ILLINOIS POLLUTION CONTROL BOARD
    February
    15,
    1996
    ESG WATTS, INC.,
    an Iowa corporation,
    )
    PCB
    94-243
    )
    94-306
    Petitioner,
    )
    94-307
    )
    94-308
    v.
    )
    94-309
    )
    95-133
    ILLINOIS ENVIRONMENTAL
    )
    95-134
    PROTECTIONAGENCY,
    )
    (Permit Appeals
    -
    Land)
    )
    (Consolidated)
    Respondent.
    )
    ORDER OF
    THE
    BOARD
    (by
    CIT. Girard):
    On February 2,
    1996, the petitioner filed a motion to exclude respondent’s brief
    On
    February 7,
    1996, the Board received a response to that motion and a motion to file the post..
    hearingbriefofrespondent instanter.
    Petitioner directedits motion
    to the hearing officerin this
    proceeding.
    OnFebruary
    13,
    1996, the Board received a response to the motion to file instanter
    and a motion for additional sanctions.
    Even though the motions at issue were originally addressed
    to the hearing officer, the Board will today rule on these motions.
    Petitioner argues that the briefoftherespondent should be excluded because the briefwas
    not timely filed.
    The petitioner states that the hearing officer’s order setting the briefing schedule
    directed that thepetitioner’s briefbe at the Board’s office
    on
    January
    12,
    1996; therespondent’s
    briefbe at the Board’s office on January 26; and any reply be at the Board’s office on February 9,
    1996.
    Both parties agreed to the briefing schedule.
    Petitioner argues that to
    allow the late filing
    ofthebriefprejudices petitioner in at least two
    ways.
    First, petitioner proceeded diligently,
    despite work load constraints, to submitits briefconsistent with the hearing officer’s briefing
    schedule.
    Second, petitioner’s asserts that the time for its reply has been shortened significantly
    by the late filing ofrespondent’s brief.
    In its motion foradditional sanctions, petitioner maintains that that it is appropriate to
    require respondent to pay petitioner’s reasonable attorney’s fees in filing its motion to seal and the
    motion for additional sanctions.
    Petitionermaintains that if respondent had not “attempted to file
    a copy ofits untimelybriefwith theBoard”, petitioner would not have had to prepare the
    additional motions.
    The rcspondcnt agrees that thc briefwas not
    filed
    on the due date and asks for leave
    Lu
    file
    the briefinstanter.
    Respondent maintains that due to “unforeseen circumstances” respondent was
    unable to comply with thehearing officer’s briefing schedule.
    The circumstances which
    respondent is referring to included an office move for the attorney assigned to this case; computer
    problems resulting from the move;
    and a new case assignment.
    Further,
    respondent asserts that
    2
    the attorney assigned, Dan Merriman, has “occasioned unusually long work-hours”
    since receipt
    ofpetitioner’s brief.
    The respondent argues that the Board should consider certain factors in determining the
    amount ofactual prejudice, if any.
    Those factors include that petitioner“is afforded
    two
    opportunities to address and impress theBoard with its argument” and is
    in
    charge ofthe decision
    deadline.
    Further, the respondent “has absolutely no objection to” petitioner taking
    additional
    time to file the reply.
    And
    finally, respondent argues that no prejudice will occur because
    petitioneris continuing to operate under the existing permits while this appeal proceeds.
    Petitioner responds to the motion to file instanter by arguing that the office move and
    problems with the computers could have been foreseen.
    Further, petitioner questions the
    availability ofother attorneys who appeared at thehearing in this matter, ifDan Merriman was
    unavailable.
    Petitioner also points out that the sequence ofbriefing is set by rule, which allows for
    a briefand reply by petitioner and is not unique to this case.
    The Board is unpersuaded that the circumstancescited by respondent rise to the level of
    “unforeseen” circumstances in prudent office management practices.
    The consequences ofan
    office move, computer problems arising from that move, and a new case
    assignment could all be
    “foreseen”.
    The unusually long working hours, which appear almost unbelievable1, may show
    unwise case management, but those long hours do not in themselves constitute “unforeseen”
    circumstances.
    The Board is also dismayed that there was no effort, at anytime, to contactthe
    hearing officer or theBoard to request an extensionin a more timely fashion. Instead, the brief
    was only filed five days after petitioner filed a motion to
    exclude the brief, and two
    days before
    the hearing officer’s due date for petitioner’s reply.
    Further, the Board does believe that the
    petitionerwas prejudiced by the respondent’s disregard ofthehearing officer’s briefing schedule.
    Respondent had additional time to prepare arguments which the petitioner did not have.
    The
    actual
    filing
    ofthe respondent’s brief on February 7,
    1996 allowed petitioner little to no
    opportunity for
    a timely reply under the current decision deadline.
    In addition, petitioner has
    sustained additional legal costs rising from respondent’s untimely behavior.
    However, theBoard does not believe that the exclusion ofthe Agency’s brief is the proper
    avenue to sanction the Agency.
    The issues in this permit appeal are offirst impression and
    involve government decisions that may be essential to the protection ofhuman health and the
    Illinois environment.
    The Board needs frill briefing in this case to render an appropriate decision
    in such a short time frame.
    Therefore, theBoard denies the motion to exclude and &ants the
    motion
    to
    file
    instanLer.
    The Board will giant to the petitioner additional time to file thereply
    brief.
    Such reply brief shall be received in theBoard’s officeby Friday February 23,
    1996.
    Additionally, the Board finds that petitioner has incurred unnecessary expenses in this
    action because oftheAgency’s untimely behavior.
    The Board will therefore award to petitioner
    For example, therespondent’s motion to file instanter states that
    during theninety-six hours
    from Monday January 29,
    1996 to Thursday February
    1,
    1996, the attorney assigned to this
    proceeding worked ninety ofthose hours.
    (Resp. Mot. at
    5.)
    3
    the reasonable costs incurredin the preparation ofthe motion to exclude, the motion for
    sanctions, and the response to the motion to file instanter.
    Petitioner shall file these costs with the
    Board at the same time thereply briefis due, which is Friday, February 23,
    1996.
    IT IS
    SO ORDERED.
    Board Members J.Theodore Meyer and Joseph Vi dissent.
    I, Dorothy M. Gunn, Clerk oftheIllinois?
    I
    tion Control Board, hereby certif\r that the
    above order was adopted on the
    J3”Z~
    day of
    ,
    1996, by a vote of
    ~
    Dorothy M4iunn,
    Clerk
    Illinois
    Polliftion Control Board

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