BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
PCB No.
03-54
PCB No.
03-56
PCB No. 03-105
PCB No.
03-179
PCB No.
04-02
(LUST
FundfJST
Appeal)
(Consolidated)
FREEDOM OIL COMPANY,
)
)
Petitioner,
)
)
v.
)
)
ILLiNOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
Dorothy M. Gunn, Clerk
flhinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, IL 60601
Carol Webb, Hearing Officer
flhinois Pollution Control Board
1021 North Grand Avenue, East
P.O .Box
19274
Springfield, IL
62794-9274
NOTICE
Diana M. Jagiella
Howard & Howard
One Technology Plaza
Suite 600
211
Fulton Street
Peoria, IL 6
1602-1350
~,E
C
V E ~D
CLERK’SDFF;CE
APR ~7 2~5
STATE
OF ~LL~NO~S
PoHution Contro’ Board
PLEASE
TAKE
NOTICE
that I
have
today
filed with the
office, of the
Clerk of the Pollution
Control Board a RESPONSE TO MOTION FOR DEFAULT JUDGMENT,
copies of which are herewith
served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, flhinois 62794-9276
217/782-5544
217/782-9143
(TDD)
Dated: April
6, 2005
BEFORE THE POLLUTION CONTROL BOARD
—~RKSO~F1r~
OF THE
STATE OF ILLINOIS
AP
O72O~5
FREEDOM OIL
COMPANY,
)
DCD
‘KT
~
STA E OF ~LLNO~3
i
~i~’
i’~O.
-~-~
PoHution
Cor~tro~
BOsrci
Petitioner,
)
PCB No.
03-56
)
PCBNo.03-105
v.
)
PCBNo. 03-179
)
PCB No. 04-02
ILLINOIS ENVIRONMENTAL
)
(LUST Fund!UST Appeal)
PROTECTION AGENCY,
)
(Consolidated)
)
Respondent.
)
RESPONSE
TO MOTION FOR DEFAULT JUDGMENT OR IN THE
ALTERNATIVE
TO PROHIBIT INTRODUCTION OF
EVIDENCE
NOW COMES
the Respondent, the Illinois
Environmental
Protection Agency
(“Illinois
EPA”), by one of its
attorneys,
John J. Kim,
Assistant
Counsel and
Special
Assistant Attorney
General, and, pursuant to the illinois Pollution ControlBoard (“Board”) Rules at 35111. Adm. Code
101.500, hereby responds to
the Motion for Default Judgment or In The Alternative to
Prohibit
Introduction of Evidence (“motion for default
judgment” or “motion”) filed by the Petitioner,
Freedom Oil
Company (“Freedom Oil”).
The Illinois EPA requests that the Board enter an order
denying thePetitioner’s motion in its entirety, including the alternative reliefsought.
Inresponseto
the motion, the Illinois EPA herebyresponds as follows.
,
I.
PETITIONER HAS MISREPRESENTED THE
FACTS
In its motion,
the Petitioner cites to
certain facts it alleges to be
supportive of a
defaUlt
judgment or, in the alternative, to prohibiting the introduction ofevidence by the illinois EPA at
hearing.
Among those facts arethe alleged lackofattention to theseconsolidated appeals, the failure
of a settlement offer to be made to the Petitioner, the failure ofthe Illinois EPA to
comply with
1
Hearing Officer orders
regarding certain
filing
deadlines,
and
the failure
to
follow
through on
“personal commitments” made by the undersigned counsel to the Hearing Officer.
However, those representations are not what they are madeout to be.
First, the undersigned
counsel forthe Illinois EPA notes by way ofbackground that ofthe approximately
85
appeals now
pendingbefore the Board involving the Illinois EPA’s administration ofthe Leaking Underground
Storage Tank (“LUST”) program, the undersigned counsel is the attorney assigned to
83 ofthose
matters.1
This
case load does
not
include
other pending matters
before the
Board or internal
assignments,nordoes itinclude involvement on an as-neededbasis in discussions related to pending
90-day
extensions
of LUST
program decisions
(all of which
are assigned
to the
undersigned
counsel).
