ILLINOIS POLLUTION CONTROL BOARD

July 11, 1986

IN THE MATTER OF:

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VOLATILE ORGANIC MATERIAL

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R82-14

EMISSIONS FROM STATIONARY

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SOURCES: RACT III

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ORDER OF THE BOARD (by B. Forcade):

This matter comes before the Board on a series of motions

and discovery requests filed June 18, 1986, by the Illinois

Environmental Protection Agency (“Agency”). The Agency filed two

motions to the hearing officer “to allow the filing” of

interrogatories and requests for production of documents and to

direct answers to the discovery requests. One motion relates to

the site-specific regulatory proposal by Minnesota Mining &

Manufacturing (“3M”) and the other motion relates to the Allied

Tube & Conduit (“ATC”) site-specific proposal. Each motion is

accompanied by a set of interrogatories and a request for

production of documents. Both site-specific proposals are being

considered within the context of this general rulemaking

proceeding. The Agency also requests an extension of the

schedule established in the Board’s May 22, 1986, Order for pre-

submission of testimony for the August hearings in order to have

adequate time to formulate a position regarding the two site-

specifics after submission of the requested discovery. The Board

construes that this motion is directed to the Board rather than

the hearing officer as it involves the modification of a Board

established schedule. On July 1 and 2, 1986, ATC and 3M,

respectively, responded to the Agency’s motions. The Agency

filed a supplemental Motion in Support of the Discovery

Documents. On July 8, 1986, 3M filed a letter in response to the

Agency’s motions which addressed technical aspects, rather than

legal issues. The hearing officer, pursuant to Section

102.160(g) of the procedural rules, referred the motions relating

to discovery to the Board for an initial determination.

The Agency argues in its motions regarding interrogatories

and production of documents that it has unsuccessfully attempted,

by letters and requests at hearing, to obtain information related

to 3M’s and ATC’s operation in order to make a determination of

equivalency between the proposed site-specifics and the proposed

solids-based rule. The Agency believes that the information

requested is necessary for Board and Agency review of the

proposed language. The Agency also argues that the hearing

officer has authority to order the filing of answers to

interrogatories and production of documents relating to those

answers. In its supplemental motion, the Agency argues that the

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Board has the authority to require answers and the authority to

enforce any order requiring answers with civil penalties. The

Agency reiterates the necessity of the information for the

Agency’s as well as the Board’s evaluation and the need to have

the information prior to hearing.

3M and ATC respond that the hearing officer has no authority

to grant the Agency’s request and that the Agency’s discovery

requests and motions are procedurally unauthorized as 35 Ill.

Adm. Code 102.140 specifically limits the right of discovery in

non-adjudicatory proceedings to the issuance of subpoenas for

attendance of a witness or production of documents really

necessary to resolve the matter. 3M and ATC also generally

allege that they would be unduly burdened if they were required

to respond to the “overly broad and excessive in number”

interrogatories. 3M additionally argues that it has provided

extensive information to the Agency, the Agency has examined 3M

at hearing on the information requested and that the information

is unnecessary in light of the relief requested by 3M. 3M

believes that since its proposal would result in less actual

emissions than the Agency’s solids based proposal that extensive

economic and cost data are not necessary.

The Environmental Protection Act (“Act”) and the Board’s

procedural rules provide various mechanisms for gathering

information in regulatory proceedings. Section 28 of the Act

requires that the Board conduct public hearings and that its

decisions be made on the record. Section 5(e) provides for

subpoena power for both adjudicatory and regulatory

proceedings. 35 Ill. Adm. Code 102.140 and 102.160 authorize the

issuance of subpoenas, commands to produce documents and the

issuance of interrogatories. Notably, these subpoenas, commands

to produce and interrogatories are to be made in the name of the

Board either through the hearing officer or the Board itself.

These mechanisms, among others, are available to the Board in

order to develop a complete record for decision. Other

information gathering mechanisms include questions at hearing,

pre-submission of testimony, written inquiries by the Board or

hearing officer, public comments and briefs.

There is a significant distinction between mechanisms for

gathering information in a quasi-legislative regulatory

proceeding and discovery in a quasi-adjudicatory adversarial

proceeding. In a regulatory proceeding, the purpose of discovery

is to develpp a complete record for the Board, while in a

contested case proceeding, discovery is between the parties and

can be related to other purposes. The standard and focus of

discovery in a regulatory proceeding should be general relevancy

to “technical feasibility and economic reasonableness.” In a

contested case, relevancy or the likelihood that the requested

information will lead to relevant information is the standard.

