RECEIVED
CLERK’S OFFICE
DEC
052005
STATE OF ILLINOIS
Pollution Control Board
OFFICE OF THE ATTORNEY GENERAL
STATE OF
ILLINOIS
Lisa Madigan
ATtORNEY GENERAL
November 30,
2005
The Honorable
Dorothy Gunn
Illinois
Pollution Control
Board
James
R.
Thompson
Center,
Ste.
11-500
100 West
Randolph
Chicago,
Illinois 60601
Re:
People
v.
Midwest Grain
Products of Illinois,
Inc.
PCB No.
97-1 79
Dear
Clerk Gunn:
Enclosed for filing please
find
the original
and
five copies
of
a
NOTICE
OF FILING
and
COMPLAINANT’S
MOTION
FOR
A
ONE-DAY
EXTENSION
OF
THE
DEADLINE
FOR
ITS
RESPONSE
TO DEFENDANT’S
MOTION TO STRIKE
INTERROGATORIES AND
FOR LEAVE
TO
FILE
RESPONSE
INSTANTER
in
regard
to
the
above-captioned
matter.
Please file
the
original and
return
a file-stamped
copy to
me
in the enclosed, self-addressed
envelope.
Thank you
for your cooperation and
consideration.
Very truly yours,
f2~~-~
C
Jane
E.
McBride
Environmental
Bureau
500
South Second
Street
Springfield,
Illinois 62706
(217)
782-9031
JEM:lh
Enclosures
500 South Second
Street, Springfield, Illinois
62706
•
(217) 782-1090
•
TTY: (217) 785-2771
•
Fax:
(217) 782-7046
100
West
Randolph Street,
Ghicago,
Illinois
60601
•
(312)
814-3000
•
TrY:
(312) 814-3374
•
Fax: (312)
814-3806
1001
East Main,
Carbondale,
Illinois
62901
•
(618) 529-6400
•
Tfl:
(618) 529-6403
•
Fax:
(618) 529-6416
RECEIVED
BEFORE THE
ILLINOIS
POLLUTION
CONTROL BOARD
CLERICS
OFFICE
PEOPLE OF THE STATE OF
)
DEC
052005
ILLINOIS,
)
STATE OF ILUNOI$
Pollution
Control
Board
Complainant,
v.
)
PCB NO.
97-1 79
(Enforcement)
MIDWEST
GRAIN
PRODUCTS
OF
ILLINOIS, INC.,
an illinois corporation,
Respondent.
NOTICE OF FILING
To:
Patrick
M.
Flachs
John Collins
Husch
&
Eppenberger
LLC
190
Carondelet Plaza,
Ste.
600
St.
Louis,
MO
63105
PLEASE TAKE
NOTICE that on this date
I
mailed for filing with
the Clerk of the Pollution
Control
Board of the State
of Illinois COMPLAINANT’S MOTION
FOR A ONE-DAY EXTENSION
OF
THE
DEADLINE
FOR
ITS
RESPONSE
TO
DEFENDANT’S
MOTION
TO
STRIKE
INTERROGATORIES AND
FOR LEAVE TO
FILE RESPONSE
INSTANTER, copies of which are
attached
hereto and herewith
served
upon
you.
Respectfully submitted,
PEOPLE OF THE
STATE
OF ILLINOIS
LISA MADIGAN,
Attorney General
of
the
State of
Illinois
MATTHEW J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:~?~
£
_-:~~
~
-
/
JANE
E.
McBRIDE
Assistant Attorney General
Environmental
Bureau
500
South
Second Street
Springfield,
Illinois 62706
217/782-9031
Dated:
November 30, 2005
CERTIFICATE OF SERVICE
I
hereby certify
that
I
did
on November 30,
2005,
send
by
First Class
Mail, with
postage
thereon fully
prepaid,
by depositing
in
a United
States
Post Office
Box a true and correct copy
of the following
instruments entitled
NOTICE
OF
FILING
and
COMPLAINANT’S MOTION
FOR
A ONE-DAY EXTENSION
OF THE
DEADLINE
FOR ITS
RESPONSE TO DEFENDANT’S
MOTION TO STRIKE
INTERROGATORIES AND
FOR LEAVE TO
FILE
RESPONSE
INSTANTER
To:
Patrick M.
