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 the
RENEWAL OF RESPONDENT’S
PREVIOUSLY FILED MOTION FOR SUMMARY JUDGMENT,
a copy of which
is herewith served upon you.
Respectfully submitted,
FLEX-N-GATE CORPORATION,
Respondent,
Dated: December 26, 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, DECEMBER 26, 2006
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
RENEWAL OF RESPONDENT’S PREVIOUSLY FILED MOTION FOR SUMMARY
JUDGMENT 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 December 26, 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 December 26, 2006.
/s/ Thomas G. Safley
Thomas G. Safley
GWST:003/Fil/NOF and COS – Renewal of MSJ
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 26, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
RENEWAL OF RESPONDENT’S
PREVIOUSLY FILED MOTION FOR SUMMARY JUDGMENT
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 101.516, and for its Renewal of Respondent’s Previously Filed
Motion for Summary Judgment, states as follows:
1.
Pursuant to the Illinois Pollution Control Board’s (“Board”) October 20,
2005 Order in this matter, Flex-N-Gate filed an Amended Answer stating as an
Affirmative Defense that its management of hazardous waste is exempt from permitting
requirements.
2.
On June 19, 2006, Flex-N-Gate filed its Motion for Sanctions or, in the
Alternative, Summary Judgment on its Affirmative Defense (“Motion for Sanctions”).
Subsequent to the filing of that Motion, Complainant expressed a desire to amend his
Complaint.
3.
On August 29, 2006, the Hearing Officer granted Complainant time in
which to request leave of the Board to amend his Complaint.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 26, 2006
2
4.
Pursuant to the Hearing Officer’s August 29, 2006 Order, Complainant’s
proposed Amended Complaint and Motion for Leave to file the same were due on or
before September 19, 2006.
5.
On September 19, 2006, Complainant filed a document purporting to be
his Amended Complaint but failed to request leave of the Board to file an Amended
Complaint. Flex-N-Gate filed its response to Complainant’s document on October 3,
2006, stating the same.
6.
The Board ruled on Flex-N-Gate’s Motion for Sanctions on November 2,
2006, issuing an Order limiting Complainant to amending Count I of his originally filed
Complaint. The Board stated that its proscriptive ruling was intended as a sanction, in
response to Flex-N-Gate’s Motion for Sanctions, for Complainant’s failure to comply
with procedural rules thus resulting in repeated delays.
7.
Further, in its November 2, 2006 Order, the Board granted Complainant
time within which to move for leave to amend Count I of his Complaint. At the Board’s
direction, the deadline for any such Motion was December 4, 2006.
8.
Complainant has failed to file any motion for leave to amend his
Complaint within the time afforded him by the Board.
9.
Likewise, despite the requirement of 35 Ill. Admin. Code § 101.500(d),
Complainant failed to respond to Flex-N-Gate’s Motion for Sanctions within 14 days of
its filing.
10.
It is Flex-N-Gate’s understanding based on the Board’s November 2, 2006
Order, that the Board declined to rule on Flex-N-Gate’s Alternative Motion for Summary
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 26, 2006
3
Judgment solely because it was granting Complainant time in which to move for leave to
amend Count I of his Complaint.
11.
The Board further stated, however, that “if no amended complaint is filed”
by Complainant, Flex-N-Gate “may renew its motion for summary judgment or make any
other appropriate motion.” Board November 2, 2006 Order at 12.
WHEREFORE, Respondent FLEX-N-GATE CORPORATION, by its attorneys
HODGE DWYER ZEMAN, hereby renews it Alternative Motion for Summary Judgment
as to its Affirmative Defense and moves the Illinois Pollution Control Board to grant
FLEX-N-GATE CORPORATION summary judgment on its Affirmative Defense, and to
award FLEX-N-GATE CORPORATION all other relief just and proper in the premises.
Respectfully submitted,
FLEX-N-GATE CORPORATION,
Respondent,
Dated: December 26, 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
GWST:003/Fil/Renewal of Summary Judgment Motion
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 26, 2006