ILLINOIS POLLUTION CONTROL BOARD
October 4, 2007
L.W. PAUL SUPPLY CO., INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 07-99
(UST Appeal)
ORDER OF THE BOARD (by T.E. Johnson):
This is an appeal of an Illinois Environmental Protection Agency (Agency) decision
denying reimbursement from the Underground Storage Tank (UST) Fund. The appeal was filed
by L.W. Paul Supply Co., Inc. (petitioner). Petitioner applied to the Agency for reimbursement
concerning petitioner’s leaking petroleum UST site located at 11120 Richland Avenue in Worth,
Cook County. This order does not address the merits of the appeal, but rather rules on
petitioner’s motion to consolidate this appeal with 14 other pending UST Fund appeals. For the
reasons below, the Board denies the motion to consolidate. In this order, the Board first sets
forth the brief procedural history of this case before turning to the motion.
PROCEDURAL HISTORY
On April 2, 2007, petitioner filed a petition asking the Board to review a March 7, 2007
determination of the Agency. The Agency denied petitioner reimbursement from the UST Fund
in the amount of $11,936.89. On April 19, 2007, the Board accepted the appeal for hearing. On
May 7, 2007, petitioner filed an open waiver of the Board’s decision deadline.
See
415 ILCS
5/40(a)(2) (2006), 35 Ill. Adm. Code 101.308, 105.114. The Agency has not yet filed the
administrative record of its determination.
On September 12, 2007, petitioner filed a motion to consolidate (Mot.) this appeal with
14 other pending UST Fund appeals. The 15 appeals are docketed and captioned as follows:
PCB 07-63 PMA & Associates, Inc. v. IEPA; PCB 07-76 2F, Inc. v. IEPA; PCB 07-82 Bob’s
Service Center, Inc. v. IEPA; PCB 07-85 T-Town Drive Thru, Inc. v. IEPA; PCB 07-99 L. W.
Paul Supply Co., Inc. v. IEPA; PCB 07-108 Reed’s Service v. IEPA; PCB 07-119 Mahr’s
Service & Sales v. IEPA; PCB 07-120 Ruth Oil Co., Inc. v. IEPA; PCB 07-126 Gateway FS, Inc.
v. IEPA; PCB 07-127 Pioneer Oil Company v. IEPA; PCB 07-128 Jahraus Oil Company, Inc. v.
IEPA; PCB 07-129 Yesley Service Company, Inc. v. IEPA; PCB 07-130 Gallaher’s Shell v.
IEPA; PCB 07-137 Russell Oil company, Inc. v. IEPA; and PCB 07-138 Watertower Marina,
Inc. v. IEPA. All 15 petitioners are represented by John T. Hundley and Mandy L. Combs of the
Sharp Law Firm, P.C. On September 27, 2007, the Agency filed a response (Resp.) opposing the
motion.
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DISCUSSION
Petitioner’s Motion to Consolidate
Petitioner seeks to consolidate 15 UST Fund appeals “for briefing, hearing and decision
of motions for summary judgment.” Mot. at 7. Petitioner argues that there is an “identity of the
issues for review” in the appeals.
Id
. at 4-5. Specifically, petitioner maintains that each appeal
involves the Agency’s reimbursement denial of the respective petitioner’s “analysis costs” based
on a lack of supporting invoices.
Id
. at 3. According to petitioner, in each appeal, the denied
amounts “had been approved for analysis costs in a previously-approved budget” and are
“established as reasonable” under Parts 732 and 734 of the Board’s UST regulations (35 Ill.
Adm. Code 732.Subpart H, 734.Subpart H).
Id
. at 3-4. Petitioner notes also that the consultant
for each petitioner has been United Science Industries, Inc.
Id
. at 6, n.2.
Petitioner emphasizes that the “essentially legal nature” of the dispute in the 15 appeals
makes them appropriate for summary judgment. Mot. at 4. According to petitioner, the same
issue is presented in 41 other UST Fund matters pending before the Agency, “for which the date
for the Agency to issue a decision has been extended so that the Agency can apply to said
matters the result which is obtained” in the 15 appeals pending before the Board.
Id
. at 5.
Petitioner asserts that “[s]eparate briefing will result in duplicative effort and filings, as
the bulk of the memoranda in each appeal will be identical.” Mot. at 6. Counsel for the 15
petitioners therefore propose to file “brief motions for summary judgment” in the appeals, other
than in T-Town Drive Thru, Inc. v. Illinois EPA
, PCB 07-85, where that petitioner has already
moved for summary judgment.
Id
. Petitioners’ counsel would “limit[] those motions to
establishment of the factual showing in the particular case, and then [] file a single consolidated
legal memorandum in support thereof.”
Id
. Petitioner argues that this approach “will result in a
more expeditious and complete determination of the issues,” will “not prejudice any party,” and
“likely will result in savings in paperwork and effort for the Agency analogous to those for
Petitioners.”
Id
. at 7.
Agency’s Response
The Agency opposes petitioner’s motion to consolidate. Resp. at 1. After noting that
motions for summary judgment are already pending in PMA
and in T-Town, the Agency states
that it agrees with petitioner that “the same or similar legal arguments would be presented” in the
other 13 appeals “if each case had to proceed separately.”
