NOTICE OF FILING AND PROOF OF SERVICE
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL 110~
PCC’S MOTION FOR
I. INTRODUCTION
C. PCC Will Be Seriously Prejudiced If It Cannot Obtain The Information
ILL. CONCLUSION

EXHIBIT A
EXHIBIT B
EXHIBIT C
1. RESPONSE:
EXHIBIT B
EXHIBIT E
If— fa--°’/

)

PCB 99-134

sTATE OF

ILLINOIS

Pollution Control

Board

NOTICE OF FILING AND PROOF OF SERVICE

To:

Jane E. McBride (via FedEx)

Environmental Bureau

Attorney General’s Office

5005. Second St.

Springfield, IL 62706

W.C. Blanton (via U.S. mail)

Blackwell Sanders Peper Martin LLP

Two Pershing Square

2300 Main St., Suite 1000

Kansas City, MO 64108

David Joest (via U.S. mail)

Peabody Coal Company

1951 Barrett Court

P.O.

Box 1990

Henderson,

KY 42419-1990

Bradley Halloran (via FedEx)

Illinois Pollution Control Board, Hearing

Officer

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, Illinois 60601

The undersigned certifies that the original and four true and correct copies of PCC’s

Motion For Leave To Serve Interrogatories, and of Affidavit Of W.C. Blanton Relating To

PCC’s Motion For Leave To Serve Interrogatories, and of Affidavit Of Stephen F. Hedinger

Relating To PCC’s Motion For Leave To Serve Interrogatories were filed with the Clerk of the

Pollution Control Board, and one true and correct copy each was served upon the above-

identified individuals, via U.S. mail with first-class postage affixed or FedEx, by enclosing the

same in envelopes properly addressed, and by depositing said 9pvelopes in an appropriate U.S.

Post Office mail box or FedEx dropbox, on the

/y’~z

day of July, 2003, before

7.’OO

p.mL

Hedinger

Law

Office

2601 S. Fifth St.

Springfield, IL 62703

(217) 523-2753 phone

(217) 523-4366 fax

~~s~

StephpF. Hedingd

PEOPLE OF THE STATE OF ILLINOIS,

)

Complainant,

)

BEFORE

THE

ILLINOIS POLLUTION CONTROL

BIfrSt

£ IV ED

CLERK’S OFFICE

PEABODY COAL

corporation,

)

COMPANY, a Delaware

)

Respondent.

)

JUL 17 2003

TillS FILING IS SUBMIflEI) ON RECYCLED PAPER

BEFORE THE ILLINOIS POLLUTION CONTROL 110~

CLERK’S

CEIVEDOFFICE

JUL17 2003

PEOPLE OF THE STATE OF ILLINOIS,

))

STATE OF IWNOIS

Complainant,

)

Pollution

Control Board

)

PCB99-134

)

PEABODY COAL COMPANY, a Delaware

)

corporation,

)

Respondent.

)

PCC’S MOTION FOR

LEAVE

TO SERVE INTERROGATORIES

Respondent, Peabody Coal Company

(“FCC”),

hereby moves the Hearing Officer

pursuant to 35 III. Adm. Code

101.616(b)t

for leave to serve Complainant, People of the State of

Illinois (“State”), its amended third, fourth, fifth and sixth sets of interrogatories to the State,

copies of which are attached hereto as Exhibits A, B, C and D, respectively, for the reasons

discussed fully below. In short, (a) the interrogatories PCC wishes to direct to the State seek

“relevant information and information calculated to lead to relevant information,” in connection

with the issues in this case, and (b) PCC will be materially prejudiced in its ability to develop

and present its defenses to the claims asserted against it by the State in this action if it is not

granted leave to serve those Interrogatories as requested.

INTRODUCTION

The State’s complaint against PCC is 53 pages long, alleges more than

500

violations of

Illinois environmental laws involving five separate chemicals of concern (“COCs”),2 is based

upon PCC’s conduct over a period of more than 40 years, and seeks both a huge civil penalty and

Ill. Adm.

Code

101.616 will be referenced hereafter as Section 101.616.

2 These COCs are sulfates, chlorides, total dissolved solids (TDS

iron, and manganese. (‘mS is not really a

chemical, but it is appropriate to consider TDS as a COC as a matter of convention in this case).

xc.11o1947-r’

2597(3’”

extensive injunctive relief. Given the nature and magnitude of this case as established by the

State, PCC has no alternative hut to vigorously defend itself against the State’s claims.

Litigation of a case of this magnitude and com~lexityis inevitably a major undertaking

that consumes a great deal of every party’s resources. This particular case involves a plethora of

legal and factual issues and disputes between the parties, many of which are far from ordinary.

By its pleadings and other legal papers filed in this case, the discovery requests that it has

directed to PCC, and the parties’ discussions both before and since the State filed this

enforcement case with the Board, the State has made clear its views that this case involves major

transgressions of the Illinois environmental laws, that the alleged violations of those laws by

FCC have had serious environmental consequences, and that PCC should be subjected to

extraordinary penalties and other sanctions for its conduct and the consequences thereof at issue.

It is PCC’s view, however, that many of the violations of law alleged by the State are no such

thing; that in any event FCC’s conduct now complained of was long condoned by the State in

such a manner as to preclude the State from now seeking the imposition of sanctions against

PCC for the consequences of that conduct; that the actual environmental impact of PCC’s

conduct at issue is of little or no practical significance; and that the State’s positions taken in this

case vis-a-vis both FCC’s conduct, the consequences thereof, and what constitutes appropriate

sanctions therefor all are grossly unreasonable when measured against the State’s treatment of

other parties similarly situated to FCC.

Although this case was filed quite sometime ago, it has proceeded slowly to this point.

Indeed, the State did not finalize its formulation of the claims it asserts against PCC in this case

until November 21, 2002, and the issues were not joined in this case by the filing of PCC’s

answer to the State’s complaint until December 20, 2002. In the meantime, the parties have

KC.1101947-t”

2597/3”

conducted some basic discovery in the case by directing interrogatories and requests for the

productionTheofearlydocumentsrounds toofeachdiscoveryother.3

requests directed to the State by FCC in late 1999 and

early 2000 consisted of relatively broad requests for information and documents containing

information regarding the regulation of PCC’s mining and mining-related activities at the

company’s Eagle No. 2 Mine (“Mine”), which is the subject of this proceeding. In that coal

mining has long been highly regulated by the State and that PCC’s mining and mining-related

activities at the Mine have been ongoing since 1968, it is not surprising that the State has

produced a substantial number of documents in response to FCC’s discovery requests to date,

likely totaling more than 20,000 pages.

For its part, the State has directed a substantial number of discovery requests to FCC,

both at the beginning of this case and more recently, most of which seek information or

documents containing information relevant to PCC mining and mining-related activities at the

Mine and the environmental consequences thereof. In response to those requests, PCC has

provided substantive responses to a very large number of interrogatories directed to it by the

State and has produced a substantial number of documents to the State, totaling almost 20,000

pages to date.

Now that the State has set forth the specifics of its claims against PCC and PCC has set

forth the specifics of its defenses to those claims, this case has reached the point where the

parties can reasonably formulate more focused (although not necessarily more limited) discovery

requests to address the claims and defenses thereto now established by the pleadings in this case

PCC also directed some requests for admissions to the State in an effort to most efficiently establish what PCC

considers to be certain basic facts relevant to the issues in this case; but the State has successfully resisted admitting

those matters to date.

KC-110194?-l”

2597/3”

and the issues raised thereby. Accordingly, on May 23, FCC directed four sets of interrogatories

and four sets ofrequests for the production of documents to the State.

The State responded by moving the Hearing Officer for a protective order that would

shield the State from having to provide a substantive response or even a specific objection to any

of these individual discovery requests. As the parties are presently involved in the separate

process of briefing their positions with respect

the State’s Motion For Protective Order, FCC

will not address that motion further here except to note that, as part of its response to the State’s

motion, it withdrew the entirety of all four sets of interrogatories at issue. FCC has now

amended certain of those interrogatories, thereby creating its amended third, fourth, fifth, and

sixth sets of interrogatories directed to the State and now moves the Hearing Officer pursuant to

II.SectionDISCUSSION101.616(b)

for leave to serve those interrogatories upon the State.4

As noted above, this is a big case, with a lot of issues, and a lot at issue for both parties.

