BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S OFFTCE
PEOPLE OF THE STATE OF ILLINOIS,
)
SEP
2 4
2003
Complainant,
Pojjutjo,~Contro/ Board
v.
)
No. PCB 01-02
NATIONAL MATERIALS L.P.,
an
)
(Enforcement
-
Air)
Illinois limited partnership,
d/b/a NATIONAL LAMINATION
COMPANY, and NM
I
INC.,
a Nevada corporation,
Respondents.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on the 24th day of September,
2003,
I filed with the Clerk of the Illinois Pollution Control Board a
Response to Respondents’
Motion to Amend the Discovery Schedule,
copies of which are attached hereto and hereby served upon you.
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General of the
State of Illinois
~
,r
~
By:
V ~
(L2iLw~-.—
PAULA BECKER WHEELER
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th Fl.
Chicago, Illinois
60601
(312)
814-1511
Date:
September 24,
2003
THIS FILING IS SUBMITTED ON RECYCLED PAPER.
1
~~1
SERVICE
LIST
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago,
IL 60601
Dorothy M.
Gunn
Clerk of the Illinois Pollution Control Board
100 W. Randolph
Suite 11-500
Chicago,
IL 60601
Michele Sibley Gonzales
Holland & Knight, LLC
181 5. Dearborn Street,
30th
Floor
Chicago,
IL 60603
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD~EC~1VED
CLERK’S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
c~r
~c.P24 2003
Complainant,
)
STATE OFILLINOIS
PoJjut~0,~
Cont
I
No. PCB 01-02
ro
Oarcf
NATIONAL MATERIALS
L.P..,
an
)
(Enforcement
-
Air)
Illinois limited partnership,
d/b/a NATIONAL LAMINATION
COMPANY, and NM HOLDING,
INC.,
a Nevada corporation,
Respondents.
COMPLAINANT’S
RESPONSE TO RESPONDENTS’ MOTION TO
AMEND
THE
DISCOVERY SCHEDULE
Complainant, PEOPLE OF THE STATE OF ILLINOIS,
by LISA
MADIGAN, Attorney General of the State of Illinois,
responds to
Respondents’
Motion to Amend the Discovery Schedule by stating
the following facts:
1.
On July
2,
a Hearing Officer Order was entered setting
the discovery dates on the -case instanter.
All written discovery
was
to by served on or before July 21,
2003; all responses
to
written discovery to be served on or before August
29,
2003;
depositions of all non-experts to be completed by October
17,
2003 and so
forth.
2.
Complainant served written discovery to Respondents
consisting of both a Request
to Produce Documents and
Interrogatories on July 21,
2003,
pursuant to the Hearing Officer
Order.
3.
On or around July 21,
2003,
a further status call was
1
held,
with the Respondents’
attorney and the Hearing Officer
participating by teleconference.
At that time,
both attorneys
representing the parties stated to the Hearing Officer that
discovery was proceeding.
To today’s date,
Complainant has
neither received any written discovery to respond to, nor
received any answers to the discovery served on Respondents on
July 21,
2003.
4.
During the teleconference with the Hearing Officer on
or around July 21, 2003,
Respondents further stated that they
would send the necessary information to submit an inability to
pay claim on a penalty amount.
The list of specific documents
needed to show the claim was faxed to the Respondents on June
4,
2003.
5.
To date, Complainant has not received any documents
pursuant to the June
4,
2003 fax.
On September
17,
2003,
the last
status date with the Hearing Officer, Respondents finally stated
that they would not be submitting any documents and were
withdrawing the request
to consider their inability to pay claim.
6.
On or around September
11,
2003,
in preparation
for a possible Motion to Compel and in view of the upcoming
status date,
Complainant’s attorney called the Respondents’
attorney to inquire about answering the outstanding discovery,
The answers,
at that point,
were two weeks overdue.
7.
During the September
11,
2003,
conversation,
2
Respondents’
counsel,
in essence, said she forgot to tender
discovery by July 21,
2003
as required by the Hearing Officer
Order,
and that she would answer Complainant’s discovery by the
end of the next week.
8.
No calls were made to the Complainant’s attorney about
requesting extensions on discovery,
not on July 21,
2003,
nor
August
29,
2003, deadlines~thatare long past.
The only call
about discovery was made by Complainant’s counsel.
9.
Even taking all of the Respondents’
statements
as true,
they have not given any reasonable explanation for their failure
to propound discovery to Complainant,
complete answers to
properly served discovery,
or failure
to contact Complainant
requesting an extension of time on July 21st,
or August
~
or
any other time.
10.
Respondents’
attorney makes no argument showing good
cause for the delay,
as
is required by Section 101.522
of the
Procedural Rules and Regulations of the Illinois Pollution
Control Board,
35
Ill. Adm.
Code 101.522.
Excuses about office
moves
in March are not relevant to missed deadlines in July and
August,
especially when the time of the first missed deadline
coincides with assurances to the Hearing Officer that discovery
is proceeding.
11.
Respondents further argue that there is no prejudice to
Complainant. Whether or not there is a lack of prejudice tp the
3
opposing party because of the delay does not constitute good
-
cause for failure to respond.
See
Moy v. Ng,793 N.E.2d 919,
276
Ill.Dec.
160,
Ill.App.
1 Dist.,
June 30, 2003.
12.
Respondents make no argument that even attempts to
indicate good cause.
The only possible reason for the failure to
propound discovery is an attempt
to cause unnecessary delay of
the case.
Wherefore,
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
requests that Respondents’
Motion to Amend the Discovery Schedule
be denied.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
ROSEMARIE CAZEAU,
Chief
Environmental Bureau
Assistant Attorney General
By:
)~/~
~
~
PAULA
BECKER
WHEELER
Assistant
Attorney
General
Environmental Bureau
188 W.
Randolph,
20th
Fl
Chicago, Illinois 60601
(312)
814-1511
4
CERTIFICATE OF SERVICE
I,
Paula Becker Wheeler,
an Assistant Attorney General
in
this case,
do certify that
I caused to be served this 24th day of
September,
2003,
the foregoing Response to Respondents’ Motion to
Amend the Discovery Schedule and Notice of Filing upon Michele
Sibley Gonzales by depositing same in an envelope,
first class
postage prepaid, with the United States Postal Service at 188
West Randolph Street,
Chicago, Illinois, and upon Dorothy M. Gunn
and Bradley P. Halloran by hand delivery to the addresses on the
Notice,
at or before the hour of 5:00 p.m.
~
~
PAULAVBECKER WHEELER