CLERK’S OFFICE
DEC 1 7 2003
BEFORE THE POLLUTION CONTROL BOARD
STATE OF ILLINOIS
OF THE STATE OF ILLINOIS
POlltgtj0y~Control Board
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL 62794-9274
Fred C. Prillaman
Mohan, Alewelt, Prillaman & Adami
Suite
325
1 North Old Capitol Plaza
Springfield, IL 62701-1323
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution
Control Board a RESPONSE TO MOTION FOR INTERLOCUTORY APPEAL, copies of which are
herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December
15,
2003
ILLINOIS AYERS OIL COMPANY,
Petitioner,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
PCBNo.03-214
)
(LUST Appeal)
)
)
NOTICE
CL1~PJcg
OPFrCE
BEFORE THE POLLUTION CONTROL BOARD
DEC 172003
OF THE STATE OF ILLINOIS
Pollution
STATE OFControl
ILLINOIS
Board
ILLINOIS AYERS OIL COMPANY,
)
Petitioner,
)
v.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
RESPONSE TO MOTION FOR INTERLOCUTORY APPEAL
NOW COMES the Respondent, the Illinois Environmental Protection Agency (“Illinois
EPA”), by one of its attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to 35 Ill. Adm. Code 101.500, 101.504, and 101.5 18, hereby requests that
the Illinois Pollution Control Board (“Board”) affirm the order entered by the Hearing Officer on
December 2, 2003. In support ofthis response, the Illinois EPA states as follows:
I. BACKGROUND
1.
On December 2, 2003, the Hearing Officer assigned by the Board to oversee the
present appeal issued an order in response to a motion to compel discovery filed by the
Petitioner, Illinois Ayers Oil Company (“Ayers Oil”). Specifically, the Petitioner argued that it
was entitled to receive the following information through discovery requests: 1) Rate sheets and
related database used by the Illinois EPA; 2) job classification requirements for all Illinois EPA
who reviewed the subject high priority site investigation corrective action plan (“HCAP”) and
associated budget; 3) the Leaking Underground Storage Tank (“LUST”) Section’s Project
Manager Handbook (“handbook”); and 4) a document entitled “IRT 500.003.” The Illinois EPA
filed a response to the motion to compel, and the Illinois EPA asks that the arguments and
statements therein be considered in conjunction with this response.
PCB No. 03-214
(LUST Appeal)
1
2.
The Hearing Officer’s order ruled on the Petitioner’s motion to compel as
follows: 1) The rate sheets were not ordered to be produced, as the Hearing Officer took note of
the fact that the Illinois EPA had provided the relevant portions of the rate sheets in redacted
form to Ayers Oil, and that the database request was overly broad; 2) the job qualifications ofthe
employees of the Illinois EPA that reviewed the subject HCAP and budget could be addressed by
Ayers Oil at the hearing; 3) the handbook was not deemed relevant given that Ayers Oil provided
no evidence that the handbook was relied upon; and 4) the IRT document was found to contain
general information that could be elicited through testimony, along with more specific
information that did not relate to the review of HCAPs and budgets.
3.
The Petitioner is now seeking review by the Board on the same issues raised
before the Hearing Officer, along with several arguments not previously raised. A careful review
of the content ofthe motion for interlocutory appeal makes clear that the Petitioner is seeking to
justify its overly broad “fishing expedition” ofdiscovery based on a number ofmisleading and/or
erroneous factual and legal arguments.
4.
The Petitioner filed its motion for interlocutory appeal on or about December
5,
2003. The Illinois EPA received a hand-delivered copy ofthe motion for interlocutory appeal on
December 5, 2003, at 4:55 p.m. Pursuant to Section 101.500(d) of the Board’s procedural rules
(35 Ill. Adm. Code 101.500(d)), the Illinois EPA would have fourteen (14) days to file a
response, or in this case, until December 19, 2003. However, on December 10, 2003, the Illinois
EPA was informed that it must file its response to the motion for interlocutory appeal by no later
than December
15,
2003. The Illinois EPA objects to this expedited schedule, primarily since it
is a situation created entirely of the Petitioner’s own doing. The Petitioner’s decision to force the
Board and the Illinois EPA into reviewing and acting upon the motion for interlocutory appeal in
2
an extremely truncated fashion is objectionable, yet the Illinois EPA has little choice but to
comply.
II. THE ILLINOIS EPA IS NOT ENFORCING
AN IN
VALID RULE
5.
