ILLINOIS POLLUTION CONTROL BOARD
March
9,
1989
MODINE MANUFACTURING COMPANY,
)
Petitioner,
v.
)
PCB 87—124
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BO~BD (by
3.
Theodore Meyer):
This matter
is before the Board on
a December
21,
1988
motion to
reconsider filed
by petitioner Modine Manufacturing
Company (Modine).
On January
6,
1989
respondent Illinois
Environmental Protection Agency (Agency)
filed
its response in
opposition
to Modine’s motion.
Modine filed
a motion for leave
to file
a
reply on January 18,
1989.
That motion
is granted and
the reply is accepted.
On January 19,
1989 the Board issued an
order directing
the hearing officer
to
respond
to claims made by
Modine that it properly obtained extensions of the briefing
schedule by oral motion.
The hearing officer
filed his response
on January
26,
1989.
Modine filed
a reply to the hearing officer
response on February
9,
1989.
Modine’s motion
to reconsider
stems
from the Board’s
November
17,
1988 order granting the Agency’s motion for
sanctions and dismissing with prejudice Modine’s petition for
review of a permit denial.
The dismissal was based upon the
Board’s refusal
to tolerate
the delay of
a petitioner who filed
its brief
261/2
weeks after the original due date without ever
moving for an extension of time.
(The specific circumstances
leading
to
the dismissal, and the Board’s reasons
for doing
so,
are set forth
in the Board’s November
17 order
and will
not be
repeated here.)
Modine advances three arguments
in support of
its request
for reconsideration:
1)
that the Board
misapprehended the circumstances of this case;
2)
that the
dismissal
is contrary
to case precedent stating that such
dismissal
is
an abuse of discretion under
the circumstances of
this case;
and
3)
the imposition of the severe sanction
in this
case
is
a radical dep~rture from long—standing Board practice.
The Agency responds
to each of these claims, contending
that:
1)
any “misapprehension” by
the Board of the circumstances of the
case
is attributable
to Modine
and thus
is not a proper basis for
reconsideration;
2)
dismissal of the permit appeal
is
a proper
sanction for Modine’s failure
to comply with
a hearing officer
97—1
r)3
—2—
order
and
a Board order imposing filing deadlines;
and 3)
the
Board did not act arbitrarily in dismissing this proceeding,
and
thus such dismissal
is proper even
if the Board departed from its
usual practice.
After reviewing
these claims, the Board
is unconvinced by
Modine’s arguments and will deny Modine’s motion for
reconsideration.
In support of its argument that the Board
misapprehended the circumstances of the case, Modine reiterates
the chronology of the case, and states that those circumstances
show that counsel
for Modine attempted
in good faith
to file the
brief
in accordance with the deadlines, but was prevented from
doing
so by a combination of pressing
litigation matters,
equipment failures and serious and prolonged health problems
relating to Modine’s senior counsel
and his family.
The Board
is
sympathetic
to the problems encountered by Modine, but cannot
ignore the fact that never during this 26½ week period did Modine
file
a written motion for extension of time or even contact
the
Board.
Indeed, the litany of other “time—sensitive”
litigation
matters which Modine’s counsel gave precedence over this
proceeding leads the Board
to wonder whether Board proceedings
are given a “back seat” because parties believe that the Board
is
not serious about deadlines imposed by the Board
or its hearing
officers.
(Motion to reconsider,
pp.
8—14.)
Modine has
anticipated this point,
and argues that counsel’s conduct
in
seeking continuances from the hearing officer and keeping
the
Agency’s attorney informed show that Modine’s counselts actions
were free from any disregard
or disrespect for the Board.
However,
in his January 30,
1989 letter
to the Board,
the hearing
officer stated
that while Modine’s attorney did contact the
hearing officer
at various times regarding the brief,
“none of
the conversations between counsel
for Modine and myself were
represented
to me as being
‘oral motions’
and no ‘oral
extensions’
were granted by me.”
(Hearing officer response,
p.
1.,)
The record contains no written motions for extension,
and
the hearing officer states that he did not grant any oral
extensions of time.
