ILLINOIS POLLUTION CONTROL BOARD
June
30,
1988
VILLAGE OF SAUGET,
)
Petitioner,
v.
)
PCB 88—18
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by J. Marlin):
On June 13,
1988,
the Illinois Environmental Protection
Agency
(Agency) filed
a Motion for Leave
to File Instanter
a
Supplement
to the Agency’s Recommendation.
The Village of Sauget
(Sauget) filed a Response and a motion
to file that Response
instanter on June 27,
1988.
Sauget represents
that the Agency
has no objections
to the instanter motion.
The Board grants
Sauget’s motion
to file its
Response.
By its motion,
the Agency
is seeking
to supplement its
March
2,
1988 Recommendation with certain materials.
First,
the
Agency
is seeking
to introduce discharge data which would update
previously
submitted data with effluent information as current as
April,
1988.
Secondly,
the agency provides
a March,
1988 report
by the U.S.
Environmental Protection Agency
(USEPA)
on the
toxicity
of Sauget’s
discharge.
In its Response, Sauget objects to the Agency’s submittal of
the updated data.
Sauget contends that
it introduced at hearing
“complete summaries of all available discharge data and from the
commencement of operation of the AB American
Bottoms
Plant
through May of 1988.”
Sauget asserts that the data
it submitted
at hearings
is more complete than that provided by the Agency.
However,
Sauget points out that for three data points concerning
phenol levels,
the Agency’s numbers are more accurate.
Sauget
also claims that three other figures presented by the Agency
concerning pH and Mercury
levels,
are inaccurate.
Next,
Sauget contends that the USEPA toxicity report
is
irrelevant
to this proceeding and would constitute hearsay
because “Sauget has never had the opportunity
to cross examine
anyone on the accuracy,
reliability,
or authenticity
of that
report or
its conclusions.”
In summary, Sauget requests that the Board deny
the Agency
motion to supplement.
90—493
2
In
its Response,
Sauget asserts
it first received the
Agency’s motion on June
14,
1988 just prior
to the hearing
in
this matter.
It
is Sauget’s position
that the Agency
is
attempting
to supplement
its Recommendation
in an effort to
present
information
to the Board without having
to introduce
evidence
at hearing.
The Agency presented
no witnesses at
hearing and introduced only one exhibit which contained data
generated by
a Sauget witness.
This motion was filed with the Board on June 13th.
Apparently,
Sauget did not receive a copy of the motion until
just before the hearing on June 14th.
The most recent discharge
data presented in the Agency’s supplement
is from April,
1988.
In addition,
the March 1988 USEPA Report
is date—stamped
as being
received,
presumably
by the Agency Compliance Section, on March
23,
1988.
The Board does not see why the Agency waited until
June 13th before attempting
to introduce this material
into this
record.
The Board’s procedural
rules
for variance proceedings,
found
in
35
Ill.
Adm. Code
104,
mandate
the submission
of an Agency
Recommendation.
Although this Recommendation shall include
“allegations
of...facts
the Agency believes relevant
to the
disposition of the proceeding”
(Section 104.180(3)), the
procedural
rules provide that the Recommendation
be filed with
the Board well in advance of the hearing.
The Agency
Recommendation is
to
be filed within
30 days after
the filing of
a variance petition
(Section 104.180(a)),
and the hearing
in
a
variance proceeding shall be held within
60 days
of the filing of
a variance petition
(Section 104.200(a)).
This sequence of
events
is not accidental;
it serves
an important purpose.
The
Recommendation
is required
to be filed before the hearing so that
the hearing may address issues of contention between the variance
petitioner
and the Agency.
Section
104.180(b) even states:
Failure
of
the
Agency
to
timely
file
its
Recommendation
shall
be
grounds
for
the
Hearing Officer
to
adjourn the hearing
to
a
date
which
will
allow
reasonable
time
to
prepare.
Although
the procedural
rules do not address
the issue of
the Agency amending
or supplementing its Recommendation,
it has
been the practice of
the Board
to allow such action on
a case by
case determination.
The Agency’s filing of its Motion to
Supplement one day before the hearing certainly
runs counter
to
the intent behind the Board’s procedural
rules.
Such
a submittal
does not give the petitioner much of
an opportunity to prepare
and present
a substantive response at hearing.
This
in turn
could force
the necessity for another hearing.
In short,
the
process does not work smoothly or efficiently when the Agency
seeks
to substantively alter
its Recommendation one day before
the hearing.
Even though
the Agency has merely sought
to present
90—494
3
additional information to support its March 2nd conclusion
(that
the variance be denied),
the timing of the submittal was
inappropriate.
Notwithstanding these concerns,
the Board will grant the
Agency’s motion.
Although there are apparently discrepancies between the
Agency’s data and Sauget’s, the Agency claims
in its motion that
it is presenting updated data that was monitored and reported to
the Agency by Sauget.
Also,
it appears from the Agency’s filing
that the USEPA mailed its toxicity report to one of Sauget’s
attorneys on April
19,
1988.
(At that time,
a copy was also
apparently sent to the Agency attorney).
Although all of this
information had not earlier been introduced into this record,
Sauget apparently did have knowledge of this information long
before
it was presented with the Agency’s June 13th motion.
In
addition,
the Board
finds that the materials contained in the
Agency’s Supplement are relevant
to this proceeding.
The Board
recognizes
that this information was
introduced without any
opportunity for Sauget to cross—examine.
Accordingly,
it will be
given the proper weight when the Board deliberates this matter.
The Board will allow Sauget
to file
a response
to the
Agency’s Supplement.
Such
a response shall
be filed with the
Board no later than July 11,
1988.
If Sauget desires an
additional hearing
in this matter, the Board will consider any
such request
in the context
of the decision deadline for this
case.
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
~i~~day
of
_______________,
1988,
by
a vote
of
-7--c
/•
/~
Dorothy M43unn, Clerk
Illinois Pôllution Control Board
90—495