THIS FILING SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VERNON and ELAINE ZOHFELD,
)
)
Complainants,
)
)
vs.
)
PCB No. 05-193
)
(Citizen’s Enforcement, Air)
BOB DRAKE, WABASH VALLEY
)
SERVICE COMPANY, MICHAEL J.
)
PFISTER, NOAH D. HORTON, and
)
STEVE KINDER,
)
)
Respondents.
)
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Carol Webb, Esq.
Clerk of the Board
Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
100 West Randolph Street
1021 North Grand Avenue East
Suite 11-500
Post Office Box 19274
Chicago, Illinois 60601
Springfield, Illinois 62794-9274
(VIA ELECTRONIC MAIL)
(VIA ELECTRONIC MAIL)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Illinois Pollution Control Board a
REPLY TO COMPLAINANTS’ RESPONSE TO
MOTION TO STAY PROCEEDINGS
on behalf of Respondents, Wabash Valley Service
Company, Michael J. Pfister, Noah D. Horton and Steve Kinder, a copy of which is herewith
served upon you.
Respectfully submitted,
WABASH VALLEY SERVICE COMPANY,
MICHAEL J. PFISTER, NOAH D. HORTON,
and STEVE KINDER,
Respondents,
Dated: September 22, 2005
By:/s/ Thomas G. Safley
One of Their Attorneys
Thomas G. Safley
Gale W. Newton
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 22, 2005
2
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
REPLY TO COMPLAINANTS’ RESPONSE TO MOTION TO STAY PROCEEDINGS
upon:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, Illinois 62794-9274
via electronic mail on September 22, 2005; and upon:
Stephen F. Hedinger, Esq.
Hedinger Law Office
2601 South Fifth Street
Springfield, Illinois 62703
Thomas H. Bryan, Esq.
Fine & Hatfield, P.C.
520 N.W. Second Street
Post Office Box 779
Evansville, Indiana 47705-0779
by depositing said documents in the United States Mail in Springfield, Illinois, postage
prepaid, on September 22, 2005.
/s/ Thomas G. Safley
Thomas G. Safley
WVSC:002/Fil/NOF-COS – Reply to Response
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 22, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VERNON and ELAINE ZOHFELD,
)
Complainants,
)
)
vs.
)
PCB No. 05-193
BOB DRAKE, WABASH VALLEY
SERVICE COMPANY, MICHAEL J.
PFISTER, NOAH D. HORTON,
and
R,
(Citizen's Enforcement, Air)
)
)
)
)
Respondents.
)
REPLY TO COMPLAINANTS'
RESPONSE TO MOTION TO STAY PROCEEDINGS
NOW COME Respondents, WABASH VALLEY SERVICE COMPANY,
MICHAEL J. PFISTER, NOAH D. HORTON, and STEVE KINDER (hereinafter
"Respondents"), by and through their attorneys, HODGE DWYER ZEMAN,
and
pursuant to
Section
101.500(e)
of the
Illinois
Pollution Control Board's ("Board")
procedural rules, 35 Ill. Admin. Code §101.500(e), submit this Reply to Complainants'
Response to Motion to Stay Proceedings (the "Response").
1.
On
May
9,
2005,
Complainants filed their Complaint with the Board (the
"Complaint") in this matter.
2.
Approximately two weeks before that date, on April 26, 2005,
a criminal
Information (the "Information") was filed with
the United States District Court for the
Southern District of Illinois relating to
the same "incident" alleged in the Complaint. See
United States of America v. Wabash Valley Service Co., Glen S. Kinder, and Noah David
Horton, Criminal No. 05-40029-JPG, a copy of which Information is attached as an
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 22, 2005
exhibit to the Verified Motion to Stay Proceedings ("Motion to Stay") filed by
Respondents.
3.
On July 8, 2005, Respondents filed a Motion to Stay.
4.
On August 3, 2005, Complainants filed their Response.
5.
On August 15, 2005, Respondents filed a Motion for Leave
to
Reply to
Complainants' Response to Motions to Stay Proceedings (the "Motion
to Reply")
to
prevent material prejudice because i
Response, the
Complainants: ) did not
completely or accurately represent the state of the case law regarding simultaneous
crinTinal and civil proceedings involving the same subject matter and therefore incorrectly
applied the case law to the circumstances at issue here; (2) grossly
mischaracterized
statements made in the Motion
in this proceeding.
to
Stay; and, (3) asserted new facts that are not of record
6.
On September 18, 2005, the Hearing
Officer
granted
the Motion to Reply.
INCOMPLETE OR INACCURATE REPRESENTATION OF
CASE LAW AND INCORRECT APPLICATION OF CASE LAW
7.
First, in their Response, Complainants state that "`great weight' is not to
en to any particular factor, including a Fifth Amendment right, contrary
to
Respondents' argument." Response
at ý2.
(Citing
to Jacksonville Say. Bank v. Kovack,
326111. App. 3d 1131, 1136, 762 N.E.2d 1138, 1142 (4th Dist. 2002), which states:
"whether a party's fifth amendment rights are implicated is a significant factor for the
trial
court to consider in deciding whether to stay civil proceedings,
`but it is only one
consideration to be weighed against
others."'
