BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
RECEIVED
CER~’~OTF~
ILLINOIS AYERS OIL COMPANY,
)
)
OEC~82OO3
Petitioner,
)
)
STATE OF ILLINOIS
v.
)
PCB
No. 03-2 14
Pollution Control Board
)
(LUST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING AND PROOF OF SERVICE
TO:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph, Suite 11-500
Chicago, IL 60601-3218
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O.Box 19274
Springfield, IlL 62794-9274
John Kim
Illinois Environmental Protection Agency
Division ofLegal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
PLEASE TAKE NOTICE that on December
5,
2003, we sent to the Clerk ofthe Illinois
Pollution Control Board the originals and nine (9) copies each, via Federal Express, of
Petitioner’s Motion for Interlocutory Appeal from Hearing Officer Order and for Expedited
Review Emergency Motion for Stay for filing in the above-entitled cause, copies ofwhich are
attached hereto.
The undersigned hereby certifies that true and correct
together with copies ofthe documents described above,
and the Respondent via hand delivery, on the ~
MOHAN, ALEWELT, PRILLAMAN &
1 North Old Capitol Plaza, Suite 325
Springfield, IL 62701
Phone:
(217) 528-2517
Notice ofFiling,
Hearing Officer
THIS FILING SUBMITTED ON RECYCLED PAPER
F: \Mapa\CS~ Environmental\Mot±onlnterlocutoryAppeal.wpd
sew 12/5/03
B 2003
~.
ur
LLU~OlS
BEFORE THE POLLUTION CONTROL BOJ~RD
j~tonControl B0~d
OF THE STATE OF ILLINOIS
ILLINOIS
AYERS OIL COMPANY,
)
)
Petitioner,
)
)
v.
)
PCBNo.03-214
)
(LUST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR INTERLOCUTORY APPEAL FROM HEARING
OFFICER ORDER
AND
FOR EXPEDITED REVIEW
NOW COMES Petitioner, ILLINOIS AYERS
OIL
COMPANY, by its undersigned
attorneys,
pursuant to Sections 101.500, 101.504, 101.512, and 101.518 ofthe Board’s
Procedural Rules, 35
JAC
101.500, 101.504, 101.512,
and 101.518, and for its Motion for
Interlocutory Appeal
from
Hearing Officer
Order and for Expedited
Review thereof, states as
follows:
INTRODUCTORY MATTERS
1. The Hearing Officer Order which is the subject ofthis motion (hereinafter “the subject
Order”) was entered on December 2, 2003, and is attached hereto as Exhibit A.
2. The subject Order denied Petitioner’s Emergency Motion to Compel Discovery
(hereinafter “Petitioner’s motion”) filed on November
25,
2003, a copy ofwhich is attached
hereto as Exhibit B.
3. In denying
Petitioner’s motion,
the Hearing Officer agreed with the arguments
presented by the Agency in its Response to Emergency Motion to Compel Discovery (hereinafter
“the Agency’s response”), filed on December 1, 2003, a copy of which
is attached hereto as
Exhibit C.
4. For the reasons appearing below, the subject Order was entered in error, and must be
reversed.
5.
For the
further
reasons appearing below, Petitioner will be materially prejudiced if
the requested documents are not produced for review by Petitioner for possible use at the hearing,
which resumes on
January 7,
2004.
6.
Petitioner respectfully requests that the Board grant this motion for interlocutory
appeal, review the subject Order and the arguments herein expressed as to why the Order should
be reversed,
and
reverse the subject Order by requiring the Agency to furnish the requested
information, subject to whatever protections the Board deems appropriate in the circumstances.
7.
Tn addition to the reasons appearing in Petitioner’s motion (Exhibit B hereto,
incorporated herein by reference), Petitioner respectfully advances the following arguments as to
why the requested documents must be produced:
I.
IT IS FUNDAMENTALLY
UNFAIR
TO ALLOW THE AGENCY TO
ENFORCE AN INVALID RULE AGAINST PETITIONER.
A.
