BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
)
VS
.
)
PCB 04-16
PACKAGING PERSONIFIED, INC.,
(Enf orcement)
an Illinois corporation,
Respondent.
NOTICE OF ELECTRONIC FILING
PLEASE TAKE NOTICE that we have today, September 12, 2006,
filed with the
office of the Clerk of the Illinois Pollution
Control Board its Response to Respondent's Interlocutory Appeal,
a copy of which is attached herewith and served upon you.
PEOPLE OF THE STATE OF ILLINOIS
By LISA MADIGAN
Attorney General of the
Statq of Illinois
BY:
Assistant Attorney General
Environmental Bureau
188
W. Randolph St., 2oth Flr.
Chicago, IL 60601
(312) 814-5388
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
PEOPLE OF THE STATE OF ILLINOIS,
)
1
Complainant,
1
1
vs
.
)
PCB 04-16
)
PACKAGING PERSONIFIED, INC.,
)
(Enforcement)
an Illinois corporation,
)
)
Respondent.
1
RESPONSE TO RESPONDENT'S INTERLOCUTORY APPEAL
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, by
LISA
MADIGAN, Attorney General of the State of Illinois, and in
Response to Respondent's, PACKAGING PERSONIFIED
INC.'s,
Interlocutory Appeal of the June 28, 2006 Hearing Officer
decision, states as, follows:
THE HEARING OFFICER DECISION SHOULD BE AFFIRMED
I. BRIEF HISTORY
Complainant responded to Packaging Personified, 1nc.l~
("PPI1s") written discovery requests on March 17, 2005, and
objected to certain requests as irrelevant and overbroad. In sum,
Complainant objected to discovery request-s seeking extensive
information related to R93
-9, the Board's 1993 rulemaking process
for "Omnibus Cleanup of the Volatile Organic Material RACT Rules
Applicable to Ozone Nonnattainment Areas". Complainant also
objected to discovery requests related to adjusted standards
sought and
obtained,by three non-party printing companies.
On January 31, 2006, PPI moved to compel responses to
1
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
several of its discovery requests. On June 28, 2006, Hearing
Officer Bradley P.
Halloran rejected PPIrs Motion to Compel in
its entirety, finding the requests to be irrelevant and overly
burdensome. See: June 28, 2006 Hearing Officer Order
(Exhibit
1,
p. 3).
If the Board accepts this Interlocutory Appeal, it should
uphold the Hearing Officer's June 28, 2006 decision. Neither the
promulgation of the underlying regulations nor adjusted standard
requests by non-parties are relevant to any claim or defense in
this matter. Moreover, requiring Complainant to produce volumes
of irrelevant information, much of it publicly available, would
place an unreasonable burden on Complainant.
11. INCORPORATION OF RESPONSE
Complainant incorporates herein its Response to Motion to
Compel, attached as
Exhibit
2.
111. PPI'S REQUESTS DO NOT RELATE TO
ANY
CLAIM OR DEFENSE
As previously argued in Complainant's Response to Motion to
Compel, ignorance of a law or regulation does not excuse
noncompliance. Rather, a Defendant is presumed to know the law.
People
v. Acosta, 331 Ill. App. 3d 1, 6 (2d Dist. 2001)
;
People
v. Draw Drape Cleaners, Inc. PCB 03-51 (August 19, 2004) (slip
op., at 5). Thus it is no defense for PPI to maintain that it
was unaware of the pertinent VOM regulations. Because PPI is a
large printing company, located in an ozone nonattainment area,
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
this rule should be strictly applied. The voluminous discovery
sought by PPI regarding the 1993
promulgation
of the regulations
has no relevance to this case.
PPI states that its motive in seeking this information is 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."
Appeal,
p.2. This claim ignores the
fact that R93-9 was a public proceeding. On March 25, 1993 the
Board, in compliance with the Illinois Administrative Procedure
Act, published its First Notice of rule making. Five (5) interim
Board orders were entered during the proceedings, with the Final
Order (adopting the Rule), entered on September 9, 1993.
PPIrs discovery requests attempt to impose an unreasonable
burden on the enforcement process. If its arguments are taken to
their logical conclusion, a person violating
any
law or
regulation would be entitled to demand extensive production
related solely to the
enactment
of the law. Absent a claim of
administrative procedural irregularities, or claims of
constitutional violation (PPI has plead no such affirmative
defenses), the
enactment
of a regulation has no relation to
whether or not it was subsequently violated.
PPI1s discovery
requests related to promulgation of R93-9 and the Flexographic
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
Printing Rules are therefore irrelevant.