It is a fundamental principle that FCC is entitled to a fair and reasonable opportunity to obtain

that information in the possession of the State that will enable FCC to develop and present its

defenses to the State’s claims at the adjudicatory hearing in this matter. The interrogatories that

FCC seeks leave to serve upon the State are critical to that effort; and PCC will be substantially

prejudiced if it is denied the discovery sought thereby.

The

Thirty Interro2atorv Limit Should Not Be Apolied Here.

PCC acknowledges that it seeks leave to serve State with a substantial number of

interrogatories. However, (although FCC does not understand why the State has chosen to make

it so) this is a big case. In addition to the indicators stated above, FCC notes two further relevant

statistics: (1) the State has identified

witnesses, including

opinion witnesses who will be

~PCC has separated its interrogatories into four sets, each of which addresses only a few basic subjects, in order

to make it easier for the State to focus on those particular subjects in responding to the interrogatories.

KC-110t947.i”

2597/3”

called to try to make the State’s case against FCC, and (2) the State has already directed a total of

729 interrogatories to date (by FCC’s count in accordance with Illinois Supreme Rule 213(c)

(“Rule 213(c)”. Neither of these statistics is surprising to FCC, which recognizes that a great

deal of effort is required of the parties in a case like this one both to conduct and to respond to

discovery that is necessary “for the purpose of ascertaining the merits of the case and thus

promoting either oftheir settlement or a fair trial.” Williams v. A. E. Staley Mfg. and Co., 83 111.

2d 559, 566, 416 N.E.2d 252, 256 (1981). Thus, given the basic nature and magnitude of this

case, one must recognize that both parties have good reason, indeed an absolute necessity, to

direct interrogatories to the other party in excess of the “30 interrogatories as a matter of right”

provision ofRule 213(c).

FCC’s request to direct its amended third, fourth, fifth and sixth set of interrogatories to

State stands on its own merits. However, PCC believes that it is important for the Hearing

Officer to understand the background against which FCC directed its original third, fourth, fifth

and sixth set of interrogatories to the State without seeking leave to do so. In short, the State

asserted its blanket objection to those interrogatories as being in excess of the 30-interrogatory

limit; and FCC has withdrawn the interrogatories and has now moved for leave to direct

amended sets to the State. Therefore, it should be unnecessary for the Hearing Officer to resolve

the issues of the whether the parties had an agreement as to this subject and, if so, what the

precise terms of that agreement are in order to rule on FCC’s pending request.

Under these circumstances, PCC believes that at the very beginning of this case the

parties agreed that the 30-interrogatory limit established by 35 III. Adm. Code 101.620(a) and

Rule 213(c) would not apply in this case, given the size of the ease and the myriad of issues that

exist in the case. (Affidavit Of Stephen F. Hedinger Relating To Motion For Leave To Serve

Interrogatories, dated July 14, 2003, ¶ 4) PCC further believes that the parties confirmed that

KC-ltOl947.t~’

25 97/3

agreement in the course of their attorneys’ discussions of the State’s most recent set of

interrogatories directed to FCC. (Affidavit Of W.C. Blanton Relating To FCC’s Motion For

Leave To Serve Interrogatories, dated July 14, 2003, ¶

FCC anticipates the State arguing that the parties never reached any such agreement and

that the State will support its contention in this regard by its lead counsel’s assertions that it is

her practices (1) to memorialize any such agreement in writing, and (2) to agree only to some

specific number of interrogatories, rather than leaving the allowable number open, in any such

agreement. However, the fact is that the State has directed a total of more than 700

interrogatories to FCC

—

even though the State at no time has sought leave of this Board to do

so. Query: Why the State would have so grossly exceeded the 30-interrogatory limit of Rule

213(c) without obtaining leave of the Board if it considered that limit to be applicable?

FCC also anticipates the State arguing any agreements that it reached with FCC regarding

other sets of interrogatories did not include a waiver of the State’s right to invoke the “30

interrogatory limit provision” with respect to interrogatories subsequently directed by

FCC

to the

State. Assuming, arguendo, that this is what the State had in mind when it sent hundreds of

interrogatories to FCC without seeking leave to do so, that clearly was not the understanding of

FCC’s attorneys. It also seems an unlikely proposition for a meeting of the minds of the parties,

in that it means that FCC simply acquIesced in the State propounding hundreds ofinterrogatories

to it, while at the same time foregoing any reciprocal right to exceed the 30-interrogatory limit.

Even assuming for the sake of argument that no express agreement between the parties

was reached in this regard, the State should not be allowed to enforce a 30-interrogatory limit

against FCC in the face of the State having exceeded that limit nearly 25 times over as a matter

of fundamental equity and fairness. This is clearly a goose and gander situation. The State has

KC-IIO1947.1~’

2597/3

already enjoyed the benefit of its interrogatories; it should now be required to address FCC’s

interrogatories on their merits.

The Interrogatories Seek Information

That Is Subject To Discovery.

All of the

FCC

interrogatories seek information that is relevant to one or more issues that

have been raised in this case and/or information that is calculated to lead to such relevant

information. Therefore, unless a particular interrogatory is subject to a valid objection on some

other grounds, the State has an obligation to provide the information sought. Section 101.616(a).

There are five primary issues that have been raised in this case that are addressed by the

FCC interrogatories.5 The first issue is whether Counts II and III of the State’s complaint against

FCC in this case have been brought and are being prosecuted by the Attorney General of Illinois

(“AG”) on his/her own behalf, as the State alleges, or whether instead those Counts actually have

been brought and are being prosecuted by the AG on behalf of the IEPA. The second issue is

how and to what extent has the quality of the groundwater that is the subject of this matter been

adversely affected by COCs generated at PCC’s mine that is the subject of this matter. The third

issue is whether “water pollution” within the meaning of that term as used in the Illinois

Environmental Frotection Act (“Act”) has occurred in the groundwater that is the subject of this

matter and/or whether FCC’s coal mining refuse disposalpractices at the Mine actually have

created a “water pollution hazard” within the meaning of that term as used in the Act as a result

of the generation of COCs at the Mine.6 The fourth issue is closely related to the third issue, j~,

how serious are the alleged exceedances of applicable groundwater quality standards alleged by

These are not all of the issues that have been raised in this case, just the ones relevant to the PCC

interrogatories.

Under Section’12(a) and (d) of the Act, 415 ILCS 5/12(a) and (d), it is not merely the act of introducing a

pollutant into the waters of Illinois that constitutes water pollution. Rather, as defined in the Act, water pollution

is such alteration of the physical, thermal, chemical, biological or radioactive properties of any waters of the State,

or such discharge of any contaminant into any waters of the State, as will or is likely to create a nuisance or render

such waters harmful or detrimental or injurious to public health, safety or welfare, or to domestic, commercial,

KC-11O1947.1’~

2597/3’~

the State, in that not every substance for which a water quality standard has been promulgated

poses the same potential risk of harm to the beneficial uses of groundwater. The fifth (and

broadest) issue is what is an appropriate penalty to be i~nposedupon FCC if the violations of the

Act alleged by the State are found to have been proven, which involves consideration of those

facts relevant

Each ofto thethe

factorsPCC

interrogatoriesto

be consideredhasunderbeen415narrowlyILCS 5/33(c)drawn

toandelicit5/42(h).information7

and/or

documents either relevant to one or more of these issues, relating to some specific relevant

factual topic.8 A chart that identifies the issues or topics as to which each of the FCC

interrogatories addresses is attached as Appendix A. In summary, the FCC interrogatories are

proper as a matter of substance, and FCC doubts that the State will seriously contend otherwise

as to many, if any, of them if it is required to satisfy its general obligation to respond to the

interrogatories.

PCC Will Be Seriously Prejudiced If It Cannot Obtain The Information

Sought By

Its Interrogatories.

