RE
CE ~V ED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
CHAMPAIGN COUNTY, ILLINOIS
M~Y
2?
2005
MORTON
F.
DOROTHY,
Pa
Ut
on
Co
d
Complainant,
)
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
REPLY TO RESPONSE TO
MOTION TO COMPEL RESPONSE TO
INTERROGATORIES
Complainant, Morton
F. Dorothy, makes
the following reply to respondent,
Flex-
N-Gate Corporation’s response to motion to compel
response to interrogatories
AFFIDAVITS
Complainant
has filed
a separate affidavit in support of his motions to compel
discovery.
ADDRESSES AND
PHONE NUMBERS
2.
The addresses and
phone
numbers
of potential witnesses is a routine question
relevant to
establishing the
identity of the person. Among other things,
it allows
the complainant to investigate the background of potential witnesses, without
necessarily contacting the witnesses.
3.
Complainant is
not acting as a paid attorney
in
this matter, but rather is
exercising
his right and obligation as an Illinois citizen to act directly on behalf of
the people of the State to enforce environmental laws, the violation of which
complainant chanced to observe. Because complainant has not entered his
appearance as an attorney in this case, the rules governing attorneys acting as
such do not on their face apply to him.
4.
Although the Illinois Rules on Professional
Conduct may limit direct contact
between an attorney and certain
potential witnesses, those
rules do not state
that they limit the scope of discovery.
The straightforward interpretation of the
rule is that, while the names and addresses are discoverable, contact with the
witnesses may be limited.
OSHA RELEVANCE
IRRELEVANT
5.
In
its
initial response to the interrogatories,
respondent argued that certain
requests were
irrelevant simply because they were relevant to the OSHA
proceeding.
In pars.
21
and 22 (of the Response to Motion to Compel
Admissions), Respondent appears to concede that there is
no rule of law that
limits discovery in a Board proceeding to that which is relevant to that proceeding
and to no other proceeding. The question
is simply whether the information
is
relevant to the Board
proceeding or calculated to lead to relevant information.
6.
Admissions made by respondent
in a Board proceeding would not be admissible
in another forum:
Effect of Admission.
Any admission made by a party pursuant to a
request under this Section
is for the purpose of the pending proceeding
only.
It does not constitute an admission by the party for any other
purpose and may not be used against him in any other proceeding.
(Section
101 .618(i))
RELEVANCE OF EMERGENCY RESPONSE PLAN
7.
In response to Request for Production
1, respondent has produced
a document
entitled “Emergency Response and Contingency Plan”.
8.
Page 6-12 of the
“Emergency Response and Contingency Plan” states that “This
Contingency Plan
has been
prepared to fulfill the requirements of 40 CFR 265,
Part
D and 35 Illinois Administrative Code 725...”
9.
35
III. Adm. Code 725.Subpart D requires the preparation of a “contingency
plan”.
10.
OSHA rules
require the preparation of an “emergency response plan”.
11.
Complainant believes that,
in light of the title, “Emergency Response and
Contingency Plan”, the document was intended to simultaneously meet the
similar requirements of the Board and OSHA rules.
12.
Complainant further believes that there is no separate OSHA Emergency
Response
Plan because Freedom of Information Act requests to public agencies
have produced only the “Emergency Response and Contingency Plan”.
13.
lnterrogatories
16 and 17 are directed at establishing for certain that respondent
had
no separate OSHA Emergency Response Plan.
14.
Complainant is seeking that the Hearing Office order a response to
Interrogatories
16 and
17.
If respondent fails to respond, complainant would
request that the Hearing Officer bar respondent from
producing such an
Emergency Response
plan at hearing, orfrom
arguing that the August 5, 2004
emergency response was pursuant to that hypothetical
plan, rather than
the
“Emergency Response and Contingency Plan” that has been produced.
RELEVANCE OF HAZWOPER TRAINING
15.
Page 6-3
of the “Emergency Response and Contingency Plan” states that “The
Department Associates are trained to provide response capabilities within their
own department. Due to their experience and knowledge of the chemicals within
the departments, they are able to respond appropriately to the threat.”
16.
Complainant, and certain
other employees,
received “24-hour Hazwoper”
training, and no other significant training on how to deal with hazardous waste
emergencies.
17.
“24-hour Hazwoper” training appears to be designed to meet the 24-hour
emergency response training required under OSHA rules.
18.
Because the “Emergency Response and Contingency Plan” refers to “training”,
and the “24-hour Hazwoper” was the only relevant training received by the
employees, complainant concludes that the “24-hour Hazwoper” training was
provided to meet the training requirements under the “Emergency Response and
Contingency Plan”.
