BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
MORTON F. DOROTHY,
Complainant,
FLEX-N-GATE CORPORATION,
ois corporation,
Respondent.
)
PCB No. 05-49
)
)
)
NOTICE OF FILING
TO: Ms. Dorothy M.
Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West
Randolph Street
Suite I1-500
Chicago, Illinois 60601
(VIA ELECTRONIC MAIL)
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield,
Illinois
62794-9274
(VIA ELECTRONIC
MAIL)
PLEASE TAKE NOTICE that I have today filed with the
Office of the Clerk of
the Illinois Pollution
Control Board RESPONDENT FLEX-N-GATE
CORPORATION'S
AMENDED ANSWER TO COMPLAINANT'S COMPLAI
a copy of which is herewith served upon you.
Respectfully submitted,
Dated: November
15, 2005
Thomas G. Safley
GE DWYER ZEMAN
3150 Roland
Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
FLEX-N-GATE CORPORATION,
Respondent,
By:/s/ Thomas G. Safley
One of Its Attorneys
THIS FILING SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 15, 2005
CERTIFICATE OF
SERVICE
1, Thomas
G. Safley, the undersigned, certify that I have served the attached
RESPONDENT FLEX-N-GATE
CORPORATION'S
AMENDED
ANSWER TO
COMPLAINANT'S COMPLAINT upon:
Ms. Dorothy M.
Gunn
Clerk of the 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
via electronic mail on November 15, 2005; an
Mr.
Morton F. Dorothy
104 West
University, S W Suite
Urbana, Illinois 61801
by depositing
documents in the
United States Mail in Springfield, Illinois, postage
prepaid, on
November 15, 2005.
/s/ Thomas
G. Safley
Thomas
G. Safley
GWST:OQ3/Fil/NOF
anal COS-Amended Answer
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F.
DOROTHY,
)
Complainant,
)
v.
)
PCB 05-49
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
Respondent.
)
D ANSWER TO COMPLAINANT'S COMPLAINT
RESPONDENT FLEX-N-GATE
CORPORATION'S
NOW
COMES Respondent FLEX-N-GATE CORPORATION ("Flex-N-Gate"),
by its attorneys HODGE DWYER ZEMAN, pursuant to the Illinois Pollution
Control
Board's
("Board") Order dated October 20, 2005, and for its Amended Answer to
Complainant's Complaint, states as follows:
ALLEGATIONS COMMON TO ALL COUNTS
1.
Paragraph one of Comp
's
Complaint states a legal conclusion that
does not
call
for
a response. To the extent that paragraph one makes any allegations
of
fact, Flex-N-Gate denies
the same.
2.
Flex-N-Gate has
ient knowledge to either admit
or deny the
allegations of paragraph two
of Complainant's Complaint, and therefore denies the same.
3.
Flex-N-Gate admits the
allegations of paragraph three of Complainant's
Complaint.
4.
Flex-N-Gate admits the
allegations of paragraph four of Complainant's
Complaint.
5.
Flex-N-Gate admits the allegations of paragraph five of Complainant's
Complaint.
6.
Flex-N-Gate admits the allegation of the first sentence of paragraph six of
Complainant's Complaint that "[t]he tanks are mounted on concrete piers above a
coated
concrete or." Flex-N-Gate denies the allegations of the second sentence of paragraph
of Complainant's Complaint. In particular, Flex-N-Gate denies that any "chemicals"
which "fall to the floor" of the room in which the "chrome plating line" (identified in
paragraph four of Complainant's Complaint) is located are "sp " and then "pumped to
a hazardous waste treatment unit." Rather, Flex-N-Gate affirmatively
states that
the
chrome plating line is engineered so that substances will fall from the bumpers at issue
during the process of cleaning, plating, a rising,
and
land
on the
floor
of the
room in
which that line is located, which floor constitutes part of a Wastewater Treatment Unit as
. Code § 703.110, not a "hazardous
waste
treatment unit." This
process is
s does not constitute "spillage." To the extent that
paragraph six of
Complainant's Complaint states any other allegations of fact, Flex-N-
Gate denies the same.
