Microsoft Word - PCB 07-84.txt

ILLINOIS POLLUTION CONTROL BOARD

AMERICAN BOTTOM CONSERVANCY )

and SIERRA CLUB,

)

Plaintiffs,

)

PCB 07-84

vs.

)

CITY OF MADISON, ILLINOIS )

and WASTE MANAGEMENT OF

)

ILLINOIS, INC.,

)

Defendants.

)

RECORD OF HEARING

August 23, 2007

Opening Comments by Hearing Officer Webb: Page 4

Opening Statement by Petitioners: Page 6

Opening Statement by Respondent, Waste Management: Page 6

Direct Examination of Kathy Andria by Petitioners: Page 8

Cross Examination of Kathy Andria by Waste Management:

Page 31

Cross Examination of Kathy Andria by City of Madison:

Page 82

Re-Direct Examination of Kathy Andria by Petitioners:

Page 121

Re-Cross Examination of Kathy Andria by Waste Management:

Page 125

Re-Cross Examination of Kathy Andria by City of Madison:

Page 132

Second Re-Cross Examination of Kathy Andria by Waste

Management: Page 134

Reported by Holly A. McCullough, C.S.R., C.C.R., R.P.R.

Keefe Reporting Company

ILLINOIS POLLUTION CONTROL BOARD

AMERICAN BOTTOM CONSERVANCY )

and SIERRA CLUB,

)

Plaintiffs,

)

PCB 07-87

vs.

)

CITY OF MADISON, ILLINOIS )

and WASTE MANAGE OF

)

ILLINOIS, INC.,

)

Defendants.

)

APPEARANCES:

For Petitioners:

Great Rivers Environmental Law Center

by: Bruce A. Morrison

705 Olive Street, Suite 614

St. Louis, MO 63101-2208

For Respondent, City of Madison:

Callis, Papa, Hale, Szewczyk, Rongey & Danzinger, P.C.

by: John Papa

1326 Niedringhaus Avenue

Granite City, IL 62040

For Respondent, Waste Management:

Pedersen & Houpt

by: Donald J. Moran

161 North Clark Street, Suite 3100

Chicago, IL 60601-3224

Also for Respondent, Waste Management:

Livingstone Law Firm

by: Penni S. Livingston

5701 Perrin Road

Fairview Heights, IL 62208

Keefe Reporting Company

INDEX OF EXHIBITS:

ABC/Andria Exhibit No. 1 -- Page 133, 136, 139-143

ABC/Andria Exhibit No. 2 -- Page 136, 139-143

ABC/Andria Exhibit No. 3 -- Page 136, 139-143

ABC/Andria Exhibit No. 4 -- Page 136, 139-143

ABC/Andria Exhibit No. 5 -- Page 136, 139-143

ABC/Andria Exhibit No. 6 -- Page 136, 139-143

ABC/Andria Exhibit No. 7 -- Page 136, 139-143

ABC Exhibit No. 8 -- Page 136, 139-143

ABC Exhibit No. 9 -- Page 137, 142-143

ABC Exhibit No. 10 -- Page 137, 143

ABC Exhibit No. 11 -- Page 27-29, 101-103, 105-107, 121-123,

137

WMII Exhibit No. 1 -- Page 144-145

City of Madison Exhibit No. 1 -- Page 95, 145

City of Madison Exhibit No. 2 -- Page 145-146

(Exhibits were marked for identification by respective

parties and were retained by the Hearing Officer.)

Keefe Reporting Company

BE IT KNOWN that a record of hearing was made on August

23, 2007, at the Madison County Administration Building,

County Board Room 203, 157 North Main Street, Edwardsville,

Illinois, before Holly A. McCullough, an Illinois Certified

Shorthand Reporter, a Missouri Certified Court Reporter, a

Registered Professional Reporter and a Notary Public. Also,

it is stipulated and agreed by and between counsel for

Plaintiff and counsel for Defendant that this record may be

taken in stenotype by Holly A. McCullough and thereafter

transcribed into typewriting.

HEARING OFFICER WEBB: Good morning. My name is Carol

Webb. I'm a Hearing Officer with the Pollution Control

Board. This is PCB 07-84, American Bottom Conservancy and

Sierra Club versus City of Madison and Waste Management of

Illinois. It is August 23rd, 2007, and we are beginning at

9:00 a.m.

At issue in this case is Waste Management's application

to expand the Milam recycling and disposal facility located

in Fairmont City to a site called North Milam located in the

City of Madison. Petitioner appeals on the grounds that the

City's proceedings were not fundamentally fair and that the

City's approval of the siting application was against the

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manifest weight of the evidence. The decision deadline is

November 15th, 2007.

You should note that it is the Pollution Control Board

and not me that will make the final decision in this case.

My purpose is to conduct the hearing in a neutral and orderly

manner so that we have a clear record of the proceedings. I

will also assess the credibility of any witnesses on the

record at the end of the hearing.

I'll note for the record that we do have a couple

members of the public present. The procedural rules and the

Act provide that members of the public shall be allowed to

speak or submit written statements at hearing. I will call

for any statements from members of the public at the

conclusion of the proceeding.

This hearing was noticed pursuant to the Act and the

Board's rules and will be conducted pursuant to Sections

101.600 through 101.632 of the Board's procedural rules.

At this time, I would like to ask the parties to please

make their appearances on the record.

MR. MORRISON: Bruce A. Morrison, attorney for both

Petitioners, American Bottom Conservancy and Sierra Club.

MR. MORAN: Donald Moran on behalf Waste Management of

Illinois, Inc.

MR. PAPA: John C. Papa on behalf of the City of

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Madison.

MS. LIVINGSTON: And Penni Livingston on behalf of Waste

Management of Illinois.

HEARING OFFICER WEBB: Thank you. Are there any

preliminary matters anyone wishes to discuss on the record?

(No response.)

HEARING OFFICER WEBB: "No"? Okay. Would the

Petitioners like to give an opening statement?

MR. MORRISON: Well, I've got a few sentences.

Petitioner's case will be based largely on the record made

before the City of Madison. Part of the case, though, is

whether Madison conducted the proceedings in a fundamentally

fair manner. Miss Kathy Andria will testify on behalf of

both Petitioners that the proceedings that Madison conducted

were not fundamentally fair for reasons in the pleadings. At

the hearing, she was prohibited from questioning Waste

Management's witnesses about archaeological issues at the

proposed North Milam site. She was prohibited from

questioning Waste Management's witnesses about wetland issues

of the site. That will be some of the proof that will be

presented.

HEARING OFFICER WEBB: Thank you. Would the Respondents

like to make an opening statement?

MR. MORAN: Yes, just briefly. The proceedings held by

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the City of Madison in all respects supported what the

applicable rules providing for fundamental fairness of a

siting hearing for local government bodies. Applicable case

law both from the Appellate Court and the Pollution Control

Board itself make clear that the right of fundamental

fairness of any participant has relates to the right to

present a case, to present evidence, in fact, cross examine

witnesses, and to obtain impartial rulings on the evidence.

The evidence that will be presented here will amply

demonstrate that Miss Andria, American Bottom Conservancy and

Sierra Club had full and ample opportunity to present

whatever case, whatever evidence they believed was

appropriate, cross examine any witnesses on matters that were

pertinent and relevant to the proceeding here. The

contention that the American Bottom Conservancy and Sierra

Club were unable to question any witnesses on relevant

matters will seem to be unfounded, and that some of the areas

that were desired to be acquired about were, in fact, matters

of no relevancy for a siting.

So, when all the evidence is presented on these issues,

it will be eminently clear that fundamental fairness was

provided these Petitioners, and that the decision ultimately

of the City of Madison ought to be affirmed. Thank you.

HEARING OFFICER WEBB: Thank you. Does the City have

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any?

MR. PAPA: City will waive them.

HEARING OFFICER WEBB: Thank you. Mr. Morrison, you may

call your first witness.

MR. MORRISON: Thank you, Miss Webb. And before I

forget here, as part of the Plaintiffs' case -- this may not

be necessary, but I know there's a case on -- a record made

and a record has been filed with the Illinois Pollution

Control Board. I'd like to move that that record be part --

be entered into evidence, if that is necessary.

HEARING OFFICER WEBB: It is not necessary.

MR. MORRISON: I appreciate it. Thank you. And,

Mrs. Kathy Andria, would you please take the stand.

KATHY ANDRIA, called as a witness, is sworn in under

oath.

D I R E C T E X A M I N A T I O N

by Mr. Bruce A. Morrison:

Q. Please state your name.

A. Kathy Andria.

Q. And what is your position with American Bottom

Conservancy and Sierra Club?

A. I am president.

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Q. Is American Bottom Conservancy an Illinois

corporation in good standing?

A. Yes.

Q. Would you please tell us about the mission or the

objectives of American Bottom Conservancy?

A. American Bottom Conservancy was formed to

protect, preserve, enhance, restore and promote the cultural

and natural resources of the American Bottom floodplain and

to educate the public as to the importance of those

resources.

Q. Does American Bottom Conservancy have any

interest in the preservation of Horseshoe Lake State Park?

A. Yes. American Bottom Conservancy is -- has

worked to conserve the wetlands of the American Bottom, to

protect Horseshoe Lake, to protect water sources, water

supply and also to increase the amount of land that's

preserved and to keep it from development.

Q. Does American Bottom Conservancy as part of its

mission or objectives have any interest in preserving or

enhancing the Cahokia Mounds world heritage site?

A. American Bottom Conservancy has been working

since its beginning to preserve the cultural resources,

archaeological resources in the American Bottom. We are

working currently to establish a trail that links Cahokia

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Mounds with the Eads Bridge that goes along the mounds

through East St. Louis, and we've worked on various sites

throughout the American Bottom to keep them from developing,

to make sure that the integrity of the resources and the

Native Americans' heritage is protected.

Q. And what work has American Bottom Conservancy

done in connection with the siting of landfills in American

Bottom?

A. I'm sorry. You're going to have to speak louder,

Mr. Morrison.

Q. What work has American Bottom Conservancy done

over the years in connection with the siting of landfills?

A. We participated in various landfill siting

decisions and permitting decisions with regard to the

landfill that's in the middle of the Mississippi River, Shoto

(phonetic) Island, which is a Waste management landfill, with

regard to the expansion of the Milam landfill in Fairmont

City, which is the existing landfill, and with regard to

encroachment into wetlands through the 404 Clean Water Act

permitting process.

Q. Okay. Now, tell me, does American Bottom

Conservancy at this point have a physical office address?

A. No, we do not.

Q. Are you using a post office box as your address?

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A. Yes, we are.

Q. Have you taken steps to change that physical

office address?

A. We are registered -- It was brought to our

attention that we are existing -- the address of the

registered agent was wrong in the deposition. So, we've

corrected that. We have an office registered agent now at

402 East Main in Mascoutah. Yes, we would love to have a

physical office.

Q. And that is something that you addressed just

yesterday, I believe?

A. That's correct.

Q. Now, does American Bottom Conservancy have any

members?

A. Yes. We have about 110 or so members.

Q. Are you a member of American Bottom Conservancy?

A. Yes, I am.

Q. Do you visit the area in the vicinity of the

proposed North Milam landfill?

A. Yes, I do.

Q. Where do you go?

A. I visit Horseshoe Lake at least once a week on

average, sometimes more, sometimes less. I visit Eagle Park

Marsh, which is not far from there. It's on the Illinois

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natural inventory's list. I drive by the landfill

frequently. So, I'm in the area, and I also visit Canteen

Lake, and I keep an eye on wetlands in that area and report

anything to the Corps of Engineers that I think is an

encroachment on wetlands.

Q. And how often do you make these visits?

A. I am in that area usually several times a week.

Q. During any of these visits, are you with other

members of American Bottom Conservancy at any time?

A. Sometimes.

Q. How about, are you with any members of Sierra

Club?

A. Sometimes.

Q. Is American Bottom Conservancy concerned about

the impacts of the proposed North Milam landfill?

A. Extremely concerned, yes.

Q. What are the concerns for you?

A. It is -- I'm sorry. Did you ask me the new

landfill?

Q. The proposed North Milam landfill.

A. Yes, we're concerned, first, that it's located in

wetlands, that it's located in an archaeologically important

area, that it's located about 2,000 feet from Horseshoe Lake,

and that it's located within I think 2,100 feet of the

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Cahokia Mounds world heritage site and national historic

landmark boundaries.

Q. Backing up for a few questions back, when did you

last check the status of American Bottom Conservancy with the

Illinois Secretary of State as far as whether the corporation

is in good standing?

A. This morning.

Q. And what did the Secretary of State's records

show?

A. It said that we were in good standing.

Q. Now, tell me, do you have any positions with

Sierra Club?

A. Yes. I'm conservation chair for the Kaskaskia

group, I'm chair of the state chapter for the waste land

recycling committee, I'm on the clean air campaign for the

state, and I'm also on Midwest coal group, and I'm on the

water quantity committee.

Q. Is Sierra Club a corporation in good standing?

A. Yes, it is.

Q. Can you tell me something briefly about Sierra

Club's missions and objectives as they relate to the

floodplain in the area?

A. Well, the mission of Sierra Club is to explore,

enjoy and protect the planet. It's worked for many years on

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work on the floodplain issues and protecting the rivers, the

impacts to the river and on -- in the American Bottom and in

the rivers leading to the Mississippi River.

Q. And has its work in particular dealt with the

Mississippi River -- part of the Mississippi River in the

vicinity where the proposed North Milam facility is proposed

to be located?

A. Yes. There's a committee -- a national committee

that addresses river and floodplain issues, and the local

groups have worked on wetlands and floodplain issues.

Q. Does the Sierra Club have members?

A. Yes.

Q. About how many of them in Illinois?

A. In Illinois, it's about 26,000. In the national,

it's, according to the web site, 1.7 million, and locally

there's perhaps 1,500 local members in the Metro East in two

groups, and then there are many more across the river in the

Eastern Missouri group.

Q. Are you a member of Sierra Club?

A. Yes, I am.

Q. And did any members of Sierra Club participate in

the public hearing before the City of Madison?

A. Yes, they did.

Q. Did any members of American Bottom Conservancy

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participate in the public hearing before the City of Madison?

A. Yes, they did.

Q. Let me switch gears on you and get away from

standing issues, start talking about fundamental fairness

issues. Now, are you familiar with an ordinance of the City

of Madison relating to conducting a public hearing for siting

landfills?

A. Yes, I am.

Q. When did you first learn that there was a City

ordinance governing the procedures for a public hearing for

siting a landfill or a pollution control facility?

A. On the Monday before the hearing. I think it's

December 18th.

Q. And how was it that you came to learn about the

ordinance?

A. I visited the office of the City of Madison, City

Hall, the clerk, and I saw the ordinance.

Q. Okay. What efforts did you make to obtain a copy

of that ordinance?

A. I asked for a copy of the ordinance, to have a

copy of the ordinance.

Q. Okay. And were you charged for a copy of the

ordinance?

A. I was -- They quoted me a figure of I believe it

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was $5 for the first so many pages, and then it was a dollar

a page afterwards, and I asked if that was what they charged

for everything that they did, and they said, "Yes." I said,

"Even if somebody gets one piece of paper, it's $5?" Then I

asked if there was a copy at the local library, because my

memory from the library is that they charged, I think, a

quarter a page. The woman said, "No." The person behind the

counter said, "No," that there wasn't one.

MEMBER OF THE PUBLIC: Can you speak up? It's hard to

hear.

A. Is this better? I'm sorry.

(Member of public nods head.)

A. The person behind the desk said, "No," there was

not a copy at the library, and she went to a telephone, and

she called someone and spent a little time on the phone

discussing my request, and that -- and I didn't hear her

conversation, but I know that she was talking to someone on

the phone about the request.

BY MR. MORRISON:

Q. Did you consider the charge that Waste Management

sought to impose for that ordinance excessive?

MR. MORAN: Objection. I don't think Waste Management

is charging for records.

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MR. MORRISON: I'm sorry.

MR. PAPA: The City would acknowledge that the City was

making the charges.

HEARING OFFICER WEBB: Yes. Would you like to re-ask

the question?

MR. MORRISON: I would.

BY MR. MORRISON:

Q. Before I ask it, I think probably Waste

Management deserves a better plug than that because during

the course of these proceedings, Waste Management had given

you documents relating to this siting without charge; right?

A. They absolutely did.

Q. They've been very good in that respect?

A. Yes, they have.

Q. In particular, Miss Livingston and Joe Durako

over there?

A. Yes.

MR. MORRISON: I'm not to here bash --back to the City

bash.

MR. PAPA: None taken, sir.

BY MR. MORRISON:

Q. So, the charge that the City of Madison sought to

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impose, did you consider that to be excessive?

A. Yes. It's my understanding to get documents --

for the public to get documents, they're supposed to be

charged the cost of the production, and local Kinko's, etc.,

Casey's charge from 7 cents to 10 cents to 15 cents to a

quarter, and I think a dollar a page is excessive.

Q. Why does that make a difference to you that it's

excessive?

A. Because I and our organization have limited

funds.

Q. Do you charge members anything to be members of

for American Bottom Conservancy?

