1
    1
    ILLINOIS POLLUTION CONTROL BOARD
    2
    March 1, 2006
    3 IN THE MATTER OF:
    )
    )
    4 CLEAN CONSTRUCTION OR. )
    DEMOLITION DEBRIS FILL ) RO6-19
    5 OPERATIONS UNDER P.A. ) Rulemaking - Land
    94-272 (35 ILL. ADM. CODE )
    6 PART 1100)
    )
    7
    8
    RULEMAKING HEARING BEFORE THE ILLINOIS POLLUTION
    9 CONTROL BOARD, and before Hearing Officer Amy C. Antoniolli,
    10 and Board Members Nicholas J. Melas and Anand Rao, and taken
    11 in the above-entitled matter before Ann Marie Hollo, CSR,
    12 RPR, RMR, and Notary Public, State of Illinois, at 2:10
    13 o'clock P.M., on March 1, 2006, at the Illinois State
    14 Museum, Auditorium - Lower Level, 502 South Spring Street,
    15 Springfield, Illinois 62024, pursuant to notice.
    16
    17
    18
    Keefe Reporting Company
    11 North 44th Street
    19
    Belleville, Illinois 62226
    (618)277-0190
    20
    (800)244-0190
    21
    22
    23
    24
    25

    Keefe Reporting Company
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    2
    1 APPEARANCES:
    2
    3 Illinois Pollution Control Board
    James R. Thompson Center
    4 100 West Randolph Street
    Room 16-503
    5 Chicago, Illinois 60601
    By: Amy C. Antoniolli, Esq., Hearing Officer
    6
    and Nicholas J. Melas,
    Illinois Pollution Control Board Member
    7
    and Anand Rao,
    Illinois Pollution Control Board Member
    8
    Illinois Environmental Protection Agency
    9 1021 North Grand Avenue
    Springfield, Illinois 62794
    10 By: Stephanie Flowers, Esq. and Kyle Rominger, Esq.
    11
    Also in attendance from IEPA:
    12
    Christian J. Liebman, P.E., P.G.
    Joyce Munie, P.E.
    13
    Michael F. Nechvatal
    Paul M. Purseglove
    14
    Thomas W. Hubbard, P.E.
    15
    16
    E X H I B I T S
    17 NUMBER
    MARKED FOR IDENTIFICATION
    18 Exhibit Number 6
    Page 6
    Exhibit Number 7
    7
    19 Exhibit Number 8
    7
    Hearing Officer Exhibit A
    28
    20
    21
    22
    23
    24
    25

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    1
    HEARING OFFICER ANTONIOLLI: Good
    2
    afternoon, everyone. And welcome to the
    3
    Illinois Pollution Control Board Springfield
    4
    hearing on Docket R06-19. The Board has
    5
    captioned this rule making, "In the
    6
    matter of: Clean Construction or Demolition
    7
    Debris Fill Operations Under P.A. 94-272, 35
    8
    Illinois Administrative Code 1100." And as I
    9
    mentioned, docketed it at RO6-19.
    10
    My name is Amy Antoniolli, and I'm the
    11
    assigned hearing officer in this rule making.
    12
    In this proceeding, the Agency is seeking to
    13
    add a new part 1100, which would allow and
    14
    regulate the use of clean construction or
    15
    demolition debris as fill material in current
    16
    and former quarries, mines and other
    17
    excavations.
    18
    This rule making was filed on November 21,
    19
    2005 by the Illinois Environmental Protection
    20
    Agency, as I mentioned. The Board accepted the
    21
    proposal for hearing on December 1, 2005, and
    22
    today is the second hearing. The first hearing
    23
    was held in Chicago on January 26th.
    24
    The purposes of today's hearing is
    25
    two-fold. First, this rule making is subject

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    1
    to Section 27(b) of the Environmental
    2
    Protection Act. 27(b) of the Act requires the
    3
    Board to request the Department of Commerce and
    4
    Economic Opportunity to conduct an economic
    5
    impact study on certain proposed rules prior to
    6
    adoption of those rules. If the DCEO chooses
    7
    to conduct the impact study, DCEO has 30 to 45
    8
    days after such request to produce a study of
    9
    the economic impact of the proposed rules. As
    10
    required, the Board requested a letter. DCEO
    11
    responded by a letter dated January 31st that
    12
    it has decided not to conduct a study.
    13
    The second purpose is to allow the
    14
    proponent to testify, to allow any members of
    15
    the public, who wish to testify, the
    16
    opportunity to do so and to ask questions of
    17
    the proponent. If you would like to testify
    18
    today and you haven't let me know, please come
    19
    see me at the next break. We'll take a break
    20
    shortly.
    21
    All the information that is relevant and
    22
    not repetitious or privileged will be admitted
    23
    into the record.
    24
    To my right today is Member Nicholas
    25
    Melas. He's the Board member assigned to this

