RECEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARDCLEr*c’s OFFICE

CHAMPAIGN COUNTY, ILLINOIS

JUL 2? 20(35

MORTON F. DOROTHY,

)

STATE OF ILLINOIS

)

Pollution Control Board

Complainant,

)

vs.

)

No. PCB 05-049

)

FLEX-N-GATE CORPORATION,

an Illinois Corporation,

)

Respondent.

RESPONSE TO MOTION TO STRIKE AFFIDAVITS FILED AND UNSUPPORTED

STATEMENTS MADE IN SUPPORT OF COMPLAINANT’S SUMMARY JUDGMENT

FILINGS AND MOTION FOR ADMONISHMENT OF COMPLAINANT

Complainant Morton F. Dorothy, makes the following response to the Motion to

Strike Affidavits Filed and Unsupported Statements Made in Support of Complainant’s

Summary Judgment Filings and Motion for Admonishment of Complainant filed by

Respondent Flex-N-Gate Corporation on July 8, 2005:

On May 27, 2005, Respondent filed two motions for summary judgment.

On June 24, 2005, Complainant served responses to the motions for summary

judgment, including an Affidavit in Support of Responses to Motions for

Summary Judgment.

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.

On July 20, 2005, Complainant served a Motion to Substitute Affidavits with

respect to Complainant’s Motion for Partial Summary Judgment.

Complainant is also filing a Second Motion to Substitute Affidavits with respect to

Complainant’s affidavit in support of his responses to Respondent’s motions for

summary judgment.

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.

Respondent has cited Supreme Court Rule 191(a) as to the content of affidavits.

This rule does not on its face apply to citizen’s enforcement actions under the

Environmental Protection Act.

This case is a citizen’s enforcement action under the Environmental Protection

Act. Complainant observed a violation of the Act and Board regulations mainly

protecting worker safety at hazardous waste facilities.

Complainant is acting on behalf of the People of the State in bringing the

violations he witnessed before the Board, and is entitled to a hearing

under the Environmental Protection Act.

Many of Respondent’s objections center on the absence of qualified

expert witnesses. Complainant does not have a budget for expert

witnesses. Although Complainant happens to be a qualified expert

witness in many of the areas under dispute, there is no basis under the

Act or Board rules to deny Complainant a hearing on the basis that he

does not have a budget for expert witnesses. Nor is there a provision

allowing the Board to tax the costs of expert witnesses on Respondent.

Complainant intends at this time to take this mailer to hearing based only

on his own testimony, documentary evidence, and testimony from

Respondent’s employees. Although Respondent is free to question the

degree of Complainant’s expertise in various areas at hearing, this goes

to the weight of the evidence. The Complainant cannot, under the Act, be

barred from testifying at hearing on the grounds that he might not be an

expert witness in certain areas.

Respondent has chosen to file motions for summary judgment.

Complainant has attempted to answer those motions. Granting summary

judgment on the basis of the lack of qualified expert opinion in

Complainant’s affidavits would have the effect of denying Complainant a

hearing on his complaint, in violation of Section 31(d) of the Act.

Although Respondent is claiming that Complainant’s opinions and conclusions

cannot be proved by affidavit, Respondent has filed motions for summary

judgment that are also based on opinion and conclusions. For example:

On p. 8 of the Motion for Summary Judgment (p. 2 of the Motion for

Partial Summary Judgment), Respondent is arguing that only a “small

quantity of sulfuric acid” was released to the plating room floor, but is

objecting to Complainant’s “opinion” or “conclusion” to the contrary, even

though Complainant witnessed the immediate aftermath of the spill.

(Motion to Strike Affidavits, Par. 24(m -s))

Also on p. 8 of the Motion for Summary Judgment (p. 2 of the Motion for

Partial Summary Judgment), Respondent is denying that a release of

hydrogen sulfide gas “could have occurred or did occur”, but is objecting

to Complainant’s “opinion” or “conclusion” to the contrary, even though

Complainant witnessed the release of hydrogen sulfide. (Motion to Strike

Affidavits, Par. 24(m -s))

10.

Respondent has supported its Motion for Partial Summary Judgment with the

affidavit of Denny Corbett, a person who has repeatedly made false statements

in connection with the incident that is the subject of this case. (Motion for Partial

Summary Judgment, Exhibit A.) Although Respondent relies on his affidavit,

Respondent has declined in discovery to list Denny Corbett as a witness it

intends to call (Answers to Complainant’s Interrogatories, par. 1), and argues

that Complainant cannot impeach his credibility through affidavits. (Motion to

Strike Affidavits, par. 24(u), 52)

Among the false statements made by Denny Corbett was the following:

“We did have a pipe break in our plating department, which contained a

diluted acid content.” (Fax to Peggy A. Zweber, OSHA, 9/14/05, Request

for Production of Documents, No. 12.) A second, related, false statement

was: “We did have a break in one S the discharge pipes in the chrome

plating tank #8 which was a diluted sulfuric acid content...” (Memorandum

to Guardian West employees dated

9/14(?)/04,

posted in response to an

OSHA complaint, Request for Production of Documents, No. 12.)

The break was in the pipe used to fill tank 8 with concentrated

sulfuric acid, not the discharge pipe, which is used to drain diluted

acid from the tank to the floor.

ii.

