ILLINOIS POLLUTION CONTROL BOARD

January 19,

1989

KENNETH

K.

GETTY,

Complainant,

and

EDWIN and SUE KOZOYED, ET AL.,

Intervenors,

v.

)

PCB 86—181

VILLAGE OF RIVERSIDE,

Respondent.

ORDER OF THE BOARD

(by

B.

Forcade):

The Village

of Riverside (“Riverside”)

filed

a December

15,

1988 motion

to strike the December

13,

1988 post—hearing reply

brief of the Intervenors.

The Intervenors

responded

to the

motion on December

23,

1988.

That motion raises two bases

for

striking the brief.

First, Riverside asserts that the Intervenors waived their

right

to challenge certain evidentiary rulings of

the hearing

officer when they failed

to “immediately come before this Board

for clarification.”

Motion

to Strike at

2.

Riverside asserts

that

it

is improper

to obtain review of evidentiary rulings and

plead matters

in

a reply brief

that

a petitioning party omitted

from

its initial post—hearing brief.

The Board agrees with the

Intervenors:

“It

is

in fact common Board procedure to review

evidentiary and procedural

rulings, especially where review

is

specifically requested, with its consideration of

the substantive

issues

in the case.”

Response

to Motion at

1.

Initially,

the Board notes that this issue

largely involves

evidence admitted by the hearing officer over objection.

This

is

distinguishable

from

a situation where a party seeks

to upset

a

hearing officer exclusion of evidence.

Where

a party seeks

to

have the Board overturn an evidentiary exclusion,

that party must

act promptly.

~t hearing, an offer of proof

is necessary

whenever the substance and character of the evidence

is not

apparent from the record.

See People

v.

Hoffee,

354

Ill.

123,

188 N.E. 186

(1933) and Schusler

v.

Fletcher,

74

Ill. App.

2d

249,

219 N.E.2d 588

(1966).

The Board

in many cases

is subject

to severe time constraints.

In such cases,

a hearing officer’s

decision to exclude evidence,

if subsequently overturned by the

95—2~9

---

—2—

Board, could

result

in the matter being remanded

for addition

hearings under unacceptably short time frames or

in the

expiration of statutory deadlines for Board action

(e.g.,

Section

40(a)(2)

of the Act).

This

is not at issue here.

Where the

evidence

is part of the record,

and

the challenging party has had

an opportunity to cross—examine or

rebut that evidence,

the need

for prompt action

is not as acute, and the chance of creating

prejudice and undue delay is not as great.

The Board must remain free

in its final disposition of

a

proceeding

to strike or disregard objectionable evidence admitted

at hearing.

The proper

function of

a brief

is to present

arguments regarding facts adduced at hearing, and

this would

necessarily include arguments as

to the weight and effect the

Board should give particular

items of evidence.

A motion

to

strike

an exhibit or testimony is tantamount

to a formal

request

to thoroughly disregard such.

Finally, the Board observes

that the arguments in

Intervenors’ September 30,

1988 post—hearing brief

arid

Riverside’s

November

10,

1988 response brief both make citation

or

reference

to nearly all

items involved

in the Intervenors’

December

13,

1988 reply brief.

This is notwithstanding

the

consistency

or inconsistency of the arguments relating

to

those

items.

Since

the

Intervenors’

December

13 motion

for Board

ruling

thus did not,

in fact,

raise new matters, Riverside was

not prejudiced.

Second,

Riverside asserts

that the Intervenors’ reply brief

“contains

improper, prejudicial and scandalous matter, calculated

to prejudice this Board against

(Riverside.”

Motion

to Strike

at

2.

Riverside cites

four examples of such matter.

Two

exa~nplesare arguments regarding

the weight the Board should

attach

to particular

evidence.

In view of the foregoing

discussion,

the

Board disagrees with Riverside’s conclusions as

to the nature of these arguments

as “improper,

prejudicial and

scandalous matter.”

Two other

examples address arguments relating

to

the quality

of the parties’

conduct through

this proceeding and outside the

public hearings.

These example arguments also involve assertions

of

facts not a part of

the

record.

Since

these arguments involve

facts

not of record,

the Board will grant

the motion to strike as

it pertains

to these

facts.

The Board will strike the facts

asserted by counsel

for the Intervenors at paragraph

9 on pages

17 and

18, including footnote

9 of Intervenors’

Reply Brief.

The

Board will not physically remove

the improper portions of the

brief,

so as

to maintain the record

for any appeal.

Riverside’s

motion

to strike

is hereby denied

in part and

granted

in part.

Paragraph numbered

9 on pages

17 through

18 of

Intervenors’ Reply Brief

is hereby stricken

in its entirety.

The

95—270

---

—3-.

Board will reserve all

issues relating

to the weight

and effect

to be given evidence for

its final disposition of this matter.

IT IS SO ORDERED

I,

Dorothy

M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Order was adopted on

the

/‘1?L

day of

~

,

1989, by a vote

of

7-~

.

C,

~.

•‘~*4~

1~orothyMIGunn, Clerk

Illinois Pollution Control Board

95—271