity of
14
the
overall
procedures.
15
Q.
I think I’m clear, but just to be clear,
let us
imagine
16
that as applied or misinterpreted by the Agency someone were to
17
do something which was inconsistent with federal procedures for
18
issuing NPDES permits,
it’s your view that the only thing the
19
applicant
--
or sorry, that the third party can do about it would
20
be to
run
to Region 5 and try and get an immediate de-delegation
21
of this State program in order to permit that permit from being
22
issued?
23
A.
I think there are a
number
of options that involve
24
because I think there’s a belief that State procedures or
21
Keefe Reporting Company
1
application
then
is
not
consistent
with
federal
law,
and
I
2
believe there are other options short of the delegation.
But
I
3
think that it’s proper to say that’s not an issue in the
4
particular
meetings
of
individual
permitting
procedures
in
the
5
State, but rather if there is an issue whether of the procedures
6
or the application case that that’s dealt with the matter in
7
federal law.
8
Q.
Are
you aware in numerous portions in the existing rule
9
which things are required to be consistent with federal law,
do
10
you believe that was a drafting mistake?
11
A.
No.
As I said,
we believe that adding this additional
12
condition, we’re not certain to add it.
If
--
if it is already
13
in as it is settled in provisions that were not sure what to add
14
to that.
If it is intended to add something to that,
then we’re
15
concerned about what that thing is.
16
Q.
With regard to the language that is proposed in the
17
petition, which it’s verbatim federal regulation,
do you agree
18
that they properly quoted the federal regulations?
19
A.
In the places where it is stated a provision of federal
20
regulations,
I believe that’s so.
21
Q.
And so do you see any harm in putting it in the Illinois
22
rules other than the extra inc perhaps used in the
——
23
A.
Well,
I think we had two issues with regard to that.
24
One, was in some areas simply means redundant.
Seems to be
22
Keefe Reporting Company
1
unnecessary.
And
then
I
think
our
second
question
is
if
it’s
not
2
redundant,
if it’s not a necessary interest, is there some
3
concerns that are being raised that’s intended to be addressed by
4
this
language.
What
we
ought
to
be
talking
about
is
figuring
out
5
more directive ways of the issues and how could it be addressed.
6
We’re not sure why adding federal language has much of
a benefit.
7
(Ms. Karpiel enters the room.)
8
Q.
Well, are you confident in every case that current rules
9
require the Agency to act consistently with federal law,
that
10
we’ve covered all of the areas in which we would want them to act
11
consistently with federal law?
12
A.
Well, my
impression
has been,
and I think the testimony
13
from the last hearing, it indicated that there are
a
number
of
14
areas where the petitioner asks for federal language to be stored
15
and the testimony of the Agency was, well,
we already do it that
16
way.
We have done it that way.
So we’re not sure
——
so my
17
question is then,
well,
is there a real need for us to add that
18
requirement when that’s already what the Agency does,
which goes
19
to
the
redundant
or
unnecessary
issue.
20
Q.
Well,
I’ve paid my income tax, do you think there’s
a
21
law that’s necessary for us to have a law that requires me to
22
continue paying my income tax or should we just go ahead and
23
abolish that law?
24
A.
I think there are always plenty of requirements which
23
Keefe Reporting Company
1
are responsible for people to pay their income tax.
2
MR. ETTINGER:
I don’t have any further questions.
3
HEARING
OFFICER
TIPSORD:
Are
there any other questions of
4
Mr.
Andes?
5
MR.
TRISTANO:
In your conclusion you said the proponents
6
made the proposal would not improve opportunities for effective
7
public
participation
in
the
Illinois
NPDES
permitting,
and
then
8
you suggest that die-hard opponents of projects requiring NPDES
9
permits
will delay those
permits
through
uncommon
administrative
10
appeals, could you just summarize why think those two things?
11
MR.
ANDES:
Well, we think that there are opportunities
12
right
now
for
interested
parties
with
legitimate
concerns
to
13
raise those and get them addressed in the permitting process.
14
Our
concern was that the proposed changes would introduce
15
substantial
additional
subjectiveness
and
subjectivity
into
the
16
process and would provide some rounds for objection that no one
17
would really know right now how they would be interpreted.
And
18
then it confuses a lot of uncertainty into the planning process
19
for companies who want to locate or expand not
——
simply
not
20
knowing whether based on some of that fairly
ambiguous
language
21
their project could be stopped for years or even denied.
That’s
22
our concern and, you know,
that’s what we want to try to address.
23
HEARING
OFFICER
TIPSORD:
Anything
further.
Thank
you
very
24
much,
Mr.
Andes.
Next we will proceed with the testimony of Toby
24
Keefe Reporting Company
1
Frevert,
IEPA.
2
WHEREUPON:
3
TOBY
FREVERT,
4
called as a witness herein, having been first duly sworn,
5
deposeth and saith as follows:
6
HEARING
OFFICER
TIPSORD:
If there’s no objection we’ll
7
admit
Mr.
Frevert’s
testimony
as
Exhibit
No.
4.
Seeing
none,
it
8
will be marked as Exhibit No.
4.
Toby, if you’d like to
9
summarize.
10
MR.
FREVERT:
Okay.
As stated at the last hearing it’s the
11
Agency’s
objective
to
work
through
this
petition
and
the
proposed
12
amendments
to
Part
9
rules
in
detail
in
confrontation
with
the
13
various
interested
parties
and
stakeholders.
I
personally
want
14
to make it clear we’re trying to identify those areas of
15
disagreement and distance between the various parties and see
16
what role we can play in helping
minimize
or reduce those
17
distances and ultimately produce what we believe would be the
18
Agency recommendation on what is an appropriate modification of
19
the
State
Part
9
Regulation
that
makes
the
program
manageable,
20
and it’s at the same time accomplishes the legal objectives of
21
the program.
22
In moving in that direction we’ve
——
since the last
23
hearing, we’ve had meetings with the proponents.
We’ve had
24
face-to-face
meetings
with
the
representative
of
Illinois
25
Keefe Reporting Company
1
Environmental
Regulatory
Group,
the
Illinois
Association
of
Waste
2
Water Agencies.
We had a conference telephone call with the
3
Illinois Coal Association.
And
our intent is to work with those
4
parties
and
any
other
parties
who
are
interested
in
trying
to
5
find the language of this petition
--
to modify the language in
6
this petition
to minimize potential conflicts and disagreements,
7
and
that
would
be
an
Agency
recommendation
to
the
Board
on
how
to
8
deal with this matter.
9
Several
parties
have
indicated
a
desire
to
continue
with
10
working with us after this hearing.
I think personally the
11
hearing in and of itself is going to be constructive and helpful
12
to the Agency in hearing the various perspectives and the degree
13
of difference between the parties.
And our attempts to fully
14
understand those differences and try to minimize those
15
differences to the extent we can minimize or eliminate those
16
differences, at least understand them well enough,
that we can
17
make a specific recommendation on the Board as to how to deal
18
with that.
And
that’s essentially a summary of where we are on
19
the process of my pre-filed testimony.
20
HEARING
OFFICER
TIPSORD:
Any
questions.
21
EXAMINATION
22
BY MR.
ETTINGER:
23
Q.
Just a couple.
Over the years how long
HAS
IEPA had the
24
NPDES
--
how long has IEPA been running the NPDES program in
26
Keefe Reporting
Company
1
Illinois?
2
A.
Approximately since the mid
‘80s.
3
Q.
What overall has been the trend of the public
4
participation on the permit hearing or on these permits?
5
A.
There was a minimal participation in the air
--
there
6
was minimal participation in terms of public interaction in the
7
early days.
It has progressively gotten better in I’d say the
8
last six or seven years.
I took a little stint and moved my
9
career from water pollution to air pollution from
‘91 to
10
approximately
‘97.
When I came back in
‘97
I noticed a major
11
shift in the way the NPDES was functioned and the extent of
12
public comment and public interaction and the need for more staff
13
time to address
it,
so it’s a significant increase.
14
Q.
And that to your knowledge picked up in like the last
15
five years,
last five or six years?
16
A.
As
I said I noticed my early years in water pollution
17
was
significantly
less
active
public
participation
role
in
18
permitting process than it was in my last six years in
19
involvement
with
it.
20
Q.
When did you
--
when did you leave and when did you come
21
back, I’m sorry?
22
A.
I believe
February
of 1991 I moved to the Division of
23
Air Pollution, and I believe I came back in 1996, perhaps 1997.
24
MR.
ETTINGER:
Okay.
I’m just going
--
I only brought, you
27
Keefe Reporting
Company
1
know,
I brought three.
I didn’t have
--
have any idea how many
2
to bring so
I
have an exhibit.
Should
I
present this
to you
3
or--
4
HEARING OFFICER TIPSORD:
Me.
