CERTIFICATE OF SERVICE

Husch&Eppenberger, ac
1. EXHIBIT
2. EXHIBIT

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER

2005

BEFORE

TilE ILLINOIS POLLUTION CONTROL BOARD

TAZEWELL

COUNTY,

ILLINOIS

PEOPLE OF THE STATE OF ILLINOIS,

)

Complainant,

)

PCB No. 97-179

)

MIDWEST GRAIN PRODUCTS OF

)

ILLINOIS, INC., an

Illinois corporation,

)

Respondent.

)

MOTION TO STRIKE COMPLAINANT’S FIRST SET OF INTERROGATORIES, OR,

IN TIlE ALTERNATIVE, MOTION FOR PROTECTIVE

ORDERLIMITING

INTERROGATORIES TO PREVENT UNDUE EXPENSE AND HARASSMENT

COMES NOW

Respondent, MGP Ingredients ofIllinois, Inc.’s (“MGP” or

“Respondent”)

f/k/a

Midwest Grain Products of Illinois, Inc., by and through its attorneys, and

moves the Hearing Officer, pursuant to Section

101.616 ofthe Illinois Pollution Control Board’s

Rules,

III. Adrn. Code

101.616, to

strike Complainant’s First Set of Interrogatories, or, in the

alternative,

enter a protective order limiting Complainant’s interrogatories to prevent undue

expense and harassment.

In support ofits motion,

Respondent states as follows:

Respondent received Complainant’s First Set ofInterrogatories and First Set of

Requests for Production on, or about July

11, 2005.

Complainant’s First Set

of’Interrogatories

and First Set of Requests for Production are attached hereto as Exhibits

and 2, respectively.

Respondentbegan preparing responsesto

Complainant’s discoveryrequests

immediately upon receipt ofsuch requests.

In preparing its responses, Respondent has determined that it cannot completely

comply with certain ofComplainant’s discovery requests as written.

Respondent’s discovery

issues amount to five interrogatories and three associated document production requests.

ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER 1,2005

On September 20,

2005,

Respondent, in an attempt to

informally resolve the

discovery issues, forwarded a letterto Complainant identi~ing

such interrogatories and

associated document production requests it believed could not be answered as written due to the

undue expense in time and effort required to answer such requests.

Respondent also identified

certain discovery requests that it considered overly broad and duplicitous,

and could not be

expected to reasonably answer.

The September 20, 2005 letter is attached hereto as Exhibit 3.

On September 26,

2005, Respondent, having not received any response from

Complainant

to the September 20 letter, forwarded a letter to Complainant requesting a response

to the September 20 letter so that Respondent could continue with its production efforts.

The

September 26, 2005

letter is attached hereto as Exhibit 4.

On October

5, 2005,

Respondent, having still not received any response from

Complainant

to the September 20 letter, forwarded yet another letter to Complainant requesting a

response to the September 20 letter.

The October

2005 letter is attached hereto as Exhibit

On October

12, 2005,

the Hearing Officer issued

an Order resolving

Complainant’s motion to strike Respondent’s amended first set ofinterrogatories and

presumably reinstating the discovery process.

The Orderis attached hereto as Exhibit

No response to the September 20 letter was received, therefore, on October 14,

Respondent, in another attempt to

informallyresolve the discovery issues, forwarded a letter to

Complainant requesting a response by close ofbusiness, October

17, 2005.

The October 14,

2005

letter is attached hereto as Exhibit

The letter informed Complainant that MOP was

continuing “to work diligently to complete responses to the State’s discovery requests.”

Complainant was also reminded that over three weeks had passed since Complainant was

notified of Respondent’s desire to informally resolve the discovery issues.

ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2005

On October 25,

2005,

the partiesparticipated in a telephonic status conference

with the Hearing Officer.

During

the status conference, Respondent informed the Hearing

Officerthat it was awaiting

a response from the Complainant regarding the discovery issues

identified in the September 20 letter.

Complainant replied that its response would be forwarded

to Respondent later that thy.

Respondent took Complainant’s reply to mean that Complainant

had prepared and was forwarding a substantive responses to

Respondent’s discovery issues

identified in the September 20 letter.

10.

At 1:10 pm, October 25, 2005, Respondent received Complainant’s “response,”

attached hereto as Exhibit

The “response” asserted the existence of a “stay ofdiscovery”

while Complainant’s motion to strike was pending.

The “response” went on to state that the

Hearing Officer’s Order regarding that motion was received by Complainant on October

15 and

that Complainant’s counsel was “out ofthe office and out oftown” October 16 and October 19

through October 21.

More importantly, Complainant stated, “We will respond to your letterof

September 20, 2005 as soon as possible.”

11.

Three minutes later, at 1:13 pm, Respondent received another letter from

Complainant wherein Complainant’s counsel corrected the dates she was “out of the office and

out oftown;” the new dates being October 14 and October 17 through October 21.

The letter is

attached as Exhibit

12.

Complainant’s assertion of a “discovery stay” as support for its

failure to respond

is misplaced.

The September

7, 2005 Hearing Officer Order, attached hereto as Exhibit

10,

specifically states that

discovery deadlines

are stayed pending a ruling on Complainant’s motion

to strike.

The plain language ofthe Order makes clear the Order only appliesto discovery

deadlines.

Nothing in the Order speaks to the stay of attempts by either party to resolve other

ELECTRONIC

FILING,

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OFFICE, NOVEMBER

2005

discovery issues or to stay the process ofresponding

to discovery requests that are not at issue.

In fact, Respondent continued to assemble and prepare responses to Complainant’s discovery

requests during the discovery deadline stay.

13.

Even ifthe September 7 Order could have been interpreted as a stay to the entire

discovery process as Complainant seems to assert, why then did Complainant lay silent and wait

until October 25 to raise that argument?

Such a response could have been provided to

Respondent on

September 21

as easily as it was provided over a month later on October-25.

14.

To date, some 42 days after Respondent’s

initial request and 22 days after the

Hearing Officer’s Order resolving the outstanding discovery issues, Complainant has refused

provide a substantive response to Respondent’s concerns with Complainant’s interrogatories.

15.

Respondent is puzzled by Complainant’s statement during the status conference

that it would

be replying to Respondent’s September 20 letter, leading the parties to the

reasonable

perception that a substantive response would follow later that day and then

forwarding

a response asserting procedural issues as an answer.

Such evasive conduct is

prejudicial

to Respondent because Respondent has been continually working to comply with its

discovery obligations throughout this process.

16.

Due to Complainant’s conduct, Respondent has been forced to identify, review

and collect information in such a manner as to slow the discovery process.

As a result,

Respondent has spent additional effort to comply with Complainant’s discovery requests and

incurred substantial costs in its efforts.

17.

Pursuant to Illinois Supreme Court Rule 201(k), Respondent’s counsel

responsible for thai has made several reasonable attempts to resolve the discovery issues

identified by Respondent.

By refusing to provide a substantive reply to any of Respondent’s

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overtures to informally resolve the discovery issues, counsel for Complainant has essentially

made herself“unavailable for personal consultation.”

18.

Complainant’s discovery requests are, in part, overly broad, duplicative and/or

unclear, causing Respondent to

bear an unnecessary burden and expense in attempting to reply

with such requests.

Further, Complainant’s refusal to provide a substantive reply to

Respondent’s attempts to discuss discovery issues amounts to harassment.

19.

Complainant’s Interrogatory Number 4 requests among other things,

“all costs

entailed in the purchase, installation, modification, maintenance and operation of the

feed dryer

systems 651

and 661, and the Swiss Combi systems...”

This request encompasses virtually every

document generated by operational activities at MOP and the preponderance ofits financial

documentation.

It will

be practically impossible for MOP to respond to this request as written.

20.

First, MOP does not have dryer maintenance documentation prior to

1999.

21.

Second, MOP will needto review all maintenance files, files related to the dryers,

and retrieve any documents used in each and every work order related to the dryers.

After

1999,

MOP estimates that mechanic work orders for the dryers amount

to several hundred instances per

year.

To satisfy this request,

MOP estimates it will take one person, working full-time,

at least

one month to locate, review and organize the documents.

In addition, all documentation relating

to the operational costs of the dryers, including but not

limited to all

operator time

sheets, gas

readings, expense documents, management notes and meeting notes will need to be located and

reviewed.

MOP estimates this process will require the services of an additional employee,

working full-time over three weeks to assemble this

information.

22.

Finally, none of the above estimates include the identification, collection and

production of information and documents related to the Swiss Combi dryer.

MOP sees no

ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER

1, 2005

relevancy ofthe Swiss Combi dryer to

this action and has requested from Complainant its

theories regarding the relevancy ofthe Swiss Combi dryer.

Complainant has not replied to

Respondent’s requests

to discuss the Swiss Combi dryer issue.

23.

Complainant’s Interrogatory Number 4

is overly broad and unduly burdensome as

to time and scope.

Respondentwill be

forced to hire additional personnel

to comply with

Complainant’s request as written.

Respondent has offered to discuss with Complainant the

possibility of narrowing or focusing

this request so that Respondent will not incur such a

significant burden.

To date, Complainant has not replied to Respondent’s offer.

24.

Complainant’s Interrogatory Number

9 requests all information “regarding the

date(s) ofoperation of the feed dryer systems

651

and 661

and the Swiss-Combi system...

beginning

1994 through the present.”

Respondent cannot be reasonably expected to respond to

this

request.

25.

First, MOP does not have dryer operation documentation prior to

1999.

26.

Second, to properly respond to Complainant’s request, MOP will be required to

locate and review documents from three shifts per day,

365 days per year, for eleven years.

This

amounts to over

12,000 discreet events and an unknown (at this point) number ofpages.

27.

Finally, the above analysis does not take into account any documents related to

the Swiss Combi dryer because Respondent does not find the Swiss Combi dryer relevant to this

matter.

28.

Complainant’s Interrogatory Number

is overly broad and unduly burdensome as

to time and scope.

Respondent will certainly be forcedto hire additional personnel to comply

with Complainant’s request as written.

In its September 20 letter, Respondent provided what it

believes to be are two very reasonable suggestions

to resolve the issues identified with

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FILING,

RECEIVED, CLERKS

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2005

Complainant’s Interrogatory Number

To date, Complainant has not replied to Respondent’s

suggestions.

29.

Complainant’s Interrogatory Number

requests

all information “regarding the

construction and operation offeeddryer systems

651

and 661

and the Swiss-Combi systems,

including emissions testing ofsaid equipment; the construction and operation of air pollution

control equipment to control PM emissions generated during operation of feeddryer systems

651

and 661; and modeling prescribed by federal Prevention of Significant Deterioration (“PSD”)

requirements.”

It will be virtually impossible for MOP to respond to this

request as written.

30.

First, MGP does not have dryer operation documentation prior to 1999.

31.

Second, due to the broad nature of the request, MGP will be required to locate and

review thousands of pages ofdocuments related to the construction and operation ofthe dryers.

Similar to

Interrogatory Number 9, Respondent estimates that to properly reply to

Interrogatory

Number

will require an additional employee devoted exclusively to this request for almost

two months.

32.

Third, Complainant attempts to conceal

four separate requests within

Interrogatory Number

11.

It appears the primary request within Interrogatory Number

seeks

all information regarding the “construction and operation of feed dryers 651

and 661 and the

Swiss-Combi systems.”

The Complainant then proceeds to separate by semi-colon a first sub-

part requesting all information related to “emissions testing ofsaid equipment.”

Emissions

testing ofthe dryers go beyond the subject matter ofconstruction and operation of the dryers.

Specifically, the “emissions testing” subpart does nothing to “elicit details

that are common to

the theme ofthe primary question.”

Swackhammer v.

Sprint Corp.,

PCS,

225 F.R.D. 658, (D.

Kan. 2004). The second sub-part within Interrogatory Number

relates to the construction and

ELECTRONIC FILING,

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2005

operation of air pollution control equipment.

This request seeks information related to a

completely different set of equipmentposed in the primary request.

The third sub-part concerns

the wholly unrelated issue of “modeling prescribed by federal Prevention of Significant

Deterioration (“PSD”) requirements.”

The topic ofmodeling doesnot elicit details common to

the construction and operation offeed dryers 651

and 661.

None ofthe sub-parts within

Interrogatory Number

elicit anything remotely common

to the theme ofthe primary request.

Thus, the three sub-parts within Interrogatory Number

should each count as individual

requests.

33.

Fourth, the sub-parts of Interrogatory Number

concerning emissions testing are

duplicative of the request in Interrogatory Number

8 regarding “actual PM emissions.”

Further,

Interrogatory

requests duplicative information found in Interrogatory Number 9.

Both are

broad requests that seek information related to the operation offeed dryer systems

651

and 661

and the Swiss Combi system.

34.

Finally, Complainant has chosen again to include a request for information related

to the Swiss

Combi system.

As noted above, Respondent

is unable to link the relevancy ofthe

Swiss Combi dryer to this proceeding.

35.

Complainant’s Interrogatory Number

is overly broad and unduly burdensome

as to time and scope.

Respondent will be required to hire additional personnel in order to

comply with Complainant’s request as written.

This interrogatory also contains several sub-parts

that go beyond the subject matter ofthe original interrogatory.

Further, the request is duplicitous

in that it seeks similar information found

in Interrogatories 8 and 9.

Respondent has offered to

discuss with Complainant the possibility ofrestructuring this request to (1) avoid the

unnecessary burden and expense this request imposes upon the Respondent; and (2) combine the

ELECTRONIC

FILING,

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duplicative portions of Interrogatories 9 and

into one request.

