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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAY U
2003
PEOPLE OF THE STATE OF ILLINOIS,
)
STATEOFILLINOIS
Pollution
Control Board
Complainant,
vs.
)
PCB 97-69
(Enforcement
-
Air)
ECONOMY PLATING,
INC.,
an Illinois
corporation,
Respondent.
NOTICE OF FILING
TO:
Mr. Christopher Nowotarski
Bradley P. Halloran
Stone, Pogrund & Korey
Hearing Officer
221 North LaSalle Street
Illinois Pollution Control
32nd Floor
Board
Chicago, Illinois 60601
100 W. Randolph St.
Suite 11-500
Chicago,
Illinois 60601
PLEASE TAKE NOTICE that the Plaintiff,
PEOPLE OF THE STATE
OF ILLINOIS,
filed with the Illinois Pollution Control Board,
its
MOTION TO DEEM FACTS ADMITTED,
a true and correct copy of which
is attached hereto and is hereby served upon you.
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of Illinois
BY:
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau
188 West Randolph,
20th Floor
Chicago,
IL 60601
(312)
814-3816
DATED: May 22,
2003
THIS FILING IS SUBMITTED ON RECYCLED PAPER
1—
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAY 2
2
2003
STATE OF IWNOIS
PEOPLE OF THE STATE OF ILLINOIS,
)
Pollution Control
Board
Complainant,
vs.
)
PCB 97-69
(Enforcement
-
Air)
ECONOMY PLATING,
INC.,
an Illinois
corporation,
Respondent.
MOTION TO DEEM FACTS ADMITTED
Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois,
pursuant to
Section 103.204 of the Illinois Pollution Control Board
•
Procedural Rules
(“Board Rules”),
35
Ill. Adm.
Code 103.204
hereby moves for the entry of an order deeming all material facts
in Complainant’s Second Amended Complaint as admitted against
Respondent Economy Plating,
Inc.
In support thereof, Complainant
states as follows:
1.
On November 14,
2002,
Complainant filed a five-count
Second Amended Complaint against Respondent alleging violations
of Sections 9(a), (b),
and 9.1(d) (1)
of the Illinois
Environmental
Protection Act
(“Act”),
415 ILCS 5/9(a),
9(b) and 9.1(d) (1)
(l994)and
(2000),
Sections 201.143,
201.144, 201.142, 201.302,
of
the Illinois Pollution Control Board Air Pollution Regulations,
35
Ill. Adm. Code 201.143,
201.144,
201.142 and 201.302 and 40
-2-
CFR 63.342(c) (1) (ii),
40 CFR 63.343
(b)(l), and 40 CFR
63 .346(b)
(1)
and
(8),
and Special Operating Permit Conditions
1(b)
(c)
and
(h) and
5(a through
i)
of operation permit #73031926.
2.
The Second Amended Complaint in this matter differed
from the original complaint only in that Complainant added Counts
IV and V to the original Complaint.
3.
The Notice of Filing for the Second Amended Complaint
specifically stated:
“Failure to file an answer to tliis 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.”
4.
Section 103.204(d)
and
(e)
of •the Board Rules provides
as
follows:
*
*
*
d)
Except as provided in subsection
(e)
of thjs
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.
Any
facts
constituting an affirmative defense must be
plainly set forth before hearing in the answer or
in a supplemental answer,
unless the affirmative
defense could not have been known before hearing.
e)
If the respondent timely files a motion under
Section 103.212(b)
or 35
Ill. Adm.
Code 101.506,
the 60-day period to file an answer described in
subsection
(d)
of this Section will be stayed.
-3-
The stay
will begin when the motion isfiled
and
end when the Board disposes of the motion.
5.
The Board in accepting Complainant’s November 14,
2002,
Amended Complaint for hearing issued an order stating:
“Generally,
if Economy fails within that time frame to
file an answer specifically denying, or asserting
insufficient knowledge to form a belief of a material
allegation in the Complaint,
the Board will consider
Economy to have admitted the allegation.
.
.“
6.
To date, Respondent has not filed an answer to the
August
14,
2002,
amended Complaint.
7.
To date,
Respondent has not filed a motion under
Section 101.506 to stay the 60-day period in which to file an
answer.
8.
Section 103.204(d)
of the Board Rules and the Board
order of November 21,
2002,
state that all material allegations
will be taken as admitted if no answer is
filed within the time
frame set in the Board Rules.
9.
By failing to. answer Complainant’s Second Amended
Complaint by February 21,
2003,
(being very generous), by failing
to file a motion to stay the 60-day period in which to file an
answer as required by Section 103.204(e)
of 35
Ill. Adm. Code
103.204(e),
and by failing to comply with the Board’s November
21,
2002 order,
Respondent has admitted all the material
allegations asserted in Complainant’s Second Amended Complaint.
10.
Complainant therefore requests that the Board find,
pursuant to Section 103.204(d)
of
35
Ill. Adm.
Code 103.204(d),
-4-
that Respondent has admitted all material allegations asserted in
Complainant’s Second Amended Complaint.
WHEREFORE,
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board issue an order in favor of
Complainant and against Respondent Economy Plating,
Inc.
1.
Ordering all material allegations asserted in the
Complainant’s Second Amended Complaint admitted against Economy
Plating,
Inc.
2.
Granting such additional relief as the Board deems
appropriate and just.
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN, Attorney General
State of Illinois
MATTHEW
J. DUNN,
Chief
Environmental Enforcement/Asbestos
Litigation Division
ROSEMARIE CAZEAtJ,
Chief
Environmental Bureau
•
BY:
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th Flr.
Chicago, Illinois 60601
(312)
814-3816
H:\cotnmon\Environmental\Z
BEREKET-AB\ECONOMYPLATING.wpd
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CERTIFICATE OF SERVICE
I, ZEMEHERET BEREKET-AB,
an Assistant Attorney General,
do
certify that
I caused to be mailed this 22nd day of May,
2003,
the foregoing MOTION TO DEEM FACTS ADMITTED and NOTICE OF FILING
by first-class mail in a postage prepaid envelope and depositing
same with the United States Postal Service located at 100 West
Randolph Street,
Chicago,
Illinois 60601.
—
ZEMEHERET BEREKET-AB
H:\commorx\Environmental\Z BEREKET-~B\ECQNOMYPLATING
.wpd
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