1. NOTICE OF FILING
      2. CERTIFICATE OF SERVICE
      3. FLEX-N-GATE CORPORATION’SMOTION FOR LEAVE TO SUPPLEMENT
      4. II. MOTION FOR BRIEFING SCHEDULE
      5. AFFIDAVIT OF THOMAS G. SAFLEY
    1. ~ EXHIBIT
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
FLEX-N-GATE CORPORATION,
an Illinois
corporation,
)
)
APR
182005
STATE OF ILLI~’iOIS
Pollution ControlBoard
Respondent.
)
NOTICE
OF FILING
TO:
Ms. Dorothy M.
Gunn
Clerk of the 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 ofFLEX-N-GATE
CORPORATION’S
MOTION FOR LEAVE TO
SUPPLEMENT
RESPONSE
TO
COMPLAINANT’S MOTION TO STRIKE ANSWER, AND MOTION
FOR
BRIEFING SCHEDULE,
a copy ofwhich is herewith served upon you.
Respectfully submitted,
FLEX-N-GATE CORPORATION,
Respondent,
Dated:
April
15,
2005
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box
5776
Springfield, Illinois
62705-5776
(217) 523-4900
1/
,.‘
By:
One of Its A tome
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB No. 05-49
)
)
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
MOTION FOR LEAVE TO SUPPLEMENT
RESPONSE TO COMPLAINANT’S MOTION
TO
STRIKE ANSWER, AND MOTION
FOR BRIEFING SCHEDULE 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 April
15,
2005.
Thomas G. S~1J4’~
~J
GWST:003/Fil/NOF andCOS
—
Motion for
Leave to
Supplement
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERKS OFFICE
CHAMPAIGN COUNTY, ILLINOIS
APR
182005
MORTON
F.
DOROTHY,
)
STAJE OF ILLINOIS
POllUtiOn Control Board
Complainant,
)
)
v.
)
PCB 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
FLEX-N-GATE CORPORATION’S
MOTION FOR LEAVE TO SUPPLEMENT
RESPONSE TO
COMPLAINANT’S MOTION
TO
STRIKE
ANSWER, AND MOTION FOR BRIEFING SCHEDULE
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through
its attorneys, HODGEDWYER ZEMAN, pursuant to 35
Ill. Admin.
Code
§
101.500(e),
and for its Motion
for Leave to Supplement Response to
Complainant’s
Motion to Strike Answer, and Motion for Briefing Schedule, states as
follows:
1.
Flex-N-Gate
filed its Answer to Complainant’s Complaint on March 4,
2005.
2.
On or about March
15, 2005,
Complainant filed his Motion to
Strike Flex-
N-Gate’s Answer (“Motion to
Strike”).
3.
Complainant directed
his Motion to Strike to
the Hearing Officer for
ruling.
See Complainant’s Motion to Strike.
4.
On March 30, 2005, Flex-N-Gate’s filed its Response to Complainant’s
Motion to
Strike.
5.
In its
Response to Complainant’s Motion to
Strike, Flex-N-Gate argued
that the Hearing Officer did not have authority under the Illinois Pollution Control
Board’s (“Board”) rules to
rule on Complainant’s Motion to Strike.
.S~
Flex-N-Gate’s
Response to Complainant’s Motion to Strike.
6.
On or about April
5,
2005, the undersigned received the correspondence
attached hereto as Exhibit A, which Complainant apparently mailed to the Hearing
Officer.
Affidavit of Thomas G. Safley (“Safley Affidavit”) attached hereto as Exhibit B.
7.
In this correspondence,
Complainant, among other things, argues that “it
is
within the
Hearing Officer’s
authority as hearing officer to rule on” his Motion to
Strike.
Exhibit A at
1.
Complainant also
states that, by his Motion to
Strike, he
is
“requesting a ruling as to the scope ofthe evidence at hearing,” and states:
“I suggest
you
narrow the
focus ofthe case to compliance with the conditions of Section 722.134
and the consequences of a failure to
comply.”
Id.
at
1-2.
8.
Finally, Complainant by his correspondence clearly is attempting to reply
to Flex-N-Gate’s
Response to Complainant’s Motion to Strike, for example,
stating:
“Respondent is correct that petitioner has directed interrogatories on this issue,” referring
to Flex-N-Gate’s
Response to Complainant’s Motion to Strike at pages
11-12.
$~
Exhibit A at I; Flex-N-Gate’s Response to
Complainant’s Motion to
Strike at
11-12.
9.
Under the Board’s rules, “the
moving person will not have the right to
reply, except as permitted by the board or the hearing officer to
prevent material
prejudice.”
35
Ill. Admin.
