Microsoft Word - NOF and COS . Motion for Sanctions.doc

THIS FILING SUBMITTED ON RECYCLED PAPER

NOTICE OF FILING
CERTIFICATE OF SERVICE

THIS FILING SUBMITTED ON RECYCLED PAPER

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MORTON F. DOROTHY,

)

Complainant,

)

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

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)

PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of

the Illinois Pollution Control Board Flex-N-Gate Corporation’s

MOTION FOR

SANCTIONS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT,

copy of which is herewith served upon you.

Respectfully submitted,

FLEX-N-GATE CORPORATION,

Respondent,

By:/s/ Thomas G. Safley

One of Its Attorneys

Dated: June 19, 2006

Thomas G. Safley

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

CERTIFICATE OF SERVICE

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

MOTION FOR SANCTIONS OR, IN THE ALTERNATIVE, FOR SUMMARY

JUDGMENT upon:

Ms. Dorothy M. Gunn

Clerk of the Board

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

Carol Webb, Esq.

Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

Post Office Box 19274

Springfield, Illinois 62794-9274

via electronic mail on June 19, 2006; and upon:

Mr. Morton F. Dorothy

104 West University, SW Suite

Urbana, Illinois 61801

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

prepaid, on June 19, 2006

/s/ Thomas G. Safley

Thomas G. Safley

GWST:003/Fil/NOF and COS – Motion for Sanctions

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MORTON F. DOROTHY,

)

Complainant,

)

PCB 05-49

)

FLEX-N-GATE CORPORATION,

)

an Illinois corporation,

)

Respondent.

)

MOTION FOR SANCTIONS OR,

IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

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

by and through its attorneys, HODGE DWYER ZEMAN, pursuant to 35 Ill. Admin.

Code §§ 101.500 and 101.800, and for its Motion for Sanctions or, in the Alternative, for

Summary Judgment, states as follows:

INTRODUCTION

As set forth in detail below, following the Illinois Pollution Control Board’s

(“Board”) October 20, 2005 Order (“Board Oct. 20 Order”) in this matter, Flex-N-Gate

filed an Amended Answer asserting as an Affirmative Defense that its management of

hazardous waste was exempt from permitting requirements. Flex-N-Gate also served

discovery on Complainant seeking to discover the basis of any factual disagreement

between the parties with regard to that issue. Complainant failed to validly respond to

that discovery. Flex-N-Gate filed a Motion to Compel. The Hearing Officer granted that

Motion. Complainant, in violation of the Hearing Officer’s Order, continued to fail to

validly respond to Flex-N-Gate’s discovery. In light of these actions, and Complainant’s

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

other actions in this matter, the Board should sanction Complainant by dismissing Count

I of his Complaint.

Alternatively, the Board should grant Flex-N-Gate Summary Judgment on its

Affirmative Defense. Complainant has, through discovery requests that he did answer,

clarified that Count I of his Complaint is “restricted to the issue of whether Respondent

has violated the storage time requirements for hazardous waste under the catwalk.” As is

explained below, any “hazardous waste under the catwalk” at Flex-N-Gate’s facility is

contained within a Wastewater Treatment Unit (“WWTU”). There is no accumulation

time limit for waste contained in a WWTU.

II.

THE BOARD MUST SANCTION COMPLAINANT FOR HIS

DISREGARD OF, AND FAILURE TO COMPLY WITH, THE HEARING

OFFICER’S ORDER COMPELLING HIM TO RESPOND TO

DISCOVERY, AND HIS OTHER ACTIONS.

Background

On May 27, 2005, Flex-N-Gate filed its Motion for Summary Judgment as to All

Counts of Complainant’s Complaint (“Motion for Complete Summary Judgment”). As to

Count I of Complainant’s Complaint, Flex-N-Gate sought summary judgment on the

grounds that its management of hazardous waste is conducted pursuant to exemptions

from permitting requirements, and therefore that no permit is required for Flex-N-Gate’s

facility under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §

6901,

et seq

. See

Flex-N-Gate’s Motion for Complete Summary Judgment at 19-34.

On October 20, 2005, the Board issued an Order granting Flex-N-Gate summary

judgment as to Counts II through VI of Complainant’s Complaint (pursuant to a separate

Motion for Summary Judgment that Flex-N-Gate also filed on May 27, 2005), but

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

denying Flex-N-Gate’s Motion for Complete Summary Judgment. With regard to Flex-

N-Gate’s argument as to Count I, the Board’s Order stated:

Therefore, under the Act and the Board’s RCRA regulations, the

determination as to whether a facility requires a RCRA permit depends on

site-specific facts related to the facility’s waste generation and handling.

As discussed in more detail below, because the parties disagree on whether

Flex-N-Gate met all of the necessary requirements, the Board finds a

genuine issue of material fact exists.

The Board agrees with complainant Mr. Dorothy that Flex-N-Gate bears

the burden to prove it is exempt from the requirement to obtain a RCRA

permit or interim status.

In seeking to meet that burden, Flex-N-Gate states that one of its

hazardous wastestreams is treated by equipment that meets the definition

of a WWTU and that this wastestream is exempt while it remains within

the WWTU. Flex-N-Gate states the remaining hazardous wastestreams are

exempt under the accumulation exemption because the wastes are

accumulated in containers before being transported off-site for treatment,

storage, or disposal.

Mr. Dorothy claims that Flex-N-Gate does not comply with the all of the

regulations applicable to generators. For example, Mr. Dorothy disputes

that the equipment Flex-N-Gate uses to treat one of its wastestreams

meets the definition of a WWTU. Mr. Dorothy also alleges that Flex-N-

Gate accumulated hazardous waste for longer than the time limits allowed

in Section 722.134.

Board October 20 Order at 14, 16-17.

In its October 20, 2005, Order, the Board also held that the question of whether a

party’s management of hazardous waste is allowed by an exemption to the RCRA permit

requirement must be pled as an affirmative defense, and allowed Flex-N-Gate to amend

its Answer to state such an affirmative defense. Id.

at 19-20. In light of this Order, Flex-

N-Gate on November 15, 2005, filed its Amended Answer, which asserted as an

affirmative defense that Flex-N-Gate is exempt from the RCRA permit requirement, in

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

part under RCRA’s WWTU exemption. See Flex-N-Gate’s Amended Answer at 11-14.

Complainant never filed any response to Flex-N-Gate’s Affirmative Defense.

In addition, in an attempt to understand what issues of material fact might exist

between Flex-N-Gate and Complainant on this issue

in order to enable Flex-N-Gate to

prepare for hearing accordingly

Flex-N-Gate served discovery requests on

Complainant. Specifically, on January 18, 2006, Flex-N-Gate served its Interrogatories

and Requests for Production on Complainant, copies of which are attached hereto as

Exhibits A

and B.

On February 14, 2006, Complainant provided his “Response” to Flex-N-Gate’s

Interrogatories, a copy of which is attached hereto as Exhibit C

. However, Complainant

refused to answer the majority of Flex-N-Gate’s Interrogatories, in part based on the

assertion that Flex-N-Gate had never raised the WWTU exemption

despite Flex-N-

Gate’s Affirmative Defense doing exactly that

and in part relying on baseless

objections. See, e.g., Exhibit C at 2, “answer” to Interrogatory No. 5. Furthermore,

Complainant failed to respond at all to Flex-N-Gate’s Requests for Production.

On April 13, 2006, after repeated attempts to secure Complainant’s cooperation,

Flex-N-Gate filed its Motion to Compel. See

Flex-N-Gate’s Motion to Compel and the

communications between Flex-N-Gate’s counsel and Complainant attached thereto as

exhibits. Complainant filed no Response to that Motion, and on May 9, 2006, the

Hearing Officer granted the Motion, ordering Complainant to answer Flex-N-Gate’s

discovery requests.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Complainant has since produced documents in response to Flex-N-Gate’s

Requests for Production. These documents, which were due on February 14, 2006, were

ultimately received on May 11, 2006. In addition, on May 11, 2006, Flex-N-Gate

received Complainant’s “Amended Response” to the Interrogatories propounded on

January 18, 2006. See

Amended Response to Interrogatories, a copy of which has been

attached hereto as Exhibit D

In his “Amended Response,” Complainant has expressly violated the Hearing

Officer’s Order granting Flex-N-Gate’s Motion to Compel. Specifically, while

Complainant withdraws his contention that Flex-N-Gate had not raised the WWTU

exemption, Complainant continues to refuse to answer the majority of Flex-N-Gate’s

Interrogatories, asserting only the same groundless objections. See, e.g.

, Exhibit D at 2,

“amended answer” to Interrogatory No. 5.

Finally, on March 20, 2006, during a telephonic status conference, Complainant

indicated that he intended to file a Motion for Leave to Amend Complaint and asked the

Hearing Officer for time to do so. See

March 20, 2006, Hearing Officer Order. The

Hearing Officer granted Complainant sixty days, or until May 19, 2006, to file such a

Motion. Complainant never filed his Motion.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

THE BOARD MUST SANCTION COMPLAINANT FOR HIS

DISREGARD OF AND FAILURE TO COMPLY WITH THE

HEARING OFFICER’S ORDER AND HIS OTHER ACTIONS

It is axiomatic that the Board has authority to order sanctions against parties in

matters pending before it. Section 101.800(a) of the Board’s procedural rules provides in

relevant part that “[i]f any person unreasonably fails to comply with any provision of 35

Ill. Adm. Code 101 through 130 or any order entered by the Board or the hearing officer

including any subpoena issued by the Board, the Board may order sanctions.” 35 Ill.

Admin. Code § 101.800(a). (Emphasis added.)

Further, the Board’s procedural rules provide criteria for assessing the severity of

the sanction to impose. Specifically,

In deciding what sanction to impose the Board will consider factors

including: the relative severity of the refusal or failure to comply; the past

history of the proceeding; the degree to which the proceeding has been

delayed or prejudiced; and the existence or absence of bad faith on the part

of the offending party or person.

35 Ill. Admin. Code § 101.800(c).

Consideration of these factors makes it clear that the Board must impose a serious

sanction on Complainant.

Complainant’s Actions in these Proceedings are Intolerable

and Demonstrate Bad Faith, Ultimately Prejudicing Flex-N-

Gate in Causing Unreasonable Delay, the Incurrence of

Otherwise Unnecessary Attorney’s Fees, and in Denying Flex-

N-Gate the Ability to Defend Itself.

Complainant’s Refusals to Comply are Severe

Complainant’s refusals to comply with the Board’s rules and the Hearing

Officer’s Order are severe. First, for months, Complainant simply ignored Flex-N-Gate’s

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Requests for Production. The Board’s rules of course require that parties respond to

discovery requests, at least with a valid objection. See, e.g.

, 35 Ill. Admin. Code §§

101.616, 101.620. However, Complainant did not pose any objection or seek any

extension of time with regard to the Requests for Production. He simply ignored them

and did not answer at all, until being compelled to do so.

Second, Complainant’s “response” to Flex-N-Gate’s Interrogatories blatantly

sought to avoid the requirements of the Board’s discovery rules. As discussed above,

when asked questions about Flex-N-Gate’s WWTU,

Complainant responded that Flex-N-

Gate had never argued that it had a WWTU, despite the fact that Flex-N-Gate had just

filed an Amended Answer asserting the WWTU exemption as an affirmative defense

(not

to mention the fact that Flex-N-Gate has raised the WWTU exemption throughout this

litigation). To interpose such a baseless “objection” is sanctionable. Further, as

discussed in Flex-N-Gate’s Motion to Compel, and as the Hearing Officer found by

granting that Motion, Complainant’s other objections were meritless as well.

Third, and most severely, after Flex-N-Gate was forced to file a Motion to

Compel, and the Hearing Officer granted that Motion,

Complainant ignored the Hearing

Officer’s Order and (with one exception) made the same objections to Flex-N-Gate’s

Interrogatories that he had made before

. If the Complainant will simply ignore the

Hearing Officer’s Orders, no other alternative exists but for the Board to sanction him.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

The Past History of this Proceeding Demonstrates that

Sanctions are Warranted.

The past history of this proceeding also demonstrates that the Board must sanction

Complainant.

As the Board is aware, because of Complainant’s previous actions in this case,

Flex-N-Gate was forced to move the Board:

(1)

to strike multiple improper affidavits filed by Complainant;

(2)

to admonish Complainant to stop filing improper affidavits;

(3)

to admonish Complainant to stop making unsupported allegations of fact,

including unsupported allegations of criminal actions by Flex-N-Gate

employees;

(4)

to admonish Complainant to maintain proper decorum before the Board;

and,

(5)

to admonish Complainant generally to comply with the Board’s rules.

See

Flex-N-Gate’s Motion to Strike Affidavits Filed and Unsupported Statements Made

in Support of Complainant’s Summary Judgment Filings and Motion for Admonishment

of Complainant (“Motion to Strike and Admonish”). (In the interest of brevity, Flex-N-

Gate does not repeat the lengthy list of Complainant’s failures to comply with Board

rules set forth in that Motion, but rather, incorporates that Motion herein, and refers the

Board to pages 21-26 of that Motion.)

On October 20, 2005, the Board granted Flex-N-Gate’s Motion to Strike and

Admonish, found that Complainant had disregarded the Board’s rules, and admonished

the Complainant to begin complying with those rules. See Board October 20 Order at 9.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

In addition, Complainant served more than 120 interrogatories on Flex-N-Gate,

without seeking or obtaining leave of the Hearing Officer as required by 35 Ill. Admin.

Code § 101.620(a), forcing Flex-N-Gate to file a Motion for Protective Order. See Flex-

N-Gate’s Motion for Protective Order.

Despite the Board’s admonishment, Complainant has continued to ignore the

Board’s rules. Thus, Complainant’s failure to respond at all to Flex-N-Gate’s Requests

for Production until compelled to do so, Complainant’s interposing of baseless objections

to Flex-N-Gate’s Interrogatories, and Complainant’s ignoring of the Hearing Officer’s

Order compelling Complainant to answer those Interrogatories are not isolated lapses, but

only the latest in a series of instances in which Complainant has played games in these

proceedings. This also demonstrates that the Board must sanction Complainant.

Complainant’s Actions have Delayed and Prejudiced this

Proceeding.

Complainant’s lack of cooperation has clearly delayed these proceedings. By

failing to comply with basic discovery rules, and then the Hearing Officer’s Order

compelling him to comply with those rules, these proceedings have been delayed by at

least four months. That is, Complainant’s responses to discovery requests in this matter

were due on February 14, 2006. As of the time of this filing, Flex-N-Gate has yet to

receive adequate responses from the Complainant to all of its Interrogatories.

Complainant’s request to the Hearing Officer for time to file a Motion for Leave

to Amend his Complaint, and then failure to file such a Motion, also has delayed these

proceedings. As discussed above, this essentially put the case on hold for two months,

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

leaving Flex-N-Gate in limbo as to what issues it would need to address in its defense of

this case. At the end of this period, no Motion for Leave to Amend was filed.

