~i’~
    CE~VED
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    ~
    ~
    ~
    PEOPLE OF THE STATE OF ILLINOIS,
    )
    JUL
    ~ 1
    ;?003
    Complainant,
    51AI~OF ILLINOIS
    Pollution
    Control
    Board
    v.
    )
    No.
    PCB 03-51
    (Enforcement
    -
    Air)
    DRAW DRAPE CLEANERS,
    INC.,
    an
    Illinois
    corporation,
    Respondent.
    NOTICE
    OF
    FILING
    To:
    See attached service list.
    PLEASE TAKE NOTICE that the Complainant,
    PEOPLE OF THE STATE
    OF ILLINOIS,
    filed with the Illinois Pollution Control Board,
    its
    MOTION FOR LEAVE TO FILE A REPLY and its REPLY TO RESPONDENT’S
    RESPONSE TO COMPLAINANT’S MOTION FOR PARTIAL SUNMARY JUDGMENT
    true and correct copies of which are attached hereto and are
    hereby served upon you.
    PEOPLE OF THE STATE OF ILLINOIS
    ex rel.
    LISA MADIGAN, Attorney
    General of the State of
    Illinois
    BY:
    _________
    JOEL J.
    STERNSTEIN
    Assistant Attorney General
    Environmental Bureau
    188 West Randolph, 2O~Floor
    Dated:
    July 31,
    2003
    Chicago,
    IL 60601
    (312)
    814-6986
    SERVICE
    LIST
    Ms. Michele Rocawich,
    Esq.
    Weissberg and Associates,
    Ltd.
    4D1
    S. LaSalle St.,
    Suite 403
    Chicago, Illinois
    60605
    Ms. Maureen Wozniak,
    Esq.
    Illinois Environmental Protection Agency
    1021 North Grand Avenue East
    P.O. Box 19276
    Springfield,
    Illinois
    62702
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    ~
    ~
    PEOPLE OF THE. STATE OF ILLINOIS,
    )
    JUL
    3
    1
    2003
    Complainant,
    )
    STATE
    OF ILLINOIS
    Pollution
    Control Board
    v.
    )
    No.
    PCB 03-51
    (Enforcement
    -
    Air)
    DRAW DRAPE CLEANERS,
    INC.,
    an Illinois corporation,
    Respondent.
    COMPLAINANT’S
    MOTION FOR LEAVE TO FILE A REPLY
    Complainant,
    PEOPLE OF THE STATE OF ILLINOIS,
    ex rel.
    LISA
    MADIGAN, Attorney General of the State of Illinois,
    pursuant to
    Section 101.500(e)
    of the Illinois Pollution Control Board’s
    (“Board”)
    Regulations,
    35
    Ill. Adm.
    Code 101.500(e),
    requests
    that the Board grant it leave to file a Reply to Respondents’
    Response to Complainant’s Motion for Partial Summary Judgment,
    which Respondents filed on July 18,
    2003.
    Complainant contends
    that
    it
    is filing its Motion for Leave to File a Reply in a
    timely manner and that
    it will suffer material prejudice
    if the
    Board does not grant it leave to file a Reply.
    Respectfully submitted,
    PEOPLE OF THE STATE OF ILLINOIS
    ex rel.
    LISA
    MADIGAN,
    Attorney
    General of the State of Illinois
    MATTHEW J. DUNN,
    Chief
    Environmental Enforcement/Asbestos
    Litigation DivisiOn
    ROSEMARIE CAZEAU,
    Chief
    Environmental Bureau
    BY:
    JOEL STERNSTEIN
    Assistant Attorney General
    Environmental Bureau
    188 West Randolph,
    20th
    Floor
    Chicago,
    IL 60601
    (312)
    814-6986
    BEFORE THE ILLINOIS POLLUTION CONTROL
    BOAR~~~~
    PEOPLE OF THE STATE OF ILLINOIS,
    )
    JUL
    3
    1
    2003
    Complainant,
    )
    STA’CEOF ILLINOIS
    Pollution
    Control
    Board
    v.
    )
    No.
    PCB 03-51
    (Enforcement
    -
    Air)
    DRAW DRAPE CLEANERS,
    INC.,
    an Illinois corporation,
    Respondent.
    COMPLAINANT’S REPLY TO
    RESPONDENT’S
    RESPONSE TO COMPLAINANT’S
    MOTION FOR PARTIAL SU1~dM~RY
    JUDGMENT
    Complainant,
    PEOPLE OF THE STATE OF ILLINOIS,
    ex rel.
    LISA
    MADIGAN, Attorney General of the State of Illinois, replies to
    Respondent Draw Drape Cleaners’ Response to Complainant’s Motion
    for Partial Summary Judgment.
    In support of its reply,
    Complainant states as follows:
    INTERROGATORY AS AN AFFIDAVIT
    Contrary to Respondent’s assertions
    in its Response to
    Complainant’s Motion for Partial Summary Judgment
    (“Response”),
    Complainant did not offer unsworn and unverified statements in
    its Motion for Partial Summary Judgment
    (“Motion”)
    .
    Complainant
    cited to Respondent’s sworn answers to interrogatories.
    Supreme
    Court
    Rule. 213(h)
    states that ~answers
    to interrogatories may
    be used in evidence to the same extent as a discovery
    deposition.”
    A discovery deposition, according to Supreme Court
    Rule 212(a) (4)
    may be used ufor any purpose for which an
    affidavit may be used.T’
    Therefore, an answer to an interrogatory
    1
    may be treated as an affidavit for purposes of a motion for
    summary judgment.
    Komater v.
