ILLINOIS POLLUTION CONTROL BOARD
November 2, 2006
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
SKOKIE VALLEY ASPHALT, CO., INC.,
EDWIN L. FREDERICK, JR., individually
and as owner and president of SKOKIE
VALLEY ASPHALT, CO., INC., and
RICHARD J. FREDERICK, individually and
as owner and vice president of SKOKIE
VALLEY ASPHALT, CO., INC.,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
PCB 96-98
(Enforcement – Water)
ORDER OF THE BOARD (by T.E. Johnson):
This matter is before the Board on a motion for sanctions filed by the Skokie Valley
Asphalt Co., Inc., Edwin L. Frederick, Jr., and Richard J. Frederick (respondents) on October 10,
2006. The People of the State of Illinois (People) filed a response to the motion on October 13,
2006. For the reasons explained more fully below, the Board denies the respondents’ motion for
sanctions.
PROCEDURAL BACKGROUND
On September 2, 2004, the Board issued an order in this matter finding that the
respondents violated the Environmental Protection Act (Act) (415 ILCS 5/1
et seq
. (2004)) and
Board regulations. The Board ordered the respondents to pay a civil penalty of $153,000, but
withheld a decision regarding attorney fees and costs until the matter was fully addressed by the
parties.
People v. Skokie Valley Asphalt, Co., PCB 96-98, slip op. at 1 (Sept. 2, 2004). After a
lengthy series of pleadings, the Board issued an order on September 7, 2004, setting up a detailed
pre-hearing schedule and directing the hearing officer to schedule a hearing no later than
December 22, 2006.
People v. Skokie Valley Asphalt, Co., PCB 96-98, slip op. at 8 (Sept. 7,
2004). In that order, the Board noted that no additional discovery requests would be allowed.
Id.
On October 6, 2006, the Board’s hearing officer set this matter for a hearing to occur on
December 12, 2006.
RESPONDENTS’ MOTION FOR SANCTIONS
In its motion, the respondents assert that the People failed to file and serve new responses
to the pending written discovery by September 19, 2005, as ordered by the Board. Mot. at 4.
The respondents contend that the People repeatedly stated to both the respondents and the
2
Board’s hearing officer that it had no intention of complying with the Board order of September
7, 2006, and would not be filing and/or serving new responses to the pending written discovery
that had been requested by the respondents.
Id.
The respondents argue that they have been materially prejudiced by the failure of the
People to comply with the Board’s order and to respond to written discovery. Mot. at 4. The
Respondents assert that they do not have the materials required to properly depose the witnesses
for the People, and that the respondents’ opinion witness does not have the information she
requires to form her opinion and prepare her expert report.
Id.
The respondents argue that in accordance with the language in the Board’s order of
September 7, 2006, the Board is required to impose sanctions against the People. Mot. at 4. The
respondents contend that by stating that sanctions “will” be imposed against a party, the party
that fails to abide by the schedule, the Board eliminated any discretion with respect to whether or
not sanctions would be imposed.
Id.
The respondents contend that since the People
unreasonably failed to comply with a Board order entered into under Supreme Court Rules
controlling discovery and the issue is material to the claims and defenses asserted, that the Board
should apply S. Ct. Rule 219 (c)(v) to dismiss this action with prejudice. Mot. at 5. In the
alternative, the respondents urge the Board to bar any and all testimony and strike all pleadings
involving issues addressed by the discovery requests of the Respondents in accordance with
Section 101.800 of the Board's procedural rules.
Id.
PEOPLE’S RESPONSE
In response, the People argue that the motion for sanctions should be stricken on
procedural grounds or denied on substantive grounds. Resp. at 1. The People assert that the
motion for sanctions does not comport with the clear and unambiguous pre-hearing schedule set
forth in the Board's September 7, 2006 order and the requirement to attempt to informally
resolve discovery disputes before seeking Board intervention set forth in the hearing officer's
February 8, 2006 order.
Id.
Further, the People contend that the motion seeks extraordinary
relief without stating any legal or factual basis and should be denied because it is without merit.
