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.
    74-290

    —2--
    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.
    74-291

    —3—
    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
    74-292

    Back to top