A. No. I also think it's unfair for the general

public, not just for me, citizens of Madison.

Q. Now, in your view, before the hearing before the

City of Madison, did you receive any information that you

considered to be inaccurate concerning how the hearing would

be conducted?

A. I'm sorry. Would you repeat that?

Q. Before the hearing the City of Madison held, did

you receive any information from anyone with the City that

you considered to be not accurate concerning how the hearing

was to be held?

A. Yes. I called on Friday the week before the

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hearing. I think the hearing was on December 21st and

December 22nd, and I called that Friday to the City Hall, and

I asked if there were -- if there was anything in place that

I have to register or what were the rules with regard to the

hearing.

Q. Okay. And what were you told?

A. It was a gentleman who answered the phone, and he

said, "No. Just show up."

Q. But then after that, you took some steps to

obtain -- well, seek out a City ordinance?

A. Well, before I did that, I asked how the hearing

was going to be conducted, who was going to be testifying, if

there were any information about that, and he directed me to

call the City attorney, John Papa, and gave me a phone number

to call.

Q. Now, jumping ahead a couple of days to when you

went to City Hall to get a copy or saw that there was an

ordinance that the City of Madison had, at what point did you

review that ordinance?

A. I'm sorry. At what point --

Q. Did you at some point review the ordinance that

you obtained from the City of Madison?

A. I looked at it. I didn't read it all right then,

but I scanned it right then.

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Q. Okay. And what did you learn after reading that

ordinance about how the proceedings were to be conducted?

A. That I was supposed to have everything --

anything I was going to submit, any reports, a list of

witnesses, all of these -- the things that are contained in

one of those paragraphs, I was supposed to have done that the

previous Friday.

Q. So, after reading that ordinance, did that have

any effect on how you conducted your portion of the

proceedings before the City of Madison?

A. I'm sorry. I'm having trouble hearing.

Q. So, after reading that ordinance, did that have

any effect on the manner in which you dealt with the facts

and proceeded before the City of Madison at a public hearing?

A. Well, I had been hoping to do some -- have some

information and questions and perhaps a report on the

archaeology of the site and to be able -- I had gotten a copy

of some archaeology papers from Miss Livingston -- well,

actually, from Mr. Durako, and that interfered -- since I was

not going to be able to present anything or since we weren't

going to be able to have reports or anything, that that

changed the conduct of how we would tackle the public

hearing.

Q. Okay. As far as change, you make an allegation

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in the Petition about the City having changed its rules

governing the conduct of the proceedings. Is this what

you're speaking about, or is this what the allegation goes to

as far as changing rules?

A. No. There were different rules that were

changed, different things that happened along the way before

the hearing and during the hearing that seemed to shift.

When the hearing was going to be called, there was suddenly a

hearing that had not been public noticed that was at night

that was -- actually, we were invited to by the Corps of

Engineers, but we didn't understand what that purpose and who

was holding that hearing. There was -- Whether we could

submit something and whether we couldn't, Mr. Moran agreed

that we couldn't in the beginning, and then at the end of it,

he allowed to submit things. So, there was a shifting --

There was shifting rules and different things that happened

throughout the process.

Q. I suppose, if there are any changes in the rules

of the proceedings happening during the hearing, those

changes would be reflected in the transcript itself?

A. Yes.

Q. Have you talked about all the rule changes that

occurred before the hearing, before a transcript was made?

A. All of the rule changes?

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Q. So far, I've only heard one, and there may only

be one, about being told one thing on a Friday before the

hearing by a City official as far as just showing up, and an

ordinance saying something else. I just want to make sure

that I'm covering the allegations in the Petition.

A. There may be. It's not coming to my mind right

at this moment. Perhaps I'll be able to think of something

as the hearing goes on.

Q. Let me ask you a little bit about archaeology,

archaeological issues brought up at the hearing. Before the

hearing, did you receive any papers from anyone concerning

archaeological issues in connection with the proposed

landfill?

A. Yes. I received some papers from Mr. Durako that

he said he didn't know if that was all they had on

archaeology, and I had been asking for the archaeology report

for quite some time, and I don't know the exact date Miss

Livingston had me sign that I received it. So, she would

have that information, but I don't know the exact date, but

it was only within a few weeks of the public hearing.

Q. Now, these papers that you received, did you --

what did you do with these papers?

A. I contacted Dr. John Kelly, who's an

archaeologist. I took them also to show some other people.

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I gave the file to Dr. Kelly, and he reviewed it and made

notes, and he put stickies at various points on it.

Q. You say Dr. Kelly is an archaeologist. Does he

practice in archaeology?

A. He has -- He is a consultant. He teaches at

Washington University. He works with Cahokia Mounds, does a

lot of the archaeological digs at the Mounds, conducts

archaeology classes with teaching students archaeology

techniques, and he's an expert on the Mississippian culture

and the East St. Louis Mounds group.

Q. Was Dr. Kelly critical in any way of the papers

that you gave him that you received from Waste Management

concerning archaeological issues?

MR. MORAN: Objection. There's an attempt here to now

find out what Dr. Kelly may have reviewed, evaluated with

respect to some documents that were given to him, and in

indeed it may very well be whatever this evaluation is we're

about to hear is information that may have been presented at

the siting hearing I believe these Petitioners claim have

some relevance to the siting hearing. So, now we're getting

into the area of substantive testimony about allegedly

relevant matters in this hearing and not simply a fundamental

fairness proceeding. I object to the relevance of this, and

there appears to be an attempt to introduce evidence that

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should have been presented during the siting hearing.

MR. PAPA: The City would join in that objection.

HEARING OFFICER WEBB: Okay.

MR. MORRISON: I think this will all become clear a few

more questions down the road, but the substance of what Dr.

Kelly said -- Now is probably a good time to pass out these

Exhibits and see what gets admitted into the record and what

doesn't. But what we're going to hear very soon is on

fundamental fairness, and this is in the transcript, but the

transcript will show that there was an attempt by Ms. Andria

to question at the hearing a Waste Management witness about

archaeological issues at the site, and there were objections

made that these questions about, "Well, what about these

mounds found within the area where the landfill is proposed,

what the significance of these?", there was an objection that

there was no significance. There was no relevance. This

didn't have anything to do with compatibility with the

existing area. So, what these notes are going to be relevant

for, they're going to support Ms. Andria's testimony that she

was prepared at that hearing to bring out testimony from the

applicant's witnesses about archaeology, and if the Pollution

Control Board determines that there was error in excluding

that evidence, well, the question is going to be whether the

Petitioners were prejudiced at all. Now, certainly if the

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notes are meaningless and they just ask what were the name of

the witness, it's going to be hard to find prejudice, but the

substance of Kathy Andria sought to get from the witness is

important in determining prejudice. And in substance, these

notes are offered to show the substance of that inquiry, not

to offered to prove the truth of the matters asserted in

those notes. In a post hearing brief, if there's going to be

mention of those notes by me, it's going to be in the fashion

of fundamental fairness.

MR. MORAN: With respect to any notes that Dr. Kelly may

have prepared, clearly if that's what they are, based on the

ruling the hearing officer made during the siting hearing to

exclude such materials, if it were appropriate, the proper

procedure would have been for American Bottom Conservancy or

Sierra Club to make its appropriate offer of proof and lay

out that information during the hearing, not to attempt to

introduce it during the Pollution Control Board hearing on

the appeal. So, the whole notion that we need to find out

what that information was now can only be offered for the

truth of the matters asserted therein because it's evidence

that ABC alleges is relevant to this proceeding. It isn't --

It should have been presented at the siting hearing. There

should have been an offer of proof made. There wasn't. And

it's improper to introduce it at this point.

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HEARING OFFICER WEBB: Well, since the substance of that

testimony is not part of the record, although I think the

allegation is that they wanted to comment and were not able

to. So, I'm going to allow you to ask some questions about

it within reason as an offer of proof to the Board.

MR. MORRISON: At this point, let me pass out -- I

probably should have done this before the hearing, but I've

got these Exhibits. Some may come in, and some may come in

as offers of proof. If I may take a minute to give everybody

a set, including you, Ms. Webb.

HEARING OFFICER WEBB: Okay.

MR. MORAN: Miss Hearing Officer, if I might clarify.

Is it your ruling --

HEARING OFFICER WEBB: He may ask a few questions.

MR. MORAN: We are proceeding as if it's an offer of

proof?

HEARING OFFICER WEBB: This is an offer of proof. Let

me know when this line of questioning is completed so we can

reflect on the record that we're back.

BY MR. MORRISON:

Q. Are you ready, Miss Andria?

A. Yes, I am.

Q. Now, forgive me if I asked this, but was Dr.

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Kelly in any way critical of papers that you gave him that

you received from Waste Management?

A. He was extremely critical of the papers and the

procedures and the way the surveys were reported and taken

and undertaken, that the procedures.

Q. Did you and he discuss rebutting the report

either through applicant witnesses or presenting your own

evidence?

A. Yes, we did.

Q. Did he give you any notes that you could use in

connection with that effort?

A. Yes, he did.

MR. MORRISON: Ms. Webb, I've mistakenly given to you

the original Exhibits. I have a courtesy copy for you.

Thank you. Ms. Webb, if I may approach Ms. Andria and hand

her what's been marked Exhibit 11.

HEARING OFFICER WEBB: You may.

(Mr. Morrison hands document to witness.)

BY MR. MORRISON:

Q. Ms. Andria, I've handed you what's been marked

ABC Exhibit 11. Would you identify that, please?

A. It's says "Milam North Archaeology, History of

Investigation." It's two pages, plus a third page that lists

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various sites, locations and what was found. It's notes that

John Kelly gave to me.

Q. Now, I believe the transcript of the proceedings

before the City of Madison shows your effort to question a

Waste Management witness about archaeological issues?

A. Yes. It seemed logical that the archaeology, the

mounds on the site, the only thing that it seemed to fall

under in terms of the siting criteria is incompatibility, and

we certainly consider it to be incompatible to have a

landfill on top of important Indian remains and mounds that

are eligible for the national historic registry listing. So,

we -- I forgot your question. I'm sorry.

Q. Well, I think you've answered that question. But

another question, were any of your questions that you were

going to ask at that hearing going to be based upon what is

set out in these notes, that ABC Exhibit 11?

A. Yes. I assumed there was going to be the

archaeology report presented at the hearing. I did not see

the list of witnesses that they had. When they announced who

was going to do that, I did not see an archaeologist.

Mr. Schanuel was the person who was listed as the

incompatibility person. So, I attempted to ask questions on

archaeology and cultural resources and the mounds from him.

The report was not submitted at the hearing. It was not --

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An archaeologist wasn't there. We were denied asking

questions, and the report apparently was submitted at the end

of the public comment period.

Q. And when you say "a report was not submitted," at

least at the hearing, what report are you talking about?

A. The archaeology, the papers that were given to me

by Mr. Durako and then the archaeology report -- I do not

know if they're the same -- that was submitted by Waste

Management by Mr. Shinn, I think is his name, from Burns and

McDonnell at the City of Madison after the close -- or at the

close of the public hearing -- I mean, at the close of the

public comment period, not at the public hearing.

Q. So, this archaeology report, what you're

referring to as a report that was not submitted during the

public hearing, is that what you're calling the papers that

you had received from Waste Management and given to Dr.

Kelly?

A. That's what -- I received a file folder of

documents that looked to be a report. I do not know if it is

the archaeology report since it was never identified as such.

Q. Okay. But those papers were not submitted at the

public hearing or beforehand?

A. That's correct.

Q. And the notes that you had from Dr. Kelly

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pertained to those papers?

A. That's correct.

Q. Now, you've just said that there was an

archaeology report submitted by Waste Management during the

public comment period?

A. At the very end is my understanding, of the

public comment period.

Q. Why did you not respond to that report?

A. It was at the end of the public comment period.

I didn't know it was there. I don't think there was time to

respond.

MR. MORRISON: That concludes the offer of proof.

HEARING OFFICER WEBB: Thank you.

BY MR. MORRISON:

Q. Before the public hearing, did you have any

information on wetlands impacts arising out of the proposed

landfill?

A. Yes. The Waste Management had applied sometime

perhaps -- I'm not even sure of the date, but quite sometime

before to the Corps of Engineers for a permit -- a 404 permit

to destroy 18 acres of wetlands and in order to use that as

soil to cover garbage, and there was a phrase -- and I don't

remember the exact wording of the phrase -- that said that it

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might be used as part of other activities at North Milam.

Q. And did you attempt to elicit from any witnesses

-- Waste Management witnesses at the public hearing any

information about incompatibility with the wetlands?

A. I did. I tried to ask questions of the

incompatibility expert and was not allowed to ask questions

on wetlands.

MR. MORRISON: Miss Webb, that concludes the Direct

testimony of Ms. Andria. It's not the Petitioners' case in

its entirety.

HEARING OFFICER WEBB: Thank you. Is anyone adverse to

taking a five-minute break before Cross Examination?

(No response.)

HEARING OFFICER WEBB: We'll take a five-minute break.

(A brief recess off the record.)

HEARING OFFICER WEBB: All right. We will go back on

the record and pick up with Miss Andria's Cross Examination.

MR. MORAN: Thank you.

C R O S S E X A M I N A T I O N

by Mr. Donald J. Moran:

Q. Miss Andria, you've been involved in site

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location proceedings prior to this one; haven't you?

A. Yes, I have.

Q. A number of them; correct?

A. Yes, I have.

Q. How many?

A. I think six.

Q. And, in fact, the first one you were involved in

was one that was, in fact, presented to the City of Madison;

isn't that correct?

A. I don't know.

Q. Were you ever involved in a siting proceeding

before this one that was held before the City of Madison?

A. Yes.

Q. And when was that?

A. When?

Q. Approximately.

A. Maybe ten years ago. I'm not sure of the date.

Q. And you participated in that siting proceeding in

what capacity? Were you representing an organization? Did

you appear on your personal behalf?

A. I represented an organization, and a group of

citizens also bantered together, and I don't remember whether

I was involved individually or just as the organization.

Q. What was the organization's name?

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A. SPILL, S-P-I-L-L.

Q. And that's an acronym for something?

A. Stop Polluting Illinois.

Q. So, you were opposed to that siting application

pending before the City of Madison?

A. That's correct.

Q. Did the City of Madison have a siting ordinance

that applied to that proceeding?

A. I believe so.

Q. And did you review that siting ordinance prior to

your participation in that siting hearing?

A. I know that we handed in documents. So, I must

have reviewed it. I don't remember the details. I remember

some of the details very vividly. I don't remember all the

details of that.

Q. Isn't it true that that siting ordinance provided

that if there were any documents or exhibits any party wished

to use at the siting hearing, those documents had to be filed

five days before the start of the public hearing?

A. I know that there was -- part of the ordinance

said something about pre-filing. I do not remember the

specifics of the ordinance.

Q. And the provisions in the ordinance that applies

to this proceeding, in fact, provided that any documents or

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exhibits that a party wished to use must be filed five days

before the start of the public hearing; isn't that correct?

A. What was the first part of your question?

Q. In this proceeding before the City of Madison, a

city ordinance provided and provides that if any party wished

to use an exhibit or document, that exhibit or document had

to be filed five days before the start of the public hearing?

A. That's correct.

Q. And that's, in fact, the same provision that was

in the ordinance applied to the proceeding you participated

in on behalf of SPILL approximately ten years ago; is that

correct?

A. I don't know if it's the same.

Q. Did you file any exhibits or documents on behalf

of SPILL in the proceeding before the City of Madison

approximately ten years ago?

A. My memory is that we did, yes.

Q. And did you file those documents within the

requisite period of time before the public hearings began on

that proceeding?

A. I'm sorry. I do not remember.

Q. Now, you indicated here that you first became

aware the existence of the City of Madison's siting ordinance

on Monday, December 18th; is that correct?

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A. That's correct.

Q. And I believe you indicated that you first made

any contact with the City of Madison about whether it had a

siting ordinance on December 15th of 2006?

A. No, that's not what I said. I said I called to

find out if there were any rules in place. I didn't ask

about an ordinance. It didn't occur to me to ask about an

ordinance. I said just, "Do I have to register? What rules

are in place?"

Q. So, when you called the City of Madison on

December 15th, what you're telling us is that you had no

thought or indication about whether or not the City of

Madison had a siting ordinance that might apply to this

siting application; would that be correct?

A. I did not know that there was a siting ordinance.

I had heard that there might be something in place, that I

needed to do something, but I did not know that there was a

siting ordinance, and I did not know to ask.

Q. Did your knowledge of the fact that the City of

Madison had a siting ordinance in 1995 at all enter into your

mind?

A. I'm afraid, no, it did not. It was ten years

ago, and I just did not remember that.

Q. So, when you called the City of Madison on

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December 15th, you didn't ask whether the City had a siting

ordinance that applied to this proceeding?

A. I did not use those words, no.

Q. You simply asked whether there were any rules

that applied to the siting hearing?

A. I asked, "Do I have to register for the public

hearing? Are there any rules in place?", and he said, "No.

Just show up," and then I asked how the hearing was going to

be conducted and how they were going to take witnesses, and

that's when he told me to call Mr. Papa.

Q. So, the information you received on December 15th

was that you should just show up to the hearing; correct?