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    rule making. And to my left is Anand Rao, a
    2
    member of our technical unit.
    3
    So at this point, I will turn it over to
    4
    the Agency for an opening statement and to
    5
    present her witnesses.
    6
    MS. FLOWERS: My name is Stephanie Flowers
    7
    with Illinois EPA. And I have here with me
    8
    today is Mike Nechvatal, who is manager of the
    9
    Land Pollution Control Division; and Joyce
    10
    Munie, who is here as manager of the Permit
    11
    Section; Tom Hubbard, who is here as permit
    12
    writer; Chris Liebman, who is here as manager
    13
    of the solid waste unit; Paul Purseglove, who
    14
    is here as fill operations manager, and also
    15
    Kyle Rominger, here with -- as an attorney with
    16
    the Illinois EPA also.
    17
    The Agency filed an errata sheet and
    18
    additional testimony and also a response to
    19
    comments in this matter. And I guess at this
    20
    time, we would like to file the additional
    21
    testimony of Christian Liebman --
    22
    HEARING OFFICER ANTONIOLLI: Okay.
    23
    MS. FLOWERS: -- as an exhibit. I guess
    24
    this would be Exhibit 6?
    25
    HEARING OFFICER ANTONIOLLI: And this was

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    part of the -- this is additional to the
    2
    prefiled testimony?
    3
    MS. FLOWERS: Right. This is the
    4
    additional testimony that we filed with the
    5
    Board. And we would like it to be entered as
    6
    an exhibit and entered as if read.
    7
    HEARING OFFICER ANTONIOLLI: Does anyone
    8
    object to entering the additional testimony of
    9
    Christian Liebman into the record as Exhibit 6?
    10
    And seeing none, I'll mark it as Exhibit 6 and
    11
    enter it into the record.
    12
    (WHEREBY, EXHIBIT NUMBER 6 WAS
    13
    MARKED FOR IDENTIFICATION AND
    14
    ENTERED INTO THE RECORD.)
    15
    MS. FLOWERS: And we also have two
    16
    additional filings. We have an errata sheet 3
    17
    and an errata sheet 4 that we would like to
    18
    file with the Board. We would ask that this be
    19
    filed as Exhibit 7 and 8. And I have extra
    20
    copies for the Board.
    21
    HEARING OFFICER ANTONIOLLI: Is there
    22
    anyone else who would like to see a copy of the
    23
    errata sheet number 3 and errata sheet number
    24
    4? Okay.
    25
    MS. FLOWERS: The errata sheets have come

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    about because of continuing talks with the City
    2
    of Chicago, IEPA and IDOT. There was some
    3
    issues with some of the language we had already
    4
    proposed in an errata sheet, too. So this is
    5
    additional changes that we would like to make.
    6
    HEARING OFFICER ANTONIOLLI: Okay. I
    7
    mean, give everyone a second to get it. Do you
    8
    happen to have an extra copy for the court
    9
    reporter, too?
    10
    MS. FLOWERS: Yes.
    11
    HEARING OFFICER ANTONIOLLI: And is there
    12
    any objection to entering errata sheet number 3
    13
    into the record as Exhibit 7? And I see none.
    14
    So I will mark this as Exhibit 7 and enter it
    15
    into the record.
    16
    (WHEREBY, EXHIBIT NUMBER 7 WAS
    17
    MARKED FOR IDENTIFICATION AND
    18
    ENTERED INTO THE RECORD.)
    19
    HEARING OFFICER ANTONIOLLI: And is there
    20
    any objection to entering errata sheet number 4
    21
    into the record as Exhibit 8? And seeing none,
    22
    I'll mark it as Exhibit 8 and enter it into the
    23
    record. Okay.
    24
    25

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    1
    (WHEREBY, EXHIBIT NUMBER 8 WAS
    2
    MARKED FOR IDENTIFICATION AND
    3
    ENTERED INTO THE RECORD.)
    4
    MS. FLOWERS: And that's all we have.
    5
    Now the panel would be open for questions
    6
    from the Board and the public.
    7
    HEARING OFFICER ANTONIOLLI: So the first
    8
    thing we'll do, I'll first remind everyone to
    9
    speak slowly and clearly for the court reporter
    10
    who is transcribing the proceeding today. And
    11
    then I'll have all of your witnesses sworn in.
    12
    Can you do that?
    13
    [WHEREBY ALL WITNESSES WERE DULY
    14
    SWORN BY THE NOTARY PUBLIC.]
    15
    HEARING OFFICER ANTONIOLLI: Okay.
    16
    MS. FLOWERS: And there is -- oh, I
    17
    forgot to mention there is additional things
    18
    that the Agency has filed in this hearing.
    19
    It's the proposal, the prior testimony and our
    20
    latest filing that we did on 2-23. So if
    21
    anybody doesn't have copies, there's extras
    22
    there.
    23
    HEARING OFFICER ANTONIOLLI: And the Board
    24
    just has some questions for the witnesses
    25
    today. But any questions that we have are not

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    meant to reflect any bias, but meant to form a
    2
    more complete record.
    3
    But before we begin with questions, we'll
    4
    ask the public, does anyone here have questions
    5
    for the witnesses that are present today?
    6
    Then we'll begin. And I didn't mean that
    7
    you can't ask questions later. Please feel
    8
    free to jump in or request to ask questions at
    9
    a later time.
    10
    Mr. Melas, would you like to be it?
    11
    BOARD MEMBER MELAS: Shall we start? Can
    12
    you tell us a little bit more about the new
    13
    language, which you added to the Board notes in
    14
    Section 1100.201(b), which is in the -- it was
    15
    in the errata sheet number 2.
    16
    HEARING OFFICER ANTONIOLLI: It was in the
    17
    errata sheet number 2, and it has also been
    18
    amended in errata sheet number 4.
    19
    MS. FLOWERS: Okay. So that's the
    20
    Illinois Department of Transportation
    21
    specification?
    22
    BOARD MEMBER MELAS: No.
    23
    HEARING OFFICER ANTONIOLLI: Oh, no. I'm
    24
    sorry.
    25
    BOARD MEMBER RAO: Number 4.

