THIS FILING SUBMITTED ON RECYCLED PAPER
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    MORTON F. DOROTHY,
    )
    )
    Complainant,
    )
    )
    v.
    )
    PCB No. 05-49
    )
    FLEX-N-GATE CORPORATION,
    )
    an Illinois corporation,
    )
    )
    Respondent.
    )
    NOTICE OF FILING
    TO:
    Ms. Dorothy M. Gunn
    Carol Webb, Esq.
    Clerk of the Board
    Hearing Officer
    Illinois Pollution Control Board
    Illinois Pollution Control Board
    100 West Randolph Street
    1021 North Grand Avenue East
    Suite 11-500
    Post Office Box 19274
    Chicago, Illinois 60601
    Springfield, Illinois 62794-9274
    (VIA ELECTRONIC MAIL)
    (VIA ELECTRONIC MAIL)
    PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
    the Illinois Pollution Control Board
    RESPONDENT’S MOTION FOR
    CLARIFICATION OF HEARING OFFICER ORDER OR, IN THE
    ALTERNATIVE, FOR IMMEDIATE TELEPHONIC STATUS CONFERENCE,
    a
    copy of which is herewith served upon you.
    Respectfully submitted,
    FLEX-N-GATE CORPORATION,
    Respondent,
    Dated: June 22, 2006
    By:/s/ Thomas G. Safley
    One of Its Attorneys
    Thomas G. Safley
    HODGE DWYER ZEMAN
    3150 Roland Avenue
    Post Office Box 5776
    Springfield, Illinois 62705-5776
    (217) 523-4900
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
    CERTIFICATE OF SERVICE
    I, Thomas G. Safley, the undersigned, certify that I have served the attached
    RESPONDENT’S MOTION FOR CLARIFICATION OF HEARING OFFICER
    ORDER OR, IN THE ALTERNATIVE, FOR IMMEDIATE TELEPHONIC STATUS
    CONFERENCE 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 June 22, 2006; and upon:
    Mr. Morton F. Dorothy
    104 West University, SW Suite
    Urbana, Illinois 61801
    by depositing said documents in the United States Mail in Springfield, Illinois, postage
    prepaid, on June 22, 2006.
    _/s/ Thomas G. Safley
    Thomas G. Safley
    GWST:003/Fil/NOF and COS – Motion for Clarification
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    MORTON F. DOROTHY,
    )
    )
    Complainant,
    )
    )
    v.
    )
    PCB 05-49
    )
    FLEX-N-GATE CORPORATION,
    )
    an Illinois corporation,
    )
    )
    Respondent.
    )
    RESPONDENT’S MOTION FOR
    CLARIFICATION OF HEARING OFFICER ORDER OR, IN THE
    ALTERNATIVE, FOR IMMEDIATE TELEPHONIC STATUS CONFERENCE
    NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
    by and through its attorneys, HODGE DWYER ZEMAN, pursuant to 35 Ill. Admin.
    Code §§ 101.500 and 101.502, and for its Motion for Clarification of Hearing Officer
    Order or, in the Alternative, for Immediate Telephonic Status Conference, states as
    follows:
    1.
    On June 19, 2006, the Parties participated in a telephonic status
    conference with the Hearing Officer in this matter. The undersigned participated in that
    status conference on behalf of Respondent.
    2.
    On that same date, the Hearing Officer issued a Hearing Officer Order
    regarding that status conference.
    3.
    The undersigned received that Order today, June 22, 2006.
    4.
    That Order states in relevant part as follows:
    On June 19, 2006, the parties participated in a telephone status conference
    with the hearing officer. Complainant plans to file an amended complaint
    within the next 14 days, and respondent plans to object to the amended
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
    2
    complaint. Additionally, respondent plans to file a motion for summary
    judgment on the remaining count in this matter.
    Order at 1. (Emphasis added.)
    5.
    The underlined language set forth above does not reflect the undersigned’s
    understanding or notes regarding the Parties’ arguments and the Hearing Officer’s
    direction during the June 19, 2006 status conference.
    6.
    Rather, it is the undersigned’s recollection and understanding that at the
    status conference:
    a.
    the Parties and the Hearing Officer discussed the fact that the
    Hearing Officer had set a deadline of May 19, 2006, for
    Complainant to file any Motion for Leave to Amend Complaint
    with the Board;
    b.
    the Parties and the Hearing Officer further discussed the fact that
    Complainant had failed to file a Motion for Leave to Amend by
    that deadline;
    c.
    Complainant orally moved the Hearing Officer for a 45-day
    extension of that deadline to two weeks following the June 19,
    2006 status conference, or July 3, 2006;
    d.
    counsel for Respondent orally objected to Complainant’s oral
    motion;
    e.
    the Hearing Officer asked if Respondent planned to make any
    written filing in response to Complainant’s oral motion; and,
    f.
    the Parties and the Hearing Officer discussed the procedural
    posture of the issue and determined that Complainant had made an
    oral motion for extension of the deadline, and that Respondent
    should file a written Response to that oral motion, after which
    filing the Hearing Officer would consider Respondent’s filing and
    then rule on Complainant’s oral motion.
    7.
