RECEIVED
CLERK’S OFFICE
FEB
20
2004
OFFICE
OF
THE ATFORNEY GENERAL
STATE OF ILLINOIS
STATE
OF
ILLINOIS
Pollution Control Board
Lisa Madigan
ATTORNEYGENERAL
February
17, 2004
The Honorable
Dorothy Gunn
Illinois Pollution Control
Board
James
R.
Thompson
Center,
Ste.
11-500
100 West
Randolph
Chicago,
Illinois
60601
Re:
People
v.
Emmett Utilities and Russell D.
Thorell
PCB No.O441..~.
-
Dear Clerk Gunn:
Enclosed
for
filing
please
find
the
original
and
ten
copies
of
a
NOTICE
OF
FILING,
COMPLAINANT’S MOTION TO STRIKE THORELL’S
MOTION TO DISMISS,
COMPLAINANT’S
MOTION TO STRIKE EMMETT UTILITIES, INC.’S ANSWER and COMPLAINANT’S OBJECTION
TO MOTION
FOR STAY OF PROCEEDINGS BY RESPONDENTS RUSSELL D. THORELL AND
EMMETT UTILITIES,
INC.
in
regard to
the above-captioned matter.
Please file the originals and
return file-stamped copies of the documents to our office in the enclosed self-addressed, stamped
envelope.
Thank you
for your cooperation and
consideration.
Very truly yours,
Thomas
Davis,
Chief
Environmental
Bureau
500 South
Second Street
Springfield,
Illinois
62706
(217) 782-9031
TDfpp
Enclosures
500 South Second
Street, Springfield,
Illinois
62706
•
(217)
782-1090
•
TTY: (217)
785-2771
•
Fax:
(217)
782-7046
100 West Randolph
Street,
Chicago. Illinois
60601
•
(312)
814-3000
•
‘I’TY:
(312)
814-3374
•
Fax:
(312) 814-3806
1001
East Main, Carbondule,
Illinols
62901
•
(618)
529-6400
•
TTY:
(618) 529-6403
•
Fax:
(618)
529-6416
BEFORE THE
ILLINOIS POLLUTION
CONTROL BO~ECE~VED
CLERK’S OFFICE
PEOPLE OF THE STATE OF
)
ILLINOIS,
)
FEB
202004
STATE
OF ILLINOIS
Complainant,
)
Pollution Control Board
)
vs.
)
PCB
NO. 04-81
)
(Enforcement)
EMMETT
UTILITIES,
INC., an Illinois
)
corporation, and
RUSSELL
D.
)
THORELL,
individually
and as
)
president of EMMETT
UTILITIES, INC.,
Respondent.
NOTICE
OF
FILING
To:
Mr.
John Meyers
Rabin,
Myers
&
Hanken, P.C.
1300 South
Eighth
Street
Springfield,
IL 62703
PLEASE TAKE
NOTICE that on this
date
I
mailed for filing with the Clerk of the Pollution
Control
Board
of
the
State
of
Illinois,
COMPLAINANT’S
MOTION
TO
STRIKE
THORELL’S
MOTION
TO
DISMISS,
COMPLAINANT’S
MOTION
TO STRIKE
EMMETT UTILITIES,
INC.’S
ANSWER and COMPLAINANT’S OBJECTION TO MOTION
FOR STAY OF PROCEEDINGS BY
RESPONDENTS
RUSSELL
D.
THORELL AND
EMMETT
UTILITIES,
INC.
,a
copy
of which
is
attached hereto
and
herewith served
upon you.
