RECE~VEOCLERK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD O1~T20
CHAMPAIGN COUNTY, ILLINOIS
‘I’
STATE OF ILLINOIS
MORTON F. DOROTHY,
)
Pollution Control Board
)
Complainant,
)
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
RESPONSE TO MOTION TO DISMISS
Complainant Morton
F.
Dorothy says the following for his response to
respondent Flex-n-gate Corporation’s motion to dismiss filed on or about October 7,
2004:
INTRODUCTION
1.
This case involves an accident in which sulfuric acid spilled onto hazardous
waste, resulting in a release of hydrogen sulfide, a toxic gas. Several workers
were sickened as a result of exposure to unknown levels the gas. The accident
demonstrated a weakness in the Section 725.151 contingency plan for the
facility in that the workers lacked training, and monitoring and safety equipment,
to safely deal with this type of incident. (Complaint, pars 1.3-27)
2.
Complainant has filed a separate motion to join the Illinois Environmental
Protection Agency (Agency) as party in interest and to extend time for the
Agency to respond to the motion to dismiss. Complainant intends to file his
response within the original time limit, but requests leave to revise or supplement
his response in light of the Agency’s response.
COUNT I: OPERATION WITHOUT A RCRA PERMIT OR INTERIM STATUS
RCRA Permit Requirement
3.
Section 21(f) of the Environmental Protection Act (Act) and 35 III. Adm. Code
703.12 1(a) require that any person conducting a hazardous waste treatment,
storage or disposal operation have a RCRA permit.
a.
Board rules establish certain specific exceptions to this general rule,
I
including exclusions for facilities consisting only of “elementary
neutralization units” or “wastewater treatment units” (Sections 703.123(e)
and 720.110))
b.
Board rules also establish an exclusion for large quantity generators of
hazardous waste which is treated on-site in tanks. (Sections 703.123(a)
and 722.134(a))
c.
Complainant’s burden is to show that respondent falls within the general
rule. If respondent wishes to show that this facility falls within an
exclusion, respondent needs to raise that exclusion by way of affirmative
defense, and to introduce evidence as to the applicability of the exclusion.
(35 III. Adm. Code 103.205(d))
4.
Paragraph I of Count I alleges that “Respondent is operating a hazardous waste
treatment and storage facility without a RCRA permit or interim status”.
a.
This allegation is sufficient to advise respondent of the nature of the
complaint without complainant having to list the specific TSD units that
cause the facility to be regulated.
b.
At hearing complainant intends to show that the facility in fact includes a
hazardous waste treatment unit, sludge drying unit and sludge storage
unit in which hazardous waste is stored before being shipped off-site for
recycling and disposal. Complainant has requested that the Agency
provide a complete list of the TSD units.
TSD Unit
Exclusions
5.
In paragraphs 14 - 32 of the motion to dismiss, respondent is arguing that the
facility is not required to have a RCRA permit because it includes a treatment
unit that respondent claims is an “elementary neutralization unit” or “wastewater
treatment unit”.
6.
The terms “facility” and “unit” are defined in 35 III. Adm. Code 720.110. The
“facility” is the entire geographical area which contains one or more “treatment,
storage or disposal unit” (“TSD unit”).
a.
The RCRA permit is a “facility permit” in which a single permit is issued
covering the entire geographical area, as opposed to permits for each
individual TSD unit.
b.
Respondent cannot establish that a facility is exempt from the permit
2
requirement by arguing that one unit is exempt. Rather, respondent would
have to show that all of the TSD units on the facility are exempt, including
in this case the units for drying and storing hazardous waste sludge, and
the paint line.
c.
Once a facility is subject to RCRA, many of the requirements apply to
portions of the facility other than the regulated TSD units. Specifically, the
contingency plan requirement of 35 III. Adm. Code 725.151 provides that
the owner or operator “must have a contingency plan for his facility.”
i.
