ILLINOIS POLLUTION CONTROL BOARD

December

5,

1986

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

)

Complainant,

v.

)

PCB 79—145

THE CELOTEX CORPORATION

AND

PHILIP CAREY COMPANY,

)

Respondents.

ORDER OF THE BOARD

(by

3.

D. Dumelle):

The Board sua sponte has determined that the most

appropriate action

to be

taken at this juncture in the proceeding

is to dismiss with prejudice Counts

I,

II, III and V of the

Complaint as they relate to the Celotex Corporation

(Celotex).

The reasons for the Board’s action at this time can best be

explained by

a summary of the course this proceeding has taken

since its filing

in July,

1979.

The complaint was filed on July 24,

1979 by the Attorney

General William 3. Scott on behalf of the Illinois Environmental

Protection Agenpy

(Agency) against Celotex and the Philip Carey

Company.

The Agency alleged that respondents had violated

various provisions of

the Act, Board regulations and other

environmental regulations then in effect at respondents’ Will

County landfill.

Discovery was initiated by respondent Celotex on August 30,

1979 which continued through the end

of 1979 and into the

beginning

of 1980.

During this time,

the Agency and Celotex

filed various discovery motions.

In addition, the Hearing

Officer issued orders and set

a pre—hearing conference.

The

Board by Order dated April 3,

1980 imposed sanctions against

Celotex for failure to comply with the Hearing Officer’s Order

which directed Celotex to answer specific interrogatories filed

by the Agency.

The Board

barred Celotex from introducing

evidence,

including witnesses and documents,

at hearing regarding

facts relevant to any paragraph of the complaint to which answers

of the specific interrogatories were material.

Illinois

Environmental Protection Agency

v. Celotex Corporation and Philip

Carey Company, 38 PCB 29,

(sanctions affirmed by the Board on May

1,

1980,

38 PCB 149).

Later,

the Board admonished Celotex

to

proceed expeditiously according

to the Board’s May 1, 1980

Order.

Celotex,

38 PCB 371.

74-149

---

—2—

Discovery continued with additional motions being

filed.

The Board issued an Order on July 10, 1980 which ordered the

parties to present the Hearing Officer and the Board with

statements listing what discovery each party needs

to obtain in

order to proceed with hearing.

The Board noted that this action

was necessary at least in part because it appeared to the Board

that the discovery process had degenerated to bickering and

uncooperative attitudes between the parties.

Celotex,

39 PCB 23.

By Order dated October

14, 1982,

the Board noted no activity

in this proceeding

since late 1980.

In response to the Clerk’s

inquiry concerning

a hearing date, Celotex stated that further

discovery was needed

in order to prepare for hearing.

The Board

ordered the parties to submit final discovery requests to the

Hearing Officer within thirty days of the date of the Order.

In

addition,

the Board stated,

“after

reviewing the history of

this action the Board finds it necessary to caution the parties

that purposeful delay for its own sake of resolution of this

matter will subject the responsible party to sanctions.”

Celotex,

49 PCB 129.

On July 19,

1984,

the Board issued another order which noted

no activity in this proceeding since late 1982.

The Board stated

that if no hearing was scheduled within thirty days and held

within sixty days of the date of that Order,

this case would be

subject to dismissal.

Celotex, 59 PCB 11.

This Order was

modified on August 22,

1984 pursuant

to a joint motion by the

parties.

The Board noted

that this case was filed

in 1979 and

that

it was now 1984 and no hearing had been scheduled.

Again,

the Board ordered that hearing be scheduled within thirty days

and held within sixty days or this matter would be subject to

dismissal.

Celotex, 59 PCB 365.

By Order dated October

12, 1984,

the Board granted Celotex’s

motion to continue hearing.

In that Order,

the Board commented

that this case has proceeded at an inexcusably slow pace.

Celotex,

60 PCB 227.

Two weeks later,

the Board denied Celotex’s

motion

to set aside the sanction order

issued by the Board on

April 3, 1980.

This motion was filed four years after

that Order

was issued.

In an Order dated February 7, 1985,

the Board, after denying

a Celotex motion for continuance of hearing, noted that this case

was six years old and the Board intended that it proceed

expeditiously.

Celotex,

62 PCB 493.

Later,

in an Order

disposing of various discovery motions,

the Board observed that

this proceeding was filed

in 1979 and that the intervening six

years had provided ample opportunity for the parties

to

diligently pursue discovery.

Celotex, PCB 79—145, October

24,

1985.

