BEFORE THE ILLINOIS POLLUTION CONTROL Bd~-~~
CLERK’ S Or-H
PEOPLE OF THE STATE OF ILLNOIS,
)
JUL 1. G
Z003
Complainant,
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PCB96-98
pollution~.TATE
c~
ControlILLINOIS
00
v.
)
Enforcement
)
)
SKOKIE VALLEY ASPHALT, CO., An Illinois
)
corporation, EDWIN L FREDERICK, JR.,
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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’ RESPONSE
TO COMPLAINANT’S RESPONSE TO
RESPONDENTES’J MOTION FOR RECONSIDERATION OF THE BOARD’S ORDER
OF JUNE 5, 2003
The Respondents, Skokie Valley Asphalt Co., Edwin L. Frederick and Richard J.
Frederick, by and through their attorney, David S. O’Neill, herein respond to the Complainant’s
Response to Respondents’ Motion for Reconsideration of the Board’s Order ofJune
5,
2003.
In support ofits position, the Respondents state as follows:
1.
In its Response to Respondents’~JMotion for Reconsideration ofthe Board’s Order of
June
5,
2003, the Complainant argues that the Board’s June
5,
2003 order is not a final
order and therefore is not ripe for reconsideration. (Resp. at 2.)
2.
The Complainant argues that Section 101.520 only applies to “final orders” as that term
is defined in section 101.202 ofthe Board’s Procedural Rules and because the Board’s
Order ofJune 5, 2003 does not fit the definition ofa “final order”, the Respondents are
not allowed to file a Motion for Reconsideration of the June
5,
2003 Order. (Resp. at 2.)
3.
The logic ofthis argument by the Complainant is so misguided and unfounded that it
makes it difficult to respond to the Complainant’s Response.
4.
Section 10 1.520 (a) of the Board’s Procedural Rules that addresses Motions for
Reconsideration does not use the term “final order” that is defined in Section 101.202 but
instead differentiates the rule from only “final rules” by using the term “final Board
rule”. Therefore the Complainant’s argument is not even applicable.
5.
Because the Respondents’ Motion for Reconsideration ofthe Board’s Order ofJune
5,
2003 is, in fact, a motion for reconsideration, and becausethe Respondents have no
guidance to determine what the term “final Board order” includes, the Respondents filed
the Motion in compliance with Section 101.520.
6.
As required by Section 10 1.520(a) of the Board’s Procedural Rules, the Respondent’s
Motion for Reconsideration ofthe Board’s Order of June
5,
2003, the motion was filed
within 35 days after receipt ofthe order.
7.
Even if the Board were to find that Section 101.520 of the Board’s Procedural Rules
applies to “final orders” and that the Board’s Order of June 5, 2003 was not a “final
order” as the term is defined in Section 10 1.520, Section 101.520 is not intended as a bar
for the filing of all motions that do not pertain to “final orders”. The clear reading of
Section 10.520 indicates that it is intended to be a bar for filings motions for
consideration offinal Board orders more than 35 days after receipt ofthe order and not as
a bar to filing any other motions that are not motions for consideration of“final Board
orders”.
8.
If, for some reason, the Board finds that the Respondents’ Motion for Reconsideration of
the Board’s Order ofJune 5, 2003. Should not have been filed subject to the provisions
of section 10 1.520
,
the Respondents would still be allowed to file a motion in
accordance with the provisions of section 101.500 which states that “the Board may
entertain any motion the parties wish to file...”. There is no issue that the Respondents’
motion is properly filed under section 101.520 of the Board’s procedural rules.
9.
The Complainant also misapplies the provisions of section 101.920 ofthe Board’s
Procedural Rules in its argument against the Respondents’ Motion for Reconsideration of
the Board’s Order ofJune 5, 2003. Section 101.920 clearly states that new evidence and
a change in the law are “included” in the factors the Board will consider in a ruling for a
motion for reconsideration. This language implies that other factors are also to be
considered.
10.
Based on the implication that other factors are to be considered by the Board, the
Complainant’s argument that the Motion for Reconsideration should be denied because the
Respondents’ Motion for Reconsideration does not “provide any new evidence, or assert any
new change in the law” (Resp. at 4.) is not a dispositive argument that would prevent the
Board from adjusting its order of June 5, 2003.
Wherefore, the Respondent respectfully requests that the Board discount the
arguments made by the Complainant and grant the items sought in the Respondents’
Motion for Reconsideration of the Board’s Order ofJune 5, 2003.
/~Jj
Da~d~.O’Neill
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David S. O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, IL 60634-1249
(773) 792-1333
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Respondents’ Response
to the Complainant’s Response to Respondents’ Motion for Reconsideration ofthe
Board’s Order ofJune 5, 2003 by hand delivery on July 16, 2003 upon the following
party:
Mitchell Cohen
Environmental Bureau
Illinois Attorney General’s Office
Assistant Attorney General
100 W. Randolph, 11th Floor
Chicago, IL 60601
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~ DaYi~1S.O~ieilf
NOTARY SEAL
SUBSCRIBED AND SWORN TO ME this
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day
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Ndtar~’Pub’ic, State of Illinois
~ My Commission E.xpir~
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CLERK’S OPP!CE
JUL. .1 ~
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Poj/~j
SThTE
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OF
ControlILLINOISBoard
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
)
PCB 96-98
)
v.
)
Enforcement
)
)
SKOKIE VALLEY ASPHALT, CO.,
)
Respondent
)
NOTICE OF FILING
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution Control Board the Complainant’s Response to Respondents’ Motion for
Reconsideration ofthe Board’s Order ofJune 5, 2003, a copy ofwhich is hereby served
upon you.
/~4NeH1~~
July 16, 2003
David S. O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
(773) 792-1333