BEFORE THE ILLiNOIS POLLUTION ~

MORTON F. DOROTHY,

)

JUL 182005

STATE OF ILLINOIS

Complainant,

)

Pollution Control Board

)

v.

)

PCBNo.05-49

)

FLEX-N-GATE CORPORATION,

)

an Illinois corporation,

)

)

Respondent.

)

NOTICE OF FILING

TO:

Ms. Dorothy M. Gunn

Carol Webb, Esq.

Clerk ofthe 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 FIRST CLASS

MAIL)

(VIA ELECTRONIC MAIL)

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

the Illinois Pollution Control Board an original and nine copies each ofthe following

documents:

1.

Flex-N-Gate Corporation’s MOTION TO

STRIKE AFFIDAVITS

FILED

AND

UNSUPPORTED STATEMENTS MADE IN SUPPORT

OF COMPLAINANT’S SUMMARY JUDGMENT FILINGS

AND

2.

REPLY IN SUPPORT OF MOTIONS FOR SUMMARY

JUDGMENT; and,

THIS FILING SUBMITTED ON RECYCLED PAPER

---

3.

Flex-N-Gate Corporation’s RESPONSE TO COMPLAINANT’S

MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO

COUNT I,

copies ofwhich are herewith served upon you.

Respectfully submitted,

FLEX-N-GATE CORPORATION,

Respondent,

Dated: July 8, 2005

By:Js/

Thomas.-G. S fl~

~-

Th

0

__

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

MOTIONTO STRIKE AFFIDAVITS FILED AND UNSUPPORTED STATEMENTS

MADE IN SUPPORT OF COMPLAINANT’S SUMMARY JUDGMENT FILINGS

AND MOTION FOR ADMONISHMENT OF COMPLAINANT; MOTION FOR

LEAVE TO FILE REPLY IN SUPPORT OF MOTIONS FOR SUMMARY

JUDGMENT; and RESPONSE TO COMPLAINANT’S MOTION FOR PARTIAL

SUMMARY JUDGMENT AS

TO

COUNT I, upon:

Carol Webb, Esq.

HearingOfficer

Illinois Pollution Control Board

1021 North Grand Avenue East

Post Office Box 19274

Springfield, Illinois 62794-9274

via electronic mail

on July 8, 2005;

and upon:

Ms. DorothyM. Gunn

Clerk ofthe Board

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

Mr. Morton F. Dorothy

104 West University, SW Suite

Urbana, Illinois 61801

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

prepaid, on July 8, 2005

GWST:OO3IFil/NOF’ and COS -Motion to Strike

---

RECEIVED

CLERKS OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

JUL 18 2005

MORTON F.

DOROTHY,

STATE OF ILLINOIS

Pollution Control Board

Complainant,

)

)

v.

)

PCB05-49

)

FLEX-N-GATE CORPORATION,

)

an Illinois corporation,

)

)

Respondent.

)

MOTION TO STRIKE AFFIDAVITS FILED AND

UNSUPPORTED STATEMENTS MADE IN SUPPORT OF

COMPLAINANT’S SUMMARY JUDGMENT FILINGS AND

MOTION FOR ADMONISHMENT OF COMPLAINANT

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

by and through its attorneys, HODGE DWYER ZEMAN, and for its Motion to Strike

Affidavits Filed and Unsupported Statements Made in Support ofComplainant’s

Summary Judgment Filings and Motion for Admonishment ofComplainant (“Motion to

Strike and Admonish”), states as follows:

I.

MOTION’TO STRIKE AFFIDAVITS FILED IN SUPPORT OF

COMPLAINANT’S SUMMARY JUDGMENT FILINGS

A.

Bpck~round

1.

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

to

All

Counts ofComplainant’s Complaint and its Motion for Partial Summary Judgment

as to Counts II through VI ofComplainant’s Complaint (collectively “Motions for

Summary Judgment”).

2.

On June 20,

2005,

Complainant mailed his Motion for Partial Summary

Judgment as to Count I (“Complainant’s Motion for Partial Summary Judgment?’) to

counsel for Flex-N-Gate. S~Complainant’s Certificate ofService, datedJune 20,2005.

---

3.

Complainant attempts to support his Motion for Partial Summary

Judgment with an “Affidavit” dated June 20, 2005.

$~

Complainant’s Motion for Partial

Summary Judgment at 2-3.

4.

On June 24, 2005, Complainant filed his Responses to Flex-N-Gate’s

Motions for Summary Judgment.

5.

Complainant also attempts to support those Responses with an “Affidavit”

dated June 24, 2005.

S~c

Affidavit in Support of Responses to Motions for Summary

Judgment.

6.

As set forth below, these “Affidavits” are deficient, and the Illinois

Pollution Control Board (“Board”) should strike them.

B.

Legal Standard for Affidavits Filed with Board in Support of or

Opposition to a Summary Judtunent Motion.

7.

Illinois Supreme Court Rule 19 1(a) provides in relevant part that:

Affidavits in support of and in opposition to a motion for summary

judgment under section 2-1005 ofthe Code ofCivil Procedure 735 ILCS

5/2-1005,

. . .

shall be made on the personal knowledge ofthe affiants;

shall set forth with particularity the facts upon which the claim,

counterclaim, or defense is based; shall have attached thereto sworn or

certified copies ofall papers upon which the affiant relies; shall not consist

of conclusions but offacts admissible in evidence; and shall affirmatively

show that the affiant, if sworn as a witness, can testilS’ competently

thereto.

Ill. S. Ct. R. 191(a). (Emphasis added.)

8.

The Board considers affidavits filed with it in support ofor in opposition

to motions for summary judgment “only to the extent that the affidavits meet t~ç

requirements of Illinois Supreme Court Rule 191(a).” Johnson v. ADM-Demeter,

Hoopeston Div., PCB No. 98-31, 1999 Ill. ENV LEXIS 6, at *2 (IlLPol.Control.Bd.

2

---

Jan. 7, 1999). (Emphasis added.) See id. at *11, n.3 (“The Board will disregard these

statements in an affidavit, however, because they do not meet the requirements of

Illinois Supreme Court Rule 19 1(a). Specifically, these statements are conclusory and

ADM

has not provided a factual basis for these statements.”) Accord, ~cQpkLP’anelo

Enterprises, Inc., PCB No. 97-66, 1998 Ill. ENV LEXIS 574, at *28 (I11.Pol.Control.Bd.

Nov. 19, 1998) (refbsing to consider an affidavit filed in support ofa motion for

summary judgment that did not comply with Rule 191(a)).

9.

Further, the Board has held that “under Illinois Supreme Court Rule

191(a), opinions and conclusions may not be included in an affidavit submitted in support

ofa motion for summary judgment” filed with the Board. Trepanier, et a!. v. Speedway

Wrecking Co.. et al., PCB No.

97-50,

1998 III. ENV LEXIS 529, at **l6.47

(I1l.Pol.Control.Bd. Oct. 15, 1998).

10.

Thus, in Trepanier, the Board struck portions of an affidavit filed in

response to a motion for summary judgment because the affidavit contained “opinions

and conclusions” and because the affiant had “not been shown to be qualified to offer a

medical opinion,” and also struck a portion ofanother affidavit filed in support ofthat

response because it “does not ‘set forth with particularity the facts upon which claim.

is based.” Id.

11.

Likewise, the Board has stricken portions ofan affidavit filed in support of

a motion for summary judgment which were “not information which was within the

affiant’s personal knowledge,” other portions of the affidavit that were “based on

hearsay,” and other portions ofthe affidavit which the Board found to be “self-serving

3

---

and conclusory.” Heiser v. Office ofthe State Fire Marshal, PCB 94-377, 1995 Ill. ENV

LEXIS 895, at **59 (Ill.Pol.Control.Bd. Sept. 21, 1995). See also 2222 Elston LLC v.

Purex Indus., Inc.. et a!., 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”); EPA v.

Rhodes, PCB No. 71-53, 1972 Ill. ENV LEXIS 169, at

*1 (Ill.Po!.Control.Bd. Jan. 24,

1972) (holding that the Board “can not grant relief.

. .

on the basis of a mere

conclusion” in an affidavit.”)

C.

Complainant’s “Affidavit” Filed in Support of Complainant’s Motion

for Partial Summary Judgment does not Meet the Requirements of

Supreme Court Rule 191(a).

12.

Complainant’s “affidavit” filed in support ofhis Motion for Partial

Summary Judgment states as follows:

Complainant Morton F. Dorothy makes the following affidavit in support

ofhis motion for partial summary judgment as to Count I:

1.

Respondent, Flex-N-Gate Corporation, is conducting

hazardous waste treatment and storage operations at the

Guardian West facility.

2.

Respondent has admitted, pursuant to complainant’s

Request to Admit, that it is treating hazardous waste on-site

and that it does not have a RCRA permit or interim status.

3.

There is no genuine issue ofmaterial fact as to Count I.

Complainant’s Motion for Partial Summary Judgment at 2-3.

13.

Paragraph one ofthis “affidavit” does not comply with Illinois Supreme

Court Rule 19 1(a).

14.

First, whether or not Flex-N-Gate “is conducting hazardous waste

treatment and storage operations” at the facility is not a fact, it is a legal conclusion,

4

---

which is inappropriate for an affidavit.

~ Majca v. Beekil et al., 701 N.E.2d 1084,

1091-1092 (Ill. 1998) (upholding the striking ofan affidavit “because the affidavit

contained legal conclusions unsupported by facts.”)

15.

Second, even if this were an issue of fact, paragraph one ofthe “affidavit”

is conclusory. That is, paragraph one concludes, without reference to any evidence, that

Flex-N-Gate “is conducting hazardous waste treatment and storage operations” at the

facility. Based on this conclusion, Complainant moves the Board to “fmd that respondent

Flex-N-Gate Corporation is operating a hazardous waste treatment and storage facility

without a RCRA permit or interim status.” Complainant’s Motion for Partial Summary

Judgment at 2.

16.

However, this paragraph does not “set forth with particularity the facts

upon which the claim.

. .

is based,” as Rule 191(a) requires. Thus, this paragraph

violates the requirement of Rule 19 1(a) that an affidavit “shall not consist of conclusions

but of facts admissible in evidence.” Supreme Court Rule 191(a).

17.

Regarding Complainant’s conclusion that Flex-N-Gate “is conducting

hazardous waste treatment

. . .

operations,” Complainant does state in paragraph two of

this “affidavit” that Flex-N-Gate “has admitted, pursuant to complainant’s Request to

Admit, that it is treating hazardous waste on-site and that it does not have a RCRA permit

or interim status.” Technically, this paragraph ofthe “affidavit” also does not comply

with Supreme Court Rule 191(a) because it does not “have attached thereto sworn or

certified copies of all papers upon which the affiant relies,” that is, Flex-N-Gate’s

response to “complainant’s Request to Admit.” Ill. S. Ct. R. 19 1(a). Regardless, Flex-N-

5

---

Gate does not deny making the admission stated in paragraph three ofComplainant’s

Motion for Partial Summary Judgment. However, Flex-N-Gate notes that this admission

is irrelevant. Just because a generator ofhazardous waste treats that hazardous waste

does not mean that the generator becomes a “treatment storage or disposal facility” that is

requiredto have a RCRA permit. RCRA allows generators ofhazardous waste to treat

that hazardous waste without obtaining a RCRA permit. For example, 35 Ill. Admin.

Code

§

703.123 provides in relevant part that:

The following persons are among those that are not required to obtain a

RCRA permit:

***

c)

Persons that own or operate facilities solely for the

treatment, storage, or disposal ofhazardous waste excluded

from regulations under this Part by 35 III. Adm. Code

721.104 or 721.105 (small generator exemption);

d)

An owner or operatorof a totally enclosed treatment

facility, as defmed in 35 IlL Adm. Code 720.110;

e)

An owner or operator ofan elementary neutralization unit

or wastewater treatment unit, as defmed in 35 Ill. Adm.

Code 720.110.

35 III. Admin. Code

§

703.123. (Emphasis added.)

This includes generators accumulating waste pursuant to 35 Ill. Admin. Code

§

722.134(a) prior to shipping the waste off-site for treatment, storage, or disposal. $cc,

c~gL,PERMITTING OF TREATMENT ACTIVITIES IN A GENERATOR’S

ACCUMULATION TANKS OR CONTAINERS, USEPA Faxback 12694, PPC

9453.1986(04), July 25, 1986, attached hereto as Exhibit A (“Nothing in Section 262.34

6

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i.e., 722.134 precludes a generator from treating waste when it is in an accumulation

tank or container covered by that provision.”)

18.

Thus, the fact that a generator ofhazardous waste

“treats” that hazardous

waste does not mean that the generator is ruiming a “treatment.

. .

operation” as

Complainant alleges in paragraph two of his Motion for Partial Summary Judgment.

Likewise, it does not mean that the generator’s facility is a “treatment facility,” as

Complainant prays the Board to find at page two ofhis Motion for Partial Summary

Judgment. Thus, the admission that Complainant references in paragraph two ofhis

affidavit in support ofhis Motion for Partial Summary Judgment does not provide the

“facts admissible in evidence” that would be necessary to establish the conclusion that

Complainant reaches.

