BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
R E
RK'SEnFFjCED
PEOPLE OF THE STATE OF
)
AUG Z 5 2006
ILLINOIS,
)
Complainant,
STATE OF
ILLINOIS
)
PCB 04-16
Pollution Control Board
(Enforcement - Air)
v.
)
PACKAGING PERSONIFIED, INC
., an
)
Illinois Corporation
)
Respondent
.
)
PLEASE TAKE NOTICE that on Tuesday, August 29, 2006,
we filed the attached
Motion to For Interlocutory Appeal From Hearing Officer Order Dated June
28, 2006
Denying Respondent's Motion to Compel Discovery via hand delivery with the Clerk of the
Illinois Pollution Control Board, a copy of which is herewith served upon you .
Roy M. Harsch
Gardner Carton & Douglas LLP
191 N. Wacker Drive
Suite 3700
Chicago, Illinois 60606-1698
(312) 569-1000
THIS FILING IS SUBMITTED ON RECYCLED PAPER
NOTICE OF FILING
TO:
Dorothy Gunn, Clerk
Bradley P . Halloran
Christopher J. Grant
Illinois Pollution Control Board Hearing Officer
Office of the Attorney General
James R. Thompson Center
Illinois Pollution Control Board 188 West Randolph
Suite 11-500
James R
. Thompson Center
20`h Floor
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Chicago, IL 60601
100 West Randolph Street
Chicago, IL 60601
BEFORE THE
OF
ILLINOIS
THE STATE
POLLUTION
OF ILLINOISCONTROL
BOAR" E C E I
V
E D
CLERK'S
OFFICE
PEOPLE OF THE STATE OF
)
AUG Z 9 2006
ILLINOIS,
)
Complainant,
STATE
OF ILLINOIS
)
Pollution Control Board
PCB 04-16
(Enforcement -
Air)
v .
)
PACKAGING PERSONIFIED, INC ., an
)
Illinois Corporation
)
Respondent .
)
MOTION TO FOR INTERLOCUTORY APPEAL
FROM HEARING OFFICER ORDER DATED JUNE 28, 2006
DENYING RESPONDENT'S MOTION TO COMPEL DISCOVERY
Respondent, Packaging Personified, Inc . ("Packaging"), by its attorneys Gardner Carton
& Douglas LLP, pursuant to Sections 101 .500, 101 .504 and 101 .518 of the Illinois Pollution
Control Board's Procedural Rules, 35 IAC 101 .500, 101 .504 and 101 .518, moves for an
Interlocutory Appeal from an Order of the Hearing Officer in this matter dated June 28, 2006,
denying Packaging's Motion to Compel Discovery . In support of its Motion for Interlocutory
Appeal, Packaging states as follows :
INTRODUCTION
This matter arises from a 12-count Complaint filed on August 5, 2003 by the Attorney
General of the State of Illinois ("Complainant") pursuant to Section 31 of the Illinois
Environmental Protection Act ("Act"),
415 ILCS 5/31 (2002), against Packaging for alleged
violations of the Act concerning emission of Volatile Organic Materials ("VOMs") and
Hazardous Air Pollutants ("HAPs") from Packaging's bag extruding and printing operations
.
Packaging answered the Complaint on January 16, 2004 and the parties engaged in discovery
pursuant to the order of the Hearing Officer.
On January 14, 2005, Packaging served Complainant with its Discovery Requests (copy
attached as Exhibit A)
. In a nutshell, Packaging's discovery requests were designed to obtain
information regarding the Flexographic Printing Rules, 35 IAC 218 .401 et seq .,
which resulted
from the rulemaking proceeding designated R93-9 . A primary component of Packaging's
defense in this concerns the issue of the availability of an adjusted standard for certain of
Packaging's emissions . While several other companies with virtually identical issues were
allowed to apply for, and received, site-specific relief, such relief was denied to Packaging on the
basis of lack of timeliness in applying for such relief. Packaging's motive for requesting this
discovery was to determine if other companies received notice or other documents regarding the
Flexographic Printing Rules that Packaging did not receive, and if other companies were able to
participate in R93-9 at a level of involvement that was not available to Packaging
.
Complainant served written responses on March 17, 2005 (Exhibit B)
. In its written
responses, Complainant refused to provide the discovery requested in Interrogatories 6 through
12 and Document Requests 13 through 18, asserting that the information sought in those
Discovery Requests "does not relate to any claim or defense" in this case
.
Counsel for both parties conferred but were unable to negotiate a resolution to resolve the
discovery impasse
. Consequently, on January 31, 2006, Packaging moved to compel responses
to Interrogatories 6 through 12 and Document Requests 13 through 18
. On February 16, 2006,
the Complainant filed a response, and Packaging filed a reply on April 12, 2006
.
On June 28, 2006, the Hearing Officer entered an Order denying Packaging's Motion to
Compel (Exhibit C)
. The Order summarily held that the "rulemaking process itself is immaterial
and irrelevant to the violations alleged in the complaint at bar
." In addition, the Order stated that
2
because much of the information was available in the Board's public file, compelling the
Complainant to respond would be overly burdensome .
In light of the denial of its requested discovery by the Hearing Officer, Packaging
requests that the Board consider the denial of Packaging's Motion to Compel Discovery pursuant
to Section 101 .518, and enter an order overruling the Hearing Officer's decision, and remanding
with instructions for the Hearing Officer to grant Packaging's Motion to Compel Discovery .
ARGUMENT
A.
Under Illinois' Liberal Discovery Standards, the Hearing Officer Erred By Finding
the Requested Discovery Irrelevant to the Case at Bar
It is a bedrock principle of Illinois procedural law that the "Illinois Supreme Court rules
permit liberal pretrial discovery ." DuFour v. Mobil Oil Corp ., 301 Ill . App . 3d 156, 160, 703
N.E.2d 448, 451 (1st Dist . 1998). Further, the Board's rules provide that "[ajll relevant
information and information calculated to lead to relevant information is discoverable ." 35 IAC
101 .616(a) (emphasis added) ; see also DuFour, 301 Ill. App. 3d at 160, 703 N .E.2d at 451
.
Interrogatories 6 through 12 and Document Requests 13 through 18 request information
relating to the Flexographic Printing Rules, 35 IAC 218 .401 et seq
.,
which resulted from the
rulemaking proceeding designated R93-9 . The Flexographic Printing Rules are certainly
relevant to this matter, as Complainant's claims are based on allegations regarding emissions
from Packaging's Flexographic printing presses, and several counts in the First Amended
Complaint cite directly to the Flexographic Printing Rules . As noted above, Packaging intends
to raise the issue of the non-availability of an adjusted standard for certain of Packaging's
emissions, where such relief was given to several other companies with virtually identical issues
.
Because such site-specific relief was denied to Packaging on the basis of lack of timeliness in
applying for such relief, the rulemaking proceeding R93-9, the timing of that proceeding relative
3
to the timing of the alleged violations, and Packaging's ability to participate in R93-9 and seek a
variance or adjusted standard are all relevant to whether Complainant can establish both liability
and appropriateness of the proposed penalty . More specifically :
• Interrogatories 6, 7, and 8 seek the identity of entities who received
notice or other correspondence regarding R93-9 . Document
Request 13 asks for comments and other documents relating to
R93-9, and Document Requests 14 and 15 asks for documents and
notice provided to Packaging related to R93-9 . These Discovery
Requests are relevant because Packaging is entitled to determine if
other companies received notice or other documents regarding the
Flexographic Printing Rules that Packaging did not receive, and if
other companies were able to participate in R93-9 at a level of
involvement that was not available to Packaging .
• Interrogatories 9 and 10 ask for information on air regulation and
permitting pertaining to companies in the same industry as
Packaging Personified . Document Requests 16 1 ask for documents
relating to adjusted standards and variances sought by companies
in the same industry as Packaging Personified. These Discovery
Requests are relevant to the extent that other similarly-situated
companies received regulatory relief that Packaging could also
have received.
• Interrogatories 11 and 12 and Document Requests 17 and 18
request information USEPA and the State of Illinois involvement
with the Flexographic Printing Rules, including enforcement of the
Rules and SIP approval of variances and adjusted standards . These
Discovery Requests are relevant because the information sought is
relevant to Complainant's stance in this case relative to other
enforcement cases or petitions relating to the Flexographic Printing
Rules.
