ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS

)

Complainant,

)

VS.

FIRST COUNTRY HOMES, L.L.C., an

)

PCB 06- 173

Illinois Limited liability company,

,

)

(Enforcement

-

Water)

)

Respondents

NOTICE OF FILING

TO:

Thomas G. Gardiner

Gardiner Koch

&

Weisberg

53 West Jackson Blvd.

Suite 950

Chicago, Illinois 60604-3849

Mr. Bradley P.

Halloran

Hearing Officer

Illinois Pollution Control Board

James

R. Thompson Center, Suite 11-500

100 West Randolph

Chicago, Illinois 60601

PLEASE TAKE NOTICE that

I have today electronically filed with the Office of the

Clerk of the Pollution Control Board a Certificate of Service, a copy of which is attached and

herewith served upon you, certifying that I have served First Country Homes, L.L.C. with

Answers or Responses to Written Discovery.

rC--

Dated:

/m'flhA'w

?/,

,Z"@7

Matthew Marinelli

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

Attorney General of the State of Illinois

By: Assistant Attorney General Matthew Marinelli

Environmental Bureau

188 West Randolph St.,

2oth Floor

Chicago, IL 60601

3 12-814-0608

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS

)

)

Complainant,

)

VS.

PCB No. 06-173

(Enforcement

-

Water)

FIRST COUNTRY HOMES, L.L.C., an

)

Illinois corporation,

Respondent.

RESPONSES TO WRITTEN DISCOVERY

Now comes the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA

MADIGAN, Attorney General of the State of Illinois, and pursuant to Supreme Court

Rule 2 19 and Section 10 1.6 16 of the Board's Procedural Rules,

35 Ill. Adm. Code

10 1.6 16, hereby moves for entry of an order to compel Respondent, FIRST COUNTRY

HOMES, LLC, to provide answers or responses to all written discovery requests served

upon it by Complainant. Pursuant to Section

101.502(a) of the Board's Procedural Rules,

35

Ill. Adm. Code 101.502(a), this motion is directed to the hearing officer. In support of

its motion, Complainant states as follows:

1.

On September 12,2006, Hearing Officer

Halloran issued an order setting

a discovery schedule in this case. The discovery schedule stated that

written discovery "must be propounded on or before October 2,2006" and

that

"[r]esponses to written discovery must be completed on or before

November 1,2006.

2.

On September 29,2006, the State served Complainant's First Set of

Interrogatories to Respondent First Country Homes, L.L.C. ("First

1

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

Country") pursuant to Supreme Court Rule 2 13 and Illinois Pollution

Control Board Rule 101.620, 35 Illinois Administrative Code Section

3.

On September 29,2006, the State served Complainant's First ~e(uest for

Production of Documents, Objects, and Tangible Things to Respondent

First Country Homes, L.L.C. pursuant to Supreme Court Rule 214 and

Illinois Pollution Control Board Rule 10 1.6 16, 35 Illinois Administrative

Code Section 101.616.

4.

First Country failed to respond to the State's Interrogatories and Requests

for Production by November 1,2006.

5.

On November 2,2006, Hearing Officer

Halloran granted First Country's

request for an extension of time, thereby ordering First Country to respond

to the Requests for Production and Interrogatories by December 1,2006.

6.

On December 1,2007, First Country faxed the State a document titled

Respondents' Answers to Complainant's First Request for Production of

Documents, Objects, and Tangible Things to Respondent First Country

Homes, LLC ("First Country's Answers").

~ttadhed as Exhibit A.

7.

First Country's Answers repeatedly represented that responsive

"documents are available for inspection."

Id.

First Country's Answers 1,

2,

3,4, 5, 6, 7, 8,9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, and 22.

8.

First Country's Answers contained an "Attestation," which was signed by

Matthew Sidor, one of its attorneys. First Country's attorney swore that

"Under penalties as provided by law pursuant to

511

-

109 of the code of

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

Civil Procedure, the undersigned certifies that the statements set forth in

this instrument are true and correct

. . . ."

9.

On December 1,2006 First Country's attorney confirmed in a

teleconference with the undersigned attorney that First Country had

responded to the State's Requests for Production and that those responsive

documents were available for copying. First Country's attorney also

stated that First Country would serve its responses to the State's

Interrogatories "shortly."

10.

On December 7, 2007, the undersigned attorney participated in a

teleconference with Mr. Sidor. In this conversation, Mr. Sidor stated that

he had received responses to the State's Interrogatories

from First Country

and would serve responses to the Interrogatories within one week.

