ILLINOIS POLLUTION CONTROL BOARD
October
6,
1988
VILLAGE OF SAUGET,
)
Petitioner,
)
v.
)
PCB 86—57
)
PCB 86—62
ILLINOIS ENVIRONMENTAL
)
(Consolidated)
PROTECTION AGENCY,
)
Respondent.
MONSANTO COMPANY,
Petitioner,
v.
)
PCB 86—58
PCB 86—63
ILLINOIS ENVIRONMENTAL
)
(Consolidated)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by
3. Anderson):
This matter arises on the Board’s own motion.
At the
previous Board meeting on September
22, 1988,
the Board adopted
an Order ruling on the Illinois Environmental Protection Agency’s
(Agency) motion to reverse ruling of Hearing Officer
filed
September
7,
1988.
At that time,
the Board recognized
that the
Village
of Sauget’s
(Sauget)
response to
the Agêncy motio~rwas
not yet due;
however,
the Board stated that “delay could
jeopardize the decision due date of December
1,
1988”.
The Board
then proceeded
to affirm the Hearing Officer’s
ruling,
thereby
denying the Agency’s motion by implication, and
to order
an
additional hearing
for the presentation of additional
evidence
and exhibits relevant to documents
and unwritten facts available
to the Agency and
in its possession prior
to the issuance of the
disputed permits.
On September
22, 1988,
after
the adjournment of the Board
meeting,
Sauget filed
its Response
to the Agency’s motion to
reverse ruling of Hearing Officer
and Motion
to reconsider.
On
October
3,
the Agency filed
a Response
to the motion
to
reconsider accompanied by
a motion
for leave
to file instanter,
which motion
is
hereby granted.
On October
5, Monsanto also
93—05
—2—
filed
a Motion for Reconsideration of
the Board’s
September
22
Order.
Based
on these filings,
the Board
today,
on
its own motion,
reconsiders the September 22,
1988, Order
and affirms
in part
and
reverses
in part.
As
a preliminary matter,
the Board notes that the reason
it
opted
to address the Agency’s motion on September
22, 1988,
before the response period had expired, was that
if the Board
were to ultimately determine that an additional hearing was
necessary,
the Board would have to order
it, schedule
it,
and
notice
it consistent with
a December
1,
1988 decision deadline.
The September
22,
1988, Board meeting was the only regularly
scheduled Board meeting date upon which the Board could satisfy
this objective.
The option of cancelling
the hearing,
if
a
hearing was ultimately determined
to be unwarranted, was always
available.
The Board affirms that portion of the September
22,
1988,
Order which upholds
the ruling of the Hearing Officer:
“the
Hearing
Officer
properly
excluded
testimony
and
exhibits
proffered
at
least
in
large
part
to
show
what
was
known
and
thought
by
the
U.S.
Environmental Protection Agency (USEPA) at the time
the
Agency
issued
the
permits
on
appeal.
What
information
was
in~
the
possession
of
USEPA
is
irrelevant.
This
record
should
exclusively
comprise
those
facts
in
the
possession
of
the
Agency on or before
the date
it issued
the disputed
permit.
.
.
However,
the Board reverses that portion of the September
22,
1988, Order that relates
to the scheduling of
an additional
hearing.
On September
22,
1988,
the Board stated:
“the
Agency’s
offer
of
proof
does
include
some
facts
which
may have
been available
to
the
Agency
at
the
time
of
the
permit
evaluation.
This
includes
both
documentary
evidence
....
and
testimonial
evidence
of
information
conveyed
by
USEPA
to
the
Agency
during
their
discussions
concerning
the Agency
adoption of
the February 14,
1988 USEPA recommendations.
The
Hearing
Officer
shall
promptly
notice
and
conduct
an
additional
hearing
in
this
matter
for
the
Agency
presentation
and
petitioner’s
rebuttal
of
additional
evidence
and
exhibits
relevant
to
documentary and unwritten
facts available
to the
93—06
—3—
Agency and
in
its possession prior
to
the issuance
of the disputed permits.”
In
its offer
of proof
and
in its Motion
to overrule the
Hearing Officer,
the Agency requested
the admission of certain
documents relied upon by USEPA
to support the
imposition of the
contested conditions.
The Agency also requested the admission of
testimony
of witnesses external
to the Agency to support the
“genesis and evolution of necessary conditions
for the Sauget
Permit(s)”.
Agency motion at
11.
It was within this context,
i.e., within the offer
of proof,
that it became apparent
to the
Board that certain of the documents relied upon by USEPA may also
have been
in the possession of the Agency.
Without knowing more
and with a desire to obtain
the “true”
record, the Board ordered
the additional hearing
to address the documents described in the
quoted passage above.
In its response, however,
Sauget explained that the Agency
was given
ample opportunity
to seek the admission of these
documents
independent of
the offer
of proof.
In
fact,
after
the
Agency sought admission of these documents during the course of
the offer
of proof,
Sauget specifically objected
and advised the
Agency that its offer
of proof may have been overbroad.
See,
R.
916—917.
Sauget states that
it “purposefully and
intentionally”
called
the Agency’s attention
to this point so that if the Agency
deemed it
appropriate,
it could have sought the admission of
evidence not subject
to the hearing officer’s ruling.
(Sauget
response at
4).
