c’ ~

~Ln~S

OFFICE

BEFORE THE

JAN

252005

ILLINOIS POLLUTION CONTROL BOARD

t~

Or

ILUNOIS

Udon

~~ontroJ

Board

GINA

PATT’ERMANN,

)

)

Complainant,

)

PCB 99-187

)

v.

)

(Citizen Enforcement

—

)

Noise, Air)

BOUGHTON TRUCKING AND

)

MATERIALS, INC.,

)

)

Respondent.

)

NOTICE OF FILING

TO:

See Attached Certificate of Service

Please take notice

that

on

January

25,

2005,

I filed with the

Illinois

Pollution

Control

Board

an

original

and

nine

copies

of this

Notice of Filing

and

the

attached BOUGHTON’S

RESPONSE

AND

OBJECTION

TO

COMPLAINANT’S

MOTION

FOR

VOLUNTARY

DISMISSAL WiTHOUT PREJUDICE,

copies of which

are attached hereto

and hereby served

upon you.

Dated:

January

25,

2005

BOUGHTON TRUCUNG

AND MATERIALS, INC.

By

On~o~tsA~ys

Patricia F. Sharkey

Mark R. Ter Molen

Kevin Desharnais

Michelle Gale

Mayer, Brown, Rowe & Maw LLP

190 South

LaSalle Street

Chicago, Illinois

60603-344 1

(312) 782-0600

THIS DOCUMENT HAS BEEN PRINTED ON

RECYCLED PAPER

---

CERTIFICATE OF SERVICE

Patricia F. Sharkey, an attorney, hereby certifies that a copy ofthe attached Notice of

Filing and BOUGHTON’S RESPONSE AND OBJECTION TO COMPLAINANT’S MOTION

FOR VOLUNTARY DISMISSAL WITHOUT PREJUDICE was served on the persons listed

below by the method indicated on January 25, 2005.

Bradley Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center, Suite 11-500

100 West Randolph Street

Chicago, IL

60601

(Courtesy Copy by Facsimile)

Michael S. Blazer

Matthew E. Cohen

The Jeff Diver Group, LLC

1749 S. Naperville Road, Suite #102

Wheaton,IL

60187

(Electronic Mail)

i½ttri

ia F. Sharkey

Patricia F. Sharkey

Mark R. Ter Molen

Kevin Desharnais

Michelle Gale

Mayer, Brown, Rowe & Maw LLP

190 South LaSalle Street

Chicago, Illinois

60603-3441

(312)782-0600

THIS DOCUMENT HAS

B

EEN PRINTED

ON RECYCLED PAPER

---

BEFORETHE

ILLINOIS POLLUTION CONTROL BOARD.

CLEB~’9

QrF~

y~

25 ~5

GINA PATrERMANN,

)

Complainant,

)

PCB 99-187

)

v.

)

(Citizen Enforcement

—

)

Noise, Air)

BOUGHTON TRUCKING AND

)

MATERIALS, INC.,

)

)

Respondent.

)

BOUGHTON’S RESPONSE AND

OBJECTION TO

COMPLAINANT’S MOTION

FOR

VOLUNTARY DISMISSAL

-

WITHOUT

PREJUMCE

.

.

.

,.

NOW COMES Respondent, Boughton Trucking and Materials, Inc.

(“Boughton”), by its

attorneys, Mayer, Brown, Rowe & Maw LLP pursuant to 35

111. Admin. Code

101.500(d) and

an

oral agreement with the Hearing Officer made on January 20, 2005 to file an expedited response,

and responds to Complainant’s Motion for Voluntary Dismissal.

SUMMARY

OF FACTS

AND

LAW

On January 20, 2005, eleven days before the hearing scheduled in this matter,

Complainant filed a motion for voluntary dismissal under 735

ILCS 5/2-1009. That motion

is not

supported by an affidavit or other evidence ofcompliance with the prerequisites for a Section

5/2-1009 dismissal.

Complainant did not file a motion for expedited Board ruling on this motion

and did not file a motion to cancel the hearing.

As

set forth below,

Plaintiff’s eleventh hour attempt to have this matter dismissed

without

prejudice as of right

under Section 5/2-1009 is an abuse of the Board’s procedures, is designed

to avoid the consequences of adverse rulings in

this case, and

is highly prejudicial to

Respondent.

In addition, Complainant’s motion

is procedurally and substantively defective.

THIS DOCUMENT HAS BEEN

PRINTED

ON RECYCLED PAPER

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COmplainant’s motion

states key facts that are not in the record, i.e. that Pattermann will pay

Respondent’s costs. It is

also not accompanied

by an affidavit

supporting Ms. Pattennann’s

purported agreement to

pay Respondent’s costs, as required by

35 Ill.

Admin. Code

10 1.504.

In

fact, Complainant’s attorney has rejected Respondent’s statement of costs, and there is no

evidence

in the record that the Complainant herself, who would be bound

to pay, has actually

agreed to pay whatever costs the Board awards.

Complainant

is not

entitled to

dismissal without prejudice

unless

and until

the substantive

requirements of 735 ILCS 5/2-1009 have been met, i.e.

upon

the actual payment of

Respondent’s costs.

Complainant’s manipulative use of Section 5/2-1009

to avoid the

~.•

.~

consequences of adverse discovery rulings entitle the Respondent to its “re~Sooabieexper er~~s

defined under Supreme Court Rule 219.

In such cases, Rule 219 authorizes the Board to award a

Respondent “reasonable expenses incurred in defending the action including but not limited to

discovery expenses, expert witness fees, reproduction costs, travel expenses, postage and phone

charges” as a precondition to

the granting of a Section5/2-1009 motion.

A statement of all such

costs incurred by Respondent in this case, including invoices, were tendered to Complainant

on

January 21,

2005. (See Attachment

1

hereto.)

As ofthis date, Complainant has neither paid

those costs nor agreed to pay those costs.

In fact, Complainant apparently disputes these costs

and the applicability

ofSection 219

in this case.

(See Attachment 2 hereto.)

Thus, the

substantive precondition for granting a Section 5/2-1009 motion has not been met.

As noted above, the “costs” are in dispute.

Furthermore, Complainant has not filed a

motion for expedited Board consideration.

Therefore, it is highly unlikely the Board will hear

and rule on Complainant’s motion before the hearing date which is now just one week away.

If

2

THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER

---

the Board does not hear Complainant’s motion before hearing, the Hearing Officer cannot rule

on that motion because it is a dispositive motion.

Furthermore, the Hearing Officer cannot cancel the hearing because the Complainant

failed to

file a written motion

to cancel the hearing at least 10

days before the hearing date.

Section

101.5 10(b) of the Board’s rules (35 Iii. Admin. Code

101.5 10(b)) requires that

a motion

to cancel a hearing demonstrate material prejudice and be attested to by an

affidavit.

That

Complainant made a “last minute decision” to move for voluntary dismissal is a situation ofher

own making and

she cannot use that decision as a “bootstrap” to now argue material prejudice

requinng

the canceling of the heanng. Indeed,

it

is the Re~poridertthi~

will su fer mate

~

prejudice

if

the Heanng Officer or the Board ignores the rAes ~

~i~’

~

Co

‘nan~v

manipulating the hearing process.

.

.

To the extent the Board has the discretion to grant voluntary dismissal without prejudice

apart from Section 5/2-1009, the equities demand that the Board

not

do so in this case.

After five

and a half years of litigation and a multitude of discovery abuses, the filing of this motion to

dismiss without prejudice eleven days before the rescheduled hearing date is an abusive tactic in

itself. Granting ofthis

motion at this late hour would be. highly prejudicial to Respondent

.

.

Rather than attempt to remedy Complainant’s abusive, late,

and defective motion by ignoring its

own rules, the Board should follow its rules and the scheduled hearing should go forward.

Complainant

can either appear at that hearing or take a default judgment.

3

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the Prerequisite ofPayment of Costs As Required by Section

5/2-1009

1.

Section 5/2-1009(a) states:

“The plaintiff may, at any time before trial or hearing begins, upon

notice to each party who has appeared or each such party’s

attorney,

and upon payment of costs,

dismiss his or her action or

any part thereof as to any defendant, without prejudice, by order

filed in the cause.”

(emphasis added)

Section 2-1009 has strict rules that govern the manner in which a plaintiff can

successfully dismiss

his orher suit without prejudice.

Lewis v.

Collinsville Unit #10 School

District, 311

IlI.App.3d 1021,

1027 -28, 72.5 N.E.2d 801,

806

(5th

Dist. 2000).

Where those rules

are notfollowed, the motion to dismiss must be denied.

~.

The key prerequisite is that the

moving party is

entitled to dismissal only “upon payment ofcosts.”

Payment of costs is a

prerequisite to entitlement to a dismissal without prejudice, not a matterto be complied with

subsequent to the issuance ofthe dismissal order.

In this case, Complainant’s motion does not

demonstrate that Complainant has made such payment and, indeed, Complainant has not made

such payment.

Therefore, Complainant’s motion

is substantively defective~

Complainant’s Motion Is

Not Supported By An Affidavit

As Required

By Rule 101.501

2.

Complainant’s states that “Pattermann shall pay such costs as are within the

meaning of Section 2-1009 upon

submission of a

statement of the same from Respondent.”

But

the mere statement that a party will pay “costs” is not the same as the actual payment of such

costs.

Not only has Complainant not yet paid Respondent its costs, Pattermann’s agreement to

make this payment is

an asserted fact which is

not of record in this proceeding and which is not

supported by an oath, affidavit or certification.

In fact, Complainant’s attorney’s email of

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January 23, 2005 indicates that Complainant

will

not

pay the costs Respondent is entitled to

under Rule 219.( See Attachment 2.)

