ILLINOIS POLLUTION CONTROL BOARD
March 17,
1994
THE GRIGOLEIT COMPANY,
)
Petitioner,
v.
PCB 89—184
)
(Permit Appeal)
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
THE GRIGOLEIT COMPANY,
Petitioner,
V.
PCB 92-23
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
(Consolidated)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by C.A. Manning):
On November 24,
1993, this case was remanded to the Board by
the Fourth District Appellate Court of Illinois.
(Griaoleit
Company v.
Illinois Pollution Control Board and Illinois
Environmental Protection Agency,
(4th Dist.
1993)
245 Ill. App.3d
337,
613 N.E.2d 371, aDDeal denied (1993)
152 Ill.2d 558, 622
N.E.2d 1205.)! The case was remanded for the specific purpose of
assessing sanctions against the Illinois Environmental Protection
Agency (Agency), in the form of attorneys’
fees paid by The
Grigoleit Company (Grigoleit), for costs incurred after June 20,
1991 in attempting to secure the company’s air operating permit.
More specifically, the Board’s December 16,
1991 decisIon not to
award the above—referenced sanctions was reversed by the Fourth
District in the following May 6,
1993 order:
We fully agree with the Board’s rejection of
Grigoleit’s request that a collateral complaint against
Grigoleit should be dismissed as a sanction.
However,
‘On November 17,
1993, the Supreme Court of Illinois denied
the Illinois Environmental Protection Agency’s Motion for Leave
to File a Motion for Reconsideration of the Supreme Court’s
October 6,
1993 order denying the Agency’s Petition for Leave to
Appeal.
2
Grigoleit is entitled to some expense reimbursement as
a sanction.
Accordingly, we affirm all aspects of
the
Board’s
order
on judicial review except to the extent it
refuses an award of attorneys fees.
We reverse that
portion of the order and remand to the Board with
directions to award Grigoleit attorney fees in regard
to the proceeding after the second remand.
(Grigoleit,
613 N.E.2d at 351.)
The Motion for Order Assessing Sanctions filed by Grigoleit
in this case was filed on December 15, 1994.
The motion seeks
attorneys fees and expenses incurred by three law firms
(Booth
&
Little; Kehart, Shafter, Hughes, and Webber,
P.C; and Gardner,
Carton
& Douglas) who represented Grigoleit in the matter of the
appeal of the Agency’s denial of the requested air permit from
the time period of June 20,
1991 through November 1,
1993.
In
that time frame, two Grigoleit air permit appeal cases were
processed,
PCB 89-184 and PCB 92-23.
Grigoleit also requests
leave to file a supplement for fees incurred after November 1,
1993 until closure of these two cases.
On January 18,
1994, the Agency filed
a response to the
Motion for Order which raised several factual issues as to the
appropriateness of the attorney fee amounts requested by
Grigoleit.
Subsequent to that response, on February 3,
1994, we
requested that Grigoleit provide further and more specific
documentary information.
Moreover,
in that same order we
granted,
in part, Grigoleit’s December 15th Motion for Order.
We
directed that the disputed air operating permit be issued within
30 days or March
5, 1994. On March 9,
1994,
the Agency filed
documentary evidence indicating that the permit was sent to
Grigoleit via certified mail on March
5,
1994 and that an agent
for Grigoleit signed for the permit on March
8,
1994.
On February 23,
1994, Grigoleit responded to our february 3,
1994 order by filing a Supplement to its original motion.
The
Supplement further distinguished and delineated the specific
purposes for which attorney fees and expenses were charged to
Grigoleit by the three law firms which represented it In various
aspects of this proceeding.
More specifically, one of those
firms
reduced the fees originally requested by $2,572.90
Subsequent to this filing, on March 7,
1994,
the Agency
filed an amended response to Grigoleit’s Supplement.
In such
response, the Agency states it is satisfied with the information
provided by Petitioner and therefore requests that the Board
consider the record closed and make its determination.
The Board
considers the record complete, and makes the following
determination.
3
In addition to the authority conferred by court remand, the
Board more specifically has sanction authority pursuant to 35
Ill. Adm. Code Section 101.280(a) (7).
This provision states:
a)
If a party or any person unreasonably refuses to
comply with any provision of 35 Ill.
Adm. Code 101
through 120 or fails to comply with any order entered
by the Board or the hearing officer,
including any
subpoena issued by the Board or hearing officer, the
Board will order sanctions.
In addition to remedies
elsewhere specifically provided, the sanctions may
include, among others, the following:
7)
That the offending person pay the
amount of reasonable expenses
incurred in obtaining an order
pursuant to this Section.
Thus,
it is within this Board’s discretion to determine
whether the fees requested in this matter are reasonable.
The
Agency makes two arguments regarding the reasonableness of the
requested fees.
First,
in its original response to the Motion for Order, the
Agency questioned the appropriateness of attorneys fees related
to both PCB 89-184 and PCB 92-23, arguing that only fees related
to PCB 89—184 are relevant for purposes of the court’s sanctions
order.
