ILLINOIS POLLUTION CONTROL BOARD
    January 23, 2003
     
    2222 ELSTON LLC,
     
    Complainant,
     
    v.
     
    PUREX INDUSTRIES, INC., FEDERAL DIE
    CASTING COMPANY, FEDERAL
    CHICAGO CORPORATION, RAYMOND E.
    CROSS, BEVERLY BANK TRUST NO. 8-
    7611, and LAKESIDE BANK TRUST NOS.
    10-1087 AND 10-1343,
     
    Respondents.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
     
     
     
     
    PCB 03-55
    (Citizens UST Enforcement)
     
     
    ORDER OF THE BOARD (W.A. Marovitz):
     
    This matter is before the Board on a motion to intervene (motion) filed by the City of
    Chicago (City) on December 20, 2002. No responses to the motion were filed.
    1
    For the reasons
    below, the Board denies the motion to intervene.
     
    On October 25, 2002, complainant 2222 Elston LLC (Elston), filed a 13-count complaint
    against respondents seeking cost recovery for alleged clean-up expenses incurred regarding a
    property at 2228 N. Elston, Chicago, Cook County. On December 2, 2002, Respondent Purex
    Industries, Inc. (Purex) filed a motion to dismiss the complaint as frivolous. On December 5,
    2002, respondents Federal Die Casting Company, Federal Chicago Corporation, Raymond E.
    Cross, Beverly Bank Trust No. 8-7611, and Lakeside Bank Trust Nos. 10-1087 and 10-1343
    (collectively, Federal Respondents), filed a motion to dismiss the complaint. On December 16,
    2002, the hearing officer granted Elston’s combined motion to conduct limited personal
    jurisdiction discovery and motion for enlargement of time to respond to Purex’s motion to
    dismiss. Also on December 16, 2002, the hearing officer granted Elston’s unopposed motion for
    enlargement of time to file a response to the Federal Respondents’ motion to dismiss. As of this
    date, the Board has not yet accepted the matter for hearing because the time for filing responses
    to the two motions to dismiss has not expired.
     
    The City alleges that like Elston, the City has also incurred costs in addressing
    contamination at the property. Mot. at 1. Namely, the City allocated and incurred approximately
    $350,000 in tax increment financing incentives at the property. Mot. at 1, citing Elston’s
    1
    Pursuant to 35 Ill. Adm. Code 101.500, a party may file a response to a motion within 14 days
    of service. If no response is filed, the party is deemed to have waived objection to granting the
    motion, but the waiver does not bind the Board in its disposition of the motion. 35 Ill. Adm.
    Code 101.500.
     
    2
    complaint at 2. The City argues that if the contamination allegations are proven, it would be
    appropriate for the Board to issue an order directing respondents to reimburse both the City and
    Elston for costs expended in curing the contamination. Mot. at 1. The City alleges it may be
    materially prejudiced if the Board does not allow the City to intervene, because the Board may
    find a separate action filed by the City seeking recovery costs duplicative of this case. Mot. at 2.
     
    Section 101.402 of the Board’s procedural rules governs motions to intervene. 35 Ill.
    Adm. Code 101.402. Section 101.402(d) states in pertinent part:
     
    [T]he Board may permit any person to intervene in any adjudicatory proceeding
    if:
    ***
    2) The person may be materially prejudiced absent intervention;
    ***
     
    The Board is not persuaded that the City may be materially prejudiced if it is not allowed
    to intervene. The City’s assertion that the Board could find a separate complaint filed by
    the City to be duplicative is unpersuasive. A complaint is duplicative if it is “identical or
    substantially similar to one brought before the Board or another forum.” 35 Ill. Adm.
    Code 101.202. The City has not provided sufficient facts to support its assertion that the
    City may be materially prejudiced if the Board does not permit the City to intervene in
    this action. The city has only inferred that because the City granted tax increment
    financing incentives at the property, the City may be entitled to some reimbursement if
    the Board orders reimbursement to Elston. The motion to intervene is denied.
     
    Today’s ruling does not preclude the City from filing its own complaint to seek
    reimbursement for costs incurred involving the site. If the City files its own complaint,
    consolidating the two actions may be appropriate.
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on January 23, 2003, by a vote of 6-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     
     
     
     
     

    Back to top