ILLINOIS POLLUTION CONTROL BOARD

July

3,

1990

CITY OF BATAVIA,

Petitioner,

v.

)

PCB 89—183

(Variance)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

DISSENTING OPINION

(by J.D.

Dumelle):

Procedural History

The Board,

on its

own

motion,

struck from the record

materials which Mr. Forcade and

I submitted on June 12,

1990.

The materials we submitted

for consideration in this variance

proceeding consisted of updated data regarding the danger

-

or

lack thereof

—

of radium 226 and 228 present

in drinking water.

This data was sanctioned by the Agency and submitted

in the City

of Braidwood,

a very similar

case.

For whatever reason,

these

materials were not introduced by the Agency in the instant

matter.

Because

I thought

the materials highly relevant,

I

jointly requested that

the Clerk insert the updated materials

generated

by the Agency into the record with

full notice to the

parties.

The data being struck here by a bare majority are those

materials generated

by two highly reputable scientists,

Dr.

Toohey and Dr. Hallenbeck.

Thus the materials are not frivolous

or those which are of doubtful scientific and technical value.

On the contrary,

it

is strikingly obvious

that the materials are

pertinent

to

a decision and further,

that any additional

information regarding the health effects of

radium will only make

any determination by the Board more complete and therefore more

accurate.

I mention this

because the Board,

in granting its

own

motion,

fails

to state any reason

for its action.

In

fact,

the

participants

in this proceeding were notified on June

12, 1990,

and they have yet

to articulate any objection.

Accordingly,

it

would appear

that the Board struck

this material because they

deemed its introduction

to be procedurally improper

rather than

irrelevant.

Lecality of Board—introduced Evidence

113—27

---

—

Section 101.106(a)

states,

in pertinent

part:

Incorporation of Prior Proceedings

Upon the seoarate

t;rir ten reqiest

of any person or on

its own initiative,

the Board

or hearing officer may

incorporate materias

from the record of another Board

docket into any pr:ceeding.

The person seeking

incor~orat~onshall

ille with

the Board

four copies

of

the material

to he in:orporated.

The person seeking

incor~orationshall d~mcnstrate to the Board or

the

tiearing officer

that

the material

to be incorporated

is

reevant

to

the prnce-~d:ng.

Notice of

the request

shall

be given

to

all ident~fiedparticipants or parties by

the ~erso-

~eeking

i:

DrDoration.

(Emphasis added.)

The language here

is self—exr

-iatory.

And while

it would be

interesting

to debate whethe~

:~nyperson’1 inc1udes~áB~ard

member,

such an analysis

is

u

ecessary.

The Board had before

it

a motion to incorDorate the

renal

on its own initiative,

but

instead chose

to pursue

its c ~rse of action today.

Lest

the Board

need stron;er authority that

its own rules,

however,

it need only look

to

the Administrative Procedure Act

(APA)

.

Section 12(c)

of

the APA states:

In contested cases:

(c)Notice may be taken of matters of which

the

Circuit Courts

of

this State may take judicial

notice.

In addition, notice may be taken of

generally

recognized technical

or

scientific

facts within the Agency’s specialized

knowledge.

Parties shall be notified either

before or during the hearing,

or

by

reference

in preliminary reports or otherwise of

the

material noticed, including any staff

memorandums

or data,

and they shall

be

afforded an oPPortunity

to contest the

material

so noticed.

(Emphasis added.)

First,

the Hallenbeck

and Toohey materials do constitute

generally recognized technica.

or scientific

facts within the

Board’s specialized knowledge.

The study which

it updates has

been generally recognized by

the Board

for

the last five years,

since August

1985.

Moreover,

it

contains unrefuted technical and

scientific facts.

~chlle the

two experts differ as

to

their

conclusion,

that difference

accrues only as

a

result of

their

methods.

In other words,

the s~hstantivedata

is extremely

similiar,

but one expert discounts

a significant population

source

—

thereby arriving an dissimiliar conclusion.

fl

---

—3—

Second,

given the fact

that there were no hearings or

preliminary reports,

the question becomes whether

the parties

were otherwise noticed, and

if

so, were they afforded the

opportunity to contest

the material so noticed?

To this,

I can

only say that

the parties were noticed on June

12,

1990.

Three

weeks later neither side has objected,

commented,

or notified the

Board of any inclination whatsoever.

Had they done so

I would

have been happy to consider their comments.