In its objections to Packaging's Interrogatories 6 through 12 and Document Requests 13
through 18, Complainant stated that the information sought is not relevant, However, to the
contrary, as demonstrated above, Packaging is entitled to this information because it is relevant
to the regulatory context of Complainant's entire case .
'
Note that Packaging erroneously numbered two consecutive Document Requests both as number 16 .
Complainant objected to both requests, and Packaging requested responses for both in its Motion to
Compel.
4
Packaging respectfully believes that as part of its defense, it should be allowed to show
what entities received notice of the adoption of these Flexographic rack regulations, including
similarly situated Flexographic printers that had not complied with the Flexographic regulations
adopted in R93-9
. While these similarly situated printers had not complied with the regulations,
they were nevertheless were allowed to pursue variances and adjusted standard relief with the
apparent approval by the Illinois Environmental Protection Agency, and
without any
enforcement actions being brought by Complainant
. Thus, the questions of notice, who was
involved in rack regulations, subsequent IEPA discussions with similar situated Flexographic
printers, and the decisions to authorize relief without accompanying enforcement actions is
directly relevant to Packaging's defense to the enforcement action brought in this case, including
but not limited to the issue of the gravity and appropriateness of the demanded penalty
.
Under Illinois' liberal discovery standards, such discovery is more than fair game, and
the Hearing Officer erred in denying Packaging's Motion to Compel this discovery
.
B.
The Requested Discovery is Narrowly Tailored, and Given the Gravity of the
Penalty Sought by the State in This Case, Not Unduly Burdensome
In its response to Packaging's Motion to Compel, Complainant argued that the requested
information is overbroad and overly burdensome because it would require Complainant to
evaluate the rulemaking records as well as
other proceedings
. Complaint also noted that it had
produced "thousands" of pages of documents in response to other of Packaging's discovery
requests to which Complainant did not object
.
. Further, Complainant objected that the discovery
requests would compel Complainant to produce information not in its possession and in the
possession of third parties
. Finally, Complainant estimated that it would take approximately 37
hours to compile and respond to the requested discovery
. Complainant's position is untenable
for the reasons set forth below
.
5
First, it is clear that from the above-referenced discovery requests (attached as Exhibit A
and summarized above) that Packaging's requests are narrowly tailored to obtain only that
discovery which is reasonable, and directly relevant to one of its anticipated defenses . Even
Complainant does not argue that Packaging's discovery is meant solely for the purposes of
harassment or delay, and Complainant does not and cannot suggest any modifications to
Packaging's requests that would make them less overbroad .
Second, the issue of how many documents were produced by Complainant in response to
other document requests not at issue in Packaging's Motion to Compel is irrelevant, and merely a
smokescreen to distract from Complainant's outright refusal to produce any of the documents at
issue now. Sufficiency of discovery responses is not something to be evaluated on a "weight"
basis, nor can it be measured against a standard of substantial completeness
.
Next, the notion that Packaging expected or was entitled to compel Complainant to
produce documents not within its possession, custody or control was never raised or suggested
by Packaging, and is simply specious .
Finally, the fact that it is estimated that it will take 37 hours (according to Complainant)
to search for this information is unpersuasive
. Even if this estimate is correct, any burden placed
on Complainant by having to spend 37 hours is a direct result of the baseless allegations raised in
the Complaint and the relief sought, and therefore is completely reasonable
. Complainant is
seeking thousands and thousands of dollars in penalty as
a result of allegations raised in 12
counts in a 40-plus page Complaint
. While it goes without saying that Complainant will have to
devote some effort to responding to the requested discovery, it is well within the bounds of
accepted litigation practice and does not rise to the level of burdensomeness needed to foreclose
Packaging's right to its requested discovery.
6
WHEREFORE, for the foregoing reasons, Respondent Packaging Personified, Inc
.,
respectfully requests that the Board enter an Order overruling the June 28, 2006 Order of the
Hearing Officer and compelling Complainant to serve appropriate responses to Respondent's
Discovery, specifically Interrogatories 6 through 12 and Document Requests 13 through 18 .
Dated: August 29, 2006
Respectfully Submitted,
PACKAGING PERSONIFIED, INC .
Roy M . Harsch
GARDNER CARTON & DOUGLAS, LL
191 N. Wacker Drive, Suite 3700
Chicago, Illinois 60606-1698
Telephone: (312) 569-1000
Facsimile: (312) 569-3000
7
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing Motion to For Interlocutory
Appeal From Hearing Officer Order Dated June 28, 2006 Denying Respondent's Motion to
Compel Discovery was filed via hand delivery with the Clerk of the Illinois Pollution Control
Board and served upon the parties below by U .S . First Class Mail on Tuesday, August 29, 2006 .
Chicago, IL 60601
Dorothy Gunn, Clerk
Bradley P . Halloran
Christopher J . Grant
Illinois Pollution Control Board Hearing Officer
Office of the Attorney General
James R
. Thompson Center
Illinois Pollution Control Board 188 West Randolph
Suite 11-500
James R. Thompson Center
20th Floor
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Chicago, IL 60601
100 West Randolph Street
Exhibit A
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
v.
)
PCB 04-16
(Enforcement - Air)
PACKAGING PERSONIFIED, INC .,
)
Respondent .
)
RESPONDENT'S FIRST SET OF INTERROGATORIES AND REQUESTS FOR
PRODUCTION OF DOCUMENTS TO COMPLAINANT
Respondent, Packaging Personified, Inc
., by its attorneys, Gardner Carton & Douglas
LLP, submits this First Set of Interrogatories and First Request for Production of Documents to
Complainant to be answered fully in writing and under oath pursuant to Illinois Supreme Court
Rules 213 and 214 and 35 Illinois Administrative Code sections 101 .616 and 101 .620.
DEFINITIONS AND INSTRUCTIONS
I .
These Interrogatories and Document Requests are continuing so as to require
supplemental answers, as specified in Rule 213(i) of the Illinois Supreme Court Rules and the
Illinois Pollution Control Board Rule at 35 IAC 101 .616(h), if you, or any person acting on your
behalf, obtains additional information called for by the Interrogatories or Document Requests .
2.
Claim of Privilege
. If any information or documents are withheld because the
interrogatory is objected to on grounds of attorney-client privilege, work product or any other
grounds, please specify with particularity
:
(a)
The portion of the interrogatory to which the withheld information or
document is responsive
;
(b)
The parties participating in the production, conversation or creating the
document, i .e., author, originator, addressee, recipient, and copyee ;
(c)
Date of origin or preparation of the document ;
(d)
The character of the information or document and its subject matter, as
well as a summary of its contents
;
(e)
Length in pages of any relevant document
;
(0
The file in which any relevant document was located or from which it is
being withheld
;
(g)
(h)
(i)
The present location of any relevant document
;
Custodian of any relevant document ;
The number of copies of any relevant document being withheld
; and
(j)
The factual and legal basis upon which a privilege is claimed and/or any
other reason for withholding the information or document
.
3.
"Document" .
As used herein, the term "document" or "documents" is used in
the broadest possible sense, as defined in Rule 201(b)(1) of the Illinois Supreme Court Rules,
and means without limitation all written, printed, typed, photostatic, photographed, recorded,
machine readable or graphic matter, or otherwise
.reproduced communication or representation,
whether comprised of letters, words, numbers, pictures, sounds or any estimation thereof
however produced or reproduced of every kind and description in your actual or constructive
possession, custody, care or control
. Without limiting the foregoing, the term "document" shall
include the original (or copies where the original is not available) and any copy that differs from
the original or other versions or drafts of the document, such as copies containing notations,
insertions, corrections or any other variations
. Without limiting the generality of the foregoing,
"document" shall also include correspondence, letters, memoranda, accounting and financial
records, financial statements, notes, diaries, summaries, statements, financial analyses, loan
titles, computation sheets, budgets, expense reports, investigation reports, field notes, opinions,
forecasts, audits, projections, trade letters, press releases, comparisons, telegrams, drafts, work
papers, microfilm, paper and magnetic tapes, computer memory storage devices such
as floppy
disks or hard disks, sound and video recordings and transcripts of such recordings, charts,
computer cards and printouts, computer memory and data bases, e-mail or electronic mail or
messages of any kind, minutes, publications, calendars, telephone pads, bulletins, directives,
pamphlets, manuals, books diaries, periodicals, photographs, memorials of telephone
conversations or meetings or conferences, interoffice communications, records, reports, studies
estimates, contracts, amendments, and addenda to such contracts, agreements, invoices, receipts,
ledgers, books of account, analytical records, journals, logs, statistical records, costs sheets, time
sheets, photographs in job or transaction files, magazines, newspapers, booklets, brochures,
pamphlets, circulars, notices, drawings, diagrams, tables, instructions, notes of minutes,
questionnaires, surveys, graphs, and any preliminary versions of drafts of the foregoing
.
