BEFORE THE
ILLINOIS POLLUTION
QONTROL BOARD
RECEIVED
CLERK’S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
JUN
2
4
2003
Complainant,
)
STATE OF ILLINOIS
Pollution
Control Board
v.
)
PCB NO. 99-1 34
(Enforcement)
PEABODY
COAL COMPANY,
a Delaware corporation,
)
Respondent.
NOTICE OF FILING
To:
David
R. Joest
Stephen
F.
Hedinger
Peabody
Coal Company
Attorney at
Law
1951
Barrett Court
2601
South Fifth
Street
P.O.
Box 1990
Springfield,
IL 62703
Henderson,
KY 42420-1990
W.
C.
Blanton
Blackwell
Sanders Peper
Martin LLP
2300 Main
Street,
Suite
1000
Kansas City,
MO 64108
PLEASE TAKE
NOTICE that on this date
I mailed for filing
with the Clerk of the Pollution
Control
Board
of
the
State
of
Illinois,
MOTION
FOR
LEAVE
TO
REPLY TO RESPONDENT’S
BRIEF
IN
OPPOSITION
TO
STATE’S
MOTION
FOR
PROTECTIVE
ORDER,
REPLY
TO
RESPONDENT’S
BRIEF
IN OPPOSITION TO STATE’S MOTION
FOR
PROTECTIVE
ORDER
and
PROTECTIVE ORDER.
Respectfully submitted,
PEOPLE
OF THE
STATE OF ILLINOIS
LISA MADIGAN
Attorney General of the
State of Illinois
MATTHEW
J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:
~
~9
~JANE
E.
McBRIDE
Assistant Attorney General
500
South
Second Street
Environmental Bureau
Springfield,
Illinois 62706
217/782-9031
Dated:
June
19, 2003
CERTIFICATE OF SERVICE
I
hereby
certify
that
I did
on June
19,
2003,
send
by First Class Mail,
with
postage
thereon
fully
prepaid,
by depositing
in
a
United
States
Post
Office
Box a
true
and
correct copy
of
the
following
instruments
entitled
NOTICE
OF
FILING,
MOTION
FOR
LEAVE
TO
REPLY
TO
RESPONDENT’S
BRIEF
IN
OPPOSITION TO STATE’S
MOTION
FOR PROTECTIVE ORDER,
REPLY TO RESPONDENT’S BRIEF IN OPPOSITION TO STATE’S MOTION FOR PROTECTIVE
ORDER and
PROTECTIVE
ORDER
Stephen
F.
Hedinger
Hedinger Law Office
2601
South
Fifth Street
Springfield,
IL 62703
W.
C.
Blanton
Blackwell
Sanders Peper Martin
LLP
2300 Main
Street,
Suite
1000
Kansas
City,
MO
64108
and the original and ten copies by First Class Mail with postage thereon fully prepaid of the same
Dorothy Gunn,
Clerk
Illinois
Pollution
Control
Board
State of Illinois
Center
Suite
11-500
100 West
Randolph
Chicago,
Illinois
60601
To:
Brad
Halloran
Hearing
Officer
Pollution Control
Board
James
R.
Thompson
Center,
Ste.
11-500
100 West Randolph
Chicago,
IL 60601
~
,.A~neE.
McBride
Assistant Attorney General
To:
David
R.
Joest
Peabody Coal
Company
1951
Barrett Court
P.O.
Box 1990
Henderson, KY 42420-1990
foregoing instrument(s):
To:
A copy was also sent
by
First
Class
Mail with postage thereon fully
prepaid
This filing
is
submitted on
recycled paper.
RECEiVED
BEFORE
THE ILLINOIS
POLLUTION
CONTROL BOARD
CLERK’S
flpflnr
PEOPLE OF THE STATE
OF ILLINOIS,
)
JUN
2
4
2003
Complainant,
)
STATE OF
ILLINOIS
Pol!ut~onControl Board
v.
)
PCB
NO.
99-1 34
(Enforcement)
PEABODY COAL COMPANY, a Delaware
corporation,
)
Respondent.
MOTION
FOR
LEAVE TO REPLY TO RESPONDENT’S
BRIEF
IN
OPPOSITION
TO STATE’S MOTION
FOR PROTECTIVE
ORDER
NOW
COMES,
Complainant, PEOPLE
OF
THE
STATE OF ILLINOIS,
and
moves for
leave to
reply to
Respondent’s Brief in
Opposition to
State’s
Motion for Protective Order,
on the
following grounds:
1.
On
June
2,
2003,
Complainant notified the hearing officer of the existence of a
discovery dispute
between
the parties
and
requested
a hearing with
regard to
the dispute.
2.
On June
4,
2003,
Complainant filed
a motion
seeking a protective order from
the
Hearing
Officer regarding Respondent’s
third through sixth sets of interrogatories and fourth
through seventh
sets of requests for production
of documents.
3.
On
June
5,
2003,
a hearing
was held
on
the matter
at which time the
Hearing
Officer directed the
Respondent to file
its response
by June
12,
2003.
