ILLINOIS POLLUTION CONTROL BOARD
May
9, 1986
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Complainant,
V.
)
PCB 79—145
THE CELOTEX CORPORATION
and PHILIP CAREY COMPANY,
)
Respondents.
ORDER OF THE BOARD
(by J. Anderson):
In summary,
this Order
1)
reaffirms the Board’s April
24
Order granting sanctions against the Illinois Environmental
Protection Agency
(Agency) relating
to inspection of
the Joliet
Army Arsenal groundwater
documents,
2) grants Celotex’ April
28
motion for sanctions against the Agency relating
to failure
to
produce witnesses for deposition and 3)
reserves ruling on the
nature of sanctions pending receipt of
briefs from the parties
and
a recommendation from the Hearing Officer concerning inter-
relationship
of the subject matters involved
in the areas
of
sanction and suggested appropriate sanctions.
On April
24, 1986
the Board
issued an Order granting
Celotex’ April
10 renewed motions
for sanctions.
The basis for
the motion was the failure of
the Agency to comply with
a
November
11,
1985 Hearing Officer Order providing for
inspection
by Celotex of documents relating
to groundwater facts at the
Joliet Army Arsenal;
an inspection of documents in
a ~working
file~at the Agency’s Maywood office
scheduled
for April
10 and
confirmed on April
8 was cancelled by the Agency on April
9
because the file was “incomplete~.
The Agency refused
to allow
inspection of the
incomplete”
file
in Maywood
on April
10,
although
it offered
to allow inspection of the complete, master
file
in Springfield (where
the file
is located) on one of two
suggested dates
in mid—May.
While the Board’s April 24 Order
granted sanctions,
the ruling on the nature of
the sanction was
reserved,
the parties
being directed
to submit briefs on or
before May
7 concerning the appropriateness of three Board—
suggested alternatives.
On April
28,
the Agency filed
a request for
a special Board
meeting
to reconsider
the April
24 Order,
and
a motion to stay
the Order
requiring briefs on May 7.
Celotex filed a response
in
opposition
to this motion on May
2.
Finally, each party filed
69-349
—2—
briefs on
May
7
in response
to the April
24 Order, mooting the
motion
for
stay.
The Board did not schedule
a special meeting
concerning
the
Agency’s motion,
as the motion did not set forth sufficiently
pressing reasons
to justify the
request..
Special Board meetings
among
seven Board Members are logistically difficult to arrange
and are held only
in the event of compelling necessity.
The motion
for reconsideration of the granting
of sanctions
is granted.
The Board reaffirms
its April
24 Order.
The only
new information contained
in that motion
is that the Assistant
Attorney General
appearing on behalf
of the Agency did not
discover that “important documents were not contained
in this
Maywood
file..
.
until
the morning preceding the
inspection”.
This does not explain the failure
to make
this determination at
some point between November and April—-and certainly prior
to the
April
8 confirmation of
the April
10 visit,
or the subsequent
failure
to make
a good faith partial compliance
by allowing the
Maywood inspection
to proceed.
The Board must continue
to reserve
ruling on the nature
of
the sanction for
the reasons expressed below.
Celotex again moved for sanctions on April
18 based on the
Agency’s failure
to produce Kenneth Bechely and Monte Nienkirk
for continuation of their depositions.
As
to Bechely,
Celotex
asserts
that the deposition commenced on October 12,
1984.
The
witness did not appear
at
a scheduled continuation session on
November
19,
1984;
the witness attended sessions on July 12 and
August
21, 1985;
scheduled continuation dates were cancelled
by
the Agency on October
15,
1985,
and again
on January 10, March
12
and April 16,
1986.
The Board notes
that the scheduling
of
these
1985—1986 dates was accomplished only after entry of three
Hearing Officer Orders,
and further notes that the April
16 date
was contemplated by the Hearing Officer and agreed
to by the
parties
as being
“a firm date...short
of death
or serious
illness”.
The Agency’s April
24 response
in opposition describes
Bechely
“as
a mere fact witness
for complainant”,
states that
~genera1ly.
..
if
a deposition was cancelled
this
was based on
genuine unforeseeable events”, asserts
that the Agency
has no
objection
to the taking of
the deposition,
and invites Celotex
to
tender
dates
in May or June subsequent to
inspection of the
groundwater documents which are the subject of the April
24
sanction Order.
This pattern of sluggish response
to, and/or disregard of,
Hearing Officer Orders and repeated and sometimes abrupt
cancellation
of,
or non—attendance at, deposition sessions
is
unacceptable,
and
a justification/explanation based on
a general
allegation of “unforeseeable events” will not lie.
The Board
sees
no useful purpose
in establishing yet another “firm”
date.
69-350
—3—
The motion
for sanctions
is granted,
a ruling on the
form thereof
being
reserved.
As to the continuation of the Nienkirk deposition,
Celotex
asserts
that by Order
of April
4 the Hearing Officer ordered
a
response by April
11
as
to the availability
of the witness on two
specific dates,
and also ordered that two alternative dates be
provided
in the case of unavailability.
On April
15,
in response
to an April
14 Celotex
request for
an answer,
the Agency stated
the witness was not available on the specified dates.
The Agency
response
to the April
4 Order
for alternative dates
as well
as
an
April
15 Celotex request was contained
in the Agency’s April
24
response
to this motion
for sanctions.
In explanation,
the
Agency states
that “any failure..
.
is purely inadvertent” as both
the witness and counsel “have been extremely busy handling other
Agency matters”.
This conduct must be viewed
in light of the pattern of
disregard
of deadlines set in Hearing Officer Orders and failure
to request extensions thereof
in advance
of default.
The motion
for sanctions
is granted,
a
ruling on the form of
the sanctions
being
reserved.
The April
24 groundwater documents sanctions order
sets
forth three possible sanctions options upon which
the parties
have commented.
Paragraph 23 of Celotex April
18 deposition
sanctions motion sets forth three sanctions options.
The sought—
for information involved
in both deposition and documents
sanctions would appear
to deal with some of the same issues,
and
the Board
is therefore not inclined
to impose sanctions until any
inter—relationship
is addressed.
Additionally, Celotex has
generally requested that
the complaint be stricken;
the Board
wishes
the parties
to specify which,
if
any, portions of
the
complaint might appropriately be stricken as
a sanction
in
response
to either/both sanctions order(s).
Briefs addressing
the appropriate sanctions
to be imposed by reason of the document
and discovery sanctions findings shall
be filed on or before May
20.
Given
the course and nature of
this action, the Board
believes
it appropriate
under
these circumstances
to solicit a
recommendation from the Hearing Officer
on the nature of
the
sanctions to be imposed.
The Board requests the Hearing Officer
to file this recommendation on or before May 28.
The parties may
file responses thereto on or before June
3.
IT
IS SO ORDERED.
R.
Flemal dissented.
69-351
—4—
I, Dorothy
M.
Gunn, Clerk
of the Illinois Pollution Control
Board,
hereby certify that the above Order was adopted on
the
‘7~
day of
____________________,
1986,
by
a vote
of
___________.
Dorothy
M.
G4jnn, Clerk
Illinois Pollution Control Board
69.352