ILLINOIS POLLUTION CONTROL BOARD
January 10, 1991
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
PCB 90—161
v.
)
(Enforcement)
COLUMBIA QUARRY COMPANY,
)
)
Respondent.
ORDER OF THE BOARD
(by J.D. Dumelle):
This matter comes before the Board by virtue of Columbia
Quarry Company’s (“Columbia”) motion filed on November
26,
1990.
Pursuant to 35 Ill.
Adm. Code 101.280, Columbia requests
that the case at bar be dismissed or
in the alternative, that the
Illinois Environmental Protection Agency (“Agency”)
be precluded
from presenting any witnesses or documentation
in support of
their complaint due
to the Agency’s failure to adhere to the
discovery deadline.
In support thereof, Columbia asserts that the instant
complaint was filed by the Attorney General’s
office
on or
about
August 15,
1990 and that the company filed a timely answer on
September
5, 1990.
In addition to its answer, Columbia also
filed a discovery request on September
5,
1990.
Due to that
request,
on September
11,
1990 the hearing officer issued a
scheduling order setting the discovery cutoff date as October 12,
1990 and a hearing date of November
2, 1990.
By Columbia’s
motion of October
1,
1990,
the company requested and was
subsequently granted a continuance of the hearing date to
December
21,
1990 with a new discovery deadline set for November
2,
1990.
Due to the fact that the discovery requested by
Columbia had not been produced by November
12,
1990 the company
sought
a second continuance of the hearing date.
With this
in mind, Columbia alleges that the complainant has
unreasonably refused to comply with the discovery orders in
addition to the provisions contained within
35 Ill. Adm. Code
Sec.
101.261.
Columbia asserts that the complainant’s failure to
adhere to the discovery cutoff dates has been so severe as to
unreasonably hinder and prevent the company from adequately
preparing its defense
in this matter.
In response, the Attorney General’s office,
representing the
Agency in this
matter,
admits that the discovery was late.
At
the same time,
however,
the complainant has filed an affidavit
stating that the Attorney General’s Office forwarded the
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discovery request to the Agency’s attorney on September
7,
1990.
The affidavit further states that there was no indication
on the part of Columbia that the discovery material requested was
urgent until November
9,
1990
—
after the settlement negotiations
broke down.
On November
20,
1990 the Assistant Attorney General
sent Columbia’s first discovery request.
At this juncture, it
was approximately seven weeks overdue.
In assessing the chronological sequence of events in this
case,
the Board finds that the sluggish pace on the part of the
Agency
is, at best,
less than ideal.
Yet
it does not rise to the
level of dismissing the case,
nor does
it warrant the preclusion
of evidence.
Had counsel for Columbia initiated a motion to
compel or otherwise objected to the lack of information
forthcoming pursuant to the scheduling order,
the Board might
well feel differently.
However, Columbia
made
no protest until
after
it became clear that a settlement
could not be reached.
In fact,
it was Columbia who filed a motion for continuance
of the hearing date on October
1,
1990 almost two full weeks
prior
to the discovery deadline of October 12,
1990.
The second
continuance was also filed by Columbia three days after
settlement negotiations stalled, but eleven days after the
November
1,
1990 discovery deadline imposed by the hearing
officer.
In short, Columbia had a number of options to pursue in
regards to the late discovery, but
it merely sought to continue
the matter.
Moreover, Columbia has failed to demonstrate how the
delay in obtaining the discovery material did hinder or otherwise
interfere with its defense preparation.
Finally the Board’s Procedural Rules, Sec. 101.280 states
that:
If a party or any person unreasonably refuses
to comply with any provision,..or fails to
comply with any order entered...by the hearing
officer...the Board will order sanctions.
35 Ill. Adm. Code,
Sec.
101.280(a)
Here Columbia has failed to demonstrate that the complainant has
unreasonably refused or failed to comply with the hearing
officer’s order,
but only that complainant was late in doing
so.
On the contrary,
the affidavit of the Assistant Attorney
General handling the case asserts that he sent the discovery
request to the Agency on September 7,
1990
-
the day he received
it.
In short,
the delay here does not rise to the level of
dismissal,
nor does
it warrant the preclusion of the evidence
contained within the first discovery request.
Accordingly
Columbia’s motion is denied.
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IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that
he above Order was adopted on
the
____________
day of
1991 by a vote
Control Board
118—15