ILLINOIS POLLUTION CONTROL BOARD
    November 17,
    1988
    CONTAINER CORPORATION OF AMERICA,
    )
    Petitioner,
    )
    V.
    )
    PCB 87—183
    ILLINOIS ENVIRONMENTAL PROTECTION
    )
    AGENCY,
    )
    Respondent.
    ORDER OF THE BOARD
    (by J. Anderson):
    This matter comes before
    the Board on the Motion
    for
    Sanctions filed
    by
    the Respondent,
    Illinois Environmental
    Protection Agency (Agency)
    on November
    2,
    1988.
    Petitioner,
    Container Corporation of America
    (CCA)
    filed
    its response on
    November 14,
    1988.
    The Agency’s motion requests the Board essentially to debar
    CCA from arguing,
    introducing testimony,
    or producing evidence
    tending
    to show that purchase,
    installation, operation and
    maintenance of Volatile Organic Material
    (VOM) control equipment
    at its facility
    is economically unreasonable and/or would cause
    an economic hardship for CCA or
    its parent company.
    It also asks
    the Board
    to debar CCA from using any expert witness not
    previously identified to the Agency.
    The requested sanctions
    appear
    to be germane to the discovery requests served upon CCA
    by
    the Agency.
    The Agency’s motion and attachments,
    including the Hearing
    Officer’s discovery Order of October
    19,
    1988,
    disclose that the
    Agency attempted three times
    to elicit responses from CCA to its
    informal discovery requests prior
    to filing with the Hearing
    Officer
    its October
    17, 1988,
    Motion
    to Compel Answers
    to First
    Set
    of Interrogatories
    and
    to Compel Production of Documents. The
    first discovery
    request was served
    on CCA
    on or about July 26,
    1988,
    and requested answers be provided within
    28 days, pursuant
    to Supreme Court Rule 213
    (Ill.
    Rev. Stat.
    1987,
    ch.
    llOA,
    par.
    213) and 35
    111. Mm.
    Code 103.161.
    The companion Request for
    Production of Documents requested that the documents be provided
    to the Agency at
    its Maywood, Illinois,
    offices on August
    29,
    1988.
    No response was received
    to either request.
    The second
    request was made by letter
    of September 6,
    1988,
    from the Agency’s attorney
    to counsel for CCA, repeating the
    original request.
    Noting that the hearings
    in this matter had
    been set for October
    6
    and
    7,
    1988,
    the Agency sought
    a response
    by September 19,
    1988,
    to the First Set of Interrogatories and
    93—415
    —2—
    production of documents by September 26,
    1988.
    Again no response
    to either request was received by September
    26.
    On September
    29,
    however, Petitioner did provide at least
    a partial response to
    two
    of the twenty—four interrogatories.
    Shortly after providing the partial response of September
    29,
    counsel for CCA promised in
    a telephone conversation with the
    Agency’s attorney that the Agency would be provided answers to
    the remainder
    of the discovery requests by October 11,
    1988.
    This deadline also passed without a response to the discovery
    requests.
    On October
    17,
    1988,
    the Agency filed with the Hearing
    Officer
    a Motion to Compel Answers
    to First Set
    of
    Interrogatories and to Compel Production of Documents.
    On
    October
    19,
    after consulting with counsel for CCA, the Hearing
    Officer issued the requested Order, calling for submission of the
    requested materials by October
    31,
    1988.
    In his Order,
    the
    Hearing Officer specifically noted
    that Counsel for the
    Petitioner had advised him that “there were no objections
    to said
    motion”.
    Once again,
    no response was received by the deadline.
    The Board did finally receive the CCk response
    to the discovery
    order
    on November 4,
    1988,
    although the CCA response to the
    motion recites that the Agency’s counsel evidently did not
    receive
    a complete response until November
    8,
    1988.
    In
    its response to the motion, CCA states the issue before
    the Board
    as being
    “whether the Board should
    bar CCA from
    presenting any of
    its claims of economic hardship
    in this
    proceeding because CCA was four days late in responding
    to
    a
    Hearing Officer’s discovery order”
    (pg.
    1).
    Petitioner then
    stated
    that “since sanctions may only be imposed
    for failure
    to
    obey orders of the Board or Hearing Officer, CCA will restrict
    its response to the events surrounding CCA’s response to the
    Hearing Officer’s October 19,
    1988 order”
    (pg.
    1).
    CCA thereupon
    describes problems encountered by counsel
    for CCA
    in getting
    compiled information
    from key CCA personnel (noting the departure
    of the former General Manager
    of the facility
    in question,
    the
    resulting extra workload on the Plant Superintendent, schedule
    conflicts confronting
    the Project Engineer, competing demands for
    information from the USEPA
    in another matter,
    and the unexplained
    unavailability of the Day Shift Supervisor).
    This information
    was evidently not provided
    to counsel
    for CCA until November
    1,
    1988,
    the day after the deadline
    imposed
    by the Hearing Officer
    Order.
    CCA’s counsel then describes the various schedule
    conflicts and coordination problems which prevented counsel
    from
    being able
    to assemble the data into
    a formal response until
    November 4,
    1988.
