ILLINOIS POLLUTION CONTROL BOARD
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v. AC 05-63
(IEPA No. 78-05 AC)
JOHN R. MALLOCH, (Administrative Citation)
Respondent.
Proceedings held on November 2nd, 2005, at 10 a.m., at the
City Hall Council Chambers, 102 N. Neil Street, Champaign,
Illinois, before Carol Webb, Chief Hearing Officer.
Reported by: Beverly S. Hopkins, CSR, RPR
CSR License No.: 084-004316
KEEFE REPORTING COMPANY
11 North 44th Street
Belleville, IL 62226
A P P E A R A N C E S
ILLINOIS POLLUTION CONTROL BOARD
1021 North Grand Avenue East
Springfield, Illinois 62794
(217) 525-8509
By: Carol Webb, Hearing Officer
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 North Grand Avenue East
Springfield, Illinois 62794
(217) 782-5544
By: Michelle M. Ryan, Special Assistant Attorney General
JOHN R. MALLOCH, Respondent
2
KEEFE REPORTING COMPANY
1 HEARING OFFICER WEBB: Good morning. My name is Carol
2 Webb. I'm a hearing officer with the Pollution Control Board.
3 This is AC 05-63, IEPA vs. Malloch. It is November 2, 2005, and
4 we are beginning at approximately 10 a.m.
5 I will note for the record that there are no members of the
6 public present. Members of the public are allowed to provide
7 public comment if they so choose.
8 At issue in this case is the EPA's allegation that the
9 respondent violated Sections 21(p)(1), (p)(3) and (p)(7) of the
10 Environmental Protection Act at 2572 County Road 600E in Dewey,
11 Champaign County.
12 You should know that it is the Pollution Control Board and
13 not me that will make the final decision in this case. My
14 purpose is to conduct the hearing in a neutral and orderly manner
15 so that we have a clear record of the proceedings. I will also
16 assess the credibility of any witnesses on the record at the end
17 of the hearing.
18 This hearing was noticed pursuant to the Act and the
19 Board's rules and will be conducted pursuant to Sections 101.600
20 through 101.632 of the Board's procedural rules.
21 At this time I will ask the parties to please make their
22 appearances on the record.
23 MS. RYAN: Michelle Ryan, Special Assistant Attorney
24 General for the Illinois EPA. I have my formal appearance here.
3
KEEFE REPORTING COMPANY
1 HEARING OFFICER WEBB: Okay.
2 MS. RYAN: The one on top is the original. Nine copies and
3 one for you there.
4 HEARING OFFICER WEBB: And, Mr. John Malloch, you are here
5 representing yourself; is that correct?
6 MR. MALLOCH: That's correct.
7 HEARING OFFICER WEBB: Okay. Are there any preliminary
8 matters that we would like to discuss on the record?
9 MS. RYAN: No.
10 HEARING OFFICER WEBB: Ms. Ryan, would you like to make an
11 opening statement?
12 MS. RYAN: Yes. We believe that the evidence will show
13 that on March 2nd, 2005, open dumping resulting in litter, open
14 burning, and the demolition of construction or demolition debris
15 in violation of 21(p)(1), (3), and (7) of the Act occurred at the
16 property located at 2572 County Road 600E near Dewey in Champaign
17 County, Illinois. That's all I have.
18 HEARING OFFICER WEBB: Mr. Malloch, would you like to make
19 an opening statement? You're not required to do so.
20 MR. MALLOCH: It says on my paperwork affidavit conducted
21 by an inspector of the site in Douglas County, Illinois, known as
22 the John R. Malloch site, so I think this is not right.
23 HEARING OFFICER WEBB: Okay. And you will have an
24 opportunity to present your case after we hear from the EPA's
4
KEEFE REPORTING COMPANY
1 witness. Ms. Ryan, would you like to present your case?
2 MS. RYAN: Yes. We call Mike Mullins to the stand.
3 HEARING OFFICER WEBB: Mr. Mullins, would you like to have
4 a seat up here so the court reporter can hear you a little
5 better?
6 MR. MULLINS: Okay.
7 HEARING OFFICER WEBB: Would you please swear the witness
8 in.
9 (The witness was sworn by the reporter.)
10 DIRECT EXAMINATION
11 QUESTIONS BY MS. RYAN:
12 Q. Can you state your name and spell your last name for the
13 court reporter?
