ORIGINAL

ORIGINAL

1

ILLINOIS POLLUTION CONTROL BOARD    

Page I

2   ROCHELLE WASTE DISPOSAL, L.L.C.,

3

Petitioner,

4

vs.

)

PCB 03-218

(Pollution Control

5   CITY COUNCIL OF THE CITY OF    

)

Facility Siting

ROCHELLE, ILLINOIS,

)

Appeal)

Respondent.

8

REPORT OP PROCEEDINGS

9  had at the hearing of the above-entitled cause before

10 HEARING OFFICER BRADLEY P. HALLORAN, one of the Hearing

11  Officers of said court, at Rochelle City Hall Council

12  Chambers, 420 North Sixth Street, Rochelle, Illinois, on

13 Wednesday, December 10, 2003, at the hour of 9:00

14  o’clock a.m.

APPEARANCES:

McGREEVY, JOHNSON & WILLIAMS, P.C.

BY:

MR. MICHAEL F. O’BRIEN

18

Appearing for Petitioner;

19

HINSHAW & CULBERTSON

BY: MR. RICHRAD S. PORTER and

20

MR. CHARLES F. HELSTEN

Appearing for Respondent.

2.

22 REPORTED BY: TRACY L. ABBOTT, CSR

23  LICENSE NO. 084-003182

24

Page 2

1

INDEX

WITNESSES

For Petitioner:

PAGE

DONALD K. BUBIK

Direct Examination

by Mr. O’Brien

Cross-Examination

by Mr. Porter

Redirect

Examination

by Mr. O’Brien

KENNETH C. ROEGLIN

Direct

Examination

by Mr. O’Brien

Cross-Examination

by Mr. Porter

104

EDWIN D. KISSICK

Direct

Examination

by Mr. O’Brien

107

Cross-Examination

by Mr. Porter

119

WENDELL COLWILL

Direct Examination

by Mr. O’Brien

126

Cross-Examination

by Mr. Porter

131

ALAN HANN

Direct

Examination

by Mr. O’Brien

137

Cross-Examination

by Mr. Porter

142

JOHN O’BRIEN

Direct

Examination

by Mr. O’Brien

145

Cross-Examination

by Mr. Porter

152

JOHN HOLMTROM

Direct Examination

by Mr. O’Brien

158

Cross-Examination

by Mr. Porter

160

Redirect

Examination by Mr. O’Brien

168

FRANK BEARDIN

Direct Examination

by Mr. O’Brien

171

Cross-Examination

by Mr. Porter

200

For Respondent:

PAGE

CHARLES HELSTEN

Direct Examination

by Mr. Porter

231

Cross-Examination

by Mr. O’Brien

236

THOMAS HILBERT

24  Direct Examination by Mr. Porter        

244

Page 3

1

EXHIBITS

2  HEARING OFFICER EXHIBITS      

ID

EVIDENCE

3  No. 1                       

80

No. 2                       

80

4  No. 3                      

126

No. 4                      

292

5

6  PETITIONER’S EXHIBITS       

ID

EVIDENCE

7  No. 1                    

114

207

No.2                 

62

94

8  No. 4                    

101

143

No. 5                    

108

9  No. 6                    

109

206

No.8                 

72

94

10  No. 9                    

176

207

No. 10                  

179

207

11  No. 11                  

180

207

No. 12                  

181

207

12  No. 14                  

64

94

No. 15                

Stipulated   

240

13  Nos. 16 through 20        

Stipulated    

32

No. 22                  

168

170

14  No. 23                  

236

241

15

16  RESPONDENT’S EXHIBITS       

ID

EVIDENCE

17 No. 1                     

88

89

No. 2                    

105

106

18  Nos. 3 through 6             

Stipulated   

242

19

20

21

22

23

24

Page 4

1

HEARING OFFICER HALLORAN: We are on the

2  record. Good morning. My name is Bradley Halloran. I

3  am with the Illinois Pollution Control Board, and I am

4  also a hearing officer assigned to this matter being

5  Rochelle Waste Disposal, LLC, Petitioner, versus the

6  City Council of the City of Rochelle, Illinois,

7  Respondent, PCB3-2.8.  This is a pollution control

8  facility siting appeal.

9

Today is December 10th at 9:00 

a.m. 

We do

10 have members of the public present. I will address that

11  in short order. We also have a staff attorney from

12 Pollution Control Board, Mr. John Knittle. This hearing

13  has been scheduled in accordance with the Illinois

14  Pollution Protection Act and the Pollution Control Board

15  Rules and Procedures. It will be conducted according to

16 the procedural rules found at Section 107.400 and 101

17 Subpart F.

18

Addressing the members of the public, I will

19 allow the public to make comments or statements. And we

20 can do so 

if you have to leave, we can do so right

2.   after opening statements or just let me know at the

22 various breaks we’ll have during the hearing; and you

23  can step up here.

24

If you come up and give public comment and

Page 5

1  just say your peace and step down as opposed to a public

2  statement where you’re sworn in, those two will be

3  weighed accordingly. In other words, if you’re sworn

4  in, the Board will consider it and give it more weight.

5

And before I continue, I would like to just

6  talk a moment about the Board’s hearing process. First

7  I think many of you know and are already familiar with

8  the process, and that is I will not be making the

9  ultimate decision in this matter, rather it’s the

10  Pollution Control Board who will.

11

They will review the transcript of these

12 proceedings and the record below and also review the

13 post-hearing briefs from this hearing. My job is to

14 ensure that an orderly hearing and a clear record is

15 developed so that the Board can have all the proper and

16 relevant information before it when deciding the case.

17

Again after the hearing, the parties will

18 have an opportunity to submit post-hearing briefs.

19 These, too, will be considered by the Board, and also I

20 will set a public comment period, as well. And finally

21  I don’t think I have to, but I do want to caution

22 everyone in that this hearing is much like a trial in

23 Circuit Court; and I expect everyone to act

24 appropriately and with proper decorum.

Page 6

1

That’s pretty much all I have, but I do want

2  to note and I want to read from the June 5th, 2003,

3  Board order, “The petitioner appeals on the grounds that

4  the procedures used by the City of Rochelle to reach its

5  siting decision were not fundamentally fair; and, 2, the

6  City of Rochelle’s decision was against the manifest

7  weight of the evidence as to Criteria 1, 2, 3, 6 and 9.

8  As to the remaining criteria, Rochelle Waste Disposal

9  also seeks to challenge special conditions that the City

10 of Rochelle included as part of its finding of

11  compliance in these remaining criteria.”

12

With that said, I think we will let the

13 parties introduce themselves. Mr. O’Brien?

14

MR. O’BRIEN: I’m Mike O’Brien, and I

15 represent Rochelle Waste Disposal. With me at counsel

16  table is Thomas Hilbert.

17

HEARING OFFICER HALLORAN: Thank you,

18 Mr. O’Brien. Mr. Porter?

19

MR. PORTER: Good morning. Rick Porter on

20 behalf of the City of Rochelle, and I am here with my

21 partner and boss, Chuck Helsten.

22

HEARING OFFICER HALLORAN: With that said, I

23  think my plan is to allow the parties to give opening

24  statements, and then I will ask any members of the

Page 7

1  public if they would like to make comment or statement;

2  and they can step in and step up if they so choose.

3

Mr. O’Brien? You can remain seated if you’d

4  like.

5

MR. O’BRIEN: That would be fine.

6  Mr. Halloran, the Petitioner intends to address two

7  issues in the siting review hearing. One of issues is

8  our belief that the Rochelle City Council’s findings

9  that we did not establish Criteria 1, need; 2, design

10  location and operation; 3, incompatibility and effect on

11 value; 6, traffic; and 9, regulated recharge zone, are

12  against the manifest weight of the evidence and that the

13  decisions were based on political considerations, not on

14 the record of the hearing.

15

Secondly, we believe that the siting process

16 and procedures are fundamentally unfair and that the

17 Council’s decision was tainted by extensive,

18  inappropriate, prejudicial and undisclosed ex parte

19 communications resulting in a decision that was based on

20 the political influence of the CCOC, the so-called

21 Concerned Citizens of Ogle County, which was a party to

22 the proceedings significantly, which knew that the

23  rules prohibited the ex parte communications and,

24  nevertheless, engaged in extensive such communications

Page 8

1  before, even during and after the hearing and before the

2  decision was rendered.

3

Those inappropriate contacts were made

4  essentially to persuade the Council of the CCOC’s

5  political power, and that the decision should be based

6  not on the evidence in the hearing but on the basis of

7  political influence even if this aggregate theory were

B  met.

9

As far as the manifest weight of the evidence

10 is concerned, Mr. Halloran, you indicated that the

11  parties will have an opportunity to submit post-hearing

12  briefs. My understanding is that our brief will be due

13  in about mid January. Because of the manifest weight of

14  the evidence issue is based entirely on the record

15  developed in the hearing below and that no new evidence

16  could be introduced in this hearing on those issues, we

17  intend to concentrate today primarily in this hearing on

18  the fundamental fairness issues that necessitate

19 consideration of new evidence during this hearing.

20

Thus, although I will submit a preliminary

21 brief to you on the manifest weight of the evidence

22  issues as to why we feel the City Council’s decision was

23  against the manifest weight of the evidence on the

24 various criterion, our primary purpose today will be in

Page 9

1  establishing the fundamental unfairness of the hearing

2  based on those ex parte communications, as well as the

3  City Council’s effort to change the decision once it had

4  been made by reconsidering supposedly it’s final

5  decision of April 24th at a meeting four days later as

6  to which we have been told by the city’s attorney, Mr.

7  Felsten, that no action would be taken.

8

Therefore, let me address primarily in my

9  opening statement the primary issue we are to take

10 evidence on today, the fundamental fairness. We think

11  there are two major reasons that the siting procedures

12  below violated fundamental fairness.

13

First, the CCOC, which was a party to the

14  proceedings 

and we think that’s significant in terms

15  of the gravity element of the contacts 

knew full well

16 that the rules prohibited post-filing ex parte

17 communications and nevertheless engaged in extensive

18  such communications both through a letter writing

19 campaign and through personal contacts that occurred

20 before, even during and after the hearing and before a

21 decision was reached.

22

Secondly, the decision that was rendered on

23  April 24th was so blatantly and obviously wrong, for

24  example, finding that the property was in a regulated

Page ~0

1  recharge zone which was directly contrary to all of the

2  evidence, directly contrary to the City Staff’s report

3  and Mr. Helsten’s report, and directly contrary to the

4  hearing officer’s report, that the City purported to

S  reconsider that decision four days later, to reverse

6  that finding and to impose new conditions in the event

7  of a PCB reversal, The City Staff having expressed the

8  view that the Criterion 9 filing was so obviously not

9  based on the record that the PCB might well reverse the

10 whole case.

11

Now, that reconsideration took place on

12 April 28th even though the City Staff attorney had

13 informed us that no action could be taken at that

14 meeting, thus effectively the City Council held an ex

15 parte hearing without notice or actually I should say it

16 was held with notice, notice that no action would be

17 taken at the meeting, to reconsider their vote and to

18 eliminate an obvious basis for reversal and effectively

19 to conceal from the PCB an important basis for precisely

20 such a reversal, that is, the decision had been based

21 not on the record at all but on the political influence

22 and arm twisting of the CCOC through those inappropriate

23 ex parte communications.

24

Now, as the hearing office undoubtedly knows,

Page 11

1  it is not enough to show merely that such ex parte

2  communications took place. There must also be a showing

3  of prejudice resulting from those communications; and

4  obviously, Mr. Ialloran, you’re familiar with E&E

5  Hauling and Land-O-Lakes Company and other cases that

6  have dealt with ex parte communications.

7

And you’re undoubtedly aware of the five-part

8  test that’s repeatedly employed to measure prejudice

9  resulting from such ex parte communications, including

10  the factors of the gravity of the communication, whether

11 the contacts “may” have influenced the decision, whether

12  the party making the contacts benefited, whether the

13  contents of the communication were not disclosed and

14  unknown to the party victimized by the contact, and

15  whether vacating the decision would serve a useful

16  purpose. Now, all of that is I’m sure probably very

17  familiar territory to you 

18

HEARING OFFICER HALLORAN: Mr. O’Brien, can

19 you slow down just tad, please?

20

MR. O’BRIEN: Sure. I will.

21

HEARING OFFICER HALLORAN: Thank you.

22

MR. O’BRIEN: All that is probably well known

23 and familiar territory to you, Mr. Halloran, and to my

24 opposing counsel.

Page 12

1

What is new, however, and what we will be

2  suggesting in the course of this hearing is that that

3  five-part test has really not been appropriately applied

4  by the PCB or in some instances by the courts because of

5  what I could would call a catch 22, whereby the

6  applicant has to show prejudice; but the applicant is

7  prohibited from exploring the mental processes of the

8  decision-makers; but by the same token, the decision-

9  makers themselves have in several cases been permitted

10 to testify without objection that the contacts did not

11 influence them or that they relied exclusively on the

12  record.

13

And that catch 22, we believe, is

14  inappropriate; and we will be submitting a brief to you

15 and arguing to the PCB and ultimately to the appellate

16 court, if necessary, that it is entirely improper for

17  the decision-makers to be permitted to dispel any

18  suggestion of prejudice by testifying that they were not

19 influenced.

20

Rather under the body of case law that the

21  PCB has cited as a basis for not permitting invasion of

22  the decision-makers’ mental processes, it is equally

23  improper, we contend, to permit evidence of prejudice to

24  be dispelled by such self-serving testimony by the

Page 13

decision-makers themselves.

Thus, right at the outset of this hearing I

want to make clear we believe that the PCB which should

review this issue of prejudice on an entirely objective

basis, just as would be done if a judge, an

administrative decision-maker or a juror were subjected

to such improper cx parte communications. Thus, for

example if a judge were approached with an cx parte

communication, the judge would not be permitted to

testify to his own mental process or to say well 

MR. PORTER: Mr. Halloran, I am very

reluctant to ever interrupt an opening statement, but we

are obviously getting into argument regarding the nature

of ex parte law which is not what the evidence will show

in this case. So I have to object. Sorry.

HEARING OFFICER HALLORAN: Mr. O’Brien?

MR. O’BRIEN: I just want to explain to you

the way I’m putting in the evidence and the test that I

intend to suggest as a proper measure of prejudice.

HEARING OFFICER HALLORAN: I will give you a

little latitude.

22

MR. O’BRIEN: I guess what I’m attempting to

23 say is if the judge were approached, the judge would not

24 be able to testify that the approach didn’t influence

Page 14

1  him. Under Cannon 3 of the Code of Judicial Conduct

2  which is clarified in Illinois Supreme Court Rule 63 as

3  well as for Federal judges 2BVFC4SS, the issue is

4  whether because of the cx parte communication, quote,

5  “the judge’s impartiality might reasonably be

6  questioned.” The judge isn’t even permitted to testify

7  on the issue. The question is an objective one with an

8  objective observer looking at the contact believed that

9  this may have tainted the judge’s ability to be

10  impartial.

11

The same thing would be true for a juror

12 under Federal Rule of Evidence 606. The juror could

13  testify to the fact of the communication but not to,

14  quote, “the effect of anything upon that or any other

15  juror’s mind or emotions as influencing the juror.”

16

This case law also suggests, however, that

17  the post-decision comments of the decision-makers are

18  admissable as to their views of the decision; and I will

19 cite to you cases on that, also.

20

Now, what the evidence in this case will show

21  is that immediately following the decision on April

22  24th, two of the Council members walked right out of the

23 meeting and announced to the newspaper that they had

24 voted in accordance with what they believed to be

Page 15

1  popular political sentiment, that as Councilman Kissick

2  says, “My job up there is to represent the majority of

3  the public,” and as Councilman Bubik said, “I voted the

4  way the citizens of this town wanted to go.” Thus, two

5  of the councilmen members acknowledged having voted in

6  accordance with public opinion and political arm

7  twisting.

8

That is, by the way, exactly the message that

9  the CCOC had already stressed in its letter writing

10 campaign and in its ex parte communications, that the

11 Council should vote against the expansion, not on the

12  merits but because that’s what the CCOC wanted, not in

13  accordance with what the City Staff had recommended

14 because, after all, Mr. Helsten’s report had recommended

15  that the siting be approved, not in accordance with the

16 hearing officer’s report because that’s what the hearing

17 officer had recommended, but in accordance with how the

18 CCOC wanted things to go.

19

Significantly the hearing officer below made

20 a specific finding that, for example, as to the need

21 criterion, that the CCOC’s position on need was

22 essentially political and not legal. And indeed

23 Rochelle City Council on the basis of utterly no

24 evidence determined that there was no need for this

Page 16

1  facility, even though the only suggestion that had been

2  made by the CCOC in any of its cross-examination was the

3  political argument noted by the hearing officer, which

4  was contrary to law, that the need expert should have

5  considered unpermitted facilities and should have

6  considered only the needs of Ogle County as opposed to

7  the service area the applicant had designated.

8

As the hearing officer suggested in his

9  report, any finding that need had not been established

10 on the basis of those types of political considerations,

11 which was the position of the CCOC, would have been

12  subject to reversal.

13

Now, what exactly were these ex parte

14 communications by the CCOC that led to this essentially

15 political result not based on the record of the hearing?

16 We believe that the evidence will show that as Council

17 members and others have admitted during the pre-hearing

18 depositions that Mr. Frank Beardin, the CCOC’s

19 president, made repeated efforts before, during and

20  following the hearing and before the decision to contact

21 Council members and to influence their decision to vote

22  against the siting application.

23

Councilman Kissick, for example, says that

24  after the application was filed on November 22nd,

Page 17

1  Mr. Beardin contacted him on approximately six occasions

2  to the point that Mr. Kissick finally instructed his

3  secretary to not take any further calls from

4  Mr. Beardin.

5

Now, Mr. Beardin denies making calls like

6  that; and significantly he admits that he knows the

7  rules, and he knows he’s not supposed to be making these

8  ex parte communications. Nevertheless, he also

9  contacted other Council members including Council member

10 Don Bubik, Council member Colwill and Council member

11 Hann, all of whom we believe Mr. Beardin contacted while

12 the hearing was actually in progress.

13

The hearing took place, by the way, on

14  Monday, Tuesday and Wednesday, February 24th through

15 27th, 2003. There was a weekend recess. And it resumed

16 on Monday, March 3rd, and concluded on Tuesday, March

17 4th. On Monday 

excuse me; on Saturday, March 1st,

18 Mr. Beardin apparently saw a religiously oriented

19 television program, a syndicated program called Touched

20 By An Angel, the specific episode being entitled “The

21 Good Earth” that echoed many of the same themes that

22  Beardin had repeatedly hammered away at in his many

23  letters to the editor of the Rochelle newspaper, that

24  the Council should disregard the economic benefits of

Page 18

1  the expansion, that they should do their Christian duty

2  and they should be concerned about the environment and

3  the legacy left to the children and grandchildren, and

4  that there were things like turning down the expansion

5  that were a lot more important than money.

6

The program Touched By An Angel that he saw

7  on that Saturday evening basically has angels coming

8  down to Earth from heaven and participating in the lives

9  of regular human beings. That particular episode an

10  inventor played by Chester from Gun Smoke, Dennis

11 Weaver, has almost completed building a machine which is

12 going to turn water into energy so that, for example, as

13  one of the angels pointed out, with a single glass of

14  water you could power a house.

15

Chester, the inventor, I forget his name in

16  the actual show, is basically quite concerned about the

17  environment. The show was largely about the

18  environment. The show was largely about the fact that

19  there are things that are much more important than

20 money; and just like Mr. Beardin says, there are

21  concerns that you shouldn’t sell for money such as the

22  legacy of your children and grandchildren.

23

Ultimately in this show, one of the angels

24 gets herself into management of an energy company, and

Page 19

1  Chester hasn’t quite completed his invention. He’s got

2  this prototype; but throughout the program, the angel is

3  convincing both the energy company to buy his invention

4  so he can finish it because, as the angels know, Chester

5  is about to die; and he’s not going to be able to finish

6  his invention, and convincing the energy company to do

7  that.

8

So ultimately even though Chester says that

9  money isn’t everything, he agrees to sell his prototype,

10  all of his drawings and all of his notes. He’s just on

11  the verge of furnishing this machine to the energy

12  company so they can finish it; and on the way to the

13  airport, the evil energy company president says, well,

14  we’re going to make a pit stop and takes the angel into

15 what appears to be a transfer station where the evil

16 energy company executive throws the prototype and all

17 the drawings and the notes into the back of a packer

18 truck and crushes it all up.

19

The angel, of course, is horrified; and the

20 motive of the story or the basic point of the episode is

21 that he’s been cheated. And so in any event, the angels

22 make arrangements for this fellow Chester to teach a

23  small boy how to rebuild the machine.

24

All of those themes are exactly the themes

Page 20

1  that Beardin pounded away at in his many letters to the

2  editor. Having seen that show, he then make copies of

3  that tape; and he states he takes that tape to four of

4  the alderman, and he then disingenuously says that he

5  didn’t do that to influence them. He does that on the

6  Sunday during the recess in the hearing, and he gives

7  the tape to Councilman Bubik. He thinks he also gave it

S  to three of the other alderman.

9

He didn’t give it to the mayor who actually

10 voted in favor of the expansion. When asked why he

11 didn’t do that, he says, well, he knew the mayor’s

12 stance on the expansion; but he contends that he did not

13  do this in order to influence the alderman. He just

14 thought it was a good show, had nothing to do with the

15 landfill siting. These just happened to be the only

16 three people in town who took the tape.

17

Now, Mr. Halloran, Mr. Beardin was a party to

18 the proceedings. He was the president of the CCOC. He

19 sat at counsel table. He participated with counsel in

20 cross-examining witnesses and putting a witness on the

21 stand. He will testify that he knew that the rules

22 prohibited this type of ex parte communication. He

23 nevertheless engaged it, and he went to their homes

24 during the hearing itself to attempt to influence them.

Page 21

1

Significantly neither Mr. Beardin nor his

2  counsel, Mr. Mueller, nor the City Council members who

3  had been approached disclosed any appropriate ex parte

4  communication at any time prior to the decision.

5

A similar instance took place when a

6  gentleman by the name of Ken Roeglin, that’s

7  R-o-e-g-l-i-n, went to Councilman Bubik again after the

8  hearing had concluded and before the decision and gave

9  him an article from a Florida newspaper which asserted

10 as a fact something that was directly contrary to the

11 evidence in this hearing.

12

The newspaper article asserted that all

13  landfill liners leak and ultimately contaminate the

14  ground water. The record in this hearing was directly

15 contrary to that. The only evidence on landfill liners

16  leaking was that the University of Illinois Engineering

17  School had done a study in which they said there had

18  been no documented instance of any Subtitle D liner ever

19 leaking anywhere, not only in Illinois but anywhere in

20 the country.

21

When asked afterwards by Mr. Hilbert, who is

22  sitting next to me, why he had apparently changed his

23 mind because he told Hilbert before the application was

24  filed that he thought it was an acceptable application

Page 22

1  and a good application, he cited his concerns about the

2  ground water and specifically referenced this article

3  that he had gotten from Mr. Roeglin, knew he shouldn’t

4  read, but went ahead and read.

5

The evidence will also show that Mr. Bubik

6  was told that if he voted in favor of the expansion, he

7  would be sitting alone in church; and a gentleman by the

8  name of John O’Brien has admitted to John Holmstrom, who

9  I will call as a witness, one of our in-house lawyers at

10 Rochelle Waste, that after the hearing began that

11 O’Brien and others began leaning on Council members to

12 get them to vote against the expansion and that there

13 were many such ex parte communications.

14

Now, all of that ex parte communication, much

15 of which took place by a party, the CCOC, was

16  inappropriate and led to the essentially political

17 decision that the Council made. The decision should

18 have been made on the basis of the actual evidence in

19 the record, not as it was on the basis of erroneous news

20  reports and ex parte communications. For all of those

21  reasons, we believe that the Council’s decision should

22 be reversed on the basis of fundamental fairness.

23  Thanks.

24

HEARING OFFICER HALLORAN: Thank you,

Page 23

1  Mr. O’Brien. Mr. Porter?

2

MR. PORTER: Thank you. Good morning.

3  Again, my name is Rick Porter; and I and Attorney Chuck

4  Helsten represent the City of Rochelle. The evidence

5  that will be submitted today will show that the process

6  employed by the City of Rochelle was not only

7  fundamentally fair, it was exceptionally fair; and it

8  was free from the usual and inevitable communications

9  that occur by members of the public to the City Council.

10

As a matter of fact, there will only be

11  testimony that a very few of these inevitable,

12  unsolicited comments were made by members of the public;

13  and there will be evidence that these inevitable,

14  unsolicited communications in no way prejudiced the

15 decision of the City Council.

16

To the contrary, each and every City Council

17 member will testify that when someone came up to them

18 after the application was filed and attempted to discuss

19  the landfill application, they were informed that it

20 could not be discussed by the City Council members; and

21  that was the end of the communication.

22

Apparently Mr. O’Brien has reviewed some of

23  the case law on the issue, and it is 

he must now be

24 aware that the PCB has acknowledged that as public

Page 24

1  officials at a local level, these types of

2  communications are absolutely inevitable. The public

3  views these individuals as their elected officials and

4  wants an opportunity to talk to them. These particular

5  City Council members were aware that that might occur;

6  and, therefore, acted accordingly by informing the

7  public when they would do so that they could not discuss

8  the matter.

9

You will notice that Mr. O’Brien references

10  some communications of Mr. Beardin; and specifically

11 what he says is that Mr. Beardin made efforts to

12 communicate with some of the City Council members.

13  That’s exactly what may have transpired, and I think

14 that evidence will be today that the City Council

15 members aren’t even entirely clear as to the dates that

16  those communications took place or attempted

17 communications took place; but what the evidence will be

18  is that the attempts at communication were unsuccessful

19 because they refused to speak with Mr. Beardin about the

20 matter.

21

Amazingly, Mr. O’Brien talks about an episode

22  of a television series called Touched By An Angel, and

23  that was the major emphasis of his opening statement.

24  This epitomizes the lack of evidence in this case of

Page 25

1  improper ex parte communications for a variety of

2  reasons. First, the evidence will be that only Mr.

3  Bubik recalls receiving that tape from Mr. Beardin, that

4  he was 

Mr. Beardin came to his house, put the tape in

S  his hand, turned around and left. Mr. Bubik never

6  watched the tape.

7

How in the world that is ever going to be

8  relevant to an ex parte communication is beyond me. And

9  the fact that 

or the assertion that the City Council

10 would somehow base its decision on a television series

11  is offensive and downright silly. None of the City

12  Council members will testify that that television series

13 had any impact whatsoever on their decision; and to the

14  contrary, each and every City Council member will

15  testify that their decision was based only on the record

16  that existed at the time that they went to make that

17 decision and that they considered each and every

18  criteria, not anything that was said or received outside

19 of the record.

20

Surprisingly, Mr. O’Brien also brings up an

21  article that was given by Mr. Kenneth Roeglin to

22 Mr. Bubik. Again, this is not an ex parte

23  communication. First of all, that article is in the

24  record. It cannot be an ex parte communication. It’s

Page 26

1  filed in the public comment period and was received

2  before the close of the public comment period, and the

3  evidence will be clear and is already clear as the

4  records have been filed with the PCB.

S

Furthermore, the applicant mischaracterizes

6  the content of that article. It doesn’t even involve a

7  study of the propensity of a liner to leak. To the

8  contrary, what it involves is a study of whether or not

9  adding water to a landfill and recirculating water might

10  increase the 

or decrease the decay time such that you

11 may not need as many landfills. It has absolutely

12  nothing whatsoever to do with what the applicant

13  suggests, and finally it didn’t have any impact upon

14  Mr. Bubik in this case. And, regardless, all the City

15 Council members necessarily were required to consider

16  the article because it was part of the record.

17

Finally, there was some discussion about

18 Criteria No. 9, and specifically the applicant rests on

19 the fact that the City Council initially had found that

20  Criteria 9 was not met and then met again on April 28th

21 and corrected that finding. Their reliance upon the

22  fact that the City Council found in favor of them on

23  Criteria 9 belies logic. How in the world could that be

24  unfair or prejudice them when they actually were found

Page 27

1  to have met Criteria No. 9?

2

There will be evidence and there is evidence

3  in the record that there was discussion at the Section

4  39.2 hearing regarding recharge of areas underneath a

5  landfill. And undoubtedly some of the City Council

6  members confused that with a designated recharge area as

7  referenced in Criteria 9. That was brought to their

8  attention by the attorney for City Staff, my partner

9  Mr. Heisten, at the April 28th meeting; and they then

10  voted again and found in favor of Criteria 9.

11

The applicant’s assertion that somehow they

12 were informed no action would be taken will be belied by

13  the testimony of Mr. Neisten, if it’s necessary.

14  Furthermore, it’s ridiculous because the applicant was

15 present. Tom Hilbert was there in the room at the time

16 that the matter was brought forward. It was on the

17 public agenda, which will be part of the record; and it

18 was also a regularly publicized meeting that was

19 published early in the year.

20

Finally, there will be evidence that

21 Mr. Helsten telephoned counsel for the applicant; and

22 apparently he is going to come testify, Mr. Holmstrom.

23 And Mr. Holmstrom elected not to be there, though he

24 didn’t have any particular reason not to be there. So

Page 28

1  obviously this process is not only fundamentally fair,

2  it is exceptionally clean.

3

Mr. Helsten and I have been down the road on

4  these cases on numerous occasions, and it’s hard to

5  imagine one which involved less communications from the

6  public. For those reasons the PCB should deny the

7  request by the applicant to reverse or remand the

8  proceeding.

9

HEARING OFFICER HALLORAN: Thank you,

10 Mr. Porter. I think before we get on to public comment,

11  if there is any, I think counsel have some stipulations

12  they want to present.

13

MR. O’BRIEN: Yes.

14

HEARING OFFICER HALLORAN: And then we can go

15 right into public comment.

16

MR. O’BRIEN: I will just read them into the

17 record basically.

18

HEARING OFFICER HALLORAN: Okay. Thank you.

19

MR. O’BRIEN: There are essentially three of

20 them. First of all, we are going to do this in lieu of

21 live testimony; and if the witness were called, the

22 parties stipulate that this would be the thrust of their

23  testimony. If called as a witness to testify, the

24 Rochelle City Clerk, Bruce NcKinney, would testify that

Page 29

1  Petitioner’s Exhibit 16 is a tape of the Rochelle City

2  Council meeting held on April 24th, 2003, when the final

3  decision was rendered. And Petitioner’s Exhibit 18 is a

4  tape of the Rochelle City Council meeting held on

5  April 28th when the decision was reconsidered. So I

6  offer those two exhibits, Exhibit 16 and 18, based on

7  that stipulation.

8

I-TEARING OFFICER HALLORAN: Is that 16 and 18?

9

MR. O’BRIEN: Yes.

10

MR. PORTER: So stipulated, Mr. Halloran.

11

HEARING OFFICER HALLORAN: Thank you,

12 Mr. Porter.

13

MR. O’BRIEN: Secondly, if called to testify

14  my assistant, Susan McIntyre, would testify that

15 Petitioner’s Exhibit 17 is a true and correct

16  transcription of the tape of the Rochelle City Council

17 meeting on April 24th, which is Exhibit 16, and that

18  Petitioner’s Exhibit 19 is a true and correct

19 transcription of the tape of that portion of the

20 Rochelle City Council meeting on April 28th, 2003, that

21 dealt with the reconsideration of the landfill

22  conditions, and that where the tape was occasionally

23  inaudible, she has noted that; but it is otherwise a

24 true and accurate transcription of the tape.

Page 30

1

HEARING OFFICER HALLORAN: That’s 16, 17, 18

2  and 19 as exhibits?

3

MR. O’BRIEN: Yes, 16, 17, 18, 19.

4

MR. PORTER: 17 is the transcription of 4/24,

5  and 19 is the transcription of 4/28?

6

MR. O’BRIEN: Yes.

7

MR. PORTER: Would you like me to respond to

8  the stipulation now?

9

HEARING OFFICER HALLORAN: If you 

- -

10

MR. PORTER: We do stipulate that indeed that

11  is what his secretary would testify. For the record,

12  there are published minutes of those meetings which are

13  not the same documents as 16, 17, 18 and 19.

14

MR. O’BRIEN: That’s correct. We agree with

15  that.

16

HEARING OFFICER HALLORAN: Are you going to

17  offer those?

18

MR. PORTER: I may, yes.

19

HEARING OFFICER HALLORAN: Thank you.

20

MR. O’BRIEN: So we offer this in lieu of her

21 live testimony and offer these exhibits.

22

HEARING OFFICER HALLORAN: Thank you. I can

23 take them now.

24

MR. O’BRIEN: Yeah, I’ll do that. Let me

Page 3!

1  just get one other one out of the way, and then I’ll

2  hand them to you.

3

HEARING OFFICER HALLORAN: Okay. I’m sorry.

4

MR. O’BRIEN: And if called as a witness to

S  testify, that the program director of Channel 23 Tv,

6  Carol Comilla, would testify the Petitioner’s Exhibit 20

7  is an accurate description of the episode “The Good

8  Earth” of the TV program Touched By An Angel that was

9  broadcast in Rochelle on CBS on Saturday, March 1st,

10  2003, at 7:00 p.m. which was the first and only airing

11 of that show.

12

HEARING OFFICER HALLORAN: Mr. Porter?

13

MR. PORTER: Mr. Halloran, I think addressing

14  that stipulation now is improper. I think we should do

15  it when we attempt to bring in any type of evidence

16 regarding that videotape. The videotape is completely

17  irrelevant, and I would be objecting to its use or

18 admission at trial. Therefore, there’s certainly no

19  reason to even lay the foundation for when the videotape

20  first aired. Having said that, I really don’t care when

21  the videotape first aired. Therefore, I would stipulate

22  as to when it did.

23

HEARING OFFICER HALLORAN: So you’re

24  stipulating to Petitioner’s Exhibit 20 as to when it

Page 32

1  aired?

And that she would testify that

of the program.

So stipulated.

Petitioner’s Exhibit 20. So I

MR. O’BRIEN:

this is the description

MR. PORTER:

MR. O’BRIEN:

would then offer, 16, 17, 18, 19 and 20.

HEARING OFFICER HALLORAN: Admitted.

(Petitioner’s Exhibits Nos. 16

through 20 were admitted into

evidence.

HEARING OFFICER HALLORAN: While we are

waiting for Mr. O’Brien, I think there’s a sign-up sheet

in the back. It would probably be good to sign in; but

nevertheless, if anyone wants to step up and make a

comment or a statement, they can do so now before

Mr. O’Brien starts his case in chief. Sir? Come on up.

Are you going to give public comment or statement? Do

you wish to be sworn in?

MR. LES SZEWCZYK: No. Just comment.

HEARING OFFICER HALLORAN: State your name

and spell it, please.

MR. LES SZEWCZYK: My name is Les Szewczyk.

Last name is spelled S-z-e-w-c-z-y-k. As an individual

homeowner 

---

first of all, let me compliment Rochelle

Page 33

1  Waste Disposal, excellent garbage pickup, seems to be

2  more frequent emptying of the recycling container in the

3  Wal-Mart parking lot. I think these services are both

4  necessary and appropriate.

