RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLER1~S
OPPr~
NOTICE OF
FILING
To:
Ms. Paula Becker Wheeler
Mr. BradleyHafloran
Assistant Attorney General
Hearing Officer
Ofilce ofthe Attorney General
Illinois Pollution ControlBoard
188 West Randolph Street, 20th Floor
James R.
Thompson Center, Suite 11-500
Chicago, Illinois
60601
100
W.
Randolph Street
Chicago, Illinois
60601
Clerk, Illinois Pollution ControlBoard
100 W. Randolph Street
State ofIllinois Center
Suite 11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution ControlBoard the original and nine copies ofa MOTION TO STRIKE ORIN
THE ALTERNATIVE, MOTION FOR LEAVE TO REPLY TO COMPLAINANT’S
RESPONSE TO RESPONDENT’S MOTION FOR RECONSIDERATION and REPLY
TO COMPLAINANT’S RESPONSE TO RESPONDENT’S MOTION FOR
RECONSIDERATION on behalfofQC Finishers, Inc., a copyofwhich is hereby served
upon you.
Respectfully submitted,
Heidi
.
Hanson
Dated
September
12, 2003
Heidi B. Hanson
H.
E. Hanson, Esq.
P.C.
4721
Franklin Aye, Suite 1500
Western Springs, IL
60558-1720
(708) 784-0624
PEOPLE OF THE
STATE OF ILLINOIS,
)
Complainants,
)
)
PCB#01-07
vs.
)
(Enforcement-Air)
)
QC FINISHERS, INC., an Illinois Corporation,)
Respondent.
)
SEP
1
5
2003
STATE OF
IWNOIS
Pollution Control Board
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
ECEIVE~J~
CLERK’S OFFICE
PEOPLE OF THE STATE
OF ILLiNOIS,
)
)
SEP
152003
Complainants,
)
~1ATEOF ILLINOIS
vs.
)
(Enforcement-Air)
Pollution
Control Board
)
QC FINiSHERS, INC., an Illinois Corporation,)
)
Respondent.
)
MOTION TO STRIKE
OR IN THE ALTERNATIVE,
MOTION FOR LEAVE TO
REPLY
TO COMPLAINANT’S RESPONSE
TO RESPONDENT’S MOTION FOR RECONSIDERATION
NOW COMES Respondent,
QC Finishers, Inc.
by and through its attorney,
H. E.
HANSON ESQ. P.C., pursuant to 35
III Adm.
Code
101.500 and moves the Board to
strike Complainant’s Response to Respondent’s Motion for Reconsideration or, in the
alternative, to grant it leave to
file a Reply.
in support ofits motion Respondent states as
follows:
MOTION TO STRIKE
1.
On July 29, 2003 Respondent timely filed its Motion for Reconsideration of
Board Order in this matter.
Copies were mailed to the Board’s Clerk, the Hearing Officer
and the Assistant Attorney General all on the same day.
2.
The Motion was received by the Board’s Clerk on July, 31, 2003.
Certified
mail receipts (attached) show that copies were received by the Hearing Officer on July 30,
2003 and
by the Assistant Attorney General on August 4, 2003.
3.
Board rules 35 III Adm Code
101.520(b) and
101.500(d) provide that the
response to a motion for reconsideration must be
filed within 14
(fourteen’) days after the
filing ofthe motion.
4.
On August 28, 2003
Complainant filed a “Response to Respondent’s
Motion for Reconsideration ofthe Board’s June 19, 2003 Board Order.”
5.
Complainant’s Response was ified 24 (twenty four) days after the date that
Complainant received the Motion, therefore it was 10
(ten) days late.
6.
Complainant’s response was not accompanied
by either a motion for leave
to file instanter or a motion for extension oftime.
2
7.
No explanation ofthe substantial delay was offered and no good cause for
the delaywas
shown, therefore pursuant to
35 III. Adm.
Code
101.522 there is no basis on
which an extension could have been granted.