This was intentionally worded this way so that in an emergency
situation, for example an acid spill involving a release of a toxic
gas, responders would not need to go to the Supreme Court for a
ruling as to whether the release was coming from a regulated unit
before deciding what to do.
ii.
This approach also allowed the RCRA contingency plan to be used
to meet the broader OSHA emergency response plan requirement
discussed below.
7.
Paragraph 10 of the complaint alleges that: “The facility includes a hazardous
waste treatment unit, which includes pH adjustment, reduction of hexavalent
chromium with sodium metabisulfite, and precipitation of a nickel and chromium
hydroxide sludge.
a.
Paragraphlo is a part of the general description of the incident and
facility. The purpose of this allegation, in conjunction with paragraph 26, is
to advise the Board that, so far as complainant is concerned, the spilled
acid was contained and washed down to a treatment unit that was
designed to handle this flow.
b.
The complaint does not allege that this is the unit which causes the facility
to be RCRA regulated, nor does the complaint take a position as to
whether the unit might be exempted from regulation as a “wastewater
treatment unit” or “elementary neutralization unit”.
c.
If respondent wishes to pursue the “elementary neutralization unit” and
“wastewater treatment unit” defenses, respondent needs to file an answer
and raise these as affirmative defenses (although this defense would only
work if all units at the facility were excluded.)
3
Respondent’s Argument is Inconsistent with Exclusion for Large Quantity
Generators of Hazardous Waste Which Is Treated On-site in Tanks
8.
In its dealings with the Agency, respondent has declared that this facility
operates pursuant to 35 III. Adm. Code 703.123(a) and 722.134(a), as a large
quantity generator of hazardous waste which is treated on-site in tanks, without a
RCRA permit or interim status. (Complaint, par 12). At hearing, complainant
intends to show:
a.
The Agency has issued Illinois EPA ID#01 91 055145 for the facility.
b.
On March 21, 2001, respondent sent the Agency a copy of its Emergency
Response and Contingency Plan with a cover letter stating that it was
“required in 40 CFR 265, subpart D”, the federal equivalent to 35 Ill. Adm.
Code 725, Subpart D. The March 21, 2001 version of the plan stated that:
“This Contingency Plan as been prepared to fulfill the requirements of 40
CFR 265, Part D and 35 Illinois Administrative Code 725”.
c.
The current version of the Emergency Response and Contingency Plan,
dated May, 2001, revised October, 2003, also states that: “This
Contingency Plan as been prepared to fulfill the requirements of 40 CFR
265, Part D and 35 Illinois Administrative Code 725”.
d.
The Emergency Response and Contingency Plan does not state that it
was prepared to meet the Occupational Safety and Health Administration
(OSHA) emergency response planning requirements. (29 CFR
1910.120(p)(8)(i)).
e.
Complainant has requested that the Agency provide the Board with
additional information as to the exclusion claimed by respondent.
9.
The contingency plan was required for a facility exempt pursuant to Sections
703.123(a) and 722.134(a), but would not have been required if the facility were
exempt as “elementary neutralization units” or “wastewater treatment units”.
10.
If respondent wants to assert exclusion as a large quantity generator of
hazardous waste which is treated on-site in tanks under Sections 703.123(a) and
722.134(a), it needs to raise this by way of affirmative defense, and to prove that
it qualifies.
a.
Section 722.134(a)(4) requires compliance with the contingency plan
requirements of Section 725.151 et seq,
4
b.
Section 722.134(a) limits hazardous waste accumulation to 90 days.
c.
Section 722.134(b) requires a RCRA permit if the 90-day storage period is
exceeded.
COUNT II: FAILURE TO CARRY OUT CONTINGENCY PLAN AS REQUIRED BY
SECTION 725.151
Applicability of Section 725.151
11.
In paragraph 37 and 38 of the motion to dismiss, respondent contends that
Section 725.151(b) does not apply to a “wastewater treatment unit” or
“elementary neutralization unit”.
a.
