RECE WED
CLERK’S OFFICE
NOV 03 2004
BEFORE THE ILLINOIS
POLLUTION CONTROL BOAR~ATEOF ILLINOIS
Pollution Control Board
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB No.
05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Mr. Morton F. Dorothy
Clerk ofthe Board
804 East Main
Illinois Pollution Control Board
Urbana, Illinois 61802
100 West Randolph Street
(VIA FIRST CLASS MAIL)
Suite 11-500
Chicago, Illinois 60601
(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 each of RESPONSE
TO
COMPLAINANT’S MOTION TO ACCEPT FOR HEARING AND FOR
EXPEDITED
DISCOVERY and RESPONSE TO COMPLAINANT’S MOTION
TO
JOIN AGENCY AS PARTY IN INTEREST AND
TO EXTEND
TIME
TO
RESPOND TO MOTION TO DISMISS,
càpies ofwhich are herewith served upon
you.
Respectfully submitted,
FLEX-N-GATE CORPORATION,
Respondent,
Dated: November 1, 2004
By
Thomas G. Safley
HOD
GE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217)523-4900
THIS
FILING
SUBMITTED ON RECYCLED
PAPER
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certif~’that I have served the attached
RESPONSE TO COMPLAINANT’S MOTION TO ACCEPT FOR HEARING AND
FOR EXPEDITED DISCOVERY and RESPONSE TO COMPLMNANT’S MOTION
TO JOIN AGENCY AS PARTY iN INTEREST AND TO EXTEND TIME TO
RESPOND TO 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 EastMain
Urbana, Illinois 61802
by depositing said documents in the United States Mail in Springfield, Illinois, postage
prepaid, on November 1, 2004.
~Safiey
GWST:003/FiIINOF
and
COS
—
Response to Accept for Hearing
RECEIVED
CLERK’S OFFICE
NOV 03 2004
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILUNOIS
MORTON F.
DOROTHY,
Pollution Control Board
)
Complainant,
)
)
v.
)
PCB05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
RESPONSE TO COMPLAINANT’S MOTION
TO ACCEPT FOR HEARING AND FOR EXPEDITED DISCOVERY
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and for its Response to
Complainant’s Motion to Accept for Hearing and for Expedited Discovery
(“Complainant’s Motion”), states as follows:
I.
INTRODUCTION
1.
On September 8, 2004, Complainant filed a Complaint against Flex-N-
Gate with the Illinois Pollution Control Board (“Board”) and mailed that Complaint to
Flex-N-Gate. ~ Complaint, Proof of Service.
2.
On October 7, 2004, Flex-N-Gate filed its Motion to Dismiss
Complainant’s Complaint.
3.
The basis for Flex-N-Gate’s Motion to Dismiss is that “each Count of
Complainant’s Complaint fails to state a claim upon which relief can be granted.”
Motion to Dismiss at 2,
~J5.
4.
On October 13, 2004, Complainant mailed Complainant’s Motion to
counsel for Flex-N-Gate by U.S. Mail. $~Complainant’s Motion, Certificate of
Service.
5.
Flex-N-Gate timely files this Response to Complainant’s Motion.
II.
THE
BOARD
CANNOT ACCEPT
THIS MATTER
FOR
HEARING
BEFORE IT DECIDES FLEX-N-GATE’S MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM.
6.
Complainant first moves the Board to accept this matter for hearing before
ruling on Flex-N-Gate’s Motion to Dismiss. Complainant’s Motion at 1, 3.
7.
Section 3 1(d)(1) ofthe Illinois Environmental Protection Act, 415 ILCS
5/1,
et ~
(“Act”), provides in relevant part that: “unless the Board determines that
such complaint that is, a complaint filed by a party other than the State is duplicative or
frivolous, it shall schedule a hearing and serve written notice thereofupon the person or
persons named therein.”
415
ILCS
5/3
1(d)(1).
8.
“The Board must make a ‘frivolous and di~plicitous’determination in a
private citizen enforcement action in order to accept the case for hearing pursuant to
the Act and the Board’s regulations.” White Glove ofMorton Grove Ill. v. Amoco Oil
~
PCB No. 95-113, 1995 Ill. ENV LEXIS 737, at
*
1 (I11.Pol.Control.Bd. July 20,
1995) (citations omitted).
9.
“Duplicitous’ or ‘Duplicative’ means the matter is identical or
substantially similar to one brought before the Board or another forum.” 35 Ill. Admin.
Code § 101.202.
2
10.
“Frivolous’ means a request for relief that the Board does not have the
authority to grant, or a complaint that fails to state a cause ofaction upon which the
Board can grant relief” j~(emphasis added).
11.
As noted above, the basis ofFlex-N-Gate’s Motion to Dismiss is that
“each Count ofComplainant’s Complaint fails to state a claim upon which relief can be
granted.” Motion to Dismiss at 2, ¶5 (emphasis added).
12.
IfFlex-N-Gate is correct, the Complaint, by definition, is “frivolous,” and
the Board cannot accept it for hearing. ~ 35 Ill. Admin. Code § 101.202; 415 ILCS
5/31(d)(1);
White Glove ofMorton Grove Ill., 1995 Iii. ENVLEXIS 737, at *1.
13.
Complainant asserts that “the Board normally accepts non-citizen
enforcement cases for hearing without waiting for resolution of motions to dismiss.”
Complainant’s Motion at 1, ¶7.
14.
However, Complainant does not cite any precedent or other authority for
this assertion. $~Complainant’s Motion.
15.
Flex-N-Gate has examined numerous opinions ofthe Board in other
citizen enforcement cases in which the Board ruled on Motions to Dismiss, and Flex-N-
Gate has not located any decisions in which the Board “accepted
. . .
such cases for
hearing without waiting for resolution of motions to dismiss,” as Complainant asserts.
See id.
16.
This makes sense, because, as noted above, a complaint that fails to state a
cause ofaction is, by definition, frivolous, and must be dismissed, and thus, the Board
must decide a motion to dismiss to determine whether a complaint is frivolous before the
Board can accept the complaint for hearing.
3
17.
For the reasons stated above, the Board should deny Complainant’s
Motion to accept this case for hearing before the Board rules on Flex-N-Gate’s Motion to
Dismiss, and, instead, should rule on Flex-N-Gate’s Motion to Dismiss before
considering whether to accept this case for hearing.
