ILL

INOIS POLLUT

ION

CONTROL

BOARD

August

10,

1984

WASTE

MANAGEMENT.

INC.

PCB

84—45

84—61

ILLINOIS

ENVIRONMINTAL

84~68

PPOTECTION

AGENC~,

ORDER OF THE

BOARD

(by

J.

D~Dumelle):

In

summary,

this

Order disposes

of

the

following motions

and

responses pending

before

the Board:

1)

The Agency~sJuly

27

Motion

for

leave

to file

addendum

to

the

record,

and

Waste Management~sJu:ly 30 response

in

opposition to ~motion to supplement the

record~

This

motion

is

granted.

2)

Waste

Management~sJuly 31 Emergency

Motion to expunge

a hearing

officer order of

July

27

allowing

the

hgency

to

file

instanter late

responses

to request

to

admit

facts,

subject to

verification of

deniais~

The

Agency

filed

the

missing verifi—

cations August

77

and

its

response

in

opposition

to the Motion to

expunge

on

August

9.

This motion

is

denied

on

its

merits, the

Board

granting

leave

for

interlocutory

appeal

on

~ts

own

Motion.

3)

The

Agency7s

August

1

Emeraer~cy Motion

for

leave

to

file interlocutory appeal,

to

vacate

a

July

23

ruling

releasing

certain notes

claimed

to

he subject to

an

attorney—client

privilege,

and

to

prohibit

use

of

said

notes~

The

notes

in

question

were

taken

by the

Agency~e

Larry

Eastep,

permit

manager

for

the

division

of

land

pol

lution

conrol,

during the

course

of

an

April

i2~

1984

meeting

held between

personnel

of

the

Agency

and

the

Office

of

the

Attorney

Genera1~

Waste

Management~s

response

in

opposition

was

filed

August

8~

The motion

for

interlocutory appeal

is

granted~.

The moticn to

vacate

and

the

motion

in

limine

are

denied.

4)

Waste

Management~s

July

i~ Motion

for

default

and

second

emergency

motion

for

sanctions,

the

Agency

s

responses in

opposition

of

Jul

20

and 23, and

Waste

Management’s

July

31

reply

thereto~

These

motions

are

denied.

---

Concerning the first and third motion

~t

is axiomatic

that,

in order to determine the correctness of an Agency

permitting decision “based exclusively on the record before

the

Agency”, the Board must have placed befo~eit the full

record.

The Board ha$ a~l~wedthe filing of :L~horator1reports as part

of

the record o~rsrpetitioner’s objection t~atthe Agency

has

recited only that they ~

have been re~evantto the Agency~s

decision making process”

(emphasis added)~

Given the amply

demonstrated

tact

that

pieces

of

~nfornation rightfully

contained

in the

~Agen~y

record’

have

been

disco~~~d ~n

various

locations

within

the

Agency,

the

Board

prefer

a

-

~s

stage,

to include

the

laboratory

testa

in

the

record,

As

regard~

the

t~step

notes,

ft

~-i

~rom

the

filings

that there ~s no qtestion concerning ~h

r~Icvanceof the notes

to the Agency decision, the only isave ociig that of whether

the

notes

are

subjeft

to

an

attorney—client

privilege,

The Board

has

not reviewed the document in question, oe~ has reviewed the

points and authorities provided by the ~tres

to the hearing

officer in aid of his in camera revie~ of

hrs material,

The

Board holds that the fI~F~asis for ~crencydecision-making

on

permits does not result in an expccta~ion ~ confidentiality.

However,

to

the

extent

that

the

subject

of

the

April

12

meeting

and the notes dealt with PCB 84—45,

filed April

9, this

information would properly be subject

ft

the attorney—client

privilege.

Based on the information presented to the Board,

the

Board finds no reason to reverse the dec-isijn of its hearing

officer.

In this context the Board notes the actions of the

hearing officer on July 23 were proper gr~~en

the exigencies of

the

situation.

Finally,

thc

T3oard also finds that

~t learing officer,

as

facilitator

of the discovery process, did net abuse his

discretion

in allowing a late Agency response to requests to

admit,

As

the

Agency noted, this action is amply suooortvo by case

law, and

Waste

Management has made no compell,re

s’ o~ingof

prejudice.

However, in so holding,

it is not the intention of the Board to

encourage

other than strict adherence to discovery deadlines.

The Board’s disinclination to impose sanctions at this time

is similarly not intended to reward failure to make production in

response to legitimate discovery requests~ As discovery requests

by each party have been voluminous,

and some discovery matters

have been presented to the

Board

for resclution,

the Board has

given

respondent the “benefit of the doubt

r

However,

Waste

Management

may renew its

motion

in the future, as and if it deems

necessary.

The

Board

notes

that

it

would

not

favor

use

of

the

default

mechanism

in

permit

appeals

as

a

sanction

for

any

discovery

default

by

respondent,

as

the

effect

~ou~d

~e

forfeiture

of

the

citizens’

right

to

a

healthful

environmeit

---

In conclusion

the Board notes toe

~,

es

ci

the

August

9

filing of Waste Management~srequest

Icr

rusing~

the

Agency

had

not

complied

with

the

hearing

ofticerit

July

20

oral

ruling

that

the

Agency

designate

which

of

the

‘locunents

filed

as

the

“record”

apply

which

of

th

three

cous~ idated

cases

on

or

before July 27~ Ito Board orders

toe

hcer’

to

accomplish

this

designation on

or

before

August

17

by

Indicating

on

each

document.

IT

IS SO ORDERED~

Board Memherc

3

Andereon and

~

i.

~ce

concurred~

I,

Dorothy

dl

Junn,

Cleric or

ct,c~

i

~xs

Pollution

Control

Board,

hereby

certify

that

te

an

e

Order

was

adopted

on

the

J~tZ~

day

of

Cz~

~‘,

1984

by

a

vote

of

c-c)

~1~/

~~4~)___

Do

0

‘~y

Cunn, Clerk

Illin~it

Pollution

Control Board

59~335