3.

The Board’s rules at 35 Ill.Adm. Code

101.504 plainly provide, “Facts asserted

that are not ofrecord in the proceeding must be

supported by oath, affidavit or certification in

accordance with Section

1-109 ofthe Code ofCivil Procedure 735

IILCS 5/1-109.”

Absent an

affidavit from Ms. Pattermann supporting her agreement to pay Respondent’s costs and in

the

face ofher attorneys stated rejection ofRespondent’s costs, there is no evidence that this motion

is made in

good faith.

Therefore this motion

is defective on its face and should be rejected

without further consideration.

If

Voluntary Dismissal. Without Prejudice Is

Granted, Respondent is Entitled to.Its

Reasonable Expenses as Specified

in SupremeCourt Rule 219

..

•

.

4.

The Illinois Appellate-Court has held that;~withi’egard

to voluntary dismissals, the

rules guiding the courts of Illinois “provide the outer bounds of what an

administrative agency

can do regarding motions for voluntary dismissal.”

Citizens ofBurbank and People of the State

ofIllinois

v. Clairmont Transfer Co., PCB

84-125 (December 18,

1986), 1986 WL 27205,

citing

Village of South Elgin v. Waste Management, 64 Ill.App.3d 570,

881

N.E.2d 782, 782~783(2d

Dist.

1978).

Supreme Court Rule 219(e) (“Voluntary Dismissals and Prior Litigation”) is a

companion

Rule to

Section 5/2-1009 designed to ensure voluntary dismissals are not used

abusively to circumvent the consequences of discovery.

Morrison v.

C .G. Wagner,

191

Ill. 2d

162, 729 N.E. 2d 486 (2000) (Rule 219 prohibits a party from avoiding compliance with

discovery deadlines,

orders or applicable rules by voluntarily dismissing a lawsuit.) As Rule

219(e) is a companion to Section 5/2-1009, the Board cannot act on Complainant’s

Section 5/2-

1009 motion without considering Rule

219(e) and whether the voluntary dismissal without

5

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pi~ejudice

will allow the Complainant to circumventthe effect of discovery orders and sanctions

entered in this

case.

Illinois Supreme Court Rule 219(e)’

states:

(e) Voluntary Dismissals

and Prior Litigation

A party

shall not be permitted to avoid compliance

with discovery

deadlines,

orders or

applicable

rules

by

voluntarily

dismissing

a

lawsuit.

In

establishing

discovery

deadlines

and

ruling

on

permissible

discovery

and

testimony,

the

court

shall

consider

discovery

undertaken

(or the

absence

of same),

any

misconduct,

and

orders entered

in prior litigation

involving

a

party. The

court

may,

in

addition

to

the

assessment

of

costs,

require

the

party

voluntarily dismissing

a claim to pay

an

opposing party or parties

reasonable expenses incurred in defending the action including but

not

limited

to

discovery

expenses,

expert

witness

fees,

reproduction costs, travel expenses, postage and phone charges.

The Committee Comments to this nile further clarify the purpose of thisrul~and its

applicability to the case at hand:

~

.

.

.

.

-

Paragraph (e)

Paragraph

(e)

addresses

the

use of voluntary dismissals

to avoid

compliance

with

discovery

rules

or

deadlines,

or

to

avoid

the

consequences of discovery failures,

or orders barring witnesses or

evidence.

This

paragraph

does not

change existing

law

regarding

the

right

of

a

party

to

seek

or

obtain

a

voluntary

dismissal.

However,

this

paragraph does clearly

dictate that

when a

case

is

refiled,

the court shall consider the prior

litigation

in

determining

what discovery will be permitted, and what witnesses and evidence

may

be

barred.

The

consequences

of

noncompliance

with

discovery deadlines, rules or orders cannot be eliminated by taking

a voluntary dismissal. Paragraph

(e) further authorizes the court to

require

the

party

taking

the

dismissal

to

pay

the

out-of-pocket

expenses

actually incurred

by

the

adverse

party

or parties.

This

rule reverses the holdings in

In re Air Crash Disaster at Sioux City,

Iowa,

on July 19,

1989,

259 Ill. App. 3d 231,

631

N.E.2d 1302 (1st

Dist.

1994), and

Galowich

v.

Beech

Aircraft Corp.,

209

Ill.

App.

3d

128,

568

N.E.2d

46

(1st

Dist.

1991).

Paragraph

(e)

does

not

provide

for

the

payment

of

attorney

fees

when

an

action

is

voluntarily dismissed.

In addition, Illinois

Supreme CourtRule 208

provides

that court reporter’s fees, transcription costs, witness fees

and associated copying and

filing fees may be taxed as

“costs.”

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5.

As stated by the Illinois

Supreme Court in

Morrison

v. C.G.

Wagner,

191

Ill.2d

162,

166, 729 N.E.2d 486, 488

(2000):

“Rule 219 prevents voluntary dismissals from being used as an

artifice for evading discovery requirements through two entirely

different mechanisms.

First, the rule enhances the monetary

burden associated with such dismissals.

Under section 2-1009(a)

ofthe Code of Civil Procedure, plaintiffs must pay costs as a

condition oftaking a voluntary dismissal without prejudice.

Rule

2 19(e), however, provides that

in addition to the assessment of

costs,

the court may require the party seeking dismissal to pay the

opposing party or parties their reasonable expenses incurred in

defending the action including but not limited

to discovery

expenses, opinion witness fees, reproduction costs, travel

expenses, postage, and phone charges.”

Morrison, Id.

At pp.

166~

167,488

—489.

In

Scattered Corporation

v. Midwest Clearing Corporation,

2299 Ill. App. 3d

653, 702 N.E. 2d 167

(1st Dist.

1998), the Illinois Appellate Court provided more insight into the

scope and function of Rule 219(e):

“...Rule 2 19(e) does not act as a bar to a plaintiff’s

statutory right

to a voluntary dismissal. 735 ILCS 5/2-1009(a)...Rule 2 19(e) does,

however, curtail aplaintiff’s use of the voluntary dismissal as a

dilatory tactic. We believe that Rule 219(e) targets those strategic

and tactical litigation decisions which, having crossed the line of

vigorous advocacy, become

decisions aimed no longer at besting

the opposing party but rather at undermining the integrity ofthe

judicial

system.”

Id.

at 660.

The Appellate Court went on to say:

“.

.

.expenses authorized under Rule 2 19(e) serve not as a sanction

per

Se, but rather as a deterrent to the dilatory and manipulative use

of plaintiff’s voluntary dismissal. This prophylactic intent is

consistent with the purpose behind rule 2 19(c) in encouraging

compliance with the entire discovery process.

. .“

Id. at 660.

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6.

Notably, the sanctions in Rule 2 19(c), are the same sanctions that are authorized

under Board Rule

101.800 (35 Ill. Admin.

Code

101 .800) under which

Complainant in this

case

was sanctioned with the barring ofher expert witness.

(See Attachment 3 hereto.)

Thus, the

type ofbehavior that Complainant in this case engaged in

which has increased Respondent’s

costs and resulted in Board sanctions is precisely the type of“strategic and litigation decision”

that Rule 2 19(e) “targets.”

The intent of Rule 2 19(e) is to deter plaintiffs from taking

a voluntary

dismissal without prejudice to avoid the sanctions imposed under Rule 219(c) or, in thiscase,

Rule

10 1.800, and then simply refiling the case.

This

is the avenue that Complainant

in this case

is

clearly trying to preserve by filing this motion.

Although the Board cannot prevent her from

taking

a voluntary dismissal.under Section

5/2-1009, Rule 219(e) authorizes the Board to lessen

the harm to the Respondent by ensuring that she bear the cost of Respondent’s “reasonable

expenses” before she avails herself ofthis tactic.2

7.

Complainant’s behavior in this case is precisely the type ofmanipulation ofthe

system that Rule 219(e) was designed to curtail.

Complainant filed this matter on June

15,1999.

Since that time, Complainant has engaged in a strategy of delay and discovery abuse designed to

increase costs for the Respondent while minimizing costs for herself~Rather than diligently

prosecute her alleged “nuisance” claims, she has taken an “on again/off-again” approach, only

occasionally paying attention to orders and commitments made in this case, while keeping the

Respondent “on the hook.”

Her approach to this case resulted in many discovery abuses and

ultimately Board sanction.

2

It should be noted that

the “reasonable expenses” authorized under Rule 219(e) do

not include attorneys

fees, which the Appellate Court has

held the Board cannot impose.

ESG

Watts, Inc.

v. PCB,

286

Ill. App.3d

325,

337-338. Nor would the Board be imposing a

penalty or damages by

requiring that the requirements of Section 5/2-

1009

and Rule 2 19(e) be met

before a voluntary dismissal can be granted.

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8.

Complainant’s current motion

is a blatant effort to circumvent the-consequence of

her own discovery errors and the Board’s discovery rulings and sanctions.

Despite the fact that

Complainant

is herself an attorney, Complainant abused discovery procedures by refusing to

provide certain subpoenaed documents and by filing a witness list that consisted of hundreds of

names.

She also purported to

have hired an expert witness which she had, in fact, not hired, and

then allowed Respondent to bear the cost of a deposition in

which her purported expert witness

did not appear.

Based on this discovery abuse, along with her failure to attend many scheduled

-

status conferences, the Board ultimately ordered that Complainant’s fact witnesses were

limited

to the four identified witnesses,confirrne.d that discovery was. closed and no further witnesses

~.

.

-

would be allowed, and granted a mot’on for sancouns which barred her purported expert witness

(See

Attachment 3.)

The Board’s August 7, 2003

order stated:

.

.,

.

