6
ILLINOIS POLLUTION CONTROL BOARD
September 24, 2008
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
) PCB 04-207
)
(Enforcement – Land)
EDWARD PRUIM and ROBERT PRUIM,
)
)
)
Respondents.
)
_______________________________________
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
) PCB 97-193
)
(Enforcement – Land)
COMMUNITY LANDFILL COMPANY,
) (Consolidated)
INC.,
)
)
Respondent.
)
.
HEARING OFFICER ORDER
This order rules on the Motion To Bar Complainant’s Expert Witnesses And
Report Or Alternatively, To Cancel Hearing Set For October 20-23, 2008, For Cause And
To Reopen Discovery, (Motion) filed September 8, 2008 by respondents’ Community
Landfill Co, Inc. (CLC), and Edward Pruim and Robert Pruim (collectively,
respondents), and the Response in Opposition (Response) filed September 10, 2008, by
the People of the State of Illinois (complainant).
1
1
At a August 28, 2008, telephonic status conference with the hearing officer, discussion
centered on complainant’s expert report authored by Gary Styzens that was served on
respondent on August 26, 2008.
See
Hearing Officer Order, August 28, 2008. The
complainant represented that it was intended to be used as an exhibit in the hearing
scheduled for October 20 through the 23, 2008. The respondents orally objected to the
report. The parties were directed to file written pleadings on the matter. The respondents
were directed to respond in writing on or before September 8, 2008. The complainant
was directed to file its written response on or before September 10, 2008. The respective
pleadings have been timely filed. In respondents’ response, they also include objections
to certain persons included in complainant’s witness list.
6
For the reasons set forth below, the respondents’ motion is granted in part and
denied in part. The October 20-23, 2008, hearings are cancelled, but will be resched
for December 2-5, 2008, rather than in January 2009 as respondents requeste
uled
d.
Respondents’ Motion
Respondents’ motion recites some of the lengthy procedural history of this case,
omitted here in the interest of brevity.
2
Respondents properly note that discovery in the
above-captioned matter was closed on October 12, 2005, and object to complainant’s
named expert witness, John Nosari, and employee of the Illinois Environmental
Protection Agency (Agency or IEPA). Complainant deposed Mr. Nosari on September
10, 2003. The pertinent portion of the deposition transcript reads as follows, with
questions being asked by respondents’ attorney Mr. LaRose, questions being answered
by Mr. Nosari, and comments made by complainant’s attorney Mr. Grant:
Q.
Have you made any of the – have you made any determination as to
any of the component parts of economic benefit?
A.
No.
Q.
That is your assignment, however?
A. That is my assignment.
Q. And before you testify in this case, you intend to do that?
A. That’s correct.
Q. Chris, I’m not going to belabor a lot. I mean, if he doesn’t have any
conclusions. But once he gets them, I’d like to talk to him about it
before the witness stand.
Mr. Grant. No, that’s fine. I don’t have any problem. As a matter of
fact, we’re going to ask him to prepare some sort of report which I will
consider that that’s a continuing obligation to supplement interrogatories
that we have.
Mr. LaRose. And I promise you I won’t waste your time, but I can’t
just ask him about it on the witness stand.
(Motion at 3-4, and attachment Exhibit B. pp. 25-26)
2
This history is set out in some detail in the Board’s orders in People v. Edward and
Robert Pruim/People v. Community Landfill Co, Inc., PCB 04-207 and PCB 97-193
(cons.) (April 20, 2006) abd and People v. Edward and Robert Pruim, PCB 04-207
(March 18, 2004).
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Respondents represent that the report mentioned at the September 10, 2003
deposition was served on them on August 27, 2008. Furthermore, the report is authored
by Gary Styzens, not Mr. Nosari.
See
Motion, Exhibit D. In support of their Motion,
respondents argue that:
Complainant had nearly five (5) years to present a report by its previously
disclosed witness John Nosari, who was deposed on September 10,
2003. Instead, complainant has shown a complete lack of
diligence by waiting until August 27, 2008, to disclose a report
that is not prepared by John Nosari but by somebody else, Gary
Styzens, who had never been mentioned before August 4, 2008. It
is completely unfair to expect respondents to prepare for Styzen’s
testimony in just over a month when complainant has had five (5)
years to supplement discovery and properly present him as a
witness (along with his report). Motion at 8.
Citing Supreme Court Rule 218(c), respondents state that they are entitled
to have all discovery complete a full 60 days prior to hearing. Motion at 5.
Respondents also request that the testimony be barred regarding the
complainant’s “intention to elicit substitute testimony from IEPA employee Brian White
and another newly mentioned witness IEPA employee Blake Harris”. Motion at 5.
Although not clear from respondents’ motion, it appears that the previously named [IEPA
employee] Dave Walters, as witness to a BEN report, may be substituted by Brian White,
who now holds Mr. Walter’s position. Motion at Exhibit F.
Respondents move in the alternative that, should the witnesses be allowed to
testify and the Styzens’ report allowed, that the hearing scheduled for October 20 through
the 23, 2008, be cancelled and continued to a date after January 15, 2009, to allow
respondents time to depose the newly disclosed witnesses, as well as enable the
respondents to name any responsive witnesses of their own. Motion at 7.
Complainant’s Response
Complainant argues that respondents’ motion should be denied in its entirety, and
that hearing should be held as scheduled. Complainant represents that the Styzens’ report
was forwarded to the respondent on August 28, 2008, because prior to that date,
complainant had not received the final calculation from its expert. Response at 3.
Complainant further states that:
[it] is not engaging in new discovery, but rather is honoring its
commitment to provide its expert opinion, first made in 2003.
