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East Moline v. Pollution Control Board





Petition for Review of Order of Pollution Control Board. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

The Illinois Environmental Protection Agency (Agency) filed an 11-count complaint with the Pollution Control Board (Board) charging the city of East Moline (city) with statute, regulations and rules violations in the management and operation of a sanitary landfill. After hearings before a hearing officer of the Board and arguments to the Board, the city was held to have committed all of the violations charged. It was assessed a penalty of $30,000, and its permit to operate the landfill was revoked. The city is seeking direct review of the Board's order in this court.

The city owns and operates a sanitary landfill in Rock Island County. The Agency issued the city an original operating permit on September 23, 1971. In the ensuing years, the city operated the landfill and accepted waste essentially from its residents. Several supplemental permits were also granted to the city. On April 8, 1974, a permit was issued allowing the city to accept digested sludge.

In January 1983, the Agency filed its complaint detailing and describing the city's violations of its permit, the statute and regulations applicable to the operation of sanitary landfills. At the hearing, the nine Agency inspectors who had visited the East Moline landfill over the period of alleged violations (1973-1982) testified. The Agency also introduced inspection reports, sketches and photographs documenting at least 62 inspections. The director of public services and the assistant director for the city of East Moline testified on behalf of the city.

On this appeal, the city argues the Board erred in three respects. First, the Board improperly excluded the city's exhibit No. 48 which was a copy of a memorandum dated November 9, 1981, from Joseph Podlewski to Gene Theios, both employees of the Agency, second, the conclusion of the Board that the city violated the Act as charged in counts VII and VIII is contrary to the manifest weight of the evidence and third, the penalties imposed by the Board are excessive, are not supported by the evidence and are an abuse of discretion.

• 1, 2 The first question we shall consider is whether the Board properly excluded the city's exhibit No. 48 as irrelevant hearsay.

In the summer of 1982 Steve Verdick and Donald Anderson and other city officials went to Springfield to review Agency files on the landfill. Joseph Podlewski, the Agency's attorney, presented them with various documents. They received copies of some documents and separately transcribed the contents of others. Exhibit No. 48 was a transcription of the contents of an actual memo from Podlewski to a fellow employee dated November 9, 1981. That exhibit was written by Anderson, one of the city's employees, in the presence of Verdick, who watched it being written. Podlewski was present at the time.

The memo first became an issue as a result of a request to produce it filed by the city. The Agency resisted. The hearing officer, after reviewing the original memo in camera, ordered it to be produced.

Verdick, in his testimony, identified the copy of the memo as transcribed by Anderson, who was unavailable to testify. Whether the original of the memo was turned over to the city as directed by the hearing officer is unclear from the record. In any event, no claim was made that the copy was not true and accurate.

The memo from Podlewski was a response to an inquiry from Theios, permit section manager. According to the memo, Podlewski indicated the city's violations were not serious enough to require a hearing on its pending permit application. If alleged violations of existing permits or regulations are serious enough so that if proved a pending application should be denied, a hearing on such alleged violations is required under the ruling in Martell v. Mauzy (N.D. Ill. 1981), 511 F. Supp. 729.

In arguing the memo should have been considered by the Board, the city argues, first, the Board was improperly exercising appellate functions in reversing a decision of the hearing officer which had permitted the introduction of the memo, and second, the memo was neither irrelevant nor hearsay as found by the Board.

We do not agree with the city that the Board lacks authority to make different evidentiary rulings than those made by its hearing officer. Indeed, in order to promote the efficiency of the system, the hearing officer should permit the introduction of evidence which is arguably proper so that a final decision can be made by the ultimate decision-making authority, the Board, without the necessity of referring the issues back to the hearing officer for further hearings if the same can be avoided. No authority has been cited, and on principle we doubt there is any, which holds that the hearing officer's determination on evidentiary issues is conclusive.

We do believe the Board erred in declining to consider the memo in this case, as we believe it is neither hearsay nor irrelevant. The exhibit was not presented for the purpose of proving the absence of violations or compliance with the regulations and permit requirements but rather to place in proper context the seriousness and the significance of the violations alleged to have occurred prior to 1981. (See Tri-County Landfill Co. v. Pollution Control Board (1976), 41 Ill. App.3d 249, 353 N.E.2d 316. Recently, in City of Moline v. Pollution Control Board (1985), 133 Ill. App.3d 431, we approved the admission of interagency documents as they related to the Agency's enforcement procedure and the responsiveness of the alleged violator.

The Agency has relied primarily on Illinois Power Co. v. Pollution Control Board (1981), 100 Ill. App.3d 528, 426 N.E.2d 1258, and Chmieleski v. Venture Stores, Inc. (1982), 106 Ill. App.3d 312, 436 N.E.2d 4. These cases are distinguishable on their facts and lack any principle of sufficient generality to include the exhibit involved in this case. In Illinois Power, a request was made to supplement the record by including parts of the conversation of the members of the Pollution Control Board occurring during their deliberations. Obviously the deliberative discussion of the Board members was not part of the record. In Chmieleski, the court held that the agent of an insurance company was not the agent of its insured and consequently admissions of the company's agent were not binding on the insured.

In this case, there is no question but that Podlewski was an agent of the IEPA, that the statement was made in the usual course of his duties and it did represent or have a substantial bearing on Agency policy. As applied to the facts of this case, it has particular relevance both because of the result reached, i.e., revocation of permit and large fine, and the ...

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