RECEIVED
CLERK’S
OFFICE
JUL
122005
STATE OF ILLINOIS
Pollution Control Board
OFFICE
OF
THE A’YFORNEY GENERAL
STATE OF ILLINOIS
Lisa Madigan
ATTORNEY GENERAL
July
11,2005
The Honorable
Dorothy Gunn
Illinois Pollution Control
Board
James
R.
Thompson Center,
Ste.
11-500
100 West Randolph
Chicago,
Illinois 60601
Re:
People v.
Petco Petroleum Corporation
PCB No.
05-66
Dear Clerk Gunn:
Enclosed
for filing please find
the original
and ten
copies of a
NOTICE
OF FILING
and
COMPLAINANT’S MOTION TO STRIKE OBJECTIONS TO REQUEST FOR THE ADMISSION OF
FACTS in
regard to the above-captioned matter.
Please file the originals and return
file-stamped
copies of the documents to
our office in the enclosed self-addressed,
stamped
envelope.
Thank you for your cooperation and consideration.
Very truly yours,
Thomas
Davis, Chief
•
Environmental
Bureau
-
-
500
South Second Street
Springfield,
Illinois 62706
(217)
782-9031
TD/pp
Enclosures
500 South Second Street, Springfield,
Illinois
62706
•
(21 7~
782-1090
•
‘I’I’\: (217
785-2771
•
Fax:
(217) 782-7046
100
\Vest
Randolph Street,
Chicago,
Illinois
6061)1
•
(312)
814—3000
•
1”l”i: (312
8)4—3374
•
Vax:
(312)
814—3816
1001
I
tsr
un
(
trbond
IL
Illinois
62901
(618
Y9
6
lOt)
1
I \
(OH)
9
640
F
ix
(615
i
~96416
BEFORE THE
ILLINOIS POLLUTION CONTROL
BQARD
CLE~~O~E°
PETCO PETROLEUM
CORPORATiON,
an Indiana
corporation,
NOTICE OF FILING
To:
Charles J.
Northrup, Jr.
Sorling, Northrup,
Hanna,
Cullen
& Cochran,
Ltd.
Suite 800,
Illinois Building
607
East Adams
P.O.
Box 5131
Springfield,
IL 62705
500 South
Second Street
Springfield,
Illinois
62706
217/782-9031
Dated:
July 11,2005
Claire A.
Manning
Brown,
Hay &
Stephens
205 South
Fifth,
Suite 700
P.O.
Box 2459
Springfield,
IL
62705-2459
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:
THOMAS
DAVIS,
Chief
Assistant Attorney General
Environmental Bureau
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
vs.
)
)
)
)
)
)
)
)
)
JUL
122005
STATE OF ILLINOIS
POIt~tj~~
Control Board
PCB No.
05-66
Respondent.
PLEASE TAKE
NOTICE
that on this
date
I
mailed for filing with the Clerk of the Pollution
Control
Board of the State of Illinois, COMPLAINANT’S
MOTION TO STRIKE
OBJECTIONS TO
REQUEST
FOR THE ADMISSION
OF FACTS,
a
copy of which is attached
hereto and
herewith
served
upon you.
CERTIFICATE OF SERVICE
I hereby certify that
I
did on
July 11,
2005,
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 and
COMPLAINANT’S MOTION
TO STRIKE
OBJECTIONS TO
REQUEST FOR THE
ADMISSION OF FACTS
To:
Charles J.
Northrup,
Jr.
Claire A.
Manning
Sorling,
Northrup,
Hanna,
Brown,
Hay & Stephens
Cullen
& Cochran,
Ltd.
205 South
Fifth, Suite 700
Suite 800,
Illinois
Building
P.O.
Box 2459
607
East Adams
Springfield,
IL 62705-2459
P.O.
Box 5131
-
Springfield,
IL 62705
and
the original and
ten copies by
First Class
Mail with postage thereon fully prepaid
of the
same foregoing
instrument(s):
To:
Dorothy Gunn, Clerk
Illinois
Pollution Control
Board
James
R.
Thompson Center
Suite
11-500
100 West
Randolph
Chicago,
Illinois 60601
r
A copy was
also sent
by
First Class
Mail with postage thereon fully
prepaid to:
Carol Webb
Hearing
Officer
Illinois
Pollution Control
Board
1021
North
Grand
Avenue East
Springfield,
IL 62794
..~-..
-...
Thomas
Davis,
Chief
Assistant Attorney General
This filing is submitted on
recycled paper.
BEFORE THE
ILLINOIS POLLUTION CONTROL
BOARERECEIVED
CLERK S OFFICE
PEOPLE OF THE
STATE OF ILLINOIS,
)
)
JUL
122005
Complainant,
)
STATE OF ILLINOIS
)
Pollution Control Board
v.
