ILLINOIS POLLUTION CONTROL BOARD
    January 19, 2006
    MCLEAN COUNTY ASPHALT,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 05-154
    (UST Appeal)
    ORDER OF THE BOARD (by G.T. Girard):
    On February 14, 2005, McLean County Asphalt (petitioner) filed a petition for review of
    an Illinois Environmental Protection Agency (Agency) decision rejecting an amended budget for
    the remediation of a site in Bloomington, McLean County. Petitioner filed the petition pursuant
    to Section 57.7(c)(4)(D) of the Environmental Protection Act (Act) (415 ILCS 5/57.7(c)(4)(D)
    (2004)). The Board accepted the petition for hearing on March 16, 2005. On November 14,
    2005, petitioner filed a motion for summary judgment and on December 5, 2005, the Agency
    responded in opposition to the motion. For the reasons discussed below the Board denies the
    motion for summary judgment.
    FACTS
    On September 9, 2004, petitioner submitted a “Second Amended Corrective Action Plan
    and Budget” (Amended Plan) to the Agency. Mot. at 1. On January 6, 2005, the Agency refused
    to review the Amended Plan.
    Id
    . In the denial letter the Agency asserts that the Agency had
    already taken final action on the Amended Plan and petitioner had failed to appeal that final
    action.
    Id
    ; Resp. at 1-2.
    STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT
    Summary judgment is appropriate when the pleadings, depositions, admissions on file,
    and affidavits disclose that there is 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). In ruling on a motion for summary judgment, the Board “must
    consider the pleadings, depositions, and affidavits strictly against the movant and in favor of the
    opposing party.”
    Id
    . Summary judgment “is a drastic means of disposing of litigation,” and
    therefore it should be granted only when the movant’s right to the relief “is clear and free from
    doubt.”
    Id
    , citing Purtill v. Hess, 111 Ill. 2d 299, 240, 489 N.E.2d 867, 871 (1986). However, a
    party opposing a motion for summary judgment may not rest on its pleadings, but must “present
    a factual basis which would arguably entitle [it] to a judgment.” Gauthier v. Westfall, 266 Ill.
    App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994).
    2
    ARGUMENTS
    Petitioner argues that there are no genuine issues of material fact and that the Board may
    grant summary judgment as a matter of law. The Agency disagrees and argues that the record
    does not include sufficient facts to determine the outcome of the appeal. The following
    paragraphs summarize the parties’ positions.
    Petitioner’s Arguments
    Petitioner asserts that there are no genuine issues of material facts. Specifically,
    petitioner assets that the cost associated with the completion of the amended plan were in excess
    of the amounts approved in the budget. Mot. at 2. Petitioner argues that pursuant to Section
    57.8(a)(5) of the Act (415 ILCS 5/57.8(a)(5) (2004)), petitioner sought Agency approval of the
    additional costs.
    Id
    . Petitioner argues that the Agency’s failure to review, approve, reject, or
    require modification of the Amended Plan is a violation of the Act. Mot. at 2-3. Petitioner
    argues that the Agency’s prior action was not a final action as defined by Section 57.7(c)(1) of
    the Act (415 ILCS 5/57.7(c)(1) (2004)).
    Id
    . Petitioner asks the Board to grant summary
    judgment and direct the Agency to review the Amended Plan.
    Id
    .
    Agency's Arguments
    The Agency asserts that a final decision on the Amended Plan had been made previously
    and petitioner failed to appeal that decision. Resp. at 2. The Agency points out that in Kean Oil
    Company v. IEPA, PCB 97-146 (May 1, 1997) the Board determined that a petitioner cannot
    restore or resurrect an appeal right by resubmitting a request. Resp. at 2. The Agency argues
    that summary judgment cannot be granted in this case because the record is unclear as to whether
    the original budget and the Amended Plan are identical or similar enough to support the
    Agency’s January 6. 2005 decision.
    Id
    . The Agency argues that the decision cannot be reached
    without reviewing both documents and the original budget is not in the record.
    Id
    . Therefore,
    the Agency argues issues of fact exist and summary judgment should be denied. Resp. at 3.
    DISCUSSION
    Summary judgment is appropriate only if there are no genuine issues of material fact.
    The issue in this appeal is whether or not the Agency’s decision is correct. The Agency
    determined that the Agency would not to review the Amended Plan because the Agency had
    previously made a final decision on the Amended Plan or a plan identical to the Amended Plan.
    For the Board to decide the validity of the Agency’s denial reasons, the Board must review both
    plans or at a minimum testimony on the content of the plans. The record does not contain this
    information at this time. The substance of the plans is an issue of fact. Therefore, the Board
    finds that there are genuine issues of material fact and summary judgment is not appropriate.
    The Board denies the motion for summary judgment and directs that this matter proceed to
    hearing.
    3
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on January 19, 2006, by a vote of 4-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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