Likewise, Complainant’s failure to respond to Flex-N-Gate’s Interrogatories has

further prejudiced Flex-N-Gate because it has deprived Flex-N-Gate of the ability to

understand why Complainant alleges that Flex-N-Gate is in violation of the law, and thus,

to prepare its defense accordingly. Count I of Complainant’s Complaint alleges that

Flex-N-Gate is required to have a RCRA permit, and violated the law by operating

without such a permit. See

Complainant’s Complaint. In light of this allegation, and of

Flex-N-Gate’s Affirmative Defense to this allegation, Flex-N-Gate’s Interrogatories

essentially ask Complainant two things:

First, what do you allege Flex-N-Gate did that required a permit?

Second, why do you think that Flex-N-Gate is not exempt from the permit

requirement?

See

Flex-N-Gate’s Interrogatories, attached hereto as Exhibit A.

As discussed further below in the context of Flex-N-Gate’s alternative Motion for

Summary Judgment, Complainant appears to some extent to answer the first question.

As to the second question, however, Complainant simply objects, even after the Hearing

Officer ordered him to answer. Thus, Flex-N-Gate has no idea why Complainant thinks

that the equipment at Flex-N-Gate’s facility, which Flex-N-Gate considers to be a

WWTU, is not a WWTU. This means that Flex-N-Gate does not know what evidence it

needs to present at Hearing, but rather, will simply have to assume what facts are at issue,

bring witnesses to testify as to those facts, and hope that other facts as to which it does

not have witnesses prepared are not at issue. If such other facts are at issue at Hearing,

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Flex-N-Gate will have no choice but to move for the Hearing to be rescheduled to allow

it time to prepare its defense, which will result in further delay.

Further, in light of the above, Flex-N-Gate will be forced to produce witnesses at

Hearing to testify about facts which may not be at issue at all. For example, perhaps

Complainant agrees that “wastewater at the Facility is transferred through piping between

. . . various pieces of equipment” identified in Flex-N-Gate’s Interrogatories. See Exhibit

A at 11, Interrogatory No. 16. However, Complainant has refused to answer Flex-N-

Gate’s Interrogatory that seeks to explore this issue, even after the Hearing Officer

ordered him to do so. See

Exhibit D at 3, “response” to Interrogatory No. 16.

Accordingly, Flex-N-Gate has no choice but to produce a witness at hearing to testify

regarding such piping, in case Complainant disagrees with Flex-N-Gate on this factual

issue. This is a waste of the parties’ and the Board’s time and resources, and will only

cause further delay. Additionally, this prejudices Flex-N-Gate by forcing it to spend time

and attorney fees preparing testimony and evidence on questions that may not be at issue,

when such questions could have been resolved if Complainant simply answered Flex-N-

Gate’s Interrogatories.

Finally, of course, Flex-N-Gate has been prejudiced by having to incur attorney’s

fees to file its Motion to Compel and now, this Motion.

Complainant Clearly has Acted in Bad Faith.

Finally, Complainant clearly has acted in bad faith. First, Flex-N-Gate submits

that Complainant’s multiple failures to comply with the Board’s rules, and Complainant’s

multiple unsupported allegations of criminal activity by Flex-N-Gate’s employees, which

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

previously led the Board to admonish Complainant, constituted bad faith. See discussion

above.

Second, as also discussed above, when Complainant initially “responded” to Flex-

N-Gate’s Interrogatories regarding Flex-N-Gate’s WWTU on February 14, 2006, he

“objected” in part on the grounds that the information sought by those interrogatories was

“irrelevant because neither the Complaint nor Answer has alleged that any portion of the

facility is a ‘wastewater treatment unit,’” a “tank,” etc. See Exhibit C. (Emphasis

added.) The WWTU issue had been specifically discussed in the Board’s October 20

Order, however, and, pursuant to that Order, on November 15, 2005 (three months before

Complainant’s initial “responses”) Flex-N-Gate had filed its Amended Answer

specifically asserting the WWTU exemption as an Affirmative Defense

. See Flex-N-

Gate’s Amended Answer. For Complainant to assert this “objection” in the face of the

explicit language of Flex-N-Gate’s Affirmative Defense constitutes bad faith and is

clearly nothing more than an effort to delay this matter and avoid the requirements of the

Board’s discovery rules.

Third, Complainant acted in bad faith with regard to Flex-N-Gate’s Motion to

Compel. Again, Complainant did not file any response to that Motion. Rather, the

Hearing Officer’s May 9, 2006 Order states:

On April 13, 2006, respondent filed a motion to compel complainant to

produce discovery. Complainant advised the hearing officer that he does

not oppose the motion. Accordingly, the motion is granted. Complainant

hopes to mail the requested items today.

See

Hearing Officer May 9, 2006 Order. (Emphasis added.)

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

That is, Complainant told the Hearing Officer that he did not oppose the Motion

to Compel but then continued to refuse to answer Flex-N-Gate’s Interrogatories for the

same reasons he had stated in his initial “response” to those Interrogatories. Cf. Exhibit

, Exhibit D. Thus, Complainant clearly did oppose the Motion to Compel, and never

intended to answer the Interrogatories. However, instead of arguing his objections to the

Hearing Officer in a response to the Motion, so that they could be ruled on, Complainant

misled the Hearing Officer into thinking that he intended to answer the Interrogatories,

and then asserted the same objections. This constitutes bad faith and clearly was only

meant to delay this matter further.

Fourth, as also discussed above, during a telephonic status conference on

March 20, 2006, Complainant indicated that he intended to file a Motion for Leave to

Amend Complaint and asked the Hearing Officer for time to do so. See

March 20, 2006,

Hearing Officer Order. The Hearing Officer granted Complainant sixty days, or until

May 19, 2006, to file such a Motion, effectively putting the case on hold and putting

Flex-N-Gate in limbo in preparing its defense. By the end of the sixty day period,

however, Complainant had not filed a Motion for Leave to Amend, and now, almost a

month later, he still has not done so. Thus, Complainant apparently has changed his

mind regarding filing such a Motion. However, Complainant never

filed anything

notifying the Board, the Hearing Officer, or Flex-N-Gate that he had changed his mind

and that this case could move forward on Count I. (Nor, for that matter, did Complainant

move the Board or the Hearing Officer for an extension of the May 19, 2006 deadline to

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

file a Motion for Leave.) This also constitutes bad faith and clearly was meant simply to

delay this matter.

The Board has It within Its Authority to Dismiss Count I of

Complainant’s Complaint as a Sanction for Complainant’s

Disparagement of these Proceedings, and Should Do So

Section 101.800(b)(3) of the Board’s rules provides that as a sanction, an

“offending person may be barred from maintaining any particular claim, counterclaim,

third-party complaint, or defense” relating to “any issue to which the refusal or failure [at

issue] relates.” 35 Ill. Admin. Code § 101.800(b)(2), (3). Here, Flex-N-Gate’s discovery

requests, and the Hearing Officer’s Order granting Flex-N-Gate’s Motion to Compel,

relate directly to Count I of Complainant’s Complaint. Thus, as a sanction for

Complainant’s behavior, the Board should bar Complainant from maintaining the claim

set forth in that Count.

The Board has not hesitated to impose the most serious sanctions in cases before

it. In Logsdon v. South Fork Gun Club

, the Board struck from the record the

respondent’s closing brief as a sanction for failing to comply with the hearing officer’s

order. Logsdon v. South Fork Gun Club

, PCB 00-177, 2002 Ill. ENV. LEXIS 692, at *5

(Ill.Pol.Control.Bd. Dec. 19, 2002). Additionally, the Board has dismissed proceedings

entirely for failing to comply with its order and relevant procedural rules. IEPA v. City

of Oregon, PCB 78-37, 1980 Ill. ENV. LEXIS 279, at *2 (Ill.Pol.Control.Bd. Dec. 4,

1980). See

also, IEPA v. Celotex Corp., PCB 79-145, 1986 Ill. ENV. LEXIS 356, at *5

(Ill.Pol.Control.Bd. July 2, 1986) (dismissing one count of the complaint as a sanction).

Further, the Illinois Appellate Court has upheld the Board’s dismissal of a Petition as a

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

sanction. Modine Mfg. Co. v. Pollution Control Bd., 192 Ill. App. 3d 511, 518, 548

N.E.2d 1145, 1150 (2d Dist. 1990).

While the Board has not previously been reticent in imposing sanctions, it has

stated that it will consider the nature and effect of the aberrant actions prior to the

imposition of sanctions:

In determining whether sanctions are warranted, we are to consider

whether a hearing officer or Board order was violated and we also may

consider whether the complained-of actions demonstrate a deliberate and

pronounced disregard for our jurisdiction’s rules.

International Union,

et al.

v. Caterpillar Inc.

, PCB 94-240, 1996 Ill. ENV. LEXIS 579, at

*10 (Ill.Pol.Control.Bd. August 1, 1996). Clearly, as stated above, Complainant’s actions

in this matter amply satisfy this standard. Even after the Board admonished Complainant

to comply with the Board’s rules, Complainant ignored discovery requests and blatantly

violated a hearing officer order. These and other actions by Complainant clearly

“demonstrate a deliberate and pronounced disregard” for the Board and its rules.

As discussed above, the Board is not shy about imposing sanctions where

circumstances warrant. In this case, Complainant has demonstrated an escalating pattern

of disregard for these proceedings. What began as infractions of the procedural rules has

graduated to violation of orders issued by the Hearing Officer and ultimately has

prejudiced Flex-N-Gate as discussed above. Therefore, based upon the foregoing, Flex-

N-Gate requests that the Board exercise its authority and dismiss Count I of the

Complaint as a sanction for Complainant’s actions.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

III.

ALTERNATIVLY, THE BOARD SHOULD GRANT SUMMARY

JUDGMENT TO FLEX-N-GATE ON ITS AFFIRMATIVE DEFENSE.

In the alternative, if the Board declines to dismiss Count I as a sanction, the Board

should grant summary judgment to Flex-N-Gate on its Affirmative Defense.

On October 20, 2005, the Board issued an Order in this matter addressing, inter

alia

, Flex-N-Gate’s assertion that it was not required to obtain a RCRA permit because of

the operation of the WWTU exemption. The Board found that this issue would be

properly pled as an affirmative defense and granted Flex-N-Gate leave to amend its

Answer accordingly. See

Board Oct. 20 Order at 20.

Pursuant to the Board’s Order, Flex-N-Gate filed its Amended Answer on

November 15, 2005. Part and parcel of Flex-N-Gate’s Amended Answer was the

elucidation of its WWTU argument as an affirmative defense to Count I of the

Complaint. See

Amended Answer at 11.

Complainant filed no response to Flex-N-Gate’s Affirmative Defense. In

response to Flex-N-Gate’s Interrogatories, however, Complainant stated in relevant part

as follows:

INTERROGATORY NO. 20: Please provide the name and address of

each witness who will testify at any hearing in this matter and state the

subject of each witness’s testimony.

ANSWER: As it now stands, the Complaint appears to be restricted to the

issue of whether Respondent has violated the storage time requirements for

hazardous waste under the catwalk. Under these circumstances, the

Complainant will testify . . . .

See

Flex-N-Gate’s Interrogatories and Complainant’s Amended Responses thereto,

attached as Exhibits A

and D. (Emphasis added.)

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Background

Facts Pled in Flex-N-Gate’s Affirmative Defense.

As just noted, Complainant never responded to Flex-N-Gate’s Affirmative

Defense. Thus, it is Flex-N-Gate’s understanding that Complainant does not dispute the

factual allegations contained therein. Those allegations are as follows:

•

Flex-N-Gate’s Guardian West facility relies in part on th[e] Wastewater

Treatment Unit (“WWTU”) exemption to the RCRA permit requirement.

•

Flex-N-Gate’s Guardian West facility contains tanks and other

associated equipment in which wastewater is treated (the “facility

WWTU”).

•

The facility WWTU treats wastewater generated by various processes at

the Facility, including, but not limited to, wastewater from the “chrome

plating line” (identified in paragraph four of Complainant’s Complaint)

which is the subject of this matter.

•

Flex-N-Gate’s Guardian West facility has been issued authorization to

discharge treated wastewater from the facility WWTU to the Urbana

Champaign Sanitary District pursuant to 35 Ill. Admin. Code § 310.

•

The facility WWTU generates and accumulates a wastewater treatment

sludge.

•

The floor of the room at the Facility in which the plating line is located

(the “Plating Room”) is coated with an epoxy and is sloped towards the

center of the room, where two concrete pits are located.

•

The Plating Room floor is deliberately designed to convey material which

falls from the plating line to the floor into the pits in the center of the floor.

•

The pits are constructed of concrete and are stationary devices.

•

Material that is collected in the pits in the Plating Room floor is conveyed

to tanks for treatment via hard-piping and associated pumps and other

ancillary equipment.

See

Amended Answer at 14-15 (Affirmative Defense ¶¶9, 11-14, 16-19).

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Additional Facts in Support of Flex-N-Gate’s Motion for

Summary Judgment on its Affirmative Defense.

As noted above, in response to discovery, Complainant stated that his current

Complaint is “restricted to the issue of whether Respondent has violated the storage time

requirements for hazardous waste under the catwalk” at its Facility. See

discussion

above. With this understanding, in addition to the facts set forth in Flex-N-Gate’s

Affirmative Defense

which Complainant apparently does not dispute

the following

facts support Flex-N-Gate’s Motion for Summary Judgment on its Affirmative Defense.

At the Facility, Flex-N-Gate primarily manufactures bumpers for vehicles.

Complaint at ¶4. The manufacturing process includes a Nickel/Chromium Electroplating

Line (“Electroplating Line”) in which steel bumpers are cleaned, electroplated with

several layers of nickel, electroplated with chromium, and rinsed. Id.

The cleaning,

plating and rinsing operations take place in open-top tanks holding up to 10,000 gallons

of various chemicals in water solution. Id. at ¶5. The tanks are arranged in two rows,

with a catwalk between the rows to access the tops of the tanks. Id. The diagram

attached hereto as Exhibit E

roughly illustrates the layout of the Electroplating Line.

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

, at ¶3.

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

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

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

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

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

at ¶6. The

Mr. Rice’s executed affidavit will be substituted when it is received.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

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

tank, the solution that remains on the bumpers after removal from a tank may fall from

the bumpers and land on the floor of the room in which the Line is located (hereinafter

“Plating Room”). Id.

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

design for plating operations. Affidavit of Kevin Jeffries (“Jeffries Aff.”) attached hereto

as Exhibit G

, at ¶3.

The floor of the Plating Room is coated with epoxy and is sloped towards the

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

The purpose of the slope of the floor is to direct the solution which falls from the

bumpers and lands on the floor into the “pits” in the center of the floor. Id. at ¶10. The

purpose of the coating on the floor is to make the floor impervious to the materials that

fall on it so that such materials are directed into the “pits” rather than soaking into the

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

material that has fallen onto the floor into the “pits.” Id.

at ¶12.

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

falls onto the floor into piping which leads to equipment in which wastewater from the

Facility is treated (see

further discussion below). Id. at ¶13. These pumps do not run

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

pump when the material in the pit reaches a pre-determined level. Id.

at ¶15. This

normally occurs several times each day. Id.

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

material which falls to the floor would remain in the pit normally would be a few hours.

Id. at ¶17.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Again, piping leads from the two “pits” in the center of the Plating Room floor to

numerous pieces equipment in which wastewater from the Facility is treated. Id.

at ¶13.

