ILLINOIS POLLUTION CONTROL BOARD

October 2,

1980

CELOTEX CORPORATION,

Petitioner,

)

 PCB 78—177

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

ORDER OF THE BOARD (by

 I. Goodman):

Celotex’ September 23,

 1980 motion to reconsider the Board’s

Order of August 21, 1980 is granted.

The Order of August 21,

 1980 is amended to read “June

7,

 1979”

wherever the date “July

7,

 1979” appears.

 This amendment is

necessary because of typographical error in that August 21,

1980

Order.

In reconsidering the substance of Celotex’

 latest arguments

to the Board and the Respondent Illinois Environmental Protection

Agency in this matter

 (see also Celotex v.

 IEPA, PCB 79-145),

the Board finds them to be totally without merit.

Celotex is incorrect when it states that the Board never

reviewed the May 17,

 1979 Order of the Hearing Officer.

 (See the

Board Order of June 7,

 1979.)

Celotex is incorrect in its assertion that a July

2,

1980

motion to appeal

 a December 10,

 1979 Order of the hearing officer

was a timely protest.

Celotex’ plea that the Board erroneously affirmed the hearing

officer’s December 10,

 1979 denials of discovery depositions of

some 12 Agency witnesses is of no merit.

 The Board found that

the hearing officer did not abuse his discretion nor visit material

prejudice upon Petitioner in denying these depositions and ordering

the submittal of affidavits

 in lieu thereof.

Celotex’ last argument, that the Board did not address the

hearing officer’s rulings made during depositions or his rulings

denying the discovery of all “but the last in

 a series of permit

applications

...

 (all of

 which

 having been included by the

Agency in the record

...

 in this proceeding),” is without merit.

—2—

As to

 the former ruling,

 Celotex’ July 2,

 1980 motion, par.15,

reads

 in part:

 “Celotex requests

that

 the Board,

 in reversing the

Hearing Officer’s Orders dated November 20,

 1979 and December 10,

1979, thereby also undo the additional

 mischief done

b~y

the Hearing

Officer’s many erroneous rulings made during the aforesaid Miller

and Telford depositions

...

 which

 mischief, the pleading

continues

 “constitutes a denial of important Celotex discovery

rights,”

 “discovery into what information the Agency relied

upon in its consideration of a series of “Celotex permit

applications

 1973-1978”

 (see par.16).

 The Hearing Officer

found that the 1973 and 1974 Agency proceedings were not pertinent

to this proceeding, which proceeding “would have to rise or fall on

its

 own facts”

 (see par,16).

 This finding was neither unreasonable

nor an abuse of discretion,

 nor did it materially prejudice

Celotex,

 As the August 21,

 1980 Order found, the previous

permit proceedings can be, at most, only circumstantially

relevant to the 1978 facts and circumstances.

As to the latter (discovery of any hut the last of the

1973—1978 permit applications), Celotex itself states that “all

of the applications

 were

 included by the Agency in the record

in this proceeding.”

 Discovery of documents in the record

is unnecessary: inasmuch as Celotex seeks “the information the

Agency relied upon in its consideration of

 these

 applications,”

the previous paragraph herein addresses that matter.

Finally,

 the Board addresses the “vexaciousness” of “the

lip

service given by the Board in its August 21,

 1980 Order to complying

with the law,

viz

rMa

 &Co.

v.

 IEPA, PCB 78—14: Fox

Valley Grease Co.,

 Inc. v,

 PCB,

 et al,,

 76 Ill.App.3d 188

(2d

Dist,1979); §~5,32,

 and 40 of the Illinois Environmental Protection

 Act: and Amendments

 5 and 14 of the

U,

 S. Constitution.”

(Paragraph D,)

 Whether Osc~~?’1ay~r

is

 “tested in the Illinois

Court system” or not,

it

remains Board policy.

 The Board

did not act “in derogation” of ~

 by upholding the

findings of the hearing officer,

 The Board did not act “contrary

to the

5th

 and 14th Amendment

 mandates of due process by

upholding the findings of the hearing officer”

 (Celotex’ original

July

2,

 1980 plea being that these amendments “provide due

process guarantees

 for persons threatened by administrative

action”).

Celotex is ordered to comply with the August

 21, 1980 Order

of the Board mandating the completion of all hearings by October

10,

 1980,

 The Board’s findings in that Order

that

both parties

are fully able to

prove their respective cases

is

reiterated,

 IS SO

ORDERED,

Mr. Werner abstains.

—3—

I,

 Christan L. Moffett,

 Clerk of the Illinois Pollution

Control Bo~rd,hereby c1erjify that the above Order was adopted

on the

 CU’’

 day of

(~-4~-(-&.~

 1980 by a vote of

4!-c’.

rk

Christan L.

Illinois Pollution Control Board