1. CERTIFICATE OF SERVICE
    2. AMENDED COMPLAINT
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
MORTON F. DOROTHY,
)
)
Complainant,
)
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
AMENDED COMPLAINT
Complainant, Morton F. Dorothy, for his amended complaint against respondent,
Flex-n-gate Corporation, an Illinois corporation, alleges as follows.
ALLEGATIONS COMMON TO ALL COUNTS
1.
This is a citizens complaint filed pursuant to Section 31 of the Environmental
Protection Act (“Act”) (415 ILCS 5/31) and 35 Ill. Adm. Code 103.200.
2.
Complainant is an individual residing in Champaign County, Illinois.
3.
Respondent, Flex-n-gate Corporation, is an Illinois corporation which owns and
operates a facility known as Guardian West, 601 Guardian Drive, Urbana,
Champaign County, Illinois.
4.
The facility produces bumpers for vehicles. The facility includes a “chrome plating
line” in which steel bumpers are cleaned, electroplated with several layers of
nickel, electroplated with chromium, and rinsed.
5.
The cleaning, plating and rinsing operations take place in open-top tanks holding
up to 10,000 gallons of various chemicals in water solution. The tanks are
arranged in two rows, with a catwalk between the rows to access the tops of the
tanks.
6.
The tanks are mounted on concrete piers above a coated concrete floor. Spilled
chemicals fall to the floor, where they accumulate to be pumped to a treatment
unit.
COUNT I
OPERATION WITHOUT A RCRA PERMIT OR INTERIM STATUS
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 19, 2006
Complainant realleges and incorporates by reference the allegations common to
all Counts in this Count .
7.
The spillage on the floor is hazardous waste as defined in 35 Ill. Adm. Code 721.
8.
The spillage on the floor is a complex mixture that includes chromic acid, nickel
sulfate from the nickel plating tanks, sulfuric acid, various proprietary high-sulfur
additives used in one of the nickel plating tanks to form a high-sulfur, corrosion
resistant nickel layer, and various proprietary cleaning agents containing sulfur.
9.
The spillage on the floor includes contaminated debris and sludge beds.
10.
The Illinois Environmental Protection Agency has not issued a RCRA permit for
the facility.
11.
Respondent is operating a hazardous storage facility without a RCRA permit or
interim status, in violation of Section 21(f) of the Act and 35 Ill. Adm. Code
703.121(a).
12.
Because of the age of the waste under the catwalk, chemical or biological
reactions have converted part of the sulfate waste to the sulfide form, allowing
the formation of hydrogen sulfide gas on contact with acid.
13.
35 Ill. Adm Code 103.400 et seq. Include procedures under which the Board
would supervise the issuance of a RCRA permit.
WHEREFORE Complainant prays:
1.
That the Board set this matter for hearing.
2.
That the Board determine that respondent has violated the RCRA permit
requirement of Section 21(f) of the Environmental Protection Act and 35 Ill. Adm.
Code 703.121(a).
3.
That the Board assess a civil penalty of $25,000 per day for the violation.
4.
That the Board enter an order requiring that Respondent file a Part A and Part B
RCRA permit application with the Illinois Environmental Protection Agency.
5.
In the event that, following enforcement hearings in this case, the Board
determines that it is necessary for the Board to order the issuance of a RCRA
permit, that the Board enter an interim order pursuant to 35 Ill. Adm. Code
103.402.
6.
For such other relief as the Board may determine to be necessary.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 19, 2006
COUNT II
FAILURE TO MAKE HAZARDOUS WASTE DETERMINATION
Complainant realleges and incorporates by reference the allegations common to
all Counts in this Count .
14.
Respondent is a generator of “solid waste” as defined in 35 Ill. Adm. Code
721.102, including the material accumulated on the floor under the plating line.
15.
35 Ill. Adm. Code 722.111 provides that: “A person who generates a solid waste,
as defined in 35 Ill. Adm. Code 721.102, shall determine if that waste is a
hazardous waste...”
16.
Respondent failed to determine whether the material accumulated on the floor
under the plating line was a “hazardous waste”.
17.
Respondent has violated Section 722.111.
WHEREFORE Complainant prays:
7.
That the Board set this matter for hearing.
8.
That the Board determine that respondent has violated 35 Ill. Adm. Code
722.111.
