ORIGINAL
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S
OFFICE
CHAMPAIGN COUNTY, ILLINOIS
MAY 1 12006
MORTON F . DOROTHY,
)
PSTATE OF
I
LLIOI
d
Complainant,
)
vs.
)
No . PCB 05-049
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
Respondent .
)
CERTIFICATE OF SERVICE
I, the undersigned, certify that, on the q day of May, 2006, I served the listed
documents, by first class mail, upon the listed persons :
AMENDED RESPONSE TO INTERROGATORIES
RESPONSE TO REQUESTS FOR PRODUCTION
Thomas G . Safley
Carol Webb
Hodge Dwyer Zeman
Hearing Officer, IPCB
3150 Roland Avenue
1021 North Grand Avenue East
Post Office Box 5776
Post Office Box 19274
Springfield, IL 62705-5776
Springfield, IL 62794-9274
Dorothy M . Gunn, Clerk
Illinois Pollution Control Board
James R
. Thompson Center
100 W
. Randolph
Suite 11-500
Chicago, Illinois 60601
~,
I?^Cv'a
I
- .
'~DOILJ'io
Y
Morton F . Dorothy, Complainant
Morton F . Dorothy
104 W
. University
Southwest Suite
Urbana IL 61801
217/384-1010
O R
F
~
F~T~1E ILLINOIS POLLUTION CONTROL
BOARDRER E10VED
f:HAMPAIGN
COUNTY, ILLINOIS
MORTON F . DOROTHY,
)
MAY 1 1 2006
Complainant,
Pollution
STATE OF
Control
ILLINOISBoard
)
vs .
)
No. PCB 05-049
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
Respondent.
)
AMENDED RESPONSE TO INTERROGATORIES
In response to Respondent's Motion to Compel dated April 13, 2006,
Complainant Morton F . Dorothy makes the following amended response to
Interrogatories propounded by Respondent on January 18, 2006
.
1 .
Complainant does not have detailed information to respond to this question,
apart from the documents produced by Respondent in discovery, which are in
Respondent's possession, and which are too voluminous to fully summarize
.
Evidence that Respondent is treating and storing hazardous waste includes the
following :
a
. Respondent has produced a "Contingency Plan" which represents that it
was prepared to meet the Board's regulations governing hazardous waste
management facilities in 35 III
. Adm
. Code 725 . (Response to Request for
Production No . 1, p
. 6-12)
b.
On January 19, 2001, The Illinois Environmental Protection Agency
conducted a RCRA inspection which found numerous violations of the
Board's rules governing hazardous waste management, including rules
governing the storage of hazardous waste, and violations of the
contingency planning requirements
. The Agency contended that, because
of the violations, the facility failed to qualify for exemption from the RCRA
permit requirement
. On May 3, 2001, Respondent answered the Agency
with a detailed letter promising to come into compliance with the
regulations, without raising any arguments to the effect that the facility
was not conducting hazardous waste management operations
. (Response
to Request for Production No
. 13)
c.
Respondent has produced manifests showing large quantities of
hazardous waste shipped out of the facility
. (Response to Request for
Production No . 9)
d .
In the course of job training, Complainant was told by Respondent's
agent's, in the course of business, that the facility was treating and storing
hazardous waste .
e .
Ken Keigley and Holly Hirchert of the Illinois Environmental Protection
Agency have told the Complainant that the facility was conducting
hazardous waste treatment and storage operations pursuant to a claim of
exemption as a large quantity generator of hazardous waste . Prior to
taking her position with the Agency, Holly Hirchert was the environmental
engineer for the Guardian West facility, with responsibility over many of
these hazardous waste management operations .
f.
Complainant was required to segregate certain wastes for separate
disposal as hazardous waste, including chromic acid contaminated
wastes from the area under the catwalk, and from the chromic acid
recovery operation, which wastes were placed in containers labeled
"hazardous waste", with storage times noted, by the Environmental
Manager at Guardian West.
2 .
The Complaint speaks for itself as to the allegation . The question calls for a legal
conclusion, and/or requests Complainant's work product
. Complainant contends
that the material under the catwalk, including liquids, debris and sludge, is
hazardous waste . At a minimum, this is chromic acid contaminated waste .
3 .
Pursuant to a Freedom of Information Act request, Illinois Environmental
Protection Agency has told the Complainant that the facility does not have a
RCRA permit or interim status . Ken Keigley and Holly Hirchert of the Illinois
Environmental Protection Agency have told the Complainant the same thing .
Respondent has failed to produce a RCRA permit or interim status notification in
response to discovery requests . See also the Response to Question 1
. The
remainder of the question calls for a legal conclusion, and/or requests
Complainant's work product .
4 .
Objection . The question calls for a legal conclusion, and/or requests
Complainant's work product .
5 .
Objection
. The question calls for a legal conclusion, and/or requests
Complainant's work product .
6 .
Objection
. The question calls for a legal conclusion, and/or requests
Complainant's work product .
7 .
Complainant generally agrees with this statement . However, Complainant does
not know exactly where the pits are located with respect to the center of the
room . Moreover, the pits are actually located to the east and west of the
approximate center of the room, and the floor under the tanks appears to be
sloped toward the line between the pits, rather than the apparent central point .
8.
Complainant agrees that this is a part of the purpose of the slope of the floor
.
9 .
Objection . The question calls for a legal conclusion, and/or requests
Complainant's work product .
10 .
Complainant generally agrees with this statement . However, the pits were not
designed to "hold" the liquid for a significant period of time, but rather to pump
the liquid immediately as it accumulated . By agreeing as to details concerning
the physical appearance and design of the equipment, Complainant is not
agreeing as to any regulatory interpretation hidden in Respondent's question .
11 .
Objection . The question calls for a legal conclusion, and/or requests
Complainant's work product .
12 .
Complainant agrees with this statement
. By agreeing as to details concerning the
physical appearance and design of the equipment, Complainant is not agreeing
as to any regulatory interpretation hidden in Respondent's question
13 .
Objection . The question calls for a legal conclusion, and/or requests
Complainant's work product .
14.
Complainant agrees with this statement
. By agreeing as to details concerning the
physical appearance and design of the equipment, Complainant is not agreeing
as to any regulatory interpretation hidden in Respondent's question
15 .
Objection . The question calls for a legal conclusion, and/or requests
Complainant's work product .
16 .
Objection . The question calls for a legal conclusion, and/or requests
Complainant's work product .
17 .
Objection . The question calls for a legal conclusion, and/or requests
Complainant's work product .
18 .
Complainant agrees with this statement
. By agreeing as to details concerning the
physical appearance and design of the equipment, Complainant is not agreeing
as to any regulatory interpretation hidden in Respondent's question
19.
Objection . The question calls for a legal conclusion, and/or requests
Complainant's work product .
20
.
As it now stands, the Complaint appears to be restricted to the issue of whether
Respondent has violated the storage time requirements for hazardous waste
under the catwalk . Under these circumstances, the Complainant will testify as to
the properties of the material under the catwalk, and as to the length of storage
.
In the event Respondent intends to offer testimony to the effect that the area is
periodically cleaned, or that the material is not hazardous waste, Complainant
will request subpoenas to obtain testimony of employees and former employees,
including Larry Kelly, Afiba Martin and Holly Hirchert .
21 .
Complainant has no funds with which to employ outside expert witnesses .
Complainant sees no need at this time for expert testimony . Complainant is,
however, an expert on much of the factual material at issue, and will, if
necessary, testify as an expert witness
. In a citizen enforcement action, the
Complainant has a right to testify about relevant matters at a public hearing
regardless of qualification as an expert Any objections would go to the weight of
the evidence . Complainant's relevant qualifications include :
a .
Bachelor of Science in Chemistry, with high honors and distinction in the
curriculum, University of Illinois, Urbana, Illinois, 1970 . Juris Doctor, 1976 .
b .
Between 1980 and 1993, Complainant drafted the Illinois versions of most
of the regulations involved in this case .
c .
Between 1980 and 1993, Complainant handled public questions
concerning these regulations for the State of Illinois .
d . Complainant attended numerous conferences and hearings concerning
the subject of hazardous waste management, both as an attendee and
speaker
.
e.
Complainant drafted numerous documents and reports concerning
hazardous waste, including theAnnual Reports to the Governor of the
Illinois Hazardous Waste Advisory Council .
f.
Complainant is a certified "HAZWOPER" first responder for hazardous
waste emergencies .
Complainant did process and quality control chemistry for the subject
plating line for nearly two years, during which time he was regularly
consulted by management concerning the operation and control of the
plating process .
9 .
22.
Other persons :
a
.
Tanvir Ali, Plant Manager, Guardian West, 601 Guardian Drive, Urbana IL
61802
b .
Ken Keigley, Holly Hirchert, Bill Child, Illinois Environmental Protection
Agency, 2125 South First Champaign IL
c .
Bill Keller, Champaign County Emergency Services and Disaster
Agency,1905 East Main Urbana IL 61802
d .
Unknown person, Urbana Fire Department, 400 S
. Vine, Urbana, IL 61801
e.
Mr. Thomas V . Skinner, Gary Westefer, US EPA Region 5, 77 W
.
Jackson Blvd ., Chicago, IL 60604
f.
Matt Dunn, Chris Perzan, Illinois Attorney General, 500 S
. 2nd, Springfield,
IL 62706
23.
No persons have assisted Complainant .
24 .
Complainant has claimed privilege in response to several of the above
questions
.
-00
Morton F . Dorothy, Complainant
VERIFICATION
STATE OF ILLINOIS
COUNTY OF CHAMPAIGN
Morton
104 W .
FUniversity
. Dorothy
Southwest Suite
Urbana IL 61801
217/384-1010
Morton F . Dorothy, being first duly sworn on oath, deposes and states, under
penalties provided by law pursuant to Section 1-109 of the Code of Civil Procedure, that
the statements set forth above in response to Respondent's Interrogatories are true and
correct, except as to matters herein 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.
Morton F . Dorothy, Complainant
Sv(3sacvu24~ 4-'gWVC W t ms 9A D#4-/ OF #`r+Vj?-dP4
"OFFICIAL SEAL"
TRAVIS M . YOUMANS
Notary Public, State of Illinois tj
My commission expires 06115/09
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVEDCLERK'S
OFFICE
CHAMPAIGN COUNTY, ILLINOIS
MAY 1
1 2006
MORTON F
. DOROTHY,
)
Pollution
STATE OF
Control
ILLINOISBoard
Complainant,
)
vs .
)
No. PCB 05-049
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
Respondent .
)
RESPONSE TO REQUESTS FOR PRODUCTION
Complainant Morton F
. Dorothy makes the following response to the Request for
Production propounded by Respondent on January 18, 2006
.
1 .
None
2 .
None
3 .
None
4 .
None
5 .
None
6 .
