THIS FILING SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB No. 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Carol Webb, Esq.
Clerk of the Board
Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
100 West Randolph Street
1021 North Grand Avenue East
Suite 11-500
Post Office Box 19274
Chicago, Illinois 60601
Springfield, Illinois 62794-9274
(VIA ELECTRONIC MAIL)
(VIA ELECTRONIC MAIL)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
the Illinois Pollution Control Board Flex-N-Gate Corporation’s
MOTION TO
COMPEL,
a copy of which is herewith served upon you.
Respectfully submitted,
FLEX-N-GATE CORPORATION,
Respondent,
By:/s/ Thomas G. Safley
One of Its Attorneys
Dated: April 13, 2006
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
MOTION TO COMPEL upon:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, Illinois 62794-9274
via electronic mail on April 13, 2006; and upon:
Mr. Morton F. Dorothy
104 West University, SW Suite
Urbana, Illinois 61801
by depositing said documents in the United States Mail in Springfield, Illinois, postage
prepaid, on April 13, 2006.
/s/ Thomas G. Safley
Thomas G. Safley
GWST:003/Fil/NOF and COS – Motion to Compel
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
MOTION TO COMPEL
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, pursuant to 35 Ill. Admin.
Code § 101.616, and for its Motion to Compel, states as follows:
1.
On December 9, 2005, Flex-N-Gate filed its proposed discovery schedule
with the Illinois Pollution Control Board (“Board”), requesting 60 days for written
discovery in this matter.
2.
The Hearing Officer entered an Order granting Flex-N-Gate’s proposed
discovery schedule on December 13, 2005. Pursuant to this Order, written discovery was
due in this matter by February 14, 2006.
3.
On January 18, 2006, Flex-N-Gate mailed its Interrogatories and Requests
for Production to Complainant. See
Flex-N-Gate Corporation’s Interrogatories to
Complainant, a copy of which has been attached hereto as Exhibit A
; Flex-N-Gate
Corporation’s Requests for Production to Complainant, a copy of which has been
attached hereto as Exhibit B.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
2
4.
On February 14, 2006, Complainant provided his responses to Flex-N-
Gate’s Interrogatories. See
Response to Interrogatories, a copy of which has been
attached hereto as Exhibit C
. However, Complainant failed to certify his responses to
Flex-N-Gate’s Interrogatories, as required by 35 Ill. Admin. Code § 101.620(b). See
id.
Furthermore, Complainant failed to respond to Flex-N-Gate’s Requests for Production.
5.
On February 17, 2006, the undersigned sent the letter attached hereto as
Exhibit D
to Complainant asking Complainant to complete his responses to Flex-N-
Gate’s discovery requests. Complainant did not respond to that letter.
6.
On February 27, 2006, the undersigned left a voicemail message for
Complainant inquiring as to the status of Complainant’s verification of his Answers to
Interrogatories and as to the status of Complainant’s Responses to Requests for
Production.
7.
Complainant contacted the undersigned via electronic mail on
February 27, 2006, and stated that the Requests for Production had been “overlooked”
and would be addressed in the near future. See
E-mail from Morton Dorothy to Thomas
G. Safley styled “Production,” a copy of which has been attached hereto as Exhibit E
.
This message did not address Complainant’s verification of his Answers to
Interrogatories.
8.
Upon review of Complainant’s responses to its Interrogatories, Flex-N-
Gate identified numerous concerns therewith.
9.
Accordingly, on March 8, 2006, Flex-N-Gate sent correspondence to
Complainant outlining these concerns and asking Complainant to amend his responses to
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
3
the Interrogatories. See Correspondence from Thomas G. Safley to Morton F. Dorothy, a
copy of which has been attached hereto as Exhibit F
.
10.
On March 20, 2006, Complainant informed the Hearing Officer that he
intended to amend his Complaint. See
Hearing Officer Order dated March 20, 2006.
11.
On March 28, 2006, however, Complainant informed the undersigned that
he intends to move forward with Count I of his Complaint. Therefore, Flex-N-Gate’s
discovery requests, as served, remain valid.
12.
As of the date of this Motion, Complainant has failed to respond to Flex-
N-Gate’s Requests for Production; Complainant has failed to certify his original
responses to Flex-N-Gate’s Interrogatories; and Complainant has failed to respond to
Flex-N-Gate’s request for amended responses to its Interrogatories.
13.
Pursuant to Supreme Court Rule 201(k), counsel for Flex-N-Gate certifies
that good faith efforts have been made to confer with Complainant and resolve the issues
surrounding his responses to Respondent’s Interrogatories and Requests for Production,
as set forth above.
14.
Pursuant to 35 Ill. Admin. Code § 101.616, the Board has granted the
Hearing Officer the authority to resolve “all discovery disputes.”
WHEREFORE, Respondent FLEX-N-GATE CORPORATION respectfully
moves the Hearing Officer (a) to grant this Motion; (b) to compel Complainant to
respond to Respondent’s Requests for Production; (c) to compel Complainant to amend
his responses to Respondent’s Interrogatories as requested; (d) to order Complainant to
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
4
provide written certification for all responses, as required; and (e) to grant FLEX-N-
GATE CORPORATION such other relief as the Hearing Officer deems just.
Respectfully submitted,
FLEX-N-GATE CORPORATION
Respondent,
By:/s/ Thomas G. Safley
One of Its Attorneys
Dated: April 13, 2006
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:003/Fil/Motion to Compel
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
EXHIBIT A
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB No. 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
FLEX-N-GATE CORPORATION’S
INTERROGATORIES TO COMPLAINANT
NOW COMES Respondent FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by its attorneys, HODGE DWYER ZEMAN, and pursuant to 35 Ill. Admin. Code §
101.620, propounds the following Interrogatories on Complainant, MORTON F.
DOROTHY (hereinafter “Complainant”), to be answered in accordance with the Illinois
Pollution Control Board’s procedural rules within twenty-eight (28) days of the date of
service hereof.
INSTRUCTIONS
(a)
The Board’s procedural rules require you to serve your “answers and
objections, if any” to the following Interrogatories on the undersigned “[w]ithin 28 days
after” these Interrogatories are served on you. See
35 Ill. Admin. Code § 101.620(b).
(b)
The Board’s procedural rules also require that you answer each of the
following Interrogatories “separately and fully in writing under oath, unless it is objected
to.” See 35 Ill. Admin. Code § 101.620(b).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
2
A verification statement (see
735 ILCS 5/1-109), signature line, and space for
notarizing are provided for your use in meeting the requirement of Section 101.620(b)
that Interrogatories be answered “under oath.”
