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 PARTIAL SUMMARY JUDGMENT AS TO COUNTS II THROUGH VI OF
COMPLAINANT’S COMPLAINT
, a copy of which is herewith 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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REVISED
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNTS II
THROUGH VI 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 – PMSJ
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB 05-49
)
FLEX -N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
MOTION FOR PARTIAL SUMMARY JUDGMENT
AS TO COUNTS II THROUGH VI OF COMPLAINANT’S COMPLAINT
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex -N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and for its Motion for
Partial
Summary Judgment as to Counts II through VIof Complainant’s C omplaint (“Motion for
Partial Summary Judgment ”), states as follows:
I.
INTRODUCTION
Complainant has filed a six-count Complaint alleging that Flex -N-Gate violated
Illinois statutory and regulatory provisions relating to the management of hazardous
waste. See
Complaint. Counts II through VI of this Complaint allege that Flex -N-Gate
failed to properly implement and take other actions with respect to its “contingency plan ”
for the facility at issue in this case, in response to an alleged release of unconta ined
hydrogen sulfide gas at the facility.
Id.
As discussed below, however, the contingency
plan regulations cited by Complainant in Counts II through VI were not triggered by the
alleged release of hydrogen sulfide gas because uncontained gases do not m eet the
definition of “solid waste ” under the Resource Conservation and Recovery Act
(“RCRA”), 42 U.S .C . §6901, et
seq ., and because this alleged gas did not constitute a
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2
“hazardous waste constituent” under RCRA. See d i s cu s s io n b e low . F, uwhile
rt he rthe
parties disagree as to whether a release of hydrogen sulfide gas occurred, that fact is not
material for purposes of this Motion.
Flex-N-Gate also today is filing a separate Motion for Summary Judgment as to
Count I of Complainant ’s Complaint, and (o n g rounds in addition to the grounds included
in this Motion ) as to Counts II through VI of the Complaint (“Motion for Complete
Summary Judgment”).Because of the length of the arguments in both Motions , and the
fact that many of the facts relevant to the argu ments in the Motion for Complete
Summary Judgment are not relevant to the arguments in this Motion, Flex -N-Gate has
separated the arguments in this Motion into a separate document in an attempt to present
its arguments in both motions more clearly.
As to Counts II through VI, the Illinois
Pollution Control B o ard(“Board”) c an g ra ntFlex -N-Gate summary judgment under
either the arguments set forth in this Motion for Partial Summary Judgment or
t he
arguments set forth in Flex-N-Gate’s separate Motion for Complete Summary Judgment.
II.
BACKGROUND
The facts of this matter which are relevant to this Motion , which, except as
discussed, Flex-N-Gate understands to be undisputed, are as follows:
Flex-N-Gate owns and operates a facility at 601 Guardian Drive in Urban a,
Illinois ( “Facility”). Complaint at ¶3.On August5, 2004, a pipe in the Fa cility that
carries a solution of approximately 93% concentrated sulfuric acid/ 7% water separated at
a fitting, and a small amount of acid drained out from the pipe onto the f loor of a room
inside the Facility. Affidavit of Denny Corbett, attached h ereto asExhibit A
(“Corbett
A f f .),at ¶3. Complainant asserts that this release of sulfuric acid to the floor generated
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uncontained hydrogen sulfide gas. Complaint, at ¶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 is irrelevant.
III.
SUMMARY JUDGMENT STANDARD
Section 101.516(a) of the Board ’s procedural rules provides for the filing of
Motions for Summary Judgment. See
35 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 entitled 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.B d. Nov. 18, 2004) (citingDowd & 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 follows regarding motions for summary judgment:
In ruling on a motion for summary judgment
,
the Boa rd“must consider
the pleadings, depositions, and affidavits strictly against the movant and in
favor of the opposing party. ” Id.
[i.e., Dowd & Dowd, Ltd. , cited above]
Summary judgment “is a drastic means of disposing of litigatio n,” and
therefore it should be granted only when the movant ’s right to the relief
“is clear and free from doubt. ” Id.
, citingPurtill v. Hess , 111 Ill. 2d 299,
240, 489 N.E.2d 867, 871 (1986). However, a party opposing a motion for
summary judgm entma y nortest on its pleadings, but must“present a
factual basis which would arguably entitle [it] to a judgment. ” Ga uthier v.
Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2ndDist 1994).
Cassens
, 2004 Ill. ENV LEXIS at 11-12.
The Illinois SupremeCourt ’s Purtill
decision, which the Board cites in Cassens,
further emphasizes that“use of the summary judgment procedure is to be encouraged as
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an aid in the expeditious disposition of a lawsuit. ” Purtill , 111 Ill.2d at 240, 489 N.E.2d
at 871 (citations omitted). The Supreme Court goes on as follows:
If a party moving for summary judgment supplies facts which, if not
contradicted, would entitle such party to a judgment as a matter of law, the
opposing partycannot rely on his pleadings alone to raise is sues of
material fact. Thus, facts contained in an affidavit in support of a motion
for summary judgment which are not contradicted by counteraffidavit are
admitted and must be taken as true for purposes of the motion.
Id.
(Citations omitted.)
For purposes of a motion for summary judgment, a fact is “material ” if it is
“[]related to the essential elements of the cause of action ” (Smith v. Neumann
, 289 Ill.
App. 3d 1056, 1069, 682 N.E.2d 1245, 1254 (2d Dist. 1997) (citations omitted)); that is,
if it wi ll “affect the outcome of a party’s case.” Westbank v. Maurer, et al.
, 276 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 to the essential elements of the cause of actio n 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.
, P CB
No. 96-180, 1997 Ill. ENV LEXIS 649, at **27-28 (Ill.Pol.Control.Bd. Nov. 20, 9971 ).
Finally, theGauthier
decision cited by the Board in Cassens makes clear that “[i]f
from the papers on file, a plaintiff fails to establish an element of his cause of action,
summary judgment for the defendant is proper. ” Gauthier
, 266 Ill. App. 3d at 220, 693
N.E.2d at 999 (citations omitted).
I V.
UNCONTAINED HYDROGEN SULFIDE GAS ISNOT A “HAZARDOUS
WASTE” OR “HAZARDOUS WASTE CONSTITUENT ” UNDER RCRA.
As discussed below, Counts II through VI of Complaina’s ntComplaint allege
violations of regulations relating to RCRA“contingency plans.” See
discussion below.
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Central to the question of whether Flex -N-Gate could have violated these provisions is
the question of whether uncontained hydrogen sulfide gas constitutes a “hazardous
waste” or a “hazardous waste constituent ” under RCRA. Id.
For the r easons set forth
bel ow, unconta ined drhyogen sulfide gas constitutes neither of these things.
A.
Uncontaine d Hydrogen Sulfide Gas Is Not “Hazardous Waste ” Under
RCRA .
One thing that can trigger a RCRA contingency plan is a release of “hazardous
waste” from a unit that is subject to the RCRA contingency plan requiremes.ntSee
discussion below. As set forth in Flex -N-Gate’s Motion for Complete Summary
Judgment, the RCRA contingency plan requiremedo
ntsnot apply in this case because of
RCRA ’s Wastewater Treatment Unit Exemption. See
Motion for Complete Summary
Judgment. Even if the contingency plan requirement s did apply, however, they could not
have been tr iggered in this ca s(eve en if a release of hydrogen sulfide gas had occurred),
because uncontained hydrogen sulfide gas does not constitute “hazardous waste ” u nder
RCRA.
1.
Uncontained Gases are not
“Solid Waste, ” and therefore are not
“Hazardous Waste,” u nde r R CR. A
Section 721.102(a)(1) of the Board ’s regulations defines “solid waste ” as “any
discarded material that is not excluded by Section 721.104(a) or that is not excluded
pursuant to 35 Ill. Adm. Code 720.130 and 720.131. ” 35 Ill. Admin. Code §
721.102(a)(1). In turn, “[a] solid waste, as defined i n Section 721.102, is a hazardous
waste if” certain things are true. 35 Ill. Admin. Code § 721.103(a)A. ccord
, 35 Ill.
Admin Code § 720.110 (“‘Hazardous waste ’ means a hazardous waste as defined in 35
Ill. Adm. Code 721.103.”)
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“When determining whether material is a ‘waste’” under these definitions, “t he
Board considers federal court interpretations of the definition of
‘solid waste’ under
federal RCRA regulations. ” People v. State Oil Co.
, PCB No . 97-103, 1999 Ill. ENV
LEXIS 391, at *9 (Ill.Pol.Control. Bd. Aug. 19, 1999) (citingR.R. Donnelley & Sons Co.
v. Illinois Environmental Protection Agency
, PCB 88-79, 1989 Ill. ENV LEXIS 530, at
*5 (Ill.Pol.Control.Bd. Feb.
23, 1989)). Accord
, Universal Scrap Metals, Inc. v. Flexi
-
V a n L e as i ng, ., I ncPCB No. 99-149, 2001 Ill. ENV LEXIS 154, at *15
(Ill.Pol.Control.Bd. April 5, 2001).
In this case, “[f]ederal court interpretations of the definition of ‘solid waste’ under
federal RCRA regulations, ” as well the federal RCRA regulations themselves and t he
United State s Environmental Protection Agency’s (“ USEPA”) interpretations of those
regulations, make clear that uncontained gases do not meet the definition of
“solid waste ”
u nde r R CRA . F o r e x ampnleH, elti er v. AK Steel Corp.
, 1997 U.S. Dist. LEXIS 9852
(S.D.Oh. 1997), the United States District Court for the Southern District of Ohio
dismissed a claim that a release of “coke oven gas ” implicated RCRA. Id.
at ***30-32.
In support of its decision, the Court noted: “T he only gaseous substances included in
RCRA ’s definition of ‘solid waste ’ a re‘contained gaseous materials. ’” Id.
at *30. Thus,
the Court held,
in order to be considered a solid waste for RCRA purposes, the gaseous
material must be both discarded and contained
, [and therefore,] the plain
language of 42 U.S.C. § 9603(27) excludes the leaked COG, in its gaseous
form, from the definition of “solid waste ” and, thus, from RCRA ’s
coverage.
Id. (Emphasis added.)
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Likewise, the federal RCRA regulations themselves make clear that uncontained
gases are not “solid wastes” under RCRA. SpecificallyAppendix
,
I to 40 C.F.R. Part 260
provides an “overview” of the RCRA Subtitle C regu lations. In relevant part, Appendix I
states:
[A]ll materials are either: (1) Garbage
[,] refuse, or sludge; (2) solid, liquid,
semi-sol id or contained
gaseous material ; or (3) something else. No
materials in the third category are solid waste .