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    1
    HEARING OFFICER ANTONIOLLI: It's not
    2
    amended errata sheet number 4.
    3
    BOARD MEMBER MELAS: It's just the one at
    4
    the top. 1100.201(b), talking about
    5
    commingling, as a matter of fact.
    6
    QUESTIONS
    7 BY BOARD MEMBER MELAS:
    8
    Q I'm just curious as to what do you -- now
    9 anybody from the Agency can answer this. What do
    10 you now see as the so-called universe of nonwaste
    11 material that may be commingled with and then
    12 considered CCDD?
    13
    A (By Ms. Munie) In particular --
    14
    HEARING OFFICER ANTONIOLLI: Could you
    15
    introduce yourself again?
    16
    MS. MUNIE: I'm Joyce Munie with the
    17
    Illinois EPA.
    18
    During discussions on -- with the
    19
    industry, the mining industry, there are many
    20
    types of overburdens or material that is waste
    21
    to their particular operation that must go back
    22
    into the same areas of the facility, in the
    23
    same fill areas. So they are not waste by
    24
    definition. They are exempt from being waste
    25
    by being a mining waste, and therefore they

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    could be allowed to go into these holes as well
    2
    as this CCDD or uncontaminated soils.
    3 BY BOARD MEMBER MELAS:
    4
    Q So it would be the material that has been
    5 excavated in order to create the hole CCDD is going
    6 into?
    7
    A Yes.
    8
    Q Now, do you consider commingling as
    9 something that must take place at the CCDD fill
    10 operation or rather at the generation?
    11
    A If the material is commingled at the point
    12 of generation?
    13
    Q Yeah.
    14
    A Meaning the uncontaminated soil is
    15 commingled with construction debris?
    16
    Q Right.
    17
    A Then by definition, that commingled
    18 material is all clean construction demolition
    19 debris.
    20
    Q Okay.
    21
    BOARD MEMBER RAO: So may I follow up,
    22
    Mr. Melas?
    23
    BOARD MEMBER MELAS: Well, I have one last
    24
    follow-up, and then you can jump in.
    25
    Q If you decide to keep -- this is

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    1 specifically aimed at the Board notes. Would you
    2 consider modifying the term, quote "nonwaste
    3 material" with the phrase, quote, "generated from
    4 construction or demolition activities" unquote? To
    5 make it perfectly clear, that's --
    6
    A I'm sorry. Could you repeat that?
    7
    Q There's a term -- the term "nonwaste
    8 material" is used. Could you modify that by adding
    9 the phrase "generated from construction or
    10 demolition activities"?
    11
    A And would you say that that would -- that
    12 it would be adding to? You would not take away the
    13 term "other nonwaste material"?
    14
    Q Oh, no, no. It would be more or less a
    15 modification of that term.
    16
    A So it would read "other nonwaste material,
    17 generated from construction or demolition debris" --
    18
    Q Right.
    19
    A -- "activities"?
    20
    Q Right.
    21
    A The problem there is that that would not
    22 encompass the waste material that would come from
    23 the mining operation because that's not a
    24 construction or demolition process.
    25
    BOARD MEMBER MELAS: Okay.

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    1
    QUESTIONS
    2 BY BOARD MEMBER RAO:
    3
    Q When you say that it's not -- you know,
    4 that will not cover the waste or nonwaste generated
    5 at the mining or quarry site, are those the only
    6 types of, you know, nonwaste materials you think
    7 that would be commingled? Or is there any way you
    8 can bring in, you know, other materials that you
    9 think is not waste and mix it up and dump in these
    10 fills?
    11
    A (By Ms. Munie) That's the only material
    12 that we envision through our discussions.
    13 Essentially that's the only thing we thought of that
    14 could be the nonwaste material that could be
    15 commingled here.
    16
    Q So would it be acceptable to the Agency to
    17 then limit this nonwaste material to what you think
    18 or what you envision going into these fill
    19 operations? Right now the way the rule is or the
    20 Board notes -- and first of all, it's in the Board
    21 note, which kind of makes it difficult. You know,
    22 it should be in the rules, I think, but we can talk
    23 about that later.
    24
    But, anyway, just to narrow the scope
    25 of this language here; it's very broad. It almost

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    1 seems like any material can be just added to CCDD
    2 and be considered as CCDD.
    3
    A (By Mr. Nechvatal) My name is Mike
    4 Nechvatal. I'm with the Environmental Protection
    5 Agency.
    6
    The other things we could think of
    7 would be loads of nonwaste, like gravel or sand,
    8 that for some reason would be returned back to the
    9 quarry for filling. That doesn't necessarily make
    10 economic sense, but I suppose it could happen. That
    11 would fit in that definition. It's more likely to
    12 be uncontaminated soils that were separated and
    13 segregated from other CCDD waste. So it did not
    14 become CCDD material, and then it could be put into
    15 this fill and then commingled. There may be other
    16 things. That's the best we can think of, I think.
    17
    MS. FLOWERS: I think it has to be a
    18
    nonwaste under the Act, and I'm not sure that
    19
    we could list the whole realm of what that
    20
    would be without missing some.
    21 BY BOARD MEMBER RAO:
    22
    Q Correct me if I'm wrong. I thought you
    23 had also clarified that the CCDD fills -- you know,
    24 the operator was free to put any other nonwaste
    25 material. It need not to be considered as a CCDD by