Given the nature and magnitude of the claims asserted against

it by the State in this case,

there can be no reasonable dispute of the proposition that FCC will be substantially prejudiced if

it is not permitted to obtain the information sought by the FCC interrogatories and discoverable

under Section 101.616(a). The issues that are addressed by the interrogatories that are the

industrial, agricultural, recreational, or other legitimate uses, or to livestock, wild animals, birds, fish, or other

aquatic life. 415 ILCS 5/3.55.

Certain of the

PCC interrogatories require special comment. First, some of the interrogatories merely seek

information from the State that is exactly the same in nature as that sought by certain of the State s interrogatories to

FCC; these are merely sending the State s interrogatories back to it. Second, several of the interrogatories are stated

so as to seek precisely the same sort of information with respect to each of the five COCs, thereby perhaps giving

the impression that responding to those interrogatories involves five times the effort than is really the case.

The number of interrogatories in question here in large measure reflects the fact that many of these

interrogatories are narrowly drawn to obtain specific and limited information. That is, rather than asking the State to

provide everything it knows about a particular subject or topic via a single broad interrogatory, FCC has created sets

of narrowly focused interrogatories designed to elicit only that information possessed by the State with respect to a

subject or topic of interest that is relevant to one or more issues in this case or is designed to lead to the discovery of

relevant evidence,

KC.11O1947-1~~

2597/3”’

subject of this motion are fundamental and significant in this case. Consequently, FCC is

entitled to obtain the information possessed by the State that is relevant to those issues and that is

likely to lead to other information that is relevant to thbse issues. If FCC is not granted leave to

direct its interrogatories that seek to elicit that information upon the State, its ability to develop

and present its defenses to the State’s claims in this case will be substantially and significantly

compromised.

As To First Issue

The State alone possesses the information that will establish whether Counts H and III of

the State’s Complaint against FCC in this case indeed have been brought and are being

prosecuted by the AG on his/her own behalf, as the State alleges, or whether instead those

Counts actually have been brought and are being prosecuted by the AG on behalf of the IEPA.

Unless FCC can obtain that information through the discovery process in this case, it will be

denied all opportunity to present evidence in support of its contention that the AG and the IEPA

have handled certain of the claims asserted by the State against FCC in this case so as to avoid

those substantive provisions of Section 31 of the Act that the Board has held to be mandatory,

not merely directive, in nature.

As To Second. Third And Fourth Issues

In its Complaint, the State alleges that FCC is responsible for introducing each of the

COCs into groundwater at the Mine in such amounts as to cause concentrations at and near the

Mine to exceed those that the State alleges constitute the applicable water quality standards for

those waters at various locations at various times. The State further alleges in its Complaint both

that this constitutes “water pollution” and that it proves that PCC’s coal mining refuse disposal

practices at the mine, which the State alleges to be the cause of those exceedances, therefore

constituted a threat of water pollution. However, the State’s Complaint does not contain any

KC-1101947.1”

25 97/3”

allegations as to why or how those exceedances have, will, or are likely to create a nuisance or

render the groundwater in question harmful or detrimental or injurious to public health, safety or

welfare, or to any current or potential uses of that water by humans or other species.

FCC obviously cannot defend itself against these State contentions without access to the

information possessed by the State upon which the contentions have been made. Accordingly,

certain of the interrogatories that are the subject of this motion have been drafted to elicit that

information; and FCC will be denied a full and fair opportunity to defend itself against those

contentions unless it is allowed to obtain the information sought by those interrogatories.

As To Fifth

Issue

The most fundamental test of whether State’s contentions regarding the egregiousness of

FCC’s conduct complained of in this matter, the seriousness of the environmental consequences

of that complained-of conduct, the necessity of the remedial action sought by the State with

respect to those environmental conditions that have resulted from FCC’s complained-of

activities, and the severity of the sanctions that State seeks to have imposed upon FCC with

respect to its alleged violations of the Illinois environmental laws is how the State has addressed

those matters with respect to other parties similarly situated to FCC as to these issues. The State

alone possesses the information by which the positions it has asserted in this case can be tested in

this regard. This is not, as FCC expects State to contend, information that is relevant only to

FCC’s now-stricken “equal protection” affirmative defense. Rather, it is information that goes

directly to the heart of fundamental issues in this case relating to the seriousness of FCC’s

alleged offenses and what constitutes an appropriate response by the State to those alleged

offenses.

Many of the interrogatories that are the subject of this motion relate to FCC’s reasonable

contention that the State’s characterizations of PCC’s conduct as egregious and the consequences

KC.1101947.1”

2597(3”

of FCC’s complained-of conduct as constituting serious environmental harm are not consistent

with the State’s responses to prior such conduct on the part of other parties or the similar

consequences of that conduct by other parties.9 Simil&rly, many of the interrogatories that are

subject to this motion relate to FCC’s reasonable contention that the State is seeking sanctions

against FCC in this case that are grossly disproportionate to the sanctions that the State has

sought and that the Board has imposed upon other parties found to have permitted violations that

are similar in nature and environmental consequence as those alleged to have been committed by

FCC

in this case.

There are numerous subjects relevant to FCC’s contention of disparate treatment here.

Some, but not all, of the issues presented in this regard are as follows;

•

whether FCC’s coal mining refuse disposal activities at the Mine are any different

than the disposal activities carried out by other operators during the same time

period;

•

whether the regulatory regime applied to FCC’s coal mining refuse disposal

activities by the State agencies having jurisdiction over those activities differed

from those agencies’ handling of other coal mine operators during the same time

period;

•

whether the generation of COCs at the Mine and the associated release of those

COCs into groundwater at the Mine differed in nature and/or magnitude from the

consequences of other coal mine operators’ activities during the same time period;

•

whether the responses of the responsible State agencies to groundwater conditions

at PCC’s Mine differed from those agencies’ handling of similar situations at

other mines during the same time period;

~ For example, the State has made it clear in this case that it considers FCC s failure to install highly

impermeable liners in the excavations where it disposed of coal mine refuse at the Mine between 1968 and 1993 to

constitute a serious transgression of FCC s responsibilities under the applicable Illinois environmental laws.

However, the State has acknowledged both that no coal mine operator in Illinois installed such a liner for a coal

mine refuse area in Illinois until some time after FCC s coal mine refuse disposal activities at the Mine ceased and

that throughout the entire time period when PCC was disposing of coal mine refuse at the Mine, other Illinois coal

mine operators were disposing of coal mine refuse at their mines in exactly the same manner as FCC was.

Therefore, a number of the interrogatories that are the subject of this motion are designed to elicit information

regarding the State s treatment of those coal mine operators other than FCC in order to test the appropriateness of

the State s treatment of PCC in this case.

ICC.1101947-1”

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•

why did LEPA so radically change its approach to the situation at FCC’s Mine in

the mid-1990’s, compared to the way it was managing the situation at the Mine

for many years prior; and how does that compare to the agency’s approach to

similar situations at other mines during recent years;

•

whether IEFA applied different standards in evaluating FCC’s request for

establishment of a groundwater management zone at the Mine than it has to such

requests made by other parties alleged to have caused violations of Fart 620

groundwater quality standards;

•

whether the State has handled other situations in which concentrations of the

COCs in groundwater that serves as a source of public drinking water compares to

the State’s handling of the groundwater situation at FCC’s Mine,

FCC, of course, has limited information regarding other historical coal mining operations

in Illinois and even less information regarding historical operations of enterprises than coal

mining that

have

resulted in the introduction of contaminants or pollutants into Illinois waters

comparable to that allegedly caused by FCC at the Mine. Similarly, FCC has extremely limited

information available to it regarding either the remedial measures that State has in the past

required of parties found to be responsible for contamination of Illinois groundwater and what

sanctions have been imposed upon such parties. However, the State possesses a wealth of

information regarding these matters, and all of that information satisfies the applicable standard

for discovery in this case. If FCC cannot obtain that information, it cannot prove the validity of

its contentions as to these matters at the adjudicatory hearing in this case. The prejudice to FCC

if it is denied leave to direct interrogatories to the State to offer this information is clear,

As To State-Selected Subjects

A number of the interrogatories that are the subject of this motion seek to elicit the same

information possessed by the State on certain subjects as that which the State has sought to elicit

from FCC via the State’s interrogatories to FCC. As to these interrogatories, it is the State who

has initially deemed the information sought to be relevant. In particular, certain of these

interrogatories seek to elicit the same information possessed by the State with respect to certain

KC.1101947-1”

259713”

aspects of coal mining operations conducted by parties other than FCC as that which the State

has sought from FCC regarding its operations via the State’s interrogatories directed to FCC. By

the mere direction of those interrogatories to FCC, the State has clearly indicated that it considers

FCC’s conduct with respect to these matters to raise grave concerns that must be seriously

addressed.

