ILLINOIS POLLUTION CONTROL BOARD
September 4, 2003
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
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.
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PCB 96-98
(Enforcement – Water)
ORDER OF THE BOARD (by T.E. Johnson):
This matter is before the Board on complainant’s second motion to compel respondents
to respond to discovery requests, filed on July 28, 2003. On August 11, 2003, respondents
Skokie Valley Asphalt Co., Inc. (Skokie Valley), Edwin L. Frederick, Jr., and Richard J.
Frederick (the Fredericks) filed a response to the second motion to compel. The complainant
filed Exhibit A and a correction to the second motion to compel on August 21, 2003.
The hearing in this matter is scheduled to begin in less than 60 days, on October 28,
2003. The Board, rather than the hearing officer, is addressing this motion to avoid any
unnecessary delay in resolution of discovery issues prior to hearing.
For the reasons articulated below, the Board grants the motion to compel in part, and
directs the respondents to respond to discovery as set forth in this order.
MOTION TO COMPEL
In their motion, the complainant seeks answers to interrogatories regarding financial
information and documentation pertaining to the Fredericks’ responsibilities at Skokie Valley.
Mot. at 3. The complainant asserts that the financial information such as income, assets and tax
returns is relevant in that it may be used to determine penalty amounts, the deterrent affect of
such penalties, and the economic benefit that respondents have incurred from noncompliance
with the Act (415 ILCS 5/1
et seq
. (2002) and associated regulations.
Id
.
2
The complainant also argues that the respondents’ refusal to answer requests for
information on the sale of Skokie Valley is unwarranted as the identity of the current owners of
Skokie Valley is relevant. Mot. at 4.
The complainant addresses respondents’ refusal to answer certain questions that
respondents allege are ambiguous or a question of law. The allegedly ambiguous questions
include those for which the People defined terms, such as “oily,” “diesel fuel odor,” and “oil
surface sheen.” Mot. at 4-5. The complainant asserts that it defined these terms for respondents
in a July 24, 2003 letter and demands that the respondents provided answers to the request to
admit where those terms appeared. Mot. at 5.
RESPONSE TO THE MOTION TO COMPEL
Respondents assert that financial information, including the sale of Skokie Valley, is not
relevant. Resp. at 2. Respondents argue that the civil penalties under the Act are codified
without reference to consideration of mitigating or punitive factors, and that the respondents
have not made any arguments based on economic hardship that would make the financial
information requested relevant.
Id
.
The respondents assert that certain requests to admit involve questions of law and do not
require an answer. Resp. at 3. The respondents refuse to answer allegedly ambiguous questions
that rely on terms as defined by the complainant.
Id.
Respondents assert that the definitions
provided by complainant in its letter are not derived from a technical source or dictionary, and
are not necessarily consistent with the common meaning of the terms.
Id
. Respondents assert
that they cannot answer the requests in question because they did not test the materials and do
not know if they contained oil or petroleum product, and would not be able to differentiate the
smell of diesel fuel from other products with similar odors or be able to determine if the sheen on
the water was caused by oil or some other event.
Id
.
DISCUSSION
All relevant information and information calculated to lead to relevant information is
discoverable. 35 Ill. Adm. Code 101.614. The financial information sought by the complainant
may be relevant, and, at a minimum, is calculated to lead to relevant information. If the Board
finds that respondents committed the alleged offenses, financial information is relevant to
ascertain any economic benefit derived from a delay in compliance, and to determine the amount
of monetary penalty needed to deter further violations.
See
415 ILCS 5/43(h)(3),(4) (2002).
Accordingly, the motion to compel financial information is granted. Specifically, Skokie Valley
is directed to answer interrogatories 4, 5, 6, 7, and 8, as well as comply with requests to produce
numbers 6, 7. and 8. The Fredericks are directed to answer interrogatories 6, 7, 8, 10, 19, and 20,
as well as comply with requests to produce number 4, 5, 6, and 7.
Respondents are directed to provide documentation regarding the Fredericks’
responsibilities at Skokie Valley. If no documentation is available, respondents shall so advise
the complainant.
3
The Board is not convinced by respondents’ arguments that certain requests to admit
involve questions of law. Skokie Valley is directed to answer requests to admit 1, 2, 3, 4, 5, 6, 9,
and 11. The Fredericks are directed to answer requests 1, 2, 3, 4, 5, 6, and 11. Further, “grab
sample” is a commonly understood term in the industry, and the respondents are directed to
answer requests referencing that term - 13, 14, and 15.
Finally, the second motion to compel is denied regarding those requests to admit
referencing the term “oily discharge” – requests 41 through 52 of the requests directed at both
Skokie Valley and the Fredericks. The term is ambiguous, and open to various interpretations.
Respondents are ordered to produce discovery as set forth in this order no later than
September 30, 2003.
OTHER MATTERS
The complainant submitted Exhibit A and a correction to the second motion to compel on
August 21, 2003. Exhibit A consists of all the discovery requests the complainant served on or
about May 7, 2003, as well as respondents’ answers to the requests. The complainant also seeks
to correct paragraph 20 of its motion to compel to read: “No answers were provided to
Complainant’s first request for admission of facts on Respondent Edwin L. Frederick, Jr.
Complainant demands that SVA provide those answers immediately.” Corr. at 2.
To date, the respondents have not responded to the correction. In light of the hearing
scheduled to occur October 28 and 29, 2003, the Board finds that it is necessary to address this
issue in this order.
See
35 Ill. Adm. Code 101.500(d). Accordingly, Edwin L. Frederick, Jr. is
directed to answer the request for admission of fact on or before September 30, 2003. The
request should be answered in accordance with the decisions made in this order.
CONCLUSION
The second motion to compel is granted in part. The respondents are directed to answer
the discovery requests as set forth in this order on or before September 30, 2003. However, the
respondents are not required to answer requests to admit number 41 through 52, regarding the
term “oily discharge.” Further, Edwin L. Frederick, Jr. is directed to answer complainant’s first
request for admission of fact in accordance with the decisions made in this order on or before
September 30, 2003.
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IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on September 4, 2003, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