19.
Interrogatory 15 asked that
respondent list employees who had received “24-
hour Hazwoper” training. This is
relevant because it establishes which
employees were the “Department Associates
...
trained to provide response
capabilities within their own department” referred to in the contingency
plan.
20.
The failure to provide employee training would itself be a violation of Board rules,
as would operation of the plating line without trained employees present. If
respondent wishes to pursue this line of argument, complainant is
willing to
amend the complaint to add a count alleging that respondent violated
Board
rules by failing to provide the training required
in the contingency plan.
WHEREFORE complainant prays that the Hearing Officer grant his motion to
compel
response to interrogatories.
Morton
F. Dorothy
804 East Main
~Th
Urbana lL61802
I
~
k-~
‘~/~71A~1~-k./
217/384-1010
Morton
F.
Dorothy, Complainant
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFF!
CHAMPAIGN
COUNTY, ILLINOIS
MAY
272005
MORTON
F.
DOROTHY,
)
STATE OF ILLINOIS
)
Pollution Control Board
Complainant,
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
REPLY TO RESPONSE
TO
MOTION TO COMPEL RESPONDENT TO ADMIT THE
TRUTH OF CERTAIN
FACTS
Complainant, Morton
F. Dorothy, makes the following
reply to respondent,
Flex-
N-Gate Corporation’s response to motion
to compel
respondent to admit the truth of
certain facts:
AFFIDAVITS
Complainant
has filed
a separate affidavit in support of his motions to compel
discovery.
OSHA RELEVANCE
IRRELEVANT
2.
In its initial
response to the request to admit, respondent argued that certain
requests were
irrelevant simply because they were relevant to the OSHA
proceeding.
In pars. 21
and 22,
Respondent appears to concede that there is
no
rule of law that limits discovery in a Board
proceeding to that which
is relevant to
that proceeding and to no other proceeding. The question
is simply whether the
information
is relevant to the Board
proceeding or calculated to lead to relevant
information.
3.
Admissions made by respondent in a Board proceeding would not be admissible
in another
forum:
Effect of Admission.
Any admission made by a party pursuant to a
request under this Section
is for the purpose of the pending proceeding
only.
It does not constitute an admission by the party for any other
purpose and may not be used against him in any other proceeding.
(Section
101.618(i))
RELEVANCE OF EMERGENCY RESPONSE PLAN
4.
In response to Request for Production 1, respondent has produced a document
entitled “Emergency Response and Contingency Plan”.
5.
Page 6-12 of the “Emergency Response and Contingency Plan” states that “This
Contingency Plan
has
been
prepared to fulfill the requirements of 40 CFR 265,
Part
D and 35 Illinois Administrative Code 725...”
6.
35
III. Adm.
Code 725.Subpart D requires the preparation of a “contingency
plan”.
7.
OSHA rules require the preparation of an “emergency response plan”.
8.
Complainant believes that,
in light ofthe title, “Emergency Response and
Contingency Plan”, the document was intended to simultaneously meet the
similar requirements of the
Board
and OSHA rules.
9.
Because complainant chose to combine these plans, it is not possible for
respondent to argue in general that “whatever is relevant to OSHA is irrelevant
to
Board rules”.
RELEVANCE OF HAZWOPER TRAINING
10.
Page 6-3
of the “Emergency Response and Contingency Plan” states that “The
Department Associates are trained to provide response capabilities within their
own department. Due to their experience and knowledge of the chemicals within
the departments, they are able to respond appropriately to the threat.”
11.
Complainant, and certain other employees, received “24-hour Hazwoper”
training,
and no other significant training on how to deal with hazardous waste
emergencies.
12.
“24-hour Hazwoper” training appears to be designed to meet the 24-hour
emergency response training required under OSHA rules.
13.
Because the “Emergency Response and Contingency Plan” refers to “training”,
and the “24-hour Hazwoper” was the only relevant training received by the
employees, complainant concludes that the “24-hour Hazwoper~’training was
provided to meet the training requirements under the “Emergency Response and
Contingency Plan”.
14.
Requests to Admit
9 and 10 asked that respondent either admit or deny that two
employees received “24-hour Hazwoper” training. This is relevant because
it
establishes that these two employees were the “Department Associates
trained to provide response capabilities within their own department” referred to
in the contingency plan.”
15.
The failure to provide employee training would itself be a violation of Board
rules,
as would operation of the plating line without trained employees present. If
respondent wishes to pursue this line of argument, complainant is willing to
amend the complaint to add a count alleging that respondent violated
Board
rules by failing to provide the training required
in the contingency plan.