Respondent has failed to disclose in discovery any report or other

document that was available to Denny Corbett at the time he made

the above statement that would have given him any basis for the

quoted statements. Request for Production #8 requested: “Any

written accounts of the incident on third shift, August 4-5, 2004,

produced by or for respondent.”

iii.

Indeed, the account of the incident given by Tony Rice, Plating

Manager, at the same time as the statement of Denny Corbett

stated that the release came from the line used to fill Tank 8 with

concentrated sulfuric acid. (Statement of Anthony Rice, dated

September 14, 2005, Request for Production of Documents, No. 8.)

iv.

The affidavit of Denny Corbett that is attached to the Motion for

Partial Summary Judgment now contradicts his earlier statements

to OSHA:

(1)

“LA

pipe in the Facility that carries a solution of

approximately 93 concentrated sulfuric acid/ 7 water

separated at a fitting...” (Motion for Partial Summary

Judgment, Exhibit A, par 3)

Denny Corbett has also made other false statements, the discussion of

which Complainant will omit from this response. (See Second Motion to

Substitute Affidavits, par 12(b)).

11.

Respondent is somehow arguing that the fact that Denny Corbett’s lies were

made in his reports to OSHA, and were therefore criminal in nature, somehow

makes them off limits to discussion in this case.

Complainant believes that the fact that an affiant and potential witness

has engaged in criminal activities involving false statements is exactly: the

sort of information the Board needs to know in evaluating the credibility of

the person.

12.

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 some of the objections raised by respondent.

Although Complainant is a qualified expert in many ofthese areas,

Complainant will not attempt to qualify himself, resting on the position that,

as the complainant, he is not subject to such “qualification”.

13.

Respondent has raised a number of technical objections to the affidavitsuffered

by Complainant. It would be possible for the Complainant to make similar

objections to Respondent’s affidavits, but does not wish to further vex the Board.

14.

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.

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 deny Respondent’s Motion to

Strike Affidavits Filed .And Unsupported Statements Made in Support of Complainant’s

Summary Judgment Filings And Motion For Admonishment of Complainant, and grant

leave to dispense with exhibits which duplicate materials already filed in this case.

r’-’co~3 \—‘iT~)0

Morton F. Dorothy, Complainant

Morton F. Dorothy’

104W. University, SW Suite

Urbana IL 61801

217/384-1010

BEFORE THE ILLINOIS POLLUTION CONTROL

CHAMPAIGN COUNTY, ILLINOIS

JUL 2 8 2.005

MORTON F. DOROTHY,

)

STATE OF ILLINOIS

Pollution Control Board

Complainant,

)

vs.

)

No. PCB 05-049

)

FLEX-N-GATE CORPORATION,

an Illinois Corporation,

)

Respondent.

SECOND MOTION TO SUBSTITUTE AFFIDAVITS

Complainant Morton F. Dorothy, moves that the Board allow him to substitute

affidavits in support of his Responses to Respondent’s Motions for Summary Judgment,

and as reason says as follows:

On May 27, 2005, Respondent filed two motions for summary judgment.

On June 24, 2005, Complainant served responses to the motions for summary

judgment, including an Affidavit in Support of Responses to Motions for

Summary Judgment.

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.

Complainant has filed a separate response to that Motion to Strike Affidavits.

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.

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 some of the objections raised by respondent.

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.

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, Complainant

State of Illinois

County of Champaigp

SUBSTITUTED AFFIDAVIT IN SUPPORT OF RESPONSES TO MOTIONS FOR

SUMMARY JUDGMENT

Complainant Morton F. Dorothy makes the following substituted affidavit in

support of his responses to the motions for summary judgment in this case:

Respondent has not yet amended its contingency plan to address this type of

accident. This case therefore represents continuing, intentional violation of Board

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

On August 28, 2004, Complainant filed a Freedom of Information Act

request with The Champaign County Emergency Services and Disaster

Agency (ESDA), which is a normal recipient of the Guardian West

conting~ncyplans. Examination of the contingency plan filed with ESDA

showed no amendment since August 5, 2004.

Complainant has corresponded with ESDA concerning the contingency

plan for the Guardian West facility. According to ESDA, as of November 8,

2004, Respondent had not filed an amended contingency plan with

ESDA. (Exhibit A)

In response to Complainant’s Interrogatory 30, Respondent made the

following statement: “Since August 4-5, 2004, Flex-N-Gate has amended

its Contingency Plan, but not in response to the incident of that date.”

Respondent has been in continuous violation of the Board regulations

requiring amendment of the contingency plan in response to the hydrogen

sulfide release incident since the date of that incident.

On August 20, 2004, Complainant notified Tanvir Ali, Plant Manager at

Guardian West, of the need to amend the contingency plan.

The failure to amend the contingency plan has, at least since August 20,

2004, been an intentional violation of Board rules.

The complaint in this case is a “softball” which complainant deliberately restricted

to violations relevant to a specific incident which could be easily fixed by

amending the contingency plan and improving the operating practices in the

sump area, thereby protecting the lives of people who work in this factory, as

well as fire fighters who need to be officially warned of a hydrogen sulfide hazard

so they can plan for this contingency. The most expensive item would be safety

equipment needed to deal with a future hydrogen sulfide emergency, which

equipment would cost about $2,000.

