RECEWED

BEFORE THE ILLINOIS POLLUTIONCONTROL BOARD

~JAN

~‘52OO4

MATE TECHNOLOGIES, INC.

)

~3()III

CONTROL

BOARI)

Complainant,

)

)

v.

)

PCB No. 2004-075

)

(Enforcement X)

F.T.C. AMERICA CORPORATION

)

)

Respondent.

)

NOTICE OF FILING

TO:

Carey S. Rosemarin

Law Offices of Carey S. Rosemarin, P.C.

500 Skokie Boulevard, Suite 510

Northbrook, IL 60062

PLEASE

TAKE

NOTICE

that

on

the

5th

day

of

January,

2004

F.I.C

AMERICA

CORPORATION, by and through its attorneys, Jeremy A. Gibson

and

Mitchell Chaban

OfMASUDA,

FUNAI, EIFERT

&

MITCHELL, LTD.,

shall file its

MOTION OFRESPONDENT TO DISMISS OR,

IN

THE

ALTERNATIVE, STRIKE with the OfficeoftheClerk ofthe Pollution Control Board, a

copy ofwhich is hereby served upon you.

Jeremy A. Gibson

Mitchell S.

Chaban

MASUDA, FUNAI,

EIFERT

&

MITCHELL,

LTD.

203

N.LaSalle Street, Suite 2500

Chicago, Illinois

60601

(312) 245-7500

---

PROOF OF SERVICE

I, the undersigned, do

hereby state on oath that I served the foregoing

NOTICE OF FILING

upon Carey S. Rosemarin, Law Offices of Carey S. Rosemarin, P.C. 500

Skokie Boulevard, Suite

510, Northbrook, IL 60062 by placing a copy of the same in a properly addressed, postage

prepaid, envelopes and depositing

the same in the U.S. Mail Chute at 203 N. LaSalle

Street Suite

2500, Chicago, Illinois 60601

on this

~)

day of

,

2004.

~

\u5~-’~

Subscribed an&sworn to before methri~Ls~t~1

~

CHRISTINA M PATFERSON

uay

Oi

_________________

L.~JU’±.

NOTARYPUBLICSTATEOFILUNOIS

~

Notary

Public

N:\SY523\6185\ProfServ\420005.doc

---

RECEWED

BEFORE THE ILLINOIS

POLLUTION CONTROL BOARD

~JA~

-~5

2004

MATE TECHNOLOGIES, INC.

)

Complainant,

)

)

v.

)

PCB No. 2004-075

)

(Enforcement X)

F.T.C.

AMERICA CORPORATION

)

)

Respondent.

)

MOTION OF

RESPONDENT

TO DISMISS OR, IN THE ALTERNATIVE,

STRIKE

Respondent,

F.I.C.

AMERICA

CORPORATION,

by

and

through

its

attorneys,

Jeremy

A.

Gibson

and

Mitchell

S.

Chaban

of Masuda,

Funai,

Eifert

&

Mitchell,

Ltd.,

pursuant to

35

Ill.

Adm.

Code

§

101.500, hereby presents its

Motion to Dismiss or, in

the

alternative, Strike (“Motion”) and states in support, as follows:

I.

Introduction

Complainant,

MATE

TECHNOLOGIES,

INC.

(“Mate”),

has

commenced

a

citizen’s

complaint

(“Complaint”)

against

Respondent,

F.I.C.

AMERICA

CORPORATION

(“FIC”),

pursuant

to

Section

3 1(d)

of

the

Illinois

Environmental

Protection

Act (“Act”), 415

ILCS

5/31(d),

for alleged violations ofthe Act

and/or Illinois

Pollution

Control

Board

(“Board”)

regulations

thereunder.

The

Complaint

concerns

FTC’s

operations after March

2002

at the industrial real property at

750 Rohiwing Road,

Itasca, Illinois (“Property”), which Mate is leasing to FIC.

The Complaint

has

nine counts,

each

of which

involves

substantially the same

core

allegations:

the

alleged

emission

and

settlement

of

certain

oily

or

non-oily

particulates

in

the

course of FIC’s

welding

and assembling of metal

automotive

parts

at

---

the

Property.1

Counts

I

through

VII

allege ‘that the

settlement

of such materials

on

interior surfaces of an active manufacturing plant creates an illegal

solid waste storage or

disposal

facility.

Count

VIII

alleges

that

such

emissions

constitute

prohibited

air

pollution

under

the

Act,

even

though

workplace

indoor

air

emissions

are

regulated

specifically by the federal Occupational Safety and Health Agency (“OSHA”) pursuant to

the

federal

Occupational

Safety

and

Health Act

(“OSH

Act”).2

Count

IX

alleges

that

related rinsing of the dusts and truck

dock resulted in prohibited drain discharges.

Respondent moves

that

the Complaint be

dismissed

in

its

entirety

because it

is

“frivolous” or “duplicitous” for purposes of Section

3 1(d),

as well as legally and factually

insufficient.3

The

Complaint

on

its

face

simply

depicts

the

routine

operation

and

maintenance of a metal parts

plant, which

as a matter of law are outside the scope of the

cited authorities.

In order to harass FTC into lease concessions, Mate is stretching the Act

in unprecedented, unintended, hyper-literal

and illogical

ways, without taking regulatory

context

into

consideration,

and manufacturing “violations”

so

as to

convert a landlord-

tenant

“ordinary wear

and

tear”

contract

disagreement into

some

sort of public

threat.

This misuse of the citizen’s complaint mechanism

should not be tolerated.

As

explained below:

(a)

Counts

I

through

VII

are

deficient

on

their

face

because

they

attempt

to

apply solid waste requirements to permitted air

emissions that were not

wastes,

including

because

such

matter

had

not

yet

been

discarded,

stored

or

disposed;

Although FTC

will contest Mate’s factual allegations

vigorously if necessary,

it treats them as

true

for

purposes of the Motion.

229

U.S.C.

§651.

Unless stated otherwise,

the format “Section

“refers to a section

of the Act, 415

ILCS

5/1

et seq.

