RECE~VED
    CLERK’S OFFICE
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    CHAMPAIGN COUNTY, ILLINOIS
    STATE OF ILLINOIS
    MORTON F. DOROTHY,
    )
    Pollution Control Board
    )
    Complainant,
    )
    )
    vs.
    )
    No. PCB 05-049
    )
    FLEX-N-GATE CORPORATION,
    )
    an Illinois Corporation,
    )
    )
    Respondent.
    )
    CERTIFICATE OF SERVICE
    I, the undersigned, certify that I have served the listed documents, by first class
    mail, upon the listed persons: o
    fc,/13 /~‘~
    MOTION TO ACCEPT FOR HEARING AND FOR EXPEDITED DISCOVERY
    AFFIDAVIT IN SUPPORT OF MOTION TO ACCEPT FOR HEARING AND FOR
    EXPEDITED DISCOVERY
    Thomas G. Safley
    Hodge Dwyer Zeman
    3150 Roland Avenue
    Post Office Box 5776
    Springfield IL 62705-5776
    Morton F. Dorothy, CompI~inant
    Morton F. Dorothy
    804
    East Main
    Urbana IL 61802
    217/384-1010
    CLERK’S OFFICE
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    CHAMPAIGN COUNTY, ILLINOIS
    STATE OF ILLINOIS
    MORTON F. DOROTHY,
    )
    Pollution Control Board
    )
    Complainant,
    )
    )
    vs.
    )
    No. PCB 05-049
    )
    FLEX-N-GATE CORPORATION,
    )
    an Illinois Corporation,
    )
    )
    Respondent.
    MOTION TO ACCEPT FOR HEARING AND FOR EXPEDITED DISCOVERY
    Morton F. Dorothy, complainant, moves that the Board accept the complaint for
    hearing, and authorize the hearing officer to preside over expedited discovery, and as
    reason says as follows:
    1.
    The complaint was filed on September 8, 2004.
    2.
    Section 31(d) of the Environmental Protection Act (415 ILCS 5/31(d)) and 35 III.
    Adm. Code 103.212(b) allow the respondent to file a “duplicitous or frivolous”
    motion with respect to a citizen complaint within 30 days following the date of
    service.
    3.
    The complaint was mailed to respondent on September 7, and received on
    September 8, 2004.
    4.
    More than 30 days have elapsed since the date of service.
    5.
    Complainant filed a motion to dismiss on or about October 7, 2004.
    6.
    The motion to dismiss did not extend the time for filing a “duplicitous or
    frivolous” motion.
    7.
    The Board normally accepts non-citizen enforcement cases for hearing without
    waiting for resolution of motions to dismiss.
    8.
    The incident alleged in the complaint also involved violation of rules promulgated
    by the Occupational Safety and Health Administration (OSHA), which violations
    are the subject of OSHA Complaint No. 204985014.
    9.
    On September 10 and 14, 2004, respondent made the following statements to
    OSHA in connection with OSHA Complaint No. 204985014:
    a.
    “We did not have ... a release of hydrogen sulfide gas at any time.”
    b.
    “We did have a break in one of the discharge pipes in the chrome plating
    department tank #8 which has a diluted sulfuric acid content...”
    c.
    “We do not have any chemicals that would produce hydrogen sulfide gas.”
    d.
    “Guardian West did not have ... a release of hydrogen sulfide gas on
    August5, 2004.
    e.
    “We did have a pipe break in our plating department, which contained a
    diluted sulfuric acid content,...”
    f.
    “We have not had any spills or releases.”
    10.
    The statements made to OSHA and quoted in the preceding paragraph are false,
    and respondent knew them to be false at the time they were made.
    II.
    The Occupational Safety and Health Act provides that: “Whoever knowingly
    makes any false statement, representation, or certification in any application,
    record, report, plan, or other document filed or required to be maintained
    pursuant to this chapter shall, upon conviction, be punished by a fine of not more
    than $10,000, or by imprisonment for not more than six months, or by both.” (29
    USC 666(g))
    12.
    The response to OSHA implies that respondent intends to deny the following
    allegations of the complaint in this case: Common allegations 14, 15, 22, 23, 24,
    25, 26 and 27.
    13.
    If denied by respondent, truth of these allegations will be relevant and material in
    this case.
    14.
    Complainant knows of the existence of certain documents which were produced
    in connection with the incident of August 5, 2004, which are relevant to the truth
    of common allegations 14, 15, 22, 23, 24, 25, 26 and 27, and of additional
    relevant documents which should have been routinely produced, which
    documents are in the possession of respondent. Complainant has copies of
    some, but not all of these documents.
    15.
    Complainant believes that, in light of the false statements made to OSHA,,
    respondent intends to alter or destroy the incriminating documents before they
    can be seized by OSHA or discovered in this case.
    16.
    Complainant does not wish to list the documents at this time, lest it give
    respondent a list of documents to destroy or alter.
    17.
    Complainant requests that the Board authorize the hearing officer to preside
    over an expedited initial round of discovery aimed at securing from respondent
    documents relevant to the truth of common allegations 14, 15, 22, 23, 24, 25, 26
    and 27, without complainant having to disclose the identity of the documents to
    respondent sufficiently far in advance to allow for the destruction or alteration of
    the documents.
    18.
    Complainant requests that the Board authorize the hearing officer to conduct an
    expedited hearing on discovery, at which complainant and respondent’s attorney
    will meet with the hearing officer to discuss the scope of discovery. The hearing
    officer would enter an order for the production of documents, which order would
    be given to respondent’s attorney. Complainant and respondent’s attorney would
    then proceed directly to the facility to obtain the documents, without affording the
    respondent an advance list of the documents.
    19.
    Complainant would reserve the right to conduct additional discovery after
    respondent files an answer in this case.
    WHEREFORE complainant prays:
    A.
    That the Board accept the complaint for hearing.
    B.
    That the Board authorize the hearing officer to preside over an expedited initial
    round of discovery aimed at securing from respondent documents relevant to the
    truth of common allegations 14, 15, 22, 23, 24,25,26 and 27 of the complaint,
    without complainant having to disclose the identity of the documents to
    respondent sufficiently far in advance to allow for the destruction or alteration of
    the documents.
    C.
    That the Board authorize the hearing officer to conduct an expedited hearing on
    discovery, at which complainant and respondent’s attorney will meet with the
    hearing officer to discuss the scope of discovery. The hearing officer would enter
    an order for the production of documents, which order would be given to
    respondent’s attorney. Complainant and respondent’s attorney would then
    proceed directly to the facility to obtain the documents, without affording the
    respondent an advance list of the documents.
    Morton F. Dorothy
    804 East Main
    Urbana IL 61802
    _________________________
    217/384-1010
    Morton F. Dorothy, Complainant

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