Information obtained through discovery in a contested case is not

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evidence unless otherwise admissible and actually admitted.

Failure to comply with discovery requests in a contested case can

lead to sanctions, while in a regulatory context lack of

supporting information can result in dismissal or denial for

inadequacy. In the contested case context, the forum “referees”

the discovery process that is ongoing between the parties, while

in a Board regulatory proceeding, the Board itself must ensure a

complete record by requesting information.

The Board clearly has the authority to issue interrogatories

in a regulatory context, and has used this mechanism in the past

(R8l-19, Citizens Utilities Site-Specific, Board Order of April

10, 1986; R82-25 Dean Foods Site-Specific, Board Order of July

11, 1985, Hearing Officer Order of September 16, 1985; R82-14

RACT III

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Heatset Web Offset Printing, Board Opinion and Order

of May 30, 1985, Hearing Officer Order of September 10, 1985).

Interrogatories are just one tool the Board may use to gather

information. Perhaps the term “interrogatory” is an unfortunate

word choice in that it can connote an adversarial process. While

Board rulemakings are formal proceedings (hearings are

transcribed, cross-examination occurs, decisions are made on the

record and comment periods are allowed), it is not appropriate to

allow matters to become too procedurally adversarial.

In the instant proceeding, the Board is reluctant to begin

full adversarial discovery. The Board has established an

extensive hearing schedule which provides for at least two full

weeks of hearing with the possibility of a third week if it is

necessary. The Board has chosen this method of developing a

complete record as the best approach given the practical

deadlines imposed by the Clean Air Act (“CAA”). The Board will

allow the “filing” of the Agency’s interrogatories and document

requests as a pleading in this proceeding. The information

requests are consequently “on record.” The Board will not, at

this time, issue the interrogatories in the Board’s name as the

Agency has requested. By these actions, the Board does not

comment on the appropriateness or reasonableness of the

information requests made by the Agency. It is anticipated that

3M and ATC will submit additional information at the scheduled

hearings that will provide a sufficient record for Board

decisionmaking. The Board believes that the scheduled hearings

are the best mechanism for completing the record in this

proceeding. If, after the August hearings, it is apparent to the

Board that necessary information for decision has not been

submitted into the record, the Board may request additional

information. The Agency may also renew and refine their

information requests after the August hearings, if it so

desires. However, at this stage, the Board will proceed with the

schedule outlined in the May 22, 1986, Order.

The Board will deny the Agency’s request to extend the time

period to submit pre-prepared testimony. The Board has scheduled

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two weeks of hearings that are staggered in time in order to

allow development of response and rebuttal testimony. The Board

is unwilling to deviate from the schedule established in the May

22, 1986, Order as it could result in claims of prejudice. By so

doing, the Board does not believe that it is unfairly treating

the Agency or any other participant. The Board has provided an

extensive number of hearing days which are spaced to allow

adequate time to prepare responsive testimony.

In a separate filing, unrelated to the foregoing motions

relating to discovery, Duo Fast filed proposed amendments to 35

Ill. Adm. Code 215: Subpart F and a Motion for Extension of Time

to File Testimony. The Duo Fast motion, filed July 1, 1986,

incorrectly describes the May 22, 1986, Board Order as a hearing

officer order. As previously noted, only the Board can modify

the May 22, 1986, schedule.

Duo Fast requests an extension until August 29, 1986, to

file any pre-prepared testimony regarding its proposed site-

specific regulatory language. Duo Fast cites various scheduling

conflicts during July and August, due to travel and vacation

plans, involving a potential witness and one of Duo Fast’s

attorneys. The motion is denied. Duo Fast’s request would

provide one working day before the second scheduled week of

hearings to review the prepared testimony. This is clearly

inadequate in light of the complexity of the issues involved.

Duo Fast has failed to provide a compelling reason why its

testimony cannot be provided in a timely fashion. Additionally,

Duo Fast apparently wishes to present its testimony at the

September hearings which is reserved for rebuttal testimony and

cross-examination. The Board’s intent in this matter is to

provide an orderly two-stage process that will allow all

participants an equal opportunity to present regulatory proposals

and testimony and then respond or rebut at later hearings.

This

schedule is necessary in light of the complexity of the subject

matter and CAA deadline for attainment of the National Ambient

Air Quality Standard for ozone.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certif that the above Order was adopted on

the ~~day

of

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1986, by a vote of

___________

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i7j.

Dorothy M.

Gur?1, Clerk

Illinois Pollt~ition Control Board