RECE1VE~

Cl

ERK’S OFr!(~P

BEFORE THE ILLINOIS POLLUTION CONTROL BOAR)

AUG

2

02003

PEOPLE OF TIlE STATE OF ILLINOIS,

)

STATE OF IWNOIS

/

Pollution

Control Board

Complamants,

)

)

PCB#01-07

vs.

)

(Enforcement-Air)

)

QC FiNISHERS, INC., an Illinois Corporation,)

)

Respondent.

)

NOTICE OF FILING

To:

Ms. Paula Becker Wheeler

Assistant Attorney General

Office ofthe Attorney General

188 West Randolph Street, 20th Floor

Chicago, Illinois

60601

Mr. Bradley Halloran

Hearing Officer

Illinois Pollution ControlBoard

James R. Thompson Center, Suite

11-500

100

W. Randolph Street

Chicago, Iffinois

60601

PLEASE TAKE NOTICE that I havetoday filed with the persons listed above a copy of

RESPONDENT’S RESPONSE

TO MOTION TO

QUASH

SUBPOENA on behalfof

QC Finishers, Inc., a copy ofwhich is hereby served upon you.

Respectfully submitted,

Heidi E. Hanson

Dated

August

15,

2003

Heidi E. Hanson

H. E.

Hanson, Esq. P.C.

4721

Franklin Aye, Suite

1500

Western Springs, IL 60558-1720

(708) 784-0624

---

RECEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLERK’S

OFFfr~

PEOPLE OF

THE STATE OF ILLiNOIS,

)

14UG

2

()

2003

)

STATE OF ILLINOIS

Complainants,

)

Pollution

Control

Board

)

PCB#01-07

vs.

)

(Enforcement-Air)

)

QC FiNISHERS,

INC., an Illinois

Corporation,)

)

Respondent.

)

RESPONDENT’S RESPONSE

TO MOTION

TO QUASH SUBPOENA

NOW COMES Respondent, QC Finishers, Inc. by and through its attorney, H. E.

HANSON ESQ. P.C. and for its RESPONSE TO MOTION TO QUASH SUBPOENA

states as follows:

1.

On July

25,

2003 Complainant filed a Motion to

Quash a subpoena for

deposition directed to Ms. Crystal Myers-Wilkins.

2.

Pursuant to the July

17, 2003

Hearing Officer order in this case the date for

filing a response to that Motion was extended until August

15,

2003.

3.

Ms. Myers-Wilkins has been involved in discussions and correspondence

regarding

Q

C Finishers, Inc.

beginning on or before February of2000.

She has been

involved in permit and technical issues as well as being the IEPA attorney assigned to this

matter.

(See Attachment

1, Ms. Myers Wilkins Affidavit, Attachment 2, a letter from Ms.

Myers Wilkins regarding calibration ofemission monitors,

and Attachment 3, a “sign-in”

sheet for a meeting on a monitoring issue which involved three unrelated companies.)

4.

The basis for Complainant’s motion

is that because Ms. Myers-Wilkins is

an attorney and is employed by the Illinois Environmental Protection Agency all ofher

knowledge regarding this case is either irrelevant, attorney-client privileged, or subject to

the work product doctrine.

5.

Complainant offers no

evidence whatsoever, for its assertion that Ms.

Myers-Wilkins knows nothing that would be

discoverable.

6.

The Illinois Pollution Control Board rejected the Illinois Attorney General’s

previous attempt to insulate

state attorneys from the Board’s discovery process.

In

Theresa Castellari et al v. John Prior, PCB 86-79, 1987

III. ENV LEXIS 311

(May 28,

1987), then Assistant Attorney General, Joe Madonia, was subpoenaed to a Board

Hearing.

He moved to quash on the grounds that he had no personal knowledge ofthe

violations and that any other relevant knowledge was privileged under the attorney-client

1

---

privilege, workproduct doctrine or aspart ofsettlement discussions.

The Hearing Officer

denied the motion to

quash stating that “Madonia could make specffic objections to

questions dealing with privileged informationwhen he testified.”

Madonia then walked

out ofthe hearing in apparent defiance ofthe Hearing Officer’s order.

Respondent made

an offer ofproof“as to what he had expected Madonia to testif~r

to”, which offer was

accepted by the Hearing Officer and later by the Board.

