SIATE OF ILLINOIS

REC~~VED

CLERK’S 

OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 

OCT 2 7 2003

PEOPLE OF THE STATE OF ILLINOIS,  

)

STATE 

OFILLINOIS

Complainant,          

)

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 October 27, 2003, we filed with

the Illinois Pollution Control Board Complainant’s 

Response to

Respondents’ Motion to Bar the Testimony of Betty Lavis,

Complainant’s Response to Respondents’ Motion to Bar the

Testimony of Mike Garretson, Complainant’s Response to

Respondents’ Motion to Bar the Testimony of Don Klopke, and

Complainant’s Response to Responde~nts’ Motion to Bar the

Testimony of Ken Savage, 

true and correct 

copies 

of which are

attached and hereby served upon you.

Respectfully submitted,

LISA MADIGAN

Attorney General

State of Illinois

—

BY:

_______________

MITCHELL L. COHEN

Assistant Attorney General

Environmental Bureau

188 W. Randolph St., 20th Floor

Chicago, Illinois 60601

(312) 814-5282

SERVICE LIST

Nr. David O’Neill

Nr. Michael B. Jagwiel

Attorneys at Law

5487 North Milwaukee

Chicago, Illinois 60630

Ms. Carol Sudman

Hearing Officer

Illinois Pollution Control Board

600 5. Second Street, Suite 402

Springfield, Illinois 62704

BEFORE THE ILLINOIS POLLUTION CONTROL BOARI~EC~~v~D

CLERK’S OFFICE

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

0CT272003

STATE 

OF ILLINOIS

)

No. PCB 96-

J’g’llution Control Board

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

RESPONDENTS’ MOTION TO BAR THE TESTIMONY OF

BETTY LAVIS

Comes now, Complainant, the People of the State of Illinois,

and in Response to “Respondents’ Motion to

Bar the Testimony of

Betty Lavis” states as follows:

1. The original Complaint in this case was filed November 3,

1995. The First Amended Complaint was filed December 29, 1997,

and the Second Amended

Complaint was accepted for filing October

17, 2002.

2. Respondents’ chose never to serve Complainant with any

discovery requests from the date the

original Complaint was filed

until late July, 2003.

3. Even as late as June 9, 2003, Respondents’ filed for an

extension of time for the discovery schedule.

4. Not until this Motion to Bar testimony has Respondents’

counsel ever indicated, in any form, hearing, letter, telephone

call, or conversation, that Respondents wanted to take the

depositions of all Complainants’ witnesses.

5. Complainant would have listed Betty Lavis as a witness in

discovery ever since filing the First Amended Complaint. She was

the United Stated Environmental Protection Agency Inspector

assigned to investigate the water pollution source of the Avon

Drainage Ditch in late 1994 and 1995. At that time, she spoke

with the individual respondents.

6. The USEPA documents were provided to Respondents in

discovery.

7. Respondents’ discovery strategy cannot now be used to

claim unfair surprise, ambush, or prejudice so as to limit the

Complainant’s cases and bar the testimony of Betty Lavis.

8. Respondents’ knew, or should have known, that Complainant

would call witnesses that investigated the source of the water

pollution in the Avon Drainage Ditch in late 1994 and 1995.

WHEREFORE, Complainant requests that Respondents’ Motion to

Bar the Testimony of Betty Lavis be denied, and that Betty Lavis

be allowed to fully testify.

PEOPLE OF THE STATE OF ILLINOIS,

ex rel. 

LISA MADIGAN,

Attorney General of the

State of Illinois,

By:

MITCHELL L. COHEN

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.

20th Fl.