-

“The Board finds Ms. Pattermann’s

conduct has amounted to an

abuse of discovery and grants Boughton’s motion for discovery

sanctions in part.

Under Section

101.616(1), failure to comply with

any order regarding discovery may subject the offending persons

to sanctions.

35

I-li. Adm.

Code 101.616(1).

Here,

Mr. Zak did not

appear at this scheduled deposition because

Ms. Pattermann had

not retainedhim.

-

Ms. Pattermann does not dispute these facts. In

-

addition,

the hearing officer ordered that the parties complete all

depositions by May 2, 2003.

.By.not.maki.ng:.Mr. Zak available at

this scheduled deposition or any othertime before May 2, 2003,

Ms. Pattermann did not comply with the hearing officer’s order to

complete all depositions

by a time certain.

In addition, Ms.

Pattermann prevented Boughton from completing

any discovery

deposition ofher expert noise witness.

Ms. Pattermann has

violated several hearing officer orders in the past by not appearing

at status meetings and by not producing a document subpoenaed by

Boughton.

The Board finds that Ms. Pattermann’s conduct

amounts to an

abuse of the discoveryprocess.”

9.

Apparently Complainant has now finally focused on the facts in this case and

realizes that as a result of the Board’s sanction order she doesn’t have an expert witness.

Perhaps

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her fact witnesses have also disappeared or become disaffected with her case.

While

we are not

privy to her reasoning

---

because she hasn’t filed a proper, documented request to cancel the

hearing

--

it is clear that she would like to avoid the consequences of her past actions and the

Board’s sanction order by dismissing this case with the option ofrefiling and starting anew.

This

effort at circumvention falls squarely within the type of abuse

Supreme Court Rule 2 19(e) was

designed to prevent.

10.

In Valdovinos v. Luna-Manalac Medical Center, Ltd., 328 Ill.App.3d 255, 764

N.E.2d 1264

(1st

Dist.

2002), the Appellate Court affirmed an award of $79,173.14 in

costs under

S.-Ct. Rule.219(e), holding:

.

.

.

.

..

- ..~

......

-

....

--

..

-

..

.~

.

“There is

no question. that the assessment of expenses pursuant to.

-.

-

:

-

----

-~

~-~-

Rule 2 19(e)

is

proper in the instant case where the plaintiffs

.

exercised theirright to voluntarily dismiss the action without

prejudice in order to

avoid the effects of pre-trial evidentiary

rulings based on their own failure to comply with discovery

-

deadlines.”

-

As in

Valdovinos, there should be no question in

this case that Respondent is

minimally

entitled to

its expenses, as specified in Rule 219

and demonstrated in Attachment 1, if and when

the Board rules on Complainant’s Section 5/2-1009 motion.

-

The Board

Should Not Exercise Its Discretionary Authority

to Dismiss This Case Without Prejudice.

11.

Until Respondent’s “reasonable expenses,” as shown in Attachment

1

hereto,

have been paid, Complainant is not entitled to a voluntary dismissal without prejudice under

Section 5/2-1009.

Furthermore, a dismissal without prejudice is not warranted under the Board’s

discretionary powers.

Dismissal without prejudice would be highly prejudicial to Respondent

who has not only incurred extensive “costs” as defined under Supreme Court Rule 219, but

has

also

incurred extensive attorneys fees to defend itself in the face of Complainant’s nuisance

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allegations.

Although attorneys fees cannot be recovered in this forum, the Board can and

should consider the fact that Complainant’s dilatory and abusive prosecution of this case has

resulted in extra costs

and fees to Respondent.

Respondent has been forced to have its attorneys

request withheld documents repeatedly,

attend numerous

scheduled status conferences over the

last 5 ½

years where Complainant and her counsel failed to appear, move to strike a spurious

purported witness list of over

100 witnesses, attend and pay for a properly noticed deposition in

which neither Complainant, her counsel nor her purported expert witness appeared, finally move

to bar Complainant’s purported expert witness, and file motionsto remind Complainant’s to file

late responsive briefs.

-

.

~

.12.

:

AU of Complainant~s

abuses of discovery requirements~andth~Bc.ard~.s

or~lers.:

‘

~

~.:

—

-

and rules have

been-expensive for the Respondent.

It would.be manifestly, unjust for the Board

to dismiss without prejudice and thereby allow Complainant

to potentially re-file her claims at a

later date, thus keeping Respondent in jeopardy.

Respondent has not only been forced to bear

the extra costs and fees associated with Complainant’s procedural abuses, it has also. at this point

borne extensive costs and attorneys fees, as well as the time and effort ofits own-employee

witnesses,.to. fully prepare for a hearing on nuisance claims which Complainant, has apparently

-

,

.

-

.

.

now decided she doesn’t want to pursue

at this time.

After 5 ½

years of litigation, if

Complainant

is not ready and able to support her allegations at this

point,justice requires that her

allegations be dismissed with prejudice.

Filing

an abusive, unsupported and incomplete motion

does

not automatically

stay

or cancel a hearing.

-

13.

Complainant’s Motion was not filed until January 20th,

and the next Board

meeting will not take place until

afterthe January 31, 2005 scheduled hearing date.

The Hearing

Officer cannot act on a dispositive motion (35 Ill. Admin. Code

101.502(a)), and Complainant

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has not filed a motion for expedited Board review under 35 Ill. Admin.

Code 101.5 12.

Thus,

even though Respondent agreed to

file this response on an expedited basis, it is highly unlikely

that Complainant’s Motion

will be

acted upon prior to the hearing date.

This is a problem of

Complainant’s own making.

14.

The filing of a Motion for Voluntary Dismissal does not automatically cancel a

scheduled hearing.

The Board’s rules make it very clear that the filing of a motion,

in

and of

itself, does not stay a proceeding orextend the time for the performance ofany act.

35 Ill.

Admin. Code

101.502.

Motions to

stay a proceeding must be directed to the Board and must be

accompanied

by sufficient information detailing why

a’ stay is-needed.‘-35

111.

Admin. Code

101.514.

-

--

:

-.

-::

~::.:...

-:-.

:-

15

Furthermore, the Hearing Officerhas no authonty to cancel the hearing in this

case because Complainant

did not file a motion to cancel the hearing more than ten days before

the scheduled hearing date, norhas she provided an affidavit demonstrating that she will suffer

material prejudice if the hearing is not canceled and .that any request to cancel the hearing is not

the result of her own lack of diligence, all as required under 35 Ill.

Admin.

Code 101.5 10.

-

-

16.

ThatComplainant made a last minute tactical- decision to move for-voluntary::

dismissal is

a situation of her own making and she cannot use that

decision as a- “bootstrap” to

now argue material prejudice requiring the canceling of the hearing which was rescheduled at her

request less than 45 days ago.

Indeed, it is the Respondent that will suffer material prejudice if

the Hearing Officer or the Board ignore the rules and aid the Complainant

in manipulating the

judicial process. Respondent has now been required to prepare for hearing twice to accommodate

Complainant.

Furthermore, there is no guarantee that the Board will grant Complainant’s motion

or that Complainant won’t withdraw this motion when faced with actually paying Respondent’s

12

THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER

---

expenses as required by Rule

219.

If this

hearing is cancelled, Respondent may very well have

-

to prepare for trial a third time as a result of Complainant’s maneuvers.

-

17.

All of these procedural problems are a result of Complainant’s own very late

decision to file this motion.

The lateness ofthis filing does not excuse compliance with the

Board’s regulations or allow the abandoning of those rules to the prejudice ofthe Respondent.

Respondent very much wants this hearing to go forward, to have its day in court and to finally

get a Board ruling that-its operations do not constitute a nuisance.

The Complainant’s motion

is

simply too late to be heard before hearing and the hearing must go forward.

-.

-

-.

-.

~-

~.ONCLUSION

-

-

-

-

-

-

.If the Board chooses to rule on. Complainant’s motion under Rule 5/2-1009, it.cannot

apply only-part ofthat rule or apply it in a fashion that is inconsistent with Supreme Court Rule

219 and the Supreme Court’s

stated intent.

Thus, unless

and until Complainant has paid

Respondent’s discovery expenses, expert witness fees, reproduction costs, travel expenses,

postage, phone charges, court,reporter and transcription charges and related- costs as required

under Rule 219 and Rule 208, ~llof

which are listed in Attachment 1 hereto, Complainant’s

motion cannot be granted.

-

---

-

-

:

-

-

-

-

-

13

THIS DOCUMENT HAS BEEN PRINTED

ON RECYCLED PAPER

---

Furthermore, there is no automatic

stay of the hearing and no proper motion and basis has

been filed which would allow the Hearing Officer or the Board to cancel the hearing at this late

date. Complainant has created this problem, just as she created the other problems in

this case

she npw seeks to avoid.

She should live with the consequences.

She has a choice

—

she can go

to hearing on the scheduled date or take a default judgment.

BOUGHTON TRUCKING AND MATERIALS, INC.

\

~--

_-~~\

January 25, 2005

-

______

~,

)~‘-~7

-

.

-

-

.

-

--

-

-

-

-

.

-

-

-

-

-

-

-

By

O.pe Of Its Attorneys

~

-

-

Mark R.Ter Molen

-

.

.

PatriciaF. Sharkey

Kevin Desharnais

-

Michelle A. Gale

.

Jaimy L. Hamburg

MAYER, BROWN, ROWE & MAW LLP

190 South LaSalle Street

-

Chicago, Illinois 60603

(312)782-0600

-

-

14

THIS DOCUMENT HAS

BEEN PRINTED

ON RECYCLED PAPER

---

ATTACHMENT

1

MAYER

BROWN

ROWE

&MAW

January

21, 2005

Mayer,

Brown.

