THIS FILING SUBMITTED ON RECYCLED PAPER

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MORTON F. DOROTHY,

)

)

C om pl ai n an t,

)

)

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 Respondent Flex-N-Gate Corporation’s

MOTION

FOR SUMMARY JUDGMENT AS TO ALL COUNTS OF COMPLAINANT’S

COMPLAINT

, a copy of which is herewit h served upon you.

Respectfully submitted,

FLEX-N-GATE CORPORATION,

Respondent,

Dated: May 27, 2005

By:/s/ Thomas G. Safley

One of Its Attorneys

Thomas G. Safley

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

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CERTIFICATE OF SERVICE

I, Thomas G. Safley, the undersigned, certify that I have served the attached

MOTION FOR SUMMARY JUDGMENT AS TO ALL COUNTS OF

COMPLAINANT’S COMPLAINT 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 electro nic mail on May 27, 2005; and upon:

Mr. Morton F. Dorothy

804 East Main

Urbana, Illinois 61802

by depositing said documents in the United States Mail in Springfield, Illinois, postage

prepaid, on May 27, 2005.

/s/ Thomas G. Safley

Thomas G. Safley

GWST:003/Fil/NOF and COS – CMSJ

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 27, 2005

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MORTON F. DOROTHY,

)

)

C om pl ai n an t,

)

)

v.

)

PCB 05-49

)

FLEX-N-GATE CORPORATION,

)

an Illinois corporation,

)

)

Respondent.

)

AS TO ALL COUNTS OF COMPLAINANT’S COMPLAINT

NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),

by and t hrough its attorneys, HODGE DWYER ZEMAN, and for its Motion for

Summary Judgment as to All Counts of Complainant’s Complaint, states as fo llows:

I.

INTRODUCTION

Complainant has filed a six-count Complaint alleging that Flex-N-Gate vio lated

Illino is statutory and regulatory provisio ns relat ing to the management of hazardous

waste. See

Complaint. Count I of this Co mplaint alleges that Flex-N-Gate is required t o

have a Resource Conservation and Recovery Act (“RCRA”) permit for its facilit y at issue

in this litigation. Id. Counts II through VI of the Complaint allege that Flex-N-Gate

failed to properly implement and take other actions with respect to its “contingency plan”

for the facility, in response to an alleged release of uncontained hydrogen sulfide gas at

the facility. Id.

As discussed below, no RCRA permit is required for t he facilit y, and t he

RCRA “cont ingency p lan” requirements cited by Complainant do not apply to the

facility’s wastewater treatment system. Further, while the parties disagree as to whether

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 27, 2005

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a release o f hydrogen sulfide gas occurred at the facilit y, that fact is not material for

purposes of this Motion.

Flex-N-Gate also today is filing a separate Motion for Partial Summary Judgment

as to Counts II t hrough VI of Complainant’s Co mplaint (“Mot ion for Partial Summary

Judgment”). Because of the length of the arguments in both Motions, and the fact that

many of the facts relevant to the arguments in this Motion are not relevant to the

arguments in the Motion for Partial Summary Judgment, Flex-N-Gate has separated the

arguments in this Mot ion into a separate document in an att empt to present its arguments

in both Motions more clearly. As to Counts II through VI, the Illinois Pollution Control

Board (“Board”) can grant Flex-N-Gate summary judgment under either the arguments

set forth in this Mot ion o r t he arguments set forth in Flex-N-Gate’s separate Motion for

Partial Summary Judgment.

II.

BACKGROUND

The facts of this matter, which, except as discussed, Flex-N-Gate understands to

be undisputed, are as follows:

A.

Operation of Facility/Wastewater Treatment Unit

Flex-N-Gate owns and operates a facility at 601 Guardian Drive in Urbana,

Illinois (“Facility”). Complaint at ¶3. At the Facility, Flex-N-Gate primarily

manufactures bumpers for vehicles. Id.

at ¶4. The manufacturing process includes a

Nickel/Chro mium E lectro plating Line (“E lectroplat ing Line”) in w hich steel bumper s are

cleaned, electro plated with several layers of nickel, electro plated with chro mium, and

rinsed. Id.

The cleaning, plating and rinsing operations take place in open-top tanks

holding up to 10,000 gallons of various chemicals in water solution. Id.

at ¶5. The tanks

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are arranged in two rows, with a catwalk between the rows to access the tops of the tanks.

Id.

The diagram attached hereto as Exhibit A roughly illustrates the layout of the

Electroplating Line. Affidavit of Anthony Rice (“Rice Aff.”), attached hereto as Exhibit

B, at ¶3.

The tanks are mounted on concrete piers above a sloped, coated concrete floor.

Rice Aff. at ¶4; Complaint at ¶6. During the process of cleaning, plating, and rinsing, the

bumpers are dipped into the first tank, raised up, moved into position above the next tank,

dipped into that tank, etc. Rice Aff. at ¶5. When a bumper is removed fro m a tank, some

amount of the solution which that tank contains remains on the bumper. Id.

at ¶6. The

Electroplating Line is engineered so that when bumpers are being moved from tank to

tank, the solut ion t hat remains on the bumpers after removal fro m a t ank may fall fro m

the bumpers and land o n the floo r of the room in which the Line is located (hereinafter

“Plating Room”). Id.

at ¶7. This process is intentional. Id. at ¶8. This is a standard

design for plating operations. Affidavit of James Dodson, attached hereto as Exhi

,

bit C

at ¶ 3.

The floo r of the Plat ing Roo m is coated with epoxy and is sloped towards the

center of the room, where two concrete “pits” are located in the floor. Rice Aff. at ¶9.

The purpose of the slope o f the floo r is t o direct the solut ion which falls fro m the

bumpers and lands o n the floo r into t he “pits” in the center of the flooat r.

¶10.

Id.

The

purpose of the coating on t he floo r is t o make t he floo r imper vious to the materials t hat

fall on it so that such materials are d irected into t he “pits” rather t han soaking into the

floor. Id.

at ¶11. At least part of the floor is hosed down each shift in order to wash any

ma terial tha t ha s fallen on to the floo r into t he “piats.”

t ¶12.Id

.

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A pump is located at each “pit,” which pumps are used to transfer solution that

falls o nto t he floo r into piping w hich leads to equipment in which wastewater from the

Facility is treated (see further d iscussio n below). Iad.t ¶13. These pumps do not run

continuously. Id.

at ¶14.. Rather, a level indicator in each pit automatically actuates each

pump when the material in the pit reaches a pre-determined level. at Id.¶15. This

normally occurs several times each day. Id.

at ¶16. Thus, the longest period of time that

material which falls to the floo r would remain in the p it normally wou ld be a few hours.

Id. at ¶17.

Again, p iping leads fro m the t wo “pits” in the center of the P lat ing Roo m floo r to

numerous pieces equipment in which wastewater from the Facilit y is treated. at Id¶13.

.

The pieces of equipment normally invo lved in August 2004 (the sludge dryer since has

been remo ved), t he material out of which such equipment is constructed, and the purpose

of each piece of equipment, are listed below in the order that wastewater enters each

piece o f equipment:

Piece of Equipment

Purpose of Equipment

Equalization Tank

#1

Fiberglass Reinforced Plastic

(“FRP”)

Serves as a collection point for

wastewater before it is

transferred to the outside

equalization tanks.

Outside EQ Tanks 1

and 2

Mild Steel

These tanks serve as

equalization (mixing) and surge

storage during times when the

WWTP could otherwise be

overwhelmed with too much

flow from the wet processes.

Chrome

Reduction/PH

Adjustment

FRP

PH adjusted and reducing agent

added to reduce hexavalent

chromium to trivalent

chromium in preparation for

hydroxide precipitation.

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pH Adjustment

FRP

Caustic or acid is added to

achieve o ptimum pH for

precipitating dissolved cations.

Reagents are also added here to

begin the process of

coagulation.

Flocculation Tank

Mild Steel

Large charged particles are

added to “floc” smaller

coagulated particles together so

that solids will settle out in the

Lamella.

Lamella

Mild Steel

Designed to physically separate

solids from liquids. From here

liquids flow to the sand filters

and solids are pumped to the

sludge holding tank.

from the Lamella, liquids enter:

Sand Filters

Mild Steel

Serve as final “polishing” step

for any lighter solids that may

not settle out in Lamella.

Final pH Adjustment FRP

If necessary, automatically adds

acid or caustic to adjust pH to

per mit required limits prior to

discharge to POTW.

from the Lamella, solids enter:

Sludge Holding

Tank

Mild Steel

This Sludge Holding Tank

serves to control the flow of

sludge into the S ludge Dr yer or

the Filter Presses.

Filter Presses

Mild Steel

These Filter Presses dewater

sludge. Liquids removed fro m

the sludge is recirculated to

equipment discussed above.

Sludge Dryer

1

(prior

to March 2005)

Mild Steel

This Dryer dewatered the

sludge.

1

The Sludge Dryer was removed from the Facility in March 2005. Dodson Aff., at ¶5.

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Dodson Aff. at ¶4. (All of the equipment in this table is referred to herein as the

Facilit y’s “Wastewater Treatment Equipment.”)

All o f this equipment is located on-site, within the boundar ies of the Facilit y.

Dodson Aff.

at ¶6. The diagram attached hereto as Exhibit D roughly illustrates the

layout of t he wastewater treatment syste m. at Id¶7.

.

Following treatment in the Wastewater Treatment Equipment, liquids are

discharged to a Publicly Owned Treatment Works (“POTW”) operated by the Cities of

Champaign and Urbana, Illinois. Id.

at ¶8; Complaint at ¶10. Following dewatering,

sludge is p laced into a satellite accumulat ion container in preparation for placement into

90-day accumulation containers, where it is accumulated before it is shipped o ff-site for

recycling. Dodson Aff.

at ¶9. Attached hereto as Exhibit E is an example of a manifest

by which Flex-N-Gate has had such sludge transported off-site recycling.

aId.t ¶10.

