CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
JUN
27 2005
Complainant,
)
STATE OF ILliNOIS
)
Pollution Control Board
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
Respondent. .
)
CERTIFICATE OF SERVICE
I, the undersigned, certify that, on the ~
day of June, 2005, I served the listed
documents, by first class mail, upon the listed persons:
RESPONSE TO MOTION FOR SUMMARY JUDGMENT
RESPONSE TO MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNTS II
-VI
AFFIDAVIT IN SUPPORT OF RESPONSES TO MOTIONS FOR SUMMARY
JUDGMENT
Thomas G. Safley
Hodge Dwyer Zeman.
3150 Roland Avenue
Post Office Box 5776
Springfield, IL 62705-5776
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph
Suite 11-500
Chicago, Illinois 60601
Iv~o\?~jb~~F’ ~
Morton F. Dorothy, Complainant
Carol Webb
Hearing Officer, IPCB
1021 North Grand Avenue East
Post Office Box 19274
Springfield, IL 62794-9274
Morton F. Dorothy
104
W University,
SW Suite
Urbana IL 61801
217/384-1010
MORTON F. DOROTHY,
vs.
)
No. PCB 05-049
)
RE CE VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOAI~bERKSOFFICE
CHAMPAIGN COUNTY, ILLINOIS
JUN
272005
MORTON F. DOROTHY,
)
p~J~iControl Board
Complainant,
)
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
RESPONSE TO MOTION FOR SUMMARY JUDGMENT
Complainant Morton F. Dorothy says the following for his response to
respondent Flex-n-gate Corporation’s motion for summary judgment filed on or about
May 27, 2005.
INTRODUCTION
This case involves an accident in which sulfuric acid spilled onto hazardous
waste, resulting
in a
release of hydrogen
sulfide, a toxic gas. Several workers
were sickened as a result of exposure to unknown levels the gas. The accident
demonstrated a weakness in the Section 725.151 contingency plan for the
facility in that the workers lacked training, and monitoring and safety equipment,
to safely deal with this type of incident.
2.
According to all information available to the complainant, respondent has not yet
amended its contingency plan to address this type of accident. Although
complainant has not yet amended to complaint to so allege, this case represents
continuing, intentional violation of Board rules protecting the environment and
worker safety at a hazardous waste facility.
3.
The complaint in this case is a “softball” which complainant deliberately restricted
to violations relevant to a specific incident which could be easily fixed by
amending the contingency plan and improving the operating practices in the
sump area, thereby protecting the lives of people who work in this factory, as
well as fire fighters who need to be officially warned of a hydrogen sulfide hazard
so they can plan for this contingency. The most expensive item would be safety
equipment needed to deal with a future hydrogen sulfide emergency, which
equipment would cost about $2,000.
I
4.
In the course of discovery, respondent has now admitted that the facility actually
had the required safety equipment on hand, but Denny Corbett, the safety
manager, failed or refused to produce the equipment during the incident.
Whetherthis was out of ignorance, incompetence or malice remains to be seen.
Nonetheless, with the needed equipment already on hand, the cost of
compliance is virtually nil. By filing these hooligan motions, respondent is
seeking to delay this action, recklessly endangering lives for no economic
purpose whatsoever.
a.
OSHA rules require monitoring of tanks for hydrogen sulfide prior to
‘1permitted entry”. The equipment is used routinely in a context other than
emergency response.
5.
The complaint was filed on September 9, 2004. Respondent filed a motion to
dismiss on October 12, 2004. Complainant responded on November 3, 2004,
supplemented on November 15, 2004. On February 3, 2005, the Board denied
the motion to dismiss.
6.
Respondent answered the complaint on March 4, 2005. The parties have since
engaged in discovery aimed at developing the facts in this case in preparation
for hearing. Discovery has been delayed during the pendency of the motions for
summaryjudgment.
7.
The motions for summary judgment are not based on any facts adduced during
discovery. They appear rather to be a repetition of the legal arguments advanced
in the motion to dismiss, which the Board has already denied.
8.
During the course of discovery, respondent has made admissions that establish
that the contingency plan was deficient ab initio, in ways completely independent
of the incident alleged in the complaint. At the conclusion of discovery,
complainant intends to amend the complaint alleging these additional violations,
and to allege continuing and intentional violations.
FACILITY DESCRIPTION
9.
The facility description provided on p. 2-6 of the motion is generally accurate
except as follows.
a.
Although a part of the floor is sometimes hosed down each shift, the
hosing is done around the periphery, towards the tanks. Under the tanks
and catwalk there is an accumulation of sludge and contaminated debris,
in addition to the hose water and spilled liquids from the tanks. The sludge
2
and contaminated debris is not, and cannot be, pumped to the wastewater
treatment unit. The sludge and
contaminated debris is hazardous waste.
The sludge and contaminated debris was not removed from the
plating
room floor between November 2002 and August 2004. Complainant
contends that this practice is itself storage of hazardous
waste, and that
respondent is in violation of the accumulation time limitations of
Section
722.134 for this reason alone.
b. The sludge and contaminated debris on the plating room floor impedes
the flow of
liquids to the pits,
so that liquid ponds in areas, slowly
percolating through the sludge toward the pits. The movement of liquid on
the plating room floor is so slow that large amounts of liquid remain even
after the line has been shut down for more than 2 weeks.
c.
Contrary to respondent’s assertion on p. 4 of the motion, the longest time
that liquid normally remains on the floor is much more than “a few hours”.
It is indeed measured in weeks.
d.
The sulfide that was the source of the release may have been produced
by chemical or biological reactions in the sludge and debris, and
accumulated liquids, that were allowed to stand far longer than the facility
was designed for.
e.
Whether the sludge dryer has since been removed is irrelevant to the time
frame of the complaint. (Pages 4 and 24 of the motion)
EXTENT OF THE SULFURIC ACID SPILL
10.
On page 6 - 8 of the motion for summary judgment,
respondent presents an
account of the acid spill that attempts to minimize the amount and concentration
of the acid spilled. This is not consistent with what complainant observed as a
witness to the immediate aftermath of the spill, and is not consistent with the
evidence produced in discovery. Furthermore, respondent has not identified any
witnesses or evidence that it intends to introduce at hearing to support its
account of the incident.