IV. COMPLIANCE BY OTHER COMPANIES IS NOT RELEVANT
At issue is this case is whether or not PPI complied with
the applicable regulations. From 1993 to the present, PPI has
been subject to the Flexographic Printing Rules. However, PPI
seeks extensive production regarding adjusted standards granted
by the Board to non-parties. These actions have no relevance to
Complainant's case against PPI.
An adjusted standard is defined as follows:
a) Description.
An adjusted standard has the e f f e c t o f an
environmental regulation that would apply to
petitioner,
if granted, in lieu of the general
regulation that would otherwise be applicable to a
petitioner and the regulated community.
35 Ill. Adm. Code 104.400
PPI demands that the Complainant produce information related
to three non-party printing companies who did, in fact, obtain
adjusted standards [one has since been
terminated]. However, PPI
never sought an adjusted standard or variance, and has therefore
been continuously bound by the Flexographic Printing Rules.
PPI claims that '...relief was given to several other
companies [but]
...
denied to Packaging on the basis of lack of
timeliness in applying for such relief".
(Appeal,
p.3), and that
other printers were "...allowed to pursue variances and adjusted
standard relief.
. . "
(Appeal,
p
.5) .
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
PPI1s claims are without merit, and it provides no basis for
its extraordinary claim that it was prevented from seeking or
obtaining regulatory relief. Under the Act and regulations, all
affected persons are allowed to petition the Board for relief.
Complainant has never taken any action to prevent such
application, nor could it legally do so. The simple fact is that
PPI did not apply for or seek an adjusted standard, either before
or after this case was filed. Its admitted
"lack of timeliness"
is, quite simply, its own fault. Moreover, regulatory relief is
only provided on a case-by-case basis; there is no way to know
whether such relief would have been granted to PPI. However,
because PPI did
not seek regulatory relief, it was bound by the
Flexographic Printing Rules. Therefore, information and
documents sought by PPI regarding adjusted standards obtained by
non-party printing companies (who were then bound by
those
standards), is not relevant to any claim or defense available to
PPI
.
V. PPI's DISCOVERY REQUESTS ARE UNDULY BURDENSOME
PPI seeks to impose a tremendous burden on Complainant with
overbroad discovery requests. Illinois EPA estimates that it
would take
37 hours to search for the information related to
PPI1s requests. This would be in addition to time spent
searching and providing the thousands of pages of documents
already produced.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
Much of the information requested is completely
unreasonable. For example, Interrogatory No.
6 requests the
identity of all entities listed on the Board's notice lists for
all of R93-9, even though 99% of the
'~93-9 regulations' are
t.otally unrelated to PPI1s business. Moreover, such records are
obviously maintained by the Board, not by Complainant.
Interrogatory No 11 seeks identification of all communications
between
USEPA and
anv
Illinois agency
'...
including but not
limited to promulgation, SIP approval, and enforcement
...
of the
Flexographic Printing Rule's and variances and adjusted standards
from the Flexographic Printing Rules". Even if such information
was relevant, Complainant could not be reasonably expected to
locate correspondence from
USEPA to (for example) the Illinois
State Fire Marshal's Office, originating
.in the early 1990's.
Interrogatory No. 10 states:
"[ildentify each and every
flexographic or rotogravure printer business in the Chicago area,
as that area is described at 35 IAC
218.100(a)". As PPI has been
repeatedly advised, Illinois EPA does not make or keep such
records, and should not be expected to generate such a list for
no relevant purpose.
Considering 'the absence of nexus to any legitimate claim or
defense in this case, such requests can only result in
harassment, by attempting to compel Complainant to expend State
resources searching for irrelevant information.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
VI. CONCLUSION
The Hearing Officer properly denied Respondent's Motion to
Compel. Information regarding the R93-9 rule making process,
the promulgation of the Flexographic Printing Rules, and adjusted
standards granted to non-parties, has no relation to any claim or
defense, and is therefore irrelevant. Moreover, Respondent's
interrogatories and document requests are clearly overbroad and
unduly burdensome. Respondent's Interlocutory Appeal of'the June
28, 2006 Hearing Officer Order should be denied.
WHEREFORE, Complainant respectfully requests that the Board
deny Respondent PACKAGING PERSONIFIED'S Motion for Interlocutory
Appeal, and affirm the Hearing Officer's June 28, 2006 decision.
BY:
~ssibltant Attorney General
Environmental Bureau
188 W. Randolph St.,
2oth Flr.
Chicago, Illinois 60601
(312) 814-5388.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
4
ILLINOIS POLLUTION CONTROL BOARD
June 28,2006
PEOPLE OF THE STATE OF ILLINOIS,
)
1
Complainant,
)
)
V.
)
PCB 04-16
)
(Enforcement
-
Air)
PACKAGING PERSONIFIED, INC., an
1
Illinois corporation,
)
1
Respondent.
1
)
HEARING OFFICER ORDER
On January 3 1,2006, 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.
