BEFORE THE ILLINOIS POLLUTION CONTROL 

BO~ECF~VEb

CLERK’S OFFICE

PEOPLE OF THE STATE OF ILLINOIS,

NOV

2004

Complainant,

STATE OF

ILLINOIS

No. PCB

96-~HUt~OflControl board

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 November 19, 2004, we filed with

the Illinois Pollution Control Board Complainant’s Motion to Void

the Board’s October 21, 2004, Order, a true and correct copy of

which is attached and hereby served upon you.

Respectfully submitted,

LISA MADIGAN

Attorney General

State of Illinois

BY:

______

MITCHELL L. COHEN

Assistant Attorney General

Environmental Bureau

188 W. Randolph St., 20th Floor

Chicago, Illinois 60601

(312) 814-5282

SERVICE LIST

Mr. David O’Neill

Mr. Michael B. Jagwiel

Attorneys at Law

5487. North Milwaukee

Chicago, Illinois 60630

Ms. Carol Sudman

Hearing Officer

Illinois

Pollution Control Board

600 S. Second Street,

Suite 402

Springfield,

Illinois

62704

BEFORE THE ILLINOIS 

POLLUTION

CONTROL BOARDRECE~VF~

CLERK’S OFFICE

PEOPLE OF THE STATE OF ILLINOIS,

NO~f192004

Complainant,         

)

STATE OF lLIJ~o~S

Pollution Comrol

board

v.

)

No. PCB 96-98

SKOKIE VALLEY ASPHALT, CO., INC., 

)

an Illinois corporation,

EDWIN L. FREDERICK, JR.,

individually and as. owner and

President of Skokie Valley Asphalt

Co., Inc., and

RICHARD J. FREDERICK,

individually and as owner and

Vice President of

Skokie Valley Asphalt Co., Inc.,

Respondents.

COMPLAINAN’T’S MOTION TO VOID

THE BOARD’S OCTOBER 21, 2004, ORDER

Complainant,

PEOPLE OF THE STATE OF ILLINOIS, by LISA

MADIGAN,

Attorney General of the State of Illinois, pursuant to

Sections 101.202, 101.500, and 101.904 of the Board’s Procedural

Regulations, 35 Ill. Adm. Code 101.202, 101.500, and 101.904,

respectfully

moves this Board to void that portion of its October

21, 2004, Order that changes

its September 2, 2004, Order that is

on appeal. In support of this Motion, the People state as

follows:

INTRODUCTION

1. On September 2, 2004, the Board issued an Opinion and

Order (“September Order”) finding Respondents violated the

Environmental Protection Act and Board Regulations.’ This

September Order included a finding 

“ . . .

that Edwin and Richard

Frederick are personally liable for the activities of Skokie

Valley.”2 It also included a finding

“ . . .

that Respondents

committed2.

Thewillful,Septemberknowing,Orderordidrepeatednot awardviolationsthe People’sin

thiscostscase.”and3

attorneys’ fees as requested, but instead left that issue open

for additional filings by the Parties and presumedly anOther

Board

3.

Order

Based

addressing

on the evidence,

the issue.4

the Board ordered Respondents to

pay a civil penalty of $l53,000.~

4. Respondents were ordered to pay the civil penalty “no

later

than October 18, 2004 

“~

which is approximately 46 days

after

the

Following

Board issuedthe the“ORDER”SeptemberlanguageOrder.at 7the

end of the

September Order, the Board laid out the statutes and regulations

People v. Skokie Valley Asphalt Co. et al., PCB 96

(September 2, 2004)

~•

at 11.

~ Id. at 23.

~ Id. 1, 6, and 23.

~ Id. at 1, 23, and 24.

6 Id. at 24.

~‘ The September 2~ Order mistakenly states that October 18,

2004,

“ . . .

is the 60th

day after the date of this order 

. .

.“

Id.

2

which essentially explain how to perfect an appeal or motion to

reconsider.8 This language gives the September Order at least the

appearance of a final order even though the issue of the People’s

costs

6.andAsattorneyssuch, infeesadditionremained.to the9

People’s petition for

attorneys fees and costs, Respondents response to the petition

and related motions, Respondents filed a Petition for Review of

the September Order with the State of Illinois’ Second District

Appellate Court on September 28, 2004.’°

THE BOARD LOST JURISDICTION OF THIS CASE

SEPTEMBER 28, 2004

7. The Board lost jurisdiction of this case September 28,

2004,8.whenAsRespondentsthe

AppellatefiledCourttheirhasPetitionexplainedforinReview.’the Cain1 v.