By its interrogatories directed to the State with respect to these matters, Feabody is

merely seeking to elicit information regarding the issue of whether the State has exhibited

comparably grave concern regarding the conduct of other coal mine operators that is

indistinguishable from FCC’s in this regard. Accordingly, FCC will obviously be prejudiced if it

cannot obtain the information possessed by the Sate on these subjects.

ILL.

CONCLUSION

For the reasons stated above, FCC’s Motion should be granted and FCC should be

granted leave to direct its amended third, fourth, fifth and sixth sets of interrogatories to the State

forthwith.

Date: July 14, 2003

Respectfully submitted,

PEABODY COAL COMPANY

By its attorneys

W.C.

Blanton

C’

/~/n~Z~)

BLACKWELL SANDERS P P

MARTIN LLF

Two Pershing Square, Suite 1000

2300 Main Street

Post Office Box 419777

Kansas City, Missouri 64141-6777

(816) 983-8000 (phone)

(816) 983-8080 (fax)

wblanton@blackwellsanders.com (e-mail)

KC’110t947-1”

2597/3”

2601 South Fifth Street

Springfield, IL 62703

(217) 523-2753 (phone)

(217) 523-4366 (fax)

hedinger@cityscape.net (e-mail)

Stephen F: He4ihger

HEDINGER LAW

OFFICE

KC.11O194l-l’~

259713”

EXHIBIT A

KC.1095228.r

2597/3

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

PEOPLE OF

THE

STATE OF ILLINOIS,

)

Complainant,

)

PCB99-134

)

PEABODY.COAL COMPANY, a Delaware

)

corporation,

)

Respondent.

)

PEABODY’S AMENDED THIRD SET OF JNTERROGATOEJES TO THE

STATE

Respondent, Peabody Coal Company (“PCC”), hereby directs the following

interrogatories to Complainant, People of the State of Illinois (“State”), to be answered within

twenty-eight (28) days ofthe receipt hereof.

INSTRUCTIONS

Unless stated otherwise, provide the information sought by each Interrogatory

with respect to the time period January 1, 1965 to present.

If your answers to these Interrogatories are supported by

(or if

an Interrogatory

inquires as to the existence of) a record of any type, kg., documents, photographs, notes, memos,

statements, investigative journals, complaints, test results, etc., please attach a copy of the same

to your answers identifying which answer each record supports.

These Interrogatories shall be deemed continuing so as to require supplemental

answers if you obtain further or supplemental information between the time answers to the

within Intervogatories arc served and the time of hearing. If for any reason you are unable to

KC-11O3924-1~

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answer any Interrogatory in full, such Interrogatory should be answered to the extent possible

and the reason for the inability to answer in full should be clearly stated.

Verification under oath of all interrogatory responses is required.

With

respect to information which is withheld or not disclosed as requested

pursuant to these interrogatories due to a claim of privilege of non-disclosure, a statement shall

be provided by counsel setting forth as to each such withholding or non-disclosure:

a brief description of the nature and subject matter of and the reason for

withholding or non-disclosure of the information;

the statute, rule, decision or other basis which is claimed to give rise to the

privilege or any other justification for the non-disclosure or withholding of

the requested information.

If you exercise your option under Illinois Supreme Court Rule 213(e) to produce

certain of your business records as your “answer” to

interrogatory set forth below, documents

submitted in response to that request should be produced as they are kept in the usual course of

your business or organized and labeled according to the individual categories of the interrogatory

to which the documents respond. If you choose the latter method, (i) within each group, the

documents should be arranged, to the extent possible, in chronological order, and (ii) if any

document is responsive to more than one category, you may provide a single copy indicating the

categories to which it is responsive, in lieu of providing multiple copies.

It is not PCC’s intention by these interrogatories to seek information that is

protected by the attorney-client privilege or by the work product doctrine. Therefore, all of the

interrogatories below should be construed as consistent with that intention, even if an

interrogatory by its terms could be construed to seek to elicit such information, so that no

KC-11O3924-I~

25971~

objection on those grounds is necessary. However, if you contend that any documents you

possess that contain information responsive to these interrogatories as a matter of substance are

privileged, then prepare a privilege log containing the following information:

the name of the author(s)

the document and the employer of such

author(s);

the name of each recipient ofthe document, including all persons to whom

a copy was sent and persons with knowledge of the contents of the

document, and each recipient’s employer;

the name of each person who participate in the preparation of the

document;

the nature or subject matter of the document;

the date on which the document was first created and the date the

document bears, if different; and

the specific basis for the privilege claimed with respect to the document,

including but not limited to all facts relied upon in support of the claim or

privilege, and the identity of all persons having knowledge of any facts

related to the claim of privilege.

It is not PCC’s intention by these interrogatories to seek information that has

previously been provided by the State in its responses to interrogatories previously directed to it

by PCC. Therefore, all of the interrogatories below should be construed as consistent with that

intention, even if an interrogatory by its terms could be construed to seek to elicit such

information, so that no objection on those grounds is necessary. However,

you contend that

any information sought by any interrogatory below has been previously provided to PCC in

KC-1t03924-1

2597/3

response to an interrogatory previously directed to the State, identify the interrogatory response

by which that information was previously provided to PCC.

DEFINITIONS

As used herein, the words and phrases set out below shall have the meaning or meanings

as follows:

“Act” means the Illinois Environmental Protection Act, 415 JLCS 5/1 ~

(1998).

“Board” means the Illinois Pollution Control Board.

“Attorney General” meansihe Attorney General of the State of Illinois.

“Complaint”

means

the Third Amended Complaint, filed by the State on or about

October 24, 2002.

“District” means the Saline Valley Conservancy District.

“Document” means each writing and record of every type and description in the

possession, control, under contract

with

or by, or in the custody of the State, including,

but

not

limited to, correspondence, memoranda, stenographic or handwritten notes, reports, manifests,

bills of lading, contracts, studies, books, pamphlets, retrievable electronic data, laboratory

analyses, picture or voice recordings, and shall mean a copy where the original is not in control

of the State. The term “document” means and includes each and every medium upon which

information can be printed, or reproduced in any manner by mechanical means, by hand or

otherwise, that is or has been in your possession, custody or control or which will lead to the

discovery of the whereabouts of a responsive document, including logs, e-mail records,

publications, photographs, recordings of every kind or records, transcripts, cover sheets,

transmittal records of meetings, conferences, telephone

other communications, diagrams,

KC-1tO3924-I~

2591/3

charts, computer printouts, pictures, magazines, texts, video or audio tapes, drawings, summaries

of telephone conversations, summaries or reports of investigations or negotiations, and sketches,

every copy of such writing or record where the original is not in your possession, custody or

control, and every copy of such writing or record where such copy contains any commentary or

notations whatsoever that do not appear in the original, and drafts of any

the foregoing.

“Enforcement Action” means any process initiated either by TEPA or the Attorney

General against any person in which that person was alleged to have violated any provision

the Act or the GPA and in which TEPA or the Attorney General at any time sought the imposition

against that person of some sanction authorized by the Act or the GPA.

“Identification” or “identify” means:

As to an individual, stating his or her:

Full and customarily used name or names;

ii.

Present business or residential address; and

iii.

Every title, office, position, or other relationship held with the

State, both currently and during the relevant time period.

As to any “person” other than an individual, stating:

Its legal name and any other names used by it;

ii.

The form or manner of its organization (e.g., partnership,

corporation, etc.); and

iii.

The State of its incorporation (if it is incorporated) and the address

of its principal place of business and identity of its Registered

Agent.