EXHIBIT
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
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 1 1. 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- 1 1, 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 00-1 1
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 99-1 70
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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
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, much of which is in the Board's public file. Respondent's motion to compel is
denied.
IT IS SO ORDERED.
\
P* ,uo*---
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite
1 1-500
100
W.
Randolph Street
Chicago, Illinois 60601
312.814.8917
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
1
Complainant,
1
1
VS
.
1
PCB 04-16
1
PACKAGING PERSONIFIED, INC.,
1
(Enforcement
)
an Illinois corporation,
1
)
Respondent.
1
RESPONSE TO RESPONDENT'S MOTION TO COMPEL
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, by
LISA
MADIGAN, Attorney General of the State of Illinois, and in
Response to Respondent's, PACKAGING PERSONIFIED
INC.'s, Motion to
Compel Responses to Written Discovery, states as follows:
1.INTRODUCTION
On March 17, 2005, Complainant answered Respondent Packaging
Personified,
Inc.'s ("PPI1s") written discovery requests.
Complainant fully objected to a number of interrogatories and
document requests on the basis of relevance, that the requests
(-
were oppressive, and that they created an unreasonable burden
on Illinois EPA. A copy of Complainant's responses are attached
'
hereto as Exhibit 'A'.
Complainant now responds to PPI1s Motion with the
understanding that the decision will be made by the Hearing
Officer pursuant to
35 Ill. Adm. Code 101.616(a).
Complainant has fully and appropriately responded to all
1
EXHIBIT
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
relevant discovery requests, excepting those to which it properly
objected.
PPI'has not moved to compel responses to
Interrogatories numbers 3 and 5, or Document Requests 1 and 5,
and therefore Complainant will not discuss the basis for its
objections in this Response. Along with its Interrogatory
responses, Complainant has produced thousands of pages of
responsive documents to PPI, and will supplement as appropriate.
The Interrogatories and Document Requests objected to by
Complainant are overbroad, deal with matters completely
irrelevant to the Board's determination of this case, and place
an unreasonable burden on Illinois EPA.
PPI's motion must be
denied.
11. THE REQUESTED INFORMATION IS NOT RELEVANT TO THIS CASE
Complainant has objected to Interrogatories 6-12 on the
basis of relevance. "Relevance" for discovery purposes includes
not only what is admissible at trial, but also that which leads
to what is admissible. However, the right to discovery is
limited to disclosure of matters that will be relevant to the
case at hand in order to protect against abuses and unfairness,
and a court should deny a discovery request where there is
insufficient evidence that the requested discovery is relevant.
TTX Company v. Whitley, 295 Ill. App. 3d 548, 556 (lst Dist.
1998)
;
Mistler v. Mancini, 111 Ill. App. ed 228, 233 (2d Dist.
1982). A court must carefully exercise its discretion in matters
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
pertaining to discovery "in order balance the needs of truth and
excessive burden to litigants.
General Motors v. Bua,
37 I11.2d
a. The Promulgation of "R93-9" is Not Relevant to this
Matter.
PPIrs Interrogatory Requests 6, 7, 8, and 11, and document
requests 13, 14, and 15 provide, as follows:
6.
Identify all entities who were listed on any IPCB notice
lists and service lists for R93-9.
7.
Identify all enti ties who, prior to or during the pendency
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
Fl exographic Printing Rules
.
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
wa ter-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
con trol equipment was employed
.
11. Identify each and every communication between USEPA and the
State of
~llinois or any Illinois state Agency relating to
the Flexographic Printing Rules, including but not
limi ted to promulgation,
SIP approval, and
enforcement of the
Fl exographic Printing Rules and variances
and adjusted standards from the Flexographic Printing Rules.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
The Related Document Requests Provide:
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 ei ther before the
rul emaking, during
the pendency of R93-9, or after adoption of the Flexographic
Printing Rules. [NOTE: this request has been complied with,
but is included in
PPI's Motion, seemingly in error.]
15.
All documents relating to any notice provide by the IPCB to
Packaging Personified related to
R93 -9.
As seen, PPI1s discovery requests repeatedly seek
information regarding
"R93-9". This Board rulemaking began March
16, 1993, and concluded November 22, 1993. The Board web site
lists 24 separate activities, including 3 hearings. The Final
Order, published on September 9, 1993, runs
616
pages.
In R93-9, the Board enacted the VOM RACT Rules, and created
or modified regulations in parts 203, 211, 218, and 219. Almost
all of the regulations adopted or modified in R93-9 are
totallv
unrelated to PPI's business, or to this Case. For example, Part
218 contains regulates emissions from sources as varied as
petroleum storage tank emissions
[218.123], Coating operations
[218.204], pharmaceutical centrifuges [218.481], and marine
terminals
[218.760]. Part 219 applies only to the St. Louis
area. The only relation between this case and R93-9 is that
Organic Material emission limitations for flexographic printers,
were added through this regulatory process. In Counts
VII and
VIII of the Amended Complaint, Complainant alleges the PPI
4
J
a
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
violated certain of these regulations.