5
MR. ETTINGER:
I will identify this on the record as a
6
letter dated December 27, 2002, from Renee Cipriano to Thomas
7
Skinner with an attached annual performance partnership——
I’m
8
sorry, Annual Performance Report for FY02 Performance Partnership
9
Grant.
I just had a couple of questions on this.
10
HEARING
OFFICER TIPSORD:
Before we proceed,
let’s go ahead
11
and admit it as an exhibit if there’s no objection.
Erin,
could
12
you get us some copies made?
We’ll get copies to everyone else.
13
If there’s no objection,
I’ll admit that as Exhibit No.
5.
14
Seeing none, that will be marked as Exhibit No.
5 and we’ll have
15
copies for everyone in just a minute.
Go ahead.
16
Q.
(By Mr. Ettinger)
Okay.
On page 29 of the report it
17
states in the center here a Program Output
10:
Status of all
18
delegates NPDES programs with regard to adoption for applicable
19
regulations and legal requirements
(Source:
End—of—year report)
20
Results:
All regulations for delegated NPDES programs are
21
current as Illinois law allows direct application of federal
22
regulations.
Did you have a lull in granting this language?
23
A.
I honestly can’t remember.
I certainly had a role in
24
the document.
That specific sentence I can’t remember.
28
Keefe Reporting Company
1
Q.
I got way ahead of myself.
What is this document?
2
A.
These are the program
commitments
that the Agency
makes
3
to submit to the EPA on an annual basis which is the basis for
4
our federal operating grants.
5
Q.
Okay.
And so the statement made the USEPA was that in
6
the view of this document, at least,
that current Illinois law
7
allows direct application of federal regulation?
8
A.
That’s certainly been my operating
premise.
9
MS.
TONSOR:
I think that
--
I’m Connie Tonsor.
I’m an
10
attorney with the agency and I have an appearance on file in this
11
matter.
I am familiar with that language and perhaps would be a
12
better person to have that question addressed to then Toby.
13
HEARING
OFFICER
TIPSORD:
In which case we’ll have you
14
sworn in,
please.
15
WHEREUPON:
16
CONNIE
TONSOR,
17
called as
a
witness herein, having been firstduly
sworn,
18
deposeth
and
saith
as
follows:
19
MS.
TONSOR:
Essentially Section 39B provides that the
20
Agency can fold into
permits
affluent limitations and other such
21
requirements
of
the
federal
rule
changes
before
we
actually
have
22
them
actually
folded
into
our
regulatory
set
up
here
in
Illinois
23
through a Board making or otherwise.
Because we can fold in the
24
affluent limitations and the other requirements from USEPA,
we
29
Keefe Reporting Company
1
are, in fact, consistent with the requirements.
Some of the
2
requirements
that
we
are
here
dealing
with
aren’t
required
of
the
3
State.
And there’s a distinction between that which is required,
4
for instance,
a change in categorical affluent limitations, and
5
that which
is
a
additional
item
for
public
participation.
So
I
6
am familiar with the language and that was run through me first;
7
and secondly,
that’s how that language derives.
8
MR. ETTINGER:
Okay.
That’s been helpful.
My question now
9
is those do you interpret that rule as applying to all of the
10
requirements of the NPDES program
--
all the requirement of the
11
NPDES program or just affluent limitations?
12
MS.
TONSOR:
I think if you look at the specific language
13
in 39B, it gives us permission to fold in the affluent and other
14
changes
that are required, and the other changes that are
15
required language it has to be
a requirement.
16
HEARING OFFICER TIPSORD:
And for the record, excuse me,
if
17
I could clarify the Section 39B of the Illinois Environmental
18
Protection Act?
19
MS. TONSOR:
Of the Illinois Environmental Protection Act.
20
I’m sorry.
21
MR.
ETTINGER:
So is it
--
is
it the Agency’s view that all
22
federal regulations regarding the NPDES program are directly
23
applied to State permitting under current law?
24
MS.
TONSOR:
It is the Agency’s view that the NPDES program
30
Keefe Reporting Company
1
with the grand delegation has been determined to comply with
2
federal law, so
a federal law is a living thing.
And since the
3
early 1980s when the program was delegated, many types of
4
affluent limitations and many types of regulations have changed.
5
We recently had concentrated animal feeding operations.
We can
6
regulate those operations because they’re, in many aspects,
a
7
definitional change of point source prior to actually having the
8
Board rulemaking on the books and that,
I think,
is what the
9
Agency means by that.
10
Q.
(By Mr. Ettinger)
Turning now to page 45.
It’s stated
11
here on Community Relations.
Number of and description then it
12
gives result NPDES-5.
Is that the number of public hearings that
13
were held on NPDES permits and FY-2002?
14
A.
That’s certainly it’s intern report the tracking of
15
those hearings that our mine
--
It’s certainly the point here is
16
to report on the NPDES permit hearings that the Agency held
17
consistent with the community relations tracking and
18
participation in those agencies.
19
Q.
So that’s the order of magnitude that we’re talking
20
about, a number of hearings that we had had in recent years on
21
NPDES permits?
22
A.
I believe that’s correct.
23
Q.
I
--
did
--
Has the Agency in your past re-noticed
24
permits when they felt
a change had to be made from what they had
31
Keefe Reporting Company
1
first
publicly
noticed?
2
A.
Yes, we believe we have the authority to go back to
3
another round of public notice if it is appropriate.
And on a
4
few instances in the past we have actually done that.
5
Q.
There’s more than a few instances, aren’t there?
6
A.
It’s certainly more than zero.
And your point is do we
7
when we feel it is appropriate,
yes, we do?
8
Q.
Yes,
sir.
9
MR.
HARSCH:
Roy Harsch on behalf of the Illinois
10
Association of Waste Water Agencies.
Following up on Albert’s
11
questions regarding the number of public hearings.
Could you
12
please provide for the record the number of requested public
13
hearings,
the number of public hearings, actually requests
14
granted themselves and held, the total cost for the public
15
hearings, expense of engineers,
attorneys fees,
court reporter,
16
travel, public notice for the last four physical years you
17
previously have discussed with the county.
18
MS. TONSOR:
The Agency doesn’t have any problem with
19
putting this information together and then submitting it on the
20
record.
It will take a little bit of time to gather all of the
21
cost information.
I think we can gather the information on
22
hearings held fairly quickly because I keep that information.
23
However, we have
——
we’ll have to go through files because we get
24
requests for hearings
that are often on a number of permits all
32
Keefe Reporting Company
1
in the same letter,
so we’ll just have to go through and just
2
look at the permits that we’ve noticed and gather together that
3
information,
so we have no problem putting this information
4
together.
It may take us a couple weeks to get it together.
5
MR. HARSCH:
Following up again on an earlier question, if
6
USEPA were to amend the minimal public hearing requirements, for
7
example,
to require a 90-day public notice period, would that be
8
a kind of change that you feel you could incorporate through
9
Section 39A?
10
MS.
TONSOR:
We would attempt to incorporate that if it’s
11
required of the
State to do so.
12
MR. HARSCH:
Understand.
13
MS. TONSOR:
It could have to be required of the State to
14
do so,
and we also go for required rulemaking with the record.
15
MR. HARSCH:
In the interim you would attempt to utilize
16
Section 39 if that was
a direct legal requirement that a state
17
would have to give that kind of public notice?
18
MS.
TONSOR:
Yes.
The time lines that we have now are
19
consistent with the required time lines for federal regulations
20
on State.
And
if
the
federal
regulation
changes
to
expand
the
21
time line, we can expand the time line.
22
CROSS
EXAMINATION
23
BY MR.
HARSCH:
24
Q.
Can you or Toby explain on the record are you aware of
33
Keefe Reporting Company
1
any
notices of deficiency from the United States Environmental
2
Protection Agency regarding the public notice public
3
participation provision of the NPDES permit program as
4
administered in Illinois?
5
A.
At this time I’m not aware that anybody has alleged
6
deficiencies.
My interaction in working with USEPA Regional
5
7
permitting staff and legal counsel leaves me with a great degree
8
of comfort that they feel our public participation program is
9
adequate and consistent with federal laws.
10
Q.
You would be aware of any such notices of deficiencies
11
if they noticed?
12
A.
Well,
if the notice of deficiency from USEPA,
yes.
If
13
it’s an allegation from an outside party to USEPA, typically if
14
that’s written communication,
I see it either directly from that
15
individual or Region 5 would forward that to the Agency.
16
Q.
And
that would occur in one of your monthly over-site
17
discussions?
18
A.
That would occur in some kind of an interaction
19
communication with IEPA,
yes.
20
Q.
Is it fair simplistic recital of the federal
21
requirements for public participation in the State’s NPDES
22
program that you have the opportunity
to provide public
23
assistance
——
to have an opportunity to provide public comment on
24
a proposed permit and the opportunity to request a public hearing
34
Keefe Reporting Company
1
to show the degree of public interest, and it is up to the
2
individual state director to make
a determination as to whether
3
or not a significant degree of public interest warrants holding
4
the pubic hearing?
