BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ILLiNOIS
AYERS OIL COMPANY,
)
Petitioner,
)
V.
)
ILLiNOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
PCB No. 03-214
(LUST Appeal)
CLERK’S OFFICE
DEC
2
2003
STATE
OF ILLINOIS
Pollution
Contról Board
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL
62794-9274
NOTICE
Fred C. Prillaman
Mohan, Alewelt, Prillaman & Adami
Suite
325
1 North Old Capitol Plaza
Springfield,
IL
62701-1323
PLEASE
TAKE NOTICE
that
I
have today filed with
the
office of the
Clerk of the
Pollution
Control
Board
a
RESPONSE
.TO
EMERGENCY
MOTION
TO
COMPEL
DISCOVERY,
copies
of
which are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
John~.
Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December
1, 2003
CLERK’S
OFFICE
BEFORE THE POLLUTION CONTROL BOARD
DEC
2
2003
OF THE STATE OF ILLINOIS
STATE OF ILLINOIS
ILLINOIS AYERS OIL COMPANY,
)
Pollution
Control Board
Petitioner,
)
‘i.
)
PCBNo.03-214
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal)
PROTECTION AGENCY,
)
Respondent.
)
RESPONSE
TO EMERGENCY MOTION TO
COMPEL DISCOVERY
NOW
COMES the Respondent,
the Illinois
Environmental
Protection Agency (“Illinois
EPA”), by one of its attorneys,
John J.
Kim,
Assistant
Counsel
and
Special Assistant
Attorney
General,
and,
pursuant
to
35
Ill.
Adm.
Code
101.500
and
101.502,
hereby
requests
that
the
Hearing
Officer
assigned
by
the
Illinois
Pollution
Control
Board
(“Board”)
to
oversee
the
conduct ofthis
appeal deny the Petitioner’s emergency motion to compel
discovery.
In support
ofthis response, the Illinois EPA states as follows:
I.
BACKGROUND
1.
On March
28,
2003,
the Illinois
EPA
issued
a
final decision
to
the Petitioner,
Illinois
Ayers
Oil
Company
(“Ayers
Oil”).
The
decision
modified
a
high
priority
site
investigation
corrective action plan (“HPCAP”)
and associated budget submitted by Ayers
Oil.
On May 3, 2003, Ayers Oil sent a petition for review ofthe Illinois EPA’s decision to the Board.
The present appeal followed.
2.
On
or
about
October
30,
2003,
the
Petitioner
propounded
interrogatories
and
requests for production of documents upon the Illinois EPA.
On or about November 20, 2003,
the Illinois
EPA sent
responses to those
discovery requests to the Petitioner.
On November 24,
2003,
counsel
for the
Petitioner
sent
a
letter
(“demand
letter”)
asking
that
certain
specific
1
documents
be
provided
on
November
25,
2003,
when
depositions
of
three
Illinois
EPA
employees would be held.
3.
