ILLINOIS POLLUTION CONTROL BOARD
    June 6, 1996
    KATHE'S AUTO SERVICE CENTER,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB 96-102
    (UST - Reimbursement)
    ORDER OF THE BOARD (by J. Yi):
    On November 11, 1995, Kathe’s Auto Service Center (Petitioner) filed a petition for
    review appealing the Illinois Environmental Protection Agency’s (Agency) final reimbursement
    decision concerning Petitioner’s leaking underground storage tanks pursuant to Sections 57.8(i)
    and 40(a) of the Environmental Protection Act (Act). Petitioner’s facility is located at 835
    Milwaukee Avenue, Glenview, Illinois. This matter is before the Board pursuant to several
    motions and filings made by the parties in the last couple of months. The focus of the filings
    are cross-motions for summary judgment. The Board’s order today will address several of the
    preliminary motions. The Board will rule on the cross-motions for summary judgment in a
    subsequent Board order.
    PROCEDURAL HISTORY
    On April 5, 1996 the Agency filed a motion for summary judgment and a motion to
    consolidate this matter with PCB 96-52, Raleigh Realty Corporation v. Illinois Environmental
    Protection Agency. Raleigh Reality Corporations’ facility is located at 11501 S. Kedzie
    Merrionette Park, Illinois.
    1
    On April 15, 1996, Petitioner filed a cross-motion for summary judgment, a response
    brief to the Agency’s motion for summary judgment, a motion to file in excess of the fifteen
    (15) page limitation its cross-motion for summary judgment and response to the Agency’s
    motion for summary judgment, a motion to stay the Agency’s motion for summary judgment
    and a motion to adopt Raleigh Realty Corporation’s motion to deny the Agency’s motion to
    consolidate these matters.
    2
    1
    The Agency’s motion for summary judgment will be referenced to as “Ag. SJ at .”.
    2
    The Petitioner’s cross-motion for summary judgment will be referred to as “Pet. SJ at
    .”, the Petitioner’s response to the Agency’s Motion for summary judgment will be referenced
    2
    On April 29, 1996, the Agency filed a response to Petitioner’s motions to deny the
    Agency motion to consolidate and Petitioner’s motion to stay the Agency’s motion for
    summary judgment, a motion for leave to file a reply to Petitioner’s motion for summary
    judgment, a motion to strike Petitioner’s response brief to the Agency’s motion for summary
    judgment and an objection to the Petitioner’s motion to file both its response brief to the
    Agency’s motion for summary judgment and its motion for summary judgment in excess of the
    fifteen (15) page limitation.
    3
    On April 30, 1996 Petitioner filed a response to the Agency’s
    motion to strike.
    On May 2, 1996, Petitioner filed a response to the Agency’s motion to strike
    Petitioner’s response brief to the Agency’s motion for summary judgment; a response to the
    Agency’s responses to Petitioner’s motion to deny the Agency’s motion to consolidate; a
    response to the Agency’s response to Petitioner’s motion to stay the Agency’s motion for
    summary judgment; a response to the Agency’s motion to strike Petitioner’s motion to deny
    the Agency’s motion to consolidate; a response to the Agency’s objection to the Petitioner’s
    motion to file its motion for summary judgment in excess of the 15 page limitation and a
    response to the Agency’s motion for leave to file a reply brief to the Petitioner’s response to
    the Agency’s motion for summary judgment. Also on May 2, 1996, the Agency filed a
    motion to file its response to the Petitioner’s motion for summary judgment in excess of the 15
    page limitation and its response.
    4
    On May 8, 1996, Petitioner filed a motion to file its reply brief in support of its motion
    for summary judgment instanter and its reply brief.
    On May 28, 1996, the parties filed a joint motion withdrawing several of the motions
    pending before the Board. The parties state that the Petitioner withdraws the following
    motions filed on April 15 and May 2:
    •
    Motion to stay the Agency’s motion for summary judgment;
    •
    Response to the Agency’s motion to strike Petitioner’s response brief to the
    Agency’s motion for summary judgment;
    •
    Response to the Agency’s responses to Petitioner’s motion to deny the Agency’s
    motion to consolidate;
    to as “Pet. Resp. to Ag. SJ at .”, and Petitioner’s motion to file in excess of the 15 page
    limitation will be referred to as “Pet. Excess at .”.