To date, Complainant has not

replied to Respondent’s

offers.

36.

Interrogatory 26 seeks information related to MGP

‘5

“decision not to modif~’

its

existing construction permit dated December

1995 for the feed dryer systems

651

and 661.”

Complainant

is asking Respondent to prove a negative.

Respondent finds this question

confusing.

This request is overly broad.

Respondent requires more specific information

in the

request in order for it to respond properly.

37.

Accordingly, Respondent believes it cannot reasonably be expected to answer

Interrogatory 26 as posed.

38.

Regarding Interrogatory Number 28, Complainant refers to the Stipulation and

Proposal for Settlement (“Stipulation”), entered in the matter of

People v.

Midwest Grain,

PCB

95-005.

The

Stipulation is attached hereto as Exhibit

11.

Complainant makes an improperuse

of the Stipulation.

Page

of the Stipulation provides,

“The parties state that this

stipulation is

entered into for purposes of settlement only and that neither the fact that a party has entered into

this stipulation, norany ofthe facts stipulated herein, shall be admissible into evidence or used

for any purpose in this or any other proceeding, except to enforce the tenns hereofby the parties

to this agreement.”

The Stipulation further statesthat the Stipulation “may be used as a factor

in determining appropriate civil penalties forany

future violations of the Act.”

Given the limited

purpose ofthe Stipulation, Complainant finds the Stipulation’s relevancy as part of an

interrogatory to be questionable.

39.

Further, Interrogatory 28

is extraordinarily broad, duplicative and confusing.

The

primary request appears to be for all information “relevant to the contention that the instant case

represents a repeated violation of operating permit emission limits and PSD requirements.”

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2005

40.

Respondent admits that it has absolutely no idea what Complainant is asking for

in Interrogatory 28.

Complainant’s cryptic request appears to ask Respondentto provide

evidence ofemission limit and PSD violations.

If so, this request is already covered by

Interrogatories

8 and

12.

41.

Respondent has offered to discuss with Complainant the possibility ofnarrowing

or clarifying this request so that Respondent can properly respond.

To date, Complainant has not

replied to Respondent’s offer.

WHEREFORE, Respondent respectfully requests that the Hearing Officer strike

Complainant’s First Set ofInterrogatories.

In the alternative, Respondent seeks a protective

order limiting Complainant’s interrogatories to prevent harassment and undue expense in time

and effort.

Husch & Eppenberger, LLC

190 Carondelet Plaza, Suite 600

St. Louis, Missouri

63105

(314) 480-1500

Dated:

t44L.?ME~&t~

2G05

Respectfully submitted,

HUSCH

One ofits attorneys

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CERTIFICATE OF SERVICE

I hereby certify that I did on the

1st day ofNovember, 2005,

send a true and

accurate copy ofRESPONDENT’S MOTION TO STRIKE COMPLAINMJT’S FIRST

SET OF INTERROGATORIES, OR, IN THE ALTERNATIVE, MOTION FOR

PROTECTIVE ORDER LIMITING INTERROGATORIES TO PREVENT UNDUE

EXPENSE AND HARASSMENT by first class mail, postage prepaid to:

Jane

E. McBride

Assistant Attorney General

500 South Second St.

Springfield, IL 62706

Carol Webb

Hearing Officer

Illinois Pollution Control Board

1021 North Grand Ave. East

P.O. Box 19274

Springfield, IL 62794-9274

2081240.02

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER 1,2005

BEFORE THE ILLINOIS

POLLUTION CONTROL BOARD

TAZEWELL COUNTY, ILUNOIS

PEOPLE OF THE

STATE OF ILLINOIS,

)

Complainant,

)

PCB No. 97-179

)

MIDWEST GRAIN

PRODUCTS OF

ILLINOIS, INC., an Illinois corporation,

)

Respondent.

)

COMPLAINANT’S FIRST SET OF INTERROGATORIES TO

RESPONDENT MIDWEST GRAIN PRODUCTS OF ILLINOIS, INC.

NOW

COMES Complainant, PEOPLE

OF THE STATE OF ILLINOIS,

ax re~

Lisa

Madigan,

Attorney General

of the State of Illinois, and propounds the following iriterrogatories

on Respondent.

MIDWEST GRAIN

PRODUCTS OF ILLINOIS,

INC. (“Respondent”),

answered

in accordance with

the Illinois Code

of Civil Procedure and

the

Illinois Supreme

Court

Rules on Civil Proceedings in the Trial

Court,

and

the following instructions and

definitions, within 26 days of the date of seivice hereof.

INSTRUCTIONS

(a)

With respect to each Interrogatory,

in addition to supplying the information

requested and identifying the specific documents referred to,

please

identity all documents or

other evidence to which you referred in

preparing your answer thereto.

(b)

If any document identified

an answer to an

Interrogatory was,

but is no longer.

in your possession or subject to your custody or control,

or was

known

to you, but is no longer

in existence, please state what disposition was made of it or what became of

it.

(c)

It any document or statement is withheld from production hereunder on the basis

of a claim

of privilege or otherwise,

please identify each such document and

the grounds upon

which its production

is being withheld.

EXWBff

ELECTRONIC FILING,

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(d)

You are reminded

of your duty under Illinois Supreme Court Rule 213(l) to

seasonably supplement or amend any answers or responses to these

Interrogatories whenever

new or additional information

becomes known to you subsequent

to your answeror msponse.

(e)

You are further reminded of your duty under Illinois Supreme Court Rule

213(d)

to serve a swom answer or an objection to each

Interrogatory.

(f)

Ifyou

are unable or refuse to

answer any Interrogatory completely for any

reason including, but not limited

to, because of a claim of privilege,

please so

state,

answer the

Interrogatory to the extent possible, stating whatever knowledge or information you have

concerning the portion of

the Interrogatory which

you do answer, and set forth

the reason for

your inability to answer more fully.

DEFINITIONS

As used in these

Interrogatories, the terms listed below are defined

as follows:

(a)

“Document” or “documents” means any of the following of which you have

knowledge or which are

now or were formerly in your actual or constructive possession, custody

or control:

any writing

of any kind,

including originals and

all nonidentical copies (whether

different from the originals by reason of any notation made

on such copies or otherwise),

including without limitation maps,

drawings, sketches,

blueprints, aerial photographs,

log books,

lab reports, chain-of-custody forms, weather forecasts, correspondence, memoranda, notes,

desk calendars, diaries, statistics,

checks, invoices, statements,

receipts, returns,

warranties,

guarantees, summaries,

pamphlets,

books, prospectuses, interoffice

and intraoffice

communications,

offers,

notations of any sort of conversations,

telephone calls, meetings or

other communications,

bulletins, magazines, publications, printed matter, photographs,

computer printouts,

teletypes, telefax, invoices, worksheets and all drafts, alterations,

modifications, changes and amendments to any of the foregoing;

any

spreadsheets, database,

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2005

correspondence, e-mail messages, or other information of any kind

contained in

any computer

or other electronic information storage system;

and any audiotapes.

videotapes, tape

recordings,

transcripts, or graphic or oral records or representations of any kind.

(b)

“Possession, custody or control” includes

thejoint or several possession,

custody or control not only by the person

to whom these Interrogatories are addressed, but also

the joint or several possession, custody orcontrol by each or any other person acting or

purporting to act on behalf of the person, whether as employee, contractor, attorney,

accountant,

agent,

sponsor,

spokesman, or otherwise.

(c)

“Relates to” means supports, evidences, describes,

mentions,

refers to,

contradicts or comprises.

(d)

“Person”

means any natural person, firm,

corporation, partnership,

proprietorship, joint venture,

organization, group of natural persons, or other association

separately identifiable whether or not such association

has a separatejuristic existence in its

own

right.

(e)

“Identify”,

“identity” and

“identification,” when

used to

refer to any entity other

than a

natural person,

mean

to state its full name,

the present or last known address of its

principal office or place of doing business, and the type of entity (e.g., corporation, partnership,

unincorporated association).

(1)

“Identify”, “identity”,

and “identification”, when used

to refer to a natural person,

mean to state the following:

The person’s full

name and present or last known home address,

home

telephone number,

business address and

business telephone number;

The person’s present title and

employer or other business affirmation;

and

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The person’s

employer and

title at the time of the actions at which each

Interrogatory is directed.

(g)

“identify,” “identity” and

“identification,’ when

used to refer to a document, mean

to state the following:

The subject of the document;

The title of the document;

The type of document (e.g., letter,

memorandum, telegram, chart):

The date of the document or,

if the specific date

thereof is unknown,

the

month and year or other best approximation of such date;

The identity of

the person or persons who wrote, contributed to, prepared

or originated such document; and

The present or

last known location

and custodian of the document.

(h)

“You’,

“Respondent Midwest Grain”,

“Midwest Grain”

means Respondent

Midwest

Grains Products

of Illinois,

Inc., including, but not limited

to, any employees,

attorneys,

independent contractors, or other agents of any kind of Respondent Midwest Grain or any

agency, branch,

division, or other department thereof.

(i)

“Complaint’ means Complainant’s

Complaint filed on April

1997.

(j)

“Swiss-Combi systems” refers to the Swiss-Combi currently in operation at the

Midwest facility, and the

new Swiss-Combi to be constructed.

(k)

“Feed dryer systems

651

and 661” are the feed dryers installed

at Respondent

Midwest Grain’s facility under

Illinois EPA Construction Permits #93020061

and #93080045.

INTERROGATORIES

Please indicate the source

of financing for and methods and

procedures utilized

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2005

to procure services and equipment relative to

the purchase,

installation and/or modification of

feed dryer systems 651

and 661, including cyclones and scrubbers utilized to control particulate

matter (“PM”), and the Swiss Combi systems.

ANSWER

Please indicate the date(s) upon which construction of feed dryer system

651

and feed dryer system 661

commenced.

ANSWER

Identify each

representative, agent, or

employee of Respondent Midwest Grain

and anyone outside of the control of Respondent Midwest Grain, having knowledge or

information relating to the purchase,

construction, operation,

maintenance, or modification of

feed dryer system 651

and 661,

including cyclones and scrubbers. and Swiss-Combi systems

Midwest Grain has or will construct.

ANSWER

Please provide all costs

entailed in the purchase, installation, modification,

maintenance and operation of the feed dryer systems

651

and

661, and the

Swiss Combi

systems, as well as

the dates

upon which

each such cost was incurred and the date

upon which

it was paid, or the installment schedule upon which it was paid..

ANSWER

Please provide

all information known

to the Respondent and/or

the

Respondent’s possession and control regarding all

emissions generated during the operation of

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2005

feed dryers 651

and

661

and

the Swiss-Combi system

currently in operation at-Midwest Grain.

ANSWER

Please provide all information

known to the Respondent and/or in its possession

and control regarding,

relating to or relevant to the actual and estimated emissions resulting

from fluidized

bed

boiler operations during

the period 1992 through 1994;

and

from operations

of the three gas

broilers and

gluten dryer referenced

in item 4 on the first page of a letter dated

November 6.

1995 addressed to Richard Jennings of

the Illinois EPA and authored by David

Sanborn of

Midwest Grain.

ANSWER

Please

provide the actual date upon which Respondent ceased operations of the

fluidized bed boiler.

ANSWER

Please provide all information known to the Respondent and/or

in its possession

and control

regarding the actual

PM emissions generated during the operation of feed dryer

651

and 661 during the period

1994 through the present

ANSWER

Please

provide all

information known

to the Respondent and/or in its possession

and

control regarding the date(s)

of operation of the feed dryer systems 651

and 661

and the

Swiss-Combi system

already in operation at Midwest Grain, beginning

1994 throughihe

present.

ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER

2005

ANSWER

10.

Please

provide all

information known

to the Respondent and/or in

its possession

and control regarding any consideration given to or any analysis or evaluation of wet

electrostatic precipitator(s) or regenerative thermal oxidizer(s) to

control PM emissions

generated by feed dryer systems 651

and 661

including, but not limited

to,

best available

control technology rBACT”) analysis and modeling

data consistent with federal Prevention of

Significant Deterioration (“PSD’) program requirements, actual andlor estimated

PM emissions

data and calculations, and draft andlor final construction and operating permit applications

ANSWER

11.

C—4lease provide

all information known

to the Respondent and/or in

its possession

and control

regarding the construction and

operation of feed dryer systems 651

and

661

and

the Swiss-Combi system~/~Ldir~emissions

testing of said equipment; tcaonstruction and

operation of air pollution control equipment to control PM emissions generated during operation

(q~

of feed dryer systems

651

and

661; and

r?lt$dëling

prescribed by federal Prevention of

Significant

Deterioration (“PSD’)

requirements.

ANSWER

12.

Please provide all information known to

the Respondent and/or in

its possession

and control regarding all factual issues pertinent to Complainant’s allegation that Respondent

constructed feed dryer systems

651 and 661

causing a significant net emission increase in

in excess of

25 tons

per year resulting

a major modification as

defined by

federal PSD

requirements without first applying for and

obtaining a construction permit granting PSD

ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER 1,2005

approval to construct feed dryer systems

651

and 661, conducting

a pre-construclion review,

and implementing

best available control technology (“BACT”).

ANSWER

13.

