ILLINOIS POLLUTION CONTROL BOARD
February 18, 1999
LIONEL P. TREPANIER, WES WAGER,
MAUREEN COLE, LORENZ JOSEPH,
MAXWORKS GARDEN COOPERATIVE,
and AVI PANDYA,
Complainants,
v.
SPEEDWAY WRECKING COMPANY and
BOARD OF TRUSTEES OF THE
UNIVERSITY OF ILLINOIS,
Respondents.
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PCB 97-50
(Enforcement - Air, Land, Citizens)
ORDER OF THE BOARD (by K.M. Hennessey):
The University of Illinois (University) demolished a building at 1261 S. Halsted,
Chicago, Illinois. Complainants Lionel Trepanier (Trepanier), Wes Wager (Wager), Maureen
Cole (Cole), Lorenz Joseph (Joseph), Avi Pandya (Pandya), and the Maxworks Garden
Cooperative (Maxworks) allege that in carrying out this demolition, the University violated the
Environmental Protection Act (Act), 415 ILCS 5/1
et seq
. (1996). In particular, complainants
allege that in carrying out this demolition, the University violated the Act’s prohibition against
air pollution and against dumping or depositing waste onto public property. See 415 ILCS
5/9(a), 21(b) (1996).
The University moves the Board to sanction complainants Wager, Cole, Joseph, and
Pandya on the grounds that they refused to be deposed. The University also moves to dismiss
complainant Maxworks because Maxworks has not participated in this case. The Board denies
the motions.
1
PROCEDURAL MATTERS
On March 23, 1998, the University sent notices of deposition to complainants Wager,
Cole, Joseph, and Pandya, scheduling the depositions for April 7 and 8, 1998. Mot. 1, Exh.
A at 2, Att. B. On March 30, 1998, the hearing officer ordered Trepanier’s deposition for
April 10, 1998, and established a deadline of April 30, 1998, to complete depositions. Mot.
1
The University’s motion for sanctions, filed January 21, 1999, is cited as “Mot. 1 at _.”
The University’s motion to dismiss Maxworks, filed January 25, 1999, is cited as “Mot. 2 at
_.”
2
1, Exh A. at 2, Att. C. In an April 1, 1998 letter to the other four complainants, the
University stated that it would schedule their depositions as needed after Trepanier’s deposition
and that the dates included in the March 23, 1998 notices of deposition no longer applied.
Mot. 1, Exh. A at 2, Att. D.
The University states that on April 15, 1998, it began to telephone the other
complainants, with the exception of Pandya, to schedule depositions. The University states
that it spoke with complainant Wager on two occasions but he never provided a date to be
deposed. The University states that it was unable to reach by telephone, or leave a message
for, complainant Cole. The University states that it was unable to reach complainant Joseph
by telephone, but that it left messages. Mot. 1, Exh. A at 3; University’s April 30, 1998
Motion to Compel at 1, Exh. A. The University states that on April 24, 1998, it sent letters to
complainants asking that complainants contact the University by April 28, 1998, to schedule
the depositions. Mot. 1, Exh. A at 3; University’s April 30, 1998 Motion to Compel at 1,
Exh. B.
2
On April 30, 1998, the University filed a motion to compel the depositions of
complainants Wager, Cole, Joseph, and Pandya, citing its alleged efforts to schedule
complainants’ depositions. On June 8, 1998, the hearing officer denied the University’s
motion to compel and closed discovery.
On October 15, 1998, the Board granted respondents’ motion for summary judgment in
part and denied it in part. The Board directed the matter to hearing on complainants’ claims
under Sections 9(a) and 21(b) of the Act regarding the demolition of 1261 S. Halsted. See
Lionel P. Trepanier, Wes Wager, Maureen Cole, Lorenz Joseph, Maxworks Garden
Cooperative, and Avi Pandya v. Speedway Wrecking Company and Board of Trustees of the
University of Illinois (October 15, 1998), PCB 97-50, slip op. at 15.
