ILLINOIS POLLUTION CONTROL BOARD

THE COMPLAINT, MOTIONS, AND RESPONSES
APPLICABLE STATUTES AND BOARD REGULATIONS
MOTION TO DISMISS
Board Analysis
ACCEPT FOR HEARING
CONCLUSION

February 3, 2005

MORTON F. DOROTHY,

Complainant,

FLEX-N-GATE CORPORATION, an Illinois

(Citizens Enforcement – Air, Land)

ORDER OF THE BOARD (by N. J. Melas):

On September 9, 2004, Morton F. Dorothy filed a six-count citizen’s enforcement

complaint against Flex-N-Gate Corporation (Flex-N-Gate).

See

415 ILCS 5/31(d) (2002); 35 Ill.

Adm. Code 103.204. The complaint concerns Flex-N-Gate’s facility known as Guardian West,

located at 601 Guardian Drive, Urbana, Champaign County where it produces bumpers for

vehicles. The complaint alleges that as a result of an alleged spill of sulfuric acid at the facility

on August 5, 2004, Flex-N-Gate violated the Environmental Protection Act (Act) (415 ILCS 5/1

et seq

. (2002)) and various provisions of the Board’s hazardous waste rules.

This case involves the Resources Conservation and Recovery Act regulations that apply

to facilities that treat, store and dispose of hazardous wastes. A single facility may consist of

several types or combinations of operational units. Treatment, storage, and disposal facility

(TSDF) is a term of convenience, grouping all such facilities together for the purpose of

discussing the regulations.

For the reasons set forth below, the Board denies Flex-N-Gate’s motion to dismiss and

accepts this complaint for hearing.

THE COMPLAINT, MOTIONS, AND RESPONSES

Mr. Dorothy’s September 9, 2004 complaint concerns an alleged August 5, 2004 spill of

sulfuric acid at the Flex-N-Gate Urbana bumper manufacturing facility. Mr. Dorothy alleges that

Flex-N-Gate violated Section 21(f) of the Environmental Protection Act (Act), and Sections

725.151(b), 725.156(j), 725.154(b), 725.154(c) of the Board’s Interim Status Standards For

Owners And Operators Of Hazardous Waste Treatment, Storage, And Disposal Facilities. Mr.

Dorothy alleges that Flex-N-Gate violated these provisions by: (1) operating the facility without

a Resources Conservation Recovery Act (RCRA) permit or interim status; (2) failing to carry out

a contingency plan; (3) failing to notify the Illinois Environmental Protection Agency (Agency);

(4) failing to amend the contingency plan after the alleged spill; (5) failing to amend the

contingency plan in response to changed circumstances; and (6) failing to amend the contingency

plan as required by the plan.

On October 12, 2004, Flex-N-Gate filed a motion to dismiss for failure to state a claim on

which relief can be granted. On October 14, 2004, Mr. Dorothy filed several motions including

motions: (1) to join the Agency as a party in interest; (2) to extend the time for the Agency to

respond to the motion; (3) to accept this matter for hearing; and (4) for expedited discovery. On

October 20, Mr. Dorothy responded to the motion to dismiss. On November 3, 2004, Flex-N-

Gate responded to Mr. Dorothy’s pending motions.

On November 15, 2004, in reply to the respondent’s November 3, 2004 response, Mr.

Dorothy moved the Board for leave to supplement his response to Flex-N-Gate’s motion to

dismiss and also to withdraw his motion to join the Agency as a party in interest.

On November 18, 2004, the Board denied Mr. Dorothy’s motion to accept for hearing

prior to ruling on the motion to dismiss, granted Mr. Dorothy leave to withdraw his motion to

join the Agency as a party in interest, and reserved ruling on the motion for expedited discovery.

APPLICABLE STATUTES AND BOARD REGULATIONS

Section 31(d) of the Act (415 ILCS 5/31(d) (2002)) allows any person to file a complaint

with the Board. Section 31(d) further provides that “[u]nless the Board determines that such

complaint is duplicitous or frivolous, it shall schedule a hearing.”

Id.

