ILLINOIS POLLUTION CONTROL BOARD
    February 11,
    1988
    IN THE MATTER OF:
    PROPOSED AMENDMENT TO
    35 ILL. ADM. CODE
    212.209,
    )
    R 86—41
    VILLAGE OF WINNETKA
    GENERATING STATION
    ORDER OF THE BOARD
    (by J.
    Theodore Meyer):
    This matter
    is before
    the Board on
    a February 1, 1988 motion
    to reconsider leave
    to submit evidence deposition or
    to continue
    merit hearing,
    filed by John H.
    Leslie.
    Mr.
    Leslie
    is
    a citizen
    who objects to the proposed amendment to 35
    Ill. Adm. Code
    212.209.
    On February
    8, 1988 the Village of Winnetka
    filed
    its
    response
    in opposition
    to the motion.
    There was discussion about
    the motion at the February
    2,
    1988 merit hearing
    in this
    matter.
    (Feb.
    2,
    1988 transcript,
    pp.
    9—20.)
    The
    instant motion arises
    from a January 27,
    1988 Hearing
    Officer order which denied Mr. Leslie’s January 25,
    1988 motion
    for leave to submit
    the evidence deposition of Dr. Walter Lyons
    as evidence
    in this proceeding.
    That motion stated that Dr.
    Lyons, whose services as
    an expert witness have been obtained by
    Mr.
    Leslie, was unable
    to attend the February
    2 merit hearing.
    Thus,
    Mr.
    Leslie asked that the transcript
    of an evidence
    deposition of
    Dr.
    Lyons
    taken January 29,
    1988
    in Denver,
    Colorado,
    be allowed
    as evidence.
    The Hearing Officer denied
    that motion on January 27,
    1988, noting that:
    1)
    the Board’s
    procedural rules governing regulatory proceedings make no
    provision
    for depositions;
    (2)
    the deposition,
    to take place
    in
    Denver, Colorado, was noticed only four days before
    it was
    to
    take place; and
    3)
    since
    the date of the February
    2 hearing was
    agreed
    upon by all participants on December
    9,
    1987,
    but not
    officially noticed until December
    17,
    1987,
    there was sufficient
    time to determine whether Dr.
    Lyons was available
    for the
    February
    2 hearing.
    In sum, the Hearing Officer
    found that the
    circumstances surrounding
    the request did not protect the rights
    of the participants and the public
    to cross—examine Dr.
    Lyons,
    and denied the motion.
    That order did note that Dr. Lyons
    is
    free to submit post—hearing written comments during the comment
    period.
    The
    instant motion asks that the Hearing Officer’s order
    be
    reconsidered,
    or
    in the alternative,
    that an additional merit
    hearing be held
    to permit the direct testimony of Dr. Lyons.
    The
    motion contends that Dr.
    Lyons’
    testimony is very important to
    the record
    in this proceeding,
    because that testimony
    86—287
    —2—
    demonstrates that Winnetka’s modeling study may be seriously
    flawed.
    The Village of Winnetka objects
    to the instant motion,
    stating
    that full and fair opportunities for live testimony have
    been granted.
    Winnetka also notes that expert evidence may be
    submitted
    into the record during the written comment period.
    The Board will deny the motion.
    It
    is clear
    that allowing
    the submission of the evidence deposition into the record as
    evidence would not protect the right of the participants and the
    public
    to question Dr.
    Lyons,
    as
    is contemplated by the
    Environmental Protection ~ct and the Board’s procedural rules.
    Mr. Leslie’s request for
    a third merit hearing
    is also denied.
    The February
    2 hearing (the second hearing
    in this matter) was
    scheduled by agreement of all participants, and there was
    sufficient opportunity
    for Mr. Leslie
    to determine whether
    Dr. Lyons was available on that date.
    Mr.
    Leslie’s argument that
    Dr.
    Lyons was contractually obligated to be elsewhere on February
    2 does not change the fact that there was an opportunity to check
    the availability of the hearing date with
    Dr. Lyons before the
    hearing was officially noticed.
    It should be pointed out that
    the Board’s funds
    for regulatory and enforcement hearings have
    been exhausted for
    this fiscal year,
    and any further hearing
    in
    this case probably could not be held until July.
    Counsel
    for Mr.
    Leslie was aware of this situation when the February
    2 hearing
    was scheduled.
    The Board will not delay this proceeding.
    It
    is
    noted that
    if this proposal proceeds
    to first notice,
    the
    Administrative Procedure Act provides for
    a hearing during the
    first notice comment period, upon request.
    In denying this motion,
    the Board wishes to emphasize that
    Dr.
    Lyons’
    views need not remain outside the record.
    Dr. Lyons
    is free to submit written comments during the comment period
    which will
    be established by Hearing Officer order.
    IT IS SO ORDERED.
    R.
    Flemal was not present.
    I, Dorothy M. Gunn, Clerk
    of the Illinois Pollution Control
    Board, hereby certify that the above Order was adopted on
    the //~L day of
    _________________,
    1988,
    by
    a vote of
    C
    -O
    Dorothy
    M.
    unn, Clerk
    Illinois Pollution Control Board
    86—288

    Back to top