BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
hiVED
~f
~w’~
~
PEOPLE OF THE STATE OF ILLINOIS,
vs.
Complainants,
QC
FiNISHERS, INC., an Illinois
Corporation,)
Respondent.
)
)
)
)
PCB#0l-07
)
(Enforcement-Air)
)
U~4~
NOTICE
OF
FILiNG
To:
Ms. PaulaBecker Wheeler
Assistant
Attorney General
Office ofthe Attorney General
188 West Randolph
Street, 20th
Floor
Chicago,
Illinois
60601
Clerk,
Illinois
Pollution Control Board
100 W. Randolph
Street
State of
Illinois
Center
Suite 11-500
Chicago, Illinois
60601
Mr. Bradley
Halloran
Hearing
Officer
Illinois
Pollution Control
Board
James IL Thompson Center, Suite
11-500
100 W. Randolph Street
Chicago,
illinois
60601
PLEASE
TAKE
NOTICE
that
I have today filed
with
the Office ofthe Clerk ofthe
Pollution Control Board the
original and nine
copies ofa REQUEST FOR BOARD
RULING
ON MOTION TO
STRIKE AND MOTION FOR LEAVE TO FILE A REPLY
AND REQUEST
ThAT
THE BOARD REOPEN ITS SEPTEMBER 18, 2003 DECISION
TO ADDRESS
ALL
TIMELY FILED PLEADINGS on behalfofQC
Finishers, Inc., a
copy ofwhich is hereby
served
upon you.
Dated
October
17, 2003
Heidi E. Hanson
H. E.
Hanson,
Esq. P.C.
4721
Franklin
Aye, Suite 1500
Western Springs, IL 60558-1720
(708) 784-0624
Respectfully submitted,
~44~
IfeidiE.
Hanson
CLERR’S
OFFI~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
oCT
222003
PEOPLE OF THE STATE OF ILLINOIS,
)
Poll
Control Board
Complainants,
.
)
)
PCB#Ol-07
vs.
)
(Enforcement-Air)
)
QC
FINISHERS, INC., an Illinois Corporation,)
)
Respondent.
)
REQUEST FOR BOARD
RULING
ON MOTION.TO STRII(E AND MOTION
FOR LEAVE TO FILE A REPLY and
REQUEST THAT TIlE BOARD REOPEN ITS SEPTEMBER 18,
2003
DECISION
TO ADDRESS ALL
TIMEI1Y
RILED PLEADINGS
NOW COMES Respondent, QC
Finishers,
Inc.,
by
and
through
its
attorney,
IL E.
HANSON ESQ. P.C., pursuant to
35111
Adm.
Code 101.500(a) and (c)
and
asksthe
Board
to
Reopen
its September 18, 2003
ruling to consider all timely filed
pleadings.
1.
On
July
29, 2003 the Respondent filed a Motion for Reconsiderationofthe
Board’s
June
19, 2003
Order.
It
asked,
among
other thingsthat
Board
c1arit~’
several
parts of
its decision, reexamine
a recent
Illinois
Supreme Court
case that
was
contrary
to
cases
cited by the opinion, andreinstate an affirmative defense which
it
had stricken based
onthe
Complainant’s improperattempt
to
revise its Complaint through
its Motionto
Dismiss Affirmative defenses.
2.
On
August
28,2003 the
Complainant filed an
untimely
Response
to
Respondent’s
Motion fur
Reconsideration.
3.
On September 12,2003 Respondent
timely flieda
Motion to
Strike
or in
the Alternative, Motion For Leave to Reply to
Complainant’s Response
to Respondent’s
Motion For Reconsideration (citing the
fuct that
the
Response was tendays late) anda
Replyto
Complainant’s Response
to
Respondent’s
Motion for
Reconsideration.
4.
On September 18, 2003, the Board
entered a three paragraph
order which
was
received by
Respondent’s
attorney
on September 24, 2003.
That
order
did
not
acknowledge the Motionto Strike or in
the Alternative
Motion for Leave to File a Reply,
or the Reply itself
The order did
acknowledge
the
Response, but did not indicate that it
was untimely.
The order
did
not
address
the
requests
fur
clarification
or any of
the issues
raised.
1
5.
The
untimely Response should not have beenaccepted by
the Board.
6.
The Board’s
Order references the Response withoutmentioning that
it was
untimely and, without further discussion, it adoptsthe Response’s blanket allegation
that
the Motion for
Reconsideration did
not
“present any
new
evidence
or assert a
change
in
the
law”
thus it
appearsthat the Response was read and
considered.
