BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
~ 12 200k
STATE OF ILL
Complainant,v.
)
No. PCB 96-98
~oflUt~OflControl soar
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,Hearing Officer
5487 N. Milwaukee Ave. Illinois Pollution Control Board
Chicago, IL 60630
600 5. 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,
COMPLAINANT’S RESPONSE TO RESPONDENTS’ MOTION TO STAY AND/OR
EXTEND TIME TO RESPOND TO COMPLAINANT’S PETITION FOR ATTORNEYS’
FEES AND COSTS,
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 the Sta~e of,~llinois~
BY:
MITCHELL L. COH N
Assistant Attorney General
Environmental Bureau
188 West Randolph, 2O~ Floor
Chicago, IL 60601
(312) 814-5282
Dated: October 12, 2004
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECE~V~D
CLERK’S
OFFICE.
PEOPLE OF THE STATE OF ILLINOIS, )
OCT 12 2OO~
)
STATEOFILLINOIS
Complainant,
)
Pollution
Control
Board
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 ValleyAsphalt Co., Inc.,
Respondents.
COMPLAINANT’S RESPONSE TO
RESPONDENTS’ MOTION TO STAY AND/OR EXTEND TIME TO RESPOND TO
COMPLAINANT’S PETITION FOR ATTORNEYS’ FEES AND COSTS
Complainant, PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA
MAD.IGAN, Attorney General of the State of Illinois, acknowledges
“Respondents’ Initial Response To And Motion To Stay And/Or
Extend Time To Respond To Complainant’s Petition For Attorney
Fees and Costs” as that filing, the Response, is consistent with
the Board’s September 2, 2004 Opinion and Order1 (“Order”) and
would not have required any additional work by Complainant;
however, pursuant to Section 101.500 of the Illinois Pollution
1
Peo.ple v. Skokie Valley Asphalt, Co., Inc., Edwin L.
Frederick, Jr., and Richard J. Frederick: PCB 96
-
98 (September
2, 2004)
1
Control Board Regulations (“Board Regulations”), 35 Ill. Adm.
Code 101.500, Complainant hereby objects to and responds to that
portion of the filing called a “Motion” which seeks either a
stay, or extension of time. In response to Respondents’ Motion to
Stay and/or Extend Time to Respond to Complainant’s Petition for
Attorney Fees and Costs (“Motion”), Complainant states as
follows:
I. StThIMARY
REVIEW OF VIOLATIONS AND LITIGATION
1. By 1978 Edwin and Richard Frederick were the corporate
officers and only shareholders of Skokie Valley Asphalt, Inc.
(“SVA”)
2
2. By 1986, the Illinois EPA issued a site specific NPDES
permit3.allowingBased
onSVANPDEStopermitdischargeviolationsstormwaterrelatedinto toGrayslake.DMR5; the3
Illinois Attorney General’s Office (“AGO”) became involved with
SVA by the spring of 1993.~
4. From December 1994 through April 1995 there was an oily
discharge in the Avon Fremont Drainage Ditch.5 The Avon Fremont
Drainage Ditch is east of the SVA site and flows north through
2
Id. at 3.
31d. at 2
-
3.
~ Resp. Exh. 5: Letter addressed to Asst. A.G. Wallace.
~ People v. Skokie Valley Asphalt, Co., Inc., Edwin L.
Frederick, Jr., and Richard J. Frederick: PCB 96
-
98 (September
2, 2004)
at 3.
2
the town of Grayslake into another lake called Third Lake.6 When
Respondents plugged a drain tile containing water with an oily
she~enthat flowed from their site to the Avon Drainage Ditch, the
oil discharge5.
In Novemberin
the
1995ditchthesubsidedAGO filedandthestopped.Complaint7 in this case
alleging some of SVA’s NPDES permit violations, most of which
re1~ted6. t’oIn
DecemberDMR5.8 1997 the AGO filed an Amended Complaint
adding the water pollution count for the oil discharged into the
Avon Fremont Drainage Ditch from December 1994 through April 1995
•and other7.
InNPDES1998
permitEdwin
andviolations.Richard
9Frederick
sold SVA’s assets for
$8.2 million and dissolved the corporation.’°
8. The AGO filed a Second Amended Complaint adding Edwin and
Richard Frederick as Respondents in July of 2002.
9. As a result, litigation intensified including three
6Id at 2.
‘~
Id. at 3.
•
8
See PCB 96
-
98 Docket.
~ See PCB 96
-
98 Docket.
10
Compl. Exh. 35; People v. Skokie Valley Asphalt, Co.,
Inc., Edwin L. Frederick, Jr., and Richard J. Frederick: PCB 96
-
98 (September 2, 2004) at 3.
3
separate motions’1 filed by Respondents to dismiss either the
Second Amended Complaint, or the Frederick Brothers, two motions
to compel’2 filed against Respondents, and days before the
hearing Respondents filed four motions to exclude testimony and
eight
10.motionsHearingin Officerlimine.’3Sudman heard the case over two days in
October, 2003, involving six witness and 50 exhibits creating
over 50011. pagesOn
Septemberof
transcript.’2,
2004,4 the Board found that respondents
violated the Act and Water Pollution Regulations by not timely
applying for renewal of their NPDES permit, by failing to comply
with their NPDES permit reporting requirements, by causing
threatening, or allowing water pollution, and exceeding their
permit12.effluentThe
Boardlimits.also15found
“ . . .
that respondents committed
willful, knowing, or repeated violations in this case. For
example, respondents repeatedly failed to file DMRs on a monthly
“See PCB 96
-
98 Docket, 9-25-02, 4-23-03, and 9-9-03
entries.
