RECE!VED
CLERK’S OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
SEP
0
‘2005
STATE OF ILLINOIS
MORTON
F.
DOROTHY,
)
Pollution Control Board
)
Complainant,
)
)
vs.
)
No.
PCB 05-049
FLEX-N-GATE CORPORATION,
an Illinois
Corporation,
)
Respondent.
)
COMPLAINANT’S
MOTION
FOR LEAVE TO REPLY INSTANTER AND REPLY TO
RESPONSE TO COMPLAINANT’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
AS TO
COUNT
I
Complainant Morton
F.
Dorothy makes the following reply to Respondent
Flex-N-
Gate Corporation’s Response to Complainant’s
Motion for Partial Summary Judgment
as to Count
I:
1.
On
June 20,
2005, Complainant served
a
Motion for Partial Summary Judgment
as to Count
I.
2.
On
July 8, 2005,
Respondent filed
a
Response to Complainant’s
Motion for
Partial Summary Judgment
as to Count
I.
3.
On
July
20,
2005, Complainant filed
a
separate Motion for Leave to Substitute
Affidavits addressing some of the
issues raised
in the
Response to
Complainant’s
Motion for Partial Summary Judgment as to Count
I.
4.
On
July
18,
2005,
Complainant filed
a separate Motion for Leave to Reply.
In
order to allow these
motions to proceed
more rapidly to
a
Board decision,
Complainant is withdrawing
the
Motion for Leave to Reply, and
substituting this
Motion
for Leave to Reply
and
Reply
Instanter.
5.
Complainant moves for leave
to reply pursuant to Section
101 .500(c) in
order to
prevent material
prejudice.
a.
Respondent
has, in
the Response, denied the truth of facts which
it has
admitted
in discovery and
in affidavits attached to
its
motions, which facts
Complainant regarded
as established beyond doubt at the time he filed
his
Motion
for Partial Summary Judgment as to
Count
I.
b.
Respondent has mischaracterized Complainant’s arguments,
and
has
advanced arguments that Complainant could
not
have
anticipated.
6.
Although Respondent has admitted
in
response to discovery that it
is engaging
in
hazardous waste operations without
a
RCRA permit, it has not claimed
in
the
Answer that those operations are exempt
from the
RCRA permit requirement.
Based
on the
relevant facts in
the
record
in this
case,
the operation
is therefore
illegal,
independent of the incident alleged
in
the Complaint.
a.
Complainant believes that,
in light of the admissions
made
in discovery
and other documents,
he has established
a
prima facie violation of
Section
21(f) of the Act and that, because Respondent
has not alleged
that it qualifies for any exemption from the
permit requirement,
any facts
supporting
such exemption would be irrelevant.
b.
A decision on the
legal issues
raised by this
motion
would control the
question of whether Respondent has to plead and prove compliance with
the “wastewater treatment unit” exemption which
it is arguing
in
connection with
the
incident, and which
is discussed
in connection with
Respondent’s Motions for Summary Judgment.
c.
Deciding these issues
in
connection with
Complainant’s
motion
has the
advantage that it decides a controlling legal issue without the
Board
having
to deal with the complex factual
issues ofthe
main
part of this
case.
7.
Respondent suggests that,
if the
Board ruled
in favor of Complainant, thatthe
Board
should
allow Respondent to file an amended answer. (Response,
p. 20)
a.
Complainant believes that a
clear and correct ruling on the
issues raised
by this
motion would
clarify the
real issues in this
case,
and would be
important for public policy. Complainant therefore has no objection
to
Respondent’s suggestion.
8.
In summary,
Respondent is arguing that the burden of pleading
non-compliance
with the
permit exemptions
is on the
Complainant,
along with
the
burden of
proving non-compliance with the
permit
exemptions.
a.
As detailed
in
Complainant’s
Response to Motion
for Summary Judgment,
placing the
burden of pleading
on the Complainant would encourage the
confusion that has surrounded this case,
in which Respondent
has
danced around the issue of whether
it claims exemption pursuant to
Section 722.134(a). (Complainant’s Response to Motion
for Summary
Judgment,
p. 6)
b.
