RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS
POLLUTION CONTROL
BOARD OCT 12 2004
MORTON F. DOROTHY,
Complainant,
FLEX-N-GATE CORPORATION,
an Illinois corporation,
Respondent.
)
)
)
)
)
PCB No.
05-49
)
)
)
)
)
STATE OF ILLINOIS
Pollution Control Board
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(VIA
FIRST CLASS MAIL)
Mr. Morton F. Dorothy
804 East Main
Urbana, Illinois 61802
(VIA
FIRST CLASS
MAIL)
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk of
the Illinois Pollution Control Board an original and nine copies ofa MOTION TO
DISMISS, copies ofwhich are herewith served upon you.
Respectfully submitted,
Dated: October 7, 2004
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box
5776
Springfield, Illinois
62705-5776
(217) 523-4900
FLEX-N-GATE CORPORATION,
Respondent,
V.
THIS FILING SUBMITTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
MOTION TO DISMISS upon:
Ms. Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Mr. Morton F. Dorothy
804 East Main
Urbana, Illinois 61802
by depositing said documents in the United States Mail in Springfield, Illinois, postage
prepaid, on October 7, 2004.
oms
.
afleY)
GWST:OO3fFil/NOF andCOS
—
Motion to Dismiss
RECE WED
BEFORE THE ILLINOIS POLLUTION
CONTROL
BOA1~ERK’SOFFICE
CHAMPAIGN
COUNTY,
ILLINOIS
OCT 122004
MORTON F. DOROTHY,
)
STATE OF ILLiNOIS
)
Pollution Control Board
Complainant,
)
)
V.
)
PCB
05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
MOTION TO DISMISS
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and moves the Illinois
Pollution Control Board (the “Board”) to dismiss Counts I, II, III, IV, V and VI of
Complainant’s Complaint in the above-captioned matter for failure to state a claim upon
which relief can be granted. In support ofthis Motion, Flex-N-Gate states as• follows:
I.
INTRODUCTION
1.
On September 8, 2004, Complainant filed a Complaint against Flex-N-
Gate with the Board and served that Complaint on Flex-N-Gate. ~ Plaintiff’s
Complaint, Plaintiff’s Proof ofService.
2.
In summary, Complainant alleges that at Flex-N-Gate’s facility at 6Q1
Guardian Drive in Urbana, Illinois (“Facility”), certain “chemicals in water solution” are
spilled and enter a treatment system (“Treatment System”). Complaint at 1,
¶~f
3,
5-6.
3.
Complainant further alleges that on August
5,
2004, sulfuric acidwas
spilled at the Facility and came in contact with some substance associated with this
spillage ofchemicals to the Treatment System, “producing hydrogen sulfide gas.”
Complaint, at 1-2, ¶~j
3-15.
4.
In connection with these alleged facts, Complainant argues that Flex-N-
Gate does not have a required permit for its Facility under the federal Resource
Conservation and Recovery Act, 42 U.S.C. 6901 et seq. (“RCRA”), and that in
responding to this alleged incident, Flex-N-Gate vIolated several Illinois’ regulations
promulgated under RCRA. j4~,Counts 1 to 6.
5.
Flex-N-Gate does not admit
~
factual allegations ofComplainant’s
Complaint; regardless however, as set forth below, even if these allegations were true,
each Count ofComplainant’s Complaint fails to state a claim upon which relief can be
granted, and, therefore, the Board should dismiss Complainant’s Complaint.
II.
LEGAL
STANDARD
6.
Section 10 1.506 ofthe Board’s procedural rules provides that parties may
file “motions to strike, dismiss or challenge the sufficiency ofany pleading within 30
days after the service ofthe challenged document.”
35
Iii. Admin. Code
§
101.506.
•
7.
When ruling on a Motion to Dismiss, the Board applies “the same
principles applied to Illinois Code ofCivil Procedure 2-615 and 2-619 motions to strike
or dismiss.” County of DuPage v. Waste Management ofIll., AC No. 94-92, 1994 Ill.
ENV LEXIS 1488, at *4 (Ill.Pol.Control.Bd. Dec. 1, 1994).
8.
“Forpurposes ofruling on a motion to dismiss, all well plead facts
contained in the pleading must be taken as truej and all inferences from them must be
drawn in favor ofthe nonmovant.” Lone Star Indus., Inc. v. Illinois Environmental
2
Protection Agency,
PCB No.
