ILLINOIS POLLUTION CONTROL BOARD
October 20, 2005
MORTON F. DOROTHY,
Complainant,
v.
FLEX-N-GATE CORPORATION, an Illinois
corporation,
Respondent.
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PCB 05-49
(Citizens Enforcement – Air, Land)
ORDER OF THE BOARD (by N. J. Melas):
On September 9, 2004, Mr. Morton F. Dorothy filed a six-count citizens’ enforcement
complaint against Flex-N-Gate Corporation (Flex-N-Gate).
See
415 ILCS 5/31(d) (2004); 35 Ill.
Adm. Code 103.204. The complaint concerns Flex-N-Gate’s facility, known as Guardian West,
located at 601 Guardian Drive, Urbana, Champaign County where Flex-N-Gate produces
bumpers for vehicles. The complaint alleges that as a result of an alleged spill of sulfuric acid
inside the facility on August 5, 2004, Flex-N-Gate violated the Environmental Protection Act
(Act) (415 ILCS 5/1
et seq
. (2004)) and various provisions of the Board’s hazardous waste rules.
This case involves the Board’s Resources Conservation and Recovery Act (RCRA)
regulations that apply to generators of hazardous wastes and facilities that treat, store and dispose
of hazardous wastes (TSDFs). A single facility may contain several types or combinations of
operational units.
On May 27, 2005, Flex-N-Gate filed a motion for summary judgment as to all counts of
the complaint (Mot. for SJ), and in the alternative, a motion for partial summary judgment on
counts II through VI of the complaint (Mot. for SJ II-VI). On June 23, 2005, Mr. Dorothy filed a
motion for partial summary judgment as to count I of the complaint, accompanied by an affidavit
(Mot. for SJ II-VI). The parties’ responses and various other pleadings are discussed below.
Today the Board addresses the motions for summary judgment filed by both parties. The
Board also addresses several outstanding motions filed in this proceeding, and the remaining
discovery motions will be handled by the hearing officer. For the reasons set forth below, the
Board grants summary judgment in favor of Flex-N-Gate as to counts II through VI of the
complaint and denies both parties’ motions for summary judgment on count I, directing the
hearing officer to proceed expeditiously to hearing on that count.
PROCEDURAL HISTORY
On March 7, 2005, Flex-N-Gate answered the complaint. On April 15, 2005, Mr.
Dorothy moved to strike Flex-N-Gate’s answer.
2
Pursuant to a discovery schedule set by hearing officer order, Mr. Dorothy’s discovery
requests were to be mailed by March 17, 2005. Flex-N-Gate’s responses were to be mailed by
April 14, 2005. On April 28, 2005, Mr. Dorothy filed a motion to compel a response to
interrogatories, to compel Flex-N-Gate to admit the truth of certain facts, and to compel the
production of documents. Mot. to Compel. On May 27, 2005, Flex-N-Gate moved for summary
judgment in its favor and also moved the Board for a protective order concerning Mr. Dorothy’s
discovery requests. Mr. Dorothy moved for partial summary judgment in his favor on June 6,
2005.
On June 7, 2005, Mr. Dorothy moved the Board for more time to respond to the motion
for summary judgment, to withdraw his motion to strike Flex-N-Gate’s answer, for sanctions
against Flex-N-Gate for evasive pleadings (MD Mot. for Sanctions), and to reconsider the June
7, 2005 hearing officer order. Also on June 7, 2005, Mr. Dorothy responded to Flex-N-Gate’s
motion for a protective order. On June 27, 2005, Mr. Dorothy responded to Flex-N-Gate’s
motions for summary judgment (Resp. to Mot. for SJ and SJ II-VI), accompanied by an affidavit
in support of his responses.
On July 18, 2005, Flex-N-Gate moved to strike unsupported statements included in
affidavits filed by Mr. Dorothy in support of his motion for summary judgment (FNG Mot. to
Strike) and respond to Mr. Dorothy’s motion for partial summary judgment (Resp. to Mot. for SJ
II-VIJ). Also on July 18, 2005, Flex-N-Gate requested leave to file a reply in support of its
motion for summary judgment. Mr. Dorothy responded to the motions on July 20, 2005.
On July 22, 2005, Mr. Dorothy moved the Board to “strike false statements made in
motions, and to admonish Respondent Flex-N-Gate Corporation to stick to the facts.” MD Mot.
to Strike. Also on July 22, 2005, Mr. Dorothy moved to substitute affidavits.
On July 28, 2005, Mr. Dorothy moved again to substitute affidavits, submitted a second
amended affidavit (Dorothy Aff. 3), and responded to Flex-N-Gate’s motion to strike and
admonish (MD Resp.). Also on July 28, 2005, Flex-N-Gate responded to Mr. Dorothy’s motion
to substitute affidavits, responded to Mr. Dorothy’s motion for leave to reply, and responded to
Mr. Dorothy’s motion to strike and for admonishment (FNG Resp.).
On August 11, 2005, Flex-N-Gate moved for leave to reply in support of its motion to
strike Mr. Dorothy’s affidavits and unsupported statements. On the same day, Flex-N-Gate also
responded to Mr. Dorothy’s second motion to substitute affidavits.
PRELIMINARY MATTERS
On June 7, 2005, Mr. Dorothy moved to withdraw his motion to strike. The Board grants
Mr. Dorothy’s motion to withdraw, making no findings regarding Mr. Dorothy’s allegations.
The parties have both requested leave to file replies in support of their respective motions
for summary judgment. The Board’s procedural rules provide “[t]he moving person will not
have the right to reply, except as permitted by the Board or the hearing officer to prevent
3
material prejudice.” 35 Ill. Adm. Code 101.500(e). The Board grants both parties leave to reply
to the respective motions for summary judgment, accepts their replies, and considers the replies
in deciding the pending motions for summary judgment.
The Board also grants both Flex-N-Gate’s (May 16 and June 3, 2005) and both Mr.
Dorothy’s (July 22 and 28, 2005) motions to substitute affidavits. The remaining motions, such
as Mr. Dorothy’s motions to compel and for reconsideration of the June 7, 2005 hearing officer
order, and Flex-N-Gate’s motion for a protective order, are denied as moot.
BACKGROUND
Flex-N-Gate owns and operates a vehicle bumper manufacturing facility located at 601
Guardian Drive in Urbana, Illinois (Guardian West facility). Comp. at 3-4. The manufacturing
process includes a nickel and chromium electroplating line in which steel bumpers are cleaned,
electroplated with several layers of nickel, electroplated with chromium, and rinsed. Comp. at 4.
The cleaning, plating and rinsing operations take place in open-top tanks holding up to 10,000
gallons of various chemicals in water solution. Comp. at 5.
Wastewater at the Guardian West facility is treated. Comp. at 13. Following treatment,
liquids are discharged to a publicly owned treatment works (POTW) operated by the cities of
Champaign and Urbana, Illinois. Comp. at 8; Dodson Aff. at 2. Following the dewatering
process of treatment, the remaining solids are placed into a satellite accumulation container in
preparation for placement into 90-day accumulation containers and subsequently shipped off-site
for recycling. Dodson Aff. at 2.
The wastewater treatment process at the Guardian West facility also produces sludge.
Dodson Aff. at 4, 9, 18. The sludge is located in wastewater treatment equipment. Flex-N-Gate
removes the sludge from the equipment and accumulates the sludge in containers prior to the
transportation of the sludge off-site for recycling.
Id
. at 9. The Guardian West facility produces
10 other streams of RCRA hazardous waste. Ans. to Comp. Interrogs., No. 3.
On August 5, 2004, the pipe from bulk storage to Tank No. 8 separated at the fitting
located above the valve in the vertical portion of the pipe that is outside the tank. Rice Aff. at 4.
Flex-N-Gate claims that the separation occurred due to having used the wrong adhesive to join
the pipe to the fitting.
Id
. The separation allowed a small quantity of sulfuric acid to be released
to the plating room floor.
Id
.
At one time a “day tank,” as identified by Mr. Dorothy in the complaint, was located in
the plating room. Flex-N-Gate stopped using the day tank as described, however, and replumbed
the system in December 2001, more than two and a half years before the separation occurred on
August 5, 2004. Rice Aff. at 4. According to Flex-N-Gate, on August 5, 2004, the day tank did
not contain any substance of any kind, and the separation of the pipe did not “empt[y] the day
tank.” Rice Aff. at 5. Further, Mr. Denny Corbett, the Corporate Safety Director for Flex-N-
Gate Corporation, states that no fire or explosion occurred at the facility on August 5, 2004.
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Ms. Jackie Christiansen is the environmental manager at the Guardian West facility.
Christiansen Aff. at 1. Ms. Christiansen states that Flex-N-Gate has an Emergency Response
and Contingency Plan for the facility, portions of which serve as both the facility’s contingency
plan under Subpart D to 35 Ill. Adm. Code Part 725 and the facility’s emergency response plan
under the Occupational Safety and Health Act (29 C.F.R. §1910.120(p)(8)(i)). Christiansen Aff.
at 1-2. Ms. Christiansen states that the plan does not focus on hazardous waste, but “hazardous
material spills,” and addresses any type of hazardous substance at the facility. Christiansen Aff.
at 2.
