BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
LERK S OFFICE
VERNON and ELAINE ZOHFELD,
)
Complainants,
)
)
STATE
OCT2~
or
ILLINOIS
2QQ5
Pollution Contro: Board
v.
)
PCB
05-193
)
(Citizen’s
Enforcement, Air)
BOB DRAKE, WABASH VALLEY SERVICE
)
COMPANY, MICHAEL J. PFISTER,
)
NOAH D. HORTON, and STEVE KINDER,
)
)
Respondents.
)
MOTION TO STRIKE
NOW COME Complainants, VERNON and ELAINE ZOHFELD, through their
undersigned attorney, and move this Board to strike the Reply to Complainants’
Response to Motion to Stay Proceedings filed by and on behalf of Respondents
WABASH VALLEY SERVICE COMPANY, MICHAEL J. PESTER, NOAH D.
HORTON, and STEVE KINDER (hereinafter “WABASH VALLEY
RESPONDENTS”). In support ofthis motion, Complainants state as follow:
1.
Before this Board are motions to stay this proceeding filed separately by
the Wabash Valley Respondents and by Respondent Drake. These motions all request a
stay of this proceeding in light of criminal proceedings pending in the United States
District Court forthe Southern District of Illinois which might affect two of the
Respondents.
2.
Following the filing of Respondents’ motions to stay, Complainants filed
their response. Thereafter both the Wabash Valley Respondents and Respondent Drake
requested leave to file a reply, upon the claimed premise that Complainants’ response
contained misrepresentations of law orfact, and mischaracterizations of written materials
in this case.
3.
Respondent Drake never filed a reply, and accordingly his assertions of
mischaracterizations and misrepresentations were clearly false.
4.
The Wabash Valley Respondents did file a reply, but they fail to have
identified any misrepresentations or mischaracterizations. In fact, the allegations of
misrepresentations and mischaracterizations were merely a ploy to obtain the hearing
officer’s leave to file a reply (which otherwise is not allowed pursuant to this Board’s
procedural rules), which clearly justifies striking the reply.
5.
At paragraphs 7-11 of their reply, the Wabash Valley Respondents claim
that Complainants mischaracterize the law by suggesting that no case states that “great
weight” is to be given to any particular factor in determining whether to grant a stay such
as this. However, not a single case cited by the Wabash Valley Respondents ever states
that “great weight” is to be given to the factor they identify. The fact is that, as
specifically argued in Complainants’ response brief, there are five factors, and not a mere
single factor which a court must consider in deciding whether to grant such a stay.
Incredibly, in fact, despite suggesting that Complainants have mischaracterized the law,
the Wabash Valley Respondents themselves cite a case (also relied upon in
Complainants’ response) in which the requested stay was denied in spite ofthe fact that
an actual indictment had been handed down! There simply was no “mischaracterization.”
6.
Paragraphs 9-11 of the Wabash Valley Respondents’ reply argue that
“substantial overlap” exists between the civil and criminal cases. However, that
observation has nothing to do with the point being addressed in Complainants’ response,
2
but instead is a red herring inserted solely for the purpose of obtaining leave to get one
last argument before this Board (an argument that should have been included in
Respondents’ original motion.) The Wabash Valley Respondents also falsely claim that
Complainants mischaracterize the pleadings by stating that no nexus exists between the
allegations of the criminal information and the complaint in this case. The fact is,
though, that whereas Complainants in this case seek relief under the Illinois air pollution
statute and regulations for trans-boundary air pollution, the federal criminal case concerns
requirements set forth on a pesticide label, and the Respondents’ failure to have complied
with those. These are two completely different laws, two completely different regulatory
schemes, two completely different legislative intents, and two completely different sets of
prima facie case elements. Among many other things, for instance, the federal criminal
proceedings must include proof of the contents ofthe pesticide label, but that issue is
completely irrelevant to the basic elements of Complainants’ case before this Board;
conversely, whereas Complainants will prove to this Board that Respondents’ acts or
omissions caused transboundary dispersal of pollutants, the criminal case can proceed to
conviction without any such proof Complainants have clearly not misrepresented
anything about these regulatory schemes. At best, the Wabash Valley Respondents’ reply
points at three arguments concerning factual similarities between the core events giving
rise to both actions, but that by no means represents any “mischaracterization” of those
factual assertions by Complainants. Simply put, the Wabash Valley Respondents have
fabricated mischaracterizations in order to present to this Board further arguments that
should have been included in their motion.
3
7.
