BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    RECEIVED
    PEOPLE
    OF THE STATE OF ILLINOIS,
    )
    CLERKS
    OFFICE
    Complainant,
    )
    AUG
    152005
    )
    PCB 96-98
    STATE OF
    ILLINOIS
    /
    DnIlutiofl 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.,
    )
    Respondents.
    )
    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 MOTION
    FOR PROTECTIVE ORDER AND RESPONSE
    TO RESPONDENTS’ MOTION TO STRIKE
    COMPLAINANT’S OBJECTION TO DISCOVERY AND RESPONDENTS’ MOTION-TO
    COMPEL COMPLAINANT’S RESPONSE TO DISCOVERY REQUEST, a copy of which is
    hereby served upon you.
    -
    Da4fdS.O?4~ill
    August
    15,
    2005
    David
    S.
    O’Neill, Attorney at Law
    5487 N. Milwaukee Avenue
    Chicago, IL 60630-1249
    (773) 792-1333
    BEFORE THE ILLINOIS POLLUTION
    CONTROL BOARD
    PEOPLE OF THE
    STATE OF ILLINOIS,
    )
    II
    Complainant,
    )
    ~
    )
    PCB 96-98
    )
    AUGIS200S
    v.
    )
    Enforcement
    STATE
    OF ILLINOIS
    )
    Pollution Control Board
    )
    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 MOTION FOR
    PROTECTIVE ORDER AND RESPONSE TO RESPONDENTS’ MOTION-TO STRIKE
    COMPLAINANT’S OBJECTION TO DISCOVERY AND RESPONDENTS’ MOTION
    TO COMPEL COMPLAINANT’S RESPONSE TO DISCOVERY REQUEST
    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 move this Board to
    strike the
    Complainant’s Complainant’s Motion for Protective Order and Response to
    Respondents Motion
    to Strike
    Complainant’s Objection to
    Discovery and Respondent’s
    Motion to
    Compel
    Complainant’s Response to Discovery Request and in support thereofstates asfollnws:
    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.
    1
    2.
    The Order states that “the Board
    will grant the respondents additional time
    in order to
    conduct discovery...” (Order of April 7, 2005 at 3).
    In the Conclusion of the Order, the
    Board “grants respondents’
    motion for extension of time and authorizes respondents to
    conduct discovery on the attorney fees issue”. (Id at 4.)
    3.
    On May 24, 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 of Supreme Court Rule 201(k) do not apply to this situation because the
    Complainant was never given leave to
    conduct discovery
    by the Board.
    4.
    The hearing officerwas copied on the May 24, 2005
    letter and consequently, the letter
    was added
    to the record for this matter.
    5.
    On n June
    14, 2005 the Complainant sent another letter to the Respondents.
    6.
    The hearing officer was
    also copied on the June
    14, 2005
    letter and consequently, the
    letterwas added to the record for this matter.
    7.
    On July 6,
    2005,
    the Respondents filed separate motions to
    strike the Complainant’s
    letters ofMay 24,2005
    and June
    14,
    2005 from
    the record.
    8.
    On July 20, 2005,
    the Complainant filed “Complainant’s Motion for Protective Order and
    Response to Respondents’
    Motion to
    Strike Complainant’s Objection to
    Discovery and
    Respondents’
    Motion to Compel
    Complainant’s Response to Discovery
    Request”.
    9.
    The
    Complainant attached copies ofboth the May 24, 2005
    letter and the June
    14,
    2005
    letter to its “Complainant’s Motion for Protective Order and Response to Respondents’
    Motion to
    Strike Complainant’s Objection to
    Discovery and Respondents’
    Motion to
    Compel Complainant’s Response to
    Discovery Request”.
    ARGUMENT TO STRIKE
    10.
    The Board’s procedural rules make no provisions requiring the attachment ofdocuments
    to motions or responses
    to motions filed with the Board.
    II.
    The attachment ofthe letters was not necessary for the filing ofthe response or for the
    arguments presented in the response.
    2
    12
    As previously argued by the Respondents in their July
    6, 2005
    motions to
    strike, the
    letters
    submitted by the Complainant should not
    be made part of the record
    in this case.
    13.
    Unless the May 24, 2005
    letter is stricken, the Complainant will
    be allowed to enter
    information into the record, that
    is seeded with false statements.
    14.
    The Board’s Procedural Rules
    do
    not offer any mechanism for the Respondents andthth
    attorneys to respond to the accusations and statements in the Complainant’s letter of May
    24, 2005.
    15.
    Allowing the uncontested false
    statements in the May 24,
    2005
    letter to
    appear in-the
    record has the potential ofprejudicing the trier of fact in this matter.
    16.
    Unless the June
    14,
    2005 letter is stricken, the Complainant will be allowed to
    enter
    arguments into the record, through procedures
    not allowed
    by the Board’s
    rules.
    17.