HYDROGEN SULFIDE GAS PRODUCTION
11.
In the course of discovery, respondent has produced a technical argument to the
effect that hydrogen sulfide production was impossible in this accident. The
technical argument was produced by a person who, although he may be
qualified as an expert, did not observe the incident. In addition, the technical
argument includes a large number statements of fact with which the complainant
3
disagrees.
12.
Complainant was present during the incident and directly observed the
production of hydrogen sulfide gas. Most of the other witnesses whose accounts
have been produced in discovery have given accounts that are consistent with
hydrogen sulfide production. Some of these witnesses also made statements to
complainant during the incident that indicated that they agreed with
complainant’s assessment at the time.
13.
Respondent has refused to name any witnesses or other evidence that it intends
to produce at hearing to show that the hydrogen sulfide emission did not occur.
The only witness who appears to have been in a position to testify to this seems
to be the safety manager, Denny Corbett, who, during the incident, voiced no
disagreement with complainant’s assessment, and who has made numerous
false statements in connection with this incident, and whose testimony would
therefore not be believable.
COMPLAINANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
14. Complainant has filed a separate motion for partial
summary judgment with
respect to Count I. The easy way to dispose of this case
would be to grant that
motion, which
would be dispositive of this motion.
15. Respondent has admitted that it is conducting hazardous waste
treatment and
storage operations
without a RCRA permit:
Flex-N-Gate admits that it is “a large quantity generator of hazardous
waste.” Flex-N-Gate admits that it treats some of its hazardous waste “on-
site in tanks,” but denies that it treats all of its hazardous waste “on-site in
tanks.” Flex-N-Gate admits that it does not have “a RCRA permit or
interim status”. To the extent that Request to Admit No. 8 makes any
other statements of fact, Flex-N-Gate denies the same. (Request to
Admit, par. 8)
16.
Respondent has also made the following admission:
Respondent claims exemption from the RCRA permit requirement
pursuant to 35 III. Adm. Code 703.123(a) and 722.134(a) with respect to
one or more wastes generated by the Guardian West facility. (Response
to Supplemental Request to Admit, par. 1)
17.
Section 103.204(d) provides that:
4
Any facts constituting an affirmative defense must be plainly set forth
before hearing in the answer or in a supplemental answer, unless the
affirmative defense could not have been known before hearing.
18.
The exemptions from the RCRA permit requirement must be raised by affirmative
defense: in order to notify the complainant that respondent intends to rely on that
defense; in order to list in the pleadings the facts respondent intends to prove to
establish that the exemption applies to the case; in order to afford complainant
the opportunity to admit or deny the facts ahead of hearing; and, in order to
establish a framework by which the relevance of evidence can be decided during
discovery and at hearing.
a.
On page 31 of the motion, respondent argues that affirmative defenses
before the Board are limited to general legal defenses such as laches.
b.
The exemptions from the permit requirement operate in the same way as
the general legal defenses in that they are “so what” defenses: even if the
facts in the complaint are taken as true, there are other facts, not alleged
in the complaint, which, if proved, would defeat the complaint.
i.
For example, in this case, complainant has alleged, and
respondent has now admitted, that respondent is conducting
hazardous waste treatment and storage operations without a
RCRA permit. Respondent could still win by affirmatively alleging
and proving compliance with the exemption in Section 722.134.
19. Respondent has also argued that complainant has the burden of pleading,
and
proving, non-compliance with the
permit exemptions.
a.
If Section 21(f) of the Act itself contained an exemption within the
operative words of the
permit requirement, the burden would be on the
complainant to
plead and prove non-compliance with the exemption.
b.
In this case,
however, the exemptions are located in the regulations as
complicated rules that stand by themselves.
20.
Requiring the complainant to allege and prove non-compliance with the RCRA
permit exceptions would require the complainant to draft an enormous complaint
in which the complainant attempted to list all of the permit exceptions, together
with the peculiar conditions ofeach, and allege non-compliance with those
conditions.
a.
As a matter of administrative efficiency, it is much simpler to require the
5
respondent to list, by way of affirmative defense, which exceptions it
seeks to rely on, thereby reducing the volume of paper needed to define
the issues.
b.
As a matter of public policy, people who are in the business of managing
hazardous waste need to either get a RCRA permit, or else make a
conscious decision to operate pursuant to an exception, and collect and
maintain the documentation needed to establish that they qualify for the
exception. If a complaint is filed against them, they should be expected to
have a simple answer as to which exception applies, and the required
documentation already prepared, so that pleading the exception
should
impose no burden on them whatsoever.
i.
Respondent is suggesting
a system that would encourage people
managing hazardous waste to take a “we
probably qualify for some
exception or
another,
so let’s hope we don’t get
caught, but if
we
do, let’s go to the hearing, and then argue that we
qualify for an
exemption” attitude.
ii.
Respondent has
clearly taken this approach in this case. If Flex-N-
Gate had consciously decided
before the incident that the plating
room floor was part of a “wastewatertreatment unit” so it did not
have to
follow the contingency plan on the plating room floor, it
would have included this in the contingency plan and provided
employee training to that effect. Moreover, counsel would have
filed
a motion to dismiss focused on the wastewater treatment unit
argument, instead of the
multiple exemptions argued in that motion.
Counsel is clearly making after-the-fact excuses, and has decided
that the wastewater treatment unit is the best of the earlier
excuses. Requiring the respondent to plead the exemption up front
as a defense would be a limitation on this
rummaging for excuses
which is delaying this case.
c.
Most of the
exceptions to the RCRA permit requirement depend on
information that is peculiarly
within the exclusive knowledge of the
respondent, such as the maintenance of documentation by the person
managing the hazardous waste. An outsider observing an apparent
violation of the permit requirement has no way of knowing whether the
operator is maintaining the required documentation. Requiring the
complainant to allege non-compliance would require the complainant to
allege that the required documentation was not being kept, without, prior
to discovery, having any way of knowing if the allegation were true.
6
d.
