CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

APR

15

2004

PEOPLE OF THE STATE OF ILLINOIS,

STATE OF ILLINOIS

F

)

PoIIut~onControl 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 l5~of April,

2004, we filed with.

the Illinois Pollution Control Board The People of the State of

Illinois’

Closing Rebuttal Arguu~entand Reply Brief,a true and

correct copy of which

is attached ‘and hereby served upon you.

Respectfully submitted,

LISA MADIG~N

Attorney General

State of Illinois

BY:

MITCHELL L.

CO

N

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.,

20th Floor

Chicago,

Illinois

60601

(312)

814-5282

---

SERVICE LIST

JMr. David O’Neill

lMr.

Michael

B. Jagwiel

.Attorneys at Law

5487 North Milwaukee

Chicago, Illinois 60630

Ms. Carol Sudman

Bearing Officer

Illinois Pollution Control Board

600

S.

Second Street,

Suite 402

Springfield,

Illinois

62704

---

RECEfl~ED

BEFORE THE

ILLINOIS POLLUTION

CONTROL BOARI9LERK’S OFFICE

PEOPLE

OF

THE

STATE

OF ILLINOIS,

)

APR

152004

)

STATE OF ILLINOIS

Complainant,

)

Pollution Control Board

)

v.

)

No.

PCB 96-98

)

SKOKJE VALLEYASPHALT,

CO., INC.,

)

an flhinois 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.

)

THE PEOPLE OF THE STATE OF ILLINOIS’

CLOSING

REBUTTAL

ARGUMENT

AND

REPLY

BRIEF

Now comes the Complainant, PEOPLE OF THE STATE OF

1LLINOIS, ex rel LISA

MADIGAN, Attorney General ofthe

State ofIllinois,

and pursuant to Hearing Officer Sudnian’s

October 31, 2003, Orderpresents their closing rebuttal argument and reply brief.

I.

FACTS

Rather than address each and every misstatement of fact contained in Respondents’

Closing Argument and Post Trial Brief(“RCA”), the People of the State ofIllinois

(“People”) rely

on the facts contained in the Trial Record made October 30th and 31st, 2003. The People will,

however, point out a few errors in RCA because their facts or statements have no basis in the

record. For example:

1

---

A.

RESPONDENTS REPEATEDLY VIOLATE PERMIT REQUIREMENTS

In RCA, theyclaim “there

were a few violations for total suspended solids.”

Respondents’

actual number ofNPDES

permit discharge violations for Total Suspended Solids

(“TSS”) will never really be known, but it is clear from the record that they violated the TSS

concentration limits more than a dozen times.2 The 30 day average concentration for storm water

discharges SVA reported in the Discharge Monitoring Report (“DM.R”) form submitted to the

Illinios EPA for August, September,

and October,

1991; February, November, and December,

1992; May and June, 1993; and April,

1995 were in excess ofthe concentration limits allowed in

their NPDES permit.3 The daily maximum discharge concentration SVA reported for August

and

October 1991,

June 1993, and April

1995

also were in excess ofthe concentration limits allowed

in theirNPDES permit.4

These TSS concentration limit violations were submitted on DMR forms to the Illinois

EPA by SVA. Respondents failed to submit any DMRs

in accordance with their NPDES permit

for years.5

Even though SVA’s NPDES permit became effective in May of 1986

and required

‘RAC at 4.

(Note: the first 8 pages ofRAC are not numbered in the People’s copy. The

People added the numbers for easier reference.)

2Tr. at 53

-

58;

Compi. Exh.s 1,9,

10;

11,

12,

13,

14,

15,

16 and 17.Obviously

Respondents knew theywere required to submit monthly DMRs, but chose to ignore the permit

requirement.

~Tr.

at

53-58;

Comp. Exhs.

1,9,10,11,12,13,14,15,16

and

17.

~Tr.

at 53

-

58; Comp.

Exhs.

1, 9,

11,

16 and

17.

~Compi. Exh.s

8

and 26.

2

---

that they submit DMRs beginning in June, 1986, SVA did not submit any DMRs that

year.6

Likewise, SVA did not submit any DIVIRs in 1987.~In a March 13,

1987,.letter to the Illinois

EPA, Respondents admit not only that theyfailed to

submit theirDMRs, but also that they

discharged from their site without any monitoring.8

The letter is

in response to

an illinois EPA

letter dated March 6,

1 997~9The Illinois EPA explained in that letter that Respondents were

required to

submit DMRs on a monthly basis.’°

Yet, a year and a halflater explaining whythey

still have not submitted any reports, Respondents incredibly claim they”.

.

.

did not know that we

were under an obligation.

.

.“

to

file monthly DMRs.~Obviously Respondents knew they were

required to

submit monthly DMRs, but willfully chose to ignore the permit requirement.’2

SVA submitted only two DMRs, rather than the twelve required by their permit, for year

1988.13 Respondents admit they did not submit any earlierDMRs

in a letter written to the Illinois

6

Tr. at 49 and Comp.

Exh.s

1

and 26.

~Tr. at

50;

Comp.

Exhs.

1

and

8A.

S

Compi. Exh. 34.

SVA’s March 13,

1987, letter is attached as an exhibit to the Huff Site

Investigation and Work Plan. See also, the Illinois EPA letter dated March 6,

1997, and SVA’s

November 9,

1988, letter attached as exhibits

in front ofand behind

SVA’s 3/13/87 letter.

~Compi. Exh. 34. The Illinois EPA letter is also attached as an exhibit in front ofSVA’s

3/13/87, letter.

‘°

Compl. Exh. 34.

The Illinois EPA letter is also

attached as an exhibit in front ofSVA’s

3/13/87, letter.

~‘

Compl. Exh.s 26 and 34.

SVA’s November 9,

1988, letter attached as exhibit after

SVA’s 3/13/87 letter in Compi. Exh. 34.

12

Compl. Exh.s

1,

8 and 34 (March 6,

1987, Illinois EPA letter attached as an exhibit).

‘3Tr.

at

51,

52;

Comp. Exhs.

1

,8B, and 26.

3

---

EPA signed by Richard Frederick.’4 In the same letter, Respondents state theywill now submit

DMIR reports as required.’5 Nevertheless, in 1989, SVA failed to submit DMRs for the months of

April, June, August, September, October, November, and December.’6 Again, in a January 1990

letter Respondents admit that they failed to submit DMRs as requiredby their NPDES permit and

assure the Illinois EPA that DMR omissions will not occur again.’7 Yet,’ in that same year, SVA

failed to submit a DMR for the month ofSeptember.’8 And

again, in 1992, SVA failed to

submit

their DM’IR forthe month ofJuly.’9

Whether SVA committed additional TSS concentration limit violations during the many

months they failed to submit DMRs is not known. SVA repeatedly failed to submit their DMRs

.possibly because they did not want to submit TSS concentration limit violations to the Illinois

EPA.

..

Also, it is not known whether Respondents filed false DMRs to

the Illinois EPA because

ofTSS concentration limit violations. Remember, if SVA submitted their DMRs, they were

sometimes late and false.2°For example, SVA did not submit their December 1990 DMR, which

‘4Tr.

at 289

-

91; Comp. Exh. 26.

‘5Comp.Exh.26.

16

Tr. at 52;

Comp. Exh.

8C.

‘7Comp. Exh.

27.

‘~

Tr. at

52;

Comp. Exh. 8D. Note: the question in the transcript indicates 1999; however,

the answer by the witness, and the exhibit refers to

1990.

1999 appears to

be a typographical

error, or a mistatement by Assistant Attorney General Cohen.

‘~

Tr. at 53;

Comp. Exh. 8F.

20Tr.at37-41;Comp.Exhs.

1,2,3,4,5and8.

4

---

was due January

1991, until April

25,

1991

~21

J~

was signed and certified by Richard J. Frederick.22

Other than the date SVA put on the December

1990 DMR,

the data and document are identical to

the data and document SVA submitted for its November

1990

DMIR.23 This is not the only time

Respondents committed the “photocopythe form-change the date-resubmit” deception. They

repeated it again in 1991.

SVA’s January 1991

DMR was due February 15,

1991.24

Respondents

did not submit it to the Illinois

EPA until April 25,

1991.25

The Illinois EPA received SVA’s

February

1991 DMR before their January DMR.26 Other than the dates Respondents wrote in, the

data and document in the January and February 1991 DMRs are identical.27

Respondents

admit in RCA that they willfully and knowingly submitted the data from one

month’s test to the Illinois EPA for two separate months.28 Respondents then claim that at some

21

Tr. at 37; Comp.

Exhs.

1,

3 and 8D.

22

Tr. at 37; Comp.

Exh.

3.

23

Tr. at 37, 38;

Comp. Exhs.

2 and

3. Note: the line ofquestioning related to

Complainant’s Exh.

2

is missing from the transcript. It should appear approximately at the end of

page 36 before the questions related to Complainant’s Exh.

3.

Comp. Exh. 2

was admitted into

evidence and questions linking Comp. Exhs. 2

and 3 are in the transcript.

24

Tr.

at 39; Comp. Exh. 4.

25

Tr.

at 39; Comp.

Exh. 4 and 8E.

26

Tr.

at 39; Comp. Exh. 4,

5

and 8E.

27

Tr.

at 40; Comp. Exh. 4 and

5.

28

RCA. at

5

-

6. Respondents concede they filed false reports to the illinois EPA. Other

than Respondents admission found in the factual background section ofRCA, Respondents

choose to ignore the issue in the “Analysis ofthe Culpability ofthe Respondents” section. RCA

at 21- 22. Later in their Section .42(h) analysis, Respondents again change theirposition arguing

for no penalty because it is the Illinois EPA’s fault that they filed false reports. RCA at 39

-

41.

5

---

unknown point in the future they corrected the false filing.29 In doing so, Respondents cite to page

485 ofthe

Trial Transcript.3°There Respondent Edwin Frederick testifies that Respondents’

Exhibit 4 is a letterwith corrected reports explaining misplaced, ormis-sent DMRs.3’

Respondents’ Exhibit

4 is

a letter from Respondent Richard Frederick to theirattorney dated May

13,

1993. In that letter Respondents give a completely different explanation about their DIvIR

submissions than the one theyprovide this Board.32 It also contradicts an explanation SVA gave to

the Illinois EPA about failing to submit DMRs in l990.~~

Were the false reports submitted to the

Illinois EPA because ofTSS concentration limit violations?