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

been removed), the material out of which such equipment is constructed, and the purpose

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

piece of equipment:

Piece of Equipment

Material Out of Which the

Equipment is Constructed

Purpose of Equipment

Equalization Tank

Fiberglass Reinforced Plastic

(“FRP”)

Serves as a collection point for

wastewater before it is

transferred to the outside

equalization tanks.

Outside EQ Tanks 1

and 2

Mild Steel

These tanks serve as

equalization (mixing) and surge

storage during times when the

WWTP could otherwise be

overwhelmed with too much

flow from the wet processes.

Chrome

Reduction/PH

Adjustment

FRP

PH adjusted and reducing agent

added to reduce hexavalent

chromium to trivalent

chromium in preparation for

hydroxide precipitation.

pH Adjustment

FRP

Caustic or acid is added to

achieve optimum pH for

precipitating dissolved cations.

Reagents are also added here to

begin the process of

coagulation.

Flocculation Tank

Mild Steel

Large charged particles are

added to “floc” smaller

coagulated particles together so

that solids will settle out in the

Lamella.

Lamella

Mild Steel

Designed to physically separate

solids from liquids. From here

liquids flow to the sand filters

and solids are pumped to the

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

sludge holding tank.

from the Lamella, liquids enter:

Sand Filters

Mild Steel

Serve as final “polishing” step

for any lighter solids that may

not settle out in Lamella.

Final pH Adjustment FRP

If necessary, automatically adds

acid or caustic to adjust pH to

permit required limits prior to

discharge to POTW.

from the Lamella, solids enter:

Sludge Holding

Tank

Mild Steel

This Sludge Holding Tank

serves to control the flow of

sludge into the Filter Presses.

Filter Presses

Mild Steel

These Filter Presses dewater

sludge. Liquids removed from

the sludge is recirculated to

equipment discussed above.

Sludge Dryer

(prior

to March 2005)

Mild Steel

This Dryer dewatered the

sludge.

Jeffries Aff. at ¶4. (All of the equipment in this table is referred to herein as the Facility’s

“Wastewater Treatment Equipment.”)

All of this equipment is located on-site, within the boundaries of the Facility.

Jeffries Aff. at ¶6. The diagram attached hereto as Exhibit H roughly illustrates the

layout of the wastewater treatment system. Id. at ¶7.

Following treatment in the Wastewater Treatment Equipment, liquids are

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

Champaign and Urbana, Illinois. Id.

at ¶8; Complaint at ¶10. The wastewater treatment

equipment also generates wastewater treatment sludge. Jeffries Aff. at ¶¶4,9. While this

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

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

sludge is located in the wastewater treatment equipment, Flex-N-Gate considers the

sludge to be exempt from RCRA regulation. Id.

at ¶11; discussion below. Following

dewatering, sludge is placed into a satellite accumulation container in preparation for

placement into 90-day accumulation containers, where it is accumulated before it is

shipped off-site for recycling. Jeffries Aff. at ¶9. Attached hereto as Exhibit I

is an

example of a manifest by which Flex-N-Gate has had such sludge transported off-site

recycling. Id.

at ¶10.

Standard for Granting Summary Judgment

Summary judgment on an affirmative defense is proper:

[I]f the summary judgment movant is the defendant who has raised an

affirmative defense . . . the materials need only establish the defendant's

factual position on the affirmative defense raised. Once the movant has

carried this burden, the respondent may not rely on the factual issues

raised by the pleadings, but must submit affidavits or refer to depositions

or admissions on file which present a contrary version of the facts. While

parties opposing a summary judgment motion are not required to prove

their case, they are under a duty to present a factual basis which would

arguably entitle them to judgment in their favor, based on the applicable

law.

Soderlund Bros. v. Carrier Corp.

, 278 Ill. App. 3d 606, 615, 663 N.E.2d 1, 7 (1st Dist.

1995) (upholding grant of summary judgment to defendant on affirmative defense).

(Citations omitted.)

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

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

law.” Cassens and Sons, Inc. v. Illinois EPA, PCB No. 01-102, 2004 Ill. ENV LEXIS

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

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

§ 101.516(b).

In Cassens

, the Board stated as follows regarding motions for summary judgment:

In ruling on a motion for summary judgment

the Board “must consider

the pleadings, depositions, and affidavits strictly against the movant and in

favor of the opposing party.” Id.

[i.e., Dowd & Dowd, Ltd., cited above]

Summary judgment “is a drastic means of disposing of litigation,” and

therefore it should be granted only when the movant’s right to the relief

“is clear and free from doubt.” Id.

, citing Purtill v. Hess, 111 Ill. 2d 299,

240, 489 N.E.2d 867, 871 (1986). However, a party opposing a motion for

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

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

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

Cassens

, 2004 Ill. ENV LEXIS at 11-12.

The Illinois Supreme Court’s Purtill decision, which the Board cites in Cassens,

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

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 party cannot rely on his pleadings alone to raise issues of

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

for summary judgment which are not contradicted by counteraffidavit are

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.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

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

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

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

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

, PCB

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

Argument

Again, Complainant’s claim is that Flex-N-Gate “violated the storage time

requirements for hazardous waste under the catwalk” in the Plating Room at its Facility.

See

discussion above. As its affirmative defense to this claim, Flex-N-Gate has raised the

WWTU exemption to the RCRA permitting requirement. That is, it is Flex-N-Gate’s

position that:

(1)

the floor of the plating room (i.e., in Complainant’s language, the area

where “hazardous waste” is located “under the catwalk”) is part of a

WWTU;

(2)

there are no “storage time requirements” that apply to materials

(hazardous waste or otherwise) contained in a WWTU;

(3)

therefore, Flex-N-Gate could not have violated, and did not violate, any

“storage time requirements for hazardous waste under the catwalk”; and,

(4)

Flex-N-Gate’s management of waste in its WWTU is otherwise proper

and does not require a RCRA permit.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

The Facility’s Wastewater Treatment System Meets the

Definition of “Wastewater Treatment Unit” under RCRA.

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

“a device of which the following is true”:

It is part of a wastewater treatment facility that has an NPDES permit

pursuant to 35 Ill. Adm. Code 309 or a pretreatment permit or

authorization to discharge pursuant to 35 Ill. Adm. Code 310; and

It receives and treats or stores an influent wastewater that is a hazardous

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

accumulates a wastewater treatment sludge which is a hazardous waste as

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

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

Code 721.103; and

It meets the definition of tank or tank system in this Section.

35 Ill. Admin. Code § 720.110.

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

“wastewater treatment unit” under RCRA if it satisfies the following three elements:

(1)

It is part of a wastewater treatment facility that has

(a)

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

(b)

a pretreatment permit or authorization to discharge pursuant to 35

Ill. Adm. Code 310; and

(2)

(a)

receives and treats or stores an influent wastewater that is a

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

(b)

generates and accumulates a wastewater treatment sludge which is

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

(c)

treats or stores a wastewater treatment sludge which is a hazardous

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

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

(3)

It meets the definition of tank or tank system.

Id.

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

The Wastewater Treatment Equipment “is Part of a

Wastewater Treatment Facility that has . . . Authorization

to Discharge Pursuant to 35 Ill. Adm. Code 310.”

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

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

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

the Facility uses to treat wastewater satisfies this element.

First, this equipment is “part of a wastewater treatment facility.” For purposes of

the definition of WWTU, the term “facility” means “[a]ll contiguous land and structures,

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

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

infra

, the

equipment that makes up the Facility’s wastewater treatment system is all located on-site,

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

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

Second, the Facility has an “authorization to discharge pursuant to 35 Ill. Adm.

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

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

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

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

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

approved pretreatment program. The authorization may consist of a

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

pretreatment program.

35 Ill. Admin. Code § 310.110.

Complainant admits in his Complaint that the Facility discharges “[t]reated

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

[“UCSD”].” Complaint at 2, ¶10. Accord

, Jeffries Aff. at ¶8. The wastewater that the

Facility treats and discharges to the UCSD includes wastewater from the Plating Room

floor. Id. at ¶12. And, the UCSD is a POTW; that is, it comprises “devices and systems

used in the storage, treatment, recycling, and reclamation of municipal or industrial

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

this case, the Cities of Urbana and Champaign, Illinois. See

Exhibit J (Illinois EPA

Public Notice and NPDES Fact Sheet regarding UCSD); 35 Ill. Admin. Code § 310.110

(definitions of “POTW,” “treatment works”). Finally, the UCSD has authorized Flex-N-

Gate’s discharge. See UCSD authorization, a copy of which is attached hereto as Exhibit

K. Jeffries Aff. at ¶13.

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

element of the definition of WWTU because it “is part of a wastewater treatment facility

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

Ill. Admin. Code § 720.110 (defining WWTU).

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

The Equipment “Generates and Accumulates a Wastewater

Treatment Sludge Which is a Hazardous Waste as Defined

in 35 Ill. Adm. Code 721.103.”

The second element of the definition of “wastewater treatment unit” is, in relevant

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

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

35 Ill. Admin.

Code § 720.110. The equipment here also satisfies this element.

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

accumulate wastewater treatment sludge. Jeffries Aff. at ¶¶4, 9. As discussed below, this

sludge is a hazardous waste as defined in 35 Ill. Adm. Code § 721.103. Id. at ¶14;

accord

, Complaint at 2, ¶10.

Section 721.103(a) provides in relevant part that:

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

following is true of the waste:

It is not excluded from regulation as a hazardous waste

under Section 721.104(b); and

It meets any of the following criteria:

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

excluded from the lists in Subpart D of this Part

under 35 Ill. Adm. Code 720.120 and 720.122.

35 Ill. Admin. Code § 721.103(a).

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

hazardous waste under Section 721.104(b).” See

35 Ill. Admin. Code § 721.104(b).

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

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

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

Wastewater treatment sludges from electroplating operations except from

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

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

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

cleaning/stripping associated with tin, zinc, and aluminum plating on

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

35 Ill. Admin. Code § 721.131(a).

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

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

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

721.121(a) do not apply.

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

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

Aff. at ¶15. The Board can take official notice that Flex-N-Gate has not applied to the

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

720.122. 35 Ill. Admin. Code § 101.630.

Thus, again, the equipment here satisfies the second element of the definition of

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

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

The Equipment “Meets the Definition of Tank or Tank

System.”

The third element of the definition of “wastewater treatment unit” is whether the

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

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

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

these definitions.

Section 720.110 defines “tank” as:

a stationary device, designed to contain an accumulation of hazardous

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

concrete, steel, plastic) which provide structural support.

Id.

Section 720.110 defines “tank system” as:

a hazardous waste storage or treatment tank and its associated ancillary

equipment and containment system.

Id.

For purposes of the definition of “tank system,” Section 720.110 defines

“ancillary equipment” as:

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

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

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

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

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

Id.

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

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

(1)

it is stationary;

(2)

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

F006 sludge that the treatment of the wastewater creates;

(3)

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

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

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

(4)

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

Id.

at ¶16.

Further, the coated and sloped floor of the plating room, the pit in the center of

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

Wastewater Treatment Equipment, all piping between the pieces of Wastewater

Treatment Equipment, and the piping from the Wastewater Treatment Equipment to the

connection with the UCSD, meet the definition of “ancillary equipment,” because they all

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

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

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

site.” See

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

•

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

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

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

generation to storage or treatment tanks”);

•

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

Plating Room floor wastewater until it is pumped into pipes that lead to

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

or control the flow” of the material);

•

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

the pit into those pipes (the definition of “ancillary equipment”

specifically references “pumps”); and,

•

the piping that leads from the pit to the Wastewater Treatment Equipment,

and between the Wastewater Treatment Equipment, and from the

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

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

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

(the definition of ancillary equipment specifically references “piping”).

See

Background discussion above.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Thus, all of this equipment together meets the definition of “tank system,” i.e., “a

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

“and its associated ancillary equipment” – the plating room floor, the pits, the pumps, and

the piping. Therefore, this equipment satisfies the third element of the definition of

wastewater treatment unit.

The Equipment Constitutes a Wastewater Treatment Unit.

Complainant has not taken a position regarding whether the equipment discussed

above constitutes a WWTU. Rather, Complainant has stated:

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

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

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

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

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

treatment unit” or “elementary neutralization unit.”

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

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

WWTU for purposes of RCRA.

No “Storage Time Requirements” Apply to Waste Contained

in a WWTU.

RCRA allows generators of hazardous waste to manage that hazardous waste in

numerous ways without triggering RCRA permitting requirements or other RCRA

requirements. For example, Section 703.123(e) lists “[a]n owner or operator of an

elementary neutralization unit or wastewater treatment unit” as a person that is “not

required to obtain a RCRA permit.” 35 Ill. Admin. Code § 703.123(e). And, while Part

725 contains “Interim Status Standards for Owners and Operators of Hazardous Waste

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Treatment, Storage, and Disposal Facilities,” Section 725.110(c) lists numerous methods

by which hazardous waste can be managed as to which Part 725 “does not apply,”

including management in a WWTU. 35 Ill. Admin. Code § 725.101(c)(10). Accord 35

Ill. Admin. Code § 724.101(g).

Some of the methods by which generators can manage hazardous waste, without

triggering permitting and other requirements, have time limits. Specifically, 35 Ill.

Admin. Code § 722.134 imposes such time limits (e.g., 90 days in some cases) where:

The waste is placed in or on one of the following types of units

, and the

generator complies with the applicable requirements:

A) In containers

, . . . ;

B) In tanks, . . . ;

C) On drip pads, . . . ;or,

D) In containment buildings . . . .

35 Ill. Admin. Code § 722.134(a)(1).

The floor of the Plating Room at Flex-N-Gate’s facility is not a “container,” a

“tank,” a “drip pad,” or a “containment building.” Rather, it is part of a WWTU. See

discussion above; compare 35 Ill. Admin. Code § 720.110 (defining “container,” “tank,”

“drip pad,” “containment building,” and “wastewater treatment unit.”) Thus, no

accumulation times that Section 722.134 imposes on these other methods of managing

hazardous waste apply to the floor of the plating room.

Further, it is axiomatic that no accumulation time limit applies to a WWTU.

USEPA’s Hotline Questions and Answers, February 1995 (attached hereto as Exhibit L)

states:

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Status of WWTUs/ENUs at Generator Sites

A generator may treat hazardous waste without a permit or interim status

in an on-site accumulation unit that is in compliance with the regulations

in 262.34 (March 24, 1986; 51 FR 10146, 10168). If a generator chooses

to treat hazardous waste in an on-site wastewater treatment unit or in an

on-site elementary neutralization unit, must the generator comply with

262.34 [i.e., 722.134]?

No. A generator treating hazardous waste in an on-site wastewater

treatment unit or in an on-site elementary neutralization unit, need not

comply with 262.34, which is a conditional exemption from permitting

requirements, because these units are already exempt from certain RCRA

requirements. Specifically, wastewater treatment units and elementary

neutralization units, as defined in 260.10, are exempt from RCRA

treatment, storage, and disposal facility (TSDF) standards as well as from

permitting standards (264.1(g)(6), 265.l(c)(10), and 270.l(c)(2)(v)).

Id. (Emphasis added.)

Accord, USEPA Call Center Questions and Answers, June 2004, a copy of which

is attached hereto as Exhibit M (“Treatment sludge generated from the management of

characteristic wastewaters in a WWTU must be managed as hazardous once removed

from the tank if it exhibits a characteristic of hazardous waste.”) (Emphasis added.)

