ILLINOIS POLLUTION CONTROL BOARD
November 12,
1982
UNITY VENTURES,
)
)
Petitioner,
)
v.
)
PCB 80—175
)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
Respondent.
ORDER OF THE BOARD (by I.
C.
Goodman):
On October
5,
1982 the Board ordered that Unity respond to
the Interrogatories and Requests to Produce Documents filed
by
the Agency on June 11,
1982 and the Request for a Witness List
filed on July 22, 1982 no later than October
12,
1982 and
further
ordered that any additional discovery he completed within forty~
five days of that Order.
On October
12,
1982 Unity
filed
with
the hearing officer Motions to Strike the Interrogatories and the
Request to Produce.
As for the requested Witness List,
Unity
responded that it had not yet identified the witnesses it intends
to call at hearing.
On October 18,
1982 the Agency filed a Response in Opposition
to Unity’s October 12th motions,
a Motion to Compel Discovery and
a Request for Sanctions, and a Motion to Set Hearing Date.
On
October 22,
1982 the Agency filed a Motion to
Compel Responses to
Requests for Admissions of Fact and a Request for Sanctions, and
a Motion to Strike Certain Responses to the Request for Admission
of Facts.
Both pertain to the Responses filed by Unity on August
10,
1982,
and the latter was filed before the hearing officer.
Unity has not responded to the Agency’s motions of October 22nd.
It has, however, on November
3,
1982,
filed a Motion for Leave
to File Instanter and a Response in Opposition to the October 18th
Agency motions.
On that same day and before the hearing officer.
Unity filed a Motion to Set a Pre—hearing Date.
No response
to
this last motion has been filed by the Agency;
time to respond not
yet having expired.
On its own motion, the Board will consider the two Motions
to Strike filed by Unity on October
12,
1982, along with the
pleadings subsequently generated.
In its October 12th Motions to Strike the Interrogatories
and Requests to Produce Documents,
Unity avers that the answers
to the Interrogatories can be obtained by “alternative means~
49-255
2
which were not specified in that pleading;
that the Requests to
Produce were neither relevant, nor likely to produce relevant
material;
and that both discovery requests were burdensome.
Thus,
Unity moves to strike both discovery requests,
filed by
the Agency four months ago,
in their entirety.
In its Response, the Agency explains that the relevancy of
its requests
is premised on the issue of arbitrary and unreason-
able hardship should variance not be granted; identifies that
adequate proof of the same must be provided before variance may
be granted; and notes the five extensions of time to respond have
been granted Unity.
The Agency’s accompanying motion requests
that Unity be compelled, to answer immediately,
and should it not,
that sanctions be imposed.
On July
1,
1982 the Board denied a Motion
for Order by the
Agency since Discovery, including the Interrogatories and Requests
to Produce in question, had recently been served on Unity and
should have sufficed.
Since that date,
four of the five time
extensions have been granted to Unity.
Unity has never before
raised an objection to the discovery,
let alone
to the scope or
relevancy of the information sought.
Even now,
Unity’s objections
to the Interrogatories are not based on relevancy.
Pursuant to
Ill. Rev.
Stat.,
1981,
ch. 111½,
§35, adequate
proof of arbitrary and unreasonable hardship must be provided
in
order to receive a variance.
This being a variance proceeding,
the identity of the petitioner;
the funds expended on the project
as a whole, and on individual, units; and the persons or entities
expending such funds are relevant.
Presumably the Petitioner
would provide this information, since it
is seeking the variance
and is privy
to such information. Since the same is not already
contained in the Petition for Variance, the Board assumes that
it would be forthcoming.
However,
to avoid surprise or confusion
at hearing, the Board denies Unity’s Motion to Strike the Inter—
rogatories and Motion to Strike the Request to Produce Documents.
In addition to its opposition to the Motion to Strike, the
Agency filed
a Motion to Compel Discovery.
Unity
filed a Response
in Opposition, accompanied by a Motion
to File Instanter—-which is
hereby granted.
Unity argues that the Motion to Compel should be
before the hearing officer.
