1
1
ILLINOIS POLLUTION CONTROL BOARD
April 20, 2006
2
ILLINOIS ENVIRONMENTAL
)
3 PROTECTION AGENCY,
)
)
4
Complainant, )
) No. AC 05-40
5 vs.
)
)
6 NORTHERN ILLINOIS SERVICE )
COMPANY,
)
7
)
Respondent. )
8
9
10
TRANSCRIPT OF PROCEEDINGS at the hearing of
11 the above-entitled cause before Hearing Officer
12 Bradley P. Halloran, called by the Illinois
13 Pollution control Board, pursuant to notice, taken
14 before CHERYL L. SANDECKI, CSR, RPR, a notary public
15 within and for the County of Lake and State of
16 Illinois, at 4302 North Main Street, Rockford,
17 Illinois, on the 20th day of April, A.D., 2006,
18 commencing at 9:00 o'clock a.m.
19
20
21
22
23
24
2
1
APPEARANCES:
2
ILLINOIS POLLUTION CONTROL BOARD
BY: MR. BRADLEY P. HALLORAN,
3
Hearing Officer
100 West Randolph Street
4
Suite 11-500
Chicago, Illinois 60601
5
(312) 814-8917
6
7
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
8
BY: MS. MICHELLE M. RYAN
1021 North Grand Avenue East
9
P.O. Box 19276
Springfield, Illinois 62794
10
(217) 782-5544
11
On behalf of the
Complainant;
12
MR. LEWIS B. KAPLAN
13
401 West State Street
Suite 201
14
Rockford, Illinois 61101
(815) 963-3090,
15
- and -
16
MR. PETER D. DeBRUYNE
17
838 North Main Street
Rockford, Illinois 61103
18
(815) 964-3810,
19
On behalf of the
Respondents.
20
21
22
23
24
3
1
I N D E X
2
PAGE
3 OPENING STATEMENT - by Ms. Ryan
7
4 OPENING STATEMENT - by Mr. Kaplan
7
5
6 WITNESS
PAGE
7 KARRE JACOBSEN
8
Direct by Ms. Ryan
8
Cross by Mr. Kaplan
15
9
Cross by Mr. DeBruyne
18
Redirect by Ms. Ryan
23
10
RONALD FOSS
11
Direct by Mr. DeBruyne
26
12
WAYNE KLINGER
13
Direct by Mr. Kaplan
38
14
15
16
E X H I B I T S
17
18 RECEIVED
PAGE
19
Complainant
20
1
14
21
Respondent
22
1 - 3
37
23
4
51
24
4
1
THE HEARING OFFICER: Good morning.
2
My name is Bradley Halloran. I am a
3
hearing officer with the Illinois
4
Pollution Control Board. I am also
5
assigned to this matter entitled
6
Illinois Environmental Protection
7
Agency, the complainant, versus Northern
8
Illinois Service Company, the
9
respondent. It is Administrative
10
Citation 05-40.
11
I also note for the record
12
that today is April 20th, 2006. It is
13
approximately 9:00 a.m. This
14
Administrative Citation was filed by the
15
IEPA. It alleges that during an
16
inspection on October 4th, 2004, it was
17
determined that respondent violated
18
Section 21(p)(1) and Section 21(p)(7) of
19
the Act.
20
As a result of the
21
October 4th, 2004 inspection and
22
subsequent Administrative Citation,
23
respondent filed a petition for review
24
disputing the one violation of 21(p)(1),
5
1
and that is why we are here today.
2
This matter will be conducted
3
in accordance with Section 108 and
4
Section 101 subpart F of the Board's
5
procedural rules.
6
I also note for the record
7
that I don't make the ultimate decision
8
in the case. That is left up to the
9
five board members.
10
With that said, Ms. Ryan,
11
would you like to introduce yourself?
12
MS. RYAN: Michelle Ryan, Special
13
Assistant Attorney General for the
14
Illinois EPA. And I apologize to the
15
Board, I have forgotten my written
16
appearance today, but I will be sending
17
that along. In fact, I will file it
18
electronically, if that's all right.
19
THE HEARING OFFICER: Thanks.
20
MR. KAPLAN: Lewis Kaplan on behalf
21
of Northern Illinois Service, one of the
22
lawyers representing them. And I will
23
also, as suggested by yourself, your
24
Honor, file my appearance with the
6
1
post-hearing brief.
2
THE HEARING OFFICER: Thank you,
3
Mr. Kaplan. Mr. DeBruyne?
4
MR. DeBRUYNE: Peter DeBruyne. It
5
is D-E capital B-R-U-Y-N-E, attorney for
6
the respondent.
7
THE HEARING OFFICER: Thank you.
8
Mr. DeBruyne, do you have a motion you
9
would like to floor at this time?
10
MR. DeBRUYNE: Yeah. I would like
11
to move to exclude witnesses. I believe
12
the complainant only has one, but just
13
for the purposes of opening statement,
14
and then I understand the witness will
15
come back in.
16
THE HEARING OFFICER: Okay.
17
Terrific. Ms. Ryan, any problem with
18
that?
19
MS. RYAN: No, that's fine.
20
THE HEARING OFFICER: Okay. Motion
21
granted.
22
(Witnesses excused.)
23
THE HEARING OFFICER: My Ryan, any
24
opening?
7
1
MS. RYAN: Just very briefly.
2
OPENING STATEMENT
3 BY MS. RYAN:
4
We believe that the evidence today will
5 show that on October 4th, 2004, open dumping
6 resulting in litter as construction demolition
7 debris occurred at the Roscoe Quarry, which is
8 located at 4960 Rockton Road in Roscoe.
9
THE HEARING OFFICER: Thank you.
10
Mr. Kaplan?