As discussed above, Section 725.151 provides that the owner or operator
“must have a contingency plan for his facility”. The contingency plan
applies to the entire facility, not just to regulated TSD units.
b.
As is also discussed above, respondent would have to prove that each
and every TSD unit of the facility is excluded to defeat the requirement to
have a contingency plan.
c.
As is also discussed above, respondent has declared to the Agency that
this facility as exempt pursuant to Section 703.123(a) and 722.134(a),
which requires compliance with Section 725.151.
12.
In paragraph 38 ofthe motion to dismiss, respondent contends that the
contingency plan requirements of Section 721.151 do not apply to a “wastewater
treatment unit” or “elementary neutralization unit” because Section
725.101(c)(i0) provides that Part 725 does not apply to the owner or operator of
such units.
a.
However, if there is a non-excluded TSD unit on the same facility, Section
725.151 requires a contingency plan for the entire facility.
13.
OSHA rules require the preparation of a similar “Emergency Response Plan”.
Those rules allow the owner or operator of a RCRA facility to use the
contingency plan prepared pursuant to Board rules to meet the OSHA
requirement.(29 CFR 1910.120(p)(8)(i)).
a.
At hearing, complainant intends to show that respondent elected to
prepare a RCRA contingency plan, and to use the RCRA contingency
plan to meet the OSHA requirement.
5
b.
In now arguing that the facility was not subject to the RCRA contingency
plan requirement, respondent is arguing that it intentionally violated the
requirement to prepare an OSHA Emergency Response Plan.
Respondent is estopped to claim that it intentionally violated the OSHA
rules by preparing a sham RCRA contingency plan.
Hydrogen Sulfide Was a Release of Hazardous Waste or Hazardous Waste
Constituents
14.
Paragraph 40 and 43 of the motion to dismiss claim that the contingency plan
was not activated because the release of hydrogen sulfide was not a “release of
hazardous waste or hazardous waste constituents”
15.
Hydrogen sulfide is a hazardous waste, listed as U135 in Part 721.
16.
Hydrogen sulfide is a hazardous constituent listed in Appendix H of Part 721.
17.
Hazardous waste D003 is reactive waste: “a cyanide or sulfide bearing waste
which, when exposed to pH conditions between 2 and 12.5 can generate toxic
gases, vapors, or fumes in a quantity sufficient to present a danger to human
health or the environment”. (Par. 17 of the Complaint).
a.
This type of D003 is listed because of its propensity to evolve toxic
gasses, hydrogen cyanide or hydrogen sulfide, when mixed with acid in
accidents exactly like the incident alleged in the complaint.
The Contingency Plan Requirements apply
to Releases of Gasses from
Hazardous Waste whether the Gasses are Contained or Not.
18.
In paragraphs 44 - 51 respondent argues that the contingency plan requirements
did not apply because un-contained hydrogen sulfide is not a ‘waste’ for
purposes of RCRA.
19.
In paragraphs 45 -47 of the motion, respondent argues that the statutory
definitions of “waste” and “hazardous waste” control the scope of the RCRA
program in Illinois. (415 ILCS 5/3.220 and 3.535). The Board implemented the
rulemaking directive of Section 22.4 of the Act by adopting extensive definitions
of these terms in Part 721. In order to keep the program “identical in substance”
with the federal program, the definitions in Part 721 control the scope of the
regulatory program, rather than the definitions in the Act.
20.
By arguing that the contingency plan requirements do not apply to spills that
result in releases of un-contained gasses, respondent is advancing an absurd
6
argument that would render a large portion of contingency planning
meaningless. Respondent is contending that RCRA facilities handling reactive
waste would never have to plan for a hydrogen cyanide or hydrogen sulfide
release incident, since these releases would never be “contained”. One of the
main purposes of the RCRA program was to protect workers and the
environment from toxic gas releases caused by accidents involving the handling
of reactive waste capable of releasing hydrogen cyanide or hydrogen sulfide.