As No “Storage Time Requirements” Apply to any “Waste

under the Catwalk,” Flex-N-Gate Could Not Have Violated

Any Such Requirements.

As just set forth, no “storage time requirements” apply to the Facility’s WWTU,

which WWTU includes, but is not limited to, the floor of the Plating Room “under the

catwalk.” Thus, to the extent that any hazardous waste is present there, as Complainant

alleges, Flex-N-Gate could not have violated, and did not violate, any “storage time

requirements” as to such waste. Accordingly, to the extent that Count I of Complainant’s

Complaint is “restricted to” this issue, Flex-N-Gate has “establish[ed] [Flex-N-Gate’s]

factual position on the affirmative defense raised”; that is, Flex-N-Gate has established

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

the facts necessary to prove that the floor of the Plating Room is part of a WWTU that is

exempt from RCRA permitting requirements. See

Soderlund Bros., 278 Ill. App. 3d at

615, 663 N.E.2d at 7 (setting out the procedure for summary judgment on an affirmative

defense). Further, Flex-N-Gate is entitled to summary judgment as a matter of law,

because no accumulation time limit applies to waste contained in a WWTU. Therefore,

the Board should grant Flex-N-Gate summary judgment on Flex-N-Gate’s Affirmative

Defense.

Flex-N-Gate’s Management of Waste in its WWTU is

Otherwise Proper and Does Not Require a RCRA Permit.

Finally, as discussed above, Complainant has refused to answer Flex-N-Gate’s

discovery requests regarding why he contends that Flex-N-Gate’s wastewater treatment

system does not constitute a WWTU for purposes of RCRA. See

discussion above.

Because of this refusal, Flex-N-Gate does not know what facts are in dispute between the

parties on this issue.

In response to this Motion, Complainant may change tack and take the position

that Count I of his Complaint is not now “restricted to the issue of whether Respondent

has violated the storage time requirements for hazardous waste under the catwalk,” but

somehow is based on some other alleged violation involving the Plating Room floor.

This would conflict with Complainant’s responses to Flex-N-Gates Interrogatories that he

did answer. See

Complainant’s Amended Responses to Interrogatories, attached hereto

as Exhibit D. If he does so, however, Flex-N-Gate still is entitled to summary judgment.

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

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

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

in violation of Section 21(f) of the Act and 35 Ill. Adm. Code § 703.121(a).” Complaint,

Count 1, ¶1; Complainant’s Response to Motion to Dismiss, ¶¶3, 4. However, WWTUs

are exempt from the RCRA permitting requirement. 35 Ill. Admin. Code § 703.123(e).

Accord

, 35 Ill. Admin. Code §§ 724.101(g), 725.101(c). In Flex-N-Gate’s case, its

WWTU includes the floor of the Plating Room. See discussion above. Thus, as set forth

in Flex-N-Gate’s Affirmative Defense, with regard to waste allegedly on that floor, Flex-

N-Gate, by virtue of this exemption, cannot have violated Section 21(f) of the Act or 35

Ill. Admin. Code § 703.121(a) by operating without a RCRA permit, as Complainant

alleges.

IV.

CONCLUSION

WHEREFORE, Respondent FLEX-N-GATE CORPORATION, by its attorneys

HODGE DWYER ZEMAN, moves the Illinois Pollution Control Board to sanction

Complainant by dismissing Count I of his Complaint, or, alternatively, to grant Flex-N-

Gate summary judgment on its Affirmative Defense, and to award FLEX-N-GATE

CORPORATION all other relief just and proper in the premises.

Respectfully submitted,

FLEX-N-GATE CORPORATION,

Respondent,

Dated: June 19, 2006

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

GWST:003/Fil/Motion for Sanctions

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

BEFORE 

THE ILLINOIS POLLUTION CONTROL BOARD

MORTON F. DOROTHY,     

)

Complainant,       

)

v.

)

PCB No. 05-49

FLEX-N-GATE CORPORATION,   

)

an Illinois corporation,           

)

Respondent.        

)

FLEX-N-GATE CORPORATION'S

INTERROGATORIES 

TO COMPLAINANT

NOW COMES Respondent FLEX-N-GATE 

CORPORATION ("Flex-N-Gate"),

by its attorneys, HODGE 

DWYER ZEMAN, and pursuant to 35 Ill. Admin. Code 

§

101.620, propounds the following Interrogatories 

on Complainant, MORTON F.

DOROTHY (hereinafter "Complainant"), 

to be answered in accordance 

with the Illinois

Pollution Control 

Board's procedural rules within 

twenty-eight (28) days of the date 

of

service hereof.

INSTRUCTIONS

(a)   The 

Board's procedural rules require you 

to serve your "answers and

objections, if any" to 

the following Interrogatories 

on the undersigned "[w]ithin 28 

days

after" these 

Interrogatories are served on you. 

See 35 Ill. Admin. Code § 

101.620(b).

(b)

The Board's procedural rules also require 

that you answer each of the

following 

Interrogatories "separately and 

fully in writing under oath, unless 

it is objected

to." See 35 Ill. Admin. Code 

§ 101.620(b).

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

A verification statement (see 735 ILCS 5/1-109), signature line, and space for

notarizing are 

provided 

for your use in meeting 

the

requirement 

of Section 101.620(b)

that Interrogatories be answered "under oath."

(c)

The Board's 

procedural 

rules 

also 

require 

that you sign 

your 

answers to

these Interrogatories and sign any objections you make to these Interrogatories.

111. Admin. Code § 101.620(b).

(d)

respect to each Interrogatory, in addition to supplying the

35

information asked for and identifying the specific documents referred to, please identify

all documents to which you referred in preparing your answer thereto.

If any document identified in an answer to an Interrogatory was, but is no

ossession or su

s

(f)   If any document or statement       

om product 

on

hereunder on

the basis of a claim of privilege or otherwise, please identify each such document or

tody or control, or was known to you, but

osition was made of it or what 

became 

of

which its production is being withheld.

(g)  If you are unable or refuse to answer any Interrogatory completely for any

reason, including, but not limited to, because of a claim of privilege, please so state,

answer the Interrogatory 

to the extent possible, stating whatever knowledge or

informat                                

wer,

and set forth the reason for 

your inability or refusal to answer more fully.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

DEFINITIONS

As used 

in

these 

Interrogatories, 

the terms 

listed 

below are defined as follows:

(

seq.

(b)

"Act" means the Illinois Environmental Protection Act, 415 ILCS 5/1 et

"Board Regulations" means 35 Illinois       

ive Code § § 101 et seq.

(c)   "Document" or "documents" means any of the following of which you

have knowledge or which are now or were formerly in your actual or constructive

possession, custody or control: any writing of any kind, including originals and all 

non-

iden          

different from the originals by reason of any notation made on

such copies or otherwise),        

t

lim

ldence, memoranda,

notes, desk calendars, diaries, statistics, checks, invoices, statements, receipts, returns,

warranties, guarantees, summaries, pamphlets, books, prospectuses, inter-office and 

intra-

office commun          

any sort of conversations, telephone calls,

meetings or other communications, bulletins, magazines,

photographs, co

red matter,

uter printouts, teletypes, telefax, invoices, worksheets and all drafts,

alterations, modifications, changes and amendments to any of the foregoing; any

correspondence, databases, spreadsheets, electronic 

mai "e-mail" messages, or other

or other such storage system; and any

audiotapes, videotapes, tape recordings, transcripts, 

or graphic or oral records or

representations of any kind.

"Hazardous Waste" means hazardous waste as 

defined by Part 721 of the

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

"Identify," "identity" and "identification," 

when used to refer to any entity

other than a 

natural person, mean to state its full name, the present or last known address

of its principal office or place of doing business, 

and the type of entity (e.g., corporation,

partnership, unincorporated 

association).

(I)

" "identity" and "identification," when 

used to refer to a natural

person, mean to state 

the following:

1.

The person's full name and present or 

last known home address,

home telephone number, business address and business telephone 

number;

2.

The person's present title and 

employer or other business

affirmation; and

3.

The person's title and employer 

at the

(g)  "Identify," "identity

of the actions at which

"identification.," when used to refe

document, mean to state the following:

l .

The subject of the document;

2.

The

3.

The type of document (e.g., 

letter, memorandum, telegram, chart);

4.

The date 

of the document, or if the specific date thereof is

unknown, the

prepared 

or o

6.

other best approximation 

of such date;

The identity 

of the person or persons who wrote, contributed 

to,

uch document; and

stodian of the document.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

(h)  "Person" means any natural person, firm, corporation, partnership,

proprietorship, joint venture, organization, group of natural persons, or other association

separately identifiable whether or 

not such association has a separate juristic existence in

its own right.

(i)

"Possession, 

custody or control" includes the joint or several possession,

custody or control not only by the person to whom these Interrogatories 

are addressed,

rporting to act on behalf of the person, whether as employee, 

attorney,

r several possession, custody 

or control by each or any other person

accountant, agent, sponsor, spokesman, 

or otherwise.

"Relates t o" means supports, evidences, describes, 

m entions, refers to,

c ontradicts or comprises.

(k)

(1)

c ans Complainant Morton F. Dorothy.

"Flex-N-Gate's 

Facil

601

Guardian 

Drive

"Wastewater T

lli

r operty operated by Flex-N-Gate at

ged in

ment" means the following equipment

located at the Facility that 

is used to treat wastewater: equalization tanks, 

reduction and

adjustment tanks, flocculation tank, lamella, 

sand filters, sludge hol

presses.

g tanks, and filter

(n)  "Wastewater Treatment Unit" 

means waste water treatment unit as defined

e gulations at 35 

Ill. Admin. Code 

§

720.110.

that "Respondent 

is

rating a hazardous waste treatment and storage 

facility...." (Complaint Pg. 4 ý 1)

5

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Please identify what 

material you are referring to in this statement that you allege

constitutes "hazardous waste" as to which Flex-N-Gate is "operating a hazardous waste

treatment and storage facility," and further state:

the nature of the 

material;

(b)  the approximate quantity of the 

material;

(c)  the manner or method by which you allege Flex-N-Gate is storing,

treating, and/or disposing of 

the material; and

(d)  the approximate location of the material at Flex-N-Gate's 

Facility.

ANSWER:

ORY NO. 2: In your Complaint you refer to "...the waste 

under

the catwalk...." (Complaint Pg. 4 ý 2.) Please clarify 

what status you allege this material

holds (i.e. do you allege that this 

material is hazardous waste?) and whether this is the

1 upon which you base your allegatio   

Count I of your Complaint that Flex-N-

Gate has violated Section 

21(f) of the Act and 35 11. Admin. Code § 703.12

INTERROGATORY 

NO. 3: Count I of your Complaint alleges that 

Flex-N-

.without a RCRA permit or 

interim status, in violation of

Act and 35 Ill. Adm. Code 

§ 703 .121(a)." (Complaint Pg. 4 ý 

1.)

On

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

what basis do you allege that Flex-N-Gate's facility is required to operate either with a

permit or under interim status?

RROGATORY NO. 4: In your Complaint 

you state, "35 111. Adm. Code

103.400 et seq. Include [sic] procedures under which the Board would supervise 

the

issuance of a RCRA permit." (Complaint 

Pg. 4 ý 4.) Please state how this allegation

relates, if at all, to the 

violation you are alleging under Section 21 (f) of the Act and 

under

Code § 703.121 (a) in Count 

I

of

your Complaint.

ANSWER:

N-Gate contends that its Wastewater

Treatment Equipment (as 

defined above) generates and accumulates a sludge 

that

satisfies the definit  of "wastewater treatment 

sludge

definition of "wastewater 

treatment unit" contained i

in

Code 

§

720. 110. 

Do

you disagree 

with this contention, and, if so, please state the 

basis upon which you

disagree including the specific portions of 

the definition of "sludge" at 35 111. Admin.

Code § 720.110, 

and/or the definition of "hazardous waste" 

at 35 Ill. Admin. Code §

721.103, which you believe hav

ANSWER:

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

INTERROGATORY NO. 6: Flex-N-Gate contends that the Wastewater

Treatment Equipment at its Facility meets the defini  of "tank" or "tank system" as

defined at 35 111. Admin. Code § 720.110. 

Do you disagree with this contention, and, if

so, please state the basis upon which you disagree including the specific portion of the

ion of "tank or tank system" contai

believe has not been satisfied.

ANSWER:

d at 35 111. Admin. Code § 720.110 which you

NO. 7: Flex-N-Gate contends that 

the floor of the room in

"chrome plating line" is located at the Facility, as alleged in paragraphs four

through six of your Complaint (hereina

center of the 

room, where two concrete

r "Plating 

Room Floor"),

?

are located in the floor. Do you disagree

se state 

the basis upon

-N-Gate contends 

that the purpose of the slope

om

Floor is to direct any solution which

proceeding through 

the "chrome      

otherwise falls from the "chrome

me,"                  

r. Do you

ease state the basis upon which you disagree.

8

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

ANSWER:

R ROGATORY NO. 9: 

Flex-N-Gate contends that the Plating Room Floor

m eets the definition of "ancillary equipment" as defined at 35 111. Admin. Code §

720.110.        

ee with this contention, 

and, if so, please state the basis upon

which you disagree including the specific portion of the definition of "ancillary

satisfied.

contained 

at

35

111. Admin. 

Code 

§ 720.110 which you believe has not been

INTERROGATORY 10: Flex-N-Gate contends that the "pits" located in the

Plating Room Floor hold solution which falls 

from the "chrome plating line" until

solution can be transferred to the Wastewater Treatment Equipment, via direct

connection. Do you           

tion, and, if so, please state the basis upon

of "ancillary 

equip

-N-Gate contends that the "pits" located

sagree.

n. Code § 720.110. Do you disagree with 

this contention, and, if so, please state the

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

basis upon which 

you disagree including the specific portion of the definition of

"ancillary equipment" contained at 35111. Admin. Code § 720.110 which you believe 

has

not been satisfied.

R:

INTERROGATORY NO. 12: 

Flex-N-Gate contends that a pump is located at

the Plating Room Floor, which pumps are used to 

transfer solution that falls

onto the floor an  subsequently cap     

ch pit, via hard-piping, to the Wastewater

Treatment Equipment. Do you              

nd, if so, please state the

upon which you disagree.

with this conten

INTERROGATORY 

NO. 13: Flex-N-Gate contends that the pump located 

at

each "pit" in the 

Plating Room Floor meets the definition of "ancillary 

equipment" as

defined at 35 111. Admin. Code § 720.110. 

Do you disagree with this contention, and, 

i

pon which you disagree, including the 

specific portion of the

ion at "ancillary equipment" contained 

at 35111. Admin. Code § 720.110 which

you believe 

has not been satisfied.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

OGATORY NO. 

14: Flex-N-Gate contends that piping leads from the

'located in the Plating Room Floor to the "Wastewater Treatment 

Equipment." Do

you disagree wi

disagree.

R:

INTERROGATORY NO. 15: Flex-N-Gate 

contends that the p   

at lead from

the pits in the Plating Room Floor to 

the Wastewater Treatment Equipment meet the

definition of "ancillary equipment" as defined at 35 

Ill. 

