ILLINOIS POLLUTION CONTROL BOARD
March 22,
1990
CENTRALIA ENVIRONMENTAL
SERVICES,
INC.,
)
Petitioner,
V.
)
PCB 89—170
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD
(by N. Nardulli):
This matter comes before the Board on a Motion for Extension
of
Time
to
File
Brief,
received March
20,
1990,
by
petitioner
Centralia
Environmental
Services,
Inc. (“CESI”)
and
a
Motion
of
Respondent
Illinois
Environmental
Protection
Agency
to
Exclude
petitioner’s Brief and to Decide Proceeding Upon Existing Record
filed the same day by respondent Illinois Environmental Protection
Agency
(“Agency”).
CESI has also provided an unqualified waiver
of the decision deadline until April 26,
1990.
By Order of the Hearing Officer, simultaneous briefs were due
to
be
filed
no
later
than January
16,
1990.
While
the Agency
timely filed its brief,
CESI has yet to file its brief although it
had filed a waiver of the decision deadline to March 31,
1990.
On
March 8,
1990, the Board entered an Order directing CESI to explain
the delay and to
file. a motion for extension of time to file
its
brief.
CESI timely filed its motion.
In
its motion,
CESI states
that
it has been
unable
to
timely
file
its
brief
because
the
transcripts were not prepared.
According to CESI,
it “was advised
on February 20,
1990 that the final
transcript was ready to ship
and
...
are)
1,154
pages
in length.”
CESI did not receive the
transcript
until March
12,
1990.
CESI also states that counsel
will begin a jury trial on March 22, 1990 which is expected to take
three weeks
to conclude.
CESI states that it has not,
and will
not,
read the Agency’s brief.
On this basis,
CESI requests
an
extension until April
19, 1990 to file its brief.
By
it
motion,
the Agency
requests
that
the
Board
exclude
CESI’s brief and decide this
case on the basis
of the existing
record.
According
to
the
Agency,
“the
five-part
hearing
transcripts have been available
in segments between January
23,
1990 and February 20, 1990.”
The Agency asserts that it would be
highly prejudiced if the Board allowed CESI to file its brief at
this
late
date
because
the
briefs
were
intended
to
be
filed
simultaneously.
The Agency states
that CESI will have the unfair
109—547
advantage
of
refuting the Agency’s
legal
arguments as
well
as
referencing the transcripts
in
its
brief,
which
the Agency was
unable to do because it timely filed its brief.
Initially,
the Board
notes
that,
by deciding these
two
motions at this time,
it has not allowed either party to respond
to the other party’s motion.
The Board
is entering its decision
on
these motions
at
this
time because
of
the time
constraints
imposed upon the Board for rendering its decision on the merits in
this permit appeal.
Where undue delay would result, the Board may
rule
upon
a
motion
prior
to
the
expiration
of
the
seven—day
response period.
(35 Ill. Adm. Code 101.241(b).)
The Board will first address the Agency’s motion.
The Board
agrees in certain respects with the Agency and
is concerned that
CESI may have secured an unfair advantage over the Agency by not
submitting it brief when simultaneously due.
However, the Agency-
requested sanction
of denying
CESI
the right
to
file
its brief
would
leave
the
Board
with the obligation
to
decide
this case
without the benefit of CESI’s legal arguments.
A requirement that
the Board correctly decide this case without the informed
legal
arguments of
one of the parties would punish the Board,
not the
late filing party.
(See, National Environmental Services Corp.
v.
IEPA, PCB 89-129 (March 16, 1990).)
Therefore, the Agency’s motion
is denied.
Further, this case does not present the severity of conduct
which would justify severe sanctions such as that imposed by the
Board
in
Modine
Manufacturing
Co.
v.
PCB
and
upheld
by
the
appellate court.
(548 N.E.2d
1145. (2d Dist.
1990).)
In Modine,
the court stated that the imposition of severe sanctions such as
dismissal
would
be
appropriate
“only
in
those
cases
where
the
actions of a party show deliberate,
contumacious, or unwarranted
disregard of the Board’s
authority.”
In the instant case, unlike
Modine,
CESI
has
not
continually
ignored
Board
directives.
Therefore,
this
case differs
from Modine
and does
not warrant
dismissal.
The Board now addresses CESI’s motion.
While it appears that
there was a delay in the transcribing of the report of proceedings,
the Board questions CESI’s assertion that it could not obtain the
transcripts from the court reporter until March 12, 1990 when they
were available and “ready to ship” on February 20,
1990.
Exhibit
E, an invoice statement from the court reporter, attached to CESI’s
motion,
shows that the transcripts were not paid for until March
3,
1990.
Perhaps
the
delay
in
payment explains
the
delay
in
receiving the
transcripts.
Most
disturbing,
however,
is
CESI’s
failure to file a motion for extension of time when it became aware
that
it
would
not
be
able
to
timely
complete
its
brief.
Apparently, CESI operated under the assumption that the filing of
a waiver of decision dead1~neobviated the need t.~ file a motion
for extension of time to file its brief.
The Boaid seeks to make
clear that this assumption is incorrect.
CESI’s failure to timely
file a motion for extension of time illustrates a disregard for the
Board’s obligation to manage its docket.
109-548
Based upon the foregoing, the Board denies CESI’s motion for
extension of time to file its brief no later than April
19,
1990.
However, the Board grants CESI an extension until April
2,
1990 to
file its brief.
To comply with this Order,
CESI’s brief must be
received by the Board and the Agency no later than 4:30 p.m.
on
April
2,
1990.
The Agency
is given leave
to file
a reply brief
which must be received by the Board no later than April
11,
1990.
No other briefs shall be filed.
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi y that the above Order was adopted on the
~
day of
___________,
1990 by a vote of
10
/~L
Dorothy M. ~inn,
Clerk
Illinois PoJL’lution Control Board
109--549