B.

August 5, 2004, Sulfuric Acid Release

The Facilit y stores approximately 93% concentrated sulfuric acid in a bulk storage

tank which is located in a different room at the Facilit y than the Plat ing Roo m. Rice Aff.

at ¶18. Several pipes lead from this bulk storage tank to various other tanks at the

Facilit y, including a pipe that leads from the bulk storage tank direct ly to Tank No. 8 in

the Plating Room, which tank is part of the Electroplating Line. Id.

at ¶19. Tank No. 8 is

an open-top tank and contains a solution of approximately 10% sulfuric acid and 90%

water. Id.

at ¶20. Sulfuric acid is transferred from bulk storage to Tank No. 8 by means

of a pump that is located at the bulk sto rage tank, which pump is contro lled by a button

located adjacent to Tank No. 8. Id.

at ¶21.

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Near Tank No. 8, the pipe from bulk storage approaches Tank No. 8 traveling

hor izonta lly at a level lower t han the top o f the tank (pipe segment 1), then t ravels

vert ically to a level higher t han the to p of the tank (pipe segment 2), t hen travels

hor izonta lly to a posit ion o ver t he top of the tank (pipe segment 3), then descends

vertically into the top of the tank (pipe segment 4). Id.

at ¶22. A valve is located in pipe

segment 2, which valve must be o pened to allow material to be pumped fro m bulk

storage to Tank No. 8. Id.

at ¶23. A fitting is located above this valve. Id.

at ¶24. The

diagram attached hereto as Exhibit Froughly

illustrates the arrangement of this pipe, the

“pipe segments” not ed above, and t he location o f the valve and fitt inat

g.

¶25Id..

2

On August 5, 2004, the pipe from bulk storage to Tank No. 8 separated at the

fitt ing located above t he valve in the vertical port ion of the p ipe t hat is o utside t he t ank,

i.e., in pipe segment 2. Id.

at ¶26. See Exhibit F . Flex-N-Gate has since determined that

this separation occurred because improper adhesive had been used to join the pipe to the

fitting. Rice Aff. at ¶27. The separation was not caused by a fire or explosion; the

2

While not relevant to this Mot ion, Flex-N-Gate notes Complainant’s allegat ion that

“[s]ulfuric acid is pumped fro m the bulk chemical storage area to the day tan

, whik ch is

located under the catwalk,” and that “[a]cid is then pumped from the day tanas

nkeeded.”

Complaint at Count VI, ¶ 9. (Emphasis added.) At one time, a “day tank” was located in

the Plating Room and used as Complainant describes. Rice Aff. at ¶32. However, Flex-

N-Gate stopped using the day tank in this manner and re-plumbed the system to the

arrangement described in the body of this Memorandum above in December 2001, more

than 2 1/2 years before the separation of the pipe on August 5, 2004. Id.

at ¶33. Thus, on

August 5, 2004, the day tank, while still present in the Plating Room (it since has been

removed complete ly) did not conta in any substance of any kind, and the separation o f the

pipe did not “empt[y] the day tank,” as Complainant alleges in paragraph 11 of Count VI

of his Co mplaint. Id.

at ¶34. For this reason, Flex-N-Gate denied the allegations in

paragraphs 9, 10, and 11 of Count VI of Complainant’s Complaint. See

Flex-N-Gate’s

Answer at 18.

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separation did not cause a fire or explosion; and no fire or explosion otherwise occurred

in connection with the separation. Id.

at ¶28.

The separat ion allowed a small quantit y of sulfuric acid that was in the portion o f

pipe segment 2 above the fitting, and potentially sulfuric acid contained in pipe segments

3 and 4, to be released to the Plating Room floor. Id.

at ¶29. In addition, back siphoning

could have occurred in this situat ion, which could have allowed so me amou nt of the

approximately 10% sulfuric acid solution contained in Tank No. 8 to be released to the

floor as well. Id.

at ¶30. However, an examination of Tank No. 8 after the pipe

separation indicated that at most a small amount of solut ion from Tank No . 8 was back-

siphoned and released to the floor. Id.

at ¶31.

The pump that is used to transfer sulfuric acid from bulk storage to Tank No. 8

was not operating when the pipe separated. Idat .¶35. Thus, sulfuric acid was not

pumped from bulk storage through the separation in the pipe and onto the floor. Id.

at

¶36.

C.

Alleged Production of Hydrogen Sulfide Gas

Complainant asserts that the release of sulfuric acid to the floor generated

uncontained hydrogen sulfide gas. Complaint, ¶15. Flex-N-Gate vehemently denies that

this could have occurred or did occur. Regardless, however, as discussed below, whether

or not uncontained hydrogen sulfide gas was generated at the Facility is irrelevant.

D.

Other Hazardous Waste Production and Management

As noted above, the Facility’s wastewater treatment equipment generates

wastewater treatment sludge. Dodson Aff. at ¶¶4,9,18. While this sludge is located in

the wastewater treatment equipment, Flex-N-Gate considers the sludge to be exempt from

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RCRA regulation. Id. at ¶11; discussion below. After Flex-N-Gate removes the sludge

fro m this equipment, the Facilit y accumulates the sludge in conta iners prior to the

transportation o f the sludge o ff-site for recycling. Dodson Aff. at ¶9.

In addit ion, the Facilit y as part of its nor mal operatio ns produces numerous

(currently ten) other streams of RCRA hazardous waste. Flex-N-Gate Corporation’s

Answers to Complainant’s Interrogatories, relevant portions of which are attached hereto

as Exhibit G

, at 1-2 (answer to Interrogatory No. 3). Currently, those other hazardous

wastestreams are:

Wastestream (Flex-N-Gate Description)

RCRA Classification

Flush solvent

D001 for flammability

chromic acid

D007 for chromium, D002 for

corrosive, D008 for lead

Paint

D001 for flammability

Chrom. solids like concrete with chromic

acid

D007 for chromium

solvent rags

D001 for flammability

b a ri um slud ge

D002 for corrosive, D007 for

chro mium, D005 for barium, D008 for

lead

Aerosols

D001 for flammability

Chrome rags

D007 for chromium

Tanks #1, #3, #4

D002 for corrosive, D007 for

chromium

Chrom. contaminated solids-PPE

D002 for corrosive, D007 for

chromium

Id.

Pursuant to 35 Ill. Admin. Code § 722.134(a) and (c), Flex-N-Gate accumulates

each of these hazardous wastestreams on-site in containers before shipping the waste off-

site for treatment, storage or disposal.

;

Id.Dodson

Aff. at ¶12.

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III.

SUMMARY JUDGMENT STANDARD

Section 101.516(a) of the Board’s procedural rules provides for the filing of

Motions for Summary Judgment. Se35

e

Ill. Admin. Code § 101.516(a). In cases before

the Board, as in cases before a Court, “[s]ummary 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 ent it led to judgment as a matter of

law.” Cassens and Sons, Inc. v. Illinois EPA

, PCB No. 01-102, 2004 Ill. ENV LEXIS

635, at **11-12 (Ill.Pol.Control.Bd. Nov. 18, 2004) (citing Dowd & Dowd, Ltd. v.

Gleason, 181 Ill. 2d 460, 483, 693 N.E.2d 358, 370 (1998)); accord, 35 Ill. Admin. Code

§ 101.516(b).

In Cassens , the Board stated as follow s regarding mot ions for summary judgment:

In ruling on a mot ion for s umma r y judgm

,

thene tBoard “must consider

the pleadings, depositions, and affidavits str ictly against the movant and in

favor of the opposing party.” Id.[i.e.

, Dowd & Dowd, Ltd., cited above]

Summary judgment “is a drastic means o f disposing o f lit igat ion,” a nd

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). However, a party opposing a motion for

summary judgment may not rest on its pleadings, but must “present a

factual basis which would arguably entit le [it] to a judgment.” Gauthier v.

Westfall , 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist 1994).

Cassens

, 2004 Ill. ENV LEXIS at 11-12.

The Illinois Supreme Court’s Purtill

decision, which the Board cites in Cassen, s

further emphasizes that “use of the summary judgment procedure is to be encouraged as

an aid in the expedit ious d isposit ion o f a lawsuit.” Pur

, 111

tillIll.2d

at 240, 489 N.E.2d

at 871 (citations omitted). The Supreme Court goes on as follows:

If a party mo ving for summary judgment supplies facts which, if not

contradicted, would entit le such party to a judgment as a matter of law, the

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opposing party cannot rely on his pleadings alone to raise issues of

material fact. Thus, facts contained in an affidavit in support of a motion

for summary judgment which are not contradicted by counteraffidavit are

admitt ed and must be taken as true for purposes of the motion.

Id.

(Citations o mitt ed.)

For purposes of a motion for summary judgment, a fact is “material” if it is

“[]related to the essent ial elements of the cause of action” (Smit h v. Neumann

, 289 Ill.

App. 3d 1056, 1069, 682 N.E.2d 1245, 1254 (2d Dist. 1997) (citations omitted)); that is,

if it will “affect the outcome of a party’s case.” Westbank v. Maurer, e

,

t

276

al.

Ill. App.

3d 553, 562, 658 N.E.2d 1381, 1389 (2d Dist. 1995). Thus, as the Board has held,

“[f]actual issues which are not material t o the essent ial elements of the cause o f action o r

defense, regardless of how sharply controverted, do not warrant the denial of summary

judgment.” Environmental Site Developers, Inc. v. White & Brewer Trucking, Inc. , PCB

No. 96-180, 1997 Ill. ENV LEXIS 649, at **27-28 (Ill.Pol.Control.Bd. Nov. 20, 1997).

