NOTICE OF FILING AND PROOF OF SERVICE
I. INTRODUCTION
II. STATEMENT OF FACTS.
A. The Board’s Procedural Rules do not Create a Jurisdictional Requirement.
B. The Board Should Exercise Its Discretion to Review this Appeal on theMerits.
1. Technical Failures in Electronic Filing are Grounds for Relief.
by Regular U.S. Mail.
3. The Purposes of the Act are Advanced.
IV. CONCLUSION.
MOHAN, ALEW~LT,FRILLAMAN & ADAMI
POLICY FOR IMPLEMENTATIONOFAN
ELECTRONIC FILING PILOT PROJECT IN ILLINOIS’ COURTS
Article 5: E-Filing
FORM D
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
VI. Entry ofCourt Orders
VIII. Restricted or Sealed Documents
X. Signatures ofFiling Users
XI. Service ofDocuments by Electronic Means

RECE

WED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL

BOA9EB

1 42005

ILLINOIS AYERS OIL CO.,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

Nos.

PCB 05-048

)

(UST Appeal)

)

STATE OF ILUNOIS

Pollut~oflControl Board

NOTICE OF FILING AND PROOF OF SERVICE

TO:

Dorothy Gunn, Clerk

Illinois Pollution Control Board

100 West Randolph Street

State of Illinois Building,

Suite 11-500

Chicago, IL 60601

John Kim

Carol Sudman

Hearing Officer

Illinois Pollution Control Board

1021

North Grand Avenue

East

P.O. Box

19274

Springfield,

62794-9274

Division ofLegal Counsel

Illinois Environmental Protection Agency

1021

North Grand Avenue East

P.O.

Box

19276

Springfield,

IL 62794-9276

PLEASE BE ADVISED THAT we are today filing with the Pollution Control Board by U.S.

mail the original and nine copies of Petitioner’s Motion for Reconsideration or in the Alternative, for

Extension ofTime

to File Appeal, a copy ofwhich is attached hereto.

The undersigned hereby certifies that

a true and correct copy of this Notice of Filing, together

with

a copy ofthe document described above, were today served upon the hearing officer and

counsel ofrecord ofall parties to this cause by enclosing same in envelopes addressed to

such

attorneys at their business addresses as disclosed by the pleadings ofrecord herein, with postage fully

prepaid, and by depositing same in the U.S.

Illinois

on the

10th

day of

February,

2005.

MOHAN, ALEWELT, PRILLAMAN & ADAMI

North Old Capitol Plaza, Suite

325

Springfield, IL 62701

Tel:

 (217) 528-2517

Fax: (217)

528-2553

THIS FILINGSUBMITTEDON RECYCLED PAPER

C:\Mapa\CSD Environmental\Notice ofFiling 021005.wpdlcrk 2/10/05

3:17

RECE~VED

BEFORE

THE ILLINOIS POLLUTION CONTROL BOAR9LERK’S

OFFCE

ILLINOIS AYERS

OIL CO.,

)

FEB

142005

)

STATE OF ILUNOIS

Petitioner,

Pollution Control

Board

)

PCB No. 05-48

vs.

)

(UST Appeal)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

PETITIONER’S MOTION FOR RECONSIDERATION

OR IN THE ALTERNATIVE.

FOR EXTENSION OF TIME TO FILE APPEAL

NOW COMES Petitioner, Illinois Ayers Oil Company (hereinafter “Illinois Ayers”),

pursuant to Sectionl0l.520 and Section 101.522

of

the Board’s Procedural Rules

(35

Ill. Admin.

Code

§101.520;

§101.522),

to seek reconsideration ofthe Board’s order dismissing this appeal,

or to extend the appeal deadline herein, stating as follows:

INTRODUCTION

On January 6, 2005, the Illinois Pollution Control Board (herein “the Board”) dismissed

this appeal

sua sponte

for want ofjurisdiction.

A party may file a motion for reconsideration

within 35

days ofthe receipt of any final Board order.

(35

Ill. Admin.

Code §101.518)

Citizens Against Regional Landfill v. CountyBoard of Whiteside, PCB

93-156

(Mar.

11,

1993),

the Board observed that “the intended purpose of a motion for reconsideration is to bring to the

Board’s

attention newly discovered evidence which was not

available at the time of the hearing,

changes

 in the law or errors in the Board

 ‘s previous application ofthe existing law.” With all

due respect to theBoard, Petitioner believes that the Board misapplied the principle of

jurisdiction in this matter and may have overlooked evidence that accompanied the Petitioner’s

filing.

Letter to Dorothy Gunn, attached hereto as Exhibit A).

II.

STATEMENT OF FACTS.

This appeal arises fromthe Board’s earlier decision in Illinois Ayers Oil Co. v.

IEPA,

PCB 03-214 (April

1, 2004), in which the Agency was ordered to restore certain corrective action

costs to the budget for this site in Cass County.

After completing the corrective action approved

by the Board, Illinois

Ayers applied for payment.

(Pet. Rev.

¶3)

On July 28, 2004, the Illinois

Environmental Protection Agency (hereinafter “the IEPA”) rejected certain corrective action

costs which had been in the approved budget.

(Pet. Rev. ¶7 & Ex. A thereto)

On September

1, 2004, the JEPA filed a joint request for an

extension of the deadline to

appeal its decision.

(Req. 90-Day Extension)

The IIEPA was uncertain ofthe actual date

Petitioner received the IEPA’s July 28, 2004, decision, but believed that the date could be no

sooner than July 29, 2004.

(Id. at¶2)

The IEPA requested a January

2005,

deadline, which

was probably meant to be December

2004.’

The Board extended the deadline to December

2004, which was 125 days from July 29, 2004.

(Order of Sept.

16, 2004)

On December

1, 2004,

Illinois Ayers

attempted to file its Petition for Review by filing

online using the Clerk’s

Office On-Line (“COOL”) system.

(Ex. A)

The system would not

The IEPA mailed its decision on July 28, 2004.

“In the case ofservice by U.S. Mail,

service is presumed.complete four days after mailing,”

(35

Ill. Admin. Code

101.300(c)), which

in this case would be August

1, 2004.

Since August

1st

was a Sunday,

service would be

•presumed completed on August

2~d•

(35 Ill. Admin.

Code

101.300(a))

One-hundred-and-

twenty-five

days thereafter was December

 2004.

2

accept the filing,

so Illinois Ayers mailed the petition by overnight delivery (Federal Express) to

the Clerk’s office.

(Ex.

In the cover letter transmitting the document, Illinois

Ayers

identified the problem and enclosed a printout ofthe error message.

(Ex. A)

The Board received

the Petition on December 2, 2004.

(Order ofJan. 6, 2005)

On January 6, 2005, the Board dismissed the petition, noting that the Board’s procedural

rules differ in their treatment between delivery services other than U.S. Mail and concluding that

the Board lacked jurisdiction to consider this

appeal.

(j~)

III.

ARGUMENT

The Board’s Procedural Rules do

not Create a Jurisdictional Requirement.

The term “jurisdiction” as applied to an administrative bodyrefers to “an agency’s

scope

of

authority under the statutes.”

Business & Professional People v. ICC,

 136 Ill. 2d 192, 243

(1989).

The statute at issue here provides:

If the Agency refuses to grant or grants

with conditions

a permit under

Section 39 ofthis Act, the applicant

within

days after the date on

which the Agency served its decision on the applicant, petition for a hearing

before the Board

to contest the decision ofthe Agency.

However, the 35-day

period for petitioning for a hearing may be extended for an additional period

of time not to exceed 90 days by written notice provided to the Board from

the applicant and the Agency within the initial appeal period.

(415 TLCS

5/40(a)(1)

(emphasis added)

Tackling a similar issue oftimely filing,

the Illinois

Supreme Court stated that “the

language ofsection 40

is permissive, not mandatory.”

M.I.G. Investments, Inc.

EPA,

122

Ill.2d 392, 396 (1988)

When the legislature employs permissive verbs like “may” instead of

“must,” the requirement is not jurisdictional, but a procedural mechanism.

People v. Arnold, 323

3

Ill. App. 3d

102,

110 (1St Dist. 2001).

