ILLINOIS POLLUTION CONTROL BOARD
    June
    30,
    1988
    VILLAGE OF SAUGET,
    )
    Petitioner,
    v.
    )
    PCB 88—18
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    )
    Respondent.
    ORDER OF THE BOARD
    (by J. Marlin):
    On June 13,
    1988,
    the Illinois Environmental Protection
    Agency
    (Agency) filed
    a Motion for Leave
    to File Instanter
    a
    Supplement
    to the Agency’s Recommendation.
    The Village of Sauget
    (Sauget) filed a Response and a motion
    to file that Response
    instanter on June 27,
    1988.
    Sauget represents
    that the Agency
    has no objections
    to the instanter motion.
    The Board grants
    Sauget’s motion
    to file its
    Response.
    By its motion,
    the Agency
    is seeking
    to supplement its
    March
    2,
    1988 Recommendation with certain materials.
    First,
    the
    Agency
    is seeking
    to introduce discharge data which would update
    previously
    submitted data with effluent information as current as
    April,
    1988.
    Secondly,
    the agency provides
    a March,
    1988 report
    by the U.S.
    Environmental Protection Agency
    (USEPA)
    on the
    toxicity
    of Sauget’s
    discharge.
    In its Response, Sauget objects to the Agency’s submittal of
    the updated data.
    Sauget contends that
    it introduced at hearing
    “complete summaries of all available discharge data and from the
    commencement of operation of the AB American
    Bottoms
    Plant
    through May of 1988.”
    Sauget asserts that the data
    it submitted
    at hearings
    is more complete than that provided by the Agency.
    However,
    Sauget points out that for three data points concerning
    phenol levels,
    the Agency’s numbers are more accurate.
    Sauget
    also claims that three other figures presented by the Agency
    concerning pH and Mercury
    levels,
    are inaccurate.
    Next,
    Sauget contends that the USEPA toxicity report
    is
    irrelevant
    to this proceeding and would constitute hearsay
    because “Sauget has never had the opportunity
    to cross examine
    anyone on the accuracy,
    reliability,
    or authenticity
    of that
    report or
    its conclusions.”
    In summary, Sauget requests that the Board deny
    the Agency
    motion to supplement.
    90—493

    2
    In
    its Response,
    Sauget asserts
    it first received the
    Agency’s motion on June
    14,
    1988 just prior
    to the hearing
    in
    this matter.
    It
    is Sauget’s position
    that the Agency
    is
    attempting
    to supplement
    its Recommendation
    in an effort to
    present
    information
    to the Board without having
    to introduce
    evidence
    at hearing.
    The Agency presented
    no witnesses at
    hearing and introduced only one exhibit which contained data
    generated by
    a Sauget witness.
    This motion was filed with the Board on June 13th.
    Apparently,
    Sauget did not receive a copy of the motion until
    just before the hearing on June 14th.
    The most recent discharge
    data presented in the Agency’s supplement
    is from April,
    1988.
    In addition,
    the March 1988 USEPA Report
    is date—stamped
    as being
    received,
    presumably
    by the Agency Compliance Section, on March
    23,
    1988.
    The Board does not see why the Agency waited until
    June 13th before attempting
    to introduce this material
    into this
    record.
    The Board’s procedural
    rules
    for variance proceedings,
    found
    in
    35
    Ill.
    Adm. Code
    104,
    mandate
    the submission
    of an Agency
    Recommendation.
    Although this Recommendation shall include
    “allegations
    of...facts
    the Agency believes relevant
    to the
    disposition of the proceeding”
    (Section 104.180(3)), the
    procedural
    rules provide that the Recommendation
    be filed with
    the Board well in advance of the hearing.
    The Agency
    Recommendation is
    to
    be filed within
    30 days after
    the filing of
    a variance petition
    (Section 104.180(a)),
    and the hearing
    in
    a
    variance proceeding shall be held within
    60 days
    of the filing of
    a variance petition
    (Section 104.200(a)).
    This sequence of
    events
    is not accidental;
    it serves
    an important purpose.
    The
    Recommendation
    is required
    to be filed before the hearing so that
    the hearing may address issues of contention between the variance
    petitioner
    and the Agency.
    Section
    104.180(b) even states:
    Failure
    of
    the
    Agency
    to
    timely
    file
    its
    Recommendation
    shall
    be
    grounds
    for
    the
    Hearing Officer
    to
    adjourn the hearing
    to
    a
    date
    which
    will
    allow
    reasonable
    time
    to
    prepare.
    Although
    the procedural
    rules do not address
    the issue of
    the Agency amending
    or supplementing its Recommendation,
    it has
    been the practice of
    the Board
    to allow such action on
    a case by
    case determination.
    The Agency’s filing of its Motion to
    Supplement one day before the hearing certainly
    runs counter
    to
    the intent behind the Board’s procedural
    rules.
    Such
    a submittal
    does not give the petitioner much of
    an opportunity to prepare
    and present
    a substantive response at hearing.
    This
    in turn
    could force
    the necessity for another hearing.
    In short,
    the
    process does not work smoothly or efficiently when the Agency
    seeks
    to substantively alter
    its Recommendation one day before
    the hearing.
    Even though
    the Agency has merely sought
    to present
    90—494

    3
    additional information to support its March 2nd conclusion
    (that
    the variance be denied),
    the timing of the submittal was
    inappropriate.
    Notwithstanding these concerns,
    the Board will grant the
    Agency’s motion.
    Although there are apparently discrepancies between the
    Agency’s data and Sauget’s, the Agency claims
    in its motion that
    it is presenting updated data that was monitored and reported to
    the Agency by Sauget.
    Also,
    it appears from the Agency’s filing
    that the USEPA mailed its toxicity report to one of Sauget’s
    attorneys on April
    19,
    1988.
    (At that time,
    a copy was also
    apparently sent to the Agency attorney).
    Although all of this
    information had not earlier been introduced into this record,
    Sauget apparently did have knowledge of this information long
    before
    it was presented with the Agency’s June 13th motion.
    In
    addition,
    the Board
    finds that the materials contained in the
    Agency’s Supplement are relevant
    to this proceeding.
    The Board
    recognizes
    that this information was
    introduced without any
    opportunity for Sauget to cross—examine.
    Accordingly,
    it will be
    given the proper weight when the Board deliberates this matter.
    The Board will allow Sauget
    to file
    a response
    to the
    Agency’s Supplement.
    Such
    a response shall
    be filed with the
    Board no later than July 11,
    1988.
    If Sauget desires an
    additional hearing
    in this matter, the Board will consider any
    such request
    in the context
    of the decision deadline for this
    case.
    IT IS SO ORDERED.
    I, Dorothy M.
    Gunn, Clerk of
    the Illinois Pollution Control
    Board, hereby certify that the above Order was adopted on
    the
    ~i~~day
    of
    _______________,
    1988,
    by
    a vote
    of
    -7--c
    /•
    /~
    Dorothy M43unn, Clerk
    Illinois Pôllution Control Board
    90—495

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