ILLINOIS
POLLUTION CONTROL BOARD
December
6, 1984
tLLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
Complainant,
)
)
PCI3
79—145
CELOTEX CORPORATION and
)
PU~LP CAREY COMPANf,
)
Respondents.
ORDER
OF THE
BOARD
(by B
Forcade):
On November 15,
1984, Respondents, the Celotex Corporation
and Philip Carey Company (“Celotex”)
filed
a motion for recon-
sideration of a November
8,
1984 Board Order denying Celotex’s
application for non—disclosure.
On November
21, 1984, the
Illinois Environmental Protection Agency (“Agency”) filed an
objection
to
the
Celotex motion for reconsideration and
a
petition to the Board for a special Board meeting to decide
Ceiotex~s
motion for reconsideration.
Celotex filed a response
to the petition,
and a reply to the Agency objection on December
4,
1984.
Celotex’s motion for reconsideration provides an inadequate
basis
for Board
reconsideration of its November
8, 1984 order.
Celotex’s assertion that the issue of whether the material in
question
is
subject to discovery was not properly before the
Board is
clearly erroneous.
Celotex, itself,
raised the dis-
covery issue when it denied discovery requested by the Agency
based on
the
attorney—client privilege and the work—product
doctrine.
The hearing officer’s Orders of October
5 and 15
referred
the
discovery issue to the Board,
After examining the
document in question, the Board determined that the information
was
discoverable under Illinois case law and statute.
The Board
reaffirms
that holding here.
The issue
of whether a document is discoverable and whether
a document
in the Board’s files
is subject to public scrutiny are
clearly
separate issues; both were properly before the Board.
The
hearing
officer has all necessary authority to rule on
discovery issues,
including in camera inspections and protective
orders to
prevent
public disclosure of discovery material secured
by parties,
Section
103.200(c).
However, only the Board may rule
on whether information in the Board’s files may be witheld from
public scrutiny.
Since Celotex’s claim for non—disclosure was premised on
attocney~-clientand attorney work product privileges, disposition
of the discovery issue necessarily disposes of the non—disclosure
issue.
As pointed out in the November 8, Order,
Section 7(d)
of
the
Act also requires disclosure.
Celotex responded to Complainant’s
statement No,
7
regarding
“materials disposed of at the landfill
at
issue,” not
by denying
the existence of
such information, but
by claiming confidentiality.
Celotex’s current argument
is that the Board had no basis for concluding the confidential
documents
perta.ined to material
“being placed or to be placed
in
landfills..”
The connection between “materials disposed of” and
“substances being
placed” seems clear to the Board.
The Board’s
November
8 Order was a Final Order on the issue of non—disclosure
under Section 7 of the Act and the 35—day time clock runs from
that date..
However, under Section 103.240, Celotex’s 35 day clock
starts anew as
of
today’s Order.
The Agency has stated, in its petition requesting a special
Board meeting,
that Celotex has withheld the information found to
he discoverable subsequent to the Board’s November 8,
1984 Order.
Since a Board Order compelling production of information
is not
stayed
by a
motion for reconsideration 35
Ill. Mm. Code 103.140(h),
any failure to timely produce such information would be a violation
of the Board’s Order,
The Board is unable to see any purpose
that
will be achieved by holding
a special Board meeting and the
Agency’s petition is denied,
On November 15,
1984,
in an unrelated filing,
the Agency
submitted an application for non—disclosure, motion to file
instanter,
and the subject material in an envelope labelled “Not
Subject to Disclosure.”
In accordance with 35
Ill. Adm. Code
10L107(c)(3), the subject material has been afforded confidential
status pending a prompt ruling by the Board.
Celotex filed an
opposition to the application and motion on November 26,
1984 and
the Agency filed a response on December 4, 1984.
This issue arose from a discovery request by Celotex for
production of the “brochure” prepared by the Agency and submitted
to the Attorney General which describes in detail certain evidentiary
material,
legal theories and strategies.
The Board has reviewed
the subject document in camera.
The brochure, dated September
15,
1978,
is the documentary mechanism
by which the Agency referred
the case material that became PCB 79—145 to the Attorney General.
The cover
letter
of the brochure requests that the Attorney
General
review the material contained within and decide whether
an enforcement action should be filed before the Board.
The
brochure outlines general background information about the Celotex
facility,
Agency regulatory history concerning the facility, a
listing of alleged violations of the Act and regulations,
a table
listing specific pieces of evidence that prove specific alleged
violations,
a list of potential witness that could be utilized
in
an enforcement action, and a proposed remedy for such violations.
The Agency attorney states by affidavit that the material
in
question is privileged against production in
a judical proceeding
61-326
3
under the attorney-client privilege.