40 C.F.R. Part 260, App. I. (Emphasis added.)
Uncontained gas is not “[g]arbage[,] refuse, or sludge, ” nor is it “solid, liquid,
semi-solid orcontained”; therefore, uncontained gas
“must fall into the category of
‘something else [,]’ and the regulations clearly state that ‘no materials in the [something
else] category are solid waste. ’” Gallagher v. T.V. Spano Bldg. Corp.
, 805 F. Supp.
1120, 1129 n.7 (D.Del. 1992). Thus, under the plain language of the federal RCRA
regulations, “[t] here can be no dispute tha t nder
[u RCRA, uncontained] gas is not a solid
waste. ” Id.
at 1129.
Significantly, the Board has adopted this Appendix to Part 260o f thefederal
RCRA regulationsas also reflecting Illinois law . Appendix A toP art 7 2 0 o f t he B o’ards
regulations, 35 Ill. Admin. Code Part 720, also is titled “Overview of 40 CFR, Subtitle C
Regulations. ” In this Appendix, the Board states:“See Appendix I o t 40 CFR 260
.” Id.
(Emphasis added.) Thus, the Board al re ad yhas made clear that under Il lino’ isR CR A
regulations, uncontained gases do not meet the definition of “solid waste. ”
Likewise, USEPA in its interpretations of the federal RCRA regulations h asmade
clear that uncontained gases are not “solid wastes” u nde r R CR, Astating: “our authority
to identify or list a waste as hazardous under RCRA is limited to containerized or
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condensed gases (
i.e.,
section 1004(27) of RCRA e xcludes all other ga ses from
e th
definition of solid wastes and thus cannot be considered hazardous wastes ).” Hazardous
Waste Management System: Identification and Listing of Hazardous Waste CERCLA
Hazardous Substance Designation; Reportable Quantity Adjustment , 54 FR 50968, at
50973 (Dec. 11, 1989) . (Emphasis added.)
Finally, analogously, th e Act’s definition of “waste” also includes only “co nt ai ned
gaseous material ”:
“Waste” means any garbage, sludge from a waste treatment plant, water
supply treatment plant, or air pollution control facility or other discarded
material, including solid, liquid, semi -solid, or contained
gaseous material
resulting from industrial, commercial, mining and agricultural operations,
and from community activities, but does not include ….
415 ILCS 5/3.535. (Emphasis added.)
In his Response toFlex-N-Gate ’s Motion to Dismiss (“Response to Motion to
Dismiss”), Complainant argues:
The Board implemented the rulemaking directive of Section 22.4 of the
Act by adopting extensive definitions of the[] terms [ “waste” a nd
“hazardous waste ”] in Part 721. In or der to keep the program“identical in
substance” with the federal program, the definitions in Part 721 control the
scope of the regulatory program.
Response to Motion to Dismiss at 19.
Flex-N-Gate agrees. Illin ois’ RCRA program is“identical in substance ” w it h t he
federal RCRA program. Under that federal program, unconta ined gases are “solidn ot
waste. ” The same is true under Illinois law.
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2.
Complainant’s Arguments that RCRA Regulates Uncontained
Gases are Erro ne o u. s
Flex-N-Gate also noted in its Motion to Dismiss that uncontained gases are not
regulated by RCRA. See
Flex -N-Gate’s Motion to Dismiss. In his Response to Flex -N-
Gate’s Motion to Dismiss, Complainant disagreed . See Response to Motion to Dismi ss.
As set forth below, Complainant ’s arguments are erroneous.
a.
The Fact that Hydrogen Sulfide is Listed in 721.133(f) is
Irrelevant.
Complainant first argues that “[h]ydrogen sulfide is a hazardous waste, listed as
U135 in Part 721. ” Response to Motoi n to Dismiss at 6.35 Ill. Admin. Code §
721.133(f) does state:
The commercial chemical products, manufacturing chemical
intermediates, or off-specification commercial chemical products referred
to in subsections (a) through (d) of this Section, are iden tified as toxic
wastes (T) unless otherwise designated and are subject to the small
quantity exclusion defined in Section 721.105(a) and (g). These wastes
and their corresponding USEPA hazardous waste numbers are the
following:
***
U135
7783-06—4
Hydrogen sulfide
35 Ill. Admin. Code § 721.133(f).
However, this does not mean that all “[ h]ydrogen sulfide is a hazardous waste. ”
First, the listing in Section 721.133(f) includes only
“commercial chemical products,
manufacturing chemical intermediates, o r o ff-specification commercial chemical
products referred to in subsections (a) through (d) of ” Section 721.133. 35 Ill. Admin.
Code § 721.133(f). The alleged hydrogen sulfide gas at issue here does not constitute a
“commercial chemical product[], manufa cturing chemical intermediate[], or off -
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specification commercial chemical product. ” See Board note to Section 721.133(d),
defining these terms.
Second, and more importantly, hydrogen sulfidecannot be hazardous waste under
Section 721.133(f) unless it fi rst is a solid waste
. “[F]or a waste to be classified as
hazardous, it must first qualify as a solid waste under RCRA
.” United States v. Self , 2
F.3d 1071, 1076 (10th Cir. 1993). (Emphasis added; citations omitted. ) Accord
, 35 Ill.
Admin Code § 721.103(a)(2)(B) (“A solid waste, as defined in Section 721.102
, is a
hazardous waste if the following is true . . . ”.) (Emphasis added.) This is just as true of
commercial chemical products and manufacturing chemical intermediates
listed as
hazardous in Section 721.133 as it is of any other material. See
id. (defining all
hazardous waste – including wastes listed in Section 721.133 – as “solid waste” of which
certain things are true); USEPA RCRA Hotline Questions and Answers, May 1995,
1.
Solid Waste Determina tion for Spilled Commercial Chemical Products , No.
9441.1995(20), Faxback 13743 (attached hereto as Exhibit B)
(discussing how spilled
commercial chemical products sometimes are, and sometimes are not,
“solid waste” for
purposes of RCRA, and how – o nly w hen they constitute “solid waste” – they must be
“managed in accordance with a ll applicable RCRA standards ”).
Obviously, if a company purchased compressed, liquefied hydrogen sulfide for
use in a production process, (1) that hydrogen sulfide would not meet t he definition of
“solid waste, ” because would not be “discarded, ” a nd(2) because it is not“solid waste,”
it could not be considered “hazardous waste. ” See
id. Likewise, the alleged hydrogen
sulfide gas a t issue here does n ot meet
the definition of “sol id waste,” because it was
unco nta ined. As discussed above, USEPA has held that“RCRA excludes all other gases
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[i.e., gases other than contained gases] from the definition of solid wastes and t hus c a nno t
be considered hazardous wastes. ” Hazardous Waste Ma nagement System , 54 FR 50968,
at 50973. (Emphasis added.) Therefore , the fact that“hydrogen sulfide ” is listed in
Section 721.133(f) is irrelevant. Because uncontained gases are not
“solid wastes,” they
cannot be “hazardous wastes, ” under Section 721.1 33(f) or otherwise.
b.
The Authority that Flex -N-Gate Cites is Directly
Applicable to this Case.
Complainant next argues that “the cases cited by ” Flex-N-Gate to illustrate that
RCRA does not regulate uncontained gases are distinguishable because they “involve
attempts to extend the RCRA rules to ‘gaseous process emissions ’ o n t he g ro und s t ha t t he
emissions are‘hazardous waste. ’” Response to Motion to Dismiss, ¶21. Complainant
goes on:
Complainant is not contending that this facility should be regulate d under
RCRA because of gaseous process emissions. The facility was already
subject to RCRA for reasons unrelated to this incident. The owner or
operator was therefore required to prepare a contingency plan for the
facility, and to follow that plan in th
e event of accidental release of toxic
gas from hazardous waste.
a.
Respondent cites Helter v. AK Steel, 1997 U.S. District
LEXIS 9852 (S.D. Ohio 1997), an unreported trial court
decision. That case involved a leak of coke oven gas
(“COG”) from a pipe which was carr ying the ga s for use as
a fuel:
“Plaintiffs do not contend that the COG in Defendant ’s
pipes is solid waste. That COG has not been discarded and
the pipelines do not constitute a means of disposal. ”
b.
The plaintiff in that case argued that RCR A applied
because the gas became a waste at the point at which it
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leaked. This case is different in that the gas was generated
from a hazardous waste in a handling accident.
Id.
First, Flex -N-Gate simply disagrees with Complainant ’s argument that a fa cility
owner or operator is “required . . . to follow [a contingency] plan in the event of
accidental release of toxic gas
from hazardous waste. ” Complainant cites no authority to
support this argument, and Flex -N-Gate is unaware of any such authority. atRhe r , t he
Board ’s regulations make clear that “[t]he provisions of [a contingency] plan must be
carried out ” only in the event of “a fire, explosion or release of hazardous waste or
hazardous waste constituents .” 35 Ill. Admin. Code § 725.151(b). (Empha sis added.)
Section 725.151(b) does not
state:
The provisions of the plan must be carried out immediately whenever
there is a fire, explosion or release of hazardous waste or hazardous waste
constituents or toxic gas from hazardous waste
which could thretena
human health or the environment.
Second, Complainant ’s attempt to distinguish the authorities that Flex -N-Gate
cites is unavailing. The fact that in Helter v. AK Steel
, “[t]he plaintiff . . . argued that
RCRA applied because the gas became a waste a t the point at which it leaked, ” while in
this case, allegedly, “gas was generated from a hazardous waste in a handling accident ,”
is a distinction without a difference. In Helter
, the question before the Court was whether
coke oven gas ( “C OG”) “that wasreleased from [a] faulty pipe near Plaintiffs ’ residences
in January 1996 was not a hazardous waste or a solid waste as those terms are employed
in the RCRA citizen suit provision. ” 1997 U.S. Dist. LEXIS 9852, at *29. The Court
held that t he C OG was not a “solid waste,” stating:
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The definitional section, § 9603(27), includes only contained gaseous
materials that have been discarded. In other words, in order to be
considered a solid waste for RCRA purposes, the gaseous material must be
both discarded and conta ined
.
Id.
at *31. (Emphasis added.)
