THIS FILING SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
C om pl ai n an t,
)
)
v.
)
PCB No. 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Carol Webb, Esq.
Clerk of the Board
Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
100 West Randolph Street
1021 North Grand Avenue East
Suite 11-500
Post Office Box 19274
Chicago, Illinois 60601
Springfield, Illinois 62794-9274
(VIA ELECTRONIC MAIL)
(VIA ELECTRONIC MAIL)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
the Illinois Pollution Control Board the following documents:
1.
Flex-N-Gate Corporation’s RESPONSE TO COMPLAINANT’S
MOTION TO WITHDRAW MOTION TO STRIKE ANSWER;
2.
Flex-N-Gate Corporation’s RESPONSE TO COMPLAINANT’S
MOTION TO RECONSIDER HEARING OFFICER ORDER;
3.
Flex-N-Gate Corporation’s RESPONSE TO COMPLAINANT’S
MOTION FOR SANCTIONS FOR EVASIVE PLEADING; and,
4.
Flex-N-Gate Corporation’s MOTION FOR LEAVE TO FILE
REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER
copies of which are herewith served upon you.
Respectfully submitted,
FLEX-N-GATE CORPORATION,
Respondent,
Dated: June 24, 2005
By:/s/ Thomas G. Safley
One of Its Attorneys
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
RESPONSE TO COMPLAINANT’S MOTION TO WITHDRAW MOTION TO
STRIKE ANSWER; RESPONSE TO COMPLAINANT’S MOTION TO RECONSIDER
HEARING OFFICER ORDER; RESPONSE TO COMPLAINANT’S MOTION FOR
SANCTIONS FOR EVASIVE PLEADING; and MOTION FOR LEAVE TO FILE
REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER, 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 24, 2005; and upon:
Mr. Morton F. Dorothy
104 West Universit y, SW Suite
Urbana, Illinois 61801
by depositing said documents in the United States Mail in Springfield, Illinois, postage
prepaid, on June 24, 2005.
/s/ Thomas G. Safley
Thomas G. Safley
GWST:003/Fil/NOF and COS – Responses to Motions2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
C om pl ai n an t,
)
)
v.
)
PCB 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
RESPONSE TO COMPLAINANT’S
MOTION TO WITHDRAW MOTION TO STRIKE ANSWER
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and for its Response to
Complainant’s Motion to Withdraw Motion to Strike Answer, states as follows:
1.
Complainant has moved the Illinois Pollution Control Board (“Board”) to
allow him to withdraw his Motion to Strike Flex-N-Gate’s Answer. SeeC
om pl ai n an t’ s
Motion to Withdraw Motion to Strike Answer (“Motion to Withdraw”).
2.
Flex-N-Gate states the fo llowing in response to statements made by
Complainant in his Mot ion to Withdraw.
3.
In paragraphs one and two of his Mot ion to Withdraw, Complainant states
that Flex-N-Gate has made an admissio n in response to Complainant’s Supplemental
Request to Admit, which admissio n “has rendered moo t [Complainant’s] Mot ion to
Strike Answer.” See
Motion to Withdraw at ¶¶1,2. Flex-N-Gate takes no position as to
whether or not this is the case. Flex-N-Gate notes, however, that the “admission” at issue
is substant ively ident ical to statements that Flex-N-Gate made in sworn statements it
previously served or filed in this case, and, thus, is in no way “new.” See
Flex-N-Gate’s
Response to Complainant’s Motion for Sanctions for Evasive Pleading, at 7-8.
2
4.
In paragraph three of his Motion to Withdraw, Complainant states that he
“is also filing a Motion for Sanctions for Evasive Pleading asking that the Board award
complainant the costs of extracting the above admissio n from respondent.”
at
Id¶3.
.
5.
Flex-N-Gate is responding separately to Complainant’s Mot ion for
Sanctions for Evasive Pleading. As stated in its Response to t hat Motion, Flex-N-Gate
vehement ly denies that it has engaged in “evasive pleading,” that Complainant has had to
“extract” any admission from Flex-N-Gate or has incurred any costs in “extracting” any
admissio n from Flex-N-Gate, that Complainant is ent it led to any relief requested in his
Motion for Sanctions for Evasive Pleading, or that the Board’s rules authorize the relief
that Complainant seeks.
Respectfully submitted,
FLEX-N-GATE CORPORATION
R
e
s
p
o
n
d
e
n
t
,
Dated: June 24, 2005
By:/s/ Thomas G. Safley
One of Its Attorneys
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:003/Fil/Response to Motion to Withdraw Motion to Strike
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
C om pl ai n an t,
)
)
v.
)
PCB 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
RESPONSE TO COMPLAINANT’S
MOTION TO RECONSIDER HEARING OFFICER ORDER
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and for its Response to
Complainant’s Motion to Reconsider Hearing Officer Order (“Motion to Reconsider”),
states as follows:
I.
