BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,)
by LISA MADIGAN, Attorney)
General of the State of Illinois,)
Complainant,)
V.
)
PCB No. 06-27
JOEL HILLMAN, individually,
)
(Enforcement
-
Air)
Respondent.)
NOTICE OF FILING
TO:
See Attached Service List
(VIA ELECTRONIC
FILING)
PLEASE TAKE NOTICE that I have filed with the Office of the Clerk of the Illinois
Pollution Control
Board by electronic filing Complainant's Response to Respondent's Letter
Construed as Motion
for Extension of Time, a copy of which is attached herewith and served
upon you.
Respectfully
submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General of the State of Illinois
BY:
C7~S
STEPITEN J. SYL/VESTEK
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
2 0
th
Floor
Chicago, Illinois
60601
312-814-2087
DATE: December 15, 2005
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
SERVICE LIST
Mr. Joel Hillman
3000
Island Blvd Apt 2003
Aventura, Florida 33160
AND
15 Franklin
Avenue
Quiogue, NY 11978
Mr. Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph, Room 11-500
Chicago, Illinois 60601
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
PEOPLE OF THE
STATE OF ILLINOIS,)
by
LISA MADIGAN, Attorney)
General of the State of Illinois,)
Complainant,)
V.
)
PCB No. 06-27
JOEL
HILLMAN, individually,
)
(Enforcement
-
Air)
Respondent.)
RESPONSE TO
RESPONDENT'S LETTER CONSTRUED AS
MOTION
FOR EXTENSION OF TIME
Complainant, PEOPLE OF THE STATE OF ILLINOIS
("People") hereby submits its
Response to what
has been deemed as Respondent, Joel Hiliman's,
Motion for Extension of
Time to Answer
the Complaint, and without waiving the People's objection
that this matter is not
properly before the Board, since Respondent
has not been served as directed by the Hearing
Officer's
in his December 1, 2005 Order in accordance with
Section 101.304 of the Board's
Procedural Rules, states as follows:
BACKGROUND
1.
On August 24, 2005, the People filed its four count
complaint against
Respondent, JOEL HILLMAN ("Hillman"),
alleging violations of Sections 9(a) and 9. 1(d) of
the
Illinois Environmental Protection Act ("Act"),
415
ILCS
5/9(a) and 9. 1(d) (2004), Section
201.141 of the Board Air Pollution Regulations, 35 Ill.
Adm. Code 201.141, and Sections
61.145(b), (c)(1),
and (c)(6), and 61.150(b) of the U.S. EPA's NESHAPs,
40 C.F.R.
61.145(b),
(c)(1),
and (c)(6), and 61.150(b).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
2.
Also
on August 24, 2005, the People made
service upon Respondent's attorney,
William
J. Anaya ("Anaya"), who had agreed to accept service
on behalf of his client, Hillman.'
3.
On September 12,
2005, Anaya informed counsel for the People that
at Hillman's
direction, Anaya was no longer representing Hillman.
See exhibit A.
4.
On September 15, 2005, the People
served its complaint on Hillman.
5.
On September 22,
2005, the parties participated in a telephonic
status conference
with the hearing officer, and agreed that Hillman's
answer would be due to be
filed
on or before
November 15, 2005.
6.
On November
23, 2005, the People filed its Motion to Deem
Facts Admitted and
for Summary Judgment.
7.
On November 30,
2005, Hillman faxed a letter to the hearing officer
regarding an
extension of time to answer
the complaint and respond to the People's Motion
to Deem Facts
Admitted and for Summary Judgment.
8.
On December 1, 2005, a Hearing
Officer Order was issued construing Hillman's
letter as a Motion for Extension of
Time to Answer the People's Complaint and directing
Hillman to serve the People in accordance
with Section 101.304 of the Board's procedural
rules.
ARGUMENT
Section
101.522 of the Board's Procedural Rules, 35
Ill. Adm. Code 101.522, entitled
"Motions
for Extension of Time," provides as follows:
The Board or hearing
officer, for good cause shown on a motion after
notice to
the opposite party, may
extend the time for filing any document or
doing any act
which is required
by these rules to be done within a limited
period, either before
or after
the expiration of time.
During the pendency of this litigation, Hillman has resided at
3 different locations
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
I.
