ILLINOIS POLLUTION CONTROL BOARD
December 23,
1986
JOLIET SAND AND GRAVEL COMPANY,
)
Petitioner,
v.
)
PCB 86—159
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by 3. Anderson):
This matter comes before the Board upon various filings
addressing a Hearing Officer Order dated December 17.
This Order
requires,
inter alia, the Agency
to produce certain document
discovery on or before 12:00 p.m.,
December
24,
1986.
On
December 19,
the Illinois Environmental Protection Agency
(Agency)
filed two emergency motions which request that
1) the
Order be stayed until
the next regularly scheduled Board meeting,
and
2)
that the Order
be overruled
in certain respects.
Also on
December
19, Joliet Sand and Gravel Company
(Joliet) filed
a
motion requesting that other portions of
the Order
be
overruled.
On December
22,
the Board scheduled and noticed
a
special meeting
to handle these matters,
and advised the parties
that responses should be filed on or before 11:00
a.m., December
23.
Each party has responded to the other’s motions.
The motion for stay
is denied,
as this Order disposes of the
motions to overrule.
The Agency’s motion
is granted
in part and
denied
in part.
Joliet’s motion
is denied.
In responding
to these filings,
the Board has reviewed the
entire
record which has presently been docketed and filed with
the Board.
The Board notes that this excludes transcripts of
the
December
8 and 15 hearings,
as well as numerous deposition
transcripts which have not been filed.
Under such circumstances,
the Board
is loathe
to disturb the rulings
of its Hearing
Officer, who
is more closely attuned
to the day to day
development
of a case in progress.
However,
as noted by the
Board in its Order
of December
18,
this case must be decided by
the Board within 120 days of its filing on or before January 28,
1987 consistent with the Board’s duty to prevent issuance of
a
permit by operation
of the default mechanism of Section 40(a)
of
the Act.
The hearing
is scheduled for January 13,
and while
substantial discovery has been had, substantial discovery
requests
remain outstanding.
74-334
—2—
The ultimate
issue to be resolved
in this case
is whether
the Agency correctly denied renewal
of Joliet’s air operating
permit for
the reasons stated
in the denial
letter, reasons which
are,
in essence, that Joliet had failed to provide sufficient
information to prove
that particulate controls for its stone
crushing operation are sufficiently effective
to insure
compliance with the Act and specific Board regulations.
The request for discovery posed
by Joliet to the Hearing
Officer was essentially one for discovery of every item of
information contained in the Agency’s files and computer system
concerning Joliet’s operation, whenever generated and whether or
not considered in the process of the Agency’s review of the
instant permit application.
Other than those identified by the
Agency as having knowledge
of facts relevant to the denial of the
application, persons requested to be produced for deposition
include those knowledgeable about data input into the computer
system,
as well as the Director of the Agency and various named
employees.
See Agency Response to Interrogatories,
10—28—86,
Answer
1
at pp.
1—4.
The Hearing Officer’s Order has narrowed
the scope
of material
to be produced, but requires production of
information which does not appear to be “reasonably calculated
to
lead to discovery
of admissible evidence or
is relevant to the
subject matter involved
in the pending action”
(35
Iii. Adm. Code
103.161).
The Board will not address every aspect of each motion
in
detail,
due
to the short time available for preparation of this
Order,
although each request has been considered.
The essence of
the Agency’s motion
to overrule
is that
it
is unduly burdensome
to produce,
in
a one week time span,
“the entire body of Agency
knowledge” concerning this source and seeks further
limiting of
the scope
of discoverable material.
Joliet,
for
its part,
essentially asserts that the Hearing Officer should be overruled
insofar as he has declined to order production
of information
“calculated
to lead
to the discovery
of admissible evidence”.
It
is beyond question that
if
a source receives all
information concerning
it which the Agency possesses,
that
it can
absolutely assure itself that the Board is privy to all
information upon which
the Agency relied or reasonably should
have relied.
As
a purely theoretical matter then,
such discovery
should routinely be granted;
as
a practical matter,
such
discovery cannot be routinely granted consistent with the
constraints on permit appeals imposed by the legislature, the
courts,
and the operational needs of the Agency as well
as the
Board.
As aforementioned,
in proceedings before the Board discovery
is allowed
in general
to the extent that “the information sought
appears reasonably calculated
to lead to the discovery of
admissible evidence”.
Section 103.161(a).
However,
the Hearing
74-335
—3—
Officer may enter “protective order(s)
as justice requires,
denying,
limiting, conditioning or regulating discovery to
prevent unreasonable delay,
expense, harassment,
or oppression,
or
to protect materials from disclosure by the party obtaining
such materials”.