;

see also

35 Ill. Adm. Code

103.212(a). A complaint is duplicitous if it is “identical or substantially similar to one brought

before the Board or another forum.” 35 Ill. Adm. Code 101.202. A complaint is frivolous if it

requests “relief that the Board does not have the authority to grant” or “fails to state a cause of

action upon which the Board can grant relief.”

Id.

Within 30 days after being served with a

complaint, a respondent may file a motion alleging that the complaint is duplicitous or frivolous.

35 Ill. Adm. Code 103.212(b).

Section 12(f) of the Act states in pertinent part:

No person shall:

(f) Cause, threaten or allow the discharge of any contaminant into the

waters of the State, as defined herein, including but not limited to,

waters to any sewage works, or into any well or from any point

source within the State, without an NPDES permit for point source

discharges issued by the Agency under Section 39(b) of this Act,

or in violation of any term or condition imposed by such permit, or

in violation of any NPDES permit filing requirement established

under Section 39(b), or in violation of any regulations adopted by

the Board or of any order adopted by the Board with respect to the

NPDES program.

Section 703.123 of the Board’s RCRA permitting regulations provides specific

exclusions from the program:

The following persons are among those that are not required to obtain a

RCRA permit:

e) An owner or operator of an elementary neutralization unit

or wastewater treatment unit, as defined in 35 Ill. Adm.

Code 720.110;

Section 720.110 defines “wastewater treatment unit” as “a device of which the following

is true:”

It is part of a wastewater treatment facility that has an NPDES permit

pursuant to 35 Ill. Adm. Code 309 or a pretreatment permit or authorization

to discharge pursuant to 35 Ill. Adm. Code 310; and

It receives and treats or stores an influent wastewater that is a hazardous

waste as defined in 35 Ill. Adm. Code 721.103, or generates and accumulates

a wastewater treatment sludge that is a hazardous waste as defined in 35 Ill.

Adm. Code 721.103, or treats or stores a wastewater treatment sludge that is

a hazardous waste as defined in 35 Ill. Adm. Code 721.103; and

It meets the definition of tank or tank system in this Section.

Section 720.110 defines facility as:

All contiguous land and structures, other appurtenances, and improvements

on the land used for treating, storing, or disposing of hazardous waste. A

facility may consist of several treatment, storage, or disposal operational

units (e.g., one or more landfills, surface impoundments, or combinations of

them).

* * *

Section 720.110 defines “tank” or “tank system” as:

“Tank” means a stationary device, designed to contain an accumulation of

hazardous waste that is constructed primarily of non-earthen materials (e.g.,

wood, concrete, steel, plastic) that provide structural support.

“Tank system” means a hazardous waste storage or treatment tank and its

associated ancillary equipment and containment system.

MOTION TO DISMISS

For purposes of ruling on a motion to dismiss, all well-pled facts contained in the

pleading must be taken as true and all inferences from them must be drawn in favor of the non-

movant. People v. Stein Steel Mills Services, Inc., PCB 02-1 (Nov. 15, 2001). A complaint

should not be dismissed for failure to state a claim

unless it clearly appears that no set of facts

could be proven under the pleadings that would entitle complainant to relief. Shelton v. Crown,

PCB 96-53 (May 2, 1996).

Section 101.504 of the Board’s procedural rules regarding the content of motions and

responses states:

All motions and responses must clearly state the grounds upon which the motion

is made and must contain a concise statement of the position or relief sought.

Facts asserted that are not of record in the proceeding must be supported by oath,

affidavit, or certification in accordance with Section 1-109 of the Code of Civil

Procedure [735 ILCS 5/1-109]. A brief or memorandum in support of the motion

or response may be included.

Flex-N-Gate’s did not support the motion to dismiss with an affidavit. However,

attached to its response to Mr. Dorothy’s motions to accept for hearing and for expedited

discovery, Flex-N-Gate attached affidavits from three employees that support the facts set forth

in Flex-N-Gate’s motion to dismiss. For this reason, the Board will consider Flex-N-Gate’s

motion.