INTRODUCTION
Flex-N-Gate has filed two Motions for Summary Judgment. FlSeexe-N-Gate’s
Motion for Summary Judgment as to All Counts o f Complainant’s Co mplaint, Flex-N-
Gate’s Motion for Partial Summary Judgment as to Counts II through VI of
Complainant’s Co mplaint (“Mot ions for Summary Judgment”). In addit ion, the Parties
have filed numerous Motions relating to discovery.
,
Seee.g.
, Flex-N-Gate’s Mot ion for
Protective Order, Complainant’s Motion to Compel Response to Interrogatories. On
June 2, 2005, the Hearing Officer issued an Order which states in part:
The parties are await ing the Board’s ruling on complainant’s motion to
strike respondent’s answer to the complaint. Addit ionally, since the last
status conference, the parties have filed numerous mot ions pertaining to
discovery, and respondent has filed a mot ion for summary judgment. In
the interest of administrative economy, the hearing officer will reserve
2
ruling on the outstanding discovery motions until the Board rules on the
motion for summary judgment.
June 2, 2005, Hearing Officer Order.
Complainant has moved the Hearing Officer to reconsider this Order. See
Motion
to Reconsider. For the reasons set forth below, the Hearing Officer should deny
Complainant’s Mot ion to Reconsider.
II.
RESPONSE TO MOTION TO RECONSIDER
A.
Administrative Economy is Served by Reserving Ruling on the
Parties’ Discovery Motions.
As noted above, the Hearing Officer has reserved ruling on the Parties’
outstanding discovery mot ions “unt il t he Board rules on the mot ion for summary
judgment,” and made this decision to reserve ruling “[i]n the interest of administrative
economy.” June 2, 2005, Hearing Officer Order. This is appropriate. As discussed
below, by definit io n, discovery in t his case can relate only to the claims t hat Complainant
has filed against Flex-N-Gate. If the Board grants summary judgment to Flex-N-Gate,
those claims – and t his case – will no longer exist, and t he Parties’ discovery mot ions will
be moot.
Thus, there is no need to rule on the Parties’ discovery mot ions unless the Board
denies summary judgment in whole or in part to Flex-N-Gate. Accordingly, as the
Hearing Officer has held, administrative economy is served by reserving ruling on the
Parties’ discovery mot ions.
3
B.
Complainant’s Alleged Plans to File an Amended Complaint are
Insufficient to Support Complainant’s Motion to Reconsider.
In paragraphs six and seven of his Motion to Reconsider, Complainant states as
follows:
6.
Upon complet ion of discovery, co mplainant expect s to file an
amended co mplaint to make the complaint conform wit h the facts
as elucidated in discovery, to eliminate many o f the legal
objections complainant [sic] is raising, to allege continuing
vio lat ions a nd to add counts alleging vio lat ion o f addit ional Board
rules based on the admissio ns made in discovery.
7.
Administrative economy would be better served by completing
discovery while the Board considers t he mot ions for summary
judgment. Even if the Board were to grant summary judgment
against the complainant, complet ion of d iscovery would allo w
complainant to draft an amended co mplaint which could move
quickly to hear ing.
Motion to Reconsider, ¶¶6, 7.
That is, Complainant argues that the Hearing Officer should reverse her June 2,
2005, Order reserving ruling on discovery motions not because the discovery at issue
allegedly is relevant to the claims w hich Co mplainant has brought in
actthiiosn, but
because the discovery allegedly would be relevant to claims which Co mplainant plans to
file in the future
. See id. This is an improper basis on which to allow discovery.
Any party in a proceeding before the Illinois Pollution Control Board (“Board”)
of course may seek leave o f the Board to file an amended pleading. 35
SeeIll. Admin.
Code § 103.206(d) (“If a party wishes to file an amendment to a complaint . . . that sets
forth a new or modified claim against another person, the party who wishes to file the
pleading must move the Board for leave to file the pleading.”) However, a party may not
use d iscovery in one proceeding in an att empt to discover infor mat ion t hat is not relevant
to that proceeding, in order to attempt to support some different proceeding.
4
Section 101.616(a) of the Board’s procedural rules provides only for the
di sc ov e ry of “ re l eviannfort mat ion and infor mat ion calculated to lead to relevant
information.” 35 Ill. Admin. Code § 101.616(a). (Emphasis added.) It is axiomatic that
for purposes of Section 101.616(a), “relevant” means relevant to the claims currently
pending before the Board
. See, e.g., Illinois Supreme Court Rule 201(b)(1) (“. . . a party
may o bta in by discovery full disclosure regarding any matter relevant to the subject
matter involved in the pending action
. . . .”) (emphasis added); 35 Ill. Admin. Code §
101.616 (“For purposes of discovery, the Board may look to the Code of Civil Procedure
and the Supreme Court Rules for guidance where the Board’s procedural rules are
silent.”); former 35 Ill. Admin. Code § 101.101 (defining “relevant” as meaning “having
any tendency to make the existence of any fact that is of consequence to the
determination of the proceeding more probable o r less probable t han it would be without
that information”) (emphasis added).
