BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIP
AL CORPORATION,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, and HAM:MAN
FARMS,
Respondents.
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)
)
)
)
)
)
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)
PCB No. 08-95
(Appeal
ofAgency Action)
NOTICE OF FlLING
TO: SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that on August 5, 2008, we electronically filed with the Clerk
of the Illinois Pollution Control Board, Respondent Hamman Farms' Motion for Leave to File a
Brief Responding to Yorkville's Brief Concerning Discovery, with
an
attached Brief, copies of
which are attached hereto and hereby served upon you.
Dated:
August
5, 2008
Charles F. Helsten
Nicola Nelson
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O.
Box 1389
Rockford,
IL 61105-1389
815-490-4900
Respectfully
submitted,
On behalf of HAMMAN FARMS
lsi
Charles F. Helsten
One
of Its Attorneys
70566464v166799 890519
Electronic Filing - Received, Clerk's Office, August 5, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and HAMMAN
FARMS,
Respondents.
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)
)
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PCB No. 08-95
(Appeal
of Agency Action)
RESPONDENT HAMMAN FARMS'MOTION FOR LEAVE TO FILE A BRIEF
RESPONDING TO YORKVILLE'SBRIEF CONCERNING DISCOVERY
NOW COMES Respondent, HAMMAN FARMS, by and through its attorneys, Charles
F. Heisten and HINSHAW
&
CULBERTSON LLP, pursuant
to
35 Ill.Adm.Code 101.610 and
101.616, requesting leave to file its Response to Yorkville's Brief Concerning Discovery, stating
as
follows:
1.
On July 23,2008, Respondent Hamman Farms filed a motion requesting an order
from the
Hearing Officer concerning the timing and scope ofdiscovery; ifany, in this case.
2.
On
July 28, 2008, the Hearing Officer ordered that the parties file briefs
describing the information they believe is "arguably relevant, discoverable, and admissible in
this proceeding that was
not before the Agency at the time the permit was issued."
3.
On
July 31,2008, Hamman Fanns filed its brief pursuant to the Hearing Officer's
order; on August
1, 2008, Petitioner City of Yorkville filed its brief pursuant to the Hearing
Officer'sorder.
4.
Yorkville's
brief repeatedly misuses the term "agronomic rate," which is a term
that lies at the heart
of the challenged decision, and in so doing, Yorkville misrepresents and
mischaracterizes the Agency's
decision.
7057033)v! 890519
Electronic Filing - Received, Clerk's Office, August 5, 2008
5.
Respondent Hamman Fanns accordingly requests leave to file a brief responding
to the misrepresentations and mischaracterizations
in
Yorkville's brief; a copy of Hamman
Farms'proposed
briefis attached hereto.
WHEREFORE, Respondent HAMMAN
FARMS respectfully requests leave, pursuant to
the authority
of the Hearing Officer under 35 Ill.Adm.Code 101.610 and 101.616, to file the
attached
brief
in
Response to Yorkville'sBrief Concerning Discovery.
Dated:
August 5, 2008
Charles F. Helsten
Nicola
Nelson
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O.
Box 1389
Rockford,
IL 61105-1389
815-490-4900
George Mueller
Mueller Anderson, P.C.
609
Etna Road
Ottawa, IL 61350
815/431-1500
2
Respectfully submitted,
On behalf ofHAMMAN FARMS
lsI
Charles F. Helsten
One of Its Attorneys
7057033Jvl 890519
Electronic Filing - Received, Clerk's Office, August 5, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Complainant,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and HAMMAN
FARMS,-
Respondents.
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)
PCB No. 08-95
(Appeal ofAgency Action)
RESPONDENT
HAMMAN FARMS' RESPONSE TO
YORKVILLE'SBRIEF CONCERNING DISCOVERY
NOW COMES Respondent, HAMMAN FARMS, by and through its attorneys, Charles
F. Helsten and HINSHAW & CULBERTSON LLP, and in response to the brief filed by the City
ofYorkville on August 1, 2008 concerning discovery, states as follows:
Yorkville's brief consistently misuses the term "agronomic rate," and alleges that that
Illinois Environmental Protection Agency ("IEPA" or ''the Agency") has authorized the
application of landscape waste at Hamman Farms at "greater than the agronomic rate." This
fundamental misunderstanding or,
in
the alternative, gross misrepresentation, of the tenn
"agronomic rate" pervades Yorkville'sbrief and indeed, pervades its entire theory ofthe case.
Contrary to Yorkville's use
of the tenn, the "agronomic rate" of fertilizer application or
landscape waste application is not a fixed or a scientifically established number suitable for all
conditions and all soils. Rather, the "agronomic rate" is "the rate at which fertilizers, organic
70570240vl 890519
Electronic Filing - Received, Clerk's Office, August 5, 2008
wastes or other amendments can be added to soils for optimwn plant growth." USDA Natural
Resources Conservation Service, National Agronomy Manual, at p. 214.]