Flachs
John
Collins
Husch
&
Eppenberger
LLC
190
Carondelet Plaza,
Ste.
600
St. Louis,
MO 63105
Fax (314) 480-1505
and the original
and five copies
by facsimile and
also
by First Class
Mail with
postage thereon
fully prepaid of
the same
foregoing
instrument(s):
To:
Dorothy
Gunn, Clerk
Illinois
Pollution
Control
Board
James
R.
Thompson Center
Suite
11-500
100 West Randolph
Chicago,
Illinois 60601
Fax (312)
814-3669
A copy was
also
sent by
First Class
Mail with postage thereon fully prepaid
to:
Carol Webb
Hearing
Officer
Illinois
Pollution
Control Board
1021
North
Grand
Avenue
East
Springfield,
IL
62794
Fax (217)
524-8508
,.-
9~
E.
McBRIDE
Assistant Attorney General
This filing
is
submitted
on
recycled paper.
R~ElVED
BEFORE THE
ILLINOIS
POLLUTION
CONTROL
BOARD
DEC
05
2005
TAZEWELL COUNTY,
ILLINOIS
STATE OF
ILUNOIS
PEOPLE OF THE STATE OF ILLINOIS
)
olfution Control Board
Complainant
PCB
No.
97-1 79
v.
MIDWEST GRAIN
PRODUCTS OF
ILLINOIS,
INC.,
an
Illinois corporation
Respondent
COMPLAINANT’S
MOTION
FOR A
ONE-DAY EXTENSION
OF THE
DEADLINE
FOR
ITS
RESPONSE TO DEFENDANT’S
MOTION TO
STRIKE
INTERROGATORIES
AND FOR LEAVE TO
FILE RESPONSE
INSTANTER
NOW
COMES Complainant, PEOPLE OF THE
STATE OF ILLINOIS,
and
hereby
moves for
a one-day extension
of the deadline for filing Complainant’s
response to
Defendant’s
motion
to
strike interrogatories and
requests
leave to file
Complainant’s
response
instanter.
In
support
of its
motion,
Complainant states
as follows:
1.
In
its
November
15,
2005 Order,
the
Hearing
Officer set
a filing deadline of
November 29, 2005 for Complainant’s
response to
Respondent’s
motion
to
strike
Complainant’s interrogatories.
2.
Complainant prepared
a response for filing on
November 29, 2005,
but there
was
a
one day delay in obtaining appropriate
client agency review
of the filing due
to agency
counsel’s work travel
schedule.
Complainant was unexpectedly
unable
to file
the response
by
or
before the deadline date, which
has resulted
in a one-day delay.
3.
The inadvertent delay in the filing
of Complainant’s
response
will not cause any
delay
in the dates
agreed to by
the
parties for discovery activities.
No
stay
in the discovery
schedule
has
been ordered, nor is there any additional
request for
a change
in the discovey
schedule
previously established
by the November
15, 2005
Hearing
Officer Order.
WHEREFORE,
for the foregoing
reasons,
Complainant respectfully requests that the
Hearing
Officer enter
an
order granting
Complainant
a one-day extension of the filing deadline
for
its
response,
and
grant
Complainant leave to file
its
response.
Respectfully Submitted,
PEOPLE OF THE
STATE OF ILLINOIS,
ex rel
LISA MADIGAN,
Attorney General
of the
State of Illinois
MATTHEW
J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:
‘7.~
/
,JA1~JEE.
MCBRIDE
Assistant Attorney General
Environmental
Enforcement
Bureau
500 South
Second Street
Springfield,
Illinois 62706
(217) 782-9031
Dated
________
2
BEFORE THE
ILLINOIS
POLLUTION
CONTROL
BOARD
TAZEWELL COUNTY,
ILLINOIS
PEOPLE
OF THE
STATE OF ILLINOIS
Complainant
PCB No.
97-1 79
v.
