FAX

NO.

2175247740

JUN—04-2003 WED 10:19 AM ENVIRONMENTAL

P.

02

RECEIVED

CLERK’S

OFFICE

JUN

4

2003

GENERAL

STATE OF 1W~O1S

Pollution Control Board

Lisa Madigari

ATTORNEY

GENERAL

Via Federal Express Mail

The Honorable Dorothy Gunn

Illinois

Pollution

Control Board

State of Illinois

Center

100 West Randolph

Chicago,

Illinois 60601

Re:

People

v.

Peabody Coal

PCB

No. 99-134

Dear

Clerk Gunri:

Enclosed for filing please find

the ~,riginal

ancj

five copies of a

NOTICE OF FILING

and

COMPLAINANT’SMOTION

FORPROT~TIVEORD~R

in regard to the above~captioned

matter.

Please

file

theoriginal and return a fiIe-st~rrped

copy o~f

thedocument to our office in the enclosed,

self-addressed, stamped envelope.

Thank you for your cooperation a

~•

consider~tion,

Very

truly yours,

~eEMcBnde

Ehvironmerital

Bureau

590. South Second Street

Springfield,

Illinois 62706

(~17)782~9031

JEM/pp

Enclosures

500

South Second St~e~.

Springticld, 1$1inu(~

~7O(~

•

(217)

~82-1090

•

•rn~

(217)

7$S-2771

•

Fax:

(217) 782-7046

100 We~

Randolph Scrcec, Chicago,

I1linni~

1601

•

(312) S’14-3000

‘

NY~

(312) 814-3374

•

F~x

(312) 814~3806

lO()1 E~M~jii.

C~~honda1a,

Illinois

629

.1

•

(118)

5294(00

•

TTY:

(618) 529-(~403

*

Fi~x:(618) S29~641ô

OFFICE OF~’

me 4,

---

JUN—04-2003 WED

10:19 AM ENVIRONMENTAL

FAX

NO.

2175247740

P

03

PEABODY COAL COMPANY,

a Delaware corporation,

ICE OF

FI~!JN~

Stephen~.F.Hedinger

Attorney~at

Law

2601

Sopth Fifth Street

Springfi~Id,IL 62703

,.-‘~JANE

E. McBRIDE

Assistant Attorney General

Environmental

Bureau

PEOPLE OF THE

STATE

OF ILLINOIS,

-

CompIair~a

POLLUTION

)

)~.

)f

)

PCB NO. 99-1 34

Respond~

Nb

To:

David

R. Joest

Peabody Coal Company

1951

Barrett

Court

P.O.

Box 1990

Henderson,

KY 42420-1 990

W.

C.

Blanton

Blackwèll Sanders Peper Martin~

I

2300 Main Street,

Suite 1000

Kansas City,

MO 64108

PLEASE TAKE

NOTICE that on t

Control Board

of the State of Illinois,

CO

500 South Second Street

Springfield,

Illinois 62706

217/782-9031

Dated:

June

4,

2003

Is date

I m~Iled

for filing with the Clerk of the

Pollution

PLAINANT’S

MOTION FOR PROTECTIVE ORDER.

Respectfully

submitted,

PEOPLE OF THE STATE OF

ILLINOIS

UPSA

MADIGAN

4ttorney General of the

State of Illinois

1~lATTHEWJ.DUNN,Chief

~nvironmental

Enforcement/Asbestos

L~JtjgationDivision

BY:

7’~-

~

---

JUN—04—2003 WED

10:20 AM ENVIRONMENIAL

FAX NO,

211b24T(40

W.

C.

Blanton

Blackwell Sanders Paper Martini

2300 Main Street,

Suite 1000

Kansas City,

MO 64108

(Also via

facsimile No.

(816) 983-~

and the original and five copies

by Fed~r

To:

Dorothy

Gunri, Clerk

Illinois Pollution Control Board

State of Illinois Center

Suite 11-500

100

West Randolph

Chicago, Illinois 60601

(Also via facsimile No. (312) 814-j

A

copy was also sent by Federal Expre~s~

To:

Brad Halloran

Hearing Officer

Pollution Control

Board.

James

R. Thompson

Center, Ste

100 West Randolph

.

-

Chicago,

IL 60601

(Also via facsimile

No.