19.

Regarding Complainant’s conclusion that Flex-N-Gate “is conducting

hazardous waste.

. .

storage operations,” Complainant does not even attempt to provide

any facts to establish such conclusion.

20.

Third, the “affidavit” does not indicate that paragraphone thereofis

“made on the personal knowledge of the affiant,” and does not “affirmatively show that

the affiant, if sworn as a witness, can testif~’competently thereto.” Mr. Dorothy

previously has stated that he worked at the facility at issue, but Flex-N-Gate submits that

this fact is not sufficient to establish that Mr. Dorothy has personal knowledge and can

testify to facts sufficient to establish the conclusions he makes, especially in light ofthe

fact that Complainant has not even set forth such facts.

7

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21.

Paragraph three ofthis “affidavit” also does not comply with Supreme

Court Rule 19 1(a), because it does not state a fact, it states a legal conclusion, that is, the

conclusion that “there is no genuine issue of material fact as to Count I.”

22.

For the reasons stated above, the Board should strike paragraphs one and

three ofComplainant’s “affidavit” filed in support ofhis Motion for Partial Summary

Judgment.

D.

Complainant’s “Affidavit” Filed in Support of Complainant’s Motion

for Partial Summary Judvnent does not Meet the Requirements of

Supreme Court Rule 191(a).

23.

Likewise, Complainant’s “Affidavit” filed in support ofComplainant’s

Responses to Flex-N-Gate’s Motions for Summary Judgment does not comply with Rule

19 1(a).

24.

The specific deficiencies in this “Affidavit” are set forth below. As for the

assertions in the Affidavit that are not addressed, Flex-N-Gate does not by this Motion

intend to indicate that it agrees with such assertions, but simply does not feel that it is

necessary to move to strike such assertions.

a.

The

first sentence of paragraph one of that affidavit references “all

information available to the complainant,” but does not state “with

particularity” what that information is, does not indicate or

establish that Complainant has “personal knowledge” ofthat

information or whether it is hearsay, and does not “affirmatively

show that Complainant, if sworn as a witness, can testi&

competently thereto.”

b.

The second sentence ofparagraph one ofthat affidavit, alleging a

“continuing, intentional violation of Board rules” constitutes

“conclusions” not ‘~thctsadmissible in evidence.”

c.

The first sentence of paragraph two of that affidavit, which

characterizes Complainant’s Complaint, how the alleged violations

8

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“could be easily fixed,” and the alleged effects of such “fix,” is

conclusory and self-serving.

d.

The second sentence of paragraphtwo does not set forth “with

particularity” the alleged facts referenced (e.g., the identity ofthe

alleged “safety equipment”), and ifirther does not establish that

Complainant has “personal knowledge” of the assertions made or

that Complainant “can testi& competently thereto.”

e.

The second sentence ofparagraph three ofthat affidavit regarding

“needed equipment” and “the cost ofcompliance” is conclusory,

failing to set forth “with particularity” the facts upon which

Complainant relies to reach these conclusions, and further does not

establish that Complainant has “personal knowledge” ofthe

assertions made or that Complainant “can testify competently

thereto.”

f.

The third sentence of paragraph three regarding the alleged reason

that Flex-N-Gate filed its Motions for Sunnary Judgment is

conclusory and self-serving, improperly characterizes FJex-N-

Gate’s Motions for Summary Judgment as “hooligan motions” (~ç

Motion for Admonishment ofComplainant set out below), and

improperly asserts that “respondent is seeking to delay this action”

without establishing that Complainant has “personal knowledge”

ofthe reason why Flex-N-Gate filed its Motions for

Summary

Judgment orthat Complainant “can testi& competently” regarding

those reasons.

g.

Paragraph four of that affidavit is conclusory, failing to set forth

“with particularity the facts” that allegedly support Complainant’s

assertion that “the contingency plan was deficient ab initio, in

ways completely independent ofthe incident alleged in the

complaint.” This is made particularly clear by the fact that

Complainant does not even identify the alleged “ways completely

independent ofthe incident alleged in the complaint” that the

contingency plan allegedly “was deficient.”

h.

The allegation ofthe third sentence ofparagraph five ofthat

affidavit that “the sludge and contaminated debris.

. .

cannot be..

pumped to the wastewater treatment unit” is conclusory, failing to

set forth the facts on which Complainant relies to make such

assertion.

9

---

The

statement in the fourth sentence ofparagraph five of that

affidavit that “the sludge and contaminated debris is hazardous

waste” states a legal conclusion, not a “fact admissible in

evidence.”

j.

The statement in paragraph eight ofthat affidavit that “sulfide.

was the source ofthe release” is conclusory, failing to identif~’any

particular facts upon which Complainant relies to conclude that

“sulfide.

. .

was the source ofthe release” (such as sampling

results), and further fails to establish that Complainant can “testify

competently” to this conclusion.

The further statement in paragraph eight ofthat affidavit that

something “may have” happened:

(i)

constitutes an “opinion and conclusion” which the Board

has held “may not be included in an affidavit submitted in

support ofa motion for summary judgment” filed with the

Board (Trepanier, PCB No. 97-50, 1998 Ill. ENY LEXIS

529,

at **l6_l7); and,

(ii)

further fails to establish that Complainant has “personal

knowledge” or can “testi& competently” that this “may

have” happened.

The

first sentence of paragraph nine of that affidavit is conclusory

and does not establish that Complainant has any “personal

knowledge” or “can testif~’competently” to the reason why

“Respondent presents an account ofthe acid spill.”

m.

The statement in the second sentence of paragraph nine ofthat

affidavit that “this account is not consistent with what

complainant observed as a witness to the immediate aftermath of

the spill” is conclusory, failing to “set forth with particularity the

facts” on which Complainant relies, that is, what facts allegedly

make the “account” inconsistent with Complainant’s observations.

n.

The statement in the second sentence ofparagraph nine ofthat

affidavit that “this account.

. .

is not consistent with the

evidence produced in discovery” constitutes an “opinion and

conclusion,” does not “set forth with particularity the facts” on

which Complainant relies (that is, the particular discovery

responses Complainant references), and does not “have attached.

sworn or certified copies of all papers upon which the affiant

10

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relies” (that is, the particular discovery responses Complainant

references).

o.

Paragraph ten ofthat affidavit is deficient in that it references a

“technical argument” produced “in the course ofdiscovery” but

does not “have attached.

.

sworn or certified copies ofall papers

upon which the affiant relies,” that is, the discovery response at

issue.

p.

The statement in the first sentence ofparagraph eleven ofthat

affidavit is conclusory in that it does not identify on the particular

facts, such as sampling results, on which Complainant relies to

support his allegation that he “directly observed the production of

hydrogen sulfide gas.” In other cases, the Board has held that

observation alone is insufficient to establish that a material

constitutes a particular substance. ~ People v. Community

Landfill Co.. Inc., PCB No. 97-193, 2002 Ill. EN”! LEXIS 583, at

*32 (Ill.Pol.Control.Bd. Oct. 3, 2002) (“A review ofthe deposition

testimony and affidavits of Ms. Kovasznay establishes that she

based her conclusions on merely observing materials she thought

might contain asbestos. No testing was done on the materials and

the materials were not marked as asbestos. The Board fmds that

this is not sufficient to support a finding ofviolation on this

count.”)

q.

The second sentence ofparagraph eleven is deficient in that it

references “accounts” of “other witnesses” that “have been

produced in discovery,” but:

(i)

it does not even identifS’ who these “witnesses” are; and,

(ii)

it does not “have attached.

..

sworn or certified copies of

all papers upon which the affiant relies,” that is, these other

“accounts.

. .

produced in discovery.”

r.

The second sentence ofparagraph eleven further is conclusory and

constitutes an impermissible “opinion” in an affidavit, in that it

characterizes these undisclosed, un-attributed “accounts” as

“consistent with hydrogen sulfide production.”

s.

The third sentence ofparagraph eleven is deficient in that:

11

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(i)

it references hearsay (statements allegedly made by

“~someofthese witnesses.

. .

to complainant”) and seeks

to support Complainant’s conclusions by this hearsay;

(ii)

it does not even identify who these “witnesses” are; and,

(iii)

it offers a “opinion and conclusion” regarding these

unidentified witnesses’ alleged agreement “with

complainant’s assessment at the time.”

t.

The first sentence of paragraphtwelve of that affidavit is deficient

in that it alleges that “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,” but does

not “have attached.

. .

sworn

or certified copies of all papers upon

which the affiant relies,” that is, any discovery requests from

Complainant to Flex-N-Gate seeking such information or Flex-N-

Gate’s responses to such discovery requests “refusing” to provide

such information. See further discussion of this issue in Flex-N-

Gate’s Motion for Admonishment. below.

u.

The second sentence ofparagraph twelve is deficient in that it

alleges that Flex-N-Gate employee Denny Corbett “has made

numerous false statements in connection with this incident,” but:

(i)

this constitutes a mere “opinion and conclusion” of

Complainant that is improper in an affidavit;

(ii)

Complainant does not identify the particular “facts

admissible in evidence” upon which Complainant relies to

reach this conclusion, that is, what Mr. Corbett allegedly

said, when he said it, and what facts occurred that his

statements allegedly misrepresent;

(iii)

Complainant does not “attach

. . .

sworn or certified

copies of all papers upon which he relies,” that is, the

documents in which Mr. Corbett allegedly made “false

statements” (~ç~Complainant’s Motion to Compel

Production ofDocuments, ¶9, alleging that Mr. Corbett

made these false statements in written communications

with the Occupational Health and Safety Administration

(“OSHA”)); and,

12

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(iv)

Complainant concludes, and asks the Board to conclude,

that Mr. Corbett’s “testimony would therefore not be

believable,” again, without providing any factual basis on

which to make such an assessment, and at the summary

judgment stage, where questions ofcredibility are not at

issue. Ayh Holdings. Inc. v. Avreco, Inc., et al., 826

N.E.2d 1111, at 1124(1st Dist. 2005). (“The trial court

cannot make credibility determinations or weigh the

evidence at the summary judgment stage.”) (Citations

omitted.)

See further discussion of this issue in Flex-N-Gate’s Motion for

Admonishment, below.

v.

Paragraphs 13, 14, 15, 16, and 17 ofthat affidavit are deficient in

that they state “opinions and conclusions,” not “facts admissible

in evidence.”

w.

The first sentence ofparagraph 18 ofthat affidavit is deficient in

that it does not indicate or establish that Complainant has “personal

knowledge” ofthe matter alleged (that is, that “alt the time RCRA

rules were adopted,

most plating such as that done at Guardian

West was done in cyanide solution”), and does not “affirmatively

show that Complainant, if sworn as a witness, can testify

competently thereto.”

x.

The second and third sentences ofparagraph 18 are deficient in

that they constitute “opinions and conclusions,” and do not state or

establish that Complainant has “personal knowledge” regarding

“cyanide plating” and do not “affirmatively show that

Complainant, if sworn as a witness, can testify competently

thereto.”

y.

The fourth sentence ofparagraph 18 is deficient in that it does not

state or establish that Complainant has any “personal knowledge”

as to why the United States Environmental Protection Agency

(“USEPA”) “created..

.

the category ‘special waste” or that

Complainant “if sworn as a witness, can testify competently” as to

why USEPA “created

. ..

that category.”

z.

Likewise, the last sentence ofparagraph 18 is deficient in that it

does not state or establish that Complainant has any “personal

knowledge” as to what USEPA “intended” the “contingency

planning requirements..

.

to address,” or that Complainant “if

13

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sworn as a witness, can testify competently” as to what USEPA

“intended” those “requirements.

. .

to address.”

aa.

Paragraph 19 ofthe affidavit is deficient in that it does not state or

establish that Complainant has “personal knowledge” as to how

“the Guardian West facility was

. . .

designed,” or the “reasons”

that any particular design was chosen for the facility, nor does

paragraph 19 “affirmatively show that Complainant, if sworn as a

witness, can testify competently” regarding how the facility was

designed orwhy any certain design was chosen.

bb.

The first and last sentences ofparagraph 20 of the affidavit are

deficient in that they state legal conclusions, not “facts admissible

in evidence.”

cc.

The second sentence ofparagraph 20 ofthe affidavit is deficient in

that it does not state or otherwise establish that Complainant has

“personal knowledge” of; or “if sworn as a witness, can testify

competently” regarding, “sulfide-bearing waste.”

dd.

The first sentence ofparagraph 21 ofthe affidavit is deficient in

that:

(i)

it constitutes an “opinion and conclusion” regarding Flex-

N-Gate’s alleged “attitude” regarding “hydrogen cyanide”

and “hydrogen sulfide”; and,

(ii)

it does not state or establish that Complainant has “personal

knowledge” of,

or “if

sworn as a witness, can testify

competently” regarding, Flex-N-Gate’s alleged

“attitudes” regarding this or any other issue.

ee.

The remainder of paragraph 21 of the affidavit is deficient as it

does not indicate or establish that Complainant has “personal

knowledge” as to the medical opinions stated, nor does it

“affirmatively show that Complainant, if sworn as a witness, can

testify competently” regarding these medical opinions.

if.

