RECEIVED
CLERK’S OFFICE
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
JAN 232004
STATE
OF
ILLINOIS
MATE TECHNOLOGIES, iNC.
)
Pollution
Control
Board
)
Complainant,
)
)
v.
)
PCB No. 2004-075
)
(Enforcement X)
)
F.T.C. AMERICA CORPORATION,
)
)
Respccndent.
)
COMPLAINANT’S RESPONSE IN OPPOSITION TO
MOTION OF RESPONDENT TO DISMISS OR, IN THE ALTERNATIVE,
STRIKE
Complainant Mate Technologies, Inc. (“Mate”) opposes Respondent FTC America
Corporation’s (“FTC” or “Respondent”) motion to dismiss (the “Motion”) because it does not
satisfy the judicial standard applicable to a motion to dismiss. Additionally, FTC’s arguments are
premised on the notion that environmental regulations do not apply until
after
wastes, emissions
and effluents are released. Such reasoning is plainly wrong, and stands modem environmental
regulation on its head. For more than three decades the Illinois Pollution Control Board
(“Board”) has promulgated regulations that require intensive management to
prevent
the types of
messes which FTC has created.
Judicial Standard
The standard that the Board must apply to kespondent’s motion cannot be in dispute:
When ruling on a motion to dismiss, the Board takes all well-pled allegations as
true and draws all inferences from them in favor ofthe non-movant.
Dismissal is
proper only if it is clear that no set offacts could be proven that would entitle
complainant to relief
See People v. Peabody Coal Co., PCB 99-134, slip. Op. at
1-2 (June 20, 2002); People v. Stein Steel Mills Co., PCB 02-1, slip op. at 1 (Nov.
15,
2001) citing Import Sales, Inc. v. Continental Bearings Corp., 217 Ill. App. 3d
893, 577 N.E. 2d 1205 (1st Dist. 1991).
People v. Michael Grain Company, Inc. et al.,
PCB 96-143 (October 2, 2003); 2003 WL
22334782, at *4 (emphasis added).
Respondent does not argue the that no set of facts could be proven that would entitle
Complainant to relief. Instead, Respondent relies on extraordinary regulatory interpretations that
find no basis in law. As demonstrated below, the Complaint alleges facts which, when proven,
will entitle Mate to relief, FTC’s Motion has no merit and should be denied.
Counts I through VII’
Ignoring the language ofthe regulations involved in Counts I through VII, FTC baldly
asserts that the oil that FTC has wantonly spewn about must qualify as “waste.” But, the
argument continues, the oil could not be waste until
after
FIC releases it,
and after
FTC ponders
what to do with the stuff. Motion, at pp. 4-5. Consider some ofFTC’s more striking assertions:
Mate~spremature application of regulatory duties should be rejected; such duties
cannot attach until, at a minimum, the materials ofconcern have been
affirmatively collected and identified and a handling determination has been
made.
***
The mere existence orpresence of a material in an active facility that may
eventually require certain regulated management does not mean it is a waste or
somehow has been ‘passively’ discarded.
**
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.
For reasons that are not clear, FTC has lumped together Counts I through VII. Motion,
at pp. 3-7.
2
Motion, atpp.
5-6.
Such statements are utterly preposterous. Virtually the entire structure ofTitle 35 of the
Illinois Administrative Code is founded on the premise that effluents, emissions and wastes must
be intensively analyzed and managed
—
before, during, and after their production. And this, for
the very purposes
ofpreventing
their release to the environment, and
avoiding
the dilemma of
how on earth to “collect” them.
See, e.g.
35 Ill. Adm. Code Parts 720 through 725, which impose
“cradle-to-grave” requirements on the generation, transportation, treatment, storage and disposal
of hazardousThe
Complaintwastes.2 alleges, in painstaking detail, exactly how FIC’s policy of “dump now,
think later” has violated a host of environmçntal regulations, as follows:
Count I
The oil that FTC generated was “used oil” within the meaning of35 Ill.
Adm. Code §739.100, and FTC’s wanton dissemination of it on the
building surfaces, the environment, and in the lungs ofindividuals violated
the used oil storage requirements of35 Iii. Adm. Code §739.122(a).
Complaint
¶~J
17, 22.
Count II
The used oil regulations require disposal in accordance with the both the
hazardous waste regulations and the solid waste regulations.
Hazardous
waste regulations.’
Some ofFIC’s used oil was hazardous, and was
disposed in violation of the hazardous waste regulations
—
thereby
violating the used oil regulations. Complaint
¶~J
25,
29-30.
Solid waste
regulations:
To the extent that FTC’s used oil was not hazardous, it was
disposed in violation of the solid waste regulations
—
thus also violating
the used oil regulations. Complaint
¶~J
25,
37-38.
Count III
FTC’s used oil was a solid waste, and FTC did not contain it to prevent its
entry into the environment. Therefore, FTC caused the property to satisfy
the definition of a “landfill” and ignored the regulatory requirements
2
The well-known elaborate definition of “discarded material” in 35 Ill. Adm. Code
§721.102(a)(2) clearly negates FIC’s observation that “there appears to be no relevant statutory,
regulatory or reported opinion on point defining or interpreting ‘discarded’
. . . .“
Motion, at p.
