ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 12, 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 to Strike Complainant's Motion for Final 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 :
MICHAEL C. PARTEE
Assistant Attorney General
Environmental Bureau/North
188 West Randolph Street, Suite 2000
Chicago, Illinois 60601
Tel : 312.814.2069
Fax: 312.914.2347
E-Mail: mpartee@atg.state.il .us
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, APRIL 12, 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 MOTION FOR FINAL ORDER
Complainant, PEOPLE OF THE STATE OF ILLINOIS ("People"), by LISA
MADIGAN, Attorney General of the State of Illinois, hereby responds to the Respondents'
"Motion to Strike the People's Motion for Final Order ." In support of their response, the People
state as follows :
PROCEDURAL HISTORY
1
.
After a hearing on all issues two and a half years ago, the Board entered an Order
finding willful, knowing or repeated violations of the Illinois Environmental Protection Act and
Board rules, assessing a $153,000 civil penalty, and assessing the People's attorneys' fees and
costs against the Respondents .
(See
Board's Sept. 2, 2004 Order.) The Board further directed
the People to file a petition for attorneys' fees and costs ("Fee Petition"), which was filed on
September 17, 2004, and included sworn affidavits
.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 12, 2006
2 .
On March 28, 2006, the People filed a Motion for Final Order pursuant to Board
Rule 101 .516 because, despite the significant passage of time and Respondents' unprecedented
opportunity to conduct discovery regarding the Fee Petition, Respondents have failed to
substantiate their dispute of the Fee Petition .
3
.
On April 11, 2006, Respondents did not respond to the People' Motion for Final
Order, but instead, filed a Motion to Strike it
.
ENTRY OF A FINAL ORDER IN THIS CASE IS PROPER
4 .
Respondents' Motion to Strike (their ninth motion to strike in ten months) is their
most venomous pleading to date .
5
.
Respondents' Motion to Strike is entirely unresponsive to the People's Motion for
Final Order. Respondents sidestep the People's Motion for Final Order on procedural grounds
.
Respondents unsuccessfully contend that the Motion for Final Order is really an untimely motion
for reconsideration of the Board's April 7, 2005 Order granting Respondents' request for
discovery and a hearing on the Fee Petition . (Motion to Strike at 3 .)
6 .
However, the People's Motion for Final Order cannot be a motion for
reconsideration because there is nothing to consider again . Respondents have already realized
the benefit of the limited discovery allowed under the Board's April 7, 2005 Order . The Board
cannot undue the discovery that was previously authorized and completed pursuant to the
Board's April 7, 2005 Order, nor do the People request this in their Motion for Final Order.
Respondents have also had an entire year to specifically identify any attorney time or costs in the
t
Respondents have, throughout the course of the last year, refused to file "responses" or "replies" to the People's
pleadings. Instead, Respondents have engaged in the questionable practice of moving to strike all pleadings by the
People, at one point even moving to strike the People's response to another of their motions to strike
.
(See
Respondents' Aug. 17, 2005 motion to strike .)
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 12, 2006
Fee Petition that are excessive relative to the corresponding service performed, but they failed to
do so, which was the point of the Motion for Final Order
.
7
.
The People's Motion for Final Order was expressly filed pursuant to Board Rule
101 .516 (Motions for Summary Judgment) .
(See
Motion for Final Order at 1
.) When the party
moving for summary judgment files supporting affidavits containing well-pleaded facts (the
People) and the party opposing the motion (the Respondents) files no counteraffidavits, the
Board must accept as admitted the material facts set forth in the movant's affidavits
.
Beelman
Truck Co. v. Cosentino,
253 III.App.3d 420, 426, 624 N.E.2d 454, 458-58 (5th Dist. 1993)
;
People v. Rogers,
PCB 00-127, 2000 WL 510685, at *2 (Apr. 20, 2000). In the present case,
affidavits containing well-pleaded facts support the People's request for entry of a final order
assessing $100,575.00 in fees and $3,482 .84 in costs against Respondents . At the same time,
Respondents have not filed any counteraffidavits
.
(Id .
at 2 and 7 .)
8
.
Moreover, it is insufficient for the nonmovant (Respondents) to merely identify
issues they could raise at a hearing; a more specific response is required
.
Env. Site Devs., Inc. v.
White and Brewer,
PCB 96-180,1997 WL 735012, at *8 (Nov . 20, 1997). "The nonmovant
must present bona fide facts to withstand a motion for summary judgment
; the nonmovant cannot
hide behind equivocations and conjecture and expect to prevent the entry of summary judgment."
Id.
(underline added). Merely alluding to issues that they could raise at hearing and hiding
behind conjecture is all that Respondents have done in opposition to the People's Fee Petition
.
Respondents' dispute has been "all show and no substance." This is a singular dispute over a -
Fee Petition, yet throughout the lengthy course of this dispute, Respondents have failed to
specifically identify a single hour of attorney time or a single cost that is excessive relative to the
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 12, 2006
corresponding service performed . Respondents even failed to do so when confronted with the
People's Motion for Final Order
.
9 .
Therefore, entry of a final order pursuant to Board Rule 101 .516 is proper.
WHEREFORE, the People respectfully request that the Board deny Respondents' Motion
to Strike, enter a final order assessing $100,575 .00 in fees and $3,482.84 in costs against
Respondents pursuant to Rule 101 .516, and grant 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
t
BY
:
MV(
~
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
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 12, 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 Motion for Final
Order, were sent by First Class Mail, postage prepaid, to the persons listed on the Notice of
Filing on April 12, 2006
.
BY
:
IWA44
4r)"%*
MICHAEL C. PARTEE
It is hereby certified that the above documents were electronically filed with the
following person on April 12, 2006
:
Pollution Control Board, Attn : Clerk
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
MICHAEL C. PARTEE