HI.
THE BOARD SHOULD DENY COMPLAINANT’S MOTION FOR
EXPEDITED DISCOVERY.
18.
Complainant next moves the Board to allow certain expedited discovery in
this matter on the grounds that:
(a)
Fiex-N-Gate allegedly has lied to the Occupational Safety and
Health Administration (“OSHA”);
(b)
Flex-N-Gate made these alleged lies “knowingly”;
(c)
in light ofthese alleged lies, Complainant “believes” that Flex-N-
Gate “intends” to “alter or destroy” documents relevant to
Complainant’s claims; and,
(d)
Complainant needs extraordinary expedited discovery to obtain
copies ofthese documents before Flex-N-Gate destroys them.
~ Complainant’s Motion at 1-3.
19.
Specifically, Complainant makes the following allegations against Flex-N-
Gate:
(a)
“the incident alleged in the complaint also involved the violation
ofrules promulgated by OSHA”;
(b)
Flex-N-Gate made certain statements to OSHA regarding “the
incident”;
(c)
these statements “are false, and respondent knew them to be false
at the time they were made”;
(d)
“The Occupational Safety and Health Act provides that: ‘Whoever
knowingly makes any false statement to OSHA
.. .
shall, upon
4
conviction, be punished by a fine ofnot more than $10,000, or by
imprisonment for not more than six months, or by both”;
(e)
Flex-N-Gate’s “response to OSHA implies that respondent intends
to deny certain allegations of Complainant’s complaint in this
case”;
(f)
“Complainant knows ofthe existence ofcertain documents”
allegedly related to “the incident” “which are relevant to the truth”
ofthe allegations which Complainant assumes Flex-N-Gate
intends to deny;
(g)
“Complainant has copies of some, but not all ofthese documents”;
(h)
“Complainant believes that, in light ofthe 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”; and,
(i)
“Complainant does not wish to list the documents at this time, lest
it give respondent a list of documents to destroy or alter.”
Complainant’s Motion at 2-3, ¶~J8-12,14-16 (emphasis added).
20.
In light ofthese allegations, Complainant moves the Board to:
authorize the hearing officer to preside over an expedited initial round of
discovery aimed at securing from respondent certain documents.
without complainant having to disclose the identity ofthe documents to
respondent sufficiently far in advance to allow for the destruction or
alteration ofthe documents
and to 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 ofdiscovery, at which hearing t hearing officer would enter an
order forthe production of documents, which order would be given to
respondent’s attorney, afterwhich Complainant and respondent’s
attorney would then proceed directly to the facility to obtain the
documents, without affording the respondent an advance list ofthe
documents.
Complainant’s Motion at 3, ¶1J17-18.
5
21.
Complainant’s allegations are preposterous, prejudicial, and improper,
and, for the following reasons, the Board should strike these allegations and deny
Complainant’s Motion for Expedited Discovery.
A.
Flex-N-Gate has
Not
Made any
False
Statement to
OSHA
and would
Not Alter or Destroy Documents.
22.
First, for the record, Flex-N-Gate specifically denies that it has made false
statements to OSHA, as Complainant alleges. See Affidavit ofDenny Corbett, attached
hereto as Exhibit A,1 at ¶5.
23.
Flex-N-Gate further denies that it would, in any circumstance, alter or
destroy documents as Complainant alleges. Id at ¶6; Affidavit ofJim Dodson, a copy of
which is attached hereto as Exhibit B, at ¶15; original attached as Exhibit A to Flex-N-
Gate’s Response to Complainant’s Motion to Join Agency as Party in Interest and to
Extend Time to Respond to Motion to Dismiss, filed herewith.
B.
Complainant’s Allegations are Scandalous, Impertinent, and
Prejudicial, and the Board should Strike Them.
24.
Second, Complainant’s allegations that Flex-N-Gate knowingly made
false statements to OSHA, a crime, and that Flex-N-Gate will alter or destroy documents
in this case, are scandalous, impertinent, and prejudicial, and the Board should strike
them.
25.
Illinois Courts have held that it is improper for litigants in Illinois to make
accusations in their filings such as Complainant has made against Flex-N-Gate, and that
such allegations are “scandalous and impertinent” and should be stricken. $~Benitez, et
‘Flex-N-Gate has filed herewith afacsimile copy ofthis Affidavit, and the undersigned will substitute the
original copy ofthis Affidavit when
it
is received.
6
a! v. KFC National Mgmt. Co., 714 N.E.2d 1002, 1037 (2d Dist. 1999) (finding that
“plaintiffs’ allegations in their second amended complaint that employee-defendants sold
tainted food to customers and spied on female customers were ‘scandalous and
impertinent” and that it was proper to strike those allegations). Accord, Biggs v.
Cummins, 158 N.E.2d 58, 59 (Iii.
1959)
(striking the appellant’s brief as containing
“scandalous and impertinent material,” where the appellant accused a judge offalsifying
a court record, the Attorney General ofwithholding evidence, the Attorney General’s
assistant of “altering the record,” and an assistant Attorney General ofmaking “false and
untrue statements to the court.”)
26.
As discussed below, Complainant’s allegations that Flex-N-Gate made
false statements to OSHA, and did so knowingly, are conclusory and are not supported by
any facts.
27.
Further, Complainant’s “belief’ that Flex-N-Gate will alter or destroy
documents in this case is based solely on these conclusory, unsupported allegations, and
constitutes mere speculation that is insufficient to support a decision by the Board
granting Complainant’s Motion. ~ Affidavit in Support ofComplainant’s Motion, at
¶5.
28.
Complainant clearly makes these allegations to prejudice Flex-N-Gate
before the Board by trying to convince the Board that Flex-N-Gate is deceitful.
29.
The Board cannot allow such improper and prejudicial statements, which
allege intentional deceit and criminal activity by Flex-N-Gate, with no supporting facts
whatsoever, to stand.
7
30.
Therefore, as in Benitez and Biggs, the Board should strike paragraphs 10,
11,
15,
and 16 ofComplainant’s Motion, and paragraphs 3, 5, and 6 ofComplainant’s
Affidavit in Support of that Motion.
C.
Complainant’s
Conclusory Affidavit is Insufficient to Support
Complainant’s Request for Relief.
31.