11
MR. KAPLAN: Very briefly, your
12
Honor.
13
OPENING STATEMENT
14 BY MR. KAPLAN:
15
The charges, as Ms. Ryan has said to be
16 heard today, involve charges against the client,
17 Northern Illinois Service Corporation, for violation
18 of Section 21(p)(1) and that its claim that Northern
19 Illinois Service Corporation caused or allowed the
20 open dumping of waste in a manner resulting in
21 litter. And litter is going to be the subject of
22 the testimony offered here on behalf of Northern
23 Illinois Service Company today.
24
Evidence will show that the trees, which
8
1 are the subject of this alleged violation, have
2 never been litter as defined by Illinois case law.
3
THE HEARING OFFICER: Thank you,
4
Mr. Kaplan.
5
Ms. Ryan, do you want to call
6
your first witness?
7
MS. RYAN: Yes, we call Karre
8
Jacobsen.
9
THE HEARING OFFICER: Raise your
10
right hand and Cheryl will swear you in,
11
please.
12
(Witness duly sworn.)
13
KARRE JACOBSEN,
14 called as a witness herein on behalf of the
15 Complainant, having been first duly sworn, was
16 examined and testified as follows:
17
DIRECT EXAMINATION
18 BY MS. RYAN:
19
Q. State your name, please.
20
A. Karre Jacobsen.
21
Q. And where are you employed?
22
A. The Illinois EPA.
23
Q. What your job there?
24
A. I am a field inspector.
9
1
Q. Out of which region?
2
A. The Rockford region.
3
Q. How many years have you been a field
4 inspector in the Rockford region?
5
A. Almost six years.
6
Q. What are your duties as a field
7 inspector?
8
A. I go out to facilities such as
9 landfills and tire facilities, check for
10 West Nile Virus and also make sure -- also
11 with the landfills to make sure they are
12 going along with their permit as issued with
13 the State of Illinois.
14
Q. Do you also inspect open dumps?
15
A. Yes.
16
Q. Now, approximately how many
17 inspections have you conducted in your almost
18 six years here?
19
A. 940 inspections.
20
Q. What is your educational background?
21
A. Plant soil and science degree.
22
Q. From?
23
A. Southern Illinois, Carbondale.
24
Q. Have you had any other training
10
1 besides your degree?
2
A. Training within the agency such as
3 federal law enforcement training, 40-hour
4 hazardous waste training, miscellaneous other
5 training such as writing courses. That is
6 probably about it.
7
Q. Are you familiar with the facility
8 in Roscoe known as the Roscoe Quarry on
9 Rockton Road?
10
A. Yes, I am.
11
Q. Where approximately is that property
12 located?
13
A. It is right on the outside of Roscoe
14 about the west -- west of Roscoe, right off
15 of 251 on Rockton Road.
16
Q. How many inspections have you
17 conducted at this piece of property?
18
A. Two.
19
Q. Okay. I am going to show you what I
20 have marked as Exhibit 1. Can you tell me if
21 you recognize this document?
22
A. Yes, I do.
23
Q. What is it?
24
A. It is an inspection checklist that
11
1 was generated right after the October 10th,
2 2004 inspection.
3
Q. Will you page through this document
4 for me?
5
A. Uh-huh. Okay.
6
Q. Is this a fair, accurate and
7 complete copy of your report?
8
A. Yes, it is.
9
Q. Can you describe this property in
10 general?
11
A. It is right off of Rockton Road. As
12 soon as you go northbound on the gravel road,
13 there will be a trailer where an attendant is
14 there to check on people coming in and out of
15 the facility. Just north of the trailer is
16 concrete debris -- at the time there was
17 concrete debris with protruding rebar to fill
18 in low lying areas of the quarry.
19
Just northwest of there, I would say
20 there was approximately 9,700 cubic yards of
21 landscape debris. Mostly it looks like an
22 island with a moat, and it was probably --
23 you look at it probably ten to 13 feet high
24 of landscape debris.
12
1
Q. Are there any other features on the
2 property other than what you just described?
3
A. Just sand and growth of trees.
4 That's all.
5
Q. Who took the photographs that are
6 attached to this report?
7
A. Myself.
8
Q. And what is shown in each of the
9 photographs?
10
A. Photographs 1, 2, 3, 4 are the
11 pictures of the landscape debris that is on
12 the north side of the property. Also 5 and 6
13 are the pictures of landscape debris located
14 on the north side of the property.
15
Q. If I can stop you for one moment,
16 what type of material is included in this
17 landscape waste?
18
A. It mostly looks like uprooted trees,
19 also trees that have been cut. It has just
20 been placed there for a lengthy period of
21 time.
22
Q. And when you describe the -- well,
23 you said a moat, but I don't recall what else
24 exactly you said. Can you explain that a
13
1 little better?
2
A. You are surrounded with a bunch of
3 trees like --- and then right in the middle
4 there a big pile of trees in the middle. I
5 guess there is an access road that goes
6 around the inner part of these trees here.
7 It looks like it is accessible for dumping
8 debris and easy for the vehicle to get in and
9 out of there.
10
Q. Okay. You can continue with the
11 other photos.
12
A. Okay. Photograph 7 is a picture of
13 concrete with protruding rebar. And also
14 photograph 8 is conduit that has been placed
15 on the nearby concrete pile, which is located
16 on the west central section of the quarry.
17
Q. Do you know what material that
18 conduit is made from?
19
A. Steel.
20
Q. Did you observe anything else in
21 this -- in photograph 7 and 8 in that area
22 besides the concrete and the metal that you
23 have described?
24
A. What I saw in that -- in the
14
1 concrete pile is a lot of protruding rebar
2 throughout the pile.