7.
Flex-N-Gate denies that any "spillage" is located "on the floor" as alleged
in paragraph seven
of Complainant's Complaint. See Answer to paragraph six above.
Further, paragraph seven of Complainant's Complaint states a legal conclusion that
does
not call for a response. To the extent that paragraph
seven of Complainant's Complaint
y allegations of fact, Flex-N-Gate denies the same.
8.
Flex-N-Gate denies that any "spillage" is located
"on the floor" as alleged
in paragraph eight of Complainant's Complaint. See Answer to paragraph six above.
2
Flex-N-Gate does not know what Complainant means by the term "complex mixture,"
and therefore has insufficient knowledge to admit or deny this allegation, and therefore
denies the same. Flex-N-Gate admits that "chromic acid, nickel sulfate from the nickel
g tanks[,
and] sulfuric
acid,"
as
well as
cleaners and
large
amounts of water,
could,
at various es, be present on the floor of the room in which the "chrome plating line" is
located.
Flex-N-Gate further admits that one "proprietary. . . additive[] used in one of
the nickel plating tanks to form a ... corrosion resistant nickel layer" could, at various
s, be present on the floor of the room in which the "chrome plating line" is located.
Flex-N-Gate further admits that this proprietary additive contains approximately.].
sulfur, To the extent that paragraph eight of Complainant's Complaint makes any fort
allegations of fact, Flex-N-Gate denies the same.
9.
Flex-N-Gate denies that any
ragraph nine
of Co
'is located "on the floor" as alleged
is Complaint. See Answer to paragraph six above.
Further, Flex-N-Gate does not know what Complainant means by the
terms
"contaminated
debris and sludge beds." Accordingly, Flex-N-Gate has insufficient
knowledge to either admit or deny the allegations of paragraph
nine of Complainant's
Complaint, and therefore denies the same.
10. Flex-N-Gate denies that "the facility includes
a hazardous waste treatment
unit," as
alleged in paragraph ten of Complainant's Complaint, but Flex-N-Gate admits
that "the facility" includes
a Wastewater Treatment Unit as defined
Code § 703.110. Flex-N-Gate further denies that the Wastewater Treatment
Unit
conducts "reduction of hexavalent chromium with
sodium metabisulfite," but rather,
affirmatively states that it conducts reduction of hexavalent
chromium with magnesium
bisulfite. Flex-N-Gate admits the remaining allegations of paragraph ten of
Complainant's Complaint.
11. Flex-N-Gate admits the allegations of paragraph 11 of Complainant's
Complaint.
12. Flex-N-Gate denies the allegation contained in the first sentence of
paragraph 12 of
Complainant's Complaint.
The remainder
of
paragraph
12 states
legal
conclusions that do not call for a response. To the extent that paragraph 12 states any
further
allegations of fact, Flex-N-Gate denies the same.
13. Flex-N-Gate admits the allegations of paragraph 13 of Complainant's
Complaint.
14. In response
to
paragraph 14 of
Complainant's Complaint, Flex-N-Gate
states as follows. The facility stores approximately 93% concentrated sulfuric acid in a
"bulk storage" tank.
Several
pipes lead from
this bulk storage tank to various other tanks
at the facility, including a pipe that leads to Tank No. 8, whic
plating line
of the "chrome
contains
a
solution
of approximately 10% sulfuric acid and 90% water.
Near Tank No. 8, this pipe approaches that tank traveling horizontally at a level lower
than the top of
the tank
(pipe
segm
), then travels vertically to a level her than the
top of the tank (pipe segment 2), then travels horizontally
to a position over the top of the
tank
(pipe
segment 3), then descends vertically into the top of the tank (pipe segment 4).
