REC~VE~
LERKS OFFIC
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAY
1:~?
2004
PEOPLE
OF THE STATE OF ILLINOIS,
)
ontroj Board
Complainant,
)
)
PCB 96-98
)
v.
)
Enforcement
)
)
SKOKIE VALLEY ASPHALT, CO., INC.,
)
EDWIN L. FREDERICK, JR., individually and as
)
owner and
President ofSkokie Valley Asphalt
)
Co.,
Inc., and RICHARD J. FREDERICK,
)
individually
and as owner and Vice President of
)
Skokie Valley Asphalt Co., Inc.,
)
Respondent
)
RESPONDENTS’ MOTION TO
STRIKE
AND OBJECTIONS TO
COMPLAINANT’S CLOSING ARGUMENT AND REPLY BRIEF
The Respondents,
SKOKIE VALLEY ASPHALT,
CO., INC.,
EDWIN L. FREDERCK,
JR., individually and as owner and President ofSkokie Valley Asphalt Co.,
Inc., and RIC~IARD
J. FREDERICK, individually
and as owner and Vice President of Skokie Valley Asphalt Co.,
Inc.,, by and through its
attorney, David S. O’Neill, object to and herein move this Board to
Strike portions ofthe Complainant’s
Closing Rebuttal Argument and Reply Brief and in support
thereofstates as follows:
BACKGROUND AND LEGAL STANDARD
1.
35
Ill.Adm. Code 101.506 (2001) reads as follows:
“All motions to strike, dismiss or challenge the sufficiency of any pleading filed with the
Board must be filed within 30 days after the service of the challenged document, unless
the Board determines that material prejudice would result.”
2.
On January
15,
2004, the Complainant filed a Closing Argument and Post Trial Briefand
Motion to File Instanter in the above captioned matter. (Complainant’s Closing Argument
orCCA)
1
3.
The Respondents filed their Closing Argument and Post Trial Brief with the Board on
March 12, 2004.
(Respondents’ Closing Argument or RCA)
4.
On April
15, 2004,
the Complainant filed a Closing Rebuttal Argument and Reply Brief
in the above captioned matter. (Complainant’s Reply Brief or CRB)
5.
All ofthese filings were in accordance with the order given by the Hearing Officer at the
close of the hearing on October 31, 2003.
(Hearing)
6.
The Movant timely filed this motion to strike and objections to consistent with 35
Ill.Adm. Code 101.506 to allow the Board to determine if sections ofthe Complainant’s
Reply Briefshould be
stricken from the record.
7.
At hearing, the Hearing Officer stated that the Complainant was to
be given a opportunity
to submit a “reply” after the Complainant and the Respondents had submitted
their
“briefs”(Hearing at 522)
8.
The relevant rules concerning the context of a Closing Rebuttal Argument and Reply
Briefare stated in Dodds v.
Western Kentucky Navigation (297 Ill.App.3d 702, 697
N.E.2d 452,23 1I11.Dec.
898).
In Dodds v. Western KentuckyNavigation, the Illinois
Appellate Court, Fifth District, stated that the
scope of closing argument is within the
sound discretion ofthe court (Id. at 710).
The court also stated that the closing
arguments, commentary should be limited to facts in evidence (Id.).
9.
In People v.Woolley (205 Ill.2d 296,
793
N.E.2d
519,
275
Ill.Dec. 748), the Illinois
Supreme Court further stated that “although the character and scope ofclosing argument
is left largely to the trial court, argument designed solely to inflame the passions ofthe
jury is prohibited” (Id. at 297).
10.
In the matter before the Board,
the Hearing Officer’s order that the Complainant’s Reply
Brief was to be
a “reply” is well within the discretion ofthe Hearing Officer to determine
the scope and character ofthe closing argument.
Consequently, any
statement in the
Complainant’s Reply Brief that is not a reply to the Respondents’ Closing argument
should be stricken.
11.
Because closing arguments, commentary should be limited to facts in evidence, any
statements in the Complainant’s Reply Briefthat are not based on the evidence should be
2
stricken.
