Modine Mfg. Co. v. Pollution Control Bd.

• Decision Date: 28 December 1989
• Docket Number: No. 2-89-0350,2-89-0350
• Citation: 192 Ill.App.3d 511,548 N.E.2d 1145
• Parties: , 139 Ill.Dec. 589 MODINE MANUFACTURING COMPANY, Appellant, v. The POLLUTION CONTROL BOARD and The Environmental Protection Agency, Appellees.
• Court: United States Appellate Court of Illinois

Page 1145

548 N.E.2d 1145

192 Ill.App.3d 511, 139 Ill.Dec. 589

MODINE MANUFACTURING COMPANY, Appellant, v.The POLLUTION CONTROL BOARD and The Environmental Protection Agency, Appellees.

No. 2-89-0350.

Appellate Court of Illinois Second District.

Dec. 28, 1989.

Rehearing Denied Jan. 29, 1990.

Roy M. Harsch, Daniel F. O'Connell(argued), William W. Yotis, III, Gardner, Carton & Douglas, for Modine Mfg. Co.

Dorothy M. Gunn, John Marlin, Illinois Pollution Control Bd., Chicago, for Pollution Control Bd.

Betty Harrop, Joseph R. Podlewski, Illinois Environmental Protection Agency, Maywood, for E.P.A.

Neil F. Hartigan, Atty. Gen., Chicago, Jan Hughes, Asst. Atty. Gen., Robert J. Ruiz, Sol.Gen., Jerald S. Post, Asst. Atty. Gen. (argued), for appellees.

Justice INGLISdelivered the opinion of the court:

Modine Manufacturing Company(Modine), appeals from a final order entered by the Pollution Control Board(Board) dismissing Modine's permit appeal as a sanction for Modine's failure to timely file its brief.Modine argues that such a sanction was an abuse of the Board's discretion and should be reversed.In support of its argument, Modine contends that (1) it filed its brief only five days late; (2) its failure to timely file a brief did not warrant dismissal of its petition; and (3) the sanction imposed was a radical departure from the Board's policy of allowing late filings.We affirm the Board's ruling.

Modine owns and operates a manufacturing plant in Ringwood, Illinois, where it fabricates aluminum condensers.Modine applied to the Environmental Protection Agency(Agency) for a permit to operate an infrared oven used in its manufacturing process.The operating permit was denied on the basis that Modine had not demonstrated compliance with certain metal-coating requirements contained in section 215.204 of the Illinois Administrative Code(35 Ill.Adm.Code § 215.204(1985)).On August 13, 1987, Modine timely filed a petition for review of the operating-permit denial.Modine argued that its operations constituted "bonding" rather than "coating" operations and, therefore, were not subject to the coating requirements applied by the Agency.

On August 20, 1987, the Board accepted the matter for hearing.Although a decision was originally due within 120 days, pursuant to section 40 of the Environmental Protection Act (Act)(Ill.Rev.Stat.1987, ch. 111 1/2, par. 1040), Modine waived its right to a decision until May 30, 1988.The Agency's first set of interrogatories and request for production of documents were served on Modine and filed with the Board at the end of August 1987.

On September 21, 1987, the hearing officer issued a scheduling order whereby a hearing was set for December 18, 1987.On September 28, 1987, the Agency wrote to Modine informing it that the Agency had not yet received answers to the interrogatories or the documents requested.On October 7, 1987, Modine wrote to the Agency and informed it that Modine would not be able to comply with the Agency's discovery request until November 13, 1987, and proposed a new schedule.Modine also filed its first set of interrogatories, document requests, and requests to admit.

On October 12, 1987, the hearing officer, by agreement of the parties, rescheduled the December 18, 1987, hearing for February 10, 1988, and provided that both parties were to respond to each other's discovery by November 13, 1987.On November 20, 1987, the Agency filed its answers to Modine's first set of interrogatories and request to admit.On December 9, 1987, the Agency filed a motion to compel Modine to answer the Agency's first set of interrogatories and produce documents.By agreement of the parties, the hearing officer granted the Agency's motion to compel and Modine was ordered to comply with the discovery requests by December 18, 1987.On December 18, 1987, Modine filed an unsigned answer to the Agency's interrogatories, and filed a signed copy on December 29, 1987.

