ILLINOIS POLLUTION CONTROL BOARD
February 3,
1994
GRIGOLEIT COMPANY,
Petitioner,
)
)
v.
)
PCB 89—184
)
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by C.A. Manning):
On December 15,
1993,
the Grigoleit Company (“Grigoleit”) by
and through one
of
its attorneys,
A.
James
Shafter
of
KEHART,
SHAFTER, HUGHES & WEBBER, P.C.1, filed a
Motion for Order Assessing
Sanctions
and Remandment
for
Issuance
of
Air Operating
Permit
without Special Conditions
(“Motion for Order”). Grigoleit filed
the Motion for Order pursuant to the Appellate Court of Illinois,
Fourth District’s final opinion and order remanding this case to
the Board
to determine an award of attorneys fees to be paid to
Grigoleit as a sanction.
(Gricioleit ComPany v.
Illinois Pollution
Control Board and Illinois Environmental Protection Agency,
(4th
Dist.
1993)
245
Ill. App.3d
337,
613 N.E.2d
371,
arn~ealdenied
(1993)
152 Ill.2d 558, 622 N.E.2d 1205.)
The appellate court held:
While we recognize the great discretion granted the
Board
in
ruling
upon
sanctions,
we
are
compelled to
conclude that granting Grigoleit a renewal permit which
it was apparently entitled to anyway, was as a matter of
law,
an
insufficient
sanction
for
the
Agency’s
unnecessary stubborn defiance of the Board.
We fully
agree with the Board’s rejection of Grigoleit’s request
that a collateral complaint against Grigoleit should be
dismissed as a sanction.
However, Grigoleit is entitled
to some expense reimbursement as a sanction.
Accordingly, we affirm all aspects of the December
6,
1991sic.,
Board order on judicial review except to
the extent
it refuses an award
of attorneys fees.
We
reverse that portion of the order and remand to the Board
with
directions
to
award
Grigoleit
attorney
fees
in
regard
to
the
proceeding
after
the
second
remand.
(Gripoleit,
613 N.E.2d at 351.)
‘Grigoleit
is
represented
by
A.
James
Shafter
of
KEHART,
SHAFTER, HUGHES
& WEBBER, P.C. in PCB 89-184 and by Roy M. Harsch,
of GARDNER, CARTON
&
DOUGLAS
in PCB 92-23.
2
Thus,
the principal issue on remand is for the Board to ascertain
whether the sanctions amount requested by Grigoleit is reasonable
(35 Ill. Adm. Code Subpart 101.280) and appropriate pursuant to the
appellate court’s remand.
Having received an extension of time by Board order
dated
January
6,
1994,
on January 18,
1994, the Illinois Environmental
Protection Agency
(“Agency”)
by and through its attorney,
Sharon
Davis, filed a response to the Motion for Order pursuant to 35 Ill.
Adin Code 101.241.
Inter alia, the response raises factual issues
regarding the amount of Grigoleit’s request for attorney fees and
expenses.
On January 26,
1994, Grigoleit filed a Motion
for Leave
to
File Reply and a Reply to Response to Motion for Order Assessing
Sanctions
and
Reinandment
for
Issuance
of
Air Operating
Permit
without Special Conditions.
We hereby grant Grigoleit’s Motion for
Leave to File Reply.
However, we find the reply unresponsive to
the factual questions the Agency requested Grigoleit address. The
Board agrees the information by the Agency is also necessary for
our
review.
Therefore,
Grigoleit
shall
submit
additional
information and/or documentation to the Board on or before February
24,
1994 clarifying the following Agency concerns:
1.
“21.
..
.It is also very difficult to distinguish the
services and fees associated with this proceeding,
PCB
89—184, from those associated with PCB 92—23.”
(Response,
at 7.)
2.
“22. In the fee documentation provided for the law
firm of Kehart,
Shafter,
Hughes and Weber,
P.C.,
it
is
often
impossible to distinguish the services and fees
associated with this proceeding, PCB 89-184, from those
associated with PCB 92—23.”
(Response,
at 7.)
3.
“23.
In
the
Affidavit
of
Attorney’s
Fees
and
Expenses submitted by the law firm of Gardner, Carton and
Douglas, the Affiant states that entries relating to the
enforcement, trade secret and other matters not relating
to the air pollution issue were deleted from the services
and
fees
for which award
sought.
However,
there
are
various entries listed that include these other matters.
For many entries,
it is impossible to determine whether
all or any portion of the services listed and associated
fees are related to this proceeding, PCB 89-184, or even
related to any air issue.
(See entries for December 23,
1992,
February
9,
1993,
July
14,
1993,
September
14,
1993,
for example).”
(Response,
at 7—8.)
In addition to requesting an award of sanctions, the Grigoleit
Motion For Order also asks.that the Board enter an order remanding
this issue to the Agency to:
3
Issue to THE GRIGOLEIT COMPANY its air operating permit,
without special conditions, effective until December 6,
1996,
and further
requiring the Agency
to
issue
said
permit within thirty
(30) calendar days after execution
of an appropriate order by the ILLINOIS POLLUTION CONTROL
BOARD.
(Gricioleit Motion for Order, at 11.)
The Fourth District affirmed the Board’s order of December 6,
1991
insofar
as
the
Board
directed the Agency
to
issue
Grigoleit’s
operating permit
(Gricioleit,
613 N.E.2d at 345 and 351)
and on
November 24,
1993, the mandate issued.
As of the date of the last
Grigoleit
filing
(January
26,
1994),
an
air
operating
permit
without special conditions has not yet been issued.
The Agency
response only states
that,
“As noted
in the Agency’s Response to
Petitioner’s Objection to Motion
for Extension of Time to File
Response,
the Agency fully intends to
issue to the Petitioner
a
permit that fully complies with the directive of the 4th District.”
Accordingly,
because the Agency’s task at this juncture,
is
one
of merely issuing the permit as directed
in our December
6,
1991 order, Grigoleit’s Motion for Order is granted. Within 30 days
of the entry
of this
order,
the Agency
shall
issue
the permit
without
any
special
conditions
other
than
those
automatically
imposed by law.
We
hereby
reserve
jurisdiction
to
resolve
the
remaining
requests
for
relief
in
the
Motion
for
Order
concerning
the
sanctions amount and Grigoleit’s filing of a supplemental sanctions
motion.
IT IS SO ORDERED.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, her by certify that the above order was adopted on the-~-~--
day of
_______________,
1994, by a vote of
7-~)
U
~—~DorothyN.
Gu~n, Clerk
Illinois Poli~tionControl Board