The difference between ajurisdictional provision and a

procedural mechanism is that a jurisdictional provision is intended to

restrict the discretionary

powers ofthe adjudicative body, while a procedural mechanism pennits the judge to

employ his

or her discretion when a unique factual circumstance is presented.

I~2

Consequently,

Section 40(a)(1) of the Act does not preclude the Board from accepting a

permit appeal commenced on or before a deadline, but actually received after the deadline.

fact, the Board has accepted such a filing before.

Interstate Pollution Control,

Inc. v. IEPA, PCB

No.

86-19 (Mar. 27,

1986).

There, a permit appeal was dispatched to

the Board via Federal

Express on the permit

appeal deadline and received by the Board on the following business day.

Weighing the equities, the Board adopted the mailbox rule set forth in Supreme Court Rule 373,

so that the permit appeal was deemed filed when the petitioner initiated delivery by Federal

Express on the deadline.

In response to the IEPA’s argument that the mailbox rule cannot be

used to extend an

appeal deadline, the Board recognized that the language in

Section 40(a)(1) is

permissive arid capable ofinterpretation as to what constitutes a timelypetition.

The EPA

raised the

issue again before the Illinois Supreme Court in M.I.G.

Investments, which affirmed

the Board’s position that the language of Section 40(a)(1) ofthe Act is permissive and denied the

IEPA’s motion to dismiss

an appeal received by the Board after the appeal deadline.

122 Ill. 2d

392, 396-397 (1988).

That a time limitation is not mandatory orjurisdictional

is not the same as there being

no time limit at all.

See Panhandle Eastern Pipe Line Co.

v. EPA, 314 Ill. App.

3d 296, 304

(4th

Dist. 2000).

There, the Fourth District agreed that Section 40

is “couched in permissive rather

than mandatory language,” but this did not require the Agency or the Board to permit an

appeal

nine years later and

act as if the permit had never been issued.

4

A distinction mustbe

drawn between the time periods set forth in Section

 40(a)(1) ofthe

Act

and

 the bodyof administrative rules

and rulings which establish the

 methodology

 used to

determine when

a filing

is complete.

Clearly, the Board has discrefion as to the latter category of

issues. The Board erroneouslyruled that itwas withoutjurisdiction.

 Cook County State’s

Atty.

Illinois State Labor Rels. Bd.,

292 Ill.

App. 3d

6 (Ill. App.

 Ct., 1997) (an agency’s

refusal to

exercise discretion in the erroneous belief that it has no discretion maybe deemed an

abuse ofdiscretion).

The Board Should

Exercise Its Discretion to Review this Appeal on the

Merits.

TheBoard has discretion to rule on

the timeliness ofthe subject petition based upon the

unique factual circumstances presented.

People v.

Arnold, 323 Ill. App. 3d 102,

110

(1St Dist.

2001). In exercising discretionarypowers, an

administrative body must actjudiciously, not

arbitrarily.

Robert N. Nilles, Inc.

v. Pollution Control Board,

 17 Ill. App. 3d 890, 894 (1974).

Under the circumstances presentedhere, the Board would be acting judiciously to consider the

subject filing

to be timely.

Technical Failures in Electronic Filing are Grounds for Relief.

The Board has authorized and encouraged electronic filing of

all documents.

 Illinois

Ayers’ technical difficulties in completing the filing pose unique circumstances which should be

considered in ruling upon the timeliness ofthe

filing.

Electronic filing holds the potential to

increase access to the courts and government

agencies, to

reduce administrative costs,

to provide benefits to

the environment and to speed the

filing and resolution of legal issues.

Weighed against these numerous benefits are the ongoing

risk of technical failures in new and not entirely stable technology.

Such technical problems can

hinder access to the courts.

InU.S.

Leather, Inc.

v. H&W Partnership,

60 F.3d 222, 226

(sth

Cir.

1995),

an ice storm knocked out power and phone lines, trapping post-trial motions inside an

attorney’s computer~Even though the courthouse was open on the day of the deadline, reprieve

from thejurisdictional deadline was given on the grounds that weather or other conditions

had

made the office of the clerk of the district court inaccessible.

Id.

Due to the risk oftechnical failures in electronic

filing (and no doubt also the desire to

encourage electronic

filing), courts have provided directions for the steps to take in such an

event.

The Illinois Supreme Court has authorized electronic filing

as a pilot project in the circuit

courts, but only after explaining to the Court’s satisfaction the “procedure to

follow in the event

ofhardware or software failure.”

(S. Ct. Policy, ¶A(8)(f) (attached hereto as Exhibit B)) The

Court did not specify any procedures, but it approved the procedures implemented in the

8th

Judicial Circuit Court (DuPage County), which are attached hereto as Exhibit C.

In pertinent

part, the procedures provide:

Ifthe electronic filing is not filed with the Clerk because of (1) an error in the

transmission of the document to the Vendor which was

unknown to the

sending party, or (2)

a failure to process the electronic filing when received

by the Vendor, (3) rejection by the Circuit Court Clerk, or (4) other technical

problems experienced by the filer, or

(5)

the party was

erroneously excluded

from the service list,

the Court may upon satisfactory proof enter an order

permitting the document to be subsequently filed effective as of the date

filing was first attempted.

(Ex. C, ¶5.14(b))

Federal courts have similarlyimplemented procedures in the event of

technical failure.

The Central District ofIllinois

federal courthas lengthy provisions, excerpts from which are

attached hereto as Exhibit D.

Some ofthe key features include

a statement that “known

systems outages will be posted on the Court’s web site, if possible.”

(Ex.

D, ¶1

(emphasis

added))

In the event ofa technical failure, the party should print (if possible) a copy ofthe error

message received and file a declaration that the party was unable to

file in a timely manner due to

technical difficulties.

(Ex. D, ¶1(b))

If a party misses a filing deadline due to technical

problems, the document maybe conventionally submitted with the declaration by no later than

12:00 noon on the business day following the original filing deadline.

(Ex. D, ¶2)

Notably, the

timing limitations suggests that delivery by U.S. mail would in almost all cases be insufficient.

The

Court will thereafter “order appropriate relief.”

(Ex. D, ¶2(b))

The U.S. District Court for

the Northern District ofIllinois similarly provides that an untimely filing resulting from technical

failure may be relieved by the court “for good cause.”

(Ex. E, ¶Xffl(A))

To date, the Board has not adopted procedural rules for electronic filing.

This does not

preclude the Board’s authority to make an adjudicative ruling based uponthe facts ofthis case, as

was essentiallydone in Interstate Pollution Control, PCB

86-19.

In exercising its

discretion

judiciously, the Board should look to judicial precedent.

While electronic filing

is new,judicial

practice consistently recognizes that relief should be given for filings rendered untimely as a

result of technical failures outside ofthe control ofa party.

The courts require the petitioner to

document

the problem and

at least in the federal courts referenced, bring the problem to the

court’s

attention “immediately” or by noon the next day.

(Ex. D ¶jH(2)(B);

Lx. E,

Xffl(B))

7

While presentment of

the problem as soon as practical may help evidence that the technical

difficulties

are bona

 fide, the primaryjustification appears to be the desire to help the courts fix

any technical problems withthe system promptly.

Illinois Ayers indicated in its transmittal letter to

the Clerk ofthe Pollution Control

Board,

the existence ofa technical failure that precluded electronic filing, including

a printout of

the

error message

 received.3 By

filing the petition by overnight mail, Illinois Ayers brought the

matter to the attention of

the Clerk’s Office promptly.

In determining how the Board should

exercise its discretion judiciously,

the Board should consider that the steps taken by Illinois

Ayers were consistent withthe variousjudicialprocedures

for technical failures referenced

herein.

These judicial procedures indicate that Petitioners’ filing would have been deemed

timely under these circumstances.

Overnight Delivery is At Least as Good as, if not Better than, Mailing

by Regular U.S.

Mail.

For at least fifteen years, the Board’s procedural rules treated Federal Express overnight

delivery no different than regular U.S. mail.

As stated earlier, the Board first adopted the

“mailbox” rule for a permit appeal

filed by Federal Express.

Interstate Pollution Control, Inc. v.

EPA, PCB No. 86-19 (Mar. 27,

1986).

The Board subsequently codified this decision.

Procedural Rules Revision, R88-5(A) (June 8,

1989).

