1
1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD OF THE
STATE OF ILLINOIS
2
3
PEOPLE OF THE STATE OF ILLINOIS, )
4 )
)
5 Complainant, )
)
6 vs ) No. PCB 96-98
)
7 SKOKIE VALLEY ASPHALT CO., INC., )
EDWIN L. FREDERICK, JR., )
8 individually and as owner and )
president of SKOKIE VALLEY )
9 ASPHALT CO., INC., and )
RICHARD J. FREDERICK, individually )
10 and as owner and vice president of )
SKOKIE VALLEY ASPHALT CO., INC., )
11 )
Respondents. )
12
13
14 TRANSCRIPT OF PROCEEDINGS held in the
15 hearing of the above-entitled matter, taken
16 stenographically by Maria E. Shockey, CSR, before
17 CAROL SUDMAN, Hearing Officer, at the Libertyville
18 Village Hall, 118 West Cook Street, Libertyville,
19 Illinois, on the 30th of October, A.D., 2003, at
20 9:00 a.m.
21
22
23
24
L.A. REPORTING (312) 419-9292
2
1 A P P E A R A N C E S:
2
ILLINOIS POLLUTION CONTROL BOARD,
3 1021 North Grand Avenue East
Springfield, Illinois 62794-9274
4 (217) 524-8509
BY: MS. CAROL SUDMAN, HEARING OFFICER
5
6 OFFICE OF THE ILLINOIS ATTORNEY GENERAL,
188 West Randolph Street
7 20th Floor
Chicago, Illinois 60601
8 (312) 814-5282
BY: MR. MITCHELL L. COHEN
9 MR. BERNARD J. MURPHY
10
Appeared on behalf of the Complainant;
11
12 LAW OFFICE OF MICHAEL B. JAWGIEL, P.C.,
5487 North Milwaukee Avenue
13 Chicago, Illinois 60630
(773) 774-0814
14 BY: MR. MICHAEL B. JAWGIEL
15 - AND -
16 LAW OFFICE OF DAVID S. O'NEILL,
5487 North Milwaukee Avenue
17 Chicago, Illinois 60630-1249
(773) 792-1333
18 BY: MR. DAVID S. O'NEILL
19
Appeared on behalf of the Respondents.
20
21
22
23
24
L.A. REPORTING (312) 419-9292
3
1 I N D E X
2
3 OPENING STATEMENTS PAGE
4
By Mr. Cohen 6
5 By Mr. Jawgiel 14
6
7
8 WITNESS DX CX RDX RCX
9 MICHAEL GARRETSON 23
10 By Mr. Cohen
By Mr. Jawgiel 64
11
12 CHRIS KALLIS
13 By Mr. Murphy 114 205
By Mr. Jawgiel 165 210
14
15 DONALD KLOPKE
16 By Mr. Murphy 213 267
By Mr. Jawgiel 233 271
17
18 RICHARD JOHN FREDERICK
19 By Mr. Cohen 275
By Mr. Jawgiel 308
20
21
22
23
24
L.A. REPORTING (312) 419-9292
4
1 HEARING OFFICER SUDMAN: Good morning.
2 My name is Carol Sudman and I'm a hearing
3 officer with the Pollution Control Board.
4 This is the hearing for PCB 96-98, People
5 versus Skokie Valley Asphalt, Edwin L.
6 Frederick, Jr., and Richard J. Frederick.
7 It is October 30, 2003 and we are
8 beginning at 9:00 a.m. I will note for the
9 record that there are no members of the
10 public present. Members of the public are
11 allowed to provide public comment if they so
12 choose.
13 At issue in this case are the
14 allegations that respondents violated various
15 provisions of the Environment Protection Act
16 and the Board's regulations relating to water
17 pollution. The complaint concerns
18 respondent's facility in Grayslake,
19 Lake County.
20 You should know that it is the
21 Pollution Control Board and not me that will
22 make the final decision in this case. My
23 purpose is to conduct a hearing in a neutral
24 and orderly manner so that we have a clear
L.A. REPORTING (312) 419-9292
5
1 record of the proceedings. I will also
2 assess the credibility of any witnesses on
3 the record at the end of the hearing.
4 This hearing was noticed pursuant
5 to the Act and the Board's rules and will be
6 conducted pursuant to Sections 101.600
7 through 101.632 of the Board's procedural
8 rules.
9 At this time, I would like to ask
10 the parties to please make their appearances
11 on the record.
12 MR. COHEN: Madam Hearing Officer,
13 Mitchell Cohen, Assistant Attorney General,
14 representing the People of the State of
15 Illinois.
16 HEARING OFFICER SUDMAN: Thank you.
17 MR. MURPHY: Assistant Attorney
18 General Bernard J. Murphy, Jr., representing
19 the State of Illinois.
20 MR. O'NEILL: David O'Neill
21 representing the respondents.
22 MR. JAWGIEL: And Michael Jawgiel
23 representing the respondents as well.
24 HEARING OFFICER SUDMAN: Thank you
L.A. REPORTING (312) 419-9292
6
1 very much.
2 Would the People like to give an
3 opening statement?
4 MR. COHEN: Yes.
5 OPENING STATEMENT
6 BY MR. COHEN:
7 Madam Hearing Officer, Counselors,
8 beginning in December 1994 and continuing
9 through April 1995, the water in the Avon
10 drainage ditch had an oily sheen. The Avon
11 Fremont drainage ditch is a water of the
12 State that flows north past and not far from
13 the Skokie Valley Asphalt Company's site into
14 Third Lake, another water of the State.
15 The Skokie Valley Asphalt Company,
16 Inc., what used to be Liberty Asphalt, is
17 located in Grayslake, Lake County, Illinois.
18 When Skokie Valley Asphalt was in business,
19 it was owned and operated by respondents,
20 Edwin L. Frederick, Jr., who goes by Larry,
21 and his brother Richard J. Frederick.
22 Skokie Valley Asphalt or Liberty
23 Asphalt used to produce asphalt at the
24 Grayslake site. More recently before the
L.A. REPORTING (312) 419-9292
7
1 Frederick brothers sold their business, the
2 site was used for vehicle storage,
3 dispatching, and material storage. The
4 Frederick brothers ran an asphalt paving
5 business from the Grayslake site.
6 The area around the site is
7 farmland. There's also a residential area
8 and a nursery. There's no other industry,
9 factories or gas stations nearby. There's
10 just farm fields between the Skokie Valley
11 Asphalt site and the Avon drainage ditch.
12 In April of 1995, the Fredericks
13 discovered a drain tile that ran through
14 their property. The water in that drain tile
15 flowed toward the Avon drainage ditch. The
16 water in that drain tile also had an oily
17 sheen.
18 Finally, the Frederick brothers
19 contacted an environmental engineer. They
20 cut off the flow of oil to the Avon drainage
21 ditch, began looking for on-site sources and
22 solutions and are still in the process of
23 remediating the site in 2003.
24 You see, the water pollution event
L.A. REPORTING (312) 419-9292
8
1 alleged in the second amended complaint is
2 really the culmination of a long history of
3 environmental problems at the Skokie Valley
4 Asphalt site. The problems began many years
5 before, most dealing with water quality
6 issues. As a result, the Illinois
7 Environmental Protection Agency issued Skokie
8 Valley Asphalt Company a storm water NPDES
9 permit in 1986.
10 You're going to hear testimony
11 from Mike Garretson. He works for the
12 Illinois Environmental Protection Agency;
13 he has for over 20 years. He works for the
14 division of water pollution control
15 compliance assurance section. He will
16 explain about the compliance assurance
17 section, how they use NPDES permits and
18 discharge monitoring reports or DMRs.
19 Mr. Garretson has been with the
20 Illinois EPA long enough to know how this
21 system worked back in the '80s and early '90s
22 when Skokie Valley Asphalt was first issued
23 their permit. He was explaining Skokie
24 Valley Asphalt's DMR reporting requirements
L.A. REPORTING (312) 419-9292
9
1 and discharge concentration limits based on
2 their permit.
3 He will describe a number of
4 months when Skokie Valley Asphalt failed to
5 file any DMRs in two separate two-month
6 period where Skokie Valley Asphalt filed
7 identical DMRs. Except for the dates on the
8 DMRs, the scientific data was identical,
9 highly unusual.
10 Mr. Garretson will also testify to
11 a number of months where Skokie Valley
12 Asphalt reported excessive discharge
13 concentrations of total suspended solids in
14 their DMRs that they submitted to the
15 Illinois EPA.
16 You will hear testimony from
17 Chris Kallis. He works as a field inspector
18 for the Illinois EPA Bureau of Water. He's
19 been doing this for over 20 years too. He's
20 been inspecting the Skokie Valley Asphalt
21 site in Grayslake since the 1980s.
22 He's familiar with the
23 environmental history of the site, Skokie
24 Valley Asphalt's NPDES permit, and some of
L.A. REPORTING (312) 419-9292
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1 the events surrounding the late 1994, '95
2 water pollution incident causing the oil
3 sheen on the Avon drainage ditch.
4 In March of 1995, Mr. Kallis took
5 a sample of the effluent feeding into the
6 Avon drainage ditch and had it tested for oil
7 and grease concentrations. Don Klopke will
8 also testify. He too works for the Illinois
9 EPA and has for many years. He works for the
10 office of emergency response.
11 He'll explain why the office of
12 emergency response was involved in an
13 investigation at the Avon drainage ditch at
14 the end of 1994, 1995. He'll explain why
15 the USEPA, United States Environmental
16 Protection Agency, became involved in that
17 investigation. Mr. Klopke will also describe
18 his observations at the Avon drainage ditch
19 in 1995 and how Skokie Valley Asphalt
20 ultimately became involved in the clean-up of
21 the ditch.
22 As I mentioned earlier, Skokie
23 Valley Asphalt hired an environmental
24 engineer in April of 1995 after discovering
L.A. REPORTING (312) 419-9292
11
1 oil in a drain tile on their property. The
2 engineer's name is James Huff. He will
3 testify as well. The People expect Mr. Huff
4 to testify about how he was contacted by
5 Skokie Valley Asphalt, that a site visit was
6 scheduled but before his site visit, Skokie
7 Valley Asphalt called explaining that they
8 had discovered oil in a field tile that ran
9 through their property.
10 This discovery lead to a chain of
11 events that continues in 2003, for example,
12 the drain tile with oil in it was plugged so
13 it no longer flowed to the Avon drainage
14 ditch. Skokie Valley Asphalt placed oil
15 absorbing booms in the Avon drainage ditch to
16 prevent the oil from flowing north into Third
17 Lake.
18 A leaking underground storage tank
19 was removed from the Skokie Valley Asphalt
20 site and other on-site areas were remediated
21 to remove oil contamination. Mr. Huff found
22 these other areas of contaminating after
23 learning about the history of the site from
24 the Fredericks and digging test pits. He
L.A. REPORTING (312) 419-9292
12
1 worked with and reported directly to the
2 Frederick brothers.
3 With Mr. Huff's help, Skokie
4 Valley Asphalt did apply to participate in
5 the Illinois EPA site remediation program
6 seeking a focused no further remediation
7 letter, not in 1995 when the oil was
8 discovered on site, it wasn't until 1998.
9 That leaves the respondents, Larry and
10 Richard Frederick. I already mentioned they
11 owned and operated Skokie Valley Asphalt
12 Company, 50/50.
13 They were responsible for the
14 whole operation. They both dealt with the
15 Illinois EPA and James Huff reports to both
16 of them. They both worked at the Skokie
17 Valley Asphalt site in Grayslake for decades,
18 that is, until 1998. In 1998, the Frederick
19 brothers dissolved their corporations and in
20 1998, the Frederick brothers sold their
21 business, including the site in Grayslake for
22 over
23 $8 million.
24 At the end of all the evidence, we
L.A. REPORTING (312) 419-9292
13
1 expect each of the respondents to be found in
2 violation of the Act and liable for all five
3 counts alleged in the second amended
4 complaint: Filing false reports, filing late
5 to renew their permit, failing to comply with
6 sampling and reporting requirements, water
7 pollution, and violating effluent limits.
8 At that time, the People of the
9 State of Illinois will ask this Board for
10 cease and desist orders against the
11 respondents, civil penalties, and all other
12 remedies under the law and relief the Board
13 deems appropriate.
14 HEARING OFFICER SUDMAN: Thank you.
15 Mr. Jawgiel, would you like to make an
16 opening statement?
17 MR. JAWGIEL: Yes, very briefly. But
18 I also would like to address when the --
19 HEARING OFFICER SUDMAN: The motions?
20 MR. JAWGIEL: Right, the motions.
21 HEARING OFFICER SUDMAN: Yes. Before
22 the People present their case, I would ask
23 that you --
24 MR. JAWGIEL: Renew those motions?
L.A. REPORTING (312) 419-9292
14
1 HEARING OFFICER SUDMAN: Yes.
2 MR. JAWGIEL: Okay. I just wanted to
3 make sure we're all on the same procedure;
4 that's all.
5 HEARING OFFICER SUDMAN: Yes. Thank
6 you.
7 MR. JAWGIEL: Thanks a lot.
8 OPENING STATEMENT
9 BY MR. JAWGIEL:
10 Counsels, Madam Hearing Officer,
11 what's missing from the opening statement of
12 the State is quite clear and it's glaring, it
13 really is. What the evidence won't show is
14 as much as important as what the evidence
15 will show.
16 And what the evidence won't show
17 in this case is very simple. The evidence
18 shows that anybody took the time out to take
19 a sample from the site of Skokie Valley and
20 match it to what was in the creek.
21 They're doing this clearly by
22 smoke in mirrors. Nobody whether it's
23 Mr. Kallis -- you'll hear him testify that he
24 didn't even look to see where this drain tile
L.A. REPORTING (312) 419-9292
15
1 ran. He didn't canvas the area for other
2 businesses that may contribute to this. He
3 doesn't know what's in the area at all.
4 You'll also hear from him in his
5 testimony when we called him in our case in
6 chief that he thought it was pure conjecture
7 that the oil was coming from Skokie Valley.
8 So we hear a lot about what the State says
9 they're going to prove but the key is they
10 can't prove that what was in that creek
11 actually came from somewhere on Skokie Valley
12 property. That's a very important issue.
13 With respect to the false filing
14 reports, with respect to that issue, the
15 Fredericks are not responsible. They are not
16 the permittees. The permittee in this case
17 is Skokie Valley. And if you find that
18 Skokie Valley was responsible for that, then
19 you'll also have to look at the circumstances
20 around that.
21 You have to realize that you'll
22 hear testimony both from Richard and Larry
23 Frederick who will state that they did all
24 the testing. They corrected the reports once
L.A. REPORTING (312) 419-9292
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1 they found out that there was some error,
2 clerical errors, in filing. You'll also hear
3 from Mr. Huff saying that there was no
4 environmental impact from those reports.
5 You'll also hear from Mr. Kallis
6 who will say in his testimony that it is his
7 procedure not to even take note of the
8 particular DMRs until maybe two or three
9 reports down the road that's showing elevated
10 levels.
11 But apparently, in this case we
12 have a situation where they seem to have
13 picked on Skokie Valley and they did so in an
14 untimely fashion. They waited on their
15 hands. They sat on their hands and then they
16 came years later and required these gentlemen
17 and Skokie Valley to defend themselves.
18 And you'll hear numerable times
19 during the course of this that a document is
20 no longer is existence, that people cannot
21 remember what was said, what was done, and
22 all that plays into the fact that the State
23 is trying to bring a case by delay and
24 sandbagging.
L.A. REPORTING (312) 419-9292
17
1 When we talk about the sampling
2 procedures, you're going to see again there's
3 no critique of how they took the sample.
4 Nobody has the opinion that the sampling was
5 done inappropriately. Nobody can tie in the
6 fact that there was actually damage that lead
7 into the waterways.
8 They'll tell you, oh, yes, well,
9 the Avon Creek leads into Grayslake and also
10 feeds into Third Lake, but there's no testing
11 that Grayslake or Third Lake was affected
12 whatsoever by this and you won't hear that
13 either.
14 At the close of our case, we will
15 request that the Board find in favor of the
16 respondents and we will seek our appropriate
17 remedies from there as well.
18 Thank you.
19 HEARING OFFICER SUDMAN: Thank you.
20 Before you have a seat, Mr. Jawgiel, would
21 you like to now address your motions?
22 MR. JAWGIEL: Sure. Thank you.
23 Just for the record, these motions
24 were presented in total two days ago, Madam
L.A. REPORTING (312) 419-9292
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1 Hearing Officer, is that correct?
2 HEARING OFFICER SUDMAN: I think it
3 was October 27.
4 MR. JAWGIEL: 27th? It's all a blur.
5 In total we have a motion in
6 limine. We also have various motions to
7 bar -- one motion to bar Mr. Ken Savage,
8 which apparently, Mr. Savage is not going to
9 be a witness here today or tomorrow if I took
10 the State's opening statement to be correct.
11 MR. COHEN: Correct.
12 MR. JAWGIEL: So we can set that
13 aside.
14 We do have a motion to bar or
15 limit the testimony of Mr. Klopke, a motion
16 to bar or limit the testimony of
17 Mr. Garretson, a motion to bar or limit the
18 testimony of Ms. Lavis, and apparently, she's
19 not testifying either, so we'll set this
20 aside.
21 So basically, we're down to our
22 motions in limine, which they're a series of
23 motions within --
24 HEARING OFFICER SUDMAN: Right. As I
L.A. REPORTING (312) 419-9292
19
1 had told you yesterday, I will admit those
2 into the record as if read. And my rulings
3 that I made in my hearing officer order on
4 October 28 will stand. I recall attaching
5 those, so that will all be in the record for
6 you, okay?
7 MR. JAWGIEL: Okay. Madam Hearing
8 Officer, we will be renewing objections as
9 evidence is provided to preserve our right of
10 appeal if this goes that far, but I think
11 we're obligated to do so. We don't mean to
12 be --
13 HEARING OFFICER SUDMAN: I mean, with
14 some lines I may ask you to make a continuing
15 objection just so that --
16 MR. JAWGIEL: That's fair enough.
17 HEARING OFFICER SUDMAN: -- we can
18 move things along.
19 MR. JAWGIEL: As long as the record is
20 clear on that issue.
21 HEARING OFFICER SUDMAN: Yes,
22 absolutely.
23 MR. JAWGIEL: We're not trying to
24 delay or by any means stretch this out.
L.A. REPORTING (312) 419-9292
20
1 Would you like me to submit this
2 to --
3 HEARING OFFICER SUDMAN: Yes, please.
4 MR. JAWGIEL: Those are the motions
5 that we are standing on. The ones that I've
6 redacted, I'll just take back to the desk.
7 HEARING OFFICER SUDMAN: Okay. Thank
8 you. These will be admitted to the record
9 and I will attach a copy of my October 28
10 hearing officer order to the back of these.
11 Are there anymore preliminary
12 matters that we need to discuss before the
13 People present their case?
14 MR. COHEN: I can't think of any.
15 HEARING OFFICER SUDMAN: Okay.
16 MR. JAWGIEL: Exclude witnesses, your
17 Honor, of -- exclude witnesses who are
18 nonparties to the testimony that's going to
19 be provided here. We would ask that
20 witnesses who are either not the Fredericks
21 or witnesses who are not the representatives
22 of the Illinois EPA be excluded from the room
23 from hearing other testimony.
24 HEARING OFFICER SUDMAN: I don't know.
L.A. REPORTING (312) 419-9292
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1 I mean, do you object to that?
2 MR. COHEN: I know that's normal
3 courtroom procedure. I don't know what the
4 Board does.
5 HEARING OFFICER SUDMAN: I mean, we
6 normally don't do that, but I don't have a
7 problem with it. I mean, you just have
8 one -- do you have any witnesses here who are
9 not --
10 MR. COHEN: Yes. We were planning to
11 call Mr. Garretson first and that would leave
12 Mr. Kallis in the room.
13 HEARING OFFICER SUDMAN: But
14 Mr. Kallis is not testifying; is that
15 correct?
16 MR. COHEN: He's going to testify
17 next.
18 HEARING OFFICER SUDMAN: Oh, he is
19 going to testify next.
20 MR. COHEN: Right.
21 HEARING OFFICER SUDMAN: Okay. All
22 right.
23 MR. COHEN: So you would ask
24 Mr. Kallis to be excused?
L.A. REPORTING (312) 419-9292
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1 HEARING OFFICER SUDMAN: Yes, please.
2 I would also like to note for the
3 record that Mr. Joel Sternstein is here from
4 the Attorney General's office. The People
5 did request that Mr. Sternstein be allowed to
6 sit in. I granted that request under the
7 condition that Mr. Sternstein did not
8 communicate with anybody involved in the
9 hearing.
10 If there is anyone here not
11 involved with the hearing, you may
12 communicate with them. You may also
13 communicate with me if you need to, Joel. So
14 with that warning aside, you may observe.
15 The People may present their case.
16 MR. COHEN: Thank you, Madam Hearing
17 Officer. Our first witness will be Mike
18 Garretson.
19 HEARING OFFICER SUDMAN: Would you
20 please swear him in?
21 THE REPORTER: Sure.
22 (Witness sworn.)
23
24
L.A. REPORTING (312) 419-9292
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1 WHEREUPON:
2 MICHAEL GARRETSON
3 called as a witness herein, having been first duly
4 sworn, deposeth and saith as follows:
5 D I R E C T E X A M I N A T I O N
6 BY MR. COHEN:
7 Q. Would you please state your name and
8 spell your last name for the record?
9 A. Michael Garretson, G-A-R-R-E-T-S-O-N.
10 Q. Mr. Garretson, where do you work?
11 A. I work for the Illinois Environmental
12 Protection Agency.
13 Q. And do you work and live in
14 Springfield?
15 A. Yes, I do.
16 Q. How long have you worked for the
17 Illinois Environmental Protection Agency?
18 A. For 24 years.
19 Q. Where did you work for the agency when
20 you started working there 24 years ago?
21 A. I started in the water pollution
22 control division in the operator certification unit.
23 Q. And have you held other positions over
24 your 24 years there?
L.A. REPORTING (312) 419-9292
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1 A. In 1987, I became the manager of the
2 compliance operations unit and then in January of
3 2003, I became the acting manager of the compliance
4 assurance section.
5 Q. What is the compliance operations
6 unit?
7 A. The compliance operations unit
8 provides support for the compliance assurance
9 section. It is a unit of the section codes, NPDES
10 permits, and processes DMR forms, discharge
11 monitoring report forms, received by the agency.
12 Q. You also mentioned NPDES permits.
13 What does NPDES stand for?
14 A. National Pollutant Discharge
15 Elimination System.
16 Q. What responsibilities does the
17 compliance assurance section have?
18 A. To monitor compliance of water and
19 waste water treatment facilities with NPDES permits,
20 to process DMR forms and to take compliance actions
21 as necessary.
22 Q. Now, you mentioned waste water, would
23 you also have storm water responsibilities?
24 A. Yes.
L.A. REPORTING (312) 419-9292
25
1 Q. And what does your unit actually do
2 with NPDES permits? And let me direct your
3 attention more toward the late 1980s, early 1990s
4 rather than today.
5 A. Well, what we do is monitor the
6 compliance of waste water facilities with the NPDES
7 permits, compare discharge monitoring reports with
8 limits contained in those permits.
9 Q. You keep saying waste water, but do
10 you also mean storm water?
11 A. Yes.
12 Q. And is one of the ways that you do
13 that monitoring with discharge monitoring reports or
14 DMRs?
15 A. Yes.
16 Q. And what do you do with those?
17 A. Discharge monitoring reports are
18 received, they are logged in and distributed, and
19 compared with NPDES permit limits.
20 Q. Are you familiar with the Skokie
21 Valley Asphalt Company?
22 A. Yes. I'm familiar that they had an
23 NPDES permit.
24 Q. And is that basically how you're
L.A. REPORTING (312) 419-9292
26
1 familiar with that company?
2 A. Yes.
3 Q. You have never gone out the Grayslake
4 and seen the facility or anything like that?
5 A. No, I haven't.
6 MR. COHEN: Madam Hearing Officer, may
7 I approach?
8 HEARING OFFICER SUDMAN: Yes.
9 BY MR. COHEN:
10 Q. Mr. Garretson, I'm handing you a white
11 binder entitled Complainant's Exhibits. I also have
12 one here for the hearing officer --
13 HEARING OFFICER SUDMAN: Oh, thank
14 you.
15 Q. -- and one has been given to
16 respondents' counsel.
17 Directing your attention to
18 Complainant's Exhibit No. 1, do you recognize that
19 exhibit?
20 MR. JAWGIEL: I'm going to object to
21 the foundation.
22 HEARING OFFICER SUDMAN: Would you
23 like to lay some foundation for this?
24 MR. COHEN: That's exactly what I'm
L.A. REPORTING (312) 419-9292
27
1 trying to do.
2 HEARING OFFICER SUDMAN: Okay.
3 THE WITNESS: Yes. It's the NPDES
4 permit issued to Skokie Valley Asphalt
5 Company.
6 BY MR. COHEN:
7 Q. And when was that permit issued to
8 them?
9 MR. JAWGIEL: Your Honor, I'm going to
10 object. This goes beyond the scope of his
11 213 interrogatories.
12 HEARING OFFICER SUDMAN: Overruled.
13 THE WITNESS: It was issued on
14 April 4, 1986.
15 BY MR. COHEN:
16 Q. And when did this become effective?
17 A. May 4, 1986.
18 Q. And when did this permit expire?
19 A. March 1, 1991.
20 Q. Is that a true and correct copy of the
21 permit?
22 A. Yes, it is.
23 Q. And is that permit kept in the
24 ordinary course of Illinois EPA business?
L.A. REPORTING (312) 419-9292
28
1 A. Yes, it is.
2 Q. What is the permit number issued to
3 the Skokie Valley Asphalt Company?
4 A. IL-0065005.
5 Q. Did the NPDES permit issued to Skokie
6 Valley Asphalt Company require them to submit DMRs?
7 MR. JAWGIEL: Your Honor, objection,
8 legal conclusion.
9 HEARING OFFICER SUDMAN: The question
10 or the answer?
11 MR. JAWGIEL: The question asks for a
12 legal conclusion whether or not the permit
13 requires -- the requirements of the permit
14 speak for themselves.
15 HEARING OFFICER SUDMAN: Overruled.
16 I'll allow it.
17 MR. JAWGIEL: I'll object also to
18 foundation. He hasn't established that this
19 individual knows the requirements of an NPDES
20 permit at the time of issuance.
21 HEARING OFFICER SUDMAN: Okay. Well,
22 he's not finished.
23 THE WITNESS: Yes. The NPDES permit
24 requires the permittee to submit monthly
L.A. REPORTING (312) 419-9292
29
1 discharge monitoring report forms.
2 BY MR. COHEN:
3 Q. And when would Skokie Valley Asphalt
4 Company be required to start submitting their
5 discharge monitoring reports?
6 MR. JAWGIEL: Same objection, your
7 Honor. We haven't established a foundation
8 that this individual is knowledgeable with
9 respect to this permit at the time. That
10 foundation has not been laid.
11 HEARING OFFICER SUDMAN: Would you
12 like to make a continuing objection? I mean,
13 it sounds like he's moving in that direction.
14 MR. JAWGIEL: Yes. That's fine, your
15 Honor. I'll have a continuing objection. I
16 assume that my objections are overruled?
17 HEARING OFFICER SUDMAN: Yes.
18 Please continue and please do
19 establish a foundation.
20 THE WITNESS: Could you please repeat
21 the question?
22 BY MR. COHEN:
23 Q. Let me go back to your work again with
24 the compliance assurance section. Back in the late
L.A. REPORTING (312) 419-9292
30
1 '80s, what did your division do when you received
2 NPDES permits?
3 A. As NPDES permits were issued, the
4 requirements contained in those permits were entered
5 into a computer system for tracking.
6 Q. So would your unit be responsible for
7 reviewing those permits and learning and
8 understanding what the requirements of the permits
9 were?
10 MR. JAWGIEL: Objection, your Honor,
11 leading.
12 HEARING OFFICER SUDMAN: Well, you are
13 leading a little bit. Could you just --
14 MR. COHEN: He keeps asking me to lay
15 the foundation.
16 HEARING OFFICER SUDMAN: Yeah. I
17 mean, this is pretty introductory stuff.
18 MR. JAWGIEL: It's introductory, but
19 he can simply ask what was the responsibility
20 of your department. He doesn't have to lay
21 it out for him step by step. This individual
22 who allegedly is a knowledgeable person of
23 the procedures can tell us in his detail --
24 in his own words, what this department does.
L.A. REPORTING (312) 419-9292
31
1 HEARING OFFICER SUDMAN: Well, I think
2 he's just trying to speed things along a
3 little bit because you want foundation and
4 the witness doesn't know what information
5 you're looking for and I think Mr. Cohen can
6 help him reach that a little faster.
7 MR. JAWGIEL: He's not allowed to lead
8 in order to shrunkate this proceeding for his
9 benefit. If this individual doesn't give the
10 testimony he wants, that's the State's
11 problem.
12 HEARING OFFICER SUDMAN: Mr. Jawgiel,
13 I will not allow him to lead the witness.
14 However, I consider this testimony on laying
15 the foundation to be fairly preliminary.
16 MR. JAWGIEL: Thank you, your Honor.
17 HEARING OFFICER SUDMAN: So your
18 objection is overruled.
19 Please continue.
20 BY MR. COHEN:
21 Q. Do you remember the question?
22 A. No. I'm sorry.
23 Q. Is part of the function of your unit
24 to review the requirements of the NPDES permits so
L.A. REPORTING (312) 419-9292
32
1 that you would know what those requirements were?
2 MR. JAWGIEL: Same objection.
3 HEARING OFFICER SUDMAN: Would you
4 like to make a standing objection,
5 Mr. Jawgiel?
6 MR. JAWGIEL: Please. Thank you,
7 your Honor.
8 THE WITNESS: The NPDES permits, like
9 I said, are reviewed and coded into a
10 computer system for compliance tracking.
11 BY MR. COHEN:
12 Q. And did you do that -- did your unit
13 do that with the Skokie Valley Asphalt Company?
14 A. Yes, we did.
15 Q. When was Skokie Valley Asphalt
16 supposed to start submitting their DMR reports?
17 MR. JAWGIEL: Same objection,
18 foundation.
19 HEARING OFFICER SUDMAN: You have a
20 standing objection to this entire line of
21 questioning, okay?
22 MR. JAWGIEL: Thank you, your Honor.
23 Please continue.
24 THE WITNESS: It would have been
L.A. REPORTING (312) 419-9292
33
1 June 15, 1986.
2 BY MR. COHEN:
3 Q. And why do you say June 15, 1986?
4 A. Because the NPDES permit requires the
5 permittee to submit the discharge monitoring report
6 form no later than the 15th of the following month.
7 Q. The 15th of the following month?
8 A. For each month, yes.
9 Q. Is that the 15th of the following
10 month after the permit is issued?
11 A. After the permit becomes effective.
12 Q. And does that DMR responsibility begin
13 even if the company is not discharging?
14 A. Yes. The NPDES permit states that.
15 Q. Can you explain the process that the
16 Illinois EPA uses when DMRs are received at the
17 division of water pollution control compliance
18 assurance section and, again, I'm referring to back
19 in the late '80's or early '90s?
20 A. Yes. At that time, DMRs were received
21 in the mail. They were opened -- the mail was
22 opened by one particular individual, then the DMRs
23 were date stamped and then provided to another
24 individual for logging in our DMR submission records
L.A. REPORTING (312) 419-9292
34
1 and then they were copied and distributed to our
2 regional offices and our records unit.
3 Q. Is that generally the same procedure
4 that was used for Skokie Valley Asphalt Company's
5 DMR?
6 MR. JAWGIEL: Your Honor, I'm going to
7 object. There's no foundation with respect
8 to this individual's personal knowledge of
9 what happened to the DMRs submitted by Skokie
10 Valley.
11 HEARING OFFICER SUDMAN: Overruled.
12 THE WITNESS: Yes.
13 BY MR. COHEN:
14 Q. Directing your attention to
15 Complaint's Exhibit No. 2, do you recognize that?
16 MR. JAWGIEL: I'm going to object to
17 the foundation, your Honor. That is not a
18 proper form of a question to establish an
19 exhibit.
20 HEARING OFFICER SUDMAN: I'll allow
21 it. Just allow him a couple of questions to
22 establish a foundation, you know, first.
23 So please go ahead.
24 THE WITNESS: Yes. This is the
L.A. REPORTING (312) 419-9292
35
1 November 1990 discharge monitoring report
2 form submitted by Skokie Valley Asphalt
3 Company, Incorporated.
4 BY MR. COHEN:
5 Q. When was it received by the Illinois
6 EPA?
7 A. On December 18, 1990.
8 Q. How can you tell that it was received
9 by the Illinois EPA on that date?
10 A. By the compliance assurance section
11 date stamp on the document.
12 Q. Are all DMRs stamped received by your
13 unit?
14 MR. JAWGIEL: I'm going to object,
15 your Honor, with respect to foundation. He
16 can talk about procedure but he can't talk --
17 unless he establishes a foundation that this
18 individual processed every single DMR,
19 whether or not every single DMR has been
20 stamped.
21 HEARING OFFICER SUDMAN: You can make
22 a standing objection as to the foundation of
23 this document, but I'm going to overrule your
24 objection for now.
L.A. REPORTING (312) 419-9292
36
1 Please continue.
2 THE WITNESS: DMRs are generally date
3 stamped. There have been times when not all
4 of them have been stamped.
5 BY MR. COHEN:
6 Q. Do you know why sometimes not all DMRs
7 were date stamped?
8 A. Well, I do know back at the time that
9 we're talking about that we received a lot of
10 discharge monitoring report forms. We had the
11 practice of date stamping every individual page of
12 the DMR. We made a procedural change so that just
13 the top page of the documents would be date stamped.
14 But in some cases when multiple
15 submissions of DMRs could come in together, it
16 resulted in errors because the top copy got stamped
17 and not all of the DMRs.
18 Q. Do you know of any other reasons DMRs
19 might not have been date stamped?
20 A. It could be human error.
21 Q. Who certified and signed that DMR?
22 MR. JAWGIEL: I'm going to object to
23 the foundation, your Honor.
24 HEARING OFFICER SUDMAN: Overruled.
L.A. REPORTING (312) 419-9292
37
1 THE WITNESS: Richard J. Frederick,
2 vice president of Skokie Valley Asphalt
3 Company, Incorporated.
4 BY MR. COHEN:
5 Q. Directing your attention to
6 Complaint's Exhibit No. 3, do you recognize that
7 exhibit?
8 A. That's the December 1990 discharge
9 monitoring report form for Skokie Valley Asphalt
10 Company.
11 Q. And when was that DMR received by the
12 Illinois EPA?
13 A. April 25, 1991.
14 Q. By the way, when was that DMR due to
15 the Illinois EPA?
16 A. January 15, 1991.
17 Q. Who signed and certified that DMR?
18 A. Richard J. Frederick, vice president
19 of Skokie Valley Asphalt Company.
20 Q. Other than the dates, is the data
21 contained in Skokie Valley Asphalt's November 1990
22 DMR, which was Complainant's Exhibit No. 2,
23 identical to the data contained in its
24 December 1990 DMR, Complainant's Exhibit
L.A. REPORTING (312) 419-9292
38
1 No. 3?
2 MR. JAWGIEL: Your Honor, I'm going to
3 object. The document speaks for itself.
4 HEARING OFFICER SUDMAN: Overruled.
5 You can answer.
6 THE WITNESS: Yes, it's identical.
7 BY MR. COHEN:
8 Q. But for the dates on those two
9 documents, do the copies appear to be identical?
10 MR. JAWGIEL: I'm going to object,
11 your Honor, with respect to foundation.
12 This individual has not been qualified as an
13 expert in determining the photocopying
14 qualities of two different documents.
15 HEARING OFFICER SUDMAN: That's true,
16 but the Board is able to weigh his testimony
17 and see for themselves, so I'll allow him to
18 answer to the extent that he's able with his
19 credentials.
20 THE WITNESS: The documents look
21 identical.
22 BY MR. COHEN:
23 Q. Directing your attention to
24 Complainant's Exhibit No. 4, do you recognize that?
L.A. REPORTING (312) 419-9292
39
1 A. It's the discharge monitoring report
2 form submitted for January 1991 by Skokie Valley
3 Asphalt Company.
4 Q. When was that discharge monitoring
5 report due to the Illinois EPA?
6 A. February 15, 1991.
7 Q. And when was that document received by
8 the Illinois EPA?
9 A. April 25, 1991.
10 Q. Who signed and certified that
11 document?
12 A. Richard J. Frederick, vice president
13 of Skokie Valley Asphalt Company.
14 Q. Directing your attention to
15 Complainant's Exhibit No. 5, do you recognize that
16 document?
17 A. It is the February 1991 discharge
18 monitoring report form for Skokie Valley Asphalt
19 Company.
20 Q. When was that received by the Illinois
21 EPA?
22 A. February 28, 1991.
23 Q. Who signed and certified that
24 document?
L.A. REPORTING (312) 419-9292
40
1 A. Richard J. Frederick, vice president
2 of Skokie Valley Asphalt Company.
3 Q. Other than the dates on Complainant's
4 Exhibits 4 and 5, Skokie Valley Asphalt DMRs for
5 January 1991 and February 1991, is the data
6 contained in both DMRs identical?
7 A. Yes, it is.
8 Q. But for the dates, do the copies
9 appear to be identical?
10 MR. JAWGIEL: Objection, your Honor,
11 foundation. This witness has not been
12 qualified as an expert to determine whether
13 or not the copies of two different documents
14 are identical.
15 HEARING OFFICER SUDMAN: I'm
16 overruling that for the same reason as
17 before.
18 THE WITNESS: Yes, it's identical.
19 BY MR. COHEN:
20 Q. Is it unusual to get DMRs from the
21 same company with identical scientific data two
22 months in a row?
23 MR. JAWGIEL: Your Honor, objection.
24 He hasn't laid the foundation with respect to
L.A. REPORTING (312) 419-9292
41
1 the frequency of that occurrence, his
2 experience with that, his review of the DMRs
3 during this period of time, et cetera. He
4 has not laid the proper foundation for that
5 opinion.
6 HEARING OFFICER SUDMAN: Overruled.
7 THE WITNESS: Yes, it is unusual.
8 BY MR. COHEN:
9 Q. Why do you say it's unusual?
10 A. Because there are many variables in
11 the -- weather could have an effect. Sampling
12 procedures and testing procedures could all be
13 variables and result in different values reported on
14 discharge monitoring report forms.
15 Q. Referring back to Skokie Valley
16 Asphalt's NPDES permit, IL-0065005, Complainant's
17 Exhibit No. 1, when did Skokie Valley Asphalt's
18 permit expire?
19 A. March 1, 1991.
20 Q. According to their permit, when did
21 Skokie Valley Asphalt have to reapply for their
22 permit if they wanted to continue to discharge
23 waters of the State after March 1, 1991?
24 A. Well, 180 days prior to the expiration
L.A. REPORTING (312) 419-9292
42
1 date.
2 Q. Did Skokie Valley Asphalt reapply for
3 their NPDES permit 180 days before March 1, 1991?
4 A. No, they didn't.
5 Q. Directing your attention to
6 Complainant's Exhibit No. 6, do you recognize that
7 document?
8 A. It's a permit renewal application
9 submitted for Skokie Valley Asphalt Company, permit
10 number IL-0065005.
11 Q. When was that permit renewal
12 application received by the Illinois EPA?
13 A. June 5, 1991.
14 Q. And who submitted that application?
15 A. Edwin L. Frederick, Jr., president of
16 Skokie Valley Asphalt Company.
17 Q. Did he also sign that application?
18 A. Yes, he did.
19 Q. Now, was that permit renewal
20 application received by the compliance assurance
21 section?
22 A. Yes, it was.
23 Q. Why did Skokie Valley Asphalt send the
24 compliance assurance section its permit renewal
L.A. REPORTING (312) 419-9292
43
1 application?
2 MR. JAWGIEL: Your Honor, I'm going
3 to object. That asks for speculation on the
4 state of mind and reasoning behind this from
5 another entity. He's asking this individual
6 why Skokie Valley did something and I don't
7 think this individual can speak for Skokie
8 Valley.
9 HEARING OFFICER SUDMAN: What was your
10 question?
11 MR. COHEN: My question was why did
12 Skokie Valley Asphalt Company send the permit
13 renewal application to the compliance
14 assurance section.
15 HEARING OFFICER SUDMAN: I'll allow
16 it -- as opposed to sending it anywhere else?
17 MR. COHEN: Correct.
18 HEARING OFFICER SUDMAN: I'll allow
19 that.
20 THE WITNESS: It was requested of
21 Skokie Valley to send it to the compliance
22 assurance section and a compliance inquiry
23 letter to them in April of 1991.
24 MR. JAWGIEL: Your Honor, is he
L.A. REPORTING (312) 419-9292
44
1 looking at that letter as we speak?
2 HEARING OFFICER SUDMAN: He appears to
3 be.
4 MR. JAWGIEL: Are you looking at the
5 letter, sir?
6 HEARING OFFICER SUDMAN: Exhibit 6?
7 MR. JAWGIEL: Exhibit 6 is not the
8 letter.
9 HEARING OFFICER SUDMAN: Oh.
10 MR. JAWGIEL: Exhibit 6 is the renewal
11 application form.
12 HEARING OFFICER SUDMAN: Isn't that
13 what you were talking about?
14 MR. COHEN: Correct.
15 MR. JAWGIEL: But this witness said --
16 I want to know what exhibit is in front of
17 him because he has a whole stack of exhibits.
18 My concern is he's reviewing an exhibit that
19 hasn't been admitted at this point in time.
20 HEARING OFFICER SUDMAN: What exhibit
21 are you reviewing, sir?
22 THE WITNESS: The permit renewal
23 application form.
24 HEARING OFFICER SUDMAN: Okay. And
L.A. REPORTING (312) 419-9292
45
1 that's what you were talking about?
2 THE WITNESS: No.
3 HEARING OFFICER SUDMAN: No, that's
4 not what you were talking about?
5 THE WITNESS: No.
6 HEARING OFFICER SUDMAN: What were you
7 talking about?
8 THE WITNESS: About a compliance
9 inquiry letter that --
10 HEARING OFFICER SUDMAN: Okay. So
11 that was not the subject of this question; is
12 that correct? Can we back up a little bit
13 and just start again?
14 MR. COHEN: Yes.
15 BY MR. COHEN:
16 Q. Mr. Garretson, is it unusual for a
17 company to send a permit renewal application to the
18 compliance assurance section instead of the permit
19 section?
20 MR. JAWGIEL: Objection, your Honor.
21 That goes beyond his 213 disclosures.
22 HEARING OFFICER SUDMAN: Overruled.
23 THE WITNESS: It's not unusual when
24 it's requested in a compliance inquiry
L.A. REPORTING (312) 419-9292
46
1 letter.
2 BY MR. COHEN:
3 Q. Why did Skokie Valley Asphalt Company
4 send the compliance assurance section its permit
5 renewal application?
6 MR. JAWGIEL: Same objection, your
7 Honor, with respect --
8 HEARING OFFICER SUDMAN: Would you
9 like to make a standing objection to that?
10 MR. JAWGIEL: Please. Thank you.
11 HEARING OFFICER SUDMAN: Please
12 continue.
13 THE WITNESS: Because it was requested
14 in a compliance inquiry letter to Skokie
15 Valley.
16 BY MR. COHEN:
17 Q. You're not looking at this letter, are
18 you?
19 A. No, I'm not.
20 Q. Do you know why such a letter was sent
21 to Skokie Valley Asphalt Company?
22 A. Because the permit had expired and the
23 permit application had not been received.
24 Q. And that would be something that would
L.A. REPORTING (312) 419-9292
47
1 be the responsibility of your unit?
2 A. That's correct.
3 Q. If the permit section needs additional
4 information related to a permit renewal application,
5 would the compliance assurance section have any
6 responsibility for that?
7 A. No.
8 Q. Directing your attention to
9 Complainant's Exhibit No. 7, it appears to be a
10 submittal of additional information. As I
11 understand it, your unit would not be involved with
12 this?
13 A. That's correct.
14 Q. Earlier you mentioned that DMRs are
15 logged in at the division of water pollution control
16 compliance assurance section and I'm talking about
17 late '80s, early '90s. Can you describe the
18 procedure in a little more detail?
19 A. As DMRs are received in the compliance
20 assurance section, the mail is opened, the DMRs are
21 date stamped, then they are given to an individual
22 who makes a record of the DMR submissions in what we
23 call discharge -- DMR submission records.
24 Q. What is a DMR submission record?
L.A. REPORTING (312) 419-9292
48
1 A. It's a logbook of a list of NPDES
2 permit numbers where the dates of DMR submissions
3 are recorded.
4 Q. Now, is this the procedure that's
5 still at the agency?
6 A. No. We started doing an electronic
7 log in, I believe, it was 1987.
8 Q. And I know we're talking about --
9 A. I apologize. That's 1997.
10 Q. Okay. I know we're talking
11 15 years ago, but does the Illinois EPA still have
12 some of those logbooks from back then?
13 A. Yes, we do.
14 Q. Directing your attention to
15 Complainant's Exhibit No. 8, do you recognize that
16 exhibit?
17 A. Yes. These are the sheets out of the
18 DMR submission records which contain the Skokie
19 Valley NPDES permit number, yes.
20 Q. And did those sheets come from the
21 logbooks that you were able to find?
22 A. Yes, they do.
23 Q. And did you photocopy those pages from
24 logbooks?
L.A. REPORTING (312) 419-9292
49
1 A. Yes, I did.
2 Q. What years of the logbooks were you
3 able to find and are included in that exhibit?
4 A. I found 1986, 1987, 1988, 1989, 1990,
5 1991, 1992, 1993, and 1996.
6 Q. Excuse me. I asked about the exhibit.
7 Is 1986 included in your copy of the exhibit?
8 A. No, it's not.
9 Q. And for the record, these pages in
10 Complainant's Exhibit No. 8 are also lettered.
11 Could you go through the years and
12 say what the letter of each page is, please?
13 A. Okay. 1987 is 8A; 1988 is 8B; 1989 is
14 8C; 1990 is 8D; 1991 is 8E; 1992 is 8F; 1993 is 8G;
15 and 1996 is 8H.
16 Q. Thank you.
17 You mentioned earlier that Skokie
18 Valley Asphalt's NPDES permit became effective in
19 May of 1986, correct?
20 A. Yes.
21 Q. Do you have any records of which DMRs
22 Skokie Valley Asphalt submitted in 1986?
23 A. There's no record of submissions of
24 DMRs in 1986.
L.A. REPORTING (312) 419-9292
50
1 Q. Which DMRs did Skokie Valley Asphalt
2 submit in 1987?
3 A. There's no DMR submission records for
4 the -- submissions by Skokie Valley in 1987.
5 Q. Can you describe for the Board how you
6 are using Complainant's Exhibit 8A in your answer to
7 that question?
8 A. Okay. I'm finding the entry for
9 Skokie Valley Asphalt Company. There are places on
10 the sheet labeled 01 through 12 where they represent
11 months and in those places we log the date that the
12 DMR was received for that month in the DMR
13 submission record.
14 Q. And at least on Complainant's
15 Exhibit 8A, the Skokie Valley Asphalt name is
16 approximately halfway down the page, would that be
17 correct?
18 A. That's correct.
19 Q. And there's also a number to the left
20 of Skokie Valley Asphalt. What does that number
21 represent?
22 A. That number represents the NPDES
23 permit number for Skokie Valley.
24 Q. Did Skokie Valley Asphalt submit any
L.A. REPORTING (312) 419-9292
51
1 DMRs in 1988?
2 MR. JAWGIEL: I'm just going to
3 object. Is it according to this record that
4 he's basing his opinion on I assume? Form of
5 the question is my objection.
6 HEARING OFFICER SUDMAN: What's your
7 objection?
8 MR. JAWGIEL: My objection is form of
9 the question.
10 HEARING OFFICER SUDMAN: Would you
11 like to rephrase the question, Mr. Cohen?
12 MR. JAWGIEL: I assume it's based on
13 these reports.
14 HEARING OFFICER SUDMAN: I would
15 assume as well, but would you like to
16 clarify?
17 BY MR. COHEN:
18 Q. Referring to Complainant's
19 Exhibit No. 8B, did the Illinois EPA have any record
20 of Skokie Valley Asphalt submitting any DMRs in
21 1988?
22 A. The records show that they submitted
23 the November and December DMRs in 1988.
24 Q. Just those two?
L.A. REPORTING (312) 419-9292
52
1 A. Yes.
2 Q. According to Complainant's Exhibit 8C,
3 in 1989 did Skokie Valley Asphalt fail to submit any
4 of their monthly DMRs?
5 MR. JAWGIEL: Your Honor, I'm going
6 to object. This is not germane to the issues
7 that are in the complaint. This is not one
8 of the issues that was brought before you
9 here today.
10 HEARING OFFICER SUDMAN: Would you
11 care to respond to that, Mr. Cohen?
12 MR. COHEN: I believe Count III.
13 HEARING OFFICER SUDMAN: I'm going to
14 overrule that objection.
15 THE WITNESS: The record shows that
16 DMRs were not received for April, June,
17 August, September, October, November or
18 December of 1989.
19 BY MR. COHEN:
20 Q. According to the Complainant's
21 Exhibit 8D, in 1999 did Skokie Valley Asphalt fail
22 to submit any of their monthly DMRs?
23 A. There's no record for a September 1990
24 DMR for Skokie Valley.
L.A. REPORTING (312) 419-9292
53
1 Q. And according to Complainant's
2 Exhibit 8F, in 1992 did Skokie Valley Asphalt fail
3 to submit any of their monthly DMRs?
4 A. There's no record of receiving the
5 July 1992 DMR from Skokie Valley Asphalt.
6 Q. Referring back to Complainant's
7 Exhibit No. 1, Skokie Valley Asphalt's NPDES permit,
8 are there concentration limits listed in the permit
9 for total suspended solids?
10 MR. JAWGIEL: Your Honor, I'm going
11 to object. That goes beyond the scope of his
12 213 disclosures.
13 HEARING OFFICER SUDMAN: Overruled.
14 THE WITNESS: Could you repeat?
15 BY MR. COHEN:
16 Q. According to their NPDES permit, are
17 there concentration limits listed in the permit for
18 total suspended solids?
19 A. Yes, there are.
20 Q. What are the concentration limits?
21 A. It's 15 milligrams per liter as a
22 30-day average and 30 milligrams per liter as a
23 daily maximum.
24 Q. Directing your attention to
L.A. REPORTING (312) 419-9292
54
1 Complainant's Exhibit No. 9, do you recognize that
2 document?
3 A. It's the August 1991 DMR for Skokie
4 Valley Asphalt Company.
5 Q. And who is that signed and certified
6 by?
7 A. Richard J. Frederick, vice president
8 of Skokie Valley Asphalt Company.
9 Q. And what does Skokie Valley Asphalt
10 Company report as their 30-day average concentration
11 for total suspended solids?
12 A. Fifty-five milligrams per liter.
13 Q. And what does Skokie Valley Asphalt
14 Company report as their daily maximum concentration
15 for total suspended solids?
16 A. Fifty-five milligrams per liter.
17 Q. Directing your attention to
18 Complainant's Exhibit No. 10, do you recognize that
19 document?
20 A. It's the September 1991 discharge
21 monitoring report form for Skokie Valley Asphalt
22 Company.
23 Q. Who signed and certified that
24 document?
L.A. REPORTING (312) 419-9292
55
1 A. Richard J. Frederick, vice president
2 of Skokie Valley Asphalt.
3 Q. What does Skokie Valley Asphalt
4 Company report as their 30-day average concentration
5 for total suspended solids?
6 A. Twenty-five milligrams per liter.
7 Q. Directing your attention to
8 Complainant's Exhibit No. 11, do you recognize that
9 document?
10 A. It's the October 1991 discharge
11 monitoring report form for Skokie Valley Asphalt
12 Company.
13 Q. What does Skokie Valley Asphalt
14 Company report as their 30-day average for total
15 suspended solids?
16 A. Forty-one milligrams per liter.
17 Q. What does Skokie Valley Asphalt
18 Company report as their daily maximum for total
19 suspended solids?
20 A. Forty-one milligrams per liter.
21 Q. Complainant's Exhibit No. 12, do you
22 recognize that?
23 A. It's the February 1992 discharge
24 monitoring report form for Skokie Valley Asphalt
L.A. REPORTING (312) 419-9292
56
1 Company.
2 Q. What does Skokie Valley Asphalt
3 Company report as their 30-day average for total
4 suspended solids?
5 A. Eighteen milligrams per liter.
6 Q. Complainant's Exhibit No. 13, do you
7 recognize that?
8 A. It's the November 1992 discharge
9 monitoring report form for Skokie Valley Asphalt
10 Company.
11 Q. What does Skokie Valley Asphalt report
12 as their 30-day average concentration for total
13 suspended solids?
14 A. Twenty-two milligrams two per liter.
15 Q. Complainant's Exhibit No. 14, do you
16 recognize that?
17 A. It's the December 1992 discharge
18 monitoring report form for Skokie Valley Asphalt
19 Company.
20 Q. What does Skokie Valley Asphalt
21 Company report as their 30-day average for total
22 suspended solids?
23 A. Twenty-four milligrams per liter.
24 Q. Complainant's Exhibit No. 15, what is
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1 that?
2 A. It's the May 1993 discharge monitoring
3 report form for Skokie Valley Asphalt Company.
4 Q. What does Skokie Valley Asphalt report
5 as their 30-day average for total suspended solids?
6 A. Twenty-four milligrams per liter.
7 Q. Complainant's Exhibit No. 16, what is
8 that?
9 A. This is a discharge monitoring report
10 form for June 1993.
11 Q. What does Skokie Valley report as
12 their 30-day average for total suspended solids?
13 A. Thirty-five milligrams per liter.
14 Q. And what does Skokie Valley Asphalt
15 Company report as their daily maximum concentration
16 for total suspended solids?
17 A. Thirty-five milligrams per liter.
18 Q. Complainant's Exhibit No. 17, what is
19 that?
20 A. It's the April 1995 discharge
21 monitoring report form for Skokie Valley Asphalt
22 Company.
23 Q. What does Skokie Valley Asphalt report
24 as their 30-day average concentration for total
L.A. REPORTING (312) 419-9292
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1 suspended solids?
2 A. 126 milligrams per liter.
3 Q. And what does Skokie Valley Asphalt
4 report as their daily maximum concentration for
5 total suspended solids?
6 A. 126 milligrams per liter.
7 Q. Mr. Garretson, are all the
8 concentrations Skokie Valley Asphalt reported for
9 total suspended solid concentrations in
10 Complainant's Exhibit Nos. 9 through 17 that I just
11 asked you to read in excess of the concentrations
12 allowed in Skokie Valley Asphalt's NPDES permit?
13 MR. JAWGIEL: Your Honor, I'm going to
14 object as far as a legal conclusion.
15 HEARING OFFICER SUDMAN: I'll allow
16 him to answer to the extent that he's able.
17 THE WITNESS: Yes, they are
18 violations.
19 BY MR. COHEN:
20 Q. And with regard to Complainant's
21 Exhibit Nos. 1 through 6 and 8 through 17, are all
22 those records kept in the ordinary course of
23 Illinois EPA business?
24 A. Yes, they are.
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1 Q. And are all those exhibits true and
2 correct copies of the Illinois EPA records?
3 A. Yes, they are.
4 MR. COHEN: May I have one moment?
5 HEARING OFFICER SUDMAN: Okay.
6 MR. COHEN: Just for clarity, I just
7 want to straighten out -- I think I misspoke
8 in my last couple of questions.
9 HEARING OFFICER SUDMAN: Okay.
10 BY MR. COHEN:
11 Q. Mr. Garretson, with regard to
12 Complainant's Exhibits 1 through 6 and 8 through 17,
13 are those records kept in the ordinary course of
14 Illinois EPA business?
15 A. 1 through 6 and -- I'm sorry?
16 Q. 8 through 17.
17 A. Yes, they are.
18 Q. And are those true and correct copies
19 of those records?
20 A. Yes, they are.
21 MR. JAWGIEL: Your Honor, if I may,
22 with respect to Count III, according to the
23 State, they say that this information is
24 relevant. Count III does not address the
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1 missing DMR. Count III addresses that levels
2 were reported inaccurately. I can show you
3 my copy to make it convenient for you, but
4 the information is not relevant.
5 HEARING OFFICER SUDMAN: I was under
6 the impression Count III did also include
7 some missing reports but --
8 MR. JAWGIEL: Some, but not all of
9 those dates that they were going through.
10 HEARING OFFICER SUDMAN: Would you
11 like to respond to that Mr. Cohen?
12 MR. COHEN: Yes, there are missing
13 reports and they are alleged in that count.
14 MR. JAWGIEL: That is not accurate.
15 The missing reports are not alleged in that
16 count. What's alleged in paragraph 21, and I
17 think is particularly what I'm referring to,
18 is that's the count which addresses the
19 substance of that particular count and it has
20 nothing to do with missing reports.
21 MR. COHEN: Paragraph 18 from the
22 second amended complaint: Since November
23 1988, respondents failed to submit DMRs, et
24 cetera.
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1 HEARING OFFICER SUDMAN: Does it
2 specify dates?
3 MR. COHEN: Yes, it does.
4 Judge, I did have one final
5 question to clarify --
6 HEARING OFFICER SUDMAN: Oh, yes.
7 MR. JAWGIEL: Your Honor, if I can
8 have a ruling on my objection with respect to
9 that information once you have had an
10 opportunity, I would appreciate it.
11 HEARING OFFICER SUDMAN: And your
12 objection was to the evidence pertaining to
13 dates not enumerated in the complaint?
14 MR. JAWGIEL: Correct.
15 HEARING OFFICER SUDMAN: Well, is
16 there anything else this evidence goes
17 towards? Are you asserting that this
18 evidence is relevant to other allegations?
19 MR. COHEN: Well, I believe it's a
20 pattern that we're going to see throughout
21 this trial, yes. But as far as the
22 particular dates go, we're certainly allowed
23 to conform the complaint to the evidence
24 that's presented.
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1 HEARING OFFICER SUDMAN: Well, it
2 says --
3 MR. JAWGIEL: Your Honor, if I may
4 just respond very briefly --
5 HEARING OFFICER SUDMAN: Yes.
6 MR. JAWGIEL: -- a pattern has no
7 relevance in this particular cause of action.
8 It's not one of the elements necessarily that
9 needs to be presented with respect to this
10 particular issue, on the reporting issue.
11 HEARING OFFICER SUDMAN: Well,
12 Count III, paragraph 18 says: Since November
13 1988, respondents failed to submit DMRs to
14 the Illinois EPA for the following months:
15 November 1988, April '89, June '89, August
16 '89, October '89, November '89, December '89,
17 and July of '92.
18 MR. JAWGIEL: And counsel went into
19 '86 and '87. He went into dates that were
20 beyond this paragraph.
21 HEARING OFFICER SUDMAN: Well, but
22 then it also -- I mean, are those dates
23 relevant to any other allegations in this
24 complaint, Mr. Cohen?
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1 MR. COHEN: Yes. I think it's going
2 to show a pattern of noncompliance by the
3 respondents.
4 HEARING OFFICER SUDMAN: Towards which
5 count or which allegation specifically?
6 MR. COHEN: Well, I think you'll see
7 it come up in the water pollution count and
8 we do allege failure to comply with reporting
9 requirements. We are allowed to conform the
10 complaint at any time to match the evidence,
11 so I do believe that evidence is relevant and
12 certainly admissible.
13 MR. JAWGIEL: Your Honor, the water
14 pollution count has nothing to do with this
15 particular reporting because they're talking
16 about oily substances and they're talking
17 apples and oranges. This is typical of this
18 particular case; it's done by smoke in
19 mirrors.
20 HEARING OFFICER SUDMAN: Well, here's
21 what I'm going to do since you don't point me
22 to a particular allegation in the complaint:
23 I'm going to certainly allow the evidence
24 with respect to the dates specified in the
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1 complaint. The other evidence we'll do as an
2 offer of proof.
3 Now, what was your question on
4 clarification?
5 MR. COHEN: I'm going to leave it
6 alone, your Honor.
7 HEARING OFFICER SUDMAN: Okay.
8 Mr. Jawgiel, your witness?
9 MR. JAWGIEL: Thank you, your Honor.
10 C R O S S - E X A M I N A T I O N
11 BY MR. JAWGIEL:
12 Q. Good morning, sir.
13 A. Good morning.
14 Q. I apologize if I have you jump around
15 from place to place, but I'm trying to cover certain
16 areas that may have been covered.
17 You talked a little about the
18 logging procedures that were performed back in the
19 late 1980s, early 1990s and I think you indicated it
20 was done by hand; is that correct?
21 A. That's correct.
22 Q. Were there any quality assurance
23 procedures instituted by your department at that
24 point in time to determine whether or not the people
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1 who were actually logging the information were doing
2 so correctly?
3 A. I'm not aware of any formal quality
4 assurance procedures.
5 Q. So as you sit here today, you don't
6 know whether or not the logs that were presented in
7 here as exhibits, I believe, 8A through 8H are true
8 and accurate representations of the actual reports,
9 the DMR reports, submitted by anybody listed on
10 those pages; is that correct?
11 A. Would you repeat the question?
12 Q. Sure.
13 As you sit here today, you would
14 have no opinion whether or not the information
15 contained in State's Exhibits 8A through 8H are true
16 and accurate with respect to the information
17 contained therein?
18 A. I believe they are correct.
19 Q. Well, have you ever logged reports
20 during that period of time of 1987 through 1996
21 yourself, sir?
22 A. No.
23 Q. And you never checked to determine
24 whether or not all the information contained on
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1 these forms are accurate by going back into the
2 files of all the companies listed here and
3 determining whether or not the information is
4 accurate; is that correct?
5 A. That's correct.
6 Q. So as you sit here today, you really
7 have no basis other than you think that your
8 procedures were followed; is that correct?
9 A. Well, I know the log person was
10 trained in the -- you know, how to do it.
11 Q. Well, you also admitted I think on the
12 stand that there's human error as a factor?
13 A. That's true.
14 Q. And human error can mean that certain
15 reports weren't reported; is that correct?
16 A. It's possible.
17 Q. In your 24 years in the compliance
18 department, have you ever been involved in a
19 situation where a report was mislogged?
20 A. I don't recall of any specific --
21 well, I take that back. It does happen.
22 Q. Okay. And you indicated you're in the
23 compliance departments, but is it your department's
24 responsibility to review the DMRs?
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1 A. Yes.
2 Q. And who in the department actually
3 reviews the DMRs?
4 A. The compliance specialist in that
5 department as well as the people in the field
6 operations section.
7 Q. Okay. Who was the compliance
8 specialist from the department during the years of
9 1987 through 1996?
10 A. I believe that was Jan Hopper.
11 Q. And what duties did Ms. Hopper have
12 with respect to reviewing the DMRs?
13 A. Well, she would look at the DMRs,
14 compare it to the NPDES permit to determine if
15 violations existed.
16 Q. Okay. And I take it if she didn't
17 receive a DMR report for a period of time that was
18 listed on the permit that she was supposed to do
19 something; is that correct?
20 A. Could you repeat the question?
21 Q. Sure. I'll rephrase it.
22 If she did not receive a DMR
23 report from somebody who had an NPDES permit, she
24 was supposed to report that to somebody; is that
L.A. REPORTING (312) 419-9292
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1 correct?
2 A. Not in all cases.
3 Q. Well, how about in most cases?
4 A. Well, if it appeared to be a pattern
5 of nonsubmission, then compliance inquiry letters
6 were preferred.
7 Q. Okay. Do you have any compliance
8 inquiry letters that were sent to Skokie Valley with
9 you here today?
10 A. I don't, no.
11 Q. Okay. So as we sit here today, you
12 don't think that there was a pattern of
13 noncompliance because you don't have any
14 documentation that your department took any steps to
15 move Skokie Valley to comply; is that correct?
16 MR. COHEN: Object to the form of the
17 question.
18 HEARING OFFICER SUDMAN: I think it's
19 okay. He can answer. It was kind of a
20 compound question. Could you break that up a
21 little bit?
22 MR. JAWGIEL: Sure.
23 BY MR. JAWGIEL:
24 Q. You reviewed the Skokie Valley file
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1 before coming here today, did you not?
2 A. Yes, I did.
3 Q. And you took out all the information
4 out of the Skokie Valley file that you thought was
5 pertinent to this case and gave it over to the
6 State; is that correct?
7 A. No.
8 Q. Well, did you allow the State to
9 review the file?
10 A. Yes.
11 Q. And did you in your review of the file
12 make copies for the State yourself?
13 A. Yes, of the DMR submission records.
14 Q. Okay. Did the State ask you at any
15 point in time to give them the compliance letters --
16 A. No.
17 Q. -- that you had referred to?
18 A. No.
19 Q. With respect to the permit itself,
20 sir, I believe it's Exhibit No. 1 -- if you need to
21 refer to that, please take a look at it. We're not
22 going to test your memory.
23 With respect to the permit itself,
24 the permittee in this case is Skokie Valley; isn't
L.A. REPORTING (312) 419-9292
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1 that correct?
2 A. Skokie Valley Asphalt Company,
3 Incorporated.
4 Q. So the permittee, Skokie Valley
5 Asphalt Company, Incorporated, is the one who holds
6 the permit, is that correct, in your opinion?
7 A. That's correct.
8 Q. Skokie Valley Asphalt Company, Inc. --
9 if I just call them Skokie Valley, you know what
10 we're talking about?
11 A. Yes.
12 Q. Okay. With respect to Skokie Valley,
13 it's Skokie Valley who's responsible for reporting
14 the DMRs; is that correct?
15 A. That's correct.
16 Q. The permittee is not Edwin or
17 Larry Frederick, is it?
18 A. The permittee is Skokie Valley Asphalt
19 Company.
20 Q. Okay. So with respect to -- we'll
21 call him Larry Frederick, he goes by Larry --
22 Mr. Larry Frederick wouldn't have responsibilities
23 individually for reporting the DMRs, would he?
24 A. Well, the DMRs do contain a
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1 certification that must be signed by an individual
2 such as them as to the accuracy of the DMRs and the
3 information contained in there.
4 Q. But it's not the responsibility of the
5 individual under the permit who signs the DMR to
6 submit the DMR, it's the permittee's responsibility;
7 isn't that correct?
8 A. Whoever signs the DMR has to make sure
9 that whatever is contained in the DMR is correct.
10 Q. Well, you're kind of putting the cart
11 before the horse, sir. Before we even have somebody
12 certifying the content of the DMR, there's a
13 requirement that a DMR be submitted under the
14 permit; is that correct?
15 A. That's correct.
16 Q. And based on your 24 years of
17 knowledge of the permit, the entity responsible for
18 even submitting the DMR is Skokie Valley in this
19 case; is that correct?
20 A. Yes, a representative of Skokie Valley
21 has to do the submissions.
22 Q. Well, but the responsible entity is
23 Skokie Valley to submit the DMRs whether it's signed
24 by Larry Frederick or signed by Richard Frederick or
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1 signed by someone else who is in that position, it
2 doesn't matter; is that correct?
3 A. Well, ultimately you would think an
4 individual has to submit the discharge monitoring
5 report form.
6 Q. Well, let me ask you this question
7 since you're familiar with the permit: Where in the
8 permit does it make any individual responsible who
9 is not the named permittee for submitting the DMR?
10 A. Could you repeat the question?
11 Q. Sure.
12 Where in the language of the
13 permit that was issued to Skokie Valley is there any
14 language which makes an individual responsible who
15 is not the permittee, the named permittee, for
16 filing or submitting the DMR?
17 A. Can I take a look at the --
18 Q. Sure. Go right ahead.
19 A. Okay. I'd like to refer you to
20 item 11 of special conditions attachment H.
21 Q. H did you say, sir?
22 A. Attachment H, 11B.
23 MR. JAWGIEL: May I approach the
24 witness?
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1 HEARING OFFICER SUDMAN: Sure.
2 THE WITNESS: Can I read from this?
3 BY MR. JAWGIEL:
4 Q. Sure.
5 A. It says: All reports required by
6 permits or other information requested by the agency
7 shall be signed by a person described in paragraph A
8 or by a duly authorized representative of that
9 person.
10 The person is a duly authorized
11 representative only if the authorization is made in
12 writing by person described in paragraph A and the
13 authorization specifies either an individual or
14 position responsible for the overall operation of
15 the facility from which the discharge originates
16 such as the plant manager, superintendent or -- and
17 that's where my copy stops.
18 Q. Okay. Now, maybe you're
19 misunderstanding my question. My question is not to
20 who has to authorize the DMRs. I think that's what
21 you're addressing with respect to this paragraph.
22 My question to you is -- before we
23 even get to the point of having to submit a DMR,
24 there's a requirement in the permit that a DMR be
L.A. REPORTING (312) 419-9292
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1 submitted, period, not that it be authenticated but
2 that it actually be submitted. Where in the permit
3 language does it require anyone other than the named
4 permittee to have to submit a DMR?
5 A. The NPDES permit requires a permittee
6 to submit the DMR.
7 Q. Okay. The named permittee; is that
8 correct?
9 A. It doesn't say named permittee but --
10 Q. But that's your understanding?
11 A. It says that the permittee shall
12 submit the discharge monitoring report form.
13 Q. Okay. Now, let's talk about the
14 discharge monitoring reports that are signed. Let's
15 look at Exhibit 3 just for an example. You'll see
16 that it says here in the certification between
17 identifying Richard Frederick, vice president, and
18 the date and then a signature area that: I certify
19 I am familiar with the information contained in this
20 report and that to the best of my knowledge and
21 belief such information is true, complete and
22 accurate. Is that your understanding of what the
23 certifications say, sir?
24 A. That's what it says.
L.A. REPORTING (312) 419-9292
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1 Q. The certification doesn't require the
2 signator to verify the information, it just asked
3 them to report to the best of their knowledge; isn't
4 that correct?
5 A. That's correct.
6 Q. Okay. Sir, let's talk a little bit
7 more about what we see in these DMR reports. I
8 think the reports you identified during the State's
9 case -- we went through a number of exhibits which
10 show that there was a higher level than permitted by
11 the permit itself and that's going to be the area
12 that I'm going to talk about just to get you up to
13 where I am with these questions.
14 You had indicated earlier there
15 are certain factors that can affect the levels that
16 are in the DMRs, weather can be one, technique in
17 how you take the sampling. Other factors can be
18 involved as well; is that correct?
19 A. That's correct.
20 Q. What are some of those other factors
21 that affected the DMR level reporting?
22 A. Testing procedures.
23 Q. Okay. And what else other than
24 testing procedures, weather, what else can affect
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1 those levels?
2 A. I'm not really sure.
3 Q. Have you ever worked in the field,
4 sir?
5 A. Yes, I have.
6 Q. Okay. So you've had some experience
7 with conditions that are in the field; is that
8 correct?
9 A. I've never worked in the field
10 operations section, no.
11 Q. Okay. So you've never been out in the
12 field to determine whether or not there may be other
13 factors that are actually in a site that could
14 affect the levels; is that correct?
15 A. Not while I was working at the EPA.
16 Q. Okay. Have you ever had that
17 experience?
18 A. Prior to becoming -- or prior to
19 working with the Illinois EPA, I worked at an
20 industrial waste farm treatment plant in Champaign,
21 Illinois.
22 Q. Okay. But that would be the limit of
23 your experience is a waste treatment plant in
24 Champaign, Illinois?
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1 A. Yes.
2 Q. You haven't worked in areas where
3 there is farmland necessarily adjacent to an asphalt
4 plant or anything along those lines; is that
5 correct?
6 A. That's correct.
7 Q. So as you sit here today, you wouldn't
8 know what factors may or may not affect the DMRs
9 submitted by Skokie Valley because you've never been
10 out in the field to decide whether or not there may
11 be other contributing factors other than weather and
12 the way it's tested; is that correct?
13 A. That's correct.
14 Q. Now, again, referring you back to
15 Exhibit No. 3, you'll see that there's also a note
16 in the comment section. And the DMR allows for
17 comments to explain what's in the DMR; is that
18 correct?
19 A. That's correct.
20 Q. And the whole purpose of that section
21 is so that the people who are testing can advise
22 maybe of an unusual situation that may affect the
23 reporting or whatever they want to put in there; is
24 that correct?
L.A. REPORTING (312) 419-9292
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1 A. That's correct.
2 Q. And you can see that there's a comment
3 that says: High content of total suspended solids
4 was rated very high due to amount of rain that we
5 had because of runoff of adjoining farmland field --
6 and so on and so forth -- that adjoins our property.
7 Do you see that comment?
8 A. Yes, I do.
9 Q. And that would be a situation that
10 would affect or elevate the levels reported in the
11 DMR; is that correct?
12 A. I suppose so.
13 Q. So looking at this report in and of
14 itself, would that from your experience in your
15 department raise any questions?
16 MR. COHEN: Object to the form of that
17 question.
18 MR. JAWGIEL: Should I rephrase it?
19 HEARING OFFICER SUDMAN: Yeah, please.
20 MR. JAWGIEL: Sure. No problem.
21 BY MR. JAWGIEL:
22 Q. With respect to Exhibit 3, as we look
23 at it in total, based on your experience in your
24 department, would what we see in Exhibit No. 3 cause
L.A. REPORTING (312) 419-9292
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1 your department to take any remedial action?
2 MR. COHEN: Objection to the form of
3 the question and the use of the word
4 remedial.
5 HEARING OFFICER SUDMAN: I think he
6 can answer it. If you don't know, you can
7 say you don't know.
8 THE WITNESS: Well, the NPDES permit
9 doesn't say that limits only need to be met
10 when there's not any rainfall.
11 BY MR. JAWGIEL:
12 Q. That wasn't my question, though, sir?
13 MR. JAWGIEL: And I ask that his
14 answer be struck from the record as
15 nonresponsive.
16 HEARING OFFICER SUDMAN: I agree.
17 Please answer the question. Do you need him
18 to ask again?
19 THE WITNESS: That would be helpful.
20 MR. JAWGIEL: Sure.
21 BY MR. JAWGIEL:
22 Q. At any point in time, if you don't
23 understand a question I ask, which may happen again,
24 just let me know.
L.A. REPORTING (312) 419-9292
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1 With respect to Exhibit No. 3, as
2 we see the report's data information in conjunction
3 with the comment section, based on your 24 years of
4 experience with this department would this report in
5 and of itself merit any sort of action on your
6 department's behalf?
7 A. One report on its own would not
8 usually.
9 Q. Okay. Would one report on its own
10 without the comment section that we see here in
11 Exhibit No. 3 merit any sort of action on the part
12 of your department at all?
13 A. Usually not.
14 Q. Would two reports month to month, back
15 to back merit any sort of action on the part of your
16 department in it's course of handling these DMRs?
