ILLINOIS POLLUTION CONTROL BOARD
August 26,
1993
PEOPLE OF
THE
STATE
OF ILLINOIS,
Complainant,
v.
)
PCB 92—164
(Enforcement)
BERNIECE KERSHAW and DARWIN
DALE KERSHAW d/b/a KERSHAW
)
MOBILE HOME PARK,
)
Respondents.
ORDER OF THE BOARD
(by G.
T. Girard):
This matter comes before the Board on the May
12,
1993
motion for reconsideration
of the Board’s order of April
8,
1993
filed by respondents Berniece and Darwin Dale Kershaw.
In that
order,
the Board granted the uncontested motion for summary
judgment of the complainant,
the Attorney General,
filed on
behalf of the People of the State of Illinois.
The Board found,
as alleged in the complaint,
that the
Kershaws had violated Sections 12 and 18 of the Environmental
Protection Act,
as well as various Board regulations dealing with
water quality parameters, monitoring and permit requirements for
wastewater discharges,
and operation of a public water supply.
These violations arise out of respondents’
operation of the
Kershaw Mobile Home Park in Colona, Henry County, which serves an
estimated population of 265.
The order also assessed a penalty
of two hundred fifty thousand dollars
($250,000)
against
respondents,
noting that the maximum penalty authorized by the
Act was seven hundred sixteen million one hundred thousand
dollars
($716,100,000).
Pursuant to leave of the Board,
the Attorney General filed
its response
in opposition on August
6,
1993.
2
On August 10,
1
The
Board
regulations
involved
are
35
Ill.
Adm.
Code
304.106,
304.120(c),
304.121(a),
305.102(b),
305.103, 309.102(a),
309.104(a), 601.101.
Also involved are Agency regulations found at
35
Ill.
Adm.
Code 652.111,
653.109, and 653.118.
2
Complainant’s
time
to
respond
was
extended
during
the
pendency
of
its
unsuccessful
motion
to
disqualify
respondents’
counsel
retained
by
the
respondents
after
entry
of
the
order
granting summary judgment.
See Orders of May 27, June
17, and July
2
1993,
the Kershaws filed
a reply clarifying certain agreed
language
in complainant’s response.
The reply was accompanied by
a motion for leave
to file instanter.
The motion for leave,
which
is not opposed
by the complainant,
is hereby granted.
For the reasons stated below,
the motion for reconsideration
is hereby granted.
Upon reconsideration,
the Board reaffirms the
portion of its April
8,
1993 order which finds the Kershaws in
violations
of the Act and Board regulations
(p.
1-4).
However,
the Board reserves ruling on the balance of the order relating to
the civil penalty, costs and fees for a period of roughly 120
days.
As suggested by the complainant and agreed to by the
respondents,
this time is intended to “allow the parties an
opportunity to attempt to formulate a Stipulation and Proposal
for Settlement” concerning these
issues.
(Response,
p.
15.)
ISSUES
Used of Recycled Paper
The Kershaws assert that the Board’s order of April
8,
1993
should be “stricken”
as complainant’s motion for summary judgment
did not state that
it was filed on recycled paper as required by
35
Ill.
Adm.
Code 101.103(d).
(Motion,
par.
11.)
In response,
complainant states that,
although the required statement was
omitted from its motion, the motion was in fact submitted on
recycled paper.
Complainant has submitted two affidavits
in
support of this assertion.
(Response,
pp.
11-12
& Exh. A
& B.)
The Board finds that complainant’s motion for summary
judgment substantially complied with the requirements of 35
Ill.
Adm.
Code 101.103(d),
and declines to modify its April
8 order on
this ground.
Timeliness
of Filing
The complainant’s motion for summary judgment was filed on
February 17,
1993,
19 days prior to the hearing scheduled for
March
8,
1993.
The Kershaws assert that the motion was untimely
filed.
35
Ill.
Adm.
Code 101.244 provides for the filing of
motions for summary judgment,
and states that “sjpecific
rules
for such motions.. .are found in
35
Ill. Adm.
Code 103
(enforcement proceedings)...”.
Respondents assert that there are
no specific rules governing summary judgment in Part
103.
They
accordingly argue that the time for filing is established by
Section 101.245(a), which states “all motions preliminary to
hearing shall
be presented to the Board or the hearing officer at
11,
1993.