On December 9, 1998, the hearing officer reconsidered the June 8, 1998 order. The
hearing officer reopened discovery for 30 days to allow the University to depose complainants
Wager, Cole, Joseph, and Pandya. The hearing officer limited the depositions to the issues
that remain in this case under the Board’s October 15, 1998 order.
The University states that on January 4, 1999, it delivered letters to the four
complainants by messenger, asking them to call to arrange times for depositions.
3
Mot. 1 at 2,
Exh D, Att. The University states that it then attempted to contact complainants by telephone
to arrange depositions, but was able to reach only complainant Cole. The University states
that it spoke with complainant Cole on January 5 and 12, 1999, but Cole was unable to
provide a time for deposition. Mot. 1 at 3, Exh. D. The University states that it left
telephone messages for the other complainants. Mot. 1, Exh. D
2
The University’s March 23, 1998 notice of deposition and its letters of April 1 and 15, 1998,
are directed to “Lorenz Lopez,” not Lorenz Joseph.
3
The University’s January 4, 1999 letter is directed to “Lorenz Lopez,” not Lorenz Joseph.
3
The University states that complainant Joseph informed University counsel that he
would be available for a deposition at 5:30 p.m. on January 12, 1999. The University states
that it ordered a court reporter for the deposition, but that complainant Joseph did not appear.
4
Mot. 1 at 3, Exh. D at 2.
University’s Motion for Sanctions
On January 21, 1999, the University filed a motion for sanctions. The University
claims that it has been attempting to depose complainants Wager, Cole, Joseph, and Pandya
for almost ten months. Mot. 1 at 1. The University alleges that the four complainants refused
to be deposed despite the University’s best efforts to schedule depositions. The University also
alleges that complainant Joseph induced the University to expend fees and incur costs for a
deposition and then failed to appear. Mot. 1 at 2. The University maintains that the only way
it can assess the complainants’ claims and prepare a defense is to take complainants’
depositions. Mot. 1 at 2. The University alleges that the four complainants have abused the
discovery process and that the University has been prejudiced. Mot. 1 at 3.
In its motion, the University asks the Board to: (1) dismiss this case as to complainants
Wager, Cole, Joseph, and Pandya, with costs and fees awarded to respondents; (2) hold the
four complainants jointly and severally liable for the University’s alleged costs and fees of
$2,850.50 and order these complainants to pay the University that sum of money before
allowing the case to proceed to hearing; and (3) bar the testimony of the four complainants at
hearing. Mot. 1 at 6.
On February 5, 1999, complainant Wager filed a response to the University’s motion
for sanctions. On February 10, 1999, complainants Joseph and Pandya filed separate
responses to the University’s motion for sanctions. On February 10, 1999, the University
filed a motion for leave to file a reply to these responses. None of complainants’ responses
were timely filed and the Board will not consider them. See 35 Ill. Adm. Code 101.241(b).
The University’s motion for leave to file a reply is therefore denied as moot.
University’s Motion to Dismiss Maxworks Garden Cooperative
On January 25, 1999, the University filed a motion to dismiss complainant Maxworks.
The University asserts that Maxworks has not participated in this litigation since this
enforcement action was filed. The University also states that no attorney has filed an
appearance on behalf of Maxworks. The University argues that as a result, Maxworks has
waived whatever interest it may have had in this litigation. Mot. 2 at 2. The University asks
the Board to dismiss Maxworks from this case under Section 2-615(a) of the Illinois Code of
Civil Procedure:
4
The University states that the deposition was scheduled for January 12 (Mot. 1, Exh. D at 2),
but elsewhere states that it was scheduled for January 11 (Mot. 1 at 3). The University also
states that it was Lorenz Joseph who was to be deposed (Mot. 1 at 3), but elsewhere refers to
its attempts to depose “Lorenz Lopez” (Mot. 1, Exh. D at 2).
4
Motions with respect to pleadings. (a) All objections to pleadings shall be
raised by motion. The motion shall point out specifically the defects
complained of, and shall ask for appropriate relief, such as: that a pleading or
portion thereof be stricken because substantially insufficient in law, or that the
action be dismissed, or that a pleading be made more definite and certain in a
specified particular, or that designated immaterial matter be stricken out, or that
necessary parties be added, or that designated misjoined parties be dismissed,
and so forth. Mot. 2 at 2; 735 ILCS 5/2-615(a).
