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TERESA
L. SHEPRO,
as Trustee of the)
P~UutitriCo~tro~
E~o~ri
Justice W.
Shepro Trust,
)
and TERESA
L. SHEPRO and
)
FRANK WIEMERSLAGE, as
)
beneficiaries under Trust No.
898, of the)
Chicago Trust Company,
)
Complainant,
)
vs.
)
Case No.
PCB 04-12
)
NEWBY
OIL COMPANY, DAVID E.
)
TRIPP
and JANICE
L. TRIPP,
)
Respondents.
)
COMPLAINANTS’
FIRST SET OF INTERROGATORIES
DIRECTED TO
RESPONDENT, NEWBY OIL COMPANY
TO:
Newby Oil Company
do KINNALLY,
KRENTZ,
LORAN, HODGE & HERMAN,
P.C.
2114 Deerpath
Road, P.O. Box 5030
Aurora,
IL 60507-5030
NOW COME the Complainants, Teresa L. Shepro and Frank Wiemerslage, bytheir
attorneys, Williams
& McCarthy, and propounds the following lnterrogatories, pursuant to
Illinois Supreme Court Rule213, and the Rules ofthe Illinois Pollution Control Board, upon
the Respondent, NewbyOil Company, to be answered in writing and under oath within the
time required
by law based upon information available to Respondent at this time,
and to
be supplemented at
a
later date
as required by Illinois Supreme Court Rule.
INTERROGATORY NO.
1: State your full name,
as well as your current residence
address, date of birth, marital status, driver’s license number and issuing State, and social
security number.
ANSWER:
David Wayne Newby
3101
Fairway Oaks,
DeKaIb,
IL 60115
D.O.B.
12/16/55
Status: Married
N100-1 795-5357 (IL)
Affiant objects to stating
his Social Security Number.
INTERROGATORY NO.2: Pursuant to Illinois Supreme Court Rule 213(f)(1), state
the
name and address of each
lay witness the Respondent intends to call as
a witness at
the trial or any other hearing of this cause,
and for each such witness, identify the subjects
on which the witness will testify.
ANSWER:
David Wayne
Newby,
3101
Fairway Oaks,
DeKalb,
IL 60115.
Will answer to
all
allegations of amended complaint, answer and affirmative defenses.
Chance D.
Newby,
3101
Fairway Oaks, DeKaIb,
IL 60115.
Douglas
D.
Thompson,
P.O.
Box 233, Creston,
IL.
David WithoffKasmanski,
301
E.
Lincoln Highway,
DeKaIb,
IL 60115.
Will testify
concerning conversation with IEPA representative
on or about August
13th,
2003.
INTERROGATORY NO. 3: Pursuant to Illinois Supreme Court Rule 21 3(f)(2), state
the name and address of each independent expert witness the Respondent intends to call
as
a witness at the trial or any other hearing of this cause and for each
such independent
expert witness:
(a)
Identify the subjects on which the witness will testify;
(b)
Identify the opinions the
Respondent expects to illicit.
ANSWER:
Kathy Geyer,
IEPA, Rockford
office.
Ms. Geyer will testify concerning
re: pollution
on
Plaintiff’s property and remedial measures
in
June
and July
1994.
Robert Kyler, Kyler Excavating, Malta, IL 60150.
Mr. Kylerwill testify concerning the
above 1994 incidents.
Gregg
Kazmerski, IEPA,
see answer to No.
10.
INTERROGATORY
NO.
4:
Pursuant to
Supreme Court Rule 213(f)(3),
state
the
name
and address of each controlled expert witness the Respondent intends to call as a
witness at the trial or any other hearing ofthis cause, and for each such controlled witness;
(a)
Identify the subject matter on which the witness will testify;
(b)
Identify the conclusions and opinions of the witness and the bases therefore;
(c)
Identify the qualifications of the witness; and
(d)
Identify any reports prepared
by the witness about the
case.
ANSWER:
(a)
Brad
M.
Burke
P.E.,
principal
and
consultant
of
Enviro-Risk
Consulting
Group, Inc.,
1176 Silverwood Bay,
St. Paul,
MN 55125.
(b)
Based on
many factors and
its
investigation, Enviro-Risk’s conclusions are
set forth
in
the attached Exhibit A.
(c)
Investigation Continues.
