ILLINOIS POLLUTION CONTROL BOARD
August 22, 2002
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
CHIQUITA PROCESSED FOODS, L.L.C.,
a Wisconsin limited liability corporation,
Respondent.
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PCB 02-56
(Enforcement - Water)
ORDER OF THE BOARD (by T.E. Johnson):
On June 5, 2002, the complainant filed a motion to strike Chiquita Processed Foods,
L.L.C., a Wisconsin limited liability corporation’s (Chiquita) objections to the request for the
admission of facts. On June 17, 2002, Chiquita filed a response to the motion to strike, and a
memorandum in support of its response.
For the reasons outlined below, the Board finds the motion to strike objections to the
request to admit facts moot, and accepts complainant’s response to affirmative defense.
PROCEDURAL BACKGROUND
This matter is before the Board on a complaint filed on November 9, 2001, alleging
that Chiquita caused or allowed water pollution in violation of the Environmental Protection
Act (Act) (415 ILCS 5/1
et seq
. (2000),
as amended by
P.A. 92-0574, eff. June 26, 2002, and
the associated regulations at its pumpkin processing facility located in Princeville, Peoria
County. On January 7, 2002, Chiquita filed its answer to the complaint. The answer
contained a number of affirmative defenses that were the subject of a motion to strike by the
complainant. On April 18, 2002, the Board issued an order denying complainant’s motion to
strike affirmative defenses in its entirety.
On April 18, 2002, the complainant served a request for admissions of fact on Chiquita.
On May 16, 2002, Chiquita responded to the request, objecting that,
inter alia
, they were
improper because they were prematurely served. Chiquita’s response resulted in complainant’s
instant motion to strike filed on June 5, 2002, and Chiquita’s subsequent response of June 17,
2002. On July 25, 2002, Board hearing officer requested and received a copy of Chiquita’s
amended response to complainant’s request for admission of facts.
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COMPLAINANT’S MOTION TO STRIKE AND
CHIQUITA’S OBJECTIONS TO THE REQUEST TO ADMIT
On May 16, 2002, Chiquita initially objected to complainant’s entire request for
admission of fact. Chiquita asserted that the request was served before the pleadings had been
joined because the complainant had not yet admitted or denied the affirmative defenses
contained in Chiquita’s January 4, 2002 answer to the complaint. Resp. to Req. at 1. Chiquita
argued that the law clearly requires complainant to submit a response or the allegations in the
affirmative defenses are admitted.
Id
. Chiquita contended that until the complainant
responded to the affirmative defenses, the request to admit is premature.
Chiquita further argued that it was unable to evaluate the relevancy of the request to
admit until the affirmative defenses were answered, and that it could not be known which facts
are in dispute until the complainant answers. Resp. to Req. at 2.
Finally, Chiquita objected to the request to admit to the extent an answer was already
set forth in Chiquita’s answer or affirmative defenses as unduly burdensome for Chiquita to
respond to requests to admit regarding issues not in dispute based on the pleadings. Resp. to
Req. at 2-3.
On June 5, 2002, Chiquita amended its response to the request to admit. Chiquita
asserted that all facts contained in its affirmative defenses are deemed admitted because
complainant did not admit or deny them. Am. Resp. to Req. at 2. Chiquita admitted, denied
or objected to each request. Chiquita did not object to the request to admit on the basis that the
pleadings had not yet been joined.
DISCUSSION
In light of Chiquita’s amended response to the request to admit facts, the motion to
strike objections is moot and the Board will not address the arguments contained therein.
However, issues regarding the procedure and necessity of responding to affirmative defenses
have arisen, and Chiquita requests that if the Board agrees that factual allegations in
affirmative defenses that are not specifically denied are admitted, the Board clarify whether the
reply must be served within 21 or 30 days of the affirmative defenses.
Accordingly, before the Board are the following issues: what are the consequences, if
any, of not responding to affirmative defenses, and what is the deadline by which a response
must be filed?
The Board’s procedural rules are silent on these issues, providing no guidance for
responding to affirmative defenses. The Board addressed this issue prior to the Board’s
adoption of new procedural rules on January 1, 2001, and relied on the fact that the allegations
in a complaint before the Board were deemed denied if no answer was filed.
See
IEPA v.
Louis Di Ciccio, PCB 73-493 (May 23, 1974). Under the new procedural rules, all material
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allegations of the complaint will be taken as admitted if no answer is filed or if not specifically
denied by answer.
See
35 Ill. Adm. Code 103.204(d).
Pursuant to 35 Ill. Adm. Code 101.100(b), the Illinois Code of Civil Procedure and the
Supreme Court Rules do not expressly apply to proceedings before the Board, but may be used
for guidance where the Board’s procedural rules are silent.
Illinois Supreme Court Rule 182(a) provides that replies to answers shall be filed within
21 days after the last day allowed for the filing of the answer. Although the Board’s
procedural rules do not address the consequences of not filing a response to answers or
affirmative defenses, caselaw provides that if no reply to an answer or affirmative defenses is
timely filed the allegations asserting
an affirmative defense are admitted.
See
Lundberg v.
Gage, 22 Ill. 2d 249, 251, 174 N.E.2d 845 (1961).
In this instance, the Board declines to adopt the procedures outlined by the Supreme
Court Rules and relevant Illinois caselaw for practice before the Board. Factual assertions
contained in an affirmative defense filed with the Board may be addressed at hearing if no
response is filed. Accordingly, the complainant’s June 24, 2002 response is accepted because
no time for filing a response to an answer or affirmative defenses is contained in the Board’s
procedural rules. The factual allegations in the affirmative defenses are not deemed admitted.
CONCLUSION
Complainant’s motion to strike Chiquita’s response to the request to admit facts is
moot, and will not be decided. Complainant’s response to affirmative defenses is accepted.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on August 22, 2002, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