Consider this too; up until at least May of 1991, the whole time period their NPDES

permit was in force and months after it expired, SVA did not have an accessible effluent discharge

sampling point.34 Where or how SVA took the samples is unknown. Without a representative

discharge sampling point all ofSVA’s DMR submissions are suspect.35 Chris Kallis, Illinois EPA

Field Inspector, noted this in

1991 when he wrote”..

.

due to inadequate sampling points the

accuracy ofthese reports is in serious question.

.“~

29

RCA at 6.

30

RCA at 6.

31

RCA at 6.

32

RCA at

5

-

6; Resp. Exh. 4.

33Pl. Exh. 27.

34Tr at 139

-

42;

Compi. Exh.s

1

and

19.

~

Compi. Exh.

19.

36

Compi. Exh.

19.

6

---

No

one will ever know how manytimes Respondents violated the

TSS concentration

limits. However, it is clear based on Respondents own submissions that they violatedtheir

NPDES permit by discharging in excess oftheir TSS concentration limits many times.37

B.

RESPONDENTS KNOWINGLY CAUSE

-

WATER POLLUTION EVENT TO LAST LONGER

In discussing the waterpollution in the Avon-Fremont Drainage Ditch in 1994 and

1995,

RCA states that “the

IEPA, USEPA and others failed to determine the source ofthe

discharge.”38 That statement, like manyothers

in RCA, ignores the evidence in the record.39 The

Illinois

EPAwith the help ofthe United States Environmental Protection Agency (“USEPA”) and

Respondents’

own environmental consultant determined that SVA was the source ofthe water

pollution discharged into the Avon-Fremont Drainage Ditch.4°Respondents should have

prevented this water pollution incidentby remediating their site years

earlier. Since they did not

remediate before December, 1994, Respondent should have at least assisted in the water pollution

investigation and admitted there were underground storage tanks on their site so the oily discharge

could be

cut offsooner.

The USEPA determined that the oily discharge polluting the water in the Avon-Fremont

37Tr. at 53

-

58;

Compi. Exh.s

1,9,

10,

11,

12,

13,

14,

15,

16 and 17.

38RCAat7.

~ See, for example, Compl. Exh.s

23, 24

(and USEPA POLREP ofMay 3,

1995,

and

Huff letter ofMay 4,

1995

attached), 25 and

34; Resp. Exh.

6.

40

See, for example, Compl. Exh.s

23, 24

(and USEPA POLREP ofMay 3,

1995,

and

Huff letter ofMay 4,

1995, attached), 25 and 34;

Resp. Exh.

6.

7

---

Drainage Ditch came from the SVA site.4’ Respondents obviously agreed.42 On April 25,

1995,

while the USEPA was again investigating the oily discharge, Respondents admitted to Betty

Lavis, USEPA On-Scene

Coordinator (“OSC”), that”.

.

.

they had found the leak and would

address the problem.”43 In terms ofenforcement with the USEPA, Respondents signed a “Notice

ofFederal Interest in an Oil Pollution Incident.”~

Respondents agreed to submit a clean-up

project plan to

the USEPA for review.45 Respohdents agreed to dispose ofthe used oil absorbing

boom in the Avon-Fremont Drainage Ditch, install and continue to monitor a new boom, plug the

field tiles,

and search for other sources ofthe release.46 The USEPA required SVA to search for

additional sources for the release on their site because the leaking storage tank did not contain

enough oil to

explain the extent of the continued release into the Avon-Fremont Drainage Ditch.47

The USEPA suspected that, based on SVA’s past practices, there might be a pooi ofoil product

accumulated under the SVA

site.48

Again in 2000, Betty Lavis of the USEPA wrote another Pollution Report related to the

41

Compi. Exh.

25; Resp. Exh.

6.

42

Compi. Exh. 25.

‘~

Compl. Exh. 25.

~‘

Compl. Exh. 25.

“~

Compl. Exh. 25.

46

Compl; Exh.

25.

~

Compl. Exh. 25.

~ Compi. Exh.

25.

8

---

SVA site in Grayslake.49 Besides referencing a SVA oil release affecting Grays Lake in

1975,

SVA’s discharge limits under a required NPDES permit, and the reason the SVA site was placed

on the CERCLA

list, she also summarized the

1995 SVA water pollution incident affecting the

Avon-Fremont Drainage Ditch.5°“In April,

1995, a petroleum release occurred from the

SVA site

into the Avon-Fremont Drainage ditch.”5’ Ms. Lavis

“.

.

.

traced the release back to a leaking

underground heating oil tank on the SVA

site.”52 The USEPA determinedthe source ofthe

1995

oily discharge to be the SVA site.53

The Illinois EPA worked with the USEPA during the

1995

SVA waterpollution

investigation.54 Their determination was the same; the source ofthe oily discharge into the Avon-

Fremont Drainage Ditch was the SVA

site.55

When Respondents finally took responsibility forthe oily discharge into the Avon-

Fremont Drainage Ditch and the contaminated condition of their site, their consultant, James

~

Resp. Exh.

6. A copy is also

included in Compl.

Exh.

34 as an attachment to Huff’s

Site Investigation and Work Plan.

50Resp. Exh.

6. A copy is also

included in Compi. Exh.

34

as an attachment to Huff’s

Site Investigation and Work Plan.

~‘

Resp. Exh.

6. A copy is also

included in Compl. Exh. 34 as an attachment to Huff’s

Site Investigation

and Work Plan.

52

Resp. Exh.

6.

A copy is also

included in Compl. Exh. 34 as an attachment to Huff’s

Site Investigation and Work Plan.

~ Compl. Exh. 25; Resp. Exh. 6. A copy ofResp. Exh.

6 is also included in Compl. Exh.

34 as an attachment to Huff’s

Site Investigation and Work Plan.

~ Compl. Exh.s 22, 23,

24 and 25;

Compl. Exh.

6.

~ Compi. Exh.s 23, 24,

25 and 34 (See

CERCLA Report, Site Team Evaluation

Prioritization, attached as an exhibit, p. 4).

9

---

Huff, also determined that the source of the discharge was the SVA site.56

Nothing,

especially oil,

should have been discharged into the Avon-Fremont Drainage

Ditch from the SVA site given the terms oftheir NPDES permit and SVA’s history ofrepeated

water quality violations.57 SVA’s NPDES permit, when it was in force, allowed them to discharge~

storm waterinto Grays Lake via a storm sewer.58 The Avon-Fremont Drainage Ditch does not

flow into Grays Lake; it flows to the north into Third Lake.59

The SVA site had years worth ofwater quality issues and oil releases known to the

Respondents starting long before the

1994/1995 release into the Avon-Fremont Drainage Ditch.6°

For example: In July of

1975,

SVA”..

.

released oily wastes into Grays Lake via a tile system

that empties into the

lake. SVA conducted a limited cleanup ofthe release.”6’ In the late

1970s,

56

Compi. Exh.s 23, 24 (see also letter from James B. Huff, P.E. dated May4,

1995,

attached as exhibit),

and 34 (see, for example, pp.

14

-

17, 69, and

the CERCLA Report, Site

Team EvaluationPrioritization, attached as an exhibit, p.

6).

~‘

Compl. Exh.

1, 6,

18,

19, 20, 22, 24, 34 and Resp. Exh.

6.

58

Compi. Exh.s

1,

19, 20, 22, 24 and 34.

~ Compl. Exh.s

18,

19 (see June 4,

1991, memo to Bill Busch attached), 22, 23,

24,

25

and 34.

60

Compi. Exh.s

7 (seep. 3, Item No. 7),

18,

19

(see June 4,

1991, memo and D.L.P.C.

Complaint Investigation Form attached), 22,

24, 34 (see, for example,

pp.

10

-

12; Jan. 2,

1985,

letter from Donald Manhard Associates, Inc.

Consulting Civil Engineers; CERCLA Report, Site

Team Evaluation Prioritization pp.

3

-

4; CERCLA Screening Site InspectionReport, pp. 2-9 to

2-11;

USEPA Pollution Report ofJune

13, 2000;

and Letter Report prepared for the USEPA by

Ecology and Environment, Inc. May 23, 2000,

p.

3

attached as exhibits) and Resp. Exh.

6.

61

Compl. Exh. 34: CERCLA Screening Site Inspection Report, pp. 2-9 to 2-11;

USEPA

Pollution Report ofJune

13, 2000; and Letter Report prepared for the USEPA by Ecology and

Environment, Inc. May23, 2000,

p.

3

attached. Resp.

Exh.

6.

10

---

SVA had a practice ofdisposing ofliquid asphalt on their unpaved site.62 When itrained, oily

matter would wash away into waters ofthe State.63 Several years before

1985,

years

worth of

residue’ from SVA’s operations caused oil wastes to be discharged into Grays Lake.64 InMay of

1985, oil contaminating the Avon-Fremont Drainage Ditch originated from SVA.65 Based on

SVA’s water quality violations, the Illinois EPA (and theVillage ofGrayslake) required SVA to

obtain a NPDES permit that set discharge limits for the retention basins.66

In 1988, the Illinois EPA investigated the SVA site for groundwater and soil

contamination from their surface impoundments, or retentionbasins, and discovered that SVA’s

waste possessed hazardous constituents including (crude oil or refined petroleum product

components) toluene, ethylbenzene, and xylene.67

As a result ofSVA’s site history,

in 1990 it was placed on the Comprehensive

Environmental .Response, Compensation and Liability Inventory System (“CERCLIS”).68 This led

62

Compi. Exh. 24.

63

Compl. Exh. 24.

64

Compl. Exh. 34: Jan. 2,

1985, letter from Donald Manhard Associates, Inc.

Consulting

Civil Engineers.

65

Compl. Exh. 34: CERCLA Screening Site Inspection Report, pp. 2-9 to 2-il.

66

Compl. Exh. 24 and 34 (p.

11

and CERCLA Report,Site Team Evaluation

Prioritization, pp.

3

-

4; USEPA Pollution Report ofJune 13, 2000;

and Letter Report prepared

forthe USEPA by Ecology and Environment, Inc. May23,

2000,

p.

3 attached as exhibits); Resp.

Exh.

6.

67

Compi. Exh.s 22, 24

and 34 (CERCLA Screening Site Inspection Report, pp. 2-9 to 2-

11

attached as an exhibit).

68

Compl. Exh.s 22, 24

and 34: p.

10 and CERCLA Report, Site Team Evaluation

Prioritization,

p.

1;

CERCLA Screening Site Inspection Report, p.

