BEFORE THE ILLINOIS POLLUTION CONTROLBOA~~
OFr~C~
PEOPLE OF
THE
STATE OF ILLINOIS,
)
iUL ~~2005
Complainant,
)
8oa~
v.
)
PCB97-179
)
(Enforcement-
Air)
MGP INGREDIENTS OF
)
ILLINOIS,
iNC.,
)
)
Respondent.
)
NOTICE OF FILING
To:
Jane E. McBride
Assistant Attorney General
500 South Second Street
Springfield, IL
62706
DorothyM. Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph, Suite
11-500
Chicago, IL
60601
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021
N. Grand Avenue East—P. 0. Box
19274
Springfield, IL 62794-9274
PLEASE TAKE NOTICE that I have today filed the original and four copies with the
Office of the Clerk of the Pollution Control Board Respondent MGP Ingredients of Illinois, Inc.’s
First Set of Interrogatories, Requests for Production ofDocuments to Complainant and Request
for Admissions, copies ofwhich are herewith served upon you.
Respectfully submitted,
M.FI
190 Carondelet Plaza,
St. Louis, MO 63105
(314) 480-1524
600
2081217.01
THIS FILING IS
SUBMITTED
ON RECYCLED PAPER
CERTIFICATE OF SERVICE
I hereby certify that I did
on the 8th day ofJuly, 2005, send a true and accurate copy of
RESPONDENT’S FIRST SET OF INTERROGATORIES TO COMPLAINANT,
RESPONDENT’
S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO
COMPLAINANT and RESPONDENT’S
FIRST REQUEST FOR ADMISSIONS OF FACTS
TO COMPLAINANT by first class mail, postage prepaid to Complainant’s attorney and Hearing
Officer:
Jane E.
McBride
Assistant Attorney General
500 South
Second Street
Springfield, IL 62706
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 N. Grand Avenue East
P. 0. Box 19274
Springfield, IL 62794-9274
and the originals and four copies of the foregoing instrument by firstclass mail, postage prepaid
to:
Dorothy M. Gunn, Clerk
~
,,~
Chicago, IL 60601
Attorney
2081217.01
2
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL
112005
PEOPLE OF
THE STATE OF ILLINOIS
)
STATE
OF ILLINOIS
)
Pollution Control Board
Complainant,
)
)
v.
)
PCB97-179
)
(Enforcement- Air)
MGP INGREDIENTS OF ILLiNOIS, INC.,
)
)
)
Respondent.
)
RESPONDENT’S FIRST SET
OF
INTERROGATORIESTO COMPLAINANT
COMES NOW Respondent MGP Ingredients of Illinois, Inc., (“MGP”), by
its attorneys,
Husch & Eppenberger, LLC pursuant to Section
101.616 ofthe
Board’s Procedural Regulations,
Hearing Officer Order dated April 21, 2005
and Illinois Supreme Court Rule 213, requests that
Complainant, People of the State of Illinois, answer in writing, under oath, the following
interrogatories.
I.
iNSTRUCTIONS FOR
INTERROGATORIES
1.
Complainant is required,
in answering these interrogatories to furnish
all
information available to Complainantor
its employees, agents, contractors, experts, or
consultants, or which is ascertainable by reasonable inquiry whether or not the requested
information might be available from
another entity.
2.
If an interrogatory has subparts, Complainant is required to answer each part
separately and in full.
3.
If Complainantcannot answer an interrogatory in full, they are required to
answer all
parts of the interrogatory to the extent possible and specify the reason for
its inability
to provide additional
information.
2095345.01
4.
As to each interrogatory, or portion thereof, identify in the answer every oral
communication, document or writing which relates to the interrogatory or response, whether or
not
such identification is specifically requested by the interrogatory.
5.
In answering each interrogatory,
identify each document, person, communication
or meeting, which relates to, corroborates, or
in any way forms the basis forthe answer given.
6.
Pursuant to Illinois
Supreme Court Rule 213(3), Complainant is requested to
serve upon Respondent corrected, supplemented or augmented answers hereto, documents or
other forms of information from whatever source, which
arguably tends to
show that
Complainant’s prior answers are, might be, were or might have been in a sense incorrect,
incomplete, potentially misleading or less than fully responsive or truthful.
7.
Complainant shall supplement its answers and responses
as new information and
documents become available.
8.
If dates are requested, the exact date should be given, if possible.
However, if
the exact date cannot be determined dueto absence or inadequacy of records, the best estimate
should
be given to the interrogatory and labeled as such.
9.
In construing these interrogatories:
a.
the singular shall
include the plural
and the plural shall include the singular; and
b.
a masculine
or feminine
pronoun shall not exclude the other gender.
10.
If you encounter any ambiguity in construing any interrogatory or anydefinition
or instruction pertaining to any interrogatory,
set forth the matter deemed “ambiguous” and the
construction chosen or used in responding to the interrogatory.
11.
In
producing documents in response to an
interrogatory (See Illinois Supreme
Court Rule 2 13(e)), you are requested to furnish all documents or things in your actual or
constructive possession, custody, control, or known or available to you, regardless of whether
such documents or things are possessed
directly by you or by your attorneys, agents, employees,
representatives or investigators.
2095345.01
2
12.
This discovery is deemed continuing, necessitating supplemental answers by
Complainant, or anyone acting on its behalf, when or ifthey obtain additional information, which
supplements
or alters the answers now provided.
II.
CLAIMS
OF
PRIVILEGE
I.
With respect to any interrogatory which Complainant refuses to answer on a
claim of privilege, provide a statement signed by
an attorney representing Complainant,
setting
forth each such assertion of privilege.
The statement should include:
a.
the name andjob
title ofevery person involved
in the conversation or
communication;
b.
the nature ofthe information
disclosed;
c.
all facts relied upon
in support ofthe claim of privilege;
d.
all documents related to the claim ofprivilege;
e.
all events, transactions or occurrences related to the claim of privilege; and
f.
the statute, rule or decision which is claimed to give rise to the privilege or the
reason for its unavailability.
