R~
it! CE
~V ED
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
RR~
OFFICE
MORTON F. DOROTHY,
Complainant,
V.
)
MA~
7
2005
STATE OF IWNOIS
)
Pollution
Control
Board
PCB No.
05-49
)
)
)
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
Respondent.
)
)
)
NOTICE OF HLING
TO:
Ms. Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago,Illinois
60601
(VIA
FIRST CLASS MAIL)
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021
North Grand Avenue East
Post Office Box
19274
Springfield, Illinois
62794-9274
(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 ofRESPONDENT
FLEX-N-GATE CORPORATION’S ANSWER
TO COMPLAINANT’S
COMPLAINT,
a copy ofwhich is herewith served upon you.
Respectfully submitted,
Dated:
March 4, 2005
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois
62705-5776
(217) 523-4900
FLEX-N-GATE CORPORATION,
Respondent,
By:
THIS FILING SUBMITTED
ON RECYCLED PAPER
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
RESPONDENT FLEX-N-GATE CORPORATION’S
ANSWER TO
COMPLAiNANT’S COMPLAiNT upon:
Ms. Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois
60601
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Pest Office Box
19274
Springfield,
Illinois
62794-9274
Mr. Morton F. Dorothy
804 East Main
Urbana, Illinois
61802
by depositing said documents in the United States Mail in Springfield, Illinois, postage
prepaid, on March 4, 2005.
GWST:003/Fil/NOF
and
COS
-
Answer
CLERK S OFFICE
BEFORE THE ILLiNOIS POLLUTION CONTROL
BOARD
~
2005
STATE OF
QLINOIS
MORTON F. DOROTHY,
)
POlI~t~on
Control Bo~ird
)
Complainant,
)
)
v.
)
PCB
05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
RESPONDENT FLEX-N-GATE
CORPORATION’S ANSWER TO COMPLAINANT’S COMPLAINT
NOW COMES Respondent FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by its attorneys HODGE DWYER ZEMAN, and for its
Answer to Complainant’s
Complaint, states as follows:
ALLEGATIONS
COMMON TO
ALL
COUNTS
1.
Paragraph
one
of Complainant’s Complaint states a legal conclusion that
does not call for a response.
To the extent that paragraph one makes any allegations of
fact, Flex-N-Gate denies the same.
2.
Flex-N-Gate has insufficient knowledge to
either admit or deny the
allegations ofparagraph two of Complainant’s Complaint, and therefore denies the same.
3.
Flex-N-Gate admits the allegations ofparagraphthree of Complainant’s
Complaint.
4.
Flex-N-Gate admits the allegations ofparagraph four of complainant’s
Complaint.
5.
Flex-N-Gate admits the allegations ofparagraph five ofComplainant’s
Complaint.
6.
Flex-N-Gate admits the allegation ofthe first sentence ofparagraph six of
Complainant’s Complaint that “tihe
tanks are mounted on concrete piers above a coated
concrete floor.”
Flex-N-Gate denies the allegations ofthe second sentence ofparagraph
six ofComplainant’s Complaint.
In particular, Flex-N-Gate denies that any “chemicals”
which “fall to the fidor” ofthe room in which the “chrome plating line” (identified in
paragraph four ofComplainant’s Complaint) is located are “spilled” and then “pumped to
a hazardous waste treatment unit.”
Rather, Flex-N-Gate affirmatively states that the
chromeplating line
is engineered so that substances will fall from the bumpers at issue
during the process ofcleaning, plating, and rinsing, and land on the floor ofthe room in
which that line
is located, which floor constitutes part
of a Wastewater Treatment
Unit as
defined in
35
Ill. Admin. Code
§
703.110, not a “hazardous waste treatment unit.”
This
process is intentional, and thus does not constitute “spillage.”
To
the extent that
paragraph six ofComplainant’s Complaint states any other allegations of fact, Flex-N-
Gate denies the same.
7.
Flex-N-Gate denies that any “spillage”
is located “on the
floor” as alleged
in paragraph seven ofComplainant’s Complaint.
See Answer to paragraph six above.
Further, paragraph seven ofComplainant’s Complaint states a legal conclusion that does
not call for a response.
