United States District Court, C.D. Illinois, Springfield Division
NATURAL RESOURCES DEFENSE COUNCIL, INC.; RESPIRATORY HEALTH ASSOCIATION; AND SIERRA CLUB, INC., Plaintiffs,
ILLINOIS POWER RESOURCES GENERATING, LLC, Defendant.
SCHANZLE-HASKINS UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Plaintiffs' Motion to
Compel Answers to Questions on IPRG's Consideration of
Measures to Control Opacity or Particulate Matter Pollution
from the Edwards Power Plant (d/e 171) (Motion). Plaintiffs
ask the Court to compel Defendant Illinois Power Resources
Generating, LLC (Illinois Power or IPRG) to answer certain
questions that were posed at the Rule 30(b)(6) deposition of
Ted Lindenbusch. For the reasons set forth below, the Motion
District Court found Illinois Power liable for violations of
the Clean Air Act because the smoke stack emissions from the
Edwards Power Plant (Plant) exceeded the limits on opacity
caused by particulate material (sometimes referred to as PM)
in the emissions. Opinion and Order entered August 23,
2016 (d/e 124), at 49. The matter is set for a trial on
remedies on March 4, 2019. Text Order entered December
14, 2017. The parties are engaged in discovery for the
remedy phase of the matter.
noticed a Rule 30(b)(6) deposition of Illinois Power. The
first topic of inquiry for the deposition (Topic 1) was:
Steps considered, analyzed, or evaluated (and whether or not
those steps were taken or rejected) that would have the
effect of controlling or otherwise reducing opacity or
[particulate matter] emissions at the Facility, including, by
way of example repairs or other improvements to existing
ESPs, installation of new or supplemental ESPs (a/k/a/ helper
ESPs), and/or installation of a baghouse.
Motion, attached Declaration of Ian Fisher in Support of
Motion to Compel Answers to Questions of IPRG's
Consideration of Measures to Control Opacity or
Particulate Matter Pollution from the Edwards Power Plant
(Fisher Declaration) ¶ 4. The Edwards Plant used
electrostatic precipitators (ESPs) to remove particulate
pollution from the smoke stack emissions from the Edwards
Plant. See Motion, at 4.
Power designated Lindenbusch to be its representative to
testify regarding Topic 1. Lindenbusch has been manager of
the Plant since 2013. Plaintiffs' counsel questioned
Lindenbusch about efforts to control particulates. As part of
these inquiries, Plaintiffs' counsel asked about Illinois
Power's capital spending plans (Spending Plans) used in
its regular budgeting process. Plaintiffs asked about a
Spending Plan formulated in 2013 for 2014-2018, one
formulated in 2014 for 2015-2019, one formulated in 2015 for
2016-2020, and one formulated in 2016 for 2017-2021.
Fisher Declaration, ¶ 3 and Exhibit A, see
Transcript of Rule 30(b)(6) Deposition Ted Lindenbusch dated
December 21, 2017 (filed under seal d/e 173)
(Deposition), at 179.
2016-2020 Spending Plan included a total of $2.3 million in
capital spending in 2017 and 2018 on upgrades to particulate
pollution controls on Unit 2 of the Edwards Plant and $8.9
million in upgrades to particulate pollution controls on Unit
3 of the Edwards Plant, all to be completed in 2017 and 2018.
Fisher Declaration, ¶ 13. The $2.3 million
upgrade on Unit 2 included an estimate of $200, 000 in
removal costs. Deposition, at 128, 135-36. The $8.9
million in upgrades on Unit 3 included $800, 000.00 in
removal costs. Id. The 2017-2021 Spending Plan
included a total of $1.1 million of spending in upgrades on
Unit 2 and $4.00 for Unit 3. The $4.00 were four $1.00
entries that Lindenbusch described as placeholder entries.
Id. ¶ 18. He put the placeholder sums of $1.00
in these line items to keep the budget lines in the planning
budget for future consideration. Deposition, at
the course of the Lindenbusch Rule 30(b)(6) deposition,
Lindenbusch refused to answer questions regarding line items
that set forth the $2.3 million and $8.9 million in the
2016-2020 spending plan and the $1.1 million and $4.00 in
2017-2021 spending plan (Line Items). The questions included
whether the Line Items contemplated installation or upgrades
to various means to reduce particulate pollution and why the
plans changed. The questions asked about consideration of
upgrades to the existing ESPs, installation of additional
ESPs, and about adding a baghouse to the Plant. A baghouse is
another means to limit particulate pollution. See
Motion, at 4. Lindenbusch refused to answer most of the
Plaintiffs' questions regarding the Line Items. He and
his counsel asserted attorney-client and work product
privileges. See e.g., Deposition, at
Plaintiffs asks the Court overrule Illinois Power's
claims of privilege and order Illinois Power to provide
written answers to the following questions (Questions) that
Lindenbusch refused to answer:
a. “What about the option of moving a baghouse; what is
the last time that IPRG considered the option of moving a
baghouse to the Edwards plant?” Motion,
Exhibit A Transcript of Rule 30(b)(6) Deposition of Ted
Lindenbusch(Exhibit A), at 30:5-9. “When was
that?” Id. at 32:20.
b. “When was that step, the complete rebuild of the
units two and three precipitators, last considered by
IPRG?” Id. at 35:13-15.
c. “Has IPRG ever considered adding specific collection
area to any of the precipitators at the Edwards plant?”
Id. at 36:16-18.
d. “Since . . . February 10th, 2015; has IPRG received
any proposals to install new equipment that could help to
reduce opacity or PM emissions at Edwards?”
Id. at 60:13-17.
e. [Referring to the $2.3 million and $8.9 million entries in
the Line Items] “And why did you come up with that
concept of the two-year project?” Id. at
f. [Referring to the $2.3 million and $8.9 million entries in
the Line Items]: “What accounts for the difference in
the figures for the unit two precipitator upgrade and the
unit three precipitator upgrade on this page of the
exhibit?” Id. at 136:3-6. “What other
factors are you aware of?” Id. at 137:1-2.
“What other factors are you aware of besides the one
you just mentioned which is the different size of the two
units?” Id. at 137:8-10. “What would be
different about the scope?” Id. at 137:19-20.
g. [Referring to the $2.3 million and $8.9 million entries in
the Line Items]: “What kind of work needed to be done
to the unit two ...