    Kenton Court Assoc.,
    151 Ill.App.3d
    632,
    637;
    1502 N.E.2d 1295,
    1298
    (2d Dist.
    1986)
    Supreme Court Rule 216(a)
    permits a party to request an
    admission of
    “the truth of any specified relevant fact.”
    Requests to admit are designed to limit the issues at trial and
    to remove admitted facts from contention..
    Ellis v. American
    Family Mutual Insurance Co.,
    322 I1l.App.3d 1006,
    1010,
    750
    N.E.2d
    1287,
    1290
    (4th Dist.
    2001)
    .
    Admissions made pursuant to
    a request to admit are considered judicial admissions and are
    binding upon the party making them.
    ~.
    Summary judgment is
    appropriate when the pleadings,
    depositions,
    admissions on file,
    and affidavits disclose there is no genuine issue as to any
    material faOt and the moving party is entitled to judgment as a
    matter of law.
    Dowd & Dowd,
    Ltd.
    v. Gleason,
    181 Il1.2d 460,
    483,
    693 N.E.2d 358,
    370
    (1998).
    Complainant appropriately used
    Respondent’s admissions of facts and answers to Complainant’s
    interrogatories
    in its Motion.
    COUNTS IV AND V
    Respondent contends that because Dryer #2 was identical to
    Dryer #1 and that Respondent had a permit to rebuild,
    it believed
    that Dryer #2 was operating in compliance with the Illinois
    Environmental Protection Act
    (“Act”)
    .
    As Complainant stated in
    its Motion,
    Sections 201.142 and 201.143
    of the Illinois
    2
    Pollution Control Board
    (“Board”) Air Pollution Regulations,
    35
    Ill. Adm. Code 201.142 and 201.143, provide that no person shall
    construct and operate any new emission source without first
    obtaining an operating permit from the Agency.
    As stated in the Motion,
    Dryer #2
    is
    a “new emission source”
    because
    it is capable of emitting VOM.
    Respondent admitted,
    as
    noted in Complainant’s Motion,
    to constructing and operating
    Dryer #2 without first obtaining permits from the Agency.
    Respondent can not hide behind its assertion that it believed
    Dryer #2 was operating in compliance with the Act.
    It
    is well
    known that
    “a defendant
    is presumed to know the law and that
    ignorance of the law is no excuse.”
    People v. Acosta,
    331
    I11.App.3d
    1,
    6;
    768 N.E. 2d 746,
    751
    (2d Dist.
    2001);
    People v.
    Terneus,
    239 I11.App.3d 669,
    672;
    607 N.E.2d 568,
    570
    (4th Dist.
    1992)
    COUNT VII
    Respondent maintains that a recovery dryer in the proper
    size was unavailable.
    As Complainant pointed out in its Motion,
    Sections 60.620-60.625 of Title 40 of the Code of Federal
    Regulations,
    40 C.F.R.
    60.20-60.625, requires that all dryers
    installed after December 14,
    1982 must be solvent recovery
    dryers.
    The unavailability of a proper sized dryer does not
    excuse Respondent from abiding by the law.
    3
    COUNT VIII
    Respondent states that it did not perform an admissions test
    because no commercial emissions test was available at the time.
    Asexplained in the Motion,
    a commercially available test was not
    necessary.
    Respondent could have performed the test as outlined
    in Section 60.624 of Title 40 of the Code of Federal Regulations,
    40 C.F.R.
    60.624, with a,graduated cylinder,
    a stopwatch, pen and
    paper, knowledge of simple arithmetic, and time to measure every
    other dryer load for two weeks.
    Respondent’s possession of a
    Federally Enforceable State Operating Permit
    (FESOP)
    does not
    excuse its failure to perform the test.
    Respondent failed to
    perform the test by its own admission and thereby violated the
    Act and. the Code of Federal Regulations.
    CONCLUSION
    WHEREFORE,
    for the foregoing reasons, Complainant
    respectfully requests the Board to:
    1.
    Enter an order granting summary judgment for
    Complainant and against Respondent for Counts IV,
    V,
    VII, and
    VIII in the Complaint;
    2.
    Order that Respondent is liable for penalties for
    violations of the Act, the Board Air Pollution Regulations, and
    the Code of Federal Regulations;
    3.
    Assess the Attorney General’s fees and costs
    in this
    case against Respondent; and
    4
    4.
    Order any other relief it deems just and appropriate.
    Respectfully submitted,
    PEOPLE OF THE STATE OF ILLINOIS
    ex
    rel.
    LISA MADIGAN, Attorney
    General of the State of Illinois
    MATTHEW J. DUNN,
    Chief
    Environmental Enforcement/Asbestos
    Litigation Division
    ROSEMARIE CAZEAU,
    Chief
    Environmental Bureau
    BY:
    ________
    JOEL STERNSTEIN
    Assistant Attorney General
    Environmental Bureau
    188 West Randolph,
    20th
    Floor
    Chicago,
    IL 60601
    (312)
    814-6986
    5
    CERTIFICATE
    OF SERVICE
    I,
    JOEL J.
    STERNSTEIN,
    an Assistant Attorney General,
    do
    certify that
    I caused to be mailed this
    318t
    day of July 2003,
    the foregoing COMPLAINANT’S MOTION FOR LEAVE TO FILE A REPLY and
    COMPLAINANT’S REPLY TO RESPONDENT’S RESPONSE TO COMPLAINANT’S
    MOTION FOR PARTIAL
    SUMMARY
    JUDGMENT 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.
    j~QI’
    ~
    JOEL J. STERNSTEIN

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