PPI1s discovery requests do not seek information regarding
PPIrs compliance or non-compliance with the Flexographic Printing
rules. Rather PPI seeks information, and huge volumes of
documents, regarding the promulqation of the rules themselves.
Such information could only be material, if at all, if PPI was
challenging either the constitutionality or validity of the
regulations. They have not done so.
,
PPI states:
\\
[t] hese discovery requests are re1 evan t because Packaging
is entitled to determine if other companies received notice
or other documents regarding the
Fl exographic 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.
"
[PPI Motion, p.
21 . '
Notably, PPI does not claim that the regulations are
invalid
due to a lack of notice, nor does it make claims of violations of
due process or equal protection. Rather, its Motion appears to
be making the claim that it was
not aware
of the Flexographic
Printing Rules until cited by Illinois EPA. PPI also makes many
such representations in its Answer to the Amended Complaint,
e.g.
:
"Packaging states that it was the owner of the site prior to
1993 when
it was not subject to specific
VOM
limitations,
and hence, was not aware of
the subsequent potential
applicability of environmental regulations , including
CAAPP
requirements, to its operation. As soon as Packaging
learned of the potential applicability of the regulations,
it took steps to come into compliance".
[Answer, Count IV,
Par.
25.1
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
However, PPI1s alleged ignorance of the requirements of the
Flexographic Printing Rules does not provide a defense. A
Respondent or Defendant is presumed to know the law; ignorance of
it is no excuse.
People v. Acosta,
331 Ill. App. 3d 1,
6
(2d
Dist. 2001)
People v. Draw Drape Cleaners, Inc.
PCB 03-51 (August
19, 2004) (slip op., at
5)
.
The material issues in our case are whether the regulations
were violated, not whether PPI received notice of the 1993
rulemaking.
PPI1s Motion to Compel Answers to Interrogatories 6,
7, 8 and 11, and Document Requests 13 and 15 should be denied as
/
irrelevant to this case.
b. Information Regarding Other Flexographic Printing
Companies is not relevant to this matter.
Interrogatories No. 9, 10, and 12, and Document Requests 16,
17, and 18 seek
volumes
of information regarding other
flexographic printers in the Chicago Area, as follows:
9.
Identify each and every communication, related to clean air
regulation
wi th respect to permitting, Flexographic Pri ting
Rules, or emissions reduction systems, between
IEPA and the
foll owing companies
:
a.
Formel Industries, Inc.
b.
Vonco Products, Inc.
c.
Bema FilmSystems, 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).
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
6
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
those companies, captioned before the IPCB as AS-00-11,
AS-00-12, and AS-00-13.
As justification for this broad request, PPI states:
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
[sic] ask for documents relating to adjusted standards and
variances sought by companies in the same industry as
Packaging
Personified. These Discovery Requests are re1 evan t
to the extent that other similarly-si tua ted companies
received regulatory re1 ief that Packaging could a1 so have
received.
[PPI Motion, pp. 2-31.
PPI did not seek adjusted standards or variances prior to
the filing of this case, and its failure to do so is not at
issue. Seemingly, it
could have made
such application, although
whether such relief would have been granted is unknowable.
However, adjusted standards or variances sought or obtained by
other companies have no relevance to any claim or defense in this
case.
PPI's requests are analogous to those addressed in
TTX
Company v. Whitley,
295 Ill. App. 3d 548 (1st Dist. 1998), an
appeal of an Illinois corporate tax assessment. TTX Company
sought records of other companies who used the same method of tax
calculation as TTX, and disputed by the Illinois Department of
Revenue. The Appellate Court reversed an order compelling
production of this material, deeming the information irrelevant.
Significantly, the Appellate Court noted that TTX had not claimed
a denial of equal protection or due process. Whether TTX was
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
treated differently from other companies was not relevant. 295
Ill. App. 3d 548, 557.
Here, PPI seeks extensive information from Illinois EPA
regarding actions taken by three unrelated companies in their
petition to the Board for adjusted standards.
Section 101.202
of the Board regulations provides:
"Adjusted Standard" or 'AS" means an a1 terna tive standard
granted
by the Board in an adjudicatory proceeding pursuant
to Section 28.1 of the Act and
35 Ill. Adm. Code 104,
Subpart D.
The adjusted standard applies instead of the
rule or regulation of general appl
icabil i ty.
