BEFORE THE ILLINOIS POLLUTION CONTROLB~~ERVED
CLERK’S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
NOTICE OF FILING
AND
PROOF OF SERVICE
To:
Jane E. McBride (via fax &
U.S. mail)
Environmental Bureau
Attorney
General’s Office
500
S. Second St.
Springfield,
IL 62706
W.C. Bilanton (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 fax & U.S. Mail)
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois
60601
The
undersigned certifies
that
an
original
and four
copies of PCC’s
Withdrawal
Of
Interrogatories, PCC’s Brief In Opposition To State’s Motion For Protective Order, Affidavit Of
W.C.
Blanton
Relating To
State’s Motion
For Protective Order,
and
Affidavit Of Stephen F.
Hedinger Relating To State’s Motion For Protective Order, were served upon the Clerk of the
Illinois Pollution
Control Board,
and one copy was served upon the above-identified individuals
via fax
and/or U.S.
mail by enclosing the same in
envelopes properly addressed,
with posta~ej
fully prepaid, and by depositing said envelopes in
a
U.S.
Post Office mail box,
on
the
day of June, 2003.
__~.—‘
~
Hedinger
Law
Office
2601 S. Fifth St.
Springfield, IL 62703
(217)
523-2753
phone
(217)
523-4366
fax
THIS FILING IS SUBMITFED ON RECYCLED PAPER
v.
PEABODY COAL COMPANY, a Delaware
corporation,
Respondent.
)
)
)
)
)
)
JUN
1
7
2003
PCB 99-134
STATE OF IWNOJS
Pollution
Control Board
KC-1005698-1
2597/3
V
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
REC~JVED
CLERK’S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
JUN
1
7
2003
)
Complainant,
)
STATE OF ILLINOIS
)
Pollution Control Board
v.
)
PCB 99-134
)
PEABODY COAL COMPANY,
a Delaware
)
corporation,
)
•
)
Respondent.
)
PCC’S
WITHDRAWAL OF INTERROGATORIES
Respondent,
Peabody
Coal
Company
(“PCC”),
hereby
notifies
the
Board
and
Complainant, People of the State of Illinois (“State”), that it hereby withdraws its interrogatories
set
forth
in
four
sets
of
interrogatories
served
upon
the
State
on
May 23,
2003
(“PCC
Interrogatories”).1
However, by
doing
so, PCC
does
not
waive,
but
rather hereby expressly
preserves, its right to
direct further interrogatories to
the State in accordance with all
applicable
Board rules and other applicable law.
PCC believes
that its
service of the PCC Interrogatories
upon the State was consistent
with an
agreement by the parties that the 30-interrogatory limit established by 35 Ill. Adm. Code
101.620(a) (“Section
101.620(a)”),
will not
apply in
this
case.
Furthermore,
without
ever
seeking leave of the Board to exceed
the 30-interrogatory limit, the
State in this case already has
directed more interrogatories2 to
PCC (47 numbered interrogatories with a total of 729 subparts)
1
These sets
of interrogatories were entitled
Peabody s Third Set
Of Interrogatories To
The State;
Peabody
S
Fourth Set
Of Interrogatories
To
The State;
Peabody s
Fifth Set of Interrogatories To
The State;
and Peabody s
Sixth Set Of InterrogatoriesTo The State.
2
Under
Section
101.620(a),
each
subpart
of
a
given
interrogatory
counts
as
a
separate
interrogatory
for
purposes of the 30-interrogatory
limit.
KC-1O95913-1~
than PCC has directed to the State (123
numbered interrogatories
and
a total of 501
subparts,
including
the
recently
served
PCC
Interrogatories);
and
PCC
has
responded via
answer1 or
objection
to
every one. of those
interrogatories
before
serving the
PCC Interrogatories
on
the
State.
Therefore,
PCC was surprised by the filing of Complainant’s Motion For Protective Order
(“State’s Motion”) by the ‘State on June 4, particularly since the State
made no reasonable effort
to resolve its complaint
about the PCC Interrogatories
by
agreement of the parties before filing
that motion.3
NQnetheless,
following
the
filing
of
the
State’s
Motion,
PCC
has
reviewed
the
interrogatories contained in the PCC Interrogatories and determined that it would be appropriate
to restate certain of them.
Accordingly, PCC is hereby withdrawing the PCC Interrogatories and
will in
the near future seek leave of the Board
to
direct additional
interrogatories
to
the State,
notwithstanding
its
position
that
the
State
has
no
basis
to
object
to
any
further
PCC
Interrogatories on the basis of Section 101.620(a), now that the State has taken the position that it
will object
to
any
further interrogatories
directed
by
PCC to
the state on
the basis
of Section
101.620(a)
unless PCC seeks leave
to
do so.
Therefore,
to the extent that the State’s Motion is
directed to
the PCC Interrogatories, it has been mooted.
However, PCC’s withdrawal of the PCC Interrogatories is without effect on the four sets
of requests
to the State for the production of documents served by PCC on
May 23
to which the
State’s Motion also is directed.
Rather, the State’s Motion in this regard should be denied for the
reasons stated in
PC’s Opposition Brief.
~
the discussion
at
Section
II.A.
of
PCC s
Brief In
Opposition To
State s
Motion For
Protective
Order
(PCC Opposition Brief), filed herewith.
KC-1O95913-1~
2
Date:
June 12, 2003.
Respectfully submitted,
PEABODY COAL COMPANY
By its attorneys
C,
W.
C. Blanton
‘
4~
BLACKWELL SANDERS PEPER~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 (fax)
Stephen F~1edinger
HEDINGE~R
LAW OFFICE
2601 South Fifth Street
Springfield, IL
62703
(217) 523-2753 (phone)
(217) 523-4366 (fax)
hedinger@cityscape.net (e-mail)
KC-1O95913-1~
3
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK’S
OFFICE
PEOPLE OF ThE STATE OF ILLINOIS,
JUN
1
7
2003
Complainant,
)
STATE OF ILUNOIS
)
Pollution
Control Board
v.
)
PCB 99-134
)
PEABODY COAL COMPANY, a Delaware
)
corporation,
)
•
)
Respondent.
)
PCC’S BRIEF IN
OPPOSITION TO
STATE’S MOTION FOR PROTECTIVE ORDER
Respondent, Peabody Coal Company (“PCC”), hereby submits its brief in opposition
to
Complainant’s Motion For Protective Order (“State’s Motion”), filed by Complainant,
People of
the State of Illinois (“State”), on or about June
4•1
I.
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
expensive injunctive
relief.
Given
the nature
and
magnitude of this
case as established
by the
State,
PCC
has
no
alternative
but
to
vigorously
defend
itself
against
the
State’s
claims.
Litigation of a case
of this
magnitude and
complexity
is’
inevitably
a major undertaking that
consumes a great deal of every party’s resources; and it is neither reasonable nor appropriate for
the State to resist PCC’s discovery requests simply on the grounds that those efforts will cause a
1
All dates stated herein pertain to the year 2003,
unless specifically stated
otherwise.
2
These COCs of concern are sulfates,
chlorides,
total dissolved solids (TDS),
iron, and manganese.
(TDS
is
not really
a
chemical,
but it is appropriate to consider TDS as a
COC
as a matter of convention in this case.)
KC-1O95O63-1~
2597/3
lot of work for the State’s
personnel.
Rather, the State’s basic
complaint
that underlies
the
State’s Motion, I~.,that the
discovery requests
directed
to
it
by
PCC
are numerous
and
that
responding
to
them
on
the
merits
will
require
a
substantial
amount
of work
that
must
be
evaluated in
the context
of PCC’s
right
to
develop
and
present a fair
and
full defense
to
the
State’s claims against it in this
case.
On May 23,
PCC served
upon the
State
four sets
of interrogatories
and
requests for the
production of documents (“PCC Discovery Requests” collectively).3
By the State’s Motion,
the
State seeks a protective order that would
relieve the State
of any obligation
to
respond either
to
the
interrogatories (“PCC
Interrogatories”) or the requests
for
the production of
documents
(“PCC
Production Requests”) in
question.
The basis
for
the
State’s Motion
as
to
the PCC
Interrogatories
is
stated
to
be
PCC’s
failure
to
obtain
leave
of Board
to
direct
more
than
30 interrogatories to
the
State
in
this
case.
The
basis
for
the
State’s
Motion
as
to
PCC’s
Production
Requests
is
not
clearly stated,
but
appears to
be
(a) the
production requests
are
numerous, and
(b) the State
has already produced a lot of documents in this case.
As
discussed below,
the
State’s Motion
should
be
denied, for the following
reasons.