(312) 814-~

~ATE OF ~ERVICE

p03, send b~

First

Class Mail, with postage thereon fully

!ost Office ~oxa

true

and correct copy of the following

~TION

FOI~

PROTECTIVE ORDER

Stephen F. Hedinger

Ejedinger Law Office

2~01South Fifth

Street

~pringfield,IL 62703

(AlSO via facsimile No. 523-4366

Without Exhibits)

P.

04

CERTIF

thereby certify thati did

on June 4,2

prepaid,

by depositing

in a United State~

instruments entitled

COMPLAINANT’S

M

To:

David

R.

Joest

Peabody Coal Company

1951 Barrett Court

P.O.

Box 1990

Henderson,

KY 42420-1990

~.151

witho~t

Exhibits)

~IExpress

F~1aiIof the same foregoing instrument(s):

~669withoyt Exhibits)

~1Mail

~11-500

p669 withoijit

exhibits)

‘.~

‘7~._~t

?‘-~

4arie

E1(Bride

~ssi?~ant Attorney General

~bmitted

on

recycled paper

This filing is ~

---

JUN—U4—~UU~

NhL) 1U~URfl

V1t~UNI’Th.NIHL

1~Hlc

NU, ~I(5~4((4U

l~, Ub

~$

POLLU11ON

CONTROL

BOARD

),

)i

V.

)I:

)!

PEABODY COAL COMPANY,

a Detaw

~ie

)~

corporation,

)(

Responde~t.

)~

COMPLAINANT’S

FO~.

PROTECTIVE ORDER

Complainant,

PEOPLE OF TH~

41 ATE OF I~LINOIS,by LISA MADIGAN, Attorney

General of the State of Illinois, hereby re

pectfully

nioves the Hearing

Officer for the issuance

of a

Protective Order regarding the addit ~naJ

written discovery requests propounded by the

Respondent,

and states as follows:

1.

Section

101.616 of the B

~ird’s

Proce~1uralRules,

35

Ill. Adm.

Code

101.616,

provides generally that

all

discovery disp~tes

will be jl.andled

by the assigned

hearing

officer.

In

particular, Section

101

616(b) provides t

~at,

if the p~rties

cannot

agree on the scope of

discovery,

the

hearing officer has the

~u

~fiority

to deny requests

for discovery.

Section

10L616(d) provides that the “hearing àf

er may,

ort).

his

or her own motion

or on

the motion of

any

party or witness,

issue protective

or ~rs that de~iy,

limit,

condition or regulate discovery to

prevent unreasonable expense, or harp

~ment,

to e~pedite

resolution of the proceeding.

..

This is the relief sought by

the Complain

2.

As

background, Peabody

Documents to the Complainant on July ~

from the files of the Illinois Environment~

Resources,

and the Illinois

Departmer~t

PCB NO.

99-134

(Enforcement)

~nt.

~ropounde~i

its

First Request for Production of

~,

1999.

This was a very broad request for documents

Protectioq

Agency, the

Illinois

Department of Natural

~ Public He~Ith. Respondent’s First Set of

I

---

JUN—U4—~UU~

Whi)

1U~1All hNV1KUN11h~’F1flL

I’f~iX

NU.

~i(b~4H4U

l~.

Ub

Interrogatories was

propounded

upon th

i~ompIaina~it

on

November 4,

1999, and

included 45

separate interrogatories.

Respondent’s

~cond

Req~.jestfor Production of Documents was

propounded upon Complainant on

Nove

ber 5,

199~,

and included additional broad requests

for documents from the Illinois EPA an~

e

Illinois DNR as well as the files

of the

Illinois State

Geological Survey and the Illinois State

ater Survey.

Respondent propounded

its Second Set

of lriterrogatories and Third

Request for

joduction ~f IDocuments

on

March

15,

2000.

The

additional interrogatories requested

discl

sure of opihion and fact witnesses.

Said disclosure

was completed

by Complainant on

May

~,

2003,

pursuant to

the discovery schedule that

has

been established by the Hearing

Officer

I

this matt*.

3.

On

May 27,

2003,

the Co

pIainantw~s

served with additional written

discovery

requests,

identified

as Peabody’s Third

~t of lnterrc~gatoriesthrough Seventh Request for

Production of Documents; these reque~t~are

attach~dhereto as

Exhibit A.

