BEFORE THE ILLINOIS POLLUTION CONTROL BOARD REC~VED
CLER~c~OFF!CE
PEOPLE OF THE STATE OF ILLiNOIS,
))
STATE
JUN
OF
2 7
ILLINOIS
2003
Complainant,
)
Pouuti0~Control Board
)
PCB 96-98
)
v.
)
Enforcement
)
)
SKOKIE VALLEY ASPHALT, CO., an Illinois
)
corporation, EDWiN L FREDERICK, JR.,
)
individually and as owner and President of Skokie )
ValleyAsphalt Co., Inc., and RICHARD J.
)
FREDERICK, individually and as owner and Vice )
President of Skokie Valley Asphalt Co., Inc.
)
)
Respondents.
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RESPONDENT’S
MOTION FOR RECONSIDERATION OF THE
BOARD’S ORDER
OF JUNE 5, 2003
The Respondents, SKOKIE VALLEY ASPHALT, CO., 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 ofSkokie Valley
Asphalt Co., Inc., by and through their attorney, David S. O’Neill, herein moves the Board for
reconsideration of its Order ofJune
5,
2003. In support ofits position, the Respondents states as
follows:
PROCEDURAL HISTORY
I.
On July 26, 2002, the People ofthe State of Illinois filed a second amended complaint
against the named Respondents in the above-captioned complaint.
2.
On December 20, 2002, the Respondents properly filed a response to the Complainant’s
seconded amended complaint entitled “Respondent’s Answer and Affirmative Defense to
Complainant’s Second Amended Complaint” to clearly indicate that the Respondent was
filing an answer and one, single affirmative defense with the affirmative defense based an
a theory a laches and equitable estoppel.
3.
By a hearing officer order dated February 19, 2003, the hearing officer established a new
discovery schedule for this matter that stated in relevant part that all written discovery in
this matter was to be completed within ninety days after the Board ruling on the motion
for summary judgment.
4.
On April 18, 2003, the Complainant filed a Motion to Dismiss the Respondents’
Affirmative Defense.
5.
On April 23, 2003, the Respondents filed the “Respondents’ Motion to Dismiss 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 ofSkokie
Valley Asphalt Co., Inc.”.
6.
On April 30, 2003, the Respondents filed a Response to Complainant’s Motion to Strike
or Dismiss Respondent’s Motion to Dismiss.
7.
On May 7, 2003, the Complainant filed a Motion for Leave to File a Reply and its Reply
to Respondents’ Response to Complainant’s Motion to Strike or Dismiss Respondents’
Motion to Dismiss.
8.
On May 7, 2003, the Complainant filed a Motion to Strike Respondents’ Motion to
Dismiss Edwin L. Frederick and Richard J. Frederick, or, in the Alternative
Complainant’s Response to and Request to Deny Respondents’ Motion to Dismiss Edwin
L. Frederick and Richard J. Frederick.
9.
On June
5,
2003, the Board issued an Order in which the Board statedthat it struck the
first and second affirmative defenses, but allowed the third affirmative defense to stand.
The Board also denied the Respondents’ motion to dismiss Edwin L. Frederick, Jr. and
Richard J. Frederick from the complaint.
ITEMS FOR RECONSIDERATION
A.
The Board mistakenly struck arguments in favor ofthe Respondents’ sole
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affirmative defense and has failed to affirm the Respondents’ sole affirmative
defense based on laches and equitable estoppel.
In
the “Conclusion” ofits order ofJune
5,
2003, the Board states that the “first two
affirmative defenses are stricken but the third affirmative defense remains”. (Order at 7.)
2.
In the Response ofDecember 20, 2002, the Respondents clearly state that they are
offering one, singular affirmative defense. This intention is stated in the title ofthe filing
which is entitled “Respondent’s Answer and Affirmative Defense to Complainant’s
Second Amended Complaint” (Response at 1) and not “Respondent’s Answer and
Affirmative Defenses to Complainant’s Second Amended Complaint”. There is nothing
in the title ofthe filing to allow the Board to conclude that more than one affirmative
defense is being raised.
3.
The Respondents’ intent to file one, sole affirmative defense is reiterated in the subtitle to
the Affirmative Defense section ofthe Response that is clearly titled “Affirmative
Defense” (Response at 7) and not “Affirmative Defenses”. There is nothing in the
subtitle ofthe affirmative defense section of the Response to allow the Board to conclude
that more than one affirmative defense is being raised.
4.
The Respondents’ intent to file one, sole affirmative defense is again reiterated in the
opening sentence to the Affirmative Defense section ofthe Response that clearly states
“As an affirmative defense to the Complainant’s Second Amended Complaint...”
(Response at 7) and not “As affirmative defenses to the Complainant’s Second Amended
Complaint...”.
