THIS FILING SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB No. 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Carol Webb, Esq.
Clerk of the Board
Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
100 West Randolph Street
1021 North Grand Avenue East
Suite 11-500
Post Office Box 19274
Chicago, Illinois 60601
Springfield, Illinois 62794-9274
(VIA ELECTRONIC MAIL)
(VIA ELECTRONIC MAIL)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Illinois Pollution Control Board the following documents:
1.
Flex-N-Gate Corporation’s RESPONSE TO COMPLAINANT’S MOTION
TO SUBSTITUTE AFFIDAVITS;
2.
Flex-N-Gate Corporation’s RESPONSE TO COMPLAINANT’S MOTION
FOR LEAVE TO REPLY AND RESPONSE TO MOTION FOR LEAVE
TO REPLY; and,
3.
Flex-N-Gate Corporation’s RESPONSE TO COMPLAINANT’S MOTION
TO STRIKE UNSUPPORTED STATEMENTS AND FOR
ADMONISHMENT OF RESPONDENT.
copies of which are herewith served upon you.
Respectfully submitted,
FLEX-N-GATE CORPORATION,
Respondent,
Dated: July 28, 2005
By:/s/ Thomas G. Safley
One of Its Attorneys
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 28, 2005
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
RESPONSE TO COMPLAINANT’S MOTION TO SUBSTITUTE AFFIDAVITS;
RESPONSE TO COMPLAINANT’S MOTION FOR LEAVE TO REPLY AND
RESPONSE TO MOTION FOR LEAVE TO REPLY; and, RESPONSE TO
COMPLAINANT’S MOTION TO STRIKE UNSUPPORTED STATEMENTS AND
FOR ADMONISHMENT OF RESPONDENT, upon:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, Illinois 62794-9274
via electronic mail on July 28, 2005; and upon:
Mr. Morton F. Dorothy
104 West Universit y, SW Suite
Urbana, Illinois 61801
by depositing said documents in the United States Mail in Springfield, Illinois, postage
prepaid, on July 28, 2005.
/s/ Thomas G. Safley
Thomas G. Safley
GWST:003/Fil/NOF and COS – Responses to Affidavits, leave to file
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
C om pl ai n an t,
)
)
v.
)
PCB 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
RESPONSE TO COMPLAINANT’S MOTION TO SUBSTITUTE AFFIDAVITS
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and for its Response to
Complainant’s Motion to Substitute Affidavits, states as fo llows:
1.
On July 20, 2005, Complainant mailed his Motion to Substitute Affidavit s
to counsel for Flex-N-Gate. See
Complainant’s Certificate of Service, July 20, 2005.
2.
In paragraph three of his Motion to Substitute Affidavits, Complainant
states:
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 mot ions for summary judgment, and t urn the case back o ver to t he
Hearing Officer. Complainant is, however, forced to engage in this war of
affidavits .
Motion to Substitute Affidavits, at ¶3.
3.
In response to this statement, Flex-N-Gate states as follows.
4.
First, Flex-N-Gate disagrees that this case is being “tr ied by affidavit” or
that the parties are “engage[d] in [a] war of affidavits.” Flex-N-Gate moved for summary
judgment, and Complainant cross- moved for partial summary judgment. Each party
supported its Motion(s) for Summary Judgment in part with affidavits, as the Illinois
2
Pollution Control Board’s (“Board”) rules allow. Those affidavits are not submitted to
the Board for the purposes of “trying” the case, i.e., for the Board to pick between as it
would after a hearing. Rather, they were submitted to support each party’s position that
there is no genuine issue o f material fact as to certain elements of the claims at issue in
each Motion. The parties may disagree on some facts included in the affidavits, but that
does not mean that t hose facts are “material,” that a “genuine issue of material fact”
exists that would preclude summary judgment, or that the parties are “trying” this case
“by affidavit.”
5.