The first and second sentences of paragraph 22 of the affidavit are

deficient in that they do not indicate or establish that Complainant

has “personalknowledge” or could “testify competently” that

“Guardian West has introduced sulfide into the plating process”

(first sentence ofparagraph 22) or, even if this had occurred, why

it “is done” (second sentence ofparagraph 22).

14

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gg.

The third sentence ofparagraph 22 of the affidavit is deficient in

that it constitutes an “opinion and conclusion” about what, to

Complainant, “appears” to be happening, and it does not indicate

or establish that Complainant has “personal knowledge” ofthe

issues stated or is qualified to “testify competently thereto.”

ft.

Paragraph 23 ofthe affidavit is deficient in that:

(i)

it is made up only of Complainant’s “opinions and

conclusions” regarding what happened at the facility, not

“facts admissible in evidence” that establish what happened

(as noted above, the Board has held that observation is

insufficient to establish that a material constitutes a

particular substance

--

~

Community Landfill Co., Inc.,

2002 Ill. ENV LEXIS 583, at *32); and,

(ii)

it does not state or establish that Complainant is qualified to

“testify competently” to the statements ofchemistry

included therein; and,

(iii)

the characterization in the third sentence ofparagraph 23 of

material as “hazardous waste” states a legal conclusion, not

a “fact admissible in evidence.”

ii.

The first sentence of paragraph 24 of the Affidavit is deficient in

that:

(i)

it assumes “the evolution of hydrogen sulfide from the

waste on the plating room floor,” which, as discussed

above, constitutes a mere “opinion and conclusion” (see

discussion ofparagraph 23 above); and,

(ii)

it does not state or establish that Complainant has “personal

knowledge” regarding the drafting of the facility’s

contingency plan or what was or was not “contemplated

when then contingency plan was drafted,” or that

Complainant could “testify competently thereto.”

jj.

The second sentence ofparagraph 24 ofthe Affidavit is deficient

in that it constitutes an “opinion and conclusion” regarding what

Complainant characterizes as a “change” in “the response

necessary in an emergency,” not a “fact admissible in evidence.”

15

---

kk.

Paragraph 25 is deficient in that:

(i)

it constitutes only Complainant’s “opinions and

conclusions” regarding what might happen in the future;

and,

(ii)

it does not state or establish that Complainant has any

“personal knowledge” or the background to “testify

competently” regarding the alleged possibility ofan

“indictment” of Guardian West personnel.

See also the further discussion of this issue in Guardian West’s Motion for

Admonishment below.

25.

For these reasons, the Board should strike the portions of Complainant’s

“Affidavit” in support of Complainant’s Responses to Flex-N-Gate’s Motions for

Summary Judgment identified above.

III.

IN COMPLAINANT’S SUMMARY JUDGMENT FILINGS

26.

“Facts asserted in motions filed with the Board that are not ofrecord in

the proceeding must be supported by oath, affidavit, or certification in accordancewith

Section 1-109 of the Code of Civil Procedure.” 35 Ill. Admin. Code § 101.504.

27.

As just discussed, the Board should strike numerous portions of

Complainants’ “affidavits” filed in support of its Responses to Flex-N-Gate’s Motions for

Summary Judgment.

28.

Once the Board strikes those portions of Complainants’ “affidavits,” the

portions of Complainants’ Responses that rely on those stricken portions ofthe

“affidavits” will not “be supported” as required by Section 101.504.

29.

In his Responses, Complainant does not cite to his “affidavits” or

otherwise identify exactly which portions ofhis Responses he intends to support by his

16

---

“affidavits.” However, it appears that the portions ofComplainants’ Responses which he

intends to support by the portions ofthe affidavits that, as discussed above, should be

stricken, are:

a.

Complainants’ Response to Motion for Summary Judgment:

Paragraphs 2, 3, 4, 8 (first sentence), 9.a (except last sentence), 9.b,

9.c, 9.d, 10 (first two sentences), 11 (first sentence), 12, 13, 20.a,

20.b, 20.b.i, 20.b.ii (first sentence), and 20.c (last sentence);

b.

Complainant’s Response to Motion for Partial Summary Judgment

as to Counts II

—

VI:

Paragraphs 2 (first two sentences),

5

(first two sentences), 6, 7, 12,

12.a, 12.b, 12.b.i, 12.b.ii (first sentence), 12.c (last sentence) 22,

23, 24, 25, 26, 29, 34.a (first sentence), and 35 (first sentence).

30.

Because Complainant cites no other support forthese portions ofhis

Responses other than the portions of Complainant’s affidavits which the Board must

strike, the Board also must strike these portions of Complainant’s Responses.

31.

In addition, Complainant makes numerous other assertions of fact in his

Responses to Flex-N-Gate’s Motions for Summary Judgment which are not “supported”

by reference to his “affidavits” or otherwise, as Section 10 1.504 requires.

32.

Specifically, in his Response to Motion for Summary Judgment,

Complainant states the following opinions, assertions of fact, or conclusions of fact or

law without citing any support for such statements:

a.

paragraph 1

—

entire paragraph;

b.

paragraph 6

—

second and third sentences;

c.

paragraph 10— last sentence;

d.

paragraph 11

—

last sentence;

17

---

e.

paragraph 15

—

first sentence;

f.

paragraph 1 8.b.i

—

“respondent has now admitted, that respondent

is conducting hazardous waste treatment and storage operations

without a RCRA permit”;

g.

paragraph 20.b.ii

—

conclusions regarding what “Flex-N-Gate

consciously decided,” what Flex-N-Gate “would have included in

the contingencyplan” and what “employee training” Flex-N-Gate

would have “provided,” implications as to what is and is not in the

Facility’s contingency plan and training without citation to the

contingency plan or evidence ofthe training, conclusions as to

what “motion” Flex-N-Gate’s counsel “would have filed” and what

Flex-N-Gate’s counsel “has decided,” and conclusion regarding

“delay” of“this case”;

h.

paragraph 20.c, second sentence

—

conclusions regarding what

“an outsider” would be able to “know”;

i.

paragraph 21

—

“respondent has admitted that it is conducting

hazardous waste treatment and storage operations without a RCRA

permit”;

j.

paragraph 24 and 24.a

—

implications as to what “complainant

would dispute” and “would also question” without citation to any

facts in support of these potential positions;

k.

paragraph 27.a

—

entire paragraph;

1.

paragraph 31 .c

—

entire paragraph.

33.

And, in his Response to Motion for Partial Summary Judgment as to

Counts II

—

VI, Complainant states the following opinions, assertions of fact, or

conclusions of fact or law without citing any support for such statements:

a.

paragraph 2

—

last sentence;

b.

paragraph 17— “respondent has admitted, but not alleged, that this

facility is conducting hazardous waste treatment and storage

operations without a RCRA permit”;

c.

paragraph 18.a

—

entire paragraph;

18

---

d.

paragraph 26.a

—

entire paragraph;

e.

paragraph 26.b

—

entire paragraph;

f.

paragraph 28.b

—

entire paragraph;

g.

paragraph 29.a

—

second sentence;

h.

paragraph 30

—

second sentence;

i.

paragraph 3 l.a

—

entire paragraph;

j.

paragraph 31.b

—

discussion of what training Flex-N-Gate does or

does not provide to its employees;

k.

paragraph 33

—

entire paragraph;

I.

paragraph 34

—

all but first sentence.

34.

Again, Section 10 1.504 of the Board’s rules requires that facts asserted in

motions filed with the Board must be supported by admissible evidence. Complainant

does not even attempt to support these assertions of fact. Accordingly, in addition to

striking portions of Complainant’s “affidavits” and the portions ofComplainant’s

Responses to Flex-N-Gate’s Motions for Summary Judgment which rely on those

stricken portions ofthe “affidavits,” as discussed above, the Board also must strike these

portions of Complainant’s Responses to Flex-N-Gate’s Motions for Summary Judgment.

IV.

MOTION TO ADMONISH COMPLAINANT

35.

In addition to striking Complainant’s affidavits and unsupported

statements offact, for the reasons set forth below, Flex-N-Gate moves the Board to

admonish Complainant to comply with the Board’s procedural rules and maintain

decorum in this action.

19

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A.

Introduction

36.

The Board’s procedural rules “govern how persons initiate and participate

in all proceedings before the Board under the Environmental Protection Act and other

statutes directing Board action.” In the Matter of: Revisionof the Board’s Procedural

Rules: 35 Ill. Adm. Code 101-130, PCB No. R00-20, 2000 Ill. ENV LEXIS 791, at *1

(Il1.Pol.Control.Bd. Dec. 21, 2000).

37.

Specifically, adjudicatory matters before the Board such as this case are

governed by the Board’s procedural rules set forth at 35 Ill. Admin. Code Part 101 and

Part 103. See 35 Ill. Admin. Code § 103.100.

38.

Compliance with the Board’s procedural rules is not optional, and failure

to comply can subject a party to sanctions under 35 111. Admin. Code § 101.800.

39.

Further, as before a court, a party appearing before the Board must

maintain proper decorum and respect forthe Board and its proceedings. ~

al, v. South Fork Gun Club, PCB No. 00-177, 2002 III. ENV LEXIS 692, at

**5~6

(Ill.Pol.Control.Bd. Dec. 19, 2002) (holding that the Complainant’s actions were

“sanctionable” where, in part, the Complainant “behaved disrespectfully and

inappropriately at the hearing.”); E.G. Vogt Oil Co. v. Illinois EJ~A,PCB No. 00-141,

2002 Ill. ENV LEXIS 53, at *2 (Ill.Pol.Control.Bd. Feb. 7, 2002) (“the Board in no way

intends to countenance the pattern ofdelay and disregard forthe Board and its processes

exemplified in these cases.”)

20

---

B.

Complainant has Repeatedly failed to Comply with the Board’s Rules.

40.

Flex-N-Gate has detailed above Complainant’s failures to comply with the

Board’s rules and the Rules of Civil Procedure in Complainant’s summaryjudgment

filings. As detailed below, these failures are not isolated, but rather, Complainant has

repeatedly failed to comply with the Board’s Rules.

I.

Complainant has Repeatedly Attempted to Base his Filings on

Unsupported Factual Allegations.

41.

It is axiomatic that, like a Court, the Board cannot decide cases based

merely on unsupported allegations, but must base its decisions only on admissible

evidence.

42.

Thus, Section 101.504 ofthe Board’s rules requires that “facts asserted

in motions filed with the Board that are not of record in the proceeding must be

supported by oath, affidavit, orcertification in accordance with Section 1-109 of the

Code of Civil Procedure.” 35 IlL Adm. Code § 101.504. (Emphasis added.)

43.

Despite this requirement, Complainant has repeatedly attempted to base

his filings on factual allegations which had no support. Specifically:

a.

October 13. 2004: In his Motion to Accept for Hearing and for

Expedited Discovery (“Motion to Accept for Hearing”),

Complainant attempted to rely on unsupported allegations offact,

requiring Flex-N-Gate to point out in its Response to this Motion

that these allegations were unsupported. $ç~Flex-N-Gate’s

Response to Complainant’s Motion to Accept for Hearing at ¶~l3-

14.

b.

March 15, 2005: In his Motion to Strike Answer, Complainant

again attempted to rely on numerous unsupported conclusions of

fact, again requiring Flex-N-Gate to devote a portion of its

Response to this Motion to addressing this deficiency. See Flex-

21

---

N-Gate’s Response to Complainant’s Motion to Strike Answer at

6-7. Complainant later withdrew his Motion to Strike.

c.

April 27. 2005: Inhis Motion to Compel Production of

Documents, Complainant again attempted to rely on numerous

unsupported allegations of fact, again requiring Flex-N-Gate to

devote a portion ofits Response to addressing this deficiency. $~ç

Flex-N-Gate’s Response to Complainant’s Motion to Compel

Production of Documents at 2.

d.

April 27, 2005. Likewise, in his Motion to Compel Respondent to

Admit the Truth of Certain Facts, Complainant again attempted to

rely on unsupported allegations of fact, forcing Flex-N-Gate to

again address this issue in its Response. S~Flex-N-Gate’s

Response to Complainant’s Motion to Compel Respondent to

Admit the Truth of Certain Facts at 2.

e.

June 24, 2005: Finally, as discussed above, Complainant in his

summary judgment filings again has attempted to rely on

numerous unsupported allegations of fact, again requiring Flex-N-

gate to addressthis issue through this Motion. $p~discussion

above.

44.

As discussed further below, the Board should admonish Complainant to

comply with Section 101.504 ofthe Board’s rules and cease making unsupported

statements of fact in his filings.

2.

When Complainant has Filed Affidavits. They Have Been

Deficient.

45.

In addition to attempting to support his filings with unsupported

allegations of fact, when Complainant has filed affidavits, they have been conclusory, not

based on personal knowledge, and.otherwise deficient.

46.

In particular:

a.

October 13. 2004: Complainant attempted to rely on an “affidavit”

to support his Motion to Join Agency as Party in Interest and to

Extend Time to Respond to Motion to Dismiss (“Motion to Join

Agency”), but that “affidavit” failed to attach documents to which

22

---

it referred and was conclusory. See Flex-N-Gate’s Response to

Complainant’s Motion to Join Agency at 8-9. These facts required

Flex-N-Gate to have to address these deficiencies in its Response

to this Motion. See id.

b.