MIDWEST GRAIN
PRODUCTS
OF
ILLINOIS,
INC.,
an
Illinois corporation
Respondent
RESPONSE TO RESPONDENT’S
MOTION TO STRIKE COMPLAINANT’S INTERROGATORIES
NOW
COMES
Complainant, PEOPLE OF THE
STATE OF ILLINOIS,
and
responds to
Respondent’s
Motion
to
Strike
Complainant’s
Interrogatories as
follows:
1.
The
basis for Respondent’s
motion
to strike
appears in
paragraph
18 of its
motion, wherein
it states
that Complainant’s discovery requests are,
in
part,
overly broad,
duplicative and/or unclear,
causing
Respondent to bear an
unnecessary burden
and
expense in
attempting
to
reply
to such
requests.
It also asserts as
a
basis Complainant’s “refusal” to
provide
a substantive
reply to
Respondent’s attempts
to
discuss discovery issues,
and
labels
Complainant’s
alleged
refusal
as
harassment.
2.
In
response
to
Respondent’s claim that Complainant
has refused
to
“provide
a
substantive
reply”,
and with
regard to
events or dates
leading
up
to
Respondent’s filing
of
its
motion
to strike,
it is Complainant’s
belief,
position
and
contention that a discovery stay was
in
place.
Complainant fully believed and intended
that a
response to
Respondent’s
September
20, 2005
letter was
timely and
appropriate within a
matter
of days of the October 25, 2005
status.
Counsel for the Complainant stated
at the time
of the
status
a response to
the
September 20, 2005 would
be forthcoming
within
a
matter
of
days, not the day of the status
itself.
Since
October 25,
2005,
Complainant has formally
requested
an
extension of time
in
which
to respond
to the
motion
and
has
requested
an
extension
of the discovery deadline.
The
basis of this request
was set forth
in Complainant’s
written
motion,
and
Respondent indicated
it
had
no objection.
Complainant communicated
its appreciation of
Respondent’s cooperation
in
this
regard.
Complainant has
since
responded
to Respondent’s
September 20, 2005
letter,
a
copy of which
is attached
hereto
as
Exhibit
A.
3.
In
response
to the assertion that 5 of the
29
interrogatories propounded
by
Complainant are
overly
broad,
duplicative and/or
unclear,
and
thus a motion
to
strike is
merited,
Complainant states
that such grounds are
grounds for objection
but not
a
motion
to
strike.
As
set forth
below, Complainant has
agreed to withdraw two of the five interrogatories Respondent
finds
objectionable.
That leaves
three interrogatories which Respondent finds
overly broad,
duplicative and/or unclear.
Complainant responds
below that should
an
answer or response to
one
interrogatory indeed
be duplicative of
a response
to another interrogatory, Respondent can
easily incorporate
its
response to the first interrogatory
into the response to the second
interrogatory
by reference.
Therefore, the objection
that interrogatories are duplicative,
but
otherwise
not objectionable,
can
be
resolved
by merely incorporating
a
prior answer by
reference.
That leaves “overly broad”
and
“unclear” as these
two objections
might
be
pertinent
to
Interrogatories 4,
9 and
11.
It appears,
based on
Respondent’s
motion,
that the primary
objection
to
these three
interrogatories is that
all
three ask for a
lot of information,
some
of
which
is simply not available.
And
finally,
Respondent is refusing
to
provide
any information
pertinent
to something
known as
the “Swiss
Combi systems.”
These
last two
issues,
that of the
amount of information that is responsive to
each
interrogatory, and
the
issue
of the request for
information
regarding the Swiss-Combi systems,
are
addressed below.
4.
As stated above,
Complainant withdraws
Complainant’s Interrogatories
26 and
28.
2
5.
In
its
communication pursuant to
Supreme Court
Rule 201
(k),
and
in
its
Motion
to
Strike,
Respondent has
communicated
its
refusal
to provide
any information regarding the
Swiss Combi system
it has installed
to
provide controls
not at
issue
in
this matter which is an
identical
system
to the Swiss Combi
it will be
installing
as the proposed
compliance technology
to
resolve this enforcement
matter.
6.
In
response to Respondent’s
refusal,
Complainant has
communicated
to
Respondent,
and herein
provides, the
basics of the jusitification for Complainant’s
request for
information
regarding the Swiss
Combi systems.