THE COMPLAINT
Mr. Dorothy’s September 9, 2004 complaint concerns an alleged August 5, 2004 spill of
sulfuric acid at Flex-N-Gate’s Guardian West bumper manufacturing facility. Mr. Dorothy
alleges that Flex-N-Gate violated Section 21(f) of the Environmental Protection Act (Act) and
Section 703.121, and Sections 725.151(b), 725.156(j), 725.154(b), 725.154(c) of the Board’s
Interim Status Standards For Owners And Operators Of Hazardous Waste Treatment, Storage,
And Disposal Facilities. Mr. Dorothy alleges that Flex-N-Gate violated these provisions by: (1)
operating the facility without a Resources Conservation Recovery Act (RCRA) permit or interim
status; (2) failing to carry out a contingency plan; (3) failing to notify the Illinois Environmental
Protection Agency (Agency); (4) failing to amend the contingency plan after the alleged spill; (5)
failing to amend the contingency plan in response to changed circumstances; and (6) failing to
amend the contingency plan as required by the plan.
APPLICABLE STATUTES AND BOARD REGULATIONS
Section 21(f) of the Act states in pertinent part:
No person shall:
(f)
Conduct any hazardous waste-storage, hazardous waste-treatment
or hazardous waste-disposal operation:
(1)
without a RCRA permit for the site issued by the Agency
under subsection (d) of Section 39 of this Act, or in
violation of any condition imposed by such permit,
including periodic reports and full access to adequate
records and the inspection of facilities, as may be necessary
to assure compliance with this Act and may be necessary to
assure compliance with this Act and with regulations and
standards adopted thereunder; or
(2)
in violation of any regulations or standards adopted by the
Board under this Act;
* * *
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Section 703.121(a) of the Board’s procedural rules regarding RCRA permits states:
a)
No person may conduct any hazardous waste storage, hazardous waste
treatment, or hazardous waste disposal operation as follows:
1)
Without a RCRA permit for the HWM (hazardous waste
management) facility; or
2)
In violation of any condition imposed by a RCRA permit.
Section 703.123 of the Board’s RCRA permitting regulations provides specific
exclusions from the program:
The following persons are among those that are not required to obtain a
RCRA permit:
a)
Generators that accumulate hazardous waste on-site for less than
the time periods provided in 35 Ill. Adm. Code 722.134;
* * *
e)
An owner or operator of an elementary neutralization unit
or wastewater treatment unit, as defined in 35 Ill. Adm.
Code 720.110;
Section 720.110 defines “wastewater treatment unit” as “a device of which the following
is true:”
It is part of a wastewater treatment facility that has an NPDES permit
pursuant to 35 Ill. Adm. Code 309 or a pretreatment permit or authorization
to discharge pursuant to 35 Ill. Adm. Code 310; and
It receives and treats or stores an influent wastewater that is a hazardous
waste as defined in 35 Ill. Adm. Code 721.103, or generates and accumulates
a wastewater treatment sludge that is a hazardous waste as defined in 35 Ill.
Adm. Code 721.103, or treats or stores a wastewater treatment sludge that is
a hazardous waste as defined in 35 Ill. Adm. Code 721.103; and
It meets the definition of tank or tank system in this Section.
Section 720.110 defines facility as:
All contiguous land and structures, other appurtenances, and improvements
on the land used for treating, storing, or disposing of hazardous waste. A
facility may consist of several treatment, storage, or disposal operational
units (e.g., one or more landfills, surface impoundments, or combinations of
them).
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* * *
Section 720.110 defines “tank” or “tank system” as:
“Tank” means a stationary device, designed to contain an accumulation of
hazardous waste that is constructed primarily of non-earthen materials (e.g.,
wood, concrete, steel, plastic) that provide structural support.
“Tank system” means a hazardous waste storage or treatment tank and its
associated ancillary equipment and containment system.
Subsection 725.151(b) regarding the purpose and implementation of the contingency plan
provides:
b)
The provisions of the plan must be carried out immediately whenever there is a
fire, explosion, or release of hazardous waste or hazardous waste constituents that
could threaten human health or the environment. 35 Ill. Adm. Code 725.151(b).
Subsections 725.154(b) and (c) discuss what occurrences trigger the amendment of a
contingency plan:
b)
The plan fails in an emergency;
c)
The facility changes--in its design, construction, operation, maintenance, or other
circumstances--in a way that materially increases the potential for fires,
explosions, or releases of hazardous waste or hazardous waste constituents or
changes the response necessary in an emergency. 35 Ill. Adm. Code 725.154(b),
(c).
Subsection 725.156(j) concerning actions taken in response to an emergency states:
j)
The owner or operator must note in the operating record the time, date, and details
of any incident that requires implementing the contingency plan. Within 15 days
after the incident, it must submit a written report on the incident to the Agency.
The report must include the following information:
1)
The name, address, and telephone number of the owner or operator;
2)
The name, address, and telephone number of the facility;
3)
The date, time, and type of incident (e.g., fire, explosion, etc.);
4)
The name and quantity of materials involved;
5)
The extent of injuries, if any;
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6)
An assessment of actual or potential hazards to human health or the
environment, where this is applicable; and
7)
The estimated quantity and disposition of recovered material that resulted
from the incident. 35 Ill. Adm. Code 725.156(j).
MR. DOROTHY’S MOTION FOR SANCTIONS
On June 7, 2005, Mr. Dorothy moved the Board to sanction Flex-N-Gate for evasive
pleadings. Mr. Dorothy claims that an allegation contained in Flex-N-Gate’s March 7, 2005
answer was not adequately specific, and therefore, evasive. In support, Mr. Dorothy cites to
Section 2-610 of the Illinois Civil Practice Act. MD Mot. for Sanctions at 2; citing 735 ILCS
5/2-610. In terms of relief, Mr. Dorothy requests the hearing officer “to determine reasonable
compensation for the complainant for expenses and unnecessary work as a result of respondent’s
evasive pleading.”
While the Board does not have a procedural rule specifically applicable to evasive
pleading, procedural rules exist governing when the Board may order sanctions. Section 101.800
states the Board may order sanctions where “any person unreasonably fails to comply with any
provision of 35 Ill. Adm. Code 101 through 130 or any order entered by the Board or the hearing
officer, including any subpoena issued by the Board.” 35 Ill. Adm. Code 101.800. The Board
finds that Flex-N-Gate’s answer was appropriately specific by simply denying the portion of Mr.
Dorothy’s complaint it found untrue. Flex-N-Gate maintains its original answer to the
complaint. Finding that Flex-N-Gate did not unreasonably fail to comply with the Board’s
procedural rules, or with any Board or hearing officer order, the Board denies Mr. Dorothy’s
motion for sanctions.
FLEX-N-GATE’S MOTION TO STRIKE AFFIDAVITS AND FOR ADMONISHMENT
Flex-N-Gate’s Arguments
Flex-N-Gate moves the Board to strike affidavits that Mr. Dorothy submitted in support
of both his motion for partial summary judgment and his responses to Flex-N-Gate’s motion for
summary judgment, dated June 20 and 24, 2005, respectively. Flex-N-Gate further states that
Mr. Dorothy’s repeated violations of the Board’s rules rise to sanctionable behavior under
Section 101.800. However, rather than seeking sanctions against Mr. Dorothy, Flex-N-Gate asks
only that the Board admonish Mr. Dorothy to comply with the Board’s rules. FNG Mot. to
Strike. at 30.
In the motion to strike, Flex-N-Gate lists the various statements within Mr. Dorothy’s
affidavits that it believes do not meet the legal standard for affidavits. Flex-N-Gate states that
the Board only considers affidavits that meet the standards of Illinois Supreme Court Rule
191(a). FNG Mot. to Strike at 2; citing
Johnson v. ADM-Demeter, Hoopeston Div., PCB 98-31,
slip op. at 2 (Jan. 7 1999);
People v. D’Angelo Enterprises, Inc., PCB 97-66 (Nov. 19, 1998).
8
More specifically, Flex-N-Gate states the Board has held that under Rule 191(a),
affidavits submitted in support of a motion for summary judgment may not include opinions and
conclusions. FNG Mot. to Strike at 3; citing
Trepanier,
et al.
v. Speedway Wrecking Co.,
et al.
,
PCB 97-50, slip op. at 16-17 (Oct. 15, 1998). Further, Flex-N-Gate states that the Board has
struck portions of an affidavit in the past that were not within the affiant’s personal knowledge,
and other portions of the affidavit that the Board found to be self-serving and conclusory. FNG
Mot. to Strike at 3; citing
Heiser v. OSFM, PCB 94-377, slip op. at 8-9 (Sept. 21, 1995); 2222
Elston LLC v. Purex Indus., Inc.,
et al.
, PCB 03-55 slip op. at 17-19 (June 19, 2003); IEPA v.
Rhodes, PCB 71-53, slip op. at 1 (Jan. 24, 1972).
