1. CERTIFICATE OF SERVICE
    2. REQUEST FOR PRODUCTION OF DOCUMENTSINTERROGATORIES
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
CHAMPAIGN
COUNTY, ILLINOIS
APR
152005
MORTON F.
DOROTHY,
)
Complainant,
)
)
vs.
)
No.
PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
MOTION TO STRIKE
ANSWER
Complainant Morton
F.
Dorothy moves that the
Hearing Officer strike
the answer
to paragraph
12 of the common allegations of the complaint filed in this case on or
about March
4, 2005,
by respondent Flex-N-Gate Corporation, and as reason states as
follows:
1.
On or about March 4, 2005, respondent Flex-N-Gate Corporation filed an answer
to the complaint filed in this case on September 8, 2004
2.
Paragraph 12 of the
common allegations of the complaint alleges as follows:
Respondent claims that the, facility operates pursuant to 35
III. Adm. Code
703.123(a) and 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.
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 725.151 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 Sections 725.151 through 725.156 directly.
3.
Paragraph
12 of the answer states as follows:
Flex-N-Gate denies
the allegation contained
in
the first sentence of
paragraph
12 of Complainant’s
Complaint. The remainder of paragraph
12
states legal conclusions that do
not call for
a
response.
To the extent
paragraph
12 states any further allegations of fact,
Flex-N-Gate denies
the
same.
4.
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.
5.
In paragraph
16 of the November 3
response,
respondent stated:
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).
6.
The same response also included an affidavit of James
R.
Dodson, including
the
same statement as paragraph 8
in
the affidavit.
7.
Section 703.123(a) provides as follows:
The following
persons are among those that are not required to obtain a
RCRA permit:
.
.
.a)
Generators that accumulate hazardous waste on-site
for less than the time periods provided in
35
III. Adm. Code
722.134;...
8.
Respondent has,
in this proceeding, admitted the substance of the allegation of
paragraph
12 of the complaint, and cannot now deny the
same.
9.
Respondent is, at a minimum, engaged in
evasive pleading.
10.
Complainant withdrew
his motion to join the Agency as a
party in interest in
reliance on
respondent’s admission that itclaimed exemption pursuant 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.
In such event, the Agency needs to be joined as a
party in interest to this case.
1’l.
Complainant would be prejudiced if respondent were allowed to again reverse
itself as to this issue which
is central to the complaint.
WHEREFORE complainant prays that the
Hearing Officer:
A.
Find that respondent Flex-N-Gate Corporation
has admitted
in
this proceeding
that it claims to be exempt from
RCRA permitting requirements under 35
III.
Adm. Code 722.134(a).
B.
Strike as evasive the answerfiled
by respondent Flex-N-Gate Corporation.
C.
Deem paragraph
12 of the’ common allegations of the complaint to be admitted.
Morton
F.
Dorothy
804 East Main
Urbana 1L61802
~
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 documents, by first class
mail, upon the
listed persons, on the
I”~~
day of March,
2005.
REQUEST FOR PRODUCTION
OF
DOCUMENTS
INTERROGATORIES
REQUEST TO ADMIT THE TRUTH
OF
CERTAIN FACTS
REQUEST TO ADMIT THE
GENUINENESS
OF CERTAIN DOCUMENTS
MOTION
TO STRIKE ANSWER
‘
,
Thomas G. Safley
Hodge Dwyer Zeman
3150 Roland Avenue
Post Office Box 5776
Springfield
IL 62705-5776
Morton
F. Dorothy, Complainant
Fl
2trfll
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021
North Grand Avenue
East
P.O.
Box
19274
Springfield,
IL
62794-9274
Morton F. Dorothy
804 East Main
Urbana IL 61802
217/384-1010

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