ILLINOIS POLLUTION CONTROL BOARD

May 5,

1993

STATE BANK OF WHITTINGTON,

)

Petitioner,

v.

)

PCB 92—152

)

(UST Fund)

ILLINOIS ENVIRIONNENTAL

PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD

(by J.

Anderson):

This matter is before the Board on the May

3,

1993 Illinois

Environmental Protection Agency’s (Agency) “Response to the

Board’s

March 11,

1993) Order Supplementing the Record.”

As an

initial concern, the Board notes that the Agency’s May

3,

1993

filing

is well over one month

late,

and also is not accompanied

by a motion to file instanter.

Given the time-driven

circumstances here

—

the decision deadline requires that this

matter be

decided at the Board’s May 20,

1993 Board meeting

-

the

Board will accept the Agency’s filing.

In order to avoid

prejudice, the Board will decide this matter today.

By way of background, on March 11,

1993, the Board granted a

motion by the State Bank of Whittington

(Bank)

to supplement the

record.

The Agency had not filed a response to the Bank’s

motion.

In part,

the Board directed the Agency to submit, within

14 days of its March

11,

1993 order, the original color

photographs of the excavation activities that were submitted to

the Agency prior to its decision in this matter.

The Agency did not file the color photographs ordered by the

Board.

The Agency stated that it had only the one set of

photographs submitted to it by the petitioner,

and that surrender

of possession would “violate Agency policy and result

in a

violation of Section

3 of the State Records Act,

5 ILCS 160/3”.

(Agency Resp. at 2.)

The Agency, citing a “right of public

access” provision of

5 ILCS 160/4 and the Board order, offered

substitutes.

The Agency filed a) copies of “enhanced”

zeroxed

black and white prints, and b) two color photographs from the

Agency’s Administrative Record, taken at different times and

admittedly not identical with the two photographs requested,

that

the Agency nevertheless asserts “do depict the same subject

matter and are taken from approximately the same view”.

(Agency

Resp.

at 3.)

The provision of the Public Records Act cited by the Agency

to support its refusal, section 160/3,

is not applicable on its

face.

The section is titled, and so addresses,

“Reports and

01 t~2-QQ2g

---

2

records of obligation, receipt and use of public funds as public

records”.

The “right of public access” provision is not

applicable

either.

That section,

160/4, addresses the right of

any person to have access to “any public records of the

expenditure or receipt of public funds”.

Regarding the Agency’s assertion that compliance with the

Board’s order violates Agency policy, we note that this is the

first time that the Agency has raised such an issue.

Even

assuming that such a policy exists,

in that the Agency had failed

to file any objection to the Bank’s motion to supplement, the

Agency has waived its right to make such an assertion at this

juncture.

Even if the Agency had timely raised this issue,

the

Agency’s proferred substitutes are unacceptable.

We note,

and so

find,

that the Agency’s desire to preserve its records cannot

serve to deny this Board evidence when the Board is acting in its

quasi—judicial capacity,

any more than would be the case with a

court.

The Agency is ordered to submit the two colored photos no

later than

5 days after the date of this order, i.e.,

Monday, May

9,

1993.

The Board reminds the Agency that any further delay

in

completing the record can affect the resolution of the issues in

this case.

The Board instructs the Clerk to return the photos, upon

Agency request, when this appeal

is finally resolved.

IT IS SO ORDERED.

I,

Dorothy N.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above order was adopted- on

~

day of

_________________,

1993,

by a vote of

~

~76Y

Control Board

01 L~.2-O03O