ILLINOIS POLLUTION CONTPOL BOARD
June
22,
1989
CITIZENS UTILITIES COMPANY
OF ILLINOIS,
Petitioner,
v.
)
PCB 88—151
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by B. Forcade):
On May
18,
1989,
the Illinois Environmental Protection
Agency (“Agency”)
filed with
the Board
a motion
for sanctions
pursuant to 35
Ill.
Adm. Code 107.101.
In general,
the Agency’s
motion alleges Citizens TJtilities Company of Illinois
(“Citizens”) has abused the discovery process
in this proceeding
by either failing to give responses
or rendering incomplete
responses to five
of its
29 interrogatories.
On June
6,
1989,
the Agency filed
a supplement
to this motion
relating specific
alleged deficiencies involving answers
to
interrogatory 12.
On
May
23,
1989, Citizens responded
to the Agency’s motion,
claiming
that
it
inadvertently failed
to answer
one
of
the interrogatories
in question,
to which
it has since responded
(May
19,
1989)
in
writing
to the Agency.
Citizens further claims
as
to the other
four that “the
Agency
does not like Citizens’
answers to four
of
the other
interrogatories.”
On June
7,
1989, Citizens filed
a
supplement
to the objections and motion to strike.
On June
20,
1989,
the Agency
filed
a suppler~ent to motion
for sanctions and
motion
to clarify.
On June 20,
1989,
Citizens filed
a motion
for
leave to file
instanter; motion
to strike,
and alternative
reply
to IEPA’s objection
to Citizens’ application for non—disclosure
and protective order;
and supplement
to Citizens’
application for
non—disclosure
and for protective
order.
On June 21,
1989,
Citizens
filed
a motion to strike,
and alternative reply to,
IEPA’s second supplement
to motion for sanctions
and motion to
clarify.
All documents have been accepted and evaluated
by the
Board.
On May 25,
1989,
the Board noted
that
the record before
it
was insufficient
for
it to adequately determine the issues
presented
in
the motion.
Specifically,
the Board noted
that
certain supplemental
responses were apparently sent by Citizens
to the Agency,
but were not
filed with the Board.
The Board
further stated
its desire
to have additional
input from its
100—209
—2—
hearing officer.
The Board
then issued
an Order directing the
hearing officer
to review his oral and written rulings
on the
interrogatories
in question,
and advise
the Board as
to whether
a
refusal or failure
to answer interrogatories
has occurred;
and
if
so, whether such failure
or
refusal was without sufficient
justification.
The Board
further ordered Citizens
to file
its
supplemental responses with
the Board.
The hearing officer
filed
his statement on May 31,
1989.
On June
1,
1989, Citizens filed
its supplemental responses with
the Board accompanied by an
application for non—disclosure.
The Board will first address
the application for non-
disclosure.
Citizens claims that the supplemental answers
filed
June
1,
1989,
should not be disclosed
to the public because
the
answers contain
“information privileged against introduction
in
judicial proceedings”,
as provided
in Section 101.107
of the
Board’s procedural
rules.
(These answers were previously
not
subject
to disclosure by Interim Hearing Officer Order which
expired May
11,
1989.)
The court proceeding involved is Village
of Glenview
v. Northfield Woods Water
& Utility Co., Inc.,
case
No.
87
CII 02577, Circuit Court
of Cook County,
Illinois.
Citizens
states that although on April
24, 1989,
the court
granted Glenview’s motion
for summary judgment,
“Northfield Woods
purportedly has filed
a petition for rehearing
and
reconsideration which now
is
pending before the court.”
Citizens
further states:
the
attached
supplemental
responses
relate
to
subject
matter
involved
in
these
court
proceedings
and
to
the
subject
matter
oE
discovery
which
the
court
has
denied.
If
these
materials
are
not
treated
as
confidential, Citizens believes that
the court
proceedings may
be adversely affected,
and the
court’s rulings circumvented.
Citizens’
further
elaborates:
As
Citizens’
application
states,
it
seeks
protection,
from
disclosure
by
IEPA
or
from
public
disclosure,
of
confidential
materials
contained
in Citizens’
supplemental
responses
to
IEPA’s
interrogatories.
