BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
by LISA MADIGAN, Attorney General
1
of the State of Illinois,
)
Complainant,
)
v.
)
PCB 96-98
SKOKIE VALLEY ASPHALT CO., INC.,
)
(Enforcement
-
RCRA)
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. OYNeill, Esq.
Ms. Carol Webb, Hearing Officer
Mr. Michael
B. Jawgiel, Esq.
Pollution Control Board
5487 North Milwaukee Avenue
1021 North Grand Avenue East
Chicago, Illinois 60630- 1249
P.O. Box 19274
Springfield, Illinois 62794-9274
PLEASE TAKE NOTICE that I have today filed
Complainant's Response to
Respondents' Motion for Sanctions,
with the Office of the Clerk of the Illinois Pollution
Control Board, a true and correct copy of which is attached hereto and herewith served upon you.
PEOPLE OF THE STATE OF ILLINOIS,
by LISA
MADIGAN, Attorney General
of the State of Illinois
BY:
w~
MICHAEL C. PARTEE
Assistant Attorney General
Environmental
Burearnorth
188 West Randolph Street, Suite 2000
.
Chicago, Illinois 60601
Tel:
3
12.814.2069
Fax: 312.814.2347
E-Mail:
mpartee@atg.state.il.us
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 13, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
by LISA MADIGAN, Attorney General
of the State of Illinois,
)
Complainant,
)
)
v.
PCB 96-98
SKOKIE VALLEY ASPHALT CO., INC.,
(Enforcement
-
RCRA)
an Illinois Corporation,
EDWIN L. FREDERICK,
)
JR., Individually and as Owner and President of
)
Skokie Valley Asphalt Co., Inc., and
1
RICHARD J. FREDERICK, Individually
and as Owner and Vice President of Skokie
)
Valley Asphalt Co., Inc.,
Respondents.
COMPLAINANT'S RESPONSE TO RESPONDENTS' MOTION FOR SANCTIONS
Complainant, the PEOPLE OF THE STATE OF ILLINOIS ("People"), by LISA
MADIGAN, Attorney General of the State of Illinois, hereby responds to Respondents',
SKOKIE VALLEY ASPHALT CO.,
INC., EDWIN L. FREDERICK, JR., and RICHARD J.
FREDERICK, Motion for Sanctions. In support of their response, the People state as follows:
1.
Respondents Motion for Sanctions should be stricken on procedural grounds or
denied on substantive grounds. Procedurally, the motion for sanctions does not comport with the
clear and unambiguous pre-hearing schedule set forth in the Board's September 7,2006 Order
and the requirement to attempt to informally resolve discovery disputes before seeking Board
intervention set forth in the Hearing Officer's February 8,2006 Order. Substantively, the Motion
for Sanctions seeks extraordinary relief without stating any legal or factual basis and should be
denied because it is without merit.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 13, 2006
Relevant Procedural Background
2.
In terms of procedural background, Respondents' Motion for Sanctions is based
on serious misstatements and omissions of the record in this proceeding. The discovery dispute
on which Respondents' Motion for Sanctions is based can be boiled down to a single paragraph
(Resp. Motion for Sanctions ("Motion") at
3,713)' wherein Respondents make the following
statements:
ln
its Order of November 11,2005, the Board refused to uphold the People's
objection to discovery. Order at
9. The Board allowed the Respondents thirty
days from the date of the Order to further respond to each objection. The Board
also stated that it would direct the hearing officer to reserve ruling on the
Respondents' Motion to Compel until the time for additional response is lapsed.
Id.
3.
The Motion for Sanctions then omits about nine months of relevant procedural
history from November 2005 through September 2006. (Resp. Motion at
7713-15.)
4.
Contrary to Respondents' representations, there exists no Board Order of
November 1 1,2005 in this proceeding and the Board did not refuse to uphold the People's
discovery objections. On November 17,2005, the Board ruled as follows (Nov. 17,2005 Order
at 8. (underline added)):
The respondents' motion to strike the People's obiections to
discovew is denied.
The People are entitled to file discovery objections under Sections
101.618(h) and'
101.620(c) of the Board's procedural rules, and raised proper obiections
thereunder.
5,.
Regarding Respondents' motion to compel, the Board further ruled as follows
(Nov. 17,2005 Order at
9 (underline added)):
As to the respondents' motion to compel, the Board agrees with the assertions of
the People that the respondents did not adequately respond to the People's
objections, or attempt to informally resolve the dispute before seeking Board
intervention.
In various pleadings, the respondents provide general argument, but
do not specifically address the objections made by the People. For example, the
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 13, 2006
respondents argue that a portion of the objections by the. People are "so poorly
argued that they
defL response by the respondents." Mot. to Comp. at 5. Such an
assertion does little to assist the Board in reaching a proper determination, and
only serves to increase the contentiousness that is evidenced by the many
pleadings in this matter.
