ILLINOIS POLLUTION CONTROL BOARD
March 2, 1978
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB 77—157
DECATUR SANITARY DISTRICT,
)
A.E. STALEY MANUFACTURING COMPANY, a
)
Delaware corporation, and
)
ARCHER-DANIELS-MIDLZ~.NDCOMPANY, a
)
Delaware corporation,
Respondents.
INTERIM OPINION
AND
ORDER OF THE BOARD (by Mr. Goodman):
On November 23, 1977, the Board granted the Illinois Environ-
mental Protection Agency (Agency) leave to file an Interlocutory
Appeal regarding two Orders of the Hearing Officér herein. On
September 19, 1977, the Hearing Officer ordered the Agency to
answer the Interrogatories filed by Respondent Archer-Daniels-
Midland Company (ADM), and on September 29, 1977, the Hearing
Officer ordered the Agency to completely answer Interrogatories
2 through 8 of those propounded by A.E. Staley Manufacturing
Company (Staley). The Board has received and considered briefs
on the issues submitted by the Agency, Staley, and ADM.
In its November 23, 1977 Order granting the Agency leave to
file the Interlocutory Appeal, the Board ordered the Agency to
specify the issues upon which its appeal was based. In response,
the Agency presented the following issues: (1) whether Respond-
ent Staley’s interrogatory #2 is beyond the scope of discovery,
(2) whether the documents submitted by the Agency properly answer
Respondent Staley’s interrogatories 3 through 8, (3) whether
Respondent Staley’s interrogatories must be answered under oath
by an officer or employee of the Agency, and (4) whether Respon-
dent ADM’s interrogatories 2, 3, 4, 7, 8, 11, 15, and 16 are
beyond the scope of discovery.
29—285
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With regard to issue 3, the Agency states in its brief that
it has no objection to verifying its answers to Staley’s interroga-
tories by an authorized officer/employee of the Agency. Since
there is no longer a controversy concerning this issue, the Board
finds it moot and will therefore consider it no further.
Sta1ey~s Interrogatory #2 states;
“2. For each expert witness identified in answer to
interrogatory #1, state in detail each and every
opinion the expert will advance on behalf of the
Agency and state in detail all facts upon which
the opinion is based.”
The Agency responded to the second part of the question by sub-
mitting a mass of documents to Staley and objected to the first
part of the question as being beyond the scope of discovery. As
authority for its objection, the Agency cites the Second District
Appellate Court decision in Illinois Building Authority v.
90 Ill.App.2d 451 (1967) In Dembinsky, the Court held
that a condemning body was not entitled to discover during a depo-
sition the landowner’s opinion testimony as to the highest and
best use of the land. The Agency suggests that this case stands
for the proposition that discovery of expert opinion testimony is
beyond the allowable scope of discovery. The Agency furthermore
contends that the interrogatory in dispute does not call for the
discovery of information already reduced to writing and would
re-
quire the Agency to prepare and submit its expert testimony far
in advance of hearing. The Agency suggests that Staley depose
the experts identified in the answer to the first interrogatory
rather than seek the information throuqh this broad interrogatory.
In response, Staley contends that ~
not only turns
on a unique fact situation but is no longer the law in the State
of Illinois. Staley cites the decision of the Illinois Supreme
Court in Department of Transportation v, Western National Bank
of Cicero, 63 Ill.2d 179 (1976), in which the Court upheld the
~EFiI1
court’s determination that an appraisal report detailing
the appraiser’s opinions was discoverable in an eminent domain
proceeding. Staley furthermore alleges that the direct deposi-
tion of Agency experts is unreasonably burdensome and unnecessary.
It is the Board’s policy that, provided it is not being pur-
sued in order to cause unnecessary delay, discovery in enforce-
mont cases should be as wide as possible with respect to the facts
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286
3—
of the case in order to allow the issues to be developed as fully
as possible by the parties. This policy is consistent with that
of the Illinois courts. Monier v. Chamberlain, 35 Ill.2d 351
(1966). The Board, therefore, finds that it is reasonable to
require the Agency to reveal the opinions of its expert witnesses
and submit the factual bases for those opinions without requiring
Respondent to depose each expert separately. Furthermore, as will
be discussed below, we find that, if documents are produced as
part of the answer to an interrogatory, it is reasonable to expect
the Agency to specify which document is presented in substantiation
of a particular opinion.
In answer to Staley’s Interrogatories 3 through 8, the Agency
has presented some 400 pages of documents, referring in addition
to the list of experts produced in answer to Interrogatory #1.
Staley objects to this form of answer arguing that supplying a mass
of documents in lieu of a specific answer is not responsive to the
discovery request. The Agency points to Supreme Court Rule 213(d),
which states, in effect, that if an answer to an interrogatory may
be obtained from documents, it is sufficient answer to specify those
documents and to afford the party serving the interrogatory reason-
able opportunity to inspect the documents. Staley argues the rule
is limited to instances where an answer may be obtained from the
documents and the answering party specifies which documents are
responsive to the particular interrogatory. The Board finds that
the Agency’s production of an incoherent mass of documents as its
answer to Interrogatories 3 through 8 is not responsive. If an
answer to an interrogatory is clearly contained in a document,
either totally or partially, there can be no objection to the
use of the document in the answer. The key word here is “clearly”.
If the Agency is going to use documents in its answer, it must
indicate which document is responsive to a particular interroga-
tory. In addition, if the answer to the interrogatory is not
obvious upon a reading of the document, it is reasonable to ex-
pect that the document will be accompanied by an explanatory
statement. It is the Board’s intention to make a determination
based upon the fully developed facts of the case. It cannot do
so unless both parties are fully informed as to these facts.
Having disposed of the third issue, above, the Board now
considers ADM’s Interrogatories 2, 3, 4, 7, 8, 15 and 16. The
Agency objected to all of the above listed interrogatories as
being beyond the scope of discovery in that they called for
legal conclusions or opinions.. The Board agrees. The Board finds
that the interrogatories in question either call for legal conclu-
sions or are irrelevant. Listing of statutes or Board Rules and
29
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287
—4—
Regulations not involved in
the complaint adds nothing to this
proceeding. The Board will therefore overrule the Hearing Off-
icer’s Order of September 19, 1977 insofar as it requires the
Agency to answer Interrogatories number 2, 3, 4, 7, 8, 11, 15 and
16, as propounded
by ADM
on August 24, 1977.
ORDER
1. The Order of the Hearing Officer of
September
27, 1977 is hereby
affirmed, and
the Illinois
Environ-
mental Protection Agency shall answer the Interroga—
tories filed by A.E, Staley Manufacturing Company
consistent with the Opinion
herein.
2.
The Order of the Hearing Officer of September
19, 1977 is hereby overruled to the extent that it
orders the Illinois Environmental
Protection
Agency
to answer Interrogatories
numbers
2, 3, 4, 7, 8,
11,
15 and
16 as propounded
by Archer-Daniels-Midiand
Company on August 24, 1977.
IT IS SO ORDERED.
I, Christan L. Moffett, Clerk of the Illinois
Pollution Control
Board, hereby certify the above InteTirr. Opinion and Order were
ado~edon the~ day of~J,
1978 by a vote
Christan
L. Moff
Clerk
Illinois Poilutio ontrol Board
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288