5
MS. TONSOR:
Yes, there is discretion in whether you have
6
to hold a public hearing.
There’s no requirement that the public
7
hearing be held on each permit.
The language that’s used,
I
8
believe,
in both the federal and our state regulation is a
9
significant degree of interest.
Significant can be one request.
10
Significant can be 1,000 requests.
It just depends on the nature
11
of the request, and to some extent it depends upon the nature of
12
the permit which is up on notice,
so there’s no federal
13
requirement.
There’s currently not a state requirement that you
14
automatically go to hearing.
There’s a requirement that you have
15
comments.
At our hearings we usually allow questions.
Federal
16
hearings allow comments only.
So there’s a little bit of
17
distinction at that point.
18
Q.
(By Mr.
Harsch)
There currently is an ongoing
19
discussion as well as actually legislation that’s been proposed
20
to step up immediate V stricter in Illinois be present?
21
A.
I’m somewhat familiar with that.
22
Q.
More than somewhat
I think probably is accurate.
The
23
original request was for 27 million,
was it not?
24
A.
Our
estimate of the revenue that would be generated by
35
Keefe Reporting Company
1
the
fee
structure
in
the
original
language
that
was
sent
at
that
2
time Bill 1060 was approximately 26 plus million dollars.
3
Q.
That would be in addition to the six million dollars
4
that the Agency would currently utilize under the State’s
5
revolving loan plan?
6
A.
That would be the revenue generated under that bill
7
independent of other sources of revenue.
8
Q.
But that does not eliminate the continued use of the six
9
million dollars that the Agency would continue to utilize under
10
the State’s revolving loan plan?
11
A.
I don’t believe that bill addressed other sources of
12
revenue at all and utilization thereof.
13
Q.
Have the vast number of comments on NPDES permits and
14
request for public hearings originated from the proponents from
15
this proceeding for the last two years?
16
A.
I’m sorry.
I’m not sure
I understand your question.
17
Q.
In terms of the request for public comment on NPDES
18
permits and request for public hearings on permits that you’re
19
familiar with, have those originated from the proponents in this
20
proceeding?
21
A.
A significant amount of the public participation we get
22
in NPDES programs comes from organizations and individuals who
23
are either proponents or related to the proponents of this
24
proceeding, yes.
36
Keefe Reporting Company
1
MR. HARSCH:
Okay.
No further questions.
2
HEARING OFFICER TIPSORD:
Anything else?
Could you state
3
your name and who you identify for the record, please?
4
MR. KEADY:
I’m Frederick Keady.
I’m president of the
5
Vermilion Coal Company.
6
CROS
S EXAMINATION
7
BY MR.
HEADY:
8
Q.
I only have one question.
If a draft
permit
as issued
9
in compliance with the State and Federal Clean Water Act is
10
subjected
to public hearings and then is modified in a way that
11
is favorable to the comments that were received at the public
12
hearing, what benefit can possibly accrue from having additional
13
hearings?
14
A.
Well,
I don’t know how to speculate on that, but I guess
15
my response would be to the extent that there is
a significant
16
public interest and we decide that the public participation needs
17
to progress to the state of a hearing,
it’s obvious we’re looking
18
for
additional
information,
additional
basis to reassess any
19
challenged
or
questioned
conditions
in
terms
of
that
permit
and
20
as a result permit conditions do change.
To the extent that
21
they’re viewed in favor by one party or another is not objective.
22
Our objective is to get the permit right and apply the
23
regulations that are applicable,
at least,
the best way we have
24
to do that.
37
Keefe Reporting Company
1
Q.
Let me ask the question again in the form of an example.
2
The Agency issues a draft permit which is in compliance with the
3
law, you get two comments both of them from objectors, you
4
implement one comment and you don’t implement the other one?
5
A.
Okay.
6
Q.
What in the world benefit can come from having an
7
additional hearing?
Name one?
8
A.
Well, in your example my response,
again recognizing how
9
the system works and how we operate, we bring in all the
10
information, all the requests,
we digest them, we prepare a
11
written summary of those evaluations that explain how we react
12
and what our decision is to the extent that either party felt
13
like they didn’t get what they needed,
they
may
want to have
14
another opportunity to influence that permit.
From my
15
perspective the proper way for that to be is, under Illinois
law,
16
is to proceed to the next step which would be the appeal step,
17
not go back and do
the
prior step again.
18
Q.
That’s what this is all about, isn’t it?
It’s about
19
another bite at the apple?
Somebody’s sore because they didn’t
20
get their way or they only got their way partly, they don’t want
21
to take their ball and go home or go to appeal step?
22
A.
What this is about to me is to get public participation
23
procedures updated, clearly defined so that everybody
24
understands, particularly myself and my staff,
what the operating
38
Keefe Reporting Company
1
rules are and how we proceed in a fair and proper manner so
2
nobody’s rights are tarnished.
3
Q.
So with all do respect,
the Agency is funded by the
4
taxpayers,
the objectives for the most part are sloshing around
5
in foundation money, most of the people sitting in this room
6
here
--
7
HEARING OFFICER TIPSORD:
Excuse me.
You’re testifying
8
now.
I need to have you sworn in or put it in the form of a
9
question.
10
MR.
KEADY:
Okay.
11
Q.
(By Mr.
Keady)
If this rule is implemented,
doesn’t it
12
seem to be to get a process whereby we approach an option that
13
sympotically
(phonetic).
14
A.
We’ll, you’re speaking to a rule
--
15
Q.
If the objector gets half their wishes granted here,
16
they will never be satisfied?
17
A.
Again, my ultimate responsibility is not whether any
18
particular
individual
is satisfied that the Agency allowed
19
appropriate, proper, open to public participation and ultimately
20
took an action that was legally correct and sensible and also
21
functional.
I mean, in addition to our
--
my first objective is
22
to comply with the law.
My second objective is to make the
23
program work.
24
Q.
Yes.
39
Keefe Reporting Company
1
A.
And that’s my objective here today.
These public
2
participation rules have been proposed for some updating and
3
modification.
I’m not opposed to updating and modification and
4
modernization of that.
But I’m not yet ready to say there’s
a
5
specific set of words that
I think that the Agency should support
6
to make that happen.
I’m saying there is
a concept here,
this
7
hearing in particular,
is going help us at the Agency to
8
understand everybody’s perspective better and to help the Board
9
get right this kind of speculation.
10
MR.
HEADY:
You have my sympathy.
11
HEARING
OFFICER TIPSORD:
Any additional questions?
12
CROSS
EXAMINATION
13
BY MR. CALLAHAN:
14
Q.
Mike Callahan and two quick questions.
First,
I believe
15
appropriate to Connie considering her discussion, you indicated
16
that the current Federal Clean Water Act as well as state
17
regulation do not mandate public hearings but they do direct the
18
director to call for one if significant requests is extended,
is
19
that correct?
20
MS.
TONSOR:
Correct.
21
MR.
CALLAHAN:
What is the criteria currently used by the
22
Agency to grant a public hearing?
23
MS.
TONSOR:
I think the Agency looks as whether the
24
questions are,
in fact, something that is addressable through the
40
Keefe Reporting Company
1
permit process,
the comments at least due to the request for
2
public hearing.
And
secondly,
we do look at the nature of the
3
permit, whether it
is
a
controversial
permit.
And third, we’ll
4
look at the number and the nature of the request.
Although you
5
cannot say that one hearing request isn’t
a significant request,
6
there have been cases where we’ve had one of the requests of an
7
organization representing many,
so those are the basic rules of
8
thumb but they are
--
it is discretionary with the director.
9
MR. FREVERT:
Let me follow-up on that if I could.
Just
10
give you a specific example.
I’m aware of one permit in the
11
northern part of the state where there was
a multitude of
12
requests for a public hearing.
In reality my perspective and
13
staff’s perspective was that comments and questions to a great
14
extent came from misunderstanding of the permitting process and
15
what was being authorized in that case in lieu of honoring their
16
request for a public hearing.
We deterred that action and
17
scheduled a public meeting which is less burdensome to us.
18
We still had to put the same number of people in vehicles
19
and send them up there and go through the process but the
20
follow—up
work was not as burdensome.
In that case it was sort
21
of extended public comment, public outreach.
We identified those
22
issues so we can deal with them and actually help accomplish some
23
of their objectives external to the permitting process
24
themselves.
Ultimately we got many of those people to withdraw
41
Keefe Reporting Company
1
their request for hearings,
so the issue to withdraw for those
2
who did not have
a hearing request.
But we don’t automatically
3
pursue hearings in every instance, but I would offer that more
4
than half the time if there is a
--
most of the time if there’s a
5
credible issue at stake, we will honor the request for
a hearing
6
or follow that some other fashion that will lead to clarification
7
and we’ll withdraw that request for a hearing.