The Petitioner’s demand letter sought the following documents (in the descriptive
terms used by the Petitioner in the demand letter):
1) Rate sheets for each of the personnel and work items
in the subject budget and
used by the Illinois EPA to determine reasonableness, including rate sheets for a
professional
engineer,
a
project
engineer,
a staff geologist,
a
field
manager,
a
geoprobe and mobilizationlde-mobilization;
2)
The
internal
guidance
document
used by
the
Illinois
EPA
to
assist
in the
determination ofthe reasonableness of costs included in proposed budgets;
3)
The
Illinois
EPA’s
“fee”
database
used
to
compile
any
type
of ranges,
averages,
etc.,
as to
what
fees
and
other
charges
are
incurred by
owners
and
operators
conducting
Leaking Underground Storage Tank (“LUST”) projects~
in
Illinois;
4) All databases developed by the Illinois EPA over time
and in use in the year
2003
for determining ranges of reasonableness as
applied to
fees of contractors,
etc., in connectionwith LUST projects;
5)
All
databases developed
by the Illinois
EPA over time
and in use in the year
2003
for determining ranges ofreasonableness as applied to
fees of contractors,
etc., in
connection with
remediation
activities
undertaken
and
paid
for
by
the
Illinois EPA;
6) Memorandum attached to
the rate sheet used in this
situation,
and
informing
the users ofthe rate sheet that the sheet is to be used as a guidance document;
2
7) Draft final decision, prepared by the project manager on the subject project for
review and signature by the unit manager;
8) Job classification requirements
for employees
within the LUST
Section
who,
in the subject budget review case, reviewed and judged whether the fes and time
requested in the budget are, in fact, reasonable;
9) As of the date ofthe final decision under appeal, the Illinois EPA’s established
per-hour
rates that
were
acceptable for the following personnel identified in
the
subject
budget:
Professional
Engineer,
Project
Engineer,
Staff
Geologist,
and
Field Manager;
10) The LUST Program Project Manager Handbook, used by the Illinois EPA to
review the budget which is the subject of this appeal; and
11) A document
described as “IRT 500.003,” which
appears by reference on the
only document produced by the Illinois EPA in response to Petitioner’s request to
produce
documents,
being
a
single
page
from
the
LUST
Program
Project
Manager Handbook
(as
described therein,
IRT
500.003
was
developed
for the
purpose ofassisting Illinois EPA reviewers in reviewing budgets.
4.
On
November
25,
2003,
the
Illinois
EPA
provided
some
of the
information
requested in the Petitioner’s
demand letter.
Specifically, the Illinois
EPA provided the rate sheet
information
for
a
professional
engineer,
engineer,
geologist/hydrogeologist,
geoprobe
and
mobilization/de-mobilization (items
1,
2 and 9 in par.
3 above) and the memorandum attached to
the rate sheet (item 6 in par.
3 above).
5.
As to the remainder ofthe documents that would arguably be included within the
scope of the Petitioner’s
discovery request
andlor the demand letter, however, the Illinois
EPA
3
relied
upon
the
objections
and
responses
contained
within
its
responses
to
the
Petitioner’s
discovery requests.
Also, as was explained during the deposition taken on November
25,
2003,.
of Carol
Hawbaker,
the
project
manager
assigned
to
the
review
of the
plan
and
budget
in
question,
the “draft final decision”
that
is
described in
item
7 of paragraph 3
above is
the final
decision
itself,
as
the
“draft”
of that
decision that was prepared by
Ms.
Hawbaker was
later
signed without change by her unit manager.
6.
On
or about
November
26,
2003,
the Petitioner filed
an
emergency
motion
to
compel discovery (“motion to compel”) with the Board.
II.
THE MOTION TO COMPEL SHOULD BE DENIED
7.
The
gist
of the
motion
to
compel
filed
by
the
Petitioner
is
the
Petitioner’s
objection to what
it characterizes
as the Illinois
EPA’s
assertion that the
documents sought but
not
provided would
not
lead
to
information that
is
admissible
at hearing, and
therefore
is
not
subject to discovery.
Motion to
compel, p.
2.
8.
However, that
is not the objection that has been raised by the Illinois EPA.
First,
it
is
necessary to
ascertain
exactly what
documents are being
sought
by
the Petitioner
in
its
motion
to
compel.
In
terms
of documents,
the
Petitioner’s
interrogatories
and
requests
to
produce documents (reproduced verbatim in the Illinois
EPA’s
answers and
responses
that
are
found as Exhibits
1
and
2
to the motion
to
compel) seek
a much broader range, of information
than are listed
in
the demand letter and referred to
in
the motion to
compel.
For example, the
interrogatories
and
requests
to
produce
make repeated
references
to
seeking information
and
documentation
regarding
the
Illinois
EPA’s
practices
when
reviewing
requests
for.
reimbursement.
The
Illinois
EPA correctly
and
consistently
objected
to
the requests for this
information
and
documentation,
since
the
final
decision under
appeal
does not
involve
any
L
4
requestby the Petitioner for reimbursement ofcosts.
The specific objections made by the Illinois
EPA are found in Exhibits
1
and 2
to the motion to compel, and the Illinois EPA stands by them.
9.