Respondent
failed to Comply with Both the December
1, 2005 Hearing Office Order
and Section 101.522 of the
Board's Procedural Rules
The December 1, 2005 Hearing Officer
Order in this matter stated, in
pertinent part, as
follows:
On November 30, 2005, the respondent
filed with the Board a letter
that has been
construed
as a motion for extension of time
to file his answer to the complaint.
It
appears from the
face of the letter that the complainant
was not served.
The respondent is
directed to serve the complainant
in accordance with Section
101.304 of the Board's procedural
rules...
Section 101.304 of the Board's Procedural
Rules, 35 Ill. Adm. Code
101.304, provides,
in pertinent part, as follows:
b)
Duty to Serve.
Parties in Board adjudicatory
proceedings are responsible for
service
of all documents they file with
the Clerk's Office. Proof of service
of
initial filings
must be filed with the Board upon completion
of service.
d)
Affidavit or Certificate of Service.
A proceeding is subject to dismissal,
and
parties are subject
to sanctions in accordance with Section
101.800 of this Part, if
service is
not timely made. Proof of proper
service is the responsibility of
the
party filing and serving the document.
An affidavit of service or certificate
of
service must
accompany all filings of all parties.
A sample form of the affidavit
of service and certificate
of service is available
at the Board's Offices (the
locations of the Board's
Offices are listed at 2 Ill. Adm. Code
2175.115) and may
be obtained
electronically at the Board's Web
site.
As of the date of filing this
Response, the People have not
been served a copy of
Hillman's Motion for
Extension of Time in "accordance with
Section 101.304 of the Board's
procedural rules," as directed by
the Hearing Officer.
2
Therefore, Hillman's
Motion for
Extension of
Time is not properly before the Board
and should not be considered, or in
the
alternative,
his Motion for Extension of Time
should be denied.
2
The
People did receive an unsigned copy of the letter
via email from Respondent, Hillman, on November
30, 2005.
Since the People are
aware of Hillman's Motion and to avoid
any further delay in the resolution
of this case, and
without waiving its
objections to Hillnan's failure to comply
with the December 1, 2005 Hearing
Officer Order, the
People have submitted
this Response.
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
HI.
Hilman has not Demonstrated Good Cause Why He Should Be Granted an
Extension of Time to Answer the People's Complaint
The complaint in this matter was filed and served upon Hillman's former attorney,
Mnaya, who had agreed to accept service on behalf of Hillman on August 24, 2005. By letter
dated September 12, 2005, Anaya informed counsel
for the People that at Hillman's direction,
Anaya was no longer representing Hillman.
See exhibit A.
Subsequently, during the September
22, 2005 telephonic status conference with the
Hearing Officer, it was agreed that the time for
HillIman to answer
the complaint would be extended to November 15, 2005, which equaled an
additional 21 days.
On November 15, 2005, 81 days after the People filed its complaint in this matter and
served it upon Hillman's attorney, the People had not been served with Hillman's Answer to the
People's Complaint, as required by the September 22, 2005 Hearing Officer
Order, nor had
Hillman
filed
a motion staying the 60-day period in which to file an answer pursuant
to Section
103.204(d) and (e) of the Board's Procedural Rules,
35
III. Adm. Code 103. 204(d) and (e).
Additionally, Hillman made no attempt to contact counsel for the People nor the Hearing Officer
to explain his inability
to comply with the September 22, 2005 Hearing Officer Order.
As a result of Hillman's failure to answer the People's complaint, on November 23, 2005,
the People filed its Motion to Deem Facts Admitted and for Summary Judgment. On November
29, 2005, subsequent to Hillman's receipt of the People's Motion to Deem Pacts Admitted and
for Summary Judgment and two weeks after the date his answer was due, Hillman sent an email
to counsel for Respondent wherein he stated as follows:
Apparently, I screwed up in not responding ...Pleading ignorance ... is
there a way for me
to request a very short extension so that I may answer the allegations, and set aside the
Motion for Summary Judgment? (emphasis added)
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
See exhibit B.
Additionally, in a telephone conversation between Hillman and counsel for the
People, subsequent to the People's filing of the Motion to Deem Facts Admitted and for
Summary Judgment on November 30, 2005, Hillman stated that he had missed the November 15,
2005 date for filing his answer and indicated that the reason for this was his belief that discovery
had to be undertaken prior to filing an answer.