    CCA concludes
    (pg.5)
    that “there
    is
    no factual support” for
    the Agency’s assertion that
    it had been prejudiced by
    the delay,
    which cc; characterized as
    “the four day late response
    to
    its
    discovery request”.
    cc;
    states that its counsel contacted Agency
    counsel on November
    10, 1988,
    and offered
    to agree
    to yet another
    93—416
    —3—
    continuance
    if
    the Agency wanted one
    to avoid
    any resulting
    difficulty.
    The Agency’s counsel declined
    the offer,
    leading CCA
    to suggest that “it cannot
    be said that the Agency has been
    in
    any way prejudiced by the extremely brief delay in receiving
    CC;’s discovery responses”
    (pg.
    5).
    It must be understood
    from the outset that the Board does
    not accept the Petitioner’s version of the facts
    of this
    matter.
    The facts as revealed
    by the Agency’s motion and
    attachments
    are not materially contested by Petitioner, which has
    chosen instead to focus only on the time period following the
    Hearing Officer’s Order
    of October
    19,
    1988.
    These
    facts
    disclose
    a pattern of delay and unresponsiveness stretching
    across
    at least two months,
    not merely four days.
    It
    is obvious
    that CCA made
    no substantial effort •to comply,
    contest
    or
    communicate regarding
    the Agency’s discovery requests until
    the
    Hearing Officer
    issued
    his Order
    of October
    19.
    Hence,
    to the
    extent that Petitioner’s personnel problems and schedule
    conflicts prevented
    a timely response to the Order,
    such
    difficulties seem largely self—inflicted.
    CCA does not explain
    when, why,
    or for what period
    of time the several key personnel
    were
    not available,
    nor does
    it explain whether such
    unavailability was known as
    of the date its counsel advised the
    Hearing Officer that
    there was
    no objection to the motion;
    it
    does not specify when the competing USEPA information request was
    received, when it was due, when it was actually submitted or what
    consequences would attend
    a tardy submittal to USEPA.
    CCA does
    not describe efforts
    to timely communicate with the Agency,
    the
    Hearing Officer,
    the Board
    or the USEPA regarding any time
    pressures
    or
    to attempt
    to seek relief
    from such pressures.
    The Board also rejects the implicit assumption by Petitioner
    that,
    since sanctions may only
    issue
    for failure to obey orders
    of the Board or Hearing Officer,
    the Board cannot or need not
    consider
    the circumstances leading up
    to the issuance of
    such an
    order.
    To do so would strike at the heart of the normal
    discovery process,
    rendering informal discovery requests
    virtually worthless,
    rewarding dilatory tactics and necessitating
    increased and more immediate resort
    to the Board and its Hearing
    Officers.
    As the Petitioner would have
    it,
    discovery requests
    not embodied
    in
    a formal
    discovery order can be simply ignored
    without consideration for advancing the progress of the case or
    for conserving
    the resources of the Board.
    Finally,
    the Board rejects the Petitioner’s contention that
    the record before
    the Board does not support
    a finding that the
    Agency was prejudiced by the delay caused by Petitioner’s failure
    to timely accomplish response to discovery requests.
    Taken as
    a
    whole,
    the record well illustrates
    that the Agency has been
    thwarted
    for
    almost two and one—half months
    in preparing
    for
    hearings
    in this proceeding.
    Insofar
    as further delay is not
    sought by the Agency and can only
    inure
    to the benefit of the
    Petitioner,
    the Board
    is
    reluctant to say that the Agency’s
    refusal of
    a further continuance necessarily means
    it has not
    93—417
    —4—
    been prejudiced.
    It may mean only that the prejudice in this
    case
    is not so great
    as
    to prevent
    it from being able
    to prepare
    for the hearings now scheduled for December
    14,
    1988.
    The Board construes the Agency’s
    refusal of another
    continuance as manifesting
    its desire and ability to get on with
    the hearings.
    The Board shares that desire.
    In this case,
    grant
    of
    the Agency’s Motion For Sanctions merely invites more delay
    in
    a proceeding that has already taken more than
    a year
    to reach
    the
    hearing stage.
    It would also appear
    to
    be unnecessary insofar as
    the Agency now has the requested discovery responses and is
    evidently prepared
    to proceed.
    Consequently,
    the Board will deny
    the Agency’s Motion For Sanctions;
    however,
    in keeping with
    its
    foregoing conclusions,
    the Board will direct that further
    delaying actions not
    be allowed by the Hearing Officer.
    For
    the foregoing
    reasons
    the Agency’s Motion For Sanctions
    is denied.
    The Hearing Officer
    is directed
    to deny any request
    for continuance
    in this proceeding.
    Hearings are to
    he conducted
    as currently scheduled,
    except
    as otherwise directed by order
    of
    the Board.
    IT IS SO ORDERED.
    J.
    T. Meyer dissented.
    I,
    Dorothy
    !1.
    Gunn, Clerk
    of the Illinois Pollution Control
    Board,
    hereby certify that ~he
    above Order was adopted on
    the
    /7~~
    day
    of
    /7~t-~A~-’
    ,
    1988 by a vote
    of
    ~
    ~/
    Dorothy
    M. ~inn, Clerk
    Illinois P~lutionControl Board
    93—418

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