11.

On December 7,2007, during a scheduled telephonic status hearing,

Assistant Attorney General Matthew Marinelli related Mr. Sidor's

representation that First Country would serve its responses to the State's

Interrogatories within one week to Hearing Officer Halloran. Mr. Sidor

confirmed the truth of these representations.

12.

On December 7,2007, Hearing Officer

Halloran noted that the

Complainant had no objection to allowing the additional time requested by

First Country.

13.

The State's acquiescence to this extension of time was based on Mr.

Sidor's representations that First Country would fully respond to written

discovery within one week.

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

14.

On several occasions between December 7,2007 and December 14,2007,

Eric Schmidt of Document Technologies, Inc., the copying service

retained by the State, attempted to arrange copying of the documents

purportedly "available for inspection." According to Mr. Schmidt, on

each of these occasions Mr. Sidor stated that the documents were not

ready for copying. This information represents the first indication that

First Country's Answers were inaccurate.

15.

On December 14,2006, the undersigned attorney emailed Mr. Sidor to

determine whether the documents were available for copying.

16.

On December 14,2006, Mr. Sidor responded to the undersigned attorney's

email by stating, via email, that he "need[ed] to organize'' the documents

and that they would be ready during the week of December 18,2006.

Attached as Exhibit

B.

17.

On December 14,2006, the undersigned attorney participated in a

teleconference with Mr. Sidor, who stated that only the documents related

to the closings on the Phase VIII homes were available, but that First

Country's responses to the remainder of the State's Requests for

Production were not available for copying.

In response to the undersigned

attorney's question as to when First Country expected to respond to the

written discovery served by the State, Mr. Sidor stated that he hoped that

that First Country would serve its responses within a week.

18.

First Country's admissions that its responses to the State's Requests for

Production

wei-e not available for copying contradicted its sworn

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

representation that the responsive documents were "available for

inspection."

19.

As of January 12,2007, First Country had failed to provide meaningful

responses to the written discovery served by the State.

20.

On January 12,2007, the State sent a letter to First Country outlining the

above deficiencies in First Country's responses to the State's Requests for

Production and Interrogatories and requesting that First Country furnish

complete responses by January 19,2007. Attached as Exhibit C. This

letter indicated that the State would seek all costs associated with any

Motion to Compel necessitated by First Country's continued failure to

respond.

Id.

2 1.

On January 2 1,2007 and January 23,2007, Tom

Gardiner and Cary

Pumphrey replied to the State's

201(k) letter on behalf of First Country by

leaving voicemails with the undersigned attorney.

22.

On January 25, 2007, the undersigned attorney contacted

Cary Pumphrey,

who stated that First Country was unable to respond to the written

discovery served by the State and requested additional time to complete

such responses.

23.

Pursuant to Supreme Court Rule 201 (k), the State has made numerous

attempts to resolve this discovery dispute informally.

24.

To date, First Country has failed to provide meaningful responses to the

written discovery served by the State. It has provided no response to the

State's Interrogatories and responded to only a fraction of the State's

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

Requests for Production. Every discussion between the State and First

Country concerning First Country's responses to the discovery served by

the State has resulted in First Country either requesting additional time to

respond or notifying the State that it would be unable to respond pursuant

to the deadlines set by Hearing Officer Halloran.

.

25.

From December 13,2007 through January 3 1,2007, Assistant Attorney

General Matthew Marinelli has spent at least five hours corresponding

with First Country regarding these issues and drafting this Motion to

Compel. First Country's delay has also impeded the State's preparation of

its expert witness.

26.

First Country's failure to respond to the State's Interrogatories and

incomplete and inaccurate response to the State's Requests for Production

stand in stark contrast to the State's responses to written discovery served

by First Country.

27.

The State fully and completely responded to First Country's

Interrogatories and Requests for Production on January 12,2007, within

one day of the date set by Mr. Halloran.

WHEREFORE, the People of the State of Illinois respectfully requests that the

hearing officer enter an order:

A. Compelling Respondent, First Country Homes, LLC, to immediately

provide full and complete responses to Complainant's First Request

for the Production of Documents, Objects, and Tangible Things to

Respondent First Country Homes L.L.C.;

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

B. Compelling Respondent, First Country Homes, LLC, to immediately

provide full and complete answers to Complainant's First Set of

Interrogatories to Respondent First Country Homes L.L.C.; and

C. Granting the State leave to file a petition for attorney fees and an

f

accounting of its fees and costs incurred as a result of Respondent's

noncompliance with the Board's ordered discovery deadline.

