ILLINOIS POLLUTION CONTROL BOARD
May 2, 1996
RALEIGH REALTY CORPORATION,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 96-52
(UST - Reimbursement)
ORDER OF THE BOARD (by G.T. Girard):
This matter involves the Illinois Environmental Protection Agency’s (Agency) final
determination regarding reimbursement of Raleigh Realty Corporation’s (Raleigh) costs for
removing five leaking underground storage tanks located on its property at 11501 S. Kedzie in
Merrionette Park, Illinois. The Agency denied reimbursement costs on April 4, 1995 pursuant
to Sections 57.8(I) and 40(a) of the Illinois Environmental Protection Act (Act). On
September 8, 1995 the Agency filed a Joint Request for 90-Day Extension which was granted
by Board order on September 21, 1995. Raleigh filed its petition for appeal on December 6,
1995.
The parties in this matter have since filed a number of motions, cross-motions and
responses. For purposes of clarity, this order will list the filings in chronological order, and
then address the Agency’s Motion to Consolidate, and all subsequent filings related to it. The
Board reserves ruling on Raleigh’s Motion for Summary Judgment and the Agency’s Cross-
Motion for Summary Judgment, and all subsequent filings pertinent thereto.
PROCEDURAL HISTORY
On March 11, 1996 Raleigh filed a Motion to File Petitioner’s Motion for Summary
Judgment in Excess of Fifteen Pages; a Motion to File a Reply Brief in the Event that the
Agency Files a Response; and a Motion for Summary Judgment. On March 21, 1996 the
Board granted Raleigh’s Motion to File Petitioner’s Motion for Summary Judgment in Excess
of Fifteen Pages, and reserved ruling on the other motions until the deadline for the Agency to
file its response had expired on March 22, 1996. On March 27, 1996 the Agency filed its
Response to Petitioner’s Motion for Summary Judgment and a Cross-Motion for Summary
Judgment in Excess of Fifteen Pages.
On April 3, 1996 Raleigh filed a Motion to Strike the Agency’s Response Brief and
Cross Motion for Summary Judgment; a Motion to File a Reply Brief in Excess of Fifteen
Pages; and its Reply Brief in Support of Its Motion for Summary Judgment. On April 5, 1996
the Agency filed a Motion to Consolidate.
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On April 12, 1996 the Agency filed a Response to Raleigh’s April 3, 1996 Motion to
Strike; an Objection to Petitioner’s Motion to File its Reply Brief in Excess of Fifteen Pages; a
Motion to Strike Raleigh’s Reply Brief; a Motion to Strike Raleigh’s Motion to Strike; a
Motion to Strike Any Response to the Agency’s Cross-Motion for Summary Judgment; a
Request to File a Response to Raleigh’s Reply Brief; a Motion to File a Response in Excess of
Fifteen Pages; and, its Response to Raleigh’s Reply Brief. On April 15, 1996 Raleigh filed a
Motion to Deny the Agency’s Motion to Consolidate.
On April 18, 1996 the Board received a letter from Raleigh requesting guidance
concerning the necessity of replying to the Agency’s filings. By Hearing Officer Notice dated
April 23, 1996 the parties were informed that the Board cannot offer advice but referred the
parties to the procedural rules governing motion practice before the Board. On April 23,
1996 Raleigh filed its Responses to Various Agency Motions. The Board received the
Agency’s Motion to Strike Petitioner’s Motion to Deny the Agency’s Motion to Consolidate on
April 29, 1996. On April 30, 1996 Raleigh’s and Kathe’s Auto Service Center filed a Joint
Motion to Deny the Agency’s Motion to Strike Petitioner’s Motion to Deny the Agency’s
Motion to Consolidate.
MOTION TO CONSOLIDATE
On April 5, 1996 the Agency filed a Motion to Consolidate, requesting that this matter
be consolidated with PCB 96-102, Kathe’s Auto Service Center v. Illinois Environmental
Protection Agency. Kathe’s Auto Service is located at 835 Milwaukee Avenue, Glenview,
Illinois. On April 15, 1996 Raleigh filed its Motion to Deny the Agency’s Motion to
Consolidate. Thereafter, the Board received the Agency’s Motion to Strike Petitioner’s
Motion to Deny the Agency’s Motion to Consolidate on April 29, 1996. On April 30, 1996
Raleigh and Kathe’s Auto Service Center filed a Joint Motion to Deny the Agency’s Motion to
Strike Petitioner’s Motion to Deny the Agency’s Motion to Consolidate.
In its Motion to Strike Petitioner’s Motion to Deny, the Agency asserts that Raleigh
missed the filing deadline for its Motion to Deny. The Agency contends that it personally
served its Motion to Consolidate on April 5, 1996 at the offices of Raleigh’s attorney. The
Agency argues that pursuant to 35 Ill. Adm. Code 101.241(b), any response to its motion was
due on or before April 12, 1996 and since Raleigh’s response was filed on April 15, 1996 it is
therefore untimely and should be stricken. In response, Raleigh asserts that no one at its
attorney’s offices was served with the Agency’s Motion on April 5, 1996 but that a copy was
received and date stamped on April 8, 1996; therefore its April 15, 1996 filing is timely. Both
the Agency and Raleigh support their positions by affidavit.
Due to the conflict in service evidence before us, we accept Raleigh’s Motion to Deny
the Agency’s Motion to Consolidate as timely filed and deny the Agency’s Motion to Strike.
For the reasons set forth below the Board denies the Agency’s Motion to Consolidate.
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In its Motion to Consolidate, the Agency, without citing any authority, argued that
consolidating these two cases would be proper because the issues are identical; both parties
used the same environmental consultant; and the Board’s hearing officer and the parties’
attorneys are identical. The Agency further asserted that consolidation in this matter would
promote the interests of convenience, judicial efficiency and expeditious resolution.
Raleigh opposes the motion, stating that consolidation is only appropriate when two
separate causes of action are similar in nature; arise from the same act or event; involve the
same or like issues; and depend largely on the same evidence. Raleigh asserts that
consolidation of its case with Kathe’s Auto Service Center is not appropriate because the two
cases arise from separate facts; involve two different parties and two different locations; and
depend on different evidence. Raleigh further argues that neither the Illinois Rules of Civil
Procedure nor the Board’s regulations permit the consolidation of motions for summary
judgment brought by different parties in different matters. Finally, Raleigh argues that it
would be greatly prejudiced if the matters were consolidated because consolidation would
cause confusion and complicate the pleadings, hearings, and rulings.
The Board denies the Agency’s Motion to Consolidate. As Raleigh correctly indicated,
consolidation of two separate actions is proper if they are similar in nature; arise from the
same act or event; involve the same or like issues; and depend largely on the same evidence,
without allowing prejudice to a substantial right of one or more of the parties.
(Richard/Allen/Winter, Ltd. v. Waldorf, 156 Ill. App.3d 717, 509 N.E.2d 1078 (1987); 735
ILCS 5/2-1006 (1994).) The two separate actions at issue here involve two different locations,
two different complainants; and two different set of facts. While the Board appreciates the
Agency’s concern for conserving resources for all entities involved, the Board does not find
consolidation appropriate when it has the potential to cause great confusion, as in this instance.
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
______________.
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Dorothy M. Gunn, Clerk
Illinois Pollution Control Board