Although it proposes to substitute Gary Styzens as testifying
witness, his opinion was developed in concert with previously
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disclosed expert Dr. John Nosari (See: Exhibit A, p. 3). Use of a
State employee witness for testimony will only reduce the overall
costs of litigation. Mr. Styzens is readily available for deposition
if the respondents so choose. Response at 3.
Complainant further argues that the respondents’ motion to bar the testimony of
Brian White and Blake Harris should be rejected because the proposed witnesses have
been properly disclosed in conformance with the Board procedure. Motion at 3. In
support of its proposition, the complainant’s cites Section 101.616(c) of the Board’s
procedural rules that states “all discovery must be completed at least 10 days prior to the
scheduled hearing in the proceeding unless the hearing officer orders otherwise”, and that
the 60 day period of Supreme Court Rule 218 does not apply. The complainant further
relies on the Board’s order in People v. Community Landfill Company and the City of
Morris, PCB 03-191 (October 19, 2006) (CLC), and states that the Board found that a
disclosure of a newly identified witness “was consistent with the deadline set by the
hearing officer for the filing of CLC’s witness list.”
Id.
slip at 3.
Finally, complainant states that it has no objection to any further depositions
taken of these newly named witnesses, but “will vigorously object to a cancellation of the
hearing for this purpose”. Response at 4.
Discussion
While the Supreme Court rules do not expressly apply in Board proceedings, the
Board and its hearing officers may look to them for guidance where the Board’s
procedural rules are silent.
See
35 Ill. Adm. Code 101.100(b). In pertinent part, the
Illinois Supreme Court Rule 213 (f) requires that upon written interrogatory, a party must
furnish the identities of witnesses who will testify at trial, including the conclusions and
opinions of the witness and the bases therefor and any reports prepared by the witness
about the case. Illinois Supreme Court Rule 213 (i) also imposes upon a party a duty to
seasonably supplement…whenever new or additional information subsequently becomes
known to that party.
See
Seef v. Ingalls Memorial Hospital
, 311 Ill. App. 3d 99, 724
N.E.2d 115,126-128 (1
st
Dist 2004).
Pursuant to a September 13, 2005, Hearing Officer order, all discovery was
ordered to be completed on or before October 12, 2005. Based on the pleadings,
complainant’s witnesses, Gary Styzens, Brian White and Blake Harris were not formally
identified until the witness list was filed on August 20, 2008. And it was not until
August 27, 2008, that the complainant provided the Styzens’ report that was first alluded
to at the September 10, 2003, deposition.
The pleadings reflect that Mr. Nosari has left the Agency, and that Mr. Walter’s
has moved on to another Agency position. Complainant offers no insight as to when the
respective status changed as to these witnesses. The timing of complainant’s disclosure
of replacement Agency witnesses is not acceptable. Additionally, the Nosari deposition
testimony was not seasonably supplemented by Styzens’ report.
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The complainant asserts that respondents’ motion should be denied because
relevant evidence should not be kept from the Board. However, before the Board
receives evidence, it must have been properly disclosed to the opposing party.
3
Complainant’s reliance on the Board’s order in CLC is misplaced. The main issue was
whether Edward Pruim, who was newly listed as a witness for the respondent, was
healthy enough to testify at the upcoming hearing. The Hearing Officer order dated
October 3, 2006 stated that “due to the issues that need to be addressed at hearing on the
issue of remedy, it appears imperative that Edward Pruim, as financial officer of CLC, be
present at the hearing and available to testify”.
Id
. at 4. The apparent need for the Pruim
testimony there is much like that here, where the newly disclosed witnesses will
presumably testify to any alleged penalties for the Board to consider. Accordingly,
respondents’ motion to bar testimony and other evidence is denied.
The hearing officer also notes that he has been recently advised that the room
reserved for the October 20-23, 2008, hearing is unavailable for October 20-21, 2008.
Based on the parties representations, it appears that two hearing days will not be enough
time in which to complete this hearing, additional hearing days would be required even if
the hearing commenced on October 22 as scheduled.
Respondents’ motion to cancel the hearing scheduled for October 20 through the
23, 2008, is granted in part. But, delay of hearing until January, 2009 is not acceptable.
The hearing will be rescheduled for December 2 through the 5, 2008, in order to give the
respondents an opportunity to depose the witnesses if they so choose. All depositions
must be completed on or before November 7, 2008. Any and all pre-hearing motions are
to be filed on or before November 12, 2008, with any responses due to be filed on or
before November 17, 2008.
IT IS SO ORDERED.
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
312.814.8917
3
Section 101.616( c) of the Board’s procedural rules, states that “all discovery must be
completed at least 10 days prior to the scheduled hearing in the proceeding
unless the
hearing officer orders otherwise”
. (emphasis added).
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CERTIFICATE OF SERVICE
It is hereby certified that true copies of the foregoing order were mailed, first
class, on September 24, 2008, to each of the persons on the attached service list.
It is hereby certified that a true copy of the foregoing order was hand delivered to
the following on September 24, 2008:
John T. Therriault
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
(312) 814-8917
t
l
PCB 2004-207
Clarissa C. Grayson
LaRose & Bosco, Ltd.
200 North LaSalle Street
Suite 2810
Chicago, IL 60601
PCB 2004-207
Christopher J. Grant
Office of the Attorney General
Environmental Bureau
500 South Second Stree
Springfield, IL 62706
PCB 2004-207
Jennifer A. Tomas
Office of the Attorney General
Environmental Bureau
500 South Second Street
Springfield, IL 62706
PCB 2004-207
Robert Pruim
Community Landfill Company
c/o Morris Community Landfil
1501 Ashley Road
Morris, IL 60450
PCB 2004-207
Edward Pruim
Community Landfill Company
c/o Morris Community Landfill
1501 Ashley Road
Morris, IL 60450