ILLINOIS POLLUTION CONTROL
BOARD
September 17,
1992
GOOSE
LAKE
ASSOCIATION,
)
)
Complainant,
v.
)
PCB 90—170
~nforcement)
ROBERT J.
DRAKE,
SR., and
FIRST BANK OF JOLIET as
TRUSTEE, Trust No. 370,
Respondents.
ORDER OF THE BOARD
(by J. Anderson):
Currently before the Board are the following two motions:
1)
an August 17,
1992 motion to reopen proofs or to supplement
proofs filed by Goose Lake Association
(Association) and
2) an
August 25,
1992 motion for an extension of time to respond to the
Association’s motion filed by Robert J.
Drake,
Sr. and the First
Bank of Joliet as Trustee, Trust No. 370
(respondents).
Respondents’ Motion for Extension of Time
In its motion for extension of time, respondents ask the
Board to grant them a 25-day extension in which to file a
response to the Association’s motion.
In support of their
motion, respondents stated that the extension is necessary
because their attorney would be out of state until August 24,
1992, and because considerable investigation would have to be
done before a response could be formulated.
On August 28, 1992,
respondents filed their response to the
Association’s motion.
As a result, respondents’ request for a
25—day extension is moot.
Association’s Motion to Reopen Proofs
As previously stated, on August 17,
1992, the Association
filed its motion to reopen proofs.
The Association also filed
the affidavit of Mr. James W. Holman with its motion.
On August
28,
1992, respondents filed a response to the Association’s
motion.
On August 31,
1992,
the Association filed a reply to
respondents’ response.
Attached to the reply is some of the
evidence that the Association wishes to have introduced into the
record in this case.
In it motion to reopen, the Association asks that the Board
allow it to submit aerial photos and letter opinions or,
in the
alternative, reopen the proofs in this case so that the
Association can submit the new information and allow respondents
0136-0007
2
the opportunity for cross—examination.
In support of its motion,
the Association states that,
in the last month, it has come into
the possession of aerial photographs and a description and
interpretation of the photos by Mr. Mike Vice of the United
States Department of Agriculture (Department) which were
previously in the possession of the Department and thus,_not
ä~ilabletoth
ià~iatioñ~Thé1~àoãii?ionargues that the
new information would materially aid the Board in determining the
natural drainage of the property at issue and the appropriateness
of the individual sanitary system applications to the property.
More specifically, the Association argues that the new
information substantiates its position that a substantial portion
to the property would drain in a west-southwesterly direction
rather than north to the lake.
In fact, the Association notes
that the new information has caused its civil engineer, Mr. Don
Eddy,
to modify his opinion regarding the flow of the natural
drainage water on the property at issue.
As for the affidavit attached to the Association’s motion,
Mr. Holman, a
member
of the Association, states that he and other
Association members subpoenaed and requested, pursuant to the
Illinois Freedom of Information Act, all documents relating to
the natural drainage or water flow from the property in question.
He also states that,
on July 30,
1992,
Mr. Vice provided the
Association with the aerial photographs after he attended an
Association meeting that related to pollution and drainage
problems within the Association’s properties.
Mr. Holman adds
that at no time prior to or directly after the hearing was the
Association aware of the Department possessing, at the Grundy
County Soil and Water Conservation District, the aerial
photographs.
In response, respondents first argue that 35 Ill.
Adm.
Code
103.202 does not provide for the reopening or supplementing of
proofs following the conclusion of a hearing.
Respondents also
argue that, even if the Board’s regulations allowed for the
reopening of proofs, the Association had more than 16 months to
prepare its case for hearing and the documents at issue were
available at the time the Association filed its complaint and at
the time of hearing.
Respondents add that the documents are not
relevant in this case because no issue was raised in the
complaint or at hearing regarding the direction of flow of
surface waters from the property at issue.
Rather, respondents
note that the Association,
in its complaint, alleged only
that
the operation of private sewage disposal syatsas in the property
would cause pollution to the adjoining lake because of the soil
types
and
ground
water level within the
property.
Respondents
add that the new evidence would be relevant only to an allegation
that the developers of the property in question had altered the
drainage of surface waters on the property and that such an
allegation would be the subject of a civil suit rather than a
complaint before the Board.
Finally, respondents argue that the
0
I 36-0008
3
letters which the Association seeks to introduce are hearsay
declarations and that due process requires that they be allowed
the opportunity to cross examine any witnesses called by the
Association.
At the outset, the Board notes that 35 Iii.
Adm. Code
1~(~iEóvidés ~thátiiià~ing par~shall not have the right
to reply except as permitted by the Board to prevent material
prejudice.
In the instant case, the Association’s reply is not
accompanied by a motion for leave to file the reply.
Moreover,
a
review of the reply indicates that, other than copies of the
documents at issue,
it is simply a restatement of the information
that is contained in the Association’s initial motion.
Accordingly, the Board hereby strikes the Association’s reply
based upon the fact that its admission is not necessary to
prevent material prejudice.
35 Ill. Adm. Code 103.202, entitled “Order of Enforcement
Hearings”,
does not provide for the reopening or supplementing of
proofs following the conclusion of a hearing.
35 Ill. Adm. Code
103.241(b) (1), however, provides that the Board may relieve a
party from a final order for newly discovered evidence which by
due diligence could not have been timely discovered.
Although we
recognize that a final order has not yet been entered in this
matter, an argument can be made that the “due diligence” standard
should apply in situations where new evidence is presented after
the hearing has been held and post-hearing briefs have been
filed,
but before a final order has been written.
If such were
not the case, parties conceivably could continue a matter
indefinitely via attempts to present “newly discovered” evidence
that was already in existence at the time of hearing but not
discovered.
In the situation at hand, the documents that the Association
seeks to introduce were in existence at the time of hearing.
We
cannot say that it would have been unreasonable to have expected
the Association to have contacted such departments as the Grundy
County Soil and Water Conservation District, or the Departments
of Agriculture, Conservation, Public Health,
etc. in an attempt
to obtain information.
As respondents correctly point out, the
Association had more than 16 months to prepare its case for
hearing and the documents at issue were available at the time the
Association filed its complaint and at the time of hearing.
Accordingly, the Board hereby denies the Association’s motion.
IT IS SO ORDERED.
0136-0009
4
I, Dorothy M.
Gunn, Clerk of the flhinois Pollution Control
Boa~d,hereby certify that on the
I 7~
day of
___________________,
1992, the above order was adopted by a
vote/ of
~7
-
.
~orothy
‘i~
Gunn,’ Clerk
flIói~flutio~.ontrol Board
0 136-00
10