D. Ordering such other and further relief as is appropriate under the

circumstances.

PEOPLE OF THE STATE OF ILLINOIS,

by LISA

MADIGAN, Attorney

General of the State of Illinois,

MATTHEW

J. DUNN, Chief

Environmental

Enforcement/Asbestos

Litigation Division

ROSEMARIE CAZEAU, Chief

Environmental Bureau

Assistant Attorney General

BY:

mr-3

-

MATTHEW

MARINELLI

Assistant Attorney General

Environmental Bureau

188 W. Randolph St., 20th Floor

Chicago, Illinois 60601

(3 12) 8 14-0608

7

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

1

DEC-01-2006

01 :20PM

FROM-

T-028

P.OO1

F-116

I

I

GARDINER KOCH

&

WEISBERG

I

53

West

3 121362-0000

I

FAX 3

12/362-0440

1

I

PLEASE DELIVER

TWE

FOLLOWING NLATERfAL AS SOON

AS

POSSIBLE

:

IF

DIFFICULT RECEPTJON, PLEASE

NOTEY GARDINER

KOCh

&

TO:

Man Marinelli

FROM:

Matt

Sidor

I

DATE:

December

FAX NO:

3

12-81

4-2347

NUMBER

OF

PAGES

INCLUDING

COVER SHEET:

I

8

I

MESSAGE:

I

I

I

I

I

I

I

I

I

I

THIS MESSAGE

IS

INTENDED

ONLY

FOR

TI.IE

USE

OF THE PERSON OR ENTITY TO WHICH IT IS

ADDRESSED, AND MAY CONTAM MFORMATlON

THAT

IS PRIVILEGED, CONFIDENTIAL

Am

EXEMPT

FROM DISCLOSURE

UNDER

APPLICABLE LAW. IF THE

READER

OF THIS MESSAGE IS NOT

TI-IE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMMATION,

DISTRIBUTION OR COPYING OF TWS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU

HAVE

RECEIVED

THIS

COMMUNICATION

M

ERROR PLEASE NOTIFY US IMMEDIATELY BY

TELEPHONE,

I

AND

RETURN THE ORIGINAL TO US AT

Tm ABOVE ADDRESS

BY

MAIL.

THANK YOU.

I

EXHIBIT

!

-- -

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

DEC-01-2006

01:20PM

FROM-

1-029

P.002

F-116

!

BEFORE

THE ILLINOIS

POLLUTION

CONTRGL

BOARD

PEOPLE

OF THE STATE OF

ILLINOIS,

1

1

Complaint,

1

1

vS.

j

PCB

1

FIRST COUNTRY HOMES, L.L.C., an

1

Illinois Limited Liability Company,

1

1

Respondent.

CERTIFICATE

OF

SERVICE

i

TO:

Lisa Madigan

Matthew

Marinelli

i

Attorney

General of the State of Illinois

Environmen~al Bureau

I

I88 West Randolph

Street,

20"' Floor

I

Chicago, Tllinois 60601

I

PLEASE

TAKE

NOTICE

that on the I st day of December, 2006, we issued

our

I

Answers

to Complainant's First Rcqucst for Production of Docurncnts, Objects and

I

Tangible

Things

to Respondent Mrst Country

Homes,

LLC, in

rhe

abovc-captioned

cause,

a

copy of wluch is hereby served upon

you.

i

First Country

LLC

By:

%-.

./\.

One

of

Its Attorneys

I

Thomas G. GardinerMatthew A. Sidor

!

G~INER

KOCH

&

WEISBERG

53 W. Jackson Blvd., Suite 950

I

Chicago, Illinois 60604

I

Telephone 3

12.362.0000

I

Facsimile

3

12.362.0440

I

I

I

CERTIFICATE OF

SERVICE

1,

Matthew A. Sidor, an

attorney,

do

hereby

affirm

under

oarh

that I

served copies of the

I

above-mentioned documents, by

facsimile

and

U.S. Mail, from 53 W. Jackson Blvd., Chicago,

IL, to the attorneys for the aforementioned parties, before

6:00

pm on the 1 st day of December,

2006.

1--

--

7

'1

-

,&...

-

i

Matthew A. Sidor

I

I

I

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

BEFORE THE

ILLINOIS

POLLUTION

CONTROL

BOARD

I

PEOPLE OF THE

STATE

OF ILLINOIS,

1

1

Complaint,

1

VS.

