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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERKS OFFICE
OCT 1 0 2006
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE OF
ILLINOIS
Complainant,
)
Pollution Control Board
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.,
)
Respondent
)
NOTICE OF FILING
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution
Control Board the RESPONDENTS' MOTION FOR SANCTIONS AGAINST
COMPLAINANT, a copy of which is hereby served upon you
.
Da id S.
GO7 eill
October 10, 2006
David S
. O'Neill, Attorney at Law
5487 N. Milwaukee Avenue
Chicago, IL 60630-1249
(773) 792-1333
 
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
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
1
PCB 96-98
RESPONDENTS' MOTION FORSANCTIONS
AGAINST COMPLAINANT
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 its attorney, David S . O'Neill, herein move this Board to impose sanctions
on the Respondents' and in support thereof states as follows :
PROCEDURAL HISTORY
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 discovery
.
2.
The Order 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 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 the "Respondents' First Set of
Interrogatories Regarding Attorneys' Fees, Costs and Expenses", Respondents' First Set
RECEIVED
CLERKS
OCT 10 2006
PoluAon
Control
Co
Board
 
of Document Requests Regarding Attorneys' Fees, Costs and Expenses", "Respondents'
First Request for Admission of Facts Regarding Attorneys' Fees, Costs and Expenses"
and "Notice of Deposition Regarding Attorneys' Fees, Costs and Expenses" .
4.
The discovery request stated that the responses to discovery should be delivered by May
25, 2005 consisted with the requirements of Illinois Supreme Court Rule 213 and the
Board Order of April 7, 2005 .
5.
The Complainant and its attorneys failed to deliver the responses to discovery by the
deadline established by the Illinois Supreme Rule 213 and the Board Order of April 7,
2005 .
6 .
Instead, the Complainant's attorney sent objections to the Respondents' discovery
requests and failed to respond to request to admit facts Nos . 3, 4, 5, 6, 7, 8, 9, 11, 12, 13,
15, 16, 17, 18, 19, 20, 27, 28, 30 and 37, document requests Nos . 5, 6, 7, 8, 9, 10,11, 12,
17 and 21 and interrogatories 16, 21, and 23 .
7.
The Complainant's limited response to the remaining dc .covciy req:~ -St is generally
evasive and non-responsive and subject to objections that misinterpret Board orders or
have no basis in legal standards for objections . These responses have never been
addressed through a 201(k) conference because the issue of the validity of the objections
was never been addressed by the Board .
8 .
Under the pretense of responding to the Respondents' request for discovery, the
Complainant's attorney sent a communication to the Respondents' attorney, in a form and
manner not allowed for by the Board's Procedural Rules stating that they would not be
supplying full response to the Respondents' request for discovery .
9 .
In its Notice of Deposition, the Respondents requested that the Complainant produce Mr .
Mitchell Cohen and Mr
. Bernard Murphy for deposition on June 24, 2005 pursuant to the
provisions of Section 2-1003 of the Illinois Code of Civil Procedure .
10.
The Complainant failed to produce either Mr
. Cohen or Mr . Murphy for deposition on
June 24, 2005 as required under Section 2-1003 of the Illinois Code of Civil Procedure
.
11 .
On July 6, 2005, the Respondents filed a Motion to Strike Complainant's Objections to
Discovery and Motion to Compel Complainant's Response to Discovery Request in
2
 
which the Respondents requested the Board to strike Complainant's objections to
discovery and compel Complainant's responses to discovery and cooperation in
scheduling depositions .
12 .
On July 20, 2005, the Complainant filed a Complainant's Response to Respondents'
Motion to Strike Complainant's Letters of May 24, 2005 and June 14, 2005 Regarding
Discovery and Complainant's Motion for Protective Order and Response to Motion to
Compel Complainant's Response to Discovery Request .
13 . In its Order of November 11, 2005, the Board refused to uphold the People's objection to
discovery. Order at 9 . The Board allowed the Respondents thirty days from the date of
the Order to further respond to each objection . The Board also stated that it would direct
the hearing officer to reserve ruling on the Respondents' Motion to Compel until the time
for additional response is lapsed . Id.
14.
On December 19, 2005 the Respondents filed Respondents' Response to Complainant's
Objections to Respondents' First Set of Request for Admission of Facts Regarding
Attorney's Fees and Expenses; Respondents' Response to Complainant's Answers and
Objections to Respondents' First Set of Interrogatories Regarding Attorneys' Fees and
Expenses; Respondents' Response to Complainant's Objections to Respondents' First Set
of Document Requests Regarding Attorney's Fees and Expenses in which the
Respondents further responded to each objection as ordered by the Board
.
15.
Consequent to the Respondent's filing of its further responses of December 19, 2005, the
Complainant field a barrage of trivial motions in an attempt to avoid responding to the
Respondents' discovery request.
16.
In its order of September 7, 2006, the Board addressed the outstanding motions and
established a detailed pre-hearing schedule to complete discovery in this matter
. Order of
September 7, 2006 at 8. In the Order, the Board stated that new responses to all pending
written discovery should be filed and served by September 21, 2006
. Id.
17.
In the Order of September 7, 2006, the Board clearly stated its intent to strictly enforce
the established timetable to complete discovery by stating
:
"All discovery activities must be completed on or before the dates provided
above."
3
 
