THIS FILING SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
C om pl ai n an t,
)
)
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 Flex-N-Gate Corporation’s
MOTION FOR LEAVE
TO FILE REPLY IN SUPPORT OF MOTION TO STRIKE AFFIDAVITS FILED
AND UNSUPPORTED STATEMENTS MADE IN SUPPORT OF
COMPLAINANT’S SUMMARY JUDGMENT FILINGS AND MOTION FOR
ADMONISHMENT OF COMPLAINANT and RESPONSE TO
COMPLAINANT’S SECOND MOTION TO SUBSTITUTE AFFIDAVITS, AND
MOTION TO STRIKE “SUBSTITUTED AFFIDAVIT”
copies of which are herewith
served upon you.
Respectfully submitted,
FLEX-N-GATE CORPORATION,
Respondent,
Dated: August 11, 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, AUGUST 11, 2005
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
MOTION FOR LEAVE TO FILE REPLY IN SUPPORT OF MOTION TO STRIKE
AFFIDAVITS FILED AND UNSUPPORTED STATEMENTS MADE IN SUPPORT
OF COMPLAINANT’S SUMMARY JUDGMENT FILINGS AND MOTION FOR
ADMONISHMENT OF COMPLAINANT and RESPONSE TO COMPLAINANT’S
SECOND MOTION TO SUBSTITUTE AFFIDAVITS, AND MOTION TO STRIKE
“SUBSTITUTED AFFIDAVIT” 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 August 11, 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 August 11, 2005.
/s/ Thomas G. Safley
Thomas G. Safley
GWST:003/Fil/NOF and COS – Motion for Leave – Reply, Response to Second Motion
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
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.
)
MOTION FOR LEAVE TO FILE REPLY IN SUPPORT OF MOTION
TO STRIKE AFFIDAVITS FILED AND UNSUPPORTED STATEMENTS
MADE IN SUPPORT OF COMPLAINANT’S SUMMARY JUDGMENT
FILINGS AND MOTION FOR ADMONISHMENT OF COMPLAINANT
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and for its Motion for Leave to
file Reply in Support of Motion to Strike Affidavit s Filed and Unsupported Statements
Made in Support of Complainant’s Summary Judgment Filings a nd Mot ion for
Admo nishment of Complainant (“Mot ion to Strike and Admo nish”), states as fo llows:
1.
On or about July 18, 2005, Flex-N-Gate filed its Motion to Strike and
Admonish.
2.
On July 27, 2005, Complainant mailed his Response to Flex-N-Gate’s
Motion to Strike and Admonish (“Complainant’s Response”) to the undersigned.
3.
For the reasons stated below, Complainant moves the Illinois Pollution
Control Board (“Board”) for leave to file a Reply in support of its Motion to Strike and
Admonish to address two issues raised by Complainant in his Response.
4.
First, in paragraph 8.b. – d. of his Response, Complainant argues that
“[m]any of Respondent’s object ions [to Complainant’s filings] center on the absence of
qualified expert witnesses,” and that while Flex-N-Gate “is free to question the degree of
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
2
Complainant’s expertise in various areas at hearing, this goes to the weight of the
evidence.” Complainant’s Response at ¶8.b.-d.
5.
Complainant misunderstands Flex-N-Gate’s argument. What Flex-N-Gate
argued was that Complainant’s affidavits did not establish that Complainant has personal
knowledge or the qualifications to make the statements included in the affidavits. Illinois
Supreme Court Rule 191(a) requires that affidavits include this. Flex-N-Gate never
argued t hat Complainant’s affidavit s established that Complainant did have personal
knowledge or was qualified (as an expert or otherwise) to make a statement, but that the
Board should find t hat Complainant did not have personal knowledge or was not
qualified.
6.
Thus, Flex-N-Gate’s argument does not go to Complainant’s status as an
“expert” or to the weight that the Board should give Plaintiff’s affidavits. (In fact, the
word “expert” does not even appear in Flex-N-Gate’s Motion to Strike and Admonish.)
Rather, Flex-N-Gate’s argument goes to the question of whether Plaintiff’s affidavits are
in compliance with the requirement of Rule 191(a) t hat an affiant establish personal
knowledge of, and qualificat ions to make, the statements included in his or her affidavit
as a threshold issue.