Sukkar case, 

“ut

is fundamental that the proper filing of a

notice of appeal causes the jurisdiction of the appellate court

to attach 

instanter

and deprives the trial court of jurisdiction

j~•at 24. possibly creating some confusion as to whether

the Order was final, or

~ j~. at 23, 24.

‘°Peoplev. Skokie Valley Asphalt Co. et al., PCB 96 

98

(October 21, 2004) 

See also Skok±eValley Asphalt et al. 

Illinois Pollution Control Board

et al., No. 04-0977 (Ill. App.

2’~Dist. 2004)

“

People v. Skokie Valley Asphalt Co. e~al., PCB 96 

(October 21, 2004) at 3.

3

to modify its judgment or to rule on matters of substance which

are the9. subjectThe

CainofCourtappeal.”went12on to explain that “fonce an appeal

has been duly filed in the 

appellate

court by filing a notice of

appeal, the trial court is restrained from entering any order

which would change or modify the judgment or its scope

b13

10. The Board acknowledged it 

“ . . .

no longer has

jurisdiction in this case” and cited the Cain v. Sukkar case.’4

ONCE THE BOARD LOSES JURISDICTION

ANOTHER ORDER CANNOT ISSUE CHANGING THE APPEALED ORDER

11. Yet, on October 21, 2004, the Board issued another Order

(“October Order”) and substantively changed its September Order

while

12.it

isThebeingSeptemberappealed.’Order5

required Respondents to pay the

civil penalty by October 

18th;

the October Order was issued after

Respondents were originally ordered to pay the penalty and

Cain v. Sukkar, 521 N.E.2d 1292, 1294, 167 Ill. App. 3d

941, 945 (Ill. App. 

4th

Dist.

1988)

Id.

People v. Skokie Valley Asphalt Co. et al., POB 96 

(October 21, 2004) at 2.

People v. Skokie Valley Asphalt Co. et al., PCB 96 

(October 21, 2004). See also People v. Skokie Valley Asphalt Co.

et al., PCB 96 

(September 2, 2004) and Skokie Valley Asphalt

et al. v. Illinois Pollution Control Board et al., No. 04-0977

(Ill. App. 

2nd

Dist. 2004)

somehow stayed payment of the penalty imposed in the September

Order13.pendingThe

samethe Octoberappeal.’6Order states that 

“ . . .

the Board

grants the respondents’ motion to stay the payment of the penalty

,,‘7

14. No motion to stay the payment of the penalty exists.

Respondents did not file a motion to stay the payment of the

•penalty.’15. 8In

the October Order, the Board correctly summarized the

one Motion Respondents filed after the September Order:

In the motion, the respondents request the Board

to correct deficiencies in the September 2, 2004

opinion and order that prejudice the parties’ rights to

proceed in accordance with the Board’s procedural

rules, and also request a stay or extension of the time

to respond to the People’s request for attorney fees

and costs. Mot. At i.’~

16. The one Motion Respondents’ filed after the September

Order is titled “Respondents’ Initial Response to and Motion to

Stay and/or Extend Time to Respond to Complainant’s Petition for

People

Skokie Valley Asphalt Co. et al., PCB 96 

(October 21, 2004) at 2.

People v. Skokie Valley Asphalt Co. et al., PCB 96 

(October 21, 2004) at 2.

‘~

See Respondents’ Initial Response to and Motion to Stay

and/or Extend Time to Respond to Complainant’s Petition for

Attorneys’ Fees and Costs and the PCB Docket for this case.

People v. Skokie Valley Asphalt Co. et al., PCB 96 

98

(October 21, 2004) at 2.

Attorneys’ Fees and Costs.”2°

It has nothing to do with staying

the September Order, or the payment of the penalty.

17. Respondents do •not ask to stay the September Order, or

the payment of the penalty.2’

18. Yet, the same October Order states “tihe Board may,

however, consider that portion of the motion seeking to stay the

paymei~tof penalty” and sites as an example the Pielet Bros.

Tradinq19. case.There22

is no portion of Respondents’ Motion seeking to

stay payment of the penalty and therefore, the Pielet Bros.

Tradjp,q20. caseTheredoesarenotat

leastapply.23two reasons the Pielet case does not

apply: first, in Pielet Respondents filed a Motion to Stay the

Board Order for an appeal, and second, Complainant specifically,

in a written response, did not object to staying payment of the

20

See Respondents’ Initial Response to and Motion to Stay

and/or Extend Time to Respond to Complainant’s Petition for

Attorneys’ Fees and Costs filed September 28, 2004.

21

See Respondents’ Initial Response to and Motion to Stay

and/or Extend Time to Respond to Complainant’s Petition for

Attorneys’ Fees and Costs and the PCB Docket for this case.

