BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE
STATE
OF
ILLINOIS,)
by
LISA
MADIGAN,
Attorney
General)
of
the State
of
Illinois,)
Complainant,)
V.)
)
PCB
96-98
SKOKIE
VALLEY
ASPHALT
CO.,
INC.,
)
(Enforcement
-
RCRA)
an
Illinois
Corporation,
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
MOTION
TO:
Mr. David
S.
O'Neill,
Esq.
Ms.
Carol
Webb,
Hearing
Officer
Mr. Michael
B. Jawgiel,
Esq.
Pollution
Control
Board
5487
North
Milwaukee
Avenue
1021
North
Grand
Avenue
East
Chicago,
Illinois
60630-1249
P.O.
Box 19274
Springfield,
Illinois
62794-9274
PLEASE
TAKE
NOTICE
that
I have
today
filed
Complainant's
Motion
for
Leave
to
File
Reply
Instanter
to
Respondents'
Responses
to Complainant's
Discovery
Objections
with
the
Office
of the
Clerk
of the
Illinois
Pollution
Control
Board,
a true
and correct
copy of
which
is attached
hereto
and herewith
served
upon
you.
PEOPLE
OF THE
STATE
OF
ILLINOIS,
by
LISA
MADIGAN,
Attorney
General
of
the State
of Illinois
BY
____~aA
MICHAEL
C. PARTEE
Assistant
Attorney
General
Environmental
Bureau/North
188
West
Randolph,
Suite
2001
Chicago,
Illinois
60601
Tel:
(312)814-2069
Fax:
(312)814-2347
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
CERTIFICATE
OF SERVICE
it is hereby certified
that true
and correct
copies of the
Notice
of Motion
and
Complainant's
Motion
for Leave
to File Reply Instanter
to Respondents'
Responses
to
Complainant's
Discovery
Objections,
were
sent by First Class
Mail, postage
prepaid, to the
persons listed
on the Notice of
Filing on December
28, 2005.
BY:C
MICHAEL C.
PARTEE
It is hereby
certified
that the foregoing
were electronically
filed
with
the Clerk of the
Board on December
28, 2005:
Pollution
Control Board,
Attn: Clerk
James R. Thompson
Center
100
West Randolph
Street, Suite 11-500
Chicago,
Illinois 60601
BY
___
MICHAEL C. PARTEE
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF THE
STATE
OF
ILLINOIS,)
by
LISA
MADIGAN,
Attorney
General)
of the
State of
Illinois,)
Complainant,)
V.)
)
PCB 96-98
SKOKIE
VALLEY
ASPHALT
CO., INC.,
)
(Enforcement
-
RCRA)
an Illinois
Corporation,
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.)
COMPLAINANT'S
MOTION
FOR
LEAVE
TO
FILE
A REPLY
INSTANTER
TO
RESPONDENTS'
RESPONSES
TO COMPLAINANT'S
DISCOVERY
OBJECTIONS
Complainant,
PEOPLE
OF THE
STATE
OF ILLINOIS,
by LISA
MADIGAN,
Attorney
General
of the
State
of Illinois,
hereby
moves
the Board
for
leave to
file a reply
instanter
to
Respondents',
SKOKIE
VALLEY
ASPHALT
CO.,
INC., EDWIN
L.
FREDERICK,
JR., and
RICHARD
J. FREDERICK,
(1) Response
to Complainant's
Objections
to
Respondents'
First Set
of Request
for Admission
of Facts
Regarding
Attorneys'
Fees and
Expenses,
(2)
Response
to
Complainant's
Answers
and Objections
to Respondents'
First
Set of
Interrogatories
Regarding
Attorneys'
Fees
and Expenses,
and
(3) Response
to Complainant's
Answers
and
Objections
to
Respondents'
First
Set of
Document
Requests
Regarding
Attorneys'
Fees
and Expenses"
(collectively
referred
to as
"Responses").
In support
of their
motion,
the
People state
as follows:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
1.