3
Q. Okay. Do these photographs
4 accurately depict what you saw on
5 October 4th, 2004, at the site?
6
A. Correct.
7
Q. When was this report generated?
8
A. Probably October 5th, 2004.
9
Q. Does Illinois EPA keep these reports
10 in the regular course of its business?
11
A. Yes.
12
MS. RYAN: At this time I move
13
Exhibit 1 into evidence.
14
THE HEARING OFFICER: Mr. Kaplan?
15
MR. KAPLAN: No objection.
16
THE HEARING OFFICER: Okay.
17
Exhibit 1 is admitted into evidence.
18
(Whereupon document
19
so offered was
20
received in evidence
21
as Complainant
22
Exhibit No. 1.)
23
MS. RYAN: That is all I have at
24
this time.
15
1
THE HEARING OFFICER: Thank you.
2
Mr. Kaplan?
3
MR. KAPLAN: I got to take a look at
4
this for just a second, your Honor.
5
CROSS-EXAMINATION
6 BY MR. KAPLAN:
7
Q. Mr. Jacobsen, I am going to direct
8 your attention to page one of Exhibit 1 and
9 ask you to acknowledge what -- I am sure you
10 will, in that you have in generating this
11 report checked the box right below item 8,
12 21(p) with regard to one of things you found
13 being litter; is that correct?
14
A. Yes, sir.
15
Q. And am I correct in saying that that
16 litter is the trees as opposed to -- or the
17 landscape waste, as you called it, as opposed
18 to the rebar and the conduit; is that
19 correct?
20
A. Yes.
21
Q. Okay. Now, that is -- that litter
22 was wood?
23
A. Correct.
24
Q. Is that correct?
16
1
A. Correct.
2
Q. Okay. Now, are you familiar with
3 mulch sold in garden centers?
4
A. Yes.
5
Q. And that oftentimes is wood mulch?
6
A. Yes.
7
Q. So that wood mulch, they sell that
8 for whatever dollars a bag that they sell it;
9 is that correct?
10
A. I would assume so, yes.
11
Q. So that type of thing, obviously,
12 has an economic value because people buy it
13 and they use it in their gardens?
14
A. Correct.
15
Q. What is the -- you are a landscape
16 degreed guy from Southern. And what is the
17 purpose of using mulch?
18
A. For aesthetic purposes, for dressing
19 plants, for holding in moisture and building
20 around a house.
21
Q. Okay. And as far as -- this is
22 9,700 cubic yards of wood material that you
23 estimated was there or thereabouts?
24
A. Yes.
17
1
Q. And in deeming this litter, did it
2 enter -- it didn't enter into your mind that
3 this wood had the potential use of being used
4 for mulch?
5
A. No. At the time during my
6 inspection, I assumed that the -- not
7 assumed, but it came to my mind during the
8 inspection that the wood on that property is
9 considered as open dumped material. And the
10 way it was on the property, it looked like it
11 was open dump and it is going to be left
12 there for a lengthy period of time.
13
There could have been a market value
14 for it. But at the time of the inspection,
15 it was considered open dump material.
16
Q. At the time of the inspection?
17
A. At the time of the inspection,
18 initial inspection.
19
Q. Now, as far as open dump material,
20 is there a difference between -- or as I
21 understand it, I guess there is a
22 difference -- you tell me if there isn't --
23 between trees which come -- which are from
24 the property itself and trees which come in
18
1 from the outside?
2
A. Yeah, there is. Because most of
3 that debris was generated by a contractor
4 brought in from off-site.
5
Q. Okay. How did you learn that?
6
A. We have receipts indicating that
7 they were brought in from off-site. Yeah.
8
Q. And how did you obtain those
9 receipts, sir?
10
A. From the safety director from
11 Northern Illinois Service Company.
12
Q. What was that gentleman's name?
13
A. Ken Matteson.
14
MR. DeBRUYNE: Your Honor, do you
15
mind if I ask a few questions on this
16
same line?
17
THE HEARING OFFICER: Do you have
18
any objection?
19
MS. RYAN: No.
20
THE HEARING OFFICER: Go ahead,
21
Mr. DeBruyne.
22
CROSS-EXAMINATION
23 BY MR. DEBRUYNE:
24
Q. Mr. Jacobsen, when you visited the
19
1 site, was this the time you obtained these
2 records from Mr. Matteson?
3
A. That would be after the initial
4 inspection from -- in July we obtained
5 receipts from them.
6
Q. Your inspection occurred in October
7 of 2004?
8
A. 2004 we have an initial inspection.
9
Q. And then in July of 2005 --
10
A. 2004 -- 2004 -- July 2004 we did an
11 initial inspection.
12
Q. You did an initial inspection?
13
A. Yes.
14
Q. All right. And at that time you
15 obtained these invoices?
16
A. Yes, sir.
17
Q. And did you obtain them at the
18 location?
19
A. No. They were mailed to me.
20
Q. All right. And what did those -- do
21 you have those invoices with you?
22
A. Yes.
23
Q. All right. And have you had a
24 chance to look at those invoices before
20
1 today?
2
A. Yes.
3
Q. All right. And do the invoices
4 indicate the cubic yards of trees that were
5 brought on the premises?
6
A. There was just a dollar amount.
7
Q. Just a dollar amount?
8
A. Yes.
9
Q. All right. So when you looked at
10 the trees -- did you look at the trees in
11 July?
12
A. Yes.
13
Q. Okay. And did you ever do any
14 mathematical computation of any kind, that is
15 translating the dollars into the volume of
16 trees you looked at?
17
A. No.
18
Q. Okay. So do you know today how
19 those dollars that were -- you say were paid
20 to I guess people who brought trees out to
21 the premises, do you know how those dollars
22 relate or related then to the volume of trees
23 that were on the premises?