Although the Illinois Environmental Protection Act includes an arbitrary, default
agronomic rate
of 20 tons per acre, the Act goes on to specifically authorize the Agency to
calculate and set the appropriate agronomic rate for individual sites based on their particular soil
characteristics or crop needs.
See
415 ILCS 5/21(q). Hamman Farms requested such a Section
5/21(q) determination from the Agency, and although Yorkville's brief asserts that the Agency's
May
1, 2008 decision
in
response to that request allowed application of waste at "greater than the
agronomic rate," this improperly characterizes the Agency'S decision, and suggests that the rate
calculated by the Agency is somehow suspect. Thus, by misusing the term "agronomic rate,"
Yorkville totally misrepresents the Agency'sdecision.
Yorkville's brief implies that the City
of Yorkville believes it is better suited than the
IEPA
to design a method for calculating the rate of application that would "adequately" meet the
needs
of the fields at Hamman Farms. (Yorkville's brief at 2). Setting aside the fact that the
"agronomic rate" (as observed
by the USDA) is the rate that ensures optimal plant growth, not
merely the "adequate" rate
to avoid destruction of the soil, the City's efforts
to
use this litigation
to develop what it believes is a superior method for assessing soil and crop needs would result
in
an outright abuse ofthis administrative process. Moreover, the City has demanded that Hamman
Fanns produce a wide-range
of information and materials
in
discovery that extend far beyond the
information before
the Agency when it made the decision challenged herein. (For a Petitioner
1 Available online at the United State's Department of Agriculture website, at:
http://www.info.usda.gov/media/pdt7M_190_NAM.pdf.
2
70570240vJ 890519
Electronic Filing - Received, Clerk's Office, August 5, 2008
that doesn't even know the meaning of the term "agronomic rate," the City has big plans for this
litigation.)
Interestingly enough, those big plans involve gathering an exhaustive array of
infonnation and materials that go far afield of the litigation's purported subject (calculation of
the appropriate agronomic rate for Hamman Farms). Among the entirely unrelated and irrelevant
materials and infonnation demanded
by Yorkville
in
discovery are,
e.g.,
''recordsand contracts,
tending to show the source
of the landscape waste that Respondent Hamman Farms applies to its
fields;" any violation notices served upon Hamman Farms
by the IEPA; "the procedures that
Respondent Hamman Farms employs to control the emission
of odor"; ''thenumber of times
during the last ten years that Respondent Hamman Fanus has failed to apply landscape waste
within twenty-four (24) hours
of receiving the 10OO(s) of landscape waste...tbe reason that
Respondent Hamman Farms failed
to apply the landscape waste within twenty-four (24)
hours
...and the identify (sic) of persons with knowledge of the above information." (Yorkville's
Requests to Produce, at Nos.
17 and 18, and Interrogatories, at Nos. 12 and 13, attached hereto as
Exhibit A.). Such infonnation hardly seems calculated
to
show that the Agency improperly
detennined the soil characteristics and/or crop needs at Hamman Farms.
Under well-established Board precedent, the review
of an Agency decision should be
limited to the record before the Agency at the time
of its decision, and under 415 ILCS 5/21 (q),
the sale factors considered
in
detennining the agronomic rate for a subject site are its soil
characteristics and/or crop needs.
Clearly, then, the data relied upon
by the Agency in
determining Hamman Farms' soil characteristics and crop needs are the only relevant materials
at issue
in
a review of the challenged decision. Yorkville has made absolutely no showing in its
brief of why, in a case that purports to challenge the Agency's May 1, 2008 decision setting the
3
70570240vl 890$19
Electronic Filing - Received, Clerk's Office, August 5, 2008
agronomic rate for the subject site, discovery should not be limited to the infonnation that was
before the Agency at
the time it made its decision. Unless and until Yorkville makes such a
showing; discovery outside the record is improper.
As a result, Hamman Farms should not be
required to answer the discovery served by Yorkville (attached hereto
as
Exhibit A).
WHEREFORE,
HAMMAN FARMS respectfully requests that the Hearing Officer order
that discovery is inappropriate
in this case, or
in
the alternative, enter an order limiting discovery
to the data that
was reviewed and considered by the Agency in reaching its assessment of
Hamman Farms' soil characteristics or crop needs, and its resulting calculation ofthe appropriate
agronomic rate for
Hamman Fanns.
Dated:
August
5, 2008
Charles F. Helsten
Nicola Nelson
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box
1389
Rockford, IL 61105-1389
815-490-4900
George Mueller
Mueller
Anderson,
p.e.
609 Etna Road
Ottawa,
IL 61350
815/431-1500
4
Respectfully submitted,
On
behalf ofHamman Farms
Charles
/s
I
F. HeIsten
One
of Its Attorneys
70570240vI 890519
Electronic Filing - Received, Clerk's Office, August 5, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and
HAMMAN FARMS,
Respondents.
