RECE~VED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERKS 

OFFICE

MAY 2 6 2004

PEOPLE OF THE STATE OF ILLINOIS,             

STATE OF ILLINOIS

iF

)

Pollution

Control Board

v.

)

No. PCB 96-98

SKOKIE VALLEY ASPHALT, CO., INC.,

an Illinois corporation,

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.

NOTICE OF FILING

TO: Mr. David S. O’Neill  

Ms. Carol Sudman

5487 N. Milwaukee Ave. Hearing Officer

Chicago, IL 60630    

Illinois Pollution Control Board

600 S. 21~Street, Suite 402

Springfield, Illinois 62704

PLEASE TAKE NOTICE that the Complainant, PEOPLE OF THE STATE

OF ILLINOIS, filed with the Illinois Pollution Control Board,

COMPLAINANT’S MOTION TO STRIKE RESPONDENTS’ POST TRIAL MOTION TO

STRIKE AND OBJECTIONS TO COMPLAINANT’S CLOSING ARGUMENT AND REPLY

BRIEF, a true and correct copy of which is attached hereto and is

hereby served upon you.

PEOPLE OF THE STATE OF ILLINOIS

Ex rel. 

LISA MADIGAN, Attorney

General of th S ate of Illinois

BY:

MITCHELL

L. COHEN

Assistant Attorney General

Envirbnmental Bureau

188 West Randolph, 

20th 

Floor

Dated:  May 26, 2004       

Chicago, IL 60601

(312) 814-5282

THIS FILING IS SUBMITTED ON RECYCLED PAPER

RECE$VE.D

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 

CLERK’S OFFICE

PEOPLE OF THE STATE OF ILLINOIS, 

)

STATE

MAY

262004

ILLINOIS

Complainant,

)

Pollution

Control Board

)

No. PCB 96-98

SKOKIE VALLEY ASPHALT, CO., INC.,

)

Enforcement

an Illinois corporation,

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.

COMPLAINANT’S MOTION TO STRIKE

RESPONDENTS’ POST TRIAL MOTION TO STRIKE AND OBJECTIONS TO

COMPLAINANT’S CLOSING ARGUMENT AND REPLY BRIEF

Complainant, PEOPLE OF THE STATE OF ILLINOIS, 

ex rel. 

LISA

MADIGAN, Attorney General of the State of Illinois, pursuant to

Sections 101.500 and 101.502 of the Illinois Pollution Control

Board Regulations (“Board Regulations”), 35 Ill. Adm. Code

101.500 and 101.502, hereby moves Hearing Officer Sudman to

Strike Respondents’ Post Trial Motion to Strike and Objections to

Complainant’s Closing Argument and Reply Brief (“RMS”). In support

of this Motion to Strike RMS, Complainant states as follows:

1. This Motion to Strike RMS is properly before Hearing

Officer Sudman since it is 

“ . . .

not dispositive of the

proceedings.” 35 Ill. Adm. Code 101.502.

2. This enforcement case was already tried before Hearing

Officer Sudman October 30 and 31, 2003. See Hearing Transcripts.

3. On October 31, 2003, Hearing Officer Sudman issued the

last Order in this enforcement case allowing for Complainant’s

Closing Argument, Respondents’ Closing Argument, Complainant’s

Rebuttal Argument, and nothing else. Hrg. Tr. at 522.

Complainant, The People of the State of Illinois filed their

Closing Rebuttal Argument and Reply Brief April 15, 2004, in

accordance with Hearing Officer Sudman’s Order.

4. The People of the State of Illinois’ Closing Rebuttal

Argument and Reply Brief is not a pleading. 735 ILCS 5/2-601, 2—

602 and 2-603 (2002). A pleading is “tllhe document containing

the factual allegations that each party is required to

communicate to the opponent before trial 

. . . .“

Black’s Law

Dictionary.

5. Respondents cannot rely on Section 101.506 of the Board’s

Procedural Rules, 35 Ill. Adm. Code 101.506, that allows

Respondents to strike, dismiss, or challenge a “pleading” before

hearing to strike ‘a Closing Argument after hearing.

