ILLINOIS POLLUTION CONTROL BOARD
March
16, 1990
NATIONAL ENVIRONMENTAL
)
SERVICES CORPORATION,
)
Petitioner,
V.
)
PCB 89—129
(Permit Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by
B.
Forcade):
This matter comes before the Board on
a motion for extension
of time filed on February 26,
1990 by National Environmental
Services Corporation
(“NESC”)
in connection with
a petition filed
by NESC to contest permit conditions imposed by the Illinois
Environmental Protection Agency
(“Agency~’)
.
Hearing was held ~
December 13,
1989,
at which time a briefing schedule was entered
requiring that the parties’ briefs be filed by January
19,
1990
and that reply briefs be filed by February
2,
1990.
The Agency
filed its brief on January
19,
1990.
NESC failed to file its
brief on January
19, and failed to file a reply to the Agency’s
brief on or before February
2.
On February 22,
1990 the Board
issued an order stating that the Board would dismiss this matter
on March
8,
1990 unless NESC filed appropriate and supportable
documents by
March
6,
1990.
The motion filed by NESC on February 26,
1990 requests an
extension of time until March 31,
1990 to file its brief.
In
support of its request NESC asserts that
it had been unable to
obtain a copy of the transcript of the hearing.
NESC also
provided an unqualified waiver of the decision deadline until
120
days after the current deadline of March 31,
1990.
The Agency filed
its response to petitioner’s motion for
extension of time on March
2,
1990,
requesting that the Board
deny the motion for extension of time.
The Agency protests that
NESC has not supported its claim concerning the transcript with
any documents,
correspondence or affidavits and that NESC has not
shown that it made
a diligent or good faith effort to obtain the
transcript.
The Agency states that it would be unfairly
prejudiced
if NESC
is permitted to file its brief
at this late
time, having had the benefit of all of the Agency’s legal
theories and arguments, when in fact briefs were due
simultaneously to prevent any undue advantage.
1fl~--443
2
The Board agrees in certain respects with the Agency that
NESC has submitted an inadequate basis for its motion for
extension of time.
The Board also
is concerned that NESC may
have secured an unfair advantage over the Agency by not
submitting its briefs when simultaneously due.
However, the
Agency requested sanction
(denying NESC the right to file
a
brief) would still leave the Board with the obligation to decide
the case, but without the benefit of legal argument from one of
the parties.
A requirement that the Board correctly decide the
case without benefit of informed argument by the parties would
punish the Board,
not the late filing party.
Further, this case does not present the severity of conduct
which would justify severe sanctions.
In Modine Manufacturing
Company v.
PCB,
548 N.E.2d 1145,
Ill.
App.
3d
,
139 Ill.
Dec.
589
(Second District,
1990), the court found that the Board
could impose severe sanctions such as dismissal,
“.
.
.only in
those cases where the actions of
a party show deliberate,
contumacious,
or unwarranted disregard of the
Board’s
authority.”
Here, while there was an untimely late filing by
NESC,
such filing was made by NESC’s affirmative conduct (without
ignoring repeated requests from the Board) and was accompanied by
a motion for extension of time.
In this sense,
this case
presents a substantially different set of facts from those
presented in Modine.
Since the decision deadline has been substantially extended
by NESC,
the Board will grant the motion for extension of time to
file its brief.
NESC’s brief will be due on March
30,
1990. The
Agency is given leave to file a reply brief on or before April
30,
1990.
No other briefs shall be filed.
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
/(~I-
day of
________________,
1990 by
a vote of
.7
/
~
~
~orothy
N.
G~/nn, Clerk
Illinois Po~1/LutionControl Board
109—444