ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, SEPTEMBER 21, 2005
BEFORE TUE ILLINOIS POLLUTION CONTROL POARD
TAZEWELL COUNTY, ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
PCB No. 97-179
)
v.
)
MIDWEST GRAIN PRODUCTS OF
ILLINOIS, NC., an Illinois corporation,
)
Respondent.
RESPONDENT MGP INGREDIENTS OF ILLINOIS, INC.’S RESPONSE IN
OPPOSITION TO COMPLAINANT’S MOTION TO STRIKE RESPONDENT’S
AMENDED FIRST SET OF INTERROGATORIES, OR, IN THE ALTERNATIVE,
MOTION FOR PROTECTIVE ORDER LIMITING INTERROGATORIES TO
PREVENT UNDUE EXPENSE AND HARASSMENT
COMES NOW Respondent, MGP Ingredients of Illinois, Inc.’s (“MOP” or
“Respondent”) f/k/a Midwest Grain Products of Illinois, Inc., by and through its attorneys, and
responds to Complainant’s Motion to Strike Respondent’s Amended First Set of Interrogatories,
or, in the Alternative, Motion for Protective Order Limiting Interrogatories to Prevent Undue
Expense and Harassment, as follows:
I.
BACKGROUND
Respondent has submitted thirty numbered Interrogatories. Complainant objects to the
interrogatories on the grounds they: 1) exceed the thirty interrogatory limit; and 2) are, in part,
overly broad, ambiguous and repetitive. Complainant also argues that Respondent’s
interrogatories were drafted to harass and cause undue expense to the Complainant.
As noted by Complainant, the first discussions between the parties regarding
Respondent’s Amended First Set of Interrogatories took place during a teleconference on August
29, 2005. During this discussion, the Complainant requested clarification of only three
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, SEPTEMBER 21, 2005
interrogatories; numbers 20,21 and
24.
While the parties did not resolve the Complainant’s
concerns about the term “exemptions” as used in Interrogatory 21, during that discussion
Respondent did agree to provide clarification in writing regarding Interrogatories 20 and 24. It
was also during this discussion that Respondent first learned of Complainant’s approach to
counting each subpart as a separate interrogatory, at least as applied to Respondent. Respondent
conveyed its disagreement with Complainant’s approach and specifically pointed out that
Respondent’s approach and use of subparts was designed to amplify and narrow the basic
request. Complainant neither disputed nor denied this was the case here. The discussion was
then terminated. At its conclusion, Respondent was under the impression that the Complainant
was satisfied with the outcome of the meeting and that Respondent’s written clarification of
Interrogatories 20 and 24 would resolve any remaining differences between the parties
concerning Respondent’s discovery requests.
Just two days later, on August 31, 2005 and before Respondent could even complete its
responses to Complainant’s requests for clarification, the Respondent received an eight page,
single-spaced letter from Complainant wherein the Complainant described issues it had with
approximately twenty of Respondent’s interrogatories. The letter further demanded a response
within two working days. The date set for response was the National 1-loliday of Labor Day.’ It
now appears that Complainant’s intentions to resolve the discovery issues raised at the August 29
teleconference were disingenuous and the eight page, single-spaced “surprise attack” had been
Respondent was prepared to address the alleged deficiencies in Interrogatories 20 and 24. Respondent can only
speculate as to reasons why Complainant deemed it necessary to draft an eight page, single-spaced letter essentially
demanding an immediate response. Perhaps Complainant expected Respondent to acquiesceto Complainant’s
demands at the August 29 teleconference and was not prepared when Respondent provided counter-arguments.
Discovery disputes are routinely resolved through cooperation and discussion. In fact, Illinois Supreme Court Rule
201(k) requires that the parties “facilitate discovery” and “make reasonable attempts to resolve differences over
discovery.” Respondent submits that Complainant’s actions in this case of demanding a response within two
working days and an answer on a National Holiday fail to meet even the spirit much less the strictures ef-Rule
20 1(k).
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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, SEPTEMBER 21. 2005
planned all along to cause further delay and prevent a reasonable resolution to this ease.
Statements in thc August 31, 2005 letter from Complainant to Respondent cvidence
Complainant’s intent to hinder Respondent’s discovery efforts, cause the Respondent to incur
additional litigation costs and further delay the timely resolution of this matter. In the August 31
letter, the Complainant admits that it “will not start work on preparing our specific responses
until we are in receipt of your response.”
See
Complainant’s Motion to Strike, Exhibit 4,
Meanwhile, in spite ofthe numerous objections available to Respondent regarding
Complainant’s interrogatories, MGP employees have continued to diligently search for records
and information, and prepare responses to the Complainant’s discovery requests even at the
expense of working overtime and weekends.2 MOP has also gone so far as to add additional
part-time personnel to assist in preparing the discovery responses.
Further, while admitting that in the August 29, 2005 teleconference that Respondent’s
subparts, to some extent, provide guidance, the Complainant asks this Court to take a draconian
approach to discovery, by asking for a strict reading of Board Rules and asserting each subpart is
a separate interrogatory. At the same time, Complainant ignores the fact that its interrogatories
take the same tact and closely follow the method it complains about Respondent using.
