ILLINOIS POLLUTION CONTROL BOARD
August
28,
1986
IN THE MATTER OF
)
AMENDMENTS TO 35
ILL. ADM. CODE
)
R86—lO
211
&
215 ORGANIC MATERIAL
)
EMISSION STANDARDS AND LIMITATIONS
)
FOR SYNTHESIZED PHARMACEUTICAL
)
MANUFACTURING PLANTS.
)
ORDER OF THE BOARD
(by J.
D.
Dumelle):
By Hearing Officer Order dated August 12,
1986,
several
motions regarding the production of documents and the issuance of
interrogatories were referred
to the Board.
These issues have
been raised
in filings dated March 24, April
10,
22 and
24 and
August
4
and 12, 1986.
The April 24,
1986, motion for leave
to
reply
is hereby granted.
In short,
the Illinois Environmental Protection Agency
(Agency)
argues that the information
it seeks
is necessary
to
a
decision
in this matter,
is the type of information required
to
be provided by the Environmental Protection Act,
and is in the
sole possession of Abbott Laboratories.
Abbott contends that the
cost of providing that information
(about $1.6 million)
is
unreasonable and unnecessary.
The Board recently entered an Order
in R82—l4 dated July 11,
1986,
in which
it considered
a similar
issue.
In that Order the
Board
stated:
The Environmental Protection Act
(“Act”)
and
the
Board’s
procedural
rules
provide
various mechanisms
for
gathering
information
in regulatory proceedings.
Section
28 of the
Act
requires
that
the
Board
conduct
public
hearings
and
that
its
decisions
be
made
on
the
record.
Section
5(e)
provides
for
subpoena
power
for
both
adjudicatory
and
regulatory
proceedings.
35
Ill.
Adm.
Code
102.140 and 102.160 authorize the issuance of
subpoenas,
commands
to produce documents and
~the issuance
of
interrogatories.
Notably,
these
subpoenas,
commands
to
produce
and
interrogatories are
to be made in the name
of
the Board either
through
the hearing officer
or the Board
itself.
These mechanisms,
among
others,
are
available
to
the
Board
in
order
to
develop
a
complete
record
for
decision.
72.247
—2—
Other
information
gathering
mechanisms
include questions
at
hearing,
pre—submission
of testimony,
written
inquiries
by
the
Board
or
hearing
officer,
public
comments
and
briefs.
There
is
a
significant
distinction
between
mechanisms
for
gathering
information
in
a quasi—legislative
regulatory
proceeding
and
discovery
in
a
quasi—adjudicatory
adversarial
proceeding.
In
a
regulatory
proceeding,
the
purpose
of
discovery
is
to
develop
a
complete
record
for
the
Board,
while
in
a
contested
case
proceeding,
discovery
is
between
the parties
and
can
be
related
to other
purposes.
The standard and
focus
of discovery
in a regulatory proceeding
should
be
general
relevancy
to
“technical
feasibility and economic reasonableness.”
In
a contested case, relevancy or
the likelihood
that
the
requested
information
will
lead
to
relevant
information
is
the
standard.
Information
obtained
through
discovery
in
a
contested
case
is
not
evidence
unless
otherwise
admissible
and
actually
admitted.
Failure
to comply with discovery requests
in
a contested case can lead
to sanctions, while
in
a
regulatory
context
lack
of
supporting
information can result
in dismissal
or denial
for
inadequacy.
In
the
contested
case
context,
the
forum
“referees”
the discovery
process
that
is ongoing
between the parties,
while
in
a
Board
regulatory
proceeding,
the
Board itself must ensure
a complete record by
requesting information.
The
Board
clearly
has
the
authority
to
issue
interrogatories
in
a
regulatory
context,
and
has
used
this mechanism
in
the
past
(R81—19,
Citizens
Utilities
Site—
Specific, Board Order
of April 10,
1986; R82—
25
Dean
Foods
Site—Specific,
Board Order
of
July
11,
1985,
Hearing
Officer
Order
of
September
16, 1985;
R82—14 RACT III
—
Heatset
Web Offset Printing,
Board Opinion and Order
of
May
30,
1985,
Hearing
Officer
Order
of
September
10,
1985).