The contingency plan needs to be amended to specifically address the

possibility of a hydrogen sulfide release.

A meter capable of measuring hydrogen sulfide needs to be available.

Such meters are available on-line for less than $700. (Ex B)

Respirators offering protection against hydrogen sulfide need to be

available.

Such respirators are available on-line for $21.95 (Ex C.)

The sludge and accumulated debris needs to be removed from the area

under the plating line, so that spilled liquids are free to flow quickly toward

the pumps.

The facility actually had the required safety equipment on hand, but Denny

Corbett, the safety manager, failed or refused to produce the equipment during

the incident. With the needed equipment already on hand, the cost of

compliance is virtually nil. By filing these hooligan motions, respondent is

seeking to delay this action, recklessly endangering lives for no economic

purpose whatsoever.

Denny Corbett was the safety manager for the Guardian West facility.

Denny Corbett was present during the incident. (Request for Production of

Documents, No. 8, Denny Corbett, e-mail to Tanvir, Jackie & Tony, Dated

August 5, 2004, 7:36 am.)

Respondent has admitted that, during the incident, the safety officer

present stated to Complainant that he “did not know whether a hydrogen

sulfide probe was present at the facility”. (Answer, par. 24)

Respondent has admitted that, during the incident, the facility actually had

meters available to measure hydrogen sulfide levels, and had respirators

approved for use with hydrogen sulfide available. (Responses to

lnterrogatories 18 and 19).

The filing of these motions has delayed this case. (Hearing Officer Order

of June 2, 2005)

The delay occasioned by these motions was reasonably foreseeable.

The motions for summary judgment repeat legal arguments already made

to the Board in the Motion to Dismiss, and do not depend on any new

facts adçluced in discovery.

Because the Board denied the motion to dismiss, Respondent had no

reasonable basis to believe that the motions for summary judgment would

be granted.

The only possible purpose of filing the motions for summary judgment was

to delay this case.

The contingency plan was deficient ab initio, in ways completely independent of

the incident alleged in the complaint.

Respondent has argued, in the motions for summary judgment, that the

contingency plan did not apply to incidents on the plating room floor,

because that area was part of a “wastewater treatment unit’, which

Responçlent argues is exempt from RCRA, and therefore, Respondent

further argues, not subject to the contingency plan requirement.

Complainant has examined the contingency plan and has determined that

the contingency plan itself draws no such distinctions. In particular, it does

not identify the plating room floor as part of a “wastewater treatment unit”,

and does not specify alternative actions are to be taken in the event of a

spill or release in that area.

Section 725.152 requires that the contingency plan “describe the actions

facility personnel must take to comply with Sections 725.151 and 725.156

in response to fires, explosions, or any unplanned sudden or non-sudden

release of hazardous waste or hazardous waste constituents to air, soil, or

surface water at the facility.”

If Respondent’s legal arguments are to be believed, Respondent drafted a

contingency plan describing steps the steps to be taken in the event of a

spill on the plating room floor, which steps it did not intend to take.

The contingency plan therefore violated Section 725.152, in that it did not

describe the actions Respondent intended to take.

Although a part of the floor is sometimes hosed down each shift, the hosing is

done around the periphery, towards the tanks. Under the tanks and catwalk

there is an accumulation of sludge and contaminated debris, in addition to the

hose water and spilled liquids from the tanks. The sludge and contaminated

debris is not, and cannot be, pumped to the wastewater treatment unit. The

sludge and contaminated debris is hazardous waste. The sludge and

contaminated debris was not removed from the plating room floor between

November 2002 and August 2004.

The contaminated debris on the plating room floor includes contaminated

4x4 wood blocks that were used in recovering racks from crashes, which

wooden blocks could not possibly be pumped through the lines to

wastewater.

Based on Complainant’s experience on the plating room floor, the pumps

on the plating room floor jam when they receive large quantities of sludge

quickly, and have to be cleared.

Based on Complainant’s experience on the plating room floor, the volume

of water necessary to wash the accumulated sludge to wastewater would

be such that wastewaterwould be unable to handle the flow, and the

additional treatment costs for wastewater would be excessive.

Based on Complainant’s experience on the plating room floor, it would be

necessary to shovel the sludge and debris out from under the plating line.

The material under the plating line is chromium contaminated plating

waste, which is a hazardous waste for that reason alone.

Complainant has been told, by Respondent’s agents, in the ordinary

course of business, that the waste under the plating line is hazardous

waste.

The sludge and contaminated debris on the plating room floor impedes the flow

of liquids to the pits, so that liquid ponds in areas, slowly percolating through the

sludge toward the pits. The movement of liquid on the plating room floor is so

slow that large amounts of liquid remain even after the line has been shut down

for more than 2 weeks.

The longest tithe that liquid normally remains on the floor is measured in weeks.

The sulfide that was the source of the release may have been produced by

chemical or biological reactions in the sludge and debris, and accumulated

liquids, that were allowed to stand far longer than the facility was designed for.

Complainant was present and observed that hydrogen sulfide was

produced when sulfuric acid was spilled onto the plating room floor.