8
Q.
(By Mr.
Callahan)
I’d like to ask one other question
9
then also.
Goes back to the statement that you made under
10
Albert’s questioning a little earlier.
That there’s much, much
11
more public involvement in the process within the last five years
12
than there was presumably during the first 25 years.
This Clean
13
Water Act is 30 years old,
that’s what essentially what you said;
14
right?
15
A.
That’s my general perception,
yes.
16
Q.
And
you were involved in water pollution control,
as
I
17
recall pretty extensively, before you transferred here;
is that
18
correct?
19
A.
I spent approximately 20 years doing water work before
I
20
did air work.
21
Q.
Those first 20 years were fine.
During those 20 years
22
don’t you think we saw a tremendous water quality in this state
23
along with the activities in for funding the extensive grass
24
program, cutting requirements, the enforcement of requirements
42
Keefe Reporting Company
1
under the Clean Water Act?
2
A.
If you’re asking for a comment on the general assessment
3
of the overall program,
yes, I’m proud to say we’ve done a lot in
4
that period.
5
Q.
I would agree.
I would agree.
And it would appear that
6
NPDES permitting procedures are in place then afforded that, did
7
they not?
8
A.
They were certainly a piece and component of the program
9
that had a lot of waste water treated or eliminated,
yes.
10
Q.
And then if we were to turn around and look at
11
improvements and such things as parameter compliance issues,
such
12
of that in the last
5 or 10 years, how much relatively speaking
13
would you see then as compared to the first 20?
14
A.
Compliance rates,
I cannot give you statistics.
I can
15
sort of tell you kind of perceptually that the level of
16
professionalism
in
terms
of
treatment
plant
operators
and
people
17
out on the street that make these things work has greatly
18
increased.
Staffing of that industry is probably increased
19
compliance in that.
20
Q.
How many backlog permits do you currently have?
21
A.
I checked on that approximately a month ago.
We have
--
22
Individual permits we have over 2,000.
23
Q.
Over 2000 backlogged permits?
24
A.
No,
no, no let me finish, Mike.
There is a total
43
Keefe Reporting Company
1
population of 2,000 and about 50 to 2,100 to individual entities
2
covered by individual permits covered in Illinois.
There are
3
another 650 entities covered by general permits not counting
4
storm water permits.
In terms of application, either for renewal
5
of permits or some kind of a modification of that permit,
the
6
last
I checked three or four weeks ago there were approximately
7
1,000
applications
logged in that had not been processed yet.
8
Q.
Would it be safe to say that process
in of these permits
9
has occurred as a result of a lack of resources available?
10
A.
We sure would like to.
I sure would like to see NPDES,
11.
if that’s what you’re offering.
12
Q.
No,
that’s no
——
I’m worried about
——
I’m sure you
13
would.
Regrettably
I don’t know that my constituents would see
14
that.
The point I’m trying to make here is that these permits
15
obviously would have been issued if you had the staff time and
16
resource time to undertake them?
17
A.
Sure.
I don’t
--
I don’t want to belittle the issue.
18
Backlog is one of the biggest headaches we have in the program in
19
NPDES.
I think the reality program itself is much more
20
comprehensive
and
complex than it was 25 years ago.
Public
21
participation does demand more time and attention than it did
22
before.
I personally don’t think that’s
a bad thing except
23
people that do our analysis and write our permits are great
24
engineers and scientists, and sometimes their writing and
44
Keefe Reporting Company
1
communication
skill results in things slowing down.
People have
2
to learn as they come along.
Don’t characterize the Agency as in
3
anyway
trying to avoid full and open public participation.
4
That’s not our objective.
5
Q.
Oh,
no,
I would never make that
——
But your inclination
6
then is that the permit backlog is principally a function of
--
7
A.
New program requirements, both state and federal
8
requirements are much more comprehensive.
State affluence
9
standards,
federal categorical treatment standards, you got
10
requirements to do water quality analysis and determine potential
11
to proceed water quality standards and follow-up on permit
12
limitations to avoid that.
13
For new and expanded things we’re doing a more
14
comprehensive, more sophisticated post anti—degradation issues.
15
Public participation does indeed require more time and effort and
16
sophistication so there’s a whole cadre of things
that lead to
17
the fact that NPDES program is a bigger workload than it has ever
18
been with the same population than we indeed would serve.
19
HEARING OFFICER TIPSORD:
Anything else?
20
MR.
ANDES:
I just have one quick question.
21
CROSS
EXAMINATION
22
BY MR.
ANDES:
23
Q.
Toby, the question with regard to
a particular provision
24
in the petition which is a change in 309.146,
it would be a new
45
Keefe Reporting Company
1
Section A5 concerning monitoring requirements?
2
A.
Okay.
If I look for it, I’ll answer the question.
3
Q.
Is it your understanding that that language is verbatim
4
from the federal regulations?
5
A.
309.146 A6.
6
Q.
A5.
7
A.
A5.
It’s possible.
I can’t
--
I can’t honestly say I
8
remember that exact language on particular
CFR
but I’m not saying
9
--
I’m telling you I don’t.
10
Q.
I believe it is.
But my question is, concerning how
11
this would affect current Agency policy, as
I understand current
12
Agency policy,
tell me if this is correct,
there are some
13
situations where the Agency,
rather than putting detail
14
monitoring requirements into
a permit, will instead require the
15
discharger to
submit
a monitoring plan;
is that correct?
16
A.
That is to allow a monitoring plan or some kind of a
17
special study that would seem to a follow-up the treatment
18
requirements on reporting.
I believe you’ll find some testimony
19
on my behalf to that effect in the prior year.
20
Q.
Would it be your understanding that inserting this
21
language would change that practice or would you still be able to
22
do that?
23
A.
I don’t believe this ties our hands and specifies the
24
date of permit issuance.
We cannot include a condition that
46
Keefe Reporting Company
1
requires some study or action that would ultimately lead to
2
another condition or requirement within the operation of that
3
permit.
It’s certainly my hope that’s the intent.
The program
4
cannot function if there wasn’t that latitude to use of the NPDES
5
program to actually derives studying,
planning,
design,
6
construction activities,
other things appearing about future
7
improvements.
8
MR.
ANDES:
Thank you.
That’s all
I have.
9
HEARING OFFICER TIPSORD:
Anything else?
10
RECROSS
EXAMINATION
11
BY MR.
ETTINGER:
12
Q.
I have one question.
With regard to the situation in
13
which the Agency decides if further studies or something is
14
necessary that is tied on the monitoring,
does the Agency then
15
allow the public to comment on monitoring the proposed as
a
16
result of those further studies?
17
A.
That probably depends on the nature of those things.
18
This particular requirement and provisions
I know in some
19
instances we have done that.
I would say instances typically
20
where,
for instance, we require a compliance schedules,
and
21
design and installation of hardware or specific information to
22
get to that point of compliance that date of the future.
23
We don’t make those design plans as
——
we do not make those
24
plans and specs and designs and other documentation showing that
47
Keefe Reporting Company
1
the technical details of how you’re going to eliminate a plant
2
sewer overflow,
for instance,
within 18 months and things of that
3
nature.
4
Q.
You do not make that subject to public review now?
5
A.
At the present time we do not.
Now in some limited
6
instances
——
For instance, Metropolitan Water Reclamation
7
District
we reissued their permits possibly a year and-a-half go.
8
There was
a requirement in there that they develop a public
9
notification program to somehow notify interested parties upon
10
the rainfall that resulted in overflow so people understand that
11
there were overflows taking place.
12
We specifically require that they go to a public outreach
13
and public participation component themselves, and that’s why
14
they had to do that before the plan was viewed and finalized and
15
submitted.
16
Q.
Without regard to how you and I may construe this
17
federal provision,
the 122.4A, Requirements for Reporting and
18
Recording
--
122.4A the requirements for recording and reporting
19
of monitoring results applicable to State programs,
regardless of
20
how you and I may differ in our construction of that, provisions
21
you agree that that’s currently something that the agency is
22
attempting to comply with?
23
A.
I think so,
yes,
if
I understand your question
24
correctly.
48
Keefe Reporting Company
1
MR.
ETTINGER:
That’s
it.
2
MR.
ANDES:
Can
I ask one follow-up question on that?
3
Toby,
in instances where the Agency, for example, on a CSO issue
4
requires various studies
to be submitted as part of
a compliance
5
schedule,
are those studies put in the permit file
and
available
6
for public review?
7
A.
Yeah, after the fact.
I should mention that all the
8
information is available for public inspection,
sure.
9
MR.
ANDES:
Thank you.
10
MR. GIRARD:
I have one question for Toby.
How much time
11
do you need to complete your consultation with the various groups
12
involving this rulemaking and then put together comments
that you
13
file with the Board?
