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
(618) 244-0190
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
Keefe Reporting Company
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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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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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1
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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1
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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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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1
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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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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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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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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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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