First, the State failed
to make any
reasonable
effort to resolve the discovery
dispute that
is
the
subject of the State’s Motion
prior
to
filing
that
motion,
in
accordance with
Illinois
Supreme
Court Rule 201(k) (“Rule 201(k)”).
Second,
to the extent that the State’s Motion is based upon a
contention that PCC has directed more than
30 interrogatories to the
State without leave of the
Board,
PCC has now withdrawn the PCC Interrogatories, subject to
its intention to seek leave of
the Board in the near future to
direct additional
interrogatories to
the State.
Third,
to the extent
the State’s Motion is
directed
to
the PCC Production Requests,
it completely
fails
to
articulate
~Copies of the PCC Discovery
Requests have been filed by the State as part of Exhibit°Ato the State s Motion.
KC-1O95O63-1~
2
2597/3
any factual or legal basis upon which relief can be granted.
Fourth, all of the production requests
in question seek the production of documents that either
contain information relevant to
one or
more issues
that have been raised in this case or contain information calculated to lead
to such
relevant
information
and
are
reasonable
in
both
nature
and
number
given
the
nature
and
magnitude of the issues in this case.
II.
DISCUSSION
35 Ill. Adm.
Code
§
101.616(a) (“Section 101.616”) provides in subsection (a) that “all
relevant
information
and
~information
calculated
to
lead
to
relevant
information
is
discoverable.
..
.“
Section 101.616
also provides
in
subsection (b)
that “if
the pariies cannot
agree on the scope of discovery..
.
,
the hearing officer has the authority to order discovery or to
deny
requests for discovery.”
Section
101.616
further provides
at
subsection (d)
that
“tjhe
hearing officer may
.
.
.
on the motion of any party
.
.
.
,
issue protective orders that deny, limit,
condition or regulate discovery
to
prevent unreasonable
expense,
or harassment,
to
expedite
resolution
of the proceeding,
or
to
protect
non-disciosable materials from
disclosure.
.
.
.“
In
light ofthis discovery framework, the State’s Motion falls far short of demonstrating good cause
for the issuance of a protective order as requested.
A.
The State Has Failed To Comply With Rule 201(k).
Section
101.616 provides
generally:
“For purposes
of discovery, the Board
may look
to.
.
.
the Supreme Court Rules for guidance
where the Board’s procedural
rules are silent
(see
Section
101.100(b)).”
Rule 201(k) provides important guidance here.
That rule provides, in
full:
The
parties shall
facilitate
discovery under
these rules
and
shall
make
reasonable
attempts
to
rçsolve
differences
over
discovery.
Every
motion
with
respect
to
discovery
shall
incorporate
a
statement
that
counsel
responsible
for
trial
of
the
case
after
personal
consultation
‘and
reasonable
attempts
to
resolve
differences
have been unable
to
reach an
accord or that
opposing
counsel
made
himself
or
herself
unavailable
for
personal
KC-1O95O63-1~
2597/3
consultation
or
was
unreasonable
in
attempts
to
resolve
differences.
Here,
the State has made no reasonable
effort to comply with
Rule 201(k).4
Indeed, ~he
State’s Motion contains no assertion that
it has done so.
On May 30,
2003,
the State’s attorney of record, Jane B.
McBride, sent a letter by U.S.
Mail
to
PCC’s
attorneys, W.
C. Blanton
and
Stephen F.
Hedinger,
by
which
Ms. McBride set
forth the State’s contention that
PCC Interrogatories had
been improperly
served because PCC
had not
obtained
leave from
the Board to
serve
more than 30
interrogatories upon
the
State
in
accordance with
35
Ill.
Adm.
Code
§
101.620(a)
and
the
State’s general
complaint, about
the
scope of the PCC ProductionRequests.
Mr. Blanton received
his copy of that letter on June 4;
and Mr. Hedinger also received his copy
on that date.
In the meantime,
on June 2, Ms. McBride
transmitted
another letter to
Mr. Blanton and Mr. Hedinger via facsimile, by which Ms. McBride
requested
an
immediate response
to
her May 30
letter.
Mr. Blanton
responded
by
e-mail
on
June 3,
advising Ms. McBride
that
he
had
not
received from
her
any
letter
dated
May 30
addressing
these
issues.
Ms.
McBride
then initiated
transmission of
her May 30
letter
via
facsimile on June
3
to Mr. Blanton at 4:33
p.m.
and
to
Mr. Hedinger at 4:37 p.m.
On the next
morning, June 4, Ms. McBride initiated transmission via facsimile copies of the State’s Motion,
Notice Of Filing, and filing letter, without awaiting or further soliciting a response to her May 30
letter, which had been transmitted
to PCC’s attorneys late the previous day.5
~ The facts
stated below
are
established
by
the
Affidavit Of
W.°C.°Blanton
Relating
To
State s
Motion For
Protective Order
and the
Affidavit Of Stephen
F.
Fledinger Relating To State
s Motion For Protective Order, both
filed herewith.
~ However,
in her May
30
letter,
Ms.
McBride states
that
the
letter was being
sent
to initiate
the RuIe°201(k)
process, thereby
acknowledging
the
State s understanding that it was required to make reasonable effortsto resolve
this discovery dispute by agreement of the parties before seeking a resolution
by the Board.
KC-1O95O63-1~”
‘
2597/3
After
receiving notice
that the
State’s Motion
was
being filed, Mr. Hedinger
and
Mr.
Blanton initiated a telephone call to Ms. McBride
in an attempt to resolve this discovery disppte
by
agreement
of the
parties.
During
that
conversation,
Ms.
McBride
stated that
the
State’s
Motion
had been written by Thomas Davis, Chief of the Environmental Bureau of the Office of
the Attorney General of Illinois, and
that he should participate in the call.6
However, Mr. Davis
apparently was unavailable,
and Ms. McBride declined to
discuss during that
call the issues of
(a) whether the PCC Discovery Requests seek information relevant to
the issues presented in
this
case
and
information calculated
to lead
to
such relevant
information
and
the production of
documents
possessed
by
the
State
that
contain
such information,
and (b) whether the
PCC
Discovery Requests constitute reasonable and
appropriate means of obtaining such information.
Furthermore,
at
the June 10
meeting of the
parties’
attorneys sought
by
PCC,
which
required Mr. Blanton to
travel from Kansas City, Missouri to
Springfield, Illinois at considerable
expense
to
PCC,
Mr. Davis
made
it
clear ‘at
the
onset
of
the
meeting
that
the
State’s
representatives would
not
discuss
the
issues
of whether
the
PCC Discovery
Requests
seek
information
that
is
subject
to
discovery
and
whether
they
constitute
reasonable
means
of
obtaining
such information;
and
the State’s attorneys adhered
to
that
position throughout
the
meeting.
Indeed, Mr.
Davis indicated
that
he
had
not
up
to
that
point in
time
even read
the
interrogatories and production requests at issue, and Ms.
McBride stated that she had not read all
of them
until
the
day
before
the meeting,
j~, nearly
a week
after she had
filed the
State’s
Motion.
In summary, the
State made no reasonable effort to resolve the discovery dispute that is
the subject of the State’s Motion through
consultation by
the parties’ attorneys, as required by
6
Mr.°Davishas not appeared of record
on behalfof the
State in this proceeding.
KC-1O95O63-1~~
2597/3
Rule 201(k), before filing that Motion.7
Notably, the State’s Motion itself contains no statement
by
the State’s attorney of record that
she has made required consultation and
other reasona~le
attempts to resolve this discovery dispute;
nor does the State’s Motion otherwise contend that to
be so.
Therefore, the State’s Motion should be summarily denied.
B.
The
State’s Motion Is Moot As
To The PCC Interrogatories.
To the extent
that the State’s Motion
is
directed to
the PCC Interrogatories, it has been
mooted..
PCC has now withdrawn all of the PCC Interrogatories, so that no issue regarding those
discovery
requests is
pending before the Board
at this
time.
Consequently,
to
the extent
the
State’s Motion is directed to the PCC Interrogatories, it must be
denied as moot.
C.
The State Has Set Forth
No Basis For Objection To The Production Requests.
The State
has made virtually no
effort
to justify
its
request for a protective order
with
respect to PCC’s
Production Requests.
Rather, the State merely
notes
that there are a total of
128
individual requests,
asserts that “many” of the requests are “duplicative of prior requests”
without specifically identifying any
such
allegedly duplicative
requests,
asserts that its
expert
witness disclosures made after service of PCC Production Requests “are responsive to
.
..
many
of the some of sic
the recently propounded
requests,” and suggests that the Section 101.616(d)
standard for the issuance of a protective order are somehow satisfied here.