12.
Because argument designed solely to inflame the passions ofthe jury is prohibited, any
such statements in the Complainants Reply Briefmust be stricken.
OBJECTIONS
1.
The “Facts” Section of the Complainant’s Reply Brief should be
stricken in its
entirety.
The
Complainant
was
given ample opportunity to state the facts in this case in
Complainant’s Closing Argument.
In
fact, Complainant made such statements in its
Complainant’s Closing Argument (CCA at 2-5).
Similarly, the Respondents made its statement
of facts in its Respondents’
Closing Argument (RCA at 1-8). Both parties presented the facts that
best supported their arguments.
The Respondents cited facts that itthought were important forthe Board to consider to
gain a full appreciation ofthe background for the alleged violations
and the corrective actions
taken.
Every fact included in the Respondents’
Closing Argument was supported by a cite to the
record of the Hearing.
The trier offact in this matter will have full access to the Hearing record
transcripts and will be in a position to
determine the accuracy ofthe statement offacts in the
Complainant’s Closing Argument and Respondents’
Closing Argument.
The “Facts” section ofthe Complainant’s Reply Briefis, in fact, not intended to be
a
statement of facts but instead is
an attempt to inject statements of
unsupported
opinion and
speculation, not in evidence, into the process at the stage in the legal process that would deny the
Respondents the opportunityto refute the basis for the comments.
This “Facts” section of the
Complainant’s Reply Briefrepresents nothing more than a restatement of the facts presented by
the Complainant in the Complainant’s Closing Argument augmented by irrelevant, baseless
and
false statements that are not consistent with the objective a Reply Brief
—
to
respond to and
enhance the arguments raised in the previously submitted Closing Arguments.
The intent and
potential impact ofthe statements presented by the Complainant in the “Facts” section is to
mislead and prejudice the trier offact and to inflame the passions ofthe trier offact.
Because
this
section does not serve the purpose for which the Reply Brief is
intended, it should be.
3
stricken.
2.
Misleading statements in “Section
A. Respondent Repeatedly Violate Permit
Reguirements”should
be stricken.
The striking ofa number of specific statements in this
section would yield a remainder that would be little more than a restatement ofthe facts
presented by the Complainants in the Complainant’s Closing Argument.
Among the statements
that must be
stricken are:
-
“Because their facts or statements have no basis in the record” (CRB at
1) should be
stricken because it is a false statement unsupported by the record.
-
Statements concerning the Respondents failure to submit DMRs (CRB at 2-4) should be
stricken because these statements do not rebut any statement included in the Respondent’s
Closing Argument.
In the Respondents’
Closing Argument, the Respondents point out that there
were violations for total suspended solids (RCA at 4). The Complainant delineating these
violations is not appropriate
in the Complainant’s Rebuttal Brief.
Even less appropriate ar~
the
comments in this section in which the Complainant depends on speculation and conjecture in an
attempt to
inflame the passions ofthe trier of fact and conclude that there were more violations
than alleged in the Complainants Second Amended Complaint because the Illinois EPA lost
copies ofDMRs submitted by the Respondent Skokie Valley Asphalt and therefore
these DMRs
must have included self-reported violations.
Even less appropriate to the Complainant’s Reply
Brief is the fact that the Complainant ignores and fails to rebut the information in the record and
in the Respondents’
Closing Argument that the IEPA had a history ofmishandling and failing to
log DMRs and most likely had done so in this matter (RCA at
19, Hearing 66,
195,
197), that the
violations were minor and
did not result in any action by the IEPA at the time it became aware of
the minor violations (RCA at
19, Hearing at 67,68), that the Respondent Skokie Valley Asphalt
submitted to the JEPA information that showedthat the DMRs had been submitted and that no
violations had occurred (RCA at
5,
Hearing at 317, 318) or that the standards for TDS listed
in
the Skokie Valley Asphalt NPDES permit were mistakenly established at a level that made strict
compliance impossible (RCA at 20,
Hearing at 78, 414-415).