Thus, the Illinois Supreme Court has held: “It is axiomatic that discovery should
only be utilized to illuminate the actual issues in the cas.” eSander v. Dow Chem. Co.,
651 N.E.2d 1071, 1079 (Ill. 1995). (Emphasis added; quotations omitted.) Likewise, the
Illinois Appellate Court has held: “A trial court does not have discretion
to order
discovery of infor mat ion that does not meet the thresho ld requirement of relevance to
matters actually at issue in the cas.” e Manns v. Briell
,
811 N.E.2d 349, 352 (4th Dist.
2004). (Emphasis added.) Any discovery by Complainant to support claims that he
might file in the future does not “illuminate the actual issues in the case” currently before
the Board, nor does it “meet the thresho ld requirement of relevance to matters actually at
issue in the case” currently before the Board. Thus, any such discovery is improper.
5
As such discovery is improper, Complainant’s wish to conduct such discovery is
an invalid basis for the Hearing Officer to reverse her June 2, 2005, Order.
C.
Paragraph Eight of Complainant’s Motion to Reconsider is Not
Properly Supported, and Therefore the Hearing Officer Must
Disregard It .
In addit ion, in paragraph eight of his Motion to Reconsider, Complainant states:
This case grew out of a toxic gas release in which several people were
nearly killed. Based on the infor mation available to complainant,
respondent has taken no steps whatsoever to avoid a repetition of this
incident, even though such steps would cost less than $1,000. This case
needs to proceed as quickly as possible to a Board order requiring
compliance to avoid a possible fatal accident.
Motion to Reconsider, ¶8.
As the Hearing Officer is aware, in motions filed with the Board, “[f]acts asserted
that are not of record in the proceeding must be supported by oath, affidavit, or
certification in accordance with Section 1-109 of the Code of Civil Procedure.” 35 Ill.
Admin. Code § 101.504. Complainant does attempt to support his Motion to Reconsider
by repeating paragraph eight of that Motion as paragraph six o f the affidavit he files
therewith. See
Affidavit, ¶6. However, the Hearing Officer cannot rely on this affidavit,
because it is deficient and conclusory.
1.
Complainant’s Affidavit is Deficient
.
As discussed below, paragraph six of Complainant’s affidavit concludes, among
other things: (1) that “a toxic gas release” occurred; (2) that “several people were nearly
killed”; (3) that alleged “steps . . . to avoid a repetition of this [alleged] incident . . .
would cost less than $1,000”; and (4) that there is the possibility of a “fatal accident” at
Flex-N-Gate’s facilit y. Affidavit, ¶6. However, the affidavit is deficient, because it does
not establish Complainant’s ability to make these assertions.
6
First, the affidavit does not state or otherwise establish t hat Complainant has
personal knowledge of these alleged facts (that is, allegedly, that “a toxic gas release”
occurred; that “several people were nearly killed”; that alleged “steps . . . to avoid a
repetit ion of this [alleged] incident . . . would cost less than $1,000” (Complainant does
reference some unidentified “information available to complainant,” but does not state
the source of that information, whether or not it is hearsay, etc.); or that there is the
possibilit y of a “fatal accident.”)
Second, the affidavit does not state or otherwise establish that Complainant, if
sworn as a witness, has the knowledge to testify that “a toxic gas release” occurred; does
not establish t hat Complainant has the medical tra ining testify that “several peop le were
nearly killed”; does not establish that Complainant has the background to testify that
alleged “steps . . . to avoid a repetit ion of this [alleged] incident . . . would cost less than
$1,000”; and does not establish that Complainant has the background or medical training
to testify regarding the possibility of a “fatal accident.”
Instead, all that t he affidavit says is t hat Complainant “makes the fo llow ing
affidavit in support of his Motion to Reconsider Hearing Officer Order.” Id.
It is axiomatic that unless there is evidence that a witness has personal knowledge
of the matters which he asserts, his assertions are “insufficient” as evidence in a Board
proceeding. EPA v. Allaert Rendering, Inc. , PCB No. 76-80, 1979 Ill. ENV LEXIS 71, at
*24 (Ill.Pol.Control.Bd. Sept. 6, 1979) (“Since this occurrence witness stated that he had
no personal knowledge nor evidence of samples of any wastewater discharged from the
Allaert treatment works to the Rock River, the Board finds the evidence patently
insufficient. . . .”) Accord , Illinois Supreme Court Rule 191(a) (providing that certain
7
affidavits “shall be made o n the personal know ledge of the affiants. . . and shall
affirmatively show that the affiant, if sworn as a witness, can testify competently
thereto.”); Johnson v. ADM-Demeter, Hoopeston Division
, PCB No. 98-31, 1999 Ill.
