ILLINOIS POLLUTION CONTROL BOARD
    August
    10,
    1989
    KATHY WESTERN AND
    )
    JEFFREY WESTERN,
    Complainants
    v.
    )
    PCB 89-44
    MOLINE CORPORATION,
    Respondent
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Complainant,
    v
    )
    PCB 89—87
    MOLINE CORPORATION,
    Respondent.
    ORDER OF THE BOARD
    (by J. Marlin):
    This matter comes before upon a Motion to Impose Costs and
    to Bar Testimony of Kathy Western and Jeffrey Western filed on
    July 19,
    1989 by respondent Moline Corporation (Moline).
    The
    Western’s response was filed on August
    4,
    1989.
    Moline moves
    the Board
    to impose sanctions upon the Westerns
    for their alleged willful failure
    to appear
    for depositions
    in
    accordance with subpoenas issues by the Hearing Officer.
    On
    July
    7,
    1989,
    the Hearing Officer issued a subpoena against Kathy
    Western ordering her
    to appear
    at the Chicago Office of Moline’s
    legal counsel on July 13,
    1989 and a subpoena against Jeffrey
    Western ordering him to appear
    in Chicago for a deposition on
    July
    14,
    1989.
    Pursuant
    to the Western’s Motion
    to Modify
    Subpoenas,
    the Hearing Officer entered an order
    requiring both
    Kathy Western and Jeffrey Western to appear
    in Chicago for
    depositions on July 14,
    1989.
    The Western’s request
    to change
    the location of the depositions
    to
    St.
    Charles was denied.
    The
    Board notes
    that, under
    its new Procedural Rules effective July
    11,
    1989,
    a witness subpoenaed for
    a deposition may
    be
    required
    to attend only
    in the county
    in which he or she
    resides or
    maintains an office address unless otherwise ordered by the Board
    (35
    Ill.
    Adm. Code 101.260(h).)
    The Hearing Officer should be
    aware of this rule
    in considering
    the location of any rescheduled
    102—45
    —2—
    depositions.
    At approximately 5:00 p.m. on July 13,
    1989, Jeffrey Western
    telephoned Moline’s counsel to let him know that he and Kathy
    would be unable to attend the depositions on July 14,
    1989 and
    asking that the depositions be rescheduled.
    This information was
    left with counsel’s receptionist.
    At 5:14 p.m. that same day,
    Jeffrey Western left a message on counsel’s answering machine
    that the Westerns were unable to attend the deposition the next
    day.
    On the morning of July
    14, 1989, Jeffrey Western spoke with
    Moline’s Counsel stating that neither he nor Kathy would attend
    the deposition and suggesting that a new date be set.
    The procedural
    rules of the Board provide that “tif
    a party
    unreasonably refuses to
    *
    *
    *
    comply with any order entered by
    the Board or the hearing officer,
    including any subpoena issued
    by the Board or hearing officer,
    the Board will order sanctions.”
    (35 Ill. Mm.
    Code 101.280(a).)
    Furthermore,
    the Board has the
    authority to impose costs upon any noncomplying party.
    (Adopted
    Rule:
    Final Order R88—5(A), June 8, 1989.)
    Motions to Impose
    Sanctions are properly directed to the Board only.
    Initially,
    the Board notes that Moline incorrectly
    interprets
    the language in Section 101.280(a) providing that “the
    Board will impose sanctions”
    as depriving the Board of its
    discretion in
    imposing sanctions upon a noncomplying party.
    Moline ignores the language
    in the rule that sanctions will be
    imposed where a party “unreasonably” refuses to comply.
    The
    Board finds
    that the Western’s failure to appear at the scheduled
    deposition
    is not unreasonable, as they made a reasonable attempt
    to notify Moline of their work-related scheduling conflict and
    their desire to reschedule.
    Therefore,
    no sanctions will be
    imposed.
    Respondents Motion to Impose Costs and to Bar Testimony
    is denied.
    IT
    IS SO ORDERED.
    I,
    Dorothy
    M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certify
    t
    t the above Order was adopted on
    the ~
    day of
    ____________________,
    1989, by a vote
    of
    7-o
    Dorothy M. Gu~1n,Clerk
    Illinois Pol~utionControl Board
    102—46

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