1. RECEiVED
      2. Pollution Control Board
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
JUL 7 2003
PEOPLE OF THE STATE OF ILLINOIS,
STATE OF ILLINOIS
I
)
Pollution Control Board
v.
)
No. PCB 96-98
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.
NOTICE OF FILING
TO: See Attached Service List
PLEASE TAKE NOTICE that on July 7, 2003, wefiled with the
Illinois Pollution Control Board “Complainant’s Response to
Respondent’s Motion for Reconsideration of the Board’s Order of
June 5, 2003”, a
true and correct copy of which is attached and
hereby served upon you.
Respectfully submitted,
JAMES E. RYAN
Attorney General
State of Illinois
BY:__
MITCHELL L. COH N
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois
60601
(312) 814-5282
SERVICE LIST
Mr. David O’Neill
Attorney at Law
5487 North Milwaukee
Chicago, Illinois
60630
Ms. Carol Sudman
Hearing Officer
Illinois Pollution Control Board
600 S. Second Street, Suite 402
Springfield, Illinois 62704
RECEiVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
JUL
7.2003
STATE OF IWNOIS
Complainant,
Pollution Control Board
v.
)
No. PCB 96-98
SKOKIE VALLEY ASPHALT, CO., INC.,
)
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.
COMPLAINANT’S RESPONSE TO
RESPONDENT’S MOTION FOR RECONSIDERATION OF THE
BOARD’S ORDER OF
JUNE
5, 2003
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN,
Attorney General of the State of Illinois, pursuant to
Sections 101.202 and 101.520 of the Board’s Procedural
Regulations, 35 Ill. Adm. Code 101.202 and 101.520, responds to
Respondent’s Motion For Reconsideration Of The Board’s Order Of
June 5, 2003, as follows:
INTRODUCTION
1. The Board’s June 5, 2003, Order (“June Order”)
addressed various motions previously filed in this case:
Complainant’s Motion to Strike or Dismiss Respondents’
Affirmative Defenses; Respondent’s Motion to Dismiss Edwin L.
Frederick, Jr. and Richard J. Frederick; and Complainant’s Motion,
1
to Strike Respondent’s Motion to Dismiss.
2. The June Order did not terminate the proceedings in this
case, but rather allowed the proceedings to continue with
discovery and litigation.
THE BOARD’S JUNE 5, 2003, ORDER IS NOT
A FINAL ORDER
AND THEREFORE IS NOT RIPE FOR RECONSIDERATION
3. Section 101.202 Definitions for Board’s Procedural
Rules, 35
Ill. Adm.
Code
101.202, defines “Final Order” as
follows:
“Final Order” means an order of the Board that terminates
the proceeding leaving nothing further to litigate or decide
and that is appealable to an appellate court pursuant to
Section
41 of the Act.
4. The June Order is not a final order.
5. The June Order allowed one of Respondents’ Affirmative
Defenses to stand and did not allow two of the three respondents
to be dismissed from the case.
6. The June Order addresses motions and issues brought up by
the parties during litigation of this case related to the ongoing
litigation. The motions did not seek to end
“. . .
the proceeding
leaving nothing further to litigate
. . .“
and the June Order was
not meant to, and does not, end the proceedings.
7. Section 101.520(a)
of the Board’s Procedural Rules and
Regulations,
35 Ill. Adm. Code 101.520(a),
states as follows:
a)
Any motion for reconsideration
or modification
of
a final Board.
order must be filed within 35 days
after the receipt of the order. (emphasis added)
2
8. Since the June Order is not a final order, it is not ripe
for reconsideration.
WHEREFORE, Complainant requests, pursuant to the June 5,
2003, Order of the Board, and sections 101.202 and 101.520 of the
Board’s Procedural Regulations, 35 Ill. Adm. Code 101.202 and
101.520, that the Board strike Respondent’s Motion for
Reconsideration of the Board’s Order of June 5, 2003.
COMPLAINANT
ADOPTS AND INCORPORATES EARLIER ARGUMENTS
9. Should the June 5, 2003, Order of the Board be construed
as a final order, or if the C~omp1ainantmisinterpreted the
Board’s Procedural Regulations, then Complainant objects to and
contests Respondent’s Motion for Reconsideration.
10. Complainant adopts and incorporates the following
pleadings, motions and responses previously filed with the Board:
Complainant’s Second Amended Complaint; Complainant’s Motion to
Strike or Dismiss Respondents’ Affirmative Defenses; and
Complainant’s Motion to Strike Respondent’s Motion to Dismiss or,
in the alternative, a Response to the Motion to Dismiss.
11. Section 101.902 under Subpart I: Review of Final Board
Opinions and Orders, 35 Ill. Adm. Code 101.902, states as
follows:
Motions for Reconsideration
In ruling upon a motion for reconsideration, the Board will
consider
factors including new evidence, or a change in the
law, to conclude that the Board’s decision was in error.
3
12. Respondents, in the Motion for Reconsideration, do not
provide any new evidence, or assert a change in the law.
13. Therefore, Respondents’ Motion for Reconsideration
should be denied.
CONCLUSION
14. The Board’s Order
of June 5, 2003, is not a final
order, and therefore,
not ripe for a Motion for Reconsideration;
Respondent’s Motion for Reconsideration
should be stricken.
15. If the June Order can be the subject of a Motion for
Reconsideration, it
should
be denied because Respondents do not
present any new evidence or assert a change in the law.
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA MADIGAN,
Attorney General of the
State of Illinois,
By:
______
JOEL J. STERNSTEIN
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.
-
20th Fl.
Chicago, IL 60601
(312) 814-5282/(312) 814-6986
I \HLC\SkokieVa11ey\1~espMoRecon~
.wpd
-
4
CERTIFICATE OF SERVICE
-
I, MITCHELL COHEN, an Assistant Attorney General, certify
that on the 7th day of July, 2003, I caused to be served by-First
Class Mail the foregoing “Complainant’s
Response to Respondent’s
Motion for Reconsideration Of the Board’s Order of June 5, 2003”
to the parties named on the attached service list, by depositing
same in postage prepaid envelopes with the United States Postal
Service located at 100 West Randolph Street, Chicago, Illinois
60601.
~M~LL.cOHE~~
-
Assistant Attorney General
-
X \MLC\SkokieVa11ey\NotofFi1in~.wpd

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