4.
"Person" .
As used herein, the term "person" or "persons" means any natural
person, sole proprietorship, firm, corporation, partnership, joint venture, group, association,
organization, trust, government or governmental agency, group or any other form of business
2
activity and any other legal entity. Any reference to a "person" shall mean that "person" and all
affiliates, divisions, controlled companies, subsidiaries or otherwise related entities and all to his,
her or its current and former officers, directors, employees, agents, representatives, attorneys,
and accountants .
5.
"Relate", As used herein, the term "relate" or "relating to" any given subject
means in whole or part constituting, containing, defining, describing, discussing, detailing,
embodying, reflecting, identifying, mentioning, stating, referring to, demonstrating, evidencing,
alleging to referring, hinting at, dealing with, underlying, supporting or in any way pertaining,
concerning or being relevant to that subject, and is meant to include, among other documents, all
documents consisting of, constituting, containing, referring to, discussing, describing,
concerning, reflecting or being legally, logically or factually connected in any way with the
matter discussed
. This term includes, but is not limited to, information underlying, supporting,
or necessary for the understanding of any document relating to each interrogatory or answer
thereto.
6.
"Communications". As used herein, the term "communication" is used in the
broadest possible sense and refers, without limiting the generality of this meaning, to any and all
forms of transferring information, including discussion, conversations, meetings, conferences,
interviews, negotiations, agreements, understandings, inquiries, discussions, contacts, proposals,
memoranda, letters, telegrams, telexes, cables, telephone calls, electronic communication, or any
other communication, or notes thereof, or document relating thereto, whether formal or informal .
7.
"Identify"
.
As used herein, the term "identify," when used with reference to an
individual natural person, means that the answer should include the full name, address and
telephone number of the person, as well as the name and address of the person's most recent
.
known employer
. When used in reference to any other legal entity, the term "identify" means
that the answer should include the most recent known name and address of that entity . When
used with reference to a document, the term "identify" means that the answer should include a
description of the nature and subject matter of the document, the dates of its preparation, the
identify of the author and recipient, and the present location of the document
. When used with
reference to any other form of communication, the term "identify" means that the answer should
include a description of the nature and subject matter of the communication, the date of the
communication, and the identity of the persons who participated in or were present at any part of
the communication
. When used with reference to facts supporting the allegation, the term
"identify" means that the answer should include every act, occurrence, transaction, statement,
communication or conduct which you claim supports the allegation and every document which
you claim supports the allegations .
8.
"Basis".
As used herein, the term "basis" shall mean that the answer should
include the specific facts and legal
or business principles which support or tend to support the
allegation made .
9. "And" and"Or". As used herein, "and" and "or" shall be construed
interchangeably so as to bring within the scope of this request any' facts which might otherwise
be construed as outside the scope .
3
10. "You" or "your"
. As used herein, the terms "you" and "your" refers to the
People of the State of Illinois by Lisa Madigan, Attorney General of the State of Illinois,
State of
Illinois employees, contractors, agents, and attorneys and any other persons acting or purporting
to act on behalf of the People of the State of Illinois
.
11 .
"Packaging Personified"
. As used herein, the term "Packaging Personified"
refers to Packaging Personified, Inc
. or any of its officers, directors, employees, contractors, or
agents.
12. "IEPA".,
As used herein, the term "IEPA" refers to the Illinois Environmental
Protection Agency or any of its current or former employees, including but not limited to
Director Renee Cipriano, Dave Kolaz, Bharat Mathur, Julie Armitage, David Bloomberg,
and
Kevin Mattison.
13 .
"IPCB" ., As used herein, the term "IPCB" refers to the Illinois Pollution Control
Board or any of its current or former employees .
14.
"USEPA".
As used herein, the term "USEPA" refers to the United States
Environmental Protection Agency or any of its current or former employees
.
15 .
"Act".
As used herein, the "Act" shall refer to the Illinois Environmental
Protection Act, 415 ILCS 5/1 et seq.
16. "Complaint" .
As used herein, the term "Complaint" shall mean the
administrative complaint filed by the Illinois Attorney General in this matter captioned
People of
the State ofIllinois v
. Packaging Personified, Inc ., PCB 04-16.
17. `NOM" or"VOC".
As used herein, the terms "VOM" and "VOC" refer
interchangeably to volatile organic material or volatile organic compounds as defined by or
under the Act .
18.
"Facility".
As used herein, the term "Facility" refers to Packaging Personified
Inc.'s
operations located at 246 Kehoe Boulevard, Carol Stream, DuPage County, Illinois .
19. "FlexographicPrinting Rules".
As used herein, the term "Flexographic Printing
Rules" refers to the IPCB rules at 35 IAC 218
.401 et seq., which regulate organic material
emissions from flexographic and rotogravure printing operations in the Chicago area
.
20. "R93-9" or "Rulemaking"
.
As used herein, the terms "R93-9" or "Rulemaking"
refers to the rulemaking before the Illinois Pollution Control Board captioned as R93-9 that
resulted in the adoption of the Flexographic Printing Rules found at 35 IAC 218 .401
et seq .
21 .
"SIP" .
As used herein, the term "SIP" refers to the USEPA-approved Illinois
State Implementation Plan for regulation under the Clean Air Act in Illinois .
4
22
. Otherterms.
As used herein, the singular shall be deemed to include the plural
;
the use of one gender shall include all genders, as appropriate in context
; and the present tense
shall include the past tense
.
23 .
"TimePeriod".
The time period referred to in these interrogatories, unless
specifically indicated to the contrary, is from January 1, 1989 to the present
.
INTERROGATORIES
1 .
Identify the person or persons providing the answers to these interrogatories, and,
for each answer, identify the information provided by each such person
.
2 .
Identify each and every basis in support of your allegations in Paragraph 5 of
Count I of the Complaint that the Facility has the potential or capacity to emit in excess of 25
tons of VOM per year" and that the Facility's "actual 2002 VOM emissions were at least 44
tons ."
3 .
Identify each and every basis in support of your allegations in Paragraphs 18 and
19 of Count V
.
4.
Identify each and every basis in support of your allegation in Paragraph 14 that
the Facility emitted more than 10 tons of VOM during the five month period from May 1 until
September 30 for each year from 1997 until the filing of the Complaint
.
5 .
Identify each and every basis in support of your allegations in Paragraphs 10, 11,
17, and 19 of Count VII of the Complaint .
6.
Identify all entities who were listed on any IPCB notice lists and service lists for
R93-9.
7.
Identify all entities who, prior to or during the pendancy of R93-9 or after
adoption of the Flexographic Printing Mules, received correspondence from or engaged in
communications with IEPA related to R93-9 or the Flexographic Printing Rules
.
5
8.
For each entity identified in response to either Interrogatory 6 or 7, provide the
following information :
a.
Identify any communications between the entity and IEPA relating to
R93-9 or the Flexographic Printing Rules .
b.
Describe the type of business, including the types of product printed, the
inks used, whether the inks used are water-based or solvent-based, and the
processes used by the entity.
b .
Identify the control equipment used by the entity to comply with the
Flexographic Printing Rules, the cost associated with the control
equipment, and the date the control equipment was employed
.
9 .
Identify each and every communication, related to clean air regulation with
respect to permitting, Flexographic Printing Rules, or emissions reduction systems, between
IEPA and the following companies
:
a.
Formel Industries, Inc .
b.
Vonco Products, Inc .
c.
Bema Film Systems, Inc .
10.
Identify each and every flexographic or rotogravure printer business in the
Chicago area, as that area is described at 35 IAC 218 .100(a) .
11 .
Identify each and every communication between USEPA and the State of Illinois
or any Illinois state agency relating to the Flexographic Printing Rules, including but not limited
to promulgation, SIP approval, and enforcement of the Flexographic Printing Rules and
variances and adjusted standards from the Flexographic Printing Rules .
6
12.
Identify each and every communication between and among IEPA, USEPA, and
the companies listed in Interrogatory 9 relating to USEPA approval as SIP revisions of the
adjusted standards from the Flexographic Printing Rules granted to those companies, captioned
before the IPCB as AS 00-11, AS 00-12, and AS 00-13 .