2.
Ifthe objection relates to only part of an interrogatory, the balance ofthe
interrogatory should be answered in full.
3.
If you claim the attorney-client privilege
or
any other privilege is applicable to
any document, with respect to that document:
a.
state the date of the document;
b.
identify each and every author of the document;
c.
identify each
and every other person who prepared or participated in the
preparation of the document;
d.
identify each and every person who received
the document;
e.
state the present location ofthe document and all
copies thereof;
2095345.01
3
f.
identify each and every person having custody or controi of the document and all
copies thereof; and
g.
provide sufficient further information concerning the document to explain
the
claim or privilege and to permit adjudication ofthe property ofthat claim.
III.
DEFINITIONS
1.
“Complainant” shall mean PEOPLE OF THE STATE OF ILLINOIS and the
ATTORNEY GENERAL OF THE STATE OF ILLINOIS, and any of Complainant’s employees,
agents, representatives, successors or assigns, or any other person acting or believed
by
Complainant to have acted on their behalf.
2.
“Document” shall be construed in its customary broad senseand shall include,
but
is not limited to, the original
and non-identical copy, whether different from the original
because of notes
made on said copy or otherwise, or
any agreement, bank record or statement;
book of account, including any ledger, sub-ledger, journal
or sub-journal; brochure; calendar;
chart; check; circular; communication (intra- or inter-company or governmental entity or agency
or agencies); contract; copy; correspondence; diary;
draftof any document;
graph; index;
instruction;
instruction manual
or sheet; invoice; job requisition;
letter; license; manifest;
memorandum; minutes; newspaper or other clipping;
note; notebook; opinion; pamphlet; paper;
periodical or other publication; photograph; print; receipt; record; recording report; statement;
study; summary including any memorandum, minutes, note, record
or summary of any (a)
telephone, videophone or intercom conversation
or message; (b) personal conversation or
interview; or (c) meeting or conference; telegram; telephone log; travel or expense record;
voucher; worksheet or working paper; writing; any other handwritten, printed, reproduced,
recorded, typewritten, or otherwise produced graphic material
from which the information
inquired of may be obtained, or any other documentary material of any nature, including
electronic mail, in the possession, custody
or control of Complainant.
2095345.01
4
3.
“Communication” shall mean, without limitation, any and all forms of
transferring information, including discussions, conversations, meetings, conferences, interviews,
negotiations, agreements, understandings,
inquiries, correspondence, documents, or other
transfers of information whether written
or oral or by any other means, and
includes any
document which abstracts, digests, transcribes or records any communication.
4.
“Facility” and/or “Site” shall mean the property located at South Front Street and
Distillery
in Pekin, Tazewell County, Illinois, as reference in paragraph 5, Count I of the
Complaint.
5.
“Person” shall include, but is not limited to, any natural person; business or
corporation, whether for profit or not; firm, partnership,
or other non-corporate business
organization; charitable, religious, education, governmental, or other non-profit institution,
foundation, body, or other organization;
or employee, agent or representative of any of the
foregoing.
6.
“Describe” when used with respect to a communication, means to provide the
following information:
a.
the date ofthe communication;
b.
the type of communication (telephone, electronic mail, facsimile, letter, etc.);
c.
the identity ofall individuals involved in the communication;
d.
the identity of all individuals who witnessed the communication; and
e.
the subject matter of the communication.
f.
a description of any documents generated relating to these communications.
7.
“Identify” when used with respect to a person, means that you are to state the full
name, present residence and business addresses, present residence and business telephone
numbers, present and last-known position and business of such person and, ifdifferent, the
business and position of the person at the time to which the interrogatory has reference.
8.
“Identify” when used with respect to a document, means:
2095345.01
5
a.
to specifythe nature of the document (For example a letter or memorandum);
b.
to state the date, ifany, appearing on the document or, if none, the date on which
the document was prepared and/or received;
and
c.
to describethe substance of each document for which no privilege is claimed, or
to specify the nature and extent of any claimed privilege.
d.
If the document
is not
in your possession,
identify the person
who has actual or
constructive possession or control ofthe document.
9.
“Or” shall mean and/or wherever appropriate.
10.
“Related to” or “relating to” or “in relation to” shall mean anything which
directly or
indirectly, concerns, consists of, pertains to, reflects, evidences, describes,
sets forth,
constitutes, contains, shows, underlies, supports, refers to in
anyway,
is or was
used
in the
preparation of, is appended to, or tends to prove or disprove.
11.
“Relied upon” shall mean being or having been depended upon or referred to or
being or having been arguably appropriate for such reliance.
12.
“Constructive Possession” means documents not in actual
possession, but to
which you have power to inspect, a rightto control, review or otherwise access.
13.
“Knowledge” means
first-hand information
and/or information derived from any
other source, including hearsay.
14.
“IEPA” means the Illinois Environmental Protection Agency.
15.
“Board” shall mean the Illinois Pollution Control Board.
16.
“Current” or “Present” means
the filing date of these Interrogatories.
17.
All terms not specifically defined herein shall have their logical ordinary
meaning, unless such terms are defined in the Act or the regulations promulgated thereunder, in
which case the appropriate or regulatory definitions will
apply.
IV.
INTERROGATORIES
1.
Please identify:
2095345.01
6
a.
the individual(s) answering these interrogatories on behalfof the Complainant,
including his
or her relationship to Complainant, and how long he or she has
been associated with Complainant.
b.
Each person who provided information or who otherwise consulted, participated
or assisted in
connection with providing answers to these interrogatories, the
nature of any such consultation or assistance, whether the information was based
on personal knowledge, and if not
on the basis of personal knowledge, on what
basis it was provided.
c.
For each person identified
in the proceeding section
1(b), specify the particular
interrogatories
to which each such person contributed.
ANSWER:
2.