Id
. at 2. The Agency also
acknowledges that “some time and resource savings would result from Petitioner’s concept for
proceeding in these cases.”
Id
. at 3.
The Agency states, however, that with petitioner’s proposal:
work on each individual case would still have to occur. Aside from PMA and T-
Town, pleadings generated by 13 mini-motions for summary judgment would
have to be filed as well as an omnibus legal memorandum. Resp. at 3.
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The Agency also questions whether there may be a “factual nuance” in some of the 13 appeals
that would preclude summary judgment in those instances.
Id
. According to the Agency, with
the information currently before the Board, “it seems impossible to guarantee that Petitioner’s
consolidation proposal and summary judgment will dispose of all 13 appeals.”
Id
.
The Agency states that it had instead “envisioned one appeal proceeding to the Board for
a ruling on the supporting documentation issue while activity on the other appeals was held in
abeyance.” Resp. at 4, citing Turner v. Williams
, 326 Ill.App.3d 541, 547, 762 N.E.2d 70, 76
(2nd Dist. 2001) (“where several actions are pending involving substantially the same subject
matter, the court may stay proceedings in all but one and see whether the disposition of the one
action may settle the others, thereby avoiding multiple trials on the same issue”). The Agency
explains:
Once a Board ruling was issued, the parties could assess the remaining appeals
and in-house submittals to identify which ones could be resolved by agreement
and which ones still required further litigation efforts. It is likely that this
approach would save more time and resources than the proposal suggested by
Petitioner. Resp. at 4.
The Agency concludes that “[i]f the Board takes any action, it should consider staying the
balance of the appeals until a ruling on the supporting documentation question is issued.”
Id
.
Board’s Analysis
Section 101.406 of the Board’s procedural rules addresses the consolidation of claims:
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. 35 Ill. Adm. Code
101.406.
Based on the information before the Board at this time, the Board cannot find that petitioner’s
proposed consolidation satisfies Section 101.406. The 15 UST Fund appeals involve 15 different
petitioners and 15 different UST sites in various counties.
See
Broadus Oil v. IEPA, PCB 04-31,
PCB 05-43 (Consol.), slip op. at 9 (Dec. 21, 2006) (motion to consolidate UST appeals denied
based on “different parties, different facts, and different UST sites”). In addition, as the Agency
correctly points out, any number of the appeals may involve genuine issues of material fact,
making the summary judgments contemplated by counsel for petitioners inappropriate.
See
35
Ill. Adm. Code 101.516(b) (standard for summary judgment). It is the Board’s experience that
such a “factual nuance” (Resp. at 3) is not uncommon in a UST Fund appeal.
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Nor is it clear that granting petitioner’s motion would significantly aid efficiency. Even
assuming the same legal issue is presented in each case and that summary judgment could result
in each one, 15 different sets of facts would still have to first be pled by the parties and then
found by the Board. Such Board findings of fact would necessitate the Board’s review of 15
different administrative records, all before summary judgment rulings could be reached.
Moreover, the 15 appeals are not presently in the same procedural posture. Two of the appeals,
PMA and T-Town, already have summary judgment motions pending.
See
Village of Wilmette
v. IEPA, PCB 07-48, slip op. at 1 (March 15, 2007) (denying motion to consolidate UST appeals
where a summary judgment motion was pending in one but not the other),
appeal docketed sub
nom
. Village of Wilmette v. PCB and IEPA, No. 1-07-2439 (1st Dist.). Petitioners’ counsel
describe their T-Town summary judgment motion as “a more thorough motion” than what they
propose for the balance of the appeals. Mot. at 6.
Under these circumstances, the Board denies petitioner’s motion to consolidate. The
Board appreciates, however, the parties’ thoughtful considerations on how best to bring about the
“convenient, expeditious, and complete determination” of the 15 pending UST Fund appeals,
without causing “material prejudice to any party.” 35 Ill. Adm. Code 101.406. The Board
makes no finding at this time that there is an identity of issues in the 15 appeals, but notes that
according to the Agency, it may be appropriate to have a “test case” proceed to a final decision
on the merits. Resp. at 4. Petitioner suggests as much when it indicates that a Board decision on
the 15 appeals may resolve the 41 matters with the “same issue” pending before the Agency.
Mot. at 5.
Based on the representations in the pleadings, the Board encourages the parties to
consider filing, singly or jointly, motions to stay 14 of the 15 pending UST Fund appeals.
See
35
Ill. Adm. Code 101.514. To that end, the Board hearing officer is available to facilitate
discussion among the parties. Presently, the hearing officer has set a telephonic status
conference for October 29, 2007, at 10:30 a.m. in the 15 appeals. Additionally, petitioner in each
appeal has already filed an open waiver of the Board’s decision deadline. If the claimed identity
of issues does exist among the appeals, a final Board decision in a single case would then serve
as precedent for the other appeals, enhancing the prospects for their most efficient resolution.
CONCLUSION
The Board denies petitioner’s motion to consolidate this UST Fund appeal with 14 other
pending UST Fund appeals, each of which is identified in the procedural history of this order. In
separate orders, the Board today is likewise denying nearly identical motions to consolidate
brought by the respective petitioners in the other 14 appeals.
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IT IS SO ORDERED.
I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on October 4, 2007, by a vote of 4-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board