ILLINOIS POLLUTION CONTROL BOARD
August 4, 1988
AMEROCK CORPORATION,
Petitioner,
V.
)
PCB 87—131
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD (by J. Marlin):
This matter comes before the Board on an appeal of a Hearing
Officer’s ruling concerning discovery matters filed by Amerock
Corporation (Amerock) on July 14, 1988. The Agency filed a
Response on July 21, 1988.
At issue is ruling of the Hearing Officer which was filed
with the Board on July 1, 1988. The ruling was made pursuant to
the Board’s Order of May 19, 1988. That Order directed the
parties to file briefs concerning whether Amerock should respond
to Agency interogatories and a request for documents that dealt
with the financial status of Amerock and which had been filed on
March 2, 1988. After considering the briefs, the Hearing Officer
was to rule on the outstanding discovery controversy.
Essentially, the Hearing Officer’s Order states that Amerock
need not submit the economic information requested by the Agency
if Amerock files by July 1, 1988:
An Affidavit, signed by Amerock’s Chief
Executive Officer, acknowledging that
tAmerock
understands that Amerock’s
refusal to submit any financial data
concerning its income and earnings precludes
Amerock from any contention now or at a
later date that Amerock
may suffer
arbitrary and unreasonable or economic
hardship in meeting the cost of whatever
compliance plan may be approved and required
to be implemented by the Board to reduce or
eliminate Amerock’s discharges into Kent
Creek.
In the alternative, the Hearing Officer allowed Amerock to
submit economic information pursuant to any agreement Amerock
makes with the Agency. On material for which no agreement is
reached, the Hearing Officer would rule on the contested aspects
after further briefing.
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2
Finally, the Hearing Officer extended the time for the
filing of the Agency’s post hearing Response brief.
In its brief on this issue to the Hearing Officer and in
this instant appeal, Amerock takes the position that the Agency’s
discovery request is irrelevant since Amerock is not utilizing
“economic hardship” as a basis for variance relief. (June 6th
Amerock Brief, p. 4; Amerock Appeal, p. 3). In addition, Amerock
states that it would cost $100,000 to generate the requested
information. (Id., p. 6).
Amerock claims that it can “afford” the implementation of
its chosen compliance plan. (June 6th Amerock Brief, p. 4;
Amerock Appeal, p. 5). Amerock claims that the affidavit
requirement as worded in the Hearing Officer’s Order, is
inappropriate and would require Amerock to withdraw its petition.
The Agency responds by stating that its interrogatories and
request for documents “may be viewed as reasonably calculated to
lead to the discovery of relevant evidence even if Petitioner
Amerock were to state unequivocally that it would suffer no
economic hardship if required to comply with regulations at
issue.” (Agency Response, p. 2). However, the Agency does not
take the position that the Hearing Officer’s ruling should be
overruled to require Amerock to respond to the Agency’s discovery
request. Instead, in its Response, the Agency states that its
“concern here is primarily to ensure the record as it now stands,
whether or not further evidence is ever introduced is not
distorted.” (Agency Response, p. 2).
At hearing, the Agency substantially explained its position
with regard to why it believed the information it has requested
is necessary.
I would note to the Board that there is a
particular issue in this variance proceeding,
that of hardship...We would summarily state
that the Agency does not feel there’s been
sufficient information put into the record,
either in the regulatory proceeding or thus
far in the variance proceeding as to the
financial status or condition of the company.
This, we believe, is necessary so that the
Board can determine whether or not there is,
in the context of the variance case, an
unreasonable or arbitrary hardship and as
well in the context of the site specific
case, whether or not the implementation of
the controls would be economically
unreasonable. So, while the issues are
similar as the Board is well aware, they are
different in nature. That is, we believe
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3
that it is encumbent upon Petitioner to show
hardship in this case and they simply
haven’t.
Now that leads me to the next point that we
need to cover and that is the pending matter
of the Agency’s request for production of
documents and first set of interrogatories,
which was filed on March 2, 1988. A response
has been made by nature of objections and
requests for protective order from
Petitioner, that response having been dated,
or at least filed before the Board, on the
24th of March. Here again, I would simply
and briefly state that what the Agency was
attempting to do was essentially force the
company to provide this economic information
because we feel it is necessary.
