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
    118—13
    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.
    118—14
    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

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