ENV LEXIS 6, at *2 (Ill.Pol.Control.Bd. Jan. 7, 1999) (relying on Supreme Court Rule
191(a)).
As Complainant’s affidavit does not establish that Complainant has personal
knowledge of the matters asserted therein, and does not establish that Complainant could
testify as to those matters, the Hearing Officer cannot rely on that affidavit, or on the
corresponding statements in Co mplainant’s Motion to Reconsider, when ruling on
Complainant’s Mot ion to Reconsider.
2.
Complainant’s Affidavit is Conclus
.
or y
Second, and more fundamenta lly, Co mplainant’s affidavit is insufficient because
it is conclusory.
The Board has long held that it “[can] not grant relief . . . on the basis of a mere
conclusio n” in an affidavit. EPA v. Rhodes
, PCB No. 71-53, 1972 Ill. ENV LEXIS 169,
at *1 (Ill.Pol.Control.Bd. Jan. 24, 1972). In recent cases, the Board has stricken
conclusory allegat ions fro m affidavits filed wit h it. See, , 2222
e.g. Elston LLC v. Purex
Indus., Inc., et al., PCB No. 03-55, 2003 Ill. ENV LEXIS 359, at **17-19
(Ill.Pol.Control.Bd. June 19, 2003) (striking an affidavit that was “conclusory”); Heiser v.
Office of the State Fire Marsh, alPCB No. 94-377, 1995 Ill. ENV LEXIS 895, at *9
(Ill.Pol.Contro l.Bd. Sept. 21, 1995) (striking from an affidavit a statement that was “self-
serving and conclusory.”)
8
Paragraph six of Complainant’s affidavit concludes, among other things: (1) that
“a toxic gas release” occurred; (2) that “several people were nearly killed”; (3) that
alleged “steps . . . to avoid a repetit ion of this [alleged] incident . . . would cost less than
$1,000”; and (4) that there is the possibility of a “fatal accident” at Flex-N-Gate’s facility.
Complainant does not present any specific facts to support those self-serving and
conclusory assert ions, however; he simply makes those conclusions. Under the Board’s
ho ldings set fort h above, this is insufficient.
Accordingly, the Hearing Officer also cannot consider these assertions when
ruling on Complainant’s Motion to Reconsider because they are conclusor y.
III.
CONCLUSION
WHEREFORE, the Respondent, FLEX-N-GATE CORPORATION, respectfully
prays that the Hearing Officer deny Complainant’s Motion to Reconsider Hearing Officer
Order and award FLEX-N-GATE CORPORATION such other relief as the Hearing
Officer deems just and proper in the premises.
Respectfully submitted,
FLEX-N-GATE CORPORATION
R
e
s
p
o
n
d
e
n
t
,
Dated: June 24, 2005
By:/s/ Thomas G. Safley
One of Its Attorneys
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:003/Fil/Response to Motion to Reconsider
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
C om pl ai n an t,
)
)
v.
)
PCB 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
RESPONSE TO COMPLAINANT’S
MOTION FOR SANCTIONS FOR EVASIVE PLEADING
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and for its Response to
Complainant’s Mot ion for Sanctions for Evasive Pleading (“Mot ion for Sanctions”),
states as follows:
I.
INTRODUCTION
Flex-N-Gate filed its Answer to Complainant’s Complaint on or about March 4,
2005. On or about March 15, 2005, Complainant moved the Illinois Pollution Control
Board (“Board”) to strike Flex-N-Gate’s Answer on the grounds that the Answer was
“evasive” and inconsistent with previous filings by Flex-N-Gate. SeeC
om pl ai n an t’ s
Motion to Strike Answer (“Motion to Strike”). Flex-N-Gate responded to that Motion to
Strike on March 30, 2005.
On June 7, 2005, Complainant moved the Board for leave to withdraw his Motion
to Strike. On that same date, Complainant filed his Motion for Sanctions for Evasive
P leading (“Mot ion for Sanctions”). Complainant also bases his Mot ion for Sanctions o n
2
his argument that Flex-N-Gate’s Answer was “evasive.” See
id. For the reasons set forth
below, the Board shou ld deny Complainant’s Motion for Sanctions.
II.
ANALYSIS
A.
Legal Standard
Sanctions in Board matters are governed by Section 101.800 of the Board’s
procedural rules. Section 101.800(a) provides that “[i]f any person unreasonably fails to
comply with any provisio n o f 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).
