1. RECEIVEDCLERKS OFFICE
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~LFRKSOFFIG
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
-
PEOPLE OF THE STATE OF ILLINOIS,
)
MAY 26 2OC~
Complainant,v.
))
No. PCB 96-98
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SKOKIE VALLEY ASPHALT, CO., INC.,
an Illinois corporation,
EDWIN L. FREDERICK, JR.,
individually and as owner and
President of Skokie Valley Asphalt
Co., Inc., and
)
RICHARD J. FREDERICK,
individually and as owner and
Vice President of
Skokie Valley Asphalt Co., Inc.,
Respondents.
NOTICE OF FILING
TO: Mr. David S. O’Neill
Ms. Carol Sudman
5487 N. Milwaukee Ave. Hearing Officer
Chicago, IL 60630
Illinois Pollution Control Board
600 S. 2~Street, Suite 402
Springfield, Illinois 62704
PLEASE TAKE NOTICE that the Complainant, PEOPLE OF THE STATE
OF ILLINOIS, filed with the Illinois Pollution Control Board,
COMPLAINAN’I”S RESPONSE TO RESPONDENTS’ POST TRIAL MOTION TO
STRIKE AND OBJECTIONS TO COMPLAINANT’S CLOSING ARGUMENT AND REPLY
BRIEF,
a true and correct copy of which is attached hereto and is
hereby served upon you.
PEOPLE OF THE STATE OF ILLINOIS
Ex rel.
LISA MADIGAN, Attorney
General of t e St~te
Ill nois
BY:
__________
MITCHELL L. COHEN
Assistant Attorney General
Environmental Bureau
188 West Randolph, ~ Floor
Dated: May 26, 2004
Chicago, IL 60601
(312) 814-5282
THIS FILING IS SUBNITTED ON RECYCLED PAPER
RECEIVED
CLERKS OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAY 26 200k
PEOPLE OF
THE STATE OF ILLINOIS,
)
PoDutionContrc~Boa
Complainant,
v.
)
No. PCB 96-98
SKOKIE VALLEY ASPHALT, CO., INC.,
)
Enforcement
an Illinois corporation,
EDWIN L. FREDERICK, JR.,
)
individually and as owner and
President of Skokie Valley Asphalt
Co.,
Inc.,
and
RICHARD J. FREDERICK,
individually
and as owner and
Vice President of
Skokie Valley Asphalt Co., Inc.,
Respondents.
COMPLAINANT’S RESPONSE TO
RESPONDENTS’ POST TRIAL MOTION TO STRIKE AND OBJECTIONS TO
COMPLAINANT’S CLOSING ARGUMENT AND REPLY BRIEF
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA
MADIGAN,
Attorney General of the State of Illinois,
pursuant to
Sections 101.500
and 101.502 of the Illinois Pollution Control
Board Regulations
(“Board Regulations”),
35 IlL Adm. Code
101.500 and 101.502, hereby responds to Respondents’ Post Trial
Motion to Strike and Objections to Complainant’s Closing
Argument
and Reply Brief (“RMS”), and
states
as follows:
1. In response to RMS, the People adopt and incorporate
“Complainant’s Motion to Strike Respondents’ Post Trial Motion to
Strike and Objections to Complainant’s Closing Argument and Reply
Brief” attached as Exhibit A and filed this same date.
1
2. For the reasons stated therein, the People of the State
of Illinois
believe RMS should not be part of this enforcement
case record and should be stricken without the Board’s
consideration.