October 13. 2004: Complainant attempted to rely on an “affidavit”

to support his Motion to Accept for Hearing, but that “affidavit”

was conclusory, did not demonstrate that Complainant had

personal knowledge ofthe facts alleged, and also did not attach

documents referenced. Scc Flex-N-Gate’s Response to

Complainant’s Motion to Accept for Hearing at 4-9. This caused

Flex-N-Gate to have to spend five pages ofits Response pointing

out these deficiencies. See id.

c.

June 6. 2005: Complainant attempted to rely on an “affidavit” to

support his Motion to Reconsider Hearing Officer Order, but that

“affidavit” was conclusory and did not demonstrate that

Complainant had personal knowledge of or the ability to testi&

regarding the facts alleged. $ç~Flex-N-Gate’s Response to

Complainant’s Motion to Accept for Hearing at 5-8. This caused

Flex-N-Gate to have to address these deficiencies in its Response

to this Motion. See id.

d.

June 20, 2005: As discussed above, Complainant’s “affidavit”

filed in support ofComplainant’s Motion for Partial Summary

Judgment does not comply with Supreme Court Rule 191, but

makes legal conclusions, is otherwise conclusory, fails to attach

documents referenced, and does not establish that Complainant has

“personal knowledge” of, or the ability to “testify competently” to,

the facts alleged.

e.

June 24. 2005: Likewise, as discussed above, Complainant’s

“affidavit” filed in support ofComplainant’s Responses to Flex-N-

Gate’s Motions for Summary Judgment does not comply with

Supreme Court Rule 191 and is deficient for the same reasons.

47.

Flex-N-Gate further notes that the unsupported allegations that

Complainant makes are not trivial. For example, in paragraph one ofhis Affidavit in

Support of Responses to Motions for Summary Judgment, Complainant, without citation

23

---

to fact, concludes that Flex-N-Gate is committing a “continuing, intentional violation of

Board rules protecting the environment and worker safety at a hazardous waste facility.”

In paragraph 12 of that Affidavit, Complainant alleges, without citation to any

fact or documents, that Flex-N-Gate has “refused” to respond to discovery requests.

Flex-N-Gate strenuously disagrees with this assertion. ~ Flex-N-Gate’s Motion for

Leave to File Reply in Support of Motion for Complete Summary Judgment.

And, as discussed farther below, Complainant on at least three occasions has

alleged, without citation to any facts or documents, that Flex-N-Gate and/or its

employees have knowingly lied to the OSHA regarding the “incident” at issue in this

matter.

48.

As discussed below, especially in light ofthe seriousness ofthese

allegations, the Board also should admonish Complainant in the future to file proper

affidavits which (1) state facts rather than legal or factual conclusions, (2) set those facts

out “with particularity,” (3) are made on personal knowledge, (4) demonstrate that the

affiant has the ability to testiQj competently to the matters stated, and (5) attach

admissible copies ofany documents referenced or on which the affiant relies. Further,

this should be the case whether or not an affidavit is filed in support ofa motion that is

explicitly referenced in Supreme Court Rule 19 1(a).

3.

Complainant has Failed to Comply with other Board Rules.

49.

In addition to the above, among other things, Complainant served a total

of more than 120 interrogatories on Flex-N-Gate, without seeking or obtaining leave of

the Hearing Officer as required by 35 Ill. Admin. Code § 101.620(a), forcing Flex-N-

24

---

Gate to have to file a Motion for Protective Order. See Flex-N-Gate’s Motion for

Protective Order.

50.

The Board also should admonish Complainant to comply generally with

the Board’s rules.

C.

Board.

51.

In addition to failing to comply with Board Rules, Complainant has

repeatedly disregarded proper decorum in this action.

52.

Specifically,

a.

October 13, 2004: Complainant alleged in his affidavit filed in

support ofhis Motion to Accept for Hearing, without any factual

support whatsoever, and without providing copies ofthe

documents he allegedly referenced, that Flex-N-Gate “knowingly”

made false statements to OSHA

—

a crime

—

and that Flex-N-Gate

would destroy documents relevant to this case. Complainant’s

Motion to Accept for Hearing at 2-3, ¶~f8-12,14-16. This caused

Flex-N-Gate to have to spend a portion ofits Response to this

Motion addressing the fact that these unsupported allegations were

improper and prejudicial, and asking the Board to strike them.

Response to Complainant’s Motion to Accept for Hearing at 6-8.

b.

April 27. 2005: Despite the fact that Flex-N-Gate pointed out in its

Response to Complainant’s Motion to Accept for Hearing that

these statements were improper, as just discussed, Complainant in

his Motion to Compel Production ofDocuments again alleged, this

time without even citing to a conclusory affidavit, that a Flex-N-

Gate employee “made several false statements, including

statements made in writing to OSHA in its investigation ofthis

incident.” Motion to Compel Production ofDocuments, ¶9. This

forced Flex-N-Gate to again have to address the fact that this

unsupported allegation was conclusory, improper and prejudicial,

and move the hearing officer to disregard it. Response to Motion

to Compel Production ofDocuments at 3-4. Complainant later

filed an Affidavit making this same statement, but that Affidavit

did not attach the documents to which Complainant referred or set

25

---

forth the facts upon which Complainant relied to allege that the

Flex-N-Gate employee had made “false statements.”

c.

June 24, 2005: Despite addressing this issue twice before, as

discussed above, Complainant again in his summary judgment

filings alleges that Flex-N-Gate has lied to OSHA, again without

any citation to any evidence to support this allegation, and without

providing copies ofany documents in which Flex-N-Gate allegedly

lied.

d.

June 24, 2005: Further, in his Response to Motion for Summary

Judgment, Complainant inappropriately accuses Flex-N-Gate of

filing “hooligan motions” and “seeking to delay this action,

recklessly endangering lives.” Complainant’s Response to Motion

for Summary Judgment at ¶4.

e.

June 24, 2005: And, in his Response to Motion for Partial

Summary Judgment as to Counts II

—

VI, Complainant includes an

inflammatory statement that “the management” of Flex-N-Gate

“will certainly be indicted for reckless homicide.” Complainant’s

Response to Motion for Partial Summary Judgment as to Counts II

—

VI, at ¶34.a.

53.

As discussed farther below, the Board should admonish Complainant to

stop making such improper and prejudicial allegations.

D.

Flex-N-Gate’s Attempts to Address Complainant’s Failures to

Comply with Board Rules and Maintain Decorum have been

Unsuccessful.

54.

As is made clear from the above, Complainant has repeatedly committed

the same infractions ofthe Board’s

rules, and has repeatedly disregardedproper decorum

in this action.

55.

As also is made clear from the above, Flex-N-Gate has attempted to

address these actions by Complainant by pointing them out, but Complainant has

continued to take the same actions.

26

---

56.

These repeated actions by Complainant have forced Flex-N-Gate to

needlessly incur costs in addressing these actions in its Responses to Complainants’

Motions and in this Motion, and have forced or will force the Board and the Hearing

Officer to waste time addressing these issues.

E.

The

Board’s Rules and Proper Decorum in this Action.

57.

As is made clear above, Complainant has repeatedly violated the Board’s

rules despite his failure to comply being pointed out by Respondent.

58.

As the Board has stated in the past, the Board cannot “countenance a

pattern of.

. .

disregard for the Board and its processes.” E.G. Vogt Oil Co., 2002 Ill.

ENV

LEXIS 53, at ~2.

59.

The reason for this is clear: if the Board does not enforce its rules, those

rules are meaningless, and the Board has no credibility because litigants before it know

that the Board will ignore their disregard ofthe Board’s procedures.

60.

Further, as discussed in Flex-N-Gate’s Response to Complainant’s Motion

to Accept for Hearing, Illinois Courts have held that it is improper for litigants in Illinois

to make accusations in

their filings such as Complainant has made against Flex-N-Gate,

and that such allegations are “scandalous and impertinent” and should be stricken. Scc

Benitez, et al. v. KFC National Mgmt. Co., 714 N.E.2d 1002, 1037 (2d Dist. 1999)

(finding that “plaintiffs’ allegations in their second amended complaint that employee-

defendants sold tainted food to customers and spied on female customers were

‘scandalous and impertinent” and that it was proper to strike those allegations). Accord,

Biggs v. Cummins, 158 N.E.2d 58,59(111. 1959) (striking the appellant’s brief as

27

---

containing “scandalous and impertinent material,” where the appellant accused a judge of

falsifying a court record, the Attorney General ofwithholding evidence, the Attorney

General’s assistant of“altering the record,” and an assistant Attorney General ofmaking

“false and untrue statements to the court.”)

61.

Complainant’s allegations that Flex-N-Gate knowingly made false

statements to OSHA, and would destroy documents, are conclusory and are not supported

by any facts.

62.

Further, Complainant’s characterization ofFlex-N-Gate’s Motions for

Summary Judgment as “hooligan motions,” of Flex-N-Gate as “seeking to delay this

action, recklessly endangering lives,” and of“the management” ofFlex-N-Gate facing

“indictment for reckless homicide” are improper and inflammatory and have no place in

filings with the Board or any other body.

63.

Complainant clearly makes these allegationsto prejudice Flex-N-Gate

before the Board by trying to convince the Board that Flex-N-Gate is deceitful and a “bad

actor.”

64.

The Board cannot allow such improper and prejudicial statements, which

allege intentional deceit, criminal activity, and other improper actions by Flex-N-Gate,

with no supporting facts whatsoever, to stand.

65.

Flex-N-Gate further notes that Complainant is an attorney, licensed to

practice law in the State of Illinois. Response to Complainant’s Motion to Compel

Response to Interrogatories, Exhibit F, at ¶~6,7.Thus, even though he is representing

himself in this action, the Board should not hesitate to hold Complainant to compliance

28

---

with the Board’s rules and to proper decorum. Further, even if Complainant were not an

attorney, the Board has held that

“pro se

parties must comply with the same rules as an

attorney.” SPILL. et al. v. City ofMadison, et al., PCB No. 96-91, 1996 Ill. ENV LEXIS

250, at *6 (Ill.PoLControl.Bd. March 21, 1996).

66.

As noted above, failure to comply with the Board’s rules can subject a

party before the Board to sanctions under Section 101.800 ofthe Board’s rules, 35111.

Admin. Code § 101.800.

67.

Flex-N-Gate believes that Complainant’s repeated violations of the

Board’s rules and ofproper decorum set forth above rise to the level that sanctions under

Section 101.800 are appropriate.

68.

As detailed above, these violations ofthe Board’s rules and of proper

decorumhave required Flex-N-Gate to incur costs to point out these violations, and have

forced Flex-N-Gate to defend itself against repeated, unsupported allegations of

intentional misconduct.

69.

This has prejudiced Flex-N-Gate.

70.

Further, Complainant’s failure to comply with the Board’s rules has

increased the burden for the Board and the Hearing Officer in ruling on Complainant’s

Motions, or considering Complainant’s Responses to Motions, because the Board and

Hearing Officer are forced to consider whether Complainant’s statements offact are

supported and thus can be relied on, or are unsupported and must be disregarded.

71.

Despite these facts, Flex-N-Gate understands that the Board’s main focus

in any matter is on the facts, and therefore does not seek any sanction against

29

---

Complainant, but asks only that the Board admonish Complainant to comply with the

Board’s rules, and to maintain proper decorum, as more specifically set forth below.

F.

Conclusion

72.

For the reasons stated above, the Board should admonish Complainant to:

a.

comply with 35 III. Admin. Code § 10 1.504, and cease making

unsupported allegations of fact in his filings with the Board;

b.

cease filing affidavits with the Board which:

i.

make legal conclusions;

ii.

make factual conclusions;

iii.

do not affirmatively establish that the affiant has personal

knowledge of the statements made;

iv.

do not affirmatively establish that the affiant, if sworn as a

witness, can testify competently to the statements made;

and/or,

v.

do not reference or rely on documents unless admissible

copies ofthose documents are attached to the affidavit;

c.

comply generally with the Board’s procedural rules;

d.

cease making unsupported allegations ofdeceit and/or criminal

conduct on the part of Flex-N-Gate and/or its employees; and,

e.

maintain proper decorum in this matter.

IV.

CONCLUSION

WHEREFORE, for the reasons stated above, Respondent, FLEX-N-GATE

CORPORATION, respectfully prays that the Illinois Pollution Control Board (1) strike

the “affidavits” filed by Complainant in support of Complainant’s Motion for Partial

Summary Judgment and Complainant’s Responses to Flex-N-Gate’s Motions for

Summary Judgment, (2) strike Complainant’s unsupported statements offact in his

summary judgment filings, (3) admonish Complainant to comply with the Board’s rules,

30

---

and (4) grant FLEX-N-GATE CORPORATION such other relief as the Illinois Pollution

Control Board deems just.