On November 30, 2005, 96 days after the People filed its complaint in this matter and
served it upon Hillman's attorney, and 15 days after the November 15, 2005 deadline,
Hillman
filed what has been construed as a motion for an extension of time to answer the People's
complaint. In His Motion for Extension of Time,
Hillman stated in pertinent part, as follows:
Unfortunately, our community here in Florida was severely damaged by Hurricane
Wilma, which
occurred in the last days of October. I am very much involved in the
Community, and the time and effort that was required completely diverted my attention
from this most important matter.
.. .
Motion at 1.
While it is true that Hurricane Wilma made landfall and impacted Southern Florida on
October 24 and
25,
2005, that was 21 days, or a full 3 weeks, prior to the November
15,
2005
date with which Hillman had been ordered to
file
his answer by the Hearing Officer. Further,
Hillman failed to request an extension of time to answer the complaint until November 30, 2005,
37 days or more than 5 weeks after Hurricane Wilma made landfall and impacted Southern
Florida. Further, Hillman's statement that "I am very much involved in the Community, and the
time and effort that was required completely diverted my attention," may be
true, but
it
is
certainly lacking in detail and utterly unsupported. It is difficult to believe that it took Hillman
5
weeks to make the minimal effort required to inquire about an extension of time to answer the
People's complaint and to file such a motion.
Xdditionally, his rationale for failing to comply with the Hearing Officer Order of
September 22, 2005, requiring him to answer the People's complaint by November 15, 2005 is
5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
rife
with inconsistency.
Based on Hillman's
communications
it is impossible
to determine
if his
failure
to comply
with the
Hearing Officer
Order
of September
22,
2005 occurred
because
he
was involved
in
"the community"
in
the aftermnath
of Hurricane
Wilma
to the
exclusion
of all
else, because
Hillman
"screwed
up," because
he thought
discovery
had
to be completed
prior
to
his answer,
or most
likely
because in
the People's
Motion
to Deem
Facts Admitted
and
for
Summary
Judgment,
the People
were seeking
the statutory
maximum
penalty
of $8,280,000.00.?
Hillman
certainly
had the
opportunity
of answering
the
People's complaint
within
days
of the
Hearing
Officer
Order of
September
22, 2005,
he could have
requested
an extension
of time
prior
to the November
15,
2005 deadline,
if he
considered
this an important
matter,
but
he did not.
To
date in this
case, Hillman
has been
a source
of delay
and obfuscation.
Hillman
chose
to terminate
his legal
counsel after
the complaint
in this
matter had
been filed
and willingly
chose
to litigate
this matter
on his own
behalf. Further,
Hillman
has
access to the
Board's
Procedural
Rules,
has participated
in all
telephonic
status conferences
and has been
properly
served with
all
of the Board's
and/or
Hearing
Officer Orders
in this
matter, as
well as all
of the People's
filings
with
the Board.
Since Hil
iman has
not demonstrated
good
cause why
he should
be granted
an
extension
of time
to answer
the People's
comnplaint,
Hillman's
Motion
for Extension
of Time
to
Answer the
People's Complaint
should
be denied.
See
exhibit C.
November 29,
2005 email
sent
from
Hillman to counsel
for the
People, sent
20 minutes
after
Hillman's
initial
email,
see exhibit
B
6
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
CONCLUSION
For the foregoing reasons, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
requests that Respondent,
JOEL HILLMAN'S, Motion for Extension of Time to Answer the
People's Complaint should be denied.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General of the State of Illinois
BY:
C '
r ~
-
STE4HEN J. S kESTEV
Assistant Attorney General
Environmental Bureau North
188 West Randolph St.,
2 0
th
Floor
Chicago, Illinois 60601
312-814-2087
7
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
EXHIBIT
LAW
OFFICES
ARNSTEIN
&
LEHR
LLP
120
SOUTH
RIVERSIDE
PLAZA
-SUITE
1200
CHICAGO,
ILLINOIS
60606-391
0
~WE
PAL Ba.
FI.OJO
(312)
876-7100
HOFrAN
ESTAS, sI~W~
William
J. Anaya
FAx (312)
876-0288
MILWALME.
WISCOSIN
(312)
876-7109
www~arnstein.comn
M~anaya~amstein.com
MEMBER OF
I~
Direct
Facsimile:
(312)
876-7309
FOUNDED
1893
LAmyERS
NETOK
Ucensed
In Illinois and
Indiana
September
12,
2005
Office
of the
Attorney
General
State of
Illinois
188 West
Randolph
Chicago,
Illinois
60601
Attention:
Mr.