The first argument offered by the Petitioner in support of its motion for
interlocutory appeal is it is fundamentally unfair to allow the Illinois EPA to enforce an invalid
rule against the Petitioner. Petitioner’s motion, p. 2. However, that argument is both misplaced
and mistimed. Before the Board is a motion for interlocutory appeal seeking a reversal of the
Hearing Officer’s order; whether or not the Illinois EPA is enforcing an invalid rule (which the
Illinois EPA categorically denies) is not a ground for the relief sought in the motion. Rather, that
argument is one that goes to the merits of the case and should not be considered or ruled upon at
this time.
6.
Other than discovery depositions taken by the Petitioner, in which testimony is
one-sided by design, no testimony of any kind has been elicited in this appeal. The Board has
yet to conduct a hearing on the merits of the case, and neither party has presented any evidence
for the Board’s consideration (or been given a formal opportunity to challenge or refute the
opposing party’s evidence). If, as the Petitioner apparently desires, the Board were to decide
based solely on the motion for interlocutory appeal that the Illinois EPA’s use of the rate sheets
in question was an improper rulemaking, the Illinois EPA would have been dealt a serious blow
to its case without ever having been allowed to present a single witness or cross-examine any
witness ofthe Petitioner’s.
7.
Since neither party has yet to participate in a hearing before the Board in this
matter, and thus no evidence has yet been elicited as part of the record before the Board, it is
untimely for the Board to consider or act upon the Petitioner’s argument regarding the Illinois
3
EPA’s use of the rate sheets. The Petitioner seeks a finding b~the Board that would be based on
no evidentiary testimony, or evidence of any other kind, and yet could be quite serious in its.
ramifications. Put another way, the Petitioner is trying to bait the Board into making dispositive
decisions based on a pre-hearing motion that includes no testimonial evidence that has been
elicited during a hearing. It is simply misplaced to advance that type ofargument here, and it is
certainly not timely.
8.
Also, the Petitioner claims that the factual basis for the Illinois EPA’s formulation
of the rate sheets remains a secret. Again, this is an unsupported and incorrect statement.
Throughout the motion for interlocutory appeal, the Petitioner cites to portions of transcripts
taken in discovery—not evidentiary—depositions of several Illinois EPA employees. These
depositions fail to present a complete picture of testimony that could be provided at a hearing.
That said, based on the depositions taken and the responses the Illinois EPA has already provided
through written discovery, the Petitioner now has more than sufficient information before it~to
show just how the Illinois EPA calculated the rate sheets.
9.
This~information, though, is not what is at the heart of the Petitioner’s request.
The Petitioner has already gained access to the information necessary for it to understand and
respond to the Illinois EPA’s decision-making process. Through the overly broad and irrelevant
-
nature of the Petitioner’s discovery request that is now raised in the motion for interlocutory
appeal, it is clear that the Petitioner is on an extended “fishing expedition,” hoping to acquire
information and documentation that has nothing to do with the present case but which may be
useful to the Petitioner in some future, unrelated context. The Board should not facilitate this.
type of activity, and instead should follow the clear and reasoned decision ofthe Hearing Officer
as contained in her order.
.
4
10.
There is little doubt that the Petitioner will continue to advance the argument that
the Illinois EPA’s rate sheets are an improper rule, and that the Board will likely address the
argument in some fashion as part of its final opinion and order. But to do so at that time will
have allowed the Illinois EPA to present any testimony, evidence or arguments that it feels are
contrary to the position of the Petitioner. Only after a hearing and post-hearing briefing would
both parties be able to adequately and fully make their arguments. The Board would then have
the arguments of both parties on the issue, and thus would be best-situated to speak on the topic.
11.
The Petitioner then argues that even if the Board will not find that the rate sheets
are invalid, the Petitioner should nonetheless have the right to test the validity ofthe rate sheets,
database and statistical methods used. Petitioner’s motion for interlocutory appeal, p. 4. As
stated above, the Illinois EPA has already provided all the information needed for the Petitioner
to make the type of challenge described. In response to Interrogatories 7 and 14(a) as posed by
the Petitioner, the Illinois EPA described how the rate sheets are calculated and used. Further,
testimony was provided during the discovery depositions that further described the methods of
calculation and use:
12.
Despite the fact that the testimony cited to by the Petitioner in its motion was
taken in depositions, and that neither party has presented any evidence or witnesses in a hearing
-
setting, the Petitioner still fashions an argument (to which the Illinois EPA takes exception) .that
the method of calculation and use was “haphazard” and based on an “unscientific sampling. and
analysis protocol.” Petitioner’s motion for interlocutory appeal, p. 8. So clearly the Petitioner is
in possession of sufficient information by which it can raise whatever arguments it deems
appropriate. Whether those arguments have merit is a matter for debate, but what is not in
5
question is the fact that the Petitioner has all the information it needs to present its case to the
Board.