Section 104.400 of the Board regulations provides:
a)
Description. An adjusted standard has the e f f e c t o f an
environmental regulation that would apply to
petitioner,
if granted, in lieu of the general
regulation that would otherwise
be applicable to a
peti tioner and
the regulated communi
ty.
In other words, companies who obtain adjusted standards are
governed by those standards. Those who do not, are governed by
the rule of general applicability: in our case the Flexographic
Printing Rules as promulgated.
PPI cannot claim that it lacks lack knowledge of the subject
matter of these adjusted standard petitions: the Board orders
granting [and later
withdrawing] these adjusted standards are
*
viewable on the Board's web site. Moreover, Illinois EPA
has
already provided copies of any correspondence with PPI relating
to a possible adjusted standard.
In any event, the requested information is clearly not
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
relevant to this case. PPI did apply for or obtain an
adjusted standard. Rather, as alleged by Complainant, PPI
continued to operate in violation of the Flexographic Printing
Rules. Companies operating under an adjusted standard were bound
by that standard, not the Flexographic Printing Rules. Thus none
r
of the information requested by PPI is relevant to this case.
PPI1s Motion to Compel responses to Interrogatories Numbers 9
&
12, and Document Requests 16, 17, and 18 should be denied.
PPI also seeks to compel Illinois EPA to identify 'each and
every flexographic or rotogravure printer in the Chicago
area...', without providing any reasonable
ex~lanation as to how
this information could be relevant to its case. Illinois EPA
does not make or keep such records [see: Affidavit of Donald
Sutton, Exhibit
B, par. 111
,
and should not be required to
assemble information which is equally available to PPI.
PPI1s
Motion to Compel a response to Interrogatory No. 10 should also
be denied.
111. PRODUCTION OF THE REQUESTED INFORMATION
WOULD BE OVERLY BURDENSOME
The right to discovery is limited to the disclosure of
matters that will be relevant to the case at hand in order to
protect against abuses.
Leeson v. State Farm, 190 Ill. App. 3d
359
(ISt Dist. 1989). Discovery is not a tactical game to be
used to obstruct or harass the opposing litigant. Williams
v.
A.E. Staley, 83 Ill. 2d 559 (1981)
.
9
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
In addition to seeking irrelevant information, PPI1s
discovery requests are clearly overbroad in scope, unrealistic,
and oppressive. PPI seeks to compel Illinois EPA to search
thousands of pages of documents for information unrelated to any
claim or legitimate defense, and seeks information and documents
made, kept, and communicated by other entities, including
USEPA,
the Board, and other State Agencies.
a. PPI's Requests are Overbroad
As seen above, PPI seeks 'all information', 'all
communications', and 'all documents' regarding R93-9, despite the
fact that most of the requested information affects industries
and/or geographical regions completely unrelated to its business,
and regulations unrelated to this case. For example, the R93-9
rulemaking process significantly modified regulations (in Part
219),
applicable only in the Metro East area, adjacent to St.
Louis. In addition, PPI seeks to compel Illinois EPA to produce
information obviously in the possession of third parties. For
example, Document Request No.
15 requests "All documents relating
to any
notice provide by the IPCB to Packaging Personified
related to
R93-9". Interrogatory number
1.2
seeks to compel
'
Illinois EPA to identify USEPA communications.
As
shown by the
Affidavit of Donald Sutton, Illinois EPA does not possess (and
should not be expected
to.possess) much of the information
demanded by PPI.
Exhibit B, par's
8-12.
PPI certainly must know
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
that Illinois EPA cannot provide information, for example, in the
possession of the Board or USEPA-its demands are clearly an
attempt to harass Complainant through overbroad discovery.
b. PPI's Requests are Oppressive
As shown by the Affidavit of Donald Sutton, answering PPIrs
discovery would involve searching thousands of pages, numerous
email communications, and computer generated data. It is
estimated that at least thirty-seven hours would be required to
search for this irrelevant information. Because of the absence
of any showing of relevancy for the produced information,
PPI1s
requests are abusive and clearly oppressive. See, e.g: General
Motors
v. Bua, 37 Ill. 2d 180,193-4 (1967) (extensive production
denied absent showing of materiality and relevancy).
IV. CONCLUSION
As shown by Exhibit A, Complainant has properly and
completely responded to all of
PPI1s discovery responses. Where
PPI sought relevant information it has been provided. Thousands
of pages of documents have been made available to PPI, including
responses to Document Request No. 14, mistakenly included in
PPIts Motion to Compel.
Where
PPI1s requests have sought the production of
information unrelated to any issue in this matter, Complainant
has objected on the basis of relevance. Where
PPIts requests
were completely unreasonable and oppressive, Complainant has also
11
\
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
objected.
Information regarding the
1993
promulqation of the
Flexographic Printing Regulations, is not material to this case,
absent a claimed defense regarding the validity of the
regulations or the constitutionality of this enforcement action.