Flex-N-Gate states that once the offending portions of Mr. Dorothy’s affidavits are
stricken, Mr. Dorothy’s motion for partial summary judgment and response to the respondent’s
motion for summary judgment are no longer adequately supported. Flex-N-Gate states that
Section 101.504 of the Board’s procedural rules states that “[f]acts asserted that are not of record
in the proceeding must be supported by oath, affidavit, or certification in accordance with
Section 1-109 of the Code of Civil Procedure.” FNG Mot. to Strike at 16; citing 35 Ill. Adm.
Code 101.504.
With respect to the request to admonish, Flex-N-Gate states that despite the Board’s
standards for asserting facts in Section 101.504, Mr. Dorothy has repeatedly attempted to base
his filings on alleged facts with no support. FNG Mot. to Strike at 21. In addition to
unsupported allegations, Flex-N-Gate claims that Mr. Dorothy’s affidavits contain prejudicial
allegations and conclusions not based on personal knowledge.
Id
. at 22, 26. Flex-N-Gate
reminds the Board that Mr. Dorothy is an attorney, licensed to practice law in Illinois. Thus, the
Board should not hesitate to require Mr. Dorothy to comply with the Board’s rules. FNG Mot. to
Strike at 28-29. Flex-N-Gate flatly states it has been prejudiced by Mr. Dorothy’s unsupported
allegations of intentional misconduct and other repeated violations of the Board’s rules.
Nonetheless, Flex-N-Gate does not request sanctions, but rather asks that the Board admonish
Mr. Dorothy and demand his future compliance with Board rules and procedures. FNG Mot. to
Strike at 30.
Mr. Dorothy’s Response
In his July 28, 2005 response, Mr. Dorothy states that Rule 191(a) does not on its face
apply to citizen’s enforcement actions under the Act. MD Resp. at 2. Mr. Dorothy states he
“does not feel that it is necessary to attach copies of documents that are already on file in this
case,” and he “is an unemployed factory worker who uses coin-operated, public copying
machines. Making duplicative copies of documents in this manner is extraordinarily time-
consuming and expensive.” MD Resp. at 4. Accordingly, Mr. Dorothy requests the Board to
allow him to dispense with any requirement to attach to affidavits copies of documents already
part of the Board’s record.
Mr. Dorothy further states that although he is a “qualified expert in many of these areas,
Complainant will not attempt to qualify himself, resting on the position that, as the complainant,
he is not subject to such ‘qualification.’” Mr. Dorothy also states he could make similar
9
objections to the respondent’s affidavits, but that he “does not wish to further vex the Board.”
MD Resp. at 4.
Board Analysis
The Board is persuaded by Flex-N-Gate’s argument and strikes all portions of Mr.
Dorothy’s affidavits that are opinions or draw legal conclusions, and all allegations of which he
has not shown to have personal knowledge. The Board also denies Mr. Dorothy’s request for
leave from attaching supporting documentation to affidavits he files in this proceeding.
Concerning motions and responses in general, the Board’s procedural rules state: “[f]acts
asserted that are not of record in the proceeding must be supported by oath, affidavit, or
certification in accordance with Section 1-109 of the Code of Civil Procedure [735 ILCS 5/1-
109].” 35 Ill. Adm. Code 101.504. Further, it is well-established that the Board looks to Illinois
Supreme Court Rule 191(a) with respect to filing affidavits in support of a motion for summary
judgment.
ADM-Demeter, PCB 98-31, slip op. at 2; D’Angelo Enterprise, Inc., PCB 97-66, slip
op. at 28. The rule clearly states that certified or sworn copies of all documents the affiant relies
on must be attached to an affidavit in support of (or in opposition to) a motion for summary
judgment. The rule provides no exceptions and the Board has adopted none to date.
Mr. Dorothy’s affidavits do not attach “thereto sworn or certified copies of all papers
upon which the affiant relies.” As the complainant in this proceeding, Mr. Dorothy has the
burden to provide facts in support of the arguments he presents against the respondent. Further,
despite the fact that Mr. Dorothy has twice requested leave to substitute affidavits submitted in
support of his responses to the pending motions for partial summary judgment, he has not
removed opinions from the affidavit such as: “By filing these hooligan motions, respondent is
seeking to delay this action, recklessly endangering lives for no economic purpose whatsoever.”
See
Dorothy Aff. 3.
The Board agrees with Flex-N-Gate that opinions and legal conclusions may not be
included in an affidavit submitted in support of a motion for summary judgment and must be
stricken.
Trepanier, PCB 97-50, slip op. at 16-17. Mr. Dorothy sets forth several legal
conclusions that are improper in an affidavit. For example, paragraph 3 of Mr. Dorothy’s
affidavit in support of his motion for summary judgment as to count I states: “[t]here is no
genuine issue of fact as to Count I.” Although a movant may
believe
that no genuine issue of
material fact exists and the issues are ripe for summary judgment, that conclusion is for the
Board to reach and cannot be made without supporting facts and evidence.
With respect to Mr. Dorothy’s claim that he does not have the resources to attach the
necessary copies, the Board notes that electronic filing is now available to the public through
internet access. The Board grants Flex-N-Gate’s motion to strike and admonish and strikes all
opinions and legal conclusions included in Mr. Dorothy’s affidavit. The Board notes that this
finding also applies to the second substituted affidavit filed by Mr. Dorothy and accepted by the
Board in support of his motion for partial summary judgment.
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MR. DOROTHY’S MOTION TO STRIKE AND FOR ADMONISHMENT
Mr. Dorothy’s Arguments
In his own July 22, 2005 motion to strike and for admonishment, Mr. Dorothy moves the
Board to strike as unsupported two statements made on page 12 of Flex-N-Gate’s response to
Mr. Dorothy’s motion for partial summary judgment as unsupported. The statements Mr.
Dorothy seeks to have stricken are the following:
Regarding the factual assertion that “respondent has not admitted, that respondent
is conducting hazardous waste treatment and storage operations without a RCRA
permit,” . . . the Board must strike this assertion because it is unsupported.
The same is true of Complainant’s statement in paragraph 21 of his Response to
Motion for Summary Judgment that “respondent has admitted that it is conducting
hazardous waste treatment and storage operations without a RCRA permit.”
Mr. Dorothy asserts he “is at a loss to understand how respondent is able to admit that it
is treating hazardous waste, storing hazardous waste and does not have a RCRA permit, and still
deny that it is ‘conducting hazardous waste treatment and storage operations without a RCRA
permit.’” Because he finds these positions incompatible, Mr. Dorothy moves the Board to strike
the above statements from Flex-N-Gate’s response to Mr. Dorothy’s motion for summary
judgment on count I of the complaint.
Flex-N-Gate’s Response
In response, Flex-N-Gate states Mr. Dorothy’s arguments are without merit because Mr.
Dorothy argues under the assumption that Flex-N-Gate operates a TSDF. Instead, Flex-N-Gate
states that it operates under Section 722 of the Board’s waste disposal rules as a generator that
accumulates hazardous waste prior to shipment off-site for treatment. Flex-N-Gate states that it
does not operate under Sections 724 and 725 as a TSDF. For these reasons, Flex-N-Gate argues,
Flex-N-Gate responded that it treats hazardous waste under the regulations applicable to
generators, and therefore, does not need a RCRA permit.
According to Flex-N-Gate, Mr. Dorothy misunderstood Flex-N-Gate’s response because
the parties had “different understandings of the meaning of certain terms under RCRA.” FNG
Resp. at 5. Thus, Flex-N-Gate contends its statements are not inconsistent and there is no reason
to strike any statements from Flex-N-Gate’s filings or to admonish Flex-N-Gate in any way.
Flex-N-Gate urges the Board to deny Mr. Dorothy’s motion to strike and for admonishment.
Board Analysis
The Board denies Mr. Dorothy’s motion to strike and admonish. The statements Mr.
Dorothy urges the Board to strike are arguments, not allegations. Even more troubling is that
those statements themselves are requests by Flex-N-Gate to strike allegations made by Mr.
Dorothy as unsupported (referencing Flex-N-Gate’s motion to strike). The Board above granted
11
Flex-N-Gate’s motion to strike all allegations in Mr. Dorothy’s affidavits that are unsupported
opinions, or are based on Mr. Dorothy’s legal conclusions. Further, the Board notes that while
Flex-N-Gate supported its request to strike by citing to legal precedent for the principle that
affidavits cannot contain legal conclusions, Mr. Dorothy simply states:
Complainant is at a loss to understand how respondent is able to admit that it is
treating hazardous waste, storing hazardous waste and does not have a RCRA
permit, and still deny that it is “conducting hazardous waste treatment and storage
operations without a RCRA permit.”
The Board finds Mr. Dorothy’s argument in support of his own motion to strike meritless.
Regarding Mr. Dorothy’s repeated failure to cite to sources for his allegations (for example, the
failure to cite on page two of his motion to strike), the Board will not consider further improper
pleadings. Mr. Dorothy’s motion to strike and admonish is denied.