13.
Focusing on the information and documents that are the subject of the motion for
interlocutory appeal, the Illinois EPA argued in its response to the motion to compel originally
submitted to the Hearing Officer that no information within those contested documents relates in
any way to the arguments raised by the Petitioner. Though the Petitioner is now expanding the
arguments in support of its request for the documents, the fact remains that a simple review of
the documents in question will reveal that the Hearing Officer’s descriptions and findings were
correct. There is no information contained within any ofthe documents in question that relate in
any way to the question of whether the rate sheets are an improper rulemaking, and none of the
information therein will lead to any relevant evidence that could be used.
14.
The documents that are the subject of the Petitioner’s request do not contain any
information regarding the use of the guidance documents or rate sheet by the LUST Section.
The handbook, other than the page already provided to the Petitioner as part of the response to
the Petitioner’s request to produce, has no information on budget reviews, much less rate sheets.
The IRT document has no information on rate sheets for HPCAP budgets
—
it relates to site
classification budget review, not HPCAP budget review. The database is simply spreadsheet
information with no information regarding how to use the rate sheets.
15.
The Petitioner makes the unfounded argument that if the rate sheets had been the
subject ofa formal rulemaking, the Petitioner would have had an opportunity to participate in the
development and implementation process. Further, the Petitioner argues that the Illinois EPA.
must now allow the Petitioner to review the database to see whether any portion therein supports
6
the Petitioner’s claim that the rate sheets are invalid. Petitioner’s motion for interlocutory
appeal, p. 9.
16.
Those arguments are again based on the supposition that the rate sheets are an
improper rulemaking. The Illinois EPA has argued, and will argue, that the rate sheets do not
rise to that level and therefore the notice other formal requirements attendant to a formal
rulemaking are not applicable. As such, there is no requirement that the Illinois EPA produce the
information to the Petitioner. For the Board to rule against the Illinois EPA on this point would
again severely prejudice the Illinois EPA’s defense in this case, as a potentially dispositive ruling
would be made without the Illinois EPA ever having had the opportunity to participate in a
hearing. Also, the Illinois EPA reminds the Board that it is the Petitioner that has the burden of
demonstrating that the information contained within the HCAP and budget was such that
approval of the HCAP and budget would not result in a violation of the Illinois Environmental
Protection Act (“Act”) or underlying regulations.
17.
The Petitioner also argues that the database used by the Illinois EPA to create the
rate sheets consists in part of rates taken from applications for reimbursement from the
Underground Storage Tank (“UST”) Fund. The Petitioner believes the database information is
relevant to the rates imposed by the Illinois EPA in the present case. Petitioner’s motion for
interlocutory appeal, p. 10.
18.
The Petitioner then states that in Paragraph 19 of its response, that the Illinois
EPA conceded that information used to prepare the rate sheets was generated from both budget
reviews and requests for reimbursements. It is unclear what paragraph the Petitioner is citing to,.
as Paragraph 19 of the Illinois EPA response to the Petitioner’s motion to compel contains no
such statement. In general, the Illinois EPA has objected and continues to object to the
7
production of any information or documentation that relates to any type of final decision other
than one related to a high priority corrective action plan or budget. Any information related to
reimbursement requests or review of plans or budgets for activities other than high priority
corrective action is not relevant to the present appeal, and therefore should not be considered.
Accordingly, the Illinois EPA should not be required to produce that information. The reason for
the Illinois EPA’s justified concerns regarding the Petitioner’s overly broad requests is that to
allow those requests would be to provide the Petitioner with a windfall of information, all
stemming from the fishing expedition being conducted.
19.
As the Illinois EPA has steadfastly stated, both in responses to discovery requests
and in the response to the motion to compel, information that is not related in any way to the
present appeal should not be produced.
The Petitioner has twisted this argument, and
characterize the Illinois EPA’s objection as the Illinois EPA seeking to on the one hand rely
exclusively on the rate sheets and on the other hand refuse to disclose the basis upon which it
was generated on the basis that some of the underlying data was and is unrelated to this case.
Petitioner’s motion for interlocutory appeal, p. 10.
20.
As the Petitioner’s motion to compel followed its interrogatories and requests to
produce documents, those requests form the extent of the information sought by the Petitioner.
The Illinois EPA objected to interrogatory numbers
5, 6,
8 and 18 on the grounds that, inter .alia,
the requests sought information related to the review of both budgets and reimbursement
requests. Those interrogatories, which are attached to the motion for interlocutory appeal along
with the Illinois EPA’s answers, clearly seek information that goes well beyond the scope ofthe
Board’s review here. Further, the Illinois EPA has objected to the production of the database
8
information for several reasons, not the least of which is that the information is irrelevant and
overly broad.