Finally, the Gauthier

decision cited by the Board in Cassens makes c lear that “[ i] f

from the papers on file, a plaint iff fails to establish an element of his cause of act ion,

summary judgment for the defendant is proper.” Gauthi

, 266

er

Ill. App. 3d at 220, 693

N.E.2d at 999 (citations o mitt ed).

IV.

DEFINITION OF “WASTEWATER TREATMENT UNIT” UNDER RCRA.

As discussed below, one issue that is central to each of the counts of

Complainant’s Complaint is whether the equipment that the Facility uses to treat

wastewater meets the definition of “wastewater treatment unit” (“WWTU”) under

RCRA. For the reasons set forth below, this equipment meets t hat definit ion.

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Section 720.110 of the Board’s regulations defines “wastewater treatment unit” as

“a device of which the fo llow ing 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

authorizat ion 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 which is a hazardous waste as

defined in 35 Ill. Adm. Code 721.103, or treats or stores a wastewater

treatment sludge which is a hazardous waste as defined in 35 Ill. Adm.

Code 721.103; and

It meets the definit io n of tank o r tank syste m in this Section.

35 Ill. Admin. Code § 720.110.

Thus, the equipment that Flex-N-Gate uses to treat its plating waste is a

“wastewater treatment unit” under RCRA if it satisfies the fo llowing t hree elements:

(1)

It is part of a wastewater treatment facilit y that has

(a)

an NPDES permit pursuant to 35 Ill. Adm. Code 309 or

(b)

a pretreatment permit or authorizat ion to discharge pursuant to 35

Ill. Adm. Code 310; and

(2)

It

(a)

receives and treats or stores an influent wastewater that is a

hazardous waste as defined in 35 Ill. Adm. Code 721.103, or

(b)

generates and accumulates a wastewater treatment sludge which is

a hazardous waste as defined in 35 Ill. Adm. Code 721.103, or

(c)

treats or stores a wastewater treatment sludge which is a hazardous

waste as defined in 35 Ill. Adm. Code 721.103; and

(3)

It meets the definit io n of tank or tank system.

Id.

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Flex-N-Gate’s wastewater treatment system satisfies each of these elements.

A.

The Wastewater Treatment Equipment “is Part of a Wastewater

Treatment Facility that has . . . Authorization to Discharge Pursuant

to 35 Ill. Adm. Code 310.”

Again, the first element of the definition of WWTU is (in relevant part) whether a

device used to treat wastewater “is part of a wastewater treatment facility that has . . .

authorization to discharge pursuant to 35 Ill. Adm. Code [Part] 310.” The equipment that

the Facility uses to treat wastewater satisfies this element.

First, this equipment is “part of a wastewater treatment facilit y.” For purposes o f

the definit io n of WWTU, the term “facilit y” means “[a]ll cont iguous land and structures,

other appurtenances, and improvements on the land used for treating, storing, or

disposing of hazardous waste.” 35 Ill. Admin. Code § 720.110. As discussed below, the

equipment that makes up the Facilit y’s wastewater treatment system is all lo cated on-site,

and generates, accumulates and stores a wastewater treatment sludge that is a hazardous

waste. Thus, that equipment is part of a “facility.”

Second, the Facilit y has an “authorizat ion to discharge pursuant to 35 Ill. Adm.

Code [Part] 310.” Among other things, Part 310 of the Board’s regulations “authorize[s]

POTWs to issue authorizations to discharge to industrial users.” 35 Ill. Admin. Code §

310.103(b). An “[a]uthorization to discharge” is:

an authorization issued to an industrial user by a POTW that has an

approved pretreatment program. The authorization may consist of a

permit, license, ordinance or other mechanism as specified in the approved

pretreatment program.

35 Ill. Admin. Code § 310.110.

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Complainant admits in his Co mplaint that the Facilit y discharges “[t]reated

wastewater . . . to a sanitary sewer owned by the Urbana Champaign Sanitary District

[“UCSD”].” Complaint at 2, ¶10. Accord , Dodson Aff. at ¶8. The wastewater that the

Facilit y discharges to the UCSD includes wastewater from the Plating Room floor.

atId

.

¶13. And, the UCSD is a POTW, that is, it comprises “devices and systems used in the

storage, treatment, recycling, and reclamation of municipal or industrial wastewater,”

which devices and systems are owned by a “unit of local government,” in this case, the

Cities of Urbana and Champaign, Illinois. See

Exhibit H (Illinois EPA Public Notice

and NPDES Fact Sheet regarding UCSD); 35 Ill. Admin. Code § 310.110 (definitions of

“POTW,” “treatment works”). Finally, Flex-N-Gate discharges to the UCSD pursuant to

an authorization that UCSD issued to Flex-N-Gate, a copy of which authorization is

attached hereto as Exhibit

.

I

Dodson Aff. at¶14.

Thus, the equipment that treats the Facility’s plating waste satisfies the first

element of the definit io n of WWTU because “is part of a wastewater treatment facilit y

that has . . . authorization to discharge pursuant to 35 Ill. Adm. Code [Part] 310.”

B.

The Equipment “Generates and Accumulates a Wastewater

Treatment Sludge Which is a Hazardous Waste as Defined in 35 Ill.

Adm. Code 721.103.

”

The second element of the definit ion o f “wastewater t reatment unit” is, in relevant

part. whether the equipment “generates and accumulates a wastewater treatment sludge

which is a hazardous waste as defined in 35 Ill. Adm. Code 721.103.” See

35 Ill. Admin.

Code § 720.100. Id.

The equipment here also satisfies this element.

As noted above, the Facility’s wastewater treatment processes generate and

accumulate wastewater treatment sludge. Dodson Affidavit, at ¶9. As discussed below,

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this sludge is a hazardous waste as defined in 35 Ill. Adm. Code § 721.103. Id. at ¶15;

accord

, Complaint at 2, ¶10.

Section 721.103(a) provides in relevant part that:

A solid waste, as defined in Section 721.102, is a hazardous waste if the

fo llo wing is true of the waste:

1)

It is not excluded from regulation as a hazardous waste

under Section 721.104(b); and

2)

It meets any of the fo llow ing criter ia:

*

*

*

B)

It is listed in Subpart D of this Part and has not been

excluded from the lists in Subpart D of this Part

under 35 Ill. Adm. Code 720.120 and 720.122.

35 Ill. Admin. Code § 721.103(a).

The Facility’s wastewater treatment sludge “is not excluded from regulation as a

hazardous waste under Section 721.104(b).” See

35 Ill. Admin. Code § 721.104(b).

Further, the Facility’s wastewater treatment sludge “is listed in Subpart D of” Part 721.

Specifically, Section 721.131(a) lists the following as “F006” hazardous waste:

Wastewater treatment sludges from electro plating operations except fro m

the fo llowing processes: (1) sulfuric acid anodizing of aluminum; (2) tin

plating on carbon steel; (3) zinc plating (segregated basis) on carbon steel;

(4) aluminum or zinc-aluminum plating on carbon steel; (5)

cleaning/stripping associated with t in, zinc, and aluminum plating on

carbon steel; and (6) chemical etching and milling of aluminum.

35 Ill. Admin. Code § 721.131(a).

As discussed above, the plating process at issue involves electroplating steel

bumpers with nickel and chromium. Complaint, ¶4. Thus, the Facility’s wastewater

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treatment sludge is “from electroplating operations,” and the exceptions in Sect ion

721.121(a) do not apply.

Finally, the Facility’s wastewater treatment sludge “has not been excluded from

the lists in Subpart D of this Part under 35 Ill. Adm. Code 720.120 and 720.122.”

Dodson Aff., at ¶16. The Board can take official notice that Flex-N-Gate has not applied

to the Board for a site-specific rule or a delisting of this waste under Section 720.120 or

Section 720.122. 35 Ill. Admin. Code § 101.630.

Thus, again, the equipment here satisfies the second element of the definit ion of

“wastewater treatment unit” because it “generates and accumulates a wastewater

treatment sludge which is a hazardous waste as defined in 35 Ill. Adm. Code 721.103.”

C.

The Equipment “Meets the Definition of Tank or Tank System

.”

The third element of the definit io n of “wastewater treatment unit” is w hether the

equipment at issue “meets the definit io n of tank or tank system in” Section 720.110. 35

Ill. Admin. Code § 720.110. The Facilit y’s Wastewater Treatment Equipment meets

these definitions.

Section 720.110 defines “tank” as:

a stationary device, designed to contain an accumulation of hazardous

waste that is constructed primarily of nonearthen materials (e.g., wood,

concrete, steel, plastic) which provide structural support.

Id.

Section 720.110 defines “tank system” as:

a hazardous waste storage or treatment tank and its associated ancillary

equipment and containment syste m.

Id.

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For purposes of the definit io n of “tank system,” Section 720.110 defines

“ancillary equipment” as:

any device, including, but not limited to, such devices as piping, fittings,

flanges, valves, and pumps, that is used to distribute, meter, or control the

flow of hazardous waste from its point of generation to storage or treatment

tanks, between hazardous waste storage and treatment tanks to a point of

disposal onsite, or to a point of shipment for disposal off-site.

Id.

As discussed above, the wastewater at the Facility is treated in several pieces of

equipment. Dodson Aff. at ¶4. This equipment meets the definition of “tank,” because:

(1)

it is stationary;

(2)

it is “designed to contain an accumulation of hazardous waste,” i.e., the

F006 sludge that the treatment of the wastewater creates;

(3)

it is “constructed primarily of nonearthen materials (e.g., wood, concrete,

steel, plastic),” in this case, Fiberglass Reinforced Plastic and steel; and,

(4)

these “nonearthen materials . . . provide structural support.”

Id.

at ¶17.