The Court further emphasized that while“[d]iscarded liquids are defined as solid
waste . . . [d]iscarded gases are not so defined, unless they are‘contained
.’” Id. at **31 -
32. (Emphasis added.) Thus, the Co urt stated:
The Court finds no authority for Plaintiff’ sposition that the COG that
leaked, in its ga seous form, from Defenda’s ntpipe near Plaintiffs ’
residences in January 1996 was contained at the time when it became
“discarded. ” Absent such authority,the Court concludes that the plain
language of 42 U.S.C. § 9603(27) excludes the leaked COG, in its gaseous
form, from the definition of “solid waste ” and, thus, from RCRA ’s
coverage.
Id. at *32.
The Helter
Court ’s holding had nothing to do with ho w t he gas at issue was
generated . R at he r, he
t Court’s holding wa s based on whether the gas at issue wa s or was
not “contained. ” That is the same issue before the Board – does the uncontained
hydrogen sulfide gas that allegedly was present at the Facility meet t he RCRA definition
of “solid waste ”?
1
Likewise, in Hazardous Waste Management System
, 54 FR 50968, at 50973
(Dec. 11, 1989), USEPA also relied solely on the definition of
“solid waste” u nder
1
The fact that Helter
is an “unreported trial court decision” (Response to Motion to
Dismiss, ¶21(a)) is irrelevant. The Board’s decisions also are
“unreported,” except
through the Board’s Internet site or, likeHelter
, through Lexis and Westlaw, and the
Board (and Illinois Courts) rely on Board decisions. Further, the Board has relied on
“unreported trial court decisions” in the past. See, e.g.
, Saline County Landfill, Inc., v.
Illinois EPA, et al, No. 04-117, 2004 Ill. ENV LEXIS 255(Ill.Pol.Control.Bd. May 6,
2004) (citing Monfardini v. Quinlan
, 2004 Westlaw 533132 (N.D.Ill. Mar. 15, 2004).
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RCRA to find that“its authority to identify or list a waste ahas zardous under RCRA is
limited to containerized or condensed gases (
i.e.,
section 1004(27) of RCRA excludes all
other gases from the definition of solid wastes and thus cannot be considered hazardous
wastes).” Id.
This decision was not premised on t he source of the gas at issue.
Third, these statements of law are by no means isolated, but merely are examples.
Other authorities also have made clear that RCRA does not re gulate uncontained gases.
See, e.g.
, United States v. Sims Bros. Constr., Inc.
, 277 F.3d 734, 740 (5th Cir. 2001)
(“For gaseous material to be ‘solid waste’ [under RCRA] it must b
‘
econtained. ’”);
Gallagher
, 805 F. Supp. at 1129 and n.7 (“There can be no dispute that [under RCRA,
uncontained] methane gas is not a solid waste. ”).
Fourth,as noted above, the Board already has adopted this position
in Appendix
A to Part 720 of the Board’s regulations, which incorporates Appendix I to 40 CFR Part
260. See
35 Ill. Admin. Code Part 720, App. A.
Fift h,in contrast to Complainant ’s argument at Paragraph 21 of his Response to
Motion to Dismiss, USEPA has made clear that uncontained gas is not solid waste under
R CRA even if the gas is “generated from a hazardous waste
.” Specifically, USEPA has
found that “[n]oncontainerized gases emitted from haz ardous wastes
are not themselves
hazardous waste because the RCRA statute implicitly excludes them. ” Hazardous Waste
TSDF – Technical Guidance Document for RCRA Air Emission Standards for Process
Vents and Equipment Leaks , EPA-450/3-89-021, at p. 2-3 (USE PA July 1990), relevant
portions of which are attached hereto as Exhibit C
(this document is available from the
library at Illinois EPA ’s headquarters in Springfield, Illinois). (Emphasis added.) Thus,
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again, despite Complainant ’s argument to the contrar y, this case is not“different in that
the [alleged] gas was generated from a hazardous waste. ”
The bottom line is that uncontained gases do not meet the definition of
“solid
waste” under RCRA, no matter how the gases are generated. The authorities which
provide that uncontained gases are not “solid waste” – i nc lu d i ng t he B o’s aApperd ndix A
to Part 720– are not distinguishable. The question those authorities faced was the same
question now be fo re the B o ard n ithis case: is uncontained gas regulated by RCRA? In
all cases, including this one, the answer is “no. ”
c.
Complainant ’s Policy Arguments are Misdirected.
Complainant also argues that the fact that RCRA does not regulate uncontained
gases is bad policy. Specifically, Complainant argues:
By arguing that the contingency plan requirements do not apply to spills
that result in releases of un -contained gases, respondent is advancing an
absurd argument that would render a large portion of contingency
planning meaningless. Respondent is contending th at RCRA facilities
handling reactive waste would never have to plan for a hydrogen cyanide
or hydrogen sulfide release incident, since these releases would never be
“contained.” One of the main purposes of the RCRA program was to
protect workers and the e nvironment from toxic gas relea ses caused by
accidents involving the handling of reactive waste capable of releasing
hydrogen cyanide or hydrogen sulfide.
Response to Motion to Dismiss, ¶ 20.
Complainant cites no authority to support this argument.
See
id.
This type of argument might be appropriate before the legislature, or potentially
in a rulemaking before the Board, but it is misdirected in an enforcement action.
The p rim a ryrule of statutory [and hence regulatory] construction is to
ascertain and e ffectuate the legislature ’s [or agency’s] intent. The initial
source for determining legislative [or agency] intent is the
plain meaning
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of the language used, and whereunambiguous, the plain meaning of the
language controls.
Color Communications, Inc. v . Illinois EPA
, No. 96-125, 1996 Ill. ENV LEXIS 599, at
*3 (Ill.Pol.Control.Bd. July 18, 1996). (Citations omitted.)
Thus, “a court [or agency]
may not alter that meaning beyond the clear import of the language employed therein. ”
Continental Grain Co. v
. IPCB
, 475 N.E.2d 1362, 1363 (Ill. App. 5th Dist. 1985)
(reversing the Board where the Court found that the Board
’s “interpretation of its . . .
Rul es . . . w o ul d req ui re [ t he co urt] t o ig noplainre t helanguage of those rules. ”) That is,
the Board may n ot “ignore . . . the plain meaning of [its] rules and, in effect, amend them
through construction rather than the usual rulemaking procedures ”; rather , w he r“ethe
language utilized” in a Board regulation is clear, that language can be changed o nly“by
prop er amendment of the rules. In the interim,the PCB is bound to follow the rules as
stated.” Id.
Here, the language of the Board
’s regulations is clear: as under federal law, in
Illinois, contingency plans apply only in the event of “a fire, explosion or release of
hazardous waste or hazardous waste constituents which could threaten human health or
the environment. ” 35 Ill. Admin. Code § 725.151(b); 40 C.F.R. § 265.51(b). If one of
these four things does not occur,a contingency plan is not triggered. The Board ’s
regulations are clear on this, and the Board “is bound to follow the rules as stated. ”
Thus, if someone hitshis thumb with a hammer, or chokes on a sandwich, or falls
off a ladder – or even if a drum of hazardous wte
asfalls over on someone ’s foot, but the
drum stays intact – a facility’s RCRA contingency plan simply does not apply, because
no “f ire” or “explosion ” or “release of hazardous waste ” or “release of hazardous waste
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constituents ” occurred. Likewise, if a release of hazardous waste o ccurs to land, the
Clean Water Act does not apply;if a release of oil occurs to water, the Clean Air Act
does not apply; f i a release of particulate matter occurs to air, RCRA does not apply.
Each statute has a universe of situations to which it applies and a universe of situations to
which it does not apply. Complainant may think it is “absurd ” t ha t R CR’As universe
does not include uncontained gases, but it simply does not, any more than RCRA
contingency pla ns regula thamme
ers or sandwiches or la ddeorsr falling containers of
hazardous waste that do not break . If Complainant can convince Congress to rewrite
RCRA, that is fine, but, until then, t“heauthority to identify or list a waste as hazardous
under RCRA is limited to containerized or condensed gas es.” Hazardous Waste
Management System , 54 FR 50968, at 50973 (Dec. 11, 1989). Accord , 35 Ill. Admin.
Code Part 720, Appendix A.
3.
Uncontained Gases Do Not Meet The Definition Of “Solid Waste”
Or “Hazardous Waste. ”
Thus, for all of the reasons stated above, under federal law and Illinois law, (1)
uncontained gases do not meet the definition of “solid waste ” und e r R CRA , a nd (2)
because they do not meet the definition of “solid waste,” they cannot be “hazardous
waste” under RCRA. As discussed below, in light of this fact, t he B o ard s ho u ld g ra nt
Flex -N-Gate summary judgment on Counts II through VI of Complainant ’s Complaint.
B.
Uncontained Hydrogen Sulfide Gas Also Is Not A “Hazardous Waste
Constituent ” Under RCRA.
A RCRA contingency plan also can be tggeri red by a release of a“hazardous
waste constituent ” from a unit that is subject to the RCRA contingency plan
re q u i re mes.ntSee
discu ss io n b e low . gain,A the RCRA contingency plan requirements
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do not apply in this case because of RCRA ’s Wastewater Treat ment Unit Exemption.
See Motion for Complete Summary Judgment. And, Flex-N-Gate disputes that a release
of hydrogen sulfide occurred. Regardless, however, e ven if the contingency plan
requirements did apply, and even if a release of hydrogen sulfide had occurred, the
contingency pla n requirementswere not triggered in this case because uncontained
hydrogen sulfide gas does n ot constitute a “hazardous waste constituent ” under RCRA.
1.
Hydrogen Sulfide Is Not A“Hazardous Waste Constituent ”
Because It Did Not “Cause Hazardous Waste To Be Listed .”
The Board defines the term“hazardous waste constituent ” as “a constituent that
caused the hazardous waste to be listed in 35 Ill. Adm. Code 721.Subpart D, or a
constituent listed in 35 Ill. Adm. Code 721.124. ” 35 Ill. Admin. Code § 720.110.
Hydrogen sulfide clearly is not “a constituent listed in 35 Ill. Adm. Code 721.124. ” See
35 Ill. Admin. Code § 721.124. Thus, the alleged uncontained hydrogen sulfide gas at
i s s ue he re can b e “haa zardous waste constituent ” onl y if it“caused t he hazardous waste ”
at issue “to be listed in 35 Ill. Adm. Code 721.Subpart D. ”
According to Complainant, “the hazardous waste ” at issue, from which hydrogen
sulfide gas allegedly was emitted at the Facility , is “[t]he spillage on the floor” of the
Facility, which Complainant argues constitutes “D003, ‘reactive waste.’” Complaint, ¶¶
7, 17;Response to Motion to Dismiss, ¶ ¶ 1, 17. Solid waste that is characteristically
“reactive” is given the designation D003. See
35 Ill. Admin. Code § 721.123(b).
However, “D003 waste” is not “listed in 35 Ill. Adm. Code 721.Subpart D.” Rather,
“D003” is the designation given to characteristically reactive waste in 35 Ill. Admin.