These
materials
relate
to
the
subject
matter
of
the
court
proceedings
involving
the Village
of
Glenview
and NorthNeld Woods Water
& Utility Co.
,
Inc.
(“Northfield~Woods”).
They also relate
to
the
subjec’t
matter
of
discovery
which
t~c
court:
las
~~icd
.
1
L
Lhc~e
ifla~Lu±3lS
UL~
n(L
treated
as
confidential,
Citizens
will
be
disadvantaged and
the court’s
rulings
will
be
circumvented.
For
example,
the
court
has
100-210
—3—
denied Northfield Woods’
discovery attempts
to
obtain material
of the type which Citizens has
produced
to IEPA herein.
The Agency
filed an objection
to the application for
Protective Order
on June 16, 1989.
The Agency notes
(p.
1)
that
Citizens does not indicate “the particular category into which
the material falls
in accordance with Section l0l.l07(c)(2).”
The Agency further suggests that
it
appears that the circuit
court
did not rule that any materials was privileged or
confidential
(pp.
1—2).
Finally,
the Agency suggests that the
material provided
by Citizens
is not “information privileged
against introduction
in judicial proceedings,” as asserted by
Citizens.
The Board agrees that there
is
no apparent doctor—patient,
attorney—client or
other privilege which would
relate
to the
material involved.
The Board also agrees that Citizens has not
shown any judicial ruling that certain material
is confidential
or privileged.
At most,
Citizens has asserted that discovery was
denied.
Such
a broad assertion will not support the requested
protective
order.
The Board will, however,
temporarily provide
confidential treatment
to these materials,
and will allow
Citizens until June
29,
1989 to provide the Board and Agency with
a detailed explanation
of
its
theory of non—disclosure.
The
Agency will have until
July 7,
1989,
to provide any needed
supplement
to
its present
position.
The Board will determine
the disclosure status
at
its July 13, 1989 Board meeting.
The Board will now proceed
to the merits
of the Agency’s
motion.
To do so,
it
is
important to review
the present status
of the discovery
in question.
The Agency
initially propounded
its discovery on February 23,
1989.
Eight days later,
on March
3,
Citizens filed certain objections
to the discovery request.
Fifteen days after the discovery request was filed,
on March
8,
the hearing officer held
a pre—hearing conference devoted
exclusively to rulings on discovery.
The hearing officer
stated
he would entertain a motion for a protective order
that Citizens
wanted and ordered
that discovery responses be filed
by
a date
certain
(ultimately March
29).
Thirty—four days after
the discovery request was filed,
on
March
29, Citizens
responded to certain
interrogatories,
but
refused
to answer four questions until
entry of
a protective
order,
a copy of which was enclosed.
On April 19,
the hearing
officer
entered an interim protective order and directed Citizens
to provide the remaining discovery material
“forthwith”.
On May
8,
seventy—five days after
the discovery request
and nineteen
days after
the hearing officer order
to provide discovery
“forthwith”, Citizens
filed responses
to all discovery except
question number
12.
On May 19, eighty—five days after
the
discovery request
and three days after
the motion for sanctions,
Citizens
filed
a response
to question number
12.
100—211
—4—
Upon examination of
the answers given and facts
to date,
the
hearing officer stated
that:
I
am
of
the
opinion
that providing
responses
on May 8 was not a compliance with my April
19
order directing answers to be provided
to IEPA
“forthwith.”
I
am
also
disturbed
that
Citizens withheld certain answers on the basis
that
it needed
a protective order,
but that
it
apparently
never
sought
to
make
my
interim
protective
order
permanent
and
apparently
allowed
it
to expire by
taking
no action
that
I
know
of.
I
also
believe
that Citizens has
tended
to
be
grudging
in
its
responses
to
discovery, has raised many objections,
not all
of
which
were
reasonably
taken,
and
has
attempted
to disclose
as
little information as
possible
without
positively
violating
dis-
covery procedures
and orders.
To the extent
that Citizens
asserts
that
it has no more information
to give
in response
to
certain
questions,
and
that
“IEPA”
just
“does
not
like”
certain
answers,
it
is
not
possible
to
positively
gainsay
Citizens
statement
that
it
has provided
all
the docu-
mentation
it
possesses.
