PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
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.,
S~P
1
12003
STATE OF
ILLINOIS
Pollution Control Board
Respondents.
NOTICE OF FILING
TO: Mr. David S. O’Neill
Mr. Michael Jawgiel
5487 N. Milwaukee Ave.
Chicago, IL 60630
Ms. Carol Sudman
Hearing Officer
Illinois Pollution Control Board
do Illinois EPA
1021 North Grand Ave.
P0 Box 19276
Springfield, Illinois 62794-9276
PLEASE TAKE NOTICE that Complainant, PEOPLE OF THE STATE OF
ILLINOIS, filed with the Illinois Pollution Control Board
COMPLAINANT’S RESPONSE TO RESPONDENTS’ MOTION TO DISMISS
COMPLAINANT’S SECOND AMENDED COMPLAINT
AND
TO RECIJSE
COMPLAINANT’S ATTORNEY JOEL J. STERNSTEIN a true and correct copy
of which is attached hereto and is hereby served upon you.
Dated:
September 11, 2003
PEOPLE OF THE STATE OF ILLINOIS
Ex rel.
LISA MADIGAN, Attorney
General of the State of Illinois
BY:
MITCHELL
~4it~Z/~.
L. COHEN
JOEL J. STERNSTEIN
Assistant Attorney General
Environmental Bureau
188 West Randolph,
20th
Floor
Chicago, IL 60601
(312) 814-5282
(312) 814-6986
RECE~VE~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
v.
No. PCB 96-98
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVE
CLERK’S OFRCE
PEOPLE OF THE STATE OF ILLINOIS, )
SEP
Ii 2003
Complainant,
)
PollutionSTATE
OFControlILLINOISBoard
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.
COMPLAINANT’S RESPONSE TO
RESPONDENT’S MOTION TO DISMISS COMPLAINANT’S
SECOND AMENDED COMPLAINT AND
TO RECUSE COMPLAINANT’S ATTORNEY JOEL J. STERNSTEIN
Comes now,
the People of the State of Illinois, Complainant,
and responds to “Respondent’s Motion
to Dismiss Complainant’s
Second Amended Complaint and
to Recuse Complainant’s Attorney
Joel J.
Sternstein, as follows:
I. Respondent’s Motion to Dismiss should be Denied.
Respondent’s Motion to Dismiss Complainant’s Second Amended
Complaint should be denied since it was not filed within 30 days
after the service of the Second Amended Complaint. Section
101.506 of the Pollution Control Board Procedural Rules, states
that “all motions to strike, dismiss,
. . .
any pleading filed
THIS DOCUMENT IS FILED ON RECYCLED PAPER
with the Board must be filed within 30 days after the service of
the challenged document
. . . .“
35 Ill. Adm. Code 101.506
(2001). On October 17, 2002, the Board issued an Order in this
case; the final sentence of which read: “The Respondents may file
an answer as provided in Section 103.204(d) of the Board’s rules
using October 17, 2002, as the date the complaint was received.”
People v. Skokie Valley Asphalt Co., Inc., PCB 96-98, slip op. at
3 (Oct. 17, 2002)
.
By the time the Board issued this Order, Joel
J. Sternstein’s Entry of Appearance had been on file for months.
Any motion to strike, or dismiss a pleading was due in November,
2002. Since Respondent did not file the Motion to Dismiss until
September 9, 2003, it is not timely and should be denied.’
II. Mr. Sternstein should not be Recused.
Respondents’ Motion to Recuse Joel Sternstein should be
denied. In paragraph 6 of Respondents Motion, David O’Neill,
respondents’ attorney, goes so far as to say “on information
and belief, Mr. Joel J. Sternstein
. . . .“
worked at the
Pollution Control Board. See Respondents’ Motion, page 2. Then in
paragraph 7, O’Neill makes a bald faced accusation that Mr.
Sternstein
“. . .
participated personally and substantially
. .
.“
in this case. See Respondents’ Motion, page 2. There is not a
reference to any work, order, or opinion written by Mr.
See also, People v. Skokie Valley Asphalt Co., Inc., PCB
• 96-98, slip op. at 7 (June 5, 2003) for similar discussion
related to Respondent’s Motion to Dismiss the Fredericks.
THIS DOCUMENT IS FILED ON RECYCLED PAPER
Sternstein. There is not a reference to any work, order, or
opinion written by Board Member Melas which may have been
prepared, or drafted by Mr. Sternstein. There is not a cite or
reference that Mr. Sternstein participated in any hearing related
to this case. Respondents provided nothing: not one shred of
evidence; not even a basis for an inference that Mr. Sternstein
personally and substantially participated in this case while
working at the Board.
Joel J. Sternstein is a licensed attorney in the State of
Illinois. He is an Assistant Attorney General for the Illinois
Attorney General’s Office working in the Environmental Bureau.
See affidavit attached. He previously work for the Illinois
Pollution Control Board. He assisted Board Member Nicholas J.
Melas in drafting opinions and orders for the Board.
Section 101.112(b) of the Illinois Pollution Control Board’s
Procedural Rules, 35 Ill. Adm. Code 101.112(b), 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
. . .
This case was never assigned to Board Member Melas during
the time Mr. Sternstein worked for the Board: July 1998 through
June 2002. Mr. Sternstein never participated personally or
substantially, as a Board employee on this case. Therefore, there
is no basis whatsoever for Respondents to move to recuse Mr.