Respondent is arguing that, in RCRA enforcement cases in general, the
complainant should be required to take the case to hearing without
knowing which permit exemptions are being raised, and that respondent
should be allowed to comb through the rule books on closing argument in
search of additional exemptions, without affording complainant the
opportunity to
present evidence that the exemption does not apply.
21. In summary, respondent has admitted that it is conducting hazardous waste
treatment and storage operations
without a RCRA permit, and has not bothered
to allege that it is exempt under Section 722.134, or any other provision. The
Board should grant summaryjudgment as to Count I pursuant to complainant’s
motion, and deny the instant motion.
WASTEWATER TREATMENT UNIT EXEMPTION
22.
On p. 11 et seq of the motion for summary judgment, respondent argues that the
issue of whether the equipment that the facility uses to treat wastewater meets
the definition of “wastewater treatment unit” is central to complainant’s case.
Complainant disagrees.
23.
Respondent has not raised the “wastewater treatment unit” exemption by way of
affirmative defense or otherwise in its answer to the complaint. It is therefore not
relevant.
24.
If this issue were properly raised, complainant would dispute as a matterof fact
whether the area underthe plating tanks, in a process area of the building, is
part of the “wastewater treatment unit”, which is mostly located in a different area
of the building.
a.
Complainant would also question, as a matter of fact, whether the plating
room floor is a “tank” as argued on p. 16.
25.
Complainant believes that, because the facility claims exemption from the RCRA
permit requirement pursuant to Section 722.134(a), that Section requires
preparation of a compliance plan “for the facility”, including those areas that
might, by themselves, be exempt from the RCRA permit requirement.
BURDEN OF PROVING COMPLIANCE WITH PERMIT EXEMPTION
26.
Respondent is arguing on page 20, 30, 33 of the motion for summary judgment
that complainant has the burden of proving that respondent does not meet any of
the exemptions from the RCRA permit requirement.
7
a.
As discussed above, complainant
believes these exemptions are
irrelevant because respondent has not
raised them by affirmative defense.
b. As a general rule, the person raising a defense by way of affirmative
defense has the burden of proof as to that defense. There are, however,
exceptions that place the burden of proof on the
complainant, once the
respondent has raised the defense in the pleadings.
27.
Among the conditions of Section
722.134 is
a requirement to have and follow a
contingency plan “for
the facility”. Counts II through VI of the complaint allege
violations of the contingency plan requirement. One consequence of violating the
contingency plan requirement is imposition of the
permit requirement.
a.
This makes sense in this case,
where respondent’s lack of a proper
response to the incident demonstrates that respondent is in need of closer
Agency supervision, including advance review of its contingency plan as
part of the permit application process.
28.
The regulations do not require any application for approval to operate a
hazardous waste facility without a permit under Section 722.134, orto operate a
“wastewater treatment unit” as argued by respondent. Respondent is therefore
operating a self-declared exempt RCRA facility. Respondent
is arguing that it is
entitled to a presumption that its
unvoiced claim of exemption is valid, and that
the complainant’s burden of proof in any RCRA enforcement action is to prove
that none of the myriad of exemptions applies.
29. Complainant has alleged violation of the contingency plan requirements in
Counts II through VI, and has the burden of proof in connection with those
Counts. Complainant believes that he will meet that burden of proof at hearing,
and will thereby affirmatively show a failure of the Section 722.134 conditions,
and thereby a violation ofthe permit requirement.
a.
There is, however, a possibility that the Board would find that the
evidence presented was insufficient to establish a violation ofthe
contingency plan requirements, but also insufficient to establish
compliance with those requirements. Complainant believes that, in such a
situation ofequipoise on the evidence, the Board should find respondent
in violation of the permit requirement by having failed to affirmatively
demonstrate that it qualified for the exemption.
ONE EXEMPTION AT A TIME?
30.
On pages 27 et seq., of the motion for summary judgment, respondent claims
8
that complainant is arguing that only one exemption from the RCRA permit can
apply at a time. This mischaracterizes complainant’s position.
31.
Section 722.134(a)(4) affirmatively requires a contingency plan “for the facility”.
The term “facility” includes units that may be exempt under other provisions, as
well as stuff that may be completely unrelated to RCRA. The “wastewater
treatment unit” exclusion, on the other hand, says nothing specific about
contingency plans. The obvious interpretation is that the
operator of a Section
722.134 facility has to prepare a contingency plan for the entire facility, including
any “wastewater treatment unit”.
a.
Conflict between these provisions would arise only if the “wastewater
treatment unit” exemption said specifically that the operator did not have
to prepare a contingency plan for the unit (in which case the more specific
language would control).
b.
Complainant believes these rules were written this way because it would
be impossible as a practical matter to prepare multiple contingency plans
for different portions of
a facility, and to provide meaningful training to
factory employees, while
drawing the convoluted distinctions counsel is
attempting to make.
c.
In preparing the actual
contingency plan for this facility, Flex-N-Gate did
not attempt to draw these
convoluted distinctions. Nor did it
provide
training to employees as to these distinctions. Flex-N-Gate instead
followed the straightforward interpretation offered by complainant, and
prepared a single contingency plan for the entire facility.
d. In the event the Board rules in favor of respondent on this argument,
complainant intends to file an amended complaint alleging that
respondent violated Board rules ab initlo by preparing a sham contingency
plan that did not reflect the legal interpretations held by respondent, which
respondent had no intention of carrying out, and by providing training to
employees that was incorrect.
32.
On page 41 etseq., respondent claims that “complainant’s position would render
the exclusion (for wastewater
treatment units) meaningless”. On the contrary,
that exclusion is not specifically directed at this oddball case involving
contingency plans for facilities that also claim exclusion under Section 722.134.
Facilities which have only a wastewater treatment unit are completely excluded
from the regulatory program. And, those units are excluded from most RCRA
requirements at facilities that are exempt under Section 722.134, and even at
RCRA permitted
facilities. The exclusion is very meaningful for those facilities.
9
THE CONTINGENCY PLAN ITSELF APPLIED TO THE ENTIRE FACILITY
33.