24
A. I just clearly went by an estimate
21
1 of how much volume was there. Because there
2 was a large amount.
3
Q. Okay. But my question was have you
4 ever done any mathematical calculation --
5
A. No, I didn't.
6
Q. -- let me give you an example, such
7 as the invoices show $1,000, this equates to
8 so many trees?
9
A. No, I did not.
10
Q. So there is no way that you can say
11 by looking at these invoices how many of the
12 trees or what percentage of the trees came
13 from off-site versus the trees that came from
14 on the site?
15
A. No.
16
Q. Okay. Now, how do you know these
17 invoices are evidence of payments to people
18 to bring trees onto the site?
19
A. These were -- my assumption was that
20 they were jobs that -- they were contracted
21 out by Northern Illinois Service Company to
22 have these contractors remove the trees
23 before they do probably any site renovations
24 and brought these trees from the site -- the
22
1 job sites onto the quarry.
2
Q. Okay. But you didn't get that from
3 Mr. Matteson? He didn't say that to you?
4
A. No. But he provided me receipts.
5
Q. But your testimony then, as I
6 understand it, is you have assumed without
7 any base knowledge from looking at the
8 invoice, so the source of your knowledge is
9 just looking at the invoice and then you
10 reach a conclusion?
11
A. Correct, correct.
12
Q. Okay. And do you have the invoice
13 available to you?
14
A. Yes.
15
Q. Okay.
16
MR. DeBRUYNE: May I see that,
17
Counsel?
18
(Document tendered.)
19
MR. DeBRUYNE: May I have a couple
20
minutes?
21
THE HEARING OFFICER: Sure. We can
22
go off the record.
23
(Short pause in
24
proceedings.)
23
1
THE HEARING OFFICER: We are back on
2
the record.
3
MR. DeBRUYNE: I don't have any more
4
questions.
5
MR. KAPLAN: Nor do I.
6
MS. RYAN: I have a few questions.
7
REDIRECT EXAMINATION
8 BY MS. RYAN:
9
Q. Karre, how did you determine that
10 the landscape material on the site was waste
11 and not garden mulch?
12
A. The way the trees were just laying
13 there. They are just -- the way they were
14 positioned. They were not processed. They
15 were just laid there just to rot.
16
Q. Were the trees usable in their
17 current form as garden mulch?
18
A. No.
19
Q. Was there any evidence of any
20 processing either prior to your inspection or
21 during your inspection?
22
A. None whatsoever.
23
Q. Do you know how long those trees had
24 been there in that position?
24
1
A. By the way it looks, probably two to
2 three years.
3
Q. And what do you base that on?
4
A. Just knowledge of my degree of how
5 plants have a tendency to decay.
6
Q. So did you observe evidence of decay
7 in the trees?
8
A. Somewhat on the base of the mounds
9 of landscape debris.
10
Q. And you had mentioned your previous
11 inspection from July. Were those same trees
12 there at that time?
13
A. Yes.
14
Q. And had the position or condition of
15 the trees changed between the July and
16 October inspections?
17
A. No.
18
Q. When you were provided the receipts
19 that you mentioned earlier from Mr. Matteson,
20 what did you ask him for?
21
A. I needed to see proof of some kind
22 of disposal. And apparently he sent me
23 receipts that allegedly look like these trees
24 were being brought off-site onto the
25
1 premises.
2
Q. So you were asking for receipts
3 indicating that the trees had been removed
4 from the quarry?
5
A. No. I was seeing what kind of --
6 kind of volume he was bringing in on the
7 premises.
8
Q. So you asked him for information as
9 to what material was coming onto the
10 property?
11
A. Yes.
12
Q. And this is what he sent you in
13 response?
14
A. Yes.
15
MS. RYAN: Thank you. That is all I
16
have.
17
THE HEARING OFFICER: Respondent's
18
recross?
19
MR. DeBRUYNE: No recross.
20
MR. KAPLAN: No.
21
THE HEARING OFFICER: All right.
22
You may step down, Karre, thank you, or
23
step aside.
24
Anything further, Ms. Ryan?
26
1
MS. RYAN: Not at this time. Thank
2
you.
3
THE HEARING OFFICER: Okay. The
4
complainant rests the case-in-chief.
5
Respondents?
6
MR. DeBRUYNE: Yes. We call Ron
7
Foss, F-O-S-S.
8
THE HEARING OFFICER: Mr. Foss,
9
please raise your right hand.
10
(Witness duly sworn.)
11
MR. DeBRUYNE: If Mr. Jacobsen has
12
completed his testimony for the day, he
13
can remain in the room, otherwise I ask
14
that he leave.
15
MS. RYAN: Actually, Karre, please
16
go back outside or back to your office.
17
RONALD FOSS,
18 called as a witness herein on behalf of the
19 Respondent, having been first duly sworn, was
20 examined and testified as follows:
21
DIRECT EXAMINATION
22 BY MR. DeBRUYNE:
23
Q. Would you state your name, please?
24
A. Ron Foss.
27
1
Q. Okay. And do you have a business in
2 this area?
3
A. Two businesses, Foss Landscapes and
4 Outdoor Living and Garden Center.
5
Q. All right. And what is -- how long
6 has Foss Landscapes been in business?
7
A. Ten, 12 years.
8
Q. Okay. And what does it do?
9
A. We do state and federal work,
10 residential, commercial landscaping and
11 construction.
12
Q. And when you say landscape
13 construction, can you be a little bit more
14 specific as to what type of materials you are
15 working with?