03-94, 2003 Ill.
ENV. LEXIS
133,
at
**2..3
(Ill.Pol.Control.Bd. March 6, 2003) (citations omitted).
9.
However, while the Board, like a court, “must take all well-pleaded facts
as true, it must also disregard mere conclusions oflaw or fact unsupported by the facts
alleged.” Oravek by Brann v. Community Sch. Dist. 146, 264 Iii. App. 3d 895, 898 (1st
Dist. 1994).
10.
Further, “although the Board must construe pleadings liberally with a
view to doing substantial justice between the parties, the plaintiff is not relieved from the
duty ofincluding sufficient factual averments in his complaint,” and Plaintiff’s
Complaint “must allege sufficient facts to bring the plaintiff’s claim within the scope ofa
legally recognized cause ofaction.” j~
III.
ANALYSIS
A.
Count I of Complainant’s Complaint Fails to State a Claim upon
which Relief caa be Granted.
11.
Count I ofComplainant’s Complaint asserts that Flex-N-Gate is
“operating a hazardous waste treatment and storage facility without a RCRA permit or
interim status, in violation ofSection 21 (f) ofthe Illinois Environmental Protection Act
(the “Act”) 415 ILCS
5/1
et seq. and 35 Ill. Adm. Code
§
703.12 1(a).” Complaint,
Count 1,~1.
12.
Section 21(f) ofthe Act states in relevant part that “no person shall...
conduct any hazardous waste-storage, hazardous waste-treatment or hazardous waste-
disposal operation.
. .
without a RCRA permit for the site issued by the Agency under
subsection (d) of Section 39 ofthis Act.” 415 ILCS
5/21(f)(1).
3
13.
Section 703.12 1(a) states in relevant part that “no person may conduct
any hazardous waste storage, hazardous waste treatment, or hazardous waste disposal
operation.
. .
without a RCRA permit forthe HWM (hazardous waste management)
•
facility.
. . .“
35 Ill. Admin. Code
§
701.121(a).
14.
However, Section 703.123(e) states that “the following persons are
among those that are not required to obtain a RCRA permit:
. . .
e) am owner or operator
ofan elementary neutralization unit or wastewatertreatment unit, as defined in 35 Ill.
Adm. Code 72Q.110.” 35111. Admin:Code
§
703.123(e).
15.
Section 720.110 defines “wastewater treatment unit” in relevant part as a
device that: (1) “is part of a wastewater treatment facility that has an NPDES i.e.,
National Pollutant Discharge Elimination System permit.
. .
or a pretreatment permit or
authorization to discharge” to a publicly owned treatment works (“POTW”); (2)
“receives and treats or stores an influent wastewater that is a hazardous waste” and, (3)
“meets the definition oftank or tank system.” 35 Ill. Admin. Code
§
720.110.
16.
Complainant argues that at the Flex-N-Gate facility, “chemicals fall to the
floor, where they accumulate in sumps to be pumped to a hazardous waste treatment
unit.” Complaint at 1,
¶
6.
17.
However, taking Plaintiff’s allegations as true, which the Board must for
purposes ofthis Motion, establishes that the Treatment System is a “wastewater treatment
unit” exempt from RCRA permitting requirements.
4
1.
PlaintiffAlleges that the Treatment System is Partofa Wastewater
• Treatment Unit that Discharges to a POTW.
18.
Again, the first element ofthe definition of “wastewater treatment unit” is
that a system “is part ofa wastewater treatment facility that has an NPDES permit..
.
or
a pretreatment permit or authorization to discharge” to a POTW. 35 Ill. Admin. Code
§
720.110.
19.
Plaintiffalleges that “treated wastewater is discharged” from the
Treatment System “to a sanitary sewer owned by the Urbana Champaign Sanitary
District.” Complaint at 2, ¶10.
•
20.
Thus, taking Plaintiff’s allegations as true, those allegations establish that
the first element of the definition of “wastewater treatment unit” is met.
2.
PlaintiffAlleges that the Treatment System Receives and Stores
Iniluent Wastewater that is a Hazardous Waste.
21.
The relevantpart of the second element ofthe definition of“wastewater
treatment unit” is that a system “receives and treats or stores an influent wastewater that
is a hazardous waste.
