FLEX-N-GATE CORPORATION,
an illinois corporation,
Respondent.
)
)
PCB No.
05-49
)
)
)
)
)
RECEIVED
CLERK’S OFFICE’
MAY 112005
STATE OF ILLINOIS
Pollution Control Board
NOTICE OF FILING
TO:
Ms. DorothyM. 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 each ofFlex-N-Gate
Corporation’s RESPONSE
TO
COMPLAINANT’S MOTION
TO COMPEL
RESPONSE
TO
INTERROGATORIES; RESPONSE
TO
COMPLAINANT’S
MOTION TO COMPEL RESPONDENT TO
ADMIT
THE TRUTH OF CERTAIN
FACTS; and RESPONSE TO COMPLAINANT’S MOTION TO COMPEL
PRODUCTION OF DOCUMENTS,
copies ofwhich are herewith served upon you.
Respectfully submitted,
FLEX-N-GATE CORPORATION,
Respondent,
• Dated: May 10, 2005
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
By:
1~g
~~ftom~s
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
Complainant,
)
V.
THIS
FILING
SUBMITTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
RESPONSE TO COMPLAINANT’S MOTION TO COMPEL RESPONSE TO
INTERROGATORIES; RESPONSE TO COMPLAINANT’S MOTION TO COMPEL
RESPONDENT TO ADMIT THE TRUTH OF CERTAIN FACTS; and RESPONSE TO
COMPLAINANT’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS upon:
Ms. DorothyM. 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 May 10, 2005.
GWST:003/Fil!NOF
and
COS
—
Responses to Motions to Compel
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOAMA~’
112005
CHAMPAIGN COUNTY, ILLINOIS
PollutionSTATE
OFControlILLINOISB
MORTON F. DOROTHY,
•)
r
)
Complainant,
)
)
v.
)
PCB05-49
)
FLEX-N-GATE CORPORATION,
)•
an Illinois corporation,
)
)
Respondent.
)
RESPONSE TO
COMPLAINANT’S
MOTION TO COMPEL RESPONSE TO INTERROGATORIES
NOW
COMES
Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by •and through its attorneys,
HODGE DWYER
ZEMAN, and forits Response
to
Complainant’s Motion to Compel Responseto Interrogatories (“Motion to Compel”),
states as follows:
I.
INTRODUCTION
1.
On or about March 19, 2005, Complainant served his Jnterrogatories on
Flex-N-Gate. Affidavit of Thomas G. Safley (“Safley Aff.”) attached hereto as Exhibit
A, at~f3.
2.
On or about April 14, 2005, Flex-N-Gate mailed its Answers to
Complainant’s Interrogatories (“Answers”) to Complainant, relevantportions ofwhich
Answers are attachedhereto as Exhibit B. Safley Aff., at ¶4.
3.
Complainant has filed his Motion to Compel Flex-N-Gate to respond to
certain Interrogatories to which Flex-N-Gate objected in its Answers.
$~
Motion to
Compel.
4.
For the reasons stated below, the Hearing Officer should deny
Complainant’sMotion to Compel.
II.
ANALYSIS
A.
The
Hearing
Officer should Deny Complainant’s Motion to Compel
an Additional Response to Question 9.
5.
Complainant first moves the Hearing Officer to compel Flex-N-Gate to
provide certain information in further response to Complainant’s Interrogatory No. 9.
6.
Complainant’s Interrogatory No. 9 requests:
Names, addresses and telephone numbers forthe following persons, and
•
whether they are still employed by respondent.
a.
Production associates, including team leaders, working in
the loadlunload area for the plating line during third shift
•
on August4-
5,
2004, and first shift on August
5,
2004.
b.
Solution attendants, including team leaders, working on the
plating line during third shift on August
4-5,
2004, and
first shift on August
5,
2004.
c.
Safety officer working during third shift on August
4-5,
2004.
d.
Maintenance persons, including team leaders, working
during third shift on August 4
-5,
2004, and first shift on
August
5,
2004.
Complainant’s Interrogatories, relevantportions of which are attached hereto as
Exhibit C.
7.
In responseto this Interrogatory, Flex-N-Gate stated as follows:
Flex-N-Gate objects to Interrogatory No. 9 to the extent that it seeks
addresses and telephone numbers forteam leaders currently employed by
Flex-N-Gate. Such information is irrelevant because direct contact by
Complainant with suchpersons is prohibited by illinois Rule of
Professional Conduct 4.2. As noted below, if Complainant wishes to
contact such persons, he may contact Flex-N-Gate’s counsel. Flex-N-Gate
2
further objects to Interrogatory No. 9 to the extent that it requests
information which is not in Flex-N-Gate’s possession. The information
that Flex-N-Gate does have which is responsive to Interrogatory No. 9 is
as follows:
Exhibit B at ¶9. (Emphasis added.)
Then, Flex-N-Gateprovided the names ofall fifty-one Facility employees within
the categories designated by Complainant, and, for forty-four ofthose employees, also
provided home addresses and telephone numbers if Flex-N-Gate had that information.
See id. For the other seven employees, Flex-N-Gate did not provide addresses and
telephone numbers, on the grounds stated above.
~
8.
In his Motion to Compel a further response to this Interrogatory,
Complainant states:
Tn response to Question 9, respondent has refused to provide complete
information on certain employees, citing Illinois Rule ofProfessional
Conduct 4.2. That rule does not limit the scope ofdiscovery. Nor does
that rule apply to the complainant in a Board enforcement action.
Motion to Compel, ¶1.
9.
Flex-N-Gate strenuously disagrees.
10.
First, despite Complainant’s argument to the contrary, the Illinois Rules of
Professional Conduct do apply in cases before the illinois Pollution Control Board.
$~
~
Land and Lakes Co., et al. v. Village ofRomeoville, PCB NO.
94-195,
1994 Ill.
ENV LEXIS 1592 (Ill.PoLControLBd. Dec. 14, 1994) (applying the Rules of Professional
Conduct to determine whether an attorney had a conflict in a case before the Board);
People v. Kershaw, No. 92-164, 1993 Ill. ENV LEXIS 691 (Ill.Pol.Control.Bd. July 22,
1993) (same). Flex-N-Gate submits that in an enforcement action before the Board, just
as in a case before a Court, Rule ofProfessional Conduct 4.2 (quoted below) prohibits an
3
attorney on one side ofthe litigation from contacting a party represented by counsel on
the other side ofthe litigation without permission.
11.
Second, Illinois Rule ofProfessional Conduct 4.2 can “limit the scope of
• discovery,” and does limit the scope ofdiscovery in this instance.
12.
Rule ofProfessional Conduct 4.2 provides that:
During the course ofrepresenting a client a lawyer shall not communicate
or cause another to communicate on the subject ofthe representation with
a party the lawyer knows to be represented by another lawyer in that
matter unless the first lawyer has obtained the prior consent ofthe lawyer
representing such other party or as may otherwise be authorized by law.
Illinois Rule ofProfessional Conduct 4.2.
13.
When a party is a corporation, the term “party” in Rule ofProfessional
Conduct 4.2 means:
those employees within the corporation’s “control group,” which is defined
as those top management persons who had the responsibility ofmaking
fmal decisions and those employees whose advisory roles to top
•
•
management are such that a decision would not normally be made without
those persons’ advice or opinion or whose opinions in fact form the basis
ofany final decision.
Fair Automotive Repair. Inc., et al. v. Car-X Service Systems, Inc., et al., 128 111. App. 3d
763, 771, 471 N.E.2d
554, 560
(2d Dist. 1984). (Emphasis added.)
14.
The seven employees at issue are currently employed by Flex-N-Gate as
“Team Leaders” or “Group Leaders.” Affidavit ofGary Hinton, attached hereto as
Exhibit D, at ¶3. They are supervisors. Their job duties include, but are not limited to,
directing employees they supervise in theirjob duties, assessing those employees’ job
performance, completing performance appraisals ofthose employees, participating in
administering the facility’s discipline policy with regard to facility employees,
•
4
communicating with top management at the facility regarding issues associated with the
specific department under their supervision and with individual facility employees, and
helping to develop and implement departmental and individual employee goals. They
advise “top management” regarding decisions affecting their areas ofresponsibility at the
Facility at issue and give opinions that form the basis ofsuch decisions, and such
decisions “would not normally be made withoutthose persons’ advice or opinion.”
~,
at
¶4.’
15.
Complainant is a lawyer, licensed to practice law in the State ofIllinois.
See Exhibit E Safley Aff., ¶116,7. Thus, Complainant is bound by Rule 4.2. ~ Rule
4.2.
16.
Because Complainant is a lawyer, and the Team Leaders and Group
Leaders are members ofthe facility’s “control group,” Complainant cannot contact the
seven Team Leaders and Group Leaders identified withoutFlex-N-Gate’s consent. ~
Rule 4.2.
17.
Because Flex-N-Gate has not consented to Complainant contactingthese
employees, Complainant does not need theirhome addresses and telephone numbers; as
Flex-N-Gate stated in response to Interrogatory No. 9, “such information is irrelevant.”
(Complainant has not identified why he contends that the personal information he
requests is relevant, but the only reason that Flex-N-Gate can identify that it would be
relevant would be to enable Complainant to contact these persons to discuss this lawsuit.)
18.
Thus, because only information that is relevant, or calculated to lead to
relevant information, is discoverable, in this instance, Rule 4.2 does.“limit discovery.”
‘The undersigned will submit the original of this Affidavit to the Board when it is received.
5
Therefore, the Hearing Officer should deny Complainant’s Motion to Compel as to
Interrogatory No. 9.
B.
•
The Hearing Officer should Deny Complainant’s Motion to
Compel Responses to Questions
15, 16 and 17.
19.
Complainant also moves the Hearing Officer to compel Flex-N-Gate to
respond to Complainant’s Interrogatories
15,
16, and 17.
20.
These Interrogatories, and Flex-N-Gate’s responses to these
Interrogatories, stated as follows:
15.
List the personnel at the facility who had received 24-hour
“hazwóper” emergencyresponse training as of third shift on August 4
-5,
2004. Why did these persons receive this training?
ANSWER:
Flex-N-Gate objects to Interrogatory No. 15 on the
grounds that it seeks informationwhich is irrelevant and that it is not
likely to lead to discovery ofrelevant or admissible information.
Occupational Health and Safety Administration (“OSHA”) “hazwoper”
training is irrelevantto the issues in this litigation, namely, whether Flex-
N-Gate violated Section 21(f) ofthe illinois Environmental Protection Act
(“Act”) and certain illinois RCRA regulations. Further, Complainant has
filed a complaint against Flex-N-Gate before OSHA. It is improper for
Complainant to use discovery in this litigation to seek information
regarding that OSHA matter.
16.
Was the 24-hour “hazwoper” training provided in order to
comply with the preparedness requirements’of29 CFR 1910?
ANSWER:
Flex-N-Gate objects to Interrogatory No. 16 on the
grounds that it seeks information which is irrelevant and that it is not
likely to lead to discovery ofrelevant or admissible information. OSHA
“hazwoper” training is irrelevant to the issues in this litigation, namely,
whether Flex-N-Gateviolated Section 21(f) ofthe Act and certain Illinois
RCRA regulations. Further, Complainant has filed a complaint against
Flex-N-Gate before OSHA. It is improper for Complainant to use
discovery in this litigation to seek information regarding that OSHA
matter.
6
17.