7.
Significantly,
by letter dated November
3,
2005,
Respondent stated that “a first
step toward
compliance occurred
in
May 2002,
with
EPA’s permitting
and
MGP’s
installation of
the Swiss-Combi dryer.” The
Swiss Combi
system that has
been installed
at Midwest Grain
is
virtually the identical
system proposed
to be
installed
to
resolve all
compliance matters at issue
in the
instant action,
is best available control
technology
(“BACT”),
and
has
been determined
as
such by the
Illinois EPA
based
on
Respondent’s BACT analysis submitted
to
the Illinois
EPA
as part of the
PSO approval process
to
comply with
PSD
requirements that are the subject
of
this enforcement action.
In
that the Swiss Combi
is BACT and
is
intended
to
return
the facility
to
compliance,
the information
regarding the
Swiss
Combi
is directly
relevant to economic
benefit derived
by Respondent Midwest Grain
as well
as
to any claim Respondent may assert
relevant to the fact
Respondent has
proposed
an
acceptable compliance technology and
has
proceeded
to permit
that technology.
There
is
currently a
permit application
in house at the
Illinois EPA,
submitted
by
Midwest Grain, for the Swiss
Combi
system that
has been
accepted
as
the technical compliance
in
this
matter.
Given
the
Illinois
Environmental
Protection
Act,
as
amended,
now requires
the
Illinois
Pollution
Control
Board
to establish
economic benefit
in the
assessment
of penalties,
all
factors
pertinent to
an
economic benefit calculation
are
relevant to
3
the matters at
issue
in
this enforcement action.
Further,
Respondent’s
third
affirmative defense
was
not struck and thus remains at
issue
in this matter and
Complainant expects Respondent
to
present evidence
relevant to
the third
affirmative
defense
at
hearing.
Respondent’s third
affirmative defense
is:
Pursuant to discussions with
the
Agency,
Midwest Grain
has agreed
to purchase
and
install additional
emission
control
equipment, at
substantial expense.
Midwest Grain’s
commitment
to
the
Agency
to install
new emission control
equipment constitutes
a
Compliance
Commitment Agreement.
Midwest Grain
is in
compliance with the
Compliance
Commitment Agreement,
therefore, these allegations
should
not have
been
brought.
In
that the Swiss
Combi
is the technology that will be
installed
to meet compliance
requirements,
it is certainly relevant to this third
affirmative
defense.
And
further,
as
set forth
in
the Board’s order regarding Respondent’s affirmative defenses,
the
Board
found
that
Respondent’s
second
and
fourth affirmative defenses,
although
not affirmative defenses,
to
be
standard defenses and
concern evidence that would
be
relevant to
the assessment of penalty
despite the fact they were not affirmative
defenses relevant to
liability for
the violations alleged
in the complaint.
Complainant expects
Respondent to present
evidence pertinent to
issues
raised
in
Respondent’s second and
fourth defenses.
The fourth defense
is:
Midwest Grain
filed an
application
for an operating
permit on
March
16,
1995.
To date,
the
Agency
has
not acted
upon the operating
permit application, although
Midwest
Grain
has
extended the review
period for the operating
permit application
three times
(the last time for an
indefinite
period).
Midwest Grain
has also filed
an
application for a
Clean
Air Act
Permit.
Midwest Grain
has
been in frequent
contact with
the
Agency
and
the
Agency
has
not alleged
that an operating
permit
is
required
at this
time.
At
no time
has
Midwest Grain
disregarded
the provisions of the Board’s air permit
regulations and
it
has worked
steadily with
the
Agency
to remedy the difficulties
it has
had
as
a result of
the unexpected difficult engineering
for
its
emissions.
The last sentence of this defense is very telling.
It addresses the “unexpected
difficult
engineering for
its
Respondent’s
emissions.”
There
are
many factors
that have
led
to the
4
ultimate determination of the Swiss
Combi as
BACT
in this
matter.
There
have been
a series
of
improvements, repairs,
remakes,
and
different technologies proposed
by
Midwest Grain
to
address
its emissions.
Modeling
and
NAAQS
compliance have
been at
issue
in this matter.
