2

On January 9, 2007, Halat filed and the Board received a motion to dismiss or, in the

alternative, motion for judgment on the pleadings. Stanhibel filed no response to the motion. In

an order dated March 1, 2007, the Board denied Halat’s motion to dismiss and also denied

Halat’s motion for judgment on the pleadings. Also in that order, the Board found that the

complaint is neither frivolous nor duplicative and accepted it for hearing.

On March 13, 2007, Halat filed an answer and affirmative defenses (Ans.). As

affirmative defenses, Halat alleges that “the Illinois Pollution Control Board does not have

subject matter jurisdiction over this issue” and that the Illinois Department of Natural Resources

and the Illinois Conservation Police preempt the Board’s authority over this issue. Ans. at 2,

citing 520 ILCS 5/2.37 (authority to kill wildlife responsible for damage).

On April 27, 2007, Halat filed a motion for summary judgment (Mot.). Stanhibel filed no

response to the motion.

THE COMPLAINT’S ALLEGATIONS

The complaint alleges that, during the months of August, September, and October in both

2005 and 2006 at 10214 Algonquin Road in Huntley, the respondent fired propane cannons at

regular intervals. Comp. at 3. The complaint further alleges that firing the propane cannons

caused loud popping sounds between 9:30 a.m. and 5:30 p.m. or between dawn and dusk.

Id.

The complaint further alleges that these sounds violated section 24 of the Act and Section

900.102 of the Board’s noise regulations.

Id

.;

see

415 ILCS 5/24 (2004) and 35 Ill. Adm. Code

900.102. The complaint claims that these alleged violations caused Stanhibel to experience a

headache and nervousness, prevented the complainant from enjoying the use of his own patio

and backyard in two years, and required sedation of his five-year-old dog.

Id

. at 4.

MOTION FOR SUMMARY JUDGMENT

Halat states that, on March 13, 2007, he “issued and served the Complainant with

Interrogatories, Request to Admit the Genuineness of Document (with corresponding Exhibits),

Request to Produce and Request to Admit.” Mot. at 2. Halat states that the Board’s procedural

rule addressing admission “requires the Complainant to respond to each request for admission

within twenty-eight days of the service of the Request to Admit.”

Id

.;

see

35 Ill. Adm. Code

101.618(a). Halat further notes that Section 101.618(c) of the Board’s procedural rules requires

a request to admit to include the following statement: “Failure to respond to the following

requests will result in all the facts requested being deemed admitted as true for this proceeding.

If you have any questions about this procedure, you should contact the hearing officer assigned

to this proceeding or an attorney.”

Id

., citing 35 Ill. Adm. Code 101.618(c);

see

35 Ill. Adm.

Code 101.618(f). Halat states that this required statement appeared in his request to admit. Mot.

at 2;

see

Mot., Exh. A.

Halat claims that Stanhibel’s 28-day period for responding to the request to admit ended

April 16, 2007. Mot. at 2. Halat states that, during an April 5, 2007, telephone conference with

the parties, the hearing officer advised Stanhibel that responses to Halat’s requests would be due

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3

on April 16, 2007. Mot. at 3;

see also

Stanhibel v. Halat, PCB 07-17 (Apr. 26, 2007) (Hearing

Officer Order setting May 7, 2007 deadline). Although Halat acknowledges that Stanhibel

provided answers to interrogatories on April 12, 2007, Halat argues that the answers were

insufficient and not completed under oath as required by 35 Ill. Adm. Code 101.620(b). Mot. at

3;

see

Mot., Exh C. Halat further argues that “no other discovery requests were answered or

responded to including the Request to Produce, Request to Admit the Genuineness of

Documents, and the Request to Admit.” Mot. at 3;

see

Mot., Exh B (affidavit of respondent’s

attorney). Specifically, Halat states that “[n]o response to the Request to Admit has been

received by the Attorney for the Respondent.” Mot. at 2-3.

Halat argues that “[n]o just cause has been provided by the Complainant for his failure to

comply with the discovery requests and rules.” Mot. at 3. Halat further argues that “all

paragraphs of the request are required to be deemed admitted.”

Id

., citing 35 Ill. Adm. Code

101.618(f), (i). Halat claims that, having been admitted, these facts negate the allegations in the

complaint. Mot. at 3. Halat concludes by requesting that the Board enter summary judgment in

his favor. Mot. at 3, citing 735 ILCS 5/2-1005 (2004).

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the pleadings, depositions, admissions on file,

and affidavits disclose that there is no genuine issue as to any material fact and the moving party

is entitled to judgment as a matter of law.

Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483,

693 N.E.2d 358, 370 (1998). In ruling on a motion for summary judgment, the Board “must

consider the pleadings, depositions, and affidavits strictly against the movant and in favor of the

opposing party.”

Id.

Summary judgment “is a drastic means of disposing of litigation,” and

therefore it should be granted only when the movant's right to the relief “is clear and free from

doubt.”

Id.

, citing Purtill v. Hess, 111 Ill. 2d 299, 240, 489 N.E.2d 867, 871 (1986) “Even so,

while the nonmoving party in a summary judgment motion is not required to prove [its] case, [it]

must nonetheless present a factual basis which would arguably entitle [it] to a judgment.” Sutter

Sanitation, Inc.

et al

. v. IEPA, PCB 04-187, slip op. at 9 (Sept. 16, 2004), citing Gauthier v.

Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994).

BOARD ANALYSIS

Section 101.500(d) of the Board’s procedural rules provides that, “[w]ithin 14 days after

service of a motion, a party may file a response to the motion. If no response is filed, the party

will be deemed to have waived objection to the granting of the motion, but the waiver of

objection does not bind the Board or the hearing officer in its disposition of the motion.” 35 Ill.

Adm. Code 101.500(d).

Since filing his complaint with the Board, Stanhibel has twice failed to file a response to

a dispositive motion. The record in this case is not sufficient for the Board’s full consideration

of the motion for summary judgment and does not provide an adequate basis for the Board to

determine that there exists no genuine issue of material fact and that Halat is entitled to judgment

as a matter of law. However, the record clearly shows that Stanhibel was informed of the

deadline for filing a response to the motion for summary judgment and that he was determining

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4

whether to file one. Stanhibel v. Halat, PCB 07-17 (Apr. 26, 2007) (Hearing Officer Order).

Furthermore, by operation of the Board’s procedural rules, Stanhibel is deemed to have waived

objection to the granting of Halat’s motion.

See

35 Ill. Adm. Code 101.500(d). Based on these

circumstances, the Board construes Halat’s motion for summary judgment as an unopposed

motion to dismiss. The Board grants Halat’s unopposed motion to dismiss with prejudice

without addressing the substance of the arguments in the motion for summary judgment.

CONCLUSION

Under the circumstances of this case, the Board today construes Halat’s motion for

summary judgment as an unopposed motion to dismiss and grants the unopposed motion to

dismiss with prejudice.

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2004);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520; see also 35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above order on June 7, 2007, by a vote of 4-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board