ILLINOIS POLLUTION CONTROL BOARD
February
1,
1996
OLIVE STREIT and
LISA STREIT,
)
)
Complainant,
)
)
v.
)
PCB95-122
)
(Enforcement
-
UST)
OBERWEIS
DAIRY, INC., RICHARD J.
)
FETZER and JOHNNIE W. WARD
d/bla
)
SERVE-N-SAVE, and RICHARD
J. FETZER,)
individually,
AMOCO OIL COMPANY,
and
)
MOBIL OIL CORPORATION,
)
)
Respondents.
)
)
ORDER OF
THE BOARD (by C.A.
Manning):
This matter
is before the Board on a citizen’s enforcement action filed by Olive and
Lisa
Streit against the
following respondents:
Oberweis Dairy, Inc
(Oberweis), Richard J.
Fetzer and Johnnie W. Ward dfb/a Serve-N-Save,
Amoco Oil Company (Amoco) and
M.obil Oil Company (Mobil).
This immediate order deals with an “Emergency Motion For
Interlocutory Review ofHearing Officer’s Ruling On Respondent Amoco’s Request To
Respondent Oberweis For The Admission Of Facts,”
filed with the Board
on December
22,
1995 by Amoco.
On December 29,1995,
Respondent, Oberweis Dairy, Inc.
(Oberweis), filed a Motion To Deny Interlocutory Appeal.
On January 8,
1996,
Amoco
filed its Response To Motion To Deny Interlocutory Appeal and
a Motion For Board’s
Allowance OfInterlocutory Review Of Hearing Officer’s Ruling.
The background for the above procedural motions stems from the Board
hearing
officer’s ruling allowing Oberweis additional time to file a response to
a Request to
Admit
Facts
which was served by co-respondent, Amoco,
on November 27,
1995.
Amoco’s
Request to Admit was made pursuant to
Section
103.162 ofthe Board’s procedural
rules
(See
35
Ill.
Adm.
Code
103.162).
That section,
similar to Illinois
Supreme Court
Rule
216,
requires that a party respond to the Request to Admit within
20 days or,
alternatively, file an objection with the hearing officer to
said request.
The rule further
states that failure to respond or raise an objection with the hearing officer within the time
prescribed will deem the facts admitted as true.
Specifically,
the relevant rule reads:
Admission
in the Absence ofDenial.
Each ofthe matters offact and the
genuineness ofeach document ofwhich
admission is requested is admitted unless,
within
20 days after service thereof, the
party
to whom
the request
is directed
serves upon the party requesting the admission either a sworn statement denying
2
specifically the matters ofwhich
admission is requested or setting forth in detail the
reasons why he cannot truthfully admit or deny those
matters or written objections
on the ground that some or all ofthe requested admissions are privileged or
irrelevant or that the request is otherwise improper in whole or in part.
Ifwritten
objections to a part ofthe request are made, the remainder of the request shall be
answered within the period designated in the request.
A denial shall fairly meet the
substance ofthe requested admission.
If good faith requires that a party deny only
a part, or requires qualification, of a matter ofwhich an
admission is requested, he
shall specify so much of it as is true and deny
only the
remainder.
Any objection to
a request or to
an answer shall be heard by the Hearing Officer upon prompt notice
and motion ofthe party making the request.
In accordance with Section
103.162(c) Oberweis’
response to
Amoco’s Request
to Admit was due to be served upon Amoco by December
18,
1995,
three days prior to
a
hearing on
the merits in this matter,
which was scheduled and
held on December 21- 22,
1995.
As Oberweis had
not yet responded to
Amoco’s Request to Admit, counsel for
Amoco requested a hearing officer ruling during the hearing that the matters set
forth in
the Request for Admission ofFacts be
deemed admitted and
that
any attempt to introduce
evidence in contradiction ofthose admissions be excluded as irrelevant.