Pursuant to Illinois Supreme
Court Rule 213(f), with respect to any hearing
witnesses, please state the following:
a.
the name, address and employer of each witness;
b.
a summary ofthe relevant facts within the knowledge of, or which said witnesses
will testify to; and
c.
a listing of any documents or photographs,
which any such witness has relied
upon, will use or which may be introduced into evidence in connection with the
testimony of said witness.
ANSWER:
3.
Furnish the identity and addresses of all expert witnesses who will testify at hearing
for Complainant, together with the subject matter on which each expert witness is expected to
testify; the conclusions and opinions of each expert witness and the basis therefore; and the
qualifications of each expert witness and a copy ofall reports ofsuch witnesses.
2095345.01
7
ANSWER:
4.
With respect to any witness(es) interviewed by Complainantwho Complainant does
not intend to call to testify at hearing, state the name and address of any such witness, state
whether a transcript of any interview with said witness was prepared, or a memorandum
prepared
in connection with any such interview, and provide a summary of the facts and opinions relevant
to this proceeding which were secured from said witness.
ANSWER:
5.
Pursuant to Illinois Supreme
Court Rule 2 13(g), identify any and all opinion
witnesses that Complainant has interviewed and/or expects to call at hearing.
Specify:
a.
The subject matter on which the opinion witness
is expected to testify as well as
the conclusions, opinion and/or
expected testimony of any such witness;
b.
The qualifications, including, but not limited to, the opinion witness’
educational
background, practical experience
in the area he or she is expected to testify in,
any articles and papers he or shehas written, any and all seminars and post-
graduatetraining he has received, his experience, ifany, as a teacher or lecturer
and his or her professional appointments and associations;
c.
The identity ofeach document examined, considered,
or relied
upon by
him
or
her to form his or her opinions;
d.
All proceedings
in which each opinion witness has previously testified as
an
opinion witness; and
e.
Any and all reports of the opinion witness.
ANSWER:
2095345.01
8
6.
Furnish the identity and addresses ofall persons that communicated with
Complainant regarding the facts alleged in Complainant’s Complaint; and identify
all persons
known by you to have knowledge ofthe facts alleged in the Complaint or
in the Answers to these
Interrogatories.
ANSWER:
7.
Identify all dates on which the owner or operator ofthe MGP facility was required to
submit an application or request for, obtain or have in its possession a permit, approval or other
governmental
authorization to construct or install any structure, process, equipment, operation or
activity at the MGP facility and for each such date, identify
all such required permits, approvals,
or other governmental authorizations,
for all relevant time periods.
ANSWER:
8.
With respect to the allegations contained in Paragraph 20 ofthe Complaint that the
MGP facility
is a “major stationary source,” please identify
all equipment, processes, operations
and fugitive emissions, which alone or in combination, emitted
or had the potential to emit more
than 25 tons of particulate matter
per year for the time period after January
1, 1989 to the present
time.
For each piece ofequipment, process or operation identified, provide the following:
a.
All
information, including emission factors,
emission tests, and any calculations
or formulas, relied upon
in determining the actual and potential emissions of
particulate matter for each piece of equipment, each process, or each operation;
b.
All
rules, regulations, policies
or guidance relied upon in determining the
potential to emit;
c.
All persons in the employ or retained by Complainantwho determined or assisted
in the determination ofthe emissions or potential to emit for the equipment,
process or operation;
2095345.01
9
d.
The maximum capacity of each piece of equipment, process or operation to emit
particulate matter under its physical and operational design;
e.
Any physical or operational limitations on the maximum capacity to emit
particulate matter, including production limitations and air pollution control
equipment, for each piece of equipment.
f.
For all fugitive emissions identified, provide the following:
i.
All information, including emission factors, tests, calculations, or
guidance relied
upon in determining the actual and potential emissions of
particulate matter for each fugitive source;
ii.
All persons in the employ or retained by Complainant who determined or
assisted
in the determination ofthe emissions or potential to emit from
fugitive particulate matter sources.
ANSWER:
9.
With respect to the allegations contained in the Complaint and the
subject matter
thereof, please state or identify the following:
a.
Identify all information, including emission
factors, emission tests, and any
calculations or formulas, relied upon
in determining that a “major modification”
occurred at any time at the MGP facility;
b.
Identify the date such “major modification” occurred at the MGP facility, and as
of that date, what Complainant maintains would have been the “best available
control technology” applicable to such “major modification;”
c.
Identify each person on behalf of Complainant with factual information
concerning the “major modification”
or known to have been involved
in the
assessment and/or
determination that a “major modification” occurred at any
time at the MGP facility.
2095345.01
10
d.
Any physical or operational
limitation on the maximum capacityto emit
particulate matter from
such “major modification.”
ANSWER:
10.
Describe any and all communications between IEPA and August Mack
Environmental, Inc., (“August Mack”) and/or any other consultants relating to air permit or air
emission
issues at MGP.
Dates of relevant phone conversations include, but are not limited to,
8/13/96, 8/16/96, 8/28/96, 9/4/96, 9/16/96, 9/17/96, 9/20/96,
9/24/96,
10/15/96,
11/1/96,
11/14/96, 12/11/96, 1/28/97, 1/30/97, 3/19/97, 3/25/96, 3/27/97, 4/9/97, and 4/23/97.
ANSWER:
11.
Describe any and all communications between IEPA and MOP relating to air permit
or air emission
issues at MGP.
Dates ofrelevant phone conversations include,
but are not limited
to, 8/13/96, 8/16/96, 8/28/96, 9/4/96, 9/16/96, 9/17/96, 9/20/96, 9/24/96, 10/15/96,
11/1/96,
11/14/96, 12/11/96, 1/28/97, 1/30/97, 3/19/97,
3/25/96,
3/27/97, 4/9/97, and 4/23/97.
ANSWER:
12.
Describe any and all internal IEPA communications relating to airpermit or air
emission issues
at MGP.