It should be noted,

however,

that

I will not have

that opportunity

in that

the Board

struck

the material on

its own motion prior

to any objection from

either party,

and did

so without articulating any reason.

The aforementioned Section

12 of the

the APA was interpreted

by the appellate court

in Ecko Glaco Corp.

v.

IEPA,

542 N.E.2d

174

(1st

Dist.

1989).

In this case Ecko Glaco Corporation

contested evidence which was admitted by

the Agency.

Citing

Section 12(c)

of the APA,

the Appellate Court

found

the evidence

to be admissible

in that “notice may be taken of generally

recognized technical or

scientific facts within the Agency’s

specialized knowledge”.

Id.,

at

152.

Further,

the court found

import

in the fact

that Ecko Glaco never contested the truth of

the information contained

in the documents,

despite the fact that

it had the opportunity to rebut

the facts contained therein~~.

Ecko Glaco can be distinguished from the instant proceeding

in

that the material they objected to was submitted by the Agency.

But the court

in dicta, went beyond this distinction and stated:

Further,

the Act (APA) permits an administrative agency

to take official notice of facts which are properly

disclosed and put upon the record, and where the other

party has an opportunity

to be heard regarding the

propriety of taking notice of such facts.

Id.,

at 153

My interpretation of this language within the context

of

the

court’s decision leads me to two conclusions.

First,

the APA

grants an Agency which has special, highly technical knowledge

the ability

to utilize

that knowledge

in

the decision

—

making

process.

And second, more important than how that

information

is

placed

in the record

is that

the participants contesting

the

issue have the opportunity to

refute,

cross—examine, distinguish,

etc.

Indeed,

in reaching

its conclusion, the court

in Ecko Glaco

cited Caterpillar Tractor

v.

Pollution Control Board

48

Ill. App.

3d 655

(3rd

Dist.

1977).

In

this

case,

the Board denied

a

variance, and

in part

of its decision,

relied upon an EPA report

not contained within the record.

The court reversed the Board

stating

that

it was fundamental error

for

the Board

to consider

evidence which was not subject

to cross-examination.

The court

went on to state

that:

113—2~

---

4

In our view,

an administrative agency may take

official notice of facts known

to

it only when

such

facts

are disclosed and put upon the

record so as

to afford

a party of opportunity

to be heard.

48

Ill. App.

3d at 661—662.

The point

is clear:

It

is imperative

that the Board

enter

that which

it considers into the record as opposed to merely

referring to documents

in one case ~s being applicable

to another

matter being considered.

In

this way,

every

party has the

opportunity

to comment and due process

is satisfied.

Accordingly,

I disagree with the Board

‘s decision today.

Both parties

have had notice

of the Hallenbeck and Toohey

materials being placed

in

the record

for three weeks.

In

addition,

the Board

is clearly

a specialized agency.

If we were

the Circuit

CdiIrt,

therc we woül~~hb~bbè~äre

of thislipd~éd

study,

let alone

the original.

Yet

we are not

.

And the APA,

recognizing this

fact, makes provisions whereby we can utilize

our highly technical experience.

And because

the relevance of

this

information

is so

abundantly clear,

it remains my conclusion that

the Board voted

to strike this material

because

it was thought

to be

procedurally improper.

I strongly disagree.

Not only does the

APA indicate

that such

a move

is justified,

but the rules of the

Board clearly demonstrate that the admissibility of evidence

is

relaxed relative

to that which

is employed

in civil practice.

In my mind,

the clear language of Section 101.106(a)

of the

Board’s procedural

rules

in conjunction with Section

12(c)

of the

APA render the Board’s decision today ill-informed.

Administrative proceedings hearings which are quasi—judicial

in

nature are unique proceedings which often demand a certain

flexibility relative to the formal

rules of evidence.

Such

is

definitely the case here.

Rather

than relying

on

a

five—year old

study when the topic

at hand

is

the health and well—being

of our

citizens,

the Board should take advantage of

its expertise and

properly utilize

its

liberal

rules

as opposed

to being overly

literal, thereby excluding vital data.

For

the reasons stated herein,

I would have admitted these

materials

for consideration as part

of

the record.

Accordingly,

I

respectfully dissent.

I~)

J.D.

Dumelle

/

Board Member

/

1 13—3’~

---

—5--

I, Dorothy M. Gunn, hereby certify that the above Dissenting

Opinion was filed on the /61Z day of

~

,

1990.

~

~.

/L~~

Dorothy M.7Gunn, Clerk

Illinois Pollution Control Board

113—31