5.
3
applicable to such facilities. Complaint
¶~J
37-39, 44-45.
Count IV
FTC was a hazardous waste generator, and by failing to determine whether
the oil was hazardous, violated the hazardous waste generator regulations.
Complaint
¶~J
51,
52 and
55.
Count V
FTC stored hazardous waste on-site for more than 90 days without a
permit, and thus violated the hazardous waste storage regulations.
Complaint
¶~J
57,
58
and 60.
Count VI
FTC disposed of hazardous waste on-site without a permit, and thus
violated the hazardous waste disposal regulations. Complaint
¶~J
30 and
62.
Count VII
FTC disposed ofwaste on-site in violation ofthe statutory prohibition on
waste disposal. Complaint
¶~J
64, 66 and 68.
Mate has well-pled all facts necessary to demonstrate the violations cited in Counts I
through VII. Respondent has not even attempted to show how Mate’s proof ofthese facts would
not entitle Complainant to the relief it seeks. Therefore, Respondent’s motion should be denied.
Count VIII
FTC maintains that Count VIII, alleging that FIC violated the statutory prohibition on air
pollution, should be dismissed because Mate did not allege a violation ofa specific air pollution
standard, and because Complainant’s allegations ofinjury due to air pollution were “factually
insufficient.” Motion, at p. 8. FTC’s arguments are refuted by the plain terms ofthe
Environmental Protection Act. 415 ILCS
5/1 et seq.
(the “Act”). They are also discredited by
the face ofthe Complaint.
Section 9(a) of the Act prohibits discharges or emissions “so as to cause or tend to cause
air pollution
. . .
or
so as to violate regulations or standards
. . . . “
415 ILCS 5/9(a). Obviously,
the statute can be violated either on the basis ofcausing air pollution, or on the basis of
exceeding a standard; both bases are not needed. The Illinois Supreme Court has held, “The Act
4
does not require that a specific standard adopted by the Board be found to have been violated for
there to be determination either ofair pollution or ofprohibited conduct.”
Mystik Tape, Division
ofBorden, Inc. v. Pollution Control Board et al.,
60 Ill.2d 330, 328 N.E.2d
5,
8. Mate clearly
alleged that FTC violated the statutory prohibition ofair pollution. Complaint
¶
73. No
allegation ofa violation ofa specific standard was necessary.
Still, FTC claims that “Count VIII contains no allegations regarding air quality, either
indoors or outdoors (such as at the property boundary), or description ofany injuries caused
thereby, whether to persons orproperty.” Motion, at p. 8. This statement is simply belied by the
plain language ofCount IX, which reads in pertinent part:
The oil emitted to the atmosphere by FIC’s industrial operations has injured the Property
by causing areas of the Property to be coated with a black film. For the same reason, it
has also unreasonably interfered with the enjoyment of the Property.
FIG’s emission of
oil has also been injurious to human health because it has been inhaled by person in and
near the Property.
Id.
(emphasis added).
FIC does not, and cannot validly argue that the Complaint does not provide sufficient
notice to enable Respondent to prepare a defense.
See Finley et al. v. IFCOICS-Chicago, Inc.,
PCB 02-208 (August 8, 2002); 2002 WL 1876193, at
*5
(holding, “A complainant can allege air
pollution
. . .
and be heard by the Board without having to identify the name of the chemical
emitted, the specific operation in a plant that emitted the chemical on a specific day, and precise
quantity of the chemical emitted.”
Id.)3
Nor has FTC shown that Complainant could prove no set
~ FTC stated that it treats all factual allegations as true for the purposes ofits motion.
Motion, at n. 1. However, FTC exceeded the proper scope of a motion to dismiss by claiming
that Mate’s allegations are “ungrounded.” Motion at p. 8. There should be no doubt about the
support for Mate’s allegations. Attachment 1 consists of a letter to OSHA from an FTC employee
stating in part, “There are no ventilations in this plant and due to this, people are getting sick
5
offacts that would entitle it to relief on Count VIII. Therefore, FIC’s motion as to Count VIII
should be denied.4
Count IX
FTC seeks to have Count IX dismissed on the basis that it is duplicitous, claiming that
IEPA issued a violation notice to FTC for violating 415 ILCS 5/12(a), the prohibition ofwater
pollution that is the subject of Count IX. Motion, at p. 10. Duplicitous means “the matter is
identical or substantially similar to one brought before the Board or
anotherforum~”35
Ill.
Adm. Code
§
101.202 (emphasis added). Mate’s allegations are not duplicitous because the
matter is not before
anotherforum.
JEPA is an enforcement agency (and ofcourse, a frequent
litigant before this Board)
—
not a forum. As the Board has clearly stated, “Investigation by the
government ofpotential violations does not render duplicative a citizen complaint, formally filed
with the Board under Section 31(d) of the Act.”
Finley et al. v. IFCO ICS-Chicago, Inc.,
PCB
02-208 (August 8, 2002); 2002 WL 1876193, at *6 (citations omitted).