8.
Respondent has been prejudiced by the late filing ofthis Response in that
had
Respondent filed it on time, the Board could have considered Respondents Motion for
Reconsideration at the September 4, 2003 Board meeting and the parties could have
proceeded with depositions sooner and could have reviewed discovery produced to date
with a better understandingofthe points at issue in this proceeding.
WHEREFORE Respondent respectfully requests that the Board strike
Complainant’s untimely response.
MOTION FOR LEAVE TO FILE A REPLY
9.
In the alternative, if the Board
does not strike the Complainant’s late-filed
Response, the Respondent requests leave to replyto it pursuant to 35 III Adm.
Code
101.500(e).
10.
A reply is necessaryto avoid material prejudice to the Respondent in that
the Response raises new issues not covered
in the Motion for Reconsideration.
11.
The Response argues first, that the Motion for Reconsideration is not ripe
and therefore the Board is without authority to review it and second, that the Board may
not reconsider its order for any reason other than new evidence or a change in the
law.
12.
Ifthe Board does not permit Respondent to reply, Respondent will not be
able to present opposing arguments on those issues, which were raised for the first time in
Complainant’s Response.
WHEREFORE Respondent respectfully requests that the Board grant it leave to
replyto
Complainant’s Response.
Respectfully submitted,
QC FINISHERS, INC.
By: H.
E. HansonEsq. P.C.
Dated September
12, 2003
Heidi E. Hanson
Heidi E.
Hanson
H. B. Hanson, Esq. P.C.
4721
Franklin Aye, Suite 1500
Western Springs, IL 60558-1720
(708) 784-0624
~SSosta1ServiceTM
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK’S
OFFICE
PEOPLE OF THE STATE OF ILLiNOIS,
)
SEP
152003
Complainants,
)
STATE OF ILLINOIS
)
PCB
#
01-07
Pollution
Control Board
vs.
)
(Enforcement-Air)
)
QC
F1MSHERS, INC., an Illinois Corporation,)
)
Respondent.
)
REPLY
TO COMPLAINANT’S RESPONSE TO
RESPONDENT’S MOTION FOR RECONSIDERATION
NOW COMES
Respondent, QC Finishers, Inc., by and through its attorney, H. E.
HANSON ESQ. P.C., pursuant to
35
III Adim
Code 101.500(e) and for its replyto
Complainant’s Response to Respondent’s Motion for Reconsideration states as follows:
1.
On July 29, 2003 Respondent filed a Motion for Reconsideration ofthe
Board’s June
19, 2003
order striking several ofRespondent’s affirmative defenses.
2.
The Motion, among other things asked the Board to c1aril~,r
that the opinion
did not foreclose the use ofnonaflirmative defenses, requested that the Board reexamine a
recent Illinois Supreme Court case that was contrary to cases cited by the opinion, and
noted that the Board had decided to strike an affirmative defense based on alleged violation
ofa Board rule which had not been alleged in the
Complaint.
3.
On August 28, 2003 the Complainant filed a response to Respondent’s
Motion for Reconsideration ofthe Board’s Order ofJune
19, 2003 (hereinafter “the
Response”).
4.
The Response does not actually answer any ofthe points raised in the
Motion for Reconsideration, so Complainant
is deemed to have no
argument with the merits
ofthe motion.
See 35 Ill. Adm.
Code 101.500(d).
5.
Complainant’s Response instead takes issue with the Board’s authority to
hear the motion for reconsideration and with the factors the Board may consider in ruling
on the Motion.
The Board Has the Authority to Reconsider Orders Striking Affirmative Defenses.
6.
The Response begins by arguing that the Board does not have the authority
to reconsider any order other than an order that terminates the entire proceeding.
Response
pages land 2.
7.
This argument misreads 35 III Adm. Code
101.520.