‘2See PCB 96
-
98 Docket, 7-9-03 and 7-28-03 entries.
13
See PCB 96
-
98 Docket, l0-27-0~entry.
‘4See PCB 96
-
98 Docket, 11-3-03 and both 11-12-03 entries;
People v. Skokie Valley Asphalt, Co., Inc., Edwin L. Frederick,
Jr., and Richard J. Frederick: PCB 96
-
98 (September 2, 2004) at
2.
15
Id. at 23.
4
basis
13.as Basedrequiredon theby
permitBoard’sandOrder,regulation.”Complainant6
filed a Petition
for Attorney Fees and Costs September 17, 2004 (“Petition”) ~17
14. The record indicates that the AGO has been working on
and involved with Respondents’ environmental violations and this
case since the spring of
1993.18
The assistants at the AGO that
have worked, or continue to work on Respondents file or case
include Elizabeth Wallace,’9 Ellen O’Laughlin,2° Bradley P.
Halloran,2’ Kelly A. Cartwright,22 Mitchell L. Cohen,23 Joel J.
Sternstein,15.
The24 Peopleand
Bernardof
theJ. StateMurphy.of25Illinois’ Attorney Fees and
Costs Petition only relates to time Assistant Attorney General’s
(“AAG5”) Cohen, Sternstein, and Murphy worked on this case
16 Id. at 23.
17 Id~at 23; see also “The People of the State of Illinois’
Attorney Fees and Costs Petition.”
18
Resp. Exh. 5: Letter addressed to Asst. A.G. Wallace and
PCB 96
-
98 Docket.
‘~
Resp. Exh. 5: Letter addressed to Asst. A~G. Wallace.
20
PCB 96
-
98 Docket, 3-1-99 entry.
21
PCB 96
-
98 Docket, 3-1-99 and 5-12-00 entries.
22
PCB 96
-
98 Docket, 5-12-00 and 6-14-02 entries.
• 23
PCB 96
-
98 DOcket, 6-14-02 entry.
24
PCB 96
-
98 Docket, 7-30-02 and 10-23-03 entries; and
Board Order 10-16-03.
25
PCB 96
-
98 Docket, 10-23-03 entry.
5
beginning in May of 2002. It does not include any other work
performed in relation to Respondents’ environmental violations,
or this case, by other AAGs from 1993 through May 2002.
II. RESPONDENTS’ OBJECTIONS TO COMPLAINANTS’ PETITION
Respondents make a multitude of objections in their most
recent Motion attempting to justify a stay or extension of time.
Complainant categorizes those objections as follows: whether the
Board’s September 2~Order is final and appealable, whether
Complainants’ Petition warrants additional discovery, whether
correcting a mistake constitutes perjury, whether Complainant is
entitled to attorney fees for work performed by AAG Sternstein,
and- whether the rate of $150.00 per hour is reasonable.
A.
Respondents already petitioned Appellate Court to Review Order
Though Respondents try to argue they need to stay the
Petition to try and figure out whether the Board’s Order is
appealable, the argument is moot. Respondents petitioned the
Appellate Court for review of the Board’s Order the same day they
filed their Response and Motion to Stay and/or Extend Time:
September 28,
2004.26
B.
No additional discovery is necessary
Respondents cite a number of cases trying to convince the
Board that a new hearing is appropriate on the issue of
-
26
A -copy of Respondents’ Petition for Review to the Second
District Appellate Court, Certificate of Service, and Notice of
Filing are attached as Exhibit A. See also, PCB Docket 96
-
98.
6
Complainant’s attorney fees and costs, but only after discovery.
Not so. None of those cases are Illinois Pollution Control Board
•cases, and none of those cases involve the Illinois Environmental
Protection Act (“Act”) that specifically authorizes AGO costs and
fees where Respondents willfully, knowingly,- or repeatedly
violate the Act.
-
For example, Respondents cite Murakas v. Murakas27 to assert
they should be allowed to cross-examine Complainant’s attorneys.
The Murakas case is a breach of contract case where the trial
court ruled on the meaning of a contract related to attorney fees
and was affirmed by the Appellate Court.28 Certainly the parties
to a contract are allowed to be cross-examined in a breach of
-contract trial even if one of the parties is an attorney. Nowhere
in the Murakas case does the law state, or imply, that
Respondents are allowed to cross-examine Complainant’s attorneys
in this case.
Respondents cite a case, Estate of Healy29, for the
27 Motion at 3. The appellants are Ms. Murakas and James
Murakas on behalf of Peter Murakas Estate; the appellee is John
J. Enright, the attorney whose fees are at issue.
28
Murakas, 99 Ill.App.2d 342, 240 N.E.2d 797 (ls~Dist.
1968)
29
Motion at 3. There are mistakes and/or inconsistencies in
Respondents’ cites of this case. Attorney Orstrom handled a
portion of the Healy Estate probate on behalf of the Tierneys who
were testamentary trust beneficiaries. Orstrom is the Appellant,
and the Tierneys are the Appellees. Complainant will continue to
refer to this case here as Estate of Healy. The cite to the case
7
following propositions: Complainant has the burden of proof to
establish their claim for fees and costs, the Board is not bound
by Complainant’s attorney’s opinion of what constitutes a
reasonable fee, and Respondents are entitled to present expert
opinion evidence as to the reasonableness of Complainant’s fees
and costs.3° First, in the Estate of Healy case, the Court
acknowledged that an attorney rendering professional services has
a right to be compensated assuming there is an express, or
implied contract for employment with the party charged for those
services.31 This is -another breach of contract type case relating
to attorney fees. The attorney was one of the parties to the
alleged contract. In the Estate of Healy case, the attorney could
not, however, establish a contract, express, or implied.32 There
was no “meeting of the minds” between the parties.33 Under such
circumstances, the party asserting the claim, in the Estate of
Healy case an attorney, has the burden of proving the claim. That
brief analysis distinguishes the Estate of Healy case from The
People of the State of Illinois v. Skokie Valley Asphalt, Inc.,
is: 137 I1l.App.3d 406, 484 N.E.2d 890, 92 Ill.Dec. 159
(2nd
Dist. 1985)
.