Because the sulfuric acid used at Guardian West did not exhibit the odor

of hydrogen sulfide, it could not have contained sulfide, which would have

been rapidly emitted from a highly acidic solvent.

Because the sulfide did not come from the sulfuric acid, it must have

come from sulfide on the floor.

Based on the observed facts, Complainant believes that the sulfide may

have been produced by chemical or biological reactions in the waste

which has been allowed to accumulate on the floor for years.

Complainant has a B.S. in chemistry from the University of Illinois.

Complainant has prepared hydrogen sulfide on numerous occasions, and

is familiar with its odor and properties. Complainant was employed as a

lab tech at Guardian West, and frequently handled the sulfuric acid used

in that plant.

Respondent presents an account of the acid spill that attempts to minimize the

amount and concentration ofthe acid spilled. This is not consistent with what

complainant observed as a witness to the immediate aftermath of the spill, and is

not consistent with the evidence produced in discovery.

Respondent has stated in its Motions that:

“The separation allowed a small quantity of sulfuric acid that was in

the portion of the pipe segment 2 above the fitting, and potentially

sulfuric acid contained in pipe segments 3 and 4, to be released to

the Plating Room floor.” (Motion for Summary Judgment, p. 8)

ii.

“However, an examination of Tank No. 8 after the pipe separation

indicated that at most a small amount of solution from Tank No. 8

was back-siphoned and released to the floor.” (Motion for Summary

Judgment, p. 8)

iii.

“The pump that is used to transfer sulfuric acid from bulk storage to

Tank No. 8 was not operating when the pipe separated...Thus

sulfuric acid was not pumped from bulk storage through the

separation in the pipe and onto the floor.” (Motion for Summary

Judgment, p. 8)

Complainant observed the evolution of hydrogen sulfide in the aftermath

of the spill. The diluted acid in Tank 8 is routinely dumped to the floor

every few weeks when the solution is replaced. Because the diluted acid

had never been observed to cause the evolution of hydrogen sulfide,

Complainant concluded that a large quantity of concentrated sulfuric acid

must have spilled.

During the incident, Complainant was aware of the possibility that dilute

acid might have siphoned out of Tank 8. The level did not appear to be

abnormally low, indicating that siphoning must have been minimal. Had

the level dropped below the top of the bumpers, Complainant would have

had to Call for a halt in production, and taken steps to rebuild Tank 8.

The hydrogen sulfide was rising in a hot plume several feet in diameter in

front of the tank. Complainant observed this by advancing toward the area

while holding his breath, and sticking his hands into the plume to estimate

its temperature, and speed of upward drift.

Because of the high temperature of the rising plume, Complainant

concluded that a large quantity of concentrated sulfuric acid had

spilled to the floor, where it was reacting with water and other

material on the floor, bringing the material on the floor to its boiling

point.

An image of the spill was literally etched onto the copper conductors in the

vicinity of the separated pipe. The corrosion that is normally present on

the conductors was completely cleaned, exposing bright copper metal.

The acid appeared to have streamed upward out of the separated

pipe until it struck the upper portion of the pipe. From there it

sprayed downward in a conical spray that was about six feet wide

before it fell under the catwalk. The spray appeared to have been

volumetric, that is not just on the surface of the cone, judging from

the complete cleaning of the conductors on the inside of the

pattern.

ii.

Prior to the incident, Complainant had attempted to clean similar

conductors with a spray bottle of concentrated sulfuric acid and a

wire brush. Based on the time and effort required to effect a

minimal cleaning with a wire brush, Complainant concluded that

concentrated sulfuric acid must have sprayed over the conductors

for a considerable length of time, with considerable force, to have

accomplished such a thorough cleaning.

Anthony Rice observed that the level in Tank 8 was “about the same as it

is everyday”. (Statement of Anthony Rice, Request for Production of

Documents, No. 8.)

10.

In the course of discovery, respondent has produced a technical argument to the

effect that hydrogen sulfide production was impossible in this accident.

(Statement of Mike Trueblood, Response to Request for Production of

Documents No. 12.) The technical argument was produced by a person who,

although he may be qualified as an expert, did not observe the incident.

Mike Trueblood was not present during the incident.

Complainant disagrees with many of the statements in this document,

including, but not limited to, the following:

“No strong reducing agents are used on the plating process.” (Par

15)

(1)

The following strong reducing agents are used in the

immediate vicinity of the spill: formaldehyde and 1,4-

butynediol.

ii.

“Quite the opposite, chromic acid is a very strong oxidizing agent.”

(Par. 15)

(1)

Although chromic acid is a strong oxidizing agent, it is used

a considerable distance from the spill area, and the flow of

liquid on the floor is from the area of the spill toward the

chromic acid.

iii.

“In order to make the sulfur compounds used in our plating process

and form Hydrogen sulfide (sic), a strong reducing agent would

have to be mixed with the sulfur compounds at a relatively high

concentration or with heat.”

(1)

Under mild conditions, the disproportionation reaction is

capable of producing elemental sulfur from a mixture of

sulfur compounds in a positive oxidation sate, with some of

the sulfur moving to a more positive oxidation states, while

the rest of the sulfur moves to more negative states. Once

formed, elemental sulfur reacts with water to form sulfide.

