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 Flex-N-Gate Corporation’s
RESPONSE TO
COMPLAINANT’S MOTION FOR LEAVE TO AMEND COMPLAINT,
a copy of
which is herewith served upon you.
Respectfully submitted,
FLEX-N-GATE CORPORATION,
Respondent,
Dated: October 3, 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, OCTOBER 3, 2006
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
RESPONSE TO COMPLAINANT’S MOTION FOR LEAVE TO AMEND
COMPLAINT upon:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, Illinois 62794-9274
via electronic mail on October 3, 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 October 3, 2006.
/s/ Thomas G. Safley
Thomas G. Safley
GWST:003/Fil/NOF and COS – Response to Motion for Leave
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB No. 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
RESPONSE TO COMPLAINANT’S
MOTION FOR LEAVE TO AMEND COMPLAINT
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and for its Response to what
Flex-N-Gate construes as Complainant’s Motion for Leave to Amend Complaint, states
as follows:
I.
INTRODUCTION
1.
On September 19, 2006, Complainant filed an “Amended Complaint” in
this matter.
2.
As leave of the Illinois Pollution Control Board (“Board”) is required for a
party to file an amended pleading (see discussion below), Flex-N-Gate construes
Complainant’s filing as a Motion for Leave to file such “Amended Complaint.”
3.
As of the date of this Response, Complainant has not served his
“Amended Complaint” on the undersigned via regular mail or any other means allowed
by the Board’s rules (see 35 Ill. Admin. Code § 101.304); therefore, Flex-N-Gate cannot
determine the deadline for it to file this Response.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
2
4.
However, on September 19, 2006, Complainant did transmit his
“Amended Complaint” to the undersigned via electronic mail.
5.
Accordingly, Flex-N-Gate hereby files this Response to what it construes
as Complainant’s Motion for Leave to Amend Complaint.
II.
ARGUMENT
A.
Standard for Amended Pleadings
6.
A party may not file an amended pleading with the Board unless the Board
first gives its permission. 35 Ill. Admin. Code § 103.206(d); Kassella v. TNT Logistics
North America, Inc., PCB 06-1 (Ill.Pol.Control.Bd. Mar. 16, 2006).
7.
In particular, Section 103.206 of the Board’s regulations provides in
relevant part as follows:
d)
If a party wishes to file a counter-complaint, cross-complaint, or
third-party complaint, the party must move the Board for leave to
file the pleading. If a party wishes to file an amendment to a
complaint, counter-complaint, cross-complaint, or third-party
complaint that sets forth a new or modified claim against another
person, the party who wishes to file the pleading must move the
Board for leave to file the pleading.
e)
The pleading sought to be filed pursuant to subsection (d) of this
Section must:
1)
Set forth a claim that arises out of the occurrence or
occurrences that are the subject of the proceeding; and
2)
Meet the requirements of Section 103.204 of this Subpart.
35 Ill. Admin. Code § 103.206.
8.
Section 103.204(c) in turn provides:
The complaint must be captioned in accordance with 35 Ill. Adm. Code
101.Appendix A, Illustration A and contain:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
3
1)
A reference to the provision of the Act and regulations that
the respondents are alleged to be violating;
2)
The dates, location, events, nature, extent, duration, and
strength of discharges or emissions and consequences
alleged to constitute violations of the Act and regulations.
The complaint must advise respondents of the extent and
nature of the alleged violations to reasonably allow
preparation of a defense; and
3)
A concise statement of the relief that the complainant
seeks.
35 Ill. Admin. Code § 103.204(c).
9.
When considering whether to grant a Motion for Leave to Amend, the
Board considers four factors developed by Courts under the Illinois Rules of Civil
Procedure, namely:
1.
whether the proposed amendment would cure the defective
pleading;
2.
whether other parties would sustain prejudice or surprise by virtue
of the proposed amendment;
3.
whether the proposed amendment is timely; and
4.
whether previous opportunities to amend the pleading could be
identified.
