ILLINOIS POLLUTION CONTROL BOARD
February 7, 2002
E.G. VOGT OIL COMPANY, )
)
Petitioner, )
)
v. ) PCB 00-70
) (UST Fund)
ILLINOIS ENVIRONMENTAL )
PROTECTION AGENCY, )
)
Respondent. )
ORDER OF THE BOARD (by N.J. Melas):
This is one of seven cases brought to the Board’s attention by the hearing officer for the
same reason: the failure by counsel for the respondent to file the record as ordered is preventing
petitioner from filing a motion for summary judgment.
See
35 Ill. Adm. Code 105.116 and
hearing officer order of January 31, 2001, in E.G. Vogt Oil Company, Inc. v. IEPA, PCB 00-70;
Freeburg Investors Group, Inc. v. IEPA, PCB 00-74; East Side Acquisitions, Inc. d/b/a State
Street Shell v. IEPA, PCB 00-76; Linneman Oil Company v. IEPA, , PCB 00-94; Granite City
Sheet Metal v. IEPA, PCB 00-138; L. Wolf Company v. IEPA, PCB 00-139; and E.G. Vogt Oil
Company, Inc. v. IEPA, PCB 00-141. Petitioner in each of the seven cases is represented by the
same attorney. The same attorney has appeared for respondent in each case. In the interests of
administrative economy, the hearing officer has been handling these actions as a group for the
purposes of scheduling pre-hearing telephonic status calls.
Entry of the January 31, 2002 hearing officer order has at last spurred production of the
late records. Respondent’s counsel filed all but one of the records, accompanied by motions for
leave to file
instanter
, on February 5-6, 2001. (The unfiled record is that in L. Wolf Company v.
IEPA, PCB 00-139.) As the Board and the parties cannot move these cases to a resolution
without use of the Agency record, the Board has no choice but to grant each motion for leave to
file
instanter
. But, in so doing, the Board in no way intends to countenance the pattern of delay
and disregard for the Board and its processes exemplified in these cases.
These cases were filed on various dates between October 14, 1999 and March 1, 2000.
Section 105.116 of the Board’s procedural rules dictates that the record in appeals such as these
must be filed:
within 30 days after the filing of the petition for review, unless . . . the Board or hearing
officer orders a different filing date. If the State agency wishes to seek additional time to
file the record,
it must file a request for extension before the date on which the record is
due to be filed
. 35 Ill. Adm. Code 105.116 (emphasis added).
2
Counsel did not timely file the records in any of these cases. Motions for extensions of
time were filed on January 14, 2000 in two cases only: Freeburg Investors Group, Inc. v. IEPA,
PCB 00-74; East Side Acquisitions, Inc. d/b/a State Street Shell v. IEPA, PCB 00-76. The latter
motion was timely filed, while the former was not.
On August 3, 2001, the respondent’s counsel represented to the hearing officer and the
petitioner that he would file the record in each of the seven cases. Counsel did not do so. On
December 3, 2001, the hearing officer issued an order directing respondent to file the records.
During a telephone status conference on January 10, 2002, the respondent’s counsel represented
that he would file the records by mailing them January 11, 2002. Counsel did not do so. When
the hearing officer detailed these events to the Board in his January 31, 2002 order, counsel
finally took action. As previously stated, six of the seven records were filed on February 5-6,
2002.
The Board has directed its hearing officers to bring any similar patterns of delay in other
cases to the Board’s early attention. Where necessary, the Board will consider imposing
appropriate sanctions against the respondent or its counsel.
See
Ill. Adm. Code 101.800. The
Clerk is directed to notify the parties of the entry of this order today, by means of telephone or
telefax, in addition to making service in the usual way.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on February 7, 2002, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