9.
That the Board order Respondent to make the hazardous waste determination
pursuant to Section 722.111.
10.
That the Board assess a civil penalty of $25,000 per day for the violation.
11.
For such other relief as the Board may determine to be necessary.
COUNT III
HAZARDOUS WASTE MINIMIZATION PROGRAM
Complainant realleges and incorporates by reference the allegations common to
all Counts in this Count .
18.
Respondent is a large quantity generator of hazardous waste.
19.
During the period from July 1 through September 30, 2004, Respondent initiated
shipments of hazardous waste containing chromic acid and sludges resulting
from the treatment of chromic acid pursuant to uniform hazardous waste
manifests.
20.
The manifests included the following certification:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 19, 2006
If I am a large quantity generator, I certify that I have a program in place to
reduce the volume and toxicity of the waste generated to the degree I have
determined to be economically practicable and that I have selected the
practicable method of treatment, storage, or disposal currently available to me
which minimizes the present and future threat to human health and the
environment...
21.
35 Ill. Adm. Code 722.133(a)(1) provides that “the generator shall sign the
manifest certification by hand; ...”
22.
Respondent did not have a program in place to reduce the volume and toxicity of
hazardous waste containing chromic acid and sludges resulting from the
treatment of chromic acid.
23.
Respondent has violated Section 722.133(a)(1).
WHEREFORE Complainant prays:
12.
That the Board set this matter for hearing.
13.
That the Board determine that respondent has violated 35 Ill. Adm. Code
722.133(a)(1).
14.
That the Board order respondent to cease and desist from initiating shipments of
hazardous waste containing chromic acid and sludges resulting from the
treatment of chromic acid until it has in place a program to reduce the volume
and toxicity of the waste generated
15.
That the Board assess a civil penalty of $25,000 per day for the violation.
16.
For such other relief as the Board may determine to be necessary.
COUNT IV
HAZARDOUS WASTE MINIMIZATION
Complainant realleges and incorporates by reference the allegations common to
all Counts in this Count .
24.
Respondent is a large quantity generator of hazardous waste.
25.
During the period from July 1 through September 30, 2004, Respondent initiated
shipments of hazardous waste containing chromic acid and sludges resulting
from the treatment of chromic acid pursuant to uniform hazardous waste
manifests.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 19, 2006
26.
The manifests included the following certification:
If I am a large quantity generator, I certify that I have a program in place to
reduce the volume and toxicity of the waste generated to the degree I have
determined to be economically practicable and that I have selected the
practicable method of treatment, storage, or disposal currently available to me
which minimizes the present and future threat to human health and the
environment...
27.
35 Ill. Adm. Code 722.133(a)(1) provides that “the generator shall sign the
manifest certification by hand; ...”
28.
During July and August, 2004, Respondent failed to implement an economically
practicable program to reduce the volume and toxicity of the hazardous waste
containing chromic acid and sludges resulting from the treatment of chromic acid
29.
Respondent has violated Section 722.133(a)(1).
WHEREFORE Complainant prays:
17.
That the Board set this matter for hearing.
18.
That the Board determine that respondent has violated 35 Ill. Adm. Code
722.133(a)(1).
19.
That the Board order respondent to cease and desist from initiating shipments of
hazardous waste containing chromic acid and sludges resulting from the
treatment of chromic acid until it has in place a program to reduce the volume
and toxicity of the waste generated
20.
That the Board assess a civil penalty of $25,000 per day for the violation.
21.
For such other relief as the Board may determine to be necessary.
COUNT V
PREPARATION OF FALSE CONTINGENCY PLANS
Complainant realleges and incorporates by reference the allegations common to
all Counts in this Count .
30.
In May, 2001, respondent filed a contingency plan with the Agency and the
Champaign County Emergency Services and Disaster Agency (ESDA).
31.
Respondent has since filed amended contingency plans with the Agency and
ESDA.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 19, 2006
32.
The contingency plan and amendments stated that the plan was intended to
meet the requirements of 35 Ill. Adm. Code 724 and 725.
33.
35 Ill. Adm. Code 725.152(a) provides:
The contingency plan must describe the actions facility personnel must take to
comply with Sections 725.151 and 725.156 in response to fires, explosions, or
any unplanned sudden or non-sudden release of hazardous waste or hazardous
waste constituents to air, soil, or surface water at the facility.