Correspondence with Agency, USEPA and other government agencies
:
8/28/04, Bill Keller, ESDA
8/31/04, Carolyn Wright, Agency
•
9/1/04, Bill Keller, ESDA
9/2/04, OSHA
•
9/2/04, Jan Ogden, Agency
9/3/04, Ken Keigley, Agency
9/8/04, Peggy Zweber, OSHA
9/10/04, Peggy Zweber, OSHA
9/17/04, Peggy Zweber, OSHA
10/4/04, Peggy Zweber, OSHA
10/4/04, Peggy Zweber, OSHA
10/12/04, Bill Keller, ESDA
10/25/06, Sue Ellen DeManche, OSHA
•
10/27/04, Peggy Zweber, OSHA
ORIGINAL
o .
10/27/04, Peggy Zweber, OSHA
p .
11/8/04, Bill Keller, ESDA
q .
11/30/04, Brian Bothast, OSHA
r.
4/24/05, Ken S. Welch, Occupational Safety & Health Review
Commission
s .
10/29/05, Tom Skinner, USEPA
t.
10/29/05, Bill Child, Agency
u .
10/29/05, Matt Dunn, Illinois Attorney General
v.
1/9/06, Chris Perzan, Illinois Attorney General
w.
2/13/06, Matt Dunn, Illinois Attorney General
7 .
See 6
8.
See 6
9
. None other than documents produced by Respondent .
10 . None other than documents produced by Respondent
11 . None other than documents produced by Respondent
12 . None other than documents produced by Respondent
13.
None other than documents produced by Respondent
Morton
I"F
.
oa-n
Dorothy, Complainant
\' . T)0dtq
ju
•i
v
^.
cz-
STATE OF ILLINOIS
)
COUNTY OF CHAMPAIGN
VERIFICATION
SS
Morton F . Dorothy, being first duly sworn on oath, deposes and states, under
penalties provided by law pursuant to Section 1-109 of the Code of Civil Procedure, that
the statements set forth above in response to Respondent's Requests for Production
are true and correct, except as to matters herein 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 .
P
W, ZTl)a {- _ I
zo
Morton F. Dorothy, Complainant
S
Jf3 Sc YL % t3o3
D .. C c„)p,-zA
off (My3y, uo
L
7V
(nohnt1 1Y€ s'9Ja~ure
onQj)
Morton F
. Dorothy
104 W . University
Southwest Suite
Urbana IL 61801
217/384-1010
Bill Keller
Champaign County ESDA
1905 East Main
Urbana IL 61802
Dear Mr . Keller:
Morton F. Dorothy
Morton F . Dorothy
804 East Main
Urbana IL 61802-2822
217/384-1010
M Dor4248@AOL
.COM
August 28, 2004
This is a request pursuant to the Freedom of Information Act, 5 ILCS 140
.
This request concerns the Guardian West facility, 601 Guardian Drive, Urbana,
Illinois . 35 III . Adm
. Code 725
.151 requires that this facility prepare a "contingency plan"
to deal with releases of hazardous waste or constituents
. This plan could be contained
within a similar OSHA-required plan
. Section 725
.153(b) requires that copies of the plan
be submitted to local emergency response teams
. The Urbana Fire Department has
told me that I should direct my information request to your office
.
I need to examine or obtain a copy of the contingency plan for the Guardian
West facility,
On or about August 7, 2004, a sulfuric acid spill at the Guardian West facility
resulted in a release of hydrogen sulfide gas from waste that had accumulated on the
floor under the spill
. Was this release reported to your office? Has a written incident
report been received or prepared?
Section 725
.154 requires that the owner or operator amend the contingency
following a failure of the plan
. Has Guardian West amended its contingency plan in
response to the failure of the plan with respect to the hydrogen sulfide release?
Sincerely,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 NORTH GRAND AVENUE EAST, P .O . Box 19276,
SPRINGFIELD, ILLINOIS 62794-9276, 217-782-3397
JAMES R . THOMPSON CENTER, 100 WEST RANDOLPH, SUITE 11-300,
CHICAGO, IL 60601, 312-814-6026
ROD R. BLAGOJEVICH, GOVERNOR
RENEE CIPRIANO, DIRECTOR
8/31/2004
Morton Dorothy
804 East Main
Urbana, IL
61802
Re
: FREEDOM OF INFORMATION ACT (FOIA) REQUEST -
OER # 0006268
This letter is in response to your request for public records pursuant to the Freedom of
Information Act ("FOIA") (5 ILCS 140/1 et
.seq.) processed by the Office of
Emergency Response .
Your request was received : 8/27/2004
.
You requested information about
: 601 Guardian Drive, Urbana, Champaign County
.
We searched the databases which index our files for information matching your
request
. That search identifed the following file(s)
: 20010070 .
After reviewing the Illinois EPA's files, and pursuant to Section 7 of FOIA and 2 II
.
Adm. Code 1828
.202, the Illinois EPA has determined that some of the public records
identified relative to your request are exempt from disclosure under FOIA
. A list of
these public records which are exempt from disclosure are identified in Attachment A
.
The remaining public records which are not exempt from disclosure are enclosed
.
Pursuant to 2 Ill. Adm. Code 1828
.505, you may appeal the denial to disclose some of
the public records requested by sending a written notice of appeal to the Director of the
Illinois EPA, postmarked within thirty (30) days of the date of this letter
.
Please contact me at 217/785-0830 for further assistance
.
Sincerely,
Carolyn Wrig t
FOIA Coordinator
Office of Emergency Response
cc: Enclosure(s)
ROCKFORD-4302 North Main Street, Rockford, IL 61103 -
(815) 987-7760
DES PLAINES-9511 W . Harrison St.,
Des Plaines, IL 60016 - (847) 294-4000
ELGIN -
595 South State, Elgin, IL 60123 -(847) 608-3131
• PEORIA - 5415 N
. University St
., Peoria, IL 61614-(309) 693-5463
BUREAU of LAND - PEORIA -
7620 N . University St ., Peoria, IL 61614- (309) 693-5462
• CHAMPAIGN -
2125 South First Street, Champaign, IL 61820-(217) 278-5800
SPRINGFIELD-4500 S . Sixth Street Rd
., Springfield, IL 62706- (217) 786-6892
COLLINSVILLE- 2009 Mall Street, Collinsville, IL 62234- (618) 346-5120
MARION-2309 W
. Main St ., Suite 116, Marion, IL 62959-(618) 993-7200
PRINTED ON RECYCLED PAPER
Or: B.
Nothing was redacted/exempt (withheld) :
*Reasons for redacted/exempt (withheld)
1
. Information privileged against introduction in judicial proceedings, 2 III . Adm . Code 1828 .202(a)(t)(L).
2
. Investigatory records compiled for enforcement purposes, 2 111 . Adm. Code 1828
.202(a)(1)(C)
.
3
. Internal communications of the Agency that are preliminary drafts, notes, recommendations, memoranda,
and/or other records in which opinions are expressed, 2 111
. Adm . Code 1828 .202(a)(1)(E) .
4
. Information which, if disclosed would constitute a clearly unwarranted invasion of personal privacy
(i .e ., the
identity of persons who make oral or written complaints or provide information to the Agency), unless such
disclosure is consented to in writing by the individual subjects of such information, 2 Ill
. Adm . Code
1828.202(a)(1)(B)
.
5
. Information determined to constitute trade secret(s) or confidential business, 2 III
. Adm . Code
I828.202(a)(1)(F)
.
6
. Information determined to constitute security sensitive document(s), 2 111
. Adm . Code 1828 .202(J) .
`Dice of Emergency Response signature
:
O
I t`-Date
: 0-3I-OH
Date of last document reviewed
:
y- (p-OI
Updated :
IL 532-2705
OCS
010 Rev
. 1/2003
Attachment A
LIST OF REDACTED/EXEMPT DOCUMENTS
I have reviewed the documents in the files of Office of Emergency Response of the Illinois Environmental
Protection Agency
:
A
. Consistent with the obligations of the Agency under 2 III . Adm
. Code 1828 and Section 7 of the
Environmental Protection Act (415 ILCS 5/7 (2001), I have removed the following documents, or portions
of documents, from the publicly releasable portion of this file
: aQO I Co
jO
in/ e r
Document
I )'r
Date
General Description of Document
* Reason
Redacted
*
Reason
Exempt
(Withheld)
L 0'
mA
I
u-a-ol c
•0 '&u ri
I ue
mQ.mo
a,
INCIDENT
STATUS
SUMMARY
IEMA INCIDENT ID
City
IJ~
rloar
.
PRP
G
tAa-f
~ q~ W esf
County ~,110.v
1^
Initial Evaluation
EXEMPT IN
PART
ReviewerOISU) .
Date
f5-O9
1 .
Y
Actual
( )
Potential
2 .
(A On Site
( ) Off Site
( ) Transportation
3 .
( ) Air
( ) Storm Sewer
( )
Surface Water
( ) Sanitary Sewer
( ) PWS
( )
Inside,Building
%'
Soil/Ground Water
( ) Impervious Surface
4.
( ) Abandoned Material ( ) HWF ( ) CSA
( ) O en Burnin Permit ( ) Oil Production
( )
Agricultural
( ) PCB
5.
Initial
(
Evaluation
)
Immediate
DateIEPA
_L1
on-scene
) 7 /O Byresponse
RE
by
dATq"
: SS
ENTRY
FAXED TO REGION
JAN
J02001
*****
*************
Emergency R
( ) Referral to:
espouse
() LUST ( ) BOA (.~`fiOL ()
BOW
********************ASSOCIATED FILES********************
( ) See VN File E-
See Enforcement File
0
I
7
U
IL 532 0235
APC 191 Rev . 11-99
Printed on Recycled Paper
()
LUST
JAN-1.6-2001 TUE 09 :48
AM IEMA
Incident
Illinois HazMat Report Incident #
: H 2001 0070
Entered by Hugo Sultan on 01/16 at 09
:36
Incident Type
:
Illinois HazMat Report
Data Input Status:
Open 0 Close
Incident Level:
S
Main Incident C Sub-Incident
FAX NO,
2177827774
EM12000
Incident Recorder
P
. 01/01
1
. Caller: JACKIE CHRISTENSEN
14
. On Scen Contact : JACKIE CHRISTENSEN
2
. Call back phone#
: 217/278-2435
On Scen, Phone #
: 217/278-2435
3. Caller Represents
: GUARDIAN WEST
15. No. Injw
:d : NONE
4
. Type of Incident
: LEAK OR SPILL
Where T ken :
5. Incident Location
Street: 601 GUARDIAN DRIVE
City: URBANA IN
County : CHAMPAIGN
Milepost :
Sec.:
Twp . :
Range :
16. Public hi in risks and/or precautions taken,
including # evacuated: NONE
17 .
Assistan aneeded from State Agencies : NONE
6. Area Involved: FIXED FACILITY
7 .
Material (s) Involved
:
ACETONE/TOLULENE/AUTO PAINT MIXTURE
Material Type : LIQUID
CAS# : UNK
UN/NA#: 1090 (ACETONE) 1294 (TOLULENE)
1263 (PAINT RELATED MIXTURES)
Is this a 302 (a) Extremely Hazardous Substance?