Respectfully submitted,

FLEX-N-GATE CORPORATION

Dated: July 8, 2005

Thomas G. Safley

HODGE DWYER

ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

GwsT:003/Fil/Motion to Strike and Admonish

By

‘S

31

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rage

i 01 i

FAXBACK 12694

PPC 9453.1986(04)

PERMITTING OF TREATMENT ACTIVITIES IN A GENERATOR’S

ACCUMULATION TANKS OR CONTAINERS

July 25, 1986,

Kevin A. Lehner

RMT, Inc.

Suite 124

1406 East Washington Avenue

Madison, Wisconsin 53703

Dear Mr. Lehner:

Thank you for your letter ofApril 4, 1986, requesting

clarification ofthe Agency’s recent statement with respect to

permitting of treatment activities occurring in a generator’s

accumulation tanks or containers.

As noted in your letter, the preamble to the final small

quantity generator regulations promulgated on March 24, 1986,

states that

“...

no permitting would be required if a generator

chooses to treat their hazardous waste in the generator’s

accumulation tanks or containers in conformance with the

requirements of Section 262.34 and J or I of Part 265.” Although

this statement did appear in the small quantity generator

regulations, it is applicable to all generators who accumulate

waste in compliance with Section 262.34.

The following information may help to place this

interpretation in context and assist you in advising your clients

as to the most appropriate course of action. First, you should

be aware that this statement is based upon an interpretation of

what the existing rules allow at this point in time rather than a

deliberate and significant shift in Agency policy with respect to

accumulation or treatment. As the preamble states, “Nothing in

Section 262.34 precludes a generator from treating waste when it

is in an accumulation tank or container covered by that

provision.” The interpretation is predicated on the fact that

the Agency has allowed certain types of storage to occur at

generation sites (i.e., accumulation for periods of 90, 180, or

270 days, depending on generator type) without the requirement

for permitting or interim status. Since the Agency has never

developed standards specific to treatment, the same technical

standards applicable to such storage (i.e., Subpart I or J of

EXHIBIT A

http://yosemite.epa.gov/OSW/rcra.nsf/Documents/488A390B245A3 I69852565DA006F025D 7/4/2005

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1-’age

2

or

.~

Part 265) would also be applicable to treatment.

Thus, we do not believe that allowing treatment to occur

while wastes are being accumulated prior to subsequent

management, in full compliance with all 9262.34 requirements,

-2-

including applicable tank or container standards, is currently

prohibited under the existing regulatory scheme.

Since the term “accumulation” is not defined in the

regulations, the Agency would not distinguish between

accumulation for handling other than treatment and accumulation

for the sole purpose of on-site treatment. Thus, each of your

process descriptions do not appear to be subject to permitting at

this time, provided all ofthe Section 262.34 requirements are

met.

With respect to the limits of treatment which may occur

without a permit on-site, this interpretation only applies to

treatment occurring in a generator’s accumulation tanks or

containers subject to, and in compliance with, Section 262.34.

This means that the tank

or container in which treatment occurs

must be appropriately marked with the date the accumulation

period began, the tank

or container must be completely emptied

every

90 days (or 180/270 days for generators of 100-1000 kg/mo),

and must be operated in strict compliance with Subparts I

or J of

Part 265. Treatment in other than tanks or containers (e.g.,

incineration, land treatment or treatment in surface

impoundments) would continue to require a permit.

We would expect that generators that treat hazardous waste

on-site in tanks or containers and who have obtained interim

status, a full permit, or have a Part B application pending might

wish to exit the permit process on the basis ofthis

interpretation. Since such on-site treatment without a permit

has never been precluded under

RCRA, those who now wish to avail

themselves ofthis exemption may do so, provided they comply with

all applicable rules respecting withdrawal ofpermit

applications. Specifically, these facilities will need to comply

with

Part 264 or 265 facility closure requirements unless they

can demonstrate that their treatment tank or container has always

been operated in strict conformance with the requirements of

Section 262.34. In addition, these generators would also be

subject to Section 3008(h) corrective action provisions.

Finally, we would also caution those generators who may wish

to alter their accumulation practices in order to conduct

treatment without a permit, not to rely upon the continued

http://yosemite.epa.gov/OSW/rcra.nsf/Documents/488A390B245A31 69852565DA006F025D 7/4/2005

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Page

3

ot

3

existence of this exemption, particularly where making process

changes requiring substantial capital outlays may be involved.

Specifically, EPA has recently published an advance notice of

proposed rulemaking that discusses eliminating the accumulation

exemption for large quantity generators. Should the Agency

decide at some time in the future to either modi& the

accumulation rule in some manner or to write specific standards

for treatment, the obligations of generators with respect to

treatment in accumulation tanks could change.

If I can be of any further assistance, or if you have

additional questions, please do not hesitate to contact me.

Sincerely,

Marcia E. Williams

Director

Office of Solid Waste

http://yosemite.epa.gov/OSW/rcra.nsf/Documents/488A390B245A31 69852565DA006F025D 7/4/2005

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RECEIVED

CLERKS OFFICE

BEFORE THE ILLINOIS POLLUTION 5~TfQ~9ARD

MORTON F.

DOROTHY,

STATE OF ILLINOIS

v.

Complainant,

)

))

PolItitiOfl

PCB05-49

ControlBoard

)

FLEX-N-GATE CORPORATION,

)

an Illinois corporation,

)

)

Respondent.

)

IN SUPPORT OF MOTIONS FOR SUMMARY JUDGMENT

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 ofMotions for Summary Judgment, states as follows:

1.

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

to All Counts ofComplainant’s Complaint and its Motion for Partial Summary Judgment

as to Counts II through VI of Complainant’s Complaint (collectively “Motions for

Summary Judgment”).

2.

On June 24, 2005, Complainant filed his Responses to these Motions for

Summary Judgment.

3.

In his Response to Motion for Summary Judgment, responding to Flex-N-

Gate’s Motion for Summary Judgment as to All Counts ofComplainant’s Complaint,

Complainant argues:

Flex-N-Gate’s motions for summary judgment are not based on any facts

adduced during discovery. They appear rather to be a repetition ofthe

legal arguments advanced in the motion to dismiss, which the Board has

already denied.

Complainant’s Response to Motion for Summary Judgment at ¶7.

---

4.

Complainant also incorporates this paragraph into his Response to

Motion for Partial Summary Judgment as to Counts II

—

VI. S~ki~

at ¶1.

5.

Flex-N-Gate strongly disagrees with Complainant’s characterization ofthe

Illinois Pollution Control Board’s (“Board”) Orderdenying Flex-N-Gate’s Motion to

Dismiss, and asks the Board for leave to file a Reply in support ofits Motions for

Summary Judgment addressing this argument by Complainant, which Flex-N-Gate did

not anticipate and could not have anticipated in its Motions for Summary Judgment.

6.

Section 101.500(e) ofthe Board’s procedural rules provides that a party

that files a Motion before the Board may file a Reply in support ofthat Motion if

“permitted by the Board orthe hearing officer to prevent material prejudice.” 35111.

Admin. Code § 101.500(e).

7.

The Board obviously knows the reason(s) for its Order denying Flex-N-

Gate’s Motion to Dismiss.

8.

However, to the extent that the Board considers Complainant’s argument

on the import of that Order, Flex-N-Gate would be materially prejudiced if it also is not

granted the opportunity to state its position regarding that Order for the Board’s

consideration.

9.

In addition, in his Response to Motion for Summary Judgment,

Complainant acknowledges that he “has the burden of proofin connection with” Counts

II through VI of his Complaint, but nevertheless argues that even if “the evidence

presented to the Board is insufficient to establish a violation of the contingencyplan

requirements” at issue in those Counts, “the Board should find respondent in violation of

2

---

the permit requirement.” Complainant’s Response to Motion for Summary Judgment at

¶~29,29.a; Complainant’s Response to Motion for Partial Summary Judgment as to

Counts II

—

VI at ¶~20,20.a. Flex-N-Gate does not completely understand how the

“insufficiency” of evidence to prove a violation of“the contingency plan requirements”

at issue in Counts II through VI relates to “the permit requirement” at issue in Count I.

Nevertheless, Flex-N-Gate did not and could not have anticipated this argument by

Complainant, and to the extent that the Board considers this argument, Flex-N-Gate

would be materially prejudiced if it is not granted the opportunity to address this

argument so that the Board can consider Flex-N-Gate’s position as well.

10.

Finally, in paragraph 12 ofhis “Affidavit” in support ofhis Responses to

Flex-N-Gate’s Motions for Summary Judgment, Complainant alleges that Flex-N-Gate

“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.” As discussed in Flex-N-

Gate’s Motion to Strike Affidavits Filed and Unsupported Statements Made in Support of

Complainant’s Summary Judgment Filings and Motion for Admonishment of

Complainant (“Motion to Strike and Admonish”), however, the Board must strike this

portion of Complainant’s Affidavit as it fails to comply with Supreme Court Rule 191.

See Motion to Strike and Admonish at 12. In the event that the Board declines to strike

this portion ofComplainant’s Affidavit, Flex-N-Gate moves the Board for leave to

address this allegation in a Reply in support of its Motions for Summary Judgment. Flex-

N-Gate strenuously denies that it has “refused” to answer any proper discovery request

from Complainant, and would be prejudiced if the Board considers Complainant’s

3

---

allegation that it did so without affording Flex-N-Gate the opportunity to reply to such

allegation.

WHEREFORE, Respondent, FLEX-N-GATE CORPORATION, respectfully

moves the Illinois Pollution Control Board to grant FLEX-N-GATE CORPORATION

leave to file a Reply in Support of its Motions for Summary Judgment as set forth above,

and to award FLEX-N-GATE CORPORATION all other reliefjust and proper in the

premises.

Respectfully submitted,

FLEX-N-GATE CORPORATION

Responde

-

Dated: July 8, 2005

By:/s/ Thomas G. Sa

One of tts../o neys

Thomas G. Safley

HODGE DWYER

ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

GWST:003/FillMotion

for

Leave to File Reply in Support of Motions for Summary Judgment

4

---

BEFORE THE ILLINOIS POLLUTIO1QI~b&93~!~ARD

MORTON F. DOROTHY,

JUL

182005

Complainant,

)

)

pollutionSTATE

OFControlILLINOISBOW4

v.

)

PCB05-49

)

FLEX-N-GATE CORPORATION,

)

an Illinois corporation,

)

)

Respondent.

)

MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT I

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 for Partial Summary Judgment as to Count I (“Motion for Partial

Summary Judgment”), states as follows:

I.

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

Counts of Complainant’s Complaint (“Motion for Complete Summary Judgment”) and its

Motion for Partial Summary Judgment as to Counts II through VI of Complainant’s

Complaint (collectively “Motions for Summary Judgment”). In its Motion for Complete

Summary Judgment, Flex-N-Gate seeks summary judgment as to all counts of

Complainant’s Complaint, including Count I.

On June 20, 2005, Complainant mailed his cross-motion for summary judgment

as to Count I ofComplainant’s Complaint

—

that is, Complainant’s Motion for Partial

Summary Judgment

—

to counsel for Flex-N-Gate. ~ Complainant’s Certificate of

Service, dated June 20, 2005.

---

On June 24, 2005, Complainant filed his Responses to Flex-N-Gate’s Motions for

Summary Judgment. In his Response to Motion for Summary Judgment (responding to

Flex-N-Gate’s Motion for Complete SummaryJudgment), Complainant includes a

section devotedto arguments in support of his Motion for Partial Summary Judgment.

See Complainant’s Response to Motion for Summary Judgment at 4-7. See also

Complainant’s Response to Motion for Partial Summary Judgment as to Counts II

—

VI,

at 2-4.

For the reasons set forth below, the Illinois Pollution Control Board (“Board”)

should deny Complainant’s Motion for Partial Summary Judgment.

II.

FACTS

The facts of this matter that may be relevant to Complainant’s Motion for Partial

Summary Judgment are as follows:

Flex-N-Gate owns and operates a facility at 601 Guardian Drive in Urbana,

Illinois (“Facility”). Complaint at ¶3. At the Facility, Flex-N-Gate primarily

manufactures bumpers for vehicles. I4~

at ¶4.

The Facility’s wastewater treatment equipment generates wastewater treatment

sludge. Affidavit of James Dodson (“Dodson Aft”), originally attached to Flex-N-Gate’s

Motion for Complete Summary Judgment, attached hereto as Exhibit A, at ¶1J4, 9, 18.

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

considers the sludge to be exempt from regulation under the Resource Conservation and

Recovery Act (“RCRA”). Id. at ¶11. After Flex-N-Gate removes the sludge from this

2

---

equipment, the Facility accumulates the sludge in containers prior to the transportation of

the sludge off-site for recycling. Id. at ¶9.

In addition, the Facility as

part

of its normal operations produces several

(currently ten) other streams of RCRA hazardous waste. Flex-N-Gate Corporation’s

Answers to Complainant’s Interrogatories, relevant portions ofwhich are attached hereto

as Exhibit B, at 1-2 (answer to Interrogatory No. 3). Pursuant to 35 Ill. Admin. Code §

722.134(a) and (c), Flex-N-Gate accumulates each ofthese hazardous wastestreams on-

site in containers before shipping the waste off-site for treatment, storage or disposal. Id.;

Dodson Aff. at ¶12.

III.

ANALYSIS

A.

