ILLINOIS POLLUTION CONTROL BOARD
    September 8,
    1988
    CITY OF EAST MOLINE,
    )
    Petitioner,
    v.
    )
    PCB 87—127
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    ORDER OF THE BOARD
    (by
    B.
    Forcade):
    On August
    22,
    1988,
    the Illinois Environmental Protection
    Agency
    (“Agency”)
    filed
    a motion
    for Board
    ruling.
    That motion
    seeks
    a determination of,
    “Whether discovery
    is authorized
    by the
    Board’s Procedural
    Rules governing variances,
    35
    Ill. Mm.
    Code
    Part 104”.
    The Agency argues that discovery
    is not clearly
    authorized
    in such proceedings.
    This motion
    is subsequent
    in
    time
    to a motion filed by the City of East Moline (“East Moline”)
    with the hearing officer seeking
    to compel discovery from the
    Agency.
    On August 29,
    1988, East Moline filed
    a motion to strike
    the
    Agency’s motion for Board ruling.
    East Moline asserts that the
    Agency’s motion
    is frivolous and that,
    “...the Agency is using
    this case as a forum to air its grievances over an unrelated
    regulatory
    decision issued
    by the Board...”
    East Moline argues
    that discovery is clearly and specifically authorized
    in variance
    proceedings.
    The Board agrees with East Moline that discovery is
    specifically and clearly contemplated
    in the procedural
    rules.
    Section 104.201
    (a)
    states
    that,
    “Proceedings upon a petition for
    variance shall be in accordance with Part 103...~ And, Section
    103.101 provides that the rules
    in Part 103 apply to variance
    proceedings.
    The discovery provisions of Section 103.161
    therefore apply to variance proceedings.
    The Board
    finds no
    merit
    in the Agency’s assertions to the contrary.
    On page
    3
    of
    its motion,
    the Agency states,
    “The Agency will
    take no action to respond to the Motion
    to Compel until directed
    to do so by the Board”.
    A party to an adjudicatory proceeding
    should decide whether
    to respond to
    a motion based
    on the advice
    of learned Counsel.
    However,
    a party declines to respond
    to
    a
    motion at their own peril.
    92—49
    —2—
    The Board has not been requested to, and would not lightly
    entertain,
    interfering with the hearing officer’s authority to
    rule on discovery issues.
    Any discovery issues should
    be
    directed
    to the hearing officer.
    IT
    IS SO ORDERED
    I, Dorothy M. Gunn,
    Clerk
    of the Illinois Pollution Control
    Board,
    e
    by certify that the above Order was adopted on
    the
    ______
    day of ________________________,
    1988, by a vote
    of
    7-0.
    Illino
    Control Board
    92—50

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