RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
I4UG
112003
PEOPLE OF THE STATE OF ILLiNOIS,
)
STATE OF ILLINOIS
Complainant,
)
Pollution Control Board
)
PCB 96-98
v.
)
)
Enforcement
SKOKIE VALLEY ASPHALT, CO., INC., an
)
Illinois Corporation, EDWIN L. FREDERICK, JR.,)
individually and as owner and President ofSkokie )
Valley Asphalt Co., Inc. and RICHARD J.
)
FREDERICK, JR., individually and as owner and
)
Vice-President of Skokie Valley Asphalt Co., Inc. )
)
Respondents.
)
RESPONDENTS’ RESPONSE
TO COMPLAINANT’S SECOND MOTION TO~
COMPEL RESPONDENTS TO
RESPOND
TO DISCOVERY
REOUESTS
Now come the Respondents, SKOKIE VALLEY ASPHALT, CO., an Illinois corporation,
EDWIN L. FREDERICK, JR., individually and as owner and President ofSkokie Valley
Asphalt Co., Inc. and RICHARD J. FREDERICK, JR., individually and as owner and Vice-~
President of Skokie Valley Asphalt Co., Inc., by and through their attorney, David S. O’Neill,
and in response to the Complainant’s Second Motion to Compel Respondents to Respond to
Discovery Requests states as follows:
I.
On July
23rd
2003 the Respondents, Richard J. Frederick and Edwin L. Frederick, caused
to be delivered to the Complainant, theircomplete responses to the discovery that had
been requested from them by the Complainant.
2.
On July 28th, 2003 the Respondents, Skokie Valle Asphalt Co., Inc., caused to be
delivered to the Complainant, its complete responses to the discovery that had been
requested from them by the Complainant.
3.
On July
28th,
2003, the Complainant filed the “Complainant’s Second Motion to Con pci
Respondents to Respond to Discovery”.
4.
In its Second Motion to Compel Discovery, the Complainant argues that the Respondents
1
should be compelJed to supply “information related to incomes, assets, tax returns and
other financial information” that the Respondents maintain is irrelevant. The
Complainant states that the information is relevant because the “financial information
may be used to determinepenalty amounts, the deterrent affect of such penalties and the
economic benefit that Respondents have incurred from noncompliance...” (Motion at 3.)
5.
The Respondents argue that the Complainant is intentionally misleading the Board in its
argument that the requested financial information is relevant to this case. In its Second
Amended Complaint, the Complainant request civil penalties against the Respondents for
each and every day ofviolation ofSection 12(a) and Section 12(f) of the Act. (Second
Amended Complaint at
5, 6,
9, 14 and 16.)
6.
The civil penalties allowed under Section 12(a) and Section 12(f) ofthe Act are codified
in the Act without reference to consideration ofmitigating or punitive factors such as
deterrent affects, financial hardship or econOmic benefit.
7.
In its Second Amended Complaint, the Complainant requested specific civil penalties
without making request ofthe Board to consider any mitigating or punitive factors.
(Second Amended Complaint at
5,
6, 9, 14 and 16.)
8.
The Respondents have not made any arguments based on economic hardship that would
make the financial information requested by the Complainant relevant.
9.
Wherefore, the Complainant’s argument that the requested financial information is
relevant is false and misleading.
10.
The Complainant argues that information on the sale of Skokie Valley Asphalt Co., Inc.
and LRF Inc. and information on the identity of the current owners ofthe SVA/LRF site
are “relevant to this matter given that the proceeds from the sale of SVA or LRF are
financial assets that are discoverable according to the rational provided...”
11.
For the same reasons sited in the response to the claim that other financial information is
relevant, the Respondents again argue that the Complainant is attempting to mislead the
Board with its argument and that the Complainant’s argument that the requested
information is relevant is false.
12.
In its Second Motion to Compel Discovery, the Complainant argues that the Respondents
2
Richard J. Frederick and Edwin L. Frederick failed to provide any documents explaining
their responsibilities at SVA. (Motion at 4.)
13.
The Articles of Dissolution for Skokie Valley Asphalt Co. Inc. that were produced in
response to the discovery requests show that the entity was dissolved in 1998. Further,
the information produced shows that all ofthe entities assets
—
including company records
—
were sold in 1997. As a result, the Respondents no longer have control of the entity’s
records that were requested. The response to the request to produce is complete.