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    1 definition. You know, I thought you gave this
    2 example about, you know, it can be below grade. It
    3 can be CCDD above grade. You can put whatever else
    4 you want to do to bring it up to the elevations that
    5 they want.
    6
    So does it have to be, you know,
    7 within the context of the definition? Or, you know,
    8 if it's just looking at the statutory language in
    9 the definition, it seems like it's pretty tight in
    10 terms of what the statutes say about CCDD.
    11
    A (By Ms. Munie) Actually, I think it has to
    12 be in the statutory definition of "waste," meaning
    13 anything that is exempt from being a waste can be
    14 put into these fill areas.
    15
    QUESTIONS
    16 BY HEARING OFFICER ANTONIOLLI:
    17
    Q Instead of something that's necessarily
    18 generated from demolition or construction
    19 activities?
    20
    A (By Ms. Munie) Yes.
    21
    Q Okay. And the only other place we
    22 envision talking about the non CCDD material, rather
    23 than the Board note, would be in the definition of
    24 clean construction or demolition debris. And that
    25 would be in the place where as pursuant to errata

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    1 sheet number 2, it was added, that sentence about
    2 "For the purposes of this part, uncontaminated soil
    3 may include incidental amounts of stone, clay, rock,
    4 sand, gravel, roots and other vegetation." So
    5 that's something at this point to consider.
    6
    MS. FLOWERS: Are you saying to add that
    7
    at that same point?
    8
    HEARING OFFICER ANTONIOLLI: Either to add
    9
    it at the same point or to move it outside of
    10
    the Board note, because of -- as Anand raised
    11
    earlier, the Board note would be more guidance
    12
    than part of our Board regulations.
    13
    MS. FLOWERS: Right.
    14
    HEARING OFFICER ANTONIOLLI: So it's
    15
    something to consider.
    16
    MS. FLOWERS: Our intention was to modify
    17
    B or to clarify B. I guess where it says,
    18
    "CCDD fill operations will not accept fill
    19
    other than CCDD," I think we had some questions
    20
    about what if they did bring in a load of sand
    21
    and they did not bring that, and we're saying
    22
    that was where we were clarifying, well, if
    23
    you're going to put it with the CCDD, then it
    24
    is CCDD. And that's so --
    25
    HEARING OFFICER ANTONIOLLI: Or that could

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    1
    be part of that.
    2
    MS. FLOWERS: There might be a better way
    3
    to say it. We just haven't figured it out.
    4
    BOARD MEMBER RAO: Now, if you think that
    5
    any other nonwaste material commingling with
    6
    CCDD will become CCDD, then you might have to
    7
    add that language in the definition, which
    8
    makes it clear what, you know, CCDD means.
    9
    MS. MUNIE: Actually, I think maybe it was
    10
    something I said you might have misunderstood.
    11
    BOARD MEMBER RAO: Yeah.
    12
    MS. MUNIE: We were not suggesting that
    13
    anything that's not uncontaminated soil mixed
    14
    with CCDD becomes CCDD. It's --
    15
    HEARING OFFICER ANTONIOLLI: It must be
    16
    uncontaminated soil.
    17
    MS. MUNIE: It must be uncontaminated soil
    18
    mixed with CCDD to become CCDD. The other
    19
    material is nonwaste, and as such, can be put
    20
    into the fill area. That is defined as a CCDD
    21
    fill area. Does that make sense?
    22
    MS. FLOWERS: I mean, we had talked about
    23
    some other language there as well, and I don't
    24
    know if maybe we need to review that and see if
    25
    there would be a better way to say that.

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    1
    BOARD MEMBER RAO: It may be helpful if
    2
    you take another look at it because we have
    3
    this provision which says, "CCDD fill
    4
    operations must not accept fill other than
    5
    CCDD." And in the Board notes, we're saying
    6
    it's okay to accept other material. So, you
    7
    know, you may want to take a look at it.
    8
    HEARING OFFICER ANTONIOLLI: And the way
    9
    you explained it to us now was clearer than it
    10
    currently reads.
    11
    MS. MUNIE: Sure.
    12
    BOARD MEMBER MELAS: Yes.
    13
    MS. MUNIE: Can we suggest as a
    14
    possibility that it would read, "CCDD fill
    15
    operations must not accept material other than
    16
    CCDD or other nonwaste material for use as
    17
    fill"?
    18
    BOARD MEMBER RAO: That would work.
    19
    HEARING OFFICER ANTONIOLLI: That's
    20
    better.
    21
    MS. MUNIE: And then we would offer that
    22
    we would still like to keep the Board note in
    23
    here as just a further explanation for it.
    24
    HEARING OFFICER ANTONIOLLI: Okay.
    25