The Board accepted filing made by

~ The Board may take official notice that

counsel for Illinois Ayers has filed documents

electronically with the Board previously.

Mather Investment Properties, L.L.C.

Illinois

State Trapshooters Ass’n, Inc., PCB No.

05-29.

8

Federal Express pursuant to the “mailbox” rule for fifteen years with no reported difficulties.

The procedural rules were amended in

2001

to distinguish U.S. mail from other mail delivery

services.

(35

Ill. Admin. Code

101.300(b)) The change did not appear to give rise to

any

comment from the Board or the public.

~

 In re Revision of

the Board’s Procedural Rules, R97-

8, at p. 10 (Oct. 3, 1996) (describing the revised requirements as “mirroring

 existing ones”)

Under the circumstances ofthis case,

there is no material advantage to mailing the filing

by U.S. mail. The Board’s

procedural rules presume that U.S. mail will take four days

(35

Ill.

Admin. Code

101.300(c)), whereas overnight delivery purports to,

and in fact did in this case,

makedeliveries

within 24

 hours.

Further, the Board and its hearing officers often dispense with

the “mailbox” rule for internal filing requirements in order to meet decision deadlines.

The

effect of dispensing with the mailbox rule is to discourage the use ofregular mail and its

unpredictable delivery times.

With respect to proving that filing was actually commenced on the

decision deadline, U.S. mail is also no better than Federal Express.

The Supreme Court Rules

were amended in 1981

to avoid reliance on post marks because of“problems with the legibility

of post marks,

and delay in affixing them in some cases.”

S. Ct. R. 373

(Committee

Comments).

In adopting Supreme Court Rule 373, the Board similarlynoted that postage meters can be

modified to

stamp envelopes with a date prior to

actual mailing.

(In re

Procedural Rules

Revision,

R88-5(A),

at p.

100-99)

In contrast, the Federal Express tracking number makes it

possible to

trackwhen a package was deposited in the event a dispute arises.

The primary

purpose of the mailbox rule,

however, is not to

speed filing or avoid problems ofproof, but to

provide a convenience to counsel, particularly those located away from the place offiling.

The

Board previouslynoted that

a liberal “pro-mailing” policy is more equitable for persons not

located in the Chicago area thathavethe option ofusing a messenger service to the Clerk’s

Chicago.office.

 at 100-99)

Regardless ofthe comparative merits of mail delivery services, the filing in this case was

actually received by the Board on December 2, 2004, no

later than it ~vouldhave been received

by U.S. mail.

There can be no

doubt that the filing was commenced on or before December

2004.

Under these circumstances and given the Board’s past application ofthe “mailbox” rule to

Federal Express overnight deliveries, the filing should be accepted as timely.

The Purposes of the Act are Advanced.

The purpose in allowing a ninety-day extension oftime to

appeal is to

encourage parties

to resolve all or some

of their disputes between themselves.

E&L Trucking

Co.

v. EPA,

PCB 02-101, at p.

(Mar.

7, 2002) (“This 90-day extension period has been widely accepted as a

statutory period oftime in which the Agency and the applicant may continue to narrow the issues

ofthe determination that may be the subject ofthe appeal.”) This

is particularly important in

proceedings in which the Board is under strict statutory time limits.

Overly strict application of

the time within which settlement discussions must conclude would tend to chill utilization ofthis

valuable procedure.

Furthermore, the general purposes ofthe Act, j~to

promote a healthy environment,

would be advanced by accepting this appeal.

Dismissing this case would pose the potential harm

of

non-payment for corrective action deemed necessary by the Board to mitigate a threat to

human health andlor the environment.

In the past, the Board considered the potential harm to

the

10

environment from strictly requiring the EPA to initiate the enforcement process within 180 days.

People v. Crane, PCB 0 1-76, at pp.

16-17 (May

17, 2001)

 (interpreting time restriction in Section

3l(a)(1) ofthe

Act to

be directory).

The Board should similarly consider the potential impact of

its ruling on the policies found in the Act.

In the Alternative, Petitioner Moves

the Board To Extend the Time to Appeal

Retroactively.

Whether or not the Board agrees as to

thejurisdictional issue, this case is distinguishable

from other appeals which have been dismissed

for want ofjurisdiction in that there has been no

question raised as to the timeliness ofthe initial filing.

Under Section 40(a)(1) ofthe Act, the

Board is vested with jurisdiction upon either the filing of an appeal or upon written notice ofan

extension ofthe appeal deadline.

(415

ELCS

5/40(a)(1))

The timely filing ofa notice vests the

Board with jurisdiction to

extend the appeal period “for an additional period oftime not to

exceed

90 days.”

(~)

Accordingly, this case must be distinguished from those situations in

which the failure to make an initial filing precluded thejudicial body from taking any action.

Upontimely filing of

the notice, the Board was vested with limited jurisdiction to extend the

appeal deadline.

Here, the parties notified the Board that the appeal deadline would be extended to January

2005, an

extension that would clearly have exceeded the statutory limitation.

The notice

alternatively asked

for a date “not more than a total of one hundred twenty-five

(125)

days from

the

date ofservice ofthe Illinois EPA’s final decision.”

(Req.

90-Day Extension)

Illinois Ayers

submits that the Board was, and remains, authorized to

extend the appeal

deadline to

December

11

 2004, utilizingthe Board’s presumption that service

by mail is completed in four days

(35

 Ill.

Admin. Code §101.300(c)) and the rule excluding Sundays whenthe time to perform an act

falls

 a Sunday.

(35

Ill. Admin.

Code

101.300(a);

ILCS

70/1.11)

Accordingly, the Board has

jurisdiction for the limited purpose ofextending the appeal deadline for a period no later than

December

5, 2004.

This case is distinguishable from Wei Enterprises v.

EPA, PCB No.

04-23 (Feb.

19,

2004), wherein the petitioner did not ask the Board to

extend the decision deadline beyond that

which the Board initially granted.

Instead, the petitioner argued that the Board had contravened

its own regulations in extending the appeal deadline to

the precise date specified

in thejoint

notice.

Had the petitioner actually moved to

extend the decision deadline retroactively, it is not

clear that the Board would have granted the relief on the ground given since there was no basis

the argument that the Board had erred.

In the event that the Board rejects Petitioner’s argument concerning jurisdiction,

Petitioner asks the Board to extend the decision deadline retroactively to December

2004, in

light ofthe special circumstances set forth in this motion.

Nothing in Section 40(a)(1) ofthe Act

precludes such relief, so long as the 125-day limitation is not exceeded.

Nothing in Section

40(a)(1) of the Act precludes that availability of such relief retroactively.

There may be good

cause to do

so from time to time.

For instance, if the parties or the Board inadvertently extend

the appeal deadline by only nine days, when ninety days was intended, fundamental fairness may

require retroactive extension ofthe appeal deadline.

The Board’s procedural rules contemplate

extensions.of time for good cause shown “either before or after the expiration date.”

(35 Ill.

Admin. Code

§101.522)

12

Here, good cause was shown by virtue ofthe technical difficulties in attempting

electronic filing and the good-faith effort to file the document as soon as possible using overnight

mail.

While a request for an extension of time is not quite the same as a continuance, the

standards are comparable.

“A court or administrative body possesses a broad discretion whether

allow or deny a motion for continuance, but it is a discretion which must be exercised

judiciously, and not arbitrarily. A continuance should not be denied where clearly it is required

by the ends ofjustice,

and a refusal to grant it is an abuse ofdiscretion warranting reversal.”

Brown v. Air Pollution Control Board, 37 Ill. 2d 450, 454-455 (111.1967).

For these reasons, Illinois Ayers requests an extension ofthe decision deadline to

December

2004.

As a practical matter, however, an extension of one day would be sufficient

to render moot any question oftimeliness ofthe appeal.

IV.

CONCLUSION.

For the reasons stated herein, Illinois Ayers prays for an order reconsidering the Board’s

January 6,

 2005, order and reinstating this appeal, or inthe alternative, an order extending the

appeal deadline to December

 2005 and reinstating this appeal, or for such other reliefas the

Board deems meet and just.

