RECEIVED
CLERK'S OFFICE
JAN 0 9 2006
pS~T~'uATE
Control Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
PCB 96-98
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 of the Clerk of the Pollution
Control Board the RESPONDENTS' MOTION TO STRIKE AND RESPONSE TO
COMPLAINANT'S SECOND MOTION FOR PROTECTIVE ORDER, a copy of which is
hereby served upon you.
David'S. ONel1
January 9, 2006
David S. ONeill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, IL 60630-1249
(773) 792-1333
RECEIVED
CLERK'S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOAJ
0 9 2006
PEOPLE OF THE STATE OF ILLINOIS,
STATE OF ILLINOIS
Pollution Control Board
Complainant,
)
PCB 96-98
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
.
)
RESPONDENTS' MOTION TO STRIKE IN PART COMPLAINANT'S SECOND
MOTION FOR PROTECTIVE ORDER AND RESPONSE TO RESPONDENTS'
MOTION TO OUASH DEPOSITION NOTICES AND RESPONSE TO
COMPLAINANT'S SECOND MOTION FOR PROTECTIVE ORDER
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 object to and move to strike the
Complainant's Second Motion for Protective Order and in support thereof states
as follows :
PROCEDURAL BACKGROUND
1 .
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 of time to allow for limited
discovery.
2 .
The Order specifically 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
1
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 April 25, 2005, the Complainant served the Respondents with deposition notices
demanding to take the depositions of the Respondents' attorneys .
4 .
In the Order of November 17, 2005, the Respondents were directed to respond to the
Complainant's discovery requests within thirty days of the date of the Order
.
5 .
Consistent with the November 17, 2005 Order, the Respondents filed a Motion to Quash
Complainant's Request for Deposition with the Board on December 14, 2005
.
6 .
On December 28, 2005, the Complainant filed the Complainant's Second Motion for
Protective Order and Response to Respondents' Motion to Quash Deposition Notices
.
MOTION TO STRIKE IN PART COMPLAINANT'S SECOND MOTION FOR
PROTECTIVE ORDER AND RESPONSE TO
RESPONDENTS' MOTION TO QUASH DEPOSITION NOTICES
8 .
In what appears to be a continuance of its effort to obviate Board procedures and general
principals of respect for the Board and the rights of the Respondents, the Complainant has
elected to file a motion for a protective' order as part of a response to a motion by the
Respondents
9 .
35 Illinois Administrative Code 101.500(e) states in relevant part :
"The moving person shall not have the right to reply, except
as permitted
by the Board or the hearing officer to prevent material prejudice ."
10 .
In accordance with 35 IAC 101 .500(e), absent leave by the Board, the Respondents are
not allowed to respond to the Complainant's Second Motion for Protective Order and
Response to Respondents' Motion to Quash Deposition Notices because it would be
construed as a reply to the Complainant's response
.
11
.
There is no reason that the Complainant's Second Motion for Protective Order and the
Complainant's Response to Respondents' Motion to Quash Deposition Notices needed to
be in the same filing, and in fact, the common practice is to file replies and motions as
separate documents .
12 .
The Respondents see no potential of prejudice to the Complainant in striking the Second
Motion for Protective Order portion of the Complainant's Second Motion for Protective
Order and the Complainant's Response to Respondents' Motion to Quash Deposition
Notices and requiring the Complainant to file a separate Complainant's Second Motion
for Protective Order at a later date
.
13 .
If and when the Complainant elects to file a Complainant's Second Motion for Protective
Order, the Respondents would be able to respond to the motion in compliance with the
Board's Procedural Rules .
14 .
Therefore, the Second Motion for Protective Order portion of the Complainant's Second
Motion for Protective Order and the Complainant's Response to Respondents' Motion to
Quash Deposition Notices should be stricken to avoid depriving the Respondents their
right to respond to the Complainant's motion
.
OBJECTIONS TO COMPLAINANT'S
SECOND MOTION FOR PROTECTIVE ORDER
15
.
In the alternative, the Respondents ask leave of the Board to present arguments in
objection to the Complainant's second motion for protective order without addressing the
Complainant's response to the Respondents' Motion to Quash
.
16 .
If the Board is of the opinion that the Respondents are subject to the requirements of 35
IAC 500.100(e), the Respondents argue that the Board should permit them to respond
because the Respondents would be materially prejudiced, if for no other reason than they
would be subject to a protective order
.
17 .
In the Order of November 17, 2005, the Board clearly put the responsibility of deciding
the appropriateness and the scope of the discovery in this matter in the control of the
hearing officer. Order of November 17, 2005 at 9
.
18
.
The hearing officer is scheduled to have a status hearing on this matter when the
discovery issues are identified . Id .
3
19 .
Based on the Complainant's deplorable record of honoring agreements, acting in good
faith and filing false and malicious statements in documents filed outside the procedures
established by the Board's rules, and the fact that the letters that the Respondents claim to
be in the spirit of Illinois Supreme Court Rule 201 (k) were actually nothing more than
personnel false and disturbing attacks against the Respondents' attorneys, the
Respondents have no faith in the Complainant acting in a professional and civil manner
in a 201(k) discussion and prefer to deal through the hearing officer
.
20 .
The request for a protective order is no more than a continuation of the Complainant's
continued grand standing and misrepresentation of the actual activities in this case and an
attempt to prejudice the trier of fact as to which party is responsible for interfering with
and delaying the completion of discovery and attempting to hide the misconduct of its
attorneys .
21 .
The Respondents find the Complainant's request for a protective order to be disingenuous
in light of the fact that the Complainant has refused to supply the Respondents most of
the discovery responses requested by the Respondents including many of the same items
that Complainant is claiming that the Respondents must produced for the Complainant
and even though it is the Complainant's claim for fees and cost that are at issue in the
matter .
22 .
If a protective order where to be issued, it would need to apply to both parties
.
23 .
The hearing officer should be allowed to resolve this issue as the hearing officer deems
necessary without interference from a protective order
.
24 .
Consequently, the Complainant's Motion for a protective order should be recognized for
the frivolous filing and posturing that it is and be denied by the Board
.
WHEREFORE, the Respondents respectfully move this Board to strike in part the
Complainant's Second Motion for Protective Order and Response to Respondents' Motion to
Quash Deposition Notices Complainant's Discovery Objections as
it pertains to the request for a
motion for a protective order or in the alternative to deny the same
.
4
David S. O'Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, Illinois 60630-1249
(773) 792-1333
5
Respectfully submitted,
David S .
Bill
day o
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached RESPONDENTS' MOTION TO
STRIKE AND RESPONSE TO COMPLAINANT'S SECOND MOTION FOR PROTECTIVE
ORDER by hand delivery on January 9, 2006 upon the following party :
Mitchell Cohen
Environmental Bureau
Assistant Attorney General
Illinois Attorney General's Office
188 W. Randolph, 20th Floor
Chicago, IL 60601
D
d S. O eill
NOTARY SEAL
SUBSCRIBED AND SWORN TOME this
9.,LA
20
e
6-
4,
1
~I
Notary '
blic
OFFICIAL SEAL
RITA LOMBARDI
NOTARY PUBLIC - STATE OF ILLINOIS
MY CC*11SSION E%PIRES:09m8U7