74-150

---

—3—

In early 1986, Celotex filed

a motion for sanctions against

the Agency,

the basis

for which was that the Agency had not

supplied Celotex with the information required by a Hearing

Officer Order.

The Board granted Celotex’s motion on April

24,

1986 and ordered the parties

to file briefs on the appropriate

sanctions to impose.

By Order dated May 9,

1986,

the Board

postponed ruling on the nature of the sanctions to be imposed

pending

a recommendation by the Hearing Officer.

In that Order,

the Board expressed its frustration concerning the parties

actions during discovery by stating, “this

pattern of sluggish

response

to, and/or disregarding of,

Hearing Officer Orders and

repeated and sometimes abrupt cancellation of, or non—attendance

at, deposition sessions

is unacceptable

.

*

.“

Celotex, PCB 79—

145, May 9,

1986.

The Board imposed sanctions on the Agency by Order dated

July 2,

1986.

The Board determined that the appropriate

sanctions were to strike Count IV of

the Complaint and bar

assertions of any and all groundwater claims

in conjunction with

any of

the remaining counts in the complaint.

Celotex, PCB 79—

145, July 2, 1986.

On September

5, 1986,

the Agency filed an application for

substitution of attorney which the Board granted.

However,

the

Board stated that

it has repeatedly expressed

to both parties

throughout this long proceeding its desire to see this case

concluded.

Celotex, PCB 79—145, September

11, 1986.

In response to the imposition of sanctions,

the Agency filed

a Motion

to Dismiss with Leave

to Reinstate Counts

I, II, III and

V on September 24,

1986 which

the Board denied as inappropriate

given

the circumstances,

including the fact that 21 hearings had

been held.

Celotex, PCB 79—145, October

9,

1986.

This summary aptly demonstrates the dilatory action of both

parties to this proceeding.

Discovery in this action has not

been completed although 21 hearings have been held.

It

is

evident

to the Board and to anyone who examines the twenty—five

page Board docket sheet that an end

to this proceeding

is

difficult,

if not impossible,

to predict.

The Board has been

frustrated

in its attempts to move this case along by the

incessant stream of motions being

filed, and on several occasions

has cautioned the parties about delay in this proceeding.

Recent examples

of delay include an Agency motion to amend

the complaint, filed on October

14,

1986, and an Agency motion to

replace the Hearing Officer, filed on October

21,

1986.

The

Board notes that

if it were to grant the Agency motion to amend

the complaint which seeks to remove the remaining counts,

then

the Board would

be effectively dismissing

the remaining counts of

the complaint without prejudice.

The Board denied such a motion

by Order

dated October

9,

1986.

The Agency’s motion to replace

74-151

---

—4—

the Hearing Officer misconstrues the role of hearing officers

in

Board proceedings.

Hearing officers neither decide

the case nor

make any findings of fact or conclusions of law.

Rather, Hearing

Officers ensure that the case proceeds expeditiously and that an

orderly record

is developed throughout

the proceeding for

eventual decision by the Board.

A request to change Hearing

Officers this late in the proceeding

after twenty—one hearings

have been held would only result in more delay in this proceeding

which the Board cannot condone.

The Board also notes that the

Agency requests that if the Board does not replace the Hearing

Officer

in this proceeding,

then it dismiss this proceeding

without prejudice as it relates to Celotex.

Again,

the Board

would like to point out that it denied such a motion on October

9,

1986.

The Board concludes that the appropriate action for the

Board

to take at this juncture in the proceeding is to dismiss

with prejudice Counts I, II, III and V of the complaint.

This

action, however, applies only to Respondent Celotex and does not

apply to respondent,

Philip Carey Company.

The Board notes that

this action should not be inconsistent with the Agency’s

expectations

in this proceeding as evidenced by the Agency’s

October 14, 1986, motion to the Hearing Officer for

a finding

that the Agency did not comply with

a Hearing Officer Order of

September 19,

1986.

In that motion,

the Agency, along with other

similar statements,

indicated that

it “held

a reasonable

expectation that Counts

I,

II, III and V of the complaint would

be dismissed either with or without prejudice.”

The Board would like to address two other motions currently

pending

in this proceeding.

On October

17, 1986, the Agency

filed a motion with the Board to clarify the sanctions imposed

in

the Board’s July 2, 1986 Order as they relate

to the other

respondent

in this proceeding,

Philip Carey Company.

Celotex

filed

a response

in opposition to this motion on October

22, 1986

and the Agency filed a motion to strike Celotex’s response on

October

27, 1986.