Complainant’s comments also demonstrate the continuing lack of cooperation on the
Complainant’s part which has existed in this matter for several years. It is apparent that the
purpose of Complainant’s motion is to hinder Respondent’s discovery efforts, cause the
Respondent to incur additional litigation costs and further delay the timely resolution of this
2
Complainant states, “Significantly, Respondent voiced no objection to Complainant’s interrogatories prior to
September 1,2005.”
See
Complainant’s Motion to Strike, paragraph 9. Respondent agrees its silence is
“significant” but not for the purpose Complainant offers. Respondent was then and continues now to make a good
faith effort to answer Complainant’s discovery requests even though Complainant’s interrogatories suffer from the
same “deficiencies” as Respondent’s. That approach is further demonstrated by Respondent’s September 20, 2005
letter to Complainant, attached as Exhibit 1.
3
ELECTRONIC FILING, RECEIVED. CLERK’S OFFICE, SEPTEMBER 21, 2005
matter.
Without citation to authority or any substantive analysis, Complainant urges the Board to
apply a formulistic, draconian interpretation of the Rule. An interpretation that would reach an
inequitable result, for Complainant’s interrogatories suffer from the same “infirmities” as
Respondent’s. Accordingly, Respondent requests that the Board exercise it sound discretion to
keep Complainant from this improper goal by denying Complainant’s Motions.
II.
RESPONDENT’S INTERROGATORIES ARE PROPERLY FORMATTED
The Illinois Pollution Control Board limits the number of interrogatories to thirty,
including subparts. 35 Ill. Adm. Code 101.620(a); Illinois Supreme Court Rule 213(c). While
the rule limits interrogatorics to a specific number, including “subparts,” it does not provide that
every subpart count as a separate interrogatory. The Committee Comments regarding Rule
213(e) do not shed any light on the “subpart as a separate interrogatory” issue.
Interpretation of the parallel Federal Rule (F.R.Civ.P. 33)3 provides the most relevant and
persuasive analysis available for determining whether subparts of an interrogatory should be
counted as a separate interrogatory. The attendant Advisory Committee notes make it clear that
subparts are to be counted separately only when they represent a shift of subject matter. For
example, the Advisory Committee stated that an inquiry “asking about communications of a
particular type should be treated as a single interrogatory even though it requests that the time,
place, persons present and contents be stated separately foreach such communication.” F.R.Civ.
P. Rule 33 Advisory Committee Notes, 1993 Amendments. In
Kendall v. GES Exposition Set-v.,
Inc.,
the U.S. District Court interpreted a local rule containing similar language as follows:
“Interrogatory subparts are to he counted as part of but one interrogatory
. . .
if they are logically
Respondent could not find, nor did Complainant cite, any relevant Rules analysis, Pollution Control Board
decision, Order or other Illinois State authorities on this topic.
4
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, SEPTEMBER 21, 2005
or factually
subsumed
within and necessarily related to the primary question.” 1997 U.S.Dist.
Lexis
15827
(D. Nev. August 8, 1997).
In
Swackhammer v. Sprint Corp., FCS,
the court held: “Interrogatories often contain
subparts. Some are explicit and separately numbered or lettered, while others are implicit and
not separately numbered or lettered.” 225 F.R.D. 658,
664-65
(D. Kan. 2004). The court then
recognized that an extensive usc of subparts could defeat the purposes of the numerical limit,
stating: “On the other hand, if all subparts count as separate interrogatories, the use of
interrogatorics might be unduly restricted,”
Id.
(citing
Williams
i’.
fid. of County Comm ‘rs,
192
F.R.D. 698, 701 (D. Kan. 2000). The court concluded “An interrogatory containing subparts
directed at eliciting details concerning a ‘common theme’ should generally he considered a
single question. On the other hand, an interrogatory which contains subparts that inquire into
discrete areas should, in most cases, be counted as more than one interrogatory.”
Id.
In
Banks v. Office of the Senate Sergeant-at-Arms,
the court’s approach to subparts was
to determine if the interrogatory “threatens the purpose of the rule by putting together in a single
question distinct areas of inquiry that should be kept separate.” 222 F.R.D. 7, 10-11 (D. D.C.
2004). The court continued,
After lawyers introduce a topic, they demand to know in detail all the
particulars about it, frequently introducing their specific demands with
the phrase “including but not limited to.” Thus, they may ask their
opponent to state whether a particular product was tested and then
demand to know when the tests occurred, who performed them, how and
where they were conducted and the result. In such a situation, all the
questions relate to a single topic, testing, and it would be unfair and
draconian to view each of the demands as a separate interrogatory. This
approach ends, however, the moment the interrogatory introduces a new
topic that is in a distinct field of inquiry.
Id.
