RECE~VEE~

CLER~’S

OFFICE

BEFORE

THE ILLINOIS POLLUTION CONTROL BOARD

NOV

3

21303

OF THE STATE OF ILLINOIS

STATE OF ILLINOIS

VOGUE

TYRE

& RUBBER COMPANY,

)

Pollution

Control Bocird

)

Petitioner,

)

)

PCB No. 96-10

v.

)

(UST

Appeal)

)

ILLINOIS

ENVIRONMENTAL

PROTECTION)

AGENCY,

)

Respondent.

)

NOTICE OF

EILING

TO:

Ms. Dorothy Gunn, Clerk of the Board

Illinois Pollution Control Board

State of Illinois Building

100 West Randolph Street

-

Suite

11-500

Chicago, Illinois

60601

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

State of Illinois Building

100 W.

Randolph Street

—

Suite 11-500

Chicago, Illinois

60601

John J.Kim

Illinois Environmental Protection Agency

Division of Legal Counsel

1021 North Grand Avenue East

Springfield, Illinois

62794-9276

PLEASE TAKE NOTICE that on November 3, 2003, we filed with the Office of the

Clerk of

the Pollution Control Board Vogue Tyre & Rubber Company’s Response to Motion for Reconsideration,

a copy of which is attached hereto and hereby served upon you.

VOGUE TYRF

& RUBBER COMPANY

David M. Allen

Jeffrey E. Schiller

J.,

JjL~ ~

Schuyler, Roche & Zwirner

By:

~

(J

130 East Randolph, Suite 3800

One~’bf

its Attorneys

Chicago, IL

60601

David M. Allen

(312) 565-2400

---

RECEFVED

CLFRK’S Omcl~

NO\J

~J

2tJ03

BEFORE THE ILLINOIS POLLUTION CONTROL BO~\1~

~

ILLINOIS

OF THE STATE

OF ILLINOIS

Pollution Control

Board

VOGUE TYRE & RUBBER COMPANY,

)

)

Petitioner,

)

)

PCBNo.96-10

V.

)

(UST Appeal)

)

ILLINOIS ENVIRONMENTAL PROTECTION)

AGENCY,

)

Respondent.

)

PETITIONER’S RESPONSE TO MOTION FOR RECONSIDERATION

Petitioner, Vogue Tyre & Rubber Company (“Vogue”),

by its attorneys, and pursuant to

the

relevant rules

of the

Illinois

Administrative

Code,

files this

Response to

Respondent’s

Motion for Reconsideration within

14

days of receipt of said Motion.

Vogue received service

ofthe Motion forReconsideration on October 20, 2003.

DISCUSSION

Vogue has little to add

to the

Order entered

by the Board

on

September 4,

2003,

other

than

to

say that the

Illinois

Environmental

Protection

Agency

(“IEPA”)

has mischaracterized

Vogue’s

position with

regard

to

the

existence

of disputed facts

of this

case.

While

Vogue

admitted,

in its

Response to Motion for Summary Judgment, that

“by

and large, the essential

facts pertinent to this

case are not in

dispute”, some facts

do remain at issue.

For example, the

IEPA’s decision to place Vogue’s motives at issue in its Motion for Summary Judgment creates

a clear issue of factual dispute.

It was the IEPA which asserted in its Motion that Vogue should

not

be

“rewarded”

for

discovering

and

remediating

the

pollution

in

question,

because,

by

implication,

Vogue

should

have

discovered

the

leak

earlier

and

remediated

upon

such

discovery.

Vogue strenuously

objects to

that

characterization

and

is

prepared,

at hearing,

to

demonstrate that it acted appropriately and promptly.

---

In all

other respects,

Vogue believes

that

the Board’s

Order of September 4,

2003

is

conect,

and

that

the

IEPA’s

Motion

for

Summary

Judgment

did

not

fulfill

the

procedural

requirements.

Should the IEPA reassert its Motion and include Affidavits, Vogue will respond

at that time.

However, Vogue

is

not required to

dispute Affidavits which

have not

yet been

presented

to

avoid

summary judgment.

Accordingly, Vogue prays that

this

Board

deny

the

IEPA’s Motion forReconsideration.

Respectfullysubmitted,

VOGUE

T~E &

RUBBE~

COMPANY

By:______

On&o~its

Attorneys

David M. Allen

Jeffrey E. Schiller

Schuyler, Roche

& Zwimer, P.C.

One Prudential Plaza

130 E. Randolph Street, Suite 3800

Chicago, Illinois

60601

(312) 565-2400

2

---

CERTIFICATE OF SERVICE

I,

Jeffrey

E.

Schiller, one

of the

attorneys for Vogue Tyre

&

Rubber

Company,

certify that

I

caused copies ofthe

foregoing Response to

Motion for Reconsideration to be

served by hand-delivery

before the hour of4:30 p.m., to:

Ms. Dorothy Gunn, Clerk ofthe Board

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

-

Suite 11-500

Chicago, Illinois

60601

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph Street

—

Suite 11-500

Chicago, Illinois

60601

and by depositing

same in the United

States Mail,

first class postage prepaid, at One Prudential Plaza,

130

East Randolph Street, Chicago, Illinois,

to:

John J. Kim

Illinois Environmental Protection Agency

Division ofLegal Counsel

1021 North Grand Avenue East

P.O. Box

19276

Springfield, Illinois

62794-9276

on this 3rd day ofNovember 2003.