Stephen
Sylvester.
Re:
People
v.
Hiliman
Cause
Number:
PCB-2006-027
(Air
Enforcement)
Our
File No.:
17346-0004
Dear
Mr. Sylvester:
As
we discussed
on the
telephone
today,
at
Mr. Joel
Hillman's
direction,
we
no longer
represent
Mr. Hillman
in the
above-referenced
matter.
Accordingly,
we
are
not authorized
to accept
service
of process
in
his behalf.
We
have
no additional
information.
Very
truly
yours,
ARNSTEI.Ni&LEHR
4P
Willia
.Aa
WJA:dp
Enclosure
cc:
Mr. Joel
Hillman
Mr.
J. William
Braithwaite
1004123v1
ISP
-.
4
20
ATTORNEY
GENERAL
EflVIoNMENTALBUREAU
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
Page 1
oft2
Sent:
Tuesday,
November
29,
2005
1 0.01
AM
To:
Sylvester,
Stephen
Subject:
Re: People
v. Joel
Hillman PCB
06-27
In
a message
dated
11(28/2005
2:26:10 PM
Eastern
Standard
Time, ssylvester~atg.state.iI.us
writes:
Steve:
Apparently,
I screwed
up in
not
responding
... Pleading
ignorance
...
is
there a
way for ms
to request
a
very short
extension
so that
I may answer
the
allegations,
and set
aside the
Motion
for Summary
.Judgement?
JRHlllman
Joel,
On Wednesday,
November
23,
2005,
the State
filied its Motion
to Deem
Facts
Admitted
and for
Summary
Judgment,
and I
mailed copies
to your
Aventura,
FL and
Qulogue,
NY
addresses.
It is
now
available
for viewing
on the
Illinois Pollution
Control
Board's
WeSite
hfttp:/www.ipcb.state.il.us/documents/dsweb/GetlDocument-49966/
Regarding
your earlier
email,
I do not have
a list
of witnesses
at this
time. Also,
I am unsure
of
which
lab
results you
are referring
to, please
let me
know specifically
which
results
you are referring
to (i.e.
the results
obtained
by the Illinois
EPA or
results obtained
by
your asbestos
contractors)?
'Thank
you,
Stephen
J. Sylvester
Assistant
Attomney
General
Illinois
Attomney
General's
Office
Environmental
Bureau
North
1 88 W.
Randolph Street,
20th
Fl.
Chicago,
IL 60601
Phone: (312)
814-2087
12/14/2005
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
Page 2 of 2
Fax: (312) 8 14-2347
ssvivester6c~atp.stateJiI.us
This e-mail is
a confidential attorney/client,
attorney work product, and/or
pre-decisional FOIA
exempt document intended
solely
for the use of the individual
to whom it is addressed, and
should be handled accordingly.
If you are not the intended
recipient,
please
be advised that you have
received this e-mail in
error and that the use, dissemination,
forwarding, printing
or copying of
this e-mail is strictly prohibited.
If you have received
this e-mail in error,
please notify Stephen Sylvester.
12/14/2005
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
[F~iiBT
1
Page
I
at
I
Sylvester,
Stephen
From:
Joeihillman~aol.comn
Sent:
Tuesday,
November
29, 2005
10:20 AM
To:
Sylvester,
Stephen
Subject:
My question,
is there
an administative
proceedure
which
allows
me to
appeal for
a short
extended
time to
respond.
In light
of
the
enormous
sum
claimed,
and due
to mitigating
circumstances,
I would
like to have
this
opportunity.
Please
advise.
JRHillman
12/15/2005
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
CERTIFICATE OF SERVICE
I,
STEPHEN J. SYLVESTER, an Assistant Attorney General in this case, do certify that I
caused to be served this
15h
day of December, 2005, the foregoing Response to Respondent's
Letter Construed As Motion for Extension of Time and Notice of Filing upon the persons listed
on said Notice by depositing same in an envelope, by first class postage prepaid, with the United
States Postal Service at 1 00 West Randolph Street, Chicago, Illinois, at or before the hour of
5:00 p.m.
9EPHEN/d. SYLVOSTER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 15, 2005