Interrogatories
are
just
one
tool
the
Board
may
use
to
gather
information.
Perhaps
the
term
“interrogatory”
is
an unfortunate word choice
in
that
it
can
connote
an
adversarial
process.
While Board rulemakings are
formal
72-248
—3—
proceedings
(hearings are transcribed,
cross—
examination occurs,
decisions are made on the
record
and
comment
periods
are
allowed),
it
is not appropriate
to allow matters
to become
too procedurally adversarial.
The Board
shares with the Agency
a desire for
a complete
record and
an expeditious decision
in this matter
to assure
approval of
the State Implementation Plan.
However,
the Board is
unconvinced
that compelling
the production of documents and the
answering of interrogatories
as requested is the best means
to
achieve those results
at this time.
So far,
there
is nothing
in
the record other
than the proposal and various pleadings.
It is
premature
to require Abbott
to respond to detailed discovery at a
cost which
it alleges to
be $1.6 million when the only stated
basis
is that such information
is
required pursuant to
a rather
generally worded USEPA proposal to disapprove.
The Board agrees
with
the Agency that the Board must “possess sufficient
information
such that a clear
and complete record can be made on
this matter.”
(March 24, 1986 motion for production,
p.
2).
The
Board also agrees that the requested information would
be
sufficient, but
it
is also concerned that such detail may not
be
necessary.
As the record develops in this matter,
it will be
much easier
for the Board,
in response to any renewed request
from the Agency or any other participant,
or
on its own motion
to
determine what additional information
is necessary,
if any,
and
the Board
could order
such additional information later
in this
proceeding should
the need arise.
Nowhere does the Agency question Abbott’s estimate of the
cost
to complete the requested discovery.
In its August 12,
1986,
response the Agency does contend that
“no cost
is caused
this company
in answering these interrogatories,
for
this is
information which must otherwise be” provided under the Act and
will
be required
in future permit applications.
(Response,
p.
1).
However,
there
is nothing
in the Act or Board rules which
requires that information to be presented
in this proceeding
(absent
a Board order);
if that information
is
in fact required
for future permit applications,
it can be generated over the next
few years
rather than the next
28 days; and the question of
whether such detailed information
is necessary may be appealed
to
the Board when required.
For all
of these reasons,
the Board
finds
this argument less than compelling.
The Board also understands the Agency’s fear that
it may not
be able to present adequate support for its proposal
if Abbott,
which
is the only affected facility
in the state,
is allowed
to
present only that information it desires and only when it desires
to present
it.
The Agency alleges that this is what happened in
the predecessor proceeding
(RACT
II)
in 1980—1982.
The Board
believes, on balance, that this potential problem can be
mitigated by requiring Abbott
to submit any testimony
it desires
72.249
—4—
to make part
of the record at least
21 days prior
to hearing at
which Abbott desires
to present such evidence and barring Abbott
from subsequently introducing any other evidence into the record
which
is opposed.
This should allow the Agency ample opportunity
to examine the evidence presented and to rebut
it or
to
demonstrate
its incompleteness.
If,
at a later date,
this
procedure proves unacceptable, the Agency may
renew its discovery
request and the Board may take additional appropriate actions.
The motions
to compel and produce are hereby denied and the
motion for
a protective order
is hereby granted.
However, Abbott
is required to pre—submit any evidence
it desires
to enter
into
this record at least 21 days prior
to the hearing at which it
is
presented and
is barred from later entering any other information
into the record which is objected
to.
IT IS SO ORDERED.
I, Dorothy
14.
Gunn, Clerk of
the Illinois Pollution Control
Board, hereby certify that
tJ~,e above Order was adopted on
the
~
day
of
(2~~.jX
,
1986 by a vote
of
~
.
Dorothy M. ~nn,
Clerk
Illinois Pollution Control Board
72-250