ILLINOIS POLLUTION CONTROL BOARD
June 17, 1999
CENTRAL C&D RECYCLING, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 99-122
(Permit Appeal - Land)
ORDER OF THE BOARD (by K.M. Hennessey):
This case arises out of the Illinois Environmental Protection Agency’s (Agency) denial
of petitioner Central C&D Recycling, Inc.’s (Central) application for a permit to develop and
operate a waste transfer station. Now pending before the Board are Central’s Motion for
Sanctions (Motion for Sanctions), the Agency’s Motion for Leave to File Administrative
Record
Instanter
(Motion for Leave), and the Agency’s Motion to Strike and Alternative
Response to Motion for Sanctions (Motion to Strike). The Board grants the Agency’s Motion
to Strike in part, denies Central’s Motion for Sanctions, and grants the Agency’s Motion for
Leave.
BACKGROUND
Central filed a petition for review of the Agency’s permit denial on February 26, 1999.
On March 4, 1999, the Board accepted this matter for hearing and stated: “Unless otherwise
ordered by the hearing officer, the Agency shall file the record of its review in this matter
within 14 days of notice of the petition.” Central C&D Recycling, Inc. v. Illinois
Environmental Protection Agency (March 4, 1999), PCB 99-122, slip op. at 1 (the March 4
order). The Agency did not file the record within that period.
On May 13, 1999, Central filed the Motion for Sanctions. In the Motion for
Sanctions, Central asks that the Board sanction the Agency for its failure to file the record in
accordance with the March 4 order. Motion for Sanctions at 4. Central states that it had
originally agreed with the Agency that it may not be necessary to file the record because the
parties might be able to agree to stipulated facts.
Id
. at 1-2. Central also agreed to waive the
decision deadline in this case to August 19, 1999, in the hope that the parties would agree to
stipulated facts and accelerate resolution of this case.
Id
. at 2, 3.
By the time Central filed the Motion for Sanctions, the parties had not agreed on
stipulated facts and the Agency had not filed the record. Motion for Sanctions at 3. Central
claims the Agency’s delay in finalizing stipulated facts or filing the record has placed
significant hardship on Central.
Id
. at 4. Central notes that it is under a court order to obtain
2
a permit, and that it cannot accept non-recyclable materials at its facility until it obtains a
permit.
Id
. Central argues that this restriction significantly restrains its operations.
Id.
Central further argues that the Agency has unreasonably delayed these proceedings.
Id
.
Central argues that the Board has power to award sanctions under 35 Ill. Adm. Code
101.280, which provides that “[i]f a party or any person . . . fails to comply with any order
entered by the Board[,] . . . the Board will order sanctions.” Motion for Sanctions at 3. As a
sanction, Central requests that the Board enter a default judgment in Central’s favor and award
Central the attorney fees it incurred to file the Motion for Sanctions and to draft a joint
stipulation of facts.
Id
.
On May 24, 1999, the Agency filed the Motion for Leave, in which it seeks to file the
record
instanter
.
1
In the Motion for Leave, the Agency states that the parties agreed that the
Agency would not need to file the record unless a hearing was necessary. Motion for Leave at
2. The Agency states that the parties reiterated this agreement in a telephone conference call
with the hearing officer.
Id
. The Agency states that it did not file the record because it
believed this agreement was still in effect.
Id
. The Agency argues that Central will not be
prejudiced if the Board grants the Motion for Leave.
Id
. Central did not respond to the
Motion for Leave.
On May 26, 1999, the Agency filed the Motion to Strike. The Agency moves to strike
the Motion for Sanctions because it does not comply with 35 Ill. Adm. Code 101.242(a),
which provides that “[f]acts asserted which are not of record in the proceeding shall be
supported by affidavit.” Motion to Strike at 1. In the alternative, the Agency reasserts the
arguments that it made in the Motion for Leave and argues that sanctions are not appropriate.
Motion to Strike at 2-12. Central did not file a response to the Motion to Strike.
DISCUSSION
As an initial matter, the Board grants the Motion to Strike in part. Paragraphs 4, 5, 6,
7, 8, 11, 12, 13, 14, and 15 generally recite facts regarding Central’s agreement with the
Agency regarding the filing of the record; Central’s attempts to reach agreement with the
Agency on stipulated facts; the Agency’s failure to agree to stipulated facts; the effect on
Central of that failure, and of the Agency’s failure to timely file the record; and Central’s
facility. The facts recited in these paragraphs are not of record and are not supported by
affidavit, as Section 101.242(a) requires. The Board therefore strikes those paragraphs.
However, the Motion for Sanctions remains viable. It asserts that the Board ordered
the Agency to file the record within 14 days of its notice of the petition, and that the Agency
has not done so. Motion for Sanctions at 1, 3. These facts are of record and allow the Board
to consider the Motion for Sanctions. See People v. Shell Oil Company (September 17,
1
The Board notes that the Agency attached a copy of the record to the Motion for Leave,
which the Agency filed on May 24, 1999. The Board received another copy of the record on
May 25, 1999. The Board construes the Motion for Leave to relate only to the record attached
to the Motion for Leave filed on May 24, 1999.
3
1998), PCB 97-30, slip op. at 2 (striking a factual allegation in a motion to dismiss not
supported by an affidavit, but refusing to deny the motion on those grounds).
In its response to the Motion for Sanctions, which is supported by affidavit, the Agency
argues that the parties’ agreement regarding the record, and their discussion of that agreement
in the hearing officer’s presence, constitute “substantial compliance” with the March 4 order.
Motion to Strike at 8. The Board disagrees. The March 4 order granted the hearing officer,
not the parties, authority to modify the order. The hearing officer did not do so; therefore, the
order stands, and the Agency has violated it.
In this case, however, sanctions are not warranted.
2
Central acquiesced in at least some
of the delay, and the Board cannot find that any hardship or prejudice has resulted from the
Agency’s violation. See People v. Scrap Tire Recycling Center, Inc. (January 21, 1999), PCB
98-17, slip op. at 2 (refusing to impose sanctions on respondents for their late responses to
discovery requests, noting that respondents had since complied and petitioner suffered no
prejudice from the delay). The Board therefore denies the Motion for Sanctions.
Central does not oppose the Agency’s Motion For Leave, and the Board will grant the
Motion for Leave to ensure that there is a complete record. This order does not mean,
however, that the Board will continue to accept records sought to be filed
instanter
, or decline
to impose sanctions in future cases. If the Agency cannot timely file the record, the Agency
should seek leave to extend the time to file the record before the time to file the record has
expired.
In summary, the Board grants the Agency’s Motion to Strike in part, denies Central’s
Motion for Sanctions, and grants the Agency’s Motion for Leave.
IT IS SO ORDERED.
2
Even if sanctions were warranted, the Board notes that it cannot award attorney fees as a
sanction. See ESG Watts, Inc. v. Illinois Pollution Control Board, 286 Ill. App. 3d 325, 339,
676 N.E.2d 299, 308-309 (3d Dist.), appeal denied, 173 Ill. 2d 684 N.E.2d 1335 (1997).
4
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 17th day of June 1999 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