    3
    The Agency’s motion to file a reply to the Petitioner’s response to the Agency’s motion
    for summary judgment will be referenced to as “Ag. Mot. to Reply at .”.
    4
    The Agency’s motion to file its response to Petitioner’s motion for summary judgment
    in excess of the 15 page limitation will be referred to as “Ag. Excess at .”.
    3
    •
    Response to the Agency’s response to Petitioner’s motion to stay the Agency’s
    motion for summary judgment;
    •
    Response to the Agency’s motion to strike Petitioner’s motion to deny the
    Agency’s motion to consolidate;
    •
    Response to the Agency’s objection to the Petitioner’s motion to file its motion
    for summary judgment in excess of the 15 page limitation; and
    •
    Response to the Agency’s motion for leave to file a reply brief to the
    Petitioner’s response to the Agency’s motion for summary judgment.
    The parties also state that the Agency withdraws the following filed on April 29:
    •
    Motion to strike Petitioner’s response to the Agency’s motion for summary
    judgment;
    •
    Response to Petitioner’s motion to stay;
    •
    Response to Petitioner’s motion to deny Agency’s motion to consolidate;
    •
    Motion to strike Petitioner’s motion to deny the Agency’s motion to
    consolidate; and
    •
    Objection to Petitioner’s motion to file its cross-motion for summary judgment
    and response to the Agency’s motion for summary judgment in excess of 15
    pages.
    DISCUSSION
    On May 2, 1996, the Board denied the Agency’s motions to consolidate and strike,
    therefore the above mentioned filings associated with the Agency’s motion to consolidate has
    been addressed. The Board grants the parties’ May 28 joint motion to withdraw various
    filings.
    5
    This order will address the remaining, outstanding motions except for the Agency’s
    motion for summary judgment and Petitioner’s cross-motion for summary judgment.
    On April 15, 1996, Petitioner filed a motion to file its cross-motion for summary
    judgment and its response to the Agency’s motion for summary judgment in excess of the 15
    page limitation set forth at 35 Ill. Adm. Code 101.104. Petitioner states that it is requesting
    relief from the 15 pages limitation because the issues and arguments being made by the
    Agency in its motion for summary judgment and the basis for denial contained in the Agency’s
    denial letter are numerous. (Pet. Excess at 2.)
    The Board grants Petitioner’s motion to file its cross-motion for summary judgment and
    its response to Agency’s motion for summary judgment in excess of the 15 page limitation.
    We find that the issues involved required the Petitioner to file in excess of the 15 page
    limitation in order to fully represent its position and the facts.
    5
    The Board notes its concern with the parties’ use of motion practice in this instance.
    Although the Board invites all appropriate motions, as these may have been, all practitioners
    before the Board should be aware that frivolous motion practice will not be tolerated and may
    result in sanctions.
    4
    The Agency filed a motion for leave to file a reply to Petitioner’s response to the
    Agency’s motion for summary judgment on April 29, 1996. The Agency states for various
    reasons enumerated in its motion that it “would be greatly prejudiced if it was not permitted or
    allowed to address the factual and legal issues raised by the Petitioner in its Response Brief”.
    (Ag. Mot. to Reply at 2.)
    The Board denies the Agency’s motion to reply to Petitioner’s Response to the
    Agency’s motion for summary judgment. The parties have fully addressed the issues before
    the Board in both the motions for summary judgment and responses and no prejudice would
    exist if the Board were to rule on the Agency’s motion for summary judgment without further
    briefing.
    On May 2, 1996, the Agency filed its response to the Petitioner cross-motion for
    summary judgment and a motion to file its response in excess of the 15 page limitation. The
    Board grants the Agency’s motion to file in excess of the page limitation.
    On May 8, 1996 Petitioner filed a motion to file a reply brief in support of its cross-
    motion for summary judgment. Petitioner states that the Agency raised several new arguments
    in its response to Petitioner motion such that Petitioner will be prejudiced if it is not allowed to
    file a reply. The Board, for the same reasons it denied the Agency’s motion to file a reply to
    Petitioner’s response to Agency’s motion for summary judgment, we deny Petitioner motion to
    file a reply. Therefore, the remaining issues currently before the Board which will be
    considered in a pending order of the Board are defined by the motions for the summary
    judgment and corresponding responses.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the _____ day of ___________, 1996, by a vote of
    ______________.
    ___________________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

    Back to top