BEFORE THE POLLUTION CONTROL BOARD
OF THE
STATE
OF ILLINOIS
VOGUE TYRE & RUBBER COMPANY,
V.
Petitioner,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Jeffrey E. Schiller
Schuyler, Roche & Zwirner
One Prudential Plaza
Suite 3800
130 East Randolph Street
Chicago, IL
60601
Respondent.
)
)
)
PCBNo.96-10
)
(UST Appeal)
)
)
NOTICE
CLE~ç~
OFPi~
OCT
1
&
2003
STATE OF ILLINOIS
Po!lutj0~ControJ Board
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, IL
60601
ILLINOIS
Re~
PLEASE
TAKE NOTICE
that
I have
today filed
with the
office of the
Clerk of the
Pollution
Control Board
a MOTION FOR RECONSIDERATION, copies ofwhich are herewith served upon you.
Respectfully submitted,
AGENCY,
Assistant
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box
19276
Springfield,
illinois 62794-9276
217/782-5544
217/782-9 143 (TDD)
Dated: October
14, 2003
BEFORE
THE POLLUTION CONTROL BOARD
OF THE
STATE OF ILLINOIS
VOGUE TYRE & RUBBER COMPANY,
)
CLERi’S
Oppj~
Petitioner,
)
(~1’~T
v.~
)
PCB No. 96-10
~‘
1
~ 2003
ILLINOIS ENVIRONMENTAL
)
(UST Appeal)
STATE
Oiz~
ILLINOI
PROTECTION AGENCY,
)
PoIIutj0~
Control BoQrd
Respondent.
)
MOTION FOR RECONSIDERATION
NOW COMES
the Respondent, the Illinois
Environmental Protection Agency
(“Illinois
EPA”),
by one of its
attorneys,
John J. Kim,
Assistant
Counsel
and
Special
Assistant
Attorney
General, and, pursuant to
35
Ill.
Adm.
Code
101.520
and
101.902,
and by motion
filed no
later
than
35
days following
the receipt of the order
entered
by the
Illinois Pollution
Control Board
(“Board”) on September 4, 2003,
hereby respectfully moves the Board to reconsider that order in
that the Board
erred in its
decision.
The Illinois
EPA received service of the Board’s order. on
September 8, 2003.
In support ofthis motion, the Illinois EPA states as follows:
I.
STANDARD
FOR REVIEW
The purpose ofa motion for reconsideration is to bring to the court’s or Board’s attention
newly-discovered
evidence which
was not
available
at the time of the hearing, changes
in
the
law, or errors in the court’s or Board’s previous
application ofthe existing law.
Vogue Tyre
&
Rubber Company v.
Office of the
State Fire
Marshal, PCB
95-78
(January 23,
2003), citing
to,
Citizens Against
Regional Landfill
v.
County Board of Whiteside County,
PCB
93-156
(March
11,
1993), ~
Korogluyan v.
Chicago Title & Trust Co., 213
Ill. App.
3d
622,
572
N.E.2d 1154
(1st
Dist.
1992).
Here,
the
Illinois
EPA
argues that
the Board
incorrectly applied
its
procedural
rules
in
reviewing the Respondent’s motion
for summaryjudgment, and that in fact no further filings are
needed in order for the Board
to
render a decision in this
case.
There is
a sufficient record from
which
the Board may enter a decision on the merits of the Illinois
EPA’s
motion for summary
judgment and
Vogue Tyre &
Rubber Company’s (“Vogue Tyre”) response.
1
II.
BACKGROUND
This
appeal
stems
from
a decision
issued
by
the
Illinois
EPA dated
June
15,
1995,
in
which
the Illinois
EPA
determined that
remediation
conducted
at the site in
question
was
not
subject to
regulation pursuant to
Parts 731
or 732 of the Board’s regulations
(35
Ill.
Adm.
Code
Parts
731
and
732).