This falls far short of
the showing required for the issuance ofa protective order.
First, each set of the PCC Production Requests includes the following instruction:
~In
contrast, PCC anticipated the
State s reaction
to the
PCC Discovery Requests
and, before they
were served,
invited the State
s attorney of record to discuss any concerns
that the
State might have regarding
those requests after
reviewing them
in sufficient detail to understand the actual nature and scope of the requests,
attempted to discuss the
substantive scope and nature of the PCC Discovery
Requests with the
State
s attorney of record on June°4,and again
attempted to discuss the substantive
scope and nature of
the
PCC Discovery
Requests
with the
State s attorney
of
record,
the
Chief of the Environmental Bureau,
and
the
IEPA
attorney responsible for this case
on June°
10
—
but all
of these efforts were rebuffed by
the State.
KC-1O95O63-1~
6
2597/3
It is
not PCC’s intention by these production requests to seek documents
that
have
previously
been
provided
by
the
State
in
its
responses
to
production requests previously directed
to it by PCC.
Therefore,
all of the
production
requests
below
should
be
construed as
consistent
with
that
intention, even if a production request by
its
terms could be construed to
seek such documents, so
that
no objection
on those grounds
is necessary.
However, if you
contend
that
any
document
sought
by
any production
request below
has
been
previously
provided
to
PCC
in
response
to
a
production request previously directed
to the State, identify the production
request
response
by
which
that
document
was
previously provided
to
PCC.
Therefore, even if some
individual request can be reasonably construed
to
be duplicative of an
earlier request, which
PCC,believes
in
fact
is
unlikely,
little
effort by
the State
is
required
to
respond in accordance with the instruction.
Second,
to
the
extent
that
the
State
has
provided
PCC
certain
documents
that
are
responsive to
some of the PCC Production Requests
after they were served, all
the State
has to
do
is say so in its
responses to
those requests.
Third, the State’s purported reliance on Rule 201(k) here is
at best curious.
It was PCC’s
intention
and
effort to seek only the production of documents via the PCC Production Requests
that had
not been produced by the State in response to PCC’s prior requests.8
If PCC nonetheless
has somehow reiterated some prior satisfied production requests,
that does not mean a discovery
dispute governed
by
Rule 201(k)
exists,
especially
in light
of PCC’s
instruction.
If the State
believes
that
it
has previously
responded
to
a
request,
it merely
needs
to
comply
with
the
8
PCC acknowledges that
some
few of the
PCC Production Requests
reiterate production requests previously
directed
to
the
State
to which
the
State
had not
responded
at
all
prior to
PCC s
service of
the PCC Production
Requests.
These few
situations involve
requests prompted
by
the
State s original
complaint
in this case.
As
that
complaint now
has been substantially modified, PCC s new requests are necessary and appropriate.
KC-1O95O63-1~
2597/3
Instruction relating to duplicate requests.9
If it has not previously responded, it should
simply do
so now.
•
I
Finally,
the
State
has
made
no
effort
to
demonstrate
that
responding
to
the
PCC
Production Requests would cause the State unreasonable expense; or that
the production requests
constitute harassment of any
sort;
or that
the resolution
of this
case should
be
expedited at the
expense of PCC’s right to conduct appropriate discovery relevant to the issues presented in
this
case.
Rather,
all
the
State
has done
to
support
the State’s Motion
with
respect
to
the
PCC
Production Requests is
to complain that
there are a lot of them.
Having failed to offer up even a
prima facie case to
support
the State’s Motion
as to
the PCC Production Requests,
the motion
must be
denied.
D.
The
Production
Requests
Seek
Information
And
Documents
That
Are
Subject To
Discovery.
As noted above, this is
a big case, with a lot of issues, and
a lot at issue for
i~ffi
parties,
not just the State.
Here,
the State
has provided
no basis for the Board to
deny PCC a fair and
reasonable
opportunity
to review the documents in
the possession of the
State
that will
enable
PCC to
develop and present its
defense to the State’s claims at the adjudicatory hearing in
this
matter.
The
PCC Discovery Requests
are critical
to
that effort;
and
PCC will be
substantially
prejudiced if it is denied the discovery sought thereby.
All
of
the
PCC Production Requests
seek
the production
of
documents
that
contain
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,
i&~,
documents subject to
discovery.
~
Section
101.616(a).
Therefore,
unless a particular production request
is subject
~ Ironically, PCC reiterating
a production
request
affords
the
State
more rights
than
the Rule°201(k)process
does.
The State
can assert any
valid
objections it may
have to the
new requests; but is bound
by
its stated objections
to the earlier but purportedly
same
requests.
KC-1O95O63-1~
2597/3
to a valid objection on some other grounds, the
State has an obligation to produce the documents
sought.
I
There are five primary issues that have been raised in this case that are addressed by
the
PCC Production Requests.’° The first issue
is whether Counts II and
III of the State’s complaint
against PCC 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
Protection Act
(“Act”)
has occurred in the groundwater that
is
the
subject of this
matter and/or whether PCC’s
coal mining
refuse
disposal practices
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.11
The fourth issue
is closely related to the
third issue,
~
how
serious
are
the
alleged exceedances of applicable
groundwater
quality
standards alleged
by 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
imposed
upon
PCC if the
violations
of the
Act
alleged
by
the
State
are
found
to
have
been proven,
which
involves
10
These are not all
of
the issues that
have been raised in this case, just the ones
relevant to the PCC Production
Requests.
KC-1095063-1~~
2597/3
consideration of those facts relevant to the factors to be considered under 415 ILCS
5/33(c)
and
5/42(h)!2
I
Each of the PCC Production Requests
has
been narrowly
drawn to
elicit
information
and/or
documents either
relevant
‘to
one
or
more ‘of these issues,
relating
to
some
specific
relevant factual topic,
or constituting
basic “loose ends”
matters.
A chart that
identifies the
issues or topics as to
which each of the PCC Production Requests were
in
dispute is attached as
Appendix A.
Certain of the
PCC.Production Requests
require
special
comment.
First,
22
of the
production requests merely seek documents from the State that are exactly the same in
nature as
those sought by
certain of the,State’s production requests to PCC;
these
are merely sending the
State’s
requests
back to
it.
Second,
40
of
the production
requests
are stated
so as
to
seek
precisely
the
same sort
of documents
w’ith
respect
to
each of the
five COCs, ‘thereby perhaps
giving the
impression that
responding
to
those
requests
involves
five
times
the effort
than
is
really the case.13
Third, eight of the requests (the first two
in
each set) are in the nature of “loose
ends” catchers; they ask for documents relating to
the State’s responses to interrogatories and are
completely standard practice.
~‘
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,
industrial,
agricultural,
recreational,
or other
legitimate
uses,
or to
livestock, wild animals,
birds,
fish, or
other
aquatic life.
415
ILCS
5/3.55.
12
As
the State
has
not even attempted to argue
that
the
documents sought by
the
PCC Discovery Requests
are
not
subject
to
discovery
under
Section
101.616(a)
—
which
would
have
been
hard
to
do
without
reading
the
requests°—°PCC
has
not attempted in this brief to detail
how
its requests
relate
to these factors.
However,
it is fully
prepared to do so if and when the State might properly challenge that proposition.
13
PCC stated these production requests separately for each
of the
five COCs because it reasonably believes that
the State
possesses
documents of the nature sought with respect to some
of the five COCs but not all of them; and it
is important for
the
purposes of PCC s defense in this
case
to make a record as to which, if any,
of the
COCs the
State possesses certain
information.
KC-1095063-1~
2597/3
In summary, the PCC Production Requests
are proper
as a matter of substance, and
PCC
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 requ~sts.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
PCC
will
be
substantially
prejudiced
if
it
is
not
permitted
to
obtain
the
information
and
documents
sought
by
the PCC Production Requests
and
discoverable
under
Section •101.616(a).
‘
III.
CONCLUSION
For the reasons discussed above, the State’s Motion should be denied.