-
30Motion at 3.
~‘
Estate of Healy, 137 Ill.App.3d at 409
32
Id.
~ Id.
8
Edwin L. Frederick, and Richard J. Frederick. And, even though
the case at bar is not a breach of contract case related to
attorney fees, Complainant did meet its burden of proof by
submitting the attorney fees and costs petition with supporting
affidavits as evidence.34 Complainant did not offer any opinion
as to the reasonableness of the rate charged; rather Complainant
accepted the Board’s determination of a reasonable rate and used
it within their fee petition.35 Respondents could have presented
evidence, expert or not, as to the reasonableness of
Complainant’s fees and costs in their response, but by their
choice
-
Respondentsdid
not.36
cite Johns v. Klecan37 as additional support for
their assertion that they could have used expert evidence on the
issue of reasonableness. First, the Johns case is a contingency
34See also 64 East Walton, Inc. v. Chicago Title and Trust
Company, 69 Ill.App.3d635, 387 N.E.2d 751, 25 Ill,Dec. 875 (1st
-
Dist. 1979), where a lease allowed for attorney fees to be
awarded to the prevailing party in a dispute; however, the
appellate-court remanded the issue of attorneyfees after the
trial court awarded fees because there was no evidence as to the
amount of time the attorney expended in the matter. Id. at 649
-
50. In this case, the Board has the evidence of time expended by
the AAG5 -with Complainant’s affidavits.
-
35The Board has already held that $150.00 hourly rate for
attorney’s fees is reasonable. People v. J & F Hauling Inc., PCB
02-221 (May 1, 2003)
36
Section 101.504 of the Board’s Regulations, 35 Ill. Adm.
Code 101.504.
-
~ Motion at 3.
-
9
fee contract case where a dispute arose related to attorney fees
becauseSecond, theRespondentfirst attorneypoints
outwasthedischargedJohns Courtand
anotherstates
thatretained.38
“while it may be proper for an attorney seeking fees to present
expert testimony on the issue of what is a reasonable fee
.
he -is not required to do so as a matter of law.”39 In other
words, if the case at bar was riot before the Illinois Pollution
Control Board which is eminently familiar with the prosecution of
-environmental enforcement cases, then Complainant could have
-
presented expert evidence on the issue of what is a reasonable
fee. Complainant is not required to do so, and rate is not an
issue.
-
Respondents also cite Chicago Professional Sports Limited
Partnership et al. v. National Basketball Association4° (“NBA
Case”)to assert they are entitled to discovery and their fees and
costs can be used to provide a comparable measure of
38Johns v. Klecan, 198 Ill.App.3d 1013, 556 N.E.2d 689, 145
Ill.Dec. 71
(lst
Dist. 1990)
‘~ Id. at 24. See also Motion at 3 citing same.
-
40 Motion at 3. Chicago Professional Sports Limited
Partnership et al. v. National Basketball Association is a
Federal District Court case that is not reported in the Federal
-Supplement. This case generated many different opinions over the
years. Complainant believes that Respondent meant to cite the
same case each time in their Motion, but the cites are
inconsistent. Through Westlaw Complainant found only one opinion
for this case from the Northern District of Illinois in 1996. The
Wes-tlaw cite for the case, which does concern attorney fees, is:
1996 WL 66111 (N.D. Ill.)
10
reasonableness of Complainant’s costs and fees.4’ During the
pendency of complex antitrust litigation, plaintiff’s attorneys
believed they substantially prevailed in part of the litigation
in such a way that they could proceed with a costs and fee
petition while at the same time conduct discovery related to the
source of impermissible cost-shifting (through the payment of
attorney fees to defendant’s attorneys) ~42 Defendants disagreed
so plaintiff filed a motion to compel. In ruling on the motibn,
District Court Judge Holderman explained that “to obtain
attorney’s fees, a plaintiff must present adequate documentation
of reasonable hours and costs invested in connection with their
successfulComplainantclaims
istonot.inestablishthe middlea
reasonableof
complexfee
award.-”antitrust43
litigation with Respondents. This is an environmental enforcement
case where the hearing is over, and the Board issued its
opinion.44 Whether the Complainant is the prevailing party is not
an issue. The Board ruled that Respondents committed willful,
-
41 Motion at 3.
-
42
Chicago Professional Sports Limited Partnership et al. v.
National Basketball ~ssociation, 1996 WL 66111 (N.D. Ill.)
“~
Id.
i”
People v. Skokie Valley Asphalt, Co., Inc., Edwin L.
Frederick, Jr., and Richard J. Frederick: PCB 96
-
98 (September
2, 2004)
11
-
knowing; or repeated violations of the Act.45 Complainant is not
claiming attorney fees for the time period of 1993 through May of
2002 and as such does not need information from Respondents’
attorneys to help support the claim which the NBA Case would
appear to allow.
-
Complainant presented adequate documentation of a portion of
the reasonable hours and costs invested in connection with their
successful prosecution of this environmental enforcement case to
establish a reasonable fee award.46 The documentation complies
with the Board’s Order,47 Section 42(f) of the Act,48 and past
BoardComplainantcases wheredoesattorneynot
seekfeesanyanddiscoverycosts
wereonawarded.this
issue.49 The
~
People v. Skokie Valley Asphalt, Co-., Inc., Edwin L.