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PCB No. 08-95
(Appeal of Agency Action)
PETITIONER UNITED CITY OF YORKVILLE'SINTERROGATORIES TO
RESPONDENT HAMMAN FARMS
NOW COMES, Petitioner, United City of Yorkville, by and through its attorneys,
Gardiner Koch
&
Weisberg, pursuant to ILL. AOMIN. CODE TIT. 35 §§ 101.616 and 101.620, and
directs
~e
Respondent to answer these Interrogatories on or before the deadline set by the
Hearing Officer.
DEFINITIONS
1.
"And/or" shall be construed both disjunctively and conjunctively so as to require the
broadest possible answer.
2.
''Communications''shall mean any verbal, written or other transmittal ofwords,
thoughts, ideas or images between or among persons or groups of-persons, whether in
person, by letter,
by
telephone or any other means including, without limitation.
discussions, conversations, meetings, conferences, contracts, telephone conversations,
inquiries, interviews. negotiations, advertisements, agreements, understandings,
cards, letters, correspondence, telegrams, telexes, faxes, cables or other forms of
written or verbal intercourse, however transmitted, including reports, notes,
memoranda, lists,
agenda, video or audio recordings, writings, drawings, graphs,
charts, photographs, phone records,
and
data
compilations from which information
may be obtained (translated if necessary, through detection devices).
3.
'~Date"
means the exact day, month, and year if ascertainable; if not exactly
ascertainable, then the closest approximation that can be made in terms of days,
months, and years, seasons, or in relation to other events of matters.
1
Electronic Filing - Received, Clerk's Office, August 5, 2008
4.
"Petitioner" means and refers to the United City of Yorkville, its agents, employees,
attorneys and representatives. "Person" means and refers to natural persons, groups of
natural persons acting as individuals. groups of natural persons acting in a collegial
capacity
(e.g"
as a committee or board ofdirectors), corporations, partnerships. joint
ventures, and
any
other incorporated or unincorporated business or social entity.
5.
"Document" means all writings of every kind in your custody, possession. or control
or in the custody, possession, or control of any agent, employee or representative
(including attorneys) of yours including. but not limited to letters. telegrams, e-mail
or electronic messages, telex messages, facsimile letters or transmissions,
memoranda, reports, drawings, studies, calendar or diary entries, maps, plans,
pamphlets, notes or records of meetings or conversations of any kind, charts,
tabula~
tions, analyses, statistical or infonnation accumulations, financial statements, bills,
receipts, work orders, purchase orders, invoices, canceled checks, general ledgers,
accounting records of any kind, film impressions, photographs, computer printouts or
materials from which such printouts may be obtained, magnetic tapes, sound or
mechanical reproductions, drafts, revisions, amendments or supplements of the
above, and copies of documents that are not identical duplicates of the originals
(because,
e,g"
handwritten or "blind" notes appear thereon or are attached thereto).
6.
"Identify," "Identifying" or "Identification," when used in reference to a natural
person, means to state his or
her
full name
and
present or last known residential and
business address and telephone number, his or her present or last known position or
business affiliation; when used
in
reference to a business entity, 'meansto state the
name, address, telephone number, and any account or computer number to which
such entity is referred to in your records; when used in reference to a communication,
means to state the parties
to
the communication, including parties present during the
communication, the means of communication, the date of the
comm~cation~
the
place ofthe communication and the substance ofthe communication; when used in
reference to a lawsuit, means to state the name ofthe suit, the place of
the
suit, the
caption ofthe suit, the date on which the suit was filed, and the counsel of record for
the party and/or parties on whose behalf the suit was filed; when used in reference to
a document, means to state the type of document (i.e., letter, memorandum, chart,
sound production, report, computer input or output, etc.). the location where it is
maintained, all identifying marks and codes, the name ofthe addressee, the document
date, author and persons to whom copies were sent or persons initiating or reading or
approving the document and the name ofeach of the present custodians of
the
document. If any such document was, but is no longer in your possession,or subject
to your control, or in existence, state whether it is (1) missing or lost, (2) has been
destroyed, (3) has been transferred, voluntarily or involuntarily, to others, or (4)
otherwise disposed of, and in each instance, explain the circumstances surrounding an
authorization for such disposition thereof aner-state the date or approximate date
thereof.
7.
"Occurrence" means and refers
to
the incidents leading to your injuries as alleged in
your Complaint.
2
Electronic Filing - Received, Clerk's Office, August 5, 2008
8.
"Oral Communication" means and refers to any
non~written
communication
occurring
by telephone or in-person meetings, conversations, conferences, or
discussions
of any kind.
9.
"Refer" or "relate" shall mean, in addition
to
the customary and usual meaning,
discuss or discussing, refer or referring, reflect or reflecting,
assess or assessing,
record or recording.
10.
\'You","Youi" and «Respondent" mean and refer to Hamman Farms, its agents,
employees,
attorneys, and representatives.
GENERAL INSTRUCTIONS
1.