Code
§
101.500(e).
10.
Complainant
did not seek or receive leave
from the Board or the Hearing
Officer to
reply to Flex-N-Gate’s Response to
Complainant’s Motion to Strike.
2
11.
Nevertheless, Flex-N-Gate
does not move the Board to strike
Complainant’s correspondence to the Hearing Officer, which constitutes an
unauthorized
Reply in support ofComplainant’s Motion to Strike.
12.
Rather, Flex-N-Gate moves
the Board for leave to supplement
its
Response to
Complainant’s Motion to Strike to
address two
issues, and to set
a briefing
schedule, as set forth below.
I.
MOTION FOR LEAVE TO SUPPLEMENT
RESPONSE TO COMPLAINANT’S MOTION TO
STRIKE
13.
First, Flex-N-Gate moves the Board for leave to supplement its Response
in order to
address Complainant’s explanation in his correspondence to the Hearing
Officer that, by his Motion to Strike, Complainant
is “requesting a ruling as to the scope
ofthe evidence at hearing.”
14.
Complainant did not state in his Motion to
Strike that he sought a ruling
under evidentiary rules.
Rather, he moved the Hearing Officer to “strike as evasive the
answer filed by respondent Flex-N-Gate Corporation,” and to find that Flex-N-Gate had
made certain admissions.
Motion to Strike at 2.
15.
In light ofthese prayers
for relief in Complainant’s Motion to Strike, Flex-
N-Gate in its
Response to
Complainant’s Motion to Strike argued that Complainant’s
Motion was insufficient as a Motion to Strike under Section 2-615 of the Illinois Code of
Civil Procedure, that Complainant in his Motion attempted to rely on unsupported
allegations of fact, and
that there was no
inconsistency in
Flex-N-Gate’s filings as
Complainant argued.
3
16.
However, because Complainant did not state in his Motion to Strike that
he was “requesting a ruling as to the scope ofthe evidence at hearing,” Flex-N-Gate had
no
notice that Complainant was seeking such relief, and Flex-N-Gate therefore did not
address evidentiary rules in its Response to Complainant’s Motion to
Strike.
$~
Flex-N-
Gate’s Response to Complainant’s Motion to
Strike; Safley Affidavit at paragraph
4.
17.
Flex-N-Gate would be
materiallyprejudiced if the Board does not
grant it
leave to
supplement its Response to Complainant’s Motion to
Strike to
address the issue
of“the scope ofthe evidence at hearing” that Complainant has now raised, as the Board
or the Hearing Officer would consider that issue in ruling on Complainant’s Motion to
Strike, and Flex-N-Gate has not had an opportunity to respond to that issue.
18.
Second, as set
forth below, Flex-N-Gate moves the Board to set a briefing
schedule on Complainant’s Statement that he “suggests
the
Hearing Officer
narrow
the focus ofthe case to
compliance with the conditions
of Sections 722.134, and the
consequences ofa failure to comply.”
19.
Thus, Flex-N-Gate also
moves the Board for leave to supplement its
Response to
Complainant’s Motion to Strike to
address any issues
raised by Complainant
pursuant to such briefing schedule.
II.
MOTION FOR BRIEFING SCHEDULE
20.
As
noted above,
in his correspondence to the Hearing Officer,
Complainant states:
“I suggest
you narrow the focus of the case to
compliance with the
conditions ofSection 722.134, and
the consequences of a failure to
comply.”
Exhibit A
at
1-2.
4
21.
Flex-N-Gate does not understand what Complainant means by this
statement.
22.
Complainant may mean that he wishes to withdraw some portion of his
Complaint against Flex-N-Gate, thus “narrowing
the focus ofthe case.”
Ifthis
is so,
Flex-N-Gate does not have notice regarding what portion of his Complaint Complainant
wishes to withdraw, and this
may be relevant to Flex-N-Gate’s Response to
Complainant’s Motion to Strike.
23.
Alternatively, Complainant may mean that the Board or the Hearing
Officer should “narrow the focus ofthe case” by striking some argument(s) made by
Flex-N-Gate.
Ifthis
is the case, Flex-N-Gate does not have notice regarding what
arguments ofFlex-N-Gate Complainant is asking the Board or Hearing Officer to strike.
Flex-N-Gate would be
materially prejudiced if it is not provided such notice and given a
chance to respond to
such motion to strike.
24.
Alternatively, Complainant may mean something different entirely.
25.
