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

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