ILLINOIS POLLUTION CONTROL BOARD
December
3,
1992
SOUTHERN FOOD
PARK,
INC.,
)
an Illinois Corporation,
)
Petitioner,
v.
)
PCB 92—88
)
(Underground Storage
ILLINOIS ENVIRONMENTAL
)
Tank Reimbursement)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by B.
Forcade):
On November 30,
1992’, the Environmental Protection Agency
(Agency) filed a motion to file its final brief in this matter
instanter.
On December 2,
1992,
Southern filed a response to the
Agency’s motion to file instanter.
At the completion of hearing on October
7,
1992,
the hearing
officer determined that petitioner’s final brief was due November
10,
1992 and the respondent’s brief was due November 17,
1992.
The Agency filed its final brief in this matter two weeks after
the scheduled due date.
The decision deadline in this case is
December 22,
1992, therefore this case is to be decided by the
Board at its December 17,
1992 meeting.
The Agency indicates that it is late in filing the final
brief due to other assigned duties, word processor failure and
family illness.
In its motion the Agency notes that it is in the
best interest of the Board to be fully apprised of the issues and
arguments of both parties as set forth in their respective
briefs.
The Agency also contends that the petitioner has been
informed of the delays the Agency has encountered in filing its
brief and has raised no objection.
On December 2,
1992,
Southern Food Park,
Inc.
(SFPI)
filed a
response to the Agency’s motion to file instanter.
SFPI requests
that the Board deny the motion to file instanter or in the
alternative to allow two weeks for petitioner to file a reply
brief to mitigate the undue prejudice created by the extra time
taken by the Agency to file its brief.
SFPI notes that its final brief was filed in accordance with
the briefing schedule set at hearing.
In its response, SFPI
‘This motion was date-stamped on December 1,
1992.
However,
35 Ill.
Adm. Code 101.102(d)
provides that if
a document is
received after the due date, the date of mailing shall be deemed
the date of filing.
O137-Q5~9
mentions that the attorney for respondent was in contact with its
attorney on several occasions informing them of additional delays
in filing the brief but had informed them that the brief would be
filed by November 25,
19922.
SFPI notes that the Agency’s motion
is not supported by affidavit as required by 35 Ill. Adm. Code
101.242(a).
SFPI also contends that the Agency fails to state
why the brief was not filed on time.
SFPI notes that the
incidents that the Agency cites for late filing all occurred
after the due date of the brief.
SFPI also notes that the Agency
does not explain why other attorneys who attended the hearing or
other Agency personnel were unable to assist in the completion of
the brief
in a timely fashion.
SFPI questions the Agency’s need
for a brief when the Agency presented no testimony at hearing.
SFPI notes that the Board has previously expressed concern over
late filings by the Agency.
SFPI notes that the Agency also
filed the record is this matter after the scheduled due date.
SFPI suggests that the Agency does not believe that it is bound
by the Board’s procedural rules regarding filing deadlines.
SFPI
further notes that the Board is under no requirement to consider
the Agency’s brief
in its decision.
SFPI notes that the record
contains sufficient information for the Board to reach its
decision.
The Board is troubled by the lateness of the Agency in
filing the final brief.
The Board is also concerned over the
failure of the Agency to meet scheduled deadlines for filings.
However, the Board does not find the requests by SFPI
appropriate.
The Board does not believe that the petitioner was
unduly prejudiced by the Agency’s delay in filing.
The
petitioner was allowed 35 days from the hearing to submit its
brief.
The Agency was allowed an additional seven days to submit
its brief.
SFPI has presented no specifics on how the Agency
benefitted from the
additional two weeks
it used to file its
brief.
SFPI merely makes a general argument that any additional
time improved the Agency’s brief.
SFPI has not asserted that the
content of the Agency’s brief
is inappropriate, nor has SFPI
asserted that the content of the brief prejudices their case.
The Agency’s delay in filing its brief creates an undue
burden on the Board.
The Agency’s late filing deprived the Board
of needed time to reach its decision.
SFPI’s suggestion to not
consider the brief would only serve to further hinder the Board’s
decision process.
The Board would be required to reach its
determination in this matter without fully considering the
arguments of both parties.
SFPI’s request for two weeks to reply in order to mitigate
any prejudice is impossible for the Board to grant given the
decision deadline in this matter.
The current decision deadline
2The Board nctes that November 25,
1992 was the Wednesday
before Thanksgiving, therefore, November
30,
1992 was the next
working day.
0
I 31-0550
3
requires the Board to issue a final decision in two weeks.
Further,
SFPI does not assert that any prejudice is created by
its inability to reply to the Agency’s brief; SFPI does not
present any particular portion of the Agency’s brief that would
require additional comment.
The Agency’s motion to file its brief instanter is granted.
IT IS SO ORDERED.
Board member R.
C. Flemal dissented.
I, Dorothy H. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above order was adopted on the
~? ~
~
day of
,
1992,
by a vote of
~
~‘~L
,/~
~
Dorothy M./qtinn, Clerk
Illinois P~lutionControl Board
0137-0551