5

What’s not necessary seems to me or a

6  appropriate to the Rochelle area is the proposal to

7  expand by 300 percent the current landfill. This plan

in my view will be detrimental to the area for the

9  following reasons: The expanded landfill will take in

10 2,500 tons per day versus the current 320 tons. Truck

11 traffic will increase dramatically, and since 2,000 of

12 these 

2,500 tons will come from transfer stations, it

13 would not be possible to know entirely what kind of

14  substances enter the landfill.

15

I think landfill liners deteriorate, may

16 eventually leak. There’s a possibility of future

17 contamination of the aquifer located beneath the

18  landfill. Our water supply could be threatened. Few

19 people care to live near a huge landfill. I think this

20 will negatively affect the desirability of living,

21 working in the area.

22

It’s estimated Rochelle would receive

23  annually about 2.4 million in tax revenue from the

24  expansion. Currently it’s about 600,000. I think that

Page 34

1  much of this increase may have to be set aside for the

2  future cleanup and closure of this landfill. A decision

3  to expand will affect the Rochelle area for many years.

4  I hope that quality of life issues take priority over

5  economic considerations. I think the public good would

6  be better served by supporting Rochelle’s decision to

7  deny expansion of the landfill. Thank you.

8

HEARING OFFICER HALLORAN: Thank you, sir.

9  Anyone else at this point in time? Would you like to be

10 sworn in, sir, or just give public comment?

11

MR. KEN BETTS: Just comment.

12

HEARING OFFICER HALLORAN: Thank you, sir.

13  Have a seat.

14

MR. KEN BETTS: Thank you. Good morning. I

15 am Ken Betts. I am 76 years old and have lived in this

16  area for more than 60 years. In those 60 years I have

17 seen many improvements which have made this a better

18 community in which to live. It is my belief that this

19 expansion of the present landfill will not be in the

20 best interest of this community. Sadly to say, it will

21 a giant step backward.

22

I do not claim to be an expert on the

23  technical phase of landfill operations. I am leaving

24  that to the true experts, and a number of them have

Page 35

1  pretty well established that for many reasons we should

2  not significantly expand this landfill. However, when

3  we as civic-minded citizens considered the negative

4  aspect of this proposed expansion such as increased

5  traffic, fear of water contamination, devaluing of our

6  real estates, and compromising the quality of life which

7  we now enjoy, we are the experts.

8

It has been plainly stated time and time

9  again in many ways by the overwhelming percentage of the

10 local community that expanding this dump is a bad idea;

11  and this bad idea cannot be justified. Time and time

12  again all attempts to expand this landfill has been

13  rejected. Time and time again the operator has not

14 accepted no. Time and time again we have stated it is

15 not our responsibility to dispose of Chicago-area

16 garbage for the sole purpose of enhancing the profit of

17 the local operator.

18

In closing, I respectfully request that the

19  Illinois Pollution Control Board consider the concerns

20  of this community and uphold the voting of the siting

21  authority. Thank you.

22

HEARING OFFICER HALLORAN: Thank you, sir.

23  Could you spell your surname for the court reporter?

24

MR. BETTS: Ken Betts.

Page 36

1

HEARING OFFICER HALLORAN: Could you spell

2  your last name?

3

MR. BETTS: B-e-t-t-s.

4

HEARING OFFICER HALLORAN: Thank you, sir.

5  Anyone else at this time? Yes, sir.

6

And if you all do get a chance, those who

7  have spoken, please sign the sheet in the back of the

8  room. I think Mr. McKinney has it. Would you like to

9  be sworn in or just public comment?

10

MR. CEDERHOLM: Does it make a difference?

11

HEARING OFFICER HALLORAN: If you are sworn

12  in, you are subject to cross-examination; and the Board

13  will weigh that accordingly. In other words, if you’re

14  sworn in, the Board will probably give it more weight

15 than if you’re not.

16

MR. CEDERHOLM: That’s fine.

17

HEARING OFFICER HALLORAN: So you would like

18 to be sworn in?

19

MR. CEDERHOLM: Yes.

20

FRED CEDERHOLM,

21 having been first duly sworn, gave a public statement as

22 follows: I am Fred Cederholm, C-e-d-e-r-h-o-l-m; and I

23 am from Creston, Illinois. I have been thinking about

24 the landfill. Actually I have been thinking about the

Page 37

1  whole siting process, and I am truly in awe of it. Last

2  winter we were all given the opportunity to observe and

3  to participate in the public hearings for the proposed

4  landfill expansion. We saw the American system at work,

S  and it was amazing.

6

The hearing officer bent over backwards to

7  give each and every person their chance to speak. We

8  had the opportunity to hear the expert witnesses make

9  their presentations for each side and then be questioned

10 by counsel for the other. We heard from the public,

11 both pro and con.

12

Some presentations were more technical than

13 others. Some were more emotional, and some were more

14 eloquent. Some were long, while some were short. They

15 all showed thought, and each came from the heart.

16 That’s all in the record, and now that record must speak

17 for itself.

18

I learned a great deal from the presentations

19 that I heard. The engineering that now goes into

20 today’s landfills amazed me. If approved, this one was

21 not going to be our father’s landfill. It certainly was

22 not going to be our grandfather’s dump. I listened to

23 the conflicting testimonies of the hydrogeologists; and

24 while I did not understand some of what they said, I was

Page 38

1  impressed by their professionalism, consideration and

2  knowledge. That’s all in the record, and now that

3  record must speak for itself.

4

I listened to the objections raised by

5  counsel for each side. Sometimes I agreed with the

6  objections, other times I didn’t. Actually I found

7  myself mentally objecting to many more statements and

8  questions than those raised by the attorneys, but they

9  are the professionals in that regard. It is what they

10 do, and they’re very good at it. That’s all in the

11 record, and now that record must speak for itself.

12

When I was given the opportunity to speak, I

13 tried to focus on the mandated criteria and to put my

14 own personal twist on them. I made my comments in the

15 context of an economic indifference model and used the

16 example of a school yard teeter-toter to hammer home why

17 the proposed landfill was viewed so differently from the

18 Creston perspective than it was from the Rochelle one.

19  I tried to be fair in what I said. That’s all in the

20 record, and now that record must speak for itself.

21

While not being privy to any financial

22 projections or break-even point analyses, I drew from my

23 own experiences as a CPA and forensic accountant in my

24  comments regarding landfill need. I emphasized that

Page 39

1  given the huge investment and fixed cost of today’s

2  landfills, this expansion could not be limited solely to

3  local waste and be successful. I emphasized that if

4  this landfill expansion was to be approved, I wanted it

5  to be the most successful and profitable one in the

6  state and a model for all others to come.

7

I felt that our community would be far more

B  likely to experience problems if this proposed landfill

9  expansion was marginally profitable or showed recurring

10  financial losses. In my professional career, I

11  specialized in failures; so I know from where I speak.

12  I only ask throughout my presentation that the Rochelle

13  City Council acting as siting authority have the focused

14  thoughts and the wisdom of a Solomon.

15

In the days after I spoke last winter, I

16 heard far more negative comments about what I had said

17  than positive ones from both sides, the pros and the

18 cons. 

must have been pretty objective since I seem to

19 have everybody mad at me. While I was strongly opposed

20  to the first proposal on expanding the Creston/Rochelle

21  landfill, I was slowly approaching my indifference point

22  regarding the second one, that is, if there were some

23  other considerations of concessions tossed into the mix.

24

I had major reservations about the traffic

Page 40

1  impact of the expansion. I still do. Only time will

2  tell what we will face from the Global III Intermodal

3  and the projected population, residential., commercial

4  growth.

S

While I had major concerns about the impact

6  on ground water, I was very impressed by the

7  presentation of the landfill’s engineer. I also thought

8  back to a much earlier afternoon when I joined Ron

9  Schroeder to watch engineers fill a cubic yard hole with

10 water for a percolator test for Creston’s proposed sewer

11  system. When one man looked at his watch to start the

12  timing of the dissipation, Ron said, “This is Creston.

13  With that layer of red, hard, pan clay under us, Hell,

14  you’re not going to need a watch, you’re going to need a

15 calendar.” While unscientific, Ron had a point. I miss

16  you, Ron.

17

Still, I felt that the ground water well

18 guarantees should be expanded to pick up Creston’s three

19 existing wells. Such guarantees were ultimately agreed

20 to at the very next Creston Village Board meeting. This

21 was only fair, and it was the correct thing to do. So

22 thank you, Mr. G.

23

When I went to witness the siting authority

24  vote, I really didn’t know what would be the outcome. I

Page 41

1  must confess that I was surprised by the various

2  breakdowns of the votes that occurred. As an armchair

3  quarterback, I didn’t do very well in my mental

4  predictions. While some of the votes were as I

5  expected, far more were not, expected ayes were nays,

6  and expected nays were ayes. I had only the information

7  from the public hearings which I attended. I did not

8  spend any time with or have access to all the written

9  submissions to the Rochelle City Council. That’s all in

10 the record, and now that record must speak for itself.

11

I am Fred Cederhoim, and I have been

12 thinking. Thank you for letting me share my thoughts.

13

HEARING OFFICER HALLORAN: Thank you,

14  Mr. Cederholm. Mr. O’Brien, any questions?

15

MR. O’BRIEN: No.

16

HEARING OFFICER HALLORAN: Mr. Porter?

17

MR. PORTER: No.

18

HEARING OFFICER HALLORAN: Thank you, sir.

19 You may step down. Anybody else at this time that would

20  like to give comment or statement? Yes, ma’am. Which,

21 by the way, the Board encourages. Would you like to

22 give comment or statement? In other words, would you

23  like to be sworn in?

24

MS. CHARLOTTE BERG: No

Page 42

1

HEARING OFFICER HALLORAN: Thank you. You

2  may proceed.

3

MS. CHARLOTTE BERG: May name is Charlotte

4  Berg, B-e-r-g. I live at 422 Cederholm Street,

5  Rochelle, Illinois. We appreciate and want to thank the

6  support and decision of the City Council to deny the

7  landfill expansion. We know a lot of thought was given

8  to the whole idea for the safety of the citizens, for

9  the questionable need of landfill space, for protecting

10 the environment, and also for the growth potential in

11 both Rochelle and Creston. Thank you, City Council.

12

According to the nine criteria that has to be

13 met, need for more landfill space is not necessary.

14 Recently the landfill at Orchard Hills has been granted

15  a 20-year expansion. It is away from housing

16 development, but the Rochelle landfill is not. It is

17 within approximately one-half mile of the town of

18 Creston.

19

As to travel, although Highway Route 38 has

20 placed turn lanes at Mulford, it hasn’t eliminated or

21  cut the number of garbage trucks on the road. With

22  expansion, the number would increase greatly. Traffic

23  to and from Kishwaukee College and NItJ make it very busy

24  especially for a two-lane highway. If semis are allowed

Page 

43

1  to bring in garbage from 6:00 a.m. to 7:00 p.m., traffic

2  hazards could multiply. More semis traveling certainly

3  could raise the cost of road maintenance.

4

There are many trains, long trains traveling

5  the United Pacific Railway, some causing cars to wait 15

6  to 20 minutes before crossing. Certainly that will

7  cause delays for trucks getting in and out of the

8  landfill entrance area. I doubt if much can be done

9

about that, so there are still traffic problems.

10

I have an article printed in the Aurora

11  Beacon News dated June 2nd, 2000. It states that

12  Settlers Hill landfill there may be closed in three to

13  four years, and that would be any time now, which would

14  leave the area cities without a place to take their

15  refuge. So the City Council that week approved a two-

16 year option to purchase 7.7 acres of land to be used as

17  a solid waste transfer station. It would have garbage

18 haulers bring in. Then it would be shipped to other

19 areas, and it goes on to say that it is adjacent to a

20 railroad spur. There are no residents anywhere near.

21

And then it goes on to say, quote, “Rail cars

22 would take the refuge cars to a large landfill site

23 along the United Pacific Railroad line in the area of

24 Rochelle or other communities to the west of it. It is

Page 44

1  possible that some waste could be transferred by trucks,

2  depending upon the destination,” unquote.

3

I wonder why they even thought the Rochelle

4  area landfill if no one ever said it would be or could

S  be available. Would the Rochelle Waste Disposal ever

6  ask for permission to accept rail deliveries in the

7  future? Garbage in and out of a transfer station is not

8  monitored by the IEPA, and also sludge is not

9  recommended by the IEPA to be sent to a landfill; but

10  the cleanings from the NI pond were sent to the Rochelle

11  landfill.

12

There’s no proof that the landfill will ever

13  leak, but there’s no proof that it won’t. As a child, I

14  remember folks saying in this area of Illinois, there is

15 a fault line. We checked the Internet to see what

16 information was available. And the map shows two fault

17 lines in northern Illinois, and one of those travels

18  from the center of Ogle County to the southeast corner,

19 pretty close to the DeKalb/Ogle County line. Creston is

20 about two miles from that line.

21

Although there hasn’t been any severe

22 earthquakes, the last earthquake in the area was

23 September of 1972, a 4.5 magnitude. Who can safely say

24 that there will never be one? And I wonder if the

Page 45

1  landfill liner would split or tear if a quake ever

2  happened. Leakage into the aquifer could be very

3  possible. Once the watertable is contaminated, there’s

4  not much that can be done to clean it up.

5

Knowing that Cell One of the present landfill

6  has been leaking since before the application of the

7  expansion of the Rochelle Waste Disposal in the year of

8  2000, why hasn’t all effort been made to remove the

9  refuge from that cell even if it would mean that the

10  trash could not be accepted until the landfill cell was

11  empty and sealed. They don’t want landfills near

12  Chicago. There are too many people. Don’t we count as

13  people worth protecting?

14

I don’t see people rushing to build around a

15 landfill. Why? Certainly there are other methods of

16 getting revenue than by destroying the landscape or

17  taking the chance of polluting our water or ruining our

18  roads with heavy traffic or devaluating our land values.

19 Until better methods of disposing of our garbage or

20  trash is established, we do need landfills; but we don’t

21 need them right next to a village. Thank you.

22

HEARING OFFICER HALLORAN: Thank you, ma’am.

23  You may step down. Anyone else at this time like to

24 give comment or statement? Yes, sir. I want to note

Page 46

1  for the record that as I see it there are approximately,

2  I don’t know, 25 members of the public seated. Would

3  you like to give comment or statement?

4

MR. JIM RICH: I’ll just give comment.

5

HEARING OFFICER HALLORAN: Just comment.

6  Thank you very much.

7

MR. JIM RICH: Good morning. My name is Jim

S  Rich. I live in Galesburg, Illinois. Prior to moving

9  to west central Illinois, we lived here in the Rochelle/

10 Creston area. For family reasons, we sold our house in

11  this community, left our friends behind, and moved

12  closer to our home area. Nonetheless, I have continued

13  to maintain contact regularly with community happenings

14  and events here in the Rochelle area.

15

First, I would like to comment briefly

16 regarding the sale of our former residence here in 2001.

17  19480 Creston Road is located slightly more than one

18  quarter mile east from the berms or dirt hills

19 constructed in 1999 by the landfill applicant on the

20 proposed landfill site in anticipation of siting

21 approval for a significant landfill expansion.

22  That’s just down the road from where we used to live.

23

We all know that the applicant’s real estate

24  professional employed to testify during the 2003

Page 47

1  hearings regarding the impact of the landfill expansion

2  on local property values, Criteria No. 3, used the sale

3  of our former residence to document his position; and

4  that is landfills have no negative impact on local real

5  estate values. He cited the fact that we sold our

6  property in 2001 for more than we purchased it for in

7  1995.

8

Now I think it is only fitting and

9  appropriate to share with you the rest of the story

10  about the sale of our home. Before we listed our house

11  in 2000, we invited three different real estate brokers

12 to evaluate our property and provide their

13  recommendation for a listing value. Each recommendation

14 as provided by these brokers was significantly higher

15  than our final selling price, ranging, in fact, from 18

16 percent to nearly 28 percent higher which translates to

17 45,000 to 70,000 dollars.

18

Yes, the property did finally sell in 2001

19  for more than we paid for it six years earlier. Please

20 note, however, that we actually lost money on our

21 property. The lower selling price we received due the

22 proximity to and awareness of the proposed landfill

23  expansion did not exceed the original purchase price

24 plus the improvements that we made. And we did spend a

Page 48

1  lot of money on our improvements.

2

Additionally, it is important to recognize

3  that we had several interested parties tour our house

4

and property while it was on the market at the higher

5  price. More than one prospective buyer turned away; and

6  according to the realtor was no longer interested after

7  learning about the proposed landfill expansion nearby

8  and having witnessed, “wonder what those hills are down

9  there on the edge of the road.”.

10

Our real estate broker/owner at the time,

11 Nancy Watson of DeKalb Caldwell Banker Primes Realty,

12 could verify these facts. Conclusion: Awareness of a

13 pending landfill expansion in the vicinity of our

14 property most definitely had a negative impact on our

15 real estate value.

16

Now, I would like to turn my remarks to the

17 appeal by Rochelle Waste Disposal to the Illinois

18  Pollution Control Board regarding the Rochelle City

19 Council’s finding to deny the application for siting

20 approval. I am here today to express to you and for the

21 record the Illinois Pollution Control Board my full and

22 unconditional support for the April 24th, 2003, Rochelle

23  City Council findings on the nine criteria and the

24  subsequent resolution to deny the application for siting

Page 49

1  approval for expansion of the Rochelle landfill.

2

More importantly, I respectfully request that

3  the Illinois Pollution Control Board concur with the

4  Rochelle City Council’s findings on these criterion and

5  support the denial of the expansion application.

6  Without a doubt, more than one Council member made the

7  correct, obvious-choice decisions that day when asked to

8  vote aye or nay on each of the nine siting criterion.

9

Surely it has to be crystal clear that the

10 only outcome of these proceedings today and tomorrow can

11 only be to concur with the leaders of this community who

12 voted that day, those individuals who live here, work

13 here, send their children to school here, worship here,

14 people who call Rochelle their hometown, the same people

15 who will leave behind a legacy in this community forever

16  through family heritage, business acumen and especially

17  good sound judgment.

18

I cannot fathom how morally, rationally, or

19 ethically the decision which has already been made by

20 these community leaders based on fair proceedings and

21 unbiased consideration should go beyond the people in

22 this community. To do so would be to recklessly

23 question their individual integrity. To me that would

24 be an appalling disservice to these people.

Page 50

1

Therefore, the outcome of these proceedings

2  can only be to deny this application for expansion, the

3  same outcome which resulted from the Council vote on

4

April 24th, 2003. The evidence was presented, digested,

S  studied, and reviewed over and over again. Scientists

6

and professionals in their fields did their very best to

7  convince the Council that this landfill expansion met

S  the criteria. And the outcome 

well, you know,

9  several individuals known as the siting authority,

10 community residents and businessmen, peer leaders,

11 people any community would be proud to have as leaders

12 in local government 

these people voted that the

13  applicant failed to meet not one, not two, but four of

14  the nine criteria as established by the Illinois EPA.

15 Lest we forget, four of five votes were cast as nay for

16 Criterion 1, need. Three of five votes were cast as nay

17 on Criterion No. 2, protecting the health, safety and

18 welfare. Three of five votes nay on Criterion 3,

19 location compatible. And four of five votes nay were

20 cast on Criterion 6, traffic impact.

21

Yes, these people were under a lot of

22 pressure. And that pressure came from many places,

23  including the applicant. Yet these people ignored the

24 pressure; and based upon the evidence presented by the

Page 51

1  applicant and discussed during the hearings, these

2  people voted to deny the application for expansion based

3  upon the failure of the application to meet four of nine

4  criteria by a margin of 14 no votes out of 20 possible

S  on these four criterion alone.

6

Therefore, I say once again, I can only find

7  one logical outcome from these proceedings, that the

8  Illinois Pollution Control Board respect and support the

9

decisions made fairly based on the evidence presented by

10  this body of people on April 24th, 2003, These people

11  invested hours and hours of their time and energy into

12 this process. They ignored the pressures from outside.

13  They considered the evidence. They made a decision on

14 each criterion. I say the process has worked as it

15  should and as it was planned. Now, let’s stand by their

16 vote to deny the application for expansion once and for

17 all, and let this community move ahead with its future.

18 Thank you.

19

HEARING OFFICER HALLORAN: Thank you, sir.

20 Anyone else at this time like to give public comment or

21 public statement? Yes, sir. Would you like to be sworn

22  in, sir?

23

MR. BRUCE MORRALL: I don’t know for sure.

24  Can I interject anything, any new evidence at all,

Page 52

1.      anything into this hearing?

2

HEARING OFFICER HALLORAN: It’s based

3  exclusively on the record below.

4

MR. BRUCE MORRALL: On the record that’s

5  already been established?

6

HEARING OFFICER HALLORAN: That’s correct.

7

MR. BRUCE MORRALL: Then I’ll just make

8  comment. My name is Bruce Morrall. I am a resident of

9  Ogle County.

10

HEARING OFFICER HALLORAN: Could you spell

11 your last name, please?

12

MR. BRUCE MORRALL: M-o-r-r-a-l-l.

13

HEARING OFFICER HALLORAN: Thank you, sir.

14

MR. BRUCE MORRALL: And I live in Monroe

15 Center. First part of my life I lived in Chicago for

16 about 30 years, and you’re familiar with that area. And

17  landfills that they had back at that time was just dump

18  it, leave it on the ground. Lake Calumet was one of the

19 big depositories of refuse and garbage at that time.

20 That was bad technology, just dumping and leaving it on

21 the ground, do whatever, the landfills back then.

22

I don’t know when this 

when the rubber

23 overlay on the ground came in. Has that been here for

24  the last 20 years, 30 years, what? How long has that

Page 53

1  been?

2

HEARING OFFICER HALLORAN: I have no idea,

3  sir.

4

MR. MORRALL: I don’t know, either; but it

5  seems to me it’s not a very good technology either.

6  It’s a stop-gap thing. I think they leak regardless of

7  what everybody else says, but there’s new technology

8  come on line here. Are you familiar with the change in

9

world technologies? Anybody? Okay. They have built a

10 plant in Carthage, Missouri, for the ConAgra Company,

11  and they are building one in Philadelphia.

12

What this does is it’s flash cooking of solid

13 waste, everything from sewage, old tires to pulverized

14  electronics, industrial refuse, and turning them into

15 viable products. This process, it says, if America’s

16 annual 12 billion tons of solid waste was pressure

17 cooked, it would yield 5 billion barrels of oil for 10

18  to 15 dollars a barrel, more than an enough to replace

19 the 4 billion barrels now imported each year.

20

What they do is use steam generated by the

21 methane gases taken off from the landfills and do this

22 process. Anybody who wants anything, I have handouts on

23  it all. But we got to stop the madness. We can’t be

24 doing this to ourselves. In the news yesterday, there

Page 54

1  was in Freeport, Taylor Park, people had a high case of

2  cancer there. So they went and finally got somebody to

3  investigate it. They found high levels of lead in the

4  soil. It’s about the environment. It is the

5  environment. That’s why we’re here. We’re trying to

6  protect the environment, not sell it. So that’s all I

7  have got to say.

8

HEARING OFFICER HALLORAN: Thank you very

9  much, sir. Anyone else at this time would like to give

10 public comment or public statement? Yes, sir. Would

11  you like to be sworn in?

12

MR. HUGH McDERMITT: Just comment, public

13  comment. I have a cold and sore throat, so I hope I can

14  hold up to this.

15

HEARING OFFICER HALLORAN: I am sure you’ll

16 do fine.

17

MR. HUGH McDERMITT: My name is Hugh

18  McDermitt, M-c-D-e-r-m-i-t-t. I live in Rochelle. I

19 have been here almost 20 years now on 207 School Avenue,

20 and I’d like to read some comments that I have put

21  together here.

22

Back in 1999 there were a group of citizens

23  that got together and was concerned about the expansion

24  of the Rochelle landfill. And from that a group was

Page 55

1  formed called the Concerned Citizens of Ogle County.

2  The CCOC felt that the proposed expansion was

3  progressing without proper community support. The group

4  hoped to find solutions to some of Ogle County’s public

5  concerns, help ordinary citizens become actively

6  involved in local issues, and would encourage them to

7  make a difference resulting in a higher quality of life

8  in Ogle County for now and in the future.

9

The CCOC has worked to increase public

10 awareness on issues relating to the health, welfare,

11  safety of Ogle County residents to encourage the

12  responsible use of resources and to find solutions to

13 public concerns as they relate to our community and to

14 motivate local citizens to express their viewpoints on

15  these issues.

16

As concerns and questions arose from the

17  initial study, the CCOC decided they should hire legal

18  counsel and technical experts to assist us in further

19 research on this landfill expansion issue. We started

20 holding public meetings to inform area residents of the

21 potential hazards inherent in the landfill expansion.

22

It was at these informal meetings 

these

23  informational meetings, excuse me, that we obtained our

24  large base for support was from the citizens of Rochelle

Page 56

1  and the surrounding area. The CCOC would like to

2  emphasize that as a group we are not against landfills,

3  per se. Each side has to be judged on its own merits,

4  on the hydrogeology of the specific cite.

5

After all our investigating efforts, we

6  believe that this landfill located over the aquifer that

7  supplies water to the local area is not in the best

8  interest of the surrounding community. The CCOC would

9  like to take this opportunity to urge the IPCB to

10  support the Rochelle City Council’s decision to deny the

11  siting application of RWD.

12

We believe the decision of the Rochelle City

13  Council was correct. It was not based on and was not

14 prejudged 

it was not bias, excuse me, and was not

15 prejudged; but rather a decision based on the submitted

16 evidence, thus making the proceedings fundamentally

17  fair. We believe the siting authority thoroughly

18 analyzed the evidence provided by all interested parties

19 at the hearings in February of 2003.

20

They took into consideration the actual

21 application, expert testimony and summary presented by

22 the applicant, expert testimony and summary presented by

23 the CCOC, the hearing officer’s report and

24 recommendations, the Rochelle City attorney’s report and

Page 57

1  the public comments from citizens.

2

The CCOC contends that the hearing officer

3  did what he was hired to do. He recommended that all

4  nine criteria had been met by the applicant; but for

5  that nine that he approved, there were 50 special

6  conditions and 9 general special conditions attached.

7  It is a matter of opinion whether the application was

8  passed or not. The CCOC strongly believes that the

9  application did not pass.

we formed from

we know from past history

that special conditions do not hold up after an

application

has been approved.

It is our understanding

13  that the City Council is free to accept or reject any or

all of the findings of fact, conclusions of law and

recommendations of the hearing officer.

The Rochelle

City Council after researching and reviewing the

application,

the hearing officer’s

findings,

the

18 Rochelle City attorney’s recommendation, CCOC, hearings,

briefings

voted on each of the nine criteria.

The four

criteria

that tailed are listed below here.

21

Criteria 1, need; Criteria 2, to protect

22 public health, safety and welfare; Criteria 3, minimize

23 the effect on the value of surrounding property;

24 Criteria 6 was traffic. All those were voted down.

Page 58

The CCOC felt Rochelle’s City Council’s vote

on the night of April 24th, 2003, was fair and unbiased

3  because of what they did to arrive at that decision.

4  They did their homework. No. 2, they looked beyond some

5  of the applicants high-tech, generalized expert

6

witnesses. No. 3, they protected the health, safety and

welfare of the people they served.

No. 4, they looked

at the applicant’s

past operational

history.

9

No. 5, they realized that nothing had changed

between the first and second application

except for

sizing down of a few acres.

No. 6, they reviewed the

12  Illinois National History Survey in which Illinois

13  residents identified water quality as their most

important issue.

No. 7, they considered the already

leaking cell at the landfill.

No. 8, they considered

the potential

battle brewing over who is responsible

for

closing the leaking cell, the city of Rochelle or the

18 operator.

No. 9, they noted that approximately

percent of the waste accepted would originate

from

21  transfer stations located in Chicago as well as Cook,

22 DuPage and Kane counties.

23 No. 10, they realized that the estimated 442 trucks per

day in and out would create a traffic

hazard on Mulford

Page 59

Road and Route 38, and no amount of turn lanes would

solve that problem.

3

As reflected in Item 6 above, the most

4

important issue to the people of this area is the

S  quality of our water. We believe it is wiser to be very

conservative

about the risk of our water system.

7  there is any likelihood of future ground water

S

contamination,

error on the conservative

side.

9

So what I’m saying here, let us uphold the

10 informed decision made by the Rochelle City Council to

deny the expansion application.

Thank you very much.

12

HEARING OFFICER HALLORAN: Thank you, sir.

Anyone else would like to give public comment or

14  statement. Would you like to be sworn in or just give

public comment?

MRS. ANN McDERMITT:

Comment is fine.

17

HEARING OFFICER HALLORAN: Thank you.

MRS. ANN McDERMITT:

I am Ann Mcflermitt,

207

School Avenue, Rochelle.

We have lived in Rochelle

20  nearly 20 years. We have children and grandchildren in

21.  Creston. And there are many, many objections I have to

22 the location of this dump; but the primary one is the

23  fact that its location is over the aquifer that supplies

24 the water for Creston, Rochelle, and the surrounding

Page 60

area.

2

It’s in one half mile of a school, and it is

3  nearly adjacent to the city of Creston. This is a

decided threat to the health, safety and welfare of the

citizens

of the community; and I urge you to stand

behind Rochelle City Council’s decision to deny this

request.

Thank you.

8

HEARING OFFICER HALLORAN: Thank you, ma’am.

Anyone else like to give public comment or statement?

don’t see any hands.

Let’s take a five-minute break.

And when we come back, we’re going to start with

12 Mr. O’Brien’s case in chief. Thank you.

13

(A brief recess was taken.)

HEARING OFFICER HALLORAN:

We are back on the

record.

It’s approximately

10:28.

Mr. O’Brien will

commence his case in chief.

First witness?

MR. O’BRIEN:

I’d call former Council member

Donald Bubik as if on cross-examination.

I guess since

19  I’m kind of seated behind the witness, I’ll move over to

20  the podium.

HEARING OFFICER HALLORAN:

Okay.

Sir, if you

22  could raise your right hand, the court reporter will

23  swear you in.

DONALD K. BUBIK,

Page 61

1  called as a witness herein, having been first duly

2  sworn, was examined and testified as follows:

3

DIRECT EXAMINATION

4

BY MR. O’BRIEN:

Sir, would you please state your full name

6  and spell your last name for the record.

Donald K. Bubik.

That’s spelled B-u-b-i-k.

And, Mr. Bubik, where do you live?

9

A.   1206 Brookside Drive, Rochelle, Illinois.

And, sir, you were on the City Council that

11 made the decision denying the application; is that

12 correct?

13

A.

Yes.

14

And you had been on the City Council for how

long approximately?

Two years.

And you were appointed to your position

I think after the

immediately after the 2001

election,

is that correct?

20

A.

Yes.

21

Q.  So you served from 2001 until essentially

22  right after the decision in this case on May 1st when

23  the new council was sworn in?

24

A.

Yes.

Page 62

(Petitioner’s

Exhibit No. 2

2

was identified.)

3  BY MR. O’BRIEN:

Now, I’d like to refer you to Petitioner’s

Exhibit 2 which is a newspaper article

about the

6  decision, and specifically to the 

HEARING OFFICER HALLORAN:

Thank you, sir.

BY MR. O’BRIEN:

9

Q.  Specifically to the comments that you made to

10  the newspaper immediately after the decision, which are

highlighted

on the second to last

In pink.

13

in pink on the last

tJh-huh, I see that.

And ask you is it true that immediately after

16 the vote on the siting hearing, you told the newspaper

reporter,

quote, “I voted the way the citizens

of this

town wanted it to go.”

Did you say that?

Yes.

20

And did you further say immediately after the

21 vote to that reporter, “The people of this area do not

22  want to make a landfill. The message I was getting was

23 that we didn’t want it”?

24

A.  Yes. Can I make another comment?

Page 63

1

You’ll have an opportunity

to respond.

2

A.

Okay.

3

And after the hearing which ended on

believe it was March 4th and before the decision on

April 24th, is it true that you were approached by

several people who told you that they opposed the

siting?

Yes.

And who were those people that approached you

after the hearing and before the decision?

11

A.

Barb Renick.

12

Spell that, please?

R-e-n-i-c-k?

13

A.  Yes, I believe that’s correct. Frank

14  Kranbuhl.

K-r-a-n-b-u-h-1?

Yes.

And Richard Ohlinger.

O-h-l-i-n-g-e-r?

Right.

Did all three of them express to you their

opposition to the landfill?

Yes, they did.

Were all three of those people members of the

CCOC, to your knowledge?

I don’t know.

Page 64

1

Do you know if any of them were?

2

A.  No.

Now, during the hearing, did the president of

4

the CCOC, Frank Beardin, come to your house on the

Sunday of the hearing?

Yes, he did.

And would you relate what happened at that

time?

What did he do?

Frank came to the door, and I think he had

been out passing out signs.

And he said, “I have this

tape that I’d like for you to see, Touched By An Angel.”

And he gave it to me, and that was the extent of our

13 conversation.

Did he tell you it was about landfills?

You know, I don’t remember.

Yeah, I think he

did mention that it could pertain to landfills.

He said

there’s some important information,

although I did not

look at the tape.

Okay.

Is Petitioner’s

Exhibit 14 the

videotape that he gave you that day?

That’s it.

Now, this occurred on the Sunday during the

23 hearing; is that correct?

24

A.

Yes, sir.

Page 65

And the hearing had taken place for three

2  days the previous week, there was a recess. So this is

3  on Sunday, March 2nd, that he came to your house?

4

A.  Yes, I believe it was.

5

Q.  Then the hearing resumed the following day?

Yes.

Did you disclose to anyone that Mr. Beardin

had come to you and asked you to see this video?

9

MR. PORTER: Object. Obviously we disclosed

it.

We’re the ones that produced the videotape in

answer to interrogatories.

12  BY MR. O’BRIEN:

13

Before the decision,

did you disclose that to

anyone?

May I answer that?

MR. PORTER:

Absolutely.

HEARING OFFICER HALLORAN:

Is that fine with

you, Mr. Porter?

19

MR. PORTER: No objection.

HEARING OFFICER HALLORAN:

Okay.

You may

21  continue.

22

A.  Repeat the question.

23  BY MR. O’BRIEN:

24

Q.  Before the decision on April 24th, did you

Page 66

disclose to anyone that Mr. Beardin had come to you and

2  made this ex parte contact?

3

A.  No, except my wife. She knew that he had

4

stopped by.

Now, Mr. Beardin during the hearing was

6  seated at counsel table with Mr. Mueller, is that

correct?

Yes, he was.

9

Q.  And were you aware that the CCOC was a party

to the siting proceedings?

Oh, yes.

12

0.  Were you aware that Mr. Beardin was the

13  president of the CCOC?

Yes.

During the hearing, did Mr. Beardin or his

counsel ever disclose that this ex parte communication

had taken place?

18

MR. PORTER: Objection, record speaks for

itself.

20

HEARING OFFICER HALLORAN: Mr. O’Brien?

MR. O’BRIEN:

I’m just asking Mr. Bubik if he

22 knows whether it was disclosed. It was his ex parte

23  communication.

24

HEARING OFFICER HALLORAN: Overruled. He may

Page 67

respond if he is able.

2

A.  Would you repeat that again?

3  BY MR. O’BRIEN:

4

0.  Do you know if Mr. Beardin or his counsel

disclosed that this ex parte communication had been made

6  with you during the hearing?

