ILLINOIS POLLUTION CONTROL BOARD
October 16, 1997
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
LLOYD WIEMANN, d/b/a WIEMANN ICE
AND FUEL,
Respondent.
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LLOYD WIEMANN, d/b/a WIEMANN ICE
AND FUEL,
Cross-complainant,
v.
TEXACO REFINING and MARKETING,
INC., and EUGENE and CHERYL
HALBROOKS,
Cross-respondents.
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PCB 93-191
(Enforcement - UST)
PCB 93-191
(Enforcement - UST)
(Cross-Claim)
ORDER OF THE BOARD (by C.A. Manning):
This matter comes before the Board on a motion for sanctions, motion to strike
appearance, motion to strike an objection to the motion for sanctions, and motion to
clarify caption. On June 16, 1997, Texaco Refining and Marketing, Inc. (TRMI) filed
a motion for sanctions against Lloyd Wiemann, d/b/a Wiemann Ice and Fuel, Inc.
(Wiemann). On August 4, 1997, Wiemann objected to the motion for sanctions and
concurrently requested that the Board stay the proceedings or allow Wiemann 14 days
to respond to TRMI’s discovery requests. On August 6, 1997, TRMI filed a motion to
strike the appearance of Wiemann’s counsel, and also filed a motion to strike or deny
Wiemann’s objection. On September 5, 1997, the Illinois Attorney General,
representing the People of the State of Illinois on behalf of the Illinois Environmental
Protection Agency (complainant), filed a motion to clarify caption.
For the following reasons, the Board denies the motion for sanctions and the
motion to strike the appearance; the Board grants the motion to strike the objection to
the motion for sanctions and the motion to clarify the caption.
2
ARGUMENTS
In its motion for sanctions (Mot. for Sanc.), TRMI states that pursuant to a
February 18, 1997 hearing officer order for the schedule of discovery, written
discovery must have been served before March 12, 1997, and all responses to such
written discovery must have been served on or before April 11, 1997. TRMI argues
that, on or about the date the responses were due, Wiemann’s attorneys of record, from
the law firm of Hodge & Dwyer, filed a notice of a withdrawal and a motion seeking
an extension of time for Wiemann to respond to discovery. Mot. for Sanc. at 2. By
hearing officer order entered on May 5, 1997, Wiemann was granted additional time to
respond to the discovery through and including May 30, 1997. Wiemann did not
respond to the discovery. Mot. for Sanc. at 2. TRMI asserts that sanctions should be
entered against Wiemann because Wiemann has failed to respond to TRMI’s discovery
requests. Mot. for Sanc. at 2-3.
TRMI requests that Wiemann be barred from filing any further pleadings and
barred from maintaining any claim or defense at hearing which would relate to TRMI
as being the owner or operator responsible for any release at the site in question. Mot.
for Sanc. at 3. TRMI further requests that appropriate fees be assessed against
Wiemann for causing TRMI to bring the motion for sanctions and asks that the Board
impose any further just and appropriate sanctions against Wiemann. Mot. for Sanc. at
3.
On August 4, 1997, Wiemann filed an objection (Obj.) to the motion for
sanctions and also requested an extension of time to respond to TRMI’s discovery
requests. In the objection, Wiemann asserts that the law firm of Hodge & Dwyer has
re-entered its appearance as his counsel of record. Obj. at 3. Wiemann’s counsel
insists that it has received full assurance from Wiemann that he will comply with any of
TRMI’s discovery requests. Obj. at 3. Wiemann argues that a reasonable sanction in
this matter would be to stay the proceedings until Wiemann satisfies any of TRMI’s
outstanding discovery requests, or, alternatively, to allow Wiemann 14 days from the
date of the Board’s ruling on the motion for sanctions to respond to TRMI’s discovery
requests. Obj. at 3. Wiemann argues that TRMI has not been prejudiced in its defense
since it has not yet answered Wiemann’s discovery requests, nor advanced the litigation
any further.
1
TRMI subsequently filed a motion to strike Wiemann’s objection (Mot. to Str.)
because it was not timely filed in accordance with Sections 101.241 and 103.140 of the
1
By hearing officer order of June 30, 1997, TRMI was given an extension of time to
respond to Wiemann’s discovery requests until the Board ruled on the motion for
sanctions. Additionally, by hearing officer order of July 23, 1997, Eugene and Cheryl
Halbrooks were given an extension to respond to any discovery requests until after the
Board ruled on the motion for sanctions.
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Board’s procedural rules (35 Ill. Adm. Code 101.241, 103.140). Mot. to Str. at 1.
TRMI argues that Wiemann never sought leave to file a response, but merely filed an
objection on July 31, 1997, which was over one month late. Mot. to Str. at 2. TRMI
asserts that, according to the Board’s procedural rules, Wiemann’s failure to respond to
the motion for sanctions within the requisite time period constitutes a waiver of any
objection to the granting of the motion. See 35 Ill. Adm. Code 101.241, 103.140.
TRMI has also filed a motion to strike the appearance of Wiemann’s counsel,
Hodge & Dwyer (Mot. to Str. App.). Specifically, TRMI argues that because Hodge
& Dwyer has withdrawn its appearance twice and refiled its appearance three times, the
proceedings in this matter have been delayed. TRMI asserts that Wiemann should not
be allowed to manipulate the discovery and trial process of a case by hiring and firing
its counsel. Mot. to Str. App. at 2. TRMI therefore requests that the Board strike
Hodge & Dwyer’s appearance and order any other further just and reasonable relief.
