ILLINOIS POLLUTION CONTROL BOARD
December 18, 1986
AMERICANS FOR A CLEAN ENVIRONMENT
)
Complainant,
v.
)
PCB 86—68
MERVIS INDUSTRIES, INC., and
H&L LANDFILL, INC.,
)
Respondents.
ORDER OF THE BOARD (by R. C. Flemal):
This matter comes before the Board upon the November 26,
1986 motion to dismiss and motion for summary judgement filed by
Mervis Industries, Inc. (“Mervis”). Americans for a Clean
Environment (“ACE”) filed a response on December 1, 1986.
Mervis’ rationale in support of its motion to dismiss is
that due to ACE’s failure to respond in a timely manner to
Respondents’ First Request to Admit Facts and Genuineness of
Documents (“First Request”), ACE has “admitted” that it is not a
“person” within the meaning of Section 3(s) of the Environmental
Protection Act (“Act”) and therefore has no standing to bring
this action.
Mervis served its First Request on ACE on September 19,
1986. ACE responded on October 17, 1986, 28 days after being
served. As stated by Mervis, under 35 Ill. Adm. Code 103.162(c)
when a request to admit facts has been made, those facts are
admitted unless the person to whom the request is directed within
20 days either specifically denies each matter of which admission
is requested, provides detailed reasons why he cannot truthfully
admit or deny, or provides written objections. ACE states that
it believed in good faith that the Board’s regulations provided
for a 28 day resonse period, as stated in the First
Interrogatories.
Section 3(s) of the Act defines “person” as:
any individual, partnership, copartnership, firm, company,
corporation, association, joint stock company, trust,
estate, political subdivision, state agency, or any other
legal entity, or their legal representative, agent or
assigns.
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Given this broad definition, the Board cannot ascertain how
ACE might be characterized as anything other than a “person”, its
tardy response notwithstanding. ACE falls somewhere within one
or more of the classifications delineated in Section 3(s);
failure to meet the technical requirements of Section 103.162(c)
cannot eliminate the fact that ACE exists in the form of at least
one of the specified entities.
Moreover, ACE has asserted a good faith belief that it had
28 days in which to respond to the First Request, and the Board
understands the basis for that belief. On the same date that
Mervis filed its First Request, it also filed three other
documents: Respondents’ First Interrogatories, Respondents’ First
Request for Documents, and Notice and Demand for Bill of
Particulars. The first two of these documents alleged that ACE
was allowed, pursuant to Board regulations, 28 days in which to
respond. ACE responded within the 28 day timeframe, obviously
believing, as it states, that it had 28 days in which to respond
to all of the documents filed on September 16. The Board has no
reason to doubt ACE’s intentions.
Furthermore, citizen suits are clearly encouraged by the Act
as a method of providing for the restoration, protection, and
enhancement of the quality of the environment (see Section 2).
To dismiss ACE’s complaint due to its minimally late response
would in this instance be putting form over substance, and would
frustrate the intent of the Act. For these reasons, Mervis’
motion to dismiss must be denied.
Mervis’ rationale in support of its motion for summary
judgement is similar to that which it espouses in regard to its
motion to dismiss. That is, that there are no genuine issues of
fact as to any of the facts set forth in the First Request
because ACE did not respond to that request in a timely manner.
Mervis therefore concludes that the facts as stated in the First
Request are admitted by operation of law.
As stated above in regard to Mervis’ motion to dismiss, the
Board cannot find ACE to have admitted the facts contained in the
First Request on the basis of the latter’s late filing.
Consequently, there remain in this matter many factual issues yet
unresolved, but resolvable at hearing to be conducted in the
future. The Board must, therefore, deny Mervis’ motion for
summary judgement.
Mervis’ November 26 motions to dismiss and for summary
judgernent are denied.
The Board note that in reaching these determinations, it is
not in anyway prejudging the merit of ACE’s or Mervis’s
respective position.
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IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify,that the above Order was adopted on
the
/.~‘-~
day of
______________,
1986, by a vote
of
____________.
~4 ~
Dorothy M. q’unn, Clerk
Illinois Pollution Control Board
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