ILLINOIS POLLUTION CONTROL BOARD

March 11,

1993

MARATHON

OIL COMPANY,

Petitioner,

v.

)

PCB 92—166

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD

(by R.C. Flemal):

On February 25,

1993, Marathon Oil Company (Marathon)

filed

a motion to supplement the record

in this proceeding.

Marathon

contends that a number of documents that were not included in the

record have a bearing on the proceeding and were contemplated by

Illinois Environmental Protection Agency

(Agency) personnel

during the period that Marathon’s application was pending.

The

material Marathon seeks to have included in the record are

summarized as follows:

The Discharge Monitoring Reports

(DMR5)

for each

permitted discharge upstream of Marathon’s discharge

for the two years preceeding the issuance of the

permit.

Any other documentation in the possession of the Agency

concerning other dry weather, man—made sources of flow

upstream of Marathon’s discharge.

All documents prepared by Illinois State Water Survey

in determining the stream flow rate.

Any rules used by the Agency governing the issuance of

NPDES permits.

Any documents relating to the identification of this

stream segment as toxic.

All documents relating to acute or chronic toxicity in

discharges upstream of Marathon’s discharge.

Reports prepared by Marathon and its consultants

relating to stream toxicity, upstream flows,

and stream

biota that have been submitted to the Agency.

01 i~Q~UJ)-i~3

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2

The Agency filed its response to the motion on March

5,

1993.

The Agency argues that the Board’s rules at 35

Ill. Adm.

Code 105.102(b) (5) only require that the Agency answer or record

in NPDES permit appeals contain the hearing file of any hearing

held before the Agency with exhibits, the NPDES permit

application,

NPDES permit denial or issuance letter, and all

correspondence with the applicant concerning the application.

The Agency states that it has filed all such documents that

existed at the time it filed its answer on December

2,

1992.

In

general, the Agency objects to the inclusion of the all the

documents that Marathon requests to be submitted by the Agency.

The Board notes that portions of Marathon’s motion are in

the nature of

a discovery request.

A motion to supplement the

record is not the proper avenue for discovery to take place.

Further, Marathon does not allege that Section 105.102(b) (5) has

not been complied with,

but rather that the record does not

contain documents the Agency could have or should have considered

at the time the Agency reviewed Marathon’s application.

The

Board finds that if Marathon believes that certain documents it

possesses may have been considered by the Agency,

it may include

these documents as exhibits to its petition and argue the merits

of their inclusion in the Board’s record at hearing.

The Board hereby denies Marathon’s motion to supplement the

record.

However, Marathon may raise the issue at hearing subject

to the directives of this order.

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

/T~—

day of

7Th

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,

1993,

by a vote of

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Ill

/

Control Board

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