)
PCB
No.
05-66
)
(Water-Enforcement)
PETCO PETROLEUM
CORPORATION,
)
an Indiana
corporation,
)
Respondent.
)
COMPLAINANT’S MOTION TO STRIKE
OBJECTIONS
TO REQUEST
FOR THE
ADMISSION
OF FACTS
Complainant,
PEOPLE
OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney
General
of the State of Illinois,
hereby respectfully moves the Hearing Officer for the issuance
of an Order striking
the Respondent’s objections and
compelling
responses to
the
Complainant’s Request for the Admission
of Facts, and
states as follows:
Issues for Resolution
..
Section
101.610
of the Board’s Procedural Rules provides generally that all discovery
disputes will
be handled
by the assigned hearing
officer.
In
particular,
Section
101 .610(g)
provides that the hearing
officer is authorized
to
issue an
order “compelling the answers to
interrogatories or responses to other discovery requests.”
Section
101 .618(f) states,
in
pertinent
part:
“If written objections to
a part of the request are made,
the remainder of the
request must
be answered within the period
designated
in the request.”
Section
101 .618(h)
provides: “Any objection
to a request or td any answer must be stated with specificity,
and will
be heard
by the hearing
officer upon
notice and
motion of the party making the request.”
The Complainant has
served
a Request for the Admission
of Facts
upon the
Respondent.
In timely
responding
to the Request,
the Respondent admitted
some
facts and
objected to certain
others,
to wit:
1
3.
On
May 25, 2004,
the surface of the water in the small tributary to
Big
Creek
downstream of the reported release
was discolored.
“Respondent objects
to
Request
no.
3 as vague and
calling for an opinion and/or conclusion of law with
respect
to the
nature of the downstream
release as being
‘discolored.”
4.
On
May 25, 2004,
the small tributary to
Big
Creek downstream of the reported
release contained
unnatural
bottom deposits.
“Respondent objects
to
Request no. 4 as
vague and
calling for an opinion
and/or conclusion of law with
respect to the nature
of
the small tributary
as containing
‘unnatural
bottom deposits.”
6.
On August
21, 2004, the surface of the water in
Little
Moccasin Creek
-
downstream
of the reported release was
discolored.
“Respondent objects
to
Request
no. 6 as vague and calling for
an
opinion and/or conclusion
of law with respect to the
nature
of the downstream
release ~s being
‘discolored.”
9.
On
October 4,
2004,
a
black suspended precipitate was present on
the bottom of
Little
Creek downstream
of the reported release.
“Respondent objects
to Request no.
9
as vague with
respect to the description
of a
black substance on the bottom of Little
Creek as
a ‘suspended
precipitate.’
Respondent admits that a black substance was on
the bottom of Little Creek on the date referenced.”
10.
On
October 4,
2004, the waters
in Little
Creek downstream of the reported
release were discolored and turbid.
“Respondent objects
to
Request no.
10 as vague
and calling for an opinion
and/or conclusion
of law with respect to the nature of the
downstream
waters of
Little Creek as
being ‘discolored’ and
‘turbid.”
13.
The Ada
Clow Sump
is located in
a flood
plain
and
had
been flooded
in
2002.
“Respondent objects
to
Request no.
13
as
being
irrelevant to the issues
in
this
proceeding.”
2
18.
On November 8,
2004, a
black suspended precipitate was present
in
the water of
the tributary of Big Creek downstream of the reported release.
“Respondent objects to
Request no.
18
as vague with
respect to the description of a black substance on the
bottom of a tributary of Big
Creek as
a ‘suspended precipitate.’
Respondent admits that
a black substance was on the bottom of a tributary of Big
Creek on the date
referenced.”
20.
On
November
8,
2004,
the waters of the tributary of Big
Creek downstream of
the reported release were discolored and turbid.
“Respondent objects
to
Request no.
20 as vague and
calling for an opinion and/or conclusion of law with
respect to the
nature of the downstream waters
of a tributary
of Big Creek
as being
‘discolored’ and
‘turbid.”
22.
The crude oil
reportedly released on
December 2, 2004,
affected an area
approximately 600 square feet
before discharging
into
a tributary of South
Fork Creek.
“Respondent objects to
Request no.
22 as vague
and calling for an opinion and/or
conclusion of law with
respect to whether a 600
square foot area was ‘affected.”
26.
The salt water and
crude oil
reportedly released
on
February
15,
2005,
impacted
an
area approximately 12,000 square feet.
“Respondent objects
to
Request no. 26 as
vague and
calling for
an
opinion and/or conclusion of law with respect to
whether a
12,000 square foot
area was ‘impacted.”
The Complainant moves to strike the above-referenced
objections
on the following grounds and
to compel the Respondent
to provide
either admissions or denials
in good faith
and
after proper
investigation.
