REC~VW,
    CLERK’S OFFICE
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    CHAMPAIGN COUNTY, ILLINOIS
    OCT 142003
    STATE OF ILLINOIS
    Pollution Control Board
    MORTON F. DOROTHY,
    Complainant,
    vs.
    FLEX-N-GATE CORPORATION,
    an Illinois Corporation,
    Respondent.
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    No. PCB 05-049
    CERTIFICATE OF SERVICE
    I, the undersigned, certify that I have served the listed documents, by first class
    mail, upon the listed persons:
    ~2L’~
    MOTION TO JOIN AGENCY AS PARTY IN INTEREST AND TO EXTEND TIME TO
    RESPOND TO MOTION TO DISMISS
    AFFIDAVIT IN SUPPORT OF MOTION TO JOIN AGENCY AND EXTEND TIME TO
    RESPOND TO MOTION TO DISMISS
    COMPLAINT (to Agency only)
    MOTION TO DISMISS (to Agency only)
    Thomas G. Safley
    Hodge Dwyer Zeman
    3150 Roland Avenue
    Post Office Box 5776
    Springfield IL 62705-5776
    Morton F. Dorothy, Complainant
    Morton F. Dorothy
    804 East Main
    Urbana IL 61802
    217/384-1010
    Division of Legal Counsel
    Illinois Environmental Protection Agency
    1021 North Grand Avenue East
    P.O. Box 19276
    Springfield, IL 62794-9276
    CLERK’S OFFICE
    OCT 14 2003
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD r
    a
    INOI
    CHAMPAIGN COUNTY, ILLINOIS
    POUU~OnControl Board
    MORTON F. DOROTHY,
    )
    )
    Complainant,
    )
    )
    vs.
    )
    No. PCB 05-049
    )
    FLEX-N-GATE CORPORATION,
    )
    an Illinois Corporation,
    )
    )
    Respondent.
    )
    MOTION TO JOIN AGENCY AS PARTY IN INTEREST
    AND TO EXTEND TIME TO RESPOND TO MOTION TO DISMISS
    Complainant, Morton F. Dorothy, moves that the Board join the Illinois
    Environmental Protection Agency (Agency) as a party in interest, and extend the time
    for response to the motion to dismiss filed on or about October 7, 2004, and for reason
    states as follows:
    1.
    As alleged in paragraph 12 of the complaint, prior to the incident alleged in the
    complaint, respondent claimed that the facility operated pursuant to 35 III. Adm.
    Code 703.123(a) and 722.134(a), as a large quantity generator of hazardous
    waste which is treated on-site in tanks, without a RCRA permit or interim status.
    2.
    Based on correspondence between respondent and the Agency, respondent has
    claimed exemption pursuant Sections 703.123(a) and 722.134(a) at least since
    March, 2001.
    3.
    Sections 703.123(a) and 722.134(a) limit storage of hazardous waste to 90 days,
    require compliance the contingency plan and other Board rules, and require a
    RCRA permit or interim status if the storage exceeds 90 days.
    4.
    Respondent filed a motion to dismiss the complaint on or about October 7, 2004.
    5.
    Rather than arguing Sections 703.123(a) and 722.134(a), the motion to dismiss
    claims that the facility is exempt from the RCRA permit requirement based on the
    “elementary treatment unit” and “wastewater treatment unit” exclusions. If
    accepted by the Board, this argument would allow the facility to operate outside
    the RCRA program, without complying with the conditions of Section 722.134(a).
    6.
    Respondent appears to be repudiating longstanding regulatory interpretations
    arrived at between the Agency and the respondent. The Agency needs to be
    notified of this, and be given the opportunity to review its files in this matter to
    determine how the earlier agreements as to the permit status for this facility were
    arrived at.
    7.
    Although complainant has information regarding the plating line at this facility,
    complainant has very little information concerning the painting line and other
    units at the facility. In particular, it is possible that there are hazardous waste
    treatment and storage units at the facility about which complainant has no
    knowledge, and which control the proper determination of the permit status.
    8.
    Determining whether the facility is exempt from the RCRA permit requirement
    pursuant to the “elementary neutralization unit” and “wastewater treatment unit”
    exclusions requires an overall assessment of all the units at the facility, which
    would require inspections and input from the Agency.
    9.
    The Agency has an interest in the proper application of the RCRA permit
    requirement to the facility, which interest may be determined by the Board’s
    order in this case.
    10.
    Joinder of the Agency as a party in interest is allowed pursuant to 35 III. Adm.
    Code 101 .404.
    11.
    Complainant is not requesting that the Agency take a position on the merits of
    the case.
    12.
    Complainant will serve a copy of this motion, together with a copy of the
    complaint and motion to dismiss, on the Agency.
    WHEREFORE complainant prays:
    A.
    That the Board order the Agency joined as a party in interest..
    B.
    That the Board request that the Agency respond to the motion to dismiss filed by
    the respondent on or about October 7, 2004, specifically addressing the question
    of RCRA permit status, which exemptions from the RCRA permit requirement
    apply, and listing the treatment, storage and disposal units at the facility.
    C.
    That the Board extend the time for responding to the motion to dismiss to allow
    the Agency reasonable time to respond.
    Morton F. Dorothy
    804 East Main
    Urbana IL 61802
    M0~~~
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    217/3841010
    Morton F. Dorothy, Complainant

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