Please provide

all

information known to the Respondent and/or in its possession

and control

regarding all factual issues pertinent to Complainant’s allegation that Respondent

caused or allowed the emission of

PM generated during the operation of feed

dryers 651

and

661

in excess of

1.1

pounds per hour and 3.2 pounds per hour limits set forth within

construction permit numbers 93020061

and 93080045, respectively,

beginning 1994 through

the present.

ANSWER

14.

Pursuant to Illinois Supreme Court Rule 213(f),

please provide the name,

address and phone number of each

fact witness who will testify at trial and describe in detaiI-The

subject of each witness’s testimony.

With regard to each witness,

please provide the following

information:

His or her full

name, place

of employment, job title, current address and

telephone number

ANSWER

A detailed statement regarding the subject matter

on which

each witness is

expected

to testify.

ANSWER

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2005

State the dates on which you met or consulted with the witness.

ANSWER

Describe in detail the substance of all facts, assumptions, opinions, and

conclusions about which the witness is expected to testify.

ANSWER

Identify each document which support the substance of the facts or opinions

about which the witness is expected to testify.

ANSWER

Identify the information and documents provided to the witness for use in

this

matter.

ANSWER

Identify each document the witness has prepared and which summarizes the

facts or opinions about which the witness is expected

to testify and provide all

reports of the witness.

ANSWER

15.

Please identify documentation and/or written material of any kind

known

to the

Respondent and/or in the possession and control of the Respondent, generated by or relied

upon by witnesses identified in response to Complainant’s

interrogatory

submitted

pursuant

to Supreme Court Rule 213(f) pertinent to the subject matter of the witness’ testimony

ELECTRONIC FILING,

RECEIVED, CLERKS OFFICE, NOVEMBER

1, 2005

ANSWER

16.

Identify each and

every opinion witness or expert opinion witness with whom the

Respondent has communicated or consulted or whom Respondent expects to testify at hearing

in this

matter.

Pursuant to Illinois Supreme Court

Rule 213(f),

please provide the

name, job

title, address

and phone number of each

opinion witness who will offer any testimony and

state:

describe in

detail the anticipated

subject matter of the opinion witness’s

testimony;

ANSWER

describe in detail the conclusions and opinions of the opinion

witness and the

basis for such conclusions and

opinions;

ANSWER

describe in

detail the substance of

all facts and

assumptions that serve as the

basis of, or taken into account in,

the witness’ conclusions and/or opinions.

ANSWER

describe

in detail the qualifications of each opinion witness to provide the

anticipated

testimony;

ANSWER

identify all documents and other things that provide the basis for the person’s

opinions, or on which the person relied in developing

his or her opinions;

ELECTRONIC FILING,

RECEIVED,

CLERK’S OFFICE, NOVEMBER

2005

ANSWER

identify each document the expert has prepared and

which states

in full or

summarizes

the facts or opinions about which the witness

is expected to testify

and provide

all reports of the expert.

ANSWER

identify any and all occasions

on which the person has given opinion testimony in

deposition,

trial,

arbitration, mediation,

or other evidentiary proceeding;

ANSWER

identify

all occasions

on which the Respondent has retained

the person in the

past,

ANSWER

identify all documents that constitute, contain,

report,

or otherwise relate

to the

person’s opinions.

ANSWER

identify the information and

documents that were provided to the expert for use

this mailer.

ANSWER

17,

Identify all documents including, but not limited

to, treatises, articles, publications

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER 1,2005

orjournals

containing the opinions or conclusions of any expert witness

expectadto~

boutilized

by the Respondent at hearing,

or otherwise disclosed,

relative to the calculation of civil

penalties,

illegal profits, or economic benefit derived from non-compliance with federal or state

laws and regulations.

ANSWER

18.

Identify all documents utilized or relied upon in responding to Complainant’s first-

set of interrogatories.

ANSWER

19.

Please provide all information known to the Respondent and/or

in its possession-

and

control regarding applicable business/financial

standards employed

within your industry

and

utilized by the Respondent at the time

of the selection

of dryer systems

651

and

661

for

installation at Midwest Grain

in its evaluation and analysis of the reasonableness of the vendor

selection

and the reasonableness of and justification for the technology selection.

ANSWER

20.

Please provide

all

information known

to the Respondent and/or

in its possession

and control regarding any and

all analyses or evaluations conducted by the Respondent at tha

time of the selection of dryer systems

651

and

661

for installation at Midwest Grain -regardirig

the reasonableness of the

selection of the vendor who supplied dryer systems

651 and

661

and the reasonableness of and justification for the selection of the technology represented by

dryer systems 651

and 661.

ANSWER

ELECTRONIC

FILING,

RECEIVED, CLERKS

OFFICE, NOVEMBER

2005

21.

Please identify all individuals eithen in

the employ of Respondent Midwest Grain,

or outside the employment of Midwest Grain who

had or have knowledge of any and all

analyses or evaluations conducted

by the Respondent at the time of the selection of dryer

systems 651

and 661

for installation at Midwest Grain

regarding the reasonableness of the

selection of the vendor who supplied dryer systems 651

and 661 and

the reasonableness of

and justification

for the selection of the technology represented by dryer systems

651

and 661

ANSWER

22.

Please

provide all information that served as

the basis for Robert Fuhrman’s

statement:

MGP apparently engaged a reputable

equipment manufacturer that guaranteed

equipment performance within permit limits,

MGP is entitled

to receive credit for its good faith

effort

to comply.”

ANSWER

23.

Please provide

all

information pertinent to any and all analysis

conducted by

Midwest Grain or its surety company relative

to the financial stability of the vendor(s) who

supplied dryer systems

651

and 661,

and

particular with regard to its/their ability to

adequately support any guarantee or warranty of the systems.

ANSWER

24.

Please indicate whether and what kind of offer security and

performance security

Respondent Midwest Grain required of the vendor(s) who supplied dryer systems

651 and

661,

and all components of the systems and air pollution control technology applied in

the systems

i.e.

surety.

performance bonding, other bonding/insurance,

performance/progress payments, or

ELECTRONIC FILING,

RECEIVED, CLERKS OFFICE,

NOVEMBER 1,2005

retainage or other form of security.

ANSWER

25.

Please provide all information pertinent to Respondent Midwest Grain’s

determination that the following

payment schedule

for the vendor who supplied dryer systems

£51

and

661 was reasonable.

25 percent upon execution

of Agreement

10 percent upon receipt of general equipment layout drawings for approval

percent upon delivery of partial and

unit shipments

05 percent upon start-up,

not to exceed 90 days after last delivery.

Please include the basis for establishing this schedule and information as to wha proposedit.

all

discussions pertinent to this schedule, who reviewed

it and approved

it by Respondent

Midwest Grain,

and whether Midwest had

utilized similar payment schedules underother

contracts or agreements, and whether Respondent Midwest Grain believes it

to be a

reasonable schedule today.

ANSWER

26.

Please provide

all

information pertinent to Respondent Midwest Grains decision

not to

modify its existing construction permit dated

December

1995 for the feed dryer systems

651

and 661.

ANSWER

27.

Please indicate the weighted average cost of capital (MWACC”) Respondent

believes

is applicable to itself,

and

all other rates and

factors that might be pertinent in an

ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE,

NOVEMBER

1, 2005

economic benefit calculation prepared for litigation

to be presented at hearing,

the basis for

selection of said rates and

factors,

and the actual

amounts and

numbers assigned in

Respondent’s calculation of economic benefit.

ANSWER

28.

the Stipulation and Proposal for Settlement, entered

in the matter of

People

Midwest Grain,

PCB 95-5,

it is evident the Midwest Grain agreed

to cessation of operations of

the fluidized

bed

combustion boiler by the end of calendar year

1994 as a term and condition of

the settlement of a case wherein the State’s

contended that the fluidized

bed combustion boiler

could not meet percent reduction limits contained in the operating permit and thereby did

not

achieve

BACT, and thus failed to meet Prevention of Significant Deterioration

(“PSO”)

requirements.

In the instant matter, it is the State’s contention

that Respondent Midwest Grain

again

installed equipment that failed

to meet BACT,

and thus violated PSD requirements.

Please provide all information known

to the Respondent and/or

in its control and possession

pertinent and

relevant to the contention

that the instant case represents a repeated violation of

operating

permit emission

limits and PSD

requirements.

ANSWER

29.

Please identify all

persons who assisted with the preparation of your responses

these Interrogatories, whom you or your attorney(s) or other

agents consulted in the

preparation of your responses to these interrogatories, and/or who otherwise provided

any

information used

in the preparation of your responses to these Interrogatories, and indicate the

Interrogatories with which each such person assisted or was

consulted or provided information.

ANSWER

ELECTRONIC FILING,

RECEIVED, CLERKS OFFICE, NOVEMBER 1,2005

Respectfully Submitted,

PEOPLE

OF THE STATE OF ILLINOIS,

ex.

rel.

LISA MADIGAN, Attorney General

of the

State of Illinois

MATTHEW

DUNN, Chief

Environmental

Enforcement/Asbestos

Litigation Division

BY: C2...

,J41E

MCBRIDE

Assistant Attorney General

500 South Second Street

Environmental

Bureau

Springfield, Illinois 62706

217/782-9031

Dated:

7/t/t

ELECTRONIC FILING, RECEIVED,

CLERK’S OFFICE,

NOVEMBER

1, 2005

BEFORE THE ILLINOIS

POLLUTION CONTROL BOARD

TAZEWELL COUNTY,

ILLINOIS

PEOPLE OF

THE STATE OF ILLINOIS,

Complainant,

)

PCB No.

97-179

)

MIDWEST GRAIN PRODUCTS

ILLINOIS,

INC., an Illinois corporation,

Respondent.

COMPLAINANT’S FIRST SET OF

REQUESTS FOR PRODUCTION

TO RESPONDENT

MIDWEST GRAIN PRODUCTS

OF ILLINOIS,

INC.

NOW

COMES Complainant,

People of the State of

Illinois, ~

~çj Lisa

Madigan,

Attorney General of the State of Illinois, and propounds the following requests for production

Respondent, MIDWEST GRAIN

PRODUCTS OF ILLINOIS,

INC.

(“Respondent”),

to be

answered

in accordance with the Illinois Code of Civil Procedure, the Illinois Supreme Court

Rules on

Civil Proceedings in the Trial Court,

and the following instructions and

definitions,

within 28 days of the

date of service hereof.

INSTRUCTIONS

(a)

Please

produce all

documents requested herein

for copying at the offices of the

Attorney General for the State of Illinois,

500 South

Second Street,

Springfield, Illinois. within 28

days of the date of service of these Requests (or Production, or provide copies of the

documents requested herein

to counsel for the Complainant by that date.

(b)

If any document was

previously

in your possession or subject to your custody or

control that these Requests

(or Production would require you to

produce, but is no longer in

your possession

or subject to your custody or control,

or was known

to you, but is no longer in

existence, please state what disposition was made of it or what became of it.

(c)

If any document is

withheld from production hereunder on the basis of a

daim of

ELECTRONIC FILING,

RECEIVED, CLERKS OFFICE,

NOVEMBER 1,2005

privilege or otherwise, please

identify each such document and

the grounds upon which

its

production

is being withheld.

(d)

You are

reminded of your duty under Illinois

Supreme Court Rule 214

seasonably supplement any responses to these Requests for

Production to theextenLthat

documents, objects or tangible things

responsive

to these Requests

for Production come into

your possession or control or become known

to you subsequent

to your responsehereto.

(e)

You are further reminded of your duty under Illinois Supreme Court Rule 214

produce

the requested documents as

they are kept in

the usual

course

of busines&or

organized

and labeled to correspond with the categories in the Request,

and tupruduca

afl.

retrievable

information in computer storage

in printed form.

(f)

If you are unable or refuse to answer any Request for Production completely for

any reason,

including, but not limited to, because

of a daim of privilege,

pleasaso state,

answer the Request for Production

to the extent possible, stating whatever knowledge or

information you have

concerning the portion

of the Request for Production whichyoailo

answer,

and set forth the

reason for your inability or refusal

to answer more fuUy~

DEFINITIONS

As used in these

Requests for Production, the terms listed below are defined as-foHows:

(a)

tocument” or “documents” means any of the following of which

you have

knowledge or which are

now

or were formerly in your actual or constructive ~ossess

on, custody

or control:

any writing of any kind, including originals and

all nonidentical copies

(whether

different from the originals by

reason of any notation made on such copies

or otheite).

including without limitation maps, drawings. sketches, blueprints, aerial photographs,

log books,

lab

reports, chain-of-custody forms,

weather forecasts, correspondence, memoranda,

notes,

desk calendars, diaries,

statistics, checks, invoices,

statements, receipts, retums,warraniies,

ELECTRONIC FILING, RECEIVED,

CLERKS OFFICE,

NOVEMBER

2005

guarantees,

summaries, pamphlets, books, prospectuses, interoffice and intraoffice

communications, offers,

notations of any sort of conversations, telephone

calls, meetings or

other communications, bulletins, magazines,

publications,

printed

matter, photographs,

computer printouts, teletypes, telefax,

invoices, worksheets and

all

drafts, alterations,

modifications, changes

and amendments to any of the foregoing;

any spreadsheets, database,

correspondence, e-mail messages,

or other information of any

kind contained

in any computer

or other electronic information storage system; and any audiotapes, videotapes, tape

recordings,

transcripts, or graphic or oral records or representations of any kind.

(b)

“Possession, custody or control” includes thejoint or several

possession,

custody or control not only by the person to whom these

Requests for Production are

addressed, but also

the joint or several

possession,

custody or control by each or any other

person acting or purporting to act on behalf of the

person, whether as

employee, contractor,

attorney,

accountant, agent, sponsor,

spokesman, or otherwise.

