ILLINOIS POLLUTION CONTROL BOARD

February

1996

OLIVE STREIT and

LISA STREIT,

)

Complainant,

)

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

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

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

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

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;

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,

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

Amoco also served

a Request

to Admit

the complainants in this matter, Olive and Lisa Streit.

The

Streits timely responded

in accordance

with procedural

rule

103.162.

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

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

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

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

come into play unless the responding party can first

show good cause for the extension.”

(Id. at 209,

citing

Hernandez .v.

Power Construction Co.,

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

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

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