7.
Flex-N-Gate did not anticipate, and could not have anticipated, that
Complainant would misinterpret its argument on this issue.
8.
This argument is central to Flex-N-Gate’s Motion to Strike.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
3
9.
Accordingly, Flex-N-Gate would be prejudiced if the Board does not grant
it leave to file a Reply in support of its Motion to Strike and Admo nish in order to
address Complainant’s misinterpretation of Flex-N-Gate’s argument.
10.
Second, Complainant argues that Flex-N-Gate “is somehow arguing that
the fact that Denny Corbett’s [alleged] lies were made in his reports to Occupational
Safety and Health Administration (“OSHA”), and were therefore criminal in nature,
somehow makes them off limits to discussion in this case.” Complainant’s Response at
¶11.
11.
This also misinterprets Flex-N-Gate’s argument. Flex-N-Gate did not
argue that Complainant’s allegations were improper because they involved OSHA and
alleged criminal conduct, but because “Complainant’s allegations . . . are conclusory and
are not supported by any facts.” Motion to Strike and Admonish at ¶61. (Emphasis
added.)
12.
Flex-N-Gate also did not anticipate, and could not have anticipated, that
Complainant would misinterpret this argument.
13.
This argument is central to Flex-N-Gate’s Mot ion to Admonish.
14.
Accordingly, Flex-N-Gate also would be prejudiced if the Board does not
grant it leave to file a Reply in support of its Mot ion to Strike and Admonish in order to
address Complainant’s misinterpretation of Flex-N-Gate’s argument on this issue.
WHEREFORE, for the reasons stated above, Respondent, FLEX-N-GATE
CORPORATION, respectfully moves the Illinois Pollution Control Board to grant it
leave to file a Reply in support of its Motion to Strike and Admonish to address the issues
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
4
outlined above, and to award FLEX-N-GATE CORPORATION such other relief as the
Illinois Pollution Control Board deems just.
Respectfully submitted,
FLEX-N-GATE CORPORATION
R
e
s
p
o
n
d
e
n
t
,
By:/s/ Thomas G. Safley
One of Its Attorneys
Dated: August 11, 2005
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:003/Fil/Motion for Leave – Reply – Motion to Strike and Admonish
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
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
SECOND MOTION TO SUBSTITUTE AFFIDAVITS,
AND MOTION TO STRIKE “SUBSTITUTED AFFIDAVIT”
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 Second Mot ion to Subst itute Affida vits, and Mot ion to Strike “Subst itut ed
Affidavit,” states as follows:
I.
PROCEDURAL BACKGROUND
1.
On May 27, 2005, Flex-N-Gate filed its Mot ion for Summary Judgment as
to All Counts of Complainant’s Co mplaint (“Flex- N-Gate’s Motion for Complete
Summary Judgment”) and its Motion for Partial Summary Judgment as to Counts II
through VI of Co mplainant’s Complaint ( “Flex-N-Gate’s Motion for Partial Summary
Judgment”; collectively “Flex-N-Gate’s Motions for Summary Judgment”).
2.
On or about June 24, 2005, Complainant filed his Responses to Flex-N-
Gate’s Motions for Summary Judgment.
3.
With those Responses, Complainant also filed his “Affidavit in Support of
Responses to Motions for Summary Judgment.” SComee
plainant’s Responses to Flex-
N-Gate’s Motion for Summary Judgment.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
2
4.
On July 8, 2005, Flex-N-Gate moved the Illinois Pollution Control Board
(“Board”) to, among other things, strike this Affidavit. SeeFlex-N-Gate’s
Motion to
Strike Affidavits Filed and Unsupported Statements Made in Support of Complainant’s
Summary Judgment Filings and Mot ion for Admonishment of Complainant (“Mot ion to
Strike and Admonish”) at 8-16.
5.
On July 28, 2005, Complainant filed his Second Motion to Substitute
Affidavits.
II.
RESPONSE TO COMPLAINANT’S SECOND MOTION TO STRIKE
AFFIDAVITS, AND MOTION TO STRIKE “SUBSTITUTED
AFFIDAVIT”
6.