(c)

“Relates to” means supports, evidences, describes, mentions,

refers to,

contradicts or comprises.

(d)

“Person” means any natural person, firm,

corporation, partnership,

proprietorship, joint venture, organization, group of natural

persons, or other association

separately identifiable whether or not such association

has a separatejuristic existence in its

own right.

(e)

“You”,

“Respondent Midwest Grain”, or “Midwest Grain”,

means Respondent

Midwest Grain

Products of Illinois,

Inc., including, but not limited to. any employees, attorneys,

independent contractors, or other agents of any kind of Respondent Midwest Grain or any

agency, branch,

division, orother department thereof.

“Complaint” means Complainant’s Complaint filed

on April 7,

1997.

ELECTRONIC

FILING,

RECEIVED, CLERKS OFFICE,

NOVEMBER 1,2005

(g)

“Swiss-Combi systems” refers

to the Swiss-Combi currently

in operation at the

Midwest facility,

and

the new Swiss-Combi to be constructed

(h)

“Feed dryer systems

651

and 661” are the feed dryers installed

at Respondent

Midwest Grain’s facility under

Illinois EPA Construction Permits #93020061

andt93OBO04&

REQUESTS

FOR PRODUCTION

Please

produce any and

all documents relating to financing,

the source of capital

utilized as well

as the actual purchase, installation and

modification of feed dryer systems

651

and 661, including

cyclones and

scrubbers utilized

to control particulate matter_(tPM~),andthe

Swiss-Combi systems.

These documents

may include, but not be limited

to, communications

and internal

memoranda regarding the source of financing

for and methods and

procedures

utilized to

procure services and equipment relative to the

purchase, installationsrmcidiflcation

of each;

loan documentation;

loan applications; documentation concerning any internal

external

transaction undertaken

to facilitate financing dryers 651

and 661

and tIm-Swiss~Combi

systems;

purchase agreements; documents concerning the order and requisition of each

system and/or components; all orders and for contracts;

letter agreements; agreemeniwuf any

nature; status reports; correspondence;

invoices;

bills of lading;

delivery documentation;

memoranda, and notes, and responsive documents concerning the source of funding may

include, but not be limited

to, documents

concerning use of cash reserves, bonds issued

stock sold.

Please

provide any and all documents relating to costs associated with the

purchase, installation,

modification, maintenance

and operation of the feed dryer systems

651

and 661, and

the Swiss

Combi systems.

Please

provide any and

all

documents relevant to all

emissions generated during

ELECTRONIC

FILING,

RECEIVED, CLERKS

OFFICE, NOVEMBER

2005

the operation

of feed dryers 651

and 661

and the Swiss-Combi system currently in operation at

Midwest Grain.

Please produce all corporate financial records for Midwest Grain Products of

Illinois,

Inc.

and MGP Ingredients of Illinois, Inc.

for the years

1994 through the present,

including

but not limited to annual corporate financial reports; annual

reports to stockholders;

certified auditor statements; income statements;

balance sheets; statements of cash flows;

statements of stockholders’

equity; memoranda

generated by MOP or the Securities and

Exchange Commission

(10-K statements) regarding or relating

to annual sales of alcohol,

ethanol, distillers grain

and distillers feed, annual profitresulting from alcohol, ethanol, distillers

grain

and distillers feed sales

before taxes; gross profit,

net profit,

net after tax profit margin,

and net profit resulting from alcohol,

distillers grain and distillers feed sales after taxes.

Please produce all records and documents concerning or containing

calculations, formulas and data regarding actual

and estimated emissions resulting from

fluidized bed

boiler operations during

the period

1992 through June

1994;

and from operations

of the three gas

broilers and gluten dryer referenced

in item 4

on the

first page of a letter dated

November 6,

1995 addressed

to Richard

Jennings of

the Illinois EPA and

authored by David

Sanbom of Midwest Grain.

Please produce all documents, including any documents conceming or

containing calculations,

formulas, test data and

notes, relevant to

actual

PM emissions

generated during the operation of feed dryer systems

651

and 661

during the period

1994

through

the present.

Please produce all records and documents concerning the date(s) of operation

of the feed dryer systems

651

and

661

and the Swiss-Combi system already in operation at

Midwest Grain, beginning

1994 through the present.

ELECTRONIC FILING,

RECEIVED, CLERKS

OFFICE,

NOVEMBER 1,2005

Please

produce all

communication, including

but not limited to emails, written

hard

copy correspondence, facsimile transmittals and notes or logs of phone conversations,

between representatives

or employees of Midwest Grain and the

Illinois Environmental

Protection Agency relative to proposed construction and operation of wet electrostatic-

precipitator(s) or regenerative thermal oxidizer(s) to control PM emissions generated by feed

dryer systems 651

and 661.

Please produce all communication, including

but not limited to e-mails, written

hard copy correspondence, facsimile transmittals, drafts, reports, analysis, documentation of

any kind and

notes or logs

of phone conversations, between representatives or emptoyseaof

Midwest Grain and the

Illinois Environmental Protection Agency relative to the construction and

operation of feed dryer systems

651

and 661

and the Swiss-Combi systems, including

emissions testing

of said equipment; the construction

and operation of air pollution control

equipment

to control PM emissions generated during operation of feed dryer systems

651

and

661; and

modeling prescribed by federal

Prevention of Significant

Deterioration (UPSD)

requirements.

10.

Please produce all documents and

communications,

including but not limited

e-mails,

written hard copy correspondence, pre-construction

reviews,

post-construction-reviews,

emissions data and data analysis, facsimile transmittals and notes or logs

of phone

conversations,

relevant to all factual issues pertinent to Complainant’s

allegation that

Respondent constructed feed dryer systems

651

and 661

causing

a significant net emission

increase in

in excess of 25 tons

per year

resulting in a

major modification as defined by

federal P50

requirements without first applying for and obtaining a construction permit granting

PSO

approval to construct feed dryer systems

651

and 661,

conducting a pre-construction

review, and implemerting best available control

technology (“BACT”).

ELECTRONIC FILING,

RECEIVED, CLERKS OFFICE,

NOVEMBER 1,2005

Ii.

Please produce all documents and communications, including

but not limited

e-mails, written hard

copy correspondence, pre-construction

reviews,

post-construction

reviews,

emissions data and data analysis, facsimile transmittals and

notes or togs of phone

conversations,

relevant to all factual issues pertinent to Complainant’s allegation that

Respondent caused or allowed the emission of PM generated during the operation of feed

dryers 651

and 661

in excess of

1.1

pounds per hour and

3.2 pounds per hour set forth within

construction permit numbers 93020061

and 93080045, respectively, beginning

1994 through

the present.

12.

Please

produce all written materials known

to the Respondent and/or

in the

possession and control

of the Respondent,

generated by or relied upon by fact witnesses

identified in response to Complainant’s interrogatory

14 and

15 submitted pursuant to

Supreme

Court Rule 213(f)

pertinent to the subject matter of the witness’ testimony.

13.

Please

produce all documentation

identified

response to Complainant’s

interrogatory

16 submitted pursuant to Supreme Court Rule 213(1).

14.

Produce all documents including, but not limited to,

treatises, articles,

publications or joumals containing the opinions or conclusions of any expert witness expected

be utilized

by the Respondent at hearing, or otherwise disclosed,

relative to the calculation of

civil penalties,

illegal profits, or economic benefit derived from non-compliance with federal or

state laws and regulations.

15.

Produce all documents identified

Respondent in any

response to any of

Complainant’s first set of interrogatories.

16.

Please produce all documents utilized

or relied upon in responding to

Complainant’s first set of interrogatories.

17.

Please produce all calculations and documents containing and pertinent to any

ELECTRONIC FILING,

RECEIVED, CLERKS

OFFICE, NOVEMBER 1,2005

and all analyses or evaluations conducted by

the Respondent

at the time of the selection of

dryer systems

651

and

661 for installation at Midwest Grain regarding the reasonableness of

the

selection

of the vendorwho supplied

dryer systems

651

and 661,

including the cyclones

and scrubbers, and the reasonableness of and justification for the selection of the technology

represented by dryer systems

651

and 661, including the cyclones and scrubbers.

18.

Please produce all calculations and documents containing any pertinent

applicable business/financial standards employed within your industry

and

utilizecthy:the

Respondent at the time of the selection of dryer systems 651 and 661

for installation at Midwest

Grain in

its evaluation and analysis of the reasonableness of the vendor selection-and-the

reasonableness of and justification for the technology selection.

19.

Please produce

all documentation and correspondence pertinent to or

exchanged between Respondent Midwest Grain and the vendor(s) (including

b~st.gctlimitod-4a

Productization,

Inc. and CMI Corp)

for the feed dryer systems

661

and

651

and

all

components

of that system,

including

the cyclones

and primary and

secondary scrubbers,

including

all

documents regarding the offer and

purchase of the equipment,

including any warranty involved

in the transaction,

the design, construction and

installation of the equipment,

all documentation

concerning the testing

of and performance of the equipment, all documentation regarding

modification of the equipment,

all documentation

regarding the failure of the equipment

perform and

all

documentation generated

regarding any litigation or threat of litigation1 or

response to threat of litigation between Midwest Grain and the vendor(s).

20.

Please produce all documentation and

correspondence regarding all modeling

contemplated, initiated and/or performed with regard

to issues pertinent to this lawsuit,

including

all inputs to the

modeling.

21.

Please provide documentation regarding all alternative air pollution control

ELECTRONIC FILING, RECEIVED, CLERKS

OFFICE,

NOVEMBER 1,2005

equipment considered relative to

the performance and

function of the feed dryer systems 651

and 661,

all

evaluation and analysis conducted regarding

said alternative

pollution control

equipment, and the cost of all evaluation, analysis and

permit applications for any alternative

pollution control equipment.

22.

Please

provide all documentation regarding any and

all repairs and modifications

made to

feed dryer systems

651

and 661.

23.

Please provide all documentation regarding any and all emissions

testing and

sampling

conducted

regarding feed dryer systems

651

and 661.

24-

Please

provide all documentation pertinent to the analysis and evaluation of feed

dryer systems

651

and 661

pertinent to air pollution control.

25.

Please provide

all documentation pertinent to Respondent Midwest Grain’s

evaluation and analysis conducted

in response

to alleged violations of air pollution, state permit

requirements, and federal PSO program requirements relevant to feed

dryer systems

651 and

661.

26.

Please

provide

all documentation relevant to the evaluation of alternative

technologies that resulted in the selection of all equipment and components utilized in feed

dryer systems

651

and 661.

27.

Please

provide

all documentation,

including all correspondence

and

e-mails,

pertinent to all communications with

the Illinois EPA regarding the alleged violations or air

pollution, state

permit requirements, federal PSI) program requirements, and all work

conducted

pertinent to those allegations, including equipment analysis, testing, modification,

evaluation of alternative technologies,

modeling, permit applications and

any and

all other

compliance actions.

28.

Please provide any and all documentation relevant to, regarding or pertinent to

ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER

1,2005

all draft permit applications and permit applications, and responses to

permit apptic-ationsjor

the construction and/or operation of air pollution control technology for feed dryet systerns8Sl

and 661, alternative

technology to

feed dryer systems

651

and

661, and the modification of

feed dryer systems

651

and 661.

Respectfully Submitted,

PEOPLE OF THE STATE OF ILLINOIS,

ex. rel

LISA MADIGAN, Attorney General

of the State of Illinois

MATTHEW J.

DUNN,

Chief

Environmental EnforcementlAsbestos

Litigation

Division

BY:

CTh~

rt~

J,AKE

MCBRIDE

Assistant Attorney General

500 South Second Street

Environmental Bureau

Springfield,

Illinois 62706

217/782-9031

Dated:

7/7/0

ELECTRONIC FILING,

RECEIVED, CLERKS OFFICE,

NOVEMBER 1,

2005

190

Catondelot

Plaza.

Suite 600

USC

ôc

ST.

Louis.

MissourI

63105-3441

Eppenberger,

LLC

Fag

Attorneys

and

Counselors at

Law

www.husch.com

314.480.1524

direct dial

September 20, 2005

Jane McBride

Assistant Attorney General

Office ofthe AttorneyGeneral

500 South Second St.

Springfield, IL 62706

Re:

People

v. MGP Ingredients ofIllinois,

Inc.

PCB No. 97-179

Dear Ms. McBride:

Pursuant to our clients’ efforts to comply with the Discovery process so

this

matter may be brought to a conclusion and Rule 201(k) of the

Illinois Supreme Court

Rules, we have reviewed your various Interrogatories and Request for Document

Production with the appropriate MOP representatives.

During that

review, we

have

identified issues with Interrogatories 4, 9,

11,

26,

and 28.

In an effort to attempt to

informally resolve those

issues we see

with the Interrogatory (and in any concomitant or

related Request for Documents), I will outline ourconcerns in an effort to informally

resolve these Discovery issues.

Interrogatory No. 4fDocument R&iuest No. 2)

is virtually impossible for us to”..

provide all costs entailed in the purchase,

installation, modification, maintenance and operation ofthe

feed dryer systems

651

and

66!, and the Swiss Combi system, as well as the dates upon which each suchcost

was

incurred and the date upon which it was paid, or installment schedule upon which it was

paid.”

This request encompasses virtually every document generated by operational

activities at MGP and the preponderance ofour financial documentation.