A. That's correct.

Q. And there was no discussion about whether there

was any siting ordinance; correct?

A. That's correct.

Q. And you were told to call Mr. Papa?

A. That's correct.

Q. Did you call Mr. Papa?

A. I called Mr. Papa's office at the number that the

gentleman had gave me, and a woman answered. I identified

myself and why I was calling and asked to speak to Mr. Papa,

and I was told that they were all at a party -- a Christmas

party all day long, and they wouldn't be back.

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Q. Did you ask for any other information about

Mr. Papa by which you may be able to contact him, in other

words, a cell phone number or some other means to contact

him?

A. I did not.

Q. So, you didn't talk to anybody over that weekend,

that is the 16th and 17th of December, regarding the

questions you had asked the City of Madison on the 15th;

correct?

A. I didn't talk to anybody at the City, is that

what you're asking me?

Q. Yes.

A. I did not talk to anybody from the City.

Q. And you didn't talk to Mr. Papa over that

weekend; correct?

A. No, I did not.

Q. So, as of Monday then, you still hadn't heard

from Mr. Papa; correct?

A. I believe that's correct.

Q. And your understanding was you should just show

up at the hearing; correct?

A. Well, let's put it this way: That was what I was

told on Friday, but when I called and could not get any

information and a law office was going to be closed all day,

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because I called in the morning, that's when I went straight

to City Hall to find out what was there and what was in

place.

Q. Now, wait a minute. Who was closed all day?

A. I was told Mr. Papa's office on Friday that

they're all gone for the whole day at a Christmas party.

Q. I'm trying to understand what you were thinking

over this weekend when you hadn't heard from Mr. Papa and you

were told simply to show up at the hearing. So, at that

point, you still had no knowledge about whether there was a

siting ordinance; correct?

A. What I was thinking is that there was funny

business.

Q. You thought there was a funny business?

A. I said it did not seem logical to me that a law

office would close all day on a Friday for a Christmas party,

and I did not think that -- I thought something was funny. I

identified myself. I gave my name. I said, "Why are you

calling on Friday?" You asked me what I was thinking. I was

thinking that something was not right about this.

Q. Did you have or at any point learn facts or

information to support your thought that there was some funny

business going on?

A. Do I know that they were there? I mean, I don't

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understand --

Q. No. I'm just trying to focus on your use of the

term "funny business". I'm not sure what you actually mean

by that. But I'm asking, were there any facts or information

you learned afterwards that supported your thought that there

was some funny business going on?

A. I'm finding it difficult to understand the

question you're asking. What you asked me was what my

thinking was. My thinking has been that there had been

fundamental unfairness found on the part of the City before.

There had been fundamental unfairness found on the part of

Waste Management. I did not think that I was going to have

to deal with either of these for this situation until after I

tried to get what rules were in place and what was going to

be happening on that Friday. That's when I started to think,

"Something's not right here."

Q. So, when you referred to "funny business," what

you were thinking is fundamental unfairness; would that be

accurate?

A. That's correct.

Q. So, as of the weekend of December 16th and 17th,

you're thinking there may be some fundamental unfairness

going on with respect to the siting application?

A. I was thinking that there was the possibility

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that I was not being given all of the information that I was

asking for.

Q. So, would it be accurate to say that you believed

that Mr. Papa was deliberately not calling you back over that

weekend; did that thought occur to you?

A. I guess I did not think about -- Since the office

was closed on Friday, I did not think about a weekend being

business, that the City or that Mr. Papa would be operating

as if it were a weekday, especially with it was the last

weekend before Christmas.

Q. So, you didn't view it as unusual in any way that

Mr. Papa did not return your call over the weekend; is that

accurate?

A. I did not say that, and I would not say that.

Q. Okay. Well, what was your point about saying

this is the weekend before Christmas, and you didn't

necessarily expect that there would be some response over the

weekend?

A. I'm saying I did not make a determination that it

was unusual that he did not call me back. I'm saying I did

not think that it was usual. I'm just saying -- You're

asking me did I make a decision; did I have this thought in

my mind; was I waiting by the phone for him to call? No, I

was not, although the number I gave was my cell number. I'm

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trying to answer your questions.

Q. And you didn't try to reach Mr. Papa with his

cell number; would that be correct -- over that weekend?

A. I do not have Mr. Papa's cell number, and I did

not.

Q. And you didn't ask for his cell number when you

called his office on Friday?

A. I did not.

Q. So, Monday morning, you don't know any more than

you knew on Friday; correct?

A. I believe that's correct.

Q. Did you receive any phone calls from anyone on

Monday, December 18th?

A. I do not remember.

Q. Did you take any actions on Monday, December

18th?

A. Yes.

Q. What did you do?

A. I believe I went with Mr. Norman to the -- Jack

Norman to the City of Madison City Hall.

Q. Why did you go to the City of Madison on Monday

morning with Mr. Norman if you hadn't heard back from

Mr. Papa or anyone else?

A. Because the City is where the repository of

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information is, the City Clerk's office.

Q. But you didn't go to the City of Madison on

Friday; did you?

A. No, I did not.

Q. But you went on Monday; correct?

A. That's correct.

Q. And you went for what purpose?

A. I went to see what was -- what was in place, if

there were rules, what was going on with the hearing, and I

got a copy of the ordinance I believe.

Q. And who gave you a copy of the ordinance?

A. I do not know.

Q. Was it a man a woman?

A. It was a woman I believe.

Q. Did you ask for the ordinance, or was it simply

offered to you?

A. I asked -- I don't remember the words that I

used. I asked about what -- how it was going to be

conducted, if there were anything there that I could see. I

don't remember the words that I used.

Q. And were you asked to pay for a copy of the

ordinance?

A. Yes.

Q. What was the charge for the ordinance?

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A. It was to be -- As I said, I don't remember. I

think it was $5 for up to three pages or up to five pages.

I'm not sure. If you got one page, it was still $5, and for

every page after that, it was a dollar.

Q. How long was the ordinance in pages?

A. It was 11 pages.

Q. Did you receive any documents in addition to the

siting ordinance when you went to the City on December 18th?

A. I'm not sure if I did.

Q. Well, isn't it true that you also received a

document that set out and identified the witnesses that Waste

Management of Illinois was going to present at the siting

hearing?

A. That's possible.

Q. Because one of the things the ordinance required

was that in conjunction with the filing of other documents or

exhibits, that the applicant and the other parties submit a

list of its witnesses that it intended to call at the hearing

also five days before the hearing; is that correct?

A. That's correct.

Q. So, you received those two documents, the siting

ordinance and a list of witnesses that were going to be

called by Waste Management of Illinois; correct?

A. I believe so.

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Q. And you were charged for both of those documents?

A. I don't remember the specific charge.

Q. But you were charged for them?

A. I believe so.

Q. You did pay some amount of money --

A. I did.

Q. -- for these documents?

A. I did.

Q. You believe it was at least $5?

A. I do not remember the amount. I'm sorry.

Q. So, it could have been less than $5?

A. I do not remember the amount.

Q. As you sit here now, you have no idea what the

amount was?

A. That's correct.

Q. Do you have any information about whether you

were charged the customary amount for those documents or

whether you were given those documents at some reduced

amount?

A. I was -- There was a phone conversation. The

clerk or -- I don't know that it was the clerk or the deputy

clerk called someone and talked to someone on the telephone,

and they had a rather -- they talked for several minutes, and

they charged me then less than the full amount would have

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been, and I do not remember the difference, and I looked and

didn't find a receipt. So, I could not tell you the amount

that I was charged, but I do also know that I was not given

-- after the close of the public comment period, I was not

given a reduced rate. I had to pay a dollar a page for

everything that I got -- the minutes and everything.

Q. This would have been after the decision was

rendered by the City of Madison?

A. This would have been after the vote was taken.

Q. And the vote was taken on February 6th of 2007?

A. I don't have that date.

Q. I understand that you don't recall what the

amount was you paid for the ordinance and the list of

witnesses, but it's your contention that whatever that amount

was, it was excessive; is that correct?

A. My contention is that it was excessive for the

City to charge what they were wanting to charge, and that

apparently -- I asked questions about the charging policy by

the City, and I firmly believe that it's against the law what

they're charging citizens to get copies of City documents.

Q. Is it your contention that what you were charged

here for these documents was against the law?

A. I was given the special rate. I do not remember

what it was, but it was -- I would assume specifically the

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clerk was told to charge me less because of the previous

appeal that we had -- and a decision on fundamental fairness

that I got a special rate up-front because it was me. I

think the next person could have gone, and they would have

not got a special rate. I think that's fundamentally unfair

to citizens.

Q. Do you have any facts or information to support

your belief that the reason you were given a lesser charge

for these documents was because of the appeal of the SPILL

matter back in 1995?

A. Do I have proof of that?

Q. Or any facts or information. Did somebody say

that? Did you hear anything that suggested that was the

reason?

A. Well, they had an interesting discussion over on

the side, the woman employee of the City whoever was on the

other end of the phone.

Q. But you didn't hear any of that discussion; did

you?

A. No, I did not.

Q. So, other than that, you don't have any basis to

conclude the reason that you were given whatever charge you

were given was because of the involvement in the SPILL

proceeding back in 1995?

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A. I think that it's a logical deduction from the

way Waste Management handled this proceeding and the way the

City handles it that that could be the case, and I found that

at another siting hearing that I was at that I attempted to

get information, it was cited -- or asked, "Are you the lady

that sued over this?", or something, and then they just gave

me something. So, yeah, I think you get special treatment if

someone doesn't want a lawsuit to be there, but I still think

that what they did and how they did it was fundamentally

unfair. It's not only unfair to us; it's unfair to anyone

who wanted -- If Jane Smith went in there and wanted to get a

document to participate in the hearing, I really firmly

believe they would not give them her a special price.

Q. But in this case, you contend that you received

special treatment with respect to the amount you were

charged?

A. With respect to the ordinance, yes, not with

respect to the public comments that were submitted or the

decision, as you call it, the vote, I call it the minutes of

that meeting, with regard to the end of the public comment

period, yes.

Q. And you're contending that the amount you were

charged was fundamentally unfair; correct?

A. I am considering -- Yes, the amount I was charged

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was fundamentally unfair.

Q. And are you contending the amount you were

charged for the ordinance and the list of witnesses was

excessive?

A. No, I am not saying that the amount I was charged

was excessive. I don't remember what it was. I do know it

was a reduction from what it was first said to be.

Q. In your Petition for Review that you filed in

this proceeding, you allege that the City's sum that was

being charged for the ordinance that you received was

excessive. Are you now saying that this allegation ought to

be changed and deleted because you're now not claiming the

amount you were charged was excessive?

MR. MORRISON: If I may object. That may

mischaracterize the Petition. For clarity, what paragraph,

counsel, please?

MR. MORAN: I'm sorry. It is paragraph 16, Petition For

Review, and the specific sentence I'm referring to is the

last sentence. I'll just read that. It says, "Further, in

light of the excessive sum the City sought to charge for a

copy of Ordinance 1670, the City should have borne the burden

of including Ordinance 1670 within the record."

A. I think that statement is correct. Sought to

charge is what they sought to charge. They sought to charge

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me a dollar a page after the initial amount.

BY MR. MORAN:

Q. So, you're still contending that the amount the

City initially quoted you for the ordinance and the list of

witnesses was excessive?

A. I do.

Q. But are you saying that the amount you were

actually charged for the ordinance and the list of witnesses

was not excessive?

A. I am saying that I don't remember the amount.

So, I couldn't say whether I think it was excessive or not.

Q. So, it's fair to say, as you sit here now, you

are unable to say whether the amount you were actually

charged was excessive; would that be fair?

A. That's fair.

Q. Are you contending that the amount you were

actually charged for the ordinance and the list of witnesses

was against the law?

A. The amount that I paid, is that what you're

asking.

Q. Yes.

A. I don't know. I doubt it.

Q. Are you contending the amount that was quoted to

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you for the ordinance and the list of witnesses was against

the law?

A. I believe it's against the freedom of information

law and the access to public records, yes.

Q. And your claim here is that the amount you were

actually charged for the ordinance and list of witnesses was

in any case fundamentally unfair; correct?

A. I'm sorry. Would you --

Q. And what you're saying here is the amount you

were actually charged for the ordinance and the list of

witnesses was fundamentally unfair?

A. You just asked me that question.

Q. I just want to make sure that I understand that

that's your contention here.

A. I said I don't know the amount that I was

actually charged. I was relieved to get it less than $11 or

however much more because if I got the list of witnesses,

that was -- I don't know how many pages that was. So, I

don't know what the total was. I needed that ordinance. I

had no place else to get it. It was not at the library. So,

I was relieved that I could get it for a discount, shall we

say.

Q. Are you saying now that you are unable to state

whether the amount you were actually charged for the

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ordinance and the list of witnesses was fundamentally unfair?

A. Mr. Moran, I will say it again. I do not

remember the amount I was given. I cannot make a judgment as

to whether I think it was against the law.

Q. That wasn't my question. I'm focusing now on the

fundamental fairness. Forget about the question about

whether it's against the law.

A. Okay.

Q. Now I'm only asking about the fundamental

fairness.

A. Okay.

Q. Are you saying that because you don't know as you

sit here what you were charged, you don't know whether that

amount was fundamentally unfair, and you're not contesting

that it was fundamentally unfair because you can't -- you

don't know what the amount charged was?

A. I don't know the amount that I paid was for that.

Q. I'm saying don't you know whether the amount that

you were charged was fundamentally unfair?

A. Right. I do know what I did pay at the end of

the -- after the vote was taken.

Q. So, would it be accurate to say then that you are

not contending as you sit here now the amount you were

charged for the ordinance and the list of witnesses was

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fundamentally unfair? You're not saying that now; correct?

A. I am not saying that it was fundamentally unfair.

I am not saying it was fundamentally fair. Since I don't

know the amount, I can't say that.

Q. Now, you indicated that you received a copy of

the ordinance on Monday, December 18th; correct?

A. Yes.

Q. And you said you skimmed over the ordinance on

the 18th; would that be accurate?

A. While I was still at the office.

Q. Was there ever a time when you actually read

through the ordinance start to finish?

A. I would assume so.

Q. But as you sit here, you don't know whether you

did that before the hearing started?

A. Every word, I don't know when I did. I don't

know whether I read it in part. I don't know whether I sat

down and read it from start to finish. I really don't know

the answer to the question.

Q. At some point, did you learn that the ordinance

contained within it the same provision as in the previous

ordinance from 1995 that said any exhibits or documents

intended to be used at the hearing had to be filed five days

before the start of the public hearing?

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A. Yes, I learned that on Monday.

Q. On Monday you learned that?

A. Yes.

Q. December 18th?

A. Yes.

Q. And, so, you determined based on your reading of

that ordinance on the 18th that any documents you wanted to

use at the hearing had to have been filed five days before

December 21st?

A. On Monday, you said December 18th?

Q. That was Monday, December 18th.

A. Yeah. I'm sorry. I have my dates mixed up.

Yes, I learned that I should have filed the previous Friday

of the public hearing.

Q. Yes. By Friday, December 15th; correct?

A. Yes.

Q. Now, did you ask anyone to read the ordinance and

indicate to you whether your reading of the ordinance was

correct in that regard?

A. I don't believe so.

Q. So, you didn't consult with a lawyer about what

the contents of that ordinance said or meant; correct?

A. I think I discussed it with Mr. Norman, and I

discussed it with Dr. Kelly, and I'm sure I discussed it with

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other people, but I did not consult an attorney, I do not

believe.

Q. So, you did not at any time seek any legal advice

as to what the intent or meaning of that ordinance language

was; correct?

A. I believe that's correct.

Q. You talked to Mr. Norman?

A. I did.

Q. And who is Mr. Norman, by the way?

A. Mr. Norman is both a Sierra Club and an ABC

member.

Q. And Dr. Kelly you've already identified?

A. Yes.

Q. Who were the other people that you talked to

about this provision of the ordinance?

A. Other people perhaps that were involved and who

were going to be going to the hearing, Sierra Club members.

I don't remember specifically.

Q. But they all concurred in your view that in order

to submit any documents, they would have had to be filed no

later than Friday, December 15th?

A. I don't remember that we took a vote. I mean, it

said what it said, and that's how we -- It's pretty clear

what it said.

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Q. And did reading that in any way refresh your

recollection that the City of Madison ordinance that you had

dealt with back in 1995 had exactly the same provision?

A. Oh, yes.

Q. So, then you remembered that indeed, "Here's that

same provision that we dealt with back in 1995"?

A. Yes.

Q. Now, as of December 18th of 2006, was it your

intention to have any documents or exhibits prepared that

would be presented at the siting hearing?

A. As of which date?

Q. December 18th, Monday.

A. Would you repeat the question? I'm sorry.

Q. Yes. As of Monday, December 18th, was it your

intention or plan to have any documents or exhibits prepared

so they could be submitted at the siting hearing?

A. Yes. I had done -- I had started doing a google

search and going to some sites that I know about landfill

impacts and various studies that I've seen and been aware of

from previous work on impacts where landfills on groundwater

on how --

MEMBER OF THE PUBLIC: Speak up, please.