Further, the coated and sloped floo r of the plat ing room, the pit in the center of

that floor, the pump that is contained in that pit, the pipes that lead from the pit to the

Wastewater Treatment Equipment, all piping between the pieces of Wastewater

Treatment Equipment, and the piping fro m the Wastewater Treatment Equipment to t he

connection w it h the UCSD, meet the definit io n of “ancillary equipment,” because they all

constitute “device[s] . . . used to distribute, meter, or control the flow of hazardous waste

from its point of generation to storage or treatment tanks, between hazardous waste storage

and treatment tanks to a point of disposal onsite, or to a point of shipment for disposal off-

site.” See

35 Ill. Admin. Code § 720.110 (definition of “ancillary equipment”). Again,

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•

the floor of the Plating Room is coated and sloped in order to direct solution

which falls onto the floor during the plating process into the pit in the center

of the floor (i.e., to “control the flow” of this material “from its point of

generation to storage or treatment tanks”);

•

the pit in the center of the Plating Room Floor exists in order to contain

Plat ing Room floo r wastewater until it is pumped into pipes t hat lead t o

the equipment in which the wastewater is treated (again, to “distribute . . .

or control the flow” of the material);

•

the pump located in that pit exists in order to “distribute” material fro m

the pit into those pipes (t he definit io n of “ancillary equipment”

specifically references “pumps”); and,

•

the piping that leads fro m the pit to the Wastewater Treatment Equipment,

and between the Wastewater Treatment Equipment, and fro m the

Wastewater Treatment Equipment to the UCSD “control[s] the flow” of

the material “between hazardous waste storage and treatment tanks . . . to a

point of shipment for disposal off-site.” i.e., to the connection with USCD

(the definit io n of ancillary equipment specifically references “piping”).

Thus, all o f this equipment together meets the definit io n of “ta nk syste m,” i.e., “a

hazardous waste storage or treatment tank” – the Wastewater Treatment Equipment –

“and its assoc iated ancillary equipment” – t he plat ing room floo r, t he pits, t he pumps, and

the piping. Therefore, t his equipment satisfies t he third element of t he definit io n o f

wastewater treatment unit.

D.

The Equipment Constitutes a Wastewater Treatment Unit

.

Complainant has not taken a position regarding whether the equipment discussed

above constitutes a WWTU. Rather, Complainant has stated:

so far as complainant is concerned, the spilled acid was contained and

washed down to a treatment unit that was designed to handle this flow. . . .

The complaint does not allege that this is the unit which causes the facilit y

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to be RCRA regulated, nor does the complaint take a position as to

whether the unit might be exempted from regulation as a “wastewater

treatment unit” or “elementary neutralization unit.”

Complainant’s Response to Motion to Dismiss, ¶¶7.a., b.

As discussed above, however, all of this equipment together does constitute a

WWTU for purposes of RCRA. In light of this fact, Flex-N-Gate is entit led to summary

judgment on each count of Complainant’s Complaint.

V.

FLEX-N-GATE IS ENTITLED TO SUMMARY JUDGMENT ONCOUNT

I – ILLINOIS ENVIRONMENTAL PROTECTION ACT, SECTION 21(F),

AND 35 ILL. ADMIN. CODE § 703.121(A).

Count I of Complainant’s Complaint asserts that Flex-N-Gate is “operating a

hazardous waste treatment and storage facility 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,

Count 1, ¶1. Flex-N-Gate disagrees.

Section 21( f) of the Act provides, in relevant part, that “[n]o person shall . . .

[c]onduct 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 [415 ILCS 5/39], or in

vio lat ion o f any condit io n imposed by such permit, including

periodic reports and full access to adequate records and the

inspection o f facilities, as may be necessary to assure compliance

with this Act and with regulat ions and standards adopted

thereunder.

(2)

in violation of any regulations or standards adopted by the Board

under this Act; or

(3)

in vio lation of any RCRA permit filing requirement established

under standards adopted by the Board under this Act; or

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(4)

in violation of any order adopted by the Board under this Act….

415 ILCS 5/21(f)(1).

It is apparent that Complainant is arguing that Flex-N-Gate has vio lated Section

21(f)(1)(a)

, which prohibits certain operations “wit hout a RCRA permit.” See

Complaint, Count 1, ¶1; Response to Motion to Dismiss, ¶¶3, 4. RCRA permits are

required, in certain situations, by the Board’s RCRA regulations, found at 35 Ill. Admin.

Code Parts 703 and 720 to 729. Specifically, Section 703.121(a) of the Board’s

regulations (which Complainant also asserts that Flex-N-Gate violated) provides that:

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) facilit y; or

2)

In vio lat ion of any condit io n imposed by a RCRA permit.

35 Ill. Admin. Code § 703.121(a).

However, Section 703.123 of the Board’s regulations “exempts specific

categories of persons fro m the requirement of obtaining a permit under the Resource

Conservation and Recovery Act.” In the Matter of: Standards for Universal Waste

Management (35 Ill. Adm. Code Parts 703, 720, 721, 725, 728, AND 733) , PCB No.

R05-8, 2005 Ill. ENV LEXIS 85 (Ill.Pol.Control.Bd. Feb. 3, 2005). Specifically, Section

703.123 states in relevant part that:

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 t ime periods provided in 35 I ll. Adm. Code

722.134;

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***

e)

An owner or operator of an elementar y neutralization unit

or wastewater treatment unit, as defined in 35 Ill. Adm.

Code 720.110….

35 Ill. Admin. Code § 703.123. (Emphasis added.)

Thus, in order to prevail on his claims under Section 21(f) and Section

703.121(a), Complainant must prove the fo llow ing three elements:

1.

that Flex-N-Gate is not within one of the categories which is “not

required to obtain a RCRA permit” under Section 703.123;

2.

that Flex-N-Gate “[c]onduct[ed] [a] hazardous waste-storage,

hazardous waste-treatment or hazardous waste-disposal operation”;

and,

3.

that Flex-N-Gate conducted that operation “without a RCRA

permit for t he site issued by the Agency under subsect ion (d) of

Section 39 of th[e] Act.”

See

415 ILCS 5/21(f)(1), 35 Ill. Admin. Code §§ 703.121(a), 703.123.

Complainant cannot establish t he first element of this test, however, because Flex-

N-Gate manages its hazardous waste pursuant to exemptions set forth in Section 703.123.

A.

Flex-N-Gate is Exempt from the RCRA Permit Requirement

.

Again, Complainant’s Count I asserts that Flex-N-Gate “is operating a hazardous

waste treatment and storage facility 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, Count I, ¶1.

As noted above, under Section 703.123, generators of hazardous waste are exempt from

the RCRA permit requirement if they manage their hazardous waste in certain specified

ways. See

35 Ill. Admin. Code § 703.123, quoted, in relevant part, above.

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Again, here, the Facility produces several hazardous wastestreams. Dodson Aff.

at ¶12. Complainant does not explain in Count I whether he feels that Flex-N-Gate is

required to have a RCRA permit for its management of all of these wastestreams or just

some o f them. SeCome

plaint, Count I. Paragraph two of Count I addresses “waste”

allegedly located on the Plating Room Floor, implying that Complainant is arguing that

Flex-N-Gate is required to have a RCRA permit as to waste contained in the Facility’s

WWTU. See

Complaint, Count I, ¶2. However, in paragraph seven of his Response to

Motion to Dismiss, Complainant states:

The complaint does not allege that this is the unit which causes the facilit y

to be RCRA regulated, nor does the complaint take a position as to

whether the unit might be exempted from regulation as a “wastewater

unit” or “elementar y neutralizat ion unit.”

Response to Motion to Dismiss, ¶7.b. (Emphasis added.)

And, paragraph four of Complainant’s Response to Motion to Dismiss

states:

Paragraph 1 of Count I alleges that “Respondent is operating a hazardous

waste treatment and storage facility without a RCRA permit or interim

status”;

a.

This allegation is sufficient to advise respondent of the nature of

the complaint without complainant having to list the specific TSD

units that cause the facility to be regulated

.

b.

At hearing, complainant intends to show that the facility in fact

includes a hazardous waste treatment unit, sludge drying unit and

sludge storage unit in which hazardous waste is stored before being

shipped off-site for recycling and disposal. Complainant has

requested that the Agency provided a complete list of the TSD

units.

Response to Motion to Dismiss, ¶4. (Emphasis added.)

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Paragraph 6(b) of the Response to Motion to Dismiss likewise mentions “units for

drying and storing hazardous waste sludge,” as well as “the paint line.” Id.

at ¶6(b).

Thus, it is unclear to Flex-N-Gate exactly why Complainant feels that the Facility

is required to obtain a RCRA permit. That is, it is unclear whether Complainant argues

that a RCRA permit is required for t he WWTU, for what Complainant refers to as the

“hazardous waste treatment unit, sludge drying unit and sludge storage unit” (sefurte her

discussio n below), or for some other waste management at the Facilit y that Complainant

has not mentioned.

Regardless, however, Flex-N-Gate manages each of its hazardous wastestreams

pursuant to one o f the exemptions fro m the RCRA per mit requirement contained in 35 I ll.

Admin. Code § 703.123. Therefore, as Section 703.123 states, Flex-N-Gate is “not

required to obtain a RCRA permit” for its management of any o f these wastestreams.

1.

Flex-N-Gate is in Part Exempt from the RCRA Permit

Requirement under the Wastewater Treatment Unit Exempt

. ion

As discussed above, the Facility’s treatment of wastewater generates a wastewater

treatment sludge. Dodson Aff., at ¶¶4,9. When that sludge is generated, it is located

inside equipment that is part of the Facility’s WWTU. Id.

at ¶18. Before Flex-N-Gate

removes the sludge from the equipment, no RCRA permit is required because of the

WWTU exemption contained in 35 Ill. Admin. Code § 703.123(e). See, e.g.