Respectfully submitted,
PEOPLE
OF THE STATE
OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation
Division
BY:________________________
THOMAS
DAVIS,
Chief
Assistant Attorney General
Environmental Bureau
500
South
Second Street
Springfield,
Illinois 62706
217/782-9031
Dated:
February 17, 2004
CERTIFICATE OF
SERVICE
I
hereby certify that
I
did
on
February 17,
2004, send
by First
Class Mail,
with postage
thereon fully prepaid, by depositing
in a
United
States Post Office
Box a true and correct copy
of the following
instruments entitled
NOTICE OF FILING,
COMPLAINANT’S MOTION TO
STRIKE THORELL’S
MOTION TO DISMISS,
COMPLAINANT’S MOTION
TO STRIKE
EMMETT UTILITIES,
INC.’S ANSWER and
COMPLAINANT’S OBJECTION TO MOTION
FOR
STAY OF PROCEEDINGS BY RESPONDENTS
RUSSELL D.
THORELL AND
EMMETT
UTILITIES,
INC.
To:
Mr.
John Meyers
Rabin,
Myers
&
Hanken, P.C.
1300
South
Eighth
Street
Springfield,
IL 62703
and the original
and
ten copies by
First
Class
Mail with
postage thereon fully prepaid
of the
same foregoing
instrument(s):
To:
Dorothy Gunn, Clerk
Illinois
Pollution Control
Board
James
R.
Thompson Center
Suite
11-500
100 West Randolph
Chicago,
Illinois 60601
A copy was also sent to:
Carol Sudman
Hearing Officer
Illinois Pollution
Control
Board
•
1021
N.
Grand Avenue East
Springfield,
IL 62794
Thomas Davis, Chief
Assistant Attorney General
RECEIVED
•
CLERK’S OFFICE
BEFORE
THE ILLINOIS
POLLUTION
CONTROL BOARD
FEB
202004
PEOPLE OF THE
STATE OF
ILLINOIS,
)
STATE OF ILLINOIS
)
POIIUtIOfl Control Board
Complainant,
v.
)
PCB
NO. 04-
81
)
(Enforcement)
EMMETT
UTILITIES, INC.,
)
an Illinois corporation,
and
)
RUSSELL D. THORELL,
individually and
)
as president
of EMMETT UTILITIES,
INC.
)
)
Respondents.
COMPLAINANT’S MOTION
TO
STRIKE THORELL’S
MOTION
TO
DISMISS
Complainant,
PEOPLE
OF THE
STATE
OF ILLINOIS,
by
LISA MADIGAN,
Attorney
General of the State of Illinois, hereby respectfully moves to strike,
pursuant to Sectiori101.50~
of the Board’s Procedural
Rules,
35
III. Adm.
Code 101.506, the
Motion
to
Dismiss filed
by
Respondent RUSSELL D.
THORELL.
Complainant states
as follows:
1.
The Complaint against EMMETT UTILITIES,
INC.,
an Illinois
corporation, and
RUSSELL
D. THORELL,
individually and as president of EMMETT UTILITIES,
INC., was filed
with the
Board
on
November 10,
2003.
The Complaint was
served
upon both
Respondents
by
certified
mail on
November
8,
2003,
along
with the notice
required by
Section
103.204(f),
to wit:
“Failure to file
an answer to this complaint within 60 days
may have severe consequences.
Failure to answer will mean that all allegations in
the complaint will
be taken as
if admitted for
purposes of this proceeding.
If you
have any questions about this procedure, you
should
contact the hearing
officer assigned
to
this proceeding, the Clerk’s Office
or an attorney.”
2.
Prior to
filing the Complaint,
by a
letter dated
October 10,
2003,
the Attorney
General’s
Office contacted Attorney John Myers,
who represents RUSSELL D.
THORELL and
1
EMMETT UTILITIES,
INC.,
in
a circuit court action
pending
appeal, to determine whether
Attorney Myers would
represent these clients
in this matter.
A copy of the draft Complaint was
provided to
counsel, who acknowledged such in a
reply dated
October 13, 2003.
Subsequent
to the filing of the Complaint,
the Attorney General’s Office
contacted Attorney Myers to
determine whether he would represent his clients
in this matter and,
if
not,
to obtain
a telephone
number for the upcoming
status conference with
the Hearing Officer.
3.
The efforts
of the Attorney General’s Office demonstrate
not only formal
compliance with
notification
requirements
but also informal communications with counsel.
