BEFORE
THE POLLUTION CONTROL BOARD
CLERK’S OFFICE
OF THE
STATE OF ILLINOIS
MAR
152004
ILLINOIS AYERS OIL
COMPANY,
)
Pou~onControiBoard
Petitioner,
)
)
V.
)
PCB No. 03-214
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING AND PROOF OF SERVICE
TO:
Dorothy Gunn, Clerk, Illinois Pollution Control Board, James R. Thompson Center,
100
W. Randolph, Suite 11-500, Chicago, IL 60601-3218
Carol Sudman, Hearing Officer, Illinois Pollution Control Board,
1021 North Grand
Avenue East, P.O. Box
19274, Springfield, IL 62794-9274
John
Kim, Illinois Environmental Protection Agency, Division of Legal Counsel,
1021
North Grand Avenue East, P.O. Box 19276,
Springfield,
IL 62794-9276
PLEASE TAKE NOTICE that on March
11, 2004, I sent to the Clerk ofthe Illinois
Pollution Control Board the original
and
nine (9) copies, via U.S. mail, ofPetitioner’s Response
to the Agency’s Objection To
Hearing Officer’s Ruling
and
Motion to
Strike for filing in the
above-entitled cause, a copy ofwhich is
attached hereto..
The undersigned hereby certifies that a true and correct copy ofthe Notice of Filing
together with a copy ofPetitioner’s Response to the Agency’s Objection to Hearing Officer’s
Ruling and Motion to Strike, was served upon the Hearing Officer via U.S. mail and
the
Respondent via U.S.
mail, on the
11th
day ofMarch, 2004.
MOHAN, ALEWELT, PPJLLAMAN & ADAMI
1
North Old Capitol Plaza, Suite 325
Springfield,
IlL 6270 1-1323
Telephone: 217/528-2517
Facsimile: 217/528-2553
THIS
FILII~G
SUBMITTED ON RECYCLED
PAPER
C:\M apa\CSD Environmental\NoticeofFiling031104wpd\crk\3/1 1/04
BEFORE
THE ILLINOIS POLLUTION
CONTROL
BOARIcLERK’S OFACE
ILLINOIS AYERS
OIL CO.,
)
MAR
152004
)
STATE OF ~LLINOIS
Petitioner,
)
Poflution Contro’ Board
)
PCB No.
03-214
Vs.
)
(UST Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
RESPONSE TO
THE AGENCY’S
OBJECTION
TO HEARING OFFICER’S
RULING AND MOTION TO
STRIKE
NOW COMES Petitioner, Illinois Ayers
Oil Company (hereinafter “Petitioner”), pursuant
to Section 101.500(d) of the Board’s Procedural Rules
(35
Ill. Admin.
Code
§101.500(d)),
in
response to the Objection to Hearing Officer’s Ruling and Motion to
Strike, states as follows:
I.
THE AGENCY HAS WAIVED ITS
OBJECTION.
A.
The Agency’s Objection is Waived
Pursuant to the Board’s Procedural
Rules.
The hearing in this matter was held on January 7, 2004,
and the transcript ofthe hearing
was available online on January
12, 2004.
An
objection to
a hearing officer
ruling made at hearing or
any oral motion
to the Board made at hearing will be deemed waived if not filed within 14
days
after the Board receives the hearing transcript.
(35
Ill. Admin.
Code
§
101.502(b))
The Agency filed its “Objection to Hearing Officer’s Ruling and Motion to
Strike” on
March 8, 2004.
By waiting approximately 56 days to
object to
the hearing officer’s ruling made
at the hearing, the Agency has waived any objection.
Given the
120-day decision deadline imposed on this case, the Rule 101.502(b) deadline
is imminently reasonable.
Furthermore, the Agency compounded the problems of delay by
waiting until afterPetitioner had filed its post-hearing brief
An earlier and timely objection
might have provided an opportunity for the brief to take into consideration any outstanding
evidentiary issues.
Such a stratagem is unjust and should not be countenanced.
B.
The Agency’s Objection
is Waived
by
Failing to Present its Relevancy
Objection at Hearing.
At the hearing, the Agency did not object to the proffered depositions on relevancy
grounds.
Instead, the Agency objected to the discovery depositions solely on the grounds that
they were not
evidentiarydepositions.
(Hrg. Trans. at pp.
7-9) By objecting to the admission of
evidence on one
specific ground, the Agency waived other grounds not specified.