Code § 721.123, which is located in Subpart C
of Part 721.
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Thus, neither hydrogen sulfide nor anything else has “caused [D003 reactive
waste] to be listed in 35 Ill. Adm. Code 721.Subpart ” Dfor purposes of the definition of
“hazardous waste constituent” in 35 Ill. Admin. Code § 720.110. Therefore, by
definition, any subst ance emitted from D003 waste cannot be a “hazardous waste
constituent,” because D003 is not “listed in . . . Subpart D.” Further, even if D003 waste
was “listed in . . . Subpart D,” hydrogen sulfide is not listed in Appendix G to Part 721 as
having caused any hazardous waste to be listed. Thus, hydrogen sulfide is not a
“hazardous waste constituent. ”
2.
The Fact That Hydrogen Sulfide Is Listed In Appendix H o TPart
721 Is Irrelevant .
In response to Flex -N-Gate’s Motion to Dismiss, Complainant argues that
“[h]ydrogen sulfide is a hazardous constituent listed in Appendix H of Part 721. ”
Response to Motion to Dismiss at 6. Appendix H of Part 721 is titled:
“Hazardous
Constituents. ” See
35 Ill. Admin. Code Part 721, Appendix H.As set forth below, this si
irrelevant.
Complainant apparently contends that because hydrogen sulfide is included in the
Appendix H list of “hazardous constituents,” it meets the definition of “hazardous waste
constituent.” See
Response to Motion to Dismiss at 6. The problem with
this argument
is that Complainant confuses the RCRA term “hazardous constituent ” with the RCRA
t erm“hazardous waste
constituent.” That is, Complainant apparently argues that when
the definition of “hazardous waste constituent ” refers to“a constituent that caused the
hazardous waste to be listed in 35 Ill. Adm. Code 721.Subpart D, ” it is re ferri ng to t he
substances listed in Appendix H
to P ar t 7 21“H
, azardous Constituents. ” As discussed
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below, however, this is not the case . In fact, the phrase “a const ituent that caused the
hazardous waste to be listed in 35 Ill. Adm. Code 721.Subpart D ,” in the definition of
“hazardous waste constituent ,” r efers toAppendix G
to Part 721,“Basis for Listing
Waste.”
a.
“Hazardous Constituents” and “Hazardous Waste
Const ituents” are Different Things.
First, despite their similar names, under RCR“A,hazardous constituents ” a nd
“hazardous waste
constituents” are different things. See, e.g., In the Matter of: Be ezer
East, Inc. and Koppers Indus., Inc., Permit No
. KYD 006 383 392, No. 91-25, 1993 EPA
App. LEXIS 12, at *9, 4 E.A.D. 536 (USEPA Env. App. Bd. Mar. 18, 1993) “(T he
pr incipa l problem we have with this argument is that Beazer does not provide any
citations to the permit or the record to support its belief that the
re is a permit term
obligating it to monitor “hazardous waste constituents, ” as opposed to monitoring
“hazardous constituents.”) (Emphasis added.)
As noted above, “hazardous waste
constituents,” in addition to being those
constituents listed in 35 Ill. Admin. Code § 721.124, are “constituent[s] that caused
. . .
hazardous waste to be listed
in 35 Ill. Adm. Code 721.Subpart D.” 35 Ill. Admin. Code §
720.110. (Emphasis added.)On the other hand, USEPA has explained the meaning of
the term “hazardous const ituents,” and the purpose of Appendix VIII to 40 C.F.R. Part
261 (which is equivalent to Appendix H of Part 721 of Illinois ’ rules), as follows:
The Appendix VIII list is actually a composite of several other lists. It
includes chemicals identified as priority pollutants under the Clean Water
Act, chemicals identified by the Department of Transportation as
hazardous to transport, chemicals for which EPA ’s Carcinogen
Assessment Group ( CAG) has laboratory evidence of carcinogenicity, and
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chemicals which the N IOSH Registry of Toxic Effects of Chemical
Substances lists as having high acute toxicity (numerically low LD[50]).
The principal purpose of the list is todefine a universe of chemicals of
concern. Wastes would be matched against the list to see if they
contained
any chemicals from this universe. If so, they would beconsidered for
listing as “hazardous.”
List (Phase I) of Hazardous Constituents for Ground -Water Monitoring, 52 FR 25942
(USEPA July 9, 1987). (Emphasis added.)
USEPA also noted in a June 1989 RCRA/Superfund Hotline Monthly Summary
regarding Appendix VIII, “Hazardous Constituents, ” t h at :
Owners/operators of RCRA facilities use Appendix VIII for hazardous
waste analysis before incineration (Section 264.340) [, and that] . . . .
EPA’s originalregula tions for ground-water monitoring at permitted
land disposal facilities required owners and operators, under some
circumstances, to analyze samples of groundwater for all constituents
listed on Appendix VIII.
USEPA RCRA/Superfund Hotline Monthly Sum mary, No. 9445.1989(01), Faxback
13290 (USEPA June 1989), attached hereto as Exhibit
D, at 1-2. (Emphasis added.)
Thus, “hazardous constituents” – listed in Appendix H– a re“chemicals of
concern, ” which (1) are monitored for in certain circumstances suc h as incineration and,
formerly, groundwater monitoring, and (2) the presence of which might cause USEPA t o
“consider[] ” listing a solid wa ste a“shazardous wa ste” in the future
. “Hazardous waste
constituents, ” on the other hand, are those constituents “that caused . . . hazardous waste
to be listed”
in the past. That is, USEPA looks at “hazardous constituents” w he n
considering whether to list a solid waste as“hazardous waste,” and, if USEPA determines
that a solid waste should be listed as “hazardous waste,” the constituents it relied on to
make such determination are considered “hazardous waste
constituents. ” T hus , ag ai n,
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“hazardous constituents” a nd“hazardous waste constituents,” are different things.I n t he
Matter of: Beezer East, Inc. , 1993 EPA App. LEXIS 12, at *9.
b.
“Hazardous Waste Constituents” Are Listed In Appendix G
To Part 721, Not Appendix H to Part 721.
Second, “hazardous waste constituents
. . . are . . . listed in 40 C.F.R. Part 261,
Appendix VII,” In the Matter of Michigan Waste Sys t ems, Inc, .No. RCRA -V-W-84-R-
054, 1991 EPA ALJ LEXIS 18, at *92 (USEPA ALJ Sept. 30, 1991) (emphasis added),
that is, in Appendix G to Illinois ’ Rules. (Appendix VII in the federal rules in equivalent
to Appendix G. Compare
40 C.F.R. Part 261, AppendixV IIto 35 Ill. Admin. Code Part
721, Appendix G.) Thus, in a later opinion in tMichhe igan Waste Systems
c as e, t he
USEPA Office of Administrative Law Judges ( “ALJs”) ordered the respondent to, among
other things :
specify, by chemical names, the entire set of hazardous wastes and
hazardous waste constituents
in the facility, including each constituent
listed in Table 1 of 40 C.F.R. section 261.21 and, for each hazardous
waste listed in 40 C.F.R. section 261.31 or section 261.32, that hasbeen
disposed of in the landfill, the corresponding constituents listed in
Appendix VII to 40 C.F.R. Part 261.
1997 EPA ALJ LEXIS 61, at **42-43 (USEPA ALJ March 21, 1997). (Emphasis
added.)
And, in In the Matter of Koppers Company, Inc.
, the USEPA Office of ALJs
stated:
Moreover, and although the background document for creosote production
(Exh A-1), supports Respondent ’s position that thehazardous waste
constituents of creosote are benz(a)anthracene, benzo(b)fluoranthene and
benzo(a)pyr ene, other chemicals such as chrynese
, naphthalene and
acenaphthaleneare listed
under pentachlorophenol
in 40 CFR 261,
Appendix VII, Basis For Listing Hazardous Waste. Accordingly, there
may be other hazardous waste constituents
of Respondent ’s sludges.
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USEPA No. RCRA-III-012, 1983 EPA ALJ LEXIS 14, at *21 (USEPA ALJ June 21,
1983) (emphasis added).
3.
Uncontained Gases Do not Meet the Definition of
“Solid Waste ”
Or “Hazardous Waste. ”
As the above makes clear, “hazardous constituents” and “hazardous waste
constituents” are different thing s, and thus, the fact that hydrogen sulfide is listed as a
“hazardous constituent” in Appendix H to Part 721 is irrelevant. Hydrogen sulfide is not
listed in Section 721.124, or in AppendixG
to Part 721. Therefore, hydrogen sulfide is
not a “hazardous waste
constituent” for purposes of RCRA. As discussed below, the
Board therefore should grant Flex -N-Gate summary judgment on Counts II through VI of
Complainant’s Complaint.
V.
ANALYSIS
In light of the above, the Board should grant summary judgment to Fle x-N-Gate
on Counts II through VIof Complainant ’s Complaint.
A.
Flex-N-Gate is Entitled to Summary Judgment on Counts II and VI–
35 Ill. Admin. Code § 725.151(b) .
Counts II and VI of Complainant ’s Complaint a ssert that Fle-Nx-Gate violated 35
Ill. Admin. Code § 725.151(b) by“utterly fail[ing] to carry out the contingency plan in
response to” the alleged release of hydrogen sulfide, and by “f ai l[ ing ] to c a rry o u t t he
plan in response to th[e] spill ” of sulfuric acid, respectively. Complaint, Counts II, V I.
Flex -N-Gate disagrees.
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1.
Complainant Cannot Prove All Of The Elements Of His Claims In
Counts II and VI.
Section 725.151(b) states:
The provisions of the [contingency] plan must be carried out immediately
whenever there is a fire, explosion or relea
se of hazardous waste or
hazardous waste constituents which could threaten human health or the
environment.
35 Ill. Admin. Code § 725.151(b).
As discussed in Flex-N-Gate’s Motion for Complete Summary Judgment
2
, to
prove a violation of Section 725.151(b), Complainant must prove the following four
elements:
1.
that the incident at issue does not involve “a wastewater treatment
unit as defined in 35 Ill. Adm. Code 720.110 ”;
2.
that “a fire, explosion or release of hazardous waste or hazardous
waste constitue nts” occurred;
3.