To the extent that paragraph seven ofComplainant’s Complaint
makes any allegations of fact, Flex-N-Gate denies the same.
8.
Flex-N-Gate denies that any “spillage” is located “on the floor” as alleged
in paragraph eight ofComplainant’s Complaint.
~
Answer to paragraph six above..
Flex-N-Gate does not know what Complainant means by the term “complex mixture,”
2
and therefore has in~ufficient
knowledge to admit or deny this allegation, and therefore
denies the same.
Flex-N-Gate admits that “chromic acid, nickel sulfate from the nickel
plating tanks,
and
sulfuric acid,” as well as cleaners and large amounts ofwater, could,
at various
times, be present on the floor ofthe room in which the “chrome plating line” is
located.
Flex-N-Gate further admits that one “proprietary.
.
.
additive
used in one
Of
the nickel plating tanks to form a..
.
corrosion resistant nickel
layer” could, at various
times, be present on the floor ofthe room in which the “chrome plating line” is located;
Flex-N-Gate further admits that this proprietary additive contains approximately
.15
sulfur.
To
the extent that paragraph eight of Complainant’s Complaint makes any further
allegations of fact, Flex-N-Gate denies the same.
9.
Flex-N-Gate denies that any “spillage” is located “on the floor” as alleged
in paragraph nine ofComplainant’s Complaint.
~
Answer to
paragraph six above.
Further, Flex-N-Gate does not know what Complainant means by the terms
“contaminated debris and sludge beds.”
Accordingly, Flex-N-Gate has insufficient
knowledge to either admit or deny the allegations ofparagraph nine of Complainant’s
Complaint, and therefore
denies the same.
10.
Flex-N-Gate denies that “the facility includes a hazardous waste treatment
unit,” as alleged in paragraph ten ofComplainant’s Complaint, but Flex-N-Gate admits
that.”the facility” includes a Wastewater Treatment Unit as defined in 35
Ill. Admin.
Code
§
703.110.
Flex-N-Gate further denies that the Wastewater Treatment Unit
conducts “reduction ofhexavalent chromium with sodium metabisulfite,” but rather,
affirmatively states that it conducts reduction ofhexavalent chromium with magnesium
3
bisulfite.
Flex-N-Gate admits the remaining allegations ofparagraph ten of
Complainant’s Complaint.
11.
Flex-N-Gate admits the allegations ofparagraph 11
ofComplainant’s
Complaint.
12.
Flex-N-Gate denies the allegation contained in the first sentence of
paragraph 12 ofComplainant’s Complaint.
The remainder ofparagraph 12
states legal
conclusions that do not call for a response.
To
the extent that paragraph
12 states any
further allegations offact, Flex-N-Gate denies the same.
13.
Flex-N-Gate admits the allegations of paragraph 13 ofComplainant’s
Complaint.
14.
In response to paragraph 14 ofComplainant’s Complaint, Flex-N-Gate
states as follows.
The facility stores approximately 93
concentrated sulfuric acid in a
“bulk storage” tank.
Several pipes lead from this bulk storage tank to various other tanks
at the facility, including a pipe that leads to Tank No.
8, which is part ofthe “chrome
plating line” and contains a solution ofapproximately 10
sulfuric acid and 90
water.
Near Tank No.
8, this pipe approaches that tank traveling horizontally at a level lower
than the top ofthe tank (pipe segment 1), then travels vertically to a level
higher than the
top ofthe tank (pipe segment 2), then travels horizontallyto a position over the top ofthe
tank (pipe segment 3), then descends vertically into the top ofthe tank (pipe segment 4).
On August
5,
2004, this pipe separated
at a fitting that is located in the vertical portion of
the pipe that is outside the tank, i.e., in pipe segment 2.
This allowed a small quantity of
sulfuric acid that was in the portion ofpipe segment 2 above the location ofthis
fitting,
4
and potentially sulfuric acid contained in pipe segments 3 and 4, to
be released to the
floor ofthe room in which the chrome plating line was located.
In addition, back
siphoning could have occurred in this situation, which would have allowed some amount
ofthe approximately
10
sulfuric acid solution contained in Tank No. 8
to be released to
the floor as well.