MOTIONS FOR SUMMARY JUDGMENT
Flex-N-Gate moves the Board to grant summary judgment in its favor as to all counts of
the complaint. In the alternative, Flex-N-Gate moves the Board to grant partial summary
judgment as to counts II through VI of the complaint. Throughout both motions, Flex-N-Gate
asserts that the Board should grant judgment in its favor because Mr. Dorothy cannot prove all of
the elements of his claims. In particular, Flex-N-Gate asserts that the Guardian West facility
does not require a RCRA permit because it is a generator of hazardous waste, not a TSDF, as Mr.
Dorothy alleges.
Mr. Dorothy filed a motion for summary judgment on count I of the complaint. Mr.
Dorothy alleges generally that subsequent discovery conflicts with Flex-N-Gate’s answer in
which Flex-N-Gate denies that it operates its facility without a RCRA permit or interim status in
violation of Section 21(f) of the Act and Section 703.121(a) of the Board’s regulations. As
discussed further below, the Board grants summary judgment in favor of Flex-N-Gate on counts
II through VI, and denies both parties’ motions for summary judgment regarding count I.
Summary Judgment Standard
Summary judgment is appropriate when the pleadings, depositions, admissions on file,
and affidavits disclose that there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law.
Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483,
693 N.E.2d 358, 370 (1998). In ruling on a
motion for summary judgment, the Board “must
consider the pleadings, depositions, and affidavits strictly against the movant and in favor of the
opposing party.”
Id.
Summary judgment “is a drastic means of disposing of litigation,” and
therefore it should be granted only when the movant's right to the relief “is clear and free from
doubt.”
Id.
, citing
Purtill v. Hess, 111 Ill. 2d 299, 240, 489 N.E.2d 867, 871 (1986). “Even so,
while the nonmoving party in a summary judgment motion is not required to prove [its] case, [it]
must nonetheless present a factual basis which would arguably entitle [it] to a judgment.”
Sutter
Sanitation, Inc.
et al
. v. IEPA, PCB 04-187 slip op. at 9 (Sept. 16, 2004); citing Gauthier v.
Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2d Dist. 1994).
12
A review of the pleadings and the record in this matter, demonstrates there are no issues
of material fact and that it may grant summary judgment as a matter of law. In determining
whether to grant summary judgment, the Board must look to the burden of proof in an
enforcement action and the arguments presented by the parties.
Burden of Proof
Section 31(e) states the burden of proof applicable to enforcement proceedings before the
Board:
In hearings before the Board under this Title the burden shall be on the Agency or
other complainant to show either that the respondent has caused or threatened to
cause air or water pollution or that the respondent has violated or threatens to
violate any provision of this Act or rule or regulation of the Board or permit or
term or condition thereof. 415 ILCS 5/31(e) (2004).
The Board may only find in the complainant’s favor if he has proven each element of the
claim by a
preponderance of the evidence. People v. Chalmers, PCB 96-111, slip op. at 4 (Jan.
6, 2000).
Processing and Books, Inc. v. PCB, 64 Ill. 2d 68, 75-76, 351 N.E.2d 865 (1976);
Village of South Elgin v. Waste Management of Illinois, Inc., PCB 03-106 (Feb. 20, 2003);
citing
People v. Fosnock, PCB 41-1, slip op. at 19 (Sept. 15, 1994). A proposition is proved by a
preponderance of the evidence when it is probably more true than not. Village of South Elgin,
slip op. at 19; citing
Nelson v. Kane County Forest Preserve, PCB 94-244 (July 18, 1996).
CROSS MOTIONS FOR SUMMARY JUDGMENT AS TO COUNT I
The Board first discusses both parties’ arguments in support of summary judgment on
count I of the complaint. Then the Board will discuss Flex-N-Gate’s various arguments in
support of summary judgment concerning counts II through VI.
Flex-N-Gate moves the Board for summary judgment on count I because, it claims, Mr.
Dorothy has not met his burden of proof. Section 21(f) of the Act prohibits the operation of a
hazardous waste TSDF without an Agency-issued permit. Section 703.121(a) of the Board’s
hazardous waste regulations also prohibits the operation of a TSDF without a RCRA permit. 35
Ill. Adm. Code 703.121(a). Flex-N-Gate contends that to prove the alleged violations, Mr.
Dorothy had the burden to show that Flex-N-Gate was required to obtain a RCRA permit but did
not. According to Flex-N-Gate, Mr. Dorothy has failed to meet that burden.
For the reasons set forth below, the Board denies both parties’ motions for summary
judgment on count I of the complaint and sends the parties to hearing on the violations alleged in
that count. Before the Board discusses the parties’ arguments and reasons for today’s decision,
the Board provides a brief background of the applicable RCRA hazardous waste regulations.
Background of RCRA Hazardous Waste Regulations
13
Pursuant to Section 6922 of the Federal Resource Conservation and Recovery Act, the
United States Environmental Protection Agency (USEPA) requires hazardous waste generators
to comply with handling, recordkeeping, storage, and monitoring requirements. 42 USC §6922.
However, much more stringent regulations apply to treatment, storage, and disposal facilities,
including the RCRA permitting process (42 USC §6925; 40 C.F.R. 270) and the responsibility to
take corrective action for releases of hazardous substances and to ensure the safe closure of each
facility. 42 USC §6924; 40 C.F.R. 264. The State of Illinois implemented portions of the federal
RCRA. The Act was signed into law in 1976 and the regulations became effective in 1980.
Illinois received Phase I interim authorization from the USEPA on May 17, 1982.
Provided persons that generate hazardous waste in Illinois comply with conditions,
standards, and requirements established specifically for generators, they remain explicitly
excluded from RCRA permitting requirements for TSD facilities. Factors a hazardous waste
generator must consider in determining whether a RCRA permit is necessary include, among
other things, the amount of hazardous waste generated per month, the length of time the
hazardous waste is stored, and the specific type of hazardous waste produced. Under the
provisions of Section 722.134, generators are afforded specific periods of accumulation time for
the on-site storage or treatment of hazardous waste without being subject to RCRA permitting or
interim status. 35 Ill. Adm. Code 722.134. A preamble to federal amendments to hazardous
waste management standards discusses the relationship between treatment, storage, and disposal.
Standards Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and
Disposal Facilities; Consolidated Permit Regulations, 46 F.R. 2806-08 (Jan. 12, 1981). In the
preamble, the USEPA noted that treatment can occur at a permitted storage or disposal facility
without affecting the facility’s regulatory status.
Subsequently the USEPA has stated that it believes treatment activities also should not
change the regulatory status of generators.
Memorandum: Hazardous Waste Generated in
Laboratories, Elizabeth Cotsworth, Director Office of Solid Waste (Aug. 16, 2002) (a
memorandum directed to the RCRA senior policy advisors, USEPA regions I through X). The
USEPA reasoned that treatment often renders waste less hazardous and easier to ship off-site for
further treatment or disposal, and requiring generators to obtain a permit for any on-site
treatment would very likely discourage such practices.
Id
.
The Board adopted RCRA regulations identical in substance to the federal RCRA regulations,
making only those changes necessary to fit the Illinois regulatory scheme and in ways that did
not impact the regulations applicable to generators of hazardous waste.
Proposed Regulations
for RCRA, R81-22 (Feb. 4, 1982). Therefore, the Board adopts the USEPA interpretation of the
RCRA definitions of treatment and storage as applicable to generators in Illinois.
Depending on the quantity of hazardous waste generated, a generator may store
hazardous wastes for a limited amount of time and not become a RCRA TSDF so long as the
owner or operator meets certain conditions in handling the waste. 35 Ill. Adm. Code 722.134(a),
(d), 721.105(g).
For instance, the generator must place its wastes in containers or tanks and comply with
the related TSDF standards that apply to containers and/or tanks. The generator must clearly and
14
visibly mark each container for inspection with its respective date of accumulation, clearly mark
each container “hazardous waste,” and comply with certain limited TSDF standards. 35 Ill.
Adm. Code 722.134. If at any time, the generator violates any of these conditions, it loses the
exemption and becomes subject to regulation as a RCRA TSDF.
People v. S.C. Industries, Inc.,
PCB 83-93 slip op. at 40-41 (June 30, 1988).
A generator may also be regulated under different rules at different times. For example,
if a person generates less than 100 kilograms (kg) of hazardous waste during June, the waste
would be subject to requirements for conditionally exempt small quantity generators.
See
35 Ill.
Adm. Code 721.105. However, if the same person generates between 100 kg to 1,000 kg of
hazardous waste in July, the person is subject to the management requirements for small quantity
generators that month.
See
35 Ill. Adm. Code 722.134(d).
Therefore, under the Act and the Board’s RCRA regulations, the determination as to
whether a facility requires a RCRA permit depends on site-specific facts related to the facility’s
waste generation and handling. As discussed in more detail below, because the parties disagree
on whether Flex-N-Gate met all of the necessary requirements, the Board finds a genuine issue
of material fact exists.
Burden of Proof
Mr. Dorothy’s Arguments
Mr. Dorothy contends it is the respondent’s burden to show that the facility falls within
an exclusion. Resp. to Mot. for SJ at 7-8. Mr. Dorothy further maintains that a RCRA permit is
a “facility permit” and Flex-N-Gate has not shown that the entire facility is exempt from permit
requirements, but rather argued only that one unit is exempt. Resp. to Mot. for SJ at 9. Mr.