As to a document, stating:

the date of its creation;

ii.

its author or signatory;

iii.

its addressee and any other recipient;

KC-flO3924-1~

25 97/3

iv.

its type or nature (e.g., letter, memorandum, etc.), including its

subject matter (which shall be stated with particularity);

the identity and business or home address of the custodian; and

vi.

the present location ofthe document.

“IDNR” means the Illinois Department of Natural Resources and/or its

predecessor agency.

10.

“GPA” means the Illinois Groundwater Protection Act,

415

ILCS

55/1

1 1.

“IEPA” means the Illinois Environmental Protection Agency and/or its

predecessor agency.

12.

“In the possession of’ means in the physical possession of, or under or subject to

the control of or available to as to matter of

right,

the person

body named or any person or

body subject to the control or direction of such person or body in regard to the record or item

named.

13.

“NOV I” means Notice of Violation M-1997-0001O issued to PCC by IEPA on or

about January 28, 1997.

14.

“NOV II”

means Notice of Violation M-1997-00133 issued to

PCC

by JEPA on

or about December

23, 1997.

15.

“0MM”

means the Office of Mines and Minerals of the IDNR and/or its

predecessor agency.

16.

“FCC”

means Peabody Coal Company, its divisions, subsidiaries, related

companies or corporations, predecessors, successors, and all present and former officers,

directors, agents, attorneys, employees and all

other

persons acting

purporting

to act on

behalf

of them.

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2597/3

17.

“Predecessor agency” means any agency or subdivision of the State of Illinois that

at some point in time prior to the creation of an existing State Agency had substantially the same

responsibilities as the existing State Agency, specifically including responsibility for the matter

that is the subject of a request set forth below.

18.

“Related to” or “relating to” means directly or indirectly, mentioning or

describIng, consisting of, pertaining to, being connected with, reflecting upon, or having any

logical or factual connection with a stated matter.

19.

“Relied upon” means being or having been depended upon or referred to in

relation to the matter at issue.

20.

“State

Agency” means any state agency as that term is defined in 30 ILCS 5/1-7.

21.

“The State” means Complainant, People of the State

Illinois, in the context

references to parties to this case. In all other contexts, “the State” has the same meaning as the

word “you” as defined immediately below.

22.

“WQS” means water quality standard(s).

23.

“You” means the State of Illinois, its agencies, and their respective officers,

agents, employees, representatives, or any other person or persons acting for, or purportedly

acting on behalf of or in concert with them, individually and collectively; and “your” means the

possessive of “you.”

CONSTRUCTION

In construing these requests:

The singular shall include the plural and the plural shall include the

singular;

KC~11O3924-l”~

2597/3

A masculine, feminine or neutral pronoun shall not exclude the other

genders;

The terms “and” as well as “or” shall be construed disjunctively or

conjunctively as “and/or” or as otherwise necessary in order to bring

within the scope of the Interrogatory all responses which might otherwise

be construed to be outside its scope.

It is not PCC’s intention by these Interrogatories to seek information that is

protected by the attorney-client privilege or by the work product doctrine. Therefore, all of the

Interrogatories below should be construed consistent with that intention, even ii an Interrogatory

by its terms could be construed to seek to elicit such information, so that no objection on that

basis is required.

INTERROGATORIIES

INTERROGATORY NO.

1 State the full name, occupation, title and business address

ofthe person or persons providing information in response to these Interrogatories, including all

individuals responding on behalf of any person who is not an individual, and indicate which

person or person answered each Interrogatory.

RESPONSE:

INTERROGATORY NO. :2

State the name, address and phone number of each

witness who will testify on behalf of the State at the hearing of this matter and state the subject

matter of each witness’ testimony.

RESPONSE:

KC-1IO3924-1~

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INTERROGATORY NO. :3

As to any controlled expert witness who will offer

opinion testimony on behalfof the State at the hearing of this matter:

Describe in detail the subject matter on which the witness is expected to

testify;

Provide and describe in detail the conclusions and/or opinions of the

witness and the basis therefore, including reports of the witness, if any;

Describe in detail the qualifications of the witness, and identify whether a

curriculum vitae and/or resume is available for the witness; and

Identify all documents and other things that provide the basis for the

witness’s opinions, or on which the witness relied in developing his or her

opinions.

RESPONSE:

INTERROGATORY NO. 4

As to any independent expert witness who will offer

opinion testimony on behalf

the State at the headng of this matter:

Describe in detail the subject matter on which the witness is expected to

testify;

Provide and describe in detail the conclusions and/or opinions of the

witness and the basis therefore, including reports of the witness, if any;

Describe in detail the qualifications of the witness, and identify whether a

curriculum vitae and/or resume is available for the witness; and

KC-11O3924-t”~

2597/3

Identify all documents and other things that provide the basis for the

witness’s opinions, or on which the witness relied in developing his or her

opinions.

RESPONSE:

INTERROGATORY NO. S

To the extent you have not already done so, state the

names, address and phone numbers of all persons known to the State, other than the individuals

identified in response to the three preceding Interrogatories, who are likely to have discoverable

information relevant to matters at issue in this lawsuit and to all allegations contained within the

Complaint, and include with each a statement of the subject matter of such knowledge.

RESPONSE:

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INTERROGATORY NO. 6

Describe with particularity the relationship between the

State and Thomas A. Prickett with respect to the State’s investigation of the matters that are the

subject of this proceeding, the State’s analysis of the groundwater system near the Mine, the

State’s determination and evaluation of water quality in the groundwater near the Mine, the

State’s prosecution of this action, and any other aspect of this matter; and identify every

document related in any way to the State’s relationship with Mr. Prickett in this regard,

specifically including all reports and other documents prepared by Mr. Prickett on behalf

the

District, the State, or any other person that address in any way any aspect of the matters that are

the subject of the Complaint or otherwise relating in any way to this matter.

RESPONSE:

INTERROGATORY NO. U

Identify all persons acting on behalf of JEPA and all

persons acting on behalf of the Attorney General in connection with IEPA’s referral of NOV I to

the Attorney General.

RESPONSE:

INTERROGATORY NO. 8

Identify all persons acting on behalf of JEPA and all

persons acting on behalf of the Attorney General in connection with IEPA’ s referral of NOV II

to the Attorney General.

RESPONSE:

XC-IlO3924-1’~

25 97/3

INTERROGATORY NO. 9

Identify all persons acting on behalf of JEPA and all

persons acting on behalf of the Attorney General in connection with IEPA’s provision of

documents to the Attorney General relating to the allegations set forth in Count II of the

Complaint.

RESPONSE:

INTERROGATORY NO. 10

Identify all persons acting on behalf of IRPA and all

persons acting on behalf of the Attorney General in connection with JEPA’s provision of

documents to the Attorney General relating to the allegations set forth in Count III of the

Complaint.

RESPONSE:

INTERROGATORY NO. 11

Identify all persons acting on behalf of IEPA and all

persons acting on behalf of the Attorney General in connection with IEPA’s provision of other

documents to the Attorney General relating to the matters that are the subject of the Complaint or

otherwise relating to this matter.

RESPONSE:

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INTERROGATORY NO. 12

Identify all persons acting on behalf of the Attorney

General and all persons acting on behalf of TEPA in connection with the determination by the

State to assert Count II of the Complaint.

RESPONSE:

INTERROGATORY NO. 13

Identify all persons acting on behalf of the Attorney

General and all persons acting on behalf of EPA in connection with the determination by the

State to assert Count III of the Complaint.

RESPONSE:

25 97/3

Date: July 14, 2003

PEABOpY

COAL COMPANY

By its attorneys

AIanton

BLACKWELL SANDERS4’EPER MARTIN LLP

Two Pershing Square, Suite 1000

2300 Main Street

Post Office Box 419777

Kansas City, Missouri 64141-6777

(816) 983-8000 (phone)

(816) 983-8080 (lax)

wb1anton@b1ackwe11sanders.comStephen

ethnger

(e-mail)

HEDINGER LAW

OFFICE

2601 South Fifth Street

Springfield, IL 62703

(217)

523-2753

(phone)

(217) 523-4366

(fax)

hedinger@cityscape.net (e-mail)

KC-liO3924-1~

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EXHIBIT B

KC-1095228.l’

259713

BEFORE

THE

ILLINOIS POLLUTION CONTROL BOAR)

PEOPLE OF

THE STATE OF ILLINOIS,

)

Complainant,

)

PCB99-134

)

PEABODY COAL COMPANY, a Delaware

)

corporation,

)

Respondent.