As
is also detailed
in
Complainant’s Response to Motion
for Summary
Judgment, Respondent is arguing that there
is
a presumption that any
person managing
hazardous waste without a RCRA permit
is entitled to
an exemption from the
permit requirement, without
even having to
name
the exemption. (Complainant’s
Response to Motion for Summary
Judgment,
p
5
-
7)
For a
person who applies for a
RCRA permit, the
burden of proof is
on that person to show compliance with
the Act and
regulations.
9.
Respondent correctly notes that it has denied the
allegations of Count
I
in
the
Answer. (Response,
p. 5) However,
in the course of discovery,
and
in
arguments
and
attached affidavits,
Respondent
has admitted these allegations.
a.
As
is detailed
in
Complainant’s
substituted affidavit in support of his
Motion
for Partial Summary Judgment,
Respondent has admitted
in
discovery,
and
in other documents,
that it
is treating hazardous waste,
that it
is storing
hazardous waste,
and, that it does
not have
a
RCRA
permit.
b.
It is perfectly proper for
a
party to move for summary judgment whenever
the opposing party admits facts which are dispositive.
10.
Respondent sets forth
a summary of Complainant’s argument on page
5 of the
Response. This
is
not
an accurate characterization of Complainant’s argument,
which would
be as follows:
a.
Complainant alleges that Respondent treats and stores
hazardous waste.
b.
Complainant alleges that Respondent does
not have
a RCRA permit.
c.
Because the Complaint alleges facts that establish
a
prima facie violation
of the
RCRA permit requirement under Section 21(f) of the Act, the
burden of pleading an exemption passes to the
Respondent, who
needs
to raise the
permit exemption defense
by way of answer, affirmatively
plead the facts needed to establish that it qualifies for the exemption,
and
then
prove that it qualifies at the hearing.
d.
Because Respondent
has not
raised the
permit exemption by way of
answer, or pled the facts needed to establish that it qualifies for the
exemption, any evidence that it qualifies for the exemption would be
irrelevant.
11.
Respondent argues that Complainant “does not even identify the alleged legal
principle or other mechanism
...
that Complainant argues
prevents Flex-N-Gate
from
‘introducing
evidence
showing compliance with” the
permit exemptions.
(Response p. 6).
a.
Respondent appears to have
lost sight of the purpose of the complaint
and answer: to frame the
issues
in
the case
in
order to establish what is
relevant
and
material
in discovery and at hearing.
Respondent
has not
alleged in the Answer that it
is qualifies for one or more exemption.
Evidence directed to showing this would therefore
be irrelevant.
12.
Respondent
is also claiming that Complainant is arguing that the Answer must
contain “reasons” for denials, (Response,
p. 7) This also mischaracterizes
Complainant’s
position.
a.
Respondent appears to be arguing that the Complaint alleges that
Respondent
is required to have a
permit, and
Respondent
has denied that
allegation.
On the contrary, the
allegation
is that Respondent
does not
have
a permit. Respondent’s denial therefore amounts to
a false
allegation that it does
have
a permit. The text of the
allegations
are as
follow:
Par.
1 of Count
I of the Complaint alleges:
Respondent
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
35
III. Adm.
Code
703.121(a).
ii.
Respondent’s Answer is as follows:
Flex-N-Gate denies the
allegations of paragraph one of Count
I of
Complainant’s Complaint.
b.
For the Answer to be truthful, Respondent should
have admitted that it did
not have
a permit.
If Respondent wished to raise the issue as to whether it was
required to have
a
permit,
Respondent was, at a
minimum,
required to add
language such as:
Respondent affirmatively alleges that it is exempt from the
permit
requirement pursuant to Section 722.134, and as
a “wastewater
treatment unit” pursuant to
ii.
This would be an affirmative allegation of fact, as opposed
to
“reason for the
denial”.
c.
Respondent’s general denial
did
not
notify Complainant that Respondent
was claiming to be exempt from the permit requirement. A fair reading of
the
denial was that Respondent
was either claiming to have
a
RCRA
permit, or was denying that it was managing hazardous waste.
13.
