BEFORE THE

POLLUTION CONTROL BOARD

~ECE~VED

OF THE STATE OF ILLINOIS

CLERK’S

OFFICE

SALINE COUNTY LANDFILL,

)

Petitioner,

)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

NOTICE

)

)

)

PCBNo. 04-117

(Permit Appeal)

MAR

05

200k

STATE OF IWNOIS

Pollution Control Board

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James

R. Thompson Center

100 West RandolphStreet

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

62797-9274

Stephen F.

Hedinger

Hedinger Law Office

2601

South Fifth Street

Springfield, IL

62703

Brian E. Konzen

Lueders, Robertson & Konzen, LLC

1939

DelmarAvenue

P.O. Box 732

Granite City, IL

62040-0735

Rod Wolfe, State’s Attorney

Saline County State’s

Attorney Office

Saline County Courthouse

10 East Poplar Street

Harrisburg, IL

62946

PLEASE

TAKE

NOTICE

that

I

have today

filed with

the

office

of the

Clerk

of the

Pollution

Control Board a MOTION FOR LEAVE TO FILE REPLY and REPLY TO RESPONSE TO MOTION

FOR ORDER OF PROTECTION,

copies of which

are herewith served upon you.

Respectfully submitted,

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

Respondent

John

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: March 3,

2004

V.

---

BEFORE THE POLLUTION CONTROL BOARD

CLERK’S

OFFICE

OF THE

STATE OF ILLINOIS

MAR

052004

SALINE COUNTY LANDFILL, INC.,

)

STATE OF ILLINOIS

Petitioner,

)

Pollution

Control

Board

v.

)

ILLiNOIS

ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

MOTION FOR LEAVE TO FILE REPLY TO RESPONSE TO

MOTION FOR ORDER OF PROTECTION

AND

PRIVILEGE

LOG

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 Section

101.500(e) ofthe Illinois Pollution Control Board’s (“Board”)

procedural rules

(35 Ill.

Adm.

Code 101.500(e)), hereby files a motion for leave to file a reply to

the response to the motion for order ofprotection and privilege log.

In support ofthis motion for

leave,

the Illinois EPA provides as follows.

1.

The motion

for order of protection

and privilege log

(“Illinois

EPA’s

motion”)

an order from the Hearing Officer that the documents identified in the privilege log would

subject to disclosure.

2.

At the time the Illinois EPA’s

motion was filed, counsel for the Illinois EPA was

not

aware that

the documents listed

on the privilege log had been inadvertently included in the

Administrative

Record (“record”) filed previously in this case.

3.

Counsel

for

the

Petitioner,

Respondent

and

Intervenor

(Saline

County

State’s

Attorney) brought

this

situation

to

the Hearing Officer’s

attention just

prior to

the

taking of a

deposition of Joyce Munie,

and

Illinois

EPA employee.

At

that

time,

counsel for the Illinois

EPA provided the

parties

and

the

Hearing Officer with

citations

to

two

cases

believed

to

be

PCB No. 04-117

(Permit Appeal)

sought

not be

1

---

relevant and applicable.

The Illinois EPA’s

position was and is that the inadvertent disclosure of

the documents should not act to waive the privilege status sought forthe documents.

4.

Since

that time,

Ms. Munie’s deposition transcript has been made available to

the

parties.

Also,

the

Petitioner has

filed

a

response

to

the

illinois

EPA’s

motion

(“Petitioner’s

response”), along witha letter supplementing the response.

5.

Based

upon

the

information

and

arguments

contained

within

the

Petitioner’s

response, including

portions of Ms.

Munie’s deposition

transcript,

a

material

prejudice would

result if the Illinois EPA were not allowed to file a reply.

6.

For the reasons

stated herein, the Illinois

EPA hereby respectfully requests

that

the Hearing Officer allow the Illinois EPA to

file a reply to the Petitioner’s response to prevent

material prejudice.

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent

John

~,.

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:

March 3, 2004

This

filing submitted

on recycled paper.