17 A. It's possible.
18 Q. Who is that left up to to decide?
19 A. The compliance individuals that are
20 reviewing the DMRs.
21 Q. So I think it was Ms. -- what was her
22 name? I apologize.
23 A. Ms. Hopper.
24 Q. -- Ms. Hopper and the individual who
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1 was in the field; is that correct?
2 A. It's possible.
3 Q. And what, if anything, would
4 Ms. Hopper do if there were two reports
5 consecutively that showed high levels -- higher than
6 permitted by the permit?
7 A. It could consider the possibility of
8 sending a compliance inquiry letter.
9 Q. And so we don't have a compliance
10 inquiry letter here today, do we?
11 A. Not that I'm aware of.
12 Q. So based on what we have here today
13 and based on your knowledge, nothing was done by the
14 department with respect to Exhibit
15 No. 3; is that right?
16 A. That's correct.
17 Q. Was any action taken with respect to
18 Exhibit No. 9 by your department?
19 A. I don't know.
20 Q. And as a matter of course, your
21 department would have reviewed Number 9, not only
22 Ms. Hopper, but somebody else in the field as well;
23 is that right?
24 A. Yes.
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1 Q. And based on the knowledge you have
2 here that you don't know whether anything was done
3 with respect to this particular report, you would
4 have no knowledge that this
5 report -- well, strike that question.
6 Was there any action taken by your
7 department with respect to Exhibit No. 10?
8 A. I don't know.
9 Q. Was there any action taken by your
10 department with respect to Exhibit No. 11?
11 A. I don't know.
12 Q. Was there any action taken by your
13 department with respect to Exhibit No. 12?
14 A. I don't know.
15 Q. Was there any action taken on behalf
16 of your department with respect to Exhibit No. 13?
17 A. I don't know.
18 Q. Was there any action taken on behalf
19 of your department with respect to
20 Exhibit 14?
21 A. I don't know.
22 Q. Was there any action taken on behalf
23 of your department with respect to
24 Exhibit 15?
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1 A. I don't know.
2 Q. Was there any action taken on behalf
3 of your department with respect to
4 Exhibit 16?
5 A. I don't know.
6 Q. Is it your understanding, sir, you're
7 here to testify as the representative of the
8 compliance department?
9 A. Yes, that's true.
10 Q. Who in your department other than
11 yourself would know whether or not any action was
12 taken by your department other than what we have
13 here today regarding Exhibits 9 through 17?
14 A. The compliance individual that would
15 have prepared any actions.
16 Q. And they would have reported to you,
17 sir?
18 A. At that time, they would have reported
19 to Roger Callaway.
20 Q. The compliance individuals we talked
21 about, Ms. Hopper, the other individual would have
22 been Mr. Kallis?
23 A. No. Roger Callaway.
24 Q. No, the other individual who would
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1 have been in the field, was that
2 Mr. Callaway?
3 A. No.
4 Q. Okay. The individual who would have
5 been in the field with respect to the time period of
6 Exhibit Nos. 9 through 17 --
7 A. I'm not sure who was in the field
8 responsible for it at that time.
9 Q. I take it, though, based on the
10 procedures used by your department, it's your
11 understanding that each of these reports, Exhibits 9
12 through 17, were examined by your department?
13 A. Yes, that's true.
14 Q. When did you first become aware of
15 these particular levels reported in Exhibits 9
16 through 17, would it have been when you prepared
17 documentation for this case?
18 A. That's correct.
19 Q. Do you know why Skokie Valley was
20 required to have the NPDES permit?
21 A. No, I don't.
22 Q. Isn't the whole purpose behind having
23 Ms. Hopper review the DMRs is so that early
24 compliance can be adhered to; is that correct? Do
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1 you understand the question?
2 A. Yes, I do.
3 Q. Okay.
4 A. Yes, that would be a benefit.
5 Q. The whole idea behind it is that
6 Ms. Hopper will note something, send out a letter,
7 try to gain compliance as soon as possible; isn't
8 that correct?
9 MR. COHEN: Objection. That question
10 calls for speculation on the actions of what
11 Ms. Hopper might do after her review.
12 MR. JAWGIEL: He's the head of the
13 department.
14 HEARING OFFICER SUDMAN: He can answer
15 if he knows what the procedures are
16 generally.
17 THE WITNESS: Well, when we review
18 discharge monitoring report forms, we look
19 for a significant amount of compliance.
20 BY MR. COHEN:
21 Q. And how frequently do you review
22 discharge monitoring reports or NPDES permit
23 reports?
24 A. They are reviewed monthly as they come
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1 in.
2 Q. Okay. So monthly you're reviewing
3 reports for compliance; is that correct?
4 A. Yes.
5 Q. And how many reports does your
6 department receive, let's say, back in 1986? How
7 many reports do they receive, DMR reports, in any
8 given month?
9 A. I don't know the exact number.
10 Q. Would you say thousands?
11 A. I would say it would be over 2000 a
12 month.
13 Q. And how many people do you have
14 working on reviewing the DMR reports other than
15 Ms. Hopper?
16 A. I don't know at that time.
17 Q. I take it -- you identified one
18 individual who logs the reports. Was it only one
19 person who would log over 2000 reports a month?
20 A. That's correct.
21 Q. Now, how many field representatives
22 did you have basically in the late '80s, early '90s?
23 A. I don't know.
24 Q. Getting back to what we were talking
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1 about, isn't it the policy and procedures as you
2 understand them of your department -- the whole
3 purpose behind reviewing the DMRs is to send out a
4 compliance letter if the DMR is not in compliance so
5 that you can gain compliance from the permittee as
6 soon as possible?
7 A. That's correct.
8 Q. When did you gather these reports for
9 the State?
10 A. Within the last month or so.
11 Q. Would it be fair to say that your
12 department wasn't too concerned about the compliance
13 of Skokie Valley with respect to these reports until
14 this case?
15 MR. COHEN: Objection, augmentative.
16 HEARING OFFICER SUDMAN: Sustained.
17 BY MR. JAWGIEL:
18 Q. You said it was unusual for there to
19 be identical information on a DMR from a permittee;
20 is that correct?
21 A. Yes.
22 Q. Have you reviewed the series of DMRs
23 submitted by anyone else in preparation for your
24 testimony today other than Skokie Valley?
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1 A. Could you repeat the question, please?
2 Q. Sure.
3 In preparation for your testimony
4 here today, have you reviewed the series of DMRs
5 submitted by any other company other than Skokie
6 Valley?
7 A. Yes, in the normal course of work.
8 Q. Have you literally reviewed all the
9 reports and determined whether or not they're
10 identical?
11 A. No, not all of the reports, but I am
12 familiar with discharge monitoring reports.
13 Q. Well, my question to you is then, sir,
14 you indicated it is unusual but have you -- well,
15 let me ask you this question: Is it part of your
16 responsibility in the position you hold in your
17 department to review reports to determine whether or
18 not the data contained therein is identical to any
19 other DMR report submitted by that particular
20 company?
21 A. It's not my specific responsibility.
22 Q. Is there anybody in the department who
23 has that responsibility?
24 A. Well, the individuals that review the
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1 reports would look for something like that.
2 Q. Okay. And the individual who would
3 have reviewed the reports then would have sent out a
4 compliance letter if they thought there was
5 something suspicious about the reporting if it was
6 identical; is that correct?
7 A. I'm assuming so.
8 Q. Do you know whether or not your
9 department thought that the DMRs submitted by Skokie
10 Valley with respect to the ones that had identical
11 information was suspicious?
12 A. Back in the late '80s?
13 Q. I was talking about the period of time
14 between the late '80s to the early '90s as counsel
15 has framed this period of time?
16 A. I was not aware of it at that time.
17 Q. Did you become aware of it after this
18 case for the very first time?
19 A. Yes.
20 Q. Do you have any information which
21 would lead you to believe that Larry Frederick, also
22 known as Ed Frederick, actually participated in
23 taking these samples?
24 A. I don't.
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1 Q. Do you have any information whether or
2 not Richard Frederick actually took the samples that
3 are reported in the DMR?
4 A. I don't know that either.
5 Q. Do you have any information that
6 Larry Frederick tested the samples that were
7 submitted in the DMR for Skokie Valley?
8 A. From reviewing the files, I know that
9 the samples were performed -- or the tests were
10 performed at Northshore Sanitary District.
11 Q. And outside service?
12 A. Yes.
13 Q. And are you familiar with that
14 particular service?
15 A. Just to the extent that they're also a
16 NPDES permittee.
17 Q. I take it that they also do testing
18 for a variety of companies other than Skokie Valley;
19 is that correct?
20 A. Apparently so.
21 Q. Are you aware of any attempts by
22 Skokie Valley to correct any reports that may have
23 been duplicative?
24 A. No, I'm not.
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1 Q. Did you look for that information when
2 you reviewed this file?
3 A. I did not see any reports that had
4 been corrected.
5 Q. That wasn't my question, though, sir.
6 My question was did you look for that information?
7 A. I reviewed the information in our
8 files. I did not see it.
9 Q. Did you look for information as far as
10 correcting reports -- reports being corrected or
11 communication regarding correcting or anything along
12 those lines?
13 A. No, I didn't.
14 Q. Do you have a chemical background at
15 all, sir?
16 A. No, I don't.
17 Q. What is your education?
18 A. Well, I have a bachelor of science
19 degree in environment biology.
20 Q. Okay. When did you receive that?
21 A. In 1976.
22 Q. Did you go on to an advanced degree in
23 environmental biology?
24 A. No, I didn't.
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1 Q. Have you taken any continuing
2 education courses with respect to environmental
3 biology?
4 A. No, I haven't.
5 Q. Is there any environmental impact from
6 the information -- well, strike that.
7 Would you agree with me, sir, that
8 you don't know if there was any environmental impact
9 in the levels reported in the DMRs from Exhibits
10 9 through 17?
11 A. I only know it exceeds the permit
12 limits.
13 Q. So as you sit here today, you don't
14 have an opinion that there was actually an
15 environmental impact based on the data in those
16 exhibits; is that correct?
17 A. I don't have any information about
18 that.
19 Q. If a company goes out of business, is
20 it still required to file DMRs under a permit?
21 A. It's my understanding they are until
22 the permit gets terminated.
23 Q. And how can a permit get terminated?
24 A. A letter is submitted usually to our
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1 permit section who processes the termination
2 request.
3 Q. Or they can allow it to expire as
4 well, is that correct, the permittee allow the
5 permit to expire?
6 A. That's my understanding, yes.
7 Q. Are you aware of any cases where
8 Skokie Valley was found guilty of filing erroneous
9 DMR reports?
10 A. No.
11 Q. Would you agree with this statement,
12 sir, that the Illinois EPA would have never brought
13 charges against Skokie Valley for failure to file
14 DMR reports if the incident at the Avon drainage
15 ditch didn't occur?
16 MR. COHEN: Objection. This witness
17 cannot testify for the Illinois EPA.
18 MR. JAWGIEL: I thought he was a
19 representative of the Illinois EPA? Maybe
20 I'm under the wrong --
21 MR. COHEN: Well, under that form of
22 the question --
23 HEARING OFFICER SUDMAN: You were
24 asking him if he could what?
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1 MR. JAWGIEL: My question was isn't it
2 true, sir, in your opinion would charges have
3 been brought against Skokie Valley for
4 failing to file DMR reports if the release at
5 the Avon ditch did not occur.
6 HEARING OFFICER SUDMAN: I really
7 don't think he's in a capacity to know that.
8 MR. JAWGIEL: Well, maybe I'll ask for
9 an offer of proof.
10 HEARING OFFICER SUDMAN: Okay. Yes.
11 Absolutely.
12 MR. JAWGIEL: May I ask some questions
13 with respect to an offer of proof?
14 HEARING OFFICER SUDMAN: Yes.
15 BY MR. JAWGIEL:
16 Q. Sir, you've certainly had
17 communications with the attorneys --
18 MR. COHEN: Excuse me. If you want to
19 make an offer of proof, you can make the
20 offer of proof. It doesn't come by way of
21 questions to the witness.
22 MR. JAWGIEL: It certainly does. An
23 offer of proof allows me to ask questions of
24 the witness to establish a foundation to
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1 bring in evidentiary material, which I will
2 later attempt to submit, based on the voir
3 dire of this particular witness outside the
4 evidence that will be submitted in this case.
5 HEARING OFFICER SUDMAN: Okay. He may
6 make it as an offer of proof.
7 MR. COHEN: Your Honor, if I may
8 finish my objection?
9 HEARING OFFICER SUDMAN: Yes.
10 MR. COHEN: The question contradicts
11 the history of this case. There was a
12 complaint filed in this case long before the
13 first amended complaint and the second
14 amended complaint. The first amended
15 complaint later adds the water pollution
16 count. I just want to state that for the
17 record.
18 HEARING OFFICER SUDMAN: Okay. You
19 may make your offer of proof.
20 MR. JAWGIEL: Thank you.
21 BY MR. JAWGIEL:
22 Q. Sir, I'm just going to ask you a
23 series of questions; this may or may not go on the
24 record. You had a series of conversations I take it
L.A. REPORTING (312) 419-9292
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1 with representatives of the State; is that correct?
2 MR. COHEN: Object to the form of the
3 question, no time frame, no content.
4 MR. JAWGIEL: I'll rephrase it.
5 HEARING OFFICER SUDMAN: Okay. Thank
6 you.
7 BY MR. JAWGIEL:
8 Q. With respect to this case that we're
9 here for today, you've had a series of conversations
10 with representatives of the State, have you not?
11 MR. COHEN: Objection again, no time
12 frame. We're talking about a time period of
13 over ten years.
14 HEARING OFFICER SUDMAN: Would you
15 like to be a little more specific?
16 MR. JAWGIEL: Sure.
17 BY MR. JAWGIEL:
18 Q. When did you have your first
19 conversation, if any conversations, with the State
20 regarding the case that we're here for today?
21 A. May I ask for a clarification? What
22 do you mean by the State?
23 Q. Well, this case is being brought by
24 the People of the State of Illinois. They have
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1 representatives who are attorneys out of the
2 Attorney General's Office and various assistants.
3 MR. COHEN: Object to the form of the
4 question. The witness works for the State of
5 Illinois.
6 MR. JAWGIEL: Well, now he is their
7 client.
8 HEARING OFFICER SUDMAN: Right. It
9 was confusing. He didn't understand who he
10 meant by the State. I think he was just
11 explaining.
12 MR. JAWGIEL: Yeah. I'm just trying
13 to clarify the State of Illinois represented
14 by the Attorney General's Office and the
15 various --
16 HEARING OFFICER SUDMAN: So the
17 Attorney General's Office basically.
18 MR. JAWGIEL: Basically.
19 THE WITNESS: A month or so ago in
20 preparation for this.
21 BY MR. JAWGIEL:
22 Q. Okay. And in preparation for this
23 case, you were the person from your understanding
24 who was going to gather information regarding the
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1 DMRs; is that correct?
2 A. Regarding the DMR submissions,
3 nonsubmissions.
4 Q. Okay. And was it your understanding
5 that based on your conversations with various
6 representatives from the Attorney General's Office
7 that the whole purpose behind this cause of action
8 was really the discharge into the Avon drainage
9 ditch in Libertyville?
10 A. No.
11 Q. Did they discuss that with you at all?
12 A. No, not at that time.
13 Q. Have they ever discussed that with
14 you?
15 A. I've been made aware of it.
16 Q. Okay. When?
17 A. Well, to review the information in the
18 files.
19 Q. Okay. But when, a month ago, two
20 months ago?
21 A. Within the last couple of weeks.
22 MR. JAWGIEL: Okay. He's only talked
23 about this for the past couple of weeks, your
24 Honor. I'm not going to go into that line of
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1 questioning.
2 HEARING OFFICER SUDMAN: Okay.
3 MR. JAWGIEL: I can't seem to --
4 obviously, this case has been around much
5 longer than a couple of weeks as we all have
6 well-labored through, so I will withdraw that
7 series of questions.
8 HEARING OFFICER SUDMAN: So we're
9 ending the --
10 MR. JAWGIEL: Right. I'll end the
11 offer as well. Thank you.
12 HEARING OFFICER SUDMAN: Okay.
13 BY MR. COHEN:
14 Q. Based on your conversations with the
15 State, is it your understanding there was some sort
16 of discharge into the Avon drainage ditch in
17 Libertyville?
18 MR. COHEN: Objection, your Honor.
19 He's asking for communications with his
20 attorney. It has no relevance to what this
21 witness is here to testify about and no
22 bearing on what he's already testified to.
23 HEARING OFFICER SUDMAN: Didn't you
24 just ask him that?
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1 MR. JAWGIEL: No. It's a different
2 question. My question now was based on your
3 conversations with the State, is it your
4 understanding that there was a release of
5 material into the Avon drainage ditch?
6 HEARING OFFICER SUDMAN: Well, I
7 thought he had already answered that?
8 MR. JAWGIEL: Well, that was in the
9 offer of proof. I'm now going back into my
10 case -- or the cross-examination and I am
11 going to put that portion of it on the
12 record.
13 HEARING OFFICER SUDMAN: You can
14 answer it.
15 THE WITNESS: I wasn't specifically
16 talking to about that.
17 BY MR. JAWGIEL:
18 Q. Do you have any understanding
19 whatsoever that there was a release of some sort of
20 material into the Avon drainage ditch in
21 Libertyville?
22 MR. COHEN: Object to the form of the
23 question, no time frame.
24 MR. JAWGIEL: That lead to this case.
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1 HEARING OFFICER SUDMAN: What was the
2 question? Could you repeat the question?
3 MR. JAWGIEL: Sure. I'll repeat the
4 question.
5 BY MR. JAWGIEL:
6 Q. Is it your understanding, sir, that
7 one of the complaints of the State is that there was
8 a release into the Avon drainage ditch in
9 Libertyville? Do you have that understanding as you
10 sit here today?
11 A. I do now, but I didn't at the time I
12 was preparing for the DMR submission records.
13 Q. But that's not my question. You do
14 now? When did you first gain that understanding?
15 A. Probably about a week ago when I was
16 reviewing files in preparation of this.
17 Q. Fair enough.
18 And based on your review of the
19 DMRs and knowing that there was a release into the
20 Avon drainage ditch, would the failure to file the
21 DMRs by Skokie Valley as alleged by the State have
22 caused the Avon drainage ditch discharge in your
23 opinion?
24 MR. COHEN: Objection, calls for
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1 speculation.
2 HEARING OFFICER SUDMAN: Sustained.
3 BY MR. JAWGIEL:
4 Q. Well, in your review of the DMRs --
5 and I think you consider yourself an expert in
6 reviewing DMRs; is that correct?
7 A. Yes.
8 Q. Okay. And being an expert in
9 reviewing DMRs and after reviewing DMRs that were
10 submitted by Skokie Valley and the ones that weren't
11 submitted, obviously, you couldn't review those, but
12 in reviewing the file of Skokie Valley in
13 preparation for your testimony here today, is there
14 anything in the DMR reports to you that would link
15 what was discharged in the Avon drainage ditch to
16 anything in the reports?
17 MR. COHEN: Object to the form of the
18 question. I certainly don't understand it.
19 HEARING OFFICER SUDMAN: I'm going to
20 allow it, but you might want to --
21 MR. JAWGIEL: Well, let's see if he
22 understands it. If he doesn't --
23 HEARING OFFICER SUDMAN: Did you get
24 that -- in your professional opinion he's
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1 asking you.
2 THE WITNESS: I'm not aware of the
3 connection.
4 HEARING OFFICER SUDMAN: Okay.
5 BY MR. JAWGIEL:
6 Q. Fair enough.
7 If Skokie Valley no longer holds
8 an NPDES permit, is there any chance that they will
9 fail to report a DMR in the future?
10 MR. COHEN: Objection, calls for
11 speculation.
12 BY MR. JAWGIEL:
13 Q. In your experience.
14 HEARING OFFICER SUDMAN: Could you
15 repeat the question?
16 MR. JAWGIEL: Sure. I'll rephrase it.
17 HEARING OFFICER SUDMAN: Could you?
18 Thank you.
19 BY MR. JAWGIEL:
20 Q. Has it been your experience, sir, in
21 the past 24 years that if a company no longer holds
22 an NPDES permit that they are not required to file a
23 DMR?
24 A. Once the permit expires, they're not
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1 required to.
2 Q. So if Skokie Valley, in your opinion,
3 no longer has an NPDES permit, they're not required
4 as we sit here today to file a DMR; is that correct?
5 A. That's correct.
6 Q. And in your experience and expertise,
7 Skokie Valley would be required to file a DMR until
8 an NPDES permit is granted to them if ever in the
9 future?
10 A. That's correct.
11 Q. Does the permit require the permittee
12 to maintain records for a certain period of time
13 with respect to the DMRs?
14 A. Yes.
15 Q. How long?
16 A. I need to refer --
17 Q. Take a look. I think it's Exhibit 1.
18 A. Three years from the effective date of
19 the permit they need to maintain their records.
20 Q. Three years from the effective date of
21 the permit; is that correct?
22 A. I can read what it says.
23 Q. Sure. Please.
24 HEARING OFFICER SUDMAN: Would you
L.A. REPORTING (312) 419-9292
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1 state where you're reading from, the
2 paragraph?
3 THE WITNESS: Exhibit 1, page 4,
4 attachment H, item 10B.
5 HEARING OFFICER SUDMAN: Thank you.
6 THE WITNESS: The permittee shall
7 retain all records of monitoring information,
8 including all calibration and maintenance
9 records and all original script chart
10 recording for continuous monitoring
11 instrumentation, copies of all reports
12 required by this permit and records of all
13 data used to complete the application for
14 this permit for a period of at least three
15 years from the date of this permit,
16 management report or application. The period
17 may be extended by request of the agency at
18 any time.
19 BY MR. JAWGIEL:
20 Q. Okay. Now with respect to the date of
21 this permit, is it your understanding the date is
22 when the permit was issued or the date that the
23 permit expires based on your expertise?
24 A. It would be from effective date of the
L.A. REPORTING (312) 419-9292
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1 permit.
2 Q. So the date that it was issued; is
3 that correct?
4 A. Well, no, that's not correct. It
5 would be from the date of when those records
6 became --
7 Q. Okay. So in 1987, Skokie Valley would
8 have been required to hang on to those documents
9 until 1990 based on your interpretation?
10 A. Yes.
11 Q. In 1997, Skokie Valley would have been
12 required to hang on to those documents until 2000?
13 A. Yes.
14 Q. Beyond that, there's no expectation;
15 is that correct?
16 A. Unless specifically requested by the
17 agency.
18 Q. Do you have any information that your
19 agency requested Skokie Valley to maintain your DMRs
20 any time longer than the three-year period listed in
21 a permit?
22 A. I don't.
23 Q. Have you ever after you've taken
24 employment with your department ever -- did the
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1 person actually stamp the reports?
2 A. No.
3 Q. You were never the person that
4 actually logged the information either; is that
5 correct?
6 A. No.
7 MR. JAWGIEL: If I may have one
8 minute?
9 HEARING OFFICER SUDMAN: (Indicating.)
10 BY MR. JAWGIEL:
11 Q. Sir, if we look at Exhibit 8, do you
12 see 8A -- well, actually let's go to 8B. Do you see
13 8B there, sir?
14 A. Yes.
15 Q. Do you see that Skokie Valley is
16 listed somewhere about the top -- actually top third
17 or so of the page; is that correct?
18 A. That's correct.
19 Q. You also see, though, at the bottom
20 half of the page a company by Bimet Corp, dash,
21 Morris. Do you see that there, sir?
22 A. Yes.
23 Q. And we see that they didn't report any
24 DMRs until November, is that correct, for this
L.A. REPORTING (312) 419-9292
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1 particular year?
2 A. No. It looks like they submitted in
3 October.
4 Q. Okay. October. Let's say October.
5 A. October DMR, November.
6 Q. Okay. And was there any action taken
7 by your department with respect to this company?
8 MR. COHEN: Objection, irrelevant.
9 MR. JAWGIEL: I think it goes clearly
10 to whether or not this is a witch-hunt. I
11 want to know whether or not these documents
12 are enforced and what's the purpose behind
13 these documents.
14 The State is holding this out as
15 the foundation for bringing allegations
16 against my client. I want to know whether or
17 not they brought these allegations against
18 everybody or are we being picked out.
19 HEARING OFFICER SUDMAN: Well, repeat
20 your question again.
21 MR. JAWGIEL: Sure.
22 There's a line there for Bimet,
23 B-I-M-E-T, Corp, dash, Morris and their first
24 DMR as we've established through the
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1 testimony was filed in October of that year,
2 and my question was did his department take
3 any action against that particular company.
4 HEARING OFFICER SUDMAN: And your
5 objection was --
6 MR. COHEN: It's irrelevant. There's
7 certainly insufficient foundation to ask this
8 witness the question.
9 MR. JAWGIEL: He was the head of the
10 department.
11 HEARING OFFICER SUDMAN: Well, I'll
12 let you ask that one. Is this a whole line
13 of questioning on --
14 MR. JAWGIEL: Well, there's a couple
15 of companies that we see in the same
16 situation. I can ask him in whole.
17 HEARING OFFICER SUDMAN: You can ask
18 in general.
19 MR. COHEN: May I make a general
20 objection?
21 HEARING OFFICER SUDMAN: Yes.
22 MR. COHEN: In the format that he's
23 asking the question, there's no foundation
24 laid because there's no evidence in the
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1 record as to when the permit he's asking
2 about was issued and what the particular
3 requirement of that permit is to know whether
4 there is a violation just by looking at the
5 log.
6 HEARING OFFICER SUDMAN: Actually,
7 I've decided I'll allow his answer as an
8 offer of proof.
9 MR. JAWGIEL: Well, now, let's take a
10 step back. If that's the State's position,
11 let's look at Cartex in Addison. They
12 reported something, I believe, in May and
13 then didn't report until again in November.
14 So I think that clearly shows a nice gap of
15 time of about five months or so where there
16 was no reporting. I want to know whether or
17 not Cartex was -- were any actions taken by
18 the department against Cartex for these
19 violations?
20 HEARING OFFICER SUDMAN: Well, I don't
21 think it's relevant, but I'm going to allow
22 you to ask generally if he knows about the
23 legal status of those companies. But I mean,
24 I don't think it's relevant to this case.
L.A. REPORTING (312) 419-9292
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1 That's why I'm allowing you to ask one
2 question as an offer of proof, one or two.
3 BY MR. JAWGIEL:
4 Q. Sir, if we look through Exhibit 8 in
5 its entirely, we see spots here where various other
6 companies other than Skokie Valley had failed to
7 submit DMR reports for various periods of time.
8 Some of them had filed DMRs and
9 failed to do so for a while and then filed another
10 one. Are you aware of any of these companies being
11 prosecuted for the failure to file their DMRs other
12 than Skokie Valley?
13 MR. COHEN: I have the same objection,
14 your Honor.
15 MR. JAWGIEL: Yeah, we'll note the
16 objection.
17 HEARING OFFICER SUDMAN: Objection
18 noted.
19 THE WITNESS: I'm not aware of it
20 today.
21 BY MR. JAWGIEL:
22 Q. Okay.
23 A. But there could be an explanation why.
24 Q. I'm not asking you for an explanation,
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1 though, sir. I'm asking you to answer the question.
2 MR. JAWGIEL: That's all I have for
3 this witness. Thank you for your time.
4 HEARING OFFICER SUDMAN: Thank you.
5 Redirect?
6 MR. COHEN: Your Honor, no redirect.
7 Mr. Garretson was kind enough to come from
8 Springfield. I would ask that he be excused.
9 HEARING OFFICER SUDMAN: If there are
10 no further questions for Mr. Garretson, you
11 may be excused.
12 THE WITNESS: Thank you.
13 (Witness excused.)
14 MR. COHEN: Also, your Honor, I would
15 ask for a break.
16 HEARING OFFICER SUDMAN: Yes, I agree.
17 We will take a short recess of about five
18 minutes, maybe ten.
19 MR. COHEN: Okay.
20 (Whereupon, after a short
21 break was had, the following
22 proceedings were held
23 accordingly.)
24 HEARING OFFICER SUDMAN: We will go
L.A. REPORTING (312) 419-9292
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1 back on the record with the People's next
2 witness.
3 MR. MURPHY: Your Honor, the State
4 calls Chris Kallis to the stand.
5 HEARING OFFICER SUDMAN: You may sit
6 over here, Mr. Kallis. The court reporter
7 will swear you in.
8 (Witness sworn.)
9 MR. JAWGIEL: Your Honor, can you just
10 note my objection of having Mr. Kallis
11 testify regarding the source of the
12 contamination in the Avon drainage ditch? At
13 this point in time -- unless you want me to
14 bring it contemporaneous to --
15 HEARING OFFICER SUDMAN: No. I prefer
16 you just make a standing objection now.
17 Thank you.
18 MR. JAWGIEL: Okay. That way we
19 don't --
20 HEARING OFFICER SUDMAN: Thank you. I
21 appreciate that.
22 MR. COHEN: If I may just inquire, is
23 that the same one from the motion in limine?
24 MR. JAWGIEL: Right, the motion in
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1 limine just so I don't have to keep jumping
2 up and down like a crazy man.
3 HEARING OFFICER SUDMAN: Thank you.
4 MR. MURPHY: Are all of the objections
5 in the motion in limine?
6 MR. JAWGIEL: Right.
7 MR. MURPHY: Okay.
8 MR. JAWGIEL: Yeah, we'll stand it
9 through the testimony.
10 HEARING OFFICER SUDMAN: Yes. Thank
11 you.
12 WHEREUPON:
13 CHRIS KALLIS
14 called as a witness herein, having been first duly
15 sworn, deposeth and saith as follows:
16 D I R E C T E X A M I N A T I O N
17 BY MR. MURPHY:
18 Q. Please state your name and spell your
19 last name for the record?
20 A. Chris Kallis, K-A-L-L-I-S.
21 Q. Who is your employer?
22 A. Illinois Environmental Agency.
23 Q. How long have you been employed with
24 the Illinois EPA?
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1 A. Approximately 22 years.
2 Q. Which bureau do you currently work for
3 at Illinois of EPA?
4 A. The Bureau of Water.
5 Q. How long has that bureau been known by
6 that name?
7 A. I believe about -- and I get my times
8 off -- about 12 years.
9 Q. Was there a different organization
10 prior to that time?
11 A. What the bureau of water is is a
12 consolidated bureau of what was once divisions.
13 There was the division of water pollution control
14 and the division of public water supply. What the
15 bureau of water did is it consolidated them under
16 one bureau. I work for the division of water
17 pollution control.
18 Q. Thank you.
19 What is your job title at Illinois
20 EPA?
21 A. Environmental protection specialist.
22 Q. How long have you been an environment
23 protection specialist?
24 A. About 20 years.
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1 Q. Okay. Can you briefly describe for
2 the Board your duties as an environmental protection
3 specialist for the Illinois EPA?
4 A. My duties are to conduct inspections
5 and investigations to ensure compliance with the
6 Illinois Environmental Protection Act and Title 35
7 concerning water pollution.
8 Q. Okay. In your experience in doing
9 that, have you had -- or during your time doing
10 that, have you had some experience with what's known
11 as the NPDES program?
12 A. Yes.
13 Q. What does that acronym stand for?
14 A. National Pollutant Discharge
15 Elimination System.
16 Q. And how does that program function?
17 A. It functions by issuing NPDES permits
18 to any entity, industry, municipality or otherwise
19 that has the potential of discharging contaminants
20 to waters of the State.
21 Q. Does it involve water quality
22 standards?
23 MR. JAWGIEL: I'll object to the
24 leading nature.
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1 HEARING OFFICER SUDMAN: I think he's
2 just laying some background. I'll allow it.
3 THE WITNESS: It was put into place to
4 ensure water quality standards.
5 BY MR. MURPHY:
6 Q. Can you describe what types of water
7 quality standards there are?
8 A. Under the statute there are water
9 quality standards that are based on numerical
10 concentrations of contaminants and there's also
11 standards involving visual observations such as
12 oils, grease, turbidity, odor.
13 Q. Okay. Thank you.
14 Can you briefly describe your
15 education?
16 A. I have a bachelor's degree from
17 Northeastern University.
18 Q. What is the bachelor's degree in?
19 A. Geography and environmental science --
20 or the study.
21 Q. Is that a bachelor of science?
22 A. No.
23 Q. A bachelor of arts?
24 A. Yeah.
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1 Q. When did you receive that degree?
2 A. I received it in late 1977.
3 Q. Have you received any training from
4 Illinois EPA or any other agency during your time
5 with Illinois EPA?
6 A. I have received training from Illinois
7 EPA and from USEPA.
8 Q. And that is concerning -- was that
9 training concerning water pollution laws and
10 regulations?
11 MR. JAWGIEL: Again, I'm going to
12 object to the leading nature.
13 HEARING OFFICER SUDMAN: This is just
14 background information. I'll allow it just
15 so we can get through it more quickly.
16 THE WITNESS: Thank you.
17 The training that was done by
18 Illinois EPA primarily concerned waste water
19 treatment plants. It was a correspondence
20 course that was given at the time I started
21 the agency to all inspectors that were
22 starting with the agency to increase their
23 ability of inspecting waste water treatment
24 facilities.
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1 Concerning the NPDES permits, I
2 have received some training from USEPA or at
3 least sponsored by USEPA concerning storm
4 water, the NPDES storm program.
5 BY MR. MURPHY:
6 Q. Okay. Switching now to the matter
7 that brings us all here today, are you familiar with
8 the site formerly known as Skokie Valley Asphalt in
9 Grayslake that is the subject of this proceeding?
10 A. Yes.
11 Q. Okay. How are you familiar with that
12 site?
13 A. Through the years I've inspected them
14 many times.
15 Q. Can you give us some kind of time
16 frame when you first started going there and how
17 long those inspections lasted over time?
18 A. I believe I first started inspecting
19 Skokie Valley Asphalt in the early '80s.
20 Q. Why were you going to Skokie Valley
21 Asphalt?
22 A. Initially it was to confirm what was
23 there. We had a system, a list of many facilities,
24 some that had NPDES permits and some that had
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1 pending NPDES permits, and my job was to go to these
2 facilities and do a permit verification and also to
3 determine compliance.
4 Q. Okay. Were there any other reasons
5 later on why you would go to Skokie Valley Asphalt?
6 MR. JAWGIEL: Again, I'm going to
7 object to the time frame with respect to
8 when.
9 HEARING OFFICER SUDMAN: Would you
10 like to --
11 MR. MURPHY: Well, he's already said
12 during the 1980s.
13 HEARING OFFICER SUDMAN: Oh, during
14 the 1980s?
15 MR. JAWGIEL: Okay. If it's limited
16 to 1980, that's fine.
17 HEARING OFFICER SUDMAN: Okay.
18 THE WITNESS: In the 1980s, yes, I did
19 inspect Skokie Valley Asphalt as a follow-up
20 to citizen complaints.
21 BY MR. MURPHY:
22 Q. What were the citizen complaints about
23 generally?
24 MR. JAWGIEL: Your Honor, I'm going to
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1 object as to hearsay.
2 HEARING OFFICER SUDMAN: Well --
3 MR. JAWGIEL: It's pure hearsay.
4 MR. MURPHY: It's not offered for the
5 truth of the matter as certain, your Honor.
6 It's an offer to see why he's going to the
7 site.
8 MR. JAWGIEL: Well, along with it, it
9 has no relevance. The time frame of the
10 complaint starts in 1988. We don't have --
11 we have no relevance or any sort of causal
12 connection between what they're eliciting
13 from him or not.
14 He's already said he's been there
15 since the 1980s until -- they haven't
16 established when, but the bottom line is
17 we're there. The foundation has been laid.
18 Let's move on.
19 HEARING OFFICER SUDMAN: Your
20 objection is noted, but I'm going to allow it
21 because it does explain why he was there.
22 MR. JAWGIEL: But, your Honor, if I
23 may just for the record, it has no relevance
24 of why he was there because that's not part
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1 of the complaint.
2 MR. MURPHY: It is part of the
3 complaint. It runs towards violations also
4 relevant for Sections 33C and 42H.
5 HEARING OFFICER SUDMAN: I agree. I'm
6 going to allow it.
7 THE WITNESS: Yes. In around 1987, I
8 did inspect Skokie Valley Asphalt as a result
9 of complaints of water quality violations in
10 the Avon drainage ditch.
11 BY MR. MURPHY:
12 Q. Okay. Now, you mentioned that the
13 inspections you performed happened in the 1980s.
14 Did you also go there after that?
15 A. Yes.
16 Q. Okay. So into the 1990s?
17 A. Yes.
18 Q. What type of business is located at
19 the Skokie Valley Asphalt site?
20 A. As long as I've been inspecting Skokie
21 Valley Asphalt, they've used that site for storage
22 of liquid asphalt and also as a transportation
23 facility, a dispatch transportation facility.
24 That's where they seemed to have kept all their
L.A. REPORTING (312) 419-9292
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1 trucks and so on.
2 Q. Were there any notable activities at
3 the site that were of interest to you as an
4 inspector?
5 MR. JAWGIEL: I'm going to object as
6 to the time frame.
7 MR. MURPHY: In the 1980s.
8 HEARING OFFICER SUDMAN: Thank you.
9 MR. JAWGIEL: I'm going to object to
10 relevance.
11 HEARING OFFICER SUDMAN: Overruled.
12 THE WITNESS: Yes. They had a
13 treatment system for storm water runoff that
14 consisted of an oil separator in the two-cell
15 lagoon system on their site.
16 BY MR. MURPHY:
17 Q. Who were the owners of Skokie Valley
18 Asphalt, if you know?
19 A. At the time, the owners were --
20 MR. JAWGIEL: I'm going to object as
21 to speculation, your Honor. This is a
22 corporation. There are owners, the
23 shareholders.
24 HEARING OFFICER SUDMAN: He said if he
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1 knows. He was a site inspector. I mean, I'm
2 going to allow him to answer it.
3 THE WITNESS: To the best of my
4 knowledge, the owners were the Frederick
5 brothers.
6 BY MR. MURPHY:
7 Q. Do you know their first names?
8 A. Yes. Richard and Larry -- or Edwin.
9 I know that it's both Edwin and Larry.
10 Q. Did you ever know Skokie Valley
11 Asphalt to have operated under a different name?
12 A. Yes.
13 Q. What was that different name?
14 A. Liberty Asphalt.
15 MR. JAWGIEL: I'm going to object as
16 to speculation with respect to the
17 relationship and the corporate structure
18 between Libertyville Asphalt and Skokie
19 Valley unless there's something else to
20 establish that.
21 There are two separate entities
22 and that hasn't been established here, so he
23 hasn't laid proper foundation for that
24 question.
L.A. REPORTING (312) 419-9292
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1 HEARING OFFICER SUDMAN: Would you
2 like to respond to that, Mr. Murphy?
3 MR. MURPHY: Sure. I asked him if he
4 knew if the business, Skokie Valley Asphalt,
5 ever operated under a different name and he
6 said he knew and he gave me an answer.
7 MR. JAWGIEL: But he hasn't
8 established the foundation of how me gained
9 that knowledge. There has to be a foundation
10 how he gained the knowledge that Skokie
11 Valley operated under a different name under
12 that corporate structure.
13 HEARING OFFICER SUDMAN: I don't think
14 we need that at this point. He just asked
15 him if he knew if it operated under a
16 different name. I'll allow it to stand as it
17 is.
18 MR. MURPHY: Thank you.
19 BY MR. MURPHY:
20 Q. Are you familiar with the area
21 surrounding the former Skokie Valley Asphalt site?
22 A. Yes.
23 Q. Okay. And how are you familiar with
24 the area surrounding the former Skokie Valley
L.A. REPORTING (312) 419-9292
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1 Asphalt site?
2 A. Just from inspecting Skokie Valley
3 Asphalt and being the primary inspector for
4 Lake County for dozens of years.
5 Q. So these inspections occurred during
6 the same time frame that you inspected the actual
7 Skokie Valley Asphalt site?
8 A. Yes.
9 Q. And that was through the '80s and
10 '90s, I believe?
11 A. Yes.
12 Q. Thank you.
13 What did your inspections mainly
14 deal with at the Skokie Valley Asphalt site and the
15 surrounding area?
16 A. They mainly dealt with their two-cell
17 lagoon system, which was the primary source of any
18 discharge from them during those times.
19 Q. And as a regulatory matter, why was
20 that significant?
21 A. Well, according to their NPDES permit
22 application, it was the main source of their
23 discharge.
24 Q. Were you investigating violations of
L.A. REPORTING (312) 419-9292
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1 their NPDES permit?
2 A. In 1987, the first time.
3 Q. Were you ever investigating anything
4 else?
5 A. Before that, it was primarily permit
6 verification.
7 Q. What about water quality violations?
8 MR. JAWGIEL: Your Honor, if I may,
9 he has a notepad that he's referring to on
10 the desk and I ask that that be removed.
11 HEARING OFFICER SUDMAN: Okay. Thank
12 you. I also ask that that be produced to us
13 so we can review it.
14 THE WITNESS: It's a personal notepad,
15 your Honor.
16 HEARING OFFICER SUDMAN: Pardon me?
17 THE WITNESS: It's a personal notepad,
18 your Honor.
19 MR. MURPHY: They can see it. I've
20 got no problem with them seeing it.
21 HEARING OFFICER SUDMAN: Okay. Show
22 him the page you were looking at.
23 MR. MURPHY: I'm just asking if --
24 THE WITNESS: Sir, sir -- I would like
L.A. REPORTING (312) 419-9292
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1 my personal notepad back, your Honor. Those
2 are personal notes.
3 HEARING OFFICER SUDMAN: Were you
4 reviewing that during your testimony that you
5 had given?
6 THE WITNESS: I just referred as a
7 date. I did write dates down.
8 MR. JAWGIEL: He's referring to it, so
9 we're going to take a look at it.
10 THE WITNESS: Your Honor, this is a
11 personal notepad; there are personal notes.
12 HEARING OFFICER SUDMAN: I understand
13 that but when you bring it here --
14 THE WITNESS: Okay. I got you.
15 MR. MURPHY: Can I ask if he's going
16 to need to refer to that during his --
17 HEARING OFFICER SUDMAN: Yes, please.
18 BY MR. MURPHY:
19 Q. Are you going to need to refer to that
20 notebook during the rest of your testimony?
21 MR. JAWGIEL: I'll object. It hasn't
22 been produced until now. This is a complete
23 surprise. A witness is not allowed to write
24 notes and bring them on the stand to help him
L.A. REPORTING (312) 419-9292
129
1 testify. He's here to present documentation
2 that will refresh his recollection and lay
3 the proper foundation if he does not have
4 personal knowledge. But a witness can't
5 write out their testimony and take it to the
6 stand and read it into the record.
7 MR. MURPHY: I don't think that's what
8 he was doing. He looked for verification of
9 a couple of dates.
10 MR. JAWGIEL: Regardless of what he
11 was doing with it. This is completely
12 improper procedure to even allow the witness
13 to bring a notepad up to the stand during
14 testimony.
15 MR. MURPHY: No, it's not. It's
16 perfectly acceptable.
17 THE WITNESS: Your Honor, I don't need
18 it.
19 HEARING OFFICER SUDMAN: Okay. He's
20 not going to use it.
21 MR. MURPHY: Can we have it back then?
22 MR. JAWGIEL: I'm going to review it.
23 I still get a chance to review it. It's a
24 document that he was using during the course
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1 of his testimony here today.
2 HEARING OFFICER SUDMAN: Okay. Take a
3 minute, but look at it quickly. We'll wait
4 for you.
5 (Mr. Jawgiel perusing
6 the notepad.)
7 You've got about another 30 seconds.
8 And I'll note for the record that I actually
9 did not see you looking at any notes.
10 MR. JAWGIEL: And I also ask that you
11 note for the record that the notepad was next
12 to him before he handed it over to me and
13 that he also admitted on the stand that he
14 was reviewing it in his testimony.
15 HEARING OFFICER SUDMAN: So noted.
16 Please continue.
17 BY MR. MURPHY:
18 Q. There's a question that's pending and
19 I believe it had to do with your inspections of the
20 Skokie Valley Asphalt site and the surrounding
21 having to do with water quality violations.
22 A. Yes.
23 Q. So that was another reason why you
24 went there?
L.A. REPORTING (312) 419-9292
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1 A. Yes.
2 Q. Okay. Did Skokie Valley Asphalt have
3 an NPDES permit to your knowledge?
4 A. Yes.
5 Q. Why was Skokie Valley Asphalt required
6 to have an NPDES permit?
7 A. Because it was determined by field
8 operations section that they had storm water runoff
9 associated with industrial activity that could be a
10 threat to water quality.
11 Q. Now, can you explain what field
12 operations section is?
13 A. It's a section of division of water
14 pollution control that does the field inspections.
15 Q. For Illinois EPA?
16 A. For Illinois EPA, for the division of
17 water pollution control.
18 Q. Mr. Kallis, you have a binder in front
19 of you.
20 A. Yes.
21 Q. I'm going to refer you to Exhibit
22 No. 19. Please take a moment to look at that.
23 (Witness perusing
24 the document.)
L.A. REPORTING (312) 419-9292
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1 A. Okay.
2 Q. Do you recognize it?
3 A. Yes.
4 Q. What is it?
5 A. It's a memo dated August 9, 1991 to
6 Margaret Howard from myself concerning Skokie Valley
7 Asphalt.
8 Q. Okay. And are there attachments to
9 that August 9, 1991 memo?
10 A. Yes. There's a memo dated June 4,
11 1991 to Bill Bush from myself concerning Skokie
12 Valley Asphalt.
13 Q. As long as you listed them, are there
14 others?
15 A. There's a division of land pollution
16 complaint investigation form and there's a letter
17 from Tod Marvel, division of land pollution, FOS, to
18 Gary King, EDG, dated
19 July 18, 1988.
20 Q. What about after the GOPC component?
21 A. Right. After that, there is a
22 compliance inquiry letter dated October 31 --
23 ironically -- 1988 to Skokie Valley Asphalt from
24 Roger Callaway, the compliance monitoring unit.
L.A. REPORTING (312) 419-9292
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1 There is a correspondence dated November 9, 1988
2 signed by Richard Frederick to compliance assurance
3 section.
4 There is a certified mail dated
5 January 5, 1990, which was also a compliance inquiry
6 letter also signed by Roger Callaway, and there is a
7 correspondence dated January 17, 1990 from Skokie
8 Valley Asphalt signed by a Robert Christiansen,
9 operations manager.
10 There's a September 13, 1990
11 correspondence from Marlene McHenry, office
12 administrator of permit section, division of water
13 pollution control to Skokie Valley Asphalt.
14 There's an April 11, 1991 letter,
15 compliance inquiry letter on failure to file permit
16 renewal application signed by Roger Callaway. There
17 is a response letter from Skokie Valley Asphalt
18 dated April 22, 1991, signed by Edwin Frederick.
19 There's a May 7, 1991
20 correspondence to Jan Hopper from Edwin Frederick.
21 There's a sample result that I took dated March 21,
22 1991.
23 Q. Did you attach those attachments to
24 the August 9, 1991 memo?
L.A. REPORTING (312) 419-9292
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1 A. Yes, I did.
2 Q. When you prepared the August 9, 1991
3 memo?
4 A. Yes.
5 Q. Is the August 9, 1991 memo used in the
6 ordinary course of Illinois EPA business?
7 A. Yes.
8 Q. Together with its attachments?
9 A. Yes.
10 Q. Is the August 9, 1991 memo together
11 with the attachments kept in the ordinary course of
12 Illinois EPA business?
13 A. Yes.
14 Q. Is that a true and accurate copy of
15 the memo and the attachments?
16 A. Yes, it is.
17 Q. Mr. Kallis, can you tell the Board
18 what was listed in the NPDES permit application as
19 sources of -- potential sources of pollution?
20 A. The application listed gravel, sand,
21 stone, recycled bituminous, concrete, pavement,
22 asphalt, cemented tanks, gasoline, fuel, oil, and
23 tanks.
24 Q. Did it mention anything else?
L.A. REPORTING (312) 419-9292
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1 A. I wrote: It is believed based on past
2 reports that the bituminous concrete, which is
3 stored in a huge pile, is a major source of
4 contamination.
5 Q. In the NPDES permit application -- or
6 does the NPDES permit application indicate how storm
7 water is collected and treated at the Skokie Valley
8 Asphalt site?
9 A. Yes.
10 Q. Can you explain how that --
11 A. Yes. Treatment consists of storm
12 water routed via gravity to an oil/water separator,
13 which is a triple basin separator, according to
14 their permit application anyway in a storm water
15 retention pond -- it was a two-cell pond -- in its
16 two-cell pond.
17 Q. Can you describe how the oil separator
18 works?
19 A. Well, a separator works as a skimming
20 device using a series of layers (indicating).
21 Q. And what's the purpose of the
22 oil/water separator?
23 A. To remove oil.
24 Q. Where did the storm water go after the
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1 storm sewer -- strike that.
2 Where did the storm water go after
3 running through the oil/water separator and the
4 storm water retention ponds?
5 A. Well, the NPDES permit was for a
6 tributary to Grayslake.
7 Q. So is that where the storm water would
8 go after running through there?
9 MR. JAWGIEL: Your Honor, I'm going
10 to objection. He hasn't laid a foundation
11 where that particular drain ditch goes with
12 this particular witness.
13 HEARING OFFICER SUDMAN: Well, I think
14 that's what he's doing now.
15 Continue.
16 MR. MURPHY: Thank you.
17 THE WITNESS: Can you repeat the
18 question?
19 BY MR. MURPHY:
20 Q. Where was the storm water to go after
21 being routed through the oil/water separator and the
22 storm water retention ponds?
23 A. It was to go to Grayslake. That's
24 where it was to go according to the NPDES permit.
L.A. REPORTING (312) 419-9292
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1 Q. Is Grayslake a water of the State?
2 A. Yes.
3 Q. What kind of NPDES permit did Illinois
4 EPA issue to Skokie Valley Asphalt?
5 A. A site-specific NPDES permit for their
6 storm water runoff of this facility.
7 Q. What is the intent behind or purpose
8 behind an NPDES site-specific permit?
9 A. The purpose behind an NPDES
10 site-specific permit is to ensure that water quality
11 standards are met by ensuring that the industry --
12 that's the permittee so to speak -- monitors on a
13 regular basis.
14 Q. During your inspection, did you ever
15 observe that Skokie Valley Asphalt was not in
16 compliance with its April 4, 1986 NPDES permit?
17 A. Yes.
18 Q. More than once?
19 A. Yes.
20 Q. Do you note in your August 9, 1991
21 memo why Skokie Valley Asphalt was out of compliance
22 with its 1986 NPDES permit? And I direct your
23 attention to bullet point number 2.
24 A. There was no representative sampling
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1 point. You're talking on item number 2 on the
2 August 9 memo, right?
3 Q. Yes, sir.
4 A. Right.
5 Q. And what is a representative sampling
6 point?
7 A. It is a point that's needed for the
8 permittee to grab their samples and for the agency
9 to grab samples too for confirmation to ensure that
10 they're meeting the permit limits that were
11 described in the NPDES permit.
12 Q. And the 1986 NPDES permit required
13 them to have such a sampling point?
14 A. It required them to take
15 representative samples.
16 Q. And to do that --
17 A. You need a representative sampling
18 point.
19 Q. Okay. I'm going to direct your
20 attention now to the June 4, 1991 memo that's an
21 attachment to the August 9, 1991 memo. Can you tell
22 me what that memo is about?
23 A. It was a compliance update to our
24 field operations manager at the time.
L.A. REPORTING (312) 419-9292
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1 Q. And specifically was it referenced in
2 the May 21, 1991 inspection visit?
3 A. Yes.
4 Q. Can you describe what happened during
5 that inspection visit?
6 MR. JAWGIEL: Your Honor, this has
7 little or no relevance.
8 HEARING OFFICER SUDMAN: In what way?
9 I think it's pretty relevant.
10 MR. JAWGIEL: All right. I'll
11 withdraw the objection.
12 HEARING OFFICER SUDMAN: Okay.
13 MR. JAWGIEL: Let's see where it goes.
14 HEARING OFFICER SUDMAN: All right.
15 Thank you.
16 THE WITNESS: The purpose of the
17 inspection was twofold. It was to meet --
18 some folks from the division of land
19 pollution control were there to do a site
20 assessment just as a general knowledge
21 consulting thing for them.
22 I was also there to establish
23 whether indeed Skokie Valley Asphalt had
24 installed a representative monitoring point
L.A. REPORTING (312) 419-9292
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1 to ensure NPDES monitoring.
2 BY MR. MURPHY:
3 Q. Did you meet anybody from Skokie
4 Valley Asphalt during that inspection?
5 A. Yes, I met Richard Frederick and
6 Edwin Frederick.
7 Q. Did you have a conversation with
8 Richard Frederick and Larry Frederick about that?
9 A. Yes, I did.
10 Q. About why you were there?
11 A. Yes, I did.
12 Q. What happened in that conversation?
13 MR. JAWGIEL: I'm just going to object
14 with regard to what happened in that
15 conversation. If he wants to ask him what
16 was said in that conversation, that's fine,
17 but I think the form of the question is
18 inappropriate.
19 HEARING OFFICER SUDMAN: Well, I think
20 it's -- I mean, I can understand what the
21 meaning is. If you want to rephrase it, you
22 can, otherwise, I think it's pretty clear.
23 MR. MURPHY: Sure. I'll be happy to.
24
L.A. REPORTING (312) 419-9292
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1 BY MR. MURPHY:
2 Q. Who said what to whom in that
3 conversation?
4 A. Well, I stated I was there mainly to
5 establish whether they put in a sampling point in a
6 manhole that connected their lagoon system to a
7 tributary to Grayslake and there was some resistance
8 and --
9 MR. JAWGIEL: I'm going to object.
10 This witness is reading from the document.
11 HEARING OFFICER SUDMAN: Well, no,
12 here, that's fine.
13 MR. JAWGIEL: If he needs to refresh
14 his recollection -- this reading from the
15 document serves no purpose.
16 THE WITNESS: Madam Hearing Officer, I
17 wasn't reading from a document at that time.
18 HEARING OFFICER SUDMAN: Overruled.
19 Go ahead.
20 THE WITNESS: What had happened was
21 some tempers flared and there was some
22 hostility and I got the impression they
23 wanted me to go, so I left just to avoid
24 confrontation.
L.A. REPORTING (312) 419-9292
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1 BY MR. MURPHY:
2 Q. Hostility on whose part?
3 A. On Richard and Edwin Frederick.
4 Q. So did the Frederick brothers show you
5 an effluent sampling point when you showed up on
6 that date?
7 A. Not on that day.
8 Q. So you were not able to see a sampling
9 point on that day?
10 A. Not on that day.
11 Q. Directing your attention to Exhibit 20
12 in the binder, will you take a moment to look
13 through that, please.
14 (Witness perusing
15 the document.)
16 A. Okay.
17 Q. Do you recognize that document?
18 A. Yes, I do.
19 Q. What is it?
20 A. It is a memo from myself,
21 Chris Kallis, to Rick Pinio dated October 9, 1991
22 concerning my comments on NPDES permit application.
23 Q. Who is Rick Pinio?
24 A. Rick Pinio is an employee of division
L.A. REPORTING (312) 419-9292
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1 of water pollution control industrial permit
2 section. His job is to write permits.
3 Q. So he's an Illinois EPA employee?
4 A. Yes, he is.
5 Q. Is this document used in the ordinary
6 course of normal EPA business?
7 A. Yes.
8 Q. Is this document kept in the ordinary
9 course of normal EPA business?
10 A. Yes.
11 Q. Is this a true and accurate copy of
12 that memo?
13 A. Yes.
14 MR. MURPHY: Madam Hearing Officer,
15 may I have a second?
16 HEARING OFFICER SUDMAN: Yes.
17 BY MR. MURPHY:
18 Q. Which permit did that memo refer to?
19 A. It referred to the NPDES application
20 for renewal of permit from Skokie Valley Asphalt.
21 Q. What was the date of that permit
22 application, if you remember?
23 A. That, I don't. I'm sorry.
24 Q. Okay. Would it have been sometime
L.A. REPORTING (312) 419-9292
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1 around the date of that memo?
2 MR. JAWGIEL: Your Honor, I'm going to
3 object. That asks for speculation. If he
4 doesn't know the date, he won't know when it
5 was.
6 HEARING OFFICER SUDMAN: You're asking
7 him what the date was?
8 MR. MURPHY: If he knows -- he may not
9 know the specific date but he may know that
10 it was sometime around the memo or why else
11 would he be doing the memo at that time?
12 MR. JAWGIEL: That's pure speculation.
13 MR. MURPHY: No. That's why I asked
14 the question.
15 HEARING OFFICER SUDMAN: Well,
16 overruled. I'll allow it.
17 THE WITNESS: I believe it was shortly
18 before this memo.
19 BY MR. MURPHY:
20 Q. Mr. Kallis, while Skokie Valley
21 Asphalt operated under the 1986 permit, did Skokie
22 Valley Asphalt have a representative sampling point
23 that was accessible?
24 A. Can you repeat that question? I'm
L.A. REPORTING (312) 419-9292
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1 sorry.
2 Q. Certainly.
3 While Skokie Valley Asphalt
4 operated under the 1986 NPDES permit, did Skokie
5 Valley Asphalt have a representative sampling point
6 that was accessible?
7 A. No.
8 Q. Was Skokie Valley Asphalt ever
9 permitted to discharge to Avon drainage ditch?
10 A. No.
11 Q. Did Skokie Valley Asphalt at all times
12 comply with the 1986 NPDES permit in its discharge
13 to Grayslake?
14 A. You're asking me if they complied with
15 their discharge to Grayslake?
16 Q. Correct.
17 A. No.
18 Q. Does Avon drainage ditch discharge to
19 Grayslake?
20 A. No.
21 Q. Where does it discharge?
22 A. Third Lake.
23 Q. Turning your attention to Exhibit
24 No. 32, does that map indicate where Skokie
L.A. REPORTING (312) 419-9292
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1 Valley -- strike that.
2 Does that map indicate where Avon
3 Fremont drainage ditch is?
4 A. Yes. It's that blue line that's just
5 to the right of the site of Skokie Valley Asphalt.
6 Q. Where does that blue line run?
7 A. It flows north.
8 Q. It flows north through the Village of
9 Grayslake?
10 A. Yes.
11 Q. Mr. Kallis, I want to direct your
12 attention now to Exhibit No. 18 in the binder. Take
13 a moment to look at that, please.
14 (Witness perusing
15 the document.)
16 A. Yes. It's a complaint investigation
17 dated March 5, 1987.
18 MR. JAWGIEL: Your Honor, I'm going to
19 object to the relevance of this. The
20 complaint doesn't start with any allegations
21 against us in 1988.
22 HEARING OFFICER SUDMAN: Pardon me. I
23 didn't hear you.
24 MR. JAWGIEL: The complaint doesn't
L.A. REPORTING (312) 419-9292
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1 start with any allegations against Skokie
2 Valley until 1988. This is a 1987 complaint.
3 The relevance of this is nonexistent.
4 HEARING OFFICER SUDMAN: Mr. Murphy?
5 MR. MURPHY: It is certainly relevant,
6 Madam Hearing Officer, when you consider
7 Section 33 of the Act and I'll read right
8 from the Act. The character and degree of
9 injury to -- Section 33(c)(i): The character
10 and degree of injury to or interference with
11 the protection of the health and general
12 welfare and physical property of the people;
13 (5): Any subsequent compliance.
14 These are things that the Board
15 may consider in its orders and determination.
16 HEARING OFFICER SUDMAN: Okay. I'm
17 going to overrule it.
18 MR. JAWGIEL: Your Honor, they have
19 not read anything out of the Act that has any
20 bearing on the memo that predates the
21 complaint. There's no relevance whatsoever
22 and they haven't sited any sort of language
23 in the Act that allows for it.
24 It has no relevance whatsoever and
L.A. REPORTING (312) 419-9292
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1 what they're trying to do is merely muddle
2 the issues. The issues in the complaint have
3 been laid out. They're presenting a memo
4 that predates it that has nothing to do with
5 the allegations in the complaint and now
6 they're trying to basically muddy the waters.
7 MR. MURPHY: I can show this memo is
8 relevant, one, because it relates to the
9 issue of corporate officer liability and it
10 also relates to the issue of why he was going
11 out to the site in the first place and why
12 they were required to get an NPDES permit.
13 HEARING OFFICER SUDMAN: Okay. I'm
14 going to allow it.
15 BY MR. MURPHY:
16 Q. Did you prepare that report?
17 A. Yes.
18 Q. When did you prepare it?
19 A. I prepared it sometime after
20 March 5, but before March 10.
21 Q. Okay. So shortly after you made the
22 inspection?
23 A. Right.
24 Q. Is that document used in the ordinary
L.A. REPORTING (312) 419-9292
149
1 course of Illinois EPA business?
2 A. It was at the time. We don't
3 handwrite inspection reports now.
4 Q. Is that document kept in the ordinary
5 course of Illinois EPA business?
6 A. Yes.
7 Q. Is that a true and accurate copy of
8 that report?
9 A. Yes.
10 Q. Mr. Kallis, what did you observe
11 during your March 3, '87 inspection?
12 A. We had a complaint of oil and grease,
13 just an oily residue in Avon drainage ditch and we
14 traced it to a pump-out -- when I say we, I mean me
15 representing the agency -- from their two-cell
16 lagoon.
17 Q. What kind of pump-out, can you
18 describe that, please?
19 A. It was done with a portable pump with
20 an elongated hose.
21 Q. Where was the hose hooked up to and
22 where did it discharge to?
23 A. It was hooked up to their second cell
24 and it lead to the southeast part of their property.
L.A. REPORTING (312) 419-9292
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1 Q. What are you referring to when you say
2 cell?
3 A. I'm referring to a manhole that is
4 located kind of southeast of their property. It's
5 on the drawing on the second page.
6 Q. Okay. And that was the discharge
7 point?
8 A. Yes.
9 Q. My question is where was the line
10 drawing its discharge from?
11 A. The two-cell lagoon.
12 Q. The second cell, two-cell lagoon?
13 A. Right, which are pictured on photo
14 three.
15 Q. Attached to that report?
16 A. Yes.
17 Q. Previously you referred to storm water
18 retention ponds. Are these cells the same thing as
19 the storm water retention ponds?
20 A. That is correct.
21 Q. Who is this "they" that you're saying
22 was discharging this material, this liquid from the
23 storm water pond to the manhole?
24 A. Skokie Valley Asphalt.
L.A. REPORTING (312) 419-9292
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1 Q. Did they have a permit to do that?
2 A. No.
3 Q. Was that covered by their 1986 NPDES
4 permit?
5 A. No.
6 Q. Where did the manhole discharge to?
7 A. The manhole discharged -- lead to a
8 tile and discharged out of the tile to Avon drainage
9 ditch.
10 Q. Did the 1987 NPDES permit cover
11 discharges or allow discharges to the Avon drainage
12 ditch?
13 A. No, it didn't.
14 Q. Mr. Kallis, I'm going to direct your
15 attention to Exhibit No. 21 in the binder. Can you
16 please take a moment to look through that?
17 (Witness perusing
18 the document.)
19 A. Well, there's a lab sheet for my
20 request for a sampling of oil and grease and the
21 results attached, and there's also results for
22 organics and pesticide sample that was collected.
23 Q. Okay. Let's break this down a little
24 bit. You say samples were collected. What samples
L.A. REPORTING (312) 419-9292
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1 are you referring to?
2 A. Samples for oil and grease and samples
3 for organics and pesticide.
4 Q. Collected where?
5 A. At a discharge tile to Avon drainage
6 ditch.
7 Q. Okay. We'll come back to that in a
8 moment. But did you collect those samples?
9 A. Yes.
10 Q. When did you collect them?
11 A. I collected them on the morning of
12 March 1, 1995.
13 Q. Why did you collect those samples?
14 A. In response to an ongoing
15 investigation as to the source of contaminants,
16 obvious contaminants, that were discharged into the
17 Avon drainage ditch.
18 MR. JAWGIEL: Your Honor, I'm going
19 to object to the relevance of this whole line
20 of questioning. There's no relevance
21 whatsoever at this point in time. There's no
22 enforcement action that has been established
23 regarding both this inspection report and the
24 prior ones from 1987. It has no relevance in
L.A. REPORTING (312) 419-9292
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1 this case.
2 HEARING OFFICER SUDMAN: Your
3 objection is noted, but I'm going to allow
4 it. I think it's relevant.
5 BY MR. MURPHY:
6 Q. What did you do when you first went
7 out to the Avon drainage ditch that day?
8 A. I believe I parked my car over by the
9 railroad station. I had a hand-held cooler which
10 was able to hold a bottle for organics and a bottle
11 for oils and grease and I walked along the ditch up
12 to the tile, took out the bottles, took the sample.
13 I did use latex gloves just as protection.
14 I marked the bottles -- actually,
15 I marked them before I even took the sample with the
16 marker, put them back in the cooler, transported
17 them back to the office.
18 Q. Where exactly did you collect the
19 samples?
20 A. From a farm tile discharge at the Avon
21 drainage ditch.
22 Q. Okay. Now, where is that -- switching
23 gears now for a moment to Exhibit No. 32, which is
24 the map you looked at previously. Can you describe
L.A. REPORTING (312) 419-9292
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1 for the Board where that farm tile is as it connects
2 to Avon drainage ditch on this map?
3 A. It's approximately maybe a little
4 north of where the two Ps, an approximate.
5 Q. Okay. So the map has a designation of
6 the approximate location of the subject property?
7 A. Right.
8 Q. And you're saying that the farm tile
9 was located just north of where those two Ps appear
10 on that map?
11 A. To the best of my recollection, yes.
12 Q. What did you observe when you
13 collected the sample?
14 A. I observed a heavy oil sheen and a
15 heavy oily substance discharging from the farm tile
16 and it was causing an oil sheen, very concentrated.
17 Q. What did the water upstream from the
18 farm tile in the Avon drainage ditch look like?
19 A. It was either partially frozen or
20 mildly turbid. I did not see any sign of oil or
21 grease or any contaminants so to speak upstream.
22 Q. But you did see -- strike that.
23 What did you see downstream from
24 the farm tile?
L.A. REPORTING (312) 419-9292
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1 A. A heavy oil sheen.
2 Q. What did you see coming out of the
3 farm tile?
4 A. A heavy oily substance even more
5 concentrated than in the creek.
6 Q. Can you please turn to the page of the
7 sampling report where it says oil gravimetric.
8 MR. JAWGIEL: I'm sorry. Where are
9 you referring?
10 MR. MURPHY: Back on Exhibit 21.
11 MR. JAWGIEL: Thank you.
12 BY MR. MURPHY:
13 Q. Can you explain what oil gravimetric
14 means?
15 A. It's a -- well, gravimetric is, as I
16 understand it, the way the analysis is done. It's
17 how they determine the concentration of oil and
18 grease in that sample.
19 Q. Okay. After you collected the
20 samples, did you send them out for analysis?
21 A. Yes.
22 Q. Did you get the sample analysis back?
23 A. Yes.
24 Q. What were the results?
L.A. REPORTING (312) 419-9292
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1 A. The concentrations of oil gravimetric
2 was 664 milligrams per liter.
3 Q. Thank you.
4 Getting back now to your
5 observations when you collected the samples, the
6 observations you made at Avon drainage ditch, you
7 mentioned certain things that you saw. Did you
8 notice any smells?
9 A. I did note a petroleum-based smell.
10 Q. Where?
11 A. Near the farm tile.
12 Q. Would you associate that with what was
13 coming out of the farm tile?
14 A. Yes, I did.
15 Q. Okay. Is the sampling report a
16 document used in the ordinary course of Illinois EPA
17 business? I'm referring to Exhibit 21.
18 A. Yes.
19 Q. Is Exhibit 21 kept in the ordinary
20 course of Illinois EPA business?
21 A. Yes.
22 Q. Is that a true and accurate copy of
23 the sampling report?
24 A. Yes.
L.A. REPORTING (312) 419-9292
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1 Q. Thank you.
2 A. The only thing I might say that
3 doesn't appear to be here is the cover sheet where I
4 requested the organics.
5 Q. But everything else was true and
6 accurate?
7 A. Right.
8 Q. Okay. Mr. Kallis, I'd like to direct
9 your attention to Exhibit No. 22 in the binder.
10 Please take a moment to look through that document.
11 A. Yes. It's a legal support inspection
12 dated March -- well, no, not dated. It's a legal
13 support inspection. The inspection occurred on
14 March 22, 1995.
15 Q. So that report documents the
16 inspection that occurred on March 22,
17 '95?
18 A. Yes.
19 Q. Did you sign this memo?
20 A. Yes, I did.
21 Q. You also prepared this memo?
22 A. Yes.
23 Q. Is this a document used in the
24 ordinary course of normal EPA business?
L.A. REPORTING (312) 419-9292
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1 A. Yes, it is.
2 Q. Is it a document kept in the ordinary
3 course of EPA business?
4 A. Yes.
5 Q. Is that a true and accurate copy of
6 that report?
7 A. Yes.
8 Q. Okay. Now, with respect to the
9 inspection you conducted on March 22, 1995, did you
10 talk to anyone on behalf of Skokie Valley Asphalt
11 during your visit that day?
12 A. Yes. I talked to Richard Frederick.
13 Q. Okay. What did Mr. Frederick tell you
14 and what -- strike that.
15 What did you say to him and what
16 did he say to you?
17 A. Well, we walked all over the property.
18 We looked into that manhole that at one time they
19 did pump into, and we walked through the property
20 and there did not appear to be any overt
21 contamination.
22 Q. You mentioned the manhole. Did
23 Mr. Frederick tell you where that manhole discharged
24 to?
L.A. REPORTING (312) 419-9292
159
1 A. No.
2 Q. Did Mr. Frederick say anything to you
3 about underground storage tanks on the Skokie Valley
4 Asphalt property?
5 A. I asked them if there were any and at
6 the time he said no.
7 Q. Why did you ask Mr. Frederick -- or
8 Richard Frederick if there were underground storage
9 tanks on the Skokie Valley Asphalt property?
10 A. An employee of the Lake County Health
11 Department had communicated to me that there were.
12 Q. Were there any other reasons why you
13 would suspect there to be an underground storage
14 tank on that property?
15 A. Just from the nature of the kind of
16 business they have and -- yeah.
17 Q. Okay. Did you observe anything about
18 contaminated water on that day?
19 A. Yes. I did note and I do remember
20 that the discharge was still occurring at the Avon
21 drainage ditch. One update that did occur is that
22 the Grayslake Fire Department did put in some booms
23 in the creek downstream.
24 Q. What are booms?
L.A. REPORTING (312) 419-9292
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1 A. Booms are, again, sort of an oil
2 separator, only a portable one. They are installed
3 to absorb oil that's moving on the surface.
4 Q. Did you again observe oil in the Avon
5 drainage ditch?
6 A. Yes.
7 Q. Was that coming again from the farm
8 tile?
9 A. Yes.
10 Q. What is the purpose of absorbing booms
11 used in that fashion?
12 A. Again, to collect oil that's flowing
13 in a ditch.
14 Q. Prior to it flowing anywhere else?
15 A. Right.
16 Q. Okay. Mr. Kallis, I'd like to direct
17 your attention to tab 23 in the binder. Take a
18 moment to look through that document.
19 (Witness perusing
20 the document.)
21 A. Okay. There was a memo to
22 Chuck Gunnarson of the division of legal
23 counsel from myself dated May 12, 1995.
24 Q. Chuck Gunnarson is another EPA
L.A. REPORTING (312) 419-9292
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1 employee?
2 A. Yes. He's employed with the division
3 of local counsel.
4 Q. Is this document used in the ordinary
5 course of Illinois EPA business?
6 A. Yes.
7 Q. Is this document kept in the ordinary
8 course of Illinois EPA business?
9 A. Yes.
10 Q. Is this a true and accurate copy of
11 that report?
12 A. Yes.
13 Q. Okay. Turning your attention now to
14 tab 24 in the binder, take a moment to go through
15 that document.
16 (Witness perusing
17 the document.)
18 A. Okay. Yes, it was a legal support
19 inspection dated December 5, 1995 by myself.
20 Q. The inspection was dated December 5,
21 '97?
22 A. That's when the inspection was
23 conducted.
24 Q. Does this report memorialize your
L.A. REPORTING (312) 419-9292
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1 observations from that inspection?
2 A. In the facility site review, that's
3 correct.
4 Q. Okay. Is this document used in the
5 ordinary course of Illinois EPA business?
6 A. Yes.
7 Q. Is this a document kept in the
8 ordinary course of Illinois EPA business?
9 A. Yes.
10 Q. Is this a true and accurate copy of
11 that report?
12 A. Yes.
13 Q. Okay. Now, was Skokie Valley Asphalt
14 still discharging to waters of the State in 1997?
15 MR. JAWGIEL: I'm going to object to
16 the foundation, your Honor.
17 THE WITNESS: Yes.
18 HEARING OFFICER SUDMAN: Overruled.
19 BY MR. MURPHY:
20 Q. Your answer was yes?
21 A. Yes. Sorry.
22 Q. Did Skokie Valley Asphalt have an
23 NPDES permit to do so at the time?
24 A. No, it didn't.
L.A. REPORTING (312) 419-9292
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1 MR. MURPHY: Madam Hearing Officer,
2 may I have a moment?
3 HEARING OFFICER SUDMAN: Yes.
4 (Brief pause.)
5 MR. MURPHY: Madam Hearing Officer, at
6 this time I have no more questions.
7 HEARING OFFICER SUDMAN: Thank you.
8 Let's go off the record for just a
9 moment.
10 THE REPORTER: Sure.
11 (Whereupon, a discussion
12 was had off the record.)
13 HEARING OFFICER SUDMAN: Okay. We're
14 back on the record just to say that we will
15 be taking a lunch hour. We will restart at
16 1:15. It is now 12:15, so please be back in
17 one hour.
18 MR. JAWGIEL: If I may also just
19 state that we did state that we will ask
20 Mr. Kallis some questions, but we are
21 reserving our right to call him in our case
22 in chief pursuant to our 237 notice.
23 HEARING OFFICER SUDMAN: Okay. Thank
24 you.
L.A. REPORTING (312) 419-9292
164
1 (At 12:15 p.m. a
2 luncheon recess was taken to
3 1:15 p.m.)
4 HEARING OFFICER SUDMAN: We'll go back
5 on the record; it is 1:15. We are back from
6 lunch.
7 Mr. Kallis, you may please take
8 the witness stand again, and I will remind
9 you that you are still under oath.
10 Mr. Jawgiel, your witness, please.
11 MR. JAWGIEL: Thank you.
12 Just so the record is clear, we
13 may dive into some areas that we objected to
14 for our motion in limine. I'm not waiving
15 those objections. Given the ruling of the
16 hearing officer, I think I'm obligated to go
17 into those subject matters.