Sulfuric acid is transferred from bulk storage to
Tank No.
8 by use ofa
pump that
is located at the bulk storage tank, which pump is
controlled by a button
located adjacent to Tank No. 8.
A valve is located in pipe segment 2, below the fitting
that separated, which valve must be opened to
allow material to be pumped from bulk
storage to Tank No.
8.
The pump was not operating at the time ofthe separation in the
pipe.
Thus, sulfuric acid was not pumped from bulk storage through the separation in the
pipe and onto
the floor.
To the extent that paragraph 14 ofComplainant’s Complaint
states any further factual allegations, Flex-N-Gate denies the same.
15.
Flex-N-Gate denies the allegations ofparagraph 15 ofComplainant’s
Complaint.
16.
Flex-N-Gate admits the allegation contained in the first sentence of
paragraph
16.
Flex-N-Gate states that the regulations quoted and cited in the second and
fourth sentences ofparagraph 16
speak for themselves,
and therefore, Flex-N-Gate makes
no response to these statements.
Flex-N-Gate has insufficient information to either admit
or deny the allegation contained in the third sentence ofparagraph
16, and therefore
denies the
same.
To the extent that paragraph 16 states any further allegations offact,
Flex-N-Gate denies the same.
5
17.
The regulation quoted in paragraph 17 of Complainant’s Complaint speaks
foritself,
and therefore Flex-N-Gate makes no response to this allegation.
To the extent
that paragraph
17 states any allegations of fact, Flex-N-Gate denies the same.
18.
Paragraph 18 ofComplainant’s Complaint states a conclusion oflaw
which does not call for a response.
To the extent that paragraph 18 states any allegations
offact, Flex-N-Gate denies the
same.
19.
Paragraph 19 ofComplainant’s Complaint states a conclusion oflaw
which does not call for a response.
To the extent that paragraph 19 states any allegations
offact, Flex-N-Gate denies the same.
20.
Flex-N-Gate admits the allegations ofparagraph 20 of Complainant’s
Complaint.
21.
Flex-N-Gate admits the allegations ofparagraph 21
ofComplainant’s
Complaint as they relate to solution attendants and lab technicians at the facility.
Flex-N-
Gate does not know what Complainant means by the term “line worker,” as the facility
has no such position.
Accordingly, Flex-N-Gate has insufficient information to either
admit or deny the allegations ofparagraph 21 ofComplainant’s Complaint as they relate
to “line workers,” and therefore denies the same.
Flex-N-Gate denies any further factual
allegations ofparagraph 21.
22.
Flex-N-Gate denies that “the hazwoper-trained line workers”
“determined
that a hydrogen
sulfide release was occurring,” as alleged in paragraph 22
,ofComplainant’s Complaint.
Flex-N-Gate does not know what Complainant means by
his allegation that “after
discovering the acid spill.
.
.
the hazwoper-trained line
6
workers began an immediate response,” and therefore has insufficient informationto
either admit or deny this allegation, and denies the same.
Flex-N-Gate admits that
“after
discovering the acid spill” an employee at the facility “paged safety.”
To the
extent that paragraph 22 ofComplainant’s Complaint makes any further factual
allegations, Flex-N-Gate denies the same.
23.
In response to paragraph 23 ofComplainant’s Complaint, Flex-N-Gate
states that it does not know what Complainant means by the term “line workers,” and
therefore has insufficient information to admit or deny the allegations ofparagraph 23 to
the extent theyrelate to “line workers,” and denies the same.
Flex-N-Gate admits that
when the facility safety officer on duty at the time ofthe separation ofthe pipe leading to
Tank No.
8 arrived at the location ofthat tank after beingpaged, Complainant explained
to that safety officer that the pipe had
separated, expressed Complainant’s opinionthat
the release ofsulfuric acid had created hydrogen sulfide gas, and “requested that the
safety officer
get a hydrogen sulfide probe.”
Flex-N-Gate has insufficient knowledge as
to why Complainant made this request, whether “to determine whether the levels
presumably of the alleged hydrogen sulfide
were safe” or otherwise, and can neither
admit nor deny that Complainant made this request “to determine whetherthe levels were
safe,” and therefore denies this allegation.
