CERTIFICATE OF SERVICE
MOTION TO SUBSTITUTE AFFIDAVITS
MOTION TO STRIKE UNSUPPORTED
OF RESPONDENT
Thomas C. Safley
Hodge Dwyer Zeman
3150 Roland Avenue
Post Office Box 5776
Springfield, IL 62705-5776
Carol Webb
Hearing Officer, IPCB
1021 North Grand Avenue East
Post Office Box 19274
Springfield, IL 62794-9274
JUL 222005
STATE OF ILLINOIS
Pollution Control Board
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph
Suite 11-500
Chicago, Illinois 60601
~c ~
Morton F. Dorothy, Complainant
Morton F. Dorothy
104 W University, SW Suite
Urbana IL 61801
217/384-1010
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDRECEMVED
CHAMPAIGN COUNTY,
ILLINOIS
CLERK’S OFFICE
MORTON F. DOROTHY,
)
)
Complainant,
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
an Illinois Corporation,
)
Respondent.
I, the undersigned, certify that, on the /~Q
day of July, 2005, I served the listed
documents, by first class mail, upon the listed persons:
STATEMENTS AND FOR ADMONISHMENT
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
JUL
222005
MORTON F. DOROTHY,
)
sr,m. op;~j..~
Complainant,
)
vs.
.
)
No. PCB 05-049
)
FLEX-N-GATE
CORPORATION,
an Illinois Corporation,
)
Respondent.
MOTION TO STRIKE UNSUPPORTED STATEMENTS AND FOR ADMONISHMENT
OF RESPONDENT
Complainant Morton F. Dorothy, moves that the Board strike false statements
made in motions, and to admonish Respondent Flex-N-Gate Corporation to stick to the
facts as developed in this case so far, and as reason states as follows:
1.
On July 8, 2005, respondent filed a Response to Complainant’s Motion for Partial
Summary Judgment as to Count I.
2.
Complainant has filed a Motion to Substitute Affidavits, and Substituted Affidavit,
which affidavit also supports this motion.
3.
Respondent made the following statements on p.12 ofthe Response:
a.
“Regarding the factual assertion that “respondent has now admitted, that
respondent is conducting hazardous waste treatment and storage
operations without a RCRA permit,” ... the Board must strike this assertion
because it is unsupported.”
b.
“The same is true of Complainant’s statement in paragraph 21 of his
Response to Motion for Summary Judgment that “respondent has
admitted that it is conducing hazardous waste treatment and storage
operations without a RCRA permit.”
4.
Respondent has made the following admission in response to discovery in this
case:
Flex-N-Gate admits that it is “a large quantity generator of hazardous
waste.” Flex-N-Gate admits that it treats some of its hazardous waste “on-
site in tanks,” but denies that it treats all of its hazardous waste “on-sitein
tanks.” Flex-N-Gate admits that it does not have “a RCRA permit or
interim status”. To the extent that Request to Admit No. 8 makes any
other statements of fact, Flex-N-Gate denies the same. (Request to
Admit, par. 6 and 8)
5.
The above admission was set forth in par. 3 of Complainant’s Motion for Partial
Summary Judgment.
6.
Complainant acknowledges that he omitted to specifically reference a sourcafor
the admissions concerning hazardous waste storage operations. These are
contained in the Affidavit of James Dodson that was attached as Exhibittio
Respondent’s Motion for Summary Judgment, to which motion Complainant was
responding:
a.
“Following dewatering, sludge is placed into a satellite accumulation
container in preparation for placement into 90-day accumulation
containers, where it is accumulated before it is shipped off-site for
recycling.” (Par. 9, Affidavit of James Dodson that was attached to Exhibit
C to RespondenVs Motion for Summary Judgment.)
b.
“The sludge that the Facility’s Wastewater Treatment Equipment
generates is a hazardous waste as defined in 35 III. Adm. Code §
721.103..” (Par. 15, Affidavit of James Dodson that was attached to Exhibit
C to Respondent’s Motion for Summary Judgment.)
7.
Complainant is at a loss to understand how respondent is able to admit thatitt
treating hazardous waste, storing hazardous waste and does not have a RCRA
permit, and still deny that it is “conducting hazardous waste treatment and
storage operations without a RCRA permit.”
WHEREFORE complainant prays:
That
the Board strike the following statements from p. 12 of Respondent’s
Response to Complainant’s Motion for Partial Summary Judgment as to Count I.
Regarding the factual assertion that “respondent has now admitted, that
respondent is conducting hazardous waste treatment and storage
operations without a RCRA permit,” ... the Board must strike this assertion
because it is unsupported.
The same is true of Complainant’s statement in paragraph 21 of his
Response to Motion for Summary Judgment that “respondent has
admitted that it is conducing hazardous waste treatment and storage
operations without a RCRA permit.