4.
On June
12,
2003,
Respondent filed
its
response
via facsimile.
5.
On June
13,
2003, Complainant
received
the faxed
response.
6.
On June
16,
2003,
Complainant received a hard
copy of the original response
and
a copy
of a
corrected
affidavit for Attorney W.C.
Blanton.
7.
Complainant will
be
materially prejudiced
if
it
is
not allowed
to dispute the factual
statements within Respondent’s
Brief in Opposition
and
to
rebut
Respondent’s contentions
regarding Supreme Court Rule 201(k) correspondence and
discussions.
Complainant
contends that
Respondent has
mischaracterized and
misrepresented the Supreme Court Rule
201(k) communications and
Complainant disputes the factual statements
contained within the
response.
Complainant believes
it will suffer material
prejudice if not allowed
to reply.
8.
Further, with its
response,
Respondent filed
a Withdrawal of Interrogatories,
and
thereby withdrew
all
contested
interrogatories.
In
its withdrawal
and
response,
Respondent
contends that the
question of
its
ability to
propound additional interrogatories
is now moot.
This
question
is a
new question, that has
been
raised upon the filing of the Respondent’s withdrawal.
Complainant believes
that the question
of Respondent’s
ability to propound additional
interrogatories is not moot,
particularly in
light
of
the fact
it has
expressed
a desire to “preserve
its
right” to direct further interrogatories
to the State,
and specifically states on
page 2 of
its
withdrawal that it will,
in the near future,
seek
leave of the
Board
to direct additional
interrogatories
to the State.
The Complainant
contends the question
remains
ripe as to
(1)
whether or not Respondent has the right to direct further interrogatories
to the State,
and
if so,
on
what basis and
under what conditions,
and
(2) in what manner it
is to
petition for leave
to
propound any additional
interrogatories.
9.
Complainant files
its reply contemporaneously with
this motion.
In addition,
Complainant also
files a proposed
protective order for the Hearing
Officer’s
consideration and
signature.
2
WHEREFORE, for the foregoing
reasons,
Complainant respectfully requests leave to
file a reply
to
Respondent’s brief in
opposition
to the state’s motion for protective
order.
Respectfully submitted,
PEOPLE
OF THE STATE
OF ILLINOIS,
LISA MADIGAN
Attorney General
,State
of Illinois
MATTHEW J.
DUNN, Chief
Environmental Enforcement
Division
BY:
.t
~c-~c..-~Q
~-iANE
E.
MCBRIDE
‘
Environmental
Bureau
Assistant Attorney General
500
South Second Street
Springfield,
Illinois
62706
Dated:
June
19, 2003
3
RECLilVED
CLERK’S
OFFICE
BEFORE
THE
ILLINOIS POLLUTION
CONTROL BOARD
JUN
2
4
2003
PEOPLE OF THE
STATE OF ILLINOIS,
)
STATE OF ILLINOIS
Pollution
Control Board
Complainant,
)
v.
)
PCB
NO.
99-1 34
(Enforcement)
)
PEABODY COAL COMPANY, a Delaware
corporation,
)
Respondent.
REPLY TO RESPONDENT’S
BRIEF IN
OPPOSITION
TO STATE’S MOTION
FOR PROTECTIVE ORDER
NOW
COMES,
Complainant, PEOPLE
OF THE
STATE
OF ILLINOIS,
and
replies to
Respondent’s
Brief in
Opposition
to
State’s Motion for Protective Order,
as follows:
Introduction
Pursuant to
a
Motion for Leave
to
File a
Reply, Complainant seeks
this opportunity to
dispute the factual statements within Respondent’s
Brief in
Opposition
and to
rebut
Respondent’s contentions
regarding Supreme Court
Rule 201(k) correspondence and
discussions.
The People have
sought a protective
order from the Hearing
Officer regarding
Respondent’s third
through sixth sets of interrogatories and
fourth through seventh sets
of
requests
for production
of documents.
Pursuant to
its
Withdrawal of Interrogatories,
Respondent states that the question
of its ability to
propound additional
interrogatories
is
moot.
Complainant believes
that the question of Respondent’s
ability to
propound additional
interrogatories
is not moot.
The Hearing Officer’s
Order should
address the question
of
Respondent’s ability
to and
the manner in which
it may propound any additional
interrogatories
in order
to
resolve this discovery dispute.
Discussion
Respondent has organized
its
discussion as
follows:
(1) the
parties
Rule 201(k)
discussions,
(2) the Respondent’s
claim that the question
of the Respondent’s ability to
and the
manner in which
it may propound additional
interrogatories is
moot,
(3) the Respondent’s
claim
that the
People
have
no basis for their objection
to the fourth through seventh
sets
of requests
for production; and
(4) the Respondent’s claim that the fourth through seventh
sets of requests
seek information and
documents subject to
discovery.
Complainant
hereby replies to the
arguments
set forth
by
the Respondent,
systematically, within
a similar organizational structure.