13.
Identify each and every basis in support of the amount of penalty you are seeking,
including but not limited to :
a.
The determination of the amount of economic benefit that you assert
Packaging Personified received as a result of the non-compliance alleged
in the Complaint .
b.
The basis for the economic benefit determination, including all
informational inputs, all formulas used, any software used to calculate the
economic benefit, and all assumptions of the economic benefit model
used.
c.
Identify the individuals involved in determining the penalty amount and
economic benefit amount .
14.
Identity all witnesses whom you intend to have testify at the hearing, including
the following information
:
a.
For each lay witness, identify the subjects on which the witness will
testify
.
b.
For each independent expert witness, identify the subjects on which the
witness will testify and opinions you expect to elicit
.
c.
For each controlled expert witness, identify
: (i) the subject matter on
which the witness will testify ; (ii) the conclusions and opinions of the
7
witness and the bases therefor
; (iii) the qualifications of the witness ; and
(iv) any reports prepared by the witness about the case .
DOCUMENT REQUESTS
I .
All documents relating to the allegations in the Complaint .
2.
All documents identified in your responses to Interrogatories 1-14 or reviewed in
the course of responding to Interrogatories 1-14 .
3 .
All documents you intend to use at any depositions in this case .
4.
All documents you intend to offer as evidence at the hearing in this case
.
5.
All documents you intend to use in any manner or for any purpose at the hearing
in this case .
6.
All photographs, models, slides, films, videotape, drawings or other depictions of
the Facility .
7.
All documents referring or relating to any communications between IEPA and
Packaging Personified .
8.
All documents relating to submittals to IEPA from Packaging Personified,
including but not limited to permit applications, reports, and other information .
9 .
All documents relating to any inspection or site visit performed at the Facility by
IEPA or any other State of Illinois employee or agency .
10.
All documents referring or relating to communications of any kind within IEPA
concerning the Facility or the allegations of the Complaint .
11 .
All documents referring or relating to communications of any kind between IEPA
and any third party concerning the Facility or the allegations of the Complaint .
8
12.
All documents relating to your computation, calculation or estimation of a penalty
for the violations alleged in the Complaint
.
13.
All documents relating to R93-9, including but not limited to comments received
during the notice-and-comment period .
14
.
All documents relating to R93-9 provided by IEPA to Packaging Personified
either before the Rulemaking, during the pendancy of R93-9, or after adoption of the
Flexographic Printing Rules
.
15.
All documents relating to any notice provided by the IPCB to Packaging
Personified related to R93-9.
16.
All documents relating to the following Adjusted Standard Petitions before the
IPCB :
a.
In the Matter of Petition of Formel Industries, Inc
. for an Adjusted
Standard, AS 00-13
b.
In the Matter of Petition of Vonco Products, Inc
. for an Adjusted Standard,
AS 00-12
c.
In the Matter of Petition of Bema Film Systems, Inc
. for an Adjusted
Standard, AS 00-11
16.
All documents relating to the following Petitions for Variance from the
Flexographic Printing Rules before the IPCB :
a.
Formel Industries, Inc ., PCB 99-165
b.
Vonco Products, Inc ., PCB 99-167
c.
Bema Film Systems, Inc ., PCB 9-170
9
17 . All documents relating to the Flexographic Printing Rules, including but not
limited to promulgation of the Flexographic Printing Rules, variances and adjusted standards
from the Flexographic Printing Rules, and enforcement of the Flexographic Printing Rules by
USEPA, the State of Illinois, or any other entity with administrative or judicial enforcement
authority with respect to the Flexographic Printing Rules
.
18.
All documents relating to USEPA approval as SIP revisions of the adjusted
standards cited in Document Request 16 .
Respectfully submitted,
Dated: January 14, 2005
PACKAGING PERSONIFIED, INC.
GARDNER CARTON & DOUGLAS LLP
Roy M . Harsch
Steven J . Murawski
Sasha M
. Engle
191 N. Wacker Drive Suite 3700
Chicago, IL 60606-1698
Telephone: (312) 569-1000
Facsimile: (312) 569-3000
CH02/ 22359460 .1
By: A
~~L~eof
its attome
10
CERTIFICATE OF SERVICE
I, Sasha M . Engle, an attorney in the law firm of Gardner, Carton & Douglas, certify that
a copy of the foregoing
RESPONDENT'S FIRST SET OF INTERROGATORIES AND
REQUESTS FOR PRODUCTION OF DOCUMENTS TO COMPLAINANT was served
upon:
Christopher Grant
Assistant Attorney General
Environmental Bureau
188 West Randolph Street
20`h Floor
Chicago, IL 60601
by First-Class U .S
. mail on this 14th day of January, 2005 .
CH02/ 22359460
.1
II
Exhibit
B
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
v.
)
PCB 04-16
(Enforcement - Air)
PACKAGING PERSONIFIED, INC .,
)
Respondent.
)
COMPLAINANT'S RESPONSES TO RESPONDENT'S FIRST SET OF
INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney
General of the State of Illinois, responds to Respondent's First Set of Interrogatories and First
Request for Production of Documents, as follows:
DEFINITIONS AND INSTRUCTIONS
2.
Claim of Privilege . If any information or documents are withheld
because the interrogatory is objected to on grounds of attorney-client privilege, work product or
any other grounds, please specify with particularity :
(a)
The portion of the interrogatory to which the withheld information or
document is responsive ;
(b)
The parties participating in the production, conversation or creating the
document, i .e., author, originator, addressee, recipient, and copyee
;
(c)
Date of origin or preparation of the document
;
(d)
The character of the information or document and its subject matter, as
well as a summary of its contents ;
(e)
Length in pages of any relevant document;
(I)
The file in which any relevant document was located or from which it is
being withheld ;
(g)
The present location of any relevant document
;
1
(h)
Custodian of any relevant document
;
(i)
The number of copies of any relevant document being withheld
; and
(j)
The factual and legal basis upon which a privilege is claimed and/or any
other reason for withholding the information or document
.
3 .
"Document" .
As used herein, the term "document" or "documents" is used in
the broadest possible sense, as defined in Rule 201(b)(1) of the Illinois Supreme Court Rules,
and means without limitation all written, printed, typed, photostatic, photographed, recorded,
machine readable or graphic matter, or otherwise reproduced communication or representation,
whether comprised of letters, words, numbers, pictures, sounds or any estimation thereof
however produced or reproduced of every kind and description in your actual or constructive
possession, custody, care or control
. Without limiting the foregoing, the term "document" shall
include the original (or copies where the original is not available) and any copy that differs from
the original or other versions or drafts of the document, such as copies containing notations,
insertions, corrections or any other variations
. Without limiting the generality of the foregoing,
"document" shall also include correspondence, letters, memoranda, accounting and financial
records, financial statements, notes, diaries, summaries, statements, financial analyses, loan
titles, computation sheets, budgets, expense reports, investigation reports, field notes, opinions,
forecasts, audits, projections, trade letters, press releases, comparisons, telegrams, drafts, work
papers, microfilm, paper and magnetic tapes, computer memory storage devices such as floppy
disks or hard disks, sound and video recordings and transcripts of such recordings, charts,
computer cards and printouts, computer memory and data bases, e-mail or electronic mail or
messages of any kind, minutes, publications, calendars, telephone pads, bulletins, directives,
pamphlets, manuals, books
diaries, periodicals, photographs,
memorials of telephone
conversations or meetings or conferences, interoffice communications, records, reports, studies
estimates, contracts, amendments, and addenda to such contracts, agreements, invoices, receipts,
ledgers, books of account, analytical records, journals, logs, statistical records, costs sheets, time
sheets, photographs in job or transaction files, magazines, newspapers, booklets, brochures,
pamphlets, circulars, notices, drawings, diagrams, tables, instructions, notes of minutes,
questionnaires, surveys, graphs, and any preliminary versions of drafts of the foregoing
.
4.
"Person" .
As used herein, the term "person" or "persons" means any natural
person, sole proprietorship, firm, corporation, partnership, joint venture, group, association,
organization, trust, government or governmental agency, group or any other form of business
activity and any other legal entity
. Any reference to a "person" shall mean that "person" and all
affiliates, divisions, controlled companies, subsidiaries or otherwise related entities and all to his,
her or its current and former officers, directors, employees, agents, representatives, attorneys,
and accountants
.
5.
