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 FILING
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 today
I caused to be filed
Complainant's Response
to
Respondents'
Motion to Strike Complainant's
Second Motion for Protective Order
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:
1~Od
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
E-Mail:
mpartee~atg.state.il us
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 19, 2006
CERTIFICATE
OF SERVICE
it
is hereby certified
that true and correct
copies of the
Notice of Filing
and
Complainant's
Response
to Respondents'
Motion to Strike
Complainant's
Second Motion
for
Protective Order,
were sent
by First
Class Mail, postage
prepaid, to the
persons listed on
the
Notice of Filing
on January 19,
2006.
BY:4MWq~
MICHAEL C.
PARTEE
It is hereby certified
that the foregoing
were electronically
filed
with
the Clerk of the
Board on
January 19, 2006:
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, JANUARY 19, 2006
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
RESPONSE TO RESPONDENTS' MOTION TO STRIKE
COMPLAINANT'S SECOND MOTION FOR PROTECTIVE ORDER
Complainant, the PEOPLE OF THE STATE OF ILLINOIS ("People"), by LISA
MADIGAN, Attorney General of the State of Illinois, hereby responds to Respondents',
SKOKIE VALLEY ASPHALT CO., INC., EDWIN L. FREDERICK, JR., and RICHARD J.
FREDERICK, Motion
to Strike Complainant's Second Motion for Protective Order.
In
support
of their response, the People state as follows:
I .
In addition to the procedural history set forth in the People's (combined) Second
Motion for Protective Order and Response to Respondents' Motion to Quash Deposition
Notices
filed on December 28, 2005, and in light of the Respondents' Motion to Strike the People's
Second Motion for Protective Order, the People contend that the following procedural history is
also relevant:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 19, 2006
a.
In late 2004, Respondents
objected to the People's fee petition
and moved
to stay payment of the civil
penalty assessed by the Board following a
hearing on all
issues
in October 2003.
b.
On January
10, 2005,
now more than a year ago, Respondents
moved for a
discovery schedule regarding the People's fee
petition. Through an order, dated April 7,
2005, the Board authorized
discovery regarding the People's fee petition.
C.
Since commencing discovery
in April 2005, Respondents have
filed
eigt
motions
to strike various discovery issues and pleadings.
(See
Respondents' Motions to
Strike filed on May 18,
2005; July 6, 2005 (three Motions to Strike filed on this date);
August 15, 2005 (two
Motions to Strike filed on this date); and January 9, 2006 (two
Motions
to Strike filed on this date).) Respondents did
not attempt to informally resolve
any of the discovery disputes presented
in their eight motions to strike prior to (or after)
seeking Board intervention. The People have incurred substantial
fees and costs in
having to address the numerous discovery disputes brought to the Board
by Respondents
since April 2005.
d.
During this same time-frame, the People's counsel has written three
letters
in the spirit of Illinois
Supreme Court Rule 201 (k) to Respondents' counsel, dated May
24, 2005; June 14, 2005; and December 15, 2005, all in a good
faith attempt to
expeditiously and informally
resolve discovery disputes without Board intervention.
Respondents' only response to these
letters was to move the Board to strike them. In
addition to these
letters, immediately prior to the last
telephonic
status conference with
the Hearing Officer, the People's counsel
asked Respondents' counsel whether they
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 19, 2006
wished to informally
discuss any discovery disputes. Respondents' counsels'
unequivocal answer was "no."
2.
On January 9, 2006, after the People filed their Second Motion for Protective
Order, Respondents filed two more motions to strike, as mentioned in
Paragraph 1 (c) above.
Respondents' Motion to
Strike the People's Motion for Leave to Reply Instanter to Respondents'
Responses to Complainant's Discovery
Objections is, in effect, a surreply and warrants no
further response from the People. Likewise, Respondents'
Motion to Strike the People's Second
Motion for Protective Order
is ("Motion to Strike"), in effect, a response. However, because
Respondents' Motion to Strike makes new arguments that
have no basis in law or fact, and is
identified as a "motion," the People briefly respond herein.
3.
In their Motion to Strike, Respondents argue that Complainant's
Second Motion
for Protective Order "appears to be a continuance of its effort to obviate
Board Procedures
.
..
(Motion to Strike at
¶
S.)
The only Board Procedure cited in Respondents' Motion to Strike is
that which covers the filing
of a reply under Section 101.500(e) of the Board's Procedural Rules.
(Id.
at¶1 9.)
4.
Respondents argue there is no reason that the People's Second
Motion for
Protective Order should have been combined with their Response to Respondents' Motion to
Quash Deposition Notices.
(Id.
at
¶
I11.)
Respondents argue that, because it is a combined
pleading, it should be denied and filed separately "at a later date."
(Id.
at
¶
12.) Respondents
provide no authority for their
position regarding combined pleadings.
5.
In the alternative, Respondents seek leave under Section 101.500(e) to respond to
the Second Motion.
(Id.
at
¶
15.) Inadequate grounds
for granting such leave under Section
101.500(e) are presented in Respondents' Motion to. Strike. Respondents'
Response also
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 19, 2006
reiterates
many of the same allegations to
which the People previously
sought leave to reply
instanter, and further argues
that, "if a protective order is issued, it would
need to apply to both
parties."
(Id.
at 1j 22.)
6.
In response to Respondents'
Motion to Strike, the
People point out that there is
no
Board or Civil Procedure Rule
prohibiting the combined pleading
complained of. The People
were
also unable to locate any Board or Court
decision in support of Respondents'
position
regarding combined
pleadings. Under the circumstances,
which include the fact that
the
combined
pleading entirely relates to
the same discovery problem, that
the People's Response to
Respondents'
Motion to Quash Deposition Notices
is not a pleading on which relief can
be
granted,
and in light of the number
of frivolous discovery pleadings
filed by Respondents since
April 2005, the People
contend that their combined pleading
was efficient and appropriate.
7.
Although
inadequate grounds for granting
leave to reply under Section
101 .500(e)
are presented in
Respondents' Motion to Strike,
no such leave would appear to be
necessary as a
response (which is not the same as a
reply) is automatically allowed by Board
rules.
(See 35
III.
Adm.
Code 101.500(d).)
S.
Respondents also fail to provide
any authority for denying the People's
Second
Motion for Protective Order in order
to file it at some unspecified "later date"
as Respondents
suggest.
(Motion to Strike at 11 12.) The People's
Second Motion is well-founded and
timely at
this juncture.
9.
Last, the People
agree with the Respondents'
alternative argument that the
protective
order should be reciprocal
and require counsel for both parties
to engage in a full and
good faith attempt to informally
resolve any future discovery dispute
prior to seeking Board
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 19, 2006
intervention. The People have no objection to continuing their attempts to informnally resolve
discovery disputes prior to seeking Board intervention.
WHEREFORE, the People respectfully request that the Board deny Respondents' Motion
to Strike, that the
Board grant the People's Second Motion for Protective Order, that the Board
enter a protective order requiring counsel to engage in a full and good faith attempt to informally
resolve any future discovery dispute prior to seeking Board intervention, and for any further relief
that is fair and just under the circumstances.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN, Attorney General
of the State of Illinois
B
Y:____~4%P
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
E-Mail: mpartee~atg.state.il.us
5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 19, 2006