I.
Rule 201(k)
Discussions
The most serious
points of contention regarding
Rule 201(k) are Respondent’s
characterization
and
representation of the phone
and meeting
discussions.
However,
at
the
outset, Complainant acknowledges a
prior agreement with
Respondent concerning the
previously
conducted
discovery.
Such “agreement” was
merely a
consensus achieved through
verbal discussions
relating
only
to
the previously
conducted discovery;
neither party waived or
limited
its
right to challenge
discovery requests on the substantive grounds of undue
burden,
harassment and
so forth.
This was
done in good faith pursuant
to
Rule 201(k)
in a
reasonable
attempt to
resolve differences between
the
parties and to
avoid seeking
intervention
by the
Hearing
Officer pursuant
to Section
101.616(d).
However,
the agreement
between
Complainant and
Respondent was
not intended by either party to
bind the
parties
beyond
scope
of the previously conducted
discovery.
Regarding
the newly served discovery requests, Respondent represents that counsel for
the Complainant declined
to discuss
(1) whether Respondent’s
requests seek
relevant
information to
the case
and
information
that may lead
to relevant
information,
and
(2) whether
the requests
constitute
reasonable and appropriate
means
of obtaining
information.
Further,
Respondent characterizes Complainant’s
counsel’s
efforts to bring
co-counsel
into the
discussion
as focal
to
the ability
to discuss
the requests.
Counsel for
the Complainant wholly
disagrees
with
these characterizations and
states
that such
characterizations
are a
misrepresentation.
2
Lead
counsel for the Complainant, Jane McBride,
did
not decline
to discuss any aspect
of the discovery requests.
Respondent called
Ms.
McBride
on June 4,
2003,
to
object to
Complainant’s
method
of disputing the discovery requests.
This discussion
centered
upon the
dispute
and not the requests themselves,
but Ms.
McBride did
not decline to
discuss any aspect
of the requests.
Counsel
for the Respondent insisted that they were
not willing to withdraw any
of the requests,
nor were they willing
to modify
them
in any
manner.
Counsel
for Respondent
offered no
alternative other than for the Complainant to
respond to the interrogatories and
requests
exactly as propounded.
Counsel
for the Respondent wholly placed
the burden of
objecting to
the interrogatories and seeking furtherjustification
for the interrogatories upon the
Complainant,
and
repeatedly refused
to voluntarily narrow the requests or in
any other manner
to eliminate
the expansiveness and
duplicative
nature
of the requests.
Ms.
McBride
reiterated
that the interrogatories and
requests were duplicative,
burdensome
and overly
broad given that
the Respondent had
already propounded
47
interrogatories as well as broad and
expansive
production
requests
to
which the Complainant
had
responded.
The parties agreed to
meet
along with
Ms.
McBride’s Bureau
Chief,
Thomas
Davis, and
Steve Ewart of the Illinois
EPA.
Respondent’s statements,
found
on
page 4 and
6 of its
Brief in
Opposition, that the
State
has
made
no reasonable effort to
comply with
Rule 201(k)
is wholly inaccurate.
Respondent has also mischaracterized the June
10,
2003,
meeting in
its
Brief in
Opposition.
At no
time did
Ms.
McBride or Mr.
Davis
decline
or refuse to discuss whether or not
the discovery requests
concerned information
subject
to discovery or were
reasonable means
of obtaining such
information.
In
fact, counsel for the Complainant expressed that
a discovery
request of this nature and
size was an unreasonable
means
of obtaining such
information due
to the duplicative nature of the requests and questioned whether the information sought is
subject
to discovery.
Ms.
McBride specifically asked
Respondent’s
counsel to justify the sixth
set of requests;
see
group Exhibit A to
Complainant’s
motion.
An example of these
requests of
3
follows:
Request No.
6.: All documents
relating to an alleged
exceedance of a
Part 620
Standard
allegedly caused
by operations conducted at facilities other than the
Mine, including
all
documents
that evidence any action take by
the State
after learning of
such alleged
exceedances.
Such
a request appears to seek
all documents in
Illinois
EPA and other agency files
regarding
an alleged exceedance of the
Part 620 standards
at any facility, except the Eagle
No.
2
Mine, within the boundaries of the
State for
all time,
plus all
documents that contain
any
information
regarding actions taken
regarding any
such allegation.
At the June
10th
meeting,
Respondent refused
to
narrow this request,
along
with the
25 other requests of a similar nature
contained
in the sixth
set of requests.
Counsel for
Respondent indicated they felt this request
was justified.
Early in
the day of the June
10,
2003, meeting,
Complainant received, via facsimile, a
cover letter and
list attached
hereto as
Exhibit
C.
The letter seemed
to indicate that the
Respondent was prepared
to
identify discovery requests
PCC was willing to withdraw “at this
time in
light of the Board’s recent
ruling on the State’s
motion
to
strike PCC’s affirmative
defenses
Based
on
this statement,
counsel
for the Complainant expected Respondent to
withdraw a significant portion of the requests
having
their basis
in the affirmative
defenses.