Frederick, Jr., and Richard J. Frederick: PCB 96
-
98 (September
2, 2004)
at 23.
46 The People of the State of Illinois’ Attorney Fees and
Cos-ts Petition.
“~
People v. Skokie Valley Asphalt, Co., Inc., Edwin L.
Frederick, Jr., and Richard J. Frederick: PCB 96
-
98 (September
2,
2004)
.
-
-
48
415 ILCS 5/42 (f) (2002)
~
See for example: People v. Freedom Oil Company: PCB 93
-
59 ‘(May 5, 1994)
;
People v. Kershaw: PCB 92
-
164 (April 20,
1995)
;
People v. Kershaw: PCB 92
-
164 (May 4, 1995)
;
People v.
Panhandle Eastern Pipe Line Company: PCB 99
-
191 (November 15,
2001) at 35; People v. D’Angelo Enterprises, Inc. : PCB 97
-
66
(September 19, 2002)
;
People v. ‘D’Angelo Enterprises, Inc.: PCB
97
-
66 (November 7, 2002)
;
People v. J & F Hauling, Inc.: PCB 02
-
21 (February 6, 2003); and People v. J & F Hauling, Inc.: PCB
02
-
21 (May 1, 2003)
12
fact that Respondents chose not to submit any evidence does not
justify further delay or discovery when none is necessary, or
allowed.
C.
AAG
Cohen corrected an earlier mistake.
Respondents charge that the AGO and AAG Cohen committed
perjury apparently by correcting an earlier affidavit.50 Perjury
is “the act or an instance of a person’s deliberately making
material false or misleading statements while under oath.”5’
There is nothing anywhere in the record to suggest that AAG Cohen
deliberately made a-material false, or misleading statement
especially in this case where AAG Cohen identified and corrected
a mistakeAfter allreadingto thethebenefitBoard’sofSeptemberRespondents.2, 522004,
Order, AAG
-Cohen went back and reviewed that portion of Respondents’ Motion
to Strike and Objections to Complainant’s Closing Argument and
Reply Brief which pertained to costs and attorney fees in an
Uponeffortthatto
determinereview,
AAG
whetherCohen
decidedto
file athatmorefilingdetailed-~petition.a
separate
53
petition that included more detailed information related to the
50
Motion at 5.
51Black’s Law Dictionary, 7th Edition (1999).
52The People of the State of Illinois’ Attorney Fees and
Cos-ts Petition.
-
~‘
See AAG Cohen’s Affidavit attached as Exhibit B.
13
attorney fees and costs incurred would address many of
Respondents’ objections.54 In an effort to add more detail to the
costs incurred by the State of Illinois, AAG Cohen reviewed the
Afterinvoiceslistingand
receiptsthe
amountsso
thatfor
depositionsthey
could befromlistedreceipts,separately.
AAG
55
Cohen added them together for a total of $1,796.65; this amount
was’ significantly less than the $3,887.65 reported in an earlier
affidavit.-56 AAG Cohen could not find any other receipts for
depositions or recall any other depositions, or possible
transcript expenses, in the case which might account for the
discrepancyTherefore,
AAG
in
Cohendepositioncorrectedexpensesthe mistakelisted
inandthenotedaffidavits.this
fact57 in
the
-
Petition.There
is58no indication whatsoever that the AGO, or AAG Cohen
-
perjured themselves in correcting a -mistake under these
circumstances to Respondents’ benefit.
•D. AAG
Sternstein’s Fees are more than justified.
-
Respondents seem to make two arguments related to AAG
-
~ See AAG Cohen’s Affidavit attached as Exhibit B.
~ See AAG Cohen’s Affidavit attached as Exhibit B.
56
See AAG Cohen’s Affidavit attached as Exhibit B.
-
~ See AAG Cohen’s Affidavit attached as Exhibit B.
-
58
See AAG Cohen’s Affidavit attached as Exhibit B; see also
The People of the State of Illinois’ Attorney Fees and Costs
Petition.
-
14
Sternstein’s fees. First, Respondents want to conduct a full
blown investigation into possible misconduct at the Board and AGO
as to why a past employee of the Board was allowed to work on a
case pending before the Board.59 The Board already ruled on AAG
Sternstein’s involvement in the case on October 16,
2003.60
“Although no prejudice or bias resulted from Sternstein’s prior
involvement in this matter, Sternstein is disqualified from
further appearing in this proceeding.
,,61
It has been decided.
Second, Respondents challenge whether Complainant is
entitled to attorney fees for the time AAG Sternstein spent
working on this case prior to the Board’s October 16, 2003,
Order.62 Of course Complainant is entitled to those fees.
-
AAG Sternstein entered his appearance as co-counsel in this
case on July 30, 2002.63 Respondents’ counsel did not file their
Motion to Recuse Complainant’s Attorney Joel J. Sternstein until
September 9, 2003.64 Had Respondents filed their Motion to Recuse
59Motion at 4
-
5.
-
60
People v. Skokie Valley Asphalt, Co., Inc., Edwin L.
Frederick, Jr., and Richard J. Frederick: PCB 96
-
98 (October
16, 2003)
.
-
61
People v. Skokie Valley Asphalt, Co., Inc., Edwin L.
Frederick, Jr., and Richard J. Frederick: PCB 96
-
98 (October
-16, 2003)- at 4.
-
-
62
Motion at 4
-
5.
-
63See PCB 96
-
98 Docket.
-
64
See PCB 96
-
98 Docket.
-
15
when they first learned AAG Sternstein joined the case rather
than wait in hiding seeking to ambush Complainants a month before
trial, then a different AAG would have joined the case, just as
AAG Murphy did in October 2003, and Complainants would be
-
ent’itled to those AAGs fees as well.