Admin. Code 

§ 720.110. Do you

disagree with t

including the specific

SWER:

111. Admin. Code § 720.110 

which you believe has not been satisfied.

contention, 

and, if so, please state the basis upon which you

ention, 

and, if so, please state the basis upon which you disagree

ion of the definition of 

"ancillary equipment" contained at 35

TORY 

NO. 16: Flex-N-Gate contends that wastewater 

at the

ransferred 

through piping between the various pieces of 

equipment included in

the definition 

of "Wastewater Treatment Equ

contention, 

and, if so, please state the bas

ER:

" set forth above. Do you disagree

you

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

INTERROGATORY NO. 

17: Flex-N-Gate contends that all piping through

wastewater at the Facility is transferred between the various pieces of equipment

ded in the definition of "Wastewater 

Treatment Equipment" set forth above meets

the

definition 

of "ancillary equipment" as defined at 35 111. Admin. Code § 720.110. Do

you disagree with this contention, and, if so, please 

state the 

basis 

upon which you

disagree 

including the specific portion of the definition of "ancillary equipment"

ed at 35 111. Admin. Code § 720.110 which you believe 

has not 

been satisfied.

ANSWER:

OGATORY NO. 18: Flex-N-Gate contends 

that 

piping 

is used to

discharge treated wastewater from the Wastewater Treatment Equipment to the U

Champaign Sanitary 

District. Do you

state

i

upon 

whic

ee with this contention, and, if so, please

NO. 19: Flex-N-Gate contends that the piping from the

acility's 

connection with the Urbana-

ed at

contention, and, if so, please

u disagree including the specific portion of 

the definition

12

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

"ancillary equipment" contained at 35 111. Admin. Code § 720.110 which 

you believe has

not been satisfied.

R:

INTERROGATORY 

NO. 20: Please provide the name and address of each

witness who will testify at any hearing

witness's testimony.

R:

matter and state the subject 

of each

e the name and address of each

witness who will offer any testimony or opinion 

on behalf of Complainant, and

state:

The subject matter on which 

the opinion witness is expected to

(b)

The conclusions and/or opinions of the opinion 

witness and the

herefore, including 

reports of the witness, if any;

The qualifications of each opinion witness, 

including a curriculum

; and

(d)

its of the op    

ness regarding

this 

occurrence.

13

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

INTERROGATORY NO. 22: Please list the names and addresses of all 

other

persons (other than yourself and persons 

heretofore listed) who purport to have

knowledge, or with whom you have communicated, in writing or otherwise - including,

ed to, representatives 

of the United States Environmental Protection Agency,

the

is Environmental Protection Agency, and/or any other governmental body 

or

agency other than the 

Illinois Pollution Control Board - relating to your contention in

Count 

I of your Co   

that Flex-N-Gate has via

Environmental Protection 

Act an

ANSWER:

ated Section 

21(fj 

of the

35

111. Admin. Code § 703.121(a).

ORY NO. 23: 

Please identify all persons who assisted with the

preparation of 

your responses to these Interrogatories, 

whom you or

consulted in the preparation of your 

responses to these Interrogatories, and/or who

otherwise 

provided any information used in the preparation of 

your responses to these

Interrogatories, and     

e

Interrogatories with which each such person assisted or

consulted or provided 

information.

ANSWER:

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

ERROGATORY NO. 24: Please identify any statements, information 

and/or

documents or other evidence 

known to you and requested by any of the foregoing

rrogatories or by any Request for Production propounded on 

you

by

Respondent

which you claim to be work 

product or subject to any common law or statutory pri

and with respect to each Interrogatory or Request 

for Production, specify the legal basis

for the claim.

Respectfully 

submitted,

FLEX-N-GATE CORPORATION

Dated: January 18, 2006

Thomas G. Safley

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

523-4900

GWST:0031Filltntorrogator

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MORTON F. DOROTHY,     

)

Complainant,       

)

v.

)

PCB No. 05-49

FLEX-N-GATE CORPORATION,   

)

an Illinois corporation,           

)

Respondent.       

)

F LEX-N-GATE 

CORPORATION'S

REOUESTS FOR PRODUCTION 

TO COMPLAINANT

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

by its attorneys, HODGE DWYER ZEMAN, and 

pursuant to Section 101.616 of the

Illinois 

Pollution Control Board's ("Board") procedural rules, 35 Ill. Admin. 

Code 

§

101.616, propounds the following Requests for Production on 

Complainant Morton F.

Dorothy, 

to be answered within 28 days after these Requests for Production are served on

Complainant.

INSTRUCTIONS

(a)   Please produce all 

documents requested herein for copying at the

offices of HODGE DWYER ZEMAN, 3150 Roland Avenue, Springfield, Illinois,

within twenty-eight 

(28) days of the date of service of these Requests for

Production, or provide copies of the documents requested herein 

to counsel for

Flex-N-Gate by that date.

(b)  If any document was previously in your possession or subject to your

custody or control that these Requests for Production would require you to produce, but

is no longer 

in your possession or subject to your custody or control, or was known to

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

you, but is no longer in existence, please state what disposition was made of it or what

became of it.

(e)   If any document is 

withheld from production hereunder on the basis of 

a

claim of privilege or otherwise, please identify each such document and the grounds upon

ch its production is being withheld.

(d)  If you are unable or refuse to respond to any Request for Production

completely for any reason, inc

"Document"

so state, answer the Request for Production to the extent possible, stating whatever

knowledge or information you have concerning the portion of the Request for Production

which you do answer, and set forth 

the

reason for your inability 

or

refusal 

to

answer more

fully.

DEFINITIONS

As used in these Requests for Production, the terms

follows:

(a)

have

g, but not limited to, because of a claim o

`documents"

below are defined as

iy

of the 

following 

of

which you

edge or which are now or were formerly in your actual or constructive

possession, custody or control: any writing of any kind, including originals and all

nonidentical copies (whether different from the originals by reason of any notation made

or

otherwise), 

including 

without limitation correspondence, memoranda,

notes, desk calendars, diaries, statistics, checks, invoices, statements, receipts, returns,

a

s, pamphlets, books, prospectuses, interoffice and

fice communications, offers, notations of any sort of conversations, telephone

calls, meetings or other communications, bulletins, magazines, publications, printed

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

matter, photographs, computer printouts, teletypes, telefax, invoices, worksheets and all

drafts, alterations, modifications, changes and amendments to 

any of the foregoing; any

spreadsheets, 

databases, electronic mail messages, or   

nformation of any kind

contained in any computer or other such storage system; and any audiotapes, 

videotapes,

tape recordings, transcripts, or graphic or oral 

records or representations of any kind.

(b)  "Possession, custody or control" includes the      

al possession,

custody or control not only by the person to whom these Requests are addressed, but also

the joint or several possession, custody or control by each or any other person acting or

o act on behalf of the person, 

whether 

as

employee, attorney, accountant,

agent, sponsor, spokesman, or otherwise.

(c)  "Relates to" means supports, evidences, describes, mentions, 

refers to,

contradicts or comprises.

(d)  "You" means Complainant Morton F. Dorothy.

(e)  "Flex-N-Gate's 

Facility" means the property operated by Flex-N-Gate at

601 Guardian Drive in Urbana, Illinois, as alleged in paragraph three of your Complaint.

REQUESTS FOR PRODUCTION

I.

Please produce all correspondence or other documents of any kind relating

to this matter exchanged between you and any lay witness whom you intend to, or may

call to, testify at any hearing in this matter.

2.

Please produce all correspondence or other documents of any kind relating

to this matter exchanged between you and any independent 

expert witness whom you

estify at any hearing

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

3.

Please produce all correspondence or other 

documents of any kind relating

to this matter 

exchanged between you and any controlled expert witness whom you

intend to call to testify at any hearing in this matter.

4.

Please produce any and all reports or other documents relating to 

this

matter generated by any independent or controlled expert whom 

you intend to call to

testify at any hearing in this matter.

S.

Please produce a current resume and curriculum vitae for each

independent or controlled expert whom 

you intend to call to testify at any hearing in this

matter.

6.

Please produce copies of all correspondence, 

email messages, or other

documents of any kind exchanged 

between you and the United States Environmental

Protection Agency relating to this matter.

7.

Please produce 

copies of all correspondence, e-mail messages, 

or other

documents of any kind exchanged between you and the 

Illinois Environmental Protection

Agency relating to this matter.

S.

Please produce copies of all correspondence, e-mail 

messages, or other

ed between you and 

any other governmental body or

agency, other than the  

ois Pollution Control Board, relating to this matter.

9.

Please produce any and all other docu

any way to your allegation that Flex-N-Gate 

has violated Section 21 (f) of the Act and/or

35 111. Admin. Code 

§

703.1? l. (a), as alleged in Count I of your Complaint.

10.  Please produce all exhibits 

which you intend to, or may seek to, enter into

ative exhibit at any hearing in this 

matter.

4

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

11.  Please produce any photographs, motion pictures, videotapes, maps,

drawings, or other visual or pictorial representations of any kind of the Flex-N-Gate

Facility at issue in this matter or otherwise relating in any way to the allegations

contained 

in your 

Complaint.

12.  Please produce all documents, other than those produced in response to the

Requests for Production set forth above, which you identified 

in response 

to

Flex-N-

Gate's Interrogatories.

13.  Please produce all documents or other items of any kind, other than those

produced in response to the Requests for Production set forth above, which you consulted

or to which you referred in preparing your responses to Flex-N-Gate's Interrogatories to

you or your responses to these   

ests for Production.

Respectfully submitted,

FLEX-N-GATE CORPORATION

Respondent,

Dated: January 18, 2006

Thomas G. Safley

ZEMAN

3150 Roland Avenue

Post Office Box 5776

ingfield, Illinois 62705-5776

(217) 523-4900

G WST:003/Fil/Requests for Production

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CHAMPAIGN COUNTY, 

ILLINOIS

MORTON 

F. DOROTHY,     

)

Complainant,         

)

VS.

)

No. PCB 05-049

FLEX-N-GATE CORPORATION,  

)

an

Illinois 

Corporation,        

)

Respondent.          

)

RESPONSE TO 

INTERROGATORIES

Complainant Morton F. Dorothy makes the following response 

to Interrogatories

propounded by Respondent on January 18, 2006.

1.

Complainant 

does not have detailed information to respond to this question,

apart from the documents produced by Respondent in discovery, which are 

in

Respondent's possession, and which are too voluminous to fully summarize.

Evidence that Respondent is treating and storing hazardous waste includes the

following:

a.

Respondent has 

produced a "Contingency Plan" which represents that it

was prepared to meet the Board's regulations governing hazardous waste

management facilities in 35111. Adm. Code 725. (Response to Request for

Production No. 

1, p. 

6-12)

b.

On January 19, 2001, The 

Illinois Environmental Protection Agency

conducted a RCRA inspection which found numerous violations of the

Board's rules governing hazardous waste 

management, including rules

governing the storage 

of hazardous waste, and violations of the

contingency 

planning requirements. The Agency contended that, 

because

of the violations, the facility failed to 

qualify for exemption from the RCRA

permit requirement. 

On

May

3, 2001, Respondent answered the Agency

with a detailed letter promising 

to come into compliance with the

regulations, 

without raising any arguments to the 

effect 

that the 

facility

was

not conducting hazardous 

waste management operations. (Response

to

Request for Production No. 13)

c.

Respondent has produced manifests 

showing large quantities of

hazardous 

waste shipped 

out of 

the

facility. (Response to Request 

for

Production 

No. 9)

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

In the course of job training, Complainant was told by Respondent's

agent's, in the course of business, that the facility was treating and storing

hazardous waste.

e.

Ken Keigley and Holly Hirchert of the Illinois Environmental 

Protection

Agency have told the Complainant that the facility was conducting

hazardous waste treatment and storage operations pursuant to a claim of

exemption as a 

large 

quantity generator of hazardous waste. 

Prior to

taking her position with the Agency, Holly Hirchert was 

the

environmental

engineer for the Guardian West facility, with responsibility over many of

these hazardous waste management operations.

Complainant 

was required to 

segregate certain 

wastes for separate

disposal as hazardous waste, including chromic acid contaminated

wastes from the area under the catwalk, and from the chromic acid

recovery operation, 

which 

wastes 

were placed 

in

containers 

labeled

"hazardous waste'", with storage times noted, by the Environmental

Manager at Guardian West.

2.

The Complaint speaks for itself as to the 

allegation. 

The question calls for a legal

conclusion, and/or requests Complainant's work product. Complainant contends

that the material under the catwalk, including liquids, debris and sludge, is

hazardous waste. At a minimum, this is chromic acid contaminated waste.

Pursuant to 

a

Freedom 

of Information Act request, Illinois Environmental

Protection Agency 

has told the Complainant that the facility does not have a

RCRA permit or interim status. Ken Keigley and Holly Hirchert of the Illinois

Environmental Protection Agency have told the Complainant the 

same thi

Respondent has failed to produce 

a RCRA permit or interim status notification in

very requests. See also the Response to 

Question 

1. The

of the question calls for a legal conclusion, 

and/or requests

Complainant

4.

Objection. The question calls 

for a legal conclusion, and/or requests

Complainant's 

work 

product.

a

C omplainant's work product. 

Moreover, this

Complaint nor Answer 

has alleged that any portion 

of the facility is a "wastewater

treatment unit".

Objection. 

The question calls for 

a legal conclusion, and/or requests

Complainant's work product. 

Moreover, this is irrelevant 

because neither the

Complaint nor Answer 

has alleged that any portion 

of the facility is a "tank" 

or

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

"tank system" (other than the tanks involved in the production process).

7.

Complainant generally agrees with this statement. However, Complainant does

not know exactly where the pits are located with respect to the center of the

room. Moreover, the pits are actually located to the east and west of the

approximate 

center of the room, and the 

floor 

under the tanks appears to be

sloped 

toward the line 

between the pits, rather than 

the

apparent 

central point.

Complainant agrees that this is a part of the purpose of the slope of the floor.

Objection. The question 

calls for a 

legal 

conclusion, and/or 

requests

Complainant's work product. Moreover, this is irrelevant because neither the

Complaint nor Answer has alleged that any portion of the facility is "ancillary

equipment".

10.  Complainant generally agrees with this statement. However, the pits were not

designed to "hold" the liquid for a significant period of time, but rather to pump

the liquid immediately as it accumulated. By agreeing as to details concerning

the

physical appearance and design of the equipment, Complainant is not

agreeing as to any regulatory interpretation hidden in Respondent's question.

11.  Objection. The question 

calls for a 

legal 

conclusion, 

and/or requests

Complainant's work 

product. Moreover, this is irrelevant because neither the

Complaint nor 

Answer has alleged that any portion of the facility is "ancillary

equipment'".

12.  Complainant agrees 

with 

this 

statement. By agreeing as to details concerning the

I appearance and design of the equipment, Complainant is not agreeing

gulatory interpretation hidden in Respondent's question

13.  Objection. The question calls for 

a

legal 

conclusion, and/or requests

Complainant's work 

product. Moreover, this is irrelevant because neither the

Complaint 

nor Answer has alleged that any portion 

of

the

facility is "ancillary

equipment".

14.  Complainant 

agrees with this statement. By agreeing as to 

details concerning the

physical appearance and design of the 

equipment, Complainant is not agreeing

as to any regulatory interpretation hidden 

in Respondent's question

15.