No.

MR. PORTER:

I have to object.

I let it

9  slide a couple times. Mr. O’Brien keeps referring to it

as an ex parte communication.

Clearly that calls for

legal communication this witness is not able to testify

12  to. If he wants to ask him if he was aware of the

13  communication 

MR. O’BRIEN:

I’ll rephrase the question.

HEARING OFFICER HALLORAN:

Objection

16  sustained. Please rephrase.

BY MR. O’BRIEN:

Are you aware of whether or not Mr. Beardin

or his counsel disclosed that he had had this

communication with you on the Sunday during the hearing?

21

A.

No.

22

Q.  Now, after the hearing began, were you

23 contacted by other people before the decision was

24 rendered to express their opposition to the landfill?

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Page 69

Do you recall that?

Did I ask you that

2  question?

3

A.

Yes.

4

0.

Do you recall that I said “Would it have been

as many as 20 times that you were approached by people

6  after the hearing began and before the decision was

made?”

Oh, that part.

9

Q.  Do you remember that?

Yes, I remember it now.

What was your answer?

12

A.

No.

13

Do you remember that I asked you, “Would it

14  have been as many 20 times, 

“

and your answer was under

oath, “I don’t recall”?

I don’t recall.

That’s correct;

it could have been as many as

20 times?

19

MR. PORTER: Same objection, move to strike.

20  It’s not impeachment.

21

HEARING OFFICER HALLORAN: Mr. O’Brien?

22

MR. O’BRIEN: I’m not impeaching. I’m asking

23 him the question.

BY MR. O’BRIEN:

Page 70

1

Could it have been as many as 20 times that

2  you were contacted by people expressing their

3  opposition?

4

A.

No. People didn’t 

5

Do you remember me asking you that question

6  and asking you, would it have been as many 20 times and

7  you saying I don’t recall?

8

A.

I don’t recall.

9

MR. PORTER: Same objection, move to strike.

10  It’s not impeachment.

11

HEARING OFFICER HALLORAN: Overruled.

BY MR. O’BRIEN:

13

Q.  Do you recall that I asked you, could it have

14  been as many as 100 times that people approached you

15 after the hearing began and before the 

- -

16

A.

I recall that.

17

Q.  And what was your answer?

18

A.

I don’t recall.

19

Q.  And then I asked you could it have been as

20 many as 1,000 times that you were contacted by people

21  after that the hearing began?

22

A.

I remember that.

23

Q.  And you said what?

24

A.

I don’t recall.

Page 71

1

No.

You said you’d rather doubt it, but you

weren’t keeping a score card.

3

A.

Yeah.

4

MR. PORTER:

Same objection.

5

HEARING OFFICER HALLORAN: Excuse me,

Mr. O’Brien, where is your impeachment?

Mr. Porter has

7  an objection regarding improper impeachment.

8

MR. O’BRIEN: My impeachment is simply to

9  suggest, he says, no, he wasn’t contacted by as many as

10  20 people. In the deposition he said he didn’t recall.

11  That’s the thrust of it.

BY MR. O’BRIEN:

13

I’m asking him now an independent question,

14  which is: Were you contacted as many as 100 times?

15

A.

I was not.

16

You were not?

17

A.

No, sir.

18

You’re sure of that now?

19

A.

Yes, sir.

20

But in the deposition

you testified

that you

21 did not recall 

if it was as many as 100 times?

Yeah, I

yes.

So how many times do you think you were

contacted after the hearing began by people to express

Page 72

1  their opposition?

2

MR. PORTER: Objection, asked and answered.

He’s already said none.

4

HEARING OFFICER HALLORAN: Sustained.

BY MR. O’BRIEN:

Now, after the hearing had ended but before

7  the decision was rendered, were you approached by Ken

Roeglin?

Yes.

10

Q.  And, in fact, did Mr. Roeglin give to you an

11  article from the Florida newspaper, The Bradenton

Florida Herald Tribune of March 16th?

Yes, he did.

That was a part of the record.

(Petitioner’s

Exhibit No. S

was identified.)

16 BY MR. O’BRIEN:

17

Q.  And is Petitioner’s Exhibit 8 that newspaper

18  article that he gave to you?

19

HEARING OFFICER HALLORAN: Thank you.

20 BY MR. O’BRIEN:

Is that the newspaper article

he gave to you?

22

A.

Yes.

And was Mr. Roeglin a member of the Concerned

Citizens of Ogle County?

Page 73

1

A.

I don’t know.

And did you read the article?

Yes.

4

Did you know at that time that it was a part

5  of the record?

MR. PORTER:

Objection,

irrelevant.

7

HEARING OFFICER HALLORAN: Mr. O’Brien?

8

MR. O’BRIEN: I think it’s relevant,

otherwise he shouldn’t have been reading it.

10 certainly knows that.

11

MR. PORTER: I have another objection then.

You cannot dive into the middle of impressions of a City

Council member,

You actually cannot ask them whether or

14 not they have read a specific document. You can ask

15 them if a document was available, and this one was

16 available. He’s already testified it’s part of the

17 record.

18

MR. O’BRIEN: If an ex parte communication

takes place, the fact of that ex parte communication is

20 admissable. Whether he considered this in making a

decision,

I would agree, his mental process is not; but

certainly

the fact of whether he got this article

in an

ex parte communication and read it, that fact

HEARING OFFICER HALLORAN:

I agree with

Page 74

1  Mr. Porter. Objection sustained. Whether or not he

read it is irrelevant.

Just the fact that he was aware

3  of it, that may be a better question at this point.

4

MR. O’BRIEN: Whether or not he read it is

5  irrelevant even though it’s an ex parte communication?

6

HEARING OFFICER HALLORAN: As far as a

7  decision-maker.

8

MR. O’BRIEN: I guess what I would argue to

9  you, Mr. Halloran, is the fact of the communication, the

10  fact that he got this article outside the record.

11 Whether he got something in the record and read it, that

I agree I’m not allowed to explore.

But if somebody

gives him something ex parte, I think the fact of that

14

communication 

it would be as if somebody came into a

15 juror and gave them an article that said that this

16 person on trial for burglary had committed five other

17 burglaries. The juror would be required to testify that

that communication took place and they read that

19 article. Whether it influenced them under Rule 606 of

the Federal Rules of Evidence would not be admissable.

HEARING OFFICER HALLORAN:

Mr. Porter?

22

MR. PORTER: Again, this article is already

23 part of the record. It’s acknowledged that it’s part of

the record.

I don’t believe there is any case law that

Page

75

establishes

that the mere fact that it came to him other

than through the City Clerk’s office is in any way

relevant.

He’s already admitted that anyhow.

4

whether or not he read it necessarily gets to what his

5  decision process was in coming to the decision that was

6  made, and that’s already 

the case law is absolutely

7  clear that if it’s part of the record, he doesn’t get an

8

opportunity to ask 

if it’s been reviewed; and this is

9  part of the record.

10

HEARING OFFICER HALLORAN: I am going to

11  sustain Mr. Porter’s objection. You may proceed as an

offer of proof, and the witness may answer.

MR. O’BRIEN:

Okay.

14  BY MR. O’BRIEN:

15

Did you read the article?

16

A.

Yes.

17

Q.  Did you read the statement in the article

18 that liners meant to contain leche often fail over time

allowing leche to leak out and contaminate the aquifer?

20 Did you read that sentence?

21

MR. PORTER: Objection, asked and answered.

He just said he read the article.

HEARING OFFICER HALLORAN:

Overruled.

24  BY MR. O’BRIEN:

Page 76

1

Q.  Did you read that sentence?

2

A.

Yes.

And after the decision,

did you have a

4  conversation with Tom Hubert about why you had voted as

5  you did?

Oh, after it was made?

7

Yes.

8

A.

Yes, sir.

And did you tell Hubert among other

10  things 

1.

HEARING OFFICER HALLORAN: Mr. Porter?

MR. PORTER:

I’m going to let the question be

13 out, but I have an objection as soon as it does.

14

MR. O’BRIEN: I’ll ask the question, and you

15 wait until the objection is ruled on.

BY MR. O’BRIEN:

17

Q.  Did you tell Mr. Hubert in the course of

18 explaining why you voted as you did that this article

was something you were concerned about?

MR. PORTER:

Well

HEARING OFFICER HALLORAN:

Mr. Porter?

MR. PORTER:

I object.

If it’s obviously

23  asking about the reasons that the City Council member

voted as to a specific criteria,

it seeks testimony

Page 77

regarding his mental impressions.

HEARING OFFICER HALLORAN:

You have to

3  enlighten me. Who is Mr. HUbert?

4

MR. O’BRIEN: He is seated next to me. He is

5  the project manager.

6

HEARING OFFICER HALLORAN: Okay.

7

MR. PORTER: The objection is it seeks

8  information regarding deliberative process.

MR. O’BRIEN:

I’d like to address that issue.

10

HEARING OFFICER HALLORAN: You may,

11  Mr. O’brien.

MR. O’BRIEN:

I have a brief that basically

deals with the issue that I raise in my opening, and

HEARING OFFICER HALLORAN:

I can assure you,

15  I am not going to read it at this juncture. Probably it

would have been more appropriate

to give it to me

17 beforehand, but that’s fine,

18

MR. O’BRIEN: As I was arguing in my opening

statement,

I won’t reiterate

all of that, this witness’s

20 testimony as to whether or not any given piece of

21  information in or out of the hearing, how it affected

him is not admissable.

Similarly it’s not

the

purpose of this brief predominantly

is to

this

24  D’Maggio line of authority that says you can’t explore

Page 7S

1  the mental process, that’s based on a larger body of

Federal and State case law that says you cannot invade

the decision-maker’s

mental processes.

And it is

4  equally inappropriate for the decision-maker to dispel

the inference or implication

of prejudice by testifying

that they weren’t influenced by this or that piece of

7  evidence or this or that ex parte communication.

However, the case law also says that the

decision-maker’s

out-of-court

statements,

10 post-decisional statements about their decision is

11  admissable. There are a number of cases that have said

that once the decision has been made on April 24th

or

13  let’s say even on April 28th when they reconsidered

14  it 

once that decision has been made, their

15 out-of-court statements as to why they made that

16  decision is admissable.

17

And the PCB and D’Maggio line of authority

18 has not dealt with that. What I’m saying is Mr. Bubik’s

19  comments to Mr. Hilbert that he took this article into

consideration

in rendering his decision is admissable,

and the cases that I cite in the brief stand for that

proposition.

HEARING OFFICER HALLORAN:

Okay.

At this

juncture,

I am going to sustain Mr. Porter’s objection.

Page 79

1  You may proceed as an offer of proof, but again I think

2  it would have been better to brief this and hand it to

3  me prior to the hearing because it was a reasonable

4

probability

this issue would have come up.

And I will

5  not make a knee-jerk reaction based on new case law that

6

you have cited. 

So

in any event, you may proceed.

You

7  can ask the question as an offer of proof. Thank you,

Mr. O’Brien.

MR. O’BRIEN:

I would say that’s why I raised

10 it in the opening statement. That’s the reason I raised

11 the issue.

HEARING OFFICER HALLORAN:

Thank you.

BY MR. O’BRIEN:

14

Q.  So, Mr. Bubik, did you tell Mr. Hubert in

15  this May 7th conversation that one of the reasons you

were concerned about the ground water is because what

17 you had read in this article?

18

A.  I don’t recall my exact words, but yes.

19

MR. O’BRIEN: Just review my notes, and I

20 think I’m done.

21

HEARING OFFICER HALLORAN: Take your time,

22 Mr. O’Brien.

MR. O’BRIEN:

That’s all the questions I

24 have.

Page 80

1

HEARING OFFICER HALLORAN: Thank you. I will

2  accept your hearing brief as Hearing Officer Exhibit

3  No. 1.

4

(Hearing Officer Exhibit No. 1

5

was identified.)

6

HEARING OFFICER HALLORAN: Mr. Porter?

7

MR. PORTER: Mr. Halloran, just to not be out

8  done, I happen to have a trial brief that addresses the

9  issue of mental processes, which I guess I will hand up,

10 as well. It does not regretfully address the issue of

whether or not a statement has been made about a mental

12 process outside of the hearing. I wasn’t aware that

that was going to be an issue, but it does address the

14  fact that you can’t get into mental processes.

HEARING OFFICER HALLORAN:

Thank you, Mr.

16  Porter. I will mark that as Hearing Officer Exhibit

17 No. 2.

18

(Hearing Office Exhibit No. 2

19

was identified.)

20

MR. PORTER: Thank you. May I proceed?

21

HEARING OFFICER HALLORAN: You may.

22

CROSS-EXAMINATION

23

BY MR. PORTER:

24

Q.  Mr. Bubik, you testified that there were I

Page 81

1  think three individuals that tried to talk to you after

2  the application was filed on November 22nd, 2002, and

3  before decision. Can you repeat their names for me? I

4

missed one of them.

5

A.  Dick Ohlinger, Frank Kranbuhl and barb

6  Renick.

7

Q.  When these individuals came up to you and

8  started to express their opinion regarding the landfill

9  application, what did you tell them?

10

A.

I told them that I was unable to discuss

11 anything about the landfill. That was the end of our

conversation.

Did any of those unsolicited

statements have

14 any impact on your decision?

15

MR. O’BRIEN: I object, and I object for the

16 reasons set forth in my brief.

17

HEARING OFFICER HALLORAN: I’m sorry,

18 Mr. O’brien. Could you read the question back, Tracy?

19

(The record was read.)

MR. O’BRIEN:

I object for all the reasons

21 set forth in this brief. I think it’s entirely

22 inappropriate for the decision-maker to state that self-

23 serving conclusion, and I think this is an important

24  issue that the hearing officer ought to consider right

Page 82

1  at this time because it’s going to come up time and

2  again.

3

HEARING OFFICER HALLORAN: I am going to

4

sustain your objection. Mr. Porter, you may ask as an

S  offer of proof.

6

MR. PORTER: The question has been asked. Do

7  you want me to reiterate it?

8

HEARING OFFICER HALLORAN: Yes, please,

9  Mr. Porter. And before you begin, since this was going

10  to be a foreseeable situation where it was going to

11 arise time and time again, I think we’ve had, I don’t

12  know, four or five telephonic status conferences and

13  pre- hearing conferences. Nothing was said about this

14  possible issue coming up. With that said, Mr. Porter,

iS you may proceed.

16

MR. PORTER: And along those lines, I don’t

17 have the research or the ability to at this second go

18 through the nine-page brief that’s been handed to me to

19 respond, and obviously we will do so with the Board at

20  the appropriate time.

21 BY MR. PORTER:

22

Q.

The question was: Did any of these

23 unsolicited statements by Mr. Renick 

I’m sorry;

24 Ms. Renick, Mr. Ohlinger or the other individual in any

Page 83

1  way impact your decision?

2

A.

No, sir.

3

Did they in any way prejudice your decision?

4

A.

No, sir.

MR. O’BRIEN:

I understand this is all just

an offer of prove, and I have a standing objection.

HEARING OFFICER HALLORAN:

That is correct.

8

MR. O’BRIEN: Thank you.

MR. PORTER:

And this question

I view as

different

and not under the offer of proof, Mr. Hearing

Officer,

the forthcoming question.

12 BY MR. PORTER:

13

Was anything that those three individuals

said different

than the statements you heard during the

hearing?

16

MR. O’BRIEN: Object to that question for the

same reason.

HEARING OFFICER HALLORAN:

Overruled.

You

may answer.

Would you repeat that again?

BY MR. PORTER:

22

Q.  Was anything that those three individuals

23 said to you outside of the hearing anything different

24 than what you heard during the hearing? I want to

Page 84

withdraw the question and ask it again.

2

MR. O’BRIEN: Can I address the objection a

little

more thoroughly.

4

MR. PORTER: Let me ask the question again,

if you don’t mind, Mr. O’Brien.

HEARING OFFICER HALLORAN:

And then make your

objection if need be.

Thanks.

BY MR. PORTER:

9

Q.

Was anything that those three individuals

said to you different

than what you heard during the

hearing or in the public comments that were filed within

the hearing?

13

MR. O’BRIEN: Before you answer, I would like

14 to object and state the reasons. Mr. Porter has argued

15 to me and I assume in his brief that what part of the

hearing the decision-maker

attended,

what evidence he

heard, what he considered,

how it influenced him, none

18 of that is relevant. And now he’s asking him to

basically say that something that he heard outside the

20 hearing was just like what he heard in the hearing, and

it seems to me that that’s entirely inappropriate.

22 other words, the Appellate Court has spoken to this

23  issue and said it’s outside the realm of examination as

24 to what parts of the hearing they listen to, what

Page 85

1  evidence they heard. And now Mr. Porter is asking him,

well, did you hear this kind of evidence, and then I’m

3  precluded from asking him well what phase of the hearing

4

did you actually even attend.

HEARING OFFICER HALLORAN:

Mr. Porter,

are

6

you trying to backdoor

MR. PORTER:

I am not.

As the hearing

officer is aware, the issue is whether or not there was

9  any prejudice as to the decision; and that’s one of the

10 things the Pollution Control Board is going to have to

determine.

First, they’re going to have to determine if

12  they even were ex parte communications. I would submit

that they are not because these individuals

were not

parties to this proceeding.

And, therefore,

they

necessarily

cannot be ex parte communications which are

discussions

of a party with a trier of fact or trier of

law outside the presence of the other party.

Regretfully

the Pollution Control Board

doesn’t necessarily

agree with me on that one point and

20 has in the past found that any communication, no matter

how trivial

and inevitable,

can be classified

ex parte.

22

The next question is whether or not it’s

23 prejudicial, and obviously we need to be able to ask

24 this individual if indeed the communications were

Page 86

anything different

than was heard during the hearing

2  that he indeed considered. And he has the ability to

3  answer that question and, therefore, should be allowed

4  to do so.

It’s also been asked and answered in numerous

6  proceedings that I have been involved in without any

concern by the PCB.

8

HEARING OFFICER HALLORAN: I am going to

9  stand on my initial 

go ahead, Mr. O’Brien.

MR. O’BRIEN:

I was only going to say what’s

11 in the record

what was in the record of the hearing

12  is a matter of record. This witness doesn’t need to

13  testify to it. On the issue of prejudice, all he’s

entitled

to testify to or competent to testify to is the

fact of the communication.

He is not supposed to be

testifying

to what occurred during the hearing, either

in my examination or in Mr. Porter’s.

HEARING OFFICER HALLORAN:

I am going to

overrule your objection and stand on my initial

ruling,

and I’ll allow Mr. Porter to ask this one question for

2.   the third time, I think.

22

MR. PORTER: Do I need to repeat it?

23 BY MR. PORTER:

Was anything that these three individuals

Page 87

walked

up to you and said different

than what you heard

2  during the hearing?

No.

Counsel mentioned some statements

that were

newspaper article that was drafted after the

Do you recall that testimony?

Yes.

And isn’t it true that during the hearing,

members of the public voiced their concerns about

compatibility

and traffic?

Yes, many.

MR. O’BRIEN:

I am going to object to that

of question as to what testimony did he hear, what

of public comment did he hear for the same reasons

objected to.

HEARING OFFICER HALLORAN:

MR. PORTER:

It’s the same

HEARING OFFICER HALLORAN:

overrule your objection,

Mr. O’Brien.

Mr. Porter.

BY MR. PORTER:

22

Do you remember the question?

23

A.  Yes. There were many comments made by the

24 public during the hearing that I heard that are a part

made in a

decision.

5

6

7

S

9

13

20

21

many

need,

type

type

I ‘ye

Mr. Porter?

response.

I am going to

You may proceed,

Page 88

of the record.

2

Q.  Was it your decision based on any 

strike

3  that.

4

(Respondent’s Exhibit No. 1

was identified.)

BY MR. PORTER:

As to the newspaper article,

you started to

B  mention this. If I may, I’d like to show you what I

9  have had marked as Respondent’s Exhibit No. 1. what is

that?

This is the article from the Florida

newspaper that Mr. Roeglin gave me.

13

Q.  And it’s the same article that was marked as

Petitioner’s

Exhibit No. 8, is that correct?

A.

Yes.

And is that a true and accurate copy of the

article that

Mr.

Roeglin gave you?

Yes, it is.

What is in the upper right-hand

corner of

20  that article?

It says, “received March 28th, 2003, Bruce

22 McKinney, City Clerk of Rochelle.”

23

Q.  And what does that indicate to you?

24

A.  It indicates to me that this is a part of the

Page 89

record that would be available

for me to read.

2

MR. PORTER: Move to admit Respondent’s

3  Exhibit No. 1.

4

HEARING OFFICER HALLORAN:

Mr. O’Brien?

5

MR. O’BRIEN: No objection.

6

HEARING OFFICER HALLORAN: Respondent’s

Exhibit No. 1 is admitted.

(Respondent’s

Exhibit No. 1 was

9

admitted into evidence.)

HEARING OFFICER HALLORAN:

Were you going to

offer your Petitioner’s

Exhibit No. 8?

12

MR. O’BRIEN: I am. Let me take back the

13  lack of any objection. Do I understand the witness to

say that this is the actual copy he got from

15

THE WITNESS: The actual copy?

MR. O’BRIEN:

You got from Roeglin?

MR. PORTER:

I’m sorry.

Are we allowing a

voir dire at this point?

MR. O’BRIEN:

I will withdraw the question.

Before I agree to the admissibility

of the article,

I’d

21  like to know the answer to that question.

22

HEARING OFFICER HALLORAN: Okay. You did

23  agree once at one time. I’m not sure what the question

24  is now.

Page 90

MR. O’BRIEN:

Really it’s more a question to

2  counsel. Is this the copy that he was given by Roeglin

are you saying?

4

MR. PORTER: No. The question that’s been

put to you is if you have any objection to the

admissibility

of this document that I just tendered?

you do, state your objection,

and I’ll respond.

8

MR. O’BRIEN: Well, if the purpose 

I just

want to know what the questIon

is.

Is he saying is this

the copy that you got from Roeglin?

MR. PORTER:

I have already asked the

12 questions that I believe lay the foundation. I have

tendered it to the Hearing Officer.

HEARING OFFICER HALLORAN:

Mr. Porter,

could

you answer Mr. O’Brien’s question?

16

MR. PORTER: I simply 

obviously, it is the

article that he received.

It has a stamp on it that was

18 put on by another individual. Is that 

MR. O’BRIEN:

Well, I don’t mean to play

games here.

I’m just saying I understood him to be

suggesting that he got a copy that had already been file

stamped by the clerk, and I obviously wouldn’t object to

23 that if that’s true. But now I’m beginning to think,

24 no, this isn’t the case; he’s just putting in a document

Page 91

that subsequently was file stamped by the clerk.

I will

2  cross-examine the witness, and I don’t object.

3

HEARING OFFICER HALLORAN: Whatever the case,

I’m going to admit it.

MR. PORTER:

Thank you.

6  BY MR. PORTER:

Counsel also brought up various statements in

your deposition

regarding whether or not you recall how

9  many people tried to talk to you after the hearing

started and before the decision.

Is it possible in your

11 deposition you were just unclear as to the dates that he

12 was referring to?

13

A.

Yes.

MR. PORTER:

Nothing further.

HEARING OFFICER HALLORAN:

Thank you.

Mr. O’Brien?

REDIRECT EXAMINATION

18

BY MR. O’BRIEN:

19

Mr. Bubik, this copy of the article, did you

20

get it 

from Roeglin when you got the article,

did you

21 get it with that stamp on it?

22

A.

No.

23

MR. O’BRIEN: Okay. That’s all I have.

24

HEARING OFFICER HALLORAN: Thank you,

Page 92

Mr. O’Brien.

Any questions,

Mr. Porter?

2

MR. PORTER: No redirect.

3

HEARING OFFICER HALLORAN: You may step down,

4  sir. Thank you very much.

MR. O’BRIEN:

I’d like to offer Exhibits 2

and 8 and 14, the video.

7

MR. PORTER: I have no objection to 8. I do

object to 14 as it’s irrelevant.

The witness testified

9  he never watched the video. And so there’s absolutely

no relevance to the video.

And as to No. 2, I also

object.

There was no foundation laid for the admission

12 of that newspaper article.

HEARING OFFICER HALLORAN:

Mr. O’Brien, would

you like to address Exhibit No. 2, please?

MR. O’BRIEN:

Exhibit No. 2, the witness has

testified

what he told the newspaper and is exactly set

forth in that article.

I showed it to him.

HEARING OFFICER HALLORAN:

I think there was

sufficient

foundation laid.

I will admit Petitioner’s

Exhibit No. 2.

Now, Mr. Porter,

the video, the Touched

By An Angel video that was received by the witness

from

22

was it Mr. Beardin?

23

MR. PORTER: Mr. Beardin. On direct

24  examination, Mr. Bubik explicitly testified he never

Page 93

watched the videotape.

So how in the world can that

possibly be relevant to an ex parts communication?

3

MR. O’BRIEN: Mr. Halloran, may I address?

4

HEARING OFFICER HALLORAN: Yes, you may,

Mr. O’Brien.

Please do.

6

MR. O’BRIEN:

I am not attempting

to show

that Mr. Bubik watched the tape.

What I’m getting to is

8  the gravity of the communication by the CCOC, and I

9

intend to examine Mr. Beardin quite thoroughly about the

tape and to suggest that despite his denials of these

various ex parte communications that he, in fact, did

make these statements and that he did it specifically

influence the Council members and that goes to the

gravity of the contacts.

And I believe that under the

liberal rules of admissibility

set forth in the PCB’s

16  general rules, the videotape should be admitted.

HEARING OFFICER HALLORAN:

Mr. Porter,

anything further?

MR. PORTER:

It doesn’t matter what

Mr. Beardin’s intent was.

The question is whether or

21 not the City Council considered an ex parte

22  communication. He didn’t. He never even looked at the

23  videotape. Irrelevant.

24

HEARING OFFICER HALLORAN: Okay. I do find

Page 94

1  it relevant since there is an issue of fundamental

2  fairness. I think it will be helpful, I don’t know, for

3  understanding of a fact of consequence in this

4

litigation.

Again, it will go to its weight, not

5  admissibility; and I will accept Petitioner’s Exhibit

6  No. 14 over objection.

(Petitioner’s

Exhibits Nos. 2, 8

8

and 14 were admitted into

9

evidence.)

MR. PORTER:

May Mr. Bubik be excused?

HEARING OFFICER HALLORAN:

Yeah.

You may

step down, sir.

Thank you.

13

(Discussion held off the record.)

HEARING OFFICER HALLORAN:

Back on the

record.

Mr. O’Brien, you wish to call your second

16 witness?

MR. O’BRIEN:

I call Mr. Roeglin.

HEARING OFFICER HALLORAN:

Just raise your

19  right hand. The court reporter will swear you in.

KENNETH C. ROEGLIN,

called as a witness herein, having been first duly

22  sworn, was examined and testified as follows:

23

DIRECT EXAMINATION

BY MR. O’BRIEN:

Page 95

Sir, would you state your full name and spell

2  your last name for the record?

3

A.  Kenneth C. Roeglin, R-o-e-g-l-i-n. Do you

4

want my address?

Yes, if you would, please.

6

A.

1113 McCall Court, Rochelle, Illinois.

And, sir, are you now or have you ever been a

B  member of the Concerned Citizens of Ogle County? I

9  should get up in front of you. I’m sorry. Are you a

member of the Concerned Citizens of Ogle County?

No, I am not.

12

Q.  Had you ever attended their meetings?

13

A.  I attended one in Creston and one at the VFW.

I’d like to show you what’s been marked

previously and admitted as Petitioner’s

Exhibit 8 which

16  is that newspaper article we have been talking about and

ask you if you did give that article

to Councilman Bubik

after the hearing and before the decision?

First,

let me say that I was gone from 2/27

to 3/25.

I am not sure of the dates of the hearing.

21 was not in town. I was on vacation.

22

Q.  So you got back to town from Florida on

23 March 25th?

24

A.  Somewhere around there, yes, sir.

Page 96

Sometime between March 25th and the decision

2  on April 24th, you gave that article to Mr. Bubik?

Yes.

Where were you when you gave that article

S  him?

In Don’s driveway.

And had you gone to his house?

Yeah.

And had you done that for the purpose of

giving him that article?

Pardon me?

Had you gone there for the purpose of giving

him that article?

Yeah, I distributed

several of them that day.

And who else did you give the article

to?

I don’t recall who all I gave them to.

Well, were the people you gave them to

Council members of the Rochelle City Council?

I can’t say I recall that.

I did give one to

Frank Beardin, I know that.

21

Q.   You gave one to Frank Beardin, and you gave

22 one to Don Bubik. You can’t remember anyone else?

23

A.  And I just don’t recall. I just thought I

24  was doing an educational factor because of the last

Page 97

statement in that article.

2

What last statement is that?

That article

4

MR. PORTER: Objection. Article speaks for

itself.

6

HEARING OFFICER HALLORAN:

He may answer if

he’s able.

8  BY MR. O’BRIEN:

9

Q.   What statement are you referring to?

“The leche through the garbage, injecting

with air and water promotes bacteria

growth, speeding up

the decay process by as much as 500 percent.

It could

13  shorten the decaying process from 30 years to 5 years.”

I thought that was an important factor.

I understand

bacteria very well.

Was your purpose of showing this article to

Mr. Bubik to get him to vote against the application?

Strictly

education.

HEARING OFFICER HALLORAN:

Excuse me.

Mr. Porter?

21

MR. PORTER: Again, I object. This is not a

22  decision-maker. His purpose in giving it is completely

23  irrelevant.

MR. O’BRIEN:

Goes to the gravity of the

Page 98

1.    contact. If you intentionally are attempting to

2  influence with an ex parte communication, that’s

3  different than doing it innocently and without such

4

intent;

and it goes to the gravity of the content.

5

HEARING OFFICER HALLORAN: Mr. Porter?

6

MR. PORTER: Well, it would be grave if the

City Council member solicited

such contact; but this

again is one of the recognized inevitable

contacts,

and

9

his intent in making the contact is irrelevant.

He is

10 not 

HEARING OFFICER HALLORAN:

I do find it

12  irrelevant, but you may ask the question under an offer

13  of proof. I sustain Mr. Porter’s objection.

14 BY MR. O’BRIEN:

Did you offer him this article

in order to

16  get Mr. Bubik to vote against the expansion?

17

A.  I’m not sure I understand. As I said before,

it was strictly

something on my part that I thought

19 would be educational to everybody that I gave it to.

Were you opposed to the expansion yourself?

21

MR. O’BRIEN: Offer of proof.

22

A.  Pardon?

23 BY MR. O’BRIEN:

24

Q.  Were you opposed to this expansion of the

Page 99

1  landfill?

2

A.  No. I had my own opinion about that.

3

That’s what I’m asking you about, your own

opinion.

Were you opposed to the expansion?

5

MR. HELSTEN: I think his opinion, if I may

6

interject,

I would object to even this part of the offer

of proof as to relevancy because I think his opinion is

not relevant unless he expressed it to the decision-

9  maker.

MR. O’BRIEN:

I can get to that under an

offer of proof.

I’m doing this under the offer of

proof.

HEARING OFFICER HALLORAN:

Yeah.

Do you want

to tag team over here, Mr. Heisten?

MR. HELSTEN:

No.

I’m sorry.

16

HEARING OFFICER HALLORAN: That’s fine.

That’s fine.

I couldn’t resist.

Mr. O’Brien, please do

proceed under an offer of proof.

19

A.

You want me 

20 BY MR. O’BRIEN:

What was your opinion?

22

A.  My opinion? I don’t know if you’re going to

23  like this or not. Let me tell you something. My

opinion is that if this Rochelle Waste Disposal would

Page 100

1  have came out to increase that landfill by 80 acres

2  instead of 360, we wouldn’t be sitting in this room here

today.

That’s my opinion.

And your opinion was that you were opposed to

5  the application to expand?

I had heard about it, okay.

I heard about

it.

I am a paper-reading

nut, okay.

You can tell why I

cut that article out.

9

Q.   And also you write letters to the editor?

Yeah.

I just wanted to help the situation.

And if I knew it was going to do this, I would have

never really cut the damn thing out.

HEARING OFFICER HALLORAN:

To make the record

clear, I still sustain Mr. Porter and Mr. Heisten’s

objection.

This is all under an offer of proof.

I find

it irrelevant.

Thank you.

BY MR. O’BRIEN:

You did write a letter to the editor of the

Rochelle News Leader, did you not?

21

A.

Yes, sir, I did that.

22

Opposing the application suggesting that

23 you 

- -

24

A.  No, I didn’t oppose it.

Page 101

MR. PORTER:

Is this still

under the offer of

2  proof? If not, I object.

3

A.

Wait a minute. That letter did not 

4

HEARING OFFICER HALLORAN:

Excuse me, sir.

THE WITNESS:

Go ahead.

6

HEARING OFFICER HALLORAN: Mr. Porter?

7

MR. PORTER: If this is still under the offer

8  of proof, that’s fine. If not, I object.

MR. O’BRIEN:

It is.

HEARING OFFICER HALLORAN:

It is still

under

an offer of proof.

Thank you.

You may proceed.

12

A.  You want to know about that letter?

13 BY MR. O’BRIEN:

14

Q.  Let me show you and see if we’re talking

about the same letter.

16

A.

Yeah, go ahead.

(Petitioner’s

Exhibit No. 4

was identified.)

BY MR. O’BRIEN:

I have an exhibit that are a series of

letters that were sent to Councilman Hann, which is

22  Petitioner’s Exhibit 4. And one of the letters in there

23  is a letter to the editor from you.

24

MR. O’BRIEN: This is Petitioner’s Exhibit 4.

Page 102

HEARING OFFICER HALLORAN:

Thank you.

2

MR. PORTER: Which letter are you referring

3  to?

4

MR. O’BRIEN:

Petitioner’s

Exhibit 4 that is

Bates stamped, and this is the page which is 12,

6  BB00012.

BY MR. O’BRIEN:

Is that the letter at the top of the page

9  that you wrote to the Rochelle News Leader?

Yeah.

“Factor omitted from landfill

discussion.”

12

Q.  And was your purpose in writing this letter

to the editor to suggest that the expansion application

should not be approved?

No, sir.

The purpose of that letter was, as

I say in here, why a total of 360 acres at this time

when the sludge and the slaughtering

at the packing

house was discontinued?

25 pounds of every hog that’s

19 killed would end up in the sludge, and I can prove that.

20

When did you write this letter?

21

A.  I wrote that letter

22

MR. PORTER: While he’s looking, Mr.

23 Halloran, I am not objecting to any of this until I hear

24 we are no longer within the offer of proof. Is that

Page 103

acceptable?

2

MR. O’BRIEN: I accept that.

3

A.

I wrote that letter on 3/28.

4

HEARING OFFICER HALLORAN:

We are still

5  the offer of proof. Continuing. Go ahead, Mr. O’Brien.

6

BY MR. O’BRIEN:

You wrote that letter

on 3/28?

Yes.

9

Q.  Or it was published on that date?

It was published on 4/1/03.

And at that time on 4/1/03 when this letter

was published,

did you personally wish that the City

Council would deny this expansion application?

For the 320 acres?

15

Q.

Yes.

Yes, sir.

That was the application?

320 acres, yes, sir.

And was your purpose then

this is also

20 under the offer of proof

in going to Mr. Bubik with

21 that Florida newspaper article to convince him to feel

22 similarly, to oppose the application that had been

23 applied?

