RECE~VED

CLERK’S OFFICE

BEFORE THE

ILLINOIS POLLUTION

CONTROL

BOARD

FEB -6

2004

STATE OF ILLINOIS

MATE TECHNOLOGIES, INC.

)

Pollution

Control Board

)

Complainant,

)

)

v.

)

PCB No. 2004-075

)

(Enforcement X)

F.T.C. AMEPJCA CORPORATION

)

)

Respondent.

)

NOTICE OF

FILING

TO:

Carey S. Rosemarin

Law Offices ofCarey S. Rosemarin, P.C.

500 Skokie Boulevard, Suite 510

Northbrook, IL 60062

PLEASE

TAKE

NOTICE

that

on

the

6th

day

of

February,

2004

F.I.C

AMERICA

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

0fMASUDA,

FUNAI,

EIFERT

&

MITCHELL,

LTD., shall file its REPLY

OF RESPONDENT

IN

SUPPORT

OF

ITS

MOTION TO DISMISS

OR, IN THE ALTERNATIVE,

STRIKE

with the Office of the

Clerk ofthe Pollution

Control Board

,

a copy ofwhich is hereby served upon you.,,

ofIts

orneys

Jeremy A. Gibson

Mitchell S.

Chaban

MASUDA, FUNAT,

EIFERT

&

MITCHELL,

LTD.

203 N.LaSalle Street, Suite 2500

Chicago, Illinois

60601

(312) 245-7500

N:\SYS23\61 85\NOTFJL\00420003.doc

---

PROOF OF SERVICE

I, the undersigned,

do hereby state on oath that I served the foregoing

NOTICE OFFILING

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.

~

__

Subscribed and

day of

OFFICIAL

5~AL

KATHLEEN E

BARRY

NOT!’ RY PLmLIC STATE OF ILLINOIS

N:\5Y523\6185\ProfServ\420005.doc

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLERK’S

OFFICE

FEB

-

62004

MATE TECHNOLOGIES, INC.

)

STATE OF ILLINOIS

)

Pollution Control Board

Complainant,

)

)

v.

)

PCB No. 2004-075

)

(Enforcement X)

P.l.C. AMERICA CORPORATION

)

)

Respondent.

)

REPLY OFRESPONDENT

IN SUPPORT OF ITS

MOTION TO DISMISS OR, IN THE ALTERNATIVE,

STRIKE

Respondent,

F.I.C.

AMERICA

CORPORATION

(“FIC”)

hereby

presents

its

Reply ofRespondent (“Reply”) in

support ofits Motion

to Dismiss or, in the alternative,

Strike (“Motion”) and in reply to

Complainant’s Response (“Response”) in opposition to

the Motion.

I.

Introduction

Complainant,

MATE

TECHNOLOGIES,

INC.

(“Mate”),

has

failed

in

the

Response to

address most of the Motion, much

less

rebut the

fatal

shortcomings of the

Complaint catalogued in the Motion.

Rather than refute the reasons its allegations cannot

constitute

violations

of law,

Mate

mischaracterizes

FIC’s

arguments

and

pontificates

broadly

that

“effluents,

emissions

and wastes must be

intensively

.

.

.

managed.”

FIC

does

not

reject the

Illinois

Environmental

Protection

Act

(“Act”);’

instead FIC

simply

notes

that

the

facts

alleged by

the

Complaint

(and

favorable

inferences

with

respect

thereto)

could

never

constitute

a

violation

of

the

Act

or

are

duplicitous.

Mate

is

stretching the Act and citizen complaint mechanism to the breaking point.

415

ILCS 5/I

etseq.

---

II.

Argument

A.

Counts I through VII are Frivolous and Legally and FactuallyInsufficient

Observing there is

a “cradle-to-grave” system for hazardous waste, Mate states in

conclusory fashion

that the Property constitute an illegal

landfill or other waste disposal

operation.

Though

Mate seems

to

believe that

the

Act

prohibits the

settlement of any

molecule during manufacturing, there is no basis alleged in the Complaint or Response to

ever conclude that the materials ofconcern can constitute “waste” or result in a violation

of the Act.

As they are not discarded, they never reached the “cradle.”

For the reasons stated in the Motion, the mere settlement of oily dust

inside of a

plant in the

course ofongoing production does not mean such material has been disposed,

“discarded” or constitutes waste.

TheResponse and Complaint reinforce this as follows:

-

Mate has cited no

case

law

contrary to

FIC’s

position.

Other than referring

in

passing

to

an inapplicable description of discarded material at

35 Ill.

Adm.

Code

§721.102(a)(2),

Mate simply has repeated

its

allegations.

The

cited

regulation

simply notes that a material may be discarded for certain

purposes if it has been

“abandoned.”

As

suggested

in

the

Motion,

there

are

no

allegations

that

the

materials ofconcern have been abandoned.