“Section 101.800 does not allow the Board to monetarily sanction the offending
party.” McDonough v. Robke , PCB No. 00-163, 2004 Ill. ENV LEXIS 575, at **5-6
(Ill.Pol.Control.Bd. Oct. 21, 2004). Rather, “[s]anctions include the following:”
1)
Further proceedings may be stayed until the order or rules are
complied with, except in proceedings wit h a statutory decisio n
deadline. Proceedings with a statutory decisio n deadline may be
dismissed prior to t he date on which decisio n is due;
2)
The offending person may be barred from filing any ot her pleading
or other document relating to any issue to which the refusal or
failure relates;
3)
The offending person may be barred from mainta ining any
particular claim, counterclaim, third-party complaint, or defense
relating to that issue;
4)
As to claims or defenses asserted in any pleading or other
document to which t hat issue is material, a judgment by default
may be entered against the offending person or the proceeding may
be dismissed with or without prejudice;
5)
Any portion of the offending person's pleadings or other
documents relating to t hat issue may be str icken and, if
appropriate, judgment may be entered as to that issue; and
3
6)
The witness may be barred from testifying concerning that issue.
35 Ill. Admin. Code § 101.800(b).
B.
Complainant’s Argument
As just noted, Section 101.800(a) provides that the Board may sanction a party
which “unreasonably fails to comply wit h any provisio n of 35 I ll. Adm. Code 101
through 130 or any order entered by the Board or the hearing officer, including any
subpoena issued by the Board.” 35 Ill. Admin. Code § 101.800(a). Complainant does
not argue that Flex-N-Gate violated any provision of 35 Ill. Admin. Code Parts 101
through 130, any order entered by the Board or the Hearing Officer, or any subpoena
issued by the Board. See
Motion for Sanctions. Rather, Complainant states that “the
Board’s rules are not specific as to evasive pleading,” but argues that Flex-N-Gate
violated Sections 2-610(a) and (c) of the Illinois Code of Civil Procedure, 735 ILCS 5/2-
610(a), (c). Id. at ¶8. Those Sections state as follows:
(a)
Every answer and subsequent pleading shall contain an explicit
admissio n or denial o f each allegation o f the p leading to which it
relates.
*
*
*
(c)
Denials must not be evasive, but must fairly answer the substance
of the allegation denied.
735 ILCS 5/2-610(a), (c).
Complainant’s claim is based on Flex-N-Gate’s Answer to paragraph 12 of
Complainant’s Co mplaint. SeMoe
tion for Sanctions. That paragraph alleges as follows:
Respondent claims t hat t he facilit y operates pursuant to 35 Ill. Adm. Code
703.123(a) and 722.134(a), as a large quantity generator of hazardous
waste which is t reated on-site in tanks, without a RCRA permit or inter im
status. In the event the Board determines that this claim is valid, Section
4
722.134(a)(4) requires compliance with 35 Ill. Adm. Code 725.Subpart D,
including Sections 725.151 through 725.156. In the event the Board
determines that this claim is invalid, respondent is operating an
unpermitted hazardous waste treatment and storage facility which is
subject to Section 725.151 through 725.156 directly.
Complaint at 2.
Flex-N-Gate’s Answer to paragraph 12 states:
Flex-N-Gate denies the allegation contained in the first sentence of
paragraph 12 of Complainant’s Complaint. The remainder of paragraph
12 states legal conclusions that do not call for a response. To the extent
that paragraph 12 states any further allegations of fact, Flex-N-Gate denies
the same.
Flex-N-Gate’s Answer at 4.
Complainant asserts that Flex-N-Gate, in response to Complainant’s
Supplementa l Request to Admit, “made the fo llow ing admissio n”:
Respondent claims exempt ion from t he RCRA permit requirement
pursuant to 35 Ill. Adm. Code 703.123(a) and 722.134(a) with respect to
one or more wastes generated by the Guardian West facility.
Motion for Sanctions, at ¶5.
Complainant then argues that, “[i]n light of th[is] admission . . . the allegation
contained in the first sentence of paragraph 12 of the complaint was true, because the
allegation contained no specific statement that respondent claimed exemption for the
entire facility, or for all wastes.”
,
Idat .
¶6. Thus, Complainant argues, “Respondent’s
answer to paragraph 12 of the complaint was evasive.” Id. , at ¶9.
For the reasons set forth below, Flex-N-Gate disagrees.
C.
Flex-N-Gate’s Answer is not “Evasive.”
Complainant does not cite any authorit y that Section 101.800 of the Board’s rules
authorizes sanctions for alleged violations of Sections of the Code of Civil Procedure
5
which the Board’s rules do not expressly include, and Flex-N-Gate is not aware of any
such authorit y. (As noted above, Section 101.800 provides that “[i]f any person
unreasonably fails to comply with a ny provisio n 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.)) The Board has held that “[t]he Code of Civil Procedure does not
expressly apply to procedures before the Board,” but that, “if the Board’s rules are silent,
the Board may loo k to t he Code for guidance.” People v. Communit y Landfill Co.,
,
Inc.
PCB No. 97-193, 2004 Ill. ENV LEXIS 166, at *7 (Ill.Pol.Control.Bd. March 18, 2004).
(Citations omitted.) Regardless, as discussed below, Flex-N-Gate’s Answer was not
“evasive” and thus did not violate Section 2-610.