On January 27, 1988, Modine filed a motion to extend pretrial matters and to continue the hearing until April 8, 1988.In its motion, Modine further provided that it waived its right to a decision for an "indefinite period of time."Over the Agency's objection, the hearing officer entered an order continuing the hearings until March 9, 1988, and stated that "[t]his order shall not preclude the Respondent from seeking sanctions against Petitioner(if it so chooses) concerning Petitioner's alleged failure to comply with previous discovery requests."

At the conclusion of the hearings on March 10, 1988, Modine and the Agency agreed to file briefs in lieu of closing arguments.On March 14, 1988, the hearing officer established a briefing schedule whereby Modine's brief was due on May 2, 1988, and the Agency's brief was due on May 23, 1988.Neither brief was filed by the due date.On May 25, 1988, Modine's counsel wrote the Agency in response to a telephone call from the Agency and said that he would try to work on the brief over the Memorial Day weekend and that he would move for an extension of time.

On July 15, 1988, the Agency wrote to Modine informing it that its brief was 11 weeks overdue and that the Agency would file a motion to dismiss for want of prosecution if the brief was not filed by July 22, 1988, or if by that date Modine did not inform the Agency when its brief would be filed.On July 21, 1988, counsel for Modine wrote a letter to the Agency confirming a July 19, 1988, telephone conversation with the Agency, and stated, "I must admit to having completely forgotten about this brief."Counsel for Modine stated that the briefing schedule had been misdocketed, and told the Agency, "I am committing to you to have the briefs on your desk by [August 29, 1988.]"No brief was filed by that date.Modine subsequently advised the Agency and the hearing officer that the delay was due to the serious illness of a close relative of the senior attorney in the proceeding, and stated that the brief would be forthcoming.

Because no brief had been filed as of October 6, 1988, the Board on its own motion entered an order noting that it considered the lack of compliance with the hearing officer's March 14, 1988, briefing schedule "a serious matter."It further provided that the nature of the issues in the proceeding were such that they needed to be fully briefed.Accordingly, the Board ordered a new briefing schedule, whereby Modine's brief was due on October 27, 1988, and the Agency's brief was due on November 17, 1988.

Modine again missed the deadline for filing its brief.On November 1, 1988, the Agency filed a motion for sanctions seeking either a judgment by default against Modine and in favor of the Agency, a dismissal of the appeal with prejudice, or an order striking Modine's brief, in the event it was filed before the Board ruled on the Agency's motion.On November 2, 1988, Modine filed its brief with a motion for leave to file instanter.In its motion for leave to file instanter, and in its response to the motion for sanctions, Modine stated that its failure to meet the October 27 deadline was due to the press of other business and a word-processing malfunction.Modine argued that it kept the Agency fully apprised of these developments.However, the Agency denied that it received any word from counsel for Modine until after the motion for sanctions was filed with the Board.

On November 17, 1988, the Board issued an order denying Modine's motion for leave to file its brief instanter, granting the Agency's motion for sanctions, and dismissing the case with prejudice.The Board said that it imposed the sanction because it believed that Modine had unreasonably failed to comply with the orders of the hearing officer and Board.The Board noted that no motions were filed with the hearing officer, and no contact was made with the Board, during the 22-week period between the original due date of Modine's brief (May 2, 1988) and the date the Board issued its order resetting the briefing schedule (October 6, 1988).Although the Board acknowledged Modine's statements regarding the reasons for delay, the Board stated that Modine still should have filed a motion for extension of time.Further, the Board noted:

"The Board has been the object of criticism from many observers for its perceived failure to resolve cases quickly, and has itself recognized the need to tighten its procedures.The Board needs to control its docket, and will not tolerate the delay of a petitioner who files its brief 26 1/2 weeks after the original due date without ever moving the Board for an extension of time, or even contacting the Board."

On December 21, 1988, Modine filed a motion to reconsider.On January 6, 1989, the Agency filed a response arguing that the dismissal was proper.Before making its ruling, the Board ordered the hearing officer to respond to claims made by Modine that it had obtained two extensions of time during the summer of 1988 from the hearing officer.In response, the hearing officer informed the Board that, while Modine's attorney did contact him at various times regarding the brief, he understood the contacts to be a matter of courtesy to explain Modine's tardiness in the preparation of its brief.The hearing officer explained that none of the conversations with Modine were represented to him or understood by him as being oral motions, and no oral extensions of time were granted by him.

On March 9, 1989, the Board issued an order denying Modine's motion for reconsideration and upholding its dismissal of the case.In so doing, the Board stated:

"The record contains no written motions for extensions, and the hearing officer states that he did not grant any oral extensions of time.Given the record, offset only by...