BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MATE TECHNOLOGIES, INC.

)

CL~R~SOFI~CED

)

Complainant,

)

.

FEB 10 2OO’~

)

STATE OF ILLINOIS

v.

)

PCB

No.

2004-075

Pollution Control Board

)

(Enforcement X)

F.I.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 10th day of February, 2004 F.T.C AMERICA

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

FUNAI, EIFERT& MITCHELL, LTD., shall file its

MOTION TO SUPPLEMENT THE REPLYOF

RESPONDENT.

IN SUPPORT OF ITS MOTION TO DISMISS OR,

IN

THE

ALTERNATIVE,

STRIKE with the Office ofthe Clerk ofthe Pollution Control Board

,

a copy of

which is hereby served upon you.

One ofIts Attorneys

Jeremy A. Gibson

Mitchell S. Chaban

MASUDA, FUNAI, EIFERT

&

MITCHELL, LTD.

203

N.LaSalle Street, Suite 2500

Chicago, Illinois 60601

(312)245-7500

N:\3YS23\61 85\NOTFIL\00420003.doc

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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 ofthe 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.

,~ubscribedand/worn to befo;e me this

f~

day of

_____________,

2004. /

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---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MATE TECHNOLOGIES, INC.

.

)

Complainant,

)

FEB

10

2004

V.

)

PCB No.

2004-075

OF

ILLINOIS

)

(Enforcement X)

.

On Control Boarcj

F.LC. AMERICA CORPORATION

)

)

Respondent.

)

REPLY OF RESPONDENT 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 of its 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 FTC’s arguments and pontificates

broadly that “effluents, emissions and wastes must be intensively

. . .

managed.” FTC

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

5/1

etseq.

---

II. Argument

A. Counts I through VII are Frivolous and Legally and Factually Insufficient

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 of concern can constitute “waste” or result in a violation

ofthe 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 of ongoing production does not mean such material has been disposed,

“discarded” or constitutes waste. The Response and Complaint reinforce this as follows:

-

Mate has cited no case law contrary to FTC’s position. Other than referring in

passing to an inapplicable description of discarded material at 35 Ill. Adm. Code

§721.1 02(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 FTC left the materials of concern in place. Mate has not

alleged that FTC failed to periodically conduct janitorial or maintenance activities

at the Property to remove the materials or that FTC mishandled substances after

they had been collected or stored.

-

Mate has not alleged that FTC 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 FTC 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 orholding

of Boyer v. Harris,

PCB 96-151

(September 4, 1997) (chipped and peeling lead-based paint throughout a structure,

L

---

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 FTC accepts wastes from other parties 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 ofthe Act. As there are no substantive allegations beyond industrial

operations in the ordinary course, 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 entirety because 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:

“FTC’s emission of oil has been injurious to human health because it has been

inhaled by persons in or near the Property.”

Complaint, ~J73;

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:

“The complaint elaborates that the alleged injuries and interference include:

Nausea, dizziness, lightheadedness, headaches, sinus pain, sore throats, eye

irritation, chest pain, adverse effects on those with asthma, coughing.

. .

fatigue,

3

---

breathing difficulty, irritation of upper respiratoiy tract and lower respiratoiy

tract, causing the evacuation ofoffice buildings.

. . .“

Finley,

2002 WL 1876193at

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 inconvenienëe, petty annoyance and minor

discomfort.”3 To allow Count VIII to proceed would render 35 Iii. Adm. Code

§

103.204

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

stationary source emissions of hazardous 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 adoptedits own regime to supplant the federal scheme.

2

Recognizing the weakness of the Complaint, Mate has improperly attached to the Response an exhibit

purporting to be an FTC employee complaint to OSHA. This abuse of procedure 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 FTC 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 00-219 (June 6, 2002);

Trepanier v. Speedway Wrecking Co.,

PCB 97-50

(January 6, 2000).

.

~See

§29 C.F.R. 1910.1000, §29 C.F.R. 1910.25.

-rit

---

Yet, by misreading

dicta

taken out of context, Mate argues that

Gade

does not

preempt Count.VTII. 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 irupliedly 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 ofregulations,

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....

We 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 the same time avoiding duplicative

and possibly counterproductive

regulation. It thus established a

uniform

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 of the 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 ofthe challenged state action on the pre-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 (I) 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

coveredby OSHA indoor 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 of workers and nonworkers alike would generally not 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 of the

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

FTC hasC.locatedCountno,TXprecedentis

Duplicitousafter

Gade

supportive ofMate’s position.5

The Motion provides that Count TX 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. JFCO ICS-

Chicago, Inc.,

PCB 02-208 (August 8, 2002). These contentions should be rejected.

