THIS FILING SUBMITTED ON RECYCLED PAPER
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    VERNON and ELAINE ZOHFELD,
    )
    )
    Complainants,
    )
    )
    vs.
    )
    PCB No. 05-193
    )
    (Citizen’s Enforcement, Air)
    BOB DRAKE, WABASH VALLEY
    )
    SERVICE COMPANY, MICHAEL J.
    )
    PFISTER, NOAH D. HORTON, and
    )
    STEVE KINDER,
    )
    )
    Respondents.
    )
    NOTICE OF FILING
    TO:
    Ms. Dorothy M. Gunn
    Carol Webb, Esq.
    Clerk of the Board
    Hearing Officer
    Illinois Pollution Control Board
    Illinois Pollution Control Board
    100 West Randolph Street
    1021 North Grand Avenue East
    Suite 11-500
    Post Office Box 19274
    Chicago, Illinois 60601
    Springfield, Illinois 62794-9274
    (VIA ELECTRONIC MAIL)
    (VIA ELECTRONIC MAIL)
    PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
    Illinois Pollution Control Board a
    MOTION FOR LEAVE TO FILE A REPLY TO
    COMPLAINANTS’ RESPONSE TO MOTION TO STAY PROCEEDINGS
    on behalf of
    Respondents, Wabash Valley Service Company, Michael J. Pfister, Noah D. Horton and Steve
    Kinder, a copy of which is herewith served upon you.
    Respectfully submitted,
    WABASH VALLEY SERVICE COMPANY,
    MICHAEL J. PFISTER, NOAH D. HORTON,
    and STEVE KINDER,
    Respondents,
    Dated: August 15, 2005
    By:/s/ Thomas G. Safley
    One of Their Attorneys
    Thomas G. Safley
    Gale W. Newton
    HODGE DWYER ZEMAN
    3150 Roland Avenue
    Post Office Box 5776
    Springfield, Illinois 62705-5776
    (217) 523-4900
    ELECTRONIC FILING, PCB 05-193 RECEIVED, CLERK'S OFFICE AUGUST 15, 2005
    2
    CERTIFICATE OF SERVICE
    I, Thomas G. Safley, the undersigned, certify that I have served the attached
    MOTION FOR LEAVE TO FILE A REPLY TO COMPLAINANTS’ RESPONSE TO
    MOTION TO STAY PROCEEDINGS upon:
    Ms. Dorothy M. Gunn
    Clerk of the Board
    Illinois Pollution Control Board
    100 West Randolph Street
    Suite 11-500
    Chicago, Illinois 60601
    Carol Webb, Esq.
    Hearing Officer
    Illinois Pollution Control Board
    1021 North Grand Avenue East
    Post Office Box 19274
    Springfield, Illinois 62794-9274
    via electronic mail on August 15, 2005; and upon:
    Stephen F. Hedinger, Esq.
    Hedinger Law Office
    2601 South Fifth Street
    Springfield, Illinois 62703
    Thomas H. Bryan, Esq.
    Fine & Hatfield, P.C.
    520 N.W. Second Street
    Post Office Box 779
    Evansville, Indiana 47705-0779
    by depositing said documents in the United States Mail in Springfield, Illinois, postage
    prepaid, on August 15, 2005.
    /s/ Thomas G. Safley
    Thomas G. Safley
    WVSC:002/Fil/NOF-COS – Motion for Leave
    ELECTRONIC FILING, PCB 05-193 RECEIVED, CLERK'S OFFICE AUGUST 15, 2005
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    VERNON and ELAINE ZOHFELD,
    )
    )
    Complainants,
    )
    )
    vs.
    )
    PCB No. 05-193
    )
    (Citizen’s Enforcement, Air)
    BOB DRAKE, WABASH VALLEY )
    SERVICE COMPANY, MICHAEL J.
    )
    PFISTER, NOAH D. HORTON, and
    )
    STEVE KINDER,
    )
    )
    Respondents.
