BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
CLEFIK’S OFFICE
NOTICE
OF FILING
APR
012005
STATE OF ILUNOIS
Ponut~0r~
Control Board
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)
Dated:
March 30, 2005
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
~
Springfield, Illinois
62705-5776
(217) 523-4900
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)
FLEX-N-GATE CORPORATION,
Respondent,
By:
On~fI~k
~)
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB No.
05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk of
the Illinois Pollution Control Board an
original and four copies of
FLEX-N-GATE
CORPORATION’S RESPONSE
TO COMPLAINANT’S MOTION TO
STRIKE
ANSWER,
a copy ofwhich is herewith served upon you.
Respectfully submitted,
THIS
FILING
SUBMITTED
ON RECYCLED PAPER
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
FLEX-N-GATE CORPORATION’S RESPONSE TO COMPLAINANT’S MOTION TO
STRIKE ANSWER 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
Post 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 30, 2005.
Tho
GWST:003/Fil/NOF and COS
—
Response to Motion to Strike
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
APR ~12005
MORTON F. DOROTHY,
)
PO~unor~
LIQflfrQI
Board
Complainant,
‘
)
)
v.
)
PCB
05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
FLEX-N-GATE CORPORATION’S
RESPONSE TO COMPLAINANT’S MOTION TO
STRIKE
ANSWER
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, pursuant to 35 Iii. Admin.
Code
§
101.500(d), and for its Response to Complainant’s Motion to Strike Answer,
states as follows:
I.
INTRODUCTION
Flex-N-Gate filed its Answer to Complainant’s Complaint on March 4, 2005.
On
March 15, 2005, Complainant mailed his Motion to Strike Answer (“Motion to Strike”)
to Flex-N-Gate’s
counsel “by first class mail.”
See Motion to Strike, Certificate of
Service.
Flex-N-Gate timely files this Response to
Complainant’s Motion to
Strike.
As set forth more fullybelow, the Hearing Officer must deny Complainant’s
Motion to Strike because Illinois Pollution Control Board (“Board”) Hearing Officers do
not have authority to rule on Motions to
Strike Pleadings.
The Board must deny
Complainant’s Motion to
Strike because that Motion is not permitted under the Board’s
rules, it seeks to rely on unsupported allegations of fact, and,
even if itwas proper, Flex-
N-Gate’s Answer is
not inconsistent with its previous filings.
II.
ANALYSIS
Section 101.500(a) of the Board’s Procedural Rules provides that “the
Board
may entertain any motion the parties wish to file that is permissible under the Illinois
Environmental Protection
Act or other applicable law, these rules, or the Illinois Code of
Civil Procedure.”
35
Ill. Admin. Code
§
101.500(a).
Section 101.500(b) further provides
in relevant part that:
All motions must be in writing,‘unless made orally on the record during a
hearing or during a status conference, and must state whether directed to
the Board or to the hearing officer. Motions that should be directed to the
hearing officer are set out in
Section 101.502 ofthis Part.
35
Ill. Admin.
Code
§
101.500(b).
Section 101.502(a) provides in relevant part that:
The hearing officer has the authority to rule on all motions that are not
dispositive ofthe proceeding. Examples ofmotions that hearing officers
may not rule upon are motions to dismiss, motions to
decide a proceeding
on the merits,
motions to strike any claim or defense for insufficiency or
want ofproof, motions claiming lackofjurisdiction, motions for
consolidation, motions for summaryjudgment, and motions for
reconsideration.
35 Ill. Admin. Code
§
101.502(a).
(Emphasis added.)
For the reasons set
forth below, the Hearing Officer,
and the Board, must deny
Complainant’s Motion to
Strike.
B.
The Hearing Officer must deny Complainant’s Motion because Board
Hearing Officers do ‘not have authority to rule on Motions to Strike
Pleadings.
Complainant does not direct his
Motion to Strike to the Board, but to the Hearing
Officer.
See,
e.g., Motion to Strike at 2 (“WHEREFORE complainant prays that the
Hearing Officer
...
strike
as evasive the Answer filed by respondent Flex-N-Gate
2
Corporation.”).