Instead, shortly after the meeting
got underway,
counsel for the Respondent indicated
they had
changed
their mind
since
the letter was
drafted
and
sent and that they were not willing
to
withdraw any of the requests.
In
its
Brief in
Opposition, Respondent represents
that both
Mr.
Davis and
Ms.
McBride
had
not read
the requests
at the time the
Motion for a
Protective
Order was
drafted.
This is
not
true,
and
is
a misrepresentation of the statements made
in the June
10,
2003 meeting.
As lead
counsel,
Ms. McBride certainly had
read the requests
at the time the requests were
received.
Mr.
Davis’ comments
about the requests concerned
the multitude of individual
requests, and
4
was in the context that he
had not studied
every
individual request and
did
not necessarily want
to
go through the requests one by one initially,
but
try
to discuss
the requests
in
terms of
concepts.
Ms.
McBride’s
comments about reading the requests was
made
in the context of the
list that was
presented with
the June
10, 2003,
letter and
in regard
to discussions on
the subject
matter of the requests,
particularly regarding
Mr.
Blanton’s statement that the last set of
requests was
merely a
reiteration of the Complainant’s
own discovery requests.
Ms.
McBride
explicitly stated that
in the last 24
hours she
had thoroughly
read
each
of the Respondent’s
requests
and that the characterization
in the list and the statement that these were
identical
requests
to
the Complainants was
not accurate
or complete.
In
fact, that very morning,
given
the list was
supplied
by the Respondent,
Ms.
McBride had
again
gone through all the requests
to compare them with the characterization
in the list.
The
list provided
Complainant on
June
10,
2003,
is similar to the
list attached
to
Respondent’s Brief in
Opposition.
Complainant believes that the
list is an
over generalization
of
the subject matter of the requests.
The requests seek a
huge expanse of information,
much
of
which is beyond the generalizations
stated
by Respondent.
Further, with
regard
to
Respondent’s
statement that
the seventh
set of requests
is
merely a reiteration of requests
propounded to
Respondent,
Complainant asked
Respondent to
justify such a
request,
particularly given the total number of requests
that have
been
propounded
since
the litigation
began and
the expansive
nature of previous
requests.
Complainant posed this question in the context of the requests No.
6,
7 and
9,
of the seventh
set.
Further,
Complainant objected to
requests of this nature
in that these
requests,
supposedly justified on
the
basis that they were similar to
requests
propounded by the
Complainant to
the Respondent,
appeared to seek
to
have the Complainant once
again
make
available
all documents
in the files of various state agencies:
Request
No.
6:
All
documents that contain
information
regarding correspondence and
5
communications between
PCC and
the
Illinois State
Geological
Survey
regarding Permit
#34.
Request No.
7: All
documents that contain
information
regarding correspondence and
communications between
PCC and the
Illinois State Water
Survey regarding Permit
#34.
Request
No.
9:
All documents that contain
information
regarding correspondence and
communications between
PCC and
0MM or its predecessor agencies
regarding coal
mining
refuse
handling
and disposal
at the
Mine.
Discovery requests are
not legitimate
and justified merely because
they are similar to
requests previously
propounded by the opposing
party.
Further,
at this stage in
the litigation,
such
requests will result in
one party producing
documents provided by the other party as
a
response to
the original party’s requests for production.
It becomes nothing
less that a vicious
circle of producing the same documents.
Such
requests
clearly constitute
harassment and
entail unnecessary expense.
As stated
in Complainant’s
Motion for Protection
Order,
one
reason for a
protective
order
is,
as
provided
for
pursuant to
Section
101.616(d) of the
Board’s procedural
rules,
to
expedite
resolution of the proceeding.
A great
deal of written discovery had
already
been
completed as
of May 27, 2003, the date the Respondent’s
third
through seventh
requests were
received.
There had
already
been an order issued
by the Hearing
Officer setting
a discovery
schedule and
noting that the
litigation was to be expedited
given that the case
had
been
filed
in
1999.
Hearing
Officer Orders of April
3,
2003
and April
28, 2003.
Even
with the Respondent’s
withdrawal of the
newly propounded four sets of interrogatories,
the newly propounded
requests
for production are numerous, duplicative and
expansive
in
nature,
and,
as such,
are an
obstacle
to the expedition of this litigation.
II.
Respondent’s
Claim that the Complainant’s
Motion
is Moot
as to
PCC’s
Third Through Sixth
Sets of Interrogatories.
The Complainant’s
motion
is
not moot with
regard to
interrogatories.
Given
that the
6
Respondent has expressed a desire to “preserve
its right” to direct further interrogatories to the
State,
and
specifically states on
page 2 of its withdrawal that
it will,
in the near future,
seek
leave of the Board to direct
additional interrogatories to the State,
the question
remains
ripe as
to
(1) whether or not Respondent has the right to
direct further interrogatories to
the State,
and
if so,
on what basis and
under what conditions,
and
(2) in what manner it is to petition for leave
to propound any additional interrogatories.