NO
Is this a RCRA Hazardous Waste? YES
Is this a RCRA regulated facility? YES
18. Contain
Lent/cleanup
actions and plans :
CONTRAC1 OR TO BE HIRED
19
. Weather OVERCAST
Temp .
: 35 deg, f/ Wind Dir
. LINK / Speed LINK
m.p.h.
8. Container: DRUM
Container Size: 55 GALS.
20
. Responi ble Party : GUARDIAN WEST
Contact ?erson: JACKIE CHRISTENSEN
Phone A 217/278-2435
Mailing Address: P.O . BOX 877, URBANA, IL
61803
9
. Amount Released : 40 GALS.
Rate of Release : /min.
10
. Cause of Release
: FORKLIFT PUNTURED
DRUM
11
. Estimated Spill Extent : 150-200 SQUARE FEET Notification : TEPA/OSFM/REGION 7
12 . Occurred -
Date:
Time :
Discovered - Date: 01/12/2001 Time: 16 :00
13. Emergency Units Contacted - NONE
Fire: -
Police : -
Sheriff: -
ESDA: -
On Scene - ZONE
Fire : -
Police: -
Sheriff: -
ESDA: -
March 8, 2001
Jackie Christensen
Guardian West
P 0 Box 877
Urbana, 11
. 61803
Incident Verification Letter
Re
: 20010070
Dear Ms
. Christensen:
On January 16, 2001, this office received information that you or an organization that you
represent were involved in an environmental incident that occurred at or near 601 Guardian Dr
on or before January 12, 2001
. Our records currently indicate the release of 40 gallons of paint
related materials .
Your assistance is requested in confirming, correcting and completing the public records
regarding the circumstances of this incident
. Include with your submission all of the following
:
•
a description of the incident circumstances
a
any mitigation actions taken at the time of the release
•
a description of additional cleanup which has taken place or is planned
•
if cleanup and disposal have not been completed when
you
submit the report, include
with this report an estimated time schedule for completing such actions
. Upon
completion, please submit a final report showing how cleanup and disposal were done
•
Please reply within thirty (30) days from receipt of this letter
. Make your reply to Illinois
Environmental Protection Agency, Emergency Response Unit, Mail Drop #29, P
.O. Box
19276, Springfield, IL 62794-9276
.
Please refer to the incident number in all correspondence on this incident
. Should you have any
questions concerning the incident verification please contact the undersigned at 217/782-3637
.
Sincerely,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 NORTH GRAND AVENUE EAST, P .O .
Box]
9276, SPRINGFIELD, ILLINOIS 62794-9276
THOMAS V . SKINNER, DIRECTOR
Ralph E. Foster, Senior Emergency Responder
Emergency Operations Unit
GEORGE H
. RYAN, GOVERNOR
GUARDIAN 40 WEST
April 6, 2001
ertified Mail 7099 3400 0007 305(-
RECEIVE
,
Mr . Ralph E
. Foster
APR - 9 2001
Illinois Environmental Protection Agency
Emergency Response Unit, Mail Drop # 29
I E PA
P.O. Box 19276
Office of Emergency Response
Springfield, IL 62794-9276
RE : Incident 20010070
Dear Mr . Foster,
I am supplying the requested information for the release of approximately 40 gallons of paint
related materials on property of Guardian West, 601 Guardian Drive, Urbana, IL 61802
. The
exact date of the release is unknown but most likely occurred between January 5, 2001 and
January 12, 2001
.
A drum containing solvent and paint wastes was punctured by a forklift, near the bottom of the
drum
. The released material flowed along a paved area and into the grassy area and down a slight
slope . The ground was frozen and there was a cover of snow on the ground during the time frame
of the incident
. The snow was stained a light pinkish color
.
On January 15, 2001 the drum was overpacked to prepare for disposal of the container
. A trench
was dug at the bottom of the slope and absorbent socks placed in the trench to prevent runoff
during a thaw .
On February 8, 2001, Bodine Environmental Services performed clean up of the area
. The
pavement was power washed and the water recovered for disposal
. Eight drums were sent out
under manifest IL9352476 to PCI for disposal
. Approximately 50 cubic yards of soil were
excavated and placed in roll-off boxes
. The cavity, approximately 50 feet by 20 feet, was tested
during excavation using a PD . Soil samples were also tested as required for profiling into PDC,
Area I, Peoria, IL. The soil will be transported to the landfill during the week of April 16th,
2001
.
If you need additional information, please contact me at 217-278-2435
.
Sincerely,
ackie Christensen
Environmental Manager
217-278-2400 P.O
. Box 877 601 Guardian Drive Urbana, IL 61803 217-278-2430 Fax
Bill Keller
Champaign County ESDA
1905 East Main
Urbana IL 61802
Dear Mr
. Keller :
Thank you for your prompt response to my August 28, 2004, request for
information concerning the contingency plan for the Guardian West facility
.
This is to confirm that I have received from you this day a copy of the
"Emergency Response and Contingency Plan" for the Guardian West facility, dated
May, 2001, with the most recent revision dated October, 2003 .
This is also to confirm your statement that you have received no incident report
concerning the sulfuric acid spill and hydrogen sulfide release incident that happened
on or about August 7, 2004
.
Sincerely,
Morton F . Dorothy
Morton F . Dorothy
804 East Main
Urbana IL 61802-2822
217/384-1010
M Dor4248@AOL .COM
September 1, 2004
U .S
. Dept. of Labor
OSHA
2918 W. Willows Knolls Rd
Peoria IL 61614
Re :
Guardian West, Urbana, Illinois
Dear OSHA :
This letter concerns the Guardian West facility, 601
Guardian Dr ., Urbana, IL .
I worked at Guardian West as a lab tech on the plating line from November,
2002, to August, 2004
. My employment was terminated on August 13, 2004, following a
hazardous substance release incident
. I have attached a narrative account of the
incident .
Guardian West is a large quantity generator of hazardous
waste. US and Illinois
EPA rules require it to maintain a contingency plan to deal with
hazardous waste
releases. I believe OSHA rules also require similar contingency
plans .
This incident started about 4 a .m. on August 5, 2004, when a
sulfuric acid pipe
broke, spilling concentrated sulfuric acid onto the floor under the plating tanks
. The acid
began reacting with waste on the floor, producing hydrogen sulfide, a toxic gas .
The spill is believed to have "emptied the day tank" of sulfuric acid
. This tank is
located under the catwalk. I believe it normally contains more than 100 gallons of
concentrated sulfuric acid, weighing more than 1000 pounds
.
I have received 24-hour OSHA "hazwoper" training . This training was
administered by the Guardian West Safety Office
. My understanding is that I was to
contact the safety officer in the plant and begin taking immediate response
. Because I
was the employee that was most familiar with the plating chemicals and their properties,
I was expected to then assist safety and other responders .
I had safety paged as soon as I became aware of the release .
I asked safety to
get a hydrogen sulfide probe . Safety responded that he did not know what a hydrogen
sulfide probe was, and did not know whether we had one . I replied that the Urbana Fire
Morton F . Dorothy
804 East Main
Urbana IL 61802-2822
217/384-1010
M
Dor4248@AOL .COM
September 2, 2004
Department had one
. I re-explained the potential seriousness of the situation, and
suggested that he needed to consider evacuation of the area
. Safety suggested that
people be kept back from the immediate area
. He asked if fans would help
. I said we
had none .
Safety then departed
. I believed he had gone to find a hydrogen sulfide probe,
and to arrange for fans
. I later saw him the other end of the plant apparently attending
to routine matters
. Safety did not return to the spill site while I was involved in the
response
. If safety, or anyone else, made a determination that the hydrogen sulfide
levels were safe, they did not communicate that finding to me
.
I laid out water hoses to dilute the spill and wash the waste toward the sump, to
be pumped to the hazardous waste treatment unit
. When maintenance arrived to repair
the spilled acid pipe, I told them that, since the acid was no longer leaking, and since
we had no immediate need for the acid line, they should not attempt to repair it until we
were certain that the gas levels were safe
. Since I was sick from the gas, I left the
building for fresh air
. Other workers in the area reported being sickened and also left
.
Two days later I was "written up" because of my decision to delay the repair of
the pipe, and because I left the lab to respond to the spill
. This led to termination of my
employment a few days later .
Champaign County ESDA provided me with a copy of the current contingency
plan for this facility
. Guardian West failed to carry out any portion of the contingency
plan
. Safety failed to notify the emergency coordinator, and failed to take over the
response from me
. Nor was any effort made to identify the amount and extent of the
release.
Because the contingency plan failed in this emergency, Guardian West is
required to amend the plan to address the failure
. The Champaign County ESDA office
has told me that, as of September 1, 2004, they had not received an incident report or
an amended contingency plan from Guardian West
.
The plan does not specifically address the possibility of a hydrogen sulfide
release
. I believe the process may have changed so as to create a new risk due to the
introduction of a new chemical additive, "HSA -90" ("high sulfur additive-90")
. Another
possibility is that Guardian West has allowed sludge beds to accumulate in the sump
area, and that the sulfate in these sludges has undergone chemical or biological
conversion to sulfide
.
The contingency plan needs to be amended to address the possibility of this type
of hydrogen sulfide release
. The plan needs to require the availability of a hydrogen
sulfide meter, and to require the safety office to be trained in its use
.
Now that Guardian West has had a hydrogen sulfide release incident, they need
to measure for hydrogen sulfide before confined space entry, especially the tank in
which the HSA-90 is being used (Tank 20) .
At the OSHA 24-hour training that I received, I was told that I was expected to
respond to this type of a release. I believe that Guardian West's position that I should
not have taken action violated the contingency plan and OSHA rules .
My immediate supervisor was Sheryl Drake, the team leader for the plating lab
.
She also received the 24-hr OSHA training . In her handling of this incident she did
several things that demonstrate a total lack of appreciation for emergency response
.
Her position that I should have stayed in the lab, working alone in an isolated location
after detecting a toxic gas release is reckless, if not homicidal
. Her attitude toward the
advisability of sending maintenance men in without an all clear is also reckless
. Her
attitude that I should not have responded at all shows that, had the incident happened
on her shift, she would have refused to respond
. At a minimum, Sheryl Drake, needs to
be required to repeat the OSHA 24-hour training .
I would appreciate it if OSHA would visit this site to determine if the contingency
plan and OSHA rules have been followed in connection with this incident
. I would be
happy to meet with you to discuss the matter, or to provide more information .
Sincerely,
Morton F . Dorothy
e
September 2, 2004
Mr. Morton Dorothy
804 East Main
Urbana, IL 61802
RE : Freedom of Information Act Request
L0191055145-Champaign/Guardian West
Dear Mr. Dorothy :
This letter is in response to your Freedom of Information Act ("FOIA") (5 ILCS 140/1 et
.seq .)
request received by the FOIA sector, Bureau of Land, at the Illinois Environmental Protection
Agency ("Illinois EPA") on August 27, 2004 .