Rowe &

Maw LIP

190

South

La

SaHe

Street

Chicago

Illinois

60603-3441

VIA

EMAIL AND FIRST

CLASS U.S. MAIL

Main Tel (312) 7820600

Main

Fax

(312)

701.7711

Michael Blazer

-

www.mayeibrownrowe.com

THE JEFF DIVER’GROUP, L.L.C.

-

1749 South Naperville Road

-

Patricia F.

Sharkey

-

DirectTel

(312) 701.7952

Suite

102

Direct Fax

(312) 706•9113

Wheaton, Illinois

60187

,

psiarkey@mayerbrownrowe.com

Re:

Pattermann

v. Boughton, PCB 99-187;

Respondent’s Costs Within the Meaning of

-

Illinois Code of Civil Procedure Section 5/2-1009

-

.

-

Dear Mr. Blazer:

We received Complainant’s Motion for Voluntary Dismissal by facsimile yesterday,

January 20, 2005. We are preparing a response to that motion which we will, email to you and

file with ME. Halloran and the Board on

Mondayin advance ofour scheduled Status Conference

with Mr. Halloran.

,,

.

-

-

In response to Paragraph 3 of Complainant’s

Motion, we are hereby tendering a

preliminary statement ofRespondent’s costs, within the meaning ofSection 2

-1009, as we have

been able to gather in this short time interval.

RESPONDENT’S COSTS

-

Expert witnesses

Michael S. McCann, William A Mcann & Associates, Inc.

$23,293.35

Kip Smith, MacTec, Inc. (previously Harding-Lawson)

$

3,423.49

Court Reporter and Transcripts

-

George E. Rydman & Assoc., Ltd.

$

1, 361.40

Trial Exhibits

Document Technologies, inc.

$

591.63

Reproduction Costs

$

3,714.15

Travel Expenses

$

142.07

Postage

(md.

mail, document delivery, preparation and fax)

$

1,242.17

Phone

(Long Distance)

$

8.69

Total

$33,776.95

Brussels

Charlotte

Chicago

Cologne

Frankfurt

Houston

London

Los Angeles

Manchester

New York

Palo Alto

Pans

Washington, D.C.

Independent

Mexico CityCorrespondent:

Jauregui,

Navarrete, Nader y Rojas, S.C.

Mayer, Brown,

Rowe

& Maw LLP operates in combinahon with

our associated English limitedliabilitypartnership in

the-offices

listed

above.

---

Mayer, Brown, Rowe

& Maw LLP

Michael Blazer

January 21, 2005

Page 2

Notwithstanding our tender ofthis information, we reserve our objections to the Motion

and we will be prepared to discuss those objections in our conference on Monday.

Sin~p

-

PatrickF.tsharkey

Enclosures

cc (w/enc):

Bradley Halloran

1257865

99556862

---

1lz11zuu~

~

9:49 AM

- -

.

DETAIL REPORT BY MAilER

-

-

Reqd

by

ML005139

From

Date:O1

Jan

199910 Dete:21

Jan

2005

-

Cost Summary

-

Amount

-

-

Cost

Desc

-

CostlWe

-

-

Base

Tobill

-.

Blil

Document Delivery

94

-

122.40

122.40

-

122.40

Document Delivery

-

ChIcago Messenger

60

-

11.50

11.50

1i.~O

Page

61

---

112112005

Mayer, Brown, Rowe&MawLLF

9:49 AM

DETAIL.

REPORT BY MATTER

-

Req’d

by

ML005139

From Date:01

Jan

1999 To Date:21

Jan

2005

.

-

-

-

Time WIP

Status Included: Billed

Cost

WIP

Status included: Billed

Cost Summary

-

-

-

Amount

Cost Desc

Cost Type

Base

TobIll

-

Bill

Document Delivery.

Office

93

-

346.72

-

346.72

346.72

Document

PreparatIon

29

.

727.50

727.50

727.50

-

Document

ReproductIon

42

-

-

3,364.65

3,354.00

3,352.35

Document Reproduction

-

Outside

41

-

361.80

361.80

361.80

Facsimile Transmission

-

Local

82

-

378.57

-

-

378.57

378.57

Facsimile TransmissIon

-

long Distance

83

264.00

264.00

264.00

Local TransportatIon

09

-

142.07

142.07

142.07

Long Distance Telephone

72

-

8.69

8.69

8.69

Mailing Charges

-

Office

92

-

101.58

101.58

101.58

Mailing Charges

-

Outside

91

18.76

17.40

17.40

Transcripts

06

-

-

1.361.40

1,361.40

1,361.40

-

$7,195.98

$7,195.98

1—~—~-

1

Page

62

---

Jan.

21. 2~53:18PM

WiUiamA:

McCann &

Associates. Inc.

Since

1962

Boughton Trucking

& Materials, Inc.

c/~

Frank Maly

Secretary

I 1746S. naperville-Plairifield Road

Plainfield IL 60544

No.

1708

P.

2

Real Estate Appraisers &

Consultants

Mith~eI

S. McCann

BrIan

P. McCann

Ptevin A. B~rnes

Michael

F. Walsh

James P. Foley

III

laur3 M. Foran

Martin I.. Hovlhan

William A. McCann

Ill

John T. Setin~III

William A.

McCann,

MAI

Utigation

Consulfont

PL~ASE

RETURN ONE

COPY

WITH PAYMENT

RE:

111th Street

-

Boughton Quarry

-

Naperville,

II.

McCann File No.

030304

For services rendered to assist

client

in

preparing defc~xtseft~r

PCB hearing,

‘

-

including exhibits,

all supporting data and basis for opinions,

time detailed as

follows;

-

-

HOURS

~AMOUNT

Michael

S.

McCann

Telephone conference with Pat Sharky re; relocation cost

issues, etc.

Executive

summary

writing; refinement of analysis and

conclusions;

supervise production; edit tables, etc.

Analysis of

resale data,

Naperville trends! River Run/ White

Eagle data over~Il,specific near-far data; scope with John T.

Se-dna,

91 and Laura Foran re:

exhibits,

maps, aerials;

report

writing re: findings, conclusions, support for

opinions;

lunch

meeting with John T. Setina,

Ill refine

analysis1 table

and

-

exhibit requirements;

aerial -presentation scope with Melissa

M.; etc.

Executive summary

-

writing; refinement of analysts

and

conclusions; supervise production

Meeting! analysis with John T.

Setina, Ill; review selections

for data analysis

Teleconference with Pat Sharkey,

Esq.

re: photos, preliminary

data

results, berm photo

Analysis with John T. Setina,

Ill

re: target

and

control areas~

compare average prices and sf of house, marketing times.

type of doe,

locations of

house,scope of exhibits

Conference with John 1.

Setina,

ii re: job and research

-

Review NIPC photos

with

John T.

Setina, Ill

and report

exhibits

Review sequenced aerials

with John 1.

Setina, Ill re: history

of development trends; possible exhibits

Field inspect subject with

John T. Setina, Ill,

Frank

M.

at

quarry; tour site,

River Run subdivision,

subdivision to

north,

White

Eagle at west Rte.

59 to select control area: review

MLS

preliminary data;

to/from

Naperville

04/04/2003

04/03/2003

04/02/2003

03/3112003

03/28/2003

03/2612003

03/24/2003

03/21/2003

03/20I2~03

414 North Olleans Street, Suite

601

Chicago. Illinois 60610

PHONE: (312) 644-0621

FAX: (312) 644-9244

0.45

7.50

7.75

1.50

2.50

0.25

3.75

0.20

0.90

0.50

7.00

FILE

COpy

April 07,

2003

Invoice No.

13794

www.mccannoppraisal.com

---

Jan.

21.

2O~5 3:19PM

Mo. ~7~8

P.

3

Boughton Trucking &

Materials, Inc.

page

2

Invoice No.

13794

03/19/2003

Conference with John T. Setina,

RI re; job and research

status

0.25

03/1 812003

Analysis of location, info available

with John T.

Setina, III;

1.25

review subdivision

histories & Naperville plan districts;

teleconf w/

Frank

M. ra~

general volume histories at subject

and ether

area

quarries;

refine scope of target/control

research;

etc.

Follow up review- township assessors

lists. excel analysis,

0.35

etc.

03/17/2003

Conference with John T.

Setina, ill re: job and research

0.35

parameters

03113/2003

Meeting with John

T. Setina,

Ill re;

aerials needed, target

0.75

area

sale data, control parameters,

etc.

03/11/2003

Teleconference with

Pat Sharky at

Mayer

Brown

0.35

Review scope of research for property value

impact study

1.00

with John T.

Setina,

Ill

03/10/2003

Teleconference with Pa~.

Shar~cya~id

Kevin

Desharnas

0

25

SUBTOTAL;

I

36.85

6,817.25

La~m

Foran_..

04102/2003

Analysis and research

-

map out subdivsicn

re-sates f~r

each.

2.25

lot in River Run and

White

Eagle subdivisions

SUBTOTAL~

.

I

2.25

225.001

John T. SetinaJil

04(04/2003

Process balance of reports

and messenger to clients office

0.75

04/03/2003

Edit tables c~iart

for report; process

reports;

messenger (1)

8.30

copy to dflents

office; conference wtth Michael

S.

McCann

re;

data tables, exhibits and

report

writing; print out photos

to

label for

report

exhibits

04/02/2003

Conference with Michael

S.

McCann re: data tables,

exhibits

10.25

and report writing; Make

River Run

and White Eagle repot

exhibits of subdivion

plat map with

sales! resales

mapped

out;

Review River Run and

White Eag’e sales and resales

data; WIPC photo to

be copied; data

tables for residential

subdivisions, exhibits for reports

and photos; report writing.