. .
or generates and accumulates,
. . .
or treats or stores, a
wastewater treatment sludge that is a hazardous waste.” 35 Ill. Admin. Code
§
720.110.
22.
Complainant alleges that the materials that enter the System are “various
chemicals in water solution,” which are “spilled” on “the floor,” and which “spillage.
.
“is hazardous waste.” Complaint at 1,
¶~J
5-7.
23.
Thus, taking Plaintiff’s allegations as true, those allegations establish that
the second element ofthe definition of “wastewater treatment unit” is met.
5
3.
Plaintiff’s Alleges that the Treatment System Meets the Definition
of Tank or Tank System.
24.
The third element ofthe definition of“wastewater treatment unit” is that a
system “meets the definition of tank or tank system.” 35 Ill. Admin. Code
§
720.110.
25.
Section 720.110 defines “tank” as “a stationary device, designed to
contain an accumulation of hazardous waste that is constructed primarily ofnonearthen
materials (e.g., wood, concrete, steel, plastic) which provide structural support.” Id.
26.
Section 720.110 defines “tank system” as “a hazardous waste storage or
treatment tank and its associated ancillary equipment and containment system.” j~.
27.
Section 720.110 defines “ancillary equipment” as:
any device, including, but not limited to, such devices as piping, fittings,
flanges, valves, and pumps, that is used to distribute, meter, or control the
flow ofhazardous waste from its point ofgeneration to storage or treatment
tanks, between hazardous waste storage and treatment tanks to a point of
disposal onsite, or to a point ofshipment for disposal off-site.
Id.
28.
Section 720.110 defines “sump” as “any pit or reservoir that meets the
definition oftank and those troughs or trenches connected to it that serve to collect
hazardous waste for transport to hazardous waste storage, treatment, or disposal
facilities.” Id.
29.
Plaintiff alleges that at the Facility, “tanks are mounted on concrete piers
above a coated concrete floor,” and “spilled chemicals fall to the floor, where they
accumulate in sumps to be pumped to a hazardous waste treatment unit.” Complaint at 1,
¶
6 (emphasis added).
6
30.
Thus, Plaintiff’s allegations establish that the third element ofthe
definition of“wastewater treatment unit” is met, i.e., that the coated floor and sump at the
Facility, in connection with the associated wastewater treatment equipment, “meet the
definition oftank or tank system.”
••••~•
4.
Because the Treatment System is a Wastewater Treatment Unit, No
RCRA Permit is Required.
31.
As discussed above, taking Plaintiff’s allegations as true, (1) the
Treatment System discharges wastewater to a POTW; (2) the Treatment System treats an
influent wastewater that is a hazardous waste; and (3) the Treatment System meets the
definition of“tank” or “tank system.”
32.
Accordingly, the Treatment System is a “wastewater treatment unit” that
is exempt from RCRA permitting requirements under 35 Ill. Admin. Code
§
703.123(e).
33.
Therefore, the Board must dismiss Count I ofPlaintiff’s Complaint, which
alleges that Flex-N-Gate is required to obtain a permit for the Treatment System.
B.
Count II of Complainant’s Complaint Fails to State a Claim upon
which Reliefcan be Granted.
34.
Count II ofComplainant’s Complaint asserts that Flex-N-Gate violated
Section 725.151(b) by failing to properly carry out its contingency plan in response to the
alleged spill ofsulfuric acid. Complaint, Count II.
35.
Section 725.15 1(b) states that “the provisions ofthe contingency plan
must be carried out immediately whenever there is a fire, explosion or release of
hazardous waste or hazardous waste constituents which could threaten human health or
the environment.” 35 Ill. Admin. Code
§
725.151(b).
7
36.
For the reasons stated below, the Board must dismiss Count II of
Complainant’s Complaint on the grounds that Count II fails to state a claim on which
relief can be granted.
1.
Section 725.151(b) does Not Apply to Wastewater Treatment Units.
37.
As noted above, the Treatment System is a “wastewater treatment unit.”
See discussion above.
38.
Part 725 ofthe Board’s regulations, including Section 725.15 1(b), “doFes
not apply to.... tihe owner or operator ofan elementary neutralization unit or~
wastewater treatment unit as defined in 35 Ill. Adm. Code 720.110.” 35 Ill. Admin. Code
§
725.101 (c)( 10) (emphasis added).’
