BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    RECEiVED
    ERic S OFFICE
    PEOPLE
    OF THE
    STATE OF ILLINOIS,
    )
    Complainant,
    )
    AUG
    15
    2005
    )
    PCB 96-98
    STATE
    OF ILLINOI
    Pollu~0~-,
    Control 8oa~cj
    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 ofthe Clerk of the Pollution
    Control Board the RESPONDENTS’ MOTION TO STRIKE COMPLAINANT’S RESPONSE
    TO RESPONDENTS’ MOTION TO STRIKE COMPLAINANT’S LETTER OF MAY 24, 2005
    AND JUNE
    14, 2005 REGARDING DISCOVERY, a copy of which is hereby served upon you.
    ~Y
    &~~J/
    DavI~.O’Neill
    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,
    )
    Complainant,
    )
    )
    PCB96-98
    RECEIVED
    )
    ~.ERx
    S
    OFFICE
    v.
    )
    Enforcement
    AUG
    15200
    STATE OF ILLINOIS
    SKOKIE VALLEY ASPHALT, CO.,
    INC.,
    )
    Pollution Control Board
    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.
    )
    RESPONDENTS’ MOTION TO STRIKE
    COMPLAINANT’S RESPONSE TO RESPONDENTS’ MOTION TO STRIKE
    COMPLAINANT’S
    LETTER OF MAY 24, 2005 AND
    JUNE
    14,2005 REGARDING
    DISCOVERY
    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 Response to Respondents’
    Motion to Strike Complainant’s Letter ofMay
    24,
    2005 and June
    14,
    2005
    Regarding Discovery and in support thereof states 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 limitetl
    discovery.
    -
    2.
    The Order states that “the Board will grant the respondents
    additional time in order to
    1
    conduct discovery...” Order of April 7,2005 at 3.
    In the Conclusion of the Order, the
    Board “grants respondents’
    motion for extension oftime 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 201(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 officer was 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
    letter was added to the record for this matter.
    7.
    On July
    6, 2005, the Respondents filed separate motions to
    strike the Complainant’s
    letters of May 24,2005 and
    June 14,
    2005
    from the record.
    8.
    On July 20, 2005,
    the Complainant filed “Complainant’s Response to
    Respondents’
    Motions to
    Strike Complainant’s Letters ofMay 24, 2005
    and June
    14, 2005
    Regarding
    Discovery”.
    9.
    The Complainant attached copies of both the May
    24, 2005
    letter and the June
    14, 2005
    letter to its “Complainant’s Response to Respondents’
    Motions to Strike Complainant’s
    Letters of May 24,2005 and June
    14,
    2005
    Regarding Discovery”.
    ARGUMENT TO STRIKE
    10.
    The Board’s procedural
    rules make no provisions
    requiring the attachment of documents
    to motions or responses
    to motions filed with the Board.
    -
    11.
    The attachment ofthe
    letters was
    not necessary for the filing ofthe response or for the
    arguments presented in the response.
    12
    As previously argued by the Respondents in their July 6, 2005 motions to strikerth.e-
    letters
    submitted by the Complainant should not be made part of the record in this case.
    2
    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
    and their
    attorneys to respond to the accusations and statements in the Complainant’s letter ofMay
    24, 2005.
    15.
    Allowing the uncontested false statements in the May 24, 2005 letter to appear in the
    record has the potential of prejudicing 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 Respondents and their
    attorneys to respond to the arguments in the Complainant’s letterof June
    14,
    2005.
    1 8.
    Allowing the Complainant to present these
    legal arguments in the record has the potential
    of prejudicing 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 Response to
    Respondents’ Motions to
    Strike Complainant’s Letters of May 24, 2005 and June
    14,
    2005 Regarding Discovery”
    needs to be
    stricken from the record.
    3
    Wherefore, the Respondents respectfblly request the Board to strike the “Complainant’s
    Response to Respondents’ Motions to
    Strike Complainant’s Letters ofMay 24, 2005 and June
    14, 2005
    Regarding Discovery” from the record in its entirety.
    DacidS.O’I9eiff
    .
    David
    S.
    O’Neill, Attorney at Law
    5487 N. Milwaukee Avenue
    Chicago, Illinois 60630-1249
    (773) 792-1333
    4
    CERTIFICATE
    OF SERVICE
    I, the undersigned, certi& that I have served the attached RESPONDENTS’ MOTION TO
    STRIKE COMPLAINANT’S RESPONSE
    TO RESPONDENTS’ MOTION TO STRIKE
    COMPLAINANT’S LEI1TER OF MAY 24, 2005 AND JUNE
    14,2005 REGARDING
    DISCOVERY 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
    4jj
    qLj/
    Da’~Ad’S.O’Ne’
    NOTARY SEAL
    SUBSCRIBED AND SWORN
    TO ME this
    /~!5~L4~
    day of
    ta~_ca~d_t~,20
    o~C
    otary Public
    ~FIClAL
    SEAL
    RITALQ~J~(
    NOTARYPtS~.STATE W liMOS
    MY~PflI
    EflSa7
    -

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