Dates of relevant phone conversations include,
but are not limited to,
8/13/96, 8/16/96, 8/28/96, 9/4/96, 9/16/96, 9/17/96, 9/20/96, 9/24/96,
10/15/96,
11/1/96,
11/14/96, 12/11/96,
1/28/97,
1/30/97, 3/19/97,
3/25/96,
3/27/97,
4/9/97, and 4/23/97
ANSWER:
13.
Describe any and all communications between IEPA and the United States
Environmental Protection Agency relating to air permit or air emission issues at MGP.
Dates of
relevant phone conversations include, but
are not limited to, 8/13/96, 8/16/96, 8/28/96, 9/4/96,
2095345.01
11
9/16/96, 9/17/96, 9/20/96, 9/24/96,
10/15/96, 11/1/96,
11/14/96, 12/11/96, 1/28/97, 1/30/97,
3/19/97, 3/25/96, 3/27/97, 4/9/97, and 4/23/97
ANSWER:
14.
Describe any and all communications between IEPA andAugust Mack, any other
consultants, MOP and/or the United States Environmental Protection Agency (“USEPA”) and
internal IEPA communication relating to air permit or air emission issues at MGP from
1992 to
the present.
ANSWER:
15.
Describe any and all communications between IEPA and August Mack, any other
consultants, MOP and/or the USEPA and internal IEPA communication relating to air permit
modifications or air permit application modifications at MOP.
ANSWER:
16.
Itemize the penalties which Complainant seeks to recover for each violation asserted
in the Complaint; identify the manner or means by which Complainant determined the penalty
amounts to be sought (including but not limited to, the manner in which any statutory criteria,
policy or guidance was employed in determining the penalty amounts); identify the relevant facts
considered in making the penalty determinations and in employing such statutory criteria, policy
or guidance; and identify and explain the manner or method employed in
attributing any
economic benefit accruing to Respondentby reason of the violations asserted.
ANSWER:
2095345.01
12
17.
Identify and describe any and all internal IEPA communications, IEPA
communications with MOP and/or communications between IEPA and any third-party relating to
aBACT determination for the MOP facility since Januaryl,
1990.
ANSWER:
18.
Describe the analysis conducted and methodology used by IEPA to determine the
BACT for emissions from feed dryers at the MGP facility, including but not limited to, emission
limitations and reductions.
ANSWER:
19.
Identify and describe the technically feasible and economically reasonable
technology available to control
the particulate matter emissions at the MOP facility
as described
in the Complaint.
ANSWER:
20.
Describe any and all communications related to IEPA’s consideration of economic
and technological feasibility
as they relate to the alleged violations described in the Complaint.
ANSWER:
21.
Describe any and all communications related to IEPA’s consideration
ofpotential
energy, environmental and economic
impacts in determining the level of emission
control that the
MOP facility could achieve pursuant to 42 U.S.C.
§
7479(3).
ANSWER:
22.
Describe any and all communications related to IEPA’s use of “top down” analysis to
select the BACT forthe MOP facility.
2095345.01
13
ANSWER:
23.
Describe any and all communications relied
upon in preparation of Donald E.
Sutton’s 10/9/97 and 7/9/97 correspondences to MOP.
ANSWER:
24.
Describe any and all communicationsrelating to emission limits established for
MOP, including, but not limited to, construction permits 82110006, 93020061
and 93080045
and
emission limits in
any and all construction and/or operating permits relating to the MOP facility.
ANSWER:
25.
Describe any and all communications relating to the permitting, operation and
shutdown of the fluidized bed combustion boiler or any dryers at the MOP facility from
January
1,1987 to present.
ANSWER:
26.
Describe any and all communications among IEPA personnel and/or MGP personnel
relating to the start of construction, start ofoperations, and shutdown of boilers, dryers and other
emission sources at the MOP facility.
ANSWER:
27.
Identify any and all
data relating to air emission tests conducted
at the MGP site,
emission data associated
with the MGP facility, and/or air modeling related to the MGP facility.
ANSWER:
2095345.01
14
28.
Describe any and all communications within IEPA and/or between IEPA and MGP,
USEPA, August Mack or any thirdparty regarding particulate air emission modeling relatedto
the MOP facility.
ANSWER:
29.
Identify the “look back” period used by IEPA to determine emission limits for the
project which is the subject ofthe Complaint for the MOP facility, including but not limited to the
analysis employed and methodology used to determine the appropriate “look back” period.
ANSWER:
30.
Identify any and all documents that relate to the inspection of air emissions at the
MGP facility.
ANSWER:
31.
Identify any and all
US Clean Air Act or Illinois Environmental Protection Act
exemptions that were considered by IEPA related to particulate matter emissions at the MOP
facility and the base or bases forthe denial of such exemptions.
ANSWER:
32.
Describe any and all communications relating to the determination that the MGP
facility was a major stationary source for particulate matter in 1992.
ANSWER:
33.
Describe any and all communications relating to IEPA determinations that the MOP
facility
is a major stationary source,
a change
in the MPG facility was a major modification
or
that the MGP facility experienced a significant net emission
increase for any pollutant.
2095345.01
15
ANSWER:
34.
Describe any and all communications related to MGP construction and operating
permit emission applications, and/or proposed and issued permits.
ANSWER:
35.
Describe any and all communications relating to any PSD permitting forthe MOP
facility including,
but not limited to, air emission evaluations
and effects on
attainment and/or
nonattainment classification of the vicinity surrounding the MGP site.
ANSWER:
36.
Describe any and all communications related to IEPA’s contention that all agency
modeling of particulates at the MOP facility and its environsmust be complete before IEPA
would consider MOP’s proposal to install a regenerative thermal oxidizer.
ANSWER:
37.
Describe any and all communications related to any penalty calculations or proposed
penalties concerning a resolution of the allegations in the Complaint including,
but not limited to,
calculations, supporting documents, policies and procedures used
in the application of
calculations, any assumptions used
in the calculations and any internal- IEPA communications or
communications with USEPA related to MOP penalties
or penalty calculations.
ANSWER:
38.
