ILLINOIS POLLUTION CONTROL BOARD

March

22,

1990

THE GRIGOLEIT COMPANY,

Petitioner,

v.

)

PCB 89—184

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER OF THE BOARD

(by J.

Marlin):

Currently pending before the Board are Grigoleitts motion

for summary judgment, and the Illinois Environmental Protection

Agency’s (Agency) motion to reverse the Hearing Officer’s Order

of February

23, 1990 regarding discovery.

In summary,

this Order

1)

denies the motion for summary judgment

2)

affirms the Hearing

Officer’s Order

of February 23,

1990 and in so doing denies

the

Agency’s motion.

Grigoleit’s Motion For Summary Judgment

Grigoleit filed

its motion for

summary

judgment on March

2,

1990 and the Agency filed its

response on March

12,

1990.

The parties do not dispute the following factual sequence.

Grigoleit mailed its application for permit renewal by certified

mail on July 12,

1989.

The Agency received the application on

July 13,

1989.

The Agency issued

a permit denial on October

11,

1989.

October

11

is the 90th day after July

13,

1989,

but the

91st day after July

12,

1989.

The parties

further agree that Section 39(a)

of the

Environmental Protection Act

(Act)

requires the Agency

to

take

final action within

90 days

“of the filing”

of the application.

The parties’ dispute

centers around the date an application

is

“filed” for the purposes of Section

39.

Grigoleit contends that the

issue

is controlled by Ill.

Rev.

Stat.

1987,

ch.

1, par.

1026,

which in summary provides that

a

writing

is deemed filed when

it

is ma~i1ed, provided competent

evidence of

date of mailing

is produced.

(The competency of

evidence presented by Grigoleit

is not at

issue here.)

Grigoleit

goes on to argue that the

90 day time period of Section 39(a)

of

the Act must be computed pursuant to

Ill. Rev.

Stat.

ch.

1, par.

1012,

to begin the first day after mailing and including the last

day unless that day

is

a holiday which must

be excluded.

Grigoleit contends

then,

that the Agency’s permit denial on

11)9—555

---

October

11 occurred on the 91st day after

the application was

“filed”,

i.e. mailed.

The Agency first argues that the Board cannot entertain

motions for summary judgment pursuant to 35

Ill.

Adm. Code

101.244, which provides:

A motion for summary judgment prior to hearing may be

made by any party

to an enforcement proceeding pursuant

to Title

VIII

of the Act

or a permit appeal pursuant

to

Title X of

the Act.

Specific rules

for such motions

for

summary judgment are found

in 35

Ill. Adm. code 103

(enforcement proceedings) and 35

Ill.

Adm. Code 105

(permit appeals).

The Agency asserts,

correctly,

that the Board has not

adopted “specific rules”

in Part 105.

The Board has,

however,

proceeded to entertain summary judgment motions pursuant to the

general authority granted by Section

26 of the Act,

and

accordingly rejects the Agency’s argument.

As to Grigoleit’s

“mailed is filed” argument,

the Agency

submits that the Board should construe the time limits for Agency

action

in Sections 38,

39,

40,

40.1 and 41 of the Act

in the same

way as it has construed time limits

for Board

action.

In

Interstate Pollution Control

Inc.

v.

IEPA,

PCB 86—19, March

27,

1986,

the Board first adopted a limited version of

the mailbox

rule, which has since been adopted as

Section 101.102(d)

of its

own procedural rules.

(In The Matter Of:

Procedural Rules

Revision,

35

Ill. Adm. Code 101,

106.Subpart

F,

107, Opinion and

Order

of June 8,

1989,

pp.

6,

29—30).

The limited rule as

adopted by the Board provides that initial pleadings permitted by

the above—cited Sections are deemed timely filed when mailed, but

that decision deadlines should be calculated from the date

of

receipt.

The logic of the Board’s ruling was that a litigant’s

ability to proceed with an action should not

be frustrated by

delivery delays beyond the litigant’s control, while

at the same

time the Board’s ability

to timely comply with already

“uncomfortably snug”

decisions deadlines should not be frustrated

by delivery delays beyond

the Board’s control.

This logic

applies equally

to the responsibilities of the Agency.

The

purpose of the time deadlines of Section

39

(and other similar

provisions)

of the Act

is

to insure that applicants

receive

decisions from government within a reasonable time upon penalty

of

issuance of

a permit

by default, but not

to “reward”

applicants by unreasonable truncation of government’s ability to

make

a considered decision.

The Board

finds

the Agency’s denial was timely made

on the

90th day

cf

the filing

i.e. Agency receipt,

of Grigoleit’s

application.

The motion for summary judgement

is denied.

11)q—556

---

—3—

The Hearing Officer Order

of February 23,

1990

The Hearing Officer’s Order of February

23, 1990 disposes of

various Agency challenges

to discovery by Grigoleit.

By Order

off

March

8,

1990,

the Board agreed to review this order.

Relevant

pleadings include Grigoleits February 14 motion

to compel and

February

16 supporting memorandum;

the Agency’s February 23

response;

the Agency’s March

1 motion

to reverse the February

23

Order and March

3 supporting memorandum;

Grigoleit’s March 14

response and memorandum;

a letter from the Hearing Officer dated

March

7, and a transcript of hearing dated March

6.

The Board will not recite

the particulars

of the Hearing

Officer Order and the parties’ arguments in detail.

The Agency

has refused to allow certain deposition questions

to be answered,

and has refused

to provide certain documents,

on

the basis

off an

asserted “predecisional deliberation privilege.”

The conclusion

of

the Hearing Officer

was that:

“The claim of predecisional deliberative decisional

privilege

is not properly raised,

nor

is

it warranted.

To the extent

that such a privilege may be available at

the State level,

the Respondent

has not made the

requisite showing necessary to invoke the privilege.

no case cited by Respondent authorizes any such

predecisional deliberative privilege by

a State

agency.

The privilege claimed has

no basis

in Illinois

case law that the Hearing Officer has been able

to

find.

(Order,

P.

1—2).

No arguments have been

raised which convince the Board to disturb

the Hearing Officer’s Order.

In so ruling,

the Board takes

no

position on the admissibility at hearing of information obtained

through the discovery process.

The Agency’s motion

to reverse is denied.

IT

IS SO ORDERED.

Board Member

B. Forcade concurred.

I,

Dorothy

M. Gunn,

Clerk

of the Illinois Pollution Control

Board hereby certify that

the above Order

was adopted on the

~

day of

_______________

,

1990 by

a

vote of

7

—~)

~

~/2),

~1~j

Dorothy M. ,~/nn,Clerk

Illinois Po-flution Control Board