14
A.
Well, my lawyers may shoot me but I’m willing.
Yeah,
15
my intention is to have it done in three weeks or less.
We don’t
16
have any desire to drag this out.
We’ve got other workload in
17
addition to this.
We like to hone in what the real issues are,
18
get them resolved as best we can and get a recommendation to you
19
in less than a month hopefully,
three weeks.
20
MR.
GIRARD:
Thank you.
21
HEARING OFFICER TIPSORD:
Anything else?
22
MS.
PADOVAN:
Am I allowed to ask a question of someone
23
who’s already testified?
24
HEARING OFFICER TIPSORD:
Absolutely.
49
Keefe
Reporting
Company
1
MS.
PADOVAN:
I
have
question
for
the
first
gentleman
who
2
testified.
I
believe
that
was
Mr.
Hubbard.
3
MR.
HUBBARD:
Yes,
ma ‘am.
4
MS.
PADOVAN:
You
mentioned
in
your
comment
the
word
NIMBY
5
and
anybody
who
has
been
around
this
business
for
very
long
that
6
NIMBY
conjures
up
different
meanings
to
different
persons,
would
7
you
define
what
you
mean?
8
MR.
HUBBARD:
NIMBY,
not
in
my
back
yard,
and
basically
9
that
is
the
type
of
objection
that
frequently
is
not
a
technical
10
objection.
It’s
not
based
on
output.
It’s
simply
if
we
don’t
11
want
this
project,
it’s
frequently
characterized
by
such
things
12
as
a
personal
fear
for
family
and
the
individual’s
health,
13
property
values,
but
it’s
a
very
difficult
kind
of
objection
to
14
quantify
other
than
that
and
that’s
what
I
mean
by
NIMBY.
15
MS.
PADOVAN:
Thank you.
16
MR.
HUBBARD:
You’re
welcome.
17
HEARING
OFFICER
TIPSORD:
All
right.
Let’s
take
about
a
18
10-minute
break.
Be
back
on
at
11:30.
Get
everyone
a
little
19
chance
to
stretch
their
legs.
Thank
you.
20
(A short break was taken.)
21
HEARING
OFFICER
TIPSORD:
Okay.
We’re
going
to
start
next
22
with Illinois-American Water Company.
Mr. Mark Johnson.
Can we
23
have you sworn in, please.
24
WHEREUPON:
50
Keefe Reporting Company
1
MARK
JOHNSON,
2
called as
a witness herein, having been first duly sworn,
3
deposeth and saith as follows:
4
HEARING OFFICER TIPSORD:
If there’s no objection,
we’ll
5
enter Mr. Johnson’s testimony as Exhibit No.
6.
Seeing none,
6
we’ll mark that as Exhibit No.
6.
Thank you.
If you would like
7
to come around.
8
MR.
JOHNSON:
Yes, my name is Mark Johnson.
I’m vice
9
president of engineering for Illinois—American Water Company, and
10
I have with me today Mary Sullivan who is our associate corporate
11
counsel.
Illinois—American Water Company provides water and
12
waste water service to 27,000 water customers
and
30,000 waste
13
water customers in 124 communities in Illinois from Cairo to
14
Chicago.
15
As mentioned other detail comments have been provided and
16
I’ll just summarize the major points in our comments.
17
We believe that administrative proposals are generally
18
acceptable.
I guess our major concern is that in some of the
19
proposals there are no definitive end points of time lines
20
specifically with comment periods and we would like to see some
21
more definitive end points to the proposed comment periods.
22
Suggesting maybe the initial comment period be 60 days,
and if
23
the record needs to be reopened, perhaps the comment period
24
should be set at 30 days.
51
Keefe Reporting Company
1
The
way
the
proposed
rules
are
written
they
seem
to
be
2
fairly
open—ended.
Our
business
involves
the
collection,
3
treatment
and
distribution
of
codable
drinking
water
and
the
4
collection
and
treatment
of
domestic
waste
water,
and
it’s
the
5
treatment
portion
of
our
business
that
is
of
concern.
6
Whenever we build a new water or waste water treatment
7
facility,
these facilities generate waste and we have defined
8
solutions to get rid of the waste,
and we obviously believe in
9
the public participation process.
In fact,
we have
a prime
10
example where public participation resulted in a unique solution
11
to the discharge of waste from a water treatment facility and
12
that has to do with our Alton Treatment Facility where we came up
13
with the suspended solid straightening program which is now being
14
adopted by USEPA as a model.
That would not happen if we did not
15
have public participation.
16
But a lot of times we are in a position where we need to
17
get these facilities in service quickly to solve public health
18
situations.
And it would be desirable to have, you know,
19
definitive time lines for NPDES process to work its way through
20
so that’s why we’re suggesting that maybe the comment period
21
needs to be extended a little bit to allow that to happen and
22
that essentially concludes our comment.
23
HEARING OFFICER TIPSORD:
Thank you.
Any questions?
24
EXAMINATION
52
Keefe Reporting Company
1
BY
MR.
ETTINGER:
2
Q.
I really don’t have much.
I just have a question.
You
3
said if the record must be reopened,
the extended comment period
4
should be for 30 days,
is it your understanding that under
5
current procedures IEPA can reopen the records?
6
A.
Well, it was our interpretation of what was proposed
7
there
was
an
open—ended
reopening
period,
but
I’m
not
certain
8
what the existing rule is for the existing rules for the Agency.
9
MR.
ETTINGER:
Thank
you.
That’s
all.
10
HEARING
OFFICER
TIPSORD:
Anything
further.
Thank
you
very
11
much.
Next we have Roy M.
Harsch.
Could we have you sworn in
12
please.
And if there’s no objection we will mark Mr. Harsch’s
13
testimony
as Exhibit No.
7.
Seeing none, will be marked as
14
Exhibit No.
7.
Go ahead.
15
WHEREUPON:
16
ROY
M.
HARSCH,
17
called
as
a
witness
herein,
having
been
first
duly
sworn,
18
deposeth and saith as follows:
19
MR.
HARSCH:
And brief summary, the Illinois Association of
20
Waste Water Agency is an association made up of sanitary
21
districts and municipalities that operate publically on treatment
22
works and some privately owned treatment works throughout the
23
state of Illinois.
24
Essentially 1W
--
IAWA believes that the proponents have
53
Keefe Reporting Company
1
not
carried
their
burden of showing why this rule change is
2
necessary.
We’ve heard testimony today that,
in fact, there are
3
no notices of inadequacies by USEPA.
We are concerned about the
4
re—write of a number of the regulations that seem to add
a new
5
level of bureaucratic requirements
to permit issuance that will
6
translate in additional time delay, additional staff demands, and
7
additional cost.
We are also concerned about the
——
what amounts
8
to under the regulation
--
draft
regulation
as
written,
the
9
opportunity for essentially a never—ending set of public comment
10
on opportunity for public hearing.
11
We are thankful that the Illinois Environmental Protection
12
Agency has agreed to step in and attempt to re-write the
13
regulations incorporating what we all have
——
members have been
14
experiencing for the past 25 years of the Agency permit issuance,
15
and we have, in fact, met with representatives of the Agency and
16
reviewed the initial draft and will be doing so in the next
17
several weeks.
18
We look forward to working with the Agency,
the other
19
stakeholders and the other proponents in attempting to come up
20
with hopefully a workable draft that will eliminate some of these
21
unnecessary burdens, bureaucratic burdens
that we think are in
22
the present draft and eliminate the essentially second and third
23
bite of the apple for public additional
--
public comment and
24
public hearings that we don’t think are necessary.
54
Keefe Reporting Company
1
This
is
all
coming
at
a
time
when
Illinois
has
a
budget
2
crisis.
We’re looking at requests
that would mean substantial
3
amount of fees if enacted by the legislature for these publicly
4
owned treatment works.
27 million dollars is a figure that Toby
5
mentioned this morning.
A good portion of that would have to be
6
paid by the municipal dischargers that are required to obtain
7
NPDES permits,
so we believe that the proponents of this
8
regulation have done an admirable job of raising their public
9
comments, and we’ve seen more and more involvement.
10
We’re not opposed to that involvement under permits where
11
they truly have points to raise and questions be made on NPDES
12
permits or draft permits.
Sometimes we question the tactic that
13
this seems they’re making public comments and slowing down permit
14
issuance because they maybe, in fact
——
individuals may be
15
opposed to new growth in an area.
But
--
And that’s really what
16
the part is the genisis for some of our objections to adding
17
additional
procedural
and
hearing
requirements
that
appear
to
be
18
——
have no boundaries, and we’re hoping
——
the
draft
that
I’ve
19
seen from the Agency cures some of those problems and we’re
20
hopeful that final draft will as well.
Thank you.
21
HEARING
OFFICER
TIPSORD:
Any
questions.
