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

DISSENTING STATEMENT (by J.D. Dumelle):

I dissent from the majority Order dated August 4, 1988,

relating to the Motion to Exclude Exhibits filed by the Illinois

Environmental Protection Agency (Agency). For the reasons set

forth below, I would have specifically determined that the

documents submitted at hearing receive the same weight as the

Board attributes to “public comment.”

Each of the four documents, Exhibits 45—48, bear the title

“Statement by (name) For Presentation at the June 21, 1988

Economic Hearing of the Illinois Pollution Control Board Proposed

Amendments to Phosphorus Effluent Standard R87—6.” Exhibit 45 is

the statement of the principal author of all of the aquatic

biology sections in the Economic Impact Statement (EcIS) entitled

An Economic Analysis of Proposed Amendments to Water Pollution

Regulations Phosphorus Discharges, R87—6. For various reasons,

the author was unable to attend either the June 7, 1988 or the

June 21, 1988 hearing. The author states “tihis written

statement is an attempt to partially compensate for my absence

from the hearings.” Further, the author states that he

“attempted to address some of the issues that have developed in

the June 7, 1988 hearing and in the IEPA comments and BZ&C

Response which preceded it.” Exhibits 46—48 similarly consist of

statements directly related to matters in issue in this

proceeding

——

statements which also are written in the first

person and which closely resemble testimony.

These statements, exhibits 45—48, look very much like

“testimony” to me. However, the authors of these statements were

not sworn, nor were affidavits attached, nor were they even

present to submit their statements into the record

——

the

Department of Energy and Natural Resources (DENR) presented the

statements in support of its EcIS. Thus, the public (here the

Agency) was effectively precluded from challenging the substance

of these statements by cross—examination of the authors at

hearing. To me, this belies the very purpose of a public

hearing, which Professor David Currie summed—up well when he

stated the “the real utility of a public hearing lies in the

opportunity it can afford for exploring the

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

Board, hereby certify that the abov~Dissenting Statement was

submitted on the

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day of

____________________,

1988.

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Dorothy M.//~3unn, Clerk

Illinois ~fllution Control Board

Chairman

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