# Caterpillar Tractor Co. v. Pollution Control Board

> Appellate Court of Illinois · May 19, 1977 · 48 Ill. App. 3d 655

URL: https://www.frixlaw.com/law-library/cases/9530383

## Case

- **Full name:** CATERPILLAR TRACTOR COMPANY, Petitioner, v. THE POLLUTION CONTROL BOARD Et Al., Respondents
- **Court:** Appellate Court of Illinois
- **Decided:** May 19, 1977
- **Citations:** 48 Ill. App. 3d 655; 6 Ill. Dec. 737; 363 N.E.2d 419; 1977 Ill. App. LEXIS 2636
- **Precedential status:** Published
- **Opinion:** Concurrence by Barry
- **Judges:** Stengel, Barry
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9530383

## Opinion text

Mr. JUSTICE BARRY, specially concurring:
I concur in the result declared in the majority opinion but not in all the reasoning and logic used to reach the result of a reversal and remand.
I believe that this case can be resolved on only one of the issues raised, and that a detailed analysis of the Federal and State variance procedures and precedents is not required. I fully agree with the majority opinion in the conclusion that it was error for the Board to base its findings on the Agency’s final 1974 report of ambient air quality, which report was not in evidence and was not published until after the hearing before the Pollution Control Board. The final 1974 report on ambient air quality was never a part of the record and was only filed in this court with the filing of the Pollution Control Board’s brief. It is axiomatic that the petitioner here should have full opportunity to challenge, test, and possibly refute facts which form a basis of the administrative agency’s adjudication. Allowing the Pollution Control Board to take judicial notice of this extra-judicial evidence denies petitioner’s opportunity to be heard. Accordingly I concur in the majority opinion’s granting of the motion to expunge the final 1974 report from the record, but believe for that reason alone the decision of the Board should be reversed.
I also agree with the majority in remanding this cause to the Pollution Control Board to enter an order granting the requested variance after reconsideration of and subject to the Environmental Protection Agency’s recommended conditions in granting the variance.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9530383. Public record. Not legal advice.