21.
There is no relevance or materiality to any information regarding reimbursement
documents since this appeal involves a technical decision. The Illinois EPA has consistently
raised this concern, and the Board should carefully review the interrogatories and answers when
considering this issue. The Petitioner’s attempt to use this appeal as the means by which
irrelevant and immaterial information can be gained should not be allowed.
III. THE HANDBOOK,
DATABASE, RATE SHEETS AND
IRT ARE NOT RELEVANT
22.
None of the four categories of documents and information sought by the
Petitioner are relevant to the present proceeding. The Illinois EPA notes that some information
from the rate sheets, i.e., the cover memorandum and specific rates employed in this particular
instance, have already been provided to the Petitioner. Similarly, the one page ofthe handbook
that has any arguable relevance has also been provided. But no information contained within the
database is relevant, and in fact is much broader than the rates at issue in this appeal. And
though the Petitioner seeks to gain this information, the rates themselves and the methodology
for calculating the rates has already been made known to the Petitioner.
23.
The attempt to seek the database as a whole, and other information in the rate
sheets outside of the rates already provided, is nothing more than an attempt to find out all
information for all rates calculated by the Illinois EPA. For example, there is no relevance to
information contained within the rate sheets or database regarding backhoes, since that type of
equipment was not at issue here. But that type of irrelevant (yet potentially valuable in other.
unrelated contexts) information is exactly what the Petitioner seeks.
9
24.
There is no information in any of the documents, other than what has been
provided already to the Petitioner, that has any relevance or will lead to any relevant evidence for.
this proceeding. The Hearing Officer reviewed the documents in question and reached that
conclusion, and the Board should do the same.
25.
As part ofits argument on this issue, the Petitioner totally twists a statement made
by the Illinois EPA. The Petitioner claims that the Illinois EPA stated that the manner in which
it went about making its decision in this case is itself the focus of this appeal. Petitioner’s
motion for interlocutory appeal, p. 12. In fact, a reading of the paragraphs cited from the Illinois
EPA’s response to the motion to compel makes very clear that the Illinois EPA was arguing that
the Petitioner was wrongly seeking to shift the burden ofproof from the Petitioner (who carries
the burden ofproof here) to the Illinois EPA by trying to place the Illinois EPA’s procedures on
trial. The Illinois EPA unequivocally believes that the manner about which it made its decision
is not and should not be the Board’s focus; rather, the question to be reviewed is whether the
Petitioner has met its burden of proof and whether the Petitioner submitted sufficient documents
in its HCAP and budget. This attempt to shift the burden of proof will certainly be addressed in
a more comprehensive manner, but at the appropriate time and place in the hearing (if necessary)
and in post-hearing briefs.
26.
Given that the burden of proofis on the Petitioner, and that no hearing has taken
place such that the Petitioner has placed into evidence any of the facts to support its claims, the
Illinois EPA continues to argue that the burden ofproof remains on the Petitioner. The attempts
by the Petitioner to project theories onto the Illinois EPA (e.g., “if the Agency didn’t look at it,.
then the Board can’t see it, either, nor can anybody else”) are obviously pure conjecture on the
part ofthe Petitioner. Petitioner’s motion for interlocutory appeal, p. 13. The Illinois EPA .is not
10
arguing that if the Illinois EPA didn’t look at it then no one else can either. Rather, the Illinois
EPA is arguing that as to the handbook (which was the subject of that particular passage in thefl
motion for interlocutory appeal), there is no information in the handbook except for the one page
already provided that has anything at all to do with the review of a high priority corrective action
plan budget.
27.
The Hearing Officer correctly noted in her order that there was no evidence
presented by the Petitioner that the handbook was relied upon. The Illinois EPA’s argument is
consistent with that observation, but also takes it one step further, in that there is nothing in the
handbook (except what has been provided) that even remotely addresses budget reviews. This is
not a matter of“we didn’t look at it so no one else can,” but rather “there’s nothing in the book
other than what’s been given that has anything at all to do with the appeal.”
28.
As stated earlier, the Illinois EPA will address the question of whether the burden
in this case should shift to the Illinois EPA, but for now the Illinois EPA states that it does not
believe there is a burden shift ofthe type described by the Petitioner. That, however, is a legal
question and not a factual one, and therefore is distinct from the discovery request.
IV. THE PETITIONER KNOWS HOW THE FINAL DECISION WAS MADE
29.
