ILLINOIS POLLUTION CONTROL BOARD
April
6,
1995
INTERNATIONAL UNION, UNITED
)
AUTOMOBILE, AEROSPACE
AND
)
AGRICULTURAL IMPLEMENT WORKERS
)
OF AMERICA
AND
UAW LOCAL 974;
)
AND
CITIZENS FOR A BETTER
)
ENVIRONMENT,
)
Complainants,
v.
)
CATERPILLAR INC.,
)
PCB 94-240
(Enforcement—Land,Water)
Respondent,
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Party-in-Interest.
ORDER OF THE BOARD
(by CA. Manning):
This matter
is before the Board pursuant to a March 31,
1995
motion by the respondent, Caterpillar,
Inc.
(“Caterpillar”)
requesting “full Board consideration of complainant’s motion for
inspection of premises.”
Caterpillar is requesting that the
Board consider and immediately rule upon a motion currently
pending before the hearing officer in this case which was filed
by the International Union, United Automobile, Aerospace and
Agriculture Implement Workers of America and UAW Local
974
(“complainants”
or
“TJAW”)
on March 28,
1995
and which seeks
access to Caterpillar’s East Peoria facility (“Caterpillar site”)
to conduct a site inspection (“motion for site inspection”).
Caterpillar filed an objection to the complainants’ motion for a
site inspection on April
3,
1995.
The complainants filed a
response to Caterpillar’s motion for full Board consideration on
April
5,
1995 and also filed a reply to Caterpillar’s response.’
The Board hereby grants Caterpillar’s motion for full Board
consideration and denies the complainants motion for site
inspection.
The arguments regarding each of the motions are set
forth below.
1We
note
that the reply was unaccompanied by a motion for leave to file,
and that the Board’s procedural
rule,
Section 101.241(c),
does not provide an
automatic right to file a reply.
However, the Board may allow the reply in
order to prevent material prejudice,
and due to the importance of the matter
at hand,
the Board will allow the reply.
(see
35
Ill.
Adm.
101.241(c).)
2
CATERPILLAR’S
MOTION FOR FULL BOARD CONSIDERATION OF
COMPLAINANTS’ MOTION FOR A SITE INSPECTION
As a basis for its request that the Board render a decision
rather than the hearing officer, Caterpillar cites to the unique
nature of this site inspection request; that there is a question
of urgency due to the nearness of the hearing date of May 8,
1995;
that this request for a site inspection raises issues
regarding safety for Caterpillar employees in light of the
current labor dispute involving Caterpillar and the UAW; and
finally, that this matter involves important policy questions
regarding the use of discovery in a citizen enforcement action.
(Caterpillar Motion at 2.)
In response, complainants believe
that there is no valid reason to deprive the hearing officer of
her authority to enter an order pursuant to the discovery
provisions contained in the Board’s procedural rules,
35
Ill.
Adin. Code 103.161(a)(4).
(Complainants’ Response at 1-2.)
However, the complainants do agree that in the “interests of
affording the parties
a full investigation and airing of the
issues set forth in the complaint,” that the Board should
determine whether it will entertain the motion for inspection or
whether it will delegate the matter to the hearing officer.
(Complainants’ Response at 2—3.)
While issues of discovery normally would be dealt with by
the hearing officer in the course of conducting a fair hearing,
given the parties and their particular concerns, and in the
interest of administrative economy, we will grant Caterpillar’s
motion for full Board consideration.
COMPLAINANTS’ MOTION FOR SITE INSPECTION
The complainants’ motion for site inspection requests an
order from the hearing officer granting the complainants access
to the Caterpillar site for a period of
19 days from April
3,
1995 through April
21,
1995 for the purpose of making surface and
subsurface inspections, surveys and photographs.
(Complainant’s
Motion for Site Inspection at
2.)
The motion further states that
the complainants seek access to the land in and around Buildings
X and HH, and the land located southwest to west by northwest of
Building HH, between Building HH and the Illinois River.
(Complainant’s Motion for Site Inspection at 2.)
In response,
Caterpillar objects to the complainants having
access to the property to make a site inspection in total and
cites four bases:
(1)
Caterpillar is concerned with the safety of
its employees due to the on—going labor dispute between
Caterpillar and UAW;
(2) neither the Environmental Protection Act
(“Act”) nor the Board’s procedural rule at Section 103.161(a) (4)
allowing a reasonable site inspection,
authorizes an invasive
inspection comprised of extensive sampling, monitoring or
photographing;
(3)
extensive sampling, monitoring,
and
3
photographing have already been performed at the site for
purposes of characterizing the site; and
(4)
sampling the site
risks spreading any contamination on the site and that no
technical experts have been proffered regarding the proposed
inspection.2
Regarding each of Caterpillar’s objections,
first, the
complainants reply that all arguments concerning the labor
dispute are outside of the scope of the pleadings and should be
stricken by the Board.
Second, while the complainants do not
dispute that the Agency is the statutorily authorized entity to
conduct site investigations, under the Act and the Board’s
discovery rule,
35 Iii.
Adm. Code 103.161(a) (4), the complainants
should have the same access as the Agency for purposes of
discovery in order to “protect against inadequate prosecutions.”
Third, the complainants further dispute that any information that
they will gain as a result of a site inspection would be
duplicative or irrelevant;
the complainants insist that the
Agency’s investigation report
is wholly insufficient.
Also on
the issue of relevance of any information that could be gained
from a site inspection,
the complainants summarily point to the
complaint’s plain allegations of contamination of soil and
groundwater and that any information obtained from the site
inspection regarding contamination would be clearly relevant.
(.~.
at 19.)
Fourth, regarding Caterpillar’s final concern that
the complainants’ request is unreasonable and fails to provide
any information about the sampling plan or anything else,
for the
first time in the reply,
the complainants indicate, among other
things, that they would retain
a qualified environmental
engineering firm for any sampling and/or inspection and would
follow all Agency-approved sampling requirements.
Based on the arguments of the parties and our consideration
of the issues in this case,
we hereby find that a site inspection
to conduct surface and subsurface sampling, inspection and
photographing is overly burdensome and unreasonable in this case
at this time.
We therefore deny the complainants’ motion for
site inspection.
2Caterpillar further argues that complainants have not provided a
sampling plan for Agency approval,
a health and safety plan for the protection
of employees,
including Caterpillar employees,
a quality assurance/quality
control plan,
nor have the complainants shown how they plan to provide for
indemnification.
4
IT IS SO ORDERED.
I Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Bo1ard, hereby certify that the above order was adopted on the
~
day of
__________________,
1995,
by a vote of
7~O
Dorothy M/jGunn, Clerk
Illinois (pollution Control Board