BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
)
No. PCB 96-98
SKOKIE VALLEY ASPHALT, CO.,
INC.,
EDWIN L. FREDERICK,
JR.,
individually and as owner and
President of Skokie Valley Asphalt
Co., mc.,
and
RICHARD
J.
FREDERICK,
individually and as owner and
Vice President of
Skokie Valley Asphalt Co.,
Inc.,
Respondents
R~\yE
D
CLERK’S
OFFICE
JM
18
2C03
STATE OF
~WNO~S
Po~iuUonContro~
Board
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on January
18,
2005,
we filed with
the Illinois Pollution Control Board
Complainant’s Response and
Objection to Respondents’ Motion to Establish Discovery Schedule
and Complainant’s Response and Objection to Respondents’ Motion
for Extension of Time to Respond Under Board Order of Decen~ber
16,
2004,
a true and correct copy of each is attached and hereby
served upon you.
BY:
Respectfully submitted,
LISA
MADIGAN
Attorney General
State of Illinois
MITCHELL L
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
5.
Second Street,
Suite 402
Springfield,
Illinois 62704
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
L~iK~,OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
~
STATE OF ~LLI~OIS
Complainant,
)
POi1Ut~0nControl I3oar~
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.
COMPLAINANT’S
RESPONSE
AND OBJECTION TO•
RESPONDENTS’ MOTION TO ESTABLISH DISCOVERY SCHEDULE
Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, pursuant to
Section 101.500
of the Board’s Procedural Regulations,
35
Ill.
Adm.
Code 101.500, responds and objects to Respondents’
Motion to
Establish a Discovery Schedule.
In response and objection to
Respondents’ 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.1 This
1
People
v.
Skokie Valley Asphalt Co.
et
al.,
PCB 96
-
98
(September
2,
2004)
.
1
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
committed willful, knowing,
or repeated violations in this case.”3
2.
Anticipating the finding that Respondents committed
willful,
knowing, or repeated violations, Complainant sought costs
and attorney fees in their closing argument.
3. Respondents objected to the costs and attorney fees
evidence provided in part because they did not have an opportunity
to respond.4
4.
The Board, however,
allowed the Complainant to rely on the
information presented in the closing argument.5
5.
The Board also allowed Complainant time to file additional
information and Respondents time to Respond to the People’s
request for costs and fees.6
6.
On September
17,
2004,
Complainant filed
“The People of
the State of Illinois Attorney Fees and Costs Petition.”
It
included supporting affidavits for that portion of the attorney
fees and costs the People were seeking.
2
Id.
at
11.
Id.
at
23.
~ Id.
at
24.
Id.
at
6.
6
Id.
2
7. On September.
28th,
Respondents filed a Response generically
objecting to Complainant’s costs and fees petition and asked for
more time so that there could be discovery before an evidentiary
hearing on the matter.
8.
Complainant objected to discovery, more time to respond,
and a hearing on costs and fees.
9. On October
21,
2004,
the Board it would address the matter
again once it was vested of jurisdiction
as a result of the
Petition for Review Respondents filed with the Appellate Court.7
10. On December 16,2004, after Respondents’
appeal was
dismissed,
the Board ruled that it would
“
.
.
.
not hold any
hearings on the issue of attorney’s fees and costs,
but will allow
Respondents additional time to respond.”8
11. The board gave Respondents an additional
28 days,
until
January 13,
2005,
to file any additional response they may have
had to the People’s Petition for Costs and Fees.9
12. Respondents chose not to supplement their initial
response.
L
‘
People v.
Skokie Valley Asphalt Co.
et al.,
PCB 96
-
98
(October 21,
2004)
8
People v.
Skokie Valley Asphalt Co..et,al.,
PCB 96
-
98
(December 16,
2004)
~ Id.
at
3.
3
NO REASON TO SET DISCOVERY SCHEDULE
13. The People already submitted its evidence for costs and
attorneys fees to the Board.
Thus,
there is no need for
Respondents to do any discovery.
14. Respondents chose not to supplement their initial
response with any particular objection to entries in the
attorneys’
time sheets,
or with their own evidence as they were
allowed to do by the Board. Even if Respondents had filed an
additional response,
or provided any evidence of their own,
the
People could not do discovery because there. will not be a hearing
on the issue.
15. The Board already ruled there will not be a hearing on
the costs and fees issue.
.
16.
Obviously, without
a hearing to prepare for,
there is no
need for discovery.
See,
for example, Rule 101.616(c)
of the
Board’s Procedural Rules that explains that
“a11
discovery must
be completed at least 10 days prior to
•the scheduled hearing
.
