ILLINOIS POLLUTION CONTROL BOARD

October 19,

1983

DEAN FOODS,

)

)

Petitioner,

v.

)

PCB

81—151

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

ORDER OF THE BOARD

(by 3,

Anderson):

On September 30,

1983 the Illinois Environmental Protection

Agency (Agency)

filed a Motion to Allow Interlocutory Appeal from

the Hearing Officer’s September 13,

1983 order denying its Second

Motion in Limine,

the appeal having been filed on September 29,

1983.

Petitioner’s Response along with a

Memorandum of

Law was

filed October 11,

1983.

The Agency’s October

17, 1983 Motion for

Leave

to Reply Instanter and October 18 Motion for Leave to

Supplement Authority are hereby granted.

The requirement to file motions fourteen days prior to

hearing contained in Section 103.140(a) of the Board’s Procedural

Rules

(35 Ill.

Adm. Code 100 et

~j.)

is waived and the Agency’s

Motion for Interlocutory Appeal

is granted pursuant to Section

103.140(f).

This appeal

is being considered to avoid any misapprehensions

which may have arisen due to the brevity of the Hearing Officer’s

Order.

This Order provides in pertinent part that:

“The Second Motion in Limine of Respondent ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

is

denied

for

the

same

reasons as set forth in the order

in the First Motion.

To repeat, the nature of this Motion

is to prevent the

Petitioner from offering into evidence any facts which were

discovered

after September 24,

1981.

The Pollution Control

Board itself must decide whether or not

it will consider such

evidence, it is only proper to have said evidence available

in the record.

Once the record is complete the Pollution

Control Board can reject that portion which may not be

pertinent.

Furthermore, granting the Motion of Limine would

be

a useless act in that the Petitioner would be permitted

to make an offer of proof

which would get the same documents

before the Pollution Control

Board in any event.”

54-231

---

2

The Board assumes that in

so ruling, the Hearing Officer did

not mean

to imply that he had no authority to rule on the

admissibility of evidence sought to be introduced by the parties.

As the parties agree,

the evidence received

in this matter must

relate to “whether the Agency erred

in denying or placing

conditions upon the permit

in

light of

information which was

before the Agency when it made the decision”

(see Agency Reply,

p.

1).

Concerning offers of proof, the Board noted in County of

LaSalle v.

IEPA,

PCB 81—10

(March

5,

1981):

“The Board does not require mere repetition of evidence or

testimony which is already in the Agency record.

If evidence

outside the Agency record

is offered,

the Board requests

that the Hearing Officer rule on its admissibility.

.

.If the

Hearing Officer admits evidence, the adverse parties may

note their objections

to the Board.

If the Hearing Officer

rules the evidence inadmissible because it was not in the

Agency

record, he should allow the p~rtyto proceed with an

offer of proof where the proffer is otherwise relevant.”

(PCB 81—10 at p.

2).

The Hearing Officer’s Order

is affirmed.

IT IS SO ORDERED.

I,

Christan L.

Moffett,

Clerk of the Illinois Pollution

Control Board, hereby certify that the above Order was adp~ted

on the

Jg~

day of

~

,

1983 by a vote of ~-~—O

—.

L.

Mo:

Illinois

Pol