24

A.  No, we never discussed anything like that.

Page 104

MR. O’BRIEN:

That’s all the questions

2  have.

HEARING OFFICER HALLORAN:

Thank you,

4

Mr. O’Brien. Mr. Porter?

MR. PORTER:

Thank you.

6

CROSS-EXAMINATION

BY MR. PORTER:

First,

did any City Council member discuss

9  the application with you after the application was filed

on November 22nd, 2002?

No, sir.

12

Q.  At no time did any City Council member

13  indicate any opinion to you regarding the application,

correct?

No, sir.

My statement was correct?

Yes.

As for the newspaper article,

you simply gave

19 it to Mr. Bubik, turned around and left; is that

correct?

Yes, sir.

22

Did you file that newspaper article with the

23  City of Rochelle?

I filed both of my articles

with Bruce

Page 105

McKinney, the city clerk.

2

So we’re clear, Petitioner’s Exhibit 8 was

3  indeed filed in the record; correct?

4

A.

Yes, sir.

(Respondent’s Exhibit No. 2

6

was identified.)

BY MR. PORTER:

Let me show you what I have had marked as

9

Respondent’s Exhibit No. 2.

What is that?

Respondent’s

Exhibit No. 2, what is that?

This?

12

Q.  What’s the document? What is it?

13

A.

This letter?

Yes.

Okay.

It’s a factor that I felt was left

out.

It has to do with the discontinuing

of the

slaughtering

at the Hortnel Packing Company here in

Rochelle last December.

19

Q.  Was that the letter to the editor that you

filed with the City Clerk on March 28th of 2003?

Yes.

22

Q.  And did you file on that same date the

23  newspaper article that you gave to Mr. Bubik?

Yes, sir.

Page 106

MR. PORTER:

Move for admission of

2  Respondent’s Exhibit No. 2.

3

MR. O’BRIEN: No objection.

4

HEARING OFFICER HALLORAN: Respondent’s

Exhibit No. 2 admitted.

6

(Respondent’s Exhibit No. 2 was

7

admitted into evidence.)

8  BY MR. PORTER:

9

Q.  In the upper corner of Respondent’s Exhibit

No. 2 is the City Clerk’s stamp, is that right?

Say that again.

12

At the upper corner of the exhibit you have

13  in your hand there, there’s a stamp from the City Clerk

14  saying it was received March 28th; is that right?

Oh, yeah, the stamp; right.

When you gave the article

to Mr. Bubik, did

he at any time discuss with you the landfill?

18

A.

No.

MR. PORTER:

Nothing further

20

HEARING OFFICER HALLORAN: Thank you,

21  Mr. Porter. Mr. O’Brien?

22

MR. O’BRIEN: No further questions.

23

HEARING OFFICER HALLORAN: Thank you. You

may step down, sir.

Page 107

MR. O’BRIEN:

Call Councilmen Ed Kissick.

2

HEARING OFFICER HALLORAN: Step up and raise

3  your right hand, and Tracy will swear you in.

EDWIN 0. KISSICK,

5  called as a witness herein, having been first duly

6

sworn, was examined and testified

as follows:

DIRECT EXAMINATION

BY MR. O’BRIEN:

Sir, would you state your full name and spell

your last name for the record?

Edwin Dennis Kissick, K-i-s-s-i-c-k.

12

And where do you live, Mr. Cissick?

1237 Finney Court, Rochelle.

Are you presently on the City Council of

Rochelle city?

Yes, I am.

When were you first elected or appointed to

the Rochelle City Council?

I believe we were sworn in May 1st of 2001, I

20 believe.

Was that the same election in which there was

22 a referendum 

advisory referendum on the landfill

23  expansion on the ballot?

24

A.  I thought it was before that.

Page lOS

So you don’t recall that it was the same

2  election?

3

A.

No.

4

Q.  Were you endorsed by the CCOC at the time of

your election in April of 2001?

6

A.

Yes.

And do you consider that that endorsement was

8  helpful to your election?

9

A.

No

I don’t know. I couldn’t answer that.

I’m unsure.

11

HEARING OFFICER HALLORAN: After lunch, maybe

12 we can situate your desk so it’s over farther.

13

MR. O’BRIEN: Good idea.

14

(Petitioner’s Exhibit No. S

15

was identified.)

16 BY MR. O’BRIEN:

I show you Petitioner’s

Exhibit 5 which is a

double-sided

election brochure.

Do you recall seeing a

brochure like this at the time of your election?

20

A.

No, I don’t.

21

You have never seen this?

22

A.  I don’t recall ever seeing it.

23

Q.  Do you know if at the time of your election

24 that there were brochures passed out both endorsing you

Page 109

and Councilman Colwill and also endorsing the passage of

2  the referendum against the landfill expansion? Do you

3  recall that?

4

A.

No, I don’t.

(Petitioner’s

Exhibit No. 6

6

was identified.)

7

MR. PORTER:

What did you mark that as?

8

MR. O’BRIEN: They’re all marked six.

BY MR. O’BRIEN:

This is Petitioner’s

Exhibit 6, show you a

newspaper article

from the Rochelle News Leader right

12 after your election in April of 2001, and I realize it’s

13 a little bit difficult to read; but do you remember

14 telling a newspaper reporter immediately after your

election that you definitely

thought that the CCOC

support played a part in your election?

MR. PORTER:

Objection,

irrelevant.

HEARING OFFICER HALLORAN:

Mr. O’Brien?

19

MR. O’BRIEN: I think that it’s relevant if

20 he was in effect elected and endorsed by the CCOC.

21

HEARING OFFICER HALLORAN: You know, I think

22  it could be relevant if we’re talking about fundamental

23  fairness. He may answer. Objection overruled.

BY MR. O’BRIEN:

Page 110

Do you remember saying to the newspaper

2  reporter what you’re quoted as saying there that you

3  felt it definitely played a part in your election?

I do not remember saying that.

5

Q.   Did you say anything like that to the

6

reporter?

It seems to me that I got a phone call about

10:30, quarter to 11:00, after the election from maybe

9  Dixon and the Rochelle newspaper. I was in bed, and I

was half asleep; and I honestly do not remember what the

questions were asked or what answers that I answered.

12

Do you now feel that your election was

13  assisted by the support you received from the CCOC?

MR. PORTER:

Objection,

asked and answered.

He’s already said he didn’t know.

HEARING OFFICER HALLORAN:

I have heard it

asked once before.

Sustained.

MR. O’BRIEN:

Okay.

Withdraw the question.

BY MR. O’BRIEN:

20

Mr. Kissick, after the application was filed

21  in November, how many times did Frank Beardin, the

22 president of the CCOC, contact you to express his

23  opposition to the landfill application?

24

A.

I believe after that point, that date, that I

Page 11!

had instructed

my secretary

to let me know who was

2  calling and not take any calls after that date.

3

Mr. Kissick, do you remember providing

4  interrogatory answers to Mr. Porter?

5

A.

Yes, sir.

6

Do you remember that in your interrogatory

7

answers 

the interrogatory

was to the effect how many

times were you contacted after the application was filed

9

before the decision, and that you said that Beardin had

10 contacted you on approximately half a dozen occasions?

I don’t remember the exact date, but

The question is:

Do you recall saying that

to Mr. Porter so that it would be recorded in the

interrogatory

answers?

MR. PORTER:

I object.

If he’s going to

phrase the question what he said to me, there’s another

way to go about that without invading the attorney!

client privilege.

MR. O’BRIEN:

What he said to the attorney in

order to pass to the interrogatories

is not privileged.

It’s for the purpose of disclosure,

not non-disclosure.

HEARING OFFICER HALLORAN:

Mr. Porter?

MR. O’BRIEN:

I would still prefer the

question be asked a different

way.

Page 112

HEARING OFFICER HALLORAN:

If you would

2  rephrase it, I tend to agree with Mr. Porter if you can

3  restate the question.

4

MR. O’BRIEN: Well, to rephrase it, I’m not

sure how I would do that.

6  BY MR. O’BRIEN:

7

What I want to know is did you tell

Mr. Porter when he asked you that same question that

Beardin had contacted you six times after the

application

was filed to express his opposition?

Did

you say that, Mr. Kissick?

You don’t have to look at

Mr. Porter for that answer.

MR. PORTER:

Objection.

HEARING OFFICER HALLORAN:

Sustained.

I don’t remember the exact date that I gave

my secretary

BY MR. O’BRIEN:

I am not asking that question.

19

A.

Okay. So without remembering 

20

Q.

Did you tell Mr. Porter 

Yes.

22

MR. PORTER: I’d object here.

23

HEARING OFFICER HALLORAN: Excuse me.

24 Mr. Porter?

Page 113

MR. PORTER:

I think he needs to allow the

2  witness to complete his answer.

3

HEARING OFFICER HALLORAN: I agree.

4

Mr. O’Brien, you’re interjecting while Mr. Kissick is

trying to explain.

Go ahead, Mr. Kissick.

6

A.  I don’t remember the exact date that I

instructed my secretary not to take any more calls from

Mr. Beardin or anybody else regarding the landfill

issues.

I don’t remember that exact date, but I did

give her those instructions

not to send any calls to my

office or give out my cell phone.

MR. O’BRIEN:

Excuse me, your Honor.

HEARING OFFICER HALLORAN:

Sure.

Mr. O’Brien, before I forget,

your Petitioner’s

Exhibit

No. 6, you know, I have these cheap, Walgreen’s reading

glasses, but I still

can’t

I am having a hard time

reading exactly what is highlighted

here.

And I have no

idea what date this article

came out, in April of

something, you stated.

April, 2001.

20

MR. O’BRIEN: It’s shortly after the

election.

I don’t know the date either.

I am not

22  seeing it on the document.

23

HEARING OFFICER HALLORAN: Is there going to

24 be a clearer copy submitted to the Board?

Page 114

MR. O’BRIEN:

I will try to do that.

I will

try to get a better copy.

3

HEARING OFFICER HALLORAN: You may proceed.

4

Thanks.

5

(Petitioner’s Exhibit No. 1

6

was identified.)

BY MR. O’BRIEN:

Okay.

I’d like to show you first of all

9 Exhibit

1 I believe it is. Specifically it’s your

10 answer to the interrogatory who contacted you after the

application

was filed and before the decision.

This is

12  Petitioner’s Exhibit 1. This is the City’s sworn

interrogatory

response.

And on the second page under

your name and response to the question,

would you read

into the record the answer that was given on your

behalf?

MR. PORTER:

Well, I guess I have to object.

This is a hearsay statement he is just reading into the

19  record.

20

MR. O’BRIEN: This is his interrogatory

answer.

It’s not hearsay.

22

MR. PORTER: Right. It’s discovery, and it’s

23  a hearsay statement. The witness is on the stand. If

24 you want to ask him the question that’s been referenced

Page 115

in the discovery,

you can do so; but I don’t know what’s

2  the authority for filing discovery 

3

MR. O’BRIEN: It’s a prior inconsistent

statement which he said that he

MR. PORTER:

So the purpose of it is

6  impeachment. At least I understand the purpose. Go

ahead and ask the question.

HEARING OFFICER HALLORAN:

Go ahead.

9  Proceed, Mr. O’Brien.

BY MR. O’BRIEN:

would you read into the record your answer to

12 the sworn interrogatory?

13

A,  “Mr. Kissick received several correspondences

from individuals

indicating

their opposition to the

landfill.

These correspondences

were primarily form

16  letters, and all such correspondences were discarded.

Frank Beardin telephoned Mr. Kissick in Mr. Kissick’s

18 office on approximately one-half dozen occasions after

the filing of the application

and before the decision

20 was rendered, and on these occasions Mr. Kissick would

21  inform Mr. Beardin that Mr. Kissick was not at liberty

22 to discuss the pending application.”

23

Q.  And was that interrogatory answer on your

24 behalf true?

Page 116

With the exception of the dates that I don’t

2  remember, the dates that I instructed my secretary not

3  to take any more calls.

4

Q.  But the interrogatory answer says after the

application

was filed, he contacted you six times; that

6

was true?

MR. PORTER:

I object.

He just got done

saying except for the dates, the rest was true.

MR. O’BRIEN:

I am asking

the question is

very clear about it.

It didn’t ask anything about

things that happened before the application

was filed.

12

HEARING OFFICER HALLORAN: Objection

13  overruled. He may answer if he is able.

Yes, it appears to reflect that in this

paragraph.

BY MR. O’BRIEN:

That paragraph is true?

That paragraph is what we talked about during

the deposition.

We didn’t talk

I did not bring up

20  any dates regarding my secretary and when to take calls

and when not to take calls.

And in the deposition when I asked you about

23  the interrogatory responses, this would be Page 20, Line

2 of this deposition

you don’t have it, Mr. Kissick.

Page 117

I asked you

and you were under oath in

2  your deposition, right? You were sworn?

3

A.

Yes, sir.

4

And I asked you, “Now, you say in the

5  interrogatory response that after the application was

6  filed, you received about half a dozen phone calls from

Frank Beardin”; and you answered yes.

Do you recall

8  that?

9

A.

Yes.

10

0.

And so 

and do you remember that I asked

you this question.

This is Page 21, Line 15, “And he

12 called you about six times?” And your answer was,

13  “Probably once a week maybe, give or take.” Do you

remember that?

Yes.

And in the very first conversation you told

him that you couldn’t talk to him about the application,

lB is that correct?

Yes.

But he called you nevertheless

again and

again after that, is that not correct?

22

A.

I don’t remember how many times, but he

23 called several times; and I told him that 

I was not at

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Page 119

No.

I’m talking about after the application.

No.

No, other than to say, no, I can’t talk

to you.

And I don’t remember what that date was when I

instructed

my secretary not to take any more calls.

But you remembered in your interrogatory

6  answer and you remembered in your deposition that that

date was after the application

was filed, did you not?

I don’t remember what date that I told my

9  secretary not to take any more phone calls; but any time

10 Mr. Beardin called, whether it was after the application

was filed,

the answer was I cannot talk to you regarding

12  this issue.

MR. O’BRIEN:

No further questions.

HEARING OFFICER HALLORAN:

Thank you,

Mr. O’Brien.

Mr. Porter.

CROSS-EXAMINATION

BY MR. PORTER:

In hindsight regarding the interrogatory

answers and the deposition

response regarding the

20  interrogatory answers, were you unclear at the time we

answered the interrogatories

as to what dates

22 Mr. Beardin called you?

23

MR. O’BRIEN: Objection, leading.

24

HEARING OFFICER HALLORAN: Overruled. He may

Page 120

1  answer if he is able.

2

A.  Prom the start to the stop of those phone

3  calls, I am not sure of the date when I instructed my

secretary not to take any more calls.

5  BY NR. PORTER:

6

So if the interrogatory answers indicate that

7  it was between those dates that he called, that could be

8  in error; correct?

9

Correct.

Now, regardless,

when Mr. Beardin would call,

would you discuss the application

with him?

12

A.

No, sir.

Did you keep an open mind throughout the

hearing process?

Yes.

MR. O’BRIEN:

Objection,

for the same reason.

HEARING OFFICER HALLORAN:

Go ahead,

Mr. O’Brien.

19

MR. O’BRIEN: I want to object for the same

20  reason that I have submitted this brief. I don’t think

21  that it’s appropriate for the decision-makers to testify

22 to their mental process. I think more than it is 

23

HEARING OFFICER HALLORAN: I agree.

Objection sustained.

Page UI

MR. PORTER:

As an offer of proof?

2

HEARING OFFICER HALLORAN: As an offer of

3  proof.

BY MR. PORTER:

Did you keep an open mind throughout the

6  hearing process?

7

A.

Yes, sir.

Same offer of proof.

Did you do your best to

9  impartially weigh the evidence?

Yes, sir.

HEARING OFFICER HALLORAN:

Your objection

12 noted, Mr. O’Brien. This is an offer of proof.

13

MR. O’BRIEN: I assume I have a standing

objection.

HEARING OFFICER HALLORAN:

Thanks.

BY

MR. PORTER:

Counsel brought up the CCOC endorsement early

on in your questioning.

Do you recall that?

19

A.

Yes, sir.

20

Q.  And at any time did you voice to the CCOC

that you were going to vote one way or the other?

22

A.

No.

At any time did you agree to exchange your

vote in exchange for a CCOC endorsement?

Page 122

1

A.

No, sir.

2

Q.  In opening statement, counsel brought up a

3  newspaper article in which you referenced that your job

was to listen to the public.

What did you mean by that?

MR. O’BRIEN:

Objection.

This is all within

6

the offer proof?

Otherwise I will object.

7

HEARING OFFICER HALLORAN: No. Your

8  objection. Please, state your objection for the record.

9  This is not under an offer of proof.

MR. PORTER:

No.

When I was under the offer

of proof, I explicitly

indicated when I was under the

12 offer of proof.

13

HEARING OFFICER HALLORAN: That was my

14 understanding. Mr. O’Brien, your objection to his last

question?

And before we begin, can you read the last

question back, Tracy?

(The record was read.)

MR. O’BRIEN: My objection

is that although

his out-of-court

post-decisional

statements about the

20  decision are admissable, his in-court statements as to

21 his mental processes are not. And I rely on the brief

22 that I submitted.

23

HEARING OFFICER HALLORAN: Objection

24 overruled. You may answer if you’re able.

Page 123

To listen to all the pros and cons and to

2  keep an open mind, people that were for it, people that

3  were against it prior to the filing of the application,

to keep an open mind.

BY MR. PORTER:

6

Q.  And at the hearing, the public voiced

7  opposition; is that correct?

8

A.

Yes, sir.

At any time did you consider anything you

10 heard outside of the hearing process as evidence for the

hearing?

12

HEARING OFFICER HALLORAN: Mr. O’Brien?

13

MR. O’BRIEN: I do object to that. Mental

process, if he’s asking that substantively,

I certainly

object to that question.

16

HEARING OFFICER HALLORAN: Mr. Porter?

MR. PORTER:

I think this is different.

Now

I’m asking if he actually considered anything outside of

the hearing as evidence,

and it’s not

I’m not asking

for his mental process in coming to a decision.

21

MR. O’BRIEN: What he means is as evidence,

in other words, did he consider it?

Did it influence

23 me? Did I take it into consideration? It’s all the

24  same thing, and I think he is coming in through the back

Page 124

door.

It’s the same objection.

2

MR. PORTER: Well, no. If it’s evidence, it

3  may not impact your decision whatsoever; but you might

believe that it was evidence, and that’s what my

question is.

Did he believe that anything stated

6

outside of the hearing process was evidence?

MR. O’BRIEN:

That goes right to his mental

process, and I object.

MR. PORTER:

I think I’ve stated my position.

10

HEARING OFFICER HALLORAN: You know, I don’t

think it goes to his mental processes.

He may answer if

he is able.

13

A.

No, sir.

MR. PORTER:

Nothing further.

Thank you.

HEARING OFFICER HALLORAN:

Mr. O’Brien?

MR. O’BRIEN:

Nothing further.

HEARING OFFICER HALLORAN:

You may step down,

Mr. Kissick.

Thank you.

Let’s go off the record for a

19 second.

(Discussion held off the record.)

21

HEARING OFFICER HALLORAN: We will back here

22 at 12:35. Thank you very much.

23

(A lunch recess was taken from

24

11:35 a.m. to 12:35 p.m.)

Page 125

(The proceedings

resumed at

2

12:36 p.m.)

3

HEARING OFFICER HALLORAN: Good afternoon,

everybody.

It’s approximately 12:40.

We have some

members of the local high school here; there are three

6

of them. Ladies and gentleman could you state your name

for the court reporter,

please, and spell it?

B

MS. STOUFFER: I am Lindsey Stouffer.

9

HEARING OFFICER HALLORAN: And your spelling?

10

MS. STOUFFER: L-i-n-d-s-e-y S-t-o-u-f-f-e-r.

HEARING OFFICER HALLORAN:

Thank you.

Sir?

12

MR. CARMICHAEL: I am Grant Carmichael,

13  G-r-a-n-t C-a-r-m-i-c-h-a-e-l.

14

HEARING OFFICER HALLORAN: Thank you.

MS. NORKUS:

Alison Norkus, A-l-i-s-o-n

16 N-o-r-k-u-s.

HEARING OFFICER HALLORAN:

Thank you.

And

they were going to show

I have in my possession

a DVD

19 which is in the record of the record below; however,

20 they decided to offer it as an exhibit, and I’m taking

21  it as Hearing Officer Exhibit No. 3. And they have

22 elected not to expound on the DVD or make any public

23  statements. They stated that pretty much what they have

24 to say they said down at the local siting hearing. Is

Page 126

that my understanding?

2

MR. CARMICHAEL: Correct.

3

(Hearing Officer Exhibit No. 3

4

was identified.)

HEARING OFFICER HALLORAN:

I see nods.

6

any event, thank you very much. You can stick around

and stay and watch the fun or go back to school.

Thank

you very much.

Mr. O’Brien?

Off the record for a

9  second.

(Discussion held off the record.)

HEARING OFFICER HALLORAN:

All right.

We are

12  back on the record. Mr. O’Brien.

MR. O’BRIEN:

I was going to call Councilman

Colwill as if on cross.

HEARING OFFICER HALLORAN:

Raise your right

16 hand, and Tracy will swear you in, please.

17

WENDELL COLWILL,

called as a witness herein, having been first duly

sworn, was examined and testified

as follows:

DIRECT EXAMINATION

BY MR. O’BRIEN:

22

Sir, would you state your full name and spell

23 your last name for the record?

Wendell, I’m going to spell that, too,

Page 127

because nobody spells it right,

W-e-n-d-e-l-l,

Colwill,

2  C-o-l-w-i-l-l.

3

Nickname Al?

4

That’s correct.

S

And where do you live,

Mr. Coiwill?

6

A.

1221 Springdale Drive, Rochelle.

And when were you first

elected to the

Rochelle City Council?

9

I took office May 1st, 2001.

And are you still

a member of the council?

Yes, sir.

And did you get elected in the same election

in 2001 when the advisory referendum was on the ballot

regarding the expansion of the landfill?

I believe it was, yes.

16

Were you endorsed by the CCOC in connection

with that election?

No, not that I’m aware of.

Did you ever see any fliers

during the

campaign that endorsed both the non-expansion

of the

21  landfill as well as your candidacy?

22

A.

No.

23

After the application

was filed,

is it

24  correct that you were contacted by the president of 

Page 128

the application

was filed November 22nd, 2002.

After

2  that application was filed, is it correct that you were

3  contacted on two occasions by the president of the CCOC,

4  Frank Beardin, to express his opposition to the

expansion?

6

I believe I stated before that it’s possible.

I don’t recall what dates or when he did contact me, but

8  that’s possible.

Do you recall being deposed in this case?

Yes.

And that took place on September 2nd?

I would assume so.

13

Do you recall me asking you this question and

you giving this answer:

“After the application

was

15 filed in November

on November 22nd, 2002, the

application

for the expansion, after that was filed, did

you ever speak to Frank Beardin about the proposed

expansion or the application?”

And your answer was,

19  “Yeah, he called me a couple of times. I let him talk,

20 but I never expressed an opinion.”

21

MR. PORTER: Page and line, Counsel?

22

MR. O’BRIEN: That’s 11, Line 1.

23  BY MR. O’BRIEN:

Do you now recall that you

Page 129

Yes, I do remember saying that; yes.

2

And I asked you a question,

“And this was

3  after the application was filed?” And your answer was,

“Yes.”

Do you remember that?

Yes.

6

And are you saying that your recollection

would be better today than it was back in September?

8

A.

Sir, I don’t keep a record of people that

9  contact me or dates or what was said or who was 

I do

10 not keep a record of that.

Mr. Colwill, you knew that after the

12 application was filed you weren’t supposed to be talking

to people outside the record; right?

14

A.  Any time anybody would talk to me, I would

15  state that I could not speak of it because I was on the

16  siting committee.

And you knew that that was true after the

application

once the application

had been filed?

That’s correct.

20

Q.  So that’s what you told Mr. Beardin on the

21 occasions that he contacted you after the application

22 was filed?

23

A.

Yes.

24

Q.  Did other people approach you after the

Page 130

application

was filed to express their opposition to the

2  landfill?

3

A.

All kinds of people.

Many people?

Many people.

6

Were any of them members of the CCOC?

Very possible.

And approximately how many times did this

9  happen after the application was filed?

10

A.

I wouldn’t have a clue.

Was it in the hundreds that people contacted?

12

A.  I wouldn’t know.

13

Q.  Could have been as many as 100 

I do not keep a record, sir, of who contacted

me, so I do not know.

But you know it was more than just few times,

it was hundreds of people?

I will tell you this:

I was campaigning for

mayor at that time.

I was ringing doorbells.

People

20 would ask me how I stood on the landfill, and I told

them I could not comment because I was on the siting

22  committee.

23

Q.  Did they, nevertheless, go ahead and express

24  their opinions to you?

Page 131

1

A.

Some of them did.

2

Did Mr. Beardin come to you during the

3  hearing and offer you a copy of his Touched By An Angel

4  video?

No.

6

Had you ever heard of that before?

I haven’t heard of it, no.

I didn’t know

8  about it until you mentioned it today.

9

MR. O’BRIEN: That’s all the questions I

have.

11

HEARING OFFICER HALLORAN: Thank you,

12 Mr. O’Brien. Mr. Porter?

CROSS-EXAMINATION

BY MR. PORTER:

When you were campaigning for mayor, people

would blurt out their opinion to you; is that correct?

At times, yes.

Did you tell those people you couldn’t

19 discuss the landfill?

20

A.  That’s correct.

21

You did not believe that those inevitable

22  statements by people while you were on the campaign

23  trail was evidence, did you?

24

MR. O’BRIEN: I would object to that

Page 132

1  question. Same reason I stated previously.

2

HEARING OFFICER HALLORAN: I’m sorry. Could

3  you read the question back, Tracy?

4

(The record was read.)

HEARING OFFICER HALLORAN:

Your objection?

6

MR. O’BRIEN:

My objection

is that goes to

his mental process, what he considered evidence.

8  don’t think that he should be permitted to testify to

9  that, but I made my record.

HEARING OFFICER HALLORAN:

Mr. Porter?

MR. PORTER:

It’s the same argument we had

12  before, which I believe was overruled. It’s not his

13  mental process. It’s as to how he came to his decision,

and it’s not deliberative

process.

It’s rather what he

understood to be evidence at the hearing.

16

HEARING OFFICER HALLORAN: I’ll allow him to

17  answer if he’s able. Objection overruled.

I did not allow that to influence my

19 decision.

MR. O’BRIEN:

Object to his answer as

21 nonresponsive, ask that it be stricken.

22

HEARING OFFICER HALLORAN: Would you qualify?

23

MR. O’BRIEN: Well, he’s now attempted to go

right to the heart of the issue and say it didn’t

Page 133

influence him, and that clearly is inadmissible.

It’s a

2  subtle difference. I think it’s somewhat subtle as to

3  whether he considered an ex parte communication evidence

or not that perhaps implies that it didn’t influence

him, but I think his answer is nonresponsive.

6

HEARING OFFICER HALLORAN:

All right.

The

answer is stricken.

Mr. Porter, will you ask the

question again, please?

9

MR. PORTER: Right. So the record is clear,

I believe that the answer was appropriate

and would ask

that it be allowed as an offer of proof.

And then I

will ask the question again if that’s allowed.

13

HEARING OFFICER HALLORAN: Okay. The

objection is sustained.

I’ll allow it as an offer of

proof.

Mr. Porter, proceed.

BY MR. PORTER:

Did you believe that the statement

strike

that.

I am not asking you at the present time

whether or not the statements influenced you.

What I am

21 asking you is if you thought those statements that were

22 made while you were on the campaign trail were evidence

23 to be considered at the hearing?

24

MR. O’BRIEN: Restate the same objection.

Page 134

HEARING OFFICER HALLORAN:

Overruled.

THE WITNESS:

Should I answer?

HEARING OFFICER HALLORAN:

Yes, you may.

4

The answer was no.

BY MR. PORTER:

6

Did you send to the City Clerk some form

7  letters that were sent to you at your home?

8

A.  I believe I turned over the first one. After

9  that, they were repetitive, and I threw them away.

Now, when you were on the campaign trail and

people would blurt out their opinion regarding whether

12  or not they wanted a landfill in Rochelle, were those

statements any different

than what you heard during the

hearing?

MR. O’BRIEN:

Objection,

same reasons I

stated.

HEARING OFFICER HALLORAN:

Overruled.

You

may answer.

Okay.

You’re talking about public

statements,

sir?

21 BY MR. PORTER:

Right.

Well, strike that.

Let me lay some

23  foundation. Some public statements were made at the

39.2 hearing that was held here, correct?

Page

135

1

A.

Yes.

And--

Well, not here, the siting hearing up in

I’m sorry; you’re right.

The siting hearing

was at a hotel?

6

Yeah.

Were the statements

that were made to you

while you were on the campaign trail by members of the

public about their feelings regarding a landfill

any

different

than the public statements that you heard that

were admitted at the hearing?

They were in the same tone.

MR. O’BRIEN:

I do have a standing objection

if that’s the question.

HEARING OFFICER HALLORAN:

The record will so

note.

BY MR. PORTER:

At any time did you ever agree to vote

against the landfill

in exchange for endorsement by the

20 CCOC?

21

A.

No, I did not.

22

Was your decision grounded upon the Section

23 39.2 criteria?

24

MR. O’BRIEN: Objection.

Page 136

HEARING OFFICER HALLORAN:

Mr. Porter?

I’m

2  sorry; let me hear your objection, Mr. O’Brien.

3

MR. O’BRIEN: That asks him what was the

basis for his opinion.

HEARING OFFICER HALLORAN:

Mr. Porter?

6

MR. PORTER: Again it gets to whether or not

7  he considered evidence outside of the record.

8

HEARING OFFICER HALLORAN: I sustain the

9  objection.

MR. PORTER:

And I’d, if I may, let him

answer as an offer of proof.

12

HEARING OFFICER HALLORAN: The witness may

13  answer as an offer of proof.

14

A.  Okay. Repeat the question for me, please.

15 BY MR. PORTER:

16

Did you base your decision on anything

outside of the record?

18

A.

No.

MR. PORTER:

Nothing further.

HEARING OFFICER HALLORAN:

That wasn’t the

question before, but that’s

22

MR. PORTER: I assumed that it would have the

23  same objection. Let me 

am I correct on that,

24 Mr. O’Brien?

Page 137

MR. O’BRIEN:

Sure, I’d object to that, too.

2

MR. PORTER: Would the ruling have been the

3  same?

HEARING OFFICER HALLORAN:

The ruling would

have been the same.

6

MR. PORTER:

So that was an offer of proof.

HEARING OFFICER HALLORAN:

Mr. O’Brien?

MR. O’BRIEN:

I have no further questions.

9

HEARING OFFICER HALLORAN: Thank you. You

may step down, sir.

11

MR. O’BRIEN: I call Alan Hann.

12

HEARING OFFICER HALLORAN: Would you raise

13  your right hand, and the court reporter will swear you

in, please.

15

ALAN HANN,

called as a witness herein, having been first duly

sworn, was examined and testified

as follows:

DIRECT EXAMINATION

19

BY MR. O’BRIEN:

Sir, would you state your full name and spell

21  your last name for the record, please?

22

A.  Alan Theodore Hann, last name H-a-n-n.

23

Q.  And where do you live, sir?

24

A.

1225 Crest Lane, Rochelle.

Page 138

1

And are you presently on the City Council?

No.

And when did you leave the City Council?

4

A.

May 1st of ‘03.

And when were you first appointed or elected

6

to the City Council?

May 1st of ‘96, I think, or ‘95.

‘95.

And were you elected at that time to the

office?

Yes.

I’d like to show you what’s been marked

Petitioner’s

Exhibit 4 and ask you if these are letters

that you received from citizens before, during and after

the hearing?

HEARING OFFICER HALLORAN:

Mr. O’Brien,

think I already have this.

MR. O’BRIEN:

Do you have 4?

HEARING OFFICER HALLORAN:

Yeah, it’s been

sitting up here a while.

MR. O’BRIEN:

Do you have 4?

21

MR. PORTER: I have a copy.

22

A.

Yes, these appear to be that. I don’t

23  recognize all of them because I didn’t open all of them.

BY MR. O’BRIEN:

Page 139

In essence, there was a request to produce

2  any documents that you had received from citizens, and

3  you provided a stack of these letters to Mr. Porter?

4

A.  That’s correct.

5

Q.  And you received these after the application

6

was filed and before the hearing, during the hearing and

after the hearing, is that correct,

as indicated by

8  their postmarks?

9

A.

Correct.

And are you aware whether other City Council

members also received these letters?

12

A.

No, I am not aware.

13

Q.  You don’t know one way or the other. And do

you know what organization

in town arranged for this

15 letter writing campaign that resulted in all these

16  letters coming to you?

Yes.

18

Q.  And who was that?

19

A.  The CCOC.

20

And how do you know that?

21

A.  A lot of the letters were just form letters

22 and just with signatures.

23

And do you know these people to be members of

24  the CCOC from your conversations with them?

Page 140

No.

2

Q.   During the hearing, did 

you know who Frank

3  Beardin is?

4

A.

Yes.

5

Q.

President of the CCOC?

6

A.

Yes.

During the hearing,

did he come to you and

8  offer you a videotape of a television program called

9  Touched By An Angel?

Yes, he did.

When did he do that?

12

A.

I don’t recall the exact date, but I’m 

13  think it was before the hearing.

Well, if I tell you that the hearing took

place on February 24th through 27th and that there was

16 then a recess over the weekend of March 1st and 2nd and

then it resumed on the 3rd and concluded on the 4th of

18 March, does that refresh your recollection that he came

to you on a Sunday, March 2nd, and brought you the

20 videotape of the program that had aired the night

21 before?

22

A.

It was on a Sunday that he came, but I don’t

23  remember the date.

24

Did he come to your house?

Page 141

Yes.

2

Was it during the day or at night?

3

A.

It was during the day.

4

During the day.

And did he come to your

door, or did you meet him in the driveway?

6

He came to the door.

7

Q.  And what did he say to you?

8

A.  He said he had a tape he wanted me to see,

and I said

I told him no, I

he told me it was the

Touched By An Angel program, and I told him I probably

already seen it.

I have seen it because I watch the

program, but I really hadn’t seen it.

So did you take the videotape from him?

No.

Did he tell you anything about the program?

No.

Did he say whether it was relevant to the

landfill hearings?

No, he didn’t.

Did he say anything that led you to believe

that this had anything to do with the landfill

hearings?

Well, he said it was interesting,

that I’d be

interested

in it is all.

Did that lead you to believe that it had to

Page 142

do something with the hearings that you were in the

midst of?

Yeah, so I didn’t accept it.

Did he express any disappointment

to you that

you wouldn’t take his video?

6

No.

Did he say anything else to you?

No.

MR. O’BRIEN: That’s all the questions

have.

HEARING OFFICER HALLORAN:

Thank you,

Mr. O’Brien.

Mr. Porter?

CROSS-EXAMINATION

BY MR. PORTER:

The letters

that were sent to you, they were

sent to you at your house, is that right?

That’s correct.

And you did not consider those letters

to be

evidence admitted at the hearing, did you?

MR. O’BRIEN:

Objection,

not restated,

but

same objection that I’ve made.

