ILLINOIS POLLIJTION CONTROL BOARD

May 5, 1983

UNITY VENTURES,               

)

Petitioner,

v.

)

PCB 80—175

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent.

ORDER OF THE BOARD (by J. Anderson):

On April 12, 1983 the Agency moved the Board to set a

hearing date in this matter, as a hearing scheduled for April 13,

1983 was generally continued by the hearing officer on the basis

of Unity’s representation that it intended to seek either Board

reconsideration or Board certification for interlocutory appelia~e

review of the Board’s March 24, 1983 Order. That Order held that

the sanction imposed on Unity December 2, 1982 for failure to

respond to discovery, could not be evaded by the filing of an

amended petition (merely changing the prayer for relief). The

Attorney General argued on the Agency’s behalf that Unity’s moticn

for continuance in which to pursue Board or appellate court relict

from the March 24, 1982 was “purely a delaying tactic”, and part

of the pattern of “intentionally dilatorious” conduct outlined

the Board in its Order of December 2, 1982.

On April 20, Unity filed a response in opposition, and a

request that the Board reconsider its March 24, 1983 Order. The

Attorney General filed a response April 28, 1983.

The motion for reconsideration is granted. Unity’s

primary argument is that the March 24 Order confirming that the

December 2 sanction order applied to the amended petition filed

pursuant to the December 30 Order (also reaffirming the December 3

Order) should be vacated on the grounds that the December 2 Order

was

predicated 

on the November 12 Order ordering discovery

production, which Unity alleges to be void.

The November 12 Order denied in whole Unity’s request to

strike

all interrogatories and requests to produce, granted the

Agency’s motion to compel, and ordered responses to be filed on

or before November 19. The Order also granted in part the

Agency’s motion to compel responses to requests for admissions

of fact, to which Unity had objected on relevancy grounds, and

ordered that these also be answered on or before November 19.

4 S)Q

2

The Board at its November 12 meeting voted to grant in

part and to deny in part both the Agency’s motion to compel and

Unity’s motion to strike. It did not discuss at the meeting which

specific requests would be granted or denied, but stated that such

would be reflected in its final Order. Unity argues that there-

fore the Board did not adopt its Order at a meeting “open to the

public” as required by Section 5 of the Act and 35 Ill. Adm. Code

101.109(a), and further that the Board had unlawfully delegated

its authority to an administrative assistant, based on a remark

by the Board member assigned to prepare the Order. “Proof” of

these allegations is asserted to be given by delay in transmission

of the Order until November 16.

Unity’s voidness argument is rejected. The Board’s

decision was made at a public meeting, at which Unity’s counsel

was admittedly present. Neither the Act nor the Board’s rules

preclude decision on a matter if a draft Order has not been

prepared prior to a Board meeting. The Board’s assignment of

preparation of an appropriate Order to a Board Member, who may

refer to the fact that an assistant will assist in preparing it,

is no more unlawful a delegation than that of a court which

directs a clerk or counsel appearing before it to draft an order

for entry by the court. Orders prepared after Board meetings are

routinely scrutinized by one, if not a majority of, Board Members

when the subject matter is in any wise complex.

To the extent that a Board Member may have infelicitously

phrased a remark at a Board meeting, it is to be remembered that

“..,.any transcript of such meeting is not part of the

record for purposes of appeal. First, the opinions

of individual Board members are personal in nature

and not actions of the Board. Furthermore, such is

not evidence. Also, the accuracy of the recorded

information is disputed since a Board meeting, unlike

a hearing before the Board, is not required to be

recorded stenographically, or by another recording

method (Ill. Rev. Stat. 1979, ch. 111½, par. 1105,

1032).” fllliriois Power Co. v. Pollution Control

Board, et al., No. 81—34, (Ill. App. 3rd Dist.

September 30, 1981 slip op. at 9).

Any delay in transmission of a Board Order may be

attributable to any one or a combination of factors invoiving

slippage in actual drafting, typing, zeroxirig, or the clerk’s

certification of an Order and mailing.

The exact circumstances of the four day transmission gap in

this case are not known to the Board (any more than is the exact

conversation of the November 12 meeting). The Board notes

however that the Board’s meeting was held on a Priday, and the

Order was transmitted on a Tuesday. The four day gap does not

in any case excuse Unity’s delay from November 19 to December 1

52- 124

3

in making ~ response to the Board’s Order by way of motion or

production, particularly since Unity’s counsel was advised at

the Board meeting that at least some discovery production would

be required in fairly short order (See December 2 Order).

Unity’s other arguments concerning the Board’s November,

December and March Orders have been considered and addressed

once, if not more than once, and are rejected.

The Board’s Order of March 24, 1983 is hereby affirmed, The

Board declines to certify the question for interlocutory appeal

to the Appellate Court. The Board is convinced by the Agency’s

argument that this Order is not a proper subject for interlocutory

review, see People ex rel. Scott v. Silverstein, 87 Iii. 2d 167

(1981), and that administrative and judicial economy would be best

served by having this matter proceed to hearing. The Agency’s

motion to set a hearing date is granted. Hearing shall he

scheduled within 15 and held within 45 days of the date of this

Order; the hearing officer shall not continue either date.

Given Unity’s history of delay in this case, which “remand

for hearing” history is now close to a year old, the Board advises

the parties that no motion for reconsideration of this Order will

be accepted unless a) it is a joint motion, and b) filed within

12 days of the date of this Order.

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify that the above Order was adopted

on the 

___

day of 

1983 by a vote of

__________

Christan L. Moffett, Clerk

Illinois Pollution Control Board

52-125