18 HEARING OFFICER SUDMAN: Okay.
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
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1 AFTERNOON SESSION
2 CHRIS KALLIS,
3 called as a witness herein, having been previously
4 duly sworn, was examined and further testified as
5 follows:
6 C R O S S - E X A M I N A T I O N
7 BY MR. JAWGIEL:
8 Q. Good afternoon, sir.
9 Mr. Kallis, you had mentioned one
10 incident when you experienced some hostility in
11 going out to the site together and sampling and was
12 unable to do so at some point in time and I've
13 looked through your reports and I don't see any
14 other notations regarding that. Was that a single
15 incident?
16 A. It was a single incident.
17 Q. And how many times had you been out to
18 the facility, the Skokie Valley Asphalt facility --
19 if I use Skokie Valley, you understand what we're
20 talking about -- since that incident when there was
21 hostility?
22 A. There's been none.
23 Q. How many times had you been out there
24 three, four, five times since that incident?
L.A. REPORTING (312) 419-9292
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1 A. I believe even more than that and I
2 had not experienced hostility.
3 Q. And you've taken samples during those
4 other visits, have you not?
5 A. At times.
6 Q. At any point in time when you went out
7 to the actual property of Skokie Valley, did you
8 ever have a warrant?
9 A. No.
10 MR. MURPHY: Objection, relevance.
11 HEARING OFFICER SUDMAN: I'll allow
12 it.
13 THE WITNESS: No, sir, I haven't.
14 BY MR. JAWGIEL:
15 Q. Now, do you have a big book in front
16 of you?
17 A. Yes, I do.
18 Q. Now, just so we have an understanding,
19 you realize that in the area where Skokie Valley was
20 located there were other properties that were not
21 Skokie Valley; is that correct?
22 A. They are surrounded by other
23 properties, that's correct.
24 Q. There's actually a farm that is in
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1 between Skokie Valley property and the Avon drainage
2 ditch; is that correct?
3 A. That's correct.
4 Q. And that's an active farm, if you
5 will?
6 A. The last I visited there, they were
7 farming on it.
8 Q. Okay. And there's also -- I believe
9 there's railroad tracks that run between the Skokie
10 Valley property and the Avon drainage ditch as well;
11 is that correct?
12 A. Between?
13 Q. Well, somewhere in that vicinity; is
14 that correct?
15 A. There are railroad tracks, but if
16 you're asking me of the railroad tracks between
17 where the tile was and the facility, I would say no.
18 But yes, there are railroad tracks there.
19 Q. And is there a car dealership -- in
20 the general vicinity of this within, let's say, a
21 two-mile radius of Skokie Valley, is there a car
22 dealership in that area?
23 A. Yes. There's a car dealership on
24 Route 120, which is to the north of Skokie Valley
L.A. REPORTING (312) 419-9292
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1 Asphalt. The last I saw there was one there.
2 Q. Okay. And what other types of
3 entities or businesses or anything are within this
4 two-mile radius of Skokie Valley?
5 A. Two miles extends into downtown, so
6 there's all sorts of retail businesses and diners
7 there and things like that.
8 Q. Okay. I think you had indicated that
9 the first time that you had noticed any discharge
10 out of the farm tile was when you were out there
11 when?
12 A. The first time that I ever observed a
13 discharge from the farm tile, that I ever actually
14 looked into a discharge of the farm tile was in that
15 1987 incident.
16 Q. Okay, the 1987 incident.
17 Now, with respect to the 1987
18 incident, was there any prosecution from that?
19 A. No.
20 Q. Did you recommend any prosecution?
21 MR. MURPHY: Objection. Madam Hearing
22 Officer, this witness -- there's been no
23 foundation that this witness has anything to
24 do with recommendations made to the Illinois
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1 EPA or the Attorney General's Office about
2 whether -- the filing of prosecution against
3 potential defendants. It's outside the
4 scope; it's not relevant either.
5 MR. JAWGIEL: The scope of his duties
6 would have been established by direct
7 examination and it was very loose. So
8 essentially it was very loose, so the door is
9 open to allow me to ask him these questions.
10 HEARING OFFICER SUDMAN: You're asking
11 him if he recommended it?
12 MR. JAWGIEL: Right.
13 HEARING OFFICER SUDMAN: I'll allow
14 it.
15 THE WITNESS: I recommended a
16 compliance inquiry letter of some type if my
17 memory serves me correctly.
18 BY MR. JAWGIEL:
19 Q. Okay. And was there compliance?
20 A. Yeah, I think there was.
21 Q. How long after you first recognized
22 that there was this oily substance back in 1987?
23 MR. MURPHY: Madam Hearing Officer, I
24 thought I heard him say was there
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1 compliance -- or I didn't understand the
2 question. Can I have him repeat the
3 question, please?
4 HEARING OFFICER SUDMAN: Would you
5 please repeat the question?
6 MR. JAWGIEL: Sure.
7 BY MR. JAWGIEL:
8 Q. Was there compliance by Skokie Valley
9 back in 1987 with respect to the compliance letter
10 that you recommended?
11 A. I don't understand your question. I'm
12 sorry.
13 HEARING OFFICER SUDMAN: I don't
14 either. Are you asking was there a compliance
15 letter?
16 MR. JAWGIEL: No.
17 BY MR. JAWGIEL:
18 Q. You had indicated that a compliance
19 letter was something you recommended, is that
20 correct, after you realized what happened in 1987?
21 MR. MURPHY: Well, now I have a
22 different objection. There still has been no
23 foundation that one was actually sent based
24 on the recommendation.
L.A. REPORTING (312) 419-9292
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1 HEARING OFFICER SUDMAN: Well, that's
2 true. I didn't get that leap either. Do you
3 want to go back a little?
4 BY MR. JAWGIEL:
5 Q. Well, was there a compliance letter
6 sent with respect to the incident back in 1987?
7 A. To the best of my recollection, I
8 think was, yes.
9 Q. Okay. Now, was there compliance with
10 that letter by Skokie Valley back in 1987?
11 A. Sir, are you asking me that after that
12 incident did a similar incident take place?
13 Q. No. I'm asking you that after that
14 incident in 1987 after the compliance letter that
15 you believe was sent out was sent out whether or not
16 Skokie Valley complied with the recommendations of
17 the letter in your opinion?
18 A. Well, a compliance inquiry letter -- a
19 compliance inquiry letter, what it does is asks --
20 we don't send those out anymore. We send out
21 violation notices, but it serves the same purpose.
22 It gave them a notice that they were in violations
23 that day and what they're going to do to remedy that
24 in the future and --
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1 MR. JAWGIEL: I would ask that his
2 answer be struck as nonresponsive.
3 HEARING OFFICER SUDMAN: Mr. Kallis --
4 HEARING OFFICER SUDMAN: I'm sorry.
5 MR. MURPHY: He did respond.
6 THE WITNESS: I'm sorry --
7 HEARING OFFICER SUDMAN: That's okay.
8 I realize you're giving a lot of background
9 information but he really didn't ask for it,
10 so would you please repeat the question that
11 you did ask?
12 MR. JAWGIEL: I don't quite remember.
13 If I could have it read back --
14 HEARING OFFICER SUDMAN: Would the
15 court reporter please read it back?
16 (Whereupon, the requested
17 portion of the record
18 was read accordingly.)
19 THE WITNESS: Since I don't have the
20 letter in front of me, I don't think I can
21 answer that. I'm sorry.
22 HEARING OFFICER SUDMAN: That's okay.
23 If you don't know, just say you don't know.
24
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1 BY MR. JAWGIEL:
2 Q. Well, let me ask you this question:
3 What month was it that you first noticed this
4 incident in 1987?
5 A. I noticed it two days after the
6 complaint. I think it was in March. I had my
7 note --
8 Q. Okay. Did you go out there in April
9 of 1987 to find out if there was still a discharge
10 that you recognized in March of 1987?
11 A. I don't remember if there was a field
12 follow-up right after that.
13 Q. Okay. So you did nothing to follow-up
14 with respect to the discharge in 1987 as you sit
15 here today?
16 MR. MURPHY: Objection, misconstrues
17 the prior testimony. He says he doesn't
18 remember.
19 MR. JAWGIEL: It's cross-examination,
20 your Honor. I'm giving a lot of latitude.
21 HEARING OFFICER SUDMAN: That's true.
22 I'll allow it.
23 THE WITNESS: Repeat.
24 MR. JAWGIEL: Sure.
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1 BY MR. JAWGIEL:
2 Q. Is it fair to say that you did no
3 follow-up whatsoever with respect to the discharge
4 that you identified in March of 1987?
5 A. No, because I recommended to our
6 regional manager that a compliance inquiry letter be
7 written.
8 Q. Okay. Beyond the recommendation of a
9 compliance letter, did you do any other follow-up
10 with respect to the March 1987 discharge as you
11 identified?
12 A. I don't remember.
13 Q. Mr. Kallis, we talked a little bit
14 about your educational background. Do you have a
15 degree in chemistry?
16 A. No, sir.
17 Q. Have you ever conducted a chemical
18 analysis test of any samples that you have taken?
19 MR. MURPHY: Madam Hearing Officer, I
20 have an objection on the grounds of
21 relevancy. I'll have a standing objection to
22 this line of questioning.
23 HEARING OFFICER SUDMAN: Okay.
24 MR. JAWGIEL: It goes to his
L.A. REPORTING (312) 419-9292
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1 qualifications.
2 HEARING OFFICER SUDMAN: And it also
3 goes to evidence on the motions that he
4 filed, so I'm going to allow it.
5 THE WITNESS: I've done field analyses
6 for dissolved oxygen using a kit and acid
7 bottles, I've done that. Other than that,
8 using hot kits for determining pH, no.
9 BY MR. JAWGIEL:
10 Q. Okay. So with respect to the reports
11 that we see -- the various chemical analysis reports
12 we see attached to your memos, you don't know
13 whether or not that information is accurate or not;
14 is that correct?
15 A. Are you talking about the analysis,
16 the samples I took from Skokie Valley Asphalt?
17 Q. The analysis you took from the Avon
18 drainage ditch -- from the farm tile. There was an
19 analysis that was done to that sample, but you don't
20 know whether or not those analyses values are
21 accurate or not, do you?
22 A. No.
23 Q. I want to refer you to Exhibit 22.
24 Take a look at Exhibit 22 and in particular I'm
L.A. REPORTING (312) 419-9292
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1 going to refer you to your summary of findings.
2 Now, was it your opinion as you wrote here that the
3 present contamination in the Avon drainage ditch is
4 pure speculation?
5 A. At that time, yes.
6 Q. And that your best guess is that the
7 contamination is historical?
8 A. I did write that, yes.
9 Q. And when you said historical, you were
10 talking about that in 1988, there was a closure of
11 that particular tile; is that correct?
12 A. Yes.
13 Q. Did you take any samples of any
14 material whatsoever that were on the Skokie Valley
15 site in March of 1995 or after to analyze them to
16 compare it to what was in the Avon drainage ditch?
17 A. No, sir.
18 Q. At no point in time are you aware of
19 anyone analyzing any materials that were present on
20 the Skokie Valley site at the time that there was
21 this discharge from the farm tile into the Avon
22 drainage ditch; isn't that correct?
23 A. That's correct.
24 Q. Nobody as far as you're aware did a
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1 chemical analysis in order to determine whether or
2 not the materials that were present on the Skokie
3 Valley site contemporaneous to what was going on in
4 the Avon drainage ditch in 1995 regarding this
5 discharge would be the same types of material; is
6 that correct?
7 A. That was a long question. Can you
8 repeat it?
9 Q. Sure and maybe I can shorten it.
10 You're not aware of anybody or any
11 entity taking a sample from the Skokie Valley site
12 as it existed at the time of this discharge into the
13 Avon drainage ditch in 1995 in order to compare the
14 materials that were on the site to what was in the
15 ditch?
16 A. That's correct.
17 Q. Sir, isn't it true that you are aware
18 that other drain tiles may contribute into this farm
19 tile where this discharge was coming from; is that
20 correct?
21 A. That's true.
22 Q. And you're not quite sure what other
23 contributories there may be into this drain tile
24 because you never looked into what those
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1 contributory tiles may be; is that correct?
2 A. I tried looking into it but it's very
3 difficult.
4 Q. So as you sit here today, you don't
5 know whether or not what you pulled out of the farm
6 tile back in March of 1995 was actually some
7 material that came from Skokie Valley, isn't that
8 correct, other than -- it could come from other
9 sources as well?
10 A. It's technically possible. That's
11 correct.
12 Q. Did you go to the car dealership
13 that's in this area to determine whether or not
14 there may have been an oily discharge in its manhole
15 cover?
16 A. No.
17 Q. Did you go to the farm and see if
18 there was oily discharge in the farm's manhole cover
19 at the time that you were out in Skokie Valley in
20 March of 1995?
21 A. Yes.
22 Q. Did you find anything?
23 A. No.
24 Q. And as you already said, you went to
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1 Skokie Valley, looked at their manhole, and you
2 didn't see anything that was consistent to what was
3 in the Avon Creek; is that correct?
4 A. That's correct.
5 Q. Did you take any soil borings of the
6 land on the Skokie Valley site to its border to
7 determine whether or not there may have been oil
8 that leached out of this drain tile into the soil?
9 A. No, sir.
10 Q. Now, with respect to oily products,
11 you've been using the term oil. With respect to
12 what you saw in March of 1995 coming out of this
13 drain tile, you don't know whether it was motor oil,
14 do you, sir?
15 A. Not by what I saw.
16 Q. You don't know whether or not it was
17 gasoline or a gasoline-based product, do you, sir?
18 A. The samples that I took out of the
19 tile, I did take organics and it came up with
20 organics that you could associate with
21 petroleum-related substances.
22 Q. Okay. Petroleum related substances
23 could be fertilizer, isn't that correct? It's a
24 petroleum-based substance, isn't it?
L.A. REPORTING (312) 419-9292
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1 A. Some are.
2 Q. It could be motor oil? That's a
3 petroleum base?
4 A. Yes.
5 Q. It could be diesel fuel; is that
6 correct?
7 A. That's correct.
8 Q. It could be heating oil; is that
9 correct?
10 A. Yes.
11 Q. It could be some household products
12 that have oil -- or petroleum-based solvents in
13 them?
14 A. That's correct.
15 Q. And as we sit here today, you can't
16 tell us which product actually was present in that
17 sample among those list of products; isn't that
18 correct?
19 A. I can only tell you what organics were
20 found in the analysis that was given to me.
21 Q. But that's not my question, sir.
22 You can't tell me whether it was
23 gasoline or a gasoline-based product or oil for a
24 motor, for a car or truck or whatever the case may
L.A. REPORTING (312) 419-9292
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1 be, diesel fuel or any other products we just
2 listed, correct?
3 A. That's correct.
4 Q. Has it been your experience, sir, that
5 when you put -- well, let's take a step back.
6 We keep talking about this drain
7 tile. A drain tile was made out of what, was it
8 made out of ceramic, was it made out of metal, was
9 it made out of both? What was your understanding of
10 the farm drain tile that you took this substance out
11 of?
12 A. I don't know all of the -- I know some
13 of it was made out of metal.
14 Q. Okay. The part that you could see
15 coming out of the ground was made out of metal; is
16 that correct?
17 A. Yes.
18 Q. Has it been your experience that after
19 you have this external metal that's generally the
20 part that's under the ground is made out of some
21 sort of ceramic or terra-cotta material?
22 A. Tile, yes, sometimes.
23 Q. Okay. Now, has it been your
24 experience, sir, that when you put an oily substance
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1 in a terra-cotta or clay type of tile, that has a
2 tendency of leaking out because it's a porous
3 material?
4 A. I haven't had too much experience but
5 I know what you're saying.
6 Q. Well, it can, can it not?
7 A. I'm not sure on that one. I'm sorry.
8 Q. Okay. Isn't it true, sir, you have no
9 information that Larry Frederick put the oil into
10 the drain tile that eventually went out into the
11 Avon drainage ditch?
12 A. I have no information that Larry
13 Frederick put oil into the drainage ditch.
14 Q. You have no information that anyone at
15 Larry Frederick's direction did so either; isn't
16 that correct?
17 A. That's correct.
18 Q. You have no information whatsoever
19 that Richard Frederick actually put the substance
20 that you collected out of the farm tile in March of
21 1995?
22 A. That's correct.
23 Q. You have no information whatsoever
24 that anyone under Richard Frederick's authority
L.A. REPORTING (312) 419-9292
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1 placed the oily substance that you identified in
2 March of 1995 into the farm tile; is that correct?
3 A. That's correct.
4 Q. You have no information that would
5 lead you to believe that anyone from Skokie Valley,
6 any of their employees, actually placed the
7 substance that was in the drain tile that you
8 collected in March of 1995; is that correct?
9 A. That's correct.
10 Q. I want to refer you to Exhibit 23.
11 It's your memo dated May 12, 1995. Do you have that
12 before you, sir?
13 A. Yes, the May 12, 1995 memo.
14 Q. Okay. Now, in the second full
15 paragraph we see that you referred to a report by a
16 Betty Lavis from the USEPA and it's attached to this
17 document, isn't that correct, when you drafted it
18 because you indicate attached is a report by
19 Betty Lavis? It was your intention to attach it; is
20 that correct?
21 A. Yes.
22 Q. Now, Exhibit 24 doesn't contain the
23 attachment, does it, sir?
24 A. No, it doesn't.
L.A. REPORTING (312) 419-9292
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1 Q. Okay. But if we look at Exhibit 25,
2 which the State didn't present to you -- take a look
3 at it.
4 A. Yes.
5 Q. Exhibit 25 is that memo from
6 Betty Lavis that you refer to in your report, which
7 is Exhibit 23; is that correct?
8 A. I believe so, yes.
9 Q. So an accurate representation of
10 Exhibit 23 would be including the attachment of
11 Exhibit 25, isn't that correct, to make sure that
12 the document is complete and accurate, right?
13 A. That's a legal determination. I'm not
14 sure I know where you're coming from.
15 Q. Well, when you submitted your report
16 in --
17 A. '95, I know.
18 Q. -- May 12 of '95, you attached
19 Ms. Lavis' report to it as a supporting document to
20 what you wrote in your memo?
21 A. Yes, I did.
22 Q. And you relied upon what you saw in
23 Betty Lavis' report for the basis of your opinions
24 that we see here?
L.A. REPORTING (312) 419-9292
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1 A. Yes, sir.
2 Q. And that memo along with your memo --
3 when I say that memo, I'm talking about
4 Betty Lavis' memo -- and your memo were kept in the
5 ordinary course of business, were they not?
6 A. Yes, as an attachment to that memo.
7 Q. Right. And as we've already
8 established, as an attachment to that memo, that
9 type of document at the Illinois EPA would have been
10 kept in the ordinary course of business as an
11 attachment to your memo; isn't that correct?
12 A. Yes.
13 Q. And what we see in Exhibit 25 is
14 actually a true and accurate copy of the attachment
15 that you attached to your memo of May 12, 1995?
16 A. You got it.
17 Q. Okay. Now, you used Betty Lavis'
18 report as a basis for your conclusion that this oily
19 substance, which we don't know what it is, came from
20 the Skokie Valley site; is that correct?
21 A. Yes, sir. I believe that's correct.
22 Q. Do you see anywhere in her report
23 where she makes the statement that this substance
24 definitively came from the Skokie Valley site?
L.A. REPORTING (312) 419-9292
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1 A. No.
2 Q. So it was your interpretation of what
3 Ms. Lavis wrote that the oily substance came from
4 the Skokie Valley site; isn't that correct?
5 A. That's correct.
6 Q. But that was your interpretation
7 without any additional testing, without any soil
8 borings, without taking sampling from the Skokie
9 Valley site, without doing anything else; is that
10 correct?
11 A. That's correct.
12 Q. And did you find the reports and the
13 memorandum of Betty Lavis to be reliable documents
14 for basing your opinion regarding what was going on
15 in the Skokie Valley site at the time of this
16 discharge into the Avon drainage ditch? I'm talking
17 about the discharge in 1995.
18 MR. MURPHY: Your Honor, I object.
19 I'm not sure I understand the question; it
20 was a long one.
21 HEARING OFFICER SUDMAN: Are you
22 asking if he relied on the Lavis memo?
23 MR. JAWGIEL: What I'm asking him is
24 something a little bit more specific. What
L.A. REPORTING (312) 419-9292
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1 I'm asking him is in his opinion, are these
2 types of documents from the USEPA and
3 Betty Lavis reliable sources of information
4 to rely on to base his opinion.
5 HEARING OFFICER SUDMAN: Okay.
6 THE WITNESS: I considered it so.
7 BY MR. JAWGIEL:
8 Q. Towards the end of your direct
9 testimony, you identified a memo, which I believe
10 was December 5, 1997 and it's
11 Exhibit 24 -- if I can refer you to that exhibit --
12 A. You're talking about the legal support
13 inspection, correct?
14 Q. Field support inspection, yeah.
15 Now, let's just get a little
16 understanding of why you did this legal support
17 inspection. Was this done in order to determine
18 whether or not an NPDES permit would be issued to
19 Skokie Valley?
20 A. No, sir.
21 Q. When you referred to that there was a
22 discharge in this December 1997 report, were you
23 talking about discharge of storm water? What
24 contaminants are you talking about that you claim
L.A. REPORTING (312) 419-9292
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1 Skokie Valley was putting into the Avon drainage
2 ditch in this particular period of time that formed
3 the basis of the
4 December 5, 1997 inspection report?
5 A. Well, the basis of this report was,
6 one, an explanation of the NPDES permit status; two,
7 the history; three, the facility site review of what
8 I saw that day and then four, a summary of findings.
9 Q. Okay. I thought you had given the
10 opinion on direct examination that based on this
11 report, it was your opinion that Skokie Valley was
12 continuing to discharge material into the Avon
13 drainage ditch, is that a correct characterization
14 of your testimony?
15 A. I don't think so.
16 Q. Okay. So in your opinion, when did
17 Skokie Valley stop discharging materials prior to
18 December 5, 1997 into the Avon drainage ditch?
19 A. To the best of my knowledge, it was
20 soon after Mr. Huff was hired.
21 Q. Okay. So that would be back in 1995?
22 A. Yes.
23 Q. And you're not aware of any problems
24 with respect to Skokie Valley discharging material
L.A. REPORTING (312) 419-9292
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1 into the Avon drainage ditch since 1995; isn't that
2 correct?
3 A. The Avon drainage ditch, that's
4 correct.
5 Q. Are you aware of Skokie Valley --
6 well, let me just take a step back. Strike that
7 question, please. Let me take a step back.
8 You had indicated that the report,
9 which is Exhibit 24, has to do with the NPDES
10 permit?
11 A. Right.
12 Q. Okay. And it was your understanding
13 that at the time you wrote this report, Skokie
14 Valley had applied for a renewal of its permit; is
15 that correct?
16 A. There had been a renewal application
17 in, that's correct.
18 Q. And you were going out to the site to
19 determine what in December 5 of 1997?
20 A. That's what the facility site review
21 is, a field verification of the day.
22 Q. It was to determine what, sir? When
23 you say a field site verification --
24 A. Well, it was just to determine what
L.A. REPORTING (312) 419-9292
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1 was happening on that day. And I have a summary of
2 findings that they were discharging the waters to
3 the State. I didn't say Avon drainage ditch without
4 an NPDES permit.
5 Q. Okay. When you say they were
6 discharging water into the State --
7 A. Into waters of the State.
8 Q. -- into waters of the State, what were
9 they discharging?
10 A. They were discharging out of their
11 NPDES outfall, which was no longer permitted under
12 an NPDES permit.
13 Q. Okay. Did you test that?
14 A. I don't believe I did that day, no.
15 Q. Okay. So you don't have any test
16 results to determine whether or not the water that
17 was being discharged when you were out at the site
18 actually had contaminants in it?
19 MR. MURPHY: Madam Hearing Officer, I
20 have an objection as to relevance.
21 MR. JAWGIEL: They brought this up.
22 They brought this whole line up about --
23 MR. MURPHY: If they are discharging
24 without a permit to Grayslake, that's
L.A. REPORTING (312) 419-9292
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1 discharging without a permit and this was a
2 violation by itself.
3 MR. JAWGIEL: It goes to whether or
4 not there's some sort of contaminant cause.
5 MR. MURPHY: There's no requirement
6 for impact to be found in any of this.
7 That's a red herring that should not be part
8 of these proceedings.
9 MR. JAWGIEL: It goes to 42H; clearly
10 it goes to 42H. It goes to environmental
11 impact.
12 HEARING OFFICER SUDMAN: Well, I'm
13 going to allow it.
14 MR. JAWGIEL: Thank you.
15 HEARING OFFICER SUDMAN: The Board can
16 weigh your objection accordingly.
17 BY MR. JAWGIEL:
18 Q. Okay. You have no test results from
19 this particular visit you had of Skokie Valley back
20 in December of 1997 which would indicate to you that
21 there were any contaminants in the discharge water
22 that you identified?
23 A. I didn't take any samples that day.
24 Q. No samples?
L.A. REPORTING (312) 419-9292
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1 A. No samples that day.
2 Q. Okay. When was the last time you took
3 samples of Skokie Valley with respect to the
4 discharge water?
5 A. I believe it was in '92 where we first
6 established that they had an accessible sampling
7 point. Early in '92, I think, I took the sample.
8 Q. Okay. And that was the last time you
9 took a sample?
10 A. That's correct.
11 Q. Now, with respect to this accessible
12 point, you were able to take samples from this site
13 in 1992; is that correct?
14 A. Yes.
15 Q. Where did you take the sample from?
16 A. From a spigot that's in the manhole
17 that their lagoon is connected to, there second
18 cell.
19 Q. And who put that spigot in?
20 A. I don't know.
21 Q. Was it there back in 1991?
22 A. I don't know.
23 Q. Was it there in 1992?
24 A. It was in '92 when I was there.
L.A. REPORTING (312) 419-9292
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1 Q. Okay. Was it there in 1990?
2 A. I don't know.
3 Q. Was it there in 1989?
4 A. Don't know.
5 Q. Was it there in 1988?
6 A. I don't know when they got that
7 easement. I don't know.
8 Q. Was it there in 1987?
9 A. I don't believe so.
10 Q. So you don't know if it was between
11 1988 or 1987, fair statement?
12 A. Fair statement? The first time I was
13 able to establish -- let's go back. Are you going
14 back to the discharge itself to Grayslake?
15 Q. No. I'm talking about spigot.
16 A. Well, the spigot -- I first got -- for
17 one thing, when they actually got the easement to
18 put in this outfall underneath the railroad tracks,
19 that's first, and then second is to get an
20 acceptable sampling
21 point. In previous inspections when you opened up
22 the manhole, there was a pipe going through the
23 manhole but --
24 MR. JAWGIEL: Your Honor, I would ask
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1 that his response be stricken from the record
2 as nonresponsive.
3 MR. MURPHY: Your Honor, absolutely
4 not. He's responding. He's trying to figure
5 out when the spigot was there. He's trying
6 to say during certain inspections on certain
7 dates, it wasn't there. It's exactly
8 responsive.
9 HEARING OFFICER SUDMAN: I mean, I'm
10 going to allow his answer to stand but can we
11 just cut to the chase here?
12 BY MR. JAWGIEL:
13 Q. You don't know when the spigot was
14 installed, do you, sir?
15 A. I was only -- you're right. I was
16 only able to establish it was installed in 1992.
17 Q. You don't know if it was installed in
18 1992, you just know it existed in '92? You don't
19 know when it was installed, do you?
20 A. Well, I tried to establish that before
21 but I was met with resistance.
22 Q. Once?
23 A. Once.
24 Q. Back in 1987?
L.A. REPORTING (312) 419-9292
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1 A. No, I think that was later.
2 Q. Where did you get the sampling that
3 you took in March of 1995?
4 A. Are we talking about the Avon drainage
5 ditch?
6 Q. From the farm tile.
7 A. In earlier testimony, I explained I
8 took a cooler and I went to the tile and grabbed a
9 sample.
10 Q. Okay. And you were actually on the
11 farm property, weren't you, when you were taking
12 that?
13 A. Yes, I was.
14 Q. Did you ever notify Skokie Valley
15 Asphalt that they had failed to file a DMR?
16 A. Did I personally?
17 Q. Yes.
18 A. No.
19 Q. Was that part of your responsibility
20 as someone in the field for this particular
21 department to look for a compliance of filing DMRs?
22 A. The only administrative responsibility
23 I have in the field is to verify whether the DMRs
24 are correct.
L.A. REPORTING (312) 419-9292
196
1 Q. So whether or not one is filed or not
2 is not your responsibility; is that correct?
3 A. It's my responsibility if we have
4 violations to at least alert the compliance
5 assurance section if we have violations. There is
6 an auditing system as I understand it.
7 But I do acknowledge if there are
8 or not submittals of DMRs. But whether it's my
9 personal responsibility to initiate a compliance
10 inquiry letter, it can be.
11 Q. Okay. Did you ever initiate a
12 compliance letter regarding missing DMRs for Skokie
13 Valley?
14 A. I might have mentioned it on a report
15 or memo, but I don't remember.
16 Q. You might have mentioned it? Do you
17 have that report or memo with you?
18 A. I don't remember.
19 Q. So you're speculating?
20 A. I'm speculating, right.
21 Q. Okay. It's been your experience that
22 the Illinois EPA looses DMRs on occasions; isn't
23 that correct?
24 A. The Illinois EPA looses DMRs?
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1 Q. (Indicating.)
2 A. I personally haven't heard of it, but
3 I imagine anything is possible.
4 Q. In your 22 years of experience with
5 the Illinois EPA, are you aware of the EPA ever
6 mishandling documents that were submitted by a
7 facility, misfiling them, sending them to the wrong
8 person, sending you documentation that wasn't within
9 your region or anything along those lines?
10 A. Yes, I have.
11 MR. MURPHY: Madam Hearing Officer,
12 that was a compound question.
13 HEARING OFFICER SUDMAN: That was a
14 pretty compound question but the gist of it
15 was --
16 MR. JAWGIEL: Mishandling of
17 documents.
18 HEARING OFFICER SUDMAN: --
19 mishandling of documents, so --
20 THE WITNESS: Yes, I have.
21 BY MR. JAWGIEL:
22 Q. Were Mr. Larry Frederick and
23 Mr. Richard Frederick involved personally in the
24 renewal of the NPDES permit as far as you're aware?
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1 MR. MURPHY: Objection, calls for
2 speculation.
3 MR. JAWGIEL: I said as far as he's
4 aware.
5 HEARING OFFICER SUDMAN: As far as
6 you're aware, you can go ahead and answer it.
7 THE WITNESS: I believe they had some
8 signatory requirement.
9 BY MR. JAWGIEL:
10 Q. Beyond that, anything else that you're
11 aware of that they did?
12 A. I wasn't privy to the actual
13 application process on their behalf.
14 Q. Was it your understanding that the
15 NPDES permit that was issued to Skokie Valley named
16 Skokie Valley as the permittee only?
17 A. Yes.
18 Q. And is it your understanding that
19 Skokie Valley as permittee was the entity required
20 to submit the DMRs?
21 A. Yeah, I looked at that as the entity,
22 that's correct, Skokie Valley Asphalt. That's who
23 was issued the NPDES permit.
24 Q. So would it be fair to say that
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1 Larry Frederick and Richard Frederick were not the
2 permittees under the NPDES permit as you're aware of
3 it to Skokie Valley; is that correct?
4 A. Well, the permit goes to Skokie Valley
5 Asphalt. The responsible official is whoever signed
6 off on the permit application.
7 Q. When you say responsible individual,
8 are you talking about the person that certifies the
9 NPDES at the bottom of the -- I'm sorry, certifies
10 the DMR, at the bottom of the DMR?
11 A. Well, that's who they say. It's not
12 always that way. I mean, there's -- whoever is the
13 responsible official on the permit application and
14 whoever is the responsible official on the DMR is
15 who they say it is.
16 Q. Well, when you say responsible person
17 on the DMR, are you talking about the person who
18 signs the DMR certifying the DMR?
19 A. Well, that's who they say is the
20 responsible official certifying that DMR.
21 Q. Okay. Well, who was the responsible
22 party with respect to the NPDES permit that was
23 issued to Skokie Valley?
24 A. You're talking about the original
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1 NPDES permit? I don't have the permit application
2 in front of me.
3 Q. So as you sit here today, you don't
4 know who that person was?
5 A. That's correct.
6 Q. Has it been your experience in dealing
7 with I would assume many different types of
8 businesses that smaller businesses have difficulty
9 understanding the requirements of the NPDES permit?
10 MR. MURPHY: Objection, calls for
11 speculation.
12 MR. JAWGIEL: I'm asking in his
13 experience.
14 HEARING OFFICER SUDMAN: Well, in your
15 experience, if you have any idea, you can
16 answer.
17 THE WITNESS: All right. In my
18 experience, smaller -- when you say smaller,
19 you mean -- smaller operations do have a
20 tendency not to understand the permit
21 conditions as a whole.
22 I mean, not all of them. The
23 majority of them perfectly do, but I do see a
24 pattern there sometimes with smaller
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1 permittees.
2 BY MR. JAWGIEL:
3 Q. Okay. And what are you aware of the
4 Illinois EPA doing in order to educate or edify the
5 smaller permittees into what they need to do?
6 MR. MURPHY: Madam Hearing Officer,
7 objection, relevance. This has no bearing on
8 the case.
9 HEARING OFFICER SUDMAN: This is
10 really getting a little off. I don't know
11 where this is going. I mean, I agree with
12 him.
13 MR. JAWGIEL: Well, I think it goes to
14 the fact that if he's out there complaining
15 that they don't have certain things, what
16 does he do in order to educate the person so
17 they can comply.
18 HEARING OFFICER SUDMAN: But I don't
19 think the People have alleged he's in a
20 capacity to do that, and I don't think he's
21 testified to anything to that effect.
22 BY MR. JAWGIEL:
23 Q. Okay. As you sit here today, do you
24 have any recollection of any conversations you've
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1 had with Larry Frederick and I mean, verbatim
2 recollection?
3 A. Maybe some verbatim, yes, I guess.
4 Q. Okay. What conversation do you
5 remember having with Larry Frederick verbatim?
6 MR. COHEN: Objection. There's no
7 relevancy to this question to anything. If
8 he wants to say a conversation related to
9 DMRs or the NPDES permit, then maybe we can
10 talk about it at this hearing.
11 HEARING OFFICER SUDMAN: I agree.
12 Could you be a little bit more specific?
13 MR. JAWGIEL: Sure.
14 BY MR. JAWGIEL:
15 Q. Do you remember having any
16 conversations with Larry specifically regarding the
17 requirements of the NPDES permit?
18 A. With Larry regarding the NPDES permit,
19 no.
20 Q. Did you ever check to see how the
21 samples were being analyzed for Skokie Valley during
22 the period of time where they held the NPDES permit?
23 A. I believe that during inspections I
24 did look at some of their lab sheets which they got
L.A. REPORTING (312) 419-9292
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1 back from Northshore Sanitary District who I believe
2 was their contract lab.
3 Q. Okay. And when you reviewed those
4 documents, you found them to be in order?
5 A. Generally, yes.
6 Q. Did you find anything to be out of
7 order?
8 A. I don't remember anything being out of
9 order specifically.
10 MR. MURPHY: I'm sorry. I've got to
11 object on vagueness because I don't know what
12 out of order or in order means.
13 MR. JAWGIEL: Those are the words he
14 used. That's the testimony of the witness.
15 MR. MURPHY: That was in the question.
16 You can't fault him for using those words in
17 the answer when it was in the question.
18 MR. JAWGIEL: Your Honor, he used that
19 in his prior answer.
20 HEARING OFFICER SUDMAN: Well, would
21 you like to phrase it as anything unusual, is
22 that what you mean?
23 MR. JAWGIEL: I think I asked him when
24 you reviewed those documents, did you find
L.A. REPORTING (312) 419-9292
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1 them to be -- well, let me ask this question.
2 BY MR. JAWGIEL:
3 Q. When you reviewed those particular
4 documents, those reports, did you find that they
5 were in compliance or what your expectations were
6 for analyzing those samples?
7 A. I could verify that Northshore
8 Sanitary District received and did an analysis.
9 Q. You're aware that Skokie Valley
10 Asphalt Company no longer has an NPDES permit; is
11 that correct?
12 A. Yes.
13 Q. Are you also aware that the entity
14 Skokie Valley no longer exists?
15 A. No.
16 Q. If, for example, Skokie Valley -- for
17 the sake of this question -- no longer exists as a
18 legal entity in the State of Illinois, is it your
19 understanding they would no longer have a
20 requirement to file a DMR in the current status of
21 the NPDES?
22 A. Whoever is the owner of the facility
23 under the NPDES permit is the one who's required to
24 submit a DMR.
L.A. REPORTING (312) 419-9292
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1 Q. Is the NPDES permit transferable?
2 A. Yes.
3 MR. JAWGIEL: That's all I have.
4 HEARING OFFICER SUDMAN: Thank you.
5 Redirect?
6 MR. MURPHY: I have a few.
7 R E D I R E C T E X A M I N A T I O N
8 BY MR. MURPHY:
9 Q. Mr. Jawgiel asked you a question about
10 the car dealership?
11 A. Yes.
12 Q. You testified that it was located
13 north of Skokie Valley Asphalt?
14 A. Yes.
15 Q. It's also located north of the farm
16 tile where you collected the samples?
17 A. Yes.
18 Q. How far north is it from there?
19 A. I don't know, maybe about a quarter of
20 a mile.
21 Q. It's actually downstream from where
22 you collected the samples?
23 A. Yes.
24 Q. It's downstream from where the farm
L.A. REPORTING (312) 419-9292
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1 tile was?
2 A. Yes.
3 Q. Has it ever been your experience in
4 your work with Illinois EPA and the work you did to
5 ensure compliance with water pollution laws and
6 regulations that contaminants travel against current
7 upstream?
8 MR. JAWGIEL: Your Honor, I'm going to
9 object. He's talking about upstream on the
10 actual ditch itself, but we don't know the
11 direction of the drain tiles or where the
12 drain tiles patch in or discharge, so it's a
13 foundational objection.
14 HEARING OFFICER SUDMAN: Well, that is
15 true. I don't know the direction of the
16 water, so I don't know --
17 MR. JAWGIEL: Regardless of the water
18 direction, we don't know where the drain
19 tiles are from the car dealership to this
20 area, so that's really the issue because
21 that's where the samples are coming out of is
22 the farm tile. So regardless of how the
23 water is moving on the drainage ditch, it has
24 no relevance whatsoever.
L.A. REPORTING (312) 419-9292
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1 It has to do with the
2 configuration of these tiles underneath the
3 ground. And it was clear from his testimony
4 there was no investigation regarding other
5 contributory sources into this tile,
6 although, they thought there were some.
7 MR. MURPHY: I'll withdraw the
8 question.
9 HEARING OFFICER SUDMAN: Okay.
10 BY MR. MURPHY:
11 Q. Wasn't it your testimony that you did
12 try to investigate other tie-ins to the farm tile
13 but you were unsuccessful in finding any?
14 A. That's true.
15 Q. And it's difficult to do so?
16 A. That's true. Usually farm tiles are
17 not connected to storm sewers.
18 Q. Mr. Kallis, do you need a warrant to
19 inspect properties to ensure compliance with the
20 Illinois Environmental Protection Act and
21 Regulations?
22 A. No.
23 Q. Do you need a warrant to take samples?
24 A. No.
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1 Q. There's a little bit of confusion back
2 and forth during your cross-examination about these
3 subject matters but I just wanted to be clear about
4 this now.
5 Was Skokie Valley Asphalt ever
6 permitted to discharge to Avon drainage ditch?
7 A. No.
8 Q. Was Skokie Valley allowed to discharge
9 to Grayslake without an NPDES permit?
10 A. No.
11 Q. Was Skokie Valley Asphalt allowed to
12 discharge into Grayslake or a tributary to Grayslake
13 after the NPDES expired?
14 MR. JAWGIEL: Your Honor, I'm going to
15 object. This has been asked and answered.
16 We've been through this ad nauseam.
17 HEARING OFFICER SUDMAN: Well, he's
18 clarifying it for the record. I don't have a
19 problem with that.
20 THE WITNESS: No.
21 BY MR. MURPHY:
22 Q. When did you first see the accessible
23 representative sampling point?
24 A. In '92, early '92.
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1 Q. And the NPDES was issued in 1986?
2 A. (Indicating.)
3 Q. In fact you tried to see the
4 accessible sampling point in 1991, correct?
5 MR. JAWGIEL: I'm going to object to
6 the leading nature. He's leading on the
7 dates. He can simply ask him when he went
8 out there, when he tried to do it.
9 MR. MURPHY: He's right. I can do
10 that.
11 HEARING OFFICER SUDMAN: Okay.
12 BY MR. MURPHY:
13 Q. Did you try to see the representative
14 sampling point in May of 1991?
15 A. Yes.
16 Q. Were you allowed to see it?
17 A. No.
18 Q. In fact, the Frederick brothers
19 stopped you from seeing it?
20 A. Not directly, but essentially, yes.
21 MR. MURPHY: Nothing more at this
22 time.
23 MR. JAWGIEL: Literally just a couple
24 more questions.
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1 HEARING OFFICER SUDMAN: Okay.
2 R E C R O S S - E X A M I N A T I O N
3 BY MR. JAWGIEL:
4 Q. When you say not directly, did anybody
5 from Skokie Valley tell you you couldn't go see it?
6 A. Well, I was more or less told to leave
7 the premises in a rather volatile way and I thought
8 it would be better if I left.
9 Q. Well, isn't that a direct -- directly
10 telling you you can't go into it as opposed to not
11 directly? I mean, it's either one or the other,
12 sir.
13 It's either they told you to leave
14 the premises and you were directly told you couldn't
15 see it or they said they didn't do that?
16 A. I would find it very hard to testify
17 in this room if I was told to get out of this
18 building.
19 Q. Well, you have authority, don't you,
20 sir, that if someone tells you to get off the
21 property that you could maybe file a report and that
22 they prevented me from doing my job and that I
23 should maybe take it to the next level so I can get
24 on the property and do my job?
L.A. REPORTING (312) 419-9292
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1 A. I did write it in a report.
2 Q. Do you have that report?
3 A. Somewhere here, yeah.
4 Q. Okay. Is that the 1991 report that we
5 were talking about here?
6 A. Yeah, I think so.
7 Q. Okay. And did you go back out there
8 with any sort of special authority afterwards to do
9 your job?
10 A. I didn't need the authority later on.
11 I just went there and --
12 Q. And they let you on to do your job?
13 A. Yes, they did.
14 MR. JAWGIEL: That's all I have.
15 MR. MURPHY: No more.
16 HEARING OFFICER SUDMAN: Okay.
17 All right, Mr. Kallis, we are
18 finished with you for now, although, I
19 understand that --
20 MR. JAWGIEL: We may call him in our
21 case in chief tomorrow.
22 HEARING OFFICER SUDMAN: Okay.
23 (Witness excused.)
24 MR. MURPHY: Could we have a moment
L.A. REPORTING (312) 419-9292
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1 off the record to discuss timing for
2 Mr. Kallis?
3 HEARING OFFICER SUDMAN: Yes.
4 Let's go off the record.
5 THE REPORTER: Okay.
6 (Whereupon, a discussion
7 was had off the record.)
8 (Whereupon, after a short
9 break was had, the
10 following proceedings
11 were held accordingly.)
12 HEARING OFFICER SUDMAN: We are back
13 on the record and we are ready for the People
14 to call their next witness.
15 MR. MURPHY: Madam Hearing Officer,
16 the State calls Donald Klopke.
17 HEARING OFFICER SUDMAN: Mr. Klopke,
18 would you please have a seat over there and
19 the court reporter will swear you in.
20 (Witness sworn.)
21
22
23
24
L.A. REPORTING (312) 419-9292
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1
2
3 WHEREUPON:
4 DONALD KLOPKE
5 called as a witness herein, having been first duly
6 sworn, deposeth and saith as follows:
7 D I R E C T E X A M I N A T I O N
8 BY MR. MURPHY:
9 Q. Would you please state your name for
10 the record?
11 A. Yes. My name is Don Klopke. I'm
12 with --
13 Q. How do you spell your last name?
14 A. K-L-O-P-K-E.
15 Q. Who is your employer?
16 A. The Illinois Environmental Protection
17 Agency.
18 Q. How long have you been employed with
19 Illinois EPA?
20 A. March of 1980.
21 Q. So approximately 23 years?
22 A. Correct.
23 Q. Which bureau do you work for at
24 Illinois EPA?
L.A. REPORTING (312) 419-9292
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1 A. I work currently with the office of
2 emergency response in the emergency operations unit.
3 Q. Did that office of emergency response
4 go by a different name prior?
5 A. I believe back at the time of this
6 case it was the office of chemical safety, and I was
7 in the response unit similar -- basically the same
8 group.
9 Q. Same function?
10 A. Same function.
11 Q. What does the office of emergency
12 response or the emergency response unit do?
13 A. Well, our task -- our mission is to
14 protect the public health and safety in the
15 environment and with that we respond to emergencies
16 dealing with chemicals, petroleum. We deal with
17 complaints of oil or something on a body of water.
18 We, you know, do odor complaints, things like that.
19 Q. Have you worked for the ERU or
20 emergency response unit the entire time you worked
21 at Illinois EPA?
22 A. No. I worked with the bureau of water
23 roughly from about -- full-time from about 1980 to
24 1984. In '84, I started to work with the emergency
L.A. REPORTING (312) 419-9292
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1 response unit on a semi full-time basis, and then in
2 '86, I believe I became a full-time member of the
3 emergency response unit.
4 Q. Okay. How many of the situations you
5 just described have you responded to on behalf of
6 Illinois EPA?
7 A. Hundreds. I would say hundreds of
8 emergencies over the course of that time.
9 Q. Okay. And how many of these hundreds
10 of emergencies dealt with spills of oil or releases
11 of oil?
12 A. I would say about 50 percent or more.
13 Q. What was your job title at Illinois
14 EPA at the time -- well, let we withdraw that. I'll
15 come back to that in a moment.
16 Can you briefly describe for the
17 board your duties while working in the emergency
18 response unit?
19 A. As I mentioned a little bit earlier,
20 we respond to a lot of different types of
21 emergencies, citizens' complaints, requests, you
22 know, from fire departments. Our goal is to, you
23 know, protect public health and safety. When
24 incidents come in, complaints come in, we go out and
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1 try to do the front end of an investigation to
2 confirm that there's something out there on certain
3 situations.
4 Other situations, leaking
5 underground storage tanks, we'll get a call on the
6 emergency end to go out -- if the material is moving
7 off the property, we go out to assist the local fire
8 department to try and find out who the responsible
9 party is and then work with that responsible party
10 to try and come up with a solution to mitigate any
11 type of a release.
12 We deal with the pipeline breaks,
13 petroleum and chemicals, again, working --
14 responding to it, verifying that there's something
15 there and then working with the responsible party.
16 Once we find that person, we have to come up with a
17 solution.
18 Other things that we deal with
19 are, as I mentioned, odor complaints coming out of
20 fixed facilities or, you know, other types of
21 facilities. Another thing that we deal with is
22 abandonments, things that are left on the side of
23 the road that might be hazardous to the public.
24 We'll get a call from the local
L.A. REPORTING (312) 419-9292
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1 authority to try and identify it and then hopefully
2 assist in getting those things removed. Most
3 recently in the last couple of years we've also
4 become part of a weapons of mass destruction team
5 being the science component along with the state
6 police tactical response for counter-terrorism.
7 Q. Thank you.
8 Can you briefly describe your
9 education?
10 A. Bachelor's degree in biology from the
11 University of Illinois, Champaign and a master's in
12 environmental science in civil engineering also from
13 the University the Illinois in Champaign.
14 Q. Was the degree a bachelor's of
15 science?
16 A. Yes.
17 Q. And the master's was a master's of
18 science?
19 A. Correct.
20 Q. What about training provided by
21 Illinois EPA and/or any other agency?
22 A. Every year we're required through OSHA
23 to have an eight-hour refresher training and that's
24 provided by the state. We also have the opportunity
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1 probably on the average of a week of additional
2 training that might be provided by the USEPA who's a
3 big source in training due to the lack of cost to
4 attend also, you know, attend training through the
5 Illinois Fire Service Institute.
6 I attended a national spill
7 response school provided from the Corpus Christi
8 University in Texas, the U.S. Coast Guard response
9 school in Chicago, air monitoring, sampling of
10 hazardous materials, emergency response to hazardous
11 materials, things like that.
12 Q. The spill classes that you mentioned,
13 did they relate to oil spills?
14 A. That's correct.
15 Q. So both the one in Corpus Christi and
16 the one by the Coast Guard?
17 A. Yes.
18 Q. Are you familiar with the site
19 formally known as Skokie Valley Asphalt in
20 Grayslake that is the subject of these proceedings?
21 A. Yes, I am.
22 Q. And are you familiar with the area
23 surrounding Skokie Valley Asphalt?
24 A. Yes, I am.
L.A. REPORTING (312) 419-9292
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1 Q. How are you familiar with either that
2 site -- or both the site and surrounding area?
3 A. I visited those sites back --
4 Q. Do you remember when?
5 A. I know I was out there on the 19th of
6 April 1995 and possibly I may have been in the area
7 previous to that.
8 Q. Mr. Klopke, have you inspected sites
9 where there's been possible oil contamination?
10 A. Yes.
11 Q. How did ERU or OER as it's currently
12 known handle such complaints?
13 A. Well, we respond to the complaint to
14 first verify whether there is or isn't a problem in
15 the impacted area and then we will, you know, make a
16 search of the area, the likely potentially
17 responsible parties, and do as much legwork as we
18 can to both look visually at the site's and then
19 also talk to the owners of the property to see if
20 there's been any type of accidents on the site that
21 might, you know, may not have been reported but now
22 is showing up off-site.
23 Q. Okay. Does any of your efforts
24 include working with USEPA on these oil spill cases?
L.A. REPORTING (312) 419-9292
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1 A. Yes, it does.
2 Q. Okay. Why do you call or coordinate
3 with USEPA in those instances where you do?
4 A. In certain situations where we're not
5 able to find a responsible party to pay for the
6 cleanup, we as a state agency do not have funding to
7 hire a contractor to go out there and do the
8 cleanup.
9 We then call the USEPA who has
10 that capability, that resource, to be able to hire
11 somebody in the event that we can't find a person to
12 take responsibility and we also get them out there
13 for their expertise.
14 Q. And what type of business was Skokie
15 Valley Asphalt?
16 A. I believe it was an asphalt type -- an
17 asphalt business or something similar. As the
18 company name implies, I would think that they were
19 in the business of --
20 MR. JAWGIEL: Your Honor, I'm going
21 to object. He's speculating at this point
22 and I ask that it be struck.
23 HEARING OFFICER SUDMAN: Well, I think
24 he's answered it.
L.A. REPORTING (312) 419-9292
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1 An asphalt company?
2 THE WITNESS: Right.
3 MR. MURPHY: Thank you.
4 BY MR. MURPHY:
5 Q. Could you describe the area around
6 Skokie Valley Asphalt, the former Skokie Valley
7 Asphalt site?
8 A. Well, the Avon Fremont ditch lies to
9 the east. There's railroad tracks that lye to the
10 north. A farm field, I believe, surrounded the
11 facility and -- yeah. I recall a farm field
12 surrounding it at least on the north -- or I mean,
13 on the east, south, and west sides of the property.
14 Q. Were there any other industries,
15 factories or gas stations in the area?
16 A. Not that I know of other than Mitch's
17 Landscaping was to the west.
18 Q. What kind of company was Mitch's
19 Landscaping?
20 A. Again, from recollection was a
21 landscaping company that would provide landscaping
22 services to either subdivisions and personal
23 landscaping or possibly, you know, larger companies.
24 Q. Now, you mentioned you went to the
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1 site in early 1995?
2 A. Correct.
3 Q. How soon after arriving at the Avon
4 drainage ditch in the former Skokie Valley Asphalt
5 site did you determine what kind of release was
6 involved?
7 A. Well, I immediately saw the sheen, the
8 oil sheen on the surface -- the petroleum sheen on
9 the surface of the Avon Fremont ditch and there was
10 a strong odor of petroleum.
11 Q. Okay. So those two things indicated
12 to you that it was an oil spill or oil release?
13 A. Correct.
14 Q. And that was based upon your training
15 and experience?
16 A. Correct.
17 Q. In which direction does the Avon
18 drainage ditch flow?
19 A. It flows to the north.
20 Q. Okay. Is there a farm field tile
21 outfall that connects to Avon drainage ditch?
22 A. Yes.
23 Q. And where is that located?
24 A. That is located on the west bank of
L.A. REPORTING (312) 419-9292
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1 the Avon Fremont ditch south of the railroad tracks.
2 Q. Where is that field tile in relation
3 to the Skokie Valley Asphalt site?
4 A. Due east.
5 Q. Okay. When you inspected the Skokie
6 Valley Asphalt site in April of '95, who else was
7 with you that day?
8 A. Ken Savage from our agency and also
9 Betty Lavis from the USEPA.
10 Q. Why were USEPA personnel with you that
11 day?
12 A. They were contacted by our agency to
13 assist in dealing with the problem in the Avon
14 Fremont ditch.
15 Q. You mentioned that the Avon drainage
16 ditch flows north. Does it flow into Grayslake, the
17 town?
18 A. It flows -- I believe, it flows
19 through Grayslake, the town.
20 Q. As opposed to Grayslake, the body of
21 water?
22 A. Correct.
23 Q. Did you notice anything in the Avon
24 drainage ditch in that direction downstream from the
L.A. REPORTING (312) 419-9292
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1 field tile?
2 A. I recollect going across a subdivision
3 street that goes over the Avon Fremont drainage and
4 I believe -- I recollect seeing and smelling the
5 diesel fuel at that point.
6 Q. And that was downstream from the field
7 tile?
8 A. Yes.
9 Q. Did you inspect the area around
10 Mitch's Green Thumb Nursery?
11 A. I recall visiting Mitch's Green Thumb,
12 yes.
13 Q. Did you see any oil there?
14 A. No.
15 Q. And could the oil have been coming
16 from any other areas during your inspection of April
17 of '95 --
18 MR. JAWGIEL: I'm going to object.
19 MR. MURPHY: Well, can I finish the
20 question?
21 MR. JAWGIEL: Sure. I'm sorry.
22 Q. -- other than the Skokie Valley
23 Asphalt site?
24 MR. JAWGIEL: Objection to the
L.A. REPORTING (312) 419-9292
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1 foundation, your Honor.
2 HEARING OFFICER SUDMAN: Well, he did
3 just testify that he had been to several
4 other places, correct?
5 MR. JAWGIEL: Several other places
6 that we have not talked about. He asked him
7 did you see oil at Mitch's Green Thumb
8 Nursery and he said no, but he also said that
9 he smelled diesel fuel, so we don't even know
10 what the substance is in the water.
11 We have multiple substances that
12 it possibly could be. It hasn't been
13 established what the substance actually is.
14 HEARING OFFICER SUDMAN: And what was
15 your question again?
16 MR. MURPHY: My question was could the
17 oil that he observed in the Avon drainage
18 ditch have been coming from other areas
19 during his inspection of April of '95 other
20 than the Skokie Valley Asphalt site?
21 HEARING OFFICER SUDMAN: I'm going to
22 allow it.
23 You may answer.
24 THE WITNESS: I did not see any other
L.A. REPORTING (312) 419-9292
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1 responsible parties or could not confirm that
2 anything else was coming off of other
3 properties.
4 BY MR. MURPHY:
5 Q. Did you observe anything at the Skokie
6 Valley Asphalt site that suggested to you it was
7 coming from that site?
8 A. Well, I recall seeing above ground
9 storage tanks on the property which, you know, not
10 having -- from afar seeing above ground storage
11 tanks, and then there's always the possibility as a
12 responder that a large facility might have
13 underground storage tanks there that might be a
14 contributing factor.
15 MR. JAWGIEL: Your Honor, I'm going to
16 object and ask that that be struck as being
17 speculative. If a large facility may have it
18 or not is speculation.
19 MR. MURPHY: He's just giving his
20 opinion based on his experience.
21 HEARING OFFICER SUDMAN: I agree.
22 You can give your opinion.
23 BY MR. MURPHY:
24 Q. Mr. Klopke, I'd like to direct your
L.A. REPORTING (312) 419-9292
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1 attention to tab 25 in the binder that you have in
2 front of you.
3 A. Yes.
4 Q. Take a moment to look through that.
5 (Witness perusing
6 the document.)
7 A. Okay.
8 Q. Do you recognize it?
9 A. Yes.
10 Q. What is it?
11 A. It's a pol representative sent by the
12 United States Environmental Protection Agency.
13 Q. What is a pol representative?
14 A. It's a pollution report.
15 Q. That's an acronym?
16 A. Short for pollution report.
17 Q. It was prepared by the USEPA?
18 A. Correct.
19 Q. What date does it give?
20 A. May 3, 1995.
21 Q. And who is this memo from?
22 A. I believe it's from -- it reads
23 Betty Lavis, USEPA.
24 Q. And she was the individual that was
L.A. REPORTING (312) 419-9292
228
1 present with you in April of '95 at or near the
2 site?
3 A. Correct.
4 Q. And does it indicate who Betty Lavis
5 sent this memo to?
6 A. A long list of people, including
7 Ken Savage and myself, Don Klopke, from the IEPA
8 ERU, monitoring response unit.
9 Q. Is this a document used in the
10 ordinary course of business between Illinois EPA and
11 USEPA when there's an oil spill in a body of water?
12 A. Yes.
13 Q. Is it kept in the ordinary course of
14 business by Illinois EPA?
15 A. Yes.
16 Q. Is this a true and accurate copy of
17 that report?
18 A. Yes.
19 Q. Does the report indicate whether USEPA
20 was successful in determining the source of the
21 petroleum release into the Avon drainage ditch?
22 A. Yes.
23 Q. Where does it do that?
24 A. Well, under actions taken on page 2,
L.A. REPORTING (312) 419-9292
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1 on April 25, it states that the OSC had planned to
2 do additional sampling but was met at the site by
3 the owners of SVAC who said they had found a leak
4 and would address the problem.
5 Q. What does an OSC stand for?
6 A. On-scene coordinator.
7 Q. And what does SVAC stand for?
8 A. Skokie Valley Asphalt Company.
9 Q. Does the report at tab 25 indicate who
10 the owners and operators of Skokie Valley Asphalt
11 Company were?
12 A. I believe on the first page on site
13 background, it indicates Richard and Larry
14 Frederick, owner/operator.
15 Q. So this report indicates that it was
16 Larry and Richard Frederick on behalf of Skokie
17 Valley Asphalt Company who were the individuals --
18 strike that.
19 So this report indicates that
20 Larry and Richard Frederick were the individuals on
21 behalf of Skokie Valley Asphalt Company that dealt
22 with the regulatory agencies with respect to this
23 environmental issue?
24 MR. JAWGIEL: Your Honor, I'm going to
L.A. REPORTING (312) 419-9292
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1 object. This person is not the person who
2 drafted this document. He would have no
3 knowledge of that and, therefore, it is pure
4 speculation.
5 MR. MURPHY: Absolutely not. It's
6 a business record. I've laid the foundation
7 for that and anything --
8 HEARING OFFICER SUDMAN: I agree.
9 You may answer, if you know.
10 MR. JAWGIEL: Your Honor, he can lay
11 the foundation for a business record, but if
12 the person who is testifying didn't draft the
13 document, they can't interpret the document.
14 The documents then speak for themselves and
15 can be admitted into evidence.
16 If there's questionable
17 interpretation of the document, it's up to
18 the drafter to clarify it, not speculation on
19 the part of a witness who did not draft this
20 particular document.
21 HEARING OFFICER SUDMAN: He can give
22 his opinion.
23 MR. JAWGIEL: We'll object as not
24 disclosed pursuant to Supreme Court Rule 213.
L.A. REPORTING (312) 419-9292
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1 HEARING OFFICER SUDMAN: Okay.
2 THE WITNESS: Could you repeat the
3 question, please?
4 MR. MURPHY: Sure.
5 BY MR. MURPHY:
6 Q. So Larry Frederick and Richard
7 Frederick were the individuals on behalf of Skokie
8 Valley Asphalt Company that dealt with the
9 regulatory agencies, USEPA, and Illinois EPA with
10 respect to this environmental issue?
11 MR. JAWGIEL: Same objection, your
12 Honor, to the same question he asked.
13 HEARING OFFICER SUDMAN: Same ruling.
14 Overruled.
15 THE WITNESS: Yes.
16 BY MR. MURPHY:
17 Q. Does the report explain the sources of
18 contamination at the Skokie Valley Asphalt site?
19 A. Well, it notes a leaking underground
20 storage tank and also the possibility that -- under
21 actions taken also under May 1, 1995, it notes that
22 an unregistered leaking underground storage tank as
23 a possibility of the alleged release -- or the
24 release.
L.A. REPORTING (312) 419-9292
232
1 Q. Okay. Directing your attention to
2 page 3 under key issues, D, what does the report
3 indicate there?
4 MR. JAWGIEL: I'm sorry. Which
5 section?
6 MR. MURPHY: Section D, page 3.
7 MR. JAWGIEL: Thank you.
8 THE WITNESS: It also not only
9 mentions the 2000-gallon storage tank but it
10 also mentions the possibility that there may
11 be additional product under the property that
12 might be contributing to the release.
13 BY MR. MURPHY:
14 Q. Product being what?
15 A. Petroleum.
16 Q. From the operations at the site?
17 A. Correct.
18 MR. MURPHY: May I have one moment?
19 HEARING OFFICER SUDMAN: Yes.
20 (Brief pause.)
21 MR. MURPHY: Just a couple more
22 questions.
23 HEARING OFFICER SUDMAN: Sure.
24 BY MR. MURPHY:
L.A. REPORTING (312) 419-9292
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1 Q. Who is Ken Savage?
2 A. He was a partner in the emergency
3 response unit at that time, an employee in the
4 emergency response unit.
5 Q. And you worked with him?
6 A. Yes.
7 Q. You worked with him on this case?
8 A. Yes.
9 Q. Was he involved in any investigations
10 of the site apart from you?
11 A. Yes.
12 Q. And when did they occur?
13 A. I believe the file shows some work
14 done in December and also in February, December of
15 '94 and February of '95.
16 MR. MURPHY: Nothing further, Madam
17 Hearing Officer.
18 HEARING OFFICER SUDMAN: Thank you.
19 Mr. Jawgiel?
20 MR. JAWGIEL: Yes. Thank you.
21 C R O S S - E X A M I N A T I O N
22 BY MR. JAWGIEL:
23 Q. Good afternoon, Mr. Klopke.
24 A. Hi.
L.A. REPORTING (312) 419-9292
234
1 Q. You personally did not conduct any
2 tests which would definitively locate the source of
3 the substance that was coming out of the farm tile
4 back in 1995 in the SVA area; is that correct?
5 A. Not that I recall.
6 Q. You didn't personally inspect the
7 above ground storage tanks that were on the SVA
8 property when you were out there; is that correct?
9 A. My recollection is we did walk the
10 property on the 19th.
11 Q. Did you inspect the above ground tanks
12 that you talked about earlier?
13 A. Not physically.
14 Q. Okay. So you saw that they were there
15 and you believe they could have been a potential
16 source of this substance and you didn't go inspect
17 them; is that correct?
18 A. That's correct.
19 Q. Now, with respect to underground
20 storage tanks, you had indicated that a facility
21 like SVA possibly could have had underground storage
22 tanks; is that correct?
23 A. That's correct.
24 Q. And while you were out at the site,
L.A. REPORTING (312) 419-9292
235
1 did you ever go and look around the facility for
2 anything that would be indicative of an underground
3 storage tank?
4 A. Yes.
5 Q. Did you find any?
6 A. Yes.
7 Q. Did you look inside to see if there
8 was any indication of a leak in those tanks, for
9 example, water leaking in or anything along those
10 lines?
11 A. I don't recall doing that.
12 Q. Did you take a sample of the contents
13 in the underground storage tank?
14 A. I do not recall doing that.
15 Q. Did you match up any sample whatsoever
16 of any material on the Skokie Valley site while you
17 were out there during your investigation and match
18 it to what was found in the drainage ditch?
19 A. Not that I recall.
20 Q. You had indicated that you -- well,
21 let me just ask you, you said that you saw this oily
22 substance on the drainage ditch, was it gasoline?
23 A. No.
24 Q. Was it diesel fuel?
L.A. REPORTING (312) 419-9292
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1 A. Possibly.
2 Q. Okay. Was it heating oil?
3 A. Possibly.
4 Q. Was it fertilizer based?
5 A. No, I can't say that.
6 Q. You don't know one way or the other?
7 A. No.
8 Q. So it could be or it couldn't be; is
9 that fair enough?
10 A. Heating oil?
11 Q. No, fertilizer based.
12 A. Fertilizer based as far as what?
13 Q. Well, was it a fertilizer?
14 A. I don't believe so.
15 Q. Did you test it for that sampling?
16 A. No. I just seen the sheen and smelled
17 the odor.
18 Q. Okay. So based on your smell it could
19 have been gasoline; it could have been diesel?
20 A. I did not say gasoline. I said it
21 could not be gasoline. It could be either diesel
22 or, number two, heating fuel which have very similar
23 characteristics both by odor and sight.
24 Q. Anything else that it could have been
L.A. REPORTING (312) 419-9292
237
1 in your experience?
2 A. No.
3 Q. Did you see any diesel fuel on the SVA
4 site when you inspected it?
5 A. I do not recall seeing anything on the
6 19th.
7 Q. Well, at any time that you inspected
8 the premises, did you see any diesel fuel?
9 A. I don't recall seeing any diesel fuel
10 to my knowledge on the site that I can recall.
11 Q. When you opened up -- when you saw
12 these underground storage tanks, did you smell any
13 diesel smell?
14 A. I did not open the tanks. Typically,
15 it's not our operating procedure to be opening up
16 underground storage tanks on a property.
17 Q. Well, I thought it was your
18 responsibility or at least one of your duties to
19 determine who the responsible party was?
20 A. Yes.
21 Q. Okay. And in doing so, don't you --
22 if you go to a place that you believe is the
23 responsible party, wouldn't it be part of your
24 responsibility to confirm that materials that may be
L.A. REPORTING (312) 419-9292
238
1 present on there would be the same materials that
2 you sampled out of the drainage ditch?
3 A. Usually our course of action is to
4 approach the property owner initially to see if
5 there's any type of obvious release that hadn't been
6 reported or may have been spilled or hadn't been
7 reported yet. We will try to walk the property to
8 see if there's any visual contamination.
9 If there are monitoring laws on
10 the property, we will try to open those up, but a
11 lot of our work is just trying to get a responsible
12 party or a potential responsible party to work with
13 us to try and resolve some off-site impact.
14 Q. Well, you like to use this phrase
15 responsible party, but really when you would go out
16 to a site when you did your investigation, based on
17 your investigation, you didn't know who the
18 responsible party was, you just thought SVA was a
19 potential responsible party; isn't that correct?
20 A. Yes.
21 Q. At no point in time did you actually
22 draw the conclusion that they were the responsible
23 party based on what you saw, tasted, felt, touched,
24 smelled out on the site; is that correct?
L.A. REPORTING (312) 419-9292
239
1 A. That's correct.
2 Q. You're relying solely on Ms. Lavis'
3 statements in her report regarding whether or not
4 SVA was the responsible party?
5 MR. COHEN: Objection, no time frame
6 to that question.
7 MR. JAWGIEL: Time frame? He just
8 testified five minutes ago. What kind of
9 time frame do I need? He's relying solely on
10 Ms. Lavis' report, which we talked about two
11 minutes ago.
12 HEARING OFFICER SUDMAN: What kind of
13 time frame do you mean?
14 MR. COHEN: At what point in time is
15 he relying on that as the responsible party?
16 There's a lot that's happened since the Lavis
17 report has come out that this witness may
18 know of to be able to also know who the
19 responsible party is.
20 HEARING OFFICER SUDMAN: Could you
21 please break it down?
22 BY MR. JAWGIEL:
23 Q. In the testimony you gave here today,
24 do you believe SVA was the responsible party based
L.A. REPORTING (312) 419-9292
240
1 upon Ms. Lavis' report; isn't that correct?
2 A. No. I believe there was a report by
3 Huff and Huff that was sent May 1 to our office
4 which indicates -- Huff and Huff was their
5 contractor hired by SVAC and that report states that
6 a release -- or there was product found on the
7 property and that they were taking responsibility
8 for the cleanup in the -- the cleanup of the spill
9 and also responsible for the spill itself.
10 Q. Okay. Well, let me ask you -- that
11 report said that they were taking responsibility for
12 the spill itself?
13 A. I believe so.
14 Q. You believe so?
15 A. They were. They were taking
16 responsibility for the drainage ditch and, if I
17 recall, the spill itself.
18 Q. Okay. Well, let me ask you this
19 question: In that report that you saw from Huff and
20 Huff, did you see any sort of chemical analysis that
21 would match what was in the drainage ditch and what
22 was on the facility itself?
23 A. Not that I recall.
24 Q. Okay. Other than the report from Huff
L.A. REPORTING (312) 419-9292
241
1 and Huff and Ms. Lavis' report, is there any other
2 basis for your opinion here today that SVA was the
3 facility responsible for the discharge?
4 A. There was significant work done by the
5 consultant and the release stopped soon after that
6 work was performed on the property, the release to
7 the creek. There was no -- our file did not
8 indicate any further complaints of diesel fuel in
9 the creek after work was performed on the property
10 and off the property, I believe, by Huff and Huff,
11 and that report never indicated any type of -- any
12 type of upstream responsible party that was
13 indicated by their investigation.
14 Q. Well, did Huff and Huff actually do an
15 area investigation in that report?
16 A. Not that I recall.
17 Q. Okay. So you don't know whether or
18 not they looked for other alternative sites or not;
19 is that correct?
20 A. I believe they did some off-site
21 excavation and that off-site excavation indicated --
22 did not indicate anything upstream.
23 Q. Okay. Let me ask you this question:
24 How many drain tiles fed into this farm tile in that
L.A. REPORTING (312) 419-9292
242
1 area?
2 A. I don't recall.
3 Q. Did you do any research to find out?
4 A. Not that I recall.
5 Q. Now, are you familiar with pulling
6 permits given that you have a civil engineering
7 background, pulling permits in order to do
8 excavation and drain tile installation in a village?
9 A. Repeat the question, please.
10 Q. Sure.
11 Given that you have a background
12 in civil engineering, are you familiar with the
13 process of acquiring a permit to install drain tiles
14 in a particular city, town or village?
15 A. Not that I recall.
16 Q. Did you do any investigation by going
17 to the village hall to determine whether or not they
18 had a schematic or permits or anything that would
19 indicate to you that there were contributory drain
20 tiles into this farm tile that were not SVA?
21 A. Not that I recall.
22 Q. So based on your investigation,
23 setting aside the reports from Ms. Lavis and Huff
24 and Huff, it was inconclusive whether or not SVA was
L.A. REPORTING (312) 419-9292
243
1 a responsible party?
2 MR. COHEN: I object to the form of
3 that question.
4 THE WITNESS: I would say it was
5 conclusive --
6 HEARING OFFICER SUDMAN: Sir --
7 MR. COHEN: I object to the form of
8 that question.
9 THE WITNESS: Sorry.
10 HEARING OFFICER SUDMAN: Would you
11 rephrase the question, please?
12 MR. JAWGIEL: Sure.
13 BY MR. JAWGIEL:
14 Q. Without seeing the reports from Huff
15 and Huff that you had indicated and without seeing
16 the USEPA but based solely on your investigation of
17 this site, Skokie Valley was only a potential source
18 for the substance; isn't that correct?
19 A. Well --
20 MR. COHEN: Would you repeat the
21 question?
22 MR. JAWGIEL: Sure.
23 MR. COHEN: Excuse me, your Honor. If
24 I may, I think if he limits that question to
L.A. REPORTING (312) 419-9292
244
1 the date he was out there, I think it may be
2 more understandable; it's just a suggestion.
3 HEARING OFFICER SUDMAN: Well, I don't
4 know that it's necessarily a date-dependent
5 question.
6 Are you just asking him --
7 MR. JAWGIEL: I'm just asking if he
8 set aside this report --
9 HEARING OFFICER SUDMAN: On the basis
10 of his investigation.
11 BY MR. JAWGIEL:
12 Q. Based on your investigation alone,
13 Skokie Valley was only a potential source for this
14 contamination?
15 MR. COHEN: Then I have to object to
16 the form of the question because you're
17 asking this witness to set aside portions of
18 what is part of his investigation, that being
19 the USEPA report, that they did receive that
20 they participated in and the consultant's
21 report that they did receive and relied on.
22 So if you limit it to time before
23 they get there, then I think you can ask that
24 question. But I don think you can ask him to
L.A. REPORTING (312) 419-9292
245
1 erase from his mind --
2 HEARING OFFICER SUDMAN: Yeah, I think
3 you need to be more specific on what you mean
4 by his --
5 MR. JAWGIEL: I did. I indicated to
6 him setting aside the report from
7 Ms. Lavis --
8 HEARING OFFICER SUDMAN: But what does
9 that include?
10 MR. JAWGIEL: Well, he indicated there
11 was this report, which is now Exhibit 25.
12 HEARING OFFICER SUDMAN: Yes.
13 MR. JAWGIEL: I'm asking him to set
14 that aside. And he also identified a
15 document -- or report I should say from
16 Huff and Huff, which I'm asking him to set
17 aside as well, and I'm saying based on -- if
18 we set those two documents aside based on
19 your investigation, was Skokie Valley --
20 HEARING OFFICER SUDMAN: On the date
21 that he talked about?
22 MR. JAWGIEL: Well, yeah.
23 HEARING OFFICER SUDMAN: Okay.
24 BY MR. JAWGIEL:
L.A. REPORTING (312) 419-9292
246
1 Q. When you were out on the site, Skokie
2 Valley was only a potential source for the
3 contaminants on the date that you were out
4 investigating; is that correct?
5 A. I don't want to do this to you but
6 could you please just give me that question one more
7 time?
8 Q. Sure.
9 When you concluded your
10 investigation while you were still on the site that
11 day -- I think it was in April of 1995; is that
12 right?
13 A. Yes.
14 Q. You were out there in April of 1995.
15 And when you concluded your investigation of the
16 site, was Skokie Valley only a potential source for
17 this contamination?
18 A. Yes.
19 Q. What other potential sources did you
20 list in your report for this contamination?
21 A. I don't belief I generated a report.
22 Q. All right. What other sources of
23 contamination -- potential sources of this
24 contamination were there after you completed your
L.A. REPORTING (312) 419-9292
247
1 examination?