In addition,

there are several practical issues related to this request.

First, MGP does not have

maintenance documentation for hours worked prior to

1999.

After

1999, we estimate the

mechanic work orders by themselves encompass of several hundred instances per year.

In order to find these documents, and to satis~’

your Interrogatory and Document Request

we would have to first find the files related to the dryers, then review the maintenance

EXHIBIT

ST. LOUIS

DOWNTOWN

Sr.

LOuis

KANSAS CITY

‘

JEFFERSON

CITY

‘

SPRINGFIELD

PEORIA

2151639.01

cHArTAN000A

‘

DOWNTOWN

MEMPHIS~EAST

MEMPHIS

•

NASHVItLE

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER 1,2005

Husch

Eppenberger,

LLC

Jane McBride

Assistant Attorney General

September 20, 2005

Page: 2

files; find those

files related to the dryers; and, pull the

materials used in each work order

(if they are apparent)

and determine the associated costs from financial data and

information.

Moreover, we cannot assure the accuracy of this infonnation, so the

documentation you would

receive would, at best, be an estimate.

This effort in our

estimation would require one person, working hill-time at least one month to find, collect

and produce.

In addition, all

the documentation relating to the operational costs of the dryers, including

all operator time sheets, gas readings and expense documents;

along with management

notes including

internal MGP meetings and those with the

IEPA would have to be found

and collected.

We estimate this would take an additional person, working full-time at

least 3

‘/2

weeks to assemble this

information.

We would

like to discuss how we

might

narrow or focus this request to obtain the documents or information necessary for your

purpose.

Our client has committed to obtaining, collecting and providing all the costs entailed in

the purchase, installation and modification offeed dryer system 651

and 661.

We might,

however, require an additional week or two from the current production date to

accomplish this task.

None ofthese estimates

include the identification, collection and production of

information and documents related to the Swiss

Combi dryer.

We believe information

related to the Swiss Combi is not relevant for Discovery purposes

in this lawsuit.

would welcome the opportunity to discuss your theory or theories why we should

produce documentation related to the

Swiss Combi system.

Interrosatory No. 9 (Document Request No. 7)

To comply with your request that we

“.

provide all information known to the

Respondent and/or in

its possession and control regardingthe dates ofoperationof feed

dryer system 651

and 661

beginning in

1994 through the present”, would require that

find and copy information from three shifts per thy, 365 days per year, for

years.

This amounts to over

12,000 discreet events and an unknown (at this point) number of

pages.

In addition, we currently possess only related documents from 1999 to the present

and have not yet located any logs prior to that date.

We have two suggestions how to handle/narrow/meet your requests.

First, is for you or

your representatives to come

to the MGP facility in Pekin whereupon we will provide

you or your representative access to those logs we currently possess and those we are

2151639.01

ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER

2005

Husch

Eppenberger, iic

Jane McBride

Assistant

Attorney General

September

20, 2005

Page: 3

able to locate.

Subject to reasonable restrictions (e.g., business hours and space), we

could arrange for this review at your earliest convenience.

The second suggestion is that

you

narrow this

Interrogatory and Document Request to information related to the hours

of operation ofdryer

651

and/or 661

on a yearly basis.

We can readily provide this

information to you and represent that it accurately depicts the dryers’ operations.

Again, the Swiss

Combi system was not involved

in this analysis.

Interrogatory No.

(Document Request No. 7)

This

Interrogatory, like Interrogatory No. 9,

is quite broad;

“,...

provide all

information known.

or in its possession and control regarding the construction and

operation of feed dryer systems

It also appears to actually subsume the request of

Interrogatory No.

operation yj~.

construction and operation

and then adds specific

additional requests for emissions testing; construction and operation ofair pollution

control equipment to control PM emissions (we are not sure what this means); and

“modeling” (which appear to be discreet requests in and of themselves).

This request, like No. 9 would require nearly two months

for document collection and

production by itself

would

like to discuss how we might restructure this request and

coordinate production with Interrogatory No. 9.

Again, the Swiss Combi system was not involved in this analysis.

Interrogatory No. 26

We find this request that we “prove a negative” confusing.

It does, however,

appear to ask for the inverse ofwhat MOP seeks in our Interrogatories

10,

21, 26, and 27

and our Request

for Admissions

thru 4.

Accordingly, I think we should be able,

through meaningful discussions,

be able to resolve this request.

Interrogatory No. 28

Setting aside

the conclusory statements contained

in the first portion ofthe

Interrogatory, and the improper use ofthe Stipulation and Proposal for Settlement, the

fact is that this request

is extraordinarily broad; how does one show that a repeated

violation is caused by the

installation ofequipment that would only fail?

En short, we

need to discuss either a narrowing or clarification ofthis Interrogatory.

2151639.01

ELECTRONIC FILING, RECEIVED,

CLERK’S OFFICE, NOVEMBER 1,2005

Husch

Eppenberger,

LLC

Jane McBride

Assistant Attorney General

September 20, 2005

Page: 4

I think we can come relatively close to the current production/Discovery schedule,

if we can resolve the issues

have outlined for you with regard to

these five

Interrogatories.

Please contact me at your eaçliest convenience

to discuss these

2151639.01

ELECTRONIC

FILING,

RECEIVED, CLERKS

OFFICE, NOVEMBER

2005

Husch

Eppenberger,

LLC

A ‘torn

ryE

it’ll

(:au

usc/c

U it

l.a

‘p

I)IRECI DIAl.

(314) -*80-1524

Patrick.EIa~Ib

ii4ti.sch.

gin,,

190 Corondelot Plow. SuIte 600

St.

Louis.

Missouli

63105-3441

314460.1

Fox

311480.1505

wwW

husoft

Corn

September 26, 2005

VIA

FACSIMILE AND REGULAR MAIL

Jane McBride, Esq.

Assistant Attorney General

Office ofthe Attorney General

500 South Second St.

Springfield,

IL 62706

Re:

People

is.

MG? ingredients of Illinois. Inc.

PCB No. 97-179

Dear

Ms. McBride:

Other discovery issues notwithstanding,

we have not received either your response

or any contact

from you

about

the discovery issues, and requests

for coordination we

raised concerning

the Complainant’s Interrogatories and

Request for Production.

It would

be most helpful to us ifwe received a

production efforts.

PMF:cll

Please contact us at your earliest convenience.

response so we might continue our

LOOPS

DOWNTOWN

SI-

LOUIS

KANSAS

CITY

JU(LPSON

CITY

SPRINGFIELD

P?OTIIA

CHATTANOOGA

DOWNTOWN

MEMPHIS

EAST

MEMPHIS

NASHVILLE

215578001

ELECTRONIC

FILING,

RECEIVED,

CLERK’S OFFICE,

NOVEMBER 1,2005

Husch&

Eppenberger, ac

As,criuey: ..,l

Cewnirler,

Law

3 14

480. I$24 dictadiii

Pna F~t~

190 corondelet Plaza.

SuIte 60)

St. totS.

Mluou.I

63T05-3441

314.480.150)

Fax

314.480.1505

www.t,u,ch.corn

October

2005

VIA FACSIMILE AND REGULAR MAIL

Jane McBride, Esq.

Assistant Attorney

General

Office ofthe Attorney General

500

South Second St.

Springfield,

IL 62706

Re:

People

is.

MGP Ingredients oflihinois. Inc.

PCB No. 97-179

Dear Ms. McBride:

I write again to ask you

coordinate

with us

about

Discovery issues in this case.

Attached is a photocopy of my September 20, 2005 letter, which outlined those

Discovery

issues related

to your

Interrogatories

and Requestfor Documents.

Our client

continues

to meet its Discovery

obligations

and your response would

greatly facilitate those efforts.

PMF:cll

Please contact us at your earliest convenience.

ST.

LOUIS

•

DOWNTOWN

ST.

L0U5

KANSAS CITY

•

JEFFERSON

CITY-

SPRINGEPELD

•

PEORIA

CHATTANOOGA

•

DOWNTOWN

MEMPH5

(j~5~

MEMPHIS

NASHVILLE

EXHIBIT

I1n~J

M. Flachs

2164181.0)

ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE,

NOVEMBER

2005

RECEIVED

CLERK’S

OFFICE

ILLINOIS POLLUTION CONTROL BOARD

OCT

2115

October 12, 2005

STATE

ILLINOIS

PEOPLE OF THE STATE OF

ILLINOIS,

)

POlIutlOfl Control Bo&d

)

Complainant,

)

PCB

97-179

)

(Enforcement

Air)

MIDWEST GRAIN

PRODUCTS OF

)

ILLINOIS, INC.

)

Respondent.

)

HEARiNG OFFICER ORDER

This order addresses issues arising

from the amended first set of interrogatorics to the

People ofthe State of Illinois (People)

filed on July 21,

2005 by MOP Ingredients ofIllinois,

Inc.

(MOP).

On September 9,

2005, the People filed a motion

to strike MGP’s amended first

set of

interrogatories, or, in the alternative, for protective order limiting the number of interrogatories

to prevent undue expense and harassment.

MOP

filed

its response in opposition on

September

21, 2005.

October

II, 2005, the

People filed areply to MOP’s

response.

For the reasons set forth below, the bearing officer finds that MOP

has

exceeded the

maximum allowable interrogatories because several questions seek too much information to be

deemed a single interrogatory.

Additionally, this order finds that other interrogatories

are

overly

broad, duplicative,or

unclear

alleged by the People.

Rather than striking individual

interrogatones, the hearing officer strikes MOP’s

amended

first set of interrogatories

its

entirety.

This

leaves to MOP the discretion to hone its

interrogatories

and determine which to

forego asking.

The hearingofficcr grants MGP 30 days

from

the date of this order to serve a

second amended set of

interrogatories, and

the People shall have 30 days to respond.

BACKGROUND

Respondent MOP operates a facility in Pekin,

Tazewell County, that produces ethyl

alcohol, anhydrous fuel alcohol, wheat gluten and

distiller’s feed.

1993, MOP obtained a

construction permit to replace two existing feed dryers.

The permit limited particulate matter

(PM) emissions to 12 pounds

per

hour.

Emissions within these limits do not trigger the

requirements for a Prevention of Significant

Deterioration (PSD) permit.

The People’s four-count April

1997 complaint charges MOP with

violations ofPSD requirements in failing to complete a Best Available Control

Technology (BACT) analysis,

obtain

a PSD constructionpennit,

and install

a BACT

system;

air

pollution by discharge of PM in excess of permit limitations;

ELECTRONIC FILING,

RECEIVED, CLERKS

OFFICE, NOVEMBER 1,2005

various permit

violations

including excess particulate emissions,

failure to operate

secondary scrubbers, deviation from approved plans without supplemental permit,

and

failure to

modi& construction permit;

operation ofdryers #651

and

#661

without permit.

More specifically, the complaint alleges that stack testing on one ofthe dryers int995

indicated actual emissions of 17.1

pounds per

hour.

The inspector from the Illinois

Environmental Protection

Agency (Agency) determined that MOP had constructed a major

modification without a PSD

permit and

BACT system.

The complaint further alleges that,

because MOP

has

the potential to release PM emissions that exceed 25

tons

per year, MOP

is a

“major stationary source” subject to PSD regulations.

In its answer filed on May

1997, MOP denied committing the alleged violations, and

asserted four affirmative defenses.

On August

21,

1997, the Board found that only

two

of these

were

valid defenses:

that due to the discontinuance of its fluidized bed coal boiler in

1994,

MOP

was

longer a “major stationary

source”

subject to PSD regulations;

and

2) that MOP

was

in compliance with a compliance commitment agreement, so that the complaint

was

improper under Section

3 1(a) of the Environmental Protection Act (Act),

as amended

and

effective

August

1,1996.

415

ILCS 5/31(a).

March

17, 2005, the parties reported to the hearing officer that settlement negotiations

had reached an impasse, and

a discovery schedule was

established.

RELEVANT PROCEDURAL RULES

Section

101.616 of the Board’s procedural rules entitled “Discovery” provides in

pertinent

part

For purposes of discovery, the Board may look to the Code of Civil Procedure and

the Supreme Court Rules

for guidance where the Board’s

procedural

rules

are

silent.

All relevant information and

information calculated to

lead

to relevant

information is discoverable.

.35

III. Adm. Code

101 .616(a).

Section

101.620(a) of the Board’s procedural rules entitled “Interrogatories” provides in

pertinent part that

“unless

ordered otherwise by the hearing officer, a party may serve a

maximum of 30 written interrogatories, including subparts, on any otherparty.”

III. Adm.

Code 101.616(a).

RESPONDENT’S AMENDED FIRST SET OF INTERROGATORIES

For administrative economy, this order will not repeat or discuss each ofthe parties’

arguments in detail.

Moreover, as they

are

irrelevant to

this enforcement action, the parties’

arguments

regarding MOP‘s

request for information from the Agency under

the Freedom of

Information Act are

not considered here.

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2005

general, thePeople object to MOP’s amended first set of interrogatories on the

grounds that the interrogatories, including subparts, “are too numerous i.e.

exceed the allowable

limit of30 by at least 23..

.duplicitous.

request information that

is not relevant and beyond

the

time period alleged within the complaint, or are so ambiguous as to prevent the People from

responding.

.are

a form ofharassment.

and

a broad

fishing expedition” that will require the

People to

review a very large amount of information, causing undue

expense in time and effort.

(Motion at 4, part

11).