Third, the central allegation of Complainant’s Motion
—
that statements
made by Flex-N-Gate to OSHA “are false, and respondent knew them to be false at the
time they were made”
—
is conclusory and not supported by fact, and therefore, the Board
must disregard it.
32.
In Motions filed with the Board, “facts asserted that are not ofrecord in
the proceeding must be supported by oath, affidavit, or certification in accordance with
Section 1-109 ofthe Code of Civil Procedure.” 35 Ill. Admin. Code § 101.504.
33.
Complainant does submit an affidavit in support ofhis Motion, but the
operative paragraph ofthat affidavit, paragraph 10, merely states the conclusion that
“statements” allegedly “made to OSHA
.. .
are false, and respondent knew them to be
false.” ~ Affidavit in Support ofComplainant’s Motion, ¶10.
34.
The Board has long held that it “can not grant relief.
. .
on the basis of a
mere conclusion” in an affidavit. EPA v. Rhodes, PCB No. 7
1-53,
1972 Ill. ENY LEXIS
169, at *1 (Il1.Pol.Control.Bd. Jan, 24, 1972).
35.
Indeed, in recent cases, the Board has stricken conclusory allegations from
affidavits filed with it. See. e.g., 2222 Elston LLC v. Purex Indus., Inc.. et al., PCB No.
03-55, 2003 Ill. ENV LEXIS 359, at **17..19 (Ill.Pol.Control.Bd. June 19, 2003) (striking
an affidavit that was “conclusory”); Heiser v. Office of the State Fire Marshal, PCB No.
8
94-377, 1995 Ill. ENVLEXIS 895, at *9 (Ill.Pol.Control.Bd. Sept. 21, 1995)(striking
from an affidavit a statement that was “self-serving and conclusory.”)
36.
Complainant does not present any facts to support his self-serving and
conclusory assertion that statements allegedly made by Flex-N-Gate to OSHA were
“false.” ~ Affidavit in support ofComplainant’s Motion.
37.
Complainant likewise does not present any facts to support his self-serving
and conclusory assertion that Flex-N-Gate “knew the alleged statements to be false at
the time they were made.” $~j~
38.
Thus, the Board should disregard Complainant’s conclusory assertions and
deny Complainant’s Motion that relies on them.
D.
Complainant Does Not Even Provide the Board Copies of the
Documents in which Flex-N-Gate Allegedly Made False Statements.
39.
Fourth, Complainant did not even provide the Board with copies ofthe
documents in which Flex-N-Gate allegedly made false statements to OSHA for the Board
to review and evaluate.
40.
Rather, Complainant merely asserted in his affidavit that Flex-N-Gate
made certain statements in documents submitted to OSHA, without attaching copies of
those documents. $~Affidavit in Support ofComplainant’s Motion, at ¶2.
41.
It is improper for Complainant to ask the Board to award the extraordinary
relief that Complainant requests based ondocuments that the Board has never seen.
9
E.
The Board should Consider the Background of Complainant’s
Relationship to Flex-N-Gate.
42.
Fifth, in order to make an informed decision regarding Complainant’s
Motion, the Board further should understand the background ofComplainant’s
relationship to Flex-N-Gate.
43.
Complainant is a former employee of Flex-N-Gate. Affidavit of Susan
Linville, attached hereto as Exhibit C,2 at ¶4.
44.
Before the Complaint in this matter was filed, Complainant asked Flex-N-
Gate to re-hire him, and Flex-N-Gate declined to do so. j~at ¶5.
F.
There
is No Need
for Discovery at this Time.
45.
.
Finally, there is no need for discovery in this matter at this time.
46.
As .set forth above, there is no basis to conclude that Flex-N-Gate intends
to destroy or alter documents, so Complainant’s Motion for discovery based on that
supposition is moot.
47.
Further, if the Board grants Flex-N-Gate’s Motion to Dismiss, no
discovery will be needed in the case.
48.
Thus, the Board should not require Flex-N-Gate to incur the costs ofthe
extraordinary discovery that Complainant requests.
G.
The Board Should Deny Complainant’s Motion.
49.
To summarize, Complainant asks the Board to find that:
(a)
Flex-N-Gate lied to a federal governmental agency, OSHA;
(b)
Flex-N-Gate did so knowingly;
2
Flex-N-Gate has filed herewith a facsimile copy of this Affidavit, and the undersigned will substitute the
original copy of this Affidavit when it is received,
10
(c)
Flex-N-Gate committed a crime;
(d)
Flex-N-Gate intends to “alter or destroy” documents in this case;
and,
(e)
therefore, Complainant should be allowed extraordinary discovery
measures, and Flex-N-Gate should bear the costs of those
measures, in order to allow Complainant to obtain copies ofthose
documents before they are altered or destroyed.
~ Complainant’s Motion.
50.
Complainant asks the Board to reach these conclusions:
(a)
based only on Complainant’s self-serving conclusions that
statements allegedly made by Flex-N-Gate to OSHA are “false”
and that Flex-N-Gate “knew them to be false,” and Complainant’s
speculation that Flex-N-Gate will destroy documents in this case;
(b)
with no facts to support these conclusions orthis speculation; and,
(c)
without providing the Board copies ofthe documents in which
Flex-N-Gate allegedly made false statements.
51.
.
And, Complainant is a disgruntled former employee ofFlex-N-Gate.
52.
Given these circumstances, Complainant’s Motion and Affidavit in
support thereofare patently insufficient to allow the Board to make the findings that
Complainant urges, and thus, do not support the relief Complainant requests.
53.
Section 101.616(g) of the Board’s procedural rules provides that “if any
person serves any request for discovery.
. .
for any improper purpose, such as to harass
or to cause unnecessary delay or increase in the cost oflitigation,
. . .
the Board.
. .
may
impose sanctions.” 35 Ill. Admin. Code § 101.616(g).
54.
Flex-N-Gate does not move the Board for sanctions, but does submit that,
given the discussion set forth above, Complainant has filed his Motion in order to harass
Flex-N-Gate and to increase the cost to Flex-N-Gate of this litigation.
11
55.
For the reasons stated above, the Board should deny Complainant’s
Motion for Expedited Discovery.
1Y.
CONCLUSION
WHEREFORE, Respondent FLEX-N-GATE CORPORATION respectfully
prays that the illinois Pollution Control Board deny Complainant’s Motion to Accept for
Hearing and forExpedited Discovery, and that the Board award Flex-N-Gate such other
relief as the Board deems just.
