BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ILLiNOIS AYERS OIL COMPANY,
)
)
V.
Petitioner,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
NOTICE
PCB No. 03-2 14
(LUST Appeal)
RECE~VED
CLERK’S OFFICE
MAR
082004
STATE OF ILLINOIS
Pollution
Control Board
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 WestRandolph Street
Suite 11-500
Chicago, 1L 60601
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL
62794-9274
Fred
C. Prillaman
Mohan, Alewelt, Prillaman & Adami
Suite
325
1 North Old Capitol Plaza
Springfield, IL
62701-1323
PLEASE
TAKE
NOTICE
that I
have
today
filed with the
office of the Clerk of the
Pollution
Control
Board a MOTION
FOR
EXTENSION
OF TIME TO
FILE
RESPONSE TO
PETITIONER’S
BRIEF and an OBJECTION TO
HEARING OFFICER’S
RULING AN)
MOTION TO STRIKE, copies
of which are herewith served upon you.
Respectfully submitted,
Special Assistant Attorney General
Division of Legal Counsel
1021
North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143
(TDD)
Dated: March
5,
2004
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Assistant Counsel
RECE~VED
CLERK’S OFFICE
BEFORE THE
POLLUTION CONTROL BOARD
MAR
06
2004
OF THE STATE OF ILLINOIS
STATE OF ILLINOIS
•
Pollution Control Board
ILLINOIS AYERS OIL COMPANY,
)
Petitioner,
)
v.
)
PCB No. 03-214
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal)
PROTECTION AGENCY,
)
Respondent.
)
MOTION FOR EXTENSION OF TIME TO FILE
RESPONSE TO PETITIONER’S BRIEF
NOW
COMES
the Respondent,
the
Illinois
Environmental
Protection Agency
(“Illinois
EPA”), by one of its
attorneys, John J. Kim,
Assistant
Counsel
and
Special Assistant
Attorney
General, and, pursuant to
35
Ill.
Adm.
Code
101.522,
hereby requests that
the Illinois Pollution
Control
Board
(“Board”)
grant the Illinois
EPA
an
extension of time within which
to
file its
Response to the Petitioner’s Brief.
In support ofthis motion, the Illinois EPA states as follows:
1.
At the conclusion ofthe hearing held in this case, the parties agreed to a briefing
schedule by which the Petitioner’s brief was due February
9,
2004,
the Illinois
EPA’s
response
was due March 2, 2004, and the Petitioner’s reply, if any, was due March
8, 2004.
2.
The decision deadline in this
case is May
5,
2004.
The date of the nearest Board
meeting (without going past May
5,
2004) is
April
15,
2004.
The Illinois
EPA recognizes that
the Board requests at least 30 days to consider arguments by the parties prior to rendering a final
decision.
3.
The
Petitioner
filed
its
brief in
this
case
in
a
timely
manner.
Unfortunately,
counsel
for the Illinois
EPA is
unable to meet the requisite time
deadline for filing the Illinois
EPA’s response brief.
4.
Since the receipt of the Petitioner’s brief, counsel
for the
Illinois EPA has been
involved
in
a
number of cases
that
have been
extremely time-corisuming.
The
undersigned
1
counsel has prepared and
filed a post-hearing reply brief in
United Disposal of Bradley, Inc.
v.
Illinois EPA, PCB 03-235,
and prepared and filed a number ofdiscovery-related documents and
preliminary motions,
and
also
defended
a
deposition
and
prepared for
and
participated in
a
hearing
in
Saline
County
Landfill,
Inc.
v.
Illinois
EPA, PCB
04-117.
These
time-sensitive
commitments have unfortunately prevented the Illinois EPA from completing its response to the
Petitioner’s brief in the present matter.
5.
Counsel
for
the
Illinois
EPA
deeply
regrets
the
continued
delay
in
filing
its
response
brief,
but
hereby
represents
that
work
on
the
response
brief
has
been
diligently
proceeding,
though such work has been impeded by the afore-mentioned work product in other
cases.
6.
The Illinois
EPA therefore requests that
the Board grant
an
extension of time to
file the response to
the Petitioner’s brief to
March
8,
2004.
The Illinois
EPA would
have no
objection to
the
Petitioner receiving
a
corresponding
extension of time
to
file
its
reply until
March
15,
2004.
This would allow the Petitioner one
additional day to file its reply as compared
to the time originally provided for in the briefing schedule (i.e., seven days versus six days), and
would still allow the Board to receive all briefs within 30 days ofthe final decision deadline.
