BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    CLEF~K
    ~
    JUL
    06
    2005
    PEOPLE
    OF THE STATE OF ILLINOIS,
    )
    Complainant,
    )
    STATE
    OF ILLINOIS
    )
    PCB
    96-98
    Ollution Control Board
    )
    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.,
    )
    Respondent
    )
    NOTICE OF FILiNG
    PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution
    Control Board the RESPONDENTS’ MOTION TO STRIKE COMPLAINANT’S LETTER OF
    JUNE
    14, 2005 REGARDiNG DISCOVERY, a copy ofwhich is hereby served upon you.
    ~
    /~
    ~
    Da~k1S.
    O’Neill
    July 7, 2005
    David S.
    O’Neill, Attorney at Law
    5487 N. Milwaukee Avenue
    Chicago, IL 60630-1249
    (773) 792-1333
    BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~E ~
    ~V I! D
    CtE(~3K’~
    O~’~
    PEOPLE OF
    THE STATE OF ILLINOIS,
    )
    JUL
    062005
    Complainant,
    )
    STATE OF ILLINOIS
    )
    PCB 96-98
    Pollution Control Board
    )
    v.
    )
    Enforcement
    )
    )
    SKOKIE VALLEY ASPHALT, CO., INC.,
    )
    EDWIN L.
    FREDERICK, JR., individually and as
    )
    owner and President ofSkokie Valley Asphalt
    )
    Co.,
    Inc., and
    RICHARD
    J.
    FREDERICK,
    )
    individually
    and
    as owner and Vice President of
    )
    Skokie Valley Asphalt Co.,
    Inc.,
    )
    Respondents
    )
    RESPONDENTS’
    MOTION TO
    STRIKE
    COMPLAINANT’S LETTER OF JUNE
    14.
    2005 REGARDING
    DISCOVERY
    The Respondents, SKOKIE VALLEY ASPHALT, CO., INC.,
    EDWIN L. FREDERICK,
    JR., individually and as owner and President ofSkokie Valley Asphalt Co.,
    Inc., and RICHARD
    J.
    FREDERICK,
    individually
    and as owner and Vice President of Skokie Valley Asphalt Co.,
    Inc.., by and through
    its attorney, David S. O’Neill, herein move this Board to
    strike the
    Complainant’s Letter ofJune
    14, 2005
    and in support thereofstates as follows:
    PROCEDURAL HISTORY
    I.
    On April
    7, 2005, the Board issued an Order in the above captioned matter.
    In this Order,
    the Board granted the Respondents’
    motion for extension oftime to allow for limited
    discovery.
    2.
    The Order states that “the Board will grant the respondents additional time in order to
    conduct discovery...” Order ofApril 7, 2005 at 3.
    In the Conclusion ofthe Order, the
    Board
    “grants respondents’ motion for extension of time and authorizes respondents to
    1
    conduct discovery on the attorney fees issue”.
    Id at 4.
    MOTION TO STRIKE
    3.
    On June
    14, 2005, the Complainant sent a letter to the Respondents under the pretense of
    initiating a conference pursuant to Illinois Supreme Court Rule 20 1(k), even though the
    provisions ofSupreme Court Rule 201(k) do not apply to this situation because the
    Complainant was never given leave to conduct discovery by the Board.
    4.
    In the letter, the Complainant presents legal argument
    in an attempt to justify to the Board
    its reasons for not complying with the Board Order of April 7, 2005.
    The Complainant
    also makes unilateral decisions to not comply with the Board’s Order of April 7 without
    leave of the Board to do so.
    5.
    The letter ofJune
    14, 2005 to
    the Respondents was copied to an employee ofthe Board
    —
    Ms.
    Carol
    Webb. Letter at 3.
    6.
    In Section
    101.100 ofthe Board’s Procedural Rules, the term “cx parte communication”
    is defined as
    a:
    “communication between a person who is not a Board Member or Board employee and
    a
    Board
    Member and Board
    employee that reflects on the substance ofa pending Board
    proceeding and that takes place outside the record of the proceeding.
    Communications
    regarding matters ofprocedure and practice, such as the format of pleadings, number of
    copies required, manner ofservice, and status ofproceedings, are not considered cx parte
    communications
    5ILCS
    100/10-60(d).
    For purposes ofthis definition, “Board
    employee” means a person the Board employs on a full-time, part-time, contract or intern
    basis.
    Ill Rules of Civ Proc
    7.
    Ms. Webb is a Board employee and based on the definition in the Procedural Rules, the
    Complainant’s letter of June
    14, 2005 is an cx parte communication.
    8.
    Under Section
    101.114 ofthe Board’s Procedural Rules, Ms. Webb is required to make
    the cx parte communication part ofthe record of the proceeding.
    9.
    Assuming the Complainant’s letter ofJune
    14, 2005
    has or will be
    made part ofthe
    record for this case, the Respondents move to have the letter stricken from the record.
    10.
    There are no proyisions in the Board’s procedural rules, to allow the Complainant
    to
    file
    such a letter.
    2
    I I.
    Unless stricken, the Complainant will be allowed to enter arguments into the record,
    through procedures
    not allowed by the Board’s rules.
    12.
    The Board’s Procedural Rules do not offer any mechanism for the Respondents and
    their
    attorneys to respond to the arguments in the Complainant’s letter of June
    14, 2005.
    13.
    Allowing the Complainant to
    present these legal arguments
    in the record has the potential
    ofprejudicing the trier offact in this matter.
    Wherefore, the Respondents respectfully requestthe Board to
    strike the Complainant’s letter of
    June
    14, 2005 from the record.
    D~1S.O,~N~’11’1
    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 RESPONDENTS’ MOTION TO
    STRIKE COMPLAINANT’S LETTER OF JUNE 14, 2005 REGARDING DISCOVERY by
    hand
    delivery on July 6, 2005, 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~i
    &~//AJJ
    Dayi~
    S. O’N~l1
    NOTARY SEAL
    SUBSCRIBED AND SWORN TO ME this
    ______________
    day of
    _________________,
    20
    ~5
    RITA
    Lopm~,a~
    5
    NOTmYP~.STA~o~fN~S
    S

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