That such “fire, explosion or release . . . could threaten human
health or the environment
”; and,
4.
that Flex-N-Gate did not “immediately” carry out“[t]he provisions
of the [contingency] plan. ”
35 Ill. Admin. Code §§ 725.101(c)(10), 725.151(b).
Complainant cannot prove the second element of this test , i.e., that“a fire,
explosion or release of hazardous waste or hazardous waste constituents ”
occurred. 35 Ill. Admin. Code § 725.151(b).
2
Flex -N-Gate argues in its Motion for Complete Summary Judgment that the first
element of this claim (and Complainant’s claims in Counts III, IV, and V) exists because
Part 725 of the Board’s regulations, including Section 725.151(b), “do[es] not apply to . .
. . [t]he owner or operator of an elementary neutr alization unit or a wastewater treatment
unit as defined in 35 Ill. Adm. Code 720.110.” 35 Ill. Admin. Code
§ 725.101(c)(10).
Flex -N-Gate also argues that Complainant cannot prove this first element.
See
Motion
for Complete Summary Judgment.
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a.
No “F ire” Occurred.
One wa y t hat a compla it nancan establish the second element of a cla im under
Section 725.151(b) is to prove that “a f i re” occurred. Here, however, Complainant does
not allege that any fire occurred at the Facility on August 5, 2004. See
Complaint. And,
in fact, there was no fir e. Corbett Aff . at ¶4. Thus, Complainant cannot rely on a fire
having occurred to establish the second element of his claim under Section 725.151(b).
b.
No “Explosion ” Occurred
.
The second way that a complainant can establish the second element of a clai m
under Section 725.151(b) is to prove that “an explosion ” occurred. However,
Complainant also does not allege that any explosion occurred at the Facility on August 5,
2004. See
Complaint. And, there was no explosion.Corbett Aff. at ¶5. Thus,
Complai nant also cannot rely on a explosion having occurred to establish the second
element of his claim under Section 725.151(b).
c.
No “Release of Hazardous Waste ” Occurred
.
The third way that a complainant can establish the second element of a claim
under Sec tion 725.151(b) is to prove that “arelease of hazardous waste ” occurred. In
Count VI, Complainant does not allege that any release of hazardous waste occurred.
See
Complaint, Count VI. In Count II,however,Complainant does allege that there was a
“there [was a] release of hazardous waste ”; specifically, Complainant alleges that
u nco nt ai ned“hydrogen sulfide gas” was emitted (Complaint at 2, ¶15), and that “[t]he
hydrogen sulfide emission was a release of hazardous waste
. . . within the meaning of
Sect ion 725.151(b.)” Id. at 5, ¶2. (Emphasis added.) Accord , Complainant ’s Response
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to Motion to Dismiss at 8, ¶ 15 “Hy( drogen sulfide is a hazardous waste, listed as U135
in Part 721.”)
As discussed above, however, uncontained gases do not meet the definitions of
“solid waste” or “hazardous waste ” under RCRA, and the fa ct that hydrogen sulfide is
“listed as U135 in Part 721” is irrelevant. See
discussion above. Therefore, even if a
release of uncontained hydrogen sulfide gas had occurred (which Flex
-N-Gate disputes),
such a release, by definition , could not (as Complainant argues ) constitute “a release of
hazardous waste . . . within the meaning of Section 725.151(b). ”
It is important to note that whether uncontained gases constitute
“hazardous
waste” for purposes of Section 725. 151(b) is a question of law for the Board, not a
question of fact. In re Storment
, 203 Ill. 2d 378, 390, 786 N.E.2d 963, 970 (Ill. 2002).
(“T heconstruction of arule
,
like a statute, is also aquestion of law .”) (Citation omitted.)
Accord
, Panhandle Eastern Pipe Line Co. , 314 Ill. App. 3d at 300, 734 N.E.2d at 21
(“The issues raised on appeal relate to interpretation of statutes and administrative rules;
interpretation of a statute is a question of law
;
construction of administr ative rules a nd
regulations is governed by the same standard asconstruction of statutes.”) (Citations
omitted.) Section 720.110 defines “hazardous waste ” as follows:
When used in 35 Ill. Adm. Code 720 through 726 and 728 only, the
following terms have the meanings given below:
***
“Hazardous waste” means a hazardous waste as defined in 35 Ill. Adm.
Code 721.103.
35 Ill. Adm. Code § 720.110.
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Section 721.103(a) states: “A solid waste, as defined in Section 721.102, is a
hazardous waste if” certain th ings are true. 35 Ill. Admin. Code § 721.103(a). And,
“solid waste ” m ea ns“any discarded material that is not excluded by Section 721.104(a)
or that is not excluded pursuant to 35 Ill. Adm. Code 720.130 and 720.131” 35
. Ill.
Admin. Code § 721.102(a)(1).
To determine whether uncontained gases are regulated by Illinois
’ RCRA
regulations, the Board must construe the definition of
“solid waste ” contained in Section
721.102. Above, Flex -N-Gate has set forth authority thatthis definition of “solid waste ”
does not encompass uncontained gases. See, e.g.
, Helter , 1997 U.S. Dist. LEXIS 9852, at
**30-32; Hazardous Waste Management System
, 54 FR 50968, at 50973; 415 ILCS
5/3.535. Complainant apparently disagrees, arguing in his Complaint that
“[t]he [alleged]
hydrogen sulfide emission was a release of hazardous waste
. . . within the meaning of
Section 725.151(b) .” Complaint at 5, ¶2. (Emphasis added.) It is clear that this is a
dispute about a question of law
, as it involves onl y the construction by the Booardf t he
definition of “solid waste ” in Section 721.102. The parties may disagree on this question
of law; however, this legal disagreement does not preclude the Board granting summary
judgment to Flex -N-Gate. As discussed above, only “genuine issue[s] as to any material
fact”
preclude the grant of a summary judgment. Cassens and Sons, Inc, .2004 Ill. ENV
LEXIS 635, at **11-12; 35 Ill. Admin. Code § 101.516(b). (Emphasis added.)
It also is important to note that, for purposes of this Motion, it does not matter
whether or not a release of hydrogen sulfide gas actually occurred at the Facility . A gai n,
Flex -N-Gate disputes that such a release occurr ed. Regardless, however, whether or not a
release of hydrogen sulfide gas occurred at the Facility is not a
“material fact,” because it
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is not “[]related to the essential elements of” Complainant’s “cause of action ” (Smith ,
289 Ill. App. 3d at 1069, 682 N.E.2d at 1254) and will not“affect the outcome of
[Complainant’s] case.” Westbank
, 276 Ill. App. 3d at 562,658 N.E.2d at 1389. This is
because, as just discussed, uncontained gases are not
“solid waste ” for purposes of
Illinois’ RCRA r egulations. Thus,
•
to establish the second essential element of his claim under Section
725.151(b), Complainant must prove that that “a fire, explosion or
release of hazardous waste or hazardous waste constituents ”
occurred ;
•
if the Board decides that Illinois ’ RCRA regulations do not
regulate uncontained gases as solid waste (and thus, do not
regulate uncontained gases as hazardous waste), then whether a
release of uncontained gases occurred at the Facility is irrelevant to
this question;
•
this is because, even if such a release had occurred, it would not
constitute a release of “hazardous waste. ”
By analogy, if Complainant argued that he hit his thumb with a hammer while
working at the Facility, and that the Facility should have invoked its RCRA contingency
plan in responding to his injury, the hammer would not “behazardous waste, ” if, for no
other reason, becaus e it is not “discarded ” and thus is not
“solid waste.” See
35 Ill.
Admin. Code § 721.102. Thus, Flex-N-Gate would not have violated Section 725.151(b)
by not invoking its contingency plan in response to Complainant hitting his thumb with a
hammer, as no “fire, explosion or release of hazardous waste or hazardous waste
constituents ” occurred. Therefore , even if Flex-N-Gate argued that Complainant did not
in fact hit his thumb with a hammer, and the parties disagreed as to that fact, Flex
-N-Gate
still woul d be entitled to summary judgment on a claim that it violated Section
725.151(b).
Deleted :
at the Facility
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Thus, an argument over whether Complainant actually hit is thumb with a
hammer – like an argument over whether a release of uncontained hydrogen sulfide gas
occurred – is irrelevant to the question of whether a “release ofhazardous
waste”
occurred, because neither a hammer nor uncontained gas constitutes hazardous waste for
purposes of Illinois ’ RCRA regulations. Therefore, Complainant cannot prove the
second element of is c laim under Section 725.151(b) – that “a fire, explosion or release of
hazardous waste or hazardous waste constituents ” occurr ed– by pointing to an alleged
release of uncontained gas.
For the reasons stated above, the alleged release of uncontained hydroge n sulfide
gas does not constitute a release of “hazardous waste .” Therefore, Complainant cannot
rely on a release of “hazardous waste” having occurred to establish the second element of
his claims under Section 725.151(b) in Counts II and VI of his Compla int.
d.
No “Release of . . . Hazardous Waste Constituents ”
Occurred .
Finally, the fourth way that a complainant can establish the second element of a
claim under Section 725.151(b) is to prove that a “release of . . . hazardous waste
constituents” occurre d. In Count VI, Complainant does not allege that any release of
hazardous waste constituents occurred. See
Complaint, Count VI. In Count II, however,
Complainant alleges that uncontained “hydrogen sulfide gas” was emitted (Complaint at
2 , ¶ 1 5 ), a nd t “h[tat]he hydrogen sulfide emission was a release of
. . . hazardous waste
constituents . . . within the meaning of Secti on 725.151.”(bId.
) at 5, ¶2. (Emphasis
added.) Accord
, Complainant’s Response to Motion to Dismiss at 6, ¶16 (“Hydrogen
sulfide is a hazardous constituent listed in Appendix H of Part 721.”)
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As discussed above, however, uncontained hydrogen sulfide gas does not
constitute a “hazardous waste constituent” under RCRA, and the fact that hydrogen
sulfide is “listed in Appendix H of Part 721” is irreleva nt.See
discussion above.
Therefore, even if a release of uncontained hydrogen sulfide gas had occurred (which
Flex -N-Gate disputes), such a release by definition could not, as Complainant argues,
constitute “a release of . . . hazardous wast e constituents . . . within the meaning of
Section 725.151(b).”
Finally, for the reasons discussed above, the question of whether hydrogen sulfide
gas constitutes a “hazardous waste constituent” is a question of law for the Board, and the
question of wheth er hydrogen sulfide gas was emitted is not material to this Motion.