To
the extent that paragraph twenty-three of
Complainant’s Complaint states any further allegations of fact, Flex-N-Gate denies thefl
same.
.
24.
In response to paragraph 24 ofComplainant’s Complaint, Flex-N-Gate
states that it does not know what Complainant means by the term “line workers,” and
7
therefore has insufficient information to admit or deny the allegations ofparagraph 24 to
the extent they relate to “line workers,” and therefore denies the
same.
Flex-N-Gate
further denies that the facility safety officer on duty at the time of the separation ofthe
pipe “responded that he did not know what a hydrogen sulfide probe was,” but admits
that the facility safety officer did at that time state to Complainant that he “did not know
whether such
a probe
was present at the facility.”
To the extent that paragraph 24 states
any other allegations offact, Flex-N-Gate denies the same.
25.
In response to paragraph 25
of Complainant’s Complaint, Flex-N-Gate
states that it does not know what Complainant means by the term “line workers,” and
therefore has insufficient information to admit or deny the allegations ofparagraph 25 to
the extent they relate to “line workers,” and therefore denies the same.
Flex-N-Gate
admits that Respondent “told the
facility safety officer on duty at the time ofthe
separation ofthe pipe
that hydrogen sulfide was a toxic gas, that the Urbana Fire
Department had a hydrogen sulfide probe,
and that safety” should consider evacuating
the facility.
Flex-N-Gate further admits that the safety officer contacted the plating
department manager regarding the issue and also told
all employees
in the room ofthe
facility in which the chrome plating line
is located to
leave the room.
Flex-N-Gate
further states that the safety officer on duty at the time ofthe separation ofthe pipe has no
recollection ofthe discussion that Complainant alleges regarding fans, and therefore,
Flex-N-Gate has insufficient information to admit or deny Complainant’s allegations
regarding such discussion, and denies the
same.
Flex-N-Gate further has insufficient
information regarding whether “safety
then departed and was not seen again by the first
8
responders for the remainder ofthe immediate response,” because (a)
Flex-N-Gate does
not know what Complainant means by the term “first responders,” (b) Flex-N-Gate has
no knowledge as to what the “first responders,” Complainant, or any otherperson
allegedly saw or did not see, and (c)
Flex-N-Gate does not know what Complainant
means by the term “remainder ofthe immediate response.”
Therefore, Flex-N-Gate
denies the allegations of the last sentence ofparagraph twenty-five ofComplainant’s
Complaint.
To the extent that paragraph twenty-five of Complainant’s Complaint states
any other allegations of fact, Flex-N-Gate denies the same.
26.
In response to paragraph 26 ofComplainant’s Complaint, Flex-N-Gate
admits that employees “directed water hoses” onto the floor of the room in which the
“chrome plating line” is
contained.
Flex-N-Gate further admits that after doing so, those
employees left that room.
Flex-N-Gate further admits that the water “dilutedthe acid”
and any other substance on the floor ofthe room.
Flex-N-Gate denies that the water
“washed” any material “to the hazardous waste treatment unit”; as noted above, the floor
of the room constitutes part ofa WastewaterTreatment Unit as defined in 35
Ill. Adniin.
Code
§
703.110.
Flex-N-Gate does admit that the water would have washed any material
on the floor further into pipes and tanks that. also make up the Wastewater Treatment
Unit.
To the extent that paragraph 26 states any further allegations of fact, Flex-N-Gate
denies the same.
27.
In response to paragraph 27 ofComplainant’s Complaint, Flex-N-Gate
states that it does not know what Complainant means by the terms “line worker” or
“release.”
Flex-N-Gate does admit that after the separation ofthe pipe and leak of
9
sulfuric acid onto the floor,
at least one employee reported to the facility safety officer
that he felt ill.
To
the extent that paragraph 27 ofComplainant’s Complaint states any
further allegations offact, Flex-N-Gate denies the same.
COUNT I
OPERATION WITHOUT A RCRA PERMIT OR INTERIM STATUS
Flex-N-Gate reincorporates and realleges its responses to Complainant’s
Allegations Common to
All Counts in response to Count I ofComplainant’s Complaint
1.
Flex-N-Gate denies the allegations ofparagraph one ofCount I of
Complainant’s Complaint.