/
KC-1095063-V~
1
2597/3
Date:
June 12, 2003
Respectfully
submitted,
PEABODY COAL COMPANY
By its
attorneys
~
W. C.
Blanton
-
L~6L
BLACKWELL SANDERS PEPER 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 (fax)
wblanton@blackwellsanders.com (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-1095063-1~~
2597/3
APPENDIX A
Production Requests
Issues Addressed
Fourth Set
1
—2
Standard
3
—4
Impact on the aquifer
5—12
Whether, Counts II and III have been brought by the AG on his/her own
behalf, as alleged by the State
13
—
15
Standard
16
—
17
Standard
18
Standard
• 19
Standard
20
Standard
‘
‘
21
Standard
Fifth
Set
1
—2
Standard
3
Whether “water pollution” or “water pollution hazard”
has occurred;
Seriousness of alleged violations
4— 8
Impact on the aquifer
Whether “water pollution” or “water pollution hazard” has occurred;
Seriousness of alleged violations
9
-
10
Withdrawn for now
11
-
12
Whether “water pollution” or “water pollution hazard” has occurred;
Seriousness of alleged violations
13
Impact on the aquifer
14
-
18
‘
Whether “water pollution” or “water pollution hazard” has occurred;
Seriousness of alleged violations
19
—
20
Whether “water pollution” or “water pollution hazard” has occurred;
Seriousness of alleged violations
21
—41
Whether “water pollution” or “water pollution hazard” has occurred;
Seriousness ofalleged violations
42
—46
Impact on the aquifer;
whether “water pollution” or “water pollution hazard” has occurred;
seriousness ofalleged violations
47
‘
Whether “water pollution” or “water pollution hazard” has occurred;
Seriousness of alleged violations
48
—
55
Whether “water pollution” or “water pollution hazard” has occurred;
Seriousness of alleged violations;
Appropriate penalty
Al
KC-1095063-1
2597/3
56
(both)
Whether “water pollution” or “water pollution hazard” has occurred;
Seriousness of alleged violations
57
Whether “water pollution” or “water pollution hazard” has occurred;
Seriousness of alleged violations;
Appropriate penalty
Sixth Set
1
—2
Standard
3—5
‘
Appropriate penalty
6— 13
Appropriate penalty
14
—
15
Appropriate penalty; will limit to info regarding GMZs
16
—
17
Appropriate penalty
18
-
25
Appropriate penalty
26
Whether “water pollution” or “water pollution hazard” has oec~irred;
Seriousness of alleged violations;
Appropriate penalty
Seventh Set
1
—2
Standard
2—24
Same (and all) issues as to which the information sought has been
deemed
relevant by the State by its
corresponding production requests
KC-10950634~
2597/3
2
JUN.
12.
2003
4:53PM
BSPM
NO,
102
P.
2
BEFORE
TIlE
ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
PEOPLE OF TH~
STATE OP ILLiNOIS,
)
•
•
CLERK’S
OFFICE
)
JUN172003
Complainant,
)
STATE OF ILLINOIS
)
PCB 99-134
Pollution
Control Board
)
PEABODY COAL
COMPANY,
a Delaware
)
corporation,
)
)
Respondent.
)
AFFIDAVIT
OF W. C.
BLANTON
RELATING TO
STATE’S MOTION FOR PROTECTiVE ORDER
W. C.
Blanton, being first duly sworn,, states as follows:
1.
The statements made herein
are
based upon
my
personai
knowledge,
and
I am
competent to testif~r
hereto.
2.
I am an attorney duly authorized to praetice law in the States of
Indiana,
Missouri,
and Minnesota;
and
I am one of
the
attorneys of record forRespondent, Peabody
Coal Company
(“PCC”),
in
connection
with
the
above-captioned matter,
having
been
granted leave
by
the
Illinois
Pollution
Control Board
(“Board’) to
appear p~hac
vice
in
this
matter
on
behalf of
PCC.
3.
This
affidavit
is
being
filed
with
the
Board
as
part
of PCC’s
opposition
to
Complainant’s Motion For Protective Order (“State’s Motion”),
filed in
this matter
on or about
June41 by
Complainant, People ofthe State ofIllinois (“State”).
All
dates stated herein are for the
year
2003, unless
specifically stated otherwise.
KC—L095951.I
2597/1
JUN. 12. 2003
4:53PM
BSPM
NO.
102
P.
3
4.
On May 8,
in
an
in-person conversation, I advised
Jane E.
McBride,
the
State’s
attorney
of
record
in
this
case,
and
attorney
Stephen
C.
Ewart
(the
Illinois
Environmental
Protection Agency attorney having primary
responsibility
within that agency for the
handling
of
this
case)
that
PCC
would
within
a
few
days
thereafter
serve nw~ierous
interrogatories
and
production requests upon
the
State
and
that I
anticipated
the State’s attorney’s initial reaction
to
those discovery requests to
be negative.
I also advised Ms. McBride
and
Mr.
Ewart
at
that
time
(a) that those
discovery requests would be narrowly
drawn and
be directedto specific
issues that
have been raised
in
this
case,
(b)
that
PCC
anticipated
the
State
having no
information
or
documents responsive to a
large
number
of
the requests,
(c) that PCC would be willing to
clarify,
make
more specific~or otherwise scale back the
scope
ofcertain
requests,
if appropriate, and (d)
that PCC would generally work
with
the
State so that it
would
not be unduly burdensome for the
State to provide PCC the information
and
documents sought by the requests.
5.
A
copy
of
my
letter
to
Ms. McBride
that
accompanied
the
four
sets
of
inten’ogatories
and
production
requests
served
upon
the
State
that
day
(“PCC
Discovery
Requests”) is
attached as
ExhIbit
A to the State’s Motion,2
6.
On June
4,
I received via U. S.
mail a letter from
Ms. McBride dated May 30
and
addressed to Stephen
F.
liedinger and me,
a
copy of
which
is attached as Exhibit
1.
7.
Prior
to
my receipt of Ms. McBride’s May 30
letter, I received via
facsimile
a
letter from Ms. McBride dated
June
2
and
addressed to Mr. Hedinger
and
me, a copy ofwhich is
attached as Exhibit 2.
8.
On June 3, I transmitted a~
e-mail
message to
Ms. Mc Bride, a copy of
which
is
attached as
Exhibit
3.
2
This letter
is
rnisdared
as “March
25,
2002.”
The
letter
and enclosures were actually mailed oi~
May 23, 2003.
KC.1095951-1
2
~97/3
JUN
12
2003
4:54PM
BSPM
NO.
102
~.
4
9.
Later
on
June
3,
Ms. McBride
transmitted her
May
30
letter described
above to
me via facsimile.
A
copy of
that
copy ofthe letteris attached as Exhibit 4.
10.
On
June
4,
Ms. McBride
transmitted,
to
me via
facsimile a
copy
of the
State’s
Motion,
which apparently
was
transmitted
to the Board for filing
that
day.
A copy of
the
cover
sheet
forthat
transmittal
is attached as
Exhibit
5.
11.
Prior
to
my
receipt
of
the
copy
of the
State’s
Motion
transmitted
to
me
via
facsimile, Ms.
McBride and I
had
not discussed the
State’s objections
to
the discovery requests
directed to the State by PCC that
are the
subject ofher May 30 letter
and
the State’s Motion.
12.
On
the
afternoon of June 4,
Mr.
Hedinger
and
I
placed
a
telephone
call
to
Ms. McBride to
discuss the issues raised by her May 30
letter
and the
State’s
Motion,
At
that
time, Ms. McBride declined to
discuss the issue ofwhether the PCC Discovery Requests seek to
elicit
information relevant
to the issues in this
case
and/or
calculated to
lead to
such relevant
information
and
the
production
of
documents
possessed
by
the
State
that
contain
such
information.
During that
conversation,
Ms. McBride
stated that
Thomas Davis,
Chief
of the
Environmental Bureau
of the Office of
the
Attorney General of Illinois, had
written the
State’s
Motion.
13.
On
June
10, Ms.
McBride,
Mr. Ewart, Mr. Davis, Mr. Hedinger
and
I met at the
offices of
the
Attorney
Illinois
Attorney
General
in
Springfield,
Illinois
to
discuss the matters
that
are
subject of Ms. McBride’s May 30
letter
and
the State’s Motion.
(This
meeting
required
me to travel from
Kansas
City, Missouri to
Springfield at considerable expense to PCC.)
At
that
meeting, Mr. Davis
informed Mr. Hed.inger arid
me that it is
the State’s position that it
will
not,
prior to the issuance
of a ruling
on the State’s Motion,
discuss
with PCC the issue ofwhetherthe
PCC
Discovery
Requests
seek
to
elicit
information
relevant
to
the
issues in
this
case
artdlor
KC..109$951-1
2$~47I3
BSPM
NO.
102
)J,
D
JUN.
12.
2003
4:54PM
calculated to lead to such relevant information and the production of
documents
possessed by the
State that contain such information.
At that meeting, Mr. Davis also stated indicated that he had
not up to
that point in time read the
individual
interrqgatories and production requests contained
in
the
PCC
Discovery Requests; and Ms. McBride
stated at the nieetii,ig that she had not read afl
of those individual inteirogatories and production requests until
June
9.
