RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL
JAN
BOA
092006
PEOPLE OF THE STATE OF ILLINOIS,
Pollution Control
B
a
d
)
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' OBJECTIONS TO AND MOTION TO STRIKE COMPLAINANT'S
MOTION FOR LEAVE TO FILE REPLY INSTANTER TO RESPONDENTS'
RESPONSE TO COMPLAINANT'S DISCOVERY OBJECTIONS
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 Motion for Leave to File Reply Instanter to Respondents' Response to
Complainant's Discovery Objections 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 Respondents filed with the Board and served upon the
Complainant the Respondents' First Request for Admission of Facts regarding Attorneys'
Fees, Costs and Expenses .
4 .
On May 24, 2005, Complainant filed its Answer and Objections to Respondents' First
Request for Admission of Facts regarding Attorneys' Fees, Costs and Expenses .
5 .
In the Order of November 17, 2005, the Respondents were directed to respond to the
Complainant's Answer and Objections to Respondents' First Request for Admission of
Facts regarding Attorneys' Fees, Costs and Expenses within thirty days of the date of the
Order.
6.
As directed by the November 17, 2005 Order, the Respondents were directed to respond
to the Complainant's Answer and Objections to Respondents' First Request for
Admission of Facts regarding Attorneys' Fees, Costs and Expenses .
7 .
On December 28, 2005, the Complainant filed a Motion for Leave to File Reply Instanter
to Respondents' Response to Complainant's Discovery Objections .
OBJECTION TO COMPLAINANT'S MOTION
8 .
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 ."
9.
In its motion, the Complainant falsely maintains that "[t]he People could be materially
prejudiced if not afforded the opportunity to reply to Respondents' arguments and
allegations" but fails to state what the possible material prejudice might be .
10.
It is clearly established by Board rulings that the party claiming a right to file a reply that
is not usually permitted must establish that it will suffer material prejudice if its filing is
not allowed. Illinois v
. Peabody Coal Company PCB 99-134 (June 5, 2003) . The
assertion of material prejudice is not sufficient, absent a statement of what the actual
2
material prejudice may be . City of Kankakee v . County of Kankakee, et. al. PCB 03-125,
03-133, 03-134, 03-135 (May 1, 2003) .
11 .
In addition to the fact that the Complainant fails to make a statement with respect to a
claim of material prejudice, there is no foreseeable basis for any argument that material
prejudice could possibly occur .
12
.
Because the Complainant has failed to meet its burden of stating what material prejudice
would occur and because the Board has no basis to grant the Complainant the right to
reply based on an argument of preventing material prejudice, the Motion for Leave to File
Reply Instanter to Respondents' Response to Complainant's Discovery Objections should
be denied .
MOTION TO STRIKE COMPLAINANT'S MOTION
13.
With the filing of its Motion for Leave to File Reply Instanter to Respondents' Response
to Complainant's Discovery Objections, the Complainant continues to demonstrate its
total disregard and disrespect for the Board's procedures . Under the Board's Procedural
Rules, there was no reason for the Complainant to file its motion instanter . The proper
procedure would have been to file a motion for leave and then file the reply if granted
leave by the Board .
14 .
It is suspected that the Complainant knew that if it had properly followed procedural
rules, the motion to reply would have been denied because there is absolutely no basis for
claiming material prejudice in this matter .
15.
The Complainant was well aware of the requirement to demonstrate material prejudice
under 35 Illinois Administrative Code 101 .500(e) because the Complainant had
previously attempted the same tactic to add unpermitted arguments into the record .
Complainant's Motion of May 7, 2003 . The Board denied that motion because the
Complainant did not demonstrate material prejudice . Board Order of June 5, 2003 at 3 .
15
.
However, by claiming to file the motion instanter, the Complainant has allowed itself an
opportunity to attach its reply brief to the motion and consequently add additional false,
3
inflammatory and prejudicial statements and arguments into the record
.
16. Under the Board's Procedural Rules, the Respondents have no mechanism to address the
attacks that the Complainant has made in its purported Reply to Respondent's response to
Complainant's Discovery Objections.
17.
This tactic is a continuation of the Complainant's effort to add false, inflammatory and
prejudicial statements into the record through extraneous correspondence that are
unnecessarily copied to the hearing officer and other maneuvers .
18.
It is also a continuation of the Complainant's abuse and disregard of the Board's
procedures which have resulted in unnecessary cost and obstruction of justice for both the
Board and the Respondents .
19.
The only possible purpose of these filings is an attempt to exhaust the Respondents'
limited financial resources and to prejudice the trier of fact in the matter before the Board .
20.
Because the Complainant's Motion for Leave to File Reply Instanter to Respondents'
Response to Complainant's Discovery Objections is baseless, fails to adhere to the
Board's Procedural Rules and can only serve to prejudice the trier of fact in this case, the
motion should be stricken from the record
.
WHEREFORE, the Respondents respectfully move this Board to strike the
Complainant's Motion for Leave to File Reply Instanter to Respondents' Response to
Complainant's Discovery Objections or in the alternative to deny the same .
Respectfully submitted,
avid S . Nei11
David S. O'Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, Illinois 60630-1249
(773) 792-1333
4
10
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached RESPONDENTS'
OBJECTIONS TO AND MOTION TO STRIKE COMPLAINANT'S MOTION FOR LEAVE
TO FILE REPLY INSTANTER TO RESPONDENTS' RESPONSE TO COMPLAINANT'S
DISCOVERY OBJECTIONS 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
s '01
.d
m ; id S
S
NOTARY SEAL
SUBSCRIBED AND SWORN TO ME this
g-/-h
OFWQK SEAL
RITA LOMBARDI
MY 6TV
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
V.
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 .
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOTICE OF FILING
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution
Control Board the RESPONDENTS' OBJECTIONS TO AND MOTION TO STRIKE
COMPLAINANT'S MOTION FOR LEAVE TO FILE REPLY INSTANTER TO
RESPONDENTS' RESPONSE TO COMPLAINANT'S DISCOVERY OBJECTIONS, a copy of
which is hereby served upon you .
Dad S. O
eill
January 9, 2006
David S
. O'Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, IL 60630-1249
(773) 792-1333
PCB 96-98
Enforcement
RECEIVEDCLERK'S
OFFICE
JAN 0 9 2006
Pollution
STATE OF
ControlILLINOISBoard
