ILLINOIS POLLUTION CONTROL BOARD
    January 9, 1997
    WHITE & BREWER TRUCKING, INC., )
    )
    Petitioner,
    )
    )
    v.
    )
    PCB 96-250
    )
    (Permit Appeal - Land)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    )
    ORDER OF THE BOARD (by K.M. Hennessey):
    In this case, petitioner White & Brewer Trucking, Inc. (White & Brewer) seeks
    a review of the Illinois Environmental Protection Agency’s (Agency) determination that
    White & Brewer’s significant modification (sig mod) application for a landfill unit is
    incomplete. By this order, the Board grants White & Brewer’s request that the Board
    enforce a portion of the Board’s November 21, 1996 order, and denies White &
    Brewer’s request to supplement its response to the Agency’s motion for summary
    judgment.
    The relevant procedural history is as follows. On September 3, 1996, the
    Agency filed a motion for summary judgment. In response, White & Brewer filed a
    motion to supplement the record (and other pleadings) on September 5, 1996. On
    September 17, 1996, the Agency filed a brief opposing the motion to supplement. On
    September 30, 1996, White & Brewer filed for leave to file a reply to Agency’s brief
    opposing the motion to supplement.
    By order dated November 21, 1996, the Board granted White & Brewer leave to
    file a reply to the Agency’s brief. The Board also granted in part White & Brewer’s
    motion to supplement the record. In particular, the Board ordered the Agency to
    supplement the record with documents referenced as attachments to a letter at pages 6
    and 7 of the Agency record; specifically, “the appropriate state regulations, 35 Ill.
    Adm. Code Parts 810-815” and the “draft instructions” for certain application forms.
    In the November 21, 1996 order, the Board also ordered White & Brewer to file
    a response to the motion for summary judgment on December 6, 1996. White &
    Brewer did so, and in its response (Response) points out that the Agency has not
    supplemented the record as the Board has directed. White & Brewer asks that the
    Board direct the Agency to supplement the record with these documents by a date
    certain. (Response at 19.) White & Brewer also requests that it be granted a
    2
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    reasonable amount of time to develop an appropriate response to the motion for
    summary judgment based on this information. (Id.)
    The Board grants White & Brewer’s request to order the Agency to supplement
    the record by a date certain. The Agency is hereby ordered to supplement the record
    with “the appropriate state regulations, 35 Ill. Adm. Code Parts 810-815,” and the
    “draft instructions” included with the application forms, by filing these documents with
    the Clerk of the Board no later than January 17, 1997.
    At this time, the Board will not grant White & Brewer’s request to supplement
    its response to the motion for summary judgment based on the Agency’s failure to
    supplement the record with these documents. First, the “appropriate state regulations,
    35 Ill. Adm. Code Parts 810-815,” are readily available in the Illinois Register and a
    variety of other sources; indeed, White & Brewer cited portions of those regulations in
    its Response. (See, e.g., Response at 15-17 and 21-22.) Thus, White & Brewer has
    already had an opportunity to address these regulations. Second, the record reflects
    that the “draft instructions” were sent to White & Brewer on September 3, 1993.
    Accordingly, White & Brewer could have and should have already addressed the draft
    instructions in its Response.
    1
    If White & Brewer (or its consultants or attorneys) did
    not in fact have the draft instructions in its possession when it filed its Response, it
    should file a motion to supplement its Response supported by an affidavit to that effect.
    That motion also should demonstrate the relevance of the draft instructions to White &
    Brewer’s Response to the motion for summary judgment. The Board will allow White
    & Brewer until February 4, 1997 to file this motion to supplement its response if White
    & Brewer wishes to do so.
    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 _____ day of ____________, 1997, by
    a vote of ___________.
    ______________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
    1
     
    The Board notes that White & Brewer’s Response attached and relied upon other
    documents that have not yet been added to the record by Board order; White & Brewer
    has filed a second motion to supplement the record with these documents, which the
    Board will address in its ruling on the motion for summary judgment. (White &
    Brewer Resp., Ex. C, D.)

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