People v. Community Landfill Co., Inc.
, PCB No. 97-193, 2004 Ill. ENV LEXIS 166, at
*6 (Ill.Pol.Control.Bd. May 18, 2004) (denying Motion for Leave to Amend).
10
Finally, a Motion for Leave to Amend must be “directed to the Board
rather than the Hearing Officer.” Kassella, PCB 06-1, at 2 (Ill.Pol.Control.Bd. Mar. 16,
2006).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
4
B.
The Board should Strike Complainant’s “Amended Complaint”
because Complainant has not Sought or Received Leave to File an
“Amended Complaint” from the Board.
11.
As a review of the Board’s docket in this matter makes clear, Complainant
did not file a Motion for Leave to Amend pursuant to Section 103.206(d).
12.
Complainant was aware of the requirement that he do so, as Flex-N-Gate
recently pointed out in a filing with the Board, stating:
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).
Flex-N-Gate’s Motion for Clarification of Hearing Officer Order or, in the Alternative,
for Immediate Telephonic Status Conference at 3.
13.
Despite the fact that Flex-N-Gate specifically pointed this fact out to
Complainant, Complainant failed to comply with the requirement of the Board’s rules
that he seek permission from the Board before filing an amended pleading.
14.
This continues Complainant’s pattern of failure to comply with the
Board’s rules, pointed out by Flex-N-Gate in previous filings with the Board, including,
but not limited to, Flex-N-Gate’s pending Motion for Sanctions or, in the Alternative, for
Summary Judgment (“Motion for Sanctions or Summary Judgment”).
15.
The Board should deny Complainant leave to amend his Complaint on this
ground alone, pursuant to 35 Ill. Admin. Code § 101.800, as a sanction for Complainant’s
continued failure to comply with the Board’s rules.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
5
C.
Even if Complainant had Filed a Proper Motion for Leave to Amend,
Complainant’s Proposed “Amended Complaint” does not Comply
with Section 103.204, and Attempts to State Deficient Claims.
16.
Further, even if Complainant had filed a Motion for Leave to Amend, as
Section 103.206(d) requires, the Board would not be able to grant Complainant leave to
amend because Complainant’s “Amended Complaint” does not comply with Section
103.204, and because the claims which Complainant attempts to include in his “Amended
Complaint” are legally deficient.
1.
Proposed Count I of Complainant’s “Amended Complaint”
17.
Complainant’s original Complaint contained six counts.
18.
On October 20, 2005, the Board granted Flex-N-Gate summary judgment
as to five of those counts.
19.
On June 19, 2006, Flex-N-Gate filed its Motions for Sanctions or
Summary Judgment as to the remaining count of Complainant’s Complaint, Count I, and
served that Motion on Complainant. See
Flex-N-Gate’s Motion for Sanctions or
Summary Judgment.
20.
On August 29, 2006, the Hearing Officer set a deadline of September 19,
2006, for Complainant to file a Response to Flex-N-Gate’s Motion for Sanctions or
Summary Judgment. See
Hearing Officer Order, August 29, 2006.
21.
Complainant did not file a Response to Flex-N-Gate’s Motion on that date
or otherwise; as noted above, however, Complainant did file his “Amended Complaint”
on that date.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
6
22.
Proposed Count I of Complainant’s “Amended Complaint” is
substantively identical to Count I of Complainant’s original Complaint, which was the
subject of Flex-N-Gate’s Motion for Sanctions or Summary Judgment, as:
•
both allege that Flex-N-Gate “is operating a hazardous waste
treatment and storage facility without a RCRA permit or interim
status”;
•
both relate to alleged “waste under the catwalk” at the facility; and,
•
both ask the Board to find that Flex-N-Gate has “violated the
RCRA permit requirement of Section 21(f) of the Environmental
Protection Act and 35 Ill. Adm. Code 703.121(a)” with regard to
such material.