1-1; USEPA Pollution Report

of June 13,

2000; and Letter Report prepared for the USEPA by Ecology and Environment, Inc.

11

---

to a 1991

Comprehensive Environmental Response Compensation Liability Act (“CERCLA”)

Screening Site Inspection Report.69 Respondents were well aware ofthese oil discharges and

illinois EPA, USEPA activities. In fact, the illinois EPA, on behalfofthe USEPA, interviewed

Respondent LarryFrederick while preparing the CERCLA Screening Site Inspection Report.7°

Yet, not once, with all ofthese environmental issues, did Respondents investigate their

own site to determine the extent ofcontamination for possible remediation. But, in December,

1991, Respondents had the audacity to~write

to the Illinois EPA claiming to

be

“.

.

.

partners in

protecting the environment.

.“~‘

They go on to

state that “for

us, a clean environment

and

good housekeeping arejust plain good business” and express interest

“.

.

.

in a clean, neat and

environmentally sound operation...

~“72

IfRespondents meant what they said, they would have

remediated their site long before the 1994/1995

oil release into the Avon-Fremont Drainage Ditch.

Partners

in protecting the environment do not lie to the government environmental

protection agencies investigating another oil release near the SVA site. But that is exactly what•

May 23, 2000,

p.

3

attached as exhibits; and Resp. Exh.

6.

69

Compl. Exh.s 22, 24

and 34:

p.

10. A complete copy ofthe report is attached to the Site

Investigation Work Plan Respondents’

consultant James Huff submitted to the Illinois EPA,

Compl. Exh. 22, 24

and 34. See also, USEPA Pollution Report ofJune

13, 2000;

and Letter

Report prepared forthe USEPA by Ecology and Environment, Inc. May23, 2000,

p.

3 attached

as exhibits to Compl. Exh. 34 and Resp. Bxh.

6.

70

Compi. Exh. 34, CERCLA Screening Site Inspection Report, p.

2 -4. Though

Respondents

consultant, James Huff, prepared Compi. Exh. 34

for submission to the IllinOis

EPA in 2000, he learned about the

site’s “environmental

issues” including

“.

.

.

oil releases, and

the placement ofthe facility on the CERCLA list in 1990” through a FOJA request

“.

.

.

and

interviews with Edwin L. and Richard J. Frederick.” Compl. Exh. 34, pp.

8

-

10.

~‘

Compl. Exh.

7.

72

Compl. Exh. 7.

12

---

Respondents did.

The Illinois

EPA began investigating this particular oil release into the Avon-

-

Fremont Drainage Ditch in December

1

994•73 The IllinoisEPA wentto the areamany times to

investigate the complaints ofoil in the ditch.74

OnMarch 22,

1995, Illinois EPA Field Inspector,

Chris Kallis discussed the oil discharge with Respondent Richard Frederick and asked him

whether there were anyunderground storage tanks (“UST”)

on the SVA

site.75 RichardFrederick

said no.76

A month later Respondents’ story changed.77 On April

1 ~

while discussing the spill in the

ditch with USEPA OSC Betty Lavis, Respondents Richard and Larry

Frederickadmittedthere are

USTs on site, but denied that they leaked or were in use.78 On April 2S~,

however, Respondents

admitted to finding a leak which turned out to be in a unregistered leaking UST.79 Two LUST

incidents followed.80

Did Respondents know about the underground storage tanks on SVA’s site in December

1994, or March and April

1995? Of course they did.8’ Edwin and

Richard Frederickknow the site

~ Compi. Exh. 22.

~ Compi. Exh.

22.

~ Compl. Exh.

22.

76Compl. Exh.

22. See

also Compi. Exh. 23.

77Compl. Exh.s 24 and 25.

78

Compl. Exh.

25.

See

also Compi. Exh.s

23

and 24.

~ Compl. Exh.s 24; 25

and 34.

80

Compi. Exh.

34.

~‘

Compi. Exh. 34, beginning p. 6.

13

---

history.82 Their family owned Liberty Asphalt before SVA and operated the site for decades.83 The

Frederickbrothers worked forLiberty Asphalt.84 Theytold their consultant James Huff that SVA

acquired the assetsfrom Liberty in approximately 1975.85Respondents Edwin

and Richard

Frederickare the

only SVA

shareholders and owners; theyhave always

run the company and been

the corporate officers

~86

The threeUSTs thathad to beremoved after the April 1995LUST

incidentwere installedin 1978.87

-

“Partners in protecting the environment” claiming to be interested in an environmentally

sound operation would not willfully, knowingly,

and intentionally lie about a potential pollution

source on their site during an oil pollution incident and investigation. Respondents did.

Even withoutremediating their site before this water pollution incident, Respondents

could have shortened the time oil was released into the Avon-Fremont Drainage Ditch by more

than thirty days, from late April to March 22”~’,had they not lied

about the USTs on

site. Real

partners in protecting the environment would have stopped the oil release in December of1994, or

January

1995

when the complaints and investigation

started.88

82

Compi. Exh. 34.

83

Tr.

at 279, 432

-33; Compl. Exh. 34.

84Tr.at279,432-33.

85

Compi. Exh.

34,

p.

7.

86

Tr.

at 277, 436; Compi. Exh. 35.

87

Compi. Exh.

34,

p.

8.

~ Compi. Exh. 22.

14

---

C.

THE FACTS ARE

IN THE RECORD

There is no way to know how many times Respondents violatedtheir NPDES permit by

exceeding the TSS concentration limits.

The record is clear, however, that Respondents repeatedly

violatedthe terms oftheirNPDES permit by filing false DMRs, failing to file DIVIIRs, and

exceeding the TSS concentration limits.

Respondents also caused or allowed manywater pollution incidents.

The water pollution

.event charged i,n this case was easily preventable. Since they did not remediate the site before

December 1994, Respondents had ‘a duty to assist in the:waterpollution investigation.89 Instead,

Respondents willfully, knowingly and intentionally mislead the environmental protection agencies

causing the water pollution event to

last much longer than necessary.

The People of the State ofIllinois stand by the

facts that are in the record.

II. WHAT IS

RESPONDENTS’ DEFENSE?

The People asked this question earlier in its’ “Closing Argument” because Respondents

had pending the affirmative defenses of laches and equitable estoppel, but failed to

allege any

facts, or introduce any evidence in support. Now,

in RCA they state that Respondents Edwin

Frederick and Richard Frederick should be dismissed under the doctrines oflaches and equitable

estoppel.9°The basis for Respondents’

statement appears to

be that they lost theirrecords many

years

after this case was filed because the records were thrown out by the company that bought

89

The Constitution ofthe

State ofIllinois, Article XI, Section

1, states that it is the public

policy ofthis

“.

.

.

State and the duty of eachperson to provide and maintain a healthful

environment...

.“

90 RCA at

14.

15

---

SVA’s assets for over $8.2 million.9’

A.

RESPONDENTS CANNOT

CLAIM

LACHES

BECAUSE THEY

LOST THEIR OWN RECORDS

The People ofthe

State ofIllinois

filed the Complaint for environmental violations in this

case in November,

1995.92

SVA retained counsel David O’Neill, the same attorney who represents

Respondents

Edwin and Richard Frederick, by at least March, 1996.~~

Respondents, Edwin and

Richard Frederick, the only SVA shareholders, sold SVA’s assets in 1998

for over $8.2 million.94

In 1998, this case was still pending, and David O’Neill represented the Respondent.95

In 1998, Respondents were represented by counsel in their multi-million dollar sale of

assets.96 Respondents and their counsel knew this case was pending.97 They specifically listed this

case withinthe Asset Purchase Agreement.98 Respondents and their counsel agreed”.

.

.

to

indenmif~’

or defend and hold buyer harmless from all such liabilities.

.

.“

relating to their site or

business including the failure to comply with statutes and regulations relating to water and liquid

~‘

RCA at 10-

11; Compl. Exh. 35.

92

RCA at 8; PCB docket.

~

PCB Docket: 3/12/96.

David O’Neill continues to

represent all Respondents.

94RCA at 10;

Compl. Exh. 35 (Vol.

1).

95PCB Docket.

96

Compl. Exh. 35, p.

20. Section b.C. ofRespondents Asset Purchase Agreement is

titled “Approval of Proceedings and Legal Matters by Sellers’ Counsel” and provides that all the

legal matters

and documents related to the

Asset Purchase Agreement shallbe approved by, or

found satisfactory to Seller’s counsel.

~‘

Compi.

Exh. 35,

p.

14 and Schedule 6(M).

~

Compl. Exh.

35,

p.

14 and Schedule 6(M). “Schedule

6(M) Litigation and Arbitration.

2. Illinois Attorney General enforcement action filed in November,

1995

..

.

16

---

waste pollution.99 And, Respondents agreed to obtain, at their expense after closing, a “no further

action” letter from the illinois EPA pertainingto the environmental conditions existing at their

site.’°°

The Asset Purchase Agreement also gave Respondents access to the site at all times

after

the closing for the purpose ofobtaining the “no further action” letter.’°’

-

In 1998,

all the parties to the Asset Purchase Agreement and their counsel knew the

environmental condition ofthe site and knew there was an environmental enforcement action

pending)°2

RCA claims that SVA’s records were included as part ofthe

$8.2 million sale of assets.103

It is difficult to

determine whether that

is true, or not.’°4It is not difficult to determine that

Respondents had access to,

and were responsible

for, their own records.’°5

The Asset Purchase Agreement gave full access to the property and records belonging, or

relating to Respondents.’°6The Asset Purchase Agreement also provided Respondents with the

use ofat least one office at the site through April 30, 2000.’°~

And, the Asset Purchase Agreement

~ Compi. Exh. 35, p.

21

-

22.

100

Compi. Exh.

35,

p. 26.

‘o’ Compl. Exh.

35,

pp. 26

and 29.

102

Compi. Exh. 35.

103

RCA at 10,

Compl. Exh. 35.

104

Compl. Exh.

35.

‘°sCompi. Exh. 35, p. 29.

106

Compi. Exh. 35,

p. 29.

107

Compl. Exh.

35, p. 29.

17

---

required all Respondents records to be removedbefore April 30,

2000, by the Respondents.’°8

RCA states that Respondents “Edwin and Richard Frederick had no control over the new

owners decision to

dispose ofthese records and also had no reason to suspect that these records

would be ofvalue to them.”°9That is not believable. Respondents have an $8.2 million

agreement that gives them full access to the records and the right and obligation to remove their

records.”°From November 1995 through April 2000 SVA was in litigation for environmental

violations.” In January 2000, Edwin and RichardFrederick, with full knowledge oftheir counsel,

listed themselves

not only as witnesses in this case, but also as the two people responsible for the

entire

SVA operation.”2 How could Respondents and their counsel have no reason to suspect their

records would be ofvalue to them?