Did the facilityhave an Emergency Response Plan for the
facilitypursuant to 29 CFR 1910 as ofAugust
5,
2004? Ifthe facility did
not have such a plan, why was it not required to have one?
ANSWER:
Flex-N-Gate objects to Interrogatory No. 17 on the
grounds that it seeks information which is irrelevant and that it is not
likely to lead to discovery ofrelevant or admissible information. The
existence of an Emergency Response Plan under OSHA is irrelevant to the
issues in this litigation, namely, whether Flex-N-Gate violated Section
21(f) ofthe Act and certain Illinois RCRA regulations. Further,
Complainant has filed a complaint against Flex-N-Gate before OSHA. It
is improper for Complainant to use discovery in this litigation to seek
information regarding that OSHA matter.
Exhibit B at ¶1115-17; Exhibit C at ¶1115-17.
•
21.
Tn support ofhis Motion to Compel answers to these Interrogatories,
Complainant makes the same general arguments he made in support ofhis Motion to
Compel Respondent to Admit the Truth ofCertain Facts. ~ Complainant’s Motion to
Compel Respondent to Admit the Truth ofCertain Facts.
22.
Complainant does not specifically explain why “a list of the personnel at
the facility who had received 24-hour ‘hazwoper’ emergency response training as ofthird
shift on August 4
-5,
2004,” why the question ofwhy “the 24-hour ‘hazwoper’ training
was provided,” why whether “the facilityhad an Emergency Response Plan...
pursuant to 29 CFR 1910 as ofAugust
5,
2004,” orwhy the other information sought by
these interrogatories is allegedly relevant or allegedlywould lead to relevant information.
23.
In response to Complainant’s arguments, Flex-N-Gate hereby incorporates
its Response to Complainant’s Motion to Compel Respondentto Admit the Truth of
Certain Facts. For the reasons stated in that Response, the HearingOfficer should deny
Complainant’s Motion to Compel as to Interrogatories
15,
16 and 17.
7
IV.
CONCLUSION
WHEREFORE, Respondent FLEX-N-GATE CORPORATION respectfully
prays that the Hearing Officer deny Complainant’s Motion to Compel Response to
Interrogatories and grant FLEX-N-GATE CORPORATION such other relief as the
Hearing Officer deems just.
•
Respectfully submitted,
•
FLEX-N-GATE CORPORATION
Respondent,
Dated: May 10, 2005
By:
~
/
One o Its
o eys
Thomas G. Safley
HODGE DWYER ZEMAN
3150 RolandAvenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:003/FillResponse to Motion to Compel
-
Interrogatories
8
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
MORTONF. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB
05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
• Respondent.
)
AFFIDAVIT
OF
THOMAS G. SAFLEY
Thomas G. SafI~ey,being first duly sworn, deposes and states under oath, and if
sworn as a witness, would testify, as follows:
1.
I have personal knowledge ofthe matters set forth in this affidavit.
2.
I am an attorney duly licensed in the State ofIllinois, and have been
retainedby respondent Flex-N-Gate Corporation (“Flex-N-Gate”) to represent it in this
matter.
3.
On or about March 19, 2005, Complainant served his Interrogatories on
Flex-N-Gate.
4.
On or about April 14, 2005, Flex-N-Gate mailed its Answers to
Complainant’s Interrogatories (“Answers”) to Complainant, relevant portions ofwhich
Answers are attached to Flex-N-Gate’s Response to Complainant’s Motion to Compel
Response to Interrogatories (“Response to Motion to Compel”) as Exhibit B.
5.
A copy ofrelevant portions ofComplainant’s Interrogatories is
attached to Flex-N-Gate’s Response to Motion to Compel as Exhibit C.
6.
The document attached to Flex-N-Gate’s Response to Motion to Compel
as Exhibit E is a true and accurate copy ofinformation which Flex-N-Gate obtained from
the Internet site ofthe Illinois Attorney Registration and Disciplinary Commission
(“ARDC”) relating to Complainant.
7.
The undersigned has requested a certified copy ofthis information from
the ARDC and will provide such certified copy to the Illinois Pollution Control Board
when it is received.
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 stated
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.
•
FURTHERAFFIANT SAYETH NOT.
Th
~
Subscribed and sworn to before
____
______________
2005.
GWST:OO3IFilIAffidavit of Thomas Safley
-
Response to MTC
-
Interrogs
2
(g’•~•
,1
~j~’ u
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
•)
Complainant,
)
•)
v.
• •
)
PCB No. 05-49
)
(Enforcement)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)•
•
Respondent.
)
•
FLEX-N-GATE CORPORATION’S
ANSWERS TO COMPLAINANT’S INTERROGATORIES
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, pursuant to 35111. Admin.
Code
§
10 1.620, and for its Answers to Complainant’s Interrogatories, states as follows:
1.
List any witnesses respondent intends to call at hearing, including name,
address, phone number, and whether the witness is to testify as an expert witness.
ANSWER:
Flex-N-Gate has not yet determined what witnesses, ilany, it
intends to call at hearing. Flex-N-Gate will supplement its response to this Interrogatory
pursuant to
35
111. Adruin. Code
§
101.616(h) at such time that it makes such
determination.
2.
List any documentary or physical evidenc.e respondent intends to
introduce at hearing.
ANSWER:
Flex-N-Gate has not yet determined what documentary or physical
evidence, if any, it intends to introduce at hearir~ig. Flex-N-Gate ~vil1supplement its
response to thisInterrogatory pursuant to 35 Ill. Admin. Code
§
lOl.6ft(h) at such time
that it makes such determination.
3.
By which provisions has respondent, prior to August 5. 2004, claimed
exemption from the RCRA permit requirement for the Guardian West facility?
ANSWER: First, the Guardian West facility which is the subject of this action
(“Facility”) has “claimed exemption from th~RCRA permit requirement” for any
to this material as “plating room floor waste water.” However, if appropriate under the
circumstances, Flex-N-Gate may refer to this material in some other way.
8.
By what name does the respondent wish to call the series ofevents that
occurred during third shift on August 4 -5, 2004 on respondent’s plating line, which
events are the subject ofthis enforcement action?
ANSWER:
Flex-N-Gate objects to Complainant’s Interrogatory No. 8 to the
extent that it attempts to limit Flex-N-Gate’s ability to describe its Facility or events at its
Facility in this litigation as appropriate under the circumstances. Flex-N-Gate further
objects to Interrogatory No. 8 to the extent that by this Interrogatory, Complainant seeks
information regarding how Flex-N-Gate might refer to its Facility or events at its Facility
in some context unrelated to this litigation.
••
Notwithstanding these objections, Flex-N-Gate responds to Interrogatory No. 8 as
follows:
In response to Interrogatory No. 8, Flex-N-Gate assumes that by the phrase “the
series of events that occurred during third shift on August
4-5,
2004 on respondent’s
plating line,” Complainant refers to the events alleged in p~ragraphs14 through 27 of
Complainant’s Complaint. Because Flex-N-Gate disputes some ofthese allegations,
Flex-N-Gate does not intend to refer to these alleged events collectively. Flex-N-Gate
does intend to refer to the separation of the pipe that transports sulfuric acid from the
Facility’s bulk sulfuri~acid storage tank to Tank No. 8 in the plating room, which
separation occurred on August
5,
2004, and the resulting release ofsome sulfuric acid
from that separated pipe, as “the Tank No. 8 piping release.” However, ilappropriate
under the circumstances, Flex-N-Gate may refer to this separation and release olsulfuric
acid in sonic other way.
9.
Names, address~sand telephone numbers fbr the following persons, and
whether they arc still employed by respondent.
.1.
Production associates, includi~igteam leaders, working in the load/unload
•
area for the plating line during third shift on August 4
-
5. 2004. and first
shift on August 5, 2004.
b.
Solution attendants, including team leaders, working on the plating line
during third shift on August 4 -5, 2004, and iirstshift on August 5, 2004.
c.
Safety officer worl~ingduring third shift on August 4 -5. 2004.
d.
Maintenance persons, including team leaders, working during third shift
on August 4 -5, 2004, and first shifl on August
5.
2004.
4
ANSWER:
Flex-N-Gate objects to Interrogatory No. 9 to the extent that it
seeks addresses and telephone numbers for team leaders currently employed by Flex-N-
Gate. Such information is irrelevant because direct contact by Complainant with such
persons is prohibited by Illinois Rule of Professional Conduct 4.2. As noted below, if
Complainant wishes to contact such persons, he may contact Flex-N-Gate’s counsel.
Flex-N-Gate further objects to Interrogatory No. 9 to the extent that it requests
information which is not in Flex-N-Gate’s possession. The information that Flex-N-Gate
does have which is responsive to Interrogatory No. 9 is as follows:
a.
FIRST
NAME
••
LAST
NAME
••
.
•
LAST KNOWN ADDRESS
•
•
LAST
KNOWN
TELEPHONE
NUMBER
CURRENTLY
EMPLOYED
• WITH GW
RICHARD
ADAIR
4011 E. AIRPORT RD., URBANA, IL 61802
217-367-1942
Y
DZUBU
•
BENVINDO
do HODGE DWYERZEMAN, 3150 Roland
Avenue, Post Office Box 5776, Springfield, IL
62705
217.523-4900
Y
BRIGITTE
BOMA
do HODGE DWYERZEMAN, 3150 Roland
Avenue,
•
Post Office Box 5776, Springfield, IL 62705
217-523-4900
Y
PEDRO
CASTILLO
317 2ND AVE., TR#9, RANKIN, IL 60960
217-397.2065
Y
ROLANDO
CEDILLO
41 NORWOOD RD., URBANA, IL 61802
217-384-8469
Y
ANDRION
COKELEY
333 S. LINCOLN AyE, APT. #3, URBANA, IL
61866
•
•
•
•
217-893-1480
N
FRANKLIN
CRIOLLO
2104W. WHITE ST., APT. 98, CHAMPAIGN, IL
61821
•
217-352-0772
Y
SANDRA
GARCIA
3217 E. WABASH AVE., RANTOUL, IL 61866
•
217-893-3712
•
Y
RAYMOND
GLOVER
1416 EADS, URBANA, IL 61801
217-344-6837
Y
MICHEL
KALENGA
601 CRESCENT DR., CHAMPAIGN, IL 61821
217-351-3465
Y
DOUG
LARSON
883 PEACHTREE, URBANA, IL 61802
••
217-344-1166
Y
REGINA
•
LEBB.IE
1712 PAULA DR., CHAMPAIGN, IL 61821
217-359-3164
Y
MAVIS
•
•
MOORE
2505 PRIAIRIE GREEN ST, APT G., URBANA, IL
61801
•
217-3a4-3589
‘~‘
GREGORIO NUNEZ
1312 SYCAMORE, RANTOUL, IL 61866
•
217-593-0871
Y
ERICA
PHILLPOTT • 1008 SMITH RD. APT. 20, URBANA, IL 61801
None
N
JESSICA
PRICE
2712 E,CALIFORNIAAVE.,URBANA, IL 61802
217-328-4907 j
N
AURORA
1
RAMIREZ
309 E 2ND AVE., HOOPESTON, IL 60942
217-397-2172
PAM
STANLEY
N
1301 E. LEVERETT RD, #10, CHAMPAIGN, IL
61822
•
217-721-0668
CLARENCE STREUER
lbS. L. ST. TILTON, IL. 61833
217-431-5977
•
N
CLEMENT
TSHOMBA
800W. CHURCH ST, APT. #7, CHAMPAIGN, IL
61820
217-359-1117
APRIL
.