For the reasons stated above, hydrogen sulfide is not a “hazardous waste
constituent” for purposes of RCRA . Therefore, Complainant cannot rely on an alleged
release of “hazardous waste co
nstituents” having occurred to establish the second
element of his claims under Section 725.151(b) in Counts II and VI.
2.
The Provisions Of The Facility’s“Emergency Re sponse And
Contingency Plan” Which Complainant Cites Are Irrelevant .
In response to Flex-N-Gate’s Motion to Dismiss, with regard to Counts II and VI,
Complainant cites several specific provisions of the Facility’s
“Emergenc y Res poe nsand
Contingency Plan ” (“Plan”). See
R e s po nse to Mtioon to Dismiss, ¶¶ 22.a., 32.
Specifically, Complainan t states:
At hearing, complainant will show that the plan prepared by respondent
had the following stated triggers in the plan itself, which triggers were
pulled:
a.
When Department Associates recognized an emergency (Page
-3 6
of the plan, pars. 2-6 o f Count VI of the complaint).
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b.
A spill that caused the release of toxic fumes (Page 6 -1 [should be
6-4] of the plan, pars 7-8 of Count VI of the complaint).
c.
A spill of more than 100 pounds of sulfuric acid (Page 6 -10 of the
plan, pars 9-14 of Count VI [of] the complaint.)
Response to Moti on to Dismiss, ¶32S.ee also
, Id., ¶22.a.
The portions ofthe Plan that Complainant cites are included herewith as part of
Exhibit E. Affidavit of Jackie Christensen, attached hereto as Exhibit F
(“Christensen
Aff.”)
, at ¶3.
Complainant appears to argue that (1) Flex -N-Gate did not follow these
provisions of the Plan, and
(2) because these provisions were in the
Plan, if Flex -N-Gate
did not follow them, it violated the RCRA contingency plan regulations even if, under
those regulations, on action was required.
See, e.g
,
.
Response to Motion to Dismiss,
¶22.a. (“Page 6-4 of the plan requires that it be implemented when there is ‘a spill that
could cause a release of toxic liquids or fumes.’”) Flex -N-Gate denies that itdid not
follow the Plan . Regardless however, Complainant’s argument is a “red herring.”
What Complainant fails to realize is that the Facility’s “Emergency Response and
Contingency Plan” is more than simply a Contingency Plan under Subpart D to
35 Ill.
Adm. Code Part 725 . Rather, the Plan was developed by Flex-N-Gate to address
numerous types of situations that could occur at the Facility, including, but not limited to
,
situations involving “ hazardous waste. ” Christensen Aff. at ¶4. Thus, portions of the
“Emergency Response andContingency Plan” serve as:
•
the Facility’s “Contingency Plan” under SubpartD to 35 Ill. Adm. Code
Part 725;
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•
the Facility’s “Emergency Response Plan” u nde r t heOccupational Safety
and Health Act (29 C.F.R. § 1910.120(p)(8)(i));
and set out other procedures for the Facility relating to maintenance, security, etc .
Christensen Aff. at ¶5.
Thus, in addition to discussing certain situations involving “hazardous waste s”
(Plan at p. 6-3), the Plan deals with such things as:
•
w here at t he Facility employees who are injured in any wa yshould be
taken (Exhibit E
at p. 8);
•
w he reFacility employees should seek shelter in the event of a tornado
(Exhibit E
at p. 18);
•
how to tape up vents at the Facility in the even t of “a nuclear accident
involving a vehicle carrying radioactive materials where radioactive
particles are released into the atmosphere in the vicinity of the [Facility]”
(Exhibit E
at p. 20); and
•
which outside contractors should be contacted if “a major disaster”
d am age s pl a nt uipmeq ent and the Facility’s personnel cannot repair the
equipment (Exhibit E
at p. 36).
Likewise, Se c tio n 6 o f t he P la
, wnhich includes the pages cited by Complainant,
is not focused on “hazardous waste,” but rather, is titled “Hazardous Material Spills,”
and
addresses any type of hazardous substance at the Facility, be it a waste or a product.
Christensen Aff. at ¶6; see
Exhibit E, Section 6. For example, page 6 -3 of the Plan states:
The Spill Teams are comprised of selected employees throughout the
faci lity who have adequate training to deal with a broad range of chemical
emergencies . Special attention is afforded areas that have hazardous
waste . Provision isalso made for areas where loading and off
-loading of
hazardous materials
occurs and along path ways for internal distribution of
hazardous chemicals
.
Exhibit E at 6-3. (Emphasis added.)
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In his response to Motion to Dismiss, Complainant states:
OSHA rules require the preparation of a similar “Emergency Response
P l an ”.Those rules allow the owner or operator of a RCRA facility to use
the contingency plan prepared pursuant to Board rules to meet
the OSHA
requirement. (29 CFR 1910.120(p)(8)(i)).
a.
At hearing, complainant intends to show that respondent elected to
prepare a RCRA contingency plan, and to use the RCRA
contingency plan to meet the OSHA requirement.
***
31.b. Respondent elected not to prepare an OSHA emergency response
plan, instead relying on the RCRA contingency pla n.
Response to Motion to Dismiss, ¶¶13, 13(a) and 31(b).
Complainant misunderstands the OSHA Emergency Response Plan r ulaned Flex-
N-Gate’s a ctions under that rul. eThat rule, 29 C.F.R. § 1910.120(p)(8)(i) does not
“allow the owner or operator of a RCRA facility to use the contingency plan prepared
pursuant to Board rules to meet the OSHA requirement.” Rather, that regulation provides
that an emergency plan “need not duplicate any of the subjects fully addressed in the
employer’s contingency planning required by permits … provided that the contingency
plan is made part of the emergency response plan.” By definition, an OSHA Emergency
Response Plan is broader than a RCRA contingency plan, because an OSHA Emergency
Response Plan must address “an occurrence which results, or is likely to result, in an
uncontrolled release of a hazardous substance
” (29 C.F.R. § 1910.120(a)(3)), while a
RCRA contingency plan is confined only to “fires, explosions, or releases of hazardous
waste or hazardous waste constituents.”
35 Ill. Admin. Code §725.151(b). Thus, an
OSHA Emergency Respons e Plan must include more than a RCRA contingency plan.
Compare 29 C.F.R. § 1910.120(p)(8) with 35 Ill. Admin. Code § 725.152 (describing
ELECTRONIC FILING, RECEIVED, MAY 27, 2005
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what each plan must contain) . Thus, Flex-N-Gate did not “elect[] to prepare a RCRA
contingency pla n, and to use th e CRA
R
contingency plan to meet the OSHA
requirement,” as Complainant alleges. Response to Motion to Dismiss, ¶13(a). Rather,
as Section 1910(p)(8)(i) allows, Flex -N-Gate included its contingency plan within its
emergency response plan; this is why the Plan is titled “Emergency Re sponse and
Contingency Plan.” See
Exhibit E. Christensen Aff., a t ¶7.
Thus, because the Plan contains numerous provisions that have nothing to do with
fires, explosions, or releases of hazardous waste or hazardous waste constituen
ts , w he t he r
or not Flex-N-Gate did not follow some provision of the Plan reveals nothing about
whether or not Flex
-N-Gate violated the RCRA contingency plan regulations, or , in
particular, 35 Ill. Admin. Code 725.151(b). Therefore, while Fl
ex-N-Gate denies failing
to comply with the
provisions
cited by Complainant
, whether or not it did so is irrelevant ,
because these provisions are not requirements of Section 725.151(b):
•
the language referenced from Page 6 -3 of the Plan addresses responses to
“spills,” wh ich, again, include products as well as waste;
•
t he re f ere nce o n P age
-4 6of the Plan to responses to “a spill that could
cause the release of toxic liquids or fumes” applies equally to products as
well as to waste , and, as discussed above, a “release of t oxic fumes” does
not trigger a RCRA contingency plan ; and,
•
the reference on page -610 of the plan to spills of sulfuric acid relates to
release reporting requirements under the Emergency Procedures and
Community Right to Know Act.
Thus, even if Flex -N-Gate had failed to follow these provisions of the Plan,such failure
does not violate Section 725.151(b), because Section 725.151(b) only requires action in
the event of “a fire, explosion or release of hazardous waste or hazardous waste
constituents ,” which , again, did not occur he re.
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By analogy, as noted above, Page 8 of the Plan states that if an employee at the
Facility is injured, in any manner, “if possible,” he or she “shall be transported directly to
the Safety office.” Exhibit E
at 8. If an employe e falls down a flight of stairat
s the
Facility and breaks her leg, and it is “possible” to transport that employee “directly to the
Safety office,” but, instead, for some reason, the employee is transported to some other
location, this provisi on on Page of8 the Plan hasnot been followed . Thi s d oe s not m ea n,
however, that the RCRA contingency plan requirements have been violated, because, as
in this case, no “fire, explosion or release of hazardous waste or hazardous waste
constituents” occurred. Thus, again, the Board cannot determine whether or not Flex -N-
Gate violated Section 725.151(b) by looking at whether Flex -N-Gate failed to follow
provisions of the Plan . Rather, the only way that the Board can determine whether or not
Flex -N-Gate violated Secti on 725.151(b) is by first determining whether a “a fire,
explosion or release of hazardous waste or hazardous waste constituents” occurred.
3.
Flex-N-Gate is Entitled to Summary Judgment on Counts II and
VI.
Again, to prove a violation of Section 725.151( b), Complainant must establish the
following four elements:
1.
that the incident at issue does not involve a “wastewater treatment
unit as defined in 35 Ill. Adm. Code 720.110 ”;
2.
that “a fire, explosion or release of hazardous waste or hazardous
waste c onstituents” occurred;
3.
That such “fire, explosion or release . . . could threaten human
health or the environment
”; and,
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4.
that Flex-N-Gate did not “immediately” carry out“[t]he provisions
of the [contingency] plan. ”
35 Ill. Admin. Code §§ 725.101(c)(10), 725.151(b).
In Count II, Complainant clearly understands that he must establish the second
and third of these elements. Why else would he have alleged in paragraph two of Count
II that “[t]he hydrogen sulfide emission was a release of hazardous waste or hazardous
waste constituents that could threaten human health or the environment within the
meaning of Section 725.151(b) ”? Complaint at 5, ¶2.
In People v. G.M. Demolition Corp.
, PCB No. 96-261, 1998 Ill. ENV LEXIS 508
(Ill.Pol.Control.Bd. Oct. 1, 1998), the State brought a claim against the defendant for
demolishing a “structure” without taking certain steps required by the National Emission
Standards for Hazardous Air Pollutants.
Id.