Compare Complainant’s original Complaint at 3-4 with Complainant’s “Amended
Complaint” at 1-2.
23.
In fact, some of the language in proposed Count I of Complainant’s
“Amended Complaint” was copied verbatim from Count I of Complainant’s original
Complaint. See id.
24.
Complainant cannot avoid Flex-N-Gate’s Motion for Sanctions or
Summary Judgment simply by restating his Count I in an “Amended Complaint”;
otherwise, no respondent ever would be able to file a Motion for Sanctions or a Motion
for Summary Judgment, because complainants simply would file amended complaints.
25.
Further, it would be a waste of time to allow Complainant to file proposed
Count I of his “Amended Complaint” when Flex-N-Gate has demonstrated that the claim
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
7
that Complainant attempts to state in that count should be stricken. See Flex-N-Gate’s
Motion for Sanctions or Summary Judgment.
26.
That is, proposed Count I of Complainant’s “Amended Complaint” does
not “cure [a] defective pleading,” as required by the Board’s ruling in People v.
Community Landfill Co., Inc.; it perpetuates a defective pleading, namely Count I of
Complainant’s original Complaint.
27.
Flex-N-Gate’s Motion for Sanctions or Summary Judgment is ripe for
decision: Flex-N-Gate filed that Motion more than three months ago, and Complainant
has chosen not to file a Response to that Motion. See discussion above.
28.
The Board should strike Count I of Complainant’s original Complaint as a
sanction, or grant summary judgment to Flex-N-Gate as to that Count, for the reasons
stated in Flex-N-Gate’s Motion for Sanctions or Summary Judgment, and the Board
should then deny Complainant leave to file proposed Count I of his “Amended
Complaint” for the reasons stated above.
2.
Proposed Count II of Complainant’s “Amended Complaint”
29.
Count II of Complainant’s proposed “Amended Complaint” also is
deficient.
30.
As noted above, in order for the Board to allow an amended complaint,
“[t]he pleading sought to be filed … must: 1) Set forth a claim that arises out of the
occurrence or occurrences that are the subject of the proceeding; and 2) Meet the
requirements of Section 103.204” of the Board’s rules. 35 Ill. Admin. Code §
103.206(e).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
8
31.
One of the requirements of Section 103.204 is that “[t]he complaint must
… contain … [t]he dates, location, events, nature, extent, duration, and strength of
discharges or emissions and consequences alleged to constitute violations of the Act and
regulations” and “must advise respondents of the extent and nature of the alleged
violations to reasonably allow preparation of a defense.” 35 Ill. Admin. Code §
103.204(c).
32.
Complainant’s proposed Count II, however, contains none of this
information.
33.
That is, Complainant’s proposed Count II alleges that “material
accumulated on the floor under the plating line,” but does not allege “[t]he dates, …
events, nature, extent, duration, and strength” of such alleged accumulation. Rather,
proposed Count II only incorporates the “Allegations Common to All Counts,” which
merely state that “[s]pilled chemicals fall to the floor, where they accumulate to be
pumped to a treatment unit.” See “Amended Complaint,” Count II.
34.
Likewise, proposed Count II alleges that Flex-N-Gate “failed to determine
whether the material [allegedly] accumulated on the floor under the plating line was a
‘hazardous waste,’” but does not allege the timeframe(s) during which Flex-N-Gate
allegedly failed to make hazardous waste determinations. See
id.
35.
Without this information, Flex-N-Gate does not have sufficient
information to “advise [it] of the extent and nature of the alleged violations [so as] to
reasonably allow preparation of a defense,” as Section 103.204(c) requires. 35 Ill.
Admin. Code § 103.204(c).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
9
36.
For example, without knowing when it allegedly failed to make hazardous
waste determinations, Flex-N-Gate cannot determine whether such alleged failure
occurred more than five-years before Complainant filed his “Amended Complaint,” and
thus, whether proposed Count II is barred by the statute of limitations that applies to
claims brought under the Act by private individuals, 735 ILCS 5/13-205. See Union Oil
Co. of Cal. d/b/a Unocal v. Barge-Way Oil Co., Inc., et al., PCB No. 98-169, 1999 Ill.