If, the new owners disposed ofSVA’s records, it is because Respondents chose not to take

responsibility for their records, just as they chose not to take responsibility for complying with

their NPDES permit, for remediating their site before

1994, and for their leaking underground

storage tank.

108

Compi. Exh. 35, p.

29.

109

RCA at

10.

“o Compl. Exh. 35, p. 29.

“

PCB Docket.

112

RCA at 8

-

9; PCB Docket, January 21,2000; Response to Complainant’s First Set of

Interrogatories

to Skokie ValleyAsphalt, Inc., see responses to

interrogatories no.

1,

7 and 19. A

copyofthe Response to

Complainant’s First Set ofInterrogatories is attached to Complainant’s

“Motion to

Strike Respondents’

Motion to

Dismiss Edwin L. Frederick, Jr.,

and Richard J.

Frederick or, in the Alternative, Complainant’s Response to

and Requestto

Deny Respondents’

Motion to Dismiss Edwin L. Frederick and Richard

J. Frederick” filed May7, 2003.

18

---

In light ofthese facts, Respondents have the temerity to assert the affirmative defense of

laches against the Illinois EPA.

B.

RESPONDENTS CANNOT CLAIM

LACHES

AGAINST THE ILLINOIS EPA

Laches cannot be invoked against a governmental body,

like

the illinois EPA, that is

attempting to

perform its duties, or in actions involving public rights.”3 The Illinois EPA has a

duty to enforce the Illinois environmental laws

and regulations, and

the public has a right to a

healthy and safe

environment.”4

1.

The Frederick Brothers were Named Over a Year Before the Hearing.

The People of the State of Illinois properlyadded the Frederick Brothers as Respondents

in a Second Amended Complaint during the summer of 2002.”~

After they were properly named

as Respondents,

the Frederick Brothers were allowed to, and did, conduct discovery.”6 The

hearing tookplace at the endofOctober, 2003.”~

RCA claims that”..

.

the Respondents Richard Frederick and Edwin Frederickhave been

prejudiced in their ability to produce records, recall witnesses and remember events relevant to

“~

Cook Countyv.

Chicago Magnet Wire Corp.,

152 fll. App.3d 726, 727-28, 504 N.E.2d

904,

905

(1st Dist.

1987).

114

415 ILCS

5/4

(2002), The Constitution ofthe

State ofIllinois, Article XI, and Pielet

Bros. Trading Inc. v. Illinois Pollution Control Board,

110111. App.

3d 752, 758, 442 N.E. 2d

1374, 1379 (SthDist. 1982).

“~

RCA at 9; PCB Docket for July 26, 2002.

116PCB Docket.

“~

PCB

Docket and Trial Transcript.

19

---

their defense in this matter.”8

.

2. The Frederick Brothers Were Not Prejudiced.

The Respondents had the abilityto, but chose not to, produce records.’19 In 2000, the

Frederick Brothers and David O’Neill listed the witnesses who would testify on behalfof SVA.’2°

Theylisted Edwin L. Frederick, Richard J. Frederick, and James Huff.’21

Who testified at the

hearing about the environmental violations relevant to this case on behalfof all Respondents?

Edwin L. Frederick, Richard J. Frederick, and James Huff.’22

There was never any indication that

because the only two SVA shareholders,-the two

corporate officers responsible forthe entire SVA

operation, were named as individual Respondents, that theyneeded any other evidence to defend

themselves. They are the same two witnesses for SVA defending themselves and the corporation

against the same environmental violations.

Respondents claim ,of prejudice is baseless.

118

Respondents’

Closing Argument, p.

10.

119

Compl. Exh. 35, p.

29. See also

Section hA above.

120

to

Complainant’s First Set ofInterrogatories to

Skokie Valley Asphalt, Inc.,

see responses to

interrogatories no.

1

and

19.

121

Response to

Complainant’s First Set ofInterrogatories to Skokie Valley Asphalt, Inc.,

see response to interrogatoryno.

19.

122

See trial transcript.

20

---

C.

RESPONDENTS’ LACHES DEFENSE MUST FAIL

Laches is a doctrine which states that

Complainant’s cause of action is barred because

Respondent has been misled or prejudiced due to

Complainant’s delay in asserting a right.’23

RCA does not claim that laches applies to SVA because ofthe Illinois

EPA’s delay in asserting

the environmental violations.’24 RCA implies the doctrine oflaches should benefit the Frederick

Brothers only because there are compelling circumstances and they were somehow misled.125 If

Respondents can prove there are compelling,

or extraordinary circumstances, then, and only then,

can laches be invoked against a governmental body, like the illinois EPA, attempting to perform

its function, or in actions related to public rights, like a healthy and safe environment.’26

There are no such circumstances in this case.

,

The People amended the Complaint in 1997 to

add counts, not Respondents,

for additional

environmental violations. Neither party did

any discovery before the People filed the First

Amended Petition.’27 After the Frederick Brothers admitted in discovery that they were the two

people responsible for the entire

SVA operation, the People filed the Second Amended Complaint

adding them as Respondents.128 Respondents claim the compelling circumstances which prevented

123

City ofRochelle v. Suski, 206 Ill. App. 3d 497, 501, 564 N.E.2d 933, 936 (2d Dist.

1990).

‘

‘24RCAat8.

‘25RCAat8 -14.

‘26Cook Countyv. Chicago MagnetWire Corp., 152 Ill. App.3d 726, 727-28, 504N.E.2d

904,

905

(1st Dist.

1987).

‘27PCB Docket.

128

RCA at 8

-

9. PCB

Docket. Thiscase was transferred tome,

AAG Cohen, from AAG

Cartwright

who resigned fromthe office, in

June,

2002. Sometime during Juneor July, 2002, I

21

---

them from defending themselves, but not from defendingthe corporation, include the following:

the violations occurred a longtimeago, theyno longerwork for the dissolved corporation,

and

they finishedthe corporations’ discovery

responsesyears ago.’29

Respondents did have to defend themselves

against environmental violations that occurred

a long time ago.

They are the same

exact violations Respondents had to defend on behalfofthe

corporation.

Respondents chose to sell SVA’s assets for more than $8.2 million, dissolve the

corporation, and retire. In doing so, Respondents knew they would

still have to defend the

corporation against the environmental violations

already charged;

the same exact violations

Respondents had to defend on their own behalf.

Respondents.completed some discovery for SVA years ago; the additional discovery

necessary for all parties related to the same exact environmental violations Respondents were

defending on behalfofthe corporation and themselves.

There are no circumstances whatsoever to indicate Respondents were misled, or

prejudiced by the Illinois EPA.

Respondents’

claim of laches must fail. Complainant is not barred from naming the

Fredericks as Respondents more than a year before the hearing. The Fredericks were not misled

or

learned from Respondents’

counsel, David O’Neill, that even though the case was set for hearing,

no depositions had been taken yet. Upon review of the large case file, I learned that the Frederick

Brothers admitted to

running the entire SVA operation and that the Complaiht had not yet been

amended to

add them as Respondents in accordance with, among other law, People v.

CJR

Processing. Inc., 269 Ill.App.3d

1013, 647 N.E.2d 1035 (3~’

Dist.’ 1995). I filed the Second

Amended Complaint in July, 2002. This all happened before Joel Sternstein entered his

appearance in the case.

‘29

RCA at 13-

14.

22

---

prejudiced by being named as Respondents, or by the Illinois

EPA. The Illinois EPA was and

is a

governmentalbodyperforming its functionwhich involves public rights,namelyprotecting the

right ofthepublic

to have

a clean and safe environment. The IllinoisEPA did not create any

extraordinaryor compelling circumstances that would invoke laches.

The Respondents have~no

defense.

III. EDWIN &

RICHARD

FREDERICK ARE PERSONALLY LIABLE

FOR THE ENVIRONMENTAL VIOLATIONS

In RCA, Edwin and Richard ‘Frederick admit they are personally liable for the

environmental violations charged in this case. Theydon’t really come out

and say theyare liable.

Infact, they try to deny liability. But in doing so, they describe some oftheirresponsibilities as the’

shareholders and corporate officers runningSVA

and

explain thattheyhad the ability and

authority to prevent the violations.

Fortunately, in Illinois environmental law, corporate officers are personally liable, for their

company’s environmental violations if they actively participated in the violation, or had the

authority to prevent the violation.’30 All parties agree that the standard for corporate officer

liability in environmental enforcement actions is .set fOrth in People v.

C.J.R.

et al.’3’

As stated

before, a corporate officer can be held personally liable for his company’s environmental

violations ifhe waspersonally involved in

or

actively participated in a violation ofthe Act,

or

if

130

People v.

C.J.R. Processing, Inc.,

et al.,

269 Ill. App.

3d

1013, 647 N.E.2d 1035 (3d

Dist. 1995) andPeople v.

Agpro, Inc. and David J. Schulte,

281

Ill.Dec. 386,

,

803

N.E.2d

1007, 1019 (2”~Dist. 2004).

‘~‘

Id.SeeRCAatl5.

23

---

he had the abilityor authority to

control the acts or omissions that gave rise to the violation.’32

In People

v.

Agpro, Inc., the Court relied on the

~

case and found the Presidentofthe

corporationpersonally liable for thecompany’s environmental violations in

part because he did

not take precautions to prevent the pollution,

he

ran

the operations at the site, spent time at the

site, and supervised employees.’33 In this case, the Frederick Brothers didnot take precautions to

prevent pollution, ran the entire SVA operation, worked at the site, supervised employees,

and

much more.

-

Edwin FrederickconsultedwithSVA foremen and acted as the liaisonwithgovernment

officials.’34He signed the lateNPDES permit application, other documents, and letters submitted

to the illinois EPA.’35 Hewas present at the site during environmental protection agencies’

inspections

and

investigations.’36

13’2

~.

at 1018, 647 N.E.2d at 1038. The C.J.R. Court relieduponthe Eighth Circuit’s

decision in United States v. Northeastern Phar. And Chem. Co., Inc..

et al.,

810 F.2d 726 (8th

Cir. 1986). In Northeastern Pharmaceutical, the federal government sought to have a

corporation’s president and vice-presidentheld personally liable fortheir company’s improper

hazardouswaste disposal. In holding these corporate officers personally liable, theEighth Circuit

noted, thatwhile the presidentofthe corporation wasnot involved in the actual day-to-day

decisions to transport and dispose ofthe hazardouswaste, he “was the individual in charge of

and directlyresponsible for all ofIhis company’s

operations, including those at the subject

plant, and he had the ultimate authority to control the disposal of his

company’s

hazardous

substances.” 810 F.2d at 745 (underline added).