39.
Accordingly, Flex-N-Gate could not have violated Section 725.151(b),
and the Board should dismiss Count II on this basis alone.
2.
Even ifSection 725.151(b) didApply. Section 725.151(b) was not
Triggered because No Release of “Hazardous Waste” or
“Hazardous Waste Constituents” Occwred.
40;
Again, Section 725.151(b) provides that “the provisions ofthe
contingency plan must be carried out immediately whenever there is a fire, explosion or
release ofhazardous waste orhazardous waste constituents which could threaten human
health orthe environment.” 35 Ill. Admin. Code
§
725.151(b) (emphasis added).
41.
Complainant does not allege that “there was a fire.” ~ Complaint.
42.
Complainant does not allege that “there was an explosion. See
‘Note that the minor exception to this rule for wastewater treatment units “diluting hazardous ignitable
(DOOl) wastes (other than the DOOl High TOC Subcategory defmedin
35
Iii. Adm. Code 728.Table T) or
reactive (D003) waste in order to remove the characteristic before land disposal” does not apply here, because,
among other reasons, Flex-N-Gate discharges its wastewater to a POTW and does not dispose of it by land
disposal. ~ discussion above.
•
8
•
43.
Rather, Complainant alleges that “hydrogen sulfide gas” was emitted
(Complaint at 2, ¶15), and that “the hydrogen sulfide emission was a release of
hazardous waste or hazardous waste constituents that could threaten human health or the
environment within the meaning of Section 725.151(b).”
~,
at
5,
¶2.
a.
UncontainedHydrogen Sulfide Gas is not a “Waste “for
Purposes ofRCRA.
44.
Uncontained gases are not “wastes” regulated by RCRA.
45.
Section 3.220 ofAct defines hazardous waste as “a waste, or combination
ofwastes, which.
. .
poses a substantial present or potential hazard to human health or
the environment.
. .
and which has been identified, by characteristics or listing, as
hazardous pursuant to Section 3001 ofthe Resource Conservation and Recovery Act of
1976, P.L. 94-580 or pursuant to Board regulations.” 415 ILCS 5/3.220 (emphasis
added).
46.
Section 3.535 ofthe Act defines waste as “as any garbage, sludge from a
waste treatment plant, water supply treatment plant, or air pollution control facility or
other discarded material, including solid, liquid, semi-solid, or contained gaseous
material
. . .“
415 ILCS
5/3.535
(emphasis added).
47.
“When determining whether material is a ‘waste,’ the Board considers
federal court interpretations ofthe definition of ‘solid waste’ under federal RCRA
regulations.” People v. State Oil Company, PCB No. 97-103,
1999
Ill. ENV LEXIS 391,
at *9 (Ill.Pol.Control.Bd. Aug. 19, 1999) (citing R.R. Donnelley & Sons Co. v. Illinois
Environmental Protection Agency, PCB 88-79, 1989 Ill. ENV LEXIS 530, at
*5
(Ill.Pol.Control.Bd. Feb. 23, 1989). Accord, Universal Scrap Metals, Inc. v. Flexi-Van
9
Leasing, Inc., PCB No. 99-149, 2001 Ill. ENV LEXIS 154, at *15 (Ill.Pol.Cbntrol.Bd.
Apr.
5,
2001).
48.
In Helter v. AK Steel Corp., 1997 U.S. Dist. LEXIS 9852 (S.D.Oh. 1997),
•the United States District Court forthe Southern District Of Ohio dismissed a claim that a
release of“coke oven gas” implicated RCRA, noting that “the only gaseous substances
included in RCRA’s definition of ‘solid waste’ are ‘contained gaseous materials,” and
holding that: “in order to be considered a solid waste for RCRA purposes, the gaseous
material must beboth discarded andcontained,” and that “the plain language of42
U.S.C.
§
9603(27) excludes the leaked COG, in its gaseous form, from the definition of
‘solid waste’ and, thus, from RCRA’s coverage. jçi. at **30, 31, 32 (emphasis added).
49.