WILLIAMS
904 N BROADWAY, APT#104, URBANA, IL
•
61801
.
217-721-9479
Y
JON
•
HAWKINS.
104 CAPTIVA, URBANA, IL 61802
217-354-3803
N
D
b.
LAST KNOWN
TELEPHONE
NUMBER
FIRST
NAME
LAST
NAME
LAST KNOWN ADDRESS
CU
RRE~iI~11
EMPLOYED
WITH GW
JOSEPH
AL-
HUSSANI
2406 PRAIRIE GREEN DR., APT. E,
CHAMPAIGN, IL 60801
217-721-5723
N
KEVIN
BLUMER
301 S. LOCUST, LOLDA, IL 60948
None
Y
do HODGE DWYER ZEMAN, 3150 Roland
Avenue,
SHERYL
LARRY
•
DRAKE
KELLY
Post Office Box 5776, Springfield, IL 62705
do HODGE DWYER ZEMAN, 3150 Roland
Avenue, Post Office Box 5776, Springfield, IL
62705
.
•
.
217-523-4900
217-523-4900
Y
Y
1339 N., LINCOLN AVE., APT 1036,
AFIBA
MARTIN
URBANA, IL 61801
.
217-560.2088
.
N
SUE
WHITE
16313 E CR1400N, CHARLESTON, IL 61920 217-345-4795
Y
C.
FIRST •
LAST
,
,
LAST KNOWN
PHONE
CURRENTLY
EMPLOYED
NAME
NAME
•
LAST KNOWN ADDRESS
NUMBER
WITH GW
—
do HODGE DWYERZEMAN, 3150 Roland,
Avenue, Post Office Box 5776, Springfield, IL
ROB
BIEHL.
62705
•
•
217-523-4900
Y
d.
.
FIRST
.
,
J
LAST KNOWN
TELEPHONE
CURRENTLY
EMPLOYED
NAME
LAST NAME
LAST KNOWN ADDRESS
,j
NUMBER
WITH GW
ANAS
AL-RAWI
129 E,PAODOCKDR.,SAVOY, IL 61874
1217-355-6313
7382 N. 3850 EAST RD., SAYBROOK, IL
Y
DONALD
BECKER
61770
309-475-8003
Y
STUART
BROWN
613 W. UNION, CHAMPAIGN, IL 61820
217-430-1344
Y
JESSY
BRUMFIELD I12CARPERST.,SEYMOUR,IL 61875
1120 FALCON DR., APT.#l, RANTOUL, IL
217-766-6770
Y
TIMOTHY
CORNWELL
61866
.
1517 LIBERTY ST., COVINGTON, IN
217-568-7108
Y
MICHAEL
COTTON
47932
.
•
.
.
765-793-4934
‘(
LARRY
ERICKSON
13907 E. 820 N. RD., GEORGETOWN, IL
61846
TROY.
GEISINGER
3OJAMESRD., RANTOUL, IL 61866
217-893-4327
TIMOTHY
HALEY
8888 E. 1980N. RD., OAKWOOD, IL 61858
217-354-4293
Y
MIKE
HALEY
106 BLUFF ST., POTOMAC, IL 61865
217-987-6987
217-662-8836
N
Y
6
MICHAEL
JOHNSON
2208 DALE DR., CHAMPAIGN, IL 61821
217-359-9993
V
CHRIS
KINNEY
do HOOGE DWYER ZEMAN, 3150 Roland
Avenue, Post Office Box 5776, Springfield,
IL 62705
,
217-523-4900
V
JOSEPH
LOCKHART
P.O. BOX 612, RANTOUL, IL 61866
•
217-892-2992
V
CHRIS
LONG
•
20577 N CR 2600 E, OAKLAND, IL 61943
217-346-2590
Y
V
Y
WESSAM
MOHAMMED
1009 N CUNNINGHAM, APT B, URBANA,
IL 61802
•
217-344-2397
‘KHUYEN
NGUYEN
1016 HOLLYCREST DR., CHAMPAIGN, IL
61821
. .
217-721-2701
.
JASON
PIERCE
302 S. BUCHANAN ST., DANVILLE, IL
61832
•
217-446-3177
V
BRIAN
SELWYN
P.O. BOX 293, POTOMAC; IL 61865
217-987-6120
V
CATHY
STANLEY
P.O. BOX 12, HOMER, IL 61849
217-896-2808
N
HERDIE
THOMAS
32 RICHARD DR., URBANA, IL 61801
217-344-2835
Y
ERIC
TURNER
do HODGE DWYER ZEMAN, 3150 Roland
Avenue, Post Office Box 5776, Springfield,
IL 62705
217-523-4900
V
CHARLES
TWIGG
114W. FIFTH ST., DANVILLE, IL 61832
217-446-0420
Y
10.
List of persons whoreportCd being sickened during third shift on
August 4 -5, 2004~
ANSWER:
The following persons reported to Facility safety manager Denny
Corbett “during third shift August
4-5,
2004~”that they fell ill: Afiba Martin. Flex-N-
Gate is not aware o’any other person who “reported being sickened during third shift on
August 4-5, 2004.”
11.
.
Prior to August 5, 2004, when was the floor under the plating tanks last
completely clear of sludge, debris and liquid?
ANSWER:
Since the Facility began operation, the Plating Room Floor has
never been “completely clear” of materials. This is because, ii’ nothing else, steam
condensate, drips, and dragout are continually deposited on the floor. In addition, at least
part ofthe floor is hosed down every shift. Thus, since the Facility began operation, at
least water has been located on the floor at all times:
12.
\Vhat was the quantity and identity of hazardous waste generated by the
facility during the months of July, August and September, 2004’?
ANSWER:
Flex-N-Gate objects to Interrogatory No. 12 on the grounds that it
seeks information which is irrelevant and that it is not likely to lead to discovery of
relevant or admissible information.
7
13.
Describe the odor of the bulk sulfuric acid used at the facility.
ANSWER:
See attached information for description.
14.
Who was the emergency coordinator for the facility during third shift on
August 4
-5,
2004.
ANSWER:
The Emergency Coordinator for the Facility pursuant to the
Facility’s Contingency Plan is Jackie Christensen. In addition, the Facility’s
Maintenance Group Leaders, at least one ofwhom always is present at the Facility, serve
as On-Site Emergency Coordinators in the event that Ms. Christensen is not present at the
Facility at the time of an emergency.
15.
List the personnel at the facility who had received 24-hour “hazwoper”
emergency response training as ofthird shift on August 4 -5, 2004. Why did these
persons receive this training?
ANSWER:
Flex-N-Gate objects to Interrogatory No. 15 on the grounds that it
seeks information which is irrelevant and that it is not likely to lead to discover~iof
relevant or admissible information. Occupational Health and Safety Administration
(“OSHA”) “hazwoper” training is irrelevant to the issues in this litigation, namely,
whether Flex-N-Gate violated Section 21(1) ofthe Illinois Environmental Protection Act
•
‘
(“Act”) and certain Illinois RCR.A regulations. Further, Complainant has filed a
complaint against Flex-N-Gatebelore OSH.A. It is improper for Complainant to use
discovery in this litigation to seek information regarding that OSI-IA matter.
16.
Was the 24-hour “hazwoper” training provided ift order to comply with
the preparedness requirements of 29 CFR 1910?
ANSWER:
Flex-N-Gate objects to interrogatory No. 16 on the grounds that it
seeks information which is irrelevant and that it is not likely to lead to discovery of
relevant or admissible information. OSI-IA “hazwoper” training is irrelevant to the issues
in this litigation, namely, whether Flex-N-Gate violated Section 21(f) ofthe Act and
certain Illinois RCRA regulations. Further, Compiainant has filed a complaint against
Flex-N-Gate before OSHA. It is improper for Complainant to’use discovery in this
litigation to seek information regarding that OSHA matter.
9
17.
Did the facility have an Emergency Response Plan for the facility pursuant
to 29 CFR 1910 as ofAugus.t
5,
2004? Ifthe facility did not have such a plan, why was it
not required to have one?
ANSWER:
Flex-N-Gate objects to Interrogatory No. 17 on the grOunds that it
seeks information which is irrelevant and that it is not likely to lead to discovery of
relevant or admissible information. The existence of an Emergency Response Plan under.
OSHA is irrelevant to the issues in this litigation, namely, whether Flex-N-Gate violated
Section 21(f) ofthe Act and certain Illinois RCRA regulations. Further, Complainant has
filed a complaint against Flex-N-Gate before OSHA. It is improper for Complainant to
use discovery in this litigation to seek information regarding that OSHA matter.
18.
Did the facility have meters available to measure hydrogen sulfide levels
during third shift on August 4-
5,
2004? If so, list the manufacfurer and model number,
and ASTM or other standard specifications.
ANSWER:
Flex-N-Gate objects to Interrogatory No. 18 on the grounds that it
seeks information that is ir~elevantand that it is not calculated to lead to the discovery of
relevant or admissible evidence.
Notwithstanding the foregoing, Flex-N-Gate responds to Interrogatory No. 18 as
follows:
Flex-N-Gate did have such meters available, but this is not because Flex-N-Gate
thought that a release of hydrogen sulfide could occur at the Facility. Rather, the Facility
has standard meters for confined space entry under 051-IA rules, which meters can detect
hydrogen sulfide as well as other, materials. The manufacturer’and model number for
these meters are as follows:
MicroNtax Pro by Lumidor Safety Products.
The specifications for these meters are included in the portion of the operating
instructions for the meters produced herewith.
19.
Did the f~ciIityhave respirators approved for use with hydrogen sulfide
during third shift on August 4- 5,2004? Ifso, list the manufacturer’and model number,
and ASTM or other standard spec iflcatio.ns.
.
10
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
MORTON’F. DOROTHY,
)
_
).
Complainant,
)
•)
vs.
)
•
No.PCB 05-049
•
.
)
‘FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,’
‘)
Respondent.
)
INTERROGATORIES
Complainant Morton F. Dorothy requests that respondent Flex-N-Gate
Corporation respond to the following iriterrogatories within 30 days after the date of this’
request:
0
1.
List any witnesses respondent intends to call at hearing, including name,’
address,witness. phone number,
.
and whether the witness is.to testify as an expert
2..
List any documentary or physical evidence respondent intends to introduce at
hearing.
.
•
3.
By’which provisions has respondent, prior to August 5,2004, claimed exemption
from the RCRA permit requirement for the Guardian West facility?
4.
Has respondent had any laboratory analyses performed on the liquid, sludge or
debris under the plating !fne? Provide the results ~f such analyses.
5.
Has respondent had any laboratory analyses performed on the influent into what
•
respondent refers t~as the “wastewater treatment unit” receiving “wastewater”
from the plating area? Provide the results of such analyses.
6.
By what name does respondent wish to referto the area under the plating tanks?
7.
•
By what name does respondent wish. to call the accumulated liquid in~the sump
area under the plating tanks?
.
8.,
By what name does the respondent wish to call the series of events that
Occurred during third shift on August 4 - 5, 2004 on respondent’s plating line,
which events are the subject of this enforcement action?
—
9.
Names, addresses and telephone numbers for the following persons, and
whether they are still employed by respondent.
a.
Production associates, including team leaders, working in the load/unload
area forthe plating line during third shift on August 4 - 5, 2004, and first
• 0
shift on August 5, 2004.