A. I'm sorry. I had started to compile studies from

the Internet on different impacts that I knew of with health

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related things to communities living around landfills, to

impacts to groundwater, to various things. I had begun doing

those to bring to the hearing that I would have introduced

and asked questions from.

BY MR. MORAN:

Q. When did you start that google search? That day,

Monday, December 18th?

A. No. I had gotten some other documents from when

the first 404 permit for the Corps of Engineers, I believe I

handed in some documentation on that. And, so, I was -- Some

of the research had already been done. Some of it was -- I

was getting copies of things that I knew or that I had turned

in, and then there was the archaeology.

Q. So, some of these reports that you intended or

planned to present at the siting hearing you had obtained

during the 404 permitting process?

A. Some of them, yes.

Q. And you said you submitted those documents. To

whom did you submit them?

A. To the Corps of Engineers.

Q. And when was that?

A. Whatever the deadline was for public comments,

and then there was -- I don't remember the dates. I'm sorry.

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And I think that -- It's my understanding that they held it

open for new information. And, so, I did submit additional

studies and reports.

Q. Was your submission of those initial reports done

sometime prior to December 15th of 2006?

A. Yes.

Q. How long before? Approximately a few months?

A. I'm sorry. I don't have a timeline in my head.

Q. Do you recall when you first became involved in

any part of 404 permit process?

A. I don't remember the date.

Q. Was it in 2005?

A. I believe so.

Q. So, it would have been well over a year before

this siting application was even filed; correct?

A. I believe so.

Q. Now, those documents that you submitted in the

404 permitting process, you intended or planned to submit

here, did you, in fact, offer any of those documents at the

siting hearing?

A. I believe I offered one. I'm not sure if I tried

to offer more than one, but I know that there was one that I

wanted to question Scott Schanuel on, which was impact of

landfills on the community. I thought that was a

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compatibility issue.

Q. And when you offered that document, was it

admitted into evidence?

A. No, it was not.

Q. Which document was it?

A. I don't remember the name of it.

Q. Is it your recollection that at some point during

the hearings, all of the documents you offered were admitted

as part of this record?

A. I don't believe so.

Q. What documents weren't admitted?

A. I don't believe that the landfill document from

Rachel's was admitted, and I'm not sure if there were others.

Q. Do you know the circumstances under which you

offered that document relating to landfills from Rachel's?

A. I think I just said it was during the -- when I

was questioning Mr. Schanuel, I was asking him about impact

and compatibility on surrounding communities.

Q. And then later you were given the opportunity to

again offer that exhibit into evidence; weren't you?

A. It was at the end of the hearing, and there was a

magnanimous gesture, "Put it in since it's not going to

matter anymore," because there were no more witnesses to

question. So, it really had no -0 I mean, it lost its

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impact. I couldn't question from it. I couldn't do

anything. I couldn't give a document that --

Q. Well, was it your understanding that you were

unable to ask questions of a witness based on a document that

you hadn't offered and admitted into evidence?

A. Well, I tried to ask questions, and my memory is

that the hearing officer said -- you objected, and he

sustained your objection. There were a lot of instances of

that. Some I attribute to the fact that I'm not an attorney

and maybe don't know how to lay a foundation to ask those

questions, and some I attribute to that there was -- I was

just not going to be able to ask questions about things that

the proponents didn't want asked.

Q. But ultimately isn't it true that that exhibit

you sought to have offered and you did offer was admitted as

part of the proceeding?

A. I don't know what its condition, what its status

was. There was some sort of something at the end where you

asked me, I believe, who the author was, and I cited -- I

read some of his credentials, and I said he was a respected

person, and I said that we can't bring these people -- we

can't -- citizens can't pay people to come to testify who

have done, I think, professional research. So, I think you

objected, and you wanted -- you said that, I believe -- and

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this is just from not very solid memory, but I think you said

that weren't the hazardous waste sites, and I said that I

thought landfills all take in hazardous waste because that's

the toxic chemicals that we get, and we had a discussion

about that. So -- But I don't think it was admitted as

evidence, no.

Q. You were asked to provide additional information

with respect to that report so that a determination could be

made as to the relevance of the information contained; isn't

that correct?

A. You asked me to provide something, yes.

Q. And did you ever provide that information?

A. I don't believe I did.

Q. Okay. Now, during the course of this hearing,

you -- and also the post hearing period, you submitted more

public comments; correct?

A. That's correct.

Q. And one of those public comments had to do with

the archaeological issues you wished to raise; is that

correct?

A. Some of the -- Are you talking about the one on

the coroner's report?

Q. If that's what you characterize as an

archaeological study, yes.

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A. Well, it was proof that there were burial remains

at the site, and it also indicated that the way that it was

being handled was not, I think, the way it should have been

handled according to the law, and I do know that I did not

see that coroner's report in what you submitted as the

archaeology report, but at least it was not in the documents

that were given to me before the hearing.

Q. What you just indicated to us were the contents

of the written comment -- a public comment that you submitted

during the post hearing public comment period; correct?

A. What I just said was what I had in my public

comment period, is that what your question?

Q. Yes. What you just described for us.

A. I believe so.

Q. Now, you're not contending here that you were

unable or prohibited from presenting any information

regarding archaeological issues; are you?

A. No, I'm not saying I was prohibited from

commenting on archaeological issues. I'm saying that a

report on the archaeology of the site was handed in at the

very end when we had no opportunity to question the person

who submitted the report, who compiled the report and to ask

the questions that we knew that were -- that had some

problems with procedure and results.

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Q. And, in fact, did you have any intention or plan

to present an archeological report or study during the course

of the hearing?

A. We were trying to get a report. I submitted what

Mr. Durako gave me. I gave that to Dr. Kelly. It was a file

that was large. Dr. Kelly tried to go through it, and he

made notes about different things. We were going to try to

get a report together that we could use and then also prepare

questions to ask the archaeology person about the report.

Q. When did you first contact Dr. Kelly about

reviewing any of the information in this siting application?

A. Well, Dr. Kelly and I were working together on

the 404, and, so, he knew about the 404, but as soon as I got

a copy of the archaeology files from Mr. Durako, I called Dr.

Kelly.

Q. When did you get that copy of the archaeological

document from Mr. Durako?

A. It was in the weeks before the hearing. I don't

remember the date. I'm sorry.

Q. Would it be fair to say it was in the early part

of December of 2006, a few weeks before the hearing?

A. It's fair to say that.

Q. And that's when you first had a discussion with

Dr. Kelly about the possibility of putting a book together to

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submit at the hearing?

A. Well, we didn't know -- We were looking for what

was found at the site and trying to get information from the

Illinois Historic Preservation Agency, talking to people at

the mounds, talking to other archaeologists who may know

things. I do not know who all Dr. Kelly talked to. We were

trying to find out what other people knew, but we did not

have the official archaeology -- the archaeologist's report

or -- Burns and McDonnell is an engineering firm, not an

archaeology firm. We didn't have their report.

Q. So, it would be accurate to say that Dr. Kelly

was aware of these different archaeological matters and

issues at least by the early part of December of 2006 when

you had the first discussion with him about the possibility

of submitting a report and siting information; correct?

A. Yes.

Q. And you at some point determined that you would

not present any report on archaeological issues at the

hearing because you had missed the deadline for submitting

such documents; correct?

A. That's correct. We were -- We had gotten the

documents, the archaeology file late, and he was going

through it. I'm not -- I don't have the technical background

to go through and to read it. So, he had to go through it,

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and he has classes and other things. So, he did as much as

he could. When I found out that there was not -- it was too

late to submit a report, I said, "We can't submit a report."

So, he gave me the questions that I was going to ask the

archaeologist about the different parts about what was wrong

with the waste or things that were done and try to figure out

where the mounds were because there are several that are

eligible for registry, national historic registry, to ask

questions about remains because archaeologists hear about

what's happening, but not everything is shared. There's not

like some place you can go out to find out what someone found

very easily.

Q. Did you talk with Dr. Kelly at all about the

public comment that you subsequently filed regarding

archaeological issues?

A. I gave Dr. Kelly a copy of the coroner's report

when I got it, and I think he had heard that they had found a

body or that they had found bones, remains or something, and

I don't believe that he knew what the details were, and I got

that from going to the coroner's office. I did not know how

else to get it.

Q. You prepared the public comment that addressed

the archaeological issues that you submitted; is that

correct?

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A. That's correct.

Q. Did Dr. Kelly have any input or provide any

information that you used in preparing that written comment?

A. I don't remember the comment. I haven't looked

at it lately. So, I couldn't answer that question just now.

Q. Did you make any determination that you would

file the comments that Dr. Kelly had given you to use in

cross-examining witnesses?

A. Would you repeat that? I'm sorry.

Q. Yes. Did you make any determination whether to

file the document, your notes that Dr. Kelly gave you for

your use in cross-examining witnesses? He gave you these

files as a public comment?

A. Well, I have no -- It's not my document. I have

no way of saying what it is, of proving what it is when I

hand it in. So, I --

Q. So, would it be fair to say you made the

determination not to file the document that Dr. Kelly had

given you?

A. I don't remember there was a determination made.

I'm not sure what my thinking was about it. I knew that it

was a big file, and that it had lots of sticky papers with

his notes on, and it was a challenge. So, I don't know -- I

didn't have the ability to write a report and assess what it

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was.

Q. Did you ask Dr. Kelly to prepare a written

comment or submission that could be filed as part of the

siting process?

A. I think Dr. Kelly wrote a letter of comment from

the Powell Archaeological Research Center. I don't think he

compiled a report.

Q. Did you ask him to prepare that letter?

A. I don't think so.

Q. Did you talk to him about his preparation of such

a letter?

A. We discussed -- We discussed it there. We

discussed it at meetings that we have. I mean, there were

many -- There was a lot of concern about the archaeology on

the site, about the Indian remains.

Q. Did you review his letter before he filed it?

A. No, I did not.

Q. So, you never saw it until after it was filed?

A. I did not see it until I picked up the comment

from Madison City's office when I got the -- when I saw that

the archaeology report was there. So, I think that that's

the first time I saw that letter and the archaeology letter,

and I'm not sure when I saw that the Mayor had responded to

them.

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Q. So, you somewhat became aware that Dr. Kelly was

submitting his own letter; correct?

A. I think I knew he might be doing that. I don't

remember -- I don't remember because he was out of town for a

lot of that period. I think he was doing some archaeology

somewhere. So, I don't really have a lot of memory of the

details of that period, what was done when or --

Q. Did you ask Dr. Kelly to attend the siting

hearing?

A. I think that I had hoped that he would, but I

think that he was unable to. I think he was out of town. I

think my memory is that -- it may not be correct, but I think

that was -- he was visiting family at Christmas.

Q. Did you consult with any person with respect to

the wetland issues you wished to raise with regard to the

site?

A. Did I consult with anyone?

Q. Yes.

A. I talked with Mr. Brensman (phonetic). I talked

to a lot of people who are concerned about wetlands. I

talked to people who are concerned about -- I talked to

people with 404 knowledge.

Q. Did you talk with any individual about preparing

a letter or any written document addressing the wetland

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issues you thought were important at the site?

A. You mean an expert?

Q. An expert or anyone who's knowledgeable about

wetlands who can prepare a document that would set out those

issues as you saw they were important at the siting hearing?

A. I talked to someone, and I don't remember his

name, but I believe he submitted a comment, although I think

it was late. He was an academic from somewhere, but it

was -- We had a discussion, and he submitted something, but

it was difficult for me to understand what he was saying.

Q. Did you ask that person to attend the siting

hearing?

A. No. I did not know about that person.

Q. But your understanding is that this person did

submit a written comment during or maybe after the post

hearing comment period?

A. It's my understanding. He had offered to come,

but it was too late.

Q. That's because you didn't learn about the hearing

until the -- or the ordinance until the 18th?

A. No. I didn't know about the man.

Q. Of the four written comments that you submitted,

did any of them address wetland issues?

A. Well, the soil survey is all about wetlands and

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floodplain and soil chemistry composition.

Q. So, in fact, one of your written submission did

address the wetland issues that you thought were important

regarding the siting area; correct?

A. It addressed the soil issues. It did not -- I'm

not remembering whether I read it recently. I don't know

that it talked about flood storage ability of wetlands or

what mitigation was on the site because I know that there's

been mitigation on the site, and that's a question I would

have asked the wetlands expert. When you put -- Where is the

landfill going to go? Is it going to interfere with any

mitigation that's there now from other impacts to wetlands?

How is it going to -- Just the fact that you're taking

wetlands. Those are all questions I would have asked of the

wetland expert.

Q. Are you aware that with respect to the

archaeological issues you sought to raise at the siting

hearing, that it was the position of the applicant that any

such issues were not properly considered as part of the

siting ruling process?

A. That's what you said.

Q. Are you aware of what the regulatory scheme is to

address archaeological issues in the State of Illinois?

A. Scheme?

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Q. Well, regulatory set up, for instance, agencies

who review these issues. Do you have any understanding or

knowledge as to any of that?

A. Well, there are various components, and I'm

certainly not an expert on that. Because it's also a wetland

site, archaeology falls under the federal rule, and that's

triggered -- triggers -- I forget the law that it triggers

about confrontation with tribes. Without the 404 permit, if

there's not federal permitting, the State -- the Illinois

Historic Preservation Agency, and I'm not sure -- I think

there's a lot of latitude sometimes given. So, I'm not

really sure of all the law.

Q. But you are familiar with the Illinois Historic

Preservation Agency and their role in considering these

issues?

A. I certainly am.

Q. And with respect to the wetlands issues, you've

already referred to the 404 permit process?

A. Correct.

Q. Is that indeed the regulatory format in which

wetland issues are addressed at this type of proposed

landfill site?

A. Well, I believe Phillip -- I'm not sure if it's

been gutted or not, but I think the US EPA also has

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jurisdiction over the floor on wetland issues.

Q. And was it your understanding that the position

of the applicant is that those kind of wetland issues are

more properly addressed by the agency and the Corps of

Engineers and part of the 404 permitting process; that's the

reason why we did not believe those issues were properly

considered at the siting hearing?

A. That's my understanding of your reading. Our

understanding is that those things go to the very heart of

the compatibility.

Q. You mentioned also that you became aware that

there was a written comment filed by the applicant that

related to archaeological investigations done at the site; is

that correct?

A. That's correct.

Q. I believe you said that your understanding is

that that written comment was filed on the last day of the

public comment period?

A. Close to the last day or the last day. I'm not

sure.

Q. Did you read that written comment?

A. Did I read it?

Q. Yes.

A. I don't think I read the whole entire.

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Q. Were you aware that the comment was submitted

with the expressed statement that it was not a necessary or

relevant consideration for the local siting hearing body to

consider, but was submitted only because the issue had been

raised by ABC and the Sierra Club, and it felt it was

appropriate to at least describe the investigative work and

fieldwork that had been done to that date with respect to

those issues; were you aware of that?

A. I'm aware that that's your contention that it's

not relevant. It's not the feeling of the Native Americans

who are members of ABC. It's not the feeling of ABC, and we

think it's a very relevant issue.

Q. Did you read the written comment that was

submitted by the applicant as it related to the 404

permitting issues?

A. Mr. Harding's comments.

Q. Yes.

A. I think I skimmed it. I don't know that I read

everything.

Q. Did you note in your review of that submission

that the statement was clearly set out that it was not the

appropriate conclusion that the letter was in any way

necessary or even relevant to the issues in the siting

hearing; it was simply to describe information purposes to

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identify the steps that had been taken to date as part of the

404 permitting process?

A. I read that he said that, and I do not agree. I

think that is your contention, and that's part of what we are

saying is not right, because it's like when you just put it

at the end and say you're doing it because we brought it up,

you're circumventing it. You're circumventing us from being

able to question those people. And the Mayor says in the

letter to the two archaeological groups that he made a

decision that those -- that report was enough for him, and he

didn't want to hear what the archaeology groups, the

professional archaeologists, who had been working on this for

many, many years, he didn't want to hear that. So, I think

that's fundamentally unfair, sir.

Q. So, would it be accurate to say that your

contention is that you were negatively affected in your

ability to cross examine Scott Schanuel because there was no

report filed on archaeological issues by the applicant?

A. I'm sorry?

Q. Is it your contention that your ability to cross

examine Scott Schanuel was negatively affected by the fact

that the applicant did not file a written report describing

its archaeological investigations at the site?

A. It's our contention that we were unable to

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question Mr. Schanuel because you said that he's not the

archaeology person, and we tried to ask archaeology

questions, yet you had no archaeology person, and you

submitted an archaeology report at the very end that we could

not refute, rebut or question.

Q. Is that the extent of your contention with

respect to your ability to cross examine Mr. Schanuel, what

you just stated?

A. Is it the extent? I don't think so. I mean, I

tried repeatedly to ask him on specific issues. He's a

planner, a land use planner, and that's what he was, I

believe -- I can't think of the word I want, but that's what

you certified him as, that that was his field of expertise,

and I think my understanding of land planners from my work in

various growth issues and land use planning is that they have

to take account of what is at a site, what is adjacent to a

site, what the potential -- or what's going to happen to

around the site while this landfill is in use, and he

admitted that that didn't happen, not while the landfill is

open for 19 years, and he admitted that he did not do other

kinds of things that were -- that should have been required

for how the landfill would impact the area around and the

land use as it is.

