ILLINOIS POLLUTION CONTROL BOARD
December 16, 2004
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
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.
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PCB 96-98
(Enforcement – Water)
ORDER OF THE BOARD (by T.E. Johnson):
This matter is before the Board on a number of motions filed by the People of the State of
Illinois (People) and the Skokie Valley Asphalt Co., Inc., Edwin L. Frederick, Jr., and Richard J.
Frederick (respondents). On November 19, 2004, the People filed a motion to void the Board’s
October 21, 2004 order. On December 1, 2004, the respondents filed a response to the People’s
motion, a motion to renew their motion to stay or extend time to respond to the petition for
attorney’s fees and costs, as well as a motion to stay payment of penalty. On December 8, 2004,
the People filed a response to the respondents’ motions.
PROCEDURAL BACKGROUND
On September 2, 2004, the Board issued an order in this matter finding that the
respondents violated the Environmental Protection Act (Act) (415 ILCS 5 (2002)) and Board
regulations. The Board ordered the respondents to pay a civil penalty of $153,000, but withheld
a decision regarding attorney fees and costs until the matter was fully addressed by the parties.
People v. Skokie Valley Asphalt, Co., PCB 96-98, slip op. at 1 (Sept. 2, 2004). On
September 28, 2004, the respondents filed a motion to stay or extend the time to respond to the
People’s petition for attorney fees and costs. Also on September 28, 2004, the respondents filed
a petition to review the Board order with the State of Illinois’ Second District Appellate Court.
See
Skokie Valley Asphalt v. PCB, No. 04-0977 (2nd Dist. 2004).
On October 18, 2004, the Board issued an order finding that the Board no longer had
jurisdiction of the case in light of the pending appeal and could not, therefore, rule on the petition
seeking attorney fees and the accompanying issues. People v. Skokie Valley Asphalt, Co., PCB
96-98, slip op. at 2 (Oct. 18, 2004). The Board only considered that portion of the motion
seeking to stay the payment of penalty, and did stay the payment of the penalty imposed in the
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September 2, 2004 opinion and order. On November 18, 2004, the appellate court dismissed the
respondents’ petition for review.
MOTIONS
In the People’s motion to void the Board’s October 21, 2004 order, the People argue that
the Board lost jurisdiction to change its September 2, 2004 order when the respondents filed a
petition for review with the appellate court, and did not have the authority to grant relief in the
form of staying payment of the civil penalty. Mot. to Void at 9. The People request that the
Board void that portion of its order that alters the September 2, 2004 order and require the
respondents to pay the civil penalty as initially set forth. Mot. to Void at 9-10. In response to
the People’s motion, the respondents assert that the motion is a thinly disguised attempt to file a
motion to reconsider, and because the Board’s October 21, 2004 order is not final should not be
considered by the Board. Resp. at 1-2. Further, in the motion to stay payment of penalty, the
respondents assert that to protect against the possibility that the Board grants the People’s motion
to void, the respondents enter a motion to stay enforcement of the penalty imposed in the
September 2, 2004 order. Mot. to Stay at 2.
In their motion to renew the motion to stay or extend time to respond to the petition for
attorney fees and costs, the respondents assert that with the dismissal of its petition for review by
the Appellate Court, the Board has regained jurisdiction over this matter and may again rule on
the motions by the parties. Mot. at Renew at 2. The respondents ask that the motion to stay or
extend time to respondents to the petition for attorney fees initially filed on September 28, 2004,
be renewed.
Id
. In response, the People ask that the Board deny the motion to renew if the
Board has previously decided the initial motion to stay, or rule that the motion to renew is not
necessary if the Board did not decide the initial motion to stay. Resp. at 5.
DISCUSSION
The People’s motion to void the Board order of October 21, 2004 is denied. As stated in
that order, although Appellate Court jurisdiction attaches when an appeal of a Board decision is
properly made, the Board may consider the portion of the motion seeking to stay the payment of
penalty.
See, e.g.
IEPA v. Pielet Bros. Trading, Inc., PCB 80-185 (Feb. 4, 1982) (granting
motion for stay of order’s provision requiring penalty payment, but denying motion for stay of
order’s provision requiring respondent to cease and desist from violations),
aff’d sub nom
Pielet
Bros. Trading, Inc. v. PCB, 110 Ill. App. 3d 752, 442 N.E.2d 1374 (5th Dist. 1982). The Board
considered respondents’ motion to stay or extend the time to respond to the petition for attorney
fees and costs in part as a motion to stay the civil penalty in light of the appellate review. The
Board has the authority to grant such a motion, and appropriately did so in this case. The motion
to void the Board’s October 21, 2004 order is denied. The stay of the $153,000 civil penalty
imposed in the September 2, 2004 order will remain in effect until the Board issues a final order
in this matter. In that final order, the Board will lift the stay, direct the respondents to pay the
civil penalty and address the issue of attorney fees and costs.
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Because the appellate court has dismissed the appeal, the Board has jurisdiction to rule
on the motion to stay or extend the time to respond to the petition for attorney fees and costs.
Accordingly, the motion to renew is granted. On September 2, 2004, the People were given an
additional 21 days to further plead on the issue of attorney fees and costs, or in the alternate,
allowed to rely on the information already presented on that issue. The People submitted an
additional filing in the form of an attorney’s fees and cost petition on September 17, 2004,
resulting in the respondents’ motion to stay filed on September 28, 2004.
In the motion to stay, the respondents’ assert the need to conduct discovery on the issues
of fees and costs, as well as their right to an evidentiary hearing. The motion to stay is granted
in part. The Board will not hold any hearings on the issue of attorney’s fees and costs, but will
allow the respondents additional time to respond. The respondents are hereby given until
January 13, 2005, 28 days from the date of this order, to respond to the People’s request for
attorney fees and costs.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on December 16, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