After reviewing the Illinois EPA's files, and pursuant to Section 7 of FOIA and 2 Ill
. Adm
. Code
1828
.202, the Illinois EPA has determined that some of the public records requested are exempt
from disclosure under FOIA .. Attached is a list of the public records, which are exempt from
disclosure
. The public records, which are not exempt from disclosure, are enclosed .
Copied: 65 pages paper
Pursuant to 2 Ill. Adm . Code 1828.505, you may appeal the denial to disclose some of the public
records requested by sending a written notice of appeal to the Director of the Illinois EPA,
postmarked within thirty (30) days of the date of this letter
.
If you have any questions concerning this matter, please contact me at (217) 782-9878
.
Sincerel
aii C)Arw
Jan Ogden, FOIA Coordinator
Records Management Unit
Bureau of Land
JO:alt
ROCKFORD -4302 North Main Street, Rockford, IL 61103-(815) 987-7760 • DES PLAINES-9511 W
. Harrison St ., Des Plaines, IL 60016-(847) 294-4000
ELGIN-595 South State, Elgin, It 60123-(847) 608-3131 • PEORIA-5415 N . University St., Peoria, It 61614-(309) 693-5463
BUREAU OF LAND - PEORIA - 7620 N . University St ., Peoria, IL 61614-(309) 693-5462
CHAMPAIGN -2125 South First Street, Champaign, IL 61820-(217) 278-5800
SPRINGFIELD-4500 S
. Sixth Street Rd ., Springfield, IL 62706-(217) 786-6892
••
COLLINSVILLE-2009 Mall Street, Collinsville, IL 62234 - (618) 346-5120
MARION-2309 W . Main St ., Suite 116, Marion, IL 62959 -(618) 993-7200
PeINrro ON RrCYCLED PAPFR
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 NORTH GRAND AVENUE EAST, P .O . Box 19276, SPRINGFIELD, ILLINOIS 62794-9276, 217-782-3397
JAMES R . THOMPSON CENTER, 100 WEST RANDOLPH, SUITE 11-300, CHICAGO, IL 60601, 312-814-6026
ROD R . BLAGOJEVICH, GOVERNOR
RENEE CIPRIANO, DIRECTOR
Facility Name
Documents Exempt from Public Disclosure
File No
. L D L
SD
County
Ck pttct t-AjjU
4,c5e 4A
&&Sr
The following documents have been removed and have been placed in a file folder marked
"Documents Exempt from
Public Disclosure ."
17.
L__1
1828 .202(a)(1)
18 .
[__i 1828 .202(a)(1)
19 .
_ _1_-! t828202(a)(1)
20.
j 1828 .-02(a)(1)
.irsuant to 2 ILL .IAdm .Code 1828 .505, you may appeal ti
.e denial to disclose some or all of the public records requested by sending
a written Notice Of Appeal to the Director of the I Ilinois EPA
. post marked withic thirty (30) days of the date of the denial letter
.
IL 532-2681
LPC 593 6/2000
Page t -
3.
Document
Date
/,7 Z49,11
Specific Description
Of Document
DL/9 x4-,
Exempt
Review Date
Cat .
Pursuant To
And Initials
101 11828 .202(a)(l((3)(J) )0q-o9-zto 1,
Q~l/0D/
&Ajrl CNcy /'4A
__JA1828
.202(a)( X(I') )/0-La 20021K1Q
()FS~277601
2o of
IIUQEi11C~/
[tom J 1828 .202(a)(1QL/()/ )/(1-ZS ZCt2vttb
HMI
D$12-c//ZOO [
2C$JYI N
jl~j 1828 .202(a)(l01)t
)/0'2V 2602WD
/
&icC ~1i411~
It$J t9
1828 .202(a)(l4!XV) /0 d/
-ZOOZa t
1Q/,Zoo
;
eo&yl u~t
W14AI
jt/
1182t
;
.202(a)(
exdj)
)ey-1
'~2aoIKOzb
[
J 1828 .202(a)(1)
)
~
11828 .202(a)(1)
)
9.
U
1828 .202(a)(1)
10.
~
I1828 .202(a)(1)
II .
1__-I
1828 .202(a)(1)
12.
[_ 11828 .202(a)(1)
13 .
~_ 1 1828 .202(a)(1)
14 .
1828.202(a)(1)
15 .
[
11828 .202(a)(1)
16.
_
[
11828 .202(a)(1)
Mr . Ken Keigley
Illinois EPA
2125 South First
Champaign IL 61820
Re:
Guardian West, Urbana, Illinois
Dear Mr
. Keigley :
This letter concerns the Guardian West facility, 601 Guardian Dr
., Urbana, IL .
I have attached a copy of the Emergency Response and Contingency Plan for
the above facility
. Champaign County ESDA gave me this copy on September 1, 2004 .
The copy is dated May, 2001, and was last revised in October, 2003
.
I have also attached a narrative account of the acid spill/hydrogen sulfide release
of August 5, 2004
.
In our conversation of September 2, you indicated that Guardian West is now
denying that a hydrogen sulfide release took place
. Your statement is the first indication
that I have had that Guardian West is denying that a hydrogen sulfide release took
place
. In all of my discussions with them up to this time, nobody has claimed that I was
wrong about the hydrogen sulfide .
I became dizzy, disoriented and nauseated from the gas
. The solution attendant
Joseph reported the same thing to me
. Several of the workers in the load/unload area
also reported being sickened, and were allowed to go to the break room to get away
from the gas
.
You shouldn't let Guardian West place the burden of proof on the Agency in this
situation
. All the information that was available to Guardian West at the time of the
incident indicated that a hydrogen sulfide release was taking place
. They were
obligated to carry out the contingency plan, which required them to assess the nature
and extent of the release
. The rules would be meaningless if the operator were able to
get away with "we failed to assess the nature and extent of the release so therefore it
never happened
."
Morton F
. Dorothy
804 East Main
Urbana IL 61802-2822
217/384-1010
MDor4248@AOL .COM
September 3, 2004
This incident began around 4 am on the morning of August 5, 2004 . The people
who were present were Afiba Martin, Joseph, the safety officer and myself
. Afiba,
Joseph and the safety officer made statements to me at the time that demonstrated that
they did not understand what was happening . On the other hand, I have a degree in
chemistry, and have dealt with hydrogen sulfide before . There were no other witnesses .
Guardian West can hire a thousand experts to argue that it wasn't hydrogen sulfide, but
they weren't there
. I was there, I smelled it, I know what hydrogen sulfide smells like
and I am the only one qualified to testify .
On page 6-4 of the Contingency Plan, I was a "Department Associate trained to
provide response capabilities within their own department" . This is why I was sent to
OSHA 24-hour training
. My responsibilities included "Emergency recognition and
determination of the level of spill response involvement" . I made the call that there was
a hydrogen sulfide release, and nobody said I was wrong at the time . My determination,
right or wrong, required that the contingency plan be carried out . If management wanted
to contradict this, they should have taken steps "to assess the nature and extent of the
release" .
My immediate supervisor was Sheryl Drake . When she came in on the morning
of August 5, I heard her explaining the situation to the first shift . Larry Kelly asked her
why a sulfuric acid spill smelled like that, sulfuric acid didn't smell like that . Sheryl
explained to Larry that the acid was reacting with something on the floor to produce
hydrogen sulfide . At that time she clearly agreed with me .
As to the volume of the spill, I was later told that the spill "emptied the day tank"
of sulfuric acid
. This tank is located under the catwalk
. I believe it normally contains
more than 100 gallons of concentrated sulfuric acid, weighing more than 1000 pounds
.
The reportable quantity listed on page 6-10 of the plan is 100 pounds .
Nobody actually saw the acid leaking since the leak had stopped before we
found it . A joint in a plastic pipe with a diameter of 1
.5 to 2 inches had separated . The
pipe was pointing upwards, with the separation near the top of the tank, somewhere
near Tank 8 . The acid completely cleaned the corrosion off the bare conductor bars
near the tank . This showed that the spray was more than three feet wide near the
separation, and that it continued for long enough to clean the heavily corroded
conductors to bare metal .
Another puzzle is the source of the sulfide . The plan does not specifically
address the possibility of a hydrogen sulfide release, which I did not myself foresee as
a risk
. I believe the process may have changed so as to create a new risk due to the
recent introduction of a new chemical additive, "HSA -90" ("high sulfur additive-90")
which includes reduced forms of sulfur
. Another possibility is that Guardian West has
allowed sludge beds to accumulate in the sump area, and that the sulfate in these
sludges has undergone chemical or biological conversion to sulfide .
The concrete pad under the tanks, where the spill occurred, has never been
cleaned in the last two years
. The sludge beds are never removed
. There is standing
water down there even after a two-week shut down
.
Sincerely,
Morton F . Dorothy
U .S. Department of Labor
Occupational Safety and Health Administration
2918 Willow Knolls Road
Peoria, Illinois 61614
PH : (309) 589-7033
FAX
: (309) 589-7326
September 8, 2004
Morton Dorothy
804 East Main
Urbana, IL 618022822
Re :
Guardian West
Complaint No . 204985014
Dear Mr . Dorothy :
The purpose of this letter is to acknowledge receipt of your formal complaint and to inform you
that an inspection of the workplace will be scheduled as soon as possible, in accordance with the
priorities established by the agency . You will be informed of the results of our inspection when
they are available .
Section 11(c) of the OSH Act provides protection for employees against discrimination because
of their involvement in protected safety and health related activity . If you believe you are being
treated differently or action is being taken against you because of your safety or health activity,
you may file a complaint with OSHA . You should file this complaint as soon as possible, since
OSHA normally can accept only those complaints filed within 30 days of the time you
learn of
the alleged discriminatory action.
Thank you for your interest in workplace safety and health .
IV
ectfully,
Peggy A . Zweber
Area Director
Peggy A . Zweber, Area Director
U .S . Dept
. of Labor, OSHA
2918 W. Willows Knolls Rd
Peoria IL 61614
Re :
Guardian West, Urbana, Illinois
Dear Ms
. Zweber:
Thank you for your response of September 8, 2004 .
As I indicated in my letter of September 2, 2004, I was "written up" because of
my decision to delay the repair of the pipe, and because I left the lab to respond to the
spill
. This led to termination of my employment on August 13, 2004
. I believe I was
discriminated against because I followed the contingency plan and OSHA rules
. I
believe action was taken against me because I followed OSHA requirements
. Please
treat this and my earlier letter as a formal complaint about discriminatory action in
violation of Section 11(c) of OSHA
.
Having thought about this for another week, I would like to add one point to my
prior letter
. My immediate supervisor was Sheryl Drake
. Her actions in "writing me up"
for responding to the spill could be explained on the basis that she believed that I was
supposed to respond only to spills in the lab, not to spills on the line
. If this is her
position, it contradicts what I was told in the OSHA 24-hour training I received
. I was
told that I was expected to respond to spills on the line, mainly because the lab tech is
usually the only person with the specialized knowledge of the identity and properties of
the chemicals used on the line
. In addition, the team leader on the line, who had also
received OSHA 24-hour training, specifically asked me to assist him
.
