ILLINOIS POLLUTION CONTROL BOARD
May 16, 2002
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
JOE DECICCO DEMOLITION, INC., an
Illinois corporation,
Respondent.
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PCB 00-110
(Enforcement – Air)
ORDER OF THE BOARD (by N.J. Melas):
This matter is before the Board on a Motion for Clarification filed by complainant on
April 26, 2002. Complainant requests that Board clarify its interim order of April 18, 2002, in
this matter. For the reasons provided below, the Board grants complainant’s motion.
Complainant filed a complaint on December 29, 1999, alleging that Decicco violated
asbestos notification requirements for demolition projects. On November 19, 2001,
complainant filed a motion for summary judgment. Decicco did not answer the complaint or
respond to the motion for summary judgment.
In its April 18, 2002 interim order, the Board granted complainant’s motion for
summary judgment in part and denied it in part. The Board applied Sections 103.204 (d) and
(e) of its procedural rules. Sections 103.204(d) and (e) were promulgated when the Board
adopted its new procedural rules which went into effect on January 1, 2001.
See
Revision of
the Board’s Procedural Rules: 35 Ill. Adm. Code 101-130, R00-20 (Dec. 21, 2000). Section
103.204(d) and (e) state that all material allegations in a complaint are deemed admitted if a
respondent does not file an answer within 60 days or does not file a motion to stay the 60-day
deadline.
See
35 Ill. Adm. Code 103.204(d) and (e).
In the motion for clarification, complainant asked if the new procedural rules at
Sections 103.204(d) and (e) apply in this situation.
The Board held that the new procedural rules “will apply to all proceedings pending as
of that date and to all proceedings initiated after that date.” Revision of the Board’s
Procedural Rules: 35 Ill. Adm. Code 101-130, R00-20, slip op. at 1 (Dec. 21, 2000).
However, even after the new rules took effect, the former procedural rules still applied to
filings made or due when the former rules were in effect.
See
People v. John Crane, Inc.,
PCB 01-76, slip op. at 2 (May 17, 2001).
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The former procedural rule addressing answers to complaints stated that a respondent
could file an answer to a complaint within 30 days. The former rule also stated that material
allegations would be deemed
denied
if not specifically admitted in the answer or if no answer
is filed. 35 Ill. Adm. Code 103.122(d) (repealed Jan. 1, 2001). The complaint here was filed
December 29, 1999, and any answer was due January 28, 2000 while the former procedural
rules were in effect. Decicco’s lack of an answer constituted a denial of the material
allegations in the complaint.
See
People v. American Disposal Co., PCB 00-67 (Feb. 7,
2002).
Complainant has not filed any requests to admit or any amended complaint under the
new procedural rules.
The Board finds that Decicco, by operation of the former procedural rule, denied the
material allegations in the complaint. Since there are genuine issues of material fact in this
matter, a finding of summary judgment would be precluded. The Board therefore rescinds its
interim order of April 18, 2002, denies complainant’s November 19, 2001 motion for
summary judgment in its entirety, 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 May 16, 2002, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board