I
am
left
with
a
feeling
of uncertainty on this, however,
since
a major
utility project
generally leaves
more
of
a
paper
trail
than
Citizens
has
shown
here.
No
doubt
it
is
for
this
reason
that
IEPA
asserts
that
responses
have
been
incomplete.
T~eari.ngOfficer Statement
at
3.
For the Board to evaluate whether
sanctions
are appropriate,
the position
of each party must be evaluated.
The Agency has
asserted
a primarily factual argument
as
it pertains
to each
question.
Citizens has not provided
a response
to
the motion
for
sanctions that
is referenced
to the particular
interrogatory.
Rather, Citizens asserts
that the answers
are complete,
the
Agency
failed
to pursue negotiations with Citizens on the
completion
of discovery,
and that several
legal theories do not
favor sanctions.
To the extent that Citizens raises
issues against the
discovery
request,
the
most
striking
aspect
is
that
of
timing.
C.i~:Lzus
di~~usse~
~3LScOV~iy
~5
it
t~hc
proa~s~~
COu~
yo
OH
months,
if
not
years.
That
simply
is
not
the case before
this
Board.
The Act establishes
a 120—day decision clock
for
proceedings
such
as
this.
To meet that schedule,
any discovery
100—212
—5—
and the hearing must be completed within 60—90 days.
If the
Agency
is
riot able
to force responses
to discovery within that
limited
tirreframe,
then their ability
to acquire information will
exist at the whim of those petitioners who are willing
to extend
the deadline
for decision.
We believe
the Act creates
a more
level playing
field
in that
it requires both parties
to fully and
completely respond
to discovery when ordered
to do so by the
hearing officer.
Citizens’ arguments that the Agency must now negotiate with
Citizens are misplaced.
When the tirneframes for discovery are so
short,
the Board
is unwilling
to mandate
initial negotiations
between the parties
to resolve discovery conflicts
prior
to
hearing officer orders to compel discovery being requested and
provided.
In any event,
that is not the factual scenario here.
The hearing officer had already provided a written order, on
March
8,
that Citizens provide discovery.
When that order was
not complied with,
the hearing officer provided another order, on
April
19,
that discovery
be provided “forthwith”.
The time
for
negotiations had long since passed.
The
issue now is whether
Citizens has complied with the two orders.
To the extent the
Agency has failed to demonstrate
that the answers
to
interrogatories
are incomplete,
the Agency may not prevail
on
sanctions.
That leaves the
legal
issues Citizens raises.
Citizens asserts that no discovery can be required
of
documents of public record.
Interestingly,
the very authority
Citizens cites,
27 C.I.S. Discovery,
Section 71(7), claims that
such discovery is not favored except
in special circumstances;
examples
of such special circumstances include
a public utility
involved
in contested case proceedings before
an administrative
agency.
Also,
the Agency did not request that Citizens reproduce
these documents
(with the associated reproduction costs), but
simply list them.
In these circumstances,
the Board believes
Citizens objections
are not well founded.
This Board has not adopted
the discovery
rules
that apply
to
judicial
civil litigation
in Illinois.
While many of the
principles are well
founded,
the language does not apply easily
to a system where one party “controls the clock”
(i.e.,
can
either demand
a final decision within 120 days or unilaterally
waive
the decision date
to suit its purposes).
Since
the Board
does not control the decision deadline,
the Board cannot
automatically extend
the hearing date to cure any tactical
disadvantage caused by delayed compliance with discovery.
Discovery
is
an important part
of Board proceedings and the
short timeframes
require
the Board
to be particularly sensitive
to claims
of misuse,
factors which also affect the courts:
Courts
have
an
interest
in
promoting
the
unimpeded
flow
of
litigation,
which
requires
100—213
—6—
that
careful
attention
be
paid
to
the prompt
and orderly handling
of discovery.
“Discovery
for
all
parties
will
not
be
effective unless
trial
courts
do
not
countenance
violations,
and
unhesitatingly
impose
sanctions
proportionate
to
the circumstances.”
(Buehler
v.
Whalen
(1978),
70
Ill.2d
51,
67,
15
Ill.Dec.