The attorney also describes
the general nature of the material, who prepared the material and
in what context, and lists eight people who are familiar with the
subject material;
each
of
whom
are
either
Agency
technical
or
legal
staff
or assistant
attorneys
general.
Celotex
argues
that
the
Agency
has
not
sufficiently
alleged
the
elements
of
the
attorney~’clientprivilege,
The
Board
is
presented
with
two
issues, whether the referral brochure is discoverable material
and whether
the
material may be disclosed to the public under
Section
7 of the Act and 35
Ill. Adm. code 101.107.
The Board finds that the referral brochure
is not subject to
discovery
as it conforms with the elements of the attorney—client
privilege as outlined by the Illinois Supreme Court in !~ple
v.
Adam,
51
Lii.
2d 46,
280
N.E.2d
205
(1972).
There the court
outlined the “essentials of its creation and continued existance”
as foilows~
“‘~1)Where legal advice of any kind
is sought
(2)
from a professional legal advisor in his
capacity as
such,
(3) the communications relating
to that purpose,
(4)
made. ~
confidence,
(5) by
the
client,
(6)
are at his instance permanently
protected,
(7)
from disclosure by himself or by
the
legal advisor,
(8) except the
protection
be
waived,.~
8 Wigmore, Evidence,
Sec.
2292
(McNaughton
Rev.
1961)”
280
N.E,2d
at 207.
While
the
attorney—client relationship
between
two
agencies
of government such as the Illinois Environmental Protection
Agency
and
the
Attorney
General
has
some
unique
aspects,
it
is
generally analagous
to
more
typical
attorney—client
relationships.
The
7~gencysubmitted
the
brochure
to
the
Attorney
General
in
anticipation
of
legal
advice
regarding
a
potential
enforcement
suit.
The
Attorney
General
was
consulted
in
his
capacity
as
constitutionally
designated
legal
representative
of
the
Agency.
The
communication,
in
the
form
of
the
referral
brochure,
related
to the
purpose
of
legal
advice
regarding
that
potential
enforcement
suit.
The brochure
was
kept
confidential,
Only
a
limited
number
of
Agency
and
Attorney
General
staff
‘were
allowed
to
view
the
document.
The
communication was made by the Agency in
its
capacity
as
a
legal client
to
the
Attorney
General
and
the
Agency
has
endeavored
to
keep
the
document
from
being
disclosed
by
the
Attorney
General and
has
not
waived
the
privilege.
The
brochure
is
therefore net
subject
to
discovery.
The
decision
regarding
application
of the
privilege
disposes
of
the
statutory
disclosure
issue..
Because
the
brochure
is
privileged against introduction
in a
judicial
proceeding
under
the
attorney—client
privilege,
the
brochure
is also
protected
from
public disclosure under Section
7(a)(2)
of
the
Act,
The
Celotex
“Motion
for
Reconsideration
of
Board
Order
Denying
Celotex
Discovery,”
dated
November
15,
1984,
is
denied.
The
Celotex
“Motion
to
Strike
Hearing
Officer
Order
Regarding
4
Site
Inspection,”
dated
November
27,
1984,
is denied.
Any
possible prejudice to Celotex
was
cured
by
the
hearing
officer’s
Order dated December
3,
1984,
which
the
Board
has
reviewed
in
light
of
Celotex’s
December
5
motion
and
declines
to
strike.
The
Celotex
“Motion
to
Board
to
Bar
Certain
Witnesses’
Testimony
at
the
Hearing,”
dated November 30,
1984
is
denied
to
the
extent
that
it
requests
the
Board
to
rule
on
the
issues.
The
conduct of
the
hearing
is
primarily
the
province
of
the
hearing
officer,
35
Iii. Mm. Code Part 103,
Subpart
F.
All motions,
except dismissal, must be directed to the hearing officer, Section
103,140(e).
Only
in the most unusual of circumstances will the
Board entertain a motion within the scope of the hearing officer,
absent a referral pursuant to Section 103.140(f).
No such cir-
cumstances are presented here.
The parties are encouraged to
clearly delineate whether a motion is directed to the Board or to
the hearing officer to aid
in proper docketing of motions.
The Agency on December
3,
1984, filed
“An Emergency Motion
for Continuance of Hearing.”
Paragraph
2 of that request clearly
presents unusual circumstances; the motion is granted.
Hearing must be held
in this matter not later than January
28,
1985.
The hearing officer can make such adjustments to any
pre—hearing schedules as justice requires.
IT IS SO ORDERED.
I,
Dorothy M, Gunn,
Clerk
of
the
Illinois
Pollution
Control
Boar,~1, hereby certify that the above Order was adopted on
the
_______
day
of
______________,
1984
by
a
vote
of
_________
O~~i
~.
/~‘
~
Dorothy
M.
~unn,
Clerk
Illinois
Pollution
Control
Board