"Relate".
As used herein, the term "relate" or "relating to" any given subject
means in whole or part constituting, containing, defining, describing, discussing, detailing,
embodying, reflecting, identifying, mentioning, stating, referring to, demonstrating, evidencing,
alleging to referring, hinting at, dealing with, underlying, supporting or in any way pertaining,
concerning or being relevant to that subject, and is meant to include, among other documents, all
2
documents consisting
of, constituting, containing, referring to, discussing,
describing,
concerning, reflecting or being legally, logically or factually connected in any way with the
matter discussed
. This term includes, but is not limited to, information underlying, supporting,
or necessary for the understanding of any document relating to each interrogatory or answer
thereto.
6 .
"Communications".
As used herein, the term "communication" is used in the
broadest possible sense and refers, without limiting the generality of this meaning, to any and all
forms of transferring information, including discussion, conversations, meetings, conferences,
interviews, negotiations, agreements, understandings, inquiries, discussions, contacts, proposals,
memoranda, letters, telegrams, telexes, cables, telephone calls, electronic communication, or any
other communication, or notes thereof, or document relating thereto, whether formal or informal .
7.
"Identify"
.
As used herein, the term "identify," when used with reference to an
individual natural person, means that the answer should include the full name, address and
telephone number of the person, as well
as the name and address of the person's most recent
known employer. When used in reference to any other legal entity, the term "identify" means
that the answer should include the most recent known name and address of that entity
. When
used with reference to a document, the term "identify" means that the answer should include a
description of the nature and subject matter of the document, the dates of its preparation, the
identify of the author and recipient, and the present location of the document
. When used with
reference to any other form of communication, the term "identify" means that the answer should
include a description of the nature and subject matter of the communication, the date of the
communication, and the identity of the persons who participated in or were present at any part of
the communication . When used with reference to facts supporting the allegation, the term
"identify" means that the answer should include every act, occurrence, transaction, statement,
communication or conduct which you claim supports the allegation and every document which
you claim supports the allegations .
8 .
"Basis"
.
As used herein, the term "basis" shall mean that the answer should
include the specific facts and legal or business principles which support or tend to support the
allegation made .
9. "And" and"Or".
As used herein, "and" and "or" shall be construed
interchangeably so as
to bring within the scope of this request any facts which might otherwise
be construed as outside the scope
.
10. "You" or "your" . As used herein, the terms "you" and "your" refers to the
People of the State of Illinois by Lisa Madigan, Attorney General of the State of Illinois, State of
Illinois employees, contractors, agents, and attorneys and any other persons acting or purporting
to act on behalf of the People of the State of Illinois .
11
.
"Packaging Personified" . As used herein, the term "Packaging Personified"
refers to Packaging Personified, Inc . or any of its officers, directors, employees, contractors, or
agents
.
3
12
.
"IEPA"
.
As used herein, the tern "IEPA" refers to the Illinois Environmental
Protection Agency or any of its current or former employees, including but not limited to
Director Renee Cipriano, Dave Kolaz, Bharat Mathur, Julie Armitage, David Bloomberg, and
Kevin Mattison
.
13 .
"IPCB"., As used herein, the term "IPCB" refers to the Illinois Pollution Control
Board or any of its current or former employees
.
14.
"USEPA". As used herein, the term "USEPA" refers to the United States
Environmental Protection Agency or any of its current or former employees .
15 .
"Act". As used herein, the "Act" shall refer to the Illinois Environmental
Protection Act, 415 ILCS 5/1 et seq .
16 .
"Complaint". As used herein, the term "Complaint" shall mean the
administrative complaint filed by the Illinois Attorney General in this matter captioned People of
the State oflllinois v
. Packaging Personified, Inc.,
PCB 04-16 .
17 . "NOM" or"VOC". As used herein, the terms "VOM" and "VOC" refer
interchangeably to volatile organic material or volatile organic compounds as defined by or
under the Act.
18 .
"Facility". As used herein, the term "Facility" refers to Packaging Personified
Inc.'s operations located at 246 Kehoe Boulevard, Carol Stream, DuPage County, Illinois
.
19
. "Flexographic Printing Rules". As used herein, the term "Flexographic
Printing Rules" refers to the IPCB rules at 35 IAC 218 .401 et seq., which regulate organic
material emissions from flexographic and rotogravure printing operations in the Chicago area .
20. "R93-9" or "Rulemaking" . As used herein, the terms "R93-9" or "Rulemaking"
refers to the rulemaking before the Illinois Pollution Control Board captioned as R93-9 that
resulted in the adoption .of the Flexographic Printing Rules found at 35 IAC 218 .401 et seq .
21 .
"SIP". As used herein, the term "SIP" refers to the USEPA-approved Illinois
State Implementation Plan for regulation under the Clean Air Act in Illinois .
22 . Other terms . As used herein, the singular shall be deemed to include the plural ;
the use of one gender shall include all genders, as appropriate in context ; and the present tense
shall include the past tense .
23 .
"Time Period". . The time period referred to in these interrogatories, unless
specifically indicated to the contrary, is from January 1, 1989 to the present .
4
COMPLAINANT'S GENERAL OBJECTIONS
Complainant objects to Respondent's Interrogatories and Document Request to the extent
that Respondents seek information protected by attorney client, work product, or other legally
recognized privilege .
In addition Complainant objects to "Definitions and Instructions",
paragraphs 2, 3, 6, 7, 8, to the extent that they may be construed as overbroad, overly
burdensome, or that they seek the production of information neither relevant nor material to this
matter.
INTERROGATORIES
l .
Identify the person or persons providing the answers to these Interrogatories,
and, for each answer, identify the information provided by each such person
.
ANSWER:
David Bloomberg, Unit Manager, Illinois EPA Bureau of Air, Springfield, Illinois
:
Interrogatories No . 1, 2, 4, and 14 .
Maureen Wozniak, Illinois EPA Division of Legal Counsel : Interrogatories No . 1, 2, 4,
13, and 14 .
Christopher Grant, Attorney for Complainant, assisted and provided the answers to
Interrogatories No.'s 3, and 5 through 12 .
2.
identify each and every basis in support ofyour
allegations in Paragraph 5 of
Count I of the Complaint that the Facility has the potential or capacity to emit in excess of 25
tons of VOM per year" and that the Facility's "actual 2002 VOM emissions were at least 44
tons. "
ANSWER:
5
Complainant objects on the basis that the meaning of the phrase "
. . .each and every basis"
is ambiguous and vague. Further answering, operational information and emissions data, in part
contained within annual emission reports (AERs), Seasonal Emissions Reports (SERs), permit
applications, compliance commitment agreement (CCA), and communications received by the
Illinois EPA from Packaging Personified, Inc ., document that the Facility has the potential to
emit VOM at levels in excess of the major source threshold specified by the Act and Board's
regulations thereunder for the Chicago nonattainment area
. In addition, Illinois EPA inspection
memoranda setting forth observations by the Illinois EPA resulting from inspections of the
Facility, violation notice letters (VNs), and documents generated by the Illinois EPA relative to
VOM emissions by the Facility in excess of 25 tons/year in violation of the Act and Board
regulations by Respondent further support violations that are the subject of the State's complaint .
Documents upon which the State will rely have been provided in response to Respondent's
document requests 1 through 12, and 17
. Investigation into these matters continues .
3.
Identify each and every basis in support ofyour allegations in Paragraphs 18 and
19 of Count V.
ANSWER:
Complainant objects to Interrogatory No . 3. The Interrogatory is improper in form . It is
vague, overbroad, and requires Complainant to speculate as to the information sought by
Respondent.
4.
Identify each and every basis in support ofyour allegation in Paragraph 14 that
the Facility emitted more than 10 tons of VOM during the five month period from May I until
September 30 for each year from 1997 until the filing of the Complaint .
ANSWER
:
6
Complainant objects insofar as the meaning of the phrase "
. .
.each and every basis" is
ambiguous and vague
. Further answering, operational information and emissions data, in part
contained with AERs, SERs, permit applications, CCAs, and communications received by the
Illinois EPA from Packaging Personified, Inc
., document actual and/or potential VOM
emissions of at least 10 tons, the threshold for a participating source under the Emissions
Reduction Market System, during the period of May I to September 30 each year from 1999
until the present
. Documents upon which the State will rely have been provided in response to
Respondent's document requests I through 12 and 17
5.
Identify each and every basis in support ofyour
allegations in Paragraphs 10, 11,
17, and 19 of Count VII of the Complaint.