The Agency has developed a rule entitled “Rate Sheet” (hereinafter the “Rate
Sheet Rule”), being a statement ofgeneral applicability that implements, applies,
interprets, or prescribes law or policy. The Agency applied the Rate Sheet Rule against
Petitioner in this case. The Rate Sheet Rule, though, was not formally promulgated in
accordance with
APA
rulemaking, and the factual basis for its formulation remains a
secret, protected by the Subject Order from outside scrutiny. This is fundamentally unfair.
1.
In this case, the Agency arbitrarily cut the rates oftwo categories ofpersonnel
presented in the budget under review: Professional Engineer (from $150 per hour
to $130 per hour); and Project Engineer (from $114 per hour to $100 per hour).
In making these reductions, the Agency enforced the Rate Sheet Rule against
Petitioner. That Rule appears as Exhibit D hereto (as redacted by the Agency).
2.
Specifically, the Agency Project Manager who reviewed Petitioner’s budget
submittal, Carol Hawbaker, testified that she is required to apply the Rate Sheet
Rule in all cases:
-2-
Q.
Is
it true
that the applicant in this
case in the application
that’s pendingbefore the Agency
--
strike that, before the Board
at this time, reduced personnel costs from $36,084 to $32,514?
A. Yes, that is true.
Q.
Okay. So there is a reduction overall?
A. Yes.
Q.
But nevertheless you reduced it further, did you not?
A. Yes, we still felt it was a little excessive for the work that
was being done.
Q.
And
you reduced both hourly rates
and
hours?
A. Yes.
Q.
And
the hourly rate reductions were based
exclusively on the
rate sheets for those categories, wasn’t that correct?
A. Yes, that is true.
Q.
And
on no other basis than the rate sheets?
A. Right.
(Hawbaker deposition, page
55,
lines 19-24
-
page
56,
lines 1-16, Exhibit E hereto).
Q.
Then you reduced the rate ofthe
Professional Engineer from
150 down to 130?
A. Correct.
Q.
Now is it your testimony that you have never approved the rate
of $150 an hour for
any
Professional Engineer on
any one ofyour
budget reviews?
A. No, I would use the rate sheets.
(Hawbaker deposition, page 68, lines 7-14, Exhibit E hereto).
Q.
And
then you reduced the hourly rate of the project engineer
from 114 down to 100, is it your testimony that that was based on
the rate sheet?
A. Yes.
-3-
Q.
And you’re also
testifying
that you have never before approved
a rate ofone
--
in excess of$100 an hour for a Project Engineer on
any one of your applications for budget review?
A. No, I don’t believe so.
Q.
And you don’t know
whether that has been an Agency-wide
practice or not?
A. Well, so
far
as LUST Section?
Q.
Yes.
A. I believe the practice is we are required to use the rate sheets.
(Hawbaker deposition, page 69, lines 20-24
-
page 70, lines 1-10, Exhibit E hereto. Emphasis
added.)
3.
Therefore, since the Rate Sheet Rule was not promulgated according to the APA
and is of the type the courts have found invalid, the Board is not bound by it and,
in fact, it has no legal or regulatory effect in this proceeding, and cannot be used
by the Agency to cut rates. Platolene 500. Inc. v. Illinois EPA, PCB No. 92-9
(May 7, 1992). Petitioner respectfully moves the Board to make such a finding
and enter such an order in this matter.
B.
If the Board Does Not Find the Rate Sheet Rule to be Invalid, Then
Petitioner Should Have the
Right
to Test the Validity of the Rule and the
Database and Statistical Methods Used by the Agency to Develop It.
From
the deposition ofBrian Bauer, we know that he was the Agency person
responsible for promulgating the Rate Sheet Rule:
Q.
So you are the
Illinois EPA employee who is
responsible for compiling and managing the data
usedby the Illinois EPA’s LUST Section as of
March 28, 2003?
A. I diddo it, yes.
Q.
You did do that?
A. Yes.
-4-
Q.
So that on that date when the Decision was
made
and
the rate sheet was used, you’re the person
who was responsible for basically generating that
document the Rate Sheet Rule; is that right?
A. Yes, I generated the document.
(Bauer deposition, page 26, linel6
-
page 27, line 3, Exhibit F hereto).