The Parties’ Arguments

Summary of the Parties’ Arguments

Flex-N-Gate does not admit any factual allegations of the complaint. Flex-N-Gate argues

that regardless, even if all of the facts alleged were true, the complaint fails to state a claim on

which relief can be granted. Accordingly, Flex-N-Gate moves the Board to dismiss the

complaint in its entirety. Flex-N-Gate maintains that different wastestreams at the Urbana

facility are exempt from RCRA permitting requirements under different exemptions. Under the

complaint, Flex-N-Gate claims that the wastestream at issue is exempt under the exclusion for

“wastewater treatment units.”

Flex-N-Gate asserts that in ruling on this motion, the Board must take all well-pled facts

in the pleading as true, and all inferences from them must be viewed in a light favorable to the

non-movant. Mot. at 2; citing Lone Star Indus., Inc. v. IEPA, PCB 03-94 (Mar. 6, 2003). Flex-

N-Gate emphasizes, however, that the Board “must also disregard mere conclusions of law or

fact unsupported by the facts alleged.” Mot. at 3; citing Oravek by Brann v. Community School

Dist. 146, 264 Ill. App. 3d 895, 898 (1st Dist. 1994). Flex-N-Gate further notes that the

complaint must allege facts sufficient to state a claim on which relief can be granted.

Mr. Dorothy maintains that this proceeding involves an incident where sulfuric acid

spilled onto hazardous waste, resulting in a release of hydrogen sulfide, a toxic gas. Citing no

caselaw in support of his arguments, Mr. Dorothy asserts that the accident demonstrated the

inadequacy and inefficiency of Flex-N-Gate’s contingency plan. Resp. at 1.

In his supplemental response to the motion, Mr. Dorothy contends that Flex-N-Gate’s

response to Mr. Dorothy’s motion to join the Agency as a party of interest disposes of many

arguments made in the motion to dismiss. Flex-N-Gate claims exemption under Section

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. Mr. Dorothy asserts that consequently, Flex-N-Gate

must have a contingency plan for the “facility,” a term that is defined as one or more treatment,

storage, or disposal operational units. 35 Ill. Adm. Code 720.110, 722.134(a), 725.151.

Count I: Operating Without a RCRA Permit or Interim Status

In the first count of the complaint, Mr. Dorothy contends Flex-N-Gate is operating a

hazardous waste treatment and storage facility without a RCRA permit or interim status in

violation of Section 21(f) of the Act and Section 703.121(a) of the Board’s regulations. Compl.

at 4; citing 415 ILCS 5/21(f) (2002); 35 Ill. Adm. Code 703.121(a). Both the Act and Board

regulations require all TSDFs to obtain an Agency-issued RCRA permit for the hazardous waste

management facility.

Regarding count I of the complaint, Flex-N-Gate asserts that the treatment system at the

facility is a “wastewater treatment unit,” and therefore, no RCRA permit or interim status is

necessary. Flex-N-Gate asserts that the treatment system at the facility meets the definition of

“wastewater treatment unit” as defined in Section 720.110 of the Board’s regulations.

According to Flex-N-Gate, the treatment system discharges wastewater into a publicly

owned treatment works (POTW), treats a hazardous waste influent, and that the coated floor and

sump at the facility are included in the definitions of “tank” or “tank system.” Therefore, argues

Flex-N-Gate, the facility’s treatment system is a wastewater treatment unit exempt from RCRA

permitting requirements under section 703.123(e).

Mr. Dorothy maintains that Flex-N-Gate is conducting a hazardous waste treatment,

storage, or disposal operation without a RCRA permit and without interim status. In his

response, Mr. Dorothy stated it is the respondent’s burden to show that the facility falls within an

exclusion. Resp. at 2. Mr. Dorothy further contends that a RCRA permit is a “facility permit”

and Flex-N-Gate has not shown that the entire facility is exempt from permit requirements, but

rather argued only that one unit is exempt. Resp at 3. Mr. Dorothy asserts that Flex-N-Gate

must show that all treatment or storage and disposal units, including the units at the facility for

drying and storing hazardous waste sludge, and the paint line, are exempt.

Mr. Dorothy argues the Flex-N-Gate facility is subject to RCRA and, consequently, must

have a contingency plan for the facility that meets Occupational Safety and Health

Administration (OSHA) requirements. The contingency plan would not be required if the

facility were exempt as “elementary neutralization units” or “wastewater treatment units.” Resp.

at 4. However, Mr. Dorothy claims that Flex-N-Gate must make these assertions by way of

affirmative defense, not by means of a motion to dismiss.