(2)

Because of the age of the sludge and debris on the plating

room floor, biological reactions may have produced sulfide.

(3)

When the sulfuric acid spilled onto the floor, it reacted with

water, liberating heat and producing high temperatures,

yielding unusual chemical and thermodynamic conditions on

the plating room floor.

11.

Complainant was present during the incident and directly observed the

production of hydrogen sulfide gas. Most of the other witnesses whose accounts

have been produced in discovery have given accounts that are consistent with

hydrogen sulfide production. Some of these witnesses also made statements to

complainant during the incident that indicated that they agreed with

complainant’s assessment at the time.

Complainant smelled the characteristic odor of hydrogen sulfide.

Complainant is familiar with this odor, having produced the gas numerous

times in laboratories, and for recreational purposes.

Complainant searched for a leaking propane cylinder, which might

have produced a similar odor, but found none.

The following witness gave an account of the incident that is consistent

with the production of hydrogen sulfide gas: “This morning at 5:30 I

walked into the plant and it smelled like rotten eggs.” (Request for

Production of Documents, No. 8, Denny Corbett, e-mail to Tanvir, Jackie

& Tony, Dated August 5, 2004, 7:36 am.)

Afiba Martin was the team leader for the plating line. He requested

Complainant’s help in locating the source of the odor and in dealing with

the acid spill after it was discovered. Complainant took over leadership of

the immediate response pursuant to this request.

The following witnesses were present in the immediate area in the

immediate aftermath of the spill:

Afiba Martin

ii.

Complainant

iii.

Joseph al-Hussani

iv.

Denny Corbett

Anthony Rice

vi.

Unidentified Maintenance man

In the course of responding to the incident, Complainant stated to all of

these persons that sulfuric acid had spilled onto the floor and was

producing hydrogen sulfide gas. This information was essential to the

response effort, and was made in the ordinary course of business. None

of these people made any statement to Complainant whatsoever to the

effect that they in any way disagreed with his assessment of the accident.

12.

Respondent has refused to name any witnesses or other evidence thatit-intends

to produce at hearing to show that the hydrogen sulfide emission did not occur.

The only witness who appears to have been in a position to testify to this seems

to be the safety manager, Denny Corbett, who, during the incident, voiced no

disagreement with complainant’s assessment, and who has made numerous

false statements in connection with this incident, and whose testimony would

therefore not be believable.

Complainants Interrogatory No. I requested a list of witnesses.

Respondent stated: “Flex-N-Gate has not yet determined what witnesses,

if any, it intends to call at hearing”.

Denny Corbett has made the following false statements in connection with

this incident:

“We did not have a hazardous waste spill or a release of hydrogen

sulfide gas at any time.” Memorandum to Guardian West

employees dated

9/14(?)104,

posted in response to an OSHA

complaint, Request for Production of Documents, No. 12.

(1)

Denny Corbett was present during the incident and

expressed no disagreement at that time with Complainant’s

opinion that there was a release of hydrogen sulfide.

(a)

Statements made during the incident were in the

ordinary course of business.

(2)

Respondent has failed to disclose in discovery any report or

other document that was available to Denny Corbett at the

time he made the above statement that would have given

him any basis for the quoted statement. Request for

Production #8 requested: “Any written accounts of the

incident on third shift, August 4-5, 2004, produced by or for

respondent.”

did have a break in one of the discharge pipes in the chrome

plating tank #8 which was a diluted sulfuric acid content...”

Memorandum to Guardian West employees dated 9/14(?)/04,

posted in response to an OSHA complaint, Request for Production

of Documents, No.12.

(1)

The break was in the pipe used to fill tank 8 with

concentrated sulfuric acid, not the discharge pipe. (Exhibit B,

pars. 21 - 26, Exhibit F attached to Respondent’s Motion for

Summary Judgment.)

(2)

The account of the incident given by Tony Rice at the same

time as the statement of Denny Corbett stated that the

release came from the line used to fill Tank 8 with

concentrated sulfuric acid. (Statement of Anthony Rice,

dated September 14, 2005, Request for Production of

Documents, No. 8.),

iii.

“We do not have any chemicals that would produce hydrogen

sulfide gas.” Memorandum to Guardian West employees dated

9/14(?)104,

posted in response to an OSHA complaint, Request for

Production of Documents, No. 12.

(1)

Sulfuric acid was present at the facility. It is capable of

generating hydrogen sulfide on contact with sulfide.

(2)

Respondent has failed to disclose any document that would

havestatement.given DennyRequestCorbettfor

Productionany

basis#8forrequested:the quoted“Any

written accounts of the incident on third shift, August 4-5,

2004, produced by or for respondent.”

iv.

“Guardian West did not have a hazardous waste spill or a release

of hydrogen sulfide gas on August 05,2004.” Fax to Peggy A.

Zweber, OSHA, 9/14/05, Request for Production of Documents,

No. 12.

(1)

Denny Corbett was present during the incident and

expressed no disagreement at that time with Complainant’s

opinion that there was a release of hydrogen sulfide.

(2)

Respondent has failed to disclose in discovery any report or

other document that was available to Denny Corbett at the

time he made the above statement that would have given

him any basis for the quoted statement. Request for

Production #8 requested: “Any written accounts of the

incident on third shift, August 4-5, 2004, produced by or for

respondent.”

