RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S OFFICE
DEC 012004
PEOPLE OF THE STATE OF ILLINOIS,
)
p~’~,0ctroIBoard
Complainant,
)
)
PCB 96-98
)
V.
)
Enforcement
)
)
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
)
RESPONSE
TO COMPLAINANT’S MOTION TO VOID
THE
BOARD’S
OCTOBER
21. 2004 ORDER
The Respondents, 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., by and through their attorney, David S. O’Neill, herein respond to the Complainant’s
Motion to Void the Board’s October 21, 2004, Order. In response to the Motion, the
Respondents state as follows:
1.
On November 19, 2004, the Complainants filed a Motion to Void the Board’s October
21, 2004 Order and seeks to have the order to stay payment ofthe penalty imposed by the
September 2, 2004 Opinion and Order voided.
2.
The Board’s Procedural Rules do not make provisions for motions to void Board
Opinions and Orders by motion ofthe parties.
3.
The Complainant’s motion to void is a thinly disguised attempt to file a motion for
reconsideration ofa Board order.
4.
The Board’s Procedural Rules only make provisions for motions for reconsideration of
final Board opinions and orders
(35
Iii. Adm. Code 10 1.902).
1
H
5.
Because the Board’s October 21, 2004 Order is clearly not a final opinion and order, the
Complainant’s motion to void/motion for reconsideration should not be considered by the Board.
6.
In its motion, the Complainant misstates that this matter is on appeal (Motion at 1.). In
fact, the Complainant had been notified by the State of Illinois Appellate Court Second District
that the appeal had been dismissed (Ill. App Ct. 2~x~Dist. Order ofNovember 18, 2004) prior to
the filing of its motion.
7.
At the time that the Complainant filed its November 19, 2004 Motion, it was aware that
the Board had jurisdiction and would be able to reissue or renew its order of October 21 without
any issue ofjurisdiction.
8.
Wherefore, the Complainant’s Motion was filed in bad faith and should have been to filed
as a motion requesting the Board to renew or reissue its Order of October 21, 2004 instead of a
motion arguing to void based on lack ofjurisdiction.
9.
While the Complainant’s arguments regardingjurisdiction are not persuasive, this issue
can easily be avoided because the Board may Order a renewal ofits order ofOctober 21, 2004 or
reissue the Order at this time when the Complainant’s issue ofjurisdiction is no longer relevant.
10.
The Complainant also argues that the Board should void the portion of its October 21,
2004 Order which stays the payment ofthe civil penalty in the Opinion and Order ofSeptember
2, 2004 because there was no motion to stay the penalty.
11.
It is within the Board discretion to determine whether or not the Respondents’ Motion of
September 28, 2004 included a motion to stay the payment ofthe civil penalty in the Opinion and
Order of September 2, 2004.
12.
The Board also has the right to issue an order on its own motion.
13.
The Board clearly has issued an order to stay payment of the penalty imposed in the
opinion and order of September 2, 2004 (Order ofOctober 21, 2004 at 2). Whether the order was
prompted by the Respondents’ motion or on the Board’s motion is academic and any clarification
of the origin ofthe consideratipn ofthe stay would not effect the Board’s right to order the stay.
Wherefore, the Respondents respectfully request that the Board not consider the motion
to void filed by the Complainant or in the alternative, if the Board does consider the motion,
2
either find that the standing order to stay payment ofthe penalty imposed in the September 2,
2004 should not be voided or renew or reissue an order to stay payment ofthe penalty imposed in
the September 2, 2004.
David S2JYl~eill
/ ~
David S. O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, Illinois 60630-1249
(773) 792-1333
3
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached MOTION TO STAY
PAYMENT OF PENALTY UNDER BOARD ORDER OF SEPTEMBER 2, 2004 by hand
delivery on December 1, 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
4~/J
~)1~~L/
Day~d’S.O’NeilY
NOTARY SEAL
SUBSCRIBED AND SWORN TO ME this
/~—~
dayof ______________,20 O~”
~
ALS~1
DENNtS R O’NEILL
Notary Public
oTAI~PIJBUC - STATE OF ILLINOIS ~
~~OMMtsstONEXPIRE309~20~07
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDDEC
STATE OF01ILLINOIS
2004
Pollution Control Board
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
)
PCB 96-98
)
v.
)
Enforcement
)
)
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
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe Pollution
Control Board the MOTION TO STAY PAYMENT OF PENALTY UNDER BOARD ORDER
OF SEPTEMBER 2, 2004, a copy ofwhich is hereby served upon you.
/
Déid S. O~N~i1l
December 1, 2004
David S. O’Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, IL 60630-1249
(773) 792-1333
