ILLINOIS POLLUTION CONTROL BOARD

STATUTE AND REGULATIONS
1. PARTIES’ ARGUMENTS: MOTION AND RESPONSE
Relevance
1. Scope and Nature of Information Requested
  1. BOARD DISCUSSION AND RULING

October 5, 2006

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

PACKAGING PERSONIFIED, INC.,

Respondent.

)

PCB 04-16

(Enforcement - Air)

ORDER OF THE BOARD (by T.E. Johnson):

This air enforcement action was initiated by the Office of the Attorney General, on behalf

of the People of the State of Illinois (People), on its own motion and at the request of the Illinois

Environmental Protection Agency (Agency). On August 3, 2006, the People filed a seven-count

complaint against Packaging Personified, Inc. (Packaging), a film processing and printing facility

located in Carol Stream, Du Page County. Today, the Board rules on a motion and interlocutory

appeal concerning a discovery dispute.

The complaint alleges violations of the Environmental Protection Act (Act) (415 ILCS 5

(2004)), as well as various Board air regulations. According to the People, these violations

include Packaging’s alleged construction and operation of four presses and a curing oven without

permits; failure to timely submit annual emissions reports; operation of a major source without a

Clean Air Act Permit Program (CAAPP) permit; violation of New Source Review rules;

Emissions Reduction Marketing System (ERMS) rule violations; and failure to demonstrate

compliance with flexographic printing rules in 35 Ill. Adm. Code 218.

In this order, the Board grants Packaging’s August 29, 2006 motion for leave to file an

interlocutory appeal of a June 28, 2006 hearing officer order denying a motion to compel the

People to respond to various discovery requests. Some of the requested discovery concerns the

rulemaking process in which the Board adopted the flexographic printing rules:

Omnibus

Cleanup of the Volatile Organic RACT Rule Applicable to Ozone Nonattainment Areas:

Amendments to 35 Ill. Adm. Code Parts 203, 211, 218, and 219, R93-9 (Sept. 9, 1993). This

requested discovery includes public record information, as well as information about

communications between the Agency and other companies and agencies. Other requested

discovery concerns adjudicatory proceedings in which the Board considered and granted requests

for relief from the R93-9 rules, including records of variances and adjusted standards, or actions

to enforce the R93-9 rules.

As to the R93-9 rulemaking material, Board affirms the hearing officer’s order, finding

that the information sought is irrelevant under the terms of Sections 29 and 41 of the Act (415

ILCS 5/29, 41 (2004)), which prohibit challenges of rules in enforcement proceedings of issues

“that could have been raised in a timely petition for review” under those sections. 415 ILCS

5/41(c) (2004). As to the information related to past relief from or enforcement of the

flexographic printing rules, the Board finds that any relevance these materials may have is

outweighed by the burden to complainant of reviewing and copying. In summary, complainant

need not provide the requested discovery.

STATUTE AND REGULATIONS

The hearing officer order at issue relates to the discovery process. Section 101.616(a) of

the Board’s procedural rules provides:

All relevant information and information calculated to lead to relevant

information is discoverable, excluding those materials that would be protected

from disclosure in the courts of this State pursuant to statute, Supreme Court

Rules or common law, and materials protected from disclosure under 35 Ill. Adm.

Code 130 [protecting trade secrets and other non-disclosable information

specified by the Act]. 35 Ill. Adm. Code 101.616(a).

Regarding interlocutory appeals of hearing officer orders, Section 101.518 of the Board’s

procedural rules provides:

Interlocutory appeals from a ruling of the hearing officer may be taken to the

Board. The Board may consider an interlocutory appeal upon the filing of a

written motion. 35 Ill. Adm. Code 101.518.

Section 29 of the Act addresses judicial review of regulations adopted by the Board:

Any person adversely affected or threatened by any rule or regulation of

the Board may obtain a determination of the validity or application of such

rule or regulation by petition for review under Section 41 of this Act.