Further afflant sayeth not.
W.
C. Blanton
STATE OF
MISSOURI
)
)
ss.
COUNTY OF JACKSON
)
Subscribed and sworn to before me, aNotary Public in and for said County and
State, this
/~~Uay
ofJune, 2003.
Notary
Public
My Commission
Expires:
7—-C~,
KC.10959S1.I
25~7/3
4
~.
.JUN.
12. 2003
4:55PM
BSPM
NO. 102
P.
9
TJ’~W
FIRM
SANDERS PEPER MARTN
2300
MArN STREEt’
SUT~E~ooo
KANSAS
CITY,MO
64103
P.O.
BOX 4’9m
KANSAS crry
MO 6441’6m
TEL:
(816)
983-8000
PAX
(816)
983-8080
WEBSITE:\vw.b~acj~we1Is~rtder~.corn
W.C. SLANTON
DIRECT FAX:
(816) 983-9~.5I
DIRECT:
(816) ~
E-MAIL
wbI~ntonebIacL~nde~.com
March
25,
2002
REC~~VED
AUORN~.y
GENERAL
Jane
B.
McBride
MI~Y
2
7 2003
Environmental
Bureau
Assistant
Attorney General
ENV~1ROI~1WL~~
AAL
500
S.
Second St.
Springfield,
XL
62706
Re:
People ofthe State offlhinois v. Peabody Coal Company
PCB Case
No.
99-134
Our File No.
2597-3
Dear Jane:
Enclosed
and hereby
served upon
you
are
copies
of the
following
discovery
requests
directed
to
the
State
by
Peabody
Coal
Company
(“PCC”)
in
connection
with
the
above-
referenced matter:
•
Peabody’s Third Set OfInterrogatories To The State;
•
Peabody’s Fourth Set OfRequests To The State For The Production OfDocuments;
•
Peabody’s Fourth Set OfInterrogatories To The State;
•
Peabody’s Fifth Request To The State For The Production OfDocuments;
Peabody’s Fifth
Set OfInterrogatories To The State;
•
Peabody’s
Sixth Request To The State For The Production OfDocuments;
•
Peabody’s Sixth Set OfInterrogatories To The State;
and
•
Peabody’s
Seventh Request To The State For The Production OfDocurrients.
As
I
indicated to
you a couple of weeks
ago,
we believe the information
and documents
sought by these discovery requests
are
subject to
discovery given the nature and scope of issues
in
this case.
However, we recognize that the requests are numerous; and it is not our intention to
cause the State to undertake efforts that
are
not necessary to locate and provide us the
E~ch1bit A
KC.-1001309.1
I(ANSAS
CITY,
MISSOURI
.
ST.
L0~JIS,
MISSOURI
•
0VEIU~ND rARK.
I~ANSAS
OMAMA,
NESRASKA
SXNQPICL~,
MISSOURI
•
E~WAF.OSVILLE, ILLINOIS
-
WASMI1~GTON,D.C.
•
LO~1D0N,UNITED
IUN000M
AILIA1’I~5~
L.?13D5
A~CH~STC~
MEXICO
CCT~
•
M0~TRSAL
.
.
~,
JUN.
12. 2003
4:56PM
BSPM
,
NO.
102
P.
10
BLACKwELL
SANDERS
PEPER
MARflN
Lu’
-
•
Jane McBride
March21, 2002
Page 2
information we need in order
to respond to the State’s
claims against PCC asserted in this
case.
Accordingly, please call me to
discuss any
questions
or concerns that you have regarding these
discovery requests.
Best regards
-~
Very
truly yours,
W.C.
Blanton
WCB/cs
Enclosures
cc:
Steve Hedinger
Dave Joest
KC. 109 13
09.1
JUN.
12. 2003
4:54PM
BSPM~.
NO.
102
P.
6
~.
.
JUN 04
RE~13
OFFICE OF THE
ATTORNEY GENERAL
STATE OF XLLINOIS
Lisa Madigan
ATTORNEY
GCNERAL
May 30, 2003~
Mr.
W.C. Blanton, Esq.
Mr. Stephen F. Hedinger
Blackwell Sanders Peper Martin LLP
Attorney at Law
2300 Main Street, Suite 1000
2601
South Fifth Street
Kansas
City,
MO 64108
Springfield, IL 62703
Re;
People v. Peabody
Coal Company,
PCB 99-134
Dear Mr.
Blanton
andMi. Hedinger~
I am
writing
regarding the discoveryrequests received by
this
office
on May 27, 2003
relativeto
the
above-referenced matter.
Please consider this letter the initiation ofS. Ct. Rule
201(k) consultation regarding theserequests.
The cover letter included in
transmission
ofthese
requests, identified as Peabody’s
Third Set ofInterrogatories through Seventh Request for
Production ofDocuments, is attached hereto as Exhibit A.
As you
are
aware, Peabodypropounded
its
first request for production to the Complainant
on July 28,
1999 that included avery broad request for documents from the
files
ofthe Illinois
EPA, illinois DNR and illinois Dept. ofPublic Health.
Respondent’s
first
set of
interrogatories
was propounded upon the
Complainant
on November
4th,
1999,
and included
45
interrogatories.
Respondent’s second request for production was propounded upon Complainant on November
5,
1999, and included
very
broad individual requests for documents from the files ofthe illinois
State Geological
Survey,
the Illinois State Water Survey, the Illinois EPA
and
the Illinois DNR.
Respondent propounded its second set ofintenrogatories
and third request for productionof
documents on
March
15, 2000.
The
thIrd set of
interrogatories requested disclosure of opinion
and fact
witnesses.
Said disclosure was completed by Complainant, reserving
its right to
disclose
additional
rebuttal
witnesses,
on
May
23, 2003,
pursuant to the
discovery schedule that has been
established in this matter.
All ofthe above-referenced requests have
been complied with
and
havebeen
supplemented by
the
Complainant.
Complainant
is currentlyabout to provide
the Respondent
500 Sout1~
Second
S~rect,Springf~o~I~TTY~
(217) 785~2711
•
Fax: (217)
782-7046
100
Wcst Rsitdolph
Strc~E,
Chic~g
•
TTY:
(312)
814-3374
•
I~ax
(312) 2144806
1001
East Main, Ca.r~ondslc,
III
Y:
(518)
529.6403
•
Fax:
(618)
S29-6416
NO.
102
P.
1
~~JN
12
2003
4:55PM
BSPM
Mr. W.C. Blanton, Esq
May30, 2003
Page 2
with another
supplemental production, which will
be
followed in due time by
another
supplemental production.
These supplemental productions include documents that have come
into being through the duration ofthis case.
As
stated above, the Respondent has already propounded 47 interrogatories.
The
recentlyreceived sets ofinterrogatories consist ofthe following: third set,
12 interrogatories;
fourth set, 30 interrogatories; fifth set,
17 inteitogatories, sixth set,
15 interrogatories.
Further,
also as stated above, the requests to produce propounded prior to the most recent requests were
very broad requests concerning the files offive state agencies.
The most recently
received
requests number as follows: fourth set ofrequests,
21
individual requests for production; fifth set
ofrequests, 57 individual requests for production; sixth set ofrequests, 26 individual requests;
seventh set ofrequests, 24 individual requests.
Many ofthe requests and
interrogatories
contained
within
the third through seventh requests recently propounded are duplicative ofprior
requests.
The recent disclosure concerning witnesses and the opinions
and
conclusions of
controlled experts are responsive to both
any
outstanding requests and also to many ofthe
recently propounded requests.
It is
incumbent
upon the Respondent to justify
this
newlypropounded, tremendously over
burdensome set of discoveryrequests.
This is particularly so
given
the rçcent
efforts
to establish
adiscovery schedule that already has placed pressure
on counsel to
timely
and succinctly
undertake and
expedite all remaining discovery so that this
matter
might proceed to hearing.
Therefore, Complainant, as a somewhat unorthodox request,
asks
the assistance ofthe Hearing
Officer in quickly resolving this discovery dispute.
With this letter, Complainant is asking
that a
status conference be scheduled as early as
the
later
part
ofnext
week,
at whichtime counsel, with
the assistance ofthe Hearing Officer, may conduct adiscussion that will resolve this discovery
matter.
This request is
designed
to provide for a timely resolution ofthis dispute, so that the
Complainant might
quickly
ascertain upon order
Qf
the Heaiing
Office exactly whichrequests are
considered justifiable and thereby requiringresponse.
The
time
oflater next
week is requested so
that Tom
Davis,
Bureau Chief, might participate in this discussion.