0
b.
Solution attendants, including team leaders, working on the plating line’
during third shift on August 4 - 5, 2004, and first shift on August 5, 2004:
c.
Safety officer working during third shift on August
4 - 5, 2004.
d.
Maintenance persons, including team
leaders, working during third shift
on August 4 - 5, 2004, and first shift on August 5, 2004.
10.
List of persons who reported being sickened during third shift on August 4 - 5,
2004.
‘.
,
0
0
0
11.
Prior to August 5, 2004, when was the floor under the plating tanks last
completely clear
of sludge, debris and liquid?
12. .What was the quantity and identity of hazardous waste generated by the facility ;
• during the months of July, August and September, 2004?
13.
bescribe the odor of the bulk sulfuric acid used at the facility.
14.
Who was the emergency coordinator for the facility during third shift on ‘August 4
~.5,2Q04.•
0
‘ ,
15.
‘
List the personnel at the facility who had received 24-hour “hazwoper”
emerger~oyresponse training ‘as of third shift on August 4 - 5, 2004. Why did
these persons receive this training?
•
0
0
16. ,
the 24-hour “hazwoper” training provided in order to comply with the
preparedness requirements of29 CFR 1910?
‘
•
17.
Did the facility have an Emergency Response Plan for the facility pursuant to 29
CFR 1910 as of August 5, 2004. If the facility did not have such a plan, why was
it not required to have one?
0
0
18.
Did the facility have meters available to measure hydrogen sulfide ‘levels during
third shift on August 4 - 5, 2004? If so, list the manufacturer and model number,
and ASTM or other standard specifications.
BEFORE THE ILL~0IS POLLUTION
CONTROL
BOARD
CHAMPAIGN COUNTY, ILLINOiS
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
0
)
PCB05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
.
.
)
)
Respondent.
‘
0
AFFIDAVIT
OF GARY
HINTON
Gary Hinton, being first duly sworn, deposes and states under oath, and if sworn
as a witness, would testify, as follows:
.
1.
1
have personal knowledge of the matters set forth in this affidavit.
2.
I am employed by Flex-N-Gate Corporation (“Flex-N-Gate”) as Human
Resources Manager at ‘the facility at issue in the above-captioned matter.
3.
The seven persons whom Flex-N-Gate identified in response to’
Complainant’s Interrogatory No. 9 without providing home address,es and telephone
numbers are currently employed by Guardian West as “Team Leaders” or“Group
Leaders”.
4.
As “Team Leaders” or “Group Leaders”, these persons are supervisors at
the facility at issue in the above-captioned matter. Theirjob duties include, but are nOt
lLmited
to,
directing employees they supervise in theirjob duties, assessing those
employees’ job performance, completing performance appraisals of those employees,
participating in administering the facility’s discipline policy with regard to facility
employees, communicating with top management at the facility regarding issues
associated with the specific departments under their supervision and with individual
facility employees, and helping to develop and implement departmental and individual
employee goals. They advIse top management at Guardian West regarding decisions
affecting ti~eir‘areas ofresponsibility at i~hefacility at issue and give opinions that form
the basis of such decisions, And, suchdecisions would not normally be made without
those persons’ advice or opinion.
‘Under penalties a ~o~i~ed’~.by’lawpursuant to’ Section 1-
109 of the
Code of
Civil Procedure, the undersigned
certifies
that
th~
statements
see
Eor~
~ e~his instrument
are
true and
correct, excep’t as to matters therein
stated
to
be
on informat.Lon
and
belief.
and
as
to
such
matters
the
“‘undersigned
c’erti~fies~E”afóresaid
that he
verily believes
the,
same to be
true.,
FURTHER AFFIANT SAYETH NOT.
0
Gary Hinton.
Subscribed and
sw
o
before
“
0’
m~s~Jdayo~~
2005
____
Notary Public
“
“
“‘.
. 0
~
,;
,
0
C’~flttU55~
E~x~tfO6I~UO7
GWST OO3IFiI/AffIdav~tofGary Hinton Response to MTC
-
Ititerrogs
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Disciplinary and Disability Information as of May 4, 2005 at 9:00:00 AM:
Full Licensed
Name:
Morton Freer Dorothy
Full Former
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00
‘
-
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Admission as
Lawyer
by Illinois
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November 3, 1978
Registered
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Address:
804 East Main
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5/4/2005
RECE~VEO
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~jp~y
112005
CHAMPAIGN COUNTY, ILLiNOIS
~~~°~ROTHY,
)
Complainant,
)
)
v.
)
PCB
05-49
)
FLEX-N-GATE CORPORATION,
an Illinois corporation,
)
)
Respondent.
)
RESPONSE
TO COMPLAINANT’S MOTION TO COMPEL
RESPONDENT
TO
ADMIT
THE TRUTH OF
CERTAIN
FACTS
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYERZEMAN, and for its Responseto
Complainant’s Motion to Compel Respondent to Admit the Truth ofCertain Facts
(“Motion to Compel”), states as follows:
I.
INTRODUCTION
1.
On or about March 19, 2005, Complainant served his Request to Admit
the Truth ofCertain Facts (“Request to Admit”) on Flex-N-Gate. Affidavit ofThomas G.
Safley (“Safley Aff.”) attached hereto as Exhibit A, at ¶3.
2.
On or about April 14, 2005, Flex-N-Gate mailed its Response to
Complainant’s Request to Admit (“Response to Request to Admit”) to Complainant,
relevant portions ofwhich Response are attached hereto as Exhibit B. Safley Aff., at ¶4.
3.
Complainant has filedhis Motion to Compel Flex-N-Gate to admit or
deny certain Requests to Admit to which Flex-N-Gate objected in its Response to
Request to Admit.
$~
Motion to Compel.
4.
For the reasons stated below, the Hearing Officer should deny
• Complainant’s Motion to Compel.
..
II.
THE
HEARING OFFICER
MUST
DISREGARD
PORTIONS OF
COMPLAINANT’S MOTION TO COMPEL.
5.
In paragraph two ofhis Motion to Compel, Complainant makes certain
allegations offact.
$~
Motion to Compel, ¶2.
•
6.
Complainant does not support these allegations offact with an affidavit or
otherwise. See id.
7.
“Facts asserted in motions filed in cases before the Board that are not of
record in the proceeding must be supported by oath, affidavit, or certification in
accordance with Section 1-109 ofthe Code of Civil Procedure.” 35 Iii. Admin. Code
§
101.504.
8.
Because Complainant does not support these allegations offact as required
by Section 101.504, the Hearing Officer must disregard these allegations in ruling on
Complainant’s Motion to Compel.
III.
THE
HEARING
OFFICER SHOULD DENY COMPLAINANT’S MOTION
TO COMPEL.
.
0
9.
Complainant’s Requests to Admit Nos. 9 and 10 state as follows:
Complainant Morton F. Dorothy requests that respondent Flex-N-Gate
Corporation admit the truth ofthe following statements...:
***
9.
Complainant received 24-hour “hazwoper” training from
respondent.
10.
Afiba Martin received 24-hour “hazwoper” training from
respondent.
2
Complainant’s Request to Admit, a copy ofwhich is attached hereto as Exhibit C. Safley
Aff., at~J5.
10.
Flex-N-Gate responded identically in substance to these Requests to
Admit, stating as follows:
Flex-N-Gate objects to Request to Admit No. 9 or 10 on the
grounds that (1) the fact which it asks Flex-N-Gate toadmit is
irrelevant, and (2) Complainant has filed a complaint against Flex-
N-Gate before the Occupational Safety and HealthAdministration
(“OSHA”), and it is improper for Complainant to use discovery in
this litigation to seek information regarding that OSHA matter.
Exhibit B, at
¶119,
10.
11.
As Complainant notes, under the Board’s rules, “all relevant information
and information calculated to lead to relevant information is discoverable.” Motion to
Compel, ¶3 (citing 35 Ill. Adniin. Code
§
101.616(a)).
12.
However, as Flex-N-Gate stated in response to Requests to Admit Nos. 9
and 10, the question ofwhether Complainant and another person received “hazwoper”
training from Flex-N-Gate is irrelevant to Complainant’s claims in this lawsuit, and is not
“calculated to lead to relevant information.”
13.
As the Hearing Officer is aware, Complainant’s Complaint alleges that
Flex-N-Gate has violated Section 21(f) ofthe illinois Environmental Protection Act
(“Act”), and associated regulations, by allegedly improperly managing hazardous waste
without a, Resource Conservation and RecoveryAct (“RCRA”) permit, and by allegedly
failing to take certain actions relating to the RCRA contingency plan for the facility at
issue in this case. ~ Complaint.
3
14.
In support of his Motion to Compel, Complainant argues:
Flex-N-Gate appears to have prepared a single.”Emergency Response
under OSHA regulations and Contingency Plan under RCRA” to meet
both requirements, and, hjaving done this.
. .
respondent cannot now
complain that the “OSHA issues” are “irrelevant” and not “calculated to
lead to the discovery ofrelevant information.”...
.
Requests 9 and 19
sic, i.e., 10 askrespondent to admit that complainant and Afiba Martin
received 24-hour “hazwoper” training from respondent. Such trained
individuals have a role in respondent’s Emergency Response and
Contingency Plan.
Motion to Compel, ¶116-7.
15.
However, this argument does not explain why Complainant feels that the
question ofwhether or not he and another person received certain training under
Occupational Safety and Health Administration (“OSRA”) rules is relevant to whether
Flex-N-Gate violated the Act or the Board’s RCRA regulations, or how the answer to this
question will leadto relevant evidence. That is, Complainant has not explained how his
allegation that “such trained individuals have a role in respondent’s Emergency
Response and Contingency Plan” makes his allegations ofRCRA violations against Flex-
N-Gate’ any more or less true.
16.
Even ifthe Facility’s RCRA Contingency Plan couldhave some
applicability under OSHA rules, that does not mean that all OSHA matters automatically
become relevant in a RCRA matter; thus, Flex-N-Gate disagrees with Complainant’s
argument that Flex-N-Gate may not argue that certain “OSHA issues’ are ‘irrelevant’
and not ‘calculated to lead to the discovery ofrelevant information.”
•
17.
Flex-N-Gate has not objected to every discovery request made by
Complainant that relates in anyway to OSHA. See, e.g., Complainant’s Request for
Production ofDocuments, a copy ofwhich is attached hereto as Exhibit D, Nos. 12 and
4
14 (requesting copies ofcommunications between Flex-N-Gate and OSHA, and “OSHA
notices,” regarding “the incident” at issue in this matter); Flex-N-Gate’s Response to that
Request for Production, relevant portions ofwhich are attached hereto as Exhibit E
(providing the documents requested). However, again, even if the Facility’s RCRA
Contingency Plan has some OSHA applicability, that does not mean that all OSHA issues
automatically are relevant in this case, and Complainant has not explained how the
question ofwhether ornot he and another personreceived certain OSHA training could
be relevant or could lead to relevant information.
18.
Further, as Flex-N-Gate notes in response to Requests to Admit Nos. 9 and
10, Complainant has filed a complaint against Flex-N-Gate before OSHA, and it is
improper for Complainant to use discovery in this litigation to seek information regarding
that OSHA matter.
19.