13

ILLINOISAYERS

OIL

 CO., Petitioner,

BY:

MOHAN, ALE

WELT,

PRILLAMAN & ADAMI,

By

By

MOHAN, ALEWELT, PRILLAMAN & ADAMI

One North Old State Capitol Plaza

Suite 325

Springfield, IL 62701

Tele: 217/528-2517

Fax:

 217/528-2553

14

MOHAN,

ALEW~LT,

FRILLAMAN

& ADAMI

FRED

PRILLAMAN

PAUL

E. ADAM)

CHERYL

NEAL

PATRICE

SHAW

.JOEL

BENOIT*

CHRISTOPHER

OSWALD

ALSO ADMITTED

MISSOURI

L.AWYERS

SUITE 3S5

NORTH

OLD CAPITOL

PLAZA

SPRINGPI~LD,ILLINOIS

e2701-1323

www.mohanlaw.com

JAMES

MOHAN

EDWARD

.J. ALEWELT

OF

COUNSEL

TEL

12r7)

628-2517

FAX

12)71 528-2553

E-MAIL

mapa@famlly-net.net

December

2004

 Via Federal Express

Dorothy Gunn, Clerk

Illinois Pollution Control Board

100

West Randolph Street

State of Illinois Building,

 Suite 11-500

Chicago,

 IL 60601

Re:

 Illinois Ayers Oil Co.

v.

 IEPA,

 PCB 04-48

Dear Ms. Gunn:

We tried to file the enclosed Petition for Review of

Underground Storage Tank Fund Reimbursement Determination, but

after entering our credit card information,

 we received an error

message,

 a copy of which is attached.

 Therefore,

 enclosed

please find the original and nine copies of Petition. for Review,

along with our, check in the amount ‘of $75, which

 I would ask

that you kindly file.

Thank you

FCP/sew

Enclosure

cc:

 Renee Cipriano

 (w/encl.)

John Kim (w/encl.)

Very truly yours,

By:

C:\MAPA\CDAVXS\Illino±sAyers OiJ.\Ayers

III\Gunn

12

 01 04.wpd sew 12/1/04

MOHAN,

 ALEWELT,

PRILLANAN

.ADANI

WRITER’ S EMAIL:

 pril.arnan@rnohanlaw.

 corn

EXHIBIT

I-fl

Extension

‘

Page

1. of

nvalid

Serial

Number.

~ttos: //www.skiQjackic.com/scrints/EvolvCC.dll?Authorize

12/1/04

POLICY FOR IMPLEMENTATION

OFAN

ELECTRONIC FILING PILOT PROJECT IN ILLINOIS’

COURTS

Authority.

 The chiefjudges and clerks ofthe circuit court

may permit documents

to be filed

electronicallyon

a pilot basis only after approval by the Supreme Court through the Directorofthe

Administrative Office of the fllinois

Courts.

Electronic filing ofcourt documents is authorized to

begin in

a pilot county

or counties, designated by the

Court,

and

on the

recommendation of the

Administrative Director,when deemed appropriate by theAdministrative Director. Approval ofany

electronic filing pilot project does not relieve the clerk ofthe circuit court oftheir responsibility to

insure the securityand

 integrityofcourt documents.

1)

 Priorto implementationofa system, the clerk of

the circuitcourt shall seek approval

of electronic

filing

submitting

application

the

Administrative

Director

which shallbe signed by the circuitclerk and authorized by the signature ofthe chief

judge.

The application shall specifythecounty(ies), division(s), orclasses ofcases in which

the proposed electronic filing

system will be

used.

The

application should

also

identify the

 documents to be accepted.

The application shall include a description of the proposed hardware and software,

and how it integrates with the case management system.

The application shall describe howthe public willbe notified ofthepilot project for

electronic

filing.

The application should describe theprocessused to registerattorneys.and verify that

they

are in

 goodstanding with the court, which incorporates the use of

registrant’s

id’s and passwords.

The

application

should

describe

how

the

electronic

filing

system

authenticates

electronic

filing participants and transmissions, incorporating digital signatures.

The application shall include documentation ofa successful testing phase.

8)

 The application shall explain the overall procedure

for electronic filing including:

(a)

 Operational steps;

(b)

 Hours ofOperation;

‘

(c)

Document format(s) for all filed documents;

(d)

Medium used to

access

the

electronic

filing system,

i.e.

internet,

intranet,

dial-up

lines;

(e)

Procedures

and requirements within the filed documents, i.e.

specific filing

procedures,

 attachments topleadings;

(f~

 Procedure to follow in the event of

hardware or software failure;

(g)

 Verification of

date and time

 of filing ofdocuments;

(h)

Handling of special

exchanges,

i.e.

certificate of service,

signature

block,

sealed documents, confidential

documents.

The application should describehow fees are managed with regardto ele~trothcally

filed documents.

10)

 The application shall explainhowtheproposed

electronic

 :fihingsystem willmeetthe

following:

(a)

 Adequate interchange standards and compatibilitywith any statewide data

access;

(b)

 Integration of electronic withpaper aspects ofthe system;

(c)

Ease ofinstallation and maintenance;

(d)

Ease ofuse by the court, attorneys and

 parties;

(e)

Reliability;

(f)

Security;

(g)

Data integrity;

(h)

Reasonable controls;

(i)

Audit trails;

(j)

Long-term storage;

(k)

Cost-effective upgrade or replacement to

enable the migration of data

technology changes;

(1)

Economy ofoperation;

(m)

A means ofauthenticating the

source ofeach document;

(n)

A means ofauthenticating the

accuracyoftransmission ofeach document;

(o)

A means ofaccurately ascertaining the date and time offiling;

(p)

A means to provide the filing partywith verification ofthe date and

 timd of

filing;

(q)

Type ofelectronic signature, mannerand format inwhich signatureis affixed,

and a means to verify electronic signatures;

(r)

A means to produce paper copies of documents filed electronically;

(s)

Ameans to provide a secure back-up ofany data storage device that contains

documents that have been filed electronically; and

(t)

Ameansto makea microfilmreproduction ofdocuments:fi1ed:ei~ctrothcally.

11)

The application shall explain howthe proposedelectronic fi.ling systemwill meetthe~

following five requirements:

‘

‘(a)

Filing shall be limited

attorneys or parties who have registered with the

clerk ofthe circuit court in which the filing

is made;

(b)

 The formof filing shall not affect the right ofpublic access to court files;

-2-

(c)

 Printed copies of any fileddocument shall be made availableby the circuit

court

 clerk’s office at a

reasonable cost orotherwise as directed by statute or

rule;

(d)

The

clerk ofthe circuit court shall remain responsible formaking,

keeping,

and

preserving

complete

records

of all

circuit

court

proceedings

and

determinations

in accordance with the Court’s General Administrative Order

on Recordkeeping in the Circuit Courts; and

(e)

Filing fees

shallbe applicable as provided by law.

12)

The Administrative Directormayapprove, disapprove, orrequestmodificationofthe

circuit court clerk’s proposal, giving notice ofher/his action to

the chiefjudge and

clerk ofthe circuit court.

Scope of

Filing.

Electronic

filing

limited

electronic

line

transfers,

excluding

transfers

information by means ofa facsimile transmission device (fax), and has no effect on

any existing statute or Supreme Court rule governing facsimile transmissions.

The scope ofelectronic filing

in any pilot county is to be defmed in the application

ofthe clerk and is subject to the approval ofthe Administrative Director.

Upon the

grantofa request to theAdministrative Director seeking an exceptionafter a system

has been approved and implemented, a chiefjudgemay specifyadditional documents

which may not be filedby electronic means.

An electronic filing ofa verified pleading constitutes an attorney’s certification that

the original verified pleading is

in the

attorney’s possession.

The

attorney

shall

produce the verified pleading

forinspection at the request ofany party or the court.

4)

 The filing ofdocuments by electronic

means does not relieve the filing party

 of any

duty to serve copies requiredby

rule

 or statute.

A will or other testamentary document may not be filed by electronic means.

The filing ofdocuments by electronic means is limited to AR, CM,D, F, L, LM, MR,

MC, SC,

and TX case categories.