16
A. We work with brick pavers, retaining
17 walls, trees, shrubs, mulch, seed, sod to if
18 you were to buy a new home and there is no
19 yard, we can install that. Or we also do
20 work for the DOT where we seed ditches and
21 erosion control and stuff like that.
22
Q. All right. How many employees do
23 you have?
24
A. I have got about three full-time and
28
1 probably 15 seasonal.
2
Q. Are you licensed by the State of
3 Illinois?
4
A. Yes, we are certified by the State.
5
Q. And certified is what? What is it?
6
A. You have to be certified to do state
7 and federal work and some municipal projects
8 and stuff like that.
9
Q. All right. Okay. Now, you also
10 mentioned you have a retail shop?
11
A. Yes. It is a retail garden center
12 on North Second Street.
13
Q. Okay. And what are some of the
14 products that that outlet sells?
15
A. Evergreens, trees, shrubs,
16 perennials, mulch, top soils, paver brick.
17
Q. And are you involved in both
18 businesses?
19
A. Yes, uh-huh.
20
Q. And what is your relationship, if
21 any, to Northern Illinois Service Company,
22 the respondent here?
23
A. I worked for them back in the late
24 '80s, early '90s for two or three years.
29
1
Q. And do either of your businesses now
2 have any current relationship with Northern
3 Illinois Service?
4
A. Yeah. The retail center doesn't,
5 but the landscaping end of it, we will buy --
6 Northern Illinois Service has quarries. We
7 buy aggregates from them, road stone, hag
8 lime, stuff like that. And we also do
9 landscaping projects for them.
10
Q. Okay. Have you had an occasion to
11 visit the Northern Illinois Service Company
12 site right off of 251 near Rockton Road or
13 perhaps on Rockton Road known as the Roscoe
14 Quarry?
15
A. Yes.
16
Q. When was the last time you were
17 there?
18
A. I was there Monday.
19
Q. And have you been there -- do you
20 get up there frequently?
21
A. Well, he just had us do a project in
22 front of his pit there. The entrance into
23 the pit we did a bunch of work there last
24 week.
30
1
Q. Did you go up to that site in the
2 year 2004 at all?
3
A. Yeah.
4
Q. Okay. And last year were you up
5 there?
6
A. Uh-huh.
7
Q. With respect to uprooted trees or
8 dead trees or trees that aren't still
9 growing, what did you observe on any of these
10 occasions?
11
A. He had some trees piled up. It
12 looked like they had been knocked over, piled
13 up.
14
Q. Okay. Do you have any knowledge
15 from your experience as to what use can be
16 made of these trees, if any?
17
A. Yeah. They can be ground up into
18 mulch.
19
Q. Okay. And what is the purpose of
20 mulch?
21
A. Well, everybody sees it. It is
22 mulch you put around your trees and shrubs.
23 You know, it keeps the weeds down. It holds
24 moisture in when you water, it rains. It
31
1 puts nitrogen back into the soil. It's used
2 more as decorative around the mulch and
3 trees, shrubs, things like that, flower beds.
4
Q. And have you ever purchased mulch in
5 your business?
6
A. Oh, yeah. Both businesses.
7
Q. In both businesses?
8
A. Uh-huh.
9
Q. Have you ever manufactured mulch?
10
A. Yeah, uh-huh.
11
Q. And when you have manufactured it,
12 then have you gone on to sell it?
13
A. Yeah. I just hire -- Rockford
14 Blacktop does it for me. We have like ten
15 acres of trees. And as we cleared them, pile
16 them up and they come in with their tub
17 grinder, charge about 3, 400 bucks an hour
18 and they grind it all up. And we leave it
19 sit for 30 days and use it either on our jobs
20 or at the garden center, either one, resell
21 it.
22
Q. Obviously, you observed the
23 condition of the trees which you had Rockford
24 Blacktop grind up into mulch?
32
1
A. Uh-huh.
2
Q. And you observed the trees up at
3 Northern Illinois Service Company?
4
A. Same thing.
5
Q. Same thing?
6
A. Yeah, same thing. You have to knock
7 a little more of the dirt off the roots. You
8 don't want to run a lot of dirt through that
9 grinder. But that is about it.
10
Q. I want to show you some exhibits. I
11 want to show you what I marked as
12 Respondent's Exhibits 1 through 3 and ask you
13 -- let's go one by one.
14
Could you identify, first, what
15 Respondent's Exhibit 1 is?
16
A. It is a receipt to my Outdoor Living
17 landscaping business from Forest Pallet for
18 24 yards of brown mulch.
19
Q. Okay. And this is a purchase by
20 your retail outlet?
21
A. Yes.
22
Q. And it says double ground mulch, and
23 it says $12.50. It says quantity 80. What
24 is that, 80 what?
33
1
A. That is 80 cubic yards of double
2 ground mulch.
3
Q. So it is $12.50 per cubic yard?
4
A. Yes, it is.
5
Q. Okay. And is this -- to the best of
6 your knowledge, is this the market price for
7 this type of mulch?
8
A. Yes.
9
Q. And is this typical of the prices
10 that you would pay at your retail outlet for
11 it?
12
A. Yes.
13
Q. Okay. Please look at Respondent's
14 Exhibit 2 and identify what that is?
15
A. Which -- you have got these --
16
Q. Respondent's Exhibit 2?
17
A. The red mulch?
18
Q. That's correct.
19
A. Yeah. That is the paid invoice from
20 Outdoor Living. That is for some red mulch
21 that we purchased.
22
Q. And this is -- this is dated
23 April 14th. This is earlier this week,
24 right?
34
1
A. Must be, yeah, Monday, the 14th.
2
Q. Okay. Now, this is $14 a cubic
3 yard; is that correct?