-
“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” should be stricken.
Not only is
4
this section ofComplainant’s Reply Briefinappropriate because it does not reply to any previous
comments in the closing arguments but it also a false and misleading statement not supported by
the evidence.
At no time does Respondent admit to willfully and knowingly submitting false
data.
Such a conclusion that the action was willing and knowing calls for a determination by the
trier of fact.
The trier offact needs to
base this decision on the record and not on deceitful
statements by the Complainants designed solely to inflame the passions of the trier offact.
-
The final paragraph in the “Facts” section which begins “No one
will ever knowhow
many times the Respondents violated the TSS concentration limits” CRB at 7) should be stricken
for the reasons stated for striking the statements concerning the Respondents failure to submit
DMRs.
They are not based on the evidence.
3.
False statements in
“Section B. Respondent Knowingly Cause Water Pollution to
Last Longer”should be stricken.
The Respondents
strongly disagree with the Complainant’s
comment in Complainant’s Reply Brief that the Respondents “ignore the evidence in the record”
in arguing that only the Respondents’
expert determine the source of the contamination and that
the determination ofthe source was only possible well after the releases had occurred.
The
Respondent respectfully requests the Board to review the statements in both the Respondents’
Closing Argument and the Complainant’s Reply Brief, as well as the record, to determine that the
Respondents accurately based its arguments on the facts in record.
Ifthe arguments are based on
the record, this section ofthe Complainant’s Reply Brief should be stricken because it is not
limited to
facts in evidence.
The Complainant includes a lengthy litany ofalleged past environmental offenses (RB at
10-12) under the guise ofsupporting its position that IEPA and USEPA, as opposed to
the•
Respondents and Respondents’
consultant, determined the source ofthe release and took the
actions necessary to stop the release, perform the necessary remediation and take actions to
ensure that no future releases would occur.
This reiteration ofalleged past problems at the site
does not refute the fact that the Respondents were solely responsible for determining the source
of the discharge and that IEPA and USEPA failed to do so (RCA at 7).
As such, this sectipn is
inappropriately included in the Complainant’s Reply Brief because it is not a reply as required by
the Hearing Officer and therefore should be stricken.
Further, comments by the Complainants
5
concerning alleged past environmental problems at the site do nothing to
rebut statements in~the
Respondents’ Closing Argument.
The only value ofthe inclusion ofthese statements appears to
be an attempt to prejudice the trier offact and are designed solely to inflame the passions of~he
trier offact.
As such, they should be stricken.
This section ofthe Complainant’s Reply briefalso includes a number ofpurportedly
factual statements that have no basis in the evidence.
Examples of such statements are
once, with all ofthe environmental issues, did respondents investigate their own site to dete~mine
the extent ofthe contamination for possible remediation” (CRB at
12), statements that
Respondents knew about the underground storage tanks and mislead government officials a~out
their presence and conditions• (CRB at 13,14), that the Respondents
“willfully, knowingly ai~id
intentionally lie about a potential pollution source on their site” (CRB at
14), “respondent~
could have shortened have shertened the time oil was released into the Avon-Fremont Draii~age
Ditch by more than thirty day, from April to March
22nd,
had they not lied about USTs on
si1te
(CRB
at 14).
The Respondents urges the Board
to strike these statement because oftheir l4ck of
factual basis.
4.
“The Facts Are In
The Record”
Section of the Complainant’s
Reply Brief should be
stricken in its entirety.
Nothing in this
section is consistent with the intended scope ofth~
reply
briefdetermined by the Hearing Officer.
This combination ofconfusing, baseless, non-
responsive and irrelevant statements do nothing to address the issues in the Complainant’s
Closing Argument and the Respondents’
Closing Argument and therefore should be
strick4n.
5.
Irrelevant
and Non-Responsive Statements in “Section II. What
is Respondents’
Defense” of the Complainant’s Rebuttal Brief should be stricken.