(Emphasis added.)
However, “the
Board’s procedural rules prohibit the
hearing officer from ruling on..
.
motions to dismiss
ormotions to
strike.”
Citizens
Against Regional Landfill v. County Board of Whiteside County,
et al., PCB No.
92-156,
1992
Ill. ENV LEXIS 940, at
*5
(Ill.Pol.Control.Bd. Dec.
17,
1992).
Rather, Board
Hearing Officers only have authority “to rule on.
.
.
motions that are not dispositive of
the proceeding.”
35 Ill. Admin.
Code
§
101
.502(a).
By his Motion, Complainant
clearly intends the Hearing Officer to issue a ruling
that
is “dispositive,” that is, to “strike
...
the Answer filed by
...
Flex-N-Gate,” and to
find that “Flex-N-Gate Corporation has admitted in this proceeding that it claims to be
exempt from RCRA permitting requirements under
35 Ill.
Adm. Code 722.134(a)~”
Motion to Dismiss at 2.
Thus, under Section 101.502(a), Complainant’s Motion must be
decided by the Board, not by the Hearing Officer.
See 35
Ill.
Admin.
Code
§
101.502(a).
Complainant cites no authority that would allow the Hearing Officer to ignore Section
101.502(a).
Therefore, and for the reasons stated above, the Hearing Officer must deny
Complainant’s Motion to Strike on the grounds that Board Hearing Officers do not have
authority under the Board’s rules to
rule on motions to strike pleadings.
C.
The Board must Deny Complainant’s Motion because it is not
“Permissible under the Act or other Applicable Law, theF
Board’s
Rules,
or the Illinois Code ofCivil Procedure.”
As noted above, “the
Board may entertain any motion the parties wish to file
that is permissible under the Act or other applicable
law, these rules, or the Illinois
Code
ofCivil Procedure.”
35 Ill. Admin. Code
§
101.500(a).
(Emphasis added.)
Complainant’s Motion is not “permissible” under any ofthese authorities.
3
Complainant moves the Hearing Officer to “strike
as evasive the answer filed
by” Flex-N-Gate.
Motion to Strike at 2.
Section 2-6 15
ofthe Illinois Code ofCivil
Procedure governs Motions to
Strike.
~
735
ILCS
5/2-615(a).
A motion brought pursuant to section
2-615
...
attacks the legal
sufficiency ofthe complaint.
It must be determined whether the
allegations ofthe complaint, when viewed in a light most favorable to the
plaintiffs, are sufficient to state a cause ofaction upon which relief can be
granted.
A section 2-615 motion admits as true all well-pleaded facts, but
not conclusions oflaw or factual conclusions that are unsupported by
allegations of specific facts.
*
*
*
Presenting
evidentiary material going to the truth ofthe allegations
contained in
the complaint
in
support of a motion to strike
is improper
because a motion pursuant to
either section 2--615 or section 2--6l9
concedes the truth ofall well-pled allegations in the complaint. Further, a
section 2--615 motion, unlike
a section 2--619 motion or a motion for
summaryjudgment pursuant to
section 2--lOOS (735 ILCS
5/2-4005(c)
(West 1998)), is
a motion based on the pleadings rather than the
underlying facts. Accordingly, depositions, affidavits, and other
supporting materials may not be considered by the court in ruling on a
section 2--615 motiOn.
Provenzale v. Forister,
318 Ill. App. 3d 869,
878-79, 743
N.E.2d
676,
683-84 (2d Dist.
2001).
(Emphasis added; citations omitted.)
These principles apply to motions to
strike filed in cases before the Board.
~
~
Shelton v.
Crown, PCB 96-53,
1996 Ill. ENV LEXIS 329, at *3 (I1l.Pol.Control.Bd.
May 2,
1996) (holding that the Board “will applythe principles applied to
Illinois Code
ofCivil Procedure 2-615
and 2-619 motions to
strike or dismiss” when deciding such
motions in cases before it) and cases cited therein.