People v.
Brown, 275 Ill. App. 3d 1105,
1113
(1St Dist.
1995)
(objecting to
evidence for lack offoundation
and for lack of a proper chain ofcustody constituted waiver ofany objection on grounds of
relevancy).
The Agency appears to place the blame for its omission
on the Petitioner and the Hearing
Officer.
First, the Agency complains that
since these were
discovery depositions, it had no notice
of how they might be used as evidence.
(Objection, at
~J
4; Hrg. Trans.
at p.
8)1
The proper use of
discovery depositions will be discussed in the next section.
Suffice it to
say at this point that the
Illinois Supreme Court has ruled that there is no unfair surprise resulting from the use of
Nor is there any rule that precludes a relevancy objection during a deposition; the
Agency certainlymade such objections.
(~g.,Pet.’s Ex. 4,
at pp. 22) The Board’s procedural
rules merely recognize that the scope of relevant inquirymay be broader prior to trial.
(35
Ill.
Admin. Code
101.617(d))
2
discovery depositions as evidence.
In re Estate ofRennick,
181
Ill. 2d 395, 408
(1998) (“A
party and his or her attorney know at the time of the party’s deposition that any statement made
could be used as an admission.”)
Next, the Agency complains that it did not receive the written
motion
to admit these depositions prior to the hearing.
This is true, but motions made athearing
to admit
evidence are typically made without advance notice and there is no requirement that the
motion even be in writing.
(35
Ill. Admin.
Code
§
101.500(b)) The Agency also
seems to
suggest that it did not know Petitioner intended to
seek to
admit the depositions into evidence.
This is false.
Petitioner unsuccessfully tried to get the Agency to agree to admit the depositions
by stipulation.
(Hrg. Trans.
at p.
6) The Board should reject any inference that the Agency was
unfamiliar with Petitioner’s desire to admit the depositions into evidence in order to
save time.
All of this presupposes, ofcourse,
that the Agency has some entitlement
to know exactlywhat
legal arguments would be used by the Petitioner at the hearing anyway.
Since the Agency’s
attorney attended the depositions, the deposition testimony was the least surprising part of
Petitioner’s case and the least difficult forwhich to prepare.
The Hearing Officer is faulted for not conducting some form ofrelevancy findings at the
hearing.
(Objection,
at
¶
8) This is
ludicrous.
The hearing officer rules on objections; it was not
her province to
read the depositions (or any other documents offered into evidence) in order to
make a relevancy finding.
The Hearing Officer, like a trial judge, is not expected, nor required,
to make evidentiary rulings
sua sponte.
~
Casson v.
Nash, 74 Ill.2d 164,
171
(1978) (“A court
is not required to exclude objectionable evidence absent
an objection.”)
In the cases cited by the
Agency,
a preliminary relevancy finding was not made by the judge.
~
Schaffner v. ChicagQ~
NW. Transp.
Co.,
161
Ill. App.
3d 742,
757
(1St Dist.
1987) (ruling on specific
objection to
3
ielevancy of interrogatory answer);
Skonberg v.
Owens-Coming Fiberglas Corp., 215 Ill. App.
3d
735,
749
(Pt Dist.
1991) (permitting portions of deposition to be read over plaintiffs objection,
while denying other portions deemed duplicative ofprevious testimony).
While a discovery
deposition may be excluded on grounds ofrelevancy, it is the obligation ofthe party opposing
admission of the evidence to
make an objection if a ruling is sought.
The Agency did not object to the relevancy ofthe deposition transcripts at the hearing and
therefore, the Hearing Officer could not have erred in admitting the deposition transcripts.
In
fact, the hearing officer might have committed reversible error by refusing the offered
depositions.
~
Security Savings
& Loan Ass’n v. Commissioner of Savings
& Loan Ass’ns, 77
Ill. App.
3d 606,
610
(31d
Dist.
1979) (hearing officer subject to similar administrative rules
committed reversible error in refusing to admit depositions into evidence).
II.
THE DISCOVERY DEPOSITIONS WERE PROPERLY USED AS
ADMISSIONS
AGAINST A PARTY OPPONENT.
The Agency’s argument to the Hearing Officer was based upon a misconceived notion of
the difference between discovery depositions and evidence depositions.