3
least
21 days prior to the date
of hearing, unless allowed by the
Board or the hearing officer to prevent material prejudice.”
Respondents therefore,
believe that complainant’s motion was
untimely filed,
only
19 days prior to hearing.
In response,
complainant argues that the time for filing is
established by Section 103.140 which provides
“all motions
preliminary to
a hearing shall
be presented to the Board or the
hearing officer at least
14 days prior to the date of the
hearing”.
Pursuant to this section, complainant urges that the
motion filed
19 days
in advance of hearing was timely.
The Board agrees that there are no rules
in Part 103 which
are titled “Motion for Summary Judgment” and which specifically
detail the requirements for,
and handling of, motions for summary
judgment.
However, the rule on which the Kershaws rely for their
21—day filing requirement, Section 101.241(a),
is included in 35
Ill.
Adm.
Code 101.Subpart
H.
The rule immediately preceding
Section 101.241
is Section 101.240 “Applicability”.
This rule
expressly provides that:
This Subpart applies to all Board proceedings
generally.
However,
to the extent that 35
Ill.
Adin.
Code 102 through 120 conflict with
or supplement this Subpart, that more
specific Part governs.
This rule, when read with Section 101.244 “Motion for
Summary Judgment” with its cross—reference
to 35
Ill. Adm.
Code
103,
clearly indicates the Board’s intent that the time for
filing motion for summary judgment is 14 days prior to hearing as
stated
in Section 103.140(a).
The Board accordingly finds that
complainant’s motion for summary judgment was timely filed 19
days prior to hearing.
Right to
a Public Hearing
Respondents’
final argument
is that they were not
represented by counsel prior to entry of the summary judgment
order,
that they did not understand,
or have access to, the
Board’s rules,
and that they believed that they would have
a
chance to “present their case at
a hearing”, notwithstanding the
motion for summary judgment.
(Motion, Affidavit of Darwin Dale
Kershaw.)
Counsel
for respondents asserts
that:
Respondents concede that they did not file
a
written response to complainant’s motion for
summary judgment.
§31(a)(l)
of the
Environmental Protection Act,
however,
establishes the right
of an enforcement
respondent
to
a hearing,
indicating
that
the
4
person so complained against must
“answer the
charges of such formal complaint at hearing
before the Board at
a time not
less than
21
days after the date of notice by the Board”.
Thus,
respondents’
statutory right and
obligation
is
to answer the complaint at
a
hearing
the statute does not by its terms
require
a written response.
By granting a
final Order in the absence of such hearing,
the actions
of the hearing officer and Board
may strip respondent of this fundamental
right.
Respondents,
not represented by
Counsel, understood that they would get their
opportunity to present their side of the
story at
a hearing; ~
affidavit of Darwin
Kershaw attached hereto as Exhibit
“B”.
(Motion,
par.
12.)
In response,
complainant essentially assert that the
“ignorance of the law” arguments based on facts asserted in Mr.
Kershaw’s affidavit are substantially undercut by facts asserted
in the May 17,
1993 affidavit of Board attorney Marie Tipsord.
~
This affidavit asserts that Ms. Tipsord explained the procedural
aspects of the motion for summary judgment to Mr. Kershaw by
telephone on or about March
9,
1993, and “urged him to seek
counsel and to respond to the motion”.
Ms. Tipsord also
requested the Clerk’s office to mail Mr. Kershaw a copy of the
procedural
rules to a corrected address received from Mr.
Kershaw.
The Board notes that respondents’ reply does not address the
discrepancy between the factual allegations contained in the
Kershaw and Tipsord affidavits.
The Board finds no basis to
disturb its April
8,
1993 order in the Kershaw affidavit.
As to the asserted “absolute” right to a hearing pursuant to
Section 31(a) (1)
of the Act, the complainant argues that this
section must be read
in conjunction with Section 26 of the Act
authorizing summary judgment procedures and with 35
Ill. Adm.
Code 101.244 and 103.140 implementing Section 26.
The
complainant notes that:
the fundamental purpose of summary judgment
is to promote judicial and administrative
economy, and that
if parties such as
respondents are allowed to wait until after
an adverse judgment is entered against them
before choosing to participate
in the defense
Ms. Tipsord
has
not assisted the
Board
in
its deliberations
in this matter
in
any
way since
her
recusa~
on
May
17,
1993.