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    1
    QUESTIONS
    2 BY BOARD MEMBER RAO:
    3
    Q Along those same lines, I had a question
    4 that relates to Section 1100.205, the load checking
    5 program. And right now, the language at the
    6 proposed site is that the owner or operator must
    7 institute and conduct load checking program designed
    8 to detect attempts to dispose of material other than
    9 CCDD. The use of the term "material" is, I thought,
    10 fairly broad. Shouldn't that be, you know, "waste"?
    11 Are they looking for waste being mixed with CCDD?
    12
    A (By Ms. Flowers) Could you repeat that
    13 section?
    14
    Q Yes. It's -- 1100.205 is the preamble.
    15
    A This is the beginning statement? Material
    16 other than CCDD?
    17
    MS. MUNIE: I think we want to take a look
    18
    at that.
    19
    HEARING OFFICER ANTONIOLLI: Very good.
    20
    QUESTIONS
    21 BY HEARING OFFICER ANTONIOLLI:
    22
    Q And then in that same section, 1100.205,
    23 in errata sheet number 2, there was a new proposed
    24 sentence under "Random Inspections" that said, "All
    25 instruments shall be interpreted based on the

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    1 manufacturer's margin of error. Any reading in
    2 excess of background levels --." And then it
    3 continues on to "using any of these instruments must
    4 result in the rejection of the inspected load." And
    5 that's a change based on our discussions at the
    6 first hearing. Would the Agency consider -- was it
    7 already considered to change the next sentence also
    8 to base the Agency's readings on background levels
    9 as well or their opportunity to reject a load?
    10
    A (By Mr. Purseglove) No, we haven't
    11 considered that change.
    12
    Q Would that be something you would
    13 consider, or was it left intentionally that way?
    14
    A It's something we would consider.
    15
    MS. FLOWERS: Just to clarify that a
    16
    little bit. We were going to request in the
    17
    permit that they give us a description of how
    18
    they are going to determine background levels
    19
    so that we can verify that they are
    20
    consistently getting a certain background
    21
    reading.
    22 BY HEARING OFFICER ANTONIOLLI:
    23
    Q It would be something that they keep at
    24 the facility?
    25
    A (By Ms. Flowers) Right. And then the

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    1 inspectors would have access to the information. So
    2 I'm not sure then about whether or not how we would
    3 go about calibrating our instrumentation to reflect
    4 that background level. I'm not sure.
    5
    MR. PURSEGLOVE: Therein lies the problem
    6
    that we would have our instrument calibrated to
    7
    zero error and not have a background effect on
    8
    our instrument.
    9
    MS. FLOWERS: I think what you're saying
    10
    is, it seems inconsistent?
    11
    MR. PURSEGLOVE: Yeah, I recognize that.
    12
    QUESTIONS
    13 BY BOARD MEMBER RAO:
    14
    Q Actually, Ms. Flowers answered my -- I was
    15 about to ask you the question about how they were
    16 going to get them in the background at these sites,
    17 and you mentioned that you want to do it as part of
    18 the permit?
    19
    A (By Ms. Flowers) Yes.
    20
    Q Would you consider adding some language in
    21 the permit requirement section that they should give
    22 you that information? Or do you already have it in
    23 there?
    24
    HEARING OFFICER ANTONIOLLI: The 1100.300
    25
    is the permit information.

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    1
    MS. MUNIE: And, actually, we believe that
    2
    it was already covered under 1100.306 between
    3
    (a) and (e), between the two sections.
    4 BY BOARD MEMBER RAO:
    5
    Q Okay. I asked --
    6
    A (By Ms. Munie) Yes. We believe that that
    7 would be something specifically that would be
    8 required to meet those two sections.
    9
    Q For some of the other requirements in
    10 the -- not in the description of the facility. You
    11 know, you have site-specific section numbers.
    12
    A Yes.
    13
    Q Would you consider adding Section 205 in
    14 one of those sections?
    15
    A Actually, if you look at Subsection A, it
    16 specifically does cite to 205.
    17
    Q Oh, yes.
    18
    BOARD MEMBER RAO: Thank you.
    19
    HEARING OFFICER ANTONIOLLI: Very good.
    20
    I have a question about the exhibits that
    21
    were attached to Mr. Liebman's pre-filed
    22
    testimony.
    23
    QUESTIONS
    24 BY HEARING OFFICER ANTONIOLLI:
    25
    Q And just for clarification, I am turning

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    1 to Exhibit A, which talks about the industry's
    2 estimate of cost compliance as well as the Agency's
    3 estimate to the State of Illinois. Were you
    4 considering then the Agency's estimate based on
    5 all -- processing all 83 of these permits? And then
    6 the industry's estimate would be per site?
    7
    A (By Mr. Liebman) Yes. Well, the Agency's
    8 estimate is based on the assumption that we will
    9 hire four engineers, four additional engineers to
    10 review these applications, and have three and a half
    11 field inspectors to inspect the sites. But with
    12 regard to the industry's estimate, yes, that was for
    13 a single site.
    14
    Q Okay.
    15
    A So a little bit inconsistent. Some of the
    16 items in the industry's estimate are for a onetime
    17 occurrence. Other things are for something that
    18 they would have to do every year.
    19
    Q And that as well applies to the Agency's
    20 estimate, because once these preliminary permits are
    21 processed, it would be the yearly maintenance that
    22 would continue, the yearly inspections?
    23
    A We plan to maintain that. We anticipate
    24 that we will need these people indefinitely.
    25
    Q Okay. And besides the 83 that you've