Second, for the reasons stated in Flex-N-Gate’s Motions for Summary
Judgment and Flex-N-Gate’s Response to Complainant’s Mot ion for Partial Summary
Judgment, Flex-N-Gate does not believe that “the factual issues in this case are . . .
complex” at all. As Flex-N-Gate has stated, under the law at issue – Illinois regulations
implementing the federal Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901,
et seq.
– whether or not a release of uncontained hydrogen sulfide gas occurred at Flex-
N-Gate’s facility is irrelevant. Thus, any “complexity” that might exist as to this question
does not matter for purposes o f deciding the parties’ Mot ions for Summary Judgment.
Flex-N-Gate also submits that the “factual issues” regarding its operations are not at all
“complex.” See
Flex-N-Gate’s Motions for Summary Judgment.
6.
Third, even if the facts of this matter were “complex,” like a Court, the
Board does not deny mot ions for summary judgment because t he factual issues before it
are “complex.” Rather, like a Court, the Board only denies motions for summary
judgment when there is (1) a genuine issue as to a fact t hat is material to the claim at
issue, or (2) even if there is no such genuine issue, the moving party is not entitled to
3
judgment as a matter of law. Cassens and Sons, Inc. v. Illinois EPA , PCB No. 01-102,
2004 Ill. ENV LEXIS 635, at **11-12 (Ill.Pol.Control.Bd. Nov. 18, 2004) (“Summary
judgment is appropriate when the pleadings, depositions, admissions on file, and
affida vits disclose that there is no genuine issue as to any material fact and t he moving
party is ent it led to judgment as a matter of law.”) (cit ing Dowd & Dowd, Ltd. v. Gleas
,
on
181 Ill. 2d 460, 483, 693 N.E.2d 358, 370 (1998)); accord
, 35 Ill. Admin. Code §
101.516(b).
7.
Put another way, facts can be simple, but in question, or complicated, but
without question. Whether there is a question as to a material fact is what matters, not
whether the facts are “complex.” Thus, to determine whether a hearing is necessary, the
Board by definit io n must (1) identify the elements of the claims t hat Complainant
brought against Flex-N-Gate, and (2) as to those elements that Flex-N-Gate has argued
Complainant cannot prove, assess (a) whether there is an issue of fact, and (b) if so,
whether t he fact at issue is material. If there is no genuine issue of material fact – that is,
if the Board concludes that Complainant cannot prove one or more elements of a c laim –
then a hearing as to that claim is a waste of time, because it will add not hing for the
Board to consider, and summary judgment is proper.
8.
Fourth, Flex-N-Gate disagrees that the facts of this or any other case are so
“complex” that the Board must throw up its hands and “turn the case back over to the
Hearing Officer” rather than decide mot ions for summary judgment on t heir merits. The
Board deals every day wit h co mplex factual issues and complex legal issues. The Board
is more than capable of deciding the parties’ Mot ions for Summary Judgment.
4
9.
In paragraph five of his Motion to Substitute Affidavits, Complainant
states:
[Respondent] 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. . . . Making duplicative copies of documents in
this manner is extraordinarily time-consuming and expensive. To the extent the
Board may agree with respondent that such duplicative copies are required,
complainant requests leave to dispense with them in this case.
Motion to Substitute Affidavits at ¶¶4, 4.a.
10.
Likewise, in his Mot ion for Leave to Reply and Response to Motion for
Leave to Reply, Complainant states:
Respondent cites Illinois Supreme Court Rule 191(a) in support for its
argument that copies o f documents must be attached to affidavit s.
Complainant believes that this is referr ing to documents other than t hose
already on file in the instant case. Complainant does not feel that it is
necessary to attach copies of documents that are already on file in this
case.
Motion for Leave to Reply at ¶7.
11.
Illinois Supreme Court Rule 191(a) provides in relevant part that
“[a] ffidavits in support of and in opposit ion to a motion for summary judgment . . .
shall have attached thereto sworn or certified copies of all papers upon which the affiant
relies.” Ill. S. Ct. R. 191(a). (Emphasis added.)