2 A. As I mentioned earlier, the only
3 property that was near the area was Mitch's
4 Landscape.
5 Q. Did you go to the farm to see if the
6 farmland or the farm in that area had any drain
7 tiles?
8 A. No -- well, I went to the property
9 but, as you know, drain tiles aren't really
10 apparent. I mean, they're very --
11 Q. My question was did you inspect any
12 drain tiles that may have been on the farm?
13 A. No, not that I recall.
14 Q. Are you familiar that diesel fuel may
15 be on a farm for equipment, has it been your
16 experience?
17 A. There's a possibility.
18 Q. So the farm area -- you walked on the
19 property, but you didn't really -- did you talk to
20 anybody?
21 A. Well, I believe -- I do not recall
22 when I drove the perimeter of the property seeing
23 anything that would lead me to believe that there
24 was storage or the use of diesel fuel in the area.
L.A. REPORTING (312) 419-9292
248
1 Many times there are above ground storage tanks, but
2 I do not recall seeing those.
3 Q. When you said you drove the permitter
4 of the property, you're talking about the SVA
5 property?
6 A. No. The area. I mean, as I
7 mentioned --
8 Q. Well, how far did you drive?
9 A. Probably up the next road down, up the
10 street.
11 Q. Which would be what?
12 A. South.
13 Q. Which road?
14 A. I don't recall.
15 Q. How far was that from where the Skokie
16 Valley site was located?
17 A. I don't recall.
18 Q. Are you aware of a car dealership
19 being in that area, the Skokie Valley area?
20 A. I do not recall that.
21 Q. Did you look to see if there were any
22 other potential sources of this oily substance other
23 than Mitch's Green Thumb Nursery and Skokie Valley?
24 A. At the time of that inspection, from
L.A. REPORTING (312) 419-9292
249
1 what I recall, those were the only two that stood
2 out in my -- from my recollection.
3 Q. Okay. Do you see on Exhibit 25,
4 page 3, under Section D -- I think you were referred
5 to that as well by Mr. Murphy. Do you see where it
6 says: EPA must continue the investigation of the
7 source of the release.
8 A 2000-gallon storage tank leak is
9 probably not a complete explanation for the
10 continued release. Do you see that there?
11 A. Yes, sir.
12 Q. Now, does that indicate to you, sir,
13 that there were more than one source of this
14 potential contaminant?
15 A. Could you repeat it, please?
16 Q. Sure.
17 Does that indicate to you in your
18 opinion that there would be more than one source of
19 this contamination?
20 A. They are saying that there may be more
21 than one source on the property.
22 Q. Okay. Did you or --
23 A. That there may be one more source on
24 the property.
L.A. REPORTING (312) 419-9292
250
1 Q. Did you or the Illinois EPA as far as
2 you're aware, based on the reports you have in your
3 file, ever go out to examine the 2000-gallon storage
4 tank?
5 A. I don't recall doing that, but I
6 believe the report stated that it was referred to
7 the leaking underground storage tank program who
8 typically will follow up on leaking underground
9 storage tanks.
10 Q. Just so I could understand your
11 testimony, is it your opinion that it was this
12 leaking underground storage tank that was the source
13 of the contamination in the Avon drainage ditch
14 based on your entire investigation?
15 A. I don't know if I can answer that
16 other than it seemed to stop once activity was
17 performed on the property by their consultants.
18 Q. Okay. So you don't know whether or
19 not what they did on the property at Skokie Valley
20 stopped the leak or not?
21 A. Other than it stopped showing up in
22 the creek after the fact.
23 Q. But you don't know? Do you know the
24 time frame? When did it stop showing up in the
L.A. REPORTING (312) 419-9292
251
1 creek?
2 A. I don't recall. I don't know.
3 Q. You don't know?
4 A. No.
5 Q. Okay. And when did they start
6 remediating things actually on the site at Skokie
7 Valley in your opinion?
8 A. Sometime in late April.
9 Q. Late April?
10 A. Yes.
11 Q. What did they do?
12 A. I believe they constructed some --
13 based on the Huff and Huff report, they created some
14 recovery sumps on the property, used a trench that
15 was excavated to try and find the source of the
16 release on the property, and then controlled the
17 material that was on -- or tried to control the
18 material on the property by using those two points
19 as collection sumps.
20 Q. Okay. Do you have that report with
21 you?
22 A. Yes -- not with me here.
23 Q. You don't have that report with you?
24 A. No.
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1 Q. My question then to you, sir, is your
2 only basis that Skokie Valley then was a source --
3 or actually one of the bases really that Skokie
4 Valley was the source was that there was some action
5 being taken on the property itself and the discharge
6 ended but at some time that you don't know?
7 A. Yes.
8 Q. So you don't know whether or not the
9 work that was being done on the Skokie Valley
10 property was contemporaneous to the actual stopping
11 of the oil source, is that correct, because you
12 don't know when the oil source stopped; is that
13 correct?
14 A. One more time.
15 Q. Sure.
16 You had testified that you don't
17 know when the oil source stopped, so you don't know
18 whether or not the action that was taken on the
19 premises itself was contemporaneous to the oil
20 stopping?
21 MR. COHEN: I'm going to object to the
22 use of the word oil source. If he's
23 referring to oil flow from the drain tile,
24 that's one thing that we can talk about in
L.A. REPORTING (312) 419-9292
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1 the Avon drainage ditch. In terms of oil
2 source, it's a totally ambiguous term that
3 we're not talking about yet in this case.
4 HEARING OFFICER SUDMAN: Would you
5 like to clarify that term?
6 BY MR. JAWGIEL:
7 Q. Well, sir, you don't know whether or
8 not the actions that were being taken on the SVA
9 site actually in fact stopped the contamination of
10 the Avon drainage ditch; is that correct?
11 A. Well, the procedures that were being
12 done out there are typical to be used on a piece of
13 property that's had a release to control the source
14 and protect the downstream receptor.
15 MR. JAWGIEL: I'm going to object.
16 It's nonresponsive to the question and I ask
17 that it be struck. I asked him very
18 specifically you do not know whether or not
19 in fact the actions taken on the site
20 actually stopped the leak.
21 HEARING OFFICER SUDMAN: Well, I'm not
22 going to strike the answer but I would like
23 you to elaborate as to whether that's a yes,
24 no or you don't know.
L.A. REPORTING (312) 419-9292
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1 THE WITNESS: I would say I don't know
2 whether they were entirely responsible for
3 stopping the release to Avon Fremont ditch.
4 HEARING OFFICER SUDMAN: Thank you.
5 THE WITNESS: But it did stop.
6 BY MR. JAWGIEL:
7 Q. Okay. When you say you don't know
8 that they were entirely responsible, then there's
9 potentially other sources; is that correct?
10 A. Yes.
11 Q. Sir, what do you base your opinion on
12 that the actions taken by Skokie Valley on its site
13 in part caused the contamination to the Avon
14 drainage ditch to stop?
15 A. Experience in dealing with leaking
16 underground storage tanks on an emergency basis.
17 Q. Okay. So in your opinion, the source
18 of the oil would have been the leaking underground
19 storage tank found on Skokie Valley property; is
20 that correct?
21 A. No. I believe I said that that's how
22 I've learned how to deal with problems that are
23 moving off-site through working as an example with
24 leaking underground storage tanks.
L.A. REPORTING (312) 419-9292
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1 Q. Did you do any follow-up investigation
2 of either this drain tile or the underground storage
3 tank?
4 A. Not that I recall.
5 Q. Do you know if the Illinois EPA did
6 any follow-up with respect to the underground tank
7 or this drain tile you were referring to?
8 MR. MURPHY: Objection, Madam Hearing
9 Officer, cumulative. We already got
10 testimony that the site was inspected in
11 December of '97 by a different inspector.
12 MR. JAWGIEL: I'm just asking if he
13 was aware of it.
14 HEARING OFFICER SUDMAN: You can
15 answer.
16 THE WITNESS: Not that I'm aware.
17 BY MR. JAWGIEL:
18 Q. Did you request that anyone follow up
19 with respect to the underground storage tank and the
20 drain tile from the Illinois EPA?
21 A. I don't recall about the underground
22 storage tank as far as follow-up.
23 Q. Were you deferring to the USEPA as far
24 as remediating this site?
L.A. REPORTING (312) 419-9292
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1 A. Many times we defer to the USEPA to
2 take the lead on finding out on a site who is the
3 responsible party and then --
4 MR. JAWGIEL: Your Honor, I'm going to
5 ask that the answer be stricken from the
6 record. I'm about this specific incident in
7 Skokie Valley, did they allow USEPA to take
8 over management of the remediation of this
9 site.
10 HEARING OFFICER SUDMAN: Yes.
11 Please --
12 MR. JAWGIEL: I'm not talking about
13 his policies and procedures and what they do
14 in the normal course. I want to know with
15 this particular situation, was it USEPA that
16 was taking over the remediation of the Avon
17 drainage ditch.
18 MR. COHEN: What time frame are you
19 talking about? Object to the form of the
20 question. The witness is doing his best to
21 answer his ambiguous questions but without a
22 time frame, he can't do it.
23 HEARING OFFICER SUDMAN: Would a time
24 frame help you answer the question?
L.A. REPORTING (312) 419-9292
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1 THE WITNESS: We could try.
2
3 BY MR. JAWGIEL:
4 Q. Subsequent to your investigation --
5 which I believe was only one day, wasn't it?
6 A. That I recall, yes.
7 Q. Okay, so you were out at this. You
8 were not familiar with this site other than the day
9 you went out there; is that right?
10 A. I believe I was out there previous,
11 but there's nothing in the record that would prove
12 that I was out there.
13 Q. Well, when was that?
14 A. I don't know. I can't recall.
15 Q. Okay. Why were you out there?
16 A. For responding to an oil spill.
17 Q. Where?
18 A. Avon Fremont ditch.
19 Q. Was it north of this spill or south of
20 the spill?
21 MR. MURPHY: Objection.
22 BY MR. JAWGIEL:
23 Q. When you were first on the site, did
24 you believe -- responding to an oil spill, was it
L.A. REPORTING (312) 419-9292
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1 north of this spill or south of the spill?
2 A. If I could explain, in my memory, I
3 think I was out there more than once, but in fact I
4 may have only been out there on the 19th when it was
5 noted in Betty Lavis' report.
6 Q. Okay. So as we sit here today, you
7 have no recollection specifically of being out there
8 but it may or may not have happened?
9 A. That's correct.
10 Q. Now, other than that one day that you
11 were out there doing your investigation on April
12 19th of 1995, after that period of time, did you
13 have the USEPA -- or did the USEPA take over the
14 remediation of this spill?
15 A. I believe -- well, in the file it
16 indicates that there is going to be a joint
17 follow-up by both the USEPA, and I believe the Huff
18 and Huff report states that they would contact the
19 leaking underground storage tank program.
20 Q. Well, I'm not asking what was in the
21 memo. I'm asking you what practically happened.
22 From a practical standpoint you have not been able
23 to tell us anything that was done until 1997, I
24 believe, as far as going out to the site by the
L.A. REPORTING (312) 419-9292
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1 Illinois EPA.
2 My question is very simple.
3 Between your visit of April 19, 1995 and the visit
4 back in December of 1997, did the Illinois EPA do
5 anything to manage the remediation of the spill in
6 the Avon drainage ditch?
7 A. Not to my direct knowledge.
8 Q. And in your experience, sir, given
9 that gap of period of time, has it been your
10 experience then that the Illinois EPA was deferring
11 to the USEPA with respect to remediation of this
12 site?
13 A. There are other programs within the
14 agency that might be involved in a situation like
15 this.
16 Q. Are you aware of any other programs in
17 your agency that were involved in this situation?
18 A. Yes.
19 Q. Which?
20 A. The leaking underground storage tank
21 program.
22 Q. Okay. Have you reviewed any reports
23 from the leaking underground storage program?
24 A. No, I haven't.
L.A. REPORTING (312) 419-9292
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1 Q. Do you know whether or not after the
2 storage tank was taken out that there was any
3 testing done of the soil around the storage tank to
4 determine the content?
5 A. No, I do not.
6 Q. Do you know whether or not -- what was
7 the extent of the oil present in this leaking oil
8 storage tank or whether or not it was determined
9 whether or not it was the source of the actual leak
10 after the tank was taken out?
11 MR. COHEN: Object to the form of the
12 question.
13 HEARING OFFICER SUDMAN: I don't
14 recall.
15 MR. COHEN: Excuse me.
16 THE WITNESS: I'm sorry.
17 HEARING OFFICER SUDMAN: When there's
18 an objection pending, Mr. Klopke, you can
19 just hang on for a second.
20 THE WITNESS: I'm sorry.
21 HEARING OFFICER SUDMAN: What exactly
22 do you object to?
23 MR. COHEN: At least compound. I
24 couldn't count all the different ones.
L.A. REPORTING (312) 419-9292
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1 MR. JAWGIEL: Well, if he can't count
2 them, then he can't bring them.
3 (Laughter.)
4 I'll rephrase the question.
5 HEARING OFFICER SUDMAN: Okay.
6 BY MR. JAWGIEL:
7 Q. Are you aware that after the -- of any
8 conclusion whether or not the leaking storage tank
9 was the actual source of contamination in the Avon
10 drainage ditch after the tank was taken out and the
11 area around the tank was analyzed?
12 A. I do not have any direct knowledge of
13 that.
14 Q. So your knowledge is based upon --
15 what was the date of the report from Huff and Huff?
16 A. May 1.
17 Q. Of what year?
18 A. 1995.
19 Q. Okay. And the report we have here in
20 Exhibit 25 was May 3, 1995. So your extent of what
21 was going on in this site ended basically in May of
22 1995; is that correct?
23 A. To the best of my knowledge, yes.
24 Q. Okay. So you don't know what may or
L.A. REPORTING (312) 419-9292
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1 may not have happened after that time as far as what
2 tests were taken, what conclusions were made, what
3 was the determination as far as what was present on
4 the SVA site; is that correct?
5 A. That's correct.
6 Q. Are you aware of a landfill that was
7 in this area?
8 A. No, I'm not aware.
9 Q. So you don't know one way or the
10 other; is that correct?
11 A. I don't recall visiting a landfill
12 back then.
13 Q. Whether you visited or not, you don't
14 know if there was one present?
15 A. That's correct.
16 MR. MURPHY: Madam Hearing Officer,
17 I'm going to ask -- I'm going to show an
18 objection that if counsel does not perfect
19 his impeachment on this issue, he cannot
20 simply interject facts that may or might have
21 existed.
22 If he's going to be talking about
23 this landfill and it's going to be relevant,
24 he's got to later on show that it existed,
L.A. REPORTING (312) 419-9292
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1 otherwise, I'm going to move to strike this
2 line of questioning.
3 MR. JAWGIEL: Well, isn't that sort of
4 putting the cart before the horse, your
5 Honor? If he's going to move to strike it
6 but I tie it in later into my case, it's
7 going to be very difficult.
8 So yes, I will tie it in my case.
9 I will ask people who do have knowledge of
10 what is actually in this area but at this
11 point in time, it's cross-examination. I'm
12 given a liberal birth.
13 HEARING OFFICER SUDMAN: Okay. Your
14 objection is noted. I'll allow you to ask it
15 for now.
16 BY MR. JAWGIEL:
17 Q. Has it been your experience, sir, that
18 farms have heating oil on their premises?
19 A. Yes.
20 Q. Has it been your experience that farms
21 have fertilizer on their premises?
22 A. Yes.
23 Q. Has it been your experience that farms
24 generally have diesel fuel on their premises?
L.A. REPORTING (312) 419-9292
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1 A. Yes.
2 Q. Did you check the history of the use
3 of the SVA site?
4 A. I don't recall doing that.
5 Q. Are you aware of any prior violations
6 by SVA of any environment laws?
7 A. Not directly.
8 Q. Are you aware of any economic gain SVA
9 in your opinion would have had by having oil
10 discharge in the manner in which you indicated
11 either through a leaky underground storage tank or
12 this drain tile?
13 MR. MURPHY: Madam Hearing Officer,
14 I've got an objection. This is beyond the
15 scope of direct, beyond the scope of his
16 expertise, and this is not the witness for
17 this.
18 MR. JAWGIEL: If he talks about
19 responsible parties I want to flesh out what
20 responsible parties are. A responsible party
21 would be a party that undertook something and
22 part of this claim is that they have some
23 sort of economic gain by doing so.
24 HEARING OFFICER SUDMAN: Would you
L.A. REPORTING (312) 419-9292
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1 repeat the question?
2 MR. JAWGIEL: Sure.
3 BY MR. JAWGIEL:
4 Q. Are you aware of any economic gain
5 Skokie Valley Asphalt would have gained or would
6 have had by allowing or having fuel -- strike the
7 question.
8 Are you aware of any economic gain
9 Skokie Valley Asphalt would have had by having a
10 leaky underground storage tank or a drain tile with
11 oil in it?
12 HEARING OFFICER SUDMAN: To address
13 your objection, I'm going to -- I agree this
14 is probably not within his scope of
15 expertise, but he is a professional. I'm
16 going to allow him to answer it and the Board
17 can weigh -- I think this goes to weight
18 rather than admissibility.
19 So please answer the question.
20 THE WITNESS: As far as it leaking out
21 of the tank, if there's a cost associated
22 with repairing that tank, there might be some
23 benefit to allowing it to drain, but that
24 would be the only economic benefit I could
L.A. REPORTING (312) 419-9292
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1 see.
2
3 BY MR. JAWGIEL:
4 Q. Well, with respect to allowing the
5 tank to drain, isn't it true that if the tank is
6 leaking, you've got to refill it faster in your
7 experience?
8 A. It depends on how fast the release is
9 and what the cost is in buying the product versus
10 replacing the tank to hold it.
11 Q. Do you have any information that
12 Skokie Valley at the time of your investigation on
13 April 19, 1995 actually knew that its tank was
14 leaking?
15 A. No.
16 Q. Are you aware of any report that makes
17 the conclusion that above ground storage tanks were
18 a source of the actual contamination into the Avon
19 drainage ditch?
20 A. No.
21 Q. When you went on Mitch's Green Thumb
22 Landscaping facility, was this a facility that had
23 trucks and equipment where they would use gasoline,
24 oil, diesel when you were there that you could see?
L.A. REPORTING (312) 419-9292
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1 A. I believe I recall seeing a typical
2 landscaping operation which would have vehicles
3 there.
4 Q. Did you inquire or investigate whether
5 or not they had underground storage tanks with any
6 sort of the oils?
7 A. That, I don't recall.
8 Q. Are you aware of any of the substances
9 that you saw in the Avon drainage ditch at the time
10 of your investigation of April 19, 1995 actually
11 making their way into the
12 Third Lake area?
13 A. Other than the drainage ditch, I did
14 not inspect Third Lake at that time that I recall.
15 MR. JAWGIEL: Okay. That's all I
16 have. Thank you, sir.
17 HEARING OFFICER SUDMAN: Mr. Murphy,
18 any redirect?
19 MR. MURPHY: Just a few.
20 R E D I R E C T - E X A M I N A T I O N
21 BY MR. MURPHY:
22 Q. You testified that Skokie Valley
23 Asphalt Company was an asphalt company, correct?
24 A. Correct.
L.A. REPORTING (312) 419-9292
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1 Q. To your knowledge, did they use trucks
2 as part of their operations?
3 MR. JAWGIEL: Your Honor, that goes
4 beyond the scope of my cross-examination.
5 MR. MURPHY: It does not. I'm trying
6 to tie in Mitch's Green Thumb with the trucks
7 that are on that site.
8 MR. JAWGIEL: I did not go into the
9 actual operation of Skokie Valley Asphalt at
10 all in my cross-examination. I did not ask
11 him what Skokie Valley did, what sort of
12 equipment they used, anything along those
13 lines.
14 HEARING OFFICER SUDMAN: I know that,
15 but you did ask him about the presence of
16 trucks nearby.
17 MR. JAWGIEL: The presence of trucks
18 on a different area has nothing to do with
19 this question. He's asking the use of those
20 types of vehicles in Skokie Valley and I
21 didn't go into that area. He also went into
22 the area of what was present in other
23 adjoining properties, so I was just following
24 up on that line of questioning.
L.A. REPORTING (312) 419-9292
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1 MR. MURPHY: I'm just trying to
2 distinguish contamination coming from
3 different sites than from this site. And if
4 the substance is diesel fuel, trucks being
5 operated on Skokie Valley are just as
6 relevant as trucks operating in Mitch's
7 Green Thumb.
8 HEARING OFFICER SUDMAN: I agree. He
9 may answer the question.
10 THE WITNESS: Could you repeat it?
11 MR. MURPHY: Sure.
12 BY MR. MURPHY:
13 Q. Did Skokie Valley Asphalt Company use
14 commercial, industrial grade trucks as part of their
15 operation --
16 MR. JAWGIEL: I'm going to object
17 to -- without foundation and a time frame.
18 BY MR. MURPHY:
19 Q. -- to your knowledge?
20 A. Yes.
21 Q. Mr. Klopke, is it your experience that
22 people or companies that are not truly responsible
23 for the release, number one, say that they found a
24 leaking underground storage tank on their property
L.A. REPORTING (312) 419-9292
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1 and then take responsibility to address the
2 environmental problems caused by that release?
3 MR. JAWGIEL: Your Honor, objection.
4 That goes beyond the scope of my direct
5 examination. There has to be a foundation
6 laid.
7 MR. MURPHY: He talked on and on about
8 what significance of what happened or what
9 was documented in tab 25, the USEPA report,
10 and this runs in the same direction. This is
11 taken right from that report.
12 HEARING OFFICER SUDMAN: I agree. The
13 witness may answer.
14 THE WITNESS: Repeat the question,
15 please.
16 MR. MURPHY: Sure. I'll do it slowly.
17 MR. JAWGIEL: If you could just note
18 my objection for the record.
19 HEARING OFFICER SUDMAN: Your
20 objection is noted, sir. Thank you.
21 BY MR. MURPHY:
22 Q. Is it your experience that people or
23 companies that are not truly responsible for the
24 release say to the regulatory agencies that they
L.A. REPORTING (312) 419-9292
271
1 found a leaking underground storage tank on the site
2 and then take responsibility for whatever
3 environmental problems are caused by that release?
4 A. No.
5 MR. MURPHY: Nothing further.
6 R E C R O S S - E X A M I N A T I O N
7 BY MR. JAWGIEL:
8 Q. Sir, based on your investigation, are
9 you aware of any environmental impact from the
10 discharge into the Avon drainage ditch?
11 MR. MURPHY: Madam Hearing Officer, I
12 have an objection as to relevance. There
13 is -- environmental impact is not a part of
14 this case. It is just simply not a part of
15 this case.
16 Now they can try to make it that
17 way and they have tried in the past, but all
18 that matters is that there was a discharge
19 into the waters of the State of Illinois that
20 caused, threatened or allowed water
21 pollution, not whether there was an impact.
22 MR. JAWGIEL: Your Honor, it goes to
23 42H-A. It goes to the gravity and duration
24 of the impact -- of the offense.
L.A. REPORTING (312) 419-9292
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1 HEARING OFFICER SUDMAN: And which
2 line of questioning for his redirect does it
3 go to?
4 MR. JAWGIEL: He said take
5 responsibility for damaging the environment
6 and in his question -- in the last question
7 that he asked he said, has it been your
8 experience that people who have a -- don't
9 have a leaky storage tank and don't take
10 responsibility for cleaning up the
11 environment.
12 HEARING OFFICER SUDMAN: And what was
13 your question again?
14 MR. JAWGIEL: My question is was there
15 any environmental impact from the spill into
16 the Avon drainage ditch.
17 MR. MURPHY: Can the record also show
18 that I do object?
19 HEARING OFFICER SUDMAN: Yes. The
20 record will show that you object.
21 You may give your professional
22 opinion on that if you know.
23 THE WITNESS: Well, the sheen on the
24 body of water in itself is a violation of the
L.A. REPORTING (312) 419-9292
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1 Act -- I think, it's 12A. There's also the
2 odor problem which has -- you know, which is
3 a possibility of another other violation.
4 Material can impact, you know,
5 banks and soils downstream and those are the
6 only impacts I can think of.
7 BY MR. JAWGIEL:
8 Q. But my question is, was there actually
9 an environmental impact from this spill, not what it
10 could or couldn't have done or possibly have done or
11 anything along those lines? My question is very
12 specific. Was there actually an environmental
13 impact with respect to this spill?
14 MR. MURPHY: Objection, vague and
15 outside the scope.
16 MR. JAWGIEL: I don't think it's vague
17 at all. I'm trying to get a clarification
18 and an answer to my question.
19 HEARING OFFICER SUDMAN: Well, I think
20 he just answered. I mean, he said there was
21 sheen and odor. I don't know what more
22 you're fishing for. I think he's answered
23 it.
24 MR. JAWGIEL: I'm really not fishing
L.A. REPORTING (312) 419-9292
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1 for anything. What I'm really asking him to
2 do is answer my question. He said, well,
3 there could have been. I want to know in his
4 investigation did he come to any conclusion
5 based on his position that there was an
6 environmental impact from this particular
7 contamination; that's all I'm asking. It's a
8 very simple question.
9 HEARING OFFICER SUDMAN: Okay. Would
10 you please repeat your answer? I thought you
11 had answered it.
12 THE WITNESS: I would say yes, the
13 impact is the sheen and the odor.
14 BY MR. JAWGIEL:
15 Q. Okay. Nothing else?
16 A. Not that I'm aware of.
17 MR. JAWGIEL: Okay. That's all.
18 Thank you.
19 HEARING OFFICER SUDMAN: Anything
20 further for you, Mr. Murphy?
21 MR. MURPHY: No.
22 HEARING OFFICER SUDMAN: Are we done
23 with this witness?
24 MR. COHEN: Yes.
L.A. REPORTING (312) 419-9292
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1 HEARING OFFICER SUDMAN: Okay. Thank
2 you, Mr. Klopke, you may step down.
3 (Witness excused.)
4 MR. COHEN: Can we go off the record?
5 HEARING OFFICER SUDMAN: Yes. Let's
6 go off the record.
7 THE REPORTER: Okay.
8 (Whereupon, a discussion
9 was had off the record.)
10 HEARING OFFICER SUDMAN: Okay. We'll
11 go back on the record now and the People may
12 call their next witness.
13 MR. COHEN: Your Honor, at this time,
14 the People would call Richard Frederick.
15 HEARING OFFICER SUDMAN: Would the
16 court reporter please swear in the witness?
17 THE REPORTER: Sure.
18 (Witness sworn.)
19 WHEREUPON:
20 RICHARD JOHN FREDERICK
21 called as a witness herein, having been first duly
22 sworn, deposeth and saith as follows:
23 D I R E C T E X A M I N A T I O N
24 BY MR. COHEN:
L.A. REPORTING (312) 419-9292
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1 Q. Sir, would you please state you full
2 name and spell your last name?
3 A. Richard John Frederick,
4 F-R-E-D-E-R-I-C-K.
5 Q. Mr. Frederick, what's your position
6 with Skokie Valley Asphalt Company, Incorporated?
7 A. Vice president in charge of
8 construction.
9 Q. Were you part owner of the business?
10 A. Yes.
11 Q. What percent of the business did you
12 own?
13 A. Fifty percent.
14 Q. Who owned the other 50 percent?
15 A. My brother Larry.
16 Q. What was his position or title?
17 A. He was the president.
18 Q. When Skokie Valley Asphalt was in
19 business, did you and your brother have exclusive
20 control over the business?
21 MR. JAWGIEL: Your Honor, I'm going to
22 object, legal conclusion. That's for a legal
23 conclusion, exclusive control. First of all,
24 form of the question.
L.A. REPORTING (312) 419-9292
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1 How can both of them have
2 exclusive control? Exclusive in and of
3 itself means individual. But along with
4 that, it asks for a legal conclusion.
5 HEARING OFFICER SUDMAN: Would you
6 like to rephrase the question?
7 BY MR. COHEN:
8 Q. Were you and your brother in charge of
9 the whole operation?
10 MR. JAWGIEL: Again, I'm going to
11 object.
12 HEARING OFFICER SUDMAN: I'm going to
13 allow it. I think it's fine.
14 THE WITNESS: Along with other foremen
15 and superintendents.
16 BY MR. COHEN:
17 Q. What type of business was Skokie
18 Valley Asphalt?
19 A. An asphalt paving contractor.
20 Q. Where was your business located?
21 A. Grayslake was the main office and we
22 had a plant out in McHenry, Illinois.
23 Q. What was the address of the Grayslake
24 location?
L.A. REPORTING (312) 419-9292
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1 A. 768 South Lake Street.
2 Q. And that's in Lake County, Illinois,
3 correct?
4 A. Yes.
5 Q. What did you do at the Grayslake
6 location?
7 A. We had our office, our estimating --
8 you know, the office and all the people that did the
9 billing and a maintenance garage to work on various
10 equipment and trucks and we kept some asphalt
11 liquid, asphalt primer coats and a couple of tanks
12 there.
13 Q. Is that also where you had dispatched
14 the trucks from?
15 A. Yes.
16 Q. Did you also storage some trucks at
17 that facility?
18 A. Yeah, trucks and equipment.
19 Q. How long was Skokie Valley Asphalt at
20 the Grayslake location?
21 A. I think since 1978.
22 Q. And was there a business at that same
23 location before Skokie Valley Asphalt?
24 A. Yes, sir.
L.A. REPORTING (312) 419-9292
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1 Q. What business was that?
2 A. It was another asphalt company.
3 Q. Is that Libertyville Asphalt?
4 A. Yes.
5 Q. Who owned that business?
6 A. My parents.
7 Q. And did you work for them while it was
8 Libertyville Asphalt?
9 A. For a while, yes.
10 Q. Did you ever make asphalt at the
11 location in Grayslake?
12 A. Yes. We had an asphalt plant there.
13 Q. Do you recall when you stopped making
14 asphalt at the Grayslake location?
15 A. 1981.
16 Q. What were your responsibilities as
17 vice president in running Skokie Valley Asphalt?
18 A. I helped with estimating and getting
19 the work, you know, completed, dealing with various
20 superintendents and foremen to get jobs done.
21 Q. Now, when you're talking about these
22 jobs, these are jobs, off-site road construction
23 jobs?
24 A. Right, parking lots, road
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1 construction.
2 Q. Your primary function was construction
3 management, is that a good way to say it?
4 A. Yes.
5 Q. And your responsibilities included
6 personnel, equipment and materials, scheduling and
7 budgeting for that type of work, correct?
8 A. Right.
9 Q. You also were involved in the hiring
10 and control of all the employees and you reviewed
11 and approved the timecards, union contracts, and had
12 personnel relation issues, correct?
13 A. Right, but not only employees. In
14 fact, me and my brother share that -- we shared that
15 duty.
16 Q. You also had the responsibility for
17 all the equipment matters, purchasing and
18 maintaining the equipment, daily review of equipment
19 matters with outside maintenance shops?
20 A. Right.
21 Q. Your duties also included scheduling
22 of all jobs, employees, and subcontractors?
23 A. Some. Some of that was along with
24 other estimators and my brother. I mean, it was all
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1 shared but I did probably the majority of that.
2 Q. Okay. And I believe you also had
3 responsibility for traffic control and safety
4 matters out on job sites?
5 A. Right.
6 Q. And you also had responsibility for
7 reviewing and approving contract items, bills, and
8 invoices?
9 A. Some, yes.
10 Q. What were your brother's
11 responsibilities as president of Skokie Valley
12 Asphalt?
13 A. He did more of the office things,
14 estimating, you know, whatever, insurance, banking
15 matters, things like that.
16 Q. Most of his stuff was related to
17 financial matters?
18 A. Yes, and estimating.
19 Q. Maybe you should explain on the record
20 what you mean by estimating?
21 A. Well, when you bid a job, I mean, he
22 would have like estimators working for him and he
23 would work with -- well, not in any private work, in
24 sales. They put a bid together, you know, the
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1 estimating, what it's going to cost and he was more
2 involved in that.
3 Q. Did your brother also do work as a
4 liaison with the banks and suppliers and purchasing
5 materials, making payments, managing payroll, and
6 reviewing accounts receivable and accounts payable?
7 A. Right.
8 Q. Did his duties also involve on-site
9 meetings, reviewing on-site work, daily consultation
10 with foremen and engineers, liaison with state and
11 county, federal officials and private owners for
12 whom work was performed?
13 A. Right.
14 Q. Now, I believe you were in the hearing
15 room when you heard Mike Garretson's testimony about
16 the NPDES permit that Skokie Valley Asphalt had?
17 A. Yes.
18 Q. And you're familiar that Skokie Valley
19 Asphalt did have an NPDES permit?
20 A. Yes, I am.
21 Q. And who signed the DMRs or the
22 discharge monitoring reports that were submitted to
23 the Illinois EPA on behalf of Skokie Valley Asphalt
24 Company?
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1 A. I believe I signed them. If I wasn't
2 there, I'm sure my brother signed them but I
3 probably signed them most of the time.
4 Q. Can you describe for the Board the
5 procedure Skokie Valley Asphalt Company used to put
6 the data together for the discharge monitoring
7 reports and if I use DMRs, you'll understand that
8 term?
9 A. Yeah.
10 Basically when we got the permit,
11 I remember we set up with like a couple of our
12 dispatchers out in the front, one being more
13 responsible for it, and he would have somebody in
14 our yard, a laborer or somebody, go down and get the
15 water sample from the discharge pipe and deliver it
16 over to the Northshore Sanitary District at that
17 time.
18 They did our testing of the water
19 and they would mail -- I believe mail us back a
20 report. We would give it to the dispatcher that was
21 in charge of it -- that would get funneled back to
22 him -- and he would fill out the report and have me
23 sign it and mail it down to the EPA.
24 Q. Could you please tell the Board the
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1 name of that employee who usually took care of
2 filling out the DMR?
3 A. Bob Christiansen.
4 Q. Now, and how often do you recall that
5 Bob Christiansen was typically bringing you a DMR to
6 sign?
7 A. Well, he was kind of -- I mean, we
8 left him in charge, but I guess he was supposed to
9 do it every month.
10 Q. What would you do when Bob
11 Christiansen would bring you a DMR report to sign?
12 A. I would look at it and look at
13 the -- there were three things, I believe, three or
14 four that, as you've talked about, the suspended
15 solids, oil, grease, and maybe pHs -- does that
16 sound right? And I had a --
17 Q. Would it help if you looked at one of
18 the forms?
19 A. I can. I mean, I don't know if I need
20 to or not because I would answer one other thing,
21 total suspended solids, it was when we would get a
22 big storm. And on our property, we have a farm
23 field that's 40 acres that flows into our retention
24 basin, plus our ten acres and I asked people -- I
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1 think I asked Jim Huff, and I might have asked
2 somebody at the Illinois EPA, is there a problem
3 with total suspended solids? And they said, not
4 when you have a big storm.
5 I mean, if you can see storm water
6 coming off of a 40-acre field that's just plowed for
7 the winter, that brings dirt and everything into our
8 ponds and are filthy and so we just always let them
9 go.
10 I don't believe we ever were over
11 on oil, grease, and pH. But as far as -- I know you
12 had asked that before and that was talked about up
13 here and we discussed that. I'd sign them and mail
14 them on to the EPA.
15 Q. Now, what do you mean by that you
16 would check for the three things in the DMR when
17 Bob Christiansen would bring them to --
18 A. I always would just go get them. I
19 might not have looked at them all the time. If I
20 had time, I would look at them.
21 Q. Would you just look at them on the DMR
22 reports and then sign the report or would you do
23 anything else?
24 A. That's all I had ever done. And I
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1 probably didn't look at them all the time. Bob was
2 mainly the one who was in charge of doing that. I
3 kind of just signed them -- if I was in a hurry, I
4 would just sign them. Bob was the responsible
5 person.
6 Q. Did you yourself ever do anything to
7 determine whether the information contained on the
8 DMR reports filled out by Bob Christiansen was
9 accurate?
10 A. No.
11 Q. Did you ever check the report or
12 letter that you got back from the Northshore
13 Sanitary District to see whether Bob Christiansen
14 had written that information down correctly on the
15 DMR?
16 A. Not that I can remember. No, sir.
17 Q. There's a big white binder in front of
18 you. Why don't we go to the front of that binder
19 and if you would just flip to tab one behind the tab
20 there, do you recognize that document?
21 A. I mean, I think this is a copy of
22 our -- I mean, I'm sure that I've seen this.
23 Q. Is that a copy of the NPDES permit?
24 A. I'm sure that it is, yes.
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1 Q. Directing your attention to
2 Complainant's Exhibit No. 2, do you recognize that
3 document?
4 A. It's a -- what do you call them?
5 Q. A DMR?
6 A. Yeah.
7 Q. Is that the DMR that Skokie Valley
8 Asphalt submitted?
9 A. I mean, they look like it. I would
10 sign these usually.
11 Q. Is that your signature at the bottom?
12 A. Yes.
13 Q. And is that your name at the bottom of
14 the page?
15 A. Yes.
16 Q. Maybe we can just flip through these
17 carefully. If something doesn't look right, you can
18 bring it to my attention.
19 Complainant's Exhibit No. 3, is
20 that also a DMR submitted by Skokie Valley Asphalt
21 Company?
22 A. Yes.
23 Q. And is that your signature at the
24 bottom of that page?
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1 A. Yes, it is.
2 Q. Complainant's Exhibit No. 4 is a DMR
3 submitted by Skokie Valley Asphalt Company?
4 A. Yes.
5 Q. And your name appears at the bottom of
6 that page?
7 A. Yes.
8 Q. Complainant's Exhibit No. 5, another
9 DMR with your name at the bottom of the page?
10 A. Yes.
11 Q. Complainant's Exhibit No. 6, did you
12 have anything to do with the NPDES permit renewal
13 application?
14 A. Not that -- my brother and I did talk
15 about it, so I guess I did a little bit, yes.
16 Q. Okay. Your signature is not on that
17 document, is it?
18 A. No.
19 Q. Whose signature does appear on that
20 document?
21 A. Larry's. It's my brother's.
22 Q. Directing your attention to People's
23 Exhibit No. 7, do you recognize that document?
24 A. I'm sure that I saw it, but I mean,
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1 it's on our letterhead to the IEPA.
2 Q. And does that relate to submission of
3 the additional information related to your NPDES
4 permit renewal application? I think you might see
5 that at the top of page 1.
6 A. Yes, I guess so.
7 Q. Do you not recall anything about
8 needing to supply the Illinois EPA with additional
9 information about the permit renewal application?
10 A. All I know -- I mean, the only thing
11 that I remember really discussing with my brother is
12 that we were told that we were going to be able to
13 go in under a blanket permit and that's what
14 our -- that's what we felt we were going to be able
15 to do.
16 Q. But do you remember the Illinois EPA
17 asking you --
18 A. I don't remember that.
19 Q. Okay.
20 A. No, I don't.
21 Q. Okay. After you were issued the NPDES
22 permit in April, May of 1986, did you start
23 submitting DMR reports at that time?
24 A. I remember we had to get our -- I
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1 think we had to get our discharge under the railroad
2 tracks, so I don't think we started right away. I
3 think we started when we started discharging.
4 I can't tell you when that was. I
5 think we had the permit for a little while before we
6 started discharging.
7 Q. Let me direct your attention to
8 Complainant's Exhibit No. 26. Do you recognize that
9 exhibit?
10 A. Somewhat. I mean, I think it tells
11 why we -- yes, I signed this.
12 Q. Can you describe for the record what
13 that is?
14 A. It's a letter to the IEPA, I believe,
15 that we didn't do any reports because we weren't
16 discharging into the area that -- where we had the
17 permit. We were in the process of putting our
18 discharge tile under the tracks.
19 Q. And what is the date of that letter?
20 A. November 9, 1988.
21 Q. And who signed that letter on behalf
22 of Skokie Valley Asphalt?
23 A. I did.
24 Q. Now, one thing that caught my
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1 attention under there is that your title in that
2 letter is --
3 A. President.
4 Q. -- president.
5 Was that a typo?
6 A. Typographical error.
7 Q. Okay. Is that a true and correct copy
8 of the letter?
9 A. I believe that it is, sure. I think
10 this tells about when we finished our piping when
11 Metra was buying the railroad, I believe, or
12 Milwaukee Road at that time and we had a lot of
13 trouble getting a permit, auger, under the tracks.
14 Q. Let me direct your attention to
15 Complainant's Exhibit No. 27. It might be easier if
16 you open that binder all the way.
17 A. I can read it.
18 Q. Do you recognize that?
19 A. Right.
20 Q. Can you describe for the Board or the
21 record what that is?
22 A. It's a letter from Bob Christiansen
23 about why we didn't file to report some discharge
24 monitoring and it sounds like -- I mean, we did.
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1 Bob had a heart attack. There were periods in there
2 where we had new people involved and whether or
3 not -- this was a letter stating that we didn't file
4 some of these reports.
5 Q. And what is the date of that letter?
6 A. January 17, 1990.
7 Q. And does that appear to be an accurate
8 copy of that letter?
9 A. I would say, sir, yes.
10 Q. And Bob Christiansen --
11 A. Yes.
12 Q. -- was the man you described
13 earlier --
14 A. Right.
15 Q. Could you try and let me finish my
16 question?
17 A. I'm sorry.
18 Q. The court reporter can only take one
19 of us talking at the same time.
20 HEARING OFFICER SUDMAN: Yes.
21 Thank you.
22 BY MR. COHEN:
23 Q. Bob Christiansen was the man you
24 explained earlier who would normally transpose the
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1 information from the Nort shore Sanitary District --
2 A. Right.
3 Q. -- and bring the DMR for your
4 signature, correct?
5 A. Right.
6 Q. Do you recall on your site in
7 Grayslake there ever being a gasoline pump?
8 A. Oh, sure.
9 Q. Was there still one there when you
10 sold the business?
11 A. Yes.
12 Q. Was there ever a gasoline pump on the
13 site that was removed?
14 A. I mean, we had an above ground pump
15 and -- I mean, when we, you know, had to go to
16 double wall tanks and everything, we put a whole new
17 system in.
18 Q. Was there ever a time where you had a
19 gasoline pump with an underground storage tank?
20 A. It could have been, yes. I mean, that
21 could have been before our time there.
22 Q. Do you recall there being one during
23 Skokie Valley Asphalt?
24 A. Not when Skokie Valley was there --
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1 well, there could have been one but -- yes, I
2 believe there could have been.
3 Q. I think it might have been on the
4 south end?
5 A. It could be, yes.
6 Q. And do you recall when Skokie Valley
7 would have removed that pump and underground storage
8 tank?
9 A. Probably sometime in the early '80s.
10 Q. You mentioned earlier that Skokie
11 Valley Asphalt stopped producing asphalt at the
12 Grayslake location I think you said 1981 or 1982?
13 A. Right.
14 Q. What did Skokie Valley Asphalt have to
15 do to dismantle that operation?
16 A. Not much. I mean, it's like a big
17 erector set. You take the asphalt and it gets --
18 they put it down -- it comes in in pieces and it
19 goes out in pieces.
20 Q. Maybe for those of us who don't know
21 much about asphalt, can you describe what pieces
22 comprised the plant that you had to take down?
23 A. There were bins that the aggregate --
24 before it's dried there's like five or six bins --
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1 Q. I'm sorry?
2 A. They're bins. They're open bins that
3 you dump into with an end-loader.
4 Q. Bins?
5 A. Bins.
6 Q. B-I-N-S?
7 A. Right.
8 And with the conveyor underneath
9 that, the conveyor goes up into a rotary dryer that
10 dries the aggregate sand and gravel and that
11 carries -- there's an elevator that carries it up to
12 the top of the plant where there's a screen because
13 there's different sizes of the -- large stones,
14 small stones and sand and they -- that screen
15 separates those into bins that are in this plant.
16 This plant goes up and down --
17 maybe it's 80 or 90 feet tall -- and that goes into
18 bins. And underneath those bins, there's a weigh
19 hopper and you draw out a certain amount for each
20 batch of asphalt into that weigh hopper of the
21 aggregate and drops it into the pug mill. There's
22 also --
23 Q. Excuse me. What is a pug mill?
24 A. That's the mixer; it's like your egg
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1 beater.
2 And then there's the asphalt tanks
3 over here (indicating) that have a pump that go up
4 to a weigh bucket and that weigh
5 bucket -- it's on a scale also and that pumps it
6 into the weigh bucket.
7 You get so much asphalt in the
8 weigh bucket and that dumps it into the pug mill
9 with the -- that's the liquid. It's about 95
10 percent sand and gravel, five percent liquid
11 asphalt, mixes it up, drops it into the truck.
12 Q. Now, we heard from, I believe,
13 Mr. Klopke and Mr. Kallis that there are above
14 ground storage tanks for liquid asphalt that --
15 A. Right. Those are different kind of
16 tanks. The other tanks for the asphalt cement were
17 removed when we sold the plant in 1981 or -- it was
18 right around '81 or '82.
19 Q. How did you fuel the asphalt plant
20 when it was --
21 A. Gas.
22 Q. -- in place?
23 A. Natural gas.
24 Q. And what was the source of that
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1 natural gas, how did you --
2 A. We have a big line coming into the
3 yard, like an eight or ten-inch line.
4 Q. Was that the only source of fuel?
5 A. Yes.
6 Q. And how did you supply liquid asphalt
7 at the asphalt plant?
8 A. They were in tanks, above ground
9 tanks, and then there was lines that came out of
10 those tanks and went up to the weigh bucket, not
11 underground, they were above ground.
12 Q. The tanks were above ground?
13 A. Yes.
14 Q. And where did the lines go?
15 A. They went right out of the tanks and
16 up into the tower, the tower itself, and they were
17 controlled -- it was like an automatic valve that
18 would dump into the weigh bucket and shut off and --
19 you know, turn on and off.
20 Q. And when you stopped producing asphalt
21 at the site in 1982, is that also the year where you
22 tore down --
23 A. Yes.
24 Q. -- or took down this equipment?
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1 A. Yes.
2 Q. Was this equipment then moved to the
3 McHenry location?
4 A. No. We sold the plant at that time.
5 We had another plant in McHenry.
6 Q. Your also heard mention that there
7 were some underground storage tanks on your site --
8 A. Yes.
9 Q. -- through approximately 1995, 1996?
10 A. Right.
11 Q. Do you recall when Skokie Valley
12 Asphalt stopped using those underground storage
13 tanks?
14 A. In that period when we had hired
15 Mr. Huff and when we had a leak in one of them, we
16 took them all out of the ground at that time.
17 Q. Were you using those underground
18 storage tanks up until that time?
19 A. Right. I believe there was one for
20 the garage and two for -- one or two for waste oil
21 in back of the garage -- I can't remember --
22 underground.
23 Q. And what were you using waste oil for?
24 A. It would just be draining oil from the
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1 trucks and then we would have people come in and
2 take it up and out.
3 Q. When did you dissolve Skokie Valley
4 Asphalt Corporation?
5 MR. JAWGIEL: Objection to the
6 relevance, your Honor.
7 HEARING OFFICER SUDMAN: Why?
8 MR. JAWGIEL: Well, I don't know what
9 the relevance is of the corporate status.
10 HEARING OFFICER SUDMAN: Well, you
11 have actually a standing objection on that
12 through your motion, so I'm going to allow
13 him to answer it.
14 THE WITNESS: We sold the company in
15 1998 to one of our competitors.
16 BY MR. COHEN:
17 Q. And did you also dissolve the
18 corporation in 1998?
19 A. I believe -- whatever the -- there
20 were so many things going on at that time. I
21 can't -- I don't know exactly what the accountants
22 and the attorneys did to be very honest with you and
23 I don't understand it to this day.
24 So it was a hurry deal -- a
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1 hurry-up deal and so it's kind of distasteful to me
2 and I don't like to talk about it.
3 Q. Well, I'm sorry to bring it up but we
4 have to.
5 A. I know we have to talk about it.
6 Q. Does Skokie Valley Asphalt Company,
7 Incorporated still exist today?
8 A. I don't believe so. I think our
9 competitor has the name.
10 Q. Who was your competitor?
11 A. That bought the company.
12 Q. What was their name?
13 A. Curran Contracting.
14 Q. But they don't use the name Skokie
15 Valley Asphalt?
16 A. No, they don't.
17 Q. When you sold the company in 1998, how
18 much did you sell it for?
19 MR. JAWGIEL: Objection, your Honor,
20 with respect to how much and as to relevance
21 at this point in time.
22 HEARING OFFICER SUDMAN: Overruled.
23 You can answer.
24 THE WITNESS: Well, you gave a number
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1 out. I think you said $8 million if that's
2 what it was. It was somewhere in that
3 neighborhood, between the 7 and $8 million.
4 Most of it went to suppliers. They wrote
5 checks directly to our suppliers, a lot of
6 it.
7 BY MR. COHEN:
8 Q. Was there a written agreement?
9 A. Oh, yeah.
10 MR. JAWGIEL: Your Honor, if you just
11 want to note for the record we're, obviously,
12 going to have a standing objection to --
13 HEARING OFFICER SUDMAN: Yes,
14 Mr. Jawgiel, you have a standing objection to
15 the relevance of the financial information.
16 MR. JAWGIEL: And Exhibit 35 just for
17 the record.
18 HEARING OFFICER SUDMAN: Okay.
19 BY MR. COHEN:
20 Q. Mr. Frederick, I just put in front of
21 you a red-ribbed envelope, I believe, with two thick
22 binders in it. It's marked on the front
23 Complainant's Exhibit 35 and it's in two volumes, if
24 you can take a look at that --
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1 A. Okay.
2 Q. I certainly don't want you to read the
3 whole thing.
4 A. Okay.
5 Q. The copy I have is marked volume 1 of
6 2 and volume 2 of 2. Is yours as well?
7 A. Yes.
8 Q. Can you describe for the Board what
9 that is?
10 MR. JAWGIEL: Your Honor, I'm going to
11 object. Unless he views each and every
12 document in this exhibit, how is he going to
13 say what it is? I mean, it's absurd to hand
14 him what appears to be about five inches
15 thick of a document and say, well, what is
16 it.
17 HEARING OFFICER SUDMAN: I agree. I
18 mean, has he seen this before?
19 MR. COHEN: His signature is on it, so
20 I'm assuming.
21 HEARING OFFICER SUDMAN: I haven't
22 seen this before. I guess I'm not entirely
23 sure -- is this --
24 MR. JAWGIEL: If you don't know if his
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1 signature is on every --
2 HEARING OFFICER SUDMAN: Which
3 document are you looking at?
4 MR. JAWGIEL: In Exhibit 35, he's
5 trying to have him identify it in mass. If
6 he has specific documents he wants to refer
7 him to, so be it, but to hand him five inches
8 of documents and say, well, what is it, I
9 mean, I think is a bit absurd.
10 HEARING OFFICER SUDMAN: I mean, if
11 you would like, I can have him look at the
12 table of contents for each volume and give
13 his opinion on what it appears to be.
14 MR. COHEN: Your Honor, I don't think
15 it's necessary; it is one document. It's a
16 document he's familiar with his signature.
17 If you just give me a minute, I'll be able to
18 establish that.
19 HEARING OFFICER SUDMAN: Okay.
20 BY MR. COHEN:
21 Q. Mr. Frederick, have you seen this
22 document before?
23 A. Yeah.
24 Q. Volume 1 of 2, on page 30 of that
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1 document is a signature page?
2 A. Right.
3 Q. Does your signature appear on this
4 document?
5 A. Yes.
6 Q. Does this document, the asset purchase
7 agreement between your company, the shareholders,
8 and Curran Contracting for the sale --
9 A. I'm sure that it all is.
10 Q. Is the rest of the material in this
11 volume and the second volume attachments to this
12 document?
13 A. That's right.
14 Q. Directing your attention to page 4 in
15 that same volume --
16 A. It's not numbered but is that the
17 asset purchase agreement?
18 Q. You don't have all the page numbers on
19 the bottom there?
20 MR. JAWGIEL: Neither do we.
21 THE WITNESS: I've got 3 and then it
22 goes to asset purchase agreement.
23 MR. JAWGIEL: We have -- it looks like
24 a document is numbered but there's no
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1 differentiation.
2 THE WITNESS: Here's a 4, purchase
3 price and payment.
4 MR. JAWGIEL: Right. Purchase price,
5 4, is numbered. Is that the one you're
6 referring to?
7 MR. COHEN: Yes.
8 BY MR. COHEN:
9 Q. And what was the initial purchase
10 price for Skokie Valley Asphalt?
11 A. $8,229,000.
12 Q. As best you can tell in flipping
13 through this document, does this appear to be a true
14 and accurate representation of the agreement between
15 Skokie Valley Asphalt and Curran Contractors?
16 A. That's right.
17 It doesn't have the page that
18 shows where we paid --
19 Q. Excuse me. There's no question
20 pending.
21 A. Strike that part.
22 HEARING OFFICER SUDMAN: Sustained.
23 MR. COHEN: Madam Hearing Officer, may
24 I have a moment?
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1 HEARING OFFICER SUDMAN: Yes.
2 BY MR. COHEN:
3 Q. Do you recall ever receiving dust
4 complaints from the Skokie Valley Asphalt?
5 MR. JAWGIEL: Your Honor, objection to
6 relevance. It has nothing to do with this
7 complaint that's before us here and there
8 hasn't even been a foundation laid.
9 HEARING OFFICER SUDMAN: What kind of
10 complaints?
11 MR. COHEN: Dust.
12 HEARING OFFICER SUDMAN: Dust
13 complaints?
14 MR. JAWGIEL: Same objection, your
15 Honor. Dust complaints -- I don't know what
16 relevance dust complaints have with respect
17 to the cause of action. There's nothing in
18 the complaint alleging any allegations of
19 dust complaints.
20 HEARING OFFICER SUDMAN: What is this
21 going towards?
22 MR. COHEN: Well, the next question
23 will be what did you do.
24 HEARING OFFICER SUDMAN: Okay. I'll
L.A. REPORTING (312) 419-9292
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1 give you some leeway to see where this is
2 going.
3 BY MR. COHEN:
4 Q. Did you ever receive dust complaints
5 from the trucks going to the site?
6 A. There could have been some.
7 Q. And what did Skokie Valley Asphalt do
8 at times to try and control the dust?
9 A. Pave the yard.
10 Q. Before you paved the yard, did you
11 ever spray any materials on the site?
12 A. Oh, yes.
13 Q. What did you use to spay on the site?
14 A. MC-30 prime dust control asphalt. We
15 sold billions of gallons of it.
16 Q. And what was that called?
17 A. MC-30 prime asphalt, liquid asphalt,
18 not drain oil. It was a dust control oil that was
19 used all over the State of Illinois.
20 Q. Do you recall how long the time period
21 you used that to spray your lot before you paved it?
22 A. Well, parts of it you would spray it
23 and it would turn into paving eventually.
24 Q. Do you recall how long a time period
L.A. REPORTING (312) 419-9292
308
1 that was for?
2 A. Maybe about three or four years.
3 MR. COHEN: I have nothing further at
4 this time.
5 HEARING OFFICER SUDMAN: Thank you.
6 THE WITNESS: You know, aren't you
7 going to talk about the DMRs anymore?
8 HEARING OFFICER SUDMAN: Sir, your
9 attorney will represent you. He'll ask you
10 all the questions you need.
11 MR. JAWGIEL: I'll ask him some
12 questions, but we are reserving our right to
13 call him back in our chief in case as.
14 HEARING OFFICER SUDMAN: Yes.
15 MR. JAWGIEL: And I assume he would be
16 called as an adverse witness given the nature
17 of the questions?
18 HEARING OFFICER SUDMAN: Yes.
19 C R O S S - E X A M I N A T I O N
20 BY MR. JAWGIEL:
21 Q. Mr. Frederick, we had talked a little
22 bit about how much money gross the sale was of this
23 facility, Skokie Valley Asphalt. What was the net?
24 A. You know, I can't answer that. I
L.A. REPORTING (312) 419-9292
309
1 really -- I don't know. I know that we had
2 agreements with Faulken Materials, Meyer Materials,
3 Seneca Petroleum, and the Bank of Waukegan that they
4 wrote checks out at the closing to those creditors
5 and I don't remember exactly what the net was.
6 Q. And with respect to any economic value
7 or benefit that Skokie Valley may have received from
8 the contamination of the Avon drainage ditch, was
9 there any benefit to Skokie Valley in your opinion?
10 A. No.
11 Q. How much money did Skokie Valley spend
12 in efforts to directly absorb oil off the drainage
13 ditch?
14 MR. COHEN: Your Honor, based on the
15 fact that counselor has reserved the right to
16 call him as a witness in his case in chief, I
17 didn't ask any questions on this topic.
18 HEARING OFFICER SUDMAN: What does
19 this relate to?
20 MR. JAWGIEL: Well, they're talking
21 about economic benefit and I think that's the
22 whole purpose of bringing out how much they
23 sold this business to --
24 HEARING OFFICER SUDMAN: All right.
L.A. REPORTING (312) 419-9292
310
1 Well, you opened the door.
2 MR. JAWGIEL: The door is wide open at
3 this point.
4 HEARING OFFICER SUDMAN: Go ahead.
5 BY MR. JAWGIEL:
6 Q. How much money did Skokie Valley spend
7 in directly attempting to absorb the oily sheen that
8 was on the Avon drainage ditch?
9 A. I would suspect that in labor and
10 probably some materials that it probably cost
11 us -- maybe with our labor, probably anywhere from
12 10 to $15,000.
13 Q. Did Skokie Valley also undertake the
14 removal of some underground storage tanks from this
15 facility?
16 A. Yes.
17 Q. And how much would you estimate the
18 cost was to Skokie Valley of removing the tanks from
19 the site?
20 A. Probably 5 to $7500 -- 5,000 to 7,500.
21 Q. Per tank?
22 A. Well, the whole thing I would think
23 without the cost that we had for Jim Huff, maybe as
24 much as $10,000. I don't think we ever had that
L.A. REPORTING (312) 419-9292
311
1 sophisticated of an accounting system.
2 Q. Now, did you get involved in laying
3 the asphalt for Skokie Valley?
4 A. Well, I directed people to do it. I
5 mean, I didn't --
6 Q. Did you actually go out there and lay
7 the asphalt back in 1995?
8 A. No.
9 Q. Did you actually go out there and lay
10 gravel in 1995?
11 A. No.
12 Q. Did you actually go out there and load
13 trucks?
14 A. No.
15 Q. Did you actually go out there and take
16 samples for the discharge for the DMR?
17 A. No, I did not.
18 Q. Did you actually go out there and test
19 the samples that were taken for the DMRs?
20 A. No, I did not.
21 Q. Did you actually fill in the DMR
22 reports?
23 A. No.
24 Q. Did you mail the DMRs?
L.A. REPORTING (312) 419-9292
312
1 A. No.
2 Q. Did you manage the underground storage
3 tanks that were on the facility?
4 A. Well, I mean, I didn't have anything
5 to do with getting them filled or emptied or
6 whatever, but I told people that, you know, what we
7 needed to do.
8 Q. Okay. I think you already testified
9 that there was an individual from Skokie Valley
10 whose job it was to collect the samples for the
11 DMRs; is that correct?
12 A. Right.
13 Q. And what was the name of that
14 individual?
15 A. Robert Christiansen.
16 Q. Okay. And when you signed the DMRs,
17 which are Exhibits 11 through 18, did you sign those
18 DMRs based on the best knowledge you had regarding
19 the accuracy of the data contained?
20 A. Yes.
21 Q. And was it your understanding, sir,
22 that certification just asked you for your knowledge
23 to certify when you signed that document?
24 A. Right. I mean, I assumed that
L.A. REPORTING (312) 419-9292
313
1 everything -- that the sample that was taken was
2 taken to Northshore Sanitary District. Bob filled
3 out the report that we got back from them and I
4 signed it.
5 Q. Okay. So just so it's clear, you
6 didn't actually take the samples or fill out the
7 form or mail the forms to the IEPA regarding the
8 DMRs?
9 A. No, I did not.
10 Q. Why did you sign the reports, the DMR
11 reports?
12 A. I don't know. It was just always that
13 I signed them. I guess we signed -- or I signed a
14 check or signed whatever. We never had anybody
15 sign, you know, a lot of things in the company. I
16 guess it was just -- I don't know. I just always
17 signed them.
18 Q. Now, at some point in time, did you
19 become aware that there was an allegation that
20 duplicative reports had been filed by Skokie Valley?
21 A. Absolutely.
22 Q. And what, if anything, did Skokie
23 Valley do to rectify the situation?
24 A. Okay. First of all, we had hearings
L.A. REPORTING (312) 419-9292
314
1 with probably three or four different people that
2 worked for the -- your job is at the AG's office; is
3 that right? -- the attorneys with the AG's office
4 because they sent us things and they said you filed
5 duplicate forms and you filed -- you know, whatever
6 they were, they were wrong or whatever and we went
7 through about three or four different -- because
8 they would get a job there in the boom times of the
9 '90s and then all of a sudden they were gone to a
10 law firm. And we finely hired --
11 MR. COHEN: Your Honor, I'm going to
12 object to the narrative.
13 THE WITNESS: Well, that's what they
14 did; it's the truth. You can strike that if
15 you want to.
16 HEARING OFFICER SUDMAN: Just answer
17 the question, please.
18 THE WITNESS: Yes, ma'am.
19 And we hired an attorney. We
20 hired --
21 MR. COHEN: Objection, no question is
22 pending.
23 HEARING OFFICER SUDMAN: Is there a
24 question pending?
L.A. REPORTING (312) 419-9292
315
1 MR. JAWGIEL: I asked him what did
2 they do when they became aware of duplicative
3 DMRs being filed?
4 THE WITNESS: Because we had -- didn't
5 the AG's office -- if I remember right, we
6 went down to the Attorney General's Office
7 like five or six times in the big orange
8 building in Chicago, so there must have been
9 some correspondence stating that we did
10 something wrong; this was in the '90s.
11 HEARING OFFICER SUDMAN: And I believe
12 his question is what did you then do?
13 THE WITNESS: What did we do? We
14 hired -- we went down and we saw these people
15 and we hired an attorney to come with us,
16 Murray Townselman, an attorney in Chicago.
17 And we had like five or six meetings with an
18 attorney by the name of Beth Williams, I
19 believe -- they can go back and find out --
20 and a gentleman from Springfield; he used to
21 come up on the train.
22 We went through all of this and we
23 found out that when Bob had his heart attack,
24 they sent two -- and we had an agreement with
L.A. REPORTING (312) 419-9292
316
1 these people and I'm telling the truth -- the
2 duplicate copies that were void sent in for
3 one month and we also -- the ones that
4 weren't turned in, we had copies of those
5 that were -- because we had the reports from
6 the Northshore Sanitary District that were
7 mailed.
8 You know, we had in our files that
9 were lost -- we say that they were lost down
10 at the EPA -- we never sent them, you know,
11 the mail through the mail. We thought we had
12 hammered out an agreement on this portion of
13 the DMRs with the USEPA. The attorney
14 left -- Beth Williams left.
15 Our attorney, Murray Townselman,
16 had a heart attack and he sent us a thing
17 that he was out of business and we left it
18 lie up until now, up until we've had maybe a
19 couple other attorneys going through this
20 thing again. And these gentlemen right here
21 are the ones who have stayed with it and here
22 we are today. So I mean, it's been going on
23 since the early '90s.
24 HEARING OFFICER SUDMAN: Thank you.
L.A. REPORTING (312) 419-9292
317
1 THE WITNESS: That's what we did
2 and --
3 BY MR. JAWGIEL:
4 Q. Hold on now.
5 A. I'm sorry.
6 Q. Now, with respect to the DMRs that
7 were allegedly duplicative, did you actually have
8 the testing done during those periods of time and
9 they just didn't make it to the report?
10 A. That's what we felt and that's -- we
11 had some -- I mean, we had a whole file. I worked
12 on this and I don't even know what happened to it
13 because it was so long ago, but we had reports
14 from -- we went back to the Northshore Sanitary
15 District, got the reports and -- because we had our
16 copies of them and showed them to the AG's office.
17 And there were some -- there were
18 a couple of duplicates where at the end of the month
19 Bob might have sent it out. And he was gone with
20 a -- he had some problems and I don't want to go
21 into those -- and Lloyd, his assistant, might have
22 sent two copies.
23 I mean, we had an agreement there
24 was clerical errors always and never any -- I mean,
L.A. REPORTING (312) 419-9292
318
1 how could we gain from trying to do this because our
2 reports never were out of kilter?
3 Q. Okay. Now, with respect to the file
4 that you had maintained and got the reports from the
5 testing facility, those documents were destroyed
6 when you sold?
7 A. You know, when we sold we had so
8 many -- there was an office and it was not the best
9 relationship with these people. They came in and
10 cleaned out our offices.
11 I mean, I had to take -- I was
12 hired to kind of run this thing and what happened to
13 those -- I can look. I mean, I don't know if we
14 have them anymore or not because I thought at one
15 point that was all pretty much taken care of.
16 Q. Let me show you what we'll mark as
17 Respondent's Exhibit No. 1 for identification. Take
18 a look at that document.
19 (Witness perusing
20 the document.)
21 A. Okay. This is some of the stuff that
22 we worked out, yes, with Mr. Townselman and that we
23 submitted to the Attorney General's Office back in
24 the mid '90s.
L.A. REPORTING (312) 419-9292
319
1 Q. Okay. And was this document the type
2 of document that Skokie Valley would keep in the
3 ordinary course of business?
4 A. Yes.
5 Q. And was this document particularly a
6 document that Skokie Valley kept in its ordinary
7 course of business?
8 A. It must have been, yes.
9 Q. And is this a true and accurate copy
10 of the document it reflects to be?
11 A. Yes.
12 MR. COHEN: Judge, I'm going to object
13 for a couple of reasons: First, I'd like it
14 described a little better for the record;
15 second, the witness has already testified
16 that all the records have been destroyed.
17 I would assume this is a copy from
18 our records. As long as that's clear on the
19 record how they got this, I have no objection
20 to him using it. But I don't think it's fair
21 to say that, yes, this is a record we keep in
22 the ordinary course of business when they
23 don't have any records.
24 MR. JAWGIEL: Well, your Honor, that
L.A. REPORTING (312) 419-9292
320
1 objection is baseless. It's not whether or
2 not you could keep it in your records
3 contemporaneous to this hearing. It's
4 whether this would have been a document you
5 kept in the ordinary course of business or
6 whether this was a document that was kept in
7 your ordinary course of business and whether
8 this is a true and accurate copy.
9 The source itself has no relevance
10 whatsoever to laying that foundation and it
11 goes to our whole defensive latches. How are
12 we supposed to defend ourselves unless we can
13 find documents we did have in our business
14 records and file alternative sources for it?
15 HEARING OFFICER SUDMAN: I'm not
16 saying it's not admitted, but I think it's
17 worth clarifying for the record what the
18 source was.
19 MR. JAWGIEL: Well, I don't know if
20 he's going to know what the source was.
21 HEARING OFFICER SUDMAN: Well, then
22 he'll say he doesn't know.
23 MR. JAWGIEL: And I don't understand
24 the purpose of clarifying the source. I
L.A. REPORTING (312) 419-9292
321
1 truly don't. I don't understand. Whether we
2 get it from the AG's office or whether we get
3 it from a different source whatsoever has no
4 relevance.
5 This is something they would have
6 kept in their ordinary course of business --
7 did keep in the ordinary course of business
8 and it's a true and accurate copy of that
9 document.
10 HEARING OFFICER SUDMAN: I think it's
11 relevant because there's been some testimony
12 about not having certain records. I just
13 think it's relevant what the source was. I'm
14 not saying that the document is not going to
15 be admissible.
16 BY MR. JAWGIEL:
17 Q. Do you actually know where a copy of
18 the document came from?
19 A. No, I don't recall where it came from
20 actually.
21 HEARING OFFICER SUDMAN: Thank you.
22 BY MR. JAWGIEL:
23 Q. What was your understanding of the
24 purpose of Exhibit No. 1?
L.A. REPORTING (312) 419-9292
322
1 A. Well, I think this was an explanation
2 from Murray to the Attorney General about some of
3 the discrepancies in the monitoring reports, an
4 explanation of them.
5 Q. Did Skokie Valley at some point in
6 time file -- strike that.
7 Did Skokie Valley at some point in
8 time mail to the Illinois EPA amended reports with
9 the corrected information from the testing facility?
10 A. I'm not sure of that. I don't know;
11 we could have.
12 Q. You had mentioned in your examination
13 by Mr. Cohen that you thought that Skokie Valley was
14 going to be covered under a blanket permit and
15 that's one of the reasons why an NPDES permit wasn't
16 renewed?
17 A. That's right.
18 Q. What was your understanding regarding
19 this blanket permit?
20 A. Well, I mean --
21 MR. COHEN: Your Honor, I'm going to
22 object because it's really irrelevant in
23 terms of this case. The violations the
24 plaintiff is facing in terms of the law and
L.A. REPORTING (312) 419-9292
323
1 the permittee's understanding really has no
2 relevance.
3 HEARING OFFICER SUDMAN: Well, I think
4 it goes to his affirmative defense that the
5 Board said they were allowed the raise.
6 I'll let you go ahead.
7 MR. JAWGIEL: I think it goes directly
8 to it actually.
9 HEARING OFFICER SUDMAN: Yes.
10 THE WITNESS: When we had to renew the
11 permit, when it came up, we had -- there was
12 all this talk of the different associations,
13 the Illinois Asphalt Paving Association and
14 the Illinois Truckers' Association, going
15 together and getting blanket permits for
16 different operations, ours being mainly a
17 trucking and equipment storage yard.
18 That's what we were going to go
19 with, this trucking thing, and my brother
20 talked to somebody in the Illinois EPA's
21 office and said, well, yeah, that people are
22 going to get all of these blanket permits, so
23 at that particular time we didn't apply for
24 one. We thought that we could get a blanket
L.A. REPORTING (312) 419-9292
324
1 permit.
2 BY MR. JAWGIEL:
3 Q. Was it your understanding that Skokie
4 Valley at that point in time was not required to
5 renew its NPDES permit because it was going to fall
6 under this blanket permit based on what was said by
7 the Illinois EPA?
8 MR. COHEN: Objection, leading.
9 MR. JAWGIEL: I'm asking whether or
10 not it was his understanding or not.
11 MR. COHEN: Through the whole thing
12 this has now been one topic covered on direct
13 examination.
14 MR. JAWGIEL: They talked about the
15 NPDES permit. It clearly -- and the
16 parameters, not renewing it and things of
17 that nature and I'm trying to establish our
18 affirmative defense.
19 MR. COHEN: And you're leading him
20 through a blanket permit topic that was not
21 covered on direct.
22 HEARING OFFICER SUDMAN: Can you
23 rephrase the question?
24 MR. JAWGIEL: Your Honor, can you
L.A. REPORTING (312) 419-9292
325
1 please admonish the State that they're not to
2 direct their comments to me; they're to
3 direct the comments to the Court.
4 HEARING OFFICER SUDMAN: I will remind
5 all counsel to please direct your comments to
6 me.
7 Could you remind me of what the
8 question was, please?
9 MR. JAWGIEL: Sure.
10 BY MR. JAWGIEL:
11 Q. Sir, what was your understanding of
12 why Skokie Valley did not renew its permit at the
13 time that it was required to be?
14 A. We were under the understanding that
15 we could go in under a blanket permit under one of
16 the associations that we belonged to.
17 Q. And what was your understanding of who
18 lead you to believe that?
19 A. Well, I mean, my brother did talk to
20 somebody down at the EPA's office. Now whether or
21 not -- that's a million years ago whether or not we
22 can come up with the name of that person. And
23 everybody -- all of our competitors and people that
24 we dealt with were going to get a permit under this
L.A. REPORTING (312) 419-9292
326
1 blanket permit.
2 MR. COHEN: Objection, your Honor,
3 move to strike. Both answers are based on
4 hearsay.
5 HEARING OFFICER SUDMAN: Well, I think
6 it goes to -- it just goes to his
7 understanding. I don't think he's -- I'll
8 allow it.
9 BY MR. JAWGIEL:
10 Q. There was some talk about a particular
11 area surrounding the Skokie Valley site. What type
12 of properties or facilities, if you will, existed
13 around the Skokie Valley site back in May of 1995?
14 A. Well, I mean, to the west of us, we
15 had a farm and landscapers. To the south we had
16 more farms. To the east there was a landfill, a
17 railroad to the south and a car dealership to the --
18 or I mean, to the north the railroad tracks and the
19 car dealerships and houses.
20 Q. And was there a subdivision of houses
21 that was in that area?
22 A. Yes.
23 MR. JAWGIEL: At this point in time,
24 your Honor, I'm going to stop my examination
L.A. REPORTING (312) 419-9292
327
1 of Mr. Frederick. We do reserve the right to
2 recall him in our case in chief.
3 HEARING OFFICER SUDMAN: Okay.
4 Mr. Cohen, do you have anymore
5 questions?
6 MR. COHEN: I have nothing further.
7 HEARING OFFICER SUDMAN: Okay. Thank
8 you very much, Mr. Frederick. You are
9 finished for today but you may be needed
10 tomorrow.
11 THE WITNESS: Okay.
12 HEARING OFFICER SUDMAN: Anything
13 anyone wants to say while we're still on the
14 record?
15 MR. JAWGIEL: No.
16 HEARING OFFICER SUDMAN: Shall we go
17 off the record for a moment?
18 MR. JAWGIEL: Yes, please.
19 HEARING OFFICER SUDMAN: Okay. We'll
20 go off the record.
21 THE REPORTER: Okay.
22 HEARING OFFICER SUDMAN: We are back
23 on the record. It is 4:40. We've decided to
24 conclude for today. We will recess and we
L.A. REPORTING (312) 419-9292
328
1 will reconvene tomorrow at 9:00 a.m.
2 (Whereupon, at 4:40 p.m., an
3 adjournment was taken to
4 9:00 a.m., on Friday,
5 October 31, 2003.)
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
329
1 STATE OF ILLINOIS )
2 ) SS.
3 COUNTY OF DUPAGE )
4
5
6 I, MARIA E. SHOCKEY, CSR, do
7 hereby state that I am a court reporter doing
8 business in the City of Chicago, County of DuPage,
9 and State of Illinois; that I reported by means of
10 machine shorthand the proceedings held in the
11 foregoing cause, and that the foregoing is a true
12 and correct transcript of my shorthand notes so
13 taken as aforesaid.
14
15
16 _____________________
Maria E. Shockey, CSR
17 Notary Public,
DuPage County, Illinois
18
19 SUBSCRIBED AND SWORN TO
before me this ___ day
20 of ________, A.D., 2003.