Q. In addition to Mr. Schanuel, are you contending

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your ability to cross examine any other witness was

negatively affected?

A. I think it was a challenge to try and question

Mr. Connor, who -- I'm sorry -- but I think that the

information presented on floodplain and the site being in the

floodplain and a map that you all contended -- a floodplain

map that you all contended in the last siting hearing for

Milam you said was an inaccurate map, and then you go and use

this map at this hearing as it is the truth, and I think that

you made it very difficult for us to ask questions, and just

declaring that it's not in the floodplain without showing

proof that it's not in the floodplain, I think that made it

difficult for us.

Q. Would it be accurate to say that you are claiming

that your ability to cross examine Mr. Connor was impaired

because of your belief that we did not submit sufficient

information to establish that the facility was not within a

hundred year floodplain?

A. That's correct.

Q. Was there anything else about your ability to

cross examine Mr. Connor that was impaired or restricted?

A. I do not -- Nothing comes to mind right now, but

I can't exclude that there wasn't.

Q. Were you negatively affected in your ability to

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cross examine any other witness who was presented in the

siting hearing?

A. Negatively impacted by how?

Q. I'm asking if that's your contention. I don't

presume to know how someone was restricted in their ability

to cross examine someone. I'm asking you. Were there other

witnesses that you are contending you could not effectively

cross examine?

A. Oh, I was unable to effectively cross examine

people because the lack of technical background, but that's

not something I can do anything about or you can.

Q. We would all agree to that. Are there any other

witnesses that you're contending your right or ability to

cross examine was negatively affected, other than Mr. Connor

and Mr. Schanuel, as you've already indicated?

A. You mean the witnesses who testified, not

Mr. Harding?

Q. Right. We're not talking about your ability to

cross examine witnesses who never testified, that would be

correct.

A. Mr. Dennison.

Q. And in what way were you negatively affected in

your ability to cross examine Mr. Dennison?

A. Well, from my understanding from both Dr. Kelly

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and from the application and from an archaeologist I've

talked to since then, there's a huge safety issue, in that

the landfill as it's supposed to be constructed lies along

side -- I was wondering why it was a strange shape, but it

lies along a pipeline. When I asked who I could question

about the pipeline, you brought Mr. Dennison out, and he

seemed -- he said he did not consider it, he did not know who

owned it, he did not know the nature of it, and I find it

hard to believe that -- he seems a very capable engineer --

that he would not know those things or that Waste Management,

who is a big, important company, would not have addressed

those issues.

Q. So, is it accurate to say that your contention is

that your ability to cross examine Mr. Dennison was

negatively affected because he did not have, in your view,

the level of knowledge that you would have liked to have been

able to inquire about?

A. No, I didn't say he didn't have the level of

knowledge. I said he did not provide information.

Q. Is it your understanding that any part of this

facility boundary is within or includes that pipeline?

A. What you've told me or what -- whoever was there,

I think Mr. Dennison said it's 200 feet away.

Q. So, the pipeline that you wanted to ask about was

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200 feet away from the facility boundary; correct?

A. The archaeologists that have looked at the maps

and know much more about such situations than I do think it's

a big deal.

Q. That wasn't my question. My question is, is it

accurate to say that the pipeline that you were concerned

about was located at least 200 feet away from the facility

boundary?

A. I do not have personal knowledge of that. That's

what you told me. The way they described it to me, it's

along the boundary.

Q. Were there any other witnesses who you claim your

ability to cross examine was negatively affected?

A. I'm not sure that there is, but -- I'm not sure

that there is.

Q. As you're sitting here now, you do not recollect

that there were any other witnesses for whom you claim that

was --

A. I thought about it for a minute, and I can't come

up with anything, but I'm not -- I don't discount that I

might not just be thinking of it at this moment.

Q. Are you contending that the decision rendered by

the City of Madison was fundamentally unfair?

A. Are we contending that the decision was

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fundamentally unfair?

Q. Yes.

A. I think they're contending they didn't make a

decision.

Q. When you say the City of Madison did not make a

decision, would you describe for us what you mean?

A. Well, I think that the -- And I don't know that

I'm going to have all of this correct, but it's my

understanding that the vote for siting must be based upon --

that each of the criteria -- of those nine criteria must be

proven, and it must include their findings, and the City of

Madison voted as at a city council meeting, and there's few

sentences in a middle of the city council minutes, and there

was -- when we went to get a copy of the -- because we read

about that there was a vote, and we went to get a copy of the

decision, there was no decision, and that's what we were

given was the three-page copy of the minutes with a few lines

about the vote.

Q. So, is it your contention that the City of

Madison did not follow appropriate procedures in reaching its

decision granting siting approval?

A. I'm saying that I don't believe that they did

have siting approval. I can't talk about the reaching part.

I mean, they voted. I wasn't there. I didn't hear what was

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discussed or anything with the reaching. All I know is that

they did not submit a decision and the reasons for their

decision that they complied with all the nine criteria.

Q. So, your contention is that the City of Madison

did not render a decision on the siting application?

A. That's correct.

Q. Can you describe for us why the action taken by

the City of Madison was inappropriate or improper?

A. Well, if the citizens or anybody don't have a

proper decision, then they don't have the ability to appeal.

They have to know what it is that they're appealing, and they

have to know when the decision was made because there's a

certain timeline -- I'm not for sure, but maybe 35 days or

something -- after which they must -- or during which they

must appeal, and if you're waiting for that decision and the

decision document, and then they're counting the vote that

they took as the decision, and you blow your 35 days, then

you're out of luck. So, we chose and the Pollution Control

Board accepted that a vote -- we could appeal from that vote,

even though there was, in our view, no decision rendered.

Q. So, you're saying that the steps taken by the

City of Madison here may prevent an interested party or

citizen from appealing a decision or a punitive decision made

by the City of Madison; correct?

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A. Yes.

Q. And, yet, you're here having filed this appeal

and presenting your case before the Pollution Control Board;

correct?

A. And because we decided that we better because we

didn't know -- You could -- I think there's in the law that

if the City doesn't render its decision within so many days

after you submit your application, then it's automatically

deemed granted, the application of the siting is granted.

So, if we wait around and we don't appeal within that time,

then they can grant it, and we lose all our rights, and I

think that's fundamentally unfair.

Q. So, if you're right that the City did not take

the proper steps to decide this appeal, we should be arguing

in this case that there should be a deemed approval, we

shouldn't be going through this exercise; is that correct?

A. That's a decision for the Pollution Control

Board.

MR. MORAN: Thank you, Miss Andria. I have no further

questions.

HEARING OFFICER WEBB: Mr. Papa, do you have any

questions?

MR. PAPA: Yes, ma'am. Thank you.

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C R O S S E X A M I N A T I O N

by Mr. John Papa:

Q. Miss Andria, I'm John Papa. You and I have met

several times before.

A. Yes, sir.

Q. I'd like to ask some follow-up questions. If I'm

not clear in my questions, would you be kind enough to ask me

to restate them or rephrase them?

A. Yes, sir.

Q. Thank you. Ma'am, a good portion of what I'd

like to talk to you about and we'll go back over the attempts

you made to obtain information --

A. I can't hear you.

Q. -- attempts you made to gain information from the

City about the process that was ongoing concerning this

application. Just so we have a good understanding about this

process, you had known of the intent of Milam to expand this

landfill for some months before the hearing in December of

2006; correct?

A. That's correct. And I want to correct what

you're saying. We are contending that it's not an expansion,

that it's a whole new landfill.

Q. That's fine. I don't take exception to whatever

you want to characterize it as yourself. However, the

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application was not something that was a surprise to you

several months before this hearing in December of 2006;

correct?

A. Was the application a surprise to me?

Q. Yes.

A. The application, I knew that it was coming.

Q. That application -- in fact, you obtained a copy

of that application, which is several inches thick, and I

believe you indicated from Mr. Durako; is that correct?

A. I don't know if it was from Mr. Durako or from

Miss Livingston, but, yes, Waste Management provided us with

a copy of the application.

Q. And that was how many months before the hearing

in December, do you remember?

A. I do not remember.

Q. Is it fair to say that it was at least two or

three months before the hearing?

A. I do not know.

Q. You've raised issues of fundamental fairness, and

I gather that one of the aspects of fundamental fairness that

you believe is important in this process is to make sure that

the people involved in the decision-making process be given

enough information as far in advance as possible so they can

react to the information and take appropriate action; is that

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right?

A. Are you talking about the City or a citizen? I

don't understand your question.

Q. Well, let's talk about that. In this instance,

what is your understanding as to the role of the City when

one of these applications for a siting approval is filed;

what's the City supposed to do?

A. The City -- There's rules about what the City is

supposed to do and what they have to do.

Q. Is it your understanding that the role of the

City is to actually make a decision as to whether the

application should or should not be granted or approved?

A. It's my understanding that the role of the City

is to decide whether the applicant has met all nine criteria

that are required under the law of the State of Illinois.

Q. And does your understanding of the process

include the fact that, in addition to receiving information

from the applicant, the process provides for opportunities to

members of the public to provide information to the City for

consideration?

A. I believe that there's a very fine line of the

citizens in interacting with the City until the public

comment period. I think that you're not supposed to discuss

it -- The decision-making body is not supposed to discuss the

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application because they're the decision makers.

Q. But you understand that private citizens are

given a role in presenting information to the City for

consideration; are you not?

A. In the public comment section in the hearing,

yes.

Q. The hearing and the public comment section;

correct?

A. Yes.

Q. Now, the law, as you understand it, doesn't limit

citizen participation to citizens of the municipality itself;

does it?

A. That's correct.

Q. That's how you got to be involved in this; isn't

it? You don't live in Madison; do you?

A. I do not.

Q. Okay. You've got members of your organization

who have grown up in Madison, though; correct?

A. We have members who have -- either live or have

lived in Madison, yes.

Q. You understood that fundamental fairness gave

these citizens an opportunity during the hearing and during

the public comment period to give information to the City of

Madison so that they could consider that in making its

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decision as to whether to approve the application or not;

correct?

A. Correct.

Q. And you knew that months in advance of this

hearing in December of 2006; didn't you?

A. Did I know that the citizens could participate?

Q. Yes.

A. Yes.

Q. And you knew the citizens could introduce

evidence into the hearing; correct?

A. I think that's a difficult thing. I think it's

provided for, but it's a difficult thing to accomplish in

reality.

Q. Well, you said that ABC, your organization, has

over a hundred members; right?

A. Yes.

Q. Some of those members are professionals, like an

archaeologist like Dr. Kelly; correct?

A. Right.

Q. I presume other ABC members have other expertise

that they are in possession of; correct?

A. Some of them do.

Q. How about yourself? Let's talk about your

background. What is your educational background?

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A. May I ask the relevance of the question?

Q. No. I think it's a legitimate question.

HEARING OFFICER WEBB: Do you not want to give your

educational background?

A. I have a degree in art history, I have graduate

work in math communications, and I have a lot of work in

political science.

BY MR. PAPA:

Q. Do you have any engineering background?

A. Absolutely none.

Q. Do you have any scientific background?

A. Absolutely none. Nor legal.

Q. Did you understand well in advance of this

hearing in December of 2006 that you personally would not be

qualified to render opinions about issues relative to

archaeology?

A. I'm sorry. Render opinions?

Q. Opinions, yes, about archaeological issues that

might impact this siting application.

A. Oh, absolutely not. I think that anybody with

any sense when you hear that there are mounds prehistorical

ancient Indian mounds, when something is close to the

2,000 feet from an archaeological world heritage site --

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there aren't many of them in the world -- when there are

Indian remains found, I think anyone without an archaeology

degree can decide whether that's appropriate or not to put a

landfill and dump garbage on it.

Q. Well, I'm not asking you about your opinions

about what may be appropriate or not generally. I'm wanting

to know whether you have expertise where you can give

opinions to a reasonable degree of scientific certainty about

the impact or effect that this landfill might have on the

site where it was being proposed to be located?

A. I know how to do research, I know how to question

experts, I know how to gather information, and I know how to

present it. Just because I present something, it doesn't

mean that it's necessarily invalid because I don't have a

degree.

Q. Would that opinion be true also for wetlands

issues that might come up in one of these siting

applications?

A. What, that I don't have a valid opinion on

wetlands?

Q. That you're not qualified to express your

opinions to a reasonable degree of scientific certainty in

reference to those issues.

A. Well, I was asked to testify in front of a house

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government, a committee on government reform on wetlands.

That gives me some credibility. I've worked on wetlands

issues for a long time. I know their value, and I certainly

know the record and the history of Mr. Harding and the record

of wetlands destruction in the American Bottoms.

Q. Are you taking the position today that you are an

expert in wetlands science?

A. No, I'm not.

Q. Given your background and history in this kind of

work where you have participated in siting application

processes in the past, you understood generally speaking that

at a hearing, witnesses presented on behalf of the applicant

would be testifying; correct?

A. Correct.

Q. You understood that witnesses could be called by

people in opposition to the application to testify; correct?

A. I'm a little fuzzy on that part.

Q. Well, when you read the ordinance that you picked

up at City Hall --

A. 1670.

Q. -- 1670, you certainly saw there that, in

addition to submitting documents, that you would be allowed

to present testimony as to any issues you felt were relevant

to the application itself; correct?

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A. I don't remember that part of it, but I'm sure

it's there.

Q. Well, from your experience in other hearings, you

knew that people could come and testify, could be called to

testify about the application itself; correct?

A. I'm not clear that people can -- that we as

citizens can call someone to testify. I think that involves

subpoenas and all other kinds of things. If someone

voluntarily wants to testify, that's a whole other thing, but

to call a witness, I don't think you can do that.

Q. That's your understanding, that you don't have

the right to have a witness testify if you asked them to come

and testify?

A. No, that's not what I said.

Q. So, you do believe that if you asked someone to

come and testify, they could testify at a hearing such as was

conducted in December of 2006?

A. I do believe that if someone wants to come

testify, that they can do so, yes.

Q. And this case reflects that some people did come

up and give statements about their feelings concerning this

application during that hearing; correct?

A. I don't believe anyone testified. I believe the

comments that were held that they strangely called being the

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meeting, I believe all of those were public comments without

testifying. And, so, those, my understanding, receive lesser

weight.

Q. You didn't hear anyone that asked to testify be

denied the opportunity to testify during that hearing; did

you?

A. I don't believe so.

Q. You mentioned that there was a part of the

hearing that you didn't think was properly noticed; is that

correct?

A. That's correct.

Q. Just so the record is clear, you indicated that

you first heard about that from the Corps of Engineers;

correct?

A. Correct.

Q. Would you agree with me that you came to

understand after you began to attend the hearing that was

properly noticed, which you acknowledge; correct?

A. The daytime part, yes, it was properly noticed.

I believe so. I didn't look into it that it was or wasn't,

but --

Q. You haven't challenged it; correct?

A. No.

Q. So, you got a notice about a hearing?

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A. No, I did not get a notice. I got an e-mail.

Q. You received information that informed you that

this hearing was going to take place beginning at what, 9:00

o'clock in the morning?

A. No, no, no.

Q. I'm talking about the notice for the hearing that

was published in the newspaper.

A. Okay. The notice -- I don't believe I saw the

notice. I know I said that in the deposition, but I don't

believe I saw that notice in the paper, because I believe

Miss Livingston called me to tell me it was going to be on

the Belleville paper on a certain date, and it wasn't. I

believe I saw or heard from somebody who saw an article that

it was going to be. So, I'm not sure that I saw the public

notice that was in the paper. But you're talking about for

the regular hearing, not for the one that the Corps of

Engineers attended; right?

Q. Well, I'm talking about the hearing that began on

Thursday morning, I believe, at 9:00 o'clock. Okay?

(Witness nods head.)

Q. You had gotten information about that hearing was

going to take place; you believe that the information in the

notice was sufficient and complied with the law; correct?

A. I believe so.

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Q. And you showed up at 9:00 o'clock for that

hearing to begin; correct?

A. I did.

Q. And at that time or shortly thereafter, you found

out that there was going to be an extension from that date

after 5:00 o'clock if people wanted to come and attend

another session of that hearing later that evening; correct?

A. I don't know that I found that out then. I think

I remember that I got an e-mail the evening before, late in

the afternoon from Keith McMullen from the Corps of

Engineers, and I don't remember the contents of the e-mail,

but it said something about the Corps was inviting us to come

to a public hearing in the City of Madison on the Milam. I

don't remember the specific wording. I think that was the

first I heard that there was a separate public hearing on

that night.

Q. All right. So, this hearing that you're deeming

a separate hearing was a hearing that took place the day on

which a notice was issued about the hearing taking place on

this application; correct?

A. It was on the evening of the day that the public

hearing started at 9:00 o'clock.

Q. In your experiences with these public hearings,

you know that sometimes the public hearings are conducted

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during the day; correct?

A. Correct.

Q. Sometimes those public hearings are conducted

during the evening; correct?

A. Correct.

Q. Sometimes they're conducted both in the morning,

afternoon and evening of a particular day; aren't they?

