ILLINOIS POLLUTION CONTROL BOARD

February 9,

1984

TOWN O~’ ST.,

CHARLES,

Petitioner,

PCB 83—228

KANE

COUNTY

BOARD

AND

ELGIN SANITARY DISTRICT,

Respondents.

CITY OF

AURORA,

Petitioner,

V.,

KANE

ELGIN

COUNTY

BOARD AND

SANITARY DISTRICT,

Respondents

PCB 83—229

PCB 83—230

THE KANE COUNTY DEFENDERS,

INC.,

ET AL.,

Petitioners,

V.,

KANE COUNTY BOARD AND

ELCIN

SANITARY DISTRICT,

Respondents.

Order of the Board

(by

J.,D.

Dumelie):

This matter comes before the Board upon a February

8,

1984 emergency motion filed on behalf of the Kane County

Defenders requesting the reversal of various hearing

officer rulings related to discovery.

That motion indicates

that service was made upon

all parties at or before 9:00 a.m.,

on February

8,

1984.

Since hearing

is presently scheduled

for February 16,

1984 and a Board decision is due on March

8,

1984,

exigincies of time require

a prompt ruling, and in turn,

response time is necessarily highly limited.

Therefore,

the

Board permitted oral argument at its February 9,

1984 meeting.

56-171

---

The

Kane

Cnu~y

:~edenctc~rsrequest

the

Board:

1.

to

a~1’~w

ciscovery

into

relevant

issues

narrowly

defined

by

r)~C~:)~~

~td.out.

dfl~

prior

showing

that

such

evidence

exE;t

~:

2.

to

~ecei

t

:~~ie~

~n c

:i~nstv

at

client

discovery

regardino spec~JL~~.c~cn

tnnn n

cer

November

8,

1983,

the

date

Responden

hi

~

tOuNT~. BO~d~)

(‘~c.ounty

Board”

)

approved

the

siudqe

site;

30

to

peruh~t i~quiry

ci

Mombcro

of

the

County

Board

regarding ex 2~1te

contacts

with

employees

and/or

repre—

sentat:ivos

of

flesponderit

CLGIN

dANITARY DISTRICT

(“District”);

4,

to

include

copies

of

the

draft

Findings,

Resolution

and Order proposing

to

deny approval

of

the

proposed

site,

and

to

permit

inquiry

at

deposition

w:Lth

respect

thereto.

The

hearing

cfficer~

s

rulings

are

affirmed

with

respect

to

requests

1,

2

end

~

und

reversed

with

respect

to

request

3.

Regarding

request

L,~ the

hearing

officer

properly

concluded

that

the

faihire

to

produce

documents

which

were

actually

requested

prior

to

the

close

of

the

County

Board

record

and

were

not

produced

goes

to

the

fundamental

fairness

of

the

proceeding0

HOWCVOL

•

iocumencs

wh:Lch

~iere

not

no

req~er~tod and

wh~ch,

therefore,

were

never

properly

brought

to

the

attention

of

the

Kane

County

Board,

are

not

prope~iv

di ‘~covecanin

in

~h~t

the

County

Board’s

actions

~ouIc

~

~

~np~ie~

~

i~~ndamental fairness

of

the

proceeding~.

Len

~:an:~

L~at

such

documents

may

impact

substantive

issues~

they

are

irrelevant

since

they

were

not

made

part

of

trie

record

upon

which

the

County

Board’s

decislon

WdS

OCCOC.

Regarding

request

2,

the hearing

officer

properly

concluded

that

actions

taken

after November

8,

1983, are

not:

discoverab~.e.

‘The

hane

County

Defenders

argues

that

it

desired to

h:troduce

newly

discovered

evidence

and

that

the

County

Board

shoeld

have

considered that

evidence

upon

reconsideratic,i s~cce Thu

aoinsnictrat~ve

agency

may

reopen

its

determination

to

nermit

the

introduction

of

further

evidenced

2

Ah

JJd

~nd

Adnio~.strative

r,aw

§

525

(1962)

However,

soch

cnccnnlaerat,Lon

i.’-

discretionary

and

the

County

Board

did

not:

~3ermt:

it.

Therefore,

the

record

closed

on

November

8,

i~83,

and

ac:ions

taken

after that

date

are

irrelevant,

ann

no

allegation

was

eade

that

such

discovery

would

lead

to otherwise relevant evidence,

Regarding request 3~the hearing officer is

overruled.

In denying discovery regarding ex parte

contacts,

the hearing

officer

relied

on

a Board

Opinion

which

was

reversed

by

the

appellate

court,.

In

that case the

court

specifically

56- 172

---

that even •thougl

the co—applicant and

the

local

unit of

government wh~c:vas passing on a landfill

siting

issue

consisted

of

the

sa~an

peisons that ex ~rte

contacts

could

be

improper..

Ler~,

.here

it

not

an

identity of

such persons

and the possibility of impro~rex

~

contacts

more

closely exists (~uc ~&EHau1in~,

etal,

V.

PCB,etaL,

slip

op.

pp~ 29~3i,

Second

Di...trict,

June

15,

1983).

Regarding

..eluc~:

4,

tee

eea~i

ig

officer

properly

excluded draft

findings, resolutions and orders.

They are

no

more than written mental processes.

They

are not public

documents

put

out

fot

com~rent.

So

far

as the

Board can

determine,

they

were

not

distributed

to

anyone other than

County

Board

members

and

not

even

to

all of

them.

While

Section

ii

of the Administrative Procedure

Act

indicates

that proposed

findings

shall be made part of

the

record

in

a

contested case,

thot

appears

to

be

directed

to proceedings

where

such

findings

are

required

to

he

made

(see

Section

13

of the Administrative Procedure Act).

Such was

not the case

here0

Finally

n teQonse to the oral request of

counsel, the

Board is also add’ es.~Jngcone of the additonal issues

raised

by the Kane County Leteliders in its February

2,

1982

Emergency

Motion to Com~~eLDiscovery and to: Sanctions,

which

had

been

mooted

in

part

by

a

pre~hearin~

conierence

held

on

February 6.

The Board

at

thi.~ ti~.

decline.

ti

impose

sanctions

on respondents

for failure to respond to what have been highly

contested, and

partially

misunderstood,

di~co~cr~orders0

The

request

for

attorneys ices ant c

sts wi

I

be taken and considered

with the

case

0

IT

15

SO

ORDEPED,

I, Christan

L.

Moffett, Clerk of the Illinois

Pollution

Control Board,

~ereby certify that the above Order

was

adopted on the

9”~

day of

1984 by a

vote of

~staL.~fett,rk

Ilsinois

Poilution C

rol Board

56473