BEFORE THE ILLINOIS POLLUTION CONTROL ~
ILLINOIS AYERS OIL CO.,
DEC 1 2003
Petitioner,
)
cTATE OF ILLINOIS
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v.
)
PCB 03-214
(TJST Appeal)
J~J~
ILLINOIS ENVIRONMENTAL
)
MW ~5 2C~3 ~d
PROTECTION AGENCY,
)
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Respondent.
)
Ofl
Control
Ero~r~j
NOTICE OF
FILING
MtD PROOF OF SERVICE
TO: Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph Street
State of Illinois Building, Suite 11-500
Chicago, IL 60601
Carol Sudman
Hearing Office
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL 62794-9276
John Kim
Division of Legal Counsel
Illinois Environmental
Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
PLEASE BE ADVISED THAT we are today filing with the Pollution
Control Board the original and four copies of Emergency Motion to
Compel Discovery and Notice of Hearing, a copy of which is attached
hereto.
The undersigned hereby certifies that a true and correct copy
of this Notice of Filing, together with a copy of the document
described above, were today served upon the hearing officer and
counsel of record of all parties to this cause via facsimile
transmission and by enclosing same in envelopes addressed to such
attorneys at their business addresses as disclosed by the pleadings
of record herein, with postage fully prepa-id, and b depositing same
in the U.S. Mail in Springfield, Illin~~on t 26 day of
November, 2003.
MOHAN,
ALEWELT, PRILLAMAN &
ADAI’41
1 North Old Capitol Plaza, Suite 325
Springfield, IL 62701
(217) 528-2517
THIS FILING SUBMITTED ON RECYCLED PAPER
P:\MAPA\CDAVIS\Illinois Ayers Oil\Emergency Motion
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BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
ILLINOIS AYERS OIL CO.,
Petitioner,
v.
)
PCB 03-214
(UST Appeal)
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
EMERGENCY MOTION TO COMPEL DISCOVERY
NOW COMES Petitioner, ILLINOIS AYERS OIL CO., by its
undersigned attorneys, pursuant to the Rules of the Illinois
Pollution Control Board (“the Board”), and hereby requests an
emergency motion to compel discovery and states as follows:
1. On or about March 28, 2003, the Agency rendered its
final determination on Petitioner’s HPCAP and proposed budget for
corrective action costs, modifying both the HPCAP and the
proposed budget, primarily reducing the hourly rates charged by
the consultant, and the estimated hours required by the
consultants to complete the tasks.
2. On or about May 3, 2003, Petitioner filed a notice of
appeal of the Agency’s March 28, 2003 final determination.
3. The matter is set for hearing for December 3, 2003.
4. On or about October 30, 2003, Petitioner filed discovery
requests, calling for documents to be produced for inspection and
copying, to which the Agency responded on November 20, 2003,
supplying only one document, and objecting to the majority of the
requests made. Copies of the Agency’s Response to Petitioner’s
First Set of Interrogatories and the Agency’s Response to
Petitioner’s First Request to Produce Documents are attached
hereto as ExhibiLs 1 and 2, respectively. Petitioner requested
documents that it identified in its Request to Produce Documents
and that the Agency identified in its Response to Petitioner’s
First Set of Interrogatories.
5. On November 24, 2003, Petitioner again requested that
the Agency produce documents as more specifically set forth on
Exhibit 3, attached hereto. At yesterday’s deposition of Agency
personnel a January 2003 “Rate Sheet” was produced, but redacted
to show only five (5) line items; no other documents responsive
to the requests were produced.
6. Specifically, the Agency has wrongfully refused to
produce the documents requested on unfounded grounds:
“It is not a ground for objection that the
testimony will be admissible at hearing if the
information sought appears reasonably calculated to
lead to the discovery of admissible evidence or is
relevant to the subject matter involved in the pending
action.”
35 Ill. Adm. Code Section 103.161(a);
Illinois
Supreme Court Rule 214.
“‘Discovery before
trial’ presupposes a range of relevance and materiality
which includes not only what is admissible at the
trial, but also that which leads to what is admissible
at the trial.” Kru~pv.
Chicago Transit Authority, 8
Ill.2d 37, 41
(1956)
7. This appeal presents the question of whether the
Agency’s modification of the proposed HPCAP and budget is
reasonable and, as part of the reasonableness inquiry, whether
the bases of the Agency’s decision (including the generation of a
“rate sheet” from random sampling) are valid. By rejecting
certain items, estimated time, and hourly rates in this budget as
“unreasonable,” the Agency is implicitly and necessarily invoking
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a standard, rule, policy or guidance of some kind, since by its
very nature the term “reasonable” is a relative term, and must,
therefore, relate to something. It is that “something” that is
used by the Agency to determine reasonableness that Petitioner
has a right to know.
8. As to the subject of Paragraph 4(c) of Petitioner’s
Request to Produce (the “LUST Managers’ Handbook”), the Agency
refuses to produce it for invalid reasons, claiming that the
request of “overly broad,” and “unrelated and irrelevant to the
present appeal,” and that the document is not required for
review, and is not used in review. However, the Agency has
consistently reported to the USEPA that it has issued to its LUST
Managers, for administration of the various LUST programs, a
“LUST Managers’ Handbook,” which it describes as a “comprehensive
guidance manual for project managers.”
9. In addition, at yesterday’s depositions, Brian Bauer
testified that the “LUST Managers’ Handbook” and “IRT 500.003”
(the latter being described in the one-page exhibit attached to
the Agency’s response to Petitioner’s First Request to Produce
Documents as a document which “explains the process for reviewing
an excessively submitted budget and gives allowable line items
and unit costs”) are documents that he, as a LUST project
manager, doesn’t always review because he is already familiar
with them, but which the newer LUST project managers, less
familiar with their terms, do review. Carol Hawbaker, who was
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the project manager on the subject budget review, has only been
with the Agency ~or a little over 3 years.
