THIS FILING SUBMITTED ON RECYCLED PAPER
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    ROBERT F. KASSELA JR. and
    )
    KELLIE R. KASSELA,
    )
    )
    Complainants,
    )
    )
    v.
    )
    PCB No. 06-001
    )
    (Enforcement – Noise)
    TNT LOGISTICS NORTH AMERICA
    )
    INC.,
    )
    )
    Respondent.
    )
    NOTICE OF FILING
    TO:
    Ms. Dorothy M. Gunn
    Bradley P. Halloran, Esq.
    Clerk of the Board
    Hearing Officer
    Illinois Pollution Control Board
    Illinois Pollution Control Board
    100 West Randolph Street
    100 West Randolph Street
    Suite 11-500
    Suite 11-500
    Chicago, Illinois 60601
    Chicago, Illinois 60601
    (VIA ELECTRONIC MAIL)
    (VIA FIRST CLASS MAIL)
    (SEE PERSONS ON ATTACHED SERVICE LIST)
    PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
    the Illinois Pollution Control Board
    RESPONSE TO COMPLAINANTS’ MOTION
    FOR EXPEDITED RULING ON MOTION FOR LEAVE TO AMEND
    COMPLAINT,
    INSTANTER
    , AND TNT LOGISTICS NORTH AMERICA, INC.’S
    MOTION TO INCLUDE COMMUNICATIONS IN RECORD
    , a copy of which is
    herewith served upon you.
    Respectfully submitted,
    TNT LOGISTICS NORTH AMERICA INC.,
    Respondent,
    Dated: February 28, 2006
    By: /s/Thomas G. Safley
    One of Its Attorneys
    Edward W. Dwyer
    Thomas G. Safley
    HODGE DWYER ZEMAN
    3150 Roland Avenue
    Post Office Box 5776
    Springfield, Illinois 62705-5776
    (217) 523-4900
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 28, 2006
    CERTIFICATE OF SERVICE
    I, Thomas G. Safley, the undersigned, hereby certify that I have served the
    attached RESPONSE TO COMPLAINANTS’ MOTION FOR EXPEDITED RULING
    ON MOTION FOR LEAVE TO AMEND COMPLAINT,
    INSTANTER
    , AND TNT
    LOGISTICS NORTH AMERICA, INC.’S MOTION TO INCLUDE
    COMMUNICATIONS IN RECORD upon:
    Ms. Dorothy M. Gunn
    Clerk of the Board
    Illinois Pollution Control Board
    100 West Randolph Street
    Suite 11-500
    Chicago, Illinois 60601
    via electronic mail on February 28, 2006; and upon:
    Bradley P. Halloran, Esq.
    Hearing Officer
    Illinois Pollution Control Board
    100 West Randolph Street
    Suite 11-500
    Chicago, Illinois 60601
    Timothy M. Nolan, Esq.
    Mary Ann Sullivan, Esq.
    53 West Jackson Boulevard
    Suite 1137
    Chicago, Illinois 60604-3702
    by depositing said documents in the United States Mail, postage prepaid, in Springfield,
    Illinois on February 28, 2006.
    /s/Thomas G. Safley
    Thomas G. Safley
    TNTL:002/Fil/Kassela/NOF-COS – Response to Motion for Expedited Ruling
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 28, 2006
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    ROBERT F. KASSELA JR. and
    )
    KELLIE R. KASSELA,
    )
    )
    Complainants,
    )
    )
    v.
    )
    PCB No. 06-001
    )
    (Enforcement – Noise)
    TNT LOGISTICS NORTH AMERICA
    )
    INC.,
    )
    )
    Respondent.
    )
    RESPONSE TO COMPLAINANTS’ MOTION FOR
    EXPEDITED RULING ON MOTION FOR LEAVE
    TO AMEND COMPLAINT,
    INSTANTER,
    AND TNT LOGISTICS NORTH
    AMERICA, INC.’S MOTION TO INCLUDE COMMUNICATIONS IN RECORD
    NOW COMES Respondent, TNT LOGISTICS NORTH AMERICA, INC.
    (“Respondent” or “TNT”), by and through its attorneys, HODGE DWYER ZEMAN, and
    for its Response to Complainants’ Motion for Expedited Ruling on Motion for Leave to
    Amend Complaint, Instanter (“Motion for Expedited Ruling”), and TNT’S Motion to
    Include Communications in Record, states as follows:
    I. RESPONSE TO MOTION FOR EXPEDITED RULING
    1.
    On February 14, 2006, Complainants served on the undersigned
    Complainants’ Motion for Expedited Ruling.
    2.
    That Motion asks the Illinois Pollution Control Board (“Board”) to
    expedite its ruling on Complainants’ earlier-filed Motion for Leave to Amend Complaint,
    Instanter (“Motion for Leave to Amend”).
    3.
    TNT has no objection to the Board expediting its ruling on Complainants’
    Motion for Leave to Amend.