THIS DOCUMENT IS FILED ON RECYCLED PAPER
Sternstein from this case.
Furthermore, Mr. Sternstein advised the Environmental Bureau
when he was hired which pending cases he worked on at the
Pollution Control Board where the People of the State of Illinois
was a party represented by the Attorney General’s Office. He did
this to avoid conflict knowing he could not work on those cases.
He took the affirmative step to ensure no conflicts would exist
when joining the Environmental Bureau. Mr. Sternstein never
worked on this case at the time he was employed by the Pollution
Control Board so there is no conflict and no basis for recusal.
This process of avoiding conflicts of interest, or the
appearance of impropriety is no different than the one used by
the Pollution Control Board. For example, Illinois Pollution
Control Board Hearing Officer Bradley P. Halloran was previously
an Assistant Attorney General in the Environmental Bureau of the
Illinois Attorney General’s Office. While an Assistant Attorney
General, Mr. Halloran worked on this case. When Mr. Halloran
became a Hearing Officer, he did not hear any matters related to
this case. Since Mr. Halloran worked on this case before joining
the Pollution Control Board, he cannot now participate on the
case.
However, since Mr. Sternstein never participated personally,
or substantially, on this case while employed by the Illinois
Pollution Control Board before joining the Attorney General’s
THIS DOCUMENT IS FILED ON RECYCLED PAPER
Office, he can represent the People of the State of Illinois in
this case.
Conclusion
Respondents’ Motion to Dismiss should be denied and their
Motion to Recuse Mr. Sternstein should be denied. Again,
Respondents file an untimely Motion to Dismiss. Besides being
untimely, there is no basis in law or fact for the Motion.
THIS DOCUMENT IS FILED ON RECYCLED PAPER
WHEREFORE, Complainant respectfully requests not only that
“Respondent’s Motion to Dismiss the Complainant’s Second Amended
Complaint and to Recuse Complainants’ Attorney Joel J. Sternstein
be denied, but also requests that Respondents and their attorney,
David S. O’Neill be sanctioned in accordance with the Board
Regulations and the Illinois Rules of Civil Procedure for filing
this frivolous motion.
PEOPLE OF THE STATE OF ILLINOIS,
ex
rel.
LISA MADIGAN, Attorney
General of the State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
ROSEMARIE CAZEAU, Chief
Environmental Bureau
BY:____
Mitchell L. Cohen
Assistant Attorney General
MITCHELL L. COHEN
JOEL STERNSTEIN
Assistant Attorneys General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
(312) 814-5282/(312) 814-6986
I:\MLC\SkokieValley\RespMoDismis&Recuse.wpd
THIS DOCUMENT IS FILED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
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.
AFFIDAVIT OF JOEL J. STERNSTEIN
I, Joel J. Sternstein,
being first duly sworn on oath,
state:
1. I am a licensed attorney
in the State of Illinois.
2. I have been employed as an Assistant Attorney General
in the Environmental Bureau of the Office of the Illinois
Attorney General in Chicago since June of 2002.
3. Prior to working for the Office of the Illinois
Attorney General, I was an Attorney for Board Member Nicholas J.
Melas at the Illinois
Pollution Control Board from July 1998
until June 2002.
4. During my tenure at the Illinois Pollution Control
Board, Board Member Melas and I were responsible for drafting the
opinions and orders on Board Member Melas’ assigned enforcement
cases.
5. During my tenure at the Illinois Pollution Control
Board, the People v. Skokie Valley Asphalt case, PCB 96-98, was
not assigned to Board Member Melas.
6. During my tenure at the Illinois Pollution Control
Board, I never drafted any opinions or orders or had any other
involvement pertaining to the People v. Skokie Valley Asphalt
case, PCB 96-98.
7. During my tenure at the Illinois Pollution Control
Board, I knew respondents’ attorney David O’Neill. We spoke to
each other on occasion when he walked by my office.
8. When I began working for the Office of the Illinois
Attorney General, I provided a list of the pending enforcement
cases that I was working on at the Illinois
Pollution Control
Board. I would not and am not allowed to work on enforcement
cases for the Office of the Illinois Attorney General that I
previously worked on at the Illinois
Pollution Control Board.
9. During my tenure at the Illinois Pollution Control
Board, I never participated personally and substantially in any
proceeding related to the People v. Skokie Valley Asphalt case,
PCB 96-98.
Joel J. Sternstein
Subscribed and sworn to before me
this 11th day of ~
-•..-
OFRC~AL
SEAL
~0TA~YP~~
~ kL~S
NOTARY PUBLIC
H:\commOfl\EflViroflfllefltal\JOEL\Case Documents\Skokie Valley Asphalt\motions\affidavit
-
motion to strike me.wpd
CERTIFICATE OF SERVICE
I, MITCHELL L. COHEN, an Assistant Attorney General, do
certify that I caused to be mailed this 11th day of September
2003, the foregoing COMPLAINANT’S RESPONSE TO RESPONDENTS’ MOTION
TO DISMISS COMPLAINANT’S SECOND AMENDED COMPLAINT
AND
TO RECUSE
COMPLAINANT’S ATTORNEY JOEL J. STERNSTEIN 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.
H~\common\Eflviroflasfltal\JOEL\Case Docurnents\Skokie Valley Asphalt\rnotions\notice-service.wpd