ILLINOIS POLLUTION CONTROL BOARD

November

8,

1984

ILLINOIS

ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

)

)

PCB 79—145

CELOTEX CORPORATION

and

)

PHILIP

CAREY

COMPANY,

)

Respondents.

ORDER OF THE

BOARD

(by B.

Forcade):

On October

25,

1984,

respondents, The Celotex Corporation

and

Philip

Carey

Company,

(~Celotexu)filed an application for

nondisclosure in

an envelope stamped

‘SNot Subject to Disclosure.”

According to 35

Ill,

Adm,

Code lOl.l07(c)(3), material marked

~not subject

to disclosure” is automatically afforded confidential

treatment until

a ruling

by the Board.

On November 1,

1984, the

Illinois Environmental

Protection

Agency

(“Agency”) filed a

response to

Celotex’s application.

This matter arose when the Agency,

in discovery,

requested

production of the Analyses of Wastes which was done in the spring

of

1976

by Erickson Chemical Company on samples of materials

disposed of at

the landfill at issue,

In a September

25, 1984

response, Celotex objected claiming a protection against dis-

closure from

discovery based on attorney-client privilege and

attorney work product

privilege.

In an October

2,

1984 reply the

Agency objected to

the privilege and requested in

camera inspec-

tion

by

the

Board.

By Orders of October

5 and 15,

1984, the

Hearing Officer

provided for submission to the Board

of the

material

in

question and memoranda.

Ce1otex~s

attorney states by affidavit that the material in

question is the result of

services performed by Erickson for that

attorney in

contemplation of litigation and is thus not subject

to

disclosure,

The Agency argues that Supreme Court Rule 201(b)

requires disclosure

of objective and material information such as

this and

that

the material

is discoverable.

Thus, the Board must

address

two questions, whether the material

is subject to discovery

and whether

the

material may be disclosed to the public under

section

7

of the Illinois Environmental Protection Act (“Act”)

and

35 Ill,

61-03

---

2

The

Board

finds

the

material

in

question

is

subject

to

discovery

.

In

Consolidation

Coal

Co.

v.

rus—Erie

Co, 432

~

2d

250,

89

111,

App.

2d 103

(1983),

the Illinois Supreme

Court evaluated the

Attorney—Client

and

work

product privilege

as

it applies to technical

reports,

When

dismissing

the

privilege

as

it pertained

to

a metallurgical report the Court stated:

The

report

is

actually a notebook that

contains objective and material infor-

mation consisting of mathematical com-

putations,

formulae,

tables, drawings,

photographs, industry specification

data,

and handwritten notes,

It does

not

reflect

or disclose

the theories,

mental

impressions or litigation plans

of B_Evs attorneys.

Nor is it the pro-

duct of the attorney~smental processes

(Supra, at 254).

Here, the material in question is objective and material information

that does not reflect or disclose the theories, mental

impressions

or litigation plans of Celotexes attorney,

nor is

it

the

product

of his mental process.

Neither was the material prepared by

Celotex and communicated to the attorney in confidence,

Thus,

the material in question here is subject to discovery.

Additionally, the material

in question is subject to disclosure,

Section 7(d)

of the Act provides that material describing “the

quantity and identity of substances” placed in landfills “may

under no circumstances be kept confidential.”

The material in

question here describes the identity and quantity of such sub-

stances and may not be kept as confidential.

Celotex is directed to provide the

subject

material

to

the

Agency under discovery within seven

(7) days of the date of this

Orders

The Clerk of the Board is directed to release the material

to the Board~s

public

files,

after

35

days.

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

~

1984 by a vote of

Dorothy M.~Gunn,Clerk

Illinois Pollution Control Board

61-04