ILLINOIS POLLUTION CONTROL BOARD
    July 30,
    1992
    PEOPLE OF THE STATE OF
    )
    ILLINOIS,
    Complainant,
    )
    PCB 91—53
    v.
    )
    (Enforcement)
    ENAMELERS
    AND
    JAPANNERS,
    INC.,
    )
    Respondent.
    ORDER OF THE
    BOARD
    (by G.
    T. Girard):
    This proceeding is before the Board on a series of motions
    filed by the parties.
    The Complainant has filed three motions
    which include a May 19,
    1992,
    “Motion for Summary Judgement”;
    a
    May 26,
    1992,
    “Motion to Strike Respondent’s Answer to First
    Amended Complaint”;
    and a July 2,
    1992,
    “Motion for Summary
    Judgement as to Counts IV and
    XII”
    of the amended complaint.
    In
    addition the Complainant filed a June 15,
    1992,
    “Reply to
    Respondent’s Answer to Complainants Motion for Summary Judgement”
    and a July 24,
    1992,
    “Reply to Respondent’s Answer to
    Complainants Motion for Summary Judgement”.
    The respondent filed
    a June 4,
    1992,
    “Answer to the Complainant’s May 19,
    1992, Motior
    for Summary Judgement”;
    and a July 15,
    1992,
    “Answer to
    Complainant’s July 2,
    1992, Motion for SuminaryJudgement”.
    The Board will first address the motion for summary
    judgement filed on May 19,
    1992.
    The complainant based its May
    19,
    1992, motion for summary judgement on the failure of the
    respondent to answer the original complaint
    (filed on March 20,
    1991)
    and on the failure of the respondent to reply to the
    complainant’s request for admission of facts
    (filed on February
    18,
    1992).
    Respondent,
    in its June
    4,
    1992,
    response, maintains
    that the request for admission of facts was filed prior to the
    entry of appearance by counsel for the respondent and therefore
    was not properly served.
    Respondent also filed its answer to the
    original complaint on June 4,
    along with a motion to file
    instanter which the hearing officer granted.
    The Board notes
    that the complainant did file a June 15,
    1992,
    reply to the
    respondent’s response; however,
    the complainant did not file a
    motion requesting the right to reply.
    (See 35 Ill. Adm. Code
    101.242(c).)
    Therefore, the Board will not consider the reply.
    Summary judgeinent is appropriate when there are no genuine
    issues of fact to be considered by the trier of fact.
    Although,
    the complainant has properly cited to the Board’s procedural
    rules,
    it is clear that the respondent does believe there are
    issues of fact to be resolved.
    The Board is reluctant to grant
    summary judgement based on procedural error on the part of either
    party,
    especially when the procedural errors are correctable and
    0135-0125
    2
    have to some extent been cOrrected.
    The Board notes that the
    procedural errors do not appear to have prejudiced the
    complainant.
    Therefore, the Board denies the May 19,
    1992,
    motion for summary judgement.
    With regard to the motion for summary judgement filed on
    July
    2,
    1992,
    the complainant states that the answer filed by
    respondent admits the use of “scrlv~ntbased paints”.
    Such
    admission,
    according to complainant,
    is an admission to the
    violations alleged in Count IV of the amended complaint.
    In
    addition, the complainant alleges that the respondent has
    admitted each allegation in count XII of the complaint.
    Respondent filed an answer to the motion on July 15,
    1992,
    and
    stated that the admission of use of “solvent based paint is based
    upon an ambiguity in the regulations referred to in complainant’s
    motion”.
    The respondent states that it will present evidence to
    establish that “water based paint” is a misnomer.
    The respondent
    also affirms its admissions regarding count XII.
    The Board notes
    that the complainant did file a July 23,
    1992,
    reply to the
    respondent’s response; however, the complainant did not file a
    motion requesting the right to reply.
    (See 35
    Ill. Adm. Code
    101.242(c).)
    Therefore, the Board will not consider the reply.
    The Board finds that with regard to count IV, there is an
    issue of fact which should be further explored at hearing.
    Therefore
    summary
    judgement
    on
    count
    IV
    is
    denied.
    However,
    as
    there
    is
    no
    dispute
    that
    the
    respondent
    has
    admitted
    the
    violations alleged under count XII, the Board grants summary
    judgement to count XII.
    The Board. also notes that the motion to strike filed on May
    26,
    1992,
    cites
    to
    failure
    to
    answer
    the
    original
    complaint
    as
    the
    reason
    for striking the answer to the amended complaint since
    the
    answer
    to
    the
    amended
    complaint
    referenced
    an
    answer
    to
    the
    original complaint which had not been filed.
    The answer to the
    original complaint was filed and accepted by the hearing officer
    on June 9,
    1992.
    Therefore, the Board will deny the motion to
    strike.
    IT IS SO ORDERED.
    I,
    Dorothy
    M.
    Gunn,
    Clerk
    of
    the
    Illinois
    Pollution
    Control
    Board~do hereby certify that the above order was adopted on the
    _________
    day of
    _____________,
    1992,
    by a vote of
    ~
    ~
    ~
    Dorothy M.;1unn,
    Clerk
    Illinois P~1lutionControl Board
    0135-0126

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