Protocol Requirements.

electronic filing protocol must include:

A means of authenticatingthe

 source ofeach document;

-3-

A means of authenticatingthe

accuracy of transmission of each document;

A means ofaccurately ascertaining the date and time offiling;

4)

 A specification ofdocumentsthatmay not be filed

electronically; and

means

produce

paper

copies

of documents

filed electronically,

including

signatures, ofsufficient quality to survive in readable form forthe period oftime that

the file to which it relates is required to be retainedpursuant

to the Court’s General

Administrative Order on Recordkeeping in the Circuit Courts.

Management of Electronically Filed Documents.

Documents

filed electronically shall

subject to the following requirements:

An office accepting a filing must be able to authenticate the source ofany electronic

line transfer received.

The clerkofthe circuitcourtmust indexany filing asrequiredby theCourt’s General

Administrative Order on Recordkeeping in the Circuit Courts;

The provisions ofthe Court’s GeneralAdministrative Orderon Recordkeepingwhich

‘

requirethat a microfilm copyofdocumentsbe produced shali-applyto-alidocuments

received in electronic form; and

All devices and software to be used for reproduction must comply with generally

accepted legal standards ofauthentication ofdocumentary evidence.

Oversight

Responsibilities.

Any office accepting electronic filings must:

Assure

that

nothing

contained

within

the medium

received would

threaten

the

integrityofdocumentsmaintained by thereceiving office:inmachine~’readableform;

Integratenew filings into an appropriate machine-readable database in a mannerthat

would permit

their retrieval

and

conversion

into

paper

form

required by

this

policy;

Provide

adequate

security to

limit access

persons making

filings

so that

they

cannot tamper with other filings orrecords of the office; and

Provide documentationand access to the electronic fihingsystemas mayberequested

by the Director ofthe Administrative Office ofthe

 Illinois Courts.

-4-

The

Administrative

Office

of the

illinois

Courts

shall

provide

oversight of electronic

filing

illinois’

courts and shall report to the

Court any non-compliance with this policy.

Supreme and Appellate Courts.

This policy doesnot authorize electronic filing in the Supreme

and Appellate Courts.

G) Effective Date.

January

1, 2003.

-5-

Article

E-Filing

5.01

Authority

(a)

By

the

issuance

Order

number

M.R.

18368,

the

Illinois

Supreme

Court

has

approved

the

18th

Judicial

Circuit

Court

the

site

for

the

initial

implementation of an

electronic filing

pilot

project. The Order,

dated October 22,

2003,

was

effective

immediately.

The

pilot

project was

scheduled

run

until

September 30, 2005, or later as extended

by Supreme Court Order.

(b)

Specific authority for electronic signatures, time of electronic

filing, and

electronic service has been granted by Supreme Court Order M.R.

18368.

5.02

Effective

Date

These

rules

shall

become effective

November

1st,

2004,

and

remain

in effect

until further order.

5.03

Designation of Electronic

Filing Case Types

(a)

This

Court

hereby

authorizes

(Law

over

$50,000)

cases,

(Arbitration)

cases,

and

any

cases

formally

transferred

into

AR,

permissible

electronic

filing case types.

From time to time,

with the approval

of the

Director of

the Administrative

Office

of the

Illinois Courts, the

Court may authorize,

by written

Administrative

Order,

additional

types

cases

processed

via

electronic

filing.

(b)

after

the

effective

date,

each

new

case

shall

become

e-file

case

when

Plaintiff

files

complaint

electronically,

Defendant files an answer electronically,

or when

all

of the

parties to

L or AR

case

stipulate

written

order to the

submission

of a

pending

case

for inclusion

in the e-filing

pilot program.

(c)

case’s

e-file

status

initiated

stipulation,

the

Clerk

shall

electronically

duplicate

the

physical

file

and

include

the

e-filing

database.

Thereafter the file shall

be processed

electronically pursuant to these rules.

(d)

All

post-judgment

collection

proceeding

documents

and

notices

shall

be filed

and served

the conventional

manner,

and

not by means of e-filing.

EXHIBIT:

October 28,

2004

‘~,

:•

‘

5.04

Definitions

The following

terms

in these rules are defined as follows:

(a) Conventional

manner of filing

—

the filing

paper documents with the

Clerk

is done

in cases that are

not e-file cases

(b)

Electronic

Document

(“e-document”)

electronic

file

containing

informational

text.

(c)

Electronic

Filing

(“e-file”)

electronic

transmission

information

between

the

Clerk

the

Circuit

court

and

vendor for

the

purposes

case

processing.

(d)

Electronic

Image

(“e-image”)

electronic

representation

document that has been transformed to a graphical

or image format.

(e)

Electronic

Service

(“e-service”)

electronic

transmission

documents

party,

attorney

representative

case

via

the

vendor.

However, e-service

not capable of conferring

jurisdiction

under circumstances

where personal service

is required

as a matter of law.

(f)

PDF

file

format

that

preserves

all

fonts,

formatting

colors

and

graphics of any source document regardless of the application

platform used.

(g) SubscrIber

—

one contracting with a Vendor to use the

e-filing system.

(h) Vendor

—

a company or organization that

has an

executed

Electronic

Information

Project Agreement

with

the

Clerk

of the

Circuit

Court

provide e-

filing services for the

8th

Judicial

Circuit.

5.05

Authorized

Users

(a) The Court and

the

Clerk

of the

Circuit Court

shall

provide

list

of staff

members

designated

operate

the

e-filing

system

within

the

scope

their

duties,

and

the

names

of any

other

individuals,

deemed

necessary

the

Court.

The Vendor or Vendors shall assign

confidential Personal

Identification

Number (PIN) to

the

Clerk, which

will

be used

the

listed

individuals

to access

the Vendors’

product

services.

user shall

knowingly

authorize

or permit

the Clerk’s FIN

used

anyone

other than

staff members

designated

the Court

or the

Clerk of the Court.

October 28, 2004

(b) Upon receipt by the

Vendor

of a

properly

executed

E-file

Subscriber

Agreement,

and

notification to the Clerk of the

Circuit Court

writing, the vendor

shall

 assign

the

 Subscriber

confidential

Personal

Identification

Number

(PIN).

 The Subscriber shall use

 this PIN

file,

serve,

receive,

review

and

retrieve electronically

filed

pleading,

orders and

other document shall

considered as

valid

and

effective

service

all

parties

and

shall

have

the

same

legal

effect

personal

service of an original

paper document.

(e)

electronic

service

party

does

not

occur

because

(1)

inaccessibility to the

Vendor’s

system;

(2) an

error

the

Vendor’s

transmission

notice

the

party

being

served,

(3)

the

Vendor’s

failure

process

the

electronic

filing

for

service,

(4)

the

party was

erroneously

excluded

from the

service

list,

the

party to

served

shall, absent extraordinary circumstances, be

October

28, 2004

entitled

order

extending

the

date

for

any

response

or the

period

within

which any

right, duty or other

act must be

performed.

(f) The

e-filing

Vendor

is required

to maintain

e-service

list for each e-

filed

case. The Vendor shall

immediately update the service list upon

being given

notice of new contact

information. Whenever

a document

submitted

for service

upon

other parties by the

e-filing

Vendor’s

system,

the

e-filing

Vendor shall

use

the most current e-service list to perform service.

(g)

All

Subscribers

and

other participants

must immediately,

but not later

than

ten

business

days

prior

 to when such a change takes

 effect, notify other

parties,

the

Clerk and

the

e-filing

Vendor

 of any change of firm name, delivery

address, fax number or e-mail address.

(h)

Courtesy copies of documents

customarily

required

provided

the

court

shall

continue

required

e-file

cases,

absent

specific

court

order to the

contrary.

5.13

Collection

of Fees

(a) The e-filing

of a document requiring payment of a

statutory

filing fee to

the

Clerk

the

Court

order

achieve

valid

filing

status

shall

filed

electronically in the same manner as

any other e-file document.

(b)

the

end

each

business

day,

the

Vendor

shall

electronically

transmit

the

Clerk’s

bank

account,

all

statutory

filing

fees

required

for

that

day’s

electronic

filings.

The

Vendor

shall

electronically

provide

the

Clerk’s

Accounting

Department

detailed

breakdown

including,

case

number,

type

transaction, and party being

billed for the payment for each deposit.