Action by the Board in adopting any regulation for which judicial review

could have been obtained under Section 41 of this Act shall not be subject

to review regarding the regulation’s validity or application in any

subsequent proceeding under Title VIII [enforcement], Title IX

[variances] or Section 40 [permit appeals] of this Act. 415 ILCS 5/29(a),

(b) (2004).

Section 41 of the Act provides, in pertinent part in subsections (a) and (c):

Any party to a Board hearing, . . . [and] any party adversely affected by a

final order or determination of the Board . . . may obtain judicial review,

by filing a petition for review within 35 days from the date that a copy of

the order . . . was served upon the party affected . . . under the provisions

of the Administrative Review Law . . . except that review shall be afforded

directly in the Appellate Court . . . .

***

No challenge to the validity of a Board order shall be made in any

enforcement proceeding under Title XII of this Act [penalties] as to any

issue that could have been raised in a timely petition for review under this

Section. 415 ILCS 5/41(a), (c) (2004).

DISCOVERY REQUESTS AND HEARING OFFICER ORDER

The introduction section of Packaging’s motion describes the background for its motion

to bring an interlocutory appeal of the hearing officer’s June 28, 2006 order as follows:

On January 14, 2005, Packaging served Complainant with its Discovery Requests.

In a nutshell, Packaging’s discovery requests were designed to obtain information

regarding the Flexographic Printing Rules, 35 IAC 218.401

et seq

., which resulted

from the rulemaking proceeding designated R93-9. A primary component of

Packaging’s defense in this concerns the issue of the availability of an adjusted

standard for certain of Packaging’s emissions. While several other companies

with virtually identical issues were allowed to apply for, and received, site-

specific relief, such relief was denied to Packaging on the basis of lack of

timeliness in applying for such relief. Packaging’s motive for requesting this

discovery was to determine if other companies received notice or other documents

regarding the Flexographic Printing Rules that Packaging did not receive, and if

other companies were able to participate in R93-9 at a level of involvement that

was not available to Packaging. Motion at 2.

The contested discovery involves both interrogatories and document requests.

Packaging’s requests are too lengthy to set forth here. But, in summary:

Interrogatories 6 through 12 ask for identification of all entities on the Board’s

R93-9 notice and service lists; identification of all entities receiving

correspondence from or engaging in communications with the Agency regarding

R93-9 or the flexographic printing rules; for each of the above-identified entities,

identification of any such communications with the Agency and description of the

type of business, its processes, and its control equipment; identification of all

communications between the Agency and the companies that received adjusted

standards from the flexographic printing rules; identification of all Chicago area

flexographic or rotogravure printers; identification of all communications between

the United States Environmental Protection Agency (USEPA) and the State of

Illinois or any Illinois agency relating to the flexographic printing rules, including

promulgation, State Implementation Plan (SIP) approval, and enforcement of, and

variances and adjusted standards from, the flexographic printing rules;

identification of all communications between the Agency, USEPA, and recipients

of adjusted standards relating to USEPA approval, as SIP revisions, of the

adjusted standards from the flexographic printing rules granted to those

companies;

Document Requests 13 through 18 seek copies of all documents relating to R93-9,

including written comments in R93-9; any notices from the Agency or the Board

to Packaging regarding R93-9; all documents relating to Board cases AS 00-11,

AS 00-12, AS 00-13, PCB 99-165, PCB 99-167, and PCB 99-170; all documents

relating to the flexographic printing rules, including promulgation, variances and

adjusted standards from the rules, and enforcement of the rules by USEPA, the

State of Illinois, or any other entity with administrative or judicial enforcement

authority with respect to the rules; and documents related to USEPA approval of

adjusted standards as SIP revisions.

See

People v. Packaging Personified, Inc.,

PCB 04-16, Hearing Officer Order at 3-4 (June 28, 2006).

Complainant declined to provide the requested discovery. Packaging moved the hearing officer

to compel discovery. Complainant opposed the motion, and Packaging filed a reply.

. at 1.