21
_________________________
22 Notary Public
23
24
L.A. REPORTING (312) 419-9292
1
1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD OF THE
STATE OF ILLINOIS
2
3
PEOPLE OF THE STATE OF ILLINOIS, )
4 )
)
5 Complainant, )
)
6 vs ) No. PCB 96-98
)
7 SKOKIE VALLEY ASPHALT CO., INC., )
EDWIN L. FREDERICK, JR., )
8 individually and as owner and )
president of SKOKIE VALLEY )
9 ASPHALT CO., INC., and )
RICHARD J. FREDERICK, individually )
10 and as owner and vice president of )
SKOKIE VALLEY ASPHALT CO., INC., )
11 )
Respondents. )
12
13
14 VOLUME I - Pages 1 through 329
15
16 TRANSCRIPT OF PROCEEDINGS held in the
17 hearing of the above-entitled matter, taken
18 stenographically by Maria E. Shockey, CSR, before
19 CAROL SUDMAN, Hearing Officer, at the Libertyville
20 Village Hall, 118 West Cook Street, Libertyville,
21 Illinois, on the 30th of October, A.D., 2003, at
22 9:00 a.m.
23
24
L.A. REPORTING (312) 419-9292
2
1 A P P E A R A N C E S:
2
ILLINOIS POLLUTION CONTROL BOARD,
3 1021 North Grand Avenue East
Springfield, Illinois 62794-9274
4 (217) 524-8509
BY: MS. CAROL SUDMAN, HEARING OFFICER
5
6 OFFICE OF THE ILLINOIS ATTORNEY GENERAL,
188 West Randolph Street
7 20th Floor
Chicago, Illinois 60601
8 (312) 814-5282
BY: MR. MITCHELL L. COHEN
9 MR. BERNARD J. MURPHY
10
Appeared on behalf of the Complainant;
11
12 LAW OFFICE OF MICHAEL B. JAWGIEL, P.C.,
5487 North Milwaukee Avenue
13 Chicago, Illinois 60630
(773) 774-0814
14 BY: MR. MICHAEL B. JAWGIEL
15 - AND -
16 LAW OFFICE OF DAVID S. O'NEILL,
5487 North Milwaukee Avenue
17 Chicago, Illinois 60630-1249
(773) 792-1333
18 BY: MR. DAVID S. O'NEILL
19
Appeared on behalf of the Respondents.
20
21
22
23
24
L.A. REPORTING (312) 419-9292
3
1 I N D E X
2
3 OPENING STATEMENTS PAGE
4
By Mr. Cohen 6
5 By Mr. Jawgiel 14
6
7
8 WITNESS DX CX RDX RCX
9 MICHAEL GARRETSON 23
10 By Mr. Cohen
By Mr. Jawgiel 64
11
12 CHRIS KALLIS
13 By Mr. Murphy 114 205
By Mr. Jawgiel 165 210
14
15 DONALD KLOPKE
16 By Mr. Murphy 213 267
By Mr. Jawgiel 233 271
17
18 RICHARD JOHN FREDERICK
19 By Mr. Cohen 275
By Mr. Jawgiel 308
20
21
22
23
24
L.A. REPORTING (312) 419-9292
4
1 HEARING OFFICER SUDMAN: Good morning.
2 My name is Carol Sudman and I'm a hearing
3 officer with the Pollution Control Board.
4 This is the hearing for PCB 96-98, People
5 versus Skokie Valley Asphalt, Edwin L.
6 Frederick, Jr., and Richard J. Frederick.
7 It is October 30, 2003 and we are
8 beginning at 9:00 a.m. I will note for the
9 record that there are no members of the
10 public present. Members of the public are
11 allowed to provide public comment if they so
12 choose.
13 At issue in this case are the
14 allegations that respondents violated various
15 provisions of the Environment Protection Act
16 and the Board's regulations relating to water
17 pollution. The complaint concerns
18 respondent's facility in Grayslake,
19 Lake County.
20 You should know that it is the
21 Pollution Control Board and not me that will
22 make the final decision in this case. My
23 purpose is to conduct a hearing in a neutral
24 and orderly manner so that we have a clear
L.A. REPORTING (312) 419-9292
5
1 record of the proceedings. I will also
2 assess the credibility of any witnesses on
3 the record at the end of the hearing.
4 This hearing was noticed pursuant
5 to the Act and the Board's rules and will be
6 conducted pursuant to Sections 101.600
7 through 101.632 of the Board's procedural
8 rules.
9 At this time, I would like to ask
10 the parties to please make their appearances
11 on the record.
12 MR. COHEN: Madam Hearing Officer,
13 Mitchell Cohen, Assistant Attorney General,
14 representing the People of the State of
15 Illinois.
16 HEARING OFFICER SUDMAN: Thank you.
17 MR. MURPHY: Assistant Attorney
18 General Bernard J. Murphy, Jr., representing
19 the State of Illinois.
20 MR. O'NEILL: David O'Neill
21 representing the respondents.
22 MR. JAWGIEL: And Michael Jawgiel
23 representing the respondents as well.
24 HEARING OFFICER SUDMAN: Thank you
L.A. REPORTING (312) 419-9292
6
1 very much.
2 Would the People like to give an
3 opening statement?
4 MR. COHEN: Yes.
5 OPENING STATEMENT
6 BY MR. COHEN:
7 Madam Hearing Officer, Counselors,
8 beginning in December 1994 and continuing
9 through April 1995, the water in the Avon
10 drainage ditch had an oily sheen. The Avon
11 Fremont drainage ditch is a water of the
12 State that flows north past and not far from
13 the Skokie Valley Asphalt Company's site into
14 Third Lake, another water of the State.
15 The Skokie Valley Asphalt Company,
16 Inc., what used to be Liberty Asphalt, is
17 located in Grayslake, Lake County, Illinois.
18 When Skokie Valley Asphalt was in business,
19 it was owned and operated by respondents,
20 Edwin L. Frederick, Jr., who goes by Larry,
21 and his brother Richard J. Frederick.
22 Skokie Valley Asphalt or Liberty
23 Asphalt used to produce asphalt at the
24 Grayslake site. More recently before the
L.A. REPORTING (312) 419-9292
7
1 Frederick brothers sold their business, the
2 site was used for vehicle storage,
3 dispatching, and material storage. The
4 Frederick brothers ran an asphalt paving
5 business from the Grayslake site.
6 The area around the site is
7 farmland. There's also a residential area
8 and a nursery. There's no other industry,
9 factories or gas stations nearby. There's
10 just farm fields between the Skokie Valley
11 Asphalt site and the Avon drainage ditch.
12 In April of 1995, the Fredericks
13 discovered a drain tile that ran through
14 their property. The water in that drain tile
15 flowed toward the Avon drainage ditch. The
16 water in that drain tile also had an oily
17 sheen.
18 Finally, the Frederick brothers
19 contacted an environmental engineer. They
20 cut off the flow of oil to the Avon drainage
21 ditch, began looking for on-site sources and
22 solutions and are still in the process of
23 remediating the site in 2003.
24 You see, the water pollution event
L.A. REPORTING (312) 419-9292
8
1 alleged in the second amended complaint is
2 really the culmination of a long history of
3 environmental problems at the Skokie Valley
4 Asphalt site. The problems began many years
5 before, most dealing with water quality
6 issues. As a result, the Illinois
7 Environmental Protection Agency issued Skokie
8 Valley Asphalt Company a storm water NPDES
9 permit in 1986.
10 You're going to hear testimony
11 from Mike Garretson. He works for the
12 Illinois Environmental Protection Agency;
13 he has for over 20 years. He works for the
14 division of water pollution control
15 compliance assurance section. He will
16 explain about the compliance assurance
17 section, how they use NPDES permits and
18 discharge monitoring reports or DMRs.
19 Mr. Garretson has been with the
20 Illinois EPA long enough to know how this
21 system worked back in the '80s and early '90s
22 when Skokie Valley Asphalt was first issued
23 their permit. He was explaining Skokie
24 Valley Asphalt's DMR reporting requirements
L.A. REPORTING (312) 419-9292
9
1 and discharge concentration limits based on
2 their permit.
3 He will describe a number of
4 months when Skokie Valley Asphalt failed to
5 file any DMRs in two separate two-month
6 period where Skokie Valley Asphalt filed
7 identical DMRs. Except for the dates on the
8 DMRs, the scientific data was identical,
9 highly unusual.
10 Mr. Garretson will also testify to
11 a number of months where Skokie Valley
12 Asphalt reported excessive discharge
13 concentrations of total suspended solids in
14 their DMRs that they submitted to the
15 Illinois EPA.
16 You will hear testimony from
17 Chris Kallis. He works as a field inspector
18 for the Illinois EPA Bureau of Water. He's
19 been doing this for over 20 years too. He's
20 been inspecting the Skokie Valley Asphalt
21 site in Grayslake since the 1980s.
22 He's familiar with the
23 environmental history of the site, Skokie
24 Valley Asphalt's NPDES permit, and some of
L.A. REPORTING (312) 419-9292
10
1 the events surrounding the late 1994, '95
2 water pollution incident causing the oil
3 sheen on the Avon drainage ditch.
4 In March of 1995, Mr. Kallis took
5 a sample of the effluent feeding into the
6 Avon drainage ditch and had it tested for oil
7 and grease concentrations. Don Klopke will
8 also testify. He too works for the Illinois
9 EPA and has for many years. He works for the
10 office of emergency response.
11 He'll explain why the office of
12 emergency response was involved in an
13 investigation at the Avon drainage ditch at
14 the end of 1994, 1995. He'll explain why
15 the USEPA, United States Environmental
16 Protection Agency, became involved in that
17 investigation. Mr. Klopke will also describe
18 his observations at the Avon drainage ditch
19 in 1995 and how Skokie Valley Asphalt
20 ultimately became involved in the clean-up of
21 the ditch.
22 As I mentioned earlier, Skokie
23 Valley Asphalt hired an environmental
24 engineer in April of 1995 after discovering
L.A. REPORTING (312) 419-9292
11
1 oil in a drain tile on their property. The
2 engineer's name is James Huff. He will
3 testify as well. The People expect Mr. Huff
4 to testify about how he was contacted by
5 Skokie Valley Asphalt, that a site visit was
6 scheduled but before his site visit, Skokie
7 Valley Asphalt called explaining that they
8 had discovered oil in a field tile that ran
9 through their property.
10 This discovery lead to a chain of
11 events that continues in 2003, for example,
12 the drain tile with oil in it was plugged so
13 it no longer flowed to the Avon drainage
14 ditch. Skokie Valley Asphalt placed oil
15 absorbing booms in the Avon drainage ditch to
16 prevent the oil from flowing north into Third
17 Lake.
18 A leaking underground storage tank
19 was removed from the Skokie Valley Asphalt
20 site and other on-site areas were remediated
21 to remove oil contamination. Mr. Huff found
22 these other areas of contaminating after
23 learning about the history of the site from
24 the Fredericks and digging test pits. He
L.A. REPORTING (312) 419-9292
12
1 worked with and reported directly to the
2 Frederick brothers.
3 With Mr. Huff's help, Skokie
4 Valley Asphalt did apply to participate in
5 the Illinois EPA site remediation program
6 seeking a focused no further remediation
7 letter, not in 1995 when the oil was
8 discovered on site, it wasn't until 1998.
9 That leaves the respondents, Larry and
10 Richard Frederick. I already mentioned they
11 owned and operated Skokie Valley Asphalt
12 Company, 50/50.
13 They were responsible for the
14 whole operation. They both dealt with the
15 Illinois EPA and James Huff reports to both
16 of them. They both worked at the Skokie
17 Valley Asphalt site in Grayslake for decades,
18 that is, until 1998. In 1998, the Frederick
19 brothers dissolved their corporations and in
20 1998, the Frederick brothers sold their
21 business, including the site in Grayslake for
22 over
23 $8 million.
24 At the end of all the evidence, we
L.A. REPORTING (312) 419-9292
13
1 expect each of the respondents to be found in
2 violation of the Act and liable for all five
3 counts alleged in the second amended
4 complaint: Filing false reports, filing late
5 to renew their permit, failing to comply with
6 sampling and reporting requirements, water
7 pollution, and violating effluent limits.
8 At that time, the People of the
9 State of Illinois will ask this Board for
10 cease and desist orders against the
11 respondents, civil penalties, and all other
12 remedies under the law and relief the Board
13 deems appropriate.
14 HEARING OFFICER SUDMAN: Thank you.
15 Mr. Jawgiel, would you like to make an
16 opening statement?
17 MR. JAWGIEL: Yes, very briefly. But
18 I also would like to address when the --
19 HEARING OFFICER SUDMAN: The motions?
20 MR. JAWGIEL: Right, the motions.
21 HEARING OFFICER SUDMAN: Yes. Before
22 the People present their case, I would ask
23 that you --
24 MR. JAWGIEL: Renew those motions?
L.A. REPORTING (312) 419-9292
14
1 HEARING OFFICER SUDMAN: Yes.
2 MR. JAWGIEL: Okay. I just wanted to
3 make sure we're all on the same procedure;
4 that's all.
5 HEARING OFFICER SUDMAN: Yes. Thank
6 you.
7 MR. JAWGIEL: Thanks a lot.
8 OPENING STATEMENT
9 BY MR. JAWGIEL:
10 Counsels, Madam Hearing Officer,
11 what's missing from the opening statement of
12 the State is quite clear and it's glaring, it
13 really is. What the evidence won't show is
14 as much as important as what the evidence
15 will show.
16 And what the evidence won't show
17 in this case is very simple. The evidence
18 shows that anybody took the time out to take
19 a sample from the site of Skokie Valley and
20 match it to what was in the creek.
21 They're doing this clearly by
22 smoke in mirrors. Nobody whether it's
23 Mr. Kallis -- you'll hear him testify that he
24 didn't even look to see where this drain tile
L.A. REPORTING (312) 419-9292
15
1 ran. He didn't canvas the area for other
2 businesses that may contribute to this. He
3 doesn't know what's in the area at all.
4 You'll also hear from him in his
5 testimony when we called him in our case in
6 chief that he thought it was pure conjecture
7 that the oil was coming from Skokie Valley.
8 So we hear a lot about what the State says
9 they're going to prove but the key is they
10 can't prove that what was in that creek
11 actually came from somewhere on Skokie Valley
12 property. That's a very important issue.
13 With respect to the false filing
14 reports, with respect to that issue, the
15 Fredericks are not responsible. They are not
16 the permittees. The permittee in this case
17 is Skokie Valley. And if you find that
18 Skokie Valley was responsible for that, then
19 you'll also have to look at the circumstances
20 around that.
21 You have to realize that you'll
22 hear testimony both from Richard and Larry
23 Frederick who will state that they did all
24 the testing. They corrected the reports once
L.A. REPORTING (312) 419-9292
16
1 they found out that there was some error,
2 clerical errors, in filing. You'll also hear
3 from Mr. Huff saying that there was no
4 environmental impact from those reports.
5 You'll also hear from Mr. Kallis
6 who will say in his testimony that it is his
7 procedure not to even take note of the
8 particular DMRs until maybe two or three
9 reports down the road that's showing elevated
10 levels.
11 But apparently, in this case we
12 have a situation where they seem to have
13 picked on Skokie Valley and they did so in an
14 untimely fashion. They waited on their
15 hands. They sat on their hands and then they
16 came years later and required these gentlemen
17 and Skokie Valley to defend themselves.
18 And you'll hear numerable times
19 during the course of this that a document is
20 no longer is existence, that people cannot
21 remember what was said, what was done, and
22 all that plays into the fact that the State
23 is trying to bring a case by delay and
24 sandbagging.
L.A. REPORTING (312) 419-9292
17
1 When we talk about the sampling
2 procedures, you're going to see again there's
3 no critique of how they took the sample.
4 Nobody has the opinion that the sampling was
5 done inappropriately. Nobody can tie in the
6 fact that there was actually damage that lead
7 into the waterways.
8 They'll tell you, oh, yes, well,
9 the Avon Creek leads into Grayslake and also
10 feeds into Third Lake, but there's no testing
11 that Grayslake or Third Lake was affected
12 whatsoever by this and you won't hear that
13 either.
14 At the close of our case, we will
15 request that the Board find in favor of the
16 respondents and we will seek our appropriate
17 remedies from there as well.
18 Thank you.
19 HEARING OFFICER SUDMAN: Thank you.
20 Before you have a seat, Mr. Jawgiel, would
21 you like to now address your motions?
22 MR. JAWGIEL: Sure. Thank you.
23 Just for the record, these motions
24 were presented in total two days ago, Madam
L.A. REPORTING (312) 419-9292
18
1 Hearing Officer, is that correct?
2 HEARING OFFICER SUDMAN: I think it
3 was October 27.
4 MR. JAWGIEL: 27th? It's all a blur.
5 In total we have a motion in
6 limine. We also have various motions to
7 bar -- one motion to bar Mr. Ken Savage,
8 which apparently, Mr. Savage is not going to
9 be a witness here today or tomorrow if I took
10 the State's opening statement to be correct.
11 MR. COHEN: Correct.
12 MR. JAWGIEL: So we can set that
13 aside.
14 We do have a motion to bar or
15 limit the testimony of Mr. Klopke, a motion
16 to bar or limit the testimony of
17 Mr. Garretson, a motion to bar or limit the
18 testimony of Ms. Lavis, and apparently, she's
19 not testifying either, so we'll set this
20 aside.
21 So basically, we're down to our
22 motions in limine, which they're a series of
23 motions within --
24 HEARING OFFICER SUDMAN: Right. As I
L.A. REPORTING (312) 419-9292
19
1 had told you yesterday, I will admit those
2 into the record as if read. And my rulings
3 that I made in my hearing officer order on
4 October 28 will stand. I recall attaching
5 those, so that will all be in the record for
6 you, okay?
7 MR. JAWGIEL: Okay. Madam Hearing
8 Officer, we will be renewing objections as
9 evidence is provided to preserve our right of
10 appeal if this goes that far, but I think
11 we're obligated to do so. We don't mean to
12 be --
13 HEARING OFFICER SUDMAN: I mean, with
14 some lines I may ask you to make a continuing
15 objection just so that --
16 MR. JAWGIEL: That's fair enough.
17 HEARING OFFICER SUDMAN: -- we can
18 move things along.
19 MR. JAWGIEL: As long as the record is
20 clear on that issue.
21 HEARING OFFICER SUDMAN: Yes,
22 absolutely.
23 MR. JAWGIEL: We're not trying to
24 delay or by any means stretch this out.
L.A. REPORTING (312) 419-9292
20
1 Would you like me to submit this
2 to --
3 HEARING OFFICER SUDMAN: Yes, please.
4 MR. JAWGIEL: Those are the motions
5 that we are standing on. The ones that I've
6 redacted, I'll just take back to the desk.
7 HEARING OFFICER SUDMAN: Okay. Thank
8 you. These will be admitted to the record
9 and I will attach a copy of my October 28
10 hearing officer order to the back of these.
11 Are there anymore preliminary
12 matters that we need to discuss before the
13 People present their case?
14 MR. COHEN: I can't think of any.
15 HEARING OFFICER SUDMAN: Okay.
16 MR. JAWGIEL: Exclude witnesses, your
17 Honor, of -- exclude witnesses who are
18 nonparties to the testimony that's going to
19 be provided here. We would ask that
20 witnesses who are either not the Fredericks
21 or witnesses who are not the representatives
22 of the Illinois EPA be excluded from the room
23 from hearing other testimony.
24 HEARING OFFICER SUDMAN: I don't know.
L.A. REPORTING (312) 419-9292
21
1 I mean, do you object to that?
2 MR. COHEN: I know that's normal
3 courtroom procedure. I don't know what the
4 Board does.
5 HEARING OFFICER SUDMAN: I mean, we
6 normally don't do that, but I don't have a
7 problem with it. I mean, you just have
8 one -- do you have any witnesses here who are
9 not --
10 MR. COHEN: Yes. We were planning to
11 call Mr. Garretson first and that would leave
12 Mr. Kallis in the room.
13 HEARING OFFICER SUDMAN: But
14 Mr. Kallis is not testifying; is that
15 correct?
16 MR. COHEN: He's going to testify
17 next.
18 HEARING OFFICER SUDMAN: Oh, he is
19 going to testify next.
20 MR. COHEN: Right.
21 HEARING OFFICER SUDMAN: Okay. All
22 right.
23 MR. COHEN: So you would ask
24 Mr. Kallis to be excused?
L.A. REPORTING (312) 419-9292
22
1 HEARING OFFICER SUDMAN: Yes, please.
2 I would also like to note for the
3 record that Mr. Joel Sternstein is here from
4 the Attorney General's office. The People
5 did request that Mr. Sternstein be allowed to
6 sit in. I granted that request under the
7 condition that Mr. Sternstein did not
8 communicate with anybody involved in the
9 hearing.
10 If there is anyone here not
11 involved with the hearing, you may
12 communicate with them. You may also
13 communicate with me if you need to, Joel. So
14 with that warning aside, you may observe.
15 The People may present their case.
16 MR. COHEN: Thank you, Madam Hearing
17 Officer. Our first witness will be Mike
18 Garretson.
19 HEARING OFFICER SUDMAN: Would you
20 please swear him in?
21 THE REPORTER: Sure.
22 (Witness sworn.)
23
24
L.A. REPORTING (312) 419-9292
23
1 WHEREUPON:
2 MICHAEL GARRETSON
3 called as a witness herein, having been first duly
4 sworn, deposeth and saith as follows:
5 D I R E C T E X A M I N A T I O N
6 BY MR. COHEN:
7 Q. Would you please state your name and
8 spell your last name for the record?
9 A. Michael Garretson, G-A-R-R-E-T-S-O-N.
10 Q. Mr. Garretson, where do you work?
11 A. I work for the Illinois Environmental
12 Protection Agency.
13 Q. And do you work and live in
14 Springfield?
15 A. Yes, I do.
16 Q. How long have you worked for the
17 Illinois Environmental Protection Agency?
18 A. For 24 years.
19 Q. Where did you work for the agency when
20 you started working there 24 years ago?
21 A. I started in the water pollution
22 control division in the operator certification unit.
23 Q. And have you held other positions over
24 your 24 years there?
L.A. REPORTING (312) 419-9292
24
1 A. In 1987, I became the manager of the
2 compliance operations unit and then in January of
3 2003, I became the acting manager of the compliance
4 assurance section.
5 Q. What is the compliance operations
6 unit?
7 A. The compliance operations unit
8 provides support for the compliance assurance
9 section. It is a unit of the section codes, NPDES
10 permits, and processes DMR forms, discharge
11 monitoring report forms, received by the agency.
12 Q. You also mentioned NPDES permits.
13 What does NPDES stand for?
14 A. National Pollutant Discharge
15 Elimination System.
16 Q. What responsibilities does the
17 compliance assurance section have?
18 A. To monitor compliance of water and
19 waste water treatment facilities with NPDES permits,
20 to process DMR forms and to take compliance actions
21 as necessary.
22 Q. Now, you mentioned waste water, would
23 you also have storm water responsibilities?
24 A. Yes.
L.A. REPORTING (312) 419-9292
25
1 Q. And what does your unit actually do
2 with NPDES permits? And let me direct your
3 attention more toward the late 1980s, early 1990s
4 rather than today.
5 A. Well, what we do is monitor the
6 compliance of waste water facilities with the NPDES
7 permits, compare discharge monitoring reports with
8 limits contained in those permits.
9 Q. You keep saying waste water, but do
10 you also mean storm water?
11 A. Yes.
12 Q. And is one of the ways that you do
13 that monitoring with discharge monitoring reports or
14 DMRs?
15 A. Yes.
16 Q. And what do you do with those?
17 A. Discharge monitoring reports are
18 received, they are logged in and distributed, and
19 compared with NPDES permit limits.
20 Q. Are you familiar with the Skokie
21 Valley Asphalt Company?
22 A. Yes. I'm familiar that they had an
23 NPDES permit.
24 Q. And is that basically how you're
L.A. REPORTING (312) 419-9292
26
1 familiar with that company?
2 A. Yes.
3 Q. You have never gone out the Grayslake
4 and seen the facility or anything like that?
5 A. No, I haven't.
6 MR. COHEN: Madam Hearing Officer, may
7 I approach?
8 HEARING OFFICER SUDMAN: Yes.
9 BY MR. COHEN:
10 Q. Mr. Garretson, I'm handing you a white
11 binder entitled Complainant's Exhibits. I also have
12 one here for the hearing officer --
13 HEARING OFFICER SUDMAN: Oh, thank
14 you.
15 Q. -- and one has been given to
16 respondents' counsel.
17 Directing your attention to
18 Complainant's Exhibit No. 1, do you recognize that
19 exhibit?
20 MR. JAWGIEL: I'm going to object to
21 the foundation.
22 HEARING OFFICER SUDMAN: Would you
23 like to lay some foundation for this?
24 MR. COHEN: That's exactly what I'm
L.A. REPORTING (312) 419-9292
27
1 trying to do.
2 HEARING OFFICER SUDMAN: Okay.
3 THE WITNESS: Yes. It's the NPDES
4 permit issued to Skokie Valley Asphalt
5 Company.
6 BY MR. COHEN:
7 Q. And when was that permit issued to
8 them?
9 MR. JAWGIEL: Your Honor, I'm going to
10 object. This goes beyond the scope of his
11 213 interrogatories.
12 HEARING OFFICER SUDMAN: Overruled.
13 THE WITNESS: It was issued on
14 April 4, 1986.
15 BY MR. COHEN:
16 Q. And when did this become effective?
17 A. May 4, 1986.
18 Q. And when did this permit expire?
19 A. March 1, 1991.
20 Q. Is that a true and correct copy of the
21 permit?
22 A. Yes, it is.
23 Q. And is that permit kept in the
24 ordinary course of Illinois EPA business?
L.A. REPORTING (312) 419-9292
28
1 A. Yes, it is.
2 Q. What is the permit number issued to
3 the Skokie Valley Asphalt Company?
4 A. IL-0065005.
5 Q. Did the NPDES permit issued to Skokie
6 Valley Asphalt Company require them to submit DMRs?
7 MR. JAWGIEL: Your Honor, objection,
8 legal conclusion.
9 HEARING OFFICER SUDMAN: The question
10 or the answer?
11 MR. JAWGIEL: The question asks for a
12 legal conclusion whether or not the permit
13 requires -- the requirements of the permit
14 speak for themselves.
15 HEARING OFFICER SUDMAN: Overruled.
16 I'll allow it.
17 MR. JAWGIEL: I'll object also to
18 foundation. He hasn't established that this
19 individual knows the requirements of an NPDES
20 permit at the time of issuance.
21 HEARING OFFICER SUDMAN: Okay. Well,
22 he's not finished.
23 THE WITNESS: Yes. The NPDES permit
24 requires the permittee to submit monthly
L.A. REPORTING (312) 419-9292
29
1 discharge monitoring report forms.
2 BY MR. COHEN:
3 Q. And when would Skokie Valley Asphalt
4 Company be required to start submitting their
5 discharge monitoring reports?
6 MR. JAWGIEL: Same objection, your
7 Honor. We haven't established a foundation
8 that this individual is knowledgeable with
9 respect to this permit at the time. That
10 foundation has not been laid.
11 HEARING OFFICER SUDMAN: Would you
12 like to make a continuing objection? I mean,
13 it sounds like he's moving in that direction.
14 MR. JAWGIEL: Yes. That's fine, your
15 Honor. I'll have a continuing objection. I
16 assume that my objections are overruled?
17 HEARING OFFICER SUDMAN: Yes.
18 Please continue and please do
19 establish a foundation.
20 THE WITNESS: Could you please repeat
21 the question?
22 BY MR. COHEN:
23 Q. Let me go back to your work again with
24 the compliance assurance section. Back in the late
L.A. REPORTING (312) 419-9292
30
1 '80s, what did your division do when you received
2 NPDES permits?
3 A. As NPDES permits were issued, the
4 requirements contained in those permits were entered
5 into a computer system for tracking.
6 Q. So would your unit be responsible for
7 reviewing those permits and learning and
8 understanding what the requirements of the permits
9 were?
10 MR. JAWGIEL: Objection, your Honor,
11 leading.
12 HEARING OFFICER SUDMAN: Well, you are
13 leading a little bit. Could you just --
14 MR. COHEN: He keeps asking me to lay
15 the foundation.
16 HEARING OFFICER SUDMAN: Yeah. I
17 mean, this is pretty introductory stuff.
18 MR. JAWGIEL: It's introductory, but
19 he can simply ask what was the responsibility
20 of your department. He doesn't have to lay
21 it out for him step by step. This individual
22 who allegedly is a knowledgeable person of
23 the procedures can tell us in his detail --
24 in his own words, what this department does.
L.A. REPORTING (312) 419-9292
31
1 HEARING OFFICER SUDMAN: Well, I think
2 he's just trying to speed things along a
3 little bit because you want foundation and
4 the witness doesn't know what information
5 you're looking for and I think Mr. Cohen can
6 help him reach that a little faster.
7 MR. JAWGIEL: He's not allowed to lead
8 in order to shrunkate this proceeding for his
9 benefit. If this individual doesn't give the
10 testimony he wants, that's the State's
11 problem.
12 HEARING OFFICER SUDMAN: Mr. Jawgiel,
13 I will not allow him to lead the witness.
14 However, I consider this testimony on laying
15 the foundation to be fairly preliminary.
16 MR. JAWGIEL: Thank you, your Honor.
17 HEARING OFFICER SUDMAN: So your
18 objection is overruled.
19 Please continue.
20 BY MR. COHEN:
21 Q. Do you remember the question?
22 A. No. I'm sorry.
23 Q. Is part of the function of your unit
24 to review the requirements of the NPDES permits so
L.A. REPORTING (312) 419-9292
32
1 that you would know what those requirements were?
2 MR. JAWGIEL: Same objection.
3 HEARING OFFICER SUDMAN: Would you
4 like to make a standing objection,
5 Mr. Jawgiel?
6 MR. JAWGIEL: Please. Thank you,
7 your Honor.
8 THE WITNESS: The NPDES permits, like
9 I said, are reviewed and coded into a
10 computer system for compliance tracking.
11 BY MR. COHEN:
12 Q. And did you do that -- did your unit
13 do that with the Skokie Valley Asphalt Company?
14 A. Yes, we did.
15 Q. When was Skokie Valley Asphalt
16 supposed to start submitting their DMR reports?
17 MR. JAWGIEL: Same objection,
18 foundation.
19 HEARING OFFICER SUDMAN: You have a
20 standing objection to this entire line of
21 questioning, okay?
22 MR. JAWGIEL: Thank you, your Honor.
23 Please continue.
24 THE WITNESS: It would have been
L.A. REPORTING (312) 419-9292
33
1 June 15, 1986.
2 BY MR. COHEN:
3 Q. And why do you say June 15, 1986?
4 A. Because the NPDES permit requires the
5 permittee to submit the discharge monitoring report
6 form no later than the 15th of the following month.
7 Q. The 15th of the following month?
8 A. For each month, yes.
9 Q. Is that the 15th of the following
10 month after the permit is issued?
11 A. After the permit becomes effective.
12 Q. And does that DMR responsibility begin
13 even if the company is not discharging?
14 A. Yes. The NPDES permit states that.
15 Q. Can you explain the process that the
16 Illinois EPA uses when DMRs are received at the
17 division of water pollution control compliance
18 assurance section and, again, I'm referring to back
19 in the late '80's or early '90s?
20 A. Yes. At that time, DMRs were received
21 in the mail. They were opened -- the mail was
22 opened by one particular individual, then the DMRs
23 were date stamped and then provided to another
24 individual for logging in our DMR submission records
L.A. REPORTING (312) 419-9292
34
1 and then they were copied and distributed to our
2 regional offices and our records unit.
3 Q. Is that generally the same procedure
4 that was used for Skokie Valley Asphalt Company's
5 DMR?
6 MR. JAWGIEL: Your Honor, I'm going to
7 object. There's no foundation with respect
8 to this individual's personal knowledge of
9 what happened to the DMRs submitted by Skokie
10 Valley.
11 HEARING OFFICER SUDMAN: Overruled.
12 THE WITNESS: Yes.
13 BY MR. COHEN:
14 Q. Directing your attention to
15 Complaint's Exhibit No. 2, do you recognize that?
16 MR. JAWGIEL: I'm going to object to
17 the foundation, your Honor. That is not a
18 proper form of a question to establish an
19 exhibit.
20 HEARING OFFICER SUDMAN: I'll allow
21 it. Just allow him a couple of questions to
22 establish a foundation, you know, first.
23 So please go ahead.
24 THE WITNESS: Yes. This is the
L.A. REPORTING (312) 419-9292
35
1 November 1990 discharge monitoring report
2 form submitted by Skokie Valley Asphalt
3 Company, Incorporated.
4 BY MR. COHEN:
5 Q. When was it received by the Illinois
6 EPA?
7 A. On December 18, 1990.
8 Q. How can you tell that it was received
9 by the Illinois EPA on that date?
10 A. By the compliance assurance section
11 date stamp on the document.
12 Q. Are all DMRs stamped received by your
13 unit?
14 MR. JAWGIEL: I'm going to object,
15 your Honor, with respect to foundation. He
16 can talk about procedure but he can't talk --
17 unless he establishes a foundation that this
18 individual processed every single DMR,
19 whether or not every single DMR has been
20 stamped.
21 HEARING OFFICER SUDMAN: You can make
22 a standing objection as to the foundation of
23 this document, but I'm going to overrule your
24 objection for now.
L.A. REPORTING (312) 419-9292
36
1 Please continue.
2 THE WITNESS: DMRs are generally date
3 stamped. There have been times when not all
4 of them have been stamped.
5 BY MR. COHEN:
6 Q. Do you know why sometimes not all DMRs
7 were date stamped?
8 A. Well, I do know back at the time that
9 we're talking about that we received a lot of
10 discharge monitoring report forms. We had the
11 practice of date stamping every individual page of
12 the DMR. We made a procedural change so that just
13 the top page of the documents would be date stamped.
14 But in some cases when multiple
15 submissions of DMRs could come in together, it
16 resulted in errors because the top copy got stamped
17 and not all of the DMRs.
18 Q. Do you know of any other reasons DMRs
19 might not have been date stamped?
20 A. It could be human error.
21 Q. Who certified and signed that DMR?
22 MR. JAWGIEL: I'm going to object to
23 the foundation, your Honor.
24 HEARING OFFICER SUDMAN: Overruled.
L.A. REPORTING (312) 419-9292
37
1 THE WITNESS: Richard J. Frederick,
2 vice president of Skokie Valley Asphalt
3 Company, Incorporated.
4 BY MR. COHEN:
5 Q. Directing your attention to
6 Complaint's Exhibit No. 3, do you recognize that
7 exhibit?
8 A. That's the December 1990 discharge
9 monitoring report form for Skokie Valley Asphalt
10 Company.
11 Q. And when was that DMR received by the
12 Illinois EPA?
13 A. April 25, 1991.
14 Q. By the way, when was that DMR due to
15 the Illinois EPA?
16 A. January 15, 1991.
17 Q. Who signed and certified that DMR?
18 A. Richard J. Frederick, vice president
19 of Skokie Valley Asphalt Company.
20 Q. Other than the dates, is the data
21 contained in Skokie Valley Asphalt's November 1990
22 DMR, which was Complainant's Exhibit No. 2,
23 identical to the data contained in its
24 December 1990 DMR, Complainant's Exhibit
L.A. REPORTING (312) 419-9292
38
1 No. 3?
2 MR. JAWGIEL: Your Honor, I'm going to
3 object. The document speaks for itself.
4 HEARING OFFICER SUDMAN: Overruled.
5 You can answer.
6 THE WITNESS: Yes, it's identical.
7 BY MR. COHEN:
8 Q. But for the dates on those two
9 documents, do the copies appear to be identical?
10 MR. JAWGIEL: I'm going to object,
11 your Honor, with respect to foundation.
12 This individual has not been qualified as an
13 expert in determining the photocopying
14 qualities of two different documents.
15 HEARING OFFICER SUDMAN: That's true,
16 but the Board is able to weigh his testimony
17 and see for themselves, so I'll allow him to
18 answer to the extent that he's able with his
19 credentials.
20 THE WITNESS: The documents look
21 identical.
22 BY MR. COHEN:
23 Q. Directing your attention to
24 Complainant's Exhibit No. 4, do you recognize that?
L.A. REPORTING (312) 419-9292
39
1 A. It's the discharge monitoring report
2 form submitted for January 1991 by Skokie Valley
3 Asphalt Company.
4 Q. When was that discharge monitoring
5 report due to the Illinois EPA?
6 A. February 15, 1991.
7 Q. And when was that document received by
8 the Illinois EPA?
9 A. April 25, 1991.
10 Q. Who signed and certified that
11 document?
12 A. Richard J. Frederick, vice president
13 of Skokie Valley Asphalt Company.
14 Q. Directing your attention to
15 Complainant's Exhibit No. 5, do you recognize that
16 document?
17 A. It is the February 1991 discharge
18 monitoring report form for Skokie Valley Asphalt
19 Company.
20 Q. When was that received by the Illinois
21 EPA?
22 A. February 28, 1991.
23 Q. Who signed and certified that
24 document?
L.A. REPORTING (312) 419-9292
40
1 A. Richard J. Frederick, vice president
2 of Skokie Valley Asphalt Company.
3 Q. Other than the dates on Complainant's
4 Exhibits 4 and 5, Skokie Valley Asphalt DMRs for
5 January 1991 and February 1991, is the data
6 contained in both DMRs identical?
7 A. Yes, it is.
8 Q. But for the dates, do the copies
9 appear to be identical?
10 MR. JAWGIEL: Objection, your Honor,
11 foundation. This witness has not been
12 qualified as an expert to determine whether
13 or not the copies of two different documents
14 are identical.
15 HEARING OFFICER SUDMAN: I'm
16 overruling that for the same reason as
17 before.
18 THE WITNESS: Yes, it's identical.
19 BY MR. COHEN:
20 Q. Is it unusual to get DMRs from the
21 same company with identical scientific data two
22 months in a row?
23 MR. JAWGIEL: Your Honor, objection.
24 He hasn't laid the foundation with respect to
L.A. REPORTING (312) 419-9292
41
1 the frequency of that occurrence, his
2 experience with that, his review of the DMRs
3 during this period of time, et cetera. He
4 has not laid the proper foundation for that
5 opinion.
6 HEARING OFFICER SUDMAN: Overruled.
7 THE WITNESS: Yes, it is unusual.
8 BY MR. COHEN:
9 Q. Why do you say it's unusual?
10 A. Because there are many variables in
11 the -- weather could have an effect. Sampling
12 procedures and testing procedures could all be
13 variables and result in different values reported on
14 discharge monitoring report forms.
15 Q. Referring back to Skokie Valley
16 Asphalt's NPDES permit, IL-0065005, Complainant's
17 Exhibit No. 1, when did Skokie Valley Asphalt's
18 permit expire?
19 A. March 1, 1991.
20 Q. According to their permit, when did
21 Skokie Valley Asphalt have to reapply for their
22 permit if they wanted to continue to discharge
23 waters of the State after March 1, 1991?
24 A. Well, 180 days prior to the expiration
L.A. REPORTING (312) 419-9292
42
1 date.
2 Q. Did Skokie Valley Asphalt reapply for
3 their NPDES permit 180 days before March 1, 1991?
4 A. No, they didn't.
5 Q. Directing your attention to
6 Complainant's Exhibit No. 6, do you recognize that
7 document?
8 A. It's a permit renewal application
9 submitted for Skokie Valley Asphalt Company, permit
10 number IL-0065005.
11 Q. When was that permit renewal
12 application received by the Illinois EPA?
13 A. June 5, 1991.
14 Q. And who submitted that application?
15 A. Edwin L. Frederick, Jr., president of
16 Skokie Valley Asphalt Company.
17 Q. Did he also sign that application?
18 A. Yes, he did.
19 Q. Now, was that permit renewal
20 application received by the compliance assurance
21 section?
22 A. Yes, it was.
23 Q. Why did Skokie Valley Asphalt send the
24 compliance assurance section its permit renewal
L.A. REPORTING (312) 419-9292
43
1 application?
2 MR. JAWGIEL: Your Honor, I'm going
3 to object. That asks for speculation on the
4 state of mind and reasoning behind this from
5 another entity. He's asking this individual
6 why Skokie Valley did something and I don't
7 think this individual can speak for Skokie
8 Valley.
9 HEARING OFFICER SUDMAN: What was your
10 question?
11 MR. COHEN: My question was why did
12 Skokie Valley Asphalt Company send the permit
13 renewal application to the compliance
14 assurance section.
15 HEARING OFFICER SUDMAN: I'll allow
16 it -- as opposed to sending it anywhere else?
17 MR. COHEN: Correct.
18 HEARING OFFICER SUDMAN: I'll allow
19 that.
20 THE WITNESS: It was requested of
21 Skokie Valley to send it to the compliance
22 assurance section and a compliance inquiry
23 letter to them in April of 1991.
24 MR. JAWGIEL: Your Honor, is he
L.A. REPORTING (312) 419-9292
44
1 looking at that letter as we speak?
2 HEARING OFFICER SUDMAN: He appears to
3 be.
4 MR. JAWGIEL: Are you looking at the
5 letter, sir?
6 HEARING OFFICER SUDMAN: Exhibit 6?
7 MR. JAWGIEL: Exhibit 6 is not the
8 letter.
9 HEARING OFFICER SUDMAN: Oh.
10 MR. JAWGIEL: Exhibit 6 is the renewal
11 application form.
12 HEARING OFFICER SUDMAN: Isn't that
13 what you were talking about?
14 MR. COHEN: Correct.
15 MR. JAWGIEL: But this witness said --
16 I want to know what exhibit is in front of
17 him because he has a whole stack of exhibits.
18 My concern is he's reviewing an exhibit that
19 hasn't been admitted at this point in time.
20 HEARING OFFICER SUDMAN: What exhibit
21 are you reviewing, sir?
22 THE WITNESS: The permit renewal
23 application form.
24 HEARING OFFICER SUDMAN: Okay. And
L.A. REPORTING (312) 419-9292
45
1 that's what you were talking about?
2 THE WITNESS: No.
3 HEARING OFFICER SUDMAN: No, that's
4 not what you were talking about?
5 THE WITNESS: No.
6 HEARING OFFICER SUDMAN: What were you
7 talking about?
8 THE WITNESS: About a compliance
9 inquiry letter that --
10 HEARING OFFICER SUDMAN: Okay. So
11 that was not the subject of this question; is
12 that correct? Can we back up a little bit
13 and just start again?
14 MR. COHEN: Yes.
15 BY MR. COHEN:
16 Q. Mr. Garretson, is it unusual for a
17 company to send a permit renewal application to the
18 compliance assurance section instead of the permit
19 section?
20 MR. JAWGIEL: Objection, your Honor.
21 That goes beyond his 213 disclosures.
22 HEARING OFFICER SUDMAN: Overruled.
23 THE WITNESS: It's not unusual when
24 it's requested in a compliance inquiry
L.A. REPORTING (312) 419-9292
46
1 letter.
2 BY MR. COHEN:
3 Q. Why did Skokie Valley Asphalt Company
4 send the compliance assurance section its permit
5 renewal application?
6 MR. JAWGIEL: Same objection, your
7 Honor, with respect --
8 HEARING OFFICER SUDMAN: Would you
9 like to make a standing objection to that?
10 MR. JAWGIEL: Please. Thank you.
11 HEARING OFFICER SUDMAN: Please
12 continue.
13 THE WITNESS: Because it was requested
14 in a compliance inquiry letter to Skokie
15 Valley.
16 BY MR. COHEN:
17 Q. You're not looking at this letter, are
18 you?
19 A. No, I'm not.
20 Q. Do you know why such a letter was sent
21 to Skokie Valley Asphalt Company?
22 A. Because the permit had expired and the
23 permit application had not been received.
24 Q. And that would be something that would
L.A. REPORTING (312) 419-9292
47
1 be the responsibility of your unit?
2 A. That's correct.
3 Q. If the permit section needs additional
4 information related to a permit renewal application,
5 would the compliance assurance section have any
6 responsibility for that?
7 A. No.
8 Q. Directing your attention to
9 Complainant's Exhibit No. 7, it appears to be a
10 submittal of additional information. As I
11 understand it, your unit would not be involved with
12 this?
13 A. That's correct.
14 Q. Earlier you mentioned that DMRs are
15 logged in at the division of water pollution control
16 compliance assurance section and I'm talking about
17 late '80s, early '90s. Can you describe the
18 procedure in a little more detail?
19 A. As DMRs are received in the compliance
20 assurance section, the mail is opened, the DMRs are
21 date stamped, then they are given to an individual
22 who makes a record of the DMR submissions in what we
23 call discharge -- DMR submission records.
24 Q. What is a DMR submission record?
L.A. REPORTING (312) 419-9292
48
1 A. It's a logbook of a list of NPDES
2 permit numbers where the dates of DMR submissions
3 are recorded.
4 Q. Now, is this the procedure that's
5 still at the agency?
6 A. No. We started doing an electronic
7 log in, I believe, it was 1987.
8 Q. And I know we're talking about --
9 A. I apologize. That's 1997.
10 Q. Okay. I know we're talking
11 15 years ago, but does the Illinois EPA still have
12 some of those logbooks from back then?
13 A. Yes, we do.
14 Q. Directing your attention to
15 Complainant's Exhibit No. 8, do you recognize that
16 exhibit?
17 A. Yes. These are the sheets out of the
18 DMR submission records which contain the Skokie
19 Valley NPDES permit number, yes.
20 Q. And did those sheets come from the
21 logbooks that you were able to find?
22 A. Yes, they do.
23 Q. And did you photocopy those pages from
24 logbooks?
L.A. REPORTING (312) 419-9292
49
1 A. Yes, I did.
2 Q. What years of the logbooks were you
3 able to find and are included in that exhibit?
4 A. I found 1986, 1987, 1988, 1989, 1990,
5 1991, 1992, 1993, and 1996.
6 Q. Excuse me. I asked about the exhibit.
7 Is 1986 included in your copy of the exhibit?
8 A. No, it's not.
9 Q. And for the record, these pages in
10 Complainant's Exhibit No. 8 are also lettered.
11 Could you go through the years and
12 say what the letter of each page is, please?
13 A. Okay. 1987 is 8A; 1988 is 8B; 1989 is
14 8C; 1990 is 8D; 1991 is 8E; 1992 is 8F; 1993 is 8G;
15 and 1996 is 8H.
16 Q. Thank you.
17 You mentioned earlier that Skokie
18 Valley Asphalt's NPDES permit became effective in
19 May of 1986, correct?
20 A. Yes.
21 Q. Do you have any records of which DMRs
22 Skokie Valley Asphalt submitted in 1986?
23 A. There's no record of submissions of
24 DMRs in 1986.
L.A. REPORTING (312) 419-9292
50
1 Q. Which DMRs did Skokie Valley Asphalt
2 submit in 1987?
3 A. There's no DMR submission records for
4 the -- submissions by Skokie Valley in 1987.
5 Q. Can you describe for the Board how you
6 are using Complainant's Exhibit 8A in your answer to
7 that question?
8 A. Okay. I'm finding the entry for
9 Skokie Valley Asphalt Company. There are places on
10 the sheet labeled 01 through 12 where they represent
11 months and in those places we log the date that the
12 DMR was received for that month in the DMR
13 submission record.
14 Q. And at least on Complainant's
15 Exhibit 8A, the Skokie Valley Asphalt name is
16 approximately halfway down the page, would that be
17 correct?
18 A. That's correct.
19 Q. And there's also a number to the left
20 of Skokie Valley Asphalt. What does that number
21 represent?
22 A. That number represents the NPDES
23 permit number for Skokie Valley.
24 Q. Did Skokie Valley Asphalt submit any
L.A. REPORTING (312) 419-9292
51
1 DMRs in 1988?
2 MR. JAWGIEL: I'm just going to
3 object. Is it according to this record that
4 he's basing his opinion on I assume? Form of
5 the question is my objection.
6 HEARING OFFICER SUDMAN: What's your
7 objection?
8 MR. JAWGIEL: My objection is form of
9 the question.
10 HEARING OFFICER SUDMAN: Would you
11 like to rephrase the question, Mr. Cohen?
12 MR. JAWGIEL: I assume it's based on
13 these reports.
14 HEARING OFFICER SUDMAN: I would
15 assume as well, but would you like to
16 clarify?
17 BY MR. COHEN:
18 Q. Referring to Complainant's
19 Exhibit No. 8B, did the Illinois EPA have any record
20 of Skokie Valley Asphalt submitting any DMRs in
21 1988?
22 A. The records show that they submitted
23 the November and December DMRs in 1988.
24 Q. Just those two?
L.A. REPORTING (312) 419-9292
52
1 A. Yes.
2 Q. According to Complainant's Exhibit 8C,
3 in 1989 did Skokie Valley Asphalt fail to submit any
4 of their monthly DMRs?
5 MR. JAWGIEL: Your Honor, I'm going
6 to object. This is not germane to the issues
7 that are in the complaint. This is not one
8 of the issues that was brought before you
9 here today.
10 HEARING OFFICER SUDMAN: Would you
11 care to respond to that, Mr. Cohen?
12 MR. COHEN: I believe Count III.
13 HEARING OFFICER SUDMAN: I'm going to
14 overrule that objection.
15 THE WITNESS: The record shows that
16 DMRs were not received for April, June,
17 August, September, October, November or
18 December of 1989.
19 BY MR. COHEN:
20 Q. According to the Complainant's
21 Exhibit 8D, in 1999 did Skokie Valley Asphalt fail
22 to submit any of their monthly DMRs?
23 A. There's no record for a September 1990
24 DMR for Skokie Valley.
L.A. REPORTING (312) 419-9292
53
1 Q. And according to Complainant's
2 Exhibit 8F, in 1992 did Skokie Valley Asphalt fail
3 to submit any of their monthly DMRs?
4 A. There's no record of receiving the
5 July 1992 DMR from Skokie Valley Asphalt.
6 Q. Referring back to Complainant's
7 Exhibit No. 1, Skokie Valley Asphalt's NPDES permit,
8 are there concentration limits listed in the permit
9 for total suspended solids?
10 MR. JAWGIEL: Your Honor, I'm going
11 to object. That goes beyond the scope of his
12 213 disclosures.
13 HEARING OFFICER SUDMAN: Overruled.
14 THE WITNESS: Could you repeat?
15 BY MR. COHEN:
16 Q. According to their NPDES permit, are
17 there concentration limits listed in the permit for
18 total suspended solids?
19 A. Yes, there are.
20 Q. What are the concentration limits?
21 A. It's 15 milligrams per liter as a
22 30-day average and 30 milligrams per liter as a
23 daily maximum.
24 Q. Directing your attention to
L.A. REPORTING (312) 419-9292
54
1 Complainant's Exhibit No. 9, do you recognize that
2 document?
3 A. It's the August 1991 DMR for Skokie
4 Valley Asphalt Company.
5 Q. And who is that signed and certified
6 by?
7 A. Richard J. Frederick, vice president
8 of Skokie Valley Asphalt Company.
9 Q. And what does Skokie Valley Asphalt
10 Company report as their 30-day average concentration
11 for total suspended solids?
12 A. Fifty-five milligrams per liter.
13 Q. And what does Skokie Valley Asphalt
14 Company report as their daily maximum concentration
15 for total suspended solids?
16 A. Fifty-five milligrams per liter.
17 Q. Directing your attention to
18 Complainant's Exhibit No. 10, do you recognize that
19 document?
20 A. It's the September 1991 discharge
21 monitoring report form for Skokie Valley Asphalt
22 Company.
23 Q. Who signed and certified that
24 document?
L.A. REPORTING (312) 419-9292
55
1 A. Richard J. Frederick, vice president
2 of Skokie Valley Asphalt.
3 Q. What does Skokie Valley Asphalt
4 Company report as their 30-day average concentration
5 for total suspended solids?
6 A. Twenty-five milligrams per liter.
7 Q. Directing your attention to
8 Complainant's Exhibit No. 11, do you recognize that
9 document?
10 A. It's the October 1991 discharge
11 monitoring report form for Skokie Valley Asphalt
12 Company.
13 Q. What does Skokie Valley Asphalt
14 Company report as their 30-day average for total
15 suspended solids?
16 A. Forty-one milligrams per liter.
17 Q. What does Skokie Valley Asphalt
18 Company report as their daily maximum for total
19 suspended solids?
20 A. Forty-one milligrams per liter.
21 Q. Complainant's Exhibit No. 12, do you
22 recognize that?
23 A. It's the February 1992 discharge
24 monitoring report form for Skokie Valley Asphalt
L.A. REPORTING (312) 419-9292
56
1 Company.
2 Q. What does Skokie Valley Asphalt
3 Company report as their 30-day average for total
4 suspended solids?
5 A. Eighteen milligrams per liter.
6 Q. Complainant's Exhibit No. 13, do you
7 recognize that?
8 A. It's the November 1992 discharge
9 monitoring report form for Skokie Valley Asphalt
10 Company.
11 Q. What does Skokie Valley Asphalt report
12 as their 30-day average concentration for total
13 suspended solids?
14 A. Twenty-two milligrams two per liter.
15 Q. Complainant's Exhibit No. 14, do you
16 recognize that?
17 A. It's the December 1992 discharge
18 monitoring report form for Skokie Valley Asphalt
19 Company.
20 Q. What does Skokie Valley Asphalt
21 Company report as their 30-day average for total
22 suspended solids?
23 A. Twenty-four milligrams per liter.
24 Q. Complainant's Exhibit No. 15, what is
L.A. REPORTING (312) 419-9292
57
1 that?
2 A. It's the May 1993 discharge monitoring
3 report form for Skokie Valley Asphalt Company.
4 Q. What does Skokie Valley Asphalt report
5 as their 30-day average for total suspended solids?
6 A. Twenty-four milligrams per liter.
7 Q. Complainant's Exhibit No. 16, what is
8 that?
9 A. This is a discharge monitoring report
10 form for June 1993.
11 Q. What does Skokie Valley report as
12 their 30-day average for total suspended solids?
13 A. Thirty-five milligrams per liter.
14 Q. And what does Skokie Valley Asphalt
15 Company report as their daily maximum concentration
16 for total suspended solids?
17 A. Thirty-five milligrams per liter.
18 Q. Complainant's Exhibit No. 17, what is
19 that?
20 A. It's the April 1995 discharge
21 monitoring report form for Skokie Valley Asphalt
22 Company.
23 Q. What does Skokie Valley Asphalt report
24 as their 30-day average concentration for total
L.A. REPORTING (312) 419-9292
58
1 suspended solids?
2 A. 126 milligrams per liter.
3 Q. And what does Skokie Valley Asphalt
4 report as their daily maximum concentration for
5 total suspended solids?
6 A. 126 milligrams per liter.
7 Q. Mr. Garretson, are all the
8 concentrations Skokie Valley Asphalt reported for
9 total suspended solid concentrations in
10 Complainant's Exhibit Nos. 9 through 17 that I just
11 asked you to read in excess of the concentrations
12 allowed in Skokie Valley Asphalt's NPDES permit?
13 MR. JAWGIEL: Your Honor, I'm going to
14 object as far as a legal conclusion.
15 HEARING OFFICER SUDMAN: I'll allow
16 him to answer to the extent that he's able.
17 THE WITNESS: Yes, they are
18 violations.
19 BY MR. COHEN:
20 Q. And with regard to Complainant's
21 Exhibit Nos. 1 through 6 and 8 through 17, are all
22 those records kept in the ordinary course of
23 Illinois EPA business?
24 A. Yes, they are.
L.A. REPORTING (312) 419-9292
59
1 Q. And are all those exhibits true and
2 correct copies of the Illinois EPA records?
3 A. Yes, they are.
4 MR. COHEN: May I have one moment?
5 HEARING OFFICER SUDMAN: Okay.
6 MR. COHEN: Just for clarity, I just
7 want to straighten out -- I think I misspoke
8 in my last couple of questions.
9 HEARING OFFICER SUDMAN: Okay.
10 BY MR. COHEN:
11 Q. Mr. Garretson, with regard to
12 Complainant's Exhibits 1 through 6 and 8 through 17,
13 are those records kept in the ordinary course of
14 Illinois EPA business?
15 A. 1 through 6 and -- I'm sorry?
16 Q. 8 through 17.
17 A. Yes, they are.
18 Q. And are those true and correct copies
19 of those records?
20 A. Yes, they are.
21 MR. JAWGIEL: Your Honor, if I may,
22 with respect to Count III, according to the
23 State, they say that this information is
24 relevant. Count III does not address the
L.A. REPORTING (312) 419-9292
60
1 missing DMR. Count III addresses that levels
2 were reported inaccurately. I can show you
3 my copy to make it convenient for you, but
4 the information is not relevant.
5 HEARING OFFICER SUDMAN: I was under
6 the impression Count III did also include
7 some missing reports but --
8 MR. JAWGIEL: Some, but not all of
9 those dates that they were going through.
10 HEARING OFFICER SUDMAN: Would you
11 like to respond to that Mr. Cohen?
12 MR. COHEN: Yes, there are missing
13 reports and they are alleged in that count.
14 MR. JAWGIEL: That is not accurate.
15 The missing reports are not alleged in that
16 count. What's alleged in paragraph 21, and I
17 think is particularly what I'm referring to,
18 is that's the count which addresses the
19 substance of that particular count and it has
20 nothing to do with missing reports.
21 MR. COHEN: Paragraph 18 from the
22 second amended complaint: Since November
23 1988, respondents failed to submit DMRs, et
24 cetera.
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1 HEARING OFFICER SUDMAN: Does it
2 specify dates?
3 MR. COHEN: Yes, it does.
4 Judge, I did have one final
5 question to clarify --
6 HEARING OFFICER SUDMAN: Oh, yes.
7 MR. JAWGIEL: Your Honor, if I can
8 have a ruling on my objection with respect to
9 that information once you have had an
10 opportunity, I would appreciate it.
11 HEARING OFFICER SUDMAN: And your
12 objection was to the evidence pertaining to
13 dates not enumerated in the complaint?
14 MR. JAWGIEL: Correct.
15 HEARING OFFICER SUDMAN: Well, is
16 there anything else this evidence goes
17 towards? Are you asserting that this
18 evidence is relevant to other allegations?
19 MR. COHEN: Well, I believe it's a
20 pattern that we're going to see throughout
21 this trial, yes. But as far as the
22 particular dates go, we're certainly allowed
23 to conform the complaint to the evidence
24 that's presented.
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1 HEARING OFFICER SUDMAN: Well, it
2 says --
3 MR. JAWGIEL: Your Honor, if I may
4 just respond very briefly --
5 HEARING OFFICER SUDMAN: Yes.
6 MR. JAWGIEL: -- a pattern has no
7 relevance in this particular cause of action.
8 It's not one of the elements necessarily that
9 needs to be presented with respect to this
10 particular issue, on the reporting issue.
11 HEARING OFFICER SUDMAN: Well,
12 Count III, paragraph 18 says: Since November
13 1988, respondents failed to submit DMRs to
14 the Illinois EPA for the following months:
15 November 1988, April '89, June '89, August
16 '89, October '89, November '89, December '89,
17 and July of '92.
18 MR. JAWGIEL: And counsel went into
19 '86 and '87. He went into dates that were
20 beyond this paragraph.
21 HEARING OFFICER SUDMAN: Well, but
22 then it also -- I mean, are those dates
23 relevant to any other allegations in this
24 complaint, Mr. Cohen?
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1 MR. COHEN: Yes. I think it's going
2 to show a pattern of noncompliance by the
3 respondents.
4 HEARING OFFICER SUDMAN: Towards which
5 count or which allegation specifically?
6 MR. COHEN: Well, I think you'll see
7 it come up in the water pollution count and
8 we do allege failure to comply with reporting
9 requirements. We are allowed to conform the
10 complaint at any time to match the evidence,
11 so I do believe that evidence is relevant and
12 certainly admissible.
13 MR. JAWGIEL: Your Honor, the water
14 pollution count has nothing to do with this
15 particular reporting because they're talking
16 about oily substances and they're talking
17 apples and oranges. This is typical of this
18 particular case; it's done by smoke in
19 mirrors.
20 HEARING OFFICER SUDMAN: Well, here's
21 what I'm going to do since you don't point me
22 to a particular allegation in the complaint:
23 I'm going to certainly allow the evidence
24 with respect to the dates specified in the
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1 complaint. The other evidence we'll do as an
2 offer of proof.
3 Now, what was your question on
4 clarification?
5 MR. COHEN: I'm going to leave it
6 alone, your Honor.
7 HEARING OFFICER SUDMAN: Okay.
8 Mr. Jawgiel, your witness?
9 MR. JAWGIEL: Thank you, your Honor.
10 C R O S S - E X A M I N A T I O N
11 BY MR. JAWGIEL:
12 Q. Good morning, sir.
13 A. Good morning.
14 Q. I apologize if I have you jump around
15 from place to place, but I'm trying to cover certain
16 areas that may have been covered.
17 You talked a little about the
18 logging procedures that were performed back in the
19 late 1980s, early 1990s and I think you indicated it
20 was done by hand; is that correct?
21 A. That's correct.
22 Q. Were there any quality assurance
23 procedures instituted by your department at that
24 point in time to determine whether or not the people
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1 who were actually logging the information were doing
2 so correctly?
3 A. I'm not aware of any formal quality
4 assurance procedures.
5 Q. So as you sit here today, you don't
6 know whether or not the logs that were presented in
7 here as exhibits, I believe, 8A through 8H are true
8 and accurate representations of the actual reports,
9 the DMR reports, submitted by anybody listed on
10 those pages; is that correct?
11 A. Would you repeat the question?
12 Q. Sure.
13 As you sit here today, you would
14 have no opinion whether or not the information
15 contained in State's Exhibits 8A through 8H are true
16 and accurate with respect to the information
17 contained therein?
18 A. I believe they are correct.
19 Q. Well, have you ever logged reports
20 during that period of time of 1987 through 1996
21 yourself, sir?
22 A. No.
23 Q. And you never checked to determine
24 whether or not all the information contained on
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1 these forms are accurate by going back into the
2 files of all the companies listed here and
3 determining whether or not the information is
4 accurate; is that correct?
5 A. That's correct.
6 Q. So as you sit here today, you really
7 have no basis other than you think that your
8 procedures were followed; is that correct?
9 A. Well, I know the log person was
10 trained in the -- you know, how to do it.
11 Q. Well, you also admitted I think on the
12 stand that there's human error as a factor?
13 A. That's true.
14 Q. And human error can mean that certain
15 reports weren't reported; is that correct?
16 A. It's possible.
17 Q. In your 24 years in the compliance
18 department, have you ever been involved in a
19 situation where a report was mislogged?
20 A. I don't recall of any specific --
21 well, I take that back. It does happen.
22 Q. Okay. And you indicated you're in the
23 compliance departments, but is it your department's
24 responsibility to review the DMRs?
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1 A. Yes.
2 Q. And who in the department actually
3 reviews the DMRs?
4 A. The compliance specialist in that
5 department as well as the people in the field
6 operations section.
7 Q. Okay. Who was the compliance
8 specialist from the department during the years of
9 1987 through 1996?
10 A. I believe that was Jan Hopper.
11 Q. And what duties did Ms. Hopper have
12 with respect to reviewing the DMRs?
13 A. Well, she would look at the DMRs,
14 compare it to the NPDES permit to determine if
15 violations existed.
16 Q. Okay. And I take it if she didn't
17 receive a DMR report for a period of time that was
18 listed on the permit that she was supposed to do
19 something; is that correct?
20 A. Could you repeat the question?
21 Q. Sure. I'll rephrase it.
22 If she did not receive a DMR
23 report from somebody who had an NPDES permit, she
24 was supposed to report that to somebody; is that
L.A. REPORTING (312) 419-9292
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1 correct?
2 A. Not in all cases.
3 Q. Well, how about in most cases?
4 A. Well, if it appeared to be a pattern
5 of nonsubmission, then compliance inquiry letters
6 were preferred.
7 Q. Okay. Do you have any compliance
8 inquiry letters that were sent to Skokie Valley with
9 you here today?
10 A. I don't, no.
11 Q. Okay. So as we sit here today, you
12 don't think that there was a pattern of
13 noncompliance because you don't have any
14 documentation that your department took any steps to
15 move Skokie Valley to comply; is that correct?
16 MR. COHEN: Object to the form of the
17 question.
18 HEARING OFFICER SUDMAN: I think it's
19 okay. He can answer. It was kind of a
20 compound question. Could you break that up a
21 little bit?
22 MR. JAWGIEL: Sure.
23 BY MR. JAWGIEL:
24 Q. You reviewed the Skokie Valley file
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1 before coming here today, did you not?
2 A. Yes, I did.
3 Q. And you took out all the information
4 out of the Skokie Valley file that you thought was
5 pertinent to this case and gave it over to the
6 State; is that correct?
7 A. No.
8 Q. Well, did you allow the State to
9 review the file?
10 A. Yes.
11 Q. And did you in your review of the file
12 make copies for the State yourself?
13 A. Yes, of the DMR submission records.
14 Q. Okay. Did the State ask you at any
15 point in time to give them the compliance letters --
16 A. No.
17 Q. -- that you had referred to?
18 A. No.
19 Q. With respect to the permit itself,
20 sir, I believe it's Exhibit No. 1 -- if you need to
21 refer to that, please take a look at it. We're not
22 going to test your memory.
23 With respect to the permit itself,
24 the permittee in this case is Skokie Valley; isn't
L.A. REPORTING (312) 419-9292
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1 that correct?
2 A. Skokie Valley Asphalt Company,
3 Incorporated.
4 Q. So the permittee, Skokie Valley
5 Asphalt Company, Incorporated, is the one who holds
6 the permit, is that correct, in your opinion?
7 A. That's correct.
8 Q. Skokie Valley Asphalt Company, Inc. --
9 if I just call them Skokie Valley, you know what
10 we're talking about?
11 A. Yes.
12 Q. Okay. With respect to Skokie Valley,
13 it's Skokie Valley who's responsible for reporting
14 the DMRs; is that correct?
15 A. That's correct.
16 Q. The permittee is not Edwin or
17 Larry Frederick, is it?
18 A. The permittee is Skokie Valley Asphalt
19 Company.
20 Q. Okay. So with respect to -- we'll
21 call him Larry Frederick, he goes by Larry --
22 Mr. Larry Frederick wouldn't have responsibilities
23 individually for reporting the DMRs, would he?
24 A. Well, the DMRs do contain a
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1 certification that must be signed by an individual
2 such as them as to the accuracy of the DMRs and the
3 information contained in there.
4 Q. But it's not the responsibility of the
5 individual under the permit who signs the DMR to
6 submit the DMR, it's the permittee's responsibility;
7 isn't that correct?
8 A. Whoever signs the DMR has to make sure
9 that whatever is contained in the DMR is correct.
10 Q. Well, you're kind of putting the cart
11 before the horse, sir. Before we even have somebody
12 certifying the content of the DMR, there's a
13 requirement that a DMR be submitted under the
14 permit; is that correct?
15 A. That's correct.
16 Q. And based on your 24 years of
17 knowledge of the permit, the entity responsible for
18 even submitting the DMR is Skokie Valley in this
19 case; is that correct?
20 A. Yes, a representative of Skokie Valley
21 has to do the submissions.
22 Q. Well, but the responsible entity is
23 Skokie Valley to submit the DMRs whether it's signed
24 by Larry Frederick or signed by Richard Frederick or
L.A. REPORTING (312) 419-9292
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1 signed by someone else who is in that position, it
2 doesn't matter; is that correct?
3 A. Well, ultimately you would think an
4 individual has to submit the discharge monitoring
5 report form.
6 Q. Well, let me ask you this question
7 since you're familiar with the permit: Where in the
8 permit does it make any individual responsible who
9 is not the named permittee for submitting the DMR?
10 A. Could you repeat the question?
11 Q. Sure.
12 Where in the language of the
13 permit that was issued to Skokie Valley is there any
14 language which makes an individual responsible who
15 is not the permittee, the named permittee, for
16 filing or submitting the DMR?
17 A. Can I take a look at the --
18 Q. Sure. Go right ahead.
19 A. Okay. I'd like to refer you to
20 item 11 of special conditions attachment H.
21 Q. H did you say, sir?
22 A. Attachment H, 11B.
23 MR. JAWGIEL: May I approach the
24 witness?
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1 HEARING OFFICER SUDMAN: Sure.
2 THE WITNESS: Can I read from this?
3 BY MR. JAWGIEL:
4 Q. Sure.
5 A. It says: All reports required by
6 permits or other information requested by the agency
7 shall be signed by a person described in paragraph A
8 or by a duly authorized representative of that
9 person.
10 The person is a duly authorized
11 representative only if the authorization is made in
12 writing by person described in paragraph A and the
13 authorization specifies either an individual or
14 position responsible for the overall operation of
15 the facility from which the discharge originates
16 such as the plant manager, superintendent or -- and
17 that's where my copy stops.
18 Q. Okay. Now, maybe you're
19 misunderstanding my question. My question is not to
20 who has to authorize the DMRs. I think that's what
21 you're addressing with respect to this paragraph.
22 My question to you is -- before we
23 even get to the point of having to submit a DMR,
24 there's a requirement in the permit that a DMR be
L.A. REPORTING (312) 419-9292
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1 submitted, period, not that it be authenticated but
2 that it actually be submitted. Where in the permit
3 language does it require anyone other than the named
4 permittee to have to submit a DMR?
5 A. The NPDES permit requires a permittee
6 to submit the DMR.
7 Q. Okay. The named permittee; is that
8 correct?
9 A. It doesn't say named permittee but --
10 Q. But that's your understanding?
11 A. It says that the permittee shall
12 submit the discharge monitoring report form.
13 Q. Okay. Now, let's talk about the
14 discharge monitoring reports that are signed. Let's
15 look at Exhibit 3 just for an example. You'll see
16 that it says here in the certification between
17 identifying Richard Frederick, vice president, and
18 the date and then a signature area that: I certify
19 I am familiar with the information contained in this
20 report and that to the best of my knowledge and
21 belief such information is true, complete and
22 accurate. Is that your understanding of what the
23 certifications say, sir?
24 A. That's what it says.
L.A. REPORTING (312) 419-9292
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1 Q. The certification doesn't require the
2 signator to verify the information, it just asked
3 them to report to the best of their knowledge; isn't
4 that correct?
5 A. That's correct.
6 Q. Okay. Sir, let's talk a little bit
7 more about what we see in these DMR reports. I
8 think the reports you identified during the State's
9 case -- we went through a number of exhibits which
10 show that there was a higher level than permitted by
11 the permit itself and that's going to be the area
12 that I'm going to talk about just to get you up to
13 where I am with these questions.
14 You had indicated earlier there
15 are certain factors that can affect the levels that
16 are in the DMRs, weather can be one, technique in
17 how you take the sampling. Other factors can be
18 involved as well; is that correct?
19 A. That's correct.
20 Q. What are some of those other factors
21 that affected the DMR level reporting?
22 A. Testing procedures.
23 Q. Okay. And what else other than
24 testing procedures, weather, what else can affect
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1 those levels?
2 A. I'm not really sure.
3 Q. Have you ever worked in the field,
4 sir?
5 A. Yes, I have.
6 Q. Okay. So you've had some experience
7 with conditions that are in the field; is that
8 correct?
9 A. I've never worked in the field
10 operations section, no.
11 Q. Okay. So you've never been out in the
12 field to determine whether or not there may be other
13 factors that are actually in a site that could
14 affect the levels; is that correct?
15 A. Not while I was working at the EPA.
16 Q. Okay. Have you ever had that
17 experience?
18 A. Prior to becoming -- or prior to
19 working with the Illinois EPA, I worked at an
20 industrial waste farm treatment plant in Champaign,
21 Illinois.
22 Q. Okay. But that would be the limit of
23 your experience is a waste treatment plant in
24 Champaign, Illinois?
L.A. REPORTING (312) 419-9292
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1 A. Yes.
2 Q. You haven't worked in areas where
3 there is farmland necessarily adjacent to an asphalt
4 plant or anything along those lines; is that
5 correct?
6 A. That's correct.
7 Q. So as you sit here today, you wouldn't
8 know what factors may or may not affect the DMRs
9 submitted by Skokie Valley because you've never been
10 out in the field to decide whether or not there may
11 be other contributing factors other than weather and
12 the way it's tested; is that correct?
13 A. That's correct.
14 Q. Now, again, referring you back to
15 Exhibit No. 3, you'll see that there's also a note
16 in the comment section. And the DMR allows for
17 comments to explain what's in the DMR; is that
18 correct?
19 A. That's correct.
20 Q. And the whole purpose of that section
21 is so that the people who are testing can advise
22 maybe of an unusual situation that may affect the
23 reporting or whatever they want to put in there; is
24 that correct?
L.A. REPORTING (312) 419-9292
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1 A. That's correct.
2 Q. And you can see that there's a comment
3 that says: High content of total suspended solids
4 was rated very high due to amount of rain that we
5 had because of runoff of adjoining farmland field --
6 and so on and so forth -- that adjoins our property.
7 Do you see that comment?
8 A. Yes, I do.
9 Q. And that would be a situation that
10 would affect or elevate the levels reported in the
11 DMR; is that correct?
12 A. I suppose so.
13 Q. So looking at this report in and of
14 itself, would that from your experience in your
15 department raise any questions?
16 MR. COHEN: Object to the form of that
17 question.
18 MR. JAWGIEL: Should I rephrase it?
19 HEARING OFFICER SUDMAN: Yeah, please.
20 MR. JAWGIEL: Sure. No problem.
21 BY MR. JAWGIEL:
22 Q. With respect to Exhibit 3, as we look
23 at it in total, based on your experience in your
24 department, would what we see in Exhibit No. 3 cause
L.A. REPORTING (312) 419-9292
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1 your department to take any remedial action?
2 MR. COHEN: Objection to the form of
3 the question and the use of the word
4 remedial.
5 HEARING OFFICER SUDMAN: I think he
6 can answer it. If you don't know, you can
7 say you don't know.
8 THE WITNESS: Well, the NPDES permit
9 doesn't say that limits only need to be met
10 when there's not any rainfall.
11 BY MR. JAWGIEL:
12 Q. That wasn't my question, though, sir?
13 MR. JAWGIEL: And I ask that his
14 answer be struck from the record as
15 nonresponsive.
16 HEARING OFFICER SUDMAN: I agree.
17 Please answer the question. Do you need him
18 to ask again?
19 THE WITNESS: That would be helpful.
20 MR. JAWGIEL: Sure.
21 BY MR. JAWGIEL:
22 Q. At any point in time, if you don't
23 understand a question I ask, which may happen again,
24 just let me know.
L.A. REPORTING (312) 419-9292
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1 With respect to Exhibit No. 3, as
2 we see the report's data information in conjunction
3 with the comment section, based on your 24 years of
4 experience with this department would this report in
5 and of itself merit any sort of action on your
6 department's behalf?
7 A. One report on its own would not
8 usually.
9 Q. Okay. Would one report on its own
10 without the comment section that we see here in
11 Exhibit No. 3 merit any sort of action on the part
12 of your department at all?