With this reply,
Complainant submits
a proposed
order for the Hearing Officer’s
consideration
and signature.
Ill.
Respondent’s Claim that the Complainant has No
Basis for Its Obiection to the Fourth
Through Seventh Sets of Requests for Production.
With the withdrawal of its third
through sixth sets of interrogatories,
Respondent’s
arguments
now solely focus
on its
newly propounded sets of requests for production and
divides its argument into four segments.
First, PCC relies
on the “instruction” included with its requests.
This instruction,
provided with
no
basis
in law,
indicates that FCC’s
intention
is
not to seek
documents
that have
previously been
provided.
This begs
the question, then why has
FCC devoted so many new
requests
to
asking for documents
that have
already been
produced.
With a little
bit of effort on
its part,
rather than
shifting
the burden
to the Complainant,
it should
have
reviewed the
documents
already in
its
possession
and
narrowed
its request instead of indicating what
its
“intention”
is.
Then further down in
the “instruction,” Respondent states
that “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.”
There
is
no
reason to
even include
this “instruction”
if it did not already fully realize these
additional
requests were improper, unduly
burdensome, and
something that
could
be viewed as
harassment and
the cause of undue
expense.
7
The second segment of its response relies
on
Mr.
Davis’ expressed concern that the
witness disclosures
recently submitted
by
Ms. McBride to the Respondent are
likely responsive
to a number of the new requests.
The timing
of the new requests
is curious.
Why did
Respondent wait to
serve the
new requests
until
after the disclosures were due?
The new
requests were sent on
the date the disclosures
were due.
Requests contained within the fourth
set of requests
specifically ask
for documents associated with
the identification
and
disclosure
of witnesses.
The same was
true regarding individual interrogatories contained within the third
set of interrogatories.
It would
make
sense that the Respondent would
wait to see the content
of the disclosures
before propounded additional
discovery.
But rather,
Respondent submits
numerous,
duplicative,
expansive
requests and
repeatedly attempts
to shift the burden of
justifying
the requests to the
Complainant.
Respondent’s third
segment of this claim again concerns Rule 201(k).
Respondent
states
that no discovery dispute exists to which the rule
might be applied.
Attempts
have
been
made
to discuss the disputed requests,
but the State’s reasonable attempts
to
resolve these
differences
have failed.
Respondent again attempts
to shift the
burden
to justify its discovery
requests from
itself to
the Complainant.
It characterizes the number of
duplicative requests
within the newly propounded requests,
both as
compared
to the requests contained
within the
new sets and
also as compared to
previously propounded
requests
as “few.”
Complainant
contends this
is
a gross
mischaracterization.
Further,
Respondent characterizes
the Third Amended
Complaint as
“substantially
modified”
from the
Complainant’s original
complaint.
Complainant filed for
leave to amend
its
original complaint in
May
of 2000.
The proposed amended
complaint was
filed
at the same
time as
the
motion for leave to
amend.
The complaint was
originally amended
on
the
Complainant’s own
motion
and voluntarily based
on
information
that
had
become available
in
the course of discovery.
The complaint was
not amended
again
until after the
Board’s ruling on
8
the Respondent’s motion
to dismiss.
The second
amended
complaint was filed
in July of 2002.
Complainant contends that the changes
made in the complaint, particularly since May
of 2000,
have
not been substantial and
believes
the Respondent’s
statement to the contrary to
be a
mischaracterization.
Respondent’s fourth segment consists of its statement that the Complainant has
made
no effort to demonstrate that responding
to
Respondent’s newly propounded requests would
cause the
State
unreasonable expense, or that
they constitute
harassment,
or that a
protective
order is justified on the basis of the need to
expedite resolution
of this case.
To the contrary,
Complainant has
not only stated such, but the best evidence with
regard to each
basis are the
requests themselves,
particularly compared
to the previously propounded requests.
The
requests have been
provided
and
incorporated
as exhibits to
the motion.
The best argument to
be
made in
support of the contention
that the requests
constitute
harassment,
undue expense
and delay,
is to read
each
and
every individual request
and
compare
it
to previously
propounded
requests,
in the context that the Complainant has
met and
complied
with
all of the
previously propounded
requests.
lv.
Respondent’s
Claim that the Requests Seek Information and
Documents That Are
Subiect to
Discovery.
Respondent sets
forth
“five primary issues”
in this case that are
purportedly addressed
by
the
PCC
Production
Requests.
However,
Respondent simply reformulates many of
its
stricken
affirmative defenses,
and also
places emphasis on
certain questions that may,
in
actuality,
be
nothing more than smoke screens.
The “five primary issues” are not the only basis for the requests,
nor do
they generally
constitute
the only information sought to be elicited
by these requests.
Respondent’s statement
that “each
of
the FCC 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
9
factual topic, or constituting basic “loose ends”
mailers,”
~5t
a mischaracterization with
regard to
the “primary issues” reference,
but a complete truth with regard to
the reference
to “loose ends
mailers”.