Tn response, Complainant argues that he “is not a party to the OSHA
proceeding” and “has not been allowed to” participate in that proceeding, and further,
that “although the admission complainant seeks might be relevant in the OSHA
proceeding, respondent has cited no rule limiting the scope ofdiscovery in one
proceeding to items that are relevant only to that proceeding and none other.” Motion to
Compel at ¶112,
5.
(Emphasis added.)
20.
As noted above, the Hearing Officer must disregard Complainant’s
allegations regarding his status in the OSHA proceeding because Complainant does not
support those allegations as the Board’s rules require.
21.
Further, Complainant misunderstands Flex-N-Gate’s argument. Flex-N-
Gate does not argue that relevant information is’ not discoverable in a Board action if that
5
information also might be relevant in another proceeding. What Flex-N-Gate argues is
(1) that information that is irrelevant is not discoverable in a Board proceeding, and (2)
that where information is irrelevant in a Board proceeding, a party cannot use discovery
in the Board proceeding to gain that information for use in some other forum.
22.
Flex-N-Gate’s position is that it is axiomatic that when Section 101.616(a)
ofthe Board’s rules provides that “all relevant information and information calculated
to lead to relevant information is discoverable,” it refers to information that is relevant in
•
a Board proceeding, and that the Board did not intend its discovery rules to be used to
discover information that is irrelevant in a Board proceeding so that such information
could be used in some other forum.
•
23.
Likewise, Flex-N-Gate submits that it is axiomatic th~twhen Section
101.618(d) provides that “a party may serve a written request for admissions ofthe
truth ofspecific statements offact,” it refers to “specific statements offact” that are
relevant in a Board proceeding, and that the Board did not intend this rule to be used to
force parties to admit or deny statements offact that are irrelevant in a Board proceeding
so that the admission or denial can be used in some other forum.
24.
Again, Complainant has not supported his allegations offact.
Complainant has admitted, however, that “the incident alleged in the complaint... is
the subject of OSHA Complaint NO. 204985014.” Complainant’s Motion to Accept for
Hearing and forExpedited Discovery, at ¶8. And, Complainant has stated that the
“admission he seeks might be relevant in the OSHA proceeding.” Motion to Compel, at
¶5.
6
25.
Further, regardless ofComplainant’s ability to participate in an OSHA
proceeding, Flex-N-Gate is aware ofnothing that would prevent Complainant from
• making additional complaints to OSITA regarding Flex-N-Gate, potentially based on
admissions or denials which Complainant states “might be relevant” to OSHA.
26.
Thus, Flex-N-Gate’s point is that (1) the information Complainant seeks is
irrelevant in this matter; (2) Complainant asserts that this information might be relevant
in another forum; and (3) Complainant should not be able to use the Board’s discovery
rules to seek information that is irrelevant here but potentially could be relevant in the
other forum.
IV.
CONCLUSION
WHEREFORE, Respondent, FLEX-N-GATE CORPORATION, respectfully
prays that the Hearing Officer deny Complainant’s Motion to Compel Respondent to
Admit the Truth of Certain Facts and grant FLEX-N-GATE CORPORATION such other
relief as the Hearing Officer deems just.
Respectfullysubmitted,
FLEX-N-GATE CORPORATION
Respondent,’
Dated: May 10, 2005
By:______________________
0
ofIts ‘t’t
ri~ieys
~~__)
Thomas G. Safley
HOIDGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:003/Fil/Response to Motion to Compel
-
RFA
7
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 ofthe matters set forth in this affidavit.
2.
I am an attorney duly licensed in the State ofIllinois, and have been
retained by respondent Flex-N-Gate Corporation (“Flex-N-Gate”) to represent it in this
matter.
3.
On or about March 19, 2005, Complainant served his Request to Admit
the Truthof Certain Facts (“Request to Admit”) on Flex-N-Gate.
4.
On or about April 14, 2005, Flex-N-Gate mailed its Response to
Complainant’s Request to Admit to Complainant, relevantportions ofwhich Response
are attached to Flex-N-Gate’s Responseto Complainant’s Motion to Compel Respondent
to Admit the Truth ofCertain Facts (“Response to Motion to Compel”) as Exhibit B.
5.
A copy ofComplainant’s Request to Admit is attached to Flex-N-Gate’s
Response to Motion to Compel as Exhibit C.
6.
A copy ofComplainant’s Request for Production ofDocuments is
attached to Flex-N-Gate’s Response to Motion to Compel as Exhibit D.
7.
A copy ofFlex-N-Gate’s Response to Complainant’s Request for
• Production ofDocuments is attached to Flex-N-Gate’s Response to Motion to Compel as
Exhibit E.
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 stated
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.
Subscribed and sworn to before
me this )O~dayof
‘f’~y~
,2005.
0
_________
•
rtU~at~nOIS
•
~thissionE~.O7/lV2OO~J
GWST:003/Fil/Affidavit ofThomas Safley
-
Response to MTC
-
RFA
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB No. 05-49
)
(Enforcement)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
•
‘•
FLEX-N-GATE CORPORATION’S RESPONSE TO
COMPLAINANT’S REQUEST TO ADMIT THE TRUTH OF CERTAIN FACTS
COMES NOW Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
• and for its’ Response to Complainant’s Request to Admit the Truth of Certain Facts
(“Request to Admit”), states as follows:
GENERAL OBJECTION
Flex-N-Gate objects to Complainant’s Request to Admit on the grounds that
Complainant did not comply with Section 101.618(c) ofthe Illinois Pollution Control
Board’s(”Board”) procedural rules, 35111. Admin. Code
§
101.618(c), in serving its
Request to Admit.
•
•
RESPONSES TOREOUESTS TO ADMIT
1.
Flex-N-Gate objects to Request to Admit No. 1 on the grounds that it asks
Flex-N-Gate to admit a conclusion oflaw, not a statement of fact. Section 101.618(d) of
the Board’s procedural rules only authorizes requests for admission “of’the truth of
specific statements offact.”
.5
Ill. Admin. Code
§
101.618(d). (Emphasis added.) The
Illinois Supreme Court has held that “requests to admit may not include legal
that it is “a large quantity generator of hazardous waste.” Flex-N-Gate admits that it
treats some ofits hazardous waste “on-site in tanks,” but denies that it treats all ofits
hazardous waste “on-site in tanks.” Flex-N-Gate admits that it does not have “a RCRA
permit or interim status.” To the extent that Request to Admit No. 6 makes any other
• statements offact, Flex-N-Gate denies the same.
7.,
Flex-N-Gate denies the truth ofthe statement in paragraph seven for the
same reasons stated in response to Requests to Admit No.
5
and No. 6 above.
8.’
Flex-N-Gate admits that it is “a large quantity generator ofhazardous
waste.” Flex-N-Gate admits that it treats some ofits hazardous waste “on-site in tanks,”
but denies that it treats all ofits hazardous waste “on-site in tanks.” Flex-N-Gate admits
that it does not have “a RCRA permit or interim status.” To the extent that Request to
Admit No. 8 makes any other statements offact, Flex-N-Gate denies the same.
9.
Flex-N-Gate objects to Request to Admit No. 9 on thegrounds that, (1) the
fact which it asks Flex-N-Gate to admit is irrelevant, and (2) Complainant has filed a
complaint against Flex-N-Gate before the Occupational Safety and Health Administration
(“OSHA”), and it is improper for Complainant to use discovery in this litigation to seek
information regarding that OSHA matter.
10.
Flex-N-Gate objects to Request to Admit No; lOon the grounds’that(l)
the fact which it asks Flex-N-Gate to admit is irrelevant, and (2) Complainant has filed a
complaint against Flex-N-Gate before OSHA, and it is improper for Complainant to use
discovery in this litigation to seek information regarding that OSHA matter.
11.
Flex-N-Gate admits the 1ruth ofthe statement in paragraph eleven, but
denies that it had any obligation to make such notification.
‘
3
I
*
Respectfully submitted, and, as to
objections,
FLEX-N-GATE CORPORATION,
•
Date: April 14, 2005
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
•
GWST:003/FiVResponse to Request to Admit Certain Facts
Respondent,
10
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
MORTON F. DOROTHY,
)
)
Complainant,
‘
•
)
)
vs.
,
‘
)
•
No.PCB05-049
)
FLEX-N-GATE CORPORATION,
)
an’ Illinois Corporation,
‘
), ‘
)
Respondent.
‘ ‘
‘ ‘
)
•
‘
REQUEST TO ADMIT THE TRUTH OF CERTAIN’FACTS
Complainant Morton F; Dorothy requests that respondent Flex-N-Gate
• Corporation
admit the truth of the following statements within 30 days after the date of
this request:
1.
The complaint in this case is a citizen,s complaint filed pursuant tO Section 31 of
the Environmental Protection Act (“Act”) (415 ILCS 5/31) and 35 Ill. Adm. Code
103.200.
‘
‘
‘
‘
2.
Complainant is an individual ‘residing in Champaign Counts’,’ Illinois.
•
3.
Complainant’s identity and residence’ was known to the respondent at the time
the answer was filed.
4.
Complainant’s identity and residence was known to the firm of Hodge Dwyer
Zeman,at the time the answerwas filed.
,
‘
5.
Respondent has in the past claimed that the facility operates pursuant to 35 IlL
Adm. Code 722.134.
6.’
Respondent has in the past claimed that the facility operates pursuant to 35 Ill.
•
Adm. Code 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.
• ,
7.
Respondent has in the past stated to the Illinois Environmental Protection’
Agency that the facility operates pursuant to 35 III. Adm. Code 722.134(a).’
8.
Respondent is a large quantity generator of hazardous waste which is treated
on-site in tanks, without a RCRA permit or interim status.
9.
Complainant received 24-hour “hazwoper” training from respondent.
10.
Afiba Martin received 24-hour “hazwoper” training from respondent.
11.
Respondent did not notify local agencies with designated response roles in the
facility’s Emergency Response and Contingency’PIan concerning the incident
during third shift on August 4-5, 2004.
12.
Respondent did not identify the, amount and areal extent of the release during or
following the incident during third shift on August 4-5, 2004.
13.
Respondent did not assess possible hazards to human health and the
environment during or following the incident during third shift on August 4-5,
2004.
.‘
‘
•
14.
Respondent did not report to the Agency within fifteen days the incident during
• ‘
third shift on August 4-5, 2004.
‘, ,
‘
15.
The facility’s Emergency Response and Contingency Plan in effect on August 4-
5, 2004, did, not specifically address the possibility of an acid spill resulting in a
•
‘
hydrogen sulfide release.
16.
The facility does not have an Emergency. Response Plan for the facility pursuant
to 29 CFR 1910 as of August 6,, 2004.
‘
17.
Respondent is not required to have Emergency Response Plan for the facility
•
pursuant to .29 CFR 1910.because it has prepared a Contingency Plan pursuant
to 35 Ill.’Adm. Code 725.Subpart D.
18.’ 35 III. Adm. Code 725.Subpart D is the Illinois equivalent of 40 CFR 265; Subpart
D.
,
19. ,Respondent prepared• its “Emergency Response and Contingency Plan”
• pursuant’to 35 Ill. Adm. Code 725.Subpart Din order to comply with the
conditions of 35 Ill. Adm. Code 722.134.
‘
20.
Tony Rice stated to complainant, or about August 13, 2004, during the course of
a discussion of the August 4-5 incidOnt, that the ruptured pipe “emptied the day,
tank”.
.
21.
