PEOPLE OF
Complainant
v.
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.
TO: See Attached Service List
NOTICE OF FILING
R~Q~JED
CONTROL BOARD
CL~PR~SOFF1C~
JUL 2 8 2003
STATE OF ILLINOIS
Pollution Control Board
PLEASE TAKE NOTICE that on July 28, 2003, we filed with the
Illinois Pollution Control Board “COMPLAINANT’S SECOND
MOTION TO
COMPEL RESPONDENTS, SKOKIE VALLEY ASPHALT, CO., INC.,EDWIN L.
FREDERICK, JR. AND RICHARD J. FREDERICK, TO RESPOND TO DISCOVERY
REQUESTS”,
a true and correct
hereby served upon you.
copy of which is attached and
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex
rel.
LISA MADIGAN,
Attorney General of the
State of Illinois,
BY: Io~(~
S~I2~JZ~$~
JOEL J. STERNSTEIN
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
(312) 814-5282
THIS DOCtTh~ENT IS SUBMITTED ON RECYCLED PAPER
SERVICE LIST
Mr. David O’Neill
Attorney at Law
5487 North Milwaukee
Chicago, Illinois 60630
Ms. Carol Sud.man
Hearing Officer
Illinois Pollution Control Board
600 S. Second Street, Suite 402
Springfield, Illinois 62704
(o~)i7~flf\n
U !IIr~~Ifl(DIIt~VIII
~
CLERK’S
OFP~E
BEFORE THE
0 ~JONTROL BOARD
JUL 28 2003
PEOPLE OF THE STATE OF ILLINOIS,
STATE
OF ILLINOIS
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 SECOND MOTION TO COMPEL
RESPONDENTS, SKOKIE VALLEY ASPHALT, CO., INC.,
EDWIN L. FREDERICK, JR. AND RICHARD J. FREDERICK,
TO RESPOND TO DISCOVERY REQUESTS
Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, pursuant to
Sections 101.100(b), 101.616, 101.618, 101.620, and 101.800 of
the Board’s Procedural Rules, 35 Ill. Adm. Code 101.100(b),
101.616, 101.618, and 101.620, Supreme Court Rules 201, 213, 214,
216, and 219, and Hearing Officer Orders dated March 28, 2003 and
June 30, 2003, states in support of Complainant’s Second Motion
to Compel Respondents, Skokie Valley Asphalt, Co., Inc., Edwin L.
Frederick, Jr. and Richard J. Frederick, To Respond To Discovery
Requests as follows:
1
INTRODUCTION
1. This Second Motion to Compel supercedes Complainant’s
First Motion to Compel filed on July 9, 2003.
2. In accordance with the Hearing Officer Order dated March
28, 2003, Complainants mailed to Respondents’ Counsel on May 7,
2003, Interrogatories, Requests to Produce Documents, and
Requests for Admissions for all three Respondents.
3. The March 28, 2003 Order required all written discovery
to be completed by June 20, 2003.
4. Respondents’ answers and responses to the written
discovery requests mailed on May 7, 2003 were due no later than
June 9, 2003.
5. Respondents failed to answer or respond to Complainant’s
written discovery requests by June 9, 2003.
6. On June 9, 2003, Respondents’ filed a Motion for
Extension of Time which asked in essence that Respondents have
until July 3, 2003, to answer and respond to Complainant’s
written discovery requests.
7. Hearing Officer Sudman then issued a new discovery
schedule with July 3, 2003 as the date all written discovery was
to be completed.’
8. Respondents failed to answer or respond to Complainant’s
Also in accordance with the Hearing Officer Orders,
depositions are to be completed by August 20, 2003. Complainants
have already noticed four depositions beginning July 30, 2003.
2
written discovery requests by July 3, 2003.
9. On July 10, 2003 the parties participated in a telephone
status conference during which Hearing Officer Sudman again
extended the written discovery deadline. The new deadline was
set as July 24, 2003.
RESPONDENTS FAIL TO ADEQUATELY RESPOND TO DISCOVERY REQUESTS
10. Respondents delivered only partial and inadequate
answers to complainant’s written discovery requests on July 23,
2003.