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    1 cited that have already filed for interim permits,
    2 do you foresee many more being created or that
    3 haven't applied yet?
    4
    A (By Mr. Purseglove) We asked that
    5 question during a recent discussion, and the
    6 response was that in the affirmative, yes, but that
    7 some industries were just waiting to see how the
    8 final rule package was going to be developed before
    9 they made a decision about converting one of their
    10 mines, quarries or excavations into a permitted CCDD
    11 fill site.
    12
    Q Okay.
    13
    A If you look at the map, you'll see some
    14 geographic areas of the State that are not very well
    15 represented in terms of a location to deliver CCDD.
    16
    HEARING OFFICER ANTONIOLLI: Okay.
    17
    QUESTIONS
    18 BY BOARD MEMBER RAO:
    19
    Q You know, talking about the location of
    20 these facilities for which you have received
    21 permits, the bar chart is very helpful in
    22 visualizing, you know, the number of facilities
    23 based on the volume that they receive. Do you have
    24 any information as to where these are located in the
    25 map? That you -- are those the bigger ones? The

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    1 Chicago, Cook County area? Or is it spread out
    2 around the state?
    3
    A (By Mr. Liebman) We have not -- we do
    4 have that information. We've not tried to break it
    5 down in that way. My guess is you're right. That
    6 most of the larger volume ones would be in and
    7 around the larger population centers.
    8
    QUESTIONS
    9 BY HEARING OFFICER ANTONIOLLI:
    10
    Q I am going back to Section 1100.103. And
    11 I apologize for jumping around a little bit here.
    12
    But pursuant to errata sheet 2 again,
    13 I'm going to take you to part 1100.101. And the
    14 Board note in that section, that per the errata
    15 sheet number 2, adds a sentence that says,
    16 "According to the definition of engineer in article
    17 101.16 of the IDOT specifications, this exemption
    18 applies to IDOT, a county, a municipality or a
    19 township."
    20
    Would the Agency consider also
    21 including or referring to the definition of a
    22 "contractor" in that section? Since "contractor" is
    23 so frequently referenced in IDOT specifications?
    24 And that I think as Ms. Munie described at the last
    25 hearing, a contractor would not necessarily have to

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    1 be an IDOT contractor. That may be something you
    2 feel is implied, but for the Board note, it may be a
    3 good thing to be -- to have explicitly mentioned
    4 there.
    5
    A (By Ms. Munie) And our problem with the
    6 clarification that you're suggesting is that the
    7 term "contractor" goes directly that the contractor
    8 is a group contracting with the department.
    9
    Q Right.
    10
    A And the department are the ones that then
    11 go to being the county, the council, city council or
    12 academy or municipality. So it really is the
    13 department that we were pointing to there when we
    14 were saying that this exemption fell to that group.
    15
    Q Well, as with the definition of an
    16 engineer; isn't that right?
    17
    A (By Ms. Flowers) Right.
    18
    Q So it's something that you can consider
    19 adding? I think the same restrictions would be on
    20 the contractor as with engineer pursuant to that
    21 definition.
    22
    A (By Ms. Munie) That shouldn't actually be
    23 "engineer." That should be "department."
    24
    MS. FLOWERS: I think that -- I mean, I
    25
    just want to clarify what you're asking. We've

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    1
    got "according to the definition of engineer,"
    2
    and you would just like "according to the
    3
    definition of engineer or contractor, this
    4
    exemption only applies to"?
    5
    HEARING OFFICER ANTONIOLLI: Right. And
    6
    the contractor is defined in those
    7
    articles -- I think it's 101.102, like engineer
    8
    is defined as well.
    9
    MS. FLOWERS: Okay.
    10
    BOARD MEMBER RAO: So it won't change the
    11
    intent of the --
    12
    MS. FLOWERS: Okay. We can take a look at
    13
    that.
    14
    HEARING OFFICER ANTONIOLLI: Okay. I
    15
    am -- at this point, does anyone have any
    16
    further questions for the witnesses? I'm
    17
    prepared to take a 10-minute break.
    18
    And before I do, I want to distribute a
    19
    letter that the Board received in the
    20
    Springfield office yesterday that was addressed
    21
    to acting Chairman Tanner Girard and was sent
    22
    on behalf of -- I didn't want to miss
    23
    the -- Illinois Society of Professional
    24
    Engineers. And I will just distribute this
    25
    before we take a 10-minute break so everyone

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    28
    1
    can look at it. What I plan to do is move it
    2
    as entering it into the record as a hearing
    3
    officer exhibit. And then I believe someone
    4
    from the Illinois Society of Professional
    5
    Engineers is here today to answer questions or
    6
    talk about it.
    7
    So we will go off the record right now.
    8
    (WHEREBY A SHORT BREAK WAS
    9
    TAKEN.)
    10
    HEARING OFFICER ANTONIOLLI: We're back on
    11
    the record, and it's about 2:55, just after our
    12
    short break.
    13
    And what I have before me is a letter.
    14
    First the cover page is a letter to Director
    15
    Doug Scott of the Illinois Environmental
    16
    Protection Agency. And it is signed both by
    17
    Kim Robinson of the Illinois Society of
    18
    Professional Engineers as well as David Kennedy
    19
    on behalf of the American Council of
    20
    Engineering. And I think everyone had a chance
    21
    to look at the letter. I'm entering it as a
    22
    public comment.
    23
    Does anyone have any objection to me
    24
    entering this into the record as Hearing
    25
    Officer Exhibit A? And seeing none, I'm