This information is not presented to justify delays in these or any pending matters, but
rather is notedto providethe basis for theundersigned counsel’s explanation thathis “normal”work
load simplydoes not afford the time otherwise desired tospendon each ofhis assigned cases.
As to the notionthat there has been a lackofattention to these cases, that simply is not true.
As the Petitionermust acknowledge, therehave beenrepeated telephone discussions and electronic
mail correspondences discussing these appeals. Inthis situation, asin any matterinvolving an appeal
before the Board of a LUST program matter, the undersigned counsel is
subject to the time and
attention that the illinois
EPA’s technical staff can
spare,
.
as that
staff effectively, represents.the
“client” in these types ofappeals.
Thependency ofthe these appeals, and specifically over the past
calendar year,has coincidedwith the LUST program’s mvolvement withthe latest LUST regulatory
proposal; this proposal hastaken a great deal oftime away from the LUST program staff’s normal
work duties, and all decisions requiring their involvement have been delayed.
‘These figures were calculated following a review ofsearchresults from the Board’s
COOL database; the actualfigures
2
However,
that
factor aside, the Illinois
EPA has attempted
to
convey its position to
the
Petitioner when possible,
and
at no
times
has
the Illinois
EPA refused
to
discuss or consider
reviewing information submitted by the Petitioner. Although the answershave not necessarily been
to the Petitioner’s liking, it is
wrong to conclude that the illinois EPA has refused to engage in a
good faith discussion with the Petitioner.
.
,
.
.
Theseongoing discussions havebeen conveyedto the HearingOfficerin this matter, with the
representation that
undersigned counsel is
not
able
to
make final decisions or settlement
offers
without approval ofthe LUST program staff.
Admittedly, the Illinois EPAhas not met all deadlines imposed by the Board orthe Hearing
Officerin these appeals. As has beenstatedby undersigned counsel,that delayhasnot beenwithout
regret and a good faith effort to abide by future deadlines.
Unfortunately, the circumstances oflate
(unusual in the sensethat counselhas had certain family obligations ofa non-recurring nature, i.e.,
the birth of’counsel’s
second
and ~
child) have indeed prevented
filings in a timely fashion.
Though these delays havebeen acknowledged, the Illinois EPA at no time has stated any disdain or
refusalto comply withthe Board’sor Hearing Officer’s orders. Ifanything, counsel waspossibly too
optimistic in estimating times for responses, etc., borne purely out ofa desire to keep these matters
moving in a forward manner.
..
.
,
,
.
Thatsaid, therehasbeenpositive movementby the parties in theseappeals. Theparties have
agreed that the issue remaimngon appeal in most ofthe consolidated appealsrelates to thequestion
of whether the
Illinois
EPA’s
apportionment of costs
was
appropriate,
given the
Petitioner’s
argument
that
the
ineligible
tanks
included
in
the
apportionment
calculations
should
not
be
may
be
slightly higher or lower.
3
consideredat all.
In eachofthe appeals referencedabove involving a reimbursementdecision,there
were
multiple
deductions;
the
parties
have
agreed
the
focus
should
be
on
the
question
of
apportionment ofcosts.
Also, the Petitioner is incorrectin stating that there have been no settlement offers made by
the Illinois EPA.
On February 24, 2005, the illinois EPA made a settlement offer to the Petitioner,
proposing (following discussionsbetween counsel fortheparties) to resolvesomeofthe costs under
appeal.
While the illinois EPAwill not here divulge thespecific natureofthesettlement (having not
first received consent from Freedom Oil to
do so), it is fair to note that the settlement involved a
five-figure amount that was ultimatelyslightly higherthan what-was-originallynegotiated between
the parties. ThePetitioner has since acceptedand acted on this prorpos’al) and therefore itis wrongto
represent that no settlement offer orprogress has beenmade.