10. In light of the above, it is clear that LUST project
managers have been instructed to use manuals containing guidance
and policies in connection with their administration of LUST
programs, including the program which is the subject of this
appeal. Clearly, the “LUST Managers’ Handbook” and “IRT
500.003,” as amended from time to time, if not directly relevant,
could lead to relevant information, and therefore are
discoverable. For example, even though the Agency may assert
that the “LUST Managers’ Handbook” and/or “IRT 500.003” were not
used by the person who reviewed the file in this appeal (Ms
Hawbaker), the documents themselves may disclose that they should
have been used, or that j~.they had been used, the result may
have been different. There is no way to tell until we receive
and review the documents.
11. Moreover, the Board has previously overruled the
Agency’s objections to these same or similar categories of
requested documents in the case of Brunetto Brothers Mobil v.
IEPA, PCB 95-168, in which case the Agency’s “Emergency Motion to
Hearing Officer for Protective Order and Request to Limit
Discovery” was denied on March 4, 1996 by Hearing Officer Michael
Wallace, and the Agency was ordered to produce the requested
documents on the strength of Petitioners’ “Objection to Agency’s
Emergency Motion for Protective Order” in that case.
-4-
12. The request to produce these documents is an entirely
legitimate request, since the regulated public has a right to
know by what rules, standards and policies its LUST budgets are
being judged. To the extent that the requested documents may
provide guidance relating to reasonableness of corrective action
costs, they must be produced, since they are either relevant or,
at the very least, could lead to relevant evidence in this
appeal.
13. As to the subject of Paragraphs 1(c) and 1(d) of
Petitioner’ Request to Produce (“Agency policy and guidance
memos”), such policy and/or guidance is contained in the LUST
Managers’ Handbook and in “IRT 500.003,” at the very least; but
to the extent that they are contained elsewhere, and to the
extent that they may provide guidance relating to reasonableness
of corrective action costs, they must be produced, since they are
either relevant or, at the very least, could lead to relevant
evidence in this appeal.
15. As to the subject of Paragraph 1(e) of Petitioner’s
Request to Produce (“data bases and/or schedules or summaries of
rates, fees, charges and/or expenses”), attached hereto as
Exhibit 4 is an excerpt from the transcript of hearing in
Southern Food Park v. IEPA, PCB 92-88, in which the parties
stipulated and agreed that a data base containing rate
information used by the Agency in determining reasonableness
could be used for a limited purpose, but no effort was made to
enter it into evidence and no ruling of any kind was made on
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either its discoverability or admissibility, except for the
ruling at page 158, wherein the hearing officer ordered the
Agency to produce a computerized printout of reimbursable rates
and charges, and at page 206, wherein the hearing officer ordered
the Agency to produce~ “memoranda, letters, whatever” having any
bearing on determinations of reasonableness.
16. In connection with the requested data base, Brian
Bauer, who is identified in the Agency’s Answers to
Interrogatories as being the person who prepared the data base,
testified in yesterday’s deposition that the date base that he
used to prepare the rate sheet that was used by the project
manager (Ms. Hawbaker) in this case is still on his computer.
Therefore, it is very easily retrievable, within a few minutes’
time, and should be produced, even if subject to an j~camera
review, since the entire question of how the Agency prepared the
data base and, from it, generated the rate sheet that was used in
this case, and the validity of the statistical methods employed
in doing each, are at the heart of this case and must be brought
out into the open and tested for accuracy. Otherwise, the Agency
is being allowed to simply impose an arbitrary, untested,
standard to the Petitioner in this case.
17. Also attached hereto as Exhibit 5 is an excerpt from
the transcript of hearing in Owens Oil Co. v. IEPA, PCB 98-32,
wherein the hearing officer ordered the Agency to produce the
LUST Project Manager’s Handbook and documents having any bearing
on determinations of reasonableness.
-6-
18. The standards or criteria by which Petitioner’s
challenged rates were judged may be contained in these data bases
or schedules compiled from data received, openly and publicly, by
the Agency over time. These documents could lead to relevant,
admissible evidence in this case on the question of what the
Agency considers to be reasonable, how it compiled the statistics
and generated the rate sheet, and how it makes a determination as
to what is reasonable.
19. It would be significant to know if Agency personnel
providing this review deviated from generally accepted
established procedure or protocol, if such persons were not
properly qualified or trained, or if they were acting outside of
their areas of responsibilities. Subjective determinations made
by such persons under such circumstances as to what is
reasonable, would be subject to serious question, would certainly
be relevant or could lead to relevant information, and therefore
all items requested bearing on those issues are appropriate to
review during discovery.
Petitioner, ILLINOIS AYERS OIL CO., respectfully requests
that the Hearing Officer convene an emergency hearing in
Springfield at 8:30 a.m. on Wednesday, December 3, 2003, to hear
further arguments of counsel, if any, and to decide the issues
presented in this motion. Petitioner respectfully requests that
its motion be allowed in its entirety, and that the Agency be
required to produce all of the requested items reasonably in
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advance of the hearing presently scheduled to take place at 9:00
a.m. on Wednesday, December 3, 2003.
Respectfully submitted,
ILLINOIS AYERS OIL CO., Petitioner
By MORAN
By
MORAN, ALEWELT, PRILLAMAN &
ADAMI
1 North Old Capitol Plaza, Suite 325
Springfield, IL 62701
Phone: (217) 528-2517
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aman