, USEPA

Call Center Questions and Answers, June 2004

, a copy of which is attached hereto as

Exhibit J

(“Treat ment sludge generated from the management of characteristic

wastewaters in a WWTU must be managed as hazardous once removed from the tanf i itk

exhibits a characteristic of hazardous waste.”) (Emphasis added.) Thus, Flex-N-Gate is

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not required to have a RCRA permit with regard to the WWTU sludge while it is

contained in the WWTU.

Again, in his Response to Motion to Dismiss, Complainant specifically refers to

“a hazardous waste treatment unit,” a “sludge drying unit”/“unit[] for drying . . .

hazardous waste sludge”, and a “sludge storage unit”/”unit for . . . storing hazardous

waste sludge.” Response to Motion to Dismiss, ¶¶4.b, 6.b. By the first term, “hazardous

waste treatment unit,” Complainant refers to t he Facilit y’s WWTU. This is clear from

paragraph seven of Complainant’s Response to Motion to Dismiss, in which Complainant

quotes paragraph ten of the Complaint, which alleges: “The facility includes a hazardous

waste treatment unit, which includpH

es

adjust ment, reduction of hexavalent chromium

with sod ium metabisulfite, and precipitation o f a nickel and chromium hydroxide

sludge.” Id., ¶7; Complaint, ¶10. (Emphasis added.) The only equipment at the Facility

to which “includes pH adjustment, reduction of hexavalent chromium . . . , and

precipitat ion of a nickel and chro mium hydroxide sludge” is the Facilit y’s WWTU.

Dodson Aff., at ¶19.

3

By the terms “sludge drying unit”/“unit[] for drying . . . hazardous waste sludge,”

Complainant is referring to the Sludge Dryer that was part of the Facilit y’s WWTU prior

to March 2005, and/or the Filter Presses, which are/were used to dewater sludge

produced in the WWTU; this is the only equipment at t he Facilit y used to dry “sludge.”

Dodson Aff. at ¶20. This equipment is not subject to the RCRA permit requirement,

however, as it is part of the Facilit y’s WWTU. The United States Environmental

3

Flex-N-Gate disagrees with Complainant’s description of the chemicals used in the

WWTU (see

Answer at ¶10), but for purposes of this Motion, this disagreement is

irrelevant.

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Protection Agency ( “USEPA”) has long held that equipment used to dewater sluge “that

is part of a wastewater treatment system is excluded fro m the need to obtain a RCRA

permit provided the equipment meets t he definit ion of wastewater treatment unit as

defined in 40 CFR 260.10, and actually is used to evaporate water from the sludge.”

Sludge Dehydration Equipment as a Wastewater Treatment Uni

, USEPA

t

Faxback

13003, No. 9432.1987(08), Aug. 3, 1987, attached hereto as Exhibit K

. (Emphasis

added.) Accord

, RCRA/Superfund Hotline Monthly Summary, May 84

, USEPA

Faxback 12220, No. 9432.1984(04), attached hereto as Exhibit L

(“a tanklike portable

filter press used in a wastewater treatment facility . . . would be excluded from regulation

by 265.1(c)(10) and 264.1(g)(6) as a wastewater treatment unit.”) As noted above, the

sludge dewatering equipment meets the definit ion of WWTU.

diSeescussion above.

Thus, the fact that the Facility’s WWTU dries wastewater sludge does not mean that the

Facilit y is required to obtain a RCRA permit.

(USEPA also has held that a “chemical flocculation unit” used to treat wastewater

can be exempt under the WWTU exemption, provided it meets the definition of WWTU.

USEPA Faxback 14104, No. PPC 9451.1996(08), Sept. 23, 1996, attached hereto as

Exhibit M

. As not ed above, t he Facilit y’s WWTU also includes a flocculat ion u nit which

meets that definition).

By the terms “sludge storage unit”/”unit for . . . storing hazardous waste sludge,”

Complainant is referring to the tank used to store sludge before dewatering and/or the

satellite accumulat ion container into which sludge is placed after dewatering. Dodson

Aff. at ¶21. The storage tank likewise does not require a RCRA permit, however,

because it also is part of the Facilit y’s WWTU. Again, in relevant part, Section 720.110

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of the Board’s regulations defines WWTU as a device regulated by the Clean Water Act

that meets the definition of “tank” and “treats or stores

a wastewater treatment sludge

which is a hazardous waste as defined in 35 Ill. Adm. Code 721.103.” 35 Ill. Admin.

Code § 720.110. Thus, USEPA has specifically held that “a storage tank for sludge . . . .

that is part of a wastewater treatment system subject to regulation under either Section

402 or 307(b) [o]f the Clean Water Act is excluded from regulation under 265.1(c)(10).”

USEPA Faxback 12190, March 1984, attached hereto as Exhibit N. And, the satellite

accumulat ion conta iner is exempt fro m the RCRA permit requirement under 35 Ill.

Admin. Code § 722.134(c).

Thus, again, all of the equipment that Flex-N-Gate uses to treat its wastewater is

exempt from the RCRA permit requirement under the WWTU exemption.

2.

Flex-N-Gate Also is Exempt under the Generator Accumulation

Exemption.

In addit ion to the WWTU exempt ion, Flex-N-Gate is exempt from the RCRA

permit requirement under the exemption for generators that accumulate hazardous waste

in conta iners pr ior to shipment of t he waste off- site for treatment, storage o r disposal.

See

35 Ill. Admin. Code § 703.123(a), (c).

Again, Flex-N-Gate manages the WWTU sludge (after it is removed from the

WWTU), and other hazardous wastestreams that the Facility generates, through on-site

accumulat ion in conta iners prior to shipment off-site for t reatment, storage, or disposal.

Dodson Aff. at ¶¶9,12. This is authorized by Section 722.134(a) and (c) of the Board’s

regulations. See

35 Ill. Admin. Code §722.134(a), (c). Further, under 35 Ill. Admin.

Code § 703.123, “[g]enerators that accumulate hazardous waste on-site for less than the

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time periods provided in 35 Ill. Adm. Code 722.134” are “among those that are not

required to obtain a RCRA permit.” 35 Ill. Admin. Code § 703.123. Thus, Flex-N-Gate

is not required to have a RCRA permit for its management of the WWTU sludge after it

is removed from the WWTU, or for the other hazardous wastestreams produced at the

Facility.

3.

Flex-N-Gate is not Required to Have a RCRA Permit

.

Again, the Facility generates several hazardous wastestreams. Under 35 Ill.

Admin. Code § 703.123(e), no RCRA permit is required for the management of one o f

those wastestreams, the WWTU sludge, while it is located inside the WWTU. Under 35

I ll. Admin. Code § 703.123(a), no RCRA permit is required for t he management of the

WWTU sludge after it is removed from the WWTU, or as to the other hazardous

wastestreams, because all of these wastestreams are accumulated in containers before

being transported off-site for treatment, storage or disposal. Thus, the Facilit y is not

required to have a RCRA permit, and the Board should grant Flex-N-Gate summary

judgment on Count I.

Complainant’s Arguments in Support of Count I are in Error

.

In his Response to Flex-N-Gate’s Motion to Dismiss, Complainant makes several

arguments in an attempt to support his claim that Flex-N-Gate is required to have a

RCRA permit. As discussed below, each of these arguments fails.

1.

RCRA Allows Flex-N-Gate to Manage Different Waste Streams

under Different Exemptions fro m the RCRA Permit Requir em

. ent

First, Complainant appears to argue that (1) only one exemption contained in

Section 703.123 can apply to a facilit y at any one time, and (2) that if a facilit y relies on

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one exempt ion for some o f its waste (for example, the 90-day accumulat ion e xempt ion o f

Section 703.123(a)), the facility must manage all of its hazardous waste under that

exemption, or obtain a RCRA permit. For example, in response to Flex-N-Gate’s Motion

to Dismiss, Complainant states:

Section 21(f) . . . and [Section] 703.121(a) require that any person

conducting a hazardous waste treatment, storage or disposal operation

have a RCRA permit[, but] Board rules establish certain specific

exceptions to this general rule, including exclusio ns for facilit ies

consisting only of

“elementar y neutralization units” or “wastewater

treatment units” (Sections 703.123(e) and 720.110)).

*

*

*

If respondent wishes to pursue the “elementar y neutralizat ion unit” and

“wastewater treatment unit” defenses, respondent needs to file an answer

and raise these as affirmative defenses (although this defense would only

work if all units at the facilit y were exclude). d

*

*

*

The contingency plan was required for a facilit y exempt pursuant to

Sections 703.123(a) and 722.134(a), but would not have been required if

the facility were exempt as “elementary neutralizatio n unit s” or

“wastewater treatment units.”

Response to Motion to Dismiss, ¶¶3, 3.a, 7.c, 9. (Emphasis added.)

The import of this argument appears to be as follows: because Flex-N-Gate

manages hazardous waste in part under 35 Ill. Admin. Code § 722.134(a) and (c) – i.e.,

accumulat ing waste for no more than 90 days befo re sending the waste off-site for

treatment, storage or disposal – when Flex-N-Gate accumulates hazardous waste for

longer than 90 days pursuant to other exemptions from the RCRA permit requirement

(e.g., the WWTU exemption), Flex-N-Gate has violated Section 722.134(a) and is

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required to have a RCRA permit. See, e.g., Response to Motion to Dismiss, ¶10. If this

accurately reflects Complainant’s argument, Flex-N-Gate strenuously disagrees.