Dorothy asserts that if Section 21(f) of the Act contained an exemption within the RCRA permit
requirement, the burden would be on the complainant to plead and prove non-compliance with
the exemption. Resp. to Mot. for SJ at 5; citing 415 ILCS 5/21(f) (2004). Mr. Dorothy states the
exemptions to RCRA permitting requirements are not located in the Act, but rather in Board
regulations.
Flex-N-Gate’s Arguments
According to Flex-N-Gate, to prevail on his claims, Mr. Dorothy must demonstrate that
Flex-N-Gate: (1) does not fall into any of the exempt categories listed in Section 703.123; (2)
operated a hazardous waste treatment, storage, or disposal operation (TSDF); and (3) operated
that TSDF without an Agency-issued RCRA permit under Section 39(d) of the Act. Flex-N-Gate
contends Mr. Dorothy cannot establish even the first element of this test because Flex-N-Gate
manages its hazardous waste under exemptions set forth in Section 703.123. Mot. for SJ at 21;
citing 35 Ill. Adm. Code 703.123.
Flex-N-Gate asserts that no RCRA permit is necessary at the Guardian West facility
because it manages each of its hazardous wastestreams pursuant to one of the exemptions from
the RCRA permit requirement contained in 35 Ill. Adm. Code 703.123. Mot. for SJ at 23.
15
Board Analysis
The Board finds some of Flex-N-Gate’s argument persuasive. The Board agrees that the
complainant has the burden of proving all essential elements of the type of violation charged.
Incinerator, Inc. v. PCB, 59 Ill.2d 290, 319 N.E.2d 794 (1974). In this case, Mr. Dorothy must
prove by a preponderance of the evidence that Flex-N-Gate owned or operated a TSDF, and that
the facility required a RCRA permit, but did not have one. The complainant has this burden
because there would be no violation of 21(f) unless the facility was a TSDF and required a
permit, but did not have one. The same reasoning applies to an alleged violation of Section
703.121(a).
However, the Board does not find that stating a claim under Section 21(f) of the Act
would require the complainant to show that Flex-N-Gate does not fall into any of the
exemptions. The Board agrees with Mr. Dorothy that to state a claim, the complainant need not
prove a negative (
i.e
. that no exemption to RCRA permit requirements apply).
Whether Flex-N-Gate Operates a TSDF in Violation of Section 21(f) and Section 703.121(a)
Mr. Dorothy’s Arguments
In count I of the complaint, Mr. Dorothy asserts that Flex-N-Gate is conducting a
hazardous waste treatment, storage, or disposal operation without a RCRA permit and without
interim status in violation of the Act and Board regulations. Mr. Dorothy further states that
“[b]ecause of the age of the waste under the catwalk, chemical or biological reactions
may
have
converted part of the sulfate waste to the sulfide form, allowing the formation of hydrogen
sulfide gas on contact with acid.” Comp. at 4 (emphasis added).
In responding to Flex-N-Gate’s motion for summary judgment, Mr. Dorothy also states
that “sludge and contaminated debris,” which are hazardous wastes, accumulate under tanks at
the Guardian West facility and “this practice is itself storage of hazardous waste, and that
respondent is in violation of the accumulation time limitations of Section 722.134 for this reason
alone.” Resp. to Mot. for SJ at 3.
Flex-N-Gate’s Arguments
Flex-N-Gate agrees that Agency-issued RCRA permits are required, in certain situations,
by the Board’s RCRA regulations. Mot. for SJ at 20. For example, states Flex-N-Gate, Section
703.123 of the Board’s regulations “exempts specific categories of persons from the requirement
of obtaining a permit under the Resource Conservation and recovery Act.”
Id
.; citing
Standards
for Universal Waste Management (35 Ill. Adm. Code Parts 703, 720, 721, 725, 728 and 733),
R05-8 (Feb. 3, 2005). Included in the categories of exempted facilities are: (1) “[g]enerators
that accumulate hazardous waste on-site for less than the time periods provided in 35 Ill. Adm.
Code 722.134;” and (2) “[a]n owner or operator of an elementary neutralization unit or
wastewater treatment unit, as defined in 35 Ill. Adm. Code 720.110.” Mot. for SJ, at 20-21;
citing 35 Ill. Adm. Code 703.123.
16
Flex-N-Gate considers all of the hazardous wastestreams at the Guardian West facility to
be exempt under one of the two exemptions listed above, and therefore, does not require a RCRA
for the management of any of these wastestreams. Mot. for SJ, at 23. Flex-N-Gate considers
Guardian West a generator of hazardous waste, operating under Section 722 of the Board’s
hazardous waste rules, rather than a TSDF, that would instead operate under Sections 724 and
725 of the hazardous waste rules.
Id
. at 21; Resp. to MD Mot. to Strike at 3.
Wastewater Treatment Unit Exemption.
The first exemption Flex-N-Gate relies on is
the wastewater treatment unit (WWTU) exemption under Subsection (e) of Section 703.123.
Flex-N-Gate asserts that the treatment system at the Guardian West facility meets the definition
of a “wastewater treatment unit” as defined in Section 720.110 of the Board’s regulations. Mot.
for SJ at 11-13. The hazardous waste sludge, according to Flex-N-Gate, remains exempt as long
as it is contained in the WWTU. Mot. for SJ at 24.
According to Flex-N-Gate, the treatment system discharges wastewater into a publicly
owned treatment works (POTW) (Mot. for S.J. at 13). Flex-N-Gate has provided a copy of the
wastewater discharge permit that allows it to discharge into the Urbana & Champaign Sanitary
District. Mot. for SJ, Exh. I. Flex-N-Gate states the system also treats a hazardous waste
influent (Mot. for S.J. at 13-15), and that the coated floor and sump at the facility are included in
the definitions of “tank” or “tank system.” Mot. for S.J. at 16-18. Therefore, argues Flex-N-
Gate, the facility’s treatment system is a wastewater treatment unit exempt from RCRA
permitting requirements under section 703.123(e). Mot. for SJ at 20-21.
Generator Accumulation Exemption.
The second exemption on which Flex-N-Gate
relies is the generator accumulation exemption under subsection (a) of Section 703.123. Mot. for
SJ at 26. Flex-N-Gate states it handles the sludge, once it is removed from the WWTU, and
other hazardous wastestreams at the Guardian West facility though on-site accumulation in
containers prior to shipment off-site for treatment, storage, or disposal. Mot. for SJ at 26; citing
Dodson Aff. at 9, 12. Flex-N-Gate attached an example of the manifests for shipping the
hazardous wastewater treatment sludge off-site. Mot. for SJ, Exh. E. Flex-N-Gate states that
this is authorized by Section 722.134(a), (c) of the Board’s regulations applicable to generators
of hazardous waste, and Section 703.123 of the Board’s RCRA permit regulations. Mot. for SJ
at 27.
Board Analysis
As discussed above, the burden is not Mr. Dorothy’s to show that no exemptions apply to
Flex-N-Gate, rather it is Flex-N-Gate’s burden to show that it operations are exempt from RCRA
permitting. Flex-N-Gate admits that it generates hazardous waste through the electroplating
manufacturing process at its site, yet argues that because the facility is a generator, no RCRA
permit is necessary. The Board agrees with complainant Mr. Dorothy that Flex-N-Gate bears the
burden to prove it is exempt from the requirement to obtain a RCRA permit or interim status.
In seeking to meet that burden, Flex-N-Gate states that one of its hazardous wastestreams
is treated by equipment that meets the definition of a WWTU and that this wastestream is exempt
17
while it remains within the WWTU. Flex-N-Gate states the remaining hazardous wastestreams
are exempt under the accumulation exemption because the wastes are accumulated in containers
before being transported off-site for treatment, storage, or disposal.
Mr. Dorothy claims that Flex-N-Gate does not comply with the all of the regulations
applicable to generators. For example, Mr. Dorothy disputes that the equipment Flex-N-Gate
uses to treat one of its wastestreams meets the definition of a WWTU. Mr. Dorothy also alleges
that Flex-N-Gate accumulated hazardous waste for longer than the time limits allowed in Section
722.134.
The Board also disagrees with Mr. Dorothy’s contention that an exemption can only
apply on a facility-wide basis. Mr. Dorothy has provided no support for his interpretation of the
Board’s regulations. Section 703.123 regarding the Board’s specific exclusions from the RCRA
permit program explicitly provides that the exemptions apply to “persons” who generate in
accordance with the accumulation exemption, or operate, for example, a waste water treatment
unit. The only kind of facility that Section 703.123 explicitly exempts are TSDFs that handle
specifically exempt solid wastes, or that are conditionally exempt small generators of hazardous
waste (those facilities that generate no more than 100 kilograms of hazardous waste per month).
35 Ill. Adm. Code 703.123. The Board finds that exemptions can apply to individual waste
streams.
