BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MCLEAN COUNTY ASPHALT, )
Petitioner, )
v. ) PCB No. 05-154
ILLINOIS ENVIRONMENTAL ) (LUST Appeal)
PROTECTION AGENCY, )
Respondent. )
NOTICE
Dorothy M. Gunn, Clerk Curtis W. Martin
Illinois Pollution Control Board Robert E. Shaw
James R. Thompson Center Shaw & Martin, P.C.
100 West Randolph Street 123 South 10
th
Street, Suite 302
Suite 11-500 P.O. Box 1789
Chicago, IL 60601 Mt. Vernon, IL 62864
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue, East
P.O. Box 19274
Springfield, IL 62794-9274
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution
Control Board a RESPONSE TO MOTION FOR SUMMARY JUDGMENT, copies of which are
herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
____________________________
John J. Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December 5, 2005
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 5, 2005
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on December 5, 2005, I served true
and correct copies of a RESPONSE TO MOTION FOR SUMMARY JUDGMENT, by
electronic filing to the Clerk of the Illinois Pollution Control Board and by placing true and
correct copies in properly sealed and addressed envelopes and by depositing said sealed
envelopes in a U.S. mail drop box located within Springfield, Illinois, with sufficient First Class
Mail postage affixed thereto, to the Petitioner and Hearing Officer:
Dorothy M. Gunn, Clerk (Electronic filing) Curtis W. Martin
Illinois Pollution Control Board Robert E. Shaw
James R. Thompson Center Shaw & Martin, P.C.
100 West Randolph Street 123 South 10
th
Street, Suite 302
Suite 11-500 P.O. Box 1789
Chicago, IL 60601 Mt. Vernon, IL 62864
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue, East
P.O. Box 19274
Springfield, IL 62794-9274
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
____________________________
John J. Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 5, 2005
1
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MCLEAN COUNTY ASPHALT, )
Petitioner, )
v. ) PCB No. 05-154
ILLINOIS ENVIRONMENTAL ) (UST Appeal)
PROTECTION AGENCY, )
Respondent. )
RESPONSE TO PETITIONER’S MOTION FOR SUMMARY JUDGMENT
NOW COMES the Respondent, the Illinois Environmental Protection Agency (“Illinois
EPA”), by one of its attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to 35 Ill. Adm. Code 101.500, 101.508 and 101.516, hereby responds to the
Motion for Summary Judgment filed by the Petitioner, McLean County Asphalt (“MCA”). The
Illinois EPA respectfully requests that the Illinois Pollution Control Board (“Board”) deny the
Petitioner’s motion for summary judgment on the basis that there exists a genuine issue of material
fact. In support of this response, the Illinois EPA states as follows:
I. STANDARD FOR ISSUANCE OF SUMMARY JUDGMENT
A motion for summary judgment should be granted where the pleadings, depositions,
admissions on file, and affidavits disclose no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill.2d 460,
483, 693 N.E.2d 358, 370 (1998); Ozinga Transportation Services v. Illinois Environmental
Protection Agency, PCB 00-188 (December 20, 2001), p. 2. Thus, in order for the Board to grant the
motion for summary judgment, it must first find there is no genuine issue of any material fact.
Here, the January 6, 2005 final decision currently under appeal (as found in Exhibit A of the
Petitioner’s petition for review) provided that the Illinois EPA had previously notified the owner or
operator of its final action. The attachment to the Illinois EPA’s final decision also noted that the
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2
original final decision was subject to appeal, and that the Petitioner failed to exercise its appeal
rights as to that decision. Petition, Exhibit A, Attachment A.
II. THE ILLINOIS EPA ALREADY ACTED ON THE SUBMISSION
The Illinois EPA’s position, as set forth in the January 6, 2005 final decision, was that it had
already issued a decision on the subject proposed amended budget. That decision is not included
with the Petitioner’s motion for summary judgment or the petition for review. But the Illinois EPA
has clearly stated that a decision on the amended site classification work plan budget that was dated
on September 9, 2004, and received by the Illinois EPA on September 10, 2004, had already been
issued in a previous final decision.
As the Board noted in the case of Kean Oil Company v. Illinois EPA, PCB 97-146 (May 1,
1997), a submission that is identical in nature to a previous submission cannot restore or resurrect an
appeal right on the part of the would-be petitioner. In Kean Oil, the Board agreed with the Illinois
EPA that the action was barred by res judicata after the Illinois EPA demonstrated all necessary
elements of such finding had been met. Key in that discussion was the Board’s consideration of the
similarity or identical nature of the two submissions by the petitioner (i.e., the first submission that
led to a final decision that was not appealed, and the second submission that led to a finding that no
appeal could be taken).
The Illinois EPA argues that in this situation, the Board cannot grant the motion for summary
judgment on the ground posited by MCA since it is unclear whether the original budget and the
amended budget are, in fact, identical or similar enough in nature to warrant the Illinois EPA’s final
decision of January 2005. If the two documents are identical or similar enough, the Illinois EPA’s
decision was correct. That decision cannot be reached without a review and discussion of the
content of the two documents, and any such discussion or arguments on that issue are factual in
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 5, 2005
3
nature. The mere assertions of the Petitioner, without any evidentiary proof in support, that the
amended plan was different are insufficient to form the basis for summary judgment. Therefore,
there exists a genuine issue of material fact as to whether the Illinois EPA’s January 2005 final
decision should be affirmed or reversed.
III. CONCLUSION
For the reasons stated herein, the Illinois EPA respectfully requests that the Board deny the
Petitioner’s motion for summary judgment on the basis that there exists a genuine issue of material
fact.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
____________________________
John J. Kim
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: December 5, 2005
This filing submitted on recycled paper.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 5, 2005
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