Section 103.161(b).
Discovery in a permit appeal must be viewed
in the
procedural context of such appeal.
Pursuant to Section 40(a)
of
the Act, the Board
is required to render
a final decision within
120 days of the date of filing of the appeal,
or
a permit issues
by default.
In order
to allow time for an orderly process of
decisionmaking by the Board, hearing should be held within 60
days
of filing.
This allows 15 days for the filing of the
transcript
(Section 103.221(a)),
14 days for the filing of briefs
(Section 103.223) and 30 days for Board discussion and
decision.
The close of discovery should be at least 10 days
prior
to hearing
to allow time for obtaining signatures for
depositions and the filing of any appropriate motions.
Allowing
two weeks after filing
to commence discovery allows little more
than
a month for meaningful discovery.
What is “reasonable” discovery must be determined
in the
light of these practical time constraints
as well as the
legislative 120 day constraint of Section 40(a).
Full discovery
of the sort afforded
in enforcement cases can be a year long
process.
A petitioner’s
insistence upon full discovery “rights”
of this type could effectively preclude timely action on any
appeal,
at
the expense of the rights
of the public to have the
Board determine whether issuance of
a permit
is environmentally
proper.
These competing interests must be balanced in the
interests of due process.
Further limitations on the scope of discovery flow from
Section 40(d)
of the Act which specifically provides that in
considering air permits,
the Board’s review
is limited
to the
record before the Agency.
As stated by the First District Appellate Court in IEPA v.
IPCB and Album,
Inc.,
118 Ill. App.3d 772, 455 N.E.
2d 188,
194,
(1983), when reviewing the denial of air construction and
operating permits:
“The sole question before the Board
in
a review of
the
Agency’s
denial
of
a
permit
is
whether
the
petitioner can prove that its permit application as
submitted
to
the
Agency
establishes
that
the
facility
will
not
cause
a
violation
of
the
Act...The
Board
may
not
be
persuaded
by
new
material
not
before
the
Agency
that
the
permit
should be granted.”
(Emphasis
in original, citations omitted.)
74-336
—4—
The corollary to this holding is that the Board may not be
persuaded by information not before the Agency that
a permit
denial was proper,
IEPA v. Waste Management,
Inc. PCB 84—45, 61—
68, Opinion and Order of October 1,
1984,
Supp. Opinion and Order
of November
26,
1984,
affd.
sub nom. IEPA v.
IPCB, 138 Ill.
App.
3d 550 (3rd Dist.
1985,
affd.
IEPA v. IPCB,
_____
Ill. 3d
Docket 63062
(Ill.
Sup. Ct. December 19,
1986).
While Joliet
correctly notes that
in Waste Management the Court determined
that the Board could properly determine whether the Agency
reviewed all facts “available to”
or “in possession of” the
Agency when making its permitting decision, the Board does not
construe this holding as authorizing unlimited discovery in
permit appeals.
Were
the Agency a natural person, Joliet’s discovery
requests would amount to an attempt to hold the person upside
down,
to shake that person,
and
to see what fell out of the
person’s pockets, without differentiating between lint and items
of value.
Based on the record in this case,
no showing has been
made that this type of discovery is not advisable,
balancing the
need of
the Board to make
a timely decision, the onerousness of
production given
the Agency’s resources and operational
responsibilities, and the lack of
a compelling showing by Joliet
that the information requested
is reasonably calculated to lead
to the discovery of admissible evidence.
For these reasons,
the Hearing Officer’s Order
is modified
at page
2,
numbered items
2,
3 and
4 by adding the words
“and
relied upon by Respondent
in acting upon the permit application
which
is the subject of this litigation.”
The Hearing Officer ruling concerning the Mathur deposition
question
(p.
3, par.
1)
is reversed,
on grounds other than those
urged by the Agency.
The Board finds
the question irrelevant.
The balance of
the Agency’s motion
is denied.
As
to Joliet’s motion,
the Board finds no merit in any
of
its contentions and fully affirms the challenged portions of
the
Hearing Officer’s Order.
IT IS SO ORDERED.
B. Forcade dissented.
74-337
—5—
I, Dorothy M. Gunn, Clerk of
the Illinois Pollution Control
Board, hereby certify that th
above Order was adopted on
the
____________
day of _________________________,
1986 by a vote
of
~-
/
Dorothy M.
unn, Clerk
Illinois Pollution Control Board
74-338