Lastly,
the
Illinois
EPA notes
that
the
Hearing
Officer
recently granted
a
motion
for
continuance designedto facilitate the filing ofthe’administrative records in theseappeals as well as
discovery responses.
The Illinois EPA specifically noted that one of the reasons for making the
request
for
a
continuance
was to
allow the
Petitioner
sufficient
time
to
review all
necessary
documents.
This rationale wasintended to prevent any undue prejudiceupon-the Petitioner,and was
made in good faith.
,
.
.
.
Therefore, while the Illinois EPA concedes that
certain deadlines have not been met in
a
,
-‘
timely manner, the undersigned counsel represents that efforts to resolve orultimatelylit-igate-these
appeals have been ongoing and done in good faith, and that any delay, while regrettable, certainly
does not rise (orsink, depending on one’s viewpoint) to the level such that default judgment. orother
evidentiary sanctions are warranted.
.
4
II.
THERE IS NO LEGAL AUTHORITY IN FAVOR OF PETITIONER’S REQUEST
To furtherjustifyits request for a default judgment or a restriction upon the illinois EPA in
presenting evidence at hearing, the Petitioner cites to
several cases it argues are supportive ofits
position.
A review ofthose cases indicates just the opposite,’ and as such the Board should not rely
upon the legal authority cited by the Petitioner.
.
.
.
,
Inthe case ofIllinois EPAv. Celotex Corporation, 168 Ill. App. 3d
592,522
N.E.2d 888
(3rd
Dist.
1988),the courtruledthat the Board was correct in dismissing a count included in a complaint
brought by the Illinois EPA against Celotex Corporation.
The court first noted that dismissal ofa
party’s claim is a drastic sanctionthat should be employed sparingly.
However, when a scheme of
deliberate defianceofthe rules ofdiscovery and the court’s authority oran attempt to stall significant
discovery has been
shown,
such
sanction is
appropriate and
should
be
unhesitatingly
applied.
Celotex,
168 Ill. App. 3d at 597, 522 N.E.2d at 891-892.
The court went on to find that the Board
properly found that the Illinois EPA had engaged in a pattern ofdilatory response to hearing officer
orders, unjustifiable cancellation ofdepositions, and engaged in an intentional pattern ofrefusalto
meet deadlines; further,the explanationstendered forthe activities were not reasonable.
~.,
168111.
App. 3d at
597-598,
522 N.E.2d at 892.
TheIllinois EPA’s handling ofthepresentmatters, while not pristine, hardly is analogous to
the conduct beforethe Celotex court.
There, theIllinois EPA cancelled a deposition; here,no such
cancellation hastakenplace.
There, theIllinois EPArefused to make documents available afterfirst
promising access; here, no
such refusal has taken place.2
Other aggravating facts cited to in the
‘
2The onlyarguably similaroccurrence here
is the delay
in
filing
the administrative
records
The illinoisEPA
on
this date
is
sending to the Petitioner the consolidated
administrative record for two
ofthe
pending
appeals, and the remaining
administrative records
will be sent shortly hereafter.
This delay is nottantamount to a refusal of documents.
5
Celotex case are similarlynot present here, and therefore the Celotex case should not be considered
either controlling orpersuasive.
The facts before the Hearing Officer and theBoard to date donot
warrant actions as taken in Celotex.
--
Indeed, thereliefgrantedby the Board in Celotex was not the samereliefthatis sought by the’
Petitioner here.
There, the Board
granted a request by a respondent in an enforcement action to
dismiss one count ofthepetitioner’s complaint.
Here, the Petitionerin an appeal is seekinga default
judgment in its entirety. The Board did not consider orcharacterizeits actions-in’ Celotex as granting
default judgment, and thus the case is inapplicable here.
A similar
argument
can be made regarding the other case
cited to by the Petitioner.
