ILLINOIS POLLUTION CONTROL BOARD
February 7, 2002
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
AMERICAN DISPOSAL COMPANY
Respondent.
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PCB 00-67
(RCRA Enforcement)
OPINION AND ORDER OF THE BOARD (by C.A. Manning):
This matter is before the Board on a motion for summary judgment filed by the People of
the State of Illinois (People) on November 27, 2001, against respondent American Disposal
Company (American Disposal). American Disposal did not file a response. For the following
reasons, the Board denies the People’s motion for summary judgment.
BACKGROUND
On October 7, 1999, the People filed a complaint against American Disposal and
Consolidated Rail Corporation (Conrail) alleging that respondents violated Section 21(a) of the
Act (415 ILCS 5/21(a) (2000)) by causing or allowing the open dumping of waste.
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The People
allege that respondents consolidated six drums of unknown waste at a site located at 3725 South
Maplewood, Chicago, Cook County. Complaint (Comp.) at 3, Motion for Summary Judgment
(Mot.) at 3. American Disposal was involuntarily dissolved on
February 2, 1998, for failure to file its annual report and pay its franchise taxes. Comp. at 2.
The People filed a motion for summary judgment against American Disposal on
November 27, 2001, and subsequently filed a supplemental proof of service of the motion on
December 20, 2001. American Disposal did not file an answer to the complaint or a response to
the motion for summary judgment, and has not otherwise appeared before the Board in this
matter.
SUMMARY JUDGMENT
Summary judgment is appropriate where the pleadings and depositions, together with any
affidavits and 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.
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On January 10, 2002, the Board accepted a stipulation and proposed settlement between the
People and Conrail, wherein Conrail denied the alleged violations, and agreed to pay a $5,000
civil penalty. Thus, this order concerns only the remaining respondent: American Disposal.
The caption has been amended accordingly.
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Gleason, 181 Ill. 2d at 460, 693 N.E.2d at 358 (1998). In ruling on a motion for summary
judgment, the Board “must consider the pleadings, depositions, and affidavits strictly against the
movant and in favor of the opposing party.” Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370.
Summary judgment “is a drastic means of disposing of litigation,” and therefore it should
only be granted when the movant’s right to the relief “is clear and free from doubt.” Dowd, 181
Ill. 2d at 483, 693 N.E.2d at 370, citing Putrill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871
(1986). However, a party opposing a motion for summary judgment may not rest on its
pleadings, but must “present a factual basis, which would arguable entitle [it] to a judgment.”
Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994).
ANALYSIS
In this case, American Disposal has not responded to the complaint or replied to the
People’s motion for summary judgment. In recent cases, the Board has granted motions for
summary judgment where the respondents did not file a response or otherwise present any
factual basis which would entitle them to judgment.
See
People v. Morrison, PCB 00-212 (Jan.
18, 2001); People v. Rogers, PCB 00-127, (Nov. 2, 2000). However, the complaints in each of
these cases were filed after the Board’s new procedural rules took effect.
See
In the Matter of:
Revision of the Board’s Procedural Rules: 35 Ill. Adm. Code 101-130,
R 00-20 (Dec. 21, 2000). Under the new procedural rules, if a respondent does not timely file an
answer to a complaint, the facts alleged are deemed admitted.
See
35 Ill. Adm. Code 101.618.
The People’s complaint against American Disposal was filed prior to the effective date of
the new procedural rules. Under the old rules, if a respondent did not timely respond to a
complaint, the allegations were deemed denied, not admitted. 35 Ill. Adm. Code 103.122,
effective prior to January 1, 2001. Since the People have not filed a request to admit facts or an
amended complaint under the new procedural rules, the Board cannot find the facts alleged in the
complaint to be admitted in the absence of an answer. While the People’s motion for summary
judgment sets forth facts as if admitted, the facts have not been admitted as a matter of law and
procedure. Thus, there are no facts yet presented in this proceeding that entitle the People to
summary judgment. Accordingly, the People’s motion is denied.
Finally, the Board notes that Nadine Vorenkamp, named in the complaint as the owner
and president of American Disposal, is not an attorney and cannot represent American Disposal
in this matter.
See
35 Ill. Adm. Code 101.400. American Disposal is ordered to have its attorney
file an appearance in this matter.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on February 7, 2002, by a vote of 7-0.
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Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