Maxworks has not responded to the University’s motion to dismiss.
DISCUSSION
The Board addresses the University’s motion for sanctions against complainants Wager,
Cole, Joseph, and Pandya. The Board then addresses the University’s motion to dismiss
Maxworks.
University’s Motion for Sanctions
Section 101.280(a) of the Board’s procedural rules provides as follows:
If a party or any person unreasonably refuses to comply with any provision of
35 Ill. Adm. Code 101 through 120 or fails 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. Adm. Code
101.280(a).
For this provision to apply, the party or person to be sanctioned must have failed to comply
with a Board procedural rule, a Board order, or a hearing officer order.
The University fails to identify any rule or order that complainants have violated. At
best, the University implies that the four complainants violated the hearing officer’s order of
December 9, 1998. Mot. 1 at 2. However, that order merely reopened discovery for 30 days.
The hearing officer did not order these complainants to appear for depositions.
Furthermore, the record reveals that the University did not properly notice the
depositions of the four complainants. While the University served the four complainants with
notices of deposition that scheduled the depositions for April 7 and 8, 1998, the University
canceled those depositions on April 1, 1998. The University never issued new notices of
deposition with new times for the depositions.
5
Absent new notices of deposition, the four complainants were under no obligation to
appear for a deposition. Illinois Supreme Court Rule 206(a)
5
provides in pertinent part as
follows:
(a) Notice of Examination; Time and Place. A party desiring to take the
deposition of any person upon oral examination shall serve notice in writing a
reasonable time in advance on the other parties. The notice shall state the time
and place for taking the deposition . . . . 166 Ill. 2d R. 206(a).
Accordingly, notices of deposition must state the time and place of the deposition. As the
Illinois Supreme Court stated:
An insufficient notice is the same as if none were given, and no authority exists
but that contained in the statute, to take a deposition in a case at law, and to
render it available, the requirements of the statute must be complied with in
every essential part. Hankinson v. Lombard, 25 Ill. 572, 574 (1861).
Because the University failed to prove that any of the four complainants violated a
Board procedural rule, a Board order, or a hearing officer order, Section 101.280(a) does not
apply. The Board therefore denies the motion for sanctions.
University’s Motion to Dismiss Maxworks Garden Cooperative
The University asks the Board to dismiss Maxworks from this case under Section 2-
615(a) of the Illinois Code of Civil Procedure. That section provides:
Motions with respect to pleadings. (a) All objections to pleadings shall be
raised by motion. The motion shall point out specifically the defects
complained of, and shall ask for appropriate relief, such as: that a pleading or
portion thereof be stricken because substantially insufficient in law, or that the
action be dismissed, or that a pleading be made more definite and certain in a
specified particular, or that designated immaterial matter be stricken out, or that
necessary parties be added, or that designated misjoined parties be dismissed,
and so forth. 735 ILCS 5/2-615(a).
While the Board may look to provisions of the Illinois Code of Civil Procedure for
guidance (see 35 Ill. Adm. Code 101.100(b)), the University does not explain which provision
of Section 2-615(a) applies to its motion. The Board assumes that the University considers
Maxworks a “misjoined” party. However, the University cites no case law that suggests that
Maxworks should be considered misjoined because it has not participated in this litigation.
The Board denies the motion.
5
The Board may look to the Illinois Supreme Court Rules for guidance in the “absence of a
specific provision in [the Board’s] procedural rules to govern a particular situation . . . .” 35
Ill. Adm. Code 101.100(b). Such is the case with the contents of notices of deposition.
6
CONCLUSION
For the reasons set forth above, the Board denies the University’s motion for sanctions
and its motion to dismiss.
ORDER
1.
The Board denies the University’s motion for sanctions against complainants
Wager, Cole, Joseph, and Pandya.
2.
The Board denies the University’s motion to dismiss Maxworks.
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 18th day of February 1999 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