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    1
    marking this as Hearing Officer Exhibit A.
    2
    (WHEREBY, HEARING OFFICER
    3
    EXHIBIT A WAS MARKED FOR
    4
    IDENTIFICATION.)
    5
    HEARING OFFICER ANTONIOLLI: And would
    6
    anyone I guess -- I will start with the
    7
    question for the Agency as to what your
    8
    position is or what your opinion is of this
    9
    proposed language, which would in fact add a
    10
    section that would require a professional
    11
    engineer certification on the design, as well
    12
    as the application of this fill operation.
    13
    And I'll also note that a PE
    14
    certification, "PE" stands for professional
    15
    engineer. And that's already required for the
    16
    certification of closure.
    17
    MS. FLOWERS: Go ahead.
    18
    MS. MUNIE: We were aware of this letter
    19
    prior to the drafting of it, the final drafting
    20
    of these rules. We did have discussions with
    21
    the Illinois Society of Professional Engineers
    22
    specifically in regards to this letter, also
    23
    with the industry being the mining industry,
    24
    the aggregate industry.
    25
    BOARD MEMBER MELAS: Aggregate.

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    1
    MS. MUNIE: And we chose not to add this
    2
    requirement into our rules as we were drafting
    3
    them. Our rules are not meant to circumvent
    4
    the PE Act or any requirements that must be met
    5
    under that Act. Those rules are independently
    6
    enforced by different state agencies. And just
    7
    because our rules didn't add this
    8
    requirement -- if the requirement existed
    9
    independent from our rules, that could be
    10
    enforced independent from our rules.
    11
    HEARING OFFICER ANTONIOLLI: Okay. Thanks
    12
    for your comment.
    13
    And is there anyone else who wants to
    14
    comment on this exhibit? Okay.
    15
    Well, now that that's been made part of
    16
    the record, I will turn it back to you, the
    17
    Agency, who wanted to make a brief comment on
    18
    the errata sheets number 3 and number 4.
    19
    MS. FLOWERS: Yes. We just wanted to go
    20
    ahead and talk about the changes that were made
    21
    and why we made them.
    22
    MR. NECHVATAL: Maybe I'll talk about the
    23
    errata sheet number 3.
    24
    We wanted to explain better what "other
    25
    excavation" was, and to explain what

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    1
    not -- more importantly, to explain what is not
    2
    included in that term. So that things that are
    3
    holes or trenches or other earthmoving that is
    4
    done as normal construction or demolition or
    5
    maintenance of buildings, roads, other
    6
    transportation infrastructure would not be
    7
    included in that. That that was not the
    8
    intent, and should not be included in this. It
    9
    does not completely -- it explains what we
    10
    might -- what "other excavation" might be, but
    11
    it certainly excludes what we believe will be
    12
    the preponderance of the examples of the types
    13
    of sites that should be part of this rule
    14
    making.
    15
    BOARD MEMBER MELAS: That makes sense.
    16
    MS. FLOWERS: And I think that I -- just
    17
    to clarify what specifically was changed, we
    18
    did add in the term "other excavation" where as
    19
    before we just had "excavation." And that was
    20
    to make sure that we were talking about -- we
    21
    weren't talking about quarries or mines. This
    22
    does not modify quarry or mines at all.
    23
    And we changed where it said "other
    24
    similar earthmoving operations," we changed it
    25
    to "or other similar earth removal created."

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    1
    BOARD MEMBER MELAS: Okay.
    2
    MS. FLOWERS: And then we also changed
    3
    "building" to "structure." We thought that
    4
    took in more, made it a little bit broader and
    5
    applicable. And also we changed "road" to
    6
    "transportation infrastructure" to make that
    7
    more applicable.
    8
    HEARING OFFICER ANTONIOLLI: Okay. About
    9
    errata sheet number 4, we weren't clear what
    10
    was changed in this errata sheet compared to
    11
    what was changed in errata sheet number 2, the
    12
    changes that were made to the same section,
    13
    1100.101(b)3.
    14
    MS. FLOWERS: There. What we did was we
    15
    took out the reference to a specific IDOT
    16
    specification published edition. It had
    17
    previously included after the title, "Standard
    18
    Specifications for Road and Bridge
    19
    Construction," it said January 1, 2002 edition.
    20
    HEARING OFFICER ANTONIOLLI: Okay.
    21
    MS. FLOWERS: That was left out.
    22
    HEARING OFFICER ANTONIOLLI: Okay.
    23
    BOARD MEMBER MELAS: Okay.
    24
    HEARING OFFICER ANTONIOLLI: Do you have
    25
    any further questions?