Objection. The question 

calls for a legal conclusion, 

and/or requests

Complainant's 

work product. Moreover, this 

is irrelevant because neither the

Complaint nor Answer has 

alleged that any portion of the facility is 

"ancillary

equipment".

10.  Objection. The 

question calls for a legal 

conclusion, and/or requests

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Complainant's work product.

17.  Objection. The 

question calls 

for

a legal conclusion, and/or requests

Complainant's work product. 

Moreover, 

this 

is irrelevant because 

neither the

Complaint nor Answer has alleged that 

any

portion of the facility is "ancillary

equipment".

18.  Complainant agrees with this statement. By agreeing as to details concerning the

physical appearance and design 

of

the

equipment, Complainant 

is not agreeing

as to any regulatory interpretation hidden 

in Respondent's question

19.  Objection. The question calls for a legal conclusion, and/or requests

Complainant's work product. Moreover, this is irrelevant because neither the

Complaint nor Answer has alleged that any portion of the 

facility is 

"ancillary

equipment".

20. As it now stands, the 

Complaint appears to be restricted to the issue of whether

Respondent has violated the storage time requirements for hazardous waste

under the catwalk. Under these circumstances, the Complainant will testify as to

the properties of the material under the catwalk, and as to the length of storage.

In the event Respondent intends to 

offer 

testimony to the effect that the 

area 

is

periodically cleaned, or that the material is not hazardous waste, Complainant

will request subpoenas to obtain testimony of employees and former employees,

including Larry Kelly, Afiba Martin and Holly Hirchert.

21.

Complainant has no funds with which to employ outside expert witnesses.

Complainant sees no need at this time for expert testimony. Complainant is,

however, an expert on much of the factual material 

at

issue, and will, if

necessary, testify 

as an 

expert 

witness. In a citizen enforcement action, the

Complainant has a right to testify about relevant matters at a public hearing

regardless of qualification as an expert Any objections would go to the weight of

the evidence. Complainant's relevant 

qualifications include:

Bachelor 

of Science in Chemistry, with high honors and distinction in the

curriculum, University of Illinois, 

Urbana, 

Illinois, 1970. 

Juris 

Doctor, 1976.

Between 1980 and 1993, 

Complainant drafted the Illinois versions of most

of the 

regulations involved in this case.

plainant handled public questions

the State of Illinois.

Complainant attended numerous conferences 

and

hearings 

concerning

ardous waste 

management, both as an attendee and

speaker.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Complainant drafted numerous documents and reports concerning

hazardous waste, including theAnnual Reports to the Governor of the

Illinois Hazardous Waste Advisory Council.

C omplainant 

is a 

certified "HAZWOPER" 

first responder for 

hazardous

waste emergencies.

C

omplainant 

did process and quality 

control 

chemistry for the subject

plating line for nearly two 

years, during which 

time he was regularly

ulted by management concerning the operation and control of the

plating process.

22.

Other persons:

Tanvir Ali, Plant Manager, 

Guardian 

West, 

601

Guardian Drive, Urbana IL

61802

Ken

Keigley, Illinois Environmental Protection Agency, 2125 South First

Champaign IL

Holly Hirchert, Illinois Environmental Protection Agency, 2125 South First

Champaign 

IL

d.

Bill Keller, Champaign County Emerg

Agency, 

1905 East Main Urbana IL 61802

ervices 

and

Disaster

Unknown person, Urbana Fire Department, 400 

S.

Vine, Urbana, IL 

61801

Peggy A. Zweber, Area Director, U.S. Dept. of Labor, Occupational Safety

and Health Administration, 

2918 Willows Knolls Rd, Peoria IL 61614.

r, U.S. Dept. of Labor, Occupa

Safety and Health Administration, 2918 Willows Knolls 

Rd, Peoria 

IL

61614.

Sue Ellen DeManche, 

U.S. 

Dept. 

of Labor, Occupational Safety and

Health 

Administration, 2918 Willows Knolls Rd, Peoria IL 61614.

Mr. Thomas V. Skinner, Re

Jackson Blvd., 

Chicago, IL 60604

Gary Westefer, 

US EPA Region 5, 77 W. Jackson Blvd., Chicago, IL

60604

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

23. No persons 

have assisted Complainant.

24. Complainant has claimed privilege in response to several of the above

questions.

Morton F. Dorothy, Compla

Morton 

F. Dorothy

104 W. University

Southwest Suite

Urbana IL 

61801

217/384-1010

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CHAMPAIGN COUNTY, ILLINOIS

MORTON 

F.

DOROTHY,     

)

Complainant,         

)

vs.

)

No. PCB 05-049

FLEX-N-GATE CORPORATION,   

)

an

Illinois Corporation,       

)

Respondent.         

)

A MENDED RESPONSE TO INTERROGATORIES

In response to Respondent's Motion to Compel dated April 13, 2006,

Complainant Morton F. Dorothy makes 

the

following 

amended 

response 

to

Interrogatories propounded 

by Respondent on January 18, 2006.

1.

Complainant does not have detailed information to respond to this 

question,

apart from the documents produced by Respondent in discovery, which are in

Respondent's possession, 

and

which are too voluminous to fully 

summarize.

Evidence that Respondent is treating 

and storing hazardous waste includes the

following:

a.   Respondent has produced a "Contingency Plan" which represents that 

it

was prepared to 

meet 

the Board's regulations 

governing hazardous waste

management facilities in 

35

III. 

Adm. Code 725. (Response to Request for

Production 

No. 1, p. 6-12)

b.   On January 19, 2001, The Illinois Environmental Protection 

Agency

conducted 

a RCRA inspection which found numerous violations of the

Board's rules governing hazardous waste management, including rules

governing the storage of hazardous waste, and violations 

of

the

contingency 

planning requirements. The Agency contended that, because

of the violations, the facility failed to qualify for exemption 

from the RCRA

permit 

requirement. 

On May 3, 2001, Respondent answered the 

Agency

with a detailed letter promising to come into 

compliance with the

regulations, 

without raising any arguments to the effect that the facility

was not conducting 

hazardous waste management operations. (Response

to

Request for 

Production 

No. 13)

c.

Respondent has produced manifests showing large 

quantities of

hazardous waste 

shipped out of the facility. (Response to Request for

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Production No. 9)

In the course of job training, Complainant was told by Respondent's

agent's, in the course of business, that the facility was treating and storing

hazardous waste.

engineer for the Guardian West facility, with responsibility 

over many of

these hazardous waste management 

operations,

ng her position with the Agency, Holly Hirchert was 

the

environmental

Ken Keigley and Holly Hirchert 

of

the Illinois 

Environmental Protection

Agency have told the Complainant that the facility was conducting

hazardous waste treatment and 

storage 

operations 

pursuant to a claim of

exemption as a large quantity generator of hazardous waste. Prior to

"hazardous waste", 

with 

storage times no

Manager at Guardian West.

recovery operation, which wastes

e, including chromic acid contaminated

equired to segregate certain wastes for separate

ram the chromic acid

ced in 

containers 

labeled

ed, by the Environmental

The

Complaint speaks for itself as to the allegation. The question calls for a legal

conclusion, and/or requests Complainant's work product. Complainant 

contends

that the material 

under 

the

catwalk, including liquids, debris and sludge, is

hazardous 

waste. 

At a minimum, this is chromic acid contaminated waste.

Pursuant to a Freedom of Information Act request, 

Illinois Environmental

Protection Agency has told the Complainant that the facility 

does not have a

RCRA permit 

or interim status. Ken Keigley and Holly Hirchert of the Illinois

Environmental Protection Agency have told the Complainant the same thing.

Respondent has failed to produce a RCRA permit or interim status notificati

response to discovery requests. See also the Response to Question 

1. The

remainder of the question calls for a legal conclusion, 

and/or requests

work product.

Objection. The question 

calls for a legal conclusion, and/or requests

Complainant's work product.

Complai

ion, 

and/or requests

Complainant generally agrees with this statement. Ho

n

in

plainant 

does

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

not know exactly where the pits 

are located with 

respect to the 

center of the

room. 

Moreover, the pits are 

actually located to the east and west of the

approximate center of the room, and the floor under the tanks appears to be

sloped toward the line between the pits, rather than the apparent central point.

Complainant agrees that this is a part of the purpose of the slope 

of

the floor.

ction. The question calls for a legal conclusion, and/or requests

plainant's work product.

10.  Complainant generally agrees with this statement. However, the 

pits were not

ned to "hold" the liquid for a significant period 

of

time, 

but rather 

to

pump

the

liquid immediately as it accumulated. 

By agreeing as to details concerning

the physical appearance and design of the equipment, Complainant is not

agreeing as to any regulatory interpretation hidden in Respondent's question.

11.  Objection.

Compl

question calls for a legal conclusion, and/or reques

rk product.

12.  Complainant agrees with this statement. By agreeing as to details 

concerning 

the

physical appearance and 

design of the equipment, Complainant is not agreeing

as to any regulatory interpretation hidden in Respondent's question

13.  Objection. The question calls for a legal conclusion, and/or requests

Complainant's work product.

14.  Complainant agrees with this statement. By agreeing as to details concerning the

physical 

appearance and design of the equipment, Complainant is not agreeing

as to any regulatory interpretation hidden in Respondent's question

15.  Objection.

Complainan

I conclusion, and/or requests

16.  Objection. The question calls for a legal conclusion, and/or requests

Complainant's 

work product.

17.  Objection. 

The

question calls for a legal conclusion, and/or requests

Complainant's work product.

18.

eing as to details concerning the

equipment, Complainant 

is not agreeing

ulatory interpretation hidden in Respondent's question

19.

Objection. The 

question 

calls 

for

a legal 

conclusion, and/or 

requests

Complainant's work product.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

20. As it now stands, the Complaint appears to be restricted to the issue of whether

Respondent has violated the storage time requirements for hazardous waste

under the catwalk. Under these circumstances, the Complainant will 

testify as to

the

properties 

of

the material 

under the catwalk, 

and as 

to

the length of storage.

In the event Respondent intends to offer testimony to the effect that the area is

periodically cleaned, or that the material is not hazardous waste, Complainant

will request subpoenas to obtain testimony of employees and former employees,

including Larry 

Kelly, Afiba Martin and Holly Hirehert.

21. Complainant has no funds with which to employ 

outside expert witnesses.

Complainant sees no need at 

this time 

for expert testimony. Complainant is,

however, 

an

expert on much of the factual material at issue, and will, if

necessary, testify as an expert witness. In a citizen enforcement action, the

Complainant has a right to testify about relevant matters at a public hearing

regardless of qualification as an expert Any objections would go to 

the

weight 

of

the

evidence. 

Complainant's relevant 

qualifications 

include:

Bachelor of Science in Chemistry, with high honors and distinction in the

curriculum, University 

of

Illinois, 

Urbana, 

Illinois, 1970. 

Juris Doctor, 1976.

Between 1980 and 1993, Complainant drafted the Illinois versions 

of most

of the regulations involved in this case.

Between 1980 and 1993, Complainant handled 

public 

questions

concerning these regulations for the 

State of Illinois.

Complainant attended numerous conferences and hearings concerning

the subject of hazardous waste management, both as an attendee 

and

speaker.

Complainant drafted 

numerous documents and reports concerning

hazardous waste, including theAnnual Reports to the Governor of 

the

Illinois Hazardous Waste Advisory Council.

Complainant is a certified °HAZWOPER° first responder 

for

hazardous

waste 

emergencies.

did

process and quality control chemistry for the subject

or neariv two 

vears, 

during which time he was regularl

ning the operation 

and control of the

plating process.

22. Other persons:

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Tanvir Ali, Plant Manager, Guardian West, 601 Guardian Drive, Urbana IL

61802

Ken Keigley, Holly Hirchert, Bill Child, Illinois Environmental Protection

Agency, 2125 South First Champaign IL

Bill Keller, Champaign County Emergency Services and Disaster

Agency, 1905 East Main Urbana IL 61802

Unknown person, Urbana Fire Department, 400 S. Vine, Urbana, IL 61801

Mr. Thomas V. Skinner, Gary Westefer, US EPA Region 5, 771 N.

Jackson Blvd., Chicago, IL 60604

Matt Dunn, Chris Perzan, Illinois Attorney General, 500 S. 2"d, Springfield,

I L 62706

23.  No persons have assisted Complainant.

24. Complainant has claimed privilege in response to several of the above

questions.

Morton F. Dorothy, 

Complainant

VERIFICATION

STATE OF ILLINOIS     

}

}

SS

COUNTY OF CHAMPAIGN  )

Morton F. Dorothy, being first 

duly sworn on oath, deposes and states, under

provided 

by law 

pursuant 

to Section 1-109 of the Code of Civil Procedure, that

nts set forth above in response to Respondent's Interrogatories are true and

correct, except as to matters herein stated to be on information and belief, 

and as to

such matters, the undersigned certifies as aforesaid that he verily believes the same to

be true.

Morton F. Dorothy, Complainant

Morton F. Dorothy

144 W. University

Southwest Suite

Urbana IL 61801

2171384-1010

A-1

r+-/t

L

TRAVIS M. 

YOUMANS

b lic, State of Illinois 

S

6115109

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

321

32t

9

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

BEFORE

CHAMPAIGN COUNTY, ILLINOIS

MORTON F. DOROTHY,

)

Complainant,       

)

as

E ILLINOIS POLLUTION CONTROL BOARD

duly sworn, 

deposes and states under oath,

ould testify, as follows:

I have personal knowledge 

of the matters set forth in

oyed by Flex-N-Gate Corporation ("Flex-N-Gate") as Plating

Manager 

at the facility at issue in the above-captioned matter.

3.

The diagram attached to Flex-N-Gate's Motion for Sanctions or, in the

ive, 

for Summary Judgment ("Motion for Sanctions"), as

-GATE CORPORATION,

is corporation,

PCB 05-49

AFFIDAVIT OF ANTHONY RICE

)

)

}

}

Respondent.       

}

Anthony

illustrates the layout of the Electrop

4.

The tanks that make

piers above a sloped, coated 

concrete 

floor.

t the Faci

oplating             

etc

g , plating, and rinsing, the bumpers are

moved into 

position above the next tank. diaaed into

that tank, etc.

w hi

Z oved 

from a tank, some amount of the solution

emains on the bumper.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

7.

moved 

from tank to tank, the solution that remains on the bumpers after removal from a

tank may fall from the bumpers and land on the floor of the room in which the

located (hereinafter "Plating 

Room").

S.

This process is intentional.

e is

9.

The floor of the Plating Room is coated with epoxy and is sloped towards

the center of the room, where two concrete "pits" are located in the floor.

1 0.

erials that fall on it so that such

from the bumpers and lar

1

soaking into the floor.

12.

aterials are directed into the "pits" rather than

art of the floor is hosed down each shift in order to wash any

erial that has fallen onto the floor into the

13.  A pump is located at each

that falls onto the floor into piping w

the Facility is treated.

14.

))

' which pumps are used 

to

transfer 

so

ads to equipment in

taps do not run continuously.

from

15.  Rather, a level indicator 

in each pit automatically actuates each pump

aches a pre-dete

16.

17.

ectroplating Line is engineered so that when bumpers are being

The purpose of the slope of the floor is to direct 

the solution 

which falls

to the `    

in the center of the floor.