All references to th~
asset
purchase agreement for Skokie Valley Asphalt (CRB at
15-19) should be
stricken
from th~
Complainant’s Reply Brief because they are not relevant to the affirmative defense of lacbps
raised by Edwin Frederick and Richard Frederick.
The sale ofthe assets of Skokie Valley
Asphalt was in 1998.
The counsel to the Respondents in that transaction was not involve4 in the
matterbefore the Board but had knowledge that Skokie Valley Asphalt was named as the
Respondent in the complaint.
He also knew that his clients Richard Frederick and Edwin
Frederick were not named as Respondents in the complaint, even though the Illinois Attorney
6
General’s Office was well aware ofthe existence and roles of Richard Frederick and Edwin
Frederick in this matter and had ample opportunity to name the Fredericks in the original
/
complaint, perform discovery or amend the complaint to add the Fredericks as Respondents./
Based on the fact that the Fredericks were not parties to the Complaint, the attorney that
represented Skokie Valley Asphalt and the Fredericks in the asset sale had no reason to be1i~ve
that he needed to protect records that would be of value to the Fredericks in their defense in ~his
action before the Board.
No aspect ofthe sale ofSkokie Valley Asphalt alters the fact that the Complainant
v~’as
not diligent in pursuing the claim or that the records involved in the asset sales
as well as other
records and information once possessed by the Respondents was no longer available
-
resul~ing
in
prejudice to both Edwin Frederick and Richard Frederick. Unless details ofthe asset sale effect
one ofthese two
elements ofan argument for laches, they do not have any relevance to
the ~aches
debate and therefore have no place in the Complainant’s Reply Brief.
This information sho~ild
be
stricken.
More specifically, any reference to the total
payment made by the purchaser ofthe assets
should be
stricken both because they are not relevant and also because they are misleading ~nd
potentially prejudicial.
It is
clear from the record that the Respondents Richard Frederick a/nd
Edwin Frederick did not sell their assets forthe $8.2 million that the Complainant intentioi7~ally
and repeatedly misrepresents in the Complainant’s Reply Brief(CRB
at 16,17,18, 22, 29, ~1, 38).
The record clearly indicates that the purchase price was in payment ofall ofthe debts, accc~unts
payables, releases of liens, bank fees, taxes, legal fees and closing costs involved in Skoki~
Valley Asphalt.
The actual moneythat each ofthe Respondents Richard and Edwin Frederick
realized from the sale oftheasset oftheir lifetime family business was approximately $1 2.~,O00
each (Hearing at 475).
This number is close to the approximate $150,000 that the Respon~ients
Edwin and Richard Frederick had spent up to the time ofthe hearing to get closure on all c~f
the
potential sources of contaminants.
The effort and expense of closure continues through th~s
date
(Hearing at 468).
Ifthe record clearly indicates that the Respondents economic benefit from the sa1e~of
Skokie Valley’s assets was not in any way related to the $8.2 million repeatedly sited by t~ie
7
Complainants, this number has no place in the Complainant’s Reply Brief
It appears that th~
only reason this number appears in the Complainant’s Reply Brief is that the Complainant w~s
disrespectfully attempting to prey on the assumed lack ofknowledge ofthe trier offact with
/
respect to this type ofcomplex asset sale and was attempting to
appeal to the assumed preju~ice
against a party with the ability to pay a substantial penalty.
Complainant’s attempt to benefit by
submitting false and misleading information and inflame the passions ofthe trier offacts, ca~i
be
eliminated by striking these references from the Complainant’s Reply Brief
/
6.
The
Section “1.
The Frederick Brothers were Named Over a Year Before the
Hearing” should be stricken in its entirety.
The
amount oftime before a hearing that the
Respondents are charged has no
relevance to the elements ofdue diligence and prejudice th~tt
are
material to the affirmative defense of laches.
These statement only serve to reinforce how l~te
in
the process the Respondents Edwin Frederick and
Richard Frederick were named and reinf~rces
the point that the Complainants were not diligent in pursuing the claim against these
Respondents.