133

People v. Agpro, Inc.

and David J.

Schulte, 281 I1l.Dec. 386,

,

803 N.E.2d 1007,

1019

(2fld

Dist.

2004).

‘~‘

RCA at 2.

135

Compi. Exh.s 6, 7, 19 (April 22, 1991, andMay 7, 1991, letters attached), 28, 29 and

34 (Site Remediation Program Application and Services Agreement).

136

Compl. Exh.s

19

(June

1,

1991, memo

attached), 23, 24,

25 and 34

(LetterReport

prepared for the USEPA by Ecology and Environment, Inc. May23, 2000

attached as exhibit).

24

---

Richard Frederick also dealt withSVA foremen, hired and controlled the employees, and

approved the paymentofinvoices.’37He signed and certifiedSVA’sDMRs submitted to the

Illinois EPAwhether theywere late, false, or indicated other

NPDES permit

violations.’38Hetoo

was present at the site

during environmental

protection agencies’ inspections and investigations.’39

In RCA, Respondents admit that both “Edwin and Richard Frederick made major

management decisions and decisions on spending large amounts ofmoney on behalf of SVA.”4°

Edwin and Richard Frederick finally contacted the consulting firm ofHuff and Huff, Inc. to try

and control the oily discharge into the Avon-Fremont Drainage Ditch.’4’ And “it

is Edwin and

Richard Frederick who continue this effort.

.

.“

to

this day to get site closure.’42

Edwin and Richard Frederick are personally liable for the environmental violations oftheir

companybecause they were personally involved in

or

actively participated in the violations ofthe

Act,

or

they had the ability or authority to control the acts or omissions that gave rise to the

violations

~

They could have complied with the NPDES requirements. Theyhad the ability and

authority to prevent the

1994/1995

water pollution incident from ever happening by remediating

~

RCA at 2.

138

Compl. Exh.s 2,3,4,

5,9,

10,

12,

13,

14,

15,

16 and

17.

‘~

Compl. Exh.s

18,

19 (June

1,

1991, memo and D.L.P.C. Complaint Investigation Form

attached), 22, 23, 24, 25 and 34 (Letter Report prepared for the USEPA by Ecology and

Environment, Inc. May 23, 2000 attached as exhibit).

‘40RCAat3.

‘~‘

RCA at 33.

142

RCA at 34.

143

C.J.R. at 1018,

647 N.E.2d at

1038 and Agpro, 281

ill.Dec. 386,

—,

803 N.E.2d

1007, 1019 (2’~”Dist.2004).

25

---

the

site beforehand. And, they could have shortened the water pollution incident. They are both

individually liable.

IV.

WHAT

PENALTY IS APPROPRIATE?

Anypersonwho violates

any

provisionofthe Act shall be liable fora civilpenalty.144

SVA, Edwin Frederick, and Richard Frederick are all personswho repeatedlyviolatedprovisions

ofthe Actand therefore, are liable for a civil penalty.

Section 42~provides

the law for civil penaltieswhen the Act is violated.’45 Section 42(a)

states that anyperson that violates anyprovision of thisAct shall be liable for a civil penalty not

to exceed $50,000 for the violation and an additional civil penalty not to exceed $10,000 foreach

day during which the violation continues.’46 Since the evidence established that Defendants

knowingly

and repeatedlyviolated sections ofthe Act,

they are liable fora significant civil

penalty.’47

“The statutorymaximum penalty is a natural or is the logicalbenchmark fromwhich to

begin considering factors in aggravation or mitigation ofthe penalty amounts. This is consistent

with the discussion in the U.S. Supreme Court

j~i

and

Gwaltney decisions, withU.S.EPA

Penalty Policy, andwith Illinois decisions discussing amaximum penalty.”48

‘~

415 ILCS 5/42(a) (2002).

145

415 ILCS 5/42

(2002).

146

415 ILCS 5/42(a) (2002).

~

415

ILCS 5/12(a),

12(f) and 42(a) (2002).

148

Illinois EPA v. Barry,

PCB 88

-

71 (May 10, 1990); see alsoPeople v. Gilmer, PCB 99

-

27 (August 24, 2000) and People v. PanhandleEastern Pipe LineCompany,PCB 99

-

191

26

---

In determining the appropriate civil penalty, according to Section 42(h) ofthe Act, this

Boardcanconsider anymatters ofrecord in mitigation or aggravationofpenalty, including those

listed factors.’49

A.

DURATION & GRAVITY

Respondents never complied with their NPDES permit. They failed to submit any DMRs

for the first month, May 1986, and manyyears

to come. That violation alone lasted for years.

After admitting they did not file any DMRs,

Respondents agreed to submitthem as required.

From 1989 through 1992, Respondents failed to submit nine more

DMRs:

durationmorethan 2

years plus 9more times overthe nextthree years. Respondents neverhad a representative

discharge sampling point through at leastMay, 1991: duration

5

years (more

than

1825 days),

gravity

immeasurable

-

who knows what and how

muchwas discharged from their site. They

violated their TSS concentration limit requirements more than a dozen times that weknow of.

Respondents were supposed to submit

their

NPDES permit

renewal application to the Illinois

EPA around September

1,

1990,

180 days before March

1,

1991. Respondents continued to

discharge after

March

~

and

didnot submit it until June of 1991: duration270 days,

gravity

severe

-

Respondents were never in compliance with their permit.

Respondents filed false reportswiththe IllinoisEPA. Thishas nothing to dowith the fact

thatRespondents never had a representative discharge sampling point

and all their data is suspect;

and it has nothing to

do with the fact that they continued to discharge from their site after their

permit expired. Thishas to do withthe fact thatRespondents intentionallyphotocopied

DMRs

(November 15, 2001).

149

415 ILCS 5(42(h) (2002).

27

---

from onemonth, changed the date, and submitted it to’ the Agencycharged withmonitoring

and

protecting our environment.

Nothing,

in terms ofpermit compliance, can represent a more serious

violation.

The onlything thatôould be more serious than intentionally filing false reports withan

environmental protection agency, would be to

lie to their representatives investigating a water

pollution incident. Respondents

did that too.

The 1994/b

995

waterpollutionin the Avon-Fremont

Drainage Ditch, another oily discharge, was easily preventable. Nevertheless, it happened, and it

happened forover

5

months. Respondents could have shortened it by at least amonth ifnot more.

B.

PRESENCE

OR ABSENCE OF DUE DILIGENCE

Respondents

consistently demonstrated a complete lack ofdue diligence.

Even though Respondents’ initial NPDES permit went in to effect in May 1986 and

required monthly submission ofDMRs, Respondents failed to submit

any DMRs to the Illinois

EPA until November

1988.150

After admitting the violations and agreeing to

correct it,

Respondents neglected to

submit DMRs many more times over the next four years.’5’ Rather than

take a sample from a representative discharge point, submit it for analysis, fill out a simple DMR,

and mail itto the Illinois EPA, Respondents

submitted false reports.

They did not have

a

representative discharge sampling point for years. They had numerous TSS concentration limit

violations. They failed to submit their NPDES permit renewal application on time. It wasn’t a few

days late; it was 9 months late, and they continued to discharge.

By the time the source ofthe water pollution in the Avon-Fremont Drainage Ditch was

~

Tr.

at 32, 33, 49-51; Comp. Exhs.

1,

8A, 8B and 26.

‘~‘

See Tr. 48-53; Comp. Exhs.

1, 8A,

8B,

8C, 8D and

8E.

28

---

determined, Respondents sitehada twenty year historyofwater quality

and

oil

contamination

issues. Iftheywere diligent,Respondents would have at least started remediating their sitebefore

December 1994. Iftheywere diligent, theywould have at least steppedup andhelped withthe

investigation onMarch

22~~d,

1995,

if

not months earlier.

C.

HOW MUCH DID RESPONDENTS BENEFIT BY REPEATEDLY

FAILING TO COMPLY WITH

THE ACT?

Although it maybe difficult to quantify in a precise manner how much economic benefit

Respondents derivedby repeatedly failing to complywiththe Act, it is clear the amount is

significant.

All that is known for sure is that in 1998 the Respondents were able to sell SVA’s

assets for over$8.2 million. Respondents committedthe violations beginning adecade earlier.

The most expensive violation, water pollution, started in 1994.

The cost ofsubmitting an NPDES permit on time, installing a representative discharge

sampling point,

taking samples, analyzingthe samples, and submitting a

DIVER

to the IllinoisEPA

is nominal. Nevertheless, over all the years,month after month, thatRespondents violated their

NPDES permit

requirements, they realizedaneconomic benefit. Theydid not spend money to

complywith theirNPDES permit requirements.

Respondents also did not spend money to remediate their sitebefore the 1994/1995 water

pollution incident. Had Respondents paid to

remediate the SVA site years earlier, the oily

discharge from their sitemaynot have contaminated the Avon-FremontDrainage Ditch. Had

Respondents paid to remediate the site before the 199,4 discharge, the site’s contaminated

conditionmay nothavetaken 10 years to remediate. As of October 31, 2003, there was still

29

---

remediationwork left to perform in relation to the“no

further action’ letter.’52

Respondents’ claim that theyhave since

inCurred

costs andmade expenditures related to

their discharges into theAvon-Fremont Drainage Ditch and Grays Lake and that those

expenditures should be credited against their penalty.’53 Not so. The expense ofcompliance

incurred after an environmental violation, doesnot offsetpenalty or economic benefit. In the

Panhandle Eastern case, the Board held that the fact “that

a violator will still incur costs to

come

into compliance does not eliminatethe economic benefit ofdelayed compliance,

i.e.,

funds that

should be spent on compliance were available for otherpursuits.”54

The United States Environmental Protection Agency also

emphasizes the well-established

goal of ensuring thatmembers ofthe regulatedcommunity, like Respondents, have a strong

economic incentive to comply with environmental laws through the assessment of a civil penalty

that at least recovers the economicbenefit of noncompliance.’55 Section 42(h) ofthe Actwas

recentlyamended to emphasize this exact point.’56The courts employ the conceptofeconomic

benefit to level the economic playing field andto prevent violators from gaining an unfair

advantage over their compliant competitors.’57The goal ofconsidering economicbenefit is to

‘~

Tr.

at 389

-

90. James Huff, Respondents’

environmental consultant explained that

“we

areworking on the site investigation completion report.We have an ongoing soil

extraction operation at the facility. We have a riskassessment to do and corrective action

completion report yet to do.”