Mr. Dorothy has not demonstrated that the generation of hazardous waste at Guardian
West subjects the facility to RCRA permitting, falls outside of the exemptions provided by
Board rules, or otherwise violates Section 21(f) of the Act or Section 703.121(a) of the Board’s
rules.
Flex-N-Gate disputes some of the facts Mr. Dorothy alleges in the complaint. Because
the parties disagree on material facts, the Board finds summary judgment on count I is not
appropriate at this time. The Board directs the parties to hearing on the alleged violations
contained in count I.
Whether Flex-N-Gate Waived the Exemption Argument
Mr. Dorothy’s Arguments
In his response to Flex-N-Gate’s motion for summary judgment, Mr. Dorothy maintains
that Flex-N-Gate’s exemption argument is an affirmative defense. Because Flex-N-Gate did not
raise the exemption argument as an affirmative defense in its answer, Mr. Dorothy claims Flex-
N-Gate has waived that argument. Resp. to Mot. for SJ at 7-8.
In his own motion for summary judgment, Mr. Dorothy claims that a conflict exists
between Flex-N-Gate’s answer to the complaint and its responses to discovery requests. Mr.
Dorothy again argues that because Flex-N-Gate did not affirmatively allege any exemption to the
RCRA permit requirement in its answer to the complaint, Flex-N-Gate may not now introduce
evidence showing compliance with those provisions as a defense to count I. Mot. for PSJ at 2.
18
For these reasons, Mr. Dorothy urges the Board to grant summary judgment on count I in his
favor.
Flex-N-Gate’s Arguments
First Flex-N-Gate states that it need not provide reasons for denying allegations in the
answer. Rather, Flex-N-Gate argues, in a Board enforcement action, a respondent’s answer may
admit, deny or assert insufficient knowledge to form a belief of a material allegation in the
complaint. Resp. to Mot. for PSJ. at 7; citing
People v. Champion Env. Serv., Inc., PCB 05-199
(June 2, 2005); 735 Ill. Adm .Code 103.204(d). Further, Flex-N-Gate states that Section 2-610
of the Illinois Code of Civil Procedures provides that “denials must not be evasive, but must
fairly answer the substance of the allegation denied.” 735 ILCS 5/2-610. However, states Flex-
N-Gate, neither rule requires the respondent to provide reasons why it denies an allegation in a
complaint.
Flex-N-Gate also cites Supreme Court Rule 136 in support of its argument. Ill. SCt. Rule
136. According to Flex-N-Gate, the comments to Rule 136 regarding “denials” provide model
pleadings, and none of the models demonstrate that denials must include reasons for the denial.
Resp. to Mot. for PSJ at 8. Further, contends Flex-N-Gate, Mr. Dorothy cited no authority for
his conclusion that if a respondent fails to state the reason for its denial, it is prevented from
raising an argument later. Resp. to Mot. for PSJ at 9.
Flex-N-Gate disputes Mr. Dorothy’s contention that the applicability of exemptions to the
RCRA permitting requirement is an affirmative defense at all. Flex-N-Gate states it does not
have the burden to prove that it does not need to obtain a RCRA permit, rather the burden is Mr.
Dorothy’s to prove that Flex-N-Gate is required to obtain a RCRA permit. Resp. to Mot. for PSJ
at 9. Flex-N-Gate explains that the complaint states that Flex-N-Gate violated Section 21(f) of
the Act and Section 703.121(a) of the Board’s regulations and that Mr. Dorothy has the burden to
prove these violations. In light of the alleged violations, Flex-N-Gate contends Mr. Dorothy
must show that Flex-N-Gate was required to have a RCRA permit, but did not.
Further, Flex-N-Gate states that the Board’s test as to whether a response to a complaint
constitutes an affirmative defense is whether the response attacks the
legal
right to bring an
action as opposed to attacking the
truth
of a claim. Resp. to Mot. for PSJ at 11; citing
People v.
Skokie Valley Asphalt Co., Inc.,
et al
., PCB 96-98 slip op. at 8 (Sept. 2, 2004). Flex-N-Gate
asserts the exemptions to the RCRA permit requirement do not attack the legal right to bring an
action, but rather attack the truth of Mr. Dorothy’s claim that Flex-N-Gate is required to have a
RCRA permit.
Flex-N-Gate also disagrees that the exemption issue should be considered an affirmative
defense as a matter of efficiency and to save paper needed to brief the issues in this proceeding.
Flex-N-Gate contends that “efficiency” is the incorrect standard and, again, the correct standard
is whether or not an argument attacks the legal right to bring an action, as opposed to attacking
the truth of the claim. Resp. to Mot. for PSJ at 14; citing
Skokie Valley Asphalt, PCB 96-98, slip
op. at 8.
19
Next, Flex-N-Gate states its method of record-keeping does not impact whether Flex-N-
Gate’s answer constitutes an affirmative defense. Nor does the issue of whether a response
constitutes an affirmative defense hinge on how simple it would be for a complainant to draft his
complaint. Resp. to Mot. for PSJ at 14.
In summary, Flex-N-Gate states that it has provided Mr. Dorothy with information
identifying each hazardous wastestream the facility produces, the RCRA classification for each
wastestream, and the RCRA permit requirement exemption on which Flex-N-Gate relies for each
wastestream. Resp. to Mot. for PSJ at 18. Finally, Flex-N-Gate states Mr. Dorothy is advancing
an untenable legal position by demanding that Flex-N-Gate prove that the facility falls within an
exclusion. Flex-N-Gate argues that this would create absurd results because then complainants
would have a valid cause of action against every facility in the state of Illinois that generates
hazardous waste, with each of those facilities having to prove that the RCRA permit does not
apply. Rather, the burden, states Flex-N-Gate is on the complainant to establish that a RCRA
permit is required. Resp. to Mot. for PSJ at 19.
Flex-N-Gate argues that in the event the Board determines that the exemptions Flex-N-
Gate argues apply are, in fact, affirmative defenses, then the Board’s decision would be
precedential. Flex-N-Gate states that never before has the Board granted summary judgment
because affirmative defenses were mispled. According to Flex-N-Gate, the proper course would
not be to find that Flex-N-Gate waived its right to assert affirmative defenses, but to grant Flex-
N-Gate leave to amend its answer. Resp. to Mot. for PSJ at 20; citing
People v. Petco Petroleum
Corp., PCB 05-66, slip op. at 7-9 (May 19, 2005).
Board Analysis
The Board finds that a respondent need not provide reasons for denying an allegation in
its answer. Mr. Dorothy contends, in his unsuccessful motion for sanctions, that Flex-N-Gate’s
answer was evasive because it did not provide the reasons for denying certain allegations.
Accordingly, claims Mr. Dorothy, because Flex-N-Gate failed to state the reason for its denial, it
is prevented from doing so later.
The Board’s procedural rules regarding denials state: “A denial must fairly address the
substance of the requested admission.” 35 Ill. Adm. Code 101.618(f). The Board finds nothing
evasive about Flex-N-Gate’s answer. Flex-N-Gate clearly denied the truth of Mr. Dorothy’s
allegation that Flex-N-Gate operated a TSDF without a RCRA permit or interim status. Further
Mr. Dorothy has provided no support for his argument regarding what constitutes an evasive
answer. The Board finds Flex-N-Gate’s answer properly pled and that it has not waived the
argument claiming exemption from RCRA permitting.
The Board agrees that Flex-N-Gate’s exemption argument is an affirmative defense to
Mr. Dorothy’s alleged violation of Section 21(f) of the Act and Section 703.121 of the Board’s
regulations. In its answer, Flex-N-Gate states that even if all of the allegations in Mr. Dorothy’s
complaint are true, the Guardian West facility is exempt under the Board’s regulations applicable
to generators. Further, the Board has found in the past that a claimed exemption under Board
regulations to a statutory requirement is a valid affirmative defense.
See eg
.
People v. QC
20
Finishers, Inc., PCB 01-07 (June 19, 2003). Consequently, the Board agrees with Mr. Dorothy
that Flex-N-Gate’s claim of being exempt from RCRA permitting is an affirmative defense.
However, the Board does not find that Flex-N-Gate waived its right to assert an
affirmative defense because it failed to so plead in its answer. The Board has discretion to grant
a respondent leave to amend pleadings.
See
Zenith Radio Corp. v. Hazeltine Research, Inc., 401
U.S. 321, 329, 91 S.Ct. 795, 802 (1971); citing
Foman v. Davis, 371 U.E. 178, 182 (1962). In
this case, there is no Board or other Illinois precedent discussing whether a generator’s claim of
exemption is an affirmative defense to a cause of action under Section 21(f) of the Act and
Section 703.121 of the Board’s regulations. Accordingly, the Board allows Flex-N-Gate to
amend its answer.
Failure to Properly Plead
In response to Mr. Dorothy’s motion for partial summary judgment, Flex-N-Gate
contends Mr. Dorothy’s argument must fail because he has not cited any rule or caselaw in
support of his argument or even alleged what legal principle would support his position. Resp. to
Mot. for PSJ at 6.
Flex-N-Gate also states that as discussed in its motion to strike and admonish, Mr.