In Provenzale, the defendants “filed separate motions to
strike and dismiss” the
plaintiffs’
complaint “pursuant to sections 2-615 and 2-619(a)(9) ofthe Code ofCivil
4
Procedure,” and in support ofthese motions, filed additional
“evidentiary material going
to the truth ofthe allegations contained in the complaint.”
318 Iii. App. 3d at 873, 879,
743 N.E.2d at 679, 683.
The trial court granted the motions to strike, and struck two
paragraphsof the complaint. j~ The appellate court reversed this decision on appeal
because, in granting the motions to
strike, the trial court relied on the additional
“evidentiary material” instead ofjust reviewing the pleading at issue.
318 Ill. App. 3d at
879,
743 N.E.2d at 683-4.
The Appellate
Court found that “this is improper,” stating:
“If the Foristers wished to
contest factual allegations in the complaint, they should have
filed motions for summary judgment.”
~
Here,
Complainant also tries to support his Motion to
Strike with “evidentiary
material” beyond the ‘face of Flex-N-Gate’s pleading, namely 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 (“Motion to Join”) and the Affidavit ofJames R. Dodson
submitted in support ofthat Response.
~
Motion to Strike at ¶~f4-6.As in Provenzale,
this is not permitted; Complainant may contest the statements in Flex-N-Gate’s Answer
in
a Motion for Summary Judgment, but may not do
so in a Motion to Strike.
Thus,
Complainant’s Motion to Strike is ~
a motion that is “permissible under the Act or
other applicable law, these rules, orthe Illinois
Code ofCivil Procedure,” as required by
35
Ill. Admin.
Code
§
101.500(a), and the Board must deny Complainant’s Motion.
5
D.
Complainant’s Motion to Strike Also is Defective as it Attempts to
Rely on Unsupported Statements
and Conclusions
of Fact.
Further, even if it were permissible for Complainant
to
support his Motion with
evidentiarymaterials, Complainant’s Motion to
Strike also is defective in that the
evidentiarymaterials on which Complainant attempts to rely constitute unsupported
statements and conclusions offact.
The Board’s procedural rules make clear that, in Motions filed with the Board,
“f
acts 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.
Paragraphs
ten and eleven ofComplainant’s
Motion to Strike state:
10.
Complainant withdrew his motion to join the Agency as a party in
interest in reliance on respondent’s admission that it claimed
exemptionpursuant to
Section 722.134(a).
As discussed in that
motion, in the event respondent is denying that it claims
exemption
under Section 722.134(a), it is repudiating longstanding regulatory
understandings between the Illinois Environmental Protection
Agency and itself
Iii such event, the Agency needs to be joined as
a partyin interest to this case.
11.
Complainant would be prejudiced ifrespondent were allowedto
again reverse itself as to this issue which is central to the
complaint.
Motion to Strike at 2.
These paragraphs include at least three statements or conclusions offact, namely:
•
that “Complainant withdrew his motion to join the Agency as a partyin
interest in reliance on respondent’s admission.
.
•
that Flex-N-Gate
“is repudiating longstanding regulatory understandings
between the Illinois Environmental Protection Agency and itself’; and,
6
•
that “Complainant would be prejudiced if respondent were allowed” to
“again reverse itself.”
Id.
However, Complainant did not attach any affidavit or cite any other evidence in
support ofthese allegations.
See Motion to
Strike.
Thus,
Complainant has not
“supported” these allegations “in accordance with Section
1-109 ofthe Code ofCivil
Procedure,” as Section 101.504 ofthe Board’s procedural rules requires, and the Board
must deny Complainant’s Motion to Strike on that basis as well.’
E.
Even
if Complainant’s
Motion to Strike was Proper, Flex-N-Gate’s
Answer
and its Previous Submissions are not Inconsistent.
Finally, even if Complainant’s Motion was proper, the Board would have to deny
that Motion because Flex-N-Gate’s Answer and its previous submissions to the Board are
not inconsistent.
As noted above, Complainant argues that Flex-N-Gate’s Answer to paragraph 12
ofthe Allegations Common to All Counts (“Common Allegations”) ofComplainant’s
Complaint is inconsistent with paragraph
16 ofFlex-N-Gate’s Response to
Complainant’s Motion to Join and paragraph 8 ofthe Affidavit ofJames R. Dodson
submitted in support of that Response.