Describe IEPA’s analysis of the monetary losses suffered
by MGP as applied to the
following:
a.
The penalty of $1,062,580;
2095345.01
16
b.
The BACT determination; and
c.
The determination of economic reasonable technology.
ANSWER:
39.
Describe any communications related to IEPA’s
1999 decisionto not assess an
economic benefit penalty beyond that date.
ANSWER:
40.
Identify and describe IEPA’s analysis of MGP’s good
faith efforts to control
particulate matter emissions including but not limited to, IEPA’s analysis ofMGP’s attempts to
hold the dryer manufacturer’s supplier accountable for MGP’s expensive corrective actions when
the dryer and scrubber failed to properly control particulate matter emissions.
ANSWER:
41.
Describe any and all communications related to IEPA’s denial ofa construction
permit application for a wet electrostatic precipitator in and around
1997.
ANSWER:
42.
Describe any and all communicationswith Mr. Charlie Merrill or Mr. Brian
Cahill
relating to the determination that no penalty or fines would be assessed ifMOP cooperated
in
completing the air modeling.
ANSWER:
43.
Describe how the shutdown of the MOP fluidized bed coal boiler in
1994 factored
into IEPA’s determination that MOP was a “major stationary source.”
ANSWER:
2095345.01
17
44.
Identify and describe IEPA’s analysis ofthe severity of the particulate matter
emissions, plant location and economic loss due to unemployment, as well as, the economic
impact of a shut down ofthe MOP facility.
ANSWER:
45.
Identify the date by which IEPA completed the air emission modeling necessaryto
fully analyze an air emissions construction permit application for feed dryer pollution control
equipment submitted by MOP.
ANSWER:
46.
Identify the date when IEPA communicated to MGP the completed the air emission
modeling necessary to fully analyze an air emissions construction permit application for feed
dryer pollution control equipment submitted by
MGP.
ANSWER:
Husch & Eppenberger, LLC
190 Carondelet Plaza, Suite 600
St. Louis, Missouri
63105
(314) 480-1500
2095345.01
Respectfully submitted,
H1J~
18
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL
112005
STATE OF IL
PEOPLE OF THE STATE OF ILLINOIS,
)
Pollution Controj~~
Complainant,
)
)
v.
)
PCB 97-179
)
(Enforcement-
Air)
MOP INGREDIENTS OF ILLINOIS, INC.,
)
)
Respondent.
)
RESPONDENT’S FIRST REQUEST FOR PRODUCTION
OF DOCUMENTS TO COMPLAINANT
COMES NOW Respondent MGP Ingredients of Illinois, Inc., (“MGP”),
by its attorneys,
Husch
& Eppenberger, LLC pursuant to Section
101.616 ofthe Board’s Procedural Regulations,
Hearing Officer Order dated April 21, 2005 and Illinois
Supreme Court Rule 213, requests that
Complainant, People ofthe State ofIllinois, produce,
under oath, the documents specified in the
following request.
I.
INSTRUCTIONS
1.
Complainant is required, in answering this production request to furnish
all
information available to Complainant or its employees, agents, contractors, experts, or
consultants,
or which is ascertainable by reasonable inquiry whether or not the requested
information might be available from anotherentity.
2.
If a production request has subparts, Complainant is required to answer each part
separately and in full.
3.
If Complainant cannot answer a production request in full, they are required to
answer all
parts ofthe request to the extent possible and
specify the reason for its inability to
provide additional
information.
2081327.01
4.
As to each production request, or portion thereof, identify in the answer every
oral communication, document or writing which relates to the production request or response,
whether or not such identification is specifically requested by the production request.
5.
In
answering each production request, identify each document, person,
communication or meeting, which relates to, corroborates, or
in any way forms the basis for the
answer given.
6.
Complainant shall make the requested documents available for inspection and
copying at Husch
& Eppenberger,
190 Carondelet Plaza, Suite 600, St. Louis, Missouri
63105.
7.
Pursuant to Illinois Supreme
Court Rule 2 13(3), Complainant is requested to
serve upon Respondent corrected, supplemented
or augmented answers hereto, documents or
other forms of information from whatever source, which arguably tends to show that
Complainant’s prior answers are, might be, were or might have been in a sense incorrect,
incomplete, potentially misleading or less than fully responsive or truthful.
8.
In construing this production request:
a.
the singular shall include the plural and the plural shall include the singular; and
b.
a masculine or feminine
pronoun shall not exclude the other gender.
9.
If you encounter any ambiguity in construing any production request or any
definition or instruction pertaining to any production request; set forth the matter deemed
“ambiguous” and the construction chosen or used in responding to the request.
10.
In producing documents in response to a production request (See Illinois-
Supreme Court Rule 213(e)), you are requested to furnish all documents or things in your actual
or constructive possession, custody, control, or known or available to you, regardless ofwhether
such documents or things are possessed directly by
you or by your attorneys,
agents, employees,
representatives or investigators.
2081327.01
2
II.
If any requested document is not or cannot be produced in full, produce it to the
extent possible, indicating with particularity what documents or portion of any such documents is
not or cannot be produced and reason therefore.
12.
In producing documents, you aie requested to produce the original ofeach
document requested together with all non-identical
copies and drafts ofthat document.
13.
All documents should be produced in the same order as they are kept or
maintained by you.
14.
All documents should be produced in a file, folder, envelope or other container in
which the documents are kept or maintained by you.
Iffor any reason the container cannot be
produced, please produce copies
ofall
labels or other identifying markings.
15.
Documents attached to each other should not be separated.
16.
Documents
not otherwise responsive to this request shall be produced if such
documents refer to, relate to, or explain the documents called for by this request and constitute
routing slips, transmittal memoranda or letters, comments, evaluations,-or similar documents.
17.
Each document request should be construed and responded toindependently
from each other request.
The scope of any requests should not be construed to limit or narrow the
scope of any other request.
18.