The Agency’s motion to clarify sanctions

as

they relate to Philip Carey Company is granted.

Also,

the

Agency’s motion

to strike Celotex’s response

in opposition to the

Agency’s motion to clarify sanctions

is granted in part.

Counsel

for Celotex has stated that he

is not representing the Philip

Carey Company.

Moreover, he has not filed an appearance on

behalf of the Philip Carey Company.

Therefore,

to the extent

that Celotex’s response in opposition to the Agency’s motion for

clarification argues the position of Philip Carey Company it

is

hereby struck.

Counsel for Celotex cannot argue the position of

Philip Carey Company.

Regarding the Agency’s motion for clarification of

sanctions,

the Board notes that the sanctions were imposed

against the Agency for failure to comply with a Hearing Officer

Discovery Order.

Celotex requested that sanctions be imposed

74-152

---

—5—

because the Agency had hampered Celotex’s ability

to complete

various discovery matters.

The Board intended that the sanctions

be imposed against the Agency for the benefit of Celotex.

The

Board did not intend that these sanctions benefit the Philip

Carey Company.

The Board concluded that Celotex had been

prejudiced by the Agency’s actions and, therefore,

imposed

sanctions.

No such prejudical effect has been asserted on behalf

of the Philip Carey Company.

In fact, Philip Carey Company has

not initiated nor participated

in any discovery in this

proceeding.

In addition,

the Board is not aware of any reliance

Philip Carey Company has placed on Celotex’s discovery

requests.

Therefore,

the Board’s July 2,

1986 sanction order

which struck Count IV of the complaint and barred the Agency from

asserting any and all groundwater claims in conjunction with any

of the remaining counts of the complaint was intended

to resolve

any prejudice Celotex experienced by the Agency’s actions and

in

no way affects the posture of the Agency’s case against the

Philip Carey Company.

The second motion

to be addressed

is the Agency’s motion to

the Hearing Officer for

a finding that the Philip Carey Company

is

in default filed on October

17,

1986.

Celotex filed its

response

in opposition on October

28,

1986.

On November

3,

1986

the Agency filed

a motion to strike Celotex’s response

in

opposition which is hereby granted.

Again, counsel

for Celotex

has stated that he does not represent the Philip Carey Company;

he has not filed an appearance on behalf of

the Philip Carey

Company;

and therefore,

he cannot argue the position of Philip

Carey Company.

Section 103.220 of the Board’s Procedural Rules provides two

bases for which

a party can be found

in default.

One of the

bases

is failure

to appear on

a date set for hearing, and the

other basis

is failure to proceed as ordered by the Board.

As

Philip Carey Company has failed

to appear at any of

the twenty—

one hearings held

in this matter,

the Board finds the Philip

Carey Company

in default.

However,

the Agency filed

a “Motion to

the Hearing Officer to Admit Self—Authenticating Documents as

Evidence and to Amend

the Complaint” on October 20, 1986.

The

motion to amend the complaint will be addressed later;

the motion

to admit self—authenticating documents

is granted.

The Board

notes that these documents cast serious doubt on the existence of

the Philip Carey Company at anytime during the time frames

alleged in

the complaint as well as at the time the complaint was

filed.

However, the Board does not have enough information

before

it to enable

it to make a decision on this

issue.

Therefore,

the Board requests that the Agency submit

a brief to

the Board on the issue of the existence of the Philip Carey

Company and the authority of the Board

to enter

a judgment

against the Philip Carey Company.

In addition,

the brief should

include arguments concerning the appropriate relief

to

be entered

against Philip Carey with relevant citations to the record.

The

74.153

---

—6—

Agency’s brief shall be due within thirty days of the date

of

this Order and may include a request by the Agency

for

a hearing

to present additional evidence regarding the allegations

in the

complaint against the Philip Carey Company.

The Agency’s motion to amend the complaint seeks to change

the name of respondent Philip Carey Company to the Jim Walter

Corporation.

However,

the Board notes that this issue

is

intertwined with the issue

of the existence of the Philip Carey

Company and should be addressed by the Agency

in its brief.

The Board hereby dismisses with prejudice Counts

I, II, III

and V of the complaint as they relate

to Respondent Celotex.

IT IS SO ORDERED.

I, Dorothy

M. Gunn,

Clerk of

the Illinois Pollution Control

Board, hereby certify that the above Order was adopted on

the

_____________

day of

~

,

1986 by a vote

of

________________

/

I

Dorothy M.’Gunn, Clerk

Illinois Pollution Control Board