2.
Flex-N-Gate denies the allegations ofparagraph two of Count I of
Complainant’s Complaint.
3.
The statutory section cited in paragraph three ofCount I ofComplainant’s
Complaint speaks for itself, and therefore Flex-N-Gate makes no response to this
allegation.
To the extent that paragraph three ofCount I ofComplainant’s Complaint
states any allegations offact, Flex-N-Gate denies the same.
4.
The regulations cited in paragraph four ofCount I ofComplainant’s
Complaint speak for themselves, and therefore Flex-N-Gate makes no response to this
allegation.
To the extent that paragraph four ofCount I ofComplainant’s Complaint
states any
allegations offact, Flex-N-Gate denies the same.
WHEREFORE, Respondent, FLEX-N-GATE COR~PORATION,prays that the
Illinois Pollution Control Board find against Complainant on Count I ofhis Complaint,
10
that Complainant take nothing by way ofCount I his Complaint, and that the Illinois
Pollution Control Board grant Flex-N-Gate all reliefjust and proper in the premises.
COUNT II
FAILURE TO CARRY OUT
CONTINGENCY PLAN AS REQUIRED BY SECTION 725.151
Flex-N-Gate reincorporates and realleges its responses to Complainant’s
Allegations Common to
All Counts in response to Count II ofComplainant’s Complaint.
1.
The regulation cited in paragraph one ofCount II ofComplainant’s
Complaint speaks for itself, and therefore Flex-N-Gate makes no response to this
allegation.
To the extent that paragraph one of Count II ofComplainant’s Complaint
states any allegations offact, Flex-N-Gate denies the same.
2.
Flex-N-Gate denies that any “hydrogen sulfide emission” occurred at the
facility as alleged in paragraph two ofCount II ofComplainant’s Complaint, and further
denies all other allegations ofparagraph two ofCount II ofComplainant’s Complaint.
3.
In response to paragraph three ofCount II of Complainant’s Complaint,
Flex-N-Gate states that it does not know what Complainant means by the term “incident.”
IfComplainant means an alleged “hydrogen sulfide emission,” Flex-N-Gate denies that
any such emission occurred at the facility.
If Complainant means ~herelease ofsulfuric
acid, Flex-N-Gate denies that it had any obligation to “carry out the contingency plan in
•
response to this” release, as Complainant alleges.
Flex-N-Gate further denies that it in
any way acted inappropriately, or failed to
act as necessary, “in response to
this” release.
To the extent that paragraph three ofCount II of Complainant’s Complaint states any
further allegations offact, Flex-N-Gate denies the same.
11
4.
In response to paragraph four of Count II ofComplainant’s Complaint,
Flex-N-Gate denies that it had any obligation to take any ofthe actions identifiedby
Complainant,
and, therefore, denies that it “failed to” take such actions.
To the extent
that paragraph fourof Count II ofComplainant’s Complaint states any further allegations
of fact, Flex-N-Gate denies the
same.
5.
Flex-N-Gate denies the allegations ofparagraph five ofCount II of
Complainant’s Complaint.
6.
The statutory section cited in paragraph six ofCount II ofComplainant’s
Complaint speaks for itself,
and therefore Flex-N-Gate makes no response to
this
allegation.
To the extent that paragraph six ofCount II ofComplainant’s Complaint
states any allegations offact, Flex-N-Gate denies the same.
WHEREFORE, Respondent, FLEX-N-GATE CORPORATION, prays that the
Illinois Pollution Control Board find against Complainant on Count II ofhis Complaint,
that Complainant take nothing by way ofCount II his Complaint, and that the Illinois
Pollution Control Board grant Flex-N-Gate all reliefjust and proper in the premises.
COUNT III
FAILURE TO NOTIFY ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY
Flex-N-Gate reincorporates and realleges its responses to
Complainant’s
Allegations Common to All Counts
in response to
Count III ofComplainant’s Complaint.
1.
The regulation cited in paragraph one ofCount III ofComplainant’s
Complaint speaks foritself,
and therefore Flex-N-Gate makes no response to this
12
allegation.
To the extent that paragraph one ofCount III ofComplainant’s Complaint
states any allegations offact, Flex-N-Gate denies the same.