Thank you for your assistance in this matter
.
Sincerely,
Morton F
. Dorothy
Morton F . Dorothy
804 East Main
Urbana IL 61802-2822
217/384-1010
M Dor4248@AOL .COM
September 10, 2004
U.S. Department of Labor
Occupational Safety & Health Administration
Peoria Area Office
2918 Willow Knolls Road
Peoria, IL 61614
(309) 671-7033
Fax : (309) 671-7326
September 17, 2004
Morton F . Dorothy
804 East Main
Urbana, IL 61802-2822
Dear Mr. Dorothy:
This is to confirm that we received your complaint on September 13, 2004.
The complaint has been administratively closed by this office . As discussed during our
telephone conversation on September 15, 2004, your complaint does not allege activity
protected under 29 CFR 1977 .15, §11(c) of the OSHA Act .
Any disagreement with this determination must be communicated to this office as soon
as possible . If any further assistance is needed, please do not hesitate to call or write .
Sincerely,
4;
r
Peggy Zweber
Area Director
Peggy A . Zweber, Area Director
U .S . Dept . of Labor, OSHA
2918 Willows Knolls Rd
Peoria IL 61614
Re :
Guardian West, Urbana, Illinois
OSHA Complaint No . 204985014
Dear Ms . Zweber :
Thank you for your letter of September 24, 2004, together with fax of September
14, 2004 from Guardian West to OSHA, and memorandum to Guardian West
employees dated September
10(?), 2004.
The fax is not signed
. I don't think I should be required to answer claims that are
not even signed
. OSHA needs to back up and require that Guardian West provide a
signed copy .
It appears that OSHA has required Guardian West to post a notice to employees
that OSHA has received a complaint
. This notice contains several factual errors, which
are listed and discussed in the attached document
. The first problem is that Guardian
West has falsely characterized the nature of the complaint
. The second problem is that
Guardian West has used the notice as a platform to make false statements about the
incident.
I am uncertain as to OSHA's rules as to this notice
. At a minimum you need to
require them to post the notice again with a correct characterization of the complaint
:
That there was an acid spill which reacted with hazardous waste on the
floor, causing a release of a toxic gas, hydrogen sulfide, and that
Guardian West failed to follow the contingency plan and related rules in
responding to the incident
.
Beyond this, I do not believe that Guardian West should be allowed to use the OSHA-
required notice as a platform to make false statements
. At a minimum they should
preface these statements with language such as "Guardian West denies that there was
a hydrogen sulfide release," so that employees would not construe the statements as
Morton F . Dorothy
804 East Main
Urbana IL 61802-2822
217/384-1010
M
Dor4248@AOL .COM
October 4, 2004
OSHA findings .
As to the substance of the statements made in the notice and
fax, it appears that
Guardian West is denying that the gas release took place,
is claiming that the spill was
of dilute acid from the discharge pipe from tank 8, and is claiming
that they do not have
chemicals capable of producing hydrogen sulfide
. These statements are false, as
discussed in the attachment
.
Guardian West has also made a number of false statements in these
documents
about me personally
. I do not believe these are relevant to the
OSHA complaint, and
will not answer them at length, unless you request that I do so
. These statements do,
however, reflect negatively on the credibility of Guardian
West's other assertions .
I have filed a formal complaint with the State alleging violation of the
environmental rules related to this incident . If OSHA is able to
move quickly to remedy
this situation, I will withdraw that portion of the environmental complaint
.
I have attached the following documents :
A short outline of the false statements, with a short response
.
2 .
A copy of the Contingency Plan provided to me by ESDA
.
3 .
A copy of my formal complaint to the State concerning the violation
of
environmental rules .
Sincerely,
Morton F . Dorothy
RESPONSE TO MEMO AND FAX OF SEPTEMBER 2004
The following points relate to the "memorandum" to Guardian West employees
apparently dated September 10, 2004, and faxed to OSHA on September 14, 2004
.
4.
"The complaint was that we had a Hazardous Waste spill
. .."
a .
The complaint did not allege a "hazardous waste spill"
. The complaint was
that there was an acid spill that reacted with hazardous waste on the floor
to produce hydrogen sulfide gas, and that Guardian West failed to follow
the contingency plan and related rules in responding to the spill and
release .
5 .
"We did not have . . .
a release of hydrogen sulfide gas at any time
."
a .
There was a hydrogen sulfide release at about 4 a
.m
. on the morning of
August 5, 2004
b .
I am a qualified expert in this area, and am prepared to testify that there
was a release of hydrogen sulfide
. Do they have any qualified witnesses
that could testify otherwise?
6 .
"We did have a break in one of the discharge pipes in the chrome plating
department tank #8 which has a diluted sulfuric acid content
. . ."
a .
The break was on the pipe used to add concentrated sulfuric acid to the
tank, not on a discharge pipe
.
b .
The pipe that broke contained concentrated sulfuric acid
.
c.
This was my analysis of the situation at the time, which was confirmed by
all my discussions with plant personnel up to the time I was suspended
. .
7 .
"We do not have any chemicals that would produce hydrogen sulfide gas
."
a .
Guardian West has started using a new chemical "HSA (High Sulfur
Additive) -90" in Tank 20
.
i.
This chemical contains reduced sulfur, and may be capable of
generating hydrogen sulfide
. I was terminated from my employment
at Guardian West before I was able to test this chemical to see if it
was the cause of this release .
b .
Guardian West allows waste to accumulate for an indefinite time period in
the sump area under the catwalk
.
2004.
i .
It is possible that the sulfate waste in that area has undergone
chemical or biological conversion to the sulfide form, and is
therefore capable of evolving hydrogen sulfide
.
c.
The acid spill on August 5, 2004, in fact produced hydrogen sulfide
.
The following points relate to the fax sent to OSHA and dated September 14,
The fax has not been signed .
a .
I do not feel that I should be required to answer unsigned allegations
which Guardian West can at a later date deny having made
.
2 .
"Guardian West did not have . . . a release of hydrogen sulfide gas on August 5,
2004 .
a .
There was a hydrogen sulfide release at about 4 a
.m . on the morning of
August 5, 2004
b .
I am a qualified expert in this area, and am prepared to testify that there
was a release of hydrogen sulfide
. Do they have any qualified witnesses
that could testify otherwise? .
a .
Although I have in fact contacted these agencies, I at no time stated or
threatened that I would do so . .
b .
All of my communications with Guardian West since I was suspended
3.
"We did have a pipe break in our plating department, which contained a diluted
sulfuric acid content,
. . ."
b .
The pipe that broke contained concentrated sulfuric acid .
This was my analysis of the situation at the time, which was confirmed by
all my discussions with plant personnel up to the time I was suspended
. .
4.
"(W)e have received threat letters"
a.
b.
I have not written any "threat letters"
.
All of my communications with Guardian West since I was suspended
have been in writing and can be provided if requested
.
5 .
"(W)e have received threat letters . . . that he would make it difficult for Guardian
West by calling the local and federal agencies."
have been in writing and can be provided if requested .
a .
This is a false statement
.
b.
Guardian West admits that there was a spill earlier in the same document
.
6 .
"(W)e
have received threat letters that if we did not hire this employee back he
would make it difficult for Guardian West . . ."
a.
b .
I have not at any time asked to be hired back
. .
All of my communications with Guardian West since I was suspended
have been in writing and can be provided if requested
.
7.
"We have not had any spills or releases
."
Peggy A
. Zweber, Area Director
U .S . Dept . of Labor, OSHA
2918 Willows Knolls Rd
Peoria IL 61614
Re :
Guardian West, Urbana, Illinois
Dear Ms . Zweber :
Thank you for your letter of September 24, 2004, together with fax of September
14, 2004 from Guardian West to OSHA, and memorandum to Guardian West
employees dated September 10(?), 2004 .
I have responded to these documents in a separate letter of this same day . I
want OSHA to treat this letter as a new complaint that Guardian West has violated
posting requirements and has knowingly made false statements to OSHA in connection
with my original complaint .
It appears that OSHA has required Guardian West to post a notice to employees
that OSHA has received a complaint
. This notice contains several factual errors, which
are listed and discussed in the attached document . The first problem is that Guardian
West has falsely characterized the nature of the complaint. The second problem is that
Guardian West has used the notice as a platform to make false statements about the
incident .
I am uncertain as to OSHA's rules as to this notice
. At a minimum you need to
require them to post the notice again with a correct characterization of the complaint :
That there was an acid spill which reacted with hazardous waste on the
floor, causing a release of a toxic gas, hydrogen sulfide, and that
Guardian West failed to follow the contingency plan and related rules in
responding to the incident .
Beyond this, I do not believe that Guardian West should be allowed to use the OSHA-
required notice as a platform to make false statements . At a minimum they should
preface these statements with language such as "Guardian West denies that there was
a hydrogen sulfide release," so that employees would not construe the statements as
Morton F. Dorothy
804 East Main
Urbana IL 61802-2822
217/384-1010
M Dor4248@AOL .CO M
October 4, 2004
OSHA findings .
In addition to posting a corrected version of the original notice, Guardian West
needs to be required to post a second notice that OSHA has received a complaint :
That Guardian West has violated posting requirements and has knowingly
made false statements to OSHA in connection with a complaint about an
acid spill, release of hydrogen sulfide gas and failure to carry out the
contingency plan on August 5, 2004 .
The fax is not signed
. OSHA needs to back up and require that Guardian West
provide a signed copy that could provide the basis for criminal prosecution . I am
concerned that, if you proceed on the basis of the unsigned fax, Guardian West will
later claim that an unauthorized draft was released .
There are a number of documents that were or should have been generated at
Guardian West in connection with this incident
. I have copies of some, but not all of
these . I am concerned that, if I list these documents specifically, it will make it easier for
Guardian West to destroy or alter them . Once a criminal investigation has been opened
and I have been assured that information is not being shared with Guardian West, I will
be prepared to provide an affidavit for a search warrant listing items that need to be
seized,
I have attached a short outline of the false statements in the fax and notice, with
a short response .
Sincerely,
Morton F . Dorothy
RESPONSE TO MEMO AND FAX OF SEPTEMBER 2004
The following points relate to the "memorandum" to Guardian West employees
apparently dated September 10, 2004, and faxed to OSHA on September 14, 2004 .
1 .
"The complaint was that we had a Hazardous Waste spill
. . ."
a .
The complaint did not allege a "hazardous waste spill" . The complaint was
that there was an acid spill that reacted with hazardous waste on the floor
to produce hydrogen sulfide gas, and that Guardian West failed to follow
the contingency plan and related rules in responding to the spill and
release.
2 .
"We did not have . . . a release of hydrogen sulfide gas at any time."
a .
There was a hydrogen sulfide release at about 4 a .m . on the morning of
August 5, 2004
b .
I am a qualified expert in this area, and am prepared to testify that there
was a release of hydrogen sulfide . Do they have any qualified witnesses
that could testify otherwise?
3 .