Castellari, at

*38...42.

7.

With regard to the relevance ofMs. Myers-Wilkins testimony the

Complainant has asserted (Motion, para. 9), that “Crystal Myers-Wilkins is not a expert

in

the areas alleged as violations in the complaint therefore any testimony by her to this

issue

would be irrelevant.”

8.

This misstates the applicable

standard in a number ofrespects.

a.

Nowhere

in the Board rules,

or the

applicable court rules,

does it state

that only the knowledge ofexperts can be relevant or that

discovery must

be limited to

expert knowledge.

b.

Even if her testimony were

shown to be irrelevant that alone would not

provide support

to

quash a

subpoena

for

deposition.

Board

rule,

35

Ill.

Adm.

Code

101.616(e)

states that

“...it

is not

a ground for objection that

the testimony ofa deponent or person interrogated will be

inadmissible at

hearing,

if

the

information

sought

is

reasonably

calculated

to

lead

to

relevant information.”

c.

The “areas alleged as violations” are not the only matters

at issue in this

proceeding.

The Board

will

also

consider the

factors

listed

in

415

ILCS

5/33(c)

and

42(h)

at

the hearing,

therefore

information

relating

to

those

issues will also be relevant.

9.

Ms. Myers-Wilkins knowledge ofthe circumstances of

Q

C Finishers

is

clearly relevant for purposes ofdiscovery in that:

a.

She has been involved

in

a

variety of issues relating to

Q

C

Finishers,

including technical and permit issues.

(See

Attachments 2 and 3).

b.

She

signed

the

affidavit

supporting

Complainant’s

response

to

the

Request

for

Production

stating

that

“to

the

best

of my

knowledge

and

belief,

that

Plaintiffs

sic

responses

to

the

Respondent’s

Request

for

Production are responsive

and

complete.

I can further

state that,

to

the

best of my knowledge and belief, that the facts set forth in the responses to

the

Respondent’s

Interrogatories

are

true,

accurate

and

complete.”

(Attachment

1).

Ms.

Myers-Wilkins was the only affidavit supporting

the

responses relating to the underlying issues.

(Another affidavit was offered

to

support penalty calculations only.)

2

---

c.

In

Complainant’s

Response

to

Interrogatories.

and

Request

for

Production

Ms.

Myers-Wilkins’

was

the

only

IEPA

employee

listed

as

having been

involved

in

responses to

Interrogatories

1

through 24.

(See

pages

7

and

8

of

the

Complainant’s

Response

to

Interrogatories

and

Request for Production,

attached hereto as Attachment 4).

If she in fact

had no

relevant

knowledge the

Complainant’s response

to

interrogatories

would be

grossly inadequate and

improper pursuant

to

35

III Adm..

Code

101.620(b).

10.

Complainant failed to

show that Ms. Myers-Wilkins possesses no relevant

knowledge, instead her long term involvement with the

Q

C Finishers matter and permits,

and her answers in support ofdiscovery, mandate the opposite conclusion.

11.

Complainant has also

asserted that Respondent has other potential

witnesses available.

Motion para.

8.

The fact that other witnesses are later made available

for deposition does not serve as a reason to

quasha subpoena., especially given the fact

that it was Ms. Myers-Wilkins who provided discovery responses.

12.

The argument that all ofMs. Myers-Wilkins knowledge is attorney-client

privileged and/or subject to the work product doctrine, is also unsupported.

13.

In May ofthis year the Illinois Supreme Court reiterated the elements of

attorney client privilege as “(1) where legal advice ofany kind is sought, (2) from a

professional legal advisor in his capacity as such, (3) the communications relating to that

purpose, (4) made

in confidence,

(5)

by the client, (6) are permanently protected, (7) from

disclosure by himselfor the

legal advisor, (8) except protection be waived.”

Illinois

EducationAssociation v.

Illinois

State Board ofEducation, 791 N. E 2d 522, 2003 Ill

Lexis 783 at *1748, 274 III Dec. 430 (May 22, 2003).

14.

The work product doctrine as codified in Supreme Court Rule 201(b)(2)

requires that to qualify as workproduct, material must be prepared by or for a party in

preparation for trial and must contain or disclose the theories, mental impressions or

litigation plans ofthe

party’s attorney.