2.
That the Board admonish Respondent to cease denying facts that it has already
admitted in this case.
--~~
Morton F. Dorothy, Complainant
Morton F. Dorothy
104 West University
Southwest Suite
Urbana, IL 61801
217/384-1010
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~
CHAMPAIGN COUNTY, ILLINOIS
C~E~JX~ED
MORTON F. DOROTHY,
)
JUL 222005
)
STATE OF ILLINOIS
Complainant,
)
Pollution Control Board
)
vs.
.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
MOTION TO SUBSTITUTE AFFIDAVITS
Complainant Morton F. Dorothy, moves that the Board allow him to substitute
affidavits in support of his Motion for Partial Summary Judgment as to Count I and as
reason says as follows:
1.
On June 20, 2005, complainant served a Motion for Summary Judgment asto
Count I.
2.
On July 8, 2005, respondent Flex-N-Gate Corporation, filed a Motion to Strike
Affidavits Filed and Unsupported Statements Made in Support of Complainant’s
Summary Judgment Filings and Motion for Admonishment of Complainant.
3.
Complainant believes that the factual issues in this case are much toacomplex
to be tried by affidavit, and would prefer to see the Board deny all motions for
summary judgment, and turn the case back over to the Hearing Officer.
Complainant is, however, forced to engage in this war of affidavits.
4.
Rather than argue the sufficiency of the affidavit made in support of the Motion
for Partial Summary Judgment, complainant wishes to provide a more detailed
affidavit meeting the objections raised by respondent.
5.
Complainant has also objected to the lack of exhibits attached to the affidavit.
Complainant does not feel that it is necessary to attach copies of documents that
are already on file in this case.
a.
Complainant is an unemployed factory worker who uses coin-operated,
public copying machines. Making duplicative copies of documents in this
manner is extraordinarily time-consuming and expensive. To the extent
the Board may agree with the respondent that such duplicative copies are
required, complainant requests leave to dispense with them in this case.
WHEREFORE complainant prays that the Board grant leave to substitute
affidavits, and leave to dispense with exhibits which duplicate materials already filed in
this case.
PA~yt-~~~¶2 ~T)011.
Morton F. Dorothy, Complainant
State of Illinois
)
ss
County of Champaign
SUBSTITUTED AFFIDAVIT
Complainant Morton F. Dorothy makes the following substituted affidavit in
support of his motion for partial summary judgment as to Count I:
Respondent, Flex-N-Gate Corporation, is conducting hazardous waste treatment
operations at the Guardian West facility.
a.
Respondent has admitted that it “it treats some of its hazardous waste on-
site in tanks”. (Response to Request to Admit, par. 8).
b.
Respondent has also admitted that it: “claims exemption from the RCRA
permit requirement pursuant to 35 III. Adm. Code 703.123(a) and
722.134(a) with respect to one or more wastes generated by the Guardian
West facility”. (Response to Supplemental Request to Admit, par. 1)
Implicit within this admission is an admission that it is conducting
hazardous waste treatment or storage operations for which, but for that
exemption, it would be required to obtain a RCRA permit
c.
Complainant was told by respondent’s agents, in job-related training, in
the ordinary course of business, that respondent was conducting
hazardous waste treatment operations at the Guardian West facility.
2.
Respondent, Rex-N-Gate Corporation, is conducting hazardous waste storage
operations at the Guardian West facility.
a.
Following dewatering, sludge is placed into a satellite accumulation
container in preparation for placement into 90-day accumulation
containers, where it is accumulated before it is shipped off-site for
recycling. (Par. 9, Affidavit of James Dodson that was attached to Exhibit
C to Respondent’s Motion for Summary Judgment.)
b.
The sludge that the Facility’s Wastewater Treatment Equipment generates
is a hazardous waste as defined in 35111. Adm. Code § 721.103. (Par. 15,
Affidavit of James Dodson that was attached to Exhibit C to Respondents
Motion for Summary Judgment.)
c.
Complainant was told by respondent’s agents, in job-related training, in
the ordinary course of business, that respondent was conducting
hazardous waste storage operations at the Guardian West facility.
d.
Complainant has observed hazardous waste storage operations at the
facility, including hazardous waste in containers marked by respondent’s
agents as hazardous waste.
e.
In the course of his employment at the facility, complainant has placed
hazardous waste into containers, marked as “hazardous waste,” for
storage.
3.
Respondent does not have a RCRA permit or interim status for the Guardian
West facility.
a.
Respondent has admitted that it does “does not have ‘a RCRA permit or
interim status.”(Response to Request to Admit, par. 8)
b.
Respondent has also 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 or more wastes generated by the Guardian
West facility”. (Response to Supplemental Request to Admit, par. 1)
Implicit within this admission is an admission that it does not have a
RCRA permit.
4.