Summary Jud~mentStandard

Flex-N-Gate has set forth the Board’s standard of review for summary judgment

motions at pages 10 to 11 of Flex-N-Gate’s Motion for Complete Summary Judgment.

Flex-N-Gate hereby incorporates that discussion into this Response.

In addition, Flex-N-Gate notes that the Board has held that in ruling on “cross-

motions for summary judgment, the Board must consider the facts of each motion in the

light most favorable to the non-movant.” United Disposal of Bradley. Inc. v. Municipal

Trust & Say. Bank, PCB No. 03-235, 2004 Ill. ENV LEXIS 337, at *37

(Ill.Pol.Control.Bd. June 17, 2004) (citations omitted). Finally, as with any motion filed

with the Board, in the case ofa Motion for Summary Judgment:

3

---

The burden is upon the movant to clearly state the reasons for and the

grounds upon which a motion is made, and to timely file and adequately

support a motion directed to the Board.

Goose Lake Ass’n v. Robert J. Drake, Sr., First Nat’I Bank of Joliet as Trustee. Trust No.

370, PCB No. 90-170, 1991 Ill. ENV LEXIS 432, at

**

1-2 (Ill.PoLControl.Bd. June 6,

1991).

B.

Complainant’s ArEument

As Complainant notes in his Motion for Partial Summary Judgment, paragraph

one of Count I of Complainant’s Complaint states:

Respondent is operating a hazardous waste treatment and storage facility

without a RCRA permit or interim status, in violation of Section 21W of

the Act and 35111. Adm. Code 703.121(a).

Complainant, Count I.

Flex-N-Gate’s Answer to this paragraph states:

Flex-N-Gate denies the allegations ofparagraph one of Count I of

Complainant’s Complaint.

Flex-N-Gate’s Answer at 10.

In his Motion for Partial Summary Judgment, Complainant notes that he “has

attached an affidavit stating that respondent is conducting hazardous waste treatment and

storage operations at the GuardianWest facility.” Motion for Partial Summary Judgment

at ¶2. Complainant then argues that Flex-N-Gate “has admitted

. . .

that it is treating

hazardous waste on-site and that it does not have a RCRA permit or interim status,” and

that Flex-N-Gate has admitted that it “claims exemption from the RCRA permit

requirement pursuant to 35111. Adm. Code 703.123(a) and 722.134(a) with respect to one

4

---

or more wastes generated by the Guardian West facility.” Motion for Partial Summary

Judgment, ¶~j3,4.

Finally, Complainant argues:

Although respondent admits that it claims exemption from the RCRA

permit requirement pursuant to 35111. Adm. Code 703.123(a) and

722.134(a), it has not alleged such exemption in its answer to Count I, and

is therefore not allowed to introduce evidence showing compliance with

those provisions as a defense to Count I.

Motion for Partial Summary Judgment, at ¶5.

For the reasons set forth below, Flex-N-Gate disagrees that Complainant is

entitled to summaryjudgment on Count I ofhis Complaint.

C.

Flex-N-Gate is not Prohibited from Raising RCRA Exemptions.

Flex-N-Gate does not entirely understand what Complainant is arguing. As far as

Flex-N-Gate can tell, however, Complainant’s argument is as follows:

(1)

Flex-N-Gate treats and stores hazardous waste;

(2)

Flex-N-Gate does not have a permit to do this;

(3)

Flex-N-Gate needs a permit to do this;

(4)

Flex-N-Gate argues that it is, in part, exempt from the RCRA permit

requirement under 35111. Admin. Code §~

703.123(a) and 722.134(a);

(5)

however, Flex-N-Gate did not raise these exemptions in its Answer to

Complainant’s Complaint;

(6)

because Flex-N-Gate did not raise these exemptions in its Answer, Flex-

N-Gate is, by some unidentified mechanism (see further discussion

below), prevented from raising these exemptions now;

(7)

because Flex-N-Gate is prevented from raising these exemptions now, the

Board cannot consider Flex-N-Gate as claiming these exemptions;

5

---

(8)

therefore, for purposes ofthis action, the Board must consider the

hazardous waste that Flex-N-Gate states it is handling under these

exemptions as not being handled under any exemption to the RCRA

permitting requirement;

(9)

therefore, Flex-N-Gate must be considered to need a permit for its

handling ofthis waste;

(10) because Flex-N-Gate does not have a permit, it is in violation ofthe statute

and regulation.

Flex-N-Gate does not understand the basis for this argument. Complainant cites

no rule or caselaw in support of his argument that because Flex-N-Gate “has not alleged

such exemption that is, the 90-day accumulation provision and the wastewater treatment

unit exemption in its answer to Count I.

. .

Flex-N-Gate is therefore not allowed to

introduce evidence showing compliance with those provisions as a defense to Count I.”

In his Motion for Summary Judgment, Complainant does not even identify the alleged

legal principle or other mechanism (e.g., estoppel, waiver, etc.) that Complainant argues

prevents Flex-N-Gate from “introducing evidence showing compliance with those

provisions.” See Complainant’s Motion for Summary Judgment.

In the portion of his Response to Flex-N-Gate’s Motion for Complete Summary

Judgment which is devoted to arguments in support ofhis Motion for Partial Summary

Judgment, Complainant restates his previous argument that Flex-N-Gate was required to

raise the exemptions to the RCRA permit requirement as an affirmative defense. $ç~

Complainant’s Response to Motion for Summary Judgment at 4-7. However,

Complainant does not explicitly state that this “failure” is the basis for his Motion-for

Partial Summary Judgment. See id.

6

---

Complainant’s failure to clearly articulate his argument or to explain the basis for

or support that argument makes responding to Complainant’s Motion for Partial

Summary Judgment difficult. Nevertheless, for the following reasons, Flex-N-Gate

disagrees that Complainant is entitled to summary judgment on Count I of his Complaint.

1.

Flex-N-Gate is Not Required to State in its Answer the Reasons it

Denies Allegations in Complainant’s Complaint.

Complainant may be arguing that Flex-N-Gate is required in its Answer to state

the reasons why it denies any allegations in Complainant’s Complaint. Ifthis is

Complainant’s argument, Flex-N-Gate disagrees.

In a Board enforcement action, a Respondent’s answer ofcourse may admit,

“deny, or assert insufficient knowledge to form a belief of, a material allegation in the

complaint.” People

y~

Champion Env. Sery., Inc., PCB No.

05-199,

2005 Ill. ENV

LEXIS 412 (IlLPol.Control.Bd. June 2, 2005); 35 Ill. Admin. Code § 103.204(d).

Accord,

735 ILCS 5/2-6 10. As Complainant notes in his Motion for Sanctions for

Evasive Pleading (“Motion for Sanctions”), Section 2-610 of the Illinois Code ofCivil

Procedure provides that “every answer and subsequent pleading shall contain an

explicit admission or denial of each allegation of the pleading to which it relates,” and

that “denials must not be evasive, but must fairly answer the substance ofthe allegation

denied.” 735 ILCS

5/2-610(a),

(c). See Motion for Sanctions at ¶8. Neither this rule,

nor Section 103.204(d) ofthe Board’s regulations, however, requires a respondent to

state the reason why it denies an allegation in a Complaint. $~ç

a;

35 Ill. Admin. Code

§ 103.204(d).

7

---

Further, the Comments to Supreme Court Rule 136 make clear that a party

answering a pleading is not required to state the reason why it denies an allegation. Rule

136, “Denials,” addresses responses to pleadings such as answers. See Illinois Supreme

Court Rule 136. The Comments to Rule 136 state in relevant part:

The new rule permits pleading substantially as in the following

illustration:

“5. Defendant denies the allegations ofparagraphs ofthe

complaint and each ofthem.”

Or, if some ofthe allegations ofa paragraph are to be admitted and some

denied, the pleader may state substantially as follows:

“5.

Defendant admits stating facts admitted and denies the

remaining allegations ofparagraph

5

and each of them.”

IL, Comments.

These Comments do not state that, in addition to such statements, a party denying

an allegation in a complaint must state the reason for its denial. Further, these model

denials are similar to the language that Flex-N-Gate used in denying paragraph one of

Count I of Complainant’s Complaint, quoted above.

Further, in In re Estate of Joel F. Kirk, 611 N.E.2d 537, 540 (2dDist. 1993), the

Court held that an answer that denied each allegation ofa Petition to Remove Executor

by stating that the respondent “denies any and all allegations of wrong doing, ill-will, or

breach ofduty” was a sufficient. Ifthis is the case, then Flex-N-Gate’s Answer also is

sufficient.

-

Complainant has cited no authority that a respondent, in addition to denying an

allegation in a complaint, must state the reason for its denial, and, if it fails to do so, is

8

---

prevented from raising an argument later. Further, Flex-N-Gate is aware ofno such

authority. Therefore, to the extent that this argument is the basis of Complainant’s

Motion for Partial Summary Judgment, the Board should deny that Motion.

2.

Exceptions to the RCRA Permitting Reguirement are not

Affirmative Defenses.

Second, Complainant may be arguing that the applicability of the exemptions to

the RCRA permitting requirement is an affirmative defense and that Flex-N-Gate is “not

allowed” to raise these exemptions because it did not raise them as affirmative defenses

in its Answer. $ç~Complainant’s Response to Motion to Dismiss, ¶13.c, 6.b, 7.c

(arguing that these exemptions must be raised by affirmative defense). For the reasons

stated in Flex-N-Gate’s Motion for Complete Summary Judgment, however, the

exemptions to the RCRA permitting requirement are not “affirmative defenses.” Thus,

Flex-N-Gate does not have the burden ofproving through an affirmative defense that it f~

not required to obtain a RCRA permit. Rather, Complainant has the burden ofproving

by his Complaint that Flex-N-Gate is required to obtain a RCRA permit. See Motion for

Complete Summary Judgment at 30-32.

In his Response to Flex-N-Gate’s Motion for Complete Summary Judgment

—

under a heading titled “Complainant’s Motion for Partial Summary Judgment”

—

Complainant again argues that “the exemptions from the RCRA permit requirement

must be raised by affirmative defense.” Response to Motion for Summary Judgment,

¶18.

In support ofthis argument, Complainant

first appears to argue that this position is

necessary:

9

---

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 ofhearing;

and, in order to establish a framework by which the relevance ofevidence

can be decided during discovery and at hearing.

Id.

This argument assumes that the exemptions are “affirmative defenses.”

Complainant has alleged that Flex-N-Gate violated Section 21ffl of the Act and-Section

703.12 1(a) ofthe Board’s regulations, and Complainant has the burden to prove such

violations. By definition, Flex-N-Gate can only have violated these provisions if it was

required to have a RCRA permit and did not. Thus, by definition, Complainant has the

burden to prove that Flex-N-Gate (1) was required to have a RCRA permit, and (2) did

not.

Second, Complainant states: “On page 31 ofthe motion for Complete Summary

Judgment, respondent argues that affirmative defenses before the Board are limited to

general legal defenses such as laches.”

a

at ¶l8.a. Flex-N-Gate does not know what

Complainant means by “general legal defenses,” and Flex-N-Gate did not use this term in

its Motion for Complete Summary Judgment. Rather, Flex-N-Gate argued in its Motion

for Complete Summary Judgment that affirmative defenses before the Board are limited

to arguments that meet the definition that the Board has set for “affirmative defense,” that

is, “a response to a claim which attacks the

legal

right to bring an action, as opposed to

attacking the truth ofclaim.” Id. at 31 (quoting People v. Skokie Valley Asphalt Co.,

Inc., et al, PCB No. 96-98, 2004 Ill. ENV LEXIS 585, at **l9..2o (Sept. 2,2004)). Flex-

N-Gate identified laches as an example of such a defense, in contrast to the exemptions to

10

---

the RCRA permit requirement, which do not “attack the legal right to bring an action,”

but rather, “attack the truth of Complainant’s claim” that Flex-N-Gate was required to

have a RCRA permit. Flex-N-Gate also identifiedthe statute oflimitations as an

“affirmative defense,” and other “affirmative defenses” have been recognized by the

Board in other situations.

Third, Complainant argues:

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.

Complainant’s Response to Motion for Summary Judgment, at ¶1 8.b.

Flex-N-Gate strenuously disagrees. Again, the Board’s test as to whether a

response to a complaint constitutes an “affirmative defense” is whether the response

“attacks the

legal

right to bring an action, as opposed to attacking the truth of

claim.”

People v. Skokie Valley Asphait Co., Inc., et al, 2004 III. ENV

LEXIS 585, at

**19..2o.

An exemption to the RCRA permit requirement does not “attack the legal right to bring

an action”; therefore, it is not an affirmative defense. To put it another way,

Complainant’s claim is that Flex-N-Gate was required to have a permit but did not.

Whether or not an exemption applies goes to the truth of the claim that Flex-N-Gate was

required to have a permit, not Complainant’s legal right to bring this claim.

In fbrther support ofthis argument, Complainant states:

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

Il

---

win by affirmatively alleging and proving compliance with the exemption

in Section 722.134.

Complainant’s Response to Motion for Summary Judgment, at ¶18(b)(i).

Flex-N-Gate responds above to the legal arguments made in this paragraph.

