BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFflOE
FEB 20
200k
MATE TECHNOLOGIES,
INC.
)
STATE OF ILLINOIS
pollution Control Board
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
PLEA1~ETAKE
NOTICE
that
on
the
20th
day
of February,
2004
F.I.C
AMERICA.
CORPORATION, by and through its attorneys, Jeremy A. Gibsonand MitcheliChaban~ofMAsuDA,
FUNAI,
EIFERT
&
MITCHELL,
LTD.,
shall
file
its
RESPONSE
OF
RESPONDENT
IN
OPPOSITION TO COMPLAINANT’S MOTION TO EXTEND TIME TO RESPOND TO
RESPONDENT’S DISCOVERY
AND
TO ESTABLISH DISCOVERY SCHEDULE
with
the
Office ofthe Clerk ofthe Pollution Control Board, a copy ofwhich is hereby served upon you.
—
-Oi~ieofItsAttorneys
“~
Jeremy A. Gibson
Mitchell S. Chaban
MASUDA, FUNAI,
EIFERT
&
MITCHELL, LTD.
203 N.LaSalle Street, Suite 2500
Chicago, Illinois
60601
(312)245-7500
N:\SYS23\61 85\NOTFIL\00420003.doc
PROOF OF SERVICE
I, the undersigned, do hereby state on oaththat I served the foregoing
NOTICE OF FILING
upon Carey S. Rosemarin, Law Offices ofCarey 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
,
2Q04.
.—
Subscribed and sworn to before me this
2O~t-~
day of
,
2004.
LI’
1~
)‘
NoT
‘‘
Notary Public
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDR
E C E ~V E D
CLERK’S OFFiCE
MATE TECHNOLOGIES, INC.
)
FEB
202004
)
STATE
OF
ILLINOIS
Complainant,
)
Pollution Control Board
)
v.
)
PCB No. 2004-075
)
(Enforcement X)
F.T.C.
AMERICA CORPORATION
)
)
Respondent.
)
RESPONSE
OF RESPONDENT
IN
OPPOSITION TO COMPLAINANT’S
MOTION TO EXTEND TIME TO RESPOND TO RESPONDENT’S
DISCOVERY
AND
TO ESTABLISH DISCOVERY SCHEDULE
Respondent, F.T.C. AMERICA CORPORATION (“FTC”)
opposes
Complainant’s
Motion
to
Extend
Time
to
Respond
to
Respondent’s
Discovery
and
to
Establish
Discovery Schedule (“Motion”) as follows:
1.
Complainant, MATE TECHNOLOGIES, INC. (“Mate”) filed a nine-count.
citizen complaint against FTC,
its tenant, alleging violations ofthe Illinois Environmental
Protection Act.
FTC
has moved to
dismiss the
complaint
and has propounded
its
initial
discovery requests to
Mate.
In turn, Mate has moved to stay its response to such requests
on
the basis
that
FTC
has not
answered
the
Complaint, the
Hearing
Officer has
set no
discovery schedule and the parties may have settlement discussions.
2.
Mate has
chosen
to
initiate
litigation
against
FTC,
which
litigation
FTC
believes to be both
legally and
factually deficient.
Now,
having started the litigation and
alleging
numerous
violations,
Mate
is
asking
that
it
should
not
have
to
provide
information relevant
to
the Complaint
in
order
for FTC
to
defend
itself.
This
is
highly
unusual
for the complaining
party and
is
not
supported
by
either the
Illinois
Pollution
Control
Board
rules,
35
Ill.
Adm.
Code
101.610-101.616
or the
Illinois,
Code of Civil
Procedure or Supreme
Court Rules referred to
therein.
Nothing in the relevant discovery
authorities precludes
FTC
from preparing its
factual
defense.
The relevant
Board rules
simply provide
for
the
setting
of a
schedule,
which
primarily
concerns
the
time
for
completing
discovery;
they
do
not
prohibit
any
particular
starting
time.
In
fact,
the
Supreme Court rules
expressly provide
that
discovery may commence without
leave of
court after all parties have appeared and maybe conducted in any sequence.