Q.
Have you from 1996 until todaybeen the
primaryperson who has refined the document that
now appears as Plaintiff’s Exhibit 3 the Rate Sheet
Rule?
A. I’ve had my hand in it at the time.
Q.
Would you say you’re the primaryperson who
has been the leader ofthe group that does this
work?
A. Sure.
(Bauer deposition, page 32, line 23
-
page 33, line 6, Exhibit F hereto).
2.
In answering Interrogatory No. 7, Mr. Bauer explained how he developed the Rate
Sheet Rule:
Q.
7. Is the Agency “fee” data base used to compile any type
ofranges, averages, norms or statistics as to what fees and
other charges are incurred by owners and operators
conducting LUST projects in Illinois?
A.
Yes, the Illinois EPA’s LUST Section database is
used forthe purposes described.
Q.
a) Identify the Agency employee(s) responsible for
evaluating the data andlor compiling nay ofthese ranges,
averages, norms or statistics in the year 2003, together with
their educational background, experience, training and/or
other qualifications to so compile and/or evaluate.
A.
Brian Bauer, EPS III, B.S. in Biology from
Northland College, M.A. in Environmental Studies
from University ofIllinois-Springfield, employed
with the Illinois EPA’s LUST Section since April of
1992. Mr. Bauer has extensive experience in
reviewingbudgets submitted pursuant to the LUST
program.
Q.
b) Describe how these ranges, averages, norms or statistics
are determined.
-5-
A. A random selection of data is compiled, averaged,
one standard deviation is calculated and then added
to the average to yield a figure used as guidance
when determining the reasonableness of a cost
submitted in a budget.
Q.
c) Is all information related to fees and charges incurred by
various owners and operators
conducting all LUST projects
in Illinois included in the data base
and
used for
determination of these ranges, averages, norms or statistics?
A. No.
Q.
d) If not, is a sample set selected from the overall
“population”?
A. Yes.
Q.
e) If a limited sample set is used for determination ofthese
ranges, averages, norms or statistics, how is the sample set
selected?
A.
All budgets submitted for a particular phase of
corrective action (i.e., site classification or
corrective action) are compiled, submittals that
involve the same consultant
are reduced such that in
the end one submittal from each consultant that
submitted a budget of that
type
for the sample
period remains.
Q.
f) Ifa limited sample set is used fordetermination ofthese
ranges, averages, norms or statistics, is any statistical
evaluation conducted to determine the representativeness of
the sample set to the overall population?
A. No separate statistical evaluation is conducted. The
Illinois EPA believes the selection process ofthe
sample set effectively yields a sample set that is
representative ofthe overall population.
(Answers to Interrogatories, Exhibit B hereto, Ex. 1, pages
5-7.)
3.
The procedure whereby Mr. Bauer promulgated the Rate Sheet Rule was
something that he just made up himself:
Q.
Now, looking again at question Number 7
Interrogatory 7, Exhibit B hereto; see Paragraph
I(B)(2), above and your answers to it, are you
describing in those answers,
. . .
(B) through (F), does
that describe a procedure that you have ever used
before in any ofyour other job assignments at
-6-
Illinois EPA?
A. Yeah.
I’m not sure.
Q.
Do you know if this particular procedure or
protocol is memorialized anywhere in any Agency
document as
to how to prepare a rate sheet.
A. No.
Q.
Okay. Have you ever seen in the literature or a
learned treatise
or
any
document that is
written by a
professor of statistics or something like that a
description that is similar to what you’ve described
in B through F?
A. No.
(Bauer deposition, page 49, line 6
-
page
50,
line 8, Exhibit F hereto).
4.
Tn his deposition, Mr. Bauer further explained how he went about generating the
data used to promulgate the Rate Sheet Rule, walking from desk to desk and
randomlypicking up documents consisting ofLUST budget submittals (his
Agency counterpart, Doug Oakley, was doing the same thing with regard to LUST
reimbursement requests), then selectively tossing out some ofthe documents
considered redundant, determining an average, then adding one standard deviation
to that average. (Bauer deposition, page 33, line 3
-
page 40, line 13, Exhibit F
hereto).