The only Illinois cases located by FTC construing

Gade

and finding no preemption are not applicable or

relevant; they conclude that certain actions pursuant to the Illinois Structural Work Act are outside the

scope of OSHA standards or were expressly saved.

See Davis v. States Drywall and Painting,

268

Ill.App.3d 704, 645 N.E.2d 304 (1st Dist. 1994);

Kerker v. Elbert,

261 Ill.App.3d 924, 634 N.E.2d 482 (4tI~

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 facts or laws at issue in citizen complaint);

White v. Van Tine,

PCB 94-150 (June 23, 1994) (no indication that Agency initiated a notice of violation

proceeding or investigated same facts or acted pursuant to same laws at issue in citizen complaint);

Gardner v. Twp. High School District 211,

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

pursuant to county code).

7

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of an official written Agency notice of violation

afier 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 be.en concluded.

D. Counts II-VIII Seek Relief that cannot be Granted

Mate has not refuted the Motion. As to Counts TI-VIT, any remedy cannot be

Thearbitrary,Responsecapriciousdoes notor demonstrateunreasonable;how,it

mustwherebeartherea rationalcan

be norelationshipbar to the

tosettlementthe harm.of7

dust in the first place, remediation can be related to the filing ofa 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 of any 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.

Respectfully submitted,

One ofthe Attorneys for Respondent

Jeremy A. Gibson

Mitchell S. Chaban

MASUDA, FU~AI,ETFERT & MITCHELL, LTD.

203 North LaSalle Street, Suite 2500

Chicago, Illinois 60601

7See, e.g.,

ESG Watts, Inc. v. Illinois Pollution Control Board, 282 Ili.App.3d 43, 668 N.E.2d 1014

(4th

Dist. 1996)

Q

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Via Fax

Complaint#

20431146

Notice of

Mr. Charles J. Shields

Corrective Action

Occupational Safety and Health Administration

365

Smoke

Tree Plaza

Dear Mr. Shields,

Enclosed please find a copy of the air quality sampling results collected during

the industrial hygiene visit by Mr. Robert Pietschmann of the Illinois Department

of Commerce and Community Affairs on Friday, 21 March 2003. The samplings

were taken at our Itasca facility at 750 Rohlwing Road. in Itasca, Illinois.

The survey results indicated that our employees were not exposed to

concentrations that exceed the OSHA PEL (Permissible Exposure Limit).

The results of the survey have been posted along

with a copy ofAppendix D

29 CFR

1910.134. Employees wearing respirators where same is not required

have been made aware of the advisory information contained in Appendix P.

This facility is scheduled to close in August, 2003. Current operations conducted

at this location will be moved to our B(oomingdale, Illinois operation at that time.

If you have any questions, please contact me at (630) 871 —7609

ext 165

or

by e-mail at dschneider~ficamerica.com.

Yours truly,

Daniel C. Schneider

Safety Engineer

End: Air Sampling results

~ ATTACHNENT

485

East

Lies

Road Carol Stream, IL 60188

Telephone 630-871-7609. Facsimile 630-871-2631

---

•s4~t U.S. DEPARTMENT

OF LABOR

Occupational Safety

and Health

Administration

365

Smoke Tree Plaza

North

Aurora, IL 60542-1798

(630) 896-8700

Fax: (630) 892-2160

June 18, 2003

Mr. Daniel C. Schneider

-

Safety Engineer

FTC America

Corp.

485

E. Lies Rd.

Carol Stream, IL 60188

Complaint 204113039

Dear Mr. Schneider:

Thank you for your response to the above complaints. It was received in our office on June 13,

2003. Your response was reviewed and appeared to be adequate to resolve the safety/health

hazards.

You may consider this matter closed, unless the complainant disputes the response, suggesting that

the problem still exists. The complainant has 10 business days to respondto our correspondence.

Thank you for your concern for a safe and healthy workplace. Your prompt response was

appreciated.

Sincerely,

Charles J. Shiet~1s

Area Director

lcg

~ATTACHNENT

L.

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PROOF OF SERVICE

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

MOTION TO

SUPPLEMENT

THE

REPLY

OF

RESPONDENT IN

SUPPORT OF ITS MOTION TO

DISMISS OR, IN THE

ALTERNATIVE, 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

_______

dayof

..

c

,

2004.

.1

Subscribed ~i~l sworn to before me this

~

day ~

LA~i/~~_4.~._,2004.

Notary Public

(

~

~

ii~’riiLt.~NE BARRY

~

~

C,

~

OF ILLINOIS

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