ILLINOIS POLLUTION CONTROL BOARD
    September 7,
    1978
    ENVIRONMENTAL
    PROTECTION
    AGENCY,
    )
    )
    Complainant,
    )
    v.
    )
    PCB
    75—112
    )
    METROPOLITAN
    SANITARY
    DISTRICT
    OF
    )
    GREATER
    CHICAGO,
    )
    Respondent.
    ORDER
    OF
    THE
    BOARD
    (by
    Mr.
    Goodman):
    On
    August
    24,
    1978,
    the
    Environmental
    Protection
    Agency
    (Agency)
    filed
    a
    Motion
    for
    Leave
    to
    Take
    Interlocutory
    Appeal
    and an Interlocutory Motion to Reverse Hearing Officer.
    On
    August
    30,
    1978,
    the Metropolitan Sanitary District of Greater
    Chicago
    (MSD)
    submitted a Response to Complainant’s Motion to
    Reverse Hearing Officer,
    in which MSD stated it did not oppose
    the Agency’s Motion for Leave
    to Take Interlocutory Appeal but
    did oppose reversal of the Hearing Officer.
    The
    Board
    hereby
    grants
    the
    Agency
    leave
    to
    take
    the
    interlocutory
    appeal.
    The
    ruling
    in
    question
    involves
    the
    admissibility
    into
    evidence
    of
    events
    subsequent
    to
    the
    filing
    of
    the
    Complaint
    in
    this
    matter.
    The
    Board
    on
    August
    18,
    1977,
    ordered
    that
    evidence
    of
    all
    events
    subsequent
    to
    the
    filing
    of
    the
    Complaint
    be
    received
    as
    an
    offer
    of
    proof.
    The
    Agency,
    therefore,
    submitted
    its
    evidence
    on
    events
    subsequent
    to
    the
    filing
    of
    the
    Complaint
    as
    an
    offer
    of
    proof.
    Such
    evidence
    consisted of testimony by “occurrence” witnesses about odors
    which may .have emanated from MSD’s property after the date of
    the Complaint.
    However, on August 16,
    17 and 18, 1978,
    the
    Hearing Officer received into evidence testimony on behalf of
    the MSD relating to the post—Complaint time period.
    The Hearing
    Officer did not require such evidence to be submitted as an
    offer
    of
    proof,
    and
    it
    is
    this
    ruling
    by
    the
    Hearing
    Officer
    which
    the
    Agency
    seeks
    to reverse.
    MSD points out that it
    offered the evidence in question in its defense pursuant to
    Section 33(c)
    of the Environmental Protection Act (Act).
    31—349
    —2
    The Board hereby upholds the Hearing Officer’s ruling.
    We
    find that evidence of post-Complaint events submitted for the
    purpose of mitigation under Section 33(c),
    as opposed to
    evidence submitted for the purpose of proving a violation after
    the date alleged in the Complaint,
    need not be submitted as
    an
    offer of proof.
    The Board notes that any evidence submitted
    by the Agency as an offer of proof which bears on the Section
    33(c)
    factors will be considered by the Board in making its
    final
    determination.
    IT
    IS
    SO
    ORDERED.
    Mr. Dumelle abstained.
    I, Christan
    L. Moffett, Clerk of the Illinois Pollution
    Control Board, hereby
    ertify the above Order was adopted on
    the
    ~
    day
    ~
    1978
    by
    a
    vote
    of
    3.~
    Christan
    L.
    of~t,
    Clerk
    Illinois Pollution Control Board
    ~1—35~

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