(c)
The Board’s procedural rules also require that you sign your answers to
these Interrogatories and sign any objections you make to these Interrogatories. See
35
Ill. Admin. Code § 101.620(b).
(d)
With respect to each Interrogatory, in addition to supplying the
information asked for and identifying the specific documents referred to, please identify
all documents to which you referred in preparing your answer thereto.
(e)
If any document identified in an answer to an Interrogatory was, but is no
longer, in your possession or subject to your custody or control, or was known to you, but
is no longer in existence, please state what disposition was made of it or what became of
it.
(f)
If any document or statement is withheld from production hereunder on
the basis of a claim of privilege or otherwise, please identify each such document or
statement and the grounds upon which its production is being withheld.
(g)
If you are unable or refuse to answer any Interrogatory completely for any
reason, including, but not limited to, because of a claim of privilege, please so state,
answer the Interrogatory to the extent possible, stating whatever knowledge or
information you have concerning the portion of the Interrogatory which you do answer,
and set forth the reason for your inability or refusal to answer more fully.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
3
DEFINITIONS
As used in these Interrogatories, the terms listed below are defined as follows:
(a)
“Act” means the Illinois Environmental Protection Act, 415 ILCS 5/1
et
seq
.
(b)
“Board Regulations” means 35 Illinois Administrative Code §§101
et seq.
(c)
“Document” or “documents” means any of the following of which you
have knowledge or which are now or were formerly in your actual or constructive
possession, custody or control: any writing of any kind, including originals and all non-
identical copies (whether different from the originals by reason of any notation made on
such copies or otherwise), including without limitation correspondence, memoranda,
notes, desk calendars, diaries, statistics, checks, invoices, statements, receipts, returns,
warranties, guarantees, summaries, pamphlets, books, prospectuses, inter-office and intra-
office communications, offers, notations of any sort of conversations, telephone calls,
meetings or other communications, bulletins, magazines, publications, printed matter,
photographs, computer printouts, teletypes, telefax, invoices, worksheets and all drafts,
alterations, modifications, changes and amendments to any of the foregoing; any
correspondence, databases, spreadsheets, electronic mail or “e-mail” messages, or other
information of any kind contained in any computer or other such storage system; and any
audiotapes, videotapes, tape recordings, transcripts, or graphic or oral records or
representations of any kind.
(d)
“Hazardous Waste” means hazardous waste as defined by Part 721 of the
Board Regulations.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
4
(e)
“Identify,” “identity” and “identification,” when used to refer to any entity
other than a natural person, mean to state its full name, the present or last known address
of its principal office or place of doing business, and the type of entity (e.g., corporation,
partnership, unincorporated association).
(f)
“Identify,” “identity” and “identification,” when used to refer to a natural
person, mean to state the following:
1.
The person’s full name and present or last known home address,
home telephone number, business address and business telephone number;
2.
The person’s present title and employer or other business
affirmation; and
3.
The person’s title and employer at the time of the actions at which
each Interrogatory is directed.
(g)
“Identify,” “identity” and “identification,” when used to refer to a
document, mean to state the following:
1.
The subject of the document;
2.
The title of the document;
3.
The type of document (e.g., letter, memorandum, telegram, chart);
4.
The date of the document, or if the specific date thereof is
unknown, the month and year or other best approximation of such date;
5.
The identity of the person or persons who wrote, contributed to,
prepared or originated such document; and
6.
The present or last known location and custodian of the document.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
5
(h)
“Person” means any natural person, firm, corporation, partnership,
proprietorship, joint venture, organization, group of natural persons, or other association
separately identifiable whether or not such association has a separate juristic existence in
its own right.
(i)
“Possession, custody or control” includes the joint or several possession,
custody or control not only by the person to whom these Interrogatories are addressed,
but also the joint or several possession, custody or control by each or any other person
acting or purporting to act on behalf of the person, whether as employee, attorney,
accountant, agent, sponsor, spokesman, or otherwise.
(j)
“Relates to” means supports, evidences, describes, mentions, refers to,
contradicts or comprises.
(k)
“You” means Complainant Morton F. Dorothy.
(l)
“Flex-N-Gate’s Facility” means the property operated by Flex-N-Gate at
601 Guardian Drive in Urbana, Illinois, as alleged in paragraph three of your Complaint.
(m)
“Wastewater Treatment Equipment” means the following equipment
located at the Facility that is used to treat wastewater: equalization tanks, reduction and
adjustment tanks, flocculation tank, lamella, sand filters, sludge holding tanks, and filter
presses.
(n)
“Wastewater Treatment Unit” means waste water treatment unit as defined
in the Board Regulations at 35 Ill. Admin. Code § 720.110.
INTERROGATORIES
INTERROGATORY NO. 1
: In your Complaint you allege that “Respondent is
operating a hazardous waste treatment and storage facility….” (Complaint Pg. 4 ¶ 1.)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
6
Please identify what material you are referring to in this statement that you allege
constitutes “hazardous waste” as to which Flex-N-Gate is “operating a hazardous waste
treatment and storage facility,” and further state:
(a)
the nature of the material;
(b)
the approximate quantity of the material;
(c)
the manner or method by which you allege Flex-N-Gate is storing,
treating, and/or disposing of the material; and
(d)
the approximate location of the material at Flex-N-Gate’s Facility.
ANSWER:
INTERROGATORY NO. 2
: In your Complaint you refer to “…the waste under
the catwalk….” (Complaint Pg. 4 ¶ 2.) Please clarify what status you allege this material
holds (i.e. do you allege that this material is hazardous waste?) and whether this is the
material upon which you base your allegations in Count I of your Complaint that Flex-N-
Gate has violated Section 21(f) of the Act and 35 ll. Admin. Code § 703.12(a).
ANSWER:
INTERROGATORY NO. 3
: Count I of your Complaint alleges that Flex-N-
Gate’s Facility is operating “…without a RCRA permit or interim status, in violation of
Section 21(f) of the Act and 35 Ill. Adm. Code § 703.121(a).” (Complaint Pg. 4 ¶ 1.) On
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
7
what basis do you allege that Flex-N-Gate’s facility is required to operate either with a
permit or under interim status?