5
of
their case,
then efficiency
is not served,
and the purpose of summary judgment
is
defeated.
In this case,
respondents expended
no effort to defend themselves during the
course of the proceeding and now seek to
overturn an unfavorable summary judgment
order.
(Response,
p.
9—10)
The Board notes that the hearing provision of Section
31(a) (1)
has been included
in the Act since
its inception.
The
summary judgment authorization of Section
26
is a relatively
recent amendment to that section
(P.A. 85-1048, effective January
1,
1989).
P.A.
85—1048 was specifically adopted by the
legislature to avoid the burden
to the state and to the parties
of conducting unnecessary hearings when no genuine issue of law
or fact exists.
The Board finds no absolute right
to hearing in
enforcement cases as suggested by respondents,
and finds no
reason to modify its April
8 order.
Complainant’s Offer to Engage
in Settlement Discussion Concerning
Penalty and Compliance Terms
Complainant observes that respondents ask,
in the
alternative,
for a hearing on the issue of penalty with no
reasoning or authority to support this “afterthought” request.
Complainant believes that respondents have waived any grounds for
argument concerning penalty. Lake County Trust Co.
v. Two Bar B,
Inc.,
(1192),
238 Ill. App.
3d 589,
606 N.E.
2d 258.
Without
further explanation, however, complainant:
recognizes that this may be the appropriate
time to address the issue of penalty amount
and other remedies with particular reference
to Section 42(h)
of the Act,
as suggested by
Board Member Anderson in her April
8,
1993
concurrence with the Board’s order of summary
judgment.
Complainant suggests that this may be
accomplished by engaging in discussions with
respondents about specific proposals for
correcting the violations and about an
appropriate penalty, with
a view to coming to
an agreement on one or both issues.
The
complainant has approached the respondents
with
a proposal along these
lines,
and
respondents have indicated
a willingness to
proceed
in this manner.
A Board order requiring the respondents
to
submit
to complainant,
within
30 days
of
the
?
Board’s consideration of the Motion to
Reconsider,
a detailed explanation of
respondents’ plan to correct the violations,
along
with
a realistic timetabJe and accurate
cost estimates,
and deferring
a ruling on the
Motion to Reconsider insofar as
it relates to
the penalty
issue, would allow the parties to
pursue these further discussions and
negotiations.
Complainant proposes that if an agreement can
be negotiated, the agreement would be
submitted to the Board in the form of a
Stipulation and Proposal for Settlement which
would contain
a specific schedule by which
the respondents would gain compliance with
the Act and regulations and provide a civil
penalty as warranted.
If the agreement is
not negotiated,
the parties would preserve
their rights to present evidence and
arguments to the Board regarding
a penalty.
(Response
p.
13—14)
For all of the reasons earlier expressed,
the Board is
unpersuaded by any of the Kershaws’ arguments that its April
8,
1993 order should be modified in any way.
However, the law
favors settlements.
See, Chemetco Inc.
v.
Illinois Pollution
Control Board,
140 Ill. App.3d,
283,
488 N.E.2d
639,
643
(5th
Dist.
1986); and Archer Daniels Midland
v.
Pollution control
Board,
140 Ill.App.3d 823,
489 N.E.2d 887
(3rd Dist.
1986).
The
Board will accordingly accede to the parties’ request and will
allow them an opportunity to negotiate penalty and compliance
terms.
Upon reconsideration,
the Board reaffirms that portion of
its April
8,
1993 order
(pp.
1—4) which finds the Kershaws in
violation of the Act and Board regulations.
However, the Board
reserves ruling on the balance of the order relating to the civil
penalty, costs,
and fees.
On or before October 15,
1993,
the respondents shall submit
to complainant
a proposed compliance plan,
including timetable
and costs estimates.
On or before December
6,
1993 the parties
shall submit to the Board
a proposal for settlement
of penalty
issues,
a status report,
or any other appropriate pleading
suggesting the appropriate means for final disposition of this
case.
7
IT
IS SO ORDERED.
I,
Dorothy
N.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby cert~ifythat the above order was adopted on the
~
day of
____________________
,
1993,
by
a vote of
(~
/T~
Dorothy M.~unn,
Clerk
Illinois Pollution Control Board