The United States Environmental Protection Agency also has
acknowledged that uncontained gases are not regulated as “wastes” under RCRA. ~
~
Hazardous Waste Management System: Identification and Listing ofHazardous
Waste CERCLA Hazardous Substance Designation; Reportable Quantity Adjustment, 54
FR 50968, at 50973 (Dec. 11, 1989) (“Our authority to identify or list a waste as
hazardous under RCRA is limited to containerized or condensed gases
(i.e.,
section
1004(27) ofRCRA excludes all other gases from the definition of solid wastes and thus
cannotbe considered hazardous wastes).”) (Emphasis added).
50.
Plaintiff alleges that the alleged hydrogen sulfide gas release was
uncontained. Complaint at 3.
51.
Taking Plaintiff’s allegations as true, the alleged hydrogen sulfide gas was
not a “waste” regulated by RCRA.
10
b.
The alleged Hydrogen Sulfide Gas was not a “Hazardous
Waste Constituent.”
52.
The alleged hydrogen sulfide gas was not a “hazardous waste constituent.”
53.
The term “hazardous waste constituent” is not defined in the Act but is
defined in Section 720.110 as “a constituent that caused the hazardous waste to be listed
in 35 Ill. Adm. Code 721.Subpart D, or a constituent listed in 35 Ill. Adm. Code
721.124.” 35 Ill. Admin. Code
§
720.110.
54.
Hydrogen sulfide is not listed as a constituent that caused any hazardous
waste to be listed in Part 721 Subpart D. $.~35 Ill. Admin. Code, Part 721, Appendix G
(“Basis for Listing Hazardous Wastes”).
55.
Hydrogen sulfide is not a “constituent listed in 35 Ill. Adm. Code
721.124.” See 35 Ill. Admin. Code
§
721.124.
56.
Thus, hydrogen sulfide is not a “hazardous waste constituent” forpurposes
ofRCRA.
c.
Because Uncontained Hydrogen Sulfide Gas is not a
“Waste” Regulated by RCRI4, and is not a “Hazardous
Waste Constituent, “Section 725.151(b) was not Triggered.
57.
Again, the requirements of Section 725.151(b) are only triggered in the
event ofa “fire, explosion orrelease of hazardous waste orhazardous waste
constituents.” 35 Ill. Admin. Code § 725.15 1(b).
58.
As discussed above, Plaintiff has not alleged any fire or explosion, and
any release ofuncontained hydrogen sulfide gas is not a “release ofhazardous waste or
hazardous waste constituents.”
11
59.
Accordingly, even if a release ofhydrogen sulfide gas had occurred as
Complainant alleges, that release did not implicate Section 725.151(b), because (1)
Section 725.151(b) does not apply to Flex-N-Gate’s wastewater treatment unit, and (2)
even if it did apply, the prerequisites for applyingSection 725.151(b) —i.e., a “fire,
explosion or release ofhazardous waste or hazardous waste constituents” — did not occur.
60.
Thus, the Board should dismiss Count II of Complainant’s Complaint.
C.
Count III of Complainant’s Complaint Fails to State a Claim upon
•
which Relief can be Granted.
61.
Count III asserts that Flex-N-Gate violated Section 725.156(j) by
“failing to report the incident to the Agency within fifteen days.” Complaint at 6,
Count III, ¶2.
62.
Section 725.156(j) states that “the owneror operator shall note in the
operating record the time, date, and details ofany incident that requires implementing the
contingency plan,” and “within 15 days after the incident, it shall submit a written
report on the incident to the Director.” 35 Ill. Admin. Code
§
725.156(j).
63.
As discussed above, Part 725 does not apply to Flex-N-Gate’s wastewater
treatment unit. ~ discussion above.
64.
Further, by its own terms, Section 725.156(j) only applies to an “incident
that requires implementing the contingency plan.”
65.
As discussed above, the alleged release of hydrogen sulfide gas did not
“require implementing the contingency plan” because no fire or explosion occurred, and
hydrogen sulfide gas is not a “waste” or “hazardous waste constituent” under RCRA.
See discussion above.
12
66.
For the reasons stated above, the Board also should dismiss Count III of
Complainant’s Complaint.
D.
Count IV of Complainant’s Complaint Fails to State a Claim upon
which Reliefcan be Granted.
67.
Count IV asserts that Flex-N-Gate violated Section 725.154(b) by
“failing to immediately amend its contingency plan to address the possibility ofan
acid spill resulting in a hydrogen sulfide release.” Complaint at 6-7.