On page 36 of the motion for summaryjudgment, respondent argues that
the
“facility’s contingency plan did not apply to the facility’s” wastewater treatment
unit. Respondent has not, however, cited to any provision in the contingency
plan that so provided.
FAILURE TO FOLLOW THE PLAN ITSELF
34.
Count VI of the complaint alleges failure to follow the plan itself, as opposed to
the regulations. As has been established in discove~y~respondent produced a
document it described as a contingency plan to meet Board rules. It gave this
document to the Agency and local emergency response teams. That document
itself describes when the contingency plan is to be implemented, and what is to
be done. The document does not include any of the limitations and exceptions
respondent is now arguing. Even if the Board were to accept respondent’s
convoluted, after-the-fact, arguments with respect to Counts II
-
V, the Board
needs to hold respondent to compliance with the terms of the document
respondent itself drafted.
WHEREFORE complainant prays that the Board deny the motion for summary
judgment.
l~pcvr~L~1Tc)
~~Z-o’fl-i~
Morton F. Dorothy, Complainant
Morton F. Dorothy
104 W. University, SW Suite
Urbana IL 61801
217/384-1010
10
RE
C E ~V ED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARI~LERK’SOFFICE
CHAMPAIGN COUNTY, ILLINOIS
JoN
272005
MORTON F. DOROTHY,
)
Pofluton
STATE OF
ControlILLINOISboard
Complainant,
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
RESPONSE TO MOTION FOR PARTIAL SUMMARY JUDGMENT
AS TO COUNTS II- VI
Complainant Morton F. Dorothy says the following for his response to
respondent Flex-n-gate Corporation’s motion for partial summary judgment as to
Counts II - VI filed on or about May 27, 2005.
INTRODUCTION
1.
Complainant incorporates by reference the introductory material from his
response to the motion for partial summary judgment as to Count I.
EXTENT OF THE SULFURIC ACID SPILL
2.
On page 2 of the motion for partial summary judgment, respondent presents an
account of the acid spill that attempts to minimize the amount and concentration
of the acid spilled. This is not consistent with what complainant observed as a
witness to the immediate aftermath of the spill, and is not consistent with the
evidence produced in discovery. Furthermore, respondent has not identified any
witnesses or evidence that it intends to introduce at hearing to support its
account of the incident.
HYDROGEN SULFIDE GAS PRODUCTION
3.
On page 2, 3 and 48 of the motion for partial summary judgment respondent
denies that any release of hydrogen sulfide gas “could have occurred or did
occur”.
4.
Respondent has argued at several points that whether there was a hydrogen
I
sulfide release is “immaterial”. However, complainant has
alleged such a
release, and respondent has denied
this allegation (Par. 15 of the Complaint and
Answer). The issue is therefore “material”.
5.
In the course of discovery, respondent has produced a technical argument to the
effect that hydrogen sulfide production was impossible-in this accident. The
technical argument was produced by a person who, although he may be
qualified as an expert, did not observe the incident. In addition, the technical
argument includes a large number statements of fact with which the complainant
disagrees.
6.
Complainant was present during the incident and directly observed the
production of hydrogen sulfide gas. Most of the other witnesses whose accounts
have been produced in discovery have given accounts that are consistent with
hydrogen sulfide production. Some of these witnesses also made statements to
complainant during the incident that indicated that they agreed with
complainant’s assessment at the time.
7.
Respondent has refused to name any witnesses or other evidence that it intends
to produce at hearing to show that the hydrogen sulfide emission did not occur.
The only witness who appears to have been in a position to testify to this seems
to be the safety manager, Denny Corbett, who, during the incident, voiced no
disagreement with complainant’s assessment, and who has made numerous
false statements in connection with this incident, and whose testimony would
therefore not be believable.
BURDEN OF PLEAE~INGDEFENSES
8.
This case
involves the applicability of two exemptions from the RCRA permit
requirement: the large quantity generator exclusions of Section 722.134, and the
“wastewater treatment unit” exclusion argued, but not pled, by respondent.
9.
Section 103.204(d) provides that:
Any facts constituting an affirmative defense must be plainly set forth
before hearing in the answer or in a supplemental answer, unless the
affirmative defense could not have been known before hearing.
10. The exemptions from
the RCRA permit requirement must be raised by affirmative
defense: in order to notify the complainant that respondent intends to rely on that
defense; in orderto list in
the pleadings the facts respondent intends to prove to
establish that the exemption applies to the case; in order to afford complainant
the opportunity to admit or deny the facts ahead of hearing; and, in order to
2
establish a framework by which the relevance of evidence can be decided during
discovery and at hearing.
a.
On page 31 (of the motion for summary judgment), respondent argues
that affirmative defenses before the Board are limited to general legal
defenses such as laches.
b.
The exemptions from the permit requirement operate in the same way as
the general legal defenses in that they are “so what” defenses: even if the
facts in the complaint are taken as true, there are other facts, not alleged
in the complaint, which, if proved, would defeat the complaint.
I.
For example, in this case, complainant has alleged, and
respondent has now admitted, that respondent is conducting
hazardous waste treatment and storage operations without a
RCRA permit. Respondent could still win by affirmatively alleging
and proving compliance with the exemption in Section 722.134.
II.
Respondent has also argued, on pages 24, 35, 38, 40 and 45 of the motion for
partial summary judgment, that complainant has the burden of pleading, and
proving, non-compliance with the permit exemptions.
a.
If Section 21(f) of the Act itself contained an exemption within the
operative words ofthe permit requirement, the burden would be on the
complainant to plead and prove non-compliance with the exemption.
b.
In this case, however, the exemptions are located in the regulations as
complicated rules
that stand by themselves.
12.
Requiring the complainant to allege and prove non-compliance with the RCRA
permit exceptions would require the complainant to draft an enormous complaint
in which the complainant attempted to list all of the permit exceptions, together
with the peculiar conditions of each, and allege non-compliance with those
conditions.
a.
As a matter of
administrative efficiency,
it is much simpler to require the
respondent to list, by way
of affirmative defense, which exceptions it
seeks to rely on, thereby reducing the
volume of paper needed to define
the issues.
b.
