BEFORE THE ILLINOIS POLLUTION CONTROL BOARDR E C E
~V ED
CLERK’S OFRCE
PEOPLE OF THE STATE OF ILLINOIS,
)
OCT -82004
Complainant,
)
STATE OF
ILLJNO$S
Pollution Contro’ Board
v.
)
PCB
97-2
)
(Enforcement)
JERSEY SANITATION CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
RESPONSE
TO MOTION FOR
SANCTIONS
NOW COMES Respondent, JERSEY SANITATION CORPORATION, through its
undersigned
attorney, and hereby submits its response to the “Motion for Sanctions, Request to
Close Record” filed by Complainant.
Respondent states as follows:
1.
Complainant has filed a motion contending that a “sanction” should be imposed
against Respondent to prohibit Respondent from filing a closing brief.
2.
In June 2003 the hearing officer scheduled the hearings in this
case. Pursuant to that
schedule, hearings began on September 23, 2003.
Just four days earlier, on
September
19, 2003
(three months afterthe hearing officer had established the
schedule), Complainant tendered to Respondent an “amended” opinion
witness
disclosure that for the first time raised an
issue concerning groundwater at the facility.
Hearings were held an
September 23
and 24, and
the hearing officer denied
Respondent’s motion
to bar testimony and documentary submissions by Complainant
on the new issue; however, because of the surprise to Respondent, the hearing officer
permitted Respondent to identify new evidence to respond to Complainant’s new
evidence.
3.
Transcripts of the first two
days of hearing, which
constituted the largest portion of
hearings, were available to the parties by October 7,
2003.
4.
Rather than proceeding
with the reconvened hearing on October 17, 2003,
Complainant requested, and the hearing officer granted, leave to depose the two
witnesses identified by Respondent to
respond to
Complainant’s new issues.
These
depositions were the first and only depositions conducted by Complainant in this
case; aside from the issue raised by Complainant’s tardy disclosure,
all other evidence
had been introduced in the case prior to these two depositions.
5.
In December 2003 the hearing officer scheduled the reconvened hearing to be
held on
January
13, 2004.
Hearing was held that day, at the conclusion of which all parties
rested.
The hearing officer set a schedule requiring Complainant’s closing brief to be
filed on or before March
15,
2004.
6.
Complainant did not file any brief until April
19, 2004, and at that time she filed a
motion for leave to file instanter as a result of the extreme length (138 pages) of
Complainant’s brief.
7.
By order entered on September 29. 2004, the hearing officer granted Complainant’s
motion for leave to file the brief.
8.
Respondent recognizes and apologizes for the inability to
complete the brief prior to
the date of this response.
Throughout the preceding months Counsel has anticipated
stretches of time sufficient to draft the brief; however, without exception emergencies
have arisen with
other of Counsel’s cases, or other projects have interfered, which
have kept Counsel from attending to
the brief.
Among other things, Counsel has filed
more than a dozen briefs
or related pleadings with various courts, some on expedited
briefing schedules,
since June.
In addition, Counsel has been required to attend to
numerous matters with non-waiveable (i.e.,jurisdictional) deadlines, some with this
Board,
some with
various courts.
In addition to all
this, Counsel’s ability to timely
and efficiently draft and file his legal work product has been affected
negatively by a
complete turnover in Counsel’s staff that occurred this
summer; only now has the.
staff begun to fully come up to speed with the demands of Counsel’s practice.
9.
Complainant’s motion also identifies circumstances that have interfered with
Counsel’s finalization of the brief.
As Complainant notes, the long delay since the
September 2003 hearings has meant that Respondent must “re-familiarize himselfj,
once again, after the passage of time, with the extensive record that exists
in this
matter, including
all facts and argument.”
(Complainant’s motion, at 2, para.
8).
Through no fault or cause of Respondent, by the time Complainant filed its
brief on
April
19, 2004,
seven months had already passed since the original hearings, and
three months had passed since the reconvened January hearing.
In addition,
Respondent has been faced with the daunting length ofComplainant’s brief, as well
as the uncertainty with respect to its filing.
10. Respondent’s motion contains a number of inaccuracies or misleading suggestions.
Although Complainant’s briefwas filedfive weeks after its original due
date, it was
filed a full six months after the availability of the transcript ofthe first hearing days
(in which ninety percent of this case’s evidence was submitted).
The record was
completed on January 13, 2004,
which was four months before Complainant
submitted its
brief.
And the brief was
not
“filed” until September 29,
2004; prior to
that date, Complainant’s motion for leave to file the overlength brief had not been
allowed.
11. Most significantly, Complainant misstates the delays previously caused in this
case.
The complaint was originally filed against Respondent in
1997.
In June 2003 the
hearing officer set the case for hearing to begin September 23.
Despite all that
available time, Complainant waited until September 19, 2003,
to
identify what
Complainant believes to
be critical opinions to support its
complaint.
Every action
taken by Respondent from that point forward was a reasonable effort to
defend
against the new and
surprise opinion submitted by Complainant.
12. In any event, it is beyond question that this
case is ready for final preparation for this
Board’s disposition.
Respondent requests that this
Board not impose the “death
penalty” requested by Complainant, partly because it would be inequitable to
Respondent to
preclude its
Counsel from filing a response brief merely because
Counsel has been extraordinarily busy, partly because the delay has not been entirely
the fault of Respondent in any event, but rather Complainant is directly responsible
for a large share, and partly because, in point offact, no brief to
which Respondent
was to respond had been filed until recently.
13.
Respondent instead requests
that it be
granted until October 22, 2004—just over two
weeks after the submittal of this response—as a final deadline within which for
Respondent to
file its brief.
Counsel has reviewed his file and determined a very
reasonable opportunity to file the brief within this time frame.
WHEREFORE Respondent, JERSEY SANITATION CORPORATION, requests
that
this Board deny
the “Motion for Sanctions, Request to Close Record” submitted by Complainant,
grant to
Respondent until October 22, 2004, within which to file its
response brief, and grant to
Respondent all
such other and further relief as this
Board deems just and appropriate.
Respectfully submitted,
JERSEY SANITATION CORPORATION,
Respondent,
By its attorneys
HEDINGER LAW OFFICE
By:St~~dingei’~~
HEDINGER LAW OFFICE
2601
South Fifth Street
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
This document prepared on recycled paper
BEFORE THE ILLINOIS POLLUTION
JERSEY SANITATION CORPORATION,
an Illinois corporation,
Petitioner,
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
)
)
)
)
RECE~VED
CONTROL
BOARDCLERK’S OFFICE
)
PCB No. 97-2
)
(Enforcement)
)
)
)
)
OCT
-
82004
STATE OF ILLINOIS
Pollution Control Board
NOTICE OF FILING AND PROOF OF SERVICE
The
undersigned
certifies
that
an
original
and
nine
copies
of
the
foregoing
Response to
Motion for Sanctions were
served
upon the Clerk of the Illinois
Pollution
Control Board,
and one
copy to
each of the following parties of record in this
cause
by
enclosing same in an envelope addressed to:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Suite 11-500
Chicago, IL
60601
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
1021
N. Grand Avenue East
Springfield, IL 62794
Jane McBride
Office ofAttorney General
500 South Second
Street
Springfield, IL 62706
with postage fully prepaid, and by
depositing
said
envelope
in a U.S.
Post Office Mail
Box in Springfield, Illinois before 7:30 p.m. on October 6, 2004.
v.
Hedinger Law Office
2601
South Fifth
Street
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
This document prepared on recycled paper