)

PEABODY’S

AMENDED

FOURTh SET OF INTERROGATORIES TO THE STATE

Respondent, Peabody Coal Company, through its undersigned attorneys, hereby directs

the following interrogatories to Complainant, People of the State of Illinois, to be answered

withh~twenty-eight (28) days of the receipt hereof.

INSTRUCFIONS

Unless stated otherwise, provide the information sought by each Interrogatory

with respect to the time period January 1, 1965 to present.

If your answers to these Interrogatories are supported by (or if an Interrogatory

inquires as to the existence of) a record of any type, ~

documents, photographs, notes, memos,

statements, investigative journals, complaints, test results, etc., please attach a copy of the same

to your answers identifying which answer each record supports.

These Interrogatories shall be deemed continuing so as to require supplemental

answers if you obtain further or supplemental information between the time answers to the

within Interrogatories are served and the time of hearing. If for any reason you are unable to

KC.1lO3925-I”~

25 97/3

answer any Interrogatory in full, such Interrogatory should be answered to the extent possible

and the reason for the inability to answer in full should be clearly stated.

Verification under oath of all interrogatory responses is required.

With respect to information which is withheld or not disclosed as requested

pursuant to these interrogatories due to a claim of privilege of non-disclosure, a statement shall

be provided by counsel setting forth as to each such withholding or non-disclosure:

a brief description of the nature and subject matter of and the ieason for

withholding or non-disclosure of the information;

the statute, rule, decision or other basis which is claimed to give rise to the

privilege or any other justification for the non-disclosure or withholding of

the requested information.

you exercise your option under Illinois Supreme Court Rule 213(e) to produce

certain of your business records as your “answer” to an interrogatory set forth below, documents

submitted in response to that request should be produced as they are kept in the usual course of

your business or organized and labeled according to the individual categories of the interrogatory

to which the documents respond. If you choose the latter method, (i) within each

group,

the

documents should be arranged, to the extent possible, in chronological order, and (ii) if any

document is responsive to more than one category, you may provide a single copy indicating the

categories to which it is responsive, in lieu of providing multiple copies.

It is not PCC’s intention by these interrogatories to seek infdrmation that is

protected by the attorney-client privilege or by the work product doctrine. Therefore, all of the

interrogatories below should be construed as consistent with that intention, even if an

interrogatory by its terms could be construed to seek to elicit such information, so that no

KC-1lO3925.1~

2_597/3

objection on those grounds is necessary. However, if you contend that any documents you

possess that contain information responsive to these interrogatorics as a matter of substance are

privileged, then prepare a privilege log containing the following information:

the name of the author(s) of the document and the employer of such

author(s);

the name of each recipient of the document, including all persons to whom

a copy was sent and persons with knowledge of the contents of the

document, and each recipient’s employer;

the name of each person who participate in the preparation of the

document;

the

nature or subject matter of the document;

the date on which the document was first created and the date the

document bears, if different; and

the

specific basis for the privilege claimed with respect to the document,

including but not limited to all facts relied upon in support of the claim or

privilege, and the identity of all persons having knowledge of

any

facts

related to the claim

privilege.

is not PCC’s intention by these interrogatories to seek information that has

previously been provided by the State in its responses to interrogatories previously directed to it

by PCC. Therefore, all of the interrogatories below should be construed as consistent with that

intention, even

an interrogatory by its terms could be construed to seek to elicit such

information, so that no objection on those grounds is necessary. However, if you contend that

any information sought by any interrogatory below has been previously provided to PCC in

KC-1W3925-1~

2597/3

response to an interrogatory previously directed to the State, identify the interrogatory response

by which that information was previously provided toPCC.

DEFINITIONS

As used herein, the words and phrases set out below shall have the meaning or meanings

as follows:

“Act”

means the Illinois Environmental Protection Act, 415

ILCS

5/1 et seq.

(1998).

“Board” means the Illinois Pollution Control Board.

“Chemical of concern” means chloride, iron, manganese, sulfate, or TDS.

“Coal mining” or “Mining of coal” means the excavation and extraction of natural

underground coal deposits by the use of any mechanical operation.

“Coal mining refuse” means gob, coal, rock, slate, shale, mill tailings, boney,

clay, pyrites and other uninerchantable solid or slurry material intended to be discarded which is

connected with the cleaning and preparation of mined materials at a preparation plant or

washery.

“District” means the Saline Valley Conservancy District.

“District’s Production Wells” means those wells designated by the District as

Well No. 1, Well No. 2, Well No. 3, Well No. 4, Well No.

and Well No. 6, located in Gallatin

County, Illinois by which the District extracts or formerly extracted groundwater which is

processed at its treatment facility for distribution to its customers.

“Document” means each writing and record of every type and description in the

possession, control, under contract with or by, or in the custody of the State, including, but not

limited to, correspondence, memoranda, stenographic or handwritten notes, reports, manifests,

KC-1103925.1”

2597/3

bills of lading, contracts, studies, books, pamphlets, retrievable electronic data, laboratory

analyses, picture or voice recordings, and shall mean a copy where the original is not in control

of the State. The term “document” means and includes each and every medium upon which

information can be printed, or reproduced in any manner by mechanical means, by hand or

otherwise,

that is or has been in your possession, custody or control or which will lead to the

discovery of the whereabouts of a responsive document, including logs, e-mail records,

publications, photographs, recordings of every kind or records, transcripts, cover sheets,

transmittal records of meetings, conferences, telephone or other communications, diagrams,

charts, computer printouts, pictures, magazines, texts, video or audio tapes, drawings, summaries

of telephone conversations, summaries or reports of investigations or negotiations, and sketches,

every copy of such writing or record where the original is not in your possession, custody or

control, and every copy of such writing or record where such copy contains any commentary or

notations whatsoever that do not appear in the original, and drafts of any of the foregoing.

“Finished water” means water distributed to a public water supply operator’s

customer.

10.

“GPA” means the Illinois Groundwater Protection Act, 415 ILCS 55/1 ~i seq.

1 1.

“Groundwater” means any groundwater as that term is defined in 415 ILCS

55/3(g).

12.

“Identification” or “identify” means:

As to an individual, stating his or her:

Full

and customarily used name or names;

ii.

Present business or residential address; and

iii.

Every title, office, position, or other relationship held with the

State,

both currently and during the relevant time period.

KC.I IO3925-r~

2597)3

As to any “person” other than an individual, stating:

Its

legal name and any other names used by it;

ii.

The form or manner of its organization (e.g., partnership,

corporation, etc.); and

iii.

The State of its incorporation (if it is incorporated) and the address

of its principal place of business and identity of its Registered

Agent.

As to a document, stating:

the date

its creation;

ii.

its author or signatory;

iii.

its addressee and any other recipient;

iv.

its type or nature (e.g., letter, memorandum, etc.), including its

subject matter (which shall be stated with particularity);

the identity and business or home address of the custodian; and

vi.

the present location of the document.

13.

“IDNR” means the Illinois Department of Natural Resources and/or its

predecessor agency.

14.

“IEPA” means the Illinois Environmental Protection Agency and/or its

predecessor agency.

15.

“In the possession of’ means in the physical possession of, or under or subject to

the control of or available to as to matter of right, the person or body named or any person or

body subject to the control or direction

such person or body in regard to the record or item

named.

16.

“Mine” means PCC’s Eagle No. 2 Mine, an underground coal mine, including the

surface area thereof, located approximately one mile northwest of Shawneetown, Illinois in

Gallatin County, Illinois.

XC-1103925-1”

2597/3

17.

“Near the Mine” means two miles or less in distance from any property boundary

of the Mine.

18.

“0MM” means the Office of Mines and Minerals of the IDNR and/or its

predecessor agency.

19.

“Part 620 Standards” means the WQS established by

III. Adm. Code,

Subtitle C, Part 620, Subpart D.

20.