There
have
been numerous
and
a wide variety of
issues raised
in
this enforcement
matter.
However,
the bottom line
is that the Swiss Combi was
ultimately proposed
by
the Respondent
as
BACT,
and
the Swiss
Combi
has been
accepted by the Illinois
EPA as
BACT.
Thus,
as
the
ultimate resolution for
compliance technology issues
in this
matter,
it
is certainly relevant to the
case and
the resolution
of
all
of the questions,
issues,
defenses brought forward
in this matter
and for which evidence
is
expected
to
be
presented at hearing.
8.
In
its
correspondence to
Complainant,
and
in its
Motion
to
Strike,
Respondent
states
it
cannot
be
“reasonably expected” to
respond
to
Complainant’s
Interrogatory
No.
9
because
(1) is
does not have dryer
operation
documentation prior to
1999,
(2)
MGP will
be
required
to
locate and
review documents from three shifts
daily for
11
years, potentially
amounting to
12,000 discreet events,
and
(3)
it refuses
to provide any information
regarding
the
Swiss Combi
systems.
Repondent objects to
Complainant’s Interrogatory
No.
9 as
overly broad
and
unduly burdensome.
9.
Complainant’s Interrogatory
No. 9
consists of the following
request.
Please provide
all information
known
to the Respondent and/or
in
its
possession
and
control
regarding
the date(s) of operation of the feed
dryer systems 651
and
661
and the Swiss-Combi system already
in
operation
at Midwest Grain, beginning
1994 through the present.
10.
In
its
September 20,
2005
letter to
Complainant, Respondent offered
to provide
hours
of operation
of dryers 651
and 661
on
a yearly
basis.
Complainant has
asked
Respondent to
produce this
information
as offered,
and
has
indicated
if the Complainant feels is
it
requires additional information
after
reviewing the first
production
it will request that such
additional
information
be
provided
consistent with
the original
request set forth
in
Interrogatory
5
No.
9.
Complainant continues
to
object to
Respondent’s
position relevant to
production
of
information
regarding the Swiss-Combi systems.
11.
Respondent contends that Complainant’s
Interrogatory No.
4 is overly broad
and
unduly burdensome
in time and
scope.
Complainant has
responded that the information
requested
is necessary
for a penalty calculation
and
points
out that,
in that economic benefit
is
now a
required portion of any penalty assessed
by the Pollution
Control Board,
and operation
and
maintenance
is a factor
in that calculation,
the requested
information
is
relevant.
Further,
Complainant contends that every
aspect of the technologies
installed
and
placed
into operation
at the facility will
be
relevant
to the arguments presented
at hearing
in this matter,
both with
regard
to allegations
contained
in the complaint
and
defenses asserted by
Respondent.
MGP
has and
continues to
maintain
that no economic benefit was derived
resulting from
its failure
to
comply with
federal PSD and
State
permit requirements given
costs incurred
by the facility
relative to the operation
and
maintenance
of feed
dryers 651
and
661.
Accordingly, documents
requested
by the
State are
directly relevant
to issues
relative
to
economic
benefit and the
operation of each
emissions
source.
Complainant expects
that the Respondent will
have
operation
and
maintenance information
compiled and
available for
its own
purposes at
hearing
in
this
matter.
The amount of
money
involved
in the operation
and
maintenance of these
dryers
in addition
to
the Swiss-Combi system
certainly is relevant to the amount of time and money
spent making
this failed technology operable for
these
many years
it
has
been
in place while
the issue
of appropriate BACT has
been
on
the table,
in
addition
to costs representative
of the
installation,
operation,
and
maintenance
of the Swiss-Combi system.
Complainant
has asked
Respondent if it
has operation
and
maintenance information
available
in any form
upon which
it
intends to
rely at
hearing.
Should
information
responsive to the State’s discovery request
exist,
the information
is relevant and
should
be
made available,
in
a
useful and
usable form.
6
12.
Respondent contends that Complainant’s
Interrogatory
Number
11
“is virtually
impossible for
MGP
to respond
to”,
apparently due to
the broad nature of the request.
13.
Complainant’s
Interrogatory No.