As stated in Complainant’s response to Respondent’s motion for leave of
Counsel
W.C.
Blanton to appearpro
hac vice,
filed in this matter on February 11, 2002, in paragraph 18 on
page 4 ofthe response:”..
Complainant objects on
the grounds
that Mr.
Blanton’s entry of
appearance
in this matter is being submitted relatively late in the litigation~The parties have
already tendered discovery requests, and Complainant has already made available the files of four
state agencies in response to those discoveryrequests....”
In support ofthis objection,
Complainant cited the following case, at para~aph
22 ofthe response;
22.
In the case of
Hallmann v.
Sturn Ruger & Co.,
31
Wash. App 50 (1982),
NO.
102
P.
8
JUN.
12.
2003
4:55PM
BSPM
Mr.
W.C. Blanton,
Bsq
May30, 2003
Page3
639
P.2d
805, cited in Michael A. DiSabatino, J.D., Annotation, Attorney’s Right to
Appear
Pro Flac Vice
in State Court,
20 A.L.R. 4~
855
(2001), the court reversed a trial
court’s revocation ofan Alaska attorney’s adrnissionpro
hac
vtce
to
represent
clients in
civil litigation because the trial
court had acted on its own motion without having
given
prior
notice or
having held a.
hearing.
But in its ruling, the
court said that the trial court
had been.
understandably concerned that the Alaska attorney had commingled the
Washington
case
with cases pending in.
other
jurisdictions, had
attempted to consolidate
discovery in these actions~
and
bad submitted
lengthy memoranda which in
the trial
court’s
mind contained
irrelevant
authority
from
other
jurisdictions and
created what the
trial court termed a “monstrosity”
of
a case,
The court
stressed that the
clients
of
the
out-
of-state
attorney
had
an
interest in
retaining
the
attorney
of
their
choice, but that their
interest had
to be
balanced with
the court’s responsibility to insure order,
and with the
opposing counsel’s interest in his
abilityto proceedwith the litigation without scheduling
complications.
The court said that these competing interest could best be protected if, on
remand to the trial court,
inquiry
were
limited to
whether the acts
of
the out-of-state
attorney violated the code ofprofessional responsibility, or were contemptuous ofthe
court, or adversely affected
the conduct of
the
litigation.
It appears that
the
predictions
contained
within Complainant’s objection to Mr. Blanton’s
enl~y
in
this case have indeed come true.
I will soon place a call to Mr. Halloran to inquire whether he would be willing to set the
requested
status
conference and
participate in discovery dispute discussions so
thatthis issue
might be quickly resolved.
Sincerely,
7
~
~
Jane
B.
McBride
Assistant Attorney General
(217)
782-9033
cc:
Mr.
Bradley P. Halloran, Esq.
Mr.
Stephen
Ewart,
Esq.
Mr. Thomas Davis, Esq.
~~~JLJN.
12.
2003.
456~M
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LisaMadigan
A1~ORNEY
CENER~J~
OFFICE
OF
ATrORNEY GENEl~AL
S~ jOFILL1~OXS
•
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FAXT
SMrrTAL~SHEET
ENVIRONMENT~BUREAU~
SPR~NGFI~LD
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DATE:
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NUMBER Of~PAGES:
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(!NCLLJpJNG
ThIS
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HARDCOPYTOFOLLOW:_
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NO
IF
YOU DO
NOT RECEIVE ANY O~ ~1EPAGE~
PROPERLY,
PLEASE
CONTACT S~NDERJCALL
BACK ~
~S0N AS.S0ON
AS POSSIBLE.’
Contact Person:
-
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Phone No.
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~IT.
NOTPC~:
ThrS
IS A
FAX T~ANSMI~s~J*.1
OF A1TO~NEY
PRIVILEGED ANDIOR CONFIDENTIAL
INFORMATION.
IT IS
INTENDED
O~LfrhFOR
ThE USE
OF
THE
INDIVIDUAL
OR
ENTiTY
TOWHICH
IT
Is
ADDRESSED.
(F YOU
HAVE
RE~E~Eo
THIS
CO~1MUNICATION
IN
E~RORJ
PLEASE NOTiFY
THE
SENDER
AT
THE ABOVE TELEPHd~N~
t4UMBER AND
DESTROY THIS
rRANSMIITAL.
IF YOU ARE
NOT
THE
INTENDED RECIPIENT,
YDL~
~REHER~&~
NOTIFIED ThAT
ANY RETENTION
OR
DISSEMINATION OF THIS INFORMATf~N
IS STRICTLY PROHIBITED.
ThANK YOU.
NOTES:
!?O6
‘.
(2~7~75~.1O~O
•
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(!t7)
753.2771
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PM
rri~~
riu.
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(b24T14(’~Q,1
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P.
12
p,
02/02
Mr. W.C.
Bianton. Esq.
Blackwell Sanders Peper
MattinLLP
2300 Main Street, Suite 1000
~nsas
City,
MO
64108
Via
Pacsimfle
(816)
983-8151
Re:
People v.
Mr. Haflo~an
is available for a brje~
discovery requests at 9:15 A.M. on
Thux~
written
motion
prior to his partIcipation in
that
we would transmit a written
motion~pi
reminds theparties
that he is scheduled ~o
suggests we attempt
to resolve
the
issue
I would
ask
that you provide a
to facilitate
any
discussion
that might
b4.p
response to
indicate which portion ofth~
~
explanation as to why you feel the reznain~
Dear
Mr. Blanton and
Mr.
Hedinger:
ATTORNEY GENERAL
~•.f’E
OF
IL.r.~iNOls
Mr. Stephen F. Heding~
At~4orney
at Law
26Q1
South
Fifth
Street
Spiingfied,
1L
62703
Via Facsimile
(217)
523-4366
*ody
Coal Company,
PCB 99-134
~~tatusconference
on
the
issue ofyour recent
4’,
June
5.
He has asked thatwe provide him with
a
~iscussions
on
this
dispute.
I have indicated to him
to the rime ofthe status conference.
He also
on family leave in
the very near future.
Ie
~prehe is called away.
~nse
to my letter ofMay 30. 2003,
as soon as possible
psible
prior to Thursday.
We would expectyour
~ent
request you
are
willing to
withdraw,
and an
lér oftherequest is
justified.
Sincerely,
~
~
Jane B.
McBride
Assistant Attorney General
(217)782-9033.
JUN.
12. 2003
4:56PM
OFFICE OF
~r
~rl1
Lisa Madigan
/~rroI~Ns’Y
CENhR~
2, 2003
cc:
Mr.
Stephen Ewart, Esq.
300 South
~
Seri~c~,
Springftcld.
1~I~4i~
100
W~t~ftn~lOlpl1
S~ro~.
Ch~~to,
flhi~c~I~
1001
E~Ma~rt.C
h~od~Ie.
f1Unui~~
2706
(217) 752.11)90
a
ii’Y~
(217)
755-2771
‘
~
(217) 7F2-7046
)60I
•
(3)2) 814—31)00
•
‘rry:
(312)
~143374
)?I~
(312)
814—3806
•
(~1B)52(1-
‘100
°
TTY:
((,1S)
52(1-6403
•
T~(611~)329.~l)6
JUN.
12. 2003
4:56PM
BSPM
NO. 102
P.
13
Blanton,WC
From:
Blanton. WC
Sent:
Tuesday, June
03, 2003
1:48
PM
To:
‘JANE MCBRIDE’
Cc:
‘hedinger~cityscape.net
Subject:
RE: People v. Peabody Coal,
DepositiQns
This
is
in response to your fax late yesterday.
Neither Steve Hedinger nor
I
have received any letterfrom you dated ~‘1ay
30 regarding PCC’s most recent sets
of discovery requests. That makes
it
a little hard
to respond
to your fax.
O~ginai
Message--—-
From: JANE MCBRIDE (mailto:JMCBRlDEc~atg.stateJI.us)
Sent: Wednesday, May 28, 2003 9:45
AM
To: wbtanton@BlackWeflsaflderS.C0m
hedinger~cityscape.net
Subject:
People v. Peabody Coal, Depositions
Steve and
WC
The only
dates where
I
have three consecutive days of availability for
all concerned, for depositions,
are July
1
through 3.
Please call
me today
regarding the scheduling of deposition.
(217)
782-9033.
Jane McBride
EXHiBIT
3
1
~IVL4~flj~L
FiX NO.
2I752477~NO.
102
P.
14?.
01
20(?3r,
4
5~P~uz~BSPM~
~
~
~
OFFICE
OF
ATTORNEY
GENERAL
*1~TEOF ~LUNOIS
-
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FAXT~
‘NSMJTTAL SHEET
ENVIRONMENt
L BUREAU
-
SP~INGFIELD
•
FAX’~fl.