-

Mate has not alleged that FIC left the materials ofconcern in place.

Mate has not

alleged that FIC failed to periodically conduct janitorial

or maintenance activities

at the Property to

remove the

materials or that

FIC

mishandled

substances

after

theyhad been collected or stored.

-

Mate

has

not

alleged

that FIC

dumped or buried wastes at

the

Property

or that

manufacturing

operations

have

contaminated

the

soil

or

groundwater

at

the

Property so as to require remediation.

-

Mate has not alleged that FIC abandoned the Property.

-

Mate has not

disputed that

the

alleged

activities

are

exempt

from air permitting

and that air emissions are “contaminants” pursuant to the Act, rather than wastes.

-

Mate has not disputed the applicability or holding of

Boyer v. Harris,

PCB 96-151

(September 4,

1997) (chipped and peeling lead-based paint throughout a structure,

2

---

which

apparently

emitted

dust

or particulate

into

soil

and

elsewhere, was not

a

“waste” because it had not yet been discarded).

-

Mate has not alleged that FIC accepts wastes from otherparties or is intentionally

disposing ofwaste

at the Property.

Furthermore, a Board case cited elsewhere by

Mate

demonstrates that

the Property

as a matter of law

cannot be

a

disposal

or

similar

facility requiring a permit.

Matteson

WHP Partnership

v.

Martin,

PCB

97-121 (June 22, 2000), 2000 WL 890181

at 6.

(drycleaning business the site of

leaking and spilling did not require a permit).

Dust

inevitably

settles

in

every

building;

this,

without

more,

cannot violate

the

solid

waste requirements of the Act.

As there are no

substantive allegations beyond

industrial

operations in the ordinarycourse, Counts I-VII should be dismissed.

B.

Count VIII is Frivolous and Legally and Factually Insufficient

The Motion provides that Count VIII is fatally flawed (1)

in its

entiretybecause of

insufficient factual

allegations and (2) to the extent it addresses workplace emissions and

welding

activities

subject

to

the

federal

Occupational

Safety

and

Health

Act

(“OSH

Act”).

The Response does not refute either ofthese points.

After

acknowledging

that

it has not

alleged violation of a

specific

air pollution

control

standard,

Mate argues that

it has complied with

35

Ill.

Adm.

Code

§103.204 by

virtue ofthe following allegation:

“PlC’s

emission of oil

has been injurious

to

human

health

because it

has been

inhaled by persons in or near the Property.”

Complaint, ¶73;

citing Finley v. IFCO ICS-Chicago,

Inc.,

PCB 02-208 (August

8, 2002),

2002

WL

1876193.

However, this simply is

stating a conclusion and

is

far

short of the

specific allegations in

Finley

court or the cases cited in the Motion.

In upholding the

Finley

complaint, the Board noted the specificity as follows:

“TJhe

complaint

elaborates

that

the

alleged

injuries

and

interference

include:

Nausea,

dizziness,

lightheadedness,

headaches,

sinus pain,

sore

throats,

eye

irritation,

chestpain,

adverse effects

on

those with asthma, coughing.

.

.

fatigue,

3

---

breathing

dzfJIculty,

irritation

of upper respiratory

tract

and

lower

respiratory

tract,

causing the evacuation ofoffice buildings.

..

Finley,

2002 WL l876193at

5

(emphasis

added).

In contrast, the

Complaint contains

no such allegations of serious actual

adverse

consequences.2

Furthermore,

as noted in the Motion and ignored by Mate,

actionable air

pollution

does

not

include

“trifling

inconvenience,

petty

annoyance

and

minor

discomfort.”3

To allow Count Vifi to

proceed would render 35

Ill. Adm.

Code

§

103.204

meaningless.

(As authorized by the Act, we all continually inhale permitted mobile and

stationary source emissions ofhazardous materials; if Mate’s allegation is

sufficient, then

any person is entitled to

a hearing against any source for statutory air pollution.)

Nonetheless, 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.

See

29 U.S.C. 667(a);

Gade v.

National Solid Wastes Management Association,

505

U.S. 88,

112 S.Ct. 2374 (1992).

Mate has not disputed that specific indoor air contaminant

and welding standards

have been promulgated by the

federal

Occupational

Safety

and

Health Administration

(“OSHA”)

pursuant

to

the

OSH

Act.4

Nor

has Mate disputed either

that

Count

VIII

primarily

concerns

indoor

air emissions

in

a

workplace arising

from

welding

or that

Illinois has not adopted its own regime to supplantthe federal scheme.

2

Recognizing the

weakness of the Complaint, Mate has

improperly attached to the Response an exhibit

purporting tobe

an FIC employee complaint to OSHA.

This abuse ofprocedure should be rejected.

As

noted

in Mate’s own citation:

“A party must prevail, if at all,

on and

according to the case made in the

pleadings.