Specifically, Flex-N-Gate does agree that Section 703.123(e) specifically exempts

“[a]n owner or o perator of an e lementar y neutra lization unit or wastewater t reatment

unit” fro m the RCRA permit requirement, and that a facilit y which only treats hazardous

waste in an “elementar y neutra lizat ion unit” or “wastewater treatment unit” is not

required to have a contingency plan. See

Response to Motion to Dismiss, ¶9. Flex-N-

Gate does not agree

, however, that Section 703.123(e) applies only to “facilities

consisting only of

‘elementary neutralization units’ or ‘wastewater treatment units’”

(Response to Motion to Dismiss, ¶3.a.), and, more broadly, Flex-N-Gate disagrees with

Complainant’s posit ion t hat a party may manage hazardous waste under only on o ne

exemption from the RCRA permit requirement at a time.

First, Complainant cites no authorit y to support this posit ion. Flex-N-Gate has

searched for such authority, and has found none.

Second, Complainant’s position is not required by RCRA. USEPA established

the exempt ions fro m the RCRA permit requirement because it felt that if generato rs acted

within the terms of those exemptions, they were being sufficiently protective of human

healt h and the environment, and therefore no RCRA permit was necessary. Thus, for

example, USEPA has explained that, with regard to the WWTU exemption, “protection

of human healt h and t he environment is ensured by regulat ion under the CWA rather t han

RCRA.” USEPA Faxback 11408, No. 9471.1989(01), at p. 2 (Mar. 20, 1989), attached

hereto as Exhibit O. This is just as true if a generator complies with several exemptions

as it is if a generato r complies w ith just o ne exempt ion. As long as all o f a generator’s

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hazardous waste is managed pursuant to one of the exemptions in Section 703.123,

human health and the environment still are protected.

Thus, as Flex-N-Gate stated in its Response to Complainant’s Motion to Join

Agency as Party in Interest and to Extend Time to Respond to Motion to Dismiss

(“Mot ion to Join Agency”), “Flex-N-Gate is a llow ed to rely on d ifferent exemptions fro m

RCRA permitt ing requirements for different wastestreams at its facilit y, as appropriate

under the circumstances.” Response to Motion to Join Agency at 6-7, ¶29.

2.

Complainant has the Burden to Prove that Flex-N-Gate is Required

to Have a RCRA Permit .

Next, Complainant argues that, under Section 21(f) of the Act and 35 Ill. Admin.

Code § 703.121(a),

Complainant’s burden is to show that respondent falls within the general

rule. If respondent wishes to show that this facilit y falls wit hin a n

exclusion, respondent needs to raise that exclusion by way of affirmative

defen se, and to introduce evidence as to the applicability of the exclusion.

(35 Ill. Adm. Code 103.205(d)).

Response to Motion to Dismiss, ¶3.c. (Emphasis added.) See alsoid.

, ¶¶6.b, 7.c.

Again, Flex-N-Gate disagrees.

First, it is axiomatic that “[t]he burden of proof in an enforcement action is on the

complainant.” People v. Poland, et

.,

alPCB

No. 98-148, 2001 Ill. ENV LEXIS 407, at

*30 (Ill.Pol.Control.Bd. Sept. 6, 2001). Accord

, 415 ILCS 5/31(e). Complainant has

filed papers with this Board alleging that Flex-N-Gate violated Section 21(f) and Section

703.121’s requirements to obtain a RCRA permit. In order to prove such violations, it is

Complainant’s burden to prove that Flex-N-Gate is required to obtain such a permit.

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Second, Complainant cites no authorit y to support his argument that Flex-N-Gate

“needs to raise th[e] exclusion[s]” of Section 703.123 “by way of affirmative defense.”

Complainant cites Section 103.204(d) of the Board’s procedural rul

4

esb,ut that Section

simply provides for affirmative defenses in cases before the Board; it does not provide

that a party accused of violating Section 21(f) and Section 703.123 has the burden of

proving that it is not required to have a RCRA permit.

Third, the exempt ions of Section 703.123 simply do not meet the definit ion o f

“affirmative defense.” As the Board recently stated,

An affirmative defense is a response to a claim which attacks the

legal

r ight to br ing an action, as opposed to attacking the truth o f claim. [I]f the

pleading does not admit the opposing party’s claim but rather attacks the

sufficiency of that claim, it is not an affirmative defense

.

People v. Skokie Valley Asphalt Co., Inc.,

,

ePCB

t al

No. 96-98, 2004 Ill. ENV LEXIS

585, at ** 19-20 (Sept. 2, 2004) (citations and quotations omitted). (Second emphasis

added.)

Thus, for example, an argument that a claim is barred by the doctrine of laches, or

by a statute of limitations, is an “affirmative defense.” Id.

(as to laches); People v.

Peabod y Coa l Co., PCB No. 99-134, 2003 Ill. ENV LEXIS 314, at *15

(Ill.Pol.Control.Bd. June 5, 2003) (“The Board emphasizes that a violation of the statute

of limitations can be a valid affirmative defense when properly pled.”) This is because

bot h laches and a statute of limitat ions defense meet the definit io n of “affir mat ive

defense” set out by the Board above. That is, in the case of both arguments:

4

Complainant cites to “35 Ill. Adm. Code 103.205(d).”

Response to Motion to Dismiss

at 2. (Emphasis added.) This appears to be a typographical error, however, as Title 35

contains no Section 103.205.

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(1)

a respondent “admit[s] the opposing party’s claim” (e.g., for purposes of

the affirmative defense, a respondent admits that it violated the Act); but,

(2)

the respondent “attacks the

legal

right to bring an action” based on that

violation, e.g.,

(a)

in the case of a statute of limitations defense, the respondent argues

that, even though it vio lated t he Act, t he complainant has no legal

right to bring an action based on that violation, because (in the case

of an action by a private party) the five-year statute of limitat ions

contained in 735 ILCS 5/13-205 has passed; or,

(b)

in the case of a laches defense, the respondent argues that, even

though it violated the Act, the complainant has no legal right to

bring an action based on that violation, because the respondent has

been prejudiced by the complainant’s delay in br ing ing the action.

By contrast, Flex-N-Gate does not

admit that it violated the RCRA permit

requirement. Rather, Flex-N-Gate denies that it violated the RCRA permit requirement,

because that requirement never applied to Flex-N-Gate in the first place. See

discussion

infra. And, Flex-N-Gate does not “attack[]” Complainant’s “

legal

right to bring” his

claims. Rather, Flex-N-Gate argues that Complainant cannot prove all of the elements of

his claims.

Thus, as the Board stated in Skokie Valley Asphalt Co., Inc.

, because Flex-N-

Gate “does not admit [Complainant’s] claim but rather attacks the sufficiency o f that

claim,” Flex-N-Gate’s argument that the RCRA per mit requirement does not apply to it

“is not an affirmative defense

.” Therefore, (1) Flex-N-Gate was not required to raise

WWTU exemption to the RCRA permit requirement as an affirmative defense in its

Answer, and (2) Flex-N-Gate does not have the burden of proving that it is not required

to obtain a RCRA permit, but rather, Complainant has the burden of proving that Flex-N-

Gate is required to obtain a RCRA permit.

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3.

Complainant Misunderstands Flex-N-Gate’s Argumen

. ts

Third, Complainant asserts that Flex-N-Gate “is arguing that the facilit y is not

required to have a RCRA permit because it includes a treatment unit that respondent

claims is an ‘elementary neutralizat ion unit’ or ‘wastewater treatment unit.’” Response

to Motion to Dismiss at ¶5. Accor

,

dId

. at ¶6.b (“Respondent cannot establish that a

facilit y is e xempt fro m the per mit requirement by arguing that o ne unit is e xempt.”)

Flex-N-Gate has never made, and does not now make, such an argument.

Again, as stated in Flex-N-Gate’s Response to Complainant’s Motion to Join

Agency, at the Facility:

(1)

Flex-N-Gate produces several different wastestreams, some of which are

“hazardous” under RCRA;

(2)

Flex-N-Gate relies on exemptions fro m RCRA permitt ing requirements

with regard to each of its wastestreams that is “hazardous”; and,

(3)

specifically, Flex-N-Gate relies on different

exempt ions for different

wastestreams, as appropriate depending on the circumstances.

Response to Motion to Join Agency (cit ing Oct. 29, 2004, Affidavit of Jim Dodson, a

copy of which is attached hereto as Exhibit

,

Pat

¶¶4-6.)

Thus, Flex-N-Gate is not “arguing that the facility is not required to have a RCRA

permit because it includes a treatment unit that . . . is a[] . . . ‘wastewater treatment unit.’”

Response to Motion to Dismiss at ¶5. Rather, Flex-N-Gate is arguing, and always has

argued, that the Facility is not required to have a RCRA permit because the Facility

manages each of its hazardous wastestreams under one of the exemptions to the RCRA

permit requirement contained in 35 Ill. Admin. Code § 703.123. It just so happens that

Flex-N-Gate manages different hazardous wastestreams under different exemptions.

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This is related to Complainant’s argument discussed above that a facilit y may not

rely on more than one exempt ion fro m the RCRA per mit requirement for its hazardous

waste. As discussed above, this simply is not the law. Flex-N-Gate, and any other entity

that produces hazardous waste, is allowed to manage different hazardous wastestreams

under different exemptions fro m the RCRA permit requirement. As long as each

wastestream is managed under one of the exemptions contained in Section 703.123, the

facility which produces the wastestreams is exempt from the RCRA permit requirement.

C.

Flex-N-Gate is Entitled to Summary Judgment on Count I

.

Thus, again, Complainant cannot establish the first element of his claims under

Section 21(f) and Section 703.121(a). “If from the papers on file, a plaintiff fails to

establish an element of his cause of act i, ons um mar y jud gm ent for th e defendant is

proper.” Gauthier

, 266 Ill. App. 3d at 220, 693 N.E.2d at 999. (Emphasis added;

citations o mitt ed.) Thus, the Board must reject Complainant’s argument that Flex-N-

Gate is violating Section 21(f) and 35 Ill. Admin. Code § 703.121(a) by “operating a

hazardous waste treatment and storage facility without a RCRA permit or interim status,”

and must grant Flex-N-Gate summary judgment on Count I of Complainant’s Complaint.