Chicago, IL 60601

(312) 814-5282

I;\MLC\SkokieValley\ReEproBarTest 

wpd

BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~EC~~yEDCLERK’S OFFICE

PEOPLE OF THE STATE. OF ILLINOIS,            

OCT 272003

Complainant,

SIATE OF ILLINOIS

No. PCE

Control Board

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

RESPONDENTS’ MOTION TO BAR THE TESTIMONY OF

KEN SAVAGE

Comes now, Complainant, the People of the State of Illinois,

and in

Response to “Respondents’ Motion to Bar the Testimony of

Ken Savage” states as follows:

1. The original

Complaint in this case was filed November 3,

1995. The First Amended Complaint was filed December 29, 1997,

and the Second Amended Complaint was

accepted for filing October

17, 2002.

2. Respondents’ ‘chose never to serve Complainant with any

discovery requests from the date the original Complaint was filed

until late July, 2003.

3. Even as late as June 9, 2003, Respondents’ filed for an

extension of time for the discovery schedule.

1

4. Not until this Motion to Bar testimony has Respondents’

counsel ever indicated, in any form, hearing, letter, telephone

call, or conversation, that Respondents wanted to take the

depositions of all Complainants’ witnesses.

5. Complainant would have listed Ken Savage as a witness in

discovery ever since filing the First Amended Complaint. He was

one of the Illinois Environmental Protection Agency employees

assigned to investigate the complaints of water pollution and its

source in the Avon Drainage Ditch in late 1994 and 1995. At that

time, he spoke with the individual respondents.

6. The documents that form the basis of his opinions and

observations were provided to Respondents in discovery.

7. Respondents’ discovery strategy cannot now be used to

claim unfair surprise, ambush, or prejudice so as to limit the

Complainant’s cases and bar the testimony of Don Klopke.

8. Respondents’ knew, or should have known, that Complainant

would call witnesses that investigated the source of the water

pollution in the Avon Drainage Ditch in late 1994 and 1995.

2

WHEREFORE, Complainant requests that Respondents’ Motion to

Bar the Testimony of Ken Savage be denied, and that Ken Savage be

allowed to fully testify.

PEOPLE OF THE STATE OF ILLINOIS,

ex rel. 

LISA 

MADIGAN,

Attorney General of the

State of Illinois,

By:

MITCHEL~

Assistant Attorney General

Environmental Bureau

188 W. Randolph St. 

20th Fl.

Chicago, IL 60601

(312) 814-5282

I: \MLC\SkokieValley\RespToBarTestKS.wpd

3

BEFORE THE ILLINOIS POLLUTION CONTROL BOA~J~RK’SOFFICE

PEOPLE OF THE STATE OF ILLINOIS, )                          

STATE

OCT

2

ILLINOIS

7 2003

Complainant,         

)

Pol/utj0~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

RESPONDENTS’ MOTION TO BAR THE TESTIMONY OF

DON KLOPKE

Comes now, Complainant,

the People of the State of Illinois,

and in Response to “Respondents’ Motion to Bar the Testimony of

Don Klopke” states as follows:

1. The original Complaint in this case was filed November 3,

1995. The First Amended Complaint was filed December 29, 1997,

and the Second Amended Complaint was accepted for filing October

17, 2002.

2. Respondents’

chose never to serve Complainant with any

discovery requests from the date the original Complaint was filed

until late July, 2003.

3. Even as late as June 9, 2003, Respondents’ filed for an

extension of time for the discovery schedule.

1

4. Not until this Motion to

Bar testimony has Respondents’

counsel ever indicated,

in any form, hearing, letter,

telephone

call, or conversation,

that Respondents wanted to take the

depositions of all Complainants’ witnesses.

5.

Complainant would have listed Don Klopke as a witness in

discovery ever since filing the First Amended Complaint. He was

one of the Illinois Environmental Protection Agency employees

assigned to investigate

the complaints of water pollution and its

source in the Avon Drainage Ditch in late 1994 and 1995. At that

time, he spoke with the individual respondents.

6. The documents that form the basis of his opinions and

observations were provided to Respondents in discovery.

7. Respondents’ discovery strategy cannot now be used to

claim unfair surprise,

ambush, or prejudice so as to limit the

Complainant’s cases and bar the testimony of DonKlopke.