The term “discovery
deposition” originates from Illinois Supreme Court Rule 212, which specifies the various
purposes to which depositions may be used:
Discovery depositions taken under the provisions of this rule may be used
only:
(1) for the purpose of impeaching the testimony of the deponent as
a witness
in the same manner and
to the same extent as any inconsistent statement
made by a witness;
4
(2) as
an admission
made by a party opponent or by an officer or agent of a
party in the same manner and to the same extent
as any other admission
made by that person;
(3) if otherwise admissible as an exception
to the hearsay rule; or
(4) for any purpose for which an affidavit may be
used.
(S.
Ct. R.
212(a)(emphasis added))
“Different evidentiaryrules
apply to the use of deposition testimony depending on
whether the deponent
is a party.”
In re Estate of Rennick,
181 Ill.
2d
395,
408 (1998).
The
deposition of a nonparty witness is hearsay, which is generally admissible
only for impeachment
purposes.
~
In contrast, “statements
ofa party made during a deposition are admissible as an
exception to
the rule excluding hearsay when introduced by a party opponent.” j~
For this
reason,
“a party and his or her attorney know at the time ofthe party’s deposition that any
statement made could be used as an admission.”
~
While an opposing party mayhave
“preferred” that a deposition be limited
to impeachment purposes, a party is not obliged
to follow
another party’s wishes in the matter.
Security Savings & Loan Ass’n v.
Commissioner of
Savings
& Loan Ass’ns, 77 Ill. App.
3d 606, 612
(3rd
Dist. 1979).
2
It is
for this reason that the Agency cannot admit into evidence depositions of its own
staff
It is common practice for a party to read only favorable excerpts to
thejury, not only for
the sake ofbrevity, but in order to
take strategic advantage of the opposing parties’ inability to
read its
own selection of deposition excerpts.
Nonetheless, it is not error to
read the
entire
deposition to the jury.
~
Rose v.
Cityof Chicago, 317 Ill. App. 1,35
(itt
Dist.
1942) The
potential abuse
from the partial use ofa deposition was reduced in
1956
by the enactment of
Supreme Court Rule 2 12(c), which provides that
“if
only a part of a deposition
is read or used
at the trial by a party, any other party may at that time read or use or require him to read any other
part of the deposition which ought in fairness to be considered in connection with the part read or
used.”
(S.
Ct. R.
2 12(c)) In other words,
it is the partial use ofdepositions which gives rise to
concerns offairness, not their full use.
5
An admission made by a party opponent in a discovery deposition or otherwise is treated
as original or substantive
evidence ofthe truth ofthe statements made or the existence ofany
facts which they have a tendency to
establish.
Security Savings &
Loan Ass’n v.
Commissioner
of Savings
& Loan Ass’ns, 77 Ill.
App. 3d 606, 610
(3’~’
Dist.
1979).
The admissions can be
entered into evidence without prior examination of the deposed witness or any particular
predicate or foundation.
~
It is reversible error
for a hearing officer to
exclude the discovery
deposition of a party opponent from evidence.
~
at 613.
The discovery depositions were admitted into evidence in a manner consistent with
Illinois civil practice.
Even under federal law, which does not distinguish between discovery and
evidentiary depositions, this practice is authorized.
(Fed. R.
Civ. Proc. 32(a)(2) (“The dep3sition
of a party.
.
.
may be used by an
adverseparty for any purpose.”)) The Agency does not argue
that the three deponents were not agents of the Agency and therefore their deposition testimony
was admissible as any otherparty admission.
III.
CONCLUSION.
The Hearing Officer properly admitted the discovery depositions ofthe Agency
employees into evidence as party admissions pursuant to Supreme Court Rule 212.
The
Agency’s belated assertion that there may be irrelevant statements in any ofthese depositions is
belied by the fact that nearly sixty-days from the hearing, the Agency has still
failed to identify a
single irrelevant statement in any of the depositions.
The Agency has no
substantive objection to
any of the deposition testimony; it merely seeks to invent an unprecedented procedural hurdle
6
that would allow one of the Agency employees’s testimony to be
unhindered by prior testimony
taken under oath.
ILLINOIS AYERS OIL CO., Petitioner,
BY:
MOHAN, ALEWELT, PRILLAMAN & ADAMI,
Its attorneys
By
MOHAN, ALE WELT, PRILLAMAN & ADAMI
One North Old State Capitol Plaza
Suite 325
Springfield,
IL 62701
Tele: 217/528-2517
Fax: 217/528-2553
7