This discovery is deemed continuing, necessitating supplemental answers by
Complainant, or anyone acting on
its behalf, when or ifthey obtain additional
information, which
supplements or alters the answers now provided.
II.
CLAIMS OF
PRIVILEGE
1.
With respect to any production request, which Complainant refuses to answer on
a claim of privilege, provide a statement signed by
an attorney representing Complainant, setting
forth each such assertion of privilege.
The statement should include:
a.
the name andjob title of every person involved
in the conversation or
communication;
2081327.01
3
b.
the nature ofthe information
disclosed;
c.
all facts relied upon in support of the claim of privilege;
d.
all documents related to the claim of privilege;
e.
all events, transactions or occurrences related to the claim of privilege; and
f.
the statute, rule or decision which is claimed to give rise to the privilege or the
reason forits unavailability.
2.
If the objection relates to only part of a production request, the balance ofthe
production request should be answered in full.
3.
If you claim the attorney-client privilege or any other privilege
is applicable to
any document, with respect to that document:
a.
state the date ofthe document;
b.
identify each and every author ofthe document;
c.
identify each and every other person who prepared or participated in the
preparation ofthe document;
d.
identify each and every person who received the document;
e.
state the present location of the document and all copies
thereof;
f.
identify each and every person having custody or control of the document and all
copies thereof
and
g.
provide sufficient further information concerning the document to explain the
claim or privilege and to permit adjudication ofthe property of that claim.
Ill.
DEFINITIONS
1.
“Complainant” shall mean PEOPLE OF THE STATE OF ILLINOIS and the
ATTORNEY OENERAL OF THE STATE OF ILLINOIS, and any of Complainant’s employees,
agents, representatives, successors or assigns, or any other person acting or believed by
Complainantto have acted on their behalf.
2081327.01
4
2.
“Document” shall be construed in its customary broad senseand shall include,
but
is not limited to, the original and non-identical
copy, whether different from the original
because of notes made on said copy or otherwise, or any agreement, bank record or statement;
book of account, including any ledger, sub-ledger, journal
or sub-journal; brochure; calendar;
chart; check; circular; communication (intra- or inter-company or governmental entity or agency
or agencies);
contract; copy; correspondence; diary; draft of any document; graph;
index;
instruction;
instruction manual or sheet; invoice; job requisition; letter; license; manifest;
memorandum; minutes; newspaper or other clipping; note; notebook; opinion; pamphlet;
paper;
periodical or other publication; photograph;
print; receipt; record; recording report; statement;
study; summary including any memorandum, minutes, note, record or summary of any (a)
telephone, videophone or intercom
conversation
or message; (b) personal conversation or
interview; or (c) meeting or conference; telegram; telephone log; travel or expense record;
voucher;
worksheet or working paper; writing; any other handwritten, printed, reproduced,
recorded, typewritten, or otherwise produced graphic material from which the information
inquired of may be obtained, or any other documentary material ofany nature including
electronic mail, in the possession, custody
or control of Complainant.
3.
“Communication” shall mean, without limitation, any and all forms of
transferring
information, including discussions, conversations, meetings, conferences, interviews,
negotiations, agreements, understandings, inquiries, correspondence, documents, or other
transfers of informationwhether written or oral or by
any other means, and includes any
document which abstracts, digests, transcribes or records any communication.
4.
“Facility” and/or “Site”
shall mean the property located at South Front Street and
Distillery in Pekin, Tazewell County, Illinois, as reference in paragraph 5, Count I ofthe
Complaint.
5.
“Person”
shall include,
but
is not limited to,
any natural
person; business
or
corporation, whether for profit or not; firm, partnership, or other non-corporate business
2081327.01
5
organization; charitable, religious, education, governmental, or other non-profit institution,
foundation, body, or other organization; or employee, agent or representative of any ofthe
foregoing.
6.
“Identify” when used with respect to a person, means that you are to state the full
name, present residence and business addresses, present residence and business telephone
numbers, present and last-known position and business of such person and, ifdifferent, the
business and position of the person at the time to which the interrogatory has reference.
7.
“Identify” when used with respect to a document, means:
a.
to specify the nature of the document (For example a letter or memorandum);
b.
to state the date, if any, appearing on the document or, ifnone, the date on which
the document was prepared and/or received; and
c.
to describe the substance ofeach document for which no privilege is claimed, or
to specify the nature and extent ofany claimed privilege.
d.
If the document
is not in your possession,
identify the person who has actual or
constructive possession or control ofthe document.
8.
“Or” shall mean and/or wherever appropriate.
9.
“Related to” or “relating to” or “in relation to” shall mean anything which
directly or
indirectly, concerns, consists of, pertains to, reflects, evidences, describes,
sets forth,
constitutes,
contains, shows, underlies, supports, refers to in any way,
is or was used
in the
preparation of, is appended to, or tends to prove or disprove.
10.
“Relied upon” shall mean being or having been depended upon or referred to or
being or having been arguably appropriate for such reliance.
11.
“Constructive Possession” means documents not in actual
possession, but to
which you have power to inspect, aright to control, review or otherwise access.
12.
“Knowledge” means first-hand information and/or information derived from any
other source, including hearsay.
2081327.01
6
13.
“IEPA” means the Illinois Environmental Protection Agency.
14.
“Board” shall mean the Illinois Pollution Control Board.
15.
“Current” or “Present” means the filing date ofthese Interrogatories.
16.
All terms not specifically defined herein shall have their logical ordinary
meaning, unless such terms are defined in the Act or the regulations promulgated thereunder, in
which casethe appropriate or regulatory definitions will apply.
IV.
REQUESTS
FOR PRODUCTION
I.
Produce
all documents identified, referred to, or used to answer any interrogatory
to you from MOP.
2.
Produce
any and all documents related to MOP’s alleged violations ofthe Clean
Air Act and/or the Illinois Environmental Protection Act and any and all documents related to or
relied upon
in filing the Complaint.
3.
Produce
all documents that you provided or that were provided
on your behalf to
any expert witness (retained or non-retained) whether or not you intend to call that expert witness
at any hearing in this matter.