2

---

(b)

Count

VIII

is

de~ficienton

its

face

because

it

fails

to

allege

violations

of

air pollution

‘control

standards

or

specific

air

quality

samples

or

impacts

and

because,

with

respect

to

indoor

emissions,

it

is

preempted by

the

OSH Act;

and

(c)

Count

IX

is

duplicative of an

ongping

proceeding

by

the Illinois

Environmental

Protection

Agency

(“Agency”), which

action

FTC

believes

was

instigated erroneously by Mate; and

(d)

Portions of Counts Il-Vil seek relief that cannot be granted.

Accordingly,

the

Complaint

should

be

dismissed

or,

in

the

alternative,

the

deficient

counts or portions should be stricken.

II.

Argument

A.

Counts I through VII are Frivolous and Legally and Factually Insufficient

The Complaint alleges

the following solid waste violations in connection with the

alleged emission and settlement of a “film” ofparticulates:

Count

I;

failure

to

store

used

oil

in

tanks

or

other

approved

units.

§739.122(a);4

Count

II;

failure

to

obtain

a

Resource

Conservation

and

Recovery Act

(“RCRA”)

permit for hazardous waste

storage or disposal,

§703.121(a), or to

file

non-hazardous waste landfill reports,

§

815.201.

§739.181(b);

Count

III; failure to

file non-hazardous waste landfill reports.

§815.201;

Count

IV; failure to determine if waste is hazardous. §722.11;

Count

V;

failure

to

obtain ,a

RCRA

permit

for hazardous waste

storage.

§703.121(a);

~Unless

stated otherwise,

the

fomiat

“~“

refers to a

cited

section of 35

Ill.

Adm. Code.

3

---

Count VI;

failure

to

obtain a RCRA permit

for hazardous waste

disposal.

§703.121(a);

and

Count VII;

failure

to

file

non-hazardous waste

landfill

reports,

§815.201,

Section 21(e).

In

short,

Mate

alleges

that

a

layer

of dust

from

the

intended

operations

of an

active

assembly

plant

has

turned the

Property

into

a

storage

or landfill

facility.

However,

Counts I through VII are deficient on their face because they attempt

to apply solid waste

requirements

to

air

emissions

that

were

not

wastes

and,

in

any

event,

had

not

been

discarded.

As a matter of law and common sense, the only type

of claim that can be stated in

Counts

I through

VII, if any,

is

one pursuant to

the

air pollution

provisions

of the

Act,

because

these allegations

all

concern

air

emissions

associated

with

welding

or

related

assembly units.

The air and waste regimes are distinct.

For example, the solid waste

requirements at issue

in Counts I through VII all

are

premised upon duties that attach to “waste,” which is defined in relevant part as follows:

“Waste’

means

any

garbage, sludge

from

a waste

treatment

plant,

water supply

treatment

plant,

or

air

pollution

control

facility

or

other

discarded

material,

including

solid,

semi-solid,

or

contained

gaseous

material

resulting

from

industrial, commercial, mining and agricultural operations.

.

.

Section

3.535

(emphasis

added).

The alleged substances of concern are outside the scope

of this definition.

First,

air

emissions

are

not

expressly included

in

the

above

definition of “waste”

and

are not

by

definition “waste.”

Instead

air

emissions

are

classified

and

regulated

as

“contaminants”

without

reference

to

being

discarded.

See

Sections

3.1 i5~,

3.165.6

~

~“Air pollution’

is

the presence in the atmosphere of one

or

more

contaminants

(emphasis

added).

4

---

other words,

the mere settlement of air emissions

does not constitute waste.

Nor

should

it; otherwise,

any point where dust or other air emissions settles would be a waste storage

or

disposal

facility

for

purposes

of the

Act.

This

would

be

an

absurd

result

and

effectively would create

a “zero emissions” policy.

What would be

the point of allowing

an

emission?

Consequently,

Counts

I through

VII

cannot involve

waste

as a matter of

law and, as a result, must be dismissed.

Second, settled air emissions

cannot constitute waste until

such time

as they have

been “discarded,” such as either by being swept or wiped up or, perhaps, by abandonment

of the

subject

property.

As

there

appears

to

be

no

relevant

statutory,

regulatory

or

reported opinion

on

point defining or interpreting “discarded,” it

is

relevant

to

consider

the following dictionary entry in pertinent part:

“discard

.

.

.

to

get

rid

of as

useless or unpleasant

.

.

.

implies

the

letting

go

or

throwing away

of something that has become useless or superfluous..

.

Webster’s

Ninth

New

Collegiate

Dictionary

(1991)

(emphasis added).

Thus,

the

past

tense

form,

“discarded,”

must mean

to

have

taken

the

acts of collecting

a

substance or

material and determining that a substance or material will be thrown away.

Yet, the core of Mate’s

allegations is simply the presence of certain particulates in

an active manufacturing facility

as

a

result of its intended use.

Mate did

not (with

good

reason)

allege

that

the Property has been

abandoned, that

FTC

would

not

or could not

periodically

conduct janitorial

or

maintenance

activities

at

the

Property,

or

that

FTC

mishandled

substances

after

they

had

been

collected

or

stored.

Instead,

Mate

is

attempting

to

apply the requirements

cited

in

Counts

I through

VII before any

“waste”

has

been

generated

by

being

discarded.

Mate’s

premature

application

of

regulatory

6

“Contaminant’

is

any solid,

liquid,

or gaseous’matter, any odor, or any form of energy, from whatever

source.”

5

---

duties

should be rejected;

such duties cannot attach until,

at a minimum, the materials of

concern have

been affirmatively collected

and

identified and

a

handling

determination

has been made.

The

mere

existence

or

presence

of

a

material

in

an

active

facility

that

may

eventually require certain regulated management does not mean it is awa~te

or somehow

has

been

“passively”

discarded.

For

example,

the

Board

previously

has

ruled

in

a

citizen’s

complaint case that chipped and peeling lead-based paint throughout a structure,

which apparently

emitted

dust or particulate

into

soil

and

elsewhere, was not

a

“waste”

because it

had

not

yet

been

discarded.

Boyer

v.