On November 17, 2005, the Board issued an order denying Respondents' motion
to strike the People's discovery objections concerning attorneys' fees and costs, and directed
Respondents to respond to the People's discovery objections. (Board's Order at 9 (Nov. 17,
2005).)
2.
On December 19, 2005, Respondents filed their Responses, which contain
irrelevant arguments, as well as outrageous and sanctionable allegations.
3.
The People could be materially prejudiced if not afforded the opportunity to reply
to Respondents' arguments and allegations.
4.
However, Board Procedural Rule 101.500, which covers the filing of motions and
responses, does not give the People the right to reply, except as permitted by the Board or
Hearing Officer to prevent material prejudice.
WHEREFORE, the People respectively request leave to reply instanter. The People's
reply appears as Exhibit A to this motion.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN, Attorney General
of the State of Illinois
BY
_4OV
MICHAEL C. PARTEE
Assistant Attorney General
Environmental Bureau/North
188 West Randolph, Suite 2001
Chicago,
Illinois 60601
Tel: (312)814-2069
Fax: (312)814-2347
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
EXHIBIT
A
TO
COMPLAINANT'S
MOTION
FOR
LEAVE
TO
FILE
A
REPLY
INSTANTER
TO
RESPONDENTS'
RESPONSES
TO
COMPLAINANT'S
DISCOVERY
OBJECTIONS
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE
STATE
OF
ILLINOIS,)
by
LISA
MADIGAN,
Attorney
General)
of
the State
of Illinois,)
Complainant,)
V.)
)
PCB3
96-98
SKOKIE
VALLEY
ASPHALT
CO.,
INC.,
)
(Enforcement
-
RCRA)
an
Illinois
Corporation,
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.)
COMPLAINANT'S
REPLY
TO
RESPONDENTS'
RESPONSES
TO
COMPLAINANT'S
DISCOVERY
OBJECTIONS
NOW
COMES
Complainant,
PEOPLE
OF
THE STATE
OF ILLINOIS,
by LISA
MADIGAN,
Attorney
General
of the
State of
Illinois,
and
in reply
to Respondents',
SKOKIE
VALLEY
ASPHALT
CO., INC.,
EDWIN
L. FREDERICK,
JR.,
and RICHARD
J.
FREDERICK,
(I)
Response
to
Complainant's
Objections
to Respondents'
First
Set
of Request
for Admission
of Facts
Regarding
Attorneys'
Fees and
Expenses,
(2) Response
to Complainant's
Answers
and
Objections
to
Respondents'
First Set
of Interrogatories
Regarding
Attorneys'
Fees
and Expenses,
and
(3) Response
to Complainant's
Answers
and Objections
to Respondents'
First
Set of
Document
Requests
Regarding
Attorneys'
Fees and
Expenses"
(collectively
referred
to as
"Responses"),
states
as follows:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
RELEVANT
PROCEDURAL
HISTORY
1.
On
April 25,
2005, Respondents
served
the People
with discovery
requests
that
purported
to pertain
to
the reasonableness
of
the People's
fee petition
in this
case. Respondents'
discovery
requests
regarding
this
narrow issue
consist
of 43
Requests
to Admit
Facts, 50
Interrogatories
(including
subparts),
24 Document
Requests
and
two deposition
notices.
In
comparison,
Respondents
served
only 16 Interrogatories
and
14 Document
Requests
during
the
entire
course
of discovery
prior to
the hearing
on all
issues in
October 2003.
2.
On May
24, 2005,
the People
served
timely
answers
and objections
to
Respondents
discovery.
The
People's
objections
were set
forth as
"general
objections"
in the
sense that
these objections
pertained
to all of
Respondents'
discovery
requests,
as well
as
"specific
objections"
to individual
discovery
requests.
Also
on May
24, 2005,
the People
sent
Respondents'
attorney
a detailed
letter pursuant
to
Illinois
Supreme
Court Rule
201 (k)
in an
attempt to
informally
resolve
any potential
differences
over
Respondents'
discovery
requests.
3.