The People do not want to go to any additional
time and expense further responding to the
specifics of RMS
unless it is necessary based on the. ruling on Complainant’s
Motion to Strike Respondents’ Post Trial Motion to Strike and
Objections to Complainant’s Closing Argument and Reply Brief
3. The People are filing this Response in accordance with
I
Board Procedural Rule 101.500 (d), 35 Ill. Adm. Code 101.500 (d)
CONCLUSION
WHEREFORE, Complainant,
People of the State of Illinois,
requests this Board stay the proceedings on RMS pending Hearing
Officer Sudman’s ruling on Complainant’s Motion to Strike
Respondents’ Post Trial Motion to Strike and Objections to
Complainant’s Closing Argument and Reply Brief;
Further, should Hearing Officer Sudman deny Complainant’s
Motion to Strike Respondents’ Post Trial Motion to Strike and
Objections to Complainant’s Closing Argument and Reply Brief,
Complainant respectfully requests 14 days from the date of the
Order denying Complainant’s Motion to further respond to the
specifics contained in RMS and further amend
the fee petitions
within the People of the State of Illinois’
Closing Rebuttal
2
Argument and Reply Brief.
PEOPLE OF THE STATE OF ILLINOIS
Ex rel.
LISA
MADIGAN,
Attorney
General of the State of Illinois
MATTHEW J.
DUNN,
Chief
Environmental Enforcement/Asbestos
Litigation Division
ROSEMARIE CAZEAU, Chief
Environmental Bureau
BY:
_________
MITCHELL L. COHEN
BERNARD J. MURPHY, JR.
Assistant Attorney General
Environmental Bureau
188 West Randolph, ~ Floor
Chicago, IL 60601
(312) 814-5282
(312) 814-3908
3
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
)
No. PCB 96-98
SKOKIE VALLEY ASPHALT, CO., INC.,
)
Enforcement
an Illinois corporation,
EDWIN L. FREDERICK, JR.,
individually and as owner and.
President of Skokie Valley Asphalt
Co., Inc., and
RICHARD J. FREDERICK,
individually and as owner and
Vice President of
Skokie Valley Asphalt Co., Inc.,
Respondents.
COMPLAINANT’S MOTION TO STRIKE
RESPONDENTS’ POST TRIAL MOTION TO STRIKE AND OBJECTIONS TO
COMPLAINANT’S CLOSING ARGUMENT AND REPLY BRIEF
Complainant, PEOPLE OF THE STATE OF ILLINOIS, ex
rel.
LISA
MADIGAN, ‘Attorney General of the State of Illinois, pursuant to
Sections 101.500 and 101.502 of the Illinois Pollution Control
Board Regulations (“Board Regulations”), 35 Ill. Adm. Code
101.500 and 101.502, hereby moves Hearing Officer Sudman to
Strike Respondents’ Post~Trial Motion to Strike and Objections to
Complainant’s’ Closing Argument and’ Reply Brief (“RMS”). In support
of this Motion to Stilke RMS, Complainant states as follows:
1. This Motion to Strike RMS is properly before Hearing
Officer Sudman since it is
“ . . .
not dispositive of the
proceedings.” 35 Ill. Adm. Code 101.502.
2. This enforcement case was already tried before Hearing
1
Officer Sudman October 30 and 31, 2003. See Hearing Transcripts.
3. On October 31, 2003, Hearing Officer Sudrr~an issued the
last Order in this enforcement case allowing for Complainant’s
Closing Argument, Respondents’ Closing Argument, Complainant’s
Rebuttal Argument, and nothing else. Hrg. Tr. at 522.
Complainant, The People of the State of Illinois filed their
Closing Rebuttal Argument and Reply Brief April 15, 2004, in
accordance with Hearing Officer Sudman’s Order.
4. The People of the State of Illinois’ Closing Rebuttal
Argument and Reply Brief is not a pleading. 735 ILCS 5/2-601, 2-
602 and 2-603 (2002). A pleading is “tihe document containing
the factual allegations that each party is required to
communicate, to the opponent before trial
. . . .“
Black’s Law
Dictionary.
5. Respondents cannot rely on Section 101.506 of the Board’s
Procedural Rules, 35 Ill. Adm. Code 101.506, that allows
Respondents to strike, dismiss, or challenge a “pleading”, before
hearing to strike a Closing Argument after hearing.
