BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
WILLIAM BREUER,
)
)
Petitioner,
)
)
vs.
)
PCB No. 06-25
(UST Appeal)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
NOTICE
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
RECEIVED
CLERK’S OFFICE
DEC 022005
STATE OF ILLINOIS
Pollution Control Board
John J.
Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, IL 62794-9276
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of
the Pollution Control Board a Motion for Sanctions, a copy of which is herewith
served upon you.
Robert E. Shaw
ILARDC
Curtis W.
ILARDC
SHAW &
Attorneys at Law
123 S. 10th Street,
P.O. Box 1789
No. 03123632
Martin
No. 06201592
MARTIN, P.C.
Suite 302
Mt. Vernon, Illinois 62864
Telephone (618) 244-1788
By
‘AyIrney for
William Breuer,~7yfitioner
BEFORE THE POLLUTION CONTROL BOARD RECEIVED
OF THE STATE OF ILLINOIS
CLERK’S OFFICE
WILLIAM BREUER,
)
DEC 022005
)
STATE OF ILLINOIS
Petitioner,
)
Pollution Control Board
)
vs.
)
PCB 06-25
(UST Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
MOTION FOR SANCTIONS
NOW COMES the Petitioner, William Breuer (“Breuer”), by one of his
attorneys, Curtis W. Martin of Shaw & Martin, P.C., for his Motion for Sanctions,
pursuant to 35 Ill. Adm. Code 101.800, states as follows:
1.
On August 12, 2005, Breuer timely filed a Petition for Review of Final
Agency Leaking Underground Storage Tank Decision requesting the Illinois
Pollution Control Board (“Board”) to review a July 6, 2005 determination of the
Illinois Environmental Protection Agency (“Agency”) pursuant to 415 ILCS
5140(a)(1)
and 35 Ill. Adm. Code 105.402.
2.
On September 20, 2005, Breuer filed a Motion to Amend Petition for
Review of Final Agency Leaking Underground Storage Tank Decision which Motion
was granted by the Board by Order of October 6, 2005.
3.
As a result of the filing of the Amended Petition on September 20,
2005, the Board by its October 6, 2005 Order extended the statutory decision
deadline to January 18, 2006.
4.
By Hearing Officer Order of September 22, 2005, the hearing on
Breuer’s Amended Petition was tentatively set for October 28, 2005, and was
officially noticed for hearing by the Hearing Officer on October 5, 2005 for October
28, 2005.
5.
35 Ill. Adm. Code 105.410 requires the Agency to file the entire record
of its decision with the Board in accordance with 35 Ill. Adm. Code 105.116.
6.
35 Ill. Adm. Code 105.116 requires the Agency to file with the Board
the entire record of its decision within 30 days after the filing of the Petition for
Review, unless otherwise provided by Rule or by the Board or Hearing Officer. The
Agency may seek additional time within which to file the record, but such request
must be filed with the Board before the date on which the record is due to be filed.
7.
Since Breuer’s Amended Petition was filed September 20, 2005, as
noted by the Board’s Order of October 6, 2005, the Agency was required to file with
the Board the record on or before October 20, 2005, as the Agency did not seek
additional time within which to file the record and no other rule, nor the Board or
the Hearing Officer provided for a different filing date.
8.
As a result of the Agency’s failure to timely file the record with the
Board, Breuer requested and received a continuance of the hearing set for October
28, 2005 and the hearing was reset for December 1, 2005.
9.
As of the filing of this Motion, the Agency has not yet filed the record
with the Board.
10.
Breuer cannot adequately prepare for the hearing on his Amended
Petition set for December 1, 2005 without the record.
11.
Even if the record were filed as of the date of this Motion, Breuer
would have insufficient time within which to adequately prepare for the hearing on
the Amended Petition set for December 1, 2005.
12.
Contemporaneously with this Motion, Breuer has filed a Motion to
Continue the hearing set for December 1, 2005.
13.
The statutory decision deadline with regard to Breuer’s Amended
Petition remains January 18, 2006.
14.
35111. Adm. Code 105.118 provides that if the Agency unreasonably
fails to timely file the record on or before the date required under the Sections
referenced above, the Board may sanction the Agency in accordance with 35 Ill.
Adm. Code 101.Subpart H.
15.
35 Ill. Adm. Code 101.Subpart H consists of 35 Ill. Adm. Code 101.800
entitled “Sanctions for Failure to Comply with Procedural Rules, Board Orders, or
Hearing Officer Orders.”
16.
In particular, 35 Ill. Adm. Code 101.800(a) provides that if any person
unreasonably fails to comply with any provision of 35 Ill. Adm. Code 101 through
130, the Board may order sanctions upon its own motion or in response to a motion
by a party.
17.
In light of the Agency’s unreasonable failure to comply with 35 Ill.
Adm. Code 105.410 and 105.116 in not timely filing the record with the Board, this
Board should order sanctions against the Agency pursuant to this Motion.
18.
35 Ill. Adm. Code 101.800(b)(4) provides in part that a Judgment by
default may be entered against the offending person.
19.
35 Ill. Adm. Code 101.800(c) provides that in deciding which sanction
to impose the Board is to consider factors such as the relative severity of the failure
to comply, the past history of the proceeding, and the degree to which the
proceeding has been delayed or prejudiced.
20.
Breuer has not been able to adequately prepare for and present its
Amended Petition without the timely filed record, the Agency has more than once
failed to timely file the record, and the proceedings have been delayed to Breuer’s
prejudice.
21.
As a sanction against the Agency, Breuer requests this Board grant
Breuer a Judgment by default in accordance with the request in his Amended
Petition.
WHEREFORE, Petitioner, William Breuer, prays that this Board grant him
a Judgment by default in accordance with his request in his Amended Petition for
Review of Final Agency Leaking Underground Storage Tank Decision filed
September 20, 2005, including the approval of Breuer’s Third Amended High
Priority Corrective Action Plan and Budget and the recovery of his attorney’s fees
and costs incurred pursuant to 415 ILCS 5/57.8(1) and 35 Ill. Adm. Code 732.606(1),
and that he have such other and further relief as this Board deems just and proper
under the circumstances.
SHAW & MARTIN, P.C.
By___
/eurtis W. Martin, .4tIorney for
(
William Breuer, P titioner
Curtis W. Martin
IL ARDC No. 06201592
SHAW & MARTIN, P.C.
Attorneys at Law
123 S. 10th Street, Suite 302
P.O. Box 1789
Mt. Vernon, Illinois 62864
Telephone (618) 244-1788
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on November 29, 2005,
I served true and correct copies of the Motion for Sanctions, by placing a true and
correct copy in properly sealed and addressed envelopes and by depositing said
sealed envelopes in a U.S. mail drop box located within Mt. Vernon, Illinois, with
sufficient postage affixed thereto, upon the following named persons:
Dorothy M. Gunn, Clerk
John J. Kim
Illinois Pollution Control Board
Assistant Counsel
State of Illinois Center
Special Assistant Attorney General
100 West Randolph Street
Division of Legal Counsel
Suite 11-500
1021 North Grand Avenue, East
Chicago, IL 60601
P.O. Box 19276
Springfield, IL 62794-9276
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL 62796-9274
/Curtis W. Martin, ttorney for
(
Petitioner, Wi~~~~Breuer