22
EXAMINATION
23
BY MR. ETTINGER:
24
Q.
I just have a couple.
That will be useful to all of us
55
Keefe Reporting Company
1
have a
——
You have
a lot of back ground in working on these
2
regulations don’t you, Mr. Harsch?
I’m sorry?
3
A.
Yes, I’ve been involved since the inception and current
4
draft of the
--
of what are the
current
NPDES
regulations
that
5
are in issue in this proceeding.
6
Q.
When were those written?
7
A.
They were originally drafted as a re-draft of the
8
proposals that were filed by the Illinois Environmental
9
Protection Agency.
They were re-drafted in the summer, spring,
10
late summer of late 1974 and ultimately adopted by the Board in
11
--
August 29th and September 5th of
‘74.
12
Q.
When were they last substantially revised?
13
A.
They basically haven’t been.
I would be
--
14
MR.
ETTINGER:
Thanks.
I have no more questions.
15
A.
And we have no objection to the
--
if the Agency feels
16
that if a re-write of the regulations modernizing them are in
17
order,
we just question the current proposal.
18
MR.
HUBBARD:
One question
to, Mr.
Harsch,
the fact that
19
rules haven’t been rewritten for 10,
20,
30 years,
does
that
20
necessarily make them bad rules in any way?
21
MR.
HARSCH:
No,
it does not.
22
MR. ETTINGER:
And
you agree to the fourth amendment?
23
(Laughter.)
24
HEARING OFFICER TIPSORD:
Anything further?
Thank you,
56
Keefe Reporting Company
1
Mr.
Harsch.
At this time could we go off the record for just a
2
second.
3
(A discussion was held off the record.)
4
HEARING
OFFICER
TIPSORD:
We
have
four
people
who
have
5
signed up to testify.
Fredric Keady, president of the Vermilion
6
Coal
Company.
We’ll
start
with
you.
Can
we
have
you sworn in,
7
I’m sorry.
8
WHEREUPON:
9
FREDRIC
HEADY,
10
called
as
a
witness
herein,
having
been
first
duly
sworn,
11
deposeth
and
saith
as
follows:
12
MR.
HEADY:
My
name
is Fredric Keady.
I’m the president of
13
Vermilion
Coal
Company
and
chairman
and
chief executive officer
14
of
Iron
Carbide
Technologies which is the apparent company of
15
Vermilion.
The
Vermilion
Coal
Company
is
the
principal
lessor
to
16
Black Beauty Coal Company in the matter of the Vermilion growth
17
permit which was the subject of the
--
which led to this hearing.
18
Our company is
-—
owns
in excess of 200 million tons of
19
coal
in
Illinois.
Outright
we
have
100
billion
cubic
feet
of
20
natural gas in application.
We have 3,000 acre feet of fresh
21
water
in
Illinois
underground,
and
we
own
the
intellectual
22
property
rights
to
the
Iron
Carbide
process.
What
we
do
is
we’re
23
project developers.
All of our projects are given,
in one sense
24
or another,
in attempt to respond to and improve environmental
57
Keefe Reporting Company
1
values.
The
body
of
coal
that’s
subject
to
the
Vermilion
growth
2
permit,
and the previous
permit,
was the Viola mine.
Both were
3
acquired
and
promoted
by
us
and
developed
to comply with the acid
4
rain
rule
of
the
Clean
Air
Act
Amendments
of
1990, and they have,
5
in fact,
fit that market as well.
6
We’re
disappointed
in expending a great deal of money and
7
effort
to
respond
to
this
perceived
environmental
need
to
8
essentially have these permits held up by what appeared to us to
9
be
technicalities.
Other
projects
that
we
have
under
development
10
include the projected underground hydroelectric storage program,
11
also in Vermilion County, which could have the capability to
12
store energy from winds or other unconventional projects so that
13
it could be sold at higher than the kinds of prices we want to
14
receive.
15
One of the problems with wind power,
it gives you power
16
when you don’t need it and it doesn’t give you power when you do
17
need it.
The potential capacity of this problem is about 4,000
18
megawatts, so about equal to four nuclear power plants.
19
Let’s talk what we’re here today to talk about these
20
proposed regulations.
I’ve been accused of being a lawyer in the
21
past but I’m not.
I’m just a business man.
So what we try to do
22
is put these projects together with investors in a way so that
23
they will appeal to some perceived demand,
again,
all of which I
24
said are environmentally driven and hopefully make some money in
58
Keefe Reporting
Company
1
the end.
2
I
believe
that
we
all
know
that
if
we
were
to
rank
the
3
sources
of
water
pollution
in
Illinois
today,
agriculture is at
4
the top of the list generating most of the water pollution.
5
Second
is
municipalities,
mining,
oil
and
gas
and
manufacturing
6
generate
a relatively small fraction of total water pollution.
7
We can argue about what that fraction is but I don’ t think anyone
8
can disagree with these rankings.
Nevertheless, because mining
9
and manufacturing are primarily point sources, they tend to be
10
the most heavily regulated and that’s not
--
that’s not in itself
11
bad.
Point sources tend to be easier to regulate and more
12
cost-effective than distributing sources.
13
However, what we have now is the point where most of the
14
regulatory attention is being paid to a relatively tiny fraction
15
of the total emissions water pollution.
Where it needs to be
16
paid is to some of the larger contributors primarily agriculture.
17
Now the petitioner for this rule change Prairie Rivers in
18
the late
‘90s correctly identified agriculture as a major
19
contributor to water pollutants.
They mounted a vigorous
20
campaign and appeared to drop it like a hot potato when they took
21
up to attack our lessee, Black Beauty, which I don’t understand
22
why they did that, but it was very puzzling.
23
I have some proposed
——
I have one more comment.
We can
24
discuss the cost of delay and uncertainty.
Yes, when a permit is
59
Keefe Reporting Company
1
being
disputed,
the
permit
holder may go ahead and discharge
2
pursuant to the
permit
that was lawfully issued by the Agency.
3
However,
the fact is that most of these projects are funded by
4
some sort of data project financing,
and to the extent that a
5
final permit is not in hand can adversely affect the ability of a
6
project developer to implement his project.
7
So to the extent an intervenor group has an agenda which is
8
larger than the particular permit that’s being disputed and we
9
can’t, you know,
I think we need to recognize here that there are
10
a lot of people that think coal is a bad thing, but we’re not
11
here to talk about global warming.
We’re not here to talk about
12
acid rain.
We’re not here to talk about other things.
But the
13
people who are belaboring us with these constant rule changes in
14
appeals are here for that purpose.
They have a larger agenda.
15
Our agenda is transparent.
16
I have some specific comments.
One, during the unfolding
17
of the Prairie Rivers matter,
I was very troubled by the ex parte
18
contact
that
had
existed
between
the
intervenors
and
the
agencies
19
and
other
government
bodies
that
provide
that.
Therefore,
I
20
believe all ex parte contact between the applicant,
the
21
intervenors,
the
Agency
and
other
involved
government
entities
22
should be logged, and any documents that arise from that and
23
notes of those contacts should be made part of the public file.
24
Second, along the lines of the questions
I had to
60
Keefe Reporting Company
1
Mr.
Frevert, when a permit
--
when
a
draft
permit
is issued and
2
public comments are taken and that permit is modified in
3
accordance
with
questions
raised
at
those
public
comments
in
a
4
direction that is favorable to the objectors,
those changes
5
should be exempt from any further comment requirements that might
6
arise out of this proposed rulemaking, otherwise what we’re going
7
to get is an acetonic approach,
a never—ending approach towards
8
an outcome and there never will be an outcome.
9
The only way we’re going to get an outcome in a situation
10
like that,
is for everybody to be so exhausted that they just
11
quit fighting.
And those of us who have a business to pursue,
12
customers to satisfy, financing to raise are also going to get
13
discouraged and we’re going to do something else.
14
My company was denied standing by the Illinois Pollution
15
Control Board in the Prairie Rivers appeal.
We had at least as
16
much writing on it as the applicant in financial terms.
The
17
mineral leasing acting provides that federal coal and minerals
18
have all the same rights and standings as the owner of the
19
surface property or fee simple property.
20
Therefore,
I would like to propose, and this may or may not
21
be in connection with these proposed rule changes, that the owner
22
of leased coal minerals,
oil and gas subject to draft
—-
any
23
draft permit that’s disputed should automatically be granted in
24
standing appeals.
61
Keefe Reporting Company
1
We had already mapped a path if the outcome had been any
2
different
than
it
had
been
for
a
federal
appeals
through
the
3
federal
courts
along
the
lines
of
Telesol
(phonetic)
versus
Road
4
Island, because what we had would have been serious regulatory
5
taking
amounting
in
the
lOs
of
millions
of
dollars
for
our
6
company.
Those are the extent of my comments.
Thank you.