13 A. Usually not.
14 Q. Would two reports month to month, back
15 to back merit any sort of action on the part of your
16 department in it's course of handling these DMRs?
17 A. It's possible.
18 Q. Who is that left up to to decide?
19 A. The compliance individuals that are
20 reviewing the DMRs.
21 Q. So I think it was Ms. -- what was her
22 name? I apologize.
23 A. Ms. Hopper.
24 Q. -- Ms. Hopper and the individual who
L.A. REPORTING (312) 419-9292
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1 was in the field; is that correct?
2 A. It's possible.
3 Q. And what, if anything, would
4 Ms. Hopper do if there were two reports
5 consecutively that showed high levels -- higher than
6 permitted by the permit?
7 A. It could consider the possibility of
8 sending a compliance inquiry letter.
9 Q. And so we don't have a compliance
10 inquiry letter here today, do we?
11 A. Not that I'm aware of.
12 Q. So based on what we have here today
13 and based on your knowledge, nothing was done by the
14 department with respect to Exhibit
15 No. 3; is that right?
16 A. That's correct.
17 Q. Was any action taken with respect to
18 Exhibit No. 9 by your department?
19 A. I don't know.
20 Q. And as a matter of course, your
21 department would have reviewed Number 9, not only
22 Ms. Hopper, but somebody else in the field as well;
23 is that right?
24 A. Yes.
L.A. REPORTING (312) 419-9292
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1 Q. And based on the knowledge you have
2 here that you don't know whether anything was done
3 with respect to this particular report, you would
4 have no knowledge that this
5 report -- well, strike that question.
6 Was there any action taken by your
7 department with respect to Exhibit No. 10?
8 A. I don't know.
9 Q. Was there any action taken by your
10 department with respect to Exhibit No. 11?
11 A. I don't know.
12 Q. Was there any action taken by your
13 department with respect to Exhibit No. 12?
14 A. I don't know.
15 Q. Was there any action taken on behalf
16 of your department with respect to Exhibit No. 13?
17 A. I don't know.
18 Q. Was there any action taken on behalf
19 of your department with respect to
20 Exhibit 14?
21 A. I don't know.
22 Q. Was there any action taken on behalf
23 of your department with respect to
24 Exhibit 15?
L.A. REPORTING (312) 419-9292
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1 A. I don't know.
2 Q. Was there any action taken on behalf
3 of your department with respect to
4 Exhibit 16?
5 A. I don't know.
6 Q. Is it your understanding, sir, you're
7 here to testify as the representative of the
8 compliance department?
9 A. Yes, that's true.
10 Q. Who in your department other than
11 yourself would know whether or not any action was
12 taken by your department other than what we have
13 here today regarding Exhibits 9 through 17?
14 A. The compliance individual that would
15 have prepared any actions.
16 Q. And they would have reported to you,
17 sir?
18 A. At that time, they would have reported
19 to Roger Callaway.
20 Q. The compliance individuals we talked
21 about, Ms. Hopper, the other individual would have
22 been Mr. Kallis?
23 A. No. Roger Callaway.
24 Q. No, the other individual who would
L.A. REPORTING (312) 419-9292
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1 have been in the field, was that
2 Mr. Callaway?
3 A. No.
4 Q. Okay. The individual who would have
5 been in the field with respect to the time period of
6 Exhibit Nos. 9 through 17 --
7 A. I'm not sure who was in the field
8 responsible for it at that time.
9 Q. I take it, though, based on the
10 procedures used by your department, it's your
11 understanding that each of these reports, Exhibits 9
12 through 17, were examined by your department?
13 A. Yes, that's true.
14 Q. When did you first become aware of
15 these particular levels reported in Exhibits 9
16 through 17, would it have been when you prepared
17 documentation for this case?
18 A. That's correct.
19 Q. Do you know why Skokie Valley was
20 required to have the NPDES permit?
21 A. No, I don't.
22 Q. Isn't the whole purpose behind having
23 Ms. Hopper review the DMRs is so that early
24 compliance can be adhered to; is that correct? Do
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1 you understand the question?
2 A. Yes, I do.
3 Q. Okay.
4 A. Yes, that would be a benefit.
5 Q. The whole idea behind it is that
6 Ms. Hopper will note something, send out a letter,
7 try to gain compliance as soon as possible; isn't
8 that correct?
9 MR. COHEN: Objection. That question
10 calls for speculation on the actions of what
11 Ms. Hopper might do after her review.
12 MR. JAWGIEL: He's the head of the
13 department.
14 HEARING OFFICER SUDMAN: He can answer
15 if he knows what the procedures are
16 generally.
17 THE WITNESS: Well, when we review
18 discharge monitoring report forms, we look
19 for a significant amount of compliance.
20 BY MR. COHEN:
21 Q. And how frequently do you review
22 discharge monitoring reports or NPDES permit
23 reports?
24 A. They are reviewed monthly as they come
L.A. REPORTING (312) 419-9292
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1 in.
2 Q. Okay. So monthly you're reviewing
3 reports for compliance; is that correct?
4 A. Yes.
5 Q. And how many reports does your
6 department receive, let's say, back in 1986? How
7 many reports do they receive, DMR reports, in any
8 given month?
9 A. I don't know the exact number.
10 Q. Would you say thousands?
11 A. I would say it would be over 2000 a
12 month.
13 Q. And how many people do you have
14 working on reviewing the DMR reports other than
15 Ms. Hopper?
16 A. I don't know at that time.
17 Q. I take it -- you identified one
18 individual who logs the reports. Was it only one
19 person who would log over 2000 reports a month?
20 A. That's correct.
21 Q. Now, how many field representatives
22 did you have basically in the late '80s, early '90s?
23 A. I don't know.
24 Q. Getting back to what we were talking
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1 about, isn't it the policy and procedures as you
2 understand them of your department -- the whole
3 purpose behind reviewing the DMRs is to send out a
4 compliance letter if the DMR is not in compliance so
5 that you can gain compliance from the permittee as
6 soon as possible?
7 A. That's correct.
8 Q. When did you gather these reports for
9 the State?
10 A. Within the last month or so.
11 Q. Would it be fair to say that your
12 department wasn't too concerned about the compliance
13 of Skokie Valley with respect to these reports until
14 this case?
15 MR. COHEN: Objection, augmentative.
16 HEARING OFFICER SUDMAN: Sustained.
17 BY MR. JAWGIEL:
18 Q. You said it was unusual for there to
19 be identical information on a DMR from a permittee;
20 is that correct?
21 A. Yes.
22 Q. Have you reviewed the series of DMRs
23 submitted by anyone else in preparation for your
24 testimony today other than Skokie Valley?
L.A. REPORTING (312) 419-9292
88
1 A. Could you repeat the question, please?
2 Q. Sure.
3 In preparation for your testimony
4 here today, have you reviewed the series of DMRs
5 submitted by any other company other than Skokie
6 Valley?
7 A. Yes, in the normal course of work.
8 Q. Have you literally reviewed all the
9 reports and determined whether or not they're
10 identical?
11 A. No, not all of the reports, but I am
12 familiar with discharge monitoring reports.
13 Q. Well, my question to you is then, sir,
14 you indicated it is unusual but have you -- well,
15 let me ask you this question: Is it part of your
16 responsibility in the position you hold in your
17 department to review reports to determine whether or
18 not the data contained therein is identical to any
19 other DMR report submitted by that particular
20 company?
21 A. It's not my specific responsibility.
22 Q. Is there anybody in the department who
23 has that responsibility?
24 A. Well, the individuals that review the
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1 reports would look for something like that.
2 Q. Okay. And the individual who would
3 have reviewed the reports then would have sent out a
4 compliance letter if they thought there was
5 something suspicious about the reporting if it was
6 identical; is that correct?
7 A. I'm assuming so.
8 Q. Do you know whether or not your
9 department thought that the DMRs submitted by Skokie
10 Valley with respect to the ones that had identical
11 information was suspicious?
12 A. Back in the late '80s?
13 Q. I was talking about the period of time
14 between the late '80s to the early '90s as counsel
15 has framed this period of time?
16 A. I was not aware of it at that time.
17 Q. Did you become aware of it after this
18 case for the very first time?
19 A. Yes.
20 Q. Do you have any information which
21 would lead you to believe that Larry Frederick, also
22 known as Ed Frederick, actually participated in
23 taking these samples?
24 A. I don't.
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1 Q. Do you have any information whether or
2 not Richard Frederick actually took the samples that
3 are reported in the DMR?
4 A. I don't know that either.
5 Q. Do you have any information that
6 Larry Frederick tested the samples that were
7 submitted in the DMR for Skokie Valley?
8 A. From reviewing the files, I know that
9 the samples were performed -- or the tests were
10 performed at Northshore Sanitary District.
11 Q. And outside service?
12 A. Yes.
13 Q. And are you familiar with that
14 particular service?
15 A. Just to the extent that they're also a
16 NPDES permittee.
17 Q. I take it that they also do testing
18 for a variety of companies other than Skokie Valley;
19 is that correct?
20 A. Apparently so.
21 Q. Are you aware of any attempts by
22 Skokie Valley to correct any reports that may have
23 been duplicative?
24 A. No, I'm not.
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1 Q. Did you look for that information when
2 you reviewed this file?
3 A. I did not see any reports that had
4 been corrected.
5 Q. That wasn't my question, though, sir.
6 My question was did you look for that information?
7 A. I reviewed the information in our
8 files. I did not see it.
9 Q. Did you look for information as far as
10 correcting reports -- reports being corrected or
11 communication regarding correcting or anything along
12 those lines?
13 A. No, I didn't.
14 Q. Do you have a chemical background at
15 all, sir?
16 A. No, I don't.
17 Q. What is your education?
18 A. Well, I have a bachelor of science
19 degree in environment biology.
20 Q. Okay. When did you receive that?
21 A. In 1976.
22 Q. Did you go on to an advanced degree in
23 environmental biology?
24 A. No, I didn't.
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1 Q. Have you taken any continuing
2 education courses with respect to environmental
3 biology?
4 A. No, I haven't.
5 Q. Is there any environmental impact from
6 the information -- well, strike that.
7 Would you agree with me, sir, that
8 you don't know if there was any environmental impact
9 in the levels reported in the DMRs from Exhibits
10 9 through 17?
11 A. I only know it exceeds the permit
12 limits.
13 Q. So as you sit here today, you don't
14 have an opinion that there was actually an
15 environmental impact based on the data in those
16 exhibits; is that correct?
17 A. I don't have any information about
18 that.
19 Q. If a company goes out of business, is
20 it still required to file DMRs under a permit?
21 A. It's my understanding they are until
22 the permit gets terminated.
23 Q. And how can a permit get terminated?
24 A. A letter is submitted usually to our
L.A. REPORTING (312) 419-9292
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1 permit section who processes the termination
2 request.
3 Q. Or they can allow it to expire as
4 well, is that correct, the permittee allow the
5 permit to expire?
6 A. That's my understanding, yes.
7 Q. Are you aware of any cases where
8 Skokie Valley was found guilty of filing erroneous
9 DMR reports?
10 A. No.
11 Q. Would you agree with this statement,
12 sir, that the Illinois EPA would have never brought
13 charges against Skokie Valley for failure to file
14 DMR reports if the incident at the Avon drainage
15 ditch didn't occur?
16 MR. COHEN: Objection. This witness
17 cannot testify for the Illinois EPA.
18 MR. JAWGIEL: I thought he was a
19 representative of the Illinois EPA? Maybe
20 I'm under the wrong --
21 MR. COHEN: Well, under that form of
22 the question --
23 HEARING OFFICER SUDMAN: You were
24 asking him if he could what?
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1 MR. JAWGIEL: My question was isn't it
2 true, sir, in your opinion would charges have
3 been brought against Skokie Valley for
4 failing to file DMR reports if the release at
5 the Avon ditch did not occur.
6 HEARING OFFICER SUDMAN: I really
7 don't think he's in a capacity to know that.
8 MR. JAWGIEL: Well, maybe I'll ask for
9 an offer of proof.
10 HEARING OFFICER SUDMAN: Okay. Yes.
11 Absolutely.
12 MR. JAWGIEL: May I ask some questions
13 with respect to an offer of proof?
14 HEARING OFFICER SUDMAN: Yes.
15 BY MR. JAWGIEL:
16 Q. Sir, you've certainly had
17 communications with the attorneys --
18 MR. COHEN: Excuse me. If you want to
19 make an offer of proof, you can make the
20 offer of proof. It doesn't come by way of
21 questions to the witness.
22 MR. JAWGIEL: It certainly does. An
23 offer of proof allows me to ask questions of
24 the witness to establish a foundation to
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1 bring in evidentiary material, which I will
2 later attempt to submit, based on the voir
3 dire of this particular witness outside the
4 evidence that will be submitted in this case.
5 HEARING OFFICER SUDMAN: Okay. He may
6 make it as an offer of proof.
7 MR. COHEN: Your Honor, if I may
8 finish my objection?
9 HEARING OFFICER SUDMAN: Yes.
10 MR. COHEN: The question contradicts
11 the history of this case. There was a
12 complaint filed in this case long before the
13 first amended complaint and the second
14 amended complaint. The first amended
15 complaint later adds the water pollution
16 count. I just want to state that for the
17 record.
18 HEARING OFFICER SUDMAN: Okay. You
19 may make your offer of proof.
20 MR. JAWGIEL: Thank you.
21 BY MR. JAWGIEL:
22 Q. Sir, I'm just going to ask you a
23 series of questions; this may or may not go on the
24 record. You had a series of conversations I take it
L.A. REPORTING (312) 419-9292
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1 with representatives of the State; is that correct?
2 MR. COHEN: Object to the form of the
3 question, no time frame, no content.
4 MR. JAWGIEL: I'll rephrase it.
5 HEARING OFFICER SUDMAN: Okay. Thank
6 you.
7 BY MR. JAWGIEL:
8 Q. With respect to this case that we're
9 here for today, you've had a series of conversations
10 with representatives of the State, have you not?
11 MR. COHEN: Objection again, no time
12 frame. We're talking about a time period of
13 over ten years.
14 HEARING OFFICER SUDMAN: Would you
15 like to be a little more specific?
16 MR. JAWGIEL: Sure.
17 BY MR. JAWGIEL:
18 Q. When did you have your first
19 conversation, if any conversations, with the State
20 regarding the case that we're here for today?
21 A. May I ask for a clarification? What
22 do you mean by the State?
23 Q. Well, this case is being brought by
24 the People of the State of Illinois. They have
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1 representatives who are attorneys out of the
2 Attorney General's Office and various assistants.
3 MR. COHEN: Object to the form of the
4 question. The witness works for the State of
5 Illinois.
6 MR. JAWGIEL: Well, now he is their
7 client.
8 HEARING OFFICER SUDMAN: Right. It
9 was confusing. He didn't understand who he
10 meant by the State. I think he was just
11 explaining.
12 MR. JAWGIEL: Yeah. I'm just trying
13 to clarify the State of Illinois represented
14 by the Attorney General's Office and the
15 various --
16 HEARING OFFICER SUDMAN: So the
17 Attorney General's Office basically.
18 MR. JAWGIEL: Basically.
19 THE WITNESS: A month or so ago in
20 preparation for this.
21 BY MR. JAWGIEL:
22 Q. Okay. And in preparation for this
23 case, you were the person from your understanding
24 who was going to gather information regarding the
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1 DMRs; is that correct?
2 A. Regarding the DMR submissions,
3 nonsubmissions.
4 Q. Okay. And was it your understanding
5 that based on your conversations with various
6 representatives from the Attorney General's Office
7 that the whole purpose behind this cause of action
8 was really the discharge into the Avon drainage
9 ditch in Libertyville?
10 A. No.
11 Q. Did they discuss that with you at all?
12 A. No, not at that time.
13 Q. Have they ever discussed that with
14 you?
15 A. I've been made aware of it.
16 Q. Okay. When?
17 A. Well, to review the information in the
18 files.
19 Q. Okay. But when, a month ago, two
20 months ago?
21 A. Within the last couple of weeks.
22 MR. JAWGIEL: Okay. He's only talked
23 about this for the past couple of weeks, your
24 Honor. I'm not going to go into that line of
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1 questioning.
2 HEARING OFFICER SUDMAN: Okay.
3 MR. JAWGIEL: I can't seem to --
4 obviously, this case has been around much
5 longer than a couple of weeks as we all have
6 well-labored through, so I will withdraw that
7 series of questions.
8 HEARING OFFICER SUDMAN: So we're
9 ending the --
10 MR. JAWGIEL: Right. I'll end the
11 offer as well. Thank you.
12 HEARING OFFICER SUDMAN: Okay.
13 BY MR. COHEN:
14 Q. Based on your conversations with the
15 State, is it your understanding there was some sort
16 of discharge into the Avon drainage ditch in
17 Libertyville?
18 MR. COHEN: Objection, your Honor.
19 He's asking for communications with his
20 attorney. It has no relevance to what this
21 witness is here to testify about and no
22 bearing on what he's already testified to.
23 HEARING OFFICER SUDMAN: Didn't you
24 just ask him that?
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1 MR. JAWGIEL: No. It's a different
2 question. My question now was based on your
3 conversations with the State, is it your
4 understanding that there was a release of
5 material into the Avon drainage ditch?
6 HEARING OFFICER SUDMAN: Well, I
7 thought he had already answered that?
8 MR. JAWGIEL: Well, that was in the
9 offer of proof. I'm now going back into my
10 case -- or the cross-examination and I am
11 going to put that portion of it on the
12 record.
13 HEARING OFFICER SUDMAN: You can
14 answer it.
15 THE WITNESS: I wasn't specifically
16 talking to about that.
17 BY MR. JAWGIEL:
18 Q. Do you have any understanding
19 whatsoever that there was a release of some sort of
20 material into the Avon drainage ditch in
21 Libertyville?
22 MR. COHEN: Object to the form of the
23 question, no time frame.
24 MR. JAWGIEL: That lead to this case.
L.A. REPORTING (312) 419-9292
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1 HEARING OFFICER SUDMAN: What was the
2 question? Could you repeat the question?
3 MR. JAWGIEL: Sure. I'll repeat the
4 question.
5 BY MR. JAWGIEL:
6 Q. Is it your understanding, sir, that
7 one of the complaints of the State is that there was
8 a release into the Avon drainage ditch in
9 Libertyville? Do you have that understanding as you
10 sit here today?
11 A. I do now, but I didn't at the time I
12 was preparing for the DMR submission records.
13 Q. But that's not my question. You do
14 now? When did you first gain that understanding?
15 A. Probably about a week ago when I was
16 reviewing files in preparation of this.
17 Q. Fair enough.
18 And based on your review of the
19 DMRs and knowing that there was a release into the
20 Avon drainage ditch, would the failure to file the
21 DMRs by Skokie Valley as alleged by the State have
22 caused the Avon drainage ditch discharge in your
23 opinion?
24 MR. COHEN: Objection, calls for
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1 speculation.
2 HEARING OFFICER SUDMAN: Sustained.
3 BY MR. JAWGIEL:
4 Q. Well, in your review of the DMRs --
5 and I think you consider yourself an expert in
6 reviewing DMRs; is that correct?
7 A. Yes.
8 Q. Okay. And being an expert in
9 reviewing DMRs and after reviewing DMRs that were
10 submitted by Skokie Valley and the ones that weren't
11 submitted, obviously, you couldn't review those, but
12 in reviewing the file of Skokie Valley in
13 preparation for your testimony here today, is there
14 anything in the DMR reports to you that would link
15 what was discharged in the Avon drainage ditch to
16 anything in the reports?
17 MR. COHEN: Object to the form of the
18 question. I certainly don't understand it.
19 HEARING OFFICER SUDMAN: I'm going to
20 allow it, but you might want to --
21 MR. JAWGIEL: Well, let's see if he
22 understands it. If he doesn't --
23 HEARING OFFICER SUDMAN: Did you get
24 that -- in your professional opinion he's
L.A. REPORTING (312) 419-9292
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1 asking you.
2 THE WITNESS: I'm not aware of the
3 connection.
4 HEARING OFFICER SUDMAN: Okay.
5 BY MR. JAWGIEL:
6 Q. Fair enough.
7 If Skokie Valley no longer holds
8 an NPDES permit, is there any chance that they will
9 fail to report a DMR in the future?
10 MR. COHEN: Objection, calls for
11 speculation.
12 BY MR. JAWGIEL:
13 Q. In your experience.
14 HEARING OFFICER SUDMAN: Could you
15 repeat the question?
16 MR. JAWGIEL: Sure. I'll rephrase it.
17 HEARING OFFICER SUDMAN: Could you?
18 Thank you.
19 BY MR. JAWGIEL:
20 Q. Has it been your experience, sir, in
21 the past 24 years that if a company no longer holds
22 an NPDES permit that they are not required to file a
23 DMR?
24 A. Once the permit expires, they're not
L.A. REPORTING (312) 419-9292
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1 required to.
2 Q. So if Skokie Valley, in your opinion,
3 no longer has an NPDES permit, they're not required
4 as we sit here today to file a DMR; is that correct?
5 A. That's correct.
6 Q. And in your experience and expertise,
7 Skokie Valley would be required to file a DMR until
8 an NPDES permit is granted to them if ever in the
9 future?
10 A. That's correct.
11 Q. Does the permit require the permittee
12 to maintain records for a certain period of time
13 with respect to the DMRs?
14 A. Yes.
15 Q. How long?
16 A. I need to refer --
17 Q. Take a look. I think it's Exhibit 1.
18 A. Three years from the effective date of
19 the permit they need to maintain their records.
20 Q. Three years from the effective date of
21 the permit; is that correct?
22 A. I can read what it says.
23 Q. Sure. Please.
24 HEARING OFFICER SUDMAN: Would you
L.A. REPORTING (312) 419-9292
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1 state where you're reading from, the
2 paragraph?
3 THE WITNESS: Exhibit 1, page 4,
4 attachment H, item 10B.
5 HEARING OFFICER SUDMAN: Thank you.
6 THE WITNESS: The permittee shall
7 retain all records of monitoring information,
8 including all calibration and maintenance
9 records and all original script chart
10 recording for continuous monitoring
11 instrumentation, copies of all reports
12 required by this permit and records of all
13 data used to complete the application for
14 this permit for a period of at least three
15 years from the date of this permit,
16 management report or application. The period
17 may be extended by request of the agency at
18 any time.
19 BY MR. JAWGIEL:
20 Q. Okay. Now with respect to the date of
21 this permit, is it your understanding the date is
22 when the permit was issued or the date that the
23 permit expires based on your expertise?
24 A. It would be from effective date of the
L.A. REPORTING (312) 419-9292
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1 permit.
2 Q. So the date that it was issued; is
3 that correct?
4 A. Well, no, that's not correct. It
5 would be from the date of when those records
6 became --
7 Q. Okay. So in 1987, Skokie Valley would
8 have been required to hang on to those documents
9 until 1990 based on your interpretation?
10 A. Yes.
11 Q. In 1997, Skokie Valley would have been
12 required to hang on to those documents until 2000?
13 A. Yes.
14 Q. Beyond that, there's no expectation;
15 is that correct?
16 A. Unless specifically requested by the
17 agency.
18 Q. Do you have any information that your
19 agency requested Skokie Valley to maintain your DMRs
20 any time longer than the three-year period listed in
21 a permit?
22 A. I don't.
23 Q. Have you ever after you've taken
24 employment with your department ever -- did the
L.A. REPORTING (312) 419-9292
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1 person actually stamp the reports?
2 A. No.
3 Q. You were never the person that
4 actually logged the information either; is that
5 correct?
6 A. No.
7 MR. JAWGIEL: If I may have one
8 minute?
9 HEARING OFFICER SUDMAN: (Indicating.)
10 BY MR. JAWGIEL:
11 Q. Sir, if we look at Exhibit 8, do you
12 see 8A -- well, actually let's go to 8B. Do you see
13 8B there, sir?
14 A. Yes.
15 Q. Do you see that Skokie Valley is
16 listed somewhere about the top -- actually top third
17 or so of the page; is that correct?
18 A. That's correct.
19 Q. You also see, though, at the bottom
20 half of the page a company by Bimet Corp, dash,
21 Morris. Do you see that there, sir?
22 A. Yes.
23 Q. And we see that they didn't report any
24 DMRs until November, is that correct, for this
L.A. REPORTING (312) 419-9292
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1 particular year?
2 A. No. It looks like they submitted in
3 October.
4 Q. Okay. October. Let's say October.
5 A. October DMR, November.
6 Q. Okay. And was there any action taken
7 by your department with respect to this company?
8 MR. COHEN: Objection, irrelevant.
9 MR. JAWGIEL: I think it goes clearly
10 to whether or not this is a witch-hunt. I
11 want to know whether or not these documents
12 are enforced and what's the purpose behind
13 these documents.
14 The State is holding this out as
15 the foundation for bringing allegations
16 against my client. I want to know whether or
17 not they brought these allegations against
18 everybody or are we being picked out.
19 HEARING OFFICER SUDMAN: Well, repeat
20 your question again.
21 MR. JAWGIEL: Sure.
22 There's a line there for Bimet,
23 B-I-M-E-T, Corp, dash, Morris and their first
24 DMR as we've established through the
L.A. REPORTING (312) 419-9292
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1 testimony was filed in October of that year,
2 and my question was did his department take
3 any action against that particular company.
4 HEARING OFFICER SUDMAN: And your
5 objection was --
6 MR. COHEN: It's irrelevant. There's
7 certainly insufficient foundation to ask this
8 witness the question.
9 MR. JAWGIEL: He was the head of the
10 department.
11 HEARING OFFICER SUDMAN: Well, I'll
12 let you ask that one. Is this a whole line
13 of questioning on --
14 MR. JAWGIEL: Well, there's a couple
15 of companies that we see in the same
16 situation. I can ask him in whole.
17 HEARING OFFICER SUDMAN: You can ask
18 in general.
19 MR. COHEN: May I make a general
20 objection?
21 HEARING OFFICER SUDMAN: Yes.
22 MR. COHEN: In the format that he's
23 asking the question, there's no foundation
24 laid because there's no evidence in the
L.A. REPORTING (312) 419-9292
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1 record as to when the permit he's asking
2 about was issued and what the particular
3 requirement of that permit is to know whether
4 there is a violation just by looking at the
5 log.
6 HEARING OFFICER SUDMAN: Actually,
7 I've decided I'll allow his answer as an
8 offer of proof.
9 MR. JAWGIEL: Well, now, let's take a
10 step back. If that's the State's position,
11 let's look at Cartex in Addison. They
12 reported something, I believe, in May and
13 then didn't report until again in November.
14 So I think that clearly shows a nice gap of
15 time of about five months or so where there
16 was no reporting. I want to know whether or
17 not Cartex was -- were any actions taken by
18 the department against Cartex for these
19 violations?
20 HEARING OFFICER SUDMAN: Well, I don't
21 think it's relevant, but I'm going to allow
22 you to ask generally if he knows about the
23 legal status of those companies. But I mean,
24 I don't think it's relevant to this case.
L.A. REPORTING (312) 419-9292
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1 That's why I'm allowing you to ask one
2 question as an offer of proof, one or two.
3 BY MR. JAWGIEL:
4 Q. Sir, if we look through Exhibit 8 in
5 its entirely, we see spots here where various other
6 companies other than Skokie Valley had failed to
7 submit DMR reports for various periods of time.
8 Some of them had filed DMRs and
9 failed to do so for a while and then filed another
10 one. Are you aware of any of these companies being
11 prosecuted for the failure to file their DMRs other
12 than Skokie Valley?
13 MR. COHEN: I have the same objection,
14 your Honor.
15 MR. JAWGIEL: Yeah, we'll note the
16 objection.
17 HEARING OFFICER SUDMAN: Objection
18 noted.
19 THE WITNESS: I'm not aware of it
20 today.
21 BY MR. JAWGIEL:
22 Q. Okay.
23 A. But there could be an explanation why.
24 Q. I'm not asking you for an explanation,
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1 though, sir. I'm asking you to answer the question.
2 MR. JAWGIEL: That's all I have for
3 this witness. Thank you for your time.
4 HEARING OFFICER SUDMAN: Thank you.
5 Redirect?
6 MR. COHEN: Your Honor, no redirect.
7 Mr. Garretson was kind enough to come from
8 Springfield. I would ask that he be excused.
9 HEARING OFFICER SUDMAN: If there are
10 no further questions for Mr. Garretson, you
11 may be excused.
12 THE WITNESS: Thank you.
13 (Witness excused.)
14 MR. COHEN: Also, your Honor, I would
15 ask for a break.
16 HEARING OFFICER SUDMAN: Yes, I agree.
17 We will take a short recess of about five
18 minutes, maybe ten.
19 MR. COHEN: Okay.
20 (Whereupon, after a short
21 break was had, the following
22 proceedings were held
23 accordingly.)
24 HEARING OFFICER SUDMAN: We will go
L.A. REPORTING (312) 419-9292
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1 back on the record with the People's next
2 witness.
3 MR. MURPHY: Your Honor, the State
4 calls Chris Kallis to the stand.
5 HEARING OFFICER SUDMAN: You may sit
6 over here, Mr. Kallis. The court reporter
7 will swear you in.
8 (Witness sworn.)
9 MR. JAWGIEL: Your Honor, can you just
10 note my objection of having Mr. Kallis
11 testify regarding the source of the
12 contamination in the Avon drainage ditch? At
13 this point in time -- unless you want me to
14 bring it contemporaneous to --
15 HEARING OFFICER SUDMAN: No. I prefer
16 you just make a standing objection now.
17 Thank you.
18 MR. JAWGIEL: Okay. That way we
19 don't --
20 HEARING OFFICER SUDMAN: Thank you. I
21 appreciate that.
22 MR. COHEN: If I may just inquire, is
23 that the same one from the motion in limine?
24 MR. JAWGIEL: Right, the motion in
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1 limine just so I don't have to keep jumping
2 up and down like a crazy man.
3 HEARING OFFICER SUDMAN: Thank you.
4 MR. MURPHY: Are all of the objections
5 in the motion in limine?
6 MR. JAWGIEL: Right.
7 MR. MURPHY: Okay.
8 MR. JAWGIEL: Yeah, we'll stand it
9 through the testimony.
10 HEARING OFFICER SUDMAN: Yes. Thank
11 you.
12 WHEREUPON:
13 CHRIS KALLIS
14 called as a witness herein, having been first duly
15 sworn, deposeth and saith as follows:
16 D I R E C T E X A M I N A T I O N
17 BY MR. MURPHY:
18 Q. Please state your name and spell your
19 last name for the record?
20 A. Chris Kallis, K-A-L-L-I-S.
21 Q. Who is your employer?
22 A. Illinois Environmental Agency.
23 Q. How long have you been employed with
24 the Illinois EPA?
L.A. REPORTING (312) 419-9292
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1 A. Approximately 22 years.
2 Q. Which bureau do you currently work for
3 at Illinois of EPA?
4 A. The Bureau of Water.
5 Q. How long has that bureau been known by
6 that name?
7 A. I believe about -- and I get my times
8 off -- about 12 years.
9 Q. Was there a different organization
10 prior to that time?
11 A. What the bureau of water is is a
12 consolidated bureau of what was once divisions.
13 There was the division of water pollution control
14 and the division of public water supply. What the
15 bureau of water did is it consolidated them under
16 one bureau. I work for the division of water
17 pollution control.
18 Q. Thank you.
19 What is your job title at Illinois
20 EPA?
21 A. Environmental protection specialist.
22 Q. How long have you been an environment
23 protection specialist?
24 A. About 20 years.
L.A. REPORTING (312) 419-9292
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1 Q. Okay. Can you briefly describe for
2 the Board your duties as an environmental protection
3 specialist for the Illinois EPA?
4 A. My duties are to conduct inspections
5 and investigations to ensure compliance with the
6 Illinois Environmental Protection Act and Title 35
7 concerning water pollution.
8 Q. Okay. In your experience in doing
9 that, have you had -- or during your time doing
10 that, have you had some experience with what's known
11 as the NPDES program?
12 A. Yes.
13 Q. What does that acronym stand for?
14 A. National Pollutant Discharge
15 Elimination System.
16 Q. And how does that program function?
17 A. It functions by issuing NPDES permits
18 to any entity, industry, municipality or otherwise
19 that has the potential of discharging contaminants
20 to waters of the State.
21 Q. Does it involve water quality
22 standards?
23 MR. JAWGIEL: I'll object to the
24 leading nature.
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1 HEARING OFFICER SUDMAN: I think he's
2 just laying some background. I'll allow it.
3 THE WITNESS: It was put into place to
4 ensure water quality standards.
5 BY MR. MURPHY:
6 Q. Can you describe what types of water
7 quality standards there are?
8 A. Under the statute there are water
9 quality standards that are based on numerical
10 concentrations of contaminants and there's also
11 standards involving visual observations such as
12 oils, grease, turbidity, odor.
13 Q. Okay. Thank you.
14 Can you briefly describe your
15 education?
16 A. I have a bachelor's degree from
17 Northeastern University.
18 Q. What is the bachelor's degree in?
19 A. Geography and environmental science --
20 or the study.
21 Q. Is that a bachelor of science?
22 A. No.
23 Q. A bachelor of arts?
24 A. Yeah.
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1 Q. When did you receive that degree?
2 A. I received it in late 1977.
3 Q. Have you received any training from
4 Illinois EPA or any other agency during your time
5 with Illinois EPA?
6 A. I have received training from Illinois
7 EPA and from USEPA.
8 Q. And that is concerning -- was that
9 training concerning water pollution laws and
10 regulations?
11 MR. JAWGIEL: Again, I'm going to
12 object to the leading nature.
13 HEARING OFFICER SUDMAN: This is just
14 background information. I'll allow it just
15 so we can get through it more quickly.
16 THE WITNESS: Thank you.
17 The training that was done by
18 Illinois EPA primarily concerned waste water
19 treatment plants. It was a correspondence
20 course that was given at the time I started
21 the agency to all inspectors that were
22 starting with the agency to increase their
23 ability of inspecting waste water treatment
24 facilities.
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1 Concerning the NPDES permits, I
2 have received some training from USEPA or at
3 least sponsored by USEPA concerning storm
4 water, the NPDES storm program.
5 BY MR. MURPHY:
6 Q. Okay. Switching now to the matter
7 that brings us all here today, are you familiar with
8 the site formerly known as Skokie Valley Asphalt in
9 Grayslake that is the subject of this proceeding?
10 A. Yes.
11 Q. Okay. How are you familiar with that
12 site?
13 A. Through the years I've inspected them
14 many times.
15 Q. Can you give us some kind of time
16 frame when you first started going there and how
17 long those inspections lasted over time?
18 A. I believe I first started inspecting
19 Skokie Valley Asphalt in the early '80s.
20 Q. Why were you going to Skokie Valley
21 Asphalt?
22 A. Initially it was to confirm what was
23 there. We had a system, a list of many facilities,
24 some that had NPDES permits and some that had
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1 pending NPDES permits, and my job was to go to these
2 facilities and do a permit verification and also to
3 determine compliance.
4 Q. Okay. Were there any other reasons
5 later on why you would go to Skokie Valley Asphalt?
6 MR. JAWGIEL: Again, I'm going to
7 object to the time frame with respect to
8 when.
9 HEARING OFFICER SUDMAN: Would you
10 like to --
11 MR. MURPHY: Well, he's already said
12 during the 1980s.
13 HEARING OFFICER SUDMAN: Oh, during
14 the 1980s?
15 MR. JAWGIEL: Okay. If it's limited
16 to 1980, that's fine.
17 HEARING OFFICER SUDMAN: Okay.
18 THE WITNESS: In the 1980s, yes, I did
19 inspect Skokie Valley Asphalt as a follow-up
20 to citizen complaints.
21 BY MR. MURPHY:
22 Q. What were the citizen complaints about
23 generally?
24 MR. JAWGIEL: Your Honor, I'm going to
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1 object as to hearsay.
2 HEARING OFFICER SUDMAN: Well --
3 MR. JAWGIEL: It's pure hearsay.
4 MR. MURPHY: It's not offered for the
5 truth of the matter as certain, your Honor.
6 It's an offer to see why he's going to the
7 site.
8 MR. JAWGIEL: Well, along with it, it
9 has no relevance. The time frame of the
10 complaint starts in 1988. We don't have --
11 we have no relevance or any sort of causal
12 connection between what they're eliciting
13 from him or not.
14 He's already said he's been there
15 since the 1980s until -- they haven't
16 established when, but the bottom line is
17 we're there. The foundation has been laid.
18 Let's move on.
19 HEARING OFFICER SUDMAN: Your
20 objection is noted, but I'm going to allow it
21 because it does explain why he was there.
22 MR. JAWGIEL: But, your Honor, if I
23 may just for the record, it has no relevance
24 of why he was there because that's not part
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1 of the complaint.
2 MR. MURPHY: It is part of the
3 complaint. It runs towards violations also
4 relevant for Sections 33C and 42H.
5 HEARING OFFICER SUDMAN: I agree. I'm
6 going to allow it.
7 THE WITNESS: Yes. In around 1987, I
8 did inspect Skokie Valley Asphalt as a result
9 of complaints of water quality violations in
10 the Avon drainage ditch.
11 BY MR. MURPHY:
12 Q. Okay. Now, you mentioned that the
13 inspections you performed happened in the 1980s.
14 Did you also go there after that?
15 A. Yes.
16 Q. Okay. So into the 1990s?
17 A. Yes.
18 Q. What type of business is located at
19 the Skokie Valley Asphalt site?
20 A. As long as I've been inspecting Skokie
21 Valley Asphalt, they've used that site for storage
22 of liquid asphalt and also as a transportation
23 facility, a dispatch transportation facility.
24 That's where they seemed to have kept all their
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1 trucks and so on.
2 Q. Were there any notable activities at
3 the site that were of interest to you as an
4 inspector?
5 MR. JAWGIEL: I'm going to object as
6 to the time frame.
7 MR. MURPHY: In the 1980s.
8 HEARING OFFICER SUDMAN: Thank you.
9 MR. JAWGIEL: I'm going to object to
10 relevance.
11 HEARING OFFICER SUDMAN: Overruled.
12 THE WITNESS: Yes. They had a
13 treatment system for storm water runoff that
14 consisted of an oil separator in the two-cell
15 lagoon system on their site.
16 BY MR. MURPHY:
17 Q. Who were the owners of Skokie Valley
18 Asphalt, if you know?
19 A. At the time, the owners were --
20 MR. JAWGIEL: I'm going to object as
21 to speculation, your Honor. This is a
22 corporation. There are owners, the
23 shareholders.
24 HEARING OFFICER SUDMAN: He said if he
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1 knows. He was a site inspector. I mean, I'm
2 going to allow him to answer it.
3 THE WITNESS: To the best of my
4 knowledge, the owners were the Frederick
5 brothers.
6 BY MR. MURPHY:
7 Q. Do you know their first names?
8 A. Yes. Richard and Larry -- or Edwin.
9 I know that it's both Edwin and Larry.
10 Q. Did you ever know Skokie Valley
11 Asphalt to have operated under a different name?
12 A. Yes.
13 Q. What was that different name?
14 A. Liberty Asphalt.
15 MR. JAWGIEL: I'm going to object as
16 to speculation with respect to the
17 relationship and the corporate structure
18 between Libertyville Asphalt and Skokie
19 Valley unless there's something else to
20 establish that.
21 There are two separate entities
22 and that hasn't been established here, so he
23 hasn't laid proper foundation for that
24 question.
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1 HEARING OFFICER SUDMAN: Would you
2 like to respond to that, Mr. Murphy?
3 MR. MURPHY: Sure. I asked him if he
4 knew if the business, Skokie Valley Asphalt,
5 ever operated under a different name and he
6 said he knew and he gave me an answer.
7 MR. JAWGIEL: But he hasn't
8 established the foundation of how me gained
9 that knowledge. There has to be a foundation
10 how he gained the knowledge that Skokie
11 Valley operated under a different name under
12 that corporate structure.
13 HEARING OFFICER SUDMAN: I don't think
14 we need that at this point. He just asked
15 him if he knew if it operated under a
16 different name. I'll allow it to stand as it
17 is.
18 MR. MURPHY: Thank you.
19 BY MR. MURPHY:
20 Q. Are you familiar with the area
21 surrounding the former Skokie Valley Asphalt site?
22 A. Yes.
23 Q. Okay. And how are you familiar with
24 the area surrounding the former Skokie Valley
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1 Asphalt site?
2 A. Just from inspecting Skokie Valley
3 Asphalt and being the primary inspector for
4 Lake County for dozens of years.
5 Q. So these inspections occurred during
6 the same time frame that you inspected the actual
7 Skokie Valley Asphalt site?
8 A. Yes.
9 Q. And that was through the '80s and
10 '90s, I believe?
11 A. Yes.
12 Q. Thank you.
13 What did your inspections mainly
14 deal with at the Skokie Valley Asphalt site and the
15 surrounding area?
16 A. They mainly dealt with their two-cell
17 lagoon system, which was the primary source of any
18 discharge from them during those times.
19 Q. And as a regulatory matter, why was
20 that significant?
21 A. Well, according to their NPDES permit
22 application, it was the main source of their
23 discharge.
24 Q. Were you investigating violations of
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1 their NPDES permit?
2 A. In 1987, the first time.
3 Q. Were you ever investigating anything
4 else?
5 A. Before that, it was primarily permit
6 verification.
7 Q. What about water quality violations?
8 MR. JAWGIEL: Your Honor, if I may,
9 he has a notepad that he's referring to on
10 the desk and I ask that that be removed.
11 HEARING OFFICER SUDMAN: Okay. Thank
12 you. I also ask that that be produced to us
13 so we can review it.
14 THE WITNESS: It's a personal notepad,
15 your Honor.
16 HEARING OFFICER SUDMAN: Pardon me?
17 THE WITNESS: It's a personal notepad,
18 your Honor.
19 MR. MURPHY: They can see it. I've
20 got no problem with them seeing it.
21 HEARING OFFICER SUDMAN: Okay. Show
22 him the page you were looking at.
23 MR. MURPHY: I'm just asking if --
24 THE WITNESS: Sir, sir -- I would like
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1 my personal notepad back, your Honor. Those
2 are personal notes.
3 HEARING OFFICER SUDMAN: Were you
4 reviewing that during your testimony that you
5 had given?
6 THE WITNESS: I just referred as a
7 date. I did write dates down.
8 MR. JAWGIEL: He's referring to it, so
9 we're going to take a look at it.
10 THE WITNESS: Your Honor, this is a
11 personal notepad; there are personal notes.
12 HEARING OFFICER SUDMAN: I understand
13 that but when you bring it here --
14 THE WITNESS: Okay. I got you.
15 MR. MURPHY: Can I ask if he's going
16 to need to refer to that during his --
17 HEARING OFFICER SUDMAN: Yes, please.
18 BY MR. MURPHY:
19 Q. Are you going to need to refer to that
20 notebook during the rest of your testimony?
21 MR. JAWGIEL: I'll object. It hasn't
22 been produced until now. This is a complete
23 surprise. A witness is not allowed to write
24 notes and bring them on the stand to help him
L.A. REPORTING (312) 419-9292
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1 testify. He's here to present documentation
2 that will refresh his recollection and lay
3 the proper foundation if he does not have
4 personal knowledge. But a witness can't
5 write out their testimony and take it to the
6 stand and read it into the record.
7 MR. MURPHY: I don't think that's what
8 he was doing. He looked for verification of
9 a couple of dates.
10 MR. JAWGIEL: Regardless of what he
11 was doing with it. This is completely
12 improper procedure to even allow the witness
13 to bring a notepad up to the stand during
14 testimony.
15 MR. MURPHY: No, it's not. It's
16 perfectly acceptable.
17 THE WITNESS: Your Honor, I don't need
18 it.
19 HEARING OFFICER SUDMAN: Okay. He's
20 not going to use it.
21 MR. MURPHY: Can we have it back then?
22 MR. JAWGIEL: I'm going to review it.
23 I still get a chance to review it. It's a
24 document that he was using during the course
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1 of his testimony here today.
2 HEARING OFFICER SUDMAN: Okay. Take a
3 minute, but look at it quickly. We'll wait
4 for you.
5 (Mr. Jawgiel perusing
6 the notepad.)
7 You've got about another 30 seconds.
8 And I'll note for the record that I actually
9 did not see you looking at any notes.
10 MR. JAWGIEL: And I also ask that you
11 note for the record that the notepad was next
12 to him before he handed it over to me and
13 that he also admitted on the stand that he
14 was reviewing it in his testimony.
15 HEARING OFFICER SUDMAN: So noted.
16 Please continue.
17 BY MR. MURPHY:
18 Q. There's a question that's pending and
19 I believe it had to do with your inspections of the
20 Skokie Valley Asphalt site and the surrounding
21 having to do with water quality violations.
22 A. Yes.
23 Q. So that was another reason why you
24 went there?
L.A. REPORTING (312) 419-9292
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1 A. Yes.
2 Q. Okay. Did Skokie Valley Asphalt have
3 an NPDES permit to your knowledge?
4 A. Yes.
5 Q. Why was Skokie Valley Asphalt required
6 to have an NPDES permit?
7 A. Because it was determined by field
8 operations section that they had storm water runoff
9 associated with industrial activity that could be a
10 threat to water quality.
11 Q. Now, can you explain what field
12 operations section is?
13 A. It's a section of division of water
14 pollution control that does the field inspections.
15 Q. For Illinois EPA?
16 A. For Illinois EPA, for the division of
17 water pollution control.
18 Q. Mr. Kallis, you have a binder in front
19 of you.
20 A. Yes.
21 Q. I'm going to refer you to Exhibit
22 No. 19. Please take a moment to look at that.
23 (Witness perusing
24 the document.)
L.A. REPORTING (312) 419-9292
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1 A. Okay.
2 Q. Do you recognize it?
3 A. Yes.
4 Q. What is it?
5 A. It's a memo dated August 9, 1991 to
6 Margaret Howard from myself concerning Skokie Valley
7 Asphalt.
8 Q. Okay. And are there attachments to
9 that August 9, 1991 memo?
10 A. Yes. There's a memo dated June 4,
11 1991 to Bill Bush from myself concerning Skokie
12 Valley Asphalt.
13 Q. As long as you listed them, are there
14 others?
15 A. There's a division of land pollution
16 complaint investigation form and there's a letter
17 from Tod Marvel, division of land pollution, FOS, to
18 Gary King, EDG, dated
19 July 18, 1988.
20 Q. What about after the GOPC component?
21 A. Right. After that, there is a
22 compliance inquiry letter dated October 31 --
23 ironically -- 1988 to Skokie Valley Asphalt from
24 Roger Callaway, the compliance monitoring unit.
L.A. REPORTING (312) 419-9292
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1 There is a correspondence dated November 9, 1988
2 signed by Richard Frederick to compliance assurance
3 section.
4 There is a certified mail dated
5 January 5, 1990, which was also a compliance inquiry
6 letter also signed by Roger Callaway, and there is a
7 correspondence dated January 17, 1990 from Skokie
8 Valley Asphalt signed by a Robert Christiansen,
9 operations manager.
10 There's a September 13, 1990
11 correspondence from Marlene McHenry, office
12 administrator of permit section, division of water
13 pollution control to Skokie Valley Asphalt.
14 There's an April 11, 1991 letter,
15 compliance inquiry letter on failure to file permit
16 renewal application signed by Roger Callaway. There
17 is a response letter from Skokie Valley Asphalt
18 dated April 22, 1991, signed by Edwin Frederick.
19 There's a May 7, 1991
20 correspondence to Jan Hopper from Edwin Frederick.
21 There's a sample result that I took dated March 21,
22 1991.
23 Q. Did you attach those attachments to
24 the August 9, 1991 memo?
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1 A. Yes, I did.
2 Q. When you prepared the August 9, 1991
3 memo?
4 A. Yes.
5 Q. Is the August 9, 1991 memo used in the
6 ordinary course of Illinois EPA business?
7 A. Yes.
8 Q. Together with its attachments?
9 A. Yes.
10 Q. Is the August 9, 1991 memo together
11 with the attachments kept in the ordinary course of
12 Illinois EPA business?
13 A. Yes.
14 Q. Is that a true and accurate copy of
15 the memo and the attachments?
16 A. Yes, it is.
17 Q. Mr. Kallis, can you tell the Board
18 what was listed in the NPDES permit application as
19 sources of -- potential sources of pollution?
20 A. The application listed gravel, sand,
21 stone, recycled bituminous, concrete, pavement,
22 asphalt, cemented tanks, gasoline, fuel, oil, and
23 tanks.
24 Q. Did it mention anything else?
L.A. REPORTING (312) 419-9292
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1 A. I wrote: It is believed based on past
2 reports that the bituminous concrete, which is
3 stored in a huge pile, is a major source of
4 contamination.
5 Q. In the NPDES permit application -- or
6 does the NPDES permit application indicate how storm
7 water is collected and treated at the Skokie Valley
8 Asphalt site?
9 A. Yes.
10 Q. Can you explain how that --
11 A. Yes. Treatment consists of storm
12 water routed via gravity to an oil/water separator,
13 which is a triple basin separator, according to
14 their permit application anyway in a storm water
15 retention pond -- it was a two-cell pond -- in its
16 two-cell pond.
17 Q. Can you describe how the oil separator
18 works?
19 A. Well, a separator works as a skimming
20 device using a series of layers (indicating).
21 Q. And what's the purpose of the
22 oil/water separator?
23 A. To remove oil.
24 Q. Where did the storm water go after the
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1 storm sewer -- strike that.
2 Where did the storm water go after
3 running through the oil/water separator and the
4 storm water retention ponds?
5 A. Well, the NPDES permit was for a
6 tributary to Grayslake.
7 Q. So is that where the storm water would
8 go after running through there?
9 MR. JAWGIEL: Your Honor, I'm going
10 to objection. He hasn't laid a foundation
11 where that particular drain ditch goes with
12 this particular witness.
13 HEARING OFFICER SUDMAN: Well, I think
14 that's what he's doing now.
15 Continue.
16 MR. MURPHY: Thank you.
17 THE WITNESS: Can you repeat the
18 question?
19 BY MR. MURPHY:
20 Q. Where was the storm water to go after
21 being routed through the oil/water separator and the
22 storm water retention ponds?
23 A. It was to go to Grayslake. That's
24 where it was to go according to the NPDES permit.
L.A. REPORTING (312) 419-9292
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1 Q. Is Grayslake a water of the State?
2 A. Yes.
3 Q. What kind of NPDES permit did Illinois
4 EPA issue to Skokie Valley Asphalt?
5 A. A site-specific NPDES permit for their
6 storm water runoff of this facility.
7 Q. What is the intent behind or purpose
8 behind an NPDES site-specific permit?
9 A. The purpose behind an NPDES
10 site-specific permit is to ensure that water quality
11 standards are met by ensuring that the industry --
12 that's the permittee so to speak -- monitors on a
13 regular basis.
14 Q. During your inspection, did you ever
15 observe that Skokie Valley Asphalt was not in
16 compliance with its April 4, 1986 NPDES permit?
17 A. Yes.
18 Q. More than once?
19 A. Yes.
20 Q. Do you note in your August 9, 1991
21 memo why Skokie Valley Asphalt was out of compliance
22 with its 1986 NPDES permit? And I direct your
23 attention to bullet point number 2.
24 A. There was no representative sampling
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1 point. You're talking on item number 2 on the
2 August 9 memo, right?
3 Q. Yes, sir.
4 A. Right.
5 Q. And what is a representative sampling
6 point?
7 A. It is a point that's needed for the
8 permittee to grab their samples and for the agency
9 to grab samples too for confirmation to ensure that
10 they're meeting the permit limits that were
11 described in the NPDES permit.
12 Q. And the 1986 NPDES permit required
13 them to have such a sampling point?
14 A. It required them to take
15 representative samples.
16 Q. And to do that --
17 A. You need a representative sampling
18 point.
19 Q. Okay. I'm going to direct your
20 attention now to the June 4, 1991 memo that's an
21 attachment to the August 9, 1991 memo. Can you tell
22 me what that memo is about?
23 A. It was a compliance update to our
24 field operations manager at the time.
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1 Q. And specifically was it referenced in
2 the May 21, 1991 inspection visit?
3 A. Yes.
4 Q. Can you describe what happened during
5 that inspection visit?
6 MR. JAWGIEL: Your Honor, this has
7 little or no relevance.
8 HEARING OFFICER SUDMAN: In what way?
9 I think it's pretty relevant.
10 MR. JAWGIEL: All right. I'll
11 withdraw the objection.
12 HEARING OFFICER SUDMAN: Okay.
13 MR. JAWGIEL: Let's see where it goes.
14 HEARING OFFICER SUDMAN: All right.
15 Thank you.
16 THE WITNESS: The purpose of the
17 inspection was twofold. It was to meet --
18 some folks from the division of land
19 pollution control were there to do a site
20 assessment just as a general knowledge
21 consulting thing for them.
22 I was also there to establish
23 whether indeed Skokie Valley Asphalt had
24 installed a representative monitoring point
L.A. REPORTING (312) 419-9292
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1 to ensure NPDES monitoring.
2 BY MR. MURPHY:
3 Q. Did you meet anybody from Skokie
4 Valley Asphalt during that inspection?
5 A. Yes, I met Richard Frederick and
6 Edwin Frederick.
7 Q. Did you have a conversation with
8 Richard Frederick and Larry Frederick about that?
9 A. Yes, I did.
10 Q. About why you were there?
11 A. Yes, I did.
12 Q. What happened in that conversation?
13 MR. JAWGIEL: I'm just going to object
14 with regard to what happened in that
15 conversation. If he wants to ask him what
16 was said in that conversation, that's fine,
17 but I think the form of the question is
18 inappropriate.
19 HEARING OFFICER SUDMAN: Well, I think
20 it's -- I mean, I can understand what the
21 meaning is. If you want to rephrase it, you
22 can, otherwise, I think it's pretty clear.
23 MR. MURPHY: Sure. I'll be happy to.
24
L.A. REPORTING (312) 419-9292
141
1 BY MR. MURPHY:
2 Q. Who said what to whom in that
3 conversation?
4 A. Well, I stated I was there mainly to
5 establish whether they put in a sampling point in a
6 manhole that connected their lagoon system to a
7 tributary to Grayslake and there was some resistance
8 and --
9 MR. JAWGIEL: I'm going to object.
10 This witness is reading from the document.
11 HEARING OFFICER SUDMAN: Well, no,
12 here, that's fine.
13 MR. JAWGIEL: If he needs to refresh
14 his recollection -- this reading from the
15 document serves no purpose.
16 THE WITNESS: Madam Hearing Officer, I
17 wasn't reading from a document at that time.
18 HEARING OFFICER SUDMAN: Overruled.
19 Go ahead.
20 THE WITNESS: What had happened was
21 some tempers flared and there was some
22 hostility and I got the impression they
23 wanted me to go, so I left just to avoid
24 confrontation.
L.A. REPORTING (312) 419-9292
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1 BY MR. MURPHY:
2 Q. Hostility on whose part?
3 A. On Richard and Edwin Frederick.
4 Q. So did the Frederick brothers show you
5 an effluent sampling point when you showed up on
6 that date?
7 A. Not on that day.
8 Q. So you were not able to see a sampling
9 point on that day?
10 A. Not on that day.
11 Q. Directing your attention to Exhibit 20
12 in the binder, will you take a moment to look
13 through that, please.
14 (Witness perusing
15 the document.)
16 A. Okay.
17 Q. Do you recognize that document?
18 A. Yes, I do.
19 Q. What is it?
20 A. It is a memo from myself,
21 Chris Kallis, to Rick Pinio dated October 9, 1991
22 concerning my comments on NPDES permit application.
23 Q. Who is Rick Pinio?
24 A. Rick Pinio is an employee of division
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143
1 of water pollution control industrial permit
2 section. His job is to write permits.
3 Q. So he's an Illinois EPA employee?
4 A. Yes, he is.
5 Q. Is this document used in the ordinary
6 course of normal EPA business?
7 A. Yes.
8 Q. Is this document kept in the ordinary
9 course of normal EPA business?
10 A. Yes.
11 Q. Is this a true and accurate copy of
12 that memo?
13 A. Yes.
14 MR. MURPHY: Madam Hearing Officer,
15 may I have a second?
16 HEARING OFFICER SUDMAN: Yes.
17 BY MR. MURPHY:
18 Q. Which permit did that memo refer to?
19 A. It referred to the NPDES application
20 for renewal of permit from Skokie Valley Asphalt.
21 Q. What was the date of that permit
22 application, if you remember?
23 A. That, I don't. I'm sorry.
24 Q. Okay. Would it have been sometime
L.A. REPORTING (312) 419-9292
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1 around the date of that memo?
2 MR. JAWGIEL: Your Honor, I'm going to
3 object. That asks for speculation. If he
4 doesn't know the date, he won't know when it
5 was.
6 HEARING OFFICER SUDMAN: You're asking
7 him what the date was?
8 MR. MURPHY: If he knows -- he may not
9 know the specific date but he may know that
10 it was sometime around the memo or why else
11 would he be doing the memo at that time?
12 MR. JAWGIEL: That's pure speculation.
13 MR. MURPHY: No. That's why I asked
14 the question.
15 HEARING OFFICER SUDMAN: Well,
16 overruled. I'll allow it.
17 THE WITNESS: I believe it was shortly
18 before this memo.
19 BY MR. MURPHY:
20 Q. Mr. Kallis, while Skokie Valley
21 Asphalt operated under the 1986 permit, did Skokie
22 Valley Asphalt have a representative sampling point
23 that was accessible?
24 A. Can you repeat that question? I'm
L.A. REPORTING (312) 419-9292
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1 sorry.
2 Q. Certainly.
3 While Skokie Valley Asphalt
4 operated under the 1986 NPDES permit, did Skokie
5 Valley Asphalt have a representative sampling point
6 that was accessible?
7 A. No.
8 Q. Was Skokie Valley Asphalt ever
9 permitted to discharge to Avon drainage ditch?
10 A. No.
11 Q. Did Skokie Valley Asphalt at all times
12 comply with the 1986 NPDES permit in its discharge
13 to Grayslake?
14 A. You're asking me if they complied with
15 their discharge to Grayslake?
16 Q. Correct.
17 A. No.
18 Q. Does Avon drainage ditch discharge to
19 Grayslake?
20 A. No.
21 Q. Where does it discharge?
22 A. Third Lake.
23 Q. Turning your attention to Exhibit
24 No. 32, does that map indicate where Skokie
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1 Valley -- strike that.
2 Does that map indicate where Avon
3 Fremont drainage ditch is?
4 A. Yes. It's that blue line that's just
5 to the right of the site of Skokie Valley Asphalt.
6 Q. Where does that blue line run?
7 A. It flows north.
8 Q. It flows north through the Village of
9 Grayslake?
10 A. Yes.
11 Q. Mr. Kallis, I want to direct your
12 attention now to Exhibit No. 18 in the binder. Take
13 a moment to look at that, please.
14 (Witness perusing
15 the document.)
16 A. Yes. It's a complaint investigation
17 dated March 5, 1987.
18 MR. JAWGIEL: Your Honor, I'm going to
19 object to the relevance of this. The
20 complaint doesn't start with any allegations
21 against us in 1988.
22 HEARING OFFICER SUDMAN: Pardon me. I
23 didn't hear you.
24 MR. JAWGIEL: The complaint doesn't
L.A. REPORTING (312) 419-9292
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1 start with any allegations against Skokie
2 Valley until 1988. This is a 1987 complaint.
3 The relevance of this is nonexistent.
4 HEARING OFFICER SUDMAN: Mr. Murphy?
5 MR. MURPHY: It is certainly relevant,
6 Madam Hearing Officer, when you consider
7 Section 33 of the Act and I'll read right
8 from the Act. The character and degree of
9 injury to -- Section 33(c)(i): The character
10 and degree of injury to or interference with
11 the protection of the health and general
12 welfare and physical property of the people;
13 (5): Any subsequent compliance.
14 These are things that the Board
15 may consider in its orders and determination.
16 HEARING OFFICER SUDMAN: Okay. I'm
17 going to overrule it.
18 MR. JAWGIEL: Your Honor, they have
19 not read anything out of the Act that has any
20 bearing on the memo that predates the
21 complaint. There's no relevance whatsoever
22 and they haven't sited any sort of language
23 in the Act that allows for it.
24 It has no relevance whatsoever and
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1 what they're trying to do is merely muddle
2 the issues. The issues in the complaint have
3 been laid out. They're presenting a memo
4 that predates it that has nothing to do with
5 the allegations in the complaint and now
6 they're trying to basically muddy the waters.
7 MR. MURPHY: I can show this memo is
8 relevant, one, because it relates to the
9 issue of corporate officer liability and it
10 also relates to the issue of why he was going
11 out to the site in the first place and why
12 they were required to get an NPDES permit.
13 HEARING OFFICER SUDMAN: Okay. I'm
14 going to allow it.
15 BY MR. MURPHY:
16 Q. Did you prepare that report?
17 A. Yes.
18 Q. When did you prepare it?
19 A. I prepared it sometime after
20 March 5, but before March 10.
21 Q. Okay. So shortly after you made the
22 inspection?
23 A. Right.
24 Q. Is that document used in the ordinary
L.A. REPORTING (312) 419-9292
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1 course of Illinois EPA business?
2 A. It was at the time. We don't
3 handwrite inspection reports now.
4 Q. Is that document kept in the ordinary
5 course of Illinois EPA business?
6 A. Yes.
7 Q. Is that a true and accurate copy of
8 that report?
9 A. Yes.
10 Q. Mr. Kallis, what did you observe
11 during your March 3, '87 inspection?
12 A. We had a complaint of oil and grease,
13 just an oily residue in Avon drainage ditch and we
14 traced it to a pump-out -- when I say we, I mean me
15 representing the agency -- from their two-cell
16 lagoon.
17 Q. What kind of pump-out, can you
18 describe that, please?
19 A. It was done with a portable pump with
20 an elongated hose.
21 Q. Where was the hose hooked up to and
22 where did it discharge to?
23 A. It was hooked up to their second cell
24 and it lead to the southeast part of their property.
L.A. REPORTING (312) 419-9292
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1 Q. What are you referring to when you say
2 cell?
3 A. I'm referring to a manhole that is
4 located kind of southeast of their property. It's
5 on the drawing on the second page.
6 Q. Okay. And that was the discharge
7 point?
8 A. Yes.
9 Q. My question is where was the line
10 drawing its discharge from?
11 A. The two-cell lagoon.
12 Q. The second cell, two-cell lagoon?
13 A. Right, which are pictured on photo
14 three.
15 Q. Attached to that report?
16 A. Yes.
17 Q. Previously you referred to storm water
18 retention ponds. Are these cells the same thing as
19 the storm water retention ponds?
20 A. That is correct.
21 Q. Who is this "they" that you're saying
22 was discharging this material, this liquid from the
23 storm water pond to the manhole?
24 A. Skokie Valley Asphalt.
L.A. REPORTING (312) 419-9292
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1 Q. Did they have a permit to do that?
2 A. No.
3 Q. Was that covered by their 1986 NPDES
4 permit?
5 A. No.
6 Q. Where did the manhole discharge to?
7 A. The manhole discharged -- lead to a
8 tile and discharged out of the tile to Avon drainage
9 ditch.
10 Q. Did the 1987 NPDES permit cover
11 discharges or allow discharges to the Avon drainage
12 ditch?
13 A. No, it didn't.
14 Q. Mr. Kallis, I'm going to direct your
15 attention to Exhibit No. 21 in the binder. Can you
16 please take a moment to look through that?
17 (Witness perusing
18 the document.)
19 A. Well, there's a lab sheet for my
20 request for a sampling of oil and grease and the
21 results attached, and there's also results for
22 organics and pesticide sample that was collected.
23 Q. Okay. Let's break this down a little
24 bit. You say samples were collected. What samples
L.A. REPORTING (312) 419-9292
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1 are you referring to?
2 A. Samples for oil and grease and samples
3 for organics and pesticide.
4 Q. Collected where?
5 A. At a discharge tile to Avon drainage
6 ditch.
7 Q. Okay. We'll come back to that in a
8 moment. But did you collect those samples?
9 A. Yes.
10 Q. When did you collect them?
11 A. I collected them on the morning of
12 March 1, 1995.
13 Q. Why did you collect those samples?
14 A. In response to an ongoing
15 investigation as to the source of contaminants,
16 obvious contaminants, that were discharged into the
17 Avon drainage ditch.
18 MR. JAWGIEL: Your Honor, I'm going
19 to object to the relevance of this whole line
20 of questioning. There's no relevance
21 whatsoever at this point in time. There's no
22 enforcement action that has been established
23 regarding both this inspection report and the
24 prior ones from 1987. It has no relevance in
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1 this case.
2 HEARING OFFICER SUDMAN: Your
3 objection is noted, but I'm going to allow
4 it. I think it's relevant.
5 BY MR. MURPHY:
6 Q. What did you do when you first went
7 out to the Avon drainage ditch that day?
8 A. I believe I parked my car over by the
9 railroad station. I had a hand-held cooler which
10 was able to hold a bottle for organics and a bottle
11 for oils and grease and I walked along the ditch up
12 to the tile, took out the bottles, took the sample.
13 I did use latex gloves just as protection.
14 I marked the bottles -- actually,
15 I marked them before I even took the sample with the
16 marker, put them back in the cooler, transported
17 them back to the office.
18 Q. Where exactly did you collect the
19 samples?
20 A. From a farm tile discharge at the Avon
21 drainage ditch.
22 Q. Okay. Now, where is that -- switching
23 gears now for a moment to Exhibit No. 32, which is
24 the map you looked at previously. Can you describe
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1 for the Board where that farm tile is as it connects
2 to Avon drainage ditch on this map?
3 A. It's approximately maybe a little
4 north of where the two Ps, an approximate.
5 Q. Okay. So the map has a designation of
6 the approximate location of the subject property?
7 A. Right.
8 Q. And you're saying that the farm tile
9 was located just north of where those two Ps appear
10 on that map?
11 A. To the best of my recollection, yes.
12 Q. What did you observe when you
13 collected the sample?
14 A. I observed a heavy oil sheen and a
15 heavy oily substance discharging from the farm tile
16 and it was causing an oil sheen, very concentrated.
17 Q. What did the water upstream from the
18 farm tile in the Avon drainage ditch look like?
19 A. It was either partially frozen or
20 mildly turbid. I did not see any sign of oil or
21 grease or any contaminants so to speak upstream.
22 Q. But you did see -- strike that.
23 What did you see downstream from
24 the farm tile?
L.A. REPORTING (312) 419-9292
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1 A. A heavy oil sheen.
2 Q. What did you see coming out of the
3 farm tile?
4 A. A heavy oily substance even more
5 concentrated than in the creek.
6 Q. Can you please turn to the page of the
7 sampling report where it says oil gravimetric.
8 MR. JAWGIEL: I'm sorry. Where are
9 you referring?
10 MR. MURPHY: Back on Exhibit 21.
11 MR. JAWGIEL: Thank you.
12 BY MR. MURPHY:
13 Q. Can you explain what oil gravimetric
14 means?
15 A. It's a -- well, gravimetric is, as I
16 understand it, the way the analysis is done. It's
17 how they determine the concentration of oil and
18 grease in that sample.
19 Q. Okay. After you collected the
20 samples, did you send them out for analysis?
21 A. Yes.
22 Q. Did you get the sample analysis back?
23 A. Yes.
24 Q. What were the results?
L.A. REPORTING (312) 419-9292
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1 A. The concentrations of oil gravimetric
2 was 664 milligrams per liter.
3 Q. Thank you.
4 Getting back now to your
5 observations when you collected the samples, the
6 observations you made at Avon drainage ditch, you
7 mentioned certain things that you saw. Did you
8 notice any smells?
9 A. I did note a petroleum-based smell.
10 Q. Where?
11 A. Near the farm tile.
12 Q. Would you associate that with what was
13 coming out of the farm tile?
14 A. Yes, I did.
15 Q. Okay. Is the sampling report a
16 document used in the ordinary course of Illinois EPA
17 business? I'm referring to Exhibit 21.
18 A. Yes.
19 Q. Is Exhibit 21 kept in the ordinary
20 course of Illinois EPA business?
21 A. Yes.
22 Q. Is that a true and accurate copy of
23 the sampling report?
24 A. Yes.
L.A. REPORTING (312) 419-9292
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1 Q. Thank you.
2 A. The only thing I might say that
3 doesn't appear to be here is the cover sheet where I
4 requested the organics.
5 Q. But everything else was true and
6 accurate?
7 A. Right.
8 Q. Okay. Mr. Kallis, I'd like to direct
9 your attention to Exhibit No. 22 in the binder.
10 Please take a moment to look through that document.
11 A. Yes. It's a legal support inspection
12 dated March -- well, no, not dated. It's a legal
13 support inspection. The inspection occurred on
14 March 22, 1995.
15 Q. So that report documents the
16 inspection that occurred on March 22,
17 '95?
18 A. Yes.
19 Q. Did you sign this memo?
20 A. Yes, I did.
21 Q. You also prepared this memo?
22 A. Yes.
23 Q. Is this a document used in the
24 ordinary course of normal EPA business?
L.A. REPORTING (312) 419-9292
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1 A. Yes, it is.
2 Q. Is it a document kept in the ordinary
3 course of EPA business?
4 A. Yes.
5 Q. Is that a true and accurate copy of
6 that report?
7 A. Yes.
8 Q. Okay. Now, with respect to the
9 inspection you conducted on March 22, 1995, did you
10 talk to anyone on behalf of Skokie Valley Asphalt
11 during your visit that day?
12 A. Yes. I talked to Richard Frederick.
13 Q. Okay. What did Mr. Frederick tell you
14 and what -- strike that.
15 What did you say to him and what
16 did he say to you?
17 A. Well, we walked all over the property.
18 We looked into that manhole that at one time they
19 did pump into, and we walked through the property
20 and there did not appear to be any overt
21 contamination.
22 Q. You mentioned the manhole. Did
23 Mr. Frederick tell you where that manhole discharged
24 to?
L.A. REPORTING (312) 419-9292
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1 A. No.
2 Q. Did Mr. Frederick say anything to you
3 about underground storage tanks on the Skokie Valley
4 Asphalt property?
5 A. I asked them if there were any and at
6 the time he said no.
7 Q. Why did you ask Mr. Frederick -- or
8 Richard Frederick if there were underground storage
9 tanks on the Skokie Valley Asphalt property?
10 A. An employee of the Lake County Health
11 Department had communicated to me that there were.
12 Q. Were there any other reasons why you
13 would suspect there to be an underground storage
14 tank on that property?
15 A. Just from the nature of the kind of
16 business they have and -- yeah.
17 Q. Okay. Did you observe anything about
18 contaminated water on that day?
19 A. Yes. I did note and I do remember
20 that the discharge was still occurring at the Avon
21 drainage ditch. One update that did occur is that
22 the Grayslake Fire Department did put in some booms
23 in the creek downstream.
24 Q. What are booms?
L.A. REPORTING (312) 419-9292
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1 A. Booms are, again, sort of an oil
2 separator, only a portable one. They are installed
3 to absorb oil that's moving on the surface.
4 Q. Did you again observe oil in the Avon
5 drainage ditch?
6 A. Yes.
7 Q. Was that coming again from the farm
8 tile?
9 A. Yes.
10 Q. What is the purpose of absorbing booms
11 used in that fashion?
12 A. Again, to collect oil that's flowing
13 in a ditch.
14 Q. Prior to it flowing anywhere else?
15 A. Right.
16 Q. Okay. Mr. Kallis, I'd like to direct
17 your attention to tab 23 in the binder. Take a
18 moment to look through that document.
19 (Witness perusing
20 the document.)
21 A. Okay. There was a memo to
22 Chuck Gunnarson of the division of legal
23 counsel from myself dated May 12, 1995.
24 Q. Chuck Gunnarson is another EPA
L.A. REPORTING (312) 419-9292
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1 employee?
2 A. Yes. He's employed with the division
3 of local counsel.
4 Q. Is this document used in the ordinary
5 course of Illinois EPA business?
6 A. Yes.
7 Q. Is this document kept in the ordinary
8 course of Illinois EPA business?
9 A. Yes.
10 Q. Is this a true and accurate copy of
11 that report?
12 A. Yes.
13 Q. Okay. Turning your attention now to
14 tab 24 in the binder, take a moment to go through
15 that document.
16 (Witness perusing
17 the document.)
18 A. Okay. Yes, it was a legal support
19 inspection dated December 5, 1995 by myself.
20 Q. The inspection was dated December 5,
21 '97?
22 A. That's when the inspection was
23 conducted.
24 Q. Does this report memorialize your
L.A. REPORTING (312) 419-9292
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1 observations from that inspection?
2 A. In the facility site review, that's
3 correct.
4 Q. Okay. Is this document used in the
5 ordinary course of Illinois EPA business?
6 A. Yes.
7 Q. Is this a document kept in the
8 ordinary course of Illinois EPA business?
9 A. Yes.
10 Q. Is this a true and accurate copy of
11 that report?
12 A. Yes.
13 Q. Okay. Now, was Skokie Valley Asphalt
14 still discharging to waters of the State in 1997?
15 MR. JAWGIEL: I'm going to object to
16 the foundation, your Honor.
17 THE WITNESS: Yes.
18 HEARING OFFICER SUDMAN: Overruled.
19 BY MR. MURPHY:
20 Q. Your answer was yes?
21 A. Yes. Sorry.
22 Q. Did Skokie Valley Asphalt have an
23 NPDES permit to do so at the time?
24 A. No, it didn't.
L.A. REPORTING (312) 419-9292
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1 MR. MURPHY: Madam Hearing Officer,
2 may I have a moment?
3 HEARING OFFICER SUDMAN: Yes.
4 (Brief pause.)
5 MR. MURPHY: Madam Hearing Officer, at
6 this time I have no more questions.
7 HEARING OFFICER SUDMAN: Thank you.
8 Let's go off the record for just a
9 moment.
10 THE REPORTER: Sure.
11 (Whereupon, a discussion
12 was had off the record.)
13 HEARING OFFICER SUDMAN: Okay. We're
14 back on the record just to say that we will
15 be taking a lunch hour. We will restart at
16 1:15. It is now 12:15, so please be back in
17 one hour.
18 MR. JAWGIEL: If I may also just
19 state that we did state that we will ask
20 Mr. Kallis some questions, but we are
21 reserving our right to call him in our case
22 in chief pursuant to our 237 notice.
23 HEARING OFFICER SUDMAN: Okay. Thank
24 you.
L.A. REPORTING (312) 419-9292
164
1 (At 12:15 p.m. a
2 luncheon recess was taken to
3 1:15 p.m.)
4 HEARING OFFICER SUDMAN: We'll go back
5 on the record; it is 1:15. We are back from
6 lunch.
7 Mr. Kallis, you may please take
8 the witness stand again, and I will remind
9 you that you are still under oath.