7.
The Illinois
EPA does not
make this request lightly,
but
unfortunately counsel’s
recent heavy workload necessitates this request.
No further requests for extension oftime will be
forthcoming.
WHEREFORE,
for
the
reasons
stated
above,
the
Illinois
EPA
hereby
respectfully
requests that
the
Board
grant the
Illinois
EPA
an
extension oftime
to
file the response to the
Petitioner’s brief to March 8, 2004.
2
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
•Assistant Counsel
Special Assistant Attorney General
Division ofLegal
Counsel
1021 North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544, 217/782-9143
(TDD)
Dated: March
5,
2004
This filing submitted on recycled paper.
3
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ILLINOIS AYERS OIL COMPANY,
)
Petitioner,
)
v.
)
PCB No. 03-2 14
ILLINOIS ENVIRONMENTAL
)
(LUST Appeal)
PROTECTION AGENCY,
)
Respondent.
)
OBJECTION TO HEARING OFFICER’S RULING AND MOTION TO
STRIKE
NOW
COMES
the Respondent,
the Illinois
Environmental
Protection Agency (“Illinois
EPA”), by one of its
attorneys, John J. Kim,
Assistant Counsel
and
Special
Assistant
Attorney
General, and, pursuant to 35
Iii.
Adm.
Code
101.500, hereby requests that the Illinois Pollution
Control Board
(“Board”) overrule a ruling entered by
the assigned
Hearing
Officer and further
strike
any
reference
to
the
related subject
material
in
the Petitioner’s
post-hearing briefs.
In
support ofthis objection and motion, the Illinois EPA states as follows:
I.
BACKGROUND
1.
On January 7, 2004, the Board held a hearing in the present case.
At the outset of
the hearing, the Hearing Officer asked the
parties whether there were
any
preliminary matters
that needed
to
be
discussed prior
to
the
calling
of the
first
witness
by
the
Petitioner.
The
Petitioner then produced a Motion to Admit Depositions (“Petitioner’s motion”) and served both
the Hearing Officer and counsel for the Illinois EPA with copies ofthe motion; counsel for the
Illinois EPA had not
seen a copy ofthe Petitioner’s motion prior to that time.
2.
The Petitioner’s
motion
sought
to
have
depositions
of Carol Hawbaker,
Harry
Chappel, and Brian Bauer introduced into as evidence.
In support ofthat, the Petitioner cited to
section 101.626 ofthe Board’s procedural rules (35 Ill.
Adm. Code
101.626), Section 10-40(a) of
the
Illinois
Administrative
Procedure
Act
(5
ILCS
100/10-40(a)),
and
rule
212(a)(5)
of the
1
Supreme Court Rules (S.
Ct. R. 212(a)(5)).
The Petitioner further cited to case law it argued was
persuasive on the subject.
3.
All of the cases cited to by the Petitioner are distinguishable and not persuasive to
the
issue at hand.
In the case of Skonberg v.
Owens-Corning Fiberglass
Corp., 215
Ill. App. 3d
735,
576 N.E.2d 28
(1st Dist.
1991), the court considered whether the reading of certain portions
of a deposition transcript of a witness to a jury were
appropriate.
Factually, the Skonberg case is
distinct
because the deposition
transcript was taken of a witness
that testified at the trial itself;
here, the Petitioner
in
lieu
of soliciting
testimony
from
the
identified
Illinois
EPA witnesses
offered the deposition transcripts.
Further,
the Skonberg court noted that
in actuality, the lower
court had ruled that some ofthe portions ofthe transcript sought to
be read to
the jury were not
allowed since they did not constitute admissions.
Skonberg, 215
Ill. App. 3d at 749, 576 N.E.2d
at 36.
4.
In Ogg v.
City of Springfield,
121
Ill. App.
3d
25,
458
N.E.2C1
1331
(4th
Dist.
1984), again there is
a clear factual distinction between that case and
the present case; namely,
the deposition transcript
testimony in question was
from witnesses that
also actually testified at
the
trial.
In
Qgg,
the
deposition
transcript
readings
were
done
in
an
attempt
to
impeach
testimony provided by witnesses at trial.
Qgg,
121
Ill.
App.
3d
at 39-40, 458
N.E.2d at
1340-
1341.
Such was not the case here.
5.
Finally,
in
the matter of Estate
of Lewis
v.
Reeser,
193
Ill.
App.
3d
316,
549
N.E.2d 960
(4th
Dist.