The Petitioner argues that it is fundamentally unfair to deprive it of its right to
know how the Illinois EPA made its decision in this case, and what the Illinois EPA’s own
guidance requires in making such decisions. Petitioner’s motion for interlocutory appeal, p. 13.
30.
The Illinois EPA does not disagree with those statements. But, the Illinois EPA
does disagree with the contention that the Petitioner does not now know how the final decision in
this case was reached. The motion for interlocutory appeal challenges the Hearing Officer’s
decision to not require disclosure of the four groups of information and documents described
11
earlier. In this case, the information and documents described relate to those parts ofthe Illinois
EPA’s decision that modify rates sought for approval by the Petitioner in the HCAP budget.
31.
Through answers to interrogatories and deposition testimony, the Petitioner has
learned that the Illinois EPA used an internal guidance (thus far referred to as “rate sheets” or
“rate sheet rule”) to assist in the determination ofwhether the rates in question were reasonable
as is required pursuant to the Act and regulations. Use of that internal guidance resulted in a
modification ofthe rates to rates found on the guidance. Those rates have been disclosed to the
Petitioner, as has the method oftheir calculation (i.e., collection of submitted budgets, discarding
redundant copies from common consultants, taking an average and then one standard devi,ation).
32.
That is the sum and substance of the Illinois EPA’s decision here, and there
simply is nothing more. There is no secret passage in the handbook that discusses the internal
guidance, there is no mysterious directive in the IRT document regarding HCAP budget review,
and there is nothing relevant in the database that speaks to the issues raised in this case. It- is
possible that the Petitioner thinks there is some policy or requirement found in one of the
documents in question that has been avoided or overlooked. If that were the case, then certainly
the Petitioner would have every right to know of that omission and to make any arguments
thereto. However, that is not the situation here.
33.
Simply put, the Illinois EPA seeks to avoid the production of irrelevant
information and documents (that also would not lead to any relevant information or documents)
since the disclosure is uncalled for, and is beyond the scope of the present appeal, and would
reward the Petitioner with information that has no application here but could in other cases. The.
final decision, responses to discovery and testimony taken in depositions thus far makes clear
how and why the Illinois EPA made its decision. If the Petitioner disagrees with that, it can try
12
to address it at hearing and in briefing. But the documents in question do not add anything to the
decision making process employed here.
V. CONCLUSION
34.
The documents and information sought by the Petitioner that were the subject of
the Hearing Officer’s order were correctly reviewed, analyzed and acted upon by the Hearing
Officer. Her decision took all arguments into consideration and reflected a careful reading ofthe
content of the documents.
35.
The Petitioner has since raised additional arguments in support of obtaining the
documents, but none of those arguments is persuasive. The arguments do not claim any mistake
on the part of the Hearing Officer in reaching her decision, and fail to make any claim ofmerit
that warrants overturning the Hearing Officer’s order. If anything, the arguments are untimely
and do not relate to justification for requiring that the documents in question be turned over to
the Petitioner.
-
36.
The Illinois EPA strongly believes that that Hearing Officer’s order should be
affirmed. However, in the event that the Board decides to overturn any part of the order, the
Illinois EPA hereby requests that any information contained within the IRT or database that
relates to any budget review other than a HCAP budget or any rates that are not at issue in the
-
final decision be redacted. For all the reasons raised herein, as well as in the Illinois EPA’s
response to the motion to compel, that sort of consideration should not be reached since the
Hearing Officer’s order should be affirmed with no qualifications or conditions.
WHEREFORE, for the reasons stated above, the Illinois EPA hereby respectfully.
requests that the Board enter an order denying the Petitioner’s motion for interlocutory appeal
and affirm the Hearing Officer’s order dated December 2, 2003.
.
13
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
~‘t~Y~j,
J J.Kim~/
t~~f~)
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December
15,
2003
This filing submitted on recycled paper.
14
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on December
15,
2003, I served
true and correct copies of a RESPONSE TO MOTION FOR INTERLOCUTORY APPEAL, by
placing true and correct copies in properly sealed and addressed envelopes and by depositing
said sealed envelopes in a U.S. mail drop box located within Springfield, Illinois, with sufficient
First Class Mail postage affixed thereto, upon the following named persons:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
(Fax delivery and hard copy)
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL 62794-9274
(Hand delivery)
Fred C. Prillaman
Mohan, Alewelt, Prillaman & Adami
Suite 325
1 North Old Capitol Plaza
Springfield, IL 62701-1323
(Fax delivery and hard copy)
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
hnJ.Kim~1
q~.)~v~/vh(~)
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