As noted above, Complainant also argued that Flex-N-Gate’s Answer was
“evasive” in his Motion to Strike. Flex-N-Gate set forth in detail in it s Response to that
Motion why Flex-N-Gate’s Answer is not inconsistent with Flex-N-Gate’s previous
filings. See Flex-N-Gate’s Response to Complainant’s Motion to Strike at 7-12. Rather
than wasting space by restating these arguments, Flex-N-Gate hereby incorporates these
arguments into this Response. See
id.
In addit ion to demonstrating that Flex-N-Gate’s statements have been consistent,
the arguments set fort h in Flex-N-Gate’s Response to Complainant’s Motion to Strike
demonstrate that Flex-N-Gate’s Answer is not “evasive.” As discussed in response to
Complainant’s Motion to Strike, paragraph 12 of Complainant’s Co mplaint makes an
allegation regarding “the facilit y.” Response to Motion to Strike at 11. Flex-N-Gate
truthfully and accurately denied that allegation, because “the facility” does not “operate[]
6
pursuant to 35 Ill. Adm. Code 703.123(a) and 722.134(a)”; rather, “certain
‘wastestreams’ within the facility” are managed pursuant to those provisions, while
others are not. Id. As Flex-N-Gate stated in its Response to Complainant’s Mot ion to
Strike, “[t]hese are different things.”
Again, Complainant argues that:
In light of the admission of May 27, 2005 [that is, that “one or more
wastes” at the facility is managed under the 90-day accumulation
provisions] the allegation contained in the first sentence of paragraph 12
of the complaint was t rue, because the allegation contained no specific
statement that respondent claimed exempt ion for the ent ire facilit y, or for
all wastes.
Motion for Sanctions at ¶6.
This simply is not the case. The first sentence of paragraph 12 of the Complaint
clearly alleges t hat the facilitmy
anages all of its hazardous waste pursuant to the 90-day
accumulat ion provisio n. This is made c lear by the fact that, in his Supplementa l Requests
to Admit, Complainant did not ask:
“Admit that the facilit y operates pursuant to 35 Ill. Adm. Code 703.123(a)
and 722.134(a),”
as he alleges in paragraph 12 of the Complaint, but rather, asked:
“Admit that . . . Respondent claims exemption from the RCRA permit
requirement pursuant to 35 Ill. Adm. Code 703.123(a) and 722.134(a) with
respect to one or more wastes
generated by the Guardian West facility.”
Complainant’s Supplementa l Request to Admit the Truth of Certain Facts, attached
hereto as Exhibit A
, Request No. 1.
If these two statements are the same, as Complainant now argues, why did
Complainant switch t o the second statement when draft ing his Supplemental Requests to
Admit ? C ompl ai nant may have mto
e anallege
t
in paragraph 12 of the Complaint that the
7
facility manages “one or more wastes” pursuant to Sections 703.123(a) and 722.134(a),
as he states in his Supplemental Requests to Admit. However, he did not make this
allegation. Instead, he alleged that “Respondent claims that the facility
operates pursuant
to 35 Ill. Adm. Code 703.123(a) and 722.134(a), as a large quantity generator of
hazardous waste which is treated on-site in tan, kswithout a RCRA permit or interim
status.” Complaint, at ¶12. (Emphasis added.) Flex-N-Gate was required to answer the
allegat ion that Complainant m
,
adnot eto
speculate about what allegation Complainant
may have intended to make and answer what Flex-N-Gate thinks Complainant meant to
say. Flex-N-Gate accurately denied the allegation that Complainant made, and Flex-N-
Gate’s Answer was not “evasive.”
D.
Complainant was not Prejudiced by Flex-N-Gate’s Answer
.
Complainant also argues that “[b]ecause of respondent’s evasive answer to
paragraph 12 of the complaint, complainant was forced to file a mot ion t o strike the
answer, and forced to engage in a second round of discovery, in order to extract the truth
from respondent.” Motion for Sanctions, at ¶10. This simply is not the case.
As discussed above, Flex-N-Gate’s Answer was not “evasive.”
In addit ion, Flex-N-Gate’s Answer did not “force” Complainant “to file a mot ion
to strike the answer . . . in order to extract the truth from respondent,” or for any other
reason. Presumably, by “the truth,” Complainant means the fact that the facilit y at issue
in this matter manages some hazardous waste under the 90-day accumulation provisions
of 35 Ill. Admin. Code §§ 703.123(a) and 722.134(a). However, Flex-N-Gate made clear
that this was the case even before Flex-N-Gate filed its Answer, and thus, before
Complainant filed his Mot ion to Strike t hat Ans.wer
8
Specifically, Flex-N-Gate filed its Answer on March 3, 2005. Four months before
that date, on November 3, 2004, Flex-N-Gate filed its Response to Complainant’s Motion
to Join Agency as Party in Interest and to Extend Time to Respond to Motion to Dismiss
(“Motion to Join Agency”). In support of that Response, Flex-N-Gate filed the Affidavit
of James Dodson, paragraph eight of which stated:
Other wastestreams that Flex-N-Gate produces are stored on-site for less
than 90 days and then shipped off-site for disposal, and Flex-N-Gate
considers this activit y to be exempt from RCRA per mitt ing requirements
under 35 Ill. Admin. Code § 722.134(a).