Each Interrogatory listed herein shall be continuing in nature and shall be modified or
supplemented to include
any
additional infonnation, knowledge, or data responsive to
these Interrogatories which is later discovered by you. If you do not have all of the
information that you need
to make a complete response to these Interrogatories,
provide
all ofthe information that you do have, state that your information is
incomplete, identify the infonnation you would need to make a complete response,
and provide a supplemental
response when you obtain more infonnation.
2.
In the fonowing Interrogatories, the Respondent shall produce aU Documents
containing the requested infonnation within Respondent's possession, custody
or
controL
3.
Each request herein for a Document or Documents to be produced, whether
memoranda, reports, letters, minutes or other Documents
of any description, requires
the production
ofthe Document in its enticetyl without redaction or expurgation.
4.
In producing documents called for, segregate the documents so as to identify the
numbered Interrogatory to which each such document responds.
5.
If any document containing the requested information was, but is no longer in your
possession, or subject to your control, or in existence, state whether it is (a) missing
or lost,
(b) has been destroyed, (c) has been transferred, voluntarily or involuntarily,
to others, or (d) otherwise disposed of, and in each instance. explain the
circumstances surrounding,
and the authorization for such disposition, and state the
approximate date thereof.
6.
Your answer to each of these Interrogatories should be as responsive to each portion
thereof as
is reasonably possible, whether such portion is stated in a separate
sentence, or is stated
in conjunction with another portion or portions in a single
sentence.
If you object to a portion of any Interrogatory, you are instructed to answer
the remainder.
Electronic Filing - Received, Clerk's Office, August 5, 2008
7.
If you object to any Interrogatory or any part thereof on the basis of any claimed
privilege or doctrine, identify
the privilege or doctrine claimed, as well as each
statement or communication
for which such privilege is claimed, and provide the
following information with respect
to each such statement or communication:
a date;
b. names of persons present;
c. subject matter;
d. location andlor custodian; arid
e. the basis on which the privilege or doctrine is claimed.
8.
Your answer should include the identity of each person or persons answering the
Interrogatory or providing assistance or information for the answer.
9.
A request to identify a person means to set forth:
a. his or her name;
b. his or her title or position;
c. his or her present or last known business and home address;
d. .his or her present or last known employer; and
e. ifyour employee, his or her present area of responsibility.
Where the person identified is a business, entity or
fi~
set forth:
a. 'thefull name of business, entity or firm; and
b. the address ofits principal place ofbusiness.
For
any person identified, if any of the above information was different at the time
with which a particular Interrogatory is concerned, supply both current information
and
such different information as applies to the time in question.
10.
A
request to identify an oral communication means to set forth:
a. the date;
b. the nature of the communication
(e.g.,
telephone, face-to-face meeting);
c. the names of all persons present at the time of the communication; and
d. the substance ofthe communication.
11.
The past tense shall be construed to include the present tense, and vice versa, to make
the Interrogatory inclusive rather than exclusive.
12.
The singular shall be construed
to
include the plural, and vice versa, to make the
Interrogatory inclusive rather thap exclusive.
4
Electronic Filing - Received, Clerk's Office, August 5, 2008
13.
"And" as well as "or" should be construed either disjunctively or conjunctively, as
necessary, to bring within the scope of these Interrogatories any ipformation that
might otherwise
be construed as outside their scope.
14.
Regardless ofthe gender used, each Interrogatory, document request, instruction and
definition shall be construed to seek the requested infonnation for persons of both
genders, as is necessary to require the most inclusive response.
INTERROGATORIES
INTERROGATORY
NO.1:
State the name, address, telephone number and
employment position of the persop(s) answering these Interrogatories.
ANSWER:
INTERROGATORY NO.2:
Identify all individuals who possess knowledge of
each of the allegations in the Petition, and for each such individual, identify the allegation(s)
which the individual had knowledge of, the teleJ?hone number ofiliat individual. and describe the
extent ofhis/her knowledge and the basis for that knowledge.
ANSWER:
INTERROGATORY NO.3:
Identify all statements (whether written, recorded or
videotaped)
of any person with knowledge ofthe substance of each of the allegations in the
Petition.
ANSWER:
INTERROGATORY NO.4:
Identify any and all information upon which
Respondent
Hamman Farms has relied to support its application/requests for an increase in the
5
Electronic Filing - Received, Clerk's Office, August 5, 2008
rate of landscape waste applicatio
Il
, including but not limited to
the
following applications: April
10,2008. April 16. 2008, and April 23. 2008.
ANSWER:
INTERROGATORY NO; 5:
Identify all individuals and/or entities that have
conducted soil analysis tests and/or feed nutrient analyses on behalf ofRespondent Hamman
Farms or using samples taken
from
Respondent Hamman Farms' fields. With regard to each
individual/entity, state that person/agency's
full name, address, telephone number, and employer.
ANSWER:
INTERROGATORY NO.6:
Identify any and all information that supports
Respondent Hamman Farm'scontention
that its soil characteristics or crop needs require a
higher rate
of landscape waste application.