21.
The cases cited by respondent in paragraphs 48 and 49 of the motion involve
attempts to extend the RCRA rules to “gaseous process emissions” on the
grounds that the emissions are “hazardous waste”. Complainant is not
contending that this facility should be regulated under RCRA because of
gaseous process emissions. The facility was already subject to RCRA for
reasons unrelated to this incident. The owner or operator was therefore required
to prepare a contingency plan for the facility, and to follow that plan in the event
of accidental release of toxic gas from hazardous waste.
a.
Respondent cites Helter v. AK Steel, 1997 U.S. District LEXIS 9852 (S.D.
Ohio 1997), an unreported trial court decision. That case involved a leak
of coke oven gas (“COG”) from a pipe which was carrying the gas for use
as a fuel:
“Plaintiffs do not contend that the COG in Defendant’s pipes
is solid waste. That COG has not been discarded and the
pipelines do not constitute a means of disposal.”
b.
The plaintiff in that case argued that RCRA applied because the gas
became a waste at the point at which it leaked. This case is different in
that the gas was generated from a hazardous waste in a handling
accident.
Respondent waived the Applicability Argument when it actually prepared a
Contingency Plan pursuant to Section 725.1 51
22.
Respondent in fact prepared a contingency plan pursuant to Section 725.151.
a.
Page 6-4 of the plan requires that it be implemented when there is “a spill
that could cause a release of toxic liquids or fumes”.
b.
The respondent has waived any argument to the effect that it was not
required to have prepared the plan that it actually prepared, and is
estopped from arguing that it has intentionally failed to prepare an OSHA
emergency response plan by relying on a sham RCRA plan.
7
COUNT Ill: FAILURE TO NOTIFY AGENCY
23.
In paragraph 61 et seq. of the motion, respondent argues that it was not required
to notify the Agency because it was not required to have a contingency plan and
because this incident did not trigger the plan. For the reasons discussed above,
respondent was required to have a contingency plan, and was required to
implement it in this incident..
24.
At hearing, complainant intends to prove that respondent in fact prepared a
contingency plan pursuant to Section 725.151. Page 6-10 of the plan requires
reporting of sulfuric acid spills larger than 100 pounds.
a.
More than 1000 pounds of concentrated sulfuric acid was spilled in this
incident. (Complaint, pars 7-11)
25.
The respondent has waived any argument to the effect that it was not required to
have prepared the plan that it actually prepared, and is estopped from arguing
that it has intentionally failed to prepare an OSHA emergency response plan by
relying on a sham RCRA plan.
COUNT IV: FAILURE TO
AMEND THE CONTINGENCY PLAN
FOLLOWING
FAILURE
OFTHE PLAN
26.
In paragraph 67 et seq. of the motion, respondent argues that it was not required
to amend the plan because it was not required to have a contingency plan and
because this incident did not trigger the plan. For the reasons discussed above,
respondent was required to have a contingency plan, and was required to
implement it in this incident.
27.
The plan failed in this incident regardless of whether the incident triggered the
plan.
a.
When workers suspected a hydrogen sulfide release, the failure of the
safety officer to know what a hydrogen sulfide meter was or whether the
facility had one showed that the plan needed to be amended to require
training in this area and the availability of a hydrogen sulfide meter.
(Complaint, pars 23-25)
b.
When workers suspected a hydrogen sulfide release but did not have
proper training or protective equipment to respond, the plan needed to be
amended to provide the training and equipment so that workers could
address the possible release safely.
8
• c.
By arguing that an incident in which workers were merely sickened did not
show the need to amend the plan, respondent is arguing that the need to
amend the contingency plan would be triggered only if a worker was
actually killed attempting to respond without training, monitoring
equipment or proper respirator.