12.
Flex-N-Gate acknowledges that there are limited circumstances in which
courts have held that it is proper to consider “sworn or certified copies” of documents
which are not attached to an affidavit filed in suppo rt of a mot ion for summary judgment,
but ot herwise are properly before the court, when deciding a mot ion for summary
judgment. For example, in North Am. Old Roman Catholic Church v. Bernadette
, the
Court stated:
5
Defendant claims that exhibits three and four were improper ly before the
trial court because they were not sworn or certified in accordance with
Rule 191. . . . A copy of each of these letters was also attached to the
Church's verified complaint. The verified complaint was already on file.
The complaint was verified by Archbishop Rematt, the author and
signatory of the letters. . . . Since it appears that Archbishop Rematt would
be competent to swear to the letters’ authenticity
if called as a witness and
the letters were attached to the verified complaint
which Archbishop
Rematt signed under oa
,
thwe
hold that exhibits three and four were
properly considered by the trial court in granting summary judgment.
627 N.E.2d 1094, at 1099 (1st Dist. 1992). (Emphasis added.)
13.
That is, while there may be situat ions in which a decisio n- making bod y
may decide t hat compliance w it h t he “attachment” requirement of Rule 191(a) may be
excused, that does not mean that compliance with the requirement of Rule 191(a) that
documents be “sworn or certified” also is excused.
14.
Flex-N-Gate has not advocated and does not advocate the repeated filing
of “duplicat ive copies” of a document that already is properly before the Board, and the
Board can take official notice that Flex-N-Gate, in filings in this case, has itself referred
to documents which it previously filed in support of other filings in this case.
15.
In this situat ion, however, Complainant has not (a) identified to which
documents he refers, or (b) even argued, much less established, that these documents
(whatever they are) are properly “sworn or certified” in accordance with Rule 191(a).
See
Flex-N-Gate’s Motion to Strike Affidavits Filed and Unsupported Statements Made
in Support o f Co mplainant’s Su mmary Judgment Filings and Motion for Admo nishment
of Complainant, detailing specific instances in which Co mplainant has referenced
documents or “infor mation” in his affidavits wit hout ident ifying the documents or
“infor mat ion” to which he refers.
6
16.
Accordingly, neither Flex-N-Gate nor the Board can consider (1) whether
Complainant is “competent to swear to the [documents’] authenticit y,” (2) whether the
documents are attached to a verified filing made under oath or otherwise are “sworn or
certified” in compliance with Rule 191(a), or (3) whether, in fact, whatever documents
Complainant refers to actually are “already on file.”
17.
Further, it appears that in at least some instances, the documents to which
Complainant means to refer in his affidavits are discovery requests and responses to those
requests. However, under Section 101.302(i) of the Board’s rules, “[n]o written
discovery, including interrogatories, requests to produce, and requests for admission, or
any response to writt en discovery, may be filed with the Clerk of the Board except upon
leave or direction of the Board or hearing officer.” 35 Ill. Admin. Code § 101.302(i).
Accord ingly, these documents would not be before t he Board for considerat ion, even if
they met the other requirements discussed above.
18.
Thus, while in some situat ions a decision-making body may decide that
the “attachment” requirement of Supreme Court Rule 191(a) is satisfied by reference to a
sworn or certified document previously filed in a case, Flex-N-Gate does not believe that
Rule 191(a) is satisfied where the document to which an affidavit refers (a) is not even
identified, (b) is not shown to be capable of being sworn to by the affiant, and (c) is not
attached to a verified filing made under oath or otherwise properly “sworn or certified” as
Rule 191(a) requires.
19.
“The burden is upon the movant to clearly state the reasons for and the
grounds upon which a mot ion is made, [and] to timely file and adequately supaport
motion directed to the Board.” Goose Lake Ass’n v. Robert J. Drake, Sr., First Nat’l
7
Bank of Joliet as Trustee, Trust No. 370 , PCB No. 90-170, 1991 Ill. ENV LEXIS 432, at
** 1-2 (Ill.Pol.Control.Bd. June 6, 1991). (Emphasis added.)
20.