ANSWER:
INTERROGATORY NO.7:
Identify all persons possessing knowledge of
Respondent Hamman Farms' landscape waste application operations, including the amounts .of
landscape waste that has been applied to Respondent Hamman Farms' fields for the last ten years
and the source of the landscape waste that RespondeDt Hamman Farms applies to its fields.
ANSWER:
INTERROGATORY NO.8:
State the amoWlt oflandscape waste that
Respondent Hamman Farms
has applied to its fields each year for the previous ten years, and for
6
Electronic Filing - Received, Clerk's Office, August 5, 2008
each year, state the number of acres to which Respondent Hamman Farms applied the landscape
waste
and identify fields to which Respondent Hamman Farms applied the landscape.
ANSWER:
INTERROGATORY NO.9: '
State whether Respondent
Hamman Farms has
applied fertilizer
in addition to landscape waste to its fields, and if so, identify the dates on which
Respondent Hamman Fanns applied fertilizer to its fields and the types and amounts offertilizer
that Respondent Hamman
Farms
has
applied to its fields.
ANSWER:
INTERROGATORY
NO. J0:
Identify the types of crops that Respondent
Hamman Fanns
has
planted in its fields during the last ten years, the years that those crops were
planted. the exact field in which those crops were planted for each year the crop was planted, and
the yield ofthe crop each year it was planted.
ANSWER:
INTERROGATORY NO. 11:
State the procedures that Respondent Hamman
Farms employs
to prevent the application of garbage or other solid waste, with the exception of
landscape waste, to Respon<Ient'sHamman Farms fields, whether these procedures have been
successful in preventing the application of garbage or other solid waste to its fields, the dates and
times when Respondent Hamman Farms' procedures have failed to prevent the application of
garbage or other solid waste, any remedial efforts that Respondent Hamman Farms following
7
Electronic Filing - Received, Clerk's Office, August 5, 2008
application of garbage or other solid waste, and the identity of those persons with knowledge of
the above infonnation.
ANSWER:
INTERROGATORY NO. 12;
State the procedures that Respondent Hamman
Farms employs to control the emission of odor due to the Respondent Hamman Farms'
application
of landscape waste to its fields, whether these procedures have been successful in
preventing the emission ofodor due to Respondent Hamman Farms' application of landscape
waste, the dates
and times when Respondent Hamman Farms' procedures have failed to prevent
the emission of odor, any remedial efforts that Respondent Hamman Fanns following the
emission
ofodor due to the application of landscape waste, and the identity of those persons with
knowledge ofthe above infonnation.
ANSWER:
INTERROGATORY NO. 13:
State the number of times during the last ten years
that Respondent Hamman Farms
has failed to apply landscape waste within twenty-four (24)
hours
of receiving the load(s) of landscape waste, the dates and times that Respondent Hamman
Farms has failed to apply landscape waste within twenty-four (24) hours of receiving the load(s)
of landscape waste, the reason that Respondent Hamman Fanns failed to apply the landscape
waste within twenty-four (24) hours of receiving the load(s) oflandscape waste for each such
occurrence,
and the identify of persons with knowledge of the above information.
ANSWER:
8
Electronic Filing - Received, Clerk's Office, August 5, 2008
INTERROGATORY NO. 14:
Identify the number oftimes prior to April 10,2008
that Respondent Hamman Farms requested permission from the Illinois Environmental
Protection Agency to increase the rate of landscape waste application, the dates of those requests
andlor applications, the outcome ofthose requests. the individual(s) who assisted with the
preparation of each request
andlor
application, and any and all individuals possessing knowledge
of the prior requests andlor applications.
ANSWER:
INTERROGATORY NO. 15:
Identify all individuals possessing knowledge of
Respondent Hamman Farms' record-keeping procedures with regard to records of soil analysis
tests, types and amounts of fertilizer applied to Respondent Hamman Farms' fields, the types of
crops planted in each field. and the yield of each of Respondent Hamman Farms' fields.
ANSWER:
INTERROGATORY NO. 16:
State the number of times that the Illinois Pollution
Control Agency
has
issued violation notices to Respondent Hamman Farms, the dates that each
violation notice was issued, the basis ofeach violation notice, and the outcome of each violation
notice.
ANSWER:
INTERROGATORY NO. 17:
Identify the following:
a. The name, address, and telephone numbers of each and every Lay witness and
identify with specificity the subjects on which each witness will testify.
9
Electronic Filing - Received, Clerk's Office, August 5, 2008
b. The name, address, and telephone numbers of each and every independent expert
witness and identify the subjects on which each witness will testify
and
the
testimony that you expect to elicit.
c, The name, address, and telephone numbers of each and every controlled expert
witness and identify (i) the subject matter on which the witness will
testify~
(ii)
whether an examination, investigation or test of the trench or water main has been
made
by
the expert; (iii) the conclusions and.opinions of the witness
and
the bases
therefore; (iv) the qualifications ofthe witness; (v)
any
reports prepared
by
the
witness about the case; and (vi) the rates charged by the witness.