Relying on a tortured interpretation of the term “subparts,” Complainant argues that each
of Respondent’s subparts should be counted as separate interrogatories. Absent any analysis of
5
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, SEPTEMBER 21. 2005
their
content, Complainant makes the
bald assertion: “ITihe first
14 interrogatories
posed by
Respondent actually numbered 30. In addition, Complainant has determined that Respondent’s
interrogatory numbers 7,
8, 11
and 19, with subparts, actually number 23 interrogatories.”
See
Complainant’s Motion to Strike, paragraph 7. Complainant’s draconian approach flies in the
face of the interrogatory interpretations described above.4 Respondent submits neither the Rule
nor the case law require such a narrow approach.
Pursuant to Board Rules, Respondent’s interrogatories were crafted to: 1) elicit all
relevant information; and 2) elicit information calculated to lead to relevant information. 35111.
Adm. Code 101.616(a). Each of Respondent’s interrogatories was individually designed to
obtain specific details concerning a common theme. Subparts were included because they
related to the single topic identified in the primary request. Examples of “single topics”
contained within Respondent’s interrogatorics include witnesses, major stationary source
determination, major modification determination, air modeling, air permits, penalty calculations
and BACT analysis. The subparts also served to provide detail, guidance and clarification so
that Complainant could focus its response to the specific topic or issue contained within the topic
of that Interrogatory.
Respondent is cognizant of the significant amount of documents that have been generated
during the past ten years in the course of resolving this matter. Respondent contends that its
interrogatories, as written, provide Complainant with such specific direction that Complainant
should be able to completely respond to each request. Unfortunately, Complainant disagrees, at
least with regard to these interrogatories.
Complainant states that “to genuinely attempt to respond to each interrogatory
“By applying
Complainant’s mere mathematical approach to interrogatory
subparts, Complainant’s.interrogatnries
exceed
the
Board’s limit by fourteen requests.
6
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, SEPTEMBER 21, 2005
.involves reviewing a very large amount of information in the specific context of each
question.”5
See
Complainant’s Motion to Strike, paragraph 10. Respondent agrees with the
general precept of this statement but not its conclusion. This matter has languished for over ten
years. Complainant is well aware ofthe extensive case history that has been developed.
However, it is counter-intuitive for the Complainant to: 1) express disbelief that the Respondent
would request detailed information dating back over ten years; 2) complain about such a
discovery request; and 3) seek exactly the same sort of documentation from Respondent (See,
e.g., Complainant’s Interrogatory 9, which seeks information about three separate dryer systems
“beginning 1994 through the present.”), Discovery efforts in cases like these are to be expected,
given the nature and history of this matter. It should also be noted that Respondent is faced with
the same burden, has raised no objections, and continues to diligently prepare its responses to
Complainant’s requests in spite of the glaring deficiencies that can be found in Complainant’s
interrogatories. Further, Complainant’s contention that Respondent’s interrogatories are “in part,
overly broad, ambiguous, and repetitive” is both incorrect and an insufficient grounds to strike
the requests.
Following is an interrogatory-specific analysis of some of Respondent’s
interrogatories.
Interrogatory 1: Complainant counts Interrogatory 1 as eight separate interrogatories.
Interrogatory 1 is acommonly drafted interrogatory that rarely, if ever, receives objection.
The accuracy of this assertion and the conclusion Complainant desires the Board to reach are now highly
questionable. Respondent has been informed by Illinois EPA that the documents subject to Respondent’s FOIA
request will be “ready for review” on or before September 26, 2005, Letter from Dennis F. Brown, Assistant
Counsel, Illinois EPA, to John Collins, Husch & Eppenberger (September 15, 2005). If this is so, then the State will
have already performed its review of a large amount of information in this case. One of two facts is then true.
Either the FOLA response offered by the State is deficient or Complainant’s assertions about the burdensome nature
of Respondent’s interrogatories are at best, inaccurate.
7
ELECTRONIC FILING. RECEIVED, CLERK’S OFFICE, SEPTEMBER 21, 2005
Clearly, this interrogatory was drafted as a single topic asking
inlorniation
regarding only those
individuals involved in answering the interrogatories. The subparts were directed to details
concerning a common theme and should, therefore, be considered a single question. One need
only look to Complainant’s Interrogatory 29 to recognize the folly in Complainant’s argument.
Complainant’s Interrogatory 29, seeking information similar to Respondent’s
Interrogatory I, is a major compound sentence containing multiple permutations and
combinations, including an “andlor,” Applying Complainant’s logic, if separated into its
subparts, its Interrogatory 29 would count, depending upon how one parses the sentence, from 4
to 10 separate interrogatories.
Interrogatories 2 through
5:
Complainant argues that Interrogatories 2 through
5
go
beyond the information specifically identified in Illinois Supreme Court Rule 213(f) and are
duplicitous. These interrogatories ask for information about fact and expert witnesses. The
subparts of Interrogatories 2 through
5
were included merely to provide clarification and
direction about such witnesses. Individual Interrogatories 2 through
S
do not introduce new
topics within themselves that reflect distinct fields of inquiry. Without any analysis,
Complainant seeks to bar these interrogatories on a strict mathematical reading of Rule 21 3(f).