VI.

COUNTS II THROUGH VI.

Counts II through VI o f Co mplainant’s Complaint assert that Flex-N-Gate

violated various provisions of Illinois’ RCRA regulations regarding “contingency plans,”

which provisions are located in 35 Ill. Admin. Code Part 725, Subpart D. Specifically,

Counts II through VI assert that Flex-N-Gate violated the following regulations.

•

35 Ill. Admin. Code § 725.151(b), which provides that:

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The provisio ns o f the [continge ncy] plan must be carried o ut immediately

whenever there is a fire, explosion or release of hazardous waste or

hazardous waste constituents which could threaten human healt h or t he

environment.

Complaint, Counts II and VI;

•

35 Ill. Admin. Code § 725.156(j), which provides that:

The owner or operator shall note in the operating record the time, date,

and deta ils of any incide nt that requires implementing the contingency

plan. Wit hin 15 days a fter the incident, it shall submit a writt en report on

the incident to the Director. The report must include . . . .

Complaint, Count III;

•

35 Ill. Admin. Code § 725.154(b), which provides that:

The contingency plan must be reviewed and immed iately amended, if

necessary, whenever . . . [t]he p lan fails in a n emergency.

Complaint, Count IV; and,

•

35 Ill. Admin. Code § 725.154(c), which provides that:

The contingency plan must be reviewed and immed iately amended, if

necessary, whenever:

*

*

*

c)

The facilit y changes--in its design, construction, operation,

mainte nance 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.

(Complaint, Count V).

For the reasons set forth below, Flex-N-Gate disagrees.

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A.

Facility’s WWTU.

As discussed further below, the Facilit y has a RCRA cont ingency plan. Dodson

Aff., at ¶22. Specifically, as discussed in Flex-N-Gate’s Motion for Partial Summary

Judgment, this contingency plan is part of the Facility’s “Emergency Response and

Contingency Plan,” which also incorporates the Facility’s OSHA emergency response

plan and other general Facilit y operating requirements. SeeMotion

for Partial S umma ry

Judgment at 31-35. Flex-N-Gate prepared this contingency plan because it manages

some of the hazardous waste generated at the Facility pursuant to the accumulation

provision of 35 Ill. Admin. Code § 722.134(a) (Dodson Aff., at ¶23) and, Section

722.134(a) requires it to have this Plan. See

35 Ill. Admin. Code § 722.134(a)(4).

However, unlike Section 722.134(a), 35 Ill. Admin. Code § 725.101(c)

specifically provides that:

The requirements of this Part do not apply to

:

*

*

*

10)

The owner or operator of

an elementary neutralization unit

or a wastewater treatment unit

as defined in 35 Ill. Adm.

Code 720.110, provided that if the owner or operator is

diluting hazardous ignitable (D001) wastes (other than the

D001 High TOC Subcategory defined in 35 Ill. Adm. Code

728.Table T) or reactive (D003) waste in order to remove

the characteristic before land disposal, the owner or operator

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shall comply with the requirements set out in Section

725.117(b).

35 Ill. Admin. Code § 725.101(c)(10). (Emphasis added.)

5

Thus, to prove a violation of any of the contingency plan regulations Complainant

cites in Counts II through VI, Complainant fir st must prove the fo llow ing e lement:

1.

the incident at issue does not involve “a wastewater treatment unit

as defined in 35 Ill. Adm. Code 720.110.”

(Flex-N-Gate sets out all of the elements for each of these claims in its Motion for Partial

Summary Judgment.)

Thus, for example, Section 725.151(b) provides that the Facility’s contingency

plan “must be carried out immed iately whenever there is a fire, e xplosio n or release o f

hazardous waste or hazardous waste constituents which could threaten human health or

the environment.” 35 Ill. Admin. Code § 725.151(b). Complainant does not allege that

any “fire” or “explosion” occurred at the Facility. See

Counts II, VI. But, Complainant

does allege that a “release of hazardous waste or hazardous waste constituents” occurred.

Id.

Specifically, Complainant alleges that such “release” occurred from the floor of the

Plating Room

, which, as discussed above, is part of the Facility’s WWTU. Id. Under

Section 725.101(c)(10), however, Section 725.151(b) does not apply to the Facility’s

WWTU. Thus, even if a “fire, explosion, or release of hazardous waste or hazardous

waste constituents” had occurred at the Facility in connection with the WWTU (which

5

The minor exception to this rule for wastewater treatment units “diluting hazardous

ignitable (D001) wastes (other than the D001 High TOC Subcategory defined in 35 Ill.

Adm. Code 728.Table T) or reactive (D003) waste in order to remove the characteristic

before land disposal” does not apply here, because, among other reasons, Flex-N-Gate

discharges its wastewater to a POTW and does not dispose of it by land disposal. See

discussion above.

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Flex-N-Gate denies), Flex-N-Gate would have no obligation to take any action under 35

Ill. Admin. Code § 725.151(b), as that Section does not apply to WWTUs. The same is

true of the other contingency plan regulat ions cited by Co mplainant.

Therefore, because none of these regulations apply to the Facility’s WWTU, Flex-

N-Gate is entitled to summary judgment on Counts II through VI as well.

B.

Incorrect .

In his Response to Flex-N-Gate’s Motion to Dismiss, Complainant makes several

arguments relevant to this point. As set forth below, those arguments are incorrect.

1.

Flex-N-Gate does not Argue that the Facility Does not Need a

RCRA Cont ingency P l.an

First, Complainant apparently understands Flex-N-Gate to be arguing that the

Facility does not need a contingency plan. See, e.g. , Response to Motion to Dismiss, ¶23

(“. . . respondent argues that it was not required to notify the Agency because it was not

required to have a contingency plan . . . .”) Complainant misunderstands Flex-N-Gate’s

argument; Flex-N-Gate does not now argue, and never has argued, that the Facility does

not need a contingency plan.

As noted above, the Facility manages several different hazardous waste streams

under different exclusio ns to the RCRA permit requirement.

diSescussie

on supra. One

of the exclusions under which Flex-N-Gate manages some of its hazardous waste is 35

Ill. Admin. Code § 703.123(a). Dodson Aff. at ¶12.

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Section 703.123(a) provides:

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 t ime periods provided in 35 I ll. Adm. Code

722.134.

35 Ill. Admin. Code § 703.123(a).

In turn, Section 722.134 provides in relevant part that a generator accumulating

waste on-site must comply wit h, among other things, “the requirements for treatment,

storage, and disposal facility owners or operators in 35 Ill. Adm. Code 725.Subpart[] . . .

D [Contingency Plan and Emergency Procedures].” 35 Ill. Admin. Code § 722.134(a)(4).

Thus, any party that manages some of its hazardous waste under Section 722.134 and the

exemption from the RCRA permitting requirement at Section 703.123(a) – including

Flex-N-Gate – is required to have a contingency plan.

Thus, again, Flex-N-Gate is not arguing that the Facility is not required to have a

contingency plan. Rather, Flex-N-Gate is arguing that the Facility’s contingency plan

does not apply under the facts of this case

6

.

6

Complainant also attempts to link his misunderstanding of Flex-N-Gate’s argument to

what Flex-N-Gate has done or has not done under OSHA, stating: “In now arguing that

the facilit y was not subject to the RCRA contingency plan requirement, respondent is

arguing that it intent ionally vio lated the requirement to prepare an OSHA Emergency

Response Plan.” Response to Motion to Dismiss, ¶13(b). As just noted, however, Flex-

N-Gate is not “arguing that the facilit y was not subject to the RCRA contingency plan

requirement.” And, while irrelevant in this foru m, Flex-N-Gate has never vio lated any

“requirement to prepare an OSHA Emergency Response Plan.” Dodson Aff. at ¶___.

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2.

The Facility’s Contingency Plan does not Apply to the Facility’s

WWTU .

Second, Complainant apparently takes the position that because Flex-N-Gate

manages some of its hazardous waste under Section 722.134(a), Flex-N-Gate’s RCRA

contingency plan applies to the Facility’s WWTU. Specifically, Complainant argues:

Once a facilit y is subject to RCRA, many of the requirements apply to

portions of the facilit y other than the regulated TSD units. Specifically,

the contingency plan requir ement of 35 Ill. Adm. Code 725.151 provides

that the owner or o perator “must have a contingency plan for his facil.” it y

i.

This was inte ntionally worded this way so that in an emergency

situation, for example an acid spill invo lving a release o f a toxic

gas, responders would not need to go to the Supreme Court for a

ruling as to whether the release was coming from a regulated unit

before deciding what to do.

ii.

This approach also allowed the RCRA contingency plan to be used

to meet the broader OSHA emergency response plan requirement

discussed below.

Response to Motion to Dismiss, at ¶6.c. (Emphasis added.)

Complainant also states:

In paragraph 37 and 38 of the motion to dismiss, respondent contends that

Section 725.151(b) does not apply to a “wastewater treatment unit” or

“elementary neutralizat ion unit”.

a.

As discussed above, Section 725.151 provides that the owner or

operator “must have a continge ncy plan for his facilit y”. The

contingency plan applies to the entire facility, not just to regulated

TSD units.

Response to Motion to Dismiss, ¶11.

Flex-N-Gate disagrees.

Fir st, Complainant does not cite any author it y in support of these arguments, and

Flex-N-Gate has been unable to locate any such authority.

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Second, Complainant’s posit ion would render the exclusio n o f Section

725.101(c)(10) meaningless. “It is well settled that in interpreting statutes, ‘[s]tatutes

should be construed so that the language is not rendered meaningless or superfluous.’”