Harris,

PCB

96-15

1

(September

4,

1997).

In contrast, FTC has not located

any precedent or authority for the proposition that

waste management

requirements apply

to material

in a manufacturing facility actively in

use, where

such material

has

not

yet

even

been

collected

and

handled for purposes of

eventual

storage,

treatment

or

disposal.

Accordingly,

the

materials of concern

cannot

have been discarded and Counts

I

through

VII are deficient as a matter oflaw.

Third,

to

the

extent

that

Counts

I-Vu

involve

indoor

workplace

air

emissions,

they are preempted by the OSH Act as discussed forpurposes of Count VIII.

Fourth,

Counts II,

III, V,

VI and VII should be

dismissed or stricken to the extent

they

are

based

upon

“storage”

or

“disposal”

of wastes

or

upon

the Property

being

a

“landfill.”

The

Complaint

does

not

allege

any

factual

basis

for

inferring

that

FTC

intended to

allow settled particulates to

remain in place permanently or that

FTC operated

a waste storage, treatment or disposal facility.

6

---

Fifth,

Count

I

should be

dismissed

or

stricken because the .cited

authorities

are

premised upon storage of used oil in tanks and tanks are used to

stored liquids.

However,

the Complaint does not allege that the materials ofconcern are liquids.

B.

Count VIII is Frivolous and Legally and Factually Insufficient

Count VIII alleges a violation of the following provision of the Act:

“No person shall:

(a) Cause

or threaten or allow the discharge or emission of any

contaminant into the environment in

any State

so as

to

cause or tend to cause air

pollution

in

Illinois,

either alone or in

combination with contaminants from other

sources, or

so as

to violate regulations orstandards

adopted by the Board.

.

.

415

ILCS

5/9(a)

(emphasis

added).

In short,

the relevant prohibition

applies to

certain

“air pollution” and/or violation of regulations or standards.

The latter issue

is

not applicable here.

Mate has not alleged that

emissions

at the

Property

violated

any

specific

permit

requirement,

emission

limitation

or

other

air

pollution control law pursuant to

the Act.

(lEn

fact, the welding

and assembly operations

of

concern

are

exempt

specifically

from

permitting

and

related

requirements,

§~201.l46(y),720l.l46(aa).8)

Instead,

Mate simply makes

superficial, conclusory

and

legally

insufficient

allegations

that

oily

particulate

emissions

from

the

welding

and

assembly operations constitute prohibited “air pollution.”

(~73) This is insufficient.

The Act provides the relevant definition as follows:

“Air pollution’

is the presence in the

atmosphere of one

or more contaminants in

sufficient

quantities

and of such characteristics

and

duration as to

be

injurious

to

human,

plant,

or

animal

life,

to

health,

or

to

property,

or

as

to

unreasonably

interfere with the enjoyment of life or property.”

415

ILCS

5/3.115

(emphasis

added).

Accordingly,

Mate

summarily

alleges

injury

to

health or property and “unreasonable” interference with enjoyment ofproperty.

(~J73)

~“Brazing, soldering, wave soldering or welding equipment,

including

associated ventilation hoods

.

.

.

~“Equipment for carving, cutting,

routing, turning,

drilling, machining,

sawing, surface grinding, sanding,

planning, buffing.

.

.

metals.

.

.

where

‘such equipment

is

.

.

.

exhausted

inside a building

7

---

These

ungrounded

allegations of “harm”

are legally

and

factually insufficient to

provide the basis

for a claim,

particularly where,

as here, there

is no

alleged violation of

applicable

air

pollution

control

regulations

or

standards

and

the

Board’s

regulations

exempt

the relevant activities from air permitting.

For instance,

the Act requires specifically that an enforcement complaint describe

the manner and extent ofthe alleged violation, 415

ILCS

5/31 (c)( 1).

Similarly, the Board

requires a s~ubstantive

basis for a case to proceed:

“The complaint must

.

.

.

contain:

.

.

.

The dates,

locations,

events,

nature,

extent,

duration,

and strength

of discharges or emissions and

consequences

alleged to

constitute

violations

of the

Act

and

regulations.

The

complaint

must

advise

respondents of the extent and nature of the alleged violations to reasonably allow

preparation ofa defense.”

§

103.204(c) (emphasis added).

Yet,

Count

IX

contains

no

allegations

regarding

air

quality,

either

indoors

or

outdoors (such as at the property boundary),

or description of any injuries caused thereby,

whether to persons or property.

For example,

Count

IX identifies

no

specific

individual

or public health consequences and effects whatsoever arising from the alleged

emissions,

such

as

coughing,

wheezing,

allergic

reactions,

hospitalizations,

deaths

or

other

identifiable

harms.

Similarly,

Mate

has

made

no

allegations

of substantial

soil

or

groundwater contamination resulting from

alleged emissions.

As

a landlord, Mate is not

in possession of, and has no right to the use or enjoyment

of, the Property and,

so,

cannot

complain

under the

Act about the Property condition.

Furthermore, Mate has not alleged

that

FTC neglected to periodically clean and

maintain the Property ofany “film” and

Mate

itself acknowledges

FTC’s cleaning activities,

such as pressure washing.

(~J~9-10)

8

---

For

instance,

FTC

has not

located

any precedent for a

landlord filing

a citizen’s

complaint

against its

tenant

regarding

indoor

conditions,

much

less

where

no

specific,

substantive harm is alleged to health or the environment, or where the subject property is

in active

use.

In contrast, Board citizen air pollution precedents typically

involve third-

party neighbors

who

allege

direct and

significant

injuries,

such respiratory problems and

inabilities

to

use

their

properties

for

their

intended

uses,

and

typically

provide

that

actionable

property

interference

does

not

include

“trifling

inconvenience,

petty

annoyance and minor discomfort.”

See, e.g., Brill

v. Latoria,

PCB 00-219 (June 6, 2002);

Trepanier v.

Speedway Wrecking Co.,

PCB

97-50 (January 6,

2000).

In the absence of substantive

allegations of property damage or harm

to health

or

the environment, the citizen’s complaint process should

not become

a tool for converting

a landlord-tenant dispute

into a statutory environmental

enforcement proceeding.