For the reasons stated in Flex-N-Gate’s Motion to Strike and Admonish,
Flex-N-Gate does not believe that Complainant has adequately supported his filings in
this case.
21.
For these reasons, Flex-N-Gate continues in its objection to Complainant’s
Affidavit s to the extent that they cite to documents which are not ident ified and/or cite to
documents without demonstrating that Complainant can swear to the t ruth o f the
documents or that the documents are properly “sworn or certified.”
22.
Flex-N-Gate makes no further response to Complainant’s Motion to
Substitute Affidavits.
Respectfully submitted,
FLEX-N-GATE CORPORATION
R
e
s
p
o
n
d
e
n
t
,
Dated: July 28, 2005
By:/s/ Thomas G. Safley
One of Its Attorneys
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:003/Fil/Response to Motion to Substitute Affidavits
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
C om pl ai n an t,
)
)
v.
)
PCB 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
RESPONSE TO COMPLAINANT’S MOTION FOR LEAVE
TO REPLY AND RESPONSE TO MOTION FOR LEAVE TO REPLY
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and for its Response to
Complainant’s Mot ion for Leave t o Reply and Response to Motion for Leave t o Reply
(“Motion for Leave to Reply”), states as follows:
1.
On July 18, 2005, Complainant mailed his Motion for Leave to Reply to
counsel for Flex-N-Gate. See
Complainant’s Certificate of Service, July 18, 2005.
2.
In paragraph 4.a. of his Motion for Leave to Reply, Complainant states:
Respondent has, in the Response, denied the truth of facts which it has
admitt ed in discover y and in affidavit s attached to its mot ions, which facts
Complainant regarded as established beyond doubt at the time he filed his
mot ion .
Motion for Leave to Reply at ¶2.
3.
Complainant makes this same argument in his Motio n to Strike
Unsupported Statements and for Admonishment of Respondent (“Motion to Strike”). See
Complainant’s Mot ion to Strike.
4.
Flex-N-Gate responds to this argument in its Respo nse to Complainant’s
Motion to Strike.
2
5.
In paragraph seven of his Motion for Leave to Reply, Complainant states:
Respondent cites Illinois Supreme Court Rule 191(a) in support for its
argument that copies o f documents must be attached to affidavit s.
Complainant believes that this is referr ing to documents other than t hose
already on file in the instant case. Complainant does not feel that it is
necessary to attach copies of documents that are already on file in this
case.
Motion for Leave to Reply at ¶7.
6.
Complainant makes this same argument in paragraph five of his Motion to
Substitute Affidavits. See
Complainant’s Motion to Substitute Affidavits, at ¶5.
7.
Flex-N-Gate responds to this argument in its Respo nse to Complainant’s
Motion to Substitute Affidavits.
8.
Flex-N-Gate makes no further response to Complainant’s Mot ion for
Leave to Reply.
Respectfully submitted,
FLEX-N-GATE CORPORATION
R
e
s
p
o
n
d
e
n
t
,
Dated: July 28, 2005
By:/s/ Thomas G. Safley
One of Its Attorneys
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:003/Fil/Response to Motion for Leave to Reply and Response to Motion for Leave to Reply
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
C om pl ai n an t,
)
)
v.
)
PCB 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
RESPONSE TO COMPLAINANT’S
MOTION TO STRIKE UNSUPPORTED
STATEMENTS AND FOR ADMONISHMENT OF RESPONDENT
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and for its Response to
Complainant’s Mot ion to Strike Unsupported Statements and for Admonishment of
Respondent (“Complainant’s Mot ion to Strike and for Admo nishment”), states as
follows:
1.