852,
374
N.E.2d
460.)
By
serving
notice
that
discovery
is
a
serious
phase
of
litigation
and
not
an
exercise
in
tactics,
sanctions
promote
the
flow
of
litigation
and
preserve
the
court’s
role
in
expediting
that
flow.
(See
also Savitch
v.
Allman
(1975),
25
I11.App.3d 864,
868,
323 N.E.2d
435.)
We must
emphasize
at
this
point
that
the
discovery
process
is
subject
to
the
authority
of
the
trial
court
precisely
because
it
is
such
an
integral
part
of
judicial
proceedings.
(See
generally Payne
v. Coates—Miller,
Inc.
(1979),
68
tll.App.3d
601,
606,
25
Ill.Dec.
127,
386
N.E.2d
398.)
For
this reason,
any attempt
by
counsel
to
use
discovery
for
strategic
delay
or
calculated
misinformation
corrupts
the
truth—seeking
process
and
must
be
sternly
rebuked.
pine Arts Distributors
v.
Hilton Hotel Cor~p~,
45
‘tll.Dec.
257,
89 Ill.App.3d 881,
412 N.E.2d
608,
at 611
(1980).
With
those principles
in mind,
the Board must now evaluate the
particular interrogator ies.
~r~~yNo.
1
Interrogatory
No.
I
requested
information
on
any emergency
interconnection between Citizens and Glenview:
INTERROGATORY
NO.
1:
“State
whether
any
emergency
interconnection
between
Citizens
Utility
Company
of
Illinois
and
Glenview
was
made
pursuant
to
Construction
Permit
dated
April
23,
1984
attached
as
Exhibit
A
hereto.
State
whether
any
other
interconnection
between
your
supply
and
Glenview
was
made
within
the
past
ten
years.
State
the
date
on
which
each,
interconnection
was
made,
the
diameter
of
the
water
mains
which
are
con—
ecLc~
,
id~nL
~
all
uoc:ui~nLs
relaLi.ng
to
such
interconnection
and
identify
all
persons
with
knowledge
of
said
interconnection.
For
purposes
of
this interrogatory interconnection
100—214
—7—
is
defined
as
construction
of
any
water
main
and/or meter vault
and for any other equipment
or
appurtenances
which
would
join
any
water
main
of Glenview, Illinois with
any water main
of Citizens Utilities.”
RESPONSE:
The
June
1,
1989
response
to
Interrogatory
No.
1
has
been
found
TEMPORARILY
NOT SUBJECT
TO DISCLOSURE.
In its motion for sanctions,
the Agency argues
the response
is
deficient:
In
Interrogatory No.
1,
Petitioner
refused
to
identify
persons
having
knowledge
of
the
interconnection,
stating
that
these
are
“too
numerous to mention.”
Also,
Respondent
requested
all
documents
related
to
the
Glenview
emergency
inter-
connection.
it
is inconceivable that the only
documents
which
CUCI
possesses
are
permit
applications
and
the
drawings
and
specifi-
cations
submitted
to
the
Agency
with
the
permits.
There
are
no
letters
to
or
from
Glenview?
There are
no
studies,
no memos,
no
anything
other
than
permits?
What
about
vouchers
or
communications
with
the
con-
struction
company?
CUCI
has not been
candid
here.
After reviewing the non—disclosable response, the Board must
agree with the Agency that it
is difficult
to believe that
Citizens would have no more paper documentation.
However,
the
Agency has not demonstrated that more paper
does
exist.
Therefore,
the Agency request
for sanctions
regarding the
documents must
be denied.
If the Agency subsequently discovers
documents which have been withheld,
they are free
to renew the
motion
for sanctions on this point.
Regarding the identity of persons having knowledge,
the
issue is more clouded.
Citizens’
response
is not
in fact an
answer, but more of an objection.
Yet, Citizens did not mention
that the answer would be
too numerous to enumerate
in its March
3, 1989 Objection
to Interrogatory No.
1.
The Board will
reluctantly accept Citizens late filed objection and order
Citizens to provide
a list,
not
to exceed
10 names,
of
individuals
in Citizens’ employ or representatives of Glenview,
100—215
—8—
who Citizens believes would
be most knowledgeable of
the specific
events.