1

I

1

PCB

06-173

1

1

(Enforxment-Water)

FIRST

COUNTRY HOMES, ILK, an

1

Illinois Limited Liability Company,

1

1

I

Respondent.

I

1

I

I

RESPONDENTS' ANSWERS

TO COMPLAINANT'S

FIRST

REQUEST FOR

I

PRODUCTION OF DOCUMENTS,

OBJECTS, AND

TANGIBLE

THINGS

TO

RESPONDENT

FIRST COUNTRY HOMES.

LLC

I

I

Respondent, First Country Homes, LLC., by and through its attorneys,

Gardiner,

I

i

Koch

&

Weisberg. and pursuant to Illinois Pollution convol Board Rule 101.616, 35 111.

Admin. Code 101.61 6, answers Complainant's first

requesr

for production of documents

as

follows:

i

I

! .

General Objections

'

1

Respondenr objects to any request

that

calls' for privileged anomey-client

I

communications, work product, or on

any

other statutory objectionable

basis.

i

I

j

Eequest

No. I

:

i

Produce copies of all signed and filed statc and federal

tax

relurns filed for First

Country,

I

including all schedules and attachments, for

the

past three years.

ANSWER:

Documents are available for inspection.

Reauest

No. 2:

1

I

I

Provide all documents related to all Firsr Counay's accounts held at financial institutions,

including but not

limited to banks, savings and loans, trust companies, credir unions,

mutual

hd

companies, and brokerage companies, where First

Country

held

assets

I

including, but no1

limired

to,. deposit and

wirl~drawal

slips, alectronic transfer nolices,

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

checks

and direct deposir notices and monihly

and

annual account statements between

October

2004 and the date of filing of these requests.

ANSWER:

Documents are available for inspection.

Request No.

3:

Provide all documents including, but not limited to, financial statements, balance sheets,

corporate minutes, annual reports, profit loss statements, statements of income and

retained earnings, statements of cash flows or

any

other reports that were prepared .by or

for First Counrry between October 2004 and the date of filing of these requests for the

purpose of reporting First

Country's

financial condition. Financial stafements should

include

all footnotes

and

schedules.

I

ANSWER:

Documents are available for inspection.

I

Reauest No. 4:

I

Produce

any

independent audirors' reports relating to First Country with any aaached

integral notes, comments, and opinions for

the

last three years.

ANSWER:

Documents are available for inspection.

1

Request No.

5:

Produce any and all documents fiom the past three years relating to the formation,

dissolution,

and governance of First Country, including

bur

not limjtcd to lists of

shareholders, directors,

officers, and managers, micles of incorporation and dissolurion,

and financial reporrs.

ANSWER:

Documents are available for inspection.

Request

No. 6:

Provide all documents related to all assets

owned

by First Country an if Firsr Country no

Ionger owns

any assets that it possessed between October 1,2004 and

July

3 1,2005,

provide all documents related to the transfer or sole of the asset(s)

md

that indicate how

rhat

asset

was

transferred or sold, the person the asset was transferred or sold to, and the

arnounr of money or other considemion received by First

Country

for the transferred or

sold asset. Documents shall include those

listed

in thc definition in addition ro bills of

sale, purchase orders, receipts, invoices, deeds, titles, and contracts.

ANSWER:

Respondent &imative states thal he documentation as to rhe

specific contents of the office equipment rransferred from First

Country

has been lost.

Notwithstanding

the foregoing, responsive documents are available for inspection.

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

i

1

DEC-01-2006

01 :2lPM

FROM-

T-029

P.006/018

F-116

Reauesr No.

7;

Produce all documenrs, objects

and

tangible things Firs Counky will introduce into

evidence at

a hearing in this case.

ANSWER:

Respondent has not yet determined the full extent of

documents

which

it

will introduce at trial. Nowithstanding the foregoing, Respondent intends to

introduce the utility service agreement dated October

16,1986, by and between Aqua and

Monee;

&e Annexation Agreement dared November 16,1994, by and between Monee

and

cenain third parties; the Aqua communication issued April 15,2004, to Monee

Village President,

Timothy

P. O'DonnelI; the

Aqua

communication dated November

1

8,

2004, to Illinois Environmental Protection

Agency

Manager,

A1

Keller,

P.E.;

rhe

Illinois

Environmental Protection

Agency

Opinion

Lewr dated

December 3,2004, to Aqua;

certain building permits

and

other consents to proceed

wirh

construction issued

by

Moncc; an Affidavit of Kirsea Builders; the Complaint at

Law

filed by First Counuy

against Aqua on March 3 0,2005; the Emergency Motion for a Temporary

Restraining

Order and Preliminary Injunction; the settlement agreement entered by and between First