In his Second Motion to Substitute Affidavits, Complainant “moves that
the Board allow him to substitute affidavits [sic] in support of his Responses to
Respondent’s Motions for Summary Judgment,” and in support of this Motion, states in
part:
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.
*
*
*
Rather than argue the sufficiency of the affidavit made in support of
[Complainant’s Responses to Flex-N-Gate’s Motions for Summary
Judgment], complainant wishes to provide a more detailed affidavit
meeting some of the objections raised by respondent.
Complainant’s Second Mot ion to Subst itute Affidavits at ¶¶3, 6.
7.
The Board has not ruled on Complainant’s Second Motion to Subst itute
Affidavits, and has not otherwise granted Complainant leave to file a substitute Affidavit
in support of his Responses to Flex-N-Gate’s Motions for Summary Judgment.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
3
8.
Nevertheless, with his Second Motion to Substitute Affidavits,
Complainant also filed the “Subst ituted Affidavit” that he is asking the Board for
permission to file. See Complainant’s Second Motio n to Substitute Affidavits at 2-19.
9.
This “Subst ituted Affidavit” is fifteen pages long, and includes three
“exhibits” in support of Complainant’s Responses to Flex-N-Gate’s Motions for
Summary Judgment. Id.
10.
For the reasons stated in Flex-N-Gate’s Motions for Summary Judgment,
Flex-N-Gate submit s that the major it y o f Complainant’s “Subst itut ed Affidavit” is
irrelevant, as it attempts to address the alleged emission of hydrogen sulfide gas at the
Facilit y at issue in this lit igat ion, which is not a mat erial fact for purposes of Flex-N-
Gate’s Motions for Summary Judgment.
11.
Thus, allow ing Complainant leave to file his “Substituted Affidavit”
would be meaningless, as it would only inject more irrelevant infor mat ion into t his
proceeding.
12.
Flex-N-Gate also has numerous objections to Complainant’s “Substituted
Affidavit” for the reasons stated in Flex-N-Gate’s Motion to Strike and Admo nish.
13.
Thus, if the Board grants Complainant’s Second Motion to Subst itute
Affidavits, Flex-N-Gate will need to revise its Motion to Strike and Admonish in order to
raise these objections.
14.
Given the length of Co mplainant’s proposed “Substitut ed Affidavit,” these
revisions would be voluminous.
15.
Further, if the Board grants Complainant’s Second Motion to Subst itute
Affidavit s, Flex-N-Gate may have grounds to move the Board for leave to file Replies in
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
4
support of its Mot ions for Summary Judgment to address issues raised in Co mplainant’s
“Subst ituted Affidavit.”
16.
However, as noted above, the Board has not even granted Complainant
leave to file his “Substituted Affidavit.”
17.
The Board, for whatever reason, may not grant Complainant leave to file
his “Subst ituted Affidavit.”
18.
It does not make sense for Flex-N-Gate to incur the expense at this time to
address deficiencies in, or to seek leave to file a Reply in support of its Motions for
Summary Judgment based on, an affidavit which the Board may not even grant
Complainant leave to file.
19.
Further, it does not make sense for Flex-N-Gate to clutter the Board’s file
in this matter with filings addressing Complainant’s “Subst ituted Affidavit,” which
filings would be rendered moot if the Board denies Complainant’s Second Motion to
Substitute Affidavits.
20.
Accord ingly, Flex-N-Gate moves the Board to strike Complainant’s
“Subst ituted Affidavit” pending the Board’s decision on Complainant’s Second Mot ion
to Substitute Affidavits.
21.
If the Board denies Complainant’s Second Motion to Substitute Affidavits,
Flex-N-Gate will have no need to amend its Mot ion to Strike and Admonish or to move
the Board for leave t o file Replies in support of its Motions for Summary Judgment based
on Complainant’s “Subst ituted Affidavit.”
22.
If the Board grants Complainant’s Second Motion to Substitute Affidavits,
Flex-N-Gate will file at that time an amended Motion to Strike and Admonish, and, if
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
5
appropriate, will mo ve t he Board for leave to file Replies in support of its Mot ions for
Summary Judgment, in order to address Complainant’s “Subst ituted Affidavit.”