In’
Modine Manufacturing v. Pollution Control Board, 192111. App. 3d 511,548 N.E.2d 1145
(2nd
Dist.
1989), the
appellate
court
reviewed a
decision by
the Board
to
dismiss
an
appeal
due
to
the
petitioner’s failure to timely file a brief.
There, the briefin question was filed 26
1/2
weeks afterthe
date ofthe original due date, and there was no intervening request foran extension oftime filedby
the petitioner. Here, therehas been no such gap in time, and the Illinois EPAhas attempted to either
meet deadlines imposedby~the
Hearing Officer or, atthe very least, filea requestforadditional time
to comply with the deadline, thus informing the Hearing Officer of the intent to ultimately follow
through
on the activity in question.
Again, the Modine case.did not involve, the Board
granting
•
defaultjudgment, ratheritconcerned the dismissalofan.appeaiby
a.party
that failed foran egregious
‘
time penod to
comply with a deadline (with no
interveningrequest for additional time)
Case law on the subject ofdefault judgments is clear. Entering a defaultjudgment is a drastic
measure, not be encouraged and only to be employed as a last resort.
Rockford HousingAuthorityv.
Don~hue,337 Ill. App.
3d 571,
786 N.E.2d 227 (2’~
Dist. 2002).
The sanction causing
a
default
.
‘‘
6
judgment is proper only where the sanctioned party’s conduct showed“deliberate, contumacious,or
unwarranted disregard for the court’s authority.”
In re: B.C., D.C., et al.
v. Bernadine C., 317 Ill.
App. 3d 607, 740 N.E.2d 41(1st Dist. 2001).
-
There is
simply no
information ‘before the Board or the Hearing Officer that warrants
a
findingthat the conduct oftheIllinois EPA, orthe undersignedcounsel, hasbeenanything remotely
approaching a deliberate, contumacious,or unwarranteddisregard for theBoard’sauthority.
To the
contrary,the undersignedcounsel has always held theBoard and its HearingOfficers in thehighest
regard,
and
certainly has never taken
any
action
that
was
in
any way intended
to
be
seen
or
interpreted as a sign ofeven the slightest disrespect.
-
However the Petitionermayattempt to portraythe actionsof-the Illinois-EPAorundersigned
counsel in the handling ofthesematters, itis wrongand wholly inappropriate to make any claimthat
any
conduct even hinting ofthe nature required to invoke a sanction of defaultjudgment has been
present.
As such, the Board should not consider entering a default judgment in these appeals.
III.
THE
BOARD
SHOULD NOT
GRANT ANY
ALTERNATIVE
RELIEF’
Aside from the lack of basis
for the Board
to
issue
a default judgment
in
favor of’the
Petitioner, the Board should further denythe Petitioner’s request that theIllinois EPAbe prevented
from presenting any evidence at a hearing on these matters.
......
Pursuant
to
Section
105.112(a)
of the
Board’s
procedural
rules
(35
Ill.
Adm.
Code
105.112(a)), the burden ofproofshall be on thepetitioner.
Inreimbursement appeals,the burden is
,
on the applicant forreimbursement to demonstratethat incurred costs arerelated to correeiive;action,
properly accounted for, and reasonable.
Rezmar Corporationv. Illinois EPA, PCB 02-91 (April. 17,
2003), p.
9.
The primary focus must
remain on the adequacy of the permit
application
and the
7
information submitted by the applicant to the Illinois EPA.
John Sexton Contractors Company v.
Illinois EPA, PCB 88-139 (February
23,
1989),
p.
5.
Further, the ultimate burden ofproofremains
on the partyinitiating an appeal ofan Illinois EPA final decision. John Sexton ContractorsCompany
v. Illinois Pollution Control Board, 201 ill. App. 3d 415,
425-426,’ 558
N.E.2d 1222, 1229 (lstDist.
1990).