ANSWER:
INTERROGATORY NO. 4
: In your Complaint you state, “35 Ill. Adm. Code
103.400 et seq. Include [sic] procedures under which the Board would supervise the
issuance of a RCRA permit.” (Complaint Pg. 4 ¶ 4.) Please state how this allegation
relates, if at all, to the violation you are alleging under Section 21(f) of the Act and under
35 Ill. Admin. Code § 703.121(a) in Count I of your Complaint.
ANSWER:
INTERROGATORY NO. 5
: Flex-N-Gate contends that its Wastewater
Treatment Equipment (as defined above) generates and accumulates a sludge that
satisfies the definition of “wastewater treatment sludge” as that term is used in the
definition of “wastewater treatment unit” contained in 35 Ill. Admin Code § 720.110. Do
you disagree with this contention, and, if so, please state the basis upon which you
disagree including the specific portions of the definition of “sludge” at 35 Ill. Admin.
Code § 720.110, and/or the definition of “hazardous waste” at 35 Ill. Admin. Code §
721.103, which you believe have not been satisfied.
ANSWER:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
8
INTERROGATORY NO. 6
: Flex-N-Gate contends that the Wastewater
Treatment Equipment at its Facility meets the definition of “tank” or “tank system” as
defined at 35 Ill. Admin. Code § 720.110. Do you disagree with this contention, and, if
so, please state the basis upon which you disagree including the specific portion of the
definition of “tank or tank system” contained at 35 Ill. Admin. Code § 720.110 which you
believe has not been satisfied.
ANSWER:
INTERROGATORY NO. 7: Flex-N-Gate contends that the floor of the room in
which the “chrome plating line” is located at the Facility, as alleged in paragraphs four
through six of your Complaint (hereinafter “Plating Room Floor”), is sloped towards the
center of the room, where two concrete “pits” are located in the floor. Do you disagree
with this contention, and, if so, please state the basis upon which you disagree.
ANSWER:
INTERROGATORY NO. 8: Flex-N-Gate contends that the purpose of the slope
of the Plating Room Floor is to direct any solution which falls from the bumpers
proceeding through the “chrome plating line,” or otherwise falls from the “chrome
plating line,” into the “pits” in the Plating Room Floor. Do you disagree with this
contention, and, if so, please state the basis upon which you disagree.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
9
ANSWER:
INTERROGATORY NO. 9
: Flex-N-Gate contends that the Plating Room Floor
meets the definition of “ancillary equipment” as defined at 35 Ill. Admin. Code §
720.110. Do you disagree with this contention, and, if so, please state the basis upon
which you disagree including the specific portion of the definition of “ancillary
equipment” contained at 35 Ill. Admin. Code § 720.110 which you believe has not been
satisfied.
ANSWER:
INTERROGATORY 10
: Flex-N-Gate contends that the “pits” located in the
Plating Room Floor hold solution which falls from the “chrome plating line” until the
solution can be transferred to the Wastewater Treatment Equipment, via direct
connection. Do you disagree with this contention, and, if so, please state the basis upon
which you disagree.
ANSWER:
INTERROGATORY NO. 11
: Flex-N-Gate contends that the “pits” located in the
Plating Room Floor meet the definition of “ancillary equipment” as defined in 35 Ill.
Admin. Code § 720.110. Do you disagree with this contention, and, if so, please state the
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
10
basis upon which you disagree including the specific portion of the definition of
“ancillary equipment” contained at 35 Ill. Admin. Code § 720.110 which you believe has
not been satisfied.
ANSWER:
INTERROGATORY NO. 12
: Flex-N-Gate contends that a pump is located at
each “pit” in the Plating Room Floor, which pumps are used to transfer solution that falls
onto the floor and is subsequently captured in each pit, via hard-piping, to the Wastewater
Treatment Equipment. Do you disagree with this contention, and, if so, please state the
basis upon which you disagree.
ANSWER:
INTERROGATORY NO. 13: Flex-N-Gate contends that the pump located at
each “pit” in the Plating Room Floor meets the definition of “ancillary equipment” as
defined at 35 Ill. Admin. Code § 720.110. Do you disagree with this contention, and, if
so, please state the basis upon which you disagree, including the specific portion of the
definition at “ancillary equipment” contained at 35 Ill. Admin. Code § 720.110 which
you believe has not been satisfied.
ANSWER:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
11
INTERROGATORY NO. 14
: Flex-N-Gate contends that piping leads from the
“pits” located in the Plating Room Floor to the “Wastewater Treatment Equipment.” Do
you disagree with this contention, and, if so, please state the basis upon which you
disagree.
ANSWER:
INTERROGATORY NO. 15
: Flex-N-Gate contends that the pipes that lead from
the pits in the Plating Room Floor to the Wastewater Treatment Equipment meet the
definition of “ancillary equipment” as defined at 35 Ill. Admin. Code § 720.110. Do you
disagree with this contention, and, if so, please state the basis upon which you disagree
including the specific portion of the definition of “ancillary equipment” contained at 35
Ill. Admin. Code § 720.110 which you believe has not been satisfied.
ANSWER:
INTERROGATORY NO. 16
: Flex-N-Gate contends that wastewater at the
Facility is transferred through piping between the various pieces of equipment included in
the definition of “Wastewater Treatment Equipment” set forth above. Do you disagree
with this contention, and, if so, please state the basis upon which you disagree.
ANSWER:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
12
INTERROGATORY NO. 17
: Flex-N-Gate contends that all piping through
which wastewater at the Facility is transferred between the various pieces of equipment
included in the definition of “Wastewater Treatment Equipment” set forth above meets
the definition of “ancillary equipment” as defined at 35 Ill. Admin. Code § 720.110. Do
you disagree with this contention, and, if so, please state the basis upon which you
disagree including the specific portion of the definition of “ancillary equipment”
contained at 35 Ill. Admin. Code § 720.110 which you believe has not been satisfied.
ANSWER:
INTERROGATORY NO. 18
: Flex-N-Gate contends that piping is used to
discharge treated wastewater from the Wastewater Treatment Equipment to the Urbana
Champaign Sanitary District. Do you disagree with this contention, and, if so, please
state the basis upon which you disagree.
ANSWER
INTERROGATORY NO. 19
: Flex-N-Gate contends that the piping from the
Wastewater Treatment Equipment to the Facility’s connection with the Urbana-
Champaign Sanitary District meets the definition of “ancillary equipment” as defined at
35 Ill. Admin. Code § 720.110. Do you disagree with this contention, and, if so, please
state the basis upon which you disagree including the specific portion of the definition
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
13
“ancillary equipment” contained at 35 Ill. Admin. Code § 720.110 which you believe has
not been satisfied.
ANSWER:
INTERROGATORY NO. 20
: Please provide the name and address of each
witness who will testify at any hearing in this matter and state the subject of each
witness’s testimony.