4.
Produce
all documents including, without limitation, resumes, reports, notes and
communications prepared or reviewed by any expert witness (retained or non-retained) whether
or not you intend to call that expert witness at any hearing in this matter.
5.
Produce all documents you received from any expert witness (retained or non-
retained) whether or not you intend to call that expert witness at anyhearing in this matter.
6.
Produce all documents and agreements relating to any consultant’s work relating
to air permit issues at the MOP facility.
7.
Produce
any and all documents relating to physical inspections of the MOP
facility by any representative ofthe Complainant, the IEPA or the USEPA at any time and
whether or
not
such inspections were related to the violations alleged in the Complaint.
2081327.01
7
8.
Produce any and all documents relating to physical inspections of the MGP
facility by anyrepresentative of the Complainant, the IEPA or the USEPA and investigations of
the MOP facility
by any representative ofthe Complainant, the IEPA or the USEPA with respect
to the violations alleged in the Complaint.
9.
Produce any and all documents relating to the determination that the MGP
facility was a major stationary source for particulate matter in 1989.
10.
Produce any and all documents relating to major stationary source and/ormajor
modification determinations at the MGP facility.
11.
Produce any and all documents relating to determinations at the MGP facility of
significant emission increases for any pollutants.
12.
Produce anydocuments related to the “look back” period used
by IEPA to
determine emission
limits for the project which is the subject ofthe Complaint.
13.
Produce any and all documentsrelating to communications between IEPA and:
(1) August Mack Environmental, Inc., (“August Mack”); (2) any other consultants; (3) MGP; (4)
USEPA; and/or
(5)
internal IEPA conversations relating to air permit or air emission issues at
MGP.
14.
Produce any and all documentsrelated to the IEPA’s denial of US Clean Air Act
or Illinois Environmental Protection Act exemptionsto the MOP facility.
15.
Produce all correspondence and documents related to the December
1999
meeting involving several parties regarding the MOP facility.
16.
Produce a copy ofthe 3/6/1990 correspondence
from William
C. Eddins (IEPA)
to USEPA relating to PSD issues discussed with Mr. Roger Pfaff.
17.
Produce any and all correspondence
between IEPA and USEPA relating to air
inspection
or air permit issues at the MOP facility.
2081327.01
8
18.
Produce any and all documents related to or relied upon in the determination of
the
proposed penalty of $1,062,580 and the application ofthe BEN Model, including but not
limited
to, calculations, formulas, assumptions, and governmental policy or guidance documents.
19.
Produce all documents related to IEPA’s analysis of the monetary losses suffered
by MOP as those losses relate to (1) the penalty of$1,062,580; (2) the BACT determination; and
(3)the economic reasonable technology determination.
20.
Produce all documents related to JEPA’s
1999 decision to not assess an economic
benefit penalty beyond that date.
21.
Produce any and all IEPA documents related to or relied upon in any BACT
determination for emissions from feed dryers at the MOP
facility since Januaryl,
1990.
22.
Produce any and all documents relatedto what IEPA considers “compliance”
with BACT regulations.
23.
Produce all documents related to “technically feasible” and “economically
reasonable” technology available to control emissions as described in-the Complaint.
24.
Produce any
and all documents related to IEPA’s consideration of potential
energy, environmental and economic impacts in determining the level of emission
control that the
MGP facility could achieve pursuant to 42 U.S.C.
§
7479(3).
25.
Produce
all documents related to IEPA’s use of “top down” analysis to select the
BACT for the MOP facility.
26.
Produce all documents related to IEPA’s denial ofMOP’s proposal to install a
regenerative thermal oxidizer.
27.
Produce
Donald E. Sutton’s
10/9/97 and 7/9/97 correspondence to MOP and any
documents related to such correspondences.
28.
Produce any and all documents relating to emission limits established for the
MOP facility, including, but
not limited
to, construction permits 82110006, 93020061
and
208132701
9
93080045
and emission limits in any and all construction and/or operating permits relating to the
MOP facility.
29.
Produce
all documents relating to the permitting, operation and/or shutdown of
the fluidized bed combustion boileror any dryers at the MOP facility from January 1,
1987 to
present.
30.
Produce any and all documents, formulas, calculations and data relating to air
emission tests conducted at the MOP site and/or air modeling related to the MOP facility.
31.
Produce any and all documents relating to any PSD permitting for the MOP
facility including, but not limited to, air emission evaluations and effects on attainment and/or
nonattainment classification of the vicinity surrounding the MOP site.
32.
Produce all documents related to and relied upon
by you in analyzing MGP’s
good faith efforts to control particulate matter emissions including but not limited to,
IEPA’s
analysis of MOP’s attempts to hold the dryer manufacturer’s supplier accountable for MOP’s
expensive corrective actions when the dryer and scrubberfailed to properly control particulate
matter emissions.
33.
Produce all documents related to and relied upon by you in analyzing MOP’s
repeated modifications and installations of emission control-devicesthat failed to reduce
particulate matter emissions.
34.
Produce all documents related to IEPA’s analysis of the severity ofthe
particulate matter emissions, plant location and economic loss
due to unemployment, as well as,
the economic impactof a shut down ofthe MOP facility.
35.
Produce
all documentsrelated to IEPA’s denial of a construction permit for a wet
electrostatic precipitator at the MOP facility
in
1997.
36.
Produce all documents, correspondence and notes related to Mr. Dennis Brown’s
meetings with MOPrepresentatives, particularly between
1997 and 2000.
2081327.01
10
37.
Produce
all documents, notes, correspondence and reports relating to Mr. Robert
Fuhrman’s May
18, 2004 report on economic benefits obtained by MGP.
38.
Produce any and all documents and correspondence related:todiscussions:with
Mr. Charlie Merrill or Mr. Brian Cahill regarding the determination that no penalty or fmes
would be assessed ifMGP cooperated in completing the air modeling.
39.