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 28, 2006
    2
    II. TNT’S MOTION TO INCLUDE COMMUNICATIONS IN RECORD
    4.
    Despite the foregoing, one statement made in Complainants’ Motion for
    Expedited Ruling has caused TNT some concern.
    5.
    Specifically, the third paragraph of Complainants’ Motion for Expedited
    Ruling states:
    Complainants sought, received and relied upon guidance of IPCB in
    drafting and filing their Complaint and were dissuaded from retaining
    counsel, having been advised that IPCB would fulfill that role.
    Motion for Expedited Ruling at 1.
    6.
    Thus, Complainants’ Motion for Expedited Ruling alleges that:
    (a)
    some person(s) at the Board gave Complainants “guidance .
    . . in drafting . . . their Complaint” against TNT;
    (b)
    some person(s) at the Board gave Complainants “guidance .
    . . in . . . filing their Complaint” against TNT;
    (c)
    some person(s) at the Board or elsewhere (the allegation is
    unclear) “dissuaded” Complainants “from retaining
    counsel” to represent them in their action against TNT; and,
    (d)
    some person(s) at the Board or elsewhere “advised”
    Complainants “that IPCB would fulfill that role,” i.e., that
    the Board would act as counsel for Complainants in their
    action against TNT.
    Id.
    7.
    Complainants filed no affidavit or other proof in support of these
    allegations.
    8.
    The Board was created by Section 5 of the Illinois Environmental
    Protection Act to fulfill several rolls, including, but not limited to, “conduct[ing]
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 28, 2006
    3
    proceedings upon complaints charging violations of [the] Act [or] any rule or regulation
    adopted under [the] Act.” 415 ILCS 5/5(d).
    9.
    It is axiomatic that, in conducting adjudicatory proceedings, the Board
    must serve as an impartial decision-maker, in effect, a court. See, e.g.
    , Brown v. Air
    Pollution Control Board, 37 Ill. 2d 450, 227 N.E.2d 754 (Ill. 1967) (holding that an
    adjudicatory proceeding before an administrative agency in Illinois must be “fair and
    impartial.”) See
    also Illinois Administrative Procedures Act, 5 ILCS 100/1-1, et seq.
    10.
    Consistent with this requirement, the Board’s rules specifically provide
    that “[n]o Board Member or Board employee may represent any other person in any
    Board proceeding.” 35 Ill. Admin. Code § 101.112(a).
    11.
    The Board’s rules further provide for the disqualification of a hearing
    officer “for bias or conflict of interest” (35 Ill. Admin. Code § 101.112(c)) and prohibit
    ex parte communications between Board members and employees and litigants before the
    Board once a case is filed.
    12.
    The paragraph of Complainants’ Motion for Expedited Ruling quoted
    above can be read as alleging that some employee of the Board has made statements to
    Complainants to the effect that the Board does not intend to act as a “fair and impartial”
    decision maker in this matter.
    13.
    Such allegation is inconsistent with the undersigned’s experience in
    practicing before the Board.
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 28, 2006
    4
    14.
    However, in light of this allegation, TNT has no option but to move the
    Board to include in the record in this matter all details regarding any communications
    between any Board employee(s) and Complainants, including, but not limited to:
    (a)
    any “guidance” given by such Board employee(s) to
    Complainants “in drafting . . their Complaint” against TNT;
    (b)
    any “guidance” given by such Board employee(s) to
    Complainants “in . . . filing their Complaint” against TNT;
    (c)
    any action by such Board employee(s) to “dissuade[]”
    Complainants “from retaining counsel” to represent them in
    their action against TNT;
    (d)
    any statements by which such Board employee(s)
    “advised” Complainants “that IPCB would fulfill that role,”
    i.e., that the Board would act as counsel for Complainants
    in their action against TNT;
    (e)
    the identity of any Board employee(s) involved in such
    communication(s) with Complainants; and,
    (f)
    the dates on which such communication(s) took place.
    Id.
    15.
    TNT further must move the Board to order Complainants to provide
    affidavits setting forth the same information for inclusion in the Record in this matter.
    III. CONCLUSION
    WHEREFORE, for the above and foregoing reasons, Respondent, TNT
    LOGISTICS NORTH AMERICA, INC., respectfully moves the Board to place the
    information requested above in the Record in this matter, to order Complainants to
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 28, 2006
    5
    provide an affidavit setting forth this same information for inclusion in the Record in this
    matter, and to grant TNT all other relief just and proper in the premises.
    Respectfully submitted,
    TNT LOGISTICS NORTH AMERICA INC.,
    Respondent,
    By: /s/Thomas G. Safley
    One of Its Attorneys
    Dated: February 28, 2006
    Edward W. Dwyer
    Thomas G. Safley
    HODGE DWYER ZEMAN
    3150 Roland Avenue
    Post Office Box 5776
    Springfield, Illinois 62705-5776
    (217) 523-4900
    TNTL:002/Fil/Kassela/Response to Motion for Expedited Ruling
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, FEBRUARY 28, 2006

    Back to top