04/01/2003

CMA for Clow Creek farm,

Whispering

Lakes, Saddle Creek,

7.85

High Meadows,

Crestviow

Knolls, Wheatland South,

Breckonridge Estates residential; Research Naperville det-sfr

sales 2001, 2002,

2003, Napervitle overall and Napervitle

Will County only;

MLS research CMA on subdivisions;

Ashbury,

Rosohill, Brook

Crossing Estates,

and Knoch Knolss

03/31 /2Q03

Make map

exhibits for report re: River Flun

and White

Eagle

7.55

residential subdivision;

MLS research

CMA

on subdivisions:

Ashbury, Rosehifl,

Brook Crossing Estates, and

Knoch Knolls;

Field inspection photo

-

email to

Pat. Sharkey for review; 360

day comparative market analysis of

River

Run

and White

Eagle residential subdivision for active,

expired, cancelled

---

Jan.

21.

2005

3:19PM

No.

1708

P.

4

Boughton

Trucking & Materials, Inc.

Page

3

invoice

No.

13794

_JIOURS

AMOUNT

listings:

Conference call with

Michael S.

Mccann and Pat

Sharkey,

Esq,

re: job

status and preliminary data results;

Analysis with Michael

S. Mccann re:

preliminary research

data results, exhibits, new research

and data array

and

prepared in tables

03/31/2003

Report writing

0.50

03/30/2003

Review and analyze White

Eagle residential sale data, put

in

2.00

excel spread sheet form

03/29/2003

Research

all

sales in the Shite

Eagle residential

subdivision for

10.60

sale and resale

-

430 properties; River run and White eagle

residential

subdivision sales spread sheet, input data, sort

data tables and calculate averages,

Input in spreadsheet form;

03/28/2003

Analysis with Michael

S.

McCann re: target

and

control

.

3.75.

areas,

compete average prices

and sf of

house, marketing

times,

type of dcc, locations of house,scopa of

exhibits

Review and analyze White

Eagle residential sale data,

input

4.25

excel

.03/2712003

Sidwell maps of entire White

Eagle residential subdivision for

7.95

research; review and analyze White

Eagle residential sala

data, excel input; conference with Michael

S. McCann re: job

and

research

03/26/2003

Calculate marketing times for all

sales each year 2003-01

for

7.70

River

Run and White

Eagle;

River Run

and White

Eagle

residential sale data input

03/25/2003

Review

NIPC photos with Michael S. Mccann

and discuss

0.30

exhibits

03/24/2003

River Run and White

Eagle

residential

sale data

input;

8.15

research White

Eagle residential

subdivision; review NIPC

photos

with Michael

S.

McCann and report exhibits; review

end organize field inspection note and file; rview and organize

(download)

digital photos from field inspection

03/21/2003

Review

and analyze River Run

residential data,

input excel

7.15

spread

sheet form,

all

properties (430) In subdivision;

research

maps for oontrol area for sales study research,

area

maps, sidwell

maps; aerIals with Michael S.

McCann; review

and compare all sales

in the River Run residential

subdivision

for sale and

resale extraction

03/20/2003

Field inspection with Michael S. McCann,

Frank

M. at quarry;

7.00

tour site, River Run subdivision

03/19/2003

Research all sale

in the

River Run residential subdivision for

7.20

sale and resale analysis; conference with Michael S. McCann

re: job and

research status; reseatch River Run residential

subdivision,

MLS 2003,

2002,

2001

sales in each

year for

average

sale price and marketing times

03/18/2003

MLS

-

property report research sale and

resale data

in the

6.80

River

Run subdivision;

review single family developments;

conference with

Michael S.

Mccann

re:

‘field inspection,

research, target

and

control

area

---

Jan.

21.

2005

3:20PM

No.

1708

P.

5

Boughton Trucking & Materials,

Inc.

Page

Invoice No.

13794

H0UR~

AMOUNT

Conference with Michael S.

McCann re: job and research

parameters; maps of subject site and area to be researched;

research

all sales in the

River Run residential

subdivision for

sale

and resale; order NIPC aerials and airpix photos; research

aerial photos for subject area,

research

(map quest) and

sidwell

maps

Research

River Run

PIN number

and sales data on township

web site;

maps of the subject

site

and

subject area to

be

researched

Conference with Michael

S. McCann re: subject location

and

research of

SFR

in the area and research

of target

and control

area;

NIPC arid airpix photos to order

Call Kevin Desharnais re:eny data relating to the subject

property

-

not in office

-

left

a voice mail message

3:14pm

Conference with Michael S. McCann re: job and research

SU8T0TAL~

Rill

McC~rtn.Ill

0.75

0.05

1:00

119.10

14,887.501

04/0312003

Prepare photo exhibit (Figure #5)

SUBTOTAL;

FEE AMOUNT:

ADDITIONAL CHARGES:

Exnenses

1~25

1.25.

155.251

159.45

~22,088.0O

04103/2003

04/01/2003

03’12012003

Mossner Company

-

exhibit and map charges

Mossner Company

-

exhibit and map charges

Aerial photographs

58.55

30.90’

108.50

198.05,,

$198.05

$22,284.05

($5,000.00)

(~5

,000.00)

$17,284.05

4

03/17/2003

03/14/2003

03/13/2003

03(11/2003

6.25

3.00

I

SUBTOTAL:

TOTAL COSTS

TOTAL AMOUNT OF THIS

BILL

03/14/2003

Retainer Payment

-

thank you

Check No.

50475

Total payments and adjustments

BALANCE DUE:

---

Jan.

21.

2005

3:20PM

~o.~7Q8

P

6

Boughton Trucking & Materials, Inch

Page

5

invoice No.

13794

This invoice

is for services rendered for the dates listed above and is due and

payable within

20

days,

if you have any questions, please call

our accounting department and you will be assisted

in

processing this invoice for a timely payment.

Amounts

unpaid after 30 DAYS are subject

tO 8

charge of

1.50

per month

on the unpaid balance.

We

appreciate the opportunity to bo

of service to

you in this assignment.

---

•

Jan.

21.

2005

3:20PM

WilUam A.

McCann &

Associates, Inc.

Since

1962

November 6, 2003

Boughton Trucking & Materials,

Inc.

Gb

Frank

Maly,

Secretary

11746

S.

Napervitle-Plainfield Road

Plainfleld,

illinois 60544

RE:

111th

Street

—

Boughton Quarry

Naperville, Illinois

McCann

File No. 030304

No.

1708

P.

7

Real Estate Appraisers & Consultants

OPY

Michael S. McCann

Brian

P. Mccann

Kevin k

Byrnes

Michael F. Walsh

James P.

Foley

III

Martin

L HOulihan

William A. McOann

III

John T.

Sauna III

William A.

McCann, MAI

Ufigeltos~

Consultant

Dear Frank:

• Our current

invoice includes exhibit charges that were not included

in prior invoices.

Please call

if you have any questions.

WILLIAM A McCANN

&ASSOCIATES, INC.

Michael S.

McCann

President

End.

414 North Orleans Street. Suite 601

Chicago,

Illinois 60610

PHONE:

(312)

644-0621

FAX: (312) 644-~244

www.mccannappraisaI.com

Respectfully,

---

Jan.

21.

2005

3:21PM

•

William A.

McCann &

A~sociates,Inc.

Since

1962

COpy

No.

1708

P.

8

Real Estate Appraisers & Consultants

Mt~haaI

S. McCann

•

Buan P. McCann

Kevin

A.

Symes

Michae’

F. Walsh

James

P.

toley

Ill

Martini.

l-loulthan

William

A.

McCann Ill

John T. SaUna

HI

Willium

A.

McCann,

Mf~l

November 06, 2003

Litigation

consultant

invoice No.

13957

PLEASE RETURN ONE COPY WITH

PAYMENT

•

•

_HOURS

AMO1~JNT

~oughtonTrucking & Materials, Inc.

do

Frank Maly

Secretary

11746 5. Naperville-Plainfield Road

Plainfield IL 60544

RE:

111th

Street

-

Boughton Quarry

Naperville,

II,

McCann File No. 030304

•11/6/2003 Final review of affidavit; forward to

attorney

Malt S.

11/2/2003 Review and edit

draft

affidavit prepared by client’s

attorney re:

summary of McCann property value study;

forward to

attorney

•

(email)

10/28/2003

Teleconference w/Pat Sharkey re:

motion, affidavitto be prepared

FOR PROFESSIONAL SERVICES RENDERED:

Mk~h~I

~•

M~fnnn

SU~TOTAL~

FEE AMOUNT:

ADDITIONAL CHARGES:

2.50

$462.50

Exoense~

4/3/2003

Mossner Comp~ny

-

exhibit and map charges

4/2/2003

Mossner Company

-

exhibit and map charges

SUBTOTAL:

TOTAL COSTS

TOTAL AMOUNT OF THIS BILL

515.90

30.90

548.80

$546.60

$1 ,009.30

414 North

Orleans Street, Suite 601

Chicago. Illinois 60610

PHONE:

(312) 644-0621

FAX: (312) 644-9244

0.25

2.00

0.25

2.50

462.503

www,mccannappraisaLcom

---

Jan.

21.

2005

3:21PM

William A.

McCann

&

Associates, Inc.

Since

1962

Celebrating 42 Years of Seivice

Boughton Trucking

&

Materials,

Inc.

do Frank Maly

Secretary

11746

S.

Naperville-Plainfield Road

Plainfleld

IL 60544

No.

1708

P.

10

Real Estate Appraisers & Consultants

January21, 2005

invoice No.

14198

PLEASE RETURN ONE COPY WITH

PAYMENT

RE:

111th Street

-

Boughton

Quarry

Naperville,

IL.

