ELECTRONIC FILING, RECEIVED, CLERKS OFFICE MARCH 30, 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 .
)
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 I have today filed Complainant's
Response to
Respondents' Motion for
Appeal of Hearing Officer's February 8, 2006 Order, with the
Office of the Clerk of the Illinois Pollution Control Board, true and correct copies of which are
attached hereto and herewith served upon you .
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of the State of Illinois
BY :
MICHAEL C . PARTEE
Assistant Attorney General
Environmental Bureau/North
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
Tel : 312 .814.2069
Fax : 312 .814 .2347
E-Mail : mparteeatg.state . ii us
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE MARCH 30, 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 FOR APPEAL OF
HEARING OFFICER'S FEBRUARY8, 2006 ORDER
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS ("People"), by
LISA MADIGAN, Attorney General of the State of Illinois, and in response to Respondents',
SKOKIE VALLEY ASPHALT CO ., INC.,
EDWIN L . FREDERICK, JR
., and RICHARD J .
FREDERICK, Motion for Appeal of Hearing Officer's February 8, 2006 Order, state as follows
:
RELEVANT PROCEDURAL HISTORY
On February 8, 2006, the Hearing Officer denied Respondents' motion to quash
deposition notices and Respondents' motion to strike the People's second motion for protective
order
. (February 8, 2006 Order at 1
.) The Hearing Officer granted the People's second motion
for protective order and directed counsel to participate in a full and good faith conference
regarding future discovery disputes prior to seeking Board intervention
.
(Id.)
The Hearing
Officer further ordered that, "[i]n
any motion, objection, or other filing related to any discovery
problem, respondents' attorneys must relate the measures taken to resolve the problem with
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE MARCH 30, 2006
complainant's attorneys before the filing of the motion
." (Id.) The Hearing Officer also
scheduled a status conference (held on March 9, 2006) and ruled on Respondents' objections to
the People's discovery requests
. Regarding Respondents' responses to the People's discovery
requests, the Hearing Officer found that these responses (consisting entirely of objections, except
for a single, perfunctory answer) "violate the spirit of the Board's [November 17, 2005] Order"
and specifically noted that Respondents "have provided no argument or case law to defend" their
discovery objections . (Id.)
2.
On February 23, 2006, without a written motion and Board authority,
Respondents filed an interlocutory "Appeal" of the Hearing Officer's February 8, 2006 Order
.
3 .
On March 10, 2006, because Respondents' Appeal violates Board Procedural
Rule 101
.518 (Motions for Interlocutory Appeal from Hearing Officer Orders) and also fails to
present sufficient cause to overturn the Hearing Officer's February 8, 2006 Order, the People
filed a Motion to Deny Respondents' Appeal ("Motion to Deny")
. The People's Motion to Deny
set forth the relevant procedural history of the Hearing Officer's February 8, 2006 Order
.
4.
On March 20, 2006,
40 days after issuance of the Hearing Officer's February 8,
2006 Order, Respondents' attempted to correct the procedural deficiency in their unilateral
Appeal by filing a Motion for Appeal of Hearing Officer's February 8, 2006 Order ("Motion for
Appeal").
APPLICABLE PROCEDURE AND LEGAL STANDARD
FOR APPEALING A HEARING OFFICER'S ORDER
5.
Respondents' Appeal is not a motion
. Rule 101 .518 of the Board's Procedural
Rules, which is not cited in Respondents' Appeal, provides that "[i]nterlocutory appeals from a
ruling of the hearing officer may be taken to the Board
. The Board may consider an
interlocutory appeal
upon the filing of a written motion ." 35 III. Adm
. Code 101 .518 (underline
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE MARCH 30, 2006
added) ; see also People v
. Poland, PCB 98-148, 2001 WL 179835, at * 1 (Feb . 15, 2001)
(A
motion to allow interlocutory appeal is necessary to satisfy the procedural requirement under
Rule 101 .518) .
6 .