There is no reason to delay Complainant’s Petition, deny
Complainant’s fees for the work performed by AAG Sternste±n
before October 16, 2003, and there is no need to allow discovery
on a matter that has already been decided.
E. The Board has already found the- hourly rate reasonable.
Respondents claim the Complainant’s hourly rate is
fabricated and unjustified and that
“ . . .
Complainants need to
use discovery to determine the true pay rate and actual
productive hours applied to this case.”65 Complainant’s hourly
-rate i.s not fabricated, is justified and no discovery is needed
to the contrary.
This case was heard by the Illinois Pollution Control Board.
It is an agency created over thirty years ago through the
Illinois Environmental Protection Act for the purpose of
controlling pollution, and restoring and protecting the Illinois
environment.66 The Board can adjudicate enforcement proceedings
65
Motion at 4.
66
415 ILCS 5/5 (2002); see also 35 Ill. Adm. 101.106 and
101.108.
16
for violations of the Act and related regulations and has been
doing so for years.67 If during the adjudication of an
enforcement proceeding, the Board finds that Respondents
violations were willful, knowing, or repeated, the Board is
authorized to award costs and fees to the AGO (or State’s
Attorney)As
statedand
hasbefore,been
thedoingBoardso
foris
eminentlyyears.68 familiar with the
prosecution of environmental enforcement cases and what a
reasonable fee is for attorneys prosecuting such cases. For
example, in 1994, the Board accepted as evidence an AAG affidavit
and determined that $100.00 per hour was reasonable for AAG time
after a finding that Respondents committed willful, knowing and
repeatedIn
2001,violationsthe Boardof
thedeterminedBoard’s regulations.that
$120.0069per hour was a
67
415 ILCS 5/5 (2002); 35 Ill. Adm. 101.106 -and 101.108.
68415
ILCS 5.42(f) 2002); see also Pedple v. Freedom Oil
Company: PCB 93
-
59 (May 5, 1994); People v. Kershaw: PCB 92
-
164 (April 20, 1995)
;
People v. Kershaw: PCB 92
-
164 (May 4,
1995); People v. Panhandle Eastern Pipe Line Company: PCB 99
-
191 (November 15, 2001) at 35; People v. D’Angelo Enterprises,
Inc.: PCB 97
-
66 (September 19, 2002)
;
People v. D’Angelo
Enterprises, Inc. : PCB 97
-
66 (November 7, 2002); People v. J &
F Hauling, Inc.: PCB 02
-
21 (February 6, 2003); and People v. J
& F Hauling, Inc.: PCB 02
-
21
(May 1, 2003)
69
People v. Freedom Oil Company: PCB 93
-
59- (May 5, 1994)
at 11. In 1995, the Board again stated that $100.00 per hour was
a reasonable rate in the Kershaw orders. People v. Kershaw: PCB
92
-
164 (April 20, 1995)
;
People v. Kershaw: PCB 92
-
164 (May
4, 1995).
17
reasonable rate in the Panhandle Eastern case.7°The Board, based
on their findings that Respondents committed knowing and repeated
violations of the Act, awarded costs and fees pursuant to Section
42(f) with supporting affidavits.71 In 2002, the Board found that
Respondent D’Angelo Enterprises, Inc. committed knowing and
repeated violations of the Act and Board regulations, ordered
Complainant to file an affidavit of the People’s costs and
attorney fees, and, as in this case, gave Respondent 14 days to
respond to Complainant’s claimed costs and fees.72 The Board
found the rate of $120.00 per hour supported by affidavits to
againInbe
2003,reasonable.the Board73 found that $150.00 per hour was a
reasonable rate for attorney fees.74 The Board found that
Respondent, J & F Hauling, committed knowing and repeated
70 People v. Panhandle Eastern Pipe Line Company: PCB 99
-
191 (November 15, 2001)
.
Like the case at bar, -the Panhandle
Eastern case was a contested hearing,. Based on a reading of the
Opinion and Order of the Board in that case, it appears that the
costs and fees issue was addressed in closing arguments
-
appareptly without objection.
-
71People v. Panhandle Eastern Pipe Line Company: PCB 99
-
191 (November 15, 2001) at 35.
72 People v. D’Angelo Enterprises, Inc.: PCB 97
-
66
(September 19, 2002) at 20.
~ People v. D’Angelo Enterprises, Inc.: PCB 97
-
66
(No~vember7, 2002) at 2
-
3.
~‘
People v. J
&
F Hauling, Inc. : PCB 02
-
21 (May 1, 2003)
18
violations of the Act and Board’s regulations.75 Therefore, the
Board ordered Complainant to file an affidavit of Complainant’s
-costs and fees in the case, and, as in the case at bar, gave
Respondents 14 days to respond to the affidavits.76 Based on
Complainant’s affidavits, the Board found the hourly rate of
$150.00Complainanttg be reasonableuses
andandseeksawardedthe samethe hourlysame.77 rate in its
Petition: $150.00. Complainant does not seek to increase the
rate, or dispute the Board’s findings that the hourly rate of
$150.00 per hour is reasonable. The Board has already established
the reasonable hourly rate. Complainant has not fabricated
anything, and there is no need to conduct discovery on an issue
already decided.
-
III. CONCLUSION
This case has been pending before the Board since 1995. In
2004, the Board found that Respondents Edwin and Richard
Frederick were individually liable and that Respondents committed
willful, knowing, or repeated violations of the Act and Board
‘~
People v. J & F Hauling, Inc.: PCB 02
-
21 (February 6,
200-3); and People v. J & F Hauling, Inc.: PCB 02
-
21 (May 1,
2003)
-
76 People v. J & F Hauling, Inc.: PCB 02
-
21 (February 6,
2003) at 9.