ANSWER:
INTERROGATORY NO. 18:
Identify all reports prepared
by
and
any
conclusions
or opinions reached by the experts identified in Interrogatory #17 of these Interrogatories, and
identify all documents those experts relied upon in fonnulation their conclusions or opinions.
ANSWER:
INTERROGATORY NO. 19:
Identify all witnesses that the Respondent Hamman
Farms intends to call as witnesses at the hearing and the subject matter .of each individual's
testimony.
ANSWER:
10
Electronic Filing - Received, Clerk's Office, August 5, 2008
INTERROGATORY NO. 20:
Identify all documents, reports, opinions or
calculations that Respondent intends
to
use in defense ofthis Petition, whether
by
introducing
them
as evidence or
by
using them on other ways during the proceedings, and as to each, identify
the content and purpose of each such document.
ANSWER:
Thomas G. Gardiner
Michelle
M. LaGrotta
Gardiner Koch
&
Weisberg
53 W Jackson Blvd., Ste. 950
Chicago,
IL 60604
(312) 362-0000
Law
Firm ID: 29637
11
Electronic Filing - Received, Clerk's Office, August 5, 2008
CERTIFICATE OF SERVICE
I, Michelle M. LaGrotta, the undersigned certify that on July 23, 2008, I have served the
attached PETITIONER UNITED CITY OF YORKVILLE'8INTERROGATORIES TO
RESPONDENT HAMMAN FARMS upon:
Michelle M. Ryan
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P,O. Box 19276
Springfield, IL 62794-9276
(via email to:Michelle.Ryan@IlIinois.govandU.S.Mail)
Charles F. Helsten
Nicola A. Nelson
Hinshaw
&
Culbertson
100 Park Avenue
P.O. Box ]389
Rockford, IL
61105~
1389
(via email to:NNelson@hinshawlaw.comandU.S.Mail)
~'dUIlt
Michelle M. Lacrrttta
IJ,
-:ZAtc'
12
Electronic Filing - Received, Clerk's Office, August 5, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED
CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
Petitioner.
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
and
HAMMAN .FARMS,
Respondents.
)
)
)
)
)
)
)
)
)
)
peBNo.08-95
(Ap~eal
of Agency Action)
PETITIONER UNITED CITY OF YORKVILLE'S REQUESTS TO PRODUCE OF
RESPONDENT HAMMAN FARMS
NOW COMES, Petitioner, United City
ofYorkville~
by and through its attorneys,
Gardiner Koch
&
Weisberg, pursuant to ILL.
ADMIN.
CODE TIT. 35 § 101.616, and directs the
Respondent
to produce the following documents, objects or tangible things on or before the
deadline set
by
the Hearing Officer:
DEFINITIONS
1.
"Andlor" shall be construed both disjunctively and conjunctively so as to require the
broadest possible
answer.
2.
"Communications" shall mean
any
verbal, written or other transmittal ofwoTds,
thoughts, ideas
or images between or among persons or gfQups ofpersons, whether in
person,
by
letter,
by
telephone or
any
other means including, without limitation,
discussions, conversations,
meetings, conferences, contracts, telephone conversations,
inquiries, interviews, negotiations, advertisements, agreements, understandings,
cards, letters; correspondence, telegrams, telexes, faxes, cables or other forms
of .
written or verbal intercourse, however transmitted, including reports, notes,
memoranda, lists, agenda,
video or audio recordings, writings, drawings, graphs,
charts, photographs,
phone records, and data compilations from which information
may be obtained (translated
if
necessary, through detection devices).
3.
"Date" means the exact day, month, and year
if
ascertainable; if not exactly
ascertainable,
then the closest approximation that can be made in tenns of days,
months,
and years, seasons, or in relation to other events of matters.
Electronic Filing - Received, Clerk's Office, August 5, 2008
4.
"Petitioner" means and refers to the United City of Yorkville, its agents, employees,
attorneys and representatives. "Person" means and refers to natural persons, groups of
natural persons acting.as individuals, groups of natural persons acting in a collegial
capacity
(e.
g.,
as a committee or board of directors), corporations, partnerships, joint
ventures, and any other incorporated or unincorporated business or social entity.
5.
"Document" means all writings of every kind in your custody, possession, or control
or in the custody, possession, or control of any agent, employee or representative
(including attorneys) of yours including, but not limited to letters, telegrams, e.maH
or electronic messages, telex messages, facsimile letters or transmissions,
memoranda, reports, drawings, studies, calendar or diary entries, maps, plans,
pamphlets, notes or records of meetings or conversations of any kind, charts, tabula-
tions, analyses, statistical or information accumulations, financial statements, bills,
receipts,
work
orders. purchase orders, invoices, canceled checks, general ledgers,
accounting records of
any
kind, film impressions, photographs. computer printouts or
materials from which such printouts may be obtained, magnetic tapes, sound or
mechanical reproductions, drafts, revisions, amendments or supplements of the
above, and copies of documents that are not identical duplicates of the originals
(because,
e.g.,
handwritten or "blind" notes appear thereon or are attached thereto).