The Vendor

shall act as a

limited agent for the

Clerk and

collect such

required filing fees from

the Subscriber through direct

billing of that Subscriber, unless

the payment of the

fee has been waived

by court order or law.

e-fihing Subscribers

the Vendor for Vendor services

are

solely the

property

of the

Vendor and

are

addition to

any

statutory

fees

associated with

statutory filing fees.

5.14

System

or User Errors

(a)

The

Court

and

Clerk

the

Circuit

Court

shall

not

liable

for

malfunction

errors

occurring

electronic

transmission

receipt

electronically filed or served documents.

October

28, 2004

(b)

If the electronic filing

is

not

filed with the Clerk because

of (1) an

error

in the transmission of the document to the Vendor which was unknown to the

sending party,

or (2) a

failure to process the electronic filing

when

received

by the

Vendor,

(3)

rejection

by the

Circuit Court

Clerk,

(4)

other technical

problems

experienced

the

filer,

(5)

the

party

was

erroneously

excluded

from

the

service

list,

the

Court

may upon

satisfactory

proof enter an

order

permitting

the

document

subsequently

filed

effective

the

date

filing

was

first

attempted.

(c)

the

case

filing

error,

absent

extraordinary

circumstances,

anyone

prejudiced

by the

court’s order to accept a

subsequent filing

effective as

of the date

filing

was

first attempted,

shall

entitled

order extending the

date for any response,

or the

period within which

any

right, duty or other act must

performed.

5.15

Vendor Conditions

(a)

E-Filing

Vendor(s)

with

Electronic

Information

Project

Agreements

executed with the

Clerk of the

Circuit Court, are hereby appointed to be the agent

of the

Clerk

of the

Circuit Court regarding

electronic filing,

receipt, service,

and/or

retrieval of any pleading or document via

the e-filing Vendor system.’

(b)

The

e-filing

Vendor

shall

make

electronically

filed

documents,

and

documents

being

served

electronically

through

the

e-filing

Vendor’s

system,

available to subscribers and the designated court authorized

users through the e-

filing Vendor’s

system

in accordance with the current contract

between the

Clerk

and

the

e-filing

Vendor,

and

consistent

with

the

Supreme

Court’s’

Electronic

Access Policy for

Circuit Court Records of the

Illinois Courts.

(c)

The

e-filing

Vendor

may

require

payment

fee

impose

other

reasonable

requirements

contract

with

Subscriber

conditions

for

processing electronic filings.

Pursuant to contract terms, the

e-filing Vendor must

provide services,

but

is not permitted to

require payment of

a fee for government

users or parties deemed indigent by the Court.

(d) The Chief Judge of the

Court or his/her designee,

in coordination

with

the

Clerk

the

Court,

shall

review

and

approve

the

terms

of the

Subscriber

Agreement.

The

Vendor

shall

provide

least

30-days

notice

prior

the

effective date of any Subscriber Agreement changes.

(e)

Certified

copies of electronically

filed documents may not be obtained

electronically.

The

Clerk

the

Court

will

only

issue

Certified

copies

the

conventional

manner.

October 28,

2004

party

should

contact

the

Clerk’s

Office

with

the

case

number and document number for which the correction

being

requested.

appropriate,

the

Court

will

make

entry indicating that the document was

filed

in error. The

filing

party

will

be advised

/f the

document

needs

refiled.

TECHNICAL FAILURES.

The Clerk’s Office shall deem the Central District of Illinois

CM/ECF site to be subject to a technical failure on a given

day

if the

site

unable to accept

filings continuously or

intermittently over the course of any period of time greater

than one

hour after

10:00 a.m.

that day.

Known systems

outages

will be posted on the Court’s web site,

if possible.

Parties

are

encouraged

file

documents

electronically during normal business hours,

in case

problem

is encountered.

In the event a technical

failure occurs,

and despite

the best efforts ofthe filing

party a document cannot

filed

electronically,

the

party

should

(if

possible) a

copy of the error message

received.

ExHIBIT:

addition, as soon as possible, the party should file a

Declaration that Party was Unable to File in a Timely

Manner Due to Technical Difficulties.

The Court will

then

order appropriate relief.

Sample language for

declaration

attached

these ‘procedures

Form 0.

Problems on the filer’s end, such as phone line problems,

problems with the filer’s Internet Service Provider (ISP) or

hardware

or software

problems,

will

neither constitute

technical

failure

under

the

procedures

nor

excuse

untimely filing.

party

misses

filing

deadline

due

such

problems,

the

document

may

conventionally

submitted, accompanied by a Declaration stating the

reason

for

missing

the

deadline

and

motion

for

leave to file instanter.

The motion, document and declaration must be filed

no later than

12:00 noon of the first day on which the

Court is open for business following the original filing

deadline.

The Court will consider the matters stated

23

in the

declaration and order appropriate

relief.

PRIVACY.

address

the

privacy

concerns

created

Internet

access

court

documents,

litigants

shall

modify

partially redact certain personal data identifiers appearing

in case initiating documents,

pleadings, affidavits, or other

papers. These identifiers and the suggested modifications

are as follows:

Minors’

names:

Use the

minors’

initials;

Financial, account

numbers:

Identify

the

name

type

of account and

the financial

institution where

maintained, but use only the last four numbers ofthe

account number;

Social

Security

numbers:

Use

only

the

last

four

numbers;

Dates of birth:

Use only the year;

Addresses:

Use only City and State;

Signatures:

Use s/name;

Driver’s

License

numbers:

Use

only

last

four

numbers; and

Other data as permitted

by order of the court.

party wishing to file a document containing the personal

data

identifiers

listed

above

shall

submit for filing

under

seal

unredacted

document

reference

list.

The

reference

list

shall

contain

the

complete

personal

data

identifier(s) and the redacted identifier(s) used

its(their)

24

FORM

IN THE UNITED STATES DISTRICT COURT

FOR THE

CENTRAL DISTRICT OF ILLINOIS

____________,

)

Plaintiff(s),

)

vs.

)

 CaseNo.

)

____________,

)

Defendant(s)

)

Declaration that Party was

Unable to File in

a Timely Manner

Due to Technical Difficulties

Please

take

 notice

that

Plaintiff/Defendant,

Name ofParty

was unable to

file the attached Title

Document

 in a timely manner due to technical difficulties. The deadline for filing the

 Title

of

Document

 was Filing Deadline Date.

 The reason(s)that Iwas unable to file the Title ofDocument

in a timely maimer

and the good faith efforts I made prior

 to the filing deadline to both file in a timely

manner

and

 to inform the

Court, and,

 the.otherparties that.I could not do so are set

forth below.

Statement

 ofreasons

and

 good faith efforts to file and to inform (including

dates

and times)

I declare under penalty of

perjury

 that the foregoing is

true and

correct.

Name

ofFiling Attorney

Name ofFiling Attorney

Law FirmName

Address

City, State,

ZIP Code

Phone: (xxx)

xxx-xxxx

Fax:

(xxx)

xxx-xxxx

E-mail: xxx@xxx.xxx

UNITED STATES

DISTRICT

COURT

NORTHERN DISTRICT OF ILLINOIS

GENERAL ORDER ON ELECTRONIC CASE FILING

Meeting in executive session on November 16, 2004, the Court

approved the following

procedures for Electronic

Case Filing (ECF).

I. Preamble

(A)

Whereas:

(1) this court is expected to implement the Case Management/Electronic Case

Filing System in

2005,

(2) Federal Rules of Civil Procedure Rules

77, and 79, and Federal Rules of

Criminal Procedure Rules 49

and

55,

now permit the creation, retention, and storage of

court records and service ofnotice and court orders by electronic means, and

(3) This court intends to provide for the creation, retention, and storage ofcourt

records and service ofnotice and court orders by electronic means,

(B) The court hereby enters this

general order which may be referred to as the “General

Order on Electronic Case Filing.”

available, through the

Court Web Site.

Any additional

procedures established: by the Clerk ofthe Court pursuant to

this General Order should also be

available through the Court Web Site.

II.

Definitions

(A) “Electronic Case Filing System” or “ECF”

is the

court’s electronic system for

receiving, recording, docketing, filing, and retrieving pleadings and other court documents in

electronic form and which also is capable ofgenerating,

recording, retrieving, and transmitting

court orders and notices in electronic form.