- -
~ People v. J & F Hauling, Inc. : PCB 02
-
21 (May 1, 2003)
at 2
-
3.
-
-
19
Regulations.78 As such, the Board accepted Complainants earlier
filed affidavits and allowed Complainant to supplement those
affidavits, at least in part, based on Respondents’ objections.
Complainant, based on Respondents’ objectionC, filed more
detailed affidavits in a fees and costs petition filed September
17, 2004. Complainant’s Petition only seeks attorney fees from
May 2002,. not for all the work performed by other AAGs years
past.
RespondentsRespondentschose
filednot
totheircontestResponseany particularas
allowedentryby thewithinBoard.79
Complainant’s Petition and chose not to submit any evidence
contradicting the Petition, any entry in the Petition, or any
evidence challenging the reasonableness of the Petition or hourly
L
rate. Furthermore, this is not a breach of contract, contingency
fee, or fee sharing issue. This is a fee petition authorized by
the Illinois Environmental Protection Act and the Illinois
Pollution Control Board where Respondents committed willful,
knowing, or repeated violations of environmental laws or
regulations.
-
The evidence presented by Complainant conforms with the
-
-
78 People v. Skokie Valley Asphalt, Co., Inc., Edwin L.
Frederick, Jr., and Richard J. Frederick: PCB 96
-
98 (September
2, 2004).
~ People v. Skokie Valley Asphalt, Co., Inc., Edwin L.
Frederick, Jr., and Richard J. Frederick: PCB 96
-
98 (September
2, 2004) at 23.
-
-
20
evidence the Board orders and accepts in cases where it finds
that Respondents willfully, knowingly, or repeatedly violated the
Act- or Board regulations.8° The Board regularly gives Respondents
14 days to-respond or contest Complainant’s costs and fees
petition and supporting affidavits.
-
Respondents filed their response and objections. There is no
need to stay, or extend time to decide the fee petition. The
Board has Complainant’s affidavits, is familiar with reasonable
hourly rates charged by attorneys practicing environmental law,
and the length and complexities of the litigation in this case.8’
WHEREFORE, Complainant, People of the State of Illinois,
requests this Board deny Respondents’ Motion to Stay and/or
Extend Time to Respond to Complainant’s Petition for Attorney
80People v. Freedom Oil Company: PCB 93
-
59 (May 5, 1994);
People v. Kershaw: PCB 92
-
164 (April 20, 1995)
;
People v.
Kershaw: PCB 92
-
164’- (May 4, 1995); People v. Panhandle Eastern
Pipe Line Company: PCB 99
-
191 (November 15, 2001) at 35; People
v. D’Angelo Enterprises, Inc. : PCB 97
-
66 (September -19, 2002)
-People v. D’Angelo Enterprises, Inc.: PCB 97
-
66 (November 7,
2002); People v. J & F Hauling, Inc.: PCB 02
-
21 (February 6,
200-3); and People v. J & F Hauling, Inc.: PCB 02
-
21 (May 1,
2003)
-
81
AAG5 Cohen and Murphy spent additional time working on
this case as a result of Respondents’ Motion preparing this
Response and as such the amount sought for attorney fees should
be increased in the Petition accordingly. See AAG Cohen’s second
Affidavit attached as Exhibit C, and AAG Murphy’s Exhibit
attached as Exhibit D.
-
AAG -Cohen spent an additional 34.5 hours on this case since
filing the Petition and AAG Murphy spent an additional 2.5 hours
on this case since filing the Petition for a total of 37 hours in
attorney time. 37 hours X $150.00
=
$5550.00.
-
21
Fees and Costs and further award Complainant’s Attorney Fees
Costs consistent with Section 42(f) of the Act, the Board’s
Order, and the evidence presented in The People of the State
Illinois’ Attorney Fees and Costs Petition and this Response
which includes an additional 37 hours of attorney time and
$5,550.00 in additional fees.
PEOPLE OF THE STATE OF ILLINOIS
Ex rd.
LISA MADIGAN, Attorney
General of the State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
ROSEMARIE CAZEAU, Chief
Environmental Bureau
BY:
:TCHELL L
BERNARD J. MURPHY, JR.
Assistant Attorney General
Environmental Bureau
188 West Randolph, 2O~~Floor
Chicago, IL 60601
(312) 814-5282
(312) 814-3908
and
of
22
REC~.NED
O4-~O977
k
iN THE APPELLATE COURT OP
-ILLiNOIS
-
ROBERT J M~Nl ~
FOR THE SECOND DISTRICT
APPEL~TECOURT
2nd
~TRICT
-
-
-
-
SKOKIE VALLEY ASPHALT, CO., NC.,
)
—
-
-
-~-~
--
-~-~---
-, -
- —
--
EDWIN L. FREDERICK, SR,
)
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.,
)
Petition for Review
-
-) -
-
-O-rder-o-f-the
Petitioners
)
Illinois Pollution Control Board
-
)
and
Docket Number
v.
)
PCB96-98
)
ILLINOIS POLLUTION CONTROL BOARD,
)
-
-
Illinois Pollution Control Board Chairman J
)
PHILIP NOVAK, Illinois Pollution Control Board
)
Member G. TANNER GIRARD, Illinois
)
-
~
iLk’
Pollution Control Board Member THOMAS E.
)
‘-‘V
JOHNSON, Illinois Pollution Control Board
)
-0
r\)
Member NICHOLAS J. MELAS, Illinois
)
co
Pollution Control Board Member ANDREA 5.
)
~
fll
MOORE,
Assistant to Illinois Pollution Control
)
=
Board Member Johnson JOHN KNITTLE, Illinois
)
Pollution Control Board Hearing Officer Carol
)
-
(~‘.