Additionally, the People assert

that interrogatory numbers

7, 8,

11, and

19 request information that does not relate to one primary question.

In response,

MOP argues that its interrogatories are properly formatted and

are within the

scope ofdiscovery.

As to the “subpart as separate interrogatory” issue, MOP states that the

committee comments concerning Supreme Court rule 213

are silent.

Looking to the Federal

Rules of Civil Procedure,

MOP cites consensus in federal case law that interrogatory subparts are

counted as part ofone interrogatory if the subparts elicit details that are common

to the theme of

the primary question.

(Kendall v.

OES Exposition

Sen’., Inc.,

1997 U.S. Dist. Lexis

15827;

Swaclthammer v. Sprint Corp. PCS. 225 F.R.D. 658, 664-65 (D. Kan. 2004); Banks v. Office of

the Senate Sergeant-at-Arms,

222 F.R.D.

10-Il (D.

D.C.

2004)).

Response at 4-6.

luterrogatories 1-6

The first six

interrogatories request information about the individuals who are assisting

the People with this case, and witnesses who will testi~’

at hearing.

The hearing officer finds

that these requests are not unduly burdensome.

Each ofthese intenogatories, including subparts,

counts as one request.

lnterroeatory 7

The primary question in interrogatory 7

is whether the facility is

a “major stationary

source.”

MOP has asserted as an affirmative defense that the shutdown ofthe fluidized bed coal

boiler in

1994 meant that the facility was no longer a major stationary source, thus PSD program

requirements were no longer applicable.

Interrogatory

7 asks the People to

identify all equipment, processes, operations and

fugitive emissions which had the potential to emit more than 25 tons of PM per year from 1989

to present.

Each subsection further requests

a significant amount ofinformation.

ThePeople assert that the complaint pertains only to the major modification ofthetwo

feed dryers constructed in

1993, and argue that information on other equipment and infonnation

regarding emissions before the dryers were built

is not relevant.

The hearing officer agreesthat this interrogatory

is overly broad and unduly burdensome

as to time period and scope.

As the People argue, the subparts of the interrogatory go

beyond

the subject matter ofthe initial interrogatory.

Moreover, MOP has failed to demonstrate the

relevance ofthe information requested.

ELECTRONIC

FILING,

RECEIVED, CLERKS

OFFICE,

NOVEMBER 1,2005

Interroyatory 8

Since interrogatory

8 asks no initial question, the hearingofficer considers subsection (a)

to be the primary question.

Subsection (a) requests all information used in the major

modification determination, and subsection (c) asks who was involved in the determination.

While

(a) and

subsections (b) and (d) request information not related

to how the determination was made, such as what BACT system would have been applicable to

such major modification, and what were the

limitations on the maximum capacity to emit PM

from such major modification.

The People argue

that this interrogatory asks more than a single question.

MOP argues

that the entire question relates to major modifications.

The hearing officer finds that this

interrogatory

is overly broad because subsections (b) and (d) are not directly related to how the

major modification was determincd.

Interro~atories

9 and 10

The People requested clarification as to the difference between interrogatories 9 and

10.

Despite MOP’s explanation that one relates to permit modifications, and the other to permit

application modifications, the hearing officer finds that the difference between these questions is

unclear.

Interroliatory 11

Interrogatory II asks the People to itemize the penalties it seeks, and to state how

arrived at those amounts.

MGP furtherasks about methods for attributing economic benefit

accruing to MOP.

The hearing officer finds that this interrogatory is not overly broad or unduly

burdensome, and qualifies as a single interrogatory.

The subparts all sufficiently relate to

single subject matter: penalty calculation.

Interroeatory

The People argue that interrogatory 14

counts as two requests: I)

identification ofall

communications regarding economic and technological feasibility; and 2)

a description of the

technical feasibility and economically reasonable technology available to control the PM

emissions at the facility.

The hearing officer finds that these requests are not reasonably related,

and must count as two

interrogatories.

Therequest for communication about feasibility seeks

information quite different than the request for the control data available.

Interrozatorv

The People argue that interrogatory 16 asks for information about communications

concerning BACT analysis which is duplicative ofinformation requested in numbers

8 and

12.

The hearing officer finds this interrogatoryto be duplicative.

ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER

2005

Interrogatory

Interrogatory iS seeks all communications relating to the permitting, operation and

shutdown ofthe fluidized bed combustion boiler or any dryers at the facility from

1987 to

present.

The People argue that this request is overly broad

because it involves two types of

equipment—the boilers (also subject ofinterrogatory 7) and the dryers.

Also, the People argue

that

the request is overly broad because there are other dryers at the facilitythat are not the

subject ofthis complaint,

and the request specifies a time period that is outside and not relevant

to the

complaint.

The hearingofficer agrees that this request seeks too much information to be

deemed

a single intenogatory.

Interrogatory

19 asks the People to:

1) describe any and all communications regarding

particulate air emission modeling related to the

facility; 2) identify all data relating to air

emission tests conducted at the facility, 3) identify emission data associated with the facility;

and/or 4) identify air particulate modeling related to the facility.

The People argue that the requests for data relating to air emission tests and emission data

associated

with the facility are not relevant to

other parts ofthe question regarding modeling

data.

MOP’s response clarifies that the interrogatory intended to ask only for the air emission

data used in modeling.

Accordingly, this request is acceptable as a single interrogatory.

Interrogatory 20

Interrogatory 20 requests the time period used for calculation of emission limits “for the

project which is the subject of thecomplaint”,

including information about the “look back”

period.

The People requested further definition of“look back”, and points out that

interrogatories 7,

8, and

17 appear to seek information on this issue.

MGP did not respond.

The

hearing officer agrees that

this interrogatory is not specific enough to allow the People to answer.

Interro2atorv

Interrogatory 21

asks the People to identify exemptions that were considered by the

Agency regarding PM emissions atthe facility, and the bases for denial ofsuch exemptions.

The

Peopleread this to ask for all

possible exemptions under theAct.

MGP explains that this

question only seeks information regarding any exemptions actuallyconsidered.

With this

clarification, the hearingofficer agrees with MOP

that the interrogatory is not overly broad or

unduly burdensome.

Interrogatory 22

The People argue that interrogatory 22

is overly broad in its request for all information

relating to any PSD permitting for the facility, including air emission evaluations, and effects on

ELECTRONIC FILING, RECEIVED,

CLERKS OFFICE,

NOVEMBER 1,2005

attainment and/or nonattainment classification ofthe surrounding vicinity.

The People suggest

that this subject is covered in interrogatories 9,

10, and

17.

As MOP did

not address this

objection, the hearingofficer finds this request duplicative.

Interrogatory 24

The primary question in interrogatory 24

is the

Agency’s analysis of the facility’s

“monetary losses.”

The subparts request a breakdown by the penalty amount requested in

settlement negotiations, BACT determination, and the determination ofeconomically reasonable

technology.

The People requested clarification ofthe undefined term “monetary losses.”

MGP did not address this objection, the hearing officer finds that the Peoplecannot reasonably

be expected to answer the interrogatory as posed.

Interrogatory 26

Interrogatory 26 asks for information regarding the Agency’s analysis ofMOP’s good

faith efforts to control PM emissions,~

including an analysis of MOP’s attempts to hold the dryer

manufacturer’s supplier accountable.

Although the People’s motion does not state whether such

analysis was conducted, the People argue that this question is ambiguous, especiallyas to what

constitutes “good

faith efforts”.

MOP’s response did not

address this interrogatory.

The hearing officer finds that the People cannot reasonably be expected to answer the

interrogatory as posed.

Additionally, the hearing officer fmds that

interrogatory26

involves two

separate subject matters.

Interrogatory 28

Interrogatory 28 asks for the Agency’s analysis of the sevcrity ofthe PM emissions,

economic loss due to unemployment, and economic impact ofa shut down ofthe facility.

The

hearing officeragrees with the People that

these requests are insufficiently related to be

considered a single interrogatory.

CONCLUSION

For the reasons enumerated above, the hearing officer strikes MOP’ s amended first set

ofinterrogatories in its entirety.

This leaves to MOP the discretion to hone its interrogatories

and to determinewhich to forego asking.

The hearing officer grants MGP

days from the date

ofthis order to

serve a second amended set ofinterrogatories, and the People shall have 30 days

to respond.

IT IS SO ORDERED.

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER

2005

Carol Webb

Hearing Officer

Illinois Pollution Control Board

1021

North Grand Avenue East

P.O. Box

19274

Springfield, Illinois 62794-9274

217/524-8509

webbc~ipcb.state.il.us

ELECTRONIC FILING,

RECEIVED, CLERKS

OFFICE, NOVEMBER

2005

CERTWICATE OF SERVICE

It is hereby certified that true copies ofthe foregoing order were mailed, first class, on

October 12, 2005,

to each ofthe persons on the attached service list.

It is hereby certified that a truecopy ofthe foregoing order was hand delivered to the

following on October

12, 2005:

DorothyM.

Ounn

Illinois Pollution Control Board

James R. Thompson Center

100W. Randolph St., Ste.

11-500

Chicago, Illinois 60601

CMOiZ U)4-

Carol Webb

Hearing Officer

illinois Pollution Control Board

600 S. Second

Street, Suite 402

Springfield, illinois 62704

217/524-8509

webbc@ipcb.state.il.us

ELECTRONIC FILING,

RECEIVED, CLERKS

OFFICE, NOVEMBER 1,2005

PCB

1997-179

PCB 1997-179

Jane E.

McBride

Amy Wactis

Office ofthe Attorney General

Husch & Eppenberger, LLC

Environmental Bureau

190 Carondelet Plaza

500 South

Second Street

Suite 600

Springfield, IL 62706

St. Louis, MO 63105-3441

PCB

1997-179

Patrick M. Flachs

Husch & Eppenberger, LLC

190 Carondelet Plaza

Suite 600

St. Louis,

MO 63 105-3441

ELECTRONIC FILING,

RECEIVED, CLERKS OFFICE,

NOVEMBER 1,2005

crh

190

Corondolet

Plaza.

sun. &c

St.

tou~,

MISIOUII

63105-344)

Eppenberger,

TIC

Attorneys end Counselors

Lew

Www.htnch.com

314.410.1614

~addS

n-c—n

October

14,

2005

Vii Facsimile 217-524-7740

Jane McBride

Office ofthe Attorney General

500

South Second St.

Springfield,

IL 62706

Re:

People

MGPIngredients ofIllinois,

Inc.

PCB

No. 97-179

Dear Ms. McBride:

MOP continues to work diligently to complete responses to the State’s discovery

requests.

Over three weeks ago, we informed you that

MOP

was having difficulty

preparing responses to some ofyour requests.

Specifically, we had identifiedissues with

Interrogatories

4, 9,

11, 26 and 28.

We have repeatedlytried

informally resolve these

issues with you.

(Please see the attached letters from Pat Flachs, dated September 20,

September

26 and October 5, 2005.)

We have yet to receive any response whatsoever

from you concerning these requests.

Ifwe do not receive a written response to the above discovery issues by the close

ofbusiness, Monday October 17, 2005, you leave us no alternative other than filing a

motion with the Hearing Officer to strike such interrogatories.

Please contact me if you have any questions.

Sincerely,

HUSCH & EPPENBERGER, LLC

John

Collins

cc: Pat Flachs

Enclosures

EXHIBIT

2171130.0l

LOUIS

DOWNTOWN

ST.

LOUIS

•

KMISAS

CITY

•

JEFFERSON

CITY

•

SflINGcIELD

•

PEORIA

CHATTANOOGA

•

DOWNTOWN MEMPHIS.

EAST

MEMPHIS

•

NASHVILLE

ELECTRONIC FILING,

RECEIVED, CLERKS OFFICE,

NOVEMBER 1,

2005

flCi~25—2O05 TUE

01:13

ENVIRONMENTAL

FAX

NO.

2175247740

Lisa Madigan

ATFOR$CY

GENERAL

DATE:

TO:

FAX NO.:

FROM:

PHONE:

NUMBER OF

PAGES:

OFFICE

OF THE AflORNEY

GENERAL

STATE OF

iLLANOIS

ENVIRONMENTAL BUREAU

SPRINGFIELD

FAX

NO.

(211)

524-7740

,-‘o

—/c;

?~~-

TRANSMITTAL SHEET

,za,

ts.

~flt4.

7-’,

(9/J

4’g-c’

)24~—Q

(crii

?cF~a?Q3J

~—

(INCLUDING THIS

PAGE)

IF YOU

NOT RECEIVE ANY OF THE

PAGES PROPERLY. PLEASE CONTACT

SENDER.

GALL BACK PERSON AS

SOON

POSSIBLE.

NOTES:

NQfl~E:This

is a fax transmission ofattorney privileged and/or confidential

information.

It is intended only forte use ofthe individual or entity to which it

is addressed.

Ifyou have received this communication in error, please noti& the

sender at the above telephone number and destroy this transmittal.

Ifyou aie not

the intended recipient, you are hereby notified that any retention or dissemination

ofthis information is strictly prohibited.

Thank you.

500 South

Second

Suce.t,

SpangricId,

ItUnois

62706

•

(217)

782.1090

•

 VfY:(2171785-2771

•

En: (217) 782-7046

lOG War

Rsadolph$ueci~

Chiago. IlIlnoji

60601

•

(312)

814-3000

•

TI?:

 (3t2)

814-3374

•

Fit

(312) 814-3800

1001

Eur Main. Carboathie.