5.
The argument for the affirmative defenses is expressed in three paragraphs. The first two
paragraphs ofthe affirmative defense clearly state the requisite elements of the defense of
laches
—
lack ofdiligence and resultant prejudice. (Response at 7).
6.
The third paragraph clearly states the affirmative defense that is supported by the
allegations of the first two paragraphs
—
ladies which is an affirmative defense under the
doctrine ofequitable estoppel. (Response at 7).
7.
In its order, the Board states that the “first two affirmative defenses are stricken but the
third affirmative defense remains”. In light of the fact that only one affirmative defense
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has been raised, the Board’s Order is meaningless.
8.
Although not clearly stated, the Board appears to strike paragraphs 1 and 2 of the
Respondents’ argument for the affirmative defense (Order at
5).
These paragraphs
contain materials essential to establish the Respondents’ affirmative defense based on
laches under the doctrine ofequitable estoppel.
9.
Wherefore, the Respondents respectfully request the Board to reconsider the sections of
its Order of June
5,
2003, that apparently strike the arguments in favor ofthe
Respondents’ affirmative defense and instead modif~iits Orderto allow the Respondents’
sole affirmative defense to stand as argued.
B.
The Respondents’ Motion to Dismiss is timely filed because it
is
not subject to the
timing limitations of Section 101.506 the Board’s Procedural Rules.
In
its order ofJune
5,
2003, the
Board states that “Skokie Valley motion was untimely
filed” (Order at 7) and incompletely states that “Section 101.506 ofthe Board’s
procedural rules provide that all motions to strike, dismiss orchallenge the sufficiency of
any pleading filed with the Board must be filed within 30 days after the service of the
challenged document” (Order at 7).
2.
Section 101.506 states, in its entirety, that “all! motions to strike, dismiss or challenge
the sufficiency ofany pleading filed with the Board must be filed within 30 days after the
service ofthe challenged documents, unless the Board determines that material prejudice
would result”. The section only applies to motions attacking the sufficiency ofa pleading
and not to any motion pertaining to the pleading.
3.
The Respondents’ Motion to Dismiss 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 ofSkokie Valley Asphalt Co., Inc., filed by the
Respondents on April 23, 2003, is not a motion attacking the sufficiency ofthe pleading
filed with the Board. It is, instead, a motion to dismiss two ofthe named Respondents
based on the equitable doctrine oflaches.
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4.
As a result, this motion is not governed by the limitations invoked by Section 101.506 of
the Board’s Procedural Rules. (Motion at 2..)
5.
The Board’s mistakenly applied the time limitations of Section 10 1.506 ofthe Board’s
Procedural Rules to this situation.
6.
The Respondents’ Motion to Dismiss 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 ofSkokie Valley Asphalt Co., Inc. was, in fact, properly
and timely filed.
7.
Even if the Board determines that Section 101.506 applies to the Respondents’ motion, in
a matter where the full dismissal oftwo ofthe named Respondents is at issue, the fact
that “material prejudice would result” is obvious.
8.
Section 101.506 clearly states that the time limitation does not apply if “material
prejudice would result”.
9.
The resultant material prejudice makes the Board’s application of Section 101.506
inappropriate.
10.
Wherefore, the Respondents respectfully request the Board to reconsider the sections of
its Order of June
5,
2003, that denies the Respondents’ Motion to Dismiss Edwin L.
Frederick, Jr., Individually and as Owner and President ofSkokie Valley Asphalt Co.,
Inc. and Richard J. Frederick, Individually and as Owner and Vice President ofSkokie
Valley Asphalt Co., Inc.
C.
The Respondents’ Motion to Dismiss the Respondents Edwin L. Frederick, Jr. and
Richard J. Frederick should be allowed.
1.
In
its
Order ofJune
5,
2003, the Board states that “even if the
motion were properly
before the Board, the Motion to dismiss would
be denied” (Order at 7) because “Skokie
Valley has
not proved the elements of
laches...” (Order at 7).
2.
The basic elements
of laches
are lack ofdue diligence by a party asserting a claim and
prejudice to the opposing party. People v.
Royster-Clark
Inc., PCB 02-8 at 6
(January 24,
2002) citing Van
Milligan
v. Board of Fire and Police
Commission, 158 ILL.2d at 89,
5
630 N.E. 2d at 833.
4.
Because the Movant is asking the Board to apply the equitable doctrine fo laches against
a government agency and because the Movants are not arguing that the state is not acting
in a “governmental capacity” the Movant also needs to establish that “compelling
circumstances” exist, to apply the equitable doctrine of laches. People v. State Oil
Company, William Anest et.al., PCB 97-103 (May 18, 2000) citing Hickey v. Illinois
Central Railroad Co., 35Ill.2d 427, 220 N.E.2d
415
(1966).