We disagree.
Rather, we are persuaded by the facts of
this case and the intent of the court remand that the two cases
are indistinguishable and Grigoleit should be awarded the costs
of proceeding on both.
We agree with Grigoleit that the “proceeding” after our
second remand included not only litigation occurring in PCB 89-
184, but also that occurring in PCB 92—23.
Clearly, had the
Agency issued the permit as directed by this Board on December
16, 1991,
the case filed and docketed as PCB 92-23 wou4d not have
been necessary.
The only reason for the separate docketing of the
second case was because Grigoleit filed an appeal of our denial
of sanctions in PCB 89-184 on December 16,
1991, divesting this
Board of jurisdiction, and the Agency, on January 7,
1992, had
issued a permit with special conditions beyond our December 16th
directive.
The relief sought in both cases was identical
-
the
issuance of the underlying air operating permit without special
conditions,
and,
now, the resulting attorneys fees for obtaining
the permit.
Moreover, PCB 92-23
itself was presented to the
Appellate Court as an issue by the Agency.
The Agency stated to
that court in its brief:
“In PCB number 92-23, Grigoleit has
asked the Board for the same relief it requests in this appeal to
this Court.”
(Agency Br.
at 5-6, filed July 20,
1992 in No. 4-92-
0029.)
Accordingly, we find that the sanctions amount awarded in
this order should include attorneys fees incurred in PCB 92-23
as
4
well as PCB 89—184.
Second, the Agency argues against the Board ordering fees
for anything other than what may strictly be construed as hourly
fees for legal services.
Specifically,
it objects to the
$3,658.30 requested by Grigoleit for the expenses incurred by
their attorneys in the course of their representation.2
We read
the court remand, together with 35 Ill. Adm. Code 101.280(a) (7),
more broadly than does the Agency.
Both the Appellate Court’s
remand “Grigoleit is entitled to some expense reimbursement as a
sanction” and Section 101.280(a) (7)
of our rules,
“that the
offending person pay the amount of reasonable expenses incurred
in obtaining an order pursuant to this Section,” refer to the
word “expenses” when delineating the Board’s sanction authority.
The expenses requested here are minimal, reasonable, and
unquestionably tied to the firms’ legal representation of
Grigoleit in these permit appeals.
We find them reasonable and
so order.
Finally, review of the documentary evidence submitted by
Grigoleit in both the Motion for Order and the Supplement,
shows
the fee rates charged by each of the law firms representing
Grigoleit are commensurate with those normally charged in the
Decatur and Chicago areas.
It is no longer disputed that the
attorney bills attached to the Motion for Order and the
Supplement identify the types of services performed and supply an
adequate breakdown of the number of hours spent on those
services.
We are also satisfied the fees requested in the Motion
for Order, as modified by the Supplement, do not reflect services
for other than representation of Grigoleit in PCB 89-184 and PCB
92-23. The Agency no longer argues otherwise.
We also recognize
$80,634.15 is not an unreasonable or inappropriate amount of
attorneys fees in light of Grigoleit’s having to appeal two
permit denials.to the Board, as well as a permit granted with
inappropriately-applied special conditions, pursuit of an appeal
in the Appellate Court and opposition to a Petition for Leave to
Appeal before the Illinois Supreme Court.
For all of the above—stated reasons, the Board orders
sanctions in the amount of $84,292.45 to be paid by the Illinois
Environmental Protection Agency to Grigoleit on or before July
31,
1994.
There remains one final matter. In its Motion for Order,
2Booth
& Little incurred $1,068.26 in PCB 89-184 and in PCB
92—23,
$728.22 for faxes,
copies, and similar expenses.
Kehart
&
Shafter incurred $187.26 in PCB 89—184 and Gardner, Carton and
Douglas incurred $291.65 in PCB 89—184 and $1633.54
in PCB 92-23.
5
Grigoleit sought leave to file a supplemental request for
attorneys’
fees incurred from November
1,
1993 to the closure of
PCB 89-184 and PCB 92-23.
The motion is denied.
Essentially,
these fees would be for the amount paid in pursuit of this
sanction order and resulting attorneys’
fees.
Since the
contested permit has been finally issued by the Agency pursuant
to our order of February 3,
1994, we consider this matter closed
and the ordered sanctions reasonable pursuant to both the
Appellate court remand and our authority under 35 Ill. Adm. Code
101.280(a) (7).
Further, since by virtue of this order we award
sanctions for both PCB 89-184 and PCB 92-23 and find, pursuant to
arguments of Grigoleit,
that the two proceedings are
“inextricably intertwined”
we, on our
own
motion, herein
consolidate both cases and hereby close this docket.
IT IS SO ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif
that the above order was adopted
or~
the
/7cZ~
day of
___________________,
1994, by a vote of
1~’~
~
)~.
Dorothy M. ,.qunn, Clerk
Illinois P~).lutionControl Board