Complainant
V.
Respondent
)
JUN
302003
STATE OF ILLINOIS
Pollution
Control Board
PCB 97-69
(Enforcement
-
Air)
NOTICE
OF
FILING
TO:
Mr. Christopher Nowotarski
Stone, Pogrund & Korey
221 North LaSalle Street
32uid
Floor
Chicago,
Illinois 60601
Bradley
P.
Halloran
Hearing Officer
Illinois Pollution
Control Board
100 West Randolph St.
Suite 11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that
I have today filed with the Illinois
Pollution Control Board a Motion For Summary Judgment and a
Certificate of Service on behalf of the Illinois Environmental
Protection Agency,
a copy of which is attached and herewith
served upon you.
Date:
•June 30,
2003
BY:
LISA
MADIGAN
Attorney General
State of Illinois
ZEMEHERET BEREKET-AB
Assistant Attorney General
188 West Randolph Street
20th Floor
Chicago,
IL
60.601
(312)
814-3816
PEOPLE OF THE STATE OF ILLINOIS,
~..
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S OFFICE
ECONOMY PLATING,
INC.,
an Illinois
corporation,
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
JUN20
2
PEOPLE OF THE STATE OF ILLINOIS,
STATEOF ILLINOIS
Complainant,
)
Pollutj0~Control
Board
v.
)
PCB
97-69
(Enforcement
-
Air)
ECONOMY PLATING,
INC.,
an Illinois
corporation,
Respondent,
MOTION FOR
SUMMARY
JUDGMENT
The Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by and
through LISA MADIGAN, Attorney General of the State of Illinois,
moves the Pollution Control Board
(“Board”),
for the entry of an
order of summary judgment in favor of the Complainant and against
the Respondent,
ECONOMY PLATING,
INC.,
on Counts
I through V of
the Second Amended Complaint,
pursuant to Section 101.516
of the
Board Procedural Rules,
35 Ill. Adm. Code 101.516.
In support of
its motion,
Complainant states as follows:
1.
On June 19,
2003,
the Board issued the following order:
“The Board therefore grants the People’s motion to deem facts
admitted.
Accordingly,
the Board deems admitted the material
allegations alleged in the second amended complaint and directs
the parties to hearing.”
(“Exhibit A”)
2.
Section 101.516(b)
of the Board Procedural Rules,
35
Ill. Adm. Code 1.01.516(b), provides
as follows:
If the record,
including pleadings,
depositions and
admissions on file,
together with any affidavits,
shows
that there is no genuine issue of material fact,
and
that the moving party is entitled to judgment as a
matter of
law,
the Board will enter summary judgment.
35 Ill. Adm.
Code 101.516(b)
3.
Since the Board in its June 19,
2003, Order has found
that Respondent,
Economy Plating,
Inc., has admitted all the
material allegations alleged in the second amended complaint, the
record shows that there is no genuine issue of material fact
remaining for review.
Therefore, Complainant
is entitled to
judgment as a matter o~flaw.
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.
Granting an order of summary judgment in favor of
Complainant and against the Respondent on Counts
I through V of
Complainant’s Second Amended Complaint;
2.
Finding that Respondent violated Sections 9(a),
9(b),
and 9.1(d) (1) (2002)
,
and Sections 201.142,
201.143, 201.144 and
201.302 of 35
Ill. Adm. Code 201.142,
201.143,
201.144,
and
201.302;
3.
Ordering the Respondent to cease and desist from
further violations of the Act and Board Air Pollution Regulations
cited above;
4.
Assessing against the Respondent
a civil penalty of
Fifty Thousand Dollars($50,000.00)
for each violation of the Act
and Board Air Pollution Regulations,
and an additional civil
penalty of Ten Thousand Dollars
($10,000.00) per day for each day
the violation continued;
5.
Granting such as other 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 CAZEAU,
Chief
ENVIRONMENTAL BUREAU
BY:
_____________
ZEMEHERET BEREKET-AB
Assistant Attorney General,
Environmental Bureau
188 West Randolph Street,
~
FL
Chicago, Illinois 60601
(312)
814-3816
ILLINOIS POLLUTION CONTROL BOARD
June
19, 2003
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
V.
).
P03
97-69
)
(Enforcement
-
Air)
ECONOMY PLATING, INC., an Illinois
)
corporation,
)
)
Respondent.
)
ORDER OF THE BOARD (byN.J. Melas):
On May 22, 2003, the Office ofthe Attorney General, on behalf ofthe People ofthe State
ofIllinois (People), filed a motion to deem facts admitted in this enforcement action (Mot.).
