ILLINOIS POLLUTION CONTROL BOARD
    June 19, 2003
     
     
    PEOPLE OF THE STATE OF ILLINOIS,
     
    Complainant,
     
    v.
     
    ECONOMY PLATING, INC., an Illinois
    corporation,
     
    Respondent.
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    PCB 97-69
    (Enforcement - Air)
     
    ORDER OF THE BOARD (by N.J. Melas):
     
    On May 22, 2003, the Office of the Attorney General, on behalf of the People of the State
    of Illinois (People), filed a motion to deem facts admitted in this enforcement action (Mot.). For
    the reasons below, this order grants the People’s motion.
     
    BACKGROUND
     
    On October 10, 1996, the People filed a three-count complaint against Economy Plating,
    Inc. (Economy).
    See
    415 ILCS 5/31(c)(1) (2002). The People allege that Economy violated
    Sections 9(a) and (b) of the Environmental Protection Act (Act) and Sections 201.143, 201.302,
    201.144, 254.102(c), 254.402, and 301.142 of the Board’s air pollution regulations. 415 ILCS
    5/9(a) and (b); 35 Ill. Adm. Code 201.143, 201.302, 201.144, 254.102(c), 254.402, and 301.142.
    The People further alleged that Economy violated these provisions by operating equipment
    without a permit, constructing a tank and a fume scrubber without a permit, and failing to file
    annual reports.
     
    The People filed an amended complaint on August 12, 2002, containing a total of five
    counts and alleging additional violations of Sections 9(b) and 9.1(d)(1) of the Act based on
    Economy violating federal regulations and certain conditions of its special operating permit. 415
    ILCS 5/9(b) and 9.1(d)(1) (2002). Both the complaint and the amended complaint concern
    Economy’s electroplating facility located at 2350 N. Elston Avenue, Chicago, Cook County.
     
    The Board did not accept the People’s amended complaint for hearing due to several
    errors. On November 14, 2002, the People filed a second amended complaint alleging the same
    violations and correcting all errors.
     
    On November 21, 2003, the Board accepted Economy’s amended complaint for hearing.
    See
    35 Ill. Adm. Code 103.212(c). The Board noted that Economy must answer the complaint
    within 60 days after receiving the complaint, and directed the hearing officer to proceed to
    hearing. The People filed a motion to deem the facts alleged in the second amended complaint
    admitted on May 22, 2003. The People did not file a motion for summary judgment on the
     
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    violations. Economy did not respond to the People’s motion to deem facts admitted, but did file
    a motion for leave to file an answer, attaching an answer, on June 3, 2003.
     
    THE BOARD’S PROCEDURAL RULES
     
    Section 103.204(d) of the Board’s procedural rules for enforcement actions provides
    in part:
       
    Except as provided in subsection (e) of this Section, the respondent may
    file an answer within 60 days after receipt of the complaint if respondent
    wants to deny any allegations in the complaint. All material allegations of
    the complaint will be taken as admitted if no answer is filed or if not
    specifically denied by the answer, unless respondent asserts a lack of
    knowledge sufficient to form a belief. 35 Ill. Adm. Code 103.204(d).
     
    Subsection (e) of Section 103.204 states that the 60-day period to file an answer will be
    stayed if a respondent timely files a motion attacking the sufficiency of the complaint under
    Section 101.506 of the Board rules. 35 Ill. Adm. Code 103.202(e);
    see also
    35 Ill. Adm. Code
    101.506
     
    Section 103.204(f) provides:
     
    Any party serving a complaint upon another party must include the
    following language in the notice: "Failure to file an answer to this
    complaint within 60 days may have severe consequences. Failure to
    answer will mean that all allegations in the complaint will be taken as
    if admitted for purposes of this proceeding. If you have any questions
    about this procedure, you should contact the hearing officer assigned to
    this proceeding, the Clerk's Office or an attorney." 35 Ill. Adm. Code
    103.204(f).
     
    MOTION TO DEEM FACTS ADMITTED
     
    The People contend that the Board must deem factual allegations in the second amended
    complaint admitted for two reasons: (1) Economy did not filed an answer to the second amended
    complaint until well after the 60-day deadline; and (2) Economy has not filed a motion staying
    the 60-day period. Mot. at 4. The People ask the Board to find that Economy has admitted all
    material allegations asserted in the second amended complaint.
     
    In its June 3, 2003 motion for leave to file an answer, Economy admits that it did receive
    the People’s second amended complaint filed November 14, 2002. Economy claims that it
    prepared an answer to the complaint but failed to file it. Economy argues the Board should
    accept the answer because no prejudice will occur to the People.
     
    Both the second amended complaint and the Board’s order accepting it for hearing
    explained the consequences of failing to answer the complaint. 35 Ill. Adm. Code 103.204(f).
     
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    Economy received the second amended complaint but never filed a motion challenging the
    complaint, which may have stayed the 60-day period for filing an answer. Economy is more
    than five months late in filing an answer. The Board therefore grants the People’s motion to
    deem facts admitted. Accordingly, the Board deems admitted the material allegations alleged in
    the second amended complaint and directs the parties to hearing.
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on June 19, 2003, by a vote of 6-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

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