Respondents' Motion for Appeal argues that the Board should assume that their
Appeal is actually a Motion for Appeal (Motion for Appeal at
14, p. 2), despite the fact that it
was not filed pursuant to Rule 101 .518 and was not even identified as a motion .
7 .
Respondents further contend that a response to their Appeal "is not allowed under
the Board's Procedural Rules ." (Motion for Appeal at 1110,
p . 3 .) Respondents do not provide
any authority for this contention .
8 .
Finally, Respondents acknowledge that the Board may determine that their
Appeal does not comply with Rule
101 .518 and, therefore, Respondents attempt to correct this
procedural deficiency by moving for an Appeal
instanter. (Motion for Appeal at Jill 14 and 15, p .
3.)
THE BOARD SHOULD DENY RESPONDENTS' MOTION FOR APPEAL
9.
Respondents' Motion for Appeal is an acknowledgement that their Appeal did not
comply with the requirement under Rule
101 .518 for a written motion for appeal
.
10. In addition, Respondents' attempt to comply with Rule
101 .518 is untimely
because it comes 40 days after the Hearing Officer's February 8, 2006 Order . A motion for
appeal 40 days after issuance of the appealed order is untimely by any standard
.
11 .
Additionally, Rule 101 .502(c) of the Board's Procedural Rules (Motions Directed
to the Hearing Officer), provides as follows
:
Unless ordered by the Board, neither the filing of a motion, nor any appeal to the
Board of a hearing officer order will stay the proceeding or extend the time for
performance of any act
. Unless otherwise provided, all hearing officer orders will
remain in effect during the pendency of any appeal to the Board
.
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE MARCH 30, 2006
12.
Since filing their interlocutory Appeal, Respondents have taken the position that
this dispute over the People's Fee Petition, which they created, is entirely stayed pending the
outcome of their Appeal
. On November 17, 2005, the Board ordered Respondents to respond to
the People's discovery requests
. Having not done so by February 8, 2006, the Hearing Officer
then ordered Respondents' attorneys to participate in a full and good faith conference with the
People's attorneys in an attempt to informally resolve any discovery differences
. Respondents
have created another standstill by refusing to participate in discovery or in any conference with
the People in an attempt to informally resolve any remaining differences over discovery pending
the outcome of their Appeal . Pursuant to Rule 101 .502(c), unless ordered by the Board, neither
Respondents' Appeal nor their Motion for Appeal can stay their performance of any act ordered
by the Hearing Officer .
13 .
There is no Board Order staying this proceeding pending the outcome of
Respondents' Appeal, nor is there any reason for a stay based on the rulings contained in the .
Hearing Officer's Order.
14.
Respondents' position that this proceeding is stayed is contrary to Rule
101
.502(c) and substantiates the notion that their Appeal is only intended to work a further delay
in this proceeding .
CONCLUSION
15 .
The Board should deny Respondents' Motion for Appeal on both procedural and
substantive grounds and should affirm the Hearing Officer's February 8, 2006 Order .
Respondents' have violated the letter and spirit of the Board's November 17, 2005 Order, the
Hearing Officer's February 8, 2006 Order, Board Procedural Rules 101 .518 and 101 .520(c), and
the rules of discovery .
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE MARCH 30, 2006
WHEREFORE, the People respectfully request that the Board deny Respondents' Motion
for Appeal and affirm the Hearing Officers' February 8, 2006 Order, 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
BY :
MICHAEL C . PARTEE
Assistant Attorney General
Environmental Bureau/North
188 West Randolph, Suite 2000
Chicago, Illinois 60601
Tel : 312 .814 .2069
Fax
: 312 .814.2347
5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE MARCH 30, 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 for Appeal of Hearing Officer's
February 8, 2006 Order,
were sent by First Class Mail, postage prepaid, to the persons listed on
the Notice of Filing on March 30, 2006
.
BY :
U944
MICHAEL C . PARTEE
It is hereby certified that the above referenced documents were electronically filed with
the following person on March 30, 2006
:
Pollution Control Board, Attn
: Clerk
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
BY :
C
MICHAEL C
. PARTEE