There is no genuine issue offact as to Count I.
a.
Complainant has examined the file in this case and found no relevant
information suggesting that the Board should do anything other than grant
summary judgment to Complainant as to Count I.
Morton F.
~
Dorothy,
ç
Complainant
The undersigned, a notary public in and for the aforesaid County and State,
certifies that the above person appeared before me and signed the foregoing document
on the 404h day of July, 2005,
“OFFICIAL SEAL”
Morton F. Dorothy
104 West University
Southwest Suite
Urbana, IL 61801
217/384-1010
RECEJVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDCLERKS OFFICE
CHAMPAIGN COUNTY, ILLINOIS
JUL
222005
MORTON F. DOROTHY,
)
PO~TO~~~d
Complainant,
)
vs.
.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
Respondent.
MOTION TO STRIKE UNSUPPORTED STATEMENTS AND FOR ADMONISHMENT
OF RESPONDENT
Complainant Morton F. Dorothy, moves that the Board strike false statements
made in motions, and to admonish Respondent Flex-N-Gate Corporation to stick to the
facts as developed in this case so far, and as reason states as follows:
1.
On July 8, 2005, respondent filed a Response to Complainant’s Motion for Partial
Summary Judgment as to Count I.
2.
Complainant has filed a Motion to Substitute Affidavits, and Substituted Affidavit,
which affidavit also supports this motion.
3.
Respondent made the following statements on p.12 of the Response:
a.
“Regarding the factual assertion that “respondent has now admitted, that
respondent is conducting hazardous waste treatment and storage
operations without a RCRA permit,” ... the Board must strike this assertion
because it is unsupported.”
b.
“The same is true of Complainant’s statement in paragraph 21 of his
Response to Motion for Summary Judgment that “respondent has
admitted that it is conducing hazardous waste treatment and storage
operations without a RCRA permit.”
4.
Respondent has made the following admission in response to discovery in this
case:
Flex-N-Gate admits that it is “a large quantity generator of hazardous
waste.” Flex-N-Gate admits that it treats some of its hazardous waste “on-
site in tanks,” but denies that it treats all of its hazardous waste “on-site in
tanks.” Flex-N-Gate admits that it does not have “a RCRA permit or
interim status”. To the extent that Request to Admit No. 8 makes any
other statements of fact, Flex-N-Gate denies the same. (Request to
Admit, par. 6 and 8)
5.
The above admission was set forth in par. 3 of Complainant’s Motion for Partial
Summary Judgment.
6.
Complainant acknowledges that he omitted to specifically reference a source for
the admissions concerning hazardous waste storage operations. These are
contained in the Affidavit of James Dodson that was attached as Exhibit C to
Respondent’s Motion for Summary Judgment, to which motion Complainant was
responding:
a.
“Following dewatering, sludge is placed into a satellite accumulation
container in preparation for placement into 90-day accumulation
containers, where it is accumulated before it is shipped off-site for
recycling.” (Par. 9, Affidavit of James Dodson that was attached to Exhibit
C to Respondent’s Motion for Summary Judgment.)
b.
“The sludge that the Facility’s Wastewater Treatment Equipment
generates is a hazardous waste as defined in 35 III. Adm. Code §
721.103..” (Par. 15, Affidavit of James Dodson that was attached to Exhibit
C to Respondents Motion for Summary Judgment.)
7.
Complainant is at a loss to understand how respondent is able to admit that it is
treating hazardous waste, storing hazardous waste and does not have a RCRA
permit, and still deny that it is “conducting hazardous waste treatment and
storage operations without a RCRA permit.”
WHEREFORE complainant prays:
That
the Board strike the following statements from p. 12 of Respondent’s
Response to Complainant’s Motion for Partial Summary Judgment as to Count I.
Regarding the factual assertion that “respondent has now admitted, that
respondent is conducting hazardous waste treatment and storage
operations without a RCRA permit,” ... the Board must strike this assertion
because it is unsupported.
The same is true of Complainants statement in paragraph 21 of his
Response to Motion for Summary Judgment that “respondent has
admitted that it is conducing hazardous waste treatment and storage
operations without a RCRA permit.
2.
That the Board admonish Respondent to cease denying facts that it hasairaady
admitted in this case.
~
Morton F. Dorothy, Complainant
Morton F. Dorothy
104 West University
Southwest Suite
Urbana, IL 61801
217/384-1010
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
JUL.
7
22005
MORTON F. DOROTHY,
)
STATE OF ILLINOIS
Pollution Control Board
Complainant,
)
vs.
.
)
No. PCB 05049
)
FLEX-N-GATE CORPORATION,
an Illinois Corporation,
)
Respondent.
)
MOTION TO SUBSTITUTE AFFIDAVITS
Complainant Morton F. Dorothy, moves that the Board allow him to substitute
affidavits in support of his Motion for Partial Summary Judgment as to Count I and as
reason says as follows:
1.