8. Respondents’ knew, or should have known, that Complainant

would call witnesses that investigated the source of the water

pollution in the Avon Drainage Ditch in late 1994 and 1995.

2

WHEREFORE, Complainant requests that Respondents’ Motion to

Bar the Testimony of Don Klopke be denied, and that Don Klopke be

allowed to fully testify.

I :\MLC\SkokieValley\RespToSarTestDK 

.wpd

PEOPLE OF THE STATE OF ILLINOIS,

ex rel. 

LISA MADIGAN,

Attorney General of the

State of Illinois

By:

MITCHELL L.

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.

Chicago, IL 60601

(312) 814-5282

3

20th Fl.

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS, )                                    

OCT

2 7

2003

Complainant,         

)

PolJutjSTATE0~OFCon~,~ILLINOISBoard0j

v.

)

No. PCE 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

RESPONDENTS’ 

MOTION TO BAR

THE TESTIMONY OF

MIKE GARRETSON

Comes now, Complainant, the People of the State of Illinois,

and in Response to “Respondents’ Motion to Ear the Testimony of

Mike Garretson” states as follows:

1. The original Complaint in this case was filed November 3,

1995. The First Amended Complaint was filed December 29, 1997,

and the Second Amended Complaint was accepted for filing October

17, 2002.

2. Respondents’ chose never to serve Complainant with any

discovery requests from the date the original Complaint was filed

until late July, 2003.

3. Even as late as June 9, 2003, Respondents’ filed for an

extension of time for the discovery schedule.

1

4. Not until this Motion to Bar testimony has Respondents’

counsel ever indicated,

in any form, hearing, letter,

telephone

call, or conversation,

that Respondents wanted to take the

depositions of all Complainants’ witnesses.

5. Complainant would have listed Mike Garretson (or possibly

someone else working at the Illinois

Environmental Protection

Agency, Division of Water Pollution Control, Compliance Assurance

Section) as a witness in discovery ever since filing the Original

Complaint. Respondents’ NPDES permit was issued, and their

Discharge Monitoring Report (“DMR”)requirements begin, in 1986.

All

the allegations in the Complaints, except the water pollution

count, relate to Respondents’ NPDES permit and DMR5.

6. Respondents’ discovery strategy cannot now be used to

claim unfair surprise,

ambush, or prejudice so as to limit the

Complainant’s cases and bar the testimony of Mike Garretson.

7. Respondents knew, or should have known, that Complainants

would use witnesses to testify

about their NPDES permit and DMR5.

2

WHEREFORE, Complainant requests that Respondents’ Motion to

Bar the 

Testimony of Mike Garretson be denied, and that Mike

Garretson be allowed to fully testify.

PEOPLE OF THE STATE OF ILLINOIS,

ex rel. 

LISA 

MADIGAN,

Attorney General of the

State of Illinois,

By: ~

Assistant Attorney General

Environmental Bureau

188 W. Randolph St. 

20th Fl.

Chicago, IL 60601

(312) 814-5282

I :\MLC\SkokieValley\ReBpToBarTestMQ.wpd

3

CERTIFICATE OF SERVICE

I, MITCHELL COHEN, an Assistant Attorney General, certify

that on the ~  

day of October, 2003, I caused to be served by

telefax and First Class Mail 

the foregoing

Complainant’s Response

to Respondents’ Motion to Bar the Testimony of Betty Lavis,

Complainant’s Response to Respondents’ Motion to Bar the

Testimony of Mike Garretson, Complainant’s Response to

Respondents’ Motion to Bar the Testimony of Don Klopke, and

Complainant’s Response to Respondents’ Motion to Bar the

Testimony of Ken Savage, to the parties named on the attached

service list.

MITCHELL L. CO EN

Assistant Attorney General

I \MLC\Skok±eValley\NotofFilirIg.wpd