However, instead of upholding the People's objections to discovery, the Board
will allow the respondents 30 days from the date of this order to further respond to
each objection. Accordingly, the Board will direct the hearing officer to reserve
ruling on the respondents' motion to compel until the time for additional response
is lapsed.
6.
On December 19,2005, Respondents filed a response to the People's discovery
objections.
7.
On December 28,2005, the People filed a reply to Respondent's response to the
People's objections, along with a motion for leave to reply. Also on December 28, 2005, due to
the myriad discovery disputes being brought by Respondents directly to the Board without any
prior attempt to informally resolve differences with the People, the People filed a second motion
for protective order asking that Respondents' attorneys be required to participate in a full and
good faith conference with the People's attorneys regarding any further discovery dispute prior to
seeking Board intervention.
8.
On February 8,2006, the Hearing Officer granted the People's second motion for
protective order as follows (Feb. 8,2006 Order at 1-2 (underline added)):
Complainant's motion for protective order asks that respondents' attorneys be
required to participate in a full and good faith conference with complainant's
attorneys regarding any further discovery dispute prior to seeking Board
intervention. Respondents' motion to strike offered no compelling argument on
which to grant that motion, thus the motion to strike is denied. The parties are
directed to make every effort to get through the discovery process with no further
involvement from the Board or the hearing officer. Accordingly, the hearing
officer grants the motion for protective order.
In anv motion, objection, or other
filing related to any discovery problem, respondents' attorneys must relate the
measures taken to resolve the problem with complainant's attorneys before the
filing of the motion.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 13, 2006
9.
Respondents' attorneys have never complied with the Hearing Officer's
Order of February 8,2006. Consistent with their failing in this regard, Respondents'
Motion for Sanctions does not relate any measures taken to resolve alleged discovery
problems with the People's attorneys before its filing.
10.
It is against this procedural background that the Respondents seek the
extraordinary remedy of sanctions for unsubstantiated and vague discovery violations by the
People.
Applicable Legal Standard for the Imposition of Sanctions
11.
Respondents' Motion for Sanctions does not set forth the legal standard for
sanctions and is not supported by any Board precedent. The only authority cited in Respondents'
Motion for Sanctions is Illinois Supreme Court Rule 219 (Resp. Motion at
5), which is not the
controlling rule on sanctions in this
proceeding.
12.
The Board (and Courts, for that matter) has "broad discretion" in determining the
imposition of sanctions.
See Freedom
Oil
Co.
v.
IEPA,
PCB 03-54,2006 WL 391850, at *8
(Feb. 2,2006). In exercising this broad discretion, the Board considers such factors as the
relative severity of the refusal or failure to comply; the past history of the proceeding; the degree
to which the proceeding has been delayed or prejudiced; and the existence or absence of bad faith
on the part of the offending party or person.
Id.
These factors are contained in Board Procedural
I
Rule 101.800(c) (35 Ill. Adm. Code 101.800(c)), which is the controlling rule in deciding
whether to impose sanctions in a Board proceeding.
Respondents' Motion for Sanctions Should Be Stricken On Procedural Grounds
13.
Respondents' Motion for Sanctions is based on alleged discovery violations. On
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 13, 2006
pleadings are to be treated. The Board ruled that "[d]iscovery pleadings, including replies to the
objections, that are not addressed by the schedule will not be allowed.'' (Sept. 7,2006 Order at
8.) Moreover, when Respondents' attorney suggested that he would file a Motion for Sanctions
during the October 5,2006 Hearing Officer status conference, the Hearing Officer advised
Respondents' attorney that such a motion was not provided for in the pre-hearing schedule and
any such argument could be made at hearing. The Hearing Officer further advised that, to the
extent Respondents' still maintained objections to the People's discovery, such objections were
due by October 5,2006. Respondents waited until October 11,2006 and then filed their Motion
for Sanctions anyway. As a threshold issue, Respondents' Motion for Sanctions is not addressed
by the pre-hearing schedule established by the Board and should be stricken.
14.
In addition, the Motion for Sanctions violates the Hearing Officer's February 8,
2006 Order requiring,
"[iln any motion, objection, or other filing related to any discovery
problem, respondents' attorneys must relate the measures taken to resolve the problem with
complainant's attorneys before the filing of the motion." (Feb. 8,2006 Order at 2.)
Respondents' attorneys took no steps to resolve the problem with the People's attorneys before
filing the Motion for Sanctions and, therefore, related no such measures in the Motion for
Sanctions. The Motion for Sanctions should also be stricken because it does not comply with the
Hearing Officer's February 8,2006 Order.
Respondents' Motion for Sanctions Is Without Merit and Should Be Denied
15.
Viewed in light of the Rule
101.800(c) factors to be considered in imposing
sanctions, Respondent's Motion for Sanctions is completely without merit.
16.
The Rule
101.800(c) factors include (a) the relative severity of the refusal or
failure to comply, (b) the past history of the proceeding, (c) the degree to which the proceeding
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 13, 2006
has been delayed or prejudiced, and (d) the existence or absence of bad faith on the part of the
offending party or person. None of these factors support any sanctions against the People:
a.