On June 20, 2005, complainant served a Motion for Summary Judgment as to
Count I.
2.
On July 8, 2005, respondent Flex-N-Gate Corporation, filed a Motion to Strike
Affidavits Filed and Unsupported Statements Made in Support of Complainant’s
Summary Judgment Filings and Motion for Admonishment of Complainant.
3.
Complainant believes that the factual issues in this case are much too complex
to be tried by affidavit, and would prefer to see the Board deny all motions for
summary judgment, and turn the case back over to the Hearing Officer.
Complainant is, however, forced to engage in this war of affidavits.
4.
Rather than argue the sufficiency of the affidavit made in support of the Motion
for Partial Summary Judgment, complainant wishes to provide a more detailed
affidavit meeting the objections raised by respondent.
5.
Complainant has also objected to the lack of exhibits attached to the affidavit.
Complainant does not feel that it is necessary to attach copies of documents that
are already on file in this case.
a.
Complainant is an unemployed factory worker who uses coin-operated,
public copying machines. Making duplicative copies of documents in this
manner is extraordinarily time-consuming and expensive. To the extent
the Board may agree with the respondent that such duplicative copies are
required, complainant requests leave to dispense with them in this case.
WHEREFORE complainant prays that the Board grant leave to substitute
affidavits, and leave to dispense with exhibits which duplicate materials already filed in
this case.
Morton F. Dorothy,
12
Complainant
Tip. ~
State of Illinois
)
)
ss
County of Champaign
SUBSTITUTED AFFIDAVIT
Complainant Morton F. Dorothy makes the following substituted affidavit in
support of his motion for partial summary judgment as to Count I:
Respondent, Flex-N-Gate Corporation, is conducting hazardous waste treatment
operations at the Guardian West facility.
a.
Respondent has admitted that it “it treats some of its hazardous waste on-
site in tanks”. (Response to Request to Admit, par. 8).
b.
Respondent has also admitted that it: “claims exemption from the RCRA
permit requirement pursuant to 35 III. Adm. Code 703.123(a) and
722.134(a) with respect to one or more wastes generated by the Guardian
West facility”. (Response to Supplemental Request to Admit, par. 1)
Implicit within this admission is an admission that it is conducting
hazardous waste treatment or storage operations for which, but for that
exemption, it would be required to obtain a RCRA permit
c.
Complainant was told by respondent’s agents, in job-related training, in
the ordinary course of business, that respondent was conducting
hazardous waste treatment operations at the Guardian West facility.
2.
Respondent, Flex-N-Gate Corporation, is conducting hazardous waste storage
operations at the Guardian West facility.
a.
Following dewatering, sludge is placed into a satellite accumulation
container in preparation for placement into 90-day accumulation
containers, where it is accumulated before it is shipped off-site for
recycling. (Par. 9, Affidavit of James Dodson that was attached to Exhibit
C to Respondent’s Motion for Summary Judgment.)
b.
The sludge that the Facility’s Wastewater Treatment Equipment generates
is a hazardous waste as defined in 35 III. Adm. Code § 721.103. (Par. 15,
Affidavit of James Dodson that was attached to Exhibit C to Respondents
Motion for Summary Judgment.)
c.
Complainant was told by respondent’s agents, in job-related training, in
the ordinary course of business, that respondent was conducting
hazardous waste storage operations at the Guardian West facility.
d.
Complainant has observed hazardous waste storage operations at the
facility, including hazardous waste in containers marked by respondent’s
agents as hazardous waste.
e.
In the course of his employment at the facility, complainant has placed
hazardous waste into containers, marked as “hazardous waste,” for
storage.
3.
Respondent does not have a RCRA permit or interim status for the Guardian
West facility.
a.
Respondent has admitted that it does “does not have ‘a RCRA permit or
interim status.”(Response to Request to Admit, par. 8)
b.
Respondent has also admitted that it: “claims exemption from the RCRA
permit requirement pursuant to 35 III. Adm. Code 703.123(a) and
722.134(a) with respect to one or more wastes generated by the Guardian
West facility”. (Response to Supplemental Request to Admit, par. 1)
Implicit within this admission is an admission that it does not have a
RCRA permit.
4.
There is no genuine issue of fact as to Count I.
a.
Complainant has examined the file in this case and found no relevant
information suggesting that the Board should do anything other than grant
summary judgment to Complainant as to Count I.
M ~ c.~
Morton F. Dorothy, Complainant
The undersigned, a notary public in and for the aforesaid County and State,
certifies that the above person appeared before me and signed the foregoing document
on the ~Th day of July, 2005,
_____
“OFFICIAL SEAL”
Morton F. Dorothy
104 West University
Southwest Suite
Urbana, IL 61801
217/384-1010