    The Board’s Procedural Rules do not offer any mechanism
    for the Respondentsan4their
    attorneys to respond to the arguments in the Complainant’s letter ofJune
    14, 2005.
    18.
    Allowing the Complainant to present these legal arguments in the record has the potential
    of pr~udicing
    the trier of fact
    in this matter.
    19.
    The only reason for the Complainant to attach the letters of May 24, 2005 and June
    14,
    2005
    is to make another attempt to introduce
    false, argumentative and prejudicial
    information into the records through means outside of the Board’s Procedural Rules.
    20.
    Because these improper materials are part ofthe “Complainant’s Response to
    Respondents’ Motions to
    Strike Complainant’s Letters ofMay
    24, 2005
    and June
    14,
    2005
    Regarding Discovery”, the “Complainant’s Motion for Protective Order and
    Response to Respondents’
    Motion to
    Strike Complainant’s Objection to
    Discovery and
    Respondents’
    Motion to Compel
    Complainant’s Response to Discovery Request”iieeds
    to
    be stricken from the record.
    21.
    The “Complainant’s Motion for Protective Order and Response to Respondents’
    MotiDn
    to
    Strike Complainant’s Objection
    to Discovery and Respondents’
    Motion to Compel
    Complainant’s Response to Discovery Request” should also be stricken because the
    Complainant’s motion for protective order is both improperly applied and improperly
    presented and argued.
    3
    22.
    Under Illinois Supreme Court Rule 201, the “court may at any time
    ...
    make a protective
    order, as justice requires, denying, limiting, conditioning or regulating discovery to
    prevent unreasonable annoyance, expense, embarrassment,
    disadvantage or oppression (S.
    Ct. Rule 201
    Subparagraph©)(I).
    23.
    In the matter before the Board, the Complainants have
    failed to present any argument that
    a protective order is required to
    prevent unreasonable annoyance,
    expense,
    embarrassment, disadvantage or oppression.
    24.
    The Complainant fails to
    state with specificity what it is requesting the Board to protect.
    25.
    The Complainant fails to
    state with specificity why a protective order is required.
    26.
    The Complainant fails to state with specificity how it desires the Board to
    enforce the
    protective order.
    27.
    The Complainant mischaracterizes the Respondents’
    discovery requests as “abusive”
    (Complainant’s Motion at 8.) when the request for discovery have been reasonable and
    consistent with the Board’s procedural rules and orders.
    28.
    The
    Complainant has failed to exercise a number of means to object to the Respondents
    discovery requests that would not require a protective order and extensive intervention by
    the Board.
    29.
    The Complainant continues to hinder any efforts by the Respondents to resolve
    issues
    concerning discovery by continuing bad-faith and unproductive practices including
    issuing request for discovery
    not authorized by Board orders, continued attempts to file
    false
    and inflammatory documents with the Board and into the Board’s record and
    making claims that the Respondents refuse to
    participate in required Rule 201
    (k)
    conferences.
    30.
    Because the motion for protective order is not properly applied and not properly_argued,
    it
    is difficult for the Respondents to respond to the niotion and it will be difficulti’orthe
    Board to
    rule on the motion.
    For this reason as well as for the reason previously
    stated
    that improper attachments were included with the filing, the Motion for Protective Order
    should be denied
    3
    1.
    In the alternative, ifthe Board
    disagrees that this motion should be stricken, the
    4
    Respondents respectfully request that the motion for protective order be denied for the
    reasons stated above.
    Wherefore, the Respondents respectfully request the Board to strike the “Complainant’s Motion
    for Protective Order and Response to Respondents’
    Motion to Strike Complainant’s Objection to
    Discovery and
    Respondents’
    Motion to
    Compel Complainant’s Response to
    Discovery Request”
    from the record
    in its entirety or in the alternative deny the Complainant’s
    request for protective
    order.
    ZJJ
    ~t~e’
    t~id
    S. O~eill
    David S. O’Neill, Attorney at Law
    5487 N. Milwaukee Avenue
    Chicago, Illinois
    60630-1249
    (773) 792-1333
    5
    CERTIFICATE OF SERVICE
    I, the undersigned, certifSr that I have served the attached RESPONDENTS’ MOTION TO
    S TRUCE COMPLAINANT’S MOTION FOR PROTECTIVE ORDER AND RESPONSE
    TO
    RESPONDENTS’ MOTION TO STRIKE COMPLAINANT’S OBJECTION TO DISCOVERY
    AND RESPONDENTS’ MOTION TO COMPEL COMPLAINANT’S RESPONSE TO
    DISCOVERY REQUEST by hand delivery on August 15,
    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
    NOTARY SEAL
    SUBSCRIBED AND SWORN TO ME this
    _____________
    NOTMYPUIUC
    -
    STATE~
    tiles
    L
    ‘~‘°~
    day of
    ________,20
    ÔLc

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