Again, Complainant fails to examine its interrogatories on the same subject matter through the
same interpretive lens. For example, Complainant’s Interrogatory 14, subpart c, goes beyond
Rule 213(f) requirements by soliciting information regarding the dates on which MGP met or
consulted with the witness; Complainant’s Interrogatory 16, subparts g and h, both exceed the
limitations set by Rule 213(f) by apparently asking for the dates and/or nature of the witnesses’
prior testimony and the dates and/or nature of Respondent’s retention of the witnesses;
Complainant’s Interrogatory 16, subpart e, requests identical information found within the same
8
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, SEPTEMBER 21, 2005
interrogatory, subpart i.
Interrogatoryj: Complainant submits numerous objections to Respondent’s
Interrogatory 7. The cmx of the complaint appears to center on the assertion that Interrogatory 7
contains “subparts that go beyond the subject matter of the original interrogatory.” Interrogatory
7 concerns the allegation that MGP was, and continues to be a “major stationary source.” This is
a critical issue for MGP and one the Board has left open. On August 21, 1997, the Illinois
Pollution Control Board denied the Attorney General’s motion to strike MGP’s affirmative
defense that as a result of the shutdown of the fluidized bed coal boiler in 1994, it was no longer
a “major stationary source” and the PSD program requirements were no longer applicable to
MGP. All Interrogatory 7 subparts are elements of the “major stationary source” theme and were
designed to elicit specific information for each piece of equipment, process or operation
identified by Complainant.
See
Complaint, paragraphs 18
-
21. All subparts of this interrogatory
are directly related to the single topic “major stationary source” and the Complaint in this case.
These subparts were enumerated for the benefit of Complainant and provide both detail and
clarification to the primary request.
Interrogatç~jyfl: Complainant objects to Interrogatory 8 primarily because the topic
“major modification” was not mentioned in the original request. Complaint also avers that this
request should “count” as four interrogatories because it consists of four “subparts.” First, each
of the “subparts” of this interrogatory are related to the single topic: “major modification.”
Respondent could have drafted this interrogatory without subparts, separating each request by
commas or semi-colons and containing the term “major modification.”6 The “subparts” are
internally consistent and directly related to the issue of “major modification.” They provide
6
For examples of subparts separated with commas and semi-colons within an individual request seeCompISanrs
Interrogatories 3, tO and 11.
9
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, SEPTEMBER 21, 2005
discrete
and
direct inquiry about specific subjects within that topic.
In
short, the
subparts
focus
the broad topic on four specific matters. Alternatively, Respondent could have drafted a request
asking for “any and all information related to the ‘major modification’ determination.”
However, similar to Interrogatory 7, Respondent chose to provide detail and clarification for the
benefit of the Complainant. Further, the interrogatory is directly related to MGP’s pending
affirmative defense that it is not subject to PSD program requirements.
Interrogatories 9 and 10: Complainant objects to Respondent’s Interrogatories 9 and 10,
arguing the need for clarification of the difference between the two interrogatories.”7 A casual
comparison of the request shows that Interrogatory 9 has set out a request for communications
related to “air particulate permits or air particulate emission issues” within a specific time period,
and between specific parties. Respondent even went so far in Interrogatory 9 to provide specific
dates on which conversations took place to aid the Complainant in its search. Interrogatory 10
concerns the separate topic of air particulate permit modifications and air particulate permit
application modifications. Complainant requests clarification yet seems to answer its own
question by stating that permits issued by the Illinois EPA Bureau of Air “are in two forms,
construction and operating permits.”
Interrogatory 11: Complainant objects that Respondent’s Interrogatory 11 consists of
one primary request and four subparts requesting information “above and beyond” the
information sought in the primary request. Complainant thus counts this request as five
interrogatories instead of one. Interrogatory II relates to the Complainant’s penalty calculations.
All of the “subparts” are directly related to eliciting details concerning the common theme of
‘Complaint
also asserts Interrogatory 9 is “over broad”. A reading of the request will show the folly of
Complainant’s position.
10
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, SEPTEMBER 21, 2005
“penalty calculation.” Each seeks a specific fact about the single topic of “penalty calculations.”
Counsel for Respondents asserts that adopting Complainant’s draconian approach by separating
this interrogatory into five individual interrogatories is not warranted by the Rule and would be
doing our client an injustice. The extensive history of this matter demands efficient interrogatory
drafting and the inclusion of “subparts” aids in meeting this demand.
Interrogatories 14 and 16: Complainant objects to Respondent’s Interrogatories 14 and
16 as mirroring information requested in Interrogatories 12 and 13, and 8 and 12 respectively.
Each of these interrogatories is a single interrogatory that pertains to discrete topics.