Respondent’s fourth through seventh sets
of production
requests are
a fishing
expedition requiring
a huge expenditure
of resources and time,
that,
at this stage of the
litigation,
wherein
a large
amount of written
discovery has
already taken
place,
can
be
considered nothing other than
harassment.
Another factor that might
be at work with
this newly propounded set of requests,
is the
fact that Mr.
Blanton took over as
lead attorney for the Respondent midway through the
litigation.
Complainant even
received
a letter to this effect, attached
hereto as
Exhibit
D.
Mr.
Hedinger issued all
of the original requests.
Mr.
Blanton appears to
be pñmarily
responsible for
the newly propounded requests
in
an
effort
to completely re-conduct discovery now that
he
has
gained
control
and
responsibility for
the
matter,
and perhaps
has new or additional
theories and
defenses.
There
is no justification for the Complainant to
be
subject
to repetitive,
duplicative
and
expansive
requests that appear to be the
result of the shift of responsibility between the
two
defending
attorneys.
Respondent also attempts
to justify its
statement that its
requests are
legitimate
because they seek
information customarily subject
to
discovery by characterizing 22 of them as
request originally propounded
to the Respondent by
the Complainant.
This argument was
thoroughly discussed
above.
Secondly,
Respondent characterizes 40 requests
as
requests
seeking
documents regarding the five inorganic constituents
for which the Complainant has
cited exceedances of the water quality and groundwater standards.
Respondent states that
these 40
requests “perhaps give the impression that
responding to
these requests
involves five
times
the effort that is really the case.”
These
requests have
been
provided with
Complainant’s
motion
and the information sought by each
and the validity of these requests
can be adjudged
by
reading them.
Finally,
the Respondent specifically characterizes eight of the requests as
10
“loose ends’ catchers” that are “completely standard practice” and
solely relevant to
interrogatories.
If they are
relevant to interrogatories,
they should
be withdrawn,
as
were all tha
new sets
of interrogatories.
If they are
relevant to the
old
interrogatories, they are duplicative,
because the same
requests were
propounded associated with
formerly propounded
interrogatories.
Complainant has
explicitly acknowledged
its obligation
to
supplement
its
previous
responses when additional
information comes
into
its
possession,
WHEREFORE, for the reasons and
grounds stated above, Complainant respectfully
requests that its Motion
for Protective Order be
granted.
Respectfully submitted,
PEOPLE OF THE STATE
OF ILLINOIS,
LISA MADIGAN
Attorney General
,State of Illinois
MATTHEW J.
DUNN, Chief
Environmental Enforcement Division
BY:__________________
~A~NE E.
MCBRIDE
“~
Environmental Bureau
Assistant Attorney General
500
South
Second
Street
Springfield,
Illinois
62706
Dated:
June
19, 2003
11
IV, LUVJ
~:dAM
SS?M
iv.
~
LAW P~M
-
W.C. BLAXrO~1
D~ZCl’~
(816)
98$4151
WELL
PEPER
2300
MARCSTR~1’3U1Th
1000 KA2~8M
CiTY~
i.(O 6*ioS
P.O. BOX 4a977?
KASSMCit
MO 64L4i4777
TEL.~
(816)
gOg4ooo
Pat
(816? 913-
SQSQ
WEBSfl~
~NaSfl.00m
DacrPAx(al6)98fl~
K-MAILi
,kl.ntofltla*mllflfld.rz.com
VIA FACStMILE
June 10, 2003
Ms. Jane B. McBride
Environmental Bureau
Assistant
Attorney General
500
S. Second St
Springfield, IL
62706
Re:
People oftheState offlhlnois v. Peabody Coal Company
PCB Case No. 99-134
OurFile No, 2597-3
Dear lane:
Attached for the use ofthe
State representatives who will
this afternoon is
a document that identifies
the
issues
presented
discovery requests
in
dispute
are
directed,
identifies which
of
withdraws at this
time in light ofthe Board’s recent ruling on the
affirmative
defenses,
and
provides
some
additional
comments
requests.
Best regards
-
be participating in our meeting
in this case to
which the PCC
those
discovery
requests
PCC
State’s motion to
sthhce PCC’s
as
to
some
of the
discovery
WCBIkmy
Attach.
Vcz~t
truly yours,
W.C. Blanton
a
cc:
Stephen Hedinger (w/attach.)
(via
facsbnile)
—
David best (w/attack)
(via facsimile)
~C-tO9
1654-I
Exhibit
C
XANSAS
CITY,
MISSOURI
•
St.
LOUIS,
liISSOUttI
•
OVIRLAND
PARK,
LSNSA!
•
OMAHA.
t~ERP..ASLk
SPRINGFIELD,
MISSOURi
-
ZOWARPSVILLS,
ILLINOLS
-
WASHINGTON,
D.C.