14 A. Mike Mullins, M-U-L-L-I-N-S.
15 Q. And where are you employed?
16 A. Employed with the Environmental Protection Agency at the
17 Champaign field office.
18 Q. In what position do you hold there?
19 A. I'm environmental protection specialist. I do field
20 investigations for solid waste type materials.
21 Q. How long have you been employed with Illinois EPA?
22 A. Seven years.
23 Q. And have all of those been a field inspector?
24 A. That is not correct. I had a couple of years at the
5
KEEFE REPORTING COMPANY
1 Division of Laboratories and I have four and-a-half years as
2 field inspector.
3 Q. Was the Division of Laboratories in Champaign?
4 A. That is correct.
5 Q. What are your duties as a field inspector?
6 A. I go out and primarily do solid waste inspections. That
7 includes landfills, open dumps, composting facilities, salvage
8 yards, these type of facilities as well as I do cleanups,
9 supervise cleanups for the state of Illinois.
10 Q. Okay. Over the four and-a-half years that you say that
11 you were conducting inspections, how many inspections would you
12 estimate you would have done?
13 A. I've done about 400 inspections plus or minus a few.
14 Q. Okay. What is your educational background?
15 A. I have a Bachelor of Science in agriculture. I also
16 have a Bachelor of Science in biology and some additional studies
17 in chemistry.
18 Q. And in addition to your education, have you had
19 additional training?
20 A. I've had additional training both in my previous career,
21 which was the United States Army, as well as the Environmental
22 Protection Agency as well has placed me in various courses which
23 involves solid waste type matters, asbestos, ground waters,
24 investigations of landfills, air pollution, these type of
6
KEEFE REPORTING COMPANY
1 matters.
2 Q. Are you familiar with the property located at 2572
3 County Road 600E near Dewey in Champaign County?
4 A. Yes, I am.
5 Q. Mr. Malloch had mentioned earlier that the affidavit
6 that was attached to the Administration Citation that was signed
7 by you indicated that the property was in Douglas County. Is
8 that -- is that where this property is located?
9 A. No, the property is actually in Champaign County. That
10 obviously was an administrative error in my affidavit.
11 Q. Okay. But are you familiar with the property we are
12 talking about?
13 A. Yes, I am.
14 Q. Where is that property located?
15 A. That property is located at that physical address 2572
16 North and 600E. It would be about four and-a-half miles south of
17 the City of Fisher or about six miles southwest of Dewey.
18 Q. Okay. Who owns that property?
19 A. According to the deed that I got from the Champaign
20 County Courthouse it's owned by John R. Malloch.
21 Q. How many inspections have you conducted at this
22 particular property?
23 A. I've conducted two.
24 Q. And was the first one the one that is the subject of
7
KEEFE REPORTING COMPANY
1 this Administrative Citation?
2 A. That's correct, the March 2nd, 2005, inspection.
3 Q. Mike, I've handed you what I marked as Exhibit 1. Can
4 you look at this document and tell me whether you recognize it?
5 A. I -- I do recognize the document.
6 Q. What is it?
7 A. It's the field inspection report that I did after the
8 site inspection on March 2nd, 2005.
9 Q. And I see that you're paging through there, could you
10 continue to do that through the end? Does this -- is this a
11 fair, accurate, and complete copy of the report that you
12 prepared?
13 A. It is.
14 Q. Can you generally describe the property that's the
15 subject of this inspection?
16 A. Okay. The property at that location is really separated
17 into two parts, a north part and a south part, separated by a
18 stream or a small river which is thought to be the Sangamon
19 River. The property on the north side is -- has a wooded area
20 and then it's surrounded by open farm fields. The area south of
21 the -- of the river is the area that I was out on March 2nd and
22 there's only a few trees there, and it's primarily a farm field.
23 Q. Okay. There -- Excuse me. Is there a fence around this
24 area of the property, the south area of the property?
8
KEEFE REPORTING COMPANY
1 A. There was no observed fence at the property.
2 Q. Is there any other means of restricting access to this
3 portion of the property?
4 A. There was none that I observed.
5 Q. Who took the photographs that are attached to the back
6 of this report?
7 A. I took the four photos.
8 Q. If you could look at, starting with Photo Number 1, can
9 you describe what is shown in the photograph?
10 A. Well, Photograph 1 was what -- what caught my concerns
11 when I arrived at the property. I could see smoke north of the
12 entrance and so that photo is of an area I would term as a burn
13 area that has smoke. Apparently there had been some wood burning
14 there and there was some metal in there that would be consistent
15 with maybe springs out of a sofa or a chair. And then behind
16 this burn area then was other debris, metals, plastics as well as
17 equipment such as a crane and a motor home.
