FLEX-N-GATE CORPORATION,
an Illinois Corporation,
CERTIFICATE OF SERVICE
I, the undersigned, certify that, on the 1~day of June, 2005, I served the listed
documents, by first class mail, upon the listed persons:
MOTION FOR TIME TO RESPOND
MOTION TO WITHDRAW MOTION TO STRIKE ANSWER
MOTION FOR SANCTIONS FOR EVASIVE PLEADING
MOTION TO RECONSIDER HEARING OFFICER ORDER
RESPONSE TO MOTION FOR PROTECTIVE ORDER
Thomas G. Safley
Hodge Dwyer Zeman
3150 Roland Avenue
Post Office Box 5776
Springfield, IL 62705-5776
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph
Suite 11-500
Chicago, Illinois 60601
Carol Webb
Hearing Officer, IPCB
1021 North Grand Avenue East
Post Office Box 19274
Springfield, IL 62794-9274
Morton F. Dorothy
804 East Main
Urbana IL 61802
217/384-1010
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
RECE~VED
CLERK’S OFFICE
MORTON F. DOROTHY,
)
Complainant,
vs.
)
)
)
)
)
)
)
)
JUN 072005
STATE OF ILL~OIS
Pollution Cor~ro~t3oard
No. PCB 05-049
Respondent.
)
(LVo g~) h
Morton F. Dorothy, Complainant
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN
COUNTY, ILLINOIS
R~CE~VED
CLLRK’S OFFICE
MORTON F. DOROTHY,
)
J(fl~40720o5
Complainant,
)
STATE OF ILLINOIS
Pollution Control Board
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
MOTION FOR TIME TO RESPOND
Complainant Morton F. Dorothy moves that the Board grant additional time to
respond to the motions for
summary
judgment
filed by respondent on May 27, 2005,
and as reason says as follows:
1. The motions were filed with the Board on May 27, 2005.
2. The motions for summary judgment were received by the complainant on June 4,
2005, eight days after filing.
3. Although the envelope containing the motions was post marked May 27, with
sufficient postage for first class, the envelope did not bear a “First Class” or
“Priority Mail” notation. In the absence of such notation, the Post Office normally
handles large
envelopes as third class mail, regardless of the amount of postage
affixed.
4.
Although complainant has had little time to study them, the motions for summary
judgment appear to be mainly
a regurgitation of the October 12, 2004, motion to
dismiss, which the Board has already denied.
5.
The motions are extremely voluminous, comprising 96 pages, pIus numerous
attachments.
6. Complainant is serving as an unpaid volunteer, seeking to enforce Board rules
on behalf of the People of the State, with little hope of compensation.
7.
Complainant needs additional time to respond to the motions for summary
judgment.
WHEREFORE complainant prays that the Board grant him an extension of time,
until June 24, 2005, to respond to the motions for summary judgment.
Morton F. Dorothy
804 East Main
Urbana IL 61802
~‘ti~o~i c~.~
217/384-1010
Morton F. Dorothy, Complainant
STATE OF ILLINOIS
)
)
ss
COUNTY OF CHAMPAIGN
)
AFFIDAVIT
Complainant Morton F. Dorothy makes the following affidavit in support of his
Motion For Time to Respond:
1.
The motions for summary judgment were received by the complainant on June 4,
2005, eight days after filing.
2. Although the envelope containing the motions was post marked May 27, with
sufficient postage for first class, the envelope did not bear a “First Class” or
“Priority Mail” notation.
In the absence of such notation, the Post Office normally
handles large envelopes as third class mail, regardless of the amount of postage
affixed.
3.
Although complainant has had little time
to study them, the motions for summary
judgment appear to be mainly a regurgitation of the October 12, 2004, motion to
dismiss, which the Board has already denied.
4.
The motions are extremely voluminous, comprising 96 pages, pIus numerous
attachments.
5.
Complainant is serving as an
unpaid volunteer, seeking to enforce Board rules
on behalf of the People of the State, with little hope of
compensation.
6.
Complainant needs additional time to respond to the motions for summary
judgment.
Morton F. Dorothy, Complainant
The undersigned, a notary public in and for the aforesaid County and State,
certifies th~tthe above person appeared before me and signed the foregoing document
on the c~r1~t
day of June, 2005.