    )
    MOTION FOR LEAVE TO FILE A REPLY
    TO COMPLAINANTS’ RESPONSE TO MOTION TO STAY PROCEEDINGS
    NOW COME Respondents, WABASH VALLEY SERVICE COMPANY,
    MICHAEL J. PFISTER, NOAH D. HORTON, and STEVE KINDER (hereinafter
    “Respondents”), by and through their attorneys, HODGE DWYER ZEMAN, and
    pursuant to Section 101.500(e) of the Illinois Pollution Control Board’s (“Board”)
    procedural rules, 35 Ill. Admin. Code §101.500(e), move Carol Webb, Hearing Officer in
    this matter, for leave to file their Reply to Complainants’ Response to Mot ion t o Stay
    Proceedings (“Response”).
    1.
    On May 9, 2005, Complainants filed their Complaint with the Board in this
    matter.
    2.
    On April 26, 2005, a criminal Information (the “Information”) was filed
    with the United States District Court for the Southern District of Illinois relating to this
    same “incident.” See
    United States of America v. Wabash Valley Service Co., Glen S.
    Kinder, and Noah David Horton, Criminal No. 05-40029-JPG, a copy of which
    ELECTRONIC FILING, PCB 05-193 RECEIVED, CLERK'S OFFICE AUGUST 15, 2005
    2
    Information is attached as an exhibit to the Verified Motion to Stay Proceedings filed by
    Respondents.
    3.
    On July 8, 2005, Respondents filed a Verified Motion to Stay Proceedings.
    4.
    On August 3, 2005, Complainants filed a Response to Motion to Stay
    Proceedings.
    5.
    Under the Board’s procedural rules, a moving party is not entitled to file a
    reply, except as permitted by the Board or the Hearing Officer to prevent material
    prejudice. 35 Ill. Admin. Code § 101.500(e).
    6.
    Respondents believe that Complainants’ Response does not completely or
    accurately represent the state of the case law regarding simultaneous criminal and civil
    proceedings involving the same subject matter.
    7.
    Respondents believe that due to the above-mentioned incomplete or
    inaccurate characterization of the case law, Complainants have also incorrectly applied the
    case law to the circumstances here.
    8.
    Furthermore, in their Response, Complainants have asserted new facts that
    are not of record in this proceeding, and which, therefore, Wabash Valley did not address,
    and could not have addressed, in its Motion to Stay.
    9.
    Complainants have also grossly mischaracterized statements made in the
    Verified Motion to Stay Proceedings.
    10.
    Allowing the Respondents to file the Reply would avoid material prejudice
    that would result if Complainants’ Response was allowed to stand containing inaccuracies
    in its characterization of the case law and the application of law to the circumstances here;
    ELECTRONIC FILING, PCB 05-193 RECEIVED, CLERK'S OFFICE AUGUST 15, 2005
    3
    new assertions of fact which Wabash Valley has not had a chance to address; and, gross
    mischaracterizations of statements made in the Verified Motion to Stay Proceedings.
    WHEREFORE, for the above and foregoing reasons, Respondents WABASH
    VALLEY SERVICE COMPANY, MICHAEL J. PFISTER, NOAH D. HORTON, and
    STEVE KINDER, respectfully request that the Hearing Officer grant them leave to file
    their Reply to Complainants’ Response to Motions to Stay Proceedings.
    Respectfully submitted,
    WABASH VALLEY SERVICE
    COMPANY, MICHAEL J. PFISTER,
    NOAH D. HORTON, and STEVE KINDER
    Respondents,
    By:/s/ Thomas G. Safley
    One of Their Attorneys
    Dated: August 15, 2005
    Thomas G. Safley
    Gale W. Newton
    HODGE DWYER ZEMAN
    3150 Roland Avenue
    Post Office Box 5776
    Springfield, Illinois 62705-5776
    (217) 523-4900
    F:\WVSC-002\Filings\Motion for Leave to File Reply.doc
    ELECTRONIC FILING, PCB 05-193 RECEIVED, CLERK'S OFFICE AUGUST 15, 2005

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