14.
In its Second Motion to Compel Discovery, the Complainant demands that Respondents
provide answers to request to admit facts that the Respondents maintain involve an “issue
of law”. (Id.)
15.
The Complainant fails to contest any specific items that the Respondents maintain
involve an issue oflaw and fails to make any arguments that the requests do not involve
issues oflaw.
16.
The Respondents have difficulty responding to the request to compel that lacks specific
arguments as to why the matters requested do not involve issues of law. However, the
Respondents have reviewed their responses and upon review, maintain their position with
respect to every item they refused to answer because they involve issues oflaw.
17.
In its Second Motion to Compel Discovery, the Complainant demand that the
Respondents provide answers tot eh request to admit where the terms “oily”, “diesel fuel
odor” and oil surface sheen” appear. (Id. At
5.)
18.
In their reply to the Complainants 201(k) letter, the Respondents informed the
Complainant that the definitions for these terms that the Complainant supplied in 201 (k)
letter do not resolve the ambiguity of the request for admission of facts. The Respondents
did not test the materials and do not know ofthey contained oil or petroleum product.
The Respondents would also not be able to differentiate the smell of diesel fuel from
other products with similar odors and would not be able to determine if the sheen on the
water was caused by oil or some other natural or artificial event. The respondents are
also not willing to depend on definitions supplied by the Complainant outside of the
scope of the Request for Admission ofFacts especially when the definitions are not
3
derived from a technical or dictionary source and are not necessarily consistent with the
common meaning of the terms. The Respondents maintain this same argument and
position in this Response.
19.
In its Second Motion to Compel Discovery, the Complainant demands that the
Respondent, Skokie Valley Asphalt Co., Inc., reply to discovery request.
20.
in its reply to the Complainant’s 201(k) letter, the Respondent informed the Complainant
that Skokie Valley Asphalt Co., Inc’s submittal of discovery response was delayed for
want ofa signature from a corporate officer and also informed the Complainant that the
information would be delivered on July 28, 2003. The information was delivered to the
Complainant on July 28, 2003, prior to the filing ofthe Complainant’s Motion to
Compel.
WHEREFORE, the Respondents maintain that their responses to the Complainant’s
discovery are complete, pursuant to the Board’s Procedural Rules and the Rules ofthe Illinois
Supreme Court and respectfully requests the Board to recognize this motion as a furtherance of
the Complainant’s effort to abuse the Board’s Procedural Rules and the discovery process in an
effort to harass the Respondents and increase the cost to the Respondents ofdefending
themselves in this long-delayed matter and decline the Complainant’s Motion to Compel
Discovery and the Complainant’s request for attorneys’ fees and sanctions.
D~~S.p~eill ~
David S. O’Neill, Esq.
5487 N. Milwaukee Avenue
Chicago, IL 60630-1249
(773) 774-0814
4
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Respondents’ Response to
Complainant’s Second Motion to Compel Respondents to Respond to Discovery Requests by
hand delivery on August 11, 2003, upon the following party:
Mitchell Cohen, Esq.
Environmental Bureau
Assistant Attorney General
Illinois Attorney General’s Office
188 W. Randolph, 20th Floor
Chicago, IL 60601
Dav~ã(S.O’Neill
NOTARY SEAL
SUBSCRIBED AND SWORN TO ME this______________
day of
11~4_t
,20
~2’..3
1)
r~c1ALSEAL’~~
~oPc3ta~ofIIh~J
~ECEJVED
CLERK’S OFFICE
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
/\fJ~11
2003
STATE OF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS,
)
Pollution Control Board
Complainant,
)
)
PCB 96-98
v.
)
)
Enforcement
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, JR., individually and as owner and )
Vice-President of Skokie Valley Asphalt Co., Inc. )
)
Respondents.
)
NOTICE OF FILING
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk of the
Illinois Pollution Control Board the Respondents’ Response to Complainant’s Second Motion to
Compel Respondents to Respond to Discovery Requests, a copy ofwhich is hereby served upon
you.
D~d~~l
August 11, 2003
David S. O’Neill.
David S. O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, IL 60630-1249
(773) 792-1333