“We did have a pipe break in our plating department, which

contained a diluted acid content.” Fax to Peggy A. Zweber, OSHA,

9/14/05, Request for Production of Documents, No. 12.

(1)

The break was in the pipe used to fill tank 8 with

concentrated sulfuric acid, not the discharge pipe. (Exhibit

B, pars. 21 - 26, Exhibit F attached to Respondent’s Motion

for Summary Judgment.)

(2)

The account of the incident given by Tony Rice at the same

time as the statement of Denny Corbett stated that the

release came from the line used to fill Tank 8 with

concentrated sulfuric acid. (Statement of Anthony Rice,

dated September 14, 2005, Request for Production of

Documents, No. 8.),

vi.

“And is a very disgruntled employee, we have received threat

letters that if we did not hire this employee back he would make it

difficult for Guardian West by calling local and federal agencies.”

Fax to Peggy A. Zweber, OSHA, 9/14/05, Request for Production

of Documents, No. 12.

(1)

Complainant has written no “threat letters”.

(2)

Complainant has never asked to be hired back at Guardian

West.

(3)

Although Complainant in fact contacted local and federal

agencies, he never threatened to do so.

(4)

Complainant has requested copies ofthe “threat letters” in

discovery, but Respondent has refused to provide same.

(Request for Production of Documents #18)

vii.

“We have not had any spills or releases,” Fax to Peggy A. Zweber,

OSHA, 9/14/05, Request for Production of Documents, No. 12.

(1)

Denny Corbett was present during the incident and

expressed no disagreement at that time with Complainant’s

opinion that there was a release of hydrogen sulfide.

(a)

Statements made during the incident were in the

ordinary course of business.

(2)

Respondent has failed to disclose in discovery any report or

other document that was available to Denny Corbett at the

time he made the above statement that would have given

him any basis for the quoted statement. Request for

Production #8 requested: “Any written accounts of the

incident on third shift, August 4-5, 2004, produced by or for

respondent.”

13.

As a matter of administrative efficiency, it is much simpler to require the

respondent to list, by way of affirmative defense, which exceptions it seeks to

rely on, thereby reducing the volume of paper needed to define the issues.

Respondent is suggesting a system in which the Complainant would be

required to list each of the many permit exemptions in the complaint, and

allege that the conditions of each exemption have not been met.

Complainant is suggesting a system in which the Respondent lists only

the permit exemptions it intends to rely on, and alleges compliance with

the conditions for each.

Except in the situation in which the Respondent alleges compliance with

all of the possible exemptions, Complainant’s suggested system would

require a smaller volume of paper. If the Respondent claimed all of the

exemptions, the volume of paperwould be equal.

14.

As a matter of public policy, people who are in the business of managing

hazardous waste need to either get a RCRA permit, or else make a conscious

decision to operate pursuant to an exception, and collect and maintain the

documentation needed to establish that they qualify for the exception. If a

complaint is filed against them, they should be expected to have a simple answer

as to which exception applies, and the required documentation already prepared,

so that pleading the exception should impose no burden on them whatsoever.

15.

Respondent is suggesting a system that would encourage people managing

hazardous waste to take a “we probably qualify for some exception or another,

so let’s hope we don’t get caught, but if we do, let’s go to the hearing, and then

argue that we qualify for an exemption” attitude. Respondent has clearly taken

this approach in this case.

16.

Based on Complainant’s experience in this facility, it would be impossible as a

practical matter to prepare multiple contingency plans for different portions of a

facility, and to provide meaningful training to factory employees, while drawing

the convoluted distinctions counsel is attempting to make.

17.

Requiring the complainant to allege and prove non-compliance with the RCRA

permit exceptions would require the complainant to draft an enormous complaint

in which the complainant attempted to list all of the permit exceptions, together

with the peculiar conditions of each, and allege non-compliance with those

conditions.

18.

At the time the RCRA rules were adopted, most plating such as that done at

Guardian West was done in cyanide solution. This was an easier process to

control, and it produced a better product. The problem with cyanide plating was

that it produced hazardous waste that could generate a toxic gas, hydrogen

cyanide, if the waste came into contact with acid. The RCRA rules created a

special category, “reactive waste”, mainly to address cyanide plating wastes.

Furthermore, the contingency planning requirements were obviously intended to

address the then-common situation in which cyanide plating wastes would be

mixed with acidic wastes, producing toxic emissions.

At the time the RCRA rules were adopted, Complainant was the Board

employee assigned to the task of developing the Illinois version of these

rules. Complainant has extensive personal knowledge as to the history

and background of these rules, including knowledge gained from

attending professional conferences concerning hazardous waste

management during the early years of the RCRA program.

19.

The Guardian West facility was specifically designed as a new facility to perform

only non-cyanide plating. This was done for two reasons: to avoid the danger of

evolution of a toxic gas in an acid spill and to avoid the regulatory problems

associated with cyanide plating.

Jackie Christianson, environmental manager for Guardian West, made the

above statement in response to questions during training of employees in

the ordinary course of business.

20.

There is a second type of reactive waste, sulfide-bearing waste. Although this

type of waste is not normally associated with the plating industry, it exhibits

precisely the same problem: if the waste comes into contact with acid, it

produces a toxic gas. The regulations governing cyanide and sulfide reactive

wastes are identical.