WHEREFORE complainant prays that the Hearing Officer grant his motion to
compel respondent to admit the truth of certain facts.
Morton
F. Dorothy
804 East Main
~Th
Urbana 1L61802
“-‘
‘-o’~
217/384-1010
Morton
F.
Dorothy, Complainant
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFF!CE
CHAMPAIGN COUNTY,
ILLINOIS
MAY
272005
MORTON
F.
DOROTHY,
)
STATE OF ILLINOIS
)
Pollution
Control Board
Complainant,
)
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an
Illinois Corporation,
)
)
Respondent.
)
REPLY TO RESPONSE TO
MOTION
TO COMPEL PRODUCTION OF DOCUMENTS
Complainant,
Morton
F. Dorothy, makes the following reply to respondent, Flex-
N-Gate Corporation’s
response to motion to compel
production of documents:
AFFIDAVITS
1.
Complainant has filed a separate affidavit in support of his motions to compel
discovery.
OSHA RELEVANCE IRRELEVANT
2.
In
its initial response to the request to admit, respondent argued that certain
requests were
irrelevant simply because they were relevant to the OSHA
proceeding.
In pars.
21
and
22 (of the Response to Motion to
Compel
Respondent to Admit the Truth of Certain Facts), Respondent appears to
concede that there is
no rule of law that limits discovery in a Board proceeding to
thatwhich is relevant to
that proceeding
and to no other proceeding. The
question
is simply whetherthe information is relevant to the Board proceeding or
calculated to leadto relevant information.
RELEVANCE OF EMERGENCY RESPONSE
PLAN
3.
In response to Request for Production
1, respondent has produced a document
entitled “Emergency Response
and Contingency Plan”.
4.
Page 6-12 ofthe “Emergency
Response and Contingency Plan” states that “This
Contingency Plan has been prepared to fulfillthe requirements of 40
CFR 265,
PartD and
35 Illinois Administrative Code 725...”
5.
35
III. Adm. Code 725.SubpartD
requires the preparation of a “contingency
plan”.
6.
OSHA rules require the preparation of an “emergency response plan”.
7.
Complainant believes that,
in light of the title, “Emergency Response and
Contingency Plan”, the document was intendedto simultaneously meet the
similar requirements of the
Board and OSHA rules.
8.
Complainant further believes that there is
no separate OSHA Emergency
Response Plan because Freedom of Information Act requests
to public agencies
have produced only the “Emergency Response and Contingency Plan”.
9.
Requests to Produce 3 and 4 are directed at establishing for certain that
respondent had no separate OSHA Emergency Response Plan.
10.
Complainant is seeking that the Hearing Office order production of the plan. If
respondent fails to produce the plan, complainant would request that the Hearing
Officer bar respondent from
producing such a plan at hearing, or from
arguing
that the August 5, 2004 emergency response was pursuant to some
hypothetical
plan,
rather than the “Emergency Response and Contingency Plan” that has
been
produced.
RELEVANCE OF
“HAZWOPER TRAINING”
11.
Page 6-3 of the “Emergency Response and Contingency Plan” states that “The
Department Associates
are trained to provide response capabilities within their
own department.
Due to their experience and knowledge of the chemicals within
the departments, they are able to respond appropriately to the threat.”
12.
Complainant,
and certain other employees, received “24-hour Hazwoper”
training, and no other significant training on how to deal with hazardous waste
emergencies.
13.
“24-hour Hazwoper” training appears to be designed to meet the 24-hour
emergency response training required under OSHA rules.
14.
Because the “Emergency Response and Contingency Plan” refers to “training”,
and the “24-hour Hazwoper” was the only relevant training received by the
employees, complainant concludes that the “24-hour Hazwoper” training was
provided to meet the training requirements underthe “Emergency Response and
Contingency Plan”.
15.
Request to Produce
16 requested the Hazwoper training certificate for
complainant. This is relevant to establish that complainant was the “trained
Department Associate” referred to in the “Emergency Response and
Contingency Plan”.
16.
The Hazwoper training certificate is
the property of the complainant. Respondent
has no legal right to it. If respondent persists in refusing to turn
it over,
respondent will initiate criminal or civil actions to recover it.
17.
Request to Produce
17 asked for the Hazwbper training notebook and
materials.
These were used by respondent to communicate the requirements of the
“Emergency Response and Contingency Plan” to the employees, who had
no
direct access to the plan
itself. These are relevant to establish respondent’s
interpretation of the plan
prior to the incident.