5.
From Bauer’s deposition, though, it is unclear as to whether the rates appearing in
the Rate Sheet Rule applicable to the two (2) categories of employees at issue in
this case (Professional Engineer, Project Engineer) were even close to the
categories ofpersons whose hourly rates appeared in the budgets inputted by
Bauer in his computer database, because not all consultants use the exact same
titles to describe persons who perform particulartasks, leaving the Agency to
guess as to how to force-fit those rates into the categories chosen by the Agency to
-7-
list in its Rate Sheet Rule:
Q.
So you had a category called Professional
Engineer?
A. Yes.
Q.
And one called just engineer?
A. Yes.
Q.
And is that what all the consultants use to
describe their project engineers, they usejust
engineer?
A. They might use other terms.
Q.
Who made the determination that these were all
applies and apples and should be lumped under one
heading called engineer? Is that you?
A. I think there were a couple ofus that reviewed,
made that determination.
(Bauer deposition, page 41, line 14
-
page 42, line 3, Exhibit F hereto).
6.
Because there was no clear way forthe Agency to determine what rates should be
inputted into what category, the Agency employed circular logic to look to the
quoted rates to determine what that person did for a living:
Q.
Was there any particular protocol you were
following when you were making these
determinations as to where people fit into what
categories?
A. It was based on rates.
Q.
So the rates determined where they went more
than the description of what they did?
A. To some extent.
(Bauer deposition, page 43, line 19
-
page 44, line 2, Exhibit F hereto).
7.
Clearly, just based on the Bauer deposition alone, the Rate Sheet Rule appears to
have been thrown together in a haphazard way, based upon an unscientific
sampling and analysis protocol, which Petitioner has the right to review. The data
-8-
that
was used to
arrive
at the rates
appearing
in the Rate Sheet Rule are highly
suspect arid, unless Petitioner can review them and subject them to closer scrutiny,
the Agency’s use ofthe Rate Sheet Rule
is
arbitrary and
fundamentally unfair.
That data is readily available for discovery:
Q.
What did you do with your data that you
assembled?
Where is that information that you used in
making up the rate sheet? We’ll call that the
database.
A. It’s still on my computer.
Q.
So that’s still in existence?
The database is still in existence on your
computer?
A. Yeah, there is one database there.
Q.
But the one that’s in existence is the one that
was used forpreparing what is Plaintiff’s Exhibit 3
the Rate Sheet Rule?
A. Yes, my database that I used.
(Bauer deposition, page 48, line 13
-
page 49, line 2, Exhibit F hereto).
8.
Ifthe Rate Sheet Rule had been the product offormal rule making, Petitioner
would have had a chance to participate and assist in getting it right, but Petitioner
was given no such chance. The Agency, therefore, must now allow Petitioner to
review the database and, to the extent that any ofit supports Petitioner’s claim
that the rates appearing in the Rate Sheet Rule are invalid, to introduce that
evidence into the record in this case.
9.
Petitioner has manytimes requested the Agency to produce the database which
was used to promulgate the Rate Sheet Rule, but the Agency has refused, and the
Hearing Officer has agreed with the Agency.
10.
Tn essence, the Agency argues that it can disapprove any rate presented in a budget
(or, for that matter, in a request for reimbursement) if the Agency reviewer, in his
-9-
or her opinion, claims it is “unreasonable” because it exceeds a rule whose
validity shall remain untested. The Hearing Officer’s Order adopts the “shall
remain untested” part
of this
argument. This is fundamentally unfair.
C.
Even Though the Database Used by the Agency to Create the Rate Sheet
Rule Consists, in Part, of Rates Taken from LUST Reimbursement Applications, the
Database Is Still Relevant to the Rates Imposed by the Agency in this Budget Review Case
Because the Agency Applies the Rate Sheet Rule to Both Reimbursement Requests and
Budget Reviews.
1.