7.
Board
Procedural rule 35111. Adm.
Code
101 .522
provides that
the Board
may extend
the
time
for filing a
document only
“fur good
cause shown”,
“on a Motion”
and “after notice to the
opposite party.”
There was
no
good cause shown
for the
late
filing.
There was
no
motion asking
fur
permission
to
file late and there was no notice
of
such a motion.
Therefore the Board should not have
considered
the Response.
8.
The Motion for Reconsideration itselfwas unopposed On
the merits.
The
only
language
in the
Response that addressed the merits was
the
blanket statement quoted
above.
Because the Responsewas untimely filedpursuant
to 35111
Adm.
Code
101.500(d) even
that
objection should have been
deemed
to have been
waived.
9.
Of the eleven defenses
addressed in
the June 19,2003 Board order
the
Motion for
Reconsideration asked
for clarification ofthe order on three defenses
and
asked the Board
to
reexamine its basis
fur ruling on
several other defenses.
The Board’s
September 19,2003
order
does not provide such
clarification
nor does itprovide
any
additional discussion
on the issues.
The Board also did not
explain
how to distinguish its
June 19,2003 order from earlier
and
apparently
contradictory rulings
onseveral issues.
10.
As a result ofthe
Board’s
acceptance of
the
Response it
did not rule
on
the
following
issues,
among others,
andthereby
has left the parties uninformed as to the
meaning and
intent ofits order:
a.
When a facility is not incompliance
with
a rule but falls under an
exemption or alternativeto that rule, can the exemption or
alternative
be pled asa
affirmative
defense
fur
theperiod
after the exemptionor
alternative
becomes applicable to
the facility?
b.
Can an
affirmative
defense to an allegation ofviolation of35111
Adm.
Code
212.316 be stricken on the
groundsthat Complainant
could have, but did not, allege a
violation ofa
different rule, inthiscase 35111 Adm.
Code 212.302?
And, did
the Board
intend
to
strike the affirmative
defense to
section
212.316 or
did it intend
to
strike an
affirmative
defense to section 212.302?
(Count
IV)
c.
Can
a lathesdefense
stand
when a
party
has pled a delay in
asserting a
right
or
only a delay in
bringing suit?
2
d.
Which case establishes the elements
of
estoppel,
the 1998
first
district
appellate case
cited by the Board or the more recent 2001
Supreme Court Case cited in
the
Response
to Motion to
Dismiss
Affirmative Defenses?
11.
The Board’s
three paragraph ruling
represents a departure from
its usual
practice.
Typicallythe Board will rule
on all timely filedpleadings
and
will often assistthe
litigants
by
claril~ring
its
orders
and
distinguishing points of
law
that have
been
brought
into question.
WHEREFORE
Respondent respectfully
requests that
the Board,
1)
strIke
the untimely
Response
or
grant
the Motion for Leave to
File aReply
2)
reopen
its
ruling
onthe Motion fur
Reconsideration, and
3)
consider
and grant its
Motion fur Reconsideration.
Respectfully
submitted,
QC FINISHERS, INC.
By: H. E.
Hanson
Esq. P.C.
Dated October 17, 2003
Heidi E. Hanson
H. E.
Hanson,
Esq. P.C.
4721
Fninklin Aye, Suite 1500
Western Springs, IL 60558-1720
(708) 784-0624
3
CERTIFICATE
OF SERVICE
I,
the undersigned,
certify that I have served
the attached
REQUEST FOR BOARD
RULING
ON MOTION TO STRIKE AND MOTION FOR LEAVE TO FILE A REPLY
AND REQUEST
THAT
THE BOARD REOPEN
ITS
SEPTEMBER
18, 2003 DECISION
TO ADDRESS
ALL
TIMELY FILED PLEADINGS by deposit ina U. S.
Mailbox before
4:00 p.m. on October 17, 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
6060!
Mr. Bradley Halloran
Hearing Officer
Iffinois
Pollution Control
Board
James R.
Thompson Center,
Suite
11-500
100 W. RandolphStreet
Chicago, illinois
60601
Original and nine
copies:
Clerk,
Illinois
Pollution Control Board
100 W. Randolph
Street
State of
Illinois
Center
Suite 11-500
Chicago, Illinois
60601
Dated:
October
17, 2003
HeidiE.
Hanson
H.
E.
Hanson,
Esq. P.C.
4721
Franklin
Aye, Suite
1500
Western Springs, IL 60558-1720
(708) 784-0624
This filing is submitted onrecycled paper.