ILLINOIS POLLUTION CONTROL BOARD
November 18, 2004
MORTON F. DOROTHY,
Complainant,
v.
FLEX-N-GATE CORPORATION, an Illinois
Corporation,
Respondent.
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PCB 05-49
(Citizens Enforcement – Air, Land)
ORDER OF THE BOARD (by N. J. Melas):
For the reasons below, today’s order denies complainant’s motion to accept this
complaint for hearing prior to ruling on respondent’s motion to dismiss. In addition, the Board
grants complainant leave to withdraw his motion to join the Illinois Environmental Protection
Agency (Agency) as a party in interest.
MOTION TO ACCEPT FOR HEARING
On September 9, 2004, Morton F. Dorothy filed a six-count citizen’s enforcement
complaint against Flex-N-Gate Corporation (Flex-N-Gate).
See
415 ILCS 5/31(d) (2002); 35 Ill.
Adm. Code 103.204. Mr. Dorothy alleges that Flex-N-Gate violated Section 21(f) of the
Environmental Protection Act (Act), and Sections 725.151(b), 725.156(j), 725.154(b),
725.154(c) of the Board’s Interim Status Standards For Owners And Operators Of Hazardous
Waste Treatment, Storage, And Disposal Facilities. The complaint concerns Flex-N-Gate’s
facility known as Guardian West, located at 601 Guardian Drive, Urbana, Champaign County
where it produces bumpers for vehicles.
All of Mr. Dorothy’s allegations concern an alleged spill of sulfuric acid at the facility on
August 5, 2004. Mr. Dorothy alleges that Flex-N-Gate violated these provisions by: (1)
operating the facility without a Resources Conservation and Recovery Act (RCRA) permit or
interim status; (2) failing to carry out a contingency plan; (3) failing to notify the Illinois
Environmental Protection Agency (Agency); (4) failing to amend the contingency plan after the
alleged spill; (5) failing to amend the contingency plan in response to changed circumstances;
and (6) failing to carry out the contingency plan as required by the plan.
On October 12, 2004, Flex-N-Gate filed a motion to dismiss for failure to state a claim on
which relief can be granted. On October 14, 2004, Mr. Dorothy filed several motions including a
motion to accept this matter for hearing. On November 3, 2004, Flex-N-Gate responded to Mr.
Dorothy’s pending motions.
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Mr. Dorothy moved the Board to accept this matter for hearing before ruling on the
respondent’s motion to dismiss, stating “[t]he Board normally accepts non-citizen enforcement
cases for hearing without waiting for resolution of motions to dismiss.” Mot. to Dismiss at 1.
Mr. Dorothy contends that Section 101.312(b) of the Board’s procedural rules allows the
respondent to file a “duplicitous or frivolous” motion with respect to a citizen’s complaint within
30 days following service. Mr. Dorothy claims Flex-N-Gate filed the motion to dismiss more
than 30 days following service and is, therefore, untimely. Accordingly, Mr. Dorothy moves the
Board to accept the complaint for hearing before ruling on the motion to dismiss.
Flex-N-Gate argues that the motion to dismiss as frivolous is timely and Mr. Dorothy’s
motion is premature. Flex-N-Gate states it was served with the complaint on September 8, 2004
and filed the motion to dismiss on October 7, 2004, which is within 30 days following service.
Flex-N-Gate asserts that its motion was timely filed for the purposes of Section 103.212(b).
In its October 12, 2004 motion, Flex-N-Gate moved the Board to dismiss Mr. Dorothy’s
complaint because all six counts of the complaint fail to state a claim on which relief can be
granted. Flex-N-Gate cites the Board’s definition of “frivolous” as including “a complaint that
fails to state a cause of action upon which the Board can grant relief.” Resp. at 3;
citing
35 Ill.
Adm. Code 101.202. Flex-N-Gate next cites Section 31(d)(1) of the Act, which provides that the
Board must schedule a hearing in a citizen’s enforcement action unless it determines the
complaint is duplicative or frivolous. Mot. at 2;
citing
415 ILCS 5/31(d)(1) (2002). Therefore,
argues Flex-N-Gate, pursuant to the Board regulations and Section 31(d)(1) of the Act, the Board
must rule on the motion to dismiss before it can accept the matter for hearing.
The Board finds, as Flex-N-Gate argues, that it cannot accept Mr. Dorothy’s complaint
for hearing before resolving the pending motion to dismiss. Both parties agree that respondent
was served with the complaint on September 8, 2004 and filed the motion to dismiss with the
Board on October 7, 2004. The Board finds the motion to dismiss was timely filed for the
purposes of Section 103.212. 35 Ill. Adm. Code 103.212. Further, the Board finds that Flex-N-
Gate’s motion to dismiss all counts of the complaint for failure to state a claim on which relief
can be granted is, by the Board’s definition, a motion to dismiss as frivolous. By statute, the
Board must first make a frivolous and duplicative determination in this action before it can
accept this case for hearing. 415 ILCS 5/31(d)(1) (2002); 35 Ill. Adm. Code 103.212(a).
Accordingly, Mr. Dorothy’s motion to accept for hearing prior to resolution of respondent’s
motion to dismiss is denied.
MOTION TO ADD AGENCY AS A PARTY IN INTEREST
In addition to the motion to accept for hearing, on October 14, 2004, Mr. Dorothy also
moved the Board to join the Agency as a party in interest pursuant to Section 101.404 of the
Board’s procedural rules. Mot. to Join at 2;
citing
35 Ill. Adm. Code 101.404. Mr. Dorothy
reasoned that the Agency has an interest in the permitting violations alleged in the complaint,
“which interest may be determined by the Board’s order in this case.” Mot. to Join at 2. Mr.
Dorothy stated he served the Agency with a copy of the motion, complaint, and motion to
dismiss. The Agency did not respond.
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On November 15, 2004, Mr. Dorothy moved the Board for leave to withdraw his motion
to add the Agency as a party in interest. Mr. Dorothy explains that because Flex-N-Gate claims
exemption pursuant to Section 722.134(a), in his opinion there is no further need to join the
Agency as a party in interest. The Board grants Mr. Dorothy leave to withdraw the motion to
join.
CONCLUSION
The Board denies Mr. Dorothy’s motion to accept for hearing and grants Mr. Dorothy
leave to withdraw his motion to join the Agency as a party in interest. The Board notes that on
October 14, 2004, Mr. Dorothy also moved the Board for expedited discovery in this proceeding.
The Board reserves ruling on the motion for expedited discovery until after deciding Flex-N-
Gate’s pending motion to dismiss the complaint as frivolous. The most recent filing in response
to the motion to dismiss was Mr. Dorothy’s November 15, 2004 motion to supplement his
response.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on November 18, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