23.
Flex-N-Gate responded previously to the arguments made by Complainant
in paragraphs 5, 7, and 7.a. of Complainant’s Second Motion to Substitute Affidavits.
See
Flex-N-Gate’s Response to Complainant’s [First] Motion to Subst itute Affidavits.
24.
Flex-N-Gate hereby incorporates its previous responses to these arguments
in response to Complainant’s Second Motion to Subst itute Affidavits.
III.
RESPONSES TO SPECIFIC ALLEGATIONS OF MISCONDUCT
25.
Despite the above, Flex-N-Gate must at this time respond to two spurious
allegations made by Co mplainant in his “Substituted Affidavit.”
A.
Response to Allegations of Delay
26.
In paragraphs 3.g., 3.h., and 3.i. of Complainant’s Second Motion for
Leave to Substitute Affidavits, Complainant states:
[Flex-N-Gate’s] mot ions for summary judgment repeat legal arguments
already made to the Board in [Flex-N-Gate’s] Motion to Dismiss, and do
not depend on any new facts adduced in discovery.
Because the Board denied [Flex-N-Gate’s] motion to dismiss, Respondent
had no reasonable basis to believe that [its] motions for summary
judgment would be granted.
The o nly possible purpose o f filing t he mot ions for summary judgment
was to delay the case.
Second Motion for Leave to Substitute Affidavits, “Substituted Affidavit,” ¶¶3.g., h., i.
27.
This argument misrepresents Flex-N-Gate’s filings, and Flex-N-Gate
vehemently denies and objects to Complainant’s improper allegation that Flex-N-Gate
filed its Motions for Summary Judgment “to delay the case.”
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
6
28.
First, despite Complainant’s assertion to the contrary, Flex-N-Gate’s
Motions for Summary Judgment do “depend on . . . new facts.” Flex-N-Gate’s Motion
for Complete Summary Judgment contains a factual sect ion w hich is more t han seven
pages long, and relies on 16 exhibits, including affidavits.
FlSeeex-N-Gate’s Mot ion for
Complete Summary Judgment at 2-9 (factual alleg ations), in general (Exhibits A t hrough
P). Flex-N-Gate’s Mot ion for Partial Summary Judgment contains a factual section
which is approximately one page long, and relies on six exhibits. See
Flex-N-Gate’s
Motion for Partial Su mmary Judgment at 2-3 (factual allegat ions), in general (Exhibits A
through F).
29.
These factual allegations and exhibits obviously were not before the Board
when it ruled o n Flex-N-Gate’s Motion t o Dismiss.
30.
When ruling on a Motion to Dismiss, the Board applies “the same
principles applied to Illinois Code of Civil Procedure 2-615 and 2-619 motions to strike
or dismiss.” County of DuPage v. Waste Management of
,
IAC
ll.
No. 94-92, 1994 Ill.
ENV LEXIS 1488, at *4 (Ill.Pol.Control.Bd. Dec. 1, 1994). As Flex-N-Gate’s Motion
argued that Complainant’s Complaint failed to state a claim upon which relief can be
granted, it was, in effect, a Rule 2-615 Motion. See
T & S Signs, Inc. v. Village of
Wadsworth, 634 N.E.2d 306 (2d Dist. 1994), which states:
The legal theories for proceeding o n a mot ion to dismiss under sect ions 2-
615 and 2-619 differ. A section 2-615 motion attacks the legal sufficiency
of the complaint by asserting that it fails t o state a cause o f act ion upon
which relief can be granted. Under section 2-619, a party admits the legal
sufficiency of the complaint but asserts an affirmative defense or other
matter which avoids or defeats the claim.
Id.
at 308. (Citations o mitt ed.)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
7
31.
It is axiomatic that motions to dismiss for failure to state a claim may not
“be supported by reference to any facts or exhibits that are not alleged in or attached to
the complaint under attack.” Scott Wetzel Serv. v. Regard
, 648 N.E.2d 1020, 1022 (1st
Dist. 1995). Thus:
It is error . . . for a trial court to consider affidavits, deposit ions, or exhibit s
when considering a sect ion 45 [now Section 2-615] motion to [strike or]
dismiss a complaint for failure to state a cause of action.