2.
In response to paragraph two ofCount III of Complainant’s Complaint,
Flex-N-Gate denies that it had any obligation to take the action identified by
Complainant, and, therefore, denies that it “failed to” take such action.
To the extent that
paragraph two ofCount III ofComplainant’s Complaint states any further allegations of
fact, Flex-N-Gate denies the same.
3.
Flex-N-Gate denies the allegations ofparagraph three ofCount III of
Complainant’s Complaint.
4.
The statutory section cited in paragraph four of Count ifi of,
Complainant’s Complaint speaks for itself, and therefore Flex-N-Gate makes
no response
to this allegation.
To the extent that paragraph four ofCount III ofComplainant’s
Complaint states any allegations offact, Flex-N-Gate denies the same.
WHEREFORE, Respondent, FLEX-N-GATE CORPORATION, prays that the
Illinois Pollution Control Board find against Complainant
on Count III ofhis
Complaint,
that Complainant take nothing by way ofCount III his Complaint, and that the Illinois
Pollution Control Board grantFlex-N-Gate all reliefjust
and proper in the premises.
COUNT
IV
•
FAILURE TO AMEND THE
CONTINGENCY
PLAN FOLLOWING FAILURE OF THE PLAN
Flex-N-Gatereincorporates and realleges it.s responses to
Complainant’s
Allegations Common to
All Counts in response to Count IV ofComplainant’s Complaint.
13
1.
The regulation cited in paragraph one ofCount IV ofComplainant’s
Complaint speaks foritself,
and therefore Flex-N-Gate makes no response to this
allegation.
To the extent that paragraph one ofCount IV ofComplainant’s Complaint
states any allegations of fact, Flex-N-Gate denies the
same.
2.
In response to paragraph two ofCount IV of Complainant’s Complaint,
Flex-N-Gate denies that any “hydrogen sulfide release” occurred at the facility.
Flex-N-
Gate further denies that “the
contingency plan failed,” and Flex-N-Gate denies that the
contingency plan was triggered by the “incident” at issue.
To the extent that paragraph
two ofCount IV of Complainant’s Complaint states any further allegations offact, Flex-
N-Gate denies the same.
3.
In response to paragraph three ofCount IV ofComplainant’s Complaint,
Flex-N-Gate denies that any “hydrogen sulfide release” occurred at the facility.
Flex-N-
Gate further denies that it had any obligation to “amend the contingency plan,” and
therefore
denies that it “failed” to do so.
To the extent that paragraph three of Count IV
ofComplainant’s Complaint states any further allegations offact, Flex-N-Gate denies the
same.
4.
Flex-N-Gate denies the allegations ofparagraph four ofCount IV of
Complainant’s Complaint.
5.
The statutory section cited in paragraph five ofCount IV ofComplainant’s
Complaint speaks for itself, and therefore Flex-N-Gate makes no response to this
allegation.
To the extent that paragraph five ofCount IV ofComplainant’s Complaint
states any allegations offact, Flex-N-Gate denies the same.
14
WHEREFORE,
Respondent, FLEX-N-GATE CORPORATION, prays that the
Illinois Pollution Control Board find
against Complainant on Count IV ofhis Complaint,
that Complainant take nothing by way ofCount IV his Complaint, and that the Illinois
Pollution
Control Board grant Flex-N-Gate all reliefjust and proper in the premises.
COUNT V
FAILURE TO AMEND
THE CONTINGENCY
PLAN IN RESPONSE TO CHANGED CIRCUMSTANCES
Flex-N-Gate reincorporates and realleges its responses
to Complainant’s
Allegations Common to All Counts
in response to Count V ofComplainant’s Complaint.
1.
The regulation cited in paragraph one ofCount V ofComplainant’s
Complaint speaks for itself,
and therefore Flex-N-Gate makes no response to
this
allegation.
To
the extent that paragraph one ofCount V ofComplainant’s Complaint
states any allegations offact, Flex-N-Gate denies the same.
2.
Flex-N-Gate admits the allegations ofparagraph two ofCount V of
Complainant’s Complaint, but denies that “the
plan” was required to “specifically
address the possibility ofan acid spill resulting in a hydrogen sulfide release.”