ENV LEXIS 9, at **11-12, n.1 (Ill.Pol.Control.Bd. Jan. 7, 1999).
37.
Further, without knowing when it allegedly failed to make hazardous
waste determinations, Flex-N-Gate cannot know what witnesses it needs to interview or
documents it needs to review to prepare a defense to proposed Count II.
38.
Accordingly, for the reasons set forth above, Complainant’s proposed
Count II would be subject to a Motion to Dismiss for failure to state a claim if the Board
allows it to be filed, and thus would not “cure [a] defective pleading” but create a
“defective pleading.” See People v. Community Landfill Co., Inc.
39.
For this reason alone, the Board should deny Complainant leave to file his
proposed Count II.
40.
Further, without knowing what timeframe is at issue in proposed Count II,
neither Flex-N-Gate nor the Board can determine whether Count II “[s]ets forth a claim
that arises out of the occurrence or occurrences that are the subject of the proceeding,” as
required by Section 103.206(e). That is, the current “occurrence” that is “the subject of
the proceeding” at this time is Flex-N-Gate’s current management of material “on the
floor … under the catwalk” at its facility. See
Original Complaint, Count I, ¶ 1
(“Respondent is operating a hazardous waste treatment ….”) (Emphasis added.) If the
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
10
alleged failure to perform a hazardous waste analysis is historical, it may or may not
relate to the current “subject of the proceeding.”
41.
As Complainant has failed to allege sufficient information in order to
allow the Board to make the determination required by Section 103.206(e)(1), the Board
should deny Complainant leave to file his proposed Count II on this ground as well.
3.
Proposed Counts III and IV of Complainant’s “Amended Complaint”
42.
Proposed Counts III and IV of Complainant’s “Amended Complaint” each
ask the Board to “determine that respondent has violated 35 Ill. Adm. Code
722.133(a)(1).” See “Amended Complaint” at 4, 5.
43.
It appears that Complainant actually intended to cite to 35 Ill. Admin.
Code § 722.123(a)(1). See “Amended Complaint” at 4 (Count III, ¶ 4), citing to Section
“722.133(a)(1),” but quoting Section 722.123(a)(1).
44.
As Complainant notes in ¶¶4 of proposed Counts III and IV, Section
722.123(a)(1) provides as follows:
The generator [of hazardous waste] shall do the following: 1) Sign the
manifest certification by hand.
35. Ill. Admin. Code § 722.123(a)(1).
45.
However, nowhere in proposed Counts III or IV, or elsewhere in his
“Amended Complaint,” does Complainant allege that Flex-N-Gate ever failed to sign a
manifest certification by hand.
46.
Thus, proposed Counts III and IV do not comply with Section 103.204(c),
as Section 103.206(e) requires; that is, they do not set forth “[t]he dates, location, events,
nature, extent, duration, and strength of discharges or emissions” – or in this case, failure
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
11
to sign manifests – “and consequences alleged to constitute violations of the Act and
regulations” so as to “advise respondents of the extent and nature of the alleged violations
to reasonably allow preparation of a defense.” See 35 Ill. Admin. Code § 103.204(c).
47.
Flex-N-Gate cannot prepare a defense to a claim that it failed to sign
manifest certifications by hand if Complainant does not even allege that Flex-N-Gate
failed to do so, much less provide the “date, location” and other necessary information
regarding when it allegedly failed to do so.
48.
Further, the factual allegations contained in proposed Counts III and IV
regarding “waste minimization” have nothing to do with the regulation that Complainant
cites, Section 722.123(a)(1), which, as noted above, requires only that generators of
hazardous waste “[s]ign the manifest certification by hand.”
49.