11. In accordance with Sup. Ct. Rule 201(k), Complainant’s
Counsel tried to resolve discovery differences and sent
Respondent’s Counsel a 201 (k) letter on July 24, 2003, a copy of
which is attached as Exhibit A. Respondents responded to
Complainant’s 201(k) letter the following day, a copy of which is
attached as Exhibit B.
12. In their partial answers to Complainant’s written
discovery requests, Respondents claimed Complainant’s requests
for information related to incomes, assets, tax returns, and
other financial information were irrelevant.
13. Respondents’ financial information 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 Illinois Environmental
Protection Act and the Pollution Control Board’s Regulations.
3
14. Respondents also refused to answer Complainant’s
requests for information on the sale of Skokie Valley Asphalt Co.
Inc. (“SVA”) or LRF Inc. Respondents again claimed irrelevance.
The identity of the current owners of the SVA/LRF site is
relevant to this matter given that the proceeds from the sale of
SVA or LRF are financial assets that are discoverable according
to the rationale provided in Paragraph 13.
15. Respondents Richard J. Frederick and Edwin L. Frederick
(“the Fredericks”), in answering Number 1 of Complainant’s
Requests for Production, failed to provide any documents
explaining their responsibilities at SVA including, but not
limited to, Articles of Incorporation, Bylaws, Annual Reports
filed with the Secretary of State’s Office, other Annual
Corporate Reports, and Minutes from 1988 through 1998.
16. It is apparent from the Fredericks’ answers to Number 1
of the Requests for Production and from the Fredericks’ answers
to the other items in the Request for Production that the
Fredericks made no effort to answer the Requests for Production.
Nearly all of the answers to the Requests for Production had
already been provided to Complainant during 2002.
17. Respondents also refuse to answer several of the
Complainant’s Requests to Admit because “they involve an issue of
law”. Complainants posed no Requests to Admit Facts based on
issues of law and demand that Respondents provide those answers
4
immediately.
18. Respondents also refuse to answer several of
the Requests to Admit Facts because the Respondents claim not to
understand the meaning of the terms “oily” “diesel fuel odor” and
“oil surface sheen”. Complainant defined these terms for
Respondent in the July 24, 2003 201(k) letter and demands that
Respondents provide answers to the Request to Admit where those
terms appeared.
19. No answers were provided to Complainant’s Second Set of
Interrogatories on Respondent SVA. Complainant demands that SVA
provide those answers immediately.
20. No answers were provided to Complainant’s Second
Request for Production of Documents, Objects, and Tangible Things
on Respondent SVA. Complainant demands that SVA provide those
answers immediately.
WHEREFORE, Complainant requests, pursuant to the Board’s
Procedural Rules and the Supreme Court Rules, the followin9:
1. A finding that Respondents violated the Board’s
Procedural Rules and the Supreme Court Rules;
2. An Order compelling Respondents to fully answer and
respond to Complainant’s written discovery immediately;
3. An Order requiring Respondents to pay all attorney fees
and costs associated with this Second Motion to Compel; and
4. Such other sanctions that the Board believes to be
5
appropriate.
PEOPLE OF THE STATE OF ILLINOIS,
ex
rel.
LISA MADIGAN,
Attorney General of the
State of Illinois,
By:
MITCHELL L. COHEN
JOEL J. STERNSTEIN
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.
-
20th Fl.
Chicago, IL 60601
(312) 814-5282/(312)
814-6986
6
Exhibit~
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
Lisa Madigan
ATrORNEY GENERAL
July 24, 2003
Mr. David O’Neill, Esq.
viafacsimile and US mail
5487 North Milwaukee
Chicago, IL 60630
Re: People v.
Skokie
Valley Asphalt,
Fax:(773) 792-8358
Edwin L. Frederick, Jr., and
Richard J. Frederick
Dear Mr. O’Neill,
This letter is written pursuant to Supreme
Court Rule 201(k). Please contact me no
later
than the close ofbusiness on Friday, July
25,
2003
to
reply to the requests below regarding the
inadequate
nature
ofyour
answers
to the State’s
discovery requests. Please contact me because
Mitchell Cohen will be out of the Office on July 24 and
25.
