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Natural Resources Defense Council, Inc. v. Illinois Power Resources Generating, LLC

United States District Court, C.D. Illinois, Springfield Division

January 22, 2018

NATURAL RESOURCES DEFENSE COUNCIL, INC.; RESPIRATORY HEALTH ASSOCIATION; AND SIERRA CLUB, INC., Plaintiffs,
v.
ILLINOIS POWER RESOURCES GENERATING, LLC, Defendant.

          OPINION

          TOM SCHANZLE-HASKINS UNITED STATES MAGISTRATE JUDGE.

         This 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 is DENIED.

         BACKGROUND

         The 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.

         Plaintiffs 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.

         Illinois 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.

         The 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.[1] 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 190-93.

         During 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 153-54.

         The 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 135:1-2.
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 ...

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