~

RCA at 38, 39,41,42 and 43.

‘54People v. PanhandleEastern PipeLine Company,PCB 99

-

191

(November 15, 2001).

~

64 Federal Register at 32948.

156

415

ILCS

5/42(h)

(2002).

‘57United States v. Smithfield Foods, Inc., 972F.Supp. 338, 348 (E.D.Va. 1997).

30

---

prevent a violatorfrom profiting from its noncompliance

and

wrongdoing.

Respondents profited. Whether SVA’s assetswould have been less valuable had

Respondents paid to remediate their site

and comply with environmental laws before the sale is

unknown. Whether SVA would have had fewer assets to

sell and Respondents would have

profited less eachyearhadtheypaid to remediate their site and comply with environmentallaws

is

unknown. What is known is

that Respondents had the use ofthat moneythat should have been

spent remediating their siteand complyingwithenvironmental laws to enhance theirbusiness.

And, Respondents were able to sell theirbusiness assets for more than $8.2 million.

D.

WHAT

AMOUNT

OF PENALTY WILL DETER

FURTHER

VIOLATIONS

OTHERS SIMILARLY SITUATED?

The People ofthe State ofIllinois cannot imagine this

situation happening ever again:

repeatedly violating NPDES

permit requirements, not

over a period ofmonths, but years;

filing

false reports with the‘Illinois Environmental Protection Agency; obstructing a water pollution

investigation knowing a site has a 20 year history ofwater quality violations and oil

contamination issues; and in committing these environmental violations, enhancing a family

owned business to

sell it for millions ofdollars.

To enhance voluntary compliance”..

.

and to

assure that adverse effects upon the environment are fully considered and borne by those who

cause them”,’58 the Peopleprovide the following penalty analysis for Respondents’ many

violations.

Count I.

Respondents intentionally filed false reports with the Illinois EPA two times.

The

only appropriate penalty is the maximum:

$50,000 per violation. Anything less detracts from the

158

415

ILCS 5/1(b) (2002).

31

---

purpose ofthe Act and the Illinois EPA, and compromises the Illinois environment. $100,000.

Count II.

Respondents failed ,to file for theirNPDES permit renewal on time.

They filed it

over 270 days late.They continued to violate theterms ofthe

permit and discharge from their site

without apermit. $27,000.

‘

Count III.

Respondents

failed to submit DMRs in April, June, August, September,

October, November, and December,

1989; September,

1990;

and July,

1992: nine

times. Normally

a penalty of$1,000.00 per missed DMR would be appropriate, but not in this case. Respondents

also

failed to file DMRs

in 1986,

1987, arid 1988. Plus, two times they wrote to the Illinois EPA

acknowledging the fact that theyfailedto

file

DMRs

andassured the agency theywould comply

in the future. After that, nine times they failed to file. Aggravating. $3,000.00 per missed DMR.

9

times $3,000.00 equals $27,000.

Respondents never had an accessible representativedischarge sampling point while their

NPDES permit was in force. What’s worse is that Respondents Edwin and Richard Frederick

werephysically threatening

and

verbally abusive toward IllinoisEPAField Inspector

Chris

Kallis

when he was trying to

do hisjob as the law and terms ofRespondents’ NPDES

permit clearly

allowhim to do; to determinewhetherRespondents had yet to install a representativedischarge

sampling point. Mr. Kallis was trying to protect the

environment.’59 $50,000.

Count IV.

The water pollution incident in the Avon-Fremont Drainage Ditch in

1994 that

lasted for five months was preventable. Respondents could have shortened the incident and

reduced the resultingenvironmental impactby overthirty days. Environmental protection agency

investigatorswere called outbased on complaints of oil in the ditchDecember 23, 1994,

January

159

Compl. Exh.

19, see June 4,

1991,

memo

attached.

32

---

5,

March

1, March 9, March 22, April 18, and April

25,

1995. Respondents obstructed their

investigation. The statutorymaximum penalty is $50,000 for December

23td

plus $10,000 perday

for the next

123

days through April

25th,

or another $1,230,000. The maximum civil penalty for

water

pollution is $1,280,000. Respondents could have reduced the

length

of time the oily

discharge was released by at least

34

days;

andtherebyreduced themaximum penaltyby

$340,000.

Respondents’ waterpollution penalty should be not less than $250,000.

Count V. Respondents

violated their TSS concentration limits for the 30 day average

concentration for storm water discharges in August, September, and October, 1991;

February,

November, and December,

1992; May and June, 1993; and April,

1995.160

They violated the TSS

concentration

limits for daily maximum discharge concentration in August and October 1991,

June 1993, and April

1995.161

Thirteen times in all. Again, a penalty of $1,000.00 per TSS

concentration

limits violation would normally be appropriate, but not here. Each ofthese

violations that SVA submitted to the Illinois EPA were after their NPDES permit expired. They

continuedto discharge without apermit. And, these violations are evidentbecause the

Respondents finallyhave an accessible representative dischargesampling point. All the data

submitted while their

NPDES permit was in force

and without an accessible representative

discharge sampling point is suspect. Aggravating. $3,000.00 per TSS concentration limit

violation.

13 times

$3,000.00 equals $39,000.

‘60Tr.at53-58;Comp.Exhs.

1,9,10,11,12,13,14,15,

16 and

17.

161

Tr.

at 53-58; Comp. Exhs.

1,9,11,16 and

17.

33

---

Total Penalty Summary.

Count I

Filing False Reports

‘

$

Count II

Filing NPDES Renewal Late

$

27,000

Count III

Failing to File

DMRs

‘

$

‘

Inaccessible Sampling Point

$

50,000

Count IV

Water Pollution

‘

$

Count V

TSS

Violations

$

39,000

TOTAL PENALTY

‘

$

493,000.00

The People of the State of Illinois acknowledge that the maximum penalty is the

appropriate starting point when consideringthe civil penalty for violations ofthe Environmental

Protection

Act.

Obviously

this case

has many factors in aggravation for the Board to consider, and

the Respondents sold the assets to their business for manymillions ofdollarsmore than the

penalty listed in the People’s penalty analysis. However,the People ofthe State of illinois believe

a penalty ofat least $493,000.00 will serve to

deter future violations, enhance voluntary

compliance,

and assure that adverse effects upon the environment are fully considered and borne

by

those persons

who cause them.’62

E.

PREVIOUSLY ADJUDICATED VIOLATIONS

The People are not aware of any previously adjudicated violations against anyofthe

Respondents. However, Respondents’ site has a historyofwater quality violations and oil

162

415

ThCS 5/1(b)

(2002).

34

---

contamination issues dating back to

1975, and the violations in this case started in

1980s.

F.

SECTION 42(h) FACTORS

(6) AND

(7)

ThePeople ofthe State ofIllinois do not believe factors 6and 7 apply in this case. Section

42 ofthe Act, as noted earlier, was recently amended, but did not take effect until January-i,

2004.163

The evidence in this casewas presented at hearing October30 and 31,2003. The

evidentiaryrecord was closed at the end of the hearing. However, the People will briefly address

factors 6 and 7 here because Respondents’ use them in RCA is

disingenuous.

1. Whether Respondents Self Disclosed?

RCA states for Count I that “the

Respondents were not in a position to self-disclose the

violations because theywere not aware ofthe allegedviolation..

~“~~‘l

Regarding the filing false

DMRs, Respondents intentionally photocopied another DMR, changed the date, and submitted it

to the Illinois

EPA. Not only were Respondents in a position to

self-disclose, they were in a

position not to file falseDMRs.

For Count II,RCA states theydid self-disclose because theywrote the state about whether

they had to

file an application.’65 Respondents NPDES application for renewal was due around

September 1,

1990.166

Respondents first wrote to the IllinoisEPA in response to a “Failure to File

Renewal Application Compliance Inquiry Letter” dated April 22,

1991.167

163

See Public Act 93-575; 415 ILCS 5/42(h)(6) and (7).

164

RCA at 38.

165

RCA at 39.

‘66Compl. Exh.

1.

167

Compl. Exh. 28.

35

---

For Count ifi, RCA again states that “the

Respondents were not in a position to self-

disclose the violations because theywere not aware ofthe alleged violation..

~‘168

Thatis

a

blatant lie. Their NPDES permit explained when DMRs were to be submitted and where samples

were to be taken.’69 Ifthey did not submit the DMR, or have an accessible discharge sampling

point, they knew it. Further, the Illinois EPA notified Respondents at least two times when they

were failing to file DMRs. And two times, Respondents admitted to missing DMRs and assured

the Illinois EPA that they would not omit DIVIRs again.’70 They never disclosed the violations.

For Count IV, Respondents have no

qualms saying they

“.

.

.

did in fact self-disclose the

potential source ofthe release immediately upon discovering the source.”7’ Investigators from the

USEPA and illinois

EPA were out at the Avon-Fremont Drainage Ditch and SVA numerous times

investigating complaints of oil in the ditch beginning in December 1994. The area is surrounded

by farm fields, a nearbynursery, and SVA. Respondents hindered the oil pollution investigation

when they lied about the USTs on their site. Admitting later, when the same investigators are

again approaching the site, and the site is the only likely source ofoil contamination in the area,

that in fact there are USTs on site

and at least one is leaking is not self-disclosure.

2.

Did Respondents agree to undertake

a SEP?

RCA claims that addressing their discharges into the Avon-Fremont Drainage Ditch and

Grays Lake represents

“.

.

.

a de facto supplemental environmental project because Respondents

-

‘68RCAat4O-41.

169

Compl. Exh.

1.

170

Compl.

Exh.s 26 and

27.

171

RCA at 42.

36

---

especially Edwin Frederick

and Richard Frederick

-

took

actions

beyond the actions required to

address the discharge from theSVA site.”72A “supplemental environmental project” or “SEP” is

an environmentally beneficial projectRespondents agree to do in settlement ofanenvironmental

enforcement action thatRespondents

are not otherwise legally required to perform.’73

“De facto”

is not

defined.

Remediating a grossly contaminated site that over the years has polluted multiple bodies of

waters of

the State is an environmentally beneficial project. IfRespondents agreed to do such a

project in settlement ofanenvironmental enforcement action that theywere not otherwise legally

obligated to

do, it could have been a SEP. They did not.