Requests for incomes, assets, tax
returns, and other financial information from all
Defendants in Complainant’s Interrogatories and Requests for Production are relevant to
this matter. This financial information may be used to determine penalty amounts, the
deterrent affect ofsuch penalties, and the economic benefit that Respondents have
incurred from noncompliance with the Illinois Environmental Protection Act and the
Pollution Control Board’s Regulations. Respondents’ claims ofirrelevance in refusing to
answer the discovery are without merit. Complainant requests that Respondents provide
those answers as soon as possible.
Requests for information on the sale ofSkokie Valley Asphalt Co. Inc. (“SVA”) or LRF
Inc. and the identity ofthe current owners ofthe site are relevant to this matter given that
the proceeds from the sale ofSVA or LRF are financial assets that are discoverable
according to the rationale provided in the preceding paragraph. Respondents’ claims of
irrelevance in refusing to answer the discovery are without merit. Complainant requests
that Respondents provide those answers as soon as.possible.
Respondents Richard J. Frederick and Edwin L. Frederick (“the Fredericks”) provided
only Articles ofDissolution for SVA and LRF and one amendment to the Articles of
Incorporation for SVA in answering Number 1 ofthe Requests for Production.
Respondents Richard J. Frederick and Edwin L. Frederick failed to provide any
documents explaining their responsibilities at SVA including, but not limited to, Articles
ofIncorporation, Bylaws, Annual Reports filed with the Secretary of State’s Office, other
Annual Corporate Reports, and Minutes from 1988 through 1998. The Fredericks’
500 South Second Street, Springfield, Illinois 62706
•
(217) 782-1090
•
TTY:
(217) 785-2771
•
Fax: (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601
•
(312) 814-3000
•
TTY: (312) 814-3374
•
Fax: (312) 814-3806
201(k) Letter to D. O’Neill
Page 2
July 24, 2003
answers to Number 1 of the Requests for Production fall far short ofwhat Complainant
requested. Furthermore, Respondents have already provided much ofthis
information to
Complainants
in a February 22, 2002 facsimile from David 0 ‘Ne~llto Kelly Cartwright,
who at that time was the Attorney of Record in this matter for Complainant. It is
apparent from the Fredericks’ answers to Number 1 ofthe Requests for Production and
from the answers to the other items in the Request for Production that Respondents made
no additional effort to answer the Requests to Produce. Complainant requests that
Respondents make every effort to properly answerthe Requests to Produce as soon as
possible.
•
In each of the Requests to Admit Facts that Complainants served on Respondents,
respondents refuse to answer several ofthe Requests to Admit because “they involve an
issue oflaw”. Complainants posed no Requests to Admit Facts based on issues oflaw.
Complainant requests that Respondents provide those answers as soon as possible.
•
Each of
the Respondents refuses to answer several of the
Requests to Admit Facts
because the Respondents claim not to understand the meaning ofthe terms “oily” “diesel
fuel odor” and “oil surface sheen”. In order to clarif~rthese terms, Complainant provides
the following additional definitions:
“Oily” means containing oil or other petroleum products.
“Diesel fuel odor” means smelling like diesel fuel.
“Oil surface sheen” means a thin layer of oil visibleto the naked eye that forms on
the surface ofwater in instances where oil has been spilled, placed, or leaked into
that water.
Now that Respondents understand the terms listed immediately above as defined by
Complainant, Complainant requests that Respondents provide answers to the Requests to
Admit where the terms appeared.
•
No answers were provided to Complainant’s Second Set ofInterrogatories on Respondent
SVA Co. Inc. Complainant requests that SVA provide those answers as soon as possible.
•
No answers were provided to Complainant’s Second Request for Production of
Documents, Objects, and Tangible Things on Respondent
SVA. Complainant requests
that SVA provide those answers as soon as possible.
Please call me if you have any questions.
201(k) Letter to D. O’Neill
Page 3
July 24, 2003
Sincerely,
Joel I. Sternstein
Assistant Attorney General
Environmental Bureau
188 West Randolph,
20th
Floor
Chicago, IL 60601
(312) 814-6986
cc.
Ms. Carol Sudrnan
-
Illinois Pollution Control Board
DAVID
S.