As a matter of public
policy, people who are in the business of managing
hazardQus waste need to either get a RCRA
permit, orelse make a
conscious decision to operate pursuant to an exception, and collect and
3
maintain the documentation needed to establish that they qualify for the
exception. If a complaint is filed against them, they should be expected to
have a simple answer as to which exception applies, and the required
documentation already prepared, so that pleading the exception should
impose no burden on them whatsoever.
i.
Respondent is suggesting a system that would encourage people
managing hazardous waste to take a “we probably qualify for some
exception or another, so let’s hope we don’t get caught, but if we
do, let’s go to the hearing, and then argue that we qualify for
something” attitude.
ii.
Respondent has clearly taken the above approach in this case. If
Flex-N-Gate had consciously decided before the incident that the
plating room floor was part of a “wastewater treatment unit” so it did
not have to follow
the contingency plan on the plating room floor,
it
would have included this in the contingency plan and provided
employee training to that effect. Moreover, counsel would have
filed a motion to dismiss focused on the wastewater treatment unit
argument, instead ofthe multiple exemptions argued in that motion.
Counsel is clearly making after-the-fact
excuses, and has decided
that the wastewater treatment unit is the best of the earlier
excuses. Requiring the respondent to plead the exemption up front
as a defense would be a limitation on this rummaging
for excuses
which is delaying this case.
c.
Most of the exceptions to
the RCRA permit requirement depend on
information that is peculiarly
within the exclusive knowledge of the
respondent, such as the maintenance of documentation by the
person
managing the hazardous waste. An outsider observing an apparent
violation of the permit requirement has no way of knowing whether the
operator is maintaining the required documentation. Requiring the
complainant to allege non-compliance would require the complainant to
allege that the required documentation was not being kept, without, prior
to discovery, having any way of knowing if the allegation were true.
d.
Respondent is arguing that, in
RCRA
enforcement cases
in general, the
complainant should be
required to take the case to hearing without
knowing which permit exemptions are being raised, and that respondent
should be allowed to comb through the rule books on closing argument in
search of additional exemptions, without affording complainant the
opportunity
to present evidence that the exemption does not apply.
4
WASTEWATER TREATMENT UNIT EXEMPTION
13.
Respondent has argued, on pages 24, 35, 38, 40 and 45 of the motion for partial
summary judgment, that complainant has the burden of proving that the
equipment that the facility uses to treat wastewater does not meet the definition
of “wastewater treatment unit”.
14.
Respondent has not raised the “wastewater treatment unit” exemption by way of
affirmative defense or otherwise in its answer to the complaint. It is therefore not
relevant.
15.
Ifthis issue were properly raised, complainant would dispute as a matter offact
whether the area underthe plating tanks, in a process area of the building, is
part of the “wastewater treatment unit”, which is mostly located in a different area
ofthe building.
a.
Complainant would also question, as a matter of fact, whether the plating
room floor is a “tank”.
16. Complainant believes that, because the facility claims exemption from the RCRA
permit requirement pursuant to Section
722.134(a), that Section requires
preparation of a compliance plan “for the facility”, including those areas that
might, by themselves, be exempt from the RCRA
permit requirement.
BURDEN OF PROVING COMPLIANCE WITH PERMIT EXEMPTION
17.
As discussed above, respondent has admitted, but not alleged, that this facility is
conducting hazardous waste treatment and storage operations without a RCRA
permit under claim of exemption under Section 722.134(a). The following
discussion assumes that this claim has been properly raised. In the absence of
Section 722.134(a), respondent is operating a rogue RCRA facility which has not
qualified for interim status, but which is required to follow the rules of 35 III. Adm.
Code 725, and apply for a permit.
18.
Among the conditions of Section 722.134 is a requirement to have and follow a
contingency plan “for the facility”. Counts Il through VI of the complaint allege
violations of the contingency plan requirement. One consequence of violating the
contingency plan requirement is imposition ofthe permit requirement.
a.
This makes sense in this case, where respondent’s lack of a proper
response to the incident demonstrates that respondent is in need of closer
Agency supervision, including advance review of its contingency plan as
part of the permit application process.
5
19.
The regulations do not require any application for approval to operate a
hazardous waste facility without a permit under Section 722.134, or to operate a
“wastewater treatment unit” as argued by respondent. Respondent is therefore
operating a self-declared exempt RCRA facility. Respondent is arguing that it is
entitled to a presumption that its unvoiced claim of exemption is valid, and that
the complainant’s burden of proof in any RCRA enforcement action is to prove
that none of the myriad of exemptions applies.
20.
Complainant has alleged violation of the contingency plan requirements in
Counts II through VI, and has the burden of proof in connection with those
Counts. Complainant believes that he will meet that burden of proof at hearing,
and will thereby affirmatively show a failure of the Section 722.134 conditions,
and thereby a violation of the permit requirement.
a.
There is, however, a possibility that the Board would find that the
evidence presented was insufficient to establish a violation of the
contingency plan requirements, but also insufficient to establish
compliance with those requirements. Complainant believes that, in such a
situation of equipoise
on the evidence, the Board should find respondent
in violation ofthe
permit requirement by having failed to affirmatively
demonstrate that it qualified for the exemption.
THE UNCONTROLLED PRODUCTION OF A GAS FROM HAZARDOUS WASTE AT
A HAZARDOUS WASTE MANAGEMENT FACILITY IS ENOUGH TO TRIGGER THE
CONTINGENCY PLAN - Introduction
21.
Respondent has produced an impressive argument suggesting that uncontained
hydrogen sulfide gas is neither a hazardous waste nor a hazardous waste
constituent under RCRA. The problem with this argument is that it reaches an
absurd conclusion: that the release of a toxic gas from hazardous waste is not
the sort of thing that the contingency plan is supposed to deal with.
22.
At the time the RCRA rules were adopted, most plating such as that done at
Guardian West was done in cyanide solution. This was an easier process to
control, and it produced a better product. The problem with cyanide plating was
that it produced hazardous waste that could generate a toxic gas, hydrogen
cyanide, if the waste came into contact with acid. The RCRA rules created a
special category, “reactive waste”, mainly to address cyanide plating wastes.