Maas v. Cohen Assoc., Inc. , 445 N.E.2d 517, 521 (1st Dist. 1983). (Quotations omitted;
emphasis added.)
32.
Second, the Board’s Order denying Flex-N-Gate’s Motion to Dismiss
cannot be read as deciding the issues raised by Flex-N-Gate’s Motions for Summary
Judgment.
33.
The Board’s Order denying Flex-N-Gate’s Motion to Dismiss does not
rule on any specific legal arguments made by Flex-N-Gate in its Mot ion to Dismiss, or,
for that matter, by Complainant in responding to that Motion. Rather, t he Board’s Order
concludes: “Taking all well-pled facts as true and viewing them in a light most favorable
to the non- movant, the Board finds there is a set o f facts that could entit le Mr. Dorothy to
relief.” Board Order, Feb. 3, 2005, at 8. The Order does not, however, identify what that
“set of facts” might be.
34.
Without more explanation, the reason that the Board denied Flex-N-Gate’s
Motion to Dismiss cannot be determined. That does not mean, however, that in denying
Flex-N-Gate’s Motion to Dismiss the Board took any particular position on legal
arguments raised in that Motion o r in Complainant’s response to that Motion. Rather,
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
8
a.
As to Count I, and in part as to Counts II through VI, Flex-N-Gate
argued that it was entit led to dismissal because the allegations of Complainant’s
Complaint “establish[] that t he Treatment Syste m at t he Facilit y at issue is a
‘wastewater treatment unit’ exempt fro m RCRA permitt ing requirements.”
Motion to Dismiss at ¶17. Perhaps the Board disagreed that this question was
settled by the pleadings alone, and felt that more facts were necessary on the
question o f whether or not the plant’s treatment system constituted a “wastewater
treatment unit” under RCRA. Flex-N-Gate submits that such additional facts
have been provided by Flex-N-Gate’s Mot ions for Summary Judgment.
b.
As to Counts II through VI, Flex-N-Gate also argued that it was
entitled to dismissal because Complainant alleged that a release of “gas” occurred,
and “gases” are not regulated by RCRA. Seee,
.g., Motion to Dismiss, at ¶43.
Perhaps the Board disagreed that Complainant had clearly alleged that the
material released was a “gas.” Flex-N-Gate submits that if this was not clear
before, it now is clear that Complainant is alleging that a “gas” was released.
c.
Or, perhaps the Board found that Flex-N-Gate had not made its
legal argument clearly enough, and that the Board needed more argument to
decide the legal issues raised by Flex-N-Gate’s Motion to Dismiss. If this was the
case, Flex-N-Gate submits that it has fully explained and supported its legal
argument by its Mot ions for Summary Judgment.
35.
Regardless, again, because the Board’s Order denying Flex-N-Gate’s
Motion to Dismiss did not state the Board’s posit ion on the legal arguments made by
Flex-N-Gate and Complainant, that Order cannot be read as taking any position as to
those legal arguments, and thus cannot be read as preordaining the result of the Board’s
consideration of Flex-N-Gate’s Mot ions for Summar y Judgment.
36.
In light of the above, Complainant is wrong to argue that Flex-N-Gate’s
Motions for Summary Judgment “do not depend on any new facts,” that Flex-N-Gate
“had no reasonable basis t o believe t hat [its] mot ions for summary judgment would be
granted,” and that “[t]he only possible purpose of filing the motions for summary
judgment was to delay the case.” Second Motion for Leave to Substitute Affidavits,
“Substituted Affidavit,” ¶¶3.g., h., i.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
9
37.
