ILLINOIS POLLUTION CONTROL BOARD

January 6,

1994

GRIGOLEIT

COMPANY,

)

Petitioner,

v.

)

PCB 89—184

)

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

ORDER OF THE BOARD

(by C.A. Manning):

On December 15,

1993, the Grigoleit Company (“Grigoleit”) by

and

through

one

of

its

attorneys,

A.

James

Shafter

of

KEHART,

SHAFTER,

HUGHES

&

WEBBER,

P.C.1,

filed

a

“Motion

for

Order

Assessing Sanctions and Reiuandment for Issuance of Air Operating

Permit without Special Conditions (“Motion for Order”). The Motion

for Order was filed pursuant to the Appellate Court of Illinois,

Fourth District’s final opinion and order remanding this matter to

the Board.

(Grigoleit CoTn~anyv. Illinois Pollution Control Board

and Illinois Environmental Protection Agency,

(4th Dist. 1993) 245

Ill. App.3d

337,

613 N.E.2d

371.)2

The Appellate Court mandated

that the Board direct the Agency to issue an air operating permit

without any special conditions for a decorative metal fabrication

plant operated by Grigoleit.

The Court also awarded Grigoleit

“sanctions”

from

the

date

of

our

second

remand

in

this

case

(Grigoleit

V.

IEPA,

(June

20,

1991),

PCB

89-194)

based

on the

Illinois Environmental Protection Agency’s

(“Agency”)

refusal to

follow the Board’s remand order that the Agency issue the permit.

On December 23, 1993, the Agency filed a “Motion for Extension

of

Time

to

File Response”

(“Notion

for

Extension”)

indicating

counsel for the Agency had not been served with a signed copy of

the Motion for Order and that on December 21,

1993, the Office of

1Grigoleit

is

represented

by

A.

James

Shafter

of

KEHART,

SHAFTER,

HUGHES

& WEBBER, P.C.

in PCB 89-184 and by Roy M. Harsch,

of GARDNER, CARTON

& DOUGLAS in PCB 92-23.

2The

Agency

filed

a

petition

for

leave

to

appeal

the

Appellate Court’s opinion and order of May 6, 1993.

On October

6,

1993,

the

Illinois

Supreme

Court

denied

the

petition

and

on

November 17,

1993,

the Supreme Court denied an Agency motion for

leave to file a motion for reconsideration of the Court’s denial.

The Supreme Court’s order of November 17,

1993,

precipitated the

instant motion.

---

2

the Attorney General forwarded the Agency its copy of

the

motion.3

The Agency requests an extension of time of an additional 21 days

in which to file a response.

The Agency cites Grigoleit’s failure

to properly and timely serve the Agency and the Agency’s need for

an adequate amount of time to review the attorneys’ billable hour

and expense sheets comprising the requested sanctions.

On December

29, 1993, the Board received a response to the Motion for Extension

from Grigoleit stating several objections. On January 3,

1994, the

Agency filed, without an accompanying motion for leave to file,

a

“Response to Objection to Motion for Extension of Time to File

Response”.

We hereby grant the Agency’s Motion for Extension and do so

based on Grigoleit’s failure to properly serve Agency counsel with

the

Motion

for

Order.

Grigoleit’s

main

argument

against

an

extension is its assertion the Agency was “constructively” served

on December 20, 1993 when the Agency’s counsel received Grigoleit’s

status report filed in related case, PCB 92—23.

An unsigned copy

of the Motion for Order was affixed as an attachment to that status

report. We find this argument unpersuasive.

It is clear from the

filings in both this case and in PCB 92-23, that the motion was not

only unsigned,

but the attorneys’

billable hour sheets were not

included with the Notion

for

Order when it was attached to the

status report.

(See Grigoleit

V.

IEPA,

PCB 92-23,

Petitioner’s

“Status

Report”

filed

December

15,

1993.)

These

attorneys’

billable hour and expense

sheets comprise Grigoleit’s requested

sanctions amount and the Agency would not have had an opportunity

to

review

the

figures

until

having

received

a

copy

from

the

Attorney General on December 23,

1993.

(Motion for Extension, at

2.)

The Agency may have had notice that Grigoleit intended to file

a motion,

but

its counsel would not have had knowledge of the

entirety

of

that

motion,

specifically,

the

billable

hour

and

expense sheets.

Moreover, service upon the Office of the Attorney

General solely, without also serving the Agency, does not satisfy

the Board’s service requirements found at 35 Ill. Adm. Code Subpart

C.

Sharon Davis

as counsel for the Agency

is unquestionably the

proper party

in this proceeding warranting service; the Attorney

General represented the Agency as the appellate counsel and he has

not filed an appearance on behalf of the Agency in this proceeding.

To date, there is no evidence in the record that Grigoleit has even

3me

Certificate

of

Service

signed

by

attorney

A.

James

Shafter, indicates that he served via Federal Express,

Ms. Dorothy

Gunn,

Clerk of the Illinois Pollution Control Board,

Mr. Mark E.

Wilson, Assistant Attorney General and Ms. !4usette Vogel, Attorney

Assistant to the Chairman of the Illinois Pollution Control Board,

and that counsel for the Agency, Sharon Davis, was not served with

the Motion for Order.

---

3

attempted to perfect service upon the Agency.’

As

stated

above,

we

hereby

grant

the Agency’s Motion

for

Extension.

The Agency

is directed to file its response on or

before January 18,

1994.

IT IS SO ORDERED.

I,

Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

oard,

hereby certi

hat the above order was adopted on the

___

day of

,

1994, by a vote of

~

L~

Dorothy M. Gw~, Clerk’

Illinois Poflt~tionControl Board

4We note that in PCB 92-23, Grigoleit, by its attorney Roy N.

Harsch, properly served Sharon Davis, counsel for the Agency, with

a copy of the status report.