15.

Neither description ofthe necessary elements support the inference that

Complainant tries to draw

-

that all knowledge and communications by an attorney are

automatically privileged.

16.

Complainant has simply not shown that the necessary elements ofthe

privilege and doctrine have been met.

It has also failed to support its claim as required by

Supreme Court Rule 20 1(n).

17.

The Illinois Supreme Court, in Illinois Education Association, 2003

III.

LEXIS 783

at

*22, in the context ofa FOIA request, recently, and vehemently, dealt with

a similar attempt to invoke the attorney-client privilege by name only.

3

---

“...the burden is on the public body to

demonstrate that the attorney- client

exemption of section 7(1)(b)

is applicable.

But in

meeting

its

burden the

public

body may not

simply treat

the words

“attorney-client

privilege” or

“legal advice” as some talisman, the mere utterance ofwhich magically cast

a spell ofsecrecy over the documents at

issue.

Rather the

public body can

meet

its

burden

only

by

providing

some

objective

indicia

that

the

exemption is applicable under the circumstances.”

18.

The court went onto state that affidavits supporting a claim ofthe

privilege should “show with reasonable specificity why the documents fall within the

claimed exemption and are sufficient to allow adversarial testing.”

Id at *22.

19.

The attorney-client privilege and the workproduct doctrine also presume

as an essential element that confidentialityhas been maintained and not waived, but the

fact that Ms. Myers Wilkins has been personally involved

in discussions and

correspondence with

Q

C Finishers and other parties on related matters (attachments #2

and #3) shows that she must possess at least some knowledgethat

is not confidential, or

for which confidentiality has beenwaived, because she has already shared her knowledge

with

Q

C Finishers.

20.

The fact alone that Ms. Myers-Wilkins’ affidavit was offered in support of

discovery responses will also serve to illustrate the absurdity ofthe allegation that she

knew nothing ofrelevance and that anything that she does know is confidential.

21:

In conclusion, Complainant’s argument that Ms.

Myers-Wilkins has no

discoverable knowledge must fall in light ofthe fact that her knowledge has already been

offered in support ofdiscovery and has beenshown to cover areas other than litigation

plans and legal advice.

Complainant has failed to support, or prove the elements of, the

privileges that it has asserted.

Both the Board and the Supreme Court have rejected

attempts to

assert similar, blanket, unsupported privileges.

WHEREFORE,

Respondent respectfully requests that the Motion to quash be denied and

that the deposition ofMs.

Myers Wilkins be allowed to proceed.

Respectfully submitted,

QC FINISHERS, INC.

Date

August

15, 2003

Heidi E. Hanson

By: its

attorney,

H. E. Hanson Esq.

P.C.

H. E. Hanson, Esq. P.C.

Heidi E. Hanson

4721

Franklin Aye, Suite 1500

Western Springs, IL 60558-1720

(708) 784-0624

4

---

STATE

OF

ILLINOIS

COUNTY OF SANGAMON

.

.i&.

AFFIDAVIT

I, Crystal Myers-Wilkins, being first duly sworn, depose

and

statethat the

following statements set forth in this instrument are true

and

correct, except as to matters

therein statedto on

information and

belief

and,

as to such matters, theundersigned

certifies that she believes the same to be true:

1.

I am an Assistant Counsel employed

with

theillinois Environmental Protection

Agency’s

(“illinois

EPA”) Division ofLegal Counsel.

My workresponsibilities

are

primarily devoted to enforcement-related tasks

and

assignments relatingto airpollution

enforcement cases initiated by the illinois EPA’s Bureauof

AirfDivision

ofAirPollution

Control.

2.

As part ofmy responsibilities as an enforcement attorney, I am familiarwith the

matter involving thePEOPLE OF THE STATE OF ILLINOIS vs. QC

FINISHERS,

INC.,

an illinois Corporation, PCB No. 01-07, filed before the Illinois Pollution Control

Board and, further,

I assisted inthe related

preparation

ofthe

illinois

EPA’s formal

enforcementreferral to the Office

of

the illinois Attorney General.

3.

Ihave read the Respondent’s Interrogatories

and

RequestforProduction that was

served upon the State of Illinois on or aboutMay 15, 2003.