Id. at 1136.)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 22, 2005
However, in the very next paragraph following that cited by Complainants,
the Jacksonville Sav. Bank court states: "[c]ourts have indicated that an announced
charge against a defendant wei
eavily in the defendant's favor in deciding whether to
stay civil proceedings." Id. at 1137. (Emphasis added.)
See
also Hollinger
Int'l,
Inc. v.
Hollin e, 2005 U.S. Dist. LEXIS 14437 (N.D.111. 2005) and Cruz v. Count of
Dupage, 1997 U.S. Dist. LEXIS 9220, *7-8 (N.D. Ill. 1997).
9.
In the matter at hand, the Information has been formally filed and is,
therefore, an announced charge which should weigh heavily in the defendant's favor in
deci ng whether to stay this proceeding.
10. The Complainants' statement that eat weight' is not to be given to any
ctor" is also inaccurate with regard to case law because "[w]hen there is
antial overlap of the issues involved in the civil
and criminal proceedings, `the risk
ing
a party's Fifth
Amendment rights
is rather severe."' Hollinger Int'l, Inc., 2005
U.S. Dist. LEXIS 14437 (N.D. 111, 2005). (Emphasis added.) See also Admiral Ins. Co.
v. Federal Sec., 1996 U.S. Dist. LEXIS 3639 (N.D. 111. 1996) (stating that "[a] stay of
civil proceedings is most
likely
to
e
granted where
the civil and criminal actions involve
the same subject matter."). (Emphasis added.)
11. As discussed in paragraphs 13-15 below, the matter before the Board and
the criminal matter involve a substantial overlap
of
issues
and are based on the same
subject matter; therefore,
the
Board
should grant Respondents' Motion to Stay.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 22, 2005
MISC
TERIZATIONS
12.
Second,
Complainants further state that Respondents' "own
documentation shows"
that no nexus exists between the complaint before the Board,
which is based on violations
of air pollution laws, and the Information which is based on
the use of "a registered pesticide in a manner inconsistent with
its
labeling."
Response at
13.
13. The Complaint actually alleges that in Hamilton County, Illinois, "on or
about
May 8, 2000, . . . [Respondents] sprayed agricultural chemicals . . . in a manner that
allowed the agricultural chemicals to ...
drift and cloud onto and across the adjacent
rp
opertx owned and occupied by the [Complainants]." Complaint at 3. (Empha
added.)
14. The
Information
actually
alleges that "on or about May 8, 2000" the
defendants therein caused a registered pesticide
"to be used in a manner inconsistent with
its labeling - that is ... to be applied to a field . . . at a time when the wind speed was
approximately 20 m.p.h. . . ." Information at l. (Emphasis added.)
15. Since both the Complaint and the
Information involve the same alleged
incident that (1) occurred on May 8, 2000; (2) in Hamilton County, Illinois; (3) involved
application of agrichemicals; and (4) alleged drifting or blowing of the agrichemicals, a
substantial overlap of the
issues involved in the Board and criminal proceedings exists,
and the actions are based on the same subject
matter.
16. In addition, Complainants state that granting the stay
would
cause delay
that would soon create problems of proof and stale evidence. However, Complainants
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 22, 2005
filed their Complaint with the Board five years and one day after the alleged activities
occurred. The Complaint was only saved from being filed after the end of the statute of
limitations by a technical rule that does not allow a statute of limitations to end on a
weekend. It is
disingenuous
for
the Complainants
to wait a full five years to file their
Complaint and then demand that the Board "expedite this case for as quick a resolution
on the merits as possible." Response at 15.
NEW FACTS
17. Third,
Complainants
state that recently a local (southern Illinois) television
station aired a report on the alleged overdrift incident and that the report indicates strong
public interest in the case (Response at 18); however, Complainants have provided no
information that would allow Respondents or the Board to verify this allegation.
18.
Complainants also state that "[c]ounsel for Comp
is has been in
communication with both the Illinois Attorney General's Office and the Illinois
ronmental Protection Agency, both of which indicated an interest in this case and its
outcome." Response at 18. However, Comp
ate that the Attorney
General's Office
has
brought a complaint against Respondents, and the Board can take
official notice that the State has filed no such action before the Board.
19. Finally, Complainants allege that the "May 2000 incident was the second
direct discharge onto
Complainants
property." Response
at 19. However, any such
incident is not
identified in the Complaint and would, in any case, be irrelevant and
barred from
cons eration by the applicable statute of limitations. See generally the
Complaint. "This case" does not involve any alleged "discharge" prior to May 2000.
5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 22, 2005
WHEREFORE, Respondents, WABASH VALLEY SERVICE COMPANY,
MICHAEL,
J.
PFISTER, NOAH D. HORTON, and STEVE KINDER, respectfully move
the Illinois Pollution Control
Board to stay the proceedings in this matter until the
conclusion of the criminal matter
referred
to
herein, and to award Respondents
all
other
relief just and proper in the premises.
Respectfully submitted,
WABASH VALLEY SERVICE
COMPANY, MICHAEL J. PFISTER,
NOAH D. HORTON, and STEVE KINDER
Respondents,
Dated: September 22, 2005
By:/s/ Thomas G. Safley
_°.e
One of Their Attorneys
Thomas
G. Safley
Gale W. Newton
HODGE
DWYER
ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
WVSC-0
02\FilingsýReply
to Response to Motion to Stay
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 22, 2005