"We did have a break in one of the discharge pipes in the chrome plating
department tank #8 which has a diluted sulfuric acid content . . ."
a .
The break was on the pipe used to add concentrated sulfuric acid to the
tank, not on a discharge pipe .
b .
The pipe that broke contained concentrated sulfuric acid .
c.
This was my analysis of the situation at the time, which was confirmed by
all my discussions with plant personnel up to the time I was suspended
. .
4 .
"We do not have any chemicals that would produce hydrogen sulfide gas ."
a
.
Guardian West has started using a new chemical "HSA (High Sulfur
Additive) -90" in Tank 20 .
i .
This chemical contains reduced sulfur, and may be capable of
generating hydrogen sulfide
. I was terminated from my employment
at Guardian West before I was able to test this chemical to see if it
was the cause of this release .
b .
Guardian West allows waste to accumulate for an indefinite time period in
the sump area under the catwalk .
2004.
i .
It is possible that the sulfate waste in that area has undergone
chemical or biological conversion to the sulfide form, and is
therefore capable of evolving hydrogen sulfide .
c .
The acid spill on August 5, 2004, in fact produced hydrogen sulfide .
The following points relate to the fax sent to OSHA and dated September 14,
The fax has not been signed .
a .
I do not feel that I should be required to answer unsigned allegations
which Guardian West can at a later date deny having made .
2 .
"Guardian West did not have . . . a release of hydrogen sulfide gas on August 5,
2004
.
a
.
There was a hydrogen sulfide release at about 4 a .m. on the morning of
August 5, 2004
b .
I am a qualified expert in this area, and am prepared to testify that there
was a release of hydrogen sulfide
. Do they have any qualified witnesses
that could testify otherwise? .
a .
Although I have in fact contacted these agencies, I at no time stated or
threatened that I would do so . .
b .
All of my communications with Guardian West since I was suspended
3 .
"We did have a pipe break in our plating department, which contained a diluted
sulfuric acid content, . . ."
a .
b .
The pipe that broke contained concentrated sulfuric acid .
This was my analysis of the situation at the time, which was confirmed by
all my discussions with plant personnel up to the time I was suspended . .
4 .
"(W)e have received threat letters"
a .
b .
I have not written any "threat letters" .
All of my communications with Guardian West since I was suspended
have been in writing and can be provided if requested
.
5 .
"(W)e have received threat letters . . . that he would make it difficult for Guardian
West by calling the local and federal agencies ."
have been in writing and can be provided if requested
.
a .
This is a false statement .
b .
Guardian West admits that there was a spill earlier in the same document
.
6 .
"(W)e have received threat letters that if we did not hire this employee back he
would make it difficult for Guardian West
. . ."
a.
b .
I have not at any time asked to be hired back
. .
All of my communications with Guardian West since I was suspended
have been in writing and can be provided if requested
.
7.
"We have not had any spills or releases
."
Bill Keller
Champaign County ESDA
1905 East Main
Urbana IL 61802
Dear Mr . Keller :
This letter to confirm our telephone conversation of this day in which you stated
that, as of this day, ESDA has not received a modified contingency plan from Guardian
West since the hydrogen sulfide release incident of August 5, 2004
.
On August 5, 2004, there was an acid spill at Guardian West
. The acid reacted
with spilled chemicals on the floor, producing hydrogen sulfide, a toxic gas similar to
hydrogen cyanide or carbon monoxide
. I had safety called, and asked for a hydrogen
sulfide meter
. The safety officer responded that he did not know what a hydrogen
sulfide meter was, or whether we had one
. I told him that the Urbana Fire Department
had one, and suggested that he needed to consider evacuating the building until we
could determine whether the levels were safe
. He then disappeared, leaving me alone
to deal with the situation
. I laid out water hoses to dilute the spill, and then went outside,
since I was feeling sick . Other workers also left because they were sick
.
After obtaining a copy of the contingency plan from you, I learned that the plan
does not specifically address this type of incident, does not require training in dealing
with hydrogen sulfide, and does not require the availability of a hydrogen sulfide meter
or respirators that would be effective against this gas
. State rules require that the plan
be amended after it fails (35 III . Adm. Code 725.154)
. Rather than amend the plan and
spend a small amount of money to obtain a meter and respirators, Guardian West has
hired lawyers to defend their "right" to endanger workers and emergency responders
.
I have filed a formal complaint with the State to enforce these rules
.
. Based on
your statement to me, I will amend my complaint to allege a continuing violation through
October 12, 2004 .
Sincerely,
Morton F . Dorothy
Morton F
. Dorothy
804 East Main
Urbana IL 61802-2822
217/384-1010
M Dor4248@AOL.COM
October 12, 2004
Guardian west
Subj
:
Guardian west
Date :
10/25/2004 11
:13:35 AM Central Daylight Time
From: DeManche
.SueEllen@dol gov (DeManche, Sue Ellen - OSHA)
To : MDor4248@aol .co m ('MDor4248@aol.com
)
Morton,
about
I
phone
am the
number
what
compliance
happened
where
officer
you
on
can
Aug
conducting
5be
. I
reachedwill
the
call
.
inspection
Thank
you, if
youyou
at
.
will
Guardian
reply to
Westmy
.
email
I wish
with
to
a
speak
convenient
with
time
you
for
over
you
the
and
phonea
Sue Ellen DeManche
Demanche
US DOL - OSHA
.SueEllen(a)dol .gov
Peoria Area Office
2918 W Willow Knolls Rd
Peoria, IL 61614
(309) 589 -7033 Ext
. 220
Fax
(309) 589 -7326
Return-Path
: <DeMancheHeaders.SueEllen@dol .go
v>
MAILRELAYINXB62-6c4417d26241c9with
ReceivedReceivedESMTP
:
: fromfromid
MAILINXB42-6c4417d26241c9drly-xbO6ol.gov(.mxms.dol.aol.co.govm[63(r
;
ly-xb06.106Mon,
.13325
.mail
;
.223])
Mon,
Oct
.aol2004
25
.cobyOct mr12ly-xbO6[172:132004
:24
.20.mx12.64-0400:13.aol.138])
:35
.co-0400mby(v102air-xb04.9)
.mailwith
.aolESMTP
.comid(v102.9)
ReceivedMon,
25
:
Oct
from d2004
oldmzO712
:09.dol:20
.go-0400v ([10 .183 .133 .24]) by
dol.gov with Microsoft SMTPSVC(6
.0 .3790 .0) ;
Received : by doldmz07 .dol .gov with Internet Mail Service (5
.5.2657 .72)
id <VNR4ZTKZ> ; Mon, 25 Oct 2004 12 :09:20 -0400
ToMessage-IDFrom
: "' MDor4248@aol
: "DeManche,
: <14910C7FOA63904186EOA85F281256597C15EB@NO-EX13>Sue
.coEllenm"' <M- Dor4248@aolOSHA"
<
DeManche.co
m>
.SueEllen@dol.gov>
Subject: Guardian west
Date : Mon, 25 Oct 2004 12 :13:22 -0400
MIME-Version : 1 .0
X-Mailer: Internet Mail Service (5
.5.2657 .72)
Content-Type : multipartlalternative ;
boundary="---- = NextPart 001 01C4BAAD
.8C5AB580"
X-OriginalArrivalTimeX-AOL-I
P : 63 .106 .133
:
.22325
Oct 2004
16 :09:20.0231 (UTC) FILETIME=[FC3E7770
:01C4BAAC]
X-AOL-SCOLL-SCORE : 0 :0:0
:
X-AOL-SCOLL-URL COUNT :0
Page 1 of I
Peggy A . Zweber, Area Director
U .S. Dept . of Labor, OSHA
2918 W. Willows Knolls Rd
Peoria IL 61614
Attn : Sue Ellen DeManche
Re :
Guardian West, Urbana, Illinois
OSHA Complaint No . 204985014
Dear Ms . DeManche
:
This letter is a follow up to my complaint of September 2, 2004, in which I
complained that on August 5, 2004, there was an acid spill which reacted with
hazardous waste on the floor, causing a release of a toxic gas, hydrogen sulfide, and
that Guardian West failed to follow the contingency plan and related rules in responding
to the incident .
I have a pending appeal of denial of unemployment benefits that arose out of the
hydrogen sulfide release incident of August 5, 2004 . The Illinois Department of
Employment Security conducted a telephone hearing in connection with this appeal on
October 25 and 26, 2004
. The IDES Docket No . is 4051376A . The hearing officer is
Claude H . Potts, 1-800-423-2458 . The hearing is continued until November 3, 2004
.
On October 4, 2004, I wrote you a letter detailing false statements made by
Guardian West in a fax and memorandum sent to you on September 14 and
10(?),
2004
. Two of these statements are as follows :
"We did have a break in one of the discharge pipes in the chrome plating
department tank #8 which has a diluted sulfuric acid content . . ."
"We did have a pipe break in our plating department, which contained a
diluted sulfuric acid content,
. . ."
At the October 26, 2004 hearing, Tony Rice, Plating Manager, testified under
oath that the acid spill was from the fill pipe to Tank 8 (as opposed to the discharge
pipe) and that he was told that the spill was concentrated sulfuric acid (as should be the
case for the fill pipe) .
Morton F . Dorothy
804 East Main
Urbana IL 61802-2822
217/384-1010
M Dor4248@AOL .CO M
October 27, 2004
In addition, I have received information from a person who still works at the
factory that the required OSHA notices concerning this complaint are posted in an area
that is not accessible to him
. According to this person, the notice that he has seen
merely says that a notice has been posted in an area accessible to the affected
workers .
I worked in the plating lab . The spill was on the plating line itself
. The gas,
however, mainly drifted south into the load/unload area
. Most of the workers who were
sickened were in the load/unload area . The person who complained to me worked to
the south of the load/unload area, and normally comes and goes through that area
. If
the notice is not accessible to him, it seems unlikely that it is accessible to the workers
in the load/unload area .
Sincerely,
Morton F . Dorothy
Peggy A . Zweber, Area Director
U .S . Dept . of Labor, OSHA
2918 W
. Willows Knolls Rd
Peoria IL 61614
Attn : Sue Ellen DeManche
Re :
Guardian West, Urbana, Illinois
Dear Ms . DeManche:
This letter is a follow up to my letter of October 4, 2004, in which I complained
that Guardian West had violated posting requirements and knowingly made false
statements to OSHA in connection with its investigation of OSHA Complaint No .
204985014 .
I have a pending appeal of denial of unemployment benefits that arose out of the
hydrogen sulfide release incident of August 5, 2004
. The Illinois Department of
Employment Security conducted a telephone hearing in connection with this appeal on
October 25 and 26, 2004 . The IDES Docket No . is 4051376A
. The hearing officer is
Claude H
. Potts, 1-800-423-2458 . The hearing is continued until November 3, 2004 .
My complaint in this matter concerns several false statements made by Guardian
West to OSHA in connection with this incident . Two of these statements are as follows :
"We did have a break in one of the discharge pipes in the chrome plating
department tank #8 which has a diluted sulfuric acid content . . ."
