BEFORE THE ILLINOIS POLLUTION CONTROL BOARIk E C E IV E D
C1.~:RK~5OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
SEP 092003
)
STATE OF ILLINOIS
Complainant,
)
)
PCB 96-98
o utlon ontrol Board
)
v.
)
Enforcement
)
)
SKOKIE VALLEYASPHALT, 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 of Skokie Valley Asphalt Co., Inc.
)
)
Respondents.
)
RESPONDENT’S
MOTION TO DISMISS THE COMPLAINANT’S
SECOND AMENDED COMPLAINT AND
TO RECUSE COMPLAINANT’S ATTORNEY JOEL J.
STERNSTEIN
The Respondents, Skokie Valley Asphalt Co., an Illinois corporation, 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., by
and through their attorney, David S. O’Neill, herein move the Board to dismiss the
Complainant’s Second Amended Complaint and to recuse Complainant’s Attorney, Joel J.
Sternstein. In support of its position, the Respondents state as follows:
1.
On or about November 3, 1995, the Complainant filed a complaint in the above captioned
matter.
2.
On or about December 29, 1997, the Complainant filed a First Amended Complaint in the
above captioned matter.
3.
On or about July 26, 2002, the Complainant filed a Second Amended Complaint. The
second amended complaint was accepted by the Board in its ruling ofOctober 17, 2002
despite the fact that the Second Amended Complaint was deficient both because the
Complainant had not filed for leave to amend the complaint (Board Order ofOctober 17,
2002 at 2.) and despite the fact that the Second Amended Complaint did not include the
mandatory language of 35 Ill.Adm.Code 103.204(f) (Board Order ofMarch 20, 2003 at
3).
4.
On or about July 30, 2002, concurrent with the filing ofthe Second Amended Complaint,
Joel J. Sternstein filed an appearance as co-counsel on behalf ofthe Complainant.
5.
Section 101.112(b) of the Illinois Pollution Control Board’s Procedural Rules
(35
Ill.
Adm. Code) states, in relevant part, that:
No former Board Member or Board employee may represent any other
person in any Board proceeding in which he or she participated personally
and substantially as a Board Member Or Board employee, unless the
Board, and, as applicable, all parties or proponents in the proceeding
consent in writing after disclosure ofthe participation.
6.
On information and belief, Mr. Joel J. Sternstein was an employee of the Illinois
Pollution Control Board during the period during which this matter was before the
Board..
7.
In his capacity as an employee ofthe Board, Mr. Joel J. Sternstein participated personally
and substantially in the proceedings in this matter.
8.
At no time was Mr. Sternstein’s participation in the proceedings before the Board
disclosed to the Respondents or their attorneys.
9.
At no time did the Respondents or their attorneys consent in writing to allow Mr.
Sternstein to represent the Complainant in this matter.
10.
Any matters field by the Complainant and any decisions made and orders issued by the
Board subsequent to or concurrent with the time that Mr. Sternstein filed his appearance
are tainted by this apparent bias and conflict of interest.
Wherefore, the Respondent respectfully requests that the Board dismiss the
Complainant’s Second Amended Complaint, which was file concurrently with the appearance by
Mr. Sternstein, and accepted by the Board after the date that Mr. Sternstein filed his appearance,
and also void all orders issued regarding the Second Amended Complaint. The Respondents also
respectfully request that Mr. Sternstein be recused from further representing the Complainant in
-
2
this matter.
-
Respectfully submitted
David S. ~f4eill
David S. O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, IL 60634-1249
(773) 792-1333
3
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR1I~~
0 d
2003
STATE OF
P0//ut/on ~
PEOPLE OF THE STATE OF ILLINOIS,
)
°
Board
)
Complainant,
)
)
PCB 96-98
)
v.
)
Enforcement
)
)
SKOKIE VALLEY ASPHALT, CO., An Illinois
)
corporation, 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.
)
)
Respondents.
)
NOTICE OF FILING
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe Pollution
Control Board the Respondents’ Motion to Dismiss the Complainant’s Second Amended
Complaint and to Recuse Complainant’s Attorney, Joel J. Sternstein, a copy of which is hereby
served upon you.
/JJj
Da~S.O’N~iil
~)1~
September 9, 2003
David S. O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
(773) 792-1333
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Respondents’ Motion to Dismiss
the Complainant’s Second Amended Complaint and to Recuse Complainant’s Attorney, Joel J.
Sternstein upon the following party:
Mitchell Cohen
Environmental Bureau
Assistant Attorney General
188 W. Randolph, 20th Floor
Chicago, IL 60601
“
Dpi~S.o’~iii
NOTARY SEAL
SUBSCRIBED AND SWORN TO ME this ~
dayof
~
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20
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~
____________
Nota~PubIa~ijndi~
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Notary Public
~
My
Commission Expires 09/08/03