Country, the State

Bank

of Countryside as Trustee under Trust No. 03-2603, and Aqua;

the

sertlement statements pertaining to each home sold on the propexty and other

documents which will evidence the dates on which

any

purported discharge

may

have

occurred, if at

all;

any

and all documents

which

evidence Respondent's standard business

.

practices and method of construction; and non-privileged and non-confidential

cornmunicadons issued by any

third

partics going to the cause for the

delay

in obtaining a

filly execured construction permit, should Complainant's allegations be proven true; any

and all communication issued to and fiom the IlIinois Environmental Protection Agency

evidencing

the recommended course of construction

at

the Site; an

'

any

orher documenrs

which may disprove the allegations set forth in the Complaint. Documents are available

.

for inspection.

Reauest

No. 8:

Produce all documents, objects and tangible rhings First Country relies on andlor

references in its Answer to the Complaint, including, but not limited to, correspondence

fiom and to the Illinois

EPA.

ANSWER:

See answer to request number

7.

Respondent reserves the right to

supplement this answer prior to hearing of this matter. Documents

are

available for

inspection:

Request

No.

9:

Produce all 'documents relerenced in, relied on, or refcncd to in First Country's Answers

to Complainant's First Set of Interrogatories.

ANSWR;

Documents are avaiIablc for inspection.

.

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

DEC-01-2006 01

:22PM

FROM-

1-O2B P.006/018 F-116

Reauest No. 10:

Produce all documents, objects and tangible things which tend

m

contradict or disprove

any

of the factual allegations contained

in

the Complaint filed by the Complainant in

this

case and

include

the

specific factual allegation you claim the documents, objects and

tangible things contradicts or

disproves.

,

ANSWER:

See

answer

LO request number 7. Responden1 reserves the right to

supplement this answer prior to hearing of this matter. Documents are available for

inspection.

Peauest No. 1 1

:

Produce

any

and all communications

bcrween

Kirsea Builders, Location Finders,

Nonhcrn Builders,

Eagle

Fair.

Bailly

Ridge,

Twt

03-2603. Monee or First Country

and

other documents relating to

any

decision of Kirsea Builders, Location Finders, Northern

Builders,

Eagle Fair, Bailly

Ridp,

Trust 03-2603, Monee or First Country to start,

continue

or slop construction of any sewer system served or otherwise related

to Aqua

IllinoiJ, inclvding discussions concerning any decision to stark continue, or stop

construction of

any sewer without a sewer construcuon permit appmved by Illinois EPA.

ANSWER:

Documents

are

available for inspection.

.Request No. 12:

Produce any and all documents related to loans or other financial devices

involved

in or

relating to the financing of the

Phase

8 homes.

ANSWER.

Documents are available for inspection.

Reouest No. 13:

Produce

any

and all insurance policies covering the development of

the

Phase 8

homes

or

the

Site.

ANSWER:

Documents are available for inspection.

Rcauest

No. 14:

Produce

any

and all docurncnts relating to the financial information, sales, and delivery

associated with each

and every one of the Phase 8 homes, including, but not limited

lo:

a.

The price or prices at which First

Country

purchased

the

land associated with

each home,'or, in the alternative, the purchase

price

for

the

entire Site;

ANSWER:

Documents are available for inspection.

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

b.

The

cosr of cons~ructing

each

individual home;

ANSWER:

Documents

are

available for inspection.

c.

The

sale price

of

each individual home;

ANSWER:

Documents are available for inspection.

d.

Each conuacr, including contracts with the homebuyer and contracts with general

contractors

and subcontractors;

ANSWER:

Documents are available Tor inspeclion.

e.

The connection of each home to

the

sewer system;

ANSWER':

Documents are available for inspection.

f.

The delivery or orher transfcr of each

home

to its purchaser;

ANSWER:

Documen& are available for inspecrion.

g.

The payment for

each

home,

including

copies

of any

asset transfers relating to ihe

purchase of each home.

ANSWER:

.

Docunlents are available for inspection.

Reauest No.

15:

Produce any and all documents related to Aqua Illinois

and

eirher the Phase 8 homes or

the related sewer

sysrern.

ANSWER:

Documenls are avaiIablc 'for inspcction.