and
"The parties are notified that any failure to abide by the schedule set forth will
result in sanctions that may include the barring of testimony of the striking of
pleadings pursuant to Section 101 .800 of the Board's procedural rules ."
MOTION FOR SANCTIONS
18.
The Complainant failed to file and serve new responses to all of the pending written
discovery by September 19, 2005 as ordered by the Board .
19. During a status hearing on October 5, 2006, the Respondents repeatedly requested that the
Complainant comply with the Board's order and file and serve new responses to all of the
pending written discovery that had been requested by the Respondents .
20. The Complainant repeatedly stated to both the Respondents and the Hearing Officer that
it had no intention of complying with the Board Order of September 7, 2006 and would
not be filing and/or serving new responses to the pending written discovery that had been
requested by the Respondents.
21 .
The Respondents are materially prejudiced by the failure of the Complainant to comply
with the Board's Order and to respond to written discovery
.
22.
The Respondents do not have the materials it requires to properly depose the witnesses
for the Complainant .
23 .
The Respondents' opinion witness does not have the information she requires to form her
opinion and prepare her expert report .
24.
The Respondents do not have the information they require to prepare for hearing
.
25.
In accordance with the language in the Board's Order of September 7, 2006, the Board is
required to impose sanctions against the Complainant
. By stating that sanctions "will" be
imposed against a party the party that fails to abide by the schedule, the Board eliminated
any discretion with respect to whether or not sanctions would be imposed
.
26 .
Respondents' argue that ability to properly prepare and argue its position against the
Complainant's Request for Attorneys' Fees and Costs has been so greatly compromised
by the Complainant's blatant disregard of the Board's Order that the sanctions imposed
need to protect the Respondents from being required to do so .
27.
The issue of the responses to the Respondents' requests for discovery is material to the
4
 
claims and defenses asserted by the Respondents and the Complainant.
28.
Illinois Supreme Court Rule 219 (c ) states in relevant part :
If a party, or any person at the instance of, or in collusion with a party,
unreasonably fails to comply with any provision of part E of article II of the rules
of this court (Discovery, Request for Admission, and Pretrial Procedure) or fails
to comply with any order entered into under these rules, the court, on motion, may
enter, in addition to remedies, elsewhere specifically provided, such orders as are
just, including among others, the following :
(v) That, as to claims or defenses asserted in any pleading to which that issue
is material, a judgment by default be entered against the offending party or
that the defending party's action be dismissed with or without prejudice . . .
29 .
In the matter before the Board, the Complainant unreasonably failed to comply with a
Board Order entered into under Supreme Court Rules controlling discovery and the issue
is material to the claims and defenses asserted . Therefore, S . Ct. 219 ©) (v) can be
applied.
30 .
In order lo protect the Respondents against undue prejudice in the disposition of this
matter, this Board should apply S . Ct. Rule 219 (c)(v) to dismiss this action with
prejudice .
31 .
In the alternative, to protect the Respondents against undue prejudice in the disposition of
this matter, the Board should bar any and all testimony and strike and all pleadings
involving issues addressed by the discovery requests of the Respondents in accordance
with Section 101 .800 of the Board's procedural rules .
5
 
Wherefore, the Respondents respectfully request this Board to apply S. Ct. Rule 219
(c)(v) to dismiss this action with prejudice of in the alternative, the Respondents respectfully
request the Board to bar any and all testimony and strike and all pleadings involving issues
addressed by the discovery requests of the Respondents in accordance with Section 101 .800 of
the Board's procedural rules .
i
U/,_
David S . 0 Neill
David S. O'Neill, Attorney at Law
5487 N . Milwaukee Avenue
Chicago, Illinois 60630-1249
(773) 792-1333
6
 
NOTARY SEAL
SUBSCRIBED AND SWORN TO ME this
! 0 -I-1
day of 20 .
U (G
F011-
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached RESPONDENTS' MOTION
FOR SANCTIONS AGAINST COMPLAINANT by hand delivery on October 10, 2006, upon
the following party :
Mitchell Cohen, Esq
and
Mr. Michael Partee, Esq .
Environmental Bureau
Assistant Attorney General
Illinois Attorney General's Office
188 W. Randolph, 20th Floor
Chicago, IL 60601
Da id S. 0 eill
OFFICULSEAL
RITA LOMBARDI
NOTARY PUBLIC -STATE OF ILLINOIS
MY COMMISSION EXPIRES
:Q9 Q 7

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