22

People v. Skokie Valley Asphalt Co. et al., PCB 96 

98

(October 21, 2004) at 2.

23

See Respondents’ Initial Response to and Motion to Stay

and/or Extend Time to Respond to Complainant’s Petition for

Attorneys’ Fees and Costs and IEPA v. Pielet Bros. Trading, Inc.,

PCB 80 

185 (Feb. 4, 1982)

6

penalty pending appeal.24 Since Complainant did not object to

staying payment of the penalty, such action by the Board was not

an issue21. before“The

Board’sthe

~

proceduralDistrict

onrulesappeal.provide25

for motions to

stay.”26 In particular, section 101.514 of the Board’s Procedural

Rules states “motions to stay a proceeding must be directed to

the Board and must be accompanied by sufficient information

•

detailing why a stay is needed 

,,27

22. Respondents did not file a motion to stay the September

Order, or a motion to stay payment of the penalty. The Board’s

procedural rules do not provide the Board with unilateral

authority to stay a previous order.

23. “The decision to grant or deny a motion to stay is

• vested in the sound discretion of the Board.”28 However, the

motion has to exist before that discretion vests. The motion did

not exist prior to the Board issuing its October Order.

24. Just as the Pielet case does not apply to the instant

24

IEPA v. Pielet Bros. Trading, Inc., PCB 80 

185 (Feb. 4,

1982) 

Pielet Bros. Trading, Inc. v. PCB, 110 Ill. App. 3d 752,

442 N.E.2d 1374 

(5th

Dist. 1982) 

26

People v. Skokie Valley Asphalt Co. et al., PCB 96 

98

(October 21, 2004) at 2.

27

~ Ill. Adm. Code 101.514.

28

People v.. Skokie Valley Asphalt Co. et al., PCB 96 

98

• (October 21, 2004) at 2.

7

matter, neither does State Oil.29 In State Oil, cited in the

October Order, Respondents filed Motions to Stay the Order with

the Board.3°

25. The Board lost jurisdiction to change its September

Order when Respondents filed their Petition for Review. Though

there is precedent to suggest the Board could grant a Motion to

Stay a final order in anticipation of, or pending an appeal, such

motion does not exist in this case. Therefore, that portion of

the October Order which changes the September Order should be

voided.

RESPONDENTS ALREADY IN CONTEMPT

26. The September Order required Respondents to pay their

civil penalty “nb later than October 18, 2004 

•‘~~‘

They

did not pay the penalty. The penalty was due three days before

the Board even issued the October Order.

27. Respondents also did nt file a Motion to Reconsider,

file a Motion to Stay the Order, file a Motion to Stay Payment of

the Penalty, post an appropriate bond,32 or seek similar relief

29 People v. State Oil Co., PCB 97-103 (May 15, 2003).

30 Id.

31People v. Skokie Valley Asphalt Co. et al., PCB 96 -98

(September 2, .2004)

32 See, for example, IEPA v. Incinerator, Inc., PCB 71 

69

(October 14, 1971), wherein the Board, after Respondent. file a

8

with the appellate court.

28. Therefore Respondents are in violation of the Board’s

September Order.

CONCLUSION

29. The Board lost jurisdiction to change the September

Order on September ~ when Respondents filed their Petition for

Review with the Appellate Court.

30. Respondents did not file with the Board a Motion to Stay

the Order, or a Motion to Stay Payment of the Penalty.

31. The Board is without jurisdiction to change the

September Order and without authority to grant relief, in the

form of staying payment of the civil penalty, which is not

sought.

WHEREFORE, Complainant, the People of the State of Illinois,

respectfully requests this Board void that portion of the October

21, 2004, Order which changes the September 2, 2004, Order

already on appeal and require Respondents to pay the civil

Motion to Stay payment of the penalty, granted the Motion on the

condition that Respondent post an appropriate bond.

9

penalty plus interest in accordance with the September 2, 2.004

Order.

PEOPLE OF THE STATE OF ILLINOIS,

ex rel.

LISA MADIGAN,

Attorney General of the

State of Illinois,

By: MITCHELL L. CO 

L (

~

Assistant Attorney General

Environmental Bureau

188 W. Randolph St. 

20th Fl.

Chicago, IL 60601

(312) 814-5282

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10

CERTIFICATE OF SERVICE

I, MITCHELL COHEN, an Assistant Attorney General, certify

that on the l9~ day of November, 2004, I caused to be served by

First Class Mail the foregoing 

Complainant’s Motion to Void the

Board’s October 21, 2004, Order,

to the parties named on the

attached service list.

•

•,

Assistant Attorney General

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