2

---

RECEIVED

CLERK’S

OFFICE

BEFORE THE POLLUTION CONTROL BOARD

MAR

052004

OF THE STATE OF ILLINOIS

STATE OF ILLINOIS

Pollution Control Board

SALINE COUNTY LANDFILL, iNC.,

)

Petitioner,

)

v.

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

-

Respondent.

)

REPLY TO

RESPONSE TO MOTION FOR ORDER OF PROTECTION

AND

PRIVILEGE LOG

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

Section

101.500(e) ofthe Illinois Pollution

Control Board’s (“Board”)

procedural

rules

(35

Ill.

Adm.

Code

101.500(e)),

hereby files

a reply

to

the

response to

the

motion

for

order

of protection

and

privilege

log.

In support

of this

reply, the

Illinois

EPA

provides as follows.

1.

The

motion

for

order of protection

and

privilege log

(“Illinois

EPA’s

motion”)

an order from the Hearing Officer that the documents identified in the privilege log would

subject to disclosure.

2.

At the time the Illinois

EPA’s motion was filed, counsel for the Illinois EPA was

not

aware

that the documents listed

on

the privilege log had been inadvertently included in the

Administrative Record (“record”) filed previously in this case.

3.

Counsel

for the

Petitioner,

Respondent

and

Intervenor

(Saline

County

State’s

Attorney) brought

this

situation to

the Hearing Officer’s

attention just

prior to

the taking of a

deposition of Joyce

Munie,

and

Illinois

EPA

employee.

At

that

time,

counsel

for the Illinois

EPA provided

the parties

and

the

Hearing Officer

with

citations

to

two

cases

believed to

be

PCB No. 04-117

(Permit Appeal)

sought

not be

1

---

relevant and applicable.

The Illinois EPA’s position was and is that the inadvertent disclosure of

the documents should

not act to waive the privilege status

sought for the documents.

4.

Since that time, Ms.

Munie’s deposition transcript has been made available to the

parties.

Also, the

Petitioner has

filed a

response

to

the

Illinois

EPA’s

motion

(“Petitioner’s

response”), along with a letter supplementing the response.

5.

In the Petitioner’s response,

the Petitioner argues

that the documents in question

should

be

disclosed

consistent

with

Illinois’

policy

of encouraging

disclosure.

Further,

the

Petitioner argues that the attorney work product privilege does not act to shield the documents in

question from disclosure.

6.

The Petitioner cites to

the balancing test

employed

by the

court in

the case

of

Dalen v.

Ozite Corporation, 230 Ill. App. 3d

18,

594 N.E.2d 1365 (2’~

Dist.

1992).

Based on an

application of that test, the Petitioner argues that the documents in question should be disclosed.

7.

In a letter supplementing the Petitioner’s

response, the Petitioner further cites to

portions of the deposition transcript of Ms.

Munie in support ofthe contention that the balancing

test utilized by the Ozite court should weigh in favor of disclosingthe subject documents.

8.

The

Illinois

EPA

respectfully

disagrees

with

the

Petitioner’s

arguments

and

conclusions thereto.

Also,

it

is

necessary to

clarify the

arguments of the Illinois

EPA on

this

convoluted topic.

9.

The Illinois EPA’s

motion to the Hearing Officer seeks protection for documents

listed

on the privilege log (and

provided as

an attachment to the Hearing Officer).

A review of

the Illinois EPA’s motion clearly indicates that counsel for the Illinois EPA was not aware at the

time of filing

the motion

that

the

documents listed

in

the privilege

log

had been inadvertently

disclosed through the record.

2

---

10.

It is

unclear what transpired internally within the Illinois EPA that resulted in the

subject

documents

being

included

in

the

record,

but

a

review

of those

documents

and

the

documents

presented

to

the

Hearing

Officer

indicates

that

the

documents

presented

to

the

Hearing

Officer include

an

“Exempt”

stamp.

This

indicates

that

the

documents

have

been

screened pursuant

to

an

internal

Illinois EPA review process.