1.    The purpose of 

the

coating on      

o

make 

the

floor impervious 

to

el.

ally occurs several times each day.

longest period of time that materi    

falls to the

would 

remain 

in

the pit normally would be a few hours.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Under penalties 

as

provided 

bylaw 

pursuant 

to Section 1-109 of the Code

of Civil Procedure, the undersigned certifies that the statements set forth

in this instrument are true and correct, except as to matters therein stated

to be on 

information and belief and as to such matters the undersigned

aid that he verily believes the same to be true.

FURTHER AFFIANT SAYETH NOT.

hony Rice

Subscribed and sworn to before

me this   

day of         

, 2006.

Notary Public

G

WST:003/Fi]/Affidavit 

of Anthony Rice-- Motion for Sanctions

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

BEFORE 

THE ILLINOIS POLLUTION CONTROL 

BOARD

CHAMPAIGN 

COUNTY, ILLINOIS

MORTON F. DOROTHY,

Complainant,

PCB

OS-49

FLEX-ht-GATE 

CORPORATION,

an Illinois corporation,

AFFIDAVIT OF KEVIN 

JEFFRRIES

Kevin Jeffries, being first duly sworn, 

deposes 

and

states under oath, and i

as a    

would testify, as 

follows:

personal 

knowledge 

of

the

matters set fortl-i in this affidavit.

lex-N-Gate Corporation

("Flex-N-Gate").

3,

The electroplating line at the facility at issue in this matter ("Facility"), as

d escribed on pages 18 and 19 of Flex-Iii-Gate's Motion for Sanctions or, in the

Alternative, for Summary Judgment ("Motion for Sanctions"), is a standard design

4.

ely describes

I of Flex-N-Gate's Mo

al out of which such equipment is/was

of equipment involved 

in

tre

enters 

each 

piece of e

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

March 2005.

All

of this equipment (hereinafter "Wastewater 

Treatment Equipment") i

oundaries 

of the Facility.

The diagram attached to Flex-N-Gate's Motion for Sanctions a

strates 

the layout 

of the 

wastewater treatment system.

hibit 

H

Following treatment in the Wastewater Treatment Equipment, liquids 

are

discharged to a Publicly Owned 

Treatment 

Works 

("POTW") operated by the Cities of

Champaign and Urbana, 

Illinois ("UCSD").

9.

Following    

g, sludge        

atellite accumulation

ner in preparation for 

placement into 

90-day 

accumulation containers, 

where 

it is

accumulated before it is's

10.

ed off-site for recycling.

o£

a manifest 

by

which Flex-N-Gate has had such 

sludge

ed to Flex-N-Gate's Motion 

for

Sanctions 

as

Exhibit 1

11<  While the wastewater treatment sludge is located inside the equipment that

is used to treat th                   

e considers the sludge to be exempt

r

12.

703.123(

astewater that 

the

Facility treats and discharges 

to

the

UCSD

floor.

UCSD 

issued 

to Flex-N-Gate, a copy of which autho

Motion

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

14.  The sludge 

that the Facility's Wastewater

is a hazardous 

waste 

as

defined in 35111. Admin, Code 

§ `121.10.3.

15,  The Facility's wastewater treatment

16.  This Facility's Wastewater 

Treatment Equipment:

(a)

nt Equipment generates

s not been excluded from

720.120 and 720.122.'°

elation of hazardous waste," i.e.,

the F006 slu       

reatment of the wastewater 

creates;

is "design

is "constructed 

primarily of nonearthen materials (e,g., wood,

concrete, steel, plastic)," 

in

this 

case, Fiberglass Reinforced Plastic

and

steel; and,

(d)  these "none     

ials. 

. . prov  

tructural 

support."

Under penalties 

as

provided 

by law pursuant to Section 1-109 of the Code

of Civil Procedure, the 

undersigned 

certifies that 

the

statements set 

forth

in this instrument are true and correct, except as to matters therein stated

ilief and as to such matters the undersigned

certifies as aforesaid that he verily believes 

the same to be true.

GWSUQRFil/Affidavit of Kovin Jeffries- Motion for Sanctions

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

ti

w

lt!aW

C OC

7r

e

E,  IB1'C

r

e

0

F

F

s

d8

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

STATE OF ILLINOIS

P LEASE TYPE  

(Form designed for use on elite (12-pitch) typewriter.)         

EPA Form 8700-22 (ReY. 8-89)

WASTE MANIFEST 

__[ ELROODMOS

S. Generators Name

.  GnardiaaWest

ý

'r r i 

I  P.O. D=277 

601 Gueidtm Drive

Urý* 

IL 61$03 

Urbuna, IL 61801

4 . '24 HOUR EMERGENCY AND SPILL ASSISTANCE NUMBERS' 800.42400

5. Transporter 1 Company Name          

8. '       

US EPA ID Number

F

re&edd 

G'`atWe, lRC.                    

KiDOS41Z61

1 5.

E

NVIRONMENTAL PROTECTION 

A(dtNOY DIVISION OF LAND YULLU I IUN OUN I KUL

P .O. BOX 19278   

SPRINGFIELD, ILLINOIS 82794.9278 (217) 782-8781

State Form LPC 82 9/81   

IL532-0610

ores and Additional Information

ERA N 171

Generates Nss- etinfeetlpency plains 217-2711.2;135

1 8. GENERATORS CERTIFICATION: 

I hereby declare 

that 

the contents of this consignment are fully and accurately described above by

proper shipping name and aim tleseified, packed, marked, and labeled, and are in all respects 

in proper condition for 

transport by 

highway

aooording m 

applicable Intsmational 

and national government regulations.

If I am a 

ý 4ýe and that 

certify 

have selected 

I have 

the

program 

In

place 

reduce 

en storage, 

and

o

r dtoxicity 

currently 

of waste generated 

aiable to r 

the degree 

miniýmiz 

determined to

be

and

economically 

future 

practicable                               

pý

ded this 

threat 

man

health 

emeM method 

mare 

environment; 

available 

OR,

to me 

if II 

aamýadsmall 

lttuar%generator, t have made a good f&M effort to minimal 

my waste 

generation and

en

ffo rd. 

r- Date

5

igna

U NIFORM HAZARDOUS 

1. Generators US EPA ID No.

D iscrepancy Indication Space

n .

1 9. 

I

Den

~ (Ty'\

This Agency is  authodxsd to r*Wrm. pu mt to Illlnols  fbNsid 

spur ill 12. 9ek5on

Ihia Infortnatlon 

may result 

In s civil 

ry

against the owner ý''' f      

1o exceed $25.000 p

oar day of violation and knodaonment uo to 6 v888pro. Thle form has been approved by the Form Manaoanam 

ContO

Month Day Y

Date

Month 

Day Y

ý ý I-C

Month Day Y

1.'. 

1 - L I _ i....

o f vbt

st Do

FOR SHIPMENT OF HAZARDOUS

AND SPECIAL WASTE

Form Approved. OMB 

No.

20500099

2. Page 1   I 

Infomutlon in 

the shaded areas 

Is n

nrquYad 

bY

Federal law, Iwt Is requited t

o f

I I

a lnois law.

Infomudon be submiftsd

of We Information mss.

COPY 1. TSD MAIL 

TO GENERATOR

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Public Notice - Urbana Champaign Sanitary District 

Northeast STP, Draft Modifi... Page 

1 o

cýýri>týýýýN

Rod R. 

Blagoji

Public 

Not

ce

N PDES Permit No. IL0031500

Notice No. RJH:03040301.dik

Public Notice Beginn      

9, 2003

Public Notice 

Ending Date: June 9, 2003

N ational Pollutant Discharge Elimination System 

(NPDES) Permit 

Program

PUBLIC NOTICE/FACT SHEET

of

D raft Modified NPDES 

Permit 

to

Discharge Into Waters of the State

Public Notice/Fact Sheet Issued By:

I llinois EPA

Division of Water Pollution Control

Permit Section

1021 North Grand Avenue 

East

Post Office Box 19276

Springfield, Illinois 

62794-9276

217-782-0610

Name and Address of Discharger:           

Name and Address of Facility:

Urbana Champaign Sanitary 

District           

Urbana Champaign SD 

NE

STP

Post Office 

Box 669               

1100 East University Avenue

Urbana, Illinois 61803              

Urbana, Illinois

(Champaign County)

The Illinois Environmental 

Protection Agency (IEPA) has made a tentative determination to 

modify a

NPDES Permit to 

discharge into the waters of the state and has prepared a draft modified 

Permit and

associated 

fact sheet for the above named discharger. The 

Public Notice period will begin and end on

the dates Indicated In the heading 

of

this 

Public Notice/Fact Sheet. All comments on the draft 

modified

Permit and requests 

for hearing must be received by the IEPA by U.S. Mall, carrier 

mail or hand

delivered 

by the 

Public Notice Ending Date. Interested persons 

are Invited to submit written comments

on the draft modified Permit to the IEPA at the above 

address. Commentors shall provide his or 

her

name and address and the 

nature of the Issues proposed to be raised and the evidence 

proposed to be

presented with 

regards to those issues. Commentors 

may include a request for public hearing. Persons

submitting comments and/or 

requests for public hearing shall also send a copy 

of such comments or

requests to 

the Permit applicant. The NPDES Permit and notice numbers 

must appear on each

comment page.

The modification 

request, engineer's review 

notes including load lim

Sheet, draft Permit, comments 

received, and other documents are

h ttp:i/www.epa.state.il.us/public-notices/2003/urbana-sanit

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Public Notice/Fact Sheet -- Page 3 -- NPDES Permit No. IL0031500

This Permit contains an authorization to treat and discharge excess flow 

as follows:

Discharge Number and Name: 002 Excess Flow Outfall

CONCENTRATION

LIMITS ma/L

Parameter                        

Dally Maximum   

Monthly Average

Regulation

BOD5                                 

'

40 CFR 133.102

Suspended Solids                 

7F

'

40

CFR 133.102

Fecal Coliform    

Shall not exceed 

a geometric mean of 200 per 100 mL nor shall more than 10% of    

35 IAC 304.121

the samples during the month exceed 400 

per

100 mL

pH

Shall be in the range of 6 to 9 Standard 

Units                       

35 IAC 

304.125

Chlorine Residual

.ý__ý_,ým____.._M._..___ 

_._...._.__...._.__..  

_

_..

3.0

..._.........,..._..._._..._`..,.._._..._

_ ýý... _.._4_.._.__._.._.__._._.._.

35 IAC 302.208

r_.____.ý__...Y _ _.____ __.__..

`Concentration Limits (L) shall be determined as follows:

L = -15t23(D) 

+

49.565

r of days of discharge per month

ge effluent limitation in mg/L

Discharge Number and Name: 003 Flood Protect       

when 

the receiving stream 

is

above elevation 700.50)

d on a design average flow (DAF) of 17.3 MGD 

(design 

maximum 

flow (DMF) of 34,6,

The effluent of the above discharge(s) shall be monitored and limited 

at all times as follows:

LOAD LIMITS lbslday'           

CONCENTRATION

_

._._.._...._,_   

_

D AF (,DMF)

__.,_........,. ._  

._........___.    

___..._..,._......._......a

.....___._

.

LIMITS mg&

Monthly  

Weekly    

Daily

_ _,. .._.._..

Monthly

._.e_.____.___

Weekly

___.__

Daily

Parameter        

Average   

Average   

Maximum  

Average Average Maximum  

Regulation

CBOD5       

1,443

2,886     

10

20

35 IAC 304.120

(2,886)          

,, (5,771)

40 CFR133.102

Suspended Solids      

1,731              

3,463     

12

24

35 IAC 304.120

(3,463)             

(6,926)                       

40 CFR133102

pH

Shall be in the range of 

6

to 9 Standard Units

35 IAC 304.125

Chlorine Residual                                             

0.05  

35 IAC 

302.208

Ammonia Nitrogen:

March        

303 (606)  

765 (1,529)  1,385 (2,770)   

2.1

5.3

9.6

35 IAC 355 and

-O bober     

216

433

15

35 IAC 302

Nov.

346

(693)          

693 ( 38 )     

2.4

4.8

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Public Notice/Fact Sheet - Page 2 -- NPDES Permit 

No. IL0031500

Application is 

made 

for

the existing discharges which are located in Champ

discharge point, receiving stream and stream classifications:

y, Illinois. The following 

information identifies the

Stream

Biological 

Stream

O utfall    

Receiving Stream    

Latitude

Longitude     

Classification     

Characterization

001

Saline Branch  

40° 07' 11" North  88° 11' 29" West

General Use        

B

Drainage Ditch

002

Saline Branch  

40° 07' 

11" North  88° 11' 46" West   

General Use       

B

Drainage Ditch

003

Saline Branch

40° 07' 11" North  88° 11' 27" West   

General 

Use

B

Drainage Ditch

tifying the location of the discharge(s) please see the attached 

map,

Discharge Number 

and Name: 001 STP Outfall

Load limits 

computed based on a design average flow (DAF) of 17.3 MGD (design maxi

The effluent 

of the above discharge(s) shall be monitored and limited at all times as follows:

(DMF) of 

34.6 

MGD).

LOAD 

LIMITS lbs/day"          

CONCENTRATION

DAF (DMFt            

LIMITS 

mo/L

Monthly   

Weekly    

Daily    

Monthly

Weekly  

Daily

Parameter       

Average  

Average  

Maximum  Average Average Maximum  

Regulation

CBOD5        

1,443           

2,886    

10

20

35 IAC 304.120

(2,886)            

(5,771)                       

40

CFR

133.102

Suspended Solids      

1,731             

3,463    

12

24

35 IAC 304.120

(3,463)            

(6,926)

40 CFR 133.102

pH

Shall be 

in the 

range of 6 to 9 Standard Units                    

35 IAC 304.125

Chlorine Residual

0.05  

35 IAC 302.208

Ammonia Nitrogen:

March         

303 (606)  765 (1,529)  1,385 

(2,770)   

2.1

5.3

9.6

35 IAC 355 and

April-October '          

216 (433)         

433

(866)    

1.5

3.0

35 IAC 302

Nov. Feb.          

346 (693)         

693 (1,385)   

2.4

4,8

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

FACT SHEET

Name and Address of Discharger:

Urbana Champaign Sanitary District

Post Office Box 669

Urbana, Illinois 61843

Name and Address 

of

Facility:

Urbana Champaign

1100 East University

Urbana, Illinois

(Champaign County)

The following water quality 

and

effluent standards and limitations 

were applied to the discharge:

Title 35: Environmental Protection, Subtitle 

C: Water Pollution, Chapter I: Pollution Control Board 

and the Clean

applied In determining the applicable 

standards, limitations and conditions contained in the draft Permit.

The applicant is engaged in trea

areas of Champaign 

County,

The length 

of the 

Permit

NPDES Permit No. IL0031500

Notice No. RJH:03040301.dlk

National Pollutant 

Discharge Elimination System (NPDES)

Permit Program

PUBLIC NOTICE/FACT 

SHEET

of

Draft Modified NPDES Permit to Discharge 

Into Waters of the State

domesti

and

industri

W ater Act were

f or the City of Champaign, the 

City of Urbana and tributary

The main discharge 

number 

is 001. 