18.
The failure to provide employee training would itself be a violation of Board
rules,
as would operation of the plating
line without trained employees present. If
respondent wishes to pursue this line of argument, complainant is willing to
amend the complaint to add a count alleging that respondent violated
Board
rules by failing to provide the training required
in the contingency plan.
“THREAT LETTERS”
19.
In response to Request
to
Produce
12,
respondent has
provided a copy
of a fax
from Denny Corbett to OSHA dated 9/14/2004.
That fax makes reference to
“threat letters”. Complainant believes that this statement was false,
and that no
such “threat letters” exist. Complainant has requested (No.
18) that
respondent
produce the “threat letters”. The
absence of “threat letters” would be used to
impeach any testimony given by Denny Corbett.
20.
In paragraphs 10 and
13, complainant seems
to
be arguing that, because Denny
Corbett’s false statements to OSHA were
criminal, they are somehow protected
from discovery.
Respondent has not, however, asserted the constitutional right
against self-incrimination with respect to either Denny Corbett or its own
corporate identity.
21.
Denny Corbett was a witness to portions of the incident. He has stated
in the
above cited
memorandum, and another memorandum of the same date, that
there was no release of hydrogen sulfide gas. Because respondent is
denying in
its answer that there was a hydrogen sulfide release, there
is a material issue as
to whether the release occurred.
Denny Corbett appears to be the only person
who was present and still employed by respondent who could
(arguably) testify
that no release occurred.
Furthermore, Denny Corbett is the only person who
has made this claim in the written documentation that has been
produced. If
respondent does not intend to call
Denny Corbett as a witness to testify that no
release occurred,
Respondent needs to admit at this time that the release
occurred.
22.
Respondent appears to be arguing that, because they have
not yet stated that
they intend to call
Denny Corbett as a witness, his credibility is not yet in issue.
The problem with this argument
is that it would require another round of
discovery after respondent identified
Denny Corbett as a witness.
23.
At this time complainant is asking for an order compelling respondent to produce
the “threat letters”. If respondent is unable to produce the “threat letters”,
complainant will move for sanctions, which would include barring later production
of the “threat letters”,
barring Denny Corbett’s testimony and a finding that the
statement to OSHA was false.
THIRD SHIFT WORK ORDERS
24.
Request to Produce 7 asked for work orders for August 5 through
8, 2004. The
documents produced
begin with first shift on August 5, at 7:00
a.m.
No work
orders whatsoever were produced for third shift of August 4-5, which included
the time period from
12:00
am to 7:00
am on August 5, during which time the
incident occurred.
25.
The statement of Afiba Martin,
produced in discovery, makes reference to a work
order he initiated during third
shift, which work order has not been
produced.
26.
Complainant believes that, because the factory day began at 7 am on August 5,
respondent has inadvertently failed to produce the August 4, third shift work
orders.
27.
Complainant is requesting that the Hearing Officer order that respondent
produce these work orders.
WRITTEN ACCOUNT
28.
Request to Produce
15 asked for the written account of the incident that was
hand-delivered to Tony Rice on or about August 9, 2004.
29.
The written account was also addressed to Larry Attard. Complainant is,
however, uncertain as to whether he was able to deliver the copy to Larry Attard.
30.
The written account of the incident was delivered to Tony Rice
at about the same
time as other documents addressing the sabotage of the Tank 17 CS pump, the
falsification of rust inhibitor quality control data,
as well as the Night in Which
Everything
Broke.
31.
Complainant is requesting that the Hearing Officer order production of this
document. In the event the document cannot be produced, complainant would
request appropriate sanctions.
Complainant would ask that his copy of the
written account be admitted into evidence as a contemporaneous written
record
produced
in the ordinary course of business.
WHEREFORE complainant prays that the Hearing Officer grant his motion to
compel
production of documents.
Morton
F.
Dorothy
804 East Main
Urbana IL 61802
~
\~o(l~fl4/
217/384-1010
Morton
F. Dorothy, Complainant
BEFORE THE ILLINOISPOLLUTION CONTROL ~
CHAMPAIGN COUNTY, ILLINOIS
CLERK’S
OFFICE
MORTON
F. DOROTHY,
)
MAY
272005
STATE OF ILLINOIS
Complainant,
)
Pollution Control Board
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an
Illinois Corporation,
)
)
Respondent.
)
AFFIDAVIT IN SUPPORT OF REPLIES TO RESPONSES TO MOTIONS TO COMPEL
DISCOVERY
Complainant,
Morton
F.