Regarding the factual assertion that “respondent has now admitted, that respondent is

conducting hazardous waste treatment and storage operations without a RCRA permit,”

as discussed in Flex-N-Gate’s Motion to Strike Affidavits Filed and Unsupported

Statements Made in Support of Complainant’s Summary Judgment Filings and Motion

for Admonishment of Complainant (“Motion to Strike and Admonish”), the Board must

strike this assertion because it is unsupported. Motion to Strike and Admonish at 18.

The same is true of Complainant’s statement in paragraph 21 ofhis Response to Motion

for Summary Judgment that “respondent has admitted that it is conducting hazardous

waste treatment and storage operations without a RCRA permit.” Ii

Fourth, Complainant next abandons his earlier position that the exemptions to the

RCRA permit requirement are an affirmative defense because ofthe way in which they

operate, and now argues that:

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.

.

In this case, however, the exemptions are located in the regulations as

complicated rules that stand by themselves.

Response to Motion for Summary Judgment at ¶19(a) and (b).

That is, Complainant here takes the position that whether or not an exemption

constitutes an affirmative defense depends on where the exemption is located: if the rule

and exemption are in the same statutory or regulatory section, the exemption is not an

12

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affirmative defense; if the rule and exemption are in different sections, the exemption

an affirmative defense. This reasoning, in addition to abandoning Complainant’s earlier

position, places form over substance. When determining whether a response to a

complaint constitutes an affirmative defense, it makes no legal difference where the legal

basis for the response is located. For example, authority for a laches defense is located

only in caselaw, not Section 21 (f), and the five-year statute of limitations is located in

735 ILCS 5/13-205, not Section 21(f), but the fact that the authority for these defenses is

not located in Section 21(f) does not make them any less “affirmative defenses.” Again,

what matters, as the Board has held, is whether or not the response “attacks the

legal

right

to bring an action, as opposed to attacking the truth ofclaim.” ~çqple v. Skokie Valley

Asphalt Co., Inc.. et al, 2004 III. ENV LEXIS 585, at **192o

As for Complainant’s argument that the RCRA regulations are “complicated

rules,” and that it would be difficult for a complainant to allege a claim under Section

21(1) ofthe Act or 35 Ill. Admin. Code § 703.121(a) unless the exemptions to the RCRA

permit requirement are considered an affirmative defense, the test ofwhether ornota

response constitutes an affirmative defense is not how complicated it is or how difficult it

is to allege. See Response to Motion for Summary Judgment, at ¶9fl9.b., 20, 20.c.

Fifth, Complainant argues that the exemptions to the RCRA permit requirement

should be considered an affirmative defense “as a matter of administrative efficiency”

so as to “reduce the volume of paper needed to defme the issues.”

a

at ¶20.a. Again,

however, the test of whether or not a response to a complaint constitutes an affirmative

defense is not whether it would be “efficient” for it to constitute an affirmative defense or

13

---

whether or not it would save paper if it constituted an affirmative defense. The test is

whether or not the response “attacks the

legal

right to bring an action, as opposed to

attacking the truth ofclaim.” People v. Skokie Valley Asphalt Co.. Inc.. et al, 2004 111.

ENV LEXIS

585,

at **1920.

Sixth, Complainant argues:

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 decisionto 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.

Complainant’s Response to Motion for Summary Judgment, at ¶20.b.

Whether or not Complainant’s record-keeping suggestion makes sense “as a

matter ofpublic policy,” however, just as the test ofwhether or not a response to a

complaint constitutes an “affirmative defense” does not hinge on how complicated it is

for a complainant to draft his compliant (see discussion above), whether or not a response

constitutes an “affirmative defense” does not hinge on how “simple” it allegedly would

be for a respondent to act if the response is considered an “affirmative defense.” The

issue is not ease ofpleading but burden ofproof A complainant has the burden of

proving his case, and that burden does not shift to the respondent because the statutory or

regulatory scheme at issue is complicated, or because it allegedly would be “easier” for

the respondent to shoulder the burden ofproof

Seventh, Complainant argues that Flex-N-Gate “is suggesting a system that would

encourage people managing hazardous waste to take a ‘we probably qualify for some

14

---

exceptionor 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.” Complainant’s

Response to Motion for Summary Judgment, at ¶20.b.i. Flex-N-Gate does not

understand how the fact that the exemptions to the RCRA permit requirement are not

affirmative defenses could lead to a cavalier attitude about compliance with RCRA

requirements.

Eighth, Complainant states that Flex-N-Gate “has clearly takenthis approach in

this case.” Id. at ¶20.6.ii. As noted in Flex-N-Gate’s Motion to Strike and for

Admonishment at ¶13, however, Complainant’s only attempt to support this conclusion

a repetition of this sentence in paragraph 15 ofComplainant’s Affidavit in Support of

Responses to Motions for SummaryJudgment

—

is deficient because it constitutes an

“opinion and conclusion,” not a “fact admissible in evidence.”

Complainant attempts to support this conclusion by arguing:

If Flex-N-Gate had consciously decided before the incident that the plating

room floor was part ofa “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.

Response to Motion for Summary Judgment, at ¶20.b.ii.

Again, however, this argument is an attempt by Complainant to support his

position that the fact that the exemptions to the RCRA permit requirement are not

affirmative defenses somehow promotes a cavalier attitude toward RCRA compliance.

Flex-N-Gate does not understand how this allegedly is the case. Further, Complainant

does not cite any affidavit or other authority in support ofthis sentence, and

15

---

Complainant’s Affidavit in Support of Responses to Motions for Summary Judgment

does not contain any statements in support of this statement, much less explain how

Complainant would have “personal knowledge” or be in a position to “testi&

competently” regarding what “Flex-N-Gate.

. .

consciously decided before the incident”

regarding “the plating room floor.” Thus, as stated in Flex-N-Gate’s Motion to Strike

and Admonish, the Board must strike this sentence of Complainant’s Response to Motion

for Summary Judgment. $~Motion to Strike and Admonish at ¶18.

In a further attempt to support his position that the fact that exemptions to the

RCRA permit requirement are not affirmative defenses somehow promotes a cavalier

attitude toward RCRAcompliance, Complainant argues:

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 ofthe earlier

excuses.

Response to Motion for Summary Judgment, at ¶20.b.ii.

Flex-N-Gate does not understand this argument either. As to Complainant’s

assertion that “counsel is clearly making after-the-fact excuses,” assuming that by

“after-the-fact” Complainant means after the incident, again, Complainant has cited no

support for his characterization ofFlex-N-Gate’s actions before the incident, nor has he

demonstrated that he has “personal knowledge” of or the ability to “testify competently”

regarding Flex-N-Gate’s actions. See Motion to Strike and Admonish at ¶18.

Further, Flex-N-Gate’s Motion to Dismiss was solely “focused on the wastewater

treatment unit argument.” As to Count I of Complainant’s Complaint, which is the only

16

---

count at issue for purposes of this discussion, Flex-N-Gate’s Motion to Dismiss cited

Qiily 35 Ill. Admin. Code § 703.123(e) (which contains the “wastewater treatment unit”

and “elementary neutralization unit” exemptions), and only argued that the wastewater

treatment unit exemption applied. ~ Motion to Dismiss at ¶1J14-33. Flex-N-Gate did

not raise any other exemption to the RCRA permit requirement, much less “multiple

exemptions.”

Thus, even if it were relevant to the question ofwhether or not an exemption to

the RCRA permit requirement is an “affirmative defense” (which, as discussed above, it

is not), there is no evidence that Flex-N-Gate is “making.

. .

excuses,” that Flex-N-Gate

is making “after-the-fact exemption arguments” (or as Complainant characterizes them,

“excuses”), or that Flex-N-Gate “has decided that the wastewater treatment unit is the

best ofthe earlier exemption arguments.” Flex-N-Gate did not make any “earlier

exemption arguments.” Rather, Flex-N-Gate has consistently maintained the same

position throughout this litigation: that Flex-N-Gate is not requiredto have a RCRA

permit for the waste managed in its wastewater treatment unit because ofthe operation of

the wastewater treatment unit exemption.

Ninth, Complainant states:

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 ofadditional exemptions, without affording complainant the

opportunity to present evidence that the exemption does not apply.

Response to Motion for Summary Judgment, at ¶20.d.

17

---

With all due respect, this argument ignores the Board’s discovery procedures,

which Complainant has utilized in this case. Interrogatory No. 3 ofComplainant’s

Interrogatories asks:

By which provisions has respondent, prior to August 5, 2004, claimed

exemption from the RCRA permit requirement for the Guardian West

facility?

Complainant’s Interrogatories, a copy ofwhich is attached hereto as Exhibit C, at

Interrogatory No. 3.

Flex-N-Gate responded to this Interrogatory, identifying eachhazardous

wastestream that the facility produces, the RCRA classification for each wastestream, and

the exemption from the RCRA permit requirement on which Flex-N-Gate relies to

conclude that it is not required to obtain a RCRA permit for its management ofsuch

wastestream, either 35 Ill. Admin. Code § 703.123(a) or 35 Ill. Admin. Code §

703.123(e). Exhibit B, answer to Interrogatory No. 3. Thus, Complainant is not

“required to take the case to hearing without knowing which permit exemptions” apply to

the facility, and Flex-N-Gate never has argued otherwise. Further, if Flex-N-Gate raised

a new exemption “on closing argument” at hearing “without affording complainant the

opportunity to present evidence that the exemption does not apply,” Complainant clearly

would have grounds for a motion to exclude such argument by Flex-N-Gate on the

grounds that Flex-N-Gate had failed to comply with Section 101.616(h) ofthe Board’s

procedural rules, which requires parties to update their responses to discovery requests.

Thus, Flex-N-Gate does not understand how the fact that exemptions to the RCRA permit

18

---

requirement are not affirmative defenses can be translated into prejudice to Complainant

at hearing.

Tenth, Flex-N-Gate submits that Complainant is the party advancing an untenable

legal position. Again, Complainant’s position is as follows:

Complainant’s burden is to show that respondent falls within the general

rule requiring a RCRA permit. Ifrespondent wishes to show that this

facility falls within an exclusion, respondent needs to raise that exclusion

by way of affirmative defense, and to introduce evidence as to the

applicability ofthe exclusion. (35 Ill. Adm. Code 103.205(d)).

Complainant’s Response to Motion to Dismiss, ¶3.c.

Ifit is true that Complainant’s only “burden is to show that respondent falls

within the general rule” requiring a RCRA permit, then Complainant has a valid cause of

action against every facility in the State ofIllinois that generates hazardous waste,

regardless ofthe circumstances, with every facility having the burden ofproving that the

RCRA permit requirement does not apply to it. The fact that a party manages hazardous

waste cannot alone be a sufficient basis for a cause of action against that party; otherwise,

persons who for some reason are opposedto industry could just obtain a copy ofthe list

of entities in Illinois with generator identification numbers indicating that they ship

hazardous waste off-site for treatment, storage or disposal, and, in good faith, file a

complaint against each of these companies to force them to spend money defending

themselves. Managing hazardous waste is not against the law. What is against the law is

managing hazardous waste without a permit when a permit is required. Thus, the burden

ofa complainant is, and must be, to establish that a permit was required.

19

---

3.

Even ifthe RCRA Permitting Exemptions were Affirmative

Defenses, The Proper Course Would Be to Allow Flex-N-Gate to

Amend its Answer to Assert Those Defenses.

As discussed above, the RCRA permitting exemptions are not affirmative

defenses. If for some reason the Board disagreed, however, and found that these

exemptions did constitute affirmative defenses, and therefore that the Board could not

grant sunm~aryjudgment to Flex-N-Gate on Count I of Complainant’s Complaint, this

would be a decision offirst impression, as the Board has never before issued such a

holding. In this circumstance, the proper course would be not to hold that Flex-N-Gate

had waived its right to assert these exemptions and on that basis grant Complainant

summary judgment, but to grant Flex-N-Gate leave amend its Answer to assert these

exemptions. See People v. Petco Petroleum Corp., PCB No. 05-66, 2005 Ill. ENV

LEXIS 384, at **7..9 (Il1.Pol.Control.Bd. May 19, 2005) (holding that in ruling on a

motion for leave to amend a pleading,

“

the Board looks to Section 2-616 of the Code of

Civil Procedure for guidance”); 735 ILCS 5/2-616(a) (stating, in relevant part, that “at

any time before fmaljudgment amendments may be allowed on just and reasonable

terms,

. . .

adding newcauses ofaction or defenses, and in any matter, either ofform or

substance, in any..

.

pleading..

.

which may enable.

. .

the defendant to make a defense

or assert a cross claim.”)

B.

Complainant’s “Affidavit” is Deficient, and Does Not Establish that

Complainant is Entitled to Summary Judgment.

As discussed above, Flex-N-Gate is not barred from arguing that it is exempt from

the RCRA permit requirement. Furthermore, even if it was, the alleged factual basis for

Complainant’s Motion for Partial Summary Judgment

—

Complainant’s “Affidavit” (~c

20

---

Complainant’s Motion for Partial Summary Judgment at ¶2)

—

is deficient and does not

establish that Complainant is entitled to summary judgment.