This section should be stricken.
7.
The
Section
“2.
The Frederick Brothers Were Not Prejudiced. “should be stricken
in its entirety.
The Complainant’s
statement that “the
Respondents had the ability to, bitt
chose not to produce records” is unsupported by the evidence before the Board and is in fa~t
false.
Further, Complainants assumption that the Respondents could defend themselves
consistent with the defense ofthe remaining Respondent
—
Skokie Valley Asphalt
—
is
wrol/lg and
denies the Respondent their right to defend themselves
as they choose.
The assumptions a~d
false statements do
nothing to address the prejudice caused to the Respondents and
should/be
stricken from the Complainant’s Reply Brief
8.
False statements
in
“Section III. Edwin and Richard Frederick Are Personall~
Liable For The Environmental Violations”should be stricken.
The paragraph
that beg~ns
“Edwin and Frederick are personally liable for the environmental violations of their comp~tny...”
(CRB at
25)
should be
stricken because they are not supported by any information in the r~cord.
There is no showing that the Fredericks could have complied with the NPDES permit or t~iat
they
had a duty to comply with a permit that was issued solely to Skokie Valley Asphalt and not to
them individually.
There
is also no
information offered to show that the Fredericks had t
e
8
ability to prevent the
199411995
incident by remediating sources that they had not identified ~nd
did not know existed.
Because these statements are not supported by the recorded and are based
solely on speculation by the Complainants, they are not proper to the Complainant’s Reply Brief
and should be stricken.
9.
The restatements
of f2cts in the “Section IV. What Penalty
is
Appropriate?” shquld
be stricken from
the record.
The Complainant repeatedly attempts to restate the facts in tl~e
case with the interjection
ofspeculation,
opinion, misstatements and fabrication
(CRB at 27~
28,
29,
32, 33,
35,
36, 37, 38).
As previously stated, the Complainant was given ample opportu~iity
to state the facts in this case in Complainant’s Closing Argument and made such statements in its
Complainant’s Closing Argument (CCA at
2-5).
The Complainant presented the facts that l?est
supported its arguments.
The trier offact in this matter will have full access to the Hearing
record transcripts and will be in a positionto determine the accuracy ofthe statement offacts in
the Complainant’s Closing Argument and Respondents’
Closing Argument.
Again, the restatement offacts in this section ofthe Complainant’s Reply Brief is,
i~i
fact,
not intended to be a statement offacts but instead is an attempt to inject statements of
unsupported opinion and speculation into the process at the stage in the
legal process that ~ould
deny the Respondents the opportunity to refute the basis for the comments.
The intent and
potential impact ofthe restated facts presented by the Complainant in this section is to mis~ead
and prejudice the trier of fact.
Because this section does not serve the purpose for which tIe
Reply Brief is intended, it should be stricken.
10.
Misleading statemer~ts
in “Section
IV.
What Penalty is Appropriate?” “should
be
stricken.
A
number ofspecific statements in this must be stricken:
-
“Respondents never
complied
with theirNPDES
permit” (CRB at 27) should be
stricken because it is
a false statement unsupported
by the record.
It also must be stricken
because it implies
—
as the
Complainant
has attempted to do throughout this Complainant’s
Reply Brief— that all ofthe Respondents had NPDES permit.
In fact, only the Respondent
Skokie Valley Asphalt possessed an NPDES permit and only the Respondent Skokie Val1~y
Asphalt can be held liable for violation ofthe permit.
-
“Respondents never had a representative discharge sampling point through at leapt May,
9
1991” (CRB at 27) should be stricken because it is a false statement unsupported by the record.
Also, the maintenance ofa representative discharge point is not an element ofany ofthe causes
ofactions brought by the Complainant in its Second Amended Complaint.
Therefore, it is nQt
relevant to this case and has only potential prejudicial
value.
It should be stricken both because it
is false and because it is irrelevant.