COUNT V: FAILURE TO AMEND THE CONTINGENCY PLAN IN RESPONSE TO
CHANGED CIRCUMSTANCES
28.
In paragraph 74 et seq. of the motion, respondent argues that it was not required
to amend the plan because it was not required to have a contingency plan and
because this incident did not trigger the plan. For the reasons discussed above,
respondent was required to have a contingency plan, and was required to
implement it in this incident.
29.
Regardless of whether the incident triggered the plan, the incident demonstrated
that the facility needed to plan for a hydrogen sulfide release.
a.
Section 725.154(c) requires that the contingency plan be reviewed and
immediately amended whenever: “The facility changes--in its design,
construction, operation, maintenance or other circumstances--in a way
that materially increases the potential for fires, explosions or releases of
hazardous waste or hazardous waste constituents or changes the
response necessary in an emergency.”
At hearing, complainant intends to show that “the operation”
changed a few months before the incident when respondent began
using “HSA (High Sulfur Additive)-90” in the process. (Complaint,
par 8) Respondent should have recognized that this created a new
risk of a hydrogen sulfide release, and should have either tested
that chemical, or modified the contingency plan at that time.
ii.
The hydrogen sulfide relOase itself showed that the plan needed to
be amended to address this type of incident: res ipse loquitur.
COUNT VI: FAILURE TO CARRY OUT CONTINGENCY PLAN AS REQUIRED BY
THE PLAN
30.
Paragraph 80 et seq. of the motion argue that respondent was not required to
follow the plan because it was not required to have a contingency plan and
because this incident did not trigger the plan. For the reasons discussed’ above,
respondent was required to have a contingency plan, and was required to
9
implement it in this incident.
31.
Beyond this, respondent actually did have a contingency plan prepared pursuant
to Section 725.151, and needs to be held to that plan regardless of after-the-fact
legal arguments that the plan was not required.
a.
As discussed above, respondent prepared a contingency plan as early as
March, 2001, and represented to the Agency, ESDA and the Urbana Fire
Department that the plan was prepared to meet the requirements of 35 III.
Adm. Code 725.
b.
Respondent elected not to prepare an OSHA emergency response plan,
instead relying on the RCRA contingency plan.
c.
The respondent has waived any argument to the effect that it was not
required to have prepared the plan that it actually prepared, and is
estopped from arguing that it has intentionally failed to prepare an OSHA
emergency response plan by relying on a sham RCRA plan.
32.
At hearing, complainant will show that the plan prepared by respondent had the
following stated triggers in the plan itself, which triggers were pulled:
a.
‘ When Department Associates recognized an emergency (Page 6-3 of the
plan, pars. 2-6 of Count VI of the complaint).
b.
A spill that caused the release of toxic fumes (Page 6-1 of the plan, pars
7-8 of Count VI of the complaint).
c.
A spill of more than 100 pounds of sulfuric acid (Page 6-10 of the plan,
‘pars 9 -14 of Count VI the complaint.)
WHEREFORE complainant prays:
A.
That the Board deny the motion to dismiss.
B.
That the Board allow complainant to supplement or revise this response
following receipt of a response from the Agency.
10
C.
That the Board accept this case for hearing.
M
—~
~
Morton F. Dorothy, Complainant
Morton F.
Dorothy
804 East Main
Urbana IL 61802
217/384-1010
11
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
MORTON F. DOROTHY,
Complainant,
vs.
FLEX-N-GATE CORPORATION,
an Illinois Corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have
served the listed document, by first class
mail, upon the listed persons, on the
____
day of October, 2004.
RESPONSE TO MOTION TO DISMISS
Thomas G. Safley
Hodge Dwyer Zeman
3150 Roland Avenue
Post
Office Box 5776
Springfield IL 62705-5776
~V
Morton
F. Dorothy, Complainant
Morton F. Dorothy
804 East Main
Urbana IL 61802
217/384-1010
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
No. PCB 05-049