ANSWER:
INTERROGATORY NO. 21
: Please provide the name and address of each
opinion witness who will offer any testimony or opinion on behalf of Complainant, and
state:
(a)
The subject matter on which the opinion witness is expected to
testify;
(b)
The conclusions and/or opinions of the opinion witness and the
basis therefore, including reports of the witness, if any;
(c)
The qualifications of each opinion witness, including a curriculum
vitae and/or résumé, if any; and
(d)
The identity of any written reports of the opinion witness regarding
this occurrence.
ANSWER:
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14
INTERROGATORY NO. 22
: Please list the names and addresses of all other
persons (other than yourself and persons heretofore listed) who purport to have
knowledge, or with whom you have communicated, in writing or otherwise – including,
but not limited to, representatives of the United States Environmental Protection Agency,
the Illinois Environmental Protection Agency, and/or any other governmental body or
agency other than the Illinois Pollution Control Board – relating to your contention in
Count I of your Complaint that Flex-N-Gate has violated Section 21(f) of the
Environmental Protection Act and/or 35 Ill. Admin. Code § 703.121(a).
ANSWER:
INTERROGATORY NO. 23:
Please identify all persons who assisted with the
preparation of your responses to these Interrogatories, whom you or your agents
consulted in the preparation of your responses to these Interrogatories, and/or who
otherwise provided any information used in the preparation of your responses to these
Interrogatories, and indicate the Interrogatories with which each such person assisted or
was consulted or provided information.
ANSWER:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
INTERROGATORY NO. 24: Please identify any statements, information and/or
documents or other evidence known to you and requested by any of the
foregoing
Interrogatories or by any Request for Production propounded on you by Respondent
which you claim to be work product or subject to any common
law
or statutory
privilege,
and with respect to each Interrogatory or Request for Production, specify the legal basis
for the claim.
ANSWER:
Respectfully submitted,
FLEX-N-GATE CORPORATION
Dated:
January
18, 2006
By:.-
One of Its
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland
Post
Office
Box 5776
Springfield, Illi
(217) 523-4900
705-5776
GWST:003/Fil/Interrogatories
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
EXHIBIT B
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB No. 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
FLEX-N-GATE CORPORATION’S
REQUESTS FOR PRODUCTION TO COMPLAINANT
NOW COMES Respondent FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by its attorneys, HODGE DWYER ZEMAN, and pursuant to Section 101.616 of the
Illinois Pollution Control Board’s (“Board”) procedural rules, 35 Ill. Admin. Code §
101.616, propounds the following Requests for Production on Complainant Morton F.
Dorothy, to be answered within 28 days after these Requests for Production are served on
Complainant.
INSTRUCTIONS
(a)
Please produce all documents requested herein for copying at the
offices of HODGE DWYER ZEMAN, 3150 Roland Avenue, Springfield, Illinois,
within twenty-eight (28) days of the date of service of these Requests for
Production, or provide copies of the documents requested herein to counsel for
Flex-N-Gate by that date.
(b)
If any document was previously in your possession or subject to your
custody or control that these Requests for Production would require you to produce, but
is no longer in your possession or subject to your custody or control, or was known to
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
2
you, but is no longer in existence, please state what disposition was made of it or what
became of it.
(c)
If any document is withheld from production hereunder on the basis of a
claim of privilege or otherwise, please identify each such document and the grounds upon
which its production is being withheld.
(d)
If you are unable or refuse to respond to any Request for Production
completely for any reason, including, but not limited to, because of a claim of privilege,
so state, answer the Request for Production to the extent possible, stating whatever
knowledge or information you have concerning the portion of the Request for Production
which you do answer, and set forth the reason for your inability or refusal to answer more
fully.
DEFINITIONS
As used in these Requests for Production, the terms listed below are defined as
follows:
(a)
“Document” or “documents” means any of the following of which you
have knowledge or which are now or were formerly in your actual or constructive
possession, custody or control: any writing of any kind, including originals and all
nonidentical copies (whether different from the originals by reason of any notation made
on such copies or otherwise), including without limitation correspondence, memoranda,
notes, desk calendars, diaries, statistics, checks, invoices, statements, receipts, returns,
warranties, guarantees, summaries, pamphlets, books, prospectuses, interoffice and
intraoffice communications, offers, notations of any sort of conversations, telephone
calls, meetings or other communications, bulletins, magazines, publications, printed
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
3
matter, photographs, computer printouts, teletypes, telefax, invoices, worksheets and all
drafts, alterations, modifications, changes and amendments to any of the foregoing; any
spreadsheets, databases, electronic mail messages, or other information of any kind
contained in any computer or other such storage system; and any audiotapes, videotapes,
tape recordings, transcripts, or graphic or oral records or representations of any kind.
(b)
“Possession, custody or control” includes the joint or several possession,
custody or control not only by the person to whom these Requests are addressed, but also
the joint or several possession, custody or control by each or any other person acting or
purporting to act on behalf of the person, whether as employee, attorney, accountant,
agent, sponsor, spokesman, or otherwise.
(c)
“Relates to” means supports, evidences, describes, mentions, refers to,
contradicts or comprises.
(d)
“You” means Complainant Morton F. Dorothy.
(e)
“Flex-N-Gate’s Facility” means the property operated by Flex-N-Gate at
601 Guardian Drive in Urbana, Illinois, as alleged in paragraph three of your Complaint.
REQUESTS FOR PRODUCTION
1.
Please produce all correspondence or other documents of any kind relating
to this matter exchanged between you and any lay witness whom you intend to, or may
call to, testify at any hearing in this matter.
2.
Please produce all correspondence or other documents of any kind relating
to this matter exchanged between you and any independent expert witness whom you
intend to call to testify at any hearing in this matter.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
4
3.
Please produce all correspondence or other documents of any kind relating
to this matter exchanged between you and any controlled expert witness whom you
intend to call to testify at any hearing in this matter.
4.
Please produce any and all reports or other documents relating to this
matter generated by any independent or controlled expert whom you intend to call to
testify at any hearing in this matter.
5.
Please produce a current résumé and curriculum vitae for each
independent or controlled expert whom you intend to call to testify at any hearing in this
matter.
6.
Please produce copies of all correspondence, email messages, or other
documents of any kind exchanged between you and the United States Environmental
Protection Agency relating to this matter.
7.
Please produce copies of all correspondence, e-mail messages, or other
documents of any kind exchanged between you and the Illinois Environmental Protection
Agency relating to this matter.