4
A. Yes.
5
Q. And why is it 14 and not 12?
6
A. They consider this a designer mulch.
7 This actually is ground up pallets. It has a
8 die injected into it. And then we -- it is
9 sold as a designer mulch. Red mulch, brown
10 mulch, gold mulch, they make several
11 different colors.
12
Q. And then take a look at Respondent's
13 Exhibit 3. And please identify what that is.
14
A. It is 24 yards of brown mulch,
15 correct? You have got mine marked a little
16 different from yours.
17
Q. You say mine is marked different
18 from yours?
19
A. You have R-1 at the bottom of this
20 one (indicating).
21
Q. I am sorry. Maybe I got my exhibits
22 mixed up. The first one you were testifying
23 to was R?
24
A. R-3.
35
1
Q. R-3. Sorry.
2
So this again is what your retail
3 outlet paid for this?
4
A. Yes. Yeah. We paid 14 a yard for
5 that.
6
Q. 14 a yard. Now, with respect to the
7 sale price from your retail outlet to the
8 general public, what would they pay for brown
9 mulch or regular mulch, let's say?
10
A. Regular mulch, the standard double
11 processed hardwood mulch is 21.95 a yard I
12 think.
13
Q. Okay. And is there a different
14 price for the colored mulch?
15
A. Yes. That is more expensive. That
16 is like 28.95 a yard.
17
Q. And is that the price you commonly
18 receive for that mulch?
19
A. Yes.
20
Q. Now, when you manufactured your
21 mulch, what process did you have to go
22 through, mechanical process, to turn the
23 trees into the mulch?
24
A. There is a piece of heavy equipment.
36
1 It is -- there is several different kinds.
2 This particular one is a tub grinder, and it
3 acts like a big pencil sharper basically.
4 This big tub spins around and they have a big
5 claw that comes down and reach into a pile of
6 trees, pick it up, put it in this tub and
7 kind of shove it right down through there.
8
Q. Okay. What was the cost for you to
9 use that?
10
A. I hired -- I didn't use it. I hired
11 them to do it. And it was between 3 and 400
12 bucks an hour. I know that. I don't
13 remember the exact cost.
14
Q. All right. And did you find that
15 even paying that, you could make money by
16 paying that cost and manufacturing your own
17 mulch?
18
A. Yes. It was like half the cost of
19 what I would normally pay the 12.50.
20
MR. DeBRUYNE: Okay. At this time I
21
would offer into evidence Respondent's
22
Exhibits 1 through 3.
23
MS. RYAN: No objection.
24
THE HEARING OFFICER: So admitted.
37
1
(Whereupon documents
2
so offered were
3
received in evidence
4
as Respondent's
5
Exhibit Nos. 1
6
through 3.)
7
MR. DeBRUYNE: Nothing further.
8
THE HEARING OFFICER: Thank you.
9
Ms. Ryan?
10
MS. RYAN: I don't have anything.
11
Thanks.
12
THE WITNESS: Can I go?
13
THE HEARING OFFICER: Sure you may.
14
You are finished. Thank you, Mr. Foss.
15
I appreciate it.
16
MR. DeBRUYNE: Next witness will be
17
Wayne Klinger.
18
THE HEARING OFFICER: Please raise
19
your right hand and Cheryl will swear
20
you in.
21
(Witness duly sworn.)
22
23
24
38
1
WAYNE KLINGER,
2 called as a witness herein on behalf of the
3 Respondent, having been first duly sworn, was
4 examined and testified as follows:
5
DIRECT EXAMINATION
6 BY MR. DEBRUYNE:
7
Q. Would you state your name, please?
8
A. My name is Wayne Klinger.
9
Q. Okay. And are you the president of
10 Northern Illinois Service Company?
11
A. Yes.
12
THE HEARING OFFICER: I am sorry,
13
can you spell your last name, please?
14
THE WITNESS: K-L-I-N-G-E-R.
15
THE HEARING OFFICER: Thank you.
16 BY MR. DeBRUYNE:
17
Q. Okay. Wayne, we have had testimony
18 that there is -- the location involved in
19 this case is off of 251 near Rockton Road
20 called the Roscoe Quarry. Is that the site
21 that you own?
22
A. Yes.
23
Q. And when I say you, that is Northern
24 Illinois Service Company, right?
39
1
A. I think Demrix owns it.
2
Q. Okay. Is that a company that you
3 own?
4
A. Yeah, same thing.
5
Q. Okay. And when did you buy that
6 property?
7
A. Ten years ago. Ten years and maybe
8 two months ago.
9
Q. All right. And what is the nature
10 of the business of Northern Illinois Service
11 Company?
12
A. Basically, an excavating contractor
13 and a demolition contractor.
14
Q. Okay. And in the course of your
15 work, have you used fill from that Roscoe
16 Quarry on your jobs?
17
A. Some, yeah, some.
18
Q. And when I say fill, is that sand,
19 basically?
20
A. Bank run sand.
21
Q. Okay. And --
22
A. That means we dig in the bank and
23 haul it out. We don't screen or crush it.
24 We dig in the bank, put it in the truck and
40
1 haul it. That is called bank run.
2
Q. All right. When you do your jobs,
3 you -- I take it you dig up dirt and other
4 material?
5
A. Yes.
6
Q. And have you had occasion then to
7 take that dirt and other material back to
8 this Roscoe Quarry site?
9
A. Yes.
10
Q. Okay.
11
A. Yes, we do.
12
Q. Now, it is correct that right now
13 and when you bought the property, there have
14 been live growing trees on this property?
15
A. Yeah. There is live growing trees.
16 And there also was a pile of old trees back
17 there, pile of old trees I inherited.
18
Q. Okay. So when you first bought the
19 property, there were trees on the property?
20
A. Yeah, live trees and stacked up
21 trees.