In the
demand
letter
and
motion
to
compel,
the
Petitioner
does not
make any
reference
to
information
or
documentation
regarding
the
Illinois
EPA’s
handling
of
reimbursement requests,
and
rightly so.
Therefore, it is
a reasonable
assumption that
the
only
information
and
documentation
being
sought
by
the
Petitioner
is
that
which
is
specifically
referenced in the demand letter andlor motion
to compel.
Practically speaking, the items in
the
demand letter (listed
in
paragraph
3
above)
encompass all
the information and
documentation
referenced in the motion to compel.
The Illinois
EPA thus asserts that only that information and
documentation
should
be
considered
as
sought
by
the Petitioner.
Defining the
scope
of the
information
and documentation
at
issue
is
obviously necessary in
order for the Illinois
EPA to
respond to the motion to compel.
10.
The Petitioner
also argues that,
in support of its motion, the question presented-by
the appeal
is whether the
Illinois
EPA’s modification of the HPCAP and
budget is
reasonable
and,
as part
of the
reasonableness
inquiry,
whether the bases
of the
Illinois
EPA’s
decision
(including the generation ofa “rate sheet”) are valid.
Motion to compel, p. 2.
11.
The
Petitioner’s
statement
is
wrong,
and
not
surprisingly
seeks
to
switch
the
-
burden of proofonto the Illinois
EPA.
The Board’s authority to
review an Illinois EPA budget
determination arises
from
Section
57.7(c)(4)(D)
of the
Illinois
Environmental
Protection
Act
(“Act”) (415 ILCS
5/57.7(c)(4)(D)).
Section
57.7(c)(4)(D)
grants owners and operators the right
to
appeal
an Illinois
EPA determination on a proposed plan to the Board in
accordance with the
procedures ofSection 40 ofthe Act (415 ILCS
5/40).
The owner or operator must prove that the
costs associated with the budget are reasonable, will be incurred in performing corrective action,
5
and will be used to satisfy only the minimum requirements of the Act.
Rantoul Township High
School District No.
193 v.
Illinois EPA, PCB 03-42 (April
17, 2003).
12.
The
burden
in
this
appeal
is
upon
the
Petitioner
to
demonstrate
that
the
costs
included within the
HCAP
budget were
reasonable, will be
incurred
in
performing corrective
actioh, and will be used to satisfy only the minimum requirements of the Act.
The Petitioner is
making clear its
intention to put the Illinois EPA’s review process
on trial,
hoping to
move the
Board’s focus and attention away from the statutory standard and burden ofproof.
13.
Also,
the
Petitioner argues
in
the
motion
to
compel
that
the
Illinois
EPA
has
“consistently reported
to
the
USEPA”
that it has
issued
a
LUST
Managers’
Handbook
to
its
LUST
managers.
Motion
to
compel,
p.
3.
That
statement
is
wholly
unsupported
by
any
evidence, other than a passing reference in a transcript in a completely unrelated hearing held in
1997 to
some
letters
between the Illinois
EPA
and
the United
States Environmental Protection
Agency (“USEPA”) as found in Exhibit
5
to the motion to
compel.
Those
letters have not been
provided as part ofthe motion to compel, so it is impossible to determine whether they have any
relevance
at
all
to the present
appeal.
There is
no
information
as’ to the
dates of the letter, or
whether they relate to the Illinois EPA’s review of corrective action plans and budgets, which is
the
only
type
of decision that
is
the
Board’s focus
in
this
appeal.
The
case from
which
the
-
transcript is taken is one that involved the review of a reimbursement decision, and again, that
is
not the type ofdecision (and accordingly, the type ofreview process) that is before the Board for
review in the present matter.
14.
Further, the Illinois EPA takes the position that the Petitioner has misrepresented
the
testimony
of
Brian
Bauer
at
his
deposition.
(Neither
party
has
the
transcript
to
the
deposition,
given the short
time
period from
which the
deposition
was taken.)
The Petitioner
6
states that Mr. Bauer testified that newer LUST
Section project managers who are less familiar
with
the
terms (presumably used
in
the
LUST
Section)
do
review the handbook
in
question..