"We did have a pipe break in our plating department, which contained a
diluted sulfuric acid content, . . ."
At the October 26, 2004 hearing, Tony Rice, Plating Manager, testified under
oath that the acid spill was from the fill pipe to Tank 8 (as opposed to the discharge
pipe) and that he was told that the spill was concentrated sulfuric acid (as should be the
case for the fill pipe)
.
In addition, I have received information from a person who still works at the
factory that the required OSHA notices are posted in an area that is not accessible to
Morton F . Dorothy
804 East Main
Urbana IL 61802-2822
217/384-1010
M Dor4248@AOL .COM
October 27, 2004
him .
According to this person, the notice that he has seen merely says that a notice
has been posted in an area accessible to the affected workers
.
I worked in the plating lab
. The spill was on the plating line itself . The gas,
however, mainly drifted south into the load/unload area
. Most of the workers who were
sickened were in the load/unload area
. The person who complained to me worked to
the south of the load/unload area, and normally comes and goes through that area
. If
the notice is not accessible to him, it seems unlikely that it is accessible to the workers
in the load/unload area .
Sincerely,
Morton F. Dorothy
Bill Keller
Champaign County ESDA
1905 East Main
Urbana IL 61802
Dear Mr
. Keller :
This letter to confirm our telephone conversation of this day in which you stated
that, as of this day, ESDA has not received a modified contingency plan from Guardian
West since the hydrogen sulfide release incident of August 5, 2004 .
I have filed a formal complaint with the State to enforce these rules . Based on
your statement to me, I will amend my complaint to allege a continuing violation through
November 8, 2004 .
Sincerely,
Morton F . Dorothy
Morton F . Dorothy
804 East Main
Urbana IL 61802-2822
217/384-1010
M Dor4248@AOL .CO M
November 8, 2004
Brian Bothast
Acting Area Director
U .S. Dept . of Labor, OSHA
2918 W. Willows Knolls Rd
Peoria IL 61614
Attn : Sue Ellen DeManche
Re :
Guardian West, Urbana, Illinois
OSHA Complaint No . 204985014
Dear Mr . Bothast :
Thank you for your attention to my complaint
. I am pleased to learn that OSHA is
proposing a citation based on my initial complaint
.
I need to point out that Guardian West/Flex-N-Gate initially provided false
information to OSHA about this incident
. I made a separate complaint concerning the
false information
. Will a separate citation be issued concerning this aspect of the
incident?
I feel that a $750 penalty is inadequate in this situation
. The only evidence as to
the level of hydrogen sulfide present is the observation that I had the greatest
exposure, was sickened, but survived
. The low penalty rewards Guardian West/Flex-N-
Gate for failing to measure the gas levels as required by the contingency plan
.
This incident happened on August 5, 2004
. The incident demonstrated that there
is a potential for future hydrogen sulfide releases
. Guardian West/Flex-N-Gate has
adamantly refused to take corrective measures for nearly four months, recklessly
exposing workers to potentially fatal accidents
. In addition, I was discharged from my
employment as a result of this incident .
I would like to see the notification of corrective action when you receive it
.
Corrective action needs to include the following :
1 .
Guardian West/Flex-N-Gate will notify the Illinois Environmental Protection
Agency and the Champaign County Emergency Services and Disaster Agency
about the August 5, 2004 incident .
Morton F . Dorothy
804 East Main
Urbana IL 61802-2822
217/384-1010
MDor4248@AOL
.COM
November 30, 2004
2 .
Guardian West/Flex-N-Gate will test chemical additive HSA-90 to determine if it
is a potential source of hydrogen sulfide when mixed with strong acid
.
3 .
Guardian West/Flex-N-Gate will agree to periodic cleaning of the sump area to
improve drainage and to guard against possible chemical or biological changes
to the accumulated waste .
4 .
Guardian West/Flex-N-Gate will amend the contingency plan to specifically
address the possibility of an acid spill resulting in a hydrogen sulfide release
. The
amended plan will require that a hydrogen sulfide meter be available at the plant,
that personnel be trained in its use, that respirators suitable for use with
hydrogen sulfide be available, and that personnel be trained in their use
.
5 .
Guardian West/Flex-N-Gate will require that hydrogen sulfide be measured
before confined space entry is permitted in Tank 20, and will require respirators if
the level is above 10 ppm, or such other level as OSHA may require
.
6 .
Guardian West/Flex-N-Gate will retract the warning I received for responding to
the spill of August 5, 2004, and will issue a written apology to me on behalf of the
company .
7 .
If Denny Corbett remains employed at Guardian West/Flex-N-Gate, he will be
required to take or repeat OSHA 40-hour hazwoper training
.
8 .
If Sheryl Drake remains employed at Guardian West/Flex-N-Gate, she will be
required to repeat OSHA 24-hour hazwoper training
. This training must be
administered by an independent contractor who will provide documentation
showing that she attended the classes and learned the material
.
9 .
If Sheryl Drake remains employed at Guardian West/Flex-N-Gate, she will be
required to write out and sign the following statement
:
"Hydrogen sulfide is a toxic gas
. If a toxic gas is detected, I will not require
employees to continue working until the level has been measured and
determined to be safe
. I understand that plating lab employees have been
given special training to deal with spills and other emergencies in the
plating department, regardless of whether the emergency is in the lab or
on the line
. I understand that, because the lab employees are the people
with specialized knowledge of the nature and properties of the chemicals
used on the line, it is necessary that they respond to spills and
emergencies, and that they be available to assist other responders
. I will
not attempt to prevent response by lab workers
. In the event a spill or
other emergency happens on my shift, I am willing and prepared to carry
out my response duties ."
10 .
A copy of Sheryl Drake's signed statement will be posted in the plating control
room for a period of one week .
11 .
Guardian West/Flex-N-Gate will provide me with copies of documentation
showing completion of the above steps .
Sincerely,
Morton F . Dorothy
Hon. Ken S
. Welch, Judge
Occupational Safety & Health Review Commission
#1924 Building, Suite 2R90
100 Alabama Street, S .W.
Atlanta, GA 30303-3104
Re :
Guardian West, Urbana, Illinois
OSHRC Docket No
. 04-2142
Inspection No . 305896243
Dear Judge Welch
:
I believe I am the complainant in the above OSHA matter
. I have recently
learned that some sort of proceeding has been held before you in connection with this
matter
. The papers I have obtained refer to a "Stipulation and Settlement Agreement"
. I
cannot, however, tell anything about the substance of the settlement from the papers I
have obtained .
I was fired from this job shortly after the incident, in which I attempted to follow
proper safety procedures
. This is a non-union job . It looks to me as if your system is set
up on the assumption that there is a union to represent the workers, and that there is no
system to allow an individual complainant to follow the case .
After I complained to OSHA, I offered several times to testify in their
proceedings, but was never invited to do so . I have heard from the Peoria, IL, OSHA
office intermittently about this matter. The last I heard from them, there was a $750 fine
and a requirement to come into compliance .
The documents I have received includes a "Statement of Mike Trueblood" which
argues on theoretical grounds that the hydrogen sulfide incident could not have
happened
. This theoretical treatment cannot possibly stand against the fact that the
incident did happen
. Furthermore, I disagree with many things Mike says
. I can
construct theoretical arguments as to why this happened that are just a persuasive as
Mike's .
I would like the opportunity to review any compliance plan in this matter
.
Guardian West has apparently taken no steps whatsoever to remedy an extremely
Morton F . Dorothy
804 East Main
Urbana IL 61802-2822
217/384-1010
MDor4248@AOL
.CO M
April 24, 2005
dangerous situation, which could result in a fatal accident at any time
. The source of the
hydrogen sulfide gas was probably the accumulated sludge and debris under the
plating line
. This needs to be periodically cleaned, and not allowed to age under the
acid lines
. The plant needs to update its Emergency Response Plan to specifically
address the possibility of a hydrogen sulfide incident, and to provide training, monitoring
equipment and safety equipment to deal with such an incident
.
Sincerely,
Morton F
. Dorothy
Mr. Thomas V
. Skinner
Regional Administrator
US EPA Region 5
77 W. Jackson Blvd .
Chicago, IL 60604
Re :
Illinois RCRA authorization
Dear Mr . Skinner :
This letter is intended to transmit substantive information that the Illinois RCRA
program may no longer be adequate within the meaning of 40 CFR 239
.13 .
I am the complainant in Pollution Control Board case PCB 05-049 . This case
grew out of an accident in which a pipe carrying concentrated sulfuric acid separated,
spilling the acid onto hazardous waste that had accumulated on the floor under tanks in
an electroplating operation
. The acid reacted with the waste, generating hydrogen
sulfide gas . This was an unexpected result, in that the waste had not previously been
known to contain sulfide .
The factory is a large quantity generator of hazardous waste that operates
without a RCRA permit pursuant to the Illinois equivalent of 40 CFR 260
.34. Among
other things, it is required to have a contingency plan, to follow the contingency plan in
an emergency, to notify the Illinois EPA, and to amend the plan in the event the plan
fails
. The facility had a contingency plan, but failed to follow the plan in any significant
respect, and failed to notify . The facility has not amended the plan in response to the
failure, specifically failing to modify the plan to address any future hydrogen sulfide
release incident .
The Illinois EPA investigated this incident . Factory management essentially
denied that the incident had occurred, and IEPA took no action
. I then filed a citizen
enforcement action with the Pollution Control Board
. Management has admitted in
discovery that the incident took place .
On October 20, 2005, the Board granted summary judgment in favor of the
facility as to the counts alleging violation of the contingency plan requirements,
Morton F . Dorothy
104 W. University
Southwest Suite
Urbana IL 61801
217/384-1010
MDor4248@AOL .CO M
October 29, 2005
reasoning that the released hydrogen sulfide was an "uncontained gas", and therefore
not a "solid waste" within the meaning of RCRA
. The Board cited
Helter v . AK Steel
Corp ., 1997 U
.S. Dist LEXIS 9852(S.D. Oh . 1997).
Helter involved a release of a byproduct gas from a broken pipe, which gas was
not a "solid waste" or a "hazardous waste" prior to release
. The plaintiff in that case had
argued that RCRA applied to the released gas
. The Court held that the gas did not
become a "solid waste" upon release, because of the "uncontained gas" exclusion
. In
the case before the Board, on the other hand, the gas originated from material that was
already a hazardous waste and subject to the contingency planning requirements
. The
release of the gas was a trigger for implementation of the contingency plan with respect
to the hazardous waste on the floor, regardless of whether the released gas was itself a
"solid waste" or "hazardous waste"
.
The Board's extension of
Helter undercuts all RCRA regulations aimed at
protecting workers and the public from gaseous emissions from hazardous waste,
including emissions from sulfide and cyanide bearing reactive waste, since such
emissions would almost always be "uncontained gases"
. Specifically, hazardous waste
management facilities (including conditionally exempt generators) no longer have to
comply with the following requirements
:
•
Facilities handling potentially reactive waste no longer have to prepare
contingency plans for dealing with a toxic gas release
. (Section 265 .51)
•
Because toxic emissions are excluded from contingency planning, facilities no
longer have to
: train workers concerning the dangers of toxic gases from mixing
acids with reactive wastes
; provide meters or respirators effective against
foreseeable toxic gases
; train workers in the use of such protective equipment
;
or, notify local emergency response teams of the possibility of toxic gas
emissions .