The fact that the Frederick Brothers are finally remediating the site, after all these years,

does not make the project a SEP, de facto, or otherwise. First, it can easily be argued that they

have a duty and obligation to clean the waters they contaminated and

clean their own site which

contributed to

the water pollution.’74 Second, Respondents never entered into their remediation

project as part of an environmental enforcement settlement; this case went to hearing and is still at

issue.

Also, based on the fact that Respondents have a responsibility to

clean up their discharges

and

the cause ofthose discharges, remediating their own sitewould never qualify as a SEP.

Andthird, Edwin and Richard Frederick are legallyrequired to perform the site

172

RCA at 38, 39, 41, 42 and 44.

~

415

ILCS 5/42(h)(7)

(2004).

‘~

The Constitution ofthe State ofIllinois, Article

XI, Section 1, states that it is the

public policyofthis”..

.

State and the duty of each person to provide and maintain

a healthful

environment..

.

37

---

remediation for another reason.’75 Edwin andRichard Frederick didnot rernediate theSVA site

before the

1994/1995 waterpollution incident, even though the sitehad a history ofwater quality

violations and oil contamination issues since

1975. Obviously, Respondents did some work off

and on site in 1995 when all the evidence showed the SVA site caused the oily discharge in the

Avon-FremontDrainage Ditch. But, the onlywaytheycould sell theSVA assets formorethan

$8.2 million was to agree to remediate the site and get a “no further action” letter from the Illinois

EPA.’76 Theyare legally obligatedby contract to remediate the site. The long termproject to

remediate their site thathasbeen contaminated fordecades does not qualify fora SEP.

V. THE PEOPLE OF THE STATE OF ILLINOIS ARE ENTITLED

TO THEIR COSTS

AND ATTORNEY FEES FROM RESPONDENTS

Section 42 ofthe Act also explains when the award of attorneys’ fees and costs are

appropriate.’77 Section

42(f) provides that”.

.

.

the Board, or a court ofcompetent jurisdiction

mayaward costs andreasonable attorney’s fees.

.

.

to

the State’s Attorney, or the Attorney

General in

a case where he has prevailed against a person who has committed a wilful, knowing

or repeated violation ofthe Act.”78

Since Respondents’ violations of sections

12(a) and (f)

oftheAct were wilful, knowing,

and/or repeated,

the People are entitled to attorneys’ fees and costs. Respondents intentionally

175

Compi. Exh. 35.

176

Compl. Exh. 35.

‘~

415 ILCS 5/42

(2004)

178

415 ILCS 5/42

(f)

(2004)

38

---

photocopied DMRs, changed the date, and submitted them as different DMRs to the Illinois EPA.

Respondents wilfullyandknowinglyfailed to submit theirNPDES permitontime claiming

months later they did not have to. Respondents knowingly and repeatedly failed to submit DMRs.

Respondents knowinglyfailed tohave an accessible discharge sampling point while their permit

was in force. Respondents, aware oftheir site’s long history of water quality and oil

contamination issues, intentionally deceived environmental protection agencyinvestigators

causing a water pollution incident to last months longer than necessary. And Respondents

repeatedly violated their TSS concentration limits

once they installed an

accessible representative

discharge sampling point.

A.

REASONABLE ATTORNEY FEES’

ManyAssistant AttorneyGeneralswere assigned to representthePeople ofthe State of

Illinois overthe years this casehasbeenpending: Ellen O’Lauglin,(PCB Hearing Officer)

Bradley P. Halloran, Kelly A.

Cartwright, Mitchell L. Cohen (“AAG

Cohen”), Joel J. Sternstein

(“AAG Sternstein”), and Bernard J. Murphy (“AAG Murphy”).’79 The People are only seeking

attorney fees forthe time spent and work performed

by

AAGs

Cohen, Stemstein andMurphy.

Basedon the Board’s Order ofOctober 16, 2003,

AAG

Sternstein’s fee application onlygoes

through that day.’8°

~

PCB Docket.

180

Respondents’ counselDavid O’Neill usedtowork for and practicesregularly before

the PCB.Heknewof

AAG

Sternstein

while Sternstein worked for thePCB. O’Neill did not

object forover a year to

AAG Sternstein’s

appearance

in

the case, oranyworkperformedby

AAG

Sternstein.

O’Neill did not object until essentially the eve oftrial:

September 9, 2003.

AAG

Sternstein swore in a certified affidavit that he had no personal involvement in this case while

working for the PCB. Nevertheless, on October 16, 2003, fourteen days before trial, this Board

issued an Order prohibiting

AAG

Sternstein from further participatingin this case. The People

39

---

A conservative estimate oftime

AAG Cohen spent prosecutingthis

case

against

Respondents is 509.5

hours.’81 Multiplying the number ofhours AAG Cohen spent prosecuting

this case times the reasonable hourly rate of $150.00 equals $ 76,425.00

182

A conservative

estimate oftime AAG Sternstein spent prosecuting this case against Respondents is 224.5

hours.’83Multiplying the number ofhours

AAG Sternstein spent prosecuting this case times the

reasonable hourly rat~eof$150.00 equals $ 33,675.00. A conservative estimate oftime

AAG

Murphy spent prosecuting this case against Respondents is 136 hours.’84 Multiplying the number

ofhours AAG

Mui~physpent prosecutingthis case times the reasonable hourlyrate of$150.00

equals $ 20,400.00.

The People seek a total of $

130,500.00 in attorneys’ fees to be depositedby Respondents

into the “AttorneyGeneral’s State Projects andCourt Ordered Distribution Fund.”

B.

REASONABLE COSTS

In addition to being entitled to reasonable attorneys’ fees in this case, section 42(f) ofthe

Act also allows forpayment of,and the People

are entitled to, the reasonable costs incurred in

prosecuting this case. Therefore, the People ofthe State ofIllinois request an awardof$ 5,574.84

object to the Board’s October 16, 2003, Order. Under these circumstances, thePeople are entitled

to attorney fees on behalf ofworkperformed and time

spent by AAG Sternstein through October

16, 2003.

‘

181

See ExhibitA: affidavit and time sheet

summary.

182

The Board has held that $150.00 hourly rate for attorney’s fees is reasonable.

See

People v. J & F HaulingInc., PCB 02-221 (May 1, 2003), citing Panhandle, slip op. at 37 (Nov.

15,

2001).

183

See

Exhibit B:

affidavit and time sheet summary.

184

See Exhibit C: affidavit

and

time sheet

summary.

40

---

for the costs incurred in prosecuting this case against Respondents.’85 The payment for costs from

Respondents should also be deposited into the “AttorneyGeneral’s State Projects

and Court

Ordered Distribution Fund.”

The costs

are broken down as follows:

Depositions

$

3,887.65

Off-site Photocopying

$

1,119.

34

AAG Cohen’s travel &

lodging

$

305.62

AAG Murphy’s travel &

lodging

$

261.23

TOTALEXPENSES

$

5,574.84

VI. CONCLUSION

WHEREFORE,

Complainant, the People ofthe State ofIllinois, respectfully requests that

this Board find thatRespondents violated the Act as alleged in eachcount ofthe SecondAmended

Complaint and ask forthe following relief: ordering Respondents to immediately cease and desist

from

further violations ofthe Act

andBoard Regulations, assessinga civil penalty against

Respondents in an amountofnot less than $ 493,000.00

with all fines payable to

the

“EnvironmentalProtection Trust

Fund” to be used for

the advancementofenvironmental

protection activities

in Illinois, assessing Complainant’s attorneys’ fees against Respondents in the

amount

of$ 130,500.00, and assessing costs in the amount of

$5,574.84,

both attorneys’ fees and

costs payable to the “Attorney General’s ,State Projects and

Court

Ordered Distribution Fund”, all

185

See Exhibit D:

affidavit and

expense

summary.

41

---

monies duewithin thirty (30) daysofthisjudgment,

and granting such other relief as this Board

deems appropriate andjust.

PEOPLE OF THE STATE OF ILLINOIS,

ex rel.

LISA MADIGAN, Attorney

General ofthe State ofIllinois

MATTHEW

J.

DUNN, Chief

EnvironmentalEnforcement/Asbestos

Litigation Division

ROSEMARIE CAZEAU, chief

Environmental Bureau

BY:

________

Mitchell L. Cohen

Assistant AttorneyGeneral

MITCHELL L.COHEN

BERNARD MURPHY

AssistantAttorneys General

Environmental Bureau

188 W. Randolph St., 20th Floor

Chicago, Illinois

60601

(312) 814-5282/(3 12) 814-3908

1:\MLC\SkokieValley\ClosingRebuttalArgwpd

42

---

State ofIllinois

County ofLake

)

)SS

)

AFFIDAVIT

I, Mitchell L. Cohen, uponaffirmation, state as follows:

1.

Iam an AssistantAttorney General in the Environmental Bureau North ofthe

illinois Attorney General’s Office and assigned to assist in the representation of thePeopleofthe

State ofIllinois in the case styled, People v.

Skokie Valley Asphalt Co., Inc.,

et al., PCB No. 96-

98, filedbefore the Illinois Pollution Control Board.

2.

I have reviewedthe hours I spent prosecuting this case and as set forth in the

attached summary ofworkperformed, andhaving personal and directknowledge ofsame, the

undersigned certifies

that the statements set forth in this affidavit and attachment pertaining to

the hours spent prosecuting this case are

true

and accurate.

Further affiant sayeth not.

Subscribed to and affirmed before me

this

~

day of(~

ç)~~fi

2004.

~Totary

Public

PHYLUS DUN

2L

©~‘ICIALS~L~

NOTARY

PUBLIC, STATE

MY COMMISSION EXPIRES 12-7~2OO4’

Mitchell L.

Cohen

AssistantAttorney General

Environmental Bureau North

~IBIT

---

AssistantAttorneyGeneral

Mitchell L. Cohen

Hours worked related to People v.

Skokie ValleyAsphalt. Inc., Edwin & Richard Frederick

Case No. PCB

96

-

98

_____

SUMMARY OFWORK PERFORMED

Meetingre: file transfer, call to

opposing counsel

Subst. ofCounsel, Motion to Cancel Hrg, status hrg,

and file review

File review, draft/file

2lxlAniended Complaint

File review

Rev. Mo. to Strike 2”~’Amended Complaint

Resp. to

Mo. to Strike, Rev. addl. info. re: mo. to

strike, Bd.