(B) “Filing User” is

a person registered to use ECF in the Northern District ofIllinois

and

who has been issued a login and password.

is the notice generated.by ECF upon the completion of

an electronic filing.

(D)

“Court Web

Site”

is the official Internet web

site ofthe United States

District Court

for the Northern District of Illinois, the present address ofwhich is http://www.ilnd.uscourts.gov.

(E)

A document is in “Compatible Format” if it is in Portable Document Format (“PDF”)

created by Adobe Acrobat or another similar and compatible program, or in such other format as

the Clerk ofthe

Court may designate and post

on the Court Web Site.

(F)

“Paper,” when used in this General Order to describe forms, documents, etc.,

means a

tangible, hard copy version in contrast to electronic versions.

III. Scope ofElectronic

Filing

(A)

(1) All civil, criminal, and admiralty cases are assigned to ECF except those

categories ofcases specifically excepted below.

(2) The following categories ofcases do not qualit~r

to be assigned to

ECF:

(a) petty offenses;

(b)

grand jury matters;

(d) qui tam actions, until a point in the proceedings that the court may

order that it be assigned to ECF;

(e) sealed cases, until

a point in the proceedings that the court may order

that itbe assigned to ECF;

and

(f) any other specific case where the court expressly orders that it not be

assigned to ECF, until

a point in the proceedings that the

court may order

otherwise.

(B)

(1) Except as expressly provided and in exceptional circumstances preventing a

Filing User from filing electronically, all petitions, motions, memoranda oflaw, or other

pleadings and documents required to be filed with the court in connection with

a case

assigned to ECF may be electronically filed.

(2) The following categories ofdocuments are not to be filed electronically:

(a) the initial

documents and

all associated documents that begin a case,

including, but not limited

to, the original complaint

in a civil case; the original

indictment, complaint, or information in a criminal case; removal petitions in a

case removed from state court; or the petition in cases initiated by

a petition;..

(b) charging documents in

a criminal case, including

superseding

indictments, superseding informations, and superseding complaints;

in criminal cases;

(d) all documents that require the signature ofa criminal

defendant;

(e) pretrial

services reports and presentence reports;

(f)

 administrative records;

(g) state court records in a habeas corpus case;

(h) banlaiiptcy appeal records;

(i) restricted, sealed, or

in camera

documents;

(j) exparte

motions;

(k) verdict forms signed by one or more members of thejury;

(1) bonds;

(m)

letters ofrequest;

(n) certain documents or components in accordance with

Vll(C);

(o) notices ofappeal;

(p) other designated documents in accordance with procedures established

by the Clerk ofthe

Court;

and

(q) documents that the court expressly orders

or permits

to be filed in

paper form.

(3) As to those documents listed in

III(B)(2)

and any other documents filed in

paper form,

the Clerk ofthe Court may establish procedures for creating and storing

electronic versions ofsuch documents.

Those procedures (a) may contain provisions for

creating redacted versions ofdocuments and (b) shall not provide for the

maintenance of

electronic versions ofpretrial services

reports, presentence

reports, restricted documents,

sealed

documents,

in camera

documents, or

exparte

motions unless the Clerk of the

Court specifically determines that thethen-current version of ECF contains adequate

protections for securingand restricting access to such documents.

(4) The filing ofthe initial documents and all associated documents that begin a

case, including,

but not limited

to, the complaint, attorney appearance

forms, designation

sheet, and the issuance and service ofthe summons

a civil case and the charging

documents in

a criminal case, will be accomplished in paper form rather than

electronically.

The Clerk ofthe Court may establish procedures for providing electronic

copies ofinitial documents.

All subsequent pleadings and other documents in

a case

assigned to ECF must be filed electronically except as provided in this General Order or

as otherwise ordered by the court.

required to electronically file pleadings and other documents in

a case assigned to ECF.

This

provision is intended

allow for a reasonable period oftransition to the ECF system. It

expected that the Court will

require

electronic filing by attorneys at some point in the future,

subject to exceptions allowed for by this

order.

(D)

Prior to filing an emergency motion or matter, as defined in Local Rule 77.2, a Filing

User shall contact thejudge’s courtroom deputyor chambers by telephone or in person.

Chambers information, including standing orders, is posted on the Court Website.

IV.

Eligibility, Registration, and Passwords

(A)

(1) Attorneys admitted to the bar ofthis court, including those admittedpro

hac

vice,

may register as Filing Users.

(2) Registration shall be in accordance with procedures established by the

Clerk of

the Court and shall require that the

applicant provide his

orher name, address, telephone

number., Internet e-mail

address, and a declaration that the applicant is admitted to the bar

of this court or admittedpro

hac

vice.

Registration also requires that

the applicant have

or obtain an account

on the Public Access to Court Electronic Records (“PACER”)

system.

(B)

(1) A party

 to a pending

civil action who

is not represented by an attorney may

(2) Registration shall be in accordance with procedures established by the Clerk of

the Court and shall require that the applicant identify the action as well as the name,

address, telephone number, and Internet e-mail address ofthe applicant.

Registration also

requires that the applicant have or obtain

an account on the Public Access to Court

Electronic Records (“PACER”) system,

(3) Parties who are in custody are not permitted to register as Filing Users.

If,

during the

course of the action, a party who is registered

as a Filing User is placed in

custody, the Filing User shall promptly

advise the Clerk ofthe Court to terminate the

Filing User’s registration as a Filing User.

(4) If, during the course ofthe action, the partyretains an attorney who appears

the party’s behalf, the attorney must advise the Clerk ofthe Court to terminate the party’s

registration as a Filing User upon the attorney’s

appearance.

documents as provided in this General Order and

in accordance with the Federal Rules of Civil

Procedure and Federal Rules ofCriminal Procedure.

The Clerk ofthe Court shall use’an

electronic andlor paperregistration form that contains an express consent to service by electronic

‘means in accordance with Fed. R. Civ. P.

5(b)(2)(D) and Fed.

R. Crim. P. 49(b).

(D) The Clerk of the Court may establish registration procedures that require a Filing

User applicant complete on-line and/or in-person ECF training prior to being provided full access

a Filing User.

(E) Once registration and/or training is completed in accordance with procedures

established by the

Clerk ofthe Court, the Clerk ofthe Court shall provide the Filing User with

notification ofthe Filing User’s login and password.

(F) Filing Users agree to protect the security oftheir passwords.

(1) A Filing User shall immediately notify the Clerk ofthe Court if he orshe

learns that the Filing User’s password has been compromised.

(2) Use ofthe login

and password

is limited

to the Filing User and agents

specifically authorized by the Filing User.

The Filing User shall be responsible for all

applicable charges

associated with use ofthe Filing User’s password, and any documents

filed by use ofthe password shall be deemed authorized and signed by the Filing User.

(3) Ifthe Clerk ofthe Court believes that

a Filing User’s password has been

compromised, the Clerk ofthe Court shall notify the Filing User.

In such instances, the

Clerk of the Court may make necessary corrections to ECF and shall issue a new

password to the Filing User.

(4) Filing Users may be subject to sanctions for failure to comply with the

provisions

ofthis General Order or any ECF procedures established by the Clerk ofthe

Court.

(G) Registered Filing Users may withdraw from participation in ECF by providing the

Clerk ofthe Court with written notice ofthe withdrawal.

Withdrawal is not effective until the

Clerk ofthe Court issues a notice ofwithdrawal and the withdrawn Filing User shall promptly

notify the other litigants in the Filing User’s pending cases.

(H) It is the responsibility ofthe Filing User to maintain

adequate facilities and

equipment to participate in ECF, including maintaining

a current and active e-mail address.

The

Filing User shall promptly notify the

Clerk ofthe

Court and opposing litigants

in pending cases

ofany changes in the Filing User’s e-mail

address.

A Filing User’who lacks the necessary

facilities, equipment, or active e-mail address, other than for a temporary period of limited

duration, shall promptly seek withdrawal from ECF in accordance with

1V(G).

(I) A Filing User may, for cause, be terminated from usitig ECF.

The Clerk ofthe Court

shall establish rules and procedures for such termination, which shall providefor review by

petition

to the Executive Committee ofthe court or a designated district judge or magistrate

judge.