•
LO1DON, UNITED
KINGDOM
AVPILIATtS
LIIDS
,
M~NCR1~TZI
•
MflICO
CITY
•
MONYRIAL
‘TORONTO
-
VaNCOUVER
JUN. l~,
I~QJ
U;49AM
BSFM
~V.
VU’P
ISSUES ADDRESSED By DISCOVERY REQUESTS
Discovery Requests
Issues Address~d
Third Set ofIn~terrogator1es
I
StandS
2—4
Standard
5
Standard
6
Basic
7
—
13
Whether Counts fl and
Ill
have been brought by the AG on his/her own
behalf, as alleged by the State
Founh
Set ofProduction Requests
1—2
Standard
3
—4
Impact on the aquifer
5
—
12
Whether
Counts
II and
In
have
been brought by
the AG
on
his/herown
behalf, as alleged by the State
13—15
Basic
16—17
Standard
18
Self-evident
19
Standard
20
SeI&evident (Exhibit to be provided)
21
Self-evident (Exhibit to be provided)
Fourth Set of Xnterrogatorles
1
Standard
2
-
S
Seriousness of
alleged
violations
9—14
Impactonthe aquifer
15 -20
Whether “water pollution” or
“water
pollution hazard” has occurred;
Seriousness ofafleged vi&ations; appropriate penalty
21
-
29
Whether “water pollution” or “waterpollution hazard” has occurred;
seriousness ofalleged violations;
appropriate penalty
30
Seriousness ofalieged
violations
Fifth
Set of Production
Requests
I
-
2
Standard
3
W’hether “water pollution” or “waterpollution hazard” has occurred;
seriousness ofalleged violations
4- 8
Impact on the aquifer
KC-LO~S223.~
2597/3
JUN.
IV.
2Q03
~:49AM
i~v.vu’t
Whether “water pollution” or “water pollution
hazard”
has
occurred;
seriousness ofalleged violations
9
-
10
Withdrawn for now
11
-
12
Whether “waterpollution” or “water pollution hazard” has occurred;
seriousness of alleged violations
13
Impact on the aquifer
14
-
18
Whether “waterpollution” or “water pollution hazard” has occurred;
seriousness ofalleged violations
19
-
20
Whether “water pollution” or “water pollution hazard” has occurred;
seriousness ofalleged violations
21
-
41
Whether “water pollution” or “water pollution hazard” has occurred;
seriousness of alleged 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 ofalleged violations;
appropriate penalty
56
(both)
Whether “water pollution” or “water pollution hazard” has occurred;
Seriousness of alleged violations
57
Whether “waterpollution” or “water pollution hazard” has occurred;
Seriousness ofalleged violations;
appropriate penalty
Fifth Set ofInterrogatories
1
Standard
2-
11
Appropriate penalty
12-13
Appropriate penalty
14- 15
Appropriate penalty
16- 17
Appropriate penalty; will limit to info regarding OMZs
18
Whether “water pollution” or “waterpollution hazard” has occurred;
Seriousness of alleged violations;
appropriate penalty
Sixth Set ofProduction Requests
I
-
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
KC.EO9~229-I
2
2597/3
JUN.
IV.
2UVi
b:~UAM
iai.
yu~
r.
s
26
Whether “water pollution” or “water pollution hazard” has occurred;
senQusness ofalleged violations;
appropriate penalty
Sixth Set ofInterrogatoi-ies
1
Standard
2
-
15
Same (and all) issues as to which the information sought has been
deemed relevant by the State
by
its corresponding interrogatories
Seventh Set ofProduction Requests
1
-2
Standard
2
-
24
Same (and all) issues as to which the informationsought has been
deemed relevant by the State
by its corresponding production requests;
no intent to seek documents already produced
KCdO9SZZI-l
2397/3
HEDINGER
LAW
oFFIcE
Stephen
F. Hedinger
1225
SOUTH SIXTH STREET
SPRINGFIELD,
ILLINOIS 62703
TEL
(217) 523-2753
FAX
(217) 523-4366
August 22, 2002
VIA
U.S.MAIL
Jane
McBride
Attorney Generals Office
500 South Second Street
Springfield,
IL
62706
RE:
People
v.
Peabody Coal Company, PCB 99-134
Dear Jane:
This letter is in confirmation of our telephone conversations of Tuesday of this week,
August 20.
Effective immediately, the “point person” for the above-referenced litigation
will be
W.C. Blanton.
His address and
phone number are as follows:
Blackwell Sanders Peper Martin
LLP, Two Pershing Square, 2300 Main Street, Suite 1000,
Kansas City, Missouri
64108.
Direct:
(816) 983-8151.
Fax:
(816) 983-8080.
I will continue to
be
actively involved in
this case.
However, Mr. Blanton will be the
lead counsel for purposes of trial preparation,
and he should be
the primary point of reference for
all litigation
activities,
inquiries and
discussions.
Contact me, or Mr. Blanton, at your earliest convenience if you have
any
questions
concerning this.