On August
5,
2004,
this
pipe
separated at a fitting that is located in the vertical portion of
the pipe that is outside the tank, i.e., in pipe segment 2. This allowed
a small quantity of
cid that was in the portion
of
pipe
segment 2 above the location of this fitting,
and potentially sulfuric acid contained in pipe segments 3 and 4, to
be released to the
4
floor of the room in which the chrome plating line was located. In addition, back
oning could
have
occurred
in
this situation,
which would have
allowed some amount
of the approximately 10% sulfuric acid solution contained in Tank No. 8
to
be released to
the floor as well. Sulfuric acid is transferred from bulk storage to Tank No. 8 by use of a
pump that is located at the bulk storage tank, which pump is controlled by a button
located adjacent to Tank No. 8. A valve is located in pipe segment 2, below the fitting
that separated, which valve must be opened to allow material
to be pumped from
bulk
storage to Tank No. 8. The pump was not operating at the
he separation in the
Thus, sulfuric
acid
was not
pumped
from
bulk storage through the separation
pipe and onto the floor. To the extent that paragraph 14 of Complainant's Complaint
states any further factual allegations, Flex-N-Gate denies the same.
15. Flex-N-Gate denies the allegations of paragraph 15 of Complainant's
Complaint.
16.
e admits the allegation contained in
the
first
sentence of
paragraph 16. Flex-N-Gate states that the reg ions quoted and cited in the second and
fourth sentences of par
16
speak for themselves, and therefore, Flex-N-Gate makes
no response to these statements. Flex-N-Gate has insufficien
either
admit
or deny the allegation contained in the third sentence of paragraph 16, and therefore
denies the same. To the extent that paragraph 16 states any further
allegations of fact,
Flex-N-Gate denies the same.
17. The regulation quoted in paragraph 17
of Complainant's Complaint speaks
for itself, and
therefore Flex-N-Gate makes no response to this allegation. To the extent
that paragraph 17 states any allegations of fact, Flex-N-Gate denies
the same.
5
18. Paragraph 18 of Complainant's Complaint states a conclusion of law
which does not call for a response. To the extent that paragraph 18 states any allegations
of fact, Flex-N-Gate
denies the
same.
19. Paragraph 19 of Complainant's Complaint states a conclusion of law
does not call for a response. To the extent that paragraph 19 states any allegations
of fact, Flex-N-Gate denies the same.
20. Flex-N-Gate
admits the allegations of paragraph 20 of Complainant's
Comp
21. Flex-N-Gate
admits the allegations of paragraph 21 of Complainant's
Complaint as they relate to solution attendants and lab technicians
at the facility. Flex-N-
Gate does not know what Complainant means by the term "line worker," as the facility
has no such position. Accordi y, Flex-N-Gate has insufficient information
to either
admit or deny the allegations of paragrap
of Comp
s Comp aint as
they
relate
to "line workers,"
and therefore denies the same. Flex-N-Gate denies any further factual
allegations of paragraph 21.
22. Flex-N-Gate denies that
azwoper-trained line workers
"determin[ed] that a hydrogen sulfide release was occurring," as alleged in
paragraph 22
of Complainant's Complaint. Flex-N-Gate does not know what Complainant means by
allegation that "[a] fter discovering the acid spill
... the
hazwoper-trained
line
workers began an immediate response," and therefore has insufficient information
to
either admit or deny this allegation, and
denies the same. Flex-N-Gate admits that
"[a]fter discovering the acid spill" an employee at the facility "paged safety." To the
extent that paragraph 22 of Complainant's Complaint makes any further factual
allegations, Flex-N-Gate denies the same.
23. In response to paragraph 23 of Complainant's Complaint, Flex-N-Gate
states that it does not know what
Complainant
means by the
term
"line
workers," and
therefore has insufficient information to admit or deny the allegations of paragraph 23 to
the extent they relate to "line workers," and denies
the
same. Flex-N-Gate
admits that
when the facility safety officer on duty at the tune of the separation of the pipe leading to
Tank
No. 8 arrived at the location of that tank after being paged, Complainant explained
to that safety officer that the pipe had separated, expressed Complainant's opinion that
the release of sulfuric acid had created hydrogen sulfide gas, and "requested that [the
safety officer] get a hydrogen sulfide probe." Flex-N-Gate
has insufficient knowledge as
to
why
Complainant made this request, whether "to determine whether the levels
[presumably of the alleged hydrogen
sulfide]
were
safe" or otherwise, and can neither
admit nor deny that Complainant made this request "to determine whether the levels were
safe," and therefore
denies this allegation. To the extent that paragraph twenty-three of
Complainant's Complaint states any further allegations of fact, Flex-N-Gate
denies the
same.