1990), the court expressly did
not reach the question ofwhether there was
error
on
the
part
of the
lower
court
in
admitting
into
evidence
portions
of
the
discovery
deposition in question.
Lewis, 193
Iii. App. 3d at 313, 549 N.E.2d at 964.
2
6.
Compare all
those cases
with the factual situation
at hand,
and it
is
clear that the
findings by
the courts
in the cited
case law
are not applicable here.
In none of those situations
‘was
the
discovery deposition
in
question
offered
as
a
substitute
for
actual
testimony
by
the
deponents at a trial
or hearing.
Further,
in the
Skonberg case, there was an important reference
made for the consideration that for an admission to be
admissible, it must
also be relevant.
See
also,
Schaffner
v.
Chicago and North Western Transportation Company,
161
Iii.
App.
3d. 742,
756,
515
N.E.2d 298, 307
(1st Dist.
1987).
As will be
argued below, that consideration was not
made by the Hearing Officer in allowing admission ofthe discovery deposition transcripts.
7.
Also included in
the case law referenced in the Petitioner’s motion was a citation
to
Saline
County
Landfill,
Inc.
v.
Illinois
EPA, PCB
02-108
(May
16,
2002).
In
the
Saline
County
case,
the
Petitioner
noted
that
the
Board’s
Hearing
Officer
admitted
the
discovery
depositions of three Illinois EPA employees over an opposing objection.
The Board affirmed the
hearing officer’s ruling.
Saline County, p.
3.
8.
Specifically, the Board stated,
“The
Board
affirms
the
hearing
officer’s
allowance
of
the
depositions
as
evidence.Footnotej
The Agency and the County were present to
cross-examine
the witnesses, and the
deposition testimony
explains the administrative record.”
Id.
9.
Looking to
the
transcript
of the
hearing in
Saline
County,
counsel
for
Saline
County
Landfill
asked the Hearing Officer that transcripts taken from
discovery depositions of
certain Illinois
EPA employees be admitted into evidence over the objection from counsel for the
Intervenor and
with the qualified objection from the Illinois EPA.
Saline Cow~ty
Transcript, pp.
8-12.
10.
The Hearing Officer then ruled that the discovery deposition transcripts could be
allowed into
evidence pursuant
to
Section
101.626(d)
of the
Board’s procedural
rules
(35
Ill.
3
Adm.
Code
101.626(d)).
He then limited
the evidence
to
only the
relevant portions.
Saline
County Transcript, p.
13.
11.
Therefore, in Saline County, the Board affirmed the Hearing Officer’s decision to
allow the introduction
into evidence
the
discovery deposition
transcripts
on the basis
that
the
transcripts
were
“Written Testimony.”
Specifically,
Section
101.626(d)
of the Board’s
rules
provides:
Written Testimony.
Written testimony may be introduced by a party in a hearing
only if provided to all other parties of record prior to the date of the hearing and
only after the opposing parties have had
an
opportunity to
object to
the written
testimony
and
to
obtain
a
ruling
on
the
objections
prior
to
its
introduction.
Written
testimony may
be
introduced
by
a party
only
if
the
persons
whose
written testimony is introduced are available for cross-examination at a hearing.
12.
The Hearing Officer’s ruling
in
Saline
County, which was
later
affirmed by the
Board
and
relied
upon
by
the Petitioner
in
the present
case, was
thus
made
pursuant
to
the
finding that the deposition transcript constitutedwritten testimony.
13.
Unfortunately, in the present case, that decision is not appropriate to the facts.
In
this case, the Petitioner made its motion seeking the deposition transcripts’ admission at the very
opening ofthe hearing record.
Neither the Illinois EPA nor the Hearing Officer had received or
reviewed
the
motion
prior
to
the
opening
of
the
record.
Hearing
Transcript,
pp.
7,
10.
Therefore, the Petitioner did not provide the deposition transcripts as written testimony prior to
the date of the hearing.
That portion ofSection
101.626(d) was clearly not satisfied, and reliance
on that provision cannot be made here.
14.
Further,
the Illinois
EPA did not have an opportunity to raise specific
objections
as
to
relevancy
or
other
evidentiary matters
on
the
deposition
transcripts,
nor to
have those
objections heard by the Hearing Officer.
Rather, the Hearing Officer here entered the deposition
transcripts as
evidence, and further ordered that
any portion of the depositions that
constituted
4
admissions
by
the
Illinois
EPA
would
be
deemed
admitted
as
an
offer
of proof
Hearing
Transcript, p.
