F~E C E V ED
    CLERK’S OFFICE
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    ~
    15 200k
    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.
    )
    SUPPLEMENT TO RESPONSE TO MOTION TO DISMISS AND MOTION FOR
    LEAVE TO WITHDRAW MOTION TO JOIN AGENCY AS PARTY IN INTEREST
    On October 20, 2004, complainant filed a response to the motion to dismiss filed
    in this case on October 12, 2004. Complainant requests leave to supplement his
    response with new information not known at the time of the original response, and to
    withdraW his motion to join the Agency as party in interest.
    1.
    On November 3, 2004, respondent filed a response to complainant’s motion to
    join Agency as party in interest and to extend time to respond to motion to
    dismiss.
    2.
    Paragraph 16 of the response states:
    a.
    “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).”
    3.
    The response also includes an affidavit of James R. Dodson, including the same
    statement as paragraph 8.
    4.
    The admission contained in paragraph 16 of the response and paragraph 8 of
    the affidavit disposes of most ofthe arguments made in the motion to dismiss.
    5.
    Most of the arguments in the motion to dismiss now admit of an easy response:
    Respondent condedes that it claims exemption under Section 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. Section 722.134(a)(4)
    requires compliance with Section 725.151 et seq., which provide that the
    owner or operator “must have a contingency plan for his facility”. The
    terms “facility” and “unit” are defined in Section 720.110. The “facility” is
    the entire geographical area which contains one or more “treatment,
    storage or disposal unit”. Respondent was therefore required to prepare
    and follow a contingency plan for the facility, as alleged in Counts II
    through VI of the complaint, regardless of any other exemptions it might
    claim. Furthermore, Section 722.134(b) requires a RCRA permit if the 90-
    day storage period is exceeded. Respondent is therefore required to have
    a RCRA permit as alleged in Count I of the complaint, unless it is able to
    demonstrate compliance with the conditions of Section 722.134(a).
    6.
    On October 14, 2004, complainant filed a motion to join Agency as party in
    interest.
    7.
    Now that respondent has conceded that it claims exemption pursuant to Section
    722.134(a), complainant sees no current need for the Agency to be joined as a
    party in interest, and therefore withdraws his motion to that effect.
    WHEREFORE complainant prays:
    A.
    That the Board allow complainant to supplement his response to motion to
    dismiss.
    B.
    That the Board deny the motion to dismiss.
    C.
    That the Board allow complainant to withdraw his motion to join Agency as party
    in interest.
    Morton F. Dorothy
    804 East Main
    1
    Urbana 1L61802
    1
    217/384-1010
    Morton F. Dorothy, Complainant
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    CHAMPAIGN COUNTY, ILLINOIS
    MORTON F. DOROTHY,
    Complainant,
    vs.
    FLEX-N-GATE CORPORATION,
    an Illinois Corporation,
    Respondent.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    No. PCB 05-049
    CERTIFICATE OF SERVICE
    I, the undersigned, certify that I have served the listed document, by first class
    mail, upon the listed persons, on the ~if~’dayof November, 2004.
    SUPPLEMENT TO RESPONSE TO MOTION TO DISMISS AND MOTION FOR
    LEAVE TO WITHDRAW MOTION TO JOIN AGENCY AS PARTY IN INTEREST
    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

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