On July 20, 2005, Complainant mailed his Motion to Strike and for
Admo nishment to counsel for Flex-N-Gate. SeCoemplainant’s
Certificate of Service,
July 20, 2005.
2.
It appears to Flex-N-Gate that the parties may have a misunderstanding of
semantics w hich has created confusion a nd has led to Complainant’s Motion to Strike
and for Admonishment.
3.
Complainant has alleged in various filings that Flex-N-Gate “treats” and
“stores” hazardous waste. See
Complainant’s Motio n to Strike a nd for Admonishment;
Complainant’s Motion for Partial Summary Judgment as to Count I, at 2.
2
4.
Complainant also has argued that Flex-N-Gate is “conducting hazardous
waste treatment and storage operations” and has moved the Illinois Pollution Control
Board (“Board”) to “find that respondent Flex-N-Gate Corporation is operating a
hazardous waste treatment and storage facility.” Id.
5.
On the issue of “treatment,” Flex-N-Gate has admitted that, as a generator,
it “treats” hazardous waste, as generators of hazardous waste are permitted to do under
the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901,
et seq
. (“RCRA”). See
Flex-N-Gate’s Motion to Strike Affidavits Filed and Unsupported Statements Made in
Support of Complainant’s Su mmary Judgment Filings and Mot ion for Admonishment of
Complainant (“Flex-N-Gate’s Motion to Strike and Admonish”), at ¶¶17-18.
6.
However, Flex-N-Gate has argued (1) that “whether or not Flex-N-Gate
‘is conduct ing hazardous waste treatment and storage operations’ at the facilit y is not a
fact, it is a legal conclusio n, which is inappropriate for an affida vit”; and (2) t hat even if
it was a fact, Complainant’s allegation that Flex-N-Gate “is conducting hazardous waste
treatment and storage operations” is conclusor y.
at
Id.¶¶15-16.
7.
Complainant apparently views these positions expressed by Flex-N-Gate
as incompatible, stating:
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 o perations without a RCRA per mit.”
Complainant’s Motion to Strike a nd for Admonishment at ¶7.
8.
Based on his perception that these positions are incompatible,
Complainant moves the Board to strike certain statements from Flex-N-Gate’s Response
3
to Complainant’s Motion for Partial Su mmary Judg ment as to Count I, and to “admo nish
Respondent to cease denying facts that it has already admitted in this case.”
Complainant’s Motion to Strike and for Admonishment at 2-3.
9.
In fact, however, Flex-N-Gate’s statements are perfectly compatible,
because Flex-N-Gate understands the question of whether it “treats” hazardous waste to
be dist inct fro m the question o f whether it is conducting “treatment operations” or
operating a “treatment facilit y.”
10.
That is, Flex-N-Gate understands the terms “treatment operations” and
“treatment facility” under RCRA to apply only to a Treatment Storage and Disposal
Facility (“TSDF”) operating under 35 Ill. Admin. Code Parts 724 and 725, to which a
generator of hazardous waste sends that hazardous waste for treatment, not to a generator
that is treating hazardous waste that it is accumulating under 35 Ill. Admin. Code §
722.134 or another exemption to the RCRA permitting requirement.
11.
Thus, as discussed in Flex-N-Gate’s Motion to Strike and Admonish at
¶¶17-18, a generator of hazardous waste may treat hazardous waste that it is
accumulating prior to off-site treatment, storage, or disposal, and still be considered a
“generator” operating under 35 Ill. Admin. Code Part 722, Standards Applicable to
Generators of Hazardous Waste, and not a TSDF operating under 35 Ill. Admin. Code
Part 724 or 725, Standards [or Interim Standards] for Owners and Operators of
Hazardous Waste Treatment, Storage, and Disposal Facilit.ies
12.