18 Q. Does the material in the central photograph, there
19 appears to be sort of a white haze under it, was the pile
20 actually burning while you were there during the inspection?
21 A. I observed no flames. It was only the smoke and -- and
22 the odor of the smoke.
23 Q. But the white haze that we can see in the picture, would
24 that -- would you characterize that as smoke then?
9
KEEFE REPORTING COMPANY
1 A. I would -- Yes, that is --
2 Q. Rather than some fault of the camera or the printer?
3 A. Where I was not the fault. There actually was smoke.
4 Q. Okay. Were there any other materials in that pile there
5 besides the sofa spring and the wood you mentioned?
6 A. Well, there was some metal and it appeared that all of
7 the stuff that could burn had already been burned, so there was
8 just primarily ash.
9 Q. Okay. But if you would like to move to Photograph
10 Number 2 and describe where that is?
11 A. Okay. Photograph Number 2 is of the same area. It's a
12 large area of about 250 feet estimated in diameter and this would
13 be panning to the left of Photo 1. And this area consists of
14 small shards of debris which would be some metals, some plastics,
15 some larger pieces of lumber that did not completely burn as well
16 as what appeared to be either insulation or fibrous material,
17 maybe even clothing.
18 Q. Okay. And moving then to Photograph Number 3?
19 A. I took Photograph Number 3 primarily to annotate that
20 there was a lot of tires on this site. These are waste or
21 considered waste or used tires. But also on that photo again is
22 a motor home that I do not know if it's functional, the large
23 metal tanks as well as the trackhoe or construction piece of
24 equipment and some scrap rusted metals.
10
KEEFE REPORTING COMPANY
1 Q. Do you have an estimate as to how many tires are in this
2 photograph here?
3 A. It would truly be an estimate, but there's probably
4 roughly around 100.
5 Q. And finally Photo Number 4?
6 A. Photo Number 4 I took to show, as I was leaving the
7 property right next to the road, which would be 2550 North, the
8 entrance of the property was an area that had possibly been used
9 as a burn area and prior to -- to my visit. And in that was a
10 pallet or appeared to be a composite material pallet and some
11 other ash as well as on the left side of that appears to be a
12 metal or plastic sink which I considered possibly to be waste.
13 Q. And is that the road there visible in the upper right
14 corner of the photo that you're referring to?
15 A. That is correct. It's 2550 North. It's an east-west
16 road.
17 Q. If we could return to Photograph No. 1, I think.
18 There's an item in the center of the photograph on the far left
19 side it looks like it may be a cinder block, is that what that is
20 there in the middle?
21 A. Yes, that is a cinder block that's turned with the two
22 holes up and down and vertical.
23 Q. Okay. Were there other materials that you observed in
24 this pile or elsewhere on the property that you had characterized
11
KEEFE REPORTING COMPANY
1 as construction or demolition debris?
2 A. Well, in Photo 2, not knowing what all of the fibrous
3 material was, if it's consistent to insulation, then that could
4 be, as I saw, demolition debris as well as the concrete block.
5 But also the larger pieces of dimensional lumber may have come as
6 a result of either wrecking a building or a mobile home.
7 Q. And the fibrous material you're referring to, does that
8 include the little pink blobs that are shown in the photograph
9 here, is that pink color accurate to your recollection to the
10 color of the material on the property?
11 A. The pink color is accurate.
12 Q. Do those four photographs accurately depict what you saw
13 on the south side of the property on that day?
14 A. Yes, they do.
15 Q. When was this report generated?
16 A. It was generated within 10 days of the inspection. I
17 don't know the exact date that I had it done. I'm going to guess
18 within five because it's such normally how my -- my inspections
19 go.
20 Q. Okay. Does the Illinois EPA keep these reports in the
21 regular course of its business?
22 A. Yes, they do.
23 MS. RYAN: At this time I would like to move Exhibit 1 into
24 evidence.
12
KEEFE REPORTING COMPANY
1 HEARING OFFICER WEBB: Do you have any objection, Mr.
2 Malloch?
3 MR. MALLOCH: No.
4 HEARING OFFICER WEBB: Exhibit 1 is admitted into evidence.
5 MS. RYAN: That's all I have.
6 HEARING OFFICER WEBB: Mr. Malloch, do you have any
7 questions that you would like to ask this witness?