A. I am aware that that has happened. I don't know

that I've been at one that's gone day -- morning, afternoon

and evening. Maybe on a continuous basis. I'm not sure. I

can't remember that I was involved in one, but I can't be

sure that I was.

Q. In any event, you were able to attend all of

these hearings personally yourself both on Thursday and then

the next day, on Friday; correct?

A. That's correct.

Q. Now, let's go back to the Friday before the

hearing when you went to or you called the City Hall and

spoke with an individual about the hearing and whether you

had to preregister for the hearing; right?

A. Yes.

Q. You were prompted to make that phone call by

what?

A. I think I had a conversation with Miss Livingston

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that she said there might be something that you have to do

before the hearing.

Q. So, you had been in communication with counsel

for Waste Management in the days and weeks leading up to that

date about the application?

A. I wouldn't put it on a regular basis. I had

periodically conversations or meetings.

Q. You also -- Well, had you remembered at that time

that in the prior siting application that you participated in

at the City of Madison -- and I'll represent to you it was

back in 1995 -- that the City had, in fact, adopted certain

rules and regulations about the hearing and how it was going

to be conducted?

A. Are you asking me if I remember?

Q. Had you remembered that back around that time?

A. I only remembered it after I saw the ordinance.

MR. PAPA: Madam Hearing Officer, may I approach,

please?

(Hearing Officer Webb nods head.)

BY MR. PAPA:

Q. Ma'am, I'd like to show you what I've marked as

City of Madison Exhibit No. 1, and ask you if you recall this

to be Ordinance Number 2158 of the City of Madison adopted on

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July 5th, 1995 relative to a procedure for approving a

regional pollution control facility site in the City; is this

a document that you had familiarized yourself with years

before this hearing in December of 2006?

A. I remember that there was an ordinance back 10

years ago, 12 years I guess it is. I don't remember what was

in the ordinance. I do remember taking the document back

things -- different things on hazardous waste, incineration

and different things to the City.

Q. You remember back in 1995 that you actively

participated in a hearing before a hearing officer by the

name of William King during a hearing that spanned several

days; correct?

A. You reminded me of that during the deposition,

and I could not come up with his name or remember a lot about

it. I remember some things very vividly from that time. I

did not remember Mr. King. I'm sorry.

Q. So, when you obtained the Ordinance Number 1670

from the Clerk of the City of Madison and looked at it, did

that refresh your recollection that, in fact, Madison had a

similar ordinance back in 1995 when you participated in that

siting application hearing?

A. Yes, it did.

Q. Now, do you remember back from 1995 that the

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hearing officer, Mr. King, did make certain rulings that

related to the application of the rules that were set forth

within the ordinance about admission of evidence and

documents and exhibits?

A. I'm sorry, Mr. Papa, but I do not remember.

Those are the things that I do not remember about that.

There are things that I do remember about that time, but I do

not remember Mr. King's rulings.

Q. Let me see if I can refresh your recollection.

MR. PAPA: And this would be, Madam Hearing Officer, the

Court can take judicial notice of since it is part of the

findings of the hearing officer, Mr. King, that would be part

of the record of the Pollution Control Board from back during

that period of time.

HEARING OFFICER WEBB: The ordinance you mean?

MR. PAPA: No. His findings that were made part of the

record in the appeal of that process.

HEARING OFFICER WEBB: Okay.

BY MR. PAPA:

Q. The case number -- I don't have that -- I think

it's 3-14-95, but on September 11th, 1995, Mr. King rendered

certain findings that included the following, on Page 10:

"It will be noted that in compliance with Rule 13 of that

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ordinance, providing that the rule shall be interpreted

liberally by the hearing officer, and that the hearing

officer has power to bury the rules and deviate therefrom

when deemed necessary by him in order to conduct the public

hearing consistent with fundamental fairness. The hearing

officer, in fact, did not require the proponents or opponents

of the application to strictly follow the ordinance, but, for

instance, granted opportunity for verbal cross examination by

both the proponents and opponents, permitted the introduction

of exhibits which were not previously marked or offered for

evidence, permitted the testimony of witnesses not named on a

witness list submitted to the hearing officer prior to the

hearing, and generally permitted the proponents and opponents

to offer into evidence provided it's all verbal testimony and

documentation presented by both sides during the public

hearing process or in the 30 days following the conclusion of

the public hearing." Do you recall -- Does that refresh your

recollection at all as to how the hearing officer back in

1995 conducted that hearing that involved an application

before the City of Madison?

A. Again, I have some very vivid memories of that,

and those were not of my memory of that time, but I remember

Mr. King briefly as to what he did, and that I think he was

an attorney in Edwardsville, but I really don't remember.

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That was 12 years ago. And I don't remember that hearing in

terms of how it was conducted by Mr. King.

Q. Well, you will agree with me, will you not, Miss

Andria, in Ordinance 1670, it specifically relates that, "The

hearing officer shall make all decisions and rulings in

accordance with 40.1 of the Act and fundamental fairness"; do

you recall that portion of the ordinance?

A. If you're reading from it, I'm sure it's there.

Could I ask one question? Is 1670 -- And are you submitting

this to the record is, this 1670 in the record?

HEARING OFFICER WEBB: Please just answer the question

that's asked. Mine is labeled 1258.

MR. PAPA: This is the old one.

HEARING OFFICER WEBB: Oh, okay. Thank you for the

clarification.

BY MR. PAPA:

Q. You mentioned 1670. And yesterday you remember

giving a deposition?

A. Yes.

Q. And I asked you to bring to the hearing today a

copy of any documents you received from the City of

Madison --

A. Yes.

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Q. -- correct? You received -- You're acknowledging

you received Ordinance 1670; do you not?

A. Yes.

Q. You didn't bring that today; did you?

A. Did I?

Q. I'll show you what your counsel had given to me.

A. If I didn't bring it, then I didn't have it, or I

couldn't find it.

Q. Ma'am, is my understanding correct, that one of

the reasons that you believe the process conducted by the

City of Madison was not fair to you is because you weren't

allowed to introduce evidence that you wanted to introduce at

this hearing?

A. That was one of the things that we thought was

unfair.

Q. Part of the evidence that you wanted to introduce

was archaeological evidence; correct?

A. That's correct.

Q. You knew about issues relative to archaeological

matters related to this site, at least in your mind, well in

advance of the hearing; didn't you?

A. Did I know about archaeology matters on the site

in advance of the hearing? Yes.

Q. You probably tried to bring those back up with

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the Fairmont City application several years ago; correct?

A. I know that archaeology was brought up. I think

it was a member of the community that brought up putting

landfills and garbage on Indian mounds. She was of Native

American heritage. I don't remember specifically that we

were -- Since it was a vertical expansion and not a

horizontal expansion, I don't think we went into a lot of

what was going to happen destroying additional land on the

ground.

Q. Would you agree with me that the person you were

getting most of your information from in terms of these

archaeological issues is probably Dr. Kelly?

A. Well, also the archaeologist at the mounds.

There are several archaeologists at the mounds.

Archaeologists that I've talked to with some of the

university, not just Dr. Kelly, no.

Q. Well, what you've brought here today, this

Plaintiff's Exhibit 11, that you're asking to be introduced

into this record, your representation is that these three

pages, Exhibit 11, are your notes based upon what Dr. Kelly

was telling you about this site and issues that he felt

needed to be raised about the archaeology issues relative to

this site; correct?

MR. MORRISON: Object to the question. It lacks

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foundation. That was not her prior testimony that those were

her notes.

BY MR. PAPA:

Q. Perhaps I need some clarification then. What is

your purpose in introducing Plaintiff's Exhibit 11? What's

this supposed to be?

A. You asked me, I believe, at the deposition

whether I was prepared, whether we had done -- and you were

trying to insinuate or Mr. Moran was -- I'm not sure -- that

we weren't preparing any information and questions with

regard to the hearing and archaeology, and those are Dr.

Kelly's -- some of Dr. Kelly's notes on some of the things he

found to question in the archaeology report that was handed

in at the end of the hearing, and he got those from the notes

that were filed that Mr. Durako gave to me. He looked

through that, and he --

Q. I'm really confused now. I thought you testified

yesterday that you had --

MR. MORAN: Tuesday.

A. Tuesday.

BY MR. PAPA:

Q. I'm sorry. Thank you. I thought you indicated

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in your deposition on Tuesday that you had meetings or phone

calls with Dr. Kelly, and you had made some personal notes

that you intended to use at the hearing to cross examine

people. Is that what these notes are?

A. No. That was Dr. Kelly's notes.

Q. So --

A. And I was going to use them with some other

things that are with pink stickies to question the

archaeologist on parts of the archaeology report that was in

question and that were inadequate, and that's from Dr. Kelly.

That's not my writing.

Q. Well, can you show me on Plaintiff's Exhibit 11

where Dr. Kelly's name appears anywhere?

A. I don't think it does.

Q. Can you show me on Exhibit 11 a date that shows

when this document was prepared?

A. I don't think it does.

Q. When you say that you were prejudiced or

adversely impacted by not being able to cross examine someone

because of Dr. Kelly's notes during the hearing --

A. I don't think I said that.

Q. Is that an accurate statement; did you have some

notes that you were going --

A. I wasn't able to cross.

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Q. Did you want to cross examine someone based upon

notes that you had received from Dr. Kelly during this

hearing?

A. Did I want to cross examine someone based on Dr.

Kelly's notes and reading of the archaeology papers that were

given to us? Yes, I did.

Q. Are you saying you were given archaeology papers

in advance of the hearing?

A. That's correct.

Q. Okay. Do you remember what those were, what

those papers were that you were given in advance of the

hearing about archaeology issues? I'm presuming you were

given them by the applicant?

A. By Mr. Durako.

Q. So, you had this information in advance of the

hearing. Dr. Kelly -- Is that correct? You had some

archaeology information in advance of the hearing; correct?

A. Correct.

Q. You got that from Mr. Durako; correct?

A. Yes.

Q. You understood that that was a position taken by

or documents that were going to be relied upon by the

applicant in reference to the application; correct?

A. I assumed so.

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Q. You went to a member of your organization, who is

a professor. Is he an archaeology professor? What's his

degree at Wash U?

A. He's got a doctor. I'm not sure what it is.

He's an archaeologist. He's, I think, a cultural

anthropologist. I'm not sure.

Q. And this is Dr. Kelly; correct?

A. Correct.

Q. In advance of the hearing, you have an

opportunity to meet with Dr. Kelly or talk to him on the

phone, and he looks at documents that were given to you by

applicant in this case; correct?

A. Correct.

Q. You make some notes from your discussions with

him; correct?

A. Correct.

Q. Exhibit 11 is not those notes, though; right?

A. No. That's from Dr. Kelly. That's his notes.

Q. Okay. Do you know when these were made?

A. I think a couple days before the hearing.

Q. Would you agree with me then that any issue that

you have relative to fundamental fairness and the

introduction of Dr. Kelly's observations into this case would

be moot if Dr. Kelly subsequent to the hearing submitted

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documentation for consideration by the City?

A. Well, Dr. Kelly's report or documentation is

precluded on what this is, and this was never identified what

this is, the papers that we got. It's not an official

application. It wasn't an official report. It wasn't

anything. It was basically given to me by Mr. Durako. He

said, "This is what I can find on archaeology. I don't know

if it's all there."

Q. I want to make sure the record it clear. The

information contained on Plaintiff's Exhibit 11 is

information that you are submitting was prepared by Dr. Kelly

in advance of this hearing; correct?

A. Correct.

Q. You've indicated that you're aware Dr. Kelly

submitted a report as a member of the Powell Archaeological

Research Center in Fairmont City, Illinois after the hearing;

correct?

A. No, he did not submit a report. He submitted --

I believe Powell Archaeological Research Center submitted a

comment letter.

Q. Okay. Are you familiar with the fact that on

January 19th, 2007, he authored a document that was submitted

during the comment section or period of this case?

A. Yes, I am.

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Q. Did you participate with Dr. Kelly in the

preparation of the document dated January 19th, 2007?

A. I did not.

Q. Have you actually read what he submitted?

A. At one time I did. I haven't read it lately.

Q. Certainly you understand this process of a siting

application and the comment period to allow opponents, as

well as proponents, to submit whatever information they want

to have considered admissible by who's making the decision in

this case during this comment period?

A. That's correct.

Q. So, if Dr. Kelly wanted to relate everything that

was contained on Plaintiff's Exhibit 11 during the comment

period, you know of no reason why he would have been

prohibited from doing so; do you?

A. Well, it refers to specific information in the

papers that, to our knowledge, haven't been submitted. So,

if you say, "On page something," or cite "Page 1 of this

something," cite 158 or whatever it was, it doesn't make any

sense. It doesn't have any relevance. No one knows what

he's saying or implying. That's why it was important to

submit the archaeology report, Waste Management, Burns and

McDonnell, Mr. Shinn's report while we could still ask

questions on it. A document with questions about something

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that's not in evidence is nothing. It means nothing.

Q. You indicated that you made an attempt to contact

my office on Friday before the hearing in December of 2006;

correct?

A. Correct.

Q. And I was not available when you made that call;

correct?

A. That's correct.

Q. You indicated that you did speak with an

individual at the office; correct?

A. That's correct.

Q. Did you make any attempts during -- later in the

day on that Friday to reach me?

A. No. The receptionist or whoever answered the

phone said that you wouldn't be there the rest of the day.

So, I did not.

Q. Do you think it was important for you to get in

touch with somebody from the City about how this hearing was

going to be conducted?

A. I identified who I was, what I was calling about,

and that it was important, and I would assume that your

receptionist would have given you the message.

Q. Why did you feel it was important for you to

contact someone from the City about how the hearing was going

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to be conducted?

A. Why was it important?

Q. To you.

A. So I would know what the rules are.

Q. You felt that was going to be very -- You didn't

want to have any problems in presenting whatever you wanted

to present during that hearing; did you?

A. I really didn't want problems with this. I

really did not.

Q. You certainly have had access before that date to

representatives from Waste Management; correct?

A. Yes, absolutely.

Q. In fact, one of their lawyers communicated with

you from time to time about this whole process; correct?

A. As did Mr. Durako through his attorney, but I did

meet with him.

Q. So, the applicant in this case appeared to be

cooperating with you; did they not?

A. Yes, they did.

Q. You weren't expecting any funny business, as you

quote, as you described it, from the applicant; did you?

A. I certainly didn't expect anything like that, no.

Q. And when you called the City Hall on Friday, the

Friday before this hearing, it wasn't out of the ordinary for

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you to be told that you should direct your questions about

how a hearing is going to be conducted to the City attorney;

right?

A. Was it unusual? I don't know. I don't call city

halls and ask things like that often. So, I don't know.

Q. But you're a seasoned veteran, if you will, of

these siting applications; are you not, Ms. Andria?

A. I guess I would say that, yes.

Q. You knew well enough to call the City Hall that

day to inquire about how the hearing is going to be

conducted; correct?

A. Yes. And like I said before, I think that the

information belonged at the City Clerk's office. I don't

think that citizens have to track down an attorney. I think

that the proper procedure is to have information available at

the City Clerk's office.

Q. Well, the only way to get the information from

the City Clerk's office is to go to the City Clerk's office;

correct?

A. I called. That's why I called them.

Q. I understand. Where did you call from?

A. Where did I call from?

Q. Yes, ma'am.

A. What City?

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Q. Sure.

A. I don't remember.

Q. I mean, were you in Madison County? Were you out

of state?

A. I'm not positive, but I'm pretty sure I wasn't in

Madison County.

Q. Okay. Could you have made this call the day

before and inquired about any rules or procedures to be

followed?

A. I think I said that I just -- I had a

conversation with Miss Livingston, and she said, "I think

there's some rules or something in place." So, I did not --

I think I only found out then.

Q. So, the only reason you called is because Miss

Livingston suggested maybe you should look into this?

A. That's my memory.

Q. So, that was the diligence that you were

exercising on behalf of American Bottom Conservancy and the

Sierra Club in reference to this application that you knew

was pending for several months before that date?

A. There was nothing in any articles or anything or

anything that said there was a precondition of filing, and I,

frankly, did not remember your -- 12 years, the experience

beforehand.

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Q. Well, when you weren't able to reach me that

Friday, did you have the heightened sense of concern about

having your rights being jeopardized because of your

inability to reach me that day?

A. I was unhappy. I don't know. Heightened

concerned is -- As I said before, I thought this did not go

well.

Q. Did you make any other attempts to reach me that

Friday?

A. I did not.

Q. Did you call back to City Hall after you tried to

reach me at my office and inquire if there was another way

for them to contact me to return your call?

A. I did not.

Q. Did you call anyone on Saturday?

A. I did not.

Q. Anyone on Sunday?

A. You mean from the City?

Q. Or me.

A. No.

Q. Did you look in a telephone book to see whether I

was listed with a home address?

A. No.

Q. Were you able to look in a telephone book to find

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out whether I was listed at a home address?

A. Do I have a telephone book, is that the question?

Q. You can interpret it that way, sure.

A. Well, I left my name, my cell number and the

reason I called. I assumed that you had that information or

would get that information. I made no further attempt to

keep calling you.