(d)
Report
entitled
“Historical
Usage
a
Factual
Investigation
Report”
dated
November 19,
2001.
INTERROGATORY
NO.
5:
State the full
name and
current residence address
of
each
person
who
has
knowledge
or
claims
to
have
knowledge
of any contamination
occurring to
either the
Complainants’
site
or the
Respondent’s
site which
are
subject
matters of this lawsuit.
ANSWER:
See answers to No. 2, 3,
and 4
above.
INTERROGATORY
NO.
6: Other than those already identified, state
the date that
Newby Oil first started
to
store
55
gallon
drums
on
the
property
leased
by
Newby Oil
Company.
ANSWER:
Investigation continues but affiant believes it was sometime in either 1997 or 1998.
INTERROGATORY
NO.
7:
From
the
date Newby
Oil first
started
parking
semi-
trailers
on
property
leased
by
Newby Oil
adjacent to the
Plaintiffs’
property,
state
the
contents
of each
such
semi-trailer and
the dates
in
which
each
such
semi-trailer was
parked on the property adjacent to plaintiffs property.
ANSWER: All dates are presently unknown; investigation continues.
1.
Empty plastic drums which
had contained sodium hypochlorite on Trailer 1.
2.
Diatamaceous
earth powder in
50 lb. bags, swimming pool filter tanks and
miscellaneous pool accessories on Trailer 2.
3.
Full drums of motor oil
and
hydraulic oil
on Trailer 3.
4.
Swimming
pool solar covers and hot tub
covers on Trailer 4.
5.
Empty
1
gallon
and
2
gallon
bottles
used
for
liquid
chlorine
(sodium
hydrochlorate) on Trailer 5.
6.
Empty 55 gallon drums returned by customers, laid
on side.
All drums were
sealed.
Dates of parking are uncertain;
investigation continues.
INTERROGATORY NO.
8:
Have you in your possession any photographs, movies
and/or video tapes taken of the
lot leased
by Newby Oil
Company or the lot owned
by
Complainants?
If so,
state the date or dates on which such
photographs, movies and/or
videotapes were taken, the subject thereof, who now has custody of them, and the name,
address,
occupation and employer of the
person taking them.
ANSWER:
None,
except
for
photos
taken
by the
IEPA of
1994
pollution
by
Plaintiffs
and
photographs
in Enviro-Risk Report; Investigation continues.
INTERROGATORY NO. 9: Have you, or has anyone acting on your behalf, had any
conversations
with
any
person
at
any
time
with
regard
to
the
manner
in
which
the
occurrence
identified
in
the
Plaintiffs’
complaint
occurred,
or
have
you
overheard
any
statements made by any person at any time with
regard to the matters complained of by
Plaintiffs or the manner in which the occurrence complained ofoccurred?
If so, state
the
following:
(a)
The date or dates of such conversations and/or statements;
(b)
The place of such
conversation and/or statements;
(c)
All
persons present for the conversation and/or statements;
(d)
The
matters
and
things stated
by
the
person
in
the
conversation
and/or
statements;
(e)
Whether the conversation was
oral, written and/or recorded? and
(f)
Who
has
possession
of the
statement or notes of the statement if written
and/or recorded?
ANSWER:
Affiant has conversed with
Newby’s insurers, his family, his landlord, his experts, his
attorneys and IEPA representatives.
Affiant does not know dates or exact contents
of conversations, or names of those present.
All conversations were oral, but they
dealt with
a denial of the allegations of the complaint and with affirmative defenses
to the complaint.
INTERROGATORY
NO.
10:
Do you know of any statements made by any person
relating to the occurrence?
If
so,
give the
name and
address of each
such witness, the
date of the statement, and state whether such statement was written and/or oral.
ANSWER:
Mr. Gregg Kazmerski,
IEPA.
No further address
known.
Mr. Burke and Mr. David
both
spoke
to
Mr.
Kazmerski
in
November
or
early
December of
2002.
Mr.
Kazmerski stated orally that he was aware that the vacant lot had been the
site of
illegal
dumping
in
1994
and
that he
observed
no
conditions
at
Newby
Oil
that
supported Plaintiff’s
complaint.
INTERROGATORY NO.
11:
Have/Has the principal(s) of Newby Oil Company ever
been convicted of a misdemeanor involving dishonesty, false statement or a felony?
