BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VERNON and ELAINE ZOHFELD,
Complainants,
vs.
BOB DRAKE, WABASH VALLEY
SERVICE COMPANY, MICHAEL
J.
PFISTER, NOAH D. HORTON, and
STEVE KINDER,
Respondents.
)
)
)
PCB No. 05-193
)
)
)
(Citizen's Enforcement, Air)
NOTICE OF FILING
TO:
Ms. Dorothy M.
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
11-500
Chicago, Illinois 60601
(VIA ELECTRONIC MAIL)
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, Illinois 62794-9274
(VIA ELECTRONIC MAIL)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Illinois Pollution Control Board a RESPONSE TO COMPLAINANTS' MOTION TO
TO
S
Michael
you.
PONDENTS' REPLY TO COMPLAINANTS' RESPONSE TO MOTION
OCEEDINGS on behalf of Respondents, Wabash Valley Service
er, Noah D. Horton and Steve Kinder, a copy of which is herewith served upon
Respectfully submitted,
WABASH VALLEY SERVICE COMPANY,
MICHAEL
J. PFISTER, NOAH D. HORTON,
and STEVE KINDER,
Respondents,
Dated: November 7, 2005
Thomas G. Safley
Gale W. Newton
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
By:/s/ Thomas G. Safley
One of Their Attorneys
THIS FILING SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 7, 2005
CERTIFICATE OF SERVICE
1, Thomas G. Safley, the undersigned, certify that I have served the attached
RESPONSE TO COMPLAINANTS' MOTION TO STRIKE RESPONDENTS' REPLY
TO COMPLAINANTS' RESPONSE TO MOTION TO STAY PROCEEDINGS upon:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
cago, Illinois 60601
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
field, Illinois 62794-9274
via electronic mail on November 7, 2005; and upon:
Stephen F. Hedinger, Esq.
Hedinger Law Office
2601 South Fifth Street
Springfield, Illinois 62703
Thomas H. Bryan, Esq.
Fine & Hatfield, P.C.
520 N.W. Second Street
Post Office Box 779
Evansville, Indiana 47705-0779
by depositing said documents in the United States Mail in Springfield, Illinois, postage
prepaid, on November
7, 2005.
/s/ Thomas G.
Safley
homas G. Safley
WVSC.002/Fil/N0F-C0S
- Response to Motion to Strike
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
VERNON
and ELAINE ZOHFELD,
)
)
Complainants,
)
VS.
)
PCB No. 05-193
(Citizen's Enforcement, Air)
BOB DRAKE, WABASH VALLEY
)
SERVICE COMPANY, MICHAEL
J.
)
PFISTER, NOAH D. HORTON, and
)
STEVE KINDER,
)
Respondents.
)
RESPONSE TO COMPLAINANTS' MOTION
TO STRIKE RESPONDENTS' REPLY TO
COMPLAINANTS' RESPONSE TO MOTION TO STAY PROCEEDINGS
NOW COME Respondents, WABASH VALLEY SERVICE COMPANY,
MICHAEL
J. PFISTER, NOAH D. HORTON, and STEVE KINDER (hereinafter
"Respondents"),
by and through their attorneys, HODGE DWYER ZEMAN, and
pursuant to Section 101.500(d) of the Illinois Pollution Control Board's (`Board")
procedural rules, 35 Ill. Admin. Code ยง 101.500(d), submit this Response to
Complainants' Motion To Strike Respondent's Reply To Complainant's Response To
Motion To Stay Proceedings.
1.
Pursuant to the Board's Order dated September 8, 2005, on September 22,
2005, Respondents filed a Reply to Complainants' Response to Respondents' Verified
Motion to Stay Proceedings (the "Reply").
2.
On October 21, 2005, Complainants filed a Motion to Strike the Reply
("Motion to Strike") purportedly because Respondents failed "to have identified any
misrepresentations or mischaracterizations" in the Reply. Motion to Strike at 2.
For the reasons set forth below, the Board should deny Complainants'
Motion to Strike.
INCOMPLETE OR INACCURATE REPRESENTATION OF
CASE LAW AND INCORRECT APPLICATION OF CASE LAW
4.
In their Response to Respondents' Verified Motion to Stay Proceedings
("Response"), Complainants argue that when deciding a Motion to Stay, "`great weight'
is not to be given to any particular factor, including a Fifth Amendment right, contrary to
Respondents' argument." Response at T2. (Citing to Jacksonville Say. Bank v. Kovack,
326 Ill. App. 3d 1131, 1136, 762 N.E.2d 1138, 1142 (4th Dist. 2002)).
5.