Order

PCB Status Hrg

Research! help draftMo. todeem facts

admitted/summ.

judg., prep. for filing, rev. D’s late

answer, andone status hrg

Review andReply to D’sResponse toMotion to

Deem Facts Admitted and Motion for Summary

Judgment

Review Bd Order and

file

Motion to

Strike Aff. Defenses, Review and

Respond to D’s Motion to Dismiss Fred. Bros.

Discoveryand Motion to Strike D’sMotion to

Dismiss Fred. Bros.

Bd. Order, Review and Respond to Motion for

ExtensionofTime, Review Motion for

Reconsideration

MONTH

HOURS

May, 2002

1

hour

June, 2002

13 hours

July,

2002

11 hours

August, 2002

3 hours

September, 2002

1

hour

October, 2002

-

5

hours

November, 2002

1 hour

December, ‘2002

11

hours

January,

2003

6 hours

March, 2003

April,

2003

3 hours

19 hours

May, 2003

16 hours

June,

2003

‘

9 hours

---

AssistantAttorney General

Mitchell L. Cohen

Hours worked related to People v. Skokie ValleyAsphalt, Inc., Edwin & Richard Frederick

CaseNo.PCB96-98

Page Two

MONTH

HOURS

SUMMARY OF WORK PERFORMED

July, 2003

31

hours

Response to Motion to Reconsider, Discovery,

Motion to Compel, Deposition preparation

August, 2003

34 hours

Deposition preparation, depositions (Edwin

Frederick, Richard Frederick, James Huff, Chris

Kallis)

September, 2003

33

hours

PCB status hrg, D’s 2” Mot.

to Dismiss, pre-trial

memorandum,

trial prep.

October, 2003

129 hours

trial preparation, Bd. Order 10

-

16

-

03, Mot. to

Bar’

Testimony, Mot.s in limine, pre-trial hrgs, hearing

and travel

December, 2003

47.5 hours

Review hearing transcript and closingargument

January, 2004

40 hours

Closing Argument

March, 2004

3 hours

Read D’sClosing Argument

April, 2004

93

hours

Closing

RebuttalArgument

TOTAL HOURS:

509.5

HOURS

This is a conservative summary ofhours spent working on this

case.

1:\MLC\SkokieValley\MLCHours.wpd

---

State

ofIllinois

)

)

SS

County ofLake

AFFIDAVIT

I, Joel Sternstein, uponaffirmation, state as follows:

1.

Iam an Assistant

Attorney

General in the EnvironmentalBureau North ofthe

Illinois

Attorney

General’s Office and assigned to assist in the representation ofthe People of the

State ofIllinois in the case styled, People v. Skokie ValleyAsphalt Co..

Inc., et al., PCB No. 96-

98, filed:before the Illinois Pollution Control

Board.

2.

Ihave reviewed the hours I spentprosecuting this case and as set forth in the

attached

summary ofwork

performed, andhaving personal

arid direct knowledge ofsame, the

undersigned certifies that the statements set forth in this affidavit

and attachment

pertaining to

thehours spent prosecuting this case

are true and

accurate.

Further affiant sayeth not.

Joel Sternstein

Assistant Attorney General

Environmental Bureau North

Subscribed to

and affirmed before me

this

~3~K

day of

,

2004.

E?L~

O~L

(~otary Public

•

PHYLLIS

DU~4TON

~NOTA~RY

PtJBIJCI

STATE OF ILLlNO~S

1~SSJpNEXPRESi2.7.2OO4

cEXBIT

---

Assistant AttorneyGeneral

Joel J. Sternstein

‘

Hours

workedrelated to People v.

Skokie ValleyAsphalt Co., Inc., et al.,

PCB Case No.,96-98

MONTH

‘

HOURS

SUMMARY OF WORK PERFORMED

August, 2002

16 hours

Reviewed case file.

September, 2002

16 hours

Drafted Complainant’s Response to

Respondent’s

Motion to

Strike the 2”” Amended Complaint

(Submitted October 1).

October, 2002

.5

hours

Board status call on October

16 (includes

preparation and internal follow-up discussion).

November, 2002

.5

hours

Board status

call on November 20.

December, 2002

16.5 hours

Board status

call on December 23.

Drafted

Complainant’s Motion to Deem Facts Admitted and

Motion for Summary

Judgment (December

20).

January, 2003

14 hours

Drafted Motion for Leave to File Reply and Reply

to Respondent’s Response to

Complainant’s Motion

to Deem Facts Admitted and Motion for Summary

Judgment (January’17).

February, 2003

.5

hours

Board status call

on February 13.

March, 2003

.5

hours

Board status call on March 28.

April, 2003

32 hours

Drafted Complaint’s Motion to Strike orDismiss

Respondent’s,Affirmative Defenses including

meeting with

AAG

Cohen (April

18).

Drafted

discovery documents served on Respondents (May

7)

May, 2003

26 hours

Continued draffing discovery documents served on

Respondents (May 7). Drafted Motion to Strike

Respondent’sMo~tionto Dismiss the Frederick

Brothers or in the Alternative Complainant’s

Response

and Request to DenyRespondent’s

Motion to Dismiss

the Frederick Brothers (‘May 7).

June, 2003

.5

hours

Board status call on June 27.

---

July, 2003

26.5 hours

Board status calls on July 10 and 29 (July29

-

long

call).

Internal meeting on July 23 to discuss the

case.

DraftedFirst Motion to Compel Respondents

to Respond to

Complainant’s Discovery Requests

(July 9) Drafted Second Motion to Compel

Respondents to Respond to

Complainant’s

Discovery Requests (July 28).

August, 2003

42 hours

Preparing for depositions ofRichard and Edwin

Frederick and attending depositions ofRichard and

Edwin Frederick (August

5

and 6).

Answered

Respondent’s discovery requests submitted to

Complainant (late August).

September, 2003

24.5 hours

Board status call on September

5.

Drafted

Complainant’s Pre-Hearing Memorandum (Sept.

22).

Review Complainant’s Response to Motion to

Strike Second Amended Complaint and Recuse

Attorney Sternstein

and draft attached affidavit.

October, 2003

8.5 hours

Trial preparation with witnesses Garretson and

Kallis.

Board status call on October 7.

(Only includes hours through October

16,

2003)

TOTAL HOURS:

224.5 HOURS

This is a conservative summary ofhours spent working on this case.

It does not include time that

office law clerks spent working on this case during the summer and fall of2003 under my

supervision.

I:\MLC\SkokieValley\Sternsteinl-Iours.wpd

---

State ofIllinois

)

)SS

County ofLake

)

AFFIDAVIT

I, Bernard J. Murphy, Jr., upon affirmation, state as follows:

1.

I am an Assistant Attorney General in the Environmental BureauNorth ofthe

Illinois Attorney General’s Office and assigned to assist in the representation ofthe People ofthe

State of illinois in the case styled, People v.

Skokie Valley Asphalt Co.. Inc., et al., PCB No. 96-

98,~filed

before the illinois Pollution Control Board.

2.

I have reviewed the hours I spent prosecuting this case and as set forth in the

attached, and having personal and direct knowledge ofsame, the undersigned certifies that the

statements set forth in this affidavit

and attachment pertaining to the hours spent prosecuting this

case

are true and accurate.

Further affiant sayeth not.

B/nard/

Murphy(J~(Asst.

Chief

1Assistant Attorney General

Environmental Bureau North

Subscribed to and affirmed before me

this

~

dayofC1)._jj9

,2004.

~Notary Public

~

OFFICIAL

SEAL

~

PHYLUSDU~ITO~

~ NOTARY PUBLIC, STATE OF

LLINOIS

~9~ISSI0NEXPIREr

I

~L7.2OO4

EXHIBJ7

---

AssistantAttorneyGeneral

Bernard J. Murphy, Jr.

Hours worked related to People v. Skokie Valley Asphalt Co., Inc., et al.

PCB No.

96-98

MONTH

HOURS

SUMMARY OF WORK PERFORMED

October, 2003

-

125.5

Trial preparation, travel and trial.

November, 2003

8

,

Prepare draft ofopening closing statement.

April, 2004

2.5

,

Review and revise reply in support ofclosing

statement; preparation offees affidavit

and

statement ofhours worked.

TOTAL HOURS:

136 Hours

This is a conservative summary ofthe hours spent working on this case.

J:\MLC\SkokieValley\MurphyHours.wpd

---

State ofillinois

)

)SS

County ofLake

)

AFFIDAVIT

I, Mitchell L. Cohen,

upon affirmation, state as follows:

1.

I am an Assistant Attorney General in the Environmental Bureau North ofthe

Illinois Attorney General’s Office and assigned to assist in the representation ofthe People ofthe

State ofIllinois in the case styled, People v.

Skokie Valley Asphalt Co., Inc.,

et al., PCB No. 96-

98,

filed before the Illinois Pollution Control;Board.

2.

I havereviewed the costs incurredby the State ofIllinois prosecuting this caseand

as set forth in the attached summary of costs incurred, and having personal and direct knowledge

of same, the undersigned certifies that the statements set forth in this affidavit and attachment

pertaining to the

costs incurred in prosecuting this case are true and accurate.

3.

The State ofIllinois incurred $5,574.84

in costs in prosecuting this case.

Further affiant sayeth not.

Mitchell L.

Cohen

Assistant Attorney General

Environmental Bureau North

Subscribed to and affirmed before me

this ~k’Ldayof

,

2004.

ft

~otary

Public

OF~

~

~ NOTARY

PUBLIC, STATEOF ILLINOIS

~

I~IONEXflRES1~4j

EXHIBiT

—

D

---

People v.

Skokie ValleyAsphalt Co., Inc., et al.

PCB No. 96-98

illinois Pollution Control Board

COSTS

INCURRED BY THE STATE OF ILLINOIS

Depositions:

‘

$

3,887.65

Photocopying, off-site

$

1,119.34

AAG Cohen Travel & Lodging

$

305.62

AAG MurphyTravel & Lodging

$

261.23

TOTAL COSTS

,

$

5,574.84

---

CERTIFICATE

OF

SERVICE

I,

MITCHELL L.

COHEN,

an Assistant AttorneyGeneral,

certify

that on the l5~~1

day of April,

2004,

I caused to be’ served by

First Class Mail,

The People of the State of Illinois’

Closing

Rebuttal Argument and Reply Brief to the parties named on the

attached service list.

MITCHELL L.

COHEN

Assistant Attorney General

I

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