Tony Rice testified under oath on October 26, 2004, that the acid spill was from
the fill pipe to Tank 8 and’that he was told that the spill was concentrated sulfuric
acid.
‘
‘
‘
Morton F. Dorothy
804 East Main
~
‘
Urbana IL61802
¶~~TT~,-~
114Y
9
.
217/384-1010
Morton F. Dorothy, Complainant
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD’
CHAMPAIGN COUNTY, ILLINOIS
MORTON F. DOROTHY,
‘
)
)
Complainant,
)
)
vs.
‘
)
No. PCB05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
‘
)
REQUEST FOR PRODUCTION OF DOCUMENTS
Complainant Morton F. Dorothy requests that respondent Flex-N-Gate
Corporation produce the following documents within 30 days after the date of this
request:
1.,
The Emergency Response and Contingency Plan for the facility as of August 5,
2004.
‘
‘
‘
2.
Any amended Emergency Response and Contingency Plan for the facility since
•
August5,2004.
•
.
‘
.
‘
3.
The Emergency Response Plan for the facility pursuant to 29 CFR 1910 as of
•
August 5, 2004.
‘
•
4.
Any amended Emergency Response Plan for the’ facility pursuant to 29 CFR
1910 since August 5, 2004.
‘
‘
5.
‘ The operating log for the plating line, including the dates August 4 through
August 8, 2004. Although the entire volume of the log must be produced for
in,spection, complainant seeks copies of only the indicated dates..
6.
Plating fab notebook, including’ the’ dates August 4 through August 8, 2004.
Although the entire volume of the log must be produced for inspection,
‘
complainant seeks copies of only the indicated dates.
‘
‘
‘
‘ ‘
7.
Maintenance log and maintenance work orders for the plating line for August 5
through August 8, 2004.
‘ •
‘
8.
Any Written accounts of the incident on third sL
4-5, 2004, produced by
or for respondent.,
-
‘I
9.
Copies of hazardous waste manifests initiated by the facility during July, August
and September, 2004.
10.
‘Material Safety Data Sheets forthe following:
a.
Bulk sulfuric acid used by the facility in August, 2004.
b.
Tank20addItive”TA”
‘c. ‘ Tank 20 additive HSA-90 or “High Sulfur Additive-90”.
11.
Copies of all correspondence with the Illinois Environmental Protection Agency
concerning the incident alleged in the complaint.
‘12.
Copies of all correspondence with the Occupational Safety and Health
Administration (OSHA) concerning the incident alleged in the complaint.
13.
Copies of all correspondence with the Illinois Environmental Protection,Agency
concerning the RCRA permit status or claims of exemption from the RCRA
permit requirement.
14.
Copies of all OSHA notices posted in connection with the incident alleged in the
complaint.
‘ ‘
‘
15.
Account of the incident that is the subject ofthe complaint delivered to Tony Rice
on or about August, 9, 2004.
16.
The “Hazwoper 24-hour” training certificate for complainant.
17.
Training notebook and materials used by respondent for “Hazwoper 24-hour”
training prior to theincident alleged in the, complaint.
18.
Copies of the “threat letters that if we did not hire this employee back he would
make it difficult for Guardian West by calling local and federal agencies”,
referenced in a fax sent by Denny Corbett to Peggy A. Zweber on September 14,
• 2004.
,
‘
‘ ‘
‘
Morton F; Dorothy
•
‘
,
,
804EastMain
Urbana IL 61802
F
‘
217/384-1010
Morton F. Dorothy, Complainant
-I)
•
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
‘
)
)
Complainant,
)
)
V.
)
PCBNo.05-49
)
‘
(Enforcement)
FLEX-N-GATE CORPORATION,
an Illinois corporation,
‘
)
)
Respondent.
•
‘
)
FLEX-N-GATE CORPORATION’S
RESPONSE TO
COMPLAINANT’S REQUEST FOR
PRODUCTION OF
DOCUMENTS
NOW COMES Róspondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
and for its Response to Complainant’s Request for Production ofDocuments, states as
follows:
1:
A copy ofthe document re,quested is produced herewith,
2.
A copy ofthe document requested is produced herewith.
3.
Flex-N-Gate objects tO Request for Production No. 3 on the grounds that,
(1) the document which Request No. 3 seeks is irrelevant, as it relates only to
-
Occupational Safety and Health Administration (“OSHA”) ‘issues, and (2) Complainant
has filed a complaint against Flex-N-Gate before OSHA, and it is improper for
Complainant to use discovery in this litigation to seek information regarding that OSHA
matter.
4.
Flex-N-Gate objects to, Request for Production No. 4 on the grounds that
(1) the document which Request No. 4 seeks is irrelevant, as it relates only to OSHA
issues, and (2) Complainant has filed a complaint against Flex-N-Gate before OSHA, and
it is improper for Complainant to use discovery in this litigation to seek information
regarding that OSHA matter.
9.
Copies of the documents requested are produced herewith.
10.
Copies ofthe documents requested are produced herewith.
11.
Flex-N-Gate has no documents responsive to Request for Production No.
11..
12.
Copies ofthe documents requested are produced herewith.
13.
Copies ofthe documents requested are produced herewith~
14.
•
Copies of the documents requested are produced herewith.
15.
Flex-N-Gate does not know to what’document Request No. 15 refers. If
Complainant .provides further informatiOn regarding this document (e.g., its authOr), Flex-
N-Gate will supplement its response to this Request as appropriate.
16.
Flex-N-Gate objects to Request for Production No. 16 on the grounds that
(1) the document which Request No. 16 seeks is irrelevant, as it relates only to OSHA
issues, and (2) Complainant has filed a complaint against Flex-N-Gate before OSHA, and’
it is improper for Complainant to use discovery in this litigation to seek information
regarding that OSHA matter.
17.
‘
Flex-N-Gate objects to Request for Production, No. 17 on the grounds that
(1) the document which Request No. 17 seeks is irrelevant, as it relates only. to OSHA
issues; and (2) Complainant has filed
a
complaint against Flex-N-Gate before OSHA, and
it is improper for Complainant to use discovery in this litigation to seek information
regarding that OSHA matter.
‘.
•
18.
Flex-N-Gate objects to Request forProduction No. 18 on the grounds that
(1) the document which Request No. 18 seeks is irrelevant, as it relates only to OSHA
issues, and (2) Complainant has filed a complaint againstFlex-N-Gate before OSHA, and
3
•
RECEIVED
•
CLERK’S OFFICE
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLiNOIS
MAY 112005
MORTON F. DOROTHY,
)
PollutionSTATE
OFControlILLINOISBoard
Complainant,
)
)
v.
“
)
PCB05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
•
)
)
Respondent.
)
RESPONSE
TO
COMPLAINANT’S
MOTION TO COMPEL PRODUCTION OF DOCUMENTS
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and forits Response to
Complainant’s Motion to Compel Production ofDocuments (“Motion to Compel”), states
as follows:
I.
INTRODUCTION
1.
On or about March 19, 2005, Complainant mailed his Request for
Production ofDocuments (“Request forProduction”) to Flex-N-Gate. Affidavit of
Thomas G. Safley (“Safley Aff.”) attached hereto as Exhibit A, at ¶3.
2.
On or about April 14, 2005, Flex-N-Gate mailed its Response to
Complainant’s Request forProduction to Complainant, a copy ofwhich Response is
attached hereto as Exhibit B. Safley Aff., at ¶4.
3.
Complainant has filed his Motion to Compel Flex-N-Gate to provide
additional responses to certain Requests for Production. ~ Motion to Compel.
4.
For the reasons stated below, the Hearing Officer should deny
Complainant’s Motion to Compel.
II.
THE
HEARING
OFFICER MUST
DISREGARD
PORTIONS OF
COMPLAINANT’S
MOTION TO COMPEL.
A.
The Hearing Officer must Disregard Complainant’s Unsupported
Allegations of Fact.
In certain paragraphs of his Motion to Compel, Complainant makes
offact, specifically:
paragraph 2— all statements;
paragraph 6
—
all statements;
paragraph 7— second, third, fourth and fifth sentences;
•
paragraph 9— first four sentences; and,
•
paragraph 10— second, third, fourth and fifth sentences. Paragraph 10 is
identical to paragraph 7.
See Motion to Compel, ¶112, 6, 7, 9, and 10.
6.
Complainant does not support these allegations offact with an affidavit or
otherwise.
7.
See id.
“Facts asserted in motions filed in cases before the Board that are not of
record in the proceeding must be supported by oath, affidavit, or certification in
accordance with Section 1-109 ofthe Code ofCivil Procedure.” 35 Ill. Admin. Code
§
101.504.
8.
Because Complainant does not support these allegations offact as required
by Section 101.504, the Hearing Officer must disregard these allegations in ruling on
Complainant’s Motion to Compel.
5.
allegations
•
S
•
2
B.
The Hearing Officer must Disregard Complainant’s Conclusory,
Scandalous and Impertinent Allegations in Paragraph Nine, of His
Motion to Compel.
9.
Further, the Hearing Officer must disregard Complainant’s conclusory,
scandalous and impertinent allegations in paragraph nine ofhis Motion to Compel on
other grounds.
10.
Paragraph nine, without any support, alleges that an employee ofFlex-N-
Gate committed criminal acts, stating:’ “Complainant is aware that Denny Corbett has
made several false statements, including statements made in writing to OSHA in its
‘investigation ofthis incident.” ~ Motion to Compel, ¶9.
11.
First, as discussed above, the Hearing Officer must disregard this
allegation because Complainant did not support it as required by the Illinois Pollution
Control Board’s (“Board”) Rules.
12.
Second, the’ Hearing Officer must disregard this allegation because it is
conclusory, and therefore could not be relied’upon even if it was supported by affidavit.
The Board has long held that it “can not grant relief.
. .
on the basis ofa mere
conclusion” in an affidavit. EPA v. Rhodes, PCB No. 71-53, 1972 Ill. ENV LEXIS 169,
at *1 (I1l.Pol.Confrol.Bd. Jan. 24, 1972). And, in recent cases, the Board has stricken
conclusory allegations from affidavits filed with it. See, e.g., 2222 Elston LLC v. Purex
Indus., Inc., et al., PCB No. 03-55, 2003 Iii. EN’V LEXIS 359, at **17..19
(ll1.Pol.Control.Bd. June 19, 2003) (striking an affidavit that was “conclusory”); Heiser v.
Office ofthe State Fire Marshal, PCB No. 94-377, 1995 111. ENY LEXIS
895,
at *9
(fll.Pol.Control.Bd. Sept. 21, 1995) (striking from an affidavit a statement that was “self-
serving and conclusory.”)
3
13.
Third, the Hearing Officer must disregard this unsupported allegation of
criminal behavior because it is scandalous and impertinent. ~ Benitez, et al v. KFC
National Mgmt. Co., 714 N.E.2d 1002, 1037 (2d Dist. 1999) (fmding that “plaintiffs’
allegations in their second amended complaint that employee-defendants sold tainted
foodto customers and spied on female customers were ‘scandalous and impertinent” and
that it was proper to strike those allegations). Accord, Biggs v. Cunimins, 158 N.E.2d 58,
59 (Iii. 1959) (striking the appellant’s brief as containing “scandalous and impertinent
material,” where the appellant accused a judge offalsifying a court record, the Attorney
General ofwithholding evidence, the Attorney General’s assistant of“altering the
record,” and an assistant Attorney General ofmaking “false and untrue statements to the
court.”)
14.