Furthermore, the contingency planning requirements were obviously intended to
address the then-common situation in which cyanide plating wastes would be
mixed with acidic wastes, producing toxic emissions.
6
23.
The Guardian West facility was specifically designed as a new facility to perform
only non-cyanide plating. This was done for
two reasons: to avoid the danger of
evolution of a toxic gas in an acid spill and to avoid the regulatory problems
associated with cyanide plating.
24.
There is a second type of reactive waste, sulfide-bearing waste. Although this
type of waste is not normally associated with the plating industry, it exhibits
precisely the same problem: if the waste comes into contact with acid, it
produces a toxic gas. The regulations governing cyanide and sulfide reactive
wastes are identical.
25.
Flex-N-Gate appears to have an attitude that, while hydrogen cyanide is “really
bad”, hydrogen sulfide is “not so bad”. On the contrary, the primary toxic
mechanism for the two gasses,. suffocation by binding to hemoglobin, is the
same. Of the gasses, hydrogen sulfide is slightly more toxic by many measures.
Although hydrogen sulfide is somewhat less dangerous because its foul smell is
a warning of its presence, it is more dangerous because the gas quickly numbs
the sense of smell. Of the two, hydrogen sulfide produces a far greater body
count in industrial accidents.
26.
Guardian West has introduced sulfide into the plating process. This is done in
order to create a high-sulfur layer of nickel within the plated product, as a part of
a controlled corrosion system that prolongs the life of the product. As illustrated
by this incident, the sulfide appears to be causing exactly the same problems as
cyanide plating.
a.
Complainant believes that Guardian West could make simple, inexpensive
modifications to its contingency plan and management
practices that
would eliminate this problem, without banning sulfide from the process.
b.
Although respondent has not yet responded to discovery on this point,
other forms of reduced sulfur, such as organic sulfonates, could be
present in the cleaning solutions used in the immediate vicinity of the spill.
27.
In arguing that the production of hydrogen sulfide is exempt from RCRA,
respondent is also arguing that the production of hydrogen cyanide in an
identical accident would also be exempt. If hydrogen sulfide is no problem, why
doesn’t Guardian West change over to cyanide plating, producing a cheaper,
better product?
Complainant agrees that Hydrogen Sulfide is not a “Hazardous Waste
Constituent”
7
28.
After reviewing respondent’s arguments, complainant is forced to agree that the
release of hydrogen sulfide, or hydrogen cyanide, does not amount to the
release of a “hazardous waste constituent” as that term is used in the
regulations.
a.
This appears to apply even to sulfide and cyanide bearing reactive
wastes, since the regulations do not identify hydrogen sulfide or hydrogen
cyanide as “hazardous waste constituents” even for those wastes, the
very definition of which, and the reason for regulation of which, is the
tendency to evolve those gasses.
b.
The reason for this omission appears to be that neither hydrogen sulfide
nor hydrogen cyanide would normally be a “constituent” of a waste
exposed to the atmosphere. They would be formed only upon the addition
of acid to the waste, and would exit to the atmosphere soon thereafter.
Hydrogen Sulfide Emitted was a Portion of the Hazardous Waste Itself
29.
The source of the sulfide in the hydrogen sulfide was the hazardous waste
present on the plating room floor. Upon contact with acid, the sulfide in that
waste was converted to hydrogen sulfide, which was released to the
atmosphere. A portion of the hazardous waste, the sulfide contained within it,
was released to the atmosphere. The release was therefore a release of a
portion of the hazardous waste itself, after it has been converted to a more
hazardous form.
a.
Compla!nant is
not arguing that the waste was hazardous because of its
sulfide content.
Rather, the waste was hazardous for reasons unrelated to
this incident, and
a portion of the waste, the sulfide, was released.
Hydrogen Sulfide was part of the Hazardous Waste before it became an
“Uncontained Gas”
30. Complainant is also not arguing that, by accidently
allowing the addition of acid
to the waste, respondent was disposing of uncontained hydrogen
sulfide (p. 5,
11 of the motion for
partial summary judgment.) Rather, the waste on the floor
was a “solid waste”, and was hazardous, for reasons
unrelated to this incident,
and
a portion of that hazardous waste, the sulfide, was released, triggering the
contingency plan.
a.
Complainant Stands by his
analysis of Helter v. AK Steel in his response
to the motion to dismiss. That case involved a release of
a gaseous (non-
waste) product from a leaking pipe. The court properly held that, because
8
the gas was not a waste prior to the time it was leaked, it was
“uncontained “at the time it became a waste, and was therefore not
subject to RCRA. That court clearly stated that its ruling would be different
if the pipe had been carrying a gas that was already a “solid waste” under
the rules.
b.
Although Helter v. AK Steel is a federal court case, it was a trial court
decision by a federal court acting in exactly the same capacity as the
Board does in Illinois. Although it is certainly helpful for the Board to
consider a sister court’s decision, this is not a higher court decision that is
a precedent binding on the Board, which is legally free to reach its own
conclusions.
i.
Helter v. AK Steel was an unreported decision which complainant
went to great lengths to locate. The Board needs to require
persons using unreported decisions to provide copies to the other
parties who do not have access to on-line reporting services. The
practice allowing citation to LEXIS, a for-pay, on-line service, gives
yet another advantage to people with money appearing before the
Board.
c.
Respondent also cites to a USEPA document concerning process vents
and equipment leaks (p 14 of the motion for partial summaryjudgment).
Again, the complainant is not attempting to impose the RCRA regulations
on the escaping gas. On the contrary, complainant is arguing that the
unexpected, accidental release of the gas, from material that was already
a hazardous waste, was a proper trigger for implementation ofthe
contingency plan to protect worker safety and the environment.
i.
If respondent were routinely adding acid to the waste and venting
the hydrogen sulfide to the atmosphere, the practice might come
under process vent rules cited by respondent. The contingency
plan would not be implemented to deal with an expected, routine
release.
VIOLATION OF THE CONDITIONS OF THE PLAN ITSELF
31.