Respectfully submitted,
FLEX-N-GATE CORPORATION
Respondent,
By:_________
One o~9~y1~neys
Dated: November 1, 2004
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:OO3IFiIIResponse to Motion to Accept for Hearing
12
217 278 2616 P.81/02
OCT—29—2084 16:40
FLEX N GF~TE
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
MORTONF. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB
05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
AFFIDAVIT OF
DENNY
CORBETT
Denny Corbett, being first
duly sworn,
deposes and
states
under oath, and if sworn as a
witness, would testify, as follows:
1.
Ihave personal knowledge ofthe matters set forth in this affidavit.
2.
1
am employed as Urbana Safety Manager for Flex-N-Gate Corporation (“Flex-N-
Gate”).
3.
Ihave reviewed Complainant’s Motion to Accept for Hearing and for Expedited
Discovery in this matter, and make the following statements in response thereto.
4.
As Urbana Safety Manager
for
Flex-N-Gate, I have made or otherwise been
involved in communications with the federal Occupational Safety and Health Administration
(“OSHA”) with regard to the incident at issue in this matter.
Flex-N-Gate specifically denies that it has made false statements to OSHA, as
Complainant alleges in his Motion to Accept for Hearing and for Expedited Discovery.
6.
Flex-N-Gate takes Complainant’s lawsuit, and Flex-N~Gat&sobligation to
preserve documents related to Complainant’s allegations in that lawsuit, very seriously, and
OCT—29—2004 16:04
217 278 2616
FLEX N GATE
217 278 2616 F.02/02
OCT—29—2084 16:40
Flex-N-Gate denies that it would, in any circumstance, alter or destroy documents as
Complainant alleges in his Motion to Accept for Hearing and for Expedited Discovery.
Undez-
penalcies
as provided by 1a~’pursuant
to Section 1-1.09
of
the
Code of Civil
Procedure, the undersigned
certifies that the
statements
see
forth in this
instrument
are
true
and
correct,
except as to matters therein stated
to
be on
infcjrjnation
and
belief
and as
to
such
iziaecers
the under~igncd certifies
as
aforesaid thet he verily believes tha same to
be
true.
FURTHER AYFIANT SAYETH NOT.
Subscribed and sworn to before
methis~~gdayofQd~jkpJ’L__,2004.
j
Notary
Public
VI
2
TOTAL P.02
‘OFFICIA&. 8EM.’
CRATIEN~U.CLAPPER
NQ~aryPi~,$1~s~ ~oIs
MycommiMlon
sa~lrs
O?I171O~
OCT—29—2004 16:04
217 278 2616
F. 02
BEFORE
TBE
ILLINOIS POLLUTION CONTROL
BOARD
MORTON
F.
DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB
05-49
).
FLEX-N-GATE CORPORATION,
)
an illinois corporation,
)
)
Respondent.
)
AFFIDAVIT
OF JAMES R. DODSON
James R. Dodson, being first duly sworn, deposes and states under oath, and if sworn as a
witness, would testify, as follows:
1.
I have personal knowledge of the matters set forth in this affidavit.
2.
I am employed as Corporate Environmental Director forFlex-N-Gate Corporation
(“Flex-N-Gate”).
3.
I have reviewed Complainant’s Motion to Join Agency as Party in Interest and to
ExtendTime to Respond to Motion to Dismiss (“Motion to Join Agency”), and Complainant’s
Motion to Accept for Hearing and forExpedited Discovery, filed in this matter, and make the
following statements in response thereto.
4.
At the facility in question in this matter, Flex-N-Gate produces several different
wastestreams, some of which are “hazardous” under RCRA.
5.
However, Flex-N-Gate relies on exemptions from RCRA permitting requirements
with regard to each of its wastestreams that is “hazardous.”
6.
Specifically, Flex-N-Gate relies on different exemptions for different
wastestreams, as appropriate depending on the circumstances.
7.
For example, some wastestreams that Flex-N-Gate produces are treated by what
Flex-N-Gate considers to be a “wastewater treatment unit” under RCRA, and thus, Flex-N-Gate
considers this activity to be exempt from RCRA permitting requirements.
8~.
Other wastestreams that Flex-N-Gate produces are stored on-site for less than 90
days and then shipped off-site for disposal, and Flex-N-Gate considers this activity to be exempt
from RCRA permitting requirements under
35
fli. Admin. Code § 722.134(a).
9.
Thus, Flex-N-Gate does not now claim, nor has it ever claimed, “that the facility
operated” pursuant to just one exemption from RCRA permitting requirements (“Sections
703.123(a) and 722.143(a)” or otherwise), as Complainant alleges in paragraph one his Motion
to Join Agency.
10.
Likewise, Flex-N-Gate does not now claim, nor has it ever claimed, “that the
facility is exempt from the RCRA permit requirements based on the... ‘wastewatertreatment
unit’ exclusion,” as Complainant alleges in paragraph five ofhis Motion to Join Agency.
11.
Rather, Flex-N-Gate always has considered different wastestreams at the facility
at issue to be exempt from RCRA permitting requirements under different exemptions to those
requirements.
12.
With regard to the wastestream at issue in this case, Flex-N-Gate has never
claimed to the illinois Environmental Protection Agency (“illinois EPA”) or to anyone else that
its actions relating to such wastestream are exempt from RCRA permitting requirements
“pursuant to Sections 703.123(a) and 722.134(a).”
13.
Rather, Flex-N-Gate always has consideredits actions relating to this wastestream
to
be exempt from RCRA permitting requirements under the Wastewater Treatment Unit
Exemption, and has never claimed otherwise to the Illinois EPA.
2
14.
Further, it is Flex-N-Gate’s understanding that the Illinois EPA, if it has not
formally determined that Flex-N-Gate’s position on this issue is correct, at least understands this
to be Flex-N-Gate’s position.
15.
Flex-N-Gate takes Complainant’s lawsuit, and Flex-N-Gate’s obligation to
preserve documents related to Complainant’s allegations in that lawsuit, very seriously, and
Flex-N-Gate denies that it would, in any circumstance, alter or destroy documents as
Complainant alleges in his Motion to Accept for Hearing and forExpedited Discovery.