IIlin&s

62901

•

(6181

529-MOO

•

T~1t~6I8b

5294403

•

Fax:

(658)

529-6456

~JBff

10/25/2005

 TUE l2~2O fTX/RX HO 83511 ~O01

ELECTRONIC

FILING,

RECEIVED, CLERKS

OFFICE, NOVEMBER

1, 2005

uUI--25-2005 TUE 01:14 PH ENVIRONMENTAL

 FAX NO.

2175247740

OFFICE OF THE

ATI’ORNEY GENERAL

STATE

OF ILLINOIS

October

25, 2005

Mr.

John Collins

Husch

& Eppenberger,

LLC

190

Carondelet Plaza

Suite 600

St. Louis, Missouri

63105-3441

Via facsimile:

(314) 480-3505

Re:

People

Midwest

Grain Products

PCB No. 91-179

Dear Mr. Flaths and Mr. Collins:

I am writing to correct an error

in aletter

Ij ust sent, dated today.

I was out of

October

21, 2005.

the office and out of town on October

14, 2005, and October

17 through

I am sorry for the original

error.

Sincerely,

Jane

McBride

Assistant Attorney General

(217) 782-9033

cc:

Dennis

Brown,

Esq., IEPA

500

South

Sccond Suva. Springficld,

Illinois

62746

•

(217) 782-5090

•

5~5~y.

(217)

785-2775

•

Fat

(217) 782-7046

IQO

Wat

Randolph Succt, Chiesgo, llLinui~

6060!

•

(312)

854-3000

•

-rii~

(352) 854-3374

•

Far

(312) 854-3806

1001

tsar

Main. Ca,bondale, Illinoli

62905

•

 (61K) 529.6400

•

ViY:(618)

529-6403

•

Fit

(618)

529-6416

Lisa Madigan

KrroaN~y GtN~KAL

Mr. Patrick Flachs

if flzuIiTh

~Thr~

-a-

10/25/2005

TUE

 12:20

 (TX/RX NO 8357)

 T.~jO02

•

~25-2005T~F~?

~9~B4WS?I&ihbPEC~

CLERK’S OFFICE, NOVEMBER 1,

2005

TuiL

FAX

NO.

2175247740

OFFICE OF THE AflORNEY GENERAL

STATE

ILLINOIS

Lisa Madigan

AflORNEY GENERAL

FAX

TRANSMITTAL SHEET

ENVIRONMeNTAL BUREAU

SPRINGFIELD

FAX

NO.

(217)

524-7740

DATE:

~o7ar/oc

TO:

zAZI

C’~.

//rzj

FAX

NO.:

FROM:

PHONE:

(1*i

,~r

7J_~FO33

NUMBER OF PAGES:

~2..

(INCLUDING THIS

PAGE)

IF You DO

NOT RECEIVE ANY OF THE

PAGES PROPERLY, PLEASE CONTACT

SENDER.

CALL

RACK PERSON AS

SOON AS

POSSIBLE.

NOTICE: This is a fax transmission of attorney privileged andlor confidential

information.

It is intended only for the use ofthe individual or entity to

which

is addressed.

you

have received

this

communication in error, please notify the

sender at the above telephone number

and destroy this transmittal.

Ifyou

are

not

the intended recipient, you

are

hereby notified

that

any

retention

or dissemination

this

information is strictly prohibited.

Thank you.

NOTES:

500

South Second

Strcci,

Spriagficld,

Illinois

62106

•

(21?) 7824090

•

IT?: (217) 785.2771

•

(217)

782.7046

100 Wen R*ndolph Saccç Chkago. Illinois

60601

(312) 814-3000

•

Tfl’:

(352) 814-3374

•

Fat

(312) 814-3806

Inn’

R,n M,h.

r..rk4,nvs,k..

Illinnct

6290L

•

 (618

 529-6400

•

TTY;

(618) 5294403

•

Fax:

(618)

529-6456

10/25/2005

IDE

 12:17

 (TX/RX NO 8358) ~J001

ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER 1,2005

~..~~?—25—2O05

 TUE 01:11

 Ff1 ENVIRONFIENThL

 FhX NO.

2175247740

P.

02

OFFICE OF THE

ATTORNEY GENERAL

STATE

ILLINOIS

Lisa

Madigan

KITOI~NEY

CEXERAI.

October 25, 2005

Mr. Patrick Flachs

Mr. John Collins

Ifusch & Eppenberger, LLC

190 Carondelet

Plaza

Suite

600

St. Louis, Missouri

63105-3441

Via facsimile: (314) 480-1505

Re:

People

Midwest

Grain Products

PCB No. 97-179

Dear Mr. Flachs and Mr. Collins:

I am in receipt of Mr.

Collins letter of October 14, 2005.

As you

arc

well aware, there was a

stay

of discovery in

effect

iii

this matter during the

time

Plaintiff’s

motion to strike

was

pending.

The

Hearing

Officer’s order regarding

that motion

was received

this officeon Thursday, October 15, 2005.

was

out oftheoffice and out of

town on October 16. 2005, and October

19 through October 21,

2005.

We willrespond to your letter ofSeptember 20, 2005 as soon as possible.

Sincerely,

Jane E. McBride

Assistant Attorney General

(217)

782-9033

cc:

Dennis

Brown,

Esq.,

IBPA

500 South

Sccnnd Street, Springfield,

illinois

(s2*6

•

(217)

7824090

•

‘Ii’?: (217)

785-2775

•

Fat

(Z17) 782-7046

500 West RandoLph

Street. Chicago,

1uIinoi~60645

•

(312)

814-3000

•

IT?:

(312) 814-3374

•

Fax:(352)814-3806

1001

Ran Main,

Carbosulale. Illinois

62901

‘

(61$) 529-6400

•

TTYt

(618)

5294403

•

Fax;

(61s) 329.6456

10/25/2005

TUE

 12:17

 TX/ftX

 NO 8356)

 1Th002

ELECTRONIC FILING,

RECEIVED, CLERKS OFFICE, NOVEMBER 1,2005

ILLINOIS POLLUTION

CONTROL

BOARD

September 7,

2005

PEOPLE OF THE STATE OF ILLINOIS,

)

Complainant,

)

PCB 97-179

)

(Enforcement

Air)

MIDWEST

GRMN

PRODUCTS

)

ILLINOIS,

INC.,

)

Respondent.

)

REARING

OFFICER ORDER

On September

7, 2005, the

parties participated in a telephone status conference with the

hearing officer.

Complainant

has just filed a motion to

strike respondent’s amended

interrogatories, and respondent wilt

file a response within

14 days.

The

discovery deadlines

are

stayed pendinga ruling on

this motion.

The patties are directed to participate in

a telephone

status conference

with the hearing

officer at 2:00 p.m.

on October 25,

2005.

The

status

conference shall

be initiated by the

complainant.

IS SO

ORDERED.

CM~Z

W~-

Carol

Webb

Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue

East

P.O. Box

19274

Springfield, Illinois 62794-9274

217/524-8509

webbc~ipcb.state.il.us

ELECTRONIC

FILING,

RECEIVED,

CLERK’S OFFICE,

NOVEMBER 1,2005

5LOI~J

18c38

 ON X8/XL1

Co

 St O3M cOOULL/8o

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS.

Complainant,

v.

)

 PCH 95-

(Enforcement)

MIDWEST GRAIN PRODUCTS OP ILLINOIS,

INC.,

 an Illinois corporation,

Respondent.

STIPULATIO$ AND PROPOSAL

 FOR SETrLEWNT

Complainant,

 PEOPLE OF ThE STATE OF ILLINOIS,

by

 ROLAND

N.

BURflTS,

 Attorney General of the State of Illinois,

 on his own motion

and

 at the request of the Illinois Environmental

 Protection Agency

(“Agency”),

and

 Respondent,

 MIDWEST

 GRAIN

 PRODUCTS OF ILLINOIS,

(“Midwest Grain”), by its attorneys,

 Uusch

 & Eppenberger,

 do hereby

submit

 this stipulation and Proposal

 for Settlement.

 The parties

agree

 that the statement

 of facts contained herein is agreed to only

for the put-poses of settlement.

 The parties state

 that

 this

stipulation

 is entered into for purposes of settlement only and that

neither the fact that a party

has

 entered into this stipulation,

nor

any of the

facts

stipulated herein,

 shall be admissible into

evidence or used for

any

 purpose in this or any other proceeding,

except to enforce the terms hereof by the parties to this agreement.

Notwithstanding the previous sentence,

 this Stipulation and Proposal

for settlement and any Pollution Control Board

 (“board”)

 Order

accepting same

may

be used as

 a factor to be considered under

Section 42(h)

 of the Act,

415

 ILCS

 S/42(h),

 in determining

appropriate civil penalties

 for any future violations

 of the

Act.

1

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YV.1

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(HM

~unzitii~n

ELECTRONIC FILING,

RECEIVED, CLERKS

OFFICE, NOVEMBER 1,2005

atoIPj

 (8c98 ON *8/fl

 Co 91

 (iI& cooz/tt/eo

This Stipulation

 and Proposal

 for Settlement

 shall be null and void

unless the Board approves and disposes of

 this

matter on each and

every one of the terms and conditions

 of the settlement set

 forth

herein.

I-

JURISDICTION

The

Board

has

jurisdiction

the

subject

matter

 herein and of

the

parties

 consenting

 hereto pursuant

the

Act,

415

ILCS

SI.

.~s

~QQ-

II.

AUThORIZATION

The undersigned

 representatives for each party certify that

they are fully authorized by the party whom they represent to enter

into the terms and conditions

 of this Stipulation and Proposal

for

Settlement and to legally bind them to it.

In.

APPLICADILIfl

This Stipulation and Proposal for Settlement

 shall apply to and

binding

upon

the

 Complainant and Respondent,

 as well as the

Respondent’s

 successors and assigns.

 The Respondent

 shall not raise

as a defense to any enforcement action taken pursuant to this

settlement the failure of its officers,

 directors,

 agents, servants

or employees

 to take such action as shall

 be required to comply with

the provisions of this settlement.

2

wzniqinf~i

TVd

01L1

(NA

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 1,2005

 LLol~J iscae

on

*81*11

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‘V.

STATEMENT

OP

PACTS

1.

 The Agency is an administrative agency established in the

executive branch of the State government by Section

 4 of the Act,

415 ILCS

 5/4,

 and charged,

 inter

aLta,

 with the duty of enforcing

the Act.

2.

 At all times relevant to the Complaint,

 Midwest Grain is

an Illinois corporation with its manufacturing facility located at

South Front Street,

 Box 1069,

 Pekin,

 Tazewel.

 County,

 Illinois

(“Facility”)

3.

 At its Facility,

 Midwest Grain produces ethyl alcohol for

beverages and industrial

 puxposes.

 anhydrous

 fuel alcohol,

 wheat

gluten, and distiller’s

 feed.

4.

 During its production process.

 Midwest Grain employs

three natural gas-tired boilers and previously operated

 a fluidized

bed

 combustion boiler using high sulfur coal for steam

and

electricity generation.

5.

 The fluidjzed bed combustion boiler previously

 emitted,

or was capable of emitting

 sulfur dioxide into the atmosphere.

6.

 Midwest Grain timely submitted to the Agency its

quarterly

excess

emission

reports

 for sulfur dioxide for calendar

year 1991.

7.

 Midwest Grain’s quarterly emission reports showed that it

had

exceeded

the

1.2

lb/mm

BTIJ

30-day

rolling

average

for

116

days

in 1991.

A.

 On March

24,

1993,

 the Agency inspected Midwest Grain and

found that Respondent was not meeting the 851 reduction

 in sulfur

2Zflh!.TOI~

YVd

 01:11 031

SOOVLL/RO

ELECTRONIC FILING,

RECEIVED, CLERKS

OFFICE, NOVEMBER

1, 2005

8L0I~J 19998

 OH xu/xti

 CO 91

 031 So0~/LL/oo

dioxide

emissions

 as required by permit No.

 82100034.

9.

 The Agency also obtained Respondent’s continuous emission

monitor

 records and found that these records did not contain the

percent

 reduction information needed

to verify compliance

 with the

851 reduction

 requirement

 of permit No.

 82100034.

10.

 On April

6,

 1993,

 the Agency sent a compliance

 inquiry

letter

 to Respondent

 for alleged violations of permit

No.

82100034

and

Prevention of Significant

Deterioration

 of Air Quality

 (°PSD”)

Midwest Grain responded to the compliance inquiry letter on April

21,

 1993.

11.

 Section 9(a)

and

 (b) of

 the Act.

415

 IL.CS 5/9(a)

and

 (b).

provides:

No person shall:

a.

 Cause or threaten

 or allow the

discharge

emission

any

contaminant into the environment

in

any State so as to cause or tend to

cause air pollution in Illinois,

either alone or

 in combination with

contaminants from other sources,

or

so as

 to violate regulations or

standards adopted by the Board under

this Act;

b.

 Construct,

 install,

 or operate any

equipment,

 facility, vehicle,

vessel, or aircraft capable of

causing or contributing to air

pollution or designed to prevent air

pollution,

 of any

type

designated

Board regulations, without

 a permit

granted by the Agency,

 or in

violation of any conditions imposed

by such permit.

12.

 Section 201.141 of the Illinois Pollution Control Board’s

(“Board”)

 Air Pollution Regulations,

35

 Ill. Adm.