6.
"Identify/'"Identifying" or "Identification," when used
in
reference to a natural
person, means to state his or her fuJI name
and
present or last known residential and
business address and telephone number. his or her present or last known position or
business affiliation; when used in reference to a business entity, means to state the
name, address, telephone number, and any .account or computer number to which
such entity is referred
'to
.in your records; when used in .reference to a communication,
means to state the parties to the communication, including parties present during the
communication, the means of communication, the date ofthe communication, the
place ofthe communication and the substance of the communication; when used
in
reference to a lawsuit, means to
state
the name of the suit, the place ofthe suit, the
caption ofthe suit, the date on which the suit was filed. and the counsel of record for
the party and/or parties on whose behalf the suit was filed; when used in reference to
a document, means to state the type of document (i.e., letter. memorandum, chart,
sound production, report, computer 'inputor output, etc.), the location where it is
maintained, all identifying marks and codes, the name of the addressee, the document
date, author and persons to whom copies were sent or persons initiating or reading or
approving the document and the name of each of the present custodians ofthe
document
If
any such document was, but is no longer in your possession, or subject
to your control, or in existence. state whether
it
is (1) missing or lost, (2) has been
destroyed, (3) has been transferred, voluntarily or involuntarily, to others, or (4)
otherwise disposed of, and in each instance, explain the circumstances surrounding an
authorization for such disposition thereof and state the date or approximate date
thereof.
7.
"Occurrence" means and refers to the incidents leading to your injuries as alleged in
your Complaint.
2
Electronic Filing - Received, Clerk's Office, August 5, 2008
8.
"Oral Communication" means and refers to any non-written communication
occurring by telephone or in-person meetings, conversations, conferences, or
discussions of any kind.
.
9.
"Refer" or "relate" shall mean, in additlon to the customary and usual meaning,
discuss or
discussin& refer or referring, reflect or reflecting, assess or assessing,
record or recording.
10.
"You", "Your" and "Respondent" mean and refer to Hamman Fanns, its agents,
employees, attorneys,
and representatives.
DOCUMENTS TO BE PRODUCED
REQUEST
NO.1: Any
and all applications, supplemental a.pplications, and/or
requests,
on behalfof Respondent Hamman Fanns, to the Illinois Environmental Protection
Agency requesting
an increase in the rate of landscape waste application.
RESPONSE:
BE,OUEST
NO.2:
Any
and all docmnents which Respondent Hamman Farms, and its
attorneys, experts and/or consultants, referred to, or on which they relied, when preparing their
applications, supplemental applications, and/or requests
to the Illinois Environmental Protection
Agency, including but not limited to:
a.
Any
and all documents relied upon in preparing Application Plan-Overview,
b. any and all documents relied upon
in
preparing Facility Operations and Application
Rate;
c. any and all documents relied upon in preparing Litter Control Procedures;
d. any and all documents relied upon
in
preparing Odor Control Procedures; and
e.
any
and aU
docwnents relied upon in detennining
the
Nitrogen
Calculations~
RESPONSE:
3
Electronic Filing - Received, Clerk's Office, August 5, 2008
REQUEST NO.3:
All documents, including correspondence,
Re~pondent
Hamman
Fanns received
from the Illinois Enviromnental Protection Agency regarding any and all
applications, supplemental applications,
and/or requests for an increase in the rate of landscape
waste application.
RESPONSE:
REQUEST
NO.4: All documents, including correspondence, Respondent Hamman
Faqns sent to the Illinois Environmental Protection Agency regarding
any
and all applications,
supplemental applications, and/or requests for an increase in the rate of landscape waste
application.
RESPONSE:
REQUEST
NO.5:
All documents referenced in Respondent's Answers to the
Interrogatories propounded by Petitioner United City of Yorkville.
RESPONSE:
REQUEST NO.6:
All documents that Respondent Hamman Farms, and its attorneys,
experts and/or consultants. utilized or relied upon when preparing and drafting the AnSwers to
the Interrogatories propounded
by
Petitioner United City ofYorkville in this action.
RESPONSE:
4
Electronic Filing - Received, Clerk's Office, August 5, 2008
REQUEST NO.7: All opinions, notes, or reports prepared by Aga S. .Razvi regarding
the subject matter of this action.
RESPONSE:
REQUEST
NO~
8: All
documents relied upon by Aga S. Razvi in preparing his report
of February 23, 2008, which was included in Respondenfs April 10, 2008 application.
RESPONSE:
REQUEST NO.9:
All opinions, notes, or reports prepared by persons retained
by
Respondent, whether as consultants or as expert witnesses, and all documents reviewed by such
persons on forming their
op~Dions,
notes, or reports.
RESPONSE:
REQUEST
NO.
10: The curriculum vitae of each expert retained or consulted by
Respondent concerning this action.
RESPONSE:
REQUEST NO.
11: The March 17, 2008 Steve Nightingale Memorandum referenced
in Respondent's April] 0, 2008 Application sent to
~he
ll1inois Environmental Protection
Agency.