4.

Having assisted the attorney ofrecordfor the People, PaulaBecker Wheeler,

Assistant Attorney General, in responding

to

the aforementioned discoveryresponses, I

can

state, to the best ofmy knowledge

and

belief, that the

Plaintiff’s

responses to the

Respondent’s

Request

for Production

are

responsive and.complete.

I can further state, to

thebest ofmy knowledge

and

belief, that thefacts set forth in the responses to the

Respondent’s Interrogatories aretrue, accurate

and

complete.

Due to my limited role in

this enforcement proceeding, I cannot attest to the objections

identified

in the discovery

responses.

Further affiant sayeth not.

C2rILU~

Subscnbed and Sworn

To Before Methis~~Day ofJune2003

f

.

‘1

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NOTARY

PUBUC.

STATEOF

ILUNOIS

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ov~rbroad,unduly burdensome,

and apparently calculated to

harass,

cauée unnecessary delay and needlessly increase the

cost

of litigation. Without waiving said objection, please see

attached documents.

16.

Reaiiest

All Documents and Communications regarding t:he ozone air

qu~1ityfor Cook County for the years

from 1985 to 2000,

-including but not limited to the “Illinois Annual Air Quality

Report.”

Response:

Complainant objects

to this request as irrelevant,

overbroad, unduly burdensome, and apparently calculated to

harass,

cause unnecessary delay and needlessly increase the cost

of litigation.. Without waiving said objection, please see

attached documents.

INTERROGATORI~S

1.

Question

Identify each Person who will testify for Complainant

at

hearing arid for each Person

state

each

of the subject(s)

of

their

testimony.

Answer:

Gary Styzens,

IEPA, Chief Auditor, will testify about the

economic benefit of noncompliance and related issues.

Dr. Nosari,

Consultant,

will testify about ability to pay

and related issues.

Complainant has not yet identified

other witnesses to render

—7-

---

F

testimony at triaL

Complainant reserves the right to supplement

its response to this question request as additional information

becomes available. Investigation continues.

2.

Question

~4’~i

Cc~v~h4Ihue~

Identify all Persons including experts and consultants,

having knowledge of the facts,

circumstances, or other

matters

alleged in the Complaint.

Answer:

See answer to Interrogatory No.

1.

3.

Question

IdentIfy each Person including but not limited to past and

present employees of Complainant who provided information and/or

drafted the answers to each of Respondent’s interrogatories and

state

the number of the interrogatory for which they provided

information or responded.

knswer:

Gary Styzezis provided assistance with NoB. 25,26,27,28 and

29.

Dr. Nosari provided assistance with No~27.

Crystal Myers-Wilkins, Assistant Legal Counsel of the

Illinois EPA,

and Paula Becker Wheeler, Assist~.ntAttorney

General, provided legal assistance with regard to all

Interrogatories and objections.

4.

Ouestion

State in detail each fact on which complainant bases its

allegation that Respondent has violated 35 Illinois

Administrative Code Part

203.

-8-

---

CERTIFICATE OF SERVICE

I, the undersigned, certif~i

that

I have served copies ofthe attached

RESPONDENT’S RESPONSE

TO MOTION TO QUASH SUBPOENA

upon the

following persons by placing said document in the U.

S. Mail

with

postage prepaid before

4: 00 p.m. on August

15, 2003:

Original

and four

(4) copies

Clerk, Illinois Pollution Control Board

100 W. Randolph Street

State ofIllinois Center

Suite

11-500

Chicago, Illinois 60601

One copy eachto:

Paula Becker Wheeler

Assistant

Attorney General

Office ofthe Attorney General

188 West Randolph Street, 20th Floor

Chicago, Iffinois

60601

Mr. Bradley Halloran

Hearing Officer

Illinois Pollution ControlBoard

James R. Thompson Center, Suite 11-500

100

W. Randolph Street

Chicago, Illinois

60601

Dated:

August

15, 2003

Heidi E.

Hanson

H. E.

Hanson,

Esq.

P.C.

4721

Franklin

Aye, Suite 1500

Western

Springs,

IL 60558-1720

(708) 784-0624

This

filing

is submitted

onrecycled paper.