Reauesr No. 16:

Produce

any

and all documents related to

the

payment of First Counny's

anomey7s

fees

in

rhe

litigation of

Firsz

Country Homes,

LLC

v. Aqua

Illinois.

Case No. 05 CH 664 (Will

County).

ANSWER:

Objection.

Respondent object ro the foregoing request

as

pa~rining to privilcgcd attorney-clieni

communications.

Notwirhstmdinp

the

foregoing,

Respondent intends

to

introduce

a redacted version of the billing statements pertaining ro

the referenced litigation at the time of hearing of this matter. Respondent reserves rhe

righr to supplement this answer prior to hearing of this maner.

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

DEC-01-2006

01:22PM

FROM-

,

i

j

Request

No.

1 7:

i

I

Produce any and all documents related to

any

and all settlement agreements related to the

litigarion of

First Counrry Homes,

LLC

v. Aqua Illinois,

Casc

No.

05

CH 664 (Will

I

County).

I

i

ANSWER:

Documenrs are available for inspection.

Request

No. 18:

Produce any and all documents related to any and all claims for damages made by First

Country

related to the liugation of First

Counhy Homes, LLCv. Aqua Illinois. Case

No.

05

CH 664 (Will County).

ANSWER:

Documenrs,are available for inspection.

Reauest

-No. 1 9:

Produce

any

and all environmental permit applications, and

any

and all correspondence

related

to

such

permit applications, related to the Phase 8 homes.

ANSWER;

Documents arc available for inspection.

No. 20:

I

Produce

any

and all documenls relaring

m

the costs associated with proceeding, or not

I

proceeding,

wilh sewer consuucrion for the Phase 8 homes.

i

I

I

ANSWER:

See answer to request number 7. Notwithstanding the foregoing,

documents are available for inspecrion. Respondent reserves the right to supplement this

answer prior to hearing

of this maner.

!'

Reauest No. 21:

i

I

Produce

any

and all documenu relared 10 First Country's use of the revenue

il

obtained

i

from

the sale of the Phase 8 homes.

1

ANSWER:

Objecrion. Respondent objectto the foregoing requesr as

irrelevant, privileged and proprietary.

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

'

DEC-01-2006

01 :23PM

FROM-

T-029

P.009/010

F-116

I

Reauest No. 22:

I

Produce

any

and all documents related to

any

allegations made by Illinois EPA or any

governmental agency that James Sylvester or any corporate entity owned, managed, or

otherwise operated

by

him,

have vialared provisions of Federal, State andfor local

I

environmental

andlor public health laws and regulations, including but not limited to,

I

insmces in which James Sylvester or his corporate entities started

work

on a project

1

.

prior to

obtaining

a required permit for

rhar

project.

ANSWER:

None other than the

marrer

at hand.

<

Respecsully submitted,

FIRST

COUNTRY

HOMES,

LLC

By:

One of Its

Prepared by:

I

I

Thomas G. Gardiner

1

Matthew

A.

Sidor

I

GARDTNER

KOCH

&

53 West Jackson, Suite 950

1

I

Chicago, Illinois 60604

I

3

12-362-0000

3

12-362-0440

(f)

1

I

!

[

I

I

i

1

I

I

I

I

I

I

I

I

I

I

7

I

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

DEC-01-2006

01 :23PM

FROM-

T-029

P.010/018

F-116

I

I

I

I

I

STATE

OF

ILLINOIS

1

I

1

S.S.

I

I

COUNTY OF

COOK

I

1

I

ATTESTATION

I

I

1

The

attorney for Plaintiff, bcing first duly sworn on oath, deposes and states that

I

he

is

a mcmber of the law

firm

Gardiner Koch

&

Weisberg, that he prepared the

I

foregoing Response to Plaintiffs Firs Request for Production of Documents, Objects,

and Tangible

Things

to Respondent First

Country Homes, LLC, and

that

he

answered

and

fhlly

complied with Illinois Supreme

Court

Rule 214.

I

I

Marthew A. Sidor

I

I

I

I

I

[X]

Under penalties as provided by

law

pursuant 10

511

-

109 of the code of Civil

I

Procedure, the undersigned

cwifies

rhat the starcments set forth in

this

insbumen1 are

true and correct,

except

as

m

rnaners herein stated to be

an

information

and belief and as

to such manes, the undersigned certifies

as

aforesaid thar he verily believes the same to

be

nue.

I

I

Darc:

I

I

i

I

I

.