, 1998 Ill. ENV LEXIS 508, at **5-8 . The
Board found, howeve r, that the building that had been demolished did not meet the
definition of “structure,” and therefore that the NESHAP regulations at issue did not
apply to the demolition. Id.
at **7-8. Accordingly, the Board granted summary
judgment to th e defendant.Id.
at *8.
Likewise,
•
in People v. Stringini
, PCB No. 01-43, 2003 Ill. ENV LEXIS 624, at **
27-28 (Ill.Pol.Contr ol.Bd. Oct. 16, 2003), the Board granted summary
judgment to the respondent where it was sued for violating Section 21(d)
of the Environmental P rotection Act by storing “hazardous waste” without
a permit, because the material being stored did not meet the definition of
“hazardous waste”;
•
In People v. City of Lawrenceville, et al
, PCB No. 00-122, 2001 Ill. ENV
LEXIS 247, at *33 (Ill.Pol.Control.Bd . June 7, 2001), the Board granted
summary judgment to the respondent where it was sued for violating a
portion of the Environmental Protection Act that applied to certain public
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water supplies, because the water supply at issue did not meet the
definition in the statute; and,
•
in People v. Environmental Control and Abatement, Inc. , PCB No. 95-
170, 2000 Ill. ENV LEXIS 119, at **9-10, 20-21 (Ill.Pol.Control.Bd. Oct.
1, 1998), the Board granted summary judgment to therespondent w he re it
was sued for fa ilingto follow a regulation relating to “demolition ,”
because the project at issue was a “renovation” and thus did not meet the
definition of “demolition .”
Analogously, in this case, thealleged release of uncontained hydrogen sulfide
does not meet the defini tion of “fire, explosion, or release of a hazardous waste or
hazardous waste constituent.” See
discussion above. Thus, as inG.M. Demolition ,
Stringini , City of Lawrenceville , and Environmental Control and Abatement, Inc. , t he
regulations that Complainan t argues Flex-N-Gate violated do not apply to this situation,
and, accordingly, as in tohse cases, the Board should grant Flex
-N-Gate summary
judgment. See
Gauthier, 266 Ill. App. 3d at 220, 693 N.E.2d at 999(“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.”) (Emphasis added; citations omitted.)
B.
Flex-N-Gate Also is Entitled to Summary Judgment on Count III– 35
Ill. Admin. Code § 735.156(j)
.
Count III of Complai na nt’s Complaint asserts that Flex -N-Gate violated 35 Ill.
Admin. Code § 725.156(j) by“fail[ing] to report the incident to the Agency within fifteen
days. ” Complaint at 6, Count III, ¶2. Again, Flex-N-Gate disagrees.
Section 725.156(j) states:
The owner or operator shall note in the operating record the time, date,
and details of any incident that requires implementing the contingency
plan. Within 15 days after the incident, it shall submit a written report on
the incident to the Director. The report mu st include:
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1)
Name, address, and telephone number of the owner or
operator;
2)
Name, address, and telephone number of the facility;
3)
Date, time, and type of incident (e.g., fire, explosion);
4)
Name and quantity of materials involved;
5)
The extent of injuries, if any;
6)
An assessment of actual or potential hazards to human
hea lth or the environment, where this is applica ble; and
7)
Estimated quantity and disposition of recovered material
that resulted from the incident.
35 Ill. Admin. Code § 725.156(j).
Thus, to prove a violation of Section 725.156(j), Complainant must prove the
following three elements:
1.
that the incident at issue does not involve “a wastewater treatment
unit as defined in 35 Ill. Adm. Code 720.110 ”;
2.
that an “incident tha t requires implementing the contingency plan ”
occurred; and,
3.
that “[w]ithin 15 days after the incident, ” Flex-N-Gate did not
“submit a written report on the incident to the Director.
”
35 Ill. Admin. Code §§725.101(c)(10), 725.156(j).
Complainant cannot establish the second element of this Count.
3
Again, to establish the second element of his claim under Section 725.156(j),
Complainant must prove that an “incident that requires implementing the contingency
plan” occurred. However , t he o nly“incidents” that “require[] implementing [a]
3
As with Counts II and VI, Flex -N-Gate argues in its Motion for Complete S u m m ary
Judgment that Complainant also cannot establish the first element of this Count.
See
Motion for Complete Summary Judgment.
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c o nt ing e ncy pl” ana re“a fire, explosion or release of hazardous waste or hazardous waste
constituents which could threaten human health or the environment. ” 35 Ill. Admin.
Code § 725.151(b). (“The provisions of the [con tingency] plan must be carried out
immediately whenever there is a fire, explosion or release of hazardous waste
constituents ….”) As discussed above, no“fire, explosion or release of hazardous waste
or hazardous waste constituents ” occurred. See
discussion above. Thus, Compla inant
cannot establish th e second element of his claim under Section 725.156(j) , that an
“incident that requires implementing the contingency plan
” occurred. Therefore, the Board
also should grantFlex -N-Gate summary judgment on Count III of Complainant’s
Complaint.
C.
Flex-N-Gate Also is Entitled to Summary Judgment on Count IV– 35
Ill. Admin. Code § 735.154(b.)
Count IV of Complainant ’s Complaint asserts that Flex -N-Gate violated 35 Ill.
Admin. Code § 725.154(b) by“fail[ing] to immediately amend [its] contingency plan to
address the possibility of an acid spill resulting in a hydrogen sulfide release. ” Complaint
at 6-7. Again, Flex -N-Gate disagrees.
1.
Complainant Cannot Prove All Of The Elements Of His Claim In
Count IV.
Section 725.154(b) states:
The contingency plan must be reviewed and immediately amended, if
necessary, whenever:
***
b)
The plan fails in an emergency.
35 Ill. Admin. Code § 725.154(b).
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Thus, to prove a violation of Section 725.154(b), Complainant must pr
ove the
following four elements:
1.
that the incident at issue does not involve “a wastewater treatment
unit as defined in 35 Ill. Adm. Code 720.110 ”;
2.
that “an emergency ” occurred;
3.
that the plan “fail[ed] ”; and,
4.
that Flex-N-Gate did not there after “review[] and immediately
amend[]” the contingency pla n.
35 Ill. Admin. Code §§725.101(c)(10), 725.154(b).
Complainant cannot establish the third element of this claim.
4
Agai n, i n o rde r to p ro v e t he d t hielerment of his claim under Section 725.154(b),
Complainant must establish that the Facility ’s contingency pla “nfail[ed].” Complainant
cannot do this, because, by definition, the plan cannot “fail ” if it never was triggered in
the first place. As discussed above, even if the alleged release of
uncontained hydrogen
sulfide gas occurred, the plan was not triggered, because such alleged release did not
constitute a “fire, explosion, or release of hazardous waste or hazardous waste
constituent s.”
The hammer analogy helps illustrate the point. ComplaIf
inant had hit his thumb
with a hammer, and argued that Flex -N-Gate did not respond properly, the alleged lack of
a proper response would not be because of a “failure ” o f theFacility’s Plan, because the
4
As with Counts II, I IIan
, d VI, Flex -N-Gate argues in its Motion for Complete
Summary Judgment that Complainant also cannot establish the first element of this
Count. See
Motion for Complete Summary Judgment. It also is Flex -N-Gate’s position
that Complainant cannot establish the second element of his claim, na mely, that “an
emergency” occurred. Flex -N-Gate need not expand on this point, however, as it is
entitled to summary judgment because of Complainant’s inability to establish the first
and third elements of his claim.
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Plan never applied in the first place. Likewe, ians y other “plans ” that the Facility has –
for parking, for snow removal, for bathroom cleaning, etc.
– did not “fail” in response to
the alleged release of hydrogen sulfide; they did not apply to that release, so, for purposes
of that alleged release, t hey were irrelevant.
The Facility’s contingency plan also did not
apply to the alleged release of hydrogen sulfide, so, for purposes of that alleged
release,
the contingency plan a lso wasirrelevant.
This point also is supported by other provisions in Subpart D of Part 725 of the
Board ’s regulations. For example, Section 725.151, “Purpose and Implementation of
Contingency Plan, ” subsection (a), provides that the purpose of contingency plans is:
to minimize hazards to human health or the environment
f ro m ifres,
explosions or any unplanned sudden or non -sudden release of hazardous
waste or hazardous waste constituents to air, soil or surface water,
35 Ill. Admin. Code § 725.151(a). (Emphasis added.)
Section 725.151(b) provides that:
The provisions of th e plan must be carried out immediately whenever
there is a fire, explosion or release of hazardous waste or hazardous waste
constituents which could threaten human health or the environment.
35 Ill. Admin. Code § 725.151(b). (Emphasis added.)
And, Section 7 25.152, “Content of Contingency Plan, ” provides that:
The contingency plan must describe the actions facility personnel must
take to comply with Sections 725.151 and 725.156 in response to fires,
explosions, or any unplanned sudden or n-osudden
n
release of hazardous
waste or hazardous waste constituents to air, soil, or surface water at the
facility .
35 Ill. Admin. Code § 725.152(a). (Emphasis added.)
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Thus, Subpart D makes clear that:
•
the purpose of contingency plans is to address “fires, explosions or . . .
release[s] of hazardous waste or hazardous waste constituents ”;
•
contingency plans are to implemented in the event of “a fire, explosion or
release of hazardous waste or hazardous waste constituents ”; and
•
contingency pla ns must expla in what to do
n thie event of “fires,
explosions, or . . . release of hazardous waste or hazardous waste
constituents. ”
Likewise, then, by definition, a contingency pla n could fail only in the event
“fire,of a
explosion, or release of hazardous waste or hazardous waste constituents.”
The Illinois Supreme Court has held that “[o]ne of the fundamental principles of
statutory construction is to view all provisions of an enactment as a whole. Words and
phrases should not be construed in isolation, but must be interpreted i n light of other
relevant provisions of the statute. ” Michigan Ave. Nat ’l B a nk v . C o unty of Co
,
ok191
Ill.
2d 493, 504, 732 N.E.2d 528, 535 (Ill. 2000). (Citations omitted.) This same rule
governs the construction of regulations.
Panhandle Eastern Pipe Line Co.
, 314 Ill. App.
3d at 300, 734 N.E.2d at 21 (“construction of administrative rules and regulations is
govern ed by the same standard cona sstruction of statutes.”) Construing Section
725.154(b) in light of these principles, it is clear that Sectio n 725.154(b) applies only in
the case of a “fire, explosion, or release of hazardous waste or hazardous waste
constituents.”
2.