ANSWER:
Complainant objects to Interrogatory No
. 5 . The Interrogatory is improper in form
. It is
vague, overbroad, and requires Complainant to speculate
as
to the information sought by
Respondent .
6.
Identify all entities who were listed on any IPCB notice lists and service lists for
R93-9.
ANSWER:
Complainant objects to Interrogatory No
. 6 as it seeks information that is immaterial,
irrelevant, and not reasonably calculated to lead to relevant information
. The promulgation of
this section of 35 111 . Adm
. Code, and R93-9 as herein defined, does not relate to any claim or
defense in the instant case .
7
7.
Identify all entities who, prior to or during the pendancy of R93-9 or after
adoption of the Flexographic Printing Rules, received correspondence from or engaged in
communications with IEPA related to R93-9 or the Flexographic Printing Rules
.
ANSWER:
Complainant objects to Interrogatory No
. 7 as it seeks information that is immaterial,
irrelevant, and not reasonably calculated to lead to relevant information
. Neither the
promulgation of the Flexographic Printing Rules nor the identity of correspondents, other than
the Respondent, relates to any claim or defense in the instant case
.
8.
For each entity identified in response to either Interrogatory 6 or 7, provide the
following information :
ANSWER:
a.
Identify any communications between the entity and IEPA relating to R93-
9 or the Flexographic Printing Rules
.
b
. Describe the type of business, including the types
of
product printed, the
inks used, whether the inks used are water-based or solvent-based, and
the processes used by the entity
.
b
.
Identify the control equipment used by the entity to comply with the
Flexographic Printing Rules, the cost associated with the control
equipment, and the date the control equipment was employed
.
Plaintiff objects to Interrogatory No
.8 as immaterial and irrelevant . See: Answers to
Interrogatories 6 and 7
. Nothing in the information sought in Interrogatory No
. 8 relates to any
claim or defense in the instant case
. Moreover, Interrogatory No
. 8 is overly burdensome.
Obtaining the requested information would require Complainant to search thousands of records,
and assemble information not regularly kept in the course of its operations
.
9.
Identify each and every communication, related to clean air regulation with
respect to permitting, Flexographic Printing Rules, or emissions reduction systems, between
IEPA and the following companies:
8
a.
Formel Industries, Inc.
b.
Vonco Products, Inc.
c.
Bema Film Systems, Inc .
ANSWER:
Complainant objects to Interrogatory No . 9 as it seeks information that is immaterial,
irrelevant, and not reasonably calculated to lead to relevant information
. Correspondence
between Complainant and the above-listed entities does not relate to any claim or defense in this
matter.
10.
Identify each and every flexographic or rotogravure printer business in the
Chicago area, as that area is described at 35 IAC 218 .100(a) .
ANSWER:
Complainant objects to Interrogatory No . 10 as it seeks information that is immaterial,
irrelevant, not reasonably calculated to lead to relevant information, and is overly burdensome .
11.
Identify each and every communication between USEPA and the State of Illinois
or any Illinois state agency relating to the Flexographic Printing Rules, including but not limited
to promulgation, SIP approval, and enforcement of the Flexographic Printing Rules and
variances and adjusted standards from the Flexographic Printing Rules .
ANSWER:
Complainant objects to Interrogatory No . I I as it seeks information that is immaterial,
irrelevant, and not reasonably calculated to lead to relevant information
. The information
sought does not relate in any way to the claims or defenses in the instant matter .
12.
Identify each and every communication between and among IEPA, USEPA, and
the companies listed in Interrogatory 9 relating to USEPA approval as SIP revisions of the
9
adjusted standards from the Flexographic Printing Rules granted to those companies, captioned
before the JPCB as AS 00-11, AS 00-12, and AS 00-13
.
ANSWER:
Complainant objects to Interrogatory No
. 12 as it seeks information that is immaterial,
irrelevant, and not reasonably calculated to lead to relevant information . The information
sought does not relate in any way to any claim or defense in the instant matter .
13.
Identify each and every basis in support ofthe amount ofpenalty you are seeking,
including but not limited to :
a.
The determination ofthe amount of economic benefit that you assert
Packaging Personified received as a result ofthe non-compliance alleged
in the Complaint.
b.
The basis for the economic benefit determination, including all
informational inputs, all formulas used, any software used to calculate the
economic benefit, and all assumptions ofthe economic benefit model used .
c.
Identify the individuals involved in determining the penalty amount and
economic benefit amount .
ANSWER:
Complainant objects insofar as the meaning of the phrase " . . .each and every basis" is
ambiguous, vague and not defined. Further answering, Complainant has not yet determined the
penalty it will ask the Board to assess in this matter. Complainant notes that penalties sought are
found it the prayer for relief in each count of the Complaint, and that Statutory penalties are
contained in 415 ILCS 5/42 (2002) . Additional counts may be added by amendment, which will
increase the amount of penalties sought by Complainant . Complainant may also seek avoided/
past due costs and fees, expert witness cost and attorney fees . The amount of these costs and
fees is not yet determined .
a.
Complainant will seek from Packaging Personified, Inc . a civil penalty, in part,
representative of the economic benefit of noncompliance (BEN) derived by Respondent from
10
violations of New Source Review (NSR) and State permitting requirements, the Illinois
Environmental Protection Act, and Pollution Control Board regulations thereunder alleged in the
State's Complaint
. Using USEPA's BEN Windows Computer Model, Illinois EPA originally
estimated Respondent's BEN at approximately $585,000
.00
. However, Illinois EPA will not
rely upon the BEN computer model in preparation for and at hearing in this matter
.
Accordingly, the civil penalty the State will seek is subject to revision dependant upon the
economic benefit analysis and specific methodology Complainant will utilize at hearing,
additional information received by Complainant relative to compliance costs, and the gravity of
violations that are the subject of the State's Complaint
. The Illinois EPA will determine the
economic benefit of noncompliance based upon an economic benefit analysis performed by
Illinois Office of Internal Audit, Audit Manager, Gary Styzens .
b.
The Illinois EPA used the USEPA's BEN Model as the basis for its initial penalty
calculation
. Inputs and assumptions used in the model were based upon information provided by
the Facility, and are set forth within the BEN calculation sheet provided in response to
Respondent's document requests
. However, the Illinois EPA does not intend to rely on the BEN
Model as support for its penalty calculation ; rather, Mr
. Gary Styzens will perform an
independent economic benefit analysis .
c . Complainant objects on the basis that the Board, not Complainant, assesses
appropriate penalties, using pertinent provisions within the Act
. Further answering, the
Following persons were involved in determining Economic Benefit
:
Maureen Wozniak
.
Assistant Counsel
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
11
Julie Armitage
Managing Attorney
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
Christopher Grant
Assistant Attorney General
The economic benefit derived by Respondent resulting from noncompliance with the Act
and Board regulations thereunder was calculated by Illinois EPA Assistant Counsel Maureen
Wozniak utilizing the USEPA BEN Windows computer model and compliance cost data
received by Illinois EPA from Respondent to facilitate settlement discussions
.
This interrogatory will be supplemented as appropriate .
14.
Identity all witnesses whom you intend to have testify at the hearing, including the
following information :
a.
For each lay witness, identify the subjects on which the witness will testify.
b.
For each independent expert witness, identify the subjects on which the
witness will testify and opinions you expect to elicit.
c.
For each controlled expert witness, identify : (i) the subject matter on
which the witness will testify
; (ii) the conclusions and opinions ofthe
witness and the bases therefor; (iii) the qualifications ofthe witness ; and
(iv) any reports prepared by the witness about the case
.
ANSWER:
a.
David Bloomberg, Compliance Unit Manager/Bureau of Air; Illinois EPA
Springfield, Illinois . Mr. Bloomberg will offer testimony on the Emissions Reduction Market
System (ERMS) and NSR requirements ; flexographic printing, in general
; applicable regulatory
provisions ; the Facility's compliance with the applicable regulatory provisions
; and other
specific information regarding the Facility .
12
b.
As of the date of Answering these Interrogatories, Complainant has not identified
expert witnesses that will be called to testify, and opinions have not been obtained .
c.