Where

there

is no alleged pollution control violation,

and there is

a permit

exemption, the intent

of the Act

and

Board rules

to prevent frivolous

actions should be exercised with

careful

scrutiny of the allegations.

Count VIII should be dismissed as insufficient.

In any event,

as

a

matter of law,

Count VIII should be dismissed

or stricken with

respect

to

indoor

air

emissions

and

welding

because state regulation of such

matters

is

preempted by

the

OSH

Act.

OSHA has

promulgated specific

indoor

air contaminant

regulations

and

standards

for

the

workplace,

including

for

general

particulates

and

numerous

specific

substances,

pursuant

to

the

OSH

Act.

§29

C.F.R.

1910.1000.

Similarly,

OSHA

has

regulated

specifically

welding

activities.

§29

C.F.R.

1910.25.

Count VIII primarily concerns indoor air emissions in a workplace arising from welding.

Accordingly, as Illinois

has

not adopted

its

own

occupational

safety regime

to ~supplant

9

---

the federal scheme, or had

such a regime approved

by OSHA, the Act

cannot be used for

purposes of regulating the indoor air emissions

or welding at the Property.

See

29

U.S.C.

667(a);

Gade v.

National Solid

Wastes

Management Association,

505

U.S.

88,

112

S.Ct.

2374

(June

18,

1992)

(U.S.

Supr~meCourt

holds

that

certain

Illinois

environmental

statutes

are preempted

by

the

OSH

Act

and

unenforceable where

they regulate

matters

addressed

by

OSHA

standards,

even if such

state

laws have

non-workplace objectives

and do

not expressly conflict with the OSHA standards.)

C.

Count IX is Duplicitous

Section

31(d) provides

that

there should be

no

hearing for

a

duplicitous

matter.

“Duplicitous” means “the matter is identical or substantially similar to one brought before

the Board

or another forum.”

§101.202.

Count

IX

alleges

that

on

October

1,

2003

FTC

discharged

certain

pressure

washing rinsate into

storm sewers at the Property in violation of Section

12(a),

415

ILCS

5/12(a), and §309.102(a).

(1~J9-10,75-87.)

On

October

1,

2003,

the Agency

inspected

the Property

and

initiated

a

formal

investigation

of the

identical

or substantially

same circumstances

and

laws

alleged

by

Count

IX.

Attached

to

the

Motion

is

a true

and

correct

copy

of the Agency’s

dated

November

3,

2003

notice

of alleged

violation

letter,

W-2003-00422

(“Notice”),

and

FTC’s December

16,

2003 response thereto.

As

set

forth

in Attachment A to

the Notice,

the

Agency

alleges

that

on

October

1,

2003

FTC

discharged certain pressure

washing

rinsate into storm sewcrs at the Property in violation ofSection

12(a)

and §309.102(a).

10

---

Because

Count

IX

is

identical

or

substantially similar

to

the

allegations

being

prosecuted by

the

Agency

pursuant

to

its

statutory

enforcement

authority,

it

should

be

dismissed as duplicitous for purposes ofSection 31(d).

D.

Counts Il-VIII Seek Relief that cannot be Granted

Certain ofthe relief requests should be

stricken as a matter oflaw

as the requested

relief cannot be granted because it bears

no relation to the alleged violation of the Act or

is unsupported by Board precedent.

The “paperwork” violations alleged in

Counts II-VIT,

where the cited authorities do not prohibit the existence, emission or settlement of oily or

non-oily particulates

in

an

active

industrial

facility,

cannot be

the basis

for remediation

relief.

Similarly,

Count VIII cannot be the basis for remediation relief

Counts

II through VII

allege

violations

of requirements that

do

not

prohibit

or

regulate the existence, emission or settlement of particulates.

For instance:

Count

TI

alleges

that

FTC

failed

to

obtain

a RCRA permit

for haz~irdous

waste

storage or disposal,

§703.121(a),

or

to

file

non-hazardous

waste

landfill

reports, §815.201,

in violation of §739.181(b);

Count

III

alleges

that

FTC

failed

to

file

non-hazardous

waste

landfill

reports in violation of~S815.20l;

Count

IV

alleges

that

FTC

failed

to

determine if waste

is

hazardous

in

violation of §722.11;

Count

V

alleges

that

FTC

failed

to

obtain

a

RCRA permit

for hazardous

waste storage in violation of~703.121(a);

Count

VI

alleges

that

FIC

failed

to

obtain

a RCRA permit for hazardous

waste disposal in violation of §703.121(a); and

11

---

Count

VII

alleges

that

FTC

failed to obtain

a RCRA permit

for hazardous

waste disposal.

§703.12.1(a).

The relief

request

for

remediation

in

Paragraph

C

of each

of these

counts

should

be

stricken

because

the

existence,

emission,

settlement

or

handling

of

oily

or

non-oily

particulates

at

the Property cannot be related

to,

or proximately caused

by,

a failure

to

undertake any of the cited, alleged obligations.

In addition,

Count VIII cannot be the basis for remediation relief with

respect to

prohibited indoor air pollution injuries because the OSH Act, as set forth above, preempts

these

matters.

Likewise,

Count

VIII

cannot

be

the

basis

for

remediation

relief with

respect to prohibited outdoor

air pollution injuries to the Property because the

Complaint

does

not

allege

that

FTC

violated

any

specific

permit

or

performance

standard

requirement

or

allege

any

specific

outdoor

contamination

of

the

Property

of

any

applicable

soil

standard.

Furthermore,

FTC

has

not

located

any

Board

precedent

for

remediation

in

a

prohibited

air pollution

case

involving

dust,

fumes

or

particulates.

Therefore,

the

request for remediation

relief

in

Paragraph

C

of Count

VIII

should

be

stricken.

12

---

III.

Conclusion

For the

foregoing reasons, the Complaint is

frivolous

or duplicitous or legally or

factually

insufficient

and

should

be

dismissed

in

its

entirety.

In

the

alternative,

the

deficient counts or portions described above

should be

stricken.