8.
Please produce copies of all correspondence, e-mail messages, or other
documents of any kind exchanged between you and any other governmental body or
agency, other than the Illinois Pollution Control Board, relating to this matter.
9.
Please produce any and all other documents of any kind which relate in
any way to your allegation that Flex-N-Gate has violated Section 21(f) of the Act and/or
35 Ill. Admin. Code § 703.121(a), as alleged in Count I of your Complaint.
10.
Please produce all exhibits which you intend to, or may seek to, enter into
evidence or use as a demonstrative exhibit at any hearing in this matter.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
11. Please produce any photographs, motion pictures, videotapes, maps,
lgs, or other visual or pictorial representations of any kind of the Flex-N-Gate
Facility at issue in this matter or otherwise relating in any way to the allegations
contained in your
Complaint.
12. Please produce all documents, other than those produced in response to the
Requests for Production
set
forth
above,
which you identified in response
to
Flex-N-
Gate's Interrogatories.
13. Please produce all documents or other items of any
other than those
produced in response to the Requests for Production set forth above, which you consulted
or to which you referred in preparing your responses to Flex-N-Gate's Interrogatories to
you or your responses to these Requests for Production.
Respectfully submitted,
Respondent,
Dated:
January
18, 2006
By:-__.
One
of Its Attornevs
Thomas
G.
Safley
HODGE DWYER Z
3150 Roland Avenue
Post Office Box 5776
gfield, Illinois
62705-5776
(217) 523-4900
GWST:003/Fil/R.equests for Production
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN
COUNTY,
ILLINOIS
MORTON F. DOROTHY,
Co
vs.
plainant,
FLEX-N-GATE
CORPORATION,
an Illinois Corporation,
Respondent.
}
}
}
CERTIFICATE OF SERVICE
No. PCB 05-049
1, the undersigned, certify that, on the ?
ý
day
of
February,
2006,
1 served
the
listed documents, by first class mail, upon
the listed persons:
RESPONSE TO
INTERROGATORIES
THIRD INTERROGATORIES
Thomas G. Safley
Carol Webb
Hodge Dwyer Zeman
Hearing Officer, IPCB
3150
Roland
Avenue
1021 North Grand Avenue East
Post Office Box 5776
Post
Office
Box 19274
Springfield, IL 62705-5776
Springfield, IL 62794-9274
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph
Suite 11-500
Chicago, Illinois 60601
Morton F. Dorothy
104 W. University
Southwest Suite
Urbana IL 81801
217/384-1010
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
CHAMPAIGN COUNTY, ILLINOIS
MORTON F. DOROTHY,
)
Complainant,
)
VS.
)
No. PCB 05-049
FLEX-N-GATE CORPORATION,
an Illinois Corporation,
)
Respondent.
)
RESPONSE TO INTERROGATORIES
Complainant Morton F. Dorothy makes the following response to Interrogatories
propounded by Respondent on January 18, 2006.
1.
Complainant
does not have detailed information to respond to this question,
apart from the documents produced by Respondent in discovery, which are in
Respondent's possession, and which are too voluminous to fully summarize.
Evidence that Respondent is treating and
storing
hazardous
waste
includes the
following:
Respondent has produced a "Contingency Plan" which represents that it
was prepared to meet the Board's regulations governing hazardous waste
management facilities in
35
Ill. Adm.
Code
725.
(Response
to
Request
for
Production
No. 1, p. 6-12)
On January 19, 2001, The Illinois Environmental Protection Agency
conducted a RCRA inspection which found
numerous violations of the
Board's rules governing
hazardous waste management, including rules
governing
the
storage of hazardous waste, and violations of the
contingency planning requirements.
The Agency contended that, because
of the violations, the facility
failed
to
qualify for exemption from the RCRA
it requirement.
On May 3, 2001, Respondent answered the
Agency
with a detailed letter
promi
regulations,
without rais
come into compliance
with the
arguments to the
effect that the facility
was not conducting haza
t
to Request for Production
No. 13)
(Response
Respondent has produced manifests
showing large quantities of
hazardous waste shipped out
of the facility. (Response to Request for
Production
No. 9)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
d.
In the course of job training, Complainant was told by Respondent's
agent's, in the course of business, that the facility was treating and storing
hazardous waste.
Ken Keigley and Holly Hirchert of
the Illinois
Environmental
Protection
Agency have told the Complainant that the facility
was
conducting
hazardous waste treatment and storage operations pursuant to a claim of
exemption
as a
large quantity generator of hazardous waste. Prior to
taking
her position with the Agency, Holly Hirchert
was the environmental
engineer for the Guardian West facility, with responsibility over many
of
these hazardous waste management operations.
f.
Complainant
was required to
segregate
certain wastes for separate
disposal
as hazardous waste,
including
chromic
acid contaminated
wastes from the area under the catwalk, and from the chromic acid
recovery operation, which wastes were placed in containers labeled
"hazardous waste",
with
storage
times
noted,
by the Environmental
Manager at Guardian West.
The Complaint speaks for itself as to the allegation. The question calls for a legal
conclusion,
and/or requests
Complainant's work product. Compla
that the
material
under
the catwalk, including liquids, debris
and sludge,
hazardous waste. At a minimum, this is chromic acid contaminated waste.
Pursuant to a Freedom of Information
Act
request, Illinois Environmental
Protection Agency has told the Complainant that
the
facility does
not
have a
RCRA permit or
interim
status. Ken Keigley and Holly Hirchert of the Illinois
Environmental
Protection Agency have told the Complainant the same thing.
Respondent has failed to produce a RCRA
permit or
interim
status
notification
in
response to discovery requests.
See also the Response to Question 1. The
remainder
of
the
question calls for a legal conclusion, and/or requests
k product.
Objection. The question calls for
a
legal
conclusion, and/or requests
Complainant's work product.
Objection.
The question calls for a legal
conclusion, and/or requests
Complainant's work product. Moreover,
this is irrelevant because neither the
Complaint nor Answer has
alleged that any portion of the facility is a "wastewater
treatment unit".
Objection.
The question calls for a legal
conclusion, and/or requests
Complainant's work product.
Moreover, this is irrelevant because neither
the
Complaint nor Answer has alleged
that any portion
of
the facility
is a "tank" or
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
"tank system" (other than the tanks involved in the production process).
Complainant generally agrees with this statement. However, Complainant does
not know exactly where the pits are located with respect to the center of the
room. Moreover, the pits are actually located to the east and west of the
approximate center
of
the room, and the
floor
under the tanks appears to be
sloped
toward the line
between
the
pits, rather
than
the apparent
central point.