In fact, Unity raises the incongruous
argument that since it was not provided its right to respond to
the
Agency’s August Motion to Strike the Responses to the Admissions
of Fact as being untimely filed,
this Motion to Compel should be
before the hearing officer.
The Board notes that the previous
Motion to Strike was denied on September
2,
1982,
and after recon-
sideration,
it was again denied on October 5,
1982.
It
is unclear
how the Board’s customarily ruling on a Motion to File Instanter
along with the accompanying Motion,
after time has been allotted
for a Response, means that this Motion to Compel should be before
the hearing officer.
Furthermore,
since the Board’s hearing
49-256
3
officers issue no opinion, the Board purview often includes ruling
on pre-hearing disputes—-and, if necessary, by its own motion.
As stated
above,
the Board shall attempt to resolve the reccurring
disputes as to discovery in this matter.
For the same reasons Unity’s Motions to Strike are denied,
the Agency’s Motion to Compel is granted in part.
Unity is
ordered to respond on or before November 19,
1982, the original
date for discovery to be completed.
Should Unity fail
to respond
by that date, the Board shall
impose sanctions pursuant to 35
Ill.
Adm.
Code 107.101(c).
The Agency’s Motion to Compel also requested that it be
awarded the amount of reasonable expenses incurred in opposing
Unity’s motions.
Although Unity did not address this issue,
it is denied.
The imposition of sanctions,
if necessary,
is
deemed sufficient.
By motion of October 18,
1982, the Agency requested that a
hearing date be set.
On November
3,
1982, Petitioner filed a
Response,
but offered no specific reason why hearing should not be
set.
Petitioner also filed a waiver of the decision period until
March
1,
1983, and Motion to Set a Pre—hearing Date.
The Agency
Motion to Set a Hearing Date is granted.
Hearing
shaj.1 be sched-
uled by December
15,
1982 and take place no later than January
15,
1983.
As for pre—hearings, that will be left to the parties and
hearing officer to set as necessary.
The Board also orders that
Unity identify the witnesses, if any,
it intends to call for
hearing on or before December 15,
1982.
As mentioned above,
Unity had filed
its Responses to the
Admissions of Facts on August
10,
1982.
Said Response was filed
late, and the Agency moved to strike it, but was denied by Board
Order of September 2,
1982.
Now before the Board is an Agency
Motion to Compel Responses to the Admissions of Fact.
No response
to this Motion has been filed by Unity.
In responding to the Admissions
of Fact,
Unity alleged that
fifteen of the Admissions of Fact were irrelevant, and two of the
fifteen were also immaterial.
Admissions Nos.
11,
13,
14,
16—20,
29—30 pertain to Hobson Greene Unit
I,
while the variance sought
pertains to Hobson Greene Unit II.
Nevertheless, in its original
variance petition, Unity ties the two units together and states
that it would not have proceeded with the project if it “were
unable to develop Units
I and II along a parallel timeframe.”
(Petition,
pg.
7)
35
Ill. Mm.
Code 103.161(a)
of the Board’s Procedural
Rules allows discovery of evidence if
it appears reasonably
calculated to lead to discovery of evidence admissable at hearing.
Since development plans,
funding, etc. of the two units appear
linked, the Board finds that Nos.
11,
13,
16—20,
29—30 are
relevant
for purposes of discovery.
However,
the Board finds that Nos.
49-257
4
38—40 which pertain to zoning issues,
are immaterial.
Therefore,
the Agency’s motion is granted in part,
and denied in part.
Unity
is ordered to respond to Nos.
11,
13,
14,
16—20, and 29—30 on or
before November
19,
1982.
As for the Agency’s Motion to Strike Responses 4—9 of the
Request for Admission of Facts, which was filed before
the hearing
officer pursuant to the September 2nd Board Order,
it shall
remain
in his jurisdiction as previously directed.
IT IS SO ORDERED.
Board Member D.
Anderson abstained.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Boa~rd,hereby certify that the above Order was adopted
on the
/~t
~ day of
~
,
1982 by a vote of ~‘/—p
Christan L. Mof~t~’c3,Clerk
Illinois Pollution Control Board
49-258