ILLINOIS POLLUTION CONTROL BOARD
    May 13, 1982
    LAND AND LAKES COMPANY,
    )
    )
    Petitioner,
    )
    v.
    )
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
    )
    PCB 81-48
    Respondent,
    )
    v
    WHITE FENCE FARM, INC.,
    )
    Intervenor.
    ORDER OF THE BOARD (by I. Goodman):
    On March 17, 1982, Land and Lakes Company (Land and Lakes)
    moved to limit discovery and the scope of review at hearing in
    this permit denial appeal. This is not an interlocutory appeal
    of a hearing officer’s order, but rather a motion agreed to by
    the hearing officer and the parties. The intervenor, White Fence
    Farm, Inc., responded on April 14, and the Illinois Environmental
    Protection Agency (Agency) responded on April 15, 1982. Land and
    Lakes was granted the right of reply and did so on May 10, 1982.
    First, Land and Lakes seeks to bar discovery by White Fence
    Farms, Inc. of the Agency’s file pertaining to the development
    permit issued on May 13, 1976, alleging that at prehearing con-
    ferences White Fence Farms, Inc. indicated intentions to introduce
    parts of this file into evidence. Land and Lakes argues that the
    file’s contents are beyond the scope of this Section 40(a) review.
    White Fence Farms, Inc. contends that the Agency included part of
    this file in this proceeding’s record and it is, therefore,
    properly a subject of discovery. If so filed, this indicates to
    the Board that the Agency did rely on the development permit file,
    at least in part, ~thendeciding to issue the permit. Therefore,
    pursuant to Procedural Rule 313, this material is relevant to
    pending action and discovery of the same may reasonably lead to
    admissable evidence. White Fence Farm, Inc. is allowed discovery.
    Secondly, Land and Lakes requests that the scope of hearing
    be defined. Specifically, it would bar White Fence Farm, Inc.
    from submitting into evidence information pertaining to the
    development permit and bar the Agency from introducing additional
    47-19
    2
    information as to the permit issued. Land and Lakes asserts that
    the former involves matters already past review and the latter is
    not premised on the written record, and both are therefore beyond
    the scope of hearing.
    At issue in a permit denial appeal is whether the
    information provided by the applicant to the Agency sufficiently
    proves that issuing the requested permit will not cause a
    violation of the Act or Board Regulations. Always before, when
    deciding the issue of fact or law involved, the Board has limited
    review to the record before the Agency when its decision was made.
    Procedural Rule 502(a) (4) governs the contents of the record,
    requiring that the entire record of the application of the permit
    at issue be filed with the Board. At the very least, the record
    is to include the application, correspondence with the applicant,
    and the denial. In this instance, there is no denial, hut
    instead, an experimental permit. The record is also to include
    any facts material and relevant to the Agency’s decision, which
    existed at the time of decision. County of LaSalle v. IEPA,
    PCB 81—10, March 4, 1982.
    At hearing on a Section 40(a) petition, the parties are to
    use the record, so defined, to forward their respective positions.
    The applicant must verify those parts of the record accredited to
    it, and must persuade the Board that the activities, if permitted,
    would comply with the Act or Board Regulations. The applicant
    may not introduce material not in the record, unless to challenge
    the completeness of the record as filed. Owens-IllinoisL Inc. v.
    IEPA PCB 77—282, February 2, 1978. The Respondent and intervenor
    may attempt by cross—examination or direct testimony to controvert
    the applicant’s facts, offer proof that there was insufficient
    information to otherwise issue the permit, or simply attempt to
    persuade the Board that the facts under review support the
    permitting decision. Oscar Mayer v. IEPA, PCB 78—14, June 8, i~)78.
    The Agency or the intervenor may not introduce material outside of
    the record as submitted to the Board. Like the applicant, they
    may argue that together the record, evidence at hearing, the
    applicable law, and Board regulations support the permit, as
    issued, as necessary and correct to prevent violations of the
    applicable law or environmental harm.
    These holdings remain unchanged. Thus, the applicant may
    supplement the record if it argues that it is incomplete. The
    Agency may offer testimony material to its decision to issue the
    permit, as supported by the written record and the applicable law.
    The intervenor may do the same.
    IT IS SO ORDERED.
    I, Christan L. Moffett, Clerk of the Illinois Pollution
    Control Board, hereby certify that the above Order was ad,ppted
    on the \Z2.4— day of
    ~ ~
    vote of .S-~.
    Christan L. Moffet
    erk
    Illinois Pollution
    rol Board
    47-20

    Back to top