Very truly yours,
Ste$~én
F. Hedinger
a
SFH/ew
Exhibit
D
cc:
W.C. Blanton
David Joest
Steve Ewart, IEPA, Division of Legal Counsel
Steve Langhoff, Hearing Officer
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
CLERK’S OFF~CF
PEOPLE OF THE STATE OF ILLINOIS,
)
JUN
2
4
2003
STATE
OF ILLINOIS
Complainant,
)
Pollution
Control Board
v.
)
PCB
NO.
99-1 34
(Enforcement)
PEABODY COAL COMPANY, a Delaware
corporation,
Respondent.
)
PROTECTIVE ORDER
Complainant’s
Motion for Protective Order is granted over objections by Respondent.
Respondent’s Withdrawal of Interrogatories is accepted and
the third
through sixth sets of
interrogatories are stricken.
Section
101.620(a) explicitly
limits the number of interrogatories:
“Unless ordered
otherwise by
the hearing officer,
a
party may serve a maximum of 30
written
interrogatories,
including
subparts,
on any other party
Regardless of any
prior verbal
agreement
between the
parties,
the Hearing Officer finds that Respondent failed
to seek
leave
to
exceed the maximum number of interrogatories.
The Hearing
Officer finds that the
production
requests
consisting of a fourth
set
of 21
individual requests
for production,
a fifth
set
of 57
individual
requests for production,
a
sixth
set
of 26
individual
requests, and
a seventh set
of 24
individual
requests,
must
be denied as
substantially
duplicative of prior requests.
Pursuant to
Section
101 .616(d),
and the findings by the Hearing
Officer,
the following
conditions are imposed
to
limit and
regulate
discovery to
prevent unreasonable expense, or
harassment, and
to
expedite resolution
of the proceeding:
Any party must
in
the future seek leave of the Hearing
Officer and justify the
need for
additional
interrogatories or document production
requests
in this matter prior to serving
such
interrogatories or document production
requests
upon the other party.
The burden
shall be
on
the proponent of the additional discovery to
establish
through a
motion or brief that any
additional request is necessary to avoid material prejudice~
the other party shall respond within
14 days;
the proponent of the additional discovery may not seek to
reply;
and
the
ruling of the
Hearing
Officer will
be
subject
to
review by the
Board
if an appeal is timely sought.
IT IS
SO ORDERED.
2
STATE OF ILLINOIS
)
COUNTYOFSANGAMON
AFFIDAVIT
I, THOMAS
DAVIS, after being duly sworn
and
upon oath, state as
follows:
1.
I
am employed
by
the Illinois Attorney General’s Office, as an Assistant Attorney
General.
Since September 1,
1991,
I
have served
as the Bureau
Chief of the Environmental
Bureau/Springfield.
Assistant Attorney General
Jane McBride is assigned
to the matter of
People
v.
Peabody Coal Company,
PCB
99-1 34, as
lead counsel
of and
attorney of record for
the Complainant in
this matter.
As the supervising attorney,
and duly authorized by the Attorney
General,
I have
executed all
of the complaints filed before
the
Board
and have
participated as
necessary in discussion
and conferences.
2.
I
am executing
this Affidavit to
accompany Complainant’s Reply to Respondent’s
Brief in Opposition to
the State’s
Motion for Protective Order.
3.
The assertions set forth
in
Complainant’s Reply to
Respondent’s
Brief in
Opposition to the State’s
Motion
for Protective Order
are true,
correct and accurate,
to the
best
of Affiant’s knowledge and
belief.
Further, Affiant sayeth
not.
THOMAS
DAVIS
Subscribed and sworn
to before
me
this
fl4-Vn
dayof
3une
,2003.
&Oftn
iQ
(?~
E~AUflAâC
NOTARY PUBLIC
OFFICIAL
SEAL
JAMIE
L.
EDWARDS
NOTARY
PUBLIC.
STATE OF
ILLINOIS
M~
CoMMISSION
EXPIRES 3.22~2QQ6
STATE OF ILLINOIS
)
COUNTY
OF SANGAMON
AFFIDAVIT
I, JANE E. MCBRIDE,
after being duly sworn
and
upon oath, state as follows:
1.
I am the AssistantAttorney General assigned to the matter of People
v.
Peabody
Coal Company,
PCB 99-134, and counsel of record for the Complainant in this matter.
2.
I am executing this Affidavit toaccompany Complainant’s Reply to Respondent’s
Brief in Opposition to the State’s Motion for Protective Order.
3.
The assertions set forth in Complainant’s Reply to Respondent’s Brief in
Opposition to the State’s Motion for Protective Orderare true, correct and accurate, to the best
of Affiant’s knowledge and belief.
Further, Affiant sayeth not.
~
JANE E.
MCBRIDE
Subscribed and sworn to before me
this
1944-i
day of
June~
2003.
c~1nn~cLQ
(~
&Oumr~c
NOTARY ~UBLIC
OFFICIAL
SEAL
JAMIE L. EDWARDS
NOTARY PUBLIC. STATE
OF
ILLINOIS
MV
COMMISSION
EXPIRES 3~22~2OO6