Q. So, you left your cell number?

A. Yes.

Q. What number was that?

A. I'd rather not put that in a record that's going

to be on the Pollution Control Board site.

Q. Will you give an address?

A. Absolutely not.

Q. So, you're telling this Court that even though

you aren't willing to disclose an address or a cell phone

number, that you gave that number to someone at my office to

call you whenever I wanted to; is that your testimony today?

A. That I left my -- I assume my cell phone number.

Q. You're not certain; are you?

A. That's a good question. Maybe I didn't. Maybe I

didn't want to leave my cell phone number.

Q. Are you certain you even left your name?

A. Absolutely. I identified myself and the reason

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that I called, and that the City -- I had just talked to the

City, and they wanted me to -- I mean, I don't remember all

the specifics that I said, and I recounted it in the

transcript of the hearing. I remember specifically after I

identified who I was, what I was calling about, that I was

told you guys were going to be gone all day long.

Q. Who's the secretary/treasurer of the American

Bottom Conservancy?

A. Mark Feldworth.

Q. Was he the secretary/treasurer back in December

of 2006?

A. I believe so.

Q. You were aware that Mark Feldworth and I grew up

together in Madison; were you not -- back in December of

2006?

A. I had been aware at some point that he knew you

and that you may have gone to school together. I wasn't sure

in what proximity.

Q. In fact, had you inquired, you would have

determined that his father continues to live next door to my

parents in the 1800 block of Third Street in Madison; would

you not?

A. I know that his father lives in Madison. I did

not know it was next to you. And I did ask Mr. Feldworth

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right after the deposition, I told him what you said, that I

should have asked him for how to get in touch with you, and

he said he hadn't seen you in years, and that he did not know

how to get in touch with you and certainly didn't have your

cell phone number.

Q. Needless to say, you made no attempts, even

though you knew Mr. Feldworth was from Madison, that his

parents live next door to my parents or at least we grew up

together, you made no attempts to contact Mr. Feldworth to

find out how you might be able to get me over that weekend;

correct?

A. Mr. Papa, at that day, any knowledge I had about

you and Mr. Feldworth was not in my mind at all, and I had no

idea, I had no memory whether he was even in town then. He's

travels a lot. But, no, there was no -- nothing that I

remember connecting, "Oh, Mark, will know how to get in touch

with him." That did not happen.

Q. Monday morning comes around. Do you make another

telephone call to my office?

A. I don't believe so.

Q. Did you make a call to City Hall?

A. I went to City Hall.

Q. About what time of the day?

A. I do not remember.

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Q. You're positive you went on Monday, the 18th?

A. I'm pretty sure. I don't remember. I know I

didn't want to go alone. I wanted to go with someone. And I

waited until Mr. Norman was available to go with me. So, I

don't remember the time.

Q. Were you concerned about your security coming to

Madison?

A. I would like to have had Mr. Norman with me to

observe and learn and ask any questions, and I just feel more

comfortable having him come with me.

Q. So, you wanted him to come along so he could

learn what to do under circumstances like this?

A. I wanted not to go to the City Hall alone.

Q. You get to City Hall, and you ask for whether

there's any ordinances, I gather, or rules that are going to

apply to this hearing --

A. I wasn't. I'm sorry. I interrupted you.

Finish.

Q. Is that what you asked for, whether there were

any ordinances and rules that could apply to this hearing?

A. I don't think I used the word "ordinance" because

it didn't occur to me. I think I asked something about the

nature how the hearing was going to be conducted, and I don't

remember specifically.

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Q. At that time, did the clerk -- And you remember

this was a female clerk; correct?

A. Yes.

Q. The clerk advised you that there was an ordinance

that had been passed back in June that related to this

hearing?

A. I believe so. I don't know that she said it was

in June, but it was written on there.

Q. You asked for a copy of the ordinance?

A. Yes.

Q. She told you that it was going to cost so much

money for the copy and charges; correct?

A. Correct.

Q. You took exception to the amount you were being

quoted; correct?

A. Correct.

Q. She went and made a phone call and then came back

and told you that you were going to be charged a lesser

amount, and you willingly paid that lesser amount; correct?

A. Correct.

Q. She made out a receipt for you for the money that

you gave her; correct?

A. I assume so.

Q. You don't have a copy of that; right?

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A. I do not have that receipt. I couldn't find it.

Q. Two days ago I asked you to look around and find

that receipt; right?

A. I did look.

Q. You found a receipt from three months or four

months later; correct?

A. It was with the documents that I brought.

Q. But you couldn't find the receipt from December

of 2006; right?

A. That's correct.

Q. She made that receipt out or at least made some

note of the receipt the day you were there; didn't she?

A. I'm sorry?

Q. She actually made that receipt out the day you

were there?

A. I would assume. Why would she make it at another

time?

MR. PAPA: May I approach the witness?

(Hearing Officer Webb nods head.)

BY MR. PAPA:

Q. Ms. Andria, I'm going to represent to you this is

a copy of the receipt ledger from the City Clerk's office in

Madison, Illinois. I'd like to direct your attention to the

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third entry -- actually, the fifth entry from the top that

has your name on it, Kathy Andria. Do you see that?

A. Yes.

Q. See where it says that a copy was made of

Ordinance 1670 and two documents for the hearing?

A. Yes. It's hard to see, but I see "1670". I

can't read what it says.

Q. What date is shown for the date of that?

A. 12-19-06.

Q. What's the amount shown for how much you paid?

A. $1.80.

Q. Does that refresh your recollection as to the

amount you paid?

A. It seems very reasonable.

Q. Does that refresh your recollection as to the

date you were there?

A. I don't -- I don't know that -- I guess I was

there that date then. I don't know. I thought I went

Monday.

Q. All right.

A. But I know I wanted Mr. Norman with me.

Q. Is it possible that you didn't go to City Hall

until Tuesday as that document seems to indicate?

A. It is possible, but I don't have that receipt to

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prove that I did or didn't.

Q. In the event you didn't go to City Hall until

Tuesday to inquire about rules for this hearing, what

attempts did you make to reach me on Monday?

A. I don't believe I did try to reach you on Monday.

It was my memory -- and if this is wrong, it's wrong, but I

really wish -- This says 1.80. If there's a receipt, I think

that you would have that -- the copy of the receipt like this

one was. It was not just a ledger page, but it was something

that had a number and everything. I would --

MR. PAPA: Believe me, Miss Andria, I wish you had that

receipt like you have the other one. I don't have anything

further.

HEARING OFFICER WEBB: Thank you. I'm guessing there's

quite a bit of Re-Direct.

MR. MORRISON: Madam Hearing Officer, there's not quite

a bit. Seven distinct questions based upon one of

Mr. Moran's questions.

HEARING OFFICER WEBB: Okay. Would you like to do that

now, or would you like to take a five-minute break, or I

guess --

(A brief discussion off the record.)

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R E D I R E C T E X A M I N A T I O N

by Mr. Bruce A. Morrison:

Q. Miss Andria, thanks for bearing with us and

hanging in there. Several follow-up questions on one of

Mr. Moran's questions. Mr. Moran asked you if it was your

contention that your ability to cross examine Mr. Schanuel

about archaeology was negatively affected by the applicant

not filing a written report on archaeology. Now, the

applicant had given to you before the hearing papers on

archaeology; is that right?

A. The applicant had given me papers on archaeology

before the hearing, yes.

Q. And you gave those to Dr. John Kelly?

A. I did.

Q. And in return Dr. John Kelly gave you some notes;

is that right?

A. That's correct.

Q. And those notes are marked ABC Exhibit No. 11 at

the bottom; is that right?

A. Yes.

Q. And you had those notes with you when you sought

to question Mr. Schanuel on archaeology; is that right?

A. Yes, they were in a folder.

Q. Questions you sought to ask, were they based on

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those notes?

A. I'm sorry?

Q. The questions you sought to ask Mr. Schanuel and

ask other Waste Management witness present at that hearing,

were your questions going to be based on those notes?

A. Well, they're not precisely because they have --

they refer to specific Phase 1 surveys and material that

wasn't in evidence and that he hadn't knowledge of, but they

were -- there were some things that I gleaned out of it

that was because of the incompatibility of the archaeology.

Q. So, what did negatively affect your ability to

ask Mr. Schanuel or any other Waste Management witness about

archaeology at that hearing?

A. The report wasn't submitted. There was no

archaeologist to question.

Q. Okay. And you attempted to question somebody --

A. I attempted to question --

Q. -- at that hearing?

A. Yes. I attempted to question Mr. Schanuel

because he was the person certified as the expert on

incompatibility.

MR. MORRISON: And the transcript shows the result of

your effort or what happened when you attempted to question

Mr. Schanuel. Madam Hearing Officer, what I would like to do

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at this time is renew my offer to introduce into evidence ABC

11, the notes of Dr. John Kelly. Mr. Papa elicited a ton of

testimony about those notes, and in particular he asked Ms.

Andria a question, "Well, isn't the issue of Dr. Kelly's

notes going to be mooted by what Dr. Kelly submitted in

comment? The issue about fundamental fairness, is that all

moot because Dr. Kelly submitted these comments anyway?" And

the only which the Board is going to be able to determine

whether that issue is moot or not is to have those notes of

Dr. Kelly before it.

HEARING OFFICER WEBB: Would the Respondents like to

comment?

MR. MORAN: The testimony that counsel just alluded to

does not in any way address the fundamental question basis

for the objection, which was this information is submitted in

an effort to address an issue substantively, which was not in

any way relevant or pertinent to this proceeding. It's

offered to provide substantive evidence on what is allegedly

a relevant matter. So, it still has not addressed the

question of whether or not you can now attempt to submit it

at this hearing substantive evidence going to allegedly one

of the criteria. So, I don't think anything's been

established that would warrant a change in your ruling to

allow this as an offer of proof and nothing more.

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MR. PAPA: If I might also add, Your Honor, as far as

the City's concerned, this document has not been sufficiently

authenticated to say who was authored by. Dr. Kelly's name

appears nowhere on this. There's no date as to when this was

prepared, who prepared it. It's extremely prejudicial I

think to try to use this at this stage of the proceedings,

particularly if -- And I think I've gotten confused myself on

it in a way. I'm not sure if this document was prepared

before the hearing or after the hearing, whether this is part

of the notes that Miss Andria was talking about that she was

going to use for cross examination or whether it wasn't. At

one point I thought it was, but another point of her

testimony I thought she indicated this was not part of what

she was going to use for cross examination. To that extent,

it wouldn't be relevant to something that she said she was

going to introduce at the hearing. If, in fact, this is

something authored by Dr. Kelly after the hearing, we have a

document that we know he authored after the hearing that is

certainly been accepted by the City and was considered by the

City. If he had chosen to include other information within

that document, there's no question it would have been made a

part of this record, but for whatever reason, the opponents

in this case chose not to introduce it at a time when it was

appropriate to introduce it. And that puts us at a very

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great disadvantage, I'm afraid.

HEARING OFFICER WEBB: Well, I think I am going to

maintain its status as an offer of proof because it's not in

the record, and I don't think the Board necessarily needs

this document to evaluate the testimony elicited by the City,

but I will present it to the Board so they will have it, and

they can make a different determination if they need to. Do

you have any further Re-Direct?

MR. MORRISON: I don't, Madam Hearing Officer.

HEARING OFFICER WEBB: Do the Respondents have any

further questions for this witness?

MR. MORAN: Yes, I would have further questions, but I

would ask that we break for just a few moments.

HEARING OFFICER WEBB: Okay. We're going to take a

five-minute break. We'll go off the record.

(A brief recess off the record.)

HEARING OFFICER WEBB: Okay. We are back on the record

with additional questions from Mr. Moran.

MR. MORAN: Thank you, Ms. Hearing Officer.

R E C R O S S E X A M I N A T I O N

by Mr. Donald J. Moran:

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Q. Miss Andria, I believe you indicated that you did

receive a copy of the siting application from Ms. Livingston

sometime shortly after it was filed; is that correct?

A. I did receive a siting application. I think it

was from Miss Livingston. I don't remember when I received

it.

Q. Are you aware that the application was filed on

September 22nd of 2006?

A. I'm aware that it was filed counting back

180 days or something I think.

MEMBER OF THE PUBLIC: Speak up, please.

A. That could be right. I'm not sure of the date it

was filed. I'm sure you have the right date.

BY MR. MORAN:

Q. You aren't denying it was filed on September

22nd, 2006; are you?

A. No, I'm not.

Q. How did you pick up a copy of the application?

A. I don't remember.

Q. You don't remember picking it up at Ms.

Livingston's office?

A. That could very well be. I don't remember.

Q. And you picked it up three days of its filing?

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A. I don't remember.

Q. And you indicated that Ms. Livingston had

provided you with other documents relating to archaeological

issues; is that correct?

A. I think they were given to me by Mr. Durako.

Q. I'm sorry. Mr. Durako gave them to you

personally; is that what you're saying; that's your

recollection?

A. I believe so.

Q. Okay. And when did you receive those documents?

Sometime before December 21st --

A. Correct.

Q. -- 2006? And it was a number of weeks before

December 21st, 2006?

A. A number?

Q. At least three or four weeks before?

A. I don't know that it was that long, but it was

not the week before, but a couple weeks because I gave them

to Dr. Kelly.

Q. So, it would be accurate to say that you've been

in Ms. Livingston's office on occasions prior to

December 21st?

A. Correct.

Q. Do you have Ms. Livingston's phone number at her

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office?

A. Yes.

Q. Do you have her cell phone number, as well?

A. Probably.

Q. When you were unable to reach Mr. Papa on

December 15th and you had ask that he call you back, did you

ever attempt to call Ms. Livingston?

A. I don't believe so.

Q. In fact, did you ever attempt to reach or call

Ms. Livingston at any point between December 15th and

December 21st of 2006?

A. I don't remember.

Q. I believe you indicated that at this point, you

don't know whether or not you left a telephone number with

the person that you spoke to on December 15th from the City

of Madison or from John Papa's office; correct?

A. I'm saying that when I called, I identified

myself, the purpose for which I was calling, and I would

assume that I left a number -- a phone number.

Q. But you sitting here today, you don't know

whether you left a phone number; would that be accurate?

A. It's accurate that I'm not positive, but it's

consistent that I would because that's what I would do.

Q. Now, you were asked a question on examination by

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Mr. Papa as to whether you were contending that part of the

reason you are arguing that this process was fundamentally

unfair, is that you were not allowed to introduce evidence at

this siting hearing. Did I hear that correctly?

A. When I -- The first thing that I tried to submit

into evidence, you objected, and you said that it had to have

been submitted according to Ordinance 1670, that it had to be

pre-filed five days before or whatever words you used with

the ordinance.

Q. And is that the basis on which you're now

contending that part of this process was fundamentally

unfair, the fact that you offered a document that was

initially refused admission for the reasons you indicated?

A. Am I saying -- I guess I don't understand. I

really do have trouble with your questions, Mr. Moran.

Q. I'm sorry. I'll try to rephrase it. I don't

mean to be unclear. You said that you're claiming the

process was unfair because you were not allowed to present

evidence; is that correct or not correct?

A. It's partially correct.

Q. Because I didn't see in your Petition For Review

any claim that the fundamental unfairness you're alleging

here was based on the fact that you were not allowed to

present evidence; would that be accurate; it's not in this

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Petition?

A. I'm not sure. I thought that there was something

about the way the conduct of the hearing.

Q. But now I'm just focusing on what you said here

today, that your contention is that because you were not

allowed to present evidence, the hearing was fundamentally

unfair; is that correct?

A. I think that that's part of the fundamental

unfairness.

Q. And is the evidence that you were not allowed to

present the exhibit you offered during the hearings that was

initially refused admission by the hearing officer?

A. Is that the only thing? No.

Q. Is that one of the things that supports an

argument that the fundamental unfairness in this proceeding

was that you were not allowed to present evidence?

A. That's one of the things.

Q. And that exhibit, in fact, was admitted at the

hearing on Friday, on the 22nd; wasn't it? It was initially

refused, but then it was admitted on Friday; wasn't it?

A. Would you remind me what that document was?

Q. Well, you're the one who identified the document.

You identified a document you initially submitted or offered,

and it was refused admission; did you not?

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A. I originally offered a document to question, and

it was refused, and if this is the document about -- from

Rachel's about the cancer deaths near sites, then I don't

think that was admitted into evidence.

Q. And it was not admitted because you were unable

to provide the additional information necessary to provide

the submission of that exhibit; is that correct?

A. No, it was not included -- it was not admitted

into evidence because I didn't put the rule -- I didn't have

it pre-submitted. At the end, it was offered to be added, as

were some brochures I think, but I needed to do something,

and I wasn't sure, but it was like it was over. I mean, it

was like there was I think a gratuitous gesture.

Q. But you didn't provide the additional

information; did you?

A. Well, I did not --

Q. Is that correct?

A. -- provide the information. I'm not really sure

what you were wanting, and I don't think that it would have

any import because I wasn't able to use the document in my

questioning.

Q. So, is that the document that you are claiming

you were unable to present which is part of the reason for

your claim the hearing is fundamentally unfair?

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A. Was that one of the documents?

