ILLINOIS POLLUTION CONTROL BOARD
November 26,
1990
GALLATIN NATIONAL COMPANY,
)
Petitioner,
)
V.
)
PCB 90—183
)
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by J. Anderson):
This matter comes before the Board on an “Appeal
of Hearing
Officer’s Order Dated November
12,
1990 and Motion for Expedited
Review”
filed
November
19,
1990
by the
Illinois
Environmental
Protection
Agency
(Agency).
On
November
29,
1990,
Gallatin
National
Company
(Gallatin)
filed
its response
to
the Agency’s
appeal of the hearing officer’s ruling.
This matter
is set for
expedited hearing on November 29,
1990.
Before addressing
the merits
of the appeal
of the hearing
officer’s ruling,
some discussion of the background of this case
is
necessary.
On October
9,
1990,
Gallatin
filed
a
petition
requesting a “variance from the regulations contained in 35
Ill.
Adm. Code 812 until October,
1991.”
By its petition for variance,
Gallatin
is seeking
relief
from
the application
of the Board’s
newly enacted landfill regulations set
forth
in Part 812
of the
regulations to Gallatin’s pending application before the Agency for
a
development
permit
for
a
balefill
in
Fairview,
Illinois.
Gallatin argues that because its permit application was pending
before the Agency prior to the September 19,
1990 effective date
of the new regulations,
the Agency
should not apply
those new
regulations to Gallatin’s permit
application,
but should rather
apply the “old regulations”
in effect at the time the application
was
filed.
However,
Gallatin
also
asserts
that
it
is
in
“substantial compliance” with most
of the new regulations,
but
argues
that
compliance with
“some
of
the
new regulations will
impose an arbitrary or unreasonable hardship.”
While Gallatin
cites four examples of new regulations imposing such a hardship,
it does not delineate exactly from which regulations
it seeks
a
variance.
Rather, Gallatin requests a variance from Part 812 until
October of 1991,
when,
it asserts,
it will be in full compliance
and before it will be receiving any waste.
The Agency’s recommendation objects to the requested variance
on the basis that the requested relief
is inappropriate because
Gallatin
is,
in
actuality,
requesting
permanent
relief
and,
therefore asks that the petition be dismissed.
Alternatively, the
Agency asserts that the variance should be denied because Gallatin
has failed to meet its burden of proof under Section 35(a)
of the
116—201
2
Act.
The Agency also asserts that “retroactive” application of the
new regulations is appropriate.
On November 13,
1990,
Gallatin filed a motion for expedited
discovery
and
accompanying
interrogatories.
These
30
interrogatories basically ask the Agency whether Gallatin’s permit
application satisfies various sections of Part 812 and, if it does
not, to explain why the application does not meet the requirements
of the section.
On November 13, 1990, the hearing officer entered
an
order
granting
Gallatin’s
motion
for
expedited
discovery,
ordering the Agency to answer the interrogatories
no
later than
November
26,
1990.
This
order
noted that
the hearing
officer
attempted to telephone the Agency to see
if
it objected
to the
motion, but received no response from the Agency.
In
its appeal
of the hearing officer’s
ruling,
the Agency
argues
that
it was
denied
a
chance to
respond
the motion
for
expedited discovery because the hearing officer granted the motion
the same day the Agency was served with the motion.
The Agency
correctly states that
it was
not served with the motion
until
November 13,
1990 and that the faxed copy it received on November
9,
1990 did not constitute proper service.
The Agency also notes
that on November 13,
1990, the Agency attorney attempted to return
the hearing officer’s telephone call but was unable to reach the
hearing officer.
In its November 26,
1990 response to the Agency’s appeal of
the hearing officer’s ruling, Gallatin argues that the Agency’s
appeal
is improper because
it does not comply with
35
Ill.
Adni.
Code
101.247(b)
governing
interlocutory
appeals
of
hearing
officer’s rulings on motions.
While the Board does not countenance
the
Agency’s
failure
to
file
with
the
Board
a
motion
for
interlocutory appeal, the Board will rule upon the Agency’s motion
appealing the hearing officer’s ruling because of the importance
of the issue involved to the resolution of this matter and because
of the expedited schedule of the instant proceeding.
Gallatin also
argues that the arguments raised in the Agency’s motion are without
merit and should be disregarded.
The Board finds that,
under the instant facts,
the hearing
officer’s conduct of ruling on Gallatin’s motion on the same day
the motion was served on the Agency is harmless error.
The hearing
officer needed to act on Gallatin’s motion within
a
relatively
short time period given that the expedited hearing is scheduled for
November 29,
1990.
While the hearing officer’s ruling makes no
reference to the need to avoid undue delay or material prejudice,
the Board finds that given that the hearing in this matter
is set
for November 29,
1990,
the hearing officer’s conduct in granting
the motion prior to
the
response period having
expired
is
not
inappropriate.
In addition to the procedural issues raised by the Agency, the
116—202
3
Agency also objects to the substance of the posed interrogatories
as being unnecessary and burdensome.
The Board recognizes that the
scope of discovery
is broad.
(Wilson
v. Norfolk and Western Ry.
Qg~,440 N.E.2d 238, 244
(5th Dist.
1982).)
However, the rules of
discovery
do
not
require
that
the
interrogated
party
furnish
information that does not presently exist for the benefit of an
adverse party.
(Mendelson v.
Feingold,
387 N.E.2d
363,
366
(2d
Dist.
1979).)
Discovery is directed only to disclosure of that
which
does
exist,
for
example,
knowledge possessed by
persons.
(~.)
One of the primary purposes of discovery is to promote the
fact-finding process.
(People v. Rayford,
356 N.E.2d 1274,
1277
(5th Dist.
1976); Quagliano v. Quagliano,
236 n.E.2d 748 751
(3d
Dist. 1968.)
Interrogatories calling for conclusions are improper.
(Fedors v. O’Brien,
188 N.E.2d 739, 742
(1st Dist.
1963).)
In the instant case, the interrogatories are directed toward
the Agency’s permit decision which has not yet been rendered.
The
interrogatories
would
require
the
Agency
to
disclose
its
determination of whether it deems Gallatin’s permit application to
demonstrate
compliance with the new regulations.
Such matters
constitute conclusions and do not serve the fact—finding purpose
of
discovery.
Requiring
the
Agency
to
answer
the
posed
interrogatories would
be tantamount to directing the Agency to
render
its
permit
decision
prematurely
and
in
a
proceeding
collateral to the permit proceeding.
Therefore,
the Board finds
the interrogatories to be improper and grants the Agency’s motion
appealing the hearing
officer’s
ruling.
The hearing officer’s
order
granting
Gallatin’s
motion
for
expedited
discovery
is
reversed.
IT IS SO ORDERED.
I,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certfy that the above Order was adopted on the
~
day of
______________
,
1990 by a vote of
-4”~
Ill
Control Board
116—203