ILLINOIS POLLUTION CONTROL BOARD
    March 20, 2003
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    SKOKIE VALLEY ASPHALT, CO., INC.,
    EDWIN L. FREDERICK, JR., individually
    and as owner and president of SKOKIE
    VALLEY ASPHALT CO., INC., and
    RICHARD J. FREDERICK, individually and
    as owner and vice president of SKOKIE
    VALLEY ASPHALT CO., INC.,
    Respondents.
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    PCB 96-98
    (Enforcement - Water)
    ORDER OF THE BOARD (by T.E. Johnson):
    In this water enforcement action, the Office of the Attorney General, on behalf of the
    People of the State of Illinois (People), filed a motion to deem facts admitted and for summary
    judgment as to respondents Edwin L. Frederick, Jr. and Richard J. Frederick (collectively the
    Fredericks). The immediate dispute centers solely on the timely filing of pleadings. The Board
    denies the People’s motion and directs this case to proceed to hearing.
    PROCEDURAL HISTORY
    On July 26, 2002, the People filed a second amended complaint. That complaint added
    Edwin Frederick and Richard Frederick as respondents. Furthermore, the second amended
    complaint alleged that the Fredericks violated Sections 12(a) and (f) of the Environmental
    Protection Act (Act) (415 ILCS 5/12(a), (f) (2000)), as well as Sections 302.203, 304.105,
    304.106, 305.102(b), 309.102(a), and 309.104(a) of the Board’s regulations. Moreover, the
    complaint alleged that the Fredericks falsified discharge monitoring reports, submitted a late
    application for a National Pollutant Discharge Elimination System (NPDES) permit, failed to
    comply with sampling and reporting requirements in their NPDES permits, discharged oil into a
    drainage ditch, and violated NPDES permit effluent limits.
    The Fredericks filed an untimely motion to strike the People’s second amended complaint
    on September 25, 2002. On October 1, 2002, the People filed their response to the Fredericks’
    motion together with a motion for leave to file a second amended complaint. On October 17,
    2002, the Board denied the motion to strike as moot and accepted the People’s second amended
    complaint. People v. Skokie Valley Asphalt, Co.
    , PCB 96-98, slip op. at 3 (Oct. 17, 2002). The
    final sentence of that order read, “The respondents may file an answer as provided in Section
    2
    103.204(d) of the Board’s rules using October 17, 2002 as the date the complaint was received.”
    People v. Skokie Valley Asphalt, Co., PCB 96-98, slip op. at 3 (Oct. 17, 2002).
    The respondents hand-delivered their answer to the second amended complaint on
    December 20, 2002. On that same day, the People filed the instant motion to deem facts
    admitted and for summary judgment.
    THE BOARD’S PROCEDURAL RULES
    The Board’s enforcement rules in subpart B of part 103 of chapter 35 of the Illinois
    Administrative Code provide, in part:
    Except as provided in subsection (e) of this Section, the respondent may file an
    answer within 60 days after receipt of the complaint if respondent wants to deny
    any allegations in the complaint. All material allegations of the complaint will be
    taken as admitted if no answer is filed or if not specifically denied by the answer,
    unless respondent asserts a lack of knowledge sufficient to form a belief. 35 Ill.
    Adm. Code 103.204(d).
    Subsection (e) indicates that the 60-day period to file an answer will be stayed if a
    respondent timely files a motion to strike the pleading. 35 Ill. Adm. Code 101.506.
    Subsection (f) provides:
    Any party serving a complaint upon another party must include the following
    language in the notice: “Failure to file an answer to this complaint within 60 days
    may have severe consequences. Failure to answer will mean that all allegations in
    the complaint will be taken as if admitted for purposes of this proceeding. If you
    have any questions about this procedure, you should contact the hearing officer
    assigned to this proceeding, the Clerk’s Office or an attorney.” 35 Ill. Adm. Code
    103.204(f).
    The Board’s general rules for computation of time of service provides in pertinent part:
    “In the case of service by U.S. Mail, service is presumed complete four days after mailing.” 35
    Ill. Adm. Code 101.300(c). The Board’s general rules also provide that the date of the Board
    decision for purposes of appeal, is the date of the party’s certified mail receipt of the Board
    decision. 35 Ill. Adm. Code 101.300(d)(2).