The contingency plan itself provides that it must be implemented whenever there
is “a spill that caused the release of toxic fumes” (page 6-4 of the contingency
plan). Count VI alleges a failure to follow the provisions ofthe plan itself, as
opposed to the regulations governing the plan.
a.
As has been established in discovery, respondent produced a document it
9
described as a contingency plan to meet Board rules. It gave this
document to the Agency and local emergency response teams. Even if
the Board were to accept respondent’s convoluted, after-the-fact,
arguments with respect to Counts II
-
V, the Board needs to hold
respondent to compliance
with the terms of the document respondent
itself drafted
32.
On pages 31 and 34 of the motion for partial summary judgment, and attached
exhibit F, respondent is arguing that certain provisions of
the contingency plan
“were not focused on hazardous waste”, and were
therefore a portion of the
OSHA emergency response plan, but not the Board-required contingency plan.
a.
Respondent has been unable to point to a separate section of the
“Emergency Response and Contingency Plan” that was intended as the
contingency plan
meeting Board requirements. Instead, provisions that
are more focused on hazardous waste are mixed in with provisions more
focused on non-waste materials, often within the same sentence.
b.
Complainant might accept respondent’s two-plan argument if the two
plans were explicitly separated, with an understandable explanation as to
which plans applied to various portions of the facility, and if respondent
provided training as to the difference to workers responsible for
responding to emergencies.
c.
If the Board were to accept respondent’s arguments that it should be able
to avail itself of the ambiguities in the plan it wrote, complainant would file
an amended complaint alleging that the contingency plan was deficient ab
initio, independent of this incident, in that it failed to describe what
respondent really intended to do in an emergency, and
that respondent
failed to provide appropriate training to workers.
FAILURE TO AMEND THE PLAN
33.
As disclosed in discovery to date, at least five workers were sickened by
exposure to the gas in this incident: Afiba Martin, Denny Corbett, Joseph Al-
Hussani, Regina Libbie and complainant.
34.
Count V of the complaint alleges failure to amend the plan in response to
changed circumstances (p. 43 of the motion for partial summary judgment). The
evolution of hydrogen sulfide from the waste on the plating room floor was clearly
an event that was not contemplated when the contingency plan was drafted. It
also changed the response necessary in an emergency, since it demonstrated
that emergency equipment and training in hydrogen sulfide was now needed at
10
the facility. This is true regardless of whether the incident alleged in the
complaint rose to the level that implementation of the contingency plan was
required in the incident.
a.
In the event there is a future, fatal hydrogen sulfide release at the facility,
the management will certainly be indicted for reckless homicide under the
Illinois Criminal Code, unless they have taken the steps required to
prevent a recurrence of this accident, and to provide proper training and
safety equipment. The whole point ofthe contingency planning
requirement is, however, to require hazardous waste operators to take
steps in advance to prevent accidents, as opposed to relying on the
Criminal Code for after-the-fact enforcement.
35.
In addition, respondent made a process change shortly before the hydrogen
sulfide release, with the introduction of HSA (“High Sulfur Additive”) 90 to the
process. This was “another changed circumstance” alleged in Count V that
should have triggered a review of the contingency plan to determine if this new
chemical was presenting new risks that needed to be addressed in the
contingency plan.
a.
Even if HSA-90 did not actually cause the release, respondent should
have “reviewed” the plan under Section 725.154(c).
b.
This allegation is also independent of respondent’s arguments concerning
the facts of the actual release.
WHEREFORE complainant prays that the Board deny the motion for partial
summaryjudgment a~to Counts II through VI.
Morton F. Dorothy, Complainant
Morton F. Dorothy
104 W. University, SW Suite
Urbana IL 61801
217/384-1010
11
BEFORE THE ILLINOIS POLLUTION CONTROL ~
CHAMPAIGN COUNTY, ILLINOIS
JUN 27
2005
MORTON F.
DOROTHY,
)
STATE OF ILLINOIS
Pollution Control Board
Complainant,
)
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
State of Illinois
)
SS
County of Champaign
)
AFFIDAVIT IN SUPPORT OF RESPONSES TO MOTIONS FOR SUMMARY
JUDGMENT
Complainant Morton F. Dorothy makes the following affidavit in support of his
responses to the motions for summary judgment in this case:
According to all information available to the complainant, respondent has not yet
amended its contingency plan to address this type of accident. This case
represents continuing, intentional violation of Board rules protecting the
environment and worker safety at a hazardous waste facility.
2.
The complaint in this case is a “softball” which complainant deliberately restricted
to violations relevant to a specific incident which could be easily fixed by
amending the contingency plan and improving the operating practices in the
sump area, thereby protecting the lives of people who work in this factory, as
well as fire fighters who need to be officially warned of a hydrogen sulfide hazard
so they can plan for this contingency. The most expensive item would be safety
equipment needed to deal with a future hydrogen sulfide emergency, which
equipment would cost about $2,000.
3.
The facility actually had the required safety equipment on hand, but Denny
Corbett, the safety manager, failed ~r refused to produce the equipment during
the incident. With the needed equipment already on hand, the cost of
compliance is virtually nil. By filing these hooligan motions, respondent is
seeking to delay this action, recklessly endangering lives for no economic
I
purpose whatsoever.
4.
The contingency plan was deficient ab initio, in ways completely independent of
the incident alleged in the complaint.
5.
Although a part of the floor is sometimes hosed down each shift, the hosing is
done around the periphery, towards the tanks. Under the tanks and catwalk
there is an accumulation of sludge and contaminated debris, in addition to the
hose water and spilled liquids from the tanks. The sludge and contaminated
debris is not, and cannot be, pumped to the wastewater treatment unit. The
sludge and contaminated debris is hazardous waste. The sludge and
contaminated debris was not removed from the plating room floor between
November 2002 and August 2004.
6.
The sludge and contaminated debris on the plating room floor impedes the flow
of liquids to the pits, so that liquid ponds in areas, slowly percolating through the
sludge toward the pits. The movement of liquid on the plating room floor is so
slow that large amounts of liquid remain even after the line has been shut down
for more than 2 weeks.
7.
The longest time that liquid normally remains on the floor is measured in weeks.
8.