At the time the RCRA rules were adopted, Complainant was the Board

employee assigned to the task of developing the Illinois version of these

rules. Complainant has extensive personal knowledge as to the history

and background of these rules, including knowledge gained from

attending professional conferences concerning hazardous waste

management during the early years of the RCRA program.

21.

Flex-N-Gate appears to have an attitude that, while hydrogen cyanide is “really

bad”, hydrogen sulfide is “not so bad”. On the contrary, the primary toxic

mechanism for the two gasses, suffocation by binding to hemoglobin, is the

same. Of the gasses, hydrogen sulfide is slightly more toxic by many measures.

Although hydrogen sulfide is somewhat less dangerous because its foul smell is

a warning of its presence, it is more dangerous because the gas quickly numbs

the sense of smell. Of the two, hydrogen sulfide produces a far greater body

count in industrial accidents.

Complainant has a BS in chemistry. Toxicity of the common hazardous

materials are routinely taught as part of this program.

22.

Guardian West has introduced sulfide into the plating process. This is done in

order to create a high-sulfur layer of nickel within the plated product, as a part of

a controlled corrosion system that prolongs the life of the product. As illustrated

by this incident, the sulfide appears to be causing exactly the same problems as

cyanide plating.

Complainant was employed as a lab tech at the Guardian West facility.

During the course of that employment, he was responsible for

maintenance of the chemicals in Tank 20, in which the high-sulfide layer is

produced. He received employee training as to how the controlled

corrosion system worked, and had direct contact with the vendors of the

chemicals used in this system. He was the employee primarily responsible

for trouble-shooting chemical processes on the plating line, including

problems with the high-sulfur layer produced by Tank 20.

During the incident, Complainant observed hydrogen sulfide evolution

following an acid spill into waste on the plating floor. This event was

exactly analogous to hydrogen cyanide evolution following an acid spill

under a cyanide plating line.

23.

The source of the sulfide in the hydrogen sulfide was the hazardous waste

present on the plating room floor. Upon contact with acid, the sulfide in that

waste was converted to hydrogen sulfide, which was released to the

atmosphere. A portion of the hazardous waste, the sulfide contained within it,

was released to the atmosphere.

Complainant was present and observed that hydrogen sulfide was

produced when sulfuric acid was spilled onto the plating room floor.

Because the sulfuric acid used at Guardian West did not exhibit the odor

of hydrogen sulfide, it could not have contained sulfide, which would have

been rapidly emitted from a highly acidic solvent.

Because the sulfide did not come from the sulfuric acid, it must have

come from sulfide on the floor.

Complainant has a degree in chemistry, and is well acquainted with the

high school level chemistry involved in the above statements.

Complainant has prepared hydrogen sulfide in the laboratory, and is

qualified to recognize its odor.

24.

The evolution of hydrogen sulfide from the waste on the plating room floor was

clearly an event that was not contemplated when the contingency plan was

drafted. It also changed the response necessary in an emergency, since it

demonstrated that emergency equipment and training in hydrogen sulfide was

now needed at the facility.

Respondent has repeatedly offered statements that hydrogen sulfide

evolution was impossible from this facility, including the statement of Mike

Trueblood, Response to Request for Production of Documents #12, par.

13.

Complainant has examined the contingency plan for the facility, and has

found no specific references to hydrogen sulfide in that plan. The plan

does not include employee training on recognizing hydrogen sulfide and

safely dealing with it. The plan does not require the ready availability of

meters to measure hydrogen sulfide levels, or the availability of

respirators for use with hydrogen sulfide.

25.

In the event there is a future, fatal hydrogen sulfide release at the facility, the

management will certainly be indicted for reckless homicide under the Illinois

Criminal Code, unless they have taken the steps required to prevent a

recurrence of this accident, and to provide proper training and safety equipment.

26.

Respondent made a process change shortly before the hydrogen sulfide release,

with the introduction of HSA (“I~lighSulfur Additive”) 90 to the process.

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 fore9oing document

on the ~ day of July, 2005.

‘s—_.w ~

FICIAL SEAL”

~Public

Notary

BRADLEY

Public, State

M~KRALL

of iIIh~ois

Commission Expires 11126106

Morton F. Dorothy

104 W. University, SW Suite

Urbana IL 61801

217/384-1010

Morton F. Dorothy

804 East Main

Urbana IL 61802-2822

217/384-1010

MDor4248@AOL.COM

November 8, 2004

Bill Keller

Champaign County ESDA

1905 East Main

Urbana IL 61802

Dear Mr. Keller:

This letter to confirm our telephone conversation of this day in which you stateu

that, as of this day, ESDA has not received a modified contingency plan from Guardian

West since the hydrogen sulfide release incident of August 5, 2004.

I have filed a formal complaint with the State to enforce these rules. Based on

your statement to me, I will amend my complaint to allege a continuing violation through

November 8, 2004.

Sincerely,

Morton F. Dorothy

Hydrogen Sulfide Detectors Zeliweger Analytics II Neotronics GFG Instrumentation

Page 1 of 3

MlniMax XT Maintenance Free Hydrogen Sulfidi

- -

Single Gas Monitor

Item #: G100-0106

Manufacturer: Honeywell!