    Finally, Section 101.522 provides:
    The Board or hearing officer, for good cause shown on a motion after notice to
    the opposite party, may extend the time for filing any document or doing any act,
    which is required by these rules to be done within a limited period, either before
    or after the expiration of time. 35 Ill. Adm. Code 101.522.
    DISCUSSION
    3
    The People contend that the factual allegations in the second amended against the
    Fredericks must be deemed true because the Fredericks failed to timely file their answer.
    According to the People, the Fredericks’ answer was due December 16, 2002. But the
    Fredericks did not file their answer until December 20, 2002.
    Section 103.204(d) of the Board’s procedural rules plainly states that a respondent may
    file an answer within 60 days after receipt of the complaint. In this instance, the respondent
    initially received the complaint in late July of 2002. Instead of filing an answer to the complaint,
    the Fredericks filed a motion to strike the complaint. That motion was resolved in the Board’s
    October 17, 2002 order.
    See
    People v. Skokie Valley Asphalt, Co., PCB 96-98, slip op. at 3
    (Oct. 17, 2002). The final sentence of that order generously held that for purposes of filing an
    answer to the second amended complaint according to Section 103.204(d), the respondents
    should use October 17, 2002 as the date the complaint was received. People v. Skokie Valley
    Asphalt, Co., PCB 96-98, slip op. at 3 (Oct. 17, 2002). Consequently, the Fredericks had until
    December 16, 2002, to timely file an answer.
    The Fredericks argue that Section 101.300(c) of the Board’s procedural rules provided
    them with an additional four-day buffer to timely file their answer. The Fredericks’ argument is
    meritless. Section 101.300(c), the service mailbox rule, provides that service of a document by
    U.S. mail is presumed complete four days after mailing. 35 Ill. Adm. Code 101.300(c). The
    Board’s service mailbox rule does not transform the October 17, 2002 complaint receipt date into
    October 21, 2002. Consequently, the December 16, 2002 deadline date remains firm. Although
    the Fredericks may have received the October 17, 2002 order on October 21, 2002, Section
    101.300(c) does not alter the explicit language of the order, which provides that October 17,
    2002, is the complaint receipt date. The service mailbox rule would only affect the deadline date
    for filing an appeal of the Board’s order or for filing a motion for reconsideration.
    See also
    35
    Ill. Adm. Code 101.300(d)(2).
    Next, the Fredericks note that the People failed to include mandatory language in their
    second amended complaint. The Board’s rules state that a complaint must include the following
    language:
    “Failure to file an answer to this complaint within 60 days may have severe
    consequences. Failure to answer will mean that all allegations in the complaint
    will be taken as if admitted for purposes of this proceeding. If you have any
    questions about this procedure, you should contact the hearing officer assigned to
    this proceeding, the Clerk’s Office or an attorney.” 35 Ill. Adm. Code 103.204(f).
    The Fredericks contend that People’s failure to include this language should be sufficient
    grounds to strike the second amended complaint. However, no request to strike the complaint
    has been filed. Instead, the Fredericks request that the People be barred from being granted
    summary judgment after filing a “non-conforming and misleading complaint.” Response at 3.
    The Board finds that the Fredericks’ attorney should know from his practice experience that the
    failure to answer a complaint may have severe consequences. Nevertheless, the People’s failure
    to include this language is inexcusable.
    4
    Although the Fredericks’ answer is late, the Board accepts the answer and denies the
    People’s motion to deem facts admitted and for summary judgment. Section 101.522 of the
    Board’s procedural rules provides that the Board, for good cause shown on a motion after notice
    to the opposite party, may extend the time for filing any document.
    See
    35 Ill. Adm. Code
    101.522. The Board construes the Fredericks’ response to the People’s motion as the necessary
    motion for extension of time to file their answer. There has been no showing of bad faith on
    behalf of the Fredericks in failing to file their answer by December 16, 2002. Thus, the Board
    finds that, in the interests of justice, the deadline for filing an answer is extended to December
    20, 2002.
    CONCLUSION
    Neither party in this matter has succeeded in adhering to the letter of the Board’s
    procedural rules. The parties must abide by the terms of the Board’s procedural rules. Failure to
    do so will have severe consequences.
    The People’s motion to deem facts admitted and for summary judgment is denied. The
    Fredericks’ answer is accepted into the record. The hearing officer is hereby directed to proceed
    expeditiously 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 March 20, 2003, by a vote of 7-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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