The sulfide that was the source ofthe release may have been produced by
chemical or biological reactions in the sludge and debris, and accumulated
liquids, that were allowed to stand far longer than the facility was designed for.
9.
Respondent presents an account of the acid spill that attempts to minimize the
amount and concentration ofthe acid spilled. This is not consistent with what
complainant observed as a witness to the immediate aftermath of the spill, and is
not consistent with the evidence produced in discovery.
10.
In the course of discovery, respondent has produced a technical argument to the
effect that hydrogen sulfide production was impossible in this accident. The
technical argument was produced by a person who, although he may be
qualified as an expert, did not observe the incident.
11.
Complainant was present during the incident and directly observed the
production of hydrogen sulfide gas. Most of the other witnesses whose accounts
have been produced in discovery have given accounts that are consistent with
hydrogen sulfide production. Some of these witnesses also made statements to
complainant during the incident that indicated that they agreed with
complainant’s assessment at the time.
2
12.
Respondent has refused to name any witnesses or other evidence that it intends
to produce at hearing to show that the hydrogen sulfide emission did not occur.
The only witness who appears to have been in a position to testify to this seems
to
be
the safety
manager,
Denny Corbett, who, during the incident, voiced no
disagreement with complainant’s assessment, and who has made numerous
false statements in connection with this incident, and whose testimony would
therefore not be believable.
13.
As a matter of administrative efficiency, it is much simpler to require the
respondent to list, by way of affirmative defense, which exceptions it seeks to
rely on, thereby reducing the volume of paper needed to define the issues.
14.
As a matter of public policy, people who are in the business of managing
hazardous waste need to either get a RCRA permit, or else make a conscious
decision to operate pursuant to an exception, and collect and maintain the
documentation
needed to establish that they qualify for the exception. If a
complaint is filed against them, they should be expected to have a simple answer
as to which exception applies, and the required documentation already prepared,
so that pleading the exception should impose no burden on’them whatsoever.
15.
Respondent is suggesting a system that would encourage people managing
hazardous waste to take a “we probably qualify for some exception or another,
so let’s hope we don’t get caught, but if we do, let’s go to the hearing, and then
argue that we qualify for an exemption” attitude. Respondent has clearly taken
this approach in this case.
16.
It would be impossible as a practical matter to prepare multiple contingency
plans for different portions of a facility, and to provide meaningful training to
factory employees, while drawing the convoluted distinctions counsel is
attempting to make.
17.
Requiring the complainant to allege and prove non-compliance with the RCRA
permit exceptions would require the complainant to draft an enormous complain-t
in which the complainant attempted to list all of the permit exceptions, together
with the peculiar conditions of
each, and allege non-compliance with those
conditions.
18.
At the time the RCRA rules were adopted, most plating such as that done at
Guardian West was done in cyanide solution. This was an easier process to
control, and it produced a better product. The problem with cyanide plating was
that it produced hazardous waste that could generate a toxic gas, hydrogen
cyanide, if the waste came into contact with acid. The RCRA rules created a
special category, “reactive waste”, mainly to address cyanide plating wastes.
3
Furthermore, the contingency planning requirements were obviously intended to
address the then-common situation in which cyanide plating wastes would be
mixed with acidic wastes, producing toxic emissions.
19.
The Guardian West facility was specifically designed as a new facility to perform
only non-cyanide plating. This was done for two reasons: to avoid the danger of
evolution of a toxic gas in an acid spill and to avoid the regulatory problems
associated with cyanide plating.
20. There is a second type of reactive waste, sulfide-bearing waste. Although this
type of waste is not normally associated with the plating
industry, it
exhibits
precisely the same problem: if the waste comes into contact with acid, it
produces a toxic gas. The regulations governing cyanide and sulfide reactive
wastes are identical.
21.
Flex-N-Gate appears to have an attitude that, while hydrogen cyanide is “really
bad”, hydrogen sulfide is “not so bad”. On the contrary, the primary toxic
mechanism for the two gasses, suffocation by binding to hemoglobin, is the
same. Ofthe gasses, hydrogen sulfide is slightly more toxic by many measures.
Although hydrogen sulfide is somewhat less dangerous because its foul smell is
a warning of its presence, it is more dangerous because the gas quickly numbs
the sense of smell. Of the two, hydrogen sulfide produces a far greater body
count in industrial accidents.
22.
Guardian West has introduced sulfide into the plating process. This is done in
order to create a high-sulfur layer of nickel within the plated product, as a part of
a controlled corrosion system that prolongs the life of the product. As illustrated
by this incident, the sulfide appears to be causing exactly the same problems as
cyanide plating.
23.
The source of the sulfide in the hydrogen sulfide was the hazardous waste
present on the plating room floor. Upon contact with acid, the sulfide in that
waste was converted to hydrogen sulfide, which was released to the
atmosphere. A portion
of the hazardous waste, the sulfide contained within it,
was released to the atmosphere.
24.
The evolution of hydrogen sulfide from the waste on the plating room floor was
clearly an event that was not contemplated when the contingency plan was
drafted. It also changed the response necessary in an emergency, since it
demonstrated that emergency equipment and training
in hydrogen sulfide was
now needed at the facility.
25. In the event there is a future, fatal
hydrogen sulfide release at the facility, the
4
management will certainly be indicted for reckless homicide under the Illinois
Criminal Code, unless they have taken the steps required to prevent a
recurrence ofthis accident, and to provide proper training and safety equipment.
26. Respondent made a process change shortly before
the hydrogen sulfide release,
with the introdUction of HSA (“High Sulfur Additive”) 90 to the
process.
1\stOyZ~:c.s,&~~
Morton F. Dorothy, Complainant
The undersigned, a notary public in and for the
aforesaid County and State,
certifies that the above person appeared before me and signed the foregoing document
on the ,~‘-i~’dayof June, 2005.
m
__
Notary
Public
I
BRADLEY
M. ‘ICRAU.
_~ssionExpiTa$W26IO~
Notaty Public, St~t~.1 ftI~a~i
Morton F. Dorothy
104W. University, SW Suite
Urbana IL 61801
217/384-1010
5