That list must be
filed by June 29,
1989.
Interrogatory No.
2
Interrogatory No.
2 requested information regarding
interconnections with Mt.
Prospect:
“State
whether
any
emergency
inter-
connection between Citizens Utility Company of
Illinois and Mt. Prospect was made pursuant
to
the
Construction
permit
dated
September
10,
1980.
State
whether
any
emergency
or
other
interconnection
between
your
supply
and
Mt.
Prospect was made within
the past
ten years.
State
the date
on which
each
interconnection
was made,
and
the diameter
of the water mains
which
are
connected.
Identify
all
documents
relating
to
such
interconnection and identify
all
persons
with
knowledge
of
said
intercon-
nection.
For purposes
of
this
interrogatory,
interconnection
is
defined
as
construction
of
any water main,
meter,
meter
pit,
meter vault
which
would
join
any
water
main
of
Mt.
Prospect,
Illinois
with
any
water
main
of
Citizens Utilities.”
Response
No
emergency
interconnection
was
made
pursuant
to the IEPA construction permit dated
September
10,
1980.
Mt.
Prospect
refused
to
give
approval
for
its
construction.
An
emergency
connection
agreement
with
Mt.
Prospect
was
never made.
However,
an
interconnection
with
the
Mt.
Prospect
system
presently
exists
at
the
Maplecrest
Concominium
(sic)
Complex,
at
the
intersection
of
Highland
Avenue
and
Maple
Avenue.
Prior
to year
1981,
this condominium
complex was not connected
to Citizens’
Chicago
Suburban
system,
being
located
in
excess
of
500
feet
from
the
nearest
main
of
that
system.
Citizens
purchased
water
from
Mt.
Prospect for resale
to the condominium complex
via
a
connection
to
Mt.
Prospect’s water main
iocated
adjacent
to
the
condominium
complex.
‘~n
00011
C~iOfl
roi-
ConStrucLiori
PCiJLII.L,
tHLC~l
November
3,
1980,
was
filed
with
IEP~
to
install
approximately
525
feet
of
6—inch
diameter
main
to
connect
the
condominium
100—216
—9—
complex
to
Citizens’
main
distribution
system.
Construction
Permit
No.
0534—FYl98l
was
issued
by
IEPA
on
December
3,
1980.
Construction
was
completed
on
April
9,
1981,
and
Operating
Permit
No.
0534—FYl98l/82
was
issued by IEPA on July 7,
1981.
In
its motion for sanctions,
the Agency asserts:
Again
in
Interrogatory
2,
Petitioner
refused
to identify persons with
knowledge.
However,
this time no reason was given.
Again
we
also
find
no
documents
whatsoever
other
than
permit
applications
possessed
by
the Agency with respect
to the interconnection
between Mt. Prospect and CUCI.
As with Interrogatory
No.
1,
the Board finds
it unusual that the
only documents would be permit related, but the Agency has failed
to show non—compliance with the document request.
The Agency
is
free
to reassert its claim
if
it discovers documents which should
have been listed.
Regarding
the request
to
identify persons with knowledge,
Citizens has failed
to respond
at
all,
failed
to object,
and
failed
to explain why.
In its March
3,
1989 objection
to this
interrogatory, Citizens raised no issue relating to the
identification of persons.
Therefore, Citizens has failed
to
answer without sufficient justification and sanctions
are
appropriate.
The Board discusses the appropriate sanction under
Interrogatory
19.
Interrogatory No.
12
Regarding Agency Interrogatory No.
12, the Agency requested
information relating to costs of design for new facilities
for
Glenview and for Citizens Utilities.
Specifically, the Agency
proposed three separate component questions as
follows:
Interrogatory No.
12
“State
specifically
all
costs
related
to
the design
of
the required
new facilities
for
Glenview and for Citizens Utilities.
Identify
separately
all
engineering
costs
and
other
costs
related
to
the
design.
Identify
all
documents
relating
to
the
estimated
costs
of
design.”
Alleging the need for protection, Citizens
responded on
March
29
as follows:
100—217
—10—
Response
Citizens
will
respond
to
Interrogatory
No.
