ILLINOIS POLLUTION CONTROL BOARD

July 11,

1986

WELLS MANUFACTURING COMPANY,

)

)

Petitioner,

)

v.

)

PCB 86—48

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD

(by J. Anderson):

This Order addresses three motions filed by Wells

Manufacturing Company (Wells) on June 26,

1986, and the responses

filed

by the Illinois Environmental Protection Agency

(Agency) on

July 1, 1986.

The motion

for rescheduling of the then—scheduled July 10,

1986, hearing

is denied as moot,

as hearing has since been

rescheduled

for July 31,

1986.

(See Hearing Officer Order

of

July

3,

1986.)

The motion to certify the Board’s June 20, 1986, Order

for

interlocutory appeal

is denied.

Supreme Court Rule 308 provides,

in summary,

that such certification may be made where the order

“involves a question of law as

to which there

is substantial

ground for difference

of opinion”,

and

immediate appeal “may

materially advance

the ultimate termination of the litigation.”

Wells’ arguments fail to persuade the Board that either of these

tests have been met;

the “material advancement” test has not even

been addressed.

As to the question of law, and Wells’ assertion

that the Board has misinterpreted the affidavit of Delbert

Haschemeyer, the Board

notes that neither the Agency nor the

Attorney General has asserted that the Board’s interpretation was

erroneous.

Wells’ final motion is a motion for review of

a June 20,

1986, Hearing Officer Order.

That Order denied Wells’ June 16,

1986, motion to strike discovery requests made by the Agency on

June

4,

1986.

These discovery requests included

28 requests to

admit

facts,

8 interrogatories,

and

9 document requests,

covering

a time span both prior and subsequent

to issuance of the first

operating permit

in 1981,

the renewal

of which

is the subject of

this appeal.

Wells had moved

to strike on the basis

that discovery of

materials not in the Agency record was irrelevant,

and that the

71-34

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—2—

requests were generally onerous, burdensome, harassing and

intended

to gather

information for a contemplated enforcement

case.

In response,

the Agency argued that the requests were

proper because this appeal involves

a de novo hearing,

and that

the information requested

is relevant or iiaylead to relevant

information.

The Hearing Officer Order found,

in pertinent part,

that “the discovery requested falls within the parameters of the

Board’s regulations governing discovery and

is not otherwise

onerous or burdensome.”

The Board grants

the motion

to review the Order

in order

to

address a fundamental misconception of the scope of this permit

appeal hearing,

and related issues of

relevance which

the Agency

has advanced and which Wells has not countered.

While the Agency

is correct

in citing Dean Foods Com~an1v.

PCB and IEPA,

No. 2—

84—1125, Appellate Coiiit of IfIlnois,

STécond Iifstrict, April 7,

1986,

for the proposition that hearings de novo are provided for

by Board rule and required in NPDES permit äppeals,

this holding

cannot

be extended

to appeals of other types of permits..

The

controlling case

in air permit appeals remains IEPA v. PCB and

Album,

Inc.,

118 Ill. App. 3d 772,

455 N.E.2d (l~l)

TR~er~Thafter“Album”), which was cited and distinguished

in Dean

Foods as

involving “a permit for

a liquid waste incinerator.

—

Appeals regarding such permits are controlled by Section 40(d)

of

the Act...which limits Board review to the record before

the

Agency”

(slip op.

at p.

11).

In Album,

the First District Appellate Court reviewed the

Board’s reversal of the Agency’s denial of air construction and

operating permits

for the facility.

The court stated

that:

“The

sole

question

before

the

Board

in

a

review

of

the

Agency’s

denial

of

a permit

is

whether

the

petitioner

can

prove

that

its

permit

application

as

submitted

to the A9ency

establishes

that the facility will not cause a

violation

of

the Act..The

Board

may

not

be

persuaded

by

new

material

not

before

the

Agency

that

the

permit

should

be

granted.”

(Emphasis

in

original,

citations

omitted.)

455 N..E.2d at 194.

The corollary to this holding

is that the Board may not be

persuaded by information not before

the Agency that a permit

denial was proper.

In IEPA

V.

Waste M~~ent, Inc., PCB 84—45,

61—68, Opinion and Orde~of Octo5èrT, l98~4,~p.~25—27,

Supp.

Opinion

arid Order of November

26,

1984, pp.

3—4, 10—12,

in the

context of the appeal of land division waste disposal operating

and monitoring permits,

the Board held that

the Agency’s attempt

to introduce testimony and evidence from witnesses which had not

been before

the Agency at the time of the permitting decision was

improper, and that neither the Act nor Board

rules provided for

71-35

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—3—

de novo hearings at the Board level

for

this type of appeal.

~~is~holding was among those affirmed by the Third District

Appellate Court in IEPAv.

IPCB and Waste Management, 138 Ill.

App. 3d

550,

486 N.E.~

~,T

(1985)

(appeal pending, No.

63062,

Ill.

Sup. Ct.).

This case was mis—cited

in Dean Foods based

on

that court’s inability to determine from

a readii~jof the Third

District’s brief opinion “precisely what kind of permit was

involved”, and the Dean court’s resulting erroneous belief that

the Third District Court’s “comments indicate that it was either

an NPDES.

.

.or

a similar permit which called for a de novo

hearing.”

(Dean, supra, slip op.

at pp. 10—11.)

~FieBoard views

the Waste Mai~iagernentTh~ó1dingsto be as operative in this case as

in lañdpemwit casé~,as the case,

in part,

restates law

developed by the Board since 1972

in various types of non—NPDES

permit appeals.

The purpose

of discovery

is

to produce

information which

is

either itself relevant or which may lead to relevant

information.

Relevance, obviously,

is defined by the issues

before the Board,

and may, perhaps, be

limited by the scope

of

information which may be properly considered by the Board.

Neither Alburri nor Waste Management was cited

to the Hearing

Officer B~t1T~parties,

aria the ffèaring Officer’s Order,

on its

face, does not indicate whether the ruling was made in

recognition

of this controlling case law as

it effects principles

of relevance.

The Board finds

it desirable

to have this record

accurately reflect the basis of

the Hearing Officer’s ruling.

Accordingly,

the motion to strike is remanded

to the Hearing

Officer for reconsideration

in light of

this Order.

Upon

reconsideration,

the Hearing Officer may,

at her option, affirm,

reverse,

or otherwise modify the present ruling on the basis of

the existing pleadings,

or may establish supplemental briefing

schedules,

if such seems desirable, prior

to taking any further

action.

In so ruling,

it

is not the intention of the Board to

either preclude or

to dictate commencement of the July 31 hearing

as scheduled, but instead

to leave

the matter

to the discretion

of the Hearing Officer, who

is more closely attuned

to the

scheduling needs of this action.

The Clerk

of the Illinois Pollution Control Board

is

requested

to advise

the parties of

the entry of this Order by

telephone today,

and to provide service via first class mail.

IT IS SO ORDERED.

71-36

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—4--

B. Forcade and

3.

T. Meyer dissented.

I,

Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that

the above Order was adopted

op

the

~‘,‘

day of ~

_____!

1986, by

a vote of

~

I

~orothy M. G~~Clerk

Illinois Pollution Control Board