O’NEILL, ATTORNEY AT LAW
5487
N. Mll.WA1JK0I~AVF~NUE
‘CIlIcA~o,(i.UNOIS
60630-1249. (773)
792-1333
FAX:
(773) ~92-8358
Of Counsel with Dennis R. O’Neill, P.C.
ONei1!Chicago(~HotMail.com
July
25,
2003
Assis~ntA~orncyGenera!
fThvironmental Bureau
Illinois
Attorney General’s
Office
188 W. Randolph, 20th Floor
Chicago, IL 60601
re:
Skokie
V~illeyAsphalt
Co., Inc. Reply to June 24, 2003 Letter
Dear Mr. St~rns’tein:
Please accept
this
letter in response
(0 you
letter ofJuly 24,2003. The respondents’ point-by
-point responses
to
your
letter are as follows:
-
The Respondents maintain their position that requests concerning financial information are
not
relevant.
Issues concerning ‘financial position and
penalties will not
he relevant unless
and until there is a
finding
ofviolation againstthe Respondents.
-
The Respondents maintain their position that the in’thrmaiion requested concerning the sale
of
the
entities
and the present owners
is not relevant.
The
Complainant’s position
that
this
information
isrclcvant because it yields information concerning assets is incorrect 1~rthe
same reasons stated in the first point.
The Articles of Dissolution show that the company has been dissolved Since 1 998. The
Respondents have discarded all
of
the corporate records in the normal course ofbusiness.
Therefore, there are‘no records to be produced. I discussedthis matter with the Respondents
againyesterday to see if the records might he available through theirattorneys .accountants
orsome other source and they informed methat
no additional records were
availablethrough
~J1y
50111CC.
-
I have reviewed all ofthe items that the Respondents did not answer because they involved
issues oflaw. Upon review, the Respondents maintain their position and elect to neither
admit or deny any of
the
items.
-
The definitions supplied by the Complainant in the letter do not resolve theambiguity of the
requests for admission offsets. The Respondents did not test thematerials and do not know
if they contained oil or petroleum product. The Respondents also
would
not he able to
differentiate the smell ordiesel fuel form 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 naturaJ or
alTiticial event, The Respondents
are
also not willing to depend on definitions supplied by
the Complainant outside the scope ofthe Requests for Admission ofFacts especially when
Page 2
July
25,
2003
the
definitions are not
derived from a technical or
dictionary source and are not necessarily
consistent with the common meaning ofthe terms.
The answerto the “Complainant’s Second of Interrogatorics on Respondent SVA Co. Inc.”
has been completed hut needs to be reviewed and executed by a representative of Skokic
Vatey Asphalt Co., Inc. I am presentlytrying to makearrangements to have a representative
of Skokie
Valley review and sign
the Answer. Hopefully, it will be delivered to the
Complainant
on Monday July
28, 2003.
The
answer to
the
“Complainant’s Second Request for Production of
Documents, Objects
and Tangible Things on Respondent SVA Co. Inc.” has been completed but needs to
be
reviewed
and executed by arepresentativeo’fSkokie Valley Asphalt Co., Inc. I am presently
trying to make
arrangements to have a representative of Skok’ie Valley review and sign the
answer. Hopefully, it will be delivered to
the
Complainant on Monday July 28, 2003.
Sincerely,
CERTIFICATE OF SERVICE
I, MITCHELL COHEN, an Assistant Attorney General, certify
that on the 28th day of July, 2003, I caused to be served by
First Class Mail the foregoing
“COMPLAINANT’S SECOND MOTION TO
COMPEL RESPONDENTS, SKOKIE VALLEY ASPHALT, CO., INC.,EDWIN L.
FREDERICK, JR. AND RICHARD J. FREDERICK, TO RESPOND TO DISCOVERY
REQUESTS”
to the parties named on the attached service list, by
telefaxing and by depositing same in postage prepaid envelopes
with the United States Postal Service located at 100 West
Randolph Street, Chicago, Illinois 60601.
JOEL J. STERNSTEIN
Assistant Attorney General
H~\coirmon\Enviror~menta1\JOEL\Case Documen~s\Skokie Valley Asphalt\Diecovery\Motioxi to Compel-2
.wpd