That rule states in
pertinent part,
a)
Any motion
for reconsideration or
modification of a final Board
order
must
be
filed
within 35
days
after receipt of the
order...c)
A timely filed
motion
for
reconsideration or
modification
stays
the
effect
of the
final
order.”
(emphasis added).
8.
The term “final order” is defined as an order “that terminates the
proceeding”.
35 Ill Adm.
Code
101.202.
The term “final Board order” is not defined.
The
difference in wording within the same rule is significant.
9.
In the
first subsection the Board is simply establishing deadlines for motions
to reconsider.
In the second quoted subsectionthe Board is addressing the need to
stay a
decision which disposes ofthe proceeding.
(Such a stay would typically not be necessary
for an order dealing with affirmative defenses.)
Therefore the written order must be
finalized beforethe deadline for filing a motion for reconsideration begins to
run, but the
Board only provides an automatic stay for those orders that terminate a proceeding.
10.
In addition 35 III Adm Code 101.908 allows for interlocutoryappeal of
Board decisions.
It would seem unlikely that the Board would adopt a blanket refusal to
reconsider all interlocutory matters, because in taking a second look at the law it might
reconsider and thereby avoid an injustice and/or an expensive and time-consuming appeal.
11.
Complainant also
ignores a line ofcases in which the Board has reconsidered
orders
which were not “final orders” as defined in 35 III Adm Code
101.202.
12.
In People v. Panhandle Eastern, PCB 99-191, 2001 Ill ENV LEXIS 496
(October
18, 2001) the People, in an argument
directly opposed to their current position,
moved the Board to “reconsider its February 1, 2001
order in which the Board affirmed the
hearing officer’s ruling to exclude the People’s Exhibit
5
from evidence.”
2001
IllENV
LEXIS 496 at *4
The Board considered the motion and denied it on the merits. Id at
*4
-
*6
2
13.
InPeople v.
Community Landfill Company, PCB 97-193 (July 26,
2001), the
iBoard granted Respondent’s motion forreconsideration ofsummary judgment ofone of
twelve counts and in Revisions to AntidegradationRules, ROl-13, (February 21,
2002) slip
op at 2, the Board granted a participant’s motion to reconsider a second notice (non-final)
order.
14.
The most intriguing case to address the issue is People v.
Skokie Valley
Asphalt, PCB 96-98, in which two motions for reconsideration were filed.
The first motion,
filed by the People, asked the Board to reconsider an order denying a motion for summary
judgment.
Id, Board Order ofAugust 9, 2001.
The Board granted the motion.
Later,
in
the same proceeding Skokie Valley filed a motion asking the Board to reconsider an order
striking two
affirmative defenses.
The People, in a response virtually identical to the
Response they filed in this proceeding, argued that Skokie Valley’s motion for
reconsiderationwas not ripe.
The Board rejected the People’s argument and
considered
Skokie Valley’s motion for reconsideration ofthe affirmative defenses.
Id5 Board Order of
July 24, 2003.
15.
Apparentlythe “ripeness issue” has not discouraged the People from filing
motions to reconsider Board orders that did not terminate the proceedings, when the People
found it expeditious to do so.
Panhandle Eastern,
Skokie Valley.
It is surprising that they
attempt to raise this specious issue when their opponents
file the same motions.
16.
Even ifthe Board were to depart from its previous reading of 101.520,
motions to
reconsider orders that do not terminate the proceeding would
still be allowable
pursuant to Board rule,
35 Ill. Adim
Code 101.500, which states that the “Board may
entertain any motion the parties wishto ifie that is permissible under the Act or other
applicable law, these rules, or the Illinois Code ofCivil Procedure.”
17.
In conclusion, the Board has already rejected Complainant’s ripeness
argument.
The Board has the authority under 35
III. Adm Code
101.520, and on several
recent occasions has used that authority to reconsider orders that did not terminate the
proceeding.
Even if the Board were to
reverse its prior position on
10 1.520 there is
sufficient support pursuant to 35 Ill. Adm.