-
The paragraph that begins “The only thing that could be more serious than intentioqally
filing false reports...” is
a series offalse statements and speculation based on the false staten~ents.
These
statements are not limited to facts in evidence.
These statements must be
stricken.
11.
Statements
recommending specific penalty amounts in “Section IV. What
Penalty is
Appropriate?” ofthe Complainant’s Reply Brief should be stricken.
In the Respondent~’
Closing Argumentthe Respondents appropriately reviewedthe standard for damages under
Section
33 ofthe Act, 415 ILCS
5/33 (RCA at 27- 44) and the mitigating factors to
be considered
by the trierof fact under paragraph (h) ofSection 42 ofthe Act (RCA at
35-44).
The analysis
was limited to
the facts placed into evidence at the Hearing.
Because no information was entered
into evidence concerning the amount ofpenalties that would be appropriate, the Respondent was
not allowed to make recommendations as to the amount ofany penalties that
should be imp~sed
and did not do so.
Further, because the Complainant’s did not make any statements
recommending any penalty amounts either at Hearing or in the Complainant’s Closing Argument,
the Respondents had no recommendations to which to reply.
The Respondents’
Closing
Argument was limited to a showing that if the Board determined that violations actually
i
occurred, no penalties were warranted based on the gravity ofthe infractions and the mitig~ting
factors involved.
Because the Complainant’s Reply Brief is to
be limited to a reply to the Respondents’
Closing Argument and because the Complainant’s Reply briefmust be
limited to facts in
evidence, the statements that recommend specific penalty amounts and the manner in whiqh
these penalties should be determined for each Count (CRB at 32, 33, 34) should be stricken.
Further, these fabrications ofpenalty amounts are not only without basis in the Hearing record
but are also based on facts that are false and sensantionalized in an attempt to inflame the
passions ofthe trierof fact.
For this reason also, the statements should be stricken.
10
12.
Statements purporting to apply Section 42(h) factors in “SECTION IV. What
Penalty is
Appropriate?” of the Complainant’s Reply Briefshould be stricken.
In
its
alleged application of
the Section
42(h) factors to the determination
of
civil penalties, the
Complainant both claims are not relevant (CRB at 35) and then attempts to apply the factors
based on misstated facts and materials that are not in the record.
Again, Complainant
had ample
opportunity to make its
statements offacts in its Complainant’s Closing Argument.
By
presenting, inflammatory, misleading, misstated and fabricated information at this stage oft1~ie
proceedings
—
where the Respondents are denied the opportunity to
challenge the statements/and
correct the information for the Board
—
the Complainant
is surpassing the limitations of the
Complainant’s Reply Brief imposed by the Hearing
Officer and the relevant case law.
These
comments in the Complainant’s Reply Briefshould be stricken.
/
13.
The “V. The People of the State of Illinois Are Entitled to Their Cost and Attorney
Fees from Respondents” Section of the Complainant’s Reply Briefshould
be stricken in
its
entirety.
In
the
Respondents’
Closing Argument the Respondents
made no
comment
concerning
Complainant’s
entitlement to costs
and attorney’s fees.
There was no evidence
entered at the Hearing that supported either thejustification ofattorneys’ fees and costs or the
amount and appropriateness ofthe
costs and attorneys’ fees that could be justified.
Further~
because the Complainant’s did not make any statements recommending any penalty amounts
either at Hearing or in the Complainant’s Closing Argument, the Respondents had no
recommendations to which to reply.
Because the Complainant’s Reply Brief is to be limited to a reply to the Responderts’
Closing Argument and because the Complainant’s Reply briefmust be limited to facts in
evidence, the statements that address the Complainant’s right to reimbursement for costs a~id
attorneys’ fees and the manner in which these penalties should be determined (CRB at 38-41)
should be stricken.
Further, these fabrications ofcosts and fees are not only without basis in the Hearing reco~d
but
are also based on facts that are unsupported by sufficient documentation and have most lilcely
been fabricated solely forthe purposes ofthis claim. The Complainants have failed to sub~it
actual time sheets, pay stubs, pay rates, invoices or receipts to support
any oftheir request for
11
fees and costs.