7
HEARING
OFFICER
TIPSORD:
Thank
you.
Are
there any
8
questions?
Thank you very much.
Next we have Mr. Miller from
9
the
Prairie
Rivers
Network.
10
MR. MILLER:
At this point I’m interested in making a
11
public comment and not testimony.
I would be willing to make
12
time appropriate.
13
HEARING
OFFICER
TIPSOP.D:
All
right.
Margaret
Mitchell?
14
MS.
MITCHELL:
The
same
for
me.
15
HEARING
OFFICER
TIPSORD:
And
Wendy
Butler?
16
MS.
BUTLER:
The
same.
17
HEARING
OFFICER
TIPSORD:
Is
there
anyone
else
wishing
to
18
testify?
19
MR.
HARSCH:
I
have
question.
Are
these
organizations
in
20
which they’re speaking are they proponents in this?
21
HEARING
OFFICER
TIPSORD:
But
are
you
speaking
on
behalf
of
22
your organization or are you speaking on your own behalf?
23
MR.
HARSCH:
I
would be speaking on my
organization.
24
HEARING
OFFICER
TIPSORD:
So
you
will
be
speaking
on
behalf
62
Keefe Reporting Company
1
of the organization?
2
MR.
HARSCH:
Yes.
3
HEARING
OFFICER
TIPSORD:
Go ahead.
4
MR.
HARSH:
Who
are the proponents of this proceeding?
5
MR.
ETTINGER:
Prairie
River
is
Illinois
--
I
don’t believe
6
is——
7
MR.
HARSCH:
I
thought
you
identified
him
earlier.
8
MR.
ETTINGER:
I’m
sorry.
I
should
know
my
clients.
You
9
know, frankly
I
have this problem.
Somebody had
a
copy of the
--
10
HEARING
OFFICER
TIPSORD:
I
have the
--
I’m
sorry,
the
11
Statement of Reasons before me list the Environmental Law
and
12
Policy, Sierra Club,
Prairie Rivers Network and 225 individuals.
13
MR. ETTINGER:
Right.
Thank you.
14
HEARING OFFICER TIPSORD:
You’re welcome.
15
MR. ETTINGER:
So the only groups are Sierra Club, Prairie
16
Rivers Network and the guys that
--
the last of the petitioners
17
is ELPC, Environmental Law and Policy.
18
HEARING OFFICER TIPSORD:
Mr. Harsch?
19
MR. HARSCH:
It would seem to me that the proponent should
20
testify rather than make a comment.
21
MR. ETTINGER:
Well, actually the proponents did testify at
22
the last hearing.
Mark,
I don’t
--
You can either testify or
23
maybe we’ll just drop it.
What do you want to?
24
MR. MILLER:
Well,
it seems to be an issue.
I’ll decline
63
Keefe Reporting Company
1
to make a comment.
2
MR. ETTINGER:
Beth was here for Prairie Rivers at the
3
first hearing and didn’t testify.
4
HEARING
OFFICER
TIPSORD:
That’s
correct.
Mr.
Miller
could
5
make
a
statement on behalf of himself,
I
think.
6
MR.
HARSCH:
That would be fine.
7
HEARING
OFFICER
TIPSORD:
Would
you
like
to
do
that?
8
MR. MILLER:
I will do that.
9
HEARING
OFFICER
TIPSORD:
Do
you
have
any
objections
to
the
10
others?
Mr. Miller,
this is not sworn testimony.
This is on
11
behalf of Mr. Miller himself and will not be subject to
12
cross—examination.
13
MR.
MILLER:
Thank you,
Board.
I have been working for the
14
proponent
for
four
years,
and
as
a
person
I
would
say
the
15
observation
about
the
Clean
Water
Act
and
participation
is
that
16
it’s critical to meet the goals of Clean Water Act.
Those goals
17
are clean,
healthy, fishable, unchemicaled waters.
Often our
18
members,
members
of the public, who live in an area of proposed
19
or expanded discharge have raised issues and observations.
20
Those observations are critical for the Illinois EPA to
21
hear because they cannot be present to be knowing of what the
22
conditions are in a water pod, stream,
lake, whatever.
The
23
proposed
rules
will ensure that the public will have a fair
24
opportunity
for
involvement.
The
public
should
also
fully
64
Keefe Reporting Company
1
understand how they can participate as
members
of the public.
2
This
is
something
that
is
difficult
to
do
without
--
without some
3
guidance.
And all the information that is necessary to ensure
4
that
the
permit
is
protective
of
water
quality
in
their
local
5
stream or water bodies is also difficult to ascertain without
6
some type of stated information.
This is what we believe that
7
the
proponents
are
seeking.
8
I’d like to add that behind the first three rows of
9
professional
suits
there
are
some
interesting
individuals
who
10
might
find
this
fairly
intimidating
to
come
up
and
make
a
public
11
comment.
There
are
a
number
of people
who
are
interested
in
12
becoming involved and making sure that their waters are clean and
13
healthy
to
use
for
drinking
water,
to
fish
or
swim
in,
to
paddle
14
or canoe.
It is difficult for them to attend a time of day like
15
this a subtle
--
a subtle change of the proceedings but makes it
16
difficult
for
normal
people
to
voice
the
opinions.
And
I
really
17
appreciate
the
opportunity
that
I
have
to
be
here
to
represent
18
some of those people.
Thank you very much.
19
HEARING
OFFICER TIPSORD:
Thank you.
Ms. Mitchell.
20
MS.
MITCHELL:
Margaret Mitchell.
I want to thank you for
21
the
opportunity
to speak.
As a citizen, American citizen, born
22
here in the state of Illinois, living in the state of Illinois,
23
I’m proud of my state.
And we heard in this room today that
24
public influence makes a difference and kind of what we’re
65
Keefe Reporting Company
1
talking
about
here.
And
how
it
makes
a
difference
one
way
or
the
2
other,
who wins,
loses, whatever in cases of public hearings,
3
it’s important that the public is heard.
We do make a
4
difference,
but
we
need
a
channel
and
opportunity
to
speak.
And
5
thank you for letting me speak today.
6
HEARING
OFFICER
TIPSORD:
Thank
you.
Ms.
Butler;
is
that
7
correct,
B-U-T-L-E-R?
8
MS.
BUTLER:
Yes.
I’m Wendy Butler and I’m with Illinois
9
Environmental counsel.
I just wanted to make a statement that
10
our
organization
places
great
importance
on
public
participation
11
in
the
permit
process,
and
we
do
believe
that
public
12
participation
is
essential
to
open
-—
to an open process which
13
provides
critical
information
to
the
public
and
allows
the
14
response
concerned
in
affected
citizens
to
respond
to
proposed
15
permit
actions.
16
THE
COURT:
Thank you.
Is there anyone else who would like
17
to make a comment on the record.
Mr. Callahan?
18
MR.
CALLAHAN:
Well,
I’ve
been
in
involved
in
this
business
19
for approximately 30 years.
And as Toby and
I
indicated,
this
20
morning
he
and
I
jointly
have
seen
quite
an
improvement
in
the
21
water quality of
--
of our state.
22
One of the things that
I would certainly want to dispel
23
here this morning is the fact that there is any reservation about
24
involvement
of
public
in
these
proceedings.
As
example,
on
66
Keefe Reporting Company
1
behalf
of
myself
representing
the
counties
of
Bloomington
and
2
Normal,
I
get
no
pay
bonus
and
I
get
no
annual
benefit.
I
get
no
3
compensation whatsoever over minimizing the extent of our
4
regulation in terms of bringing in the plant without any
5
compliance problems.
I work for the public in my community and
I
6
think that’s an issue that is frequently mentioned in proceedings
7
such as this.
8
The
people
that
I
represent
are
the
public.
There
are
many
9
venues for this public to comment, not the least of which is
10
frequently overlooked.
At this level is the fact that we have
11
monthly Board meetings in our community.
There is an opportunity
12
for concerned people in the area to appear
and
express
their
13
concern to our Board members appointed which there’s probably an
14
opportunity to get a lot more done with a great deal less
15
litigation than there is in this venue.
16
What we’re concerned about
is
a
streamlined
permit
issuing
17
procedure whereby we protect the waters of the State as we’re
18
required but that we’re not needlessly wasting Agency personnel
19
time for hearings that may or may not be appropriate under a
20
given issue.
21
As
I sat here this morning and questioned,
I didn’t get a
22
set of criteria that the Agency is using to determining whether
23
or not a request is valid,
and I only heard of one hearing
24
request that had been turned down and that had been turned into a
67
Keefe Reporting Company
1
public hearing.
It’s an issue of public money,
of cost and of
2
expediency in doing our business,
and
I
share concerns with the
3
gentleman from the coal company.
What’s your name,
sir?
4
MR.
KEADY:
Keady.
5
MR.
CALLAHAN:
Of additional agenda that may not be
6
associated with some of these hearing requests.