“PCC” means Peabody Coal Company, its divisions, subsidiaries, related

companies or corporations, predecessors, successors, and all present and former officers,

directors, agents, attorneys, employees and all other persons acting or purporting to act on behalf

ofthem.

21.

“Person” means any person as that term is defined in Section 3.26 of the Act, 415

ILCS 5/3.26 (1998).

22.

“Predecessor agency” means any agency

subdivision of the State of Illinois that

at some point in time prior

the creation of an existing

State

Agency had substantially the same

responsibilities

the existing

State

Agency, specifically including responsibility for the matter

that

is the

subject

of a request set forth below.

23.

“Raw water” means groundwater extracted by the District’s Production Wells

prior to any treatment.

24.

“Refuse disposal area” means any land used for dumping, storage or disposal of

coal refuse which is intended to serve as permanent disposal of such material.

25.

“Related to” or “relating to” means directly or indirectly, mentioning or

describing, consisting of, pertaining to, being connected with, reflecting upon, or having any

logical or factual connection with a stated matter.

KC-1tO3925-1~

2597/3

26.

“Relied upon” means being or having been depended upon or referred to in

relation to the matter at issue.

27.

“State Agency” means any state agency as that term is defined in 30 ILCS 5/1-7.

28.

“TDS” means total dissolved solids.

29.

“The State” means Complainant, People of the State of illinois, in the context of

references to parties to this case. In all other context, “The State” has the same meaning as the

word “you” as defined immediately below.

30.

“Treatment Facility” means the District’s facility located in Shawneetown, Illinois

at which

water

obtained by the operation of the District’s production wells is

treated

prior to its

distribution to the District’s customers.

31.

“WQS” means water quality standard(s).

32.

“You” means the State of Illinois, its agencies, and their respective officers,

agents, employees, representatives, or any other person or persons acting for, or purportedly

acting on behalf of or in concert with them, individually and collectively; and “your” means the

possessive of “you.”

CONSTRUCTION

In construing these requests:

The singular shall include the plural and the plural shall include the

singular;

A masculine, feminine or neutral pronoun shall not exclude the other

genders;

The terms “and” as well as “or” shall be construed disjunctively or

conjunetively as “and/or” or as otherwise necessary in order to bring

KC-11O3925-V~

2597/3

within the scope of the Interrogatory all responses which might otherwise

be construed to be outside its scope.

It is not PCC’s intention by these Interrogatories to seek information that is

protected by the attorney-client privilege or by the work product doctrine. Therefore, all of the

Interrogatories below should be construed consistent with that intention, even

an Interrogatory

by its terms could be construed to seek to elicit such information, so that no objection on that

basis is required.

D4TERROGATORJES

INTERROGATORY NO. t

State

the full name, occupation, title and business address

of the person or persons providing information in response to these interrogatories, including all

individuals responding on behalf of any person who is not an individual, and indicate which

person or person answered each interrogatory.

RESPONSE:

INTERROGATORY NO.

2 To the extent you have not already done so, state with

specificity all possible adverse health effects caused by the ingestion of drinking water

containing sulfates, and for each such possible adverse health effect stated, further state the

concentrations of sulfates in drinking water at which the possible adverse health effect may

occur, and identify each document and other source of information upon which your answer is

based.

RESPONSE:

KC.I IO3925.1~

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INTERROGATORY NO.

3 To the extent you have not already done so, state with

specificity all possible adverse health effects caused by the ingestion of drinking water

containing chlorides, and for each such possible adverse health effect stated, further state the

concentrations of chlorides in drinking water at which the possible adverse health effect may

occur, and identify each document and other source of information upon which your answer is

based.

RESPONSE:

INTERROGATORY NO. 4

To the extent you have not already done so, state with

specificity

all

possible adverse health effects caused by the ingestion of drinking water

containing TDS, and for each such possible adverse health effect stated, further state the

concentrations of TDS in drinking water at which the possible adverse health effect may occur,

and identify each document and other source of information upon which your answer is based.

RESPONSE:

INTERROGATORY NO.

To the extent you have not already done so, state with

specificity

all

possible adverse health effects caused by the ingestion of drinking water

containing iron, and for each such possible adverse health effect stated, further state the

concentrations of iron in drinking water at which the possible adverse health effect may occur,

and identify each document and other source of information upon which your answer is based.

RESPONSE:

KC-lIO3925~1~

2597/3

INTERROGATORY NO. 6 To the

extent you have not already done so, state with

specificity all possible adverse health effects caused by the ingestion of drinking water

containing manganese, and for each such possible adverse health effect stated, further state the

concentrations of manganese in drinking water at which the possible adverse health effect may

occur, and identify each document and other source of information upon which your answer is

based.

RESPONSE:

INTERROGATORY NO. 7

Identify all publications not previously produced issued

by a State Agency and all other documents not previously produced either created by or

otherwise in the possession of a State Agency that contain summaries of water quality data

pertaining to groundwater that constitutes a public water supply source in Illinois.

RESPONSE:

INTERROGATORY NO. 8

Identify all other publications not previously produced

issued by a State Agency and all other documents not previously produced either created by or in

the possession of a State Agency that contain summaries of Illinois groundwater quality data.

RESPONSE:

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INTERROGATORY NO.

9 Has the State made any effort to determine the direction

and/or rate of groundwater flow near the Mine? If. so, state each determination, identify each

person involved in the process of each such determination being made, and state the bases for

each such determination. To the extent you have not already done so, identify the owner,

location, and date of installation of each welt formerly or currently in existence near the Mine.

For each such well, state the purpose of the well and state all water quality data obtained by

analyses of samples of groundwater obtained from the well.

RESPONSE:

INTERROGATORY NO. 10

State the background level of sulfates in groundwater

near and upgradient from the Mine near the Mine and state with specificity the basis for your

answer.

RESPONSE:

INTERROGATORY NO. 11

State the background level of chlorides in groundwater

near and upgradient from the Mine near the Mine and state with specificity the basis for your

answer.

RESPONSE:

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INTERROGATORY NO. 12

State the background level of TDS in groundwater near

and upgradient from the Mine near the Mine and state with specificity the basis for your answer.

RESPONSE:

INTERROGATORY NO. 13

State the background level of iron in groundwater near

and upgradient from the Mine near the Mine and state with specificity the basis for your answer.

RESPONSE:

INTERROGATORY NO.

14 State the background level of manganese in groundwater

from the Mine near and upgradient from the Mine near

the

Mine and state with specificity the

basis for your answer.

RESPONSE:

INTERROGATORY NO. 15

What are the uses and potential uses of groundwater

located at and near the Mine?

RESPONSE:

INTERROGATORY NO. k6

For each use and potential use of the groundwater

located at and near the Mine identified in your answer to Interrogatory 15, state whether that use

has been precluded, adversely affected, or threatened to be adversely affected by sulfates

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generated within a coal mining refuse disposal area at the Mine. II your answer to the this

Interrogatory is affirmative, state specifically all facts upon which your answer is based.

RESPONSE:

INTERROGATORY NO. k7 For each use and

potential use of the groundwater

located at and near the Mine identified in

your answer to Interrogatory

15,

state

whether that use

has been

precluded, adversely affected, or

threatened to be

adversely affected by chlorides

generated within a coal mining refuse disposal area at the Mine, If your answer to the this

Interrogatory is affirmative, state specifically all facts upon which your answer is based.

RESPONSE:

INTERROGATORY NO. 18 For each use and

potential use of the groundwater

located at and near the Mine identified in

your

answer to

Interrogatory

15, state whether that use

has been

precluded, adversely

affected, or threatened to be

adversely

affected

by TDS generated

within a coal

mining refuse disposal area at the Mine. If your

answer to the this

Interrogatory is

affirmative, state

specifically all facts upon which your answer

is based.

RESPONSE:

INTERROGATORY NO. t9 For each use and

potential use of the groundwater

located at and near the Mine identified in your answer to Interrogatory 15, state whether that use

has been precluded, adversely affected, or threatened to be adversely affected by iron generated

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within a coal mining refuse disposal area at the Mine. If your answer to the this Interrogatory is

affirmative, state specifically all facts upon which your answer is based.