McCann File No. 030304

For Professional Services Rendered:

Michael S.

McCann

1/11/2005 Review of Boughton files for meeting with Kevin

Desharnais

1/1212005

Hearing prep with

Kevin Deshanais.

Subtotal:

._H2i~

Arn

1.00

200.00~

•

3.75

750.00

4.75

950,001

Total Appraiser Fees:

Name

Michael S. McCann

475

$950.00

±jours

Rate

_..

Amount

4.75

200.00

$050.00

This

invoice is

for

services rendered for the

dates listed above and is due and

payable.within 20

days.

If you

have any questions, please call our accounting department and you will

be assisted

in

processing this invoice

for a timely payment.

Amounts unpaid after 30 DAYS are subject to a

charge of 1.5

per month on the unpaid

balance.

We appreciate the opportunity to be of service to you in

this assignment.

414 North Orleans Street. Suite

601

Chicago, Illinois 60610

PHONE:

(312)

644-0621

FAX: (312) 644-9244

Appraiser Summary

---

Please reference this number

when remitting

George

E.

Rydman & Assoc. Ltd.

•

Court Reporters and Video

15

W.

Jefferson St.

Joliet,

Illinois 60432

815-727-4363

•

800-608-5523

Fax 815-727-7186

PATRICIA F. SHARKEY

MAYER, BROWN, ROWE

& MAW

190 SOUTH LASALLE STREET

CHICAGO,

IL

60603

Fed ID.

36-3303806

4/18/2003

~Oi~C

15891

4/18/2003

Page

I

of

I

RE: GINA PATTERMANN VS.

BOUGHTON TRUCKING AND

MATERIAL,

INC.

PCB 99-1 87 / BEE / 10518

DEPOSITION OF GINA PATTERMANN

115 pages

4/8/2003

ORIGINAL TRANSCRIPT

$362.25

REPORTER ATTENDANCE FEE

$87.00

DEPOSITION OF WILLIAM

B. JENE, JR.

AND CARLENE C. JENKINS

87 pages

4/10/2003

ORIGINAL TRANSCRIPT

$274.05

REPORTER

ATTENDANCE FEE

$87.00

4/10/2003

OVERNITE DELIVERY

$18.00

Total

Balance

Due

$828.30

---

George

E. Rydman & Assoc.

Ltd.

I

Court Reporters

and Video

15 W.

Jefferson St.

Joliet, Illinois 60432

800-608-5523

Fax 815-727-7186

815-727-4363

PATRICIA F. SHARKEY

MAYER,

BROWN, ROWE & MAW

190 SOUTH LASALLE STREET

CHICAGO,

IL

60603

Fed ID. 36-3303806

5/8/2003

lii’,

~

‘Nt

,~it’~~i+

16102

Please reference this number

when remitting

Total Balance Due

10/2/2003

Page

I

of

1

$533.10

RE:

GINA PATTERMANN VS.

BOUGHTON TRUCKING AND

MATERIAL,

INC.

PCB 99-187 / KRN /

10632

***

120 days past due

DISCOVERY DEPOSITION OF

GREG

ZAK

(Did

not appear)

LISA COLLINS,

46

Pgs.

DONALD A. BOUDREAU, 65

Pgs.

4/23/2003

REPORTER ATTENDANCE FEE

$174.00

ORIGINAL TRANSCRIPT

•

$344.10

ASCII

DISKETTE(S)

$15.00

to

I

•

•

---

Doci~nènt

Technologies, Inc.

105

W.

~tdamsSt., Ste.

1100

Chicago,, IL

~0603

Phone

: 312-739-9999

Fax:

3 l2-73~9-0899

Fed. ID No. : 58-2413793

Bill To:

Mayer, Brown,

Rowe & Maw LLP

190 S.

LaSalle Street

Suite 1900

Chicago,

IL

60603-3441

Tom

Kuslik

•

INVOICE

Invoice Number.

164310

Invoice Date:

01/20105

Ship To:

Mayer,

Brown,

Rowe & Maw LLP

190 S.

LaSalle Street

Suite 1900

Chicago,

IL

60603-3441

Customer ID

Terms

SalesPerson

P.O.

Number

12861

Net 15 Days

CHI CDA

CIient/ Matter No.

99556862

Job

No.

CB36292

Nat’I

Acct

Name

Nat’I

Acct

Ref. No.

QuantIty

Description

6

35” x 36”

B/W Oversize & Mount

1

24”x 36” Color Oversize & Mount

1

2

Sets

-

Color Photos & CD’s w/Color Photos

Accepted

By:

Remit To:

Document

Technologies, Inc.

105W. Adams St.,

Ste.

1100

Chicago, IL

60603

Thank you for choosing Document Techno’ogies, Inc.

Subtotal:

Total

Sales Tax:

Total:

•

COPY

Unit Price

65.00

84.50

117.13

Total PrIce

390.00

84.50

117.t3

591.63

0.00

591.63

---

J~r~

24

05

09:49~

I3OUGHTON

TRUCKING

16309041436

BOUGHTON

TRUCKING

&

MATERIALS,

INC..

11746

S.

NAPERVILLE—PLAINFIELD

ROAD,

PLAINFIELD,

IL

60544

OUR

TEL.

NOS.

815-436-4555

and

630-759-4096

OUR

FAX NO.

630-904-1436

FACSIMILE

TRANSMiTTAL

DATE:

/

~

TO:

FROM:

•

NO. OF PAGES

INCLUDING

COVER:_____________________

MESSAGE:

•

~MACTEC

INVOICE

R,yeit

to~

MACTEC

Em9ineeriug

&

coneu~lting. Inc.

Federal

ID

68-0146861

7477 Collection

Center

Dri”e

Chicago~

XL

60693-0076

To~

BOUGWr TRUCKI3~G ~I~D

MATERI~1.S

11746

8.

N~PERVILLE

ROAD

PLAWIE~.D.

XL

60544

~ttfl:

Mr.

WA’~NE 8ZE9LA~

o,-n’iaet

Eame

,BOUGHTON

LITIGATION

Invoice

Date

11/26/2003

---

Jab

24 05 09:48a

BOUGHTON

TRUCKING

16309041436

p.2

BOUGHTON TRUCKING

& MATERIALS,

INC.

MACTEC

12/1012003

•

520 t.7

Dare’

Type

Reference

‘

Original

Attic.

Balance Due

Discount

Payment

11/2612003

.

mu

8060774

179.13

179.13

179.13

Check Amount

179.13

Cash

-

Checking

PCB Issues

•

179.13

189921

(Sf03)

---

J,~n24 05 OS:48a

BOUGHTON

TRUCKING

16309041 43~

p.3

‘V

To:

B000WFON

TRUCIING

AND

l’IP.TERIALS

11746 3. NAPSRVILLE

ROAD

P~iNFIE1aD,

XL

60544

Attfl:

Mr.

WAYNE

SZEPL,A~C

MACTEC

•

I1OVOICS

Remit to;

MACTEC

Engineering

& Consulting.

Inc.

Federal

ID

68-0146861

7471 Collection Center Drive

Chicago.

IL

60693-0076

V

Proj

6CC

N~m~

EOU~HTOWLITIGATION

•

Project

Number:

3205030049

•

Invoice Date

:

16-APR-03

•

IflvoiCe Number:

8017046

•

FOr Professional Services through:

04-APR-03

ASSIST 5011ORT TRtJCI(ING WXT2t IPC~LITIGATION

Reimbursable

Rxpansea

3

Communication

Fee

Qty

lION

Rate

Reimbursable

Expenses Subtotal

Task

01

Subtotal

Qty

UOM

Rate

Amount

04/04/03

5.00

Hour8

).30~4~

782.SB

04/04/03

.25

Hours

43.48

10.87

Cost

Markup

793.45

Rinount

23.80

23

80

817.2S

Invoice Total

817.25

Project

Summary

Previously Billed

Current Invoice

Total

Billed.

To

hiate

Authorized

Budget

Total

Billed

To Date

Remaining

Authcmrised

Budget

Task

Number

01

-

LITIGATION SUPPORT

LITIGATION

SUPPORT

Title

Name

Assocjate Engineer/Scientist Smith,

3Cip J.

Clerical

Icolis, Theresa A

Professional

Services

Subtotal

Date

0.00

817.25

817.25

2,813.00

817.25

1,995.75

MACTEC

Engineering

and CQJ

4~In~,

Inc.

5440

N.

Cumberlanci Ave.. Suite 250k Chicago,

IL 60656

773-693-6030

•

Fax:

773-693-6089

---

Jan

24 05 09~49a

BOUGHTON

TRUCKING

16308041436

p.4

BOUGHTON TRUCKING& MATERIALS, INC.

5O~3O

MACTEC

5/16/2003

Data

pe

Reference

Original

Amt.

Balance Du~.’

I~iscount

Payment

04/16/20~9aI’Bill

8017046

817.25

817.25

\

817.25

Check Amount

817~25

Cash

Checking

PCB

Issues

81

7.25

•

176901

(5102)

---

lan 24 05 09:49a

•

BOUGHTON

TRUCKING

18309041436

p.5

MACTEC

For Professional Services throught

02-MAY-03

ASSIST

BOUGHT

TRUCXING

WITh XPCB LITIGATION

To:

BOUGHT TRUCKING AND MATERIALS

11746 S. NAPERVILLE

ROAD

PLAINFIELD,

IL.

60544

Attn: Mr.

WAYNE

SZEPLAK

Project Name

:

BOUGHTON

LITIGATION

Project

Number:

3205030049

Invoice

Date

:

14-MAY-03

Invoice

Number:

8022142

MACTEC

EngIneering and

Consulting,

Inc.