$~
Motion to
Strike.
Paragraph 12
of
Complainant’s Common Allegations
states as follows:
Complainant did attach an Affidavit in support ofhis Motion to Join, but did not cite
that Affidavit in support ofhis Motion to Strike.
~
Motion to
Strike.
Further, even if
Complainant had done
so, as discussed in Flex-N-Gate’s Response to Complainant’s
Motion to Join,
Complainant’s Affidavit is defective.because it is conclusory, and the
Board “can
not grant relief.
.
.
on the basis ofa mere conclusion” in an affidavit.
~A
v. Rhodes, PCB No. 71-53, 1972
Ill. ENV LEXIS
169, at *1
(Ill.Pol.Control.Bd. Jan. 24,
1972).
See Flex-N-Gate’s Response to Motion to Join at 8-9; Flex-N-Gate’s Response to
Complainant’s Motion to Accept for Hearing and
for Expedited Discovery at 8-9.
7
Respondent claims that the facility operates pursuant to 35
Ill. Adm.
Code
703.123(a)
and 722.134(a),
as a large quantity generator ofhazardous
waste which is treated on-site in tanks, without a RCRA permit or interim
status.
In the event the Board determines that this claim is valid, Section
722.134(a)(4) requires compliance with 35 Ill.
Adm. Code 725.Subpart D,
including Sections 725.15 1
through 725.156.
In the event the Board
determines that this claim is
invalid, respondent is operating an
unpermitted hazardous waste treatment and storage facility which is
subject to Section 725.151
through 725.156 directly.
Complaint at 2.
Flex-N-Gate’s Answer to paragraph
12 states:
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 of fact, Flex-N-Gate denies
the same.
Flex-N-Gate’s Answer at 4.
Paragraph 16 ofFlex-N-Gate’s Response to Complainant’s Motion to Join, and
paragraph
8 ofMr. Dodson’s Affidavit, state:
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. i.e.,
Affidavit ofJ. Dodson
at~J8.
Flex-N-Gate’s Response to Complainant’s Motion to Join at 4, Exhibit A, at ¶8.
Complainant does not explain how these statements allegedly are inconsistent, but
merely states:
“Respondenthas, in this proceeding, admitted the substance ofthe
allegation ofparagraph 12 ofthe complaint, and cannot now deny the same.”
Motion to
Strike at ¶8.
By “the substance ofthe allegation ofparagraph 12,” Flex-N-Gate assumes
that Complainant means the first sentence ofparagraph
12, as the second and third
sentences ofthat paragraph state legal conclusions, and there is no such thing as a binding
8
“legal admission.”
Paige-Myatt v. Mount Sinai Hospital Med. Center, et al., 313 Ill. App.
‘3d 482, 490,
729 N.E. 2d 908,
915
(1st Dist.
2000).
The fact that Flex-N-Gate’s statements are not inôonsistent is illustrated by
comparing the first sentence ofparagraph
12 ofComplainant’s Complaint with
paragraphs ofJim Dodson’s affidavit surrounding paragraph 8, which Complainant did
not cite in his Motion to
Strike.
Again, the first sentence ofparagraph 12
states:
Respondent claims that the facility operates pursuant to
35
Ill. Adm.
Code
703.123(a) and 722.134(a), as a large quantity generator ofhazardous
waste which is treated on-site in tanks,
without a RCRA permit or interim
status.
Complaint at ¶12.
(Emphasis added.)
Complainant made this same allegation in paragraph
1
of his Motion to
Join,
stating:
As alleged in paragraph 12 ofthe complaint, 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 which is treated on-site in tanks, without a RCRA
permit or interim status.
Motion to Join at ¶1.
(Emphasis added.)
In response to Complainant’s Motion to Join, Flex-N-Gate cited the Affidavit of
James R. Dodson, which in~
relevant part states:
4.
At the facility in question in this matter, Flex-N-Gate produces
several different wastestreams, some ofwhich
are “hazardous”
under RCRA.