6. Respondents file RMS May 17, 2004, over six months after

trial.

7. Respondents did not seek leave to file anything after

their Closing Argument, the hearing and arguments in this

enforcement case are finished, and there is no authority for

Respondents to file anything else at this time.

8. Therefore, RMS should be stricken, and this enforcement

case should proceed to Final Board Order.

9. If somehow, the People of the State of Illinois’s Closing

Rebuttal Argument and Reply Brief is considered a pleading such

that Respondents can file a Motion to Strike pursuant to Section

101.506 of the Board’s Procedural Rules, 35 Ill. Adm. Code

10.1.506, six (6) months after hearing, RMS still should be

stricken.

10. Complainant, the People of the State of Illinois, filed

this enforcement action against Respondents.

11. Complainant has the burden in an enforcement action to

show that Respondents violated the Illinois Environmental

PrOtection Act and related rules and regulations. 415 ILCS

5/31 (e) (2004) 

12. “In an enforcement action, the complainant must prove

that the respondent violated the Act or the rules, regulations,

permits or terms and conditions by a preponderance of the

evidence. People v. Fosnock, PCB 41-1, slip op. at 19 (Sept. 15,

1994) 

.“

Village of South Elgin v. Waste Management of Illinois,

Inc., PCB 03-106, p. 2 (February 20, 2003).

13. Since Complainant has the burden of proof in this

enforcement action, the People of the State of Illinois get the

last word.

14. Respondents do not get another chance to argue their

case, 

which is exactly what RMS does, after Complainant filed

their Closing Rebuttal Argument and Reply Brief.

15. RMS not only should be stricken, it should not even be

considered, or read by Board.

CONCLUSION

RMS should be stricken. There is no authority to file such a

Motion six months after the close of evidence in this enforcement

action. Further, RMS should not even be considered since

Complainant has the burden of proof and already had filed their

Closing Rebuttal Argument and Reply Brief.

WHEREFORE, Complainant, People of the State of Illinois,

asks Hearing Officer Sudman for the following relief:

1. Strike RMS such that it is not considered by the Board

in this enforcement case;

2. Allow AAG5 Cohen and Murphy to amend their fee petitions

within the People of the State of Illinois’ Closing Rebuttal

Argument and Reply Brief, to reflect the following:

AAG Cohen   

May, 2004   

6 hours Reviewing Resp.’s Motion

to Strike Closing,

discussions w/ co-counsel

Research & drafting

Motion to Strike RMS

AAG Murphy  

May, 2004   

3 Hours Reviewing Resp. ‘s Motion

to Strike Closing,

discussions w/ co-counsel

Reviewing Motion to

Strike RMS

and

3.  Grant such additional relief as the Board deems

appropriate and just.

PEOPLE OF THE STATE OF ILLINOIS

Ex i-el. 

LISA MADIGAN, Attorney

General of the State of Illinois

MATTHEW J. DUNN, Chief

Environmental Enforcement/Asbestos

Litigation Division

ROSEMARIE CAZEAU, Chief

Environmental Bureau

BY:_____

MITCHELLBERNARD

J.L. MURPHY,C

HEN

JR.

Assistant Attorney General

Environmental Bureau

188 West Randolph, 

20th

Floor

Chicago, IL 60601

(312) 814-5282

(312) 814-3908

5

CERTIFICATE OF SERVICE

I, MITCHELL L. COHEN, an Assistant Attorney General, do

certify that I caused to be mailed this 

26th 

day of May 2004, the

foregoing 

COMPLAINANT’S MOTION TO STRIKE RESPONDENTS’ POST TRIAL

MOTION TO STRIKE AND OBJECTIONS TO COMPLAINANT’S CLOSING ARGUMENT

AND REPLY BRIEF 

and NOTICE by first-class mail in a postage

prepaid envelope and depositing same with the United States

Postal Service located at 100 West Randolph Street, Chicago,

Illinois, 60601.

MITCHELL 

COHEN

I:\MLC\SkokieValley\MoToStrikeRsMoToStnkcClosingwpd