ILLINOIS POLLUTION CONTROL BOARD
    August
    18,
    1988
    IN THE ~4ATTEROF:
    BI—STATE DISPOSAL,
    INC.,
    )
    PCB #AC 88—24
    )
    PCB #AC 88—33
    Respondent.
    (88—2—SC—St. Clair
    County Docket)
    ORDER OF THE
    BOARD
    (by
    3.
    Anderson):
    The County has requested the Board
    to review
    a July 1,
    1988
    Hearing Officer Order
    in these matters.
    The Board
    is taking
    action today
    to avoid delaying hearing
    in this matter which has
    already once been rescheduled
    and now
    is set
    for
    September
    7,
    1988.
    The salient portion of the
    H.
    0. Order states:
    Respondent asked
    for
    “All documents
    ...
    which
    relate
    to
    the
    landfill
    located
    in
    St.
    Clair
    County
    known
    as
    the Milam Landfill,
    currently
    operated by Waste Management,...”.
    Petitioner objected
    to the production of these
    documents
    on
    the
    grounds
    that
    they
    are
    irrelevant
    in
    this
    case.
    On
    June
    15,
    a
    conference
    was
    held
    to
    discuss
    Petitioner’s
    objection
    to
    production.
    During
    the
    conference,
    Respondent’s
    counsel
    stated
    that
    he needs these documents
    in order
    to provide
    a
    factual
    foundation
    for
    a
    legal
    theory
    he
    wishes
    to develop
    in
    this
    case.
    This
    legal
    theory relates
    to the equality of treatment
    ——
    or
    inequality
    of
    treatment
    ———
    accorded
    Respondent •Bi—State
    Disposal,
    Inc.,
    in
    this
    case
    versus
    other
    landfill
    operators
    by
    the
    St.
    Clair
    County
    government
    and
    other
    governmental bodies.
    The
    undersigned
    Hearing
    Officer
    ruled
    that
    Respondent
    may develop
    the
    factual
    basis
    for
    this
    legal
    theory
    during
    discovery,
    and
    consequently
    ordered
    production
    of
    the
    documents
    in question.
    91—401
    —2—
    The Board
    finds
    that the requested documents are
    in fact
    irrelevant
    in this case,
    as the legal
    theory which respondent may
    seek
    to advance
    is beyond
    the scope of permissible
    issues
    in the
    administrative citation process as set forth
    in Sections 21(p)
    and 31.1 of
    the Act.
    Section 3l(d)(2)
    limits the defenses available
    to the
    respondent
    to two:
    that the violation complained of did not
    occur,
    Or
    “that
    the violation resulted from uncontrollable
    circumstances”.
    Had the legislature wished the Board
    to consider
    issues concerning exercise of prosecutorial discretion when
    reviewing administrative citations,
    it would have so stated.
    The Hearing Officer’s Order
    to produce documents relating to
    the Milam Landfill
    is overruled.
    IT
    IS SO ORDERED.
    I, Dorothy
    M.
    Gunn, Clerk of
    the Illinois Pollution Control
    Board, hereby certify
    that the above Order was adopted on
    the
    Jf~~
    day of
    ~
    ,
    1988,
    by
    a vote of
    ~p5
    Dorothy M. dunn, Clerk
    Illinois Pollution Control Board
    91—402

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