Tn paragraph 19 ofits response, the Agency concedes that the information used to
prepare the Rate Sheet Rule was generated from both budget reviews and requests
for reimbursement, but argues that because the instant case involves only a budget
review, the database is irrelevant and cannot be disclosed. The subject Order
adopts the Agency’s argument on this point. Ifthat is the case, though, the Rate
Sheet Rule itself is irrelevant, and cannot be used by the Agency in deciding
reasonableness of rates and costs in ~ budget review case. The Agency can’t
have it both ways. It cannot, on one hand, rely exclusively on the Rate Sheet Rule
and, on the other hand, refuse to disclose the basis upon which it was generated on
the argument that some ofthe underlying data was and is wholly unrelated to this
case. The Agency’s argument is contradictory and self-destructive.
2.
And in paragraph 8 ofits response, the Agency argues that any documentation
concerning the Agency’s practices when reviewing requests for reimbursement
will not be provided in response to Petitioner’s discovery request, not because the
documentation would not lead to information that is relevant to the issues in this
case, but because “the final decision under appeal does not involve any request by
the Petitioner for reimbursement ofcosts.” The Hearing Officer embraces this
-10-
requirement by holding that the request for the database is “overly broad.”
However, the very document uponwhich the Agency relies to prove
“reasonableness” of rates (the Rate Sheet Rule) was generated by combining
historic rates (for fees ofprofessionals and other personnel, for equipment, and for
other costs traditionally included in both budgets and requests for reimbursement)
from
i~
budget requests ~ request for reimbursements, within the LUST
program.
Moreover, the resulting Rate Sheet Rule is applied in both situations.
3.
In fact, at his deposition ofNovember
25,
2003,
Harry A. Chappel, the person
who supervised the reviewer ofthe subject budget, Carol Hawbaker, testified
under oath that as ofthe date Ms. Hawbaker made her final decision on this
budget (March 28, 2003, which is the date on which Mr. Chappel signed the final
decision, drafted by Ms. Hawbaker), Ms. Hawbaker used the exact same guidance
or protocol in reviewing reasonableness of this budget as she uses when
determining reasonableness in a request for reimbursement for expenses in a
LUST remediation project.
Q.
The question was:
As ofMarch 28, 2003, was Ms. Hawbaker
instructed to use different guidance or protocol in
reviewingreasonableness whether it appeared in a
request for a budget approval or in a request for
reimbursement?
A. Not that I’m aware of.
Q.
So, to your knowledge, Ms. Hawbaker used the
exact same approach to determining reasonableness
every time she was asked to do that up until March
28, 2003, whether it was in the form of a request for
a budget review or a request for reimbursement of
expenses in a LUST remediation project?
A. As far as Iknow, yes.
(Chappel Deposition, page 13, lines 6-20, Exhibit G hereto).
4.
There is absolutely no distinction between how the Agency determines
—11—
reasonableness as it pertains to rates, whether they appear in a LUST budget
application or a LUST reimbursement application. The Agency’s argument,
therefore, that Petitioner in this case was not seeking reimbursement, and the
Hearing Officer’s Order, denying the request for the database because
it is “overly
broad,” is just wrong.
5.
The database from which the Rate Sheet Rule was derived is no broader, and no
less relevant, than the Rule itself. It must be produced.
II.
THE INTERNAL GUIDANCE DOCUMENTS USED BY THE AGENCY
TO ASSIST IN THE DETERMINATION OF THE REASONABLENESS
OF COSTS INCLUDED IN THE SUBJECT BUDGET, INCLUDING THE
LUST PROGRAM PROJECT MANAGER HANDBOOK AND THE
DOCUMENT THE AGENCY DESCRIBES AS “IRT 500.003,” ARE
RELEVANT TO THE ISSUE OF REASONABLENESS, OR ARE LIKELY
TO LEAD TO RELEVANT INFORMATION ON THE ISSUE OF
REASONABLENESS,
EVEN
IF WHAT THEY SHOW IS THAT THE
AGENCY DEVIATED FROM THAT GUIDANCE WHEN CUTTING THE
SCOPE OF WORK, RATES, HOURS, AND COSTS IN THIS CASE.
Tn
its response, in paragraphs 11 and 12, the Agency correctly states that the
manner in which the Agency went about making its decision in this case is itself
the focus ofthis appeal, and rightfully so. The Agency has arbitrarily developed
and applied rules and guidance, and has unreasonablyrefused to disclose same
and the manner in which theywere prepared.