14.
15.
There
would
have
been
only
two
opportunities
for
the
Illinois
EPA
to
raise
objections
to
the questions posed in the deposition,
with
an
eye towards the possibility that the
transcript of the
deposition
would
later be
offered
into
evidence.
One
would
be
during
the
deposition itself,
and the other would be at the hearing when the transcript
was offered.
In this
case, neither opportunity was allowed.
16.
Pursuant
to
the Board’s
procedural rules,
it would
have been improper
for
the
Illinois
EPA to
pose
objections
to
questions
during
the
deposition
unless
they
related
to
a
privilege.
Section
101.616(e) ofthe Board’s rules
(35 Ill.
Adm.
Code
101.616(e)) provides that
unless
a
claim of privilege
is
asserted, it is
not
a
ground for objection that
the testimony of a
deponent or a person interrogated will be
inadmissible at hearing, if the information sought
is
reasonably
calculated to
lead
to
relevant
information.
Thus,
if the
Illinois
EPA
believed
a
deposition question was either irrelevant or speculative or otherwise improper (forreasons other
thanprivilege), the Board rules expressly provide that such objections cannot be made.
17.
That being the case,
apparently the only other time the Illinois
EPA could try
to
argue each and every objectionable question before the Hearing Officer would be at the time the
motion
was made to
offer the transcripts into
evidence (setting
aside the
fact that
the “written
testimony”
requirements
have not
been
met).
The
deposition
transcript
of Carol
Hawbaker
(entered
into
evidence)
was
101
pages
long,
the
transcript
of Harry
Chappel
(entered
into
evidence) was
77 pages
long,
and the transcript ofBrian Bauer (entered into evidence) was
57
pages long.
5
18.
Thus,
well
over 200
pages
of deposition
transcript
were
entered
into
evidence
with the Illinois EPA given no opportunity to
seek a ruling from the Hearing Officer on whether
any of the questions contained therein sought information that was inadmissible at hearing.
It is
almost without question that contained within all that testimony, there are numerous examples of
testimony that would ãhd could have been objected to had they been posed during the hearing.
19.
After the Hearing Officer ruled
that the deposition transcripts were admitted, she
did
note that
the Illinois EPA could raise
objections
to
the transcript
content
at the end
of the
Petitioner’s
case.
Hearing
Transcript,
p.
16.
However,
that
was
effectively an
impossibility,
since the hearing was scheduled for only one
day,
and
the Petitioner did
not
rest its ease until
well into the afternoon.
Hearing Transcript, pp.
166,
169.
Counsel for the Illinois EPA did not
have time
from the
moment
he received the Petitioner’s motion
to the close of the Petitioner’s
case to review each ofthe over 200 pages of deposition transcript to try to identify objectionable
questions, since the only time not taken up by the hearing itself was a one hourbreak for lunch.
20.
Even if the Illinois EPA had identified objectionable portions,
the time necessary
to
raise those
objections
and for the Hearing Officer to
receive
arguments would not have left
any
time
for
the
Illinois
EPA
to
present
its
case
in
chief.
Therefore,
there
was
no
real
opportunity for the Illinois
EPA to review each line of testimony, compile those objections and
argue them to the Hearing Officer, have the Hearing Officer receive arguments and make rulings,
and
then proceed with the its
case.
Indeed, it
is
quite possible
the Petitioner would have
then
called
more
witnesses
or
sought
more
testimony,
which
would
have
further prolonged
the
hearing.
The
deposition
transcripts
were
not
reviewed prior
to
the
hearing for objectionable
questions,
since there was no reason to believe (up until receipt ofthe Petitioner’s motion at the
start ofthe hearing) that the transcripts would be
offered as evidence.
6
21.
Further,
the
Hearing
Officer
noted
that
any
portion
of
the
deposition
that
constituted
an
admission was
admitted
immediately
as an offer of proof.
However, there was
never any ruling on
what portions,
if any, of the depositions indeed constituted admissions.
It
‘would be
inappropriate for the Hearing Officer and the Board to
abdicate that authority (i.e.,
to
rule
on
evidentiary mafters)
to
the Petitioner and
allow it to determine what
testimony does or
does not constitute an admission.
Yet that
is the exact result of the Hearing Officer’s ruling.
22.
The question of admissibility of a discovery deposition transcript,
already alluded
to
in
the cases
cited to by
the Petitioner and distinguished by the
Illinois EPA
above, warrants
further consideration.
In Schaffner v.
