ILLINOIS POLLUTION CONTROL BOARD
October 17, 2002
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):
On July 26, 2002, the Office of the Attorney General, on behalf of the People of the State
of Illinois, (complainant) filed a second amended complaint against Skokie Valley Asphalt Co.,
Inc. (Skokie Valley), Edwin L. Frederick, Jr. (Edwin Frederick) and Richard J. Frederick
(Richard Frederick). The complainant alleges in the second amended complaint that respondents
violated Sections 12 (a) and (f) of the Environmental Protection Act (Act) (415 ILCS 5/12(a), (f)
(2000)), as well as 35 Ill. Adm. Code 302.203, 304.105, 304.106, 305.102(b), 309.102(a), and
309.104(a). The complaint alleges the violations concerns respondents’ facility at Grayslake
Village, Lake County.
On September 25, 2002, Skokie Valley filed a motion to strike the second amended
complaint. On October 1, 2002, the complainant filed a response to the motion to strike. On
October 11, 2002, Skokie Valley filed additional information in support of the motion to strike.
For the reasons articulated below, the Board accepts Skokie Valley’s motion to strike and
additional information in support thereof. The Board denies the motion as outlined below. The
complainant is given leave to file the second amended complaint, as requested in its response,
and the second amended complaint is accepted.
MOTION TO STRIKE
In its motion, Skokie Valley asserts that Section 103.206(d) of the Board’s procedural
rules require a party wishing to file an amendment to a complaint move the Board for leave to
2
file the pleading. Mot. at 1.
1
Skokie Valley argues that because no motion to file was filed and
leave to file not granted by the Board, the second amended complaint cannot be accepted. Id.
Skokie Valley maintains that it is “indisputable that material prejudice would result if the second
amended complaint is not stricken.” Mot. at 1-2. Skokie Valley requests that the Board strike
the second amended complaint unless or until the complainant moves the Board for leave to
amend and the Board, in fact, grants such leave. Mot. at 2.
COMPLAINANT’S RESPONSE TO MOTION
In its response, the complainant notes that the motion to strike itself was not timely filed
within 30 days after service of the challenged document and should be stricken pursuant to 35 Ill.
Adm. Code 101.506. Resp. at 1-2. The complainant denies that any prejudice results from the
filing of the second amended complaint because both Edwin Frederick and Richard Frederick
have been actively involved in this litigation since 1995. Resp. at 2-3. The complainant
contends that because Edwin Frederick and Richard Frederick were responsible for the day to
day operations of the business and involved in this litigation for the last seven years, there is no
prejudice. Resp. at 3.
The complainant argues that the motion to strike is nothing more than an attempt to delay
the hearing in a matter that has been pending before the Board for nearly seven years. Resp. at 4.
The complainant asks that the Board to grant relief in one of the following manners: (1) strike
the motion to strike; (2) deny the motion to strike: (3) grant leave for the complainant to file the
second amended complaint effective July 26, 2002:, or (4) grant complainant leave to file the
second amended complaint effective on the date of the Board’s decision on the motion. Resp. at
4-5.
ADDITIONAL INFORMATION IN SUPPORT
OF THE MOTION TO STRIKE
On October 11, 2002, Skokie Valley filed additional information in support of the motion
to strike the second amended complaint. Skokie Valley further contends that the complainant
has not complied with the Board rule requiring a party to move the Board for leave to file an
amendment to a complaint. Inf. at 1. Skokie Valley asserts that its motion to strike should be
accepted because material prejudice will occur if the motion is not heard. Inf. at 2, citing 35 Ill.
Adm. Code 101.506. Skokie Valley argues that the addition of new respondents and the impact
of the amendment of the complaint on discovery will cause material prejudice.
Id
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Skokie Valley argues that even if the motion to strike is not accepted, the Board should
strike the second amended complaint on its own motion to maintain the integrity of its
procedural rules. Inf. at 3.
1
Skokie Valley’s motion to strike will be referred to as “Mot. at __.”; the complainant’s
response will be referred to as “Resp. at __.”; Skokie Valley’s additional information in support
of the motion to strike will be referred to as “Inf. at __.”
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DISCUSSION
The second amended complaint seeks to add Edwin Frederick and Richard Frederick as
respondents, but is substantially identical to the first amended complaint in all other aspects. No
new violations are alleged in the second amended complaint. Section 103.206(d) of the Board’s
rules clearly provides that leave must be sought before the filing of an amended complaint.
Complainant acknowledges that leave was not sought, but argues that the motion to strike is only
an attempt to delay a case that has been pending for seven years.
The Board first addresses the timeliness of the motion to strike. Although the motion to
strike was not filed within 30 days as required by 35 Ill. Adm. Code 101.506, the Board finds
that material prejudice would result if the motion is not accepted, and, accordingly, accepts the
motion to strike. The Board accepts Skokie Valley’s additional information pursuant to 35 Ill.
Adm. Code 500(e) for the same reason.
The Board is cognizant of the length of time this case has been pending before the Board,
however the procedural rules cannot be ignored and leave must be sought before the filing of an
amended complaint. The motion to strike is denied as moot, because in its response,
complainant requests leave to file the second amended complaint.
See
Resp. at 6. In the
interests of administrative economy, the Board finds that this satisfies the requirements of
Section 103.206(d) of the Board’s procedural rules, grants complainant leave to file an amended
complaint, and accepts the second amended complaint. 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.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on October 17, 2002, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