Thus, when Complainant alleges that Flex-N-Gate is conducting
“treatment operations” and asks the Board to find that Flex-N-Gate is operating a
“treatment facility,” Flex-N-Gate understands Complainant to be arguing that Flex-N-
4
Gate meets the legal definit ion of a TSDF regulated by 35 Ill. Admin. Code Part 724 or
725, and is not a “generator” of hazardous waste governed by 35 Ill. Admin. Code Part
722. Flex-N-Gate disagrees with this argument and thus denies that it is conducting
“treatment operations” or that its facilit y is a “treatment facilit y.”
13.
Similarly, as to the question of whether Flex-N-Gate “stores” hazardous
waste, Complainant in his Mot ion to Strike a nd for Admonishment acknow ledges t hat he
previously did not cite any support for this assertion, and now cites to an Affidavit filed
by Flex-N-Gate in which Flex-N-Gate states that it places sludge from its wastewater
treatment process “into a satellite accumulatconionta
iner in preparation for placement
into 90-day accumulation
conta iners, where it is accumulatedbefore it is shipped o ff-site
for recycling.” Motion to Strike and for Admonishment at ¶¶6, 6.a. (Emphasis added.)
14.
Thus, Complainant apparently takes the position that when a generator
“accumulates” hazardous waste pursuant to 35 Ill. Admin. Code § 722.134, the generator
is “storing” hazardous waste.
15.
Flex-N-Gate does not equate “accumulation” by a generator of hazardous
waste with “storage” of hazardous waste. Rather, Flex-N-Gate understands
“accumulation” to be performed by generators of hazardous waste under Section 722.134
(which is t it led “Accumulat iTonime”)
and “storage” to be performed by TSDF facilities
under Parts 724 and 725.
16.
Thus, when Complainant alleges that Flex-N-Gate “stores” hazardous
waste and is conducting “storage operations,” and asks the Board to find that Flex-N-
Gate is operating a “storage facility,” Flex-N-Gate again understands Complainant to be
arguing that Flex-N-Gate meets the legal definit ion of a TSDF regulated by 35 Ill.
5
Admin. Code Part 724 or 725, and is not a “generator” of hazardous waste governed by
35 Ill. Admin. Code Part 722.
17.
Thus, while Flex-N-Gate has admitted, and admits, that it “accumulates”
hazardous waste under Section 722.134(a), Flex-N-Gate has never agreed, and does not
agree, that it “stores” hazardous waste. Thus, Flex-N-Gate does not agree that it is
conducting “storage operations” or operating a “storage facility.”
18.
In conclusion, to be clear, Flex-N-Gate admits that it “treats” hazardous
waste and that it “accumulates” hazardous waste, and Flex-N-Gate’s understanding is that
it does these things as a “generator” of hazardous waste. Flex-N-Gate disagrees,
however, with any assertion that it is conduct ing “treatment” or “storage operations,” or
operating a “treatment” or “storage facility” that is governed by 35 Ill. Admin. Code Part
724 or 725.
19.
In light of the above, it is apparent that Flex-N-Gate has not made the
“admissions” which Complainant contends Flex-N-Gate has made and now contradicted,
but rather, that Complainant misunderstood Flex-N-Gate’s statements because
Complainant and Flex-N-Gate had different understandings of the meaning of certain
terms under RCRA, as set forth above.
20.
Therefore, Flex-N-Gate’s statements in this case are not inconsistent, and
no reason exists to strike any statements from Flex-N-Gate’s filings or to admonish Flex-
N-Gate.
WHEREFORE, for the reasons stated above, Respondent, FLEX-N-GATE
CORPORATION, respectfully prays that the Illinois Pollution Control Board deny
6
Complainant’s Mot ion to Strike Unsupported Statements and for Admonishment of
Respondent and award FLEX-N-GATE CORPORATION such other relief as the Illinois
Pollution Contro l Board deems just.
Respectfully submitted,
FLEX-N-GATE CORPORATION
R
e
s
p
o
n
d
e
n
t
,
Dated: July 28, 2005
By:/s/ Thomas G. Safley
One of Its Attorneys
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:003/Fil/Response to Motion to Strike and for Admonishment