Count II: Failure To Carry Out Contingency Plan

In count II of the complaint Mr. Dorothy claims Flex-N-Gate violated Section 725.151(b)

of the Board’s rules because it failed to properly carry out its contingency plan in response to the

spill. Compl. at 4-5; citing 35 Ill. Adm. Code 725.151(b). Flex-N-Gate contends that because

the treatment system at the facility is a “wastewater treatment unit,” as discussed above, it is

exempt from the contingency plan requirement of Section 725.151(b). In a footnote, Flex-N-

Gate notes that an exception exists for owners of wastewater treatment units that dilute

hazardous ignitable wastes or reactive (D003) waste in order to remove the characteristic before

land disposal. 35 Ill. Adm. Code 725.101(c)(10). However, Flex-N-Gate notes that because the

facility discharges into a POTW, the facility falls into the exempt category.

Flex-N-Gate argues that even assuming Section 725.151(b) did apply, the alleged spill

did not trigger the contingency plan provision because there was no fire, explosion, or release of

“hazardous waste” or “hazardous waste constituents” as required by Section 725.151(b). Mot. at

First, Flex-N-Gate states that Mr. Dorothy did not allege there was any fire or explosion.

Second, Flex-N-Gate contends that hydrogen sulfide gas does not constitute a hazardous waste or

hazardous waste constituent. Flex-N-Gate asserts that hydrogen sulfide gas is not a “waste” for

the purposes of RCRA, as Board regulations define the term “hazardous waste.” Mot. at 9;

citing 415 ILCS 5/3.220. According to Flex-N-Gate, Section 3.535 defines waste as “any

garbage, sludge from a waste treatment plant, water supply treatment plant, or air pollution

control facility or other discarded material, including solid, liquid, semi-solid, or contained

gaseous material…” 415 ILCS 5/3.535. Flex-N-Gate states that the alleged hydrogen sulfide

gas was not “waste” regulated by RCRA because, as alleged, it wasn’t contained. Mot. at 10;

citing Helter v. AK Steel Corp., (1997); Hazardous Waste Management System: Identification

and Listing of Hazardous Waste CERCLA Hazardous Substance Designation; Reportable

Quantity Adjustment, 54 FR 50968, at 50973 (Dec. 11, 1989).

Flex-N-Gate alleges that the hydrogen sulfide gas was also not a “hazardous waste

constituent.” Flex-N-Gate cite Section 720.110 of the Board regulations that define hazardous

waste constituents as “a constituent that caused the hazardous waste to be listed in 35 Ill. Adm.

Code 721.Subpart D, or a constituent listed in 35 Ill. Adm. Code 721.124.” 35 Ill. Adm. Code

720.110. Flex-N-Gate contends that because hydrogen sulfide is not listed in either section,

hydrogen sulfide is not a hazardous waste constituent for the purposes of RCRA. Accordingly,

Flex-N-Gate moves the Board to dismiss count II of the complaint.

Mr. Dorothy contends that if there is at least one non-exempt unit at the facility, then

Section 725.151 requires a contingency plan for the entire facility. Resp. at 5. Mr. Dorothy

states that OSHA rules also require the owner or operator of a facility to prepare an “Emergency

Response Plan.”

. at 6.

Mr. Dorothy states that hydrogen sulfide is both a hazardous waste, listed as U135 in Part

721, and a hazardous waste constituent, listed in Appendix H of Part 721. Mr. Dorothy also

notes that Section 721.123(a)(5) defines one type of DOO3, as a sulfide that when exposed to pH

conditions between 2 and 12.5 can generate toxic gases, vapors, or fumes in a way that presents a

danger to human health or the environment. 35 Ill. Adm. Code 721.123(a)(5). Mr. Dorothy adds

that the contingency plan requirement applies whether the hydrogen sulfide gas is contained or

not.

Finally, Mr. Dorothy contends that Flex-N-Gate waived the argument that Part 725 does

not apply when it prepared a contingency plan for the facility. Resp. at 7.