Q. Yes.

A. Yes.

Q. Were there any other documents or any other

evidence that you were not allowed to present at the hearing?

A. At the hearing with respect to that I tried to

introduce something? I'm not sure.

Q. So, as you sit here today, you cannot recall any

other evidence you sought to offer that was refused; is that

correct?

A. That may be the case. I'm not positive.

Q. I'm only asking as you sit here today right now.

You don't recall any other evidence that you sought to offer

that was refused admission in the siting hearing; is that

correct?

A. During the hearing itself, is that what you're

asking?

Q. Yes.

A. Okay. Yes. I have no -- I can't bring anything

to mind right now. I can't exclude that there wasn't. I'm

not sure.

MR. MORAN: Thank you. Nothing further.

HEARING OFFICER WEBB: Thank you. Mr. Papa?

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R E C R O S S E X A M I N A T I O N

by Mr. John Papa:

Q. Just to make sure that we're clear, was the

article that you're making reference to this Rachel's

publication article entitled "Landfills are dangerous,"

September 24, 1998?

A. It's very possible.

MR. PAPA: This is a document that counsel has marked as

ABC No. 1, with today's date, as Petitioner's list of

exhibits. If I might approach, Madam.

HEARING OFFICER WEBB: Yes.

BY MR. PAPA:

Q. You've testified, Miss Andria, that you don't

believe it was ultimately admitted. Let me show you the

front page of that article and point out the entry made by

the hearing officer saying that this document was, in fact,

admitted into the record on December 23rd, 2006. Does that

refresh your recollection as to whether it was submitted?

A. It was submitted on Saturday.

Q. Well, I'm sorry. I'm looking up side down.

Perhaps that says 22nd.

A. I know it was at the very end if it was admitted.

I don't remember that it was admitted because I said I

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thought that Mr. Moran had some sort of proviso that if only

I did something, that it would be admitted, but, as I said,

it was at the end, and it was kind of confusing to me what

was going on.

MR. PAPA: Okay. That's all, Your Honor.

HEARING OFFICER WEBB: Thank you. Mr. Morrison?

MR. MORRISON: Nothing on Re-Direct.

HEARING OFFICER WEBB: So, there's no further questions

for this witness?

(No response.)

HEARING OFFICER WEBB: Okay.

MR. MORAN: Give me one second.

HEARING OFFICER WEBB: I'm sorry. Hang on.

MR. MORAN: I need to have a moment. I need to get a

transcript. Miss Hearing Officer, if I might approach the

witness.

HEARING OFFICER WEBB: Yes.

S E C O N D R E C R O S S E X A M I N A T I O N

by Mr. Donald J. Moran:

Q. What I'm going to be referring to is Volume Two

of the transcript of the public hearing from the hearing that

took place on December 22nd of 2006 before Hearing Officer

Daniel R. Schattnik. Ms. Andria, let me direct your

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attention to Page 380 of the transcript, as I indicated,

dated December 22nd, 2006, Volume Two, and ask you if you can

read to yourself beginning on Page 380 the colloquy between

you and me ending on Page 384 with the hearing officer's

statement regarding your Exhibit 1.

(Mr. Moran hands document to witness.)

A. Yes.

Q. Is the discussion on Pages 380 to 384 of this

transcript a description of the exhibit that you were

referring to earlier as having been offered by you but

refused admission?

A. I believe so.

Q. Could you read for us out loud the hearing

officer's statement on Page 384 beginning at line 10 with

respect to whether that exhibit was admitted or not?

A. It says, "The Exhibit identified as Andria 1 is

now admitted without objection."

MR. MORAN: Thank you, Miss Andria. I have nothing

further.

HEARING OFFICER WEBB: Mr. Morrison?

MR. MORRISON: Nothing for Re-Direct.

HEARING OFFICER WEBB: Mr. Papa?

MR. PAPA: Nothing further.

HEARING OFFICER WEBB: Thank you, Miss Andria.

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Mr. Morrison, do you have any further witnesses that you

would like to call.

MR. MORRISON: No further witnesses to call, just

exhibits to offer.

HEARING OFFICER WEBB: All right. Let's talk about the

exhibits.

MR. MORRISON: Madam Hearing Officer and counsel, I put

together this packet of exhibits that everybody has a copy

now. Exhibits ABC 1 through ABC 7, this is just an attempt

to collect into one plate exhibits that were offered and

admitted at least according to something that already appears

in the administrative record, and in particular at Page C2219

of the record, there is an Appendix II, list of exhibits

offered and admitted on behalf of opponent to the

application, which, actually, I was assuming that the City of

Madison had prepared that, but I don't know that. In any

case, ABC 1 through ABC 7 are duplicates of documents that

already appear in the record. The number -- The page number

of these documents are on the right-hand side.

ABC No. 8 is a group exhibit, and it's collective pages

from Waste Management's application for siting approval.

When you look at the pages that all of you have, there is no

record number. There is no "C" and then digits on any of

these pages, and that is because my copy of the records that

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I got from the City is in electronic form. I have it here on

this flash drive that I'm holding up. I don't know what the

Hearing Officer has, but when I need to reference the maps

from my electronic copy, there's really no detail. It's kind

of a big black blotch and gray blotch, and for that reason

what I've done is gone to an actual hard copy of the

application from Waste Management, and I've photocopied --

made a color copy of pages from that application and then put

in the corresponding page number from the record that would

be there if I actually printed something out from my flash

drive. With that said, I'm not faulting the City personally

for giving me something electronically. I know Miss Andria

is going to kill for me getting electronic rather than a

paper copy. I actually appreciate the electronic copy. I

just can't see these diagrams.

ABC 9 is something different entirely. These are pages

from a different file, from the Milam landfill vertical

expansion. The cover pages Illinois Pollution Board

certifying that these pages came from that file. These pages

are offered to show that the landfill is incompatible with

surrounding uses because they show that the applicants once

before represented a buffer was to have been a buffer to the

north of Cahokia canal, and the landfill has now jumped over

the buffer.

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There is no ABC 10. The list of exhibits refers to

Exhibit 10, but there is no corresponding 10.

Those are the extent of the Exhibits, with the exception

of 11.

HEARING OFFICER WEBB: So, ABC Exhibit 1 through 8 are

already in the administrative record that's been filed with

the Pollution Control Board; is that correct?

MR. MORAN: Yes, but as Andria exhibits.

THE WITNESS: As what? Pardon me.

MR. MORAN: They were presented at the siting hearing as

Andria Exhibits, not ABC. So, just to avoid any confusion,

the numbers are the same, but at the siting hearing, they're

identified as Andria Exhibits, not ABC. Here they're

identified as ABC, but I believe they are the same

documents --

MR. MORRISON: They are.

MR. MORAN: -- at least 1 through 7.

HEARING OFFICER WEBB: And then 8, what about 8?

MR. MORAN: 8, As Mr. Morrison pointed out, are pages

from the siting application. So, those would also already be

in the record. Certainly we could identify them as ABC 8,

although they're already in the record as part of the siting

application.

HEARING OFFICER WEBB: Do you know whether the Board had

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the same problem Mr. Morrison had? And I haven't looked at

my copies of the photos yet. Would you object to me taking

these photos just because they appear to be of good quality?

I'm not implying that what you filed with the Court wasn't,

but I just don't know. So, I don't know if there's any

objection to taking any of these.

MR. MORRISON: And, actually, Madam Hearing Officer,

what I propose to leave --

HEARING OFFICER WEBB: The original --

MR. MORRISON: These are color copies instead of just

the black and white.

HEARING OFFICER WEBB: I mean, the Board may well have

perfectly good quality copies. If there's no objection, I'll

take them.

MR. MORAN: This is only with regard to what's been

identified as ABC 8?

HEARING OFFICER WEBB: Yes.

MR. MORAN: We would have no objection to you taking

these pages identified as Group ABC 8.

HEARING OFFICER WEBB: Okay. So, I'd admit them as

Exhibits. We obviously do not have to call them Exhibits

because they're already in the record, but we can do that

just to highlight them so the Board doesn't have to look

through the whole record to find them.

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1 through 8, is there any objection to also for the same

purpose admitting these Exhibits as ABC -- And I don't think

we actually referred to any of these during the hearing; did

we? So, it really doesn't matter if we call them ABC

Exhibits or Andria Exhibits; is that correct? Is there any

reason you want to move these as Exhibits rather than just

having them referred to as the Andria Exhibits in the

administrative record?

MR. MORRISON: Oh, I think I see.

HEARING OFFICER WEBB: I mean, if you're going to make

arguments in your post hearing brief, can you just refer to

them as how they're labeled in the administrative record

that's currently on file, or is there some reason that you

would like to do it this way?

MR. MORRISON: And my only concern is that if there is

the same difficulty when either you or a member of the Board

is looking at a particular Exhibit and has the same

difficulty, for example, when looking at a location map of

what is where on the location map, if you and the Board just

have black and whites or something electronically, I suppose

it would be good to also then refer to this as ABC 8 so that

somebody actually knows there is a better copy that somebody

can go to. That's the only reason, the only justification I

have for separately calling these.

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HEARING OFFICER WEBB: I see your point.

MR. MORAN: The only confusion is going to be you have

Andria 1's and ABC 1's. Somebody reviewing the record is

going to be wondering, "Are these exactly the same Exhibits?"

It seems to me it makes more sense from an ease of

administrative review standpoint that we simply leave them as

Andria 1, 2, 3, 4, 5, 6, 7 as they were identified in the

administrative record. As you pointed out, we haven't used

them here. So, it would seem to me the better way to

approach is to leave them as Andria 1, 2, 3, 4, 5, 6, 7 for

facilitating appropriate review by the Pollution Control

Board.

MR. MORRISON: And that makes sense for me. Then what's

labeled ABC 8, would that be Andria 8?

MR. MORAN: No, because there was no Andria 8. Only 1

through 7. They're on the application. It would be easier

to look at the application than -- If you want to call it ABC

A and introduce it here, then I don't have a strong objection

to it, but it would seem somewhat unnecessary.

HEARING OFFICER WEBB: Well, do we know what page of the

record it's on, by any chance?

MR. MORAN: It's identified here.

MR. MORRISON: On the list of exhibits.

HEARING OFFICER WEBB: Oh, I'm sorry. Okay. I see.

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MR. MORAN: So, there are all record numbers or cites

for each of these pages.

HEARING OFFICER WEBB: I see.

MR. MORRISON: And for the sake of furthering the

discussion, I'd be happy to call ABC 1 through 7 Andria 1

through 7 if that's acceptable to the Hearing Officer, and

leaving ABC 8 as ABC 8.

HEARING OFFICER WEBB: That's acceptable to me. Is that

confusing to anybody else? I just don't want to confuse

anything.

MR. MORRISON: And I'll -- With everybody's leave, I'll

prepare a different list of exhibits.

MR. MORAN: I hate to suggest this, but to avoid any

confusion, I suppose if you're going to allow this be

identified as an ABC Exhibit, it ought to be ABC 1 to go

to --

HEARING OFFICER WEBB: We don't necessarily have to --

We don't have to include it. It doesn't really need to be an

Exhibit at all really because it's in administrative record.

So, I suppose from that standpoint, I can just -- I can take

it as an additional supplemental copy of pages whatever,

12,000 whatever pages it is in the record. We could do that

too.

MR. MORAN: That seems to be preferable.

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MR. MORRISON: It does to me, also.

HEARING OFFICER WEBB: Why don't we do that? Exhibit 9

is -- Would you like to comment on Exhibit 9?

MR. MORAN: Yes. Exhibit ABC 9 consists of a letter

John Therriault to the Board, including various documents

from the prior siting application in Waste Management of

Illinois and Village of Fairmont City. It is intended to

present substantive evidence that addresses testimony and

evidence presented at the siting hearing, and as such clearly

should have been presented during the siting hearing. It has

no reference or relation to any fundamental fairness issue,

but indeed attempts to address the substantive criteria, and

as such we object to its submission against the City.

MR. PAPA: The City would join in the objection, and I

don't recall any reference to it being made during any

testimony today.

HEARING OFFICER WEBB: I guess I also don't quite see

the relevance of this document, and it seems like something

that if the Board was truly interested, they could review

this, but I'm not going admit this 9 as an Exhibit. And

there's no 10. And I think 11 -- But I will take it as an

offer of proof if you'd like.

MR. MORRISON: I appreciate that. Thanks.

HEARING OFFICER WEBB: Was that a "yes"?

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MR. MORRISON: Yes, an offer of proof.

HEARING OFFICER WEBB: Okay. So, that's 9 and 11, you'd

like to make an offer of proof? I think we already discussed

11.

(Mr. Morrison nods head.)

HEARING OFFICER WEBB: And 1 through 8 we decided were

already part of the record, but I will reference as such in

the hearing report. Okay. Does the Petitioner have anything

further for their case?

MR. MORRISON: That concludes the Petitioners' evidence.

HEARING OFFICER WEBB: Okay. Thank you. Would the

Respondents like to begin with their Exhibits or call your

first witness, or do you have any witnesses? I'm sorry.

MR. MORAN: Waste Management of Illinois has no

witnesses to present.

HEARING OFFICER WEBB: Okay.

MR. MORAN: It has a document that it would submit as

part of an offer of proof because we don't believe that it is

a relevant document, but given what was heard today and given

what was presented today, we would simply ask to submit this

document in a way as a response to the offer of proof made.

So, we would also ask that it be made part of an offer of

proof.

HEARING OFFICER WEBB: Okay. What document is that?

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MR. MORAN: It's a letter dated August 3rd, 2007 from

the Illinois Historic Preservation Agency addressed to

Mr. Keith McMullen, US Army Corps of Engineers, authored by a

Ms. Anne Haaker from the Illinois Historic Preservation

Agency in relation to the North Milam site.

HEARING OFFICER WEBB: And this relates to the testimony

that fell under the offer of proof offered by the Petitioner;

correct?

MR. MORAN: Yes.

HEARING OFFICER WEBB: Okay. Can I refer to this as WMI

MR. MORAN: WMII 1?

HEARING OFFICER WEBB: Yes.

MR. MORAN: That would be fine.

HEARING OFFICER WEBB: Okay. Okay. Do you have

anything further, Mr. Moran?

MR. MORAN: Nothing further.

HEARING OFFICER WEBB: Okay. Mr. Papa, would you like

to call a witness?

MR. PAPA: No witnesses, Your Honor. We would move for

the admission of City of Madison's Exhibits 1 and 2.

HEARING OFFICER WEBB: I have 2 in front of me. 1 was

the old --

MR. PAPA: The Ordinance 1248.

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HEARING OFFICER WEBB: Mr. Morrison, do you have an

objection to either of these Exhibits?

MR. MORRISON: No objection.

HEARING OFFICER WEBB: No objection. Then Exhibits 1

and 2 for the City of Madison are admitted. Do you have

anything further, Mr. Papa?

MR. PAPA: No, ma'am.

HEARING OFFICER WEBB: Okay. Is there anyone here who

would like to offer any public comments or testimony on

today's proceeding?

(No response.)

HEARING OFFICER WEBB: "No"? Okay. Before we hear any

closing arguments, let's go off the record to discuss the

briefing schedule.

(A brief discussion off the record.)

HEARING OFFICER WEBB: We've just had an off the record

discussion regarding post hearing briefs. The parties have

agreed to a briefing schedule as follows: The transcript of

these proceedings will be available from the Court Reporter

by August 28th and will be posted on the Board's web site.

Public comment headline is September 15th. Any public

comment must be filed in accordance with Section 101.628 of

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the Board's procedural rules. The Petitioners' brief is due

by September 18th. Respondents' briefs are due by October

9th. The Petitioners' reply, if any, is due by October 12th.

The mailbox rule will not apply, although parties may file

electronically. Mr. Morrison, would you like to make any

closings statement?

MR. MORRISON: No, Madam Hearing Officer. I'll have our

closing argument set forth in our post hearing brief.

HEARING OFFICER WEBB: Thank you. Mr. Moran, would you

like to make a closing statement?

MR. MORAN: No, thank you. We'll submit it in the

argument brief.

HEARING OFFICER WEBB: Mr. Papa, would you like to make

a closing statement?

MR. PAPA: The City will waive, as well.

HEARING OFFICER WEBB: Okay. Thank you very much. If

there are no members of the public here who wish to offer any

testimony or comments, I will proceed to make a statement as

to the credibility of the witness testifying during this

hearing. Based on my legal judgment and experience, I find

the witness testifying to be credible. At this time, I will

conclude the proceedings. We stand adjourned. And I thank

you all for your participation.

* * * * *

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STATE OF ILLINOIS )

)

COUNTY OF ST. CLAIR )

I, HOLLY A. McCULLOUGH, a Notary Public within and

for the County of St. Clair, State of Illinois, do HEREBY

CERTIFY that the foregoing record of hearing was made before

me on August 23, 2007, at the Madison County Administration

Building, County Board Room 203, 157 North Main Street,

Edwardsville, Illinois.

IN WITNESS WHEREOF, I have hereunto set my hand and

affixed my Notarial Seal the 24th day of August, 2007.

_____________________________

HOLLY A. McCULLOUGH

Notary Public

CSR #084-004265

RPR #821968

CCR #1011

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