Interrogatory 12 concerns communications related to a BACT determination; Interrogatory 13
concerns the analysis and methodology used to determine the BACT; Interrogatory 14 concerns
communications related to economic and technological feasibility; Interrogatory 8 concerns
issues related to the “major modification” determination; Interrogatory 16 specifically concerns
communications related to the use of “top down” analysis to select the BACT. Obviously none
of the interrogatories identified overlap or seek duplicitous information. Respondent notes that
Complainant has drafted interrogatories seeking duplicitous information. Complainant’s
Interrogatory 8 is seeking a subset of information it requested in Interrogatory
5.
Additionally,
Complainant’s Interrogatory II is seeking a subset of information it requested in Interrogatory 9.
Interrogatoryj9: Complainant objects that Respondent’s Interrogatory 19 contains four
separate interrogatories. Interrogatory 19 asks only for one thing: IEPA’s air emission modeling
at the MGP site. The specific requests for communications and data related to the modeling are
provided for nothing more than Complainant’s benefit, allowing it to narrow its response.
Respondent submits that a broader interrogatory requesting any and all communications and data
related to air emission modeling at MOP would also be in order here.
11
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, SEPTEMBER 21, 2005
lnterrogatoçy,.~l:Complainant objects to the Respondent’s use of the term
“exemptions.” Complainant, attempting to “shift the burden” to Respondent, asks, “Which
exemptions does Respondent believe are applicable?”
See
Complainant’s Motion to Strike,
paragraph 38. First, Respondent is not asking Complainant to address every exemption provided
for in the Clean Air Act (“CAA”) or the Illinois Environmental Protection Act (the Act”).
Respondent is merely asking what, if any, exemptions were considered. Nothing more. Second,
this request calls for a simple, straight-forward inquiry and answer. Respondent is perplexed by
Complainant’s attempt to make this interrogatory more difficult than it really is. Lastly,
Complainant’s objection is counter-intuitive. If Respondent complied with Complainant’s
request and included every exemption in the CAA or the Act, it would likely be met with
responses of “vague, overly broad, burdensome” or “subparts count as separate interrogatories.”
As it stands,In
sum,thisRespondent’srequest
is simpleinterrogatoriesand direct.
wereIt
callscarefullyfor a similarcraftedresponse.to
ensure8 that MOP obtains
the information it needs to meet the elements of its defense. The interrogatories seek
fundamental information and although they are detailed to ensure a complete response, each
specific subpart addresses itself to a single topic and thus should not be considered separate
interrogatories.
The purpose of the limit on interrogatories is not to prevent discovery but to prevent
potentially excessive use of this particular discovery device.
Power & Telephone Supply Co., v.
Suntrust Banks, Inc.,
2004 U.S. Dist. Lexis 6325, *4 (W.D. Tenn. March 15, 2004). Where a
party has not excessively abused the right to discovery, it is appropriate to mandate a response to
Respondent could certainly assert a similar objection to Complainant’s Interrogatory 26. Complainant’s request is
phrased in such a manner that it is requiring MOP to prove a negative. Complainant’s objection further exemplifies
its unwillingness to cooperate in discovery and its intent to delay a reasonable resolution to this matter.
12
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE SEPTEMBER 21, 2005
inlerrogatories even if they exceed the set
numerical
limit.
Id
at ~5. Despite the numerous
deficiencies in Complainant’s interrogatories, Respondent has: 1) diligently worked to comply
with the mutually agreed upon schedule and Order to complete discovery in a timely way; 2)
sought to provide clarification when requested; 3) asked for clarification when necessary and 4)
expressed its wishes to bring this matter to a conclusion that is long over due. Respondent
submitted its interrogatories in good faith and requests that Complainants be directed to respond
to them even if the Hearing Officer determines that they exceed the set limits. Accordingly,
Respondent respectfully requests that the Hearing
Officer
deny Complainant’s Motion.
Ill.
RESPONDENT’S
FOJA
REQUEST IS NOT RELEVANT
TO THE ISSUE
CURRENTLY BEFORE THE HEARING OFFICER
Without citation to authority or basis in fact, Complainant impugns the integrity of
opposing counsel while misstating the facts. Respondent is shocked and dismayed by
Complainant’s vituperative assertions and baseless allegations regarding opposing counsel’s
conduct surrounding a Freedom of Information Act request. First, such requests are a statutorily
mandated right. Second, the use or submission of FOIA is irrelevant to these proceedings.
Finally, Complainant ascribes to opposing counsel such improper motives, and unprofessional
conduct that it leaves Respondent no course but to move to strike all references to the FOLA
request.9Respondent
is entitled to submit a FOJA request to Illinois EPA pursuant to
5
ILCS 140.
Neither the Illinois FOIA statue nor the Supreme Court Rules provide any basis for anything
The State has made the outrageous and unprofessional allegation that Respondent’s
FOIA
request was brought in a
“vindictive manner.” The Complainant then makes the even more outrageous statements, “Complainant does not
have the ability to FOIA Defendant’s files and information. Respondent is taking advantage of the fact that
Complainant is a government agency subject to FOIA to unduly harass the Complainant, when Respondent itself is
not
subject to the
requirements
of FOJA and thus
not
likewise accessible to the Complainant.”