Underpenalties as provided by law pursuant to Section 1-109 of the Code of Civil
Procedure, the undersigned certifies that the statements set forth in this
instrument are true and correct, except as to matters therein stated to be on
information and beliefand as to such matters the undersigned certifies as
aforesaid that he verily believes the same to be true.
FURTHER AFFIANT SAYETH NOT.
James R. Dodson
Subscribed and sworn
to before
me this
26~
day of &TD1~EQ. ,2004.
(J
Notary Public
NOTARY
MYCOMMISSION EXP.
SE’r2~,~
3
Nov 01 2004 2: 13PM HP LASERJET FAX
P.2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCBO5-49
)
FLEX-N-GATE CORPORATION,
)
an illinois
corporation,
)
)
Respondent.
)
AFFIDAVIT
OF
SUSAN
LLNVILLE
SuMn Linvile, being first
duly
sworn, deposes and states under oath, and if sworn
as a witness,
would testify,
as follows:
1.
1 have
personal
knowledge ofthe
matters set forth in this affidavit,
2..
1
currently am employed as Corporate
Benefits Manager for Flex-N-Gate
Coiporation (“Flex-N-Gate”).
3.
I previously was
employed as Human
Resources Manager
for F’ex-N-
Gate.
4.
Morton F. Dorothy is a
former
employee ofFlex-N-Gate’s facility in
Urbana, Illinois.
P.02
NO~)—01—20O4 1~:24
96,
Nov 01 2004 2:13PM HP LASERJET FAX
p.3
5.
Before September 8, 2004, Mr. Dorothy asked Flex-N-Gate to rehire him,
and Flex-N-Gate declined to do so.
Under
penalties
as provided by law pursuant to Section 1-109
of
the Code of Civil Procedure,
the
undersigned certifies
that the statements set
forth
in this ins
trurnent
are
true
and correct, except as to matters
therein
stated to be on
information and belief and as to stzch
matters
the
undersigned certifies as aforesaid that
he
verily
believes
the
same to be true.
FURTHER AFFIANT
SAYETH
NOT.
Susan rnvi lie
Subscribed and sworn to before
me
this \
day of ~
,
2004.
r~i~
Notary Public
i1m~p.Oi~O7
GWST~3JFWAffidaiit
of
Susan Linville
2
NOU—01—2~24 13:24
P.03
BEFORE
THE ILLINOIS POLLUTION CONTROL
NOV~JI~03
lWNO~S
200k
MORTONF. DOROTHY,
))
poUUt~O~
COfltV0t
Board
Complainant,
)
)
v.
)
PCB05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
RESPONSE TO COMPLAINANT’S MOTION TO JOIN AGENCY AS PARTY IN
INTEREST AND TO EXTEND TiME TO RESPOND TO MOTION TO DISMISS
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and for its Response to
Complainant’s Motion to Join Agency as Party in Interest and to Extend Time to
Respond to Motion to Dismiss (“Motion to Join Agency”), states as follows:
I.
INTRODUCTION
1.
On September 8, 2004, Complainant filed a Complaint against Flex-N-
Gate with the Illinois Pollution Control Board (“Board”) and mailed that Complaint to
Flex-N-Gate. ~ Complaint, Proof of Service.
2.
On October 7, 2004, Flex-N-Gate filed its Motion to Dismiss
Complainant’s Complaint.
3.
The basis for Flex-N-Gate’s Motion to Dismiss is that “each Count of
Complainant’s Complaint fails to state a claim upon which relief can be granted.”
Motion to Dismiss at 2,
¶5.
4.
On October 13, 2004, Complainant mailed Complainant’s Motion to Join
Agency to counsel for Flex-N-Gate by U.S. Mail. $~Complainant’s Motion to Join
Agency, Certificate of Service.
5.
Flex-N-Gate timely files this Response to Complainant’s Motion to Join
Agency.
II.
THE BOARD SHOULD DENY COMPLAINANT’S MOTION TO JOIN
THE AGENCY AS A PARTY IN INTEREST.
6.
Complainant first moves the Board to join the Illinois Environmental
Protection Agency (“Illinois EPA”) in this matter “as a party in interest.
. .
pursuant to 35
Ill, Adm. Code 101.404.” Motion to Join Agency at 2, ¶10.
7.
Section 101.404 ofthe Board’s procedural rules provides that:
Pursuant to Section 30 ofthe Act, the Board may request that the Agency
investigate any alleged violation ofthe Act, the regulations, any permit
granted by the Agency, or any term or condition ofany such permit and
any such other investigations as the Board may deem advisable. Upon
such request, the Board may designate the Agency as a party in interest in
any ongoing proceeding in that matter. The designation ofthe Agency as a
party in interest does not require the Agency to take a position on the
merits ofthe proceeding.
35 Iii, Admin. Code § 101.404.
8.
Section 30 ofthe Illinois Environmental Protection Act provides that:
The Agency shall cause investigations to be made upon the request ofthe
Board or upon receipt of information concerning an alleged violation of
this Act, any rule or regulation adopted under this Act, any permit or term
or condition of a permit, or any Board order, and may cause to be made
such other investigations as it shall deem advisable.
415 ILCS 5/30.
2
9.
For the reasons set forth below, the Board should deny Complainant’s
Motion.
A.
Complainant’s Motion is Premised on a Fundamental
Misunderstanding of Flex-N-Gate’s Operations and Interaction with
Illinois EPA.
10.
The factual allegations and conclusions on which Complainant relies in
support ofhis Motion to Join Agency are as follows:
(a)
“prior to the incident alleged in the complaint, respondent claimed
that the facility operated pursuant to 35 Ill. Adm. Code 703.123(a)
and 722.134(a) as a large quantity generator ofhazardous waste”;
(b)
Flex-N-Gate “has claimed exemption pursuant to Sections
703.123(a) and 722.134(a) at least since March, 2001”;
(c)
in its Motion to Dismiss, Flex-N-Gate “claims that the facility is
exempt from the RCRA permit requirement based on the
‘elementary treatment unit” and ‘wastewatertreatment unit’
exclusions”;
(d)
by its Motion to Dismiss, Flex-N-Gate “appears to be repudiating
longstanding regulatory interpretations arrived at between the
Agency and the respondent”; and,
(e)
“The Agency needs to be notified ofthis.”
Motion to Join Agency at ¶~J1,2,
5,
and 6 (emphasis added).
11.
These statements reveal that Complainant fundamentally misunderstands
Flex-N-Gate’s operations and Flex-N-Gate’s interaction with Illinois EPA.