8 MR. MALLOCH: No.
9 HEARING OFFICER WEBB: Okay. Thank you. You may step
10 down. Ms. Ryan, do you have anything further to present at this
11 time?
12 MS. RYAN: I do not.
13 HEARING OFFICER WEBB: Okay. Mr. Malloch, I will allow you
14 to present your case at this time. Okay, Mr. Malloch, this is
15 your opportunity now to present your defense as you, you know,
16 alleged in your petition, so you may just speak.
17 MR. MALLOCH: What you see here in this photo is a concrete
18 block which we used to block up the tongues of the trailers and
19 stuff when we unhook from them.
20 HEARING OFFICER WEBB: Which photo are you looking at?
21 MR. MALLOCH: Number 1. I don't see any other material in
22 there that would be considered burning or anything. That's all I
23 have to say about Photo Number 1.
24 HEARING OFFICER WEBB: Okay. Would you like to comment on
13
KEEFE REPORTING COMPANY
1 any of the other photos or just in general present your defense?
2 MR. MALLOCH: This was an old building site and we were
3 trying to clean it up. There was old farm buildings there. It's
4 cleaned up back -- oh, it's cleaned up back to the edge of the
5 hill. Everything west of the driveway where you see these
6 pictures we have cleaned up. We hauled out several loads of
7 stuff there that I consider litter. And the site is pretty well
8 cleaned up now everything west of the road where these pictures
9 were taken. And anything that you see there was from buildings
10 that were there. It wasn't hauled in so I don't think it could
11 be considered dumping or littering if something is already there.
12 They were there when I bought the place in 1970. I think that's
13 it.
14 HEARING OFFICER WEBB: Okay. Ms. Ryan, do you have any
15 questions?
16 MS. RYAN: No, actually I don't.
17 HEARING OFFICER WEBB: Okay. Ms. Ryan, I see -- is that
18 your other witness?
19 MS. RYAN: It is, but I don't need to call him.
20 HEARING OFFICER WEBB: Okay. Let's go off the record to
21 discuss a briefing schedule.
22 (A discussion was held off the record.)
23 HEARING OFFICER WEBB: We've just had an off-the-record
24 discussion regarding post-hearing briefs. The parties have
14
KEEFE REPORTING COMPANY
1 agreed to a briefing schedule as follows: The transcript of
2 these proceedings will be available from the court reporter by
3 November 15th and will be posted on the Board's website. The
4 public comment deadline is November 30th, 2005. Any public
5 comment must be filed in accordance with Section 101.628 of the
6 Board's procedural rules. The complainant's brief will be due
7 November 30the, 2005. Respondent's brief will be due December
8 16th, 2005, and complainant's reply, if any, is due December
9 23rd, 2005. Ms. Ryan, would you like to make any closing
10 arguments?
11 MS. RYAN: No, I would like to reserve that for my brief.
12 Thank you.
13 HEARING OFFICER WEBB: Mr. Malloch, would you like to make
14 any closing arguments?
15 MR. MALLOCH: No, thank you.
16 HEARING OFFICER WEBB: At this time I will again note that
17 there are no members of the public present, so I will proceed to
18 make a statement as to the credibility of the witnesses
19 testifying during this hearing. Based on my legal judgment and
20 experience I find both of the witnesses testifying to be
21 credible. We stand adjourned, and I thank all of you for your
22 participation.
23
24
15
KEEFE REPORTING COMPANY
STATE OF ILLINOIS
COUNTY OF FAYETTE
C E R T I F I C A T E
I, BEVERLY S. HOPKINS, a Notary Public in and for the
County of Fayette, State of Illinois, DO HEREBY CERTIFY that the
foregoing 15 pages comprise a true, complete and correct
transcript of the proceedings held on the 2nd day of November,
A.D., 2005, at City Hall Council Chambers, 102 N. Neil Street,
Champaign, Illinois, in the case of IEPA vs. John R. Malloch, in
proceedings held before Hearing Officer Carol Webb, and recorded
in machine shorthand by me.
IN WITNESS WHEREOF I have hereunto set my hand and affixed
by Notarial Seal this 8th day of November A.D., 2005.
________________________________
Beverly S. Hopkins
Notary Public and
Certified Shorthand Reporter and
Registered Professional Reporter
CSR License No. 084-004316
16
KEEFE REPORTING COMPANY