See
Complainant’s
Motion to Strike, paragraph 43. Complainant proceeds to use Respondent’s FOIA request as justification for
granting the motion that is currently before the Hearing Officer. Complainant fails to cite any statute, rule, case law,
committee comments or guidance to support its contention and Respondent cannot find any either.
13
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, SEPTEMBER 21. 2005
remotely rclatcd to striking or limiting a party’s discovery requests based upon the party’s FOR
request. Respondent has numerous, legitimate reasons for submitting its FOIA. First, MGP
hopes to use the FOIA documents to aid it in responding to Complainant’s discovery requests.
As noted above, this matter has dragged on for several years resulting in lost or destroyed
documents, copies of which may be in the FOIA requested files and might prove to be relevant.
MGP believes the FOIA request is necessary to obtain these documents and is uncertain if it can
respond completely to some of Complainant’s discovery requests without the FOJA documents.
Secondly, the sooner MUP receives the FOIA documents, the better its chances of understanding
specific details of the case and perhaps bringing a more rapid resolution to this matter. Lastly,
Respondent felt it had no choice but to renew the FOIA request after receiving Complainant’s
eight page letter threatening to petition the Hearing Officer to strike Respondent’s intcrrogatories
and stating that it was going to delay responding to Respondent’s discovery requests. As
mentioned above, MGP desires to resolve this case equitably and promptly. The information in
Complainant’s possession and subject to the FOIA is critical to expediting this resolution.
Respondent suspended its FUIA request in the spirit of cooperation. Complainant’s
actions left Respondent no alternative but to exercise its statutory right. At the risk of delay in
receiving discovery responses from the Complainant, Respondent has renewed its FOIA request.
That request is irrelevant to these proceedings and all references to the FOIA request should be
stricken from the record. Unlike the Complainant, MOP is diligently responding to discovery
requests and the FOJA documents are useful in responding to these requests.’°
WHEREFORE, Respondent respectfully requests that the Hearing Officer deny
‘°
Interestingly, the FOJA documentation has been announced as ready and available on or before September 26,
2005. See Exhibit 2.
14
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, SEPTEMBER 21, 2005
Complainant’s Motion to Strike Respondent’s Amended First Set of Interrogatories, and deny
Complainant’s alternative Motion for Protective Order Limiting Interrogatories to Prevent Undue
Expense arid Harassment. Respondent respectfully further requests that Complainant’s be
directed to respond to the interrogatories even if the Hearing Officer determines that the sum
total of Interrogatories they exceed the set limit of thirty.
Respectfully submitted,
HUSCH
“ENBERGER, LLC
By:
Husch & Eppenbcrger, LLC
190 Carondelet Plaza, Suite 600
St. Louis, Missouri 63105
(314)480-1 00
Datedj/4~*t1tO
21,
2005
15
09/23/2005 15:04 FAX 3144801S05
—
liliscil & EI’PENBERGRR
~001
ELECTRONIC FILING, REG VEO~Gk;ERKiSQ~FICE,SEPTEMBER 21, 2005
TX I~E1’()R’l’
s:f*
TRANSMISSION OK
TX/RX No
4595
CONNECTION TEL
912175247740
CONNECTION H)
ST. TIME
09/20 15:01
USAGE T
0245
I’GS. SENT
5
RESULT
OK
Husch & Eppenberger,
LLC
The Plaza in Clayton Office Tower
Attoracys and Counselors
at
i..~
190 Carondelet Plaza, Swte 600
St. Louis, MO 6310:’
Phone: 314.480.1500
Fax; 314.480.1505
Facsimile
TO:
Jane McBride
Assistant Attorney General
FAX
NO.:
217-524-7740
FROM:
Patrick M. Flacks
DATE:
September 20, 2005
NUMBER OF PAGES
INCLUDING
THIS
COVER SHEET:
5
MESSAGE:
This
fax contains
CONPIDFNTIAL INFORMATION WHICH MAY BE LEGALLY
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intended only for the use of
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named above.
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you
are not
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delivering it to the intended recipient, you
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that
any use, dissemination,
di~t,ihntinn nr rnnvinG
nfthic fi,v ;~
ct,4~tl,,
rirr,h1b4.,,,l
T-P..,ai
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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, SEPTEMBER 21, 2005
Husch & Eppenberger, LLC
Attorneys arid Counselors a 1
St. Lc,uts MO 63105
Phone: 314.480. 1 500
Fax: 314.480.) 505
Facsimile
TO:
Jane McBride
Assistant Attorney General
FAX NO.:
217-524-7740
FROM:
Patrick M, Flachs
DATE:
September 20, 2005
NUMBER OF PAGES INCLUI)ING THIS COVER SHEET:
5
MESSAGE:
This fax contains CONFIDENTIAL INFORMATION WIIICFI MAY BE LEGALLY
PRIVILEGED and which is intended only for the use of the Addressee(s) named above. If
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I ‘?‘•I
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Eppenberger, LLC
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PatdekF!achsihusch.corn
September 20, 2005
Jane McBride
Assistant Attorney General
Office of the Attorney General
500 South Second St.
Springfield, IL 62706
Re:
People v. MGI’ Ingredients of Illinois, Inc.