Thus, if the Board allows proposed Counts III and IV to be filed, they
would be subject to dismissal by the Board, and thus, they do not “cure [a] defective
pleading,” they create a “defective pleading.”
50.
Further, proposed Counts III and IV do not appear in any way to set forth
“a claim that arises out of the occurrence or occurrences that are the subject of the
proceeding,” that is, whether Flex-N-Gate’s current management of material “on the floor
… under the catwalk” at its facility. See
Original Complaint, Count I, ¶ 1(“Respondent is
operating a hazardous waste treatment ….”) (Emphasis added.)
51.
That is, the current proceeding relates to Flex-N-Gate’s management of
“[s]pilled chemicals [which] fall to the floor, where they accumulate in sumps to be
pumped to a hazardous waste treatment unit.” Original Complaint, Common Allegations,
¶6.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
12
52.
On the other hand, Complainant’s proposed new Counts III and IV relate
to alleged “shipments of hazardous waste containing chromic acid and sludges resulting
from the treatment of chromic acid pursuant to uniform hazardous waste manifests,” and
whether Flex-N-Gate signed those manifests by hand. “Amended Complaint,” Count III,
¶2.
53.
By definition, shipments by Flex-N-Gate of material “pursuant to uniform
hazardous waste manifests” were shipments off-site
, as opposed to pumping of material
to an on-site “hazardous waste treatment unit.” See
35 Ill. Admin. Code § 722.120(a)(1)
(“A generator that transports hazardous waste or offers a hazardous waste for
transportation for off-site treatment, storage, or disposal … must prepare a manifest ….”)
(Emphasis added.)
54.
Thus, the alleged shipments at issue in proposed Counts III and IV are of
some completely different material than the material “on the floor … under the catwalk,”
which is the material that is “the subject of the proceeding” now before the Board.
55.
Accordingly, the Board also should deny Complainant leave to file
proposed Counts III and IV pursuant to the requirements of 35 Ill. Admin. Code §
103.206(e)(i).
4.
Proposed Count V of Complainant’s “Amended Complaint”
56.
Proposed Count V of Complainant’s “Amended Complaint” likewise is
deficient.
57.
First, it is barred, at least in part, by the applicable statute of limitations.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
13
58.
As noted above, the five-year statute of limitations set forth in 735 ILCS
5/13-205 applies to claims brought by private individuals before the Board. See
Union
Oil Co. of Cal. d/b/a Unocal.
59.
Proposed Count V is based on Complainant’s allegation that Flex-N-
Gate’s “contingency plan and amendments did not describe the actions respondent
intended to take” in response to specified situations. See “Amended Complaint,” Count
V.
60.
However, Complainant alleges that Flex-N-Gate filed its contingency plan
at issue in “May, 2001.” “Amended Complaint,” Count V, ¶1. (Emphasis added.)
61.
As this date is more than five years before Complainant filed his
“Amended Complaint,” Complainant’s proposed Count V, to the extent it relates to Flex-
N-Gate’s original filing of its contingency plan, is time-barred. See Union Oil Co.
62.
Second, proposed Count V fails to comply with the requirement of Section
103.204(c) that an amended complaint “must … contain … [t]he dates, location, events,
nature, extent, duration, and strength of discharges or emissions and consequences
alleged to constitute violations of the Act and regulations.” 35 Ill. Admin. Code §
103.204(c).
63.
With regard to Complainant’s allegation that after May 1, 2006, Flex-N-
Gate “filed amended contingency plans” which were improper, Complainant does not
allege “the dates” of such filings.
64.
Therefore, Complainant has not provided Flex-N-Gate or the Board the
information required by Section 103.204(c), necessary to determine whether proposed
Count V, as it relates to these later filings, also is barred by the statute of limitations.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
14
65.
In addition, proposed Count V merely alleges that “[t]he contingency plan
and amendments did not describe the actions respondent intended to take,” without
indicating what portion of the contingency plan is at issue, and what other actions Flex-
N-Gate allegedly did “intend[] to take.”