Notary Pu~tI’c
Morton F. Dorothy
804 East Main
Urbana IL 61802
217/384-1010
“
FFICIAL SEAL”
BRADLEY M. KRALL
Notary Public, State of Illinois
My Commission ~.xp~res
.
11t2~frf~
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~ERK’SOFFICE
CHAMPAIGN COUNTY, ILLINOIS
~
072005
MORTON F. DOROTHY,
)
STATE OF ILLINOIS
)
Pollution Control Board
Complainant,
)
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
MOTION TO WITHDRAW MOTION TO STRIKE ANSWER
Complainant Morton F. Dorothy moves that the Board grant leave to him to
withdraw the Motion to Strike Answer filed by him with the Board on April 15, 2005.
1.
On or about May 27, 2005, Respondent made the following admission in
response to the Supplemental Request to Admit:
Respondent claims exemption from the RCRA permit requirement
pursuant to 35 III. Adm. Code 703.123(a) and 722.134(a) with respect to
one or more wastes generated by the Guardian West facility.
2.
This admission has rendered moot the Motion to Strike Answer.
3.
Complainant is• also filing a Motion for Sanctions for Evasive Pleading asking that
the Board award complainant the costs of extracting the above admission from
respondent.
WHEREFORE complainant prays that the Board allow him to withdraw the
Motion to Strike Answer filed by him with the Board on April 15, 2005.
Morton F. Dorothy
804 East Main
I~’\
A
Urbana 1L61802
\.. \ ~‘o~~—a’ci~,,
217/384-1010
Morton F. Dorothy, Complainant
RECE~VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
CHAMPAIGN COUNTY, ILLINOIS
JUN
072005
MORION F. DOROTHY,
)
Pollution
STATE OF
Control
ILLINOIS
Board
Complainant,
)
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
),
Respondent.
)
MOTION FOR SANCTIONS FOR EVASIVE PLEADING
Complainant Morton F. Dorothy moves that the Board impose sanctions on
respondent, Flex-N-Gate Corporation, for evasive pleading, and as
reason states as
follows:
Paragraph 12 of the common allegations of the complaint filed in this case on
September 8, 2004 alleges as follows:
Respondent claims that the facility operates pursuant to 35111. Adm. Code
703.123(a) and 722.134(a), as a large quantity generator of hazardous
waste which is treated on-site in tanks, without a RCRA permit or interim
status. In the event the Board determines that this claim is valid, Section
722.134(a)(4) requires compliance with 35111. Adm. Code 725.Subpart D,
including Sections 725.151 through 725.156. In the event the Board
determines that this claim is invalid, respondent is operating an
unpermitted hazardous waste treatment and storage facility-which is
subject to Sections 725.151 through 725.156 directly.
2.
On or about March 4, 2005, respondent Flex-N-Gate Corporation filed an answer
to the complaint. Paragraph 12 of the answer states as follows:
Flex-N-Gate denies the allegation contained in the first sentence of
paragraph 12 of Complainant’s Complaint. The remainder of paragraph 12
states legal conclusions that do not call for a response. To the extent
paragraph 12 states any further allegations of fact, Flex-N-Gate denies
the same.
3.
On April 15, 2005, complainant filed with the Board a Motion to Strike Answer
addressing paragraph 12 of the Answer. Complainant has moved to withdraw
that motion.
4.
The Motion to Strike Answer noted that respondent had filed a motion and
affidavits including the following statements:
Other wastestreams that Flex-N-Gate produces are stored on-site for less
than 90 days and then shipped off-site for disposal, and Flex-N-Gate
considers this activity to be exemptfrom RCRA permitting requirements
under 35 III. Admin. Code § 722.134(a).
5.
On or about May 27, 2005, Respondent made the following admission in
response to complainant’s Supplemental Request to Admit:
Respondent claims exemption from the RCRA permit requirement
pursuant to 35.I11. Adm. Code 703.123(a) and 722.134(a) with respect to
one or more wastes generated by the Guardian West facility.
6.
In light of the admission of May 27, 2005, the allegation contained in the first
sentence of paragraph 12 of the complaint was true, because the allegation
contained no specific statement that respondent claimed exemption for the entire
facility, or for all wastes.
7.
Under the rules of pleading, respondent was required to admit the truth of the
first sentence of paragraph 12 of the complaint. If respondent felt it necessary to
do so, respondent could have added qualifying language to the effect that it
claimed exemption only with respect to certain wastes and/or portions of the
facility.
8.