As discussed in Flex-N-Gate’s Motion to Strike and Admonish, Complainant’s

“Affidavit” does not comply with Illinois Supreme Court Rule 191, because (1) it states

legal conclusions and “opinions and conclusions” rather than “facts admissible in

evidence,” (2) it fails to attach sworn or certified copies of documents on which

Complainant relies for information set forth in the Affidavit, and (3) it does notestablish

that Complainant has “personal knowledge” of the statements made or that Complainant,

“if sworn as a witness, can testify competently thereto.” Motion to Strike and Admonish

at 4-8. Therefore, for the reasons stated in Flex-N-Gate’s Motion to Strike and

Admonish, the Board must strike this “Affidavit.”

Further, as discussed in Flex-N-Gate’s Motion to Strike and Admonish, the

“admission” which Complainant references in paragraph three of his Motion for Partial

Summary Judgment is irrelevant. $~ith at 5-7.

Thus, as the Board must strike Complainant’s “Affidavit,” and Complainant has

provided no other factual support for his Motion for Partial Summary Judgment, the

Board for this reason also must deny Complainant’s Motion for Partial Summary

Judgment.

III.

CONCLUSION

As noted above, the Board has held that when any motion is filed with it, “the

burden is upon the movant to clearly state the reasons for and the grounds upon which a

motion is made, and to timely file and adequately support a motion directed to the

21

---

Board.” Goose

Lake Ass’n, 1991 111. ENV

LEXIS 432, at **1..2. Here, Complainant

argues that it is entitled to summary judgment because Flex-N-Gate “is not allowed to

introduce evidence showing compliance with” the 90-day accumulation provisions of

RCRA. However:

(1)

Complainant cites no statute, rule, or caselaw that allegedly disallows

Flex-N-Gate’s argument;

(2)

Complainant does not even identify the legal principle that allegedly

disallows Flex-N-Gate’s argument;

(3)

Flex-N-Gate’s Answer is not required to state the reason why it denies

allegations in Complainant’s Complaint;

(4)

the exemptions to the RCRA permitting requirement are not affirmative

defenses; and,

(5)

Complainant’s “Affidavit” is deficient and does not establish that he is

entitled to summary judgment.

Thus, it is abundantly clear that Complainant has failed to “clearly state the reasons for

and the grounds upon which his motion is

made,” and that Complainant has failed to

“adequately support his motion.”

WHEREFORE, for the reasons stated above, Respondent, FLEX-N-GATE

CORPORATION, respectifilly prays that the Illinois Pollution Control Board deny

22

---

Complainant’s Motion for Partial Summary Judgment and award FLEX-N-GATE

CORPORATION such other relief as the Illinois Pollution Control Board deemsj’~s-t•.

Dated: July 8, 2005

Thomas G. Safley

HODGE DWYER ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705-5776

(217) 523-4900

Respectfully submitted,

FLEX-N-GATE CORPORATION

By

OwST:Oo3fFil/Response to Motion for Partial Summary Judgment as to Count I

Respondent,

One

23

---

BEFORE THE ILLINOIS

POLLUTION CONTROL BOARD

CHAMPAIGN COUNTY, ILLINOIS

MORTON F. DOROTHY,

)

)

Comphinant,

)

)

v.

)

PCB05-49

)

FLEX-N-GATE CORPORATION,

)

an Illinois corporation,

)

)

Respondent.

)

AFFIDAVIT OF JAMES DODSON

James

Dodson, being first duly sworn, deposes

and states under oath, and

as a witness, would testi&, as follows:

1.

1 have personal

knowledge

of the matters set forth in this affidavit.

2.

I am employed as Corporate Enviromnental Director for Flex-N-Gate

Corporation (“Flex-N-Gate”).

3.

The electroplating line at the facilityat issue in this matter (“Facility”), as

described on page three ofFlex-N-Gate’s Motion for Summary Judgment as to All

Counts of Complainant’s Complaint’ (“Motion for Complete Summary Judgment”), isa

standard design

for plating operations.

4.

The table set forth at pages four and five ofFlex-N-Gate’s Motion for

Complete Summary Judgment accurately describes the pieces of equipment involved in

treating wastewater at the Facility as

of

August 2004, the material out ofwhich such

equipment is/was constructed,

and the purpose ofeach piece ofequipment, in the order

that wastewater enters each piece of equipment.

EXHIBIT A

---

5.

The sludge dryer referenced in that table was removed from the Facility in

March 2005.

6.

All ofthis equipment (hereinafter“Wastewater Treatment Equipment”) is

located on-site, within the boundaries of the Facility.

7.

The diagram attached to Flex-N-Gate’s Motion for Complete Summary

Judgment as Exhibit D roughly illustrates the layout ofthe wastewater treatment system.

8.

Following treatment in the Wastewater Treatment Equipment, liquids are

discharged to a Publicly Owned Treatment Works C’POTW”) operated by the Cities of

Champaign and Urbana, Illinois (“UCSD”).

9.

Following dewatering, sludge is placed into a satellite accumulation

containerin preparation for placement into 90-day accumulation containers, where it is

accumulated before it is shipped off-site for recycling.

10.

The document attached to Flex-N-Gate’s Motion forComplete Summary

Judgment as Exhibit E is a true and accurate copy ofa manifest by which Flex-N-Gate

has had such sludge transported off-site recycling.

II.

While the wastewatei~treatment sludge is located inside the equipment that

is used to treat the Facility’s wastewater, Flex-N-Gate considers the sludge to be exempt

from RCRA pursuant to 35111. Admin. Code § 703.123(e).

12.

Pursuant to 35111. Admin. Code §~

703.123(a) and 722.134(a), Flex-N-

Gate accumulates eachhazardous wastestream identified in the table set forth on page 9

ofFlex-N-Gate’s Motion for Complete Summary Judgment on-site in containers before

shipping the waste off-site for treatment, storage or disposal.

2

---

13.

The wastewater that the Facility discharges to the UCSD includes

wastewater from the Plating Room floor.

14.

Flex-N-Gate discharges to the UCSD pursuant to an authorization that

UCSD issued to Flex-N-Gate, a copy ofwhich authorization is attached to Flex-N-Gate’s

Motion for Complete SummaryJudgment as Exhibit I.

15.

The sludge that the Facility’s Wastewatcr Treatment Equipment generates

is a hazardous waste as defined in 35 111. Adm. Code § 721.103.

16.

The Facility’s wastewater treatment sludge “has not been excluded from

the lists in Subpart D ofthis Part under 35111. Adm. Code 720.120 and 720.122.”

17.

This Facility’s Wastewater Treatment Equipment:

(a)

is stationary;

(b)

is “designed to contain an accumulation ofhazardous waste,” i.e.,

the F006 sludge that the treatment ofthe wastewater creates;

(c)

is “constructed primarily ofnonearthen materials (e.g., wood,

concrete, steel, plastic),” in this case, Fiberglass Reinforced Plastic

and steel; and,

(d)

these “noneart~enmaterials.

. .

provide structural support.”

18.

When wastewater treatment sludge is initially generated at the Facility, it

is located inside the Facility Wastewater Treatment Equipment.

19.

The only equipment at the Facility to which “includes pH adjustment,

reduction ofhexavalent chromium.

. ,

and precipitation ofa nickel andchromium

hydroxide sludge” is the Facility’s WWTU.

20.

By the terms “sludge drying unit”/”unit for drying.

. .

hazardous waste

sludge,” Complainant is referring to the Sludge Dryer that was part of the Facility’s

3

---

WWTU prior to March 2005, and/or the Filter Press, which are/were used to dewater

sludge produced in the WWTU; this is the only equipment at the Facility used to dry

“sludge.”

21.

By the terms “sludge storage unit”/”unit for..

.

storing hazardous waste

sludge,” Complainant is referring to the tank used to store sludge before dewatering

and/or the satellite accumulation container into which sludge is placed after dewatering.

22.

The Facility has a RCRA contingency plan.

23.

Flex-N-Gate prepared this contingency plan because it manages some of

the hazardous waste generated at the Facility pursuant to the accumulation provision of

35 Ill. Admin. Code § 722.134(a).

Under penalties as provided by law pursuant to Section 1-

109

of the Code

of Civil Procedure, the undersigned

certifies that the statements set forth in this instrument

are true and correct, except as to matters therein stated

to be on information and belief and as to such matters the

undersigned certifies as aforesaid that he verily believes

the same to be true.

FURTHER .AFFIANT SAYETH NOT.

James Dodson

Subscribed and sworn to before

________,2005.

_______

1

f

~

NotaryPubIjç5tateofjr~jp.oj1 ~

Not

Putlic

U1.~JVLt1J~

Commission

WJLVt

Exp~

O7/il!2O!~J

GW5T;003/Fil/Aflidavit of

James Dodson

—Complete MSJ

4

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MORTON F. DOROTHY,

)

)

Complainant,

)

)

v.

)

PCBNo.

05-49

)

(Enforcement)

FLEX-N-GATE CORPORATION,

)

an Illinois corporation,

)

Respondent.

)

FLEX-N-GATE CORPORATION’S

ANSWERS TO COMPLAINANT’S INTERROGATORIES

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

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

Code § 101.620, and for its Answers to Complainant’s Jnterrogatories, states as follows:

1.

List any witnesses respondent intends to call at hearing, including name,

address, phonenumber, andwhether the witness is to testif~’as an expert witness.

ANSWER:

Flex-N-Gate has not yet determined what witnesses, if any, it

intends to call at hearing. Flex-N-Gate will supplement its response to this Interrogatory

pursuant to 35111. Admin. Code § 101.616(h) at suchtime that it makes such

determination.

2.

List any documentary or physical evidence respondent intends to

introduce at hearing.

ANSWER:

Flex-N-Gate has not yet determined what documentary or physical

evidence, if any, it intends to introduce at hearing. Flex-N-Gate will supplement its

response to this Interrogatory pursuant to 35111. Admin. Code § 101.616(h) at such time

that it makes such determination.

3.

By which provisions has respondent, prior to August

5,

2004, claimed

exemption from the RCRA permit requirement for the Guardian West facility?

ANSWEL First, the Guardian West facility which is the subject ofthis action

(“Facility”) has “claimed exemption from the RCRA permit requirement” for any

---

material contained in the Facility’s wastewater treatment unit pursuant to the “wastewater

treatment unit exemption”contained in 35 Ill. Admin. Code 703.123(e).

Second, the Facility has “claimed exemption from the RCRApermit requirement”

forcertain other wastestreams which it sends off-site for treatment, storage or disposal

pursuant to 35 Ill. Admin. Code 703.123(a). Those wastestreams are.

Wastestream (Flex-N-Gate

Description)

RCRA Classification

flush solvent

D00 1 for flammability.

wastewater treatment sludge

F006 is a listed waste

chromic acid

D007 for chromium, 1)002 for corrosive, 1)008 for

lead

paint

DOOl for flammability

chrom. solids like concrete

with chromic acid

1)007 for chromium

solvent rags

DOOl for flammability

barium sludge

1)002 for corrosive, 1)007 for chromium, D005 for

barium, D008 for lead

DOOl for flammability

aerosols

chrome rags

D007 for chromium

Tanks #1, #3, #4

1)002 for corrosive, D007 for chromium

chrom. contaminated solids-

PPE

D002 for corrosive, 1)007 for chromium

4.

Has respondent had any laboratory analyses performed on the liquid,

sludge or debris under the plating line? Provide the results of such analyses.

ANSWER:

Flex-N-Gate has not had anylaboratory analysis performed on any

material located “under the plating line.”

5.

Has respondent had any laboratory analyses performed on the influent into

what respondent refers to as the “wastewater treatment unit” receiving “wastewater” from

the plating area? Provide the results ofsuch analyses.

2

---

—S

-‘-

BEFORE THE ILLINOIS

POLLUTION CONTROL BOARD

CHAMPAK3N

COUNTY.

ILLINOIS

MORTON F. DOROTHY,

Complainant,

vs.

)

No. PCB 05-049

FLEX-N-GATE CORPORATION,

an Illinois Corporation.

Respondent.

INTERROGATOR1ES

Complainant Morton F. Dorothy requests that respondent Flex-N-Gate

Corporation respond to the following interrogatories within 30 days after the date of this

request:

1.

List any witnesses respondent intends to call at hearing, including name,

address, phone number, and whether the witness is to testify as an expert

witness.

2.

List any documentary or physical evidence respondent intends to introduce at

hearing.

3.

By which provisions has respondent, prior to August 5, 2004, claimed exemption

from the RCRA permit requirement for the Guardian West facility?

4.

Has respondent had any laboratory analyses performed on the liquid, sludge or

debris under the plating line? Provide the results of such analyses.

5.

Has respondent had any laboratory analyses performed on the influent into what

respondent refers to as the “wastewater treatment unit” receiving “wastewater”

from the plating area? Provide the results of such analyses.

6.

By what name does respondent wish to refer to the area under the plating tanks?

7.

By what name does respondent wish to call the accumulated liquid in the sump

area under the plating tanks?

8.

By what name does the respondent wish to call the series of events that

occurred during third shift on August 4 - 5, 2004 on respondent’s plating line,

which events are the subject of this enforcement action?

V~LEXHiBW

IC