Dorothy’s “affidavits” are deficient and must be stricken. As a result, Flex-N-Gate argues that
without an affidavit, Mr. Dorothy has provided no other factual support, and for this reason, the
Board must deny his motion for partial summary judgment. Resp. to Mot. for PSJ at 20.
Mr. Dorothy moved to reply in support of his motion for summary judgment on July 20,
2005. However, Mr. Dorothy has not subsequently filed a reply. In his motion for leave, Mr.
Dorothy states that “complainant does not feel that it is necessary to attach copies of documents
that are already on file in this case.”
As discussed above, the Board granted Flex-N-Gate’s motion to strike and admonish. As
a result, Mr. Dorothy’s affidavits no longer include his opinions or legal conclusions. While
making no finding on this issue, the Board notes that Mr. Dorothy’s failure to properly plead
impacts heavily on the Board’s decision regarding burden of proof.
Conclusion on Count I of the Complaint
Because genuine issues of material fact remain, the Board denies both parties’ requests
for summary judgment on count I. The Board finds that Flex-N-Gate bears the burden to prove it
falls within one or more exemptions from RCRA permitting requirements. The Board further
finds that Flex-N-Gate did not waive the exemption argument and may amend its answer to
count I to reflect this affirmative defense. Finally, the Board finds that Mr. Dorothy sufficiently
stated a claim under Section 21(f) of the Act and Section 703.121 of the Board’s regulations.
MOTION FOR SUMMARY JUDGMENT ON COUNTS II THROUGH VI
21
As discussed in further detail below, the Board disagrees with Flex-N-Gate’s first
argument set forth in its motion for summary judgment on all counts that Mr. Dorothy must
prove that the alleged incident did not involve a WWTU. Rather, the Board finds that Mr.
Dorothy has not demonstrated that the uncontained hydrogen sulfide gas constitutes a “hazardous
waste” or “hazardous waste constituent.”
The Board explicitly sets forth the regulations applicable to hazardous waste generators,
including those that require a contingency plan for the facility:
The Board’s RCRA regulations require that all generators which store hazardous
wastes comply with certain of the interim T/S/D facility standards. This is true of
all generators, whether they merely store the wastes one day past the date of
generation, or they store the wastes for extended periods and thereby become a
T/S/D facility for the purposes of regulation.
People v. S.C. Industries, Inc., PCB
83-93, slip op. at 26-27 (Jun. 30, 1988); citing 35 Ill. Adm. Code 722.134,
725.101(c)(7) (1984).
The relevant, applicable portions of the interim T/S/D facility standards of Part
725 of the Board rules include . . . the contingency plan . . . requirements of
Subpart D, Sections 725.150 through 725.156. These are very explicit and
somewhat detailed requirements.
S.C. Industries, Inc., PCB 83-93, slip op. at 27.
The current Section 722.134 also requires generators to comply with Subparts I, AA, BB,
and CC (35 Ill. Adm. Code 722.134(a)(1)(A)) as well as Subparts C and D (35 Ill. Adm. Code
722.134(a)(4)) of Part 725. Mr. Dorothy alleges violations of Sections 725.151(b), 725.156(j),
and 725.154(b) and (c), all under Subpart D of Part 725.
Mr. Dorothy Failed to Present Facts that Would Arguably Entitle Him to Judgment
Flex-N-Gate’s Arguments
In moving for summary judgment on counts II through VI, Flex-N-Gate again contends
that Mr. Dorothy has not proved the essential elements of the alleged violations.
Flex-N-Gate contends that the facility has a contingency plan, and that it is part of the
facility’s “Emergency Response and Contingency Plan.” Mot. for SJ at 36. Flex-N-Gate states it
prepared the plan because it manages some of the hazardous waste it generates pursuant to the
accumulation provision of Section 722.134(a), which requires Guardian West to have this plan.
Id
.; citing 35 Ill. Adm. Code 722.134(a)(4).
Flex-N-Gate states, however, that Section 725.101(c) exempts the owner or operator of a
WWTU from the requirements of Part 725. Mot. for SJ at 36; citing 35 Ill. Adm. Code
725.101(c). It follows then, argues Flex-N-Gate, that to prove a violation of any of the
contingency plan regulations that complainant alleges in counts II though VI, Mr. Dorothy must
first prove that the incident does not involve a WWTU. Mot. for SJ at 37.
22
According to Flex-N-Gate, Mr. Dorothy alleges that the release occurred from the floor
of the plating room, which Flex-N-Gate states is part of the facility’s WWTU. Flex-N-Gate
contends, therefore, that because none of Part 725 applies to the facility’s WWTU, Flex-N-Gate
is entitled to summary judgment on counts II through VI of the complaint. Mot. for SJ at 38.
Flex-N-Gate disputes that the release of sulfuric acid could have or did, in fact, create
hydrogen sulfide. Mot. for SJ at 8. Despite this factual dispute, however, Flex-N-Gate states the
Board can still grant summary judgment in its favor. This is because, Flex-N-Gate argues,
whether the release occurred is not a material fact necessary for the Board to consider in granting
summary judgment on counts II through VI.
Flex-N-Gate states that RCRA does not regulate uncontained gases. Therefore, contends
Flex-N-Gate, although the parties dispute whether the alleged August 5, 2004 release of sulfuric
acid even created hydrogen sulfide gas, that issue is not material to the essential elements of the
cause of action. Mot. for SJ at 45. Thus, states Flex-N-Gate, the Board can grant summary
judgment even if the parties disagree on this issue.
Id
.
Flex-N-Gate states that excluding WWTUs from RCRA contingency plan requirements
does not leave them unregulated. According to Flex-N-Gate, the USEPA has found that the
“protection of human health and the environment is ensured by regulation under the CWA rather
than RCRA.” Mot. for SJ at 43. Flex-N-Gate concludes that because the incident involved a
WWTU and Mr. Dorothy did not prove otherwise, the Board should grant summary judgment on
counts II through VI in its favor.
Mr. Dorothy’s Arguments
In response, Mr. Dorothy states that Flex-N-Gate’s motions for summary judgment are
not based on any facts, but rather a repetition of legal arguments presented in its motion to
dismiss. Mr. Dorothy again contends that Flex-N-Gate’s exemption argument is an affirmative
defense and, therefore, not properly pled.
Mr. Dorothy continues that generator accumulator exemption of Section 722.134(a)(4)
requires a contingency plan for the
facility
. Mr. Dorothy interprets the term “facility” to include
units that may be exempt under other provisions. Mr. Dorothy notes that the WWTU exemption
does not mention any contingency plan because the “obvious interpretation is that the operator of
a Section 722.134 facility has to prepare a contingency plan for the entire facility.” Resp. to
Mot. for SJ at 9.
Board Analysis
The Board disagrees with Flex-N-Gate’s interpretation that the WWTU at the Guardian
West facility is exempt from Part 725 contingency plan requirements. Flex-N-Gate relies on the
exemption in Section 725.101(c)(10) for owners or operators of WWTUs. The Board notes that
that exemption is found in Subpart A of Part 725. Flex-N-Gate claims it operates under Section
722.134 as a generator of hazardous waste. That section sets forth specific parts of Part 725 with
which generators must comply to qualify for the exemption, including the contingency plan
23
requirements of Subpart D. The exemption does not mention either Section 725.101 specifically,
or Subpart A of Part 725, generally.
The Board also notes that in the letter Flex-N-Gate attaches as Exhibit O to its motion for
summary judgment, the Agency is interpreting the WWTU exemption
from RCRA permitting
requirements
, rather than the requirements applicable to hazardous waste
generators
, as that
exemption relates to a facility NPDES permit. Large quantity generators do not need a RCRA
permit if they meet very specific requirements. Those requirements include having a
contingency plan for the facility. This interpretation makes sense in light of the Agency’s stated
goal to avoid overregulation of such units be requiring both a NPDES permit and a RCRA permit
for the same unit. Applying the contingency plan requirements as required by the generator
accumulation exemption would not subject Flex-N-Gate’s WWTU to overregulation because it is
still be covered by only the NPDES permit.
The Board disagrees with Flex-N-Gate with its interpretation of the Board’s Part 725
regulations, but ultimately finds that Mr. Dorothy has not demonstrated that the alleged August
5, 2004 release of sulfuric acid triggered any contingency plan at the Guardian West Facility.
MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNTS II THROUGH VI
In his response, Mr. Dorothy states that after reviewing Flex-N-Gate’s arguments,
“complainant is forced to agree that the release of hydrogen sulfide, or hydrogen cyanide, does
not amount to the release of a ‘hazardous waste constituent’ as that term is used in the
regulations.” Resp. to Mot. for SJ II-VI, par. 28. Therefore, the Board discusses only the
parties’ arguments regarding whether uncontained hydrogen sulfide constitutes a hazardous
waste.
Whether Uncontained Hydrogen Sulfide Gas is a Hazardous Waste
Flex-N-Gate’s Arguments
The Board’s rules define a hazardous waste as a solid waste, as defined in Section
721.102, if certain things are true. 35 Ill. Adm. Code 721.103(a). First, a solid waste is defined
as “any discarded material that is not excluded by Section 721.104(a) or that is not excluded
pursuant to 35 Ill. Adm. Code 720.130 and 720.131.” 35 Ill. Adm. Code 721.102(a)(1). Flex-N-
Gate states that the United States District court for the Southern District of Ohio held in an
unpublished opinion that the term solid waste under federal RCRA regulations does not include
uncontained gases.