On June 28, 2006, the hearing officer issued his order on Packaging’s motion to compel.

The order summarized the contested discovery requests. After reciting the parties’ arguments,

the hearing officer order contained the following discussion:

Section 101.616 of the Board’s procedural rules state that all relevant information

and information calculated to lead to relevant information is discoverable.

The rulemaking process itself is immaterial and irrelevant to the violations alleged

in the complaint at bar. Moreover, the requested information would be overly

burdensome to the Complainant, much of which is in the Board’s public file.

[Packaging’s] motion to compel is denied.

Packaging Personified, PCB 04-16,

Hearing Officer Order at 4.

PARTIES’ ARGUMENTS: MOTION AND RESPONSE

Relevance

Packaging’s motion for interlocutory review of the hearing officer order argues that the

requested discovery would produce information relevant to Packaging’s defense, in that:

. . . nevertheless were allowed to pursue variances and adjusted standard relief

with the apparent approval by the [Agency], and without any enforcement actions

being brought by Complainant. Thus, the questions of notice, who was involved

in rack (sic) regulations, subsequent IEPA discussions with similarly situated

Flexographic printers, and the decisions to authorize relief without accompanying

enforcement actions is directly relevant to Packaging’s defense to the enforcement

action brought in this case, including but not limited to the issue of the gravity and

appropriateness of the demanded penalty. Motion at 5 (emphasis in original).

In response, the People argue that, “[a]bsent a claim of administrative procedural

irregularities, or claims of constitutional violation . . . the enactment of a regulation has no

relation to whether or not it was subsequently violated.” Response at 3. Compliance by other

companies is not relevant, complainant argues, because Packaging “provides no basis for its

extraordinary claim that it was prevented from seeking or obtaining regulatory relief . . . and

[Packaging] did not apply for or seek an adjusted standard,

either before or after this case was

filed.”

. at 5 (emphasis in original). The People cite as authority for their position TTX

Company v. Whitley, 295 Ill. App. 3d 548, 692 N.E.2d 790 (1st Dist.1998) (reversing an order

requiring the Department of Revenue to disclose information in other taxpayers’ returns).

Scope and Nature of Information Requested

Packaging’s second argument is that the requested discovery is narrowly tailored, and is

not unduly burdensome to complainant. In response to complainant’s assertion that it would be

required to evaluate the records of various rulemakings and other proceedings over the course of

some 37 hours, Packaging states, without elaboration, that its discovery is narrowly tailored,

reasonable, and directly relevant. Packaging contends that any burden on complainant “is a

direct result of the baseless allegations raised in the Complaint . . . seeking thousands and

thousands of dollars in penalty as a result of allegations raised in 12 counts in a 40-plus page

Complaint.” Motion at 6.

In response to the second argument, complainant contends that the requests are overbroad

and unduly burdensome, particularly since complainant has already spent time searching and

providing thousands of pages of documents. Complainant asserts that much of the information,

which complainant does not concede is relevant, is information maintained in the files of others,

including USEPA, the Board, or other agencies. Complainant argues that in the “absence of

nexus to any legitimate claim or defense in this case, such requests can only result in harassment,

by attempting to compel Complainant to expend State resources searching for irrelevant

information.” Response at 6.

BOARD DISCUSSION AND RULING

The Board grants Packaging’s motion for interlocutory review. On review, the Board

affirms the hearing officer and determines that complainant need not provide the requested

discovery.

Packaging’s motion clarifies that its discovery requests are limited to information within

complainant’s possession:

The notion that Packaging expected or was entitled to compel Complainant to

produce documents not with its possession, custody or control was never raised or

This clarification eliminates any issue that complainant is being requested to conduct original

research or provide material not contained in Agency files. Most of the information requested

appears to be public information contained in the Board’s files in various named dockets.