Sudman,
PEOPLE OF THE STATE OF ILLINOIS)
-
and their attorney the ILLINOIS ATTORNEY
)
GENERAL’S OFFICE, Assistant Attorney
)
General Mitchell L. Cohen, Assistant Attorney
)
General Joel J. Sternstein
and Assistant Attorney
)
-
-
General Bernard J. Murphy Jr.,
-
)
)
Respondents.
)
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 ofSkokie Valley Asphalt Co., Inc., hereby petition
the court for
review ofthe order ofthe Illinois Pollution Control Board which finds that the
Respondents/Petitioners violated the Environmental Protection Act
(415
ILCS
5
(2002)) and
Illinois Pollution Control Board but withholds a decision regarding attorneys’ fees and costs until
this matter is
fully
addressed by the parties entered on September 2, 2004.
David
S. O(eill ~
David S. O’Neill
-
~ttQ.rn~yaLLaw
____-
--______
________
5487
N. Milwaukee Avenue
Chicago, Illinois 60630-1249
(773)792-1333
-
2
-
CERTIFICATE OF SERVICE
I, the undersigned, certifS’ that I have served the attached Petition for Review of Order of
-
the Illinois Pollution
Control Board for Docket Number PCB 96-98 by hand delivery on
September 28, 2004,
upon the following parties:
Mitchell Cohen
-
-En-v-iro-nmen-t-a~B-ur~au~---
Assistant Attorney General
Illinois Attorney General’s Office
188 W. Randolph, 20th Floor
Chicago, IL 60601
Joel J. Sternstein
Environmental Bureau
Assistant Attorney General
Illinois Attorney General’s Office
188 W. Randolph, 20th Floor
Chicago, IL 60601
Bernard J. Murphy Jr.
Environmental Bureau
Assistant Attorney General
Illinois Attorney General’s Office
188 W. Randolph, 20th Floor
Chicago, IL 60601
Clerk ofthe Illinois Pollution Control Board
Illinois Pollution Control Board
Thompson Center 1 ~ Floor
100 W. Randolph St.
Chicago, IL 60601
-
J. Philip Novak
-
Chairman
Illinois Pollution Control Board
Thompson Center ~ Floor
100 W. Randolph St.
Chicago, IL 60601
G
Tanner
Girard
Board
Member
Illinois Pollution Control Board
Thompson Center 1 1th
Floor
~W~Randoiph&
Chicago, IL 60601
Thomas E. Johnson
Board
Member
Illinois Pollution Control Board
Thompson Center ~1~hFloor
100 W. Randolph St.
Chicago, IL 60601
Nicholas J. Melas
Board Member
Illinois Pollution Control Board
Thompson Center
11th
Floor
100 W. Randolph St.
Chicago, IL 60601
Andrea S. Moore
Board Member
Illinois Pollution Control Board
Thompson Center 1
1th
Floor
100 W. Randolph St.
Chicago, IL 60601
John Knittle
Assistant to Board Member Johnson
Illinois Pollution Control Board
Thompson Center 1
1th
Floor
100 W. Randolph St.
Chicago, IL 60601
Carol
Sudman
Hearing
Officer
Illinois Pollution Control Board
Thompson Center 1
1th Floor
100 W. Randolph St.
Chicago, IL 60601
-
NOTARY
SEAL
SUBSCRIBED AND SWORN TO ME this______________
day of ______________,20 O
IN
THE APPELLATE COURT OF ILLINOIS
FOR THE SECOND DISTRICT
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.,
)
Petition for Review
)--------of-Order-of-the
Petitioners
)
Illinois Pollution Control Board
)
and
DocketNumber
v.
)
PCB96-98
)
ILLINOIS POLLUTION CONTROL BOARD,
)
Illinois Pollution Control Board Chairman
J
)
PHILIP NOVAK,
Illinois Pollution Control Board
)
Member G. TANNER GIRARD,
Illinois
)
Pollution Control Board Member THOMAS E.
)
JOHNSON, Illinois Pollution Control Board
)
-
Member NICHOLAS J. MELAS, Illinois
)
Pollution Control Board Member ANDREA S.
)
MOORE, Assistant to Illinois Pollution Control
)
Board Member Johnson
JOHN
KNITTLE, Illinois
)
Pollution Control Board Hearing Officer Carol
)
Sudman, PEOPLE OF THE STATE OF ILLINOIS)
and their attorney the ILLINOIS ATTORNEY
)
GENERAL’S OFFICE, Assistant Attorney
)
General Mitchell
L.
Cohen, Assistant Attorney
)
General Joel J. Sternstein and Assistant Attorney
)
General Bernard J. Murphy Jr.,
)
)
Respondents.
)
NOTICE OF FILING
PLEASE
TAKE NOTICE
that I have today filed with the Office
ofthe Clerk ofthe
APPELLATE COURT OF ILLINOIS FOR THE SECOND DISTRICT Petitioners’ Petition for
Review ofOrder ofthe Illinois Pollution Control Board for Docket Number PCB 96-98, a copy
of which is hereby served upon you.
Davi~.O~Nei1V
-
September 28, 2004
David S. O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, IL 60630-1249
-)--7-92-43-3-3
State -of Illinois
SS
County of Lake
AFFIDAVIT
I, Mitchell L. Cohen, upon affirmation, state as follows:
1. I am an Assistant Attorney General in the Environmental
Bureau North of the Illinois Attorney General’s Office and
-
assigned to assist in the representation of the People of the
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. -After reading the Board’s September 2, 2004, Order, I
-
went back and reviewed that portion of Respondents’ Motion to
Strike and Objections to Complainant’s Closing Argument and Reply
Brief which pertained to costs and attorney fees in an effort to
determine whether to file a more detailed petition.
