ILLINOIS POLLUTION CONTROL BOARD
November
17,
1988
MODINE MANUFACTURING COMPANY,
Petitioner,
v.
)
PCB 87—124
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD
(by J.
Theodore Meyer):
This matter
is before
the Board upon
a November
1, 1988
motion for sanctions
filed
by respondent
the Illinois
Environmental Protection Agency
(Agency),
and
a motion
for leave
to file instanter
filed November
2,
1988 by petitioner Modine
Manufacturing Company (Modine).
On November
16,
1988 Modine
filed
a response to the Agency’s motion for sanctions,
and the
same day the Agency filed
a reply
to that response.
The Agency’s motion
is premised upon Modine’s repeaLed
failure
to timely file its initial brief
in support of
its
petition for review of
a permit denial.
The Agency moves that
pursuant
to
35 Ill.
Adm. Code 107.101(c), the Board,
in the
alternative:
(1)
enter
a judgment by default against Modine and
in favor
of the Agency;
(2)
dismiss
this proceeding with
prejudice;
or
(3)
in the event that Modine’s
initial brief is
filed prior
to a Board ruling on the motion
for sanctions,
strike
Modine’s brief as not being timely filed.
Hearings were held
in this matter on March
9 and
10, 1988,
and the hearing officer by order of March 14,
1988 set a briefing
schedule with Modine’s initial brief
due May
2,
1988.
That brief
was not filed,
and
an
July 15,
1988 the Agency advised Modine
that its brief was eleven weeks overdue.
(See Exh.
B to Agency
motion for sanctions.
)
Counsel
for Modine stated
that the
briefing schedule had been misdocketed,
and told the Agency that
Modine would file
its brief by August
29,
1988.
No brief was
filed by that date.
Modine subsequently advised
the Agency and
the hearing officer
that the delay was due to
the serious illness
of
a close relative of the senior attorney in this proceeding,
and stated that the brief would be forthcoming.
Again,
no brief
was filed.
On October
6,
1988 the Board
on
its own motion entered
an
order resetting
the briefing schedule, with Modine’s brief due on
93—409
—2—
October
27, 1988.
Modine’s brief was not filed
by that date,
and
on Novembet
1
the Agency filed
its motion
for
sanctions.
Modine’s brief was filed
the next day, accompanied by
a motion
for leave
to file instanter.
In that motion for leave
to file
instanter,
and
in its
response to the motion for sanctions,
Modine states that its failure
to meet the October 27 deadline
was due
to the press
of other business,
the absence of the senior
attorney because of
a response
to a spill,
and word processing
malfunction.
Modine contends that
it kept the Agency fully
apprised of these developments.
The Agency denies that it
received any word from counsel
for Modine until
after
the motion
for sanctions was filed with the Board.
After careful consideration of the circumstances of this
case,
the Board will grant the Agency’s motion for sanctions and
dismiss this proceeding with prejudice.
Section 107.101(c)
of
the Board’s procedural
rules
(35 Ill.
Adm. Code 107.101(c))
clearly provides that
the Board may dismiss
a proceeding where
a
party unreasonably fails to comply with
a hearing officer or
Board
order.
Modine repeatedly failed
to file its brief,
although
it often told the Agency that the brief would be filed
soon.
A period of
22 weeks passed between the original due date
set by the hearing officer
(May
2)
and the date that
the Board
issued
its order
resetting the briefing schedule
(October
6).
Although there
are indications that the parties and
(at least
once) the hearing officer
communicated orally,
it
is undisputed
that there was absolutely no contact with the Board
itself during
this period,
nor were there any motions filed with the hearing
officer.
The Board recognizes Modine’s statements that the
briefing schedule had been “rnisdocketed” and
that the senior
attorney’s relative was
ill, but believes that these excuses do
not justify Modine’s failure
to, at the least,
file a motion for
extension of time.
Indeed,
the fact that Modine
is represented
by
a
law firm and not
a sole practitioner gives
rise
to a
question
as
to whether these excuses justify a brief that was
filed
a total
of 26
1/2 weeks after
the original
due date.
Even
after
the Board issued
its October
6 order, Modine failed
to file
its brief until
after
the Agency filed
its motion for sanctions.
Given these circumstances,
the Board believes that Modine’s
repeated failure to file its brief in
a timely manner was
unreasonable.
The Board has been the object of criticism from
many observers for
its perceived failure to
resolve cases
quickly,
and has itself recognized
the need
to tighten its
procedures.
The Board
needs
to control
its docket,
and will not
tolerate the delay
of
a petitioner who files
its brief
261/2 weeks
after the original due date without ever moving the Board
for
an
extension of time,
or even contacting
the Board.
93—410
—3—
Modine’s motion for leave
to file instanter
is denied,
and
the Agency’s motion for sanctions
is granted.
This proceeding
is
dismissed with prejudice.
IT
IS
SO ORDERED.
R.
Flemal dissented.
I,
Dorothy M.
Gunn,
Clerk
of the Illinois Pollution Control
Board,
hereby certi~1,that the above Order was adopted on
the
/7~Tday
of
________________,
1988,
by
a vote
of
________*
A
~Dorothy
M. inn,
Cle’rk
Illinois P9~t1utionControl Board
93—411