PCB No. 97-179
Dear
Ms.
McBride:
Pursuant to our clients’ efforts to comply with the Discovery process so this
matter may he brought to a conclusion and Rule 201(k) of the Illinois Supreme Court
Rules, we have reviewed your various Interrogatories and Request for Document
Production with the appropriate MGP representatives. During that review, we have
identified issues with Interrogatories 4, 9, II, 26, and 28. In an effort to attempt to
informally resolve those issues we see with the Interrogatory (and in any concomitant or
related Request for Documents), I will outline our concerns in an effort to informally
resolve these Discovery issues.
Interrogatory No. 4 (Document Request No. 2)
It is virtually impossible for us to”.
. .
provide all costs entailed in the purchase,
installation, modification, maintenance and operation of the feed dryer systems 651 and
661,
and
the Swiss Combi system, as well as the dates upon which each such cost
was
incurred and the date upon which it was paid, or installment schedule upon which it was
paid.”
This request encompasses virtually every document generated by operational
activities at MGP and the preponderance of our financial documentation. In addition,
there are several practical issues related to this request. First, MOP does not have
maintenance documentation for hours worked prior to 1999. After 1999, we estimate the
mechanic work orders by themselves encompass of several hundred instances per year.
In order to find these documents, and to satisfy your Interrogatory and Document Request
we would have to first find the files related to the dryers, then review the maintenance
Si. IOUFS
.
DOWNTOWN Sr. LOUIS
•
KANSAS CITY
.
JErFERsON CITY
.
SPRINGFIElD
.
PrORIA
2151639.01
CHATTANOOGA
.
DOWNTOWN MrMPHI5
•
EAST MEMPHIS. NASHVIU.E
ELECTRONIC FILING. RECEIVED, CLERKS OFFICE, SEPTEMBER 21, 2005
Husch&
Eppenberger, LLC
Jane McBride
Assistant Attorney General
September 20, 2005
Page: 2
files; find those files related to the dryers; and, pull the materials used in each work order
(if they are apparent) and determine the associated costs from financial data and
information. Moreover, we cannot assure the accuracy of this information, so the
documentation you would receive would, at best, be an estimate. This effort in our
estimation would require one person, working full-time at least one month to find, collect
and produce.
In addition, all the documentation relating to the operational costs of the dryers, including
all operator time sheets, gas readings and expense documents; along with management
notes including internal MOP meetings
and
those with the II3PA would have to be found
and collected. We estimate this would take an additional person, working full-time at
least 3
V2
weeks to assemble this information. We would like to discuss how we nught
narrow or focus this request to obtain the documents or information necessary for your
purpose.
Our client has committed to obtaining, collecting and providing all the costs entailed in
the purchase, installation and modification of feed dryer system 651 and 661. We might,
however, require an additional week or two from the current production date to
accomplish this task.
None of these estimates include the identification, collection and production of
information
and
documents related to the Swiss Combi dryer. We believe information
related to the Swiss Combi is not relevant for Discovery purposes in this lawsuit. We
would welcome the opportunity to discuss your theory or theories why we should
produce documentation related to the Swiss Combi system.
Jnterrogatory No. 9 (Document Request No. 7)
To comply with your request that we
“. .
provide all information known to the
Respondent
andlor in its possession and control regarding the dates of operation of feed
dryer system
651
and 661
• •
beginning in 1994 through the present”, would require that
we find and copy information from
three shifts per day, 365 days per year, for
II years.
This amounts to over 12,000 discreet events
and an unknown (at this point) number of
pages. In addition, we currently possess only related documents from 1999 to the present
and have not yet located any logs prior to that date.
We have two suggestions how to handle/narrow/meet your requests. First, is for you or
your representatives to come to the MOP facility in Pekin whereupon we will provide
you or your representative access to those logs we currently possess
and those we are
2151639.01
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, SEPTEMBER 21, 2005
Husch
&
Eppenberger,
LLC
Jane McBride
Assistant Attorney General
September 20, 2005
Page: 3
able to locate. Subject to reasonable restrictions (e.g., business hours and space), we
could
arrange
for this review at your earliest convenience. The second suggestion is that
you narrow this Interrogator’ and Document Request to information related to the hours
of operation of dryer 651 and/or 661 on a yearly basis. We can readily provide this
information to you and represent that it accurately depicts the dryers’ operations.
Again, the Swiss Combi system was not involved in this analysis.
Interrogatory No.
11
(Document Request No.7)
This Interrogatory, like lntcrrogatory No. 9, is quite broad;
“,...
provide all
information known.
.
or in its possession and control regarding the construction and
operation of feed dryer systems
.“
It also appears to actually subsume the request of
Interrogatory No. 9: operation viz. construction and operation
and
then adds specific
additional requests for emissions testing; construction and operation of air pollution
control equipment to control PM emissions (we
are
not sure what this means); and
“modeling” (which appear to be discreet requests in and of themselves).