3. After that review, I decided that filing a separate
petition -that included more detailed information related to the
attorney fees and costs incurred would address many of
Respondents’ objections.
-
4. In an effort to add more detail to the costs incurred
by -the State of Illinois, I reviewed the invoices and receipts so
that they could be listed separately.
5. After listing the amounts for depositions from
receipts, I added them together for a total- of $1,796.65; this
amount was significantly less than the $3,887.65 reported in an
earlier affidavit.
-
6. I could not find any other receipts for depositions or
recall any other depositions, or possible transcript expenses, in
the case which might account for the discrepancy in deposition
expenses listed in the affidavits.
7. Therefore, I corrected the mistake and noted this fact in
the Petit-ion.
Further affiant sayeth not.
-
Mitchell L. Cohen
-
Assistant Attorney General
Environmental Bureau North
Subscribed to and affirmed before me
this J~~.dayof
~‘~-2~
,
2004
G~
~o t ary
Public
- t
OFF~C!AL
SEAL
~
PHYLUSDUNT0I~I
~
~NOTARY PUBLIC, STATF
WN018
~:
j~~~MISSIONEXP~TL.:2.7-2004
~
-
-
~
\\oagfile\hotne$\MCohen\NLC\SkokieValley\MLCRespFeePetAffidavit .wpd
State of -Illinois
SS
County of Lake
AFFIDAVIT
I, Mitchell L. Cohen, upon affirmation, state as follows:
-
1. I am an Assistant Attorney-General in the Environmental
Bureau North of the Illinois Attorney General’s Office and
assigned to assist in the representation of the People of the
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. After filing The People of the State of Illinois’
Attorney Fees and Costs Petition September 17, 2004, I have
worked an additional thirty-four-and one-half (34.5) hours on
this case as a direct result of Respondents’ filings September
28th,
2004.
3. On September 28, 2004, I spent one (1) hour reading and
discussing “Respondents’ Initial Response To And Motion To Stay
And/Or Extend Time To Respond To Complainant’s Petition For
Attprney Fees And Costs” and the Petition for Review and related
documents filed before the Appellate Court.
4. On October 5, 2004, I spent two (2) hours reviewing the
same documents filed By Respondents September
28th
and meeting
with management to discuss the same.
-
5. On October 6, 2004, I spent four (4). hours researching
Complainant’s Response to Respondents’ Motion.
EXHIBIT
.0
-c
6. On October 7, 2004, I spent four (4) hours researching
and outlining Complainant’s Response to Respondents’ Motion.
7. On October 8, 2004, I spent six (6) hours researching and
drafting Complainant’s Response to Respondents’ Motion.
-
8. On October 10, 2004, I spent seven and one half (7.5)
hours researching and drafting Complainant’s Response to
Respondents’ Motion.
-
9. On October 11, 2004, I spent six (6) hours drafting
Complainant’s Response to Respondents’ Motion and a related
affidavit.
10.
On October 12, 2004, I spent four (4) hours editing
Complainant’s Response to Respondents’ Motion and preparing this
affidavit and preparing the Response for filing.
-
Further affiant sayeth not.
-
Mitchell L. Cohen
-
Assistant Attorney General
-
Environmental Bureau North
Subscribed to and a~firmed before me
this (~ day of
U~’j~~
,
2004.
N ary
GD~
Public
r~I~I~AL~
-
~
PKYLL~SDUNTON
~NOTARY PUBLIC, STATE OF ILLINOIS
~MY COMMISSION EXPIRES 12-7-2C~
~
.
wpd
State of Illinois
County of Lake
SS
AFFIDAVIT
I, Bernard J. Murphy, Jr., upon affirmation, state as
follows:
the Environmental
Office and
People of- the
Skokie Valley
before the
1. I am an Assistant Attorney General in
Bureau North of the Illinois Attorney General’s
assigned to assist in the representation of the
State of Illinois in the case styled, People v.
Asphalt Co., Inc., et al., PCB No. 96-98, filed
Illinois Pollution Control Board.
2. After filing The People of the State of Illinois’
Attorney Fees and Costs Petition September 17, 2004, I have
worked an additional two and one-half (2~)hours on this case as
a direct result of Respondents’ filings September
~
2004.
3. On September 29, 2004, I spent one (1) hour reading
“Respondents’ Initial Response To And Motion To Stay And/Or
Extend Time To Respond To Complainant’s Petition For Attorney
Fees And Costs” and the Petition for Review and related documents
filed before the Appellate Court.
4. On October 5, 2004, I spent one (1) hour reviewing the
same documents filed By Respondents September
28th
and meeting
with management to discuss the same.
-
5. On October 12, 2004, I spent one-half
(~)
hour editing
EXHIBII
Complainant’s Response to Respondents’ Motion and preparing this
affidavit.
Further affiant sayeth not
Subscribed to and affirmed before me
this
)j~
day of
0cc1)
~
,
2004
rcIALSE~~
~
PKYLLISDUi4TON
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 12.7-2004
,sistant Attorney General
Environmental Bureau North
CERTIFICATE OF SERVICE
I, MITCHELL L. COHEN, an Assistant Attorney General, do
certify that I caused to be mailed this ~ day of October,
2004, the foregoing COMPLAINANT’S RESPONSE TO RESPONDENTS’ MOTION
TO STAY AND/OR EXTEND TIME TO RESPOND TO COMPLAINANT’S PETITION
FOR ATTORNEYS’ FEES AND COSTS
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.
\\oaguile\home$\MCohen\MLC\SkokieValley\RespToMoToStayFeePet.wpd