The Agency, however, decided
to do nothing with
respect
to this
issue, apparently deciding
to let its strategy
stand or
fall on review.
With respect
to the law regarding offers of proof,
Sauget
cites ample authority for the proposition that
“if several facts
are included
in the offer,
some admissible and other
inadmissible,
the whole
(if properly objected
to)
is
inadmissible;
in other words,
it
is for the proponent to sever
the good and bad parts”.
(1 Wigmore, Evidence,Section
17.
(Tiller’s
rev.
1983)
pp.
788—789,
and see also Over
v.
Schiffling,
102 md.
191,
26 N.E.
91,
92
(1985)).
Applying this
proposition
to the facts of
this case,
Sauget argues that the
Agency took
the risk in offering most of its case as
an offer
of
proof.
(Sauget response
at
3).
In its October
3 response,
the Agency does not address
Sauget’s offer
of proof argument.
The Agency instead offers
a
policy argument rather than
a legal argument:
When
the Board
sits in
review of an Agency
permit,
it
must
consider
whether
the Agency’s decision
is
correct
based
on
the
information
submitted
to the
Agency.
Included
in that review
is the correctness
of
the documents
included
in
the
record,
not
just
93—07
—4—
in
scope,
but
in
the
foundation
for
the
material
statements included
in the documents.
In
the
past,
commentators,
whether
public
or
federal,
have
not
been required
to
annotate
their
comments
to
the
Agency.
If
the
ruling
of
the
Hearing Officer
stands,
then any submission
to the
Agency
must
stand
on
its
own,
without
an
opportunity
to
review
the
foundation
of
the
comment.
Of course,
prior
review could have been afforded
if
a
hearing
were
requested
by
Petitioner
between
receipt
of
the
comment
letter
and
permit
issuance.
Agency Response,
Para.
4—6.
The essence
of the Agency’s argument appears
to be that the
burden of
insuring
tha’c the Agency compiles
a complete record
concerning conditions
it may or may not choose
to include in
a
permit based on written comments should be imposed
on the permit
applicant,
who should request
a hearing,
according to the
Agency’s view,
to avoid burdening the commenter with the
requirement of
explaining the basis
for
a comment.
It would then
logically follow that all permit applicants would
need
to request
a pre—issuance hearing
in every case to protect rights
to appeal
a hypothetically possible condition,
a result which would
increase the administrative burden on the Agency and the
applicant alike.
The Agency further argues that
Choice
of
special
conditions
by
the
Agency
is
founded
upon more
than
the application,
using
data
generated by
its
inspectors,
analysis, professional
publications
and
research,
and
most
importantly
comments
submitted
by
the
public
or
USEPA.
The
Agency’s
choice
of
which
data
is
rely
oh
or
not
rely
on
is
based
upon
the
reliability
of
the
comment.
Board review of the Agency’s reliance can
only
be
had
if
the
Board
makes
a
finding
of
reliability
which
would
require
scrutiny
of
the
excluded
basis
documents
and
testimony.
Agency
Response, Para.
4—6,12.
The Board does noc question that the choice of which data
to
rely on
is based on the reliability
of
the comment, but
a
decision concerning
the reliability of the comment cannot be
later rationalized by introduction of information which was not
in the Agency’s possession
at the time of
its decision.
See e.g.
Waste Management
v.
IEPA, PCB 84—45,61,68
(consolidated),
October
1 and November
26, 1984,
aff’d.
sub nom.
IEPA v.
IPCB 138
Ill.
App.
3d
550,
486 N.E.
2d
293
(3rd Dist.
1985), 115
111.
2d
65,
93—08
—5—
503 N.E.
2d
343
(1986)
and
(excluding from the record
a study
produced after
the Agency’s permitting decision).
The Board notes that Monsanto
(Motion,
p.
3) has cited Waste
Management
as one standing “unequivocally for
the proposition
that the Board’s review
is limited
to matters actually considered
by the Agency and certified
as part of the record”
(emphasis
added).
This
is not entirely correct; Board review
is limited
to
information in the Agency’s possession which it actually or
reasonably should have considered
(i.e.,
in that case, monitoring
data
in the Agency’s possession contradicting earlier monitoring
data which did not come
to the attention of Agency
decisionmakers).
The Board
is persuaded that,
based upon the facts
of this
case and upon the law regarding offers
of proof,
the documents
relied upon by USEPA and sought
to
be admitted by the Agency in
its offer
of proof cannot be made part
of the record by this
method.
Thus,
because
the Board’s awareness of the existence
of
these documents
is
founded solely on the offer
of proof,
and
because that offer
of proof has been denied,
the Board
is
precluded from ordering an additional hearing to address
the
relevance and availability of
these documents.
The Board,
therefore, reverses that portion of the September
22,
1988, Order
which relates
to an additional hearing.
The Hearing Officer
is
directed
to cancel any hearing scheduled as
a result
of that
order and
is further directed
to complete the briefing schedule
process
as originally sáheduled or as he deems necessary.
IT IS SO ORDERED.
B.
Forcade dissented.
I, Dorothy M.
Gunn, Clerk
of the Illinois Pollution Control
Board, hereby certify that the above Order was adopted on
the
_______________
day
of
~
,1988,
by a vote
of
Dorothy M. ,~unn,Clerk
Illinois Pollution Control
93—~9