The Wabash Valley Respondents also, in paragraph 16 of their reply,
claim that Complainants were “disingenuous” in arguing to this Board that a stay of these
proceedings would cause prejudice by further delaying the hearing of this matter, which
is already five years old. Apparently the Wabash Valley Respondents were surprised to
discover that the actions giving rise to Complainants’ action occurred in the year 2000,
but there is no need for such surprise, since that was not only part of Complainants’
complaint in this case, but in fact is a part of the very argument cited by the Wabash
Valley Respondents as being “disingenuous”! The very sentence cited by the Wabash
Valley Respondents notes that the case is five years old, and further delay would
exacerbate stale proof. There is simply no justification for the Wabash Valley
Respondents’ claim that the Complainants have demanded that the Board “expedite this
case for a quick resolution on the merits as possible” (Wabash Valley Respondents’
Reply, at 5, quoting Complainants’ response at 15). The Complainants have not asked
this Board for any relief relative to the Wabash Valley Respondents’ motion. The burden
is on them, not Complainants, to establish that a stay would be proper, and there is
virtually nothing inappropriate about reminding this Board that further delay may cause
further problems.
8.
Paragraphs 17 and 18 of the Wabash Valley Respondents’ reply complain
about arguments made by Complainants concerning the public interest in this matter and
in an expeditious resolution of this case. According to the Wabash Valley Respondents,
they have the right to address these matters because these were “new facts” not
previously cited in this case. Once again, though, the Wabash Valley Respondents
conveniently forget that the burden was on them with respect to their motion to stay.
4
They provided virtually no factual support for their bald assertion that there is no public
interest in this case, and that assertion defies both logic and fact. There is now no
justification for the Wabash Valley Respondents abusing this Board’s grant of leave to
file a reply in order to make assertions that should have been made in their motion.
9.
Finally, the Wabash Valley Respondents, having attached to their motion
to stay the Complainants’ civil complaint filed in the Hamilton County Circuit Court,
now backtrack and request that this Board not consider the information included in that
complaint. Complainants pointed out, in their response, that earlier incidents of similar
air pollution events have been associated with these Respondents, as is stated in that civil
complaint. The Wabash Valley Respondents inappropriately utilize the avenue of the
reply, which was supposed to address only mischaracterizations and misrepresentations,
to attack the factual information they themselves provided to this Board.
10.
The reply should be stricken. No basis exists for the Respondents to have
filed it in the first place. The reasons the Wabash Valley Respondents cited as their need
to file a reply have proven false, and this Board’s procedural rules do not allow for the
filing ofthis document.
WHEREFORE, Complainants, VERNON and ELAINE ZOHFELD, request that
this Board strike the “Reply to Complainants’ Response to Motion to Stay Proceedings”
filed by Respondents WABASH VALLEY SERVICE COMPANY, MICHAEL J.
PFISTER, NOAH D. HORTON, and STEVE KINDER, and deny the motions to stay this
case, and direct the hearing officer to promptly set this matter for discovery and pertinent
litigation activities.
5
Respectfully submitted,
Vernon and Elaine Zohfeld,
Complainants,
By their attorney,
HEDI~FI4
~
/
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
6
PCB 05-193
)
(Enforcement, Air)
)
)
)
)
)
OCT 2 ~l2005
STATE OF ILLINOIS
Pollution Control Board
NOTICE OF
FILING AND PROOF OF SERVICE
The undersigned certifies that an original and nine copies of the foregoing Motion
to Strike and of this Notice ofFiling and Proof of Service were served upon the Clerk of
the Illinois Pollution Control Board, and one copy to each of the following parties of
record in this cause by enclosing same in an envelope addressed to:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Suite 11-500
Chicago, IL 60601
Thomas G. Safley
Gale W. Newton
Hodge Dwyer Zeman
3150 Roland Avenue
P.O. Box
5776
Springfield, IL 62705-5776
Carol Webb, Esq., Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, IL 62794-9274
Thomas H. Bryan
Fine & Hatfield, RC.
520 N.W. Second Street, P.O. Box 779
Evansville, IN 47705-0779
with postage fully prepaid, and by depositing said envelope in a U.S. Post Office Mail
Box in Springfield, Illinois before 5:30 p.m. on the.~~~~ayof October, 2005.
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
This document prepared on recycled paper
BEFORE THE ILLINOIS POLLUTION
VERNON and ELAINE ZOHFELD,
v.
CONTROL BOARDLERK’s
RECEIVED
OFFICE
Complainants,
)
)
)
)
)
BOB DRAKE, WABASH VALLEY SERVICE
COMPANY, MICHAEL J. PFISTER,
NOAH D. HORTON, and STEVE KINDER,
Respondents.
7