Respondents
did
not respond
to the
Rule 201(k)
letter,
but instead
filed motions
to
strike the
Rule 201(k)
letter,
as well
as the People's
discovery
objections
themselves.
4.
On November
17,
2005, the
Board issued
an order
denying
Respondents'
motions
to strike.
5.
The Board
held
that the "People
are
entitled to
file disdovery
objections
under
Sections
101.618(h)
and
101.620(c)
of the Board's
Procedural
Rules,
and raised
proper
objections
thereunder."
(Board
Order at
9 (Nov.
17, 2005))
(underline
added).
6.
The Board
further
held that
it "agrees
with the
assertions
of the
People that
the
respondents
did not adequately
respond to
the People's
objections,
or
attempt to
informnally
resolve
the
dispute before
seeking
Board
intervention."
(Id.)
However,
the Board
allowed
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
Respondents
another
opportunity
to respond
to each
objection
within
30 days
from November
17,
2005.
(Id.)
7.
On
December
19,
2005, Respondents
filed
iheir Responses
with
the Board.
The
Responses
still
fail to adequately
address
the People's
objections,
and
instead,
are another
poorly
disguised
vehicle
for irrelevant,
outrageous
and
sanctionable
allegations
against
the People.
THE
PEOPLE'S
DISCOVERY
OBJECTIONS
SHOULD
BE SUSTAINED
8.
lIn
determining
the reasonableness
of a
fee petition,
it
is well-established
that
the
inquiry
is limited
to,
among
other factors,
"the
nature
of the
cause and
the novelty
and
difficulty
of
the questions
at
issue,
the amount
and
importance
of
the subject
matter,
the
degree
of
responsibility
involved
in
the management
of the
cause, the
time
and labor
required,
the
usual
and
customary
charge
in the
community,
and
the benefits
resulting
the
client."
(Board
Order
at
3-4 (Apr.
7, 2005).)
9.
In
the context
of an
environmental
enforcement
action
before
the
Board,
it is also
well-established
that
a reasonable
hourly
rate
for Assistant
Attorneys
General
is $120.00
to
$ 150.00
per hour,
with
rates assessed
in more
recent cases
at
$150.00
per hour.
See,
e.g., People
v. J & F
Hauling,
Inc.,
02-21, 2003
WL
21129678,
at *2
(May
1, 2003)
(finding
Assistant
Attorney
General's
rate of
$150.00
per hour
to be
reasonable);
People
v.
D 'Angelo
Enterprises
Inc.,
PCB
97-66,
2002
WL
31545432,
at *2.3
(Nov.
7, 2002)
(finding
Assistant
Attorney
General's
rate
of $120.00
per hour
to be
reasonable);
People v.
Panhandle
Eastern
Pipe
Litre
Co.,
PCB
99-191,
2001
WL 1509515,
at *33
(Nov.
15,
2001)
(finding
Assistant
Attorney
General's
rate
of $120.00
per
hour to
be reasonable);
People
v. Spirco
Environmental,
Inc.,
PCB
97-203,
1999
WL
304591,
at *I (May
6,
1999) (finding
Assistant
Attorney
General's
rate
of
$1 20.00
per hour
to be
reasonable).
10.
Therefore,
the
only remaining,
issue
is whether
the
People's
fee petition
comports
with
the time
and
labor required
and
the resulting
benefits
to the
State.
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
11.
The
People
point
out
that
they
have
already
furnished
Respondents
with
all
existing
time
records
in
this
case,
as well
as
curriculum
vitae
for
Assistant
Attorneys
General
seeking
fees.
12.
Rather
than
stick
to
the relevant
issue,
Respondents
ar e pursuing
highly
inappropriate
discovery
requests
(e.g.,
Respondents
asked
the
People
to
disclose
their
attorneys'
take home
pay),
to which
the
People
have
objected
on
numerous
and
legally-recognized
grounds.
13.
Respondents
still
fail
to adequately
respond
to
the People's
discovery
objections.
14.
A representative
example
of
the
inadequacy
of the
Responses
to
the People's
discovery
objections
involves
Respondents'
Request
to
Admit
Fact
Nos.