‘Flex-N-Gate did not argue in its Motion to Dismiss that the equipment at issue in this
matter
constitutes
an “elementary neutralization
unit”
~
Flex-N-Gate’s
Motion to Dismiss.
3
12.
At the facility in question, Flex-N-Gate produces several different
wastestreams, some ofwhich are “hazardous” under RCRA. Affidavit of Jim Dodson,
attached hereto as Exhibit A (“Dodson Aff.”), at ¶4.
13.
However, Flex-N-Gate relies on exemptions from RCRA permitting
requirements with regard to each ofits wastestreams that is “hazardous.”
Ici~.
at ¶5.
14.
Specifically, Flex-N-Gate relies on different exemptions for different
wastestreams, as appropriate depending on the circumstances. jçL at ¶6.
15.
For example, some wastestreams that Flex-N-Gate produces are treated by
what Flex-N-Gate considers to be a “wastewater treatment unit” under RCRA, and thus,
Flex-N-Gate considers this activity to be exempt from RCRA permitting requirements.
IcLatlJ7.
16.
Other wastestreams that Flex-N-Gate produces are stored on-site for less
than 90 days and then shipped off-site for disposal, and Flex-N-Gate considers this
activity to be exempt from RCRA permitting requirements under 35 Ill. Admin. Code §
722.134(a). Id. at ¶8,
17.
Thus, Flex-N-Gate does not now claim, nor has it ever claimed, “that ~
facility operated” pursuant to just one exemption from RCRA permitting requirements
(“Sections 703.123(a) and 722.143(a)” or otherwise), as Complainant alleges in
paragraph one of his Motion to Join Agency. jj at ¶9.
18.
Likewise, Flex-N-Gate does not now claim, nor has it ever claimed, “that
the facility is exempt from the RCRA permit requirements based on the.
. .
‘wastewater
4
treatment unit’ exclusion,” as Complainant alleges in paragraph five ofhis Motion to
Join Agency. ~ at ¶10.
19.
Rather, Flex-N-Gate always has considered different wastestreams at the
facility at issue to be exempt from RCRA permitting requirements under different
exemptions to those requirements. Jçj. at ¶11.
20.
With regard to the wastestream at issue in this case, Flex-N-Gate has
never claimed to the Illinois EPA orto anyone else that its actions relating to such
wastestream are exempt from RCRA permitting requirements “pursuant to Sections
703.123(a) and 722.134(a).” Id. at ¶12.
21.
Rather, Flex-N-Gate always has considered its actions relating to this
wastestream to be exempt from RCRA permitting requirements under the Wastewater
Treatment Unit Exemption, and has never claimed otherwise to the Illinois EPA. J~at
¶13.
22.
Further, it is Flex-N-Gate’s understanding that the Illinois EPA, if it has
not formally determined that Flex-N-Gate’s position on this issue is correct, at least
understands this to be Flex-N-Gate’s position. ~ at ¶14.
23.
Thus, the Illinois EPA need not be named a party in interest in order to be
made aware of Flex-N-Gate’s position regarding the regulatory status of the process at
issue here, as the Illinois EPA already is well aware ofFlex-N-Gate’s position. ~
discussion above.
5
B.
Complainant’s Motion to Join Agency Also is Premised on a
Fundamental Misunderstanding of RCRA.
24.
Complainant’s Motion to Join Agency also is premised on a
misunderstanding ofRCRA.
25.
Specifically, Complainant argues that Flex-N-Gate, in its Motion to
Dismiss, “claims that the facility is exempt from the RCRA permit requirements based on
the
, . .
‘wastewater treatment unit’ exclusion,” and that “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).” Motion to Join Agency at 1, ¶5.
26.
Again, Flex-N-Gate does not now claim, and has never claimed, that “the
H
facility” is exempt from RCRA permitting requirements under any one exemption from
those requirements. Dodson Aff. at ¶9.
27.
To the extent that Complainant means to argue that if one wastestream at
the facility is exempt from RCRA permitting requirements under the Wastewater
Treatment Unit exemption, Flex-N-Gate will be relieved ofcomplying with the
requirements of35 Ill. Admin. Code § 722.134(a) as to other wastestreams that otherwise
would be subject to those requirements, Flex-N-Gate disagrees.
28.
IfFlex-N-Gate’s activities with regard to other wastestreams are not
exempt under the Wastewater Treatment Unit exemption, Flex-N-Gate still must comply
with the requirements of Section 722.134(a) if it wishes to rely on that exemption as to
those other wastestreams. ~
35 Ill. Admin. Code § 722.134(a).
29.
That is, Flex-N-Gate is allowed to rely on different exemptions from
RCRA permitting requirements for different wastestreams at its facility, as appropriate
6
under the circumstances, and if the Board grants Flex-N-Gate’s Motion to Dismiss, that
decision would have no effect on the status ofother wastestreams that are not at issue in
this case.
C.
Complainant’s Motion Also is Premised on a Fundamental
Misunderstanding of the Board’s Procedures when Deciding a Motion
to Dismiss.
30.
Additionally, Complainant’s Motion to Join Agency is premised on a
misunderstanding ofthe Board’s procedures when deciding a motion to dismiss.
31.
When deciding a motion to dismiss, “the Board may consider only the
well-pleaded allegations ofthe complaint,” and cannot consider “facts that are not
alleged in the complaint.” Johnson v. ADM-Demeter, Hoopeston Division, PCB 98-3 1,
1998 Ill. ENV LEXIS 356, at ~‘5(Ill.Pol.Control.Bd. July 8, 1998).
32.
Complainant, however, argues that the Board should make the Illinois
EPA a party in interest in this case because “determining whether the facility is exempt
from RCRA permit requirements pursuant to the ‘elementary neutralization unit’ and
‘wastewatertreatment unit’ exclusions requires an overall assessment of all the units at
the facility, which would require inspections and input from the Agency.” Motion to Join
Agency at 2, ¶8 (emphasis added).
33.
An “overall assessment of all the units at the facility,” and “inspections
and input from the Agency” regarding such units, would be irrelevant to the legal
questions raised by Flex-N-Gate’s Motion to Dismiss, and would constitute facts outside
the Complaint which the Board could not consider when ruling on that Motion.
7
34.