6440

N.

Curnberland

Ave.,

Suite 250• Chicago,

IL

60656

773-693-6030

•

Fax:

773-693-6039

INVOICE

Remit

to:

?4ACTEC Engineering

& Consulting,

Inc.

Federal ID 68-0146861

7477

Collection

Center

Drive

Chicago, IL

60693-0076

if

Task

Number

01

-

LITIGATION SUPPORT

LITIGATION SUPPORT

Title

Name

Clerical

Associate Engineer/Scientist

Reimbursable

Expenses

3~ Communication

Fee

FEDERAL

EXPRESS

Project

Summary

Previously

Billed

Current

Invoice

Total Billed To Date

Date

Qty

.

tJQM

Rate

Amoun

Hill,

Stephanie Lynne

04/18/03

•

1.00

Hours

43.48

43.4

Smith,

Kip J.~

04/25/03

1.50

Hours

130.43

195.6

Professional

Services

Subtotal

Qty

TJOM

Rate

Cost

Markup

‘

Amoui

7.~

38101

10.11

15.0000

1l.~

R~imbursab1eExpenses Subtotal

18.1

Task 01 Subtotal

257.

Invoice Total

257.

~

257.93

L~tm1c_1~-..

Page

1

---

Jan 24 05 09:49a

BOUGHTOM

TRUCKING

16309041436

p.S

-

...~JJect

Name

:

BOUGHTON LITIGATION

Project

Number:

3205030049

Invoice

Date

:

14-MAY-03

Invoice

Number:

8022742

Authorized Budget

2,813.00

Tàtal. Billed To Date

1,OIS.18

Remaining Authorized Budget

1,737.82

Page

2

---

J.ari

24

05

09:49a

BOUGHTON

TRUCKING

16309041436

p.7

BOUGHTON TRUCKING

&

MATERtALS,

INC.

MACTEC

Date

Type

Reference

.05f14/200

Bill

8022742

Cash

—

Checking

PCB

Issues

176901

(8102)

6/4(2003

Original

Amt.

Balance ~

biscount

257.93

‘257.93

\

Checj

Amount

50937

Payment

257.93

257.93

257.93

---

J.~

24 05

09:50a

16309041436

BOUGHTON

TRUCKING

Harding

Lawson Associates

Remit

to:

Harding

Lawson

Associates

Federal

ID

68—0146861

P.O~ Box

44329

San Francisco, CA 94144

—

a ~

Professional

Services

Princ±pal~ Engineer

Head.~-~r.

H.

John

Senior

engineer

Smith,

Mr..

Rip

J.

Accounting

Technician

I

Nielsen,

Ma.

Jacqueline

Professional

Services

Total

Reimbursable

Expenses

Communication

Charge

Total

Reimbursable

Expenses

Engineering

and

Erw)ronrnefllal

Services

Axtount

$

1,200.00

880.00

26.00

2,106.00

Markup

Amount

63.18

63.18

$

2,169.18

1420

Kensingor~

Road, Suite

213,

Oak

Brook.

IL 60523

630/571-2162

Fax: 63O/571-0~39

Project

Nai~ie:

T~BW-Boughton

Trucking

Project No.

:

47668

Invoice Date:

21—JUL—99

Invoice

No.

:

193696

To:

Tracy,

Johflson, Bertani & Wilson

115 North Chicago Street

Suite 600, Two Rialto Square

Joliet,

IL

Atti~

Mr.

Roger

Rickmon

For Professional

Services

through:

09—JUL--99

8.00 hrs

@ 150.00/hour

8.00

hrs ~ 110.00/hour

.50

hrs

@

52.00/hour

Qty

Rate

UCH

Cost

Total trivoice

---

.~an

24

05

09:50a

BOUGHTONTRUCKIMG

16309041436

P.9

BOUGHTON TRUCKING &

MATERMLS,

INC.

43 45•

Harding

Lawson Associates

9/17/99

09/16/99

Bill #193696

2,169.18

Cash

-

Checking

Environmental Engineering

Services

2,16918

1~l45

(3/99)

---

Message

,

ATTACHMENT

2

Page

1 of 2

Sharkey,

Patricia

F.

From:

Michael S. Blazer mblazer@enviroatty.com

Sent:

Sunday, January 23,

2005 1:48 PM

To:

Sharkey, Patricia F.

Subject: RE: Pattermann

v. Boughton; Respondent’s Costs

Pat:

I have had a chance to review your list of “costs”. In the

context of a Voluntary Dismissal,

I am unable to findany

support for the

award of the items you seek in either Section 2-1009 or Supreme Court Rules

208and 219. First,

thecase law is clearthat

attorneys’ fees and expenses, including travel expenses and the like, are not

recoverable. See

Gilbert-Hodgman, Inc.

v.

Chicago Thoroughbred Enterprises,

Inc.,

17 lll.App.3d 460 (1st Dist.

1974). Likewise, in this context, expert witness and deposition fees and expensesare not

recoverable. See

Vicencio

v. Lincoln-Way Builders, Inc.,

204 lll.2d 295 (2003)’;

Galowich

v. Beech Aircraft Corporation,

92

lll.2d 157

(1982). Any reliance you

may be placing on Supreme Court Rule 219(e)

in this regard

is misplaced, as that

provision applies only to circumstances evidencing sanctionable conduct. See

Morrison

v.

Wagner,

191 lll.2d 162

(2000);

Scattered Corp.

v. Midwest Clearing Corp.,

299 lll.App.3d 653 (1st Dist.

1998).

I note that the costs that

are allowed

in this context, filing fees and the like, are absent from your correspondence.

In any event, as set forth in our Motion, we remain ready to

pay appropriate costs upon presentation of the same.

I do not, however, wish to foreclose you from substantiating your position, and

I would welcome citations to any

authorities that are contrary to or have overruled that set forth above.

Mike

Michael S. Blazer

Principal

The Jeff Diver Group, LLC.

1749 S. Naperville Road

Suite

102

Wheaton,

IL

601 87

(630) 681-2530

Fax:

(630) 690-2812

Mobil:

(708) 404-9091

mblazer@enviroatty.com

This e-mail is covered

by the

Electronic Communications Privacy Act,

18 U.S.C.

§~

2510-2521 and is

legally

privileged,

including any attachments, contains information that is confidential, may be protected by the

attorney/client or other applicable privileges,and may constitute non-public information.

This message is

intended to be conveyed only to the designated recipient(s).

If you are not the intended recipientof this

message,

please immediately notify the sender that you have received this message

in errorand

delete-this

message.

Unauthorized

use, disclosure, dissemination, distribution or reproduction of this message or the

information contained in this message or the taking of any action

in reliance on

it is

strictly prohibited andmay be

unlawful. Thank you foryour cooperation.

Original Message

From:

Sharkey,

Patricia

F.

mailto:

PSharkey@mayerbrownrowe.com

Sent:

Friday, January

21,

2005 5:30

PM

To:

Michael

S.

Blazer

Cc:

Desharnais, Kevin;

Gale,

Michelle A.;

Ter Molen, Mark

R.

Subject:

Pattermann v. Boughton; Respondent’s

Costs

1/24/2005

---

ATTACHMENT

3

ILLINOIS

POLLUTIONCONTROL

BOARD

August 7,

2003

GINA’

PATTERMANN,

)

Complainant,

)

)

v.

)

)

PCB99-187

BOUGHTON

TRUCKING AND

)

(Citizens Enforcement

-

Noise, Air)

MATERIALS, INC.,.

)

)

Respondent.

)

ORDER OF THE BOARD

(by N.

J.

Melas):

OnMay 23,

2003, respondent Boughton Trucking

and

Materials, Inc., (Boughton) filed a

motion for discovery sanctions against the complainant m this proceeding, Ms

Gina Patterman

(Mot)

Ms

Patterman filed this citizens’ enforcement complaint against Boughton on June i’

1999, alleging noise and air pollution violations.

On June 10, 2003, Ms.

Pattènnan

filed a

response to the motion for discovery sanctions (Resp.).

Boughton replied to Ms.

Patterman’s

response on June 20, 2003 (Reply).

The Boughton facility is a stone quarrythat produces

crushed stone, located at 11746 South Naperville Plaiafield Road in Plainfleld, Will County.

•

For the following reasons, the Board

grants

Boughton’s motion for discovery sanctions in

part

and denies the motion.in part.

The Board

bars Mr. Zak

from testifying at

hearing

regarding

Boughton’s noncompliance with illinois Environmental Protection Agency (Agency) regulations

and possible modifications to Boughton’s facility.

However, the Board doesnot bar anyother

witnesses, pleadings, or documents pertaining to thesubject matter ofMr. Zak’s proposed

testimony, nor does the Board award Boughton attorney fees.

BACKGROUND

Boughton alleges thatMs.

Patterman represented

she had retained

Mr.

Greg Zak

as an

expert witness to testify at hearing.

Mot. at 2.

Boughton issued Mr.

Zak

a subpoena and ‘sent

him a notice ofdeposition for April 23, 2003.

Id.

In response, Mr. Zak sent Boughton a

contract stating the fee for

his

services.

Boi.ighton informedMs.

Patterman

and Boardhearing

officer Brad Halloran ofthe alleged erroneous billing.

Mot. at 2.

Boughton alleges that in a

telephonic status conference with

all

threeparties on March 27, 2003, Ms.

Patterman stated

she

understood her responsibilityto retain herexpert

witness.

Id.

Boughton deposed Ms.

Patterman

on April 8, 2003.

Mot. at 2.

At the deposition,

Boughton claims that its attorney

asked

Ms. Patterman to confirm that Mr. Zak would attendhis

deposition

and

Ms.