The Requests to
Admit are not “Vague”
A request to
admit deals with
a question of fact, even
an ultimate
fact which might give
rise to a conclusion
of law.
P.R.S.
International,
Inc.
v.
Shred Pax Corp.,
184
lll.2d 224,
236
3
(1998).
In this case, the
Illinois Supreme Court explicitly acknowledged that the purpose of the
rule governing
requests to admit is not to
discover facts,
nor is it limited
to obviating the
difficulty involved regarding proof of evidence that is incontrovertible;
rather,
it is to establish
some of the material facts
in a case without the necessity of formal proof at trial,
or,
in
other
words, to separate the wheat from the chaff by circumscribing contested factual
issues for clear
and
succinct presentation to the trier of fact.
See Bright
v.
Dicke,
166
lII.2d 204, 208
(1995);
23
Am.Jur.2d
§
314
(1983).
This is the context
in.which the hearing
officer must determine
whether a party has
properly requested admission of a fact.
For instance,
the question of
whether an
action was
taken,
an event occurred, or a consequence resulted
is one of fact,
and
even
if the admission of that fact plainly requires the fact finder to conclude
that a party
breached
a contract or was
negligent or caused
pollution as a matter of law,
a request for that
admission is proper.
See,
e.g.,
Hubeny
v.
Charise,
305
Ill.
App.
3d
1038,
1044 (2’~
Dist.
1999);
P.R.S.,
184
III.
2d at
236-37.
-
None of the requests objected
to as being
“vague” is factually deficient.
Each
is fixed
in
time and place
in
relation to a reported release.
Each request is a concise statement of fact
regarding the consequence resulting from the reported release.
Each
request simply poses a
question: Was
the surface of the creek discolored?
Were the waters. turbid?
Did
the creek
contain black suspended
precipitate or unnatural
bottom deposits?
Other requests
regarding the reported releases, indicating dates and
estimated
quantities of crude oil
and/or salt water, were admitted
by the Respondent;
none of those
requests was objected to
as being
“vague.”
Therefore, the occurrences are not disputed.
The
Respondent is obligated to either
admit or deny the objective physical effects
of the releases
upon the environment.
Moreover,
the Respondent is obligated to
state an
objection with
specificity.
What is purportedly so vague about the terms “discolored” and
“turbid”
and
-
“suspended precipitate” and “unnatural
bottom deposits?”
Some
of these terms are
specifically
4
employed
in the regulation at issue,
35
Ill. Adm.
Code
302.203, which defines “offensive
conditions” and
most are in
common usage
in
assessing whether “water pollution” as statutorily
defined and
prohibited
may have occurred.
As argued
below,
these terms
are factual and
not
“legal.”
In fact, these terms are
“technical”
in the sense of directly
pertaining to
the technique of
assessing pollutional
impacts of a discharge of contaminants.
These terms are well-defined
through the practice
of environmental law and
the objections
of vagueness
must be
rejected.
The Respondent also objects
to the terms “suspended precipitate,” “impacted” and
“affected,” but does not suggest
in what manner such may be
too vague for a good faith
response.
In
order to
properly
raise an objection, the Respondent is required
by Section
101.618(h) to
articulate such with
specificity.
The term “suspended precipitate” is utilized
in
Requests no.
9 and
18.
Request no.
9 pertains to
the impacts of the 300 barrels of salt water,
released
on
October 4,
2004,
upon
Little
Creek.
Request no.
18
pertains to how
the November
8, 2004,
release of approximately
100 barrels of salt water and
1
barrel of crude oil may have
affected
Big Creek.
The evidence
presented in the circuit court actions1 was not contested
by
the Respondent regarding the chloride levels of salt water from oil
production activities and the
effects of such
upon freshwater streams.
This evidence
included analytical
data that
this type of
salt water typically contains 50,000 to 60,000 mI/L of chlorides
(plus varying
amounts of
petroleum constituents) and expert opinion testimony regarding the toxicological, chemical
and
physical
impacts, especially upon
the smaller streams with lower flows.
In this context,
the term
“suspended precipitate” is
both
scientifically precise
and commonly understood.
The effects of a
hundred barrels (or less)
of salt water with high concentrations of chlorides are
readily subject
to
observation;
it sinks toward the bottom and
does not readily disperse due
to its
high salinity and
1People
v.
Petco Petroleum,
Jefferson County No.
99-CH-55;
People
v.
Petco Petroleum and Jay
Bergman,
Sangamon
County 2000-CH-458.
5
lower ambient temperature.
Petco’s field workers
and spill responders
have certainly acquired
the experience to understand
these facts.
-
As to
the terms “impacted” and “affected,” such were used
in the preceding paragraph in
the context of the streams into
which large quantities of salt water were discharged.
As
used
in
Request no. 22, “affected” is used
in
the context of a barrel of crude oil spilled upon the ground.