To put it another way, the question before the Board when deciding Flex-
N-Gate’s Motion to Dismiss is whether, taking the Complainant’s allegations as true,
Complainant has alleged that the equipment at issue is a “wastewater treatment unit”
under RCRA. ~
Complainant’s Motion to Dismiss.
35.
Flex-N-Gate’s position is that Complainant has alleged that the equipment
at issue is a “wastewater treatment unit,” and therefore that Complainant’s Complaint
fails to state a cause of action, because the provisions ofRCRA that Complainant alleges
Flex-N-Gate violated do not apply to wastewater treatment units. ~
36.
Additionally, Complainant argues that “the Agency has an interest in the
proper application ofthe RCRA permit requirement to the facility, which interest may be
determined by the Board’s order in this case,” Motion to Join Agency at 2, ¶9.
37.
Again, however, an Order by the Board granting Flex-N-Gate’s Motion to
Dismiss merely would constitute a finding that Complainant has alleged that the
equipment at issue is a “wastewater treatment unit,” and, therefore, that Complainant’s
Complaint fails to state a cause ofaction.
38.
Such a finding regarding what Plaintiff alleged in his Complaint would
have no effect whatsoever on the Illinois EPA.
39.
Further, the Board does not need the Illinois EPA’s input to be able to
decide the questions of law raised by Flex-N-Gate’s Motion to Dismiss.
D.
Complainant’s Affidavit
is
Insufficient to Support Complainant’s
Motion to Join Agency.
40.
Flex-N-Gate further notes that Complainant has not provided the Board
with copies ofthe “correspondence” and “Agency records” that allegedly support
8
Complainant’s Motion to Join Agency. ~ Motion to Join Agency at 1, ¶2; Affidavit in
Support of Motion to Join Agency, ¶~J2~3.
41.
In Complainant’s Motion to Join Agency, and his Affidavit in Support
thereof Complainant concludes that in the alleged “correspondence,” Flex-N-Gate
claimed certain exemptions to RCRA permitting requirements, but Complainant does not
provide copies ofthe “correspondence” at issue or any other facts to support this
conclusion. See id.
42.
Likewise, in his Affidavit, Complainant concludes that “Agency records”
demonstrate that “respondent is repudiating longstanding regulatory interpretations
arrived at between the Agency and the respondent,” but, again, Complainant does not
provide copies ofthe “Agency records” at issue or any other facts to support this
conclusion. See id.
43.
For the reasons stated at pages 8 to 9 ofFlex-N-Gate’s Response to
Complainant’s Motion to Accept for Hearing and for Expedited Discovery, which is filed
herewith, Complainant’s statements in paragraphs 2 and 3 ofhis Affidavit in Support of
his Motion to Join Agency on these issues are conclusory, and the Board cannot rely on
these statements in ruling on Complainant’s Motion to Join Agency.
44.
Further, Flex-N-Gate submits that the Board should not take the
extraordinary step of naming the Illinois EPA as a Party in Interest in this matter based on
these alleged “correspondence” and “records,” documents that the Board has never seen.
9
E.
The Illinois EPA does not Need to be Made a Party in Interest so as to
“Be Notified” of this Matter, as Complainant Already Notified the
illinois EPA of this Matter.
45.
Finally, again, Complainant argues that the Board should name the Illinois
EPA as a Party in Interest in this matter because “the Agency needs to be notified” of
Flex-N-Gate’s “repudiation of longstanding regulatory interpretations arrived at
between the Agency and the respondent.” Motion to Join Agency at 1-2, ¶6.
46.
However, Complainant already served a copy ofhis Complaint and his
Motion to Join Agency, and Flex-N-Gate’s Motion to Dismiss, on the Illinois EPA. $~
Complainant’s Motion to Join Agency at 2, ¶12; Certificate of Service for Complainant’s
Motion to Join Agency.
47. . Thus, the Illinois EPA already has been “notified” ofthis matter and can
take whatever action it deems appropriate, if any, in response to that notification.
F.
The Board Should Deny Complainant’s Motion.
48.
Thus, for the following reasons, the Board should deny Complainant’s
Motion to Join Agency as an interested party in this matter.
49.
First, Flex-N-Gate is not changing its position with regard to why the
equipment at issue in this matter is exempt from RCRA permitting requirements.
50.
Second, the Illinois EPA already knows Flex-N-Gate’s position as to why
the equipment at issue in this matter is exempt from RCRA permitting requirements.
51.
Third, Flex-N-Gate’s management ofdifferent wastestreams can be
exempt from RCRA permitting requirements under different exemptions from those
requirements.
10
52.
Fourth, there is no need to make the Illinois EPA a Party in Interest to
provide the Board facts relating to Flex-N-Gate’s facility, as the Board could not consider
any such facts when deciding Flex-N-Gate’s Motion to Dismiss.
53.
Fifth, the Board does not need the Illinois EPA’s input to decide the
questions of law raised by Flex-N-Gate’s Motion to Dismiss.
54.
Sixth, paragraphs 2 and 3 of Complainant’s Affidavit in Support ofhis
Motion to Join Agency, which contain conclusions that Flex-N-Gate took a certain
position in correspondence to the Illinois EPA, and that Flex-N-Gate is changing that
position, are unsupported and conclusory, and the Board cannot rely on these paragraphs
on ruling on Complainant’s Motion to Join Agency.
55.
Seventh, the Board should not take the extraordinary step ofnaming the
Illinois EPA as a Party in Interest in this matter based on alleged statements in documents
that the Board has never seen.
56.
Eighth, Complainant already notified the Illinois EPA ofthis matter, so
there is no need for the Board to name the Illinois EPA as a Party in Interest in order to
notify the Illinois EPA ofthis matter.
57.
Accordingly, the Board should deny Complainant’s Motion to Join
Agency as a Party in Interest.
ifi.
THE
BOARD SHOULD DENY COMPLAINANT’S MOTION TO EXTEND
TIME
FOR THE ILLINOIS EPA TO RESPOND TO FLEX-N-GATE’S
MOTION TO DISMISS.
58.
Complainant next moves the Board to “request that the Agency respond to
the motion to dismiss.
. .
specifically addressing the question ofRCRA permit status,
11
which exemptions from the RCRA permit requirement apply, and listing the treatment,
storage and disposal units at the facility,” and to “extend the time for responding to the
motion to dismiss to allow the Agency reasonable time to respond.” Motion to Join
Agency
59.
at 2, ¶~B,
For
C.
the
2
reasons set
forth below, the Board also should deny this Motion.