Complainant’s Argument That Flex -N-Gate Violated Section
725.154(b) Even If The Plan Was Not Triggered is Erroneous .
In response to Flex-N-Gate’s Motion to Dismiss , Complainant argues that Flex-
N-Gate violated Section 725.154(b) because “the plan failed in this incident regardless of
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whether the incident triggered
t he plan.” Response to Motion to Dismiss, ¶27. Like
Complainant’ s argument as to Counts II and VI discussed above, this also is a “red
herring.”
Again, the Facility’s “Plan” is more than a RCRA contingency plan. Thus,
whether or not it had provisions which Complainant asserts are necessary to deal with the
alleged release of uncontained hydrogen sulfide gas is irrelevant for purposes of RCRA.
As discussed above, the contingency plan regulations only are triggered by a “fire,
explosion, or release of hazardous waste or hazardous waste constituents.” If something
else happened (e.g., a per son hitting their thumb with a hammer, or, in this case, an
alleged release of uncontained gas), which the Plan did not address , and the Plan was not
thereafteramended, that does not violate Section 725.154(b), because the contingen cy
plan portions of the Facility’s Plan did not “fail.”
Complainant also asserts that Flex -N-Gate is “arguing that an incident in which
workers were merely sickened did not show the need to amend the plan,” and that by this
argument, Flex -N-Gate “is argui ng that the need to amend the contingency plan would be
triggered only if a worker was actually killed.” Response to Motion to Dismiss at ¶27.
Flex -N-Gate is flabbergasted by this argument. Flex -N-Gate has never argued that
whether or not it has any obl igation under Section 725.154(b) has anything to do with t he
severity of health effects experienced by employees.
3.
Flex-N-Gate Is Entitled To Summary Judgment on Count IV of
Complainant’s Complaint.
Again, Section 725.154(b) provides that a contingency plan must be amended if
“[t]he plan fails in an emergency.” 35 Ill. Admin. Code § 725.154(b). Interpreting
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Section 725.154(b) “in light of other relevant provisions of the [regulation]” discussed
above – Sections 725.151(a), 725.151(b), and 725.152(a)– makes clear that if no “fire,
explosion or release of hazardous waste or hazardous waste constituents” occurs, a
contingency plan cannot “fail,” because the plan’s purpose, implementation trigger, and
content requirement relate only to “fires, explosions r oreleases of hazardous waste or
hazardous waste constituents.” If one of these four things does not occur, but something
else happens – be it hitting one’s thumb with a hammer, or a release of uncontained gas –
a facility’s contingency plan simply does ot napply. Thus, Complainant cannot establish
t hethird element of his claim against Flex -N-Gate in Count IV , and the Board should grant
Flex -N-Gate summary judgment on Count IV as well.
D.
Flex-N-Gate Also is Entitled to Summary Judgment on Count V– 35
Ill. Admin. Code § 725.154(c)
.
Finally, Count V of Complaina’nts Complaint asserts that Flex -N-Gate violated
35 Ill. Admin. Code § 725.154(c) by“not amend[ing]” the Facility’s contingency plan in
light of a “c ha ng” ein the Facility“in a way that material ly increases the potential for
releases of hazardous waste constituents, ” and a “change” in the Facility “in a wa y that
changes the response necessary in an emergency” .Complaint at 7-8, Count V, ¶¶ 3-5.
Again, Flex-N-Gate disagrees.
Section 725.154(c) tsates:
The contingency plan must be reviewed and immediately amended, if
necessary, whenever:
***
c)
The facility changes--in its design, construction, operation,
maintenance or other circumstances --in a wa y that
materially increases the potential for fires, explosions or
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releases of hazardous waste or hazardous waste
constituents or changes the response necessary in an
emergency.
35 Ill. Admin. Code § 725.154(c).
To prove a violation of Section 725.154(c), Complainant must prove the
following four ele ments:
1.
that the incident at issue does not involve “a wastewater treatment
unit as defined in 35 Ill. Adm. Code 720.110 ”;
2.
that “[t]he facility change[d] --in its design, construction, operation,
maintenance or other circumstances ”;
3.
that the chang e in the facility:
a.
“materially increases the potential for fires, explosions or
releases of hazardous waste or hazardous waste
constituents,” or
b.
“changes the response necessary in an emergency”; and,
4.
that Flex-N-Gate did not thereafter “review[] and immediately
amend[]” the contingency pla n.
35 Ill. Admin. Code § 725.154(c).
Complainant cannot establish the third element of this claim.
5
First, even if some “c ha ng” ehad occurred in the Facility, Complainant cannot
prove that any such change “materially increase[d] the potential for fires, explosions or
releases of hazardous waste or hazardous waste constituents.
” Complainant does not
5
As with Counts II, III, IV, and VI, Flex-N-Gate argues in its Motion for Complete
Summary Judgment that Complainant also cannot establish the first element of this
Count. See
Motion for Complete Summary Judgment. It also is Flex -N-Gate’s position
that Complainant cannot establish the seco nd element of his claim, that “[t]he facility
change[d] --in its design, construction, operation, maintenance or other circumstances.”
However, Flex -N-Gate need not expand on this point, as it is entitled to summary
judgment as to Count V based on the fact that Complainant cannot prove the first and
third elements of his claim.
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argue that any “material increase[] [in] the potential for fires, explosions or releases of
hazardous waste” occurred. However, Complainant does argue that:
the facility has changed in a way that materially increases the potential for
releases of hazardous waste constituents
, specifically, the hydrogen sulfide
emission incident demonstrated the possibility that an acid spill could
result in a release of hydrogen sulfide.
Complaint, Count V, ¶3. (Emphasis added.)
As discussed above, however, even if a release of hydrogen sulfide
gas had
occurred, hydrogen sulfide does not constitute a “hazardous waste constituent .” Thus,
even if the “acid spill could result in a release of hydrogen sulfide ” (which Flex-N-Gate
denies), that does not establish an “increase[] [in] the potential for . . . releases of
hazardous waste constituents. ”
Second, Complainant cannot establish that any“c ha ng”eat t heFacility “changes
the response necessary in an emergency.
” Complainant argues that “the facility has
changed in a way that changes the response necessary in an emergency, including the
necessity of having a hydrogen sulfide meter available, having personnel trained in the
measurement of hydrogen sulfide and having respirators available for use with hydrogen
sulfide. ” Complaint, Count V, ¶4. As discussed above, however, Section 725.151(a)
makes clear that what contingency pla ns ust
m set forth are:
the actions facility personnel must take to comply with Sections 725.151
and 725.156in response to fires, explosions, or any unplanned sudden or
non -sudden release of hazardous waste or hazardous waste constituents to
air, soil, or surf ace water at the facility.
35 Ill. Admin. Code § 725.152(a). (Emphasis added.)
The alleged release of hydrogen sulfide does not constitut“e fiare, explosion or . .
. release of hazardous waste or hazardous waste constituents. ” Thus, even if the alleged
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relea se of h ydrogen sulfide had occurred, Facility’sthe
contingency plan would not need
to be revised to address it, because, again, contingency plans only must address
“t he
actions facility personnel must take . . . in response to fires, explosions, or. . . release[s]
of hazardous waste or hazardous waste constituents. ” (To continue the hammer analogy,
t heFacility’s contingency plan also would not need to be revised if Complainant hit his
thumb with a hammer, because a hammer is not a “fire, explosion , or . . . release of
hazardous waste or hazardous waste constituents. ”)
Thus, for the reasons stated above, Complainant cannot establish the third element
of his claim in Count V of his Complaint. Therefore, the Board a lso should grantFlex-N-
Gate summary judgment on Count V.
VI.
WHETHER OR NOT HYDROGEN SULFIDE GAS COULD HAVE BEEN
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. Again, under the Board ’s rules, “[s] ummary judgment is
appropriate when the pleadings, depositions, admissions on file, and affidavits disclose
that there is no genuine issue as toa ny materia l fa cantd
the moving party is entitled to
judgment as a matter of law. ” C ass ens a nd S o ns , I
,
ncPCB
.
No. 01-102, 2004 Ill. ENV
LEXIS 635, at **11-12 (citations omitted). For purposes of this rule, a fact is “material ”
if it is “[]related to the essential elements of the cause of action ” (Smith
, 289 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 to the essential elements of the cause of action or defense, regardless of how
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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 contention, because it is chemically impossible for the chemical s
present in the plating room to combine in such a way as to create hydrogen sulfide gas.
Regardless, however, for purposes of this Motion, it does not matter whether
Complainant or Flex -N-Gate is right. This is because whether or not unconta ined
hydrogen sulfide gas was created is not a “material fact
”; whether or not hydrogen sulfide
gas was created is not “[]related to the essential elements of [Complainant ’s] cause of
action” (Smith
, 289 Ill. App. 3d at 1069, 682 N.E.2d at 1254) and will no“taffect the
outcome of [Complainant’s] ca se.” Westbank
, 276 Ill. App. 3d at 562, 658 N.E.2d at
1389. This is because, as discussed above, RCRA does not regulate uncontained gases,
and uncontained hydrogen sulfide gas 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 to the essential elements of the cause of action or
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.
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I V.
CONCLUSION
The fact that uncontained gases are not “solid wastes ” – and thus not“hazardous
wastes” – for purposes of RCRA underscores the fact that Complainant is focusing on the
wrong statutory scheme in this litigation. Obviously the Clean Air Act governs air
emissions from the Facility. And, OSHA hasjurisdiction to review any alleged effect of
the alleged release on Facility employees . (In fact, Complainant filed a claim with
OSHA relating to this matter. Complainant’s Motion to Accept for Hearing and for
Expedited Discovery, at ¶8. ) The Board shou ld be clear that Flex-N-Gate is not arguing
that the alleged release of hydrogen sulfide gas at the Facility is un -reviewable under any
law. Rather, Complainant has chosen to bring his claim against Flex
-N-Gate under
RCRA, and Flex-N-Gate simply is arguing that RCRA does not apply.
WHEREFORE, for the reasons stated above, Respondent, FLEX
-N-GATE
CORPORATION, respectfully moves the Illinois Pollution Control Board
to grant
FLEX -N-GATE CORPORATIONpartial summary judgment as to Counts II through VI
of Compla inant’s Complaint, to enter judgment in favor of FLEX
-N-GATE
CORPORATION and againt sComplainant as to those claims , and to award FLEX -N-
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GATE CORPORATION such other relief as the Illinois Pollu tion Control Board deems
just and proper in the premises.
Respectfully submitted,
FLEX -N-GATE CORPORATION
Respondent,
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 Partial Summary Judgment
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