Respectfully submitted,

‘v

~-O~eofth~

orney~forRespondent

Jeremy A. Gibson

Mitchell S. Chaban

MASUDA, FUNAI, EIFERT & MITCHELL,

LTD.

203 North LaSalle

Street, Suite 2500

Chicago, Illinois

60601

13

---

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

1021

NORTH

GRAND AVENUE

EAST,

P.O.

Box 19276,

SPRINGFIELD,

ILLINOIS

62794-9276

JAMES

R.

THOMPSON

CENTER,

100

WEST

RANDOLPH, SUITE

11-300,

CHICAGO,

IL

60601

ROD

R.

BLAGOJEVICH,

GOVERNOR

RENEE

CIPRIANO,

DIRECTOR

CERTIFIED MAIL~

7002 3150

0000

1226

1361

RETURN RECEIPT REQUESTED

November

3, 2003

Mr.

Akria Ohama, President

FIC America

485 E; Lies Road

Carol

Stream, IL

60188

Re:

Violation Notice:

W-2003-00422

Facility

I.D.:

CAS00001S

Dear Mr. Oharna:

This

constitutes

a

Violation Notice

pursuant to

Section

31(a)(l)

of the

illinois

Environmental

Protection

Act,

415

ILCS

5/3l(a)(l),

and

is

based

upon

review

of available

information

and

investigation

by

representatives

of

the

Illinois

Environmental

Protection

Agency

(“Illinois

EPA”).

The

Illinois

EPA

hereby provides

notice of violations of environmental

statutes,

regulations

or

permits

as set forth in

Attachment A

to this letter.

AttachrneM A

includes an explanation of the

activities

that

the

Illinois

EPA

believes

may

resolve

the

specified

violations,

including

an

estimate of a reasonable

time period to

complete

the

necessary

activities.

However, due

to

the

nature and

seriousness of the violations cited,

please be advised that resolution of the violations

may

also

require the

involvement

of a

prosecutorial

authority

for

purposes that

may

include,

among others, the

imposition ofstatutory penalties.

A written response, which may include

a request for a meeting with representatives of the Illinois

EPA,

must

be

submitted

via certified mail

to

the illinois

EPA

within 45

days

of receipt of this

letter.

The response

must

address each violation specified in Attachment A

and

include

‘for each,

an

explanation

of the

activities

that

will

be

implemented

and

the

time

schedule

‘for

the

completion

of each

activity.

Also,

if

a

pollution

prevention

activity

will

be

implemented,

indicate that

intention in

any

written response.

The

written response will

constitute a proposed

Compliance Commitment

Agreement (CCA’)

pursuant

to

Sectioi~

31

of the

Act.

The

Illinois

EPA

will

review

the

proposed

CCA

and

will

accept

or

reject

the

proposal

within

30

clays of

receipt.

ATTACHMENT

I

53’

N~J’l(,M~3,i

SlieCi,

Rocki’ori’I,

II, 61 1513

-:

)))

5)

0(17-7761)

•

Drs

PL.O~i;S

-

05

I

W, Harrison

SI.,

Des PIaiiies,

IL

60(116

-

(847) 204-4000

--

515

SoLIII,

SIile,

E)p)n,

IL

(,01

23

-(347)61)8-3131

•

P~o~~s

—

5415

N.

Univi’rsily

S6,

Peoria,

IL

61614

-

(31,10) 69~

5463

I

ii

‘a

is

I

I

iii—

76’))

N

Llnissisile

i

I’

is’a

I

6111

I

(109169

462

(

Hvui

0

i—

)I2~

5u~IhEssI

SIrNI

I

irnpsftn

IL

6I8)0—(2I7)

78

a800

51k

1

IC

S

Si

IN

Suc

II

cI

S

I ni

~Ii

I

‘

0)

117)

,116

~~8)

(

OW’’’,

)00~M~’IS

Cd

CoI(inssdlc

II I

)~—,

)(

N

u

s’~

‘10)

5.53

‘~las,SI

SutIc

116

N

iuon

II

6~),)

—

(Mb)

9)

7700

217/785-1896

---

Page 2’

FIC

America

VN

W-2003-00422

If a

timely written response to

this

Violation Notice

is

not

provided,

it

shall

be

considered

a

waiver ofthe opportunity

to respond and meet, and the Illinois EPA may proceed with a referral

to the prosecutorial authority.

Written

comnmnioations

should

be

directed

to

BEVERLY

BOOKER

at

the

ILLINOIS

EPA,

BUREAU

OF

WATER,

CAS

#19,

P.O.

BOX

19276,

SPRINGFIELD, ILLINOIS

62794-9276.

All

communications must include reference to this Violation Notice number, W-2003-00422.

Questions

regarding

this

Violation

Notice

should

be

directed

to

GEORGE

LAMBERT

at

217/785-1896.

Sincerely,

.

~

Michael S. Garretson,

Acting Manager

Compliance Assurance Section

Bureau ofWater

Attachment

---

PAGE 10F1

ATTACHMENT A

CAS00001 5

FTC AMERICA

VIOLATION NOTICE:

W-2003-00422

Questions

regarding

the

violations

identified

in

this

attachment

should

be

directed

to

George

Lambert

at

(217) 785-1896.

‘

.

On October

1,

2003,

a representative of the

Illinois

Environmental Protection Agency

condlucted an

inspection

of the subject facility.

Based upon the

finding of this

inspection

and

a

review of Illinois

EPA records

several

violations ofthe

Illinois Environmental

Protection Act have been noted.

Unpermitted Discharge

A

complaint was

referred from Emergency Response regarding FIC

America.

The complaint centered

on the

practice of washing the loading

dock area.

Specifically

the runoffis

allowed to completely or partially run into

an onsite storm

water drain.

Samples of the water

in the drain revealed

contaminants.

Action should be taken

to eliminate any further discharges.

Compliance is expected to be achieved immediately.

Violation

Violation

.

I)ate

Description

1 0/01/2003

Except as

in compliance with the provisions ofthe Act,

Board regulations,

andl the CWA, and the

provisions

andi

conditions

of the

NPDES

permit

issued

to

the

discharger,

the discharge of any

contaminant or pollutant by any person shall he unlawful.