Although the Board’s rules are not specific as to evasive pleading, Section 2-610
of the Civil Practice Act provides as follows:
Pleadings to be specific. (a) Every answer and subsequent pleading shall
contain an explicit admission or denial of each allegation of the pleading
to which it relates.
(c) Denials must not be evasive, but must fairly answer the substance of
the allegation denied. (735 ILCS 5/2-610)
9.
Respondent’s answer to paragraph 12 of the complaint was evasive, and did not
fairly answer the substance of the allegation.
10.
Because of respondent’s evasive answer to paragraph 12 of the complaint,
complainant was forced to file a motion to strike the answer, and forced to
engage in a second round of discovery, in order to extract the truth from
respondent. .
11.
Complainant has incurred expenses and unnecessary work as a result of
respondent’s evasive pleading.
WHEREFORE complainant prays that the Board:
1.
Find that the answer to paragraph 12 of the complaint was evasive.
2.
Direct the Hearing Officer to determine reasonable compensation for the
complainant for expenses and unnecessary work as a result of respondent’s
evasive pleading.
Morton F. Dorothy
804 East Main
Urbana IL 61802
t”(L-r
217/384-1010
Morton F. Dorothy, Complainant
STATE OF ILLINOIS
)
)
ss
COUNTY OF CHAMPAIGN
AFFIDAVIT
Complainant Morton F. Dorothy makes the following affidavit in support of his
Motion for Sanctions for Evasive Pleading:
1.
In light of the admission of May 27, 2005, the allegation contained in the first
sentence of paragraph 12 of the complaint was true, because the allegation
contained no specific statement that respondent claimed exemption for the entire
facility, or for a!I wastes.
2.
Respondent’s answer to paragraph 12 of•the complaint was evasive, and did not
fairly answer the substance of the allegation.
3.
Because of respondent’s evasive answer to paragraph 12 of the complaint,
complainant was forced to file a motion to strike the answer, and forced to
engage in a second round of discovery, in order to extract the truth from
respondent.
4.
Complainant has incurred expenses and unnecessary work as a result of
respondent’s evasive pleading.
~
Morton F. Dorothy, Complainant
The undersigned, a notary public in and for the aforesaid County and State,
certifies that the above person appeared before me and signed the foregoing document
on the ~ dayof June, 2005.
No~ZibI
Morton F. Dorothy
804 East Main
Urbana IL 61802
217/384-1010
“OFFICIAL
SEA~T~T
~-1~
•“I—RRADLEY M. KRALL
~
Notary Public, State of Illinois
My Commission ~~ires l2~frj~
BEFORE THE ILLINOIS POLLUTION CONTROL ~
CHAMPAIGN COUNTY, ILLINOIS
JUN
07 2005
MORTON F. DOROTHY,
)
STATE OF ILLINOIS
)
Pollution Control Board
Complainant,
)
)
vs.
. )
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
MOTION TO RECONSIDER HEARING OFFICER ORDER
Complainant Morton F. Dorothy moves that the Hearing Officer reconsider the
Order entered June 2, 2005, and as reason says as follows:
1.
On June 2, 2005, the Hearing Officer, after noting that the respondent had filed a
motion for summary judgment withthe Board, reserved ruling on outstanding
discovery motions until the Board rules on the motion for summary judgment.
2.
The two motions for summary judgment were received by the complainant on
June 4, 2005.
3.
On October 12, 2004, respondent filed a motion to dismiss with the Board, which
motion was denied on February 2, 2005.
4.
Although complainant has had little time to study them, the motions for summary
judgment appear to be mainly a regurgitation of the motion to dismiss which the
Board has already denied.
5.
Up to now discovery in this case has proceeded quickly, with most of the
possible factual issues having already been resolved, to the extent that the
parties could now draft an agreed statement of facts covering most of the
allegations in the complaint.
6.
Upon completion of discovery, complainant expects to file an amended complaint
to make the complaint conform with the facts as elucidated in discovery, to
eliminate many of the legal objections complainant is raising, to allege continuing
violations and to add counts alleging violation of additional Board rules based on
the admissions made in discovery.
7.
Administrative economy would be better served by completing discovery while
the Board considers the motions for summary judgment. Even if the Board were
to grant summary judgment against the complainant, completion of discovery
would allow complainant to draft an amended complaint which could move
quickly to hearing.
8.
