ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    March
    5,
    1981
    COUNTY
    OF
    LASALLE,
    et
    al.,
    )
    Petitioners,
    V.
    )
    PCB
    81—b
    ILLINOIS
    ENVIRONMENTAL
    PROTECTION AGENCY; WILLIAM
    CLARKE; PIONEER DEVELOPMENT,
    et al.,
    Respondents.
    ORDER OF THE BOARD
    (by D. Satchell):
    On February 13, 1981 Respondents William Clarke, Pioneer De-
    velopment and Pioneer Processing,
    Inc.
    (Pioneer)
    filed a rnotior~
    to strike and a motion in limine requesting clarification of lan-
    guage in Section
    40(b)
    of the Act and recently amended Procedural
    Rule 503(a) concerning the scope of the hearing
    in third party
    permit appeals.
    Pioneer asks the Board to take official notice
    of the record in PCB 80-184, Alliance for a Safe Environment,
    et
    al.
    v. Akron Land Corp., et al.
    Pioneer questions certain rulinas
    of the Hearing Officer in that matter.
    Petitioners filed ob~jec-
    tions
    to the motions on February 18 and February
    27, 1981.
    The Board has not decided the ~kron case and declines to rule
    on it in this context.
    However, the Board will provide guidance
    on the general questions.
    The Hearing Officer in general should
    allow offers of proof where there is reasonable
    doubt
    as to ad-~
    missibility.
    Extraneous material can later be stricken from the
    record, but omitted material will require
    a new hearing if it
    is
    later judged admissible by the Board or a higher court.
    The uncertainty in this case lies in the application of the
    following language of Section 40(h)
    of the Environmental Protectic~n
    Act
    (Act):
    “Such hearing shall be based exclusively on the record
    before the Agency.”
    A question arises as to what evidence may be
    admitted at the hearing if the Board~sconsideration is to be based
    exclusively on the record before the Agency
    (Menard v. Bowman Dairy
    Co., 296 Ill.
    App.
    323,
    15 NE 2d 1014,
    1015)
    The Board has long held that a similar rule applies
    in appeals
    by the permit applicant
    (Soil Enrichment
    v. IEPA, PCB 72-364,
    5 PCB
    715, October 17, 1972; Oscar Mayer v.
    IEPA,
    PCB 78-14,
    30 PCB 397,
    32 PCB 243,
    June
    8 and December 14, 1978; Environmental Site De-
    velopers v. IEPA, PCB 80-15,
    38 PCB 443,
    June
    12, 1980).
    41—49
    —2—
    Where
    a third party contests the grant of a permit there is
    an issue as to whether there was proof by the applicant that the
    facility “will not cause a violation of the Act” or Board rules.
    There is
    a further issue
    as to whether any conditions
    in the issued
    permit are “inconsistent with” Board regulations,
    The third party
    could seek to prove that conditions are not “necessary to accom-
    plish the purposes of the Act,”
    although the third party would
    ordinarily argue for more stringent conditions.
    There is also a
    possibility that the third party may offer additional conditions,
    not inconsistent with Board rules, and seek to prove that they ar.~
    “necessary to accomplish the purposes of the Act”
    Section
    39(a)
    of the ActJ.
    The Board does not require mere repetition of evidence or
    testimony which is already in the Agency record.
    If evidence out-
    side the Agency record is offered, the Board requests that the
    Hearing Officer rule on its admissibility considering Section
    39(a)
    and Section 40(b)
    of the Act, and the issues noted above.
    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
    party to proceed with an offer of proof where the
    proffer is otherwise relevant.
    In making offers of proof parties
    should explain why the evidence is not a part of the Agency record.
    At the hearing
    the
    Hearing Officer should allow a reasonable time
    for members of the public who are not parties to comment.
    This Order is intended only to offer guidance to the Hearing
    Officer and parties
    in the conduct of the hearing.
    It is not in-
    tended as a holding on any of
    the
    legal questions discussed.
    Petitioners should be advised that Section 40(a)
    of the Act
    provides that Pioneer may deem the
    permit issued
    unless the Board
    rules on the petition within ninety days of its filing.
    In Akron
    the Board held that this time may be extended only by the permit
    applicant.
    Petitioners should be further advised that Procedural
    Rule 504 requires them to furnish a stenographic transcript of the
    hearing at their expense.
    The Board will decide the motion to
    strike with the
    case.
    IT
    IS SO ORDERED,
    4 1—50
    —3—
    I, Christan
    L. Moffett, Clerk of the Illinois Pollution
    Control Board, hereby certify that the above Order was adopted
    on the
    ,~
    day of
    ___________,
    1981 by a vote of
    ~
    ~‘.
    Christan
    L.
    Moff’e~4~3
    Clerk
    Illinois Po1lutithtt~ontrolBoard
    41—51

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