10 Mr. Jawgiel, your witness, please.
11 MR. JAWGIEL: Thank you.
12 Just so the record is clear, we
13 may dive into some areas that we objected to
14 for our motion in limine. I'm not waiving
15 those objections. Given the ruling of the
16 hearing officer, I think I'm obligated to go
17 into those subject matters.
18 HEARING OFFICER SUDMAN: Okay.
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
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1 AFTERNOON SESSION
2 CHRIS KALLIS,
3 called as a witness herein, having been previously
4 duly sworn, was examined and further testified as
5 follows:
6 C R O S S - E X A M I N A T I O N
7 BY MR. JAWGIEL:
8 Q. Good afternoon, sir.
9 Mr. Kallis, you had mentioned one
10 incident when you experienced some hostility in
11 going out to the site together and sampling and was
12 unable to do so at some point in time and I've
13 looked through your reports and I don't see any
14 other notations regarding that. Was that a single
15 incident?
16 A. It was a single incident.
17 Q. And how many times had you been out to
18 the facility, the Skokie Valley Asphalt facility --
19 if I use Skokie Valley, you understand what we're
20 talking about -- since that incident when there was
21 hostility?
22 A. There's been none.
23 Q. How many times had you been out there
24 three, four, five times since that incident?
L.A. REPORTING (312) 419-9292
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1 A. I believe even more than that and I
2 had not experienced hostility.
3 Q. And you've taken samples during those
4 other visits, have you not?
5 A. At times.
6 Q. At any point in time when you went out
7 to the actual property of Skokie Valley, did you
8 ever have a warrant?
9 A. No.
10 MR. MURPHY: Objection, relevance.
11 HEARING OFFICER SUDMAN: I'll allow
12 it.
13 THE WITNESS: No, sir, I haven't.
14 BY MR. JAWGIEL:
15 Q. Now, do you have a big book in front
16 of you?
17 A. Yes, I do.
18 Q. Now, just so we have an understanding,
19 you realize that in the area where Skokie Valley was
20 located there were other properties that were not
21 Skokie Valley; is that correct?
22 A. They are surrounded by other
23 properties, that's correct.
24 Q. There's actually a farm that is in
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1 between Skokie Valley property and the Avon drainage
2 ditch; is that correct?
3 A. That's correct.
4 Q. And that's an active farm, if you
5 will?
6 A. The last I visited there, they were
7 farming on it.
8 Q. Okay. And there's also -- I believe
9 there's railroad tracks that run between the Skokie
10 Valley property and the Avon drainage ditch as well;
11 is that correct?
12 A. Between?
13 Q. Well, somewhere in that vicinity; is
14 that correct?
15 A. There are railroad tracks, but if
16 you're asking me of the railroad tracks between
17 where the tile was and the facility, I would say no.
18 But yes, there are railroad tracks there.
19 Q. And is there a car dealership -- in
20 the general vicinity of this within, let's say, a
21 two-mile radius of Skokie Valley, is there a car
22 dealership in that area?
23 A. Yes. There's a car dealership on
24 Route 120, which is to the north of Skokie Valley
L.A. REPORTING (312) 419-9292
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1 Asphalt. The last I saw there was one there.
2 Q. Okay. And what other types of
3 entities or businesses or anything are within this
4 two-mile radius of Skokie Valley?
5 A. Two miles extends into downtown, so
6 there's all sorts of retail businesses and diners
7 there and things like that.
8 Q. Okay. I think you had indicated that
9 the first time that you had noticed any discharge
10 out of the farm tile was when you were out there
11 when?
12 A. The first time that I ever observed a
13 discharge from the farm tile, that I ever actually
14 looked into a discharge of the farm tile was in that
15 1987 incident.
16 Q. Okay, the 1987 incident.
17 Now, with respect to the 1987
18 incident, was there any prosecution from that?
19 A. No.
20 Q. Did you recommend any prosecution?
21 MR. MURPHY: Objection. Madam Hearing
22 Officer, this witness -- there's been no
23 foundation that this witness has anything to
24 do with recommendations made to the Illinois
L.A. REPORTING (312) 419-9292
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1 EPA or the Attorney General's Office about
2 whether -- the filing of prosecution against
3 potential defendants. It's outside the
4 scope; it's not relevant either.
5 MR. JAWGIEL: The scope of his duties
6 would have been established by direct
7 examination and it was very loose. So
8 essentially it was very loose, so the door is
9 open to allow me to ask him these questions.
10 HEARING OFFICER SUDMAN: You're asking
11 him if he recommended it?
12 MR. JAWGIEL: Right.
13 HEARING OFFICER SUDMAN: I'll allow
14 it.
15 THE WITNESS: I recommended a
16 compliance inquiry letter of some type if my
17 memory serves me correctly.
18 BY MR. JAWGIEL:
19 Q. Okay. And was there compliance?
20 A. Yeah, I think there was.
21 Q. How long after you first recognized
22 that there was this oily substance back in 1987?
23 MR. MURPHY: Madam Hearing Officer, I
24 thought I heard him say was there
L.A. REPORTING (312) 419-9292
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1 compliance -- or I didn't understand the
2 question. Can I have him repeat the
3 question, please?
4 HEARING OFFICER SUDMAN: Would you
5 please repeat the question?
6 MR. JAWGIEL: Sure.
7 BY MR. JAWGIEL:
8 Q. Was there compliance by Skokie Valley
9 back in 1987 with respect to the compliance letter
10 that you recommended?
11 A. I don't understand your question. I'm
12 sorry.
13 HEARING OFFICER SUDMAN: I don't
14 either. Are you asking was there a compliance
15 letter?
16 MR. JAWGIEL: No.
17 BY MR. JAWGIEL:
18 Q. You had indicated that a compliance
19 letter was something you recommended, is that
20 correct, after you realized what happened in 1987?
21 MR. MURPHY: Well, now I have a
22 different objection. There still has been no
23 foundation that one was actually sent based
24 on the recommendation.
L.A. REPORTING (312) 419-9292
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1 HEARING OFFICER SUDMAN: Well, that's
2 true. I didn't get that leap either. Do you
3 want to go back a little?
4 BY MR. JAWGIEL:
5 Q. Well, was there a compliance letter
6 sent with respect to the incident back in 1987?
7 A. To the best of my recollection, I
8 think was, yes.
9 Q. Okay. Now, was there compliance with
10 that letter by Skokie Valley back in 1987?
11 A. Sir, are you asking me that after that
12 incident did a similar incident take place?
13 Q. No. I'm asking you that after that
14 incident in 1987 after the compliance letter that
15 you believe was sent out was sent out whether or not
16 Skokie Valley complied with the recommendations of
17 the letter in your opinion?
18 A. Well, a compliance inquiry letter -- a
19 compliance inquiry letter, what it does is asks --
20 we don't send those out anymore. We send out
21 violation notices, but it serves the same purpose.
22 It gave them a notice that they were in violations
23 that day and what they're going to do to remedy that
24 in the future and --
L.A. REPORTING (312) 419-9292
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1 MR. JAWGIEL: I would ask that his
2 answer be struck as nonresponsive.
3 HEARING OFFICER SUDMAN: Mr. Kallis --
4 HEARING OFFICER SUDMAN: I'm sorry.
5 MR. MURPHY: He did respond.
6 THE WITNESS: I'm sorry --
7 HEARING OFFICER SUDMAN: That's okay.
8 I realize you're giving a lot of background
9 information but he really didn't ask for it,
10 so would you please repeat the question that
11 you did ask?
12 MR. JAWGIEL: I don't quite remember.
13 If I could have it read back --
14 HEARING OFFICER SUDMAN: Would the
15 court reporter please read it back?
16 (Whereupon, the requested
17 portion of the record
18 was read accordingly.)
19 THE WITNESS: Since I don't have the
20 letter in front of me, I don't think I can
21 answer that. I'm sorry.
22 HEARING OFFICER SUDMAN: That's okay.
23 If you don't know, just say you don't know.
24
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1 BY MR. JAWGIEL:
2 Q. Well, let me ask you this question:
3 What month was it that you first noticed this
4 incident in 1987?
5 A. I noticed it two days after the
6 complaint. I think it was in March. I had my
7 note --
8 Q. Okay. Did you go out there in April
9 of 1987 to find out if there was still a discharge
10 that you recognized in March of 1987?
11 A. I don't remember if there was a field
12 follow-up right after that.
13 Q. Okay. So you did nothing to follow-up
14 with respect to the discharge in 1987 as you sit
15 here today?
16 MR. MURPHY: Objection, misconstrues
17 the prior testimony. He says he doesn't
18 remember.
19 MR. JAWGIEL: It's cross-examination,
20 your Honor. I'm giving a lot of latitude.
21 HEARING OFFICER SUDMAN: That's true.
22 I'll allow it.
23 THE WITNESS: Repeat.
24 MR. JAWGIEL: Sure.
L.A. REPORTING (312) 419-9292
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1 BY MR. JAWGIEL:
2 Q. Is it fair to say that you did no
3 follow-up whatsoever with respect to the discharge
4 that you identified in March of 1987?
5 A. No, because I recommended to our
6 regional manager that a compliance inquiry letter be
7 written.
8 Q. Okay. Beyond the recommendation of a
9 compliance letter, did you do any other follow-up
10 with respect to the March 1987 discharge as you
11 identified?
12 A. I don't remember.
13 Q. Mr. Kallis, we talked a little bit
14 about your educational background. Do you have a
15 degree in chemistry?
16 A. No, sir.
17 Q. Have you ever conducted a chemical
18 analysis test of any samples that you have taken?
19 MR. MURPHY: Madam Hearing Officer, I
20 have an objection on the grounds of
21 relevancy. I'll have a standing objection to
22 this line of questioning.
23 HEARING OFFICER SUDMAN: Okay.
24 MR. JAWGIEL: It goes to his
L.A. REPORTING (312) 419-9292
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1 qualifications.
2 HEARING OFFICER SUDMAN: And it also
3 goes to evidence on the motions that he
4 filed, so I'm going to allow it.
5 THE WITNESS: I've done field analyses
6 for dissolved oxygen using a kit and acid
7 bottles, I've done that. Other than that,
8 using hot kits for determining pH, no.
9 BY MR. JAWGIEL:
10 Q. Okay. So with respect to the reports
11 that we see -- the various chemical analysis reports
12 we see attached to your memos, you don't know
13 whether or not that information is accurate or not;
14 is that correct?
15 A. Are you talking about the analysis,
16 the samples I took from Skokie Valley Asphalt?
17 Q. The analysis you took from the Avon
18 drainage ditch -- from the farm tile. There was an
19 analysis that was done to that sample, but you don't
20 know whether or not those analyses values are
21 accurate or not, do you?
22 A. No.
23 Q. I want to refer you to Exhibit 22.
24 Take a look at Exhibit 22 and in particular I'm
L.A. REPORTING (312) 419-9292
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1 going to refer you to your summary of findings.
2 Now, was it your opinion as you wrote here that the
3 present contamination in the Avon drainage ditch is
4 pure speculation?
5 A. At that time, yes.
6 Q. And that your best guess is that the
7 contamination is historical?
8 A. I did write that, yes.
9 Q. And when you said historical, you were
10 talking about that in 1988, there was a closure of
11 that particular tile; is that correct?
12 A. Yes.
13 Q. Did you take any samples of any
14 material whatsoever that were on the Skokie Valley
15 site in March of 1995 or after to analyze them to
16 compare it to what was in the Avon drainage ditch?
17 A. No, sir.
18 Q. At no point in time are you aware of
19 anyone analyzing any materials that were present on
20 the Skokie Valley site at the time that there was
21 this discharge from the farm tile into the Avon
22 drainage ditch; isn't that correct?
23 A. That's correct.
24 Q. Nobody as far as you're aware did a
L.A. REPORTING (312) 419-9292
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1 chemical analysis in order to determine whether or
2 not the materials that were present on the Skokie
3 Valley site contemporaneous to what was going on in
4 the Avon drainage ditch in 1995 regarding this
5 discharge would be the same types of material; is
6 that correct?
7 A. That was a long question. Can you
8 repeat it?
9 Q. Sure and maybe I can shorten it.
10 You're not aware of anybody or any
11 entity taking a sample from the Skokie Valley site
12 as it existed at the time of this discharge into the
13 Avon drainage ditch in 1995 in order to compare the
14 materials that were on the site to what was in the
15 ditch?
16 A. That's correct.
17 Q. Sir, isn't it true that you are aware
18 that other drain tiles may contribute into this farm
19 tile where this discharge was coming from; is that
20 correct?
21 A. That's true.
22 Q. And you're not quite sure what other
23 contributories there may be into this drain tile
24 because you never looked into what those
L.A. REPORTING (312) 419-9292
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1 contributory tiles may be; is that correct?
2 A. I tried looking into it but it's very
3 difficult.
4 Q. So as you sit here today, you don't
5 know whether or not what you pulled out of the farm
6 tile back in March of 1995 was actually some
7 material that came from Skokie Valley, isn't that
8 correct, other than -- it could come from other
9 sources as well?
10 A. It's technically possible. That's
11 correct.
12 Q. Did you go to the car dealership
13 that's in this area to determine whether or not
14 there may have been an oily discharge in its manhole
15 cover?
16 A. No.
17 Q. Did you go to the farm and see if
18 there was oily discharge in the farm's manhole cover
19 at the time that you were out in Skokie Valley in
20 March of 1995?
21 A. Yes.
22 Q. Did you find anything?
23 A. No.
24 Q. And as you already said, you went to
L.A. REPORTING (312) 419-9292
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1 Skokie Valley, looked at their manhole, and you
2 didn't see anything that was consistent to what was
3 in the Avon Creek; is that correct?
4 A. That's correct.
5 Q. Did you take any soil borings of the
6 land on the Skokie Valley site to its border to
7 determine whether or not there may have been oil
8 that leached out of this drain tile into the soil?
9 A. No, sir.
10 Q. Now, with respect to oily products,
11 you've been using the term oil. With respect to
12 what you saw in March of 1995 coming out of this
13 drain tile, you don't know whether it was motor oil,
14 do you, sir?
15 A. Not by what I saw.
16 Q. You don't know whether or not it was
17 gasoline or a gasoline-based product, do you, sir?
18 A. The samples that I took out of the
19 tile, I did take organics and it came up with
20 organics that you could associate with
21 petroleum-related substances.
22 Q. Okay. Petroleum related substances
23 could be fertilizer, isn't that correct? It's a
24 petroleum-based substance, isn't it?
L.A. REPORTING (312) 419-9292
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1 A. Some are.
2 Q. It could be motor oil? That's a
3 petroleum base?
4 A. Yes.
5 Q. It could be diesel fuel; is that
6 correct?
7 A. That's correct.
8 Q. It could be heating oil; is that
9 correct?
10 A. Yes.
11 Q. It could be some household products
12 that have oil -- or petroleum-based solvents in
13 them?
14 A. That's correct.
15 Q. And as we sit here today, you can't
16 tell us which product actually was present in that
17 sample among those list of products; isn't that
18 correct?
19 A. I can only tell you what organics were
20 found in the analysis that was given to me.
21 Q. But that's not my question, sir.
22 You can't tell me whether it was
23 gasoline or a gasoline-based product or oil for a
24 motor, for a car or truck or whatever the case may
L.A. REPORTING (312) 419-9292
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1 be, diesel fuel or any other products we just
2 listed, correct?
3 A. That's correct.
4 Q. Has it been your experience, sir, that
5 when you put -- well, let's take a step back.
6 We keep talking about this drain
7 tile. A drain tile was made out of what, was it
8 made out of ceramic, was it made out of metal, was
9 it made out of both? What was your understanding of
10 the farm drain tile that you took this substance out
11 of?
12 A. I don't know all of the -- I know some
13 of it was made out of metal.
14 Q. Okay. The part that you could see
15 coming out of the ground was made out of metal; is
16 that correct?
17 A. Yes.
18 Q. Has it been your experience that after
19 you have this external metal that's generally the
20 part that's under the ground is made out of some
21 sort of ceramic or terra-cotta material?
22 A. Tile, yes, sometimes.
23 Q. Okay. Now, has it been your
24 experience, sir, that when you put an oily substance
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1 in a terra-cotta or clay type of tile, that has a
2 tendency of leaking out because it's a porous
3 material?
4 A. I haven't had too much experience but
5 I know what you're saying.
6 Q. Well, it can, can it not?
7 A. I'm not sure on that one. I'm sorry.
8 Q. Okay. Isn't it true, sir, you have no
9 information that Larry Frederick put the oil into
10 the drain tile that eventually went out into the
11 Avon drainage ditch?
12 A. I have no information that Larry
13 Frederick put oil into the drainage ditch.
14 Q. You have no information that anyone at
15 Larry Frederick's direction did so either; isn't
16 that correct?
17 A. That's correct.
18 Q. You have no information whatsoever
19 that Richard Frederick actually put the substance
20 that you collected out of the farm tile in March of
21 1995?
22 A. That's correct.
23 Q. You have no information whatsoever
24 that anyone under Richard Frederick's authority
L.A. REPORTING (312) 419-9292
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1 placed the oily substance that you identified in
2 March of 1995 into the farm tile; is that correct?
3 A. That's correct.
4 Q. You have no information that would
5 lead you to believe that anyone from Skokie Valley,
6 any of their employees, actually placed the
7 substance that was in the drain tile that you
8 collected in March of 1995; is that correct?
9 A. That's correct.
10 Q. I want to refer you to Exhibit 23.
11 It's your memo dated May 12, 1995. Do you have that
12 before you, sir?
13 A. Yes, the May 12, 1995 memo.
14 Q. Okay. Now, in the second full
15 paragraph we see that you referred to a report by a
16 Betty Lavis from the USEPA and it's attached to this
17 document, isn't that correct, when you drafted it
18 because you indicate attached is a report by
19 Betty Lavis? It was your intention to attach it; is
20 that correct?
21 A. Yes.
22 Q. Now, Exhibit 24 doesn't contain the
23 attachment, does it, sir?
24 A. No, it doesn't.
L.A. REPORTING (312) 419-9292
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1 Q. Okay. But if we look at Exhibit 25,
2 which the State didn't present to you -- take a look
3 at it.
4 A. Yes.
5 Q. Exhibit 25 is that memo from
6 Betty Lavis that you refer to in your report, which
7 is Exhibit 23; is that correct?
8 A. I believe so, yes.
9 Q. So an accurate representation of
10 Exhibit 23 would be including the attachment of
11 Exhibit 25, isn't that correct, to make sure that
12 the document is complete and accurate, right?
13 A. That's a legal determination. I'm not
14 sure I know where you're coming from.
15 Q. Well, when you submitted your report
16 in --
17 A. '95, I know.
18 Q. -- May 12 of '95, you attached
19 Ms. Lavis' report to it as a supporting document to
20 what you wrote in your memo?
21 A. Yes, I did.
22 Q. And you relied upon what you saw in
23 Betty Lavis' report for the basis of your opinions
24 that we see here?
L.A. REPORTING (312) 419-9292
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1 A. Yes, sir.
2 Q. And that memo along with your memo --
3 when I say that memo, I'm talking about
4 Betty Lavis' memo -- and your memo were kept in the
5 ordinary course of business, were they not?
6 A. Yes, as an attachment to that memo.
7 Q. Right. And as we've already
8 established, as an attachment to that memo, that
9 type of document at the Illinois EPA would have been
10 kept in the ordinary course of business as an
11 attachment to your memo; isn't that correct?
12 A. Yes.
13 Q. And what we see in Exhibit 25 is
14 actually a true and accurate copy of the attachment
15 that you attached to your memo of May 12, 1995?
16 A. You got it.
17 Q. Okay. Now, you used Betty Lavis'
18 report as a basis for your conclusion that this oily
19 substance, which we don't know what it is, came from
20 the Skokie Valley site; is that correct?
21 A. Yes, sir. I believe that's correct.
22 Q. Do you see anywhere in her report
23 where she makes the statement that this substance
24 definitively came from the Skokie Valley site?
L.A. REPORTING (312) 419-9292
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1 A. No.
2 Q. So it was your interpretation of what
3 Ms. Lavis wrote that the oily substance came from
4 the Skokie Valley site; isn't that correct?
5 A. That's correct.
6 Q. But that was your interpretation
7 without any additional testing, without any soil
8 borings, without taking sampling from the Skokie
9 Valley site, without doing anything else; is that
10 correct?
11 A. That's correct.
12 Q. And did you find the reports and the
13 memorandum of Betty Lavis to be reliable documents
14 for basing your opinion regarding what was going on
15 in the Skokie Valley site at the time of this
16 discharge into the Avon drainage ditch? I'm talking
17 about the discharge in 1995.
18 MR. MURPHY: Your Honor, I object.
19 I'm not sure I understand the question; it
20 was a long one.
21 HEARING OFFICER SUDMAN: Are you
22 asking if he relied on the Lavis memo?
23 MR. JAWGIEL: What I'm asking him is
24 something a little bit more specific. What
L.A. REPORTING (312) 419-9292
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1 I'm asking him is in his opinion, are these
2 types of documents from the USEPA and
3 Betty Lavis reliable sources of information
4 to rely on to base his opinion.
5 HEARING OFFICER SUDMAN: Okay.
6 THE WITNESS: I considered it so.
7 BY MR. JAWGIEL:
8 Q. Towards the end of your direct
9 testimony, you identified a memo, which I believe
10 was December 5, 1997 and it's
11 Exhibit 24 -- if I can refer you to that exhibit --
12 A. You're talking about the legal support
13 inspection, correct?
14 Q. Field support inspection, yeah.
15 Now, let's just get a little
16 understanding of why you did this legal support
17 inspection. Was this done in order to determine
18 whether or not an NPDES permit would be issued to
19 Skokie Valley?
20 A. No, sir.
21 Q. When you referred to that there was a
22 discharge in this December 1997 report, were you
23 talking about discharge of storm water? What
24 contaminants are you talking about that you claim
L.A. REPORTING (312) 419-9292
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1 Skokie Valley was putting into the Avon drainage
2 ditch in this particular period of time that formed
3 the basis of the
4 December 5, 1997 inspection report?
5 A. Well, the basis of this report was,
6 one, an explanation of the NPDES permit status; two,
7 the history; three, the facility site review of what
8 I saw that day and then four, a summary of findings.
9 Q. Okay. I thought you had given the
10 opinion on direct examination that based on this
11 report, it was your opinion that Skokie Valley was
12 continuing to discharge material into the Avon
13 drainage ditch, is that a correct characterization
14 of your testimony?
15 A. I don't think so.
16 Q. Okay. So in your opinion, when did
17 Skokie Valley stop discharging materials prior to
18 December 5, 1997 into the Avon drainage ditch?
19 A. To the best of my knowledge, it was
20 soon after Mr. Huff was hired.
21 Q. Okay. So that would be back in 1995?
22 A. Yes.
23 Q. And you're not aware of any problems
24 with respect to Skokie Valley discharging material
L.A. REPORTING (312) 419-9292
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1 into the Avon drainage ditch since 1995; isn't that
2 correct?
3 A. The Avon drainage ditch, that's
4 correct.
5 Q. Are you aware of Skokie Valley --
6 well, let me just take a step back. Strike that
7 question, please. Let me take a step back.
8 You had indicated that the report,
9 which is Exhibit 24, has to do with the NPDES
10 permit?
11 A. Right.
12 Q. Okay. And it was your understanding
13 that at the time you wrote this report, Skokie
14 Valley had applied for a renewal of its permit; is
15 that correct?
16 A. There had been a renewal application
17 in, that's correct.
18 Q. And you were going out to the site to
19 determine what in December 5 of 1997?
20 A. That's what the facility site review
21 is, a field verification of the day.
22 Q. It was to determine what, sir? When
23 you say a field site verification --
24 A. Well, it was just to determine what
L.A. REPORTING (312) 419-9292
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1 was happening on that day. And I have a summary of
2 findings that they were discharging the waters to
3 the State. I didn't say Avon drainage ditch without
4 an NPDES permit.
5 Q. Okay. When you say they were
6 discharging water into the State --
7 A. Into waters of the State.
8 Q. -- into waters of the State, what were
9 they discharging?
10 A. They were discharging out of their
11 NPDES outfall, which was no longer permitted under
12 an NPDES permit.
13 Q. Okay. Did you test that?
14 A. I don't believe I did that day, no.
15 Q. Okay. So you don't have any test
16 results to determine whether or not the water that
17 was being discharged when you were out at the site
18 actually had contaminants in it?
19 MR. MURPHY: Madam Hearing Officer, I
20 have an objection as to relevance.
21 MR. JAWGIEL: They brought this up.
22 They brought this whole line up about --
23 MR. MURPHY: If they are discharging
24 without a permit to Grayslake, that's
L.A. REPORTING (312) 419-9292
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1 discharging without a permit and this was a
2 violation by itself.
3 MR. JAWGIEL: It goes to whether or
4 not there's some sort of contaminant cause.
5 MR. MURPHY: There's no requirement
6 for impact to be found in any of this.
7 That's a red herring that should not be part
8 of these proceedings.
9 MR. JAWGIEL: It goes to 42H; clearly
10 it goes to 42H. It goes to environmental
11 impact.
12 HEARING OFFICER SUDMAN: Well, I'm
13 going to allow it.
14 MR. JAWGIEL: Thank you.
15 HEARING OFFICER SUDMAN: The Board can
16 weigh your objection accordingly.
17 BY MR. JAWGIEL:
18 Q. Okay. You have no test results from
19 this particular visit you had of Skokie Valley back
20 in December of 1997 which would indicate to you that
21 there were any contaminants in the discharge water
22 that you identified?
23 A. I didn't take any samples that day.
24 Q. No samples?
L.A. REPORTING (312) 419-9292
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1 A. No samples that day.
2 Q. Okay. When was the last time you took
3 samples of Skokie Valley with respect to the
4 discharge water?
5 A. I believe it was in '92 where we first
6 established that they had an accessible sampling
7 point. Early in '92, I think, I took the sample.
8 Q. Okay. And that was the last time you
9 took a sample?
10 A. That's correct.
11 Q. Now, with respect to this accessible
12 point, you were able to take samples from this site
13 in 1992; is that correct?
14 A. Yes.
15 Q. Where did you take the sample from?
16 A. From a spigot that's in the manhole
17 that their lagoon is connected to, there second
18 cell.
19 Q. And who put that spigot in?
20 A. I don't know.
21 Q. Was it there back in 1991?
22 A. I don't know.
23 Q. Was it there in 1992?
24 A. It was in '92 when I was there.
L.A. REPORTING (312) 419-9292
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1 Q. Okay. Was it there in 1990?
2 A. I don't know.
3 Q. Was it there in 1989?
4 A. Don't know.
5 Q. Was it there in 1988?
6 A. I don't know when they got that
7 easement. I don't know.
8 Q. Was it there in 1987?
9 A. I don't believe so.
10 Q. So you don't know if it was between
11 1988 or 1987, fair statement?
12 A. Fair statement? The first time I was
13 able to establish -- let's go back. Are you going
14 back to the discharge itself to Grayslake?
15 Q. No. I'm talking about spigot.
16 A. Well, the spigot -- I first got -- for
17 one thing, when they actually got the easement to
18 put in this outfall underneath the railroad tracks,
19 that's first, and then second is to get an
20 acceptable sampling
21 point. In previous inspections when you opened up
22 the manhole, there was a pipe going through the
23 manhole but --
24 MR. JAWGIEL: Your Honor, I would ask
L.A. REPORTING (312) 419-9292
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1 that his response be stricken from the record
2 as nonresponsive.
3 MR. MURPHY: Your Honor, absolutely
4 not. He's responding. He's trying to figure
5 out when the spigot was there. He's trying
6 to say during certain inspections on certain
7 dates, it wasn't there. It's exactly
8 responsive.
9 HEARING OFFICER SUDMAN: I mean, I'm
10 going to allow his answer to stand but can we
11 just cut to the chase here?
12 BY MR. JAWGIEL:
13 Q. You don't know when the spigot was
14 installed, do you, sir?
15 A. I was only -- you're right. I was
16 only able to establish it was installed in 1992.
17 Q. You don't know if it was installed in
18 1992, you just know it existed in '92? You don't
19 know when it was installed, do you?
20 A. Well, I tried to establish that before
21 but I was met with resistance.
22 Q. Once?
23 A. Once.
24 Q. Back in 1987?
L.A. REPORTING (312) 419-9292
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1 A. No, I think that was later.
2 Q. Where did you get the sampling that
3 you took in March of 1995?
4 A. Are we talking about the Avon drainage
5 ditch?
6 Q. From the farm tile.
7 A. In earlier testimony, I explained I
8 took a cooler and I went to the tile and grabbed a
9 sample.
10 Q. Okay. And you were actually on the
11 farm property, weren't you, when you were taking
12 that?
13 A. Yes, I was.
14 Q. Did you ever notify Skokie Valley
15 Asphalt that they had failed to file a DMR?
16 A. Did I personally?
17 Q. Yes.
18 A. No.
19 Q. Was that part of your responsibility
20 as someone in the field for this particular
21 department to look for a compliance of filing DMRs?
22 A. The only administrative responsibility
23 I have in the field is to verify whether the DMRs
24 are correct.
L.A. REPORTING (312) 419-9292
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1 Q. So whether or not one is filed or not
2 is not your responsibility; is that correct?
3 A. It's my responsibility if we have
4 violations to at least alert the compliance
5 assurance section if we have violations. There is
6 an auditing system as I understand it.
7 But I do acknowledge if there are
8 or not submittals of DMRs. But whether it's my
9 personal responsibility to initiate a compliance
10 inquiry letter, it can be.
11 Q. Okay. Did you ever initiate a
12 compliance letter regarding missing DMRs for Skokie
13 Valley?
14 A. I might have mentioned it on a report
15 or memo, but I don't remember.
16 Q. You might have mentioned it? Do you
17 have that report or memo with you?
18 A. I don't remember.
19 Q. So you're speculating?
20 A. I'm speculating, right.
21 Q. Okay. It's been your experience that
22 the Illinois EPA looses DMRs on occasions; isn't
23 that correct?
24 A. The Illinois EPA looses DMRs?
L.A. REPORTING (312) 419-9292
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1 Q. (Indicating.)
2 A. I personally haven't heard of it, but
3 I imagine anything is possible.
4 Q. In your 22 years of experience with
5 the Illinois EPA, are you aware of the EPA ever
6 mishandling documents that were submitted by a
7 facility, misfiling them, sending them to the wrong
8 person, sending you documentation that wasn't within
9 your region or anything along those lines?
10 A. Yes, I have.
11 MR. MURPHY: Madam Hearing Officer,
12 that was a compound question.
13 HEARING OFFICER SUDMAN: That was a
14 pretty compound question but the gist of it
15 was --
16 MR. JAWGIEL: Mishandling of
17 documents.
18 HEARING OFFICER SUDMAN: --
19 mishandling of documents, so --
20 THE WITNESS: Yes, I have.
21 BY MR. JAWGIEL:
22 Q. Were Mr. Larry Frederick and
23 Mr. Richard Frederick involved personally in the
24 renewal of the NPDES permit as far as you're aware?
L.A. REPORTING (312) 419-9292
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1 MR. MURPHY: Objection, calls for
2 speculation.
3 MR. JAWGIEL: I said as far as he's
4 aware.
5 HEARING OFFICER SUDMAN: As far as
6 you're aware, you can go ahead and answer it.
7 THE WITNESS: I believe they had some
8 signatory requirement.
9 BY MR. JAWGIEL:
10 Q. Beyond that, anything else that you're
11 aware of that they did?
12 A. I wasn't privy to the actual
13 application process on their behalf.
14 Q. Was it your understanding that the
15 NPDES permit that was issued to Skokie Valley named
16 Skokie Valley as the permittee only?
17 A. Yes.
18 Q. And is it your understanding that
19 Skokie Valley as permittee was the entity required
20 to submit the DMRs?
21 A. Yeah, I looked at that as the entity,
22 that's correct, Skokie Valley Asphalt. That's who
23 was issued the NPDES permit.
24 Q. So would it be fair to say that
L.A. REPORTING (312) 419-9292
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1 Larry Frederick and Richard Frederick were not the
2 permittees under the NPDES permit as you're aware of
3 it to Skokie Valley; is that correct?
4 A. Well, the permit goes to Skokie Valley
5 Asphalt. The responsible official is whoever signed
6 off on the permit application.
7 Q. When you say responsible individual,
8 are you talking about the person that certifies the
9 NPDES at the bottom of the -- I'm sorry, certifies
10 the DMR, at the bottom of the DMR?
11 A. Well, that's who they say. It's not
12 always that way. I mean, there's -- whoever is the
13 responsible official on the permit application and
14 whoever is the responsible official on the DMR is
15 who they say it is.
16 Q. Well, when you say responsible person
17 on the DMR, are you talking about the person who
18 signs the DMR certifying the DMR?
19 A. Well, that's who they say is the
20 responsible official certifying that DMR.
21 Q. Okay. Well, who was the responsible
22 party with respect to the NPDES permit that was
23 issued to Skokie Valley?
24 A. You're talking about the original
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1 NPDES permit? I don't have the permit application
2 in front of me.
3 Q. So as you sit here today, you don't
4 know who that person was?
5 A. That's correct.
6 Q. Has it been your experience in dealing
7 with I would assume many different types of
8 businesses that smaller businesses have difficulty
9 understanding the requirements of the NPDES permit?
10 MR. MURPHY: Objection, calls for
11 speculation.
12 MR. JAWGIEL: I'm asking in his
13 experience.
14 HEARING OFFICER SUDMAN: Well, in your
15 experience, if you have any idea, you can
16 answer.
17 THE WITNESS: All right. In my
18 experience, smaller -- when you say smaller,
19 you mean -- smaller operations do have a
20 tendency not to understand the permit
21 conditions as a whole.
22 I mean, not all of them. The
23 majority of them perfectly do, but I do see a
24 pattern there sometimes with smaller
L.A. REPORTING (312) 419-9292
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1 permittees.
2 BY MR. JAWGIEL:
3 Q. Okay. And what are you aware of the
4 Illinois EPA doing in order to educate or edify the
5 smaller permittees into what they need to do?
6 MR. MURPHY: Madam Hearing Officer,
7 objection, relevance. This has no bearing on
8 the case.
9 HEARING OFFICER SUDMAN: This is
10 really getting a little off. I don't know
11 where this is going. I mean, I agree with
12 him.
13 MR. JAWGIEL: Well, I think it goes to
14 the fact that if he's out there complaining
15 that they don't have certain things, what
16 does he do in order to educate the person so
17 they can comply.
18 HEARING OFFICER SUDMAN: But I don't
19 think the People have alleged he's in a
20 capacity to do that, and I don't think he's
21 testified to anything to that effect.
22 BY MR. JAWGIEL:
23 Q. Okay. As you sit here today, do you
24 have any recollection of any conversations you've
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1 had with Larry Frederick and I mean, verbatim
2 recollection?
3 A. Maybe some verbatim, yes, I guess.
4 Q. Okay. What conversation do you
5 remember having with Larry Frederick verbatim?
6 MR. COHEN: Objection. There's no
7 relevancy to this question to anything. If
8 he wants to say a conversation related to
9 DMRs or the NPDES permit, then maybe we can
10 talk about it at this hearing.
11 HEARING OFFICER SUDMAN: I agree.
12 Could you be a little bit more specific?
13 MR. JAWGIEL: Sure.
14 BY MR. JAWGIEL:
15 Q. Do you remember having any
16 conversations with Larry specifically regarding the
17 requirements of the NPDES permit?
18 A. With Larry regarding the NPDES permit,
19 no.
20 Q. Did you ever check to see how the
21 samples were being analyzed for Skokie Valley during
22 the period of time where they held the NPDES permit?
23 A. I believe that during inspections I
24 did look at some of their lab sheets which they got
L.A. REPORTING (312) 419-9292
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1 back from Northshore Sanitary District who I believe
2 was their contract lab.
3 Q. Okay. And when you reviewed those
4 documents, you found them to be in order?
5 A. Generally, yes.
6 Q. Did you find anything to be out of
7 order?
8 A. I don't remember anything being out of
9 order specifically.
10 MR. MURPHY: I'm sorry. I've got to
11 object on vagueness because I don't know what
12 out of order or in order means.
13 MR. JAWGIEL: Those are the words he
14 used. That's the testimony of the witness.
15 MR. MURPHY: That was in the question.
16 You can't fault him for using those words in
17 the answer when it was in the question.
18 MR. JAWGIEL: Your Honor, he used that
19 in his prior answer.
20 HEARING OFFICER SUDMAN: Well, would
21 you like to phrase it as anything unusual, is
22 that what you mean?
23 MR. JAWGIEL: I think I asked him when
24 you reviewed those documents, did you find
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1 them to be -- well, let me ask this question.
2 BY MR. JAWGIEL:
3 Q. When you reviewed those particular
4 documents, those reports, did you find that they
5 were in compliance or what your expectations were
6 for analyzing those samples?
7 A. I could verify that Northshore
8 Sanitary District received and did an analysis.
9 Q. You're aware that Skokie Valley
10 Asphalt Company no longer has an NPDES permit; is
11 that correct?
12 A. Yes.
13 Q. Are you also aware that the entity
14 Skokie Valley no longer exists?
15 A. No.
16 Q. If, for example, Skokie Valley -- for
17 the sake of this question -- no longer exists as a
18 legal entity in the State of Illinois, is it your
19 understanding they would no longer have a
20 requirement to file a DMR in the current status of
21 the NPDES?
22 A. Whoever is the owner of the facility
23 under the NPDES permit is the one who's required to
24 submit a DMR.
L.A. REPORTING (312) 419-9292
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1 Q. Is the NPDES permit transferable?
2 A. Yes.
3 MR. JAWGIEL: That's all I have.
4 HEARING OFFICER SUDMAN: Thank you.
5 Redirect?
6 MR. MURPHY: I have a few.
7 R E D I R E C T E X A M I N A T I O N
8 BY MR. MURPHY:
9 Q. Mr. Jawgiel asked you a question about
10 the car dealership?
11 A. Yes.
12 Q. You testified that it was located
13 north of Skokie Valley Asphalt?
14 A. Yes.
15 Q. It's also located north of the farm
16 tile where you collected the samples?
17 A. Yes.
18 Q. How far north is it from there?
19 A. I don't know, maybe about a quarter of
20 a mile.
21 Q. It's actually downstream from where
22 you collected the samples?
23 A. Yes.
24 Q. It's downstream from where the farm
L.A. REPORTING (312) 419-9292
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1 tile was?
2 A. Yes.
3 Q. Has it ever been your experience in
4 your work with Illinois EPA and the work you did to
5 ensure compliance with water pollution laws and
6 regulations that contaminants travel against current
7 upstream?
8 MR. JAWGIEL: Your Honor, I'm going to
9 object. He's talking about upstream on the
10 actual ditch itself, but we don't know the
11 direction of the drain tiles or where the
12 drain tiles patch in or discharge, so it's a
13 foundational objection.
14 HEARING OFFICER SUDMAN: Well, that is
15 true. I don't know the direction of the
16 water, so I don't know --
17 MR. JAWGIEL: Regardless of the water
18 direction, we don't know where the drain
19 tiles are from the car dealership to this
20 area, so that's really the issue because
21 that's where the samples are coming out of is
22 the farm tile. So regardless of how the
23 water is moving on the drainage ditch, it has
24 no relevance whatsoever.
L.A. REPORTING (312) 419-9292
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1 It has to do with the
2 configuration of these tiles underneath the
3 ground. And it was clear from his testimony
4 there was no investigation regarding other
5 contributory sources into this tile,
6 although, they thought there were some.
7 MR. MURPHY: I'll withdraw the
8 question.
9 HEARING OFFICER SUDMAN: Okay.
10 BY MR. MURPHY:
11 Q. Wasn't it your testimony that you did
12 try to investigate other tie-ins to the farm tile
13 but you were unsuccessful in finding any?
14 A. That's true.
15 Q. And it's difficult to do so?
16 A. That's true. Usually farm tiles are
17 not connected to storm sewers.
18 Q. Mr. Kallis, do you need a warrant to
19 inspect properties to ensure compliance with the
20 Illinois Environmental Protection Act and
21 Regulations?
22 A. No.
23 Q. Do you need a warrant to take samples?
24 A. No.
L.A. REPORTING (312) 419-9292
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1 Q. There's a little bit of confusion back
2 and forth during your cross-examination about these
3 subject matters but I just wanted to be clear about
4 this now.
5 Was Skokie Valley Asphalt ever
6 permitted to discharge to Avon drainage ditch?
7 A. No.
8 Q. Was Skokie Valley allowed to discharge
9 to Grayslake without an NPDES permit?
10 A. No.
11 Q. Was Skokie Valley Asphalt allowed to
12 discharge into Grayslake or a tributary to Grayslake
13 after the NPDES expired?
14 MR. JAWGIEL: Your Honor, I'm going to
15 object. This has been asked and answered.
16 We've been through this ad nauseam.
17 HEARING OFFICER SUDMAN: Well, he's
18 clarifying it for the record. I don't have a
19 problem with that.
20 THE WITNESS: No.
21 BY MR. MURPHY:
22 Q. When did you first see the accessible
23 representative sampling point?
24 A. In '92, early '92.
L.A. REPORTING (312) 419-9292
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1 Q. And the NPDES was issued in 1986?
2 A. (Indicating.)
3 Q. In fact you tried to see the
4 accessible sampling point in 1991, correct?
5 MR. JAWGIEL: I'm going to object to
6 the leading nature. He's leading on the
7 dates. He can simply ask him when he went
8 out there, when he tried to do it.
9 MR. MURPHY: He's right. I can do
10 that.
11 HEARING OFFICER SUDMAN: Okay.
12 BY MR. MURPHY:
13 Q. Did you try to see the representative
14 sampling point in May of 1991?
15 A. Yes.
16 Q. Were you allowed to see it?
17 A. No.
18 Q. In fact, the Frederick brothers
19 stopped you from seeing it?
20 A. Not directly, but essentially, yes.
21 MR. MURPHY: Nothing more at this
22 time.
23 MR. JAWGIEL: Literally just a couple
24 more questions.
L.A. REPORTING (312) 419-9292
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1 HEARING OFFICER SUDMAN: Okay.
2 R E C R O S S - E X A M I N A T I O N
3 BY MR. JAWGIEL:
4 Q. When you say not directly, did anybody
5 from Skokie Valley tell you you couldn't go see it?
6 A. Well, I was more or less told to leave
7 the premises in a rather volatile way and I thought
8 it would be better if I left.
9 Q. Well, isn't that a direct -- directly
10 telling you you can't go into it as opposed to not
11 directly? I mean, it's either one or the other,
12 sir.
13 It's either they told you to leave
14 the premises and you were directly told you couldn't
15 see it or they said they didn't do that?
16 A. I would find it very hard to testify
17 in this room if I was told to get out of this
18 building.
19 Q. Well, you have authority, don't you,
20 sir, that if someone tells you to get off the
21 property that you could maybe file a report and that
22 they prevented me from doing my job and that I
23 should maybe take it to the next level so I can get
24 on the property and do my job?
L.A. REPORTING (312) 419-9292
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1 A. I did write it in a report.
2 Q. Do you have that report?
3 A. Somewhere here, yeah.
4 Q. Okay. Is that the 1991 report that we
5 were talking about here?
6 A. Yeah, I think so.
7 Q. Okay. And did you go back out there
8 with any sort of special authority afterwards to do
9 your job?
10 A. I didn't need the authority later on.
11 I just went there and --
12 Q. And they let you on to do your job?
13 A. Yes, they did.
14 MR. JAWGIEL: That's all I have.
15 MR. MURPHY: No more.
16 HEARING OFFICER SUDMAN: Okay.
17 All right, Mr. Kallis, we are
18 finished with you for now, although, I
19 understand that --
20 MR. JAWGIEL: We may call him in our
21 case in chief tomorrow.
22 HEARING OFFICER SUDMAN: Okay.
23 (Witness excused.)
24 MR. MURPHY: Could we have a moment
L.A. REPORTING (312) 419-9292
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1 off the record to discuss timing for
2 Mr. Kallis?
3 HEARING OFFICER SUDMAN: Yes.
4 Let's go off the record.
5 THE REPORTER: Okay.
6 (Whereupon, a discussion
7 was had off the record.)
8 (Whereupon, after a short
9 break was had, the
10 following proceedings
11 were held accordingly.)
12 HEARING OFFICER SUDMAN: We are back
13 on the record and we are ready for the People
14 to call their next witness.
15 MR. MURPHY: Madam Hearing Officer,
16 the State calls Donald Klopke.
17 HEARING OFFICER SUDMAN: Mr. Klopke,
18 would you please have a seat over there and
19 the court reporter will swear you in.
20 (Witness sworn.)
21
22
23
24
L.A. REPORTING (312) 419-9292
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1 WHEREUPON:
2 DONALD KLOPKE
3 called as a witness herein, having been first duly
4 sworn, deposeth and saith as follows:
5 D I R E C T E X A M I N A T I O N
6 BY MR. MURPHY:
7 Q. Would you please state your name for
8 the record?
9 A. Yes. My name is Don Klopke. I'm
10 with --
11 Q. How do you spell your last name?
12 A. K-L-O-P-K-E.
13 Q. Who is your employer?
14 A. The Illinois Environmental Protection
15 Agency.
16 Q. How long have you been employed with
17 Illinois EPA?
18 A. March of 1980.
19 Q. So approximately 23 years?
20 A. Correct.
21 Q. Which bureau do you work for at
22 Illinois EPA?
23 A. I work currently with the office of
24 emergency response in the emergency operations unit.
L.A. REPORTING (312) 419-9292
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1 Q. Did that office of emergency response
2 go by a different name prior?
3 A. I believe back at the time of this
4 case it was the office of chemical safety, and I was
5 in the response unit similar -- basically the same
6 group.
7 Q. Same function?
8 A. Same function.
9 Q. What does the office of emergency
10 response or the emergency response unit do?
11 A. Well, our task -- our mission is to
12 protect the public health and safety in the
13 environment and with that we respond to emergencies
14 dealing with chemicals, petroleum. We deal with
15 complaints of oil or something on a body of water.
16 We, you know, do odor complaints, things like that.
17 Q. Have you worked for the ERU or
18 emergency response unit the entire time you worked
19 at Illinois EPA?
20 A. No. I worked with the bureau of water
21 roughly from about -- full-time from about 1980 to
22 1984. In '84, I started to work with the emergency
23 response unit on a semi full-time basis, and then in
24 '86, I believe I became a full-time member of the
L.A. REPORTING (312) 419-9292
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1 emergency response unit.
2 Q. Okay. How many of the situations you
3 just described have you responded to on behalf of
4 Illinois EPA?
5 A. Hundreds. I would say hundreds of
6 emergencies over the course of that time.
7 Q. Okay. And how many of these hundreds
8 of emergencies dealt with spills of oil or releases
9 of oil?
10 A. I would say about 50 percent or more.
11 Q. What was your job title at Illinois
12 EPA at the time -- well, let we withdraw that. I'll
13 come back to that in a moment.
14 Can you briefly describe for the
15 board your duties while working in the emergency
16 response unit?
17 A. As I mentioned a little bit earlier,
18 we respond to a lot of different types of
19 emergencies, citizens' complaints, requests, you
20 know, from fire departments. Our goal is to, you
21 know, protect public health and safety. When
22 incidents come in, complaints come in, we go out and
23 try to do the front end of an investigation to
24 confirm that there's something out there on certain
L.A. REPORTING (312) 419-9292
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1 situations.
2 Other situations, leaking
3 underground storage tanks, we'll get a call on the
4 emergency end to go out -- if the material is moving
5 off the property, we go out to assist the local fire
6 department to try and find out who the responsible
7 party is and then work with that responsible party
8 to try and come up with a solution to mitigate any
9 type of a release.
10 We deal with the pipeline breaks,
11 petroleum and chemicals, again, working --
12 responding to it, verifying that there's something
13 there and then working with the responsible party.
14 Once we find that person, we have to come up with a
15 solution.
16 Other things that we deal with
17 are, as I mentioned, odor complaints coming out of
18 fixed facilities or, you know, other types of
19 facilities. Another thing that we deal with is
20 abandonments, things that are left on the side of
21 the road that might be hazardous to the public.
22 We'll get a call from the local
23 authority to try and identify it and then hopefully
24 assist in getting those things removed. Most
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1 recently in the last couple of years we've also
2 become part of a weapons of mass destruction team
3 being the science component along with the state
4 police tactical response for counter-terrorism.
5 Q. Thank you.
6 Can you briefly describe your
7 education?
8 A. Bachelor's degree in biology from the
9 University of Illinois, Champaign and a master's in
10 environmental science in civil engineering also from
11 the University the Illinois in Champaign.
12 Q. Was the degree a bachelor's of
13 science?
14 A. Yes.
15 Q. And the master's was a master's of
16 science?
17 A. Correct.
18 Q. What about training provided by
19 Illinois EPA and/or any other agency?
20 A. Every year we're required through OSHA
21 to have an eight-hour refresher training and that's
22 provided by the state. We also have the opportunity
23 probably on the average of a week of additional
24 training that might be provided by the USEPA who's a
L.A. REPORTING (312) 419-9292
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1 big source in training due to the lack of cost to
2 attend also, you know, attend training through the
3 Illinois Fire Service Institute.
4 I attended a national spill
5 response school provided from the Corpus Christi
6 University in Texas, the U.S. Coast Guard response
7 school in Chicago, air monitoring, sampling of
8 hazardous materials, emergency response to hazardous
9 materials, things like that.
10 Q. The spill classes that you mentioned,
11 did they relate to oil spills?
12 A. That's correct.
13 Q. So both the one in Corpus Christi and
14 the one by the Coast Guard?
15 A. Yes.
16 Q. Are you familiar with the site
17 formally known as Skokie Valley Asphalt in
18 Grayslake that is the subject of these proceedings?
19 A. Yes, I am.
20 Q. And are you familiar with the area
21 surrounding Skokie Valley Asphalt?
22 A. Yes, I am.
23 Q. How are you familiar with either that
24 site -- or both the site and surrounding area?
L.A. REPORTING (312) 419-9292
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1 A. I visited those sites back --
2 Q. Do you remember when?
3 A. I know I was out there on the 19th of
4 April 1995 and possibly I may have been in the area
5 previous to that.
6 Q. Mr. Klopke, have you inspected sites
7 where there's been possible oil contamination?
8 A. Yes.
9 Q. How did ERU or OER as it's currently
10 known handle such complaints?
11 A. Well, we respond to the complaint to
12 first verify whether there is or isn't a problem in
13 the impacted area and then we will, you know, make a
14 search of the area, the likely potentially
15 responsible parties, and do as much legwork as we
16 can to both look visually at the site's and then
17 also talk to the owners of the property to see if
18 there's been any type of accidents on the site that
19 might, you know, may not have been reported but now
20 is showing up off-site.
21 Q. Okay. Does any of your efforts
22 include working with USEPA on these oil spill cases?
23 A. Yes, it does.
24 Q. Okay. Why do you call or coordinate
L.A. REPORTING (312) 419-9292
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1 with USEPA in those instances where you do?
2 A. In certain situations where we're not
3 able to find a responsible party to pay for the
4 cleanup, we as a state agency do not have funding to
5 hire a contractor to go out there and do the
6 cleanup.
7 We then call the USEPA who has
8 that capability, that resource, to be able to hire
9 somebody in the event that we can't find a person to
10 take responsibility and we also get them out there
11 for their expertise.
12 Q. And what type of business was Skokie
13 Valley Asphalt?
14 A. I believe it was an asphalt type -- an
15 asphalt business or something similar. As the
16 company name implies, I would think that they were
17 in the business of --
18 MR. JAWGIEL: Your Honor, I'm going
19 to object. He's speculating at this point
20 and I ask that it be struck.
21 HEARING OFFICER SUDMAN: Well, I think
22 he's answered it.
23 An asphalt company?
24 THE WITNESS: Right.
L.A. REPORTING (312) 419-9292
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1 MR. MURPHY: Thank you.
2 BY MR. MURPHY:
3 Q. Could you describe the area around
4 Skokie Valley Asphalt, the former Skokie Valley
5 Asphalt site?
6 A. Well, the Avon Fremont ditch lies to
7 the east. There's railroad tracks that lye to the
8 north. A farm field, I believe, surrounded the
9 facility and -- yeah. I recall a farm field
10 surrounding it at least on the north -- or I mean,
11 on the east, south, and west sides of the property.
12 Q. Were there any other industries,
13 factories or gas stations in the area?
14 A. Not that I know of other than Mitch's
15 Landscaping was to the west.
16 Q. What kind of company was Mitch's
17 Landscaping?
18 A. Again, from recollection was a
19 landscaping company that would provide landscaping
20 services to either subdivisions and personal
21 landscaping or possibly, you know, larger companies.
22 Q. Now, you mentioned you went to the
23 site in early 1995?
24 A. Correct.
L.A. REPORTING (312) 419-9292
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1 Q. How soon after arriving at the Avon
2 drainage ditch in the former Skokie Valley Asphalt
3 site did you determine what kind of release was
4 involved?
5 A. Well, I immediately saw the sheen, the
6 oil sheen on the surface -- the petroleum sheen on
7 the surface of the Avon Fremont ditch and there was
8 a strong odor of petroleum.
9 Q. Okay. So those two things indicated
10 to you that it was an oil spill or oil release?
11 A. Correct.
12 Q. And that was based upon your training
13 and experience?
14 A. Correct.
15 Q. In which direction does the Avon
16 drainage ditch flow?
17 A. It flows to the north.
18 Q. Okay. Is there a farm field tile
19 outfall that connects to Avon drainage ditch?
20 A. Yes.
21 Q. And where is that located?
22 A. That is located on the west bank of
23 the Avon Fremont ditch south of the railroad tracks.
24 Q. Where is that field tile in relation
L.A. REPORTING (312) 419-9292
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1 to the Skokie Valley Asphalt site?
2 A. Due east.
3 Q. Okay. When you inspected the Skokie
4 Valley Asphalt site in April of '95, who else was
5 with you that day?
6 A. Ken Savage from our agency and also
7 Betty Lavis from the USEPA.
8 Q. Why were USEPA personnel with you that
9 day?
10 A. They were contacted by our agency to
11 assist in dealing with the problem in the Avon
12 Fremont ditch.
13 Q. You mentioned that the Avon drainage
14 ditch flows north. Does it flow into Grayslake, the
15 town?
16 A. It flows -- I believe, it flows
17 through Grayslake, the town.
18 Q. As opposed to Grayslake, the body of
19 water?
20 A. Correct.
21 Q. Did you notice anything in the Avon
22 drainage ditch in that direction downstream from the
23 field tile?
24 A. I recollect going across a subdivision
L.A. REPORTING (312) 419-9292
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1 street that goes over the Avon Fremont drainage and
2 I believe -- I recollect seeing and smelling the
3 diesel fuel at that point.
4 Q. And that was downstream from the field
5 tile?
6 A. Yes.
7 Q. Did you inspect the area around
8 Mitch's Green Thumb Nursery?
9 A. I recall visiting Mitch's Green Thumb,
10 yes.
11 Q. Did you see any oil there?
12 A. No.
13 Q. And could the oil have been coming
14 from any other areas during your inspection of April
15 of '95 --
16 MR. JAWGIEL: I'm going to object.
17 MR. MURPHY: Well, can I finish the
18 question?
19 MR. JAWGIEL: Sure. I'm sorry.
20 Q. -- other than the Skokie Valley
21 Asphalt site?
22 MR. JAWGIEL: Objection to the
23 foundation, your Honor.
24 HEARING OFFICER SUDMAN: Well, he did
L.A. REPORTING (312) 419-9292
225
1 just testify that he had been to several
2 other places, correct?
3 MR. JAWGIEL: Several other places
4 that we have not talked about. He asked him
5 did you see oil at Mitch's Green Thumb
6 Nursery and he said no, but he also said that
7 he smelled diesel fuel, so we don't even know
8 what the substance is in the water.
9 We have multiple substances that
10 it possibly could be. It hasn't been
11 established what the substance actually is.
12 HEARING OFFICER SUDMAN: And what was
13 your question again?
14 MR. MURPHY: My question was could the
15 oil that he observed in the Avon drainage
16 ditch have been coming from other areas
17 during his inspection of April of '95 other
18 than the Skokie Valley Asphalt site?
19 HEARING OFFICER SUDMAN: I'm going to
20 allow it.
21 You may answer.
22 THE WITNESS: I did not see any other
23 responsible parties or could not confirm that
24 anything else was coming off of other
L.A. REPORTING (312) 419-9292
226
1 properties.
2 BY MR. MURPHY:
3 Q. Did you observe anything at the Skokie
4 Valley Asphalt site that suggested to you it was
5 coming from that site?
6 A. Well, I recall seeing above ground
7 storage tanks on the property which, you know, not
8 having -- from afar seeing above ground storage
9 tanks, and then there's always the possibility as a
10 responder that a large facility might have
11 underground storage tanks there that might be a
12 contributing factor.
13 MR. JAWGIEL: Your Honor, I'm going to
14 object and ask that that be struck as being
15 speculative. If a large facility may have it
16 or not is speculation.
17 MR. MURPHY: He's just giving his
18 opinion based on his experience.
19 HEARING OFFICER SUDMAN: I agree.
20 You can give your opinion.
21 BY MR. MURPHY:
22 Q. Mr. Klopke, I'd like to direct your
23 attention to tab 25 in the binder that you have in
24 front of you.
L.A. REPORTING (312) 419-9292
227
1 A. Yes.
2 Q. Take a moment to look through that.
3 (Witness perusing
4 the document.)
5 A. Okay.
6 Q. Do you recognize it?
7 A. Yes.
8 Q. What is it?
9 A. It's a pol representative sent by the
10 United States Environmental Protection Agency.
11 Q. What is a pol representative?
12 A. It's a pollution report.
13 Q. That's an acronym?
14 A. Short for pollution report.
15 Q. It was prepared by the USEPA?
16 A. Correct.
17 Q. What date does it give?
18 A. May 3, 1995.
19 Q. And who is this memo from?
20 A. I believe it's from -- it reads
21 Betty Lavis, USEPA.
22 Q. And she was the individual that was
23 present with you in April of '95 at or near the
24 site?
L.A. REPORTING (312) 419-9292
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1 A. Correct.
2 Q. And does it indicate who Betty Lavis
3 sent this memo to?
4 A. A long list of people, including
5 Ken Savage and myself, Don Klopke, from the IEPA
6 ERU, monitoring response unit.
7 Q. Is this a document used in the
8 ordinary course of business between Illinois EPA and
9 USEPA when there's an oil spill in a body of water?
10 A. Yes.
11 Q. Is it kept in the ordinary course of
12 business by Illinois EPA?
13 A. Yes.
14 Q. Is this a true and accurate copy of
15 that report?
16 A. Yes.
17 Q. Does the report indicate whether USEPA
18 was successful in determining the source of the
19 petroleum release into the Avon drainage ditch?
20 A. Yes.
21 Q. Where does it do that?
22 A. Well, under actions taken on page 2,
23 on April 25, it states that the OSC had planned to
24 do additional sampling but was met at the site by
L.A. REPORTING (312) 419-9292
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1 the owners of SVAC who said they had found a leak
2 and would address the problem.
3 Q. What does an OSC stand for?
4 A. On-scene coordinator.
5 Q. And what does SVAC stand for?
6 A. Skokie Valley Asphalt Company.
7 Q. Does the report at tab 25 indicate who
8 the owners and operators of Skokie Valley Asphalt
9 Company were?
10 A. I believe on the first page on site
11 background, it indicates Richard and Larry
12 Frederick, owner/operator.
13 Q. So this report indicates that it was
14 Larry and Richard Frederick on behalf of Skokie
15 Valley Asphalt Company who were the individuals --
16 strike that.
17 So this report indicates that
18 Larry and Richard Frederick were the individuals on
19 behalf of Skokie Valley Asphalt Company that dealt
20 with the regulatory agencies with respect to this
21 environmental issue?
22 MR. JAWGIEL: Your Honor, I'm going to
23 object. This person is not the person who
24 drafted this document. He would have no
L.A. REPORTING (312) 419-9292
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1 knowledge of that and, therefore, it is pure
2 speculation.
3 MR. MURPHY: Absolutely not. It's
4 a business record. I've laid the foundation
5 for that and anything --
6 HEARING OFFICER SUDMAN: I agree.
7 You may answer, if you know.
8 MR. JAWGIEL: Your Honor, he can lay
9 the foundation for a business record, but if
10 the person who is testifying didn't draft the
11 document, they can't interpret the document.
12 The documents then speak for themselves and
13 can be admitted into evidence.
14 If there's questionable
15 interpretation of the document, it's up to
16 the drafter to clarify it, not speculation on
17 the part of a witness who did not draft this
18 particular document.
19 HEARING OFFICER SUDMAN: He can give
20 his opinion.
21 MR. JAWGIEL: We'll object as not
22 disclosed pursuant to Supreme Court Rule 213.
23 HEARING OFFICER SUDMAN: Okay.
24 THE WITNESS: Could you repeat the
L.A. REPORTING (312) 419-9292
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1 question, please?
2 MR. MURPHY: Sure.
3 BY MR. MURPHY:
4 Q. So Larry Frederick and Richard
5 Frederick were the individuals on behalf of Skokie
6 Valley Asphalt Company that dealt with the
7 regulatory agencies, USEPA, and Illinois EPA with
8 respect to this environmental issue?
9 MR. JAWGIEL: Same objection, your
10 Honor, to the same question he asked.
11 HEARING OFFICER SUDMAN: Same ruling.
12 Overruled.
13 THE WITNESS: Yes.
14 BY MR. MURPHY:
15 Q. Does the report explain the sources of
16 contamination at the Skokie Valley Asphalt site?
17 A. Well, it notes a leaking underground
18 storage tank and also the possibility that -- under
19 actions taken also under May 1, 1995, it notes that
20 an unregistered leaking underground storage tank as
21 a possibility of the alleged release -- or the
22 release.
23 Q. Okay. Directing your attention to
24 page 3 under key issues, D, what does the report
L.A. REPORTING (312) 419-9292
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1 indicate there?
2 MR. JAWGIEL: I'm sorry. Which
3 section?
4 MR. MURPHY: Section D, page 3.
5 MR. JAWGIEL: Thank you.
6 THE WITNESS: It also not only
7 mentions the 2000-gallon storage tank but it
8 also mentions the possibility that there may
9 be additional product under the property that
10 might be contributing to the release.
11 BY MR. MURPHY:
12 Q. Product being what?
13 A. Petroleum.
14 Q. From the operations at the site?
15 A. Correct.
16 MR. MURPHY: May I have one moment?
17 HEARING OFFICER SUDMAN: Yes.
18 (Brief pause.)
19 MR. MURPHY: Just a couple more
20 questions.
21 HEARING OFFICER SUDMAN: Sure.
22 BY MR. MURPHY:
23 Q. Who is Ken Savage?
24 A. He was a partner in the emergency
L.A. REPORTING (312) 419-9292
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1 response unit at that time, an employee in the
2 emergency response unit.
3 Q. And you worked with him?
4 A. Yes.
5 Q. You worked with him on this case?
6 A. Yes.
7 Q. Was he involved in any investigations
8 of the site apart from you?
9 A. Yes.
10 Q. And when did they occur?
11 A. I believe the file shows some work
12 done in December and also in February, December of
13 '94 and February of '95.
14 MR. MURPHY: Nothing further, Madam
15 Hearing Officer.
16 HEARING OFFICER SUDMAN: Thank you.
17 Mr. Jawgiel?
18 MR. JAWGIEL: Yes. Thank you.
19 C R O S S - E X A M I N A T I O N
20 BY MR. JAWGIEL:
21 Q. Good afternoon, Mr. Klopke.
22 A. Hi.
23 Q. You personally did not conduct any
24 tests which would definitively locate the source of
L.A. REPORTING (312) 419-9292
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1 the substance that was coming out of the farm tile
2 back in 1995 in the SVA area; is that correct?
3 A. Not that I recall.
4 Q. You didn't personally inspect the
5 above ground storage tanks that were on the SVA
6 property when you were out there; is that correct?
7 A. My recollection is we did walk the
8 property on the 19th.
9 Q. Did you inspect the above ground tanks
10 that you talked about earlier?
11 A. Not physically.
12 Q. Okay. So you saw that they were there
13 and you believe they could have been a potential
14 source of this substance and you didn't go inspect
15 them; is that correct?
16 A. That's correct.
17 Q. Now, with respect to underground
18 storage tanks, you had indicated that a facility
19 like SVA possibly could have had underground storage
20 tanks; is that correct?
21 A. That's correct.
22 Q. And while you were out at the site,
23 did you ever go and look around the facility for
24 anything that would be indicative of an underground
L.A. REPORTING (312) 419-9292
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1 storage tank?
2 A. Yes.
3 Q. Did you find any?
4 A. Yes.
5 Q. Did you look inside to see if there
6 was any indication of a leak in those tanks, for
7 example, water leaking in or anything along those
8 lines?
9 A. I don't recall doing that.
10 Q. Did you take a sample of the contents
11 in the underground storage tank?
12 A. I do not recall doing that.
13 Q. Did you match up any sample whatsoever
14 of any material on the Skokie Valley site while you
15 were out there during your investigation and match
16 it to what was found in the drainage ditch?
17 A. Not that I recall.
18 Q. You had indicated that you -- well,
19 let me just ask you, you said that you saw this oily
20 substance on the drainage ditch, was it gasoline?
21 A. No.
22 Q. Was it diesel fuel?
23 A. Possibly.
24 Q. Okay. Was it heating oil?
L.A. REPORTING (312) 419-9292
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1 A. Possibly.
2 Q. Was it fertilizer based?
3 A. No, I can't say that.
4 Q. You don't know one way or the other?
5 A. No.
6 Q. So it could be or it couldn't be; is
7 that fair enough?
8 A. Heating oil?
9 Q. No, fertilizer based.
10 A. Fertilizer based as far as what?
11 Q. Well, was it a fertilizer?
12 A. I don't believe so.
13 Q. Did you test it for that sampling?
14 A. No. I just seen the sheen and smelled
15 the odor.
16 Q. Okay. So based on your smell it could
17 have been gasoline; it could have been diesel?
18 A. I did not say gasoline. I said it
19 could not be gasoline. It could be either diesel
20 or, number two, heating fuel which have very similar
21 characteristics both by odor and sight.
22 Q. Anything else that it could have been
23 in your experience?
24 A. No.
L.A. REPORTING (312) 419-9292
237
1 Q. Did you see any diesel fuel on the SVA
2 site when you inspected it?
3 A. I do not recall seeing anything on the
4 19th.
5 Q. Well, at any time that you inspected
6 the premises, did you see any diesel fuel?
7 A. I don't recall seeing any diesel fuel
8 to my knowledge on the site that I can recall.
9 Q. When you opened up -- when you saw
10 these underground storage tanks, did you smell any
11 diesel smell?
12 A. I did not open the tanks. Typically,
13 it's not our operating procedure to be opening up
14 underground storage tanks on a property.
15 Q. Well, I thought it was your
16 responsibility or at least one of your duties to
17 determine who the responsible party was?
18 A. Yes.
19 Q. Okay. And in doing so, don't you --
20 if you go to a place that you believe is the
21 responsible party, wouldn't it be part of your
22 responsibility to confirm that materials that may be
23 present on there would be the same materials that
24 you sampled out of the drainage ditch?
L.A. REPORTING (312) 419-9292
238
1 A. Usually our course of action is to
2 approach the property owner initially to see if
3 there's any type of obvious release that hadn't been
4 reported or may have been spilled or hadn't been
5 reported yet. We will try to walk the property to
6 see if there's any visual contamination.
7 If there are monitoring laws on
8 the property, we will try to open those up, but a
9 lot of our work is just trying to get a responsible
10 party or a potential responsible party to work with
11 us to try and resolve some off-site impact.
12 Q. Well, you like to use this phrase
13 responsible party, but really when you would go out
14 to a site when you did your investigation, based on
15 your investigation, you didn't know who the
16 responsible party was, you just thought SVA was a
17 potential responsible party; isn't that correct?
18 A. Yes.
19 Q. At no point in time did you actually
20 draw the conclusion that they were the responsible
21 party based on what you saw, tasted, felt, touched,
22 smelled out on the site; is that correct?
23 A. That's correct.
24 Q. You're relying solely on Ms. Lavis'
L.A. REPORTING (312) 419-9292
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1 statements in her report regarding whether or not
2 SVA was the responsible party?
3 MR. COHEN: Objection, no time frame
4 to that question.
5 MR. JAWGIEL: Time frame? He just
6 testified five minutes ago. What kind of
7 time frame do I need? He's relying solely on
8 Ms. Lavis' report, which we talked about two
9 minutes ago.
10 HEARING OFFICER SUDMAN: What kind of
11 time frame do you mean?
12 MR. COHEN: At what point in time is
13 he relying on that as the responsible party?
14 There's a lot that's happened since the Lavis
15 report has come out that this witness may
16 know of to be able to also know who the
17 responsible party is.
18 HEARING OFFICER SUDMAN: Could you
19 please break it down?
20 BY MR. JAWGIEL:
21 Q. In the testimony you gave here today,
22 do you believe SVA was the responsible party based
23 upon Ms. Lavis' report; isn't that correct?
24 A. No. I believe there was a report by
L.A. REPORTING (312) 419-9292
240
1 Huff and Huff that was sent May 1 to our office
2 which indicates -- Huff and Huff was their
3 contractor hired by SVAC and that report states that
4 a release -- or there was product found on the
5 property and that they were taking responsibility
6 for the cleanup in the -- the cleanup of the spill
7 and also responsible for the spill itself.
8 Q. Okay. Well, let me ask you -- that
9 report said that they were taking responsibility for
10 the spill itself?
11 A. I believe so.
12 Q. You believe so?
13 A. They were. They were taking
14 responsibility for the drainage ditch and, if I
15 recall, the spill itself.
16 Q. Okay. Well, let me ask you this
17 question: In that report that you saw from Huff and
18 Huff, did you see any sort of chemical analysis that
19 would match what was in the drainage ditch and what
20 was on the facility itself?
21 A. Not that I recall.
22 Q. Okay. Other than the report from Huff
23 and Huff and Ms. Lavis' report, is there any other
24 basis for your opinion here today that SVA was the
L.A. REPORTING (312) 419-9292
241
1 facility responsible for the discharge?
2 A. There was significant work done by the
3 consultant and the release stopped soon after that
4 work was performed on the property, the release to
5 the creek. There was no -- our file did not
6 indicate any further complaints of diesel fuel in
7 the creek after work was performed on the property
8 and off the property, I believe, by Huff and Huff,
9 and that report never indicated any type of -- any
10 type of upstream responsible party that was
11 indicated by their investigation.
12 Q. Well, did Huff and Huff actually do an
13 area investigation in that report?
14 A. Not that I recall.
15 Q. Okay. So you don't know whether or
16 not they looked for other alternative sites or not;
17 is that correct?
18 A. I believe they did some off-site
19 excavation and that off-site excavation indicated --
20 did not indicate anything upstream.
21 Q. Okay. Let me ask you this question:
22 How many drain tiles fed into this farm tile in that
23 area?
24 A. I don't recall.
L.A. REPORTING (312) 419-9292
242
1 Q. Did you do any research to find out?
2 A. Not that I recall.
3 Q. Now, are you familiar with pulling
4 permits given that you have a civil engineering
5 background, pulling permits in order to do
6 excavation and drain tile installation in a village?
7 A. Repeat the question, please.
8 Q. Sure.
9 Given that you have a background
10 in civil engineering, are you familiar with the
11 process of acquiring a permit to install drain tiles
12 in a particular city, town or village?
13 A. Not that I recall.
14 Q. Did you do any investigation by going
15 to the village hall to determine whether or not they
16 had a schematic or permits or anything that would
17 indicate to you that there were contributory drain
18 tiles into this farm tile that were not SVA?
19 A. Not that I recall.
20 Q. So based on your investigation,
21 setting aside the reports from Ms. Lavis and Huff
22 and Huff, it was inconclusive whether or not SVA was
23 a responsible party?
24 MR. COHEN: I object to the form of
L.A. REPORTING (312) 419-9292
243
1 that question.
2 THE WITNESS: I would say it was
3 conclusive --
4 HEARING OFFICER SUDMAN: Sir --
5 MR. COHEN: I object to the form of
6 that question.
7 THE WITNESS: Sorry.
8 HEARING OFFICER SUDMAN: Would you
9 rephrase the question, please?
10 MR. JAWGIEL: Sure.
11 BY MR. JAWGIEL:
12 Q. Without seeing the reports from Huff
13 and Huff that you had indicated and without seeing
14 the USEPA but based solely on your investigation of
15 this site, Skokie Valley was only a potential source
16 for the substance; isn't that correct?
17 A. Well --
18 MR. COHEN: Would you repeat the
19 question?
20 MR. JAWGIEL: Sure.
21 MR. COHEN: Excuse me, your Honor. If
22 I may, I think if he limits that question to
23 the date he was out there, I think it may be
24 more understandable; it's just a suggestion.
L.A. REPORTING (312) 419-9292
244
1 HEARING OFFICER SUDMAN: Well, I don't
2 know that it's necessarily a date-dependent
3 question.
4 Are you just asking him --
5 MR. JAWGIEL: I'm just asking if he
6 set aside this report --
7 HEARING OFFICER SUDMAN: On the basis
8 of his investigation.
9 BY MR. JAWGIEL:
10 Q. Based on your investigation alone,
11 Skokie Valley was only a potential source for this
12 contamination?
13 MR. COHEN: Then I have to object to
14 the form of the question because you're
15 asking this witness to set aside portions of
16 what is part of his investigation, that being
17 the USEPA report, that they did receive that
18 they participated in and the consultant's
19 report that they did receive and relied on.
20 So if you limit it to time before
21 they get there, then I think you can ask that
22 question. But I don think you can ask him to
23 erase from his mind --
24 HEARING OFFICER SUDMAN: Yeah, I think
L.A. REPORTING (312) 419-9292
245
1 you need to be more specific on what you mean
2 by his --
3 MR. JAWGIEL: I did. I indicated to
4 him setting aside the report from
5 Ms. Lavis --
6 HEARING OFFICER SUDMAN: But what does
7 that include?
8 MR. JAWGIEL: Well, he indicated there
9 was this report, which is now Exhibit 25.
10 HEARING OFFICER SUDMAN: Yes.
11 MR. JAWGIEL: I'm asking him to set
12 that aside. And he also identified a
13 document -- or report I should say from
14 Huff and Huff, which I'm asking him to set
15 aside as well, and I'm saying based on -- if
16 we set those two documents aside based on
17 your investigation, was Skokie Valley --
18 HEARING OFFICER SUDMAN: On the date
19 that he talked about?