Attorneys for
complainants, Olive
and Lisa Streit,
and co-respondent Mobil, joined in Amoco’s motion.1
In response to the oral motion, the attorney for Oberweis argued, based on
a
conversation he
had with the hearing officer on December
18,
1995
and the hearing
officer’s issuance of a Third Discovery Order on the same day,
he believed the hearing
officer had closed all
discovery and that, therefore,
he was somehow excused from
the
103.162
response requirement.
(December 21,
1995 Hrg.
Tr. at
15-18.)
The hearing
officer ruled that
since it was possible the attorney for Oberweis was confused about her
order and the request to admit included statements which were an
admission ofviolations
and liability rather than merely facts, it would constitute “oppression” under Section
103.200(c) of the Board’s procedural rules to
deem the facts admitted.
(December 21,
1995 Hrg.
Tr.
at 21.)
The hearing officer then ordered Oberweis to respond to the
request as follows:
“This request shall be responded to consistent with the procedural rules;
in
other words, it
will respond to
on an
item-by-item basis or as is stated in Section
103.162,
admitting, denying, or indicating
why the request is otherwise improper
in whole or in part; and that that response be provided, submitted to the Board,
be
provided to me,
and be provided to all
the parties within the next two business
days....1 would
like this to
be responded to by no
later than 4:30
on Tuesday,
December 26.” (Id.)
While the Board received Oberweis’ Response to Amoco’s Request to
Admit on
Tuesday, December 26,
1995,
Amoco did not receive Oberweis’
response via U.S.
mail
1
Amoco also served
a Request
to Admit
on
the complainants in this matter, Olive and Lisa Streit.
The
Streits timely responded
in accordance
with procedural
rule
103.162.
3
until December 29,
1995.
Though the Board’s copy of Oberweis’ response contained a
verification offact signed by Elaine Oberweis, the response served upon
Amoco was not
verified.
These issues have been raised with the Board,
by motion to the hearing officer,
in a motion filed by Amoco on January
11,
1996.
The ChiefHearing Officer referred this
motion to the Board by hearing officer order dated January 22,
1996.
In its December 22,
1995
motion to the Board,
Amoco requests that the Board
entertain this
interlocutory appeal and reverse the ruling ofits hearing officer,
deem all
facts true as set forth in the Request for Admission pursuant to Section
103.162
and strike
Oberweis’ response to the Request to Admit.
Amoco seeks similar reliefin
the January
11,
1996
motion to
strike Oberweis’ responses made pursuant to the hearing officer order.
In its
motion seeking interlocutory appeal ofthe hearing officer’s December 21,
1995
ruling, Amoco argues
that Oberweis’ conversation
with the Board hearing officer on
December
18,
1995
constituted an
expane
communication, that Oberweis has not
demonstrated good cause in order to allow
late responses,
and that the Board hearing
officer had
no authority to
extend the date upon which
responses are due under
Section
103.162.
Based upon the
following, the Board denies Amoco’s interlocutory appeal of
the hearing officer’s December 21,
1995
ruling.
Amoco’s December 22.
1995 Motion.
Regarding the issue ofcx
parte
communication,
the Board believes that the
December
18,
1995 conversation between Oberweis’ attorney and the Board
hearing
officer concerned matters ofprocedure, not issues of substance or merit before the Board.
(See “Hearing Officer Statement Concerning Phone Conference Placed At Issue As
Ex
Parte,”
filed with the Board and
served
on the parties on January
12,
1996,)
illinois law
clearly establishes that matters ofprocedure and practice are not considered ex
parte
communications.
(See
5
ILCS
100/60(d).
We next address Amoco’s contention
that the hearing officer improperly granted
Oberweis an
extension oftime to respond to Amoco’s request to
admit.
Amoco contends
that the Board’s procedural
rule at
35
111.
Adm. Code
103.162(c) does not
allow the
hearing officer discretion to extend the 20-day response time for parties receiving a
request to admit.