Count III: Failure to Report the Incident to the Agency

According to Mr. Dorothy, Flex-N-Gate violated Section 725.156(j) by failing to report

the sulfuric acid spill to the Agency within 15 days. Compl. at 6; citing 35 Ill. Adm. Code

725,156(j). Flex-N-Gate asserts that not only is their wastewater treatment unit exempt from the

entire Part 725, but Section 725.156(j) only applies to an “incident that requires implementing

the contingency plan.” Mot. at 12; citing 35 Ill. Adm. Code 725.156(j). Flex-N-Gate contends

that because no fire or explosion occurred and hydrogen sulfide gas is not a waste or hazardous

waste constituent, the alleged release did not require Flex-N-Gate to implement any contingency

plan. For these reasons, Flex-N-Gate moves the Board to dismiss this count.

Again, Mr. Dorothy argues that by preparing a contingency plan, Flex-N-Gate has

waived any argument that it was not required to prepare such a plan. Resp. at 8.

Count IV: Failure to Amend the Contingency Plan to Address the Release

Count IV of the complaint asserts that Flex-N-Gate violated Section 725.154(b) of the

Board’s regulations by failing to amend its contingency plan in response to the alleged spill.

Compl. at 6-7; citing 35 Ill. Adm. Code 725.154(b). Under this section of the Board’s

regulations, the owner or operator must review the facility’s contingency plan if that plan fails in

an emergency.

Flex-N-Gate argues it did not violate Section 725.154(b) because the alleged release did

not trigger the need for implementing any contingency plan. Mot. at 13. Flex-N-Gate reiterates

that Part 725 does not apply to Flex-N-Gate’s wastewater treatment unit. Further, Flex-N-Gate

contends that Section 725.154(b) only applies where a contingency plan fails. Accordingly,

because the alleged release did not trigger the contingency plan, the plan could not have failed.

Mr. Dorothy maintains that the contingency plan failed in this incident regardless of

whether the incident triggered the plan because the safety officer did not know what a hydrogen

sulfide meter was or whether the facility had one. Resp. at 8. Mr. Dorothy alleges that workers

did not have the proper training or equipment to address the release, a fact he blames on a

deficiency of the contingency plan.

Count V: Failure to Amend the Contingency Plan in Response to a Change in the Facility

In the complaint, Mr. Dorothy alleges that Flex-N-Gate violated Section 725.154(c) for

failing to amend its contingency plan in response to the alleged release. Compl. at 7-8. In

moving to dismiss this count, Flex-N-Gate argues that in addition to the arguments set forth

above, the alleged release did not trigger implementation of a contingency plan. Therefore,

according to Flex-N-Gate, by definition no “emergency” for the purposes of Section 725.154(c)

occurred. For these reasons, Flex-N-Gate moves the Board to dismiss count V of the complaint.

Mr. Dorothy maintains that Flex-N-Gate changed its operation several months before the

incident when Flex-N-Gate began using High Sulfur Additive-90 in its process. Mr. Dorothy

contends that pursuant to Section 725.154(c), Flex-N-Gate should have amended the contingency

plan in response to the “changed operations.” Resp. at 9.

Count VI: Failure to Carry Out the Contingency Plan as Required by the Plan

In count IV, Mr. Dorothy alleges Flex-N-Gate violated Section 725.151(b) of the Board’s

regulations by failing to carry out the contingency plan in response to the alleged sulfuric acid

spill. Compl. at 9, 19; citing 35 Ill. Adm. Code 725.151(b). For the reasons discussed above,

Flex-N-Gate again asserts it was under no obligation to carry out the obligations of the

contingency plan because nothing triggered its application. Mot. at 15.

Mr. Dorothy claims that whether required or not, Flex-N-Gate prepared a contingency

plan and represented to the Agency, Emergency Services and Disaster Agency, and Urbana Fire

Department that the plan was prepared to meet the requirements of Part 725. Resp. at 10. As a

result, argues Mr. Dorothy, Flex-N-Gate is “estopped from arguing that it intentionally failed to

prepare an OSHA emergency response plan by relying on a sham RCRA plan.”

Board Analysis

Mr. Dorothy alleges that Flex-N-Gate falls within a category of facilities that is regulated

under RCRA, yet does not have a RCRA permit or interim status. Flex-N-Gate contends it does

not have a RCRA permit or interim status because each hazardous wastestream at the facility

falls under one exclusion or another from RCRA permitting and interim status requirements.