None have been raised by PPI. Information relating to the Board
Petitions of unrelated entities also does not relate to
PPI1s
alleged violations, or any defense thereto. PPI, which did not
seek an adjusted standard, was regulated by the Flexographic
Printing Rules. Companies which had obtained an adjusted
standard, were not.
WHEREFORE, Complainant respectfully requests that the
Hearing Officer deny Respondent's Motion to Compel Responses to
Written Discovery.,
RESPECTFULLY
SUBMIT~ED,
ISTOPHER GRANT
istant Attorney General
Environmental Bureau
188
W. Randolph St.,
2oth
Flr.
Chicago, Illinois
60601
(312) 814-5388
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
Exhibit A
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
1
V.
PCB 04-16
1
(Enforcement
-
Air)
PACKAGING PERSONIFIED, INC.,
)
Respondent.
COMPLAINANT'S RESPONSES TO RESPONDENT'S FIRST SET OF
INTERROGATORIES AND
REOUESTS 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 Privile~e.
If any information or documents are withheld
because the interrogatory is objected to on grounds of attorney-client privilege,
woi-k product or
any other grounds, please specify with particularity:
(a)
The portion of the interrogatory to which the withheld information or
docurnent 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 docurnent;
(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;
(f)
The file in which any relevant document was located or from which it is
being withheld;
(g)
The present location of any relevant document;
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
(h)
Custodian of any relevant document;
(i)
The number of copies of any relevant document being withheld; and
Cj)
The factual and legal basis upon which a privilege is claimed andlor 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)(l) 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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
8
>.
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.
"Identifv".
As used herein, the term "identifL," 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
"identiv' 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 "vour".
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.
"Packaginp Personified".
As used herein, the term "Packaging Personified"
refers to Packaging Personified,
Inc. or any of its officers, directors, employees, contractors, or
agents.
3
--
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
;.
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.
ccUSEPA".
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 511 et seq.
16.
ccCom~laint".
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 of Illinois
v. Packaging Personified, Inc., PCB 04- 16.
17.
"VOM'y 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.
''Facilit~~~.
As used herein, the term "Facility" refers to Packaging Personified
Inc.'s operations located at 246 Kehoe Boulevard, Carol Stream, DuPage County, Illinois.
19.
"Flexo~ra~hic
-
print in^ Rules".
As used herein, the term "Flexographic
Printing Rules" refers to the
PCB rules at 35 IAC 218.401 et seq., which regulate organic
inaterial emissions from flexographic and rotogravure printing operations in the Chicago area.
20.
"R93-9" or ccRulemakin~".
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 2 18.401 et seq.
21.
ccSIP".
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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
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
I.
Identzjj the person or persons providing the answers to these Interrogatories,
and, for each answer,
identzjj 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.
Identzjj 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 VOMper yearJJ and that the Facility's "actual
2002
VOM emissions were at least 44
,,
tons.
ANSWER:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
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 i missions 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 tonslyear 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.
.
Identzfi each and every basis in support of your allegations in Paragraphs 18 and
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.
Identzfi 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
September30 for each year from
1997
until the filing of the Complaint.
ANSWER:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
,
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 andfor 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
1 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
1 through 12 and 17
5.
Identzfi each and eve y basis in support of your 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 forn~. It is
'
vague, overbroad, and requires Complainant to speculate as to the information sought by
Respondent.
6.
Identzfi all entities who were listed on any IPCB notice lists and sewice lists for
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 Ill.
Adm.
Code, and R93-9 as herein defined, does not relate to any claim or
defense in the instant case.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
7.
Identzfi 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:
a.
IdentzfL 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 ofproductprinted, the
inks used, whether the
inks used are water-based or solvent-based, and
the processes used by the entity.
b.
Identijj 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.
ANSWER:
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.
IdentifL each and every communication, related to clean air regulation with
respect to permitting, Flexographic Printing Rules, or
enzissions reduction systems, between
IEPA and the following companies:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
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.
IdentzJL each and everyjkographic or rotogravure printer business in the
Chicago area, as that area is described at
35 IAC 21 8.1 00(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.
Identzjj 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 ~nterro~atory
No. 11 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.
Identfy 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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
adjusted standards from the Flexographic Printing Rules granted to those companies, captioned
before the IPCB as
AS
00-1
1,
AS
00-12, and
AS
00-13.
ANSWER:
Complainant objects to Interrogatory No. 12 as it seeks information that is irnmate'i-ial,
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.
Identlfi each and every basis in support of the amount ofpenalty 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.
Identfi 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
41 5 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
avoided1
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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
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
102 1 North Grand Avenue East
Springfield, Illinois 62794-9276
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
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
fkom 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 testzjj at the hearing, including the
following information:
a.