Helter v. AK Steel Corp., 1997 U.S. Dist. LEXIS 9852 (S.D. Oh. 1997).
Flex-N-Gate quotes the court’s holding:
in order to be considered a solid waste for RCRA purposes, the gaseous material
must be both discarded and contained, [and therefore,] the plain language of 42
U.S.C. §9603(27) excludes the leaked COG, in its gaseous form, from the
definition of “solid waste” and, thus, from RCRA’s coverage. Mot. for SJ II-VI at
6; citing
Helter, 1997 U.S. Dist. LEXIS 9852 slip op. at 30.
24
Flex-N-Gate states that the federal regulations themselves dictate that uncontained gases
are not “solid wastes” under RCRA:
All materials are either: (1) Garbage[,] refuse, or sludge; (2) solid, liquid, semi-
solid or contained gaseous material; or (3) something else. No materials in the
third category are solid waste. Mot. for SJ II-VI at 7; citing 40 C.F.R. 260, App.
I.
Flex-N-Gate concludes that under existing caselaw and the federal RCRA standards,
uncontained gas “must fall into the category of ‘something else’ and the regulations clearly state
that ‘no materials in the [something else] category are solid waste.’” Mot. for SJ II-VI at 7;
citing
Gallagher v. T.V. Spano Bldg. Corp., 805 F. Supp. 1120, 1129 n.7 (D.Del. 1992). Flex-N-
Gate notes that the Appendix I to the federal RCRA regulations has been adopted into the
Board’s RCRA regulations at Appendix A to Part 720. 35 Ill. Adm. Code 720.App. A.
Flex-N-Gate continues that the USEPA has interpreted RCRA regulations as limited to
contained or condensed gases.
Hazardous Waste Management System: Identification and Listing
of Hazardous Waste CERCLA Hazardous Substance Designation; Reportable Quantity
Adjustment, 54 FR 50968, at 50973 (Dec. 11, 1989). Flex-N-Gate states that in interpreting
RCRA process vent regulations, the USEPA clarified that “noncontainerized gases emitted from
hazardous wastes are not themselves hazardous wastes because the RCRA statute implicitly
excludes them.” Mot. for SJ II-VI at 14; citing
Hazardous Waste TSDF – Technical Guidance
Document for RCRA Air Emission Standards for Process Vents and Equipment Leaks, EPA-
450/3-89-021, at p.2-3 (July 1990) (attached as Exhibit C).
Further proof that uncontained gases are not regulated as a “solid waste,” asserts Flex-N-
Gate, is the Act’s definition of “waste” as:
Any garbage, sludge from a waste treatment plant, water supply treatment plant,
or air pollution control facility or other discarded material, including solid, liquid,
semi-solid, or contained gaseous material . . .. Mot. for SJ II-VI at 8; citing 415
ILCS 5/3.535.
Flex-N-Gate concludes that because uncontained gases are not “solid wastes,” they
cannot be “hazardous wastes” under Section 721.133(f) or otherwise. Mot. for SJ II-VI at 11. If
uncontained gases are not hazardous wastes then the alleged release of hydrogen sulfide,
assuming it did occur, did not trigger the applicability of the facility’s contingency plan under
Part 725. Accordingly, Flex-N-Gate moves the Board to grant summary judgment regarding
counts II though VI in its favor.
Mr. Dorothy’s Arguments
In his response to Flex-N-Gate’s motion for partial summary judgment and in his second
substituted affidavit, Mr. Dorothy makes many references to statements made in the course of
discovery. However, much of the discovery Mr. Dorothy references has not been filed with the
Board. Since it is not part of the Board’s record, the Board cannot consider it in this analysis.
25
Mr. Dorothy states he is not trying to impose RCRA regulations on the escaping gas.
Rather, Mr. Dorothy argues that the accidental release of the gas, from a material that was
already a hazardous waste, was a proper trigger for implementation of the contingency plan.
Resp. to Mot for SJ II-VI, at par. 30.
Mr. Dorothy states he “was present during the incident and directly observed the
production of hydrogen sulfide gas.” In his second substituted affidavit, Mr. Dorothy states
“Complainant concluded that a large quantity of concentrated sulfuric acid had spilled to the
floor, where it was reacting with water and other material on the floor, bringing the material on
the floor to its boiling point.” Dorothy Aff. 3, at 6. According to Mr. Dorothy, he observed this
“by advancing toward the area while holding his breath, and sticking his hands into the plume to
estimate its temperature, and speed of upward drift.”
Id
. Mr. Dorothy states he has a B.S. in
chemistry and “is well acquainted with the high school level chemistry involved in the above
statements.”
Id
. at 15.
Mr. Dorothy argues that because
Helter is a federal district court case, the Board is not
bound by the precedent it sets. Resp. to Mot for SJ II-VI, at par. 30(b). Mr. Dorothy again
contends that Flex-N-Gate’s exemption argument is an affirmative defense and, therefore, not
properly pled. Resp. to Mot. for SJ II-VI at par. 9, 10.
Board Analysis of Counts II Through VI
The Board finds that uncontained gases are not solid wastes, and therefore, do not fit the
definition of “hazardous waste” as that term is defined by the Act and Board regulations.
The Board finds that Mr. Dorothy has not pled with certainty that hydrogen sulfide gas
was in fact created at the Guardian West facility on August 5, 2004. For example, Mr. Dorothy
supports his motions with his own affidavits, and in his second amended affidavit, Mr. Dorothy
states that “the sulfide that was the source of the release
may
have been produced by chemical or
biological reactions in the sludge and debris,” and “[b]ecause the sulfide did not come from the
sulfuric acid, it
must have come
from sulfide on the floor.” Dorothy Aff. 3, at par. 8. Although it
is apparent to the Board that Mr. Dorothy’s allegations are not well-pled, the Board will consider
this motion as if they were.
Even assuming the release of sulfuric acid on August 5, 2004, created hydrogen sulfide
gas, Mr. Dorothy’s allegations in support of counts II through VI do not set forth the essential
elements of his claims. As noted above, the Board disagrees that Mr. Dorothy had the burden to
prove that the alleged release “did not involve a WWTU” at the Guardian West facility.
Nonetheless, to have a cause of action under the alleged violations of Part 725, Subpart D of the
Board’s rules, Mr. Dorothy had to present a factual basis for the essential elements of his claims.
One of the essential elements is that there was a release of a hazardous waste or hazardous waste
constituent. Section 725.151(b) provides:
26
The provisions of the plan must be carried out immediately whenever there is a
fire, explosion, or release of hazardous waste or hazardous waste constituents that
could threaten human health or the environment. 35 Ill. Adm. Code 725.151(b).
The Board has never before addressed the issue of whether an uncontained gas could fall
under the definition of a hazardous waste. As discussed above, the Board adopts the federal
interpretation of RCRA regulations that were adopted as “identical in substance” by the Board.
The Board finds Flex-N-Gate’s argument that uncontained gases are not included within the
Board’s definition of hazardous waste persuasive.
The Board finds support for this conclusion explicitly set forth in 40 C.F.R. 260.App. I,
adopted by the Board at Section 720. App. A. Appendix I, entitled “Overview of Subtitle C
Regulations,” explains that the appendix is to help people to determine what regulations, if any,
apply. In defining “solid waste,” Appendix I states:
All materials are either: (1) Garbage refuse, or sludge; (2) solid, liquid, semi-
solid or contained gaseous material; or (3) something else. No materials in the
third category are solid waste. 40 C.F.R. 260, App. I.
Mr. Dorothy asserts that the triggering event was the release of hydrogen sulfide gas.
The Board finds that clearly, uncontained gas does not fit into either of the first two categories of
materials. The Board notes that while not binding, other court decisions support today’s
findings.
See e.g.
Helter, 1997 U.S. Dist. LEXIS 9852; Gallagher, 805 F. Supp. 1120.
For these reasons, the Board finds Mr. Dorothy has not demonstrated there was any
release of hazardous waste or hazardous waste constituents that would have triggered
implementation of the Part 725, Subpart D requirements, and that Mr. Dorothy has no cause of
action under the alleged violations of Part 725, Subpart D regulations. The Board’s finding on
this issue makes discussion of the parties’ remaining arguments unnecessary. Accordingly, the
Board grants summary judgment in favor of Flex-N-Gate on counts II through VI.
CONCLUSION
The Board grants summary judgment in favor of Flex-N-Gate on counts II through VI of
the complaint. The Board denies both parties’ motions for summary judgment on count I of the
complaint. The Board also grants Flex-N-Gate’s motion to strike and admonish, and denies Mr.
Dorothy’s motion to strike and admonish. The Board directs the hearing officer to resolve the
remaining outstanding motions relating to discovery and to proceed expeditiously to hearing on
count I of the complaint.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2004);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
27
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on October 20, 2005, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
