ILLINOIS POLLUTION CONTROL BOARD
April 20, 2000
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
BABSON BROTHERS COMPANY, an
Illinois corporation,
Respondent.
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PCB 00-102
(Enforcement - Cost Recovery)
OPINION AND ORDER OF THE BOARD (by C.A. Manning):
This matter comes before the Board on a motion for summary judgment filed on
March 15, 2000, by the Illinois Attorney General’s Office on behalf of the People of the State
of Illinois (complainant). Complainant alleges that Babson Brothers (respondent) failed to pay
for review and evaluation services performed by the Illinois Environmental Protection Agency
(Agency) pursuant to a 1994 agreement; and that the Agency is entitled to payment under
Section 22.2(m) of the Environmental Protection Act (Act)(415 ILCS 5/22.(m) (1994)), which
has been recodified as Section 58.7(b)(1) of the Act (415 ILCS 5/58.7(b)(1) (1998).
1
The complaint was filed on December 16, 1999. On February 2, 2000, complainant
served upon respondent a request for admission of facts. Respondent did not file a response to
this request for admission of facts. Likewise, respondent did not file a response to the
complaint or to the motion for summary judgment. For the reasons stated in this opinion, the
Board grants summary judgment to the complainant, and awards costs in the amount of
$29,580.
Complainant correctly points the Board to Section 103.162(c) of our rules (35 Ill. Adm.
Code 103.162(c)) which provides:
Each of the matters of fact and the genuineness of each document
of which admission is requested is admitted unless . . . the party
to whom the request is directed serves upon the party requesting
the admission a sworn statement denying specifically the matters
. . . (35 Ill. Adm. Code 103.162(c)).
As the respondent has not filed a response to complainant’s request to admit facts, the
Board will deem the facts asserted therein to be admitted in accordance with Section
1
Section 58.7(b)(1) became effective December 15, 1995. Public Act 89-431.
2
103.162(c) of the procedural rules. With respect to facts not included in the request to admit,
the Board will accept the complainant’s evidence of the agreement, an affidavit of services
performed, and copies of invoices. Accordingly, the Board finds the following facts.
On June 1, 1994, respondent entered into a Review and Evaluation Services agreement
(agreement) with the Agency. Mot. at 3; Exh. B.
2
Pursuant to the agreement, the Agency
provided review and evaluation services for removal and remedial actions at a site owned or
operated by respondent in Plato Center, Kane County, Illinois, known as Surge Farm (site).
Comp. at 1-2. The agreement states that respondent agrees to pay all laboratory fees incurred
by the Agency for analytical testing performed at the site, and any reasonable costs incurred
and documented by the Agency within 30 days after receiving the billing statement and
documentation. Exh. B. The agreement allows respondent to terminate the agreement upon a
15-day written notification, yet respondent has never done so.
Mot. at 3; Exh. B.
Although the exact dates and nature of the services performed are not detailed in the
evidence, the Agency performed various oversight and sampling analysis activities for
respondent and incurred laboratory fees. Mot. at 3; Exhs. C and E. Respondent made proper
payments to the Agency through October 12, 1995. Comp. at 2-3. On June 25, 1996, the
Agency sent an invoice to respondent for $10,836. On or about September 10, 1996, the
Agency sent respondent a past due notice for the June invoice. Comp. at 3. On or about July
14, 1998, the Agency sent an invoice to respondent via certified mail for $29,580, which
included past due amounts as well as additional charges. Comp. at 3; Exh. C. Respondent
failed to pay the invoices, and did not cancel the agreement. Mot. at 3.
DISCUSSION
Summary judgment is appropriate when the pleadings, together with other items in the
record, show that there is no genuine issue of material fact and that the moving party is entitled
to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 693 N.E.2d
358 (1998). In ruling on a motion for summary judgment, the Board must consider the
pleadings and other evidence “strictly against the movant and in favor of the opposing party.”
Id.
Summary judgment “is a drastic means of disposing of litigation,” and therefore it should
be granted only when the movant’s right to the relief is “clear and free from doubt.”
Id.
, citing
Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). However, a party opposing
a motion for summary judgment must “present a factual basis which would arguably entitle [it]
to a judgment.” Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2d
Dist. 1994).
Complainant has provided evidence of the agreement, an affidavit of services performed,
and invoices that support the facts alleged. Moreover, respondent has not disputed any fact
2
Complainant’s motion for summary judgment will be cited as Mot. at ___; exhibits will be
cited as Exh. ___; and the complaint will be cited as Comp. at ____.
3
alleged in the complaint, the request for admission of facts, or the motion for summary
judgment.
At the time the parties entered into the agreement, Section 22.2(m) of the Act provided
in part:
(m)(1) The Agency may, subject to available resources, agree to
provide review and evaluation services for actions at sites where
hazardous substances or pesticides may be present for which the
owner or operator requested such services in writing or where
another person has requested such services in writing and supplied
the Agency with the written consent of the owner or operator of
the site. As a condition for providing such services, the Agency
may require that the owner or operator of a site:
* * *
(D) Agrees to pay any reasonable costs incurred and documented
by the Agency in providing such services.
This Section was later amended, and became Section 58.7(b)(1) of Act. That
Section provides in part:
(b)(1) Except for sites excluded under subdivision (a)(2) of
Section 58.1, the Agency shall, subject to available resources,
agree to provide review and evaluation services for activities
carried out pursuant to this Title for which the RA
3
requested the
services in writing. As a condition for providing such services,
the Agency may require that the RA for a site:
(D) Agree to pay any reasonable costs incurred and documented
by the Agency in providing such services.
Here, the Agency and respondent entered into an agreement, and the Agency performed
review and evaluation services as set forth in the agreement. Respondent failed to pay for these
services in the amount of $29,580.
The Board finds that there are no genuine issues of material fact and that complainant is
entitled to judgment as a matter of law. Accordingly, the Board grants complainant’s motion
for summary judgment.
This opinion constitutes the Board’s findings of fact and conclusions of law in this
matter.
3
Remediation applicant. See 415 ILCS 5/58.2 (1998).
4
ORDER
1.
The Board grants complainant’s motion for summary judgment.
2.
Respondent shall pay the amount of $29,580 to the Hazardous Waste Fund.
Payment shall be made by certified check or money order payable to the
Hazardous Waste Fund within 30 days from the date of this order, and shall be
sent by first class mail to the following address:
Illinois Environmental Protection Agency
Hazardous Waste Management Fund
1021 North Grand Avenue East
Springfield, Illinois 62702
3.
The certified check or money order shall clearly indicate on its face respondent’s
federal employer identification number, and that the payments are directed to the
Hazardous Waste Fund.
4.
Any such penalty not paid within the time prescribed shall incur interest at the
rate set forth in subsection (a) of Section 1003 of the Illinois Income Tax Act (35
ILCS 5/1003 (1998)), as now or hereafter amended, from the date payment is
due until the date payment is received. Interest shall not accrue during the
pendency of an appeal during which payment of the penalty is stayed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1998)) provides for the
appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 145 Ill. 2d
R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 20th day of April 2000 by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