HEARING OFFICER HALLORAN:

You know, he may

answer if he’s able.

No, I did not consider them.

Page 143

BY MR. PORTER:

And you never watched the videotape?

No.

As a matter of fact, you never even took the

videotape?

6

No.

MR. PORTER:

Nothing further.

HEARING OFFICER HALLORAN:

Thank you.

MR. O’BRIEN:

No further questions.

HEARING OFFICER HALLORAN:

Sir, you may step

down.

Thank you very much.

MR. O’BRIEN:

I’d like to offer 4 which are

the letters that he received from the citizens.

HEARING OFFICER HALLORAN:

Mr. Porter?

MR. PORTER:

No objection.

HEARING OFFICER HALLORAN:

Thank you.

Petitioner’s

Exhibit No. 4 is admitted into evidence.

(Petitioner’s

Exhibit No. 4 was

admitted into evidence.)

HEARING OFFICER HALLORAN:

Before you call

your next witness, Mr. O’Brien, I just want to take a

moment.

Does any member of the public out there need to

come up and make their statement or comments now, or do

you want to wait a while?

Raise your hand if you want

Page 144

to come up now.

I see no hands, so we can proceed.

MR. O’BRIEN:

I call

oh, I’m not sure that

I did.

Is Mr. Mueller here yet?

I was not going to

call Mr. Beardin until Mr. Mueller got here.

Mr. Mueller represents

the CCOC and said he wouldn’t be

6  able to be here until about 1:00. I guess I would

call

if I could have about a five-minute recess,

I’d

call John Holmstrom as my next witness.

I wasn’t

9

anticipating

getting to him quite this quickly.

HEARING OFFICER HALLORAN:

Five minutes.

Of f

the record.

(A brief recess was taken.)

HEARING OFFICER HALLORAN:

We are about

ready.

We are going to go back on the record now.

took a short, five-minute break.

Mr. O’Brien?

MR. O’BRIEN:

Call Mr. John O’Brien as my

next witness.

HEARING OFFICER HALLORAN:

Raise your right

hand, and Tracy will swear you in, please.

JOHN O’BRIEN,

called as a witness herein, having been first duly

sworn, was examined and testified

as follows:

DIRECT EXAMINATION

BY MR. O’BRIEN:

Page

245

Sir, would you state your full name and spell

your last name for the record?

John O’Brien, O’B-r-i-e-n,

just like yours.

Where do you live?

10282 Kite Road, Rochelle, Illinois.

6

After the application

was filed in November

and before the City Council rendered a decision on the

landfill

siting application,

did you express your

opinion to any City Council members on the proposed

landfill

siting application

outside the hearing?

Outside the hearing, yes.

To whom did you do that?

I believe I expressed my opinion maybe to

Mr. Colwill and Mr. Bubik.

How about Mr. Hann?

It could very well have been, yes.

Now, did you speak to any of these gentlemen

during the hearing itself?

Well, I may have.

You know, if I would have

known that we were going to have these kind of things, I

would have wrote all this down.

Just tell us your best recollection.

My best recollection

is I may have, yes.

And so during

while the hearing was in

Page 146

progress,

you spoke to which of these City Council

members?

I believe Mr. Bubik.

Where were you when you had that

conversation?

6

A.

I believe it was on the phone.

On the phone.

And did you call him, or did

he call you?

I believe I may have called him.

And was this while the hearing was in

progress?

I don’t remember that.

And what was your purpose in calling him?

Well, I wanted to express my views on the

landfill

decision that was going to be made.

And what were your views?

My views were that the application

was a poor

application,

and it shouldn’t be passed.

And did you call Mr. Bubik and say that?

Yes.

And tell me what the conversation

was between

you and Mr. Bubik.

It was

it really wasn’t much of a

conversation.

It was me just expressing my views to him

Page 147

with the understanding

that I knew he couldn’t

speak

because of the process.

And what else did you say to him?

I said that if he were to vote for something

like this,

it’s much like being ostracized

or like

6

being

without having friends because the community

was so against this,

Anything else, Mr. O’Brien?

I may have reflected

that it’s kind of like

being in the back of a church alone from the back pew.

You told him if he voted for this,

in favor

of this, he would be sitting

alone in church?

With that idea insomuch as because the

general public was so against this.

Including you?

I was against this particular

application.

And then did you have another conversation

with Mr. Bubik?

I don’t know that I

well, you have the

information

right there.

You were present.

I wasn’t.

So let’s talk

about what you know.

I don’t remember any other real specific

conversation.

Page 148

MR. O’BRIEN:

I’d like to

by the way, I

have called this witness.

I’d like to call this witness

on cross subject to impeachment.

I consider him an

4  adverse witness who opposed the application and attempt

to cross-examine

and impeach the witness.

6

HEARING OFFICER HALLORAN:

Mr. Porter?

MR. PORTER:

Well, I object.

I haven’t heard

anything the least bit adverse to Mr. O’Brien’s

questions.

HEARING OFFICER HALLORAN:

I agree.

Thanks

for letting us know ahead of time.

I think we’ll wait

until it becomes necessary.

BY MR. O’BRIEN;

Okay.

So that’s Mr. Bubik.

You think you

had one, maybe two conversations

with him?

Correct.

Were both of these conversations

after the

hearing had begun?

No.

I don’t know that they were both after

the hearing.

I don’t know exactly when they were.

Before the decision in any event?

Correct; yes.

How about Mr. Hann?

Mr. Hann, I may have made a mention to

Page

149

Mr. Hann also that I thought the application

wasn’t the

correct application.

Did you do that after the hearing had begun?

4

No.

I think that was before the hearing.

5

How long before the hearing?

6

I don’t recall.

Certainly after the application

was filed?

Sure.

How about Mr. Colwill,

you also made a comment like that

I made a comment to Mr.

Again, there was no response; but I

that I didn’t think the application

application.

other people also leaning on these

to get them to vote against the

MR. PORTER:

Objection.

HEARING OFFICER HALLORAN:

Mr. O’Brien?

MR. O’BRIEN:

I’m just asking him.

HEARING OFFICER HALLORAN:

Sustained.

you said you thought

to Mr. Coiwill?

Colwill about it.

did make a comment

was a correct

Now,

other people do

No.

Were

Council members

expansion?

after the decision came down

did

this with you?

Page

150

I don’t know that.

HEARING OFFICER HALLORAN:

Go ahead.

BY MR. O’BRIEN:

I am asking him the question:

Do you know if

other people also were contacting these alderman

6

mean, City Council members

I don’t know specifically.

Let me finish the question.

Then wait for

the objection.

Okay.

Of your knowledge, were other people also

contacting

these Council members after the hearing began

to convince them to vote against the application?

I suppose it’s entirely possible.

To my

knowledge, I don’t know specific

individuals.

Did you ever tell anyone that you and others

were leaning on the Council members after the hearing

began to vote against the application?

MR. PORTER:

I’m going to object.

That’s

completely irrelevant.

This is not a City Council

member.

This is

THE WITNESS:

A nobody.

MR. PORTER:

I didn’t say that.

I’m sorry.

THE WITNESS:

That’s okay.

Page 151

MR. PORTER:

This is a member of the public.

And whether or not he told somebody else that others had

been contacting the City Council is completely

irrelevant

to the issue.

He just said that he didn’t

have any knowledge of anybody else contacting them.

6

what you’re doing is you’re impeaching on a collateral

issue.

MR. O’BRIEN:

No.

If he has said that he and

others were leaning on the City Council members, which

10 he has said, I think that’s relevant.

HEARING OFFICER HALLORAN:

I think I will let

him answer if he is able.

Objection overruled.

Mr. O’Brien?

THE WITNESS:

What do I do now?

HEARING OFFICER HALLORAN:

Well, if

Mr. O’Brien remembers the question.

If not, then I can

have it read

No, I remember the question.

I guess what

I’m trying to say it is common knowledge in the general

public that others had shared the same views I did, and

I’m sure that others had talked to Council members.

BY MR. O’BRIEN:

And so you remember speaking with John

Holmstrom in June of 2003, right?

Page 152

Sure; that’s correct.

And do you remember saying to him that when

it looked like things were not going the way you wanted

after the hearing started,

that you and others started

to lean on the Council members and began meeting with

6

them?

I certainly can answer for myself, and others

may have said they would or did.

I don’t know who did

or did what.

I can’t specifically

say.

I wasn’t there.

So when you told Holmstrom that that had

happened, you were just surmising that this happened?

Surmising, just a guesstimate.

MR. O’BRIEN:

That’s all the questions

have.

15

HEARING OFFICER HALLORAN: Thank you,

16 Mr. O’Brien. Mr. Porter?

CROSS-EXAMINATION

BY MR. PORTER:

You have no specific

knowledge of anybody

else contacting a City Council member after the

application

was filed and before the decision,

correct?

Not specifically.

You have no personal knowledge of that, you

never witnessed it; correct?

Page 153

No; that’s correct.

Nobody ever told you they did that, correct?

Correct.

4

Now, you telephoned Mr. Bubik.

And isn’t it

true that your actual purpose for telephoning

Mr. Bubik

6

was to offer him a place to put up a sign while he was

running for re-election?

8

A.  That’s correct.

9

And in the course of that

well, strike

that.

Let’s lay some foundation.

You own a business,

is that right?

That’s correct.

And what is that business?

I own a little

rental business.

And it has a window where many candidates

posted their election posters,

is that right?

Over the years, many, many, sure.

And which election

are we talking about now;

this would have been 2003, is that correct?

20

A.  Yes; that’s correct.

And isn’t it true that many City Council

members posted their signs in your building during that

election?

That’s correct.

Page

154

And you were calling Mr. Bubik to offer him

2  the same service?

That’s correct.

And during that conversation,

you informed

him your opinions regarding this landfill

application;

6  right?

That’s correct.

And at no time did Mr. Bubik ever solicit

those opinions from you, correct?

That is correct.

At no time did he offer any opinions of his

own, correct?

That is correct.

At no time did he ever indicate to you that

he had his mind made up in any way, is that right?

That is correct.

As a matter of fact, he didn’t respond at all

when you made that statement

to him?

That’s correct.

Now, you also made a statement about you

could find yourself in the back of the church.

Were you

trying to threaten him?

Not at all, just a phrase, try to make him

understand how people feel, how strong they feel.

Page

155

Were you trying to impress upon him that you

understood he had a difficult

decision to make?

Absolutely.

And understood that if he had to find in

favor of the landfill,

that might be an unpopular

6

decision;

is that right?

It may be an unpopular decision,

of course.

But you weren’t threatening

to ostracize

him

from his

church, were you?

Not at all.

Are you even a member of his church?

No, I am not.

To your knowledge, did Mr. Bubik think you

were threatening

him in any way?

MR. O’BRIEN:

Objection.

HEARING OFFICER HALLORAN:

He can answer to

his knowledge, his understanding,

state of mind.

ahead, Mr. O’Brien.

I didn’t feel as though he did.

I hope not.

BY MR. PORTER:

Did you attend some of the hearing?

Yes, I did.

And the unsolicited

comment that you made to

4

Mr. Bubik and may have made to Mr. Hann, were they any

Page 156

different

than what you heard at the hearings?

Not at all.

MR. PORTER:

Nothing further.

HEARING OFFICER HALLORAN:

Thank you.

Mr. O’Brien?

6

MR. O’BRIEN: No other questions.

HEARING OFFICER HALLORAN:

You may step down.

THE WITNESS:

May I make any statement or

not, sir?

HEARING OFFICER HALLORAN:

Mr. O’Brien, do

you have any objection?

MR. O’BRIEN:

He can make public comment if

he wants to?

THE WITNESS:

May I?

HEARING OFFICER HALLORAN:

Yes, you may.

MR. JOHN O’BRIEN:

I want to just say for the

record

HEARING OFFICER HALLORAN:

Excuse me.

Mr. O’Brien, whatever say, you are subject to cross

because you are already sworn in.

So it would be public

statement as opposed to public comment,

MR. JOHN O’BRIEN:

I can make a public

comment?

24

HEARING OFFICER HALLORAN: Go ahead, public

Page 157

statement.

MR. JOHN O’BRIEN:

I just wanted to say that

I think a lot of people felt as though this application

may not have been reasonable;

but I really think that

for those of us like myself and many of the other people

6  that feel strongly against it, we feel as though we’re

7  living in a free country with the ability for free

speech.

And we wanted to talk to our elected officials,

9

and I think the process is very cumbersome.

And I think

10  it’s a difficult one in small communities such as ours

to ask the City Councilmen to sit in judgment and go

through these processes that are extremely rigid.

just think it’s a difficult

thing, but I do appreciate

the opportunity to make the statement.

HEARING OFFICER HALLORAN:

THank you.

Mr. O’Brien?

MR. O’BRIEN:

No questions.

HEARING OFFICER HALLORAN:

Mr. Porter?

MR. PORTER:

No questions.

HEARING OFFICER HALLORAN:

You may step down.

MR. JOHN O’BRIEN:

Thank you.

MR. O’BRIEN:

I call John Holmstrom.

HEARING OFFICER HALLORAN:

Raise your right

hand, sir, and Tracy will swear you in.

Page 158

JOHN HOLMSTROM,

called as a witness herein, having been first duly

sworn, was examined and testified

as follows:

DIRECT EXAMINATION

BY MR. O’BRIEN:

Sir, would you state your full name and spell

your last name for the record?

John Holmstrom, last name is

H-o-1 -m-s--t -r-o-m.

And by whom are you employed and in what

capacity?

Limited.

A subsidiary

partners in Rochelle Waste

On the day that

voted to reconsider their

that is on April 28th, on

reconsider that decision,

from the City’s attorney,

Yes, I did.

About what time?

William Charles is one of the

Disposal, yes.

the Rochelle City Council

April 24th, 2003, decision,

the day that they voted to

did you receive a phone call

Charles Helsten?

6

10

I am general counsel with William Charles,

Is that one of the partners in this Rochelle

Waste Disposal,

LLC?

Page 159

About 3:00 o’clock in the afternoon.

And would you relate the conversation

that

you had with Helsten to the best of your recollection

that time?

Yes.

Mr. Helsten said that he planned to

6

appear before the Rochelle City Council that evening,

that he intended to request the counsel to take some

action to incorporate

the conditions which had been

recommended by the hearing officer and the staff into

their decision so that if the decision were reversed on

appeal, the conditions that had been recommended by the

staff would be incorporated

in the reversal.

Did he say anything further about any of the

findings specifically?

He said he was concerned about the finding

with respect to Criteria

9, and that that was the reason

he was urging the

intended to urge the Council to

take this action.

And did he tell you what would happen?

He told me that nothing would happen that

evening, that if anything it would be necessary to have

a special hearing on Wednesday.

That was on Monday?

Yes.

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Page 161

You understood that the City Council’s

decision as to Criterion

9 and their consideration

conditions

was going to be a topic that evening,

4  correct?

Yes.

6

And you actually are an attorney,

correct?

Yes.

8

You even hired Mr. O’Brien, correct?

My company did, yes.

And you informed Mr. O’Brien that that was

going to be a topic that evening, right?

Yes.

And as a matter of fact, you didn’t have any

scheduling conflict

that would have kept you from being

able to come that evening; correct?

That’s correct.

As a matter of fact, a representative

of the

applicant was present that evening, isn’t that right?

I believe that that’s correct.

Well, isn’t it true that Mr. Tom Hilbert was

there?

Yes, I believe he attended most every

meeting.

You knew that Mr. Helsten represented

City

Page 162

Staff at the time that he telephoned you, is that

2  correct?

Yes.

4

You at no time voiced any objection to

Mr. Helsten about the meeting taking place concerning

6

Criterion 9 or the conditions,

correct?

That’s correct.

You never told him that you couldn’t make it,

9

right?

No.

And indeed you could have made it?

That’s correct.

You are aware that public agenda had been

published listing the consideration

of Criterion 9 and

the conditions as a topic?

MR. O’BRIEN:

This is not an objection.

didn’t understand the question.

Did you say he is now

aware or was he aware?

MR. PORTER:

I believe it is you are aware.

MR. O’BRIEN:

You are aware now?

MR. PORTER:

I am only interested

in what he

is aware of now.

No.

BY MR. PORTER:

Page

163

You have no reason to believe that an agenda

was not published that evening, do you?

Correct.

I have no reason to believe that.

As a matter of fact, you even knew that there

was going to be a City Council meeting that evening

6

before Mr. Helsten called you; isn’t that right?

I think yes.

Now, you understood that what was going to be

taken up that evening was a reconsideration

as to

Criterion 9 which had been previously

found not met by

the City Council; correct?

I understood that that was what Mr. Helsten

planned to tell the City Council.

You certainly

don’t have any objection to the

City Council finding that your company met Criterion

do you?

I would have had no objection.

And so the only reason that you have even

brought up the fact that that’s been reconsidered

because it removed a potential

issue for appeal, is that

right?

I think it indicates the overall manner in

which the Council’s decision was made, and the fact that

it was overturned or reconsidered

is a part of the

Page 164

packet.

So in hindsight,

you would have preferred

that they not reconsider Criterion 9 because you didn’t

4

feel there was any basis for their finding against

Criterion

9; right?

6

As I sit here today, I suppose that’s true.

Now, isn’t it true that your company was

perfectly

able and willing to comply with the conditions

had there been approval with the conditions?

10

A.

Yes.

So you would agree that there’s certainly no

prejudice to the City Council finding that at some point

the PCB or some other body were to reverse the decision

that those conditions be imposed; right?

No, I don’t agree with that statement.

Well, the only prejudice is

strike that.

Tell me, what’s the prejudice?

MR. O’BRIEN:

Object.

He is asking for legal

conclusions at this point.

MR. PORTER:

He’s a lawyer.

HEARING OFFICER HALLORAN:

Mr. Porter?

MR. PORTER:

He is perfectly

capable of

giving me his philosophy as to why he believes this is

prejudice.

He is an attorney practicing

in the

Page 165

industry.

2

MR. O’BRIEN: I can explain those matters in

briefs, but this is the witness who is testifying

facts.

5

HEARING OFFICER HALLORAN: I’ll allow

6

Mr. Porter a little

latitude.

If you can answer, please

doso.

8

A.  Repeat the question, please.

BY MR. PORTER:

What possible prejudice could there be to

your company when you were perfectly

able and willing to

comply with conditions?

If the decision were reversed on appeal

without the conditions,

we would not have been subject

to them; and that would have been to our advantage as

compared with having the conditions made a part of our

siting approval.

8ut at no time that evening did you come and

voice any objection to the City Council; correct?

There was no reason to.

Okay.

As to Criterion 9, isn’t it true that

recharge areas were a topic of discussion at the Section

39.2 hearing?

24

A.

I’m sure they were

Page 166

And you don’t know whether or not the City

Council simply confused the recharge areas that were

discussed at the hearing with a regulated recharge area

4

as referenced in Criterion 9; is that correct?

5

MR. O’BRIEN: Object, relevance, your Honor,

6

whether he knows about the hearing or doesn’t know about

the hearing really isn’t relevant.

8

HEARING OFFICER HALLORAN: Tracy, one more

time, read the question back.

(The record was read.)

HEARING OFFICER HALLORAN:

Again, I’ll

allow

Mr. Porter a little

latitude

if the witness can answer.

I surely don’t know.

BY MR. PORTER:

Well, I need to backtrack a little

bit

regarding the conditions.

Isn’t it true that the

reconsideration

by the City Council to impose those

conditions if their decision was reversed was in no way

prejudicial

to your client?

MR. O’BRIEN:

Objection.

MR. PORTER:

What’s the objection?

MR. O’BRIEN: Asking for legal conclusion.

HEARING OFFICER HALLORAN:

I have given you a

lot of latitude,

Mr. Porter.

Page 167

MR. PORTER:

It’s the last question on the

topic.

3

HEARING OFFICER HALLORAN: Okay. Objection

4

overruled.

If the witness can answer, please do so.

No, I don’t agree with that.

I think it

6

would be prejudicial

in the sense that if the decision

were reversed on appeal without conditions,

that result

would have been to a minor degree more advantageous to

us than a decision which reversed on appeal and imposed

10  the conditions.

BY MR. PORTER:

Okay.

Isn’t it true that at the deposition

on Pages 31 to 32 I asked you, “You earlier

testified

that the applicant was able and prepared to meet the

conditions

if they had been imposed.

Therefore,

the

reconsideration

by the City Council to impose those

conditions

if their decision was reversed was in no way

prejudicial

to your client?”

Mr. O’Brien objected as it

called for a legal conclusion,

and then you answered,

“In a practical

sense, I think that is correct,

that in

a practical

sense it was not prejudicial.”

Did you give

that response when I asked you that question before?

Correct.

MR. PORTER:

Nothing further.

Page 168

HEARING OFFICER HALLORAN:

Mr. O’Brien,

2

redirect?

REDIRECT EXAMINATION

4

BY MR. O’BRIEN:

Did you do a memorandum of your conversation

6  with Heisten immediately following the conversation?

Yes, I did.

(Petitioner’s

Exhibit No. 22

9

was identified.)

BY MR. O’BRIEN:

This is Petitioner’s

Exhibit 22.

Is that a

copy of that memorandum?

Yes.

MR. O’BRIEN:

I’d offer 22.

It’s not on our

exhibit list.

MR. PORTER:

I am not as concerned about it

not being on the exhibit list as it being irrelevant.

It’s a hearsay statement for present recollection

recorded.

It in no way

it would be different

if I

had impeached him in some part of that statement,

but I

did not; and I don’t see what relevancy it has then.

It’s hearsay.

23

HEARING OFFICER HALLORAN: Mr. O’Brien?

24

MR. O’BRIEN: He specifically references the

Page 169

fact that Helsten had told him that the Council could

2  not do anything that night, and it would have to come up

in a special meeting on Wednesday.

That’s the last

statement.

I think under the liberal rules of the PCB’s

evidence rules, it says if there’s any question about

6  admissibility, this memorandum should come in.

7

HEARING OFFICER HALLORAN: Let me take look

at it.

MR. O’BRIEN:

Sure.

It’s the last paragraph.

MR. PORTER:

I have one parting comment.

HEARING OFFICER HALLORAN:

Sure, Mr. Porter.

MR. PORTER:

What he is doing is bolstering

testimony when I didn’t impeach it, that’s why it’s

improper.

MR. O’BRIEN:

He did, though, in a way; he

impeached him with his deposition,

attempted to.

MR. PORTER:

Not on the issue that you’re

offering the exhibit for.

The issue you’re offering the

exhibit for is what he purports to have told

Mr. Heisten, and I didn’t impeach him on that.

MR. O’BRIEN:

No; no.

This is

the

22 memorandum is not what Holmstrom told 

MR. PORTER:

I’m 

sorry.

I misspoke, other

way around.

What Mr. Helsten told Mr. Holmstrom.

Page 170

HEARING OFFICER HALLORAN:

You know, it is a

pretty close call, Mr. O’Brien, so I will accept

Petitioner’s

Exhibit No. 22 over Mr. Porter’s objection.

(Petitioner’s

Exhibit No. 22 was

admitted into evidence.)

6

MR. PORTER:

Mike, do you have another copy

of that?

MR. O’BRIEN:

I do.

HEARING OFFICER HALLORAN:

If not,

Mr. McKinney

MR. O’BRIEN:

No, I’ve got it.

MR. PORTER:

Thank you.

MR. O’BRIEN:

That’s all the questions

have.

HEARING OFFICER HALLORAN:

Thank you,

Mr. O’Brien.

Mr. Porter, any recross?

MR. PORTER:

No.

HEARING OFFICER HALLORAN:

Thank you.

You

may step down.

MR. O’BRIEN:

Is Mr. Mueller here yet?

he?

We call Mr. Beardin.

HEARING OFFICER HALLORAN:

Raise your right

hand, and the court reporter will swear you in, please.

FRANK BEARDIN,

Page 171

called as a witness herein, having been first duly

sworn, was examined and testified

as follows:

3

DIRECT EXAMINATION

4

BY MR. O’BRIEN:

Sir, would you state your full name and spell

6

your last name for the record?

Frank Lee Beardin, B-e-a-r.-d-i-n.

And where do you live, sir?

At Route 2, Rochelle,

18143 Highway 38 East.

10

Q.  And are you president of the Concerned

Citizens of Ogle County?

Yes, sir.

When were you elected to that position?

I’m guessing around in the middle of 2000

approximately.

So for several years now you have been the

president

of the CCOC?

Year, year and a half.

And did the CCOC become established

primarily

as a group animated by the proposed landfill expansion

that we’re talking about here today?

I would say that was what originally

got it

started.

I was not at the original meetings, but I

24  would assume that was the original; but once again, I

Page 172

was not one of the originators.

And the CCOC participated

as a party in the

hearing below, the siting hearing in front of the City

4  Council; is that correct?

Yes, sir.

6

And you were represented by counsel, is that

correct?

Yes, sir.

Who was that?

Mr. George Mueller.

Who is here with you today?

Yes, sir.

And did you sit with

did you personally

president

of CCOC sit with Mr. Mueller at the counsel

table during the siting hearings?

At the second siting hearing, yes, not at the

first.

The second siting hearing being the one that

we’re concerned about today that took place at the end

of February, beginning of March, 2003?

Yes, sir.

Now, did you know that it was not appropriate

to have ex parte communications outside the hearing with

Council members about the landfill

application

once the

Page 173

application

had been filed?

Mr. Helsten had mentioned some of the public

might approach the people in church or something, asking

them questions;

but they were not to communicate

anything with them.

6

And did you know that it was inappropriate

contact Council members yourself?

Yes, sir.

You knew that was the rule, that you as the

president

of the CCOC were not supposed to be contacting

Council members?

Well, I didn’t realize that it was as

stringent as it is, as I’m finding out it is; but as

most individuals

most people, right,

so as the

president

of the CCOC I’m finding out more now than I

did then; but we were not to talk to them.

It’s more

stringent

than we thought anticipated

or I thought

anticipated.

Well, you knew after the application

was

filed, did you not, that you were not supposed to be

contacting City Council members?

MR. PORTER:

Objection,

asked and answered a

couple times.

MR. O’BRIEN: No, I haven’t gotten quite that

Page 174

answer.

HEARING OFFICER HALLORAN:

I’ll allow this

once, but I think it has been asked and answered, but

4  one more time.

BY MR. O’BRIEN:

6

Did you know that?

7

Basically,

yes, I knew that we were not to

talk to them; but like I say, once again, we did not

know it was as stringent

as it is.

We’re just a local

community, and everybody knows everyone.

And did you know that you weren’t supposed to

contact Ed Kissick, say, after the application

was filed

up to six times?

Did you know that?

As I stated at the deposition earlier,

I did

not remember contacting Mr. Kissick.

But did you know

His memory may be better than mine, but I did

not remember contacting him.

Whether you remember contacting him or not,

did you know you weren’t supposed to contact him after

the application

was filed?

MR. PORTER:

Again, this is four times.

HEARING OFFICER HALLORAN:

I have counted

close to five, Mr. O’Brien, so drop it and go on to

Page i75

another line of questioning.

I believe he said

BY MR. O’BRIEN:

Now, Mr. Beardin, is it correct that you

wrote repeated letters

to the editor expressing your

5  opposition and the CCOC’s opposition to the landfill

6

expansion application?

MR. PORTER:

Objection,

irrelevant.

HEARING OFFICER HALLORAN:

Mr. O’Brien?

9

MR. O’BRIEN: I think it’s completely

10 relevant if he’s taking a position. I mean it’s the

point that I’m attempting to make with this video, your

Honor.

HEARING OFFICER HALLORAN:

Objection

overruled.

BY MR. O’BRIEN:

He is going to let me ask you again.

Could I have the question one more time?

Sure.

I’m asking you simply at this point

you wrote repeated letters to the editor opposing the

landfill

application,

is that correct?

Yes, sir.

The majority of the letters were

wrote in response to letters

and information supplied by

the Rochelle Waste Disposal.

They made approximately

30; and every time they would have one, I tried to give

Page 176

a response to it.

And one of the themes that you repeatedly hit

on is that Council should not sell out your children’s

4

and grandchildren’s

environmental

legacy for mere

5  dollars, mere money? Isn’t that a theme that you

6  repeatedly hit on in your letters?

That could be one which is mostly

MR. PORTER:

Same objection.

If necessary,

9

can I show an ongoing objection to the line of

10 questioning about what was in the editor’s letters?

HEARING OFFICER HALLORAN:

Yeah, it’s

ongoing objection;

however, the objection is overruled,

but it is an ongoing objection.

(Petitioner’s

Exhibit No. 9

was identified.)

BY MR. O’BRIEN:

Show you Petitioner’s

Exhibit 9 and refer you

to the highlighted paragraph.

First of all, is that a

letter that you wrote to the editor of the Rochelle News

Leader?

It has my signature on it, so it could very

well be.

Do you remember writing the paragraph that

says, “If they realize these dump dollars really aren’t

Page 177

1  worth selling the city’s future generations out and vote

no to the expansion, they lose the second $200,000”?

Do you remember writing that?

4

A.  I remember having that as a very strong

opinion because it looked like in the agreement with the

6

City that if the City Council would vote yes, they would

be given another $200,000.

If they vote no, it

indicated that that $200,000 would dry up and go away.

You wanted them to ignore the host fees and

not to pay attention

to the money because it wasn’t

about money, it was about the environment is what your

point was; is that right?

MR. PORTER:

I object.

The question is

vague.

You wanted who to do that?

MR. O’BRIEN:

You wanted the City Council to

ignore the host fees and to be concerned about the

environment.

MR. PORTER:

Again, I object.

This isn’t a

letter to the City Council.

This is a letter to the

editor of the newspaper.

MR. O’BRIEN:

I understand.

I’m trying to

develop the theme that he was developing through his

arguments to these Council members and through these

letters.

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Page 179

MR. PORTER:

I have to object.

I think

that’s completely inappropriate

to be asking

HEARING OFFICER HALLORAN:

Wait a minute,

4

Mr. O’Brien.

Mr. Porter, can you finish that?

5

MR. PORTER: I think that’s completely

6

inappropriate to be asking if someone is quoting the

7  Bible or quoting the Lord. I mean, it clearly gets to

religious

affiliation.

I don’t see how it’s relevant at

all to this proceeding, just seems inappropriate.

HEARING OFFICER HALLORAN:

I usually let

people a little

latitude,

but I think you’re going

beyond the bounds.

I think the letters

pretty much

speak for themselves.

MR. O1BRIEN:

Okay.

I will go on.

(Petitioner’s

Exhibit No. 10

was identified.)

BY MR. O’BRIEN:

I’ll show you Exhibit 10.

It’s another

letter to the editor that I believe you wrote right

before the decision on April 22nd, 2003.

Is that a

letter that you did right to the newspaper?

MR. PORTER:

Obviously,

same objection.

HEARING OFFICER HALLORAN:

Objection

overruled.

Page 180

I remember that statement,

yes.

BY MR. O’BRIEN:

The statements

that are highlighted

in the

4

letter?

S

A.

The last one I was handed, I remember that

6

statement; and it’s 

we are entrusted with this earth

and to take care of it.

Why go out and destroy?

And

not saying that they would destroy it, but like I say

it’s just food for thought.

(Petitioner’s

Exhibit No. 11

was identified.)

BY MR. O’BRIEN:

I’m 

going to show you Exhibit 11.

Is that

another letter that you wrote in the course of the

HEARING OFFICER HALLORAN:

Same objection,

Mr. Porter?

MR. PORTER:

Same objection.

There’s no

evidence this is an ex parte communication.

It’s

irrelevant.

HEARING OFFICER HALLORAN:

I do find it

relevant to the extent it may assist the petitioner

his fundamental fairness

issue.

That’s why I am

accepting these exhibits.

BY MR. O’BRIEN:

Page

181

Did you write that letter

in April of 2000,

2  starting out, “For what monetary amount would you sell

3  your children’s and grandchildren’s health?” Did you

4  write that letter?

Once again, it has my name on it, so I very

6

possibly did.

It has some statements

that I agree with

for thought,

and once again who would sell their

children

and their future out.

Family has some

9

family values have to weigh very strongly.

(Petitioner’s

Exhibit No. 12

was identified.)

BY MR. O’BRIEN:

Exhibit 12 is another letter that you wrote

in June of 2000?

MR. PORTER:

Again so the record is clear,

this is a letter to the editor; and I still

object.

It’s not an ex parte communication.

It’s irrelevant.

HEARING OFFICER HALLORAN:

Objection

overruled.

BY MR. O’BRIEN:

Did you write that letter that says, “Is it

really worth the chance of some short-term,

quick money

to sacrifice

the good water for a dump? You be the

judge.

It’s your family and grandkids”?

Did you write

Page 182

that letter?

2

A.

Once again, it has my name on it, and it has

some of the opinions that

I

have.

And once again it

4

went to the community

to the newspaper.

HEARING OFFICER HALLORAN:

What’s the date on

6

this, Mr. O’Brien?

MR. O’BRIEN:

That last one, Judge?

HEARING OFFICER HALLORAN:

Yes.

June of

2000?

MR. O’BRIEN:

Yes.

HEARING OFFICER HALLORAN:

These print once a

month?

MR. O’BRIEN:

June of 2000, that’s the only

date on it.

BY MR. O’BRIEN:

These are all documents, by the way, that you

produced in discovery,

are they not, Mr. Seardin?

You

gave me all the letters

that you had done over the

years?

That’s what was asked for, and once again at

the time I was strictly

a member of the CCOC.

MR. O’BRIEN:

Pardon me just a minute,

Mr. Hearing officer.

MR. PORTER:

I

also object because this is

Page 183

way before the application

was even filed.

HEARING OFFICER HALLORAN:

Well, we are on

the fundamental fairness issue, Mr. Porter, so

4  pre-filing contacts 

MR. PORTER:

But it’s not a contact.

6

MR. O’BRIEN:

You are aware that there was a

previous application,

and we filed this application?

don’t know if you knew that or not.

9

HEARING OFFICER HALLORAN:

Yes.

10

MR. PORTER: I just 

HEARING OFFICER HALLORAN:

Go ahead,

Mr. Porter.

You can make a record.

MR. PORTER:

I just have absolutely

no clue

what the relevancy is of any of this.

I guess that’s

why I just keep reiterating

my objection.

I apologize

for

MR. O’BRIEN:

Smirking.

BY MR. O’BRIEN:

Now, Mr. Beardin even though you knew it was

not appropriate

to contact Council members after the

application

was filed and particularly

during the

hearing and while you were sitting at counsel table as a

representative

of the party, isn’t it true that you went

to Mr. Bubik’s house to give him a videotape of a

Page 184

television

program that you had seen during the hearing?

Yes, as Mr. Bubik stated,

and as Mr. Bubik

very correctly

stated when I walked up, I says, as a

4

friend, this is something you might be interested

in,

end of conversation.

6

What was your purpose in going to him with

this videotape of this television

program that you had

seen on Saturday night, March 1st, during the hearing?

9

Basically the same as what I stated,

whatever, at the last deposition.

It was just to bring

the point that

what some big business stated don’t

always end up being the end results.

Were you doing that in order to influence

Mr. Bubik’s decision that he would be making with

respect to the landfill?

MR. PORTER:

Objection,

calls for conjecture.

Again, it’s completely irrelevant

to the line of

questioning.

There’s no evidence that any City Council

member watched the videotape.