On
February
1,
2002,
following
a
long
history
of the Petitioner
filing
motions
to
stay the proceedings, the Illinois EPA filed a motion to dismiss
the appeal for a lack
of prosecution.
On March
7, 2002, the Board issued an
order denying the motion
to
dismiss but
directing the Petitioner to provide a date certain by which a related federal proceeding would be
resolved.
The Board
further directed the Hearing Officer to
schedule a
hearing if no
such date
could be provided.
Since that time,
a hearing in
this
matter has yet to
be scheduled.
However, the parties,
through discussions with the Hearing Officer, decided that the matter could be resolved through
the filing of a motion for summaryjudgment.
Thus the Illinois EPA filed a motion for summary
judgment, and the Petitiofler, Vogue Tyre & Rubber Company (“Vogue Tyre”), filed a response.
On September
4,
2003,
the
Board
entered
an order
in
this
matter, having considered a
motion
for summary judgment
filed by
the Respondent
and
a response
filed by the Petitioner.
The Board
concluded that the record before the Board
at the
time
included the original petition
filed
by
Vogue
Tyre,
the
Illinois
EPA’s
motion
for
summary judgment,
and
Vogue
Tyre’s
response.
The
Board
noted
that
none
of
the
pleadings
were
accompanied
by
affidavits
supporting
the facts therein,
and
therefore the Board denied the motion for summaryjudgment
because the
record did
not
include
sufficient
facts for the
Board
to
determine that
the Illinois
EPA was entitled
to judgment
as a
matter of law.
Vogue Tyre
&
Rubber
Company v.
Illinois
~
PCB 96-10 (September 4,
2003).
III.
THERE IS A SUFFICIENT
RECORD BEFORE
THE
BOARD
TO RULE UPON
THE MOTION FOR SUMMARY JUDGMENT
AND
RESPONSE
In
its
order
dated
September
4,
2003,
the
Board
stated that
there was
an
insufficient
record before it to determine whether or not the Illinois
EPA is
entitled to
judgment as a matter
2
oflaw.
The Board noted that no affidavits had been filed with the motion for summaryjudgment
or response that would otherwise support the facts therein.
The Board therefore
concluded that it
was unable
to reach a decision on the merits ofthe motion and response.
A.
The Board’s Procedural Regulations Do Not Require That Affidavits
Must Accompany Motions For Summary Judgment
In the September 2003
order,
the Board cited
to
Section
10 1.504
of its procedural
rules
(35
III. Adm.
Code
101.504) when noting that none of the pleadings had
been accompanied
by
affidavits supporting the facts included in the pleadings.
Section
101.504 provides:
All
motions and responses must
clearly state the grounds upon
which the motion
is
made and
must
contain
a
concise
statement of the position or
relief sought.
Facts
asserted that are not ofrecord in the proceeding must be supported by oath,
affidavit, or certification in
accordance with
Section
1-109 of the
Code of Civil
Procedure 735
ILCS
5/1-109.
A briefor memorandum in support ofthe motion
or response may be included.
A
plain
reading of Section
101.504
shows
that
there
is
no
requirement that
affidavits
must
accompany
all
motions or responses filed before the Board.
Rather, the section states
that
any
facts asserted that are
not ofrecord
must be supported by,
r alia, an affidavit.
That
interpretation
is
consistent
with
Illinois
law.
Under
Illinois
law,
a
motion
for
summary judgment
may be filed at
any
time.
Bank of Waukegan
v.
Epilepsy Foundation
of
America,
163
Ill. App. 3d
901,
905,
516
N.E.2d
1337,
1339
(2nd
Dist.
1987).
Further,
a party
may
file
a
motion
for summary judgment
with
or without
supporting
affidavits.
American
Buyers Club ofMt. Vernon, Illinois, Inc. v.
Zuber, 57 Ill. App. 3d
899, 900,
373
N.E.2d 786, 788
(5th
Dist.
1978).
Thus
in
this
case,
the
question
is
whether
the
facts
asserted
in both
the
motion
for
summary judgment and the response are otherwise found in the record.