The Hearing Officer must disregard these improper statements, which,
with no supporting facts whatsoever, conclude the existence ofintentional deceit and
criminal activity by an employee ofFlex-N-Gate.
III.
THE HEARING OFFICER SHOULD DENY COMPLAINANT’S MOTION
TO COMPEL.’
‘
‘
A.
The Hearing Officer should Deny Complainant’s Motion to Compel
Responses to Requests Nos. 3, 4, 16, 17 and 18.
15.
Complainant first moves the Hearing Officer to compel Flex-N-Gate to
produce documents in response to his Requests Nos. 3, 4, 16, 17 and 18.
16.
These Requests seek production of:
3.
The EmergencyResponse Plan for the facilitypursuant to
29 CFR 1910 as ofAugust
5,
2004.
4.
Any amended Emergency Response Plan for the facility
pursuant to 29 CFR 1910 since August
5,
2004.
4
*•*
*
16.
The “Hazwoper 24-hour” training certificate for
complainant.
17.
Training notebook and materials used by respondent for
“Hazwoper 24-hour” training prior to the incident alleged in the
complaint.
18.
Copies of the “threat letters that if we did not hire this
employee back he would make it difficult for Guardian West by calling
local and federal agencies”, referenced in a fax sent by Denny Corbett to
Peggy A Zweber on September 14, 2004.
Complainant’s Requests for Production, attached hereto as Exhibit C.
17.
Flex-N-Gate objected to each ofthese Requests forProduction:
on the grounds that (1) the document which Request No. 3 seeks is
irrelevant, as it relates only to OSHA issues, and (2) Complainant has filed
a complaint against Flex-N-Gate before OSHA, and it is improper for
Complainant to use discovery in this litigation to seek information
regarding that OSHA matter.
See Exhibit B.
18.
Tn paragraphs two through five ofhis Motion to Compel responses to these
Requests, Complainant first makes the same arguments he made in his Motion to Compel
Respondent to Admit the Truth of Certain Facts. See Complainant’s Motion to Compel
Respondent to Admit the Truth ofCertain Facts.
19.
In response, Flex-N-Gate hereby incorporates its Response to
Complainant’s Motion to Compel Respondent to Admit the Truth ofCertain Facts.
20.
Complainant next makes certain unsupported allegations offact in
paragraph six ofhis Motion to Compel. As discussed above, however, the Hearing
Officer must disregard these unsupported allegations offact, and therefore must deny
5
Complainant’s Motion to Compel to the extent that it relies on these unsupported
allegations.
21.
Further, even if the HearingOfficer could rely on these unsupported
allegations, for the reasons stated in Flex-N-Gate’s Response to Complainant’s Motion to
Compel Respondent to Admit the Truth ofCertain Facts, Flex-N-Gate disagrees that any
OSHA training materials are relevant to, or could leadto information that is relevant to,
this lawsuit.
22.
Finally, Complainant argues that the document(s) he seeks in Request No.
18 are relevantto the issue ofthe credibility ofFlex-N-Gate employee Denny Corbett,
whom Complainant asserts “it is reasonable to expect.
. .
will be called as a witness at
the hearing.” As discussed above, however, Complainant bases this relevance argument
solely on unsupported, conclusory statements offact, which improperly allege criminal
conduct by Mr. Corbett. In addition to the fact that the Board’s rules prohibit the Hearing
Officer from relying on this unverified “support,” this argument is wholly insufficientto
justify compelling Flex-N-Gate to provide documents which (1) relate solely to the issue
ofcredibility of a witness at a hearing that, after dispositive motions, may not even take
place, (2) when there is no admissible evidence that such witness’s credibility is at issue,
(3) where Complainant does not state that he intends to call this witness if a hearing takes
place, only that “it is reasonable to expect” that this witness “will be called.”
23.
Wherefore, forthe reasons stated above, the Hearing Officer should deny
Complainant’s Motion to Compel as to Requests Nos. 3, 4, 16, 17 and 18.
6
B.
The Hearing Officer
Also
Should Deny Complainant’s Motion to
Compel an Additional Response to Request No. 7.
24.
The Hearing Officer also should deny Complainant’s Motion to Compel
Flex-N-Gate to respond further to Request No. 7.
25.
Complainant’s Request for Production No. 7 sought production of
“maintenance log and maintenance work orders forthe plating line for August
5
through August 8, 2004.” See Exhibit C, at ¶7.
26.
Flex-N-Gate responded to this Request as follows:
The “maintenance work orders for the plating line” requested in Request
No. 7 are produced herewith. Flex-N-Gate does not know what
Complainant means by the term “maintenance log..
.
for the plating line
forAugust
5
through August 8, 2004,” so Flex-N-Gate, in response to
Request No.
5
above, has produced all documents in its possession which
it thinks Complainant maybe requesting by this tenn. Flex-N-Gate has no
other documents relating in any way to the maintenance ofthe plating line
between August
5
and August 8, 2004.
Exhibit B, at ¶7.
27.
Tn his Motion to Compel, Complainant argues:
The first work order produced was initiated by LarryKelly at 7:28 on 08-
05-04. However, Afiba Martin’s statement, produced elsewhere, refers to
a work order he initiated several hours earlier. Thatwork order has not
been produced. Nor do any other work orders appear for third shift of
August 4-5, 2004, during which shift the incident happened.
Motion to Compel, at ¶117 and 10.
28.
First, the Hearing Officer must deny this Motion to Compel because it
relies solely on unsupported allegations offact, in violation ofthe Board’s rules. ~
discussion above.
29.
Second, the Hearing Officer must deny this Motion to Compel because
Flex-N-Gate does not have any further documents responsive to this Request for
7
Production. Flex-N-Gate indicated this in response to Request to Produce No. 7, as noted
above. See Exhibit B. Further, in light of Complainant’s Motion to Compel, Flex-N-
Gate has searched again and has been unable to locate any work order initiated by Afiba
Martin for the plating line, or any other work orders “for the third shift ofAugust 4-5,
2004.” Affidavit ofJackie Christensen, attached hereto as Exhibit D,
¶3~1
Again, Flex-
N-Gate has produced all “maintenance work orders for the plating line forAugust
5
through August 8, 2004.”
,
¶4.
30.
Accordingly, as Flex-N-Gate has no additional documents responsive to
Request No. 7, the Hearing Officer must deny Complainant’s Motion to Compel as to this
Request as well.
C.
The Hearing Officer Also Should Deny Complainant’s Motion to
Compel an Additional Response to Request No. 15.
31.
Finally, Complainant moves the Hearing Officer to compel a further
response to RequestNo. 15.
‘32.
RequestNo. 15 sought production ofan “ajccount ofthe incident that is
the subject ofthe complaint delivered to Tony Rice on or about August 9, 2004.” Exhibit
c,1115.
33.
Tn response to this Request, Flex-N-Gate responded:
Flex-N-Gate does not know to what document Request No. 15 refers. If
Complainant provides further information regarding this document (e.g.,
its author), Flex-N-Gate will supplement its response to this Request as
appropriate.
•
Exhibit B, ¶15.
‘
‘
‘The undersigned will submit the original of this Affidavit and the Affidavits of Anthony Rice and Gary
Hinton cited below to the Board when they are received.
8
34.
In his Motion to Compel, Complainant states: “The author of the
document at issue was the complainant, who hand-delivered a written account of
the incident to Tony Rice, Plating Manager, on or about August 9, 2004.” Motion
to Compel, ¶8.
35.
First, the Hearing Officer must deny this Motion to Compel because it
relies solely on unsupported allegations offact, in violation ofthe Board’s rules. ~
discussion above.
36.
Second, the Hearing Officer must deny this Motion to Compel because
Flex-N-Gate does not have any documents responsive to this Request In light of
Complainant’s Motion to Compel, Flex-N-Gate generally, and Mr. Rice specifically,
reviewed their files, and were unable to locate any document provided by Complainant to
Mr. Rice on August 9, 2004, or on any other date, regarding “the incident.” Affidavit of
Gary Hinton, attached hereto as Exhibit E, at ¶3; Affidavit ofTony Rice (“Rice Aff.”),
attached hereto as Exhibit F, at ¶3. Further, Mr. Rice has no recollection of Complainant
delivering to him, on August 9, 2004, oron any other date, any document regarding “the
incident.” Rice Aff., at ¶4. Mr. Rice does have a document which Complainant
delivered to him on or about August 9, 2004, but this document relates to the Tank 17 CS
pump at the Facility, not to “the incident,~’Rice Aff., at
¶5,
and therefore is not
responsive to Request to Produce No. 15.
31.
Accordingly, as Flex-N-Gate has no documents responsive to Request No.
15, the Hearing Officer also must deny Complainant~sMotion to Compel as to this
Request.
•
9
IV.
CONCLUSION
WHEREFORE, RespondentFLEX-N-GATE CORPORATION respectfully
prays that the Hearing Officer deny Complainant’s Motion to Compel Production of
Documents and grant FLEX-N-GATE CORPORATION such other relief as the Hearing
Officer deems just.
Respectfully submitted,
FLEX-N-GATE CORPORATION
• Respondent,
By:
2~
Oneof Ao y~j
Dated: May 10, 2005
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217)523-4900
GWST:OO3fFilIResponse to Motion to Compel
-
RFPs
10
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 ofthe matters set forth in this affidavit.
2.
I am an attorney duly licensed in the State ofIllinois, and have been
retained by respondent Flex-N-Gate Corporation (“Flex-N-Gate”) to represent it in this
matter.
3.
On or about March 19, 2005, Complainant served his Request for
Production ofDocuments (“Request for Production”) on Flex-N-Gate, a copy ofwhich
Request is attached to Flex-N-Gate’s Response to Complainant’s Motion to Compel
Production ofDocuments (“Response to Motion to Compel”) as Exhibit C.
4.
On or about April 14, 2005, Flex-N-Gate mailed its Response to
Complainant’s Request for Production to Complainant, a copy ofwhich Response is
attached to Flex-N-Gate’s Response to Motion to Compel as Exhibit B.
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 stated
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.
GWST:OO3fFiI/Aflidavit
of
Thomas Safley
-
Response to MTC
-
RFPs
Subscribed and sworn o before
Not
Public
,2005.
“OFFIcL~SEAL”
Patti L.
Tu~kth~
Notaiy Pub1j~,State
of
illinois
My commission
Exp.
07/12/2008
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
•
Complainant,
)
)
v.
)
PCB No. 05-49
•
)
(Enforcement)
‘FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
•
)
)
Respondent.
•
)
FLEX-N-GATE
CORPORATION’S
RESPONSE TO
COMPLAINANT’S REQUEST FOR PRODUCTION OF DOCUMENTS
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
and for its Response to Complainant’s Request for Production ofDocuments, states as
follows:
1.
,
A copy of the document requested is produced herewith.
2.
A copy of the document requested is produced herewith.
3.
Flex-N-Gate objects to Request for Production No. 3 on the grounds that
• (1) the document which Request No. 3 seeks is irrelevant, as it relates only to
Occupational Safety and Health Administration (‘~OSHA”)issues, and (2) Complainant
has filed a complaint against Flex-N-Gate before OS HA. and it is, improper for
Complainant to use discovery in this litigation to seek information regardinc that OSHA’
matter.
•
4.