St. Clair Co. v. Mund

, AC No. 90-64, 1991 Ill. ENV LEXIS 671, at *8

(Ill.Pol.Control.Bd. Aug. 22, 1991) (quoting People v. Singleton , 82 Ill. Dec. 666, 469

N.E. 2d 200 (Ill. 1984)). Accord

, Langendorf v. City of Urbana , 197 Ill. 2d 100, 109, 754

N.E.2d 320, 325 (Ill. 2001) (“A statute should be construed so that no word or phrase is

rendered meaningless or superfluous.”) This rule applies equally to the construction of

administrative regulations. See, e.g.

, Panhandle Eastern Pipe Line Co. v. Illinois Envtl.

Protection Control Bd.

, 314 Ill. App. 3d 296, 300, 734 N.E.2d 18, 21 (4th Dist. 2000)

(“constructionof administrative rules and regulations is governed by the same standard as

construction of statutes.”) (Citations o mitt ed.)

Again, Section 725.101(c)(10) provides that Part 725 of the Board’s regulations,

including the contingency plan regulations, “do not apply to

. . . . [t]he owner or operator

of an elementary neutralization unit or a wastewater treatment unit

as defined in 35 Ill.

Adm. Code 720.110.” 35 Ill. Admin. Code § 725.101(c)(10). Complainant, however,

argues that Section 725.151(b) does apply to a WWTU located at a facilit y that is

required to have a contingency plan because it accumulates waste pursuant to Section

722.134(a). This argument renders the exclusion of Section 725.101(c)(10) meaningless,

which is improper.

Third, by rendering Section 725.101(c)(10) meaningless as to those facilities that

manage hazardous waste in a WWTU and by another method, Complainant is creating an

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exception to Section 725.101(c)(10) that does not exist in the regulation. That is,

Complainant reads Section 725.101(c)(10) to state:

The requirements of this Part do not apply to :

*

*

*

10)

The owner or operator of an elementary neutralizatio n unit or a

wastewater treatment unit as defined in 35 Ill. Adm. Code 720.110,

unless the owner or operator of the elementary neutralization unit

or wastewater treatment unit manages other hazardous waste at the

same facilit y under a different subsect ion of this Section(c

,

)

provided that . . . .

This request by Complainant that the Board create an exception to a rule that does

not exist in the rule is improper. As the Illinois Appellate Court has stated, the Board

may not “ignore . . . the p lain meaning of [its] rules and, in effect, amend t hem through

construction rather than the usual rulemaking procedures”; rather, where “the language

utilized” in a Board regulation is clear, the language can be changed only “by proper

amendment of the rules. In the inter im, the PCB is bound to follow the ru les as stated.”

Continental Grain Co. v. IPCB

, 475 N.E.2d 1362, 1363 (Ill. App. 5th Dist. 1985).

Fourth, t here is no reason to ignore the explicit language of Section

725.101(c)(10). Complainant acknowledges that if a facility treats all of its hazardous

waste in a WWTU, the facility is not required to have a contingency plan. Response to

Motion to Dismiss, ¶9. This clearly is the case. See35

Ill. Admin. Code §

725.101(c)(10). Thus, if a “fire, explosion, or release of hazardous waste or hazardous

waste constituents” occurred at a facility that treats all of its hazardous waste in a

WWTU, no contingency plan wou ld be in place. Why does USEPA permit this?

Because, as noted above, even in the case of a release of hazardous waste or hazardous

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waste constituents fro m the WWTU, USEPA has found that “protection o f human healt h

and the environment is ensured by regulation under the CWA rather than RCRA.”

Exhibit O

at p. 2.

This is just as true at a facility that, in addition to managing some hazardous waste

in a WWTU, manages other hazardous waste under different exemptions to the RCRA

per mit requirement. That is, if “protection o f human healt h and the environment is

ensured by regulation under the CWA” in the event of a release of hazardous waste or

hazardous waste constituents from a WWTU at a facility that only manages all of its

hazardous waste in that WWTU, then such protection also is “ensured by regulat ion

under the CWA” where the facility manages some of its hazardous waste in other ways.

Thus, for the reasons stated above, Complainant is incorrect that the contingency

plan requirements apply to WWTUs located at Facilit ies that also manage hazardous

waste by another method.

3.

Flex-N-Gate has not “Waived” Anything

.

Third, Complainant argues at various points in his Response to Flex-N-Gate’s

Motion t o Dismiss that Flex-N-Gate somehow has “waived” its argument, or is

“estopped” from arguing, that its contingency p lan does not apply in the circumsta nces o f

this case. See, e.g.

, Response to Motion to Dismiss, ¶¶13, 22, 25, 31. Flex-N-Gate does

not entirely understand Complainant’s argument, but this argument appears to be based

on Complainant’s misunderstanding of Flex-N-Gate’s posit ion in this case regarding

whether the Facility was required to have a RCRA contingency plan, and Complainant’s

misunderstanding o f the scope of the Facilit y’s “Emergency Response and Contingency

Plan.” As discussed above, Flex-N-Gate has never argued that the Facility is not required

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to have a RCRA contingency plan, only that the Facility’s RCRA contingency plan does

not apply in this case. Also, the Facility’s “Emergency Response and Contingency Plan”

encompasses the Facility’s RCRA “contingency plan,” the Facility’s OSHA “emergency

response plan,” and general guidance regarding the operation of the Facilit y. This should

resolve Complainant’s waiver and estoppel arguments.

3.

Flex-N-Gate is Entitled to Summary Judgment on Counts II

through VI .

Again, to prove vio lat ions of t he contingency plan regulat ions that Complainant

cites in Counts II through VI, Complainant fir st must establish t hat:

1.

the incident at issue does not involve “a wastewater treatment unit

as defined in 35 Ill. Adm. Code 720.110.”

As discussed above, however, the alleged “incident” did involve the Facility’s WWTU.

The Facility has a contingency plan, but that contingency plan does not apply to the

Facility’s WWTU. “If from the papers on file, a plaintiff fails to establish an element of

his cause of action, summary judgment for the defendant is proper.” Gau, thi266

er Ill.

App. 3d at 220, 693 N.E.2d at 999 (citations omitted). (Emphasis added.) Because

Complainant cannot establish the first element of each o f his c laims in Counts II through

VI, the Board must grant summary judgment to Flex-N-Gate on those Counts.

VI.

CREATED AT THE FACILITY IS NOT A MATERIAL ISSUE OF FACT.

Finally, Flex-N-Gate again emphasizes that whether or not uncontained hydrogen

sulfide gas was produced at the Facility on August 5, 2004 is not a “material fact” for

purposes of this Motion. Under the Board’s rules, “[s]ummary judgment is appropriate

when t he pleadings, deposit ions, admissions on file, and affidavit s disclose that there is

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no genuine issue as to any material facant d t he moving party is entit led to judgment as a

matter of law.” Cassens and Sons, In

,

c.PCB

No. 01-102, 2004 Ill. ENV LEXIS 635, at

**11-12 (citations o mitt ed). For purposes of this rule, a fact is “material” if it is

“[]related to the essent ial elements of the cause of action” (S

,

m289

it h

Ill. App. 3d at

1069, 682 N.E.2d at 1254); that is, if it will “affect the outcome of a party’s case.”

Westbank

, 276 Ill. App. 3d at 562, 658 N.E.2d at 1389. Thus, “[f]actual issues which are

not material t o the essent ial elements of the cause of action o r defense, regardless of how

sharply controverted, do not warrant the denial of summary judgment.

” Environmental

Site Developers, Inc.

, PCB No. 96-180, 1997 Ill. ENV LEXIS 649, at **27-28.

(Emphasis added.)

As noted above, Complainant contends that the August 5, 2004, Tank No. 8

piping release created hydrogen sulfide gas. Complaint at ¶15. Flex-N-Gate vehemently

disagrees with this content ion. Regardless, however, for purposes of this Motion, it does

not matter whether Complainant or Flex-N-Gate is .righThtis is because whether or not

uncontained hydrogen sulfide gas was created is not a “material fact

´

;

that fact is not

“[]related to the essent ial elements of [Complainant’s] cause of action” (S

,

m289

it hIll

.

App. 3d at 1069, 682 N.E.2d at 1254) and will not “affect the outcome of

[Complainant’s] case.” Westban

,

k276

Ill. App. 3d at 562, 658 N.E.2d at 1389. This is

because, as discussed above, RCRA does not regulate uncontained gases, and hydrogen

sulfide is not a “hazardous waste constituent.”

Thus, while the question of whether a release of hydrogen sulfide gas occurred at

the Facility may be “sharply controverted” by the parties, as the Board has held,

“[f]actual issues which are not material t o the essent ial elements of the cause o f action o r

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 27, 2005

---

46

defense, regardless of how sharply controverted

, do not warrant the denial of summary

judgment.” Therefore, the Board can grant summary judgment to Flex-N-Gate even if

the parties disagree on this issue.

IV.

CONCLUSION

WHEREFORE, for the reasons stated above, Respondent, FLEX-N-GATE

CORPORATION, respectfully moves the Illinois Pollution Control Board to grant

FLEX-N-GATE CORPORATION summary judgment as to all counts of Complainant’s

Complaint, to enter judgment in favor of FLEX-N-GATE CORPORATION and against

Complainant, and to award FLEX-N-GATE CORPORATION such other relief as the

Illinois Pollution Control Board deems just.

Respectfully submitted,

FLEX-N-GATE CORPORATION

R

e

s

p

o

n

d

e

n

t

,

By:/s/ Thomas G. Safley

One of Its Attorneys

Dated: May 27, 2005

Thomas G. Safley

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

GWST:003/Fil/Motion for Complete Summary Judgment

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 27, 2005