Of course, that begs the
question ofwhat “of record” is.
In this
case, clearly the record before the Board is made up of
the pleadings filed thus far.
3
B.
The Record Consists Of The Pleadings Filed
To Date
The Illinois
EPA has not
filed the administrative record of its
decision with the Board
to
date.
However, there is
sti.ll a record that exists
in this case, consisting ofthe pleadings that have
been filed to
date.
Aside from numerous motions to stay, the record thus consists ofthe Petition
for Review (“Petition”) filed by Vogue Tyre on July
18,
1995,
the motion
for summaryjudgment
filed by the Illinois
EPA, the response to that motion filed by Vogue Tyre,
and orders entered by
the Board and the Hearing Officer.
As
can
be
seen
by
the
motion
for
summary judgment,
all
factual
matters
contained
therein were taken from the Petition, with page numbers to the Petition included.
As
the Illinois
EPA stated in the motion, neither party contests that the tanks in question were removed in
1986,
the
sole
fact upon
which
the
Illinois
EPA based
its
denial
of Vogue Tyre’s
reports.
Illinois
EPA’s Motion, p.
3.
C.
The Illinois
EPA And Vogue Tyre Are In Agreement On
All
Relevant
Facts
Looking
to
the
response filed by
Vogue Tyre,
the statement
is
made that
the essential
facts
that are pertinent
to
the case are not
in dispute.
Vogue Tyre’s
Response,
p.
1.
Both
the
Petitioner and the Respondent in this case are in total agreement on the relevant facts upon which
the
Illinois
EPA
issued
its
decision
under
appeal;
the
only
disagreement
is
to
whether
the
application ofthe law to those uncontested facts was correct.
The Illinois
EPA did
not
contest the
facts
contained within the Petition.
Rather, those
facts were recited back in the motion for summary judgment.
Also, the Illinois EPA has not filed
any other pleading
that
is
in
any other way responsive
to
the Petition.
Therefore,
the Illinois
EPA has admitted the well-pleaded facts in the Petition.
Bank ofWaukegan,
163 Ill.
App. 3d
at
905,
516
N.E.2d ar 1339.
Therefore, taking into account the statements made by both parties in
4
the motion
for summary judgment
and
the
response,
from
both
the perspective of the
Illinois
EPA
and
Vogue
Tyre,
there
is
no
dispute of any of the
facts
relevant
to
the
decision
under
appeal.
That said, the Board should have proceeded to a review and decisiori on the merits ofthe
Illinois
EPA’s motion.
When ruling upon a motion
for summaryjudgment,
it is
not the court’s
function
to
resolve
a
disputed
factual
question,
but
rather
to
determine
whether
one
exists.
Stonitsch
v.
Laredo Construction
Company,
221
Ill.
App. 3d
902,
905,
583
N.E.2d 49,
52
(15t
Dist.
1991).
The Board
has not
identified any
question as to
whether a
factual dispute exists,
only
that
there are
insufficient facts
upon
which it may determine whether
a
decision can
be
issued.
The
Illinois
EPA has
already
established that there
is
no
requirement that
motions for
summaryjudgment have an accompanying affidavit, and therefore
the Board should
look to
the
otherpleadings to
see whether facts can be gleaned upon which a decision maybe reached.
The Petition
filed by
Vogue
Tyre
contains all
the facts relevant
to
the decision under
appeal,
and all
the facts necessary to
review and decide upon the motion for summaryjudgment.
The Illinois
EPA effectively admitted to
those
facts and
included citations thereto in
its motion
for summary judgment.
Vogue Tyre then responded that it agreed there was no dispute as to
any
relevant facts.
Simply put, there is
no
fact in dispute to which the Board can point that remains
as an obstacle to
the Board rendering a decision in this long-pending matter.
Particularly
instructive
on
this
issue
is
the
case
of Metropolitan
Sanitary District
of
Greater Chicago
v.
Pontarelli
&
Sons,
Inc,~,7 Ill. App.