For each lay witness, identzjj the subjects on which the witness will
test@.
b.
For each independent expert witness,
identzfjl the subjects on which the
' .
witness will testzjj and opinions you expect to elicit.
c.
For each controlled expert witness, identzjj:
(i)
the subject matter on
. .
which the witness will testzjj; (ii) the conclusions and opinions of the
witness and the bases. therefor;
(iii) the qualifications of the witness; and
(ii)
any reports prepared by the witness about the case.
. ,
ANSWER:
a.
David Bloomberg, Compliance Unit ManagerIBureau 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.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
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 andlor
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 Ill. Adm. Code 101.616.
DOCUMENT REQUESTS
I.
All documents relating to the allegations in the Complaint.
RESPONSE:
Complainant objects the Document Request No. 1 as being overly vague.
2.
All documents identzfied in your responses to Interrogatories
1-14
or reviewed in
the course of responding to Interrogatories
1-1
4.
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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
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
L
documents selected for deposition. This Response will be supplemented as required.
4.
All documents you intend to ofer 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 anypurpose 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, filnzs, 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
-
-
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
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:
4
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 102 1
N. Grand Avenue East, Springfield, Illinois. Complainant will consult with Respondent
regarding the location of production.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
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 thirdparty concerning the Facility or the allegations of the Complaint.
RESPONSE:
Complainant objects to Document Request no. 1 1 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 102 1
N. Grand Avenue East, Springfield, Illinois. Complainant will consult with Respondent
regarding the location of production.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
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 R93-9provided by IEPA to Packaging Personified
either before the Rulemaking, during the pendancy of R93-9, or
after adoption of the
Flexograplzic 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 clocuments relating to any notice provided by the IPCB to Packaging
PersoniJied related to R93-9.
RESPONSE:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
Complainant objects to Document Request No.15 as vague, and that it seeks information
that is immaterial, irrelevant, and not reasonably calculated to lead to relevant information. See:
'~es~onse
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 00-1
3
b.
In the Matter of Petition of Vonco Products, Inc. for an Adjusted
Standard, AS 00-1
2
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 VarianceJi-om the
Flexographic Printing Rules before the IPCB:
a.
Formel Industries, Inc., PCB 99-1 65
b.
Vonco Products, Inc., PCB 99-1 67
c.
Bema Film Systems, Inc., PCB 9-1 70
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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
from the, Flexographic Printing Rules, and enforcement of the Flexographic Printing Rules by
USEPA, the State of lllinois, or any other entity with administrative or judicial enforcement
authority with
respectto 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,
By:
~ssiktft
Attorney General
~nvb nmental Bureau
188
W. Randolph Street, 2oth F1.
Chicago, Illinois 60601
(312) 814-5388
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
I
NO(8ry
~iblic, State of
Illinois
My Commission Exp
0111212008
. .. -
,
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.
me this
1
pp
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
SUBSCRTBED AND SW
me this
i*
DAY OF
I
My
rdg%2E!*W"mie
omm mission
Exp
O1/1m
1
1 11 LO.
- . ----
-
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 Tnterrogatories 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.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
CERTIFICATE OF SERVICE
I, CHRISTOPHER GRANT, an attorney, do certify that I caused
to be served this
18th day of March, 2005, Complainant's
Responses to Respondent's First Set of Interrogatories and
Requests for the Production of Documents, upon
jzhe person listed
below, by hand delivery.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
vs
.
1
PCB 04-16
)
PACKAGING PERSONIFIED, INC.,
)
(Enforcement)
an Illinois corporation,
1
)
Respondent.
)
'd
CHRISTOPHER GRANT
Service List:
Mr. Roy Harsch
Gardner Carton Douglas LLP
191 N. Wacker Drive, Suite 3700
Chicago Illinois 60602
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
Exhibit B
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
--
FEB-15-2006
08:49
DLC LEGRL
P.
03
AFFIDAVIT OF DONALD SUTTON
I, DONALD SUTTON, after being duly sworn on oath, state that if called upon to testify
in this matter, I would competently testify as follows:
1.
I am employed by the Illinois Environmental Protection Agency ("Illinois EPA")
as Manager of the Permit Section for the Bureau of Air. I have held this position title for, and
have worked for nlinois EPA for a total of
mw.
16
years.
2.
My current responsibilities include overseeing,all facets of air permitting and the
records unit.
I am familiar with the reports and records maintained by Illinois EPA, Bureau of
Air.
3.
I am familiar with the enforcement case People v. Packaging Personified, Inc.,
now pending before the Illinois Pollution Control Board as case No. PCB 04-16.
4.
I have reviewed the Interrogatories and Document Requests submitted by
Packaging Personified Inc. in PCB 04-16, and
am
familiar with the subjectmatter of the request.