That the

documents made their

way

into

the

record

is

clear

proof that

the

review

process

took

place

some

time

after

the

documents were

provided for copying

and

filing

with

the Board,

and

that

for some reason the

reviewprocess broke down in this limited instance.

11.

However, there is

clearly a process that

is employed by the Illinois EPA to

screen

privileged

documents,

as

evidenced

by

the

“Exempt”

stamp

on

the

copies

provided

to

the

Hearing Officer.

Counsel for the Illinois EPA admits that a review of the documents provided

for copying and filing was not

undertaken,

in

this

case

due

to

an

excessive work load

and

the

sheer volume ofthe record (approximately 3,500 pages).

12.

After counsel for the Illinois EPA was informed ofthe inadvertent disclosure, the

Ozite case and the case ofJoliet

Sand and Gravel Company v.

Illinois Pollution

Control Board,

163

Ill. App. 3d

830,

516

N.E.2d

955

(3’~

Dist.

1987) were offered to

the Board

as persuasive

case law

in

support ofthe contention that the documents should

nonetheless be protected, or at

the very least that the inadvertent disclosure should not in

and of itself result in a waiver of any

otherwise applicable privilege.

13.

The Joliet

Sand

and

Gravel

case involved

a

situation

in

which

a permit

analyst

mistakenly provided

certain documents to be

included

in

the Illinois

EPA’s

record

on

appeal.

When

the

Illinois

EPA’s

attorney

discovered

the

inadvertent

disclosure,

he

withdrew

the

documents.

The Board

and

the appellate

court decided

that the

documents were not related

to

3

---

the case at hand

and therefore

were properly excluded from

evidence.

Joliet

Sand and Gravel,

163 Ill. App. 3d at 836, 516 N.E.2d at 960.

14.

While

the

Joliet

Sand

and

Gravel

case

is

not

directly on

point

from

a

factual

standpoint,

it

is

persuasive

for the

proposition

that

it

is

appropriate

to

exclude

documents

inadvertently disclosed in

an

administrative record where

there was

a reasonable

basis

for the

exclusion.

In that

case, the basis

was

that

the documents were not relevant to

the case

under

review.

In the present case, the basis

is that the documents protected by both the attorney-client

and

attorney work product privileges.

Ifthose privileges

are found to exist, as they should,

then

the mere inadvertent disclosure in the record should not act to allow disclosure.

15.

Further,

in

the Ozite

case, a

balancing test was employed

to

determine whether

the documents in question should be disclosed despite an attorney-client privilege.

Those factors

were:

1) the reasonableness ofthe precautions taken to prevent the disclosure; 2) the time taken

to

rectify

the

error;

3) the

scope of the

discovery;

4) the

extent of the

discovery;

and

5)

the

overriding issue offairness.

16.

In this

case,

all

factors should weigh in

favor of protecting the documents.

The

Illinois

EPA has an internal process by which documents are to be screened from

disclosure, as

evidenced

by

the “Exempt”

stamp

found

on

the

documents proffered

to the Hearing Officer.

Admittedly, that system was somehow bypassed since the documents in the record had not

yet

undergone the

screening, but nonetheless

a system

is

in place that would normally prevent the

inadvertent disclosure.

17.

As

soon

as

counsel

for the

Illinois

EPA was made

aware

of the

error,

it was

brought to the attention of the Hearing Officer.

From a time standpoint, it

is noteworthy that this

was discovered prior to the deposition ofthe only

employee of the Illinois

EPA identified as a

4

---

potential witness

by all parties.

And,

obviously, the hearing in this

case has yet to

be held,

and

the parties have yet to elicit any testimony at hearing or submit post-hearing briefs.

18.

The

scope

of the

discovery

in

this

case

is

governed

by

the

rules

that

would

otherwise apply

to

the production ofthe Illinois

EPA’s

administrative record.

There

is nothing

in the Board’s rules

oil that

subject

that would

require the Illinois

EPA to

disclose documents

that are otherwise protected by attorney-client or attorney work product privileges.

19.

The extent ofthe disclosure is

effectively total, since the Petitioner and the Board

(and

the Intervenor)

have

all

been provided with

copies of the

record.