Produce
all documents, notes
or minutes related to the March 6,
1998 meeting in
Springfield, Illinois between IEPA and MOP.
Respectfully submitted,
Husch & Eppenberger, LLC
190 Carondelet Plaza, Suite 600
St. Louis, Missouri
63105
(314)480-1500
2081327.01
LLC
11
BEFORETHEILLiNOIS POLLUTIONCONTROLBOARD
L~jç~8
o~~b
PEOPLE OF THE STATE OF ILLINOIS,
)
JUL
‘‘2005
Complainant,
)
~011~T~’
v.
)
PCB97-179
)
(Enforcement- Air)
MOP INGREDIENTS OF ILLINOIS, INC.,
)
)
)
Respondent.
)
RESPONDENT’S FiRST REQUEST
FOR
ADMISSIONS
OF FACTS TO COMPLAINANT
COMES NOW RespondentMOP Ingredients of Illinois, Inc., (“MOP”), by its attorneys,
Husch
& Eppenberger, LLC, pursuant to Section
101.616 of the Board’s Procedural Regulations,
Hearing Officer Order dated April 21, 2005 and Illinois Supreme Court Rule 216, requests that
Complainant, People of the State of Illinois, admit the truth in writing, under oath, ofthe
following facts.
I.
INSTRUCTIONS
1.
With respect to any requested admission which Complainant refuses to answer
on a claim of privilege, provide a statement signed by an attorney representing Complainant,
setting forth each such
assertion ofprivilege.
The statement should include:
(a)
the name andjob
title of every person involved in the conversation or
communication;
(b)
the nature of the information disclosed;
(c)
all facts relied
upon
in support of the claim of privilege;
(d)
all documents related to the claim of privilege;
(e)
all events, transactions or occurrences related to the claim of privilege;
and
2095282.01
1
(1)
the statute, rule or decision which is claimed to give rise to the
privilege or the reason for its unavailability.
2.
For all requested admissions which Complainant denies
or which Complainant
can neither admit nor deny, pursuant to Illinois Supreme Court Rule 216(c), Complainant is
required to provide Respondent with a sworn statement denying specifically the matters of which
admission is requested or setting forth in detail the reasons why Complainant cannot truthfully
admit or deny those matters.
II.
DEFINITIONS
1.
“Complainant” shall mean PEOPLE OF THE STATE OF ILLINOIS and the
ATTORNEY GENERAL OF
~E
STATE OF ILLINOIS, and any of Complainant’s employees,
agents, representatives, successors or assigns, or any other person acting or believed by
Complainant to have acted on their behalf.
2.
“Communication” shall mean, without limitation, any and all forms of
transferring
information, including discussions, conversations, meetings, conferences, interviews,
negotiations, agreements, understandings, inquiries, correspondence, documents, or other
transfers of information whether written or oral or by any other means, and includes any
document which abstracts, digests, transcribes or records
any communication.
3.
“Facility” and/or “Site” shall mean the property
located at South Front Street and
Distillery in Pekin, Tazewell County, Illinois, as reference in paragraph
5,
Count I of the
Complaint.
4.
“Person” shall include, but is not
limited to, any natural person; business or
corporation, whether for profit or not; firm, partnership, or other non-corporate business
organization;
charitable, religious, education, governmental,
or other non-profit institution,
foundation, body, or other organization; or employee, agent or representative of any ofthe
foregoing.
5.
“Or” shall mean and/or wherever appropriate.
2095282.01
2
6.
“Related to” or “relating to” or “in relation to” shall mean anything which
directly or indirectly, concerns, consists of, pertains to, reflects, evidences, describes, sets forth,
constitutes, contains, shows, underlies,
supports, refers to in any way, is or was used
in the
preparation of, is appended to, or tends to prove or disprove.
7.
“Relied upon” shall mean
being or having been depended upon
or referredto or
being or having been arguably appropriate for such reliance.
8.
“Knowledge” means first-hand information and/or information derived from any
other source, including hearsay.
9.
“IEPA” means the Illinois Environmental Protection Agency.
10.
“Board” shall mean the Illinois Pollution Control Board.
11.
“Current” or “Present” means the filing date of these Interrogatories.
12.
All terms not specifically defined herein shall have their logical ordinary
meaning, unless such terms are defined
in the Act or the regulations promulgated thereunder, in
which case the appropriate or regulatory definitions will apply.
III.
REQUESTS FOR ADMISSION
1.
Admit that MOP requested a construction permit for awet electrostatic
precipitator for its feed dryers.
RESPONSE:
2.
Admit that IEPA denied MOP’s construction permit application for awet
electrostatic precipitator in or about 1997.
RESPONSE:
3.
Admit that MOP verbally requested
in a meeting forpermission to construct a
regenerative thermal
oxidizer on
its feed dryers in or about December
1999.
RESPONSE:
2095282.01
3
4.
Admit that IEPA told Midwest Grain that no construction permit application for a
regenerative thermal oxidizer on MOP’s feed dryers would be approved until IEPA had finished
air emission modeling for the MOPfacility.
RESPONSE:
5.
Admit that subsequent to January 1, 2005, IEPA informed MGP or
its consultant,
August Mack, that IEPA was
still conducting air emission modeling related to particulate
emissions at the MOP facility.
RESPONSE:
6.
Admit that the IEPA’s air emission modeling relatedto particulate emissions
at
the MOP facility
is not complete or, if it
is complete as of the date of the response to this request,
admit that the IEPA’s air emission modeling related to particulate emissions at the MOP facility
was completed after June
1,2005.
RESPONSE:
7.
Admit that IEPA stated in a meeting that the “economic benefit clock” stopped
running for purposes of enforcement and penalties on or about December 1999.
RESPONSE:
2095282.01
4
Respectfully submitted,
Husch
& Eppenberger, LLC
190 Carondelet Plaza, Suite 600
St. Louis, Missouri
63105
(314) 480-1500
2095282.01
EPPENBERGER, LLC
5
