BEFORE
THE ILLINOIS POLLUTION
CONTROL BOARD
PEOPLE OF
TH-E STATE OF ILLINOIS,
Complainant,
-vs
-
No. 04-7
4832 S. VINCENNES, L.P., an)
(Enforcement- Air)
Illinois limited
partnership, and
BATTEAST
CONSTRUCTION COMPANY,
INC.,
an Indiana corporation,
Respondents.
TO:
See Attached Service List
(VIA ELECTRONIC FiLING)
NOTICE OF FILING
PLEASE
TAKE NOTICE that I have filed
with the Office of the
Clerk of the Illinois
Pollution Control Board by
electronic
filing Complainant's
Motion for Leave to
tile a Reply to
Respondent's Memorandum in
opposition to Complainant's Motion
for
Summary
Judgment, a copy of which
is attached herewith and
served
upon
you.
Respectfully submitted,
PEOPLE
OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General of the
Stype
of Illinois
BY:
ft/
J~4
PAULA BE6KER WHEELER
Assistant Attorney General
Environmental
Bureau
188 W. Randolph St.,
2
0
th
Flr.
Chicago,
IL 60601
(312) 814-1511
Date: November 21,
2005
THIS FILING IS
MAPS
ON
RZCYCLED
PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S Office, NOVEMBER 21, 2005
SERVICE LIST
TO: Mr. Oliver Spurlock,
Esq./Mr. Gregory Miller
Attorneys for Respondent
4832
S. Vincennes, L.P.
9415 South State
Street
Chicago, Il. 60619
Mr. Zachary Hamilton
Attorney
for Respondent
Batteast Const. Co., Inc.
3340 E. Forest View
Trail
Crete, IL. 60417
Mr. Bradley
P. Halloran
Hearing Officer
Illinois Pollution
Control Board
100
W. Randolph, Room 11-S00
Chicago, Il. 60601
ELECTRONIC FILING, RECEIVED, CLERK'S Office, NOVEMBER 21, 2005
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
Complainant,
-vs-
No.
04-7
4832
S.
VINCENNES,
L.P.,
an)
(Enforcement
-
Air)
Illinois
limited
partnership,
and
)r
BATTEAST
CONSTRUCTION
COMPANY,
INC.,)
an
Indiana
corporation,
Respondents.
COMPLAINANT'S
MOTION
FOR
LEAVE
TO
FILE
A
REPLY
TO
'RESPONDENT'S
MEMOR.ANqDUM
IN
OPPOSITION
TO
COMPLAINANT'S
MOTION
FOR
SUMMARY
IJUDGEMENT'
NOW
COMES
the
Complainant,
PEOPLE
OF
THE
STATE
OF
ILLINOIS
("People"),
by
LISA
MADIGAN,
Attorney
General
of
the
State
of
Illinois,
and
requests
that
the
Illinois
Pollution
Control
Hoard
("Board")
grant
leave
to
file
a
Reply
instanter
to
'Respondent's
Memorandum
in
Opposition
to
Complainant's
Motion
for
Summary
Judgment',
pursuant
to
35
Ill.
Adm.
Code
101.500(e).
Said
Reply
is
attached
hereto.
In
support
thereof,
Complainant
states
as
follows:
1.
Section
101.500(e)
of
the
Board
Procedural
Rules,
35
Ill.
Adm.
Code
101.500(e),
provides,
in
pertinent
part,
as
follows:
e)
The
moving
person
will
not
have
the
right
to
reply,
except
as
permitted
by
the
Board
or
hearing
officer
to
prevent
material
prejudice...
ELECTRONIC FILING, RECEIVED, CLERK'S Office, NOVEMBER 21, 2005
2.
Complainant
would
be materially
prejudiced
if not
allowed to
file a Reply
to Respondent
4832
S. VINCENNES
L.P.
("Vincennes")
Memorandum
in
opposition
to Complainant's
Motion
for Summary
Judgment.
WHEREFORE,
Complainant,
PEOPLE OF
THE STATE
OF ILLINOIS,
respectfully
requests
that
the Board grant
the People
leave to
file
instanter
its Reply
to Respondent's
Memorandum
in Opposition
to Complainant's
Motion for
Summary Judgment
against
the
Respondent,
4832
S. VINCENNES,
L.P.
Respectfully
submitted,
PEOPLE OF THE
STATE OF ILLINOIS,
LISA
MADIGAN,
Attorney
General of
the State
of Illinois
By:
)W tt
U/~
P~AULA BECKER
WHEELER
Assistant
Attorney
General
Environmental
Bureau
188 W.
Randolph St.,
20th Fl.
Chicago,
Illinois
60601
(312)
814-1511
-2-
ELECTRONIC FILING, RECEIVED, CLERK'S Office, NOVEMBER 21, 2005
BEFORE
THE ILLINOIS
POLLUTION
CONTROL BOARD
PEOPLE OF THE STATE
OF ILLINOIS,
Complainant,
-vs
-
,~ )
No. 04-7
4832 S.
VINCENNES,
L.P., an)
(Enforcement
-
Air)
Illinois
limited partnership,
and
BATTEAST
CONSTRUCTION
COMPANY,
INC.,)
an
Indiana corporation,
Respondents.