•
Facilities no longer have to notify IEPA or local emergency response teams
about toxic gas releases from hazardous waste
. (Section 265
.56)
These important elements are now missing from the Illinois RCRA program
.
USEPA needs to initiate a withdrawal of determination of adequacy procedure until the
State remedies this ruling
. I intend to file a motion for reconsideration with the Board in
the near future . Quick action on your part would allow the Board to reverse itself
.
Sincerely,
Morton F. Dorothy
Mr. Bill Child, Chief
Bureau of Land
1021 N . Grand Avenue East
Box 19276
Springfield, IL 62794-9276
Re: Flex-N-Gate/Guardian West, PCB 05-049
Dear Bill :
I am the complainant in Pollution Control Board case PCB 05-049 . This case
grew out of an accident in which a pipe carrying concentrated sulfuric acid separated,
spilling the acid onto hazardous waste that had accumulated on the floor under tanks in
an electroplating operation . The acid reacted with the waste, generating hydrogen
sulfide gas . This was an unexpected result, in that the waste had not previously been
known to contain sulfide .
Flex-N-Gate, Guardian West is a large quantity generator of hazardous waste
that operates without a RCRA permit pursuant to Section 720 .134. The facility had a
contingency plan, but failed to follow the plan in any significant respect, and failed to
notify. The facility has not amended the plan in response to the failure, specifically
failing to modify the plan to address any future hydrogen sulfide release incident
.
Ken Keigley investigated this incident . Factory management essentially denied
that the incident had occurred, and IEPA took no action . I then filed a citizen
enforcement action with the Pollution Control Board . Management has admitted in
discovery that the incident took place
.
This case is similar to People v . Conair, PCB 05-219, which includes allegations
regarding violation of contingency planning requirements .
On October 20, 2005, the Board granted summary judgment in favor of Flex-N-
Gate as to the counts alleging violation of the contingency plan requirements, reasoning
that the released hydrogen sulfide was an "uncontained gas", and therefore not a "solid
waste" within the meaning of RCRA
. The Board cited Helter v . AK Steel Corp ., 1997
U .S
. Dist LEXIS 9852(S .D . Oh . 1997) .
Morton F . Dorothy
104 W. University
Southwest Suite
Urbana IL 61801
217/384-1010
M
Dor4248@AOL .COM
October 29, 2005
Helter
involved a release of a byproduct gas from a broken pipe, which gas was
not a "solid waste" or a "hazardous waste" prior to release . The plaintiff in that case had
argued that RCRA applied to the released gas . The Court held that the gas did not
become a "solid waste" upon release, because of the "uncontained gas" exclusion . In
the case before the Board, on the other hand, the gas originated from material that was
already a hazardous waste and subject to the contingency plan requirements
. The
release of the gas was a trigger for implementation of the contingency plan with respect
to the hazardous waste on the floor, regardless of whether the released gas itself was a
"solid waste".
The Board's extension of Helter undercuts all RCRA regulations aimed at
protecting workers and the public from gaseous emissions from hazardous waste,
including emissions from sulfide and cyanide bearing reactive waste, since such
emissions would almost always be "uncontained gases" . Specifically, hazardous waste
management facilities (including conditionally exempt generators) no longer have to
comply with the following requirements :
•
Facilities handling potentially reactive waste no longer have to prepare
contingency plans for dealing with a toxic gas release . (Section 725 .151)
•
Because toxic emissions are excluded from contingency planning, facilities no
longer have to : train workers concerning the dangers of toxic gases from mixing
acids with reactive wastes ; provide meters or respirators effective against
foreseeable toxic gases ; train workers in the use of such protective equipment ;
or, notify local emergency response teams of the possibility of toxic gas
emissions
.
•
Facilities no longer have to notify IEPA or local emergency response teams
about toxic gas releases from hazardous waste
. (Section 725 .156)
I have notified the Regional Administrator of these program deficiencies pursuant
to 40 CFR 239 .13 . I will file a motion for reconsideration with the Board in the near
future . Support from IEPA would be appreciated
.
Sincerely,
Morton F. Dorothy
Mr. Matthew J . Dunn, Chief
Environmental Enforcement Division
Illinois Attorney General
500 South Second Street
Springfield, IL 62706
Re : Flex-N-Gate/Guardian West, PCB 05-049
Dear Mr . Dunn :
I am the complainant in Pollution Control Board case PCB 05-049 . This case
grew out of an accident in which a pipe carrying concentrated sulfuric acid separated,
spilling the acid onto hazardous waste that had accumulated on the floor under tanks in
an electroplating operation . The acid reacted with the waste, generating hydrogen
sulfide gas. This was an unexpected result, in that the waste had not previously been
known to contain sulfide .
Flex-N-Gate, Guardian West is a large quantity generator of hazardous waste
that operates without a RCRA permit pursuant to Section 720 .134. The facility had a
contingency plan, but failed to follow the plan in any significant respect, and failed to
notify . The facility has not amended the plan in response to the failure, specifically
failing to modify the plan to address any future hydrogen sulfide release incident .
IEPA investigated this incident. Factory management essentially denied that the
incident had occurred, and IEPA took no action . I then filed a citizen enforcement action
with the Pollution Control Board . Management has admitted in discovery that the
incident took place .
On October 20, 2005, the Board granted summary judgment in favor of Flex-N-
Gate as to the counts alleging violation of the contingency plan requirements, reasoning
that the released hydrogen sulfide was an "uncontained gas", and therefore not a "solid
waste" within the meaning of RCRA . The Board cited Helter v
. AK Steel Corp ., 1997
U .S. Dist LEXIS 9852(S .D . Oh. 1997).
Helter
involved a release of a byproduct gas from a broken pipe, which gas was
not a "solid waste" or a "hazardous waste" prior to release . The plaintiff in that case had
Morton F . Dorothy
104 W. University
Southwest Suite
Urbana IL 61801
217/384-1010
MDor4248@AOL
.CO M
October 29, 2005
argued that RCRA applied to the released gas
. The Court held that the gas did not
become a "solid waste" upon release, because of the "uncontained gas" exclusion
. In
the case before the Board, on the other hand, the gas originated from material that was
already a hazardous waste and subject to the contingency plan requirements
. The
release of the gas was a trigger for implementation of the contingency plan with respect
to the hazardous waste on the floor, regardless of whether the released gas itself was a
"solid waste" .
The Board's extension of Helter
undercuts all RCRA regulations aimed at
protecting workers and the public from gaseous emissions from hazardous waste,
including emissions from sulfide and cyanide bearing reactive waste, since such
emissions would almost always be "uncontained gases"
. Specifically, hazardous waste
management facilities (including conditionally exempt generators) no longer have to
comply with the following requirements
:
•
Facilities handling potentially reactive waste no longer have to prepare
contingency plans for dealing with a toxic gas release
. (Section 725
.151)
•
Because toxic emissions are excluded from contingency planning, facilities no
longer have to
: train workers concerning the dangers of toxic gases from mixing
acids with reactive wastes
; provide meters and respirators effective against
foreseeable toxic gases
; train workers in the use of such protective equipment
;
or, notify local emergency response teams of the possibility of toxic gas
emissions
.
•
Facilities no longer have to notify IEPA or local emergency response teams
about toxic gas releases from hazardous waste
. (Section 725 .156)
I have identified People v
. Conair, PCB 05-219, as a case which includes
allegations regarding violation of contingency planning requirements
. It is possible that
your office may have other cases involving hazardous waste contingency planning
.
from your
I will
office
file
would
a motion
be appreciatedfor
reconsideration
.
with the Board in the near future
. Support
Sincerely,
Morton F. Dorothy
Lisa Madigan
A170RNEY GENERAL
Mr. Morton F . Dorothy
104 W . University
Southwest Suite
Urbana, IL 61801
Re:
Letter regarding Morton F . Dorothy v . Flex-N-Gate Corporation,
PCB 05-049
Investigation No . 2005 ENV 2012
Dear Mr. Dorothy :
This letter is to respond to your letter of October 29, 2005 to Matthew J . Dunn of this
Office. We have reviewed your letter and the related filings in the above-referenced case
currently proceeding before the Illinois Pollution Control Board ("Board") . In that letter,
you articulate your disagreement with an order issued by the Board in the pending case,
in which you are a complainant, and request the support of this Office . However, having
reviewed the materials, and noting that this matter remains properly before the Board, we
respectfully decline to intervene in the pending case .
Thank you for your correspondence .
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
January 9, 2006
Sincerely,
Christopher P
Assis
o
eral
Environmental Bureau
188 W. Randolph Street, 20th Floor
Chicago, Illinois 60601
312 814-3532
500 South Second Street, Springfield, Illinois 62706 • (217) 782-1090 • TTY: (217) 785-2771 • Fax : (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • 'l I'Y: (312) 814-3374 • Fax : (312) 814-3806
1001 East Main, Carbondale, Illinois 62901 • (618) 529-6400 • TTY : (618) 529-6403 • Fax : (618) 529-6416
Mr. Matthew J . Dunn, Chief
Environmental Enforcement Division
Illinois Attorney General
500 South Second Street
Springfield, IL 62706
Re :
Flex-N-Gate/Guardian West, PCB 05-049
Dear Mr . Dunn :
On January 9, 2006, I received a letter from Christopher Perzan of your office in
response to my letter of October 29, 2005, stating that the Attorney General's Office
was declining to intervene in the above case
.
In this case the Pollution Control Board has ruled that RCRA hazardous waste
management facilities in Illinois no longer have to comply with the following
requirements
:
•
Facilities handling cyanide and other reactive wastes no longer have to prepare
contingency plans for dealing with a toxic gas release
. (Section 725 .151)
•
Facilities no longer have to
: train workers concerning the dangers of toxic gases
from mixing acids with cyanide wastes
; provide meters and respirators effective
against cyanide
; train workers in the use of such protective equipment
; or, notify
local emergency response teams of the possibility of cyanide releases
.
•
Facilities no longer have to notify IEPA or local emergency response teams
about cyanide gas releases from hazardous waste
. (Section 725 .156).
and out-gunnedThis
matter
. There
is still
is a
before
substantial
the Board
possibility
on my motion
that the
for
Board
reconsiderationwill
rule against
. I am
me,alonein
which case the decision will become effective as the law in Illinois
.
Morton F . Dorothy
104 W
. University
Southwest Suite
Urbana IL 61801
217/384-1010
M Dor4248@AOL .COM
February 13, 2006
I may have to put out press release in the near future
. I would like to be able to
say that the Attorney General is on record as opposing the deregulation of toxic gas
releases from hazardous waste management facilities .
Sincerely,
Morton F . Dorothy