    In light of these occurrences, Respondent has, since the date of the
    Hearing, been drafting its Response to Complainant’s oral motion for Additional Time to
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
    3
    File Motion for Leave to Amend Complaint (“Response to Complainant’s oral motion”),
    which Response it filed today.
    8.
    The Hearing Officer Order, however, does not reference the fact that
    Complainant missed the previous deadline to file a Motion for Leave to Amend,
    Complainant’s oral motion to extend that deadline, or the fact that the Hearing Officer
    directed Flex-N-Gate to file a written Response to Complainant’s oral motion which the
    Hearing Officer then would consider before ruling on Complainant’s oral motion.
    9.
    Further, Respondent notes that Complainant cannot, as the Hearing
    Officer states, “plan[] to file an amended complaint within the next 14 days.”
    Complainant cannot file an Amended Complaint unless he first moves for leave to do so,
    and the Illinois Pollution Control Board (“Board”) grants him such leave after finding
    that the Amended Complaint meets the requirements of 35 Ill. Admin. Code § 103.204.
    35 Ill. Admin. Code § 103.206(d), (e). As the Board recently stated:
    The Board agrees with [respondent] that the amended complaint the
    [complainants] wish to file must comply with Section 103.204 (35 Ill.
    Adm. Code 103.204) of the Board’s procedural rules.
    See
    35 Ill. Adm.
    Code 103.206(d);
    see also
    Revision of the Board’s Procedural Rules: 35
    Ill. Adm. Code 101-130, R00-20 (Mar. 16, 2000) (Section 103.206 applies
    to the filing of an amendment to a complaint that sets forth a new or
    modified claim “whether or not the person against whom the claim is
    made is already a party to the proceeding.”). The Board further agrees
    with [respondent] that under Section 103.206(d), the [complainants’]
    motion for leave to amend should have been directed to the Board rather
    than the hearing officer.
    Kassella v. TNT
    , PCB 06-1, at 1-2 (Ill.Pol.Control.Bd. Mar. 16, 2006).
    10.
    Further, Respondent notes that its objection is not “to the amended
    complaint” (as to which no motion for leave to file has been filed or granted), but rather,
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
    4
    that its objection is to Complainant’s oral motion for an extension of the deadline for
    Complainant to file a Motion for Leave. See
    Respondent’s Response to Complainant’s
    oral motion, filed today. If the Hearing Officer grants Complainant’s oral motion, and
    Complainant timely files a Motion for Leave, Respondent will review Complainant’s
    Motion for Leave, consider whether Complainant has complied with the requirements of
    35 Ill. Admin. Code §§ 101.204 and 101.206, and at that point consider whether it
    opposes Complainant’s proposed Amended Complaint.
    11.
    The Hearing Officer’s Order implies that the Hearing Officer either:
    a.
    understands that she granted Complainant’s oral motion to extend
    the deadline during the June 19, 2006, telephonic status conference
    (which would render Respondent’s Response to that oral motion
    filed today moot); or,
    b.
    understands that the Board already has granted Complainant leave
    to file an Amended Complaint.
    12.
    As set forth above, it is Respondent’s understanding that neither of these is
    the case.
    13.
    Accordingly, Respondent moves the Hearing Officer to issue a Revised
    Hearing Officer Order clarifying her June 19, 2006 Hearing Officer Order. Respondent
    submits that the following revised language (additions and strikeouts indicated)
    accurately reflects the discussions of the Parties and the Hearing Officer at the status
    conference:
    On June 19, 2006, the parties participated in a telephone status conference
    with the hearing officer. Complainant orally moved for an extension of the
    deadline for Complainant to file a motion for leave to plans to file an
    amended complaint within the next
    to 14 days following the status
    conference, or July 3, 2006. , and rRespondent plans to orally objected to
    Complainant’s oral motion
    the amended complaint. The hearing officer
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
    5
    directed Respondent to file a written Response to Complainant’s oral
    motion, after which filing the hearing officer will rule on Complainant’s
    oral motion. Additionally, respondent plans to file a motion for sanctions
    or, in the alternative,
    for summary judgment on the remaining count in this
    matter.
    14.
    Alternatively, if the Hearing Officer finds that Respondent’s
    understanding of the Parties’ and the Hearing Officer’s discussions during the June 19,
    2006, status conference as set forth above is incorrect, Respondent moves the Hearing
    Officer to immediately set another telephonic status conference in this matter so that the
    Parties and Hearing Officer can discuss and clarify these issues.
    WHEREFORE, Respondent FLEX-N-GATE CORPORATION respectfully
    moves the Hearing Officer to clarify her June 19, 2006, Hearing Officer Order as set
    forth above, and to grant FLEX-N-GATE CORPORATION such other relief as the
    Hearing Officer deems just.
    Respectfully submitted,
    FLEX-N-GATE CORPORATION,
    Respondent,
    By:/s/ Thomas G. Safley
    One of Its Attorneys
    Dated: June 22, 2006
    Thomas G. Safley
    HODGE DWYER ZEMAN
    3150 Roland Avenue
    Post Office Box 5776
    Springfield, Illinois 62705-5776
    (217) 523-4900
    GWST:003/Fil/Motion to Clarify Hearing Officer Order
    ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006

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