BEFORE T~
~~)NTROL
BOAR~C~~~)M~CE
SEP 2~20U3
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
STATE OF ILLINOIS
)
PCB
96-98
Pollution Control Board
V.
)
)
Enforcement
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
)
President ofSkokie Valley Asphalt Co., Inc.
)
)
Respondents.
)
RESPONDENTS’ HEARING BRIEF FILED ON BEHALF
OF THE RESPONDENTS SKOKIE VALLEY ASPHALT, CO., 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 PRESIDENT OF SKOKIE
VALLEY ASPHALT CO., INC.
As instructed in the Hearing Officers’s order, 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 President ofSkokie Valley Asphalt Co., Inc.
,
by and through their
attorney, David S. O’Neill, herein submit their hearing brief.
PARTIES INVOLVED
1.
Complainant
—
People of the state of Illinois are represented by the Office ofthe Attorney
General ofIllinois.
2.
Respondents
—
SKOKIE VALLEY ASPHALT, CO., 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 President of
Skokie Valley Asphalt Co., Inc. represented by David S. O’Neill, 5487 N. Milwaukee
Avenue, Chicago, IL 60630-1249 and Michael Jawgiel
of 5487
N. Milwaukee Avenue,
Chicago, IL 60630-1249.
1
/
/
\/\~
FACTS ON THE RECORD
The Respondents have not received all ofthe discovery material relevant to this matter.
Consequently, the Respondents reserve the right to amend its statement with respect to the “Facts
on the Record” in its hearing brief.
1
Skokie Valley Asphalt Co., Inc. was an Illinois corporation that operated at 700
.
Lake St
in Grayslake, IL. (Dep. ofEdwin L. Frederick at 8).
2.
Edwin L. Frederick is a resident ofIllinois whose home address is 6361 Innsbruck Court,
Libertyville, Illinois (Dep. ofEdwin L. Frederick at 7).
3.
Richard J. Frederick is a resident ofIllinois whose home address is 814 Ellen Way,
Libertyville, Illinois (Dep. ofRichard J.. Frederick at 8).
4.
Richard J. Frederick was vice president of Skokie Valley Asphalt Co., Inc. (Dep. of
Richard J.. Frederick at 14).
5.
Skokie Valley Asphalt had a garage and kept equipment storage, dispatch trucks and
rollers at a maintenance shop at the Grayslake location. (Dep. ofRichard J.. Frederick at
8).
6.
Skokie Valley Asphalt did not perform mixing of asphalt at the Grayslake facility. (Dep.
of Richard J.. Frederick at 8).
7.
Richard J. Frederick did not have responsibility for day-to-day operations at the Skokie
Valley Asphalt site in Grayslake.(Dep. ofRichard J.. Frederick at 17)
8.
Bob Christensen, an employee ofSkokie Valley asphalt Co., Inc. Hadresponsibility
completing DMR submittals for Skokie Valley. (Dep. ofRichard J.. Frederick at 23).
9.
At the time that Skokie Valley NPDES permit was due for renewal, the officers ofthe
company discussed the matter with representatives of the IEPA and were ofthe
impression that they would not be required to apply for an individual permit because there
Grayslake operation would be covered by a blanket permit to be issued to the Illinois
Truckers’ Association or the Asphalt Paving Association. (Dep. ofRichard J.. Frederick
at 32 to 35).
10.
Skokie Valley Asphalt Co., Inc. retained Jim Huff of Huff and Huff Inc. to address the
problem of the discharge to the Avon Ditch. (Dep. ofRichard J.. Frederick at 47 to 50).
11.
After Skokie Valley was sold the business records for Skokie Valley were taken to the
landfill in Grayslake by the new owners ofthe business. No copies were maintained.
(Dep. ofRichard J.. Frederick at
55
to 58).
2
12.
No gasoline was stored in underground storage tanks at the site. (Dep. of Edwin L.
Frederick at 13).
13.
Edwin L. Frederick was the President of Skokie Valley Asphalt Co., Inc. (Dep. ofEdwin
L. Frederick at 36).
14.
Skokie Valley paid to have booms put into the water near the Skokie Valley asphalt plant
in Grayslake in response to allegations of a discharge. (Dep. ofEdwin L. Frederick at
47).
PLEADINGS
The
Complainant brought a cause ofaction against the Defendants pursuant to Section 42
ofthe Illinois Environmental Protection Act, 41 5ILCS 5/42 (2000) (“Act”).
2.
Section 12(f) ofthe Act provides as follows:
No person shall:
a.
Cause threaten or allow the discharge ofany contaminant into the waters ofthe
State
...
without an NPDES permit for point discharges issued by the Agency
under section 3 8(b) of this Act, or in violation of any term or condition imposed
by such permit...
3.
Section 305.102(b) of the Board regulations provides as follows:
Reporting Requirements
b.
Every holder ofan NPDES Permit is required to comply with the monitoring,
sampling, recording and reporting requirements set forth in the permit and this
chapter.
4.
Standard Condition No. 19 ofthe NPDES Permit No. IL0065005 provides as follows:
The permittee shall not make any false statements, representation or certification in any
application, record, report, plan or other document submitted to the Agency or the US
EPA, orrequested to be maintained under the permit.
5.
Section 3.09.102(a) ofthe Board Water Pollution Regulations provides as follows:
NPDES Permit Required
a.
Except as in compliance with the provisions ofthe Act, Board regulations and
CWA, and the provisions and conditions of the NPDES permit issued to the
discharger, the discharge ofany contaminant or pollutant by any person into
waters of the State from a point source or into a well shall be unlawful.
3
6.
Section 309.104(a) ofthe Board Water Pollution Regulations provides as follows:
Renewal
(a)
Any permittee who wishes to continue to discharge after the expiration date ofhis
NPDES Permit shall apply for reissuance of the permit not less than 180 days
prior to the expiration date ofthe permit..