5.
'
The Pollution Control Board rule making process referred to as
"R93-9"
resulted
in the promulgation of certain regulations now found
in
35
Ill.
Adm. Code Parts 203,
21
1,
218
and
219. Part
203 regulates all defined sources of any regulated contaminant.
'
Part
21 1 provides
definitions..
Part
218
regulates emissions of organic material
fiom
stationary sources in the
Chicago area
Part
219
regulates emissions of organic material fiom stationary sources in the
Metro East region of Illinois.
6.
PPI's Interrogatories 6, 7, 8, and 11, would require Illinois EPA to search
hundreds of documents, comprising thousands of pages, including hundreds of records regarding
emission sources unrelated to
PPI's business. Assuming that each document would require at
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
FEE-15-2006
08:49
DLC LEGFlL
P. 04
least five minutes review to determine its relevancy, I estimate that approximately 37 person-
hours would be required to assemble the information requested.
7. PPIYs Interrogatories 9 and 12 would require the Illinois
EPA
to.search hundreds of
pages of information, including information archived and no longer readily available to the
Illinois
EPA
and information regarding entities not related to this matter. Assuming that each
document would require at least five minutes review to
determine its relevancy, I estimate that
37 person-hours would be required to assemble the information requested.
8.
Interrogatory No. 11 also requests 'every communication between
USEPA
and
the State of Illinois or any
Illinois state agency....'. Illinois
EPA
does not have access to all such
correspondence by
USEPA.
9. Interrogatory No. 6 requests "the identity of all entities list on
ICPB
notice lists and
service lists." The Illinois
EPA
does not have access to all such correspondence by the
ICPB.
10. Interrogatory No. 7 requests "each and every communication between and among
IEPA, USEPA,
and companies listed in Interrogatory 9..
.".
The Illinois EPA does not have
access to all such correspondence by
USEPA
and by the referenced companies. Further, the
information does not relate to this
matter.
11.
PPI's Interrogatory No. 10 requests a list of 'each and every flexographic or
rotogravure printer business
in the Chicago area, as that area is described at 35
IAC
218.100(a)."
Illinois
EPA
does not keep or maintain a list of all flexographic or rotogravure printing business
in the Chicago area, and would have to expend considerable resources to compile such a list.
12.
PPI's Document requests numbers 13 through 17 would also require a search of
many thousands of pages of documents, numerous
email communications and computer
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
FEB-15-2006
08:50
DLC
LEGFlL
P.
05
generated data. Moreover, much of the requested subject matter would be in the custody of the
Illinois Pollution Control Board, not the Illinois EPA.
FURTHER
AFFIANT SAYETH
NOT
o-c&
Donald Sutton
Subscribed
and Sworn to
b fore me this
1s
day of
$br
a~r $1006
%*os*~9*aoso~~
OFFlCUL SEAL
f BRENDA BOEHlER f
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
.
)
)
vs
.
)
PCB 04-16
)
PACKAGING PERSONIFIED, INC.,
)
(Enf orcement)
an Illinois corporation,
)
)
Respondent.
)
CERTIFICATE OF SERVICE
I, CHRISTOPHER GRANT, an attorney, do certify that I caused
to be served this day of February, 2006, the foregoing
Response to Motion to Compel, and Notice of Electronic Filing,
upon the persons listed below, by placing same in an envelope
bearing sufficient postage with the United States Postal Service
/
located at 100 W. Randolph, Chicag
V"
-'*
1
CHRISTOPHER GRANT
Service List:
Mr. Roy Harsch
Garder Carton Douglas
191 N. Wacker Drive, Suite 3700
Chicago, Illinois 60606-1698
Mr. Bradley
P. Halloran
Hearing Officer, IPCB
100
W. Randolph, Chicago IL
via hand delivery
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
1
vs
.
1
PCB 04-16
1
PACKAGING PERSONIFIED, INC.,
)
(Enforcement
)
an ~llinois corporation,
1
)
Respondent.
1
CERTIFICATE OF SERVICE
I, CHRISTOPHER GRANT, an attorney, do certify that I caused
to be served this day of September, 2006, the foregoing
Response to
Respondent' s Interlocutory Appeal, and ~otice of
Electronic
filing, upon the persons listed below, by placing same
in an envelope bearing sufficient postage with the United States
Postal Service located at 100 W. Randolph, Chicag
CHRISTOPHER GRANT
Service List:
Mr. Roy Harsch
Garder Carton Douglas
191 N. Wacker Drive, Suite 3700
Chicago, Illinois 60606-1698
Mr. Bradley P.
Halloran
Hearing Officer, IPCB
100 W. Randolph, Chicago IL
via hand delivery
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 12, 2006