However, again

since

none of the parties have made any

dispositive arguments to

the Board based on the record,

and

since no testimony has been elicited at hearing, the extent ofdisclosure should not be considered

as adverse to the Illinois EPA’s request to protect the documents.

20.

Finally, there is the matter ofthe overriding issue of fairness.

There would be no

prejudice

to

the Petitioner

in

this

case

if the

documents in

question

are withdrawn

from

the

record

and

no

reference

to

them

is

made

henceforth.

The

material

contained

within

the

documents is clearly that

subject to a privilege of either orboth attorney-client and attorney work

product, and therefore a

greater unfairness

would befall the Illinois

EPA if the documents were

not

excluded.

The Petitioner can obtain

(and in

deposition questioning

has elicited)

testimony

from

the Illinois

EPA’s witness that will allow them to

present their complete arguments to the

Board,

and

the

content

of

the

documents

in

question

is

not

necessary

for

making

those

arguments.

21.

The Illinois EPA respectfully requests that the Hearing Officer consider this issue

on

a

two-step

basis.

First,

the

Hearing

Officer

should

determine

whether the

documents

in

question

ard properly subject to

a

claim of privilege.

Based

on

the content of the documents,

5

---

there is

little if any question that the documents represent either communications

solely between

the Illinois EPA and its technical staff (i.e., the client) and the Illinois EPA’s internal counsel and

the Illinois Attorney General’s Office (i.e., the attorneys).

Further, the documents clearly reveal

the internal thoughts,

opinions and strategies ofthe attorneys that would defend the Illinois EPA

in the (likely and now öertain) event that litigation would result.

22.

Second, once the Hearing Officer has determined that

a privilege does apply, the

Illinois

EPA believes

a

decision

should

be

made

as to

whether the privileges

attached to

the

documents have been

waived,

either

through

the

inadvertent

disclosure

or testimony

by

Ms.

Munie in her deposition.

23.

As

argued above, the Ozite balancing test should swing in the favor of the Illinois

EPA

and

the

position

that

the

inadvertent

disclosure

does

not

prevent

exclusion

of

the

documents.

And a review ofthe testimony given by Ms. Munie in her deposition,

as provided by

the Petitioner, indicates that there was never any

testimony by Ms.

Munie

regarding waiver of

the privilege ofthe documents or as to the content ofthe documents.

All Ms. Munie testified to

was the existence ofthe documents, and the resulting decision she made based on her review of

the documents.

At no time does, she disclose the content ofany ofthe documents in question.

For

the

reasons

stated

herein,

the

Illinois

EPA

hereby respectfully

requests

that

the

Hearing

Officer protect the documents in the privilege log from disclosure, and order the parties

to

withdraw

them

from

the

record

and

further

to

not

make

any

reference

to

them

in

any

arguments presented to the Board.

6

---

JLLINOIS ENVIRONMENTAL PROTECTION AGENCY,

~espondent

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:

March 3, 2004

7

---

CERTIFICATE OF SERVICE

I, the undersigned attorney at law, hereby certify that on March

3, 2004,

I served

true and

correct copies ofa MOTION FOR LEAVE TO FILE REPLY

and REPLY TO RESPONSE TO

MOTION

FOR

ORDER

OF

PROTECTION,

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

Illinois Pollution Control Board

James R.

Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

Carol Sudman,

Hearing Officer (Hand Delivery)

Illinois PollutionControl Board

1021

North Grand Avenue, East

P.O. Box 19274

Springfield, IL

62797-9274

Stephen F.

Hedinger (HandDelivery)

Hedinger Law Office

2601

South Fifth Street

Springfield, IL

62703

Brian E. Konzen (Hand Delivery)

Lueders, Robertson &Konzen, LLC

1939 Delmar Avenue

P.O. Box 732

Granite City, IL

62040-073

5

Rod Wolfe, State’s Attorney (Hand Delivery)

Saline County State’s Attorney Office

Saline County Courthouse

10

East Poplar Street

Harrisburg, IL

62946

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

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)

Assistant Counsel