The seven day once in ten year low flow (7Q10) of the receiving stream,

Ditch, is 

4 cis,

The

stream segment, BPJC-06, receiving 

the discharge from 

outfalls 001, 002 and 003 is on the 303 (d) list of

The following parameters 

have been identified as 

the

pollutants causing imp

Potential Pollutants                     

Potential Contributors

Nutrients, phosphorus, nitrates, pathogens, organic

enrichment

Saline Branch Drainage

mpaired waters.

pal point 

sources, urban 

runoff/storm 

sewers, hydrologicthabitat

modification, channelization, habitat modification, streambank

modification/destabilizati

The design average flow (DAF) for the facility Is 17.3 million gallons per day (MGD) and the design maximum flow (DMF) for the facility

is 34.6 MGD. Treatment consists of primary treatment, trickling filters, activated sludge, secondary clarification, 

nitrification, sand

filtration, sludge thickening, anaerobic digestion, sludge dewatering, land application of sludge.

This treatment works has an approved pretreatment program. There are 3 noncategorical SlUs and 2 

CIUs.

This Modified NPDES Permit does not increase the facility's DAF, DMF, concentration limits, and/or load limits.

The [EPA will accept comments on the following draft modifications to the Permit:

1. Ammonia Nitorgen limits were modified to reflect the current water quality standards.

2. Special Condition 16 has been removed.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Public Notice - Urbana Champaign Sanitary District Northeast STP, Draft Modif,..

copied at the 

IEPA between 

9:30 a. 

m.

and

3:30 

p.m. 

Monday through 

Friday when scheduled by 

the

interested person.

If written comments or requests 

indicates 

a significant degree of public interest In the draft modi

2

Permit, the permitting authority may, at Its discretion, hold a public hearing. Public notice will be given

45 days before any public hearing. Response to 

comments 

will be provided 

when the final 

Permit 

is

issued.

For further information, please call Ralph Hahn at 217-782-0610.

Copyright {r7 

2004 Illinois EPA Agency Site Map I Privacy Information I Kids Privacy I 

Web Accessibility I Agency 

Webrnaster

htto://www.epa.state.il.us/public-notices/2003/urbana-sanitary-ne/         

3/29/2005

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

Public Notice/Fact Sheet - Page 4 -- NPDES Permit No. IL0031500

This 

draft 

Permit 

also contai

in possible 

effluent deterioration,

ing requirements as special conditions:

1.

Reopening of this Permit to include different final effluent limitations.

2.  Operation of the facility 

by or 

under the 

supervision of a certified operator.

3.  Submission of the 

operational data in a specified form and at a required frequency at 

any time during the effective term of this

Permit.

4.

More frequent monitoring requirement without Public Notice in the event 

of

operational, 

maintenance or other problems resulting

5.

Prohibition against 

causing or contributing to viola   

of water quality standards.

6.

Effluent sampling point location.

7.  Controlling the sources 

of

infiltration 

and inflow into the sewer system.

8.   A requirement to 

monitor and a 

limit 

of

0.05 

mg/L for residual chlorine when it is used.

9.   The Permittee 

Implements 

and administers 

an

industrial 

pretreatment program pursuant to 40 

CFR 0403.

10.  Burden reduction.

11.  Submission of annual fiscal data.

12.

13.

14.

A

requirement 

for

b

Submi

f

itoring 

of the effluent.

al reports indicating the quantities of sludge generated and disposed.

Recording the monitoring 

results 

on Discharge Monitoring Report Forms using one such 

form 

for

each outfall each month and

submitting the forms to IEPA each month.

15.  Storm Water Pollu

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

.

SECT14 ONE - .GAL '

URBANA & CHAMPAIGN'SANITARY.DISTRICT

INDUSTRIAL WKSýýTBR DISCHARGE PERMIT

PermiirNumbe "1604-O1

Name :                

Guaardiaxt"'Went

Fa ility Addreas: 1306 S .'University Avenue, 

LTrbaMa 

61802

SI Code:              

Code: 336370

Th above. referenced User `lb hereby' 

authorized -to discharge

w tewater 'to the 

Urbaiia 

' V. "Champaign' -Sanitary 

District

jact-to said User'.s_:gqmpl 

a.nc.e.-"Vith the terms and

co itions ih this 

pei4nit.

8f active Date:  

March .'1; 

.2004 

,.

E

,

iration Date: : Eebruary .28, 2009

Re+ommended 

For Approval

Pr treatment 

coordinator

Wop

B de R . BUtleZ. 4ýu-

Apl$roval:

ý 'ý'M

G .

Diz

2 24 -04

Tim 'Bachman, 

P,. B.   

: . .              

(Date)

ector"of 

Waste'Treatment

..

. (Date) .

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

a violation, the User shall also repeat

is and submit the results of the

ict within 30 days after becoming

ie User is not required to

rms

sampling 

at

the

User 

at a

4ncy of at least-once'per month: 

or,

the District

rms sampling at the User between the time when the User

forms 

its initial 

sampling and the time when 

the User

ives 

the results 

of this sampling. Note 

that 

additional

ampling 

may be necessary.to

liance asý. 

defined,-44-,'Section 

825 ref UCED ordinance

ors, any, records, books,

s, .or correspondeince rel

ical 

analysis 

made by ox

n -With its discharge. 

E

not. be limited 

to the 

"c

s onable

:ication, to enter upon 

the

or records.

ischarging

itoring,

the

ch information

exact place,

the-person or

notification by

is Environmental

Environmental

Lives, exhibiting

scharge as a part

reatment to 

achieve

in this 

permit.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

SECTION 

TBRPE 

"

MONITORING"(Contý

t

6.  A 1 analyses 

required by this permit'shall 

be performed

ether by 

an independent-District 

approved laboratory 

or by

w

D

re

e User's 

own laboxatory-ýfacility 

and staff. 

If the User

shes to use their 

own laboratory 

facility and staff, 

the

strict 

must certify .the ýlaboiratory 

prior.. 

to

accepting 

any

sulto. 

..

7.

Flow shall 

be monitored with continuous. 

readout and 

recording

capabilities 

and-- submitted on 

*monthly 

basis 

unless

otherwise 

approved:by.theMistrict. 

Flow 

measuring

e

uiPment, shall be calibratec 

;;,at ];east 

annually: and records

o such'ýcalibratio ' 

shall` be--,available for 

District

i spection. 

r.,: 

}

. .

7 .

Total 

Toxic.Organi.cs....(TTO).: 

'monitoring.. requirements 

may be

ived 

upon submittal.. 

iif lie; apgrQpriately 

signed

tification..statement.;axid 

a

solvent management plan 

as

cified in 

40.'CPRPart 433.12.

SECTI4 

FOVri - 1(EF.ORTIDTG-R SQUIRRDIENT

1

Al test =results 

:required..,ii..Section: 

3 of this 

permit shall

be summarized 

on report 

forms approved by the 

District.- 

The

mo

thly sampling results 

shall.be-submitted 

once a month

pr or .to the 15t° 

day'; of ;'the.ýfollowing month. 

The

semi-

uai"results 

shall be -subcii3:tted 

as soon as they 

become

Available, 

,prior 

to

.June 30' and December.31.

2.  Us r shall notify':.the 

District immediately 

upon any 

discharge

of compatible 

at incompatible pollutants 

which 

causes a 

vi lation 

of the User's 

Discharge Permit or 

a violation'of ,

th

Mistrict-l s. Sexýteri' 

IIse :OrdinancltýN'umber 

600. 

,

In

no

case

s 1 this 

notification '+ýxceed`44 

'hours from when 

the User

be me 

aware of the violation 

ý.The"notification 

shall

is

lude:

2.  Type of discharge

1.1 Name of caller.     

..Location 

,'acrd 

time 'of 

discharge

Coiacentratton.and volume.

1 "written 

notification.-diapussing 

circumstances 

and

edies 

shall 

be submitted to the 

District within 

fifteen

days of the 

incident. 'The 

'written notification 

shall 

be:

accordaxice 

with 

Section.,513-. o:f the District's 

Sewer 

Use

inance 

Number 

..680. The...Userý, a authorized 

representative

l

sign 

the wri,ýten,. no.t1f eat-icin. 

.A

District 

form is

ýilable 

for this 

notification.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

-- DISCHARGE LIMITATIONS 

(CONT)

barged waste shall, 

contain no floatable 

fats, ails or

ease, 

of any origin.

shall comply 

with all applicable

D2 of the District's 

Sewer Use

ntration requ

A ,6f the conditions specified

ILL. 

':Adm. Code are met. in

be Q.003 mg/l.

:quiremept of this 

permit shall be

ily operations. 

Samples shall be

and analyzed in accordance with the

in

40 CFR Part l36 and amendments

It shall be

The

sampling

from the final

t

otal}, chromium ( total)ý,

ium (total) 

,..

silver (total)

twice per.month'. The samples

site oaf the 

wastewater 

discharged far

except, ',cyajiide, . which shall be a grab

to sample,anci analyze for SOD,

acid all 

the pollutants listed

s hall beta 24-hour

ged for all tho- pollutants

Total FOG, and Non-Polar

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

SECTIO 

TWO

A

RGE`LIMITATIONS

ingent than the' Iimitatio

00, supersede the ordinance

r ceable by 

the

authority, of' said' Ordinance.

wastewater discharger;shall comply with the fo

limitations-." ° The limits are as shown ex

and pH, which are applic

Pollutant

i

Chromium (Hex) (gr

1-21-

13T

is  TGS

L4Tsatal 

FOG (grab)-

)ý.

T._

LPH

range (grab)

h.

.vexage

cng/1,' 

.

.9, is

the metal .finishing

40 CFR Part 433 Subpart

Use Ordinance Number

maximum

/1

0 .6

cept

able at all

exceed the daily 

maximum.

composite samples 

in a month

ge: Excluding Hex Chrome,

polarýFOG, no grab sample

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

4.

4e `of, wastewater to the

saýitary-sewer is 

in violation of Federal, State, or local

laws, ordinances, or.regulatiobs. Additionally,

5

f ication or intentional misrepresentation of data.or

s pertaihing to""the permit application or any other

form, shall be cause 

for

permit

3.0. Th4. Urbana a Champai

er 600 

is' the

13,

c

mitations or

changed. 

The

ification, the User shall

he,"permit on a form provided by

er One. 

Hundred and Eighty {180}

to of the User's permit.

of the bistrict,-:"'Sale,mo a User shall obligate the

ser to seek prior %'Iritteh"approval of the District for

zmation' deterntined.to b e confidential under

the District's" ;Sewer Use Ordinance Number 6130,

inf,ormation,,pertaining to this permit

discharge perm

1

User by the District may

n opection, monitoring or analysis it

publicjrispectjon at the District's

User float 

is

riot discharged 

to

the

be.dispciaed in accordance with

any other

a specific

,o

peration.,and are: iiot assigned to another use

o rjtransferajale 

to any..location 

without the prior 

written

d ischarge

failed to comply with 

any prow

rmit thirty

Uaer,Ordinance 

Number 600 and the

tlations,and permits 

issued 

thereunder,

ict

itles C and D of the 4

is

to

comly with an orde

set forth 

in

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

9432.1995(01)

I-lothne Quest

February 1995

and Answers

/ENUs at Generator Sites

A generator may treat hazardous waste 

without 

a permit or 

interim 

status 

in

(March 24, 1

ulation unit that is 

in

compliance with 

the regulations in 262.34

86;

51

FR 10146,10168). If a generator chooses to treat hazardous

-site wastewater 

treatment 

unit or 

in an 

on-site 

ele

neutralization unit, must the generator comply with 262.34?

for treating hazardous waste in an on-site wastewater treatment

or in an on-site elementary neutralization unit, need not comply with 262.34,

is a conditional exemption from permitting requirements, because these

already exempt from certain RCRA requirements. Specifically,

wastewater treatment 

units 

and elementary 

neutralization, units, as defined in

standards as well a

storage, and disposal facility (TSDF)

permitting standards (264.1(8)(6), 265.1(c)(10), and

RO 13727

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

CALL CENTER QUESTIONS & ANSWERS

RCRA

1. Requirements far Characteristic

Sludge Removed from a

Wastewater Treatment Unit

ty manages characteristic

ite wastewater

treatment unit (WWTU) regulated 

by

the

Clean Water Act (CWA). The WWTU is

exempt. from the RCRA requirements

(c) (2) (y). Dur

nd disposal foci

and 265 and the permitting

g enerates wastewater

works (POTU') through a public sewer,

while the sludge is removed, collected, and

stored before land disposal. How is the

characteristic nonwastewater sludge

regulated? Will land disposal restrict

(LDR) requ

Treatment sludge generated from the

ent of characteristic wastewaters in

FR

the tank if it exhibits a

7272; May 16, 2001). Therefore,

n onwastewater

n

e

u blicly owned treatment

be managed as hazardous

sludge will 

be

subject to full Subtitle 

C

uirements. In addition,

storage výtandards and off-site

ný«;eýncut standards

all applicable

s sludges removed from CWA

treatment trains and subsequently land

iect to the LDR

1990).

22520, 22657; June l,

If the nonwastewater sludge does not

exhibit a characteristic of hazardous waste

when it is removed from the tank, then i

no longer subject to the requirements of

Subtitle C, but 

LDR requirements 

may

still

apply (§261.3(d)(1)). Sludge generated

during the treatment of a wastewater that

results in a change from wastewater to

ge in

treatability group. A change in treatability

group for a characteristic treatment residual

is a new point of generation for LDR

purposes (64 FR 25408, 25411; May 11,

1999). If the sludge has undergone a change

is

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006

RCRA 

Online Database

P age 1 of 1

C on_tactUs 

I

Print.ýBysiSZn

Home > Wastes > lnf_o_rr_matipn SouU_e_s > RQRA.Online 

> Document Record Detail

W elcome   

What's New

Full

Text Search Advanced 

Search  

How To

D ocument Record Detail

F ull Document:

Title:

RCRA Online 

Number:

Date:

To:

From:

Organization of Recip

Description:

TS

FOR CHARACTERISTIC SLUDGE 

REMOVED

F ROM A WASTEWATER 

TREATMENT UNIT

14718

06/01/2004

NA

NA

NA

A

treatment 

sludge from characteristic wastewaters in

must be managed as 

hazardous once it is 

removed 

from tank if it

exhibits a characteristic. Such waste 

is subject to 

on-

transportation, and LDR requirements. If a nonwastewater sl

does not exhibit a characteristic it is not subject to Subtitle C, but

LDR may still apply. Treatment of a wastewater that results I

change to nonwastewater may be a change in treatability group

and

a new point of generation, If 

there 

has been 

a

change in

treatability group and the waste is no longer characteristic, 

LDR

Regulatory 

Citation(s)

Statutory 

Citation(s):

Toplc(s):

Approximate Number of 

Hardcopy

Pages:

EPA Publication Num

RPPC Number (if applicable):

OSW

Policy:

requirements do 

not

apply.

2

.641 

(g)(6), 265.1_(q)(10)ý 

270..1.(021 v

x rrui,CIAIýr

N A Read US Code 42,_Chapter,82 

cxrr'rr.d.s..ýy>ý

Characteristic 

Wastes; Land Disposal Restrictions; Permits and

Permittin

1

EPA530-R-04-003f

NA

EPA Home 

I Privacy and SecurityN gii

htip:f/yosemite.epa.gov/osw/rcra.nsf/Oc994248c239947e85256dO9OO7t l75f/ebcfOd3afeb7... 5/26/2005

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 19, 2006