,,
10
17. And,
the Board’s December
16th
Order did not contemplate
any discovery given the fact that Respondents time to further
respond was limited to 28
days.
See,
for example,
S.Ct.R.
213 (d)allowing 28 days to answer, or object to interrogatories,
10Board’s Procedural Regulations,
35
Ill. Adm.
Code
101.616(c).
4
S.Ct.R.
214 allowing not less than 28 days to produce documents,
and S.Ct.R.
216(c) allowing 28 days to respond to requests for
admissions.
18. There is no need for discovery and to do any at this
point in the litigation would cause unnecessary delay in the
Board’s issuing its final order and needlessly increase the cost
of litigation.
19. As
such,
the People object to Respondents’ Motion to
Establish Discovery Schedule.
WHEREFORE,
Complainant,
the People of the State of Illinois,
respectfully requests this Board deny Respondents’
Motion to
Establish Discovery Schedule and issue the final order in this
case.
PEOPLE OF THE STATE OF ILLINOIS,
ex
rel.
LISA MADIGAN,
Attorney General
of the
State of Illinois,
By:
_________
MITCHEL
L.
COHEN
Assistant Attorney General
Environmental Bureau
188 W. Randolph
St..
-
20th Fl.
Chicago,
IL 60601
(312)
814-5282
I
\MLC\SkokieVa11ey\~~espToMoPorDiscSch.wpd
5
~g~D
J~ANI
c ~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF
Qjj~8
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
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.
COMPLAINANT’S RESPONSE AND OBJECTION TO
RESPONDENTS’ MOTION FOR EXTENSION OF TIME TO
RESPOND UNDER BOARD ORDER OF DECEMBER 16, 2004
Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General
of the State of Illinois, pursuant to
Section 101.500
of the Board’s, Procedural Regulations,
35
Ill.
Adm.
Code 101.500, responds and objects tO Respondents’
Motion for
Extension of Time to Respond Under Board Order of December 16,
2004.
In response and objection to Respondents’ Motion,
the People
state as follows:
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
People v.
Skokie Valley Asphalt
Co.
et al.,
PCB 96
-
98
(September 2,
2004)
1
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
committed willful,
knowing,
or repeated violations
in this case.”3
2.
Based on that last finding and Section 42(f)
of the Act,
the Board gave the People 21 days from the date of the Order
(until September 23,
2004)
to file its Petition for Costs and Fees
and gave Respondents 14 days
(until October
7,
2004)
to respond.4
3. The People filed their Petition in accordance \qith the
Board’s September
2’~-Order, and Respondents filed their “Initial”
Response September
28th~
4. Respondents also asked for more time to conduct discovery
in preparation of some future evidentiary hearing and to respond
to the People’s Petition.
5.
On December
16,
2004,
the Board denied Respondents’
request for additional hearings eliminating further discovery,
but
granted Respondents an additional 28 days,
until January
13,
2005,
to further respond to the People’s Costs and Fees Petition.5
6. Respondents chose not to supplement their initial response
in accordance with the Board’s December ~
Order.
2
~
at
11.
Id.
at
23.
Id.
~ People v.
Skokie Valley Asphalt Co.
et
al.,
PCB 96
-
98
(December
16,
2004)
2
7. Respondents chose not to ask for additional time until
January
10,
2005,
even though Respondents’
first request for
additional time to respond to the Petition was pending since last
September.
8.
Respondents’
request
is without basis,
especially since
there will not be further hearing per the Board Order and the
Order did not contemplate any more discovery.
9. Therefore,
the People object to any further delay by the
granting of Respondents’
Motion for Extension of Time.
The denial
of Respondents’
Motion does not deprive them of the opportunity to
Respond. Respondents already filed a Response last September.
WHEREFORE,
Complainant,
the People of the State of Illinois,
respectfully requests this Board deny Respondents’
Motion For
Extension Of Time To Respond Under Board Order Of December 16,
2004,
and issue the final order in this case.
PEOPLE OF THE STATE OF ILLINtIS,
ex red..
LISA MADIGAN,
Attorney General of the
State of Illinois,
By:
~
MITCHELL L.
COHEN
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.
-
20th Fl.
Chicago,
IL 60601
(312)
814-5282
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3
CERTIFICATE OF SERVICE
I,
MITCHELL COHEN,
an Assistant Attorney General, certify
that on the 18~day of January,
2005,
I caused to be served by
First Class Mail the foregoing Complainant’s Response and
Objection to Respondents’ Motion to Establish Discovery Schedule
and
Complainant’s Response and Objection to Respondents’
Motion
for Extension of Time to Respond Under Board Order .of December
16,
2004,
to the parties named on the attached service list.
Assistant Attorney General
I
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