This request, like No. 9 would require nearly two months for document collection and
production by itself. We would like to discuss how we might restructure this request and
coordinate production with Interrogatory No. 9.
Again, the Swiss Combi system
was
not involved in this analysis.
Interrogatory No. 26
We find this request that we “prove a negative” confusing. It does, however,
appear to ask for the inverse of what MOP seeks in our Interrogatories 10, 21, 26, and 27
and our Request for Admissions I thru 4. Accordingly, I think we should be able,
through meaningful discussions, be able to resolve this request.
Interrogatory No. 28
Setting aside the conclusory statements contained in the first portion of the
Interrogatory, and the improper use of the Stipulation and Proposal for Settlement, the
fact is that this request is extraordinarily broad; how does one show that a repeated
violation is caused by the installation of equipment that would only fail? In short, we
need to discuss either a narrowing or clarification of this Interrogatory.
2151639.01
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, SEPTEMBER 21, 2005
Husch &
Eppenberger, LLC
Jane McBride
Assistant Attorney General
September 20, 2005
Page: 4
I think we
can come relatively
close to the current production/Discovery schedule,
if we can resolve the issues I have outlined for you with regard to these five
Interrogatories. Please contact me at your earliest convenience to discuss these issue~
truly you:
Patrick M, F
215163901
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, SEPTEMBER 21, 2005
ILLINoIS ENVIRONMENTAL PROTECTION AGENCY
1021 NOROI GRAND
.AVENDF A’,i,
‘.0. I3cx
‘1176,
S(’RJNGFI(I,, lOIN, 6 1,2794—9276 — 217)
782—3397
J~IES
R.
IHINIPSON (ENIER,
101 Wisi
RANIXXI’frI, Si’iri 11-300, GHIIAOO,
II 60607
— 312) 814-6026
Rob
R. 131.410(1 VIII, (_C1\’ERNI’R
DoulLAs P. SITT, P!R(ITOR
217/782-5544
217/782-9143
(TDD)
September IS, 2005
Certified Mail
Return Recejpt Requested
7002 3150 0000 1221 0291
Mr. John Collins
Flusch & Fppenherger,
LLC
190
Carondclet
Plaza,
Suite
600
St.
Louis,
Missouri 63105-3441
Re: Freedom of Information Act Request
Dear Mr. Collins:
On September 6, 2005, the Illinois Environmental Protection Agency (“Illinois EPA”) received
from lusch & Fppenhergcr, I.LC (“H&E”), by electronic transmission (“c-mail”), a letter
requesting information pursuant to the Illinois Freedom of Infonnation Act (“FOJA”).
Specifically, H&E request that the Illinois EPA provide copies of all documents relative to
emissions testing performed by Midwest Grain Products of Illinois, Inc. (“MGP”) on January 10,
1996, an Illinois EPA inspection of MGP perfhrrned on September 21, 1995, meetings between
representatives of the Illinois EPA and MGP. and correspondence between representatives of the
Illinois EPA and MOP, as specifically set forth in detail within the information request. This
letter responds to the above-mentioned request.
As the number of documents maintained by the Illinois EPA Bureau of Air (“BOA”) relative to
MOP is significant, additional time is required by the Illinois EPA to assemble, review, and
evaluate records contained within BOA files to determine whether records responsive to the
request are exempt from public disclosure. Given the number of records contained within Illinois
EPA BOA files, and limited available State resources, the Illinois EPA has been unable to
complete its review of all documents within the initial seven day period prescribed by the FOIA.
Accordingly, documents responsive to the information request will be made available to H&E on
or before September 26, 2005.
Rc,cKFoRn
—
4302 Nor!h Main
SIred,
Rockiord It
6110)
-
8151 987-7760
•
1)IS
Pr
AIMS
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W
Flarriso,,
St.,
Des P!aines, IL 6(1(116 - 8.17! 294.4000
ELI,,,
—595 Sou!h Stale. E.!g’n. IL 60123
-
(847) 608-313!
•
ProR,,
—
541’ N LJn,vers,Iy St., Peoria, It 6161-I -309) 6’)3-546 3
BUREAU 01 lAND - PEORIA —
2620 N. Universily
St
.
Peoria, II. 616(4 -
(3091 691-5462•(’r,,v.,
P-NON
—
2125 SoulEt Firs! Sired, Champaign, IL 61820
— (217r
278-58(X)
SPE,Nr,cIrEn
—4500 S. Six!!, Street Rd
.
Springlield, IL 62706 —(2! 7) 786-6892
•
(J.ILINSVILL
—2009 Mail SIrceE, CeIIinsviiIe, IL 62234
—
1618)346-5720
MARION
2.309W. Main 5k, StOle 1! 6. MarIon. IL 62959
-
16181 993-7200
ru,
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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, SEPTEMBER 21. 2005
Should you have qiics!ioiis or comments with rcL’arLI m thIs
matter,
please contact the
undersigncd.
Sincerely,
Dennis E. Brown
Assistant Counsel
Division of Legal Counsel