This case grew out of a toxic gas release in which several people were nearly
killed. Based on the information available to complainant, respondent has taken
no steps whatsoever to avoid a repetition of this incident, even though such
steps would cost less than $1,000. This case needs to proceed as quickly as
possible to a Board order requiring compliance to avoid a possible fatal accident.
WHEREFORE complainant prays that the Hearing Officer reconsider the order of
June 2, 2005, and allow continuation of discovery pending conskieratiort ofthe motions
for summary judgment.
Morton F. Dorothy
804 East Main
Urbana 1L61802
2~roh) b - ~
217/384-1010
Morton F. Dorothy, Complainant
STATE OF ILLINOIS~
)
)
ss
COUNTY OF CHAMPAIGN
)
AFFIDAVIT
Complainant Morton F. Dorothy makes the following affidavit in support of his
Motion to Reconsider Hearing Officer Order:
1.
The two motions for summary judgment were received by the complainant on
June 4, 2005.
2.
Although complainant has had little time to study them, the motions for summary
judgment appear to be mainly a regurgitation of the October 12, 2004, motion to
dismiss which the Board has already denied.
3.
Up to now discovery in this case has proceeded quickly, with most of the
possible factual issues having already been resolved, to the extent that the
parties could now draft an agreed statement of facts covering most of the
allegations in the complaint.
4.
Upon completion of discovery, complainant expects to file an amended complaint
to make the complaint conform with the facts as elucidated in discovery, to
eliminate many of the legal objections complainant is raising, to allege continuing
violations and to add counts alleging violation of additional Board rules based on
the admissions made in discovery.
5.
Administrative economy would be better served by completing discovery while
the Board considers the motions for summary judgment. Even if the Board were
to grant summary judgment against the complainant, completion of discovery
would allow complainant to draft an amended complaint which could move
quickly to hearing.
6.
This case grew out of a toxic gas release in which several people were nearly
killed. Based on the information available to complainant, respondent has taken
no steps whatsoever to avoid a repetition of this incident, even though such
steps would cost less than $1 ,000. This case needs to proceed as quickly as
possible to a Board order requiring compliance to avoid a possible fatal accident.
Morton F. Dorothy, Complainant
The undersigned, a notary public in and for the aforesaid County and State,
certifies that the above person appeared before me and signed the foregoing document
on the ~
dayof June, 2005.
fl~JCIArSEALYI
Notary Public G
My Commission Expires
11/26f06
Morton F. Dorothy
804 East Main
Urbana IL 61802
217/384-1010
.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARE~ERK’SOFFICE
CHAMPAIGN COUNTY, ILLINOIS
JUN 07 2005
MORTON F. DOROTHY,
)
STATE OF ILLINOIS
)
Pollution Control Board
Complainant,
)
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
RESPONSE TO MOTION FOR PROTECTIVE ORDER
Complainant, Morton F. Dorothy, makes the following response to the motion for
protective order filed by respondent, Flex-N-Gate Corporation, on or about May 27,
2005, and received by complainant on June 4, 2005, which motion asks that the
Hearing Officer allow respondent to avoid responding to the Supplemental
Interrogatories propounded by complainant on or about April 25, 2005:
1.
Complainant requested leave to conduct supplemental discovery during the
status conference ofApril21, 2005. Respondent raised no objection. The
Hearing Officer granted leave to conduct supplemental discovery without
limitation as to the number of questions to be raised by interrogatory.
2.
The complaint alleged, in the first sentence of allegation 12:
Respondent claims that the facility operates pursuant to 35 Ill. Adm. Code
703.123(a) and 722.134(a), as
a large quantity generator of hazardous
waste which
is treated on-site in tanks, without a RCRA permit or interim
status.
3.
Respondent first filed a motion to dismiss which appeared to deny the allegation,
then filed affidavits that appeared to admit the allegation, and then an answer
denying the allegation.
4.
Complainant prepared the initial round of discovery requests without a clue as to
what respondent meant by all this evasive pleading.
5.
On or about May 27, 2005, Respondent made the following admission in
response to the Supplemental Request to Admit:
Respondent claims exemption from the RCRA permit requirement
pursuant to 35~llI.Adm. Code 703.123(a) and 722.134(a) with respect to
one or more wastes generated by the Guardian West facility.
6.