22
Q. Okay. And in the course of
23 excavating for the fill, have you been taking
24 trees down?
41
1
A. Yes.
2
Q. Okay. Now, in your business when
3 you are excavating, do you have occasion in
4 doing your digging work to uproot live trees?
5
A. Yes.
6
Q. And on occasions do you have the
7 opportunity or does it -- does it happen that
8 there are a number of trees that are
9 uprooted?
10
A. Sometimes a whole pile of them, a
11 large, large amount of them.
12
Q. All right. In this case an issue is
13 the -- where -- the source of the trees, not
14 the growing trees, but the trees that are
15 lying down, the dead trees on the lot. And
16 in this case the complaint was filed, the
17 record will show the complaint was filed in
18 December of 2004 and the inspector was there
19 in July and he was there again in October of
20 '04.
21
Now, at that time do you have in
22 your mind the source of the trees that were
23 on the lot, that is were they from -- were
24 they from the property itself or were they
42
1 from off-site?
2
A. Okay. Some was there from day one.
3 I inherited them.
4
Q. Right.
5
A. Some came from my own property,
6 okay, from right -- when I clean up the dump
7 and I haul the trees back there. And, third,
8 the stragglers -- what I call stragglers.
9 Let's say I am excavating a job and there is
10 one tree, I don't have time to call anybody.
11 Usually, if they try to save a tree, they
12 can't, I take it up and dump it up there.
13 That has been going on from day one, the
14 straggler has been going up there.
15
Q. Okay. So the straggler is
16 S-T-R-A-G-G-L-E-R, a straggler tree. So I am
17 viewing a guy marching along in a column of
18 Army men and he falls behind, he can't keep
19 up.
20
A. That's a straggler.
21
Q. Yeah. That is the straggler. So if
22 I have got this little picture in my mind,
23 the whole column of Army men of trees, what
24 happens to that whole column that you uproot,
43
1 what do you do with those?
2
A. I don't do it. I hire them people
3 there. I hire a guy out of Chicago and
4 Flying W -- what is the name of the guy out
5 of Chicago? I can't think of his name right
6 now. Look in the invoice, tell me what his
7 name is.
8
Q. Well, I want to --
9
A. He is good. He is good.
10
Q. Okay.
11
A. He is good at it.
12
Q. But you -- I have -- and I want to
13 -- I am going to show you these. I am not
14 going to introduce them into evidence. But
15 just -- I am showing you some documents you
16 showed me this morning. And just describe
17 what that pile of documents is.
18
A. Okay. Trees to me, I am not
19 efficient doing that. I don't want to do it.
20 It is a pain in the -- I can't say the word.
21 It is a pain, so I don't do it. I hire
22 Flying W to do it. And there was another
23 company. Try-State, Tri-City -- yeah, A-1
24 Tree Service, Midwest. Midwest is the big
44
1 one. We hire A-1 Tree Service, they come and
2 take my trees out.
3
Q. When you say they take your trees
4 out, you mean on the jobs that Northern
5 Illinois Service is hired to do as an
6 excavator, when you uproot the Army of
7 trees --
8
A. I don't even uproot them, they come
9 and take them.
10
Q. When they take them, where do they
11 put them?
12
A. They grind them up and put them in
13 the truck and away they go.
14
Q. Do they put them in the Roscoe
15 Quarry?
16
A. No, no, no, can't do that.
17
Q. So if I understand you, the trees
18 that -- the only trees that you put in in the
19 quarry premises are the stragglers?
20
A. Stragglers, yes.
21
Q. And what is the reason why you would
22 take a straggler up there and not use one of
23 these services?
24
A. I got to get it done right now and
45
1 they can't come out for one tree.
2
Q. Okay.
3
A. But here, I want to add one thing.
4 Down there, they just opened a place up on
5 Route 72. Now, the stragglers don't go up
6 there anymore. I take them down to 72 and
7 64. A guy down there takes the trees now.
8 The stragglers don't go there anymore. He
9 opened about two, three years ago.
10
Q. Okay. We had some documents here
11 before. Are those still available?
12
MS. RYAN: I have to go back and get
13
them. Karre took them with him.
14
THE HEARING OFFICER: We can go off
15
the record.
16
(Short pause in
17
proceedings.)
18
THE HEARING OFFICER: Back on
19
record.
20 BY MR. DeBRUYNE:
21
Q. Mr. Klinger, I want to show you some
22 documents that were testified to earlier by a
23 witness in this case. And can you tell me
24 what type of transaction these -- first of
46
1 all, what these documents are and what kind
2 of a transaction do they relate to?
3
A. Real simple, like this Midwest. He
4 is a good guy. He comes, cut a whole bunch
5 of trees out. Let me see where he took them
6 out at. Some place, yes, he come and took
7 the trees for ten grand. I paid him $10,000
8 to take the trees out, grind the stumps up so
9 we can go to work.
10
Q. What I want you to do is look at all
11 these documents and tell me whether any of
12 these trees that are -- that these documents
13 relate to, whether any of those trees ended
14 up in the Roscoe Quarry?
15
A. No.
16
Q. Take a look through each one.
17
A. I will look through each one to make
18 everybody happy. I will look through each
19 one. No. No. This Flying W, he is real
20 good at it. He got trees up in the wire. He
21 is good at that, is he good at that. Whoo.
22 Some of these a little bit, they come up like
23 on a bad tree, he is 325 here, 825 there, 950
24 there, 425, 450, 2,200. Amcor Bank, North
47
1 Main.
2
No, I paid out. I wrote checks. I
3 got cashier's checks to show everybody.