Dorothy,
makes the
following affidavit in support of his
Reply to Response to
Motion to Compel Respondent to Admit The Truth of Certain
Facts,
Reply to Response to Motion to Compel
Production of
Documents,
and
Reply to
Response to
Motion to Compel
Response to Interrogatories.
Morton
F.
Dorothy, Complainant
State of Illinois
)
)
ss
County of Champaign
)
AFFIDAVIT
1.
In response to Request for Production
1, respondent has produced
a document
entitled “Emergency Response and Contingency Plan”.
2.
Page 6-12 of the “Emergency Response and Contingency Plan” states that “This
Contingency Plan
has been
prepared to fulfill the requirements of 40 CFR 265,
Part
D and
35 Illinois Administrative Code 725...”
3.
OSHA rules require the preparation of an “emergency response plan”.
4.
Complainant believes
that,
in light of the title, “Emergency Response and
Contingency Plan”, the document was intended to simultaneously meet the
similar requirements of the Board and OSHA rules.
5.
Complainant further believes that there
is no separate OSHA Emergency
Response
Plan because Freedom of Information Act requests to public agencies
have produced only the “Emergency Response and Contingency Plan”.
6.
Page 6-3 of the “Emergency Response and Contingency Plan” states that “The
Department Associates are trained to provide response capabilities within their
own department. Due to their experience and knowledge of the chemicals within
the departments, they are able to respond appropriately to the threat.”
7.
Complainant, and certain other employees, received “24-hour Hazwoper”
training, and no other significant training on how to deal with hazardous waste
emergencies.
8.
“24-hour Hazwoper” training appears to be designed to meet the 24-hour
emergency response training required under OSHA rules.
9.
Because the “Emergency Response and Contingency Plan” refers to “training”,
and the “24-hour Hazwoper” was the only relevant training
received by the
employees, complainant concludes that the “24-hour Hazwoper” training was
provided to meet the training requirements under the “Emergency Response and
Contingency Plan”.
10.
The Hazwoper training certificate is the property ofthe complainant.
Respondent
has no legal right to it.
11.
Request to Produce
17 asked for the Hazwoper training notebook and materials.
These were used by respondent to communicate the requirements of the
“Emergency Response
and Contingency Plan” to the employees, who had
no
direct access to the plan itself.
12.
Denny Corbett was a witness to portions of the incident. He has stated
in the
September 14,2004, memorandum to OSHA, and another memorandum of the
same date, that there was no release of hydrogen sulfide gas. Because
respondent is denying
in its answer that there was a hydrogen sulfide release,
there
is a material issue as to whether the release occurred.
Denny Corbett
appears to be the only person who was present and still employed by
respondent who could (arguably) testify that no release occurred.
Furthermore,
Denny Corbett is the only person who has made this claim
in the written
documentation that has been produced.
13.
Request to Produce 7 asked for work orders for August 5 through 8, 2004.
The
documents produced begin with first shift on August 5, at 7:00
a.m.
No work
orders whatsoever were produced for third
shift of August 4-5, which included
the time period from 12:00 amto 7:00 am on August 5, during which time the
incident occurred.
14.
The statement of Afiba Martin, produced
in discovery, makes reference to
a work
order he initiated during third shift, which work order has not
been produced.
15.
Complainant believes that,
because the factory day began at 7 am on August 5,
respondent
has inadvertently failed to produce the August 4, third
shift work
orders.
16.
The written account of the incident was delivered to Tony Rice at about the same
time as other documents addressing the sabotage of the Tank
17 CS pump, the
falsification of rust inhibitor quality control data, as well as the
Night
in Which
Everything Broke.
17.
The written account was also addressed to Larry Attard.
Complainant is,
however,
uncertain as to whether he was able to deliver the copy to Larry Attard.
18.
Complainant is
not acting as a
paid attorney in this matter, but rather is
exercising his right and obligation as an Illinois citizen to act directly on behalf of
the people of the State to enforce environmental laws, the violation of which
complainant chanced to observe.
1\ko~z~
,‘j
i~
~T1~/
Morton
F. Dorothy, Complainant
The undersigned,
a notary public in and for the aforesaid County and State,
certifies that the above person appeared before me and signed
the foregoing document
on the
~
day of May, 2005,
-
,~‘.
“OmCIAL
SEAL”
BRADLEY
M.
KRALI.
Notary Publi
Notary
Public,
Stati
of
Illinois
My
Commission
Expires
11i26(O6~
Morton
F. Dorothy
804 East Main
Urbana IL 61802
217/384-1910