Third, this conclusion is further supported by the fact that the Board
applies different standards when deciding mot ions to dismiss and mot ions for summary
judgment. On a motion t o dismiss for failure to state a claim, the question t hat t he Board
must decide is w hether t he complainant has alleged “sufficient facts to bring the
[complainant’s] claim within the scope of a legally recognized cause of action.” Oravek
by Brann v. Communit y Sch. Dist. 14
, 264
6 Ill. App. 3d 895, 898 (1st Dist. 1994). On a
mot ion for summary judgment, the Complainant has ala legvalid
ed
cause of action, and
the question for the Board is whether there is “no genuine issue as to any material fact
and the moving party is ent itled to 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) (citing Dowd & Dowd, Ltd. v. Gleason
, 181 Ill. 2d
460, 483, 693 N.E.2d 358, 370 (1998)); accord
, 35 Ill. Admin. Code § 101.516(b).
38.
Flex-N-Gate did not act improper ly in filing its Motions for Summary
Judgment, and Complainant’s allegation that Flex-N-Gate did act improperly is anot her
example of Co mplainant filing “scandalous and impertinent mater ial, ” for which filing
the Board shou ld admonish Co mplainant. SeFleex-N-Gate’s
Motion to Strike and
Admonish at 27-30.
B.
Response to Allegation of Failure to Disclose Witnesses
39.
In paragraph 12 of his “Substituted Affidavit,” as in previous filings,
Complainant argues that Flex-N-Gate has “refused” to “name any witnesses or other
evidence that it intends to produce at hearing to show that the hydrogen sulfide emission
did not occur.”
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
10
40.
Complainant further notes, however, that in response to Complainant’s
Interrogatory No. 1, Flex-N-Gate states that it “has not yet determined what witnesses, if
any, it intends to call at hearing.”
41.
Complainant’s argument that, by this response, Flex-N-Gate has “refused”
to “name . . . witnesses or other evidence” implies that Flex-N-Gate’s response to
Complainant’s I nterrogatory No. 1 is so mehow inappropriate.
42.
Flex-N-Gate vehemently disagrees with such an implication.
43.
Obviously, Flex-N-Gate does not think that any hearing will be held in
this matter; that is why Flex-N-Gate filed its Mot ions for Summary Judgment. Flex-N-
Gate has no way to ident ify what witnesses it would need to call at a hearing it does not
think will need to take place.
44.
Even if Flex-N-Gate were to assume that a hearing would take place,
however, Flex-N-Gate’s position is t hat t he question o f whether or not a release of
hydrogen sulfide occurred is irrelevant. See
Flex-N-Gate’s Motions for Summary
Judgment. Accordingly, Flex-N-Gate has no reason to “name any witnesses or other
evidence that it intends to produce at hearing to show that the hydrogen sulfide emission
did not occur.” Irrelevant witnesses and evidence would not be admissible at hearing.
45.
Finally, the only way that a hearing will take place in this matter is if the
Board denies, in who le o r in part, the Parties’ Mot ions for Summary Judgment. Only if
that happens would Flex-N-Gate know what the issues at hearing will be, and thus, what
witnesses it would need to produce at hearing. If the Board denies Flex-N-Gate’s
Motions for Summary Judgment, it could do so because of a narrow issue of fact, and
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005
11
then, the only wit nesses that the Parties would need to present at hearing would be o n that
narrow issue.
46.
Thus, Flex-N-Gate’s response to Complainant’s request for a list of
witnesses is ent irely appropr iate. Obviou sly Flex- N-Gate will have an o bligat ion under
the Board’s procedural rules to supplement its response to Complainant’s Interrogatory
No. 1 if a hearing is going to be held in this matter. For now, however, Flex-N-Gate
objects to Complainant’s implication in this and other filings that Flex-N-Gate has
somehow acted improperly by failing to identify wit nesses for a hear ing that may never
happen, or, if it happens, the scope of which is at this point undefined.
IV.
CONCLUSION
WHEREFORE, for the reasons stated above, Respondent, FLEX-N-GATE
CORPORATION, respectfully moves the Illinois Pollution Control Board to strike
Complainant’s “Substituted Affidavit,” and to award FLEX-N-GATE CORPORATION
such other relief as t he I llino is Po llut ion Control Board deems just.
Respectfully submitted,
FLEX-N-GATE CORPORATION
R
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By:/s/ Thomas G. Safley
One of Its Attorneys
Dated: August 11, 2005
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 Second Motion to Substitute Affidavits
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 11, 2005