Hodge & Dwyer has not responded to TRMI’s motion to strike the appearance.
Finally, complainant has requested that the caption be amended to reflect the
cross-claim pursued by Wiemann against TRMI and Eugene and Cheryl Halbrooks.
TRMI has no objection to this motion. The Board accordingly grants the motion. The
caption in this order has been changed to properly reflect the proceedings in this
matter. All future pleadings should likewise reflect this revised caption.
DISCUSSION
Prior to addressing the sanctions issue, the Board must first determine whether
the pleadings were timely filed in accordance with the timeframe prescribed by the
Board’s procedural rules. Sections 101.241 and 103.140 provide that within seven
days after service of a written motion, a party may file a response to the motion. If no
response is filed, the party is deemed to have waived objection to the granting of the
motion. 35 Ill. Adm. Code 101.241 and 103.140. However, such waiver of objection
does not bind the Board in the decision of the motion. 35 Ill. Adm. Code 101.241 and
103.140.
As previously discussed, TRMI filed its motion for sanctions on June 16, 1997;
Wiemann did not respond to the motion for sanctions until it objected to such motion
on August 4, 1997. Wiemann did not request leave to file instanter its objection and
apparently presumed that such objection could be filed without the Board’s permission
several weeks after the response time had elapsed. As a result of this untimely filing
and failure to request leave to file an objection instanter, the Board grants TRMI’s
motion to strike Wiemann’s objection to the motion for sanctions from the record.
As to the issue of sanctions, the Board must determine whether awarding
sanctions under the circumstances of this case is appropriate. The Board has sanction
authority pursuant to Section 101.280. Section 101.280(a) provides that “[i]f a party
or any person unreasonably refuses to comply with any provision of 35 Ill. Adm. Code
4
101 through 120 or fails to comply with any order entered by the Board or the hearing
officer, . . . the Board will order sanctions.” 35 Ill. Adm. Code 101.280(a); see also
35 Ill. Adm. Code 101.281 (sanctions for abuse of discovery procedures). In deciding
what sanctions are appropriate, the Board may consider factors including, but not
limited to, the relative severity of the refusal or failure to comply, the past history of
the proceeding, and the degree to which the proceeding has been delayed or prejudiced
by the alleged abuses. 35 Ill. Adm. Code 101.280(b).
The Board does not agree with TRMI that Wiemann’s failure to respond to the
discovery is sanctionable behavior. As the Board stated in International Union,
et al
.
v. Caterpillar, Inc. (August 1, 1996), PCB 94-240, slip op. at 5, aff. (International
Union,
et al
. v. IPCB, No. 3-96-0931 (3rd Dist. 1997) (unpublished order under
Illinois Supreme Court Rule 23)):
In determining whether sanctions are warranted, we are to consider
whether a hearing officer order or Board order was violated and we also
may consider whether the complained-of actions demonstrate a deliberate
and pronounced disregard for our jurisdiction’s rules. (See Modine
Manufacturing Company v. Pollution Control Board
(2nd Dist. 1989)
192 Ill. App. 3d 511, 548 N.E. 2d 1145 and Valdivia v. Chicago and
North Western Transportation Company
,
(1st Dist. 1980) 87 Ill. App.
3d 1123, 409 N.E. 2d 457.) While we certainly look to the severity of
the conduct, we note that the goal of the discovery sanction is to
promote discovery, and not necessarily to punish. (IEPA v. Celotex
Corp
.
(3rd Dist. 1988) 168 Ill. App. 3d 592, 522 N.E. 2d 888.) In the
past we have weighed all of these factors and upon appellate court
remand, we monetarily sanctioned a party for refusal to comply with the
two Board orders. (Grigoleit Company v. Illinois Pollution Control
Board (4th Dist. 1993) 245 Ill. App. 3d 337, 613 N.E. 2d 371.)
When Wiemann’s counsel withdrew its appearance on April 11, 1997, it requested an
extension for Wiemann to respond to the discovery up through and including May 30,
1997. Among other things, Wiemann apparently failed to comply with the discovery
due date as a result of his search for new counsel (see Mot. to Str. App. at 3, fn 1);
however, there is no evidence in this record of any bad faith in this noncompliance.
Further, Wiemann has re-hired counsel who is familiar with the facts and circumstances
of the case. The motion for sanctions is denied and the Board directs that this matter
expeditiously proceed to hearing without any further interruptions or complications.
Next, we address the issue of whether the Board should strike the re-entry of
appearance of Wiemann’s counsel, Hodge & Dwyer. TRMI argues that the firm of
Hodge & Dwyer has, on numerous occasions, withdrawn and refiled its appearance
causing undue delay in these proceedings. Mot. to Str. App. at 2. This record does
not contain reasons for these actions and the Board will not impute any bad faith
intention on the part of Hodge & Dwyer or Wiemann to disrupt the instant proceedings.
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The Board notes, however, that the effect of these actions has been a delay of the
proceeding. The Board will not tolerate any further delays in this proceeding. The
motion to strike the appearance of Hodge & Dwyer is denied. If necessary in the
future, the Board will use its sanctioning authority to ensure that this matter proceeds in
an expeditious manner.
To ensure that discovery proceeds in a timely manner, the Board orders
Wiemann to file its responses to TRMI’s discovery requests within 14 days of the date
of this order, on or before October 31, 1997. If Wiemann fails to comply with this
timeframe, the Board will, on its own motion, dismiss the cross-claim against TRMI
and the Halbrooks’. Any additional discovery orders will be issued as necessary by the
hearing officer.
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 16th day of October 1997, by a vote of
7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
