ILLINOIS POLLUTION CONTROL BOARD
May 9, 1986
MODINE MANUFACTURING
)
COMPANY,
Petitioner,
v.
)
PCB 85—154
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE
BOARD
(by B. Forcade):
This matter comes
to the Board
on
an April 21,
1986 request
by Modine
to Appeal
a Hearing Officer Order Denying Motion
to
incorporate record,
an April
24 Agency renewed objection to that
incorporation, and
a May
7 Reply
to that Objection.
Modine’s May
7 motion
to leave
to file instanter
is granted.
In addition to
these filings the Board has reviewed the Hearing Officer’s April
10 Rulings on Motions and the parties motions and responses to
the hearing officer leading
to that Order.
This controversy began with Modine’s
request
in paragraph
B
(page 13)
of the Petition for Variance seeking
to incorporate by
reference the entire record in PCB 82—ill.
The Board’s October
24, 1985 Order setting this matter
for hearing denied that
incorporation stating:
The
Board
will
incorporate
all
Opinions
and
Orders from PCB 82—111 into this proceeding by
reference.
However,
any other portion
of the
record
in
PCB
82-111
which
Modine
wishes
included
in this proceeding must
be filed with
the Board
in the usual manner.
At the time of that Order
the Board was fully aware of
35
Iii.
Adin.
Code 104.123
as well
as its prior precedential
interpretations.
Unfortunately,
at some point pragmatism must
overrule procedural nicety.
A prior
record may be incorporated into
a proceeding
by
reference.
However,
that incorporation is of little value until
the Board physically acquires the documents in question.
The
multitude
of proceedings and limited storage space require the
Board
to transfer old closed
files
to long—term storage.
The 90
and 120 day statutory decision deadlines imposed on the Board do
not necessarily correlate with document retrieval times.
As
a
69-377
—2—
result
the Board must consciously disregard
its procedural rule
as impractical.
An incorporation rule having validity when the
Board had
three years of records may lose
its validity when the
Board has 15 years of old records.
Additionally,
the Board notes
that parties have sought
to incorporate prior
records which
themselves incorporate even earlier
records.
As
a result,
the
Board simply must abandon the procedural rule and require the
parties
to physically place such old documents into the current
record*, with the exception of old Opinions and Orders which are
available
for incorporation.
It
is with this perspective and the
necessary confusion
it has
inflicted on
the parties and the
hearing officer that the Board must view the present controversy.
The Board
holds that ~
party to
a variance proceeding may
incorporate such portions
of the record
of a prior proceeding
as
it desires,
so long as that material
is physically presented to
the Board.
The Board would hope that difficulties of document
retrieval not give rise to conflicts
resulting
in dual
submissions comprising nearly all
of the prior
record.
The Board
would hope
the parties would
jointly submit
the entire prior
record.
When the question
of whether the prior
record can be
introduced at all
is removed,
the remaining issue centers on
whether
such documents can be introduced
in lieu of actual oral
testimony subject
to cross—examination or whether such older
documents are relevant
to deciding
if the present variance
request should be granted.
Unførtunately,
those arguments
confuse
the admissibility of evidence with the burden of proof.
The moving party in a variance proceeding has the burden
to prove
by a preponderance
of
the evidence that they are presently
entitled
to the relief they request.
If they fail in
that burden
because
the evidence
is stale the remedy
is not to strike that
evidence which has been tendered, but
to deny the requested
relief.
If the opponent believes the evidence
is stale,
they are
free
to argue against the requested relief or
to introduce
evidence
of changed circumstances.
Of all the difficulties faced
by this Board,
too much evidence has seldom been
a problem.
The Board
is acutely aware of
the arguments
of the Agency
and the concerns of the Hearing Officer regarding actual
testimony which may be cross-examined and which
the many
interested citizens may hear..
The Board cannot compel Modine or
any other moving party
to establish any present circumstances.
It can only provide an opportunity for the moving party
to
present such evidence as
it sees fit and deny relief
if
the
necessary burdens are not met.
The Board notes
that it
is not
*The Board will attempt
to remedy this difficulty
in its present
review of the procedural
rules.
See Order
of April
10,
1986.
69-378
—3—
presented with any motions
to compel
the production of discovery
and
today’s opinion should
not be construed
as relating
to those
matters.
Additionally,
some of these concerns are minimized by
Modine making the documentary material available for public
scrutiny prior
to hearing
(Modine’s Reply, April
7, paragraph
18).
In summary,
the Board overrules the Hearing Officer’s April
10 Order
relating
to incorporation of prior
record.
The Board
apologizes
to the hearing officer
for any inartful phraseology
in
the October
24 Order which allowed the conclusion that the Board
had ruled
on the admissibility of the prior record and that the
hearing officer was bound by that ruling
(Hearing Officer Order,
p.
2).
IT IS SO ORDERED.
Board Member J. Marlin concurred.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board1 hereby certify that the above Order was adopted on
the
7-~
day of
___________________,
1986,
by a vote
of
____________
Dorothy M./Gunn,
Clerk
Illinois Pollution Control Board
69.379