BEFORE THE ILLINOIS POLLUTION CONTROL BOAR1~E C E ~V E D

OF THE STATE OF ILLINOIS

CLERK’S OFFICE

MATHER INVESTMENT PROPERTIES

)

JUN

032005

L.L.C.

)

STATE OF

ILLlNOIS

)

PolIut~onControl Board

Complainant,

)

)

v.

)

Case No. 05-29

)

ILLINOIS

STATE TRAPSHOOTERS

)

ASSOCIATION, INC.,

)

)

Respondent.

)

PETITIONER’S

RESPONSE

TO MOTION FOR STAY

NOW

COMES

Petitioner, Mather Investment

Properties,

by

and

through

its

attorneys,

Sorling,

Northrup, Haima, Cullen

&

Cochran, Ltd., Charles J. Northrup of counsel,

and hereby

respond to Respondent’s Motion for Stay.

In Response, Petitioner states:

1.

On or about August

16, 2004, Petitioner filed this action with the Illinois Pollution

Control

Board

(“Board”).

A series of extensions oftime

by which Respondent was required to

Answer were filed by Respondent and not objectedto by the Petitioner. Duringthis time, theParties

engaged

in

good

faith negotiations to

resolve this matter.

Although these negotiations

have not•

conclusively terminated, they have not resulted in any settlement of the case.

2.

On or about May 17, 2005, Respondent filed its Answer in this case

and its Motion

for Stay.

3.

Petitioner objects to Respondent’s Motion for Stay.

4.

Section

101.514

of

the

Board’s

procedural

rules

provide

for

a

stay

of Board

proceedings where the movant provides “sufficient information detailing why a stay is needed.”

35

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Il1.Adm.Code

101.5 14.

See Nielsen & Brainbridge

v.

Illinois

EPA, PCB No.

03-98

(February

6,

2003)(2003 Il1.Env.Lexis 63).

Inaddition, the Board’s rule clearly envisions a “stay” in the context

ofstaying enforcement ofan order, and theBoard’s analysis ofthis issue

is not easily applicable to

this

matter.

In Nielsen

&

Brainbridge, the Board referenced an

analysis of such factors

as (1) a

certain

and

clearly ascertainable right

that

needs

protection;

(2)

irreparable

injury will

occur

without the injunction in

this case, the Stay;

(3) no adequate remedy at law exists; and (4) there is

a

probability of success

on

the merits.”

In this

case,

Respondent does

not

identify

a

clearly

ascertainable right in avoiding the imposition of a potential Board

order compelling a clean-up or

imposing a civil penalty.

Indeed, such an argument cannot be made in good faith because to do so

would be to sanctionthe allowanceofcontamination.

Second, no irreparableinjury will occurifthis

matter proceeds.

Third,

an

adequate remedy at law for this

Complaint does exists

--

namely a

hearing onthe merits in this case to identify whethermovant hasviolated the Illinois Environmental

Protection Act.

Fourth, there is no probabilitythat movant will succeed in the underlying matter.

Accordingly, under the applicable standards outlined by the Board, no “stay” ofthis proceeding is

warranted.

5.

In contravention of the applicable

Rule, no “sufficient information detailing why a

stay is needed”

has been identified.

Respondents

are simply advocating a procedural

device by

which they do

not have to face the consequences of its own actions in contaminating the property

at issue.

The contaminated property at issue in this

case remains contaminated as a result of the

activities conducted at the propertyby Respondent.

While the property is located in a commercially

desirable,

and

quickly

developing,

area of

Springfield,

Illinois,

the contamination

presents

an

impediment to the developmentofthe property by Petitioner.

Any stay ofthis action will prejudice

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Petitioner and the residents ofthe area by delaying the prompt clean-up ofthe property. Indeed, a

stay in this case

only serves to

benefit Respondent by delaying the potential that it may be forced,

by Board Order, to clean-up its former property.

Petitionerloses by not being ableto commercially

develop the property.

The City of Springfield loses by not reaping the tax benefits of commercial

development

at this

property.

The residents

of the City of Springfield

lose

by

not

having the

additional services or merchants that might be located on the property. Lastly, theenvironmentloses

in that contamination is allowed to remain in place.

6.

Thecrux ofRespondent’s Motion For Stay is that another casehasbeen filedbetween

these sameParties (and others) addressing the sameproperty and the samecontamination.

This case

has been filed and

is pending in the Circuit Court of Sangamon County.

See Mather Investment

Properties v. Illinois State Trapshooters Associationand HansonProfessional Services, Inc., No. 03-

L-144.

However, Respondent’s remedy in such a situation was to file a motion suggesting that the

Board case was duplicitous.