3.
In response to paragraph three ofCount V ofComplainant’s Complaint,
Flex-N-Gate denies that a “hydrogen sulfide emission incident” occurred at the facility.
Flex-N-Gate further denies that hydrogen sulfide constitutes
“hazardous waste” or a
“hazardous waste constituent.”
Flex-N-Gate further denies any “possibility that an acid
spill could result in a release ofhydrogen
sulfide.”
Flex-N-Gate further denies any other
factual allegations ofparagraph three ofCount V of Complainant’s Complaint.
15
4.
Flex-N-Gate denies the allegations ofparagraph four ofCount V of
Complainant’s Complaint.
5.
Flex-N-Gate admits the allegations ofparagraph five, but denies that it had
any obligation to, or that any need exists to, “amend
the contingency plan.”
6.
Flex-N-Gate denies the allegations ofparagraph six ofCount V of
Complainant’s Complaint.
7.
The statutory section cited in paragraph seven ofCount V of
Complainant’s Complaint speaks foritself, and therefore Flex-N-Gate makes no response
to this allegation.
To the extent that paragraph seven ofCount V ofComplainant’s
Complaint states any allegations of fact, Flex-N-Gate denies the
same.
WHEREFORE, Respondent, FLEX-N-GATE CORPORATION, prays that the
Illinois Pollution Control Board find against Complainant on Count V of his Complaint,
that Complainant take nothing by way ofCount V his Complaint, and that the Illinois
Pollution Control Board grant Flex-N-Gate all reliefjust and proper in the premises.
COUNT VI
FAILURE
TO CARRY OUT
CONTINGENCY PLAN AS REQUIRED BY THE PLAN
Flex-N-Gate reincorporates and realleges its responses to
Complainant’s
Allegations Common to All Counts in response to Count VI ofComplainant’s Complaint.
1.
Flex-N-Gate has insufficient information to admit or deny the allegations
contained in paragraph one ofCount VI ofComplainant’s Complaint, and therefore
denies the same.
•
16.
2.
Flex-N-Gate’s “Emergency Response and Contingency Plan” speaks for
itself, and therefore Flex-N-Gate makes no response to this allegation.
To the extent that
paragraph two ofCount VI ofComplainant’s Complaint states any allegations of fact,
Flex-N-Gate denies the
same.
3.
Flex-N-Gate’s “EmergencyResponse and Contingency Plan” speaks for
itself, and therefore Flex-N-Gate makes no response to this allegation.
To the extent that
paragraph three ofCount VI of Complainant’s Complaint states any allegations offact,
Flex-N-Gate denies the same.
4.
Tn response to paragraph four ofCount VI ofComplainant’s Complaint,
Flex-N-Gate states that it does not know what Complainant means by the phrase “trained
department associates recognized the emergency, and began spill response,” and
therefore has insufficient information to
admit or deny such allegation, and therefore
denies the same.
To the extent that paragraph four of Count VI ofComplainant’s
Complaint states any further factual allegations, Flex-N-Gate denies the same.
5.
In response to paragraph five ofCount VI ofComplainant’s Complaint,
Flex-N-Gate states that it does not know what Complainant means by the phrase “trained
department associates recognized the emergency,” and therefore has insufficient
information to
admit or deny such allegation, and therefore denies the same.
The
remainder ofparagraph five ofCount VI states a legal conclusion that does not call for a
response.
To the extent that paragraph five ofCount VI states any further factual
allegations, Flex-N-Gate denies the same.
•
17
• 6.
Flex-N-Gate denies the allegations ofparagraph six ofCount VI of
Complainant’s Complaint, and further denies that its “Emergency Response and
Contingency Plan” required it to make any such determination under the circumstances at
issue in this matter.
7.
Flex-N-Gate’s “Emergency Response and Contingency Plan” speaks for
itself, and therefore Flex-N-Gate makes no response to this allegation.
To the extent that’
paragraph seven of Count VI of Complainant’s Complaint states any allegations offact,
Flex-N-Gate denies the same.
8.
Flex-N-Gate denies the allegations ofparagraph eight ofCount VI of
Complainant’s Complaint.
•
9.