HEARING OFFICER 1-IALLORAN:

Tracy, could you

21  read the question back?

(The record was read.)

MR. PORTER:

And it was conjecture

and

24  irrelevant because there is no evidence that anybody

Page 185

watched it.

MR. O’BRIEN:

I argue that this goes to the

gravity of the contact.

It was done purposely and

4

intentionally

to influence the vote, an ex parte

communication during the hearing.

That evidence is

6

relevant and should be considered by the PCB.

7

HEARING OFFICER HALLORAN: I think, I am 

to remain consistent,

I think I am going to sustain

9

Mr. Porter’s objection;

and you can ask it as an offer

of proof, and he can answer.

BY MR. O’BRIEN:

Okay.

I will ask you this way as an offer of

proof:

Was it your purpose in offering him that video

14  to persuade him to vote against the landfill

application?

No, sir, it was not.

As Mr. Roeglin

mentioned, everything was pretty well

you know, it

was just information.

Information about what?

Just a broad information.

It was just

nothing in particular.

There was

back up. No, at

the time.

Did this television

episode Touched By An

24 Angel have to do with the environment?

Page 186

MR. PORTER:

Same objection,

which is

relevancy because there’s no evidence it was ever

3  watched by the City Council member.

4

MR. O’BRIEN:

Has to do with the gravity of

S

the contact.

HEARING OFFICER HALLORAN:

Same ruling,

objection sustained.

8

proof?

MR. O’BRIEN:

I can go ahead with an offer of

Mr. O’Brien.

HEARING OFFICER HALLORAN:

Offer of proof,

MR. O’BRIEN:

I

will do that.

I’m sorry.

One more time?

BY MR. O’BRIEN:

Did this have anything to do with the

landfill

hearings?

No, sir

Had nothing to do?

Had nothing to do.

Well, let’s see now.

You watched this

program on Saturday night, March 1st, right1 during the

hearing; right?

And it’s a religiously

kind of oriented

program with angels coming down from heaven and

6

interacting

with people, right?

MR. O’BRIEN:

I’m assuming that this is all

Page 187

It was a very good program.

Some people may

not think so, but it was good program.

It was at that

time.

And one more time, I’m sorry, again on the

4  question.

And the thrust of it was that angels come

6  down, and they deal with an inventor who is about to

invent a machine that’s going to make energy from water?

B

MR. PORTER: Can I show an ongoing objection

9

to any questions regarding the Touched By the Angel

episode?

HEARING OFFICER HALLORAN:

Are we going to go

through the same thing we did in opening?

I feel like

I1ve watched the episode twice now.

What are we doing

now, Mr. O’Brien?

MR. O’BRIEN:

I’m 

going to show the episode,

a little

bit of the episode.

HEARING OFFICER HALLORAN:

For the record, we

are showing a little

bit of the touched by the video

an offer of proof.

HEARING OFFICER HALLORAN:

It’s an offer of

proof

of proof.

MR. O’BRIEN:

I will do this all as an offer

Page 188

(sic) episode that was Petitioner’s

Exhibit 14.

MR. O’BRIEN:

It’s actually

a DVD made from

3  that video, same thing. It’s easier to pop in.

4  BY MR. O’BRIEN:

So what happens?

Just explain to the hearing

6

officer what happens in this episode.

7

A.  Basically what you had stated is fairly

correct.

Someone had invented

had an invention that

9

was close to being complete, and it was turning a glass

of water into electricity.

And this inventor,

Chester from Gun Smoke,

he’s very concerned about the environment and thinks a

lot more about the environment than he does about money;

right?

That could be construed as the main thought

of the video or movie.

And so the movie, it sort of starts out with

the angels, you know, talking about how wonderful the

earth was before man came along and began to destroy it,

build, right?

Best I remember.

NEARING OFFICER HALLORAN:

Mr. O’Brien, why

are we watching this?

MR. O’BRIEN:

I just want to take him through

Page 189

1  a few of the themes and see if they aren’t precisely the

same themes that he struck in his letters

to the editor,

and this indeed had everything to do with the hearings

4  that were ongoing.

HEARING OFFICER HALLORAN:

You can’t ask that

6

orally without the video?

MR. O’BRIEN:

I think a few of the statements

will be helpful.

9

HEARING OFFICER HALLORAN:

I’ll be the judge

of that, but let’s proceed.

MR. PORTER:

We’re still

under an offer of

proof?

HEARING OFFICER HALLORAN:

Yes.

MR. O’BRIEN:

Yes, I understand this is an

offer of proof.

BY MR. O’BRIEN:

So the movie starts out with the angels

talking about the earth, right?

You remember this part

of the video?

HEARING OFFICER HALLORAN:

By the way, the

court reporter is not taking down the script.

MR. O’BRIEN:

The DVD will be of record.

BY MR. O’BRIEN:

So, Mr. Beardin, basically

the energy company

Page 190

would help the angels convince this Chester to buy the

device so they can supposedly finish it, complete it

3  because he’s going to die; do you remember that?

4

A.  Best I recollect, that’s the drift of the

program.

6

So he gets visited by one of the angels here,

right?

Yes, she is one of them.

9

Q.  And she’s driving an old clunker, and he

says, well, let somebody else worry about the ozone

layer.

He’s very environmentally

concerned, right?

He appears to be, yes.

He is really not concerned about money,

right?

It don’t indicate that, and he only has six

months to live approximately.

HEARING OFFICER HALLORAN:

We’re talking

about Dennis Weaver?

THE WITNESS:

Yes.

BY MR. O’BRIEN:

Do you remember that part?

HEARING OFFICER HALLORAN:

You’re going to

have to turn it off while Mr. Beardin answers.

24 BY MR. O’BRIEN:

Page 391

Do you remember that part of the movie?

2

A.  After revisiting it, yes, it seems familiar.

3

And that guy who is telling the little

kid

4  money isn’t everything, he is one of the angels sent

down from heaven?

Do you remember that?

6

Can I visit

who was talking,

was that not

7  Dennis Weaver?

No, that was one of the angels.

9

Oh, okay.

MR. PORTER:

If it helps, I’ll stipulate

that

that’s an angel.

HEARING OFFICER HALLORAN:

Mr. Porter

stipulates

that it’s an angel.

MR. O’BRIEN:

I’ll take that stipulation.

BY MR. O’BRIEN:

Do you remember that?

It’s familiar,

yes.

HEARING OFFICER HALLORAN:

Mr. O’Brien,

I am

not sure what this is about.

MR. O’BRIEN:

This is about

21

HEARING OFFICER HALLORAN: Turn it mute or

22  something. I can’t talk and listen to angels and

23  Mr. Beardin as well as you. I am not sure 

I think

24 Mr. Beardin understands the point you’re driving. I’m

Page 192

certainly

understanding

it.

And I think it will be

2  reflected to the Board. As far as you showing bits and

pieces of the video, I’m not sure

if you can clarify

4  again why you’re doing that?

MR. O’BRIEN:

Your Honor, I am trying to

6

simply demonstrate,

which

I

think is obvious, which is

he was attempting to give to a Council member a

dramatization

of precisely

the same arguments that he’d

been making for several years in his letters to the

editor.

And he was president

of the CCOC.

He was a

party to the proceedings.

He knew he shouldn’t be doing

that, and he clearly did it to influence the Council

members’ decision.

And he denies it, and I’m trying to

impeach him.

HEARING OFFICER HALLORAN:

But

- -

but

MR. O’BRIEN:

If it helps, is that not

obvious?

I mean, is it not obvious that that was what

he was doing?

HEARING OFFICER HALLORAN:

I am not the

ultimate decision-maker.

MR. O’BRIEN:

I understand that.

HEARING OFFICER HALLORAN:

It’s obvious that

I’m not sure why we need this and why we can’t just do

an oral without injecting,

you know, every two seconds a

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Page 194

It was not maybe the same day.

It may have

been before or it may have been after.

You saw it on Saturday night?

The program

4

aired on Saturday night, there’s a stipulation to that

S  effect, on Saturday night, March 1st, at 7:00. How many

6

copies of this video did you make?

7

A.  There may be six, I don’t know, thereabouts;

8  and I may have passed one of them around.

9

Who did you offer the video to, Hann, Bubik?

10 How about Kissick?

To the best of my knowledge, no.

You said in your deposition you thought you

maybe gave it to Kissick,

too?

I may have.

I may have went to his house,

but I don’t think anybody was home; and I did not go

back.

I may have.

MR. PORTER:

I realize

we are in an offer of

proof, but it seems like we’re not getting the answer

out before the questions are coming.

MR. O’BRIEN:

I will try to be better about

that.

22 BY MR. O’BRIEN:

23

Did you offer it to Coiwill?

I don’t remember honestly.

I may have gone

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Page i96

Gingrich?”

Answer, “There was no reason.

Just I didn’t

2  go by his place. I didn’t see any reason to offer it to

3

Mr.

Gingrich.” 

Question, “Was that because you thought

4  he had his mind made up about the landfill expansion?”

5  Answer, “I knew his stance on it. That was about it.”

6

Do you remember that question and answer?

7

A.

Okay. That I may have 

I probably said

B

that I knew his stance on it, but that doesn’t mean that

9  I knew his stance for or against the landfill. I just

thought I knew his stance on it.

Let me understand that one now.

If you knew

12  his stance on it, how can you know his stance and not

know what his stance was?

Well, that was the question you said, did I

know his stance on it.

My question was:

The reason you didn’t give

him the videotape is because you knew his stance on the

landfill?

And my answer was?

You said, “I knew his stance on it.

That was

21 about it.”

22

A.

Oh, okay. That was about it.

23

MR. PORTER: Again, I’m trying to shut up

24 because this is supposed to be an offer of proof, but

Page 197

1  that is not an impeaching statement, So it would be

2  improper impeachment if somehow my objection is

3  ultimately overruled by the PCB.

4

HEARING OFFICER HALLORAN:

You know, I am a

5  little unclear where the offer of proof begins and ends

6  right now.

MR. O’BRIEN:

I’m assuming I am still

in the

offer of proof.

I’ll concede that.

9

HEARING OFFICER HALLORAN:

Right.

And the

impeachment, if that’s what it was, is weak at best.

am not sure where you’re going with that. But I would

direct Mr. Beardin to be a little

more, I guess, clearer

on your answers, yes and no, if that’s what it calls for

because I’m having a little

trouble understanding

what

you’re saying.

But in any event, we can proceed.

16 BY MR. O’BRIEN:

Who other than the City Council members did

18 you offer this video to on Sunday, the following day?

19

A.

That I’m not sure who I offered it to. I say

I had some others, and I did mention it to the people.

I don’t know for sure at this time.

22

Q.  Okay. Did you contact Councilman Kissick up

23 to six times to express your views on the landfill

expansion, to express your opposition after the

Page 398

1  application was filed on November 22nd, 2002?

2

A.  As I stated in the deposition, I did not

3  remember Mr. Kissick. He may have a better memory than

4  I do, but I did not remember I believe was very close to

5  my statement.

6

Did you contact Councilman Colwill a couple

of times after the application

was filed to express your

8  opposition to the application?

9

HEARING OFFICER 

HALLORAN: As far as I’m

concerned, this is not in an offer of proof.

MR. O’BRIEN:

I’m sorry.

I should have said.

12  When I left the video, I stopped my offer of proof.

13

MR. PORTER: I apologize. Can I have that

14 one read back? I wasn’t paying as close of attention as

I should have been.

16

HEARING OFFICER HALLORAN: Right. Tracy?

(The record was read.)

I believe I stated I’m not sure.

I may have

19 stated that I’m not sure, I don’t remember; but if

20 Mr. Colwill says I did, his memory may be better than

21 mine. But I do not remember I think was my answer at

22  the time, was it not?

23 BY MR. O’BRIEN:

24

Q.  Did the CCOC organize a letter writing

Page 199

campaign so that letters

would be sent to the councilmen

2  before, during and after the hearing to convince them to

3  vote against the expansion?

4

A.

They had letters made up 

if someone

if it

5 was a public

the way the public felt, if that was

what the public wanted to say to the Council members, it

was offered to them for them to sign and to mail in.

B

This exhibit has already been identified.

9  would you take a look through Petitioner’s Exhibit 4?

10  It’s a series of letters that Councilman Hann says he

received.

12

A.

Correct.

13

Q.  And you looked through that before

previously?

Yes, sir.

Are those the kinds of form letters that were

sent to Council members?

Once again, these were possibly typed up by a

member of the CCOC and taken out and handed out if the

20

public 

if that was the public’s opinion and they so

wished, they would sign one and take it and mail it in.

22 It was not forced upon anyone. It was just we asked 

23 it was asked, you know, is this your opinion on the

landfill;

if it is

Page 200

Those letters were sent before, during and

2  after the hearing; is that correct?

3

A.  I’m not sure. If they’re postmarked as such,

4  that would be so.

Well, did the CCOC organize this letter

writing campaign?

Well, we

it looks like it’s one that we

had typed up.

And if it was the opinion of the citizens

of the community, they would sign it.

10

Q.  Did you supply them with envelopes addressed

to the Council members?

12

A.  We may have supplied them. I’m not sure what

13  my statement was at the time. Do you have that?

I’m sorry.

What?

We may have supplied envelopes.

I am not

16 sure at the time. I don’t remember what my statement

was on that at the time.

MR. O’BRIEN:

That’s all the questions

19 have.

HEARING OFFICER HALLORAN:

Thank you,

21 Mr. O’Brien. Mr. Porter?

22

CROSS-EXAMINATION

23

BY MR. PORTER:

24

Do you have a recollection of ever attempting

they

gave. If I

gave to me.

Page 201

to contact a City Council member after the application

2  was filed before the decision?

No, sir, I don’t.

If they stated I had

4  called, I honestly do not remember if I did contact

them.

I don’t remember.

6

Do you ever remember a City Council member

7  just telling you I can’t discuss it?

B

A.

It sounds like the answer

9

contacted

them, that was the answers

That is how they were instructed.

But you simply don’t have a recollection

one

way or the other, is that right?

A.

No, sir, I do not.

when you handed the tape to

didn’t talk to you about the landfill,

A.

No, sir, he did not.

At no time did Mr. Colwill

ever indicate to you or anyone at the

would vote against the landfill

in ex

endorsement,

did they?

No, sir.

There was no indication

of that,

and I was not in charge of the CCOC at the time that

occurred.

Mr. Bubik, he

did he?

or Mr. Kissick

CCOC that they

change for a CCOC

The videotape

Page 202

MR. PORTER:

Mr. Halloran,

this is in way of

2  questions that I’m asking only in case somewhere along

3  the way the PCB overrules your sustaining of my

4  objection as to the videotape. I don’t want this to be

5  construed as some waiver of that objection. I guess I

just wanted to make that record,

7

HEARING OFFICER HALLORAN: Okay.

8

MR. O’BRIEN: That’s fair.

9

HEARING OFFICER HALLORAN: Proceed.

BY MR. PORTER:

The videotape doesn’t even involve a

landfill,

does it?

No, sir, it does not.

You don’t have any personal knowledge that

any City Council member ever watched the videotape,

you?

No, sir, I do not.

To your knowledge, no City Council member

ever based

strike

that.

To your knowledge, no City Council member

21  based his decision on an episode of Touched By the

22 Angel?

23

A.  No, sir, I don’t believe they did.

24

That concept is pretty silly, isn’t it?

Page 203

It’s carrying a whole lot more weight than

2  like I said, than it’s authorized. It is very silly.

MR. PORTER:

I have nothing further.

4

HEARING OFFICER HALLORAN: Thank you.

Mr. O’Brien?

6

MR. O’BRIEN:

No further questions.

7

HEARING OFFICER HALLORAN: Thank you. You

8  may step down. Does anybody need a quick break, or do

9  we have one more witness from you, 1’lr. O’Brien?

MR. O’BRIEN:

I don’t think so.

THE COURT REPORTER:

I would.

12

HEARING OFFICER HALLORAN: If the court

reporter wants a break, she gets a break.

14

(A brief recess was taken.)

HEARING OFFICER HALLORAN:

I think we are

16  going to go back on the record. At this point, Mr.

O’Brien, the petitioner

has rested?

MR. O’BRIEN:

Just like to offer some

19  exhibits is all.

HEARING OFFICER HALLORAN:

Right.

We got

some housekeeping matters to do.

Thank you,

22 Mr. O’Brien. What exhibits are you going to offer?

23 don’t have 21. Is that 

MR. O’BRIEN:

No.

You won’t have 21.

Page 204

didn’t use it.

I will give you that which is an

2  updated, and there’s a 22 which is Holmstrom’s memo.

3  That’s just an updated list, and I’ve taken out the ones

4  I didn’t use. I will go through the exhibits one by one

5  and just make sure I’ve offered them all.

6

HEARING OFFICER HALLORAN: As far as

housekeeping matters,

Petitioner’s

Exhibit No. 1,

Petitioner’s

Exhibit No. 6 and Petitioner’s

Exhibit

9  No. 5 for starters, I have them up here; but as far as I

know they have not been offered.

MR. O’BRIEN:

You’re right.

Let’s see,

12 No. 5, what was the other you mentioned, 6?

13

HEARING OFFICER HALLORAN: 6, 5.

MR. O’BRIEN:

6 is the one that was difficult

15 to read, and I won’t offer 6.

HEARING OFFICER HALLORAN:

You are going

MR. O’BRIEN:

Get a better copy.

It’s the

one that basically

Kissick says something to the effect

20 that the CCOC endorsement helped him, so I’m offering

that.

I did not offer it previously.

HEARING OFFICER HALLORAN:

And S you offered.

23

MR. O’BRIEN: I had it identified, and I’m

24  not using it. It was a flier. And 7 I’m not using.

Page

205

1

MR. PORTER: Did we address 1?

2

HEARING OFFICER HALLORAN: If you hold on,

3  Mr. Porter, I’m trying to go as fast as I can here.

4  No. 77

MR. O’BRIEN:

Not used.

6

HEARING OFFICER HALLORAN:

You are offering

7  No. 6 and No. 1.

S

MR. O’BRIEN: Actually 6 has already been

9  admitted, and I am offering No. 1; and that has not yet

been admitted.

That’s the interrogatory

answers.

HEARING OFFICER HALLORAN:

No. 6, Mr. Porter,

12  I think you had an objection.

13

MR. PORTER: No. 6, I do believe I did

object.

I need

can I take a look at it?

This is not

15 dated, and there’s a couple or several Rochelle

articles;

so if I could just take a look at what 6 is.

If it is what I’m thinking,

it is already admitted.

HEARING OFFICER HALLORAN:

I’m thinking

the

transcript

will reflect the date; but, you know, I don’t

20  see it on here.

21

MR. O’BRIEN: It’s only datable by the

22 events. It recites the election.

23

MR. PORTER: 6 is the one that’s difficult to

24  read.

Page 206

MR. O’BRIEN:

You have a copy of it.

You can

2  have that one, too, if you want it.

3

MR. PORTER: And the date is sometime in

4

2001?

MR. O’BRIEN:

Probably right after the

6  election in April.

MR. PORTER:

Objection,

irrelevant.

HEARING OFFICER HALLORAN:

Okay.

I’m going

9

to admit it over objection.

(Petitioner’s

Exhibit No. 6 is

admitted into evidence.)

12

HEARING OFFICER HALLORAN: And No. 1, Answers

13  to Petitioner’s First Set of Interrogatories.

MR. PORTER:

I would object.

It’s a hearsay

document, and I don’t believe the foundation was laid as

to whether or not all of the answers that are obtained

therein were indeed the individual’s

answers.

18

MR. O’BRIEN: I think it’s relevant to

19 Kissick’s impeachment.

HEARING OFFICER HALLORAN:

I’m sorry,

Mr.

21  O’Brien?

22

MR. O’BRIEN: I think it’s relevant to

23  Councilman Kissick’s impeachment. He said he was

24  contacted by Beardin six times after the application was

Page 207

filed.

It was a sworn interrogatory

answer.

I think it

2  should come into the record now.

HEARING OFFICER HALLORAN:

I am going to

4  admit it over objection.

(Petitioner’s

Exhibit No. 1 was

admitted into evidence.)

HEARING OFFICER HALLORAN:

We have

8  Petitioner’s Exhibit No. 9.

9

MR. O’BRIEN:

I would offer the Beardin

10 letters which are 9, 10, 11, 12, and I did not use 13.

HEARING OFFICER HALLORAN:

Mr. Porter,

think you have stated your objection;

correct?

13

MR. PORTER: Correct, irrelevant,

inadmissible,

does not indicate any ex parte

communication.

These are just letters

to the editor.

HEARING OFFICER HALLORAN:

Okay, and I think

I made my ruling.

I am going to admit it.

It may be

18  relevant, as I stated before, to address any of his

19  fundamental fairness issues. So Petitioner’s Exhibit

20 Nos. 9, 10, 11, 12 are admitted over objection.

21

(Petitioner’s Exhibits Nos. 9

22

through 12 were admitted into

23

evidence.)

24

MR. O’BRIEN: 13 wasn’t used. You have

Page 208

already admitted 14, the videotape.

I think Rick and I

have a stipulation

that 15 is simply a DVD copy of the

3  same videotape.

4

MR. PORTER: My recollection is those were

5  admitted as an offer of proof only. 14 

no; no, I

6  stand corrected. That was 

I think it was admitted.

HEARING OFFICER HALLORAN:

Admitted over

objection.

9

MR. O’BRIEN:

Right.

DVD is simply a copy.

HEARING OFFICER HALLORAN:

Again,

I made the

ruling that it may be helpful to corroborate or

12  illustrate what the witness was testifying to. With

13  that said, I think we can 

I think before the City

proceeds with its case in chief, any members of the

public here wish to make public comment or statement at

this time?

Yes, ma’am.

MR. O’BRIEN:

Mr. Halloran,

one other exhibit

was 4. 4 was the Hann letters,

and I offer that.

Those

are the letters

copies of the letters

that Councilman

Hann received.

MR. PORTER:

No objection.

22

HEARING OFFICER HALLORAN: Yeah, that was

23  admitted.

24

MR. O’BRIEN: Okay

Page 209

HEARING OFFICER HALLORAN:

I’m sorry.

Step

2  up, please. And here’s what happens. You can take the

3  seat. If you just want to give public comment and state

4

your peace, so be it.

If you want to give public

statement,

that means you will be sworn in and subject

6  to cross-examination. And with that said if you’re

sworn in, the Board will most probably give it more

S  weight than if you’re not. What would your druthers be?

9

MS. LINDSEY STOUFFER: I would say I don’t

10 mind being sworn in.

HEARING OFFICER HALLORAN:

Great.

You can

12 step up here and raise your right hand, and Tracy will

13

swear you in.

LINDSEY STOUFFER,

having been firstly

duly sworn, gave a public statement

as follows:

Okay.

I would just like to start by saying

that I don’t see how the Council’s decisions could have

been biased because in today’s society we are run by

greed and also by the power to be liked by other people.

20 And I think for the decision to be biased, the entire

council would have to have the same mindset; and I can

22  tell by with the differences in these gentlemen that

23  there was no difference 

or there was difference in

24  their minds at the time that they made the decision.

Page 210

I don’t know what their mindset was at the

2  time, but I can honestly say that I don’t believe that

3  their decision was biased. I can also say that I am

4  hurt to be at this hearing today because I was here with

a few of my partners in school, and we heard both sides

6  of the argument. We heard the CCOC’s argument, and we

spoke in one of their hearings that they had at the VFW;

8  and we also visited the landfill to hear Mr. Hilbert and

9

Mr. Gelderloos’s

stories.

And we asked them few

questions while we were there.

And we asked Mr. Hubert and Mr. Gelderloos

whether or not if the siting hearing did not go as they

had hoped, which was in their favor, would they pursue

anything further?

We were told by both of them no, they

would not pursue anything further if the siting hearing

did not go as they had intended.

And we also asked if

the landfill

expansion did not go through, would they

18 exhume site one, they said no.

19

And I believe that it would be irresponsible

on our part to allow them to have the expansion at this

21

time.

I believe that they are unready for the expansion

22 at this time.

23

HEARING OFFICER HALLORAN: Thank you.

24  Mr. O’Brien?

Page 2!!

MR. O’BRIEN: Just didn’t get a name is all.

2

HEARING OFFICER HALLORAN: I’m sorry. Your

3  name and spell it?

4

MS. STOUFFER:

Lindsey Stouffer.

My last

name is S-t-o-u-f-f-e-r.

6

MR. O’BRIEN: You were here before?

MS. STOUFFER:

Yes.

HEARING OFFICER HALLORAN:

Thank you.

9

MR. PORTER:

No questions.

HEARING OFFICER HALLORAN:

Thank you.

You

may step down.

12

HEARING OFFICER HALLORAN: Any other

13  comments, statements at this time? Seeing no hands 

yes, ma’am.

You can come up, please.

15

HEARING OFFICER HALLORAN: Again, would you

like to make comment or statement?

Would you like to be

sworn in and subject to cross?

MS. SHIRLEY KERSTEN:

I will be sworn in.

SHIRLEY KERSTEN,

20 having been first duly sworn, gave a public statement as

21  follows: My name is Shirley Kersten. I live on a farm

22 about six miles southeast of here, just northwest of the

23 village of Steward downstream from the landfill. My

husband and I farmed in Reynolds Township in Lee County

Page 212

for 47 years.

My husband is now deceased,

but I am now

2  still actively engaged in farming and have been managing

3  my own land, some of which is very near Rochelle as well

4  as my family’s farm which is near Steward.

I have taught quite a few years in the public

6  schools of Illinois, including six years as a special

reading teacher at Central School here in Rochelle and

two years teaching fourth grade in Steward Elementary

~ School. At present I am a volunteer mentor in third and

fourth grades at Steward School.

I also work part time

for the Wal-Mart Pharmacy delivering medicine.

12

I would like to get away from my script just

13  a little bit here to say that I have not been coerced

into coming up here to speak.

We farmers are pretty

busy, and we don’t always hear what’s going on with

Rochelle and yet it concerns us much.

And sometimes

we’re just glad to have people let us know, such as the

CCOC what is going on; and that way we’re a pretty

independent bunch.

We decide what we think is right,

and we go ahead with that.

21.

I have given you all these facts of my

22 background because I have been told by a person involved

in Rochelle city planning that we farmers really have no

business meddling in the government affairs of Rochelle.

Page 2~3

I have not only taught school and worked in Rochelle,

2  also pay a large amount of real estate taxes on land to

3  the schools in Rochelle and help support the Ogle/Lee

4  Fire District.

5

As you might guess having been a teacher, I

6

am all for the schools and voted for both the new school

in Steward and the new high school in Rochelle, even

though my vote placed a disproportionate

land tax on two

9  of my siblings who live outside the school district and

cannot vote.

So I think farmers do have a reason to be

interested

in what happens in Rochelle.

12

I think the City Council in their vote

against expansion of the landfill

made a very wise,

14  well-thought-out, intelligent, sensible, and courageous

decision.

I would like to give you some more reasons

why we as farmers are so concerned.

First of all,

couldn’t the removal of prime class one soils around

19 Rochelle for a landfill be considered pollution? Soil

20  that can no longer be used to produce food and fiber,

21  the best soil in the world which has provided the

22 greatest quantity, the highest quality of food at the

23  lowest price in the world in proportion to incomes.

24

Second, we farmers have been very

Page 214

conscientious

about applying herbicides and insecticides

2  to the soil. At one time the EPA was very concerned

about Atrazine herbicide which we applied to our corn

4  fields. They said we should not use Atrazine anymore.

5  This was bad news to the farmers because Atrazine did

6  such a good, economical job of controlling weeds.

Chemical companies had to come up with other new, safe

S  chemicals to take the place of Atrazine.

9

This is a very lengthy, costly process for

the chemical companies; and they passed this extra cost

13.

down to the farmers.

Which means that the farmers’ cost

of growing corn is growing much higher.

13

Ironically I have just read recently of more

exact studies on the use of Atrazine which proves that

Atrazine wasn’t harmful in the first place.

We farmers

have worked especially

hard over the past 20 years to

keep our soil in our fields so that soil runoff will not

pollute ditches,

creeks, and streams.

We build grass

waterways, filter

strips along creeks and streams; we

20  have many other methods of controlling runoff.

21

We are particularly careful not to

contaminate the ground water which is our source of

drinking water.

Shouldn’t the city of Rochelle and the

24  Illinois Pollution Board be as concerned?

Page 

215

Now, I know that it has been said many times

2  by the promoters of expanding the landfill that there

3  will be no hazardous materials deposited in the landfill

4  and that the landfill will not leak and contaminate the

5  ground water. History has proved otherwise. At some

6  point in time the landfill will leak.

7

Third, if Rochelle is going to grow in leaps

and bounds as the city planners tell us, will we not

9  have enough of a problem taking care of the waste of

Rochelle and the community without taking garbage from

other cities?

No one can really convince me that the

12  big city planners and garbage haulers coming out from

the suburbs are not going to dump as much hazard

material as they can get by with.

15

When big cities, and I’m not talking about

16 Rochelle; but when big cities and city politics, power,

greed and money of these big cities get involved with

18  our garbage business, anything is liable to happen.

19

Lastly, there are other ways of disposing

20 waste material rather than burying it in landfills.

21 Couldn’t the City of Rochelle research ways of

22 converting waste into power and other useful materials

23 as many other cities do and thus do away with the odor,

24  the runoff, the huge amount of traffic with its

Page 216

1  problems, and all the possibilities of sicknesses that

2  could be caused by ground water pollution?

3

These new methods will not bring in all the

4  fees that cities and towns and counties now receive, but

5  they surely would do away with the pollution. We have

6  enough pollution in Rochelle without taking in more from

cities all over northern Illinois.

In summary, let me mention two points of

9  utmost importance that I think are true. One, since the

City of Rochelle is growing so rapidly, it seems to me

that the duty of the city should be to take care of the

12  garbage of only Rochelle and surrounding communities.

13  Why should the city have to worry about the garbage of

far-off cities?

That leads me to the second point.

It is

16 possible to take care of garbage without covering super-

prime farmland for eternity.

I am firmly convinced that

the City Council, which made such a wise decision in

19 voting down the landfill, has the intelligence, the

20 common sense, the talent, the moral courage and the

21 dedication to the well-being of this community to tackle

22 just such a challenge in order to dispose of garbage

23 without all the pollution of an expansion of the

24  landfill. And perhaps the garbage disposal company

Page 217

might take this modern technology into mind and go about

2  making their money that way. Perhaps the Illinois

3  Pollution Control Board could give them some help on

4  that subject. Those are my thoughts, and I thank you

for letting me speak before your Board.

6

HEARING OFFICER HALLORAN: Thank you, ma’am.

Any questions,

Mr. O’Brien?

MR. O’BRIEN:

No.

9

HEARING OFFICER HALLORAN: Mr. Porter?

MR. PORTER:

No.

11.

HEARING OFFICER HALLORAN:

Thank you, ma’am.

12  If we could refrain from clapping, this is kind of like

a court of law.

Anybody else want to come up? Okay.

Yes, sir.

Public comment or statement?

You want to get

sworn in?

HEARING OFFICER HALLORAN:

Okay.

Just state

your name and spell it for the record.

MR. BILL HAYES:

I am Bill Hayes, with two

l’s, B-i-l-l H-a-y-e-s.

HEARING OFFICER HALLORAN:

Thank you.

21

MR. BILL HAYES: Is that all you need?

22

HEARING OFFICER HALLORAN: Sure.

23

BILL HAYES,

24 having been first duly sworn, gave a public statement as

Page

218

follows:

I just have

one of the things I have been

2  looking at for a long time, I was on the county board

3  when we had the same kind of problem with the BFI at the

4  time of the Onyx expansion up on 251. I have studied a

lot of these problems.

One of the things that I

6

don’t 

nobody can give me an answer.

And what happens

if this doesn’t go through for the people

if it

8  doesn’t pass? Is there anybody responsible for putting

in the layer of the presently operated

new layer of

10  the presently operated landfill, and what’s that going

to cost and who pays it?

Is the city responsible,

12  client responsible? Who is responsible for this

13 magnanimous, probably millions 

more than a million

dollars clean-up?

And I think that should

and

here’s another thing.

People should

I have asked

16 many people, and I haven’t gotten any answer. Anybody

here can answer that?

HEARING OFFICER HALLORAN:

I think that’s

more rhetorical.

You can proceed and I guess find your

20  answers elsewhere. This is just a forum to make public

21  comment or statement.

22

MR. BILL HAYES: That’s all. I haven’t been

23 able to find that out.

24

HEARING OFFICER HALLORAN: Any questions,

Page 219

Mr. O’Brien?

MR. O’BRIEN:

No.

HEARING OFFICER HALLORAN:

Mr. Porter?

4

MR. PORTER: No.

HEARING OFFICER HALLORAN:

Thank you, sir.

hope you find the answer to your question.

MR. BILL HAYES:

Okay.

HEARING OFFICER HALLORAN:

Anyone else at

9

this time?

Yes, ma’am.

MRS. ELLEN HILL:

Comment.

HEARING OFFICER HALLORAN:

Comment.

Okay.

Thank you, ma’am.

MRS. ELLEN HILL:

My name is Ellen Hill,

and

14  I live near Creston, although my mail comes Route 2,

Woodlawn Road, Rochelle.

There is some Rochelle

residents

who do not know where Rochelle’s

landfill

located.

It is located on the very west edge of the

village of Creston.

Creston’s water tower is nearby.

Creston’s grade school is about half to three-quarters

mile away, and Creston’s wells are less than a mile

away.

It has been proven that there is an aquifer under

22 the current landfill. We are told in the mid ‘90s that

23 the landfill was leaking.

24

I have lived in Creston area for more than 50

Page 220

years.

And in that time I can name almost 50 people of

2  my friends who have either died of cancer or are cancer

survivors.

Within the last two years, we have had two

4  Creston people in there early SOs, born and raised in

5  Creston, who have had kidney cancer. It is my

6

understanding

that this is a rather rare type of cancer.

This scares me.

8

Is it fair that Rochelle dumps on another

9  town and may be contaminating their water? Rochelle’s

wells are on the same aquifer as Creston but farther

away from the landfill

than Creston wells are.

Do you

12 think this is worth a gamble? I don’t, and I sincerely

thank the Council for their decision against the

landfill

expansion.

Thank you.

HEARING OFFICER HALLORAN:

Thank you, ma’am.

Anyone else at this time?

Yes, please step up.

MS. JANET STALHEBER:

Just comment,

HEARING OFFICER HALLORAN:

Okay.

MS. JANET STALHEBER:

My name is Janet

20 Staiheber. I live within the city of Rochelle and vote

21 within the city of Rochelle. My question is, why are we

22 here? I sat through all of the hearings whenever it

23 was, February, March, back. I was here when the City

council voted against expanding the landfill.

And, you

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1

The technology supposedly is going to solve

all of our problems, just like the last landfill

liner

technology which is now leaking is going to solve all of

4  our problems. The only thing that’s going to solve our

problems, friends,

is integrity and responsibility.

6

can take the responsibility

for our own waste and other

7  people, other cities can take the responsibility for

their waste and deal with it effectively.

9

Did you know that a large percentage of the

10  trash that we generate that’s the recycled stuff is

being bought by China?

And they’re using it very

effectively

to make all kinds of neat stuff because we

don’t have the will to do it ourselves.

I asked about the benefits for Rochelle.

the landfill

expansion were to go through, what will we

get from it?