Id.
The People assert that as a threshold issue, respondents’ motion for sanctions is not
addressed by the pre-hearing schedule established by the Board and should be stricken. Resp. at
5. The People contend that respondents’ motion for sanctions is based on alleged discovery
violations, is a discovery pleading on its face, and that the Board’s September 7, 2006 order
makes clear how such pleadings are to be treated. Resp. at 4-5. The People argue that the Board
ruled that discovery pleadings, including replies to the objections, that are not addressed by the
schedule would not be allowed.
Id.
Further, the People argue that, viewed in light of the Rule 101.800(c) factors to be
considered in imposing sanctions, respondent’s motion for sanctions is completely without merit.
Resp. at 5. The People note that the Rule 101.800(c) factors include: (a) the relative severity of
the refusal or failure to comply; (b) the past history of the proceeding; (c) the degree to which the
proceeding has been delayed or prejudiced; and; (d) the existence or absence of bad faith on the
3
part of the offending party or person. Resp. at 5-6. The People argue that none of these factors
support any sanctions against the People.
Id.
The People contend they have never missed a deadline established by rule or order, and
have done nothing short of trying to resolve this case through numerous attempts at informal
discovery dispute resolution and a March 30, 2006 motion for final order. Resp. at 7. The
People argue that there is no evidence of any bad faith on the part of the People in this case.
Id.
The People further assert that the motion does not specifically identify any withheld
information or documents that could conceivably prevent them from properly preparing for
hearing on December 12, 2006, but that respondents’ merely make vague, conclusory and
unsupported allegations regarding the People's alleged discovery violations and the Respondents’
inability to prepare for hearing which fall far short of the Rule 101.800(c) factors. Resp. at 7.
The People argue that the issue of the People's discovery objections that forms the basis
for the Motion for Sanctions is identical in every way to the issue that was already conclusively
decided by the Board on September 7, 2005, and the hearing officer on February 8, 2006. Resp.
at 7.
DISCUSSION
The Board may impose sanctions for any unreasonable failure to comply with a Board or
hearing officer order pursuant to Section 101.800 of the Board’s procedural rules. 35 Ill. Adm.
Code 101.800. The respondents argue that they have been materially prejudiced by the failure
of the People to comply with the Board’s order and to respond to written discovery. This
argument is based on the theory that the People’s decision not to file any additional discovery
responses was in contravention of the Board’s September 7, 2006 order.
The Board finds that the People did not fail to comply with the September 7, 2006 Board
order. That order allowed for new responses to outstanding discovery requests to be filed on or
before September 19, 2006. However, the order did not direct any of the parties to file a new
response, but merely provided an opportunity to do so. Neither the People nor the respondents
violated the Board order by opting not to file additional discovery responses. The Board notes
that pursuant to the schedule set forth in the September 7, 2006 order, the respondents could have
filed objections to the People’s existing discovery responses but did not avail themselves of that
opportunity.
In addition, the Board cannot see how the respondents have been prejudiced in this
instance. Respondents have been able to conduct extensive written discovery on the fee petition,
and may still conduct depositions prior to the hearing on the fee petition itself. Respondents
have had ample opportunity to pursue its claims on the fee petition. Over two years have passed
since the Board initially issued the September 2, 2004 order directing the respondents to pay a
civil penalty of $153,000, but withholding a decision regarding attorney fees and costs until the
matter was fully addressed by the parties.
People v. Skokie Valley Asphalt, Co., PCB 96-98, slip
op. at 1 (Sept. 2, 2004). Any perceived failure of the respondents to fully address the People’s
fee and cost petition during this time is a problem solely of the respondents’ own making.
4
Thus, the Board finds that the People have abided by the schedule set forth in the
September 7, 2006 order, and sanctions are not warranted. The respondents’ motion for
sanctions is denied.
CONCLUSION
The Board denies the respondents’ October 10, 2006 motion for sanctions. The parties
and the hearing officer are directed to proceed expeditiously to hearing in this matter.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on November 2, 2006, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