In terms of the relative severity of the People's alleged refusal or failure to
comply, the People have not improperly refused or failed to comply with any discovery
request. On May 25,2005, the People filed timely answers to Respondents' discovery,
including several hundred pages of backup documentation for their fee petition. While
the People also filed objections along with their answers, the Board ruled that those
objections were proper.
(See
Nov. 17,2005 Order at 8) Moreover, the People initiated
numerous Rule
201(k) conferences with Respondents in an attempt to informally resolve
any differences over the People's objections, even though the objections
were.proper. As
of the Board's September 7,2006 Order, Respondents had no pending discovery requests
for the People to answer.
b.
Regarding the past history of the proceeding, the record makes it
inescapable that the Respondents were found to have committed knowing, willful or
repeated violations of the Act and associated regulations and were ordered to pay a civil
penalty and the People's reasonable attorneys7 fees and costs. Since the Respondents
themselves initiated this dispute over the People's fee petition more than two years ago,
Respondents have delayed entry of a final order by filing at least nine discovery pleadings
with the Board (all of which were denied) without ever attempting to informally resolve
differences with the People before seeking Board intervention. Respondents' abusive
motion practice even resulted in the entry of a protective order against Respondents'
attorneys requiring that they relate the measures taken to resolve the problem with the
People's attorneys before the filing of any further discovery pleadings. (See Feb. 8,2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 13, 2006
Order at 2.) At the same time, the People have never missed a deadline established by
rule or order, and have done nothing short of try to resolve this case through numerous
attempts at informal discovery dispute resolution and a March 30,2006 motion for final
order.
c.
Regarding the degree to which the proceeding has been delayed or
prejudiced, the People have not done anything to delay or prejudice the Respondents or
this proceeding, nor do Respondents make
any specific allegations of such conduct.
d.
Lastly, there is no evidence of any bad faith on the part of the People in
this case. To the contrary, the People have even attempted to resolve discovery disputes
informally pursuant to Rule
201(k) and without Board intervention. The Respondents
have ignored all such attempts, even after being ordered by the Hearing Offer's February
8,2006 Order to participate in such efforts.
17.
There is absolutely nothing in or out of the record relative to the Rule
101.800(c)
factors that supports imposition of sanctions against the People.
18.
Respondents' Motion for Sanctions does not specifically identify any withheld
information or document that could conceivably prevent them
from properly preparing for
hearing on December 12,2006 (which is still two months away). Respondents' merely make
vague, conclusory and unsupported allegations regarding the People's alleged discovery
violations and the Respondents' inability to prepare for hearing (see Resp. Motion at
4,77 24 and
26), which fall far short of the Rule 101.800(c) factors.
19.
The issue of the People's discovery objections that forms the basis for the Motion
for Sanctions is identical in every way to the issue that was already conclusively decided by the
Board on September 7,2005 and the Hearing Officer on February 8,2006. Nothing in the
7
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 13, 2006
Motion for Sanctions can change these rulings.
20.
For all of these reasons, Respondents' Motion for Sanctions should be denied
because it is without merit.
Conclusion
2 1.
Respondents' Motion for Sanctions violates the pre-hearing schedule set forth in
the Board's September 7, 2006 Order and the requirement that Respondents7 attorneys must
relate the measures taken to resolve the problem with the People's attorneys before the filing
another discovery pleading set forth in the Hearing Officer's February 8,2006 Order. The
Motion for Sanctions should be stricken on these procedural grounds.
22.
Respondents7 Motion for Sanctions is also unsupported by any facts or law and,
therefore, is without merit. None of the Rule
101.800(c) factors support the Motion for
Sanctions, nor did Respondents even address any of these factors. If the Motion for Sanctions is
not stricken on procedural grounds, it should be denied on this substantive ground.
WHEREFORE, the People respectfully request that the Board deny Respondents' Motion
for Sanctions and for any further relief that is fair and just under the circumstances.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
by LISA
MADIGAN, Attorney General
ohhe Svte of Illinois
BY:
/--
MICHAEL C. P&TEE
Assistant Attorney General
Environmental
Bureau/North
188 West Randolph, Suite 2001
Chicago, Illinois 60601
Tel: 3 12.814.2069
Fax: 312.814.2347
E-Mail:
mpartee@atg.state.il.us
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 13, 2006
CERTIFICATE OF SERVICE
It is hereby certified that true and correct copies of the
Notice of ~ilin~
and
Complainant's Response to Respondents' Motion for Sanctions,
were sent by First Class
Mail, postage prepaid, to the persons listed on the Notice of Filing on October 13,2006.
w
BY:
-6m
MICHAEL C. PARTEE
It is hereby certified that the above documents were electronically filed with the
following person on October 13,2006:
Pollution Control Board, Attn: Clerk
James R. Thompson Center
100 West Randolph Street, Suite 1 1-500
Chicago, Illinois 60601
BY:
WW
MICHAEL C. PARTEE
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 13, 2006