I

I

I

I

I

I

I

I

8

I

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

DEC-01-2006

01 :23PM

FRO+

T-029

P.011/018

BEFORE

THE

ILLINOIS POLLUTION CONTROL

BOARD

PEOPLE

OF THE STATE OF

ILLINOJS,

1

Complaint,

1

)

vs.

1

PC13

06-173

1

(Enforcement-Water)

FIRST COUNTRY HOMES,

L.L.C., an

1

Illinois Limited Liability Company,

1

1

Respondent.

1

CERTIFICATE

OF

SERVICE

I

I

TO:

Lisa

Madigan

i

Matthew

Marinelli

I

Anorney General ofihe Srare of Illinois

I

Environmental Bureau

i

I

i

188

West

Randolph

Svee~

2oCh

lo or

I

Chicago, Illinois

6060

1

i

I

I

PLEASE TAKE

NOTICE

that on the 1 st day of December, 2006,

we

issued

our

1

i

Respondent's First Set of Interrogatories and Requests to Produce to Complainant,

in

the

above-captioned cause, a copy of which is hereby served upon you.

I

I

First Country Homes, LLC

/'

.d

.-.

%. -

./

*.

By:

+---

One

of

Its

Attorneys

Thomas

G. GardinertMa~thew A. Sidor

GARDINER

KOCH

&

WElSBERG

53 W. Jackson Blvd., Suite

950

Chicago,

Illinois

60604

Telephone 3 12.362.0000

Facsimile

CERTIFICATE OF

SERVICE

I, Matthew A. Sidor, an

attorney,

do hereby affirm under oath that I served copies of the

above-mentioned

documenrs, by facsimile and

U.S.

Mail, from 53 W. Jackson Blvd., Chicago,

IL,

to the

attorneys

for the aforernen~ioned parties, before

6:00

pm on the 1s~

day of December,

21306.

/"

Manhew

4.

A.

.---

Sidor

J'

f.

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

Page 1 of 1

Marinelli, Matthew

From:

Matt Sidor [msidor@gkw-law.com]

Sent:

Thursday, December

14,2006 3:07

PM

To

:

Marinelli, Matthew

Subject:

RE: People v. First Country Homes, LLC (PCB

06-1 73)

Matt,

I need to organize them. I informed the copy service that

I would be back in touch shortly. I must address a

deadline in Federal Court which is taking up most of my time. I should have them ready early next week. Or,

they can come copy the majority

of

the documents tomorrow, and return early next week to obtain the remain~ng

box of documents which are the subject of my concern. I imagine the delay will not cause any harm to the

People, but let me know if you are under other time constraints and require the documents immediately.

Matt

From:

Marinelli, Matthew [mailto:mmarinelli@atg.state.il.us]

Sent:

Thursday, December

14,

2006 2:30

PM

To:

Matt Sidor

Subject:

People v. First Country Homes, LLC (PCB

06-173)

Matt,

I was puzzled to hear from the copying service retained by the State that First Country Homes'

responses to the State's Requests for Production are not available for copying. This directly contradicts

your statement on December 1,2006 that the documents had been produced and were available for

copying as of that date. Was the copying service correct that the documents are unavailable, or can I

send them over to copy the documents tomorrow?

Matt Marinelli

Assistant Attorney General

Illinois Attorney General

Environmental Bureau

188 West Randolph St., 20th Floor

Chicago, Illinois 60601

Telephone: (3 12) 814-0608

Fax: (3 12) 814-2347

EXHIBIT

113 112007

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

Lisa Madigan

ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

STATE OF ILLINOIS

January 12,2007

Sent Via Facsimile and

US.

Mail

Matthew Sidor

Gardiner, Koch and Weisberg

53 W. Jackson Blvd., Suite 950

Chicago, Illinois 60604

Re:

People of the State of Illinois

v. First Country Homes, LLC

.

Attempt

PCB

06-173

to resolve discovery dispute pursuant to Rule 201(k)

I

Dear Mr. ,Sidor:

On September 29,2006, the State served upon you its First Set of Interrogatories and

First Request for Production of Documents, Objects, and Tangible Things to Respondent

&st

Country Homes, LLC ("First Country") in the above-referenced case. Pursuant to Hearing

Officer Halloran's September 12,2006 Order, First Country's responses were due by November

1,2006. Upon First Country's request, Hearing Officer

Halloran extended that deadline by

Order on November 8,2006.

In that Order Hearing Officer Halloran allowed First Country until

December 1,2006 to respond to written discovery.