60.
First, if the Board declines to name the Illinois EPA as a Party in Interest,
for the reasons stated above or otherwise, Complainant’s Motion to Extend Time is moot.
61.
Second, for the reasons stated above, the Board could not consider the
information that Complainant requests from the Illinois EPA when the Board decides
Flex-N-Gate’s Motion to Dismiss, because such information would constitute facts
outside the Complaint, so there is no reason to name the Illinois EPA as a Party in
Interest.
62.
Third, as noted above, Section 101.404 ofthe Board’s procedural rules
provides that “the designation ofthe Agency as a party in interest does not require the
Agency to take a position on the merits ofthe proceeding.” 35 Ill. Admin. Code §
101.404 (emphasis added).
63.
Complainant states that he “is not requesting that the Agency take a
position on the merits ofthe case.” Motion to Join Agency at 2, ¶11.
2
.
Complainantdoes not ask the Boardto requestthat the flhnois EPA respond to (1) Flex-N-Gate s
argument that Complainant’s allegations that arelease of gas constituted arelease of hazardous waste do
not state a cause of action because an uncontained gas, by definition, is not a “hazardous waste” regulated
by RCRA, or (2) Flex-N-Gate’s argument that the gas allegedly released at the facility did not constitute a
hazardous waste constituent. See Flex-N-Gate’s Motion to Dismiss Counts II through VI of Complainant’s
Complaint.
12
64.
However, by asking for an extension oftime for the Illinois EPA to
respond to Flex-N-Gate’s Motion to Dismiss, Complainant assumes that the Illinois EPA
would oppose Flex-N-Gate’s Motion, and therefore wish to respond to it.
65.
However, there is no reason to believe that the Illinois EPA would oppose
Flex-N-Gate’s Motion to Dismiss.
1V.
CONCLUSION
WHEREFORE, Respondent, FLEX-N-GATE CORPORATION respectfully
prays that the Illinois Pollution Control Board deny Complainant’s Motion to Join
Agency as Party in Interest and to Extend Time to Respond to Motion To Dismiss, and
that the Board award Flex-N-Gate such other relief as the Board deems just.
Respectfully submitted,
FLEX-N-GATE CORPORATION
Respondent,
By:
Dated: November 1, 2004
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
.GWST:003/FillResponse to Motion to JoinAgency
13
BEFORE TUE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
AFFIDAVIT OF .JAMES R. DODSON
James R. Dodson, being first duly sworn, deposes and states under oath, and if sworn as a
witness, would testify, as follows:
1.
I have personal knowledge of the matters set forth in this affidavit.
2.
I am employed as Corporate Environmental Director forFlex-N-Gate Corporation
(“Flex-N-Gate”).
3.
I have reviewed Complainant’s Motion to Join Agency as Party in Interest and to
Extend Time to Respond to Motion to Dismiss (“Motion to Join Agency”), and Complainant’s
Motion to Accept for Hearing and for Expedited Discovery, filed in this matter, and make the
following statements in response thereto.
4.
At the facility in question in this matter, Flex-N-Gate produces several different
wastestreams, some of which are “hazardous” under RCRA.
5.
However, Flex-N-Gate relies on exemptions from RCRA permitting requirements
with regard to each of its wastestreams that is “hazardous.”
6.
Specifically, Flex-N-Gate relies on different exemptions for different
wastestreams, as appropriate depending on the circumstances.
7.
For example, some wastestreams that Flex-N-Gate produces are treated by what
Flex-N-Gate considers to be a “wastewater treatment unit” under RCRA, and thus, Flex-N-Gate
considers this activity to be exempt from RCRA permitting requirements.
8.
Other wastestreams that Flex-N-Gate produces are stored on-site for less than 90
days and then shipped off-site for disposal, and Flex-N-Gate considers this activity to be exempt
from RCRA permitting requirements under 35 111. Admin. Code § 722.134(a).
9.
Thus, Flex-N-Gate does not now claim, nor has it ever claimed, “that the facility
operated” pursuant to just one exemption from RCRA permitting requirements (“Sections
703.123(a) and 722.143(a)” or otherwise), as Complainant alleges in paragraph one his Motion
to Join Agency.
10.
Likewise, Flex-N-Gate does not now claim, nor has it ever claimed, “that the
facility is exempt from the RCRA permit requirements based on the... ‘wastewater treatment
unit’ exclusion,” as Complainant alleges in paragraph five of his Motion to Join Agency.
11.
Rather, Flex-N-Gate always has considered different wastestreams at the facility
at issue to be exempt from RCRA permitting requirements under different exemptions to those
requirements.
12.
With regard to the wastestream at issue in this case, Flex-N-Gate has never
claimed to the Illinois Environmental Protection Agency (“Illinois EPA”) or to anyone else that
its actions relating to such wastestream are exempt from RCRA permitting requirements
“pursuant to Sections 703.123(a) and 722.134(a).”
13.
Rather, Flex-N-Gate always has considered its actions relating to this wastestream
to be exempt from RCRA permitting requirements under the Wastewater Treatment Unit
Exemption, and has never claimed otherwise to the Illinois EPA.
2
14.
Further, it is Flex-N-Gate’s understanding that the Illinois EPA, if it has not
formally determined that Flex-N-Gate’s position on this issue is correct, at least understands this
to be Flex-N-Gate’s position.
15.
Flex-N-Gate takes Complainant’s lawsuit, and Flex-N-Gate’s obligation to
preserve documents related to Complainant’s allegations in that lawsuit, very seriously, and
Flex-N-Gate denies that it would, in any circumstance, alter or destroy documents as
Complainant alleges in his Motion to Accept for Hearing and for Expedited Discovery.
Under penalties as provided by lawpursuant to Section 1-109 of the Code of Civil
Procedure, the undersigned certifies that the statements setforth in this
instrument are true and correct, except as to matters therein stated to be on
information and belief and as to such matters the undersigned cert~flesas
aforesaid that he verily believes the same to be true.
FURTHER AFFIANT SAYETH NOT.
James R. Dodson
Subscribed and sworn to before
me this
2~1~
day of O~T~1~E(~.,2004.
Notary Public
N
~CSTATEOFIND1AJ~
SSION
EXP. SE~~
3