Chicago and North Western Transportation Company,
161
Ill.
App.
3d
742,
757,
515
N.E.2d 298,
397
(1st
Dist.
1987), the court held that
in order for an
admission in a discovery deposition to be admissible,
it must be relevant to the issues.
23.
Here,
there
is
no
specific
finding by
the Hearing
Officer as to
what portions, if
any, of each of the three deposition
transcripts in question was properly
deemed
an admission.
Further,
there is no ruling by the Hearing Officer on
whether any portions ofthe transcripts,
let
alone those that would
have been deemed
admissions,
were relevant.
And as noted above, the
Illinois EPA could not
raise relevancy objections during the
course of the discovery deposition
and was not given any opportunity to
do so prior to the transcripts being admitted.
24.
Given the clear direction in Schaffuer, since there was no finding ofrelevancy nor
a finding as to what portions ofthe transcripts were admissions,
none ofthe content ofany ofthe
deposition transcripts should have been admitted.
25.
In conclusion, the Illinois
EPA argues that
it was been placed into an untenable,
no-win situation.
The Illinois EPA could not raise relevancy objections
during the course ofthe
deposition (pursuant to Board rule), and did not have an opportunity to raise relevancy objections
7
to any or all of the transcript content prior to
the transcripts being admitted into evidence.
The
Hearing
Officer
did
not
make
any
findings
of relevancy
on
any
portion
of the
deposition
transcripts, nor did
she make any findings that
any portions ofthe transcripts were
admissions.
Indeed, it would have been impossible of her to
do
so, since at the time ofher decision she had
not reviewed any portidn ofany ofthe deposition transcripts in question.
Hearing Transcript, p.
10,
26.
Here,
the Hearing Officer clearly based
her decision on the precedent seemingly
set by the Board in Saline County.
She did so without the benefit ofthe transcript ofthat hearing
that explained the Hearing Officer’s decision.
Hearing Transcript, pp.
10,
14.
The determination
in Saline County is not applicable here, since the provision relied upon by the Hearing Officer in
Saline
County (i.e.,
Section
101.626(d)) was not
complied with.
From both a
legal and
factual
standpoint, the Hearing Officer’s ruling was in error)
27.
Therefore, the only reasonable
and possible remedy to this situation
is to overrule
the Hearing Officer’s
decision and
to
strike the deposition
transcripts from
evidence.
Further,
the Board should strike any and
all arguments presented by the Petitioner that rely upon, or refer
to, in any way any portion of the deposition transcripts.
WHEREFORE,
for
the
reasons
stated
above,
the
Illinois
EPA respectfully
requests
that
the
Board enter an order finding in favor ofthe Illinois EPA on this objection and request for relief.
‘Counsel
for the Illinois EPA wishes to make
very clear that he appreciates the difficult position
the Hearing Officer
was
put
in, as
the
motion
from the Petitioner was made
with no
advance warning
and
without adequate supporting
documentation
(i.e.,
the
transcript
of the
hearing).
The
exigent
circumstances
surrounding
the
request by
the
Petitioner were not the doing of the Hearing Officer, and her conduct is not being calledinto question inany way.
8
Respectfully submitted,
ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY
Assistant Counsel
Special Assistant Attor’ney General
Division ofLegal Counsel
1021 North Grand Avenue East
P.O.Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: March
5,
2004
This
filing submitted
on
recycled paper.
9
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on March 5,
2004, I served
true and
correct
copies
of
a
MOTION
FOR
EXTENSION
OF
TIME
TO
FILE
RESPONSE
TO
PETITIONER’S
BRIEF
and
an
OBJECTION
TO
HEARING
OFFICER’S
RULING
AND
MOTION TO
STRIKE,
by
placing
true
and
correct
copies
in properly sealed
and
addressed
envelopes
and
by
depositing
said
sealed
envelopes
in
a
U.S.
mail
drop
box
located within
Springfield,
Illinois, with sufficient First
Class Mail postage affixed thereto,
upon the following
named persons:
DorothyM. Gunn, Clerk
Fred C. Prillaman
Illinois
Pollution Control Board
Mohan, Alewelt, Priulaman & Adami
James R. Thompson Center
Suite 325
100 West Randolph Street
1
North Old Capitol Plaza
-
Suite 11-500
Springfield, IL
62701-1323
Chicago, IL 60601
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box
19274
Springfield, IL
62794-9274
ILLiNOIS ENVIRONMENTAL PROTECTION AGENCY,
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
•
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