Given the record,
offset only by Modine’s
claim that
it believed that it had received extensions from the
hearing officer, the Board
finds
that there were
no formal
extensions of the briefing schedule.
Thus, as pointed out
in the
Board’s November
17,
1988 order dismissing this proceeding,
Modine’s brief was filed
261/2
weeks late.
The Board will not
tolerate such delay.
In connection with its claim that dismissal was an abuse of
discretion under
the circumstances of this case, Modine asserts
that the Board’s dism,jssal was done to make
an example of Modine
to encourage other counsel
to adhere
to the Board’s schedule.
This is simply not true.
The Board carefully considered the
circumstances of the proceeding before granting the Agency’s
motion
for sanctions, and found
that Modine’s repeated failure
to
file its brief
in a
timely manner was unreasonable.
Therefore,
97—104
—3—
the Board
imposed
the only realistic sanction available under
35
Ill. Adm.
Code 107.101(c),
and dismissed the proceeding.
This
case
is an appeal, brought by Modine, of the Agency’s denial of a
permit.
Pursuant to Section
40 of the Illinois Environmental
Protection Act (Act),
a permit appeal petitioner has the right
to
final Board action within 120 days.
Ill. Rev.
Stat.
1987,
ch.
l111-h, par.
1040.
However, petitioners often waive that decision
deadline, and Modine has done so
in this case.
One reason
a
decision deadline might be waived
is that a pending permit appeal
acts as a de facto
stay on most enforcement proceedings, allowing
the petitioner
to operate without
a permit.*
Under
the
circumstances of this case, where Modine filed its brief
261/2
weeks
late, without ever moving for
an extension of time,
the
Board does not believe that
a lesser sanction,
such as not
allowing Modine
to file
a reply brief, even begins
to address the
seriousness of Modine’s violation of Board
and hearing officer
orders.
Modine also argues that
the Board should reconsider
its
grant of the Agency’s motion
for sanctions because
its decision
was an unwarranted departure from long—standing practice.
Modine
contends that this case
is undistinguishable from Alton Packaging
Corp.
v.
Pollution Control Board,
146 Ill.
kpp.
3d 1090,
497
N.E.2d 864,
100 Ill.
Dec.
686 (5th Dist.
1986).
However,
the
Board agrees with the Agency that the two proceedings are
distinguishable.
In Alton Packaging,
the appellate court
reversed the Board’s dismissal of variance and site—specific
rulemaking petitions as sanctions for Alton Packaging’s failure
to diligently prosecute the matters.
In reversing the Board,
the
appellate court noted that by dismissing the petitions outright,
the Board had departed from
its prior custom and practice of
first ordering
a matter
to hearing when
it perceives
a delay.
The court stated that administrative bodies are bound by prior
custom and practice in interpreting their
rules
and may not
arbitrarily disregard them.
100 Ill.
Dec.
at 688.
In this case,
Modine’s appeal was dismissed after hearing,
and after Modine
failed
to comply with
a hearing officer and Board—ordered
briefing schedule.
It obviously would have served
no purpose to
order
a hearing
in this case, where
the delay occurred after
hearing and
in violation of specific hearing officer and Board
orders.
The Board does not believe that it has departed from any
*The Board
notes that in some cases,
Section 16(b) of the
Illinois Administrative Procedure Act specifically allows
a
permit appeal petitioner
to continue operating under
the terms of
a prior permit until ~he Board
takes final
action on a permit
appeal.
Ill. Rev.
Stat.
1987,
ch.
1lll/~, par. 1016(b).
The
record implies that Modine did not have
a prior permit, hut the
point remains:
a permit appeal petitioner can sometimes avoid
compliance with stricter requirements by delaying its appeal.
97—105
—4—
prior custom and practice by dismissing the proceeding.
In fact,
the Board
is
unsure if
it has any prior practice
in
a case where
a post—hearing brief was filed
261/2 weeks after
its original due
date,
since
it does not recall ever encountering such a
situation.
In any event, the Board does not find that it acted
arbitrarily in dismissing this proceeding.
The Board also rejects Modine’s contention that it
(the
Board) must issue some type of “warning”
to litigants that the
Board will enforce its deadlines and rules strictly.