RESPONSE:
5
Electronic Filing - Received, Clerk's Office, August 5, 2008
REQUEST NO. 12: Any and all documents that support Respondent Hamman Farms'
contention that its soil characteristics and crop needs require higher rates of landscape waste
application.
RESPONSE:
REQUEST NO. 13: All documents and/or other evidence Respondent Hamman Fanns
sent to and received from Midwest Laboratories, Inc. regarding any and all soil analysis tests and
feed nutrient analyses for the ten years prior to Respondent Hamman Fwms' Request of April
10. 2008, including but not limited to the following:
a. any and all documents supporting
the
location from where the samples were
obtained; and
b, any and all documents supporting the dates on which the samples were
obtained.
RESPONSE:
REQUEST NO. 14: Any and all documents regarding the type of soil and the nutrient
needs of the soil in the land occupied
by
Respondent Hamman Farms.
RESPONSE:
REQUEST NO. 15: Any and all documents showing the type and amount of fertilizer
and soil conditioner that Respondent Hamman Farms
has
applied to its fields for the last
ten
years.
RESPONSE:
6
Electronic Filing - Received, Clerk's Office, August 5, 2008
REQUEST NO. 16: Any and-all documents showing and/or recording the amount of
landscape waste Respondent Hamman Fanns has applied to its fields for the last ten years.
RESPONSE:
REQUEST NO. 17: Any
and all documents, including but not limited to records and
contracts, tending
to
show the source ofthe landscape waste that Respondent Hamman Farms
applies
to its fields.
RESPONSE:
REQUEST NO. 18: Any and
all violation notices that Respondent Hamman Farms
received from the Illinois Environmental Protection Agency.
RESPONSE:
REQUEST NO. 19: All documents that the Respondent Hamman Fanns intends to use
andlor
enter into evidence
in
this action, whether at hearing
o~
to support .any motion.
RESPONSE:
REQUEST NO. 20: Respondent Hamman Farms is requested to furnish an Affidavit
stating whether
the production
is
complete.
RESPONSE:
7
Electronic Filing - Received, Clerk's Office, August 5, 2008
Thomas G. Gardiner
Michelle
M. LaGrotta
Gardiner Koch
&
Weisberg
53 W Jackson Blvd., Ste. 950
Chicago, IL 60604
(312)
362~OOOO
Law Firm ID: 29637
RespectfuIly
submitied,
8
Electronic Filing - Received, Clerk's Office, August 5, 2008
CERTIFICATE OF SERVICE
I, Michelle M. LaGrotta, the undersigned certify that on July 23, 2008, I have served the
attached PETITIONER UNITED CITY OF YORKVILLE'S
REQUESTS TO
PRODUCE
OF RESPONDENT HAMMAN FARMS upon:
Michelle M. Ryan
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield) IL 62794.9276
(via email to:Michelle.Ryan@lllinois.govandU.S.Mail)
Charles F. Heisten
. Nicola A. Nelson
Hinshaw
& Culbertson
100
Park Avenue
P.O. Box 1389
Rockford,IL 61105-1389
(via email to:NNelson@hinshawlaw.comandU.S.Mail)
MicheUili LaGrotta
9
Electronic Filing - Received, Clerk's Office, August 5, 2008
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 ofthe Illinois Code of Civil
Procedure, hereby under penalty ofpeIjury under the laws
ofthe United States ofAmerica,
certifies that
on August 5, 2008, she caused to be served a copy of the foregoing upon:
Mr. John
T. Therriault, Assistant Clerk
Illinois Pollution Control Board
100 W.
Randolp~
Suite 11-500
Chicago, IL
60601
therriaj@ipcb.state.lI.us
(via electronic filing)
via e-mail
Michelle Ryan
Division
ofLegal Counsel
Illinois Environmental Protection Agency
1021 N. Grand Avenue
East
P.O. Box 19276
Springfield, IL 62794-9276
Michelle.Ryan@Dlinois.gov
via e-mail
Thomas G. Gardiner
Michelle
M. LaGrotta
GARDINER KOCH
&
WEISBERG
53 W. Jackson Blvd., Ste. 950
Chicago, IL 60604
tgardiner@gkw-Iaw.com
mlagrotta@gkw-Iaw.com
via emaill
Bradley
P. Halloran
Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center, Suite 11-500
100 w. Randolph Street
Chicago, IL
60601
hallorab@ipcb.state.il.us
A copy of the same was enclosed in an envelope
in
the United States mail at Rockford, Illinois,
proper postage prepaid, before the hour of 5:00 p.m.,
~~ssed"-,,$:
~r(lM(
,.~
J
PCB No. 08-95
Charles F. Helsten
Nicola
A.
Nelson
HINSHAW & CULBERTSON
100 Park Avenue
P.O. Box
1389
Rockford, IL 61105-1389
(815) 490-4900
70566472vl66799B90519
Electronic Filing - Received, Clerk's Office, August 5, 2008