11
consists
of the following
request:
Please
provide all
information
known
to the Respondent and/or
in
its possession
and
control
regarding the construction
and
operation
of feed dryer systems
651
and 661
and
the Swiss-Combi systems,
including
emission testing
of said
equipment;
the construction and operation
of air
pollution control
equipment
to
control
PM
emissions generated during operation of feed
dry systems 651
and
661;
and
modeling prescribed
by federal
PSD
requirements.
14.
Respondent contends Interrogatory
No.
11
consists of four separate
interrogatories.
Complainant disputes such a characterization.
15.
Respondent provides numbering
to support
its
contention
in
an exhibit
attached
to
its
motion.
It
looks like
the following:
(1) Please provide
all
information
known to
the Respondent and/or
in its
possession
and control
regarding the construction and
operation
of feed
dryer
systems 651
and
661
and
the Swiss-Combi
systems,
(2)
including
emission
testing of
said
equipment;
(3) the construction
and
operation of air pollution
control
equipment
to
control
PM
emissions generated
during
operation
of
feed
dry systems 651
and 661;
(4) and
modeling prescribed by federal PSD
requirements.
16.
Complainant contends that the interrogatory is
drafted
to set forth a general
request, which includes a list of specific aspects of the request the Complainant is concerned
with.
Please provide
all
information
known to the Respondent and/or
in
its possession
and control
regarding the construction
and operation
of feed dryer systems
651
and
661
and
the Swiss-Combi systems,
including
(1) emission
testing
of said
equipment;
(2) the construction and
operation of air pollution control equipment
to control
PM
emissions generated
during operation
of feed
dry systems 651
and
661;
(3) and
modeling prescribed
by federal PSD requirements.
The
interrogatory generally asks for construction and
operation
information
and
is
drafted
consistent with applicable
case
law,
which was so
aptly reviewed
by the Respondent itself
in its
7
motion
and
in
pleadings associated
with
Complainant’s
motion
to
strike
Respondent’s
interrogatories.
The second
portion
of
the interrogatory fine
tunes
the request so
as
to
identify
specific information the Complainant
is looking
for within the general
request,
that being, and
set off by the term
“including” which
is
utilized
to convey
its common
meaning,
(1) emission
testing of the feed
dryer systems and
the Swiss-Combi system
(such
information would
be
expected
to
be
included
in
all data
considered construction and operation
information
since
emission
testing
is required
in the construction process
of such equipment
and
must
be
conducted
to ensure that the equipment is operated
in
compliance with
its
permit
requirements);
(2) construction of air pollution control
equipment for the dryers and
Swiss-
Combi
systems
specific to control
of
PM emissions
(this
information would
also
be
expected
to
be part
of any construction and
operation
data generated
for the dryers
and
Swiss-Combi
system,
since
it entails
the construction and operation
of
a very pertinent and
relevant portion of
the equipement);
and
(3) modeling
information pertinent to the dryers and
Swiss-Combi system,
as
prescribed
by federal
PSD
requirements (which Complainant knows Respondent has
undertaken
in
anticipation of
meeting
BACT
in the process
of the BACT determination,
as well
as
in anticipation
of meeting
specific
PSD
requirements
necessary for the Swiss-Combi permit
application,
which is all
part of the construction and
operation
of the dryers and
Swiss-Combi
systems
in that the modeling
had
to
be
done
to meet
PSD requirements,
and vice versa,
appropriate construction
and operation
projections are
absolutely
paramount to
accurate
modeling).
Respondent contends that the second
portion
of Interrogatory
11
does
not elicit
details that are
common
to the theme of the primary question.
Complainants disputes
this
contention
and,
as
set forth
above, argues that the items requested
are
very much
consistent
with
the general
request for construction and
operation
information.
17.
Respondent contends that information sought via
Complainant’s
Interrogatory No
8
11
is duplicative
of
information sought
in
Interrogatories
No.
8 and
9.
As
noted
in
correspondence
to
Respondent,
Complainant
would expect Respondent to provide
responsive
information
to
Interrogatories 8 and
9,
and
if said
information
is also responsive
to
Interrogatory
No.
