ILLINOIS POLLUTION CONTROL BOARD
    February 1, 1996
    PEOPLE OF THE STATE OF ILLiNOIS,
    )
    )
    Complainant,
    )
    )
    v.
    )
    PCB
    96-75
    )
    (Enforcement-Air)
    HARVEY CASH cl/b/a CASH OIL COMPANY,
    )
    )
    Respondent.
    )
    ORDER OF THE BOARD (0. T, (iirard):
    On January 2, 1996, the complainant filed a motion for summaryjudgment in this
    proceeding. As oftoday no response has been filed by respondent. Pursuant to the
    Board’s regulations at 35 Ill. Adm. Code 101.241 ifno responseis filed the party filling to
    respond may be deemed to waive objection to the granting ofthe motion. Such waiver of
    objection does not bind the Board in its decision on the motion.
    Complainant asks that the Board: grant summaryjudgment against respondent;
    order respondent to cease and desist from fi.srther violations ofthe Act and associated
    Board regulations; impose a civil penalty ofseven thousand dollars; and award costs in
    this matter. In support ofits request, complainant maintains that respondent failed to
    respond within 20 days to complainant’s request to admit facts. Therefore, complainant
    argues the facts are admitted and the admission ofthe facts establish the truth ofthe
    violations alleged in the complaint. Thus, according to the complainant no genuine issue
    offact remains.
    The Board agreesthat the respondent’s failure to respond to the request to admit
    results in the facts being admitted. (See 35 Ill. Adm. Code 103.162(c).) Thus, respondent
    admits that it performed a demolition ofthe Flora Lumber Company and burned some of
    the debris. Respondent further admits that the burned demolition debris was discarded on
    a portion ofproperty which is not a sanitary landfill. (Request to admit at 1-2.)
    However, the Board disagrees that the admission ofthese facts supports granting
    summary judgment. Requests to admit should not include conclusions oflaw or opinions
    oflaw. (See People v. Mindharn, 625 N.E.2d
    835,
    253 Ill.App.3d 792 (Second Dist.
    1994); and Sims v. Alton, 526 N.E.2d 931, 172 Ill.App.3d 694 (5th Dist. 1988).)
    First, the facts which are deemed admitted do not include an admission offact
    which would support a finding that the respondent violated the National Emission
    Standards for Hazardous Air Pollutants (NESHAP) as alleged. Second, the motion
    merely states that the “admission ofthe facts establish the truth ofthe violations alleged in
    the complaint”. Complainant has not specified in its motion how each specific admission
    offact relates to a finding ofviolation ofthe law. Inaddition, complainant has not
    established that a seven thousand dollar fine is appropriate to meet the purposes ofthe
    Act.
    The Board must take into account factors outlined in Section 33(c) ofthe Act in
    determining the unreasonableness ofthe alleged pollutioa (Wells
    Manufacturing
    Companvv. Pollution Control Board, 73 Ill.2d 226, 383 N.E.2d 148 (1978).) Further, the
    Board is expressly authorized by statute to considerthe factors in Section 42(h) ofthe Act
    in determining an appropriate penalty. Therefore, the Board has held that in determining
    the appropriate civil penalty, the Board considers the factors set forth in Sections 33(c)
    and 42(h) ofthe Act. (People v. Berniece Kershaw and Darwin Dale Kershaw cl/b/a
    Kershaw Mobile Home Park, PCB 92-164 (April 20, 1994); EPA v. Allen Barry,
    individually and d/bfa Allen Barry Livestock, PCB 88-71, 111 PCB 11 at 72 (May 10,
    1990).) The record in this case lacks sufficient information to allow the Board to consider
    the factors in Section 3 3(c) and 42(h) ofthe Act in fashioning an appropriate penalty in
    this case.
    For the reasons discussed above, the Board hereby denies the motion for summary
    judgment at this time. Unless additional motions are forthcoming, the hearing officer shall
    proceed with hearingon this matter.
    IT IS SO
    ORDERED.
    I, DorothyM. Gunn, Clerk ofthe Illinois Pollution Con ol Board, hereby certif&
    that the above order was adopted on the
    Lt~~”
    day of
    .,
    1996,
    byavoteof
    7O
    DorothyM. ¶átjnn, Clerk
    Illinois Polluti6n Control Board

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