The Board
agrees that
it has been liberal
in granting extensions of time,
and
that it has also been liberal
in granting the Agency leave
to
file permit records and variance recommendation instanter.
The
Board must point out, however,
that the Agency
is statutorily
required
to file permit records and variance recommendations.
Ill. Rev.
Stat.
1987,
ch.
llll,~pars.
1037(a),
1040.
Thus,
the
Board questions whether
it has any authority to disallow such
late filings.
The Board also agrees that there are legitimate
reasons why parties must sometimes seek extensions and
leave to
file
instanter,
and that there
is
a need for flexibility in Board
practice.
The Board emphasizes that the sanction imposed
upon
Modine
is based upon the circumstances of this case,
where Modine
filed
its brief
261/2 weeks late,
without seeking
an extension of
time,
in violation of both hearing officer and Board
orders.
The
Board believes that it has no obligation
to “warn” litigants that
existing rules on sanctions will be enforced, where
the Board
views each situation individually.
The Board
notes that in
its February
9 reply to
the hearing
officer
letter, Modine asks the Board
to compare the
circumstances of this case with the circumstances
in Beecher
Development Company,
AC 88—14
(February
2,
1989).
In
Beecher
Development,
the Board
on its own motion allowed the Agency to
file its post—hearing brief
42 days late.
The Agency had
not
moved for
an extension,
nor did
it include a motion
to file
instanter with the brief.
The Board recognizes that its action
in Beecher Development might be viewed
as inconsistent with
its
actions
in this case, but finds that the cases differ
significantly.
First,
the delay
in filing was
42 days
(6 weeks)
in Beecher Development versus
261/2
weeks
in this proceeding.
The
Board views a 42—day delay as serious, but believes that the
42
days does not compare
to
a
261/2 week delay.
Second,
the Agency
brief, though
late, was filed without any reminder.
In this
case, Modine received two telephone calls and one letter
from the
Agency reminding
it of the deadline and
a special order
of the
Board requiring compliance with the deadline.
The brief was
still
late.
Third,
tJ-iis proceeding was dismissed only upon the
Agency’s motion
for sanctions.
No motion
for sanctions was filed
in Beecher Development.
The Board does not believe that its
action
in Beecher Development
in any way excuses Modine’s
violation of hearing officer and Board
orders.
97—106
—5—
In sum,
the Board dismissed this proceeding as a sanction
for Modine’s repeated and unreasonable delay and violation of
hearing officer
and Board orders.
It is undisputed that the
brief was filed
261/2 weeks after
its original due date.
The Board
has determined
that Modine never
received an extension of time
from the hearing officer, and thus rejects Modine’s argument that
the issue on reconsideration is whether
the sanction was properly
imposed based upon Modine’s filing of its brief three business
days after
the deadline established
in the Board
order.
(Reply
to hearing officer letter,
p.
9.)
None of Modine’s excuses
change the fact that hearing officer and Board orders were
repeatedly violated.
(Compare this case with IEPA v.
Elizabeth
Street Foundry,
Inc.,
PCB 86—161
(November
29,
1988), where
the
Board granted respondent’s motion
for extension of
a Board—
ordered filing deadline, based upon health problems in
respondent’s attorney’s
family.)
The sanction
imposed upon
Modine was based upon the repeated violations, and not solely
upon Modine’s failure
to file its brief
in accordance with the
Board—imposed deadline.
The Board finds no reason
to reverse its
earlier determination that Modine’s unreasonable violations of
hearing officer
and Board orders warrants dismissal of the
proceeding.
Finally,
the Agency contends that the dismissal
of this
permit appeal constitutes an adjudication on the merits of this
case, pursuant to Supreme Court Rule 273.
Ill. Rev. Stat.
1987,
ch.
llOA,
par.
273.
The Board is not bound by Rule 273,
and will
not apply it here.
The dismissal
of Modine’s permit appeal
is
not an adjudication on the merits.
IT
IS SO ORDERED.
P.
Flemal dissented.
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify,~at the above Order was adopted on
the
?1Z
day of
_________________,
1989,
by
a vote of
_________
Dorothy
M.
9~nn,
Clerk
Illinois Po~lutionControl Board
97—107