Exhibit A to Response to Motion to Join Agency at ¶8. (Emphasis added.)
Paragraph nine of that Affidavit stated:
Thus, Flex-N-Gate does not now claim, nor has it ever claimed, “that the
facility operated” pursuant to just one exemption from RCRA permitt ing
requirements (“Sections 703.123(a) and 722.134(a)” or otherwise), as
Complainant alleges in paragraph one his Mot ion to Join Age ncy.
Id.
at ¶9.
Thus, months before Complainant filed his Mot ion to Strike, Flex-N-Gate had
clearly stated, in a sworn document, that (1) it managed some o f the facilit y’s hazardous
waste under Sections 722.134(a) and 703.123(a), and (2) that it understood Complainant
to be alleging that the facilit y managed all of its waste under those provisions (and further
that this was not the case). Flex-N-Gate could not have been clearer regarding its
operations and its understanding o f Complainant’s allegations. Thus, Flex-N-Gate does
not understand how its Answer – which, as discussed in Flex-N-Gate’s Response to
Complainant’s Mot ion to Strike Answer, is complet ely consiste nt with that earlier sworn
document – could have caused Complainant any co nfusio n.
9
Likewise, Flex-N-Gate’s Answer did not cause Complainant to need “to engage in
a second round of discovery.” As noted above, Flex-N-Gate made clear in November
2004, through Jim Dodson’s Affidavit filed in support of Flex-N-Gate’s Response to
Complainant’s Motion to Join Agency, that it managed some hazardous waste “under 35
Ill. Admin. Code § 722.134(a).” Exhibit A
to Response to Motion to Join Agency at ¶8.
In fact, in his Motion to Strike Answer, Complainant cited to Mr. Dodson’s affidavit as
an “admission that [Flex-N-Gate] claimed exemption pursuant to Section 722.134(a)
.”
Motion to Strike Answer at ¶10. (Emphasis added.) If Complainant considered Mr.
Dodson’s Affidavit to be such an “admissio n” when he filed his Motion to Strike in
March 2005, then no need existed for Complainant to later “engage in a second round of
disc ove r y.”
Furthermore, on April 14, 2005 (see Notice of Service of Discovery Documents,
dated April 14, 2005), in response to Complainant’s Interrogatories, Flex-N-Gate again
made clear that it manages some of the facility’s hazardous waste under the 90-day
accumulation provision, stating in relevant part as follows in response to Complainant’s
Interrogatory No. 3:
3.
By which provisions has respondent, prior to August 5, 2004,
claimed e xempt ion from the RCRA permit requirement for the
Guardian West facility?
ANSWER:
First, the Guardian West facilit y which is the subject o f this
action (“Facilit y”) has “claimed exempt ion from the RCRA per mit
requirement” for any material contained in the Facilit y’s wastewater
treatment unit pursuant to the “wastewater treatment unit exemption”
contained in 35 Ill. Admin. Code 703.123(e).
10
Second, the Facility has “claimed exemption from the RCRA permit
requirement” for certain other wastestreams which it sends off-site for
treatment, storage or disposal pursuant to 35 Ill. Admin. Code 703.123(a
.
)
Flex-N-Gate’s Answers to Complainant’s Interrogatories, relevant portions of which are
attached hereto as Exhibit B
, Answer to Interrogatory No. 3.
Thus, by the time that Complainant mailed his Supplementa l Request for
Admission to Flex-N-Gate (i.e., April 27, 2005; sCertee
ificate of Service filed by
Complainant with Board), Flex-N-Gate had stated o n two occasions, in sworn docu,ments
that it managed some hazardous waste under the 90-day accumulation provision.
Therefore, Complainant’s Supplementa l for Admission was superfluous; all it resulted in
was a third statement by Flex-N-Gate of the same thing it had said, in sworn documents,
two times before. Thus, no reason existed for Complainant to serve his Supplementa l
Request for Admission No. 1, and Flex-N-Gate does not understand why Complainant
decided t o serve it in the first place. Regardless, any cost t hat Complainant incurred in
serving this Request to gain the same evidence for a third time was not the fault of Flex-
N-Gate.
E.
Section 101.800 Does Not Provide for the Monetary Sanctions
Complainant Seeks.
Finally, even if grounds did exist to sanction Flex-N-Gate (which is not the case),
Section 101.800 of the Board’s procedural rules does not provide for the monetary
sanctions Complainant seeks. As noted above, the Board has held that “Section 101.800
does not allow the Board to monetarily sanction the offending party.” McDonough
, PCB
No. 00-163, 2004 Ill. ENV LEXIS 575, at **5-6. However, Complainant prays that the
Board:
11
Direct the Hearing Officer to determine reasonable compensation for the
complainant for expenses and unnecessary work as a result of
respondent’s evasive pleading.