(5)

(1) A Filing User who

is transferred to inactive status in accordance with LR

83.18 or suspended or disbarred pursuant

to the court’s disciplinaryprocedures, LR

.25-.3

shall have his or her registration as a Filing User automatically terminated.

(2) Following reinstatement under LR 83.18 or LR 83.30, a previously registered

Filing User must request reinstatement ofhis or her registration as a Filing User.

Such

requestmust include then-current information as to the Filing User’s name, address,

telephone number, and Internet e-mail address and any other information that may be

required under procedures established by the Clerk ofthe Court.

V. Consequences ofElectronic Filing

(A) Electronic transmission ofa document to ECF consistent with these rules,

together

with the transmission of a Notice ofElectronic Filing from the

court, constitutes filing ofthe

document for all purposes ofthe Federal Rules ofCivil Procedure, the Federal Rules ofCriminal

Procedure, and the local rules ofthis court, and constitutes entry ofthe document on the docket

kept by the Clerk ofthe Court under Fed. R.

Civ.

P. 58 and 79 and Fed. R.

Crim. P. 49 and

55.

(B)

(1) When a document has been

filed electronically or created by the court

electronically, the official record

is the electronic recording ofthe document as stored by

the court,

(2) Except that redacted stored electronic versions ofpaper documents filed with

the

court shall not constitute, the official record ofthe court and the paper document shall

be maintained as the official record ofthe court.

The clerk of court may, where

necessary and appropriate, modify the docket to comply with quality control standards.

(D) Except in the case ofdocuments first filed in paper form and subsequently submitted

electronically under

IU(B)(4), a document filed electronically is deemed filed at the

date and

time stated on

the Notice ofElectronic Filing from the court.

(E) Filing a document electronically does not alter the filing deadline for that document.

Filing must be completed before midnight Central Time in the Northern District ofillinois in

order to be considered timely filed that day.

To the extent local rule or an order ofthe court

requires filing with the court or service on an opposing party by

a specific time of day, the

document must be

filed or served by that time ofday

 to be timely.

VI. Entry ofCourt Orders

(A)

(1) All orders, decrees,judgments, and proceedings ofthe court will be filed in

accordance with this

General Order which will constitute entry on the docket kept by the

Clerk ofthe Court under Fed. R. Civ. P. 58 and 79 and Fed. R. Crim. P. 49 and

55.

All

signed orders will be filed electronically by the court or court personnel.

Any order filed

electronically by the court

or court personnel without the original signature ofajudge (or,

where

applicable, the Clerk ofthe Court) has the same force and effect as if thejudge or

Clerk ofthe Court had affixed the judge’s or Clerk ofthe Court’s signature to a paper copy

of the order and it had been entered on the docket in the manner otherwise provided.

(2) The Clerk ofthe Court may establish additional procedures

for filing,

creating, and storing electronic versions oforders, decrees, and judgments.

(B) A Filing User submitting a document electronically that requires a judge’s signature

must promptly deliver the document in such form as the court requires.

VII.

Documents,

Attachments,

and Exhibits

(A)

Filing Users

must file all documents in electronic form, except where this General

Order or the

court permits otherwise.

All electronic documents must be submitted in Compatible

Format.

Each document filed electronically must be titled using

one ofthe categories contained

inECF.

(B) Documents filed electronically must not exceed 2 megabytes in size.

Documents to

be.sçanned into PDF format must not exceed 40 pages.

Any document that exceeds these limits

must be broken into multiple PDF files and filed as a document and attachments.

way of

example, most filings include a foundation document

(e.g.,

motion) and other supporting

attachments (e.g., memorandum and exhibits).

The foundation document as well as the

supporting attachments will each be deemed a separate component ofthe filing, and each

component shall be uploaded separately in the filing process.

Users

may be excused from filing a particular component electronically under

certain limited circumstances, such as when thecomponent cannotbe reduced to an electronic

format or exceeds the file size

limit described above.

Such component shall

not be filed

electronically, but instead shall be filed with the Clerk ofthe Court and served upon the parties in

accordance with the applicable Federal Rules ofCivil Procedure orFederal Rules ofCriminal

Procedure and the local rules for filing

and service of paper documents.

Filing Users filing

paper component shall flie electronically

a Notice ofPap~r

Filing setting forth the reason(s) why

the component cannot be filed electronically.

(D) A Filing User, unless otherwise instructed by the court, may submit as

exhibits or

attachments only those excerpts ofthereferenced documents that

are directly germane

to the

matter under consideration by the court.

Excerptedmaterial must be clearly and prominently

identified as such.

Filing Users who file excerpts ofdocuments as exhibits or attachments under

this rule do so without prejudice to their right to timely file additional excerpts orthe complete

document.

Responding parties may timely file additional excerpts or the complete document that

they believe are directly germane.

(E)

(1) Nothing in section VII ofthis General Order shall override the local rules

regarding size limitations on specific types of documents.

The pages ofelectronic

documents should substantially comply with the size limitations contained in LR

5.2.

Absent leave of court, thepage

limitations set forth in LR 7.1

apply to briefs filed in

electronic form.

(2) Nothing in section VII ofthis General Order shall prevent the court from

ordering that other rules will apply in a particular case.

VIII.

Restricted or Sealed Documents

(A)

Restricted or sealed documents must be filed in paper form in accordance with LR

5.8

and 26.2.

(B)

(1) A motion for a protective order or to file restricted or sealed documents may

be filed electronically unless prohibited by law.

(2) If such a motion itself contains all orpart

 ofthe proposed

restricted or sealed

materials, a Filing Usermayfile such a motion

in paper form.

IX.

Retention Requirements for Documents with Signatures ofPersons Other Than Filing

Users

(A) Documents that are electronically filed and require original signatures otherthan that

ofthe Filing User must be maintained in paper form by the Filing Useruntil

4 years after all time

periods for appeals expire.

(B) On request ofthe court, the Filing User must provide original documents for review.

Signatures ofFiling Users

(A) The user login and password required to transmit documents to ECF serve as the

Filing User’s signature on

all electronic documents filed with the court. They also serve as a

signature for purposes ofFed.

Civ. P.

11, the Federal Rules ofCivil Procedure, the Federal

Rules ofCriminal Procedure,

the local rules of this court, and any other purpose for which a

signature is required in connection with proceedings before the court.

Each document filed

electronically must, if possible,’ indicate that it has been electronically filed.

Electronically filed

documents must include

a signature block

and must set forth the name, address, telephone

number and the attorney’s

bar registration number, if applicable. In addition, the name ofthe

Filing User under whose login and password the document is submitted must be preceded by an

‘si”

and typed in the space where the signature would otherwise appear.

(B) No Filing User or otherperson may knowingly permit or cause to permit

a Filing

User’s password to be used by anyone otherthan an authorized agent ofthe Filing User.

Electronic filing may be delegated to an authorized agent, who may use the login and password

to transmit

a filing.

However, use ofthe login and password to transmit the filing constitutes a

signature by the Filing User, even when the Filing User does not perform the physical act of

filing.

must be

electronically filed either by: (1) transmitting a scanned document containing all

necessary signatures; (2.) representing the consent ofthe other parties on the document;

(3) identifying on the document the parties whose signatures are required and by the submission

ofa notice ofendorsement

by the other parties no later than three court days after filing; or (4) in

any othermanner approved by the court.

XI.

Service ofDocuments by Electronic Means

(A) All Filing Users shall maintain

a, current and active e-mail address to receive Notices

ofElectronic Filing through ECF.

(B)

When a pleading or other document is

filed electronically in a case

assigned to ECF,

ECF will automatically generate a Notice ofElectronic Filing, which will automatically be.

transmitted by e-mail to all Filing Users in the case.

(C)

 Subject to the provisions ofFed. R. Civ. P.

5(b)(3),

the Notice ofElectronic Filing

constitutes service under Fed.

R. Civ. P. 5(b)(2)(D)

and Fed. R.

Crim. P. 49(b) as to all Filing

Users in

a case assigned to ECF.

(D)

Parties to a case assigned to ECF, who

are not Filing Users or represented by a Filing

User and who

have not otherwise consented to service by electronic means under Fed.

Civ.

5(b)(2)(D),

are entitled

to’ receive a paper copy ofany electronically filed document.

Service of