COMPLAINANT'S
REPLY TO
RESPONDENT'S
MEMORANDUM IN
OPPOSITION TO
COMPLAINANT'S
MOTION
FOR SUMMARY
JUDGEMENT
NOW
COMES the Complainant,
PEOPLE
OF THE
STATE OF ILLINOIS
("People"),
by LISA MADIGAN,
Attorney
General
of the State
of
Illinois,
and
states in Reply
to Respondent's
Memorandum
in
Opposition
to Complainant's
Motion
for Summary
Judgment against
4832 S.
VINCENNES,
L.P.(C "Vincennes")
,
as
follows:
PRELIMINARY
BACKGROUND
On October
17, 2005, People
filed its
Motion for Summary
Judgment
against Respondent
Vincennes.
Vincennes
timely filed
its Memorandum
in
Opposition to
Complainant's
Motion for
Summary
Judgement on
November 7, 2005,
which was
received by
the
Complainant
on November
8, 2Q05.
ARGUMENT
Vincennes'
Memorandum
in opposition
is flawed
in many
respects,
but the most
important are
that several
allegations are
made without
supporting
affidavits and
several documents
are
ELECTRONIC FILING, RECEIVED, CLERK'S Office, NOVEMBER 21, 2005
attached without
any authentification
as business records or
otherwise, and,
therefore such assertions
and documents should
be
disregarded by the
Board in its determination
of whether to
grant
the
Complainant's Motion for
Summary Judgment.
However, if the Board
did want to consider
the documents
attached
to Respondent's Memorandum,
although
not properly
presented before
it, the Board
would find that these
documents
also support the Complainant's
Motion for Summary
Judgment.
Respondent's Exhibit
A was part of the Complainant's
Motion also.
Group Exhibit B purports
to be Minutes of
Construction Meetings
held
by the co-Respondent, Batteast
Construction Company,
Inc.
Said documents
were never produced
in discovery or they would
have been attached
to Complainant's Motion
with the proper
authentification. The
documents show that the
presence of
asbestos at the site
was known well before the
Illinois
Environmental Protection
Agency ('Illinois EPA")
made any
inspections. The documents
also show several
people were copied
on these
documents, using initials,
which may or may not have
been Mr.
Miller, the owner's
representative,,
or some other
representative of the
owner.
Respondent's
Exhibit ID purp orts
to be a narrative by a City
of Chicago
inspector. If the Board
decides to consider this
docunient
which is unsupported by affidavit,
it should note that
the writer
states that the
site was not secured
at the time of
-2-
ELECTRONIC FILING, RECEIVED, CLERK'S Office, NOVEMBER 21, 2005
his
inspection, which was
February 5, 2002.
This is days after
the Illinois
EPA was on the premises,
and weeks
after the
asbestos was discovered.
Even after being
instructed by the City
and the Illinois EPA,
the Respondent did
not get it properly
secured.
IRespondent further
argues that Complainant's
supporting
affidavits were
not prepared by experts
showing the presence
of
asbestos.
No experts are necessary
as the Respondent has
clearly
admitted in its Answer
that asbestos was on the
premises.
Respondent also
argues that the Minutes
of the Construction
Meetings,
Meeting #4, (which
are unsupported by
affidavit, and, as
such, are
hearsay)
,
state that
the co-Respondent would
close down
the job as
a result of materials
testing positive for
asbestos.
Actually, the
Minutes show that
the job would be closed
during
the time of the asbestos
abatement. Respondent's
previous
admissions
of fact and deposition
statements show that
workers
were on
the premises at least
through January 31,
2002, and that
the job
was not shut down until
the City of Chicago
issued a stop
work order on
February 5,
2002.
WHEREFORE, Complainant,
PEOPLE OF THE STATE
OF ILLINOIS,
respectfully
states that there
is no genuine issue of
material
fact, only the Respondent's
Vincennes' arguments
that attempt
to
obfuscate the facts,
whether or not the
Board considers the
Respondent's Memorandum
with its attached improper
documents.
-3-
ELECTRONIC FILING, RECEIVED, CLERK'S Office, NOVEMBER 21, 2005
Complainant has clearly
demonstrated Respondent's
violations
of
the Act,
the Board Air Pollution
Regulations, and NESHAPs
regulations.
Complainant, PEOPLE OF
THE STATE OF ILLINOIS
therefore ask that
the Board grant its Motion
for Summary
Judgment, awa rd the relief
requested in its Motion
for Summary
Judgment, and take such
other action as the
Board believes to
be
appropriate
and just.
Respectfully submitted,
PEOPLE OF THE
STATE OF ILLINOIS,
LISA MADIGAN, Attorney
General
of the State
of Illinois
By:
__
_ _
_ _
PAULA
BECKER WHEELER
Assistant Attorney General
Environmental Bureau
188
W. Randolph St., 20th Fl.
Chicago, Illinois
60601
* (312)
814-1511
-4-
ELECTRONIC FILING, RECEIVED, CLERK'S Office, NOVEMBER 21, 2005
CERTIFICATE
OF SERVICE
I,
PAULA BECKER
WHEELER,
an attorney,
do certify
that I
caused
to be served
this 21st
day off November,
2005,
the
foregoing
Complainant's
Motion
for Leave
to File a
Reply to
Respondent's
Memorandum
in Opposition
to
Complainant's
Motion for
Summary Judgment
and Notice
of Filing
upon the
persons listed
on
the attached
Service
List by depositing
same
in an envelope,
by
first class
postage prepaid,
with the
United States
Postal
Service
at 188 West
Randolph Street,
Chicago;
Illinois,
at or
before the
hour of 5:00
P.M.
PAUCLIA
BECKER WHEELER
Date:
November
21, 2005
ELECTRONIC FILING, RECEIVED, CLERK'S Office, NOVEMBER 21, 2005