66.
Thus, proposed Count V does not “advise [Flex-N-Gate] of the extent and
nature of the alleged violations to reasonably allow preparation of a defense.” 35 Ill.
Admin. Code § 103.204(c).
67.
Third, Complainant’s proposed Count V does not “[s]et forth a claim that
arises out of the occurrence or occurrences that are the subject of the proceeding,” as
required under 35 Ill. Admin. Code § 103.206(e)(1).
68.
Proposed Count V alleges that Flex-N-Gate prepared “false contingency
plans.”
69.
At most, this allegation appears to relate to Counts II through VI of
Complainant’s original Complaint, as to which the Board has granted Flex-N-Gate
summary judgment.
70.
This allegation does not relate in any way to the question raised by Count I
of the current Complaint, namely, whether Flex-N-Gate is required to have a permit for
its management of alleged hazardous waste.
71.
Thus, for the reasons stated above, the Board should deny Complainant
leave to amend his Complaint to include proposed Count V.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
15
5.
Proposed Counts VI and VII of Complainant’s “Amended
Complaint”
72.
Finally, proposed Counts VI and VII of Complainant’s “Amended
Complaint” allege that Flex-N-Gate violated Section 9(b) of the Illinois Environmental
Protection Act (“Act”) by allegedly emitting hydrogen sulfide without “an air pollution
permit allowing the emission of hydrogen sulfide.” See “Amended Complaint,” Counts
VI, VII.
73.
Section 9(b) of the Act provides that:
No person shall … (b) 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.
415 ILCS 5/9(b).
74.
For purposes of Section 9(b):
“Air pollution” is the presence in the atmosphere of one or more
contaminants in sufficient quantities and of such characteristics and
duration as to be injurious to human, plant, or animal life, to health, or to
property, or to unreasonably interfere with the enjoyment of life or
property.
415 ILCS 5/3.115.
75.
Complainant did not in proposed Counts VI or VII even allege that Flex-
N-Gate emitted hydrogen sulfide “in sufficient quantities and of such characteristics and
duration as to be injurious to human, plant, or animal life, to health, or to property, or to
unreasonably interfere with the enjoyment of life or property,” much less allege any facts
to support such an allegation.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
16
76.
The Board has previously held that it will strike claims alleging violations
of Section 9(b) where a complainant “fails to allege any facts to support the allegation.”
Loschen v. Grist Mill Confections, Inc., PCB No. 97-174, 1997 Ill. ENV LEXIS 316, at
*11 (June 5, 1997) (striking an allegation in a complaint that the respondent violated
Section 9(b) where the “complainant fail[ed] to allege any facts to support the allegation
in her complaint.”)
77.
Accordingly, proposed Counts VI and VII also would only create a
defective complaint subject to dismissal, and the Board should deny Complainant leave
to file them on that grounds.
78.
In addition, as with some of the other counts of Complainant’s “Amended
Complaint,” Complainant has failed to provide any information from which the Board
could conclude that proposed Counts VI and VII are related to Complainant’s current
case – involving whether Flex-N-Gate is required to have a hazardous waste permit – as
required by 35 Ill. Admin. Code § 103.206(e).
79.
The Board should deny Complainant leave to file proposed Counts V and
VI on this ground as well.
WHEREFORE, the Respondent, FLEX-N-GATE CORPORATION, respectfully
prays that the Board strike Complainant’s document entitled “Amended Complaint” from
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006
17
the record, grant Flex-N-Gate’s outstanding Motion for Sanctions or Summary Judgment
as to Count I of Complainant’s Complaint, and award FLEX-N-GATE CORPORATION
such other relief as the Board deems just and proper in the premises.
Respectfully submitted,
FLEX-N-GATE CORPORATION
Respondent,
By:/s/ Thomas G. Safley
One of Its Attorneys
Dated: October 3, 2006
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:003/Fil/Response to Motion for Leave to Amend
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 3, 2006