REC~LVED
BEFORE THE
CLERK’S OFFICE
ILLINOIS POLLUTION CONTROL BOARD
DEC 23 2003
GINA PATTERMANN,
)
STATE OF ILUNOIS
)
Pollution Control Board
Complainant,
)
)
V.
)
PCBNo.99-187
)
(Citizens Enforcement
-
Noise, Air)
BOUGHTON TRUCKING
AND
)
MATERIALS, iNC.,
)
)
Respondent.
)
NOTICE OF
FILING
TO:
See Attached Certificate ofService
Please take notice that on December 23, 2003, I filed with the Illinois Pollution Control
Board an original and nine copies ofthis Notice ofFiling and the attached Boughton’s Motion
for Board Action on Motion for Summary Judgment, copies ofwhich are attached and hereby
served upon you.
Dated: December 23, 2003
BOUGHTON TRUCKING AND MATERIALS, INC.
~
One ~
Mark R. Ter Molen, Esq.
Patricia F. Sharkey, Esq.
Kevin G. Deshamais, Esq.
MAYER, BROWN, ROWE & MAW LLP
190 S. LaSalle Street
Chicago, Illinois 60603
(312)782-0600
THIS DOCUMENT HAS BEEN
PRINTED
ON RECYCLED PAPER
H
BEFORE THE
R~~vFD
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
DEC 232003
GINA PATTERMANN,
)
STATE OF ILLINOIS
)
Pollution Control Board
Complainant,
)
PCB 99-187
)
v.
)
(Citizen Enforcement
—
)
Noise, Air)
BOUGHTON TRUCKING AND
)
NATERIALS, iNC.,
)
)
Respondent.
)
MOTION FOR
BOARD
ACTION
ON MOTION FOR SUMMARY JUDGMENT
NOW COMES Respondent, Boughton Trucking and Materials, Inc. (“Boughton”), by its
attorneys, Mayer, Brown, Rowe & Maw LLP, and moves the Board to act on Respondent’s
pending Motion for Summary Judgment filed on November 10, 2003.
In support thereof, Respondent states:
1.
Plaintiff, by Hearing Officer order and agreement ofthe parties, was granted in
excess ofthe fourteen day response period provided by rule to respond to Respondent’s Motion
for Summary Judgment. In fact, Plaintiff was given thirty-seven days to file its response. Her
response was due December 17, 2003.
2.
Plaintiffhas failed to respond and has also failed to file a motion forextension of
time to respond.
3.
Plaintiff’s failure to respond constitutes a waiver ofany objection to the granting
ofthe Motion for Summary Judgment. 35 Ill. Admin. Code 101.500(d). It effectively admits the
uncontested facts in the Motion for Summary Judgment. A party opposing a motion for
THIS DOCUMENT
HAS
BEEN PRINTED ON RECYCLED PAPER
summaryjudgment may not rest on its pleadings, but must “present a factual basis which would
arguably entitle it to ajudgment.” Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E. 2d.
994 (2d Dist. 1994).
4.
Although Plaintiff’s waiver ofits response is not binding on the Board, it does
allow the Board to go forward and act on the Motion for Summary Judgment without further
delay. Section
5
ofthe Environmental Protection Act (“Act”) (735 ILCS
5/2-1005(c))
states:
“Thejudgment sought shall be rendered
without delay
if the pleadings, depositions, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter oflaw.”
5.
All admissible evidence is now before the Board in the detailedMotion for
Summary Judgment filed by Respondent, including sworn affidavits, deposition transcripts and
other exhibits. This evidence includes all facts relevant to the Board’s consideration ofthe
allegations in the Complaint was well as to the Section 33(c) factors, and, if the Board finds it
necessary to consider a civil penalty, to the Section 42 (h) factors.
6.
Further delay in Board action on the Motion for Summary Judgment is
unwarranted. The Complaint in this case was filed over four years ago and Plaintiffhas dragged
her feet ever since, repeatedly failing to meet deadlines orprovide facts substantiating the claims
in the Complaint.
7.
The Motion for Summary Judgment is ripe for Board decision and Respondent
urges the Board to take action on that motion without further delay.
-2-
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
WHEREFORE, Respondent moves the Board to grant its November 10, 2003 Motion for
Summary Judgment without further delay.
Respectfully submitted,
December 23, 2003
~
In~
By One ofIts Attorneys
Patricia F. Sharkey
Kevin Deshaniais
Mark R. Ter Molen
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, IL 60603
312-782-0600
Attorney Registration No. 6181113
-3-
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
Patricia F. Sharkey, an attorney, hereby certifies that a copy ofthe attached Notice of
Filing and Boughton’s Motion forBoard Action on Motion for Summary Judgment was served
on the persons listed below by First Class U.S. Mail, proper postage prepaid, on December 23,
2003.
Bradley Halloran
Illinois Pollution Control Board
100 West Randolph Street
Chicago, IL 60601
(Courtesy Copy)
Michael S. Blazer
Matthew E. Cohn
The JeffDiver Group, LLC
1749 5. Naperville Road, Suite #102
Wheaton, IL 60187
(U.S. Mail)
Kenneth A. Carison
Tracy Johnson & Wilson
Sixth Floor, Two Rialto Square
116 North Chicago Street
Joliet, IL 60432
(U.S. Mail)
.P~aF~~ey
Patricia F. Sharkey
Attorney for Respondents
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois 60603
312-782-0600
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER