ILLINOIS POLLUTION CONTROL BOARD
June 22, 2000
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
PANHANDLE EASTERN PIPELINE
COMPANY, a Delaware corporation,
Respondent.
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PCB 99-191
(Enforcement - Air)
ORDER OF THE BOARD (by M. McFawn):
Currently three motions are pending in this case, each filed on May 30, 2000, by
complainant the People of the State of Illinois: a “Motion to Strike Affirmative Defenses,” a
“Motion in Limine” seeking exclusion of certain expert testimony, and a “Motion to
Incorporate,” seeking inclusion of the record in PCB 98-102, a permit appeal filed by
respondent Panhandle Eastern Pipeline Company (Panhandle). Panhandle filed responses to
the motions on June 6, 2000. For the following reasons, the Board denies complainant’s
“Motion to Strike Affirmative Defenses” and “Motion to Incorporate,” and grants
complainant’s “Motion in Limine.”
MOTION TO STRIKE AFFIRMATIVE DEFENSES
On June 29, 1999, complainant filed a two-count complaint alleging violations of an
array of state and federal statutes and air regulations and violation of permits due to excess
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emissions. On July 27, 1999, Panhandle filed an “Answer and Affirmative Defenses,”
asserting five affirmative defenses. As noted above, on May 30, 2000, complainant moved to
strike Panhandle’s affirmative defenses.
Under 35 Ill. Adm. Code 101.243(a), motions to strike or challenge the sufficiency of a
pleading must be filed within 21 days after service, “unless the Board determines that material
prejudice would result.” Complainant’s motion was filed ten months late. Complainant has
not identified, nor can we see, any prejudice that would justify entertaining this motion at this
late date. (The parties have engaged in substantial discovery and, until very recently, the
hearing on this case was scheduled to begin next week.) Complainant’s “Motion to Strike
Affirmative Defenses” is therefore denied as untimely.
By this order, the Board is not ruling on the validity of any of Panhandle’s affirmative
defenses. Complainant may of course still argue that any given defense is invalid.
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MOTION IN LIMINE
By its “Motion in Limine,” complainant asks the Board to exclude “any evidence or
testimony relating to recent Illinois environmental civil penalties.” This motion has its
genesis, apparently, in the proposed expert testimony of Bill Forcade, as disclosed in
discovery. Forcade’s proposed testimony is described in Panhandle’s discovery responses
thus:
Mr. Forcade will discuss Illinois judicial and administrative civil penalties in
environmental cases. He will discuss the highest penalties issued by the Board
in contested air cases and in stipulated settlements of cases involving air issues.
He will discuss the average penalties assessed in air and other environmental
enforcement cases over time. He will testify that the $8 million in civil
penalties being sought in this matter is not only significantly greater than the
highest penalties issued by the Board in other air matters, but also
approximately the amount of all civil penalties levied by the Board in all matters
since the Board was created in 1970. He will testify that the amounts the Board
has determined appropriate penalty amounts in other enforcement cases in the
past shows [sic] that the amount of the civil penalty sought by the Complainant
in this matter is inappropriate.
Appended to complainant’s motion is a memorandum by Forcade discussing penalties imposed
by the Board and compiling statistical data about penalties.
Complainant argues that Forcade’s testimony will not be relevant, and that discussion
of past Board actions is more appropriately undertaken in a brief than in testimony.
Panhandle, noting that a broad range of evidence is admissible in enforcement cases, notes the
Board’s statement in Illinois Environmental Protection Agency v. Barry (May 10, 1990), PCB
88-71, slip op. at 8, that “in order to properly address the penalty issue in this case, a broad
overview of Illinois, federal and some other states' penalty determinations is necessary to guide
the Board in this, and future decisions.” Panhandle asserts that Forcade’s report and proposed
testimony are identical to the information the Board considered relevant in the Barry case, and
consequently his testimony should be allowed.
All the factual information about which Forcade is expected to testify is public
information contained in Board records, or the result of application of math to such
information. A witness need not testify about this type of information for it to be considered
by the Board. We agree with complainant that the matters to which Panhandle intends to have
Forcade testify are more properly addressed as argument in a brief.
Accordingly, the Board grants complainant’s “Motion in Limine.” Evidence relating to
recent Illinois environmental penalties will be excluded. Panhandle may, of course, cite any
prior Board decisions in its argument, and may argue that earlier decisions provide guidance to
the Board in this case.
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MOTION TO INCORPORATE
Through its “Motion to Incorporate,” complainant seeks to incorporate the
administrative record and hearing transcript of Panhandle’s permit appeal, PCB 98-102.
Complainant asserts that “evidence that was introduced in the preceding hearing substantially
overlaps with evidence that will need to be presented in the instant action,” Mot. at ¶ 3, and
that inclusion of the prior record and transcript will “ensure that the resources of the Board,
the Complainant, and the Respondent are not needlessly used and that administrative economy
of the Board is ensured.” Mot. at ¶ 4. Panhandle, while agreeing that some information from
the previous proceeding may be relevant to this action, “does not agree that every single
document in the Administrative Record or every statement made in the Hearing Transcript is
relevant.” Panhandle also challenges that incorporation of the entire record will promote
administrative economy, since inclusion will merely increase the amount of material the Board
must review.
The Board’s procedural rule governing motions to incorporate, 35 Ill. Adm. Code
101.106, provides in subsection (a) that “[t]he person seeking incorporation shall demonstrate
to the Board . . . that the material to be incorporated is relevant to the proceeding.” The
Board finds complainant’s conclusory statement in its motion, that the evidence in the two
proceedings substantially overlaps, is not sufficient to demonstrate the relevance of the entire
administrative record, at least in the face of Panhandle’s objection. The Board therefore denies
complainant’s motion. This denial, however, is without prejudice to the extent that
complainant can demonstrate more concretely that the record or some portion of it is relevant
in this case.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 22nd day of June 2000 by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