In
this
context,
both
corporate and
individual
Respondents were fully aware of the enforcement
proceeding; their counsel was even
advised that litigation would
be pursued prior to
the formal
filing of the Complaint.
4.
-
Th~.Mctipri
to
D
is~fileçby_~~pondent
RUSSELL D.
THORELL was served
upon the Attorney General’s
Office on
February
11, 2004,
approximately 90 days after the filing
of the Complaint.
Section
101.506 requires that a motion
to dismiss be filed within
30 days of
the filing of a complaint “unless the
Board
determines that material
prejudice would
result.”
Not
only is the motion
untimely,
but Respondent RUSSELL
D.
THORELL failed
to seek
leave to file
such
motion and/or
to
allege
in what manner material prejudice might
result.
By failing
to
plead
this allegation,
and to
even acknowledge the untimeliness
of his
motion,
Respondent RUSSELL
D.
THORELL has waived
his ability
to attempt to demonstrate material prejudice.
The Board
has
no basis
in the record
to
entertain consideration
of whether any
prejudice might result and,
if
so,
whether such
potential
prejudice might
be deemed
material.
5.
In the event that the
Board
were
to somehow
deny this
Motion
to
Strike,
despite
the mandatory nature of its
Procedural Rule,
Complainant requests
leave to
object to the
Motion
to Dismiss on
substantive grounds.
2
WHEREFORE,
Complainant respectfully asks that the Motion to
Dismiss be stricken as
untimely and thereby denied.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW J.
DUNN, Chief
Environmental Enforcement Division
BY:________________
THOMAS
DAVIS,
Chief
Environmental Bureau
Assistant Attorney General
500 South
Second Street
Springfield,
Illinois 62706
Dated:
February
17, 2004
3
BEFORE
THE
ILLINOIS POLLUTION
CONTROL BOARD
RECEIVED
CLERK’S OFFICE
PEOPLE
OF THE STATE OF ILLINOIS,
FEB
20
2004
Complainant,
)
STATE OF ILLINOIS
)
Pollution Control Board
v.
)
PCB
NO. 04-81
)
(Enforcement)
EMMETT UTILITIES,
INC.,
)
an
Illinois
corporation,
and
)
RUSSELL 0.
THORELL,
individually and
as president
of EMMETT
UTILITIES,
INC.
)
Respondents.
COMPLAINANT’S MOTION
TO
STRIKE EMMETT UTILITIES, INC.’S
ANSWER
Complainant,
PEOPLE
OF THE
STATE
OF ILLINOIS,
by
LISA MADIGAN, Attorney
General of the
State
of Illinois, hereby respectfully moves to strike,
pursuant to
Section
101 .506
of the Board’s Procedural
Rules,
35
III.
Adm.
Code 101 .506, the Answer filed
by Respondent
EMMETT UTILITIES,
INC..
Complainant states as follows:
1.
The Complaint against EMMETT UTILITIES,
INC.,
an
Illinois corporation, and
RUSSELL D.
THORELL,
individually and
as president of EMMETT UTILITIES,
INC., was filed
with
the Board
on
November 10,
2003.
The Complaint was served
upon
both Respondents by
certified
mail on
November 8,
2003,
along with the notice required
by
Section
103.204(f),
to wit:
“Failure to file an answer to this complaint within 60 days may
have severe consequences.
Failure to
answer will mean that all
allegations in the complaint will
be taken
as
if admitted for
purposes
of this proceeding.
Ifyou
have
any questions about this procedure, you should
contact the hearing officer assigned
to this proceeding, the Clerk’s Office or an
attorney.”
1
2.
Prior to
filing the Complaint, by
a letter dated October 10,
2003,
the Attorney
General’s
Office contacted Attorney John
Myers, who represents RUSSELL 0. THORELL and
EMMETT UTILITIES,
INC.,
in a circuit court action pending
appeal, to determine whether
Attorney Myers would
represent these clients
in this matter.