That
is not the recollection of counsel for the Illinois
EPA.
More clear testimony on this issue
was
given
in
a
deposition
taken
of Carol
Hawbaker,
who
testified
that
the
handbook
was
intended for the use of project
managers that
had just
gained
employment.
At
the very
least,
there was
no
testimony
by
any
management
of the
LUST
Section
that
the
handbook
was
a
necessary and required piece ofreading and consultation in the course ofreviewing budgets.
15.
Despite there being no
testimony on the
issue,
the Petitioner make the jump and
state that “it
is clear that LUST project managers have been instructed to use manuals containing
guidance
and policies
in
connection with their administration of LUST
programs,
including the
program which is
the subject of this
appeal.”
There is
simply
no
deposition
testimony of any
kind, nor
any other evidence
other than
the Petitioner’s
own unfounded
supposition,
that
the
handbook in question is
required reading.
Nothing in
any of the Illinois
EPA’s responses to the
interrogatories or requests to produce documents indicates that the handbook is required reading,
or that any employees that reviewed the budget in question were instructed to read the handbook.
16.
The Petitioner then argues that
even though the Illinois
EPA may assert that the
handbook
and
IRT
(Issues
Resolution
Team)
document
were
not
used
by
the
person
who
reviewed the file in
question, the documents may disclose that
they should
have been used,
or
that if they had been used, the result would have been different.
The Petitioner argues that there
is no wayto tell until it receives and reviews the documents.
17.
The Illinois
EPA takes the position (as it did in responses to
discovery requests)
that
the handbook
and IIRT
document
do
not relate to
the review
of a high priority
corrective
action plan or budget, which is the review that led to the final decision under appeal.
There
is
7
one
page in
the handbook
that
generically
refers
to
the review
of budgets,
and
that
page was
provided to the Petitioner since it arguably related to the review of an HCAP budget.
However,
there
is
nothing
else
in
the handbook,
and
nothing
in
the
IRT
document,
that
speaks
to
the
method of review
of a high
priority corrective
action
plan
and/or budget.
The
Illinois
EPA’s
concern
is
that
to
provide
these
documents
to
the
Petitioner
would
be
to
reward
a
“fishing
expedition” in which the Petitioner uses the pending appeal as an
excuse to seek
documents that
in no way relate to the decision under appeal.
18.
The
Petitioner then
states
that
the
Board has
previously overruled
the
Illinois
EPA’s
objections
to
these or similar
categories
of requested documents in
more than
one past
instance.
Motion to compel,
pp.
4,
5,
6.
Despite that
statement, the Petitioner has provided no
documentation or evidence other than,
at best,
references
to
transcripts from hearings (without
any
actual orders
or related pleadings).
The
facts
and
law
surrounding those
cases
(Brunetto,
Southern
Food
Park
and
Owens)
is
distinguishable,
and
the Petitioner has made
no
effort
to
establish
any analogous facts or legal
circumstances upon
which the Hearing
Officer or Board
could relywhen comparing those cases.
Simply put, those
are different cases with different facts
and different law that are not applicable or analogous.
19.
The Petitioner also
argues that the validity ofthe statistical methods employed by
the Illinois
EPA in generating its rate sheet information are at the heart of the case
and must be
brought
into
the
open
and
tested
for accuracy.
Motion
to
compel,
p.
6.
However,
as was
testified to
in
a
deposition
and as will almost
certainly be
raised
in
testimony
at hearing,
the
Illinois
EPA has
already explained
its
method
for
calculating the
relevant information
found
within
the rate sheet.
The Petitioner, in
seeking
to
obtain
the data from
which the rate sheet
information was arrived at, is
again hoping for a windfall ofinformation that
is totally unrelated
8
to the present appeal.
The information has no relevance and would play no
role in the Board’s
decision in this appeal.
The Illinois EPA has explained its calculations; if the Petitioner wants to
take issue with that,
it does not need any further information to
do
so.
But if the Petitioner does
receive the information sought
in the database,
it would be able
to
gain information about rates
that
are not
at issue
or were
even
proposed in
the budget
that
led to
the
final
decision under
appeal.