Rule/Reg.:

Section

12(a)

and

(‘1) ofthe Act, 415

ILCS 5/12(a)

and

(1) (2002),

‘

35111. Adm.

Code 309.102(a)

---

Fit~

America Corporation

December

16, 2003

By Cert~fled

Mail, Return .Recaipt Requested

-

Illinois

Environmental Protection Agency

Bureau of Water, GAS

#19

P.O.

Box19276

Springfield,

IL 62794-9276

Attn:

BeverlyBooker

Re:

November 3, 2003 Letter to FTC America Corporation

(“FIG”)

-

Notice:

W-2003-00422 (‘Notice”)

Facility:

CAS000015

Dear

Ms. Booker:

This

is

to

respond

uppn

behalf

of

FIC

to

the

‘Notice,

including

the

allegations

set

forth

in

Attachment

A thereto

(“Attachment”).

For

the reasons

set

forth below,

FIC

respectfully reques~the

Illinois

En~onmentalProte~on.

Agency

(‘Agency”)

to

resolve

the

Notice and this matter

at

this time ‘without the

need for

further

enforcement

activity.

FTC

would be

pleased to, and requests the opportunity to, meet with

Agency

representatives, ifthe Agency does not believe that the information below resolves this matter.

The Attachment alleges

that,

on October

1, 2003,

during mopping of the

truck

dock pavement

at

750

Rohlwing

Road, Itasca,

Illinois

(“Facility”), rinsate

entered the

stormwater drain at the

base of

the

dock.

The rinsate allegedly included contaminants.

The Attachment further alleges that such

a’

discharge

was

unpermitted

for purposes

of the

Clean Water Act, Illinois

Environmental Protection

Act (“Act”) and stormwater discharge permit.

In response,

FIG comments

as

follows:

I.

FIG disa~eesthat there was a discharge to

the stormwater

drain.

The ac~vitiesof concern

occurred

in

connection

with

FTC’s

systematic

janitorial/maintenance

program

after

termination

of

its

opera~onsat the

Facility.

Consistent

with

good

housekeeping practices,

and in response

to previous

landlord

recjuests

FIG had been cleaning interior surfaces

of the

Facility

and

collecting

and

containing

for

off-site

disposal

resulting

materials,

such

as

nnsates, towels, wipes and other items.

This work was done in

consultation with and under

periodic

supervision

by

FTC’s

environmental,

health

and

safety

consultant,

Mos’t-ardi

Flatt

‘Environmental, Inc.

(‘Mos

torch

‘Platt”)

-

ATTACHMENT II

485

East

Lies

Road

Carol Stream,

IL

60188

Telephone 630-871-7609

Facsimile

630-871 -2631

---

Illinois

Environmental Protectior

~ency

Attn:

BeverlyBooker

December 16, 2003

Page 2

As

part

of

this

process,

FTC

addressed

the

truck

dock.

The

landlord

previously

had

requested

specifically that

this

surface be

cleaned.

Accordingly,

FTC

did

so

on

October

1,

2003.

As

the

dock pavement

was cleaned,

FIG

personnel positioned at

the

drain

mopped up

all rinsate as

it

was

created in

order

to

prevent.any

discharge to

the

drain.

FIG

personnel

accumulated several

buckets

of

such

mopped up

rInsate.

In

addition,

for purposes of possible

documentation

applications, Mostardi Piatt acquired a

wipe

sample from inside

the drain.

Accordingly, the grate

was

removed from the

drain

for

such

purposes.

All of the

FIG employees and Mostardi

Platt

representatives

who were

on-site believe that

no rinsate

entered the drain during the janitorial activities, or otherwise,

on October

1, 2003,

except for discharges arranged by the Agency’s representative

for purposes

of the Agency’s

inspection.

They believe that anywetness observed in the drain

before -the Agency-directed

discharges were residuals from previous wetweather flows.

The statements

of Aaron Stapleton, Charles M. Moek, Alex Antu, Zdislaw Dykas

and

James

Zimny are enclosed in support of the above comments.

2.

Furthermore,

FTC

believes

that the

relevant janitorial

kctivities

enhanced protection

of the

soil

and

waters

of

Illinois

by

removing

potential

contaminants

on

the

pavement

from

exposure to

future wet weather flows

into

the

stounwater

drain.

FTC

believes that

this

is

consistent

with

the

Agency’s policies arid preferences.

3.

In addition,

FIG

believes that, to

the extent any rinsate

entered

the drain,

it would

constitute

the following permitted non-stormwater discharge:.

“waters

used to control dust.”

4.

The activities of concern should not occur again.

FIG

no

longer conducts

any operations at

the Facility and has no

plans to resume

any

operations

there

before its

lease terminates

on

or

about

April

15,

2004.

PlC

has

completed

its janitorial/maintenance

program at the

Facility

and

does

not

expect

to

conduct

any

fu~thersuch

activity

at

or

near

the

truck

dock

or

elsewhere at the Facility.

5.

Nevertheless, FIG desires to prevent any future

similar occurrence at its other facilities.

The

applicable

regulations

and

requirements

have

been

reviewed

with

FIG

maintenance

personnel-

Within

30

days

of resolving this

matter

with

the

Agency,

FTC

will

adopt,

and

transmit

to

its maintenance

and truck dock personnel, a written

policy prohibiting any non-

stormwater

discharge

to

a

stormwater

drain

in

Illinois

except

as

permitted

by

the

Act,

stormwalet

discharge

periant or other applcahle

laW.

---

Illinois

Environmental Protectior

~ency

Attn:

BeverlyBooker

December16,

2003

Page

3

FIG

is

committed

to

being a good

corporate citizen

and would

like to work

cooperatively with

the

Agency to resolve this

matter.

Please

let us know

of

any

question

or

concern,

or if

any further

information

is

desired, regarding this matter.

Sincerely,

FIG

MVERICA

CORPORATION

Enclosures

(Statements of

Aaron

Stapleton, Charles

M.