And what kind of guarantees

are going to

be put up that, one, it will never, ever leak, never,

under any circumstances,

and that no one will ever get

sick or die or that the land and the water will never,

ever be polluted?

Is somebody willing to put up enough

money in an escrow account to take care of any of these

22 problems should they arise? I sincerely doubt it.

23

Again, it’s all about integrity and

24  responsibility. That’s what is going to solve our

Page 223

1  problems and a little forward thinking, not relying on

2  technology and not looking at the all mighty dollar.

3  Thank you.

4

HEARING OFFICER HALLORAN: Thank you, ma’am.

S  Anyone else at this time, comment, statement? And I

6  will 

yes, sir.

7

MR. ROGER BEARDIN: Good afternoon.

8

HEARING OFFICER HALLORAN: Would you like to

be sworn in or give public comment?

MR. ROGER BEARDIN:

Public comment.

HEARING OFFICER HALLORAN:

Okay.

Thank you.

MR. ROGER BEARDIN:

My name is Roger Beardin.

I live on 18725 Illinois

East Route 38.

Our property

backs up to the landfill.

The only thing that separates

us from the landfill

is the railroad track.

We have

quite a few concerns against the landfill

going in, one

of them first being traffic.

The traffic

going to be coming in as the

19  semis coming down 38 are going to be turning right next

20  to my mother’s property where my brother and my mother

21  live at. They have widened supposedly this turning

22  section, which is fine. They have put in a turning lane

23 to turn onto Mulford Road; but for the traffic coming

off of Mulford Road back onto 38, there’s no accel lane

Page 224

or any place for these people to accel to when they pull

2  back on the highway headed back for Rochelle. You’re

3  going to have a slow truck with traffic coming over the

hill with no place to go.

So there’s a very large

concern of traffic

coming down through there.

6

They’re wanting to open the landfill at 4:00

7  o’clock in the morning. All these truck drivers get

8  paid by the load. So if that landfill is going to open

9  at 4:00 o’clock in the morning, we’re going to be

sitting

there at 3:00 o’clock in the morning waiting to

get in this landfill.

So we’re going to be having

12  traffic coming in front of our houses down through

13  there. The house is very close to the road now since

14  they’ve widened it. It’s close to Mulford Road.

If it does go through, they’re going to want

to take Mulford Road and widen Mulford.

Our land is for

farmland.

It’s not for a road.

We don’t feel that we

18 want to sell land. At that time it’ll have to be

19 approached.

One of our other concerns is water.

We have

21  two houses on this farmland. We’re within a half mile

22 of the landfill. The landfill says we will give you

23  well protection. Okay. If you have got well

24 protection, it’s fine. If it does contaminate the

Page 225

water, what are they going to do for us?

You’re not

2  going to drill a new well if the water down there is

contaminated unless you want to drill down into farther

4  contamination, the same way with Creston and everybody

S  else.

If it contaminates the water, it’s all done.

7  They’re not going to go fix it. They’re not going to go

8  clean it. It’s our source of water. 30 years ago, did

you buy bottled water?

No.

We didn’t have any worry

about water.

Now you buy water.

You’ve got water in

your house because you don’t know what you’re drinking.

12 You go buy water and keep it in there because we don’t

13  know.

So if you come and ruin my well, where am I

going to get water at? Where is

my

brother and his

family going to get water at? Where is Creston going to

get their water from?

You’re not going to truck it in.

You’re not going to keep purifying it.

So we have got a

concern about that.

Also the landfill

used to have a

has a

21 drainage ditch running through the middle of the

22 property. People say they’re going to take and

23

change 

--.

take the drainage ditch out, put a water

24  retention pond in to catch the drainage, water coming

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Page 

227

1

Like they say, how many times do we have to

2  keep telling people that we don’t want it? If it has to

3  go down state, I’m sure everybody that has sat in here

4  and talked, they’re willing to go down state and say the

5  same thing. Pay our money to go down there. We’re

6

fighting

we’re arguing with a big identity. They

7  have got lots of moneys. All their hearings, they pay

the people to come up here and talk big bucks.

The last

9  hearing they asked one of the ladies, and she told how

much she was paid to be a professional

witness.

Okay.

Everybody that’s talking in here, they’re not

professional

witnesses.

They’re the people that live in

Rochelle.

They’re the people that live in Creston.

keep telling everybody, we don’t want it.

They voted

the people of Rochelle voted in their City

Council, and the City Council listened to what they

said; but here we are again saying we don’t want the

expansion.

There’s so many concerns here that it just

boggles your mind.

You know, you could go on and on and

on; but, you know, you just don’t know where to stop.

That’s my feelings on it, and I appreciate you taking

the time to let me come up and talk and express my

opinions,

saying anything.

If there’s any questions?

Page

228

HEARING OFFICER HALLORAN:

Thank you,

Mr. Beardin.

The Board appreciates

your time.

MR. ROGER BEARDIN:

Thank you.

4

HEARING OFFICER HALLORAN: Anyone else at

this point in time?

I see no hands.

I spoke to soon.

6  Sir?

7

HEARING OFFICER HALLORAN: You want to give

comment, sir, or statement?

9

MR. THOMAS VILLA: Comment, sir.

HEARING OFFICER HALLORAN:

Just state your

name and spell it for the record.

MR. THOMAS VILLA:

If I don’t speak up, I’m

going to say to myself tomorrow, tonight, why didn’t I

open up? Why didn’t I say something?

I thank you for

the opportunity.

My name is Tom Villa, spelled like

villa.

I live at 1261 Tilton Park Drive.

I have been a

resident of Rochelle for about 30, 35 years, close to

it.

I was appointed to the landfill

committee,

and I am no expert, not in the least.

I knew nothing

about landfills;

but here I am, I was appointed to the

landfill

committee.

And I was to sit there and make

some kind of decision and judgment about what the city

was going to do.

So with the help of the computer, with

Page 229

the help of friends,

I was able to solicit

some material

2  from the EPA, a lot of watch groups on the computer; and

3  it gave me some sleepless nights.

are in a situation in this town like other

towns that are on record of having their water

contaminated.

We have Cell One that I don’t know how

7  long it’s been in operation or been there. I know that

8  I have been here 30 years, and 30 years ago we were

remodeling a house on Lincoln Highway; and I was using

my father-in-law’s

station wagon to get rid of some

lumber and drywall.

12

And so I pulled into the landfill. They told

13 me where to go. And as I’m throwing the stuff out of

the back of my van, station wagon, up pulls this

humongous, humongous truck next to me, and out started

oozing I don’t know how many tons of hog heads and hide

and blood and crap and slime.

It got on my father-in-

law’s truck.

We couldn’t get the smell off the tires

and off the truck, off my shoes, out of my nostrils

for

20 a long time, long time.

21

And I thought 

at the time I didn’t know.

22  It was just like one of those deals where you’re not an

23  expert. You don’t know what’s going on. That’s one of

24 the things they dump into a landfill. Fine.

Page 230

i

Well, later I find out that the EPA put out

2  some regulations, and a lot of that stuff that was being

3  dumped into that landfill can’t be dumped there anymore.

4  So years and years of this crap that was legally put in

at the time is in the ground.

And after all the

research that I did, as I said, I had some sleepless

7  nights because I realized that every time it rains,

every time it snows, that seepage gets into that cover;

and it sinks a little more, penetrates a little more,

and gets into that crap and just starts that oozing

again.

12

It’s on record. It’s on record that there

13  were a lot of violations out there where the leche was

flowing.

That thing is full.

And I want to tell you

folks, we’re going to pay some day for that No. 1 Cell.

The other thing that I want to say that

the comment that I really want to make at this point as

I’m leaving you, it seems disgraceful

that a council who

listens to the people is being penalized and being

20  scrutinized for their decisions. It’s disgraceful.

21 Thank you.

22

HEARING OFFICER HALLORAN: Thank you,

23 Mr. Villa. Anyone else at this point in time. Okay.

24 Mr. Porter?

Page 231

MR. PORTER:

I have one witness.

First

all, did Counsel rest?

3

HEARING OFFICER HALLORAN: Counsel did rest.

4

MR. PORTER: I have one witness. It’s

Mr. Helsten.

I call Charles Helsten to the stand.

HEARING OFFICER HALLORAN:

Mr. Helsten?

THE WITNESS:

Good afternoon,

Hearing

8  Officer.

9

HEARING OFFICER HALL,ORAN: Raise your right

hand, and the court reporter will swear you in.

CHARLES HaSTEN,

called as a witness herein, having been first duly

sworn, was examined and testified

as follows:

DIRECT EXAMINATION

BY MR. PORTER:

16

Good afternoon.

So, Mr. Heisten,

where do you work?

Hinshaw & Culbertson.

I am a partner,

residence

in the Rockford office.

I hear you have some of the finest help

22  available. Who did you represent at the time that the

23  City of Rochelle 39.2 hearings were commencing?

24

A.

I represented City Staff.

Page 232

At some point on April 28th, 2003, did you

2  telephone Mr. Holmstrom?

3

A.

Yes.

4

Why?

5

A.  we should back up for me to explain to give

you full explanation

as to why I contacted Mr. Holmstrom

7  on April 28. On Friday, I believe it was April 25th,

8  the morning after the vote, I contacted City Staff and

said I would like to approach the City Council in a

10 public meeting so we did not have any ex parte problems

and point out to them that there is only one regulated

12  recharge zone in the state of Illinois as a matter of

13 law. That’s located in Tazewell County outside east

Peoria.

And as such their determination

that

this

was on Criterion

9 that, in essence, this was within a

regulated recharge zone was against the manifest weight

of the evidence.

I said, while I’m there because I like to be

a cautious practitioner,

I would also like to ask the

20 Council to consider adopting the conditions in the event

21 there was ever a reversal. It wouldn’t constitute

22 conditional siting. As I said, that Monday night,

23 April 28th, I said it’s not considered conditional

24 siting.

Page 233

I just would like you to consider that.

2

I asked City Staff to both put it on the

3  agenda because we were coming down to the end of the

4  time period that this City Council, the one that

5  considered the application, would be holding office. I

also said we need to send notice out in

the

siting

7  proceeding as well to the parties, to the participants

S  because although we are taking it up as part of the City

9  Council meeting which we can, it’s really a part of the

process.

It’s really a part of the siting process.

On Monday, early afternoon,

I was in the

Chicago area.

I called Mr. Saletros

(phonetic)

again to

see if it was on the agenda and if notice had gone out

to the participants.

I learned at that time that it was

on the agenda, but that notice had not gone out under

16 the siting caption, under the caption of the siting

matter to the participants

such as the applicant

Rochelle waste Disposal,

LLC, and to the Concerned

19  Citizens of Ogle County.

At that point in time, here was my thought

21 process. I want to make sure that the applicant and the

22  objectors have actual notice of the fact that I am going

23 to appear on Monday night and present these issues to

them.

So I better get on the phone.

My first call

Page 234

would have been to Mr. O’Brien had I remembered his

2  phone number. I could not remember Mr. O’Brien’s phone

3  number other than the 639 prefix.

4

However, since Mr. Holmstrom, as he said, is

5  also counsel for the applicant, I have his number

memorized because I have dealt with Mr. Holmstrom for

7  years, both in Rochelle where we had permitting issues

where I represented the City and he represented

the

landfill

on the host agreement where he was

when we

negotiated

that when he was on one side and I was on

another side.

There’s another site where he represents

12 the operator Freeport, and I represent the city.

13 So I knew his number by heart.

I was on the road in the West Chicago area,

DuPage County area.

So I dialed him up.

what I told

Mr. Holmstrom is I had intended that you get both

separate notice that it would be on the agenda and that

18 it would be put on the agenda. I just called City

19  Staff, and I understand that it is simply on the agenda;

thereby, I am giving you notice.

21

Mr. Holmstrom and I then had a conversation

22 which is roughly consistent with the memo that was

23  introduced other than the last paragraph of that where

24 we talked about certain things. I said I’m not sure

Page 235

1.     that the City Council will even entertain it tonight.

2  They may entertain it. They may not. Or because you

3  didn’t get notice as part of the siting proceeding, they

4

may

kick it over to Wednesday night; but I emphasized to

5  Mr. Holmstrom, wednesday night is the last night that

they could act.

7

Q.  Why was that?

Because the City Council

the new City

9  Council I believe was empaneled on Nay 1st, 2003. That

was my recollection.

Okay.

So we’re clear,

at any time did you

12  tell Mr. Holmstrom that no action would be taken on

13  April 28th, 2003?

No.

I told him specifically

I was going down

there to put the matter before the council,

whether

they considered it or not was another matter is what I

told him.

And you relied on Mr. Holmstrom then to

contact his counsel, Mr. O’Brien?

I asked him to contact Mr. O’Brien if he

would.

22

And

23

A.  After that I called Mr. Mueller who

24 represented the Concerned Citizens, got his voice mail,

Page 236

left him a voice mail message consistent

with or

2  substantially similar to the conversation I had with

3  Mr. Holmstrom.

And did you attend the City Council meeting

on April 28th, 2003?

A.

Yes.

7

Q.  And did anybody on behalf of the applicant

attend?

Yes, I remember Mr. Hilbert being there.

Mr. Gelderloos may have been there, too; but I remember

Mr. Hilbert being there and speaking.

12

MR. PORTER: Nothing further.

13

HEARING OFFICER HALLORAN: Thank you. Before

14  you proceed, Mr. O’Brien, I want to make the record

15 clear, the document Mr. Helsten was referring to I

believe is Petitioner’s

Exhibit No. 22.

Thank you, Mr.

O’Brien.

(Petitioner’s

Exhibit No. 23

was identified.)

CROSS-EXAMINATION

21

BY MR. O’BRIEN:

22

Mr. Helsten, I want to show Petitioner’s

23  Exhibit 23 which is Respondent’s Request to Admit to

Petitioner

and ask you to take a look at that document.

Page 237

1.

2

3

4

S  quick

MR. O’BRIEN:

MR. PORTER:

MR. O’BRIEN:

MR. PORTER:

Do you have it?

I don’t have it with me.

I only have one copy.

I’ll look over his shoulder real

Yes.

And basically

the request to admit was you

were asking us to admit what had happened in the phone

exchange between you and Holmstrom, is that right?

A.

I think so.

And you characterized

that in Paragraph 3.

Would you read Paragraph 3 into the record as to how you

characterized

what occurred?

It says, “Mr. Helsten left a phone message

informing Mr. Holmstrom that the City Council of

Rochelle, Illinois,

may reconsider its vote on several

issues pertaining

to the siting proceedings had in this

Yes

7

BY MR. O’BRIEN:

8

Mr.

Porter

drafted it

12

Did you draft that request to admit?

I can’t remember if I drafted it or if

since he was doing some of the discovery work

and provided it to me for my review.

Did you sign it?

13

16

18

21

23

24

Page

238

matter at its regularly scheduled meeting of Monday

2  evening, April 28, 2003.”

3

Q.  So you were asking us to admit that all you

4  had done was leave a phone message for Mr. Holmstrom?

That’s what it appears now, but I can tell

6  you my best recollection is 

and I don’t know if this

7

is a disconnect between Mr. Porter and I, and I signed

this without looking at it carefully,

which 

I have been

9  accused of doing because I’m on the run a lot; and

10  that’s my sin to which I will readily confess, but I 

11 my best recollection is I talked to Mr. Holmstrom.

12

Q.  But you said in the request to admit, which

13 was prepared on August 8th?

Yes.

Which was much closer to the incident,

that

all you did was leave a phone message for Holmstrom?

That’s what the request to admit says, but as

18  I stated I might not have looked at it closely.

Well, let me just understand,

Mr. Helsten,

20 are you uncertain as to whether you actually talked to

Holmstrom?

No.

I believe I did talk to him on the

23 phone.

24

Q.  So the request to admit, regardless of who

Page 239

drafted it, you or Porter, is inaccurate to the extent

2  that it says you merely left a phone message?

I believe so, yes.

4

MR. O’BRIEN: No further questions.

5

HEARING OFFICER HALLORAN: Thank you.

Mr. Porter?

7

MR. PORTER: Nothing further.

8

HEARING OFFICER HALLORAN: You may step down,

9  Mr. Helsten. Thank you very much.

MR. O’BRIEN:

I’ll have to make a copy of

this to put it in the record.

HEARING OFFICER HALLORAN:

At break.

13

MR. O’BRIEN: I would offer that document.

HEARING OFFICER HALLORAN:

While we are still

on the record, Petitioner’s

Exhibit No. 15

16

MR. O’BRIEN: That’s the END.

17

HEARING OFFICER HALLORAN: Yeah. I don’t

18  remember you offering this.

19

MR. O’BRIEN: I said that we had agreed that

20 it’s

by stipulation, it’s simply a copy of the video.

21

HEARING OFFICER HALLORAN: Oh, okay.

22

MR. O’BRIEN: Right?

23

MR. PORTER: I have never seen the DVD. If

24  indeed it is just a copy of the 

video, I believe that

Page 240

the hearing officer has already allowed it over my

objection.

HEARING OFFICER HALLORAN:

Indeed,

if it is a

4

copy, subject to Mr. Porter’s comments, I will admit it

into

MR. O’BRIEN:

It’s a bookmark copy, in other

7

words, you can switch ahead to the particular

shots that

I wanted to get to; but it has the whole video on it.

9

HEARING OFFICER HALLORAN:

Petitioner’s

10

Exhibit No. 15 is admitted.

(Petitioner’s

Exhibit No. 15 is

admitted into evidence.)

MR. O’BRIEN:

And 23, the Request to Admit

drafted by Hinshaw.

MR. PORTER:

I would object to the relevancy.

It was our request to them to which I believe they

denied.

MR. O’BRIEN:

But it characterizes

Mr. Helsten’s version of the initial

exchange between he

and Mr. Holmstrom.

I think it’s relevant.

HEARING OFFICER HALLORAN:

Mr. Porter?

MR. PORTER:

If I can respond to that.

Mr. Holmstrom admitted that he spoke to Mr. Heisten,

and

Mr. Helsten said he admitted that he spoke to Mr.

Page 24~

Holmstrom.

So I just don’t see how that’s relevant.

HEARING OFFICER HALLORAN:

I think it’s

relevant.

It may be overkill,

but I think I will admit

it over Mr. Porter’s objection,

Petitioner’s

Exhibit 23;

5

and you’ll give me a copy of that.

6

(Petitioner’s

Exhibit No.

23

was

7

admitted into evidence.)

MR. O’BRIEN:

I will.

Would it be

satisfactory

to put that in the mail to you tomorrow?

HEARING OFFICER HALLORAN:

I think you can

copy it now.

Mr. McKinney has been very, very good at

that.

I may have to do this again; but before I forget,

I’m supposed to make a credibility

determination.

MR. PORTER:

Mr. Hearing Off icer, we haven’t

rested

yet. 

I just have some exhibits,

as well.

HEARING OFFICER HALLORAN:

I just wanted to

put it on record before I forget.

Mr. Porter, before

you forget,

you can

- -

MR. PORTER:

I’m sorry to interrupt.

HEARING OFFICER HALLORAN:

That’s okay

because I have tendency to forget.

MR. PORTER:

You normally do that at the

end of the hearing.

I have just four exhibits that

Mr. O’Brien has agreed to stipulate

to.

It’s

Page 242

Respondent’s Exhibit 3 which is a certified

copy of

the agenda for the April 28th meeting, as well as

Respondent’s Exhibit No. 4 which is a certified

copy of

the general published schedule of City Council meetings

which references

that a meeting would indeed occur.

HEARING OFFICER HALLORAN:

I’m sorry.

7

Respondent’s Exhibit No. 3 is a certified

copy of the

April 28th meeting?

MR. PORTER:

Agenda of the April 28th

meeting.

HEARING OFFICER HALLORAN:

Okay.

I’m sorry.

MR. PORTER:

And Respondent’s

4 is a copy of

the schedule of regular meetings of the Rochelle City

Council, which references

that a meeting would take

place on that date.

Respondent’s Exhibit 5 is a copy of

the minutes to the April 24th, 2003, City Council

meeting; and Respondent’s Exhibit 6 is a copy of the

April 28th, 2003, minutes to the City Council meeting.

And I believe Mr. O’Brien has stipulated

to all of

those.

MR. O’BRIEN:

So stipulated.

HEARING OFFICER HALLORAN:

Terrific.

They

are admitted.

(Respondent’s Exhibits Nos. 3

Page 243

through 6 were admitted into

evidence.)

MR. HELSTEN:

May I speak with Mr. Porter for

a second?

HEARING OFFICER HALLORAN:

Sure.

We can go

off the record for a few minutes.

7

(A brief recess was taken.)

HEARING OFFICER HALLORAN:

Back on the

9

record.

MR. PORTER:

First,

I would offer all of

those, and were they admitted?

MR. O’BRIEN:

No objection.

HEARING OFFICER HALLORAN:

They were

admitted.

MR. PORTER:

Second, I do have one additional

witness.

He was on Mr. O’Brien’s witness list which

would be Mr. Hilbert.

HEARING OFFICER HALLORAN:

All right.

Please, raise your right hand, Mr. Hubert,

and Tracy

will swear you in.

THOMAS A. HILBERT,

called as a witness herein, having been first duly

sworn, was examined and testified

as follows:

DIRECT EXAMINATION

Page 244

BY MR. PORTER:

Good afternoon.

State your name for the

record?

4

My name is Thomas Adams Hilbert,

spelled

H-i-1-b-e-r-t.

And how are you employed?

7

I am employed by Winnebago Reclamation

Service.

9

Q.

Which was

were you employed by the

applicant at issue in this case?

Yes.

And you are still employed by the applicant

at issue in this case, correct?

Yes.

Isn’t it true that you were e-mailed all City

of Rochelle agendas when they came out?

I do now receive the Rochelle City agendas by

e-mail

Did you receive them as of April 24th of

2003?

No, I did not.

Did you attend the April 28th, 2003, meeting?

Yes, I did.

24

MR. PORTER:

Nothing further.

Page 245

HEARING OFFICER HALLORAN:

Thank you.

Mr. O’Brien?

MR. O’BRIEN:

No questions.

HEARING OFFICER HALLORAN:

You may step down.

5

Geez, I almost forgot again.

Here we go.

I’m supposed

to make a credibility

determination

of the witnesses

7

that testified

here today; and based on my legal

experience and judgment, I find that there are no issues

of credibility

with any of the witnesses that have

testified.

With that said, I think we are going to

want to take a 30-minute break for a number of reasons.

We’ve got some housekeeping matters regarding

post-hearing

briefing schedule.

I want to give an

opportunity

for any members that may want to speak or

make a comment to come here.

My knee-jerk reaction

this point is this has ended a little

sooner than I

anticipated,

and I think

and I’m a little

leery about

letting us all go at 4:00 o’clock.

So I am going to

have to beg your indulgence,

and I think I’m going to

leave the hearing open until 6:00 o’clock to

see

if any

members of the public are still out there coming in

after work to make a comment.

I want everybody to have

an opportunity

to speak if they so choose.

With that

said, I think we’re going to take a 35-minute break.

Page 246

1.

We’ll be back here at 4:00 o’clock, and we will talk

2

then.

Thank you.

(A recess was taken from

3:20 p.m. to 4:05 p.m.)

HEARING OFFICER HALLORAN:

We are back on the

6

record.

It’s approximately 4:10.

Off the record the

7

parties discussed a briefing schedule; and based on my

calculations,

the transcript

will be ready and hopefully

9

on our website on December 22nd.

With that said, public

comment is due to be filed January 5th. The Petitioner’s

opening brief is due to be filed January 16th, 2004.

The City’s response,

the Respondent’s response is due

February 6th, 2004.

Petitioner’s

reply, if any, is due

February 13th, 2004.

And the Petitioner

has stated that

he is going to waive the statutory

decision deadline to

and including April 29th, 2004; and he will send in a

written waiver of that sort.

With that said, I would welcome I guess at

19

this time any further public comment, public statement.

And what I plan to do is after the public statement,

public comment, is take a break for a little

while.

And

if nobody comes in, you know, prior to 6:00, I’ll

probably close the hearing then.

And I will not be back

tomorrow.

The notice says December 10th and 11th it

Page 247

will continue as necessary.

If we wrap it up today, we

wrap it up today.

But I should digress, Mr. O’brien,

would you like to give a closing?

MR. O’BRIEN:

Mr. Porter and I have agreed to

waive closing and do it in our written briefs.

HEARING OFFICER HALLORAN:

Thank you very

7

much.

Okay.

Any further public comments, statements?

Yes, sir.

Would you like to be give public statement or

comment.

Would you like to be sworn in then?

MR. CLIFF SIMONSON:

Yes.

CLIFF SIMONSON,

having been first duly sworn, gave a public statement as

follows:

My name is Cliff Simonson, S-i-m-o-n-s-o-n,

154 Park Avenue, DeKalb.

I am also on the DeKalb County

Board and on the planning committee; but my testimony

tonight is as individual testimony.

I am not

representing

the board.

I’ll give some of my background in brief to

shed more light on my testimony.

I got my Ph.D. in soil

and plant science, but I had over 80 hours of course

hours in chemistry and over 40 hours in biological

sciences.

And my career has a lot of it gone into those

two areas.

It’s basically

split into soils, terrain and

plant use, one kind or another, or into areas of

Page

24S

chemistry.

Detailed soil surveys I began in Illinois,

spent two years on the Illinois

State Soil Survey, One

of the years in Iroquois County where I mapped soils.

About half of the soils in DeKalb County and in eastern

Ogle County are soils that I mapped in Iroquois County

7

back in 1940.

Then I mapped also detailed surveys in

the state of Maryland and in British Ganna in South

9

America.

I carried out the world’s only soil survey by

helicopter,

a Bell G 47 with pontoons on it, about 5,000

square miles of fresh water marshes and swamps in

British Ganna.

That would be about seven times the area

of DeKaib County, maybe six times the area of Ogle

County.

I spent six years in strategic military

intelligence

doing soils, terrain and the movement of

all kinds of vehicles and troops over about 7 million

square miles in Europe and Asia, 13 countries.

That

19

would be about two-and-a-third

times the size of the

United States in that period of time.

Most of the information was in foreign

languages which Americans don’t generally bother to

read; but if you read foreign language from other

countries,

you get quite a different picture of that

Page 249

country than you do reading what the Americans say about

foreign countries.

I will start with the

we’re in a global

4

economy whether we like it or not.

And in that economy

with the world as a whole, we’re adding about 380,000

people born per day, a growing population

and a

7

shrinking availability

of soils.

The first global

survey of farmland in the United States was done about

four, five years ago.

And they have concluded that half

of the agricultural

land in the world is sick; that due

to salinity

and erosion and other problems, that only

about half of the current land is in decent shape.

And

it’s shrinking.

In the United States we started out with

about 600 million acres of suitable

farmland.

We’re

losing approximately one-and-one-half

million acres a

year, mostly to urban sprawl.

And we think we’ve got

unlimited amounts of land, but we’re importing more and

19

more products.

We’re exporting less and less products.

The last figures I saw made by the Illinois

and State Farm Bureau had from 1992 to 1997.

In 1992

our surplus of exports over imports of agricultural

products was 26 billion dollars.

Five years later it

was down to 12 billion

dollars.

There will come a time

Page 250

not too far down the road when our farmland is not going

to supply all of the agricultural

products that we need,

and we will have to be importing.

And when that time comes, I predict that from

having traveled in foreign countries and seeing what

prices are there and the subsidies that are given to the

farmers there to produce those goods, that our prices

for agricultural

products is going to somewhere between

double and triple when we reach that stage.

Right now

we are importing more than 40 percent of all the fruits

that we consume in the United States.

Going on down then to the other half where

most of my life has been spent, chemistry,

I spent the

four war years in 1942 to ‘45 in chemical warfare

research.

And there were 60 of us at Northwestern

University working in pairs or trios over a variety of

approaches to dealing with poison gases and other

problems in chemical warfare.

19

And I was fortunate to be working in an area

where I came up with the answer, developed a catalyst

that neutralized

the poison gas the Germans were ready

to use in World War II.

They had tens of thousands of

gallons of it up behind the front lines ready to go.

They never turned it loose because they never had

Page 251

protection

against it; we did.

2

I made the first batch August 17th, 1942, and

continued with that.

After we wrapped up our projects

at Northwestern,

I was transferred

to the University of

Illinois

where, working with a nuclear physicist,

developed the spray to knock out the Anopheles

7

mosquitoes and control malaria out in the Pacific

theater because we were losing more casualties

9

malaria than we were Japanese gunfire.

Once we developed that solution,

the

engineers took over and made a new exhaust manifold to

put on fighter planes that were used to go in and lay

down the sprays before any Americans went ashore.

After the war, then I taught analytical

chemistry for three semesters at the University of

Illinois,

Champaign-Urbana; and my students broke every

record in the book for laboratory grades.

My entire

class had an A average in their laboratory experiments.

19

I was able to pass on my expertise

in the

laboratory

to my students.

Much of the rest of the time

I was with the

before I came to Maryland

Illinois,

I was with the U.S. Department of Agriculture

Beltsville,

Maryland, and doing research in soil, plant,

animal relationships.

Page 252

In 1968 I came to Northern Illinois

University to teach earth science in which I taught six

different

courses in soils, world-soil geography,

conservation

of natural resources.

Then to

going off

on to the hearing examiner’s area, I took in the first

EPA state of the art conference in Philadelphia

in 1980.

7

And then they moved them to Cincinnati where I attended

five or six of those conferences in the ‘80s and ‘90s.

And they dealt with one area of toxic chemicals.

The

other one was dealing with landfills.

And the one thing that showed up there, they

gave the success in experiments

successes and

failures of the different

experiments they were running,

and the liners were showing up with one failure after

another, no matter

and this was state of the art

where they were reporting the newest research from

government, from universities,

from other organizations.

I just want to close with a few comments

about the general characteristics

of chemical compounds,

organic and inorganic.

I have worked with hundreds of

them including a whole lot of toxic ones, but a number

of them that aren’t so toxic, as well.

Inorganic metals

and elements are practically

all susceptible

24

reactions with other chemicals in their environment.

Page 253

The only ones that practically

are not

affected by their environment are the noble metals

especially

platinum and iridium.

And I had the pleasure

of when I worked at Beltsville

for a few years of

working with practically

all the platinum-ware

and

iridium-ware

that the U.S. Department of Agriculture

had.

We could run it 168 hours a week for a while; and

then because somebody stole some of it downtown, then we

9

had to put it in a safe every night, which cut you back

from using the stuff 168 hours a week to 40 hours or

more a week.

Going to organic chemicals, all organic

chemicals react with some things in their environment.

There’s no such thing as a durable organic compound.

And that includes your liners because they undergo

changes due to the environment they’re in.

They will

dry up.

They will crack.

They will have other problems

in there.

It’s impossible to make anything out of

organic material that has the kind of sustainability

that, by the way, farmland has.

I have walked on soils in China that have

22

been farmed for more than 4,000 years.

I have walked on

soils in northern Europe and Scandinavia that have been

farmed for over 2,000 years.

Actually farmland, farming

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Page

255

of farmland the highest and best use, using the real

estate terminology.

The Netherlands

did it in 1933.

Great Britain did it in 1947.

And actually what the British did, it even

went up on the totem pole above the right of eminent

domain.

Eminent domain still

remains in the English

law; but if you use it, you cannot convert agricultural

land into any other use.

You have to leave it, and

that’s every other developed country in the world.

Either we’re a lot smarter than the rest of the

countries are, or we’re are a lot dumber.

I will let

other people decide.

But that is

those are facts and figures

that bear down on this case like they bear down on any

other case where we’re considering

destroying

the best

farmland in the world.

By the way, from all I’ve seen,

Drummer silty clay loam is still

the best soil in the

world when it’s properly tile drained.

And in DeKalb

County, 98 percent of our soils

and in the eastern

part Ogle County you have got similar soils;

98 percent

in DeKalb County is made up of the best soils,

topography and climate in the world.

And it’s being

destroyed at a pitiful

rate.

So that is my testimony.

If there are any questions,

I will be happy to answer.

Page

256

HEARING OFFICER HALLORAN:

Thank you, sir.

Mr. O’Brien?

3

MR. O’BRIEN:

I have no questions.

HEARING OFFICER HALLORAN:

Mr. Porter?

5

MR. PORTER:

No questions.

HEARING OFFICER HALLORAN:

Thank you.

You

7

may step down.

Anybody else?

I know there was a

8

sign-up list back there, and it looked like, I don’t

9

know, at quick glance maybe 45 people signed up; and I

think there’s probably been 16 or 17 speakers so far.

That’s just as an aside.

I guess speak now or forever

hold your peace.

I will come back and open up the

record again depending on when we leave here right now.

Anybody else at this time?

HEARING OFFICER HALLORAN:

Were you up here

before?

MS. JANET STALHEBER:

Yes, I was.

May I

speak again?

HEARING OFFICER HALLORAN:

Sure.

As a

comment or a statement?

MS. STALHEBER:

I will make a statement

this

time since we’re talking about some facts here.

JANET STALHEBER,

having been first duly sworn, gave a public statement as

Page 257

follows:

During the break, I ran home and got my notes

from the City Council meeting where they voted on the

3

acceptance or rejection of the landfill.

As I was

sitting in the audience listening to the questions,

seemed that there was some indication

that, perhaps, Mr.

6

Beardin was attempting to influence City Council

7

members.

And the only consistency

in the voting on the

proposal on all nine criteria

was Mayor Gingrich who

9

voted yes on all criteria.

Everyone else had mixed

votes.

And looking at them, how many yes votes, there

were a total of 45 votes, 5 Council members and 9

criteria

they voted on for a total of 45 votes.

And there were 27 yes’s and 18 no’s, giving

us a 60 percent,

that’s with Mayor Gingrich’s votes.

we discount his total yes vote, we have 18 yes, and 18

no out of a total of 36; which is 50 percent yes and 50

percent no.

So whatever you’re trying

if you’re trying

to influence them, Mr. Beardin, I am afraid it probably

didn’t work; and I can assume that they voted on the

basis of what they learned at the hearings.

Oh, and just one other little

thing.

I

grew

up on a farm near Madison, Wisconsin.

And after I was

married, we lived here in Ogle County out in the country

Page 

258

near a number of farms.

And I have never ever seen a

farmer, I have never even known of a farmer who would

3

build his manure pile next to his well.

4

HEARING OFFICER HALLORAN:

Please try to

refrain from clapping.

This is a hearing.

Anybody

else?

Yes, ma’am.

7

MS. WOLANDA THUESTAD:

I would just like to

give a comment.

HEARING OFFICER HALLORAN:

Okay.

MS. WOLANDO THUESTAD:

I am Wolanda Thuestad,

T-h-u-e-s-t-a-d.

And I live at 7756 South Locust Road.

That’s about three-quarters

of a mile south of the

landfill.

And I have taken vacation days from my work

to be here during these proceedings,

and I took vacation

days in the spring to be at the siting hearing.

I could

have gone almost anywhere on my vacation days, but I

chose to be in Rochelle, sitting

in on some important

and interesting

hearings about my future.

Yes, I think this landfill

expansion will

affect my future.

It’s going to affect all of us in

negative ways if it gets approved.

Most of us here in

this room listen to testimony from experts,

both pro and

23

con.

We have all learned a great deal.

I certainly

would have learned nothing if I had gone fishing on my

Page 259

vacation days.