Respondent did not do this, and the time for sucha motion is long past.

35 Ill.Adm.Code

103.212(b).

Even if such an argument was not untimely, this case should clearly

proceed because the two pending cases are not “identical or substantially similar.”

Union Oil Co.

v.

Barge-Way Oil

Co., PCB No.

98-169 (January 7,

1999)(1999 Ill.Env.Lexis 9).

The Board has

frequently held that even though two cases may involve the same parties, the same time frame, and

the

same

actions, if

the

cases

are

based

on

different

statutes

and

legal

theories

they are not

duplicitous.

~

Lake County Forest Preserve Districtv. Ostro,PCB No. 92-80 (July 30,

1992). The

statutes and legal theories presented in this case are distinct and separate thanthe theories presented

in the Circuit Court action.

This action before the Board is seeking civil penalties under the Act as

well

as an

order compelling the clean-up ofthe property.

The Circuit Court action is

based upon a

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contractdispute betweenthe Parties, aswell as theoriesofnegligentmisrepresentation against a third

party. That action seeks civil damages, which the Board cannot award.

Accordingly, nothing about

the pending Sangamon County Circuit Court

action prevents the Board

from proceeding

in this

matter.

7.

Respondent

presents

another

set

of factors

for

consideration

by

the

Board

in

determining the appropriateness

of the Motion

For

Stay.

Respondent cites Environmental

Site

Developers.

Inc.

v.

White

and

Brewer

Trucking,

Inc.,

PCB

No.

96-180

(July

10,

1997)

for

consideration ofthese factors: (1) comity; (2) prevention ofmultiplicity, vexation and harassment;

(3) likelihood ofobtaining complete reliefin the foreignjurisdiction; and, (4) the res

j

udicata effect

ofa foreign judgment in the local forum.

However, none ofthese factors favor staying this matter

before the Board.

With

respect

to

“comity,”

Respondent references

the

central

issue

of adjudicating

the

“contractual transaction” between the parties.

The “contractual transaction” between the parties,

however, has nothing to

do with the alleged violation ofthe Act by Respondent, which is the sole

issue before the Board.

Concepts of”comity”

are not at issue in this case.

Similarly, with respect to the second factor, Respondent notes

“In this case, a stay would

avoid the multiplicity

ofproofand argument concerning the proper interpretation ofthe contract”

(Mot. at 6).

Again, the terms ofthe contract between the Parties

is not at issue before the Board.

What

is

at issue before the Board is

whether the Respondent has abandoned waste

(or any

other

violation

of the

Act)

at this

site

such that

it

should

be

compelled

to

clean

it

up.

There

is

no

multiplicity of suits here.

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With

respect

to

obtaining

“complete

relief”, the pending

Circuit

Court

action

will

not

adjudicate violations ofthe Act, which are at issue in theBoard case. Here too, this is an insufficient

rationale for staying this Board proceeding.

Finally, resjudicata is also not at issue.

Again, the causes ofaction in the Circuit Court and

Board proceedings are different.

Ajudgment in either forum will not conclude or decide issues the

other.

Accordingly, for these reasons, Respondent’s arguments are without merit.

WHEREFORE, Petitioner, Mather Investment Properties, L.L.C., respectfully requests that

this

Board deny Respondent’s Motion for Stay.

Respectfully submitted,

Mather Investment Properties, L.L.C.

By:

~

-~

On~OfItsAttomeys

Sorling, Northrup, Hanna,

Cullen & Cochran, Ltd.

Charles J. Northrup, of Counsel

Suite 800

Illinois Building

P.O.Box5131

Springfield, IL 62705

Telephone: (217) 544-1144

Facsimile:

(217) 522-3173

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PROOF OF SERVICE

The undersignedhereby certifies that one original and 10 copies ofthe foregoing document

was served by placing same in a sealed envelope addressed:

Dorothy Gunn, Clerk

Illinois Pollution

Control Board

100 West Randolph St.,

Suite 11-500

James R.

Thompson Center

Chicago, IL 60601-3218

and

one copy to:

Ms. Carol

Webb

Hearing Officer

Illinois Pollution Control Board

1021 North Grand Ave. East

Post Office Box

19274

Springfield,

IL 62794-9274

Mr. Fred Prillaman

Mohan, Alewelt, Prillaman & Adami

1

North Old State Capitol Plaza, Suite 325

Springfield,

IL

62701

Mr. Richard Ahrens

Lewis, Rice & Fingersh

500 N. Broadway,

Suite 2000

St.

Louis~

MO 63 102-2147

k5~

and by depositing

same in the United States mail in Springfield, Illinois,

on the ~

day of May,

2005, with postage fully prepaid.

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