A copy of the draft Complaint was
provided
to counsel, who acknowledged
such
in a reply dated
October 13,
2003.
Subsequent
to the filing of the Complaint,
the Attorney General’s Office
contacted Attorney Myers to
determine whether he would
represent
his
clients
in this matter and,
if
not,
to
obtain a telephone
number for the upcoming
status conference with
the Hearing Officer.
3.
The efforts of the Attorney General’s Office demonstrate not
only formal
compliance with
notification
requirements
but also informal
communications with counsel.
In
this
context, both
corporate and
individual
Respondents were fully aware of the enforcement
proceeding; their counsel
was even advised that litigation would
be pursued
prior to
the formal
filing of the Complaint.
4.
The Answer filed
by Respondent EMMETT UTILITIES,
INC., was served
upon the
Attorney General’s Office
on
February
11, 2004,
approximately 90
days after the filing of the
Complaint.
Section
103.204(d) of the Board’s Procedural
Rules, 35
III.
Adm. Code
103.204(d),
requires that an answer be filed
within
60 days of the filing of a complaint and that all
material
allegations will be taken
as
admitted
if no answer is filed.
5.
Complainant has
filed a
Motion for Summary Judgment against Respondent
EMMETT UTILITIES,
INC., on the grounds that,
absent a timely answer,
all material allegations
must be taken as admitted.
2
WHEREFORE,
Complainant respectfully asks that
the Answer be stricken
as
untimely.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW
J.
DUNN, Chief
Environmental Enforcement Division
BY:________________
THOMAS
DAVIS,
Chief
Environmental Bureau
Assistant Attorney General
500
South Second Street
Springfield,
Illinois 62706
Dated:
February
17, 2004
3
RECEIVED
CLERK’S OFFICE
BEFORE THE
ILLINOIS POLLUTION
CONTROL
BOARD
FEB
202004
STATE OF
ILLINOIS
PEOPLE
OF THE STATE OF ILLINOIS,
).
Pollution Control Board
)
Complainant,
)
v.
)
PCB
NO. 04-81
)
(Enforcement)
EMMETT
UTILITIES, INC.,
)
an
Illinois corporation, and
)
RUSSELL
D. THORELL,
individually and
)
as president of EMMETT UTILITIES,
INC.
)
Respondents.
COMPLAINANT’S OBJECTION
TO
MOTION
FOR STAY OF
PROCEEDINGS BY
RESPONDENTS
RUSSELL D.
THORELL AND
EMMETT UTILITIES,
INC.
Complainant,
PEOPLE OF THE STATE
OF ILLINOIS,
by
LISA MADIGAN, Attorney
General of the State of Illinois,
hereby respectfully objects
to the
Motion
for Stay of Proceedings
filed
by the Respondents,
and states as follows:
1.
Section
101.514 of the Board’s Procedural
Rules,
35
III.
Adm. Code
101.514,
requires that a
motion to stay be supported by “sufficient information
detailing why a stay is
needed.”
2.
Respondents’
Motion for Stay of Proceedings is accompanied
by documents
which may be considered to provide
information
regarding the financial status of the corporate
Respondent and
the circuit courtjudgment
against it.
None of this information pertains to
why a
stay might be
necessary.
The
sole
premise of the
motion
is the erroneous contention that the
enforcement proceeding
before the Board would
“become moot”
in the event that the Illinois
Commerce Commission
allows
the Petition
to
Discontinue or Abandon
Service.
Complainant’s
action seeks the imposition
of civil penalties
and other relief for past violations and such
claims
would not be
rendered moot.
1
WHEREFORE,
Complainant respectfully asks that the
Motion for Stay of
Proceedings
be denied.
Respectfully submitted,
PEOPLE OF THE STATE
OF ILLINOIS,
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW
J.
DUNN, Chief
Environmental Enforcement
Division
BY:________________
THOMAS
DAVIS,
Chief
Environmental Bureau
Assistant Attorney General
500 South
Second Street
Springfield,
Illinois 62706
Dated:
February 17,
2004
2