ILLINOIS POLLUTION CONTROL BOARD
May 19,
1988
AMEROCK CORPORATION,
Petitioner,
v.
)
PCB 87—131
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by
.3.
Marlin):
This matter comes before the Board on
a Motion
to Clarify
Issues filed
by Amerock Corporation
(Amerock)
on May 4,
1988.
Amerock requests
that
the Board
issue
an order
that requires
Amerock
and
the Illinois Environmental Protection Agency (Agency)
to clarify
issues,
through briefs, concerning
a discovery request
by the Agency
to which Amerock objects.
The Agency filed
a
Response
to Amerock’s motion on May 13,
1988. ****On May
18,
1988, Amerock
filed
a Reply.
Since
the Board’s procedural
rules
do not provide
for such
a reply, the Board has not considered
Amerock’s May 18th filing.
In
its discovery request,
the Agency
asked for****
specific information as
to the financial status of
Arnerock
as
a business.
According
to Arnerock,
the Hearing Officer, at hearing,
instructed Amerock
and
the Agency
to resolve
the discovery
matter; Amerock asserts
that this issue has not been resolved.
The Agency contends
that the Hearing Officer ordered Amerock
to provide “sufficient” economic information
to the Agency and
that Amerock has refused
to provide anything.
It
is the Agency’s
position that Amerock
is seeking
to circumvent
the Hearing
Officer’s
ruling by filing the May 4th motion with the Board.
****Gjven what transpired
on record
at hearing,
the Board
does not construe Amerock’s motion as appeal of**** the Hearing
Officer’s ruling made at hearing.
Rather,
it appears
that
Amerock
is merely requesting
an additional opportunity for both
sides
to argue
this discovery
issue.
Normally,
such
a motion
would
be handled
by the Hearing Officer.
However, since the
Hearing Officer
is out of the country
until the end of this
month,
the Board will address
the motion in an effort
to expedite
this proceeding.
The Board disagrees with the Agency that the Hearing
Officer’s
ruling precludes Amerock’s motion.
It
is apparent from
the record,
that the Hearing Officer
left
it up to the parties
to
work out the discovery problems.
~lthough
the Hearing Officer
89—247
2
denied Amerock’s motion
for
a protective order,
which would have
precluded
the Agency from obtaining any economic information,
the
Hearing Officer stated:
I
do
feel
that
the
State
the
Agency
has
asked
for
information concerning,
it
appears
to
me,
would
lead
to
a
discussion
of
the
economic
condition
of
the
Appellant’s
stockholders
and
goes
beyond
what
is
appropriate
for
the State or
for the Board
to
determine the economic condition
of those who
have
invested
in
the Appellant.
However,
I
do believe
that
the Appellant must,
if
it
is
to
proceed
with
an
argument
of
economic
hardship,
produce sufficient evidence so that
the Board has before
it the date necessary
to
resolve the issues reached by the parties,
if
it
is
their
belief.
However,
therefore,
I
believe
the Appellant must supply data which
can be determined
by modifying
the request
of
the
Environmental
Protection
Agency
in
a
post—trial
discussion
between
the
two
attorneys,
and
be
added
to
the
report
at
a
later
time.
I
would advise you, Mr.
Steger,
that
the
data
to
be
presented
must
be
sufficient,
not just
to
show
that the amount
of
money
requited
to come
into compliance
is
unreasonable
in
the
light
of
the
present
discharges,
but also
that
it
is unreasonable
in
the light
of the economic viability of the
Appellant
which
may——probably
does——violate
your
concept
of
the
parameters
of
economic
hardship.
Are
the
parties
prepared
to
get
together
at
a
later
time
rather
than
to
extend
this hearing
to
discuss what evidence
you
wish
to
add
to
the
record
on
the
Appellant’s economic condition?
(R.
12—13)
Later
in the hearing,
the Hearing Officer also stated:
My
understanding
of
the
rules
and
the
decision we’ve made
so
far
is that the
two of
you
will
get
together
to
see
if
the
record
can
be
augmented
concerning
the
financial
status
of
Amerock,
without
your
objection.
Anything
you
think
you
shouldn’t
submit,
obviously, you have the right to resist.
CR.
41)
Consequently, while Amerock was
to submit some economic
information,
the scope of
that information had
to be agreed upon
89—248
3
by both parties.
Obviously,
no agreement has been reached.
The Board finds
that
it would be useful
to require the
parties
to brief
the specifics with regard
to the Agency’s
discovery request.
Amerock
is hereby ordered
to file
a brief
detailing
its objections
for each item sought by the Agency’s
March
4,
1988 discovery request.
This includes the Agency’s
interogatories
as well
as
its request
for documents.
Similarly,
the Agency shall file
a response brief which argues,
for each
item requested,
reasons why its request should be granted.
In
addition,
the briefs
should cite any relevant caselaw as well as
statutory or
regulatory authority which would aid
in the
disposition of this
issue.
Amerock’s brief
is due June
6,
1988,
and the Ageny’s brief
is due June
20,
1988.
After considering
the briefs,
the Hearing Officer
shall
rule upon the Agency’s
discovery request.
The Board,
by this Order,
is not taking any substantive
position concerning
the Agency’s discovery request.
At this
point
in
this proceeding,
it
is
the role
of the Hearing Officer
to
resolve the discovery controversy.
Today’s order merely helps
that process
along given the temporary absence of
the Hearing
Officer.
IT IS SO ORDERED.
I,
Dorothy M.
Gunn,
Clerk of
the Illinois Pollution Control
Board,
hereby certify
that the above Opinion and Order was
adopted on the
/7~
day of
________________,
1988,
by
a vote
of
7—a
~4
~.
Dorothy
~.
Gunn,
Clerk
Illinois Pollution Control Board
89—249