For
the reasons below, this order grants the People’s motion.
BACKGROUND
On October 10,
1996, the People filed a three-count complaint against Economy Plating,
Inc. (Economy).
See 415
ILCS
5131(c)(1)
(2002).
The People allege that Economy violated.
Sections 9(a) and
(b) ofthe Environmental Protection Act
(Act) and Sections 201.143, 201.302,
201.144, 254.102(c), 254.402, and 301.142 ofthe Board’s air pollution regulations.
415
TLCS
5/9(a)
and (b); 35111. Adm~Code 201.143, 201.302, 201.144, 254.102(c),
254.402, and 301.142.
The People further alleged that Economy violated these provisions by operating equipment
without a permit, constructing a tank and a fume scrubber without a permit, and failing to file
annual reports.
The People filed an amended complaint on August
12, 2002, containing a total offive
counts and alleging additional violations ofSections 9(b) and 9.1(d)(1) ofthe Act based on
Economy violating federal regulations and certain conditions ofits
special operating permit.
415
ILCS
5/9(b)
and 9.1(d)(1) (2002).
Both the complaint and the amended complaint concern
Economy’s electroplating facility located at 2350 N. Biston Avenue, Chicago, Cook
County.
The Board did not accept the People’s amended complaint forhearing due to several
errors.
On November 14,
2002, the People filed a second amended complaint alleging the same
‘violations and correcting all errors.
On November 21, 2003,
the Board accepted Economy’s amended complaint forhearing.
See
35111. Adm.
Code 103.212(c).
The Board noted that Economymust answer the complaint
within 60 days after receiving the complaint,
and directed the hearing officer to proceed to
hearing.
The People filed a motion to deem the facts alleged in the second amendedcomplaint
admitted on May 22,
2003.
The People did not file a motion for summaryjudgment on the
EXHIBIT
2
violations.
Economy did not respond to the People’s motion
to
deem facts admitted, but did file
a motion for leave to file an answer, attaching an answer, on June 3, 2003.
THE BOARD’S PROCEDURAL RULES
Section
103.204(d) of the Board’s procedural rules for enforcement actions provides
in part:
Except as provided in subsection (e) ofthis Section, the respondent may
file an answer within 60 days after receipt ofthe 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) of Section 103.204 states that the 60-day period to file an. answerwill be
stayed if a respondenttimely, files a motion attacking the sufficiency of.the complaint under
Section
101.506 ofthe Board rules.
35 Ill. Adm. Code 103.202(e);
see also
35
111. Adm. Code
101.506
Section
103.204(f) provides:
Anyparty serving a complaint upon another party must include the
following language in thenotice:
“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 willbe taken as
if admitted forpurposes ofthis proceeding.
Ifyou 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).
MOTION TO
DEEM FACTS ADMITTED
The People contend that the Board must deem factual allegations in the second amended
complaint admitted for two reasons:
(1) Economy did not filed an answer to
the second amended
complaint until well after the 60-day deadline; and (2) Economyhas not filed a motion staying
the 60-day period.
Mot. at 4.
The People ask the Board to find that Economyhas admitted all
material
allegations asserted in the second amended complaint.
In its June 3, 2003 motion for leave to file an answer, Economy admits that it did receive
thePeople’ssecond amended complaint filedNovember 14,
2002.
Economy claims that it
prepared an answer to the complaint but failed to file it.
Economy argues the Board
should
.
.•
accept the answerbecause no prejudicewill occur to the People.
Both the second amended complaint and the Board’s order accepting it for hearing
explained the consequences offailing to answer the complaint.
35
Ill. Adm. Code 103.204(f).
—~,-
.~
3
Economy received the second amended complaint but never filed a motion challenging the
complaint, which mayhave stayed the 60-day period for filing an answer.
Economyis more
than five months late in filing an answer.~The
Board therefore grants the People’s motion to
deem facts admitted.
Accordingly, the Board deems admitted the material allegations alleged in
the second amended complaint and directs the parties to hearing.
IT IS SO ORDERED.
.
I, DorothyM.. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on June 19, 2003, by a vote of6-0.’
DorothyM. Gunri, Clerk
.
.
Illinois Pollution Control Board
CERTIFICATE
OF SERVICE
I,
ZEMEHERET BEREKET-AB,
an Assistant Attorney General, do
certify that
I caused to be mailed this
30TH
Day of June
,
2003,
the foregoing MOTION FOR SUMMARY JUDGMENT 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.
WLk444~
ZEMEHERET BEREKET-AB
H:\comrnon\Environmental\Z BEREKET-AB\ECONOMYPLATING.wpd
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