6. Respondents file RMS May 17, 2004, over six months after
trial.
7. Respondents did not seek leave to file anything after
their Closing Argument, the hearing and arguments in this
enforcement case are finished, and there is no authority for
Respondents to file anything else at this time.
2
8. Therefore, RMS should be stricken, and this enforcement
case should proceed to Final Board Order.
9. If somehow, the People of the State of Illinois’s Closing
Rebuttal Argument and Reply Brief is’ considered a pleading such
that Respondents can file a Motion to Strike pursuant to Section
101.506 of the Board’s Procedural Rules, 35 Ill. Adm. Code
101.506, six (6) months after hearing, RMS still should be
stricken.
10. Complainant, the People of the State of Illinois, filed
this enforcement action against Respondents.
11. Complainant has the burden in an enforcement action to
show that Respondents violated the Illinois Environmental
Protection Act and related rules and regulations. 415 ILCS
5/31 (e) (2004)
12. “In an enforcement action, the complainant must prove
that the respondent violated the Act or the rules, regulations,
permits or terms and conditions by a preponderance of the
evidence. People v. Fosnock, PCB 41-1, slip op. at 19 (Sept. 15,
1994)
.“
Village of South Elgin v. Waste Management of Illinois,
Inc., PCB 03-106, p. 2 (February 20, 2003).
13. Since Complainant has the burden of proof in this
enforcement action, the People of the State of Illinois get the
last word.
14. Respondents do not get another chance to argue their
3
case, which is exactly what RMS does, after Complainant filed
their Closing Rebuttal Argument and Reply Brief.
15. RMS not only should be stricken, it should not even be
considered, or read by Board.
CONCLUSION
RMS should be stricken. There is no authority to file such a
Motion six months after the close of evidence in this enforcement
action. Further, RMS should not even be considered since
Complainant has the burden of proof and already had filed their
Closing Rebuttal Argument and Reply Brief.
WHEREFORE, Complainant, People of the State of Illinois,
asks Hearing Officer Sudman for the following relief:
1. Strike RMS such that it is not considered by the Board
in this enforcement case;
2. Allow AAGs Cohen and Murphy to amend their fee petitions’
~within the People of the State of Illinois’ Closing Rebuttal
Argument and Reply Brief, to reflect the following:
AAG Cohen
May, 2004
6 hours Reviewing Resp.’s Motion
to Strike Closing,
discussions w/ co-counsel
Research & drafting
Motion to Strike RMS
AAG Murphy
May, 2004
3 Hours Reviewing Resp.’s Motion
to Strike Closing,
discussions w/ co-counsel
Reviewing Motion to
Strike RMS
and
4
3. Grant such additional relief as the Board deems
appropriate and just.
PEOPLE OF THE STATE OF ILLINOIS
Ex rel.
LISA MADIGAN, Attorney
General of the State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
ROSEMARIE CAZEAU, Chief
Environmental Bureau
BY:____
MITCHELL L.• COHEN
BERNARD J. MURPHY, JR.
Assistant Attorney General
Environmental Bureau
188 West Randolph,
20th
Floor
Chicago, IL 60601
(312) 814-5282
(312) 814-3908
5
CERTIFICATE OF SERVICE
• I, MITCHELL L.. COHEN, an Assistant Attorney General, do
certify that I caused to be mailed this
26th
day of May 2004, the
foregoing COMPLAINANT’S
RESPONSE TO RESPONDENTS’ POST TRIAL
MOTION TO STRIKE AND OBJECTIONS TO COMPLAINANT’S CLOSING ARGUMENT
AND REPLY BRIEF
and NOTICE by first-class mail in a postage
prepaid envelope and depositing same with the United States
Postal Service located at 100 West Randolph Street, Chicago,
Illinois, 60601.
I:\MLC\SkakieValley\RcspToMoToStrikeClosing.wpd

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