The submission ofaffidavits at this juncture in the proceedings in totally
improper and can not be accepted as a substitute for evidence on the record.
The pay rates for the
attorneys is obviously fabricated.
The payment of attorneys’ fees based on this rate would result
in an unjustified windfall for the Illinois Attorney General’s Office.
Further, the request for
Attorneys’ Fees and Cost does nothing to
account for all ofthe wasted attorneys’ hours emplcyed
by the Illinois Attorney General’s Office
is filing frivolous motions, amended complaints,
answering motions to object to the Complainant’s attorney mistakes,
delays, useless diseove~y.It
is hard to justify a claim for attorneys; fees and cost by the Illinois Attorney General’s office/that
is ten times the amount that three Respondents combined paid to defend themselves against
frivolous claims. It is also
hard to justify an hourly fee forpublic service that is greater than ~he
weighted-average fee charged by the Respondents’ attorney even though Respondents’
attorneys
fees include costs.
For this reason also,
the statements should be stricken.
14.
Statements
in Complainant’s Reply Briefattacking the character of Respondents’
counsel should be stricken.
While
the subject ofthe misconduct ofthe IllinoisAttorney
I
General’s Office, the Illinois Environmental Protection Agency and the Board with respect ~o
allowing Mr. Joel Sternstein to participate in this case is a subject that the Respondents fee~
will
be more appropriately adthes~ed
on appeal,
the Respondents argue that references to this ni~atter
in Complainant’s Reply Brief(CRB at 39) are inappropriate and should be stricken.
Againl, there
is nothing in evidence on which the Complainant can base the argument presented in the
Complainant’s Reply Brief
Further, the Respondents did not raise this issue in the Respoii~dents’
Closing Argument.
Therefore, the Complainant has no
basis for raising this argument.
It should
be stricken.
The Complainant’s statements attacking Respondents’
counsel is even more inapp~opriate
to this proceeding.
The statements are not only not based on information in evidence but ~re
totally baseless in reality.
The Board has the information in theirrecords and their collective
personal knowledge to know that these statements are lies fabricated to inflame the passiops of
the trier offact.
Any insinuation that Respondents’
counsel in any way attempted to violate the
Board’s rules ofconduct or in any way attempted to conduct the type ofinfluence peddling that is
the trademark ofthe Illinois Attorney General’s Office should be stricken.
12
13
Wherefore, the Respondent respectfully requests that the Board strike the sections ofthe
Complainant’s Reply Briefas argued above.
Dav~~fl
~
David S.
O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, Illinois 60630-1249
(773) 792-1333
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Respondents’
Motion to
Strjke
and Objections to Complainant’s Closing Argument and Reply Brief by hand delivery on May
17, 2004,
upon the following party:
Mitchell Cohen
Environmental Bureau
Assistant Attorney General
Illinois Attorney General’s Office
188 W. Randolph, 20th Floor
Chicago, IL 60601
NOTARY SEAL
SUBSCRiBED AND SWORN TO ME this
17’
day of ______________,20
O,~
DENNt$
R ONEILL
NOTARY PUSUC
..
STATEOF
IUJNOIS
MY
CCMMISS~ON
EXPIRES:091’/O(°’
RECE WED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAY
172004
STATE OF ILLINOIS
PEOPLE OF THE
STATE
OF
ILLINOIS,
)
Pollution Control
Board
Complainant,
)
)
PCB 96-98
)
v.
)
Enforcement
)
)
SKOKIE VALLEY ASPHALT,
CO., rNC.,
)
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.,
)
Respondent
)
NOTICE OF FILiNG
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe Pol1uti~n
Control Board the Respondents’ Motion to
Strike and
Objections to Complainant’s Closing
Argument and
Reply Brief, a copy ofwhich is hereby served upon you.
May 17, 2004
David S. O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, IL 60630-1249
(773) 792-1333