Pattennan stated

she thought Mr.

Zak

would be

there.

Id.

---

.

‘

.

2

On April 23,

2003, Mr.

Zak

did not appear at

his

scheduled

deposition with Boughton.

Mot.

at 3.

Boughton contacted Mr. Zakby telephone who responded that he had not

been

retained by Ms. Patterman.

Boughton and Mr. Zak

left a voice mail message to this

effect

for

hearing

officer Halloran.

Id.

Ms.

Pattermanclaims

that she has retained Mr. Zak as a

noise

expertwitness

and that she

is prepared to compensate him for

his services. Resp. at 2.

However, Ms. Patterman

did not

support these facts with a signed affidavit.

APPLICABLE REGULATIONS

Under Section 101.800(b), the Board will order sanctions when a

partyfails

to comply

with

procedural rules, board orders or hearing officerorders.

35

111.

Adm.

Code

101.800(b).

Sanctions

can

include barring the offender from filing pleadings or documents related to any

issue to which the refusal or failure relates.

35

111.

Adm.

Code 1O1.800(b)(2).

The Board may

also

bar

awitness from testifying concerningthat issue.’

35

111.

Adm.

Code

101.800(b)(6).

In deciding what sanction to impose, the Board

must consider four

factors:

The relative severity ofthe refusal or failure to comply; the past ~istoryofthe~

proceeding; the degree to whichthe proceeding

has

been delayed orpredjudiced;

and

the existence or absence ofbad

faith

on the

part

ofthe

offending party

or

‘

-

person.

35

111.

Adm.

Code 101.800(c).

BOUGHTON’S

ARGUMENTS

Boughton requests the Board to bar Mr. Zak as awitness and bar any additional

witnesses, pleadings, or

documents pertaining

to the subject matter ofhis testimony.

Mot. at

5,

9.

Boughton also asks the Board to award Boughton attorney fees attributable to Ms.

Patterman’s abuse of

discovery

process in the amount

of

$19,520.25.

Mot.

Exh. 4.

Boughton

argues thatMs. Patterman’s assertion that she has retained Mr.

Zak

was

unsupported by an affidavit as

required

by

Section

101 .504 ofthe Boardrules, and

therefore,

insufficient as a

matter

oflaw.

Reply at 1;

citing

35

111.

Adm.

Code

101

.504.

•

Boughton

further

argues that Ms. Patterman’s alleged retention is late.’ Reply’ at 2~Board

hearing

officer Brad

Halloran

ordered the parties

to complete

all

depositions

by May 2, 2003.

Mr. Zak’s

deposition

was scheduled for April 23, 2003.

Ms.

Patterman

did

not seek to

remedy

her failure to provideMr. Zak for deposition until she filed theresponse

on June 10, 2003.

Reply

at5.

Boughton argues that in

this instance sanctions

are warranted due to Ms.

Patterman’s

negligence and abuse ofBoard proceduralrules.

Boughton contends that Ms. Patterman’s history

ofabuse ofthe discovery process in

this proceeding warrants

sanctions.

Mot. at

5-6.

Boughton.

argues that Ms. Pattenrian

refused

to produce a

document

identified in her

interrogatory

responses pertaining

to property values in the subdivision

allegedly impacted

by Boughton’s

operations.

Mot. at 6.

Boughton filed a motion to compel production ofthe

document

and

Ms.

---

‘0~,,

.

I

Patterman

claimed herhusband from whom she had

recently separated possessed

the document.

Boughton subpoenaed Mr. Patterman for the document and he failed to appear at the deposition

and failed to provide the subpoenaed document.

Boughton argues that Ms.

Patterman has failed

to appear at least six status conferences set by hearingofficer order.

Boughton further argues that

Ms.

Patterman

failed to provide addresses orphone

numbers

for two ofher four witnesses that

has caused Boughton

significant

delay in proceeding with discovery.

Boughton argues that Ms.

Patterman

also exhibited

bad faith.

Mot.

at 10.

Boughton

opines that Ms. Patterman knew she hadnot retained Mr.

Zak

at the time she identified him as

her witness.

Ifnot intentional, Boughton argues that causing Boughton to

incur

the expenses

assoàiated with preparing for and traveling to

a deposition

where the deponent did not appear

was clearly negligent.

Mot. at

11.

Boughton contends that Ms. Patterman

knew

she did not

retain Mr. Zak and neglected to

inform

Boughton.

Boughton argues that,for all ofthesereasons,

sanctions

against

Ms.

Patterman are

warranted.

PATTERMAN’S RESPONSE

•

~‘‘‘

“

Ms. Patterman’s responds that Boughton has not established prejudicerestiltin~

from the.

delay in discovery, has not shown

any

bad faith on the part

ofMs.

Patterman.

Resp.

at

3-4.

Ms.

Patterrnan admits that

there was a lack of

clarity surrounding Mr. Zak’s attendance

at the:

deposition scheduled for April 23, 2003.

Ms. Patterman

states

she merely

thought

that Mr. Zak

would attend the deposition andthat Boughton should have

confirmed Mr. Zak’s attendance

before preparing for a deposition that was not ‘certainto occur.

Id.

Ms.

Pattennan

also contends that she has officially retained Mr. Zak.

Resp.

at 3.

Ms.

Patterman argues thatBoughton’s contentions ofbad faith are merely “unsubstantiated

speculation.”

Resp.

at 4.

M& Patterman argues the solutionis to take Mr.

Zak’s

deposition, not

barhis

testimony.

Id.

Ms. Patterman also contends that the attorney fees Boughton seeks for the

cancelled

deposition

are

unreasonable.

Resp. at

4.

Ms. Pattenrian argues the Board procedural rules do not

allow the Board to monetarily sanction the offending party.

Resp.

at

5;

citing

Revision

ofthe

Board’s Procedural Rules:

35 ill. Adm Code

101-130. R00-20,

slip

op. at

7-(Dec.

21,2000).

Ms.

Patterman further

asserts thatBoughton provided no breakdownofcosts or othermethod for

detennining

the reasonableness ofthe amounts sought.

Ms. Patterman doesconcede, however,

thatBoughton may be arguably entitled to costs for travel to and attendance atthe cancelled

deposition.

DISCUSSION

In assessingwhether sanctions are

warranted,

theBoard must

detennine

ifMs.

Patterman

violated a hearing officer order, board order, or procedural rule, including anysubpoena issued

by the Board.

35111. Adm.

Code 101.800(a).

The Board.must also consider therelative severity

ofthe refusal or failure to comply, thepast history ofthe proceeding, the degree

to which the

---

..

4

proceeding has been delayed or prejudiced,

and

the existence or absence ofbad faith on the part

ofthe offending party.

The goal ofimposing discovery sanctions is to promote

discovery,

not

necessarilyto punish.

EPA v. Celotex Corp.,

168111. App. 3d 592, 522 N.E.2d 888

(3rdDist.

1988).

‘

The Board finds Ms. Pattennan’s conduct has

amounted

to an abuse of

discovery and

grants

Boughton’s motion for discovery sanctions in

part.

Under Section 101.616(f),

failure

to

comply with

any

order regarding discovery may subject the offending persons to sanctions.

35

111. Adm. Code 101.616(f).

Here, Mr. Zak didnot appear at his

scheduled deposition because

Ms. Pattennan had not

retained

him.

Ms. Patterman does not dispute these facts.

In addition, the

hearing officer ordered that the parties complete all depositions by May 2, 2003.

By not making

Mr. Zak

available at

his scheduled deposition

or any other

time

before May 2, 2003, Ms.

Patterman did not comply with the

hearing officer’s order

to complete all depositions by a tithe

certain.

In addition, Ms.

Patterman

prevented Boughton from

completing

any discovery

deposition ofher expert noise witness.

Ms.

Patterman has violated

several hearing officer orders

in the pastby not appearing at status meetings andby notproducing a document

subpoenaed

by

Boughton.

The Board finds that Ms. Patterman’s conduct amounts to

an abuse ofthe discovery

process.

‘

.

,

•

.

The Board will not grant Boughton’s motion to barthe testimony ofany otherwitnesses,

pleadings, or documents pertaining to the subject matter of Mr. Zak’s proposed testimony.

However, the Boardnotes that the

current

discoveryschedule set by the parties together with

the

hearing officer ordered all depositions completed by May

~,

2003, and all

dispositive motions

filed on or before May 30, 2003.

Regarding attorneyfees, the appellate

court

has held that the Board has no authority to

award attorney fees as a sanction.

ESG Watts. Inc. v. PCB.

286111. App. 3d 325,

337-338, 676

N.E.2d 299, 307-08 (3d Dist.

1997);

see

Revision ofthe Board’s Procedural

Rules:

35 ill.

Adm.

Code 101-130. R00-20, slip op. at 7 (Dec. 21,2000).

Accordingly, the Board denies Boughton’s

motion for attorney

fees.

CONCLUSION

The Board grants Boughton’s motion for discovery

sanctions

in

part and

denies

the

motion in part.

The Board

bars

Mr. Greg Zak’s testimony at hearing, but denies

Boughton’s

motion to bar

any

otherwitnesses, pleadings,

ordocuments pertaining to the subjectmatter of

Mr. Zak’s proposed testimony.

The Board also denies Boughton’s motion for attorney

fees.

The

Board finds the sanction it imposes today is appropriate to remedy the abuse ofthe discovery

process the Board fmds todayand to promote timely ~liscovery

in the future.

IT IS SO ORDERED.

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I.

•~

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5

I, Dorothy M.

Gunn,

Clerk ofthe illinois Pollution Control

Board,

certify that the Board

adopted the above order on August 7, 2003, by a vote of7-0.

•

~

L~

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board