24. In response to paragraph 24 of
Complainant's Complaint, Flex-N-Gate
states
that it does not know what Complainant means by the term "line workers," and
therefore has insufficient
information to admit or deny the allegations of paragraph 24 to
the extent they relate to "line workers," and therefore denies the
same. Flex-N-Gate
further denies that the facility safety officer
on duty at the time of the separation of the
pipe "responded that he did not know what a hydrogen sulfide
probe
was,"
but admits
7
that the facility safety officer did at that time state to Complainant that he "did not know
whether [such a probe] was present at the facility." To the extent that paragraph 24 states
any other allegations of fact, Flex-N-Gate denies the same.
25. In response to paragraph 25 of Complainant's Complaint, Flex-N-Gate
states that
it
does
not know what
Complainant means by the term "line workers," and
therefore has insufficient information to admit or deny the allegations of paragraph 25 to
the extent they relate to "line workers," and therefore denies the same. Flex-N-Gate
admits that Respondent "told [the facility safety
officer on duty at the time of the
separation of the pipe] that hydrogen sulfide was a toxic gas, that the Urbana Fire
Department had a hydrogen sulfide probe, and that safety"
should consider evacu
the facility. Flex-N-Gate further admits that the safety officer contacted the plating
department manager regarding the issue and also
told all employees in the room of the
facility in which the chrome plating line is located to leave the room. Flex-N-Gate
further states that the safety
officer on duty at the time of the separation of the pipe has no
recollection of the discussion that Complainant alle regarding fans, and therefore,
Flex-N-Gate has
insufficient information to admit or deny Complainant's allegations
regarding such discussion, and denies the same. Flex-N-Gate further
has insufficient
information regarding whether "[s]afety then departed and was not seen again
by
the first
responders for the remainder of the immediate response,"
because (a) Flex-N-Gate does
not ktiow what Complainant means by the to
rst responders," (b) Flex-
-Gate
has
no knowledge as to what
the
"first responders,"
Complainant, or any other person
allegedly saw or did not see, and (c) Flex-N-Gate does not know what Complainant
means by the term "remainder of the immediate
response." Therefore, Flex-N-Gate
denies the allegations of the last sentence of paragraph twenty-five of Complainant's
Complaint.
To
the extent that paragraph
twenty-five
of Complainant's Complaint
states
any other allegations of fact, Flex-N-Gate denies the same.
26. In response to paragraph 26 of Complainant's Complaint, Flex-N-Gate
admits that employees "directed water hoses" onto the floor of the room in which the
°`chrome plating line" is contained. Flex-N-Gate further admits that after doing so, those
employees left that room. Flex-N-Gate further admits that the water "diluted the acid"
and any other substance on the floor of the room. Flex-N-Gate denies that the water
"washed" any material "to the hazardous waste treatment unit", as noted above, the floor
of the room constitutes part of a Wastewater Treatment Unit as defined in 35 I 1.
in.
Code
§
703.110.
Flex-N-Gate does admit that the
water
would have washed any material
on the floor further
es and tanks that also make up the Wastewater Treatment
the extent that paragraph 2
denies the same.
es any further allegations of fact, Flex-N-Gate
27. In response to paragraph 27 of Complainant's Complaint, Flex-N-Gate
states that it does not know what
Complainant means by the terms "line worker" or
"release."
Flex-
does admit that after the separation of the pipe and leak of
sulfuric acid onto the floor,
at
least
one employee reported to the facility safety officer
that he felt ill. To the extent that paragraph 27 of Complainant's
Complaint states any
further allegations
of fact, Flex-N-Gate denies the same.
COUNT I
OPERATION WITHOUT A RCRA PERMIT OR INTERIM STATUS
Flex-N-Gate reincorporates
and realleges its responses to Complainant's
Allegations Common to All Counts in response to Count I of Complainant's Complaint.
l.