11,
to simply reference
its answers
to
Interrogatories
8 and 9 in
its
response
to
Interrogatory
11.
18.
Complainant’s
Interrogatory No.
11
does
indeed ask for
all
information
relevant
to the construction and
operation
of feed dryers
651
and
661
and the Swiss-Combi,
and
this
information
should specifically include
all
information
relevant to emissions
testing pertinent to
the dryers,
all
information
pertinent to
the particulate
matter pollution control equipment
associated with
the dryers,
and
all
information regarding
modeling conducted
to
meet the PSD
requirements for the dryers
and
the Swiss-Combi system
that
is
in place and
the one proposed
to
replace the dryers.
All
such
information
is relevant to the installation,
operation,
repair,
modification
and
reconstruction
of
both
the two feed dryers, which is
obviously
relevant to
Respondent’s
defenses
in this case,
and
the request is also relevant
to
BACT for
this case.
In
its
response,
Complainant
has queried
of
the Respondent as to what form
such
information
is
generated,
maintained and stored
by
Respondent,
and what
information
responsive to
this
Interrogatory
is
readily available versus what
is
not readily available.
Complainant
has asked
of
Respondent whether it has
conducted
any summarization
of the requested
information itself for
purposes of this enforcement
matter,
and
whether
Respondent
might be
willing
to examine the
possibility of stipulating to
a given set
of factual
information
pertinent to
the relevant questions.
Such is a
common
method of
addressing a
large volume of
necessary information.
9
WHEREFORE,
for the foregoing
reasons and
on the foregoing
grounds, Complainant
respectfully requests that Respondent’s
motion
to
strike
Complainant’s
interrogatories be
denied.
Respectfully Submitted,
PEOPLE
OF THE
STATE OF ILLINOIS,
ex
r&
LISA
MADIGAN, Attorney General
of the
State of Illinois
MATTHEW
J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:
~
J191?E.
MCBRIDE
~sistant
Attorney General
Environmental
Enforcement
Bureau
500 South
Second
Street
Springfield,
Illinois 62706
(217) 782-9031
Dated
,,‘/Jo
7o
r
10
OFFICE OF THE ATTORNEY GENERAL
STATE
OF
ILLINOIS
Lisa Madigan
ATTORNEY GENERAL
November 28,
2005
Mr.
Patrick
Flachs
Mr.
John Collins
Husch & Eppenherger, LLC
190
Carondelet Plaza
Suite 600
St. Louis, Missouri
63105-3441
Via facsimile:
(314) 480-1505
Re:
People
v. Midwest Grain
Products
PCB No.
97-179
Dear
Mr.
Flachs:
I
am
writing in response
to issues
you have raised regarding
our discovery requests.
The
first point
I would
like to address is
your refusal to provide any information regardmng
the Swiss
Combi systems.
I
do not understand how you consider
information regarding
the
Swiss Combi to he irrelevant.
The Swiss
Combi is the technology you have
proposed.
as best
available control
technology (‘PACT”),
and we have accepted
based upon your BACT
demonstration, to comply with PSD
requirements.
It
is BACT in this matter
and your
compliance technology,
and thus
is certainly relevant to
the overall
resolution of the case.
As
BACT,
the information requcsted is directly relevant to economic benefits derived by Midwest
Grain Products
of Illinois,
Inc. (“MGP”)
as well
as
any claim, you may have relevant
to the fact
you
have proposed
an acceptable
compliance technology and have proceeded to permit the
technology.
You indicate in
your letter you would be
willing to discuss our theories
as to why
you
should produce documentation related
to the
Swiss Combi system.
I have set
forth the very
basics ofourjustificatmon
for the requests.
Our
Interrogatory
No.
4
(Document Request No.
2)
With regard to information requested in our InterrogatoiyNo.
4,
the information
requested, again,
is
necessary for
a penalty calculation.
As
you
are aware, economic benefit is
now a required portion of any penalty assessed by the Pollution
Control Board.
Operation and
maintenance
is
a factor
in that calculation.