2.
The requested guidance documents could show, for example, that they are to be
applied absolutely and in all cases, without deviation based on special
circumstances, but were not followed here. Such instructions cannot remain
immune from such discovery and scrutiny by the very people against whom they
are sought to be enforced. The Agency is stonewalling the entire process, forcing
the LUST program applicants to guess at how the Agency reaches its decisions.
This is fundamentally unfair.
3.
In paragraph 13, the Agency does not deny that it has, in fact, consistently
reported to the U.S. EPA that it has issued a LUST manager’s handbookto its
-12-
LUST managers. However, in refusing to produce this guidance (or ~y guidance
other than the invalid Rate Sheet Rule), it begs the question as to whether the
Agency makes these decisions based on anything. Clearly, the Agency writes up
protocol and guidance documents that are intended to be used in these kinds of
cases, and which the Agency tells the U.S. EPA are, in fact, used by the Agency in
these cases. The Agency conveniently argues in this case, though, that Carol
Hawbaker, who reviewed this budget and made the disputed decisions concerning
reasonableness, never bothered to read ~y ofthe Agency’s materials, then
advances the theory that “if the Agency didn’t look at it, then the Board can’t see
it, either, nor can anybody else.” This is a disingenuous argument, calculated to
avoid answering the question ofwhether the Agency acted properly in cutting
Petitioner’s budget.
4.
Askingthe question ofwhether the Agency acted properly in cutting Petitioner’s
budget by propounding questions and seeking documents on that issue does not
place the initial burden ofproofon the Agency, but does provide necessary
information for Petitioner when, after making out his prima facie proof of
reasonableness, the burden shifts to the Agency and the Agency is forced to
explain how it arrived at conclusions contrary to Petitioner’s. Petitioner has every
right to prepare its case with the information requested.
III.
IT IS FUNDAMENTALLY UNFAIR TO DEPRIVE PETITIONER OF ITS
RIGHT TO KNOW HOW THE AGENCY
MADE
ITS DECISION IN THIS
CASE, AND WHAT THE AGENCY’S OWN GUIDANCE REQUIRES IN
MAKING SUCH DECISIONS.
The
fundamental
purpose ofadjudicated matters such asthis is to determine the
truth ofthe matter, and
the basic
purpose
of discovery is to assist the Board in
ascertaining that
truth
by permitting each
party
to
learn
as much about the
controversy as is reasonably practical.
-13-
2.
By entering the subject Order, the
Hearing
Officer is preventing Petitioner, and
ultimately the Board, from learning the truth.
3.
The scope of discovery is necessarily broad. Wilson v. Norfolk & W. R. Co., 109
Ill. App. 3d 79, 440 N.E. 2d 238, 1982 Ill. App. LEXIS 2257, 64 Ill. Dec. 686 (Ill.
App.
~
5th
Dist. 1982). The Board has recognized this in
variance
cases, Gallatin
National Company v. Illinois EPA, PCB No. 90-183 (Nov. 26, 1990), and in
enforcement cases, EPA v. Decatur Sanitary District, et a!., PCB No. 77-157
(March 2, 1978) (Agency ordered to reveal factual bases for its experts’ opinions,
the Board stating that discovery “should be as wide as possible with respect to the
facts ofthe case in order to allow the issues to be developed as fully as possible by
the parties”).
4.
It shouldn’t matter, in a truth-seeking exercise, that the Board maybe limited to
reviewing “the record” in permit appeals, since, in effect, what is being sought
here is part ofthe record, or at least should be part ofthe record. To the extent
that it is “beyond the record” (and Petitioner does not concede that it is), the
Board has previously allowed limited discovery, beyond the record developed at
the county board in a siting case, as appropriate to determine that the governing
body satisfied the statutory requirement offundamental fairness. Sam Dimaggio,
et al. v. Solid Waste Agency ofNorthern Cook County, et al., PCB No. 89-138
(October 27, 1989), adopting the holding in E&E Hauling, Inc. v. PCB, 116
Ill.App. 3d
586,
587, 415 N.E. 2d
555
1983 Ill. App. LEXIS 2081, 71111. Dec.
587 (Ill. App. Ct. 2d Dist. 1983).
