ILLINOIS POLLUTION CONTROL
    BOARD
    February
    9,
    1q84
    ILt~INOISENVIRONMENTAL
    PROTECTION AGENCY,
    Complainant,
    v.
    )
    PCB 81—18
    CATERPILLAR TRACTOR
    CO.,
    a California Corporation,
    )
    Respondent.
    ORDER
    OF THE BOARD
    (by J.
    I).
    Dumelle):
    On November
    17,
    1983 the hearing officer
    in this matter
    certified for review by the Board that portion of his November
    3,
    1983 order which denied Caterpillar Tractor Company’s general
    objection to the Illinois Environmental Protection Agency’s
    August
    12,
    1983 interrogatories.
    On November
    29,
    1983
    Caterpillar filed
    a motion requesting that
    a briefing schedule
    be set.
    That motion was granted on December
    1,
    1983 and the
    briefing schedule was ordered as requested.
    Caterpillar
    filed
    its
    brief on December
    12,
    1983 and the Agency filed
    its brief on
    December 30,
    1983.
    Caterpillar has stated
    its “general ob-~ection”as follows:
    Caterpillar objects
    to these discovery requests as
    untimely,
    and as not being calculated to lead to discovery
    of relevant information
    for the reason that it
    is admitted
    that Caterpillar had obtained the permit alleged by the IEPA
    to be required and that therefore,
    no penalty
    is appropriate.
    In other words Caterpillar is claiming that no information would
    be relevant unless
    it pertains
    to the penalty issue and that no
    penalty can legally be imposed.
    The Board affirms the hearing officer’s ruling and rationale.
    Caterpillar has not admitted that a permit was necessary and
    the determination of that
    issue
    is at least in part a question
    ot~ fact.
    Further, Caterpillar’s subsequently granted permit
    does not in and of
    itself preclude the imposition of
    a penalty.
    56-125
    2
    While this case may,
    as Caterpillar alleges, stand “on all fours”
    with Harris—Hub
    v.
    IPCB,
    30
    Ill, App.
    3d 608
    (1st District,
    1977),
    the question of whether Caterpillar was merely in
    “technical non-compliance”
    is also a question of fact.
    Where
    questions
    of fact remain, discovery is clearly appropriate.
    Further,
    the
    case
    is
    not,
    as
    Caterpillar
    alleges,
    moot
    in that the above-noted issues
    remain.
    If
    Caterpillar
    desires
    to
    admit the necessity of a permit,
    it has every right to do so,
    but until
    it does,
    the issue remains,
    and even
    if such admission
    is made,
    the question of
    a penalty remains.
    These are not
    “abstract questions’
    devoid of ~any practical
    legal etfecL on
    the controversy”
    Betts
    ~
    Ill. App.
    3d 168,
    171
    (1st
    District,
    1982)3.
    Finally, while the Board fails to understand the two
    year delay in discovery
    in this matter,
    there is no indication
    that either party has proceeded diligently or that any prejudice
    has resulted from the delay.
    The objection to the hearing officers’ order regarding
    interrogatories which was certified to the Board on November
    17,
    1983,
    is hereby denied,
    IT IS SO ORDERED.
    Board Member J. Theodore Meyer dissented.
    I, Christan L, MoffeLt, Clerk of the Illinois Pollution
    Control
    Boaiçd hereby certify that the above Order was adopted on
    the _______________day of
    _____________________,
    1984 by a
    vote of
    (..~—/
    *
    Christan L.
    Moffett, Clerk/I
    Illinois Pollution ControlLBoard
    56-126

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