At the present, the State has not identified a controlled expert witness that will be
called to testify at hearing, with the exception of Mr. Gary Styzens . Mr. Styzens will offer
testimony that provides an analysis of the time value of money specifically pertaining to
economic benefits derived by Packaging Personified, Inc . resulting from costs avoided and/or
delayed resulting from its failure to operate in compliance with the Act and Board regulations
thereunder. Gary Styzens has not, to date, finalized an economic benefit analysis or generated
reports setting forth opinions and conclusions based upon his review of all pertinent information
relative to Packaging Personified .
The State will seasonably supplement this Answer consistent with Supreme Court Rule
213 and 35 111 . Adm
. Code 101 .616
.
DOCUMENT REQUESTS
1.
All documents relating to the allegations in the Complaint .
RESPONSE:
Complainant objects the Document Request No . I as being overly vague .
2.
All documents identified in your responses to Interrogatories 1-14 or reviewed in
the course of responding to Interrogatories 1-14
.
RESPONSE :
See: Answers to Interrogatories No . 1 through 14, and objections thereto, which are
incorporated by reference into this Response . Complainant will produce relevant, non-
privileged documents at a time agreed between the parties . Documents will be produced at 188
13
W . Randolph, #2001, Chicago Illinois, and 1021 N
. Grand Avenue East, Springfield, Illinois .
Complainant will consult with Respondent regarding the location of production
.
3.
All documents you intend to use at any depositions in this case .
RESPONSE :
Complainant does not currently have depositions scheduled, and does not have
documents selected for deposition . This Response will be supplemented as required .
4.
All documents you intend to offer as evidence at the hearing in this case .
RESPONSE :
Complainant does not yet have documents selected for use at hearing, and will
supplement this Response as required .
5.
All documents you intend 'to use in any manner or for any purpose at the hearing
in this case.
RESPONSE :
Complainant objects to Document Request No
. 5 as overly vague . See: Response to
Document Request No . 4
.
6.
All photographs, models, slides, films, videotape, drawings or other depictions of
the Facility.
RESPONSE:
Complainant will produce responsive photographs, etc ., at a time agreed between the
parties. Documents will be produced at 188 W
. Randolph, #2001, Chicago Illinois, and 1021 N .
Grand Avenue East, Springfield, Illinois
. Complainant will consult with Respondent regarding
the location of production .
14
7.
All documents referring or relating to any communications between IEPA and
Packaging Personified
.
RESPONSE:
Complainant will produce relevant, non-privileged documents at a time agreed between
the parties
. Documents will be produced at 188 W
. Randolph, #2001, Chicago Illinois, and 1021
N
. Grand Avenue East, Springfield, Illinois . Complainant will consult with Respondent
regarding the location of production .
8.
All documents relating to submittals to IEPA from Packaging Personified,
including but not limited to permit applications, reports, and other information .
RESPONSE:
Complainant objects on the basis that the requested documents are already in the
possession of Respondent . Further Answering, Complainant will produce relevant, non-
privileged documents at a time agreed between the parties . Documents will be produced at 188
W. Randolph, #2001, Chicago Illinois, and 1021 N . Grand Avenue East, Springfield, Illinois .
Complainant will consult with Respondent regarding the location of production .
9.
All documents relating to any inspection or site visit performed at the Facility by
IEPA or any other State of Illinois employee or agency.
RESPONSE:
Complainant will produce relevant, non-privileged documents at a time agreed between
the parties . Documents will be produced at 188 W . Randolph, #2001, Chicago Illinois, and 1021
N
. Grand Avenue East, Springfield, Illinois . Complainant will consult with Respondent
regarding the location of production .
15
10.
All documents referring or relating to communications of any kind within IEPA
concerning the Facility or the allegations of the Complaint
.
RESPONSE
:
Complainant objects to Document Request No
. 10 as overly vague . Further answering,
Complainant will produce relevant, non-privileged documents at a time agreed between the
parties. Documents will be produced at 188 W
. Randolph, #2001, Chicago Illinois, and 1021 N .
Grand Avenue East, Springfield, Illinois
. Complainant will consult with Respondent regarding
the location of production .
11.
All documents referring or relating to communications of any kind between IEPA
and any third party concerning the Facility or the allegations of the Complaint.
RESPONSE:
Complainant objects to Document Request no . 11 as overly vague
. Further answering,
Complainant will produce relevant, non-privileged documents at a time agreed between the
parties. Documents will be produced at 188 W
. Randolph, #2001, Chicago Illinois, and 1021 N .
Grand Avenue East, Springfield, Illinois
. Complainant will consult with Respondent regarding
the location of production .
12.
All documents relating to your computation, calculation or estimation of a
penalty for the violations alleged in the Complaint .
RESPONSE:
Complainant will produce relevant, non-privileged documents at a time agreed between
the parties . Documents will be produced at 188 W
. Randolph, #2001, Chicago Illinois, and 1021
N. Grand Avenue East, Springfield, Illinois . Complainant will consult with Respondent
regarding the location of production .
16
13.
All documents relating to R93-9, including but not limited to comments received
during the notice-and-comment period.
RESPONSE :
Complainant objects to Document Request No
. 13 as it seeks information that is
immaterial, irrelevant, and not reasonably calculated to lead to relevant information
. The
proceedings of R93-9, and promulgation of the Flexographic Printing Rules do not relate to any
claim or defense in this matter
. Moreover, Respondent's request is overly burdensome .
14.
All documents relating to R93-9 provided by IEPA to Packaging Personified
either before the Rulemaking, during the pendancy of R93-9, or after adoption of the
Flexographic Printing Rules
.
RESPONSE :
Complainant objects to Document Request No
. 14 to the extent that it seeks information
that is immaterial and irrelevant to the instant case
. Complainant also objects on the basis that
any responsive documents are is already in the possession of Respondent
. Further answering,
Complainant will produce relevant, non-privileged documents at a time agreed between the
parties
. Documents will be produced at 188 W
. Randolph, #2001, Chicago Illinois, and 1021 N .
Grand Avenue East, Springfield, Illinois
. Complainant will consult with Respondent regarding
the location of production .
15.
All documents relating to any notice provided by the IPCB to Packaging
Personified related to R93-9 .
RESPONSE:
17
Complainant objects to Document Request No
.] 5 as vague, and that it seeks information
that is immaterial, irrelevant, and not reasonably calculated to lead to relevant information . See
:
Response to Document Request No
. 14.
16
.
All documents relating to the following Adjusted Standard Petitions before the
IPCB:
a.
In the Matter of Petition of Formel Industries, Inc . for an Adjusted
Standard, AS 00-13
b.
In the Matter of Petition of Vonco Products, Inc . for an Adjusted
Standard, AS 00-12
c.
In the Matter of Petition of Bema Film Systems, Inc . for an Adjusted
Standard, AS 00-11
RESPONSE:
Complainant objects to Document Request No . 16 as it seeks information that is
immaterial, irrelevant, and not reasonably calculated to lead to relevant information . Adjusted
Standard petitions filed by third parties in an unrelated Board matter have no relation to the
instant case
.
16. [Sic] All documents relating to the following Petitions for Variance from the
Flexographic Printing Rules before the IPCB :
a .
b.
c.
Formel Industries, Inc., PCB 99-165
Vonco Products, Inc.,
PCB 99-167
Bema Film Systems, Inc ., PCB 9-170
RESPONSE:
Complainant objects to this document request as it seeks documents that are immaterial,
irrelevant, and not reasonably calculated to lead to relevant information . See
: Response to
Document Request No . 16 [above] .
17.
All documents relating to the Flexographic Printing Rules, including but not
limited to promulgation of the Flexographic Printing Rules, variances and adjusted standards
18
from the Flexographic Printing Rules, and enforcement of the Flexographic Printing Rules by
USEPA, the State of Illinois, or any other entity with administrative or judicial enforcement
authority with respect to the Flexographic Printing Rules .
RESPONSE :
Complainant objects to Document Request No. 17 as
it seeks information that is
immaterial, irrelevant, and not reasonably calculated to lead to relevant information
. Further
objecting, Respondent's request is highly oppressive and overly burdensome
.
18.
All documents relating to USEPA approval as SIP revisions of the adjusted
standards cited in Document Request 16.
RESPONSE :
Complainant objects to Document Request No . 18 as it seeks information that is
immaterial, irrelevant, and not reasonably calculated to lead to relevant information in the instant
case.