12
upon
the
entry
by
the Hearing
Officer
of an appropriate Protective Order.
As noted previously, the hearing
officer issued his order
of
March
8,
1989
and
an Interim
Protective Order
on April
19,
1989,
expiring May 11,
1989.
When Citizens filed
its supplemental
responses on May 8,
1989,
such responses omitted any response
to
Interrogatory No.
12.
In
its May 23,
1989 response
to the
Agency’s motion
for sanctions,
Citizens states
that
it
inadvertently failed
to answer this interrogatory,
but that
it
had since
responded
(on May 19, 1989).
That response consisted
solely
of the following:
Response
to IEPA Interrogatory No.
12
The
June
1,
1989,
response
to
Interrogatory
No.
12 has
been
found TEMPORARILY
NOT SUBJECT
TO DISCLOSURE.)
On June
1,
1989, Citizens filed
its application
for non-
disclosure
and for protective order,
including
as attachments
Citizens’
supplemental
responses of
:4ay
B and
19,
1989.
The
latter concerns Agency Interrogatory No.
12.
On June
6,
1989,
the Agency filed
a Supplement
to Motion
for Sanctions
in which
counsel
for
the Agency acknowledged receipt
of the response to
Interrogatory No.
12
on ~4ay22,
1989,
but suggested
that
the
response “may not have
been
a
full
and
complete
response.”
Specifically,
the
Agency
identified
two
documents
(Ex.
3
&
K)
previously
filed
by
Citizens
with
the
Illinois
Commerce
Commission
in
connection
with
that
agency’s
Dockat
No.
87—0158,
the
rate
case
which
deals
with
the
planned
Glenview—Citizens
interconnection
which
is
the
subject
of
Interrogatory
No.
12.
The
Agency
also
suggested
that
a
reference
in
Citizens’
Annual
Report
for
1986
to
“Study
Lake
Water
to Glenview” may refer
to
costs
related
to
engineering
as requested
in the Agency’s
Interrogatory
No.
12.
The
Agency
also
notes
that
portions
of
the
stenographic
transcript
of
the
Illinois
Commerce
Commission’s
hearing
of
June
4,
1987
appear
germane
to
its
request.
On
June
7,
1989,
Citizens
filed
a
Supplement
to
Citizens’
Objections
to,
and
Motion
to Strike,
IEPA’s Motion
for
Sanctions.
With
req’ard
to
Interrogatory
No.
12,
Citizens
asserts
ttsi~
(1
)
~o
discove’:v
can h~regu~r~dof don
onnt:s
o~
n~ì~
1
record
and
(2)
discovery
cannot
be
ruqui red
where
Llic
iti~u~oat
ion
sought
is
already
known
or
the
requesting
party
has
in
its
possession
or
control
the
means
of
acquiring
the
information.
As
100-2 18
—11—
noted above,
the Board cannot accept Citizens’
reasoning
in this
regard.
The Board notes
in passing
that Citizens provides no
factual support
for its conjecture,
in paragraph
14,
to the
effect that “IEPA may already have had these materials when
it
served its interrogatories”
(p.
4).
Such conjecture does not
excuse Citizens of
its obligations
under
the Hearing Officer’s
Orders
of March
8 and April
19,
1989,
to adequately respond
to
Interrogatory No. 12.
The Board has reviewed the tardy
(and non—disclosable)
response
to Interrogatory No. 12.
We are compelled
to conclude
that the response
is,
in
fact,
patently unresponsive, consisting
solely of
a table
of figures devoid of reference either
to the
three distinct components of
Interrogatory No.
12 or
to the
sources
and justification of the data provided.
Devoid
of
context and support, Citizens’
response
is manifestly
inadequate.
Further,
the Agency has provided documents that
Citizens should have listed.
We also cannot accept Citizens’
argument that Supreme Court
Rule 201(k) essentially stands
for
the proposition that this
inadequate response can serve
as the basis
for sanctions only
after
the Agency has demonstrably attempted and failed
to achieve
a satisfactory response.
The time for negotiating and honing
discovery requests has passed with
the issuance of the Hearing
Officer’s Orders of March
8 and April
19,
1999.