5.
Finally, in the Agency’s response at Paragraph 18, the Agency suggests that
internal Agency guidance in LUST program appeals have never before been
ordered by Board hearing officers to be produced in response to motions to
compel, but that is not the information and belief ofcounsel for Petitioner. In
-14-
Owens Oil Co. v. IIEPA, PCB 98-32, for example, where the attorneys of record
were the
same two attorneys who are the attorneys ofrecord in the case presently
before the Board, the then-applicable “LUST Managers Handbook” was, in fact,
ordered to be furnished by the Hearing Officer over the Agency’s objections, and
was furnished, on information and belief of Petitioner’s counsel. See Exhibits H,
I and J, hereto, being the cover sheets for the manuals then produced. Owens
prevailed in that case. Unfortunately, the LUST Manager’s Handbook that was
produced in the Owens case is now outdated because it related to what the Agency
calls “old law” LUST cases. What we need now, to adequatelyreview the basis
upon which the Agency made its disputed decisions in this case, are the same
documents previously ordered to be produced, but this time under the “new law”
program. It is highly prejudicial to Petitioner, and fundamentally unfair, to keep
this information from Petitioner in the preparation and presentation ofits case. It
must be produced.
Respectfully submitted,
ILLINOIS AYERS OIL COMPANY, Petitioner
By MORAN,
& ADAMI
By
MORAN, ALEWELT, PRILLAMAN & ADAMI
1 North Old Capitol Plaza
Suite 325
Springfield, IL 62701
Phone: (217) 528-2517
-15-
VERIFICATION
The undersigned certifies that the statements
correct,
except as to matters therein stated to be on
the undersigned certifies as aforesaid that he
Subscribed and sworn to before me
(Notarial Seal)
F:\Mapa\CSDEnvironmentaN~1otionJnter1ocutoryAppea1.wpdWCP.crk\3\1O\03
OFFICIAL SEAL
SUSAN E. WELLS
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 1-22-2007
instrument are true and
-16-
CLERK’S ~PF1CE
ILLINOIS POLLUTION CONTROL BOARD
DEC - 2 2003
December 2, 2003
STATE OF ILLiNOIS
Pollution Control Board
ILLINOIS AYERS OIL COMPANY,
)
)
Petitioner,
)
)
v.
)
PCB 03-214
)
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
HEARING OFFICER ORDER
The hearing officer will send the parties a copy ofthis order by facsimile. The Clerk’s
Office will send the
parties a copy of this order by U.S. mail.
On November 25, 2003, petitioner filed an emergency motion to compel discovery. On
December 1, 2003, respondent filed its response. A hearing in this matter is scheduled for
December 3, 2003, and the statutory decision deadline is
January 31, 2004.
Petitioner’s Emergency Motion to Compel Discovery
Petitioner seeks to compel production ofrespondent’s rate sheets; UST databases used to
determine ranges ofreasonable reimbursement rates; job classification requirements for all of
respondent’s employees who reviewed the case; the LUST Project Manager Manual (manual);
and document “IRT 500.003” which purportedly assists respondents in reviewing budgets.
Petitioner argues that the issue in this case is whether respondent’s modification olthe
budget was reasonable. Petitioner asserts that the public has a right
to know the policies
respondent relies on to determine what is reasonable for a budget. Petitioner wants to review the
database and rate sheets used by the project manager, asserting that statistical methods should be
open and tested for accuracy. Petitioner contends that, even if the reviewer did not rely on the
project manager manual, the documents may show that the result would have been different ii
she had.
Respondent’s Response
On December 1, 2003, respondent filed its response to the motion. Respondent disagrees
with the reasonableness inquiry, asserting it shifts the burden of proofto respondent to show that
the costs are not reasonable. The burden of proofin this matter rests with petitioner tojustiFv its
costs.
Due to the volume of this pleading,
please contact the Clerk’s Office
at
312/814—3629
to view this file