Supplemental interrogatories 1(a) -(j) ask a series of follow-up questions
regarding respondent’s claim of exemption under Section 722.134 for only a
portion of the facility and wastestreams. Complainant could not possibly have
asked these questions in the initial discovery request because of respondent’s
evasive pleading on this issue.
7.
In paragraph 10 of the Motion for Protective Order, respondent argues that the
issue of whether there was a hydrogen sulfide release is irrelevant. Paragraph
15 of the complaint, however, alleges a release of hydrogen sulfide, and the
answer denies that allegation.
8.
In response to the initial discovery request, respondent advanced a technical
theory claiming that the hydrogen sulfide release could not have happened.
(Response to Request for Production of Documents, Statement of Mike
Trueblood, dated 3/3/05) Although complainant intends to object to introduction
of this theory at hearing, he has asked a series of questions seeking to clarify the
evidence respondent may be intending to introduce in support of this theory
(Supplemental Interrogatories 3, 6-12, and 14). Complainant could not have
asked these questions with the initial round of discovery, since respondent only
disclosed this theory during that initial round.
9.
Supplemental lnterrogatories 2, 4, 5, 13, 15, 16, 19, and 20 are direct follow-up
questions to responses (or admissions) made during the initial round of
discovery.
10.
Supplemental Interrogatories 17 and 18 address the plant’s ventilation system.
This information is relevant and necessary to explain the distribution of the odor
observed in the event respondent is claiming that the odor originated from a
different source than the acid spill, as would appear to be necessary in light of
the position that the acid spill could not have produced hydrogen sulfide.
11.
In its Response to Supplemental Request to Admit, respondent has made
admissions which render immaterial the following questions, which Complainant
withdraws: 3(a), 7(intro), 8(intro), and 11 (a through f). Complainant still requests
a response to 3(intro), 7(a and b), 8(a) and 11 (i through q), and the remaining
Supplemental Interrogatories.
WHEREFORE complainant prays that the hearing officer deny the motion for a
protective order, and order respondent to answer the supplemental interrogatories
propounded by complainant on or about April 25, 2005.
Morton F. Dorothy
804 East Main
Urbana lL618O2
~
“9o~hi~’
217/384-1010
Morton F. Dorothy, Complainant
STATE OF ILLINOIS
)
-
)
ss
COUNTY OF CHAMPAIGN
)
AFFIDAVIT
Complainant Morton F.~Dorothy makes the following affidavit in support of his
Response to Motion For Protective Order:
Complainant requested leave to conduct supplemental discovery-during the
status conference of April 21, 2005. Respondent raised no objection. The
Hearing Officer granted leave to cOnduct supplemental discovery without
limitation as to the number of questions to be raised by interrogatory.
2.
Complainant prepared the initial round of discovery requests without a clue as to
what respondent meant by the evasive pleading with respect to paragraph 12 of
the complaint.
3.
Supplemental interrogatories 1(a) -(j) ask a series of follow-up questions
regarding respondent’s claim of exemption under Section 722.134 for only a
portion of the facility and wastestreams. Complainant could not possibly have
asked these questions in the initial discovery request because of respondent’s
evasive pleading on this issue.
4.
In response tothe initial discovery request, respondent advanced a technical
theory claiming that the hydrogen sulfide release could not have happened.
Although complainant intends to object to introduction of this theory at hearing,
he has asked a series of questions seeking to clarify the evidence respondent
may be intending to introduce in support of this theory (Supplemental
Interrogatories 3, 6-12, and 14). Complainant could not have asked these
questions with the initial round of discovery, since respondent only disclosed this
theory during that initial round.
5.
Supplemental Interrogatories 17 and 18 address the plant’s ventilation system.
This information is relevant and necessary to explain the distribution of the odor
observed in the event respondent is claiming that the odor originated from a
different source than the acid spill, as would appear to be necessary in light of
the position that the acid spill could not have produced hydrogen sulfide.
yV\4jiV~c3~
\____-
~2Q~4../
Morton F. Dorothy, Complainant
The undersigned, a notary public in and for the aforesaid County and State,
certifies that the above person appeared before me and signed the foregoing document
on the C~dayof June, 2005.
“OFFICIAL SEAL”
—
BRADLEY M. iat41~
MyNotary~f~ft~4~ssonPiIbJi~,
~
f~xpiresof’11/25fÔ~.
tiri~
~—~-------
~.
Notary Public
C)
Morton F. Dorothy
804 East Main
Urbana
IL 61802
217/384-1010