8.
Complainant agrees that this is a part of the purpose of the slope of the floor.
Objection. The
question calls
for
a
legal
conclusion,
and/or requests
Complainant's work product. Moreover, this is irrelevant because neither the
Complaint nor Answer has alleged that any portion of the facility is "ancillary
equipment'".
10.
Complainant generally agrees with this statement. However, the pits were not
designed to "hold" the liquid for a significant period of time, but rather to pump
the liquid immediately as it accumulated. By agreeing as to details concerning
the physical appearance
and design of
the
equipment, Complainant
is
not
agreeing as
to
any regulatory interpretation hidden in Respondent's question.
11. Objection. The question calls for
a
legal
conclusion,
and/or requests
Complainant's work product.
Moreover, this is
irrelevant
because
neither
the
Complaint nor Answer
has alleged
that
any portion of the facility is "ancillary
equipment".
12. Complainant agrees with this statement. By
agreeing as to details concerning the
physical
appearance and design of the equipment, Complainant is not agreeing
as
to
any regulatory interpretation hidden in Respondent's question
13. Objection. The question calls for
a
legal
conclusion, and/or requests
Complainant's work product.
Moreover, this is irrelevant because neither the
Complaint
nor Answer has alleged that any portion of the facility is "ancillary
equipment".
14. Complainant
agrees with this statement. By agreeing as to
details concerning the
physical appearance
and design of the equipment,
Complainant is not agreeing
as
to
any regulatory interpretation hidden
in Respondent's question
15.
Objection. The question
calls
for
a legal conclusion, and/or requests
is is irrelevant
because nei
Complaint nor Answer has alleged that
any portion of the facility is "ancillary
pment".
16. Objection. The
question calls for a legal conclusion, and/or
requests
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
omplainant's
work
product,
17. Objection. The question calls for a legal conclusion, and/or requests
Complainant's
work
product. Moreover, this is irrelevant because
neither the
Complaint
nor
Answer
has
alleged
that
any portion
of the facility is "ancillary
equipment".
18. Complainant agrees with this statement. By agreeing as to details concerning the
physical
appearance
and design of the equipment, Complainant is not agreeing
as to
any
regulatory
interpretation
hidden in Respondent's question
19. Objection. The question calls for a legal conclusion, and/or requests
Complainant's
work product. Moreover, this is irrelevant because neither the
Complaint nor Answer has alleged that any portion of the facility is "ancillary
equipment".
20. As it now stands, the Complaint appears to be restricted to the issue of whether
Respondent has violated the storage time requirements for hazardous waste
under the catwalk. Under these circumstances, the Complainant will testify as to
the properties of the material under the catwalk, and as to the length of storage.
In the event Respondent intends
to offer testimony
to the
effect
that the
area
is
periodically cleaned, or that the material is not hazardous waste, Complainant
will request subpoenas to obtain testimony of employees and former employees,
including Larry Kelly, Afiba Martin and Holly Hirchert.
21.
Complainant has no funds with which to employ outside expert witnesses.
Complainant sees no need at this time for expert testimony. Complainant is,
however, an expert on much of the factual
material
at issue, and will, if
necessary,
testify
as an expert witness. In a citizen enforcement action, the
Complainant has a right to testify about relevant matters at a public hearing
regardless of qualification as an expert Any objections would go to the weight of
evidence.
Complainant's
relevant qualifications
include:
Bachelor of Science in Chemistry, with high honors and distinction in the
curriculum, University of Illinois, Urbana, Illinois, 1970.
Juris
doctor, 1976.
Between
1980 and
1993,
Complainant drafted the Illinois versions of most
of the regulations involved in this
case.
Between 1980 and 1993,
Complainant handled public questions
concerning these
regulations for the State of Illin
Complainant attended numerous conferences and hearings
concerning
the subject of hazardous waste management, both
as an attendee and
speaker.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
e. Complainant drafted numerous documents and reports concerning
hazardous waste, including theAnnual Reports to the Governor of the
Illinois Hazardous Waste Advisory Council.
9.
C omplainant is a certified "HAZWOPER" first responder for hazardous
waste emergencies.
C omplainant did process and quality control chemistry for the subject
plating line for nearly two years, during which time he was regularly
consulted by management concerning
the operation and
control
of
the
plating process.
22. Other persons:
vir Ali, Plant Manager, Guardian West, 601 Guardian Drive, Urbana IL
6 1802
b . Ken Keigley, Illinois Environmental
Protection
Agency, 2125 South First
Champaign IL
Holly Hirchert,
Illinois Environmental Protection Agency, 2125 South First
Champaign IL
Bill
Keller, Champaign County Emergency Services and Disaster
Agency, 1905 East Main Urbana IL 61802
U nknown person, Urbana Fire Department, 400 S. Vine, Urbana, IL 61801
Peggy A. Zweber,
Area Director, U.S. Dept. of Labor, Occupational Safety
and Health Administration, 2918 Willows Knolls Rd, Peoria IL 61614.
Brian Bothast, Acting
Area
Director,
U.S. Dept. of Labor, Occupational
Safety
and
Health
Administration, 2918 Willows Knolls Rd, Peoria IL
61614.
Sue
Ellen DeManche, U.S. Dept. of Labor, Occupational Safety
and
Health Administration,
2918
Willows
Knolls Rd, Peoria IL 61614.
Mr. Thomas V. Skinner,
Regional Administrator, US EPA Region
5,77 W.
Jackson
Blvd., Chicago, IL 60604
Gary Westefer, US EPA Region 5,
77 W. Jackson Blvd., Chicago, IL
60604
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
23. No persons have
assisted Complainant.
24. Complainant has claimed privilege in response to several of the above
questions.
p r2-y-n ,
i
0t;Zý
Ma ýý
Morton F. Dorothy, Complainant
Morton
F.
Dorothy
104 W. University
Southwest Suite
Urbana IL
61801
217/384-1010
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
E
j
WDUýDWYERýiEMGN
THOMAS G. SAFLEY*
*Licensed in Illinois and Indiana
E-mail: tsafley@hdzlaw.com
February 17, 2006
M r. Morton F. Dorothy
1 04 West University, SW Suite
Urbana, Illinois 61801
RE: Morton F. Dorothy v. Flex-N-Gate Corporation
PCB No. 05-49
O ur File No. - GWST:003
Dear Mr. Dorothy:
We
have received
your
responses to Interrogatories in the above-referenced matter.