Matteson

WHP Partnership v. Martin,

PCB

97-121

(June 22, 2000), 2000 WL 890181

at

11.

Furthermore, per the

attached May 9, 2003

and June

18,

2003 letters between FIC and OSHA, a

site

inspection and related indoor air quality testing demonstrated there was no

need

for

further action.

Finally,

this serves to underscore that Count VIII

should be preempted by the

OSH

Act.

~See,

e.g., Brill v. Latoria,

PCB 00-2 19 (June 6,

2002);

Trepanierv. Speedway Wrecking

C’o.,

PCB 97-50

(January 6, 2000).

“See

§29 C.F.R.

1910.1000,

§29 C.F.R.

1910.25.

4

---

Yet,

by

misreading

dicta

taken out of context,

Mate

argues

that

Gade

does not

preempt Count VIII.

According to Mate, Gade holds that a law of“general applicability”

is not preempted.

However,

Gade

and federal law are clear that even

general

state laws

are preempted

to the’ extent

that they regulate subjects covered directly by the OSH Act.

The OSH Act

impliedly preempts the field where relevant federal standards have

been promulgated and any state law intruding upon such standards must yield:

The

design

of

the

statute

persuades

us

that

Congress

intended

to

subject

employers and employees to

only one set of regulations,

be it federal or state, and

that the

only

way

a

State may regulate

an

OSHA-regulated occupational

health

and

safety issue

is pursuant

to

an

approved state plan that

displaces the federal

standards....

***

WJe

conclude that the OSH Act precludes

any

state regulation of an occupational

safety

or

health

issue

with

respect

to

which

a

federal

standard

has

been

established, unless

a state plan has been submitted and approved....

Our review

ofthe Act persuades us that Congress sought to promote occupational

safety and

health

while

at thesame time avoiding duplicative

and possibly counterproductive

regulation.

It thus established a

un~form

system offederal.

.

.

standards.

If a State wishes to regulate an issue ofworker safety for which ,a federal standard

is in

effect, its

only

option is to

obtain the prior approval ofthe Secretary ofLabor

***

Although we have chosen

to use the term ‘conflict’

pre-emption, we could easily

have stated the promulgation of federal safety

and health standard ‘pre-empts the

field’ for

any

nonapproved state law regulating the same safety and health issue.

Whatever the purpose or purposes of the

state law,

pre-emption analysis

cannot

ignore the effect of the challengedstate action

on thepre-emptedfield.

Gade,

505 U.S. 88 at 102-108 (emphases added).

Accordingly,

the

U.S.

Supreme

Court

held

that

certain

Illinois

laws

were

preempted

“to

the

extent”

they

established

requirements

within

the

scope

of federal

standards,

even

though

such laws

(1)

were

based

upon

traditional

state

police,

health,

safety, and

licensing powers,

(2)

supplemented, and

were

not

necessarily

inconsistent

5

---

with, the federal

standards and (3) had effects outside ofthe workplace.

Gade,

505 U.S.

88

at

108.

Similarly,

Count

VIII

must

be

dismissed

to

the

extent

it

concerns

matters

covered by OSHAindoor air emission and welding standards.

In

dicta,

the

Gade

court

commented

in

passing

that

the

OSH

Act

does

not

preempt every law

simply because it may apply to

a workplace setting; it preempts only

those that intrude upon an area subject to

a federal standard:

“On

the

other hand,

state

laws of general

applicability

(such as laws

regarding

traffic

safety or

fire safety)

that

do

not

conflict with

OSHA

standards

and

that

regulate the conduct ofworkers and nonworkers alike would

generallynot be pre-

empted.

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,

505

U.S.

88

at

108

(emphasis

added).

Because the Complaint

concerns

matters

covered by OSHA standards, this comment is not relevant.

Moreover, Mate cites no, and

PlC has located no, precedent after

Gade

supportive ofMate’s position.5

C.

Count IX is Duplicitous

The

Motion

provides

that

Count

IX

is

duplicitous

of the pending

proceeding

initiated

by

the

Illinois

Environmental

Protection

Agency

(“Agency’).

Mate does

not

dispute

that

Count

IX

is

identical

or

substantially

similar

to

the

allegations

being

prosecuted by the Agency.

Instead, Mate

argues that

the

Complaint is broader in

scope

and

that

there

is

no

duplicative

adjudicative

proceeding,

citing

Finley

v.

IFCO

IC’S-

Chicago,

Inc.,

PCB 02-208 (August 8, 2002).

These contentions should be rejected.

The

only Illinois cases

located by FIC construing

Gade

and finding no preemption are

not applicable or

relevant;they conclude

that certain

actions pursuant to the Illinois Structural WorkAct are outside the

scopeof OSHA

standards or were expressly saved.