Inthe pendingappeals,the burdenofproofis thus onFreedom Oil.
However, theBoard has’
noted that there can be something akinto a shifting ofburden should thepetitionermeet its burden.
Without presenting extensive legal arguments on theappropriateness orlikelihoodofsucha decision
here, it is possible that the Illinois EPA might be put into the position ofhaving to
effectively
demonstrate that
its decisions were correct.
If the Board grants the extreme alternative sanction
requested by the Petitioner, thenitwould essentiallybe preventing theillinois EPA from presenting
any explanation orrationale as to the decisions in question.
The inability to answer an open-ended
•
questionposed by thePetitioner throughtestimony athearingwould be extremelyprejudicial to the
Illinois EPA, far more so than
any
alleged prejudice that mayhavebefallen.th&Petitionerthrough
the
handling ofthis matter thus far.
The Illinois EPA has committed
in these appeals, as it does in
most
every matter ,under
appeal, to fully explore any and all possible avenues foramicable resolution.. It believes it has.done......
so in good faith, though not with the expediency hoped for by the Petitioner.
But, as the Board is
aware, the Illinois EPA cannot grant extensions ofdecision deadlmes, norcan
it
grant open waivers
of deadlines.
Only
the petitioner bringing an action can
do
so, and if such extensions or open
waivers
have been
granted, then it
should be
presumed the petitioner did
so in
a well-thought
manner.
Here, the Illinois EPA freely acknowledges that the Petitiorier has been very receptive to
8
any and all settlement discussions, and there areno complaints orobjections from the illinois EPAto
the handling ofthe appeals on the part ofthe Petitioner.
That said, the situation now beforethe Board in terms o-f-the-timetakeir-twreach-aresolution
is’not entirelyofthe Illinois EPA’s doing, and thus thePetitionermust also shoulder the “blame” for
the time taken to resolve these
cases.
So there is
no mistake, the Illinois EPA is not in any way
insinuating that there has been any fault by the Petitioner in its actions to date; to the contrary, the
time that has elapsed since the filing ofthese consolidated appeals~has
been spent by both-parties-to
work to a resolution ornarrowingofthe issues.
It is somewhat disingenuous ofthe Petitionerto now
cry
foul that
so much time has passed, and
certainly such cries should not be rewarded with the
extreme and prejudicial relief sought by the Petitioner.
IV.
THE ILLINOIS
EPA’S DECISIONS WERE CORRECT
The Petitioner has speculated that the Illinois EPA’s delays suggest a lack ofa defensible
positionin some way.
Justthe opposite is true, as theIllinois EPA firmly believes that its decisions
under
appeal were justified and
correct and will be upheld by
the Board.
This
response to the
Petitioner’s request for a -default judgment or evidentiary sanctions is not the proper
forum for
presenting such arguments, but let there be no doubt that the Illinois EPA’s intention is to make all
due arguments at the proper time.
..
.
‘
..
‘
V.
CONCLUSION
For thereasons statedmore fully above, the Illinois EPA herebyrespectfullyrequests that the
Board deny the Petitioner’s motion for default judgment and its request for alternative relief.
9
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Resp
t
Johnd. Kim
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021
North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
-
Dated: April 6, 2005
10
H
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on April
6, 2005, I served true and
correct
copies of a RESPONSE
TO MOTION FOR DEFAULT JUDGMENT,
by placing true
and
correct
copies
in
properly
sealed
and
addressed
envelopes and
by
depositing
said
sealed
envelopes in a U.S.
mail drop box located within Springfield, Illinois, with sufficient First Class
postage affixed thereto, upon the following named persons:
DorothyM. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue, East
P.O .Box
19274
Springfield, IL
62794-9274
DianaM. Jagiella
Howard & Howard
OneTechnology Plaza
Suite 600
211 Fulton Street
Peoria, IL
6 1602-1350
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Special Assistant Attorney General
Division ofLegal
Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield,
Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Assistant Counsel