Thank you. We have not received your verification to those responses, however, as required
by
the Illinois Pollution Control Board's rules. See 35 Ill. Admin. Code § 101.620(b); 735 ILCS
5/1-109. Also, we have not yet received your responses to Requests
for Production of
Documents. Please forward the above to us at your earliest convenience.
Please feel free to contact me if you have any questions regarding this correspondence..
S
incerely,
TGS:plt
GWST:003/Corr/Dorothy ItO -discovery
3 150 ROLAND AVENUE I POST OFFICE
BOX 5776
.
SPRINGFIELD, ILLINOIS 62705-5776
TELEPHONE 217-523-4900 1
. FACSIMILE 217-523-4948
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
Thomas
Safley
F rom:
MDor4248@aol.com
Sent:
Monday,
February 27, 2006 9:31 AM
To:
tsafley@hdzlaw.com
Subject:
Production
I seem to have overlooked
the Request for Production.
I will get this together
for you in the near future,
although
I don't really have
much to produce.
Morton Dorothy
2/27/2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
i-tib-ý
flODGI DWAR
ZRAN
T HOMAS G. SAFLEY*
*Licensed in Illinois
and
Indiana
E -mail: esafley @hdzlaw.conl
M arch
8,
2006
V IA
ELECTRONIC MAIL
(Original via U.S. Mail)
Mr. Morton F. Dorothy
104
W. University
Southwest Suite
Urbana, Illino
01
Dorothy v.
Flex-N-Gate Corporation
P
C13 No.
05-49
Our File No. - GWST:003
Dear Mr. Dorothy:
Flex-N-Crate Corporation ("Flex-N-Gate") would like to thank you for providing your
Answers to
our
Interrogatories
in a timely malmer. Upon reviewing your responses, however,
we have some concerns. The
purpose of this letter is to identify those concerns and to ask you to
amend your answers to Interrogatories in light
of them.
several of our Interrogatories focus
on
Flex-N-Gate's
contention that certain
equipment, etc., at the facility at issue falls within the
definition of "Wastewater Treatment Unit"
("WWTU") under RCRA. See Interrogatory Nos. 5, 6, 9, 11, 13, 15, 17,
19. In response to
these Interrogatories,
you in part state: "this is irrelevant because neither the Complaint nor
that any portion of the facility is a `wastewater treatment unit' . . . [or] `a
' . . . [or] `ancillary
equipment."' See your responses to Interrogatory Nos.
5,6,9,11,13,15,17,19.
We
must
respectfully disagree with this assertion. First, Flex-N-Gate's original Answer
specifically asserted in several
cases that "portion[s] of the facility [were] a `wastewater
treatment unit."' For example, in response to paragraph
6 of
your
Complaint, Flex-N-Gate's
original Answer stated in part:
3 150 ROLAND AVENUE
POST OFFICE
Box
5776
SPRINGFIELD, ILLINOIS 62705.5776
TELEPHONE 217-523-4900
FACSIMILE 217-523-4948
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
Mr. Morton F. Dorothy
March 8, 2006
Page
2
Rather,
Flex-N-Gate affirmatively states that the
chrome plating line is engineered
so that substances
will fall from the bumpers at issue
during the process of
cleaning, plating, and rinsing,
and land on the floor of the room in which
that line
is located, which floor constitutes
part of a Wastewater Treatment Unit as defined
in 35 111.
Admin. Code § 703.110, not a "hazardous
waste treatment unit." This
process is intentional,
and thus does not constitute "spillage.
Answer, 1[6. (Emphasis added.)
Flex-N-Gate's
original Answer also stated in response
to paragraph 26 of your
Flex-N-Gate denies that the water "washed"
any material "to the hazardous waste
treatment unit"; as noted above, the floor
of the room constitutes part of a
Wastewater Treatment
Unit as defined in 35 111. Admin.
Code 703.110. Flex-N-
Gate does admit
that the water would have washed any material
on the floor
further into pipes and tanks that
also make up the Wastewater Treatment
Unit."
Answer at 9. (Emphasis
added.) See also Answer, T10.
A copy of the relevant portions
of Flex-N-Gate
your review.
riginal Answer is enclosed for
Second, it also appears that
you have not considered our Amended Answer
and the
Affirmative
Defense set forth therein. As you know, it
was our position in this matter that the
application of the WWTU
exemption was not an affirmative defense.
You, and the Illinois
Pollution Control Board ("Board"),
disagreed, and by its Order last October,
the Board ordered
us to file an Amended Answer.
We did so, and in that Amended Answer, we set forth the
"affirmative defense." Amended
Answer at 10-14. In that Affirmative
state in relevant
part
as follows:
Flex-N-Gate's
Guardian West facility relies in part on this
Wastewater
Treatment
Unit
("WWTU")
exemption to the RCRA permit requirement.
11. Flex-N-Gate's
Guardian West facility contains tanks anal
other ass
hick
wastewater is treated (the "facility WWTU").
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
Mr. Morton
F. Dorothy
March
8, 2006
Page 3
20. The Plating Room floor
and associated ping and other ancillary
equipment from the pits to the wastewater treatment
tanks between the
_wastewater
treatment tanks and between the wastewater
treatment tanks
and the connection with the Urbana Champaign
Sanitary District meet the
definitions of tank system
and ancillary equipment set forth in 35 Ill.
Admin. Code §720.110.
21.
Pursuant to the WWTU exemption set forth in 35 Ill. Admin.
Code
703.123(e),
the
facility
is exempt from the RCRA permit requirement
with
respect to any hazardous waste
that might be present on the Plating Room
floor.
22. Pursuant
to the WWTU exemption set forth in 35 111.
Admin. Code
703.123(e), the facility
is exempt from the RCRA permit requirement
with
respect to any hazardous waste that might
be present in the pits located in
that floor.
23. Pursuant to the
WWTU exemption set forth in 35 111. Admin. Code
703.123(e), the facility is exempt from
the RCRA permit requirement with
respect to any hazardous waste that might be present
in ancillary pipin
_and
other ancillary equipment between the pits and the wastewater
treatment tanks at the facility, between
the wastewater treatmen
between the wastewater treatment tanks and the
connecti
Urbana Champaign Sanitary District.
24. Pursuant to the
WWTU exemption set forth in 35111. Admin. Code
703.123(e), the facility is
exempt from the RCRA permit requi
respect to any hazardous waste that might
be present
treatment tanks
at the facility.
at 12-13. (Emphasis
added.)