5.
However, Flex-N-Gate relies on exemptions from RCRA
permitting requirements with regard to each ofits wastestreams
that is “hazardous.”
9
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 Ill. 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 ofhis
Motion to Join Agency.
11.
Rather, Flex-N-Gate always has considered different wastestreams
at the facility at issue to be exempt from RCRApermitting
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.
Motion to Join,
Exhibit A, at ¶114-13.
(Emphasis added.)
10
Thus, in both his Motion to Join and paragraph 12 ofhis Complaint, Complainant
alleges that Flex-N-Gate “claims or
“claimed”
that the facility operated pursuant to 35
Ill. Adm.
Code 703.123(a) and 722.134(a).
.
.
.“
(Emphasis added.)
And in both cases,
Flex-N-Gate denies that allegation, stating in response to the Motion to Join:
‘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,
and in its Answer to Paragraph
12, simply stating:
Flex-N-Gate denies the allegation contained in the first sentence of
paragraph
12 ofComplainant’s Complaint.
~
supra.
As for Flex-N-Gate’s statement in paragraph
12 ofits Response to Complainant’s
Motion to Join that:
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),
Flex-N-Gate simply does not understand Complainant’s argument
—
and disagrees with
Complainant’s argument
—
that this statement somehow constitutes an “admission
of the
substance ofthe allegation ofparagraph 12 of the complaint,” as Complainant argues in
paragraph
8 ofhis Motion to Strike.
Again, paragraph
12 makes an allegation regarding
“the facility,” while Flex-N-Gate’s statement in its Response to
Complainant’s Motion to
Join addresses certain “wastestreams” within the facility.
These are different things.
(Finally, Flex-N-Gate notes that
Complainant has served Interrogatories on Flex-
N-Gate, relevant portions ofwhich are attached hereto as Exhibit A, which
11
Interrogatories ask, among other things:
“By which provisions has respondent, prior to
August
5,
2004,
claimed exemptions from the RCRApermit requirement for the
Guardian West facility.”
Exhibit A, ¶3.
Any confusion on Complainant’s part with
regard to
how Flex-N-Gate handles its hazardous waste will be cleared up by Flex-N-
Gate’s answer to this Interrogatory.)
F.
Complainant has
Proffered
No
Support for the Reliefhe Requests.
Complainant asks the Board (1) to find that Flex-N-Gate has made certain
admissions
in this matter, (2) to
“strike as evasive the answer filed by” Flex-N-Gate, and
(3)
to “deem paragraph
12 ofthe common allegations of the complaint to
be admitted.”
Motion to Strike at 2.
However, Complainant has not cited any Board or court case in
which such relief has been granted, nor has Complainant cited a single statutory provision
or rule to support his request for relief.
Instead, Complainant has filed an impermissible
motion that seeks to rely on unsupported statements of fact and seeks relief that is
unnecessarybecause the alleged inconsistency at issue does not exist.
“The burden is upon the movant to clearly state the reasons for and the grounds
upon which a motion
is made, and
to timely file and adequately support a motion
directed to
the Board.”
Goose Lake Ass’n v. Robert J. Drake, Sr., First National Bank of
Joliet as Trustee, Trust No.
370, PCB No. 90-170,
1991
Ill. ENV LEXIS 432,
at
**
1-2
(Ill.Pol.Control.Bd. June
6,
1991).
As set
forth above, Complainant has not provided any
support, much less “adequate
support,” for his Motion to
Strike, and the Board should
deny that Motion.
12
IV.
CONCLUSION
WHEREFORE,
the Respondent FLEX-N-GATE CORPORATION respectfully
prays that the Illinois Pollution Control Board deny Complainant’s Motion to Strike and
award FLEX-N-GATE CORPORATION such other relief as the Illinois Pollution
Control Board deems just.
Respectfully submitted,
FLEX-N-GATE CORPORATION
Respondent,
By:_______
On
ofI ~tto~e~s
Dated:
March 30, 2005
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois
62705-5776
(217) 523-4900
GWST:OO3fFil/Response to Motion to Strike Answer
13