Code 101.500 forthe Board to entertainthe
Motion for Reconsideration in this case.
TheBoard Has Broad Authority to Reconsiderits
OrdersFor WhateverReasons it Deems
Appropriate.
18.
Complainant also argues that failure to show either new evidence or a
change in the law should defeat the Motion.
19.
Complainant cites only to 35 Iii Adru. Code
10 1.902 as authority forthis
proposition.
3
20.
Board rule 101.902 states that
“in ruling upon a motion forReconsideration,
the Board will consider factors including new evidence, or a change in the law.”
(emphasis
added).
21.
Complainant’s reading of 101.902 appears to ignore the underlined phrase.
it is apparent from the wording ofthe rule itselfthat “new evidence” and “changes in the
law” were not intendedto be the exclusive factors for reconsideration.
Rule 101.902
merely lists them as examples offactors which can be considered.
22.
As the Board stated in People v. Community Landfill Company, PCB 97-193
(July 26, 2001) slip
op at 3,
“In ruling upon a motion for reconsideration, the Board will consider factors
including new evidence, or a change in the law, to
conclude that the
Board’s
decision is in error.
35
III. Adm.
Code
101.902.
In addition, the Board will
consider errors in its application oflaw.” (emphasis added)
23.
The Board has also recognized frequently in case law that the factors may
include “errors in the court’s previous application ofexisting law”
citing with approval
Korogluyan v. Chicago Title & Trust Co., 213
III. App.3d, 627,
572 N.E.2d
1154,
1158
(1st Dist.
1992), in a numberof its own opinions.
MeDonough v. Robke, PCB 00-163
(Sept.4, 2003) slip op. at 2.
People v.
Skokie Valley Asphalt,
PCB
96-98, (July 24, 2003)
slip op. at 2.
Broderick Teaming Companyv. Illinois EPA, PCB 00-187 (June 21, 2001)
slip op at
1.
Illinois EPA v. Goodwin, AC 02-17 (October 3, 2002).
24.
In conclusion, the Complainant’s attempt to read the word
including” out
ofBoard rule
101.902 must fail.
The Board has stated frequently, and as recently as two
weeks ago
(McDonough), that it willrecognize factors other than new evidence and
changes in the law as a basis for reconsideration.
WHEREFORE Respondent respectfully requests that the Board
consider and grant
its Motion forReconsideration.
Respectfully submitted,
QC
FINTSHERS, INC.
By: H. E.
Hanson Esq. P.C.
Dated September 12, 2003
Heidi E.
Hanson
Heidi E. Hanson
H. E. Hanson, Esq.
P.C.
4721
Franklin Aye, Suite
1500
Western Springs, IL 60558-1720
(708) 784-0624
4
CERTIFICATE OF SERVICE
I, the undersigned, certit~r
that I have served the attached MOTION TO STRIKE
OR IN
THE ALTERNATIVE, MOTION FOR LEAVE
TO REPLY TO COMPLAINANT’S
RESPONSE TO RESPONDENT’S MOTION FOR RECONSIDERATION and REPLY
TO COMPLAiNANT’S RESPONSE TO RESPONDENT’S MOTION FOR
RECONSIDERATION by deposit in a U. S. Mailbox before 4:00 p.m. on September
12,
2003 upon the following persons:
One copy:
Paula Becker Wheeler
Assistant Attorney General
Office ofthe Attorney General
188 West Randolph Street, 20th Floor
Chicago, Illinois
60601
Mr. BradleyHalloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois
60601
Original and nine copies:
Clerk, Illinois Pollution Control Board
100
W.
Randolph Street
State ofIllinois Center
Suite 11-500
Chicago, Illinois 60601
Dated:
September 12, 2003
Heidi E.
Hanson
H.
E.
Hanson, Esq. P.C.
4721
Franklin Aye, Suite
1500
Western Springs, IL 60558-1720
(708) 784-0624
This filing
is submitted on recycled paper.