Zellweger

Analytics/ Lumb

Manufacturer

Item

#: MINIMAX-XTH2S

Product Type: Hydrogen Sulfide Single Gas Monitor

Your Price: $219.95

MORE INFO

~PROF-ESSIQNALE9UjPMjtj~

Flash

Gas

Hand

Accessoriesi Books Electrical Environmental Lights

Detectors

Tools HVAC Investigative

Laddersj Lic

Exa

vewcrntØMykti

Catalog

Express Shop

c~i~$~$K?

Measuring Moisture

New

Pest

Safety Sound

Tools

Meters I Products! Control ~PIumbing~Reporting~Gear

Meters IspecialslSupplieslThermc

Home Free Catalog Contact Us Customer Service Express Shop

~j~as

Detectors

e ~:s

v~s:

—~~-—

Home

Gas Detectors

Hydrogen Sulfide Detectors

Hydrogen

Sulfide

Detectors

Professional Equipment has many Hydrogen Sulfide

Detectors that provide protection against toxic gas ha

and oxygen deficiency. Our Hydrogen Sulfide Detecto

P Accessories

P Books/TrainingfReference ensure excellent performance in harsh conditions.

P Carbon Dioxide

P carbon Monoxide

Detectors

Hydrogen Sulfide Detectors Product Lisi

P Combustible Gas

P combustign Gas

Detectors

P Multi-Gas Meters

P Refrigerant Gas

P Oxygen Detectors

Detectors

Featured Gas Detectors

Page 1! -

Industrial Scientific M40 Gas Monitor

Manufacturer: Industrial Scientific corp.

Available Product Versions

Item

M40 Gas Monitor Versions

Price

Detectors

Analyzers

P HyØrQgep5~~~e P Methane Detectors

Detectors

TPI Combo Carbon Monoxide and Combustible

Gas Leak Detector

Your Price: $349.95

MORE INFO

Testo CO Stick, Carbon Monoxide Detector

Your Price: $214.95

MORE INFO

G100-

1110

C100-

1111

02, H2S, LEL

Q2,

co,

1-125, LEL

$579 ~

MOREINFO

$6 5.00

MORE

INFO

Micro Ifi Hydrogen Sulfide Gas Detector

Item #: G1590

Manufacturer: GFG Instrumentation

Manufacturer Item #: 1318-014

Product Type: Hydrogen sulfide Detector

Your Price: $329.g5

MORE INFO

http://www.professionalequipment.comlxq/ASP/Hydrogen-Sulfide-Detector/id.7/sublD.28...

)(\41(3(’C’13

7/26/2005

Search Professional Equipment

Page 1 of 3

I~PROPESSIQNALEqU~P~$’~’

QviewoartQMyAc~

Accessories! Books! Electricaif Environmentall

I Detectors I

~o~l’ 

HVACIInvestigativej Ladders

I Exa

Measuring I

Moisture

proNZts I

plumbing

Reporting

specials~Supplies Thermc

Home Free catalog Contact Us Customer Service Express Shop

Catalog

Express Shop c~~$4f4~

V~*It~

Mt~Lwwi .l

_~ns~R~B~P

Your Search for “3m 60926’ returned the results below.

Page 1121314

3M P100,’Multi Gas Respirator Cartridge (1 PaIr) for 3M Gas

Mask

Item #: A407-6026

Manufacturer: 3M

Manufacturer Item #: 60926

Product Type: 3M Respirator cartridge

Your Price:. $21.95

_______

MORE INFO

3M Acid Gas Respirator Cartridge (1 Pair) for 3M Gas Mask

Item #: A407-6002

Manufacturer: 3M

Manufacturer Item #: 6002

Product Type: 3M Respirator Cartridge

Your Price: $11.95

MORE INFO

3M Ammonia, Methylamine Respirator Cartridge (1 pair) for

3M Gas Mask

Item #: A407-6004               

Manufacturer: 3M

Manufacturer Item #: 6004

Product Type: 3M Respirator Cartridge

Your Price:$12.95

MPRE_INFO

______

3M Formaldehyde Organic Vapor Respirator Cartridge (1 PaIr)

for 3M Gas Mask

Item #: A407-6005

Manufacturer: 3M

Manufacturer Item #: 6005

Product Type: 3M Respirator cartridge

Your Price: $12.95

MORE INFO

3M Full Face Respirator 6000 SerIes

i.arge                  

Helpful Links

f~ALK

(31’i

1~~’~~~~

Featured Products:

SnakeEye II Remote

Video Inspection System

Your Price: $2,495.00

MORE INFO

FUR ThermaCAM® B2

Portable Infrared

Thermal Imager Camera

List Price: $11,750.00

Discount: $500.00

Finai Price: $11,250.00

THIS PRODUCT SHIPS FREE

(See Offer Detafls)

MORE INFO

CD-ROM Atlas

Construction Business

Forms

Your Price: $49.95

MORE INFO

ProVision 10.5mm (36

Inch Length) Borescope

Your Price: $389.95

MORE INFO

http ://www.professionalequipment.com/xq/ASP/qx/default.htm?keywor&=3m+60926

7/26/2005