20.
As
provided
in
Section
101.614 of the
Board’s procedural
rules
(35
Ill.
Adm.
Code
101.614),
all
relevant
information
and
information
calculated
to
lead
to
relevant
information
is
discoverable.
Further,
the
question
of whether
discovery
is
unreasonable,
oppressive or irrelevant depends
on
the issues that the Board may consider on
a given appeal.
ESG Watts, Inc. v.
Sangamon County Board, PCB 98-2 (December 3,
1998).
21.
In the present case, the Board may look only to the issues raised within the final
decision issued by the Illinois EPA that
is under appeal.
That final decision relates to the IllinDis
EPA’s
review
of a
high priority
corrective
action plan
and
budget.
Accordingly,
only
those
issues related
to
the submission and
review of a high priority
corrective action plan
and budget
are before the Board,
and
that
scope defines the extent ofwhat information is discoverable
and
what information is irrelevant.
22.
The Illinois
EPA objects to the production of any information or documentation
other than what has been provided to date.
The information/documentation is
either completely
beyond the scope of the present appeal or is irrelevant (and will not lead to any information that
is
relevant).
A
review of each
item
included
in
the demand letter
(as found
in
paragraph
3
above), along with the Illinois EPA’s specific objections, follows:
9
1)
Rate sheets.
Those
rates
for the job
titles
that
were
modified
to the
figure
found
on
the
rate
sheet
(i.e.,
professional
engineer,
engineer,.
geologist/hydrogeologist,
geoprobe and mobilization/de-mobilization)
have been
provided
to
the
Petitioner.
The
Illinois
EPA
did
not
provide
the
rate
sheet
information for
a
field manager,
since the
final decision
deducted
all
the costs
associated with thatjob title;
the rate presented in the budget was not modified to
a
figure
on
a rate
sheet, but
rather
that
entire
line
item
was
deducted
as being
related to
unnecessary work.
There is
no
need for the Petitioner to be provided
with a rate that was not used by the Illinois EPA in the final decision.
2) Internal guidance document.
The document being referred to is the rate sheet.
3) The fee database for LUST projects.
As
argued above, there is no need for this
information to
be
provided to
the
Petitioner.
The
rates
themselves
that
were
utilized
have been provided, the method
of calculation has been provided,
and
that
is
more than sufficient
for the Petitioner to
raise any
arguments it wishes.
The’ database contains a great deal ofinformation unrelated to the present appeal
that would
serve no purpose in this appeal, but would reward
the Petitioner in its
fishing trip for any other irrelevant information that it could gain.
4)
All
databases
developed
over time
for LUST
projects.
The
only rates
that
were used in the final decision under appeal were calculated from the most recent
database,
and
that
is
the
only
database
that
should
even
be
the
subject
of
discussion.
And, as argued above, that database is
irrelevant to
the present case.
5)
All
databases
developed
over
time
for
Illinois
EPA-initiated
remediation
activities.
Any information related
to
this
request goes completely
beyond
the
10
scope of the present case,
as the Illinois EPA
did
not initiate
the cleanup
in this
case.
This is a clear example ofthe Petitioner seeking to gain information that
is
totally irrelevant to the decision under
appeal.
The Petitioner is using the present
appeal as the means to seek information that has nothing to do with the pending
appeal,
but which would likely be used in the context of other unrelated matters.
The Petitioner should not be rewarded with such information.
6)
The
memorandum
attached
to
the
rate
sheet.
That
document
has
been
provided to the Petitioner.
7) Draft
final decision.
The final decision under
appeal
was the draft decision
before Harry Chappel signed
the
letter.
There
is
no
other document
other than
the final decision.
8)
Job
classification
requirements.
This
is
a
class
of information that
again
indicates that the Petitioner seeks to attack the Illinois
EPA’s
method ofreview
(and personnel assigned to
such review), rather than focusing
on the documents
which
were
submitted
for review
to
the
Illinois
EPA.
There
is
no
reason
for
these
type
of employment-related
documents to
be
provided
to the
Petitioner.