4,
5, 6, 8,
9, 27,
28,
and
30, Interrogatory
Nos.
16 and
23(i),
and
Document
Request
Nos.
5,
7,
8 and
9, all
seeking
information
regarding
personal
compensation
to
the Assistant
Attorneys
General
in this
case.
For
obvious
reasons,
the
People
object
to
these
requests
on
relevance
and
privacy
grounds.
An
Assistant
Attorney
General's
personal
compensation
has
no bearing
on
the petition
for
fees and
costs.
These
requests
regarding
personal
compensation
are
harassing
and
made
in bad
faith,
and
are not
designed
to resolve
this
dispute
in
a speedy
and
final
manner.
Respondents'
admitted
attempt
to
develop
the
argument
that
an Assistant
Attorney
General's
billing
rate
does
not
reflect
his salary
is
not
only
irrelevant
under
the legal
standard,
but
it is
so vastly
oversimplified
as
to
have
no validity
because
it
fails
to recognize
that
olir
billing
rate
would
not
reflect
our
salary
because
employee
benefits,
employer's
liability
insurance,
overhead
costs
(rent,
office
equipment,
support
staff;
etc.)
and
many,
many
other
distributions
and
costs,
are
also
included
in
that
billing
rate.
Indeed,
as the
People
pointed
out
in their
May
24,
2005
Rule
201
(k) letter
to
Respondents,
no attorney
"takes
home"
his hourly
billing
rate,
so his
salary
is
irrelevant
to the
reasonableness
of his
requested
fees.
Respondents
also ignore
that
a State
government
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
environmental
attorney's billing
rate of
$150.OO is
already well
below that
of a similarly
experienced
environmental
attorney in
private practice
in downtown
Chicago.
The People
further
pointed
out that there
is no precedent
in
any fora for
consideration
of take
home pay
in a
dispute
over the reasonableness
of
a fee petition.
15.
Respondents
fail to
adequately
address this
discovery
objection.
Respondents
incorrectly
respond
that "[tlhe
compensation
of Assistant
Attorney
General's
[sic]
is a
matter of
public
record." (Response
to
Complainant's
Objections
to Respondents'
First
Set of Request
for
Admission
of Facts
Regarding Attorneys'
Fees
and Expenses
at 4.)
Without reliance
on any
authority,
the Respondents
go on to state
that the People's
objection
to disclosing
their
attorneys'
take home
pay is
"disingenuous"
and "almost
too illogical
to even
allow a
response."
(Id.)
This
Response
does not provide
the Board
with any
basis to
overrule the
People's
objection.
Furthermore,
when
viewed in
light of the
fact that Respondents'
attorneys
have
refused to
disclose
their own
billing rate
and take
home pay,
this Response
smacks
of game playing.
16.
The balance
of the Responses
is
equally unresponsive
to the People's
discovery
objections,
but more
than that,
consist of
ad
horninem
attacks. (See,
e.g.,
Response
to
Complainant's
Objecti ons
to Respondents'
First Set
of Request
for Admission
of Facts
Regarding
Attorneys'
Fees and
Expenses at
3 (Respondents
make unfounded
allegations
of
"unethical
behavior,
fraudulent
filings, falsification
of
documents and
intentional
and knowing
violation
of Board procedural
rules,"
which have
no application
to any
remaining
issue in this
case).)
WHEREFORE,
for all of
the foregoing
reasons,
the People
respectfully
request that
the
Hearing Officer
or Board
sustain
their objections
to Respondents'
discovery
requests.
5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
Respectfully
submitted,
PEOPLE OF
THE STATE OF ILLINOIS
by LISA MADIGAN,
Attorney General
of the State of
Illinois
B
Y___ow.*
MICHAEL
C. PARTEE
Assistant Attorney General
Environmental
Bureau/North
188
West Randolph, Suite 2001
Chicago, Illinois
60601
Tel: (312)814-2069
Fax: (312)814-2347
6
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 28, 2005