68.
Section 725.154(b) states that “the contingency plan must be reviewed
and immediately amended, if necessary, whenever:
. . .
b) the plan fails in an
emergency.
. .“
35 Ill. Admin. Code
§
725.154(b).
69.
As discussed above, Part 725 does not apply to Flex-N-Gate’s wastewater
treatment unit.
$~
discussion above.
70.
Further, by its own terms, Section 725.154(b) only applies where a
contingency plan “fails.”
71.
As discussed above, the alleged release ofhydrogen sulfide gas did not
require implementing the contingency plan because no fire or explosion occurred, and
hydrogen sulfide gas is not a “waste” or “hazardous waste constituent” under RCRA.
See discussion above.
•
72.
IfFlex-N-Gate’s contingency plan was not required to have been
implemented, it could not have “failed.”
•
73.
Thus, for the reasons stated above, the Board also should dismiss Count
IV ofComplainant’s Complaint.
13
E.
Count V ofComplainant’s Complaint Fails to State a Claim upon
which Reliefcan be Granted.
74.
Count V asserts that Flex-N-Gate violated Section 725.154(c) because
“the facility has changed in a way that materially increases the potential forreleases of
hazardous waste constituents, specifically, the hydrogen sulfide emission incident.
demonstrated that an acid spill could result in a release ofhydrogen sulfide,” and “has
changed in a way that changes the response necessary in an emergency,” and Flex-N-
Gate “has not amended the contingencyplan.” Complaint at 7-8, Count V,
¶~
3-5.
75.
Section 725.154(c) states that:
the contingency plan must be reviewed and immediately amended, if
necessary, whenever.
. .
the facility changes--in its design, construction,
operation, maintenance or other circumstances--in a way that materially
increases the potential for fires, explosions or releases ofhazardous waste
orhazardous waste constituents or changes the response necessary in an
emergency.
35 Ill. Admin. Code
§
725.154(c).
76.
As discussed above, Part 725 does not apply to Flex-N-Gate’s wastewater
treatment unit. See discussion above.
77.
Further, as also discussed above, the alleged hydrogen sulfide gas was not
a “waste” or a “hazardous waste constituent.” See discussion above.
78.
Further, as discussed above, the alleged release ofhydrogen sulfide gas
did not require implementing the contingency plan, so, ‘by definition, no “emergency” for
purposes ofSection 725.154(c) occurred. ~ discussion above.
•
79.
•
Thus, for the reasons stated above, the Board also should dismiss Count V
of Complainant’s Complaint.
14
F.
Count VI of Complainant’s Complaint Fails to State a Claim upon
which Relief can be Granted.
80.
Count VI alleges that Flex-N-Gate violated Section 725.151(b) by
“failing to carry out the contingency plan in response to the alleged sulfuric acid
spill.” Plaintiff’s Complaint at 9, ¶19.
81.
Section 725.151(b) states that “the provisions ofthe contingency plan
must be carried out immediately whenever there is a fire, explosion or release of
hazardous waste or hazardous waste constituents which could threaten human health or
the environment.” 35 Ill. Admin. Code
§
725.151(b).
82.
As discussed above, however, Part 725 does not apply to Flex-N-Gate’s
wastewater treatment unit. See discussion above.
83.
Further, as also discussed above, Plaintiff has not alleged any fire or
explosion, and any release ofuncontained hydrogen sulfide gas is not a “release of
hazardous waste or hazardous waste constituents.” See discussion above.
84.
Thus, even if Section 725.151(b) did apply to the wastewater treatment
unit, no “fire, explosion or release ofhazardous waste or hazardous waste constituents”
occurred, and the requirement to carry out “the provisions ofthe plan” was not
triggered.
85.
Thus, the Board also should dismiss Count VI of Complainant’s
Complaint.
15
IV.
CONCLUSION
WHEREFORE~the Respondent FLEX-N-GATE CORPORATION respectfully
moves the Illinois Pollution Control Board grant this Motion to Dismiss and to award
Flex-N-Gate such other relief as the Illinois Pollution Control Board deems just.
Respectfully submitted,
FLEX-N-GATE CORPORATION
•
‘
Respondent,
By:
One ofIt ~~1Jor~~7
Dated: October 7, 2004
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:003/FillMotion to Dismiss
16