Flex-N-Gate
denies
the
allegations of paragraph one of Count I of
Complainant's Complaint.
2.
Flex-N-Gate
denies the alleg
Complainant's Complaint.
ns
of paragraph two of Count I of
3.
The statutory section
cited in paragraph three of Count I of Complainant's
nt speaks for itself, and therefore Flex-N-Gate makes
no response to this
allegation.
To the extent that paragraph three of Count I of Complainant's
Complaint
states any allegations of fact, Flex-N-Gate denies the same.
4.
The regulations cited in paragraph four of Count I of
Comp
Camp speak for themselves, and
therefore
Flex-N-Gate
makes no response to this
allegation. To the extent that paragraph four of Count I of
Complainant's Complaint
states any allegations of fact, Flex-N-Gate
denies the same.
WHEREFORE, Respondent, FLEX-N-GATE
CORPORATION, prays that the
Illinois Pollution
Control
Board
find against Complainant on Count I of his
Complaint,
that Complainant take no g by way of Count I his
Complaint, and that the Illinois
Pollution
Control Board grant Flex-N-Gate all relief just
and proper in the premises.
COUNTS II THROUGH VI
By its
Order dated October 20, 2005, the Board granted Flex-N-Gate summary
judgment as to Counts II through VI of
Complainant's Complaint. Therefore, Flex-N-
Gate makes no answer to those Counts.
AFFIRMATIVE
DEFENSE
For its affirmative defense to Count I of Complainant's Complaint, Flex-N-Gate
states as follows:
l. The federal Resource Conservation and Recovery
Act ("RCRA"), 42
U.S.C. § 6901, et seq., sets forth requirements for the handling of
hazardous
waste.
oard has promulgated regulations that implement
the requirements
of RCRA in the State of Illinois.
One of
those
requirements
is that certain persons who handle hazardous
waste in Illinois obtain a permit from
the
Illinois
Environmental Protection
Agency.
However, under
the Board's regulations, certain persons who generate
hazardous waste in Illinois
are exempt from the requirement to obtain a
pennit.
Specifically, the Board's regulations establish several exemptions
to the
requirement
to obtain a RCRA permit,
These exemptions can apply to individual hazardous
waste streams at a
generator's fac
7.
Thus, a generator of hazardous
waste may manage some hazardous waste
streams under one exemption
to the RCRA permit requirement, and other
hazardous waste streams under a different
exemption.
35 Ill. Admin.
Code
§
703.123(e) provides in part that "[t]he following
persons are among those that
are not required to obtain a RCRA permit: . .
. (e) An owner or operator of ... [a] wastewater
treatment unit, as defined
Ill. Adm.
Code 720.110."
Il
9.
Flex-N-Gate's Guardian West facility relies in part on this Wastewater
Treatment
Unit ("WWTU") exemption to the RCRA permit requirement.
10. 35 111. Admin. Code § 720.110 defines "wastewater treatment unit" as "a
device of which the following is true:
It is part of a wastewater treatment facility that has
an NPDES
permit pursuant to 35 111. Adm. Code 309 or a pretreatment
permit
or authorization to discharge pursuant to 35 111. Adm. Code 310;
and
It receives and treats or stores an influent wastewater
that is a
hazardous waste as defined in 35 111. Adm. Code 721.103, or
generates
and accumulates a wastewater treatment sludge that is a
hazardous waste
as defined in 35 111. Adm. Code 721.103, or treats
or stores a wastewater treatment sludge that is a hazardous
waste
as defined in 35 111. Adm. Code 721.103; and
It meets
the definition of tank or tank system in this Section."
11. Flex-N-Gate's Guardian West facility contains
tanks and other
associated equipment in which wastewater is treated (the "facility
WWTU").
12. The facility WWTU treats wastewater
generated by various processes at
the facility, including, but not limited to, wastewater from
the "chrome
ng line" (identified in paragraph four of Complainant's
Complaint)
which is
the subject of this matter.
