ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    August
    10,
    1984
    Petitioner,
    )
    PCB
    84~45
    )
    84~6l
    ILLINOIS
    ENVIRONMENTAL
    )
    84~68
    PROTECTION
    AGENCY,
    CONCURRING
    STATEMENT
    (by
    B.
    Forcade):
    I
    agree
    with
    the
    majority
    Order
    as
    written
    on all issues,
    save the ruling on attorney~clientprivileges
    On that issue,
    I
    believe additional explanation is needed~ The
    Agency
    claims
    that
    notes of a April
    12,
    1984, meeting between the Agency and
    the
    Attorney
    General~soffice are subject to attorney-client
    privilege and
    not
    discoverable
    or admissable as evidence,
    Waste
    Management disagrees.
    The chronology
    and substance of
    these
    three cases is very important
    in
    understanding
    the
    issues.
    Each
    of the three
    cases
    involves groundwater
    or
    groundwater monitoring
    for the ESL site.
    The first case,
    PCB
    84-45,
    concerns the supplemental permit
    for an
    expanded groundwater monitoring program.
    The
    permit was
    issued
    with conditions about
    March
    2,
    1984,
    and
    Waste Management
    appealed certain conditions in that
    permit to this
    Board on April
    9.
    About
    April
    20,
    the Agency denied an operating permit
    for
    Trench
    11, claiming,
    in
    part,
    that
    monitoring results
    required by
    the supplemental permit challenged
    in PCB 84-45 had
    not
    been
    submitted,
    Waste Management appealed the denial of the
    operating
    permit for Trench II on May
    25 in PCB 84-61.
    About April
    30,
    the
    Agency denied supplemental permits for certain waste streams at
    ESL,
    claiming,
    in part,
    the same
    lack of monitoring data
    required
    by the permit appealed in PCB 84-45.
    Waste Management appealed
    denial of the supplemental waste stream permits on June 4,
    in
    PCB
    84—68.
    Thus,
    the controversial April
    12 meeting between the Agency
    and the Attorney General~soffice took place after the permit
    appeal in PCB 84-45 had been filed but before the Agency made the
    permit decisions in PCB 84~6land 84—68.
    ~o
    further complicate
    this matter, part of the Agency~sreasons for denial
    of
    the
    permits appealed in 84-61 and 84-68 was the claimed failure to
    submit monitoring required by the permit appealed ~n 84-45.
    To
    the extent that the majority order attempts to separate
    matters
    pertaining to 84-45 from the ~‘facts~in 84—61 and 84—68,
    it
    forces the hearing officer to unravel the Gordian knot,
    The issue before the
    Board
    today
    is one of
    discovery and it
    is
    presented with little factual specificity.
    It
    is
    likely the
    Board will again face this issue when,
    at hearing,
    attempts are
    made
    to introduce the products of this discovery into
    evidence.
    The
    Agency has asserted that post-decisional
    discussions
    between
    attorney and client merit a privilege of
    non-disclosure.
    Waste Management
    has extensively argued that
    pre—decisional
    communications may not be confidential.
    Neither party
    has argued
    the facts of this case:
    one communication that was both
    pre-
    decision and post—decision.
    ~ich
    legal principle prevails?
    Hopefully,
    final briefs will provide the Board some guidance
    in
    choosing between the rock and the hard place.
    I, Dorothy M.
    Gunn,
    Clerk of the Illinois Pollution
    Control
    Board,
    hereby certify that the above Concurring Statement
    was
    submitted
    on the
    /~~-/t1J~day of
    ~
    1984.
    L
    ‘
    ~rk
    Illinois Pollution Control
    Board
    Board Member
    59~34O

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