ILLINOTS POLLUTION CONTROL

BOAPD

October 13,

1977

ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

v.

)

PCB 76-80

ALLAERT RENDERING,

INC.,

Respondent.

ORDER OF THE BOARD

(by Mr.

Young):

On May 19,

1976,

a Complaint was filed charging,

inter

alia,

that Respondent had constructed or modified a treatment

works without the requisite construction permits and had

operated the treatment works without an operating permit issued

by the Environmental Protection Agency.

On June 22,

1977, Complainant filed

a Motion to Allow an

Interlocutory Appeal which

the

Board granted on June

28,

1977,

together with a stay in the proceedings.

On August

4,

1977,

the Board ordered filing of the Motion on or before August 19,

1977,

and which was done on August 23,

1977;

Respondent’s response

and brief was due on or before September

2, 1977,

and was filed

on September

14, 1977.

Complainant appeals from an order of the Hearing Officer

of June

16,

1977,

to produce the Agency permit file pertaining

to a Fox Valley Grease Company,

Inc.

and ordering deposition

of Mr. William H.

Busch,

the then Manager of the Permit Section,

and Mr. Darryl

R.

Bauer, an Agency permit engineer who had reviewed

the Fox Valley permit application.

Fox Valley Grease Company,

Inc.

is

not

a

party

to

this

proceed~nq;

the

purpose

of the

deposi-

tions

wa~ to

inquire

into

Agency

criteria

and

practices

in

reviewing

permit

applications

other

than

the

applications

of

the

Respondent,

Allaert Rendering.

Respondent argues that the depositions and Fox Valley permit

file are necessary to determine the standards and guidelines

utilized by the Agency in processing other permit applications

so that Respondent can prepare a defense to

the

instant Complaint.

28-19

---

—2—

The issue in Counts

I,

II, and III of this Complaint is

simply whether Respondent had or had not constructed and operated

a treatment works without the reauisite permits.

Inquiry

into

Agency procedures and practices

involving Agenc~yprocessing and

decisions on permit applications of non-parties

is

not material

in

a case arising on a complaint alleging construction and opera-

tion without a permit.

The scope of discovery

is derived from

the issues raised by the pleadings and as limited by the nature

of the action.

Section 40 of the Environmental Protection Act and Rule 502

of the Board’s Procedural Rules establish the exclusive proceeding

in which an Agency denial of a permit may be ccntested.

In a

permit denial appeal the Board has consistently held

(Soil Enrich-

ment Materials Coro.

v.

EPA,

PCB

72-364,

5 PCB 715)

that the scope

of review includes only that information which the Agency had

before

it when the decision was made.

New material not before

the Agency at the time of the permit denial decision is explicitly

excluded;

the sole issue is only whether the Agency erred on the

basis of what was before it; the burden of proof is on the peti-

tioner.

It would be entirely inconsistent

to allow then,

in an

enforcement case,

the introduction of new materials

to contest

the denial of a permit which would not have been allowed

in a

permit denial hearing under Section 40 of the Act.

Therefore,

we conclude that the Order of June 18,

1977, must be reversed

as not material

in this action.

The Board will also lift the

stay on the proceedings imposed by our Order of June 28,

1977;

the matter to proceed

to hearing without further delay.

IT

IS SO ORDERED.

I, Christan

L. Moffett, Clerk of the Illinois Pollution Con—

trol Board,

here

y

certify

the

above

Order

was

adopted

on

the

/~

day

of

________________,

1977

by

a

vote

of

~p

~

Illinois Pollutio

ontrol Board