See Davis

v. States Drywalland Painting,

268

1ll.App.3d 704, 645 N.E.2d

304

(In

Dist.

1994);

Kerker v. Elbert,

261

I11.App.3d 924, 634 N.E.2d 482

(4th

Dist.

1994);

Adami v. Green Giant Division,

849

F. Supp.

615

(N.D. Ill.

1994);

Vukadinovich v.

Terminal 5

Venture,

834 F. Supp. 269 (N.D. Ill.

1993).

6

---

Mate argues that it should be permitted to go on

a fishing

expedition by asking the

Board to “permit Mate to flush

out” discovery beyond the alleged October

1, 2003

events

because ¶10 of the Complaint establishes broader concerns.

However, neither ¶10 nor

the rest ofthe Complaint alleges any other unpermitted wastewater discharge whatsoever.

In addition,

Finley

and the precedents cited therein are not directly on point.

For

example,

Finley

involved claims

by the U.S. Environmental Protection Agency and City

of Chicago

Department of Environment

pursuant

to

different

laws than those

at

issue

before the Board.

Similarly, the

cases cited

in

Finley

are distinguishable from,

and not

applicable to, this

case.6

In fact, FIC has not located any precedent holding that a citizen

complaint

may proceed

where

the Agency

is

prosecuting

the same

factual

allegations

pursuant to the same provisions of the Act.

This

should

not

be

surprising.

Although

the

Act

authorizes

“private

attorneys

general,” such persons should not be allowed

to proceed while their public

counterparts

actively are

exercising

their enforcement

authority

regarding the

same claims.

To

do

otherwise

would

interfere

with

the

regulatory

scheme

and

result

in

a

waste

of

governmental

resources

and

force

citizens

into

duplicative

litigation

of the exact

same

issues.

State authorities should not be

in a race with private attorneys general or else run

the risk ofinterference from premature citizen actions.

In

addition,

an

enforcement

proceeding

by

a

regulatory

agency

such

as

the

Agency

should be considered a “forum.”

A reasonable person would consider the service

6

See

UA Wv.

Caterpillar, Inc.,

PCB 94-240 (Nov.

3, 1994)

(participation in Agency’s

voluntary cleanup

program is not an enforcement forum and did not involve same factsor.lawsatissueincitizen complaint);

White v.

Van Tine,

PCB 94-150 (June 23,

1994) (no

indication that Agency initiated a notice ofviolation

proceeding

or investigated same facts or

acted pursuant to same laws at issue in citizen complaint);

Gardnerv.

Twp.

High

School District 211,

PCB 01-86 (Jan. 4,2001) (involved Cook County investigation

pursuant to county code).

7

---

of an official written Agency notice of violation

after an

inspection and investigation

to

be

the

equivalent of a complaint

and

the commencement of a legal

action,

particularly

because

regulatory

agencies

often

act

as prosecutor,

judge

and jury.

Thus,

Count

IX

should be dismissed, at least until the Agency proceeding has been concluded.

D.

Counts II-VIII Seek Relief that cannotbe

Granted

Mate has

not

refuted

the Motion.

As

to

Counts

Il-VII,

any

remedy cannot

be

arbitrary,

capricious

or unreasonable;

it

must

bear

a rational

relationship to

the

harm.7

The Response does not

demonstrate how, where there can be no bar to

the settlement of

dust in the first place, remediation can be related to the filing of a report or application for

a permit.

•As to

Count VIII, Mate has not identified any precedent ordering remediation

in the case ofunreasonable air pollution, where there is no violation ofany standard.

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.

Jeremy A. Gibson

Q

LVJIL~11~AA

~.

~ii~&~~si

MASUDA, FUNAI, EIFERT & MITCHELL, LTD.

203

North LaSalle Street, Suite 2500

Chicago, Illinois

60601

Respectfully submitted,

‘See,

e.g., ESG Watts, Inc. v. Illinois Pollution Control Board, 282 11l.App.3d 43, 668 N.E.2d

1014

(4t~

Dist.

1996)

Attorneys for Respondent

8

---

PROOF OF SERVICE

I, the undersigned,

do hereby state on oath that I served the foregoing REPLY

OF

RESPONDENT IN

SUPPORT OF ITS MOTION TO DISMISS

OR, IN THE

ALTERNATIVE, STRIKE

upon Carey S. Rosemarin, Law Offices ofCarey S. Rosemarin,

P.C.

500 Skokie Boulevard, Suite 510, Northbrook, IL 60062 by placing

a copyofthe same in a

properly addressed, postageprepaid, 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.

~

~

~ubscribed

an4isj~ornto b

o~ me this

(()

day of~Zl-’~’t’L~?.

,

2004.

11

BARRY

~

~‘i.

t’J’~L~(:

STATE

OF

‘••~‘‘~~‘.

M.A’