4
Q. Those would relate to -- as we
5 talked about the straggler, that is the Army
6 of trees --
7
A. Yeah.
8
Q. -- they didn't end up in the quarry?
9
A. Right. Here is a signed check if
10 they want to see where I signed it
11 (indicating).
12
Q. Now, did there come a time in the
13 year 2004 where you applied to the EPA for an
14 open burning permit?
15
A. Yeah, a burner.
16
Q. A burner?
17
A. A burner, a pressure burner.
18
Q. Okay. And do you remember when you
19 did that?
20
A. Yeah, September of '04.
21
Q. Okay. And I want to show you what
22 has been marked as Respondent's Exhibit No. 4
23 and ask if you can identify this document?
24
A. That is a permit.
48
1
Q. All right.
2
A. I placed a permit.
3
Q. From the IEPA?
4
A. Yeah.
5
Q. Now, you have -- and you have had
6 occasion then to burn some of these trees
7 with that?
8
A. Yes, yes, I have.
9
Q. Okay. Do you have any knowledge of,
10 if you had to, a percentage of the trees that
11 we are looking at up there let's say in
12 October of '04, the dead trees, how many are
13 from your site and how many stragglers?
14
A. There was probably at least 20 to
15 25 percent I inherited, okay. Probably
16 another 50 percent when I came to the site,
17 40, 50 percent. And the rest were
18 stragglers. There was a big pile when I
19 inherited the place, when I bought it.
20
MR. DeBRUYNE: I would move for the
21
introduction of Respondent's Exhibit 4.
22
MS. RYAN: I have to object to
23
Exhibit 4 in that it postdates the
24
inspection that is the subject of the
49
1
Administrative Citation. So it is not
2
really relevant to the violations that
3
occurred on that day.
4
THE HEARING OFFICER: I don't have a
5
copy.
6
MS. RYAN: I am sorry.
7
(Document tendered.)
8
MR. DeBRUYNE: If I may respond,
9
your Honor?
10
THE HEARING OFFICER: Sure, you may.
11
MR. DeBRUYNE: I believe it is
12
relevant in that the complainant in this
13
case is simultaneously saying that the
14
trees are in some way waste and litter
15
and permitting the respondent to burn
16
the trees. The application process
17
commences in September of '04, and it
18
reaches completion in December of '04.
19
And the -- while this is going on, the
20
investigation commences and the
21
complaint is filed in November '04. So
22
I think it is very relevant certainly as
23
to time and certainly as to culpability
24
in this case as to whether we are really
50
1
creating any type of environmental
2
hazard.
3
MS. RYAN: May I respond further?
4
THE HEARING OFFICER: Yes, you may.
5
MS. RYAN: I think further that the
6
fact that a permit may have been granted
7
following the inspection that is the
8
subject of this Administrative Citation
9
is relative only to the violation of
10
operating without a permit, which is not
11
being alleged in this case.
12
And given that it is an open
13
burning permit and open burning is not
14
being alleged in this case, it is again
15
three times irrelevant.
16
THE HEARING OFFICER: You know, I am
17
going to allow it and I am sure the
18
Board will weigh it accordingly. Thank
19
you.
20
Exhibit 4 is admitted over
21
objection.
22
23
24
51
1
(Whereupon document
2
so offered was
3
received in evidence
4
as Respondent
5
Exhibit No. 4.)
6
MR. DeBRUYNE: I have no further
7
questions.
8
THE HEARING OFFICER: Thank you.
9
Ms. Ryan, cross?
10
MS. RYAN: I don't have any
11
questions. Thank you.
12
THE HEARING OFFICER: You may step
13
down, sir.
14
THE WITNESS: Thank you.
15
THE HEARING OFFICER: Thank you very
16
much.
17
MR. DeBRUYNE: I have nothing
18
further. No further witnesses.
19
THE HEARING OFFICER: So you rest.
20
MR. DeBRUYNE: We rest.
21
THE HEARING OFFICER: Ms. Ryan, any
22
rebuttal?
23
MS. RYAN: No rebuttal. Thank you.
24
THE HEARING OFFICER: Let's go off
52
1
the record.
2
(Discussion had off
3
the record.)
4
THE HEARING OFFICER: We are back on
5
the record. And before I forget, I want
6
to make a credibility determination.
7
And based on my experience, knowledge
8
and observations, I find that there are
9
no credibility issues with any of the
10
witnesses that testified here today.
11
The parties have represented
12
that they wish to reserve their closing
13
argument for the post-hearing brief.
14
And we also discussed off
15
record a post-hearing briefing schedule.
16
We surmise that the transcript will be
17
available on or before May 2nd. The
18
IEPA -- the complainant's opening brief
19
is due May 23rd. Respondent's brief is
20
due June 12th. And the complainant's
21
reply, if any, is due June 27th. I set
22
May 10th, 2006, for public comment.
23
With that said, any other
24
issues, questions?
53
1
MS. RYAN: No thank you.
2
MR. DeBRUYNE: No thank you.
3
THE HEARING OFFICER: Thank you very
4
much, Counselors. Have a nice day.
5
(Proceedings concluded.)
6
7
8
9
10
11
12
13
14
15
16
17
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19
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54
1 STATE OF ILLINOIS )
) SS:
2 COUNTY OF LAKE )
3
4
I, Cheryl L. Sandecki, a Notary Public
5 within and for the County of Lake and State of
6 Illinois, and a Certified Shorthand Reporter of the
7 State of Illinois, do hereby certify that I reported
8 in shorthand the proceedings had at the taking of
9 said hearing and that the foregoing is a true,
10 complete, and correct transcript of my shorthand
11 notes so taken as aforesaid, and contains all the
12 proceedings given at said hearing.
13
14
___________________________________
15
Notary Public, Cook County, Illinois
C.S.R. License No. 084-03710
16
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