Ill.Sup.Ct. R.
201 (d)-(e).
Mate’s reluctance
to
proceed with
what
it has started simply reinforces
the
questionable nature ofthe Complaint explained in the motion to dismiss.
3.
IfMate had
wanted to
provide time for discussion of settlement,
it simply
had to
ask FTC for an
extension for such purposes.
Similarly, if Mate needed additional
time to respond to discovery, it simply had to
ask FIC for an
extension for such purposes.
Mate made
no
such extension requests
to
FTC
before
asking
for a
stay.
If Mate
had
asked,
FTC
would
have been willing
to
extend the
time
until
March
1,
2004,
but
not
beyond.
4.
IfMate believes that any ofthe discovery requests were impermissible or
overly burdensome,
it simply could note that
in
its responses and then the parties could
have
attempted
to
work
out
any
discovery
disputes
before
bringing
them
here,
as
contemplated by the applicable rules.
Mate made no
such attempt to
communicate
with
FTC about the scope ofthe discovery requests.’
Mate
suggests
that FIC’s requests for information or documentsdepicting the
construction
of,
operations
at and chemicalsat the relevant property are not calculated to lead todiscoveryof admissible evidence.
However, the Complaint essentially allegesthat the propertyinterior has been contaminated and that
such
situation should be corrected.
As Mate and many other persons conducted manufacturing operations at
such property for decades before FTC
occupied it, and
a remedy, if any, would dependupon the
condition at
the beginning ofthe
occupancy, FTC’s information requests were intended to identify historic, pre-existing
contaminants and sources and were exceedingly reasonable and typical of alleged contamination cases.
2
5.
In addition
to
desiring to
refute Mate’s
allegations
as soon
as
possible,
whether legally through the motion
to
dismiss or factually through
discovery, FTC would
be prejudiced by
a delay in
discovery.
FTC’s
lease of the property at issue
expires
on
April
15,
2004.
Unjustified
delay of discovery would
prevent
FTC
from
conducting
further investigation ofthe property that may be suggested by timely responses by Mate
to
FTC’s discovery
requests.
In
addition,
delay will
exacerbate
the possibility
that
the
activities
of a
third
party,
the
next
occupant,
to
affect
the
conditions
at
the
relevant
property.
6.
As explained in the motion to dismiss, the nine counts ofthe Complaint all
arise
from
the
same
basic
set
of circumstances.
Even
the
partial
dismissal
of the
Complaint will have no bearing on the scope of discovery.
7.
While
asking
to
delay its
time
to
respond
to
FTC’s
discovery
requests,
Mate has not
said
that
it intends
to
delay propounding
discovery to
FTC.
It is
patently
unfair for Mate to
ask for additional time or a stay, without addressing its
own discovery
requests.
Additionally, of course, Mate may opt to submit responsive documents inlieu of responding in detail in
writing to interrogatories.
3
For the foregoing reasons, FIC opposes
any
further delay of Mate’s responses to
FTC’s initial
discovery requests
and
asks that
Mate be
ordered
to
respond within
seven
days of the Hearing Officer’s order as to Mate’s motion.
Respectfully submitted,
Jeremy A. Gibson
Mitchell S. Chaban
MASUDA, FUNAI, EIFERT & MITCHELL, LTD.
203
North LaSalle
Street, Suite 2500
Chicago, Illinois
60601
~~fheys
for Respondent
4
PROOF OF SERVICE
I, the undersigned, do hereby state on oath that
T served the foregoing
RESPONSE OF
RESPONDENT
TN
OPPOSITION TO COMPLAINANT’S
MOTION TO EXTEND TIME
TO RESPOND TO RESPONDENT’S DISCOVERY
AND
TO ESTABLISH DISCOVERY
SCHEDULE
upon Carey S. Rosemarin, Law Offices ofCarey 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.
.
I
Subscribed and sworn to before me this
~~dayof
J~’ri~i-7
,2004.
-
~
~
Notary Public