The obligation
thereafter
is upon the parties
to conform
to the requirements
of
that Order; Citizens’
attempt
to shift
the burden
for
its non-
compliance
to the Agency must therefore fail.
See also Hawkins
v. Wiggins,
92 Ill.App.3d
273, 415 N.E.2d
1179
(1980).
As
to the appropriate form of sanction,
the Board
is
persuaded that the record of
this proceeding does not support
either
the imposition of
no
sanction or
the imposition
of the
extreme sanction of dismissal with prejudice.
However,
given
the
protracted pattern of less—than—adequate responses
to informal
discovery requests
as well
as the formal orders of
the hearing
officer,
the appropriate sanction
is clearly closer
to the latter
than the former.
In this case, Citizens at first failed
to
respond
to
Question No.
12
as directed
by the hearing officer, then filed
a
tardy response which utterly failed
to satisfactorily address
the
questions propounded by the Agency.
Even now, Citizens declines
to provide
a forthright response, choosing
instead
to argue
whether the Agency has properly timed
and presented
its reaction
to the deficiencies
of the tardy submittal.
The Board
believes
that an appropriate sanction
in this case should be limited
to
the general
subject matter
of Interrogatory No.
12,
namely,
the
costs related
to the design of the required new facilities
for
Glenview
and
for Citizens Utilities,
including engineering costs,
and such documents related thereto.
As such matters have
100—219
—13—
cost—effective.”
(See
letter
from
David
E.
Chardavoyne
P.E.
to
Terrance
L.
Burghard,
Village Manager.)
It
is
inconceivable
that
no
other
documents
relating
to
lack
of
cost—effectiveness
exist.
Are there
no cost estimates,
no memos,
no
studies,
no
documents
stating
what addit-
ions
would
be
required?
And,
where
are
the
documents
supporting CUCI’s
statement
in
its
response that the Mt. Prospect system does
not
have
adequate pressure
to
supply
the
Chicago
Suburban system?
Again,
the Agency has failed
to demonstrate that more
documents
exist.
Sanctions
are denied with leave
to ref ile
should such documents
be discovered.
Interrogatory No.
19
Interrogatory No.
19 requested information on expert
testimony:
“Identity
all
expert
witnesses
you
intend
to
introduce
at
trial
and
state
the
opinions
which
each
will
present
at
hearing
in
the
matter.”
Response
William
P.
Brink.
All
aspects
of
the
variance petition.
In
its motion for
sanction,
the Agency asserts:
Response
to
Interrogatory
No.
19
is
deficient.
Respondent
is
entitled
under
Rule
21
of
the
Rules
of
Civil
Procedure
to
full
response
with
regard
to
the
opinions
which
will
be
expressed
by
any
named
expert
witnesses.
The Board
finds
that Citizens did not object
to that portion
of
the question which requested
the opinions of the witness, did
not respond
to that portion
of the question,
and did not explain
why.
Citizens’
failure
to respond
is without sufficient
justification.
Therefore, sanctions
are warranted.
In determining
what sanction
is appropriate,
with respect
to
Interrogatories
Nos.
2 and
19,
for withholding
information on
the eve
of hearing,
the Board finds support
in the philosophy
expressed
in Bailey
v.
Twin City Barge
& Towing Co.,
70
Ill.App.3d
763,
388 N.E.2d 789,
at 791—792
(1979):
100—221
—15—
interrogatory number
2,
and the opinions of Mr. Brink required by
interrogatory number
19.
If Citizens does not fully and
completely comply within
7 days,
by serving
a response on the
Agency,
the hearing officer
and the Board not later than 5:00
p.m., June
29,
1989,
this proceeding will
be dismissed
with
prejudice.
Nothing
in this Order
shall prohibit the Agency from
objecting to the introduction
of information at hearing due
to
surprise
or inability to prepare because of Citizens late filed
discovery.
IT
IS SO ORDERED
I,
Dorothy M.
Gunn, Clerk
of the Illinois Pollution Control
Board, hereby certify
t
the above Order was adopted
on
the~,o~2’~1
day of _______________________,
1989,
by
a vote
of
~7-~)
.
/7(~/
~
/1
L
Illinois
LtiOn
Control Board
100—223