 Code 201.141,

titled,

 Prohibition of Air Pollution, provides:

4

~zot~ioWi

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01:11

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ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER 1,2005

stolWucsa

OH

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No person shall cause cr threaten or allow the

discharge or emission of

any

contaminant

 into

the environment

in

any

 State

 so as.

 either

alone or in combination with contaminants

 from

other sources,

 to cause or tend to cause air

pollution

Illinois,

 to violate the

provisions

this

Chapter,

to

prevent

the

attainment

maintenance

any

applicable

ambient

air

 quality standard.

13.

 Special condition No.

 2(a) (ii)

 of Midwest Grain’s permit

No.

 82100034. provides:

2a.

 The emissions from

 the boiler shall not exceed

the following emission limits:

ii.

SO~

1.2

lbs/b’

btu and

 15 percent

of

the

potential combustion concentration

(85

percent

reduction)

 on a 30-day rolling average basis.

14.

 Section

 9.1(d) (1)

 of the Act,

415

 tICS 5/9.1(d) (Jj,

provides:

d.

 No person shall:

1.

 Violate

any

provisions

 Sections

111,

 112,

 165 or 173 of the Clean

Air

Act,

now

 hereafter

 amended,

or

federal

 regulations

 adopted pursuant

thereto.

IS.

 Section 165 of the Clean Air

Act,

 42 U.S.C.

 §7475 provides.

in pertinent part:

a)

 No major emitting facility of which construction

is commenced after the

date

 of the enactment of

this part

may

be constructed in

any

area to which

this part applies unless--

the

 proposed

 facility

subject

the best available control technology

for

 each

 pollutant

 subject

to

regulation under this chapter emitted

from,

or

 which.

 results

 from,

 such

facility;

2~O/61O~l

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0!:!! ~I~IA

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 1,2005

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16.

 Pursuant

 to Section

165

 of the Clean Air Act,

 as amended,

the United States Environmental Protection Agency has adopted an air

program

 for the approval and promulgation

 of implementation plans,

40

CFR Part

52.

17.

40

CPR

 52.21(b) (1)

(1)

 (b).

 as made enforceable

 by Section

9.1(d) (1)

 of the Act,

 titled.

 Prvention of Siqnifjcpn~Deterioration

of Air quality,

 provides the following defintion.

(1)

(i)

 Major stationary source means:

(b)

 Notwithstanding the stationary source

size specified in paragraph

 (b) (1) (i)

of this section,

any

 stationary source

which emits,

 or has

 the potential to

emit,

 250 tons per year or more of

any

air

pollutant

subject

regulation

under

the

Act;

18.

CFR

52.21(j)

(2),(r)

(1),

as

made

 enforceable

 by Section

9.1(d)

(1)

the

Act,

 titled, Prevention of Sianificant Deterioration

Air

quality,

provides

pertinent

part:

40 C.F.R.

 52.21

(j)

(2)

A

new

major

stationary

source

 shall apply best

available control technology

 for each pollutant

subject

regulation

 under

the

Act

 that

it would

have

the

 potential

to

 emit

in

 significant

amounts.

(r) (1)

Any

owner

operator

who

constructs

or operates

 a source or modification

not

accordance

 with the application

submitted pursuant to this section or

with

the

 terms

any

approval

construct, or

any

owner or operator

source

modification

subject

this

 section

who

 commences

construction after the effective date

these

regulations

 without applying

for and receiving approval hereunder,

shall

subject

appropriate

6

111

01:!!

WIM

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ELECTRONIC

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enforcement action.

V.

ALLRGED VIOLATIONS

1.

 Complainant

alleges that Respondent caused or allowed excess

~ulfur

 dioxide

 emissions

 from

its

 fluidized

bed

 combustion

 boiler

between January

 3-13

and

22-27.

 1991;

 April 9-11,

and

13-17,

 1991; June

7-30,

 1991;

 July 1-17,

 1991; and October 30-December

31,

 1991,

for

a

total of

 116 days in 1991.

2.

 complainant

 alleges

 that

 Midwest

 Grain

 failed

to

 reduce

sulfur dioxide emissions

 from the fluidized bed boiler by 8S~

during

calendar year 1992, and March 25-April

15,

1993

and

nine days in

1993.

3.

 Complainant

 alleges

 that

 Midwest

 Grain

 violated

 special

condition

 2(a) (ii) of

 its fluidized bed combustion

 boiler

 operating

permit No. 82100034 by not achieving the 85

reduction

from

March

25-

April

15.

1993

and

June

3,

0,

12.

 14-19,

 1993.

4.

 Complainant alleges that Midwest Grain

 is a major emitting

facility

 subject

 to Section

165

the

Clean

 Air Act.

 The percent

reduction limitations contained in Midwest Grain’s operating

permit

No.

82100034

for

the

 fluid.ized bed combustion boiler were

assumed to be

best available control technology

(MBACT~).

 Complainant alleges that

Midwest Grain has failed to meet the 85

reduction

 limitation,

 thereby

not achieving BACT.

5.

 Complainant alleges that

 Midwest Grain’s acts

and

omissions

constitute

the following violations:

 Sections

9(a)

and

 (ID)

of the Act,

415

 IL,CS 5/9(a)

and

 (b), Section 201.141 of the Board’s

Air

Pollution

Regulations,

35

 Ill.

 Adm.

 Code 201.141

and

 Section 9.1(d) (1)

 of the

Act,

 415 ILCS 5/9.1(d) (1)

 and 40 CFR 52.21(j)(2L(r)1).

8~0fTZo~l

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NATURE

 OP RESPONDENT’ S OPERATIONS

Midwest

Grain

produces

ethyl

alcohol

for

 beverages and

industrial

purposes, anhydrous

 fuel alcohol, wheat gluten,

and

distiller’s.feed.

Its

 facility

 consists

 of grain

 receiving

 by truck

and

 rail;

 grain

cleaning

and

 storage;

 alcohol

 fermenting,

 distilling.

 storage,

and

truck,

 barge

and

rail

load-out;

process

line

 and storage tanks

for

fuel alcohol;

 and a process line including

 a barrel tilling

 and dump

line for beverage alcohol.

 The facility has three natural gas-fired

boilers and formerly utilized one fluidized bed

combustion boiler which

used high sulfur coal

 for steam

and

electricity generation.

VII

EXPLANATION

OP

ALLEGED FAILURES TO COMPLY WITH TUE ACT

Midwest

Grain has no explanation acceptable to

the Agency for its

alleged

failure

 comply with the Act and

Board regulations.

 Midwest

Grain contends

that special condition No.

 4 of

its operating permit No.

82100034 provides for excess

emissions

 during

 ‘startup,

 malfunction

and

breakdown.”

 Midwest Grain believes

that

if the excess emissions during

startup,

 malfunction and breakdown were eliminated

from the

 rolling

average

 tests

and

 other

 emission

 tests,

the

 Company

 would

be

in

compliance with all conditions of its operating

permit.

 Midwest Grain

also believes

 that

 unless

 emissions during

 startup,

 malfunction

or

breakdown

are

 exempted,

the

 boiler and auxiliary

 systems

 were

not

capable of achieving an 85

 removal rate even utilizing best available

control technology

 (“BACT”)

8

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PLANS OF COMPLIANCE

Midwest Grain shall conform with all permit operating conditions.

all requirements of the Act and the Board’s Air Pollution Regulations

and 40 CFR Part 52.21.

Ix.

IMPACT

 TflE

PUBLIC

RESULTING

1!RQM

ALLEGED

NON-COMPLIANCE

Section

33(c)

 the Act,

415

ILCS

5/33(c),

provides:

(c)

making

its

orders

and

determinations,

the

Board

shall take into consideration all the facts

and

circumstances

 bearing

upon

the

 reasonableness

of the emissions, discharges or deposits involved

including,

but

 not limited to:

(1)

 the character

and

 degree of injury

to,

or

interference

 with

the

 protection

of

the

health,

 general

 welfare

and

 physical

property of the people;

(2)

the

 social

and

 economic

 value

of

the

pollution source;

(3)

the

 suitabiJty

or

 unsuitability

of

the

pollution source to the area in which it

is

located,

 including the question of priority

of location in the area involved;

(4)

the

 technical practicability

and

 economic

reasonableness

of

 reducing or eliminating

the

 emissions,

 discharges

or

 deposits

resulting

 from such pollution source; and

(5)

 any subsequent

 compliance.

In

response

these

 factors

 the Complainant states as follows:

1.

 Midwest

Grain’s

alleged emissions of excess sulfur

dioxide for 116 days

 in 1991,

 Midwest Grain’s alleged failure to

reduce sulfur dioxide emissions from the fluidized

bed

combustion

boiler by 85

 during calendar year 1992 and

31

days in 1993 and its

alleged failure

 to achieve BACT, allegedly posed a health threat to

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the citizens of Illinois.

2-

 The Facility has social and economic value.

3.

 The production of alcohol at the facility in compliance

with the Act and Board regulations would have been suitable to the

area.

 Tt was technically practicable

 and economically

reasonable

reduce

sulfur

dioxide

emissions,

resulting

 from the

production

 process

 at Midwest

Grain’s

 facility.

5.

Complainant

has

no knowledge of

any

claimed or actual

violations of

 the Act by Midwest Grain subsequent

 to the dates

alleged herein.

CONSIDERATION

SECTION

42(h)

 FACTORS

Section

42(h)

the

Act,

415

ILCS

5/42(h).

provides:

In determining the appropriate civil penalty to

be imposed under subdivisions

 (a),

 (b) (1)

(b) (2)

or

 (b) (3)

 of this Section.

the

Board

is

authorized to consider any matters of record in

mitigation or aggravation of penalty,

 including

but not limited to the following

 factors:

(1)

 the duration and gravity of the violation;

(2)

 the presence or absence

 of due diligence

on the part of

 the violator

attempting

comply

with

requirements

 of this Act

and

regulations

thereunder

 to secure

relief therefrom as provided by this Act;

(3)

 any economic benefits accrued by the

violator because

delay

compliance

with requirements;

(4)

 the amount of monetary penalty which will

serve to

deter

 further violations by the

violator and to otherwise aid in enhancing

voluntary compliance with this act by the

violator

and

other persons similarly

subject to the Act;

and

10

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(5)

 the number, proximity in time,

 and gravity

of previously

 adjudicated violations

of

this Act by the violator.

In response to these factors

 the Complainant states as follows:

1.

 Midwest Grain’s alleged wrongful conduct,

 as set forth in

Section

V herein,

 occurred during 116 days in 1991,

 during calendar

year 1992 and 31 days in 1993.

 Complainant alleges

 that the

violations posed

 a potential health threat

 to the

citizens

Illinois

2

 According to Agency records,

 Midwest Grain exhibited due

diligence in attempting to correct the violations and comply with

the requirements of the Act and Board regulations as

soon as the

violations were made

 known

 to Midwest Grain by the Agency.

3.

It

 is presently

unknown

whether Midwest Grain accrued

economic benefit from the alleged non-compliance

with

the

 Act.

4.

 A civil penalty of Fifteen Thousand Dollars

 ($15,000.00)

will

serve

 to deter any future violations of the Act

 and regulations

adopted thereunder and will enhance voluntary compliance with the

law.

S.

 Complainant’s records do not reflect previously

adjudicated violations of the Act by Midwest Grain.

XI.

1.

 Midwest Grain neither admits nor denies

 the violations

alleged by the Complainant herein.

2.

 Midwest Grain,

 shall

pay

a civil penalty of Fifteen

Thousand Dollars

 ($15,000.00)

 into the Illinois Environmental

Protection trust

Fund

within thirty

 (30)

days

 from the date on which

11

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the Board adopts a final opinion and order approving this

Stipulation

and

 Proposal

 for Settlement.

 Payment shall be made by

certified check or money order, payable to the Treasurer of

the

State of Illinois,

 designated to the Illinois Environmental

Protection Trust

 Fund,

 and shall be sent by first class mail

to:

Illinois Environmental Protection Agency

Fiscal Services Section

2200 Churchill Road

P.0.

 Box 19276

Springfield,

IL

 62794-9276

A copy of the check shall

sent

to:

Zemeheret Bereket-Ab

Assistant Attorney General

Environmental Control Division

100

Pt

 Randolph St., 12th Floor

Chicago,

 Illinois 60601

Respondent’s Federal Employers Identification Number is

48-0911013

and shall appear on the face of the certified check or money order.

3.

 Midwest Grain shall permanently shut down the fluidized

bed combustion boiler by the end of calendar year 1994.

 Midwest Grain shall cease and desist from the violations

the

Act

and

the

regulations

promulgated

thereunder.

XII.

COMPLIAZICE WZ1’E O~’ntacLAWS AND REGULATIOH$

This Stipulation and Proposal for Settlement

 in no way affects

Midwest Grain’s responsibility to comply with any federal,

 state or

local

 laws and regulations,

 including

but not limited

to,

 the Act,

415

 ILCS 5/1 ~

 and the Board’s

Air

Pollution Regulations.

12

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AGREED:

FOR

TRE

 COMPLkINANT:

PEOPLE

 OF ThE STATE OF ILLINOIS

ROLAND

W.

 BURRIS

Attorney

General

the

State

Illinois

By:

MNI7UEW

Environmental Control Division

Assistant

Atto

General

Dated:

FOR

THE

RESPONDENT:

MIDWEST

GRAIN

PRODUCTS

ILLINOIS.

~Twç.

By:

 ((J±n’-j

Name:AAJVWOsJIJ.

 1ETS.tC~L..j

Title:

Dated:

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14

ILLINOIS

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