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General of the State
of Illinois,
J. DUNN, C ief
ntal Enforcem nt Division
19
By:
A
U
CH OPHER GRANT
Assist
t Attorney General
Env nmental Bureau
188 W. Randolph Street, 20`h Fl .
Chicago, Illinois 60601
(312) 814-5388
David
IXBloomber
P
VERIFICATION
I, David Bloomberg, Bureau of Air Compliance Unit Manager for the Illinois Environmental
Protection Agency, depose and state, that I have read the attached Responses to Respondent's
First Set of Interrogatories and Request for the Production of Documents, and that the answers to
Interrogatories 1, 2, 4, and 14 are true and correct, to the best of my knowledge and belief
SUBSCRIBE AND SWORN-TO BEFORE
me this 1 DAY OF
, 2005
FFICIAI, SEAL"
Vicky Vonlanken
MN o" n~p11vi s
SUBSCRIBED AND SWO TO BEFORE
me this
/A DAY
OF 2005
p
fAA /i/ii .//
VERIFICATION
I, Maureen Wozniak, Assistant Counsel for the Illinois Environmental Protection Agency, depose
and state, that I have read the attached Responses to Respondent's First Set of Interrogatories and
Request for the Production of Documents, and that the answers to Interrogatories 1, 2, 4, 13, and
14 are true and correct, and that the production of documents is complete, to the best of my
knowledge and belief.
I'NI/t
00m)
M
ELknfm
azn
"
iak
4.
'OFFICIAL SEAL'
Vicky Vtn lanken
Nowy Pow &me ar Illinois
MY
iF*OilW2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
vs .
PCB 04-16
PACKAGING PERSONIFIED, INC .,
(Enforcement)
an Illinois corporation,
Respondent .
CERTIFICATE OF SERVICE
I, CHRISTOPHER GRANT, an attorney, do certify that I caused
to be served this 18" day of March, 2005, Complainant's
Responses to Respondent's First Set of Interrogatories and
Requests for the Production of Documents, upon he person listed
below, by hand delivery .
i
Service List :
Mr . Roy Harsch
Gardner Carton Douglas LLP
191 N . Wacker Drive, Suite 3700
Chicago Illinois 60602
CHRISTOPHER GRANT
Exhibit C
4
ILLINOIS POLLUTION CONTROL BOARD
June 28, 2006
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
v .
)
PCB 04-16
(Enforcement - Air)
PACKAGING PERSONIFIED, INC ., an
)
Illinois corporation,
)
Respondent .
)
HEARING OFFICER ORDER
On January 31, 2006, the respondent filed a motion to compel responses to written
discovery . On February 16, 2006, complainant filed its response . On April 12, 2006, the
respondent filed a motion for leave to file instanter and reply in support of respondent's motion
to compel
. Complainant has not filed a response to respondent's motion for leave to file or to the
reply itself. Respondent's motion is granted
. The parties represented at various telephonic
status conferences with the hearing officer that they have been attempting to resolve the
discovery issue but they are at an impasse .
Motion To Compel
In respondent's motion to compel, respondent alleges that the complainant refused to
provide the discovery requested in Interrogatories 6 through 12 and Document Requests 13
through 18
. Respondent's motion to compel was not accompanied by a copy of the
interrogatories as required by Section 101
.622 of the Board's procedural rules . Respondent
instead provides a summary of the requested information, which is insufficient . Complainant,
however, attached a copy of the interrogatories in question to its response .
Interrogatory 6 . Identify all entities who were listed on any IPCB notice lists and service
lists for R93-9 .
Interrogatory 7 . Identify all entities who, prior to or during the pendancy of R93-9 or
after adoption of the Flexographic Printing Rules, received correspondence from or engaged in
communications with the IEPA related to R93-9 or the Flexographic Printing Rules
.
Interrogatory 8
. For each entity identified in response to either Interrogatory 6 or 7,
provide the following information
:
a
. Identify any communication between the entity and IEPA relating to R93-9 or
the Flexographic Printing Rules .
4
b. Describe the type of business, including the types of product printed, the inks
used, whether the inks used are water-based or solvent-based, and the
processes used by the entity .
c. Identify the control equipment used by the entity to comply with the
Flexographic Printing Rules, the cost associated with the control equipment,
and the date the control equipment was employed .
Interrogatory 9. Identify each and every communication related to clean air regulation
with respect to permitting, Flexogragic Printing Rules, or emissions reduction systems, between
IEPA and the following companies
:
a. Formel Industries, Inc
.
b
. Vonco Products, Inc .
c
. Bema Film Systems, Inc .
Interrogatory 10 . Identify each and every flexographic or rotogravure printer business in
the Chicago area, as that is described at 35 IAC 218 .100(a) .
Interrogatory 11 . Identify each and every communication between USEPA and the State
of Illinois or any Illinois state agency relating to the Flexographic Printing Rules, including but
not limited to promulgation, SIP approval, and enforcement of the Flexographic Printing Rules
and variances and adjusted standards from the Flexographic Printing Rules .
Interrogatory 12. Identify each and every communication between and among IEPA,
USEPA, and the companies listed in Interrogatory 9 relating to USEPA approval as SIP
revisions of the adjusted standards from the Flexographic Printing Rules granted to those
companies, captioned before the IPCB as AS 00-I l, AS 00-12, and AS 00-13 .
Document Request 13 . All documents relating to R93-9, including but not limited to
comments received during the notice-and-comment period .
Document Request 14. All documents relating to R93-9 provided by IEPA to Packaging
Personified either before the Rulemaking, during the pendancy of R93-9, or after adoption of
Flexographic Printing Rules .
Document Request 15 . All documents relating to any notice provided by the IPCB to
Packaging Personified related to R93-9 .
Document Request 16. All documents relating to the following Adjusted Standard
Petitions before the IPCB :
a. In the Matter of Petition of Formel Industries, Inc . for an Adjusted Standard,
AS 00-13
b
. In the Matter of Petition of Vonco Products, Inc
. for an Adjusted Standard,
AS 00-12
c. In the Matter of Petition of Bema Film Systems, Inc . for an Adjusted
Standard, AS 00-11
Document Request 16 [sic] . All documents relating to the following Petitions for
Variance from the Flexographic Printing Rules before the IPCB :
a
. Formel Industries, Inc ., PCB 99-165
b. Vonco Products, Inc., PCB 99-167
c. Bema Film Systems, Inc ., PCB 99-170
Document Request 17. All documents relating to the Flexographic Printing Rules,
including but not limited to promulgation of the Flexographic Printing Rules, variances and
adjusted standards from the Flexographic Printing Rules, and enforcement of the Flexographic
4
Printing Rules by the USEPA, the State of Illinois, or any other entity with administrative or
judicial enforcement authority with respect to the Flexographic Printing rules .
Document Request 18
. All documents relating to USEPA approval as SIP revisions of the
adjusted standards cited in Document Request 16 .
Complainant's Response
In summary, the complainant objects to each of these interrogatories and document
requests as irrelevant, immaterial and/or overly burdensome
.
Discussion
Section 101
.616 of the Board's procedural rules state that all relevant information and
information calculated to lead to relevant information is discoverable
.
The rulemaking process itself is immaterial and irrelevant to the violations alleged in the
complaint at bar
. Moreover, the requested information would be overly burdensome to the
complainant,
denied.
much of which is in the Board's public file
. Respondent's motion to compel is
IT IS SO ORDERED .
Bradley P . Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
312.814.8917
4
CERTIFICATE OF SERVICE
It is hereby certified that true copies of the foregoing order were mailed, first class, on
June 29, 2006, to each of the persons on the attached service list
.
It is hereby certified that a true copy of the foregoing order was hand delivered to the
following on June 29, 2006 :
Dorothy M . Gunn
Illinois Pollution Control Board
James R. Thompson Center
100 W
. Randolph St., Ste . 11-500
Chicago, Illinois 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R . Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312 .814.8917
PCB 2004-016
Christopher J . Grant
Office of the Attorney General
188 West Randolph, 20th Floor
Chicago, IL 60601
PCB 2004-016
Steven J
. Murawski
Gardner Carton & Douglas
191 N . Wacker Drive
Suite 3700
Chicago, IL 60606-1698
PCB 2004-016
Phyllis Muccianti
Packaging Personified, Inc .
246 Kehoe Boulevard
Carol Stream, IL 60188-1816
PCB 2004-016
Roy M . Harsch
Gardner Carton & Douglas
191 N . Wacker Drive
Suite 3700
Chicago, IL 60606-1698
PCB 2004-016
Sasha M . Engle
Gardner Carton & Douglas
191 N . Wacker Drive
Suite 3700
Chicago, IL 60606-1698