In light of the above, Flex-N-Gate moves the Board to
set a briefing
schedule ordering that:
a.
within ten
days of the Board’s Order setting the briefing schedule,
Complainant must file a Supplement to
his Motion to Strike to
explain his statement that the hearing Officer “narrow the focus of
the case”; and,
b.
within ten
days of service of Complainant’s Supplement to his
Motion to Strike, Flex-N-Gate must file its Supplement to
its
Response to Complainant’s Motion to
Strike to respond to issues
raised by Complainant in his Supplement,
and to
address the
evidentiary issues raised by Complainant’s correspondence to
the
Hearing Officer discussed above.
5
WHEREFORE, Respondent, FLEX-N-GATE CORPORATION, respectfully
moves the Illinois Pollution Control Board to grant it leave to supplement its Response to
Complainant’s Motion to Strike
and to set
a briefing schedule as set forth
above, and
to
award
FLEX-N-GATE CORPORATION such other relief as the Illinois Pollution
Control Board deemsjust and proper in the premises.
Respectfully submitted,
FLEX-N-GATE CORPORATION
Respondent,
By:_________________
‘One ofIt~
di/ie~
j
Dated:
April
15,
2005
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box
5776
Springfield,
Illinois
62705-5776
(217) 523-4900
GWST:003/Fil/Motion
for Leave to
Supplement Response to Motion to
Strike
6
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
AFFIDAVIT
OF THOMAS
G. SAFLEY
Thomas
G. Safley, being first
duly sworn, deposes and states under oath, and if
sworn
as a witness, would testify,
as follows:
1.
I have personal knowledge of the matters
set forth in this affidavit.
2.
I am an attorney duly licensed in the State of Illinois, and have been
retained by respondent Flex-N-Gate Corporation to represent it in this matter.
3.
On or about April
5,
2005, I received the correspondence attached to Flex-
N-Gate’s Motion for Leave to
Supplement Response to Complainant’s Motion to Strike
as Exhibit A, which
Complainant apparently mailed to the Hearing Officer.
4.
Because Complainant
did not state in his
Motion to Strike
that he was
“requesting a ruling as to
the scope of the evidence at hearing,” Flex-N-Gate had no
notice that Complainant was seeking such relief~,and Flex-N-Gate therefore did not
address evidentiary rules
in its Response to
Complainant’s Motion to Strike.
Under penalties as provided by law pursuant
to Section 1-
109 of the Code of Civil Procedure,
the undersigned
certifies that the statements set forth in this instrument
are true and correct,
except
as
to matters therein s:ated
to be on information and belief and as
to such matters the
undersigned certifies as aforesaid that he verily believes
the same
to be
true.
FURTHER AFFIANT SAYETH
NOT.
2005.
T
m
s G. Safley
“OFFICIAL SEAL”
Patti L. Tucker
Notary Public, State of Illinois
My Commission Exp. 07/12/2008
GWST:003/Fil/Affidavit of Thomas Safley
2
(
Morton
F.
Dorothy
804 East
Main
Urbana
IL 61802-2822
217/384-1010
MDor4248@AOL.COM
April ~
2005
Carol Webb,
Hearing Officer
Illinois Pollution
Control Board
1021
North Grand Avenue
East
P.O.
Box 19274
Springfield, IL 62794-9274
Re:
PCB 05-049,
Morton
F.
Dorothy v. Flex-n-gate Corporation
Dear
Ms. Webb:
As per your request,
I
have forwarded
a copy of my Motion
to Strike Answer to
the Board.
I believe, however,
that it is within your authority as hearing officer to rule on
this motion.
Section
101.502(a) provides
as follows:
The hearing
officer has the authority to rule on
all
motions that are
not
dispositive of the
proceeding.
Examples of motions 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 of proof, motions claiming lack of jurisdiction,
motions for
consolidation,
motions for summary judgment,
and
motions for
reconsideration...
A ruling
on the
motion
would
not be dispositivë of the proceeding: nor would
it
strike
a defense.
Complainant is instead requesting
a
ruling
as to the
scope of the
evidence
at hearing. Respondent has already admitted in the
pleadings
in
this case that
it claims exemption under Section
722.134(a), and attached
a supportina
affidavit to
that effect. The hearing
officer should not allow respondent
to introduce evidence to the
contrary at hearing.
Respondent
is correct that petitioner has directed
interrogatories
at this
issue,
which
was raised by the
answer. If the hearing officer were to strike this
portion of the
answer, respondent would,
of course,
not have
to respond to those
interrogatories.
Section 722.134 allows
certain
types
of hazardous waste facilities to operate
without
a RCRA permit or interim
status,
provided they comply with
certain
Board rules,
including the contingency planning
rules which are the subject of this
case.
I suggest
~
EXHIBIT
B
you narrow the focus of the case to compliance with the conditions of Section 722.134,
and the consequences of a failure to comply.
Sincerely,
Morton
F.
Dorothy

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