RESPONSE:

INTERROGATORY NO. 20 For each use and

potential use of the groundwater

located at and neat the

Mine identified in your

answer to

Interrogatory

15, state whether that use

has been

precluded, adversely

affected, or threatened to be

adversely affected by manganese

generated within a coal mining refuse disposal area at the Mine. If your answer to the this

Interrogatory is affirmative, state specifically all facts upon which your answer is based.

RESPONSE:

INTERROGATORY NO.

21 Identify each document not previously produced that

contains information

regarding the possible

adverse health effects of sulfates relied

upon by the

Board in connection with its

promulgation

of the Part 620 Standards.

RESPONSE:

INTERROGATORY NO.

22 Identify each other document not previously produced

that contains information regarding the possible adverse health effects of sulfates relied upon by

the Board in connection with its promulgation of the Part 620 Standards.

RESPONSE:

ICC-I 103925-t”

25 97/3

INTERROGATORY NO. 23

Identify each document not previously produced that

contains information regarding the possible adverse health effects of chlorides considered by the

Board

in connection with its promulgation of the Part 620 Standards.

RESPONSE:

INTERROGATORY NO. 24

Identify each document not previously produced that

contains information regarding the possible adverse health effects of chlorides relied upon by the

Board in connection with its promulgation of the Part 620 Standards.

RESPONSE:

INTERROGATORY NO.

Identify each document not previously produced that

contains information regarding the possible adverse health effects of

TDS

considered by the

Board in connection with its promulgation ofthe Part 620 Standards.

RESPONSE:

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INTERROGATORY NO.

26 Identify each document not previously produced that

contains information regarding the possible adverse health effects of TDS considered by the

Board in connection with its promulgation of the Part 620 Standards.

RESPONSE:

INTERROGATORY NO. 2? Identify each document not previously produced relied

upon by the Board in evaluating the technical feasibility and economic reasonableness of coal

mine operators complying with the Part 620 Standards in light of existing physical conditions at

and near existing coal mine refuse disposal areas.

RESPONSE:

INTERROGATORY NO. 28 Has the District

at any time treated raw water obtained

from its production wells by any method that results in an increased concentration of sulfates in

the District’s finished water as compared to that existing in the pm-treated raw water? If so,

describe each such method and state when each such method was employed by the District and

describe any action taken by the State to monitor, prohibit, or limit the District’s treatment

method in this regard.

RESPONSE:

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Date:

July 14, 2003

PEABODY

COAL COMPANY

By its attorneys

W. C. Blanton

~fy

S~4C

BLACKWELL SANDERS PEPER MARTIN LU’

Two Pershing Square, Suite 1000

2300 Main Street

Post Office Box 419777

Kansas City, Missouri 64141-6777

(816) 983-8000 (phone)

(816) 983-8080 (fax)

wblanton@bIackwellsanders.com (e-mail)

Stephen

Fledinger

HEDINGER LAW

OFFICE

2601 South Fifth Street

Springfield, IL 62703

(217)

523-2753

(phone)

(217)

523-4366

(fax)

hedinger@cityscape.net (e-mail)

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EXHIBIT C

ICC.2095222-1”

2597/3

BEFORE TUE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF

THE STATE

OF ILLINOIS,

)

Complainant,

)

PCB99-134

)

PEABODY COAL COMPANY, a Delaware

)

corporation,

)

Respondent.

)

PEABODY’S

AMENDED

FIFTH SET OF INTERROGATORIES TO THE STATE

Respondent, Peabody Coal Company, through its undersigned attorneys, hereby directs

the following interrogatories to Complainant, People of the State of Illinois, to be answered

within twenty-eight (28) days of the receipt hereof.

INSTRUCTIONS

Unless stated otherwise, provide the information sought by each Interrogatory

with respect to the time period January 1, 1965 to present.

If your answers to these Interrogatories are supported by (or

an Interrogatory

inquires as to the existence of) a record of any type, ~

documents, photographs, notes, memos,

statements, investigative journals, complaints, test results, etc., please attach a copy of the same

to your answers identifying which answer each record supports.

These Interrogatories shall be deemed continuing so as to require supplemental

answers if you obtain further or supplemental information between the time answers to the

within Interrogatories are served and the time of hearing. If for any reason you are unable to

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answer any Interrogatory in full, such Interrogatory should be answered to the extent possible

and the reason for the inability to answer in full should be clearly stated.

Verification under oath of all interrogatory responses is required.

With respect to information which is withheld or not disclosed as requested

pursuant to these interrogatories due to a claim of privilege of non-disclosure, a statement shall

be provided by counsel setting forth as to each such withholding or non-disclosure:

a brief description of the nature and subject matter of and the reason for

withholding or non-disclosure of the information;

the statute, rule, decision or other basis which is claimed to give rise

to the

privilege or any other justification for the non-disclosure or withholding of

the requested information.

If you exercise your option under Illinois Supreme Court Rule 213(e) to produce

certain of your business records as your “answer” to an interrogatory set forth below, documents

submitted in response to that request should be produced as they are kept in the usual course of

your business or organized and labeled according to the individual categories of the interrogatory

to which the documents respond. If you choose the latter method, (i) within each group, the

documents should be arranged, to the extent possible, in chronological order, and (ii)

any

document is responsive to more than one category, you may provide a single copy indicating the

categories to which it is responsive, in lieu ofproviding multiple copies.

It is not PCC’s intention by these interrogatories to seek infoimation that is

protected by the attorney-client privilege or by the work product doctrine. Therefore, all of the

interrogatories below should be construed as consistent with that intention, even if an

interrogatory by its terms could be construed to seek to elicit such information, so that no

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objection on those grounds is necessary. However, if you contend that any documents you

possess that contain information responsive to these interrogatories as a matter of substance are

privileged, then prepare a privilege log containing the following information:

the name of the author(s) of the document and the employer of such

author(s);

the name of each recipient of the document, including all persons to whom

a copy was sent and persons with knowledge of the contents of the

document, and each recipient’s employer;

the name of each person who participate in the preparation of the

document;

the nature or subject matter ofthe document;

the date on which the document was first created and the date the

document bears,

different; and

the specific basis for the privilege claimed with respect to the document,

including but not limited to all facts relied upon in support of the claim or

privilege, and the identity of all persons having knowledge of any facts

related to the claim ofprivilege.

It is not PCC’s intention by these interrogatories to seek information that has

previously been provided by the State in its responses to interrogatories previously directed to it

by PCC. Therefore, all of the interrogatories below should be construed as consistent with that

intention, even if an interrogatory by its terms could be construed to seek to elicit such

information, so that no objection on those grounds is necessary. However,

you contend that

any information sought by any interrogatory below has been previously provided to PCC in

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response to an interrogatory previously directed to the State, identify the interrogatory response

by which that information was previously provided to. PCC.

DEFIMTIONS

As used herein, the words and phrases set out below shall have the meaning or meanings

as follows:

“Act” means the Illinois Environmental Protection Act, 415 ILCS 5/1 et ~q±

(1998).

“Board” means the Illinois Pollution Control Board.

“Another Mine” means a coal mine in Illinois other than the Mine.

“Another Operator” means an operator ofa coal mine in Illinois other than PCC.

“Chapter 3” means Chapter 3: Water Pollution Control Rules and Regulations of

the Illinois Pollution Control Board, both as originally promulgated on March 7, 1972, and as

amended from time to time thereafter through June 21, 1982.

“Coal mining” or “Mining of coal” means the excavation and extraction of natural

underground coal deposits by the use of any mechanical operation.

“Coal mining refuse” means gob, coal, rock, slate, shale, mill tailings, boney,

clay, pyrites and other unmerchantable solid or slurry material intended to be discarded which is

connected with the cleaning and preparation of mined materials at a preparation plant or

washery.

“Complaint” means the Third Amended Complaint, filed by the State on or about

October 24, 2002.

“Corrective Action Plan” means any corrective action plan or process proposed to

or considered by JEPA pursuant to

Iii. Adm. Code

620.250.

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10.

“Document” means each writing and record of every type and description in the

possession, control, under contract with or by, or in jhe custody of the State, including, but not