34.
The contingency plan and amendments did not describe the actions respondent
intended to take.
35.
Respondent has violated Section 725.152(a).
WHEREFORE Complainant prays:
22.
That the Board set this matter for hearing.
23.
That the Board determine that respondent has violated 35 Ill. Adm. Code
725.152(a).
24.
That the Board order Respondent to prepare an amended contingency plan
reflecting the actions it intends to take, specifically delineating the areas of the
plant and types of releases to which the plan applies.
25.
That the Board assess a civil penalty of $25,000 per day for the violation.
26.
For such other relief as the Board may determine to be necessary.
COUNT VI
OPERATION WITHOUT AN AIR POLLUTION PERMIT
Complainant realleges and incorporates by reference the allegations common to
all Counts in this Count .
36.
On or about August 5, 2004, Respondent caused or allowed the release of
hydrogen sulfide through the plating tank ventilation system to the atmosphere.
37.
Section 9(b) of the Act provides that:
[No person shall...] Construct, install or operate any equipment, facility, vehicle,
vessel or aircraft capable of causing or contributing to air pollution or designed to
prevent air pollution, of any type designated by Board regulations, without a
permit granted by the Agency, or in violation of any conditions imposed by such
permit.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 19, 2006
38.
Respondent did not have an air pollution permit allowing the emission of
hydrogen sulfide.
39.
Respondent has violated Section 9(b) of the Act.
WHEREFORE Complainant prays:
27.
That the Board set this matter for hearing.
28.
That the Board determine that respondent has violated Section 9(b) of the
Environmental Protection Act.
29.
That the Board order Respondent to apply for an air pollution permit governing
the emission of hydrogen sulfide.
30.
That the Board assess a civil penalty of $25,000 per day for the violation.
31.
For such other relief as the Board may determine to be necessary.
COUNT VII
PROCESS EMISSION WITHOUT AN AIR POLLUTION PERMIT
Complainant realleges and incorporates by reference the allegations common to
all Counts in this Count .
40.
On or about August 5, 2004, Respondent caused or allowed the release of
hydrogen sulfide through the plating tank ventilation system to the atmosphere.
41.
The release of hydrogen sulfide was a process emission.
42.
Section 9(b) of the Act provides that:
[No person shall...] Construct, install or operate any equipment, facility, vehicle,
vessel or aircraft capable of causing or contributing to air pollution or designed to
prevent air pollution, of any type designated by Board regulations, without a
permit granted by the Agency, or in violation of any conditions imposed by such
permit.
43.
Respondent did not have an air pollution permit allowing the emission of
hydrogen sulfide.
44.
Respondent has violated Section 9(b) of the Act.
WHEREFORE Complainant prays:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 19, 2006
32.
That the Board set this matter for hearing.
33.
That the Board determine that respondent has violated Section 9(b) of the
Environmental Protection Act.
34.
That the Board order Respondent to apply for an air pollution permit governing
the emission of hydrogen sulfide.
35.
That the Board assess a civil penalty of $25,000 per day for the violation.
36.
For such other relief as the Board may determine to be necessary.
/s/ Morton F. Dorothy_____________________________
Morton F. Dorothy, Complainant
Morton F. Dorothy
104 West University
Urbana IL 61801
217/384-1010
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 19, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPAIGN COUNTY, ILLINOIS
MORTON F. DOROTHY,
)
)
Complainant,
)
)
vs.
)
No. PCB 05-049
)
FLEX-N-GATE CORPORATION,
)
an Illinois Corporation,
)
)
Respondent.
)
CERTIFICATE OF SERVICE
I, the undersigned, certify that, on the 19th day of September, 2006, I served the
listed documents, by electronic mail, upon the listed persons:
AMENDED COMPLAINT
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
tsaffley@hdzlaw.com
webbc@ipcb.state.il.us
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph
Suite 11-500
Chicago, Illinois 60601
electronic filing system
/s/ Morton F. Dorothy____________________________
Morton F. Dorothy, Complainant
Morton F. Dorothy
104 W. University
Southwest Suite
Urbana IL 61801
217/384-1010
mdor4248@aol.com
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 19, 2006

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