Opinion
Case No. 3:04-cv-418.
May 5, 2006
DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S ORAL MOTION TO COMPEL AN ANSWER TO PLAINTIFF'S REVISED INTERROGATORY NO. 30
This case is before the Court on Plaintiff's oral motion to compel an answer to her revised interrogatory no. 30. Defendant has filed its Objections (Doc. No. 31) and Plaintiff has filed a reply memorandum in support (Doc. No. 33).
The interrogatory requests Defendant to state whether each of twenty-nine separately identified "units" (identified in ways which are apparently understood by the parties but not as yet by the Court) has actually emitted particulate matter, dust, fumes, gas, mist, radionuclides, smoke, vapor, odorous substance, or any combination of these at any time within the past five years.
This collective descriptor is suggested by Defendant.
The time limitation appears in the Plaintiff's reply memorandum, but not in the original interrogatory as submitted.
Defendant responds that in one sense an answer would be meaningless because virtually all "[e]very human activity or mechanical operation could and probably does emit one or more of the substances listed in this interrogatory at some point." However, Defendant admits that it has determined as to some of these units that they have actually emitted some of the substances listed and that such emissions are documented in identified documents.
Of course there are particular units listed in the interrogatory which Perma-Fix can reliably say have "actually emitted" one or more of the listed substances. To the extent that Perma-Fix has the data from which actual emissions or potential emissions can be calculated for such units, it has already been produced to plaintiff in Perma-Fix's potential to emit submissions to the United States EPA. (PFD02639-02688, PFD02775-02974, SYA01789-01843 and SYA04445-04507.)
As to each unit identified in the preceding paragraph, it imposes no burden on Defendant to answer "yes." As to any other units referenced in the interrogatory, it imposes no burden on Defendant to answer that it does not know. Defendant is not obliged by the interrogatory to attempt to make a determination now as to those units as to which it does not presently have knowledge and the Court does not understand Plaintiff to be attempting to impose such an obligation.
As to those units which Defendant knows have emitted one or more of the listed substances, Plaintiff requests Defendant to state whether it "acknowledges that each needs a permit pursuant to O[hio] A[dministrative] C[ode] § 3745-31-02." Defendant objects that this calls for a "pure legal conclusion." Defendant cites no authority for this objection. Interrogatories which ask for contentions are appropriate. Starcher v. Correctional Medical Systems, 144 F. 3d 418 (6th Cir. 1998), citing Taylor v. FDIC, 132 F. 3d 753, 762 (D.C. Cir. 1997), and Vidimos, Inc., v. Laser Lab Ltd., 99 F. 3d 217, 222 (7th Cir. 1997); see also, Continental Illinois Nat. Bank Trust v. Caton, 136 F.R.D. 682, 684 (D. Kan. 1991); Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 157 (D. Del. 1977). All this portion of the interrogatory, as construed by the Court, asks is whether Defendant contends that these units do not need a permit under the referenced regulation.
As the revised interrogatory has been construed herein, it is proper. Defendant shall provide an answer thereto in the form required by Fed.R.Civ.P. 33 not later than May 15, 2006.