However, in the next paragraph following that cited by Complainants, the
Jacksonville Say. Bank court states: "[c]ourts have indicated that an announced charge
t a defendant weighs heavily in the defendant's favor in deciding whether to stay
civil procee
Jackson
av. Bank at 1137 (citing Sterling National Bank v. A-1
Hotels International Inc., 175 F. Supp. 2d 573, 2001 U.S. Dist. LEXIS 5678, *2
(S.D.N.Y. 2001) (citing cases)).
The defendant in the Jacksonville Sav. Bank matter "had not yet been
charged with a crime, and the record [did] not show that a criminal charge was pending."
Id. at 1137.
7.
In contrast, in the current matter, the Information is an announced charge
that should be weighed heavily in the Respondents' favor in deciding whether to stay the
civil proceedings pending before the Board.
S
ce the very case that Complainants cite for the proposition that "`great
weight'
is not to be given to any particular factor, including a Fifth Amendment
right"
(Response at T2) in fact states that "[c]ourts have indicated that an announced charge
against a defendant weighs heavily in the defendant's favor in deciding whether to stay
civil proceedings," (Jacksonville Sav. Bank at 1137) the Complainants have inaccurately
represented case law regarding the weight to be given to a defendant's Fifth Amendment
rights when a criminal charge has been formally announced against a defendant.
9.
Further, since the Complainants
ccurately represent the state of the case
law regarding the weight to be given to a defendant's Fifth Amendment
a
al charge has been formally announced against such a defendant, the Complainants
apply case law with respect to the Respondents in the matter at hand where the
nal charge against the Respondents has been
ally announced.
MISCHARACTERIZATIONS
10.
First,
onse, Complainants state that Respondents' "own
documentation shows" that no nexus ex
een the Complaint, which is based on
violations of air pollution laws, and the Information which is based on the use of "a
esticide in a manner inconsistent with its labeling." Response at 13.
11.
In actuality, the Complaint and the Information involve the same alleged
incident that (1) occurred on May
8, 2000; (2) in Hamilton County, Illinois; (3) involved
application of agrichemicals; and (4) alleged drifting or blowing of the agrichemicals.
12.
"Nexus" means "a connection or
Dictionary, 1070 Eighth Edition.
often a causal one." Black's Law
13.
The Complaint and the Information are inextricably connected and linked
because they both refer to the exact same set of underlying
facts, and for the
Complainants to claim in the Response that there is no nexus between the Complaint and
the Information is a mischaracterization.
14.
Second, in the Response, Complainants lament that "the facts surrounding
the flagship event in the Complainants' complaint (the May
5, 2000 overdrift) is [sic]
now five years old!" Response at 15. Complainants also state that granting the stay
would cause delay that would soon create problems of proof and stale evidence. Id.
Finally, Complainants state that "this Board should expedite this case for as quick a
resolution on the merits as possible!" Id.
15.
However, Complainants filed their Complaint with the Board five years
and one day after the alleged activities occurred. The Complaint was only saved from
being filed after the end of the statute of limitations by a technical rule that does not allow
a statute of limitations to end on a weekend.
16.
In the Motion to Strike, the Complainants state that there is "virtual
nothing inappropriate about reminding this Board that further delay may cause further
problems." Motion to Strike at 7. (Emphasis added.)
17.
While Complainants argue that there is "virtually nothing inappropriate"
about waiting the full five years to file the Complaint, then claiming that the granting of a
stay would soon create problems of proof and stale evidence, Complainants arguments
are, nonetheless, a mischaracterization that attempts to place the blame for any problems
that may occur due to the five-year delay in filing the Complaint on the Respondents
when. the delay was the act of the Complainants.
18.
In the Motion to Strike, the Complainants take issue with several other
statements made in the Reply. In the interest of brevity, the Respondents stand by all
statements made in the Reply and
19.
to those statements herein by reference.
Notwithstanding the claims made in the Motion to Strike, the Respondents
identified several mi
presentations and mischaracterizations in the Reply, as discussed
herein, that needed to be addressed by the Reply in order to prevent material prejudice to
the Respondents.
WHEREFORE,
for the above and foregoing reasons, Respondents WABASH
VALLEY SERVICE COMPANY, MICHAEL
J. PFISTER, NOAH
D. HORTON, and
STEVE KINDER, respectfully request that the Illinois Pollution Control Board deny the
Complainants' Motion to Strike.
Respectfully submitted,
COMPANY, MICHAEL
J. PFISTER,
. HORTON, and STEVE KINDER
Respondents,
Dated: Nove
r 7, 2005
Thomas
G. Safley
Gale W. Newton
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
lllnois 62705-5776
(217) 523-4900
By:/s/ Thomas G. Safley
One of Their Attorneys
WVSC-002\Filings\Itesponse to motion to strike.doe