5.
In the Respondents’ Motion to Dismiss 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., the
Respondents clearly argue the requisite elements of a claim of laches against the state.
6.
In its order ofJune
5,
2003, the Board states that “considering the facts in the complaint
as true and drawing all inferences from them in favor ofthe Complainant, Skokie Valley
has not shown that the Fredericks reasonably and detrimentally relied on the words or
conduct ofthe State, nor been misled because of the delay in adding the Frederick’s to the
complaint, nor has the Skokie Valley provided the Board with any compelling
circumstances in this matter.” (Order at 7.)
7.
The Board’s ruling in support ofits decision to deny the Respondents’ Motion to Dismiss
Edwin L. Frederick, Jr., Individually and as Owner and President ofSkokie Valley
Asphalt Co., Inc. and Richard J. Frederick, Individually and as Owner and Vice President
ofSkokie Valley Asphalt Co., Inc. is not supported by the facts pleaded in this matter.
8.
In order to support the Motion to Dismiss, the Movants need not address the truth of the
facts in the complaint or the drawing ofall inferences from them in favor of the
Complainant. Laches is an equitable doctrine and the application ofan equitable defense
is not dependent on the credibility ofthe underlying complaint.
9.
The assertions by the Complainants that the Fredericks are responsible for the entire
Skokie Valley operation, that the Fredericks are identified as officers ofSkokie Valley
and that only the Fredericks are supplied information forthe response to interrogatories
on Skokie Valley (Order at 7) have no relevance to an argument that the lack ofdue
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diligence by a party asserting a claim resulted in prejudice to the opposing party.
10.
The Movants simply needs to show that the requisite elements of laches exist even if all
inferences from the facts that evidence the elements are drawn in favor ofthe
Complainant.
11.
With respect to the element oflack of due diligence by the Complainant, no inference
drawn from the facts that exist in this matter in favor ofthe Complainant can overcome
the factthat the Complainant waited up to seventeen (17) years after the alleged incidents
occurred, five
(5)
years after the Fredericks terminated their employment with corporate
entity involved in the matter and three (3) years after the completion ofthe discovery
related to the liabilities ofthe party to add the additional Respondents to the Complaint.
Regardless ofthe inference drawn in favor ofthe Complainant these facts show a lack of
due diligence by the Complainant especially in light ofthe fact that the Fredericks were
both parties known to the Complainants and their involvement with the alleged violations
were also known since the initiation ofthe litigation and, in fact, since the time of the first
alleged violation over seventeen years (17) ago.
12.
With respect to the element ofprejudice to the Movants, no inference drawn from the
facts that exist in this matter in favor of the Complainant can overcome the facts asserted,
as if under oath, in the Movants affidavits, showing that they will indeed be prejudiced.
Regardless ofany inference drawn, the fact remains that the Movants have been unduly
prejudiced by the lack ofdue diligence by the Complainant and will have difficulty
defending themselves in this matter as a direct result ofthe Plaintiffs lack of due
diligence.
13.
As argued in the Respondents’ Motion to Dismiss Edwin L. Frederick, Jr., Individually
and as Owner and President ofSkokie Valley Asphalt Co., Inc. and Richard J. Frederick,
Individually and as Owner and Vice President ofSkokie Valley Asphalt Co., Inc.
compelling circumstances do exist to justify the dismissal ofthe Movants.
14.
The “compelling circumstances” include the factthat the Movants would be required to
defend themselves against charges based on alleged incidents that occurred up to
seventeen (17) years ago, five
(5)
years after the Movants terminated their employment
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with the corporate entity named in the Complaint and three (3) years after discovery
related to the liability ofthe parties was completed.
15.
The “compelling circumstances” include the fact that a party in the position of the
Movants should be able to rely on the representations and actions ofthe State to conclude
that it will not be required to defend itself against allegations raised well after their
retirement and after it had justifiably determined that it had completed its responses to
discovery requests.
16.
The “compelling circumstances” include the factthat the Complainant’s motivation for
subjecting the Movants to the undue prejudice resulting from the Complainant’s lack of
due diligence is an attempt to manipulate the Board’s Procedural Rules to reopen the
discovery that the Respondents have twice thought was completed, to increase the
Respondents’ cost and effort in countering the Complainant’s procedural maneuvering, to
limit the Respondents ability to defend themselves in this proceeding and to further delay
the hearing and final determination by the Board.
10.
Wherefore, the Respondents respectfully request the Board to reconsider the sections of
its Order of June
5,
2003, that denies the Respondents’ Motion to Dismiss 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 ofSkokie
Valley Asphalt Co., Inc.
Davi~~O’Neill
David S. O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, IL 60634-1249
Phone:(773) 792-1333
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