(217)524-7740
•
__________________
Lisa
Madigaii
ATTORN~Y
CE~EP.AL.
DATE~
TO:
FAX NO:
FROM:
PHONE NO:
—.t~
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•
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k-~’~-~
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NUMBER 01
PAGES:
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(INCLUDING
THIS
PAçSE)
HARDCOPYTOFOLLOW;___
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IF YOU
DO NOT RECEIVE ANY O~
~HE PAGES
PROPERLY,
PLEASE
CONTACTSENDER/CALLBACK ~RSON
ASSOON AS POSSIBLE.
Conta~Person:
_________________
Phone No.
NOT1C~:
THIS
IS A
FAX T
NSMI~SI~N
OF
AT~RN~Y
PRIVILEGED ANDIOR CONFID~NT1AL
iNFORMATION.
IT IS INTENDED
~
FOR TH~U~E
OF THE INDiVIDUAL
OR
ENTiTY
TO WHICH IT
IS ADDRESSED.
IF YOU
HAVE RE9EfrED THIS COMMIJNICATION
IN ERROR,
PLEASE
NOTIFYThE
SENDER AT THE ~8OVE TELEPHo1N~:NuMsER
A1~DDESTROY THIS
TRANSMITTAL.
LF YOU ARE
NOT
THE iNTENDED
RECIPIENT,
YOLJ~ARE
HEREBY
NOTIFIED THAT
ANY
RETENTION
OR
DISSEMINATION
OF‘rHIS INFORMAT~bNIS STRICTLY PROHIBITED
THANK
YOU.
NOTES:
500
Soueh S~otuJ
(217)
75!-t090
—
rrv: (2(7)
755.2771
•
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P.
15~
02
JUN.
12. 2003~4:5?PM’~rBSPMLV1~U~NF~L
F~XNO.
217524774N0.
102
I,
.~
—
OFFICE OF
n.e;
People
v.
Lisa Madigan
ATTORNEY GENCRItL.
Mr.
W.C.
Blanton, Esq.
Blackwell
Sanders Peper
Martin
LLP
2300 Main Street, Suite 1000
Kansas City, MO 64108
ATTORNEY GENERAL
OF ILLINOIS
Nfr
Stephen F.
Hedinger
A~ttomey
at Law
2~01
SouthFifthSfreet
S~ringfie1d,
U1 62703
CoaA Company,
?CB
99-134
Dear Mr. ~1antonandMr. Hedinger:
I am
‘writing regarding
the
discoye~y
requests ~eceived
by
this
office
on May
27, 2003
relative to the above-referenced matter, tP~ase
consic~er
this
letter
the initiation
of S. Ct, Rule
201(k) consultation regarding these
rq~e~s.
The cover
letter included in transmission of these
requests, identified as Peabody’s Third ~~ouIuterro~atories
through
Seventh Request for
Production ofDoctrrnents, is attachedli~1r~o
as Exhibit A.
As you
are
aware, Peabodyproç)b4~ded
its first request for production to the
Complainant
on.~u1y
28,
1999 that included a very br~o
request
fgr documents
from the files Df the Illinois
EPA, Illinois
D’NR.
and IllInois tlept. o~’ blic HeaItl~.Respondent’s first set of
interrogatories
was propounded upon
the Coniplainarit~o
Novembe~
4~,1999, and. included 45
interrogatories.
Respondent~ssecond request for produ~tin was
propounded upon Complainant
on November
5,
1.999,
arid
included
very broad individu~Ibequests
fb~
documents from the flies ofthe Illinois
State Geological Survey, the flLinois
St~t~WaterSu~’ey,
the Illinois EPA
arid the flhlnois DNR.
Respondent propou.ndeci its second set
~
fnterrogato~ies
and
third request forproduction of
documents on March
15,
2000.
The thjr
~setofinter~ogatories
requested disclosure of opinion
and
fact witnesses.
Said disclosure wa~
~rnp1etedi~y
Complainant,
reserving
its
right
to
disclose
additional rebuttal witnesses, on May 2~,)~2O03,
purst~ant
to the
discovery
schedule
that has been
established in
thismatter.
All ofthe above~referenced
req~e~ts
havebe~n
complied with
arid
have been
supplemented by the Complainant.
Co~1ainant
is ~un’ently
about
to provide the Respondent
500
Souch
.c~~nd
Str~c~,
Springt~kld.lit
l~f
27~6
•
(Z17) Thz-1090
•
arTy:
(2171 72S-Z771
‘
F~
(217)
7.I(2704&
ion
W~c
Rzc~doIp~
S~r~v.
Chi~go,
FI)incji~
~4~)6O(
•
(312)
‘144000
rr~~
(312) b143374
•
~
(3~2)
31~$0f~
ftflAft
~..
M~n
~
tI1inc~h2’~Qi1
•
(MS) 5Z~00
•
TT’~
(MS)
529.(~03~
~
(5(b)S294416
30,
20O~3
F~XNO.
217524774N0. 102
P.
16
p
03
II
I,
JUN.
12. 2003~4.5PM~rSPMVI~UNfl~NIAL
/
I
Mr. W.C. Blanton, Esq’
‘May 30~
2003,,
Page 2
~‘
f: j~
with
anothersupplemental
production, \~h~h
will
e followed in
due
time
by another
supplemental production.
These supple~a~tal
pr4!uctions include documents thathave conic
into being
through
the duration ofthis c~sc~ç
As stated above, the Respondent 1!~isalready ~ropbunded47
interrogatories.
The
recently
received sets ofinterrogatories ço~jsistofthe ~o’l1owing:
third set,
12 irnerrogatories;
fourth
set, 30 interrogatoxies; fifth set, 1fr~teitogatotjes,
sixth set,
15 interrogatories.
Purther,.
also
as
stated above, the requests to pro4u~
propounded prior
to the most recent requests were
very broad requests concerningthe files(ofiive state agencies,
The most recently received
requests number as follows: fourth set o~~quests,
21 ~ridividual
requests
for
production;
fifth set
ofrequests,
57
individual requests
fbrp~oç~~kictIon;
sixth
set ofrequests, 26 individual requests;
seventh set ofrequests, 24 ind~vidua1reqi~sts.Many~of
the requests
and
interrogatories
contained within the thirdthrough sever~t~’.iequests
recently
propounded
are
duplicative ofprior
requests.
The recent disclosure conccn~in~
witnesses
!and
the opinions
and
conclusions of
controlled
experts are responsive
to bot~
~y
outstanding requests
and also to many
ofthe
recently propounded requests.
It is incumbent upon
the
Respoi~d~it
to justlf~
this newly
propounded, tremendously over
burdensome set ofdiscovery
requests.
fl-p.s
is particu~arIy
so given
the
recent
efforts
to establish
a discovery schedule that already has pl~c~d
pressure ~n counsel to timely
and succinctly
undertake
and expedite
all
remaining
di~c~very
so th~t
this matter might proceed
to hearing.
Therefore, Complainant,
as a somewha~u~orthodox
r~quest,
asks the assistance ofthe Hearing
Officer in quickly resolving this discovç~x~dispute.
With this letter, Complainant is askingthat a
status conference be scheduled as early~1~he
later
pä~rtof
next week, at which time counsel,
with
the assistance ofthe
Hearing
Officer, n1a~conduct
a ~I~cussion
that will resolve this discovery
matter.
This request
is designed
to pro~i~
for a tim~ly
resolution ofthis dispute, so that the
Complainant might quickly
ascertain
u~o~
orderofthe Hearing Office exactlywhich requests
are
considered justifiable
and thereby
requi~i~
response.
The time oflater next week is requested so
that Tom Davis, Bureau Chief, might p~rftcipate
in this discussion.
As stated
in Complainant’s res~i0x~e
to R~spdndent’s
motion for leave ofCounsel W.C.
Blanton to appearpro
kac vice,
filed
in1r1~s
matter
or$
February
11, 2002, in paragraph iS on
page 4 of
the
response:
.
.
Coxnplain~itobjects
on~the
grounds that Mr. Blantorfs
entry
of
appearance
in this
matter
is being subrt1it~d
re1ativel~’
late in the litigation.
The
parties
have
already tendered discovery
requests, an~
~ompIainarit
has already made available the files of four
state agencies in response to those discç~~tyrequests.
...“
In support ofthis objection,
Complainant cited
the following case, ~t
•aragrap,h 22 of the response~
22.