Moek,

Alex

Anti,

Zdisiaw Dykas

and

James Zimny)

Executive

Vice

President

---

Statement ofAaron Stapleton

1.

My name is

karon

Stapleton.

I am

Manager, PE/Maintenance, for PlC

Ardenica

Corpora.don

(‘FIG”).

-

‘

-

2.

I minaged

tileaning

and

janitotial/~intenance

activities ~t750

Rohiwing

Road~

Itasca,

illinois

(Facility”).

-

3.

On October

1,

2003, FIG petsonnelrnopped the thick ‘dock pa~ement

at the

Facility.

The

persons doing the mopping were Charles Moék, Alex

Antu and Zdislaw Dykas.

I ~nstrwitedthem

to

contain andmop up

all runoff during the mopping.

To

the bestof my knowledge, they did

so

and

no

mopping runoff

entered the stonnwater drain

at

the base of the truck

dock.

4.

To the best ofmy knowledge, there was no

disdharge into

the

ttnck

dock

stdnnwater drain

from

any othet ‘source

on October

1, 2003, except for

dischiir~es~tranged by th~

Illinois

Environmental Protectioti

Agency~s

representative fo±

purpines

of the te~re,sentativè’sii~spedtion.

5.

FIG personnel ‘removed

the grate

from

the •stotmwa,t,er drain

on October 1,

2003

only in

order for James

Zimny

of Mosta~tdPlatt Environmental,

Inc. to obtain a wipe sample from inside

the drain.

Aaron~’tplet6’n

Dated:. December

16, 2003

---

Statement ofZdislaw Dykas

-

1..

My

name

is Zdislaw

Dykas. I am

an employee of FIG

America Corporation

(“FIG”).

2.

I con~ucted

cleaning

andjanitorial/maintenance activities

at 750

RohJ.wing

Road,

Itasca,

Illinois

(‘Facility”).

-

3.

On October

1,

2003,

FIG personnel mopped the tuick doth pavement at the

Facility.

The

persons doing the mopping were the, Charles Moek and

Alex

A.ntu.

My manager,

Aaroh

Stapleton,

instructed us

to

contain

and mop

i~ip

all runoff

during

the mopping.

To the best ofmy knowledge,

we

did

so

and

no mopping

runoff entered the

stormwater drain

at

the base ofthe

truck

dock.

4.

To

the best

of

my

knowledge, ther~

wa~

no dischargeinto the

truck dock stormwater drain

from

any

other source on October

1, 2003, ‘except for

discharges

arranged by the Illitois

Environmental

Protection Agerity’s representative for purposes ofthe rep±esent~tive’s

inspectiçn.

5.

FIG personnel removed thegrate from the

storrnwater drain

on October

1,

2003 only in

order forJames Zimny ofMosta~1rd

Platt Environmental,

Inc. to

obtain a wipe sam~ile

from inside

thedrain.

Zdisl~wDykasf

Dated:

December 16, 2003

---

Statement ofCharles Moek

1.

My name

is Charles Moek.

I am Sppervisor,

Facility Maintenance, for FIG America

Corporation (“FIG”).

-,

2.

I supervised

and

conducted cleaningand janitorial/maintenance activities at 750

Roh.lwing

Road,

Itasca, illinois

(“Facility”).

-

3.

-

On October 1, 2003, FTC personnelmopped the truck dock pavement at the Facility.

The

persons doing-the

mopping were

me,

Alex

Antu and Zdislaw Dykas.

Mymanager, Aaron Stapleton,

instructed us to

contain

and mop up

all runoff

during

the mopping.

To the best of’my knowledge,

we

did

so

and

no mopping rdnoffen,tered -the stormwater drain

at

the base of

the truCk

doth.

-

-

4’.

To the best of my knowledge, there w~sno

dschatge

into

the truck

dock

stOrmwatCr drain

from any other source on ‘October 1, 2003, except fo.r

discbarges arranged

by

the Illinois

Environmental Protection Agency’s representative for purposes of the .representltive’s

inspection.

5.

FIG personnel remoyed the

grate

from

the stoi~mwater

drain on

October

1, 2003

only in

order for James

Zimny

of

Mostard Platt Environmental,

Inc. to obtain a wipe sample

from inside

the drain.

Dated:

December 16, 2003

---

Statement. ofAlex Antu

1.

Ny name.is’Alex Antu.

I am an

employee of FIG

America

COippradon (“FTC”).

2.

I

conducted

‘cleaning and janitorial/maintenance

activities,

at’750

Rohiwing

Road, Itasca,

Illinois (“Facility”).

.

-

.

.

.

-

3’.

On Octobet 1,2003, FIG pe±sonnel

thopped the thick dock pavement

at the

Fa~lity.

The

persons

doing the mop’ping’we~e

the, Charles Moek

and Zdisl~w

D’ykas.

-

My

.tnanager, 24Lai:or.

Stapleton,

ins~ructe,d

us

‘tO

contain ~nd

thop up all

runoff du~ing

the inoppiog. ‘To

the best of my

knowledg;

we

did

so

and

no. mopping

runoff

entered the

stcsrmwater drain

at the bire. ofthe

truck.

dock.

.

.

.

‘

.‘.

.

-

4.

To the best of n~y

knowledge, therewas

no’

discharge ioto

the

truck

dock ~tormwat~rdrain

from

any

other source on October

1,

2003,

except for

discharges

ar±notged

by the

Illinpis

Envirotrnthtal PrOtectio~i

Agency’s ~cpresentative

for

purposes

of‘the

rep’r~sCdtadve’s

inspection.

5.

FIG

peCsonnel remmted the grate

from

th~

stotmwatet drain on

October 1, 20.03

only ~n

order fo~

James Zimty.of,l~ostard

Platt Environmental,

Inc.

to.

obtain

a

wipe sample froth

inside

the

~

---

Statement ofJames Zimny

1.

My name is James Zimnny.

I am an Environmental Technician for Mostardi Platt

Environmental, Inc.

2.

I provided ‘consulting and related se~cesto

FIGAmerica Corporation ~FIC”)

for

purposes of cleaning and janitorial/maintenance activities

at750 Rohlwing Road, Itasca,

Illinois

(‘Facility”).