On December 1,2006, you served me with a copy of Respondents' Answers to

Complainant's First Request for Production of Documents, Objects, and Tangible Things to

Respondent First Country Homes, LLC ("Respondent's Answers"). You signed the Answers, in

which you repeatedly represented that "documents are available for inspection.'' Answers to

Requests1,2,3,4,5,6,7,8,9, 10,11,12, 13,14,15,17, 18,19,20,22. Respondent'sAnswers

contained an "Attestation," which you similarly signed, in which you swore that ''Under

penalties as provided by law pursuant to

511-109 of the code of Civil Procedure, the undersigned

certifies that the statements set forth in this instrument are true and correct

. . . ."

On December

1,2006 you

confihed in a teleconference that First Country had responded to the State's

Requests for Production and that those responsive documents were available for copying. You

also stated that you would serve First Country's responses to the State's Interrogatories

"shortly."

On December 7,2006 you assured Hearing Officer

Halloran and me that (1) First

County's responses to the State's Requests for Production were available' for copying and (2)

First Country would respond to the State's request for Interrogatories within a week.

500

South Second Street, Springfield, Illinois

62706

(217) 782-1090

TTY:

(217) 785-2771

Fax:

(217) 782-7046

100

West

-

Randolph Street, Chicago, Illinois

60601

(312) 814-3000

TTY:

(312) 814-3374

Fax:

(312) 814-3806

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

Matthew Sidor

January 12,2007

Page 2

Neither one of these representations appears to have been accurate. On several occasions

between December 7,2006 and December 14,2006, Eric Schmidt of Document Technologies,

Inc., the copying service retained by the State, called you to arrange copying of the documents.

On each of these occasions you stated that the documents were not ready for copying. On

December 14,2006, you told me that only the documents related to the closings on the Phase.

VIII homes were available. You stated that First Country's responses to the remainder of the

State's Requests for

Production.were not available for copying and that you hoped they would be

ready for copying this week. You also indicated that First Country's responses to the State's

Interrogatories were similarly delayed.

To date, the Responses to the majority of the State's Requests for Production have not

been made "available for inspection." Additionally, the State has not received First Country's

responses to any of the, State's Interrogatories.

First Country's failure to respond to the written discovery served by the State on

September 29,2006. stands

ip

stark contrast to the State's responses to the 'written discovery

served by First Country. The State response to First Country's interrogatories and requests to

produce on this date constitutes a timely response, as Hearing Officer

Halloran ordered the State

to respond to First

~oun'txy's written discovery by January 11, 2007.

Accordingly,

I am requesting, pursuant to Illinois Supreme Court Rule 201(k), that by

January

19,2007, you furnish to this Office

complete

responses on behalf of First Country to

the State's Requests for Production and Interrogatories.

I anticipate.that these responses will

include documents responsive to the State's 21" request for production, as the objections raised

in Respondent's Answers are invalid. Furthermore,

I inform you that the State will seek all costs

associated with any Motion to Compel First Country's answer to the State's written discovery

which is necessitated by First Country's continued failure to respond. First Country's failure to

respond is

a violation of the discovery process, as the State is now the only party to have

responded meaningfully to any written discovery. This is particularly problematic because First

Country served its written discovery upon the State more than two months after the State served

its written discovery on First Country. Thank you for your anticipated compliance.

Sincerely,

MATTHEW

%nsi~'

MARINELLI

Assistant Attorney General

.

Environmental Bureau

188

W. Randolph St., 20th F1.

Chicago, Illinois 60601

(312) 814-0608

mrnarinelli@atg.state.il.us

Electronic Filing, Received, Clerk's Office, January 31, 2007

---

CERTIFICATE OF SERVICE

I, MATTHEW MARINELLI, an Assistant Attorney General, do certify that I caused

the foregoing Notice of Filing and

Complainant's Motion to Compel Answers or Responses

to Written Discovery to

be served upon First Country Homes, L.L.C. on this?/f %ay of

January, 2007,

by facsimile and first-class mail in a postage prepaid envelope and depositing

same with the United States Postal Service located at 188 West Randolph Street, Chicago,

Illinois, 6060

1.

It is hereby certified that a true copy of the foregoing Notice of Filing was

electronically filed with the following on January

7

,

2007:

Ms Dorothy

Gunn

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph, Suite 1 1-500

Chicago, Illinois 60601

MATTHEW MARINELLI

Assistant Attorney General

Environmental Bureau

188 West Randolph St., 20th Floor

Chicago, Illinois 60601

3 12-814-0608

Electronic Filing, Received, Clerk's Office, January 31, 2007