Respondent cites the
Board’s test of whether
a response to a complaint
constitutes an “affirmative defense” as being whether the response “attacks the
legal right to bring an action, as opposed to attacking the
truth of the
claim”.
(People v.
Skokie Valley Asphalt Co.)
a.
Complainant agrees with the
main thrust of Skokie Valley,
that an
affirmative defense is a defense that does
not “attack the truth of the
claim.”
For example,
in this case,
Respondent should
admit the obvious,
that it is managing
hazardous waste without
a
RCRA permit, and
affirmatively allege compliance with
a
permit exemption.
b.
Complainant believes that the language in
Skokie Valley,
restricting
affirmative defenses to those which
“attack the legal right to bring an
action,”
is overly restrictive.
Although some affirmative defenses, such
legal capacity, certainly go to the
right to
bring the
action,
most affirmative
defenses are “so what” defenses that allow respondent to
bring
in
additional facts that obviate the effect of the laws
the
complainant
relies
on.
For example,
payment can be raised as an affirmative defense
(735
ILCS 5/2-613(d)). Plaintiff alleges a debt. Defendant admits
the validity of the debt,
but alleges affirmatively that he has paid
the
debt.
Plaintiff has the
burden of proving the
debt, defendant has
the
burden of showing payment.
If the defendant is successful,
he
gets a judgment that the
debt is
paid,
as opposed to a dismissal on
the grounds that plaintiff “did
not have the legal
right to bring the
action”.
14.
Respondent appears to now be denying that it is conducting hazardous waste
treatment and storage operations without
a
RCRA permit.
(Response,
p.
12).
a.
Respondent
has admitted that it “does not have
a
‘RCRA permit or interim
status”.
Response to Request to Admit, Response 6)
b.
Respondent has admitted
“that it treats some of its
hazardous waste ‘on-
site
in tanks”.(Response to Request to Admit,
Response 6).
c.
Respondent has sworn that “Following dewatering, sludge
is placed
into
a
satellite accumulation container
in
preparation for placement into 90-day
accumulation containers, where
it is accumulated before it
is shipped off-
site for recycling” (Par.
9, Affidavit of James
Dodson that was attached to
Exhibit C to Respondent’s Motion for Summary Judgment.)
Respondent has also argued that “accumulation”
is somehow
different from “storage”. This distinction
is
not drawn
in
the
definition of “storage”:
“Storage” means the
holding of hazardous waste for
a temporary
period,
at the end of which the
hazardous waste is treated,
disposed of, or stored
elsewhere. (35
III.
Adm. Code
720.110)
d.
Complainant is at a
loss to understand
how Respondent
is able to admit
that it is treating hazardous waste, storing
hazardous waste and does
not
have
a
RCRA permit, and still deny that it is “conducting
hazardous waste
treatment and
storage operations without
a
RCRA permit.”
15.
Complainant believes that whether
he has the
burden of pleading and
proving
non-compliance with
permit exemptions depends in
part
on how the
permit
requirement
and exemptions are worded. (Response
p.
12).
a.
In this
case,
Section 21(f) of the Act prohibits hazardous waste
management operations without
a
RCRA permit with
no reference to any
exemptions.
To
make
out a
prima facie case,
all Complainant has to do
is
show hazardous waste management operations and
no RCRA permit.
The burden then
shifts to Respondent to allege and prove that some other
provision
obviates the effect of Section 21(f) of the Act.
b.
If, on the other hand, Section
21(f) were worded to prohibit hazardous
waste
management operations “without a
RCRA permit or exemption from
a
RCRA
permit”, Complainant would arguably have to allege and
prove
non-exemption.
16.
Respondent
is also claiming that the discovery procedures obviate the
need for
Respondent to declare
in
the Answer the
exemptions
on which
it intends to rely,
and cites Complainant’s success
in
extracting
the correct information
in
discovery as
proof that the traditional
complaint/answer format is not needed.
(Response,
p. 18)
a.
This argument overlooks the fact that Complainant had to anticipate that
Respondent was
going to claim exemptions,
and
had to ask questions
that were technically irrelevant, and therefore
subject to objection, to
discover which exemptions Respondent was
claiming. (Complainant’s
Interrogatories,
Question #3,
Supplemental Interrogatories,
Questions
1(a)-a))
b.