I also feel the Rochelle City Council members

3

learned a great deal regarding a landfill,

its

construction,

its composition,

the daily activities,

and

the closer procedures.

I feel the Council members

listened to the testimony and voted for what was in the

7

best interest

of the community they served.

There was a community referendum,

and again

9

that’s just Rochelle people, no other communities could

10

vote, just Rochelle; and they had a 74 percent vote no.

That’s 74 percent.

That’s a very loud voice on any

issue, a very loud message.

And it’s also a very clear

message.

The Rochelle City Council members didn’t take

a vacation from their responsibilities,

and I want to

thank the Council members for listening

to all of the

evidence and voting on the facts.

Thank you.

HEARING OFFICER HALLORAN:

Thank you, ma’am.

Next?

Yes, sir.

MR. THUESTAD:

I will just give comment.

NEARING OFFICER HALLORAN:

Okay.

Terrific.

MR. THUESTAD:

Like I said, my glasses broke,

but I will try.

HEARING OFFICER HALLORAN:

I got a cheap pair

Page

260

of Wallgreen’s 1. 25.

MR. THUESTAD:

That’s all right.

My name is

3

Roger Thuestad, that’s T-h-e-u-s-t--a-d.

I also live at

4

7756 Locust Road, Rochelle, Illinois.

And it’s located

three-quarters

of a mile south of the existing landfill

6

in question.

I would like to thank the Rochelle City

7

Council for not only hearing the applicant’s

material

requesting the expansion of the present landfill

from 80

9

acres to 320 acres once, but a second time.

You listened to many expert witnesses

provided by the applicant.

You listened to public

comment from many concerned citizens,

and you read

letters

from residents

filed with the City Clerk.

You

had a lot of information

from which you could base your

decision.

I believe your decision was not biased in any

way, nor do I think that you had your mind made up

before hearing all of the evidence.

As a concerned citizen,

none of us had any

idea which way the vote would go; but I believe the

evidence spoke for itself,

and you made the correct

decision based on the nine criterion.

After the first

hearing, the applicant Rochelle Waste Disposal withdrew

its application.

One would assume for a lack of being

able to prove their case.

Page 261

The hearing officer,

Christine Zeman, on this

first application

finished her report.

She felt that

3

the applicant did not meet the criteria with this

application.

After hearing the evidence for the second

application,

the Rochelle City Council voted the

landfill

expansion down.

When in session, the hearing

7

officer for the second hearing felt the applicant met

the criteria;

but he went on to add 50 specific special

conditions.

This hardly seems as though it was an

10

outright endorsement of the facts.

Water protection was a big issue in this

application.

This application

is located over the

aquifer that provides the people of Rochelle, Creston

and rural residences with their water supply.

Some of

these rural, private wells are shallow, about 150 to 160

feet deep.

These wells could become contaminated quite

easily

these wells could become contaminated quite

easily during contamination

of the shallow aquifer, and

Rochelle Waste Disposal in their application

only wanted

to provide protection for people’s water and real estate

value for a distance of 1,000 feet around the perimeter

of the landfill.

This included about three residents.

That’s an awful amount of risk for so little

protection.

This landfill

expansion application was

Page

262

proposing to increase its daily tonnage per day from 250

tons to 2,500 tons with 2,000 tons per day coming from

3

transfer stations.

This would increase truck traffic

4

from 

trucks per hour to 22 trucks per hour.

This led

to concerns over traffic

safety especially

for our

children.

Some ride the bus to the Creston Grade

School.

Some ride the bus to the Rochelle High School,

while some may drive to either Kishwaukee Community

College or Northern Illinois

University.

There could be

as many as 200 semis a day traveling

in and out of this

landfill.

I am proud of this Council for looking past

the dangling bait of shear tipping fees and considering

the long-term effects of the health, welfare and safety

of this community.

Thank you.

HEARING OFFICER HALLORAN:

Thank you, sir.

Yes, sir.

MR. EKEERG:

I’d like to make a statement

okay.

HEARING OFFICER HALLORAN:

Raise your right

hand, and Tracy will swear you in.

DEAN EKBERG,

having been first duly sworn, gave a public statement as

follows:

My name is Dean Ekberg, E-k-b-e-r-g.

I am a

Page 263

resident of Rockford, Illinois,

4332 O’Connell Street in

Rockford.

I am also a doctoral student at NItJ in

3

hydrogeology.

I got my Bachelor’s Degree in geology

from Wheaton College.

I got my Master in Science Degree

from University of Missouri at Rolla, Rolla, Missouri,

6

in geological engineering.

And I am currently a year

7

into my doctoral studies in hydrogeology at NIU.

So I drive by

drive down 38

come down

9

39

and drive in 38 into school pretty much every day.

Because of the commute, I am considering moving to

Creston.

One of my concerns is about this landfill

that’s been talked about or extension that’s been talked

about.

As a hydro

also I have worked in Africa as a

hydrogeologist

developing water resources,

water supply

in Zimbabwe, Liberia,

Sierra Leone and Ganna.

So I have worked a lot with water supply, and

my current doctoral research is in ground water in

northern Illinois,

particularly

in the fractured

limestone.

I have got a lot of concerns about this

particular

site.

As a hydrogeologist,

there is several

factors that concern me about this extension of the land

for the Rochelle landfill.

Probably the biggest problem

that I have with this siting is the proximity of the

Page

264

Creston municipal water supply wells to the east side of

the Rochelle landfill.

The distance,

which is about a

3

half a mile, 2,500 feet, whatever, from the landfill

the water wells is a serious concern.

The second major thing is that the landfill

by the tracks there, the railroad tracks,

is underlane

7

by a sand-and-gravel

aquifer.

It’s a tributary to the

Rock bedrock valley.

The tributary valley runs east!

west.

The flow is east toward the Creston water well.

The Creston water well is actually right in the Rock

bedrock valley.

It’s a north/south valley about 250

feet deep.

And that is underlane by the Saint Peter

sandstone which is where the Creston wells get their

water

So aside from the “liner,”

quote, unquote,

that’s underneath the landfill

the current landfill

or any future liners that would be under extensions of

the landfill,

once those are compromised

and the

other gentleman testified

as far as the durability

organic compounds in liners.

Once that liner is

compromised, you are in direct communication with the

sand and gravel in the tributary

aquifer which is in

communication

and the flow is toward the Creston

wells which are in the main rock valley; and then that

Page 265

is in communication with the Saint Peter sandstone.

you have got a direct conduit once the liner is

3

compromised with the municipal water supply.

4

So those factors tied together raise grave

concerns as far as the safety of the people of Creston

and rural

the people on private wells surrounding the

7

landfill

site.

Just running some quick numbers on just

regular Darcy flow, you can come up

depending on the

gradient that you’re talking about, how far down the

10

Creston well draws the water level when they switch on

their pumping, anywhere from 2 to 10 years.

Once the

liner is compromised, you have got about 2 to 10 years

before the water reaches the water well.

And that to me

that’s assuming 30 percent

porosity,

assuming .005

either

.0005

.05 or .001

on the gradient;

and that’s a serious concern when you

are siting something.

You have got to look at how safe

is Creston with their water.

As a hydrogeologist,

would say it’s not a very good gamble.

Once a community

losses their water supply, it’s not good.

I also have been observing the landfill

operation that William Charles has up in the south of

Rockford called Pagel Pit as another example of how well

they do with landfills;

and that’s currently a super

Page 266

fund.

So I guess they’re not doing too good of a job;

but there’s been a lot of pollution that’s spread out

3

from Pagel Pit, and it’s concerned a lot of the

residents around Pagel Pit.

But the fact that this one is also leaking in

the proximity to everybody’s water supply, as a

hydrogeologist

I have got a lot of concerns.

And it

concerns me because I’d like to move to Creston, and it

raises a lot of red flags with me.

I appreciate the City Council that turned

this down this spring and two years ago, and I’d just

like to express my appreciation

for that.

Thank you.

HEARING OFFICER HALLORAN:

Thank you.

Mr. O’Brien?

MR. O’BRIEN:

No questions.

HEARING OFFICER HALLORAN:

Mr. Porter?

MR. PORTER:

No questions.

HEARING OFFICER HALLORAN:

Anyone else?

Yes, sir.

Would you like to make public comment or be

sworn in?

MR. GEORGE BALSTER:

Sworn in.

HEARING OFFICER HALLORAN:

Tracy.

GEORGE BALSTER,

having been first duly sworn, gave public statement as

Page 267

follows:

Thanks for hanging around here.

I actually

was planning on doing this tomorrow, so I’m glad I got a

3

call and was able to do this today.

My name is George

Balster,

spelled B-a-l-s-t-e-r.

I live at 401 West

North Street in Creston, Illinois.

I would say that

of course, we said no to

this landfill expansion once, and then we said no twice;

and I am here to say no again.

I applaud the Rochelle

9

City Council’s decision as in the past.

Putting a mega

dump literally

on the top of a city and village is a bad

idea.

And I think the previous person talked about

proximity.

I think that’s my biggest problem with this

whole thing.

And I am just going

I don’t think anything

has changed on this whole deal.

I have given basically

the same talk every time I have come here.

And so I am

just going to reiterate

my concerns for this issue

this issue.

And I understand there’s only so much that

you can say about this topic, and I’m sure that

everybody that’s heard this hashed over and over have

heard the same points maybe over and over again; but I

think it’s important that this occur because the scope

of this decision

because of the scope of the decision

that’s being made.

Page 268

This decision will be one that will affect

two communities,

not just one, and future generations.

3

So it darn well better be the right decision.

I did

4

bring one exhibit with me today.

This is the third trip

for the pickle jar full of garbage.

I think when we talk about this issue and we

talk about a landfill

or a sanitary landfill

or a dump,

but it’s still garbage.

And it’s basically

a smelly and

toxic combination of everything that’s leftover

from

society.

My question has always been in the past, and

it’s still a question that I have is what good is there

in this garbage?

Why would Rochelle actually invite a

company to dump thousands of tons of this garbage on our

back door?

And the other thing is, also, has anything

really changed since the last landfill

application?

would say definitely

not.

I think the first point is that there really

was no need two or three years ago for this expansion as

far as our local needs, and there’s no need now.

have ample capacity for our future needs, and we do not

need to be the dumping grounds for all 20 counties of

northern Illinois.

No. 2, we would be putting a huge mega dump,

as I mentioned before, between the city and the village;

Page 269

and especially

as far as Creston is concerned, I’m

2

concerned that with the prevailing winds, basically we

3

are going to have the stench of garbage in Creston as a

4

common occurrence.

And as a bi-product

of that, I know

when the first application

was made, they were trying to

make a point that our property values were going to go

7

up because of this.

I will just tell you that I have lived in

Creston since 1996; and if this proposal had been on the

table then or there had been a dump there, there’s no

way that I would have moved to Creston.

and if it

comes, I’m actually going to leave.

So I just don’t

see, you know

I see the only way for this to go as

far as property values is down.

Geology of this area has stayed the same.

we put this in there, basically we’re putting in a mile

long, man-made bathtub; and it’s not as tight as this

pickle jar, for sure, with a heavy potential

for leaking

into our water resources.

The liner that we are

supposed to rely on for this proposed dump has only been

in existence for a few years, not generations.

So the bottom line is let’s not be naive

enough to think that we can fix the soil and water after

it’s been polluted.

I just don’t think it’s possible.

Page 270

Another point is that the local traffic

Highway 38 is still the same or worse.

In traveling

3

from 

Creston to the Nelson Road west of DeKalb, which I

4

do every day, I have counted as many as 85 cars in those

10 miles.

Huge trucks, not pickup trucks will be

hauling in 2,500 tons or more of garbage instead of the

7

current 300 tons a day.

I just can’t imagine mixing 200

semi trucks or whatever the number is going to be a day,

mix that with bad weather and college and high school

students that are in a hurry, I think you’re

Highway 38, and I think you’re asking for a lot of

trouble.

There have been some improvements on Highway

38 on the Ogle County side.

There has been a turning

lane put in at Mulford Road, but I think this is merely

going to speed up the traffic.

I don’t think

it’s

still a two-lane road, and there’s not enough room for

semis and cars on the same road.

The cost of road repairs is high, and I

just

one of my concerns is who is going to pay for

this.

These trucks are not going to use the interstate

I don’t believe because of the tolls.

The other point is this is a limited

liability

company.

If this dump has problems and leaks

Page 271

after the dump is full and the company is gone, who is

going to pay for this even if it’s correctable?

That’s

3

a basic question.

In closing, if we really care about our

future generations

in this community, just ask this

basic question again.

Why would we even consider having

7

tons and tons of this smelly and toxic material dumped

next to our city and village?

The potential

is very

high for polluted air, water and soil.

I know that

there is a potential

for millions of dollars of profit

for the landfill

companies, whoever they are going to be

at the time as the years go by and if this goes through.

But my play on this is I think what we have here as a

community as far as our air and our water and the soil

is priceless,

and it shouldn’t be for sale.

We do not

want the title of the biggest dump county in Illinois.

And I know there’s been

I know the first

time or the second time I came to the hearings,

I came

in the morning; and I saw these people bringing in

literally

armfuls of boxes and binders full of technical

material.

If the health, safety and welfare of the

public of these communities is taken into account, the

answer to this problem lies in the realm of common sense

and not in a mountain of binders filled with arguable

Page 272

facts.

I think that’s important.

So I just

it’s

2

just a bad idea to put a dump right on top of two

3

cities.

4

I have served on numerous boards when I lived

in DeKalb County including the Board of Health.

I have

never had to make a decision concerning the dump; but in

7

this case, I would strongly urge that you uphold

previous verdicts on this issue for the reasons

9

presented.

I applaud the Rochelle City Council’s

previous decisions.

Thank you very much.

HEARING OFFICER HALLORAN:

Thank you.

Mr. O’Brien?

MR. O’BRIEN:

No questions.

MR. PORTER:

No questions.

HEARING OFFICER HALLORAN:

Thank you.

You

may step down.

Anyone else?

Yes, sir.

MR. THOMAS VILLA:

Can I speak from here?

HEARING OFFICER HALLORAN:

Did you speak

already,

sir?

MR. THOMAS VILLA:

Yes.

HEARING OFFICER HALLORAN:

We are normally

limited to one time.

I know I let the lady do it.

you could stand up here maybe.

You want to make a

comment or a statement?

Page 273

MR. THOMAS VILLA:

Comment.

Thomas Villa.

HEARING OFFICER HALLORAN:

V-i-1-l-a?

3

MR. THOMAS VILLA:

V-i-l-l-a.

Two days ago,

three days ago I’m driving to DeKalb; and for whatever

reason I go on the Creston Road.

And I see where

they’re putting down a huge liner.

My question is:

that part of the land that they have control of, or are

they just making this expansion without the authority?

Go look and see for yourselves.

It’s a huge liner.

Okay.

Thank you.

HEARING OFFICER HALLORAN:

Thank you, sir.

had another hand back there I think.

Yes, sir.

MR. JOSEPH WIEGAND:

I’d like to make a

statement,

sir.

HEARING OFFICER HALLORAN:

Okay.

Thank you.

Raise your right hand, and the court reporter will swear

you in.

JOSEPH WIEGAND,

having been first duly sworn, gave a public statement as

follows:

Good evening, sir, my name is Joseph M.

Wiegand, spelled W-i-e-g-a-n-d.

I live at 32486 White

Street,

Fairdale,

Kirkland, 60146.

And I thank you for

the opportunity to address the hearing officer this

evening

Page 274

In the last month, I have had the opportunity

to review the transcripts

of the first and second

hearings,

the minutes of the siting

- -

the City Council

siting meeting, the Rochelle City Council minutes and

5

the filings with regards to this appeal both by the

petitioner

and by respondents;

and in my analysis,

the

7

issue on appeal is that

by the petitioner

is a claim

that their application

was not given fair consideration

and that

the

decision ignored the facts, that it was

contrary to the evidence presented at the hearing and

data contained in the application.

I wanted to just back up for a moment.

Like Mr. Simonson, I’m a member of the DeKalb County

Board and in that capacity have sat and reviewed public

hearings and participated

in public hearings in that

venue.

I have also done so here in Ogle County working

with the citizens of Monroe Township.

I also have an

extensive background in political

science especially

the

processes of American government and public policy with

a Bachelor’s Degree in political

science from the

University of the South in Sewanee, Tennessee,

two years

plus of graduate work at Northern Illinois

University in

those two fields and a graduate assistantship

at the

Center for Governmental Studies.

Page 275

My work has been awarded the Thomas Watson

Fellowship and the Harry S. Truman Scholarship.

I have

also studied public policy on the ground in Costa Rica,

South Africa, Italy, the Philippines

and South Korea;

but my passion is about American government.

And I was

alarmed today to hear in oral arguments an extension of

7

arguments petitioner

made in their filing for appeal.

And that is to call into question the actions of

citizens

in the public square when an issue of

importance is being considered by the decision-makers

their city or in any other governmental entity.

To hear this evening, this afternoon,

to see

evidence put into the record when that evidence is a set

of letters

to the editor to the local paper, which for

some folks in our community is the way that they get the

truth delivered to their doorstep.

They might not be

able to get out and attend a public hearing.

They might

not get out and attend a local government body, but they

read their local paper.

And the letters

to the editor balance and

augment the coverage that a newspaper writer,

a staff

writer might write in a story on a particular

item.

That phone calls to siting officials,

that is, the

sitting members of the City Council were made or that

Page 276

personal visits were made, I think the record has shown

throughout that City Council members were extremely

diligent and disciplined

in their refusal to discuss the

items of a pending or ongoing or concluded public

hearing with any of those folks who called them on the

phone or visited them at the door.

A word of praise is to be spoken for the city

fathers and mothers of Rochelle for their discipline

conducting their affairs.

But when you read the record

of the hearing, what is evident from the many days of

testimony that were given is that petitioner

in no way

proved conclusively

that they met the nine criteria

for

the expansion to be granted.

The evidence that was presented by objectors,

learned and scholarly evidence, folks who have a

thorough and expert understanding

of issues related to

hydrology and water contamination,

it is

I believe

any rational

judge, any rational

hearing officer,

any

rational member of the Illinois

Pollution Control Board

will be able to agree that petitioner

failed to

demonstrate that they met a need for the expansion; that

petitioner

failed to meet standards to protect the

public health, safety and welfare; that petitioner

failed to prove that they would not negatively affect

Page 277

the surrounding properties;

and that petitioner

failed

to prove that the increased traffic

for the proposed

3

expansion would not be detrimental

to the traffic

4

patterns of the immediate area.

But again I just want to reiterate

the

scariest

thing through this whole process, scarier than

the fact that folks down state might reverse and

overthrow a well-reasoned

decision of local decision-

9

makers is that through this process citizens might

actually be coerced or intimidated

from occupying the

rightful

place in the public square in writing or on the

telephone or in conversations

with one another or in

conversations

with decision-makers

who statutorily

cannot respond to what they hear.

It would be a chilling

and icy effect on a

public that in many ways is on life support in any case

with regards to its ability and its willingness

and its

belief that participating

in the system will actually

bring about good outcomes.

I would hope that the

Illinois

Pollution Control Board will not only sustain

the well-reasoned

and based-on-fact

decision of the City

22

Council, but that as they do so they will be careful

about the right of the citizens of the State of Illinois

to have their say on matters of public policy.

Page 278

appreciate the time of the hearing officer.

2

HEARING OFFICER HALLORAN:

Thank you, sir.

3

Mr. O’Brien?

4

MR. O’BRIEN:

No questions.

5

MR. PORTER:

No questions.

HEARING OFFICER HALLORAN:

Thank you, sir.

It’s now a little

after five.

Anybody else?

Yes,

ma’am.

Would you like to be sworn in or just a comment?

MS. JANICE CICH:

I’ll be sworn in.

HEARING OFFICER HALLORAN:

You’d like to be

sworn in.

JANICE CICH,

having been first duly sworn, gave a public statement as

follows:

My name is Janice Cich, C-i-c-h.

I reside at

304 East Cederholm in Creston.

After sitting

through

the first part of this afternoon’s

session and listening

to all of the questioning,

it appears that the

fundamental fairness of the decision made by the

Rochelle City Council as siting authority is being

questioned;

and that fact which I didn’t realize before

today changed a little

bit what I had intended to say in

my public comment.

During the course of all the landfill

hearings,

I have written many letters

to the editor; and

Page 279

most of my letters

were in response to information in

the newspaper provided by Rochelle Waste Disposal.

As I

recall,

before and during the hearings,

RWD had a weekly

4

column “Get The Facts.”

And the only way for ordinary

5

citizens to express their opinion and to present an

opposing view to those facts was through letters

to the

7

editor and letters

to the Council members.

It was

always my understanding

that members of the community

9

were 

allowed to give our opinion to the Council members.

I was here in this chamber on the night of

the night that the city attorney gave charge to the

Council members for the first siting hearing back in

I guess it was 2000.

And at that time he told them that

they could not discuss it with anybody after the

application

was granted, but they could listen to what

people wanted to tell them.

They just couldn’t discuss

it, that they were prohibited.

So I was always under the understanding

that

19

they could listen and that there was a difference

between listening

and actually discussing.

I believe

the siting authority was impartial and didn’t prejudge

the application.

And it appears to me that they weighed

the long-term potential

risk to the community.

Those

risks were all discussed thoroughly during the course of

Page 280

the hearings with a lot of conflicting

information

submitted.

Shouldn’t the views of the public be a

consideration

when weighing those risks?

Because the

siting authority is asking the public to live with the

consequences.

In my opinion,

a few of the important

7

issues that the siting authority considered were on

Criterion

1, the need.

The application

proposed 2,000

tons per day to come from transfer

stations outside of

Ogle County, in counties that prohibited

additional

landfills

being built in their jurisdictions.

Now, to preserve the life of the existing

landfill

by continuing to only accept Ogle County area

and Region 1 waste would ensure many years of site life.

And Criterion 2, the health, safety and

welfare, area residents are extremely concerned about

maintaining the quality of water in our wells.

Conflicting

testimony was presented as to the risk to

the aquifer.

Is any risk worth taking a chance?

Because we have been told that once the aquifer becomes

contaminated,

the water can never, ever again be used.

And as I recall at one point during the

hearings,

it was pointed out that there was missing data

from the operating information that was turned over to

Page 281

the CCOC technical

experts.

The applicant was allowed

to submit that missing data a few days later during the

hearings.

However, the hearing officer then denied a

request for additional

time to study this information.

Where was the fundamental fairness

in that?

In Criterion 6, the large trucks, they don’t

stop quickly or they don’t accelerate

quickly.

The Gap

studies don’t allow for the drivers who are impatient

and tired of waiting for a break in traffic before

pulling out to Mulford Road onto Route 38.

More than

once I have had to slam on my brakes to avoid hitting

truck that pulled out in front of me.

And increasing

truck traffic by over 250 percent will only make the

problem worse.

Now, it seems to me the obligation

of the

siting authority to consider everything submitted in the

application

and during the hearings,

as well as the

public comment given at the hearings and submitted in

writing was met.

The fundamental fairness

issue could

be invoked if they didn’t take into consideration

all of

that.

I believe they did their job.

I believe they

listened,

studied and voted on the merits of all the

information submitted.

And I sincerely hope that the

Pollution Control Board will uphold their decision to

Page 282

deny the expansion.

And I thank you.

HEARING OFFICER HALLORAN:

Thank you.

3

Mr. O’Brien?

MR. O’BRIEN:

No questions.

5

MR. PORTER:

No questions.

HEARING OFFICER HALLORAN:

Thank you.

You

may step down.

We’re on a roll.

Anybody next?

Yes,

ma’am.

MS. PATRICIA SANDERSON:

Thank you very much.

HEARING OFFICER HALLORAN:

Raise your right

hand, and Tracy will swear you in.

PATRICIA SANDERSON,

having been first duly sworn, gave public statement as

follows:

Like some of the others who have spoken, I

came

here 

in one capacity and find myself quite taken

aback by what’s apparently gone on here today.

My name

is Patricia

Sanderson.

I live at 2329 13th Avenue in

Rockford, Illinois.

I am a Rochelle native.

I was born

here and graduated from Rochelle Township High School.

I am here first of all today representing

children,

Grant and Loren Sanderson, who are trustees

for their grandmother, 88-year-old Frances Sanderson,

for whose benefit the land immediately east of the

current and proposed landfill

is held.

The land has

Page 283

been in the family for approximately

50 years.

After what I’ve heard from the testimony

3

since I arrived,

I also want to speak as a professional

journalist.

I have a Bachelor of Arts degree in

journalism from Drake University.

I also have a

Bachelor of Arts degree in organization

management from

Concordia University in River Forest.

I am a former

employee of the United States House of Representatives,

9

and I want to speak in that capacity, too.

The write of free speech in the United States

of America is the most fundamental right of our

democracy.

The City Council of Rochelle and the

citizens of Rochelle and Creston have spoken loud and

clear.

There should be no expansion of the landfill

question.

Common sense and science have converged to

confirm the denial of the application

is absolutely the

right decision to protect the quality of life in these

communities,

the value of local property,

and the health

of the citizens even those not yet born, and the general

safety of the community.

Importing garbage is a bad idea, one

wastebasket

full or 2,000 tons a day.

Heavy truck

traffic,

air pollution,

water pollution,

and wasted

agricultural

land do not enhance the quality of life or

Page 284

public health.

I sat through most of the hearings that came

to the

that brought the City Council to the decision

to deny this application,

and I strongly and firmly

believe that they were eminently fair.

For anyone to

suggest that local citizens

should not have the right to

express their opinions and concerns about a matter of

such incredible

importance to their community through

letters

to the editor in their newspapers, through radio

programs which I participated

in along with Frank

Beardin and others, and should be silenced,

is just

beyond my comprehension.

And I’m sure that you can hear in my voice

how passionately

I feel about this.

I cannot believe

that I’m sitting here in my own hometown hearing people

say that fellow citizens

should be denied the right to

speak out.

I sat in Congressman Anderson’s office years

ago day after day with people bringing forth to me and

then onto the congressman their concerns about what was

happening locally.

This is where democracy hits the

road folks, right here.

And the City Council has

spoken.

Local communities should and, in fact, they

must have the right to determine their own destinies.

Page

285

This is America.

We live in the world’s model

democracy.

The democratic process has spoken, and the

democratic process has worked.

Yesterday democracy lost one of its very best

friends in Senator Paul Simon, whom I had the privilege

of knowing and working with.

He was a champion for

matters just like this and believed in the absolute

essence of the fundamental democracy that’s been at work

right here.

Not coincidentally,

Senator Simon also owned

13 small-town newspapers; and he believed they were the

essence of what makes America great and makes it

possible for us to communicate with each other and that

they have an extraordinary

responsibility

to produce all

sides of all issues so that people can make up their own

minds.

Finally I want to remind you, and I don’t

need to in this town, that’s for sure, Teek Cortz

(phonetic)

was a friend of mine when I was child.

have got young people dying as we sit here right now to

protect democracy.

They’re dying in Iraq to try to give

people there what we have here.

Stop and think about

that.

The democratic process has worked.

The

overwhelming preponderance

of evidence is that this

Page 286

would be a horrible plight on this community; and it

must not be allowed.

I implore you as the hearing officer,

implore the Pollution Control Board to simply reaffirm

5

what these communities have said and leave their destiny

to the people in their own hands.

Thank you for hearing

me.

HEARING OFFICER HALLORAN:

Thank you, ma’am.

9

Mr. O’Brien?

MR. O’BRIEN:

No questions.

MR. PORTER:

No questions.

HEARING OFFICER 1-TALLORAN:

Anybody else?

have asked you before, and I appreciate

it if you

refrain from clapping.

Thank you very much.

Anybody

else wish to give comments, statement?

MR. BEARDIN:

Can I give a closing one after

everybody else?

HEARING OFFICER HALLORAN:

Let’s go now.

Mr. Beardin, statement or public comment?

MR. BEARDIN:

Statement,

under oath.

FRANK BEARDIN,

having been first duly sworn, gave a public statement as

follows:

Once again, Frank Beardin, B-e-a-r-d-i-n,

same

address as before.

All the people that have been here

Page 287

today have been

they live here.

This is their home

community.

Whether what they did or we did or I did was

right or wrong, we were out to protect what we have.

love this community.

We look out for our neighbors.

And we are very protective

of what we have.

There was

no one here today that spoke up for the dump

We are not paid to be up here

We’re just common, ordinary citizens who

each other and what we have once again.

will not put a price on our children’s

out for our future generations

because

lookout for our own, it’s very obvious

speaking.

look out for

We have not and

heads.

We look

if we don’t

that others will

And one last line out of Red Skeleton’s

breakdown on what The Pledge Of Allegiance stands for,

which I’m sure everyone has heard, the portion “And to

the Republic:

The republic is the state in which

sovereign power is invested in representatives

chosen

the people to govern.

And government is the people.

And it’s from the people to the leaders, not from the

leaders to the people.

Mr. Halloran,

I thank you for

everyone concerned

HEARING OFFICER HALLORAN:

your time, and

Thank you,

4

not

Page 288

Mr. Beardin.

Mr. O’Brien, any questions?

MR. O’BRIEN:

No.

HEARING OFFICER HALLORAN:

Mr. Porter?

MR. PORTER:

No questions.

HEARING OFFICER HALLORAN:

You may step down.

Anybody else?

If there’s nobody else right now, I plan

to--

MR. CLIFF SIMONSON:

I was going to turn in

three exhibits.

HEARING OFFICER HALLORAN:

Well, I can take

them as

I guess it’s already written

did you read

that into the record?

Is that what you read up here?

MR. CLIFF SIMONSON:

You want me to take an

oath again to put them in the record?

HEARING OFFICER HALLORAN:

Did you

MR. CLIFF SIMONSON:

These are three

HEARING OFFICER HALLORAN:

Did you read this

into the record before when you were up here?

MR. CLIFF SIMONSON:

Do you want me to read

the whole thing?

HEARING OFFICER HALLORAN:

You can either

there’s a lot in here.

You can submit it as public

comment.

MR. CLIFF SIMONSON:

I don’t want to take up

Page 289

any more of your time.

HEARING OFFICER HALLORAN:

That’s not the

issue.

There are quite a number of pages here.

You can

submit it as public comment.

You can send it into the

Board as public comment.

That will be no problem.

MR. CLIFF SIMONSON:

Will it go in with your

records here or not?

HEARING OFFICER HALLORAN:

Or I can take it

as public comment right now.

MR. CLIFF SIMONSON:

That’s probably the most

expedient way.

HEARING OFFICER HALLORAN:

And I don’t know

what public comment we’re in.

As of yesterday there was

only three public comments filed at the Board.

So I’m

going to hold off right now labeling this, but it will

be a public comment; and I will bring it with the record

and the transcript

to the Board.

Is that satisfactory?

MR. CLIFF SIMONSON:

That’s fine.

Thank you.

HEARING OFFICER HALLORAN:

Your name again

please?

MR. CLIFF SIMONSON:

Cliff Simonson.

It’s on

each document.

HEARING OFFICER HALLORAN:

There’s three

documents, and two of the documents there’s

Page 290

approximately

five or six pages on here.

MR. CLIFF SIMONSON:

That deals with the

farmland situation,

which is a very important national

and local issue.

HEARING OFFICER HALLORAN:

Thank you.

I’ll

take it as public comment back to the Board.

Thank you,

sir.

Any further comments or statements now or

we’re going to take a 15-minute break, and I’ll come

back and see if anybody else wants to do it.

But I

appreciate not waiting until the very last person

because we got to get moving.

So if you have to speak,

we can speak now.

Okay.

If not, I guess there will be

some newcomers coming in the room in maybe 15, 20

minutes.

But I plan to if in nobody else comes in by

6:00 close the record and close the hearing.

Thank you.

We are off the record.

(A brief recess was taken.)

HEARING OFFICER HALLORAN:

I think we are

going to go back on the record.

It’s approximately,

don’t know, two minutes to 6:00.

We waited around.

doesn’t look like anybody else wants to give public

comment and statements.

I see no hands.

I want to

reiterate

that public comment is due on January 5th.

Page 291

What I mean by that, you can slip it in the

mailbox on January 5th, and the Board will get it that

way.

I do want to give our address.

I think the media

has it, but it’s the Illinois

Pollution Control Board,

100 West Randolph Street,

James R. Thompson Center,

Suite 11-500, Chicago, Illinois

60601.

And you just

address it to the clerk of the Board, and she will get

it.

I also want to give you our website, and you

can get on there and punch in the case number; and it

will give you any kind of updates or recent statuses,

recent filings that have been had in this matter or any

other matter that for reason.

The website is

www.ipcb. state. il.us,

again www.ipcb.state. ii .us.

I also have another public comment, a person

came up and gave it to me.

So I will take that with my

other stuff, and I will give it to the clerk; and she

will file it as public comment.

It’s a public comment

from Lyle Heden.

I also want to note for the record

that I am taking the sign-up list,

and it looks like

I don’t know what I counted

maybe 24 people gave

comment, actually probably 26, but two of them did it

twice.

In any event, I will bring this back; and it

will be taken with the case, the sign-up sheet.

I think

Page 292

I will mark it Hearing Officer Exhibit 4.

(Hearing Office Exhibit No. 4

was identified.)

4

HEARING OFFICER HALLORAN:

I don’t know if

the mike is getting tired, but I do want to thank both

parties for their presentation

today.

I want to thank

the public.

As I said earlier,

the Board encourages

statements,

comments of any kind.

I also want to

9

especially

thank Mr. McKinney and the City of Rochelle

for their hospitality

and excellent accommodations.

If there’s no further questions?

Yes, ma’am.

MS. SANDERSON:

There were a couple of us

here who did not sign in.

Does that matter?

HEARING OFFICER HALLORAN:

No, it does not

matter.

You were on record, and we have got it

transcribed.

MS. SANDERSON:

The other question I have for

you, sir, is:

Will the members of the Pollution Control

Board have access to the actual vote of the City Council

on each of the nine points?

HEARING OFFICER HALLORAN:

Whatever is in the

record, they have.

I don’t have it in front of me.

MR. PORTER:

They have that.

That’s in the

record as well as the minutes of the vote.

Page 293

MS. SANDERSON:

So they will have the actual

vote.

MR. PORTER:

They have got it all?

4

MS. SANDERSON:

Good, because I was afraid

that some of the testimony might have been a little

misleading today; but if they have that, that will clear

itup.

HEARING OFFICER HALLORAN:

I see nothing

9

else.

Thanks again and have a safe drive home.

It’s a

little

icky out there.

Thanks.

Bye-bye.

(Whereupon1 the preceding hearing

concluded at 6:00 p.m.)

Page 294

STATE OF ILLINOIS

SS.

COUNTY OF WINNEBAGO

4

I, TRACY L. ABBOTT, CSR, a Notary Public

within and for the County of Winnebago, State of

Illinois,

do hereby certify that I am a court reporter

doing business in the State of Illinois,

that I reported

in shorthand the proceedings given at the Illinois

9

Pollution

Control Board Hearing on December 10, 2003, at

the Rochelle City Hall Council Chambers, 420 North Sixth

Street,

Rochelle, Illinois,

and that the foregoing is a

true and correct transcript

of my shorthand notes so

taken as aforesaid.

Tracy L. Abbott, CSR

License Number 084-003182

Notary Public, Winnebago County,

Illinois