3.

On October

1, 2003, I observed FIG personnel mopping

the

truck dock

pavement at the

Facility.

I told Aaron Stapleton

that

FIG personnel should contain and mop

up

all

runoff during the

mopping.

To the best of my knowledge, the FIG personnel

did

so

and no mopping runoff entered

the stormwater drain at the base

of the

truck dock.

4.

To

the best of my knowledge, there was no

discharge into the truck dock storinwater

drain

from any other source on October 1, 2003,

except for discharges arranged by

the Illinois

Environmental

Protection Agency’s representative for purposes of the representative’s inspection~

5.

FIG personnelremoved the grate from the stormwater drain on October

1,

2003 in

order

for me to

obtain a wipe sample from inside the drain.

Dated:

December

2003

C

\\X/R~JDOWS\TEMP\C

Locus,Noics.

D~ca\13JZ~r’u~yS1ci~t2.doc

---

~cEj~

USA

Exprpss

Airhill

,

Tr a a bar1

ttunrb,,

k

j5t1~

S~3U

SendeYsFedEx

Account

Horn

-

Phone(630)

871~760

FIG

AMERICA

CORP

npPny

‘

—

Iress

485

E

LIES

RD

.

Dan

l/So~5o,n

CAROL

STREAM

State

IL

zi~~OiB8—9422

~r

Internal

Billing

Reference

,

13

i’TiJ

S

04aharaeesw4

appearan

Phone

C

~n~_OJ3c

Fob,,,,,,

P 5,yj5ad,j

~c__L~?t~L

Oep~Ooii~5a~

~~q~jj

~~IP~7~76’

-cIJ.

02tS28ea8307

‘Try online

shipping

atfedèxacom~u

Byuoing

trio

Airbill

you

agree

In the

service

condeonu

ore the

back

olthis

Pdrbill

and

in our

cur,ent

Sorvice

Guide, including

renns

that limo

our

liabdey.

Questions?

Visit

ourWeb site atted’ex.com

or

call

l.800.Go.FodEx®

800.453.3339.

4b

Express

Freight Service

Li

FedEx

1

Day

Freight’

NeObueieesedoy

‘CaSiaaCoefarsaboro

‘

Packages over150Ib&

DoOoer,aoes,ibn,ar,erey0. leansears, e~sru

FedEx

2Day Freight

FedEx 3Diy Freight

S.uaa,dboalesead,y

Thlndbuainosada’e

.

5

Packaging

‘

•DOoI5totO~ibrds~

Li

FedEn

Envelope

Li

FedEx

Pak°

lncbdesF,dEiserarl

Pat. Fades

Li

Other

.

br5.

Pst.n4FedE,aStrnd5Psk

.

6

Special Handling

~—.—---——

s,tsd.PadExaddeevi,5,,to,O.

SAUtIDAYDeIivery

HOLD

Weekday

,

HOLflSaturday

Li

Aoaila!ate ONWIor

Li

at

FedEx Location

Li

at

FedEicLocaton

FedEePnorOiOaerrr,uhrand

NOTAvarlabIe

foe

‘

.

Available

ONt.Yfor

Fadta1Dayrasaooe

OiFandaa

p~ppooo,md,he

FsdOaPebreityOay,,rgb,and

Does

ttri~

sbipaeeoat

eantaire

dangeroaaegoods?

padtnseaerasaraorrornuan,

r~’

Or,ebaraosaslbeetrourlrad,

Li

trio

Yes

Yes

Drd Ice

Ohip~e?rOatsrtrion

5rr~per’cOnolarabon

Orylo,.9

oP

rats

...__

a

Oa,a,rouaO,,dsl’areivdyre0.~

roeleurrorba abkpedth FedEapatneine

Li

Cargo Aircraft Only

7

Payment

Bit/tar:

Earner IndIes tout

Net, Cnedlr

cared

Na.bolaw.

Li

Sender

Li

Recipient

Li

Third

Party

Li

Credit Card

Li

CaslVCheck

rucilbabtod.

FeotaOaenlu

E~n.

credecardbv

‘

Onro

TatalPackages

TotalWeight

TetalfleclarodVahiet

5

.00

50r

rabiliry

it

tm’eedio slotunloueyoir

declare a

hithernaive. Sea bank

or

details.

IndEx

Sure

Only

8

Release Signature

Ssneauth~od,i&ot~n~~.reauarrs

Oy

signingyou aurhoria, usre

del?uenrhia ahipmenr

sobthour

ubraining

a

slgsanu,e

and agnoeru irdeinnilyand

hold us

harrrrleas

mm

anyresuling claims.

sris.n,. 5,, 5,uy.pu,r

,isnuio.or,su—axa leJEa.PflirulEO

sir

0.0

Li

FedEro Priority

Overnight

teetaraie,aam,roerksa

Li

FedEx2Day

lO’~edEsExpressSaver

bossed

bualneas day

‘

Thkdbuar.ssday

P.dtaa.sar,eueanaisblokl

eb

mnrons-easedrar.

Packages

up

to

150

Ibs

oerseryaaaeaeds,,eemay

be

steel,sorer,

emcee.

Li

FedExStaradard Overnight

FedExflrstOvemight

east

bioisessahenaaoa

EarOesss.atbushessrno,sbr,

dreNoere ra

soI.

at Ioneros,

H

---

PROOF OF SERVICE

I,

the undersigned, do hereby state on oath that I served the foregoing MOTION

OF

RESPONDENT TO DISMISS OR, IN

THE ALTER1NATIVE,

STRIKE

upon Carey S.

Rosemarin, Law Offices of Carey S. Rosemarin, P.C. 500 Skokie Boulevard, Suite 510,

Northbrook,

IL 60062 by placing a copy of the same in a properly addressed,

postage prepaid,

envelopes and depositing the same in the U.S. Mail Chute at

203

N. LaSalle Street Suite 2500,

Chicago, Illinois 60601

on this

_____

day of

~

,

2004.

________

-s

L

Subscribed a

sworn to before me this

5~

day of ______________

2004.

~

Notary

Public

,

‘