Flex-N-Gate objects to Request for Production No. 4 on the grounds that
(l)’the docurhei~ttwhich Request No. 4 seeks is irrelevant, as it relates only to OSHA
issues, and (2) Complainant has filed a complaint against Flex-N-Gate betbre OSHA, and
it is improper for Complainant to use discovery in this litigation to seek information
regarding that OSHA matter.
5.
Flex-N-Gate does not know what Complainant means by “operating log
for the plating line.” Produced herewith are documents relating to the operation ofthe
plating line between August 4 and 8, 2004, which may be responsive to Request for
Production No.
5.
IfComplainant provides further information regarding what he means
by “operating log for the plating line,” Flex-N-Gate will respond to Request No. 5’s
request for “the entire volume of the log.”
6..
The portions of “the Plating lab notebook” requested in Request for
Production No. 6 which include the dates August 4 through August 8 are produced
herewith. Flex-N-Gate objects to Request N~.6 to the extent that it seeks production of
notebooks dated before or after the dates ofthe notebooks produced, on the grounds that
such earlier and later notebooks are irrelevant and that it would he unduly burdensome
for Flex-N-Gate to produce them.
•
7.
•
The “maintenance work orders for the plating line” requested in Request
No. 7 arc produced herewith. Flex-N-Gate does not know what Complainant means by
the term “maintenance log
. . .
for the plating line for August 5 through August 8,
2004,” so ‘Flex-N-Gate, in response to Request No. 5 above, has produced all documents
in its possession which it thinks Complainant may be requesting b~’this term. Flex-N-
Gate has no other documents relating in an~’way to the maintenance of the plating line
between August
5
and August S. 2004.
•
S.
Flex-N-Gat~objects to Request for Production No. S to the extent that it
seeks ‘the discovery ofdocuments which are protected by the attorney-client privilege.
ALE non-privileged documents responsive to Complainant’s Request for Production No. 8
are produced herewith.
9.
Copies ofthe documents requested are produced herewith.
•
10.
Copies of the documents requested are produced herewith.
ii.
Flex-N-Gate has no documents responsive to Request for Production No.
11.
12.
Copies ofthe documents requested are produced herewith.
13.
Copies of the documents requested are produced herewith.
14.
Copies of the documents requested are produced herewith.
15.
Flex-N-Gate ‘does not know to what document Request No. 15 refers. If
• Complainant provides further information regarding this document (e.g., its author), Flex-
N-Gate will supplement it~response to this Request as appropriate.
16.
Flex-N-Gate objects to Request for Production No. 16 on the grounds that
(I) the document which Request No. 16 seeks is irrelevant, as it relates only to OSHA
issues, and (2) Complainant has filed a complaint against Flex-N-Gate before OSHA, and
it is improper for Complainant to Qse discovery in this litigation to seek information
regarding that OSHA matter.
•
17.
Flex-N-Gate objects tO Request for Production No. 17 on the grounds that
(1) the document which Request No. 17 seeks isirrelevant, as it relates only to OSHA
issues, and (2) Coniplainant has filed a complaint against Flex-N-Gate before OSHA. and
it is improper for Complainant to use discovery in this litigation to seek information
regarding ‘that OSHA matter.
‘
1 S.
•
Flex-N-Gate objects to Request for Production No. iS on the grounds that
• (1) the document which Request No. 18 seeks is irrelevant, as it relates only to OSHA
• issues, and (2) Complainant has filed a complaint against Flex-N-Gate before OSHA, and
3
it is improper for Complainant to use discovery in this litigation to seek information
regarding that OSHA matter.
Respectfully submitted,
‘FLEX-N-GATE CORPORATION,
Respondent,
By:
/7
• ,
One of~~to
‘~
y~j
Date: April 14, 2005
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
• Springfield, Illinois 62705-577.6
(2,17) 523-4900
GWST:0O3/F~I/Response~oRFP
4
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
MORTON F. DOROTHY,
‘
)
)
Complainant,
)
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION, “
)
an
Illinois Corporation,
,
‘
)
)
Respondent.
REQUEST FOR PRODUCTION OF DOCUMENTS
Complainant Morton
F.
Dorothy requests
that respondent Flex-N-Gate
Corporation produce the
following
documents within 30 days after the date of this
request:
‘
1’.
‘
The Emergency Response and Contingency Plan for the facility as of August 5,
2,004.
‘
2.
Any amended Emergency Response and Contingency Plan for the facility since
August 5,
2004.
‘
3.
The Emergency Response Plan for the facility pursuant to 29 CFR 1910 as of
August 5, 2004.
4.
Any amended Emergency Response Plan for the facility pursuant to 29 CFR.
1910 since August 5,
2004.
5,
The operating log for the plating line,
including
the dates August 4 through
August 8,
2004.
Although the entire volume of the log
must
be
produced
for
inspection, complainant seeks
copies
of only the indicated dates.
6.
Plating lab notebook,
including
the dates August
4
through August 8, 2004.
Although the entire volume of
the log
must be’produOed for inspection,
complainant
seeks copies
Of
only the indicated dates.
7.
‘
Maintenance log and maintenance work orders for the plating line for August 5
through August
8, 2004.
,
‘
8.
Any
written
accounts
of
the incident on
third shift,A~~-‘jst4-5,2004,
produced by
‘
or for respondent.
9.
Copies of hazardous
waste manifests initiated by the facility during
July, August
and September, 2004.
10.
Material Safety Data Sheets for the following:
a.
Bulk sulfuric acid used by the facility in August, 2004.
b.
Tank 20 additive “TA”
c..
Tank 20 additive HSA-90 or “High Sulfur Additive-90”.
11.
Copies of all correspondence with the Illinois Environmental Protection Agency
concerning the
incident
alleged in
the
complaint.
12.
Copies of all correspondence with the Occupational Safety and Health
Administration (OSHA) concerning the incident alleged in th•e ‘complaint.
13.
Copies of all correspondenc.e with the Illinois Environmental Protection Agency
concerning the RCRA permit status or claims of exemption from the RCRA
permit requirement.
,
14
COpies of all OSHA notices posted in connection with the incident alleged in the
complaint.
15.
Account of the incident that is the subject of the complaint delivered to Tony Rice
on or about August 9, 2004.
16.
The “Hazwoper 24-hour” training certificate for complainant.
17.,
Training notebook and materials used by respondent for “Hazwoper 24-hour”
training prior to the incident alleged in the complaint.
18.
Copies of the “threat letters that if we did not hire this employee back he would
make it difficult for Guardian West by calling local and federal agencies”,
-
referenced in a fax s’ent by Denny Corbett to Peggy A. Zweber on September’14,
2004.
‘
Morton
F. Dorothy
804 East Main
j~
Urbana lL61802
~
~
217/384-1010
Morton
F. Dorothy, Complainant
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB05-49
)
FLEX-N-GATE CORPORATION,
)
an illinois corporation,
)
)
Respondent.
)
AFFIDAVIT OF JACKIE CHRISTENSEN
Jackie Christensen, being first duly sworn, deposes and states under oath, and if
sworn as a witness, would testif~’,as follows:
1.
I have personal knowledge ofthe matters set forth in this affidavit.
2.
I am employed by Flex-N-Gate Corporation (“Flex-N-Gate”) as
Envfronmental Manager at the facility at issue in the above-captioned matter.
3.
,
In light
ofComplainant’s Motion to Compel Production ofDocuments, I
have searched Flex-N-Gate’s records again and have been unable to locate any work
order initiated by Afiba Martin forthe plating line between August
5
and 8, 2004, or any
other work orders “for the third shift ofAugust 4-5, 2004” other than the work order
previously produced to Complainant.
4.
Hex-N-Gate has produced to Complainant all “maintenance work orders
for the platingline for August
5
through August 8,2004.”
Under penalt.ies
‘as
provided
by law
pursuant to
Section
1—
.109
of the
Code of
Civil
ProOedure, the undersigned
certifies
that
the
statements
set forth
in
this instrument
are true
and
correct,
except
as to matters therein
stated
to be on information
and
belief
‘and
as to such matters
the
undersigned
certifie~as aforesaid that
be
verily believes
the same to be true.
‘
FURTHER APEIANT SAYETH
NOT.
Subscribed and~sworn to before
_________________
me this
\Q~
day of ~
,
2005
~ii~1~’1
I
~‘ -‘
-
~
(ia_J_~
‘
~ V..ickie .L~.
Patton
~
U
itk~’~
~
•‘~
.‘
Notary Public
GWST
OO3fFil/Affidav~tofJackie Cbnstensen Response to MTC
-
RFPs
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
MORTONF. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB05-49
)
FLEX-N-GATE CORPORATION,
)
an illinois corporation,
)
)
Respondent.
)
AFFIDAVIT OF GARY HINTON
GaryHinton, being first duly sworn, deposes and states under oath, and if sworn
as a
witness, would testify, as follows:
1.
Ihave personal knowledge ofthe matters set forth in this affidavit.
2.
I am employed by Flex-N-Gate Corporation (“Flex-N-Gate”) as Human
Resources Manager at the facility at issue in the above-captioned matter.
3.
In light ofComplainant’s Motion to Compel Production ofDocuments, I
have reviewed Flex-N-Gate’s personnel files relating to Complainant, and I was unable to
locate any document hand-delivered by Complainant to Mr. Tony Rice ofFlex-N-Gate
on August 9, 2004, or on any other thte, regarding “the incident” at issue in the above-
captioned matter.
-
Under penalties as provided by law pursuant to Section 1-
109
of.
the” Code of Civil Procedure, the undersigned
certjfies’that
the
~tate.nients
set
forth
in this instrument
are
true
~nd
cerrect, ‘except as to
matters
therein
stated
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 SAYETWNbT.”
Subscnbed and swo
t
before
me this
k)
dayof
,
2005
Notary Public
GWST:003/Fil/Mfldavitof Gary Hinton- Re pDnseto~MTC
-
RiPs
‘,~.,
1~’’
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
AFFIDAVIT
OF
ANTHONY RICE
Anthony Rice, being first duly sworn, deposes and states under oath, and if sworn
as a witness, would testify, as follows:
1.
I have personal knowledge ofthe matters set forth in this affidavit.
2.
I am employed by Flex-N-Gate Corporation (“Flex-N-Gate”) as Plating
Manager at the facility at issue in the above-captioned matter.
3.
In light of Complainant’s Motion to Compel Production ofDocuments, I
have reviewed my files, and I was unable to locate any document hand-deliveredby
Complainant to me on August 9, 2004, or on any other date, regarding “theincident” at
issue in the above-captioned matter.
4.
Further, I have no recollection ofComplainant hand-delivering to me, on
August 9, 2004, or on any other date, any document regarding “the incident.”
5.
I do have a document which Complainant delivered to me on or about
August 9, 2004, but this documeitt relates, to the Tank 17 ‘Cs pump, not to “theincident.”
Under penalties as provided by law
pursuant,
to
Section 1-
109 of the ‘Code of Civil
Procedure,
the underáigned
certifies that the;state.ments set forth in
this instrun~ent
are
true ‘and
correct,
e.xcépt
as
to
matters
therein stated
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 SAYBTh NOl~,II
-
Subscnbed and
swo to
before
me this ~
,
~~•“
f~V~JC11.~LSEAIT1
~5L~o~
-~?1~?~
•,~
~
••ieLpatt
I
GWST;0031Fil/Aftidavit
‘Notary Public
ofAnthony
‘~‘
Rice
-
~ès~on~e
to MTC
—
RiPs
c2~c~p.o~&~7
