ILLINOIS

POLLUTION CONTROL BOARD

August 22,

1984

DEAN FOODS,

Petitioner,

v,

)

PCB 81—151

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

RICHARD J~KISSEL AND THERESA YASDICK (MARTIN, CRAIG, CHESTER &

SONNENSCHEIN), ATTORNEYS-AT-LAW

APPEARED ON BEHALF

OF

PETITIONER; AND

WAYNE L. WIEMERSLAGE, ATTORNEY-AT-LAW, APPEARED ON BEHALF OF

RESPONDENT

CONCURRING OPINION

(by

J..

ID.

Dumelle):

While

I agree with the majority order

I find the exclusion

of the evidence on the “best degree of treatment~to be incon-

sistent and incorrect

(ODinion,

pp.

4—6).

The majority

opinion

correctly states that

a de

novo

hearing should he allowed on the factual issue of whether or

not Dean Foods

is

providing

the “best degree of treatment”

(Opinion, p. 5)~

Having

ruled

that the de novo hearing was

proper, the majority then excluded that ~vidence developed at

the hearing it had just stated was proper

(Opinion,

p.

6Y.

Further the majority admits to a complete review of the evidence

it has excluded and makes the judgment that it is irrelevant.

The Board Rule and the Olin decision cited can be

in

conflict

with the Album

decision.

But here the majority agrees that the

issue was a factual one and properly the

subject of

a

de_nova

hearing..

The evidence then developed should have been accepted?

not excluded,

and then the juc1~me~ntas to ~elev~ancymade.

I~Dorothy M.

Gunn, Cler~of the

Illinois Pollution Control

Board, hereby certify that the above Con

urring Opinion was

submitted on the

~

day of

~

,

1984.

~

~•

/L~

Illinois ~ô11ution Control Board

59-385