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    1
    BOARD MEMBER MELAS: No, none.
    2
    MS. FLOWERS: We also just -- we had a
    3
    discussion to clarify the request by the Board
    4
    on adding "contractor" to 101 (b)3.
    5
    HEARING OFFICER ANTONIOLLI: Okay.
    6
    MS. FLOWERS: On the Board note there. I
    7
    think there was a bit of confusion about why we
    8
    would want that term in there as well. And so
    9
    what we came up with was maybe if it would
    10
    satisfy everyone to say, "According to the IDOT
    11
    specifications, this exemption applies to the
    12
    following." And that would leave out any
    13
    reference to a specific definition of either
    14
    engineer, contractor or department or anything.
    15
    HEARING OFFICER ANTONIOLLI: I think
    16
    that's a good solution.
    17
    MS. FLOWERS: Okay.
    18
    HEARING OFFICER ANTONIOLLI: Okay?
    19
    Is there anyone else that has questions
    20
    for the Agency witnesses that are here today?
    21
    Or anyone else that would like to make a public
    22
    comment at this time?
    23
    Yes. Can you please identify yourself?
    24
    MS. YOUNG: Hello. My name is Virginia
    25
    Young, and I'm deputy counsel with the Illinois

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    1
    Department of Natural Resources. And I'm here
    2
    representing the Office of Mines and Minerals.
    3
    I just am attending this proceeding, and I just
    4
    wanted to note that we have been talking with
    5
    the Illinois Environmental Protection Agency,
    6
    and John Hendricks' Group, the Illinois
    7
    Association of Aggregate Producers.
    8
    Our concern is that there may be some
    9
    overlapping issues in relationship to the
    10
    existing IDNR Mines and Mineral Program that
    11
    regulate current ongoing quarry operations and
    12
    the program that's being discussed right now
    13
    that would regulate the use of these sites for
    14
    future CCDD operations. There are just certain
    15
    scenarios of specific site operations where
    16
    there may be some overlap in trying to make
    17
    sure that the two regulatory programs don't
    18
    conflict and can work in conjunction.
    19
    I don't have any formal comments right
    20
    now. But I just wanted to advise the Board
    21
    that we do have some side discussions going on,
    22
    and we may be filing a written statement, you
    23
    know, the next week or so.
    24
    HEARING OFFICER ANTONIOLLI: Okay.
    25
    MS. YOUNG: Okay.

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    1
    HEARING OFFICER ANTONIOLLI: Thank you.
    2
    And are there any further questions or
    3
    comments at this time? Okay.
    4
    All right. Then it looks like we are
    5
    close to concluding. Thank you for being here
    6
    today and for the testimony you've provided.
    7
    Seeing no more questions for the
    8
    witnesses, we will expect to have the
    9
    transcript of today's hearing in the Board's
    10
    offices hopefully within eight business days?
    11
    So that would make it approximately March 13th.
    12
    Because the adoption deadline applicable
    13
    to this rule making is so tight, we are
    14
    constrained to a shorter first notice public
    15
    comment period. Therefore the Board will
    16
    accept public comments prior to first notice on
    17
    this proposal until March 17, 2006. But
    18
    everyone please keep in mind, of course, that
    19
    there will be an additional public comment
    20
    period of at least 45 days after the Board
    21
    adopts these rules for first notice.
    22
    Today's hearing concludes the hearing
    23
    scheduled by the Board in this matter, but any
    24
    party may request an additional hearing
    25
    pursuant to Section 102.412(b) of the Board's

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    1
    procedural rules.
    2
    And once we receive it, the Board will
    3
    post the transcript on their Web site, which is
    4
    www.ipcb.state.il.us. There the transcript, as
    5
    well as the Agency's proposal and all of the
    6
    Board orders, errata sheets, etcetera, will be
    7
    available to download at no charge.
    8
    Alternatively, you can call the clerk's
    9
    office, and we will have copies of the
    10
    transcript made, but they will be at a charge
    11
    of 75 cents per page. Anyone can file a public
    12
    comment, but please file with the clerk of the
    13
    Board. And know when you file a public
    14
    comment, you must serve all the people on the
    15
    service list with a copy.
    16
    There's nothing further. I wish to thank
    17
    all of you for your comments and for your
    18
    testimony. And this hearing is adjourned.
    19
    Thank you.
    20
    [END OF HEARING.]
    21
    22
    23
    24
    25

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    37
    1
    NOTARIAL CERTIFICATE
    2
    I, ANN MARIE HOLLO, a Certified Shorthand Reporter
    3 for the State of Illinois, CSR# 084-003476, and a duly
    commissioned Notary Public within and for the State of
    4 Illinois, do hereby certify that there came before me at the
    Illinois State Museum, Auditorium - Lower Level, 502 South
    5 Spring Street, Springfield, Illinois 62024,
    6
    THE MERIT AND ECONOMIC RULE MAKING HEARING,
    7
    before the Illinois Pollution Control Board.
    All witnesses were first duly sworn to testify to the truth
    8 and nothing but the truth of all knowledge touching and
    concerning the matters in this cause. That said hearing was
    9 reduced to writing. And this transcript is a true and
    correct record of the hearing.
    10
    11
    IN WITNESS WHEREOF, I have hereunto set my hand
    and seal on March 6, 2006.
    12
    My commission expires April 5, 2006.
    13
    14
    ________________________
    Notary Public
    15
    16
    17
    18
    19
    20
    21
    22
    23
    24
    25

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