20 MR. JAWGIEL: Well, yeah.
21 HEARING OFFICER SUDMAN: Okay.
22 BY MR. JAWGIEL:
23 Q. When you were out on the site, Skokie
24 Valley was only a potential source for the
L.A. REPORTING (312) 419-9292
246
1 contaminants on the date that you were out
2 investigating; is that correct?
3 A. I don't want to do this to you but
4 could you please just give me that question one more
5 time?
6 Q. Sure.
7 When you concluded your
8 investigation while you were still on the site that
9 day -- I think it was in April of 1995; is that
10 right?
11 A. Yes.
12 Q. You were out there in April of 1995.
13 And when you concluded your investigation of the
14 site, was Skokie Valley only a potential source for
15 this contamination?
16 A. Yes.
17 Q. What other potential sources did you
18 list in your report for this contamination?
19 A. I don't belief I generated a report.
20 Q. All right. What other sources of
21 contamination -- potential sources of this
22 contamination were there after you completed your
23 examination?
24 A. As I mentioned earlier, the only
L.A. REPORTING (312) 419-9292
247
1 property that was near the area was Mitch's
2 Landscape.
3 Q. Did you go to the farm to see if the
4 farmland or the farm in that area had any drain
5 tiles?
6 A. No -- well, I went to the property
7 but, as you know, drain tiles aren't really
8 apparent. I mean, they're very --
9 Q. My question was did you inspect any
10 drain tiles that may have been on the farm?
11 A. No, not that I recall.
12 Q. Are you familiar that diesel fuel may
13 be on a farm for equipment, has it been your
14 experience?
15 A. There's a possibility.
16 Q. So the farm area -- you walked on the
17 property, but you didn't really -- did you talk to
18 anybody?
19 A. Well, I believe -- I do not recall
20 when I drove the perimeter of the property seeing
21 anything that would lead me to believe that there
22 was storage or the use of diesel fuel in the area.
23 Many times there are above ground storage tanks, but
24 I do not recall seeing those.
L.A. REPORTING (312) 419-9292
248
1 Q. When you said you drove the permitter
2 of the property, you're talking about the SVA
3 property?
4 A. No. The area. I mean, as I
5 mentioned --
6 Q. Well, how far did you drive?
7 A. Probably up the next road down, up the
8 street.
9 Q. Which would be what?
10 A. South.
11 Q. Which road?
12 A. I don't recall.
13 Q. How far was that from where the Skokie
14 Valley site was located?
15 A. I don't recall.
16 Q. Are you aware of a car dealership
17 being in that area, the Skokie Valley area?
18 A. I do not recall that.
19 Q. Did you look to see if there were any
20 other potential sources of this oily substance other
21 than Mitch's Green Thumb Nursery and Skokie Valley?
22 A. At the time of that inspection, from
23 what I recall, those were the only two that stood
24 out in my -- from my recollection.
L.A. REPORTING (312) 419-9292
249
1 Q. Okay. Do you see on Exhibit 25,
2 page 3, under Section D -- I think you were referred
3 to that as well by Mr. Murphy. Do you see where it
4 says: EPA must continue the investigation of the
5 source of the release.
6 A 2000-gallon storage tank leak is
7 probably not a complete explanation for the
8 continued release. Do you see that there?
9 A. Yes, sir.
10 Q. Now, does that indicate to you, sir,
11 that there were more than one source of this
12 potential contaminant?
13 A. Could you repeat it, please?
14 Q. Sure.
15 Does that indicate to you in your
16 opinion that there would be more than one source of
17 this contamination?
18 A. They are saying that there may be more
19 than one source on the property.
20 Q. Okay. Did you or --
21 A. That there may be one more source on
22 the property.
23 Q. Did you or the Illinois EPA as far as
24 you're aware, based on the reports you have in your
L.A. REPORTING (312) 419-9292
250
1 file, ever go out to examine the 2000-gallon storage
2 tank?
3 A. I don't recall doing that, but I
4 believe the report stated that it was referred to
5 the leaking underground storage tank program who
6 typically will follow up on leaking underground
7 storage tanks.
8 Q. Just so I could understand your
9 testimony, is it your opinion that it was this
10 leaking underground storage tank that was the source
11 of the contamination in the Avon drainage ditch
12 based on your entire investigation?
13 A. I don't know if I can answer that
14 other than it seemed to stop once activity was
15 performed on the property by their consultants.
16 Q. Okay. So you don't know whether or
17 not what they did on the property at Skokie Valley
18 stopped the leak or not?
19 A. Other than it stopped showing up in
20 the creek after the fact.
21 Q. But you don't know? Do you know the
22 time frame? When did it stop showing up in the
23 creek?
24 A. I don't recall. I don't know.
L.A. REPORTING (312) 419-9292
251
1 Q. You don't know?
2 A. No.
3 Q. Okay. And when did they start
4 remediating things actually on the site at Skokie
5 Valley in your opinion?
6 A. Sometime in late April.
7 Q. Late April?
8 A. Yes.
9 Q. What did they do?
10 A. I believe they constructed some --
11 based on the Huff and Huff report, they created some
12 recovery sumps on the property, used a trench that
13 was excavated to try and find the source of the
14 release on the property, and then controlled the
15 material that was on -- or tried to control the
16 material on the property by using those two points
17 as collection sumps.
18 Q. Okay. Do you have that report with
19 you?
20 A. Yes -- not with me here.
21 Q. You don't have that report with you?
22 A. No.
23 Q. My question then to you, sir, is your
24 only basis that Skokie Valley then was a source --
L.A. REPORTING (312) 419-9292
252
1 or actually one of the bases really that Skokie
2 Valley was the source was that there was some action
3 being taken on the property itself and the discharge
4 ended but at some time that you don't know?
5 A. Yes.
6 Q. So you don't know whether or not the
7 work that was being done on the Skokie Valley
8 property was contemporaneous to the actual stopping
9 of the oil source, is that correct, because you
10 don't know when the oil source stopped; is that
11 correct?
12 A. One more time.
13 Q. Sure.
14 You had testified that you don't
15 know when the oil source stopped, so you don't know
16 whether or not the action that was taken on the
17 premises itself was contemporaneous to the oil
18 stopping?
19 MR. COHEN: I'm going to object to the
20 use of the word oil source. If he's
21 referring to oil flow from the drain tile,
22 that's one thing that we can talk about in
23 the Avon drainage ditch. In terms of oil
24 source, it's a totally ambiguous term that
L.A. REPORTING (312) 419-9292
253
1 we're not talking about yet in this case.
2 HEARING OFFICER SUDMAN: Would you
3 like to clarify that term?
4 BY MR. JAWGIEL:
5 Q. Well, sir, you don't know whether or
6 not the actions that were being taken on the SVA
7 site actually in fact stopped the contamination of
8 the Avon drainage ditch; is that correct?
9 A. Well, the procedures that were being
10 done out there are typical to be used on a piece of
11 property that's had a release to control the source
12 and protect the downstream receptor.
13 MR. JAWGIEL: I'm going to object.
14 It's nonresponsive to the question and I ask
15 that it be struck. I asked him very
16 specifically you do not know whether or not
17 in fact the actions taken on the site
18 actually stopped the leak.
19 HEARING OFFICER SUDMAN: Well, I'm not
20 going to strike the answer but I would like
21 you to elaborate as to whether that's a yes,
22 no or you don't know.
23 THE WITNESS: I would say I don't know
24 whether they were entirely responsible for
L.A. REPORTING (312) 419-9292
254
1 stopping the release to Avon Fremont ditch.
2 HEARING OFFICER SUDMAN: Thank you.
3 THE WITNESS: But it did stop.
4 BY MR. JAWGIEL:
5 Q. Okay. When you say you don't know
6 that they were entirely responsible, then there's
7 potentially other sources; is that correct?
8 A. Yes.
9 Q. Sir, what do you base your opinion on
10 that the actions taken by Skokie Valley on its site
11 in part caused the contamination to the Avon
12 drainage ditch to stop?
13 A. Experience in dealing with leaking
14 underground storage tanks on an emergency basis.
15 Q. Okay. So in your opinion, the source
16 of the oil would have been the leaking underground
17 storage tank found on Skokie Valley property; is
18 that correct?
19 A. No. I believe I said that that's how
20 I've learned how to deal with problems that are
21 moving off-site through working as an example with
22 leaking underground storage tanks.
23 Q. Did you do any follow-up investigation
24 of either this drain tile or the underground storage
L.A. REPORTING (312) 419-9292
255
1 tank?
2 A. Not that I recall.
3 Q. Do you know if the Illinois EPA did
4 any follow-up with respect to the underground tank
5 or this drain tile you were referring to?
6 MR. MURPHY: Objection, Madam Hearing
7 Officer, cumulative. We already got
8 testimony that the site was inspected in
9 December of '97 by a different inspector.
10 MR. JAWGIEL: I'm just asking if he
11 was aware of it.
12 HEARING OFFICER SUDMAN: You can
13 answer.
14 THE WITNESS: Not that I'm aware.
15 BY MR. JAWGIEL:
16 Q. Did you request that anyone follow up
17 with respect to the underground storage tank and the
18 drain tile from the Illinois EPA?
19 A. I don't recall about the underground
20 storage tank as far as follow-up.
21 Q. Were you deferring to the USEPA as far
22 as remediating this site?
23 A. Many times we defer to the USEPA to
24 take the lead on finding out on a site who is the
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1 responsible party and then --
2 MR. JAWGIEL: Your Honor, I'm going to
3 ask that the answer be stricken from the
4 record. I'm about this specific incident in
5 Skokie Valley, did they allow USEPA to take
6 over management of the remediation of this
7 site.
8 HEARING OFFICER SUDMAN: Yes.
9 Please --
10 MR. JAWGIEL: I'm not talking about
11 his policies and procedures and what they do
12 in the normal course. I want to know with
13 this particular situation, was it USEPA that
14 was taking over the remediation of the Avon
15 drainage ditch.
16 MR. COHEN: What time frame are you
17 talking about? Object to the form of the
18 question. The witness is doing his best to
19 answer his ambiguous questions but without a
20 time frame, he can't do it.
21 HEARING OFFICER SUDMAN: Would a time
22 frame help you answer the question?
23 THE WITNESS: We could try.
24
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1 BY MR. JAWGIEL:
2 Q. Subsequent to your investigation --
3 which I believe was only one day, wasn't it?
4 A. That I recall, yes.
5 Q. Okay, so you were out at this. You
6 were not familiar with this site other than the day
7 you went out there; is that right?
8 A. I believe I was out there previous,
9 but there's nothing in the record that would prove
10 that I was out there.
11 Q. Well, when was that?
12 A. I don't know. I can't recall.
13 Q. Okay. Why were you out there?
14 A. For responding to an oil spill.
15 Q. Where?
16 A. Avon Fremont ditch.
17 Q. Was it north of this spill or south of
18 the spill?
19 MR. MURPHY: Objection.
20 BY MR. JAWGIEL:
21 Q. When you were first on the site, did
22 you believe -- responding to an oil spill, was it
23 north of this spill or south of the spill?
24 A. If I could explain, in my memory, I
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1 think I was out there more than once, but in fact I
2 may have only been out there on the 19th when it was
3 noted in Betty Lavis' report.
4 Q. Okay. So as we sit here today, you
5 have no recollection specifically of being out there
6 but it may or may not have happened?
7 A. That's correct.
8 Q. Now, other than that one day that you
9 were out there doing your investigation on April
10 19th of 1995, after that period of time, did you
11 have the USEPA -- or did the USEPA take over the
12 remediation of this spill?
13 A. I believe -- well, in the file it
14 indicates that there is going to be a joint
15 follow-up by both the USEPA, and I believe the Huff
16 and Huff report states that they would contact the
17 leaking underground storage tank program.
18 Q. Well, I'm not asking what was in the
19 memo. I'm asking you what practically happened.
20 From a practical standpoint you have not been able
21 to tell us anything that was done until 1997, I
22 believe, as far as going out to the site by the
23 Illinois EPA.
24 My question is very simple.
L.A. REPORTING (312) 419-9292
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1 Between your visit of April 19, 1995 and the visit
2 back in December of 1997, did the Illinois EPA do
3 anything to manage the remediation of the spill in
4 the Avon drainage ditch?
5 A. Not to my direct knowledge.
6 Q. And in your experience, sir, given
7 that gap of period of time, has it been your
8 experience then that the Illinois EPA was deferring
9 to the USEPA with respect to remediation of this
10 site?
11 A. There are other programs within the
12 agency that might be involved in a situation like
13 this.
14 Q. Are you aware of any other programs in
15 your agency that were involved in this situation?
16 A. Yes.
17 Q. Which?
18 A. The leaking underground storage tank
19 program.
20 Q. Okay. Have you reviewed any reports
21 from the leaking underground storage program?
22 A. No, I haven't.
23 Q. Do you know whether or not after the
24 storage tank was taken out that there was any
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1 testing done of the soil around the storage tank to
2 determine the content?
3 A. No, I do not.
4 Q. Do you know whether or not -- what was
5 the extent of the oil present in this leaking oil
6 storage tank or whether or not it was determined
7 whether or not it was the source of the actual leak
8 after the tank was taken out?
9 MR. COHEN: Object to the form of the
10 question.
11 HEARING OFFICER SUDMAN: I don't
12 recall.
13 MR. COHEN: Excuse me.
14 THE WITNESS: I'm sorry.
15 HEARING OFFICER SUDMAN: When there's
16 an objection pending, Mr. Klopke, you can
17 just hang on for a second.
18 THE WITNESS: I'm sorry.
19 HEARING OFFICER SUDMAN: What exactly
20 do you object to?
21 MR. COHEN: At least compound. I
22 couldn't count all the different ones.
23 MR. JAWGIEL: Well, if he can't count
24 them, then he can't bring them.
L.A. REPORTING (312) 419-9292
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1 (Laughter.)
2 I'll rephrase the question.
3 HEARING OFFICER SUDMAN: Okay.
4 BY MR. JAWGIEL:
5 Q. Are you aware that after the -- of any
6 conclusion whether or not the leaking storage tank
7 was the actual source of contamination in the Avon
8 drainage ditch after the tank was taken out and the
9 area around the tank was analyzed?
10 A. I do not have any direct knowledge of
11 that.
12 Q. So your knowledge is based upon --
13 what was the date of the report from Huff and Huff?
14 A. May 1.
15 Q. Of what year?
16 A. 1995.
17 Q. Okay. And the report we have here in
18 Exhibit 25 was May 3, 1995. So your extent of what
19 was going on in this site ended basically in May of
20 1995; is that correct?
21 A. To the best of my knowledge, yes.
22 Q. Okay. So you don't know what may or
23 may not have happened after that time as far as what
24 tests were taken, what conclusions were made, what
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1 was the determination as far as what was present on
2 the SVA site; is that correct?
3 A. That's correct.
4 Q. Are you aware of a landfill that was
5 in this area?
6 A. No, I'm not aware.
7 Q. So you don't know one way or the
8 other; is that correct?
9 A. I don't recall visiting a landfill
10 back then.
11 Q. Whether you visited or not, you don't
12 know if there was one present?
13 A. That's correct.
14 MR. MURPHY: Madam Hearing Officer,
15 I'm going to ask -- I'm going to show an
16 objection that if counsel does not perfect
17 his impeachment on this issue, he cannot
18 simply interject facts that may or might have
19 existed.
20 If he's going to be talking about
21 this landfill and it's going to be relevant,
22 he's got to later on show that it existed,
23 otherwise, I'm going to move to strike this
24 line of questioning.
L.A. REPORTING (312) 419-9292
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1 MR. JAWGIEL: Well, isn't that sort of
2 putting the cart before the horse, your
3 Honor? If he's going to move to strike it
4 but I tie it in later into my case, it's
5 going to be very difficult.
6 So yes, I will tie it in my case.
7 I will ask people who do have knowledge of
8 what is actually in this area but at this
9 point in time, it's cross-examination. I'm
10 given a liberal birth.
11 HEARING OFFICER SUDMAN: Okay. Your
12 objection is noted. I'll allow you to ask it
13 for now.
14 BY MR. JAWGIEL:
15 Q. Has it been your experience, sir, that
16 farms have heating oil on their premises?
17 A. Yes.
18 Q. Has it been your experience that farms
19 have fertilizer on their premises?
20 A. Yes.
21 Q. Has it been your experience that farms
22 generally have diesel fuel on their premises?
23 A. Yes.
24 Q. Did you check the history of the use
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1 of the SVA site?
2 A. I don't recall doing that.
3 Q. Are you aware of any prior violations
4 by SVA of any environment laws?
5 A. Not directly.
6 Q. Are you aware of any economic gain SVA
7 in your opinion would have had by having oil
8 discharge in the manner in which you indicated
9 either through a leaky underground storage tank or
10 this drain tile?
11 MR. MURPHY: Madam Hearing Officer,
12 I've got an objection. This is beyond the
13 scope of direct, beyond the scope of his
14 expertise, and this is not the witness for
15 this.
16 MR. JAWGIEL: If he talks about
17 responsible parties I want to flesh out what
18 responsible parties are. A responsible party
19 would be a party that undertook something and
20 part of this claim is that they have some
21 sort of economic gain by doing so.
22 HEARING OFFICER SUDMAN: Would you
23 repeat the question?
24 MR. JAWGIEL: Sure.
L.A. REPORTING (312) 419-9292
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1 BY MR. JAWGIEL:
2 Q. Are you aware of any economic gain
3 Skokie Valley Asphalt would have gained or would
4 have had by allowing or having fuel -- strike the
5 question.
6 Are you aware of any economic gain
7 Skokie Valley Asphalt would have had by having a
8 leaky underground storage tank or a drain tile with
9 oil in it?
10 HEARING OFFICER SUDMAN: To address
11 your objection, I'm going to -- I agree this
12 is probably not within his scope of
13 expertise, but he is a professional. I'm
14 going to allow him to answer it and the Board
15 can weigh -- I think this goes to weight
16 rather than admissibility.
17 So please answer the question.
18 THE WITNESS: As far as it leaking out
19 of the tank, if there's a cost associated
20 with repairing that tank, there might be some
21 benefit to allowing it to drain, but that
22 would be the only economic benefit I could
23 see.
24
L.A. REPORTING (312) 419-9292
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1 BY MR. JAWGIEL:
2 Q. Well, with respect to allowing the
3 tank to drain, isn't it true that if the tank is
4 leaking, you've got to refill it faster in your
5 experience?
6 A. It depends on how fast the release is
7 and what the cost is in buying the product versus
8 replacing the tank to hold it.
9 Q. Do you have any information that
10 Skokie Valley at the time of your investigation on
11 April 19, 1995 actually knew that its tank was
12 leaking?
13 A. No.
14 Q. Are you aware of any report that makes
15 the conclusion that above ground storage tanks were
16 a source of the actual contamination into the Avon
17 drainage ditch?
18 A. No.
19 Q. When you went on Mitch's Green Thumb
20 Landscaping facility, was this a facility that had
21 trucks and equipment where they would use gasoline,
22 oil, diesel when you were there that you could see?
23 A. I believe I recall seeing a typical
24 landscaping operation which would have vehicles
L.A. REPORTING (312) 419-9292
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1 there.
2 Q. Did you inquire or investigate whether
3 or not they had underground storage tanks with any
4 sort of the oils?
5 A. That, I don't recall.
6 Q. Are you aware of any of the substances
7 that you saw in the Avon drainage ditch at the time
8 of your investigation of April 19, 1995 actually
9 making their way into the
10 Third Lake area?
11 A. Other than the drainage ditch, I did
12 not inspect Third Lake at that time that I recall.
13 MR. JAWGIEL: Okay. That's all I
14 have. Thank you, sir.
15 HEARING OFFICER SUDMAN: Mr. Murphy,
16 any redirect?
17 MR. MURPHY: Just a few.
18 R E D I R E C T - E X A M I N A T I O N
19 BY MR. MURPHY:
20 Q. You testified that Skokie Valley
21 Asphalt Company was an asphalt company, correct?
22 A. Correct.
23 Q. To your knowledge, did they use trucks
24 as part of their operations?
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1 MR. JAWGIEL: Your Honor, that goes
2 beyond the scope of my cross-examination.
3 MR. MURPHY: It does not. I'm trying
4 to tie in Mitch's Green Thumb with the trucks
5 that are on that site.
6 MR. JAWGIEL: I did not go into the
7 actual operation of Skokie Valley Asphalt at
8 all in my cross-examination. I did not ask
9 him what Skokie Valley did, what sort of
10 equipment they used, anything along those
11 lines.
12 HEARING OFFICER SUDMAN: I know that,
13 but you did ask him about the presence of
14 trucks nearby.
15 MR. JAWGIEL: The presence of trucks
16 on a different area has nothing to do with
17 this question. He's asking the use of those
18 types of vehicles in Skokie Valley and I
19 didn't go into that area. He also went into
20 the area of what was present in other
21 adjoining properties, so I was just following
22 up on that line of questioning.
23 MR. MURPHY: I'm just trying to
24 distinguish contamination coming from
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1 different sites than from this site. And if
2 the substance is diesel fuel, trucks being
3 operated on Skokie Valley are just as
4 relevant as trucks operating in Mitch's
5 Green Thumb.
6 HEARING OFFICER SUDMAN: I agree. He
7 may answer the question.
8 THE WITNESS: Could you repeat it?
9 MR. MURPHY: Sure.
10 BY MR. MURPHY:
11 Q. Did Skokie Valley Asphalt Company use
12 commercial, industrial grade trucks as part of their
13 operation --
14 MR. JAWGIEL: I'm going to object
15 to -- without foundation and a time frame.
16 BY MR. MURPHY:
17 Q. -- to your knowledge?
18 A. Yes.
19 Q. Mr. Klopke, is it your experience that
20 people or companies that are not truly responsible
21 for the release, number one, say that they found a
22 leaking underground storage tank on their property
23 and then take responsibility to address the
24 environmental problems caused by that release?
L.A. REPORTING (312) 419-9292
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1 MR. JAWGIEL: Your Honor, objection.
2 That goes beyond the scope of my direct
3 examination. There has to be a foundation
4 laid.
5 MR. MURPHY: He talked on and on about
6 what significance of what happened or what
7 was documented in tab 25, the USEPA report,
8 and this runs in the same direction. This is
9 taken right from that report.
10 HEARING OFFICER SUDMAN: I agree. The
11 witness may answer.
12 THE WITNESS: Repeat the question,
13 please.
14 MR. MURPHY: Sure. I'll do it slowly.
15 MR. JAWGIEL: If you could just note
16 my objection for the record.
17 HEARING OFFICER SUDMAN: Your
18 objection is noted, sir. Thank you.
19 BY MR. MURPHY:
20 Q. Is it your experience that people or
21 companies that are not truly responsible for the
22 release say to the regulatory agencies that they
23 found a leaking underground storage tank on the site
24 and then take responsibility for whatever
L.A. REPORTING (312) 419-9292
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1 environmental problems are caused by that release?
2 A. No.
3 MR. MURPHY: Nothing further.
4 R E C R O S S - E X A M I N A T I O N
5 BY MR. JAWGIEL:
6 Q. Sir, based on your investigation, are
7 you aware of any environmental impact from the
8 discharge into the Avon drainage ditch?
9 MR. MURPHY: Madam Hearing Officer, I
10 have an objection as to relevance. There
11 is -- environmental impact is not a part of
12 this case. It is just simply not a part of
13 this case.
14 Now they can try to make it that
15 way and they have tried in the past, but all
16 that matters is that there was a discharge
17 into the waters of the State of Illinois that
18 caused, threatened or allowed water
19 pollution, not whether there was an impact.
20 MR. JAWGIEL: Your Honor, it goes to
21 42H-A. It goes to the gravity and duration
22 of the impact -- of the offense.
23 HEARING OFFICER SUDMAN: And which
24 line of questioning for his redirect does it
L.A. REPORTING (312) 419-9292
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1 go to?
2 MR. JAWGIEL: He said take
3 responsibility for damaging the environment
4 and in his question -- in the last question
5 that he asked he said, has it been your
6 experience that people who have a -- don't
7 have a leaky storage tank and don't take
8 responsibility for cleaning up the
9 environment.
10 HEARING OFFICER SUDMAN: And what was
11 your question again?
12 MR. JAWGIEL: My question is was there
13 any environmental impact from the spill into
14 the Avon drainage ditch.
15 MR. MURPHY: Can the record also show
16 that I do object?
17 HEARING OFFICER SUDMAN: Yes. The
18 record will show that you object.
19 You may give your professional
20 opinion on that if you know.
21 THE WITNESS: Well, the sheen on the
22 body of water in itself is a violation of the
23 Act -- I think, it's 12A. There's also the
24 odor problem which has -- you know, which is
L.A. REPORTING (312) 419-9292
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1 a possibility of another other violation.
2 Material can impact, you know,
3 banks and soils downstream and those are the
4 only impacts I can think of.
5 BY MR. JAWGIEL:
6 Q. But my question is, was there actually
7 an environmental impact from this spill, not what it
8 could or couldn't have done or possibly have done or
9 anything along those lines? My question is very
10 specific. Was there actually an environmental
11 impact with respect to this spill?
12 MR. MURPHY: Objection, vague and
13 outside the scope.
14 MR. JAWGIEL: I don't think it's vague
15 at all. I'm trying to get a clarification
16 and an answer to my question.
17 HEARING OFFICER SUDMAN: Well, I think
18 he just answered. I mean, he said there was
19 sheen and odor. I don't know what more
20 you're fishing for. I think he's answered
21 it.
22 MR. JAWGIEL: I'm really not fishing
23 for anything. What I'm really asking him to
24 do is answer my question. He said, well,
L.A. REPORTING (312) 419-9292
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1 there could have been. I want to know in his
2 investigation did he come to any conclusion
3 based on his position that there was an
4 environmental impact from this particular
5 contamination; that's all I'm asking. It's a
6 very simple question.
7 HEARING OFFICER SUDMAN: Okay. Would
8 you please repeat your answer? I thought you
9 had answered it.
10 THE WITNESS: I would say yes, the
11 impact is the sheen and the odor.
12 BY MR. JAWGIEL:
13 Q. Okay. Nothing else?
14 A. Not that I'm aware of.
15 MR. JAWGIEL: Okay. That's all.
16 Thank you.
17 HEARING OFFICER SUDMAN: Anything
18 further for you, Mr. Murphy?
19 MR. MURPHY: No.
20 HEARING OFFICER SUDMAN: Are we done
21 with this witness?
22 MR. COHEN: Yes.
23 HEARING OFFICER SUDMAN: Okay. Thank
24 you, Mr. Klopke, you may step down.
L.A. REPORTING (312) 419-9292
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1 (Witness excused.)
2 MR. COHEN: Can we go off the record?
3 HEARING OFFICER SUDMAN: Yes. Let's
4 go off the record.
5 THE REPORTER: Okay.
6 (Whereupon, a discussion
7 was had off the record.)
8 HEARING OFFICER SUDMAN: Okay. We'll
9 go back on the record now and the People may
10 call their next witness.
11 MR. COHEN: Your Honor, at this time,
12 the People would call Richard Frederick.
13 HEARING OFFICER SUDMAN: Would the
14 court reporter please swear in the witness?
15 THE REPORTER: Sure.
16 (Witness sworn.)
17 WHEREUPON:
18 RICHARD JOHN FREDERICK
19 called as a witness herein, having been first duly
20 sworn, deposeth and saith as follows:
21 D I R E C T E X A M I N A T I O N
22 BY MR. COHEN:
23 Q. Sir, would you please state you full
24 name and spell your last name?
L.A. REPORTING (312) 419-9292
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1 A. Richard John Frederick,
2 F-R-E-D-E-R-I-C-K.
3 Q. Mr. Frederick, what's your position
4 with Skokie Valley Asphalt Company, Incorporated?
5 A. Vice president in charge of
6 construction.
7 Q. Were you part owner of the business?
8 A. Yes.
9 Q. What percent of the business did you
10 own?
11 A. Fifty percent.
12 Q. Who owned the other 50 percent?
13 A. My brother Larry.
14 Q. What was his position or title?
15 A. He was the president.
16 Q. When Skokie Valley Asphalt was in
17 business, did you and your brother have exclusive
18 control over the business?
19 MR. JAWGIEL: Your Honor, I'm going to
20 object, legal conclusion. That's for a legal
21 conclusion, exclusive control. First of all,
22 form of the question.
23 How can both of them have
24 exclusive control? Exclusive in and of
L.A. REPORTING (312) 419-9292
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1 itself means individual. But along with
2 that, it asks for a legal conclusion.
3 HEARING OFFICER SUDMAN: Would you
4 like to rephrase the question?
5 BY MR. COHEN:
6 Q. Were you and your brother in charge of
7 the whole operation?
8 MR. JAWGIEL: Again, I'm going to
9 object.
10 HEARING OFFICER SUDMAN: I'm going to
11 allow it. I think it's fine.
12 THE WITNESS: Along with other foremen
13 and superintendents.
14 BY MR. COHEN:
15 Q. What type of business was Skokie
16 Valley Asphalt?
17 A. An asphalt paving contractor.
18 Q. Where was your business located?
19 A. Grayslake was the main office and we
20 had a plant out in McHenry, Illinois.
21 Q. What was the address of the Grayslake
22 location?
23 A. 768 South Lake Street.
24 Q. And that's in Lake County, Illinois,
L.A. REPORTING (312) 419-9292
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1 correct?
2 A. Yes.
3 Q. What did you do at the Grayslake
4 location?
5 A. We had our office, our estimating --
6 you know, the office and all the people that did the
7 billing and a maintenance garage to work on various
8 equipment and trucks and we kept some asphalt
9 liquid, asphalt primer coats and a couple of tanks
10 there.
11 Q. Is that also where you had dispatched
12 the trucks from?
13 A. Yes.
14 Q. Did you also storage some trucks at
15 that facility?
16 A. Yeah, trucks and equipment.
17 Q. How long was Skokie Valley Asphalt at
18 the Grayslake location?
19 A. I think since 1978.
20 Q. And was there a business at that same
21 location before Skokie Valley Asphalt?
22 A. Yes, sir.
23 Q. What business was that?
24 A. It was another asphalt company.
L.A. REPORTING (312) 419-9292
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1 Q. Is that Libertyville Asphalt?
2 A. Yes.
3 Q. Who owned that business?
4 A. My parents.
5 Q. And did you work for them while it was
6 Libertyville Asphalt?
7 A. For a while, yes.
8 Q. Did you ever make asphalt at the
9 location in Grayslake?
10 A. Yes. We had an asphalt plant there.
11 Q. Do you recall when you stopped making
12 asphalt at the Grayslake location?
13 A. 1981.
14 Q. What were your responsibilities as
15 vice president in running Skokie Valley Asphalt?
16 A. I helped with estimating and getting
17 the work, you know, completed, dealing with various
18 superintendents and foremen to get jobs done.
19 Q. Now, when you're talking about these
20 jobs, these are jobs, off-site road construction
21 jobs?
22 A. Right, parking lots, road
23 construction.
24 Q. Your primary function was construction
L.A. REPORTING (312) 419-9292
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1 management, is that a good way to say it?
2 A. Yes.
3 Q. And your responsibilities included
4 personnel, equipment and materials, scheduling and
5 budgeting for that type of work, correct?
6 A. Right.
7 Q. You also were involved in the hiring
8 and control of all the employees and you reviewed
9 and approved the timecards, union contracts, and had
10 personnel relation issues, correct?
11 A. Right, but not only employees. In
12 fact, me and my brother share that -- we shared that
13 duty.
14 Q. You also had the responsibility for
15 all the equipment matters, purchasing and
16 maintaining the equipment, daily review of equipment
17 matters with outside maintenance shops?
18 A. Right.
19 Q. Your duties also included scheduling
20 of all jobs, employees, and subcontractors?
21 A. Some. Some of that was along with
22 other estimators and my brother. I mean, it was all
23 shared but I did probably the majority of that.
24 Q. Okay. And I believe you also had
L.A. REPORTING (312) 419-9292
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1 responsibility for traffic control and safety
2 matters out on job sites?
3 A. Right.
4 Q. And you also had responsibility for
5 reviewing and approving contract items, bills, and
6 invoices?
7 A. Some, yes.
8 Q. What were your brother's
9 responsibilities as president of Skokie Valley
10 Asphalt?
11 A. He did more of the office things,
12 estimating, you know, whatever, insurance, banking
13 matters, things like that.
14 Q. Most of his stuff was related to
15 financial matters?
16 A. Yes, and estimating.
17 Q. Maybe you should explain on the record
18 what you mean by estimating?
19 A. Well, when you bid a job, I mean, he
20 would have like estimators working for him and he
21 would work with -- well, not in any private work, in
22 sales. They put a bid together, you know, the
23 estimating, what it's going to cost and he was more
24 involved in that.
L.A. REPORTING (312) 419-9292
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1 Q. Did your brother also do work as a
2 liaison with the banks and suppliers and purchasing
3 materials, making payments, managing payroll, and
4 reviewing accounts receivable and accounts payable?
5 A. Right.
6 Q. Did his duties also involve on-site
7 meetings, reviewing on-site work, daily consultation
8 with foremen and engineers, liaison with state and
9 county, federal officials and private owners for
10 whom work was performed?
11 A. Right.
12 Q. Now, I believe you were in the hearing
13 room when you heard Mike Garretson's testimony about
14 the NPDES permit that Skokie Valley Asphalt had?
15 A. Yes.
16 Q. And you're familiar that Skokie Valley
17 Asphalt did have an NPDES permit?
18 A. Yes, I am.
19 Q. And who signed the DMRs or the
20 discharge monitoring reports that were submitted to
21 the Illinois EPA on behalf of Skokie Valley Asphalt
22 Company?
23 A. I believe I signed them. If I wasn't
24 there, I'm sure my brother signed them but I
L.A. REPORTING (312) 419-9292
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1 probably signed them most of the time.
2 Q. Can you describe for the Board the
3 procedure Skokie Valley Asphalt Company used to put
4 the data together for the discharge monitoring
5 reports and if I use DMRs, you'll understand that
6 term?
7 A. Yeah.
8 Basically when we got the permit,
9 I remember we set up with like a couple of our
10 dispatchers out in the front, one being more
11 responsible for it, and he would have somebody in
12 our yard, a laborer or somebody, go down and get the
13 water sample from the discharge pipe and deliver it
14 over to the Northshore Sanitary District at that
15 time.
16 They did our testing of the water
17 and they would mail -- I believe mail us back a
18 report. We would give it to the dispatcher that was
19 in charge of it -- that would get funneled back to
20 him -- and he would fill out the report and have me
21 sign it and mail it down to the EPA.
22 Q. Could you please tell the Board the
23 name of that employee who usually took care of
24 filling out the DMR?
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1 A. Bob Christiansen.
2 Q. Now, and how often do you recall that
3 Bob Christiansen was typically bringing you a DMR to
4 sign?
5 A. Well, he was kind of -- I mean, we
6 left him in charge, but I guess he was supposed to
7 do it every month.
8 Q. What would you do when Bob
9 Christiansen would bring you a DMR report to sign?
10 A. I would look at it and look at
11 the -- there were three things, I believe, three or
12 four that, as you've talked about, the suspended
13 solids, oil, grease, and maybe pHs -- does that
14 sound right? And I had a --
15 Q. Would it help if you looked at one of
16 the forms?
17 A. I can. I mean, I don't know if I need
18 to or not because I would answer one other thing,
19 total suspended solids, it was when we would get a
20 big storm. And on our property, we have a farm
21 field that's 40 acres that flows into our retention
22 basin, plus our ten acres and I asked people -- I
23 think I asked Jim Huff, and I might have asked
24 somebody at the Illinois EPA, is there a problem
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1 with total suspended solids? And they said, not
2 when you have a big storm.
3 I mean, if you can see storm water
4 coming off of a 40-acre field that's just plowed for
5 the winter, that brings dirt and everything into our
6 ponds and are filthy and so we just always let them
7 go.
8 I don't believe we ever were over
9 on oil, grease, and pH. But as far as -- I know you
10 had asked that before and that was talked about up
11 here and we discussed that. I'd sign them and mail
12 them on to the EPA.
13 Q. Now, what do you mean by that you
14 would check for the three things in the DMR when
15 Bob Christiansen would bring them to --
16 A. I always would just go get them. I
17 might not have looked at them all the time. If I
18 had time, I would look at them.
19 Q. Would you just look at them on the DMR
20 reports and then sign the report or would you do
21 anything else?
22 A. That's all I had ever done. And I
23 probably didn't look at them all the time. Bob was
24 mainly the one who was in charge of doing that. I
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1 kind of just signed them -- if I was in a hurry, I
2 would just sign them. Bob was the responsible
3 person.
4 Q. Did you yourself ever do anything to
5 determine whether the information contained on the
6 DMR reports filled out by Bob Christiansen was
7 accurate?
8 A. No.
9 Q. Did you ever check the report or
10 letter that you got back from the Northshore
11 Sanitary District to see whether Bob Christiansen
12 had written that information down correctly on the
13 DMR?
14 A. Not that I can remember. No, sir.
15 Q. There's a big white binder in front of
16 you. Why don't we go to the front of that binder
17 and if you would just flip to tab one behind the tab
18 there, do you recognize that document?
19 A. I mean, I think this is a copy of
20 our -- I mean, I'm sure that I've seen this.
21 Q. Is that a copy of the NPDES permit?
22 A. I'm sure that it is, yes.
23 Q. Directing your attention to
24 Complainant's Exhibit No. 2, do you recognize that
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1 document?
2 A. It's a -- what do you call them?
3 Q. A DMR?
4 A. Yeah.
5 Q. Is that the DMR that Skokie Valley
6 Asphalt submitted?
7 A. I mean, they look like it. I would
8 sign these usually.
9 Q. Is that your signature at the bottom?
10 A. Yes.
11 Q. And is that your name at the bottom of
12 the page?
13 A. Yes.
14 Q. Maybe we can just flip through these
15 carefully. If something doesn't look right, you can
16 bring it to my attention.
17 Complainant's Exhibit No. 3, is
18 that also a DMR submitted by Skokie Valley Asphalt
19 Company?
20 A. Yes.
21 Q. And is that your signature at the
22 bottom of that page?
23 A. Yes, it is.
24 Q. Complainant's Exhibit No. 4 is a DMR
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1 submitted by Skokie Valley Asphalt Company?
2 A. Yes.
3 Q. And your name appears at the bottom of
4 that page?
5 A. Yes.
6 Q. Complainant's Exhibit No. 5, another
7 DMR with your name at the bottom of the page?
8 A. Yes.
9 Q. Complainant's Exhibit No. 6, did you
10 have anything to do with the NPDES permit renewal
11 application?
12 A. Not that -- my brother and I did talk
13 about it, so I guess I did a little bit, yes.
14 Q. Okay. Your signature is not on that
15 document, is it?
16 A. No.
17 Q. Whose signature does appear on that
18 document?
19 A. Larry's. It's my brother's.
20 Q. Directing your attention to People's
21 Exhibit No. 7, do you recognize that document?
22 A. I'm sure that I saw it, but I mean,
23 it's on our letterhead to the IEPA.
24 Q. And does that relate to submission of
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1 the additional information related to your NPDES
2 permit renewal application? I think you might see
3 that at the top of page 1.
4 A. Yes, I guess so.
5 Q. Do you not recall anything about
6 needing to supply the Illinois EPA with additional
7 information about the permit renewal application?
8 A. All I know -- I mean, the only thing
9 that I remember really discussing with my brother is
10 that we were told that we were going to be able to
11 go in under a blanket permit and that's what
12 our -- that's what we felt we were going to be able
13 to do.
14 Q. But do you remember the Illinois EPA
15 asking you --
16 A. I don't remember that.
17 Q. Okay.
18 A. No, I don't.
19 Q. Okay. After you were issued the NPDES
20 permit in April, May of 1986, did you start
21 submitting DMR reports at that time?
22 A. I remember we had to get our -- I
23 think we had to get our discharge under the railroad
24 tracks, so I don't think we started right away. I
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1 think we started when we started discharging.
2 I can't tell you when that was. I
3 think we had the permit for a little while before we
4 started discharging.
5 Q. Let me direct your attention to
6 Complainant's Exhibit No. 26. Do you recognize that
7 exhibit?
8 A. Somewhat. I mean, I think it tells
9 why we -- yes, I signed this.
10 Q. Can you describe for the record what
11 that is?
12 A. It's a letter to the IEPA, I believe,
13 that we didn't do any reports because we weren't
14 discharging into the area that -- where we had the
15 permit. We were in the process of putting our
16 discharge tile under the tracks.
17 Q. And what is the date of that letter?
18 A. November 9, 1988.
19 Q. And who signed that letter on behalf
20 of Skokie Valley Asphalt?
21 A. I did.
22 Q. Now, one thing that caught my
23 attention under there is that your title in that
24 letter is --
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1 A. President.
2 Q. -- president.
3 Was that a typo?
4 A. Typographical error.
5 Q. Okay. Is that a true and correct copy
6 of the letter?
7 A. I believe that it is, sure. I think
8 this tells about when we finished our piping when
9 Metra was buying the railroad, I believe, or
10 Milwaukee Road at that time and we had a lot of
11 trouble getting a permit, auger, under the tracks.
12 Q. Let me direct your attention to
13 Complainant's Exhibit No. 27. It might be easier if
14 you open that binder all the way.
15 A. I can read it.
16 Q. Do you recognize that?
17 A. Right.
18 Q. Can you describe for the Board or the
19 record what that is?
20 A. It's a letter from Bob Christiansen
21 about why we didn't file to report some discharge
22 monitoring and it sounds like -- I mean, we did.
23 Bob had a heart attack. There were periods in there
24 where we had new people involved and whether or
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1 not -- this was a letter stating that we didn't file
2 some of these reports.
3 Q. And what is the date of that letter?
4 A. January 17, 1990.
5 Q. And does that appear to be an accurate
6 copy of that letter?
7 A. I would say, sir, yes.
8 Q. And Bob Christiansen --
9 A. Yes.
10 Q. -- was the man you described
11 earlier --
12 A. Right.
13 Q. Could you try and let me finish my
14 question?
15 A. I'm sorry.
16 Q. The court reporter can only take one
17 of us talking at the same time.
18 HEARING OFFICER SUDMAN: Yes.
19 Thank you.
20 BY MR. COHEN:
21 Q. Bob Christiansen was the man you
22 explained earlier who would normally transpose the
23 information from the Nort shore Sanitary District --
24 A. Right.
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1 Q. -- and bring the DMR for your
2 signature, correct?
3 A. Right.
4 Q. Do you recall on your site in
5 Grayslake there ever being a gasoline pump?
6 A. Oh, sure.
7 Q. Was there still one there when you
8 sold the business?
9 A. Yes.
10 Q. Was there ever a gasoline pump on the
11 site that was removed?
12 A. I mean, we had an above ground pump
13 and -- I mean, when we, you know, had to go to
14 double wall tanks and everything, we put a whole new
15 system in.
16 Q. Was there ever a time where you had a
17 gasoline pump with an underground storage tank?
18 A. It could have been, yes. I mean, that
19 could have been before our time there.
20 Q. Do you recall there being one during
21 Skokie Valley Asphalt?
22 A. Not when Skokie Valley was there --
23 well, there could have been one but -- yes, I
24 believe there could have been.
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1 Q. I think it might have been on the
2 south end?
3 A. It could be, yes.
4 Q. And do you recall when Skokie Valley
5 would have removed that pump and underground storage
6 tank?
7 A. Probably sometime in the early '80s.
8 Q. You mentioned earlier that Skokie
9 Valley Asphalt stopped producing asphalt at the
10 Grayslake location I think you said 1981 or 1982?
11 A. Right.
12 Q. What did Skokie Valley Asphalt have to
13 do to dismantle that operation?
14 A. Not much. I mean, it's like a big
15 erector set. You take the asphalt and it gets --
16 they put it down -- it comes in in pieces and it
17 goes out in pieces.
18 Q. Maybe for those of us who don't know
19 much about asphalt, can you describe what pieces
20 comprised the plant that you had to take down?
21 A. There were bins that the aggregate --
22 before it's dried there's like five or six bins --
23 Q. I'm sorry?
24 A. They're bins. They're open bins that
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1 you dump into with an end-loader.
2 Q. Bins?
3 A. Bins.
4 Q. B-I-N-S?
5 A. Right.
6 And with the conveyor underneath
7 that, the conveyor goes up into a rotary dryer that
8 dries the aggregate sand and gravel and that
9 carries -- there's an elevator that carries it up to
10 the top of the plant where there's a screen because
11 there's different sizes of the -- large stones,
12 small stones and sand and they -- that screen
13 separates those into bins that are in this plant.
14 This plant goes up and down --
15 maybe it's 80 or 90 feet tall -- and that goes into
16 bins. And underneath those bins, there's a weigh
17 hopper and you draw out a certain amount for each
18 batch of asphalt into that weigh hopper of the
19 aggregate and drops it into the pug mill. There's
20 also --
21 Q. Excuse me. What is a pug mill?
22 A. That's the mixer; it's like your egg
23 beater.
24 And then there's the asphalt tanks
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1 over here (indicating) that have a pump that go up
2 to a weigh bucket and that weigh
3 bucket -- it's on a scale also and that pumps it
4 into the weigh bucket.
5 You get so much asphalt in the
6 weigh bucket and that dumps it into the pug mill
7 with the -- that's the liquid. It's about 95
8 percent sand and gravel, five percent liquid
9 asphalt, mixes it up, drops it into the truck.
10 Q. Now, we heard from, I believe,
11 Mr. Klopke and Mr. Kallis that there are above
12 ground storage tanks for liquid asphalt that --
13 A. Right. Those are different kind of
14 tanks. The other tanks for the asphalt cement were
15 removed when we sold the plant in 1981 or -- it was
16 right around '81 or '82.
17 Q. How did you fuel the asphalt plant
18 when it was --
19 A. Gas.
20 Q. -- in place?
21 A. Natural gas.
22 Q. And what was the source of that
23 natural gas, how did you --
24 A. We have a big line coming into the
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1 yard, like an eight or ten-inch line.
2 Q. Was that the only source of fuel?
3 A. Yes.
4 Q. And how did you supply liquid asphalt
5 at the asphalt plant?
6 A. They were in tanks, above ground
7 tanks, and then there was lines that came out of
8 those tanks and went up to the weigh bucket, not
9 underground, they were above ground.
10 Q. The tanks were above ground?
11 A. Yes.
12 Q. And where did the lines go?
13 A. They went right out of the tanks and
14 up into the tower, the tower itself, and they were
15 controlled -- it was like an automatic valve that
16 would dump into the weigh bucket and shut off and --
17 you know, turn on and off.
18 Q. And when you stopped producing asphalt
19 at the site in 1982, is that also the year where you
20 tore down --
21 A. Yes.
22 Q. -- or took down this equipment?
23 A. Yes.
24 Q. Was this equipment then moved to the
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1 McHenry location?
2 A. No. We sold the plant at that time.
3 We had another plant in McHenry.
4 Q. Your also heard mention that there
5 were some underground storage tanks on your site --
6 A. Yes.
7 Q. -- through approximately 1995, 1996?
8 A. Right.
9 Q. Do you recall when Skokie Valley
10 Asphalt stopped using those underground storage
11 tanks?
12 A. In that period when we had hired
13 Mr. Huff and when we had a leak in one of them, we
14 took them all out of the ground at that time.
15 Q. Were you using those underground
16 storage tanks up until that time?
17 A. Right. I believe there was one for
18 the garage and two for -- one or two for waste oil
19 in back of the garage -- I can't remember --
20 underground.
21 Q. And what were you using waste oil for?
22 A. It would just be draining oil from the
23 trucks and then we would have people come in and
24 take it up and out.
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1 Q. When did you dissolve Skokie Valley
2 Asphalt Corporation?
3 MR. JAWGIEL: Objection to the
4 relevance, your Honor.
5 HEARING OFFICER SUDMAN: Why?
6 MR. JAWGIEL: Well, I don't know what
7 the relevance is of the corporate status.
8 HEARING OFFICER SUDMAN: Well, you
9 have actually a standing objection on that
10 through your motion, so I'm going to allow
11 him to answer it.
12 THE WITNESS: We sold the company in
13 1998 to one of our competitors.
14 BY MR. COHEN:
15 Q. And did you also dissolve the
16 corporation in 1998?
17 A. I believe -- whatever the -- there
18 were so many things going on at that time. I
19 can't -- I don't know exactly what the accountants
20 and the attorneys did to be very honest with you and
21 I don't understand it to this day.
22 So it was a hurry deal -- a
23 hurry-up deal and so it's kind of distasteful to me
24 and I don't like to talk about it.
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1 Q. Well, I'm sorry to bring it up but we
2 have to.
3 A. I know we have to talk about it.
4 Q. Does Skokie Valley Asphalt Company,
5 Incorporated still exist today?
6 A. I don't believe so. I think our
7 competitor has the name.
8 Q. Who was your competitor?
9 A. That bought the company.
10 Q. What was their name?
11 A. Curran Contracting.
12 Q. But they don't use the name Skokie
13 Valley Asphalt?
14 A. No, they don't.
15 Q. When you sold the company in 1998, how
16 much did you sell it for?
17 MR. JAWGIEL: Objection, your Honor,
18 with respect to how much and as to relevance
19 at this point in time.
20 HEARING OFFICER SUDMAN: Overruled.
21 You can answer.
22 THE WITNESS: Well, you gave a number
23 out. I think you said $8 million if that's
24 what it was. It was somewhere in that
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1 neighborhood, between the 7 and $8 million.
2 Most of it went to suppliers. They wrote
3 checks directly to our suppliers, a lot of
4 it.
5 BY MR. COHEN:
6 Q. Was there a written agreement?
7 A. Oh, yeah.
8 MR. JAWGIEL: Your Honor, if you just
9 want to note for the record we're, obviously,
10 going to have a standing objection to --
11 HEARING OFFICER SUDMAN: Yes,
12 Mr. Jawgiel, you have a standing objection to
13 the relevance of the financial information.
14 MR. JAWGIEL: And Exhibit 35 just for
15 the record.
16 HEARING OFFICER SUDMAN: Okay.
17 BY MR. COHEN:
18 Q. Mr. Frederick, I just put in front of
19 you a red-ribbed envelope, I believe, with two thick
20 binders in it. It's marked on the front
21 Complainant's Exhibit 35 and it's in two volumes, if
22 you can take a look at that --
23 A. Okay.
24 Q. I certainly don't want you to read the
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1 whole thing.
2 A. Okay.
3 Q. The copy I have is marked volume 1 of
4 2 and volume 2 of 2. Is yours as well?
5 A. Yes.
6 Q. Can you describe for the Board what
7 that is?
8 MR. JAWGIEL: Your Honor, I'm going to
9 object. Unless he views each and every
10 document in this exhibit, how is he going to
11 say what it is? I mean, it's absurd to hand
12 him what appears to be about five inches
13 thick of a document and say, well, what is
14 it.
15 HEARING OFFICER SUDMAN: I agree. I
16 mean, has he seen this before?
17 MR. COHEN: His signature is on it, so
18 I'm assuming.
19 HEARING OFFICER SUDMAN: I haven't
20 seen this before. I guess I'm not entirely
21 sure -- is this --
22 MR. JAWGIEL: If you don't know if his
23 signature is on every --
24 HEARING OFFICER SUDMAN: Which
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1 document are you looking at?
2 MR. JAWGIEL: In Exhibit 35, he's
3 trying to have him identify it in mass. If
4 he has specific documents he wants to refer
5 him to, so be it, but to hand him five inches
6 of documents and say, well, what is it, I
7 mean, I think is a bit absurd.
8 HEARING OFFICER SUDMAN: I mean, if
9 you would like, I can have him look at the
10 table of contents for each volume and give
11 his opinion on what it appears to be.
12 MR. COHEN: Your Honor, I don't think
13 it's necessary; it is one document. It's a
14 document he's familiar with his signature.
15 If you just give me a minute, I'll be able to
16 establish that.
17 HEARING OFFICER SUDMAN: Okay.
18 BY MR. COHEN:
19 Q. Mr. Frederick, have you seen this
20 document before?
21 A. Yeah.
22 Q. Volume 1 of 2, on page 30 of that
23 document is a signature page?
24 A. Right.
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1 Q. Does your signature appear on this
2 document?
3 A. Yes.
4 Q. Does this document, the asset purchase
5 agreement between your company, the shareholders,
6 and Curran Contracting for the sale --
7 A. I'm sure that it all is.
8 Q. Is the rest of the material in this
9 volume and the second volume attachments to this
10 document?
11 A. That's right.
12 Q. Directing your attention to page 4 in
13 that same volume --
14 A. It's not numbered but is that the
15 asset purchase agreement?
16 Q. You don't have all the page numbers on
17 the bottom there?
18 MR. JAWGIEL: Neither do we.
19 THE WITNESS: I've got 3 and then it
20 goes to asset purchase agreement.
21 MR. JAWGIEL: We have -- it looks like
22 a document is numbered but there's no
23 differentiation.
24 THE WITNESS: Here's a 4, purchase
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1 price and payment.
2 MR. JAWGIEL: Right. Purchase price,
3 4, is numbered. Is that the one you're
4 referring to?
5 MR. COHEN: Yes.
6 BY MR. COHEN:
7 Q. And what was the initial purchase
8 price for Skokie Valley Asphalt?
9 A. $8,229,000.
10 Q. As best you can tell in flipping
11 through this document, does this appear to be a true
12 and accurate representation of the agreement between
13 Skokie Valley Asphalt and Curran Contractors?
14 A. That's right.
15 It doesn't have the page that
16 shows where we paid --
17 Q. Excuse me. There's no question
18 pending.
19 A. Strike that part.
20 HEARING OFFICER SUDMAN: Sustained.
21 MR. COHEN: Madam Hearing Officer, may
22 I have a moment?
23 HEARING OFFICER SUDMAN: Yes.
24 BY MR. COHEN:
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1 Q. Do you recall ever receiving dust
2 complaints from the Skokie Valley Asphalt?
3 MR. JAWGIEL: Your Honor, objection to
4 relevance. It has nothing to do with this
5 complaint that's before us here and there
6 hasn't even been a foundation laid.
7 HEARING OFFICER SUDMAN: What kind of
8 complaints?
9 MR. COHEN: Dust.
10 HEARING OFFICER SUDMAN: Dust
11 complaints?
12 MR. JAWGIEL: Same objection, your
13 Honor. Dust complaints -- I don't know what
14 relevance dust complaints have with respect
15 to the cause of action. There's nothing in
16 the complaint alleging any allegations of
17 dust complaints.
18 HEARING OFFICER SUDMAN: What is this
19 going towards?
20 MR. COHEN: Well, the next question
21 will be what did you do.
22 HEARING OFFICER SUDMAN: Okay. I'll
23 give you some leeway to see where this is
24 going.
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1 BY MR. COHEN:
2 Q. Did you ever receive dust complaints
3 from the trucks going to the site?
4 A. There could have been some.
5 Q. And what did Skokie Valley Asphalt do
6 at times to try and control the dust?
7 A. Pave the yard.
8 Q. Before you paved the yard, did you
9 ever spray any materials on the site?
10 A. Oh, yes.
11 Q. What did you use to spay on the site?
12 A. MC-30 prime dust control asphalt. We
13 sold billions of gallons of it.
14 Q. And what was that called?
15 A. MC-30 prime asphalt, liquid asphalt,
16 not drain oil. It was a dust control oil that was
17 used all over the State of Illinois.
18 Q. Do you recall how long the time period
19 you used that to spray your lot before you paved it?
20 A. Well, parts of it you would spray it
21 and it would turn into paving eventually.
22 Q. Do you recall how long a time period
23 that was for?
24 A. Maybe about three or four years.
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1 MR. COHEN: I have nothing further at
2 this time.
3 HEARING OFFICER SUDMAN: Thank you.
4 THE WITNESS: You know, aren't you
5 going to talk about the DMRs anymore?
6 HEARING OFFICER SUDMAN: Sir, your
7 attorney will represent you. He'll ask you
8 all the questions you need.
9 MR. JAWGIEL: I'll ask him some
10 questions, but we are reserving our right to
11 call him back in our chief in case as.
12 HEARING OFFICER SUDMAN: Yes.
13 MR. JAWGIEL: And I assume he would be
14 called as an adverse witness given the nature
15 of the questions?
16 HEARING OFFICER SUDMAN: Yes.
17 C R O S S - E X A M I N A T I O N
18 BY MR. JAWGIEL:
19 Q. Mr. Frederick, we had talked a little
20 bit about how much money gross the sale was of this
21 facility, Skokie Valley Asphalt. What was the net?
22 A. You know, I can't answer that. I
23 really -- I don't know. I know that we had
24 agreements with Faulken Materials, Meyer Materials,
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1 Seneca Petroleum, and the Bank of Waukegan that they
2 wrote checks out at the closing to those creditors
3 and I don't remember exactly what the net was.
4 Q. And with respect to any economic value
5 or benefit that Skokie Valley may have received from
6 the contamination of the Avon drainage ditch, was
7 there any benefit to Skokie Valley in your opinion?
8 A. No.
9 Q. How much money did Skokie Valley spend
10 in efforts to directly absorb oil off the drainage
11 ditch?
12 MR. COHEN: Your Honor, based on the
13 fact that counselor has reserved the right to
14 call him as a witness in his case in chief, I
15 didn't ask any questions on this topic.
16 HEARING OFFICER SUDMAN: What does
17 this relate to?
18 MR. JAWGIEL: Well, they're talking
19 about economic benefit and I think that's the
20 whole purpose of bringing out how much they
21 sold this business to --
22 HEARING OFFICER SUDMAN: All right.
23 Well, you opened the door.
24 MR. JAWGIEL: The door is wide open at
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1 this point.
2 HEARING OFFICER SUDMAN: Go ahead.
3 BY MR. JAWGIEL:
4 Q. How much money did Skokie Valley spend
5 in directly attempting to absorb the oily sheen that
6 was on the Avon drainage ditch?
7 A. I would suspect that in labor and
8 probably some materials that it probably cost
9 us -- maybe with our labor, probably anywhere from
10 10 to $15,000.
11 Q. Did Skokie Valley also undertake the
12 removal of some underground storage tanks from this
13 facility?
14 A. Yes.
15 Q. And how much would you estimate the
16 cost was to Skokie Valley of removing the tanks from
17 the site?
18 A. Probably 5 to $7500 -- 5,000 to 7,500.
19 Q. Per tank?
20 A. Well, the whole thing I would think
21 without the cost that we had for Jim Huff, maybe as
22 much as $10,000. I don't think we ever had that
23 sophisticated of an accounting system.
24 Q. Now, did you get involved in laying
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1 the asphalt for Skokie Valley?
2 A. Well, I directed people to do it. I
3 mean, I didn't --
4 Q. Did you actually go out there and lay
5 the asphalt back in 1995?
6 A. No.
7 Q. Did you actually go out there and lay
8 gravel in 1995?
9 A. No.
10 Q. Did you actually go out there and load
11 trucks?
12 A. No.
13 Q. Did you actually go out there and take
14 samples for the discharge for the DMR?
15 A. No, I did not.
16 Q. Did you actually go out there and test
17 the samples that were taken for the DMRs?
18 A. No, I did not.
19 Q. Did you actually fill in the DMR
20 reports?
21 A. No.
22 Q. Did you mail the DMRs?
23 A. No.
24 Q. Did you manage the underground storage
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1 tanks that were on the facility?
2 A. Well, I mean, I didn't have anything
3 to do with getting them filled or emptied or
4 whatever, but I told people that, you know, what we
5 needed to do.
6 Q. Okay. I think you already testified
7 that there was an individual from Skokie Valley
8 whose job it was to collect the samples for the
9 DMRs; is that correct?
10 A. Right.
11 Q. And what was the name of that
12 individual?
13 A. Robert Christiansen.
14 Q. Okay. And when you signed the DMRs,
15 which are Exhibits 11 through 18, did you sign those
16 DMRs based on the best knowledge you had regarding
17 the accuracy of the data contained?
18 A. Yes.
19 Q. And was it your understanding, sir,
20 that certification just asked you for your knowledge
21 to certify when you signed that document?
22 A. Right. I mean, I assumed that
23 everything -- that the sample that was taken was
24 taken to Northshore Sanitary District. Bob filled
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1 out the report that we got back from them and I
2 signed it.
3 Q. Okay. So just so it's clear, you
4 didn't actually take the samples or fill out the
5 form or mail the forms to the IEPA regarding the
6 DMRs?
7 A. No, I did not.
8 Q. Why did you sign the reports, the DMR
9 reports?
10 A. I don't know. It was just always that
11 I signed them. I guess we signed -- or I signed a
12 check or signed whatever. We never had anybody
13 sign, you know, a lot of things in the company. I
14 guess it was just -- I don't know. I just always
15 signed them.
16 Q. Now, at some point in time, did you
17 become aware that there was an allegation that
18 duplicative reports had been filed by Skokie Valley?
19 A. Absolutely.
20 Q. And what, if anything, did Skokie
21 Valley do to rectify the situation?
22 A. Okay. First of all, we had hearings
23 with probably three or four different people that
24 worked for the -- your job is at the AG's office; is
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1 that right? -- the attorneys with the AG's office
2 because they sent us things and they said you filed
3 duplicate forms and you filed -- you know, whatever
4 they were, they were wrong or whatever and we went
5 through about three or four different -- because
6 they would get a job there in the boom times of the
7 '90s and then all of a sudden they were gone to a
8 law firm. And we finely hired --
9 MR. COHEN: Your Honor, I'm going to
10 object to the narrative.
11 THE WITNESS: Well, that's what they
12 did; it's the truth. You can strike that if
13 you want to.
14 HEARING OFFICER SUDMAN: Just answer
15 the question, please.
16 THE WITNESS: Yes, ma'am.
17 And we hired an attorney. We
18 hired --
19 MR. COHEN: Objection, no question is
20 pending.
21 HEARING OFFICER SUDMAN: Is there a
22 question pending?
23 MR. JAWGIEL: I asked him what did
24 they do when they became aware of duplicative
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1 DMRs being filed?
2 THE WITNESS: Because we had -- didn't
3 the AG's office -- if I remember right, we
4 went down to the Attorney General's Office
5 like five or six times in the big orange
6 building in Chicago, so there must have been
7 some correspondence stating that we did
8 something wrong; this was in the '90s.
9 HEARING OFFICER SUDMAN: And I believe
10 his question is what did you then do?
11 THE WITNESS: What did we do? We
12 hired -- we went down and we saw these people
13 and we hired an attorney to come with us,
14 Murray Townselman, an attorney in Chicago.
15 And we had like five or six meetings with an
16 attorney by the name of Beth Williams, I
17 believe -- they can go back and find out --
18 and a gentleman from Springfield; he used to
19 come up on the train.
20 We went through all of this and we
21 found out that when Bob had his heart attack,
22 they sent two -- and we had an agreement with
23 these people and I'm telling the truth -- the
24 duplicate copies that were void sent in for
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1 one month and we also -- the ones that
2 weren't turned in, we had copies of those
3 that were -- because we had the reports from
4 the Northshore Sanitary District that were
5 mailed.
6 You know, we had in our files that
7 were lost -- we say that they were lost down
8 at the EPA -- we never sent them, you know,
9 the mail through the mail. We thought we had
10 hammered out an agreement on this portion of
11 the DMRs with the USEPA. The attorney
12 left -- Beth Williams left.
13 Our attorney, Murray Townselman,
14 had a heart attack and he sent us a thing
15 that he was out of business and we left it
16 lie up until now, up until we've had maybe a
17 couple other attorneys going through this
18 thing again. And these gentlemen right here
19 are the ones who have stayed with it and here
20 we are today. So I mean, it's been going on
21 since the early '90s.
22 HEARING OFFICER SUDMAN: Thank you.
23 THE WITNESS: That's what we did
24 and --
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1 BY MR. JAWGIEL:
2 Q. Hold on now.
3 A. I'm sorry.
4 Q. Now, with respect to the DMRs that
5 were allegedly duplicative, did you actually have
6 the testing done during those periods of time and
7 they just didn't make it to the report?
8 A. That's what we felt and that's -- we
9 had some -- I mean, we had a whole file. I worked
10 on this and I don't even know what happened to it
11 because it was so long ago, but we had reports
12 from -- we went back to the Northshore Sanitary
13 District, got the reports and -- because we had our
14 copies of them and showed them to the AG's office.
15 And there were some -- there were
16 a couple of duplicates where at the end of the month
17 Bob might have sent it out. And he was gone with
18 a -- he had some problems and I don't want to go
19 into those -- and Lloyd, his assistant, might have
20 sent two copies.
21 I mean, we had an agreement there
22 was clerical errors always and never any -- I mean,
23 how could we gain from trying to do this because our
24 reports never were out of kilter?
L.A. REPORTING (312) 419-9292
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1 Q. Okay. Now, with respect to the file
2 that you had maintained and got the reports from the
3 testing facility, those documents were destroyed
4 when you sold?
5 A. You know, when we sold we had so
6 many -- there was an office and it was not the best
7 relationship with these people. They came in and
8 cleaned out our offices.
9 I mean, I had to take -- I was
10 hired to kind of run this thing and what happened to
11 those -- I can look. I mean, I don't know if we
12 have them anymore or not because I thought at one
13 point that was all pretty much taken care of.
14 Q. Let me show you what we'll mark as
15 Respondent's Exhibit No. 1 for identification. Take
16 a look at that document.
17 (Witness perusing
18 the document.)
19 A. Okay. This is some of the stuff that
20 we worked out, yes, with Mr. Townselman and that we
21 submitted to the Attorney General's Office back in
22 the mid '90s.
23 Q. Okay. And was this document the type
24 of document that Skokie Valley would keep in the
L.A. REPORTING (312) 419-9292
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1 ordinary course of business?
2 A. Yes.
3 Q. And was this document particularly a
4 document that Skokie Valley kept in its ordinary
5 course of business?
6 A. It must have been, yes.
7 Q. And is this a true and accurate copy
8 of the document it reflects to be?
9 A. Yes.
10 MR. COHEN: Judge, I'm going to object
11 for a couple of reasons: First, I'd like it
12 described a little better for the record;
13 second, the witness has already testified
14 that all the records have been destroyed.
15 I would assume this is a copy from
16 our records. As long as that's clear on the
17 record how they got this, I have no objection
18 to him using it. But I don't think it's fair
19 to say that, yes, this is a record we keep in
20 the ordinary course of business when they
21 don't have any records.
22 MR. JAWGIEL: Well, your Honor, that
23 objection is baseless. It's not whether or
24 not you could keep it in your records
L.A. REPORTING (312) 419-9292
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1 contemporaneous to this hearing. It's
2 whether this would have been a document you
3 kept in the ordinary course of business or
4 whether this was a document that was kept in
5 your ordinary course of business and whether
6 this is a true and accurate copy.
7 The source itself has no relevance
8 whatsoever to laying that foundation and it
9 goes to our whole defensive latches. How are
10 we supposed to defend ourselves unless we can
11 find documents we did have in our business
12 records and file alternative sources for it?
13 HEARING OFFICER SUDMAN: I'm not
14 saying it's not admitted, but I think it's
15 worth clarifying for the record what the
16 source was.
17 MR. JAWGIEL: Well, I don't know if
18 he's going to know what the source was.
19 HEARING OFFICER SUDMAN: Well, then
20 he'll say he doesn't know.
21 MR. JAWGIEL: And I don't understand
22 the purpose of clarifying the source. I
23 truly don't. I don't understand. Whether we
24 get it from the AG's office or whether we get
L.A. REPORTING (312) 419-9292
321
1 it from a different source whatsoever has no
2 relevance.
3 This is something they would have
4 kept in their ordinary course of business --
5 did keep in the ordinary course of business
6 and it's a true and accurate copy of that
7 document.
8 HEARING OFFICER SUDMAN: I think it's
9 relevant because there's been some testimony
10 about not having certain records. I just
11 think it's relevant what the source was. I'm
12 not saying that the document is not going to
13 be admissible.
14 BY MR. JAWGIEL:
15 Q. Do you actually know where a copy of
16 the document came from?
17 A. No, I don't recall where it came from
18 actually.
19 HEARING OFFICER SUDMAN: Thank you.
20 BY MR. JAWGIEL:
21 Q. What was your understanding of the
22 purpose of Exhibit No. 1?
23 A. Well, I think this was an explanation
24 from Murray to the Attorney General about some of
L.A. REPORTING (312) 419-9292
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1 the discrepancies in the monitoring reports, an
2 explanation of them.
3 Q. Did Skokie Valley at some point in
4 time file -- strike that.
5 Did Skokie Valley at some point in
6 time mail to the Illinois EPA amended reports with
7 the corrected information from the testing facility?
8 A. I'm not sure of that. I don't know;
9 we could have.
10 Q. You had mentioned in your examination
11 by Mr. Cohen that you thought that Skokie Valley was
12 going to be covered under a blanket permit and
13 that's one of the reasons why an NPDES permit wasn't
14 renewed?
15 A. That's right.
16 Q. What was your understanding regarding
17 this blanket permit?
18 A. Well, I mean --
19 MR. COHEN: Your Honor, I'm going to
20 object because it's really irrelevant in
21 terms of this case. The violations the
22 plaintiff is facing in terms of the law and
23 the permittee's understanding really has no
24 relevance.
L.A. REPORTING (312) 419-9292
323
1 HEARING OFFICER SUDMAN: Well, I think
2 it goes to his affirmative defense that the
3 Board said they were allowed the raise.
4 I'll let you go ahead.
5 MR. JAWGIEL: I think it goes directly
6 to it actually.
7 HEARING OFFICER SUDMAN: Yes.
8 THE WITNESS: When we had to renew the
9 permit, when it came up, we had -- there was
10 all this talk of the different associations,
11 the Illinois Asphalt Paving Association and
12 the Illinois Truckers' Association, going
13 together and getting blanket permits for
14 different operations, ours being mainly a
15 trucking and equipment storage yard.
16 That's what we were going to go
17 with, this trucking thing, and my brother
18 talked to somebody in the Illinois EPA's
19 office and said, well, yeah, that people are
20 going to get all of these blanket permits, so
21 at that particular time we didn't apply for
22 one. We thought that we could get a blanket
23 permit.
24 BY MR. JAWGIEL:
L.A. REPORTING (312) 419-9292
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1 Q. Was it your understanding that Skokie
2 Valley at that point in time was not required to
3 renew its NPDES permit because it was going to fall
4 under this blanket permit based on what was said by
5 the Illinois EPA?
6 MR. COHEN: Objection, leading.
7 MR. JAWGIEL: I'm asking whether or
8 not it was his understanding or not.
9 MR. COHEN: Through the whole thing
10 this has now been one topic covered on direct
11 examination.
12 MR. JAWGIEL: They talked about the
13 NPDES permit. It clearly -- and the
14 parameters, not renewing it and things of
15 that nature and I'm trying to establish our
16 affirmative defense.
17 MR. COHEN: And you're leading him
18 through a blanket permit topic that was not
19 covered on direct.
20 HEARING OFFICER SUDMAN: Can you
21 rephrase the question?
22 MR. JAWGIEL: Your Honor, can you
23 please admonish the State that they're not to
24 direct their comments to me; they're to
L.A. REPORTING (312) 419-9292
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1 direct the comments to the Court.
2 HEARING OFFICER SUDMAN: I will remind
3 all counsel to please direct your comments to
4 me.
5 Could you remind me of what the
6 question was, please?
7 MR. JAWGIEL: Sure.
8 BY MR. JAWGIEL:
9 Q. Sir, what was your understanding of
10 why Skokie Valley did not renew its permit at the
11 time that it was required to be?
12 A. We were under the understanding that
13 we could go in under a blanket permit under one of
14 the associations that we belonged to.
15 Q. And what was your understanding of who
16 lead you to believe that?
17 A. Well, I mean, my brother did talk to
18 somebody down at the EPA's office. Now whether or
19 not -- that's a million years ago whether or not we
20 can come up with the name of that person. And
21 everybody -- all of our competitors and people that
22 we dealt with were going to get a permit under this
23 blanket permit.
24 MR. COHEN: Objection, your Honor,
L.A. REPORTING (312) 419-9292
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1 move to strike. Both answers are based on
2 hearsay.
3 HEARING OFFICER SUDMAN: Well, I think
4 it goes to -- it just goes to his
5 understanding. I don't think he's -- I'll
6 allow it.
7 BY MR. JAWGIEL:
8 Q. There was some talk about a particular
9 area surrounding the Skokie Valley site. What type
10 of properties or facilities, if you will, existed
11 around the Skokie Valley site back in May of 1995?
12 A. Well, I mean, to the west of us, we
13 had a farm and landscapers. To the south we had
14 more farms. To the east there was a landfill, a
15 railroad to the south and a car dealership to the --
16 or I mean, to the north the railroad tracks and the
17 car dealerships and houses.
18 Q. And was there a subdivision of houses
19 that was in that area?
20 A. Yes.
21 MR. JAWGIEL: At this point in time,
22 your Honor, I'm going to stop my examination
23 of Mr. Frederick. We do reserve the right to
24 recall him in our case in chief.
L.A. REPORTING (312) 419-9292
327
1 HEARING OFFICER SUDMAN: Okay.
2 Mr. Cohen, do you have anymore
3 questions?
4 MR. COHEN: I have nothing further.
5 HEARING OFFICER SUDMAN: Okay. Thank
6 you very much, Mr. Frederick. You are
7 finished for today but you may be needed
8 tomorrow.
9 THE WITNESS: Okay.
10 HEARING OFFICER SUDMAN: Anything
11 anyone wants to say while we're still on the
12 record?
13 MR. JAWGIEL: No.
14 HEARING OFFICER SUDMAN: Shall we go
15 off the record for a moment?
16 MR. JAWGIEL: Yes, please.
17 HEARING OFFICER SUDMAN: Okay. We'll
18 go off the record.
19 THE REPORTER: Okay.
20 HEARING OFFICER SUDMAN: We are back
21 on the record. It is 4:40. We've decided to
22 conclude for today. We will recess and we
23 will reconvene tomorrow at 9:00 a.m.
24
L.A. REPORTING (312) 419-9292
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1 (Whereupon, at 4:40 p.m., an
2 adjournment was taken to
3 9:00 a.m., on Friday,
4 October 31, 2003.)
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1 STATE OF ILLINOIS )
2 ) SS.
3 COUNTY OF DUPAGE )
4
5
6 I, MARIA E. SHOCKEY, CSR, do
7 hereby state that I am a court reporter doing
8 business in the City of Chicago, County of DuPage,
9 and State of Illinois; that I reported by means of
10 machine shorthand the proceedings held in the
11 foregoing cause, and that the foregoing is a true
12 and correct transcript of my shorthand notes so
13 taken as aforesaid.
14
15
16 _____________________
Maria E. Shockey, CSR
17 Notary Public,
DuPage County, Illinois
18
19 SUBSCRIBED AND SWORN TO
before me this ___ day
20 of ________, A.D., 2003.
21
_________________________
22 Notary Public
23
24
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