Further, I am
sure
every aspect of the technologies
I
Exhibit
A
500 South
Second 5reer,
SpiingF,eld,
1!Iino,s
62706
•
(217) 782-1090
•
,a,sc’u,
oc/
/
I
lax:
l.~
I)
/51
/046
IOU West Randolph
5~reet,
Chicago,
Illinois
60601
(312)
814.3000
•
rr~
(312) 814.3374
•
Fax.
(312)
814-3806
1001
East
Main, Casbo,sdale
Illinois
62901
•
(618)
529.6400
‘
TrY
(6181
529-6403
•
Fax
(6181
579.6411.
Mr. Patrick
Flachs, Esq.
November 28,
2005
Page
2
installed and placed
into
operation at the facility will be relevant to
the arguments presented
at
trial in
this matter, both with regard to
our allegation and to your
defenses.
MGP has and
continues to maintain that
no economic benefit was derived resulting from
its failure
to comply
with federal
PSD
and State permit requirements
given costs
mcurred by the
facility relative
to
the
operation and maintenance of feed dryers 651
and 661.
Accordingly, documents
requested by
the
State
are
directly relevant to
issues relative to
economic benefit and the operation
of each
emissions
source.
I am sure you will have operation and maintenance information compiled
and
available
for your own purposes.
The
amount of money involved in the
operation and
maintenance of these dryers in
addition
to the
Swiss-Combi
system certainly is relevant to the
amount of time
and money spent making this
failed
technology operable
for these many
years
it
has
been in place
while the issue of appropriate BACT has been on
the table, in addition to
costs
representative of the
installation, operation,
and maintenance of the
Swiss-Combi
system.
Do
you have operation
and maintenance infonmiation available in
any form upon which
you
intend to rely at hearing?
Should information responsive
to
the State’s discovery request
exist, the
infoi’mation is relevant
and should be made available in a useful and usable form.~I
trust you
are as
interested in the information as we
are.
Interrogatory
No.
9
(Document Request No.
7)
‘Your objection to Interrogatory
No,
9
is
similar to
your objection
to Jinterrogatory No.
4.
Without withdrawing
or modifying the
State’s discovery request,
I would
ask that
you produce
information as
proposed in
your second
option, that
is, information related
to hours of operation
of dryers
651
and
661
on a yearly basis.
If we need additional information beyond what
is
provided, the
State will request that such information be provided
consistent with Interrogatory
9.
Interrogatory
No.
11
(Document Request No.
7)
In
Interrogatory No.
9 we are seeking
infoi’mation
on the dates
of operation of feed dryers
651
and 661
and the Swiss-Comhi
system,
beginning
in
1994
through the present.
As you
correctly point out,
hiterrogatomy
No
11
is much broader.
We would
expect that
you
would
provide the dates of operation, in response
to Interrogatory No.
9,
and
all
other information
requested
in Interrogatory
No.
11
in response to
I.nterrogatoiy No.
11.
Interrogatory No.
11
does
indeed ask for all information relevant to
the construction
and
operation of feed dryers 651
and 661
and the Swiss-Combi,
and this information should
specifically include
all
infonnation relevant to emissions testing pertinent
to the
dryers,
all
information pertinent
to
the particulate matter pollution control
equipmnent associated with the
diyers, and
all information regarding modeling
conducted
to meet the PSD requirements
for the
dryers
and the Swiss-Combt system
that is in place
and the one proposed to replace
the dryers.
All
such information is relevant to
the installation
and operation of both the two feed
dryers,
and
BACT for this ease.
Mr.
Patrick Flachs,
Esq.
November 28, 2005
Page
3
It may be helpful
for us
to know what
form
such information
is generated,
maintained
and
stored, and what
is
readily available
versus what may not
be readily available.
Have you
conducted any summarization yourself that you might be willing
to
stipulate to
as
true and
accurate.
Interrogatory
No.
26
I
am willing to withdraw
this interrogatory.
Interrogatory
No,
28
I am
willing to withdraw this
interrogatomy.
I remain willing
to
discuss
the Issues set
forth
above.
We,
of course, will
be responding
to your motion
to
strike.
Sincerely,
Jane E.
McBride
Assistant
Attorney General
(217)
782-9033
cc:
Dennis Brown,
Esq.,
IEPA