The qualifications
and educational background of any person that conducted any
review ofthe HPCAP and budget can readily be
ascertained through testimony at
hearing.
Further,
any final decision issued by the Illinois EPA is a decision from
the
agency
as
a
whole;
each
person
associated
with
the
decision
met
their
respective job requirements, otherwise they would not be so employed.
There is
simplyno reason forthis irrelevant information to be provided.
9) Per-hourrates.
See the discussion regarding item
1
above.
11
10) The LUST
Program Project Manager Handbook.
This
document contains a
great deal of totally
irrelevant
information that
would
serve
no
purpose
in the
present appeal, but would
no
doubt be used henceforth by the Petitioner in
this
and
other projects.
The
only
portion
of the
handbook
that
is
even
remotely
‘7
relevant to the present case has been provided.
11) IRT
500.003.
This
document
does not
relate to
the review of high
priority
corrective
action plan budgets,
and
therefore
is
irrelevant to
the Board’s review
of the final decision under
appeal.
The document
speaks to the review of other
types of budgets
(site classification
and
low
priority), but
does not
address
the
method ofreview ofhigh priority budgets.
23.
Having made the preceding arguments and objections,
the Illinois
EPA is hereby
providing
the
database
(in
hard
copy
spreadsheet
form),
handbook
(with
the
page
already
provided tabbed) and IRT
500.003
to the Hearing Officer for an in
camera review.
The Illinois
EPA stresses that it is
doing
so only because it will be
readily apparent to
the Hearing Officer
that the arguments’and objections made herein are meritorious and
should be upheld.
24.
However, if the Hearing Officer should for some reason order that the documents
in part or in full should be produced and provided to the Petitioner, the Illinois EPA fully intends
-
to
exercise
its rights to
appeal such an order to
the Board as
a whole.
That being the case, the
Illinois EPA asks that the Hearing Officer not require the production ofany such information to
the Petitioner unless and until the Board has had an opportunity to hear the Illinois EPA’s appeal
of the
order.
If the
Hearing
Officer were
to
require
the
production
of any
of the
subject
documents in part or in whole prior to
the Board considering the Illinois
EPA’s appeal,
it could
result in the Petitioner being provided with documents that the Board later determines should
‘not
12
have been provided.
Obviously,
the very abuse
and negative consequence that the Illinois EPA
seeks to avoid would then have been allowed.
WHEREFORE,
for
the
reasons
stated
above,
the
Illinois
EPA
hereby
respectfully
requests that the Board enter an order denying the Petitioner’s motion to
compel and not require
the pr~oduction
of any further information and/or documentation beyond
that which has already
•been provided.
Respectfully submitted,
ILLiNOIS ENVIRONMENTAL PROTECTION
AGENCY,
~Th
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
.
-
217/782-5544
217/782-9143 (TDD)
Dated: December 1, 2003
This filing submitted on recycled paper.
13
CERTIFICATE OF SERVICE
I, the undersigned attorney at law,
hereby certify that on December
1, 2003,
I served true
and correct copies of a RESPONSE TO EMERGENCY MOTION TO COMPEL DISCOVERY,
by placing true and correct copies in properly sealed and addressed envelopes and by depositing
said sealed envelopes in a U.S. mail drop box located within Springfield, Illinois, with sufficient
First Class Mail postage affixed thereto,
upon the following named persons:
Dorothy M. Gunn, Clerk
Fred C. Prillaman
Illinois Pollution Control Board
Mohan, Alewelt, Prillaman & Adami
James R. Thompson Center
Suite 325
100 West Randolph Street
1 North Old Capitol Plaza
Suite 11-500
Springfield, IL
62701-1323
Chicago, IL 60601
(Fax delivery without documents)
Carol Sudman, Hearing Officer
-
Illinois Pollution Control Board
1021
North Grand Avenue East
P.O. Box 19274
Springfield,
IL
62794-9274
(Hand delivery)
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Res~onde~~~
Assistant Counsel
Special Assistant Attorney General
Division ofLegal
Counsel
1021 North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
