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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
)
Complainant, )
)
v. ) PCB 05-66
)
PETCO PETROLEUM CORPORATION, )
an Indiana Corporation, )
)
Respondent. )
RESPONDENT’S RESPONSE TO COMPLAINANTS MOTION TO STRIKE
OBJECTIONS TO REQUEST FOR THE ADMISSION OF FACTS
NOW COMES Respondent, Petco Petroleum Corporation, Inc. by and through its
attorneys Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., Charles J. Northrup, of counsel,
and hereby responds to, and requests the Hearing Officer to deny, Complainant’s Motion to
Strike Objections To Request For the Admission of Facts. In support, Respondent states:
I. Background
1. On or about April 12, 2005, Complainant caused to be mailed its “Request for
Admission of Facts” to Respondent. On or about May 6, 2005, Respondent filed its “Answers
and Objections to Complainant’s Request for the Admission of Facts.” Respondent objected to a
number of specific Requests primarily on grounds that the Requests were vague and called for
legal conclusions or opinions.
2. On or about July 11, 2005, Complainant filed its “Motion to Strike Objections to
Request for the Admission of Facts.”
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3. Complainants Motion takes issue with Respondent’s characterization of certain
terms as vague and calling for opinions or conclusions of law. These terms are: “discolored,”
“turbid,” “affected,” “impacted,” “unnatural bottom deposits,” and “suspended precipitate.”
II. Argument
4. As an initial argument, and the only argument for which case law is referenced,
Complainant refers to the distinction between “ultimate facts” and “conclusions of law.” The
cases cited generally support the notion that there is a difference between these two categories of
requested admissions. However, this case law is not helpful in this case. Respondent’s
objections are not primarily objections calling for distinguishing “ultimate facts” from
“conclusions of law.” Rather, Respondent’s objections, particularly as to vagueness, are
objections based upon the absence of discernable or identifiable facts.
A “fact” is defined as “a piece of information presented as having objective reality”
(Merriam-Webster Online Definition 2005) or, alternatively, something that is “true and
accurate” (The American Heritage Dictionary, Office Edition, 1983). Merely pronouncing
something as “discolored,” “unnatural,” “impacted,” “affected,” or “turbid” does not establish
the precision of definition required to be considered “objective reality” or accurate. Conversely,
these terms are clearly vague in that they have no “precise meaning” (Merriam-Webster Online
Dictionary 2005, definition of “vague”). As an example, if the Complainant wanted to establish
facts related to discoloration, Complainant should have identified facts such as the water was
blue or green or orange. These are facts that can be admitted. These are facts like the time and
place of reported releases for which Complainant has requested admissions and which
Respondent has admitted. Complainant’s attempt to have Respondent admit as a legal matter
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that water was “discolored” or “turbid” or “impacted” or “affected” interposes too much
subjectivity and lacks the “objective reality” necessary to establish a fact.
“Unnatural Bottom Deposits”
5. Here too, the use of the term “unnatural bottom deposits” as vague, and calling for
an opinion and/or conclusion of law, was properly objected to. What is or is not an “unnatural
bottom deposit” is not a
fact
that can be admitted. A fact would be the identification of what the
unnatural bottom deposit is, whether it be animal, vegetable or mineral. No where is the term
“unnatural bottom deposit” identified or explained. The term has no “objective reality” to make
simply saying it exists as a
fact
. It is, more accurately an opinion as to the condition of the
particular waterway.
“Suspended Precipitate”
6. No where in the Request to Admit, the Act or the regulations is the term
“suspended precipitate” defined. In the absence of such definition, it has no objective meaning.
It is vague because it is subject to varying definitions. In addition, and in good faith, Respondent
acknowledged the presence of a black substance on the bottom of the creeks in question (Ans. &
Obj. par. 9). That is a fact that can be admitted. Respondent merely, and correctly, objected to
that portion of the Request that sought to give the objective characterization some unknown and
undefined meaning.
Ada Clow Sump Flooding Relevancy
7. Upon review and reconsideration of this particular Request related to prior
flooding at the Ada Clow Sump, Respondent will withdraw its objection and respond consistent
with the Hearing Officer’s Order resolving this Motion.
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8. It should also be noted that Complainant has not moved to strike Respondents
vagueness objections with respect to such terms as “typical” and “large” (See Ans. & Obj., par.
1). These terms, however, are analogous as such terms as “discolored”, “turbid”, “affected” or
“impacted.” Complainant’s decision not to object to these terms and the consequential
admission that such terms are not objectionable should be an indication to the Hearing Officer
that even Complainant concedes the vagueness of the objectionable terms.
III. Conclusion
WHEREFORE, Respondent respectfully requests that the Hearing Officer deny
Complainant’s Motion to Strike Objections to Request for the Admission of Facts.
Respectfully submitted
PETCO PETROLEUM CORPORATION,
Respondent
s/ Charles J. Northrup _____________________
One of Its Attorneys
Sorling, Northrup, Hanna,
Cullen & Cochran, Ltd.
Charles J. Northrup, of Counsel
Suite 800 Illinois Building
P.O. Box 5131
Springfield, IL 62705
Telephone: (217) 544-1144
Facsimile: (217) 522-3173
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PROOF OF SERVICE
The undersigned hereby certifies that the foregoing document was electronically filed
with the Illinois Pollution Control Board:
and one copy to:
Ms. Carol Webb
Hearing Office
Illinois Pollution Control Board
1021 North Grand Ave. East
Post Office Box 19276
Springfield, IL 62794-9274
Thomas Davis, Chief
Environmental Bureau
Office of the Attorney General
500 South Second Street
Springfield, IL 62706
and by depositing same in the United States mail in Springfield, Illinois, on the ___ day of July,
2005, with postage fully prepaid.
/s/Charles J. Northrup ____________________
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