As
used
in
Request no. 26, “impacted”
is used
in the context of approximately 20
barrels of salt
water and
3 barrels of crude oil which leaked from a pipeline.
These are not
even terms of art
but rather words of common
usage.2
The Requests to Admit do not Call
for an
Opinion
The Respondent’s
objections are somewhat ambiguous as pleaded and lack
the required
specificity.
The objections
(whether evidentiary or legal) must fail.
The requests
to admit seek
to determine whether facts are
true and
not whether,
if
such
facts are true,
the Respondent has
an
opinion consistent or inconsistent with the allegations.
Alternatively,
the Respondent may be
attempting
to object that the requests purportedly call “for an opinion
.
.
.
of law.”
As
noted
above, even
if the admission of a fact plainly
requires the fact finder to
conclude that a party breached
a contract or was negligent or caused pollution
as a matter of
law,
a request for that admission
is proper.
In
other words,
a request to admit that the waters
were “discolored” and “turbid”
does
not call for an “opinion” (either
evidentiary or legal) that
offensive conditions or pollution resulted from the releases of crude oil
or salt water.
Admissions
of such facts would, of course,
provide a record for the Board
to
determine that such violations
occurred.
This is the Complainant’s legitimate
objective.
The requests call
neither for an
“opinion” regarding facts
nor for a
legal “opinion.”
2lnterestingly,
Petco is still challenging the following terms
as vague
in its appeal of the Sangamon
County case: “pattern,” “documented event,”
“substantial environmental harm,” and “environmental
damage
to property.”
(No. 4-04-0868, Appellee Br.
53-58)
6
The
Requests to Admit do not Call
for a Conclusion of Law
It is well settled that a request seeking
the admission of a conclusion of law is improper.
For instance,
Request no.
10
could not state:
“On October 4,
2004, the waters in
Little Creek
downstream
of the reported release were
polluted.”
Similarly,
a request as follows would also be
improper: “Petco’s discharge
of salt water to
the small stream altered its
physical and
chemical
properties
so as
to likely 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.”
However,
a request
seeking an
admission that
“Petco’s discharge of salt water to
the
small stream altered
its physical and
chemical properties,” being
merely factual, would not be
improper as
calling for a “legal” conclusion.
A request to admit that the waters were “discolored” and “turbid”
does not call for a legal
conclusion simply because such
terms are
utilized in
regulatory provisions.
These terms
are
descriptive of physical
and empirical
conditions.
The Respondent’s arguments seem to be that any terms
not defined in
the Act
or
regulations are “vague” and any terms so defined
are “legal” terms
calling for a conclusion of
law.
This approach
must be rejected
and the Respondent compelled to answer.
-
The
Request to Admit no.
13
is
Relevant
This request seeks the admission that the Ada
Clow Sump
is located in
a flood
plain and
had
been flooded
in 2002.
The Respondent has admitted
that thel 0 to
15 barrels of crude oil
released
on
May 31, 2004, was within
a cement
pit
until heavy rains and flooding caused the
-
sump pump
to
malfunction, which then
allowed the crude oil
to
overflow the
pit.
The relevance
of this facility’s
location is clear
in the context of Section
33(c)(iii) of the Act: “the suitability or
unsuitability of the pollution source to
the area
in which
it is located.”
Likewise,
prior flooding
is
7
relevant to certain criteria listed
in
Section 42(h) of the Act, such
as
due diligence and economic
benefit.
Moreover, the relevance of a requested admission
is not limited to the subject matter
involved
in the pending
matter but also
relates to any potential claim or defense of the
Respondent.
In
other words, the scope of disclosure cannot be restricted
merely
in
reference to
the allegations of violation.
Conclusion
The Complainant has complied with
Section
101.618(d), which requires the “written
request for admission
of the truth
of specific statements of fact.”
Each
of the ten requests to
which the Respondent has
objected as set forth above is a specific statement of fact.
Each is
concisely stated without misleading qualifications and confusing
or ambiguous language.
Yet,
the Respondent has attempted to evade admissions by interposing objections without the
specificity required
by Section
101.618(h).
The Complainant asks that the hearing officer strike
the objections
and
issue an order compelling the Respondent to
answer these requests
to admit.
WHEREFORE, Complainant,
PEOPLE OF THE STATE OF
ILLINOIS, hereby
respectfully requests
that the Hearing
Officer issue
an Order striking
the objections and
the
Respondent to respond to the
Request for the Admission
of Facts.
Respectfully submitted,
PEOPLE
OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW J.
DUNN, Chief
Environmental
Enforcement Division
THOMAS
DAVIS, Chief
Environmental
Bureau
Assistant Attorney General
8
500
South Second
Street
Springfield,
Illinois 62706
Dated:
July
8,
2095
9