As stated above,
the Board’s procedural
rule regarding requests to
admit
found
at 35
III. Code
103.126 is based on
Supreme Court Rule
216.
We therefore
find it instructive to
analyze recent caselaw regarding the Supreme Court Rule.
The Illinois Supreme Court. has held
that a court
has the discretion
to allow an
untimely response to a request to admit to be
served on the opposing
party where the
delinquent party has shown good cause for the
delay.
(Bright v.
Dicke,
166
ill.2d 204,
205 (1995).).
The Supreme Court
also emphasized that
requests to admit are essentially a
discovery tool,
and that circuit courts must be
allowed to
exercise discretion over the
conduct of pretrial discovery.
(Içi.)
However, the Supreme Court held that a
court’s
discretion to
allow a late response
to a request to admit is not unlimited.
The Supreme Court
stated this discretion “does not
4
come into play unless the responding party can first
show good cause for the extension.”
(Id. at 209,
citing
Hernandez .v.
Power Construction Co.,
73
Ill.2d
90, 95-97 (1978).).
The Court further
stated:
The
mere absence ofinconvenience or prejudice to the opposing party is not
sufficient to
establish good cause under Rule 183
and the companion provision of
the Code ofCivil Procedure.
The moving party must
assert some independent
ground for why his
untimely response should be allowed.
(Bright at 209 (citations omitted).)
Like the courts,
the Board’s hearing officers have wide discretion in controlling
discovery.
We find that the hearing officer did not abuse that discretion
in granting
Oberweis an extension oftime to respond to Amoco’s request to admit.
While the Board
declines to adopt the rationale used by the hearing officer in her ruling, i.e., that
Section
103.200(c) allows her to
determine that “deeming the facts admitted” would be an
“oppressive” requirement under the circumstances, her ruling is within the general
authority ofthe hearing officer to regulate discovery.
Based upon the above, the Board
declines to grant the emergency request for interlocutory appeal ofthe hearing officer
ruling filed by Amoco.
Amoco’s January
11.
1996 Motion.
Amoco’s January
11,
1996 motion to strike Oberweis’ response to Amoco’s
Request to Admit was referred to
the Board by the January
22,
1996
ChiefHearing
Officer order.
Oberweis filed its response to
the motion on January
19,
1996.
Amoco
argues in
its motion that Oberweis’ response was not timely, was not
sworn,
was not
certified as being submitted on
recycled paper,
and
was not
accompanied by a proper
notice of filing or proofofservice.
Ai~ioco
therefore requests that the response be
stricken, and that no
further response be allowed.
In Oberweis’ response to
Amoco’s January
1,
1996 motion,
Oberweis asserts
their response the Request to
Admit was timely under the “mailbox
rule,” and that
the
hearing officer did not order that the
mailbox rule would not apply.
Oberweis further
asserts that no prejudice resulted to Amoco,
since 30 days were to pass before the next
hearing date.
Oberweis further cites the
short time frame over the Christmas holiday
allowed for its response.
The Board
finds
that Oberweis’ response should be stricken.
The copy ofthe
response served on Amoco was not properly verified
pursuant to
Section
103.162(c).
The
fact that Oberweis timely filed a properly verified response with the Board does not
overcome the deficiency that Amoco did not receive a properly verified
copy.
Oberweis’
failure to
serve Amoco with a sworn statement causes service in this case to have been
improperly effectuated.
Oberweis therefore
failed to timely serve
a properly signed and
verified
copy ofits response on Amoco.
Accordingly, Amoco’s motion to strike
Oberweis’ response is granted.
IT IS
SO
ORDERED.
I, Dorothy M.
Gunn, Clerk ofthe Illinois Pollution Control Board,
hereby certify
that the above order was adopted on the //~
day of
,
1996, by
a vote of
Dorothy M.fflunn, Clerk
Illinois
Polliltion Control Board