13. Flex-N-Gate's Guardian West facility has
been issued authorization to
discharge treated wastewater from the facility WWTU
to the Urbana
Champaign Sanitary District pursuant to 35111. Adm.
Code 310.
14. The facility WWTU
generates and accumulates a wastewater treatment
sludge.
15. This sludge is
a hazardous waste and is assigned the F006 code under the
Board's RCRA regulations.
The floor of the room at the facility in which the
plating line is located (the
"Plating
Room") is coated with an epoxy and is sloped
towards the center
of the room, where
two concrete pits are located.
17.
The Plating Room floor is deliberately designed
to convey material wh
falls
from the plating line to the floor into the pits in
the center of the floor.
12
18. The pits are constructed of concrete and are stationary devices.
19. Material that is collected in the pits in the Plating Room
floor is conveyed
to tanks for treatment via hard-piping and associated pumps and other
ancillary equipment.
20. The Plating Room floor and associated piping
and
other
ancillary
equipment from the pits to the wastewater treatment tanks, between the
wastewater treatment tanks, and between the wastewater treatment tanks
and the connection with the Urbana Champaign Sanitary District, meet the
definitions of tank
system
and
ancillary equipment set forth in 35111.
Admin. Code §720.110.
21. Pursuant to the WWTU exemption set forth in 35 Ill. Admin. Code
703.123(e), the facility is exempt from the RCRA permit requirement with
respect to any hazardous waste that might be present
on the Plating Room
floor.
22. Pursuant
to the WWTU exemption set forth in 35 Ill. Admin. Code
703.123(e), the facility is
exempt from the RCRA permit requirement with
respect to any hazardous waste
that might be present in the pits located in
that floor.
23. Pursuant
to the WWTU exemption set forth in 35 111. Admin.
Code
703.123(e), the facility is
exempt from the RCRA permit requirement with
respect to any hazardous waste that might be present
in ancillary piping
and other ancillary equipment between the pits and
the
wastewater
treatment tanks at the facility, between the wastewater treatment
tanks,
between the wastewater
treatment tanks and the connection with the
Urbana Champaign
Sanitary
District.
24. Pursuant to the WWTU exemption set forth
in 35 Ill. Admin. Code
703.123(e), the facility is exempt from the RCRA permit requirement with
respect to
any
hazardous
waste that might be present in the wastewater
treatment tanks at
the
facility.
25.
35 Ill. Admin. Code § 703.123(a) provides that "[t]he
following persons
are among those that are not required to obtain a RCRA pen-nit:
(a)
Generators that accumulate hazardous waste on-site for less
than the time
periods provided in 35 111. Adm.
Code 722.134."
26.
The facility relies on this generator accumulation
exemption for all other
hazardous waste
generated at the facility.
13
27. 35 111. Admin. Code § 722.134 allows generators to accumulate hazardous
waste in "containers" prior to the transportation of the waste to an off-site
facility for treatment, storage, or disposal.
28. 35 111. Admin. Code § 720. 110 defines "container" as "any portable device
ich a material is stored, transported, treated, disposed of, or
otherwise handled."
29. The facility accumulates all other hazardous waste generated at the facility
in portable devices which meet this definition of "container."
30. Pursuant to the generator accumulation exemption
set
forth in
35
Ill.
Admin. Code 703.123(x), the facility is exempt from the RCRA permit
requirement with respect to any hazardous waste that it accumulates in
containers prior to shipment for off-site treatment, storage or disposal.
CONCLUSION
WHEREFORE, Respondent FLEX-N-GATE CORPORATION, by its attorneys
HODGE DWYER ZEMAN, prays that Complainant take nothing by way of his
Complaint, and that the Illinois Pollution Control Board award FLEX-N-GATE
CORPORATION a
f just and proper in the premises.
Respectfully submitted,
FLEX-N-GATE CORPORATION,
Respondent,
By:/s/ Thomas
G. Safley
One
of Its Attorneys
Dated: November 15, 2005
Thomas G.
Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post
Office
Box
5776
ngfield, Illinois 62705-5776
(217) 523-4900
GWST:003/Fi]/Amended Answer
14