Illustrating this point, contends Flex-N-Gate, the alleged release occurred from a wastestream

that qualifies as an excluded wastewater treatment unit at the facility. For these reasons, Flex-N-

Gate argues the complaint must be dismissed because it fails to state a claim on which the Board

can grant relief.

Mr. Dorothy maintains that Flex-N-Gate is a large quantity generator of hazardous waste

that is required to prepare and follow a contingency plan for the facility regardless of any other

exemptions it might claim. Supp. Resp. at 2. Similarly, Mr. Dorothy argues that Flex-N-Gate is

also required to have a RCRA permit unless it can demonstrate compliance with the conditions

applicable to large quantity generators of hazardous waste.

.; citing 35 Ill. Adm. Code

722.134(a).

The Board denies Flex-N-Gate’s motion to dismiss. The Board finds that Mr. Dorothy’s

complaint indeed states a claim for which the Act and Board regulations provide a remedy and is

legally sufficient. 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 of facts that could entitle Mr. Dorothy to relief.

Accordingly, the Board denies Flex-N-Gate’s motion to dismiss and accepts the petition

for hearing. The Board expects that additional facts and evidence regarding the alleged spill and

conflicts between the conditions of Flex-N-Gate’s various permits or exclusions from them and

the referenced statues and regulations will be disclosed at hearing and in further pleadings.

ACCEPT FOR HEARING

The Board accepts the complaint for hearing.

See

415 ILCS 5/31(d) (2000); 35 Ill. Adm.

Code 103.212(a). A respondent’s failure to file an answer to a complaint within 60 days after

receiving the complaint may have severe consequences. Generally, if Flex-N-Gate fails within

that timeframe to file an answer specifically denying, or asserting insufficient knowledge to form

a belief of, a material allegation in the complaint, the Board will consider Flex-N-Gate to have

admitted the allegation. 35 Ill. Adm. Code 103.204(d).

The Board directs the hearing officer to proceed expeditiously to hearing. Among the

hearing officer’s responsibilities is the “duty . . . to ensure development of a clear, complete, and

concise record for timely transmission to the Board.” 35 Ill. Adm. Code 101.610. A complete

record in an enforcement case thoroughly addresses, among other things, the appropriate remedy,

if any, for the alleged violations, including any civil penalty.

If a complainant proves an alleged violation, the Board considers the factors set forth in

Sections 33(c) and 42(h) of the Act to fashion an appropriate remedy for the violation.

See

415

ILCS 5/33(c), 42(h) (2000). Specifically, the Board considers the Section 33(c) factors in

determining, first, what to order the respondent to do to correct an on-going violation, if any,

and, second, whether to order the respondent to pay a civil penalty. The factors provided in

Section 33(c) bear on the reasonableness of the circumstances surrounding the violation, such as

the character and degree of any resulting interference with protecting public health, the technical

practicability and economic reasonableness of compliance, and whether the respondent has

subsequently eliminated the violation.

If, after considering the Section 33(c) factors, the Board decides to impose a civil penalty

on the respondent, only then does the Board consider the Act’s Section 42(h) factors in

determining the appropriate amount of the civil penalty. Section 42(h) sets forth factors that may

mitigate or aggravate the civil penalty amount, such as the duration and gravity of the violation,

whether the respondent showed due diligence in attempting to comply, any economic benefit that

the respondent accrued from delaying compliance, and the need to deter further violations by the

respondent and others similarly situated.

Accordingly, the Board further directs the hearing officer to advise the parties that in

summary judgment motions and responses, at hearing, and in briefs, each party should consider:

(1) proposing a remedy for a violation, if any, including whether to impose a civil penalty, and

supporting its position with facts and arguments that address any or all of the Section 33(c)

factors; and (2) proposing a civil penalty, if any, including a specific dollar amount, and

supporting its position with facts and arguments that address any or all of the Section 42(h)

factors.

CONCLUSION

The Board denies Flex-N-Gate’s motion to dismiss and accepts the complaint for hearing.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on February 3, 2005, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board