ILLINOIS POLLUTION CONTROL BOARD

October 1, 1987

BILL ADEN, JOHN SCHRODER,

VELMA

SCHRODERI

JOE

KENDALL,

)

LAMORN MORRIS, et al.,

Complainants,

v.

)

PCB 86—193

CITY OF FREEPORT,

Respondent.

ORDER OF THE BOARD (by J. Marlin):

This matter comes before the Board on a motion filed by the

City of Freeport (Freeport) on September 14, 1987. On September

23, 1987, Complainants other than Bill Aden and Joe Kendall

(Responding Complainants), filed a Response to Freeport’s motion.

Freeport filed its motion in response to the Board’s Order

of September 14, 1987 which granted an earlier motion by

Complainants to include a letter (Mulcahey letter), written by

Representative Richard T. Mulcahey, in the record of this

proceeding. In that Order, the Board also directed the Hearing

Officer to schedule another hearing in this matter in order to

afford Freeport ~trights ot cross—examination concerning the

contents of the Mulcahey letter”. Freeport now asserts in its

motion that it “waives its right to cross—examine Representative

Mulcahey with regard to his Mulcahey letter or the subject

matter thereof”. As a consequence, Freeport requests that the

Board not schedule any further hearings in this matter and that

tfle Board decide the case based upon the record of the original

hearing and the Mulcahey letter.

In its Response, the Responding Complainants, argue that the

Board should reject Freeport’s motion to waive the second hearing

and that the Board, by Order, should delineate particular issues

to be addressed at the second hearing. The Responding

Complainants wish to present evidence at a second hearing

concerning the following issues: an alleged sanitary sewer

overflow event on August 26, 1987; the availability of Build

Illinois funds for sewer improvements; Freeport’s efforts to fund

sewer improvements; and the time frame for implementing any

improvements.

A hearing was held in this matter on June 23, 1987.

According to the Complainants, 20 witnesses testified on the

Complainant’s behalf. (Complainant’s Brief,

p.

3). Freeport and

the Complainants filed their post—hearing briefs of August 17 and

18, respectively. In its Order of September 4, tne Board

82—23

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directed that a second hearing be held for the sole purpose of

affording Freeport an opportunity for cross—examination of the

contents of the Mulcahey letter. Now, Freeport declines to

utilize this opportunity. As a result, the purpose for this

second hearing no longer exists.

It was never the intent of the Board to schedule a second

hearing to allow the further development of other issues. The

Responding Complainants had the opportunity to present evidence

at. the June 23 hearing. Although now currently represented by

counsel, the Responding Complainants participated pro se as

Complainants at hearing. The Board is not aware of any

circumstances

that

denied the Complainants an opportunity to

fully present their case on June 23. In short, the Complainants,

which include the Responding Complainants, have had their “day in

court”. Freeport’s motion is granted and the Responding

Complainants’ motion is denied.

The Board hereby directs the Hearing Officer not to schedule

a second hearing in this matter. The Board considers the record

now closed.

The Board wishes to address another issue presented by the

recent filings. In its Motion, Freeport claims that the Board’s

September 4 Order

by implication finds that Representative

Mulcahey’s statements contained in the

tlulcahey letter) regarding the condition of

the sanitary sewer are not to be considered

by it the Board since Representative

Mulcahey could have given that evidence, if

admissible, at the

original hearing.

The Responding Complainants object to this characterization. The

Board concurs with the Responding Complainants’ position. In its

September 4 Order, the Board neither expressly nor implicitly

found tnat it could not consider certain portions of the Mulcahey

letter. Having admitted the letter into the record, the Board

will consider it in total while properly weighing its import.

Recent filings indicate that Sidney Margolis and James Gitz,

of Rudnick & wolfe, are counsel for all Complainants other than

Bill Aden and Joe Kendall. Although they are not represented by

an attorney, Bill Aden and Joe Kendall are still complainants to

this proceeding.

IT IS SO ORDERED.

B. Forcade dissented.

M. Nardulli abstained.

82—24

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3

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was

adopted on the /‘~l’ day of

________________,

l9b7, by a vote

of

~/

.

-

Dorothy M. Gdnn, Clerk

Illinois Pollution Control Board