(R. 8—10)
Aside from these statements at hearing, the Agency has not
made any other assertions as to the need for the requested
material. Specifically, the Agency has not stated how the
discovery request could lead to the discovery of admissible
evidence. Apparently, the Agency believes that the requested
material is directly relevant to the case.
It is clear from Amerock’s filings that it is not taking the
position that it will suffer “economic hardship” if denied a
variance. In its June 6, 1988 brief to the Hearing Officer,
Amerock explains its position.
In its variance petition, Amerock contends
that denial of variance would impose an
arbitrary or unreasonable hardship.
In
support of its position, Amerock has provided
considerable data demonstrating that the
environmental impact of its stormwater
discharges on North Kent Creek is minimal.
As respects the hardship issue, Amerock is
not contending that denial of variance will
impose an economic hardship.
Instead,
Amerock is contending that the denial of
variance would impose an arbitrary or
unreasonable hardship because the cost of
immediate
compliance
is
wholly
disproportional to the environmental impact
of Amerock’s activities such that the
variance relief should be granted.
(June 6th Arnerock Brief, p. 2—3)
Section 103.161 of the Board’s procedural rules addresses
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4
discovery. Section 103.161(a) states:
Regarding any matter not privileged, the
Hearing Officer shall order discovery upon
the written request of any party when parties
cannot agree on the legitimate scope of
discovery. It is not a ground for objection
that the testimony will be inadmissible at
hearing if the information sought appears
reasonably calculated to lead to the
discovery of admissible evidence or is
relevant to the subject matter involved in
the pending action.
Subsection (b) also states that:
The Hearing Officer may at any time on his
own initiative or on motion of any party or
witness make a protective order 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 consistent
with the provisions of Sections 7 and 7.1 of
the Act.
Because Amerock is not alleging economic hardship as part of
the arbitrary or unreasonable hardship that it would allegedly
suffer if denied a variance, the information requested by the
Agency which seeks to determine the financial integrity of
Amerock is simply not relevant to this proceeding. Also, the
Agency has not adequately shown how this information could lead
to relevant evidence. Consequently, the Hearing Officer was
correct in not requiring Amerock to provide the Agency with the
requested information.
Although the Hearing Officer required that Amerock’s Chief
Executive Officer file an affidavit stating that Amerock waives
claim of economic hardship, the Board views statement of counsel
to be sufficient in binding Amerock to its position that
“economic hardship” is not an issue in this matter.
Consequently, the Board will not require an affidavit as
described in the Hearing Officer’s Order.
In summary, the Board finds that pursuant to Amerock’s
representations, “economic hardship” is not an issue in this
proceeding as Amerock seeks to prove that it would suffer an
arbitrary or unreasonable hardship on other grounds. While cost
for compliance still is relevant, the ability of Amerock to
afford compliance is settled. Amerock has never asserted that it
lacks the economic capability to immediately comply with Board
regulations. The Board notes that a variance petitioner may
select any compliance alternative as it wishes, provided that the
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alternative does in fact achieve compliance.
On another matter, Section 35 of the Illinois Environmental
Protection Act (Act), is the controlling statutory authority for
the Board’s variance determination. Section 35(a) of the Act
provides that the Board may grant variances “upon presentation of
adequate proof, that compliance with any rule or regulation,
requirement or order of the Board would impose an arbitrary or
unreasonable hardship.” Section 33(c) applies to enforcement
actions. While factors such as those found in 33(c) may
sometimes aid the Board in a variance determination, the Board is
not required by law to consider such factors as it makes its
“arbitrary or unreasonable hardship” finding.
Because of the time elapsed for the disposition of this
appeal, the Board must set new dates for the post—hearing
briefing schedule. The Agency’s Response Brief shall be
submitted to the Board and Amerock no later than August 25,
1988. Amerock’s Reply Brief shall be submitted to the Board and
the Agency no later than September 8, 1988.
For simplicity in directing the parties, the Board’s Order
today supersedes the Hearing Officer’s July 1, 1988 ruling.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Order was adopted on
the
~
day of
—
~
,
1988, by a vote
of
/7 _),
Dorothy M.Cunn, Clerk
Illinois ~llution Control Board
91—8 1