ILLINOIS POLLUTION CONTROL
    BOARD
    July 13, 1989
    LEFTON IRON
    AND METAL
    COMPANY,
    )
    INC., a Missouri Corporaton, and
    )
    LEFTON LAND AND DEVELOPMENT
    )
    COMPANY, INC., a Missouri
    )
    Corporation,
    )
    Complainants,
    )
    V.
    )
    )
    MOSS-AMERICAN CORPORATION,
    )
    a Delaware Corporation, and
    )
    KERR-MCGEE CHEMICAL CORPORATION,
    )
    a Delaware Corporation,
    )
    Respondents
    )
    PCB
    87—191
    )
    )
    KERR-MCGEE CHEMICAL CORPORATION
    )
    a Delaware Corporation,
    )
    )
    Counterclaimant,
    )
    V.
    )
    )
    LEFTON IRON AND METAL COMPANY,
    )
    INC., a Missouri Corporation, an~
    )
    LEFTON LAND AND DEVELOPMENT
    COMPANY, INC., a Missouri
    Corporation,
    Counter respondent
    ORDER OF THE BOARD (by J. Marlin):
    On June 14, 1989 Lefton Iron and Metal Company Inc., and
    Lefton Land and Development Company, Inc. (hereafter referred to
    collectively as Lefton) filed a Motion for Summary Judgment. On
    June 16, 1989 Moss-American Corporation (Moss) and Kerr—McGee
    Chemical Corporation (Kerr—McGee) filed a Motion for Extension of
    time to file a response to Lefton’s motion. On June 21, 1989
    Kerr—McGee and Moss filed a Response to the motion for summary
    judgment. Respondents’ June 16th
    motion
    is granted in so ~ar as
    the June 21, 1989 response is accepted.
    Lefton filed a Motion for Leave to File Reply Memorandum and
    its Reply Memorandum on June 28, 1989. On June 30, 1989, the
    respondents filed an objection and motion to strike Lefton’s
    Reply. Generally, the Board does not allow the moving party an
    101 —07
    2
    opportunity to reply to a response, unless the Board or hearing
    officer expressly provides for such a reply. As a result, the
    Board has not considered Lefton’s June 28th Reply. To that
    extent, the respondents’ June 30, 1989 motion is granted.
    Lefton contends that the respondents’ August 1, 1988
    Response to Lef ton’s Request for Admissions, the respondents’
    answers to Lefton’s First Set of Interrogatories, and the
    respondents’ Counterclaim (filed December 29, 1988) indicate that
    there is no genuine issue as to material fact. Lefton concludes,
    then, that it is entitled to summary judgment in its favor, based
    upon its original Complaint.
    The respondents assert that the Board has no autliority to
    grant summary judgment motions since the Board currently has no
    procedural rules governing such motions. Additionally, the
    respondents claim that Lefton misstates the contents of the
    respondents’ Response to Leftonts Request to Admit. In
    particular, the respondents quote from their Response to Lefton’s
    request to Admit (which was filed August 1, 1988):
    Kerr-McGee Chemical Corporation has no
    knowledge of wastes entering groundwater
    underlying the facility and denies that
    creosote and associated wastes were ever
    spilled or dumped indiscriminately upon the
    land.
    (Respondents’ Response to
    Lef ton’s Request to
    Admit,p. 3)
    The respondents also state that Lefton’s attempt at
    receiving a favorable summary judgment improperly bypasses the
    considerations mandated by Section 33(c) of
    the Environmental
    Protection Act (Act). Finally, the respondents request in the
    alternative that the Board not rule upon Lefton’s motion until
    Lefton fully complies with the respondents’ own outstanding
    discovery requests, thereby giving the respondents opportunity to
    seek summary judgment against Lefton.
    It is the Board’s position that it has the authority to
    grant motions for summary judgment notwithstanding the fact that
    detailed procedural rules for such motions do not currently
    exist. 35 Ill. Adm. Code 101.244.
    In its November 30, 1987 complaint Lefton alleges that the
    respondents have violated Section 21(a) and 21(e) of the Act.
    Specifically, the complaint alleges:
    During the period that Respondents operated
    the facility, creosote and waste products of
    creosote were managed in such a way that the
    creosote and associated wastes were spilled
    101—08
    3
    or dumped upon the land at the facility, into
    surface impoundments and possibly into the
    groundwater underlying the facility.
    After creosote treating operations terminated
    at the facility, the Respondents continued to
    store creosote and other associated wastes at
    the facility in surface impoundments, storage
    tanks and in various piles. All of the
    aforesaid actions on the part of the
    Respondents constitute a violation of Section
    21(a) of the Environmental Protection Act in
    that the Respondents caused or allowed the
    open dumping of wastes.
    ***
    The Illinois Environmental Protection Agency,
    after conducting an investigation of the
    facility, has identified some of the
    hazardous constituents left behind by
    Respondents to include creosote, benzene,
    carbon disulfide, toluene, pentachlorophenol,
    naphthalene, various chlorinated solvents,
    all of which were disposed of at the facility
    by Respondents without any permit from the
    Environmental Protection Agency and in
    violation of Section 21(e) of the
    Environmental Protection Act.
    (Complaint p.2,3).
    While it has been held that the Illinois Code of Civil
    Procedure does not apply to Board proceedings, (Village of South
    Elgin v. Waste Management of Illinois, 64 Ill. App. 3d 365, 381
    N.E. 2d 778 (wnd Dist. 1978), the Code may provide guidance for
    the Board in the absence of specific Board regulations. 35 Ill.
    Adm. 101.100. (Adopted in R88—5(A) on June 8, 1989, effective
    July 10, 1989). Section 2—1005 of the Code of Civil Procedure
    addresses the issue of summary judgment. Specifically, it states
    summary judgment should be granted to the moving party if it is
    shown “that there is no genuine issue as to any material fact and
    that the moving party is entitled to judgment as a matter of
    law”. 11. Rev. Stat. 1987, ch. 110, par. 2—1005(c).
    After reviewing the filings in this matter, the Board is not
    convinced that there is no genuine issue as to any material
    fact. The respondents Response to Lefton’s Request to Admit, as
    quote above, certainly appears inconsistent with the conclusions
    drawn by Lefton that the respondents have admitted to activities
    which require findings of violation of Section 21(a) and (e), as
    a matter of law. Consequently, the Board hereby denies Lefton’s
    motion for summary judgment.
    101—09
    4
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board,ofthe
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