ILLINOIS POLLUTION CONTROL BOARD
December
2,
1982
UNITY VENTURES,
Petitioner,
v.
)
PCB 80—175
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
and COUNTY OF
DU PAGE,
)
Respondents.
ORDER OF THE BOARD
(by
I.
Goodman):
On October
5,
1982 the Board ordered Unity Ventures
(Unity)
to respond to long outstanding discovery requests no later than
October
12,
1982 and that any additional discovery was to be
completed within forty-five days of that Order.
On November 12,
1982 subsequent to pleadings filed by both parties,
the Board
issued an Order resolving
which
responses to the Illinois
Environmental Protection Agency’s
(Agency) discovery requests
were required from Unity.
The Board further ordered that Unity’s
responses be provided no later than November 19,
1982, the above
mentioned forty—fifth day.
If Unity failed
to comply,
that Order
stated that sanctions would be imposed.
On November
24,
1982
the Agency moved that sanctions be imposed,
Unity having failed
to comply with the November
12, 1982
Board Order.
An affidavit
attesting to the same was filed on December
1,
1982.
On December
1,
1982 Unity filed
a combined Motion for
Reconsideration of the Board’s November 12,
1982 Order and a
Response in Opposition to the Agency’s Motion
for Sanction.
Unity reiterated therein that the discovery motions are more
properly before the Board’s hearing officer.
This
is not a new
argument and was adequately addressed by the Board in its
November 12th Order.
Unity further argues that insufficient
time was allowed for compliance with the Board’s Order.
Although
possibly persuasive,
three factors counteract that argument:
Unity’s requests for additional time came after twelve days had
elapsed from the date compliance was required and then only
after the Motion for Sanctions had been
filed; Unity requests
two months to comply due
to the holidays; and the attached adden-
dum which lists numerous pleadings,
time extensions and Board
orders which were intended to lead finally to
a decision on the
variance petition.
The Board can only interpret Unity’s actions
as
intentionally dilatorious,
50-41
2
Pursuant to Section 37 of the Environmental Protection Act
(Ill.
Rev.
Stat.
1982,
ch.
111½, §1037)
(Act) the Agency has
a
duty to investigate variance petitions
arid
make a recommendation
as
to the disposition of the petition
to the Board.
Pursuant
to Section 35 of the Act
(Ill.
Rev. Stat.
1982,
ch.
111½, §1035)
variance can only be granted upon an adequate showing of
arbitrary or unreasonable hardship should Petitioner have to
comply
with
Board regulations or Order.
The Agency’s
discovery
requests inquire about this issue, so that
it can make an informed
recommendation to the Board and representation of its position at
hearing.
Unity’s continued refusal
to respond to the Agency’s
discovery requests and Board Orders interferes with the Agency’s
ability to fulfill its statutory duty.
Unity’s right to petition
for variance cannot take precedence over the statutory obligation
of the Agency.
The Agency’s Motion is granted.
The following sanctions are imposed pursuant to 35 111. Mm.
Code 107.101(c):
a)
No issues involving ownership of the property as
alleged in the petition may be raised by Unity at hearing.
Unity
shall be barred from making any claim as to the ownership of the
property and all reference to ownership of the property shall be
stricken from Unity’s Petition for Variance.
b)
No issues involving expenditure of funds for land
development costs,
land improvements costs,
interest and real
estate taxes
for Hobson Green Units
One, Two or Three may be
raised by Unity at the Hearing.
Unity shall he barred from makiij
any claim concerning any expenditure of funds
for such items and
all references to such expenditures shall
he stricken from Unity’s
Petition for Variance.
c)
No issues involving the past or present holder of
the
permit which is the subject of this petition may be raised by
Unity at the hearing.
Unity shall
be barred from making any
claim as to the ownership of that permit and all references
to
such permit shall be stricken from Unity’s Petition for Variance.
d)
No issues concerning Unity’s plans
for development of
the property may be raised by Unity at
the hearing.
Unity shall
be barred from making any claim concerning the presence of any
plans for development and all
references to such plans
for
development shall be stricken from Unity’s Petition for Variance.
