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04/25/88 the Environmental v. the Celotex Corporation Et

April 25, 1988

THE ENVIRONMENTAL PROTECTION AGENCY, PETITIONER-APPELLANT

v.

THE CELOTEX CORPORATION ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

522 N.E.2d 888, 168 Ill. App. 3d 592, 119 Ill. Dec. 226 1988.IL.594

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. STOUDER and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

The Illinois Environmental Protection Agency (Agency) seeks review of a final order entered by the Illinois Pollution Control Board (Board) on July 2, 1986, which struck count IV of their complaint and which barred assertion of any and all groundwater claims contained in the remaining counts of their complaint filed against the respondent, Celotex Corporation.

In July 1979, the Agency filed a complaint before the Board alleging various violations arising from Celotex' operation of a sanitary landfill in Wilmington, Illinois. Count IV of the complaint alleged that Celotex caused or allowed contaminants to be discharged into the waters of Illinois through its landfill operations, thereby causing or threatening to cause water pollution.

The record in the instant cause is voluminous, reflecting the vast amount of discovery conducted during the seven-year course of these proceedings. Approximately 247 motions, objections, requests for discovery and other pleadings were filed by Celotex alone. Our review is properly limited to the events and proceedings occurring between June 1985 and July 1986, as these events were the subject of the Board's order.

In June 1985, the Agency took water samples from three wells at the Celotex site and specified 31 parameters for which the samples would be tested. Approximately two years earlier, the Agency identified Kenneth P. Bechely and Monte N. Nienkerk as two of their expert witnesses. Bechely was manager of the Agency's field operations in Will County and had taken water samples from the Celotex site and from nearby monitoring well sites, including sites at the Joliet Army Ammunition Plant. Bechely's initial deposition was taken in October 1984 and was scheduled to be continued on November 19, 1984. Bechely did not appear for the continued deposition and, following numerous failures to appear and cancellations, his deposition was finally scheduled for August 21, 1985.

During his deposition in August 1985, Bechely disclosed that the Agency had monitoring sites near the Celotex site and that monitoring well data existed in the Agency's files. He refused to identify the specific sites or disclose which of those sites had monitoring data. Celotex filed a motion to compel Bechely to answer these questions. By hearing officer order dated September 16, 1985, Bechely was ordered to answer. The Agency and Celotex agreed that Bechely's deposition, wherein he would have to answer the questions, would be on October 15, 1985, but the deposition was cancelled by the Agency. In the ensuing six months, the record reveals that numerous deposition dates were scheduled and cancelled by the Agency. By order of the hearing officer following a public hearing on March 20, 1986, Bechely was ordered to be deposed on April 16, 1986. The Agency again cancelled the deposition and no substitute date was offered by the Agency.

By an order dated April 4, 1986, the hearing officer ordered the agency to produce witness Monte Nienkerk, a groundwater consultant to the Agency, for deposition on either April 25, 1986, or May 1, 1986. The Agency was ordered to respond to the hearing officer by April 11, 1986, as to which date would be scheduled for Nienkerk's deposition. The Agency did not respond as ordered and letters from Celotex counsel to Agency counsel failed to produce any deposition dates. On April 18, 1986, Celotex sought sanctions against the Agency for failure to produce its expert witnesses, Bechely and Nienkerk, for depositions.

Following Celotex' discovery that the Agency possessed documentation concerning water samples taken from monitoring wells at or nearby the Celotex site, Celotex sought production from the Agency of those documents. The Agency resisted production of the documents, contending they were irrelevant. By hearing officer order entered in October 1985, the Agency was ordered to produce the documents. The Agency then appealed the hearing officer's order to the Board. The Board upheld the hearing officer's order, but the Agency failed to produce the documents. Celotex made a second request to the hearing officer that the Agency be ordered to comply.

By order dated November 11, 1985, the hearing officer directed the Agency to identify the closest monitoring well sites to the Celotex site and to allow Celotex to select three sites for which documentation would be produced. Following the hearing officer's order, the Agency again resisted production of the documents and filed a second appeal to the Board. Their appeal was again rejected. The Agency thereafter was found by the hearing officer to have failed to respond to Celotex' letter requests to provide information for selection of the sites for which documents would be produced.

On April 3, 1986, the Agency offered to make the documents available to Celotex for inspection at their Maywood office during the week of April 7 through April 11, 1986. The Agency agreed to an inspection of the documents on April 10, but on April 9 the agency cancelled the inspection, contending their files were incomplete. The Agency refused Celotex' offer to inspect those files on hand and stated that the documents would have to be inspected in Springfield. Celotex thereafter ...


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