Flex-N-Gate denies the allegations ofparagraph nine ofCount VI of
Complainant’s Complaint.
10.
Flex-N-Gate denies the allegations ofparagraph ten of Count VI of
Complainant’s Complaint.
11.
Flex-N-Gate denies the allegations ofparagraph 11 ofCount VI of
Complainant’s Complaint.
12.
Flex-N-Gate’s “Emergency Response and Contingency Plan” speaks for
itself, and therefore Flex-N-Gate makes no response to this allegation.
To the extent that
paragraph
12 ofCount VI ofComplainant’s Complaint states any allegations offact,
Flex-N-Gate denies the same.
13.
Flex-N-Gate’s “EmergencyResponse and Contingency Plan” speaks for
itself, and therefore Flex-N-Gate makes no response to this allegation.
To the extent that
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paragraph 13 ofCount VI ofComplainant’s Complaint states any allegations of fact,
Flex-N-Gate denies the same.
14.
In response to paragraph
14 ofComplainant’s Complaint, Flex-N-Gate
denies that its “Emergency Response and Contingency Plan” required it to “report the
sulfuric acid spill.”
To the extent that paragraph 14 ofComplainant’s Complaint makes
any further factual allegations, Flex-N-Gate denies the same.
15.
Flex-N-Gate’s “Emergency Response and
Contingency Plan” speaks for
itself, and therefore Flex-N-Gate makes no response to this allegation.
To
the extent that
paragraph
15 ofCount VI ofComplainant’s Complaintstates any allegations of fact,
Flex-N-Gate denies the
same.
16.
Flex-N-Gate admits the allegations contained in the first sentence of
paragraph
16 ofCount VI ofComplainant’s Complaint.
Flex-N-Gate denies the
allegations contained in the second sentence ofparagraph 16 of Count VI of
Complainant’s Complaint.
17.
Flex-N-Gate admits the allegations ofparagraph 17 of Count VI of
Complainant’s Complaint.
18.
Flex-N-Gate denies the allegations ofparagraph 18 of Count VI of
Complainant’s Complaint.
19.
Ifby the phrase “this
spill” Complainant refers to
the release ofsulfuric
acid, Flex-N-Gate admits the allegations ofparagraph 19 ofCount VI ofComplainant’s
Complaint, but denies‘that this release triggered Flex-N-Gate’s “Emergency Response
and Contingency Plan” and denies that it was required to
“carry out the plan in response
19
to this spill.”
Ifby the phrase “this spill” Complainant refers to
something other than the
release ofsulfuric acid, Flex-N-Gate has insufficient knowledge to admit or deny the
allegations ofparagraph
19 of Count VI ofComplainant’s Complaint, and therefore
denies the same.
To the extent that paragraph 19 of Count VI ofComplainant’s
Complaint makes any further factual allegations, Flex-N-Gate denies the same.
20.
Flex-N-Gate denies the allegations ofparagraph 20 of Count VI of
Complainant’s Complaint.
21.
The statutory
section cited in paragraph 21
of Count VI ofComplainant’s
Complaint speaks for itself, and therefore Flex-N-Gate makes no response to this
allegation.
To the extent that paragraph 21 ofCount VI ofComplainant’s Complaint
states any allegations offact, Flex-N-Gate denies the same.
WHEREFORE, Respondent, FLEX-N-GATE CORPORATION, prays that the
Illinois Pollution Control Board find against Complainant
on Count VI ofhis
Complaint,
that Complainant take nothing by way of Count VI his
Complaint, and that the Illinois
Pollution Control Board grant Flex-N-Gate
all reliefjust and proper in the premises.
CONCLUSION
WHEREFORE, Respondent FLEX-N-GATE CORPORATION, by its attorneys
HODGE DWYER ZEMAN, prays that Complainant take nothing by way ofhis
20
Complaint, and that the Illinois Pollution Control Board award FLEX-N-GATE
CORPORATION all reliefjust and proper in the premises.
Respectfully submitted,
FLEX-N-GATE CORPORATION,
Respondent,
By:_______
Onofs’
eys
Dated:
March 4, 2005
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois
62705-5776
(217) 523-4900
GWST:003/Fil/Answer
—clean
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