ILLINOIS POLLUTION CONTROL

BOARD

August

1,

1994

PEOPLE OF THE STATE

)

OF ILLINOIS,

)

Complainant,

)

v.

)

PCB 92—164

(Enforcement)

)

BERNIECE KERSHAW

AND

DARWIN

)

DALE KERSHAW,

d/b/a KERSHAW

)

MOBILE HOME PARK,

)

Respondents.

ORDER OF THE BOARD

(by G

.

T.

Girard):

As directed in the Board’s order of Nay 5,

1994,

hearing is

presently scheduled in this matter for August 3,

1994 at 11:00

am.

in Colona,

Illinois.

On July 27,

1994, the parties filed a

joint motion to waive hearing and to instead set only a briefing

schedule on the issue of penalty.

In support of this request,

the motion recites:

The parties agree that sufficient factual

evidence which is necessary for the

determination of an appropriate civil penalty

in this action is either contained in the

record or will be submitted into the record

within a short time period.

The parties

believe that a formal hearing on the issue of

penalty is unnecessary and constitutes an

unwarranted expenditure of the time and

resources of the Board and of Complainant and

Respondents.

The parties believe that once

all the factual information necessary for the

determination of an appropriate penalty is

submitted into the record, the parties can

present their legal arguments in the form of

written briefs.

The motion includes a suggested discovery, document submittal,

and briefing schedule.

When the Board ordered this matter to hearing in Nay,

it did

so because the parties had clearly indicated their intent to

supplement the record and had in fact begun submitting unsworn,

unsupported factual material into the record.

Although this

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2

deficiency has been corrected by complainant’s July 25 filing,

the Board remains concerned that factual disputes will arise in

conjunction with penalty issues.

The Board’s concern

is hardly

assuaged by the fact that the parties contemplate that more

discovery will occur in this action.

To save the Board and its hearing officer needless

expenditure of time and resources, the Board will grant the

motion to cancel the August

3 hearing, and will establish the

schedule suggested by the parties with some modifications.

The

Board will establish a discovery cut-off prior to the cut off

date for filing all information and prior to the due date of

complainant’s brief,

and will also provide that the parties must

stipulate to entry of documents into the record.

In the event

that the parties cannot agree to entry of documents into the

record, this matter will be set for hearing.

The parties shall adhere to the following schedule:

1.

All discovery as to the factors set forth in

Sections 33(c)

and 42(h)

of the Act must be

completed on or before August 22,

1994.

2.

All additional factual information,

including but

not limited to respondents’ financial reports for

the years 1985 through the present date,

and

compliance cost estimates prepared by Respondents’

engineering consultant, must be submitted into the

record on or before August 29,

1994.

The parties

must stipulate to the entry of all such

information.

In the event that the parties cannot

agree to record entry of information, they shall

inform the hearing officer who shall set the

matter for hearing.

In this eventuality,

paragraphs 3—5 below are vacated, and the hearing

officer directed to establish a post-hearing

briefing schedule.

3.

Complainant shall file its brief on or before

September 29.

4.

Respondents shall file their responsive brief on

or before October 31,

1994.

5.

Complainant shall file its reply,

if

any,

on or

before November 15,

1994.

IT IS SO ORDERED.

1

Compliance Evaluation Inspection Report and Supporting

Affidavit.

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3

I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above order was adopted on the

22

day of

______________,

1994,

by a vote of

~‘(~

c_~

~-v

Dorothy N. G,4nn~Clerk

Illinois Pollution Control Board