In the case
ofJf~
iann
v. Stu~nRuger
& Co.,
31
Wash. App
50(1982),
JUN.12. 2003~4:57PM’”~
LBSPM~VI~UI~II~I\(IIIL
FF~X NO.
217524774N0,
102
P.
17
~
Mr~W.C.B1anton,Esq
May3O,2003
Page3
I!;
639 ?.2d.
805,
cited in Michael
4~..
~ iSabatino
~.1D.,
Annotation, Attorney’s Rightto
Appear
Pro Hac Vice
in State
C4u~,
20 A~L.R.
44~
855
(2001). the
court
revex~ed
a trial
court’s revocation ofat~.
Alaska
~tt~rney’sadn~ission
pro hac vice
to represent
clients
in
civil litigation because the
trial c~b4~t
had
acte4
on its
own
motion
without
having
given
prior notice or
having held a
hea~t~.
~ut in its
ruling,
the
court said that the
trial court
bad
beenunderstandably concer4~e~
that
the
A4aska attorneyh&lcommingled
the
Washington case
with
cases pen~I~4g
in other
jurisdictions, had
attempted
to
consolidate
discovery in these
actions,
and
h~4~submitted
lengthy memoranda
which in the
~ial
court’s mind contained irrelev9 ~thority fro~n
other jurisdictions ~nd
createdwhat the
trial
court
termed a
“monstrosity” ~f a case.
The
court stressed that
the
clients
of the out-
of-state attorney had an interest
~n~etaining
th~
attorney
of their choice,, but that their
interest bad to be balanced
with
court’s re~ponsibility
to
insure
order, and with the
opposing counsel’s interest in hirs
~iUty
to proceed with the litigation without scheduling
complications.
The court
said
tha~hesecom~4eting
interest
could bestbe protected i±;
on
rernai~c1
to
the trial
court, inquiry
‘4~re
limitedIto whether theacts ofthe out-of-state
attorney violated
the
code ofprc~f1~sional
resp~nsibI1iry,or were contemptuous ofthe
court,
or adversely afIected the
Cf
a ~duct
ofthe!Zitigation.
It appears that
the
predictions
cc6
~inedwithip Complainant’s objection to Mr. Blanton’s
entryin
this
case have
indeed come tru~:. I!
I will soon place a call
to Mr.
Thi
~rau
to inquire whether he would be willing to set the
requested status conference
aitd
partici~a
~in discovày dispute discussions so that this issue
might be quickly resolved.
$inc~rei~
~‘ane
E. McBride
Assistant Attorney General
~217)782-9033
~
cc:
Mr. Bradley P. Hafloran, Esq.
1
1
Mr. Stephen
Ewart,
Esq.
Mr. Thomas Davis, Esq.
.1
Ii
fl~L~Llj~L~111flL.
2003
4 58PM
—~
BSPM
~
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Lisa
Madigari
ATTORNEY
GE?4EPAL
O~’FTCE
OF TI
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FAX TR~
ENVIR0NMENTA
FAX
NC
DATE;
6
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43
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BUREA(J- SPRINGFIELD
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12.
Phone No.
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK’S
OFF!(~E
PEOPLE OF
THE
STATE
OF ILLINOIS,
)
.
JUN
1.
7
2003
)
STATE OF
ILLINOIS
Complainant,
)
Pollution Control Board
v.
)
PCB 99-134
)
PEABODY COAL COMPANY,
a Delaware
)
corporation,
)
)
Respondent.
)
AFFIDAVIT
OF STEPHEN
F. HEDINGER RELATING
TO STATE’S MOTION FOR PROTECTIVE ORDER
Stephen F. Hedinger, being first duly sworn,
states as follows:
1.
The
statements made
herein are based
upon
my personal knowledge,
and
I
am
competent to
testify hereto.
2.
I am an attorney duly licensed to
practice law in the State of Illinois;
and I am one
of the attorneys of record for Respondent, Peabody Coal Company (“PCC”) in connection with
the above-captioned matter.
3.
This affidavit is being filed with the Illinois Pollution Control Board (“Board”) as
part ofPCC’s opposition to Complainant’s Motion For Protective Order (“State’s Motion”), filed
in this matter on or about June
41
by Complainant, People of the State of Illinois (“State”).
4.
On
or
about
July
28,
1999,
State
served
upon
PCC
a
set
of
interrogatories
consisting of 21 numbered intcrrogatories with
a total of
54
subparts and a set of requests for the
production of documents consisting of six individual production requests.
1
All
dates
stated herein are for the
year 2003, unless specifically stated otherwise.
KC-1O9597O-1~
2597/3
5.
On
or about
August
26,
2002,
the
State
served
upon
PCC
a
second
set
of
interrogatories consisting of 26
numbered interrogatories with
a
total of
675
subparts
and a
second
set
of
requests
for
the production of
documents
consisting
of
23
broad
individual
production requests.
6.
On June 4, I received via U. S. mail a letter from the State’s attorney of record
in
this matter, Jane E. McBride, dated May 30
and addressed to W. C. Blanton and me.
A copy of
this letter is attached to the Affidavit OfW. C. Blanton Relating To State’s Motion For Protective
Order (“Blanton Affidavit”), dated June 12, 2003, as Exhibit
1.
7.
Prior
to
my
receipt of Ms. McBride’s
May 30
letter,
I received
via facsimile a
letter from Ms. McBride dated June 2
and
addressed
to Mr. Blanton
and me, a copy of which is
attached as Exhibit 2 to the Blanton Affidavit.
8.
On June 3,
Ms. McBride transmitted her May 30
letter described above to me via~
facsimile, with that transmission being initialed at 4:37 p.m.
A copy of that copy of the letter is
attached as Exhibit 4
to
the Blanton Affidavit.
9.
On June 4,
Ms. McBride
transmitted
to
me via
facsimile a copy of the State’s
Motion,
which
apparently was transmitted
to
the
B’oard for filing that
day.
That transmission
was initiated at
10:34 a.m.
-
10.
Prior
to
my
receipt
of the
copy of
the
State’s Motion
transmitted
to
me
via
facsimile, Ms. McBride and I had not
discussed the State’s objections to the discovery requests
directed to
the State by PCC that are the subject ofher May
30 letter and the State’s Motion.
11.
On
the
afternoon
of June
4,
Mr.
Blanton
and
I
placed
a
telephone
call
to
Ms.
McBride to
discuss the issues raised
by
her
May 30 letter
and
the State’s Motion.
At
that
time, Ms. McBride declined to discuss the issue of whether the PCC Discovery Requests seek
to
KC-1O9597O-1~
2597/3
elicit
information relevant to
the issues in
this
case and/or calculated to lead
to
such
relevant
information
and
the
production
of
documents
possessed
by
the
State
that
contain
such
information.
During that conversation,
Ms.
McBride
stated that
Thomas Davis, Chief of the
Environmental Bureau of the Office of the Attorney General of Illinois, had written the State’s
Motion.
12.
On June 6, I contacted Ms.
McBride by
telephone and
requested a meeting to be
attended
by
Ms.
McBride, Mr. Davis,
Mr. Blanton,
and
me
on
June
10
to
discuss
the issues
raised by Ms. McBride’s May 30 letter and the State’s Motion;
and that meeting was agreed to.
13.
On June 10,
Ms. McBride, Mr. Davis, Stephen C.
Ewart, Mr. Blanton and
I met at
the offices of the Attorney General of Illinois
in Springfield,
Illinois
to discuss the matters that
are subject of Ms.
McBride’s May 30 letter and the State’s Motion.
At that meeting, Mr. Davis
informed Mr. Blanton
and me that it is the State’s position that it will not, prior to
the issuance of
a
ruling on
the State’s
Motion,
discuss with
PCC
the issue
of whether the
PCC Discovery
Requests
seek to elicit
information relevant to the issues in this
case and/or calculated to lead to
such relevant information and
the production of documents possessed by the State
contain such
information.
At that meeting,
Mr. Davis also indic~atedthat
he had not up
to
that point
in time
read
the
individual interrogatories
and
production
requests
contained in
the
PCC
Discovery
Requests; and Ms.
McBride stated
at that meeting that
she had
not read
all
of those individual
interrogatories and production
requests
until
June 9,
which
was
five days after the
State
had
served its motion
for protective order.
KC-1O9597O-1~
2597/3
Further affiant sayeth not.
Ste~~
F.
dinger
STATE OF ILLINOIS
)
)
ss.
COUNTY OF SANGAMON)
Subscribed and
sworn to before me, a Notary Public in
and for said County and State, this
\‘1~dayofJune, 2003.
Notary Public
My Commission Expires:
~=uo?~ $~EOPIWNO~
KC-1O9597O-1~
4
2597/3