It is noted that on November 18,
1982,
prior to filing
the
Motion for Sanctions,
the Agency
filed a Motion
to Modify the
Board’s November 12,
1982 Order in this matter.
The pleadin~j
filed on December
1,
1982 by Unity included
a Response to this
motion.
With today’s ruling, both are mooted.
IT IS SO ORDERED.
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ADDENDUM
Date
Pleadinq
06/03/82
06/04/82
06/09/82
06/10/82
06/11/82
06/16/82
06/17/82
06/25/82*
06/28/82
07/01/82
07/21/82*
07/22/82*
07/22/82
08/09/82
08/10/82*
08/10/82
08/10/82*
08/20/82
08/25/82*
08/31/82
09/02/82
09/13/82
09/16/82*
09/17/82*
09/21/82
09/21/82
09/23/82
10/05/82
Remand Mandate
Motion for Order
Addendum to Motion for Order
Board Order to Set Hearing
Interrogatories,
First Set
Request to Produce Documents
Request for Admissions
Request for Admissions of
Genuineness of Documents
Motion for Additional Time
Response
to Motion for Additional Time
Responses due to Requests filed 06/11/82
Additional time granted by hearing officer.
Agency’ s Recommendation
Board Order
(Denying 06/04/82 Motion
for Order)
Responses due to Requests filed 06/11/82
Additional time granted by hearing officer
pursuant to Petitioner’s Oral Motion at
pre—hearing conference.
Request for Witness List
Hearing Officer Order Setting Hearing
Responses due
to Requests filed 06/11/82
Response to Request for Admissions and
Genuineness of Documents
Additional Time to Respond to Remaining
Requests granted by hearing officer
Leave to File and Motion to Strike
Request for Additional Time to Respond
until 08/31/82——granted by hearing
officer until 09/17/82
Response to Motion
to Strike
Board Order denying Motion to Strike
Affidavit accompanying Response to Request
for Admissions
filed 08/10/82
(as ordered
by Board Order of 09/02/82)
Motion for Additional Time to Respond
Responses due
Response in Opposition of Additional Time
Motion for Reconsideration of 09/02/82
Board Order
Response
in Opposition to Motion for
Reconsideration
Board Order reaffirming 09/02/82 denial
of Motion to Strike; Order responses
by 10/12/82 and hearing
to be set
Respondent
Respondent
Respondent
Respondent
Respondent
Respondent
Petitioner
Respo
rìd~
n t
Respondent
Petitioner
Respondent
Petitioner
Petitioner-
Respondent
Respondent
Petjtioner
50-43
PleadinQ
Date
Part
V
10/12/82
10/12/82
10/12/82
10/18/82
10/18/82
10/18/82
10/22/82
11/03/82
11/03/82
11/12/82
11/18/82
11/19/82
11/24/82
12
/ 1/82
12/2/82
Motion to Strike Interrogatories
Motion
to Strike Production of Documents
Response to Request for Witness List
Response
to
Motions
to
Strike
Motion to Complete Discovery and
Motion
for
Sanctions
Motion
to
Set
Hearing
Date
Motion
to
Compel
Responses
Motion for Leave to File
Responses in Opposition to Motion
to Compel Discovery
Board Order ordering Responses by 11/19/82
Motion to Modify
Board’s due date
Motion for Sanctions
Motion for Reconsideration,
Response
to Motion for Reconsideration and
in Opposition to Motion for Sanctions
Board Order imposing Sanctions
Petitioner
Petitioner
Petitioner
Respondent
Resporiden
t
Respondent
Respondent
Petitioner
Petitio
~ier
Respondent
Respondent
Petitioner
*See
September
Additional
Time
21,
1982 Motion in Opposition
to Request
for
50-44
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Boa~d,hereby certify that the above Order was adopted
on the
~“
day ~
,
1982 by a vote of
~/.
‘1I~!~~
Christan L. Moff~tt,Clerk
Illinois Pollution ~ControlBoard
50-45