7.
Section 309.102 (a) ofthe Board Water Regulations provides as follows:
NPDES Permit Required
a)
Except as in compliance with the provisions of the Act, Board regulations and the
CWA, and the provisions and conditions ofthe NPDES permit issued to the
discharger, the discharge ofany contaminant or pollutant by any person into
waters ofthe State from a point source or into a well shall be unlawful.
8.
Section 305.102(b) ofthe Board Water Pollution Regulations, provides as follows:
Reporting Requirements
b)
Every holder of an NPDES Permit is required to comply with the monitoring,
sampling, recording and reporting requirements set forth in the permit and this
chapter.
9.
Special Condition No. 4 of SVA’s NPDES Permit No. 1L0065005 provides as follows:
“The permittee shall record monitoring results on Discharge Monitoring Report forms
using one such form for each discharge each month. The completed Discharge
Monitoring Report form shall be submitted monthly to IEPA, no later thanthe 1 ~ day of
the following month, unless otherwise specified by the Agency.”
10.
Special Condition No. 1 ofSVA’s NPDES Permit No. IL 0065005 provides as follows:
“Samples shall be taken in compliance with the effluent monitoring requirements and
shall be taken at a point representative ofthe discharge, but prior to entry into the
receiving stream.”
11.
Section 12(a) ofthe Act provides as follows:
No person shall:
a)
Cause or threaten or allow the discharge of any contaminants into the environment
in any State so as to cause or tend to cause water pollution in Illinois, either alone
or in combination with matter with other sources, or so as to violate regulations or
standards adopted by the Illinois Pollution Control Board under this Act.
12.
Section 304.105 ofthe Board Water pollution Regulations provides, in pertinent part, as
4
follows:
Violation ofWater Quality Standards
In addition to the other requirements ofthis Part, no effluent shall, alone or in
combination with other sources, cause a violation ofany applicable water quality
standard...
13.
Section 304.106 ofthe Board Water pollution Regulations provides, in pertinent part, as
follows:
Offensive Discharges
In addition to the other requirements of this Part, no effluent shall contain settleable
solids, floating debris, visible oil, grease, scum, or sludge solids. Color, odor and
turbidity must be reduced to below obvious levels.
14.
Section 304.141(a) ofthe Board Water Pollution Regulations provides, in pertinent part,
as follows:
NPDES Effluent Standards
(a)
No person to whom an NPDES Permit has been issued may discharge any
contaminant in his effluent in excess ofthe standards and limitations for that
contaminant which are set forth in the permit.
ISSUES OF FACT AND LAW
Did
any and/or all of the Respondents cause or allow any ofthe violations alleged in the
Plaintiff’s Second Amended Complaint?
2.
Did the activities any or all ofthe Respondents caused or allowed violations ofSection
12 (f) ofthe Act and 35 Ill. Adm. Code 305.102(b)?
3
Did the activities any or all ofthe Respondents caused or allowed violations ofSection 12
(f) of the Act and 35 Ill. Adm. Code 309.102(a) and 309.104(a)?
4.
Did the activities of the State discharge the duties ofthe Respondents to file for renewal
ofits NPDES permit?
5.
Does the Complainant’s failure to timely file its Complaint against the Respondents
create a defense under the doctrines of laches and equitable estoppel?
5
APPLICATION OF LAW
1.
The Respondents are in the processing ofidentifying case law both in the Illinois Court
system and ofthe Illinois Pollution Control Board in support oftheir position. The
Respondents can not complete this process until it has received all ofthe discovery
material in this matter. The Respondents reserve the right to amend this hearing brief
when additional case law materials have been identified.
2.
It is argued that Richard J. Frederick and Edwin L. Frederick did not cause or allow any
of the alleged violations set forth in the Complaint.
WITNESSES
1.
Respondent Edwin L. Frederick will be testifying as a fact witness on behalfofthe
Respondents.
2.
James Huff will be testifying as a fact and expert witness on behalfofthe Respondents.
EXHIBITS
1.
The Respondents efforts to compile a list ofexhibits to be used at hearing has been
hindered by the fact that the discovery process in this matter has not been completed. The
Respondents reserve the right to submit exhibit items at a later time.
2.
The Respondents reserve the right to utilize any document produced during discovery or
used during trial by the Complainants.
Respectfully submitted,
42~)i
Dav.id’~.O’Neill
44~i’
David S. O’Neill
5487 N. Milwaukee Avenue
Chicago, IL 60630-1249
773 283-6916
Attorney Code No.: 52275
6
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Hearing Brief by hand delivery
on September 22, 2003, upon the following party:
Mitchell Cohen
Environmental Bureau
Assistant Attorney General
188 W. Randolph, 20th Floor
Chicago, IL 60601
/
D~dS. O’N~iII
NOTARY SEAL
SUBSCRIBED AND SWORN TO ME this
~
dayof
Aft.
,20
~
~
1~N~1
RE CE ~V ED
CLERK’S OF~CE
SEP 2 2 2003
STATE OF ILLINOIS
Complainant,
Pollutton
Control
Board
Enforcement
SKOKIE VALLEY ASPHALT, CO., 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
)
President of Skokie Valley Asphalt Co., Inc.
)
)
Respondents.
)
NOTICE OF FILING
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe Illinois
Pollution Control Board, the Respondents’s Hearing Brief, a copy of which is hereby served
upon you.
DaviØ~S~O’Neill
September 22, 2003
David S. O’Neill
5487 N. Milwaukee Avenue
Chicago, IL 60630-1249
773 283-6916
BEFORE THE ILLINOIS POLL
v.
)
)
)
PCB 96-98
Attorney Code No.: 52275