3d
829, 288 N.E.2d
905
(1st
Dist.
1972).
In Pontarelli, the appellate
court
stated that
the purpose of summary judgment
is
to
determine
whether there is
a genuine issue of fact involved in the
case.
Ordinarily issues are made up by
the pleadings.
From
an
inspection of the pleadings,
the court
can determine
whether or not
a
factual issue
is raised.
On summaryjudgment proceedings, the court considers the pleadings, the
5
•1
affidavits
and
the
entire record to
determine whether or not it can be said
that a material dispute
exists
as
to
the
facts.
If
no
answer
or
responsive
pleading
is
filed
to
a
complaint,
then
uncontradicted
allegations. must
be
taken
as
true.
Pontarelli,
7
III.
App.
3d
at
838-839, 288
N.E.2d at 911.
Based
on
the
statements
by
the
Illinois
EPA
and
Vogue
Tyre, the
Board
should
have
concluded
that
there was
no
material
fact
in
dispute.
There
is
no
requirement that an
affidavit
accompanies a motion for summary judgment,
and
in this instance the Illinois
EPA’s recitation
of the
relevant
facts
(and
Vogue
Tyre’s
subsequent
agreement
as
to
those
facts)
was
taken
straight
from
the Petition
itself.
All
those
documents were
before the Board
at the time of its
September
2003
decision.
The
Illinois
EPA respectfully argues
that
it
was
erroneous
of the
Board to conclude that affidavits were necessary, when the parties in their pleadings agreed as to
the pertinent facts.
IV.
CONCLUSION
The
Board’s conclusion
in
the
September
4,
2003
decision
was
in
error,
since
it was
premised on
several bases that were
inconsistent with
the Board’s procedural
rules and
Illinois
law.
The Board indicated that without supporting
affidavits, it was unable to
ascertain whether
or not a
dispute of any material
facts existed.
The Board’s procedural rule does not require an
affidavit to
accompany a motion for summary judgment, but rather does require an affidavit for
any matters
that
are not of record.
Here,
the record before the Board
consisted
in part of the
Petition,
motion
for summary judgment,
and
response.
Through those three documents,
it was
clearly established that the parties were not in dispute as to
any of the material facts ofthe case.
The Illinois
EPA respectfully argues that the Board should have concluded that the record before
it was sufficient to determine rio dispute existed as to
any material fact, and then proceeded
to
a
6
determination of the merits ofthe motion for summaryjudgment.
The Illinois EPA asks that the
Board reconsider its
decision of September 4.,
2003,
and
instead conclude
that
the
record was
sufficient
to
render a decision
on
the motion
for summary judgment.
The Illinois
EPA further
asks that
the Board enter a decision
in
its
favor,
based
on
the arguments contained within
the
motion for summaryjudgment.
Respectfully submitted,
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021
North Grand Avenue, East
P.O. Box
19276
Springfield,
Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: October 14, 2003
AGENCY,
This filing submitted on recycled paper.
7
CERTIFICATE OF SERVICE
I, the undersigned attorney at
law,
hereby certify that on
October
14,
2003,
I served true
and
correct
copies
of a .MOTION
FOR
RECONSIDERATION,
by
placing
true
and
correct
copies
thereof
in
properly
sealed
and
addressed
envelopes
and
by
depositing
said
sealed
envelopes in
a U.S.
mail drop box
located within
Springfield, Illinois,
with sufficient First Class
postage affixed thereto, upon the following named persons:
Dorothy M. Gunn, Clerk
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R. Thompson Center
James R. Thompson Center
100 West Randolph Street
100 West Randolph Street
Suite 11-500
Suite 11-500
Chicago, IL 60601
Chicago, IL
60601
Jeffrey E.
Schiller
Schuyler, Roche & Zwirner
One Prudential Plaza
Suite 3800
130 East Randolph Street
Chicago, IL
60601
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Assistant
Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021
North Grand Avenue, East
P.O. Box
19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
