ILLINOIS POLLUTION CONTROL BOARD
    March
    16, 1990
    NATIONAL ENVIRONMENTAL
    )
    SERVICES CORPORATION,
    )
    Petitioner,
    V.
    )
    PCB 89—129
    (Permit Appeal)
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    ORDER OF THE BOARD
    (by
    B.
    Forcade):
    This matter comes before the Board on
    a motion for extension
    of time filed on February 26,
    1990 by National Environmental
    Services Corporation
    (“NESC”)
    in connection with
    a petition filed
    by NESC to contest permit conditions imposed by the Illinois
    Environmental Protection Agency
    (“Agency~’)
    .
    Hearing was held ~
    December 13,
    1989,
    at which time a briefing schedule was entered
    requiring that the parties’ briefs be filed by January
    19,
    1990
    and that reply briefs be filed by February
    2,
    1990.
    The Agency
    filed its brief on January
    19,
    1990.
    NESC failed to file its
    brief on January
    19, and failed to file a reply to the Agency’s
    brief on or before February
    2.
    On February 22,
    1990 the Board
    issued an order stating that the Board would dismiss this matter
    on March
    8,
    1990 unless NESC filed appropriate and supportable
    documents by
    March
    6,
    1990.
    The motion filed by NESC on February 26,
    1990 requests an
    extension of time until March 31,
    1990 to file its brief.
    In
    support of its request NESC asserts that
    it had been unable to
    obtain a copy of the transcript of the hearing.
    NESC also
    provided an unqualified waiver of the decision deadline until
    120
    days after the current deadline of March 31,
    1990.
    The Agency filed
    its response to petitioner’s motion for
    extension of time on March
    2,
    1990,
    requesting that the Board
    deny the motion for extension of time.
    The Agency protests that
    NESC has not supported its claim concerning the transcript with
    any documents,
    correspondence or affidavits and that NESC has not
    shown that it made
    a diligent or good faith effort to obtain the
    transcript.
    The Agency states that it would be unfairly
    prejudiced
    if NESC
    is permitted to file its brief
    at this late
    time, having had the benefit of all of the Agency’s legal
    theories and arguments, when in fact briefs were due
    simultaneously to prevent any undue advantage.
    1fl~--443
    2
    The Board agrees in certain respects with the Agency that
    NESC has submitted an inadequate basis for its motion for
    extension of time.
    The Board also
    is concerned that NESC may
    have secured an unfair advantage over the Agency by not
    submitting its briefs when simultaneously due.
    However, the
    Agency requested sanction
    (denying NESC the right to file
    a
    brief) would still leave the Board with the obligation to decide
    the case, but without the benefit of legal argument from one of
    the parties.
    A requirement that the Board correctly decide the
    case without benefit of informed argument by the parties would
    punish the Board,
    not the late filing party.
    Further, this case does not present the severity of conduct
    which would justify severe sanctions.
    In Modine Manufacturing
    Company v.
    PCB,
    548 N.E.2d 1145,
    Ill.
    App.
    3d
    ,
    139 Ill.
    Dec.
    589
    (Second District,
    1990), the court found that the Board
    could impose severe sanctions such as dismissal,
    “.
    .
    .only in
    those cases where the actions of
    a party show deliberate,
    contumacious,
    or unwarranted disregard of the
    Board’s
    authority.”
    Here, while there was an untimely late filing by
    NESC,
    such filing was made by NESC’s affirmative conduct (without
    ignoring repeated requests from the Board) and was accompanied by
    a motion for extension of time.
    In this sense,
    this case
    presents a substantially different set of facts from those
    presented in Modine.
    Since the decision deadline has been substantially extended
    by NESC,
    the Board will grant the motion for extension of time to
    file its brief.
    NESC’s brief will be due on March
    30,
    1990. The
    Agency is given leave to file a reply brief on or before April
    30,
    1990.
    No other briefs shall be filed.
    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
    /(~I-
    day of
    ________________,
    1990 by
    a vote of
    .7
    /
    ~
    ~
    ~orothy
    N.
    G~/nn, Clerk
    Illinois Po~1/LutionControl Board
    109—444

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