ILLINOIS POLLUTION CONTROL BOARD

August

4, 1988

IN THE MATTER OF:

PROPOSED AMENDMENTS TO

)

R87-6

PHOSPHORUS EFFLUENT STANDARD,

35 ILL. ADM. CODE 304.123

ORDER OF THE BOARD (by J. Anderson):

On June 27, 1988, the Environmental Protection Agency

(Agency) moved to exclude four exhibits, 45~~48,*presented by the

Department of Energy and Natural Resources (DENR) and admitted by

the Hearing Officer at the June 21, 1988 hearing conducted on the

Economic Impact Study. The exhibits contain written

correspondence from four individuals. On July 13, 1988, DENR

filed a response in opposition to the Agency’s motion.

None of the four persons, one of whom (Ex. 45) was a co-

author of the EcIS and had been scheduled to testify, were

present at hearing, and thus they neither presented sworn

testimony nor gave the Agency an opportunity to examine them.

The Agency argues that the rules of admissibility related to

enforcement proceedings apply and, under those rules, the pieces

of correspondence were not admissible as exhibits. DENR argues

that in regulatory proceedings the Board’s procedural rules allow

the hearing officer to exercise discretion concerning

admissibility, that the stricter rules of admissibility in

enforcement proceedings do not apply, and that objections go to

the weight given such evidence, not to admissibility.

This proceeding is governed by 35 Ill. Adrn. Code Part 102,

Regulatory and Other Non—adjudicative Hearings and Proceedings.

Part 102 contains no provisions binding the Hearing Officer to

the rules of admissibility found in

Part 103 Enforcement

Proceedings.

The issue is not one of admissibility but of the weight to

be given to the correspondence, and the Board will review the

record accordingly.

The Board also notes that it is not at all uncommon for a

great variety of documents to be admitted at the Board’s

information gathering regulatory hearings. At the same time, the

Board is quite sensitive to the Agency’s concerns in this

*

The correct exhibit numbers for the correspondence from persons

named are Ex. 45—48, not 46—49.

91—303

---

—2—

particular proceeding; due to unusual circumstances,

the

correspondence constituted a substantive and significant portion

of DENRts presentation at hearing.

The Agency also objected to the inclusion of material at the

June 7, 1988 hearing in Ex. 44 insofar as, on pages 6 and 8,

remarks attributed to an aquatic biologist of the Corps of

Engineers made it appear, incorrectly according to the Agency,

that it was an official statement on behalf of the Corps.

DENR

attempted, unsuccessfully,

to contact the aquatic biologist for

direct testimony.

Instead, DENR contacted three other

individuals, whose correspondence was admitted as Ex. 46, 47 and

48.

Since DENR did not clarify the Army Corps issue, the aquatic

biologist’s statements, while admitted, will be assumed to have

been made by an individual, not on behalf of the Corps.

For the foregoing reasons, the Hearing Officer’s ruling is

sustained and the Agency’s Motion to Exclude Exhibits is denied.

The Board notes that the Hearing Officer scheduled post—

hearing opening comments by the participants

to be due August 5,

and replies to be due August 19.

The Board is hereby

rescheduling those due dates to August 19 and September 2,

respectively.

IT IS SO ORDERED.

J. D. Durnelle dissented.

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

Board, hereby certify that the above Order was adopted on

the

I/ZZ

day of

______________,

1988, by a vote of

~

Dorothy

~

M. ~inn,

i~.

Clerk

Illinois Poflution Control Board

9 1—304