Respondent has objected
in discovery to the number of questions and to
the
need for supplemental discovery.
(Respondent’s Motion for Protective
Order) The course suggested by Respondent would always require at
least two rounds of discovery, the first for complainant
to figure out which
exemption respondent
relies on,
and the
second to ask questions relevant
to that exemption.
17.
Respondent also argues that “The fact that a
party manages hazardous waste
cannot alone be
a sufficient basis for
a
cause of action against that party...”
(Response,
p.
19) However,
Section 21(f) of the Act is worded to say exactly
that. “No person
shall:
...
(f) Conduct any hazardous waste-storage, hazardous
waste-treatment or hazardous waste-disposal operation:
(1) without aRCRA
permit for the
site issued by the Agency under subsection (d) of Section
39 of
this Act
18.
Respondent also argues that,
if the
burden of proving compliance with
the
RCRA
permit exemptions
is on the
Respondent, “the Complainant has a
valid cause of
action against every facility in the
State of Illinois
that generates
hazardous
waste”. (Response,
p.
19)
a.
The RCRA permit requirement attaches only to persons who manage
hazardous waste,
not to generators of hazardous waste.
Complainant
assumes
Respondent
meant “manages” hazardous waste.
b.
Many facilities that manage hazardous waste
have RCRA permits. These
facilities
have obtained
permits from the Agency
in
a proceeding
in
which
they had the
burden of demonstrating compliance with the Act and rules.
c.
Those facilities that are operating under a
claim of exemption from the
RCRA permit requirement have
not gone through
a
permit-like procedure
in which the Agency has certified that their claimed exemption is valid.
As discussed above,
Respondent is arguing that each of these
facilities managing
hazardous waste without
a
permit
is entitled to
a
presumption that their claim of exemption
is valid, without them
even
having to identify the
exemption under which they claim to
operate.
d.
Respondent
is correct that, under Complainant’s argument,
some person
could file enforcement actions against each of these facilities,
forcing
them to identify their claim of exemption
by way
of answer, and
requiring
them to prove that they qualify for the
exemption.
Under Respondent’s argument, however, that person could
do the
same thing
by merely alleging that each facility did not qualify for
any exemption.
ii.
Respondent
is actually
arguing for
a procedure that would
be more
cumbersome for the facilities who would be unable
to raise
exemption in defense until after discovery.
WHEREFORE
complainant prays that the Board grant Complainant’s Motion
for
Partial Summary Judgment as to Count
I,
or,
in
the
alternative, order Respondent
to file
an amended answer naming
the
permit exemptions
it intends to rely on,
and
affirmatively alleging facts to
show that it qualifies for each
exemption.
F ~
-y
Morton
F.
Dorothy, Complainant
Morton
F.
Dorothy
104 West University
Southwest Suite
Urbana,
IL 61801
217/384-1010
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
MORTON
F.
DOROTHY,
Complainant,
vs
FLEX-N-GATE CORPORATION,
an Illinois Corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
No.
PCB 05-049
CERTIFICATE OF SERVICE
I, the undersigned, certify that,
on the
~
day of September, 2005,
I
served
the
listed documents, by first class mail, upon the
listed persons:
COMPLAINANT’S
MOTION
FOR LEAVE TO REPLY
INSTANTER AND REPLY TO
RESPONSE
TO COMPLAINANT’S
MOTION
FOR PARTIAL SUMMARY JUDGMENT
AS TO
COUNT
I
Thomas
G.
Safley
Hodge Dwyer Zeman
3150 Roland Avenue
Post Office Box 5776
Springfield,
IL
62705-5776
Dorothy M. Gunn,
Clerk
Illinois Pollution
Control Board
James R.
Thompson Center
100W. Randolph
Suite 11-500
Chicago,
Illinois 60601
Morton
F.
Dorothy, Complainant
Carol Webb
Hearing Officer, IPCB
1021
North Grand Avenue
East
Post Office Box
19274
Springfield,
IL 62794-9274
Morton
F.
Dorothy
104W University,
SW Suite
Urbana
IL 61801
217/384-1010