Our records indicate that we served the Amended Answer
on you by Certificate of
Service dated
November 15, 2005. Another copy of our Amended Answer is
enclosed for you
reference. (The WWTU defense
also was discussed in detail in Flex-N-Gate's Motion for
Complete Summary Judgment filed with
the
Board
on May 27, 2005.)
As is
clear from the portions of Flex-N-Gate's original Answer
and Amended Answer set
forth above, it is not the
case, as you assert, that "neither the Complaint nor Answer
has
that any portion of the facility is
a `wastewater treatment unit' . . . [or] `a tank' or `tank
system
. . [or] `ancillary equipment. "' Therefore, we ask
that you revise your Answers to Interrogatory
Nos.
5, 6, 9, 11, 13, 15, 17, and 19 in light of this fact.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
Mr. Morton F. Dorothy
March 8, 2006
Page 4
II. ASSERTION THAT INTERROGATORIES
"CALL[] FOR A LEGAL
CONCLUSION AND/OR RE UEST
COMPLAINANT'S
WORK PRODUCT"
In response
to the Interrogatories discussed above,
as well as Interrogatory Nos.
2, 3, 4,
and 16,
you
also state the following (or use similar
language):
ection. The question
calls for a legal conclusion, and/or
requests
Complainant's work
product.
See your responses to Interrogatory Nos.
2, 3, 4, 5, 6, 9, 11, 13, 15, 16,
17, and 19.
Again, we must disagree
that this is a valid objection.
It seems to us that this case
is
much less about a factual dispute (e.g., in a traffic
accident case, whether the light
was
green
or
red), and much more about a legal dispute,
that is: is Flex-N-Gate complying
with the hazardous
waste management rules? You allege
in Count I of your Complaint
that Flex-N-Gate is not
complying with those
rules, and that Flex-N-Gate is required to have
a RCRA permit for
activities at its facility. See Complaint, Count I. In
order to defend itself against
this allega
Flex-N-Gate must understand exactly what you
allege it is doing that requires
a permit. We
your Complaint
as adequately setting this out,
but Flex-N-Gate
disagrees. This
is the reason for Interrogatory Nos. 2, 3,
and 4. That is, we are trying to
understand (1) exactly what material at the facility
you are alleging is hazardous
waste that is not
being properly managed, (2) what you allege
Flex-N-Gate is doing that does
not constitute
proper management of that
material, and (3), in the case of paragraph
4 of Count I, how that
paragraph relates to your
allegat
It is Flex-N-Gate's position that these
Interrogatory Nos. 2, 3, and
4
constitute
valid
"contention interrogatories."
The court in Bell v. Woodward, a
copy of which is enclosed,
defines the nature
and use of contention interrogatories
as follows:
C ontention interrogatories, distinct
from the identification interrogatories
largely
completed in this case, inquire
into a party's opinions or "contentions"
about a
fact or application
of the law to a fact. See
Fed. R.
Civ.
P.33(c). A
gatory may, under the rules, ask for
the material or facts that
y's contentions in a case.
Id.
Bell v. Woodward, 2005 U.S. Dist. LEKIS
18859 at *5 (N.D. Ill. 2005).
Further, Illinois Supreme Court
Rule 213 provides the authority to serve
interrogatories
as a tool during discovery. This
rule is supplemented by Illinois Supreme
Court Rute 2-01, whrci
provides the scope of discovery,
specifically, Rule 201 states
in relevant part:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
Mr. Morton F. Dorothy
March
8, 2006
Page 5
... a party may obtain by discovery full disclosure regarding any matter relevant to
the subject matter involved
in
the pending
action, whether it relates to the claim or
defense
of the party seeking
disclosure or of any other party....
Ill. S . Ct. R. 201(b)(1 ).
The Committee Comments to Rule 201 (b) note that the
language
of
Rule 201 (b) is taken
directly from the Federal Rules of Civil Procedure.
For these same reasons, it is Flex-N-Gate's position that its Interrogatory Nos. 5, 6,
9, 1 l,
13, 15, 16, 17, 19 constitute valid "contention interrogatories."
These
Interrogatories
focus on
-N-Gate's
WWTU "affirmative defense"
discussed above. As just noted, Illinois Supreme
Court Rule 201(b)(1) provides
that "a
party may obtain by discovery full disclosure regarding
any matter relevant to the subject matter involved in the pending action, whether it relates to the
claim
or defense of the party seeking disclosure."
111.
S. Ct.
R. 201(b)(1). (Emphasis added.)
As set forth
in
more particularity in Flex-N-Gate's Affirmative Defense, Flex-N-Gate
contends that the floor of the plating room, the pits in that floor, pumps at those pits, piping
from
those
pits to wastewater treatment tanks, etc.,
fall
into the
definition of "wastewater treatment
unit," and thus
that waste on
the floor, in the pits, in the piping, etc., is exempt from RCRA
requirements (other than those applying to WWTUs). See Amended Answer, Affirmative
Defense.
You obviously disagree with this contention, as you
have continued to prosecute Count
I of your
Complaint even after Flex-N-Gate
raised this defense. In order to know what evidence
it needs
to present
at
a
hearing
in this
matter, Flex-N-Gate
with Flex-N-Gate's contention that the WWTU exemptio
to understand why you disagree
lies. For example, do you allege
that
what Flex-N-Gate considers to be "tanks" for purposes o the WWTU
exemption do not
meet the
definition of tank? Do you allege that piping that leads
to those tanks, which Flex-N-
Gate considers
to
be "ancillary
equipment"
for the purposes of the WWTU exemption, does not
meet the definition of "ancillary equipment"? Etcetera.
Thus, for these reasons, we ask that you revise your responses to our Interrogatory
Nos.
2, 3, 4, 5, 6, 9,
11,
13, 15, 16, 17, 19, so that (1) we can understand on what basis you allege that
Flex-N-Gate has violated
Section
21 (f) of the Act, and (2) we can understand on what basis you
allege that the WWTU exemption does not apply in this case.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
Mr. Morton F. Dorothy
March s, 2006
Page 6
I II. CONCLUSION
Flex-N-Gate requests that you respond to this
letter and submit amended Answers
to its
Interrogatories no later than Monday, March 20,
2006. Please be advised that if we do
not
receive Amended Answers by that
date, we will have no choice but to move the
Hearing Officer
to compel you to provide such
Amended Answers.
If you have any questions regarding this correspondence,
please feel free to contact
us.
Sincerely,
TGS:REM:plt
enclosures
G WST.003/Cord Dorothy 06 Ltr-Responses to Interrogatories
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 13, 2006