As to relevance, Packaging in essence argues that the information it seeks regarding the

adoption of R93-9 should be discoverable to prove that it was treated differently by the Agency

than other companies during the rulemaking process. Complainant argues that the validity of the

Board’s enactment of the flexographic printing regulations is irrelevant in the context of this

proceeding. That principle is explicitly contained in Section 41(c) of the Act, which provides

that:

No challenge to the validity of a Board order shall be made in any enforcement

proceeding under Title XII of this Act as to any issue that could have been raised

in a timely petition for review under this Section. 415 ILCS 5/41(c) (2004);

see

also

415 ILCS 5/29(b) (2004).

The time, if at all, for Packaging to raise objections about the validity or application to it

of the R93-9 rules elapsed 35 days after the Board’s adoption of the rules on

September 9, 1993—more than 13 years ago. The Board’s records show these rules were never

appealed. Information concerning the process of adopting the R93-9 rules is therefore irrelevant.

This brings the Board to consideration of Packaging’s request for information concerning

other companies’ requests for relief from, and prosecutions for violations of, the R93-9

flexographic printing rules. Packaging argues such information is relevant to, or calculated to

lead to information relevant to, its theory of defense. This theory seems to be that Packaging has

been subjected to selective prosecution, or treatment differing from that of other companies that

may have been advised by the Agency or otherwise made aware of the flexographic printing

rules earlier than was Packaging, so as to mitigate either liability or the amount of any penalty to

be imposed.

The Board agrees with complainant that the TTX decision is instructive here. The First

District Appellate Court reversed an order granting a company discovery of information in other

companies’ tax returns, finding the requested information irrelevant. Specifically, the court held

that:

TTX alleged in its complaint that it properly applied the single factor

transportation formula . . . . The issue before the circuit court was whether TTX

qualified as a transportation company . . . . Whether other companies unrelated to

TTX calculated their income taxes as transportation companies, and whether they

were audited for doing so, is irrelevant to the issue of whether TTX should be

designated a transportation company for income tax purposes. The relevant

question is not whether TTX was treated differently from other companies, or

whether the Department [of Revenue] is interpreting correctly [the tax code] with

regard to other companies.

***

TTX asserts that if it obtains evidence during discovery that would establish a

basis for an equal protection claim, TTX could amend its complaint to add that

claim. TTX has not alleged a single fact that would support an equal protection

claim, and fails to show how the information sought in the interrogatory would

state a constitutional violation. Whether the Department violated TTX’s equal

protection rights by allowing other companies to use the single factor formula is

purely speculative. The information requested by TTX is not discoverable on the

basis of a potential future, unsubstantiated equal protection claim. TTX, 692

N.E.2d at 797.

Based on its relevancy finding, the TTX court did not address arguments that the discovery order

was unduly burdensome and oppressive.

Here, as in

TTX, the Board’s purpose is not to determine whether the Agency treated

other companies differently. It is long-settled that the Board has no jurisdiction to hear

allegations of any Agency misfeasance, malfeasance, or nonfeasance in its enforcement of the

Act and Board rules.

See

Landfill, Inc. v. PCB, 74 Ill. 2d 541, 367 N. E.2d 258 (1978). But, in

contrast to TTX, the Board is not prepared to find that the Agency’s enforcement experience

with any other flexographic printers may not be relevant to penalty concerns under Section 33(c)

or 42(h) of the Act (415 ILCS 5/33(c), 42(h) (2004)).

Much of the information sought, however, is already available to Packaging from the

Board’s files. The issue here, then, appears to be which entity will bear the burden of inspecting

and copying. Packaging has failed to convince the Board that these discovery requests are either

narrowly tailored or that the burden of production is reasonable. As the information is contained

in public records, the Board finds that the financial and personnel burden of analyzing and

copying materials already available to Packaging is not warranted here.

In summary, after accepting Packaging’s interlocutory appeal, the Board affirms the

June 28, 2006 hearing officer order, with the result that complainant need not produce the

requested discovery. The hearing officer is directed to expeditiously move the parties toward

resolution of this matter, consistent with the Board’s earlier order in the case.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on October 5, 2006, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board