RECE~VED
    CLERK’S OFFICE
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    JUL
    062005
    STATE
    OF ILIJNOIS
    Pollution Control Board
    PEOPLE
    OF THE STATE OF ILLINOIS,
    )
    Complainant,
    )
    )
    PCB 96-98
    )
    v.
    )
    Enforcement
    )
    )
    SKOKIE VALLEY ASPHALT, CO., INC.,
    )
    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 of
    )
    Skokie Valley Asphalt Co., Inc.,
    )
    Respondent
    )
    NOTICE OF FILiNG
    PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk ofthe Pollution
    Control
    Board
    the RESPONDENTS’ MOTION TO STRIKE COMPLAiNANT’S LETTER OF
    MAY 24, 2005 REGARDING DISCOVERY, a copy ofwhich is hereby served upon you.
    /
    David,S~Neil1
    /‘
    July
    6,
    2005
    David S.
    O’Neill, Attorney at
    Law
    5487 N. MilwaukeeAvenue
    Chicago, IL 60630-1249
    (773) 792-1333
    RECER~~~
    BEFORE THE
    ILLiNOIS POLLUTION
    CONTROL BOARD
    CLERK’S
    OFFICE
    JUL
    062005
    PEOPLE OF THE
    STATE OF
    ILLINOIS,
    )
    STATE OF ILLINOIS
    Complainant,
    )
    Pollution Control Board
    )
    PCB
    96-98
    )
    V.
    )
    Enforcement
    )
    )
    SKOKIE VALLEY ASPHALT, CO., INC.,
    )
    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
    )
    RESPONDENTS’
    MOTION TO
    STRIKE
    COMPLAINANT’S LETTER OF MAY
    24, 2005 REGARDING
    DISCOVERY
    The Respondents, SKOKIE VALLEY ASPHALT,
    CO.,
    INC.,
    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 of Skokie Valley Asphalt Co.,
    Inc.,, by and through
    its
    attorney, David S. O’Neill, herein move this Board to strike the
    Complainant’s Letter ofMay24, 2005
    and
    in support thereof states as follows:
    PROCEDURAL HISTORY
    1.
    On April
    7, 2005, the Board
    issued an
    Order in the above captioned matter.
    In this
    Order,
    the
    Board granted the Respondents’
    motion for extension oftime to allow for limited
    discovery.
    2.
    The Order states that “the Board will grantthe respondents additional time in order to
    conduct
    discovery...” Order of April 7, 2005 at 3.
    In the Conclusion ofthe Order, the
    Board “grants respondents’ motion for
    extension oftime and authorizes respondents to
    1
    conduct discovery on the attorney fees issue”.
    Id at 4.
    MOTION TO STRIKE
    3.
    On May 24, 2005, the Complainant sent a letter to the Respondents under the pretense of
    initiating a conference pursuant to Illinois Supreme Court Rule 20 1(k), even though the
    provisions ofSupreme Court Rule 201(k) do not apply to this
    situation because the
    Complainant was never given leave to conduct discovery by the Board.
    4.
    In the letter, the Complainant falsely accuses the Respondents and their attorneys of a
    number of improprieties.
    5.
    The letter ofMay 24, 2005 to the Respondents was copied to an employee ofthe Board
    Ms. Carol
    Webb. Letter at 3.
    6.
    In Section
    10 1.100 ofthe Board’s Procedural Rules, the term “ex parte communication”
    is defined as a:
    “communication between a person who is not a Board Member or Board employee
    and a
    Board Member and Board employee that reflects on the substance of a pending Board
    proceeding and that takes place outside the record ofthe proceeding.
    Communications
    regarding matters of procedure and practice, such as the format of pleadings, number of
    copies required, manner of service, and status of proceedings, are not considered ex parte
    communications 5ILCS
    100/10-60(d).
    For purposes ofthis definition, “Board
    employee” means a person the Board employs on a full-time, part-time, contract or intern
    basis.
    Ill
    Rules ofCiv
    Proc
    7.
    Ms. Webb is a Board employee and based on the definition in the Procedural Rules, the
    Complainant’s letter ofMay 25, 2005
    is an
    ex parte communication.
    8.
    Under Section
    101.114 of the Board’s Procedural
    Rules, Ms. Webb
    is required to make
    the ex parte communication part ofthe record ofthe proceeding.
    9.
    Assuming the Complainant’s letter of May
    25,
    2005 has or will be made part of the
    record for this case, the Respondents move to have the letter stricken from the record.
    10.
    There are no provisions in the Board’s procedural rules to
    allow the Complainant to file
    such a letter.
    11.
    Unless stricken, the Complainant will be allowed to
    enter information into the record, that
    is seeded with
    false statements.
    2
    12.
    The Board’s Procedural Rules do not offer any mechanism for the Respondents
    and their
    attorneys to respond to the accusations and
    statements in the Complainant’s letter ofMay
    25,
    2005.
    1 3.
    Allowing the uncontested false statements to appear in the record has the potential of
    prejudicing the trier offact in this matter.
    Wherefore, the
    Respondents respectfully request the Board to strike the Complainant’s letter of
    May 25, 2005
    from the record.
    /4~JJ~~
    D~vidS.O)N~ll
    I)avid
    S. O’Neill. Attorney at Law
    5487 N. Milwaukee Avenue
    Chicago, Illinois 60630-1249
    (773) 792-1333
    3
    CERTIFICATE OF SERVICE
    1, the undersigned, certify that I have served the attached RESPONDENTS’ MOTION TO
    STRIKE COMPLAINANT’S LETTER OF
    MAY 24, 2005 REGARDING DISCOVERY by
    hand delivery on July 6, 2005, upon the following party:
    Mitchell Cohen
    Environmental Bureau
    Assistant Attorney General
    Illinois Attorney General’s Office
    188
    W. Randolph, 20th
    Floor
    Chicago, IL 60601
    ,/)~i
    ~)1~
    Dayi~S.
    o~iii
    NOTARY SEAL
    SUBSCRIBEDANDSWORN
    TO ME this
    ______________
    dayof
    ~
    ,20
    c~r
    RITA LOMBARDI
    NOTMYP~1UC.$TA7ECFLUNO~$

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