Motion for Sanctions at 2.
As discussed above, Flex-N-Gate’s Answer was not evasive; Complainant
therefore did not incur any “expenses” or undergo any “unnecessary work as a result of”
any “evasive pleading”; and no grounds exist to sanction Flex-N-Gate. Regardless,
again, Section 101.800 does not provide for monetary sanctions such as those
Complainant seeks.
III.
CONCLUSION
WHEREFORE, the Respondent, FLEX-N-GATE CORPORATION, respectfully
prays that the Illino is Po llution Contro l Board deny Co mplainant’s Motion for Sanctions
and award FLEX-N-GATE CORPORATION such other relief as the Illinois Pollution
Control Board deems just and proper in the premises.
Respectfully submitted,
FLEX-N-GATE CORPORATION
R
e
s
p
o
n
d
e
n
t
,
By:/s/ Thomas G. Safley
One of Its Attorneys
Dated: June 24, 2005
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:003/Fil/Response to Motion for Sanctions
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
C om pl ai n an t,
)
)
v.
)
PCB 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
MOTION FOR LEAVE TO FILE REPLY
IN SUPPORT OF MOTION FOR PROTECTIVE ORDER
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and for its Motion for Leave to
File Reply in Support of Motion for Protective Order, states as fo llows:
1.
On April 21, 2005, the parties participated in a status conference with the
Hearing Officer. See
Hearing Officer’s April 21, 2005, Order.
2.
On May 27, 2005, Flex-N-Gate filed its Motion for Protective Order.
3.
Pursuant to 35 Ill. Admin. Code §§ 101.502(a) and 101.616(d), Flex-N-
Gate directed that Motion to the Hearing Officer. See
Motion for Protective Order.
4.
On June 2, 2005, the parties participated in another status conference with
the Hearing Officer. See
Hearing Officer’s June 2, 2005, Order.
5.
Following the June 2, 2005, status conference, the Hearing Officer issued
an Order which provides in relevant part that, “[i]n the interest of administrative
economy, the hearing officer will reserve ruling on the [parties’] outstanding discovery
mot ions u ntil the Board rules on [Flex-N-Gate’s] mot ion for summary judgment.” Id.
6.
On or about June 6, 2005, Complainant filed his Response to Motion for
Protective Order.
2
7.
In that Response, Complainant characterizes the parties’ conversation with
the Hearing Officer during the April 21, 2005, status conference and characterizes an
Order allegedly made by the Hearing Officer during that status conference. See
Complainant’s Response to Motion for Protective Order, at ¶1.
8.
The undersigned participated in the April 21, 2005, status conference, and
disagrees with Co mplainant’s characterizat ion of the parties’ conversat ion with the
Hearing Officer during that status conference and with Complainant’s characterization o f
the Order allegedly made by the Hearing Officer during that status conference. Affidavit
of Thomas G. Safley, attached hereto as Exhibit A , at ¶¶3, 4.
9.
Section 101.500(e) of the Board’s procedural rules provides that a party
that files a Motion before the Board may file a Reply in support of that Motion if
“permitt ed by the Board or the hearing officer to prevent material prejudice.”
10.
Flex-N-Gate would be materially prejudiced if the Hearing Officer bases
her decision on Flex-N-Gate’s Motion for Protective Order on Complainant’s
characterizat ion of the April 21, 2005, status conference wit hout providing Flex-N-Gate
the opportunity to file a Reply addressing that characterization, which Flex-N-Gate
considers to be incorrect. See
Ex hibit A
.
11.
Thus, in the event that the Hearing Officer reverses her decision to reserve
ruling on Flex-N-Gate’s Mot ion for Protective Order “until the Board rules on t he motion
for summary judgment,” or in the event that the Board’s rulings on Flex-N-Gate’s
Motions for Summary Judgment do not render Flex-N-Gate’s Mot ion for Protective
Order and the Parties’ other pending discovery motions moot, Flex-N-Gate respectfully
3
mo ves t he Hearing O fficer to grant it leave t o file a Reply in Support of its Motion for
Protective Order to address the issue described above.
WHEREFORE, Respondent, FLEX-N-GATE CORPORATION, respectfully
moves the Hearing Officer to grant FLEX-N-GATE CORPORATION leave to file a
Reply in Support of its Motion for Protective Order as set forth above, and to award
FLEX-N-GATE CORPRATION all other relief just and proper in the premises.
Respectfully submitted,
FLEX-N-GATE CORPORATION
R
e
s
p
o
n
d
e
n
t
,
Dated: June 24, 2005
By:/s/ Thomas G. Safley
One of Its Attorneys
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:003/Fil/Motion for Leave to File Reply in Support of Motion for Protective Order