The Respondent

had already propounded

47 interrogatori~s.The rec~ntly

received

sets of interrogatories

consist of a third

set of

12

interrogatorie ~iafourth s~t

of

30 interrogatories, a

fifth set of

17

interrogatories,

and a

sixth set of

15

inte

ogatories.

Further,

also as stated above,

the

requests to

produce propounded

prior to ta

most r~cent

requests were

very

b~oadrequests

concerning the files of five

State agenci

~,

The mo~

recently received requests

number as

follows: a fourth set of 21

individual requ

sts for

production,

a fifth set of 57 individual

requests

for production,

a

sixth

set of 26 individü

Irequests, ~nda seventh set of 24 individual

requests.

Many of the requests and interrogatori~ bontained ~ithinthe third through seventh

requests

recently

propounded are duplicative of~por request~..The recent disclosure by the

Complainant concerning witnesses and

~eopinion~

and conclusions of controlled experts are

responsive to all the formerly cutstaridln

requests ~

many of the some of the recently

propounded

requests.

2

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JUN—U~—~UU~

WEt)

IU:~i

All

ENVIRUNI1EN1cIL

I~f-IX

f’IU,

~i(b~4H4U

I~,

U(

4.

The Board’s Procedural

Ri

Section

101.100(b) indicates that “the

Ba

Supreme Court Rules for guidance wher~

part, Section

101.614 provides that the

“~

production of information when necessar

harassment....”

Section 101.620(a) ex~

ordered otherwise by the hearing officer,

interrogatories, including subparts, on an

5.

The Complainant objects

sought leave from the Hearing Officer to

exceed the limit of 30.

It was incumbent

ihterrogatories.

Peabody’s failure to do

each interrogatory as

would otherwise

bE

The Respondent also failed to

comply w~

these additional written

discovery reque~

Respondent may have believed that the

inadequate

Secondly,

the Complainant

additional interrogatories

with

responses

expense,

or harassment.

Lastly, as des

protective order

to “deny, limit, condition

expense,

or harassment, to

expedite re~

~es

govern ~heconduct of discovery.

Moreover,

rd may loo~çto the Code of Civil

Procedure and the

~heBoard’$ procedural rules

are silent.”

In pertinent

paring offic~r

will deny,

limit or condition the

ito prevent~undue

delay,

undue expense, or

~icWy

limits

jthe

number of interrogatories:

“Unless

~i

party

may

serve a

maximum of 30 written

other parts,..

.:‘

h

several ~rounds.First, the Respondent never

ropound t~additional iriterrogatories,

which vastly

~‘ponthe R~spondent

to justifythese additional

does

not

~hift

the burden to

the

People to object to

~generaIly

i~equiredby Section

101.620(b) and

(c).

I

‘h

Illinois Si~preme

Court Rule 201(k) prior to serving

~s;this woufrJ have been necessary where the

omplainarit’s previous

responses were somehow

~easonably;;believes

that any effort to address

these

~ndobjecti~ns

would result in undue delay,

undue

~‘ly

allowed ~y Section 101.616(d), the People seek a

~r regulateirt~iscovery

to

prevent unreasonable

j~lutionof tile proceeding

3

i

---

~LEOF THE STATE

OF ILLINOIS,

by LISA

f Illinois,

hereby respectfully requests that the

deny or sflike the additional

written discovery

R~spectfuIly

submitted,

PEOPLE OF THE STATE OF ILLINOIS,

LISA

MADIGAN

,A~ttorneyGeneral

S~tateof Illinois

MATTHEW

J.

DUNN, Chief

~nvironmental

Enforcement Division

‘~EL.~

/~3ANEE.

MCBRIDE

Environmental Bureau

I

AssistantAttorney General

FAX NO.

2175247740

P.

08

JUN-04-2003 WED

10:22 A~1ENVIRONIIENTAL

WHEREFORE,

Complainant, PE9

MAD~GAN,Attorney General of the State

Hearing Officer issue a Protective Order t

requests

propounded bythe Respondent.~

Of Counsel:

THOMAS

DAVIS

1

500 South Second Street

Springfield,

Illinois 62706

Dated: June4,

2003

1.

ii

4