That’s basically
7
the extent of the comments I have.
8
HEARING OFFICER TIPSORD:
Thank you, Mr. Callahan.
If we
9
could go off the record for just a second.
10
(A discussion was held off the record.)
11
HEARING OFFICER TIPSORD:
I want to thank everyone for
12
attending today.
As you know there’s a pending motion for the
13
Pollution Control Board to set a third hearing,
so at this time I
14
would ask that within the next week if all interested parties
15
submit to me either by E-mail or phone or personally a list of
16
potential days for a third hearing, if the Board orders a third
17
hearing,
or in the alternative potential dates for closing of a
18
comment period in this rulemaking.
Mr. Harsch?
19
MR.
HARSCH:
I have a question.
What type of advance
20
notice length of time would you be required in your hearing
21
officer order?
22
HEARING OFFICER TIPSORD:
We’ll need at least 30 days to
23
notice the hearing.
Actually a little bit more than that.
We
24
will have to publish,
45 days.
45 days before we can at best
68
Keefe Reporting Company
1
properly schedule a hearing after that meeting so at least two
2
weeks before we rule on it.
Anything further?
3
MR.
GIRARD:
I just like to thank everyone for all the time
4
and effort that they vested in this rulemaking proceeding so far
5
and the Board does appreciate that and we will look at everything
6
very carefully and look forward to seeing where we go from here.
7
Thank you.
8
THE
COURT:
Thank you very much.
I
appreciate
your
time
9
and,
as
I say, you’re welcome to use this room for as long as you
10
need.
Thank you very much.
We’re off the record.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
69
Keefe Reporting Company
STATE OF ILLINOIS
COUNTY OF FAYETTE
CERTIFICATE
I, BEVERLY S.
HOPKINS, a Notary Public in and for the
County of Fayette, State of Illinois,
DO HEREBY CERTIFY that the
foregoing 69 pages comprise a true, complete and correct
transcript of the proceedings held on the 2nd of April,
A.D.,
2003,
at the Illinois Pollution Control Board,
600 South Second
Street, Suite 403,
Springfield, Illinois,
Illinois,
In The Matter
of: Proposed Amendments
to: Public Participation Rules in 35 ILL.
Adm. Code Part 309 NPDES Permits and Permitting Procedures,
in
proceedings held before Hearing Officer Marie Tipsord, and
recorded in machine shorthand by me.
IN WITNESS
WHEREOF
I have hereunto set my hand and affixed
by Notarial Seal this 8th day of April, A.D.,
2003.
~
BEVERLY S HOPKINS
~
Beverly
S. Hopkins
~
~TARY
pu~uc
8TATE O~
~
~COMM~S~ON
~xpa~BtO1/2~IO8
~
Notary Public and
Certified
Shorthand
Reporter
and
Registered Professional Reporter
CSR License No.
084-004316
KEEFE REPORTING
COMPANY
70
Keefe Reporting Company
A
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agency
10:12,15
amend
14:3 33:6
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ability 60:5
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9:11
appeared 58:8
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23:6 55:16
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56:22
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associate 51:10
abolish 23:23
addition 3:11,12
17:2,5,21
20:10
amendments
1:6
appearing 47:6
associated 68:6
abolished
12:10
5:6 6:18 36:3
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appears 6:15
association 3:20
about 9:10,20,20
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ammunition
14:7
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10:9
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10:10 28:18
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attached 7:8,9
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amounting 62:5
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amounts 54:7
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57:24
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16:1
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65:14
accomplish
adequate
15:13
agenda 60:7,14
and-a-half 48:7
applied 20:15
attending 68:12
41:22
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30:23
attention 44:21
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ago 43:21
44:6
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apply 37:22
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25:20
70:13
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29:3 67:2
applying 30:9
attorney 29:10
accordance
8:21
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agree 22:17
43:5
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appointed 3:2
attorneys 32:15
61:3
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37:21 38:14,19
67:13
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administrative
56:22
44:3 47:2 57:24
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5:16
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according
16:24
accrue 37:12
11:11,22
24:9
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54:12
answer 46:2
65:17 69:5,8
authorized 41:15
accurate 35:22
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agriculture 59:3
anti.degradation
approach 39:12
automatically
accused 58:20
admirable 55:8
59:16,18
45:14
61:7,7
35:14 42:2
acetonic 61:7
admissible 8:2
ahead
6:10 23:22
anxious 11:15
appropriate
21:4
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acid 58:3 60:12
admit 14:21
15:3
28:10,15 29:1
anybody 7:6 34:5
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25:7 28:11,13
53:14 60:1
63:3
50:5
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admitted
6:9
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anyone 4:9,18
62:12 67:19
avoid 45:3,12
acknowledged
13:4 15:4
42:20
58:4
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approved
8:13
aware 8:21
12:20
4:20
adopted 8:22
Al
11:14
62:17 66:16
20:8
22:8 33:24 34:5
52:14
56:10
Albert 2:11
9:6
Anything 24:23
approximately
34:10 41:10
acquired 58:3
acre 57:20
adoption 28:18
Albert’s 32:10
37:2 45:19
47:9
27:2,10
36:2
A.D 70:9,17
act
10:15 23:9,10
advance 9:17
42:10
49:21
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42:19 43:21
a.m 1:13
30:18,19
37:9
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allegation
34:13
56:24
69:2
44:6
66:19
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40:16 42:13
adversely 60:5
alleged 34:5
anyway 45:3
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1:13 70:9
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advocate 7:3
allow 4:8,10
apparent 57:14
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64:16
affect 17:6,7
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appeal 6:16 8:19
area
55:15 64:18
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46:11
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acting 61:17
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allowed 7:1 13:7
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areas 22:24
32:2
38:17
42:9
41:16 47:1
affixed 70:16
39:18 49:22
16:13 17:7,10
23:10,14 25:14
50:8,18 56:1
actions 66:15
affluence 45:8
allows 4:10
17:11,12
19:3,6
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backlog
43:20
active 27:17
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28:21
29:7
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argument 20:19
44:18 45:6
activities 42:23
30:4,11,13 31:4
66:13
38:16,21
58:23
20:21,22
backlogged
47:6
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along 42:23 45:2
61:15
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61:6
43:23
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after 4:19 14:11
60:24
62:3
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around 39:4
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actually 11:15
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65:5
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29:22 31:7 32:4
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15:9
32:13 35:19
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16:10,13
41:22 47:5
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10:8
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41:4
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18:10,11,22,24
63:21
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43:5
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20:19 24:20
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17:1
22:12
26:2
31:18
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assigned
3:8,10
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26:13
30:3
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chairman 3:12,13
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complexity 15:15
56:13
68:6
60:18,20
54:5,21
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Code
1:8 3:5
compliance 10:5
basis 7:21
8:7
Beverly 1:20 70:6
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37:19
11:11,22 70:13
37:9
38:2 43:11
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20:6
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17:2
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43:14,19 47:20
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52:5 58:21
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come 16:12
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61:11
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change 12:23
27:20
38:6 45:2
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31:1
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68:2
19:6 30:4 31:7
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36:2,6,11
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17:18
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11:3
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68:23
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29:21
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45:21
47:10
19:2 21:1
24:14
27:12
34:23
31:5
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29:21 30:14,14
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41:21
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16:7,9
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26:2 40:18
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17:2,17 24:14
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52:20,22 53:3
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54:9,23 59:23
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38:3 41:1
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60:1,8
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circumstances
41:13 49:12
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15:17
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concludes 52:22
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bodies 60:19
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believe 3:13
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47:2
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19:18 20:3
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37:19,20 64:22
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40:14 46:10,18
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41:15,20
43:1
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46:23 50:2
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conjures 50:6
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believes 15:11
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67:4
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18:24
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57:6,13,14,15
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37:12
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considered 6:19
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29:8 31:14,15
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67:3
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Certified 70:21
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completely 8:9
consistent 10:12
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CERTIFY 70:7
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60:10
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25:15
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61:17,22 68:3
complex 44:20
20:13,15,24
2
Keefe Reporting Company
21:9 22:1,9
couple 3:16
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decide 37:16
developed 58:3
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42:21
60:16
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63:24
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unfolding 60:16
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25:14 26:4
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updating 40:2,3
voice 65:16
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turned 67:24,24
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Turning 31:10
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total 32:14 43:24
uncommon 24:9
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11
Keefe Reporting Company
63:23
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writing 4:5 44:24
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5044:1
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61:16
1991 27:22
51 2:19,23
16:18,20
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1996 27:23
532:20,23
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22:14 23:6,16
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57:19
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1:23
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15 2:18,22
worried 44:12
18 48:2
5 21:20 28:13,14
worth 6:22
1974 56:10
34:6,15
43:12
write 44:23
1980s 31:3
5th 56:11
12
Keefe Reporting Company