If so,
state the nature thereof, the date of the conviction and the court and caption in which the
conviction
occurred.
For the
purpose
of
this
interrogatory,
a
plea
of
guilty
shall
be
considered as
a conviction.
ANSWER:
No.
INTERROGATORY NO.
12:
State the contents of each
and every 55 gallon drum
stored
on the
premises
leased
by Newby Oil
Company and the inclusive dates of such
storage.
ANSWER:
See
No. 7.
INTERROGATORY
NO.
13: State the basis for Newby Oil Company’s denial of the
allegations of the Complaint indicating that Newby Oil
did
not
have permission to place
items on Plaintiff’s property, said denial being contained
in Newby Oil Company’s answer.
ANSWER:
David
Newby
will
testify that
there
was
no
physical
touching
of
the
Plaintiffs’
property.
The trailers j~yhave extended over the property line
in
the
air, but Mr.
Newby denies knowledge of even the
intrusion of airspace.
Any drums placed
on
Plaintiffs’
property were so placed
without
his knowledge or consent by unknown
third
parties,
and were
removed as soon
as David
Newby became
aware of the
possibility that the drums might have been on the Plaintiff’s property due to the
lack
of a clearly marked
property line.
INTERROGATORY NO.
14:
Have
you or anyone
at your direction
hired
anyone
other than Enviro-Risk Consulting
Group,
Inc. to perform an investigation into the
environmental contamination
which
is the
subject matter of this
litigation?
If so,
state
the
name and address of each
such
environmental consultant, the
date
so
retained
and whether any report has been obtained from that consultant.
ANSWER:
The
IEPA
may
have
investigated
the purported
contamination
but Plaintiff
has
engage
no one other than Enviro-Risk to date.
INTERROGATORY NO.
15: As to Enviro-Risk Consulting Group, Inc., state the date
said entity was initially retained, the purpose ofsuch retention, the date(s) on which Enviro-
Risk was at the location complained of in the Complaint and the date(s) of any report or
correspondence
prepared
by Enviro-Risk
regarding this matter.
ANSWER:
Retention was
on
or about January
25, 2002
by
Newby.
Enviro-Risk had
been
retained
by National
Farmers
Union,
Newby’s
Insurer,
prior to
November 2001.
Enviro-Risk was at the
site on October 30,
2001
and
may have been at the
site on
other
dates;
investigation
continues.
Enviro-Risk
reported
to
National
Farmers
Union
Insurance Company on
November 19, 2001.
f~
CItd~I\Ai4,~F&
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The undersigned herebyc~r~fi~s
tt1iatat5
ô0~p
~
Deerpath Road, Aurora,
IL 60506, she mailed a
copy of the
foregoing i~s
run
I
wjt?f~’
postage fully
prepaid to:
Illinois Pollution Control
Board
James R. Thompson Center
100 West Randolph Street
Suite
11-500
Chicago,
IL 60601
Clayton
Lindsey
Williams & McCarthy
607 Washington Street
P.O.
Box 339
Oregon, IL 61061-0339
Keith L. Foster
Cliffe, Foster, Corneille & Buick
151
West Lincoln Highway
DeKaIb, IL 60115
David Newby
2270 Oakland Drive
Sycamore,
IL 60178
‘7)
~LL~
~
William C. Murphy
KINNALLY,
KRENTZ,
LORAN,
HODGE & HERMAN, P
2114 Deerpath
Road
P.O.
Box 5030
Aurora,
IL 60507
630-907-0909
64/o1/2@84
@9:47
63@9@7@913
KINNALLY KRENTZ
PAGE
1Ot’ll
çERnFJcATE
OF LAWYER
The
undersigned hereby
certifies
that at
5:00
oclock p.m.
oil
the
______
day
Of
March,
2004,
at
607
Washington
Street,
Oregon,
Illinois, he
mailed
a copy
of the
foregoing
instrument with postage thlly prepaid to:
KINN
ALLY.
KRENTZ, LORAN,
HooGs & HERMAN, P.C.
2114
Deerpath Road, P.O. Box 5030
Aurora, JL 60507-5030
_____________-
Clayton L. Lindsey
Williams & McCarthy
607 Washington
Street
P.O. Box 339
Oregon, IL 6106 1-0339
(815)
732—2 101
Fax:
(815)732-2289
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