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 'FAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution
Control Board the RESPONDENTS' MOTION FOR APPEAL OF HEARING OFFICER'S
ORDER OF FEBRUARY 8, 2006 a copy of which is hereby served upon you .
Dav4S . O'Ne'ill
March 20, 2006
David S . O'Neill, Attorney at Law
5487 N . Milwaukee Avenue
Chicago, IL 60630-1249
(773) 792-1333
PCB 96-98
Enforcement
BEFORE TH I INOIS 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 .,
)
Respondents.
)
RESPONDENTS' MOTION FOR APPEAL OF HEARING OFFICER'S ORDER OF
FEBRUARY 8, 2006
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 file a motion to appeal to the full
body of the Illinois Pollution Control Board the decisions in the Hearing Officer Order of
February 8, 2006 for the above-captioned case and in support thereof states as follows :
PROCEDURAL BACKGROUND
1 .
On February 23, 2006, the Respondents filed an Appeal of the Hearing Officer's Order of
February 8, 2006.
2.
On March 10, 2006, the Complainant file a Motion to Deny Respondents' Appeal of
Hearing Officer's February 8, 2006 Order .
1
ARGUMENT THAT MOTION TO APPEAL WAS PROPERLY FILED IN
ACCORDANCE WITH 35111 . Adm. Code 101.518
3
The Complainant seems to argue in his motion to deny that Respondents' appeal of the
hearing officer's order of February 8, 2006 should be denied simply because the
Respondents failed to state the obvious point that the appeal was being filed pursuant to
the requirements of the Board's Procedural Rule 101
.518 and because the Respondents
did not use the word "motion" in a filing were it is "moving" the Board to take action .
4.
Under the Board's procedural rules, the only way to appeal the decision of a hearing
officer is under the provisions of 35 Ill . Adm. Code 101 .518. Consequently, if the filing
is entitled as an appeal of a hearing officer's order, there should no basis for assuming
that it is anything but a motion for an appeal in accordance with 35 Ill . Adm
. Code
101 .518.
5 .
The Board's Procedural rules define "Motion" as "a request made to the Board or the
hearing officer for the purpose of obtaining a ruling or order directing or allowing some
act to be done in favor of the movant ." (35 Ill . Adm. Code Subpart B 101 .202) . Under
this definition, the filing by the Respondents of February 23, 2006 is clearly a motion in
accordance with the provisions of 35111 . Adm. Code 101 .518 .
6.
In its motion ~o deny, the Complainant cites two c i - s to support its motion . Neither case
contains relevant language . (Complainant's Motion to Deny of March 10, 2006 at 8
.)
7.
In citing People v . Poland (PCB 98-148 at 1), the Complainant attempts to twist the
Board's simple restatement of the language of 35 111 . Adm. Code 101 .518 into a ruling
that "[a]
motion to allow interlocutory appeal is necessary to satisfy the procedural
requirement under Section 101 .518" (Complainant's Motion to Deny of March 10 at 8)
.
No such statement was made by the Board .
8 .
The Respondent also cites the Board's Order of Feb . 3, 1994 in
Zarlenga v . Partnership
Concepts, PCB 92-178 which has absolutely no relevance as to the issue of whether a
movant needs to use the word "motion" in his motion in order for the motion to comply
with the requirements of 35 I11_ Adm . Code 101 .518.
2
9.
In fact, the motions for interlocutory appeal in both the People v . Poland and the Zarlenga
v. Partnership Concepts
are similar to the Respondents' filing of February 23, 2006 in the
statement of the basis for appeal with the exception that the Respondents elected not to
state the obvious facts that the filing was a motion and was filed in accord with 35 Ill
.
Adm. Code 101 .518 .
10.
Complainant's Motion to Deny is a forty (40) page filing that devotes exactly two (2)
paragraphs to the motion to deny . (Complainant's Motion to Deny of March 10, 2006 at
8 .) The remainder of the filing consists of a mischaracterization of the procedural history
of the matter, personal and libelous attacks on the Respondents' counsel and a response to
the Respondent's motion for Interlocutory Appeal of the Hearing Officers Order of
February 8, 2006 which is not allowed under the Board's Procedural Rules .
11 .
The Complainant continuous to file frivolous and baseless motions with the Board with
total disregard for the Board's rules, resulting in a waste of Board resources and an undue
financial and emotional burden on the Respondents . The Complainant's actions also
result in a delay in determining the misconduct of the Complainant's attorneys with
respect to requesting fees and cost in this matter .
12 .
The Complainant's continues to fail to act with professionalism and civility and the
Board continues to tolerate such action without sanctions by the Board .
13 .
Respondents do hereby request that the Board accept the Respondents motion for
interlocutory appeal as filed .
MOTION TO APPEAL THE HEARING OFFICER'S ORDER
OF FEBRUARY 8, 2006,
14.
In the alternative, the Respondents do hereby move the Board for permission to appeal
the Hearing Officer's Order of February 8, 2006 in accordance with the provisions of 35
Ill
. Adm. Code 101 .518 .
15 .
The Respondents request that if the motion to appeal is granted, the Board accept the
appeal as filed by the Respondents with the Board on February 23, 2006 .
3
the Respondents respectfully request that the Board find that the
Respondents filing of
23, 2006 was, in fact, the filing of a motion for an interlocutory
appeal of the hearing officer's ruling in compliance
February
with the requirements of 35 111
. Adm . Code
101 .518 or, in the alternative, respectfully move the Board for leave to appeal to the Board and
accept as argued the appeal to the Board filed on February 23, 2006 to reverse the Hearing
Officer Order of February 8, 2006 and issue an order to grant the Respondents' Motion to Quash
Complainant's`s Deposition Notices i0Respondents
Complainant's Foe Petition of
December ]4,20U5,grant the Respondents' Motion to Strike in Part Complainant's Second
Motion to Quash Deposition Notices and Response to Complainant's
^
Second Motion for
Protective Order ofJanuary 4, 2006 mand deny Complainant's Second Motion for Protective Order
and Response to Respondents' Motion to Quash Deposition Notices .
David S. O'Neill
David S. O'Neill, Attorney at Law
5487 N . Milwaukee Avenue
Chicago,
60630-129
(773) 792-1333
4
NOTARY SEAL
SUBSCRIBED AND SWORN TO ME this
OFFICIAL SEAL
-
NOTARY
MY
COMMISSION
PUBLIC
RITA
-
LOMBARDI
STATE
EXPIRzSOF :09108ILLINOIS107
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached RESPONDENTS' MOTION
FOR APPEAL OF HEARING OFFICER'S ORDER OF FEBRUARY 8, 2006 by hand delivery
on March 20, 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
Michael Parse
Environmental Bureau
Assistant Attorney General
Illinois Attorney General's Office
188 W . Randolph, 20th Floor
Chicago, IL 60601
Ms. Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 N . Grand Avenue East
P . 0. Box 19274
Springfield, IL 62794-9274
