STATE OF ILLINOIS

RECEW~D

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLERK’S

DEC 08200k

OFFICE

PEOPLE OF THE STATE OF ILLINOIS, 

)

STATE OF ILUNO~S

Complainant,v.

)

No. PCB 96-98

Pollution COfltVOt Boar

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 Webb,Hear±ng Officer

5487 N. Milwaukee Ave. Illinois Pollution Control Board

Chicago, IL 60630    

600 S. 

2nd

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 MOTION TO RENEW 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 MAIJIGAN, Attorney

General of the 

$~~t~of

I linoi

BY:

~/I4~/ / -

M~CHELL L. COHEN

Assistant Attorney General

Environmental Bureau

188 West Randolph, ~ Floor

Chicago, IL 60601

(312) 814-5282

Dated: December 8, 2004

THIS FILING IS SUBMITTED ON RECYCLED PAPER

RECE WED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 

DEC 082004

STATE OF ILLINOIS

PEOPLE OF THE STATE OF ILLINOIS,

)

Pollution Control Board

Complainant,

)

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

MOTION TO RENEW RESPONDENTS’ MOTION TO STAY

AND/OR EXTEND TIME TO RESPOND TO

COMPLAINANT’S PETITION FOR ATTORNEYS’ FEES A1’SID COSTS

Complainant, PEOPLE OF THE STATE OF ILLINOIS, ex 

rel. 

LISA

MADIGAN,

Attorney General of the State of Illinois, responds to,

Respondents’ “Motion To Renew Respondents’ Motion To Stay And/Or

Extend Time To Respond To Complainant’s Petition For Attorneys’

Fees and Costs” as follows:

1. The Board notes in their October 21, 2004 (“October

Order”), Order that on September 28, 2004, Respondents, Skokie

Valley Asphalt, Inc. (“SVA”), Edwin Frederick, and Richard

Frederick, 

“ . . .

filed a response to and motion to stay and/or

extend time to responds to the petition for attorney fees and

1

costs.” In that same introductory paragraph the Order implies

that the Board denied Respondents’ Motion stating that “tjhe

BOard 

. . .

denies the additional relief requested, by

respondents.”2 If, in fact, the Board already denied Respondents’

Motion, then the People object to renewing the Motion. If the

decision was already made, then Respondents’ Motion to Renew

is a thinly disguised attempt to file a motion for

reconsideration of a Board order” and such motion is

inappropriate.3 Equally important to consider is the fact that

this case is now over nine years old.4 It was tried in October

2003.~The Board issued’ its Opinion and Order in September 2004.6

Under these circumstances, there is no need to go to the time and

expense to “renew” or “reconsider” matters already decided.

2. However, later in the same October Order the Board states

it cannot rule on Respondents’ Motion as well as the People’s

People v. Skokie Valley Asphalt, Co., Inc., Edwin L.

Frederick, Jr., and Richard J. Frederick: PCB 96 

98 (October

21, 2004) at 1.     

‘

2

Id.

~ 35 Ill. Adm. Code 101.520.

~ Initial filing November 3, 1995.

~ October 27 and 28, 2003; see Board’s Docket, or case

activity.

6

See Board’s Docket, or case activity.

Petition for ‘fees and costs.7 “Thus, the Board no longer has

jurisdiction of this case. The Board cannot rule on the Petition

seeking attorney fees and the accompanying issues unless it

regains jurisdiction. 

~

3. If the Board has not ruled on Respondents’ Motion, and

from the language cited above it appears that the Board has’ not,

then Respondents’ Motion to Renew is unnecessary since it, and

the Petition for Costs and Fees, are pending before the Board.

Though the October Order does not specifically state that rulings

on the Motion and Petition are reserved until such time that the

Board regains jurisdiction, there is nothing to suggest that

Respondents’ Motion was dismissed and either needs to be filed

again, or renewed. Respondents do not cite any authority

suggesting that this step, a motion to renew, is necessary or

required in order for the Board to rule on the pending motion,

and the People cannot find within the Board’s procedural

regulations where such a motion might be needed.

4. Respondents surprisingly do not attach a copy of their

Motion as an exhibit, or cite to the Motion so that it can be

adopted by reference. Since the People do not believe such a

Motion to Renew is necessary, the failure to include, or adopt

‘~‘

People v. Skokie Valley Asphalt, Co., Inc., Edwin L.

Frederick, Jr., ‘and Richard J. Frederick: PCB 96 

98 (October

21, 2004) at 2.

Id.

“Respondents’ Initial Response to and Motion to Stay and/or

Extend Time to Respond to Complainant’s Petition for Attorneys’

Fees and Costs” is not an issue.

5. Should, however, a Motion to Renew be required in order

for the Board to consider “Respondents’ Initial Response to and

Motion to Stay and/or Extend Time to Respond to Complainant’s

Petition for Attorneys’ Fees and Costs”, then the People have no

objection to Respondents adopting and incorporating by reference,

the document filed September 28, 2004, without any additional

procedure, or filing.

6. Likewise, in an overabundance of caution, the People by

reference adopt and incorporate “Complainant’s Response to

Respondents’ Motion to Stay and/or Extend Time to Respond to

Complainant’s Petition for Attorneys’ Fees and Costs” filed

October 12, 2004, (as opposed to filing a Motion to Renew

Complainant’s Response) in this Response for the Board’s

consideration.

7. Also, if a Motion to Renew is a necessary step in order

for the Board to consider matters pending before Respondents’

Petition for Review was filed, the People respectfully request

additional time to file such Motion so that the Board may

consider “Complainant’s Petition for Attorneys’ Fees and Costs”

which forms the basis for “Respondents’ Initial Response to and

Motion to Stay and/or Extend Time to Respond to Complainant’s

Petition for Attorneys’ Fees and Costs”.

WHEREFORE, Complainant, People of the State of Illinois,

requests this Board either:

1. Deny Respondents’ Motion to Renew if the Board has

already decided “Respondents’ Initial Response to and Motion to

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

Attorneys’ Fees and Costs” in the October 21, 2004, Order; or

2. If the Board did not decide “Respondents’ Initial

Response to and Motion to Stay and/or Extend Time to Respond to

Complainant’s Petition for Attorneys’ Fees and Costs” in the

October 21, 2004, Order, then rule that such Motion to Renew is

not necessary for the Board to rule on pending matters now that

it has regained jurisdiction in this case; or

3. If such Motion to Renew is 

necessary step for the

Board to consider matters filed before and at the same time as

Respondents filed their Petition for Review, then allow

Respondents to adopt and incorporate “Respondents’ Initial

Response to and Motion to Stay and/or Extend Time to Respond to

Complainant’s Petition for Attorneys’ Fees and Costs” without

further procedure, or filing, accept this Response which

incorpOrates “Complainant’s Response to Respondents’ Motion to

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

Attorneys’ Fees and Costs” for consideration in ruling on

Respondents’ underlying motion, and grant Complainant additional

5

time to file a Motion to Renew Complainant’s Petition for

Attorneys’ Fees and Costs.

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

Assistant Attorney General

Environmental Bureau

188 West Randolph, 2O~Floor

Chicago, IL 60601

(312) 814-5282

CERTIFICATE OF SERVICE

I, MITCHELL L. COHEN, an AssistantAttorney General, do

certify that I caused to be mailed this 

gth

day of December,

2004, the foregoing 

COMPLAINANT’S RESPONSE TO MOTION TO RENEW

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.

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