RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARIb
.'2 E' 2006
FEDEX GROUND PACKAGE SYSTEM, INC,
Petitioner,
V .
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent .
NOTICE OF FILING AND PROOF OF SERVICE
TO: Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 W . Randolph Street, Suite 11-500
Chicago, Illinois 60601
Melanie A . Jarvis, Esq .
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P .O. Box 19276
Springfield, IL 62794-9276
PLEASE TAKE NOTICE that on November 28, 2006, 1 hand delivered to the
Clerk of the Illinois Pollution Control Board the original and nine (9) copies of the
attached MOTION TO CONSOLIDATE FOR PURPOSE OF DECISION, and
SECOND WAIVER OF DECISION DEADLINE for filing in this action, with one (1)
copy for delivery to Hearing Officer Halloran
. I hereby certify that true and accurate
copies of these documents and this Notice are being served upon attorney for the
Respondent at the address shown above, by depositing it in the U .S . Mail in Chicago,
Illinois, with First Class Postage prepaid, on this date .
Pollution
STATE OF
Control
ILLINOIS
Board
PCB 07-12
(UST Fund Appeal)
Attorney for Petitioner FedEx Ground
DAGGETT LAW FIRM
Chicago Title Tower, Suite 4950
161 North Clark Street
Chicago, Illinois 60601
(312) 960-1600
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDCLERK'S
R ECEIVEDOFFICE
~-
2 fi
2006
FEDEX GROUND PACKAGE SYSTEM, INC ., )
Pollution
STATE OF
Control
ILLINOIS
Board
Petitioner,
)
v .
)
PCB 07-012
(UST Fund Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
)
MOTION TO CONSOLIDATE FOR PURPOSE OF DECISION
Petitioner, FEDEX Ground Package System, Inc
. ("Petitioner"), by its attorney,
Thomas W. Daggett of the Daggett Law Firm, respectfully submits this Motion To
Consolidate For Purpose of Decision to the Board, in accordance with Board rules at 35
Ill
. Adm . Code 101 .406 and 35 III
. Adm . Code 101 .502, for the reasons set out below .
1 .
Petitioner filed its Petition for Review of Underground Storage Tank
Fund Reimbursement Determination in this matter on August 21, 2006, and the Board
accepted it for hearing on September 7, 2006.
2 .
Respondent IEPA filed a motion for summary judgment in this matter on
September 1, 2006; Petitioner filed its Response in Opposition on September 18, 2006 ;
and Respondent filed a Motion for Leave to File Reply instanter September 27, 2006 ;
these motions remain pending before the Board . Petitioner has committed to file its
own cross-motion for summary judgment by December 15, 2006, as reported in the
November 16, 2006 Hearing Officer's Order in this matter .
3 .
In searching all prior decisions on the Board's website to prepare its
brief opposing the Respondent's summary judgment motion, Petitioner has determined
that the legal issue presented is apparently a matter of first impression before the Board
.
4.
Petitioner's search revealed, however, that another Petition for Review
of Underground Storage Tank Fund Reimbursement Determination by an unrelated
entity, currently pending before the Board, raises the same legal issue, with certain
different factual details,
Broadus Oil v . IEPA
(Consolidated : PCB 04-31 and 05-43)
. In
that case, cross-motions for summary judgment have been filed
; Respondent filed a
motion for Leave to File Reply instanter on September 28, 2006, the day after its
similar motion in this
FedEx case
. In its November 16, 2006 meeting, the Board
referred the
Broadus
summary judgment motions to deliberative session
.
5.
Section 101
.406 of the Board procedural rules provides
:
"The Board, upon the motion of any party or upon its own motion, may
consolidate two or more proceedings for the purpose of hearing or
decision or both
. The Board will consolidate the proceedings if
consolidation is in the interest of convenient, expeditious, and complete
determination of claims, and if consolidation would not cause material
prejudice to any party
. The Board will not consolidate proceedings where
the burdens of proof vary
."
6 .
In accordance with Rule 101
.406, Petitioner FedEx respectfully moves the
Board to consolidate this matter with
Broadus Oil v
.
IEPA (Consolidated
: PCB 04-31
and 05-43) for purposes of decision only
. Denial of this motion could cause extreme
material prejudice to Petitioner FedEx because the Board could rule upon the relevant
legal issue of first impression in the Broadus
case before it reviews FedEx's legal
arguments in its cross-motion for summary judgment, which is due to be filed by
December 15, 2006 .
2
7.
Granting this Motion would be convenient and expeditious . It might
briefly delay its initial decision on an important legal issue of first impression, but it
would provide the Board a more complete briefing of the legal issues, and additional
factual circumstances to use in explaining its interpretation of the regulation at issue to
IEPA and the regulated community in its consolidated Opinion
.
8.
Decision Deadline Waivers have been filed in both this
FedEx case (to
May, 2007) and the Broadus
case (to April, 2007) sufficient to allow the Board to grant
this motion and issue a consolidated decision on the cross motions for summary
judgment without need to set hearings in either case . Petitioner believes it unlikely that
either case will go to hearing, and it is not moving for consolidation for the purpose of
hearing.
9 .
Petitioner has conferred with the attorney for Petitioner in Broadus v
.
IEPA ;
from that discussion, we understand that Broadus is in agreement with this motion
and will be filing a similar motion in
Broadus v. IEPA in the near future.
Respectfully submitted,
FEDEX Ground Package System, Inc
.
By DAGGETT LAW FIRM
i I)
Thomas W . Daggett
DAGGETT LAW FIRM
Chicago Title Tower, Suite 4950
16l N . Clark Street
Chicago, IL 60601
(312) 960-1600
6L-wt Gn
Thomas W . Daggett
3
RECEPVED
CLERK'S OFFICE
WY! 2 c
2006
BEFORE THE ILLINOIS POLLUTION CONTROL
Pollution
STATE
BOARDOF
Control
ILLINOISBoard
FEDEX GROUND PACKAGE SYSTEM, INC
., )
Petitioner,
)
v.
)
PCB 07-012
(UST Fund Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent .
)
SECOND WAIVER OF DECISION DEADLINE
Petitioner, FEDEX Ground Package System, Inc . ("Petitioner"), by its attorney,
Thomas W. Daggett of the Daggett Law Firm, hereby waives its right to receive the
Board's decision on its Petition in this matter by the statutory decision deadline for an
additional sixty (60) days, to be added to end of the ninety (90) day waiver it filed in
this matter on September 28, 2006 .
Respectfully submitted,
FEDEX Ground Package System, Inc .
By DAGGETT LAW FIRM
Thomas W . Daggett
DAGGETT LAW FIRM
Chicago Title Tower, Suite 4950
161 N . Clark Street
Chicago, IL 60601
(312) 960-1600