Moreover, Mate’s complaint is not limited to the event on October 1,2003, which is the
from the smoke that the machines are emitting.”
~FTC also argues that by virtue ofthe U.S. Supreme Court’s holding in
Gade v. National
Solid Wastes Management Association, 505
U.S. 88, 112 S.Ct. 2374 (1992), the Act’s
prohibition ofair pollution, 415 ILCS
5/9(a),
was pre-empted by OSHA ‘s regulation of welding.
Gade
allows no such conclusion. Rather, the Court affirmed the Seventh Circuit’s holding that
“the OSH Act pre-empts all state law that ‘constitutes, in a direct, clear and substantial way,
regulation ofworker health and safety.”
Gade
at p. 2387. The Court then explained, “Although
some laws of general applicability may have a ‘direct and substantial’ effect on worker safety,
they cannot fairly be characterized as ‘occupational’ standards, because they regulate workers
simply as members ofthe general public.”
Gade
at p. 2388. The Act’s prohibition of air
pollution, 415 ILCS
5/9(a),
is a perfect example of such a law ofgeneral applicability; it is not an
occupational standard and was not pre-empted by OSHA.
6
date ofthe incident addressed in IEPA’s violation notice. Complaint ¶10. Especially in light of
the positions espoused in FTC’s Motion, the Board should deny the Motion and permit Mate to
flush out the extent of FTC’s unpermitted discharges through discovery.
Counts II -VIII
Finally, FTC asserts that Counts II through VIII should be stricken on the basis that “the
requested relief cannot be granted because it bears no relation to the alleged violation of the Act
or is unsupported by Board precedent.” Motion, at p. 11. And, as if to mock the Board’s
regulations, FTC shrugs offthe misdeeds alleged in Count II through VII as mere “paperwork
violations,” that “cannot be the basis for remediation relief”
Id.
FTC is shockingly misguided. The unspecified “paperwork” to which FTC refers
(presumably, matters such as permits and waste analyses) is not meaningless red tape. Rather, it
is the product of intensive management ofwastes, and reflects actions that must be taken to avoid
physical injury to health and the environment. Ignoring mandates for such management bears a
direct relation to environmental harm. For example, if a manufacturing facility chooses not to
analyze its wastes, the chances of offensive substances being released to the environment
increase substantially. That is precisely what occurred in the present case.
And that is precisely why Mate has requested the Board to order FTC to properly
remediate the property. Section 33 of the Act provides the Board with ample authority to issue
such an order. 415 ILCS 5/33;
Matteson WHPPartnership v. Martin,
PCB 97-121 (June 22,
2000); 2000 WL 890181.
In the very first paragraph of the Complaint, Mate stated in pertinent part, “FIC acted in
total disregard of Illinois’ plenary statutory and regulatory structure, which is designed to assure
7
environmentally sound management of wastes,” The positions that FTC has asserted in its
Motion provide strong support for that allegation.
Conclusion
For the reasons set forth above, the Board should soundly reject FTC’s arguments and
deny the Motion.
Respectfully submitted,
MATE TECHNOLOGIES, iNC.
Carey S. Rosemarin (Atty. No. 6181911)
Law Offices ofCarey S. Rosemarin, P.C.
500 Skokie Boulevard, Suite 510
Northbrook, IL 60062
847-897-8000
312-896-5786 (fax)
8
From
F.I.C. America Corporation
750
N. Rowhling Road
Itasca, IL 60143
To: O.~.H.A.
365 Smoke Tree Plaza
Aurora, JL 60542
(Attention Complaints Department)
T~Whom It May Concern:
We are writing to you due to complaints that
-
iave
regarding the plahllcompany located in
750
NorthRowhling Road, Itasca,
TL. We know that in a company especially in a warehouse, safety ofthe
employees is first. But in our case, it is not. There are no ventilations. in this
plant and due to this, people are getting sick from the smoke that the
machines are emitting. Some ofthe employees are getting, nosebleeds,
allergic reactions, and fever. These are just some of the common sickness
that the employees are getting. We have two employees who have already
reported to their’ doctors due to their conditions. The other employee quit
due to health reasons. We are asking’ for your assistance in regards to this
situation. We do still want to keep. ourjobs but we want to be able to work
ma safe and healthy place. We are also asking you to keep our names
anonymous and confidential. Thank you very much for your help.
Sincerely,
Attadhment 1
CERTIFICATE OF SERVICE
I, Carey S. Rosemarin, an attorney, hereby certify that I caused a copy ofthe foregoing
“Complainant’s Response in Opposition to Motion ofRespondent to Dismiss or In The
Alternative, Strike,” to be served upon:
Jeremy A. Gibson, Esq.
Mitchell S. Chaban, Esq.
Masuda, Funai, Bifert & Mitchell, Ltd.
One E. Wacker Dr.
Suite 3200
Chicago
,
IL 6060 1-2